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 A 
 
 (J 
 
 THE 
 
 LAW 
 
 CUTION 
 
 JUDGMENTS AND ORDERS 
 
 CHANCERY AND QUEEN'S BENCH DIVISIONS OF THE 
 HIGH COURT OF JUSTICE. 
 
 BY 
 
 C. JOHNSTON EDWARDS, 
 
 OF LIXCOLS'S INN, ESQ., BABBISTER-AT-LAW. 
 
 LONDON : 
 
 STEVENS AND SONS, 119, CHANCEEY LANE, 
 
 ^afo Ignblidgtn an& 
 
 1888
 
 LONDON : 
 FRINTED BY C. F. EOWOBTH, GBEAT NEW STEEET, FETTEE LANE, E.C.
 
 PREFACE. 
 
 THIS work is an attempt to supply a want long felt in the 
 legal profession. Every practitioner has experienced the 
 difficulty, after a judgment for payment of money has been 
 obtained, of realising the benefit of it. No less a difficulty 
 is met with in enforcing compliance, whether by attachment, 
 committal, or sequestration, with a personal order of the 
 Court. It is with the aim of explaining the practice in 
 these matters that the author presents this work to the 
 profession. The materials which have been collected together 
 can only be found elsewhere by reference to numerous 
 authorities and many books of practice. 
 
 Greatly extended remedies upon judgments and orders 
 have resulted from the consolidation of the Courts under the 
 Judicature Acts. The Rules of Court, though not altering 
 the effect of much of the old procedure, have been framed, so 
 far as possible, to assimilate the procedure in Chancery and 
 at Common Law. The result has been to render many 
 methods of execution directly available which could formerly 
 only be put in force by expensive and dilatory proceedings. 
 These methods naturally fall into the classes which have 
 formed the basis for the main division of the work. Book I. 
 treats of legal writs of execution, Book II. of process for 
 contempt, and Book III. of equitable and statutory methods 
 of execution, for enforcing the payment of money, by recourse 
 to various kinds of property. 
 
 It has been found necessary to confine the work to matters 
 generally in question between litigants. There is no attempt, 
 therefore, to discuss the practice on enforcement of orders in 
 
 a 2 
 
 7'
 
 IV PREFACE. 
 
 bankruptcy (notably committal orders under the Debtors Act, 
 1869). Crown process, again, is omitted from consideration, 
 and the punishment of persons in contempt in cases where it 
 consists of a want of respect to the Court, or a breach of its 
 disciplinary control over its officers, is left for treatises upon 
 the law relating to the particular persons whom it affects. 
 The subject of execution upon the judgments and orders of 
 inferior courts has not been included. 
 
 Special attention has been devoted to execution against 
 land. The complexity and uncertainty of the ordinary law 
 on this subject form of themselves a justification for the 
 appearance of a work in which it is considered. The effect of 
 the bankruptcy of a judgment debtor is everywhere borne in 
 mind. Execution against married women is discussed in a 
 separate Chapter. 
 
 The many statutory enactments and Rules of Court which 
 it has been found necessary to incorporate have been carefully 
 verified. In the List of Cases care has been taken to give 
 references to contemporary reports. The author has endea- 
 voured to make the work as complete as possible by including 
 all authorities reported to date. A number of practical forms 
 will be found in an Appendix, as will also the recent Sheriffs 
 Act of 1887. 
 
 The author desires to thank the many friends who have 
 assisted him in the arduous task of passing the work through 
 the press. 
 
 C. J. E. 
 
 LINCOLN'S INN, 
 
 May, 1888.
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 PREFACE . .. . . . . iii 
 
 TABLE or CASES . . . . . xi 
 
 TABLE OF STATUTES . . .'-., . >.. . Iii 
 
 TABLE OF EULES AND ORDERS OF THE SUPREME COURT . Ivii 
 
 INTRODUCTION . 
 
 BOOK I. 
 
 CONCERNING EXECUTION ON JUDGMENTS AND ORDERS CORRE- 
 SPONDING WITH EXECUTION ON JUDGMENTS AT LAW . 15 
 
 CHAPTER I. 
 
 "Writs of Execution generally . . . . .16 
 
 Section 1. Common law process by means of writs . .16 
 
 Section 2. General rules relating to execution . . 19 
 
 Sub-sect, (i). General application of Ord. XLII. . . 19 
 
 Sub-sect, (ii). Conditions upon which writs of execution 
 
 may issue . . . . . .20 
 
 Sub-sect, (iii). Rules relating to the actual issue of writs 
 of execution . . . . . . 30 
 
 Sub-sect, (iv). Stay of execution . . . .39 
 
 Sub-sect, (v). Limitation of time within which after the 
 
 judgment or order execution may issue . . . 43 
 
 Sub-sect, (vi). Order of issue of writs of execution . 47 
 
 Section 3. Change of parties by devolution of interest . . 48 
 
 Sub-sect, (i). Change of parties taking place before 
 
 verdict . . . . . .51 
 
 Sub-sect, (ii). Change of parties taking place after 
 
 verdict but before judgment . . . 51 
 
 Sub-sect, (iii). -Change of parties taking place after 
 
 judgment signed and before execution issued . .51 
 
 Sub-sect, (iv). Change of parties taking place after 
 execution issued, but before it is completed or return 
 made. . . . . . . 54 
 
 Section 4. Returns to writs of execution . . .56 
 
 Section 5. Discovery in aid of execution . . . . 64
 
 VI TABLE OF CONTENTS. 
 
 CHAPTER II. 
 
 PAGE 
 
 Officers of Execution The Sheriff . . . . .67 
 
 Section 1. Nature of the office of sheriff His officers and 
 
 substitutes . . . . . . 68 
 
 Section 2. Liability of sheriff and officers of execution . 77 
 
 Sub-sect, (i). Sheriff's liability for the due performance 
 
 of the mandate contained in the writ . . 78 
 
 Sub-sect, (ii). Sheriff's liability for acts done not within 
 the mandate of the writ ", . ' . .83 
 
 CHAPTEE in. 
 
 The Writ of Possession . . . . . . 93 
 
 Section I. Nature of the judgment or order for possession . 94 
 
 Section 2. Nature of the writ and execution thereof . . 100 
 
 CHAPTEE IV. 
 
 The Writ of Fieri Facias . . . .- . .108 
 
 Section 1. Property available under the writ, and the duties 
 
 of the sheriff with respect thereto . . .112 
 
 Sub-sect, (i). Goods and chattels . . . .113 
 
 Sub-sect, (ii). Terms of years . . . 128 
 
 Sub-sect, (iii). Other property seizable under a fi. fa. . 131 
 
 Sub-sect, (iv). The proceeds of the execution . . 136 
 
 Sub-sect, (v). The returns to the writ . . . 137 
 
 Sub-sect, (vi).- How the rights of landlords are protected 138 
 
 Section 2. The writs in aid of the writ of fieri facias . . 143 
 
 Section 3. Effect of certain statutes upon the execution, and 
 
 the duties of the sheriff under this writ . .146 
 Sub-sect, (i). The statute 13 Eliz. c. 5 . . .146 
 
 Sub-sect, (ii). The Bills of Sale Act, 1878 ; the Bills of 
 
 Sale Act, 1878, Amendment Act, 1882 . . 149 
 
 Sub-sect, (iii). The Bankruptcy Act, 1883 . . 152 
 
 Section 4. The sheriff's right to poundage and expenses of 
 execution . . . . . 155
 
 TABLE OF CONTENTS. Vll 
 
 CHAPTER V. 
 
 PAGE 
 
 The Writ of Elegit . . . . "" . 163 
 
 Section 1. The writ and the statutes on which it is founded . 163 
 Section 2. The duties of the sheriff under the writ, and its 
 
 effect on estates in land . . . . . 1Y1 
 
 Section 3. The effect of certain statutes on the rights of 
 
 judgment creditors with respect to land . . .188 
 
 Section 4. The sheriff's right to poundage and expenses of 
 execution Costs . 193 
 
 CHAPTER VI. 
 The "Writ of Delivery . . . . . .195 
 
 CHAPTER VH. 
 Execution against Clergymen . . . . .199 
 
 BOOK II. 
 
 CONCERNING METHODS OF EXECUTION WHERE DISOBEDIENCE 
 
 is A CONTEMPT OF COURT . . 209 
 
 CHAPTER I. 
 
 Of the Nature of a Contempt of Court .... 210 
 
 Section 1. Of the High Court 210 
 
 Section 2. The right to process for contempt . . . 213 
 
 Section 3. Execution by substitutionary process . ., 222 
 
 Section 4. Consequences of contempt .... 224
 
 Y1U TABLE OF CONTENTS. 
 
 CHAPTER II. 
 
 PAGE 
 
 The Writ of Attachment . . . * . .229 
 
 Section 1. The issue of the writ . . . . 230 
 
 Sub-sect, (i). The jurisdiction and rules of court indi- 
 cating when the writ is issuable . . . 230 
 Sub-sect, (ii). "Formalities of the judgment or order in 
 
 respect of which the writ is issuable . . .234 
 
 Sub-sect, (iii). The motion for leave to issue the writ . 239 
 Section 2. Effect of the writ . . ...' . .244 
 
 Sub-sect, (i). The arrest under the writ . . . 245 
 
 Sub-sect, (ii). Imprisonment under the writ . . 246 
 
 Sub-sect, (in). Detainer under a second writ . . 247 
 
 Sub-sect, (iv). Returns to the writ Serjeant-at-Arms . 249 
 Sub-sect, (v). Discharge of the order for the writ . 250 
 
 Sub-sect, (vi). Habeas corpus . ". . . 252 
 
 Sttb-sect. (vii). -The order for discharge from custody . 254 
 Sub-sect, (viii). Poundage . . . . 255 
 
 CHAPTER III. 
 
 Committal . . . . . . . . 256 
 
 Section 1. Committal as a method of relief to litigants . 258 
 Section 2. Special contempts ..... 260 
 
 Section 3. The order for committal and its effect . . 261 
 
 Section 4. The difference between committal and attach- 
 ment . . . . . . .263 
 
 Section 5. Committal under Debtors Act, 1869, s. 5 . 266 
 
 CHAPTER IV. 
 
 The Writ of Sequestration . . . . . 268 
 
 . . Section 1. The nature of the writ .... 268 
 
 Section 2. Practice on issue of writ, and on applications 
 consequent thereon . . . . . . 272 
 
 Section 3. Duties of the sequestrators . . . 276 
 
 Section 4. Effect of sequestration on rights of third parties . 277 
 Sub-sect, (i). Application of third parties pro interesse suo 277 
 Sub-sect, (ii). Proceedings by sequestrators for recovery 
 
 and management of property subject to sequestration . 281 
 Section 5. Property subject to the writ, and effect of writ 
 thereon . . . . . . . 283 
 
 Section 6. Ulterior consequences of sequestration, and work- 
 ing out of rights of parties thereunder . . . 289
 
 TABLE OF CONTENTS. IX 
 
 BOOK III. 
 
 PAGE 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION OVEB 
 
 PROPERTY . 294 
 
 CHAPTEE I. 
 
 Equitable Execution ^ 296 
 
 Section 1. Action to enforce a judgment or order against in- 
 terests in land . . . . . 296 
 Section 2. The charge given by sect. 13 of 1 & 2 Yict. c. 110 303 
 Section 3. Eeceivers . . . . - . . 311 
 Sub-sect, (i). When receivers are appointed . .311 
 Sub-sect: (ii). The effect of the receiver's appointment . 316 
 Sub-sect, (iii). Nature of property in respect of which 
 receivers are appointed . . . . .321 
 Section 4. Registration of judgments and methods of exe- 
 cution . . 326 
 
 CHAPTEE H. 
 Charging Orders over Stocks and Shares .... 331 
 
 CHAPTEE HI. 
 
 Attachment of Debts . . . . . . 349 
 
 Section 1. Procedure relating to the order for attachment of 
 
 debts ........ 350 
 
 Section 2. What can be attached under the order . . 355 
 
 Sub-sect, (i). Ordinary debts owing or accruing . 356 
 
 Sub-sect, (ii). Execution against pensions and other 
 
 periodical payments . . . . . 363 
 
 Section 3. The effect of the garnishee order . . . 369 
 
 Section 4. Attachment book and costs . . . 373
 
 TABLE OF CONTENTS. 
 
 CHAPTER IV. 
 
 PAGE 
 
 Execution against Married Women .... 375 
 
 Section 1. The law relating to execution against married 
 
 women prior to the 9th August, 1870 . . . 375 
 
 Section 2. The law relating to execution against married 
 
 women and their property on and after the 9th August, 
 
 1870, and prior to 1st January, 1883 . . .382 
 
 Section 3. The law relating to execution against married 
 
 women and their property after 31st December, 1882 . . 383 
 
 APPENDIX I. 
 Forms . 393 
 
 APPENDIX II. 
 The Sheriffs Act, 1887 455 
 
 APPENDIX III. 
 
 Table of Fees . 471 
 
 INDEX ... 477
 
 TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 Abbott, Ex parte, Ee Gourlay, 15 Oh. D. 447 ; 50 L. J. Ch. 
 
 80 ; 43 L. T. 417 ; 29 W. E. 143 - - - 167, 192 
 
 Abud v. Bicb.es, 2 Cb. D. 528 ; 45 L. J. Cb. 649 ; 34 L. T. 
 
 713 ; 24 W. E. 637 - - 231, 244 
 
 Ackland v. Paynter, 8 Price, 95 - - 120 
 
 Ackwortb v. Kempe, 1 Doug. 40 - - - 74 
 
 Adair v. Sbaw, 1 Scb. & Lef. p. 265 - 69 
 
 Adair v. Young, 11 Cb. D. 136 ; 40 L. T. 598 - - - 43 
 
 Adams v. Sparry, 1 Wils. 155 - - - - 57 
 
 Addis v. Baker, 1 Anstr. 222 - - - 127 
 
 Adkins v. Bliss, 2 De G. & J. 286 ; 4 Jur. N. S. 1162 - 238 
 Aireton v. Davis, 9 Bing. 740 ; 3 Mo. & Sc. 138 ; 2 L. J. 
 
 N. S. C. P. 89 144 
 
 Alcock, Ex parte, 1 C. P. D. 68 ; 45 L. J. C. P. 86 ; 33 L. T. 
 
 532 ; 24 W. E. 320 - 238 
 
 Alderton v. St. Aubyn, 6 M. & "W. 150 - - 207 
 
 Aldred v. Constable, 6 Q. B. 370 ; 8 Jur. 956 - 124 
 
 Allen v. Williams, 2 Sm. & G. 455 ; 24 L. J. Cb. 160 - - 200 
 Alleyne v. Darcy, 5 IT. Cb. E. 56 - - 133 
 
 Alton v. Harrison, W. N. (1869) 81 - - - 281 
 
 Ames v. Trustees of Birkenbead Docks, 20 Beav. 332 - 319 
 Amstell v. Lesser, 16 Q. B. D. 187 ; 55 L. J. Q. B. 114 ; 53 
 
 L. T. 750 ; 34 W. E. 230 239 
 
 Andrews v. Dixon, 3 B. & Aid. 645 - 140 
 
 Andrews v. Harris, 1 Q. B. 3 ; 1 Ga. & Day. 268 ; 10 L. J. 
 
 N. S. Q. B. 225 - - - 91 
 
 Andrews v. Saunderson, 1 H. & N. 725 ; 26 L. J. Ex. 208 ; 
 
 3 Jur. N. S. 118 - 48, 120 
 
 Andrews v. Sbarp, 2 Wm. Bl. 911 - - 70 
 
 Angel v. Smitb, 9 Ves. 335 - - 269, 277, 278, 279, 317 
 
 Angell v. Baddeley, 3 Ex. D. 49 ; 47 L. J. Ex. 86 ; 37 L. T. 
 
 653 ; 26 W. E. 137 63 
 
 Angerstein v. Hunt, 6 Ves. 488 - - 259 
 
 Anglo-Italian Bank v. Davies, 9 Cb. D. 275 ; 47 L. J. Ch. 
 
 833 ; 39 L. T. 244 ; 27 W. E. 3 - 188, 190, 298, 303, 307, 316
 
 Xll TABLE OF CASES. 
 
 PAGE 
 
 Annot Lyle, The, 11 P. D. 114; 55 L. J. P. 62; 55 L. T. 
 
 576 ; 34 W. E. 647 ; 6 Asp. M. C. 50 - - 42 
 Anon., 3 Salk. 160 - - 231 
 
 Anon., 2 Vent. 218 - - 114 
 
 Anon., 2 Ken. 372 - - 213 
 
 Anon., 2 Salk. 588 - - 106 
 
 Anon., 15 Ves. 174 - - - 214 
 
 Anon., Cro. Car. 579 - 253 
 
 Anon., 3 Atk. 567 - - 258 
 
 Apthorpe v. Apthorpe, 12 P. D. 192 ; 57 L. T. 518 ; 35 W. 
 
 E. 728 - - - - - -365,368 
 
 Arbrath v. North Eastern Eail. Co., 11 App. Cas. 247; 55 
 
 L. J. Q. B. 457 ; 55 L. T. 63 ; 32 W. E. 50 - 88 
 
 Arbuckle v. Cowtan, 3 B. & P. 321 - - 199 
 
 Archer v. Archer, W. N. (1886) 66 - - 323 
 
 Ardenv.Arden, 29Ch.D. 702; 54L. J. Ch.655; 52L.T. 610- 324 
 Armistead v. Philpot, 1 Doug. 231 - - 131 
 
 Arnell v. Weatherby, 3 Dowl. 464 ; 1 C. M. & E. 831 ; 5 Tyr. 
 
 484; 4 L. J. N. S. Ex. 123 - - - 37 
 
 Arnitt v. Garnett, 3 B. & Aid. 440 - - - 140 
 
 Arnold v. Mayor of Gravesend, 2 K. & J. 574 ; 25 L. J. Ch. 
 
 530 - - - - - - - 179 
 
 Artistic Colour Printing Co., In re, 14 Ch. D. 502 ; 49 L. J. 
 
 Ch. 526 ; 42 L. T. 802 ; 28 W. E. 943 - - 398 
 
 Arundel v. Gardiner, Cro. Jac. 652 - - 90 
 
 Ash v. Dawnay, 8 Exch. 237 ; 22 L. J. Exch. 59 - 82, 121 
 Ashburnham v. St. John, Cro. Jac. 85 - - - 176 
 
 Ashton v. Shorrock, 44 L. T. 530 ; 29 W. E. 117 - - 251 
 
 Ashworth v. Outram, 5 Ch. D. 943 ; 46 L. J. Ch. 687 ; 37 
 
 L. T. 85 ; 25 W. E. 896 214, 215 
 
 Ashworth v. Uxbridge (Earl), 2 Dowl. N. S. 337 ; 12 L. J. 
 
 N. S. Q. B. 39 - - - - 118 
 
 Aslin v. Parkin, 2 Burr. 665 - 97 
 
 Aston v. Gwinnell, 3 Yo. & Jer. 136 - - - 366 
 
 Att.-Gen. v. Coventry, 1 P. Wins. 206 - - 288 
 
 Att.-Gen. v. Fadden, 1 Price, 403 - - 254 
 
 Att.-Gen. v. Wilkinson, 28 L. J. Ch. 392 - - 176 
 
 Atwood v. Chichester, 3 Q. B. D. 722; 47 L. J. Q. B. 300; 
 
 38 L. T. 48 ; 26 W. E. 320 - - 378 
 
 Augustien v. Challis, 1 Exch. 279; 17 L. J. Exch. 73 - - 140 
 Australian Direct Steamship N. Co., Ee, L. E. 20 Eq. 325 ; 
 
 44 L. J. Ch. 676 - - 269 
 
 Avison v. Holmes, 1 J. & H. 530 ; 30 L. J. Ch. 564 ; 7 Jur. 
 
 N. S. 722 - 306 
 
 Ayres, In the Goods of, 8 P. D. 168 ; 31 W. E. 660 - 390
 
 TABLE OF CASES. Xlll 
 
 B. 
 
 PAQB 
 
 Backhouse v. Mellor, 28 L. J. Ex. 141 ; 4 H. & N. 116 - 37 
 Backhouse v. Siddle, 38 L. T. N. S. 487 119, 308 
 
 Badeley v. Consolidated Bank, 34 Ch. D. 536; 55 L. T. 
 
 635 ; 35 W. E. 106 - - 372 
 
 Badger v. Floid, 12 Mod. 398 - - - 99 
 
 Bagnall v. Carlton, 6 Ch. D. 130 ; 47 L. J. Ch. 30 ; 36 L. T. 
 
 730 ----- - 336 
 
 Bailey's Trusts, Ee, 38 L. J. Ch. 237 ; 20 L. T. 168 ; 17 
 
 W. E. 393 - - 307 
 
 Baillie v. Goodwin & Co., 33 Ch. D. 604; 55 L. J. Ch. 849 ; 
 
 55 L. T. 56; 34 W. E. 787 - - - 37 
 
 Baker v. Eye, 1 Dowl. 689 ; 2 L. J. N. S. Exch. 169 - 212 
 
 Baker v. Tynte, 2 El. & El. 897 ; 29 L. J. Q. B. 233 ; 6 
 
 Jur. N. S. 1192 - - - - - 336, 340 
 
 Balls v. Wingfield, 2 Nev. & Man. 831 - - 144 
 
 Ballard v. Tomlinson, 52 L. J. Ch. 656; 48 L. T. 515 ; 31 
 
 W. E. 563 - - - - - - 20, 234 
 
 BaUs v. Thick, 9 Jur. 304 - - 119, 135 
 
 Barker v. Braham, 2 Wm. Bl. 866 - - 88, 91 
 
 Barker v. Lavery, 14 Q. B. D. 769 ; 54 L. J. Ch. 241 ; 33 
 
 W. E. 770 - 42 
 
 Barker v. St. Quintin, 12 M. & W. 441 ; 1 Dowl. & L. 542 ; 
 
 13 L. J. N. S. Exch. 144 - - 81, 91 
 
 Barlee v. Barlee, 1 Add. 301 - 214, 217, 226, 243 
 
 Barlow v. Hall, 2 Anstr. 461 - - 38, 83 
 
 Barnard v. Leigh, 1 Stark. 43 - 144 
 
 Barnes v. Harding, 1 C. B. N. S. 568 - 172, 173 
 
 Barnett v. Earl of Guildford, 11 Exch. 19 ; 24 L. J. Exch. 
 
 281 - - - - 99, 107 
 
 Barrow v. BeU, 5 El. & Bl. 540 ; 25 L. J. Q. B. 2 - - 123 
 Bartlett v. Stinton, L. E. 1 C. P. 483 ; 35 L. J. C. P. 238 ; 
 
 12 Jur. N. S. 342 ; 14 L. T. N". S. 287 ; 14 W. E. 614 - 38 
 Barton v. Gill, 1 D. & L. 593 ; 12 M. & W. 315 ; 13 L. J. 
 
 Ex. 83 - - 144 
 
 Barwick v. Eeade, 1 H. Bl. 627 - - 365 
 
 Bastard v. Tratch, 5 N. & M. 109 ; 3 A. & E. 451 ; 4 L. J. 
 
 N. S. K B. 214 - - 70 
 
 Batchelor v. Vyse, 4 Moo. & Sc. 171 ; 1 L. J. N. S. C. P. 
 
 179 - - - - - - - - 124 
 
 Bateman v. Freston, 30 L. J. Q. B. 133 ; 7 Jur. N. S. 391 ; 
 
 3 L. T. N. S. 670 ; 9 W. E. 311 - - 248 
 
 Bates v. Bates, W. N. (1884) 129 - 360, 364 
 
 Bates v. Brothers, 2 Sm. & G. 509 ; 23 L. J. Ch. 782 - 207
 
 XIV TABLE OF CASES. 
 
 PAGE 
 
 Bates v. Pilling, 6 B. & C. 38 ; 9 Dowl. & Ey. 44 ; 5 L. J. 
 
 K. B. 40 - - - 90, 91 
 
 Battine, Ex parte, 4 B. & Ad. 690 ; 1 Nev. & Man. 579 - 366 
 Baynard v. Simmons, 5 El. & Bl. 59 ; 24 L. J. Q. B. 253 - 351 
 Baynton v. CoUins, 27 Ch. D. 604 ; 53 L. J. Ch. 1112 ; 33 
 
 W. E. 41 - - - - - - - 384 
 
 Beall v. Smith, 9 Ch. 85 ; 43 L. J. Ch. 245 ; 29 L. T. 625 ; 
 
 22 W. E. 121 - - - - - 244 
 
 Beard v. Knight, 8 E. & B. 865 ; 27 L. J. Q. B. 359 ; 4 Jur. 
 
 N. S. 782- - - 141 
 
 Beaufort (Duke of) v. Phillips, 1 De G. & S. 321 - - 217 
 
 Beavan v. Earl of Oxford (2), 6 De G. M. & G. 507 ; 25 L. 
 
 J. Ch. 299 - - 179, 306 
 
 Beckett v. Buckley, L. E. 17 Eq. 435 ; 22 W. E. 294 306, 307 
 Beckford v. Welby, 2 Esp. 591 - 74 
 
 Beddingfield v. Zouch, Freem. Ch. E. 168 269, 270 
 
 Bell v. Denver, 54 L. T. 729; 34 W. E. 368 ; W. N. (1886), 
 
 113 - - 23 
 
 Bell's Estate, Ee, Foster v. BeU, L. E. 9 Eq. 172 ; 21 L. T. 
 
 781 ; 18 W. E. 369 - - 231, 264, 320 
 
 Bennet v. Davis, 2 P. Wms. 316 - - 384 
 
 Bennett's Case, 2 Sfcra. 787 - - 140 
 
 Bennett v. Apperley, 6 B. & C. 630 ; 5 L. J. K. B. 276 - 203 
 Bennett v. Button, 2 Mer. 400 - - 242, 244 
 
 Berkeley v. King's College, Cambridge, 10 Beav. 602 - 366 
 Best v. Pembroke, L. E. 8 Q. B. 363 ; 42 L. J. Q. B. 212 ; 
 
 21 W. E. 919 - - - - - 351 
 
 Bethell's Case, 1 Salk. 348 - - 353 
 
 Bible v. Hussey, Ir. E. 2 C. L. 308 - - 140 
 
 Biddulph v. Gray, 5 Dowl. 406 - - 243 
 
 Bilke v. Havelock, 3 Camp. 374 - 158, 159 
 
 Birch v. Birch, 8 P. D. 163 ; 52 L. J. P. 88 ; 32 W. E. 96 - 364, 
 
 368 
 Birchall v. Pugin, L. E. 10 C. P. 397 ; 44 L. J. C. P. 278 ; 
 
 32 L. T. 495 23 W. E. 923 - - - 373 
 
 Bird v. Bass, 6 Man. & Gr. 143 ; 6 Sc. N. E. 928 - - 119 
 
 Bird v. Littlehales, 3 Swanst. 299 - 277, 278, 284 
 
 Bishop's Waltham Ey. Co., Ee, L. E. 2 Ch. 382 ; 15 W. E. 
 
 96 - 301 
 
 Bissicks v. Bath Colliery Co., 2 Ex. D. 459; 46 L. J. Q. B. 
 
 611; 36 L. T. 800; on appeal, 3 Ex. D. 174; 47 L. J. 
 
 Exch. 408 ; 38 L. T. 163 ; 26 W. E. 215 - - 157 
 
 Blades v. Arundale, 1 M. & S. 711 120, 122 
 
 Blaiberg, Ex parte, Ee Toomer, 23 Ch. D. 254 ; 52 L. J. 
 
 Ch. 461 ; 48 I/. T. 441 ; 31 W. E, 906 - - - 150
 
 TABLE OF CASES. XV 
 
 PAGE 
 
 Blake v. Newburn, 5 D. & L. 601 ; 17 L. J. Q. B. 216 - 162 
 Blakely Ordnance Co., Ee, 46 L. J. Ch. 367 ; 35 L. T. 617 ; 
 
 25 W. E. Ill - - - - - - 340 
 
 Blaksley's Trust, 23 Ch. D. 549 ; 48 L. T. 776 - - - 347 
 Blanchenay v. Burt, 4 Q. B. 707 ; 3 Ga. & Day. 613 ; 12 
 
 L. J. N. S. Q. B. 291 - - - - 44 
 Blanchett, Ex parte, 17 Q. B. D. 303 ; 55 L. J. Q. B. 327 ; 
 
 34 W. E. 538 - - - - - - 351 
 
 Bolton v. Bolton, 3 Ch. D. 276 ; 24 W. E. 663 ; 35 L. T. 
 
 358 - - - - - - - 112 
 
 Bond v. Bell, 4 Drew. 157 ; 27 L. J. Ch. 233 ; 3 Jur. N. S. 
 
 1290 - - - - - - - 3, 305 
 
 Booth v. Trail, 12 Q. B. D. 8 ; 53 L. J. Q. B. 24; 49 L. T. 
 
 471 ; 32 W. E. 122 - - - - 363, 368 
 
 Botten v. Tomlinson, 16 L. J. C. P. 138 - - 81 
 
 Bouch v. Sevenoaks, Maidstone and Tunbridge Eail. Co., 
 
 L. E. 4 Ex. D. 133 ; 48 L. J. Exch. 338 ; 40 L. T. 560 ; 
 
 27 W. E. 507 - - - - - - 361 
 
 Boucher v. Wiseman, Cro. Eliz. 440 - - - 115 
 
 Bowen, Ee, 9 Jur. N. S. 612 - 238 
 
 Bowring v. Pritchard, 14 East, 289 ; 1 Chit. E. 375, n. - 68, 76 
 Boyse v. Simpson, 8 IT. C. L. E. 523 - 358 
 
 Brace v. Duchess of Marlborough, 2 P. Wins. 492 - 175, 188, 
 
 306 
 Bradford Banking Co. v. Briggs, 12 Ap. Ca. 29; 56 L. J. 
 
 Ch. 364 ; 56 L. T. 62 ; 35 W. E. 521 - - 338, 345 
 
 Bradford v. Young, 26 Ch. D. 656 ; 50 L. T. 707 ; 32 W. E. 
 
 901 - - - - - 10 
 
 Bradford v. Young, 28 Ch. D. 18 ; 54 L. J. 368 ; 51 L. T. 
 
 550; 33 W. E. 159 - - - - - 43 
 
 Bradley v. Copley, 1 C. B. 685 ; 14 L. J. C. P. 222 - - 134 
 Bragner v. Langmead, 7 T. E. 20 - - - - 51 
 
 Braithwaite v. Marriott, 1 H. & C. 591 ; 32 L. J. Ex. 24 - 160, 
 
 473 
 Brasyer v. Maclean, L. E. 6 P. C. 398; 44 L. J. P. C. 79 ; 
 
 33 L. T. 1 - - - - - - 75 
 
 Brearcliff v. Dorrington, 4 De G. & S. 122 ; 14 Jur. 1101 - 341 
 Bright v. Tyndall, 4 Ch. D. 189 ; 25 W. E. 109 - - 14 
 
 Brinsmead v. Harrison, L. E. 7 C. P. 547 ; 41 L. J. C. P. 
 
 190 ; 27 L. T. 99 ; 20 W. E. 784 - 195, 197 
 
 Bristed v. Wilkins, 3 Ha. 235 - 305, 342, 343, 348 
 
 Bristol's (Bishop of) Case, 3 Leo. 113 - - 174, 178 
 
 Brocher v. Pond, 2 Dowl. 472 - 32 
 
 Brograve v. "Watts, Cro. Eliz. 651 - - 285 
 
 Bromage v. Vaughan, 7 Ex. 223 ; 21 L. J. Exch. Ill - 200
 
 XVI TARLE OF CASES. 
 
 PAGE 
 Brooke, Ee, Ex parte Hassall, 9 Ch. 301 ; 43 L. J. Bank. 
 
 49 ; 30 L. T. 103 ; 22 W. E. 395 - - - 155 
 
 Brookes d. Mence v. Baldwin, Barnes, 468 - 102, 405 
 
 Brooks v. Greathed, 1 Jac. & W. 176 - - - 277 
 
 Brown v. Bamford, 9 M. & W. 42 ; 1 Dowl. N. S. 361 ; 11 
 
 L. J. N. S. Exch. 53 - 332 
 
 Brown v. Jarvis, 1 M. & W. 704 ; 1 Tyr. & Gr. 1033 ; 5 
 
 Dowl. 281 ; 5 L. J. N. S. Exch. 271 - - 80 
 
 Brown v. Perrott, 4 Beav. 585 - - - 322 
 
 Browning, Ex parte, Ee Craycraft, 8 Ch. D. 596 ; 47 L. J. 
 
 Ch. 96 ... 160 
 
 Browning v. Sabin, 5 Ch. D. 511 ; 46 L. J. Ch. 728 - - 241 
 Bran v. Hutchinson, 2 D. & L. 43 ; 13 L. J. N. S. Q. B. 
 
 244 - - - - 157 
 
 Bryant, Ee, 4 Ch. D. 98 ; 35 L. T. 489 ; 25 W. E. 230 - 251, 259 
 Bryant v. Bull, 10 Ch. D. 153 ; 48 L. J. 325 ; 39 L. T. 470 ; 
 
 27 W. E. 246 - - 312,321,323 
 
 Bryant v. Glutton, 1 M. & W. 408 ; 1 Tyr. & Gr. 843 ; 5 
 
 Dowl. 66 ; 5 L. J. Exch. 182 - - - 91 
 
 Brydges v. Walford, 6 M. & S. 42 - - 62 
 
 Buist v. Bridge, 43 L. T. 432 ; 29 W. E. 117 - 256, 257, 258, 
 
 264 
 Bull v. Faulkner, 1 De G. & S. 685 ; 17 L. J. Ch. 23 ; 12 
 
 Jur. 33 - 185, 417 
 
 Bullen v. Ansley, 6 Esp. Ill - 159 
 
 Bullock v. Dobbs, 2 B. & Aid. 258 - - 117, 133 
 
 Bunter v. Cress well, 19 L. J. Q. B. 357 - - 206 
 
 Burden v. Kennedy, 3 Atk. 739 - 129, 299 
 
 Burdett v. Abbott, 14 East, 162 - - 245 
 
 Burdett v. Abbott, 5 Dow. 165 - - - 253 
 
 Burdett v. Eockley, 1 Vern. 58 - 290 
 
 Burne v. Eobinson, 7 Ir. Eq. E, 188 - - - 268 
 
 Burneley v. Overseers of Methley, 28 L. J. M. C. 152 - 203 
 Burns v. Irving, 3 Ch. D. 291 ; 46 L. J. Ch. 423; 25 W. E. 66- 336 
 Bursill v. Tanner, 13 Q. B. D. 691 ; 50 L. T. 589 ; 32 W. E. 
 
 827 - 386, 387 
 
 Burslem v. Fern, 2 Wils. 47 - - 73 
 
 Burton v. Eoberts, 6 H. & N. 93 ; 29 L. J. Exch. 484 - 361 
 Butcher v. Butcher, 1 Man. & Eyl. 220 ; 7 B. & C. 399 ; 6 
 
 L. J. K B. 51 - - - - - - 99 
 
 Butler v. Wallis, Cro. Eliz. 463 - - 99 
 
 Butler v. Wearing, 17 Q. B. D. 182 - 373 
 
 Byrne, Ee, 6 L. E. Ir. 455 - 220, 236, 254 
 
 Byrne v, Hutchinson, 9 Ir. E. C. L. 75 - - 156, 158
 
 TABLE OF CASES. XVU 
 
 C. 
 
 PAGE 
 
 Cadell v. Smith, 3 Swanst. 308; 3 Bro. C. C. 362 - - 286 
 
 Caermarthen v. Hawson, 3 Swanst. 294 - 283, 285, 290, 292 
 Callow v. Young, 56 L. J. Ch. 690 ; 56 L. T. 147 ; W. N. 
 
 (1887) 36 ----- 257, 263 
 
 Calvert v. Joliffe, 2 B. & Ad. 418 ; 9 L. J. K. B. 240 - - 142 
 Cameron v. Lightfoot, 2 Win. Bl. 1190 - - 90 
 
 Cameron v. Reynolds, Cowp. 406 - - 72, 144 
 
 Carew v. Cooper, 4 Giff. 619 ; 33 L. J. Ch. 289 - - 367 
 
 Carlile v. Parkins, 3 Stark. 163 - 82, 124 
 
 Carlon v. Farlar, 8 Beav. 525 - 311 
 
 Carrett v. Smaltpage, 9 East, 330 - - 91 
 
 Carter v. Hughes, 2 H. & N. 714 ; 27 L. J. Exch. 225 - 184, 
 
 192, 193, 308 
 
 Carus Wilson's Case, 7 Q. B. 984 - - 262 
 
 Cash v. Wells, 1 B. & Ad. 375 - - - 38 
 
 Casseldine v. Munday, 2 Dowl. 169 - 173 
 
 Cassidy v. Steuart, 2 Sc. N. E. 432 ; 3 Man. & Gr. 575 ; 
 
 10 L. J. N. S. C. P. 57 - - - - - 4 
 
 Caudwell v. Colton, 10 C. B. 575 - - 200 
 
 Chadwick v. Holt, 8 De G. M. & G. 584 ; 26 L. J. Ch. 76 - 336 
 Chambers v. Coleman, 9 Dowl. 588 ; 10 L. J. N. S. Q. B. 361 138 
 Champneys v. Burland, 23 L. T. 584 ; 19 W. E. 148 - 191 
 
 Chapman v. Biggs, 11 Q. B. D. 27 ; 48 L. T. 704 - - 376 
 Chapman v. Bowlby, 1 Dowl. N. S. 83 ; 8 M. & W. 249 ; 
 
 10 L. J. N. S. Exch. 299 - - - - 60, 158 
 
 Chapman v. Freston, 30 L. J. Ex. 89 ; 7 Jur. N. S. 78 ; 
 
 3 L. T. N. S. 705 ; 9 W. E. 315 - - - - 248 
 
 Chatterton v. Watney, 17 Ch. D. 259 ; 50 L. J. Ch. 535 ; 44 
 
 L. T. 391 ; 29 W. E, 573 - - - 360, 370 
 
 Cheasley v. Barnes, 10 East, 73 - - 86 
 
 Chick v. Smith, 8 Dowl. 337 ; 4 Jur. 86 - - 54 
 
 Chilton v. Carrington, 15 C. B. 730 ; 24 L. J. C. P. 78 196, 221 
 Chilton v. Ellis, 2 Or. & M. 459 ; 4 Tyr. 369 ; 2 Dowl. 338 - 212 
 Chinery, Ex parte, 12 Q. B. D. 342 ; 53 L. J. Ch. 662 ; 50 
 
 L. T. 342 ; 32 W. E, 469 - - - - 20, 354 
 
 Chinnery v. Evans, 11 H. L. Cas. 115 - - - 320 
 
 Christopherson v. Burton, 3 Exch. 160 ; 18 L. J. Exch. 60 - 148 
 Churchill v. Bank of England, 11 M. & W. 323; 2 Dowl. 
 
 N. S. 767 ; 12 L. J. N. S. Exch. 233 - 340, 343 
 
 Clarbrough v. Toothill, 17 Ch. D. 787 ; 50 L. J. Ch. 743 - 10 
 Clare v. Wood, 4 Ha. 81 - - 309 
 
 E. b
 
 XV111 TABLE OF CASES. 
 
 .PAGE 
 
 Clark v. Cullen, 9 Q. B. D. 355 - - 29 
 
 Clarke, Ex parte, 1 Euss. & My. 563 - 258 
 
 Clarke, In the matter of, 2 Q. B. 619 ; 2 Ga. & Day. 780 ; 
 
 11 L. J. N. S. Q. B. 75 - - 61, 262 
 
 Clarke v. Clement, 6 T. E. 525 - - 35 
 
 Claydon v. Finch, L. E. 15 Eq. 266 ; 42 L. J. Ch. 416 ; 28 
 
 L. T. 101 - - - - 286, 288 
 
 Cleaver v. Fisher, 2 Dowl. N. S. 292 - 61 
 
 Clements, Ee, Eepublic of Costa Eica v. Erlanger, 46 L. J. 
 
 Ch. 375 - - 215 
 
 Clerk v. Withers, 1 Salk. 322 ; 6 Mod. 299 ; 2 Ld. Eaym. 
 
 1073 - - - - 55, 123, 144, 145 
 
 Cleve v. Vere, Cro. Car. 459 - 54 
 
 Clifton v. Hooper, 6 Q. B. 468 ; 14 L. J. N. S. Q. B. 1 - 81 
 Clutterbuck v. Jones, 15 East, 78 - 144 
 
 Cobbett's Case, 7 Q. B. 187 - 261 
 
 Cobbett v. Wheeler, 3 El. & El. 358 ; 30 L. J. Q. B. 64 - 36 
 Cobbold v. Chilver, 1 Dowl. N. S. 726 ; 4 Man. & Gr. 62 ; 
 
 4 Sc. N. E. 678 ; 11 L. J. C. P. 173 - - - 37 
 
 Cobham v. Dalton, L. E. 10 Ch. 655 ; 44 L. J. Ch. 752 ; 23 
 
 W. E. 865 - - 216 
 
 Cocker v. Musgrove, 9 Q. B. 223 ; 15 L. J. Q. B. 365 - 140, 142 
 Coggs v. Bernard, 2 Ld. Eaym. 909 ; 1 S. L. C. 9th ed. 201 - 80 
 Cohen v. Hale, 3 Q. B. D. 371 ; 47 L. J. Q. B. 496 ; 39 L. T. 
 
 35 ; 26 W. E. 680 - - - 357 
 
 Cole v. Davies, 1 Ld. Eaym. 724 - - 120 
 
 Cole v. Terry, 5 L. T. N. S. 347 - - 158 
 
 Coleman v. Eawlinson, 1 F. & F. 330 - 129 
 
 Collett v. Dickenson, 11 Ch. D. 687 ; 40 L. T. 394 - - 378 
 Collett v. Foster, 26 L. J. Ex. 412; 2 H. & N. 356 - 91 
 
 Collingridge v. Paxton, 11 C. B. 683; 2 L. M. & P. 654; 
 21 L. J. C. P. 39 - - 132 
 
 Colls v. Coates, 11 A. & E. 826 ; 3 Per. & Day. 511 ; 9 L.J. 
 
 N. S. Q. B. 232 - - - - - - 157 
 
 Colonial Bank v. Whinney, 30 Ch. D. 261 ; 55 L. J. Ch. 
 
 585; 53 L. T. 272; 33 W. E. 852. On appeal, 11 App. 
 
 Gas. 426 ; 56 L. J. Ch. 43 ; 55 L. T. 362 ; 34 W. E. 705 - 331 
 Colyer v. Speer, 4 Moore, 473 ; 2 Bro. & Bing. 67 - - 140 
 
 Commissioners of Donations v. Archbold, 14 Ir. C. L. E. 67- 351 
 Commonwealth Land, &c. Co., Ee, 22 W. E. 106; 43 L. J. 
 
 Ch. 99 ; 29 L. T. N. S. 502 - - - 38 
 
 Comyn v. Brandlyn, Moore, 873 - - 186 
 
 Coney v. Bennett, Ee Coney, 29 Ch. D. 993 ; 54 L. J. Ch. 
 
 1130 ; 52 L. T. 961 ; 33 W. E. 701 - - 20, 321 
 
 Conn v. Garland, L. E. 9 Ch. 101 ; 22 W. E. 175 - - 287
 
 TABLE OF CASES. XIX 
 
 PAGE 
 
 Connan, He, Ex parte Hyde, 20 Q. B. D. 690 - - - 370 
 
 Connor v. West, 5 Burr. 2672 - 102 
 
 Conolan v. Leyland, 27 Oh. D. 632 - - 387 
 
 Cook v. Palmer, 6 B. & 0. 739; 9 D. & E. 723; 5 L. J. 
 K. B. 234 - - - - - - - 124 
 
 Cooper's Case, Cro. Car. 544 - - 73 
 
 Cooper v. Asprey, 3 B. & S. 932 ; 32 L. J. Q. B. 209 - 74 
 
 Cooper v. Gardner, 3 A. & E. 211 - - 172 
 
 Cooper v. Hunchin, 4 East, 521 - - - - 25 
 
 Cooper v. Beilly, 1 Euss. & My. 560 ; 2 Sim. 560 - - 366 
 Cooper v. WiUomatt, 1 C. B. 672 ; 14 L. J. C. P. 219 - 134 
 Copeland v. Mape, 2 Ba. & Be. 66 276, 279, 281, 436 
 
 Coppell v. Smith, 4 T. E. 312 - 358 
 
 Coppendale v. Debonaire, Barnes, 213 - - - 60 
 
 Corbet's Case (Sir Andrew), 4 Eep. 82a - - 184 
 
 Corbet v. Brown, 6 Dowl. 794 - - 74 
 
 Corbett v. Lewin, W. N. (1884) 62 - 197, 221 
 
 Cork (Earl of) v. Eussell, L. E. 13 Eq. 210 ; 41 L. J. Ch. 
 
 226 ; 26 L. T. 230 ; 20 W. E. 164 - - - 307 
 
 Cornish v. SeareU, 8 B. & C. 471 ; 1 Man. & Ey. 703 - - 282 
 Cotes v. Michill, 3 Lev. 20 - - 91 
 
 Cottenham v. Bang, 1 Burr. 623 - - 101 
 
 Coulston v. Gardiner, 3 Swanst. 279 ; 2 Ch. Ca. 43 - 283, 285, 290 
 Courtoy v. Vincent, 15 Beav. 486 ; 21 L. J. Ch. 291 - 347 
 Cowan's Estate, Ee, 14 Ch. D. 638 ; 49 L. J. Ch. 402 ; 42 
 
 L. T. 866 ; 28 W. E, 827 - - - - 356, 360 
 
 Cowan v. Carlill, 52 L. T. 431 ; 33 W. E. 583 - - 66, 355 
 
 Cowbridge Eail. Co., Ee, L. E. 5 Eq. 413 ; 37 L. J. Ch. 306 ; 
 
 18 L. T. 102 ; 16 W. E. 506 - 308 
 
 Cowper v. Taylor, 16 Sim. 314 - - - 287 
 
 Cowperthwaite v. Owen, 3 T. E. 657 - 33 
 
 Cox v. Barker, 3 Ch. D. 359 ; 35 L. T. 685 - - 14 
 
 Cox v. Leigh, L. E. 9 Q. B. 333 ; 43 L. J. Q. B. 123 ; 30 
 
 L. T. 494 ; 22 W. E. 730 - - - - - 141 
 
 Cragg v. Taylor, L. E. 2 Exch. 131 ; 36 L. J. Exch. 63 ; 15 
 
 L. T. 584 - - - - - - 340 
 
 Crawley v. Lidgeat, Cro. Jac. 338 - - 170 
 
 Craycraft, Ee, Ex parte Browning, 8 Ch. D. 596 ; 47 L. J. 
 
 Bank. 96 ; 38 L. T. 364 ; 26 W. E. 559 - - 160 
 
 Cremetti v. Crom, 4 Q. B. D. 225 ; 48 L. J. Q. B. 337 ; 27 
 
 W. E. 411 - ... 20, 351 
 
 Crispin v. Cumano, L. E. 1 P. & M. 622 ; 38 L. J. P. & M. 
 
 54; 20 L. T. 150; 17 W. E. 585 - - - 287, 369 
 
 Crofts v. Oldfield, 3 Swanst. 278 - - 284 
 
 b2
 
 XX TABLE OF CASES. 
 
 PAGE 
 
 Cropper v. Smith, 24 Oh. D. 305 ; 49 L. T. 548 ; 32 W. K. 
 212 ______ 42 
 
 Crossley, Ee, 6 T. E. 701 - - 243 
 
 Crow v. Wood, 13 Beav. 271 - 317, 319 
 Croydon County Court, Eegistrar of, Ex parte, 17 Q. B. D. 
 
 389 ; 55 L. J. Q. B. 362 ; 54 L. T. 722 ; 34 W. E. 711 ; 3 
 
 Mor. B. E. 174 - - 42 
 
 Cruikshank v. Moss, 8 L. T. N. S. 439 - - 21 
 
 Cuddington v. Withy, 2 Swanst. 174 - - - 208 
 Culley v. Buttifant, 1 Ch. D. 84 ; 45 L. J. Ch. 200 ; 24 W. 
 
 E. 55 - - - - - - 249 
 
 Culverhouse v. Wickens, L. E. 3 C. P. 295 ; 38 L. J. C. P. 
 
 107 ; 17 L. T. 478; 16 W. E. 402 - 371 
 
 Cunningham, Ee, W. N. (1886) 197 ; 55 L. T. 766 - - 237 
 Curlewis v. Bird, 1 Dowl. N. S. 752; 11 L. J. N. S. Q. B. 
 
 273 ; 6 Jur. 669 - - 161 
 
 Curtis v. Mayne, 2 Dowl. N. S. 37 - - - - 160 
 
 D. 
 
 Dacres v. Chute, 1 Vern. 160 - 283 
 
 Dallas v. Glyn, 3 Ch. D. 190 ; 46 L. J. Ch. 51 ; 34 L. T. 897 ; 
 
 24 W. E. 881 231, 251 
 
 Dallow v. Garrold, Ex parte Adams, 14 Q,. B. D. 543 ; 54 
 
 L. J. Q. B. 76 ; 52 L. T. 240 ; 33 W. E. 219 - 372, 373 
 Danby v. Lawson, Prec. in Ch. 1 10 - - 246 
 
 Daniel v. Bishop, M'Clel. 61 ; 13 Price, 129 - 251 
 
 Daniel v. M'Carthy, 7 Ir. C. L. E. 261 - - 356 
 
 Daniels v. Gompertz, 3 Q. B. 322 ; 2 Ga. & Day. 751 - 64 
 Darling v. Hill, Lee Cas. temp. Hard. 255 - - 140 
 
 Davies d. Povey v. Eoe, 2 Wm. Bl. 892 - - 106 
 
 Davies v. Edmonds, 12 M. & W. 31 ; 1 Dowl. & L. 395 ; 13 
 
 L. J. Ex. 1- 158, 159, 473 
 
 Davies v. Griffiths, 4 M. & W. 377 ; 7 Dowl. 204 ; 8 L. J. 
 
 N. S. Exch. 70 - - 159 
 
 Davies v. Jenkins, 6 Ch. D. 728 ; 26 W. E. 260 - - 378 
 
 Davis v. Andrews, W. N. (1884) 94 - 24, 52 
 
 Davis v. Duke of Marlborough, 1 Swanst. 74 - 365, 366 
 
 Davis v. Duke of Marlborough, 2 Swanst. 108 - - - 298 
 
 Davis v. Morris, 10 Q. B. D. 436 ; 52 L. J. Q. B. 401 ; 31 
 
 W. E. 749 - - 29 
 
 Davis v. Shapley, 1 B. & Ad. 54 ; 8 L. J. K B. 357 - - 37 
 Dawson v. Malley, Ir. E. 1 C. L. 207 - - - 359 
 
 Dawson v. Symmons, 12 Q. B. 830 ; 18 L. J. Q. B. 34 201, 206
 
 TABLE OF CASES. XXI 
 
 PAGE 
 
 Deacon v. Morris, 2 B, & Aid. 393 - - 156 
 
 Dean v. Whittaker, 1 C. & P. 347 ; 3 L. J. K. B. 67 - - 134 
 Deere, Be, L. B. 10 Ch. 658; 44 L. J. Bank. 120; 33 L. T. 
 
 115; 23 W. E. 866 - - 216 
 
 Defries v. Creed, 34 L. J. Ch. 607 126, 319 
 
 Delany v. Mansfield, 1 Hog. 234 - - - - 325 
 
 De Manneville v. De Manneville, 12 Ves. 203 - - 258 
 
 De Medina v. Grove, 10 Q. B. 152 ; 15 L. J. Q. B. 284, 287 - 87 
 De Moranda v. Dunkin, 4 T. E. 119 - 74 
 
 Dennis v. Whetham, L. B. 9 Q. B. 345 ; 43 L. J. Q. B. 129 ; 
 30 L. T. 514; 22 W. E. 571 - - - - 79, 117 
 
 Dent v. Dent, L. E. 1 P. & M. 366 ; 36 L. J. Matr. 61 ; 15 
 L. T. 635 ; 15 W. E. 591 - - - - - 367 
 
 Derbyshire & Staffordshire Bail. Co. v. Bainbrigge, 15 Beav. 
 146 - - - - - -305,328 
 
 Devereux v. Underbill, 2 Keb. 245 - 105 
 
 Dew v. Parsons, 2 B. & Aid. 562 - - - 471 
 
 Dicas v. Warne, 10 Bing. 341 ; 2 Dowl. 762 ; 3 M. & Sc. 814; 
 3 L. J. N. S. C. P. 60 - - - - - 48 
 
 Dickinson v. Kitchen, 8 El. & Bl. 789 - . - - 128 
 
 Digby v. Irvine, 6 Ir. Eq. Eep. 149 - 179 
 
 Dillon v. Cunningham, L. E. 8 Ex. 23 ; 42 L. J. Exch. 11 ; 
 27 L. T. 830 - - - - - 267 
 
 Dixon v. Smith, 1 Swans. 457 - - 268, 280, 288 
 
 Dixon v. Wrench, L. E. 4 Ex. 154 ; 38 L. J. Exch. 113 ; 20 
 L. T. 492 ; 17 W. E. 591 - - - - - 340 
 
 Dod v. Coleman, 9 Dowl. 916 ; and see E. v . Herts - - 144 
 Dodington v, Hudson, 8 Moore, 510 - 5 
 
 Doe v. Trye, 5 Bing. N. C. 573 ; 7 Dowl. 636 ; 7 Sc. 704 ; 
 
 8 L. J. N. S. C. P. 346 - - - 74 
 
 Doe d. Batten v. Murless, 6 M. & S. 110 - 91, 407 
 
 Doe d. Butcher v. Musgrave, 1 Man. & Gr. 625; 1 Sc. N. E. 
 451 ; 9 L. J. N. S. C. P. 318 - - - - - 131 
 
 Doe d. Davenport v. Ehodes, 11 M. & W. 600; 1 Dowl. & 
 
 L. 293 ; 12 L. J. N. S. Exch. 382 - 101 
 
 Doe d. Emmett v. Thorn, 1 M. & S. 425 - 125, 129, 187 
 
 Doe d. Forster v. Wandlass, 7 T. B. 117 - 39, 102, 405 
 
 Doe d. Hudson v. Eoe, 18 Q. B. 806; 21 L. J. Q. B. 359 - 105 
 Doe d. Hughes v. Jones, 9 M. & W. 372 ; 1 Dowl. N. S. 352 ; 
 
 11 L. J. N. S. Exch. 50 - 129, 130 
 
 Doe d. Hull v. GreenhUl, 4 B. & Aid. 648 - 181, 182, 322 
 Doe d. James v. Brawn, 5 B. & Aid. 243 - - 129 
 
 Doe d. Mitchinson v. Carter, 8 T. E. 57 - - 130 
 
 Doe d. Morgan v. Bluck, 3 Camp. 447 - 203, 204 
 
 Doe d. Pate v. Eoe, 1 Taunt. 55 - - - - 105
 
 XX11 TABLE OF CASES. 
 
 PAGE 
 
 Doe d. Phillips v. Evans, 1 Or. & M. 450 ; 3 Tyr. 339 ; 2 
 L. J. N. S. Excli. 179 - 176, 181, 182, 186 
 
 Doe d. Eoberts v. Parry, 2 Dowl. & L. 430 ; 13 M. & W. 
 356 ; 14 L. J. Ex. 20 ; 8 Jur. 963 - - 178 
 
 Doe d. Stephens v. Lord, 7 A. & E. 610 ; 1 Per. & Day. 389; 
 
 8 L. J. N. S. Q. B. 97 - - 99, 106 
 Doe d. Stevens v. Donston, 1 B. & Aid. 230 - 125 
 Doe d. Westmoreland v. Smith, 1 Man. & Ey. 137 ; 6 L. J. 
 
 K B. 44 - - - 130 
 
 Doe d. Whittington v. Hards, 20 L. J. Q. B. 406 - - 106 
 
 Doe d. Wigan v. Jones, 10 B. & C. 459 ; 8 L. J. Z. B. 214 - 180 
 Doe d. Williams v. Williams, 4 N. & M. 259 ; 2 Ad. & El. 
 
 381 ; 4 L. J. N. S. K B. 39 - - - 106, 405 
 
 Doyley v. White, Cro. Jac. 323 - 61, 376 
 
 Drake, Ex parte, Ee Ware, 5 Ch. D. 866 ; 36 L. T. 677 ; 
 
 25 W. E. 641 - - - - 197 
 
 Drake v. Sikes, 7 T. E. 113 - - 72, 73 
 
 Drewe v. Lainson, 11 Ad. & El. 529 ; 3 Per. & Dav. 245 ; 
 
 9 L. J. N. S. Q. B. 69 - - 117, 118, 123 
 Duck v. Braddyl, M'Clel. 217 ; 13 Price, 455 - 134 
 Dudley, Ee, 12 Q. B. D. 44 ; 53 L. J. Q. B. 16 ; 49 L. T. 
 
 737 ; 32 W. E. 264 - - - - - 246 
 
 Duffield v. Elwes, 2 Beav. 268 - - - 238 
 
 Duffill v. Spottiswoode, 3 C. & P. 435 - 134 
 
 Dugdale v. Levering, L. E. 10 C. P. 196 ; 44 L. J. C. P. 
 
 197 ; 32 L. T. 497 ; 23 W. E. 391 - 90, 104 
 
 Duncan v. Garratt, 1 C. & P. 169 - - 135 
 
 Dunkley v. Scribnor, 2 Mad. 443 - - 283, 285 
 
 Dunn, Ee, 5 C. B. 215 ; 5 Dowl. & L. 345 ; 17 L. J. C. P. 97 - 253, 
 
 254 
 
 Durrant v. Eicketts, 8 Q. B. D. 177 ; 51 L. J. d. B. 425 ; 
 30 W. E. 428 - - - - - - 383 
 
 E. 
 
 Bade v. Winser, 47 L. J. Q. B. 584 - - 361 
 
 Eames v. Hacon, W. N. (1881) 4 - - 43 
 
 Earl v. Brown, 1 Wils. 302 - - 49 
 
 East India Co. v. Kynaston, 3 Bli. 153 3, 85, 221 
 
 Eaton v. Southby, Willes, 131 55, 139 
 Edey, Ex parte, Ee Cuthbertson, L. E. 19 Eq. 264 ; 44 
 
 L. J. Bank. 55 ; 31 L. T. 851 ; 23 W. E. 519 - - 123 
 
 Edmond v, Eoss, 9 Price, 5 - - - - 48 
 
 Edmunds v. Watson, 2 Marsh. 330 ; 7 Taunt. 5 - 62, 64
 
 TABLE OF CASES. XX111 
 
 PAGE 
 
 Edridge v. Edridge, 3 Mad. 386 - - - - 344 
 
 Edwards, Ee, 33 W. E. 578 ; W. N. (1885) 74 - 223 
 
 Edwards, Ee, Brooke v. Edwards, 21 Ch. D. 230; 50 L. J. 
 
 Ch. 943 ; 30 W. E, 656 - - 226, 254 
 
 Edwards v. Edwards, 2 Ch. D. 291 ; 45 L. J. Ch. 391 ; 34 
 
 L. T. 472 ; 24 W. E. 713 - - 316 
 
 Edwards v. Eobertson, 5 M. & W. 520 ; 7 Dowl. 857 ; 9 L. J. 
 
 N. S. Exch. 3 - - - 71 
 
 Egginton's Case, 2 El. & Bl. 717 ; 23 L. J. M. C. 41 - - 248 
 Eisdell v. Coningham, 28 L. J. Exch. 213 - - 373 
 
 Ellerton v. Thirsk, 1 Jac. & W. 376 - - - 259 
 
 Elwell v. Jackson, 1 C. & E. 362 - - 357 
 
 Emanuel v. Bridget, L. E. 9 Q. B. 286 ; 43 L. J. Q. B. 96 ; 
 
 30 L. T. 195 ; 22 W. E. 404 - - - 373 
 
 Empringham v. Short, 3 Hare, 461 ; 13 L. J. N. S. Ch. 301 - 279, 
 
 280 
 
 Errington v. Howard, 1 Amb. 485 - - 207 
 
 European Central Eail. Co., Ee, 4 Ch. D. 33; 46 L. J. Ch. 
 
 57 ; 35 L. T. 583 ; 25 W. E. 92 - - - 32 
 
 Evans, Ex parte, Ee Watkins, 13 Ch. D. 252 ; 49 L. J. 
 
 Bank. 7 ; 41 L. T. 579 ; 28 W. E. 127 - 303, 305, 316, 317 
 Evans, Ee, Evans v. Evans, 34 Ch. D. 597 ; 56 L. T. 768 ; 
 
 35 W. E. 586 - - - - - - 120 
 
 Evans v. Bear, L. E. 10 Ch. 76 ; 31 L. T. 625 ; 23 W. E. 
 
 67 - 214, 217, 243 
 
 Evans v. Davies, 7 Beav. 81 ; 13 L. J. N. S. Ch. 11 - - 63 
 Evans v. Manero, 7 M. & W. 463 ; 9 Dowl. 256 ; 10 L. J. 
 
 N. S. Exch. 209 - - 158 
 
 Evans v. Millard, 3 Dowl. 661 ; 1 Gale, 138 ; 4 L. J. N. S. 
 
 Exch. 156 ------ 212 
 
 Evans v. Pugh, 2 Dowl. 360 - - - 37 
 
 Eynde v. Gould, 9 Q. B. D. 335 ; 51 L. J. Q. B. 425 - 239 
 
 Eyre v. McDowell, 9 H. L. Cas. 619 - - - 306 
 
 Eyres v. Taunton, Cro. Car. 295 - - 61 
 
 P. 
 
 Farrer v. Brooks, 1 Mod. 188 55, 115 
 
 Fawcet v. FothergiU, 1 Dick. 19 - - 281 
 Feistel v. King's College, Cambridge, 10 Beav. 491 ; 16 
 
 L. J. Ch. 339 - - 366 
 
 Fellows v. Thornton, 14 Q. B. D. 335 ; 54 L. J. Q. B. 279 ; 
 
 52 L. T. 389 ; 33 W. E. 258 - - 26, 232 
 
 Fenny v. Durrant, 1 B. & Aid. 40 - - - 178, 415
 
 XXIV TABLE OF CASES. 
 
 PAGE 
 
 Fenton v. Lowther, 1 Cox, 315 - - 364 
 
 Ferguson v. Ferguson, L. E. 10 Ch. 661 ; 44 L. J. Ch. 615 - 215 
 Fernandez, Ex parte, 10 C. B. N. S. 3 ; 31 L. J. C. P. 321 - 253, 
 
 263 
 
 Field v. Sawyer, 6 C, B. 71 - - 236 
 
 Finney v. Hinde, 4 Q. B. D. 102 ; 48 L. J. Q. B. 275 ; 40 
 
 L. T. 193 ; 27 W. E. 413 - - - 339 
 
 Fisher v. Budding, 3 Man. & Gr. 238 ; 3 Sc. N. E. 516 ; 10 
 
 L. J. N. S. C. P. 325 - - 187 
 
 Fisher v. Magnay, 6 Sc. N. E. 588 ; 5 Man. & Gr. 777 ; 1 
 
 Dowl. & L. 40 ; 12 L. J. N. S. C. P. 276 - - 36, 251 
 
 Fitzpatrick v. Kelly, cited 3 T. E. 740 - - 76 
 
 Flarty v. Odium, 3 T. E. 681 - - - 365 
 
 Fleetwood's Case, 8 Eep. 171 a - 113, 186 
 
 Fletcher, Ex parte, 2 M. D. & De G. 129 - - 215 
 
 Flower v. Buller, 15 Ch. D. 665 ; 49 L. J. Ch. 784 ; 43 
 
 L. T. 311 ; 28 W. E. 948 - - - - 378 
 
 Floyd v. Bethill, 1 Eoll. Eep. 420 - - 103 
 
 Foley v. Hill, 2 H. L. Gas. 28 - 357 
 
 Footner v. Sturgis, 5 De G. & Sm. 736 ; 21 L. J. Ch. 741 - 306 
 Ford v. Leche, 6 A. & E. 699 ; 1 N. & P. 737 ; 6 L. J. N. S. 
 
 K. B. 150 - - - 74 
 
 Fordv. Nassau, 1 Dowl. N. S. 631 ; 9 M. & W. 793 ; 11 
 
 L. J. N. S. Exch. 287 - - 251 
 
 Ford v. Wastell, 2 Phil. 591 - - 306 
 
 Forster v. Cookson, 1 Q. B. 419 ; 1 Ga. & Day. 58 ; 10 L. J. 
 
 N. S. Q. B. 167 - - 141 
 
 Forth v. Duke of Norfolk, 4 Mad. 503 - - 182, 183 
 
 Foss, Ex parte, Ee Baldwin, 2 De G. & J. 230 ; 27 L. J. 
 
 Bank. 17 - - 122 
 
 Foster v. Blakelock, 5 B. & C. 328 ; 8 D. & Ey. 48 ; 4 L. J. 
 
 K B. 170 - 159 
 
 Foster v. Jackson, Hob. 52 - 47, 170 
 
 Fowler v. Churchill, 11 M. & W. 57 - 343 
 
 Fowler v. Eoberts, 2 Giff. 226 - - - 361 
 
 France v. Clarkson, 2 Dowl. 532 - - 64 
 
 Francis v. Bailey, W. N. (1869) 142 - - - 260 
 
 Francis v. Nash, Lee Gas. temp. Hard. 53 - - 113, 131 
 
 Francklyn v. Colhoun, 3 Swans. 276 - - - 287 
 
 Frankland, Be, L. E. 8 Q. B. 18; 42 L. J. Q. B. 13; 28 
 
 L. T. 18 - - - - - 351, 358 
 
 Franklin v. Hodgkinson, 3 Dowl. & L. 554 ; 15 L. J. Q,. B. 
 
 132 - - - 60 
 
 Freston, Ex parte, 30 L. J. Ch. 460 ; 3 L. T. N. S. 332 ; 7 
 
 Jur. N. S. 432 ; 9 W. E. 321 - - - - 248
 
 TABLE OF CASES. XXV 
 
 PAGE 
 
 Freston, Ee, 11 Q. B. D. 545 ; 52 L. J. Q. B. 545 ; 49 L. T. 
 
 290 - - 214, 246, 248 
 
 Fryer, Ex parte, Ee Fryer, 17 Q. B. D. 718; 55 L. J. Q.B. 
 
 478 ; 55 L. T. 276 ; 34 W. E. 766 - 267 
 
 Fuggle v. Bland, 11 Q. B. D. 711 - - 324 
 
 FuUer v. Earl, 7 Ex. 796; 21 L. J. Exch. 314 - 340 
 
 Fulwood's Case, 4 Eep. 67 a 62, 173, 184 
 
 Furtado v. Miller, Barnes, 213- - --57 
 
 G. 
 
 Galland, Ee, W. N. (1886) 96 - 323 
 
 Garland v. Garland, 2 Yes. Jr. 137 - - 315 
 
 Garraway v. Harrington, Cro. Jac. 569 - 171, 173, 184 
 
 Garstin v. De Garston, 24 L. J. Mat. Gas. 45 - 225 
 
 Garston v. Williams, Longf. & Towns. 168 - - - 206 
 
 Gaskellv. Sefton, 14 M. & W. 802; 3 Dowl. &L. 267; 15 
 
 L. J. Exch. 107 - - - - - 475 
 
 Gathercole v. Smith, 17 Ch. D. 1 ; 50 L. J. Ch. 671 ; 44 
 
 L. T. 439 ; 29 W. E. 434 - - 368 
 
 Gawler v. Chaplin, 2 Exch. 503; 18 L. J. Ex. 42- 82, 119, 140, 142 
 General Horticultural Co., Ex parte Whitehouse, 32 Ch. D. 
 
 513. See Whitehouse, Ex parte. 
 Genese v. Lascelles, 13 Q. B. D. 901 ; 53 L. J. Q. B. 578 ; 
 
 32 W. E. 794 - - - 267 
 
 Gibbins v. Buckland, 1 H. & C. 736 ; 32 L. J. Exch. 156 ; 
 
 9 Jur. N. S. 207 ; 11 W. E. 380 - - 100 
 
 Gibbs v. Pike, 8 M. & W. 223 ; 9 Dowl. 131 ; 10 L. J. N. S. 
 
 Exch. 309 - 217, 225 
 
 Gilbert v. Endean, 9 Ch. D. 259 ; 39 L. T. 404; 27 W. E. 252 - 235 
 Gilchrist, Ex parte, Ee Armstrong, 17 Q. B. D. 167, 521 ; 
 
 55 L. J. Q. B. 578 ; 55 L. T. 538 ; 34 W. E. 709- - 385 
 
 Giles v. Grover, 1 01. & F. 72 - - 108, 118, 121 
 
 Gill v. Continental Gas Co., L. E. 7 Ex. 332 ; 41 L. J. Exch. 
 
 176 ; 27 L. T. 424 337, 339, 340 
 
 Gill v. Jose, 6 El. & Bl. 718 ; 2 Jur. N. S. 860 - - 472 
 
 Gilmour v. Simpson, 8 Ir. C. L. E. App. xxxviii. - - 358 
 Gladstone v. Padwick, L. E. 6 Ex. 203 ; 40 L. J. Exch. 154 
 
 119, 120, 121, 122 
 Gledhill v. Hunter, 14 Ch. D. 492 ; 49 L. J. Ch. 333 ; 42 
 
 L. T. 392 ; 28 W. E. 530 - - - - - 98 
 
 Gloucestershire Banking Co. v. Edwards, 20 Q. B. D. 107 ; 
 
 57 L. J. Q. B. 51 ; 36 W. E. 116 - - 70, 72 
 
 Goddard v. Thompson, 47 L. J. Q. B. 382 ; 38 L. T. 166 ; 
 
 26 W. E. 362 42
 
 XXVI TABLE OF CASES. 
 
 PAGE 
 
 Godfrey v. Watson, 3 Atk. 517 - - 185, 194 
 
 Goldsmith v. Goldsmith, 5 Ha. 123 ; 15 L. J. Oh. 264 - 271, 
 
 278, 282, 317 
 
 Gooch v. Haworth, 3 Beav. 428 - - 318 
 
 Goode v. Langley, 7 B. & 0. 26 ; 5 L. J. K B. 353 - 160 
 
 Goodman v. Eobinson, 18 Q. B. D. 332 ; 56 L. J. Q. B. 392; 
 
 55 L. T. 811 ; 35 W. E. 274 - - - 351 
 
 Goodtitle v. Badtitle, 9 Dowl. 1009 ; 5 Jur. 990 - 44 
 
 Goodyere v. Ince, Cro. Jac. 246 - - 187 
 
 Gordon v. Jennings, 9 Q. B. D. 45 ; 51 L. J. Q. B. 417 ; 46 
 
 L. T. 534 ; 30 W. E. 704 - - 364 
 
 Gore v. Bowser, 3 Sm. & G. 1 ; 24 L. J. Ch. 316, 440 - 182, 187, 296 
 Gore v. Goston, 1 Stra. 643 - 142, 158 
 
 Goucher v. Clayton, 14 L. T. 494 - - 252 
 
 Gough v. Cribb, 11 M. & W. 497 - - 88 
 
 Gould v. Twine, 43 L. J. Ch. 381 ; 30 L. T. 243 ; 22 W. E. 398 - 226 
 Grace v. Baynton, 25 W. E. 506 - - 215 
 
 Graham v. Connell, 1 L. M. & P. 438 ; 19 L. J. Ex. 361 - 335, 337 
 Graham v. Grill, 2 M. & S. 294 - - 156 
 
 Grant v. Bagge, 3 East, 128 - - 68, 76 
 
 Greaves v. Keene, 4 Ex. D. 73 ; 40 L. T. 216 ; 27 W. E. 416 - 254 
 Green v. Elgie, 3 B. & Ad. 437; 1 Dowl. 344; 1 L. J. N. S. 
 
 K B. 150 123 
 
 Green v. Elgie, 5 Q. B. 99 ; 1 Dav. & Mer. 199 ; 14 L. J. 
 
 Q,. B. 162 - 263, 265, 433 
 
 Green v. Green, 2 Sim. 394- - 211 
 
 Green v. Thompson, 1 S. & S. 121 - 226, 254 
 
 Greensill, Ee, L. E, 8 C. P. 24 ; 42 L. J. C. P. 55 ; 27 L. T. 
 
 827 ; 21 W. E. 263 - 358 
 
 Gregg, Ee, Ee Prance, L. E. 9 Eq. 137 ; 39 L. J. Ch. 107 ; 
 
 23 L. T. 234 ; 18 W. E. 589 - - - 238 
 
 Gregory v. Cotterell, 5 El. & Bl. 571 ; 2 Jur. N. S. 16 - 74, 84 
 Grenfell v. Dean of Windsor, 2 Beav. 544 - - 366 
 
 Gresley v. Adderley, 1 Swans. 573 - - 326 
 
 Greswold v. Marsham, 2 Ch. Gas. 170 - 299 
 
 Grimshaw v. Emerson, 1 Dowl. 337 - - - - 61 
 
 Grubb, Ee, Ex parte Sims, 4 Ch. D. 521 ; 5 Ch. D. 375 ; 46 
 
 L. J. Bkcy. 103 ; 36 L. T. 40, 340 ; 25 W. E. 276, 453 - 473 
 Guest v. Cowbridge Eail. Co., L. E. 6 Eq. 619; 37 L. J. 
 
 Ch. 909; 17 W. E. 7 - - 173, 192, 307 
 
 Gyffordv. Woodgate, 11 East, 297 - - - - 62
 
 TABLE OF CASES. XXV11 
 
 H. 
 
 PAGE 
 
 Hale v. Thomas, 1 Vern. 349 - . - - 185 
 
 Hall, Ex parte, Ee Townsend, 14 Oh. D. 132 ; 42 L. T. 162; 
 
 28 W. E. 556 - - 124, 135 
 
 HaU v. Crawley, 7 L. T. N. S. 721 ; 11 W. E. 344 - - 140 
 HaU v. Hale, 51 L. T. 226 ; W. N. (1884) 185 - 223 
 
 HaU v. HaU, 47 L. J. Ch. 680 - - 98, 221 
 
 HaU v. Hawkins, 4 M. & W. 590 ; 7 Dowl. 200 ; 8 L. J. 
 
 N. S. Exch. 87 - - - 248 
 
 Hall v. Ley. (See Ee Heiron's Estate.) 
 Hall v. Pritchett, 3 Q. B. D. 215 ; 47 L. J. Q. B. 15 ; 37 L. T. 
 
 671 ; 26 W. E. 95 - - - - - 364 
 
 Hall v. Eoche, 8 T. E. 187 - 73, 84 
 
 HalliweU v. Heywood, 10 W. E. 780 - - - 473 
 
 Haly v. Barry, 3 Ch. 452 ; 37 L. J. Ch. 723 ; 18 L. T. 490 ; 
 
 16 W. E. 654 - - - - - - - 338 
 
 Hambly v. Trott, 1 Cowp. 375 - 70 
 
 Hamer v. Giles, 11 Ch. D. 942 ; 48 L. J. Ch. 508 ; 27 W. E. 
 
 834 - - 369, 372 
 
 Hamill v. Lilley, 19 Q. B. D. 83; 56 L. J. Q. B. 337 ; 56 
 
 L. T. 620 ; 35 W. E. 437 - - - 42 
 
 Hamilton, Ee, 31 Ch. D. 291; 55 L. J. Ch. 282 ; 53 L. T. 
 
 840 ; 34 W. E. 203 - 310 
 
 Hamlyn v. Lee, 1 Dick. 94 ; 3 Swans. 301 280, 281, 283, 293 
 Hammond v. Nairn, 9 M. & W. 221 ; 1 Dowl. N. S. 351 ; 
 
 11L.J. N. S. Exch. 14 - - 37 
 
 Hampden v. WaUis, 26 Ch. D. 746 ; 54 L. J. Ch. 83 ; 50 L. T. 
 
 515 ; 32 W. E. 808 - 236, 240 
 
 Hampton v. Holman, 5 Ch. D. 183 ; 46 L. J. 248 ; 36 L. T. 
 
 287 ; 26 W. E. 459 - - - - - 13 
 
 Hancocks v. Lablache, 3 C. P. D. 197 ; 47 L. J. C. P. 514; 
 
 38 L. T. 753 ; 26 W. E. 402 - - 378 
 
 Harding v. HaU, 10 M. & W. 42 ; 11 L. J. N. S. Exch. 354 - 204, 
 
 205 
 
 Harding v. Holder, 9 Dowl. 659 ; 3 Sc. N. E. 293 - - 74 
 Harley v. Harley, 11 Ir. Ch. Eep. 451 - - 127, 129 
 
 Harmer v. Johnson, 14 M. & "W. 336 ; 3 Dowl. & L. 38 ; 14 
 
 L. J. N. S. Exch. 292 59 
 
 Harris v. Booker, 4 Bing. 96 ; 12 Moo. 528 ; 5 L. J. C. P. 92 174, 
 
 183 
 
 Harris v. Davison, 15 Sim. 128 ; 15 L. J. Ch. 255 - - 309 
 Harris v. JeweU, W. N. (1883) 216; 76 L. T. Journ. 112 - 110
 
 XXV111 TABLE OF CASES. 
 
 PAGE 
 
 Harris v. Pugh, 4 Bing. 335 ; 12 Moo. 577 ; 5 L. J. C. P. 
 
 189 - - 174, 299 
 
 Harrison v. Barry, 7 Price, 690 - - 139, 141 
 
 Harrison v. Bowden, 1 Sid. 29 - - 55 
 
 Harrison v. Paynter, 6 M. & W. 387 ; 8 Dowl. 349 ; 9 L. J. 
 
 N. S. Exch. 169 - 69, 70 
 
 Harrison v. Ward, 3 Dowl. 541 - - 236 
 
 Hart v. Vollans, 1 Dowl. 434 - 201, 207 
 
 Hart v. Weatherley, 4 Dowl. 171 - - 63 
 
 Hartley v. Shemwell, 1 B. & S. 1 ; 30 L. J. Q. B. 223 - 251 
 Harvey v. Hall, L. E. 11 Eq. 31 ; 23 L. T. 391 - - 243 
 
 Harvey v. Harvey, 2 Oh. Gas. 82 - - 277 
 
 Harvey v. Harvey, 26 Ch. D. 644 - 216, 245, 257 
 
 Harvey v. Morris, 23 W. E. 21, 40 - - 256 
 
 Hasker v. Wood, 54 L. J. Q. B. 419 ; 33 W. E. 697 - - 156 
 Hassenclever, Ee, 1 Bro. C. 0. 434 - - 270 
 
 Hastings (Lord) v. Beavan, 31 L. J. Ch. 546 ; 5 L. T. N. S. 
 
 734 ; 10 W. E. 206 - - 336, 337 
 
 Hatton v. Haywood, 9 Ch. 229 ; 43 L. J. Ch. 372 ; 30 L. T. 
 
 279 ; 22 W. E. 356 - 181, 303, 307, 316 
 
 Hawker, Ex parte, Ee Keely, 7 Ch. 214 ; 41 L. J. Bank. 34 ; 
 
 26 L. T. 54 ; 20 W. E. 322 - - - 369 
 
 Hawkins v. Gathercole, 6 De G. M. & G. 20 ; 24 L. J. Ch. 
 
 332 - 207, 208 
 
 Haydon v. Miller, 2 Eoll. Eep. 53 - - 376 
 
 Haymes v. Cooper, 33 Beav. 431 ; 33 L. J. Ch. 488 ; 10 
 
 L. T. N. S. 87 ; 12 W. E. 539 - - 372 
 
 Haythorn v. Bush, 2 Cr. & M. 689 ; 2 Dowl. 641 ; 3 L. J. 
 
 N. S. Exch. 210 - - 139 
 
 Hayter v, Beall, 44 L. T. 131 ; 29 W. E. 33; W. N. (1881) 
 
 12 - 66 
 
 Hayward v. Williams, 1 Eoll. Abr. 748, pi. 18 - - - 376 
 
 Heald v. Hay, 3 Gift. 467 ; 31 L. J. Ch. 311 - 367 
 
 Heapy v. Parris, 6 T. E. 368 - - - 52 
 
 Hearn v. Tennant, 14 Ves. 136 - - 258 
 
 Heiron's Estate, Hall v. Ley, 12 Ch. D. 795 ; 48 L. J. Ch. 
 
 688 ; 27 W. E. 750 - - - 63 
 
 Hele v. Bexley, 17 Beav. 14; 22 L. J. Ch. 1007 - 170, 175, 182 
 Helmore v. Smith (1), 35 Ch. D. 436 - 135 
 
 Helmore v. Smith (2), 35 Ch. D. 449 ; 56 L. J. Ch. 145 ; 
 
 56 L. T. 72 ; 35 W. E. 157 - - - 319 
 
 Hendy v. Collett, 7 Dowl. 599 - 236
 
 TABLE OF CASES. XXIX 
 
 PAGE 
 
 Hep-worth v. Sanderson, 8 Bing. 19 ; 1 Moo. & Sc. 64 ; 1 
 
 L. J. N. S. 0. P. 15 - 63 
 
 Hernaman v. Bowker, 11 Ex. 760 ; 25 L. J. Ex. 69 - 125 
 
 Hescott's Case, 1 Salk. 330 - - 157 
 
 Hewett v. Murray, W. N. (1885) 53 - 315 
 
 Hewitson v. Sherwin, L. E, 10 Eq. 53 ; 22 L. T. 576 ; 18 
 
 W. E. 802 - - - - - 255, 267 
 
 Hey wood v. Wait, 18 W. E. 205 - 243, 258, 259 
 
 Hide v. Pettit, 1 Ch. Cas. 91 - 225, 269 
 
 Hinde v. Blake, 5 Beav. 431 ; 12 L. J. N. S. Ch. 56 - - 236 
 Hobhouse's Case, 3 B. & Aid. 420 - - 253 
 
 Hobson, Ee, 33 Ch. D. 492 ; 55 L. J. Ch. 754 ; 34 W. E. 
 
 786 - - - 55, 173 
 
 Hobson v. Thelluson, L. E. 2 Q. B. 642 ; 36 L. J. Q. B. 
 
 302 ; 16 L. T. 837 ; 15 W. E. 1037 80, 82 
 
 Hodges v. Fincham, 1 Ch. D. 9; 33 L. T. 711; 24 W. E. 
 
 36- - - - - - --22 
 
 Hodgkinson v. Whalley, 2 Cr. & Jer. 86 ; 2 Tyr. 174 ; 1 
 
 Dowl. 298 ; 1 L. J. N. S. Ex. 68 - - - 47 
 
 Hodgson r. Gascoigne, 5 B. & Aid. 88 - 141 
 
 Hodgson v. Hodgson, 23 Beav. 604 - - 272 
 
 Hoe's Case, 5 Eep. 90 a - 125, 173 
 
 Holmes v. Newlands, 13 Q. B. 367 ; 5 L. J. Q. B. 82 ; 8 
 
 Jur. 614 - - - - - 59 
 
 Holt, Ee, 11 Ch. D. 168 ; 40 L. T. 207 ; 27 W. E. 485 - 237, 242, 
 
 244, 251 
 
 Holton v. Lloyd, 1 Mol. 30 - - - 185 
 
 Hooper v. Lane, 6 H. L. Cas. 443 ; 27 L. J. Q. B. 75-83, 85, 87, 
 
 91, 246 
 Hooson, Ex parte, 8 Ch. 231 ; 42 L. J. Bk. 19; 28 L. T. 4; 
 
 21 W. E. 152 - - - - - - 11 
 
 Hope v. Carnegie, L. E. 7 Eq. 254 ; 19 L. T. 374 - - 259 
 HopeweU v. Barnes, 1 Ch. D. 630 ; 33 L. T. 777 ; 24 W. E. 
 
 629 - 345 
 
 Horsley v. Cox, 4 Ch. 92 ; 38 L. J. Ch. 285 ; 20 L. T. 128 ; 
 
 17 W. E. 596- - - 342, 350, 357 
 
 Horton v. Euesby, Comb. 33 - 114 
 
 Hoskins v. Knight, 1 M. & S. 245 - - 141 
 
 Hough v. Edwards, 1 H. & N. 171 ; 26 L. J. Exch. 54 - 373 
 Housin v. Barrow, 6 T. E. 122 - - - 73 
 
 Howarth v. Howarth, 11 P. D. 95 ; 55 L. J. P. 49 ; 55 L. T. 
 
 303 ; 34 W. E. 633 - 241 
 
 Howell v. Dawson, 13 Q,. B. D. 67 126, 323 
 
 Howell v. Metropolitan District Bail. Co., 19 Ch. D. 508 ; 
 
 51 L. J. Ch. 158 ; 45 L. T. 707 ; 30 W. E. 100 - 358, 359, 372
 
 XXX TABLE OF CASES. 
 
 PAGE 
 
 Hubbard v. Beckford, 1 Hagg. Consist. Eep. 307 ; note to 
 
 2 Ph. Eccl. Eep. 5 - 202, 204 
 
 Huggins, Ex parte, Ee Huggins, 21 Ch. D. 85 ; 51 L. J. 
 
 Oh. 935 ; 47 L. T. 559 ; 30 W. E. 878 - - 369 
 
 Hughes v. Eees, 4 M. & W. 468 ; 7 Dowl. 56 ; 1 H. & H. 
 
 347 ; 8 L. J. N. S. Exch. 46 - - - 144 
 
 Hulkes v. Day, 10 Sim. 41 ; 10 L. J. N. S. Ch. 21 - - 337 
 Humphrys v. Pratt, 5 Bli. (N. S.) 154 ; 2 Dow & 01. 288 - 90 
 Hunt v. Fensham, 12 Q. B. D. 162 ; 32 W. E. 316 - - 126 
 Hunt v. Hooper, 12 M. & W. 664 ; 1 Dowl. & L. 626 ; 13 
 
 L. J. N. S. Exch. 183 - - 116, 117 
 
 Hunt v. Passmore, 2 Dowl. 414 - - 37 
 
 Hunt v. Priest, 2 Dick. 540 - 280 
 
 Hutchinson, Ee, 16 Q. B. D. 515 ; 55 L. J. Q. B. 582 ; 54 
 
 L. T. 302 ; 34 W. E. 475 - - 339 
 
 Hutchinson v. Hartmont, W. N. (1877) 29 - 220, 236 
 
 Hutchinson v. Johnston, 1 T. E 729 - 117 
 
 Hyde v. Eorster, 1 Dick. 132 - - - 290 
 
 Hyde v. Warden, 1 Ex. D. 309 - - - 290 
 
 I. 
 
 I. v. K, W. N. (1884) 63 - - 314 
 
 Ide, Ex parte, Ee Ide, 17 Q. B. D. 755 ; 55 L. J. Q. B. 484 29 
 Imray v. Magnay, 11 M. & W. 267 ; 2 Dowl. N. S. 531 ; 12 
 
 L. J. N. S. C. P. 189 ; 7 Jur. 240 - - 147, 148 
 Innes v. East India Co., 17 C. B. 351 ; 25 L. J. C. P. 154 - 368 
 Ivory v. Cruickshank, W. N. (1875) 249 - - - 197 
 
 J. 
 
 Jackson v.Hill, 10 A. & E. 477 ; 2 Per. & Dav. 455 ; 8 L. J. 
 
 Q. B. 253 - - 62 
 
 Jackson v. Litchfield, 8 Q. B. D. 474 ; 51 L. J. Q. B. 327 ; 
 
 46 L. T. 518 ; 30 "W. E. 531 - - - - - 28 
 
 Jackson v. Mawby, 1 Ch. D. 86 ; 45 L. J. Ch. 53 ; 24 W. E. 
 
 92 _______ 255 
 
 Jacobs v. Humphrey, 2 Or. & M. 412 ; 4 Tyr. 272 ; 3 L. J. 
 
 N. S. Exch. 82 - - 72, 73, 144
 
 TABLE OF CASES. XXXI 
 
 PAGE 
 
 Jacques v. Harrison, 12 Q. B. D. 136, 165 ; 53 L. J. Q. B. 
 
 137 ; 50 L. T. 246 ; 32 W. E. 274, 470 - - 107 
 
 James v. Downes, 18 Ves. 522 - - - 259 
 
 Jarmain v. Chatterton, 20 Ch. D. 493; 51 L. J. Ch. 471; 
 
 30 W. E. 461 - - 214, 215 
 
 Jarmain v. Hooper, 7 Sc. N. E. 663 ; 6. Man. & Grr. 827 ; 
 
 7 Dowl. & L. 769 ; 13 L. J. N. S. <J. P. 63 - - 84, 90 
 
 Jeaffreson v. Morton, 2 Saund. 6 ; 2 Wins. Saund. 12 - 49 
 Jeanes v. Wilkins, 1 Ves. sen. 195 - 129, 144 
 
 Jefferson v. Dawson, 3 Keb. 243 - - 172 
 
 Jenner-Fust v. Needham, 31 Ch. D. 500 ; 55 L. J. Oh. 407 ; 
 
 54 L. T. 420 ; 34 W. E. 409. On appeal, 32 Ch. D. 582 ; 
 
 55 L. J. Oh. 629 ; 55 L. T. 37 ; 34 W. E. 709 - - 326 
 Johnes v. Claughton, Jac. 573 - - 278 
 Johnson v. Burgess, L. E. 15 Eq. 398 ; 42 L. J. Ch. 400 ; 
 
 28 L. T. 188 ; 21 W. E. 453 - 285 
 
 Johnson v . Chippindall, 2 Sim. 55 - 287 
 
 Johnson v. Diamond, 11 Exch. 73; 24 L. J. Exch. 217; 25 
 
 L. T. 69 ; 3 W. E. 407 - - 356, 374 
 
 Johnson v. Streete, Comb. 290 - - - 131 
 
 Johnstone v. Sutton, 1 T. E. 493 - - 87 
 
 Jones v. Atherton, 7 Taunt. 56; 2 Marsh. 375 - 117, 118 
 
 Jones v. Bailey, 17 Beav. 582 - 302, 306 
 
 Jones v. Jaggar, W. N. (1886) 108 - - 24 
 
 Jones v. Parcell, 11 Q. B. D. 430; 52 L. J. Q. B. 672; 49 
 
 L. T. 197 - 154, 155 
 
 Jones v. Eobinson, 11 M. & W. 758; 2 Dowl. 1044; 12 L. J. 
 
 N. S. Exch. 415 - - 428 
 
 Jones v. Thompson, E. B. & E. 63 ; 27 L. J. Q. B. 234 ; 21 
 
 L. T. 80 ; 6 W. E. 443 - - 358, 363 
 
 Jones v. Williams, 8 M. & W. 349 ; 9 Dowl. 702 ; 10 L. J. 
 
 Exch. 253 - - - 92 
 
 Jordan v, Binckes, 13 Q. B. 757 ; 18 L. J. Q. B. 277 ; 7 
 
 Dowl. & L. 30 - - - - - - 57 
 
 Joselyne, Ex parte, Ee Watt, 8 Ch. D. 327 ; 47 L. J. Bkcy. 
 
 41 ; 38 L. T. 661 ; 26 W. E. 645 - - 373 
 
 Joy v. Hadley, 22 Ch. D. 571 ; 52 L. J. Ch. 471 ; 47 L. T. 
 
 615; 31 W. E. 519 - 237,241 
 
 Joyce v. Joyce, Sau. & Sc. 703 - - 226 
 
 Jupp v. Cooper, 5 C. P. D. 26 ; 28 W. E. 324 - - 239
 
 XXX11 TABLE OF CASES. 
 
 K. 
 
 PAGE 
 
 Kaye v. Cunningham, 5 Mad. 406 -277, 279 
 
 Keene v. Price, 1 S. & S. 98 - 280 
 
 Keightley v. Birch, 3 Camp. 521 - 80, 124, 144 
 
 Kemp v. Hyslop, 1 M. & W. 58 ; Tyr. & Gr. 77 ; 4 Dowl. 
 
 687 ; 5 L. J. N. S. Exch. 97 - 58 
 
 Kempland v. Macauley, Peake, 65 - 117 
 
 Kendall v. Hamilton, 4 App. Cas. 504 ; 48 L. J. C. P. 705 ; 
 
 41 L. T. 418 ; 28 W. E. 97 - 28 
 
 Kennett v. Westminster Improvement Commissioners, 11 
 
 Exch. 349 ; 25 L. J. Exch. 97 - - 351 
 
 Keogh v. Cathcart, 11 Ir. Eq. E. 280 - - - 288 
 
 Kevan v. Crawford, 6 Ch. D. 29 ; 46 L. J. Ch. 729 ; 37 L. T. 
 
 322 ; 26 W. E. 49 - 14 
 
 Kewney v. Attrill, 34 Ch. D. 345 ; 56 L. J. Ch. 448 ; 55 
 
 L. T. 805 ; 35 W. E. 191 - 360 
 
 Kimber v. Paravicini, 15 Q. B. D. 222 ; 54 L. J. Q. B. 471; 
 
 53 L. T. 299 ; 33 W. E. 907 - - 205, 206 
 
 Kimpton v. Eve, 2 V. & B. 349 - - 259 
 
 Kinderley v. Jervis, 22 Beav. 1 ; 25 L. J. Ch. 538 - - 179 
 King v. Ballett, 2 Vern. 248 - 180, 181 
 
 Kingsdale v. Mann, 6 Mod. 27 - - 104, 105 
 
 Kingston (Mayor of) v. Bubb, 1 Dowl. 151- - 71 
 
 Knight v. Bulkeley, 27 L. J. Ch. 592 ; 4 Jur. N. S. 527. 
 
 On appeal, 5 Jur. N. S. 817 - - - 289 
 
 Knight v. Clarke, 15 Q. B. D. 294 ; 54 L. J. Q. B. 509 - 100 
 Knight v. Coleby, 5 M. & W. 274 - - 60 
 
 Knight v. Gardiner, W. N. (1883) 162 - 239 
 
 Knott, Exparte, 11 Yes. 617 - - - - - 306 
 
 L. 
 
 Lamb, Ex parte, 13 L. T. 337 ; 14 W. E. 112 - 123 
 
 Lambert v. Hutchinson, 13 L. J. Ch. 336 - - 335 
 
 Lancashire Waggon Co. v. Fitzhugh, 6 H. & N. 502 ; 30 
 
 L. J. Ex. 231 ; 3 L. T. 703 - 125, 134 
 
 Land Credit Co. of Ireland v. Fermoy, 5 Ch. 323 ; 39 L. J. 
 
 Ch. 477; 22 L. T. 394; 18 W. E. 393 - 21, 235 
 
 Landowners' West of England, &c. Co. v. Ashford, 33 
 
 W. E. 41 - - - - - - 33 
 
 Lane v. Cotton, 12 Mod. 488 - - - 79 
 
 Lane v. Jackson, 20 Beav. 535 - 305
 
 TABLE OF CASES. XXX111 
 
 PAGE 
 
 Langton r. Horton, 1 Ha. 549 - - 128, 180 
 
 Lansdown v. Elderton, 14 Yes. 512 - - 264 
 
 Laurence, Ex parte, 2 Dowl. 230 - - 212 
 
 Lav f. London Indisputable Life &c. Co., 1 K. & J. 223; 
 
 24 L. J. Ch. 196 - - - - - - 133 
 
 Leader v. Danvers, 1 Bos. & P. 359 - 125, 145 
 
 Lechmere Charlton's Case, 2 My. & Cr. 316 ; 6 L. J. N. S. 
 
 Ch. 185 260 
 
 Ledbury v. Smith, 1 Chit. Eep. 294 - - - 90 
 
 Lee v. Lopes, 15 East, 230 - - 141 
 
 Legassicke v. B. of Exeter, B. E. E. 22 Geo. ILL ; 1 Cromp. 
 
 351 - - 203 
 
 Legg v. Evans, 6 M. & W. 36 ; 8 Dowl. 177 ; 9 L. J. N. S. 
 
 Exch. 102 - 113, 134 
 
 Leggott v. Western, 12 Q. B. D. 287 ; 53 L. J. Q. B. 316; 
 
 32 W. E. 460 - - 343 
 
 Leonard v. Simpson, 2 Bing. N. C. 176 ; 2 Sc. 335 ; 4 L. J. 
 
 N. S. C. P. 302 - - 63 
 
 Lessee of Linehan v. Anthony, Batty, Ir. Eep. 453 - - 105 
 Letsom v. Bickley, 5 M. & S. 144 - - 70 
 
 Levett v. Farrar, Cro. Eliz. 294 - - 71 
 
 Levi v. Buncombe, 1 C. M. & E. 737 ; 3 Dowl. 447 ; 5 Tyr. 
 
 490 - 243 
 
 Levy v, Champneys, 4 Ad. & El. 365 - - - 473 
 
 Lewes (Earl of) v. Barnet, 6 Ch. D. 252 ; 47 L. J. Ch. 144 ; 
 
 26 W. E. 101 - 216 
 
 Lewis v, Duncombe, 20 Beav. 398 - - 310 
 
 Lewis v. Holmes, 10 Q. B. 896 ; 16 L. J. Q. B. 430 57, 58 
 
 Lewis v. Morland, 2 B. & Aid. 56 - - 246 
 
 Lewis v. Morris, 2 Cr. & M. 712 ; 4 Tyr. 907 ; 4 L. J. N. S. 
 
 264 - 47 
 
 Lidderdale v. Montrose, 4 T. E. 248 - 365, 366 
 
 Lillingston's Case, 7 Eep. 39 a - 114, 188 
 
 Linton v. Linton, 15 Q. B. D. 239 ; 54 L. J. Q. B. 529 ; 52 
 
 L. T. 782; 33 W. E. 714 - - - 267 
 
 Litchfield v. Jones, 25 Ch. D. 64 ; 32 W. E. 288 - 239, 241 
 Liverpool Borough Bank v. Turner, 1 Johns. & H. 159 ; 29 
 
 L. J. Ch. 872 ; 6 Jur. N. S. 935 ; 8 W. E. 730 ; on appeal, 
 
 2 De G. F. & J. 502 ; 30 L. J. Ch. 379 ; 3 L. T. 494 ; 7 
 
 Jur. N. S. 150 ; 9 W. E. 292 - - 126 
 
 Lloyd, Ee, 10 Beav. 451 - - 238 
 
 Lloyd, Ee, Allen v. Lloyd, 12 Ch. D. 447 ; 41 L. T. 171 ; 
 
 28 W. E. 8 - 315 
 
 E. c
 
 XXXIV TABLE OF CASES. 
 
 PAGB 
 
 Lloyd v. Cheetham, 3 Gift'. 171 ; 30 L. J. Ch. 640 - - 368 
 Lloyd v. Davies, 2 Ex. 103 ; 18 L. J. Ex. 80 - 174, 178 
 
 Lockwood v. Nash, 18 0. B. 536 - - 370 
 
 London (Mayor of) v. Joint Stock Bank, 6 App. Gas. 393 ; 50 
 
 L. J. Q. B. 594 ; 45 L. T. 81 ; 29 W. R, 870 - - 370 
 
 London Wharfage &c. Co., Re, 54 L. J. Ch. 1137 ; 53 L. T. 
 
 112; 33 W. E.836 - - 33, 37 
 
 Long, Re, Ex parte Cuddeford, 20 Q. B. D. 316 ; 36 W. R. 
 
 346 - - 407 
 
 Long v. Bray, 10 W. R. 841 - - 162, 473 
 
 Longdill v. Jones, 1 Stark. 345 - - 162 
 
 Lorimer v. Lule, 1 Chit. Rep. 134 - - 38 
 
 Lovegrove v. White, L. R. 6 0. P. 440 ; 40 L. J. C. P. 253 ; 
 
 24 L. T. 554 ; 19 W. R. 823 - 22 
 
 Lovick v. Crowder, 8 B. & Or. 132 ; 2 Man. & Ry. 84 ; 6 
 
 L. J. K B. 63 - 69, 147, 148 
 
 Lowe v. Blakemore, L. R. 10 Q. B. 485 ; 44 L. J. Q. B. 155 ; 
 
 33 L. T. 473 ; 23 W. R. 856 - - 373 
 
 Lowten v. Mayor of Colchester, 2 Mer. 395 - 242, 244, 276 
 Lowthal v. Tonkins, 2 Eq. Ca. Abr. 381 - - 171 
 
 Lucas v. Harris, 18 Q. B. D. 127 ; 56 L. J. Q. B. 15 ; 55 L. 
 
 T. 658 ; 25 W. R. 112 - 364, 368 
 
 Lucas v. Peacock, 9 Beav. 177 - 345 
 
 Lucy v. Wood, W. N. (1884) 58 - - 453 
 
 Ludmore, Re, 13 Q. B. D. 415, sub nom. Re Ludford, 53 
 
 L. J. Q. B. 418 ; 51 L. T. 240 ; 33 W. R. 152 - 157, 160 
 
 Lupton v. Hescott, 1 S. & S. 274 - - 270 
 
 Lysaght, Re, W. N. (1887) 23 - - - 241 
 
 Lyster v. Bromley, Cro. Car. 286 - - 156 
 
 Lyster v. Dolland, 3 Bro. C. C. 478; 1 Ves. jun. 431 181, 299 
 
 M. 
 
 M , Re, 46 L. J. Ch. 24 - - 255 
 
 M'Carthy v. Goold, 1 Ba. & Be. 387 - 286, 288, 289, 367 
 M'Connack v. Melton, 1 A. & E. 331 ; 3 N. & M. 881 - 37 
 M'lleham v. Smith, 8 T. R. 86 - 245 
 
 McWilliams, Re, 1 Sch. & Lef. 169 - - - 216 
 
 Macdonald v. HoUister, 3 W. R. 522 ; 25 L. T. 185 - 361 
 
 Macdonald v. Tacquah Gold Mines Co., 13 Q. B. D. 535 ; 53 
 
 L. J. Q. B. 376 ; 51 L. T. 210; 32 W. R. 760 355, 358, 360 
 Maclntyre v. ConneU, 1 Sim. N. S. 252 - - 343 
 
 Maclntyre v, Connell, 1 Sim. N. S. 225 ; 20 L. J. Ch. 284 ; 
 
 15 Jur. 529 - - - - - - - 335
 
 TABLE OF CASES. XXXV 
 
 PAGE 
 
 Mackensie v. Mackensie, 5 De G. & S. 338 ; 21 L. J. Ch. 
 
 385 - 251 
 
 Macleod v. Buchanan, 33 Beav. 234; 33 L. J. Ch. 170; 9 
 
 L. T. 62 ; 9 Jur. N. S. 1267 - - - 346 
 
 Madden v. "Woods, 7 IT. Eq. Eep. 637 - 226 
 
 Maguire v. O'Eeilly, 3 J. & Lat. 224 - - - 225 
 
 Mahon v. Miles, 45 L. T. 540; 30 W. E. 123 - 160, 194 
 
 Mann v. Perry, 50 L. J. Ch. 251 ; 44 L. T. N. S. 248 - 241 
 Manton v. Manton, 40 L. J. Ch. 93 - - - 287 
 
 Marsh v. Fawcett, 2 H. Bl. 582 - - 59, 201, 207 
 
 Martin's Case, 2 Euss. & My. 674 - - 260 
 
 Martin v. Smith, 27 L. J. Ex. 317 - - 174 
 
 Martyn v. Kelly, IT. E. 5 C. L. 404 - - - 350 
 
 Mason v. Muggeridge, 18 C. B. 642 - 65 
 
 Mason v. Payuter, 1 Q, B. 974 ; 1 Ga. & Day. 381 ; 10 L. J. 
 
 N. S. Q. B. 299 - - 104 
 
 Masters v. Lowther, 11 C. B. 948 ; 21 L. J. C. P. 130; 16 
 
 Jur. 374 - - 239, 472, 473, 474 
 
 Mayer v. Murray, 8 Ch. D. 424 ; 47 L. J. Ch. 605 ; 26 W. E. 
 
 690 - - - 186 
 
 Mayor of Kingston v. Bubb. See Kingston (Mayor of) v. 
 
 Bubb. 
 Mayor of Norwich v. Gill. See Norwich (Mayor of) v. 
 
 Gill. 
 Meager v. Pellew, 14 Q. B. D. 973 ; 53 L. T. 67 ; 33 W. E. 
 
 573 - - - - - - - - 387 
 
 Mercer v. Lawrence, 26 "W. E. 506 - - 25, 53 
 
 Merry v. Nickalls, 8 Ch. 205 ; 42 L. J. Ch. 479 ; 28 L. T. 
 
 296 ; 21 W. E, 305 - 43 
 
 Mersey Docks Trustees v. Gibbs, 11 H. L. Cas. 686 ; L. E. 1 
 
 H. L. 93 ; 35 L. J. Exch. 225 ; 12 Jur. N. S. 571 ; 14 L. T. 
 
 677 ; 14 W. E. 872 - 176 
 
 Messer v. Boyle, 21 Beav. 559 - - - 306 
 
 Michill v. Hores, 1 Leo. 321 - 357 
 
 Middleton v. Chichester, 6 Ch. 152 ; 40 L. J. Ch. 237 ; 24 
 
 L. T. 173 ; 19 W. E. 369 - - - 219 
 
 Mildred v. Austin, L. E, 8 Eq. 220 ; 20 L. T. 939 ; 17 W. E. 
 
 638 - 307, 310 
 
 Miles v. Harris, 12 C. B. N. S. 550 ; 31 L. J. C. P. 361 - 157, 159 
 Miles v. Presland, 4 My. & Cr. 431 - 337 
 
 Miller v. Huddlestone, 22 Ch. D. 233 ; 52 L. J. Ch. 208 ; 47 
 
 L. T. 570 ; 31 W. E. 138 - - 288 
 
 Miller v. Miller, L. E, 2 P. & M. 54 ; 39 L. J. P. & M. 38 ; 
 
 18 W. E. 585 - 272, 288 
 
 c2
 
 XXXVI TABLE OF CASES. 
 
 Miller v. Mynn, 1 El. & El. 1075 ; 28 L. J. Q. B. 324 - 358 
 Miller v. Parnell, 6 Taunt. 370 ; 2 Marsh. 78 - 60 
 
 Mitchell v. Draper, 9 Ves. 208 - - - 286 
 
 Mitchell v. Lee, L. E. 2 Q. B. 259 ; 36 L. J. Q. B. 54 ; 15 
 
 L. T. 502 ; 15 W. E. 337 - - 360, 372 
 
 Moleyn's (Sir John de) Case, T. B. 30 Ed. III. 24a - - 188 
 Molineux v. Fulgam, Palm. 289 - - 103 
 
 Monk v. Lawlor, 1 Jones, 554 - - 272 
 
 Montefiore v. Behrens, L. E. 1 Eq. 171 ; 35 Beav. 95 - 340, 343 
 Moor v. Watts, 2 Salk. 580 ; 1 Ld. Eaym. 613 - - - 61 
 
 Moreland v. Leigh, 1 Stark. 388 - - 79 
 
 Morgan v. Elford, 4 Ch. D. 352 ; 25 W. E. 136 - - 43 
 
 Morland v. Pellatt, 8 B. & C. 722 - - 136 
 
 Morley v. Clavering, 30 Beav. 108 - - 235 
 
 Morrice v. Aylmer, L. E. 7 H. L. 717; 45 L. J. Ch. 614; 
 
 34 L. T. 418 ; 24 W. E. 587 - - - 331 
 
 Morris v. Hayward, 6 Taunt. 569 - - 246 
 
 Morris v. Jones, 2 B. & C. 243 ; 3 D. & E, 603 - 172,415 
 
 Morris v. Manesty, 7 Q. B. 674 ; 14 L. J. Q. B. 285 - 332, 339 
 Morris v. Morris, 1 Hog. 238 - 260 
 
 Morris v. Ogden, L. E. 4 C. P. 687 ; 38 L. J. C. P. 3S9 ; 20 
 
 L. T. 978; 17 W. E. 1103 - 206 
 
 Morris v. Phelps, 4 Exch. 895 ; 19 L. J. Exch. 165 - - 206 
 Morrison v. Manley, 1 Dowl. N. S. 773 - - 57 
 
 Mortimer v. Wilson, 33 W. E. 937 - - 224 
 
 Mortimore v. Cragg, 3 C. P. D. 216 ; 47 L. J. C. P. 348 ; 38 
 
 L. T. 46; 26 W. E. 363 - - 120, 156, 157, 193 
 
 Moseley v. Warburton, 1 Ld. Eaym. 265 ; 1 Salk. 320 - 200 
 Mulckern v. Doerks, 53 L. J. Q. B. 526 ; 51 L. T. 429 - - 252 
 Mullens v. Williamson, 2 Moll. 380 - 259 
 
 Mullet v. Challis, 20 L. J. Q. B. 160 ; 16 Q. B. 239 ; 15 Jur. 
 
 243 - - - 124 
 
 Munk v. Cass, 9 Dowl. 332 - - 86 
 
 Munster v. Cox, 10 App. Cas. 680 ; 55 L. J. Q. B. 108 ; 53 
 
 L. T. 474 - - 28 
 
 Murray v. Simpson, 8 Ir. C. L. E. App. xlv. - - - 357 
 
 Mutton v. Young, 4 C. B. 371 ; 16 L. J. C. P. 165 - - 133 
 
 N. 
 
 Nalty v. Aylett, 43 L. J. Ch. 721 ; 30 L. T. 783 ; 22 W. E. 
 
 857 ------ 226, 254 
 
 Nash v. Allen, 1 Dav. & Mer. 16; 12 L. J. N. S. Q. B. 
 
 298 - - - - - - - - 193
 
 TABLE OF CASES. XXXV11 
 
 PAGE 
 
 Nash v. Dickenson, L. R. 2 C. P. 252 - 120, 157 
 
 Nash v. Pease, 47 L. J. Q. B. 766 - 356, 360 
 
 Neal, Re, Weston v. Neal, 31 Ch. D. 437 ; 55 L. J. Ch. 376; 
 
 54 L. T. 68 ; 34 W. R. 319 - - 226 
 
 Neale v. Sealing, 3 Swanst. 304 - 283 
 
 Neate v. Marlborough (Duke of), 3 My. & Cr. 407 ; 9 Sim. 
 
 60- - 296 
 
 Needham v. Needham, 1 Ha. 633 ; affirmed 12 L. J. N. S. Ch. 
 
 378 - - - - - - - - 235 
 
 Nelson, Ex parte, Re Hoare, 14 Ch. D. 41 ; 49 L. J. Bky. 44 ; 
 
 42 L. T. 389; 28 W. R. 554 118, 270, 291 
 
 Newcastle, Re Duke of, L. R. 8 Eq. 700 ; 39 L. J. Ch. 68 ; 
 
 21 L. T. 343 ; 18 W. R. 75 - - 182, 307, 308, 310, 322 
 
 Newlands v. Paynter, 10 Sim. 377 - - 384 
 
 Newman v. Rook, 4 C. B. N. S. 434 - - - 355 
 
 Newton v. Askew, 11 Beav. 446 - - 346 
 
 Newton v. Boodle, 6 C. B. 532 ; 18 L. J. C. P. 73 ; 12 Jur. 
 
 1088 - - - - - - --5 
 
 Newton v. Rowe, 8 Sc. N. R. 26 - 35, 38 
 
 Newton v. Rowe, 7 Man. & Gr. 334 - - 41 
 
 Nicholls v. Rosewarne, 6 C. B. N. S. 480 ; 28 L. J. C. P. 
 
 273 ; 5 Jur. N. S. 1266 - - 335, 341 
 
 Nicholson v. Squire, 16 Ves. 260 - - 264 
 
 Noad v. Backhouse, 2 Y. & C. C. C. 529; 12 L. J. N. S. Ch. 
 
 446 - 367 
 
 North v. Miles, 1 Camp. 389 - - 72, 73 
 
 Norton v. Simmes, Hob. 13- - 71 
 
 Norwich (Mayor of) v. Gill, 1 Dowl. 246 ; 8 Bing. 27 ; 1 
 
 Moo. & Sc. 91 ; 1 L. J. N. S. C. P. 46 - 71, 402 
 
 Nott v. Sands, W. N. (1883) 74 - - - - 20 
 
 0. 
 
 O'Brien v. Goold, Ale. & Na. 41 - - 185 
 
 Odes v. Woodward, 2 Ld. Raymd. 850 51, 115 
 
 Oliver v. Lowther, 42 L. T. 47 ; 28 W. R. 381- - 313, 324 
 
 O'Neill v. Cunningham, Ir. R. 6 C. L. 503 - - 357 
 
 Onslow's Trusts, Re, L. R. 20 Eq. 677 ; 44 L. J. Ch. 928 - 341, 
 
 343, 344 
 
 Oppert v. Beaumont, 18 Q. B. D. 435 ; 56 L. J. Q. B. 216 ; 
 
 35 W. R, 266 - - - 42 
 
 O'Reillys, Re, 2 Hog. 20 - - 230, 264 
 
 Osborne r. Milman, 18 Q. B. D. 471 ; 56 L. J. Q. B. 263 ; 
 
 56 L. T. 808 ; 35 W. R. 397 - - - - - 247 
 
 Otto v. Lindford, 18 Ch. D. 394 ; 51 L. J. Ch. 102; 46 L. T. 
 
 35; 30 W. R. 418- - 42
 
 XXXV111 TABLE OF CASES. 
 
 PAGE 
 
 Outram v. Morewood, 3 East, 346 - - 97 
 
 Owen v. Homan, 4 H. L. Gas. 997 - - - - 313 
 
 P. 
 
 Pack v. Tarpley, 9 A. & E. 468 ; 1 Per. & Day. 478; 8 L. J. 
 
 N. S. M. 0. 93 204, 422 
 
 Packington v. Culliford, 1 Roll. Abr. tit. Executors, pi. H. 2 69 
 Page, Ex parte, 17 Ves. 59 - - 74 
 
 Paget v. Perchard, 1 Esp. 205 - - 147 
 
 Palgrave v, Windham, 1 Stra. 212 - - 140 
 
 Palmer's Case, 4 Eep. 74 a; S. C. sub nom. Palmer v. 
 
 Humphrey, Cro. Eliz. 584 - - 130, 187 
 
 Palmer v. Cohen, 2 B. & Ad. 966 - - 52 
 
 Palmer v, Vaughan, 3 Swanst. 173 - - - 366 
 
 Paragon and Spero Mining Co., Ee, 8 Jur. N. S. 11 - 337 
 
 Parker, Ex parte, 3 Ves. 554 - - 216 
 
 Parkes v. Mosse, Cro. Eliz. 181 - - 55 
 
 Parry v. The Great Ship Co., 4 B. & S. 555 ; 33 L. J. Q. B. 
 
 41 - - - 38 
 
 Parsons v. Loyd, 3 Wils. 341 - 92 
 
 Partridge v, Foster, 34 Beav. 1 - 298, 305 
 
 Pashler v. Vincent, 8 Ch. D. 825 ; 27 W. E. 2 - 216 
 
 Patterson v. Doyle, 4 L. E. Ir. 33 - 65 
 
 Payne v. Drewe, 4 East, 523 - 114, 285 
 
 Peace and Waller, Ee, 24 Ch. D. 405 ; 31 W. E. 899 - 323, 324, 
 
 378, 380 
 
 Peacock v. Harris, Salk. 331 - - 193 
 
 Peacock v. Purvis, 2 Bro. & B. 362- - 139 
 
 Pearce v . Crutchfield, 14 Ves. 206 - - 260 
 
 Pearse v. Brook, W. N. (1870) 216 - - 342 
 
 Pease v. Fletcher, 1 Ch. D. 273 ; 45 L. J. Ch. 265 ; 33 L. T. 
 
 644 ; 24 W. E. 158 - - 312, 321 
 
 Pelham v. Harley, 3 Swanst. 291 - - 106, 276, 277, 292 
 
 Pelham v. Newcastle (Duchess of) (No. 2), 3 Swanst. 289 - 277, 
 
 278, 280 
 
 Pelham v. Newcastle (Duchess of) (No. 3), 3 Swanst. 290 - 276, 
 
 278 
 
 Pelham v. Newcastle (Duchess of) (No. 4), 3 Swanst. 293 - 292 
 Penoyer v. Brace, 1 Ld. Eaym. 244 ; Comb. 441 - 35, 49 
 
 Perkins v. Bradley, 1 Ha. p. 232 - - 344 
 
 Perkins v. National Assurance and Investment Association, 
 
 26 L. J. Ex. 182; 2 H. & N. 71; 3 Jur. N. S. 371 - - 21
 
 TABLE OF CASES. 
 
 PAGE 
 
 Perkins v. Plympton, 5 Moo. & Pa. 731 ; 7 Bing. 676 - - 92 
 Perkinson v. Gilford, Cro. Car. 539; W. Jones, 430 - 69, 81, 
 
 123, 136 
 
 Perks v. Mylrea, W. N. (1884) 64 - - 386 
 
 Ferryman v. Dinham, 1 Bep. Ch. 152 [81] - - - 275 
 
 Petty v. Daniel, 34 Ch. D. 172 ; 56 L. J. Ch. 192 ; 55 L. T. 
 
 745 ; 35 W. E. 151 - 240, 241, 243, 251, 252 
 
 Phelps v. St. John, 10 Exch. 895 ; 24 L. J. Exch 171 - 201 
 Philips v. Morgan, 4 B. & Aid. 652 - -145, 410 
 
 Phillips v. Berkeley, 5 Dowl. 279 - - 201 
 
 Phillips v. Birch, 4 Man. & Gr. 403 ; 5 Sc. N. S. 178 ; 2 
 
 Dowl. N. S. 97 ; 11 L. J. C. P. 297 - - 35, 38 
 
 Phillips v. Canterbury (Viscount), 11 M. & "W. 619 ; 12 L. J. 
 
 N. S. Exch. 401 - 81, 126, 159 
 
 Phillips v. Jones, 15 Q. B. 859 ; 19 L. J. Q. B. 374 - 197 
 
 Picard v. Hine, 5 Ch. 274 - 378, 379, 380 
 
 Pickard v. Paiton, 1 Sid. 276 - - - 201 
 
 Pickering v. Ilfracombe Eail. Co., L. E. 3 C. P. 235 ; 37 
 
 L. J. C. P. 118; 17 L. T. 650; 16 W. E. 458 - - 341 
 
 Pike v. Fitzgibbon, 17 Ch. D. 454 ; 50 L. J. Ch. 394 ; 44 
 
 L. T. 562 ; 29 W. E. 551 - - 379, 380, 388 
 
 Fillers, Ex parte, Ee Curtoys, 17 Ch. D. 653 ; 50 L. J. Ch. 
 
 691 ; 44 L. T. 691 ; 29 W. E, 575 - 373 
 
 Pilkingtou r. Cooke, 16 M. & "W. 615 ; 4 Dowl. & L. 347 ; 
 
 17 L. J. Exch. 141 - -159, 162 
 
 Pinches v. Harvey, 1 Q,. B. 868 ; 1 Ga. & Day. 236 ; 10 
 
 L. J. N. S. Q. B. 316- - - 38 
 
 Pinney v. Hunt, 6 Ch. D. 98 ; 26 W. E. 69 - 10 
 
 Piper v. Piper, W. N. (1876) 202 - - 256 
 
 Playfair v. Musgrove, 14 M. & W. 239 ; 3 Dowl. & L. 72 ; 
 
 15 L. J. Ex. 26 - 82, 129 
 
 Plunkett v. Penson, 2 Atk. 290 - - 180, 181 
 
 Polini v. Gray (2), 12 Ch. D. 438; 51 L. T. 173 - - 42 
 
 PoUexfen v. Sibson, 16 Q. B. D. 792 ; 55 L. J. Q. B. 294 ; 
 
 54 L. T. 297 ; 34 W. E. 534 - 29 
 
 Poole (Mayor of) v. Whitt, 15 M. & "W. 571 ; 16 L. J. Exch. 
 
 229 - - - - - - - - 181 
 
 Pope, Ee, 17 Q. B. D. 743 ; 55 L. J. Q. B. 522 ; 34 "W. E. 
 
 693 - - 12, 189, 303, 313, 316, 321, 322, 329 
 
 Pope v. "Ward, 1 Cox, 194 - - 287 
 
 Porter v. Wotton, 28 Sol. Journ. 548 - 160, 194 
 
 Pott v. Clegg, 16 M. & "W. 321 ; 16 L. J. Exch. 210 - - 357 
 Potts v. "Warwick and Birmingham Canal, Kay, 142 - 175 
 
 Powell v. Hibberd, 15 Q. B. 129 ; 19 L. J. Q. B. 347 - 201, 202, 
 
 204, 205 
 
 Prentice r. Prentice, Dick. 388- - - - - 293
 
 XI TABLE OF CASES. 
 
 PAGE 
 
 Price, Ee, Financial Corporation v. China Steamship Co., 
 
 L. E. 4 C. P. 155- - 351 
 
 Price v. Philcox, 7 Dowl. 559 - - - 236 
 
 Price v. Varney, 3 B. & C. 733 ; 5 D. & E. 612 ; 3 L. J. 
 
 K. B. 107- - - 185 
 
 Priddy v. Eose, 3 Mer. 86 - - - 366 
 
 Pringle v. Isaac, 11 Price, 445 - - 117 
 
 Proctor v. Nicholson, 7 C. & P. 67 - - - 135 
 
 Proskauer v. Siebe, W. N. (1885) 159 - 312 
 Protector Endowment Co. v. Whitlam, 36 L. T. 467 - - 65 
 
 Pulteney v. Shelton, 5 Ves. 147 - - 260 
 
 Pusey v. Pusey, 1 Vern. 273 - - 195, 221 
 
 Pyman v. Burt, W. N. (1884) 100 - - 33 
 
 Pyne v. Kinna, Ir. E. 11 C. L. 40 - - - - 359 
 
 E. 
 
 Eaban v. Plaistow, 5 Burr. 2727 - - 145 
 
 Eabbitts v. Woodward, 20 L. T. 693, 778 - - 200 
 
 Eamsay v. Eaton, 10 M. & W. 22 ; 2 Dowl. N. S. 219 ; 11 
 
 L. J. Exch. 333 - - 89 
 
 Eamsbottom v. Buckhurst, 2 M. & W. 565- - 174 
 
 Eandall v. Lithgow, 12 Q. B. D. 525 ; 53 L. J. Q. B. 518 ; 
 
 50 L. T. 587 ; 32 W. E. 794 - - - 359 
 
 Eandell v. Wheble, 10 A. & E. 719 ; 2 Per. & Day. 602 ; 9 
 
 L. J. N. S. Q. B. 254 - - 80 
 
 Eandfield v. Eandfield, 7 W. E. 651 - - - 317 
 
 Eanken v. Harwood, 10 Jur. 794; 5 Hare, 215 - 40, 55 
 
 Eatcliff v. Tate, 1 Keb. 779 - - 105 
 
 Eawlinson v. Stringer, 1867, E. No. 100 - - 271 
 
 Eawstorne v. Wilkinson, 4 M. & S. 256 - - 159 
 
 Eay v. , 3 Swanst. 306 - - 283 
 
 Eeece v. Taylor, 5 De G. & Sm. 480 ; 21 L. J. Ch. 463 - 346 
 Eeeves v. Slater, 7 B. & C. 486 ; 1 Man. & Ey. 265 ; 6 L. J. 
 
 K. B. 77 - - 36 
 
 E. v. All Saints', Wigan (Churchwardens), L. E. 1 App. Cas. 
 
 614; 35 L. T. 381 ; 25 W. E. 128 - - - 18 
 
 E. v. Barber, 3 Anstr. 717 - - 156 
 
 E. v. Bird, 2 Show. 87 - - 124, 144, 410 
 
 E. v. Bowles, Wightw. 116- - 156 
 
 E. v. Burgess, 8 A. & E. 275 ; 3 Nev. & Per. 366 - - 251 
 E. v. Deane, 2 Show. 85 - - 129 
 
 E. v. De la Motte, Forr. 162 - - - 181 
 
 E. v. Deyon (Sheriff of), 3 Dowl. 10 - - - 255
 
 TABLE OF CASES. ill 
 
 PAGE 
 
 R. v. Devon (Sheriff of), 1 Chit. Rep. 643 - - 90 
 
 R. v. Essex County Court (Judge of), 18 Q. B. D. 704 - 32 
 R. v. Glamorganshire (Sheriff of), 1 Dowl. N. S. 308 - - 70 
 R. v. Herts (Sheriff of), 9 Dowl. 916. See Dod v. Coleman - 410 
 R. v. Harland, 8 A. & E. 826; 1 Per. & Day. 93; 8 L. J. 
 
 N. S. Q. B. 283 - - - - - - 104 
 
 R. v. Hemsworth, 3 C. B. 745 224, 247, 433 
 
 R. v. London (Bishop of), 1 D. & R. 486 -201, 202 
 
 R. v. Monmouth (Sheriff of), 1 Marsh. 344 - - 61 
 
 R. v. Myers, 1 T. R. 265 - - 245 
 
 R. v. Palmer, 2 East, 411 - - 255 
 
 R. v. Pember, Lee, Ca. temp. Hard. 112 - - 75 
 
 R. v. Smithies, 3 T. R. 351 - - - 231 
 
 R. v. Robinson, 2 C. M. & R. 334 ; 4 Dowl. 447 ; 4 L. J. 
 
 N. S. Exch. 319 - - 158 
 
 R. v. Villers, 8 Price, 587 - - 133, 158 
 
 R. v. Weston, 8 Jur. 1122 -224, 247 
 
 Remmett v. Lawrence, 15 Q. B. 1004 ; 20 L. J. Q. B. 25 ; 
 
 14 Jur. 1067 - - 62, 148 
 
 Republic of Costa Rica v. Strousberg, 16 Ch. D. 8 ; 50 L. J. 
 
 Oh. 7; 43 L. T. 399; 29 W. R. 179 - - - 66 
 
 Republic of Liberia v. Imperial Bank, L. R. 9 Ch. 569 ; 43 
 
 L. J. Ch. 640 ; 31 L. T. 262 ; 22 W. R. 814 ; S. C. affirmed 
 
 sub nom. Republic of Liberia v. Roye, 1 App. Cas. 139; 45 
 
 L. J. Ch. 297 ; 34 L. T. 145 ; 24 W. R. 967 - 226 
 
 Republic of Peru v. Weguelin, 24 W. R. 297 - - - 42 
 
 Rese v. Fenn, 2 Dowl. 182 - - 236 
 
 Reynolds, Re, 10 W. R. 709 - - - 251 
 
 Reynolds v. Barford, 2 Dowl. & L. 327 ; 8 Sc. N. R. 233 ; 7 
 
 Man. & Gr. 449; 13 L. J. C. P. 177 ; 8 Jur. 961 - 61, 141 
 Rhodes v. Hull, 26 L. J. Exch. 265 - 38 
 
 Richards v. Kitchin, 36 L. T. 730 ; 25 W. R. 602 - - 241 
 
 Richardson v. Elmit, 2 C. P. D. 9 ; 36 L. T. 58 - 356, 453 
 Richardson v. Greaves, 10 W. R. 45 - - 355 
 
 Richardson v. Trundle, 8 C. B. N. S. 474 ; 29 L. J. C. P. 310 - 64 
 Richardson v. Webb, 1 Mor. B. R. 40; 76 L. T. (N.)397 - 166, 186 
 Ricketts v. Mornington, 7 Sim. 200 ; 4 L. J. N. S. Ch. 21 - 226 
 Rider v. Kidder, 12 Yes. 202 238, 258 
 
 Ridgway v, Davis, 2 Jones, 507 - - 286 
 
 Riseley v. Ryle, 11 M. & W. 16 ; 12 L. J. N. S. Exch. 322 - 140 
 Roberts v. Albert Bridge Co., 8 Ch. 753 ; 42 L. J. Ch. 767 - 214 
 Roberts v. Ball, 3 Sm. & G. 168 ; 24 L. J. Ch. 471 ; 1 Jur. 
 
 N. S. 585 - -224, 225 
 
 Roberts v. Death, 8 Q. B. D. 319 ; 51 L. J. Q. B. 15 ; 46 
 
 L. T. 246 ; 30 W. R. 76 - - 361,362
 
 X TABLE OF CASES. 
 
 PAGE 
 
 Eobinson v. Burbidge, 9 0. B. 289; 1 L. M. & P. 94; 19 
 
 L. J. C. P. 242 - - - - - - 336 
 
 Eobinson v. Hedger, 13 Jur. 846 ; 14 Jur. 784 - - 322 
 
 Eobinson v. Nesbitt, L. E. 3 C. P. 264 ; 17 L. T. 653 ; 16 
 
 W. E. 543 - - - 341 
 
 Eobinson v. Wood, 5 Beav. 388 ; 12 L. J. N. S. Oh. 93 - 347 
 Eoe d. Blair v. Street, 2 Ad. & El. 329 ; 4 N. & M. 42 ; S. C. 
 
 4 L. J. N. S. K B. 67 ' - 39, 101, 405 
 
 Eoe d. Saul v. Dawson, 3 Wils. 49 - 103, 106, 405 
 
 Eoe v. Hammond, 2 C. P. D. 300 ; 46 L. J. 0. P. 791 - 157 
 Boffey v. Bent, L. E. 3 Eq. 759 - - 340 
 
 Eogers v. Kennay, 9 Q. B. 592 ; 15 L. J. Q. B. 381 - 135 
 
 Rogers v. Pitcher, 6 Taunt. 202 - 173, 174 
 
 Eollason, Ee, Halse's Claim, 34 Oh. D. 495 ; 56 L. J. Ch. 
 
 768 ; 56 L. T. 303 133, 134, 135 
 
 Eolleston v. Morton, 1 Dr. & War. 171 - - 305, 307 
 
 Eowley v. Eidley, 3 Swanst. 306 - - 282, 317 
 
 Eoyal Bank of Australia, In re, 25 L. J. Ch. 649 ; 2 Jur. 
 
 N. S. 390 - -338, 340 
 
 Eoyle v. Busby, 6 Q. B. D. 171 ; 50 L. J. Q. B. 196; 43 L. T. 
 
 717; 29 W. E. 315 - 159 
 
 Eush, Ee, L. E. 10 Eq. 442 ; 39 L. J. Ch. 759 - - - 285 
 
 Eush, Ee, 22 L. T. 416; 18 W. E. 417 - - 286 
 
 Eussell v. East Anglian Eail. Co., 3 Macn. & G. 104; 20 
 
 L. J. Ch. 257 - - 319 
 
 Eussell v. M'Cullock, 1 K & J. 313; 1 Jur. N. S. 157 - 306, 
 
 309 
 
 Euston v. Hatfield, 3 B. & Aid. 204 ; 1 Chit. Eep. 613 63, 144 
 Eybot v. Peckham, 1 T. E. 731, n. - - 118 
 
 S. 
 
 Saffery, Ex parte, Ee Brenner, 16 Ch. D. 668; 44 L. T. 324 ; 
 
 29 W. E. 749 - - 122 
 
 Salaman v. Donovan, 10 Ir. C. L. E. App. xiii. - - 346 
 
 Salisbury (Marquis of) v. Eay, 8 C. B. N. S. 193.; 29 L. J. 
 
 C. P. 225 - - 160 
 
 Salm Kyrburg v. Posnanski, 13 Q. B. D. 218 ; 53 L. J. Q. B. 
 
 428; 32 W. E. 752 - - - 239 
 
 Salt v. Cooper, 16 Ch. D. 544 ; 50 L. J. Ch. 529 ; 43 L. T. 
 
 682 ; 29 W. E. 553 - 10, 312, 321 
 
 Sampson v. Seaton and Beer Eail. Co., L. E. 10 Q. B. 28; 
 
 44 L. J. Q. B. 31 ; 31 L. T. 672 ; 23 W. E. 212 - - 371
 
 TABLE OF CASES. xlili 
 
 PAGE 
 
 Samuel v. BuUer, 1 Exch. 439 ; 17 L. J. Exch. 54 - - 245 
 
 Sanderson v. Baker, 2 "Win. Bl. 832 - - - 74 
 
 Sansom v. Sansom, 4 P. D. 69 ; 48 L. J. P. D. & A. 25 ; 39 
 
 L. T. 642 ; 28 W. E. 692 - - 367, 369 
 
 Sargant v. Bead, 1 Ch. D. 600; 45 L. J. Ch. 206 - - 315 
 
 Sargent's Policy, Ee, 7 L. E. IT. 66- - 133 
 
 Saul v. Dawson, 3 Wils. 49 - 103, 106, 405 
 
 Sawle v. Paynter, 1 Dowl. & Ey. 307 74, 75, 77, 117 
 
 Saxby v. Saxby, 7 Sim. 140 - - - 259 
 
 Scarlett v. Hanson, 12 Q. B. D. 213; 53 L. J. Q. B. 62 ; 50 
 
 L. T. 75 ; 32 W. E. 310 - - 136, 138 
 
 Scarth, Ee, L. E. 10 Ch. 234 ; 44 L. J. Bky. 29 ; 31 L. T. 
 
 73 ; 23 W. E. 153 - - - 197 
 
 Schirges v. Schirges, W. N. (1886) 85 - 240 
 
 Schroeder v. Clough, 46 L. J. C. P. 365 ; 35 L. T. 850- - 33 
 Scott v. Hastings (Lord), 4 K & J. 633 - - 341 
 
 Scott v. Marshall, 2 Cr. & J. 238 ; 2 Tyr. 257 ; 1 L. J. N. S. 
 
 Exch. 97 - - 72, 73 
 
 Scott v. Morley, 20 Q. B. D. 120 ; 57 L. J. Q. B. 43 ; 36 
 
 W. E. 67 - 25, 26, 376, 386, 387 
 
 Scott v. Scholey, 8 East, 467 129, 135, 136, 181, 182, 187, 309 
 Seal v. Hudson, 4 Dowl. & L. 760 ; 11 Jur. 610 - - 74 
 
 Searle v. Choat, 25 Ch. D. 723 ; 50 L. T. 470; 32 W. E. 397- 318 
 Selous v. Croydon Local Board, 53 L. T. 209 ; W. N. (1885) 
 
 105 - - - - 235, 272, 274, 275 
 
 Semayne's Case, 5 Eep. 91 ; IS. L. C. 9th ed. 115 - 72, 85 
 Sergeant v. Cowan, 1 Cr. & M. 491 ; 3 Tyr. 538 ; 5 C. & P. 492 71 
 Seroka v. Kattenburg, 17 Q. B. D. 177 ; 55 L. J. Q. B. 375 ; 
 
 54 L. T. 649 ; 34 W. E. 542 - - - 386 
 
 Seymour v. Corporation of Brecon, 29 L. J. Exch. 243 - 255 
 Shakespear's Settlement, Ee, 30 Ch. D. 169 ; 55 L. J. Ch. 
 
 44 ; 53 L. T. 145 ; 38 W. E. 744 - - 385, 387 
 
 Shapland, Ee, 23 W. E. 40 ; W. N. (1874) 202 - - - 292 
 
 Sharp v. Key, 8 M. & W. 379 ; 9 Dowl. 770 ; 10 L. J. N. S. 
 
 Exch. 304 - 174 
 
 Shattock v. Garden, 6 Exch. 725 ; 2 L. M. & P. 466; 21 L. J. 
 
 Exch. 200 - - - - -138, 148 
 
 Shaw v. Hudson, 48 L. J. Ch. 689 - - 336, 345 
 
 Shaw v. Wright, 3 Ves. 22 - 285, 286 
 
 Sherwood v. Clark, 15 M. & W. 764 37, 415 
 
 Shippey v. Grey, 49 L. J. C. P. 524 ; 42 L. T. 673 ; 28 W. 
 
 E. 877 - - - - - - - 373 
 
 Shot-land v. Govett, 5 B. & C. 485 ; 8 D. & E. 257 ; 4 L. J. 
 
 K B. 212- - - - - - - 162
 
 TABLE OF CASES. 
 
 PAGE 
 
 Simmons v. Storer, L. E. 14 Ch. D. 154 ; 49 L. J. Oh. 121 ; 
 
 42 L. T. 291 ; 28 W. E. 408 - - - 374 
 
 Simmonds v. Kinnaird (Lord), 4 Ves. 735 - - 287 
 
 Sinclair v. Eldred, 4 Taunt. 7 - - - 87 
 
 Six Carpenters' Case, 8 Eep. 146a ; 1 S. L. C. 9th ed. 144 - 82 
 Skeeles v. Shearly, 3 My. & Cr. 112 ; 8 Sim. 153 ; 6 L. J. 
 
 N. S. Ch. 21 - - - 180 
 
 Skip v. Harwood, 3 Atk. 564 - 258, 313 
 
 Slackford v. Austen, 14 East, 468 - - 89 
 
 Slade v. Hawley, 13 M. & W. 575 ; 2 Dowl. & L. 700 ; 14 
 
 L. J. Exch. 217 - - - 138 
 
 Slade v, Hulme, Ee Slade, 18 Ch. D. 653 ; 50 L. J. Ch. 729 ; 
 
 45 L. T. 276; 30 W. E. 28 - - 286, 287, 291 
 
 Slater v. Hames, 7 M. & W. 413 ; 9 Dowl. 221 ; 10 L. J. 
 
 Exch. 100 - 159 
 
 SmaUcomb v. Buckingham, Garth. 419; 1 Salk. 320 - 117, 118 
 Smallcomb v. Cross, 1 Ld. Eayrn. 251 - 116 
 
 Smallcombe v. Olivier, 13 M. & W. 77 ; 2 Dowl. & L. 217 ; 
 
 13 L. J. N. S. Exch. 305 - - 60 
 
 Smart v. Button, 2 Nev. & M. 426; 8 A. & E. 568, n.; 3 
 
 L. J. N. S. K. B. 52 - - - - - 84 
 
 Smith, Ee, Ex parte Brown, 20 Q. B. D. 321 ; 57 L. J. Q. B. 
 
 212 ; 36 W. E. 403 - - - 370 
 
 Smith v. Cowell, 6 Q. B. D. 75 ; SOL. J. Q. B. 38 ; 43 L. T. 
 
 528 ; 29 W. E. 227 - 312, 321 
 
 Smith v. Johnson, 5 Tyr. 981 ; 2 C. M. & E. 350 ; 4 Dowl. 
 
 208 ; 1 Gale, 257 - - 47 
 
 Smith v. Keal, 9 Q. B. D. 340 ; 51 L. J. Q. B. 287 ; 47 L. T. 
 
 142 ; 31 W. E. 76 - - - 90 
 
 Smith v. Eussell, 3 Taunt. 400 - 140 
 
 Smiths. Smith, L.E. 9 Ex.121; 43L. J.Ex.86; 30 L.T. 429 -21, 22 
 Smith v. Sydney, L. E. 5 Q. B. 203 ; 39 L. J. Q. B. 145 ; 22 
 
 L.T. 16; 18 W. E. 628 - - 92 
 
 Smith v. Youde, 2 P. & F. 376 - - - 344 
 
 Sneary v. Abdy, 1 Ex. D. 299 ; 45 L. J. Q. B. 803 ; 34 L. T. 
 
 801 - * - 160, 471 
 
 Snow v. Bolton, 17 Ch. D. 433 ; 50 L. J. Ch. 743 ; 44 L. T. 
 
 571 ; 29 W. E. 538 - - 243, 272, 274 
 
 Snowball v. Groodricke, 4 B. & Ad. 541 - - 72 
 
 Societe Generale de Paris v. Tramways Union Co., 14 Q. B. 
 
 D. 424 ; 54 L. J. Q. B. 177 ; 52 L. T. 912 - 331 
 
 Solicitor, In re A, 14 Ch. D. 152 ; 49 L. J. Ch. 295 ; 42 L. T. 
 
 310 ; 28 W. E. 529 - - 65, 241 
 
 Solicitor, Ee , A, 33 W. E. 131 ; W. N. (1884) 217 21, 235 
 
 Somerset (Duke of) v. Cookson, 3 P. Wms. 389 ; 1 W. & T. 
 
 L. C. 6th ed. 961 - - 195,221
 
 TABLE OF CASES. xv 
 
 PACJK 
 South, Be, 9 Ch. 369; 43 L. J. Ch. 441 ; 30 L. T. 347; 22 
 
 W. E. 460 - - 178, 310 
 
 South "Western Loan Co. v. Eobertson, 8 Q. B. D. 17 ; 51 
 
 L. J. Q. B. 79 ; 46 L. T. 427 ; 30 W. E. 102 - - 340 
 
 Sparks v. Spink, 7 Taunt. 311 - ^ - - 76 
 
 Sparks v. Younge, 8 Ir. C. L. E. 251 353, 360, 372 
 
 Speake v. Eichards, Hob. 206 - - - 136 
 
 Spencer v . Cox, 2 Anstr. 535, n. - - 365 
 
 Spooner v. Payne, 1 De G. M. & G. 383 ; 21 L. J. Ch. 791 - 367 
 Sprunt v. Pugh, 7 Ch. D. 567 ; 26 W. E. 473 - - - 320 
 
 Squire v. Huetson, 1 Q. B. 308 ; 10 L. J. N. S. Q,. B. 116 - 135 
 Stacpoole v. Walsh, 6 L. E. Ir. 444 - - 105, 106 
 
 Standish v. Eoss, 3 Exch. 527 ; 19 L. J. Exch. 185 - 62 
 
 Stanger Leathes v. Stanger Leathes, W. N. (1882) 71 - - 321 
 Stanhope Silkstone Collieries, Ee, 11 Ch. D. 160; 48 L. J. 
 
 Ch. 409 ; 40 L. J. 204 ; 27 W. E. 561 - - 369, 373 
 
 Stanley v. Bond, 8 Beav. 50 - - - 338 
 
 Stanley v. Stanley, 7 Ch. D. 589 ; 47 L. J. Ch. 256 ; 37 L. T. 
 
 777 ; 26 W. E. 310 - - - - - 339 
 
 Steed v. Layner, 2 Ld. Eaym. 1382 - - 172 
 
 Stephens v. Xeale, 1 Mad. 550 - 245 
 
 Stephens v, Eothwell, 6 Moore, 338 ; 3 Brod. & Bing. 143 - 162 
 Stephens v. Workman, 8 L. T. N. S. 232; 11 W. E. 503 ; 
 
 1 N. E. 563 - - - - 262 
 
 Stevens v. Mid Hants Ey. Co., 8 Ch. 1064; 42 L. J. Ch. 
 
 694 ; 18 L. T. 318 ; 21 W. E. 858 - 175 
 
 Stevens v. Phelips, 10 Ch. 417 ; 44 L. J. Ch. 689 ; 23 W. E. 
 
 716 - - 361, 371 
 
 Stileman v. Ashdown, 2 Atk. 608 - - 298 
 
 Stimson v. Farnham, L. E. 7 Q. B. 175 ; 41 L. J. Q. B. 52 ; 
 
 25 L. T. 747 ; 20 W. E. 183 - - 62, 81, 82 
 
 Stock v. Holland, L. E. 9 Exch. 147 ; 43 L. J. Exch. 112 ; 
 
 22 W. E. 661 - - - 155 
 
 Stockdale v. Hansard, 11 A. & E. 253 ; 3 Per. & Dav. 330 ; 
 
 8 Dowl. 522 ; 9 L. J. N. S. Q, B. 75 - - 136 
 
 Stokoe v, Cowan, 29 Beav. 637 ; 30 L. J. Ch. 882 - - 133 
 Stone v. Lidderdale, 2 Anstr. 533 - - 365 
 
 Stonehewer v. Thompson, 2 Atk. 440 - - - 298 
 
 Stratford v. Twynam, Jac. 418 - 125 
 
 Studd v. Acton, 1 H. Bl. 468 - - - 246 
 
 Sturgis v. London (Bishop of), 7 El. & Bl. 542 ; 26 L. J. Q. B. 
 
 209 ; 2 Jur. N. S. 864 - 191, 202, 203 
 
 Style's Case, 2 Brownl. & Golds. 216 - - - 104 
 
 Summers v. Morphew, 61 L. T. Journ. 140- - 356 
 
 Sutton, Ee, Sutton v. Sutton, 32 L. J. Ch. 437 ; 9 Jur. N. S. 
 
 456 - - - -. - 323 
 
 Swann v. Falmouth, 8 B. & C. 456 ; 2 Man. & Ey. 534 - 119
 
 TABLE OF CASES. 
 
 PAGE 
 
 Swinfen v. Swinfen, 18 C. B. 485 ; 25 L. J. C. P. 303 - - 212 
 Sykes v. Dyson, L. E. 9 Eq. 228 ; 39 L. J. Ch. 288 ; 21 L. T. 
 
 696 - 272 
 
 Sympson v. Prothero, 26 L. J. Ch. 671 - - - - 373 
 
 T. 
 
 Tanked v. Allgood, 4 H. & N. 438 ; 28 L. J. Exch. 362 - 134 
 Tapp v. Jones, L. E. 10 Q,. B. 591 ; 44 L. J. Q. B. 127 ; 33 
 
 L. T. 201 ; 23 W. E, 694 - 353, 354, 360, 363 
 
 Tatham v. Parker, 1 Sm. & G. 506 ; 22 L. J. Ch. 903 -270, 277, 291 
 Tawell v. Slate Co., 3 Ch. D. 629 - - 98 
 
 Taylor v. Baker, 2 Mod. 214 - 123 
 
 Taylor v. Cole, 3 T. E. 292 - - 129, 130, 172 
 
 Taylor v. Eckersley, 2 Ch. D. 302 ; 45 L. J. Ch. 527 ; 34 
 
 L. T. 637 ; 24 W. E. 450 - - 315 
 
 Taylor v. Lanyon, 6 Bing. 536 ; 4 Moo. & Pa. 316 ; 8 L. J. 
 
 C. P. 180 - - - 141 
 
 Taylor v. Turnbull, 4 H. & N. 495 - - 340 
 
 Temple v. Bank of England, 6 Ves. 769 - - 344 
 
 Thomas v. Cross, 2 Dr. & Sm. 423; 34 L. J. Ch. 580; 11 
 
 Jur. N. S. 384 - - 306 
 
 Thomas v. Nokes, L. E. 6 Eq. 521 ; 16 W. E. 995 - - 235 
 
 Thomasv. Palin, 21 Ch. D. 360; 47L.T.207 ; 30 W. E. 716 - 236 
 Thompson and Curzon, Ee, 29 Ch. D. 177 ; 54 L. J. Ch. 610; 
 
 52 L. T. 498 ; 33 W. E. 688 - - - 384 
 
 Thompson v. Clerk, Cro. Eliz. 504 - - 124 
 
 Thornton v. Finch, 4 Giff. 515 ; 34 L. J. Ch. 466 - - 299 
 
 Thoroughgood's Case, Noy, 73 - 55 
 
 Tilney v. Stansfield, 14 Ch. D. 152 ; 28 W. E. 582 - - 244 
 Tink v. Bundle, 10 Beav. 318 - 319 
 
 Trehernev. Dale, 27 Ch. D. 66; 51 L. T. 553; 33 W. E. 
 
 97 - - 236, 240, 243 
 
 Triminger v. Keene, W. N. (1882) 106 - - 77 
 
 Tross v. Michell, Cro. Eliz. 172 - - 357 
 
 Trotter v. Trotter, Jac. 533 - - 248 
 
 Tunstall v. Boothby, 10 Sim. 542 - - 365 
 
 Tunstall v. Trappes, 3 Sim. 300 - - 298 
 
 Turnbull v. Eobertson, 47 L. J. C. P. 294 ; 38 L. T. 389; 26 
 
 W. E. 557 - - - - - - - 370 
 
 Turner v. Clifford, W. N. (1870) 199 - 286 
 
 Turner v. Davies, 2 "Wms. Saund. 439 - - 41 
 
 Turner v. Eelgate, 1 Lev. 95 - 92 
 
 Turner v. Gill, 3 Dowl. 30 - - 236 
 
 Turner v. Jones, 1 H. & N. 878 ; 26 L. J. Exch. 262 - 370
 
 TABLE OF CASES. 
 
 PAGE 
 
 Turvil v. Tipper, Latch, 222 - 147 
 
 Tyrrel v. Bath, Vin. Abr. tit. Sheriff (Y.) - - 75 
 
 Tyson v. Paske, 2 Ld. Eaym. 1212 ; Salk. 333 - 159, 193 
 
 U. 
 
 Underden v. Burgess, 4 Dowl. 104 - - 473 
 
 Underhill v. Devereux, 2 Saund. 68 ; 2 Wms. Saund. 197 - 44, 
 
 48, 164, 170 
 Union Bank of London v. Ingram, 20 Ch. D. 463 ; 51 L. J. 
 
 Ch. 508 ; 46 L. T. 507 ; 30 W. E. 375 - - 302 
 
 Union Bank of London v. Lenanton, 3 C. P. D. 243; 47 
 
 L. J. Exch. 409; 38 L. T. 698 121, 126, 127, 149 
 
 United Telephone Co. v. Dale, 25 Ch. D. 778 ; 53 L. J. Ch. 
 
 295 ; 50 L. T. 85 ; 32 W. E. 428 - - 258 
 
 Upton v. Wells, 1 Leon. 145 - - - - - 102 
 
 V. 
 
 Van Sandau, Ex parte, 1 Phil. 445, 605 ; De Gex, Bky. Cas. 
 
 303; 15 L. J. Bky. 13 - - 261 
 
 Vansandau v. Eose, 2 Jac. & "W". 264 - - - 259 
 
 Van Sandau v. Turner, 6 Q. B. 773 ; 14 L. J. Q,. B. 154 - 263 
 Vicars v. Colclough, 3 Bro. P. 0. 31 - 284 
 
 Vicars v. Haydon, Cowp. 843 - - - 33 
 
 Vowles v. Young, 9 Ves. 172 - 225 
 
 Vyse v. Brown, 13 Q. B. D. 199; 1 C. & E. 223 ; 33 W. E, 
 
 168 - - - - - - - - 357 
 
 W. 
 
 Waghorne v. Langmead, 1 Bos. & P. 571 - - 115 
 
 Waite v. Bishop, 1 C. M. & E. 507 ; 5 Tyr. 90 ; 4 L. J. N. S. 
 
 Exch. 50 - 203, 293 
 
 Walker v. Bell, 2 Mad. 21 - 281, 293, 436 
 
 Walker v. Eooke, 6 Q. B. D. 631 ; 50 L. J. Q, B. 470 - 352, 353 
 Wallace v. Graham, 11 L. E. Ir. 369 - 236 
 
 Waller v. Weedale, Noy, 107 - - - 124 
 
 Walmsley v. Mundy, 13 Q. B. D. 807 ; 53 L. J. Q. B. 304 ; 
 
 53 L. T. 317 ; 32 W. E. 602 - 315, 319 
 
 Walsal v. Heath, Cro. Eliz. 656 - - 177 
 
 Walsh v. Wason, 30 L. T. 743 ; 22 W. E. 676 - 346 
 
 Walsh v. Wilson, 2 Ir. Ch. Eep. 79 - - - - 254
 
 xlviii TABLE OF CASES. 
 
 PAGE 
 
 Walwyn v. Awberry, 2 Mod. 254 - - 201 
 
 Wai-burton v. Hill, Kay, 470 ; 23 L. J. Ch. 633 - - 346 
 
 Ward v. Booth, L. E. 14 Eq. 195 ; 41 L. J. Ch. 729 ; 20 W. E. 
 
 880 - 282, 292 
 
 Ward v. Hayes, 1 Hog. 107 - -199, 269 
 
 Ward v. Shakeshaft, 1 Dr. & Sm. 269 - 336 
 
 Waring v. Dewberry, 1 Stra. 97 - - 140 
 
 Warren, Ex parte, Ee Holland, 15 Q. B. D. 48; 54 L. J. 
 
 Q. B. 320 ; 53 L. T. 68 ; 33 W. E. 572 - - 153 
 
 Warwick & Worcester Ey. Co., Prichard's Claim, 2 De G. 
 
 F. & J. 354 - - - 359 
 
 Watts v. Jefferyes, 3 Macn. & G. 372 ; 20 L. J. Ch. 659 - 342, 347 
 Watts v. Porter, 3 El. & Bl. 743 ; 23 L. J. Q. B. 345 - 341 
 
 Webb v. Stenton, 11 Q. B. D. 518; 52 L. J. Q. B. 584 ; 48 
 
 L. T. 268 ; 49 L. T. 432 324, 356, 358, 360 
 
 Webber v. Hutcbins, 1 Dowl. N. S. 95 ; 8 M. & W. 319 ; 10 
 
 L. J. N. S. Exch. 354 - - 37 
 
 Webber v. L. B. & S. C. Ey. Co., 51 L. J. Q. B. 154 - - 42 
 Webster v. Webster, 31 Beav. 393 ; 33 L. J. Ch. 490 ; 6 L. T. 
 
 N. S. 11 ; 10 W. E. 503 - - 372 
 
 Weldon v. Winslow, 13 Q. B. D. 784 ; 53 L. J. Q. B. 528 ; 
 
 51 L. T. 643 ; 33 W. E. 219 - - - 386 
 
 Wells v. Foster, 8 M. & W. 149; 10 L. J. Exch. 216; 5 Jur. 
 
 464 - 365 
 
 Wells v. Gibbs, 3 Beav. 399 ; 10 L. J. N. S. Ch. 97 - - 225 
 Wells v. Kilpin, L. E. 18 Eq. 298 ; 44 L. J. Ch. 184 ; 22 W. E. 
 
 675 - 306, 321 
 
 Wenman v. Osbaldiston, 2 Bro. P. C. 276 - 225, 272, 292 
 Wentworth v. Broad water, Skin. 413 - 68 
 
 West v. Skip, 1 Ves. sen. 456 - - - 147 
 
 West v. West, 17 L. E. IT. 49 - 33 
 
 West Cannock Coll. Co., Ex parte, Ee Pearson, 3 Mor. 
 
 B. E. 187 - - - 155 
 
 Westheadv. Eiley, 25 Ch.D. 413;. 53 L. J. Ch. 1153 ; 49 L. T. 
 
 776 ; 32 W. E. 273 - 324 
 
 Westoby v. Day, 2 El. & Bl. 605 ; 22 L. J. Q. B. 418 - - 361 
 Weston v. Coulson, 1 Wm. Bl. 506 - - 70 
 
 Weston v. Davidson, W. N. (1882) 28 - - - 302 
 
 Weston v. James, 1 Salk. 42- - 51 
 
 Wetter v. Eucker, 4 Moo. 172 - - 370 
 
 Wharam v. Broughton, 1 Ves. sen. 180 - 55, 268, 278, 286, 291 
 Wharton v. Naylor, 12 Q. B. 673; 6 Dowl. & L. 136; 17 
 
 L. J. Q. B. 278 - - 139 
 
 Wheatley v. Lane, Saund. 216 a - - - - 27
 
 TABLE OF CASES. 
 
 PAGE 
 
 Whinfield v. Watkins, 2 Ph. Eccl. Eep. 1 202, 204 
 
 Whitchurch, Ex parte, 1 Atk. 55 - - 245, 262 
 
 White v. Baugh, 3 01. & F. 44 ; 9 Bli. N. S. 181 - - 316 
 White v. Binstead, 13 C. B. 304; 22 L. J. C. P. 115; 17 
 
 Jur. 394 - . - 141 
 
 White v. Hayward, 2 Ves. sen. 461 - 4, 55, 115 
 
 White v. Morris, 11 C. B. 1015 ; 21 L. J. C. P. 185 ; 16 Jur. 
 
 500 - - - - - - - 147 
 
 White v. Peterborough (Bishop of), 3 Swanst. 109 - 205, 207 
 White v. Wood, 2 Y. & C. C. C. 615 - 282 
 
 Whitehead v. Harrison, Barnard. 431 - - - 285 
 
 Whitehead v. Lynes, 34 Beav. 161 ; 34 L. J. Ch. 201 - 252, 320 
 Whitehouse, Ex parte, Ee General Horticultural Co., 32 
 
 Ch. D. 512 ; 55 L. J. Ch. 608 ; 54 L. T. 898 ; 34 W. E. 
 
 681 372 
 
 Whitfield v. Prickett, 13 Sim. 259 ; 12 L. J. N. S. Ch. 84 - 342, 
 
 345 
 
 Whitham v. Whitham, W. N. (1885) 176 - - 240 
 
 Whitworth v. Gaugain, 1 Phil. 728 ; 15 L. J. Ch. 433 - 339 
 Whitworth v. Gaugain, 3 Ha. 416 ; 13 L. J. N. S. Ch. 288- 175 
 Widgery v. Tepper, 6 Ch. D. 364 ; 37 L. T. 297 ; 25 W. E. 
 
 872 ------- 336 
 
 Wilbraham v. Snow, 2 Saund. 47 a - 75, 122 
 
 Wilkinson v. Kirby, 15 C. B. 430 ; 2 C. L. E. 1387 ; 23 L. J. 
 
 C. P. 224 ; 1 Jur. N. S. 164 97, 99 
 
 WiUcock v. Terrell, 3 Ex. D. 323 ; 39 L. T. 84 - 270, 289, 367, 
 
 369 
 
 Willett v. Sparrow, 2 Marsh. 293 - - 64 
 
 Williams, Ex parte, Ee Davies, 7 Ch. 314 ; 41 L. J. Bky. 
 
 38 ; 26 L. T. 303 ; 20 W. E. 430 - - 118, 119 
 
 Williams v. De Boinville, 17 a B. D. 180; 54 L. T. 732 ; 
 
 34 W. E. 702 - - - - - - 57 
 
 Williams v. Ivimey, 23 L. T. 100 - - 206 
 
 Williams v. Mercier, 10 App. Gas. 1 ; 54 L. J. Q. B. 148 ; 
 
 52 L. T. 662 ; 33 W. E. 373 - 379 
 
 Williams v. Price, 1 S. & S. 581 ; 2 L. J. Ch. 105 - - 186 
 Williams v. Eeeves, 12 Ir. Ch. E. 173 - 357 
 
 Williams v. Smith, 14 C. B. N. S. 596 - - - 92 
 
 Williams v. Smith, 2 H. & N. 443 ; 26 L. J. Exch. 371; on 
 
 appeal, 4 H. & N. 559 ; 28 L. J. Exch. 286 - 116 
 
 Williams v. Webb, 2 Dowl. N. S. 904 ; 5 Sc. N. E. 898 ; 
 
 12 L. J. N. S. C. P. 137 - - - 64 
 
 Wilson v. Bates, 3 My. & Cr. 197 ; 7 L. J. Ch. 131 - - 226 
 Wilson v. Church, 11 Ch. D. 576; 48 L. J. Ch. 690; 41 
 
 L. T. 50 ; 27 W. E, 843 - - 42 
 
 E. d
 
 1 TABLE OF CASES. 
 
 PAGE 
 
 Wilson v. Church (No. 2), 12 Ch. D. 454 ; 28 W. E. 284 - 42 
 Wilson v. Dundas, W. N. (1885) 232 ; Bitt. cxii. - - 356 
 
 Wilson v. Metcalfe, 1 Beav. 263 ; 8 L. J. N. S. Ch. 331 - 287, 288 
 Winter v. Mouseley, 2 B. & Aid. 802 - 363 
 
 Wintle v.Chetwynd (Lord), 7 Dowl. 554; 1 W. W. & H. 581 - 138, 
 
 144 
 
 Wintle v. Freeman, 11 A. & E. 539 ; 1 Ga. & Dav. 93 ; 10 
 
 L. J. N. S. Q. B. 161 - - 138 
 
 Wintle v. Williams, 3 H. & N. 288 ; 27 L. J. Exch. 311 ; 6 
 
 W. E. 501 - - - - 355 
 
 Wise v. Beresford, 2 Con. & L. 282- - 203 
 
 Wise v. Birkenshaw, 29 L. J. Exch. 240 ; 36 L. T. 223 ; 8 
 
 W. E. 420 - 355 
 
 Witham v. Bland (1), 3 Swanst. 276 - -283, 290 
 
 Witham v. Lynch, 1 Exch. 391 ; 17 L. J. Exch. 13 - 347 
 
 Withers v. Harris, 2 Ld. Eaym. 806 - - - 51 
 
 Withers v. Henly, 3 Buls. 96 81, 91 
 
 Wood v. Dunn, L. E. 2 Q. B. 73 ; 36 L. J. Q. B. 27 ; 15 
 
 L. T. 411 ; 15 W. E. 180 - - 370 
 
 Wood v. Freeman, 2 Atk. 541 - 293 
 
 Wood v. Vincent, 4 Beav. 419 - - - 335 
 
 Wood v. Wheater, 22 Ch. D. 281 ; 52 L. J. Ch. 144 ; 47 L. T. 
 
 440; 31 W. E. 117 - 99 
 
 Woodall, Ex parte, Ee Woodall, 13 Q. B. D. 479 ; 53 L. J. 
 
 966; 50 L. T. 747 ; 32 W. E. 774 - - - 25 
 
 Woodgate v. Knatchbull, 2 T. E. 148 - 74, 82, 155 
 
 Woodhain, In re, Ex parte Conder, 20 Q. B. D. 40 ; 57 L. J. 
 
 Q. B. 46 ; 58 L. T. 116 ; 36 W. E. 526 - - 160 
 
 Woodland v. Fuller, 11 A. & E. 859; 3 Per. & Dav. 570; 9 
 
 L. J. Q. B. 181 ; 4 Jur. 743 - 70, 121, 259 
 
 Woodman v. Gist, 8 C. & P. 213 ; 1 Jur. 894 63, 74 
 
 Woodward v. Lincoln (Earl of), 3 Swanst. 626 - - - 237 
 
 Woodward v. Twinaine, 9 Sim. 301 ; 9 L. J. N. S. Ch. 52 - 214 
 Woodyeer v. Gresham, Skin. 682 - - 55 
 
 Woolley v. Colman, 21 Ch. D. 169 ; 51 L. J. Ch. 854 ; 46 L. T. 
 
 737 ; 30 W. E. 769 - - - 302 
 
 Wormoll v. Young, 5 B. & C. 660 ; 8 D. & E. 442 ; 4 L. J. 
 
 K. B. 293 - - - - - - 148 
 
 Wormwell v. Hailstone, 6 Bing. 668 - - - 36 
 
 Worral Waterworks Co. v. Lloyd, L. E. 1 C. P. 719 - 176 
 
 Wrench v. Wynne, 38 L. J. Ch. 235 ; 17 W. E. 198 - - 346 
 Wright v. Child, L. E. 1 Ex. 358 ; 35 L. J. Ex. 209 ; 15 L. T. 
 
 141 - - - - - - - 125 
 
 Wright v. Dewes, 1 A. & E. 641 ; 3 Nev. & Man. 790 ; 3 L. J. 
 
 N. S. K. B. 181 139
 
 TABLE OF CASES. H 
 
 PAGE 
 
 Wyggeston Arbitration, Ee, 54 L. J. Q. B. 248 ; 52 L. T. 101 ; 
 33 W. E. 551 - - - - - 240 
 
 Y. 
 
 Yabsley v. Doble, 1 Ld. Eaym. 190 - - - 72 
 
 Yates v. Hambly, 2 Atk. 360 - 185, 186, 194 
 
 Yates v. Eatledge, 5 H. & N. 249 ; 29 L. J. Exch. 117 - - 141 
 Yescombe v. Lander, 28 Beav. 80 ; 28 L. J. Ch. 876 299, 305 
 York v. Twine, Cro. Jac. 78 - - - 130 
 
 Young, Ex parte, Ee Young, 19 Ch. D. 124 ; 51 L. J. Ch. 
 141 ; 45 L. T. 493 ; 30 W. E. 330 - - 29
 
 TABLE OF STATUTES. 
 
 PAGE 
 
 13 Ed. 1, c. 18, West. II. (elegit) - - - - 164 
 
 c. 39, West. IE. (delivery of writ) - n. (i), 79 
 
 c. 45, West. II. (scire facias) - - - 49 
 
 8 Hen. 6, c. 9 (warrant of possession) n. (), 104 
 
 13 Eliz. c. 5 (fraudulent conveyances and sheriff's duty in 
 
 respect thereto) - - 146 
 
 c. 5 (fraudulent conveyances, how affected by 27 
 & 28 Viet. c. 112, s. 1) - - 190 
 
 28 Eliz. c. 4 (poundage) - 156, 193, 255 
 17 Car. 2, c. 8 (signing judgment after verdict and death 
 
 of party) - - 49 
 
 29 Car. 2, c. 3, s. 10 (equitable estates in land) - - 180 
 
 (judicial construction of) - - - 182 
 
 s. 12 (estates pur auter vie) - - 130 
 
 s. 16 (binding effect of fi. fa. on goods) - 114 
 
 8 & 9 Will. 3, c. 11, s. 7 (abatement of action) - - - 48 
 
 8 Anne, c. 14, s. 1 (rent in case of execution) - 140, 141 
 
 3 Geo. 1, c. 15, s. 8 (undersheriff's office continued) - 71 
 
 s. 16 (poundage on elegit} - 193 
 
 (poundage on writ of possession) -n. (m), 107 
 
 11 Geo. 2, c. 19, ss. 8, 9 (growing crops execution) - 139 
 
 20 Geo. 2, c. 37, s. 2 (return within six months of office) - 70 
 
 10 Geo. 3, c. 50, ss. 3, 4 (sale of issues under distringas) n.(), 145 
 39 & 40 Geo. 3, c. 36 (restraining transfer of stock) - 347 
 56 Geo. 3, c. 50 (sale of farming stock) - 125 
 7 Geo. 4, c. 46, s. 13 (scire facias against banker) - 27 
 
 11 Geo. 4 & 1 Will. 4, c. 36, 
 
 s. 2 (imprisonment) - - - - 247 
 
 s. 15, IT. 7, 8 (imprisonment) - 247 
 
 r. 15 (substitutionary performance of order by 
 
 master) - 222 
 
 r. 16 (seizure of books, &c. under sequestra- 
 tion - - 224, 289 
 r. 17 (discharge from custody after seques- 
 tration) - - - 227 
 r. 18 (compulsory discharge) - 228 
 s. 17 (discharge from custody generally) - - 227 
 3 & 4 Will. 4, c. 42, s. 20 (sheriff's duty) [re-enacted].
 
 TABLE OF STATUTES. Hii 
 
 PAGE 
 
 3 & 4 Will. 4, c. 67, s. 2 (return to writs) - - 57 
 
 c. 99, s. 7 (return to writs) [re-enacted]. 
 
 7 Will. 4 & 1 Viet. c. 55 (sheriff's fees) - - 158 
 
 s. 4 (discretion as to costs of ap- 
 plication against sheriff) n. (i), 161 
 
 1 & 2 Viet. c. 110 (abolition of arrest on mesne process) 4, 13 
 
 s. 11 (elegit) - 165, 177 
 
 (elegit, effect of on accounting) -n. (t), 185 
 (elegit, lands extendible under) - 171 
 (elegit, effect of registration on) - 189 
 (elegit, " disposing power" under) - 179 
 (elegit, equitable estates in land) - 181 
 (elegit, no effect on remainder) - - 178 
 s. 12 (cheques, bills, notes, &c. seizable 
 
 under fi. fa.) - - 131,347 
 
 s. 13 (judgment as a charge over land) - 303 
 (judgment, no charge over ecclesi- 
 astical benefice) - n. (e), 207 
 (judgment, effect of, on estates tail 
 
 taken under elegit) - 176 
 
 (" disposing power" under) - - 179 
 
 s. 14 (charging orders over stock) - 332 
 
 s. 15 (procedure to obtain charging order) 333 
 
 s. 1 6 (no charge over land for debt after 
 
 ca. sa.) - n. (c), 225 
 
 s. 18 (decrees for payment of money to 
 
 have effect of judgments) - 8, 217 
 
 s. 19 (registration of judgments) 9, 305, 327 
 s. 20 (rules as to writ of execution) - 217 
 
 2 & 3 Viet. c. 11 (registration) - - - 328 
 
 c. 39 (writ of summons) - - 19 
 
 3 & 4 Viet. c. 82, s. 1 (sect. 14, 1 & 2 Viet. c. 110, ex- 
 
 tended) - 333, 346 
 
 s. 2 (registration) - - 328 
 
 5 Viet. c. 5 (restraining transfer of stock) - - 347 
 
 7 & 8 Viet. c. 96, s. 67 (payment of rent to landlords on less 
 than yearly tenancies) - n. (d), 140 
 
 8 Viet. c. 16, s. 36 (scire facias against shareholder in company) 27 
 8 & 9 Viet. c. 11, s. 7 (scire/aa'as on death after judgment)-n. (o),27 
 
 c. 106, s. 3 (assignment of leaseholds by deed)- n. (o), 129 
 c. 127, s. 8 (bedding and tools, up to 51., exempted 
 from execution) - - - 119 
 
 12 & 13 Viet. c. 67, s. 1 (power of sequestrator de bon. eccles. 
 
 to sue) - - - - - - - 205 
 
 13 & 14 Viet. c. 60 (Trustee Act, 1850) - - - 222
 
 v TABLE OF STATUTES. 
 
 PAGE 
 
 14 & 15 Viet. c. 25, s. 2 (growing crops, execution) - - 139 
 
 15 & 16 Viet. c. 55 (Trustee Act, 1852) - 14, 222 
 
 c. 76 ss. 124, 125 (duration of writ) - - 46 
 s. 128 (acire facias on judgment) - 44 
 
 s. 136 (abatement of action, none where 
 
 cause of action survives) - - 48 
 
 c. 80, s. 36 (powers of M. E. and V.-O.) - 222 
 
 c. 86 (Chancery Procedure Act, 1852) - 49 
 
 s. 48 (sale of land in redemption) - 302 
 
 17 & 18 Viet. c. 104, s. 50 (no execution against ship away 
 
 from port) - - 128 
 
 s. 92 (inspection of registry of ships)-n. (e)127 
 s. 233 (seaman's wages) - 364 
 
 c. 125, ss. 60 67 (Common Law Procedure 
 
 Act, 1854, garnishee proceedings) - 350 
 s. 78 (writ of delivery) - - - 196 
 
 s. 91 (scire facias] - - n. (M), 26 
 
 18 Viet. c. 15, s. 4 (registration of judgments) - - 328 
 
 19 & 20 Viet. c. 97, s. 1 (Merc. Law Amend. Act,1856 ^ fi.fa.) 115 
 
 s. 2 (delivery of chattels detinue) - 196 
 
 23 & 24 Viet. c. 38, e. 1 (registration of judgment and exe- 
 
 cution) - - 190, 328 
 
 c. 126, s. 33 (sequestration and attachment 
 against corporation) - n. (#), 233 
 
 24 & 25 Viet. c. 134, s. 74 (Bankruptcy Act, 1861 sale 
 
 under fi. fa.) - 124 
 
 25 & 26 Viet. c. 89, ss. 85, 87, 163 (Companies Act, 1862 
 
 execution against company in winding-up) 41, 
 
 359 
 c. 104, s. 10 (appointment of tipstaffs) - - 262 
 
 27 & 28 Viet. c. 112, s. 1 (delivery in execution equitable 
 
 execution) - - 299, 307 
 
 (delivery of land in execution) - 177 
 
 (effect of, on 1 & 2 Vict.c. 110, s. 11) 189 
 
 (effectof, on 1 & 2 Viet. c. 110, s. 13) 307 
 
 s. 3 (registration) - - 191, 328 
 
 s. 4 (sale of land on petition) - 191, 300 
 
 (sale of land under sequestration, 
 
 none) - - 285 
 
 s. 5 (creditors' rights under petition) - 300 
 
 28 & 29 Viet. c. 73, s. 4 (assignment of pay of naval officers 
 
 prohibited) - 367, 368 
 
 s. 5 (assignment of pay of seamen pro- 
 hibited) - 367 
 c. 126, ss. 67, 126 (prisoners under attachment) 247
 
 TABLE OF STATUTES. IV 
 
 PAGE 
 
 32 & 33 Viet. c. 62, s. 4 (imprisonment for debt) - 218, 226 
 
 (no effect as to judgment for land) 220 
 8. 5 (committal for non-payment) - 255 
 
 33 & 34 Viet. c. 30 (Wages Protection Act, 1870) - - 364 
 
 c. 35 (Apportionment Act, 1870) - - 364 
 
 c. 93 (Married Women's Property Act, 1870) - 375 
 8. 1 (separate property) - - 382 
 
 s. 7 (property devolving under deed or 
 
 will) - - - - 382 
 
 s. 8 (property descending) - - 382 
 
 34 & 35 Viet. c. 43 (Ecclesiastical Dilapidations Act, 1871) - 205 
 
 c. 44, s. 10 (pensions to retiring clerks in- 
 alienable) - 368 
 c. 45 (Sequestration Act, 1871) - - - 205 
 s. 5 (inhibition of incumbent) - - 206 
 s. 7 (no amotion during sequestration) - 206 
 37 & 38 Viet. c. 50 (Married Women's Property Act, 1874) - 382 
 ss. 1, 2 (limitation of husband's liability 
 
 for wife's debts) - - - 25 
 
 c. 57, s. 8 (limitation of execution as to time 
 
 judgment) - 44 
 
 40 & 41 Viet. c. 21, s. 39 (communication with prisoner 
 
 under attachment) - - 247 
 
 ss. 41, 57 (prisoners under attachment) - 247 
 
 41 & 42 Viet. c. 31 (Bills of Sale Act, 1878) - - - 149 
 
 8. 4 (definition of bills of sale) - - 149 
 
 (apparent possession) - 122, 151 
 
 s. 8 (execution void against unregistered 
 
 bill of sale) - - - - 150 
 
 c. 54 (Debtors Act, 1878, giving discretion 
 
 to the Court) - - 219 
 
 42 & 43 Viet. c. 59, Schedule (repeal) - - 57, 145, 227 
 
 43 & 44 Viet. c. 19, s. 88 (payment of taxes under execution) 142 
 
 44 & 45 Viet. c. 41, s. 25 (sale in foreclosure or redemption) 175, 
 
 301, 348 
 
 c. 58, s. 141 (assignment of pay prohibited) 366, 368 
 c. 68, s. 20 (Judicature Act, 1881 tipstaffs) - 262 
 
 45 & 46 Viet. c. 38, s. 2, sub-ss. (5) and (7) (sale of settled 
 
 land) - - 176, 177 
 
 s. 50, sub-s. (3) (protection of assignee 
 
 for value) - - - 177 
 
 c. 43 (Bills of Sale Act, 1882) - - - 151 
 
 c. 75 (Married Women's Property Act, 1882) - 383 
 
 s. 1 , sub-s. (1) (capacity to own property) 383 
 
 sub-s. (2) (capacity and liability as 
 
 to contracts and torts) - - 385
 
 Ivi TABLE OF STATUTES. 
 
 PAGE 
 
 45 & 46 Viet. c. 75, s. 1, sub-s. (4) (subsequently acquired 
 
 property) - 387 
 
 s. 14 (liability of husband) - - 26, 389 
 
 s. 15 (judgment against husband and 
 wife) - - - - - 389 
 
 s. 19 (restraint on anticipation) - - 388 
 s. 24 (married woman trustee) - - 390 
 
 s. 25 (commencement of Act) - 25 
 
 46 & 47 Viet. c. 49 (repeal) - 196, n. (g) 233, 350 
 
 c. 52 (Bankruptcy Act, 1883, effect of, on exe- 
 cution under./?. /.) - - 152 
 s. 4 (1) (act of bankruptcy by seizure 
 
 and sale) - - - 152 
 
 sub-s. 1 (g) (garnishee order not 
 
 final within) - - n. (/), 354 
 
 s. 30 (discharge of bankrupt) - - 291 
 
 s. 44 (" order and disposition," effect of 
 
 fi. fa. on) - - 122 
 
 s. 45 (1) (execution to be completed be- 
 fore bankruptcy) - - - 152 
 (2) (completion of execution) 152, 290 
 s. 46 (1) (notice to sheriff of receiving 
 
 order) - 153 
 
 (sheriff's expenses of execution) 160 
 (2) (retention of proceeds by sheriff 
 
 for fourteen days) - 153, 290 
 
 s. 52 (sequestration of benefice on bank- 
 ruptcy of clergyman) - 203 
 s. 103 (bankruptcy transfer of j urisdic- 
 
 tion Debtors Act) - - 266 
 
 s. 145 (mode of sale under execution 
 
 over20Z.) - - - 124 
 
 (expenses of execution) - - 160 
 
 s. 146 (\)(elegit does not affect goods) 166,192 
 
 s. 168 (" sheriff" includes any officer of 
 
 execution) - - - n. (e), 153 
 
 47 & 48 Viet. c. 44, s. 2 (extension of 28 & 29 Viet. c. 73, s. 5) 367 
 
 c. 61, s. 14 (Judicature Act, 1884 substitu- 
 
 tionary execution) - - 223 
 
 50 & 51 Viet. c. 55 (Sheriffs Act, 1887. See Appendix n.) 455
 
 TABLE OF RULES AND ORDERS OF 
 THE SUPREME COURT. 
 
 PAGE 
 
 O. XIII. r. 5 (interlocutory judgment for detention) - 197 
 
 O. XVII. r. 1 (change of parties by death, &c.) - 50 
 
 r. 4 (power to add parties where necessary) - 53 
 
 O. XIX. r. 3 (counterclaim) - 371 
 
 O. XXVI. r. 4 (costs of discontinuance, fi. fa.) - - 112 
 
 0. XXXI. r. 11 (attachment, interrogatories) - - 233 
 
 r. 22 (personal service of order for discovery 
 
 not necessary) - 237 
 
 r. 31 (attachment, discovery) - - - 233 
 
 O. XLI. r. 1 (entry of judgments and orders) - 30, 233 
 
 r. 5 (application of, to sequestration) - - 275 
 
 (indorsement of orders to perform some 
 
 act) - - 234, 238 
 
 0. XLIL (execution generally) - - - 19 
 
 r. 1 (demand before execution not necessary) 21 
 
 r. 2 (conditional judgment, waiver) - - 21 
 
 r. 3 (enforcement of judgment for money, and 
 
 its construction) - - - 11 
 
 r. 4 (sequestration or attachment in default of 
 
 payment into Court) 232, 273 
 
 r. 5 (writ of possession) - - - 93 
 
 r. 6 (recovery of property other than land or 
 money) 
 
 (a) (writ of delivery) - 195, 232 
 
 (b) (writ of attachment) - - 232 
 
 (c) (writ of sequestration) - 232, 273 
 r. 7 (committal and attachment) - 232, 257 
 r. 8 (definition of writ of execution) - 20, 47, 100, 
 
 234, 273 
 
 r. 9 (execution on conditional judgment) - 22 
 r. 10 (effect of, on rules as to correspondence 
 
 of writ and record) - - - 35 
 
 (execution against a firm) - - 27 
 
 E. e
 
 Iviii TABLE OF RULES AND ORDERS 
 
 O. XLII. r. 11 (officer's duty under) 30, 35, 100 
 
 r. 12 (praecipe for writ of execution) 31, 33, 100 
 r. 13 (indorsement of address on writ of 
 
 execution) - 31, 100 
 
 r. 14 (date and form of writ) - - 32 
 
 r. 15 (levying costs of execution) - 151,194 
 r. 16 (indorsement on writ of execution as to 
 
 sum to be levied) - - - 32 
 
 r. 17 (a) (fi. fa. and elegit issuable) - 108, 167 
 
 (b) (staying execution) - 39 
 
 r. 18 (separate execution for costs) - 109, 111, 187 
 
 r. 19 (fourteen days to issue execution except 
 
 for land or money) - 47, 234 
 
 r. 20 (construction of) - - 58 
 
 (renewal of writ of execution) - - 45 
 
 r. 21 (evidence of renewal) - 46 
 
 r. 22 (execution may issue within six years) - 43 
 r. 23 (leave to issue execution) - - 24, 50 
 
 (a) (change of parties generally, and 
 
 after six years) - - 24, 44, 50 
 
 (b) (husband entitled or liable to execu- 
 
 tion) - - - 25 
 
 (c) (execution on judgment of assets in 
 
 futuro) - - - - 26 
 
 (d) (execution against member of joint 
 
 stock company) - - - 27 
 
 r. 24 (order to be enforced as judgment) - 20, 35 
 r. 26 (execution by persons other than parties) - 29 
 r. 27 (audita querela abolished) - - 40 
 
 r. 28 (0. XLII. not exhaustive) - 19, n. ( p) 47, 
 
 109, 249 
 
 r. 29 (order of writs of execution) - 47, 108, 234 
 r. 30 (plaintiff carrying mandamus, &c., into 
 
 effect)- - - - ' - 223 
 
 r. 31 (sequestration against corporation, or 
 
 attachment against officers) - 232, 273 
 r. 32 (discovery in aid of execution) - 64, 352, 355 
 r. 33 (discovery in aid on judgments not for 
 
 money) - 66 
 
 r. 34 (costs on order for discovery) - 66 
 
 O. XLIII. r. 1 (force of fi. fa. and elegit) - 110, 169 
 
 r. 2 (venditioni exponas) - - - 143 
 
 r. 3 (writs against beneficed clerks) - - 200 
 
 r. 4 (execution of writs against clerks) - - 200 
 r. 5 (writs in aid of fi. fa. or elegit} - - 143
 
 OF THE SUPREME COURT. Hx 
 
 PAGE 
 
 O. XLTTT. r. 6 (payment into Court, sequestration) 273, 275 
 
 r. 7 (no subpoena for costs sequestration) - 274 
 
 O. XLIV. r. 1 (effect of writ of attachment) - - 244 
 
 r. 2 (leave to issue attachment) - 230, 239, 240, 
 
 241, 265 
 O. XLV. Attachment of debts, Book HI. Chap. HE. 
 
 r. 1 (garnishee orders) - - 350 
 
 r. 2 (service and effect of garnishee order) - 353, 369 
 r. 3 (enforcing garnishee order) - - 353 
 
 r. 4 (trial of question of garnishee's liability) - 354 
 r. 5 (order for third person to appear) - - 362 
 r. 6 (proceedings as to claim of third person) - 362 
 r. 7 (discharge of garnishee) - - 370 
 
 r. 8 (debt attachment book) - - 373 
 
 r. 9 (costs of garnishee proceedings) - - 374 
 
 O. XLVI. r. 1 (charging orders) - - - 332 
 
 r. 2 (notice in lieu of distringas) - 347 
 
 O. XL VII. r. 1 (judgment that A. do recover possession) 93 
 r. 2 (judgment that A. do deliver posses- 
 sion) - - 93, 98 
 r. 3 (fi. fa. for costs after possession) - - 111 
 O. XLVIH. r. 1 (writ of delivery) 96, n. (g) 197 
 r. 2 (separate execution for costs after delivery)-! 1 1 , 
 
 197 
 
 O. L. r. 15A (appointment of receivers) - - - 313 
 
 O. LII. r. 1 (application to the Court to be by motion) - 231 
 r. 2 (rules nisi and absolute abrogated) - - 231 
 r. 4 (does not apply to sequestration) - - 272 
 
 (notice of motion for writ of attachment) - 240 
 r. 11 (notice to return writ) - 63, n. (TO) 201 
 r. 14 (order for leave need not be drawn up) - 23 
 0. LIV. r. 1 (application in chambers to be by sum- 
 mons) - - 231 
 LV. r. 15 \ 
 
 r. 16 > (powers and duties of chief clerks) - 281 
 
 r. 17 ) 
 
 r. IOA (originating summons in foreclosure 
 
 and redemption) - - - 303 
 
 0. LVIII. r. 16 (stay of execution on appeal) - - 41 
 
 r. 17 (application where made for a stay on 
 
 appeal) - - 41 
 
 O. LIX. r. 14 (no stay on appeal from an inferior 
 
 Court) - - - - 43 
 
 0. LXIV. r. 13 (proceeding after one year's delay) - 44
 
 IX ' TABLE OF RULES AND ORDERS, ETC. 
 
 PAGE 
 
 0. LXV. r. 1 (discretion as to costs) - - 244 
 
 (does not interfere with right of poundage) 156 
 O. LXVI. r. 7 (copies of affidavits to be paid for) - n. (i), 240 
 0. LXVIL r. 1 (service of office copy order, except to 
 
 found attachment, sufficient) - - 237 
 
 r. 6 (substituted service) - 238, 259 
 
 0. LXX. r. 1 (notice of motion on attachment) - - 240 
 
 r. 2 (setting aside proceedings for irregularity) 252 
 
 r. 3 (motion to set aside proceedings) - - 252
 
 THE 
 
 INTRODUCTION. 
 
 THE subject of this work is of an eminently practical 
 character. We propose to consider those rules of pro- 
 cedure and practice which are applicable to the rights of 
 parties to litigation after the decision of the Court has 
 been pronounced. Decisions of the Court are various in 
 kind, both in respect of the subject-matter with which they 
 deal, and of the form in which they are expressed. The 
 methods of enforcing these decisions correspond with them ; 
 and it thus becomes essential that the different kinds of 
 decisions should, at the least, be indicated, so as to form a 
 basis for the classification or arrangement of our subject. 
 We propose that this indication should be set forth in our 
 Introductory Chapter, so that the theoretical meaning and 
 effect of a judicial decision should be separated as far as 
 possible from the practical methods adopted for enforcing 
 it. To keep our path, without unnecessary trespassing 
 upon the field of the jurisprudent on the one hand, or of the 
 mere historian on the other, is a task of some difficulty. 
 If, therefore, this part of our work appears to be meagre, 
 and our conclusions unwarranted by the facts to which we 
 refer, we demand that consideration which the limits of 
 the space at our command justify us in asking. 
 
 The Courts, which were by the Judicature Acts united Courts of 
 and consolidated together, did not aim at attaining the 
 
 E. B
 
 LAW OF EXECUTION. 
 
 The action at 
 common law. 
 
 The writ and 
 record. 
 
 Judgment at 
 law, what 
 it is. 
 
 same objects by the decisions which they pronounced. 
 The Courts of common law were concerned with questions 
 and rights which, by their constitution, courts of equity 
 could not entertain. The courts of equity gave relief on 
 grounds and principles of which the courts of law knew 
 nothing. The theory of the jurisdiction and the methods 
 of enforcing it were in each case distinct. 
 
 The writ by which all actions were begun was the theo- 
 retical basis of the jurisdiction of the Courts of common 
 law (a) . The power of the judges, derived by commission 
 from the sovereign, was limited by the terms of that com- 
 mission to deciding (so far as civil proceedings were 
 concerned) upon the litigation formally instituted before 
 them by means of writs. The Court had to consider 
 whether the facts proved before it, and stated upon the 
 record by the writ and subsequent proceedings, entitled 
 the plaintiff to the property he claimed. For the writs 
 were always (b) limited in form, and every writ raised 
 only a question of right in the plaintiff to certain tangible 
 property, whether in the form of land or money. The 
 judgment of the Court established or denied this right. 
 
 This true nature of judgments at law is recognised by 
 the highest authority: 
 
 "Judgment. Judicium, quasi juris dictum, the very voice 
 of law and right, and therefore judicium semper pro veritate 
 accipitur. The ancient words of judgment are very sig- 
 nificant, Consideration est, &c., because that judgment is 
 ever given upon a due consideration of the record before 
 them"(c). 
 
 We find also : " A man by his judgment authenticated 
 his debt, and it gave an authority to the party to sue his 
 execution within a year and a day " (d). 
 
 (a) Perhaps historically this is (5) Even after the Statute of 
 
 not quite correct, that is to say, Consimili cam. 
 
 correct without considerable expla- (c) Co. Lit. 39 a. Recuperatur is 
 
 nation of the way in which the another form of commencement, 
 
 writ became of such great import- (d) Gilb. on Execution, 10. 
 ance.
 
 INTRODUCTION. 3 
 
 More recently, (e) " A judgment at common law in an 
 action for money, irrespective of any statute, is nothing 
 more than a sentence of a Court of law, declaring the 
 opinion of the Court that the plaintiff is entitled to re- 
 cover a sum of money. That is the nature of a judgment, 
 and execution upon it is merely the process of the Court 
 causing the money to be raised out of the defendant's 
 property "(/). 
 
 The form Consideration est was followed until recently. Considcratum 
 
 est. 
 
 A judgment at law contained a full recital of the plead- 
 ings in the action, then invariably there followed the 
 words " therefore it is considered that the said plaintiff 
 A. B. do recover against the said defendant C. D " the 
 damages or land the subject of the proceedings (g}. The 
 modern form, instead of " It is considered, &c.," runs " It Itis adjudged. 
 is adjudged, &c." (h). 
 
 In a proper and technical sense, therefore, a judgment 
 of the Courts of common law was not a command, enjoining 
 obedience on the persons whom it affected. Such was 
 never the true view in which it was regarded. Further, 
 it fulfilled the essentials of a command, in substance no 
 more than in form. The verdict and consequent entering 
 of the judgment by the judge were not adapted to express 
 a direction involving a personal sanction upon any indi- 
 vidual. The judges had no power by virtue of their 
 office to order the performance of, or abstention from, any 
 act. The parties to actions before them did not have 
 recourse to the tribunal with the aim of obtaining any 
 such relief. 
 
 The subject of dispute at law was always the right to 
 estates in land or to money (i). In short, judgments at 
 
 (e) See judgment of Lord Redes- Tidd's Practice, pp. 190 et seq., 632 
 
 dale, East India Co. v. Eynaston, 3 et seq. 
 
 Bli. 153. (h] See Chitty's Forms, 12th ed. 
 
 (/) Vice- Chancellor Kindersley, 376 et seq. 
 
 in Sondv. Sell, 4 Drew. 157. (i) The action of replevin, with 
 
 (g) See, for example, the forms, the remedy provided thereon, is 
 
 B2
 
 LAW OF EXECUTION. 
 
 General 
 nature of exe- 
 cution at law, 
 
 Arrest on 
 mesne process. 
 
 The capias ad 
 respondendum. 
 
 Capias ad 
 satisfaciendum. 
 
 common law were decisions relating merely to property, 
 and its transfer from the possession of one person to the 
 possession of another (k). 
 
 Such being the true meaning and effect of the judgment, 
 it was enforced by strictly appropriate methods. Under 
 the directions contained in writs (known as judicial writs), 
 officers of the Court carried out the judgment by trans- 
 ferring the property, which was the subject-matter of it, 
 from the unsuccessful to the successful party. 
 
 It is true that prior to the act 1 & 2 Yict. c. 110, and for 
 purposes of compelling appearance, the most stringent 
 measures might be and were taken against defendants 
 personally. Arrest on mesne process, which to the curious 
 is an interesting study, was resorted to in ordinary actions. 
 This right to arrest a defendant before judgment, under a 
 writ of capias ad respondendum, to answer the plaintiff's 
 claim, was given by certain statutes. In all cases where this 
 writ was issuable before judgment, a writ of capias ad 
 satisfaciendum, to enforce the payment of a sum thereby 
 found to be due, also lay. This writ was theoretically no 
 consequence of the judgment at all, and was entirely 
 dependent upon the construction of certain statutes (/) . 
 
 nothing more than an apparent 
 exception . The writ enforcing the 
 judgment was directed to the sheriff, 
 the judgment being in the ordinary 
 form. 
 
 (K) Austin proposed to deal with 
 the subject of execution to some 
 extent under the heading : ' ' Judg- 
 ments considered as modes of ac- 
 quisition, that is to say, not merely 
 as instruments by which rights of 
 action are enforced, but as causes 
 of ulterior rights: e.g., as causes of 
 liens or tacit mortgages given to 
 plaintiffs on lands and moveables 
 of defendants." Jurisp. vol. i. 
 ed. 1861, p. ciii. Lord Chief Baron 
 Gilbert (Executions, p. 2) says, 
 that the King's Court immediately 
 
 altered the property ; but, with all 
 submission, it cannot be said with 
 truth that a judgment at law, apart 
 from statute, was ever a mode of 
 acquisition. The judgment pre- 
 sumed that the right to the subject- 
 matter in dispute was older than 
 the action itself, and pretended to 
 be merely a judicial authentication 
 of that fact. In the case of land, 
 this view was altered by the con- 
 struction placed upon the Statute 
 of Elegit, for there, as will be seen, 
 rights over the defendant's land 
 were acquired by means of the 
 judgment itself. Vide infra, p. 188. 
 (/) Tidd's Pr. 128, 1025. See 
 Cassidy v. Stuart, 2 So. N. R. 432 ; ' 
 White v. Hayward, 2 Ves. Sen. 461.
 
 INTRODUCTION. 5 
 
 It is not proposed in this work to discuss the writ of 
 ca. sa., for the reason that its stringent remedy is, since the 
 Debtors Act, 1869, available only in the cases of Crown 
 debts, and perhaps of such penalties as are excepted from 
 the operation of the statute (tn). 
 
 Besides the judgment which was sought by the litigants Proceedings 
 in an action, there were other proceedings which could be k^ 16 ^"*' 
 taken against officers of the Court and certain other classes lute, and -writ 
 of persons (). These proceedings were taken by rule or 
 order nisi. A. rule or order nisi called upon the person 
 to whom it was addressed to appear before the Court, and 
 show cause or reason why the rule or order should not be 
 made absolute. These were originally the only interlocu- 
 tory proceedings which could be taken in the course of an 
 action at law. They were auxiliary only to the purpose 
 of the action, and had nothing directly to do with the 
 judgment or decision arrived at. A rule, in fact, has 
 never been a part of the record (0). Besides the officers 
 of the Court and those persons against whom a rule 
 nisi and absolute could always be made, other parties 
 might be affected thereby. It was always open, for 
 example, to the parties before the Court to submit to an 
 order embodying the effect of any agreement entered into 
 between them. The agreement could then be made a 
 rule of court, of which disobedience was a contempt (p). 
 Undoubtedly, the effect of a rule of court, when made 
 absolute, was that of a direct command. Where it was 
 disobeyed, the disobedience was a contempt, punishable by 
 attachment of the person. The writ of attachment, by 
 which the process was effectuated, issued only after a rule 
 
 (m) Sect. 4. refer to arbitration, but any agree- 
 
 () Tidd's Pr. 478. See Arch. ment in an action might be made 
 
 Ch. Pr. 944. a rule of court, and summary 
 
 (o) Tidd's Pr. 490. See Neicton process taken to enforce it. See, for 
 
 v. Boodle, 6 C. B. 532 ; 18 L. J. an instance, an undertaking to re- 
 
 C. P. 73. instate a wall which had been 
 
 (p) The most frequent example pulled down. Dodington v. Hud- 
 
 of this practice is an agreement to son, 8 Moore, 510.
 
 LAW OF EXECUTION. 
 
 Interroga- 
 tories. 
 
 Theory of 
 equitable de- 
 crees. 
 
 Decrees in 
 equity. 
 
 nisi for the specific purpose of showing cause why it should 
 not issue had been made absolute, except in the one case 
 where the contempt was committed in the face of the 
 Court itself (q) . All rules nisi and absolute are open to 
 the observation, that they are not judgments in the sense 
 of being decisions to obtain which the parties before the 
 Court were litigating, but merely ancillary thereto. 
 Further, the Courts of common law had power to ad- 
 minister interrogatories, but this power was not a part of 
 their ordinary and usual process (r). 
 
 In equity, no such basis of jurisdiction as a writ was 
 required, the bill of complaint or petition which commenced 
 proceedings being theoretically a petition to the fountain 
 of justice, the sovereign himself. The question to be 
 decided in a suit was not the right of the plaintiff to such 
 or such property; machinery for trying that question was, 
 as we have seen, already to hand in the Courts of common 
 law. The real question to be decided, on the contrary, 
 was whether relief should be granted to the plaintiff, by 
 constraining the person of the defendant to do or abstain 
 from doing some act. The question of right or title was 
 not for decision by the equity tribunals. 
 
 The decision itself was called a decree. This decree, 
 unlike a judgment, was distinctly regarded as a command. 
 The order or direction contained in it was not addressed to 
 the fact that such and such had been ascertained to be the 
 rights of the parties, but set forth in terms what was to be 
 done by one or other or both of them (s). 
 
 (q) Blackstone observes upon the infra. 
 
 species of attachment by rule, 
 " Indeed, the attachment for most 
 of these species of contempt, and 
 specially for non-payment of costs 
 and non-performance of awards, is 
 to be looked upon rather as a civil 
 execution for the benefit of the 
 party injured." 4 Comm. ed. 1876, 
 p. 296. From this point of view 
 the subject will be considered, 
 
 (r) " It cannot have escaped the 
 attention of the reader that this 
 method of making the defendant 
 answer upon oath to a criminal 
 charge is not agreeable to the 
 genius of the common law in any 
 other instance." 4 Black. Comm. 
 ed. 1876, p. 298 ; Tidd's Pr. 481. 
 
 (*) Following from this is the 
 power of the Court of equity to
 
 INTRODUCTION. 
 
 In the words of Lord Ellesmere : " Note that a decree Nature of a 
 in chancery doth not bind the right of the party, but 
 [not ()] only his person to obedience ; that if he will not 
 obey, the chancellor may commit him to ward untill he do 
 obey, and that is all which the chancellor may doe ; but 
 judgment given in the King's Court, Common Pleas, 
 and other Courts of the common law, do bind the right of 
 the party " (u). 
 
 The presumption at common law was that, by the deci- Comparison of 
 sion, the rights of the party, the substantive question upon ^ecree eat ^ 
 which the judges were asked to adjudicate, would be 
 ascertained. The presumption in chancery was that the 
 person was bound to fulfil the obligation imposed upon 
 him by the decree, and that the decree had in itself 
 nothing directly to do with the rights which might have 
 formed the subject-matter of the dispute (x). 
 
 Suits in equity were of course not confined to matters of Nature of 
 purely personal obligation, that is to say, to matters of r^pectto 
 conscience or duty alone. On the contrary, the bulk of property, 
 the cases coming before the Court were in respect of relief 
 relating to property in the hands, or which ought to have 
 been in the hands, of one or other of the parties. The 
 decree obtained in these cases was addressed to the per- 
 formance of the duty in connection with the particular 
 property in question. Distinct rights in equity came in 
 consequence to be recognized with respect to land and 
 things which, at the same time, were the subjects of entirely 
 
 mould its decrees. Their conse- (x) This is well illustrated by the . 
 quent "pliability," as compared jurisdiction exercised of restraining 
 with judgments at law, has been persons by injunction from pro- 
 referred to as one powerful reason ceeding to enforce their rights at 
 why the Court of Chancery ab- law, for the Court of Chancery did 
 sorbed so much business. 1 Sp. not attempt or profess to decide 
 Eq. Jur. 390. the legal rights of the parties, but 
 
 (t) The word "not" is in the restrained them on principles of 
 
 original evidently misplaced here, equity, without deciding whether 
 
 it should appear as in the text. those rights which were claimed 
 
 (u) Ld. ELLesmere's Treatise, 62. existed or not. 
 See also 1 Sp. Eq. Jur. 391.
 
 8 LAW OF EXECUTION. 
 
 antagonistic rights at law. But notwithstanding this re- 
 cognition of equitable property, the theory of the jurisdic- 
 tion was strictly maintained, and the primary method of 
 enforcing the decree was always by process directed against 
 Execution. the person. It was originally only if the party, in dis- 
 obedience to the decree, stood out and refused to be compelled 
 to obey by the personal process issued against him, that 
 recourse was had to his property. In some cases, the 
 specific or particular property in respect of which the 
 interference of the court had been invoked was made 
 available for this purpose, in others the property of the 
 disobedient person was taken possession of to constrain 
 him(y). 
 
 Illustration of A remarkable illustration of the strictness with which 
 personam 9 , execution against property in specie, whether land or 
 Sequestration, chattels, was regarded only as the secondary method of 
 execution, is to be found in the case of sequestration. 
 Where a person was so contumacious that he would not 
 obey the decree of the Court, and stood out his contempt 
 after being imprisoned, persons called sequestrators were 
 appointed, who, authorized by writ, entered into posses- 
 sion of the whole of his property, and seized the rents and 
 profits thereof. Yet even where sequestration was put in 
 force in respect of disobedience to a decree to pay money, 
 the proceeds of the sequestration could not originally be 
 applied to the satisfaction of the sum due (z). 
 
 Application of The nature of execution in equity being thus in its 
 
 executionTo origin strictly personal, it followed that the methods 
 
 decrees. resorted to at law to enforce judgments were not available 
 
 for decrees. The converse was also true, that no process of 
 
 execution known to the Court of Chancery could at the 
 
 beginning of this reign be applied to legal judgments. 
 
 However, by sect. 18 of 1 & 2 Yict. c. 110, decrees and 
 
 (y) For instances of this proce- Coke as damnable, and great oppo- 
 
 dure, see 1 Sp. Eq. Jur. 392. These eition was shown to them by the 
 
 methods of proceeding against pro- common lawyers, 
 
 perty were characterised by Lord (z) Dan. Ch. Pr. 6th ed. 909.
 
 INTRODUCTION. 9 
 
 orders in chancery were given the force and effect of 
 judgments ; and by sect. 19, and the rules of court made 
 thereunder, the issue of writs of fi. fa. and elegit, both 
 strictly legal remedies, was authorized to enforce decrees 
 for the payment of money. An important effect of this 
 enactment is that, since its passing, the practice which 
 formerly existed in chancery, of exhausting process by 
 contempt or personal process before having recourse to the 
 property of the defaulting party, has been considerably 
 modified. Judgments at law were left untouched by the 
 statute, and no method of enforcing them by constraining 
 the person was given, nor could such a result have followed 
 without altering the whole nature of the judgment itself. 
 
 Where disputes arose in chancery respecting the enjoy- Jurisdiction 
 ment or equitable ownership of property, the Court p*^er^ f r 
 frequently by interlocutory order took steps for its preser- property in 
 vation until the case could be heard or the decree obeyed. 
 Courts of common law could not entertain any application 
 for an order of the like nature, because they recognized 
 only that certain rights in property existed, and that such 
 were sanctioned or authenticated by their judgments. 
 
 The jurisdiction exercised by the chancellors in this Eeceivere. 
 particular took the form of appointing some responsible 
 person as an officer of the Court, and he, subject to such 
 directions as were given him by order of the Court, 
 held the property in medio between the parties. It will be 
 seen that this power of nominating persons as receivers 
 has been turned to good account in the modern practice 
 for enforcing judgments and orders. 
 
 The interlocutory decisions which were given in courts Interlocutory 
 of equity were called orders. They were made for the 
 purpose of obtaining evidence, or of bringing compulsorily absolute, 
 before the Court all parties having claims in any given 
 matter (a), or, as we have stated, of protecting the rights 
 of the parties till the suit was ripe for decision. In this 
 
 (a) 1 Sp. Eq. Jur. 390.
 
 10 
 
 LAW OF EXECUTION. 
 
 Judicature 
 Act. 
 
 Use of term 
 " judgment" 
 in this work. 
 
 respect, that they were ancillary merely to the main 
 object of the proceedings, they resembled rules nisi and 
 absolute at common law. The similarity did not end here, 
 for, as will be seen, the remedies for disobedience to the 
 rule absolute and to the interlocutory order were for many 
 purposes identical. At the present time nearly the whole 
 procedure by rule nisi and absolute is done away with, and 
 all interlocutory process assimilated to form the modern 
 interlocutory order. 
 
 The tribunals which formerly administered common law 
 and equity were by the Judicature Act united and consoli- 
 dated together. By that act the Supreme Court of Judi- 
 cature was constituted, consisting of two great divisions 
 the Court of Appeal and the High Court of Justice. 
 Every judge of the High Court is endowed with equal 
 jurisdiction, and in him are combined the functions and 
 offices of the various judges of the constituent Courts (6). 
 The powers of the lords justices of the Court of Appeal 
 differ only in the duty imposed upon them of hearing 
 appeals from the High Court. The effect of the judgment 
 or order pronounced is not altered by the act, and in every 
 cause coming before the courts the nature of the relief 
 granted depends entirely upon the particular kind of- judg- 
 ment or order to which the person seeking redress is 
 entitled. 
 
 By the interpretation clause of the Judicature Act, 
 1873 (c), "judgment" shall include decree, unless in the 
 subject or context of the Act there is anything repugnant 
 thereto. We shall adhere to this nomenclature, and use 
 the phrase "judgment or order" to express all final 
 and interlocutory orders of the High Court. It must, 
 however, be borne in mind, that the essential difference 
 between a judgment and a decree, above pointed out, is 
 
 (*) See, for the nature of the 
 jurisdiction of every judge, Pinncyv. 
 Hunt, 6 Ch. D. p. 100 ; Clarbrough 
 v. Toothill, 17 Ch. D. 787; Bradford 
 
 v. Younff, 26 Ch. D. 656 ; Salt v. 
 Cooper, 16 Ch. D. 544, p. 549. 
 (c) Sect. 100.
 
 INTRODUCTION. 11 
 
 preserved in fact, though not in name. The powers of the 
 old Courts were simply transferred to the newly- constituted 
 High Court of Justice, which has, therefore, no power to 
 change the nature of the judgment delivered. It would 
 be, for instance, beyond the jurisdiction of the High 
 Court, in an action which, before the Judicature Act, 
 would have been an action for damages merely, to pro- 
 nounce a judgment, " It is ordered that A. do pay to B.," 
 and thereto to attach the consequences of a decree in 
 equity, pronounced in a matter of which the Court of 
 Chancery would alone have had cognizance (d). Bearing 
 this in mind, we are able to place the proper limits on 
 enactments which, otherwise, would seem to bear another 
 construction. O. XLIL r. 3 of the Eules of the Supreme Construction 
 Court, 1883, is precisely in point when we come to consider r> 3.' ' 
 the principle just adverted to. The Rule of Court is as 
 follows : " A judgment for recovery by, or payment to, 
 any person of money may be enforced by any of the modes 
 by which a judgment or decree for the payment of money 
 of any Court whose jurisdiction is transferred by the prin- 
 cipal Act, might have been enforced at the time of the 
 passing thereof." It would be an absurd conclusion 
 (which, at the same time, would be a justifiable one, from 
 the general language of the rule) to say, that a judgment 
 for damages for breach of contract could be enforced by 
 process for contempt ; no such effect can be given to the 
 rule. It must be read with due regard to the limits of the 
 jurisdiction of the High Court, and to the essential differ- 
 ence between judgments themselves, according as they 
 correspond with the old judgment or the old decree. 
 The Judicature Acts have undoubtedly given power to 
 every judge to pronounce a judgment which would for- 
 merly have been within the exclusive jurisdiction of the 
 Court of Chancery, and the above rule shows that where 
 such a judgment is given, having for its subsidiary purpose 
 
 (d) See, for an illustration, Exports Sooson, L. R. 8 Ch. 231.
 
 12 
 
 Statutable 
 means of exe- 
 cution. 
 
 Main plan of 
 thia work. 
 
 Directory 
 judgments 
 and orders 
 having no 
 immediate 
 sanction. 
 
 LAW OF EXECUTION. 
 
 the payment or recovery of money, all methods of exe- 
 cution, available on any judgment for the like purpose, 
 may be resorted to. On the other hand, the rule allows 
 the employment of some, though not all, methods of exe- 
 cution formerly peculiar to courts of equity, to enforce 
 legal judgments where such methods were directed against 
 property. This is for the reason that their employment 
 does not alter the nature of the judgment itself. To 
 illustrate : the appointment of a receiver interferes in no 
 way with the judgment, and, therefore, can now be made 
 with respect to legal property, notwithstanding that it 
 might be reached by a common law writ in the hands of 
 the sheriff (e) . 
 
 The different means of execution, whose nature we have 
 suggested, were not available for the realization of certain 
 kinds of property. It therefore became necessary that 
 other means should be invented, whereby such property 
 might be reached in the hands of a judgment debtor, 
 and applied for the payment of his debt. Statutable 
 modes of execution were in consequence introduced, and 
 form a considerable division of our subject. 
 
 Preserving, so far as is possible, the principles whose 
 outlines we have attempted to define, this work will be 
 divided into three Books. 
 
 Book I. concerns execution on judgments and orders, 
 corresponding with execution upon judgments at law. 
 
 Book II. concerns the enforcement of judgments and 
 orders of which disobedience is a contempt. 
 
 Book III. concerns particular statutable and other 
 remedies available against certain kinds of property. 
 
 Before closing this chapter, it may be well to point out 
 that there are many judgments and orders which effect 
 their purpose without the necessity of execution being 
 issued upon them. We speak of decrees or judgments in 
 actions for foreclosure and redemption of mortgages, sale 
 
 () Vide infra, p. 321 . In re Pope, 17 Q. B. D. 74 3, judgment of Cotton, L. J.
 
 INTRODUCTION. 
 
 of property, appointment of guardians for infants, orders 
 for partition, settling "boundaries, and the like (/) . In these 
 cases, which are all of equitable origin, it is not usual that, 
 in the first instance, any person should be directed to per- 
 form any act, but if the thing to be done were not carried 
 out, the parties having the conduct of the cause or matter 
 might be charged, or by further order expressly directed, 
 to do the specific thing required. On this last-mentioned 
 kind of order steps for enforcement by means of execution 
 can of course be taken. It is, therefore, only when default 
 has been made in carrying out the general directions of the 
 Court, and a further specific order pronounced, that we are 
 concerned with the matter, and then such further order is 
 sui generis with those other judgments and orders upon 
 which execution is due according to their terms. 
 
 Besides these directory judgments and orders, there is Declaratory 
 another species which the Court is frequently called upon 
 to pronounce, and which equally does not concern us. 
 
 From the nature of the jurisdiction at common law, it 
 was formerly possible, by means of feigned issues (<?), and 
 other proceedings based on fictitious statements of fact, to 
 obtain a judgment upon any point, which would in effect be 
 a declaratory judgment or one impossible to enforce by any 
 sanction. In equity, however, the principle was thus stated 
 by Jessel, M. B. : " It was always the settled law of the old 
 Court of Chancery, and it is therefore now the settled law 
 of the Chancery Division of the High Court of Justice, that 
 it is not the province of the Court to declare the rights of 
 parties except in cases where immediate relief can be 
 given" (^). And again: "No suit is entertained simply 
 and exclusively for the purpose of deciding upon the nature 
 and extent of future contingent rights without immediate 
 
 (/) Some of these orders contain (g) See 8 & 9 Viet. c. 109 ; sect, 
 
 specific directions, which are of 19, 42 & 43 Viet. c. 59. 
 
 course personal, e. g., for payment (h) Hampton v. Holnian, 5 Ch. 
 
 of costs, and to that extent are en- D. p. 187. 
 forceable directly.
 
 14 LAW OF EXECUTION. 
 
 present relief" (i). But certain powers have been given to 
 the Courts of Chancery for deciding questions when raised 
 before them, although no relief is asked for. Take as 
 instances the power of trustees to go to the Court under 
 the Trustee Belief Acts, and the more general statutory 
 enactment, 15 & 16 Viet. c. 86, s. 50, which is as follows : 
 
 " No suit in the said Court shall be open to objection 
 on the ground that a merely declaratory decree or order is 
 sought thereby, and it shall be lawful for the Court to make 
 binding declarations of right without granting consequen- 
 tial relief " (k). 
 
 It is clear that with these judgments, in respect of which 
 the Courts give no consequential relief, we have, in the 
 course of this work, little or nothing to do. 
 
 (i) Jessel, M. R., in Kcvan v. (k) The nature of the questions 
 Crawford, 6 Ch. D. p. 42. See, also, which under this section the Court 
 cases summarized, Dan. Ch. Pr. will decide, and the conjoint opera - 
 6th ed. 791; 5th ed. 861. This does tion of the enactment with the 
 not, of course, imply any such pro- Judicature Act, will be found dis- 
 position as that the Court would cussed in Cox v. Barker, 3 Ch. D. 
 not pronounce judgment excepting 359, and Bright v. Tyndatt, 4 Ch. 
 where the right to execution must D. 189. Comparing this section 
 immediately accrue ; it was always with the statement of the nature of 
 within the power of the Court to equitable relief by Lord Ellesmere 
 place conditions upon the imme- (supra, p. 7), it will be seen how it 
 diate enforcement of its decrees. gave to the Court a new jurisdic- 
 tion altogether.
 
 BOOS I. 
 
 CONCEENING EXECUTION ON JUDGMENTS AND OEDEES 
 COEEESPONDING WITH EXECUTION ON JUDGMENTS 
 AT LAW. 
 
 EXECUTION upon judgments at law was carried out by Arrangement 
 means of writs. This Book is therefore concerned with O f this Book, 
 writs of execution, and we shall attempt to follow an 
 arrangement of our subject based, in the first place, upon 
 the nature of the property to be recovered in accordance 
 with the judgment, that is, whether it is land or money. 
 As to judgments for recovery of money, the writs of 
 execution applicable vary in their effect, according to the 
 nature of the property which it is sought to make available 
 for payment of the sum, or the nature of the personal 
 remedy attempted to be enforced. The whole subject of 
 this book may therefore be summarized as follows : 
 
 An explanation of the general principles underlying all 
 writs of execution, and the duties of the officers employed 
 to enforce them : 
 
 The consideration of the different writs : 
 
 A. The writ for recovery of land : 
 
 B. The writs for recovery of money. 
 
 Under these last-mentioned writs recourse is had : 
 To chattels and other tangible personal property 
 
 of the debtor : 
 To the land of the debtor : 
 To the person of the debtor by imprisonment. 
 This last-mentioned process, however, although it may 
 be said, so far as it is used to enforce the payment of 
 money, to belong to the subject discussed in this Book, will 
 be more appropriately treated of in Book II., under the 
 consideration of process for contempt of court.
 
 16 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 CHAPTER I. 
 
 WRITS OF EXECUTION GENERALLY. 
 
 THE subject of this chapter is divided into five sections : 
 Sect. 1. Common law process by writ of execution. 
 
 2 . Q-eneral rules, including the Rules of the Supreme 
 
 Court, relating to execution. 
 
 3. Change of parties to executions by devolution 
 
 of interest. 
 
 4. Returns to writs of execution. 
 
 5. Discovery in aid of execution. 
 
 SECT. 1. COMMON LAW PROCESS BY MEANS OF WRITS. 
 Nature of the We have seen that the scope of common law jurisdiction 
 tlon> called into exercise in any action, was originally confined 
 to questions of ownership or of title to property (a). This 
 implies that certain kinds of property, and certain interests 
 or estates therein, were alone considered as the possible 
 subjects of rights. All judgments or decisions delivered 
 affected none other but these kinds of property, and the 
 person against whom the judgment had been obtained was 
 affected only in an indirect manner. If the subject-matter 
 of the dispute were land, the judgment declared the rights 
 of the litigant parties in respect to it, and effect was given 
 to the judgment by the transfer of the seisin or possession 
 to the successful party under the direction of the sheriff. 
 If the subject-matter of the dispute were a breach of agree- 
 ment, or a wrong, the judgment directed compensation to be 
 taken from the defendant and transferred to the plaintiff, 
 
 (a) In which general expression must be included the right to so much 
 compensation or damages.
 
 WRITS OF EXECUTION GENERALLY. 17 
 
 and effect was given to the judgment by realization of the Chap. I. 
 sum recovered out of the property of the unsuccessful Sec - lt 
 party. 
 
 The general character, therefore, of legal execution may 
 be said to be, that it is concerned only with the transfer of 
 legal property from the one litigant party to the other, in 
 pursuance of the judgment or order pronounced (5). 
 
 From the earliest times, all procedure in the Courts of Basis of pro- 
 common law (c) was based upon a commission or delega- 
 tion from the sovereign himself. The jurisdiction of 
 the judges or justices depended then, as now, upon the 
 authority given to them by their commissions of office, and 
 has always been strictly confined to the limits assigned 
 thereby. Again, in all civil proceedings the judges could Writs, 
 take cognizance of such matters only as were brought before 
 them under the authority of writs, which had to be sued out 
 of the Chancery (the officina justitice) by the persons seeking 
 redress. The writ, therefore, has from the earliest times 
 formed the basis of all civil procedure in the Courts of 
 common law (d] . Writs have, with reference to their opera- 
 tive parts, always been of the same general form. They 
 are commands, mandates, or precepts, directed to a person 
 or persons in the name of the sovereign, and enjoining him 
 or them to do or abstain from doing some act. They were 
 framed to meet the different cases arising for decision, and 
 therefore became very early in our legal history the subject 
 of study amongst the most skilful lawyers. By them a 
 system was elaborated of wonderfully terse and technical 
 phraseology, and the whole judicature of the country 
 appears at one time to have been confined within the 
 bounds of these set forms of expression, which could not 
 
 (b] The nature of execution by such as shire or county courts. 
 
 ca. sa. has been already touched (<?) See the very able note to 
 
 upon, and shown to be in reality no 1 Reeves' Hist. Eng. Law, p. 145. 
 
 direct consequence of the judgment There is an interesting and learned 
 
 itself ; supra, Introduction, p. 4. chapter on the writ process in 
 
 (c) Excluding, that is to say, the Bigelow's Hist, of Procedure, p. 
 original local courts of the kingdom 147. 
 
 E. C
 
 18 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Classification. 
 
 Original and 
 judicial. 
 
 yield one jot to fit the circumstances of any particular case. 
 If the case calling for redress could not be expressed in 
 known legal terms it went without remedy. 
 
 The elaboration of the system to which we have referred 
 resulted in a classification of writs which is still frequently 
 of the greatest practical value. All writs were divided into 
 two classes, prerogative writs, and writs of right. It 
 would be travelling too far out of our path to discuss the 
 modern equivalents for prerogative writs (e). With writs 
 of right, however, we have something to do. They were 
 the ordinary writs used in process in all disputes between 
 subject and subject, and were either original or judicial. 
 
 This is the distinction, which, notwithstanding the 
 changes brought about by time, is still exemplified in 
 every action pursued to execution. Formerly, the original 
 writ, or the " original " as it was called, was the beginning 
 or foundation of every suit (/). No action in the 
 King's Courts could be commenced without it (g) . And 
 although new methods of commencing actions were 
 devised (/*), between those substitutionary methods and 
 judicial writs the distinction was always preserved. 
 Judicial writs are writs of execution. They did not, like 
 original writs, issue out of the Chancery, but out of the 
 
 (e) For a recent case where the 
 difference between prerogative writs 
 and writs of right was touched 
 upon, see Reg. v. Churchwardens of 
 All Saints', Wig an, L. R. 1 Ap. Ca. 
 611. 
 
 (/) 3 Bl. Comm. ed. 1876, 268, 
 where it is pointed out that these 
 writs are demandable of common 
 right under Magna Charta, c. 29. 
 
 (g) 1 Sp. Eq. Jur. 225, 226. The 
 register of original writs, which 
 formed the subject of so much 
 ancient ingenuity and learning, was 
 the subject of the commentary of 
 Fitzherbert in his Natura Brevium. 
 (As to different earlier editions of 
 
 this invaluable antiquarian work, 
 see Nicholson's Hist. Libr. ed. 1 776, 
 p. 166.) See further, as to the 
 nature of original writs, Tidd's 
 Pr. 102. Original writs were, 
 again, distinguished into brevia 
 formata or dc cursu and brevia magis- 
 tralia, these last named correspond- 
 ing with the writs framed under the 
 Stat. Westminster II. (13 Ed. 1, 
 c. 24), the statute known as In 
 consimili casu. Co. Lit. 73b. ; Tidd's 
 Pr. 103; 2 Eeeves' Hist. 112 et scq. 
 (h) It is said generally ' ' by con- 
 nivance of the judges." 3 Steph. 
 Com. 509. For a fuller account, 
 see Tidd's Pr. 37 et seq., 102.
 
 WRITS OF EXECUTION GENERALLY. 19 
 
 Court where the record was upon which they were Chap. I. 
 founded e. Sec - * 
 
 By a series of statutes, commencing with 2 & 3 Yict. Modern -writ 
 c. 39, the whole process of commencing an action has substit 0118 ' 
 been revolutionised, and made to depend, in all common tionary f or the 
 law Courts, upon the issue of a writ of summons (k). At 01 
 the present time, although the process by original and its 
 equivalents have been supplanted by the writ of summons, 
 the relative position of judicial writs has not changed. 
 They are still founded upon the judgment or record. It 
 is these judicial writs, which, under the name of writs of 
 execution, it is proposed to discuss. 
 
 SECT. 2. GENERAL EULES RELATING TO EXECUTION. 
 SUB-SECT, (i). General Application of 0. XLIL 
 
 The most important rules relating to execution are at 
 the present time embodied in the Rules of the Supreme 
 Court. 0. XLII. concerns the subject of execution o. XLII. 
 generally, and we are, therefore, most interested in its 
 explanation. Most of the rules of this Order apply to all 
 writs of execution alike, but the explanation and con- 
 sideration of some of them is for convenience postponed 
 till we come to those parts of our subject to which they 
 most intimately relate. 
 
 The order does not in any way limit the rights which Limits of 
 persons may have to execution in cases not provided for. 
 
 By rule 28, " Nothing in this order shall take away or o. XLII. 
 curtail any right heretofore existing to enforce or give r> 28- 
 effect to any judgment or order in any manner or against 
 any person or property whatsoever." 
 
 (i) 2 Wms. Saund. 5th ed. 38 (2), effect of the legislation prior to the 
 and see p. 27. Judicature Acts in 3 Steph. Com. 
 
 (k) See a short summary of the ed. 1883, 508.
 
 20 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 0. XLII. r. 8. 
 
 Definition of 
 writ of exe- 
 cution. 
 
 It will be seen, particularly when we come to treat of 
 the methods of enforcing judgments against equitable pro- 
 perty, and of enforcing judgments and orders against the 
 person, that they are not covered by the rules of this order. 
 Hence the necessity for this rule 28 (/). 
 
 By rule 8, "In these Rules the term 'writ of execution' 
 shall include writs of fieri facias, capias, elegit, sequestration, 
 and attachment, and all subsequent writs that may issue 
 for giving effect thereto. And the term ' issuing execu- 
 tion against any party ' shall mean the issuing of any 
 such process against his person or property as under the 
 preceding rules of this order shall be applicable to the case." 
 
 This, which may be called the interpretation rule, does 
 not call for any explanation. It may be remarked, how- 
 ever, that its application and construction may well give 
 rise to differences of opinion (m). 
 
 O. XLII. 
 
 r. 24. 
 
 Order to be 
 enforced as 
 judgment. 
 
 SUB-SECT, (ii). Conditions upon which Writs of Execution 
 may issue. 
 
 By rule 24 of the same Order, "Every order of the Court 
 or a Judge in any cause or matter may be enforced against 
 all persons bound thereby, in the same manner as a judg- 
 ment to the same effect." 
 
 This does not make an order equivalent to a final judg- 
 ment for purposes other than those of execution (ri). It 
 is of importance to bear specially in mind that orders 
 made in Chambers have to be entered as if they had been 
 made in Court (o). 
 
 (I) See Re Coney, Coney v. Bennett, 
 29 Ch. D. 993. 
 
 (m) See the discussion, infra, on 
 r. 19 of this order. 
 
 () Exparte Chinery, 12 Q. B. D. 
 342, where a garnishee order abso- 
 lute was held not to be a final 
 judgment within sect. 4, sub-s. 1 (g) 
 of the Bankruptcy Act, 1883. 
 
 Cremetti v. Crom, 4 Q. B. D. 225 ; 
 Nott v. Sands, W. N. (1883), 74. 
 
 (o) Cons. Ord. XXXV. r. 32; Sal- 
 lard v. Tomlinson, 52 L. J. Ch. 656, 
 where non-observance of the for- 
 mality of entering was held to dis- 
 entitle applicant to writ of attach- 
 ment.
 
 WRITS OF EXECUTION GENERALLY. 21 
 
 Where there is a judgment, execution may issue forth- Chap. I. 
 with, not because there is a default, but because the debt Sec - 2 (") 
 is due as soon as judgment is signed ; and notwithstanding Execution 
 that the judgment debtor is a man of undoubted solvency forthwith on 
 or wealth, the creditor is not bound to wait, even for a 
 return of post (p). Where, however, on a judge's order 
 that judgment should be signed for debt and costs to be 
 taxed, in default of payment, and judgment was signed 
 immediately after the demand of payment made to the 
 clerk attending on the taxation, the judgment and execu- 
 tion issued thereon were set aside (<?). 
 
 There are certain conditions, both with respect to the 
 form of the judgment or order, and to the persons entitled 
 or liable to execution, to be fulfilled before a writ of exe- 
 cution can be issued. 
 
 By 0. XLII. r. 1, "Where any person is by any judg- 0. XLII. r. 1. 
 
 ment or order directed to pay any money, or to deliver up Demand 
 
 P -, -, , . -. . , before execu- 
 
 or transfer any property, real or personal, to another, it tion not neces- 
 
 shall not be necessary to make any demand thereof, but 8ar y- 
 the person so directed shall be bound to obey such judg- 
 ment or order upon being duly served with the same with- 
 out demand." 
 
 The service here mentioned is not by this order rendered 
 necessary in cases where before the rules it was not neces- 
 sary. " Upon being duly served " apparently refers only 
 to cases of judgments or orders on which process for con- 
 tempt can be taken (r) . Demand per se was never neces- 
 sary as a condition to enforcing a simple judgment (s). 
 
 Rule 2. " Where any person who has obtained any judg- o. XLII. r. 2. 
 ment or order upon condition does not perform or comply Waiver of 
 
 conditional 
 judgment. 
 (p) Smith v. Smith, L. R. 9 Ex. (r) Land Credit Co. of Ireland v. 
 
 121. The debt becomes " authen- Fermoy, L. R. 5 Ch. 323. And see 
 
 ticated by the judgment." Vide Se , a Solicitor, 33 TV. R. 131. 
 
 supra, p. 2. () It was necessary, where stipu- 
 
 (q) The judgment was said to be lated for, before proceeding to sign 
 
 signed too soon. Perkins v. National judgment on warrant of attorney. 
 
 Assurance and Investment Associa- Tidd. Pr. 546. See Smith v. Smith, 
 
 tion, 2 H. & N. 71 ; Cruikshank v. L. K. 9 Ex. 121. 
 Moss, 8 L. T. N. S. 439.
 
 22 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 O. XLII. r. 9. 
 
 Execution on 
 
 conditional 
 
 judgment. 
 
 Leave to issue 
 execution in 
 four cases. 
 
 The applica- 
 tion for leave. 
 
 with such condition, he shall he considered to have waived 
 or abandoned such judgment or order so far as the same is 
 beneficial to himself ; and any other person interested in 
 the matter may, on breach or non-performance of the con- 
 dition, take either such proceedings as the judgment or 
 order may in such case warrant, or such proceedings as 
 might have been taken if no such judgment or order had 
 been made, unless the Court or a Judge shall otherwise 
 direct." 
 
 Eule 9. " Where a judgment or order is to the effect that 
 any party is entitled to any relief, subject to or upon the ful- 
 filment of any condition or contingency, the party so entitled 
 may, upon the fulfilment of the condition or contingency, 
 and demand made upon the party against whom he is 
 entitled to relief, apply to the Court or a Judge for leave 
 to issue execution against such party. And the Court or 
 Judge may, if satisfied that the right to relief has arisen 
 according to the terms of the judgment or order, order that 
 execution issue accordingly, or may direct that any issue or 
 question necessary for the determination of the rights of 
 the parties, be tried in any of the ways in which questions 
 arising in an action may be tried." 
 
 When a judgment or order is pronounced, all methods 
 of enforcing it are primd facie available without its being 
 necessary to obtain the leave of the Court (t}. But that 
 leave is required where the judgment or order itself 
 imposes the necessity therefor (u), and also in the several 
 cases which are enumerated in 0. XLII. rr. 9, 10, 23, and 
 31 respectively, and discussed in this sub-section. 
 
 Where the application for leave is necessary, it must be 
 
 (f) The suitor becomes entitled, 
 as of right, to his execution forth- 
 with. Smith v. Smith, L. R. 9 
 Ex. 121. The solicitor has no im- 
 plied authority to enter into an 
 agreement on his behalf to post- 
 pone it. Lovegrovc v. White, L. R. 
 6 C. P. 440. 
 
 (u) A judgment in an action for 
 a sum of money " to be dealt with 
 as the Court shall direct," seems 
 to mean that the plaintiff shall not 
 enforce it without the direction of 
 the Court. Hodges v. Fincham, 1 
 Ch. D. 9.
 
 WRITS OF EXECUTION GENERALLY. 23 
 
 supported by affidavit. It is frequently, and specially in Chap. I. 
 the first instance, an ex parte application ; but where there Sec - 2 (") 
 is a person who has clearly a right to oppose, as, for 
 example, the executor of a judgment debtor, the notice of 
 motion or summons must be served on him. 
 
 When the judgment or order is conditional, thus falling Leave on 
 within r. 9 above-mentioned (a?), the application is in the 9i| ditio Df l1 ^ 
 first instance made ex parte, and then, if it appears to the order. 
 Court to be necessary, other parties interested must have 
 notice, and a notice of motion or summons must be served 
 on them. The affidavit in support must show that all the 
 conditions of the judgment or order have been fulfilled, 
 and also that demand has been duly made as required by 
 the rule (y) . 
 
 An order simply giving leave to issue a writ of execu- Order giving 
 tion (z) need not be drawn up; for by 0. ML r. 14, where ^^^ 
 an order has been made not embodying any special terms, o. LIT. r. 14. 
 nor including any special directions, but simply enlarging 
 time for taking any proceeding, or doing any act, or giving 
 leave (inter alia) for the issue of any writ (z) , other than a 
 writ of attachment, it shall not be necessary to draw up 
 such order, unless the Court or a judge shall otherwise 
 direct; but the production of a note or memorandum of 
 such order, signed by a judge, registrar, master, chief clerk, 
 or district registrar, shall be sufficient authority for such 
 enlargement of time, issue, or other act; and a direction 
 that the costs of such order shall be costs in any cause or 
 matter is not to be deemed a special direction within the 
 meaning of the rule. The solicitor of the person on whose 
 application such order is made is to forthwith give notice 
 in writing to such person (if any) as would, if this rule had 
 
 (z) See Bellv. Denver, 34 "W. R. (z) Strictly , it would appear, that 
 
 368. an order giving leave to issue execu- 
 
 (y) For forms of demand, sum- tion generally, and not merely a 
 
 mons and notice of motion, see certain writ of execution, ought to 
 
 Appendix, infra, p. 393 ; Forms be drawn up. Vide infra, p. 395, 
 
 Nos. 1, 2. n. (<?).
 
 24 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. not been made, have been required to be served with such 
 
 order (a). 
 
 Leave to issue Rule 23. " In the following cases, viz. : 
 certeln^casTs. ( a ) Where six years have elapsed since the judgment or 
 date of the order, or any change has taken place 
 by death or otherwise in the parties entitled or 
 liable to execution (b] ; 
 
 (b) Where a husband is entitled or liable to execution 
 
 upon a judgment or order for or against a wife ; 
 
 (c) Where a party is entitled to execution upon a judg- 
 
 ment of assets in futuro ; 
 
 (d) Where a party is entitled to execution against any 
 
 of the shareholders of a joint stock company 
 upon a judgment recorded against a company, or 
 against a public officer or other person represent- 
 ing such company, 
 
 the party alleging himself to be entitled to execution may 
 apply to the Court or a Judge for leave to issue execution 
 accordingly. And such Court or Judge may, if satisfied 
 that the party so applying is entitled to issue execution, 
 make an order to that effect, or may order that any issue 
 or question necessary to determine the rights of the parties 
 shall be tried in any of the ways in which any question in 
 an action may be tried. And in either case such Court 
 or Judge may impose such terms as to costs or otherwise as 
 shall be just." 
 
 The practice introduced by this rule is in lieu of that 
 formerly pursued by means of a writ of scire facias. The 
 application under the rule is made ex parte in most cases (c) . 
 The forms for proceeding will be found in the Appendix, 
 infra (d}. 
 
 Costs of order As to sub-rule (a). The costs of an order under this 
 
 for change of 
 
 parties. rule tor change oi parties entitled to enforce a judgment, 
 
 e.g., executors of a deceased judgment creditor, must be 
 
 (a) As to form of order see note Jaygar, W. N. 1886, 108. 
 
 to form in Appendix, infra, p. 395. (c) Davis v. Andrews, W. N. 
 
 (b) For example of exercise of 1884, 94. 
 
 power under this rule, see Jones v. (d) Forms Nos. 3 7.
 
 WRITS OF EXECUTION GENERALLY. 25 
 
 borne by the applicants (e). It has been decided that, for Chap. I. 
 purposes of serving a bankruptcy notice under sub-s. 1 of Sec - 2 ( u )- 
 s. 4 of the Bankruptcy Act, 1883, an executor who has not Executor's 
 obtained an order under this sub-rule is in the position of before order 
 a creditor whose execution has been stayed, and that there- obtamed - 
 fore such notice is ineffectual (/). It is not necessary for Gamishee 
 a judgment creditor to obtain leave under this rule to P roceediai g 8 - 
 enable him to proceed by way of garnishee summons (g). 
 
 As to sub-rule (b). The liability of a husband on judg- Husband's 
 ments against his wife, and the corresponding right of the 
 
 judgment creditor to proceed against him, depend upon the a g ain s* his 
 date of the marriage. Where the marriage took place before 
 the 1st January, 1883, and on or after the 30th July, 1874, 
 the husband's liability upon any judgment which had 
 been at the date of his marriage entered up against his 
 wife was limited to the extent of certain assets particu- 
 larized in the Married Women's Property Act, 1874 (K). 
 After marriage he was liable, subject to the same limita- 
 tion as to execution as we have just mentioned, to be 
 himself sued jointly tcith his wife for her ante-nuptial con- 
 tracts and torts. His common law liability for the post- 
 nuptial contracts and torts of his wife was left untouched. 
 In all cases, therefore, of actions brought after marriage 
 this rule would not apply, for the judgment would be 
 entered up against both him and his wife, and execution 
 would follow the judgment (hh). A husband married 
 since the 31st December, 1882 (i), is not liable on any 
 judgment entered up, by virtue of the Act of 1882, against 
 his wife, and this sub-rule has again no application ; but 
 he would appear to be liable to the extent of her property 
 
 (e) Mercer v. Lawrence, 26 ~W. R. was, of course, liable upon the 
 506. judgment, it being enforced against 
 
 (f) Ex parte Woodall, Re Wood- him by scire facias. Cooper v. Hun- 
 all, 13 Q. B. D. 479. chin, 4 East, 521 ; 2 Hop. Husb. 
 
 (ff) Fellows v. Thornton, 14 Q. B. & W. p. 75. 
 D. 335. (hh) Judgment of Lord Esher, 
 
 \h) 37 & 38 Viet. c. 50, ss. 1, 2. M. E., in Scott v. Morley, 20 Q. B. 
 
 Before the legislation which was D. 120. 
 
 begun by the Married "Women's (i) The commencement of opera- 
 
 Property Act, 1870, where a man tion of Married "Women's Property 
 
 married a woman against whom Act, 1882 (45 & 46 Viet. c. 75, 
 
 judgment had been entered up, he s. 25), is 1st January, 1883.
 
 26 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Husband's 
 right to en- 
 force judg- 
 ment for wife, 
 
 Judgment of 
 assets in 
 future. 
 
 Evidence in 
 support of 
 application 
 for leave. 
 
 coming into his hands upon a judgment entered up against 
 her at the date of marriage ; any other liability he may 
 be under on account of the wife is a joint liability with 
 her ('). As to judgments against the wife, therefore, the 
 rule, it is submitted, applies only when they are entered 
 up against her prior to marriage, and then the husband's 
 liability is limited, as we have mentioned. The husband's 
 right to enforce a judgment entered up in favour of his 
 wife remained as it was at common law till the commence- 
 ment of the Act of 1882 i.e., he could enforce a judg- 
 ment entered in her favour (#). To such a case as this the 
 sub-rule applies. The husband has no right to enforce 
 a judgment entered up in favour of his wife, since the 
 Act of 1882. 
 
 As to sub-rule (c). The judgment of assets in futuro is 
 signed against the personal representative of the deceased 
 debtor on a plea of plene administravit by him (kk). The 
 form of the judgment is, in its most material parts, " It 
 is adjudged that the plaintiff do recover against the defen- 
 dant the sum of and for his costs of suit, 
 to be levied of the goods and chattels which were of the 
 said A. B> [the testator or intestate] at the time of his 
 death, and which shall hereafter come to the hands of the 
 defendant as executor [or administrator] to be adminis- 
 tered"^). 
 
 The effect of this judgment is, that the fact that there 
 were no assets of the deceased in the hands of his repre- 
 sentative at the time of judgment being signed is taken 
 as admitted. The debt is also of necessity admitted. On 
 applying, therefore, for leave to issue execution, the plain- 
 tiff must prove that assets have come into the hands of 
 the representative to be administered after the date of the 
 
 (ii) This seems to follow from 
 M. W. P. Act, 1882, ss. 2 and 14, 
 and judgment of LordEsher, M. E,., 
 Scott v. Morley, 20 Q. B. D. 120, 
 p. 125. As to execution against 
 married women, vide infra, p. 375. 
 
 (k) Which could, from the same 
 considerations as above mentioned, 
 
 only happen when it had been ob- 
 tained before her marriage. 
 
 (kk) See generally, Wms. on 
 Executors, p . 1 9 9 1 . Enforceable by 
 scire facias under s. 91(17&18 Viet, 
 c. 125), C. L. P. Act, 1854. 
 
 (I) For form, see 2 Saund. 216 ; 
 Ch. Forms, p. 541.
 
 WRITS OF EXECUTION GENERALLY. 27 
 
 judgment (ni) . And it is to this that the affidavit in support Chap. I. 
 of the application must be directed. Evidence that, not- Sec ' 2 
 withstanding the judgment, there were assets will not do. 
 
 Sub-rule (d). In those cases where a company has no Execution 
 assets which can be reached by the ordinary writs of execu- gl^ com" 1 * 
 tion, but at the same time there is due to it from one or more panics. 
 of its shareholders an amount still unpaid on the share or 
 shares he or they hold, a creditor of the company can 
 proceed under this rule to obtain direct execution against 
 the shareholder (n). The rule applies to all joint stock 
 companies, whether incorporated by act of parliament or 
 merely limited companies under the Companies Acts, 1862 
 to 1880 ; but it is clear that, in the latter case, the title of 
 a liquidator, who had been appointed after the commence- 
 ment of proceedings taken by a creditor of the company 
 under this rule, would render such proceedings of no avail (o) . 
 
 The remedy given by scire facias against shareholders in Sdrefaeia* 
 
 . , . , . . against mem- 
 
 incorporated companies, was also given against members her of bank- 
 
 of banking companies (p~). The judgment was obtained 
 against the public officer of the banking company, and this 
 method of realizing the sum due was provided where there 
 were no partnership assets to meet it. Banking companies 
 can, however, be wound up under the Companies Acts, and 
 the remedy by sci. fa. has become practically obsolete. 
 Whether process should be taken in this manner, or under 
 rule 23, sub-rule (d), depends of course upon whether the 
 banking company is or is not a joint stock company within 
 its provisions (q). 
 
 By rule 10, " Where a judgment or order is against a 0. XLII. 
 firm, execution may issue : 
 
 (a) Against any property of the partnership ; against a 
 
 (m) Wheatley v. Lane, Saund. a shareholder in such a company, rm ' 
 
 216 a (2) ; Wms. on Executors, it ought to be made in open Court 
 
 1991 et seq. under the section. See Ch. Arch. 
 
 (n) The whole practice is set and last note ; form of notice of 
 
 forth in Ch. Arch. p. 1074. motion, Appendix, infra, p. 395, 
 
 (o) The remedy of scire facias was Form No. 7. 
 
 first given against shareholders in (p) 1 Geo. iv. c. 46, s. 13. 
 
 incorporated companies by the Com- (q) See Grant's Law of Banking, 
 
 panies Clauses Act, 1845 (8 Viet. passim, and p. 381; Dan. Ch. Forms, 
 
 c. 16, s. 36). And where the ap- p. 363, Nos. 907, 908, 909. 
 plication is made with reference to
 
 28 
 
 Book I. 
 
 Effect of 
 judgment 
 against a 
 firm. 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 (b) Against any person who has appeared in his own 
 name under 0. XII. r. 15, or who has admitted on the 
 pleadings that he is, or who has been adjudged to be, a 
 partner ; 
 
 (c) Against any person who has been served as a partner 
 with the writ of summons, and has failed to appear. 
 
 If the person who has obtained judgment, or an order, 
 claims to be entitled to issue execution against any other 
 person as being a member of the firm, he may apply to 
 the Court or a Judge for leave so to do, and the Court or 
 Judge may give such leave if the liability be not disputed, 
 or, if such liability be disputed, may order that the liability 
 of such person be tried and determined in any manner in' 
 which any issue or question in an action may be tried and 
 determined." 
 
 There is no rule or order prescribing how the judgment 
 is to be entered where the writ has been issued against a 
 firm ; the judgment must, therefore, accord with the writ, 
 and be in form also against the firm (r). Formerly, 
 where it was essential for the names of the persons against 
 whom judgment was signed to appear upon the record, in 
 order to entitle the person pursuing the judgment to issue 
 execution against them, no further process could be taken 
 against a person who was subsequently discovered to have 
 been equally liable as a member of the firm or partnership. 
 This was because the cause of action against him was gone, 
 and the debt merged in the judgment (s). The effect of 
 a judgment against a firm is, therefore, clearly different 
 from that of a judgment against such of the partners as 
 were known to the plaintiff ; and it is advisable in all cases 
 to sue defendants, where practicable, and sign judgment 
 against them, in their firm name (t). The above rule regu- 
 
 (r) Jackson v. Litchfield, 8 Q. B. 
 D. 474. Except where appearance 
 has been entered by one person 
 trading as the firm, and the ac- 
 tion has thenceforth been pursued 
 against him only. See Munster v. 
 Cox, 10 Ap. Ca. 680. 
 
 () Kendall v. Hamilton, 4 Ap. 
 
 Ca. 504. 
 
 (t) This is submitted to be cor- 
 rect, notwithstanding the statement 
 in a leading text -book, that "a 
 judgment against a firm has the 
 same effect that a judgment against 
 all the partners had formerly." 
 Poll. Pait. 106.
 
 WRITS OF EXECUTION GENERALLY. 29 
 
 lates the issue of execution upon such a judgment, and is Chap. I. 
 said not to limit the judgment creditor's remedy to the par- 
 ticular course of procedure enacted by it (u). 
 
 The question who are the persons against whom a judg- 
 ment against a firm is valid and unimpeachable has been 
 the subject of much judicial discussion (#), and is still in- 
 completely answered, if not altogether unanswered. The 
 decision of Watkin Williams, J., that it is a question of 
 fact, is unsatisfactory (y). 
 
 Where judgment is signed against a firm, it may be Leave to issue 
 necessary, in the events mentioned in the rule, to obtain 
 leave to issue execution (z) . The formal proceedings on the 
 application have already been referred to (). The appli- 
 cation is not ex parte; but a summons or notice of motion 
 should be served on the person it is sought to make liable. 
 The affidavit in support of the application must, of course, set Evidence in 
 forth the grounds upon which the alleged liability is based, application. 
 
 The service required by clause (c) of rule 10 is per- Service under 
 sonal service. Mere service under 0. IX. r. 6, is not suffi- r 
 cient for execution to issue without leave (b). 
 
 The five rules of 0. XLIL, 24, 1, 2, 9, and 10, we have 
 just discussed, are not the only ones having reference to 
 the judgment itself upon which execution may issue. The 
 most important other rule, in this respect, is rule 5 of 
 0. XLL, relating to judgments and orders, of which diso- 
 bedience is a contempt. We shall consider this rule when 
 we treat of the writ of attachment. 
 
 One other rule calls for notice in this sub-section. 0. XLII. 
 
 O/ 
 
 By rule 26, "Any person, not being a party to a cause 
 or matter, who obtains any order, or in whose favour any execution by 
 order is made, shall be entitled to enforce obedience to such persons other 
 
 than parties. 
 
 order by the same process as if he were a party to such 
 
 (ti) Clark v. Cullen, 9 Q. B. D. 436. 
 
 355. It does not appear what form (z) The effect of the execution 
 
 the suit in Chancery suggested in when issued is referred to infra, 
 
 this case would have taken before p. 135. 
 
 the Judicature Act. A mere suit (a) Supra, p. 22 ; Forms 2 7. 
 
 for discovery would have been use- (b) Ex parte Ide, Re Ide, 17 Q. B. 
 
 less after judgment signed. D. 755 ; 55 L. J. Q. B. 484 ; Pol- 
 
 (x) Ex parte Young, 19 Ch. D. 124. lexfen \. Sibson, 16 Q. B. D. 792. 
 
 (y) Davis v. Morris, 10 Q. B. D.
 
 30 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 cause or matter ; and any person, not being a party to a 
 cause or matter, against whom obedience to any judgment 
 or order may be enforced, shall be liable to the same pro- 
 cess for enforcing obedience to such judgment or order as 
 if he were a party to such cause or matter." 
 
 An example of the application of this rule would appear 
 to be where a person has, at the instance of sequestrators or 
 a receiver, been ordered to deliver up possession and has 
 refused to do so. A writ of possession could then issue for 
 non-compliance with the order, just as if the disobedient 
 person had been a party to the proceedings. 
 
 Production of 
 judgment to 
 officer. 
 
 Entry of 
 judgments. 
 
 O. XLI. r. 1. 
 
 Entry of 
 orders made 
 in chambers. 
 
 SUB-SECT, (iii). Hules relating to the actual issue of 
 Writs of Execution. 
 
 There are four rules of 0. XLII. which concern the 
 actual issuing of writs of execution. 
 
 By rule 11, "No writ of execution shall be issued with- 
 out the production to the officer by whom the same should 
 be issued of the judgment or order upon which the writ of 
 execution is to issue, or an office copy thereof, showing the 
 date of entry. And the officer shall be satisfied that the 
 proper time has elapsed to entitle the creditor to execution." 
 
 Judgments are entered in pursuance of 0. XLI. r. 1, by 
 which, " Every judgment shall be entered by the proper 
 officer in the book to be kept for the purpose. The party 
 entering the judgment shall deliver to the officer a copy of 
 the whole of the pleadings in the cause, other than any 
 petition or summons ; such copy shall be in print, except 
 such parts (if any) thereof as are by these Rules permitted to 
 be written: provided that no copy need be delivered of any 
 document, a copy of which has been delivered on entering 
 any previous judgment in such cause." The prescribed 
 forms to be used on entering judgment are contained in 
 Appendix F. to the Eules. 
 
 With regard to orders, as distinguished from judgments, 
 we have Consolidated Order XXXV. r. 32, which applies
 
 WRITS OF EXECUTION GENERALLY. 31 
 
 to practice in the Chancery Division. By that rule, all Chap. I. 
 orders made in Chambers, and drawn up by the chief clerk Sec - 2 ( m )- 
 or registrar, shall be entered in the same manner and in the 
 same office as orders made in Court are entered. 
 
 By rule 12, "No writ of execution shall be issued with- 
 out the party issuing it, or his solicitor, filing a prcecipe (c) 
 
 for that purpose. The prcecipe shall contain the title of the 
 action, the reference to the record, the date of the judg- 
 ment, and of the order, if any, directing the execution to be 
 issued, the names of the parties against whom, or of the 
 firm against whose goods, the execution is to be issued, and 
 shall be signed by or on behalf of the solicitor of the party 
 issuing it, or by the party issuing it if he do so in person. 
 The forms in Appendix Gr. shall be used, with such varia- 
 tions as circumstances may require." 
 
 The forms in Appendix Gr., so far as they relate to writs 
 of execution, will be found in the Appendix to this work. 
 
 The above rule replaces E. Gr. Hil. 1853, r. 71. 
 
 Rule 13. " Every writ of execution shall be indorsed with Indorsement 
 the name and place of abode, or office of business, of the execution. 
 solicitor actually suing out the same ; and when the solicitor 
 actually suing out the writ shall sue out the same as agent 
 for another solicitor, the name and place of abode of such 
 other solicitor shall also be indorsed upon the writ ; and in 
 case no solicitor shall be employed to issue the writ, then 
 it shall be indorsed with a memorandum expressing that 
 the same has been sued out by the plaintiff or defendant 
 
 (c) The -word prcecipe has two has always been part of the prac- 
 
 distinct significations in English tice of our Courts to retain some 
 
 law. See Sweet's Law Diet. It is record of what has been done, and 
 
 used in the sense of a formal di- to require that a pracipe, which is 
 
 rection to an officer of the Court, a mere direction by the attorney or 
 
 as here ; and, also, there were person issuing the writ to the 
 
 several original writs at common proper issuing officer to so issue it, 
 
 law which came to be called prce- should be given to him and filed. 
 
 cipes. Co. Lit. 101 a. The word For the old practice as to original 
 
 is manifestly taken from the initial writs called prcecipes, see Tidd Pr. 
 
 words in the particular writs. It 104 ct seq.
 
 32 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Date and 
 form of writ 
 of execution. 
 
 0. XLII. 
 r. 16. 
 
 Indorsement 
 on -writ. 
 
 Indorsement 
 as to interest. 
 
 Interest on 
 costs. 
 
 in person, as the case may be, mentioning the city, town, 
 or parish, and also the name of the hamlet, street, and 
 number of the house of such plaintiff's or defendant's 
 residence, if any such there be." 
 
 Eule 14. " Every writ of execution shall bear date of 
 the day on which it is issued. The forms in Appendix H. 
 shall be used, with such variations as circumstances may 
 require." 
 
 This rule was first made by E. Gr. 1853, r. 72. Before 
 that time writs of execution were tested or dated back to 
 any day not preceding the first day of the term in which 
 the judgment on which they were issued was signed (d), 
 
 The forms in Appendix H., so far as they concern us, 
 will be found in the Appendix, infra. 
 
 By Eule 16, "Every writ of execution for the recovery 
 of money shall be indorsed with a direction to the sheriff, 
 or other officer or person to whom the writ is directed, to 
 levy the money really due and payable, and sought to be 
 recovered under the judgment or order, stating the amount, 
 and also to levy interest thereon, if sought to be recovered, 
 at the rate of 41. per cent, per annum from the time when 
 the judgment or order was entered or made; provided that 
 in cases where there is an agreement between the parties 
 that more than 41. per cent, interest shall be secured by 
 the judgment or order, then the indorsement may be 
 accordingly to levy the amount of interest so agreed." 
 
 Every judgment (e) when signed carries interest at 41. 
 per cent, per annum until satisfied, and execution for such 
 interest may be levied(/). Where, however, judgment 
 was signed for costs, a question has been raised as to the 
 time from which the interest runs; and under the forms in 
 use before October, 1883, the interest, both on judgment 
 
 (d) Srocher v. Pond, 2 DOTV!. 472. 
 
 (e) By the terms of 0. XLII. 
 r. 24, this includes order, but does 
 not include a County Court judg- 
 ment. Reg. v. County Court of Essex, 
 
 18 Q. B. D. 704. 
 
 (/) 1 & 2 Viet. c. 110, s. 17. 
 The judgment when signed merges 
 an agreement to pay more. Re Eu- 
 ropean Central Rail. Co., 4 Ch. D. 33.
 
 WRITS OF EXECUTION GENERALLY. 33 
 
 and costs, was held to be leviable in execution from the Chap. I. 
 date of the certificate of taxation of the costs only(gr). Sec - 2 ( m )- 
 Now, however, judgment is signed for debt and costs, and 
 interest runs from that time, unless an order is made to the 
 contrary (h). 
 
 The five rules 11, 12, 13, 14, and 16, exhaust the express 
 requirements of the Rules of the Supreme Court with 
 regard to the issue and form of writs of execution. There 
 are, however, other rules with respect to the same subject- 
 matter which demand equal consideration. 
 
 The practice on the actual issue of a writ of execution is "Writs of 
 thus summarized in a leading work on procedure : " The how issued. 
 writ is issued by taking to the office at the Royal Courts 
 the judgment or order, or an office copy of it, together with 
 a prsecipe duly filled up and signed, as required by Rule 12, 
 O. XLIL, and stamped with a 5s. impressed stamp, and 
 a copy of the writ it is proposed to issue duly filled up. 
 
 "The copy writ is sealed and returned to the party 
 issuing it out. It is not now the practice to file a copy" (i). 
 
 Before the Judicature Act, the writ of execution issued Issue of the 
 from the Court where the record was; for the record being 
 
 the foundation of the writ, it was impossible that it should record was. 
 
 issue from any other place (k) . This was of great import- 
 
 ance when each of the Courts had its separate jurisdic- 
 
 tion (/); but it is no longer of much practical consideration, 
 
 for the records of all Divisions of the High Court are in 
 
 the same place the Central Office. At the same time, for 
 
 (g] Schroeder v. Ckugh, 46 L. J. of this statement will be found in 
 
 C. P. 365. See West v. West, 17 the two cases referred to in 2 Wms. 
 
 L. R. Ir. 49. Saund. 5th ed. 38 (2). In both 
 
 (K) Pyman v. Surt, W. N. 1884, cases execution was held to issue, 
 
 100; Landowners' West of England, not from the Court where the judg- 
 
 c. Co. v. Ashford, 33 W. E. 41 ; ment had originally been obtained, 
 
 Re London Wharfage, $c. Co., 54 but from the King's Bench, whither 
 
 L. J. Ch. 1137. the record had been removed by 
 
 (t) Arch. Pr. 795. writ of error. Vicars v. Haydon, 
 
 (k) 2 Wms. Saund. 5th ed. 38 (2). Cowp. 843 ; Cowperthwaite v. Owen, 
 
 (0 Good examples of the truth 3 T. R. 657 ; Tidd Pr. 994 et seq. 
 
 E. D
 
 34 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Modern 
 equivalent for 
 the roll. 
 
 Book I. the reason that much of our present practice is founded on 
 ~ a recognition of the principles relating to the record, they 
 
 demand some explanation. 
 
 The record. Formerly, the term "the record" had, in common law 
 process, a strictly technical sense. It was used to denote 
 the parchment roll on which was entered the whole of the 
 pleadings in the action, the verdict, and the judgment. 
 The record was kept in the office established for the 
 purpose in each of the courts (m). The record did not 
 include orders on petitions or rules nisi and absolute (n). 
 Writs of execution, strictly so called, could only issue if 
 justified or authorized by the record. 
 
 At the present time, there is no judgment roll or record 
 in the sense in which the term was formerly used. Judg- 
 ment is entered, as we have seen, in a book kept for the 
 purpose by the proper officer, and at the same time a copy 
 of the pleadings is delivered to him (o). 
 
 Further, writs of execution are now issuable, not only 
 upon such judgments as are strictly of record, but also 
 upon orders of the Court ; for, as we have seen, by 0. XLIL 
 r. 24, it is provided that : 
 
 " Every order of the Court or a Judge in any cause or 
 matter may be enforced against all persons bound thereby, 
 in the same manner as a judgment to the same effect." 
 
 The writ of execution must follow or correspond with 
 the record, now represented by the judgment or order upon 
 which it is issued. A divergence had, formerly, disastrous, 
 if not fatal, effects upon the execution attempted to be 
 levied. In practice, the provisions of rules 11 and 12, 
 above quoted, prevent almost entirely any material variance 
 
 0. XLII. 
 r. 24. 
 
 Orders en- 
 forced as 
 judgments. 
 
 Writ must 
 follow the 
 record. 
 
 (m) 3 Steph. Com. 7th ed. 666, 
 and note (<?). The older practice 
 of entering judgment on the issue 
 roll, thenceforward called the judg- 
 ment roll, will be found in Tidd's 
 Practice, p. 931, in detail. The 
 necessity of entering judgment on 
 the roll before issuing execution 
 
 was abolished by C. L. P. Act, 1852, 
 s. 206. 
 
 (n) A rule is not a record, but 
 only a remembrance, not entered 
 on the rolls of Court. Tidd Pr. 
 p. 491. 
 
 (0} O. XLI. r. 1.
 
 WRITS OF EXECUTION GENERALLY. 35 
 
 between the judgment or order and the writ. Under Cfcap.i. 
 these rules the officer's duty is to inspect the proposed Sec ' 2 ("*) 
 writ, and to compare it with the judgment which is 
 produced to him (p). If the period from the entry of the 
 judgment has not elapsed so as to entitle the creditor to 
 execution, there is express power given to the officer to 
 deal with the matter and refuse to issue the writ. There 
 can be no doubt that, although, perhaps, the officer would 
 not be liable for a breach of duty, in not preventing an 
 abuse of the process of the Court, he has a supervising 
 power to insist upon all due formalities being preserved. 
 
 In the face of these provisions, it is difficult to see how 
 any material variance in practice could occur. At the 
 same time, it is a possible contingency, and the most 
 salient points should be kept in view. It is laid down in Variation as 
 somewhat similar terms in books of practice, that the writ par 
 of execution must pursue the judgment as to parties, or 
 show the reason why it does not (<?) 
 
 Another expression of the rule is, that no person can 
 take the benefit of, or be affected by, a judgment until he 
 is brought on to the record. 
 
 This is a most important rule, as its non-observance 
 invalidates any execution. The most frequent cases which 
 have occurred under the rule have been those where execu- 
 tion has been issued against one of several joint defendants 
 against whom judgment has been signed ; the execution 
 ought in all such cases to be joint, notwithstanding the 
 death of one of the plaintiffs, and although the levy might 
 be several (r). This is, of course, subject to the particular 
 
 (p) At one time, errors resulted (q) Ch. Arch. 796 ; Dan. Ch. 
 
 from the practice of not entering Pr. 828. 
 
 up the judgment before the exe- (r) See the cases mentioned in 
 
 cution issued, e.g., where the prac- Rolle's Abr. 888; 2 Wms. Saund. 
 
 tice was to enter an incipitur in the 237 ; Penoyer v. Brace, 1 Ld. 
 
 master's book, and issue execution Raym. 244 ; Clarke v. Clement, 6 
 
 thereupon. Phillips v. Birch, 4 T. R. 525, p. 527; Newton T. Eowe, 
 
 Mann. & Gr. 403. 8 Sc. N. R. 26. 
 
 D2
 
 36 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. provisions of 0. XLIL r. 10, as to enforcement of judg- 
 ments against a firm (s). 
 
 Change of In all cases where the parties to the judgment or order 
 
 shown on have been changed before execution issued, the writ should 
 writ - disclose how it is that the new parties have come upon the 
 
 record. Strictly, this should be shown in the body of 
 the writ, after the usual recital of the judgment, by another 
 recital stating the order by which such change was brought 
 about, where it is embodied in an order, and by an expla- 
 nation of the circumstances where it is not. Care is neces- 
 sary in filling up the prcecipe, as well as the writ proposed 
 to be issued. 
 
 Alleged ex- There is said to be an exception to this rule where an 
 u3k r e action is, under statute, brought by or against an individual 
 in the place of or representing a body of persons (t). So 
 that, although judgment be signed by or against such 
 person, execution can issue at the suit of the body of 
 persons or against their property. The authority quoted 
 for this alleged exception, however (u), is a case which has 
 been strongly dissented from (a?), and, besides, does not 
 seem to support the proposition. The writ of execution 
 there was issued against the representative individual, and 
 was not challenged, so that it was presumably in proper 
 form, and the Court did no more than to direct the sheriff 
 not to levy upon his personal effects. 
 
 Misnomer in In illustration of the rule that the writ must correspond 
 ju gmen . ^^ ^ reco^ ft ma y fa stated that the older authorities 
 go to a great extent in technicality. For example, accord- 
 ing to them, if there is a misnomer in the judgment it 
 should be precisely followed in the execution (y] ; but there 
 is probably no authority that so insignificant a variation 
 as a correction of name would invalidate the writ. 
 
 (*) Supra, p. 27. ( x ) Cobbett v. Wheeler, 3 El. & 
 
 (0 Ch. Arch. 796. El. 358. 
 
 (u) Wormwell v. Hailstone, 6 (y) Fisher v. Magnay, 6 Sc. N. S. 
 
 Bing. 668. 588. See Beeves v. Slater, 7 B. & 
 
 C. 486.
 
 WRITS OF EXECUTION GENERALLY. 37 
 
 Where the writ is for the recovery of money, it must be Chap. I. 
 conformable with the judgment in respect to amount, that Sec - 2 ( m )' 
 is to say, it should direct the levy of the whole sum due Writ to . con - 
 under the judgment or order (z) ; or where by any means, judgment as 
 such as part payment, the amount recovered has been toamouilt ' 
 reduced, there should be a direction to the sheriff indorsed 
 on the writ instructing him as to the sum which he has to 
 levy. A mere error in this respect is not very material, for 
 the person pursuing the execution can always amend his 
 writ and indorsement (a). Any question as to the amount 
 for which execution may be issued or levied can be settled 
 on summons (b). 
 
 If by mistake execution is issued for too little, the person 
 pursuing it may issue execution for the balance due after 
 having obtained leave from the Court (c) . 
 
 If a writ of execution is issued when it ought not to be, Irregular or 
 or where it is irregular in a material particular, an appli- 
 cation (d) can be made by summons or motion, stating the 
 several objections intended to be insisted upon (<?), to set 
 aside the execution (/). The order will, so far as is prac- 
 
 (z) Webber \.Hutchins, 1 Dowl. 414; Ee London Wharfage, etc. Co., 
 
 N. S. 95 ; and Cobbold v. Chilver, 1 54 L. J. Ch., p. 1138. 
 
 Dowl. N. S. 726. Both these (d) Formerly, such applications 
 
 decisions are good instances of the were made where the debtor had 
 
 strictness of procedure, even at a become bankrupt, and execution 
 
 late date. Now, probably, unless was nevertheless pursued against 
 
 there was some ulterior injustice him (Davis v. Shapley> 1 B. & 
 
 threatened, these cases would not Ad. 54), and where questions 
 
 be followed. Sherwood v. Clark, arose between assignees in bank- 
 
 15 M. & W. 764 ; Arnell v. Weath- ruptcy and the execution cre- 
 
 erby, 3 Dowl. 464. ditors. (Backhotise T. Mellor, 28 
 
 (a) M'Cormack v. Melton, 1 A. & L. J. Ex. 141). Applications for 
 E. 331. such purposes as these would now 
 
 (b) Formerly on rule nisi. See be disposed of in the bankruptcy. 
 Evans v. Pugh, 2 Dowl. 360. All (e) O. LXX. r. 3. Baillie v. 
 persons interested, e.g., other exe- Goodwin $ Co., 33 Ch. D. 604. As 
 cution creditors, should be served to costs of non-compliance with 
 with the summons. Hammond v. this rule, see form of notice of 
 Nairn, 9 M. & "W. 221 ; 1 Dowl. motion in Appendix, Form No. 15. 
 N. S. 351. (/) The old procedure by rule 
 
 (c) Hunt v. Passmore, 2 Dowl. nisi has not, in this case, been ex-
 
 38 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Execution 
 issued in bad 
 faith. 
 
 Action for 
 irregularity. 
 
 Irregularity 
 can be reached 
 by amend- 
 ment. 
 
 Execution 
 issued singly 
 on joint 
 judgment 
 irregular. 
 
 ticable, restore the parties to their position prior to the 
 execution having been issued. The Court will set aside 
 execution issued in bad faith; for example, in breach of an 
 agreement not to do so (g). 
 
 In all cases where the execution issued is wholly wrong, 
 and not merely irregular, the person against whom it has 
 been issued has a right to have it set aside, and the Court 
 has no jurisdiction to prevent an action of trespass for the 
 wrong (fi) ; but where the proceedings are merely irregular, 
 the Court has a discretionary power of imposing upon the 
 applicant just and equitable terms as a condition of its 
 interference, and will, therefore, not allow an action to be 
 brought in respect of the informal execution (') . 
 
 At the present time, however, the Court has large 
 powers of amendment of all proceedings, including 
 writs (/), and regards the substance, rather than the form, 
 of the remedy granted. An application to discharge an 
 execution for irregularity, where no actual injustice has 
 been done, could seldom be made with effect. 
 
 Take, as an instance, judgment recovered jointly against 
 A. and B., and consequent writ of fi. fa. directed to the 
 sheriff, commanding, in the body thereof, to levy of the 
 goods and chattels of A. This is an irregularity which, at 
 one time, would probably have led to the discharge of the 
 writ, as not agreeing with the record (k) ; but now-a-days 
 the mere difference between this statement appearing on 
 
 pressly abrogated ; but 0. LXX. 
 shows a summons to be the proper 
 course. See Appendix, infra, Form 
 No. 15. 
 
 (ff) See Pinches v. Harvey, 1 Q. B. 
 868; 1 Ga. & Dav. 236; Barlow v. 
 Hall, 1 Anstr. 461 ; Parry \. The 
 Great Ship Company, 4 B. & S. 556 ; 
 Cash v. Wells, 1 B. & Ad. 375. For 
 a case where execution was issued 
 in bad faith, and the solicitor issu- 
 ing it was ordered to pay costs, see 
 In re Commonwealth Land, $c.Co., Ex 
 
 parte HoUington, 43 L. J. Ch. 99. 
 
 (h) Modes v. Hull, 26 L. J. Ex. 
 265; Sartlett v. Stinton, L. B,. 1 
 C. P. 483. 
 
 (i) Lorimer v. Lule, 1 Chit. Rep. 
 134 ; and see generally, Ch. Arch. 
 14th ed. 831. 
 
 (j) See form of summons to 
 amend, Appendix, Form No. 8. 
 
 (k) See authorities in note (A), 
 supra, and Newton v. Howe, 8 Sc. 
 N. E. 26 ; Phillips v. Birch, 4 
 Man. & Gr. 403.
 
 WRITS OF EXECUTION GENERALLY. 39 
 
 the face of the writ, or in a direction to the sheriff on the Chap. I. 
 back of it, where such a direction is most usually placed, is Sec - 2 (ill). 
 not such an irregularity as would justify an application to 
 the Court. 
 
 The effect of variation between the writ and the judg- 
 ment upon the liability of persons doing acts under it, will 
 be further discussed in the next Chapter ; but as a general 
 principle, the judgment being the conclusive fact against 
 the creditor, the writ was only so far conclusive as it 
 accorded therewith. The writ is not a justification, except 
 perhaps to the sheriff, for acts done beyond those war- 
 ranted by the judgment. 
 
 With these remarks as to compliance of the writ with 
 the file or record, we close the discussion, in this place, of 
 formalities relating to the mere issue of the writ. 
 
 SUB-SECT, (iv). Stay of Execution. 
 
 By sub-sect, (b) of rule 17, " The Court or a Judge may, O. XLII. 
 at or after the time of giving judgment or making an order, r ' ^ '* 
 stay execution until such time as they or he shall think fit." execution. 
 
 The rule of which this is a sub-section applies in terms 
 to writs oifi.fa. and elegit only, and the application under 
 it must be made by motion to the Court before which the 
 matter has been recently tried, or by motion or summons 
 supported by affidavit (/). The Court has, however, 
 always exercised a control over its own process, and sub- 
 rule (b) may be said to be applicable to all executions on 
 judgments and orders of all kinds. The Court, for 
 example, always exercised a wide discretion in moulding 
 the execution in ejectio firmce, so as to confine it to such 
 lands only as the plaintiff had legally recovered (m). 
 
 There are cases where a stay of execution can be Stay on 
 obtained by applying for the exercise of the equitable 
 
 (1) Vide infra, Appendix, for Forster \. Wandlass, 1 T. E,. p. 118, 
 
 form of summons, Form No. 9. in notis ; Roe d. .Blair v. Street, 2 
 
 (m) Vide infra, Chap, on the "Writ Ad. & El. 329. 
 of Possession, p. 102 (h). Doe d.
 
 Book I. 
 
 Equitable 
 mortgagee 
 claiming a 
 
 stay. 
 
 O. XLII. 
 
 r. 27. 
 
 jiudita querela 
 done away 
 with. 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 jurisdiction of the Court. Where, for example, an action 
 for administration has been commenced, a judgment cre- 
 ditor will be restrained from proceeding to execution, 
 unless he has already issued the writ, and stands, therefore, 
 in the position of a creditor who has obtained security (n). 
 Again, where the property over which the legal execution 
 has been attempted to be enforced is the subject of an 
 equitable mortgage in a third person, he can intervene, 
 and on motion or summons ask that execution be stayed. 
 Before the Judicature Act, it would have been necessary, 
 in such a case, for him to have taken separate proceedings 
 by filing a bill in Chancery claiming an injunction. Now, 
 however, there is no objection to his proceeding in the 
 manner suggested, his application being in the nature of 
 an application pro interesse suo, upon which an inquiry or 
 issue can be directed. It depends entirely upon the 
 nature of the equitable claim which the mortgagee alleges, 
 whether he should proceed by separate action and appoint- 
 ment of a receiver, or in the summary method above 
 suggested (o). 
 
 By rule 27, "No proceeding by audita querela shall here- 
 after be used, but any party against whom judgment has 
 been given may apply to the Court or a Judge for a stay of 
 execution, or other relief against such judgment, upon the 
 ground of facts which have arisen too late to be pleaded, 
 and the Court or Judge may give such relief and upon such 
 terms as may be just." 
 
 The process known as audita querela was an action (called 
 an equitable action) which lay for a person who was in exe- 
 cution, or in danger of being so, when he had matter to 
 show that such execution should not have issued or should 
 not issue against him (p). 
 
 () See Eanken y. Hanvood, 10 cially with respect to land, is much 
 
 Jur. 794. more perfect in the Chancery Divi- 
 
 (o) Tide infra, Chap, on Equitable sion than in the Queen's Bench 
 
 Execution. The machinery for Division, 
 
 trying questions of priority, spe- (p) Co. Litt. 290 b ; notes to
 
 WE1TS OF EXECUTION GENERALLY. 41 
 
 The application for an order under this rule must be Chap. I. 
 made on motion or summons, supported by affidavit. For Sec - a ("0 
 form of summons, see Appendix (</). 
 
 The bankruptcy of the person against whom execution Bankruptcy 
 has been issued does not of itself stay proceedings there- a^j^ 611 * 
 under. It will be seen in the course of this work in what 
 stage of his process to execution the creditor becomes 
 secured, and, therefore, when it is to his advantage to go on. 
 The Court has, however, jurisdiction under sect. 10 of the 
 Bankruptcy Act, 1883 (r), at any time after the presenta- 
 tion of a petition, to stay any execution or other proceeding, 
 or allow it to continue on such terms as may be just. 
 
 There are, in like manner, provisions in the Companies 
 Act, 1862, which provide, in effect, that no execution shall 
 be issued or proceeded with, except by leave of the Court, 
 against a company in liquidation (s). The occasions on 
 which the Court will permit the execution to be proceeded 
 with, and the conditions imposed upon the parties, are a 
 matter of company law (t). 
 
 By rule 16 of 0. LYIII., "An appeal shall not operate O. LVIII. 
 as a stay of execution or of proceedings under the decision r ' " 
 appealed from, except so far as the Court appealed from, or execution on 
 any Judge thereof, or the Court of Appeal, may order ; and a PP eal - 
 no intermediate act or proceeding shall be invalidated, ex- 
 cept so far as the Court appealed from may direct." 
 
 By rule 17 of the same Order : " Wherever under these o. LVIII. 
 Rules an application may be made either to the Court below r ' 
 or to the Court of Appeal, or to a Judge of the Court to what Court 
 below or of the Court of Appeal, it shall be made in the made - 
 first instance to the Court or Judge below." 
 
 In no Court does an appeal of itself operate as a stay of 
 
 Turner v. Davies, 2 "Wms. Saund. (s) 25 & 26 Viet. c. 89, ss. 85, 
 
 439. For a better and fuller des- 87, 163. See Appendix, infra, 
 
 cription, see the note to Newton T. Forms, Nos. 11, 12. 
 Howe, 7 Man. & Gr. p. 334. (t) See Lind. 1275 ; Buckley on 
 
 (q) Infra, p. 397, Form No. 10. Companies ; Chadwick Healey's 
 
 (r) 46 & 47 Viet. c. 52. Comp. Law and Pr. p. 534.
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Construction 
 of these two 
 rules. 
 
 The applica- 
 tion to stay. 
 
 Terms of 
 order on being 
 granted. 
 
 proceedings (). The true construction of these two rules 
 is, that there is an independent jurisdiction in the Court 
 of Appeal to stay proceedings pending an appeal, but the 
 Court is not to exercise that jurisdiction until an applica- 
 tion to the same effect has been made to, and decided upon, 
 by the Court below. The application to the Court of 
 Appeal is not by way of appeal (#). 
 
 Where, however, an action for an injunction against 
 parting with trust funds was dismissed, the Court of Appeal 
 granted an injunction pending an appeal, the Court below 
 having no jurisdiction so to do (y). 
 
 The application for a stay, except when made, in the 
 events mentioned, to the Court of Appeal, is made by way 
 of summons before a master in the Queen's Bench Divi- 
 sion (z) ; by motion on notice in the Chancery Division. It 
 must be supported by affidavit, which must show special 
 grounds for the application. Evidence that the respondent 
 to the appeal will be unable to repay the sum payable to 
 him under the judgment or order appealed from, forms a 
 special ground ; the order to stay is not obtainable as of 
 right on bringing the amount in dispute into Court (a). 
 
 It is clear that no stay of execution will be granted to 
 enable the unsuccessful party to decide whether he will 
 appeal (b). 
 
 Where special grounds are shown and the application 
 granted, the terms of the order will be that the appellant 
 
 (w) Lord Esher in Ex parte Re- 
 gistrar of Croydon County Court, 17 
 Q. B. D. 389. 
 
 (x) Cropper \. Smith, 24 Ch. D. 
 305. See Goddard v. Thompson, 47 
 L. J. Q. B. 382. But where the ap- 
 peal is an appeal to the House of 
 Lords the application should always 
 be made to the Court of Appeal. 
 Hamill v. Lilley, 19 Q. B. D. 83. 
 
 (y) Wilson v. Church, 11 Ch. D. 
 576 ; Otto v. Lindford, 18 Ch. D. 
 394. And, pending appeal to the 
 
 House of Lords, Wilson v. Church 
 (No. 2), 12 Ch. D. 454 ; Polini v. 
 Gray (2), 12 Ch. D. 439. 
 
 (z) Oppert v. Beaumont, 18 Q. B. 
 D. 435. See Republic of Peru v. 
 Weguelin, 24 W. E. 297. See form 
 of notice of motion or summons, 
 Appendix, Nos. 13, 14, infra, p. 
 399. 
 
 (a) Barker v. Lavery, 14 Q. B. D. 
 769; The Annot Lyle, 11 P. D. 114. 
 
 (b) Webber v. L. B. $ S. C. Rail. 
 Co., 51 L. J. Q. B. 154.
 
 WRITS OF EXECUTION GENERALLY. 43 
 
 pay the sum recovered to the respondent on his giving Chap. I. 
 security to return it if unsuccessful on the appeal, or that 8ec - 2 ( iv )- 
 the appellant pay the sum into Court, whichever the respon- 
 dent prefers. The costs recovered must be paid to the 
 solicitors, on an undertaking to return them if unsuccess- 
 ful (c). 
 
 The costs of the application to stay execution must be Costs of the 
 paid by the applicant. This is on the ground that he guy. * 
 comes to the Court to ask a favour (d). But in a proper 
 case, for example, where the respondent gets some advan- 
 tage by the terms on which the order to stay is made, the 
 costs will be made costs in the appeal (e). 
 
 There is a special rule dealing with stay of execution on O. LIX. r. 14. 
 appeal from an inferior Court. By rule 14 of 0. LIX., Sta 7 f 
 " The appeal shall not operate as a stay of proceedings under appeal from 
 the decision appealed from, unless the inferior Court shall so 
 order, or unless within ten days after the decision a deposit 
 shall be made of, or security given to the satisfaction of 
 such inferior Court for, a sum to be fixed by the said Court, 
 not exceeding the amount of the money or the value of the 
 property affected by the judgment, order, or finding ap- 
 pealed from." 
 
 SUB-SECT, (v). Limitation of Time within ichich, after the 
 Judgment or Order, Execution may Issue. 
 
 Rule 22. "As between the original parties to a judgment 0. XLII. 
 or order, execution may issue at any time within six years ^ xecution 
 from the recovery of the judgment or the date of the may issue 
 
 wthin sx 
 
 , ,. 
 
 order. years> 
 
 Before the passing of the C. L. P. Act, 1852, execution i S8ue O f 
 must have been issued within a year and a day. If it ^J^ 
 
 and a day. 
 
 (c) Merry v. Nickalls, 8 Ch. 205; Ch. D. 18. 
 
 Morgan v. Elfor.d, 4 Ch. D. 388. (d) Merry v. Nickalls, 8 Ch. 205. 
 
 For somewhat similar terms where (e) Adair v. Young, 11 Ch. D. 
 
 payment out of Court had been 139; Eames v. Hacon, W. N. 
 ordered, see Bradford v. Young, 28 (1881), 4.
 
 44 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Irregular 
 execution on 
 judgment 
 more than six 
 years old. 
 
 0. XLII. 
 r. 23. 
 
 Leave to issue 
 after six 
 years. 
 
 0. LXIV. 
 r. 13. 
 One year's 
 delay in pro- 
 ceeding. 
 
 Ultimate 
 limitation of 
 execution on 
 a judgment. 
 
 were not so issued it was necessary to sue out a writ of 
 scire facias to have the benefit of the judgment (/). 
 
 By analogy to the older practice, it may be stated that 
 if execution were to be issued on a judgment more than 
 six years old, without any application or order under the 
 next rule, such execution would not necessarily be a nullity, 
 though it would be set aside as wholly irregular (g). 
 
 By 0. XLII. r. 23 (a), where six years have elapsed 
 since the judgment or date of the order, the party alleging 
 himself to be entitled to execution may apply to the Court 
 or a judge for leave to issue execution accordingly (Ji). 
 
 It follows from the two last-mentioned rules, that exe- 
 cution may issue at any time within six years, but that 
 after that time leave is necessary. The writ of execution 
 may in all cases issue without notice to the execution 
 debtor, notwithstanding the provisions of 0. LXIV. r. 13 ; 
 by which, "In any cause or matter in which there has been 
 no proceeding for one year from the last proceeding had, 
 the party who desires to proceed shall give a month's 
 notice to the other party of his intention to proceed. A 
 summons on which no order has been made shall not, but 
 notice of trial, although countermanded, shall, be deemed a 
 proceeding within this Rule." 
 
 The reason why this rule does not apply to writs of exe- 
 cution is stated to be that the word "proceeding" therein 
 refers to a proceeding "towards and not after" judgment (&'). 
 
 The limitation of time, within which judgment can be 
 enforced by execution, is imposed by sect. 8 of the Eeal 
 Property Limitation Act, 1874 (K), which enacts that no 
 action or suit or other proceeding shall be brought to 
 recover any sum of money secured by any mortgage, judg- 
 
 (/) Co. Lit. 290 b; notes to 
 Underhill v. Devereux, 2 Saund. 68. 
 See note to sect. 128, Day's Common 
 Law Procedure Acts, p. 148. 
 
 (ff) Blanehenay v. Hurt, 4 Q. B. 
 707 ; Goodtitle \. Sadtitle, 9 Dowl. 
 1009. 
 
 (A) For form of notice of motion 
 or summons, see Appendix, infra, 
 Form No. 4. 
 
 (i) Snow and Winstanley's An- 
 nual Practice, 394. 
 
 (*) 37 & 38 Viet. c. 57.
 
 WRITS OF EXECUTION GENERALLY. 45 
 
 ment, or lien, or otherwise charged upon, or payable out Chap. I. 
 of, any land or rent at law or in equity, or any legacy, Sec - 2 (*) 
 but within twelve years next after a present right to 
 receive the same shall have accrued to some person capable 
 of giving a discharge for or release of the same, unless in 
 the meantime some part of the principal money, or some 
 interest thereon, shall have been paid, or some acknowledg- 
 ment of the right thereto shall have been given in writing, 
 to the person entitled thereto, or his agent ; and in such 
 case no such action, or suit, or proceeding, shall be brought 
 but within twelve years after such payment or acknowledg- 
 ment, or the last of such payments or acknowledgments, if 
 more than one was given. 
 
 Payment on account, or payment of interest, or acknow- Leave to issue 
 ledgment, prevents the operation of the twelve years' limit. afte ^P a 7- 
 The judgment creditor may, therefore, at any time, even account, &c. 
 after the expiration of twelve years from the date of the 
 judgment or order, apply, on the ground that his judgment 
 has been kept alive by such payment, interest, or acknow- 
 ledgment, for leave to issue execution. In order to keep 
 alive the judgment or order for more than twelve years 
 where no payment or acknowledgment has been made, the 
 judgment creditor should, before the expiration of that 
 period, bring an action upon the judgment, not in the 
 nature of an action of scire facias, but an ordinary action, 
 in which, unless some intermediate defence has arisen, he 
 will obtain judgment, to which the statute and rule 22 will 
 again apply (/). 
 
 The application for leave must be supported by affidavit, Practice, 
 and the proceedings are the same as those to which we 
 have already referred. A form of notice of motion or 
 summons will be found in the Appendix (m). 
 
 By rule 20 of 0. XLIL, " A writ of execution (n), if Renewal of 
 
 (1} See, for authorities on the () Note that this only extends 
 
 section, Chit. Stat. ; Darby & Bos. to what is included in the term by 
 
 Statutes of Limitation, p. 117. rule 8, supra, p. 20. 
 
 (m) Infra, Form No. 4, p. 394.
 
 46 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 unexecuted 
 writ of 
 execution. 
 
 Evidence of 
 renewal. 
 
 The effect of 
 the writ con- 
 tinuing for 
 one year only. 
 
 unexecuted, shall remain in force for one year only from its 
 issue, unless renewed in the manner hereinafter provided ; 
 but such writ may at any time before its expiration, by 
 leave of the Court or a Judge, be renewed by the party 
 issuing it for one year from the date of such renewal, and 
 so on from time to time during the continuance of the 
 renewed writ, either by being marked with a seal of the 
 Court bearing the date of the day, month, and year of 
 such renewal, or by such party giving a written notice of 
 renewal to the sheriff, signed by the party or his solicitor, 
 and bearing the like seal of the Court ; and a writ of exe- 
 cution so renewed shall have effect and be entitled to 
 priority according to the time of the original delivery 
 thereof." 
 
 The application may be made in the first instance ex 
 parte, and upon evidence showing the grounds thereof. 
 Notice of renewal must be given to the sheriff (o). 
 
 By rule 21 of 0. XLII., " The production of a writ of 
 execution, or of the notice renewing the same, purporting to 
 be marked with such seal, as in the last preceding rule 
 mentioned, showing the same to have been renewed, shall 
 be sufficient evidence of its having been so renewed." 
 
 Before the C. L. P. Act, 1852, ss. 124, 125, and the 
 last-mentioned rules 20 and 21, replacing those sections, a 
 writ of execution returnable immediately, once having been 
 issued, could be executed at any time. There was, of 
 course, no necessity for a sc. fa. 
 
 From the four rules of 0. XLII., referred to in this 
 sub-section, it appears that although execution may issue 
 at any time within six years without leave, and after six 
 years within certain limits with leave, a writ of execution 
 once issued runs only for one year, and the further 
 period secured by renewals. The advantage to be obtained 
 by renewing a writ seems to be mainly a saving of expense. 
 For although, apparently, an execution creditor could 
 
 (o) See Appendix, infra, Form No. 16.
 
 WRITS OF EXECUTION GENERALLY. 47 
 
 within the six years issue without leave a new writ of Chap. I. 
 execution after lapse of the old one, he would have to Sec " 2 (v) ' 
 obtain the return of the latter before doing so. 
 
 By rule 19 of 0. XLIL, "A party who has obtained Fourteen 
 judgment or an order, not being a judgment for payment 
 
 of money or costs, or for the recovery of land, may issue exec ution 
 execution in fourteen days, unless the Court or a Judge land or 
 shall order execution to issue at an earlier or later date, n >nejr " 
 with or without terms." 
 
 This rule appears to extend to all kinds of execution on 
 judgments for delivery of specific chattels. A writ of 
 delivery is an example. Taking this rule in conjunction 
 with rule 8, supra, and bearing in mind the difficulty of its 
 construction, it would appear to preclude all process for 
 contempt being issued until the expiration of the prescribed 
 fourteen days, except where the contempt consists in non- 
 payment of money or non-delivery of land (p). 
 
 SUB-SECT, (vi). Order of Issue of Writs of Execution. 
 
 By rule 29," Nothing in this Order shaU affect the O. XLIL 
 order in which writs of execution may be issued." Order in 
 
 It is suggested that this rule requires judicial eluci- which writs 
 dation! There is no doubt that at law a judgment * 
 
 . Meaning of 
 
 creditor could issue simultaneously all writs of execution this rule. 
 to which the judgment entitled him (q). When, however, 
 those writs were of different kinds, such as a fi. fa. and an 
 elegit, and they came to be put into execution, he was 
 bound to elect on which of those he had issued he would 
 proceed. His rights, in case of there being a deficiency on 
 the execution, were affected considerably, according to 
 which of the two writs he had enforced. This matter will 
 be considered in a subsequent chapter. The question 
 arising for decision, where several writs of execution have 
 
 (p) Note, however, the terms of 86 ; Lewis v. Morris, 2 Cr. & M. 
 
 rule 28. 712. See also Smith v. Johnson, 2 
 
 (q) Foster v. Jackson, Hob. 52 ; C. M. & R. 350. 
 Hodgkinson v. Whalley, 2 Cr. & Jer.
 
 48 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 At common 
 law. 
 
 The limita- 
 tion to the 
 old rule. 
 
 been issued, has always been, whether the first writ had or 
 had not been executed ; the decisions are not on the right 
 to issue the writs together (r). 
 
 SECT. 3. CHANGE OF PARTIES BY DEVOLUTION OF 
 INTEREST. 
 
 At common law, by the death or the devolution of 
 interest of any of the parties to an action, it abated, or 
 ceased as a valid proceeding (s) . Whether the party who 
 died or whose interest devolved was plaintiff or defendant, 
 the same consequence of abatement followed. If, before 
 judgment, a plaintiff died, whatever his cause of action 
 may have been, the action itself was at an end ; if his 
 executors had a right of action, they might begin de novo, 
 but the original action was dead (s). 
 
 This general rule was subject to limitations rather than 
 exceptions in certain cases, where one of several plaintiffs 
 or one of several defendants died pending the action. 
 These cases, which are admirable illustrations of the stiff- 
 ness of the old common law procedure, are commented 
 on in the notes to Underbill v. Devereux (t). The decisions 
 quoted in these notes are still useful, as the authorities on 
 which all applications on change of parties by devolution 
 of interest pendente lite are made under the now-existing 
 practice. 
 
 It may be mentioned that, prior to the Jud. Acts, some 
 cases, in which abatement of the action produced gross 
 injustice, had been provided for by statute ; for example, 
 where the cause of action survived to the survivors of co- 
 plaintiffs or against the survivors of co-defendants, the 
 writ did not abate (u). 
 
 (r) Edmond v. Ross, 9 Price, 6 ; 
 Dicas v. Warne, 10 Bing. 341 ; 2 
 Dowl. 762 ; 3 M. & Sc. 814. For 
 true ground of decision, see Andrews 
 v. Saunderson, 1 H. & N. 728. 
 
 (s) Notes to Underhill v. Devereux, 
 2Saund. 72d; 2Wms.Saund. 230. 
 
 (it) 2 Wms. Saund. 234. 
 
 (u) 8 & 9 Will. 3, c. 11, s. 7, re- 
 enacted by C. L. P. Act, 1852,
 
 WRITS OF EXECUTION GENERALLY. 49 
 
 As soon, however, as judgment had been given, the Chap. I. 
 purpose of the action had been attained, and there was not, lec ' 3l 
 
 in case of death, the same reason for its abatement. "We No abatement 
 find, therefore, that at common law the judgment itself merit, 
 was unaffected by change of interest in the parties ; but in Remedy by 
 
 j j_ e i ,1 i ' i , , P seire facias. 
 
 order to perfect the record in a real action, a writ of scire 
 facias might issue to enforce the judgment obtained, which 
 writ was, by the statute West. II. (13 Edw. I.), c. 45, 
 extended to judgments in personal actions (#). It was 
 impossible to obtain execution on a judgment, whether 
 signed before the death or devolution of interest or after- 
 wards (y), without having recourse to a writ of scire facias (z). 
 
 Suits in equity, like actions at law, abated, or as it was In equity, 
 called, became defective, by the death or devolution of 
 interest of the parties to them (a) ; but the remedy pro- 
 vided was more complete than at law, although there is no 
 doubt it was much more dilatory and expensive. Where the 
 interest or liability survived, effect was given to the prayer of 
 the original bill, or to the decree which had been obtained, by 
 new initiatory process, known as bills of revivor and sup- 
 plement. A sufficient description of this old procedure is 
 to be found in Daniell's Chancery Practice, where its cum- 
 bersome nature, even after the amendments introduced by 
 the Chancery Procedure Act of 1852 (i), is abundantly 
 shown (c). 
 
 The effect of change of parties by death, &c., in all 
 
 s. 136. The death being " sug- (a) For long note on change of 
 
 gested" upon the record. Tidd's parties generally, see Pemberton's 
 
 Practice, 1119; Day's C. L. P. Judgments and Orders, 91 et seq. 
 
 Acts, p. 153. (b) 15 & 16 Viet. c. 89. See 
 
 (x) See notes to Jeaffreson v. Pemberton on Revivor and Supple- 
 
 Morton, 2 ~Wms. Saund. 12. ment. 
 
 (y) Under 17 Car. 2, c. 8, vide (c) 1 Dan. Ch. Pr. 6th ed. 282, 
 
 infra, p. 51. specially note (y). There were ex- 
 
 (z) Penoyer v. Brace, 1 Ld. Raym. tensive powers of amendment of 
 
 244 ; Comb. 441 ; Earl v. Brown, 1 process in Chancery, but they did 
 
 Wils. 302 ; 2 Wms. Saund. 234, not apply to cases of the descrip- 
 
 248. tion now under discussion. 
 
 E. E
 
 50 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 0. XVII. 
 r. 1. 
 
 Change of 
 parties by 
 death, &c. 
 
 Four periods 
 when change 
 of parties 
 may occur in 
 an action. 
 
 actions in the High Court, has been considerably modified, 
 and forms the subject of 0. XVII., by rule 1 of which it 
 is provided that, " A cause or matter shall not become 
 abated by reason of the marriage, death, or bankruptcy of 
 any of the parties, if the cause of action survive or con- 
 tinue, and shall not become defective by the assignment, 
 creation, or devolution of any estate or title pendente lite, 
 and whether the cause of action survives or not, there 
 shall be no abatement by reason of the death of either 
 party between the verdict or finding of the issues of fact 
 and the judgment, but judgment may in such case be 
 entered notwithstanding the death." 
 
 In the subsequent rules of the Order, regulations are 
 made whereby the person upon whom an interest in the 
 subject-matter of the proceeding devolves, or against 
 whom any right of action survives, can come in as or be 
 made a party without the necessity of commencing a new 
 action. 
 
 0. XVII. does not apply where the enforcement of a 
 judgment already obtained is concerned, and only col- 
 laterally or incidentally in case of the enforcement of an 
 order as distinguished from a judgment. Where the 
 question is, who is entitled to enforce, or who is liable to 
 have enforced against him, any judgment or order, the rule 
 of Court applicable to the case, where there has been any 
 change of parties, is rule 23 of 0. XLII., to which we have 
 already referred (d). Of course where under the judgment 
 or order further proceedings must be taken before there is 
 an end of the matter a finis litlum and execution is also 
 due against one or other of the parties, an order can be 
 obtained attaining both ends at once (e). 
 
 In the course of an action, there are four different periods 
 in each of which a change or transmission of interest or 
 liability may have a distinct and different effect. 
 
 (d) Vide supra, p. 24. 
 
 (e) See Appendix, infra, Form No. 6.
 
 WRITS OF EXECITTION GENERALLY. 51 
 
 SUB-SECT, (i). Change of Parties taking place before Verdict. q * a ?.' I :... 
 
 o6C. o \\ 111]. 
 
 The first part of the above rule 1, 0. XVII., applies to Before 
 this case ; and there is, where the cause of action survives, verdict, 
 no abatement. 
 
 Such persons as are entitled or liable can become 
 or be made parties, and the procedure is regulated by 
 0. XVII. (/). 
 
 SUB-SECT, (ii). Change of Parties taking place after Verdict, After verdict, 
 
 but before Judgment. J3 
 
 This case is, again, in terms provided for by 0. XVII. 
 r. 1. In fact, for a considerable length of time, this 
 particular case has been provided for by statute. It was 
 early recognized as too flagrant an injustice to allow the 
 fruits of a verdict to be abstracted from the estate of the 
 successful party, merely by reason of his death, in such a 
 case, before judgment signed (g}. 
 
 SUB-SECT, (iii). Change of Parties taking place after Judg- After judg- 
 ment signed and before Execution issued. before execu- 
 
 Formerly, the practice at common law in this case was, 
 as has been stated, to issue a scire facias for the purpose 
 of obtaining the benefit of the judgment (7^) . Putting out 
 
 (/) Prior to the Judicature Act, great extent done away with ; be- 
 
 1873, a creditor whose debtor died cause, under R,. G-. 1853, r. 72, every 
 
 pendente lite might enter up judg- writ of execution bore date the day 
 
 ment against him notwithstanding on which it was issued. See Wins, 
 
 his death, and the judgment was on Executors, pp. 1002, 2001. 
 
 by relation a judgment of the first (g) The old practice was to enter 
 
 day of the term in which it was up judgment in the name of the 
 
 signed. Odes v. Woodward, 2 Ld. deceased person, as if he had been 
 
 Raym. 850 ; Bragner v. Langmead, living under 17 Car. 2, c. 8. See 
 
 7 T. E. 20; 1 Wins. Saund. 255. Tidd, 1119, and Westonv. James, 1 
 
 This result was altered by the Salk. 42. The practice was subse- 
 
 abolition of Terms, under sect. 26 quently regulated by C. L. P. Act, 
 
 of the Judicature Act, 1873. The 1852, s. 139. 
 
 effect of it, as regards execution, (A) Withers V.Harris, 2Ld.Raym. 
 
 had been for some years and to a 806. The scire facias was essential 
 
 E2
 
 52 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Transmission 
 of plaintiff's 
 interest. 
 
 of the question outlawry and attainder for high treason, 
 there are three events (i) on which a change of interest 
 necessitating a change of parties can take place voluntary 
 transfer of a party's interest in the judgment or order, 
 involuntary transfer thereof under the Bankruptcy Act, 
 1883, and death. Again, that change of interest may take 
 place, excepting as to voluntary transfer, with reference 
 either to the person entitled to the benefit of the judgment 
 or order, or to the person subject to it. 
 
 On any devolution of interest of the person entitled to 
 the benefit of the judgment, whether assignee, trustee in 
 bankruptcy, or personal representative, he must, before 
 proceeding, apply to the Court, under 0. XLII. r. 23, 
 for leave to issue execution. 
 
 The application may be made in the first instance ex 
 parte. The affidavit in support should show distinctly the 
 grounds upon which the application is made. The order 
 obtained is in the action, and no addition or change of 
 parties is, in cases of most executions, necessary (k). In 
 cases, however, of writs of possession, e leg 'it, and delivery, 
 it is specially important to recite the transmission of in- 
 terest, so as to show who are the parties obtaining the 
 benefit of the execution. In many cases, and where the 
 judgment or order which it is sought to enforce is inter- 
 locutory, it is advisable to apply at the same time for an 
 order for change of parties, and to carry on proceedings 
 under 0. XVII. r. 4 ; the order should, of course, in- 
 
 to the validity of the execution. 
 Heapy \. Parris, 6 T. R. 368. By 
 the judgment the verdict became a 
 debt of record. It -was, therefore, 
 immaterial of -what nature the ac- 
 tion had been. An executor could 
 enter up judgment after verdict in 
 an action of tort. Palmer v. Cohen, 
 2 B. & Ad. 966. 
 
 () Since the Married "Women's 
 Property Act, 1882. 
 
 (*) The record, as such, has lost 
 much of its virtue. The file of 
 
 proceedings takes its place, and 
 now it is not even necessary to 
 draw and file the usual order. Vide 
 supra, p. 23. Before the Judica- 
 ture Acts it appears always to have 
 been the rule, that where one of 
 several plaintiffs died after judg- 
 ment, the survivors or survivor 
 could proceed to execution without 
 scire fans*. 2 "Wins. Saund. 230. 
 See now, Darit v. Andrews, "W. Jf . 
 1884, 94.
 
 WKITS OF EXKCUTION GENERALLY. 513 
 
 elude leave to issue execution. 0. XVII. r. 4, is as fol- Chap. I. 
 lows : " Where, by reason of marriage, death, or bank- Seo ' 3 (iii) ' 
 ruptcy, or any other event occurring after the commence- o< XVII. r. 4. 
 ment of a cause or matter, and causing a change or 
 transmission of interest or liability, or by reason of any 
 person interested coming into existence after the com- 
 mencement of the cause or matter, it becomes necessary 
 or desirable that any person not already a party should 
 be made a party, or that any person already a party 
 should be made a party in another capacity, an order 
 that the proceeding shall be carried on between the 
 continuing parties and such new party or parties may be 
 obtained ex parte on application to the Court or a Judge, 
 upon an allegation of such change or transmission of 
 interest or liability, or of such person interested having 
 come into existence" (I). 
 
 The particular circumstances under which transferees 
 of the plaintiff's right can proceed do not form a part of 
 our subject, but of the special branch of the law concerned 
 with each case. The right of an assignee depends upon 
 the contract between him and the assignor, and is a part 
 of the law of vendor and purchaser, or of conveyancing. 
 The right of the trustee in bankruptcy is founded upon the 
 Bankruptcy Act. The right of an executor, an adminis- 
 trator, or an heir, should be discussed under the law of 
 wills, or the law of intestate succession. 
 
 In those cases where the order is obtained ex parte, and Costs of 
 in effect sets right the applicant's record, he should boar a l ) l )lication - 
 the costs (m) . 
 
 With reference to the transmission of interest of the TratiHmisHion 
 defendant, the first principle is, that the plaintiff cannot l ) n f t j r f t ndant ' 8 
 demand, nor can the defendant require him to accept per- 
 formance by any other person (ri). In the case of death of 
 defendant, even a few hours before execution issued, the 
 
 (I) See form of order in Appen- 606. 
 
 dix, Form No. 6, infra, p. 395. (ri) See same principle stated 
 
 (m) Mercery. Lawrence, 26 W. R. Poll. Cont. 208.
 
 54 
 
 CONCERNING EXECUTION ON JUDGMENTS. ETC. 
 
 Book I. 
 
 execution will be invalid (0). In the case of the defen- 
 dant's bankruptcy, proceedings to realize or enforce the 
 judgment or order, so far as it is for the payment of money, 
 against his property, are under special restrictions ; so far 
 as the judgment or order has a personal effect, it may or 
 may not be affected by the Bankruptcy Act. These are 
 particular cases which will be dealt with more conveniently 
 under the heads of each form of execution. When the 
 defendant dies still subject to the judgment or order, the 
 extent to which his representatives and his estate are 
 bound to fulfil the judgment or order, and when, therefore, 
 leave to issue execution against them can be obtained, is 
 matter for the special branch of law applicable to cases of 
 the like character. In whichever way the change of 
 interest of the defendant takes place, the application to 
 which the plaintiff may have a right, is made in the same 
 manner under 0. XLII. r. 23 (p). On the devolution of 
 liability of the person subject to the judgment or order the 
 application for leave to issue execution, and where neces- 
 sary for change of parties, is made on motion or summons, 
 and not ex parte (q). 
 
 Change of 
 parties after 
 writ of execu- 
 tion issued. 
 
 SUB-SECT, (iv). Change of Parties taking place after Execu- 
 tion issued, but before it is completed, or Return made. 
 
 If the estate or interest in the judgment or order (or in 
 the subject-matter thereof) of the party who has issued the 
 execution is transmitted, the writ does not abate. It has 
 been again and again laid down that a judicial writ does 
 not abate, which means that it does not cease to run by 
 reason of the death of the party issuing it (r). The writ 
 
 (o) Chick v. Smith, 8 Dowl. 337. 
 (p) Supra, p. 24. 
 
 (q) See form of order in Appen- 
 dix, infra, Form No. 6. 
 
 () In a case on an extent, the 
 \vrit being judicial, Croke held that 
 
 it did not abate, whether the death 
 of the plaintiff took place before or 
 after the inquisition. " For the 
 writ judicial to make execution 
 shall not abate, nor is abateable, 
 by the death of him that sues 
 it." Cleve v. Vere, Cro. Car. p.
 
 WRITS OF EXECUTION GENERALLY. 55 
 
 of execution is, however, a mandate to the sheriff or other chap. I. 
 officer ; and although that mandate is not revoked by the 8ec - 
 death of the party issuing it, if the person dies against 
 whom or against whose property it is directed before the 
 sheriff has begun its execution, different considerations 
 arise. The authorities on this point are somewhat con- 
 flicting. In an old case, where a writ of fi. fa. was in the 
 sheriff's hands for execution, but before the goods of the 
 defendant could be seized under it, the defendant died, the 
 seizure subsequently made was held to be wrong (s) . In 
 another case, in which it does not appear whether seizure 
 had been made, the reverse seems to have been held to be 
 law (t). In a case, in equity, on the express ground that a 
 creditor in such a situation could not come in under a 
 decree for the benefit of creditors, an injunction against the 
 sheriff selling was refused in like circumstances (it). On 
 the above cases it would appear that where the execution of 
 the writ is actually begun, the person pursuing the execu- 
 tion is safe in proceeding, notwithstanding the death or 
 devolution of interest of the party against whom the execu- 
 tion is issued (v). Where, however, the writ is in the 
 
 459. See Harrison v. Bowden, 1 tually appear whether the writ was 
 
 Sid. 29 ; Clerk v. Withers, 2 Ld. issued at the time of the death. 
 
 Raym. 1073; 6 Mod. 299; Wharam "I shall not determine how it 
 
 v. Broughton, 1 Ves. sen. 180 ; would have been if execution had 
 
 White v. Hayward, 2 Ves. sen. 461. been in part executed." Powell, J., 
 
 Other authorities, Ch. Arch. Pr. in Clerk v. Withers, 2 Ld. Raym. 
 
 14th ed. 811. The rule is thus ex- p. 1073. 
 
 pressed in a modern work of au- (t) Farrer v. Brooks, 1 Mod. 188. 
 thority : " the efficacy of a writ in Sect. 16 of Statute of Frauds seems 
 execution of a judgment does not to point to the delivery to the 
 cease with the death of the judg- sheriff as being the crucial point 
 ment creditor." Wms. Exors. 8th in matter of time. Eaton v. South- 
 ed. 907, 2001. [See as to abate- by, Willes, 131. See also Parkes 
 ment of scire facias, also a judicial v. Mosse, Cro. Eliz. 181, directly 
 writ, Woodyeer v. Gresham, Skin. opposed to Thorough good's case on 
 682.] any construction of it. 
 
 (*) This appears to be the true (tt) Ranken v. Harwood, 10 Jur. 
 
 construction to be placed on the 794. 
 
 first part of Thorouahgood's case, (v) See, in the case of an elegit, 
 
 Noy, 73, although it does not ac- Re Hobson, 33 Ch. D. 493, where
 
 56 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. sheriff's hands, and as yet wholly unexecuted, there appears 
 to be no sufficient authority to warrant its execution being 
 straightway proceeded with. Bearing in mind that 
 0. XLII. r. 23 (u) provides only for leave to issue execu- 
 tion, and in the case supposed execution had already issued, 
 the rule has in terms no application. The safe course 
 would therefore, in such case, appear to be, to obtain an 
 order under 0. XVII. r. 4, as well as under 0. XLII. r. 23, 
 in the manner above referred to. This has the drawback 
 that it necessitates the issue of a new writ of execution 
 altogether. 
 
 The direction 
 to return the 
 writ. 
 
 Purpose of 
 return. 
 
 Former direc- 
 tion to return 
 on day cer- 
 tain. 
 
 SECT. 4. BETURNS TO WRITS OF EXECUTION. 
 
 In all writs of execution addressed to the sheriff (x), 
 there is a direction to the effect following : " And in what 
 manner you shall have executed this our writ, make appear 
 to us in our said Court immediately after the execution 
 thereof. And have there then this writ." This part of 
 the writ directs its return into the High Court. Formerly, 
 the direction was to return the writ into the Court in 
 which the record was (?/). 
 
 The theoretical purpose for which this return of the 
 writ is required is that the record may be completed, and 
 what has been done under the judgment appear on the 
 roll. 
 
 Formerly, writs of execution were made returnable on a 
 certain day in term, by which time they were required to 
 be in the proper office of the Court from which they had 
 
 the land had been delivered before 
 the transmission of interest ; but if 
 the land had not been delivered, it 
 is submitted that there must have 
 been some suggestion of the de- 
 fendant' s death on the roll in order 
 that the jury might duly find. 
 (u] Vide supra, p. 24. 
 
 (x) There is now no direction to 
 return a writ of sequestration is- 
 sued out of the Chancery Division, 
 though there is such a direction 
 in the writ of sequestration of 
 ecclesiastical goods directed to the 
 bishop. 
 
 (y) Dalt. 64.
 
 WRITS OF EXECUTION GENERALLY. 57 
 
 issued, with the return or report of the sheriff (z) ; and if Chap. I. 
 a writ was not made returnable on one of the appropriate Sec - * 
 days set apart for the return of writs, it was an invalid 
 proceeding, and acts done under it unjustifiable (a). This 
 state of the law was completely changed, and writs made 
 returnable immediately, by 3 & 4 Will. IY. c. 67, 
 s. 2. 
 
 The section has been repealed by 42 & 43 Viet. c. 59, 
 Sch. pt. I., and there is now, in terms, no similar enact- 
 ment. 
 
 The forms of writs in the Appendix to the rules of court Present direc- 
 have, however, been settled in accordance with the ample return imme- 
 statutory powers to frame rules given by the Judicature diately. 
 Acts, and they are all made returnable immediately after 
 execution. This renders a great number of decisions upon 
 practice, which depended upon the return day being cer- 
 tain, obsolete. We do not, therefore, propose to discuss 
 the effect of the direction to return on a day certain, or of 
 its being in any other form in this respect than that pre- 
 scribed in the rules. 
 
 The direction is to return " immediately after the exe- " Immedi- 
 cution thereof." These words have been the subject of the execution 
 judicial decision, and it appears clear, as a first principle, thereof." 
 that a writ is not returnable till it has been fully executed. 
 There is nothing, short of complete execution, to limit the 
 force and duration of the writ (b). An order may be made 
 by the Court at any time, at the instance of the person 
 issuing the writ, that the sheriff return what he has done 
 
 (z) Tidd's Practice, 106. for amendment. Williams v. De 
 
 (a) Adams v. Sparry, 1 Wils. JBoinville, 17 Q. B. D. 180. 
 
 155 ; Furtado v. Miller, Barnes, (b) Jordan v. Binckes, 13 Q. B. 
 
 213. A writ returnable on a dies 757 ; 18 L. J. Q. B. 277 ; Lewis v. 
 
 non, e.g., Sunday, was invalid. Holmes, 10 Q. B. 896. The ques- 
 
 Morrison v. Manley, 1 Dowl. N. S. tion of what is complete execution 
 
 773. It is probable, if such an irre- in the case of an elegit will be 
 
 gularity as the last named could discussed when we treat of that 
 
 under the new procedure happen writ, 
 at all, that it would be mere matter
 
 58 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 0. XLII. 
 r. 20. 
 
 Duration of 
 writs of 
 execution. 
 
 villas and 
 pluries writs. 
 
 under it, but this is only "in some sense," and not in 
 truth, the return of the writ (c). 
 
 In connection with this point, however, rule 20 of 
 0. XLII. is important ; " a writ of execution, if unexe- 
 cuted, shall remain in force for one year only from its 
 issue." This, it is submitted, does not mean that if a writ 
 is partly executed it still runs after the year, but the words 
 "if unexecuted" import "if unexecuted in whole or in 
 part." 
 
 The writ under this rule only justifies an execution put 
 in force within the year, and on principle it appears that 
 the sheriff's duty (at all events during that year) is to 
 retain in his hands the writ sent him for execution until he 
 has completely performed the mandate under it, notwith- 
 standing that he may, under order, make to the Court one 
 or more returns of what he has done. This practice has 
 not, however, except in the case of execution of a fi. fa. or 
 sequest. de bonis ecclesiasticis (d], been followed, for the 
 sheriff returns the writ itself, although not completely 
 executed. 
 
 Thereupon a new writ, called an alias, followed on a 
 second return by a plurics, issues, founded upon the return 
 to the former writ (e) . No leave for the issue of these 
 alias and pluries writs is necessary. It is submitted that 
 there is now no longer any real necessity for the continu- 
 ance of this practice, which might well be altered. Every- 
 thing requisite could be done under the original writ of 
 execution if properly renewed (/). The practice of issuing 
 
 (c) Kemp v. Hi/slop, 1 M. & W. 
 58, where it was put thus, that a 
 judge had no power to order return 
 before the execution completed. 
 Lewis v. Holmes, 10 Q. B. 896. 
 Perhaps it would be clearer to say 
 that in such case there should be 
 no return of the writ, but merely a 
 return to it. 
 
 (d) Vide infra, Chap. VII. 
 
 (e) Forms in Appendix, infra, 
 Nos. 17 and 18. 
 
 (/) In case of an omission to 
 renew before the expiration of a 
 writ, it would appear that a new 
 writ may issue under 0. XLII. 
 r. 17. The return of the former 
 writ should in such case be first 
 obtained.
 
 WRITS OF EXECUTION GENERALLY. 59 
 
 alias and pluries writs at the present day is evidently con- chap. I. 
 sequent upon the analogy afforded by the practice when Sec - 4 - 
 writs were returnable on a day certain. There, after the 
 return of the writ, it was at an end, and a new one was 
 necessary. 
 
 The practice, on a return to a writ being made, has hitherto Practice as 
 been to file the writ and return together, and this, no doubt, t( eturn> 
 is in strict conformity with the old idea of the record (g). 
 It is suggested that the return alone might now be filed, 
 leaving the writ in the sheriff's hands for further 
 execution (h). 
 
 The validity of every writ of execution depends entirely Irregularity 
 upon the authority given by the record or file of proceed- execution* 
 ings, the writ itself not being part of the record till it is 
 returned. If at any time the record was incomplete, in 
 that it did not state what had happened with respect to 
 the judgment, strictly speaking the writ was irregular, for, 
 by reference to the record, it would appear unauthorized. 
 This seems to be the true reason for those decisions, so 
 frequent in practice in former times, of writs being set 
 aside for the irregularity that the return to a former writ or 
 its non-return did not justify the issue of such writs. 
 
 Suppose, for example, that part of the sum due upon a First writ to 
 judgment had been recovered under a writ of fi.fa., it before second 
 would be wholly irregular, until the first was returned, to issued, 
 have issued a second writ of execution, whether &fi.fa. or 
 any other kind (i), the real reason for the irregularity of 
 the second writ being that it was not in accordance 
 with, or authorized by, the record. The cases in illus- 
 
 (g) There was, and is, therefore, Marsh v. Fawcett, 2 H. Bl. 582 ; 
 
 this other reason for the alias, that and infra, pp. 201, 207. 
 the original remain s no longer in the (i) ' ' The Court will require a re - 
 
 sheriff's hands. The alias might turn to be made of what has been 
 
 be issued at any time. Harmer v. done under one writ, before it will 
 
 Johnson, 14 M. & W. 336. allow its process to be a second 
 
 (h) See the procedure adopted time put in force." Holmes\.New- 
 
 with respect to writs of fi. fa. and lands, 13 L. J. N. S. Q. B. 82. 
 seqmstr. fa. de bonis ccclesiasticis.
 
 60 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Description 
 of returns. 
 
 Their prepa- 
 ration. 
 
 Requisites of 
 a return. 
 
 tration of this are very numerous in the older books of 
 practice (k) . 
 
 In more recent times, the necessity for care on this 
 point has, to a great extent, been removed, by making all 
 writs returnable immediately after execution, for the 
 sheriff is thereby empowered to retain the writ in his 
 hands, and levy again and again until the execution is 
 complete. The abolition of imprisonment for debt, and 
 consequent disuse of the ca. sa., again removed this par- 
 ticular reason of irregularity further from the range of 
 ordinary practice. 
 
 "Returns are nothing else but the sheriffs' answers, 
 touching that which they are commanded to do by the 
 king's writ, and are but to ascertain the Court of the truth 
 of the matter ; and yet this is one of the most difficult 
 things belonging to the office" (/). The difficulty is not so 
 great now as formerly ; for the essentials to a good return 
 seem, in fact, to be few in number, if not trivial in 
 character. It need not be in any particular form, so long 
 as it is certain. If from the terms of it a clear answer to 
 the mandate can be ascertained, it would appear to be 
 sufficient. There are many general propositions laid down 
 as to the requisites of a return, but they seem reducible to 
 these two that it should be certain, and should answer the 
 
 (k) Bac. Abr. tit. Execution, D. 
 Testatum fi. fa. issued without 
 former testatum Ji. fa. having been 
 returned. Chapman v. Howlbt/, 1 
 Dowl. N. S. 83 ; Coppcndale v. 
 Debonaire, Barnes, 213. The plain- 
 tiff may issue several kinds of writ 
 at the same time, but if he exe- 
 cutes one he cannot afterwards 
 execute the other without return- 
 ing the first executed. Miller v. 
 Parnell, 6 Taunt. 370 ; 2 Marsh. 
 78 ; Knight v. Coleby, 5 M. & W. 
 274. But where execution against 
 two, put into effect (without result 
 
 as to sum due) against one, execu- 
 tion can be issued against the other 
 without leave. Franklin v. Hodg- 
 Jcinson, 3 D. & L. 554. 
 
 (I) Wats. Sher. 87. Returns are 
 merely statements of fact, and their 
 truth or falsehood has reference 
 only to the time when they are 
 made. Smallcombev. Olivier, 13 M. 
 & W. 77. The return is made on 
 the back of the writ itself, or on a 
 schedule annexed thereto. The 
 forms of returns to the various 
 writs will be found in the Appendix 
 under their respective headings.
 
 WRITS OF EXECUTION GENERALLY. 61 
 
 mandate contained in the writ. As to certainty, it is not Chap. I. 
 required that the return shall be more than reasonably Sec - 4 - 
 certain, i. e., in time, place, and other material circumstances, 
 for it is not a pleading (m). As to the answer to the 
 writ, the return must allege what has been done, and must 
 reply to every part of the mandate. So far as there is no 
 answer, there is a non-return (n), and to that extent, if 
 the attempted return is made under an order, the sheriff is 
 in contempt. It has been decided that there is no answer Falsifying 
 where the return alleges something inconsistent with the * 
 record, if it falsifies the record, as it is termed (o). The 
 old practice, when any such bad return had been made, 
 was to move (by rule nisi) to quash it. If, on the argu- 
 ment of the rule, the return were found insufficient, the 
 sheriff (having been previously ruled to make the return) 
 was in contempt, notwithstanding the answer he had 
 given. The practice at the present time, where there is 
 any doubt of the validity of a return, is to issue a sum- 
 mons (p) to set it aside. If there is no doubt that the 
 return is bad, it may, strictly speaking, be disregarded 
 altogether, and proceedings taken as if it had not been 
 made. 
 
 The Court has always exercised a wide discretion in Amendment 
 allowing the sheriff to amend his return on payment of 
 the costs of the successful proceedings against him (<?) . 
 
 The effect of particular returns will be discussed in 
 treating of the writs to which they relate. 
 
 A return is not essential to the validity of an execution Execution 
 
 valid without 
 return. 
 
 (m) Reynolds v. Barford, 2 D. & son, 1 Dowl. 337. 
 L. 327 ; Wats. Sher. 89, where (p ) The summons should be re- 
 many examples are given of bad, turnable before the judge, as, if the 
 as distinguished from false, returns. return is set aside, the sheriff would 
 
 () Rex v. Sheriff of Monmouth, be in contempt, and his liberty 
 
 1 Marsh. 344 ; Eyres v. Taunton, affected. See 0. LIV. r. 12. 
 
 Cro. Car. 295 ; Wats. Sher. 90. (q) Wats. Sher. 92 ; Cleaver v. 
 
 (o) Moor v. Watts, 2 Salk. 581 ; Fisher, 2 Dowl. N. S. 292. In the 
 
 Doyley v. White, Cro. Jac. 323, a Matter of Clarke, 2 Q. B. 619. 
 good example ; Grimshaw v. Emer-
 
 62 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Practical 
 utility of the 
 return. 
 
 itself, except in the case of an elegit or other writ where 
 an inquisition is a part of the procedure (r). In other 
 cases, the execution by the sheriff remains valid or im- 
 peachahle, quite apart from the fact of whether any return 
 has heen made. Subject to that exception, the return is 
 only of use to any person in order that he may found some 
 other proceedings, or take some further step. Hence it is 
 never required to be made, unless for some such reason (s). 
 Where it is intended to proceed against the sheriff, as an 
 officer of the Court, for a breach of duty in the execution 
 or non-execution of the writ, a return is essential. It is, 
 in such cases, the basis of the summary proceedings to 
 which he is liable. But, on the other hand, where he has 
 done an actionable wrong, the mere fact whether he has 
 or has not made a return is immaterial, except so far as it 
 is evidence against him of what has occurred. In sum- 
 mary proceedings, the return is conclusive against him, 
 that is, he is estopped by it, but it is so only in that 
 case. It has been said " a return is conclusive only in 
 the particular cause in which it is made." Again, " the 
 Court will so far give credit to it as to. act on it in the 
 case of an attachment ; but on an indictment it would only 
 be evidence" (). In an action against him for a wrong, 
 he can dispute the truth of his own return (ti), it being 
 stated to "be primu facie evidence against him (a?). 
 
 (r) Fulwooffs case, 4 Rep. 67 a. 
 ' ' All writs of execution which are 
 to be executed by the sole authority 
 of the sheriff .... are good when 
 duly executed, though never re- 
 turned by the sheriff," giving as 
 the reason, " an execution executed 
 is the end of the law." Bac. Abr. 
 tit. Execution C. 1. But the sheriff 
 must return an elegit; for this is 
 not executed by his sole authority, 
 but by an inquest taken by him. 
 
 (s) A return may be advisable 
 when any dispute arises as to 
 sheriff's charges or duties. See 
 
 Edmunds v. Watson, 2 Marsh. 330 ; 
 7 Taunt. 5. 
 
 (t) Jackson v. Hill, 10 A. & E. 
 477 ; per Patteson, J., p. 492. 
 
 (u) Brydges v. Walford, 6 M. & 
 S. 42 ; Standish v. Eoss, 3 Exch. 
 527 ; Jackson v. Hill, 10 A. & E. 
 477; JRemmettv. Lawrence, 15 Q. B. 
 1004 ; Stimson v. Farnham, L. E. 
 7 Q. B. 175. 
 
 (x) Com. Dig. tit. Retorn, G-. ; 
 Gy/ordv. Woodgate, 11 East, 297. 
 It is of course always open to him 
 to set his return right by amend- 
 ment.
 
 WRITS OF EXECUTION GENERALLY. 63 
 
 The return, although made by the sheriff, can be given Chap. I. 
 in evidence against the parties to the action (y) . 
 
 The duty of the sheriff is broadly enough stated : 
 " Regularly the sheriff should make his return to every 
 writ, but it is not usual for him to do so until ruled " (z). 
 
 The process to compel the sheriff to make his return to Process to 
 a writ was, formerly, by a side bar rule. At the present return, 
 time the procedure is provided for by 0. LIL r. 11 : " No 0. LII. r. n. 
 order shall issue for the return of any writ, or to bring in 
 the body of a person ordered to be attached or committed ; 
 but a notice from the person issuing the writ or obtaining 
 the order for attachment or committal (if not represented 
 by a solicitor), or by his solicitor, calling upon the sheriff 
 to return such writ or to bring in the body within a given 
 time, if not complied with, shall entitle such person to 
 apply for an order for the committal of the sheriff" (a). 
 
 When it becomes necessary to make a peremptory order Costs of 
 against the sheriff, that he do return the writ within so many to compei n 
 days, it seems that he maybe compelled to pay the costs (b). return. 
 
 All parties to the action are entitled to call on the Who entitled 
 sheriff to return the writ, although it is in reality in the 
 discretion of the Court whether he will be ordered to do 
 so (c). The order has been refused in many cases; e.g., 
 collusion between the solicitor and the sheriff's officer (d) ; 
 or where an interpleader issue is pending (c), and other 
 cases where in fact any default, negligence, or delay is 
 attributable to the person applying for the order (e). The 
 
 (y) Leonard v. Simpson, 2 Bing. D. 795. See infra, Chapter on 
 
 N. C. 176. Committal. 
 
 (z) "Wats. Sher. 81 ; Woodman v. (b) Be Heiron's Estate, Hall \. 
 
 Gist, 8 C. & P. 213; Dalt. 64; Ley, 12 Ch. D. 795, following 
 
 Tidd. Pr. 1018. Evans v. Davies, 7 Beav. 81. 
 
 (a) For form of notice, see Ap- (c) Angell v. Baddeley, 3 Ex. D. 
 
 pendix, infra, Form No. 19, p. 401. 49. 
 
 On an application for order of com- (d) Huston v. Hatfield, 3 B. & 
 
 mittal, the usual formalities must Aid. 204. 
 
 be observed; e. g., order to return (e) Hepicorth v. Sanderson, 8 
 
 must be served personally. Re Bing. 19 ; 1 Moo. & Sc. 64 ; Hart 
 
 Heirorfs Estate, Hallv. Ley, 12 Ch. v. Weatherley, 4 Dowl. 171.
 
 64 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Practice 
 where return 
 required by 
 the defen- 
 dant. 
 
 party issuing the writ can, at any time after the writ is in 
 the sheriff's hands (/) (subject to the discretion of the 
 Court above mentioned), compel him to return what has 
 been done under it, whether it has been executed or not (g) . 
 The party against whom the writ is issued can require the 
 return of the writ when its purpose has been effected, not 
 before (Ji) ; perhaps it may be said that it is in the dis- 
 cretion of the Court whether the return will be ordered, 
 or whether, when made, it will be interfered with (i) . It 
 is clear that, where it is to the interest of the party applying 
 to have the record completed, a return will be ordered (). 
 The above rule (r. 11, 0. LII.) does not in terms allow 
 the notice calling on the sheriff to be given in the case 
 where the party, against whom the writ has been issued, 
 requires it to be returned. It is difficult to say in such 
 a case what the correct practice is. Certainly, the old 
 method of making an application for such a purpose by 
 rule and not by summons is not expressly varied. The 
 particular case is not provided for by the rules, and, there- 
 fore, 0. LII. r. 1, does not appear to apply. 
 
 O. XLII. 
 r. 32. 
 
 SECT. 5. DISCOVERY IN AID OF EXECUTION. 
 
 By 0. XLII. r. 32, " When a judgment or order is for 
 the recovery or payment of money, the party entitled to 
 enforce it may apply to the Court or a Judge for an order 
 that the debtor liable under such judgment or order, or in 
 the case of a corporation that any officer thereof, be orally 
 examined as to whether any and what debts are owing to 
 
 (/) It being returnable imme- 
 diately after execution. 
 
 (g) For authorities, see valuable 
 note to Ch. Forms, p. 406. 
 
 (h) Daniels v. Gompertz, 3 Q. B. 
 322; 2 Gale & D. 751; France v. 
 Clarkson, 2 Dowl. 532 ; Richardson 
 \. Trundle, 29 L. J. C. P. 310; 
 
 8 C. B. N. S. 474. 
 
 (i) See Willett v. Sparrow, 2 
 Marsh. 293 ; Williams v. Webb, 2 
 Dowl. N. S. 904. 
 
 (k) Edmunds v. Watson, 2 Marsh. 
 330 ; 7 Taunt. 5 ; Richardson v. 
 Trundle, 8 C. B. N. S. 474 ; Wil- 
 liams v. Webb, ubi supra.
 
 WRITS OF EXECUTION GENERALLY. 65 
 
 the debtor, and whether the debtor has any and what Chap. I. 
 other property or means of satisfying the judgment or Sec ' g * 
 order, before a Judge or an officer of the Court as the 
 Court or a Judge shall appoint ; and the Court or Judge 
 may make an order for the attendance and examination 
 of such debtor, or of any other person, and for the produc- 
 tion of any books or documents." 
 
 The application for this order is made upon motion or The applica- 
 summons, and should be made on an affidavit setting forth order. * 
 the steps which have been taken to enforce the judgment, 
 and the result thereof ; for the Court will not be likely to 
 order the expense of examination to be incurred before the 
 usual methods of execution are exhausted. It is not 
 necessary that the affidavit should state the belief of the 
 deponent that debts are in fact due to the debtor (/), 
 though doubtless, where the information is at hand, it will 
 be better to state it to the Court. 
 
 The notice of motion or summons may be served in the Service, 
 ordinary way; that is to say, personal service is not neces- 
 sary (m) . Personal service of the order itself appears to 
 be necessary if it is intended to found thereon proceedings 
 for attachment in case of disobedience (ri) . And, further, 
 conduct-money must have been tendered to the debtor (0). 
 
 The form of order, made on the application, does not 
 itself fix the time and place at which the debtor is to 
 attend, but leaves it to be subsequently fixed by the Court 
 or judge (p}, of which appointment notice is to be given 
 to the debtor (q). It would seem that both the order and 
 the notice of appointment should be personally served. 
 
 The debtor has no right to object to a stringent cross- Nature of the 
 examination under this rule, as it has been made for 
 
 (/) Patterson v. Doyle, 4 L. R. r. 5, should be made upon the 
 
 Ir. 33. order. 
 
 (m) See In re A Solicitor, 14 Ch. (o) Protector Endowment Co. v. 
 
 D. 152. Whitlam, 36 L. T. 467. 
 
 () Mason v. Muggeridge, 18 C. B. (p) See form of order, Appen- 
 
 642 ; Ch. Forms, p. 456. The in- dix, infra, Form No. 20. 
 
 dorsement required by 0. XLI. (q) Dan. Ch. Forms, p. 421. 
 
 E. F
 
 66 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 .Book I. purposes of discovery (r) . The Court, it is submitted, 
 exercises a wide discretion in granting the order, and 
 will take into consideration other circumstances than the 
 mere likelihood of recovering the debt. For example, it 
 will not make the order against a debtor who has already 
 been ordered, on a judgment summons, to pay by instal- 
 ments (s). 
 "Any other As to the words " any other person," a garnishee debtor 
 
 comes within them (f) . 
 
 Discovery in By 0. XLII. r. 33, "In case of any judgment or order, 
 tion on order other than for the recovery or payment of money, if any 
 
 other than for difficulty shall arise in or about the execution or enforce- 
 money. 
 
 ment thereof, any party interested may apply to the Court 
 or a Judge, and the Court or Judge may make such order 
 thereon for the attendance and examination of any party, 
 or otherwise, as may be just." 
 
 Costs. By rule 34, " The costs of any application under the 
 
 last two preceding rules, or either of them, and of any pro- 
 ceedings arising from or incidental thereto, shall be in the 
 discretion of the Court or a Judge, or in the discretion of 
 such officer as in rule 32 mentioned, if the Court or a 
 Judge shall so direct." 
 
 (r) Republic of Costa Rica v. (t) Cowan v. Carlill, 33 W. K. 
 
 Strousberg, 16 Ch. D. 8. 583 ; 52 L. T. 431. 
 
 (s) Eayter v. JBeall, 44 L.T. 131.
 
 CHAPTER II. chap. n. 
 
 OFFICERS OF EXECUTION THE SHERIFF. 
 
 THE enforcement of writs is carried out by the sheriff. 
 We are only concerned here to inquire into his numerous 
 duties so far as they relate to that purpose. Such duties 
 have always been in great part a matter of statute law, 
 and the numerous enactments relating to the subject have 
 now been consolidated in an Act passed in the last session (). 
 It has been thought advisable to refer to some of the most 
 important sections of the Act, and to include the Act itself 
 in an Appendix (b). 
 
 The appointment of sheriffs is made by the sovereign, Appointment 
 directly, on the nomination of the Lord Chancellor and 
 other high dignitaries (c). 
 
 The duties of the sheriff are said to be of a four-fold 
 nature (d). We have only to do with his so-called minis- 
 terial duties, which are thus referred to in Dalton (e) : 
 
 " The office of a sheriff consisteth chiefly in the execution 
 and serving (/) of proces of law, and to doe this he is the 
 immediate officer of the King and all his Courts (scz., to 
 
 (a) 50 & 51 Viet. c. 55. (d) Coke tells us, ' ' though he be 
 
 (b) Appendix II. infra, p. 455. still called vicecomes, yet all he doth 
 
 (c) 50 & 51 Viet. c. 55, s. 6. and all his authority is immediately 
 The manner of their appointment from and under the king, and not 
 by " pricking " is wide of our sub- from and under the earl." Co. 
 ject. See, as to the history thereof , Lit. 168 a. His duties are, in the 
 Reeve's Hist, vol. i. ; 2 Co. Lit. same place, stated to be three-fold, 
 2nd Inst. 559 ; Dalton's Office of but a more exhaustive enumeration 
 the Sheriff, ed. 1623, p. 2 ; Wats. is to be found, Wats. Sher. Ch. I. 
 Office of the Sheriff, p. 9. It is (e) Dalt. p. 41. 
 
 curious that the mode of nomina- (/) This part of their duty is 
 
 tion, still preserved, is supposed to now obsolete, 
 be, by virtue of a statute, now lost. 
 
 F2
 
 68 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. execute the writs of the common law). And hee is sworne 
 ~ that he shall truely doe this, and hee must doe this without 
 any favour, dread, or corruption." 
 
 SECT. 1. NATURE or THE OFFICE OF SHERIFF HIS 
 OFFICERS AND SUBSTITUTES. 
 
 The sheriff an Notwithstanding that the sheriff is the king's officer, he 
 Court i g > i n ^ ne matter of the execution of writs, an officer of the 
 
 Court. He may, therefore, be compelled to answer for the 
 due execution of his office and of the duties imposed upon 
 him, by the summary jurisdiction of the Court over its 
 officers. He is liable as such to penalties, and to be 
 committed for contempt if he disobey its orders (g). All 
 writs of execution are, in the first place, directed to him, 
 except in cases where he is personally interested (h). A 
 sheriff is appointed for each county, and writs direct him 
 to put them in force only within the county of which he is 
 the sheriff (i). 
 
 Sheriff, the Theoretically, there would appear to be no limit to the 
 
 whom writs P ower f the king or of his Courts to appoint officers to 
 
 can be ad- enforce process. But, whether this is so or not, it is now 
 
 well settled that (except where the sheriff is himself a 
 
 party to the proceedings) a writ of execution confers no 
 
 authority if it purport to impose the duty of enforcing it 
 
 upon any other person (K). 
 
 Transfer of The office of sheriff is not a transferable nor a con- 
 one^heriffTo ^ muous office ; the appointment is a personal appointment 
 
 his successor. 
 
 (?) See Tidd's Pr. 478 ; 50 & 51 See Dalt. 43. 
 
 Viet. c. 55, s. 29. (i) He has no authority, or very 
 
 (h) This statement must be taken limited authority, beyond his own 
 
 with the limitation imposed by the county. Wats. Sher. 3. 
 
 law relating to ecclesiastical per- () Grant v. Sagge, 3 East, 128 ; 
 
 sons, and in ancient times to many argument in Wentworth v. Broad- 
 
 others; for instance, to the prior water, Skin. 413; Bowring v. Prit~ 
 
 of an abbey, or the lord of a manor. chard, 14 East, 289.
 
 OFFICERS OF EXECUTION THE SHERIFF. 69 
 
 merely (/). "When, therefore, process is placed in his Chap. II. 
 hands for execution, he would at common law have been 
 bound to the parties until he had sued out his " writ of 
 discharge" to complete it, whether his term of office had 
 expired before it could be completed or not (m). Statut- 
 able provisions, however, have been made for the transfer 
 of all writs and other process " not wholly executed " by 
 the old sheriff to the new one on his appointment (n}. A 
 list of such process is made out, and a duplicate signed 
 by the new sheriff ; this operates as a discharge from the 
 further charge of the execution of the writs, process, and 
 other matters therein contained, without any writ of dis- 
 charge (0) or other writ whatsoever. The question arising 
 upon this enactment has reference to the construction of 
 the words " not wholly executed ; " and for this purpose a 
 writ of fi.fa., which has been so far executed that at the 
 time of the new sheriff's appointment the goods have 
 been sold, is said to be wholly executed, so that the pro- 
 ceeds must be recovered from the old sheriff, and not the 
 new ( p) . 
 
 The office of the sheriff being a personal one, his repre- Liability of 
 sentatives are liable in certain cases for his default in 
 executing writs. For example, where money has been 
 levied before his death, and not paid over, his executors 
 are liable therefor (q). They are not, of course, liable for 
 tortious acts of the sheriff, except perhaps so far as such 
 
 (I) 50 & 51 Viet. c. 55, ss. 3, 5. discharge was formerly sued out 
 
 See, for an illustration, Loviclc v. by the old sheriff after he had, by 
 
 Crowder, 8 B. & C. 132. indenture, assigned over all pri- 
 
 (m) " The same sheriff who be- soners and process to the new 
 
 gins an execution must end it." sheriff. 
 2 Saund. 47 dd. (p) Harrison v. Paynter, 6 M. & 
 
 () 50 & 51 Viet. c. 55, s. 28, W. 387. 
 
 sub-s. (1), re-enacting 3 & 4 Will. 4, (q) Packington v. Culliford, 1 Roll, 
 
 c. 99, s. 7. Abr. 921, tit. Executors, pi. H. 2 ; 
 
 (o) 50 & 51 Viet. c. 55, s. 28, Perkinson v. Gilford, Cro. Car. 539 ; 
 
 sub-s. (2), re-enacting (in effect) 3 & S. O., W. Jones, 430; Adair v. 
 
 4 Will. 4, c. 99, s. 7. The writ of Shaw, 1 Sch. & Lef. p. 265.
 
 70 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Sheriff's 
 deputies. 
 
 acts may have led to the appropriation of property which 
 can be traced after the death (r). An action of this kind 
 would not be an action for damages (s) . 
 
 The liability of a sheriff to return a writ is limited to 
 six months after he ceases to hold office (f) . 
 
 Every sheriff is bound to appoint a deputy in London, 
 who shall have an office within a mile from the Inner 
 Temple Hall. This deputy is to receive writs, grant 
 warrants thereon, make returns thereto, and to accept ser- 
 vice of rules and orders (u) touching the execution of any 
 process (x). 
 
 Where sheriff 
 interested, 
 direction to 
 co -sheriff or 
 to coroner. 
 
 Elisors. 
 
 Where the sheriff is a party to an action, process therein 
 must not be directed to him, but either to his co-sheriff, 
 where there are two (y), or to the coroner (s). A coroner 
 to whom a writ is so directed becomes thereupon an officer 
 of the Court, just as is the case with a sheriff, and if the 
 orders of the Court are not obeyed, is punishable in a 
 similar manner (a). Where both the sheriff and the 
 coroner are parties, the officers to enforce the writ are 
 elisors, or persons appointed by the Court for the particular 
 purpose (V). The writs are directed to them, and they 
 
 (r) Hambly v. Trott, 1 Cowp. 
 375. It is a question how far the 
 executors of a sheriff are liable to 
 complete an execution which he has 
 begun. See Gloucestershire Bank- 
 ing Co. v. Edwards, 20 Q. B. D. 107. 
 
 (s) Pollock on Torts, pp. 61, 62. 
 
 (t) 50 & 51 Viet. c. 65, s. 28, 
 sub-s. 3, re-enacting in effect 20 
 Geo. 2, c. 37, s, 2. 
 
 (u) Service of the notice, now re- 
 placing the rule nisi (0. LII. r. 11), 
 is sufficiently made upon the de- 
 puty. Service on the deputy is a 
 delivery to the sheriff to be exe- 
 cuted. Woodland v. Fuller, 11 A. & 
 E. 859. 
 
 (*) 50 & 51 Viet. c. 55, s. 24, 
 re-enacting 3 & 4 Will. 4, c. 42, 
 s. 20 ; Reeve's Hist. vol. 2, p. 545 ; 
 Harrison v. Paynter, 6 M. & W. 
 p. 390. 
 
 (y) Letsom v. BicHey, 5 M. & S. 
 144. 
 
 (z) Weston v. Coulson, 1 W. Black. 
 506. It is not necessary that the 
 writ should disclose the fact that 
 the sheriff is a party. Bastard v. 
 Trutch, 5 N. & M. 109. 
 
 (a) Andrews v. Sharp, 2 Wm. Bl. 
 911 ; Reg. v. Sheriff of Glamorgan- 
 shire, 1 Dowl. N. S. 308. 
 
 (b) The appointment is made by 
 the master on an ex parte applica-
 
 OFFICERS OF EXECUTION THE SHERIFF. 71 
 
 become, in like manner as the sheriff and coroner, officers chap, n. 
 of the Court (c}. The bailiffs employed by the coroner Sec - 1 - 
 are his officers, and not the sheriff's (d). 
 
 It will be observed, on a reference to the forms of writs Form of 
 of execution given in Appendix I., that they are all sheriff 011 
 addressed generally to the sheriff of the particular county, 
 without inserting his name (e). In an old case, this was 
 stated to be the reason why the sheriff might execute 
 process by his deputy, the under-sheriff (/). 
 
 Every sheriff must, within one month of the notification The under- 
 of his appointment in the London Gazette, appoint his 8 
 under-sheriff (#), who is usually a recognized legal practi- 
 tioner, and may hold the office continuously, notwith- 
 standing the annual change of sheriffs. The sheriff, in 
 making an under-sheriff, does implicitly give him power 
 to execute the ordinary and ministerial offices of the sheriff 
 himself that can be transferred by law; as serving 
 of process and executions, making returns, and the like(^). 
 But although, practically, the whole of his ministerial 
 duties are thus handed over to his deputy, the sheriff is alone 
 responsible to the parties for the due execution of them. 
 
 The relation between the sheriff and the under-sheriff is Relation be- 
 to some extent regulated by statute. For instance, on andunder- 
 the death of a sheriff during his shrievalty, the office of sheriff, 
 the under-sheriff continues, and he is bound to execute the 
 same till another sheriff be appointed (/), and can mean- 
 time appoint a deputy (j ) . 
 
 tion. See for old practice by rule M. & W. 520 ; 7 Dowl. 857. 
 
 absolute, Mayor of Norwich v. Gill, (/) Levett \. Farrar, Cro. Eliz. 
 
 1 Dowl. 246 ; Mayor of Kingston v. 294. A writ is not a commission. 
 
 Bubb, 1 Dowl. 151. See Form in Ibid. 
 
 Appendix, infra, No. 21. (g] 50 & 51 Viet. c. 55, s. 23. 
 
 (c) See last note. (h) Norton v. Simmes, Hob. 13 ; 
 
 (d) Serjeant v. Cowan, 1 Cr. &M. Wats. Sher. 36. 
 
 491. (i) 50 & 51 Viet. c. 55, s. 25, 
 
 (e) The writ is always to be ad- sub-s. (1), re-enacting in substance 
 dressed to the sheriff, or to some 3 Geo. 1, c. 15, s. 8. 
 
 person acting in the capacity of (J) 50 & 51 Viet. c. 55, s. 25, 
 
 sheriff. Edwards v. Robertson, 5 sub-s. (2).
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. The under-sheriff, in nearly all cases, executes a bond 
 
 Under- ~ or ther security to the sheriff for his indemnification ; but 
 sheriff's bond, the arrangements between these two officers have nothing to 
 do with the parties to the execution. The under-sheriff 
 on his appointment () becomes the deputy of the sheriff, 
 and his official acts in the execution of process are the acts 
 of the sheriff (I). The only limitation which appears to 
 be recognized to the sheriff's responsibility for the under- 
 sheriff's acts, is that those acts shall be performed officially. 
 It was said, formerly, that "the under-sheriff is the general 
 deputy of the high-sheriff for all purposes" (m), but this 
 language is too general, and should be limited as we have 
 mentioned (n). The cases on this point have arisen upon 
 the question of admissibility of the under-sheriff's and his 
 bailiff's statements as evidence against the sheriff ; such 
 statements are always received (0) . It appears clear that, 
 the delegation of office to the under-sheriff being per- 
 mitted by law, there is no relation between them of prin- 
 cipal and agent. The under-sheriff being in fact, during 
 his office, a deputy, and not an agent, an inquiry into the 
 scope of his authority would be immaterial. 
 
 In consequence of his position being that of deputy, no 
 action lies against the under-sheriff for wrong done in the 
 execution of process. Any such action must be brought 
 against the sheriff himself (p). 
 
 Bailiffs. For the actual enforcement of writs the under-sheriff 
 
 employs bailiffs (0). A bailiff is bound, before he inter- 
 meddles with the execution of writs, to make a declaration 
 
 (K) The appointment being revo- 
 cable at the will of the sheriff. 
 Wats. Sher. 37. 
 
 (0 Viner Abr. tit. Sheriff (M.), 1. 
 
 (>) Drake v. Sikes, 7 T. E. 113 ; 
 Yabsley v. Doble, 1 Ld. Raym. 190. 
 
 () Snowball v. Goodricke, 4 B. & 
 Ad. oil. 
 
 (o) Scott v. Marshall, 2 Cr. & J. 
 238 ; Jacobs v. Humphrey, 2 Cr. & 
 M.413 ; Norths. Miles, ICamp. 389. 
 
 (p) Cameron v. Reynolds, Cowp. 
 406. But where the sheriff has 
 
 died during office, and the under- 
 sheriff is thus compelled to do his 
 duty, if he (the under-sheriff) also 
 dies his representatives will be liable 
 for moneys in their hands, the pro- 
 ceeds of an execution. Gloucester- 
 shire Banking Co. v. Edwards, 20 
 Q. B. D. 107. See, now, 50 & 51 
 Viet. c. 55, s. 25. 
 
 (q) "Yet it appears by experi- 
 ence that the king's writs are served 
 by bailiffs, persons of little or no 
 value." Semayne's case, 5 Rep. p. 91.
 
 OFFICERS OF EXECUTION THE SHERIFF. 73 
 
 according to a statutory form (r) ; he is not in a similar posi- Chap. n. 
 tion to that of an under-sheriff, but, on the contrary, has no Sec ' * 
 general authority to act for the sheriff, and the mere fact 
 of a person being continually employed as bailiff makes no 
 difference (s)- The bailiff's authority is a warrant which The warrant, 
 is made out by the under-sheriff, or in his office, and directs 
 the bailiff to levy or enforce the execution (t) ; and proof of Proof of 
 such warrant, it is said, must be given in order to render 
 the sheriff liable for the acts of the bailiff () ; this state- 
 
 sheriff 
 
 ment, however, needs some modification, for the authority 
 of the bailiff can, in some cases, be proved without the 
 actual production of the warrant (x). The statement of a 
 bailiff, made in the course of the execution of a writ 
 intrusted to him, is, as we have seen, evidence against the 
 sheriff in respect to the facts which have taken place ; but 
 it seems doubtful, on principle, whether such statement, if 
 made with respect to the bailiff's authority, could be so 
 used (y) . Apart from mere matter of proof of authority, 
 the bailiff cannot execute a writ without a warrant being 
 deli vered to him (z) . The delivery of the warrant to him, 
 subsequently to execution, will not be sufficient proof of 
 his authority from the sheriff (a). 
 
 There is no doubt that the sheriff is responsible not only 
 
 (r) 50 & 51 Viet. c. 65, s. 26. to be manslaughter only, and not 
 
 (*) Drake v. Sikes, 7 T. R. 113. murder. See 9 A. & E. p. 843 ; 
 
 (t) The requisites of the warrant Cooper's case, Cro. Car. 544. 
 
 in matter of form, and its effect (M) Wats. Sher. 42. 
 
 generally, are well discussed in an (x) Scott v. Marshall, 2 Cr. & J. 
 
 excellent note to Chitty's Forms, 238. 
 
 p. 405. The warrant must not be (y) "Wats. Sher. 42. 
 
 filled up after it has left the office of (z) Hall v. Roche, 8 T. R. 187. 
 
 the under-sheriff. Bur slemv. Fern, It seems doubtful whether it is 
 
 2Wils.47; Housin \.Barrow, 6T.R. necessary for an ordinary sworn 
 
 122, where Lord Kenyon related bailiff to show his warrant when it 
 
 the curious case that the plaintiff, is demanded. Hall v. Roche, supra; 
 
 having inserted his own name in a Bac. Abr. tit. Sheriff (N.), 1. 
 
 warrant for the execution of a ca. (a) Jacobs v. Humphrey, 2 Cr. & 
 
 sa., attempted to arrest the defen- M. 413; North v. Miles, 1 Camp. 
 
 dant, who shot him dead. The 389, and note. 
 
 arrest being illegal, it was held
 
 74 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Sheriff not 
 liable for 
 plaintiff's 
 nominee as 
 bailiff. 
 
 Contempt by 
 interference. 
 
 Rescue, a 
 contempt. 
 
 for the acts of his under-sheriff, but also of his officers, 
 " acting by colour of his warrant," and it is of no avail to 
 him to allege that the officer acted contrary to the warrant 
 given him (b) ; nor, when he has done so, that the officer was 
 not authorized by his warrant to receive the proceeds of the 
 execution (c} . If, however, the sheriff appoint the nominee 
 of the plaintiff as the bailiff, he cannot be ordered to return 
 the writ (d) ; for, if a return is made, the sheriff is liable 
 therefor as if he had appointed his own bailiff (e). And 
 where such a special bailiff is appointed, the sheriff is not 
 liable to the execution creditor for any negligence in the 
 execution itself (/) . The special bailiff is the sheriff's bailiff, 
 and must account to him for the proceeds of the execution, 
 and cannot, therefore, obtain priority for his nominor (g) . 
 
 The sheriff being an officer of the Court, it will protect 
 him in the performance of his duties. All persons inter- 
 fering with his bailiffs in the execution of process, so as to 
 render the same impossible or difficult, are guilty of a 
 contempt of court (/*). For example, interference with 
 the sheriff's officer seizing, or who has seized, goods under 
 a^./a., so as to render execution impossible or dangerous, 
 is a contempt ('). Again, the rescue of a person from the 
 
 (b} Sanderson ~v. Baker, 2 Wm. Bl. 
 832; Woodgate v. Knatchbull, 2 
 T. K. 148 ; Gregory v. Cotterell, 5 El. 
 & Bl. 571. And see Ackworth v. 
 Kempe, 1 Doug. 40, where the same 
 point of whether the sheriff was 
 liable in trespass was raised, and 
 it was ruled that he was. Lord 
 Mansfield somewhat naively re- 
 marking, " In short, the point 
 seems to us extremely clear, and 
 it was not fair to puzzle us so long 
 with it." 
 
 (c) Woodman v. Gist, 8 C. & P. 
 213. 
 
 (d) De Moranda v. Dunkin, 4 
 T. E. 119. 
 
 (e) Beek/ordv. Welly, 2 Esp. 591 ; 
 
 Harding v. Holder, 9 Dowl. 659 ; 
 3 Sc. N. E,. 293. 
 
 (/) Doe v. Trye, 5 Bing. N. C. 
 573 ; 7 Dowl. 636 ; Ford v. Leche, 
 6 A. & E. 699; 1 N. & P. 737. 
 As 'bo what is sufficient to consti- 
 tute a special bailiff, see Corbet v. 
 Brown, 6 Dowl. 794 ; Seal v. Hud- 
 son, 4 D. & L. 760 ; 11 Jur. 610. 
 
 (g) Sawle v. Paynter, 1 Dowl. & 
 Ry. 307. 
 
 (h) It must be remembered that 
 the authority of every officer of the 
 Court is dependent upon the validity 
 of the proceedings. Ex parte Page, 
 17 Ves. 59 ; Cooper v. Asprey, 3 
 B. & S. 932. 
 
 (i) Cooper v. Asprey, 3 B. & S.
 
 OFFICERS OF EXECUTION THE SHERIFF. 75 
 
 custody of the sheriff has always been a contempt (k) . Chap. n. 
 With reference to this particular case of rescue, it may be _ 
 remarked, that the sheriff's return to that effect was 
 equivalent, for some purposes, to a conviction (I). Process 
 of contempt would, on the return being made, be issued 
 immediately. Further, the party aggrieved by the rescue 
 could proceed, criminally, by indictment (m), or, civilly, 
 by action on the case. The plaintiff was said, therefore, 
 to have a triple remedy (w). These three remedies are 
 still open. 
 
 It is, however, at the present time, almost obsolete to 
 consider the effect of the sheriff's return of rescue, for the 
 reason that such a return is not good, except to a writ of 
 mesne process. The sheriff, being bound by statute (o) to 
 raise the posse comitatus, and go in proper person to effect 
 the execution, cannot get behind the enactment and shelter 
 himself by a return of rescue (p). 
 
 Besides process for contempt, the sheriff can maintain Action by 
 an action for interference with the execution ; at any rate, 
 he could do so for rescue, where that return was legal, and 
 can still for taking goods which he has seized out of his 
 possession (q) . 
 
 There still exist in different parts of England what are Franchises or 
 known as franchises or liberties. A franchise is a royal 
 privilege, or branch of the sovereign's prerogative, subsist- 
 ing in the hands of a subject (r). The particular franchise 
 with which we are slightly concerned is that of retorna 
 
 932; 32 L. J. Q. B. 209. For Rescue. 
 
 process in contempt, see Book II. () Tidd's Pr. 236. 
 
 infra. (o) 50 & 51 Viet. c. 55, s. 8. 
 
 (k) Tidd's Pr. 236 ; "Wats. Sher. (p) Wats.Sher. p. 97, where the 
 
 98;Erasyerv. Maclean, L. R. 6 P.O. real distinction between arrest on 
 
 398, and authorities quoted in argu- mesne and final process is dis- 
 
 ment. closed. 
 
 (1) Wats. Sher. 98 ; Tidd's Pr. 236 ; (q) Wats. Sher. 272 ; Wilbrahamv. 
 
 Sex v. Pember, Lee Ca. temp. Hard. Snow, 2 Saund. 47 a ; Tyrrel v. Bath, 
 
 112; Brasyer v. Maclean, L. R. 6 Vin. Abr. tit. Sheriff (Y.) ; Sawlc 
 
 P. C. 398. v. Paynter, 1 Dowl. & Ry. 307. 
 
 (m) Russell on Crimes, Chap. Of (r) 2 Bl. Comm. ed. 1876, p. 31.
 
 76 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Return of 
 mandavi 
 
 ballivo. 
 
 Book I. brevium, importing that the owner of the franchise, or his 
 ~ bailiff, has the return and execution of all writs within his 
 liberty. Writs for execution within the liberty are not 
 directed to the bailiff, but to the sheriff ; in fact, a writ directed 
 to the former is bad, and acts done under it illegal (s). The 
 sheriff, having received a writ for enforcement, sends his 
 mandate to the bailiff of the liberty, who then puts the 
 writ into execution (t). The sheriff's return that he has 
 made such a mandate (mandavi ballivo) is a good return (u). 
 The execution of writs in liberties and franchises is regu- 
 lated by statute. Section 34 of the Sheriffs Act, 1887, 
 applies its provisions to the bailiffs of liberties, subjecting 
 them to certain conditions of office, for the particulars of 
 which reference must be made to the terms of the statute (#) . 
 "When the sheriff returns mandavi ballivo, but there is no 
 return to the writ by the bailiff, the sheriff may be 
 ordered to execute the writ by his own officers (//). The 
 order of the Court here referred to is not essential to the 
 validity of the execution ; for, notwithstanding the fran- 
 chise, the sheriff may still, without any order, enforce the 
 execution by his own officers, and it will be good. In such 
 a case, the sheriff can be called upon to answer to the 
 owner of the franchise whose rights have been infringed, 
 but the rights of the parties under the writ are not 
 affected (s). The provision that the sheriff may be 
 ordered by the Court to execute the writ, is carried out 
 after the order is obtained by issuing a new writ, in which 
 Nonomittas. is inserted the clause of non omittas propter aliquam 
 libertatem (a). 
 
 Execution by 
 sheriff not- 
 withstanding 
 liberty. 
 
 (s) Bowringv. Pritchard, 14 East, 
 289 ; 1 Ch. Rep. 375, n. ; Grant v. 
 Bagge, 3 East, 128. 
 
 (t) Form of Mandate, see Appen- 
 dix, infra, No. 22. 
 
 (u) Form of this return, Appen- 
 dix, infra, No. 23. But the sheriff 
 must not return that he has de- 
 livered it to a bailiff of some liberty, 
 not heretofore recorded in the Ex- 
 
 chequer. 50 & 51 Viet. c. 55, s. 10, 
 sub-s. (2). 
 
 (x) Appendix. II. infra. 
 
 (y) 50 & 51 Viet. c. 55, s. 34, 
 sub-s. (f). See Appendix II. infra. 
 
 (z) Sparks \. Spink, 7 Taunt. 
 311; Fitzpatrick v. Kelly, cited 3 
 T. R. 740. 
 
 (a) A form of this clause is in- 
 the Appendix, infra, Form No. 24.
 
 OFFICERS OF EXECUTION THE SHERIFF. 77 
 
 A most full and able account of the law relating to Chap. n. 
 bailiffs of franchises is to be found in Chapter IY. of Sec " lj 
 Watson's Office of the Sheriff. 
 
 Having thus ascertained the subordinate officers of the 
 sheriff, and the position in which they stand with refer- 
 ence to him, it will be well to state shortly the practice as 
 to the delivery of writs for execution. 
 
 The writs are not, of course, delivered to the sheriff Delivery of 
 himself, but to his deputy, whether such deputy is an 
 under-sheriff or a deputy appointed in London (i). A 
 receipt for the writ must, if demanded, be given to the 
 person delivering it (c). Where a writ is issued in 
 London for execution by the sheriff of a particular 
 county, it is delivered to the sheriff's deputy in London, 
 who thereupon directs his warrant to the sheriff's officer 
 nearest to the place where the writ is to be executed, 
 or forwards the writ to the under-sheriff of the county who 
 makes out the warrant (d). 
 
 A sheriff's officer is under no duty to receive the writ 
 from the party, but should take it from the deputy or the 
 under-sheriff, together with his warrant to execute it (e). 
 
 Where the writ is issued in a district registry, it is Issue of writ 
 forwarded to the under-sheriff of the county in which it is 
 to be issued, who thereupon makes his warrant in the 
 usual way. 
 
 SECT. 2. LIABILITY OF SHERIFF AND OFFICERS OF EXECU- 
 TION. 
 
 We have seen that for the acts of the under-sheriff, and 
 of the officers of execution, the sheriff is responsible to the 
 parties to the proceedings. In case of any wrong being 
 
 (b) As required by 50 & 51 Viet. usual practice ; see course pursued 
 c. 55, s. 24. in Sawle v. Paynter, 1 Dowl. & Ey. 
 
 (c) 50 & 51 Viet. c. 55, s. 10, 307. 
 
 sub-s. (1). (e) Triminger v. Eeene, "W. N. 
 
 (d) This latter appears to be the (1882), 106.
 
 78 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Nature of 
 sheriff's re- 
 sponsibility. 
 
 General duty 
 to perform 
 what is com- 
 manded. 
 
 committed, in the course of the execution, to third persons, 
 he is also responsible to them. We proceed now to discuss 
 the extent of his duty and responsibility. It is clear that 
 the only justification for any act done is the writ which is 
 directed to him, and, if challenged, the legality of the act 
 must depend upon the authority given by the writ (/). 
 The relief afforded to sheriffs by the Interpleader Acts 
 and rules of court is so extensive, that it is but seldom that 
 any question of the sheriff's responsibility can arise ; where 
 it does, however, it is of two kinds : 
 
 (i.) For the due performance of the mandate contained 
 in the writ ; 
 
 (ii.) For acts done which are not within the mandate or 
 commanded by the writ. 
 
 SUB-SECT, (i). Sheriff's Liability for the due Performance 
 of the Mandate contained in the Writ. 
 
 " In the execution of all writs and process of law the 
 sheriff and his officers must therein do all that which they 
 shall be commanded to do by the writ, and they must 
 pursue the effect thereof in every behalf ; and they may 
 proceed no further or otherwise in the execution thereof 
 than they are authorized by the writ " (#). 
 
 The person most interested in the due fulfilment of the 
 execution is the person pursuing it. We have already 
 seen that where there is neglect or delay in executing the 
 process issued to the sheriff, the Court will summarily 
 compel him to perform his duty, under the ultimate sanction 
 of being attached and committed to prison. The first step 
 against a sheriff who is not doing his duty is to obtain the 
 return of the writ. We have seen that the procedure for 
 this purpose, though formerly by rule nisi against the 
 sheriff, is now, in the first instance, by simple notice under 
 0. LII. r. 11 (h). 
 
 (/) For a plea of justification, 
 Bull. & Le. Pleading, 772, where, 
 also, authorities are set forth. 
 
 (ff) Dalt. 64. 
 
 (h) P. 63, supra; Impey on She- 
 riffs, p. 91.
 
 OFFICERS OF EXECUTION THE SHERIFF. 79 
 
 If the sheriff, after such notice, refuses or neglects to Chap. II. 
 make a return, or if the return, when made, shows that Sec ' 2 ^' 
 
 the mandate has not been obeyed, he will be forced to do No action for 
 
 his duty by process for contempt. For the reason that 
 
 this procedure is provided, no action will lie against him 
 
 for the mere non-return of the writ into Court. The 
 
 breach of his duty in this respect is not an actionable 
 
 wrong (i). 
 
 The true basis of liability in the sheriff to the person Sheriff's 
 setting him in motion is, it is submitted, somewhat un- personlssuing 
 satisfactorily dealt with in many decisions upon the execution. 
 subject. The one duty of returning the writ, which is part 
 of the mandate contained in it, is not, as we have just 
 remarked, the basis of any action for negligence or 
 breach of duty. When, however, we come to the actual 
 execution itself, we find that neglect or refusal to execute 
 the writ, as distinguished from returning it, is an action- 
 able wrong (k) . This action is said to be founded on a right 
 to sue a public officer for neglect of his duty (I). It would, 
 it is submitted, have been clearer and more comprehensible 
 to base the reason of his liability on other grounds. The 
 mandate to the sheriff is a writ directed to him in the name 
 of the sovereign ; it is issued and placed in the sheriff's 
 hands at the instance of the litigant, who is a private 
 
 (i) In the case provided for by whole proceedings have long been 
 
 the Statute of "Westminster II. (13 obsolete. Vide Coke, 2nd Inst. 
 
 Ed. l,o. 39), only recently repealed 449, 452; Wats. Sher. 118; 2 
 
 (50 & 51 Viet. c. 55), there was an Reeves' Hist. 92 ; note to Moreland 
 
 action against a sheriff who did not v. Leigh, 1 Stark. 388. 
 
 return the writ. But delivery of (k) Action for not levying, 
 
 the writ to the sheriff in the County Dennis v. Whetham, L. R. 9 Q. B. 
 
 Court, after the ordinary business of 345. The liability of the sheriff 
 
 that Court was done, was a condi- for negligence in the execution of 
 
 tion precedent to bringing the the writ, and his freedom from lia- 
 
 action. The statute provided that bility for acts ultra the writ, com- 
 
 the person delivering the writ to mitted by his bailiff, is remarked 
 
 the sheriff could demand a bill or upon, Lane v. Cotton, 12 Mod. p. 
 
 receipt for it (compare 50 & 51 488. 
 
 Viet. c. 55, s. 10, sub-s. (1)). The (0 Bac. Abr. tit. Sheriff (M), 1.
 
 80 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Actions 
 against 
 sheriff ; 
 
 for not put- 
 ting writ into 
 execution ; 
 
 for negligence 
 in executing. 
 
 No damage, 
 no action. 
 
 person, and who has complete control over the execution. 
 For the purposes, therefore, of the execution of the writ, 
 the sheriff becomes the mandatory of the person issuing it. 
 If he refuses to execute the mandate, no action should lie 
 against him therefor, but recourse should be had to the 
 tribunal whereof he is an officer. But if the sheriif exe- 
 cutes, or attempts to execute, the mandate of the writ, he 
 should be, as he is now, liable in an action to the person 
 who sets him in motion for any negligence in the perform- 
 ance of his duty. Thus, his position, with regard to actions 
 which it is possible to bring against him, is precisely analo- 
 gous to that of any other mandatory who is liable to the 
 person for whom he undertakes a duty, whether he could be 
 compelled to undertake that duty or not (ni). 
 
 This view of the law has not, however, been entirely 
 that adopted by the Courts. It is established that an 
 action will lie for neglecting to put a writ in execution 
 when opportunity arises (w), as well as for negligence in 
 the execution when undertaken (o). The actions are put 
 on the ground that the sheriff has committed a breach of 
 duty as an officer of the Court (p}, notwithstanding that 
 there should exist, and does exist, against him, the sum- 
 mary process which the Court applies to all its officers. 
 
 Just as in the case of any other mandatory, or of the 
 analogous voluntary bailee, the sheriff is not liable in an 
 action where no damage has resulted from his negli- 
 gence (q). The same rule applies where a false return 
 
 (m) An analogous principle is 
 that underlying the liability of a 
 voluntary bailee. Coggs v. Bernard, 
 2 Ld. Raym. 909. It is submitted 
 that the kind of negligence, in the 
 execution of a writ, for which the 
 sheriff can be made liable, should be 
 limited by the same considerations 
 as in the case of the voluntary bailee 
 whose liability was under discussion 
 in that leading case. 
 
 (n) Eeightley v. Birch, 3 Camp. 
 521. 
 
 (0) Brown v. Jarvis, 1 M. & W. 
 704; Mandettv. Wheble, 10 A. & E. 
 719. 
 
 (p) See, in addition to cases re- 
 ferred to in last note, Hobson v. 
 Thelluson, L. E. 2 Q. B. 642. 
 
 (q) Cases in preceding two notes. 
 There is said to be an exception in 
 the case of negligence in arrest on
 
 OFFICERS OF EXECUTION THE SHERIFF. 81 
 
 has been made; damage must be shown (;). In strict Chap. II. 
 accordance with principle, the return of the writ by the Sec - 2 (1) - 
 sheriff, which, as an officer of the Court, he is bound and Return not 
 can be compelled to make, has nothing to do with an fo^nTaction. 
 action for negligence, either in not executing a writ or in 
 its execution. The action requires no such foundation. 
 
 If the sheriff has executed the writ, and has in his hands Proceeds in 
 
 i * ff T 
 
 or possession the proceeds of the execution, he can be at na ,n<is. 8 
 
 once sued to deliver them up to the person entitled to them, 
 
 the return, again, not being necessary to found the action (5-) . 
 
 It is, of course, valuable evidence, and should be obtained 
 
 by the plaintiff in such an action, because of the prima 
 
 facie case it raises against the sheriff (t) . Besides his Summary 
 
 remedy by action, the person moving the sheriff can put 
 
 in force against him the summary jurisdiction of the sheriff's 
 Court in all cases where a return has been made showing 
 the sheriff to have the proceeds of the execution in his 
 hands, and in such cases this is the most expeditious and 
 convenient method of proceeding (u). 
 
 The sheriff is the mandatory of the person issuing the 
 writ, to the extent that he must obey the instructions 
 given to him, or be liable for the consequences. When 
 he ceases to act as mandatory, the writ is no justification 
 to him (#). Care must be taken to distinguish between a 
 mere mandatory and an agent, of which distinction the 
 importance will shortly be discussed. 
 
 ca. sa. on final process, where the 441, where it is said (p. 450), "It is 
 
 action was held to lie, although no true that the sheriff is an officer of 
 
 damages were proved. Clifton v. the Court, but the Court appoints 
 
 Hooper, 6 Q. B. 468. him to do the plaintiff a service, and 
 
 (r) Stimson v. Farnham, L. E. will not put him in motion, unless 
 
 7 Q. B. 175. at the instance of the plaintiff. It 
 
 (*) Perkinson v. Gilford, Cro. Car. is the plaintiff who is the party to 
 
 539. give the sheriff notice to do or not 
 
 (t) Vide supra, p. 62. to do anything. If it were other- 
 
 (tt) As in Phillips v. Viscount wise the sheriff, upon every writ 
 
 Canterbury, 11 M. & ~W. 619 ; Botten delivered to him, would be bound 
 
 v. Tomlinson, 16 L. J. C. P. 138. to proceed in extremis, until the 
 
 (x) Withers v. Hmly, 2 Buls. 96 ; party were brought into Court." 
 Barker v. St. Quintiii, 12 M. & W. 
 
 E. G
 
 82 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Action for 
 false return. 
 
 Action by 
 person 
 
 against whom 
 execution 
 issued. 
 
 If the sheriff make a false return, i.e., a return which is 
 not true, and damage has resulted (?/), an action can be 
 brought against him. The action is an action on the case, 
 the nature of which is similar to the action for negligence, 
 to which reference has been made. The safest course, 
 after a false return made, is to sue for both negligence and 
 a false return (z) . 
 
 The person against whom execution is issued has an 
 interest that the sheriff shall act properly in the perform- 
 ance of his duty under the writ, and has his remedy also. 
 For example, where money, not properly due under the 
 writ, has been extorted by the sheriff's officer, it may be 
 recovered back from the sheriff by the person from whom 
 it was extorted (a) . And, again, if the negligence of the 
 sheriff, or his behaviour in the execution, has resulted in 
 damage to the person against whom execution has been 
 enforced, he can proceed against the sheriff to recover 
 it (5). 
 
 Where the sheriff remains in possession of the property 
 of the defendant for an unreasonable time, and delays the 
 execution, he becomes a trespasser ab initio (c). We have 
 already pointed out, that after execution has been made a 
 judgment debtor can resort against the sheriff to the sum- 
 mary jurisdiction of the Court to compel the return of the 
 writ (c?). 
 
 (y] Slimson v. Farnham, L. K. 
 7 Q. B. 175; 2ndlnst. 452. 
 
 (z) As was done in Hobson v. 
 Thellmon, L. R. 2 Q. B. 642. 
 
 (a) Woodgate v. Knatchbull, 2 T. 
 R. 148. The action was for treble 
 damages. See Ch. Arch. Pr. 824, 
 and pp. 156, 160, infra. 
 
 (b) Carlile v. Parkins, 3 Stark. 
 163. But it appears that in this 
 case the element of malice was 
 
 present. Gawler v. Chaplin, 2 Exch. 
 503. 
 
 (c) Plat/fair v. Mmgrove, 14 M. & 
 W. 293 ; Ash v. Dawnay, 8 Exch. 
 237. Where " licence is given to 
 anyone by the law, and he doth 
 abuse it, he shall be a trespasser ab 
 initio." Six Carpenters' Case, 8 Hep. 
 146 a. 
 
 (d) Vide supra, p. 63.
 
 OFFICERS OF EXECUTION - THE SHERIFF. 83 
 
 SUB-SECT, (ii). Sheriff 1 s Liability for Acts done not within 
 
 the Mandate of the Writ. 
 
 The sheriff's authority for what he does is the writ, and ultra the writ, 
 the writ alone ; he stands or falls by it, so that where it 
 is a nullity his acts done thereunder are illegal, and can 
 be put right on summary process (e). To put the matter 
 in another form, if any act of the sheriff is challenged, the 
 writ is his justification. Now, the authority given by 
 every writ may be said to be limited with respect to two 
 matters ; in the first place, the acts commanded to be done 
 are defined, and in the second, the persons against whom, 
 or in whose favour, those acts are to be performed are 
 specified. Therefore, any act which is not defined by the 
 writ is not authorized by it, and any person who is in- 
 juriously affected may proceed against the sheriff for 
 having done that for which by the mandate of the writ 
 he has no justification. As to such persons as are parties 
 to the execution, we have already discussed, under sub- 
 sect. 1, their remedy, when the injury to them results 
 from neglect of duty on the part of the sheriff. That 
 discussion was confined strictly to negligence in omitting 
 what was commanded by the writ. It remains to consider 
 injuries, both to parties to the execution and to third 
 persons, taking place ultra the writ altogether. 
 
 Injuries sustained by persons in this manner are essen- Trespass is 
 
 , . n .1 t 1 f !_ PJ, j i the nature of 
 
 tially the sub]ect ot actions for trespass, and as such are the injury, 
 of three kinds: trespass to the person (assault, false 
 imprisonment), or to land (quare claiisumfregit}, or to goods 
 (de bonis asportatis, etc.). Every one of these kinds of 
 trespass may be committed by a sheriff's officer, who has a 
 writ or warrant for execution in his hands; and the 
 sheriff is liable therefor, irrespective entirely of the par- 
 ticular writ of execution that has been issued. 
 
 The grounds upon which the sheriff is liable for acts of Basis of 
 trespass, which he himself has neither committed nor in sheriff. 7 
 
 (e) See Hooper v. Lane, G H. L. C. 443 ; Barkw v. Hall, 2 Anatr. 461.
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Illustrations 
 of sheriff's 
 Bdaftj. 
 
 Stmmyme't 
 
 any way been party to, have formed the subject of judicial 
 discussion. It is said that the reason of the extended 
 liability of the sheriff beyond that of an ordinary person 
 for the acts of those to whom he delegates his authority, is 
 that he is supposed to be executing his duty in person, as 
 he is bound, in the first instance, to do. The impossibility 
 of so doing authorizes him to delegate that authority to 
 another, and he puts that party in his place, and for what- 
 ever that party does, not only when done virtttte mandati, 
 but colore mandati, the sheriff is responsible (/). 
 
 The simplest case is where sheriffs' officers have acted as 
 if there was in existence a writ of execution, whereas none 
 has been issued. Then there is no writ (even if one be 
 issued afterwards) which can justify the trespass, and, 
 subject to proof of the bailiff's authority from the sheriff, 
 the sheriff is liable (g). In other cases, a writ has been 
 issued, but attempted to be enforced against a person, or 
 against property, not specified therein. Here the acts of the 
 sheriffs' officers are ultra the writ altogether. If, for example, 
 under an ejectio firmce of Whiteacre, the sheriff enters upon 
 Blackacre, a trespass is committed, the writ having 
 nothing to do with the matter. Again, an illustration is 
 found in the similar case, where the sheriff had in his 
 hands a writ of fi. fa., directed to levy of the goods of 
 Joseph Jarmain. There were two Joseph Jannains, and 
 the goods of the wrong one were taken. The sheriff was 
 held liable. The writ of fi.fa. did not, in fact, authorize 
 or justify the acts done under it (A). Again, where the 
 bailiff, having a writ of fi. fa. in his hands, arrested the 
 defendant instead of levying on his goods, the sheriff was 
 held liable (i). 
 
 Somewhat different considerations arise where, in the 
 course of the execution of a writ, some act is committed 
 
 (/) Gregory v. CottfreJl, 5 El. & 
 BL p. 585. 
 
 (g) Han T. SoeJte, 8 T. R. 187. 
 (A) The action was trespass. 
 
 Jarmain T. Hooper, 1 Sc. N. R. 663 ; 
 see Dalt. p. 47. 
 
 (i) Smart v. Hutton, 8 A. & E. 
 568, n.
 
 OFFICERS OF EXECUTION THE SHERIFF. 85 
 
 which in terms is not authorized by it. Here the fact of chap. n. 
 the execution is not separable from the injury, and the _ 
 writ must always form an element in the case. The 
 leading authority on this point is Semay tie's ease (k). It 
 appears to be more convenient to discuss in detail the 
 principal resolutions of law in that case under the particular 
 writ which it most affects, that is to say, the writ of fieri 
 facias. The decision itself may, in fact, at the present 
 time be said only to apply to the execution of that writ, 
 changes in the law having taken away its application to 
 other writs. It was long ago decided that most probably 
 the principle had no application to writs of ca. sa. (/). 
 Writs of attachment would appear to be covered by this 
 authority. And as to the writ of ekyit, by the Bankruptcy 
 Act of 1883 it no longer applies to goods (m). The most 
 important resolution come to in the case was, that where 
 the sheriff does what he has, in terms, no authority to do, 
 viz., breaks into the defendant's premises, the breaking in 
 may found an action of trespass or case against the sheriff, 
 but the execution is nevertheless good and valid (). It 
 thus appears that the authority given by the writ to levy 
 of the defendant's goods is a justification of the sheriff for 
 so doing, but not for the act of trespass. At the same time 
 it has been decided that the sheriff cannot return that a 
 house is barricaded, and he cannot enter to see what goods 
 are there; but he must return whether there are goods 
 
 (k} 5 Rep. 91. (n) The very powerful judgment 
 
 (i) Hooper v. Lane, 6 H. L. Ca. of BramwelL, B., in Hooper v. Late, 
 
 443 ; notes in S. L. C. 6 H. L. Ca. p. 453, shows the 
 
 () The whole principle of reasoning 1 on which this principle 
 
 SemaynJs Casf, so far as it decides is based, and is well worth an 
 
 that the sheriff has no authority to attentive perusal. This dictum is 
 
 break open at the suit of a private worthy of notice, " It seems to me, 
 
 person, has been doubted by so high then, that the authorities .... 
 
 an authority as Lord Redesdale. justify me in saying, that an eiecu- 
 
 Etut India Co. v. Eywiston, 3 Bli. tion, however irregularly executed, 
 
 p. 164. is good for the benefit of the party 
 
 when he is void of blame :" p. 472.
 
 86 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Writ justifi- 
 cation for 
 those acts 
 only which it 
 expressly 
 authorizes. 
 
 Liability of 
 person pursu- 
 ing execution. 
 
 Difference 
 between 
 liability of 
 sheriff and 
 party moving 
 him. 
 
 of the defendant or not (o). The last resolution in the 
 judgment in Semay tie's case practically lays down that 
 a stranger may not hide away in his house the defendant's 
 goods, and then sustain trespass against a sheriff who 
 breaks in and executes the writ. The sheriff is justified, 
 in such a case, in breaking in. 
 
 For our present purpose these illustrations show that the 
 sheriff and his officers can lawfully do those things only 
 which are commanded in terms by the writ itself. The writ 
 is (with the somewhat doubtful exception of the case last 
 mentioned (p) ) no defence or justification for any other act. 
 
 Besides the sheriff and his officers, the person who 
 sets him in motion, and who is pursuing the execution, 
 may, in certain events and on certain well defined 
 grounds, be made liable for injurious acts. It is clear, 
 however, that to his liability different considerations apply 
 from those which we have been engaged in discussing. 
 He is not (except, perhaps, where he is, as in the case of a 
 writ of possession, necessarily present) an actual party to 
 the execution. At the same time he is the motive power 
 which sets the engine of the law to work. He may, 
 therefore, be liable in two events : Firstly, where he 
 has instituted process maliciously and without reasonable 
 or probable cause ; and secondly, where he has specially 
 authorized the trespass or particular act of negligence 
 complained of. 
 
 In the first of these cases we have seen that the sheriff 
 is completely justified by the writ under which he acts (q). 
 If that is regular, he is not responsible for any damage, 
 however serious (r). The position of the party is different. 
 
 (o) Munlc v. Cass, 9 Dowl. 332. 
 
 (p) See the terms of the resolution 
 as to covin and fraud, apparently 
 pointing to this, that the sheriff 
 would have to plead the same in 
 any action brought against him for 
 trespass under such circumstances. 
 
 (q) He need not show the writ to 
 
 have been returned. Cheasley v. 
 Barnes, 10 East, 73. 
 
 (r] He, of course, must stand or 
 fall by the regularity of the writ 
 and process thereon. And from 
 this point of view the importance 
 of the rules above referred to, with 
 regard to the correspondence of the
 
 OFFICERS OF EXECUTION THE SHERIFF. 87 
 
 He is not entitled to use the process of the Courts for Chap. II. 
 purposes other than it was intended to be used (s). It is Sec - 2 (") 
 hardly within our province to discuss when an action for Malicious 
 malicious prosecution will lie (t) ; but in order to show 
 clearly the basis of the plaintiff's right in such a case, we 
 cannot do better than adopt the language of the Court in 
 the leading case of Johnstone v. Sutton (u) . 
 
 "There is no similitude or analogy between an action of Johnstone v. 
 trespass, or false imprisonment, and this kind of action. 
 An action of trespass is for the defendant's having done 
 that which, upon the stating of it, is manifestly illegal. 
 This kind of action is for a prosecution which, upon the 
 stating of it, is manifestly legal. 
 
 " The essential ground of this action is, that a legal 
 prosecution was carried on icitliout a probable cause. We 
 say this is emphatically the essential ground ; because every 
 other allegation may be implied from this ; but this must 
 be substantively and expressly proved, and cannot be 
 implied (x). 
 
 " From the want of probable cause, malice may be, and 
 most commonly is, implied. The knowledge of the defen- 
 dant is also implied. 
 
 " From the most express malice the want of probable 
 cause cannot be implied." 
 
 And, again : " The question of probable cause is a mixed 
 proposition of law and fact. Whether the circumstances 
 alleged to show it probable, or not probable, are true and 
 
 writ and the record, is very great. time of Lord Holt, when some cases 
 
 Supra, Chap. I. sect. 4. For a case of extraordinary malignity induced 
 
 of irregularity, where he was ren- the Courts to entertain it." 
 dered liable, see Hooper v. Lane, 6 (M) 1 T. R. 510, p. 544. 
 
 H. L. Ca. 443. (x) The allegation of maliciously 
 
 (s) See this proposition stated in and without reasonable and prob- 
 
 the converse manner, De Midina v. able cause is essential. For the 
 
 Grove. 10 Q. B. 152, p. 176. judgment is good inter parties until 
 
 (t) It was said by Marshall, varied. De Medina v. Grove, 10 
 
 Serjeant, arguendo, in Sinclair v. Q. B. 152, and authorities there 
 
 Eldred (4 Taunt. 7) : " This form cited, 
 of action was not known before the
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Party's 
 liability for 
 irregular 
 execution. 
 
 existed is a matter of fact ; but whether, supposing them 
 true, they amount to a probable cause, is a question 
 of law." 
 
 The sheriff is, of course, not liable in such an action. 
 
 These are the principles which must guide every one in 
 deciding whether such an action is sustainable (y) . 
 
 It remains to be said that it is immaterial what kind of 
 legal process, whether fi.fa. or any other writ of execution, 
 has been employed to put the judgment in force. Once 
 prove damage to the person injured, and an action is well 
 founded on the above principles (s). It is submitted, that 
 where process is " irregularly, and therefore illegally," 
 issued, the liability of the persons so issuing it is based 
 upon the same principles. Process issued under such cir- 
 cumstances appears equivalent to " issued maliciously and 
 without reasonable and probable cause" (a), 
 
 As to the second of the cases above referred to, where 
 a party has expressly authorized a trespass ultra the writ, 
 or negligence in its execution, we have shown that the 
 sheriff is always liable where damage results. But in order 
 that the person moving the sheriff may also be made 
 responsible, some express authority, in addition to the 
 writ, must be shown (&). This is manifestly the case 
 where the act complained of is what we have termed 
 ultra the writ, because that document can alone be, so 
 far as the process of the Courts is concerned, the authority 
 given to the sheriff. It is submitted to be also necessary 
 both where the act complained of is committed in the 
 
 (y) It should be borne in mind 
 that the mere absence of probable 
 cause for the proceeding will not of 
 itself carry the right of action : the 
 plaintiff must show absence of 
 reasonable and proper care. Ar- 
 brath v. North Eastern Hail. Co., 11 
 Ap. Ca. 247. 
 
 (z) For authorities, see the able 
 note to Bull. & Leake's Pleading, 
 
 p. 350, and Goughv. Cribb, 11 M. 
 & W. 497. 
 
 (a) Vide supra, p. 87, and Earlier 
 v. Braham, 2 Wm. Bl. 866. 
 
 (b) " And it is held, that a tres- 
 passer may be, not only he who 
 does the act, but_he who commands, 
 or procures it to be done." Barker 
 v. Sraham, 2 Wm. Bl. 866, p. 868.
 
 OFFICERS OF EXECUTION THE SHERIFF. 89 
 
 course of the execution, and where the wrong is the result Chap. II. 
 of mere neglect of duty on the part of the sheriff. Sec. 2 (11). 
 
 There are, however, in the books many expressions 
 which might well lead to the conclusion, that, by reason of 
 the relation existing between the sheriff and the person 
 placing the writ in his hands, that person is liable for 
 injuries resulting in any manner from the actual execution 
 of process. 
 
 As the examination of these expressions will throw some 
 light on the true position of the sheriff and the person 
 moving him, we will proceed to their explanation. 
 
 In a recent work on the law of the sheriff, it is stated, Relation 
 that " the sheriff is the plaintiff's agent for the purpose of ancTsheriff. 7 
 the execution, and must obey an order not to execute " (c). Agency. 
 It is submitted, that the term agent is here misapplied 
 altogether (d). The sheriff, by the mere fact of the writ 
 of execution being placed in his hands, does not represent 
 the plaintiff in any true sense, nor by that act does the 
 plaintiff become his principal (e) . There is no reported 
 decision, to the knowledge of the writer, where the person 
 moving the sheriff has been rendered liable for an injury, 
 without proof of specific authority from him, or his solici- 
 tor, for the act complained of (/). 
 
 The indorsement on the writ of execution, stating who Effect of in- 
 the execution debtor is, and where he resides, may, how- 
 ever, form such specific authority. If the indorsement 
 thus made on the writ, and taken to be instructions given 
 to the sheriff, is wrong, i.e., untrue, the party pursuing 
 the execution is liable for any trespass consequently com- 
 mitted ; and this is so, although the untrue indorsement 
 may have been made by the solicitor without the express 
 
 (c) The test of "agency" im- (e) There is no precedent of a 
 plied here is peculiar. suit in equity for an account on any 
 
 (d) See Slackford v. Austen, 14 such basis. 
 
 East, 468 ; 8 C. & P. p. 215, n. ; (/) For numerous authorities 
 
 Ramsey v. Eaton, 10 M. & "W. 22. where plaintiff held liable, see 1 
 
 Wins. Saund. 103, n. (g).
 
 90 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 The indem- 
 nity of the 
 party to the 
 sheriff. 
 
 Representa- 
 tion to the 
 sheriff. 
 
 Further test 
 of agency 
 death of 
 party. 
 
 authority of his client (g). It follows that great care 
 should be used by the solicitor in indorsing the writ. The 
 liability of the client is limited to the consequences of acts 
 which are strictly the duty of the solicitor, such as the 
 indorsement above mentioned. The client cannot, there- 
 fore, be made liable for the results of verbal communica- 
 tions made by the solicitor to the sheriffs officer (A) . 
 
 Every agent is entitled by law to an indemnity from 
 his principal for performing lawful acts within the scope 
 of his authority (i) . But the sheriff is not by virtue of 
 the writ, nor of his office, entitled to any such indem- 
 nity (k) : in fact it was necessary before the Interpleader 
 Acts, for him to apply to the Court to enlarge the time for 
 him to return the writ in cases of adverse claims ; so that 
 the plaintiff might, if he wished the question litigated, 
 enter into an express indemnity to the sheriff (/). It is 
 true that the sheriff can recover when the person moving 
 him makes a representation or gives him express authority 
 on which he acts, in case that representation or authority 
 causes him loss or damage (m). It is said, that such a 
 representation is evidence of an implied contract to indem- 
 nify, apart altogether from the principles of agency. This 
 shows that the relationship does not exist ; for where it is 
 once established, the indemnity follows as a necessary 
 legal consequence. 
 
 Again, we have already seen that where the writ is in 
 the sheriff's hands, and the person moving him dies, he 
 
 (ff) Jarmain v. Hooper, 1 Sc. N. R. 
 663. See, also, Bates v. Pitting, 6 
 B. & C. 38 ; Cameron v. Lightfoot, 
 2 Wm. Bl. p. 1192. 
 
 (h) Smith v. Seal, 9 Q. B. D. 
 340, where Jarmain v. Hooper, ubi 
 supra, is distinguished. 
 
 (i) Story on Agency, 339. 
 
 (K) It was once disputed, that an 
 indemnity to the sheriff could be 
 recovered upon, but held otherwise. 
 Arundel v. Gardiner, Cro. Jac. 652. 
 
 (/) Rex v. Sheriff of Devon, 1 Chit. 
 Rep. 643, and note, for authorities 
 collected. Ledbury v. Smith, 1 Chit. 
 Rep. 294. 
 
 (m) Without an express indem- 
 nity the sheriff cannot maintain his 
 action, except apparently on the 
 representation of the person moving 
 him. Humphry s v. Pratt, 5 Bli. 
 (N. S.) 154 ; Dugdale v. Lowering, 
 L. R. 10 C. P. 196, and judgment 
 of Brett, J.
 
 OFFICERS OF EXECUTION THE SHERIFF. 91 
 
 must, in certain cases, still go on (). This is conclusive Chap. IT. 
 against the existence of agency. We need further only Sec " 2 
 point to the nature of the actions sustainable at common 
 law against the sheriff. 
 
 There is authority of the highest nature for terming the 
 sheriff an agent, but in most cases the statements to that 
 effect are modified by some qualifying phrase (o) . It is 
 submitted that, for the sake of clearness, the term should be 
 discarded altogether. 
 
 We arrive at the real basis of the suitor's liability when 
 we allege, that he is answerable only for those acts which 
 he expressly authorizes (p). 
 
 The contrast between the liability of the sheriff and that ^e of plead- 
 of the suitor is, in rules of pleading, well exemplified O nabove 
 thus : The sheriff (being bound to proceed when required consid eration. 
 so to do (<?)) pleads as his justification the writ delivered 
 to him to execute (r). The suitor (being bound to show 
 the regularity of his process as well as the sheriff's) pleads 
 as his justification both the judgment and the writ of exe- 
 cution () . It follows that the suitor may be liable, in the 
 case of malicious prosecution, or irregularity in the judg- 
 ment and proceedings, for the wrongful act, while the 
 sheriff, the process to him being regular, is not (f). 
 
 (n) ride supra, Chap. I. sect. 3, (q) Withers \. Henly, 3 Buls. 96 ; 
 
 sub-sect, (iv) ; Tidd's Pr. 1245. Cro. Jac. 379; Barkers. St. Quintin, 
 
 (o) Bramwell, B., in Hooper v. 12 M. & W. 441. 
 
 Lane (6 H. L. Ca. 443, p. 468), (r) In the same way, the vendee 
 
 says the sheriff is "to some extent from the sheriff under a writ of 
 
 an agent of the execution creditor, fi. fa., in an action in which he and 
 
 or at least his acts are to some ex- the former defendant are parties, 
 
 tent the acts of the suitor." See e. g., ejectment of a term sold, 
 
 Martin, B., in Barker v. St. Quintin, need not produce the judgment, the 
 
 12 M. & W. 441. writ is sufficient. Doe d. Batten v. 
 
 (p) It may be observed that on Murless, 6 M. & S. 110. 
 
 principle, not only is the plaintiff (*) Cotes v. Michill, 3 Lov. 20 ; 
 
 or suitor liable, but also his attorney, Bryant v. Glutton, 1 M. & W. 408 ; 
 
 if he have authorized or procured Andrews^. Morris, 1 Q. B. 3, p. 16; 
 
 the wrongful act. Barker v. Bra- Bull. & Le. PI. 770. 
 
 ham, 2 Wm. Bl. 866 ; Bates v. (t) See Collett T. Foster, 26 L. J. 
 
 Pilling, 6 B. & C. 38. Ex. 412 ; Carrett v. Smallpage, 9
 
 92 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Regularity of 
 process a 
 justification. 
 
 Regular 
 judgment 
 reversed on 
 appeal. 
 
 So long as the judgment or order stands, it will justify 
 a regular writ of execution based thereupon ; and so long 
 as the writ of execution is not set aside, it will justify 
 (unless it is on its face a void proceeding) all acts in due 
 course done under it. A party, therefore, deeming him- 
 self injured by acts done under and not ultra the judgment 
 and writ, must first set aside, as illegal or irregular, such 
 judgment or order, as the case may be (u). The mere 
 fact, however, that a judgment or order can be set aside, is 
 not of itself sufficient to show that the proceedings under 
 it were unjustifiable ; and clearly, where it is subsequently 
 reversed as being wrong in point of law, all regular pro- 
 cess under it before the appeal is heard is good, and 
 affords a justification to all parties acting under it (#). 
 
 East, p. 346 ; Perkins v. Plympton, 
 5 M. & P. 731 ; 7 Bing. 676. The 
 irregularities which made the exe- 
 cutions in these two last-mentioned 
 cases invalid would be almost im- 
 possible to happen now. Vide 
 supra, p. 35 ; Turner v. Felgate, 1 
 Lev. 95. The sheriff may justify 
 under the writ, although it be void. 
 Parsons v. Loyd, 3 "Wils. 341. 
 
 Nares, J., took broad safe ground 
 for his judgment ! 
 
 (u) Jones v. Williams, 8 M. & W. 
 349. 
 
 (x) Williams v. Smith, 14 C. B. 
 N. S. 596 ; Smith v. Sydney, L. R. 
 5 Q. B. 203 ; 39 L. J. Q. B. 144. 
 See authorities on this subject, 
 summarized, Ch. Arch. Pr. 831 et 
 seq.
 
 CHAPTER III. chap, in. 
 
 THE WRIT OF POSSESSION. 
 
 IT is intended in this Chapter to treat of the enforcement 
 of judgments and orders for the recovery of land. 
 
 By 0. XLII. r. 5, "A judgment for the recovery or O.XLll.r. 5. 
 for the delivery of the possession of land may be enforced passion 
 by writ of possession." 
 
 By r. 1 of 0. XLVIL, which is headed " Writ of Pos- 0. XLVII. 
 session," " A judgment or order that a party do recover jument for 
 
 possession of any land may be enforced by writ of pos- possession 
 session in manner before the commencement of the prin- 6 
 
 cipal Act used in actions of ejectment in the Superior possession. 
 Courts of Common Law." 
 
 By 0. XLVII. r. 2, " Where by any judgment or order 0. XLVII. 
 any person therein named is directed to deliver up pos- r ' ' 
 session of any lands to some other person, the person 
 prosecuting such judgment or order shall, without any 
 order for that purpose, be entitled to sue out a writ of 
 possession on filing an affidavit showing due service of 
 such judgment or order, and that the same has not been 
 obeyed." 
 
 The two last rules appear to be simply an amplification 
 of the first. 
 
 The writ of possession prescribed by the rules (a) is in Form of Y rifc 
 . of possession. 
 
 the following form : 
 
 " Victoria by the grace of Grod, &c. 
 " To the sheriff of greeting : 
 
 " Whereas lately in our High Court of Justice, by a 
 
 () O. XLII. r. 14.
 
 94 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. judgment of the Division of the same Court [A. B. 
 
 recovered] or [E. F. was ordered to deliver to A. B.] 
 possession of all that with the appurtenances in your 
 
 bailiwick: Therefore, we command you that you omit 
 not by reason of any liberty of your county, but that you 
 enter the same, and without delay you cause the said A. B. 
 to have possession of the said land and premises with the 
 appurtenances. And in what manner, &c. 
 
 " And have you there then this writ. 
 
 " Witness, &c." (4). 
 
 It is almost needless to observe that this writ must, like 
 all other writs of execution, conform to the general prin- 
 ciples and rules discussed in Chapter I., supra. 
 
 SECT. 1. NATURE OF THE JUDGMENT OR ORDER FOR 
 POSSESSION. 
 
 It will be seen immediately that the writ of possession, 
 if not the simplest in its working and effect of all writs of 
 execution, is at least as simple as any. It is not strictly 
 necessary to an explanation of the practice with reference 
 to this writ, that the nature of the judgment or order it 
 enforces should be discussed; but the position of the suitor, 
 both before and after execution completed, will be much 
 better understood if we bear in mind the kind of pro- 
 ceeding which leads to it. "We will attempt, therefore, a 
 short summary of the law relating to judgments and orders 
 for recovery of land. The digression, however, is not in- 
 tended to be an exhaustive exposition of the law on the 
 subject. 
 Judgments Prior to the Judicature Acts there were different modes 
 
 for recovery , , . . , , .. . . 
 
 of land prior 0:t recovering the possession of land, according as it was 
 to Judicature the subject of proceedings at law or in equity. In the 
 
 Acts. 
 
 (I) R. S. C. App. H. Form No. 8 ; Appendix infra, Form No. 26, and 
 note.
 
 THE WRIT OF POSSESSION. 95 
 
 Courts of law, the proceeding was called an action of Chap. III. 
 ejectment ; in Chancery, the remedy was by suit, the final Sec ' ' 
 decree in which took the form of an injunction. For con- 
 venience, and with a view to follow the language of the 
 Rules of Court, proceedings in the nature of either of these 
 remedies may be called an action for recovery of land. 
 
 The action of ejectment had a long and eventful history. Action of 
 It was based upon a fictitious statement of facts, which ejec 
 the parties to the proceedings were not allowed to dis- 
 pute (c}. We are not concerned to inquire into the nature 
 of these fictions ; but it is of interest to us to ascertain the 
 reasons for the judgment which was given in the action, 
 because it is distinctly the lineal ancestor of that which is 
 given at the present day, and owes its form and substance 
 to the same principles. 
 
 The action of ejectment was applicable only where the Where action 
 i i'n> 11 -i i'ji -i i i i i-n n or ejectment 
 
 plaintm alleged a title by estoppel, or a legal title to the lay. 
 
 land in dispute ; and it could not, therefore, be brought 
 where the plaintiff had an equitable estate only (d} . The 
 judgment obtained was, in its essential part, as follows : 
 " Therefore it is considered, that the said John Doe do 
 recover against the said C. D. his term yet to come of and in 
 
 (c) The anomalous procedure was had, as its basis, an interest in 
 
 not wholly swept away till the land, viz. a term of years, unknown 
 
 Judicature Acts, though the and foreign to the feudal system 
 
 amendments introduced by the of estates. The feudal method of 
 
 Common Law Procedure Act, 1852 procedure by real actions was by 
 
 (15 & 16 Viet. c. 76), abolished the means of it avoided; and certain 
 
 hitherto attendant fictions, and principles (founded on the actual 
 
 gave a special form of action. question in the fictitious action, 
 
 The nature of these fictions has the right of entry) were established, 
 
 been most ably set forth in works which still govern in actions for the 
 
 of great learning on the subject: recovery of land, wherever legal, as 
 
 Cole on Ejectment; Tidd's Prac- distinguished from equitable, rights 
 
 tice, 1218 et seq.; 1 Sp. Eq. Jur. are in question. A sufficiently com - 
 
 232. There is no doubt the fiction plete summary of the history of the 
 
 was invented, adopted, and per- action of ejectment is to be found, 
 
 fected to give the Courts a juris- 3 Steph. Com. 404 et seq. 
 diction which, without its exist- (d) Cole, Eject., 287. 
 
 ence, they did not possess. It
 
 96 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Form of 
 judgment. 
 
 Effect of a 
 judgment in 
 ejectment. 
 
 the tenements, etc." (e). The term of years thus mentioned 
 in the judgment was a fictitious term it had no exist- 
 enceand the legal right to land, which was vested in the 
 owner of a term, was a right to possession merely (/). 
 When, therefore, the proceeding alleging on behalf of 
 the plaintiff a fictitious term was abolished, the question 
 left for trial in every action of ejectment was, and still is, 
 the question of right to possession only (g). And so the 
 judgment in an ordinary action for the recovery of land 
 runs as follows : " It is adjudged that the plaintiff re- 
 cover against the defendant possession of the said land in 
 the said writ mentioned, etc." (h). Except so far as the 
 proceedings operate as an estoppel, which, in strict theory, 
 is a collateral result only, the title to land is no part of the 
 question decided by the judgment, the effect of which is 
 summarised in a learned work (?) as follows : " By a 
 judgment in ejectment the claimant recovers only the pos- 
 session of the land claimed, or some part thereof (with or 
 without costs), but not any particular estate or interest 
 therein. His right and title to the land are precisely the 
 same as if he had never been disseised or dispossessed. 
 If he has a freehold, he is in as a freeholder ; if he has a 
 
 (e) Tidd's Pr. Forms, 648. 
 
 (/) To put the matter plainly, 
 if technically, there is no owner- 
 ship of land recognized in our sys- 
 tem of law as being in any subject. 
 This or that person who has land 
 holds only an estate in it, and his 
 rights depend, first upon his title 
 to, and, secondly upon the quality 
 of, that estate, e.g., for life, in fee, 
 &c. (See Aust. Lect. ed. 1869, p. 
 818.) There is, however, no pro- 
 cess now known whereby that title 
 to which we have just referred can 
 be ascertained and fixed, so as to 
 give the person alleging it a right, 
 having the force of a judicial state- 
 
 ment, in respect to the land. When 
 it existed, the system of real actions 
 constituted a procedure of this na- 
 ture. They were strictly feudal 
 process, and after having fallen 
 out of use, except as a means of 
 conveyance (3 Bl.Comm. 110), were 
 abolished in the last reign (3 & 4 
 Will. IV. c. 27). For an account 
 of the nature of a recovery as a 
 conveyance, see Preston on Con- 
 veyancing, vol. i. 
 
 (y) See forms in Sched. A. to 
 Com. L. P. Act, 1852. 
 
 (A) Chitty's Forms, p. 595. 
 
 (t) Cole on Ejectment, p. 76.
 
 THE WRIT OF POSSESSION. 97 
 
 chattel interest, he is in as a termor ; and in respect of the Chap. m. 
 freehold his possession enures according to right. If he has - ec ' ' 
 no title, he is in as a trespasser ; and without any re-entry 
 by the true owner is liable to account for the profits." 
 (Per cur., in Taylor d. Atkins v. Horde, 1 Burr. pp. 90, 
 114; Ad. Eject. 286, 308) (k). In short, the subject of the 
 action being the right to possession, the judgment itself 
 has no effect beyond declaring that right. 
 
 The estoppel of the judgment and record of the pro- 
 ceedings may well be of the greatest importance to a 
 suitor, and, therefore, in most cases, the record should be 
 completed, and the writ of possession, with the return 
 thereof, duly made and filed. As between the parties to 
 the action, doubtless, the file of the proceedings, including 
 the judgment, is sufficient; but in subsequent dealings 
 with the land, the writ and return are valuable evidence of 
 title, and of the completion of the judgment (/). 
 
 Land, or, rather, an equitable estate in land, might Equitable 
 become, and did, in fact, frequently become, the subject- ^ 
 matter of suits in equity. The decree in such a case was, land, 
 of course, in form merely personal, directing the one party 
 to deliver land to another (m). The person in whose 
 favour such a decree was made was not, however, bound 
 to proceed to its enforcement by process for contempt. On 
 proof of due service of the decree, and on application, a 
 writ of assistance would be ordered to issue directed to the 
 
 (k) See further, Aslin v. Parkin, tinguished from seisin, the mere 
 
 2 Burr. 665 ; Outram v. Moreicood, possession given under the writ 
 
 3 East, 346 ; Wilkinson v. Kirby, had but little effect in conveyanc- 
 15 C. B. at p. 443. ing. The fact of possession may 
 
 (I) It is probably with a view become of importance, however, in 
 
 to the value of the writ and return some cases, e. g. , in a question under 
 
 as a muniment of title, that it is the stat. 32 Hen. VIII. c. 9, against 
 
 said it should be written on parch- embracery, pretenced titles, &c. 
 
 ment. (Dan. Ch. Pr. 948, n. (d).) (m) In cases where legal title was 
 
 Where any question of seisin arises, in question, the parties were directed 
 
 it is manifestly of importance to to try the matter at law by action 
 
 have the record complete. As dis- of ejectment. 
 
 E. H
 
 98 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Now no writ 
 of assistance. 
 
 The present 
 action for 
 recovery of 
 land. 
 
 When writ 
 
 can issue. 
 
 Receiver's 
 right to the 
 writ. 
 
 sheriff (11). This writ was somewhat more extensive in 
 terms than the writ of possession (o). It has been decided 
 that the writ of possession is now substituted for the writ 
 of assistance (p). In suits in Chancery, however, an order 
 for the possession of land was generally claimed merely as 
 a part of the relief prayed in the suit. 
 
 Usually the decree declared that some person was a 
 trustee, and in that capacity should, subject to the terms 
 of the trust, deliver possession, or the like. It would be 
 going out of our way to inquire what actions, formerly 
 belonging to the exclusive jurisdiction of the Court of 
 Chancery, are now included in the term " action for reco- 
 very of land" (q) ; but it is clear that an action for 
 recovery of land may now be brought to recover pos- 
 session, whether the plaintiff's title is legal or equitable, 
 and the judgment or order may be enforced by writ of 
 possession. The second rule of 0. XLVIL, above quoted (r) , 
 is specially framed to meet the case where the judgment is 
 personal in form, that is to say, where it directs or commands 
 one person to deliver to the other (s) . 
 
 With reference to the words " judgment or order," it 
 may be pointed out that it is not only on final judgment 
 that possession may be ordered to be delivered. For 
 example, there may be an order for a receiver to take 
 possession, in which case there seems no doubt that, under 
 the terms of the rule, he might enforce his possession by 
 
 () Dan. Ch. Pr. 5th ed. 923. 
 
 (o) Seton, Decrees, 1562. 
 
 (p) Sail v. Sail, 47 L. J. Ch. 
 680. 
 
 (q) An action for foreclosure is 
 not, within the meaning of the 
 rule, an action for recovery of land, 
 although there is usually a claim 
 for possession. Tawcll v. Slate Co., 
 3 Ch. D. 629. An action for a de- 
 claration of title is also not such an 
 action. Gkdhill v. Hunter, 14 Ch. 
 
 D. 492. 
 
 () P. 93, supra. 
 
 (s) The effect of this upon the 
 suitor's right to process for con- 
 tempt will be discussed in a later 
 Chapter. It is suggested in Ch. 
 Arch. Pr. p. 1227, that "the form 
 of judgment intended by this rule 
 is only used when judgment is 
 signed on an award." Such a con- 
 struction is, it is submitted, much 
 too narrow.
 
 THE WRIT OF POSSESSION. 99 
 
 means of the writ. The same consequence follows where, Chap. III. 
 in an action for foreclosure, an order is made against the 
 
 defendant for delivery of possession of the mortgaged Foreclo8ure > 
 premises (f). 
 
 Before we discuss the writ of possession itself, it may be Right to enter 
 worth while to ascertain the limits of the right of the m^t^tthout 
 successful suitor to enter upon the land without the assist- writ of . 
 ance of the writ at all. In the books relating to this part 
 of our subject, it is suggested to be unsafe to enter into 
 possession of land in pursuance of a judgment, unless under 
 a writ of hab. fac. (u}. It is submitted, however, that this 
 position cannot be upheld, but that, on the contrary, pos- 
 session so taken is safe. It is clear that whoever can 
 maintain an action for recovery of land may enter peace- 
 ably without action (x). If the person entitled to posses- 
 sion brings his action, and recovers judgment, we have 
 already seen that the defendant is estopped from denying 
 the rightf ulness of the plaintiffs title (y). Now, if after 
 judgment the plaintiff enters, he enters by virtue of his 
 title, and not under the judgment (z). This is entirely 
 in accordance with principle. The reason of the doubts 
 seems to have been the decision in Doed.. Stephens v. Lord (a). 
 
 (t) See O. XVIII. r. 2 ; and technical question, whether or not 
 
 Chitty, J., in Wood v. Wheater, 22 estoppel of record could be pleaded 
 
 Ch. D. 281. where the completion of the estop- 
 
 (M) Adams, Eject, p. 299, and pel depended upon matter in pais. 
 
 p. 344, where it is said, " It would The main principle referred to in 
 
 be imprudent to enter into posses- the text is, however, fully affirmed, 
 sion after judgment without writ." (z) Badger \. Floid, 12 Mod. 398. 
 
 Wats. Sher. 317 ; Cole, Eject. 344. It was there said that in the Ex- 
 
 (x) Butcher v. Butcher, 1 Man. & chequer they had laid a plaintiff 
 
 Byl. 220, p. 221, n. (c) ; 7 B. & C. " by the heels" for entering with- 
 
 399; Barnett v. Earl of Guildford, outwrit when writ of error brought; 
 
 11 Exch. 19, p. 32 ; Butler v. Wallif, and Holt, C. J., said it must have 
 
 Cro. Eliz. 463; Cole, Eject. 73, 689; been by virtue of their equitable 
 
 other authorities, Ch. Arch. 14th ed. power ! Wilkinson T. Kirby, 1 5 C. 
 
 1201. B. 430. 
 
 (y) Vide supra, p. 96 ; Wilkinson (a) 1 Ad. & El. 610. See par- 
 
 v. Kirby, 15 C. B. 430. The point in ticularly the somewhat unguarded 
 
 this case seems to have been a mere words of Patteson, J., p. 614. 
 
 H2
 
 100 
 
 Book I. 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 This case raised, in reality, the question whether a suitor 
 can, by issuing a writ of possession to which he was not 
 entitled, enforce a judgment in his favour. Of course not ; 
 and as he pretends to an authority from the Court which 
 he has not, it is an abuse of the process of the Court. It 
 may be taken, therefore, that the right of the suitor to 
 enter is unaffected by the action or the judgment. 
 
 It is no objection to the writ issuing that, although the 
 term of years upon which the action was brought was in 
 existence when the action was commenced, it had determined 
 before judgment. The defendant is bound to show affirma- 
 tively that the plaintiff in such case has no title (6) . 
 
 This writ was almost identical in form with the lidbere 
 facias seisinam, the usual method of execution in real 
 actions. 
 
 Application 
 of O. XLII. 
 to this writ. 
 
 Material 
 words of 
 mandate. 
 
 SECT. 2. NATURE OF THE WRIT AND EXECUTION 
 
 THEREOF. 
 
 The judgment or order for possession having been made, 
 the suitor is entitled thereupon to his writ of posses- 
 sion (c). Although, under the words of 0. XLII. r. 8, the 
 writ of possession is not one of the "writs of execution " to 
 which the rules expressly apply, it is submitted that the 
 ordinary provisions with reference to writs of execution, 
 for example, rr. 11, 12, and 13, provide for this writ (d). 
 Any construction of the rules which did not allow of this 
 conclusion would leave the issue of this writ to the regu- 
 lations and practice in force before the Judicature Act, 
 and there appears to be no reason for the longer existence 
 of the anomalous practice which then existed. 
 
 The material words of the mandate in the writ are, 
 "and without delay you cause the said A. B. to have 
 
 (b) Gibbins v. Auckland, 1 H. & 
 
 C. 736 ; Knight v. Clarke, 15 Q. B. 
 
 D. 294. 
 
 (c) Tidd's Pr. 1244 ; for form, 
 with note as to costs, see Appendix, 
 infra, p. 404, Form No. 26. 
 
 (<t) Daniell's Ch. Pr. 948 et seq.
 
 THE WRIT OF POSSESSION. 101 
 
 possession of the said premises, etc." It is, therefore, Chap. ni. 
 essential to the due execution of the writ that the plaintiff, 
 
 A. B., or some person authorized by him, should be or Presenc e of 
 
 come upon the land with the sheriff's officer to be let execution. 
 
 into possession. If no such person appears, the sheriff 
 
 cannot, in the nature of things, obey the mandate, and a 
 
 return to that effect is a good return (e). The necessary 
 
 presence of the suitor or his agent at the execution renders 
 
 the duty of the sheriff comparatively simple. The autho- 
 
 rity of the person pursuing the judgment necessarily pre- 
 
 cedes any act by the sheriff's officer, who is consequently 
 
 taken as acting under his directions. The responsibility Consequent 
 
 being thus in a great measure upon the plaintiff, there is 
 
 not the same necessity in judgments for recovery of land fpr the execu- 
 te set out the parcels with minute care. Lord Abinger 
 expresses himself thus : " It has been an established rule 
 in actions of ejectment, ever since I have known the law, 
 that when the plaintiff recovers a verdict, although he 
 proves a title to part only, he may take his verdict 
 generally, unless it is otherwise consented to or arranged 
 at the trial ; but it is at his peril what he takes possession 
 of under the execution" (/). 
 
 The precise description of the land, which was thus 
 ruled to be unnecessary in the verdict and judgment, 
 is not requisite in the writ of possession. The writ 
 is not invalid, therefore, because of its authorizing the 
 sheriff to deliver land of which the boundaries are not 
 accurately denned (g). There is no doubt that where 
 
 (e) Wats. Sher. 322; Cole on King, 1 Burr. 623, at p. 629, are of 
 
 Ejectment, 345. See form of re- some interest. He there, after men- 
 
 turn in Appendix, infra, p. 404, tioning that formerly when eject- 
 
 Form No. 27. mentwas compared withreal actions 
 
 (/) Doe d. Davenport v. Rhodes, it was more fettered, says : "Even 
 
 11 M. & "W. 600, at p. 608. See in a prcecipe I do not know whether 
 
 Roe d. Blair v. Street, 2 A. & E. the sheriff could always be quite 
 
 329. certain which were the particular 
 
 (ff) Lord Mansfield's observa- acres, etc. , of which he was to de- 
 
 tions in the case of Cottenham v. liver possession. But in this ficti-
 
 102 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. injury would be likely to happen from the want of descrip- 
 tion, or misdescription, in a writ of possession, the Court 
 would put it right; but so long as it accords with the 
 judgment its mere indenniteness does not appear to affect 
 its validity (A) . 
 
 Sheriff's duty. The sheriff must deliver complete possession to the 
 plaintiff, and instal him in such premises as are pointed 
 out (i). It is impossible, in an ordinary case, to do this 
 without turning everyone else out of possession (&). The 
 authority given by the writ is wider in this case than 
 Kesolutions in i n those of most other writs of execution. The rule in 
 case. Semayne's case, which is expressed (with no great regard 
 
 for exactness), "the house of everyone is to him as his 
 castle and fortress, as well for his defence against injury 
 as for his repose " (/), has no application to this writ ; for 
 by the second resolution it was resolved : " When any 
 house is recovered by any real action, or by ejectio firmce, 
 the sheriff may break the house and deliver the seisin or 
 possession to the demandant or plaintiff ; for the words of 
 the writ are habere facias seisinam, or possessionem, etc., and, 
 after judgment, it is not the house, in right and judgment 
 of law, of the tenant or defendant." This shows that the 
 sheriff may be compelled to resort in some cases to actual 
 
 tious action, the plaintiff is to show that the sheriff can be required by 
 
 the sheriff, and is to take possession the plaintiff to commit a trespass ; 
 
 at his peril, of only what he has e.g., where upon the face of the 
 
 title to ; if he has taken more than writ it appears that the land which 
 
 he has recovered, the Court will in the plaintiff points out was not the 
 
 a summary way set it right." See land the subject of the action, the 
 
 Connor v. West, 5 Burr. 2672. sheriff would not be required to 
 
 (h) It is very old practice to con- deliver possession. See "Wats. Sher. 
 
 fine, by rule of Court, the suitor's 322 (x). 
 
 right to issue execution to certain (k) Upton v. Wells, 1 Leon. 145, 
 
 lands only. Doe d. Forster v. Wand- where persons hid in the house 
 
 lass, 7 T. R. 118 in notis ; Brookes effected dispossession after the 
 
 d. Mencev. Baldwin, Barnes, 468 ; sheriff, and the Court, holding that 
 
 Adams on Ejectment, 300. SeeAp- there had been no execution in 
 
 pendix, infra, Form No. 29, p. 404. fact, awarded a new writ. 
 
 (i) It is not meant, of course, (I) First resolution.
 
 THE WRIT OF POSSESSION. 103 
 
 violence, and is justified in doing so. He should, there- Chap. in. 
 fore, when it is apprehended to become necessary, call _ 
 the posse comitatus to his assistance (m). 
 
 As to the actual delivery of possession, the sheriff is The way in 
 
 under no duty to deliver each house or each acre separately ^^ P 088es - 
 
 ,,,,.,,, 8lon ls 
 
 where all which have heen recovered are in the occupation delivered. 
 
 of one person, but he may deliver one house or one acre 
 in the name of the whole (). But if the several houses 
 recovered are in the possession of several persons, the 
 sheriff must deliver each house separately, and one in 
 the name of all is not sufficient (o). Where the judgment 
 is for an undivided part of premises, it appears that the 
 other persons in possession should not be ousted; for 
 example, where judgment was given for five-eighths of a 
 cottage, it was held that the sheriff exceeded his duty in 
 turning the tenant of the remaining three-eighths out of 
 possession (p). 
 
 The sheriff must be in a position to return particularly sheriff's 
 of what acres, lands, and premises he has put the plaintiff return, what 
 into possession (q) . And there can be no doubt but that contain, 
 on a false return the sherifi may be sued (r] ; for, as has 
 been pointed out, it is possible that the completed record 
 may be of importance to the parties. 
 
 The general principles on which the sheriff is made Relationship 
 responsible in putting in force the execution have been p^uW^ 1 * 7 
 already discussed. They are, of course, the same in this execution and 
 case as in that of other writs. It is submitted, however, 
 
 (>) As to raising the posse eomi- them. 
 
 tatus, see Wats. Sher. p. 73 ; 50 & 51 (p) Roe d. Saul v. Dawson, 3 
 
 Viet. c. 55, s. 8. Wils. 49. 
 
 () Haughton, J., in Floyd v. (q) See form of return, Ap- 
 
 Bethill, 1 Roll. Rep. 421. pendix, infra, p. 404, Form No. 28. 
 
 (o) Roll. Abr. tit. Execution (H), It does not suffice for the sheriff to 
 
 2. Though, if the persons in pos- deliver one acre in the name of 
 
 session will attorn to the person the whole. Molineux v. Ftilgam, 
 
 pursuing the execution, and he Palm. 289. 
 
 consents thereto, there is, of course, (r) Wats. Sher. 322 
 no end to be gained in dispossessing
 
 104 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Contempt by 
 interference 
 with sheriff. 
 
 that, as between the sheriff and the person moving him, 
 the latter can seldom have any good ground of action (s), 
 and, on the other hand, may well be liable to the sheriff. 
 When he points out to the sheriff the lands he alleges 
 himself to have recovered, he makes a representation on 
 which an implied contract to indemnify will arise (t) . It 
 follows that although, where a trespass is committed in the 
 course of the execution, both plaintiff and sheriff are liable 
 to the person injured, the sheriff has his remedy over 
 against the plaintiff. 
 
 Where there is any interference with the execution of the 
 writ, the offenders commit a contempt of Court (11} . The 
 precise time at which the suitor can be said to be in possession 
 is difficult, if not impossible, to define, though it is stated not 
 to be a complete execution until the sheriff or his bailiffs 
 deliver the possession to the party, and are gone away (x). 
 When he is once installed, and can be said to be in quiet 
 possession, a person interfering is a mere trespasser, and 
 clearly commits no contempt. If, straightway upon the 
 withdrawal of the sheriff's officers, the defendant ejects the 
 plaintiff, he no doubt commits a contempt, and can be at- 
 tached (y) ; but the case is different where the plaintiff has 
 been installed for some time, for example a fortnight; 
 there he is relegated to his action of trespass (y}. 
 
 (s) See, for example of successful 
 action against sheriff for damages 
 for delay in execution of writ of 
 hob. fac. poss. Mason v. Paynter, 1 
 Q. B. 974. 
 
 (t) Vide supra, p. 90. Dugdale v. 
 Lovering, L. E. 10 C. P. 196. 
 Formerly, a sheriff always de- 
 manded and obtained an indemnity 
 from the lessor of the plaintiff in 
 ejectment before proceeding to 
 execute the writ. Tidd's Pr. 1245. 
 This was because the plaintiff was 
 a fictitious person altogether. 
 "When, however, the procedure 
 
 was changed by the C. L. P. Act, 
 1854, the sheriff ceased to be able 
 to require it. Cole on Ejectment, 
 345. 
 
 (u) As to power under stat. 8 
 Hen. VI. c. 9, of judge of assize 
 to grant warrant of possession after 
 bill found by grand jury for forcible 
 entry, see Reg. v. Harland, 8 A. & 
 E. 826. 
 
 (x) Kingsdalc v. Mann, 6 Mod. 27. 
 
 (y) Style's case, 2 Br. & Goldsb. 
 216, 253. Where the disturbance 
 took place eight or nine hours after 
 the sheriff's officers had left, it was
 
 THE WRIT OF POSSESSION. 105 
 
 At the time when the writ of hab. fac. was returnable Chap. in. 
 on a day certain in term, in all such cases as those above 
 
 mentioned, where the sheriff returned the facts, a new writ New T"** on 
 might be issued. But where the return that he had given ment where 
 
 possession was made and actually filed, the record being 
 complete, and the Court entitled to it, no new writ would due execution. 
 be allowed, for the reason that an alias writ could not issue 
 after the writ had been executed (s). 
 
 If the trespasser upon the plaintiff to whom possession W^ ere P er8( > n 
 has been given is a stranger to the action, it will require stranger^ 
 something more than the mere fact of trespass to render 
 him liable in contempt. He must, at any rate, have known 
 of the sheriff's execution, and have intended to thwart it. 
 On principle, the procedure against such a third person 
 could, as a rule, be a new action only. 
 
 At the present time, as we have seen, the writ is return- Present 
 able immediately after execution thereof (a) . The execution where due 
 is good whether the writ is returned or not. The discus- execu .tion 
 
 inter! ered 
 
 sion on the subject of alias writs (b) is therefore material with. 
 here. There should be, in the nature of things, no neces- 
 sity for a second or alias hab. fac., issuing after the 
 attempted execution, or partial execution, of the first. If, 
 however, it is determined that the practice under the 
 present rules is to continue as formerly in the issue of alias 
 
 held that an attachment ought not expulsion of him he shall not be 
 
 to go forthwith, but a rule to show estopt ; also if the sheriff give 
 
 cause. Kingsdale v. Mann, 6 Mod. seisin but of part he may have new 
 
 27. The practice in Ireland seems hab. fa. for the rest." This was 
 
 to be to renew the writ of posses- the law when the writ was return - 
 
 sion. Stacpoole v. Walsh, 6 L. E. able on a day certain. Now it is 
 
 Ir. 444. practically obsolete. KingsdaU v. 
 
 (2) Doe d. Fate v. Hoe, 1 Taunt. Mann, 6 Mod. 27 ; 2 Br. & Goldsb. 
 
 55. InDevereuxv-Underhill^Keb. 253; Tidd's Pr. 1247; Eatcliff v. 
 
 245, it is stated that "the party Tate, 1 Keb. 779 ; lessee of Linehan 
 
 hath election to return the writ or v. Anthony, Batty, Ir. R. 453. 
 
 not, and may renew it at pleasure, (a) Doe d. Hudson v. Roe, 18 Q. B. 
 
 till an effectual execution be had, 806. 
 
 albeit the party had actual execu- (b) Vide supra, p. 58. 
 tion ; yet if there were any sudden
 
 106 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Reversal of 
 judgment 
 after execu- 
 tion. 
 Restitution. 
 
 Position of 
 person placed 
 in possession 
 by the sheriff. 
 
 and pluries writs, the authorities last quoted (c) have con- 
 siderable weight. 
 
 Where a judgment is reversed after the plaintiff has 
 obtained possession, a writ of restitution may be awarded 
 to the defendant (d). This was the proper process when 
 appeal from judgments at law was only possible by writ of 
 error. Where irregularity had led to an execution com- 
 pleted, the practice was not to issue a writ of restitution, but 
 to obtain a rule to show cause why the offending party should 
 not restore (e) Under the present practice, the judgment 
 or order of the Court of Appeal would, in nearly every 
 case, provide for the possession being re-delivered up, and 
 in such case a new writ, not of restitution, but of posses- 
 sion, would be issuable on that provision of the order (/). 
 Perhaps the writ of restitution is the necessary means of 
 redress where, after being ordered to re-deliver the land, 
 the plaintiff has absconded, and has not been served with 
 the order (g] . But where the order to restore has been 
 made and disobeyed, the more correct course seems to be to 
 proceed for the attachment of the disobedient party (Ji). 
 The order to restore should be against the party in posses- 
 sion, not against or directed to the sheriff (i). 
 
 It remains to refer, as shortly as possible, to the position 
 of a suitor who has been installed in possession by the 
 sheriff. The judgment gives him no title; the writ simply 
 places him in possession. He, therefore, is in by the 
 
 (c) Vide supra, p. 59. 
 
 (d) Analogous case of order to 
 restore under a writ of sequestra- 
 tion, and dictum of Lord Colches- 
 ter thereon, Pelham v. Harley, 3 
 Swans. 291. 
 
 (e) Doe d. Stephens \. Lord, 1 Ad. 
 & El. 610. 
 
 (/) Form of order to restore, Ap- 
 pendix, infra, No. 30, p. 405. 
 
 (ff) Doe d. Whittington v. Hards, 
 20 L. J. Q. B. 406. The writ is 
 clearly a judicial writ, and yet is 
 
 not always founded upon matter 
 of record. 
 
 (h) This is old practice, especially 
 where the proceedings have been 
 set aside for irregularity. Holt, 
 C. J., Anon., 2 Salk. 588. See 
 Danes d. Povey v. Doc, 2 Win. Bl. 
 892. See, also, note to Stacpoole v. 
 Walsh, 6 L. R. Ir. 444. 
 
 (i) Doe d. Williams v. Williams, 
 4 K & M. 259. See Roc d. Saul v. 
 Daivson, 3 Wils. 49.
 
 THE WRIT OF POSSESSION. 107 
 
 strength of his title, and is deemed, as against the defen- Chap. in. 
 dant and all claiming under him, to have been in pos- Sec ' 2 ' 
 session from the day he alleges his title to have accrued (&), 
 so that he can support trespass for wrongful acts done to 
 the land between that date and judgment. And where 
 possession has been actually delivered under the writ, it 
 may be set aside, together with the judgment on which it 
 is founded, by a third person who is injured by the judg- 
 ment, although he has received no notice of the action (I). 
 
 The sheriff is entitled, on executing a writ of possession, Poundage, 
 to poundage, on a scale which allows him one shilling in 
 the pound for every pound of the yearly value of the land 
 whereof possession is given, where the whole does not 
 exceed the yearly value of 100/., and sixpence in the pound 
 for every pound per annum over and above the yearly 
 value of 100/. (m). 
 
 The sheriff's fees, besides poundage, are given by the Sheriff's fees, 
 scale of fees made in pursuance of 1 Yict. c. 55, and will 
 be found in the Appendix (n). 
 
 (k) From the day of the demise repealed, except as to poundage, 
 
 laid in the declaration. Barnett v. 50 & 51 Viet. c. 55, s. 39, and 
 
 Earl of GuiUford, 11 Exch. 19. snb-s. (5). And see further, as to 
 
 (T) Jacques v. Harrison, 12 Q. B. the law relating to poundage, infra, 
 
 D. 165. Chap. IV., sect. 4. 
 
 (m) 3 Greo. I. c. 15, s. 16, now () Vide Appendix III., infra.
 
 108 
 
 Book I. 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 CHAPTER IY. 
 
 THE WRIT OF FIERI FACIAS. 
 
 "Writ, when 
 
 issuable. 
 
 THE usual method of enforcing a judgment for recovery 
 of money is by realising, under the writ of fieri facias, the 
 personal property of the judgment debtor (a). Recourse 
 may also be had to his real property under the writ of 
 elegit, which we shall discuss fully in the next Chapters. 
 
 On judgment being signed, or an order being made for 
 payment of money, the creditor is entitled, generally, to 
 issue his writs of fi. fa. and elegit as of right. 
 
 Fieri facias, or By rule 17 of 0. XLIL, " Every person to whom any 
 sum of money, or any costs, shall be payable under a 
 judgment or order, shall, so soon as the money or costs 
 shall be payable, be entitled to sue out one or more writ 
 or writs of fieri facias, or one or more writ or writs of 
 elegit, to enforce payment thereof, subject, nevertheless, as 
 follows : 
 
 (a) If the judgment or order is for payment within a 
 period therein mentioned, no such writ as aforesaid shall 
 be issued until after the expiration of such period." 
 
 We have already discussed sub-rule (b) of this rule, re- 
 lating to stay of execution (b) . We have also referred to 
 the terms of 0. XLII. r. 29, as to the order in which 
 writs of execution may issue, and have concluded that, 
 
 may 
 issue for non- 
 payment of 
 money. 
 
 O. XLII. 
 
 r. 29. 
 
 Order of exe- 
 cution. 
 
 (a) An interesting and succinct 
 account of execution at common 
 law, including specially the writs 
 of Jieri facias and levari facias, and 
 their early history, is given in Gil- 
 bert on Executions. See, also, for 
 the history of the writ of Jicri facias, 
 
 Giles v. Graver, 1 01. & F. 72. The 
 writ of levari facias cannot now 
 issue in civil proceedings. Bank- 
 ruptcy Act, 1883 (46 & 47 Viet. 
 c. 52), s. 146. 
 
 (b) Vide supra, p. 39.
 
 THE WRIT OF FIERI FACIAS. 109 
 
 notwithstanding that rule, and the alternative wording of Chap. IV. 
 the rule now under discussion, an execution creditor may ~ 
 issue all writs of execution at once, though he is bound 
 subsequently to elect under which he will proceed (c). 
 
 The execution creditor may, therefore, sue out a writ or Writs into 
 writs into every county in which it is supposed that the counties, 
 execution debtor has property available under them or 
 either of them. At the same time, the creditor must be 
 careful to countermand every other writ than that on 
 which he actually proceeds, or to modify his instructions 
 on such other writ, according as he has received the whole 
 or part of the debt, by a levy on any one of the writs. 
 We have already seen that, under the rules affecting all Second writ 
 judicial writs alike, he is not entitled to issue (except in o/nrst 6 * 1 "" 11 
 the case expressly authorized by 0. XLII. r. 18, of a 
 separate writ for costs) a second writ, directed to the 
 sheriff of the same county as the first, without the return 
 of the latter ((/). This and the cases where leave to 
 issue execution is necessary are the only ones where, 
 under a judgment or order for payment of money, a 
 fieri facias cannot be issued as of right by the suitor 
 entitled thereto. 
 
 It should be mentioned, rather for the reason of more Payment into 
 abundant caution than because it does not appear from the Court - 
 terms of rule 17 above mentioned, that neither a writ of 
 fieri facias nor a writ of e legit is available to enforce a 
 judgment or order for payment into Court. 
 
 By rule 18 of O.XLIL, " Upon any judgment or order Separate 
 
 P ,-, , , execution for 
 
 ior the recovery or payment 01 a sum 01 money and costs, 
 there may be, at the election of the party entitled thereto, 
 either one writ or separate writs of execution for the re- 
 covery of the sum, and for the recovery of the costs, but a 
 second writ shall only be for costs, and shall be issued not 
 less than eight days after the first writ (e). 
 
 (c) Tide supra, p. 47. (e) For form of writ for costs, 
 
 (d) Vide supra, p. 59. see Appendix, infra, p. 406, Form 
 
 No. 33.
 
 110 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. Before this rule, a person issuing execution for the 
 
 amount of his judgment only, without waiting to tax his 
 costs, was deemed to have waived his right to such costs. 
 This rule abrogates the former practice (/). 
 
 O.XLIII.r.i. By 0. XLIII. r. 1," Writs of fieri facias and of elcgit 
 Force of fi.fa. shall have the same force and effect as the like writs have 
 
 and elcgit. , OI-I-IITIT 1-1 
 
 heretofore had, and shall be executed in the same manner in 
 which the like writs have heretofore been executed." 
 
 Form of writ The form of the writ of fieri facias is as follows (g) : 
 of fi. fa. 
 
 [Heading of action or matter. ,] 
 
 Victoria by the grace of Grod, &c. 
 
 To the sheriff of greeting. 
 
 "We command you that of the goods and chattels of 
 C. D. in your bailiwick you cause to be made the sum 
 of and also interest thereon at the rate of 
 
 per centum per annum from the day of 
 
 which said sum of money and interest were lately before 
 us in our High Court of Justice in a certain action [or 
 certain actions, as the case may be] wherein A. B. is 
 plaintiff and 0. D. defendant [or in a certain matter there 
 depending intituled " In the matter of E. F." as the case 
 may be~] by a judgment [or order, as the case may be\ of 
 our said Court, bearing date the day of 
 
 adjudged [or ordered, as the case may be] to be paid by the 
 said C. D. to A. B., together with certain costs in the said 
 judgment [or order, as the case may be~\ mentioned, and 
 which costs have been taxed and allowed by one of the 
 taxing officers of our said Court at the sum of as 
 
 appears by the certificate of the said taxing officer, dated 
 the day of . And that of the goods and 
 
 chattels of the said C. D. in your bailiwick you further 
 
 (/) Harris v. Jewell, W. N. 1883, Forms, Nos. 32, 33, where the mo- 
 
 216. difications of the form, requisite 
 
 (y) Appendix H. Nbs. 1 and 2, under different circumstances, are 
 
 set forth in Appendix, infra, p. 406, also to be found.
 
 THE WRIT OF FIERI FACIAS. HI 
 
 cause to be made the said sum of [costs'] together Chap. rv. 
 
 with interest thereon at the rate 4 per centum per annum 
 from the day of (A), and that you have that 
 
 money and interest before us in our said Court immediately 
 after the execution hereof to be paid to the said A. B. in 
 pursuance of the said judgment [or order, as the case may be~\. 
 And in what manner you shall have executed this our writ 
 make appear to us in our said Court immediately after the 
 execution thereof. And have there then this writ. 
 WITNESS, &c. 
 
 It will be observed that this form of writ provides for As to direc- 
 levying the costs in a manner similar to that providing for c^ts* ery 
 the levy of the principal sum. This clause is not always 
 necessary at the present time ; for under 0. XLII. r. 18, 
 which we have already noted (i), the party pursuing the 
 execution may, within fourteen days of the judgment, 
 issue a separate writ altogether for his costs. This separate Fi.fa. for 
 writ may also be issued, under 0. XL VII. r. 3, in the case writ of pos- 
 where a writ of possession has been sued out and executed, s 688 * 011 - 
 In this last-mentioned case there seems to be no obstacle 
 
 to the issue of the fi.fa. for costs at any time (&). The Fi.fa. for 
 
 ,-, -, ., n -, v . ,1 costs after 
 
 same is the case where a writ or delivery is the appro- -^rit of de- 
 
 priate method of execution ; see 0. XLVIII. r. 2. The Uverv - 
 form of the fi.fa., which is specially given for costs (/), is, 
 in its operative part, identical with the ordinary writ, and 
 the same considerations, as to property seizable and mode 
 of enforcement, apply. For reasons which will more fully 
 appear when we come to the discussion of writs of elegit, a 
 fieri facias cannot be combined or incorporated with that 
 writ (m). 
 
 The form of the writ may be varied to suit the circum- Form van- 
 stances of a particular case ; for example, there being no discontinu- n 
 
 ance. 
 
 (h) As to interest, vide supra, (1) See Appendix, infra, p. 406, 
 
 p. 32. Form No. 33. 
 
 (i) Vide supra, p. 109. (m) Although under sect. 146, 
 
 (k) Subject, of course, to the Bankruptcy Act, 1883, an elegit 
 general provisions of O. XLII. no longer extends to goods.
 
 112 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Arrangement 
 of subject of 
 this Chapter. 
 
 judgment or order for costs of the defendant on a dis- 
 continuance, and yet he being, under 0. XXVI. r. 4, 
 entitled to them, on application to a judge of the Chancery 
 Division, a form of writ adapted to the case was ordered to 
 issue (). 
 
 It is proposed in this Chapter to treat of the law relating 
 to the writ of fieri 'facias, according to the following arrange- 
 ment : 
 
 SECT. 1. Property available under the writ, and the 
 duties of the sheriff with respect thereto. 
 
 2. The writs in aid of the writ si fieri facias. 
 
 3. The effect of certain statutes upon the duties of 
 
 the sheriff under this writ. 
 
 4. The sheriff's right to poundage. 
 
 Mode of 
 
 discussing 
 
 subject. 
 
 Execution at 
 common law. 
 
 SECT. 1. PROPERTY AVAILABLE UNDER THE WRIT, AND 
 THE DUTIES OF THE SHERIFF WITH RESPECT 
 
 THERETO. 
 
 It will be found a convenient method of discussing this 
 subject to take seriatim for explanation the phrases of 
 material parts of the writ. We shall then obtain a 
 description of the particular kinds of property covered by 
 it, and an insight into the various duties of the sheriff in 
 connection therewith. 
 
 The most material direction contained in the writ is, "that 
 of the goods and chattels of C. D. in your bailiwick you 
 cause to be made." There are many kinds of property 
 which are now covered by the phrase " goods and chattels ;" 
 we should, therefore, ascertain its meaning with precision. 
 
 At common law, the only writs available to a judgment 
 creditor were levari facias and fieri facias (o) . To these 
 
 (n) Bolton v. Bolton, 3 Oh. D. 276. 
 (o) See note to Bac. Abr. tit. 
 
 Execution (C), "Of the fi.fa. and 
 lev. ar
 
 THE WRIT OF FIERI FACIAS. 113 
 
 were, by statute, added the capias and the elecjit (p). The Chap. IV. 
 capias ad satisfaciendum was a personal remedy, and applied 
 to a civil action a procedure originally known only in 
 criminal or semi-criminal matters, such as trespass, in 
 the Court of King's Bench. The elegit was invented to 
 seize the rents and profits of land. Before the Statute 
 "Westminster II., by which the last-named writ was given, 
 nothing could be taken to satisfy a judgment for money, 
 save what by the common law was capable of being sold. 
 Nothing, then, can be taken in execution, under a writ of Nothing can 
 fieri facias, that cannot be sold (-). This rule still remains, ^^can^ 
 except so far as it has been modified by the Act of 1 & 2 sold. 
 Yict. c. 110 (<?), whereby certain kinds of property were 
 made subject to the writ, and methods of disposition 
 thereof provided. There were, at common law, two de- 
 scriptions of property which could be sold, firstly, things 
 of which the ownership could be transferred by their 
 delivery, and, secondly, terms of years in land, otherwise 
 or commonly called chattel interests in land. At the Meaning of 
 present time, therefore, the phrase " goods and chattels " ?, g ^Taii<l 
 comprises: (1) chattels strictly so called; (2) terms of chattels." 
 years in land ; (3) certain miscellaneous property, mostly 
 made subject to the writ by statute. 
 
 SUB-SECT, (i). Goods and Chattels. 
 
 The judgment being an authentication of the debt, has Effect of 
 no effect of itself over the property of the debtor, though * and 
 
 it decides the right or title of the successful party to so goods at corn- 
 much property, without specifying whose is the property, 
 in any particular thing (>). But at common law, the 
 
 (p) Gilb. Execution, passim. hound the lands of the debtor, but 
 
 (q) Francis v. Nash, Ca. t. Hard. not his goods. The true signifi- 
 
 53 ; Legg v. Evans, 6 M. & W. 36, cance of this somewhat inexact 
 
 p. 41 ; Wats. Sher. 249. statement will appear when we 
 
 (r) Fleetwood 1 s case, 8 Rep. 171 a. proceed to the discussion of the 
 
 It is usually said that the judgment writ of elegit. 
 
 E. I
 
 114 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Goods 
 
 "bound" by 
 the writ. 
 
 Statute of 
 Frauds, s. 16, 
 
 Construction 
 placed upon 
 the section. 
 
 defendant's goods, though not affected by the judgment, 
 were bound from the date of the teste of the fi. fa. (s) , and 
 might be taken in execution by the sheriff, in the hands 
 even of a person who had bond fide purchased them since 
 that date. The meaning of the expression, that the 
 property of the goods is "bound," is, not that the pro- 
 perty in them is altered, but that the defendant, from 
 the date of the teste, cannot dispose of them, unless 
 in market overt, so as to prevent their being taken in 
 execution (fy. This state of the law was first modified by 
 sect. 16 of 29 Car. II. c. 3, whereby ; " No writ of fieri 
 facias or other writ of execution shall bind the property in 
 the goods of the debtor against whom such writ of exe- 
 cution is sued forth, but from the time that such writ shall 
 be delivered to the sheriff, under-sheriff, or coroners to be 
 executed ; and for the better manifestation of the said time, 
 the sheriff, under-sheriff and coroners, their deputies and 
 agents, shall, upon the receipt of any such writ (without 
 fee for doing the same), indorse upon the back thereof the 
 day of the month or year whereon he or they received the 
 same." 
 
 This section has been construed to apply for the benefit 
 of purchasers and creditors only, (u) . The law upon this 
 point was again modified by sect. 1 of the Mercantile Law 
 Amendment Act, 1856, which we shall, in due course, 
 proceed to explain : but to confine our present remarks to 
 
 (s) The goods were "attendant 
 to answer the execution," the 
 reason given for the goods being 
 bound. Gilb. Execution, 13 et seq. 
 The extent to which goods are 
 bound by Jieri facias is discussed 
 Payne v. Drewe, 4 East, 523. 
 
 (0 iSaund. 219g,note(z!). Note 
 to Lilting ston' s case, 7 Rep. 39 a ; 
 Tidd's Pr. 1000. 
 
 (u) Horton v. Euesby, Comb. 33, 
 where Sir Gr. Treby (ut amicus 
 curice) said, ' ' he was present at the 
 
 making of the said statute, and 
 that was the intention of the par- 
 liament " ! ! S. C., apparently, 2 
 Show. 485; Anon., 2 Vent. 218. 
 The reason for this construction of 
 the statute is nowhere given, but 
 might well be justified by the 
 words of the section : ' ' No writ, 
 etc., shall bind the property, etc." 
 No question of property can arise 
 as between judgment creditor and 
 judgment debtor.
 
 THE WRIT OF FIERI FACIAS. 115 
 
 the Statute of Frauds, a purchaser might safely buy, or a Chap. IV. 
 creditor might put an execution upon, goods, so long as no 8ec - 1 (1)> 
 writ was actually delivered to the sheriff to be executed (#). 
 It follows that, so far as this enactment is concerned, the 
 writ oifi.fa. is, as between the parties to the judgment, 
 of the same effect as at common law. One practical con- Effect of sec- 
 elusion stated to have been drawn from this is, that the o^exwutore* 
 section does not interfere with the right of a plaintiff's * proceed, 
 personal representatives to proceed with the execution, 
 notwithstanding his death after the teste but before the 
 delivery of the writ to the sheriff; nor with the plaintiff's 
 right to proceed in case of the defendant's death at a like 
 period (x) . These two cases have already been discussed, 
 and are subject, as we have observed, to the present rules 
 of practice (y). 
 
 This construction of the statute is certainly available at Present 
 the present time in any case where the debtor makes a gift statute -where 
 
 of his goods and chattels after the date of the teste and claimant is 
 
 . . donee merely, 
 
 before actual execution. That is to say, the protection 
 
 given by the statute would not be afforded to a donee 
 claiming without having given valuable consideration (s). 
 
 Under the present practice, the time of the actual 
 seizure by virtue of the writ is, so far as purchasers (a) are 
 concerned, the crucial point ; for by 19 & 20 Viet. c. 97, s. 1, Merc. Law 
 " No writ of fieri facias or other writ of execution, and no Act, 1856, 
 writ of attachment (6) against the goods of a debtor, shall s - 1> 
 prejudice the title to such goods acquired by any person 
 
 (v) See note (u}, supra. (y) Vide supra, Chap. I. s. 2, 
 
 (x) Waghorne v. Langmead, 1 Bos. sub-s. (iii), and note (u) preceding 
 
 &P. 571 ; and note, for authorities, page. 
 
 Farrer v. Brooks, 1 Mod. 188. The (2) See for an example, though 
 
 old authorities seem all to depend before the statute, Boucher v. Wise- 
 
 upon the rule that the writ of exe- man, Cro. Eliz. 440. 
 
 cution of a judgment in vacation (a) Note that the enactment does 
 
 was tested of the preceding term. not extend to creditors other than 
 
 See cases already referred to, and the creditor pursuing the execu- 
 
 Odes v. Woodward, 2 Ld. Raym. tion. 
 
 850 ; White v. Hayward, 2 Ves. (*) The meaning of this phrase 
 
 Sen. 461. as used in this statute is not clear.
 
 116 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Effect of 
 section on 
 title to goods 
 
 The notice 
 that writ in 
 sheriff' s 
 hands. 
 
 Writ to be 
 executed. 
 
 No applica- 
 tion to terms 
 of years. 
 
 bond fide and for a valuable consideration before the 
 actual seizure or attachment thereof by virtue of such writ ; 
 provided that such person had not, at the time when he 
 acquired such title, notice that such writ, or any other writ 
 by virtue of which the goods of such owner might be 
 seized or attached, had been delivered to and remained 
 unexecuted in the hands of the sheriff, under-sheriff, or 
 coroner." 
 
 This section further protects the buyer's title to goods. 
 Before it was passed, that title depended upon whether a 
 writ of execution over goods against the seller had been 
 delivered to the sheriff (c). Now, the buyer has a good 
 title, unless the goods have been actually seized before the 
 sale. If, however, he has notice that a writ has been 
 delivered to the sheriff, he is not safe in buying, for the 
 common law principle, as modified by the Statute of 
 Frauds, remains. Notice that a writ has been issued 
 merely, without notice that it has been delivered to the 
 sheriff to be executed, will not affect a purchaser. 
 
 It may be remarked that, but for these two enactments of 
 the Statute of Frauds and the Mercantile Law Amendment 
 Act, in favour of purchasers, a satisfactory title to goods 
 which had been once subjected to an execution could be 
 given only where an actual sale under the writ itself had 
 taken place. 
 
 It must be borne in mind a point often of importance 
 between creditors having competing writs of fi. fa. that in 
 order for the 16th section of the Statute of Frauds to have 
 any application, the writ must be in the sheriff's hands 
 to be executed (d). 
 
 From the wording of sect. 16 of Stat. of Frauds, and of 
 sect. 1 of the M. L. A. Act, 1856, it would appear that 
 their provisions have no reference to leasehold interests in 
 land ; and, on principle, the doctrine that the writ binds 
 
 (c) Williams v. Smith, 26 L. J. 
 Ex. 371. Affirmed, 28 L. J. Ex. 
 286, 
 
 (d) Smallcomb v. Cross, 1 Ld. 
 Eaym. 251, Holt, C. J. ; Hunt v. 
 Hooper, 12 M. & W. 664.
 
 THE WRIT OF FIERI FACIAS. 117 
 
 the goods from the date of the teste, has reference only to Chap. IV. 
 goods and chattels (bona et catalla) strictly so called (e). Sec - * (*) 
 
 The 16th section of the Statute of Frauds fixes the Priority of 
 priority which is to be given to several writs of ft. fa. VTiisot J i -f a 
 issued against the same execution debtor. 
 
 The sheriff is equally bound to execute all writs against 
 the same execution debtor, giving priority to each in tht 
 order in which it comes into his hands (/). 
 
 This is the case, of course, where every writ is delivered 
 to him to be executed, for the Statute of Frauds prevents 
 any writ not so delivered from affecting the goods (g), 
 
 The teste of the writ has, as regards competing creditors, Effect of teste 
 no effect (A), so that where a writ, tested the 25th Novem- 
 ber, was delivered to the sheriff on the same day, and a writ, 
 tested the 23rd November, was delivered to him on the 
 27th, the former was held entitled to priority (*'). Where Seizure and 
 the sheriff has in his hands several writs for execution, it is Ba ^^ n ^ er 
 immaterial under which of them the seizure is made, several write, 
 and when he sells, he sells in point of law under all the 
 writs (k), and, therefore, must apply the proceeds as we 
 have stated. 
 
 It would appear that any fraction of a day is sufficient 
 to determine the priority (/), though where the sheriff had 
 delivered to bi-m a number of writs in a bundle, he was 
 
 (e) See Bullock v. Dobbs, 2 B. & Pringle v. Isaac, 11 Price, 445. 
 
 Aid. 258, p. 272, for a learned dis- (h) Unless, it is suggested, seve- 
 
 cussion as to the meaning of the ral writs are delivered simultane- 
 
 term. ously into the sheriff's hands to be 
 
 (/) Dennis v. Whetham, L. R. 9 executed. 
 
 Q. B. 345. (i) Hutchinson v. Johnston, 1 T. H. 
 
 (g) And, therefore, where the 729 ; Sawlev. Paynter, IDowl. &R. 
 
 sheriff is directed not to execute till 307. 
 
 a certain day, a second writ, deli- (k) Jones v. Atherton, 7 Taunt, 
 
 vered into his hands before that 56 ; 2 Marsh. 375 ; Drewe v. Lain- 
 
 day, must be executed first. Kemp- son, 11 Ad. & El. 529 ; 3 P. & Dav. 
 
 land v. Macauley, Peake, 65 ; Hunt 245 ; 1 Saund. 219 g. 
 
 v. Hooper, 12 M. & W. 664. The (I) See next note, and, specially, 
 
 same is the case where the direc- Smallcomb v. Buckingham, Garth, 
 
 tion to the sheriff is not to execute 419, an instructive case, 
 till another execution comes in.
 
 118 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Effect of 
 delivery to 
 sheriff "bind- 
 ing" goods. 
 
 Delivery to 
 be executed 
 constitutes no 
 charge. 
 
 held not to be entitled to a rule to compel the plaintiff's 
 attorney to direct in what order of priority they were to 
 be executed, as he could presumably make a true return, 
 showing that he had fulfilled his duty (m). 
 
 The question of priority becomes of special importance 
 where the writ first delivered to the sheriff is fraudulent 
 or irregular. For example, where it is void under the 
 statute 13 Eliz. c. 5 ; for there the sheriff is, subject to his 
 having notice, bound to disregard the former writ and sell 
 under the later (n) . 
 
 The fact that the delivery of the writ to the sheriff to be 
 executed binds the goods, does not go so far as to affect 
 the title of a purchaser. When, therefore, a sale is made 
 under a second writ, the purchaser acquires a good title, 
 and if the proceeds are paid over to the person pursuing 
 that writ, the remedy of the first execution creditor, who, 
 as we have seen, is entitled to priority, is against the sheriff 
 only. And further, the sheriff is, apparently, not entitled 
 to pay over the proceeds to the first creditor, and return 
 nulla bona to the second writ (o). This, however, would 
 appear to be doubtful, considering the view taken of the 
 sheriff's duty in the cases we have above quoted (p). 
 
 The delivery of the writ to the sheriff to be executed 
 gives the execution creditor no charge over the goods, so as 
 to make him a secured creditor within the meaning of the 
 Bankruptcy Act (<?). All that is given to the sheriff is a 
 mere right to seize, if and when the goods are found 
 within his bailiwick. There is nothing, therefore, illegal in 
 
 (m) Ashworth v. The Earl of Ux- 
 bridge, 2 Dowl. N. S. 377. See 
 note (A) preceding page. The sheriff 
 could, under such circumstances, 
 obtain relief by interpleading. 
 
 (n) See this subject discussed 
 infra, p. 147. 
 
 (o) Smallcomb v. Buckingham, 
 Carth. 419; Rybot v. Peckham, 1 
 T. E. p. 731, note. 
 
 (p) Jones v. Atherton, 7 Taunt. 
 58 ; 2 Marsh. 375 ; Drewe v. Lain- 
 ion, 11 Ad. & El. 529 ; 3 P. & Dav. 
 245. Supra, p. 117. See Patteson, 
 J., in Giles v. Graver, 1 Cl. & F. 
 72, p. 74. 
 
 (q) Ex parte Williams, Re Davies, 
 L. R. 7 Ch. 314 ; Ex parte Nehon, 
 Re Soars, 14 Ch. D. 41.
 
 THE WRIT OF FIERI FACIAS. 119 
 
 the debtor removing the goods into another bailiwick Chap. iv. 
 before they are actually seized (r). There must be actual Sec ' 1 ^' 
 seizure before any right over goods is acquired (s). 
 
 With reference to this kind of property, the sheriff's Duty of she- 
 duty is, that immediately the writ of fi. fa. is delivered to n 
 him to be executed, he must forthwith seize, in his bailiwick, 
 such quantity of the goods and chattels of the debtor as 
 would be reasonably sufficient to pay the amount indorsed 
 on the writ (f}. This is subject to the exception, that the 
 wearing apparel and bedding of any judgment debtor or 
 his family, and the tools and implements of his trade, to 
 the value in the whole of five pounds, are not liable to 
 seizure under execution (u). 
 
 The seizure is effected by a bailiff or sheriff's officer taking 
 actual possession. He acts by virtue of a warrant, addressed 
 to him in the usual manner. It is essential that the 
 officer should take actual possession of the goods, and he 
 must, therefore, enter the place where they are, for other- 
 wise there would be no transfer of possession to him. 
 Whether or not seizure has been made, depends upon the Test whether 
 acts and intention of the officer, and is a question of pure 
 fact (#) . It is not necessary for the sheriff's officer to lay 
 his hand on a single article, and if he, being present at 
 the place where the goods are, says, "I seize everything on 
 this holding," enough is done to constitute a seizure of the 
 whole, whatever the extent of the place or holding may 
 
 (r) Ex parte Williams, supra, last the writ, being the crucial points, 
 
 note ; though what would have been See Martin, B. , in Gladstone v. Pad- 
 
 the effect of his so doing, prior to wick, L. K. 6 Ex. 203, p. 210. 
 
 the Statute of Frauds, might form (u) 8 & 9 Viet. c. 127, s. 8. 
 
 an interesting antiquarian point for (x) Bird v. Sass, 6 M. & Gr. 143 ; 
 
 discussion. and see specially the form of the 
 
 (*) See Backhouse \. Siddle, 38 second question left to the jury. 
 
 L. T. N. S. 487. Balls v. Thick, 9 Jur. 304. In cases 
 
 (t) Gawler v. Chaplin, 18 L. J. of distress, see the weight given to 
 
 Ex. 42; 2Exch. 503. The common the intention of the landlord's agent 
 
 law ' ' attached but little importance for the purpose, Swann v. Earl of 
 
 to the possession of a chattel," the Falmouth, 8 B. & C. 456. 
 signing of judgment, and teste of
 
 120 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Insufficient 
 seizure. 
 
 Retaining 
 possession. 
 
 Effect of 
 abandonment 
 by sheriff on 
 goods them- 
 
 Removal of 
 goods for 
 safety. 
 
 be (y). Where the sheriff's officer, however, simply laid 
 ' his hand on a table, saying " I take this table," then 
 locked up the warrant in the table drawer, and went away 
 without leaving anyone in possession, it was held, that 
 whether he had or not taken sufficient possession, he had 
 relinquished it ; the mere expression of intention, not 
 followed by actual possession, was insufficient (z). It has 
 been said, that the true test of whether a seizure has 
 been made is : supposing the sheriff had not the authority 
 of the Court, could an action of trespass be brought 
 against him (a). 
 
 The officer must retain possession of the goods after 
 seizure. If he relinquishes or abandons possession, he 
 does so at the sheriff's risk of an action for negligence (b). 
 As to the goods themselves, it is submitted that, on strict 
 reasoning, whether the sheriff abandons the possession or 
 not, they remain bound. The Statute of Frauds and the 
 M. L. A. Act, 1854, do not abolish the effect of a writ of 
 execution, but modify it only, so that it binds the goods 
 from delivery to the sheriff or actual seizure only. As 
 expressed in a recent case, where purchasers were not in 
 question, the issue of a writ of execution gives a specific 
 claim to the goods of the judgment debtor (c). 
 
 The sheriff may remove (d) the goods for safe custody, 
 and for his own protection should do so where there is 
 risk of their being injured or rescued (e). It is usually, 
 
 (y) Gladstone v. PadwicJc, L. R. 
 6 Ex. 203, a case on the words 
 " actual seizure" contained in the 
 first section of the M. L. A. Act, 
 above quoted. See Cole v. Davies, 
 1 Ld. Raym. 724 ; Nash v. Dicken- 
 son, L. R. 2 C. P. 252. 
 
 (z) Blades v. Arundale, 1 M. & S. 
 711. 
 
 (a) Bramwell, B., in Mortimore 
 v. Cragg, 3 C. P. D. p. 219. See 
 Andrews v. Saunderson, 1 H. & N. 
 725, p. 728. 
 
 (b) Blades v. Arundale, 1 M. & S. 
 711. The abandonment must be a 
 real abandonment, not a mere tem- 
 porary absence. Ackland v. Payntcr, 
 8 Price, p. 99, per Garrow, B. 
 
 (c) Re Evans, Evans v. Evans, 34 
 Ch. D. 597. 
 
 (d) This is subject to the pro- 
 tection given to landlords for re- 
 covery of their rent, vide infra, 
 sub-s. vi. of this section. 
 
 (e) Atkins, Sher. 229 ; Ch. Arch. 
 Pr. 838.
 
 THE WRIT OF FIERI FACIAS. 121 
 
 however, a saving of expense, for the officer to continue in Chap. iv. 
 possession in the place where the goods are. The judg- Sec - 1 (*) 
 ment debtor, as a rule, does not object to this course, 
 although, perhaps, he could do so (/). 
 
 The effect of the sheriff's possession under this writ Nature and 
 deserves consideration. It has been thus described bv the e ? ec .^,? f 
 
 sheriffs 
 
 late Lord Chief Justice Cockburn: "I think it is a fallacy, possession. 
 however usual it may be in common parlance, to say that 
 the goods are in the possession of the sheriff at all. They 
 are in the custody of the law, and of the sheriff's officer as 
 representing the law ; possession, undoubtedly, as against Distinction 
 a wrongdoer, who might seek to divest him of any portion betw< l en 
 of the goods so seized ; but I think custody only so far as the possession, 
 real owner of the goods is concerned. Until these goods 
 are sold under the authority of the law, virtually they are 
 in his possession (g) ; at all events, as regards everyone but 
 the execution creditor, or the officer of the law who, under 
 the writ of fi. /., is entitled to the custody of the 
 goods" (h). Whatever may be thought of the language in 
 which this is expressed, and the fine distinction drawn 
 between custody and possession, the position of the sheriff 
 can be, to some extent, ascertained from it. The actual 
 decision in the case was that an execution debtor could sell 
 the goods seized under the fi. fa. , and, subject thereto, could 
 make a valid delivery of them to the purchaser (i). It is 
 clear that the seizure does not change the property in the 
 goods, that is to say, they remain the judgment debtor's 
 until they are sold by the sheriff under the writ (k). At 
 
 (/) See Ash v. Dawnaij, 22 L. J. PadwicJc, L. E. 6 Ex. 203, p. 210, 
 
 Ex.59. above referred to; Woodland v. 
 
 (g) "His," meaning apparently Fuller, 11 A. & E. 859. 
 the " real owner's." (i) It may be questioned whether 
 
 (h) Union Bank of London v. the dictum of Cockburn, L. C. J., 
 
 Lenanton, 47 L. J. Q. B. 409 ; see was necessary to the decision. 
 Giles v. Grover, 1 Cl. & Fin. at (K) Authorities summarized by 
 
 p. 77. Compare with this language Patteson, J., in Giles v. Grover, 1 
 
 that of Martin, B., in Gladstone v. Cl. & Fin. pp. 76, 77.
 
 122 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Sheriff's right 
 of action for 
 damage to 
 
 Effect of 
 possession of 
 sheriff. 
 
 As to "appa- 
 rent posses- 
 sion." 
 
 As to " order 
 and disposi- 
 tion." 
 
 the same time, the sheriff can maintain an action in respect 
 of any damage done to the goods which have been seized. 
 In the older cases this is put on the ground that the sheriff 
 acquires, by the fact of the seizure, a " special property " 
 in the goods (/), but it is submitted that on principle it is 
 a fallacy to say that he acquires any interest under the 
 writ, in the goods themselves, though it places him in a 
 position to bring personal actions for damages done to 
 them (m). 
 
 Although the sheriff acquires no property in the goods, 
 for they become in no sense his, and although, according to 
 the statement of his position to which we have referred, he 
 is alleged in one sense not to take possession of them (n), 
 the change of fact and circumstance, which necessarily 
 takes place by the seizure and holding by the officer, has 
 some particular effects of its own. For example, goods so 
 seized are, by the fact of such seizure, taken out of the 
 " apparent possession " of the owner within the meaning 
 given to that artistic phrase by the 4th section of the Bills 
 of Sale Act, 1878 (0). Again, where the sheriff takes 
 possession of goods belonging to the judgment debtor, they 
 cease to be in his possession, order, or disposition, within 
 the meaning of section 44 of the Bankruptcy Act, 1883 (p). 
 If, however, the goods seized were not the property of the 
 judgment debtor, and therefore, with respect to them, the 
 
 (I) Wilbraham v. Snow, 2 Saund. 
 47a, in the notes to which will 
 be found the old leaning on the 
 matter. 
 
 (m) See Patteson, J., in Giles v. 
 Graver, 1 Cl. & F. 72, p. 74 et seq. 
 The action is based really upon an 
 injury to the sheriff's possession. 
 The form of action was either tres- 
 pass or trover, see 2 Saund. 47a (1). 
 He could not maintain trespass 
 unless he was, or had been, in 
 actual possession, notwithstanding 
 the "binding" of the goods from 
 
 the date of the teste. See, for an 
 example, Blades v. Arundale, 1 M. 
 & S. 711 (though after Statute of 
 Frauds). 
 
 (n) "Does the sheriff's posses- 
 sion divest the possession of the 
 owner? I should think not." 
 Cockburn, L. C. J., 47 L. J. Q. B. 
 p. 411. 
 
 (o) 41 & 42 Viet. c. 3 1 . Ex parte 
 Sa/ery, Ee Brenner, 16 Ch. D. 668. 
 
 ( p) 46 & 47 Viet. c. 52. Ex parte 
 loss, Re Baldwin, 2 De G-. & J. 
 230.
 
 THE WRIT OF FIERI FACIAS. 123 
 
 possession of the sheriff was merely wrongful, the like Chap. ry. 
 result does not follow, that is, the goods remain in the 8ec- 1 (i) ' 
 debtor's order and disposition, notwithstanding the 
 seizure (<?). 
 
 Another alleged effect of the seizure is described as Effect of 
 follows : " As soon as the sheriff seizes the debtor's goods ^^sion'as 
 under the writ, he is thereby absolutely discharged to the regards dis- 
 extent of the levy, whether the sheriff sells the goods or debtor! 10 
 returns the writ or not " (r). The accuracy of this some- 
 what ambiguous statement, in whatever sense it may be 
 read, is questionable. It is submitted that the debtor is 
 not discharged by the seizure at all, but by, and to the 
 extent of, the levy, that is to say, to the extent of the 
 sum realised by the execution (.$). Where the fi. fa. 
 is duly executed, and the money levied by the sheriff, 
 it is a complete discharge to the debtor whether the 
 money gets to the creditor or not (#). There is also 
 authority for the statement which we have quoted, that 
 when the sheriff seizes the goods by virtue of the writ, the 
 defendant is actually discharged (M) ; but, on principle, this 
 seems to be doubtful, for the goods remain the property of 
 the judgment debtor until they are sold, notwithstanding 
 the seizure, and the levy is not completed until the sale (a;). 
 In the case where the sheriff returns that he has the goods 
 in his hands, where they remain for want of buyers, and 
 also returns the value of the goods, the return is, perhaps, 
 
 (q) Barrow v. Bell, 25 L. J. Q. B. (s) See definition of word "levy," 
 
 2; Ex parte Lamb, 14 W. R. 112; Sweet's Law Lexicon; Drewe v. 
 
 ExparteEdey, Re Cuthbertson, L. R. Lainson, 11 Ad. & El. 529. 
 19 Eq. 264. (t) Perkinson v. Gilford, Cro. Car. 
 
 (r) Ch. Arch. Pr. 869, and autho- 539 ; Taylor v. Baker, 2 Mod. 214 ; 
 
 rities. The principle was stated Holt, arguendo. 
 by Campbell, arguendo, "an exe- (w) Clerk v. Withers, 6 Mod. 299. 
 
 cution must be deemed a satisfac- See report in 2 Ld. Eaym. 1072 ; 
 
 tionof the debt until the contrary Bac. Abr. tit. Execution (D.). 
 appears." Green v. Elgie, 3 B. & (x) See Tidd's Practice, 1019; 
 
 Ad. 437 ; 1 Dowl. 344. Wats. Sher. 273.
 
 124 
 
 Book I. 
 
 Sheriff's duty 
 to sell. 
 
 Mode of 
 selling. 
 
 Bankruptcy 
 Act, 1883, 
 s. 145. 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 a discharge pro tanto, for the reason that it is said the 
 sheriff must find buyers at the appraised value (y). 
 
 It is the duty of the sheriff to sell the goods, if the 
 judgment debtor do not at once satisfy the creditor (z). If 
 the sheriff do not perform, or delay in the performance of, 
 this duty, an action will lie against him, and the action will 
 lie at the suit both of the plaintiff (a) and of the defen- 
 dant (b). The sheriff cannot sell the goods without first 
 seizing them (c). The sheriff cannot retain the goods and 
 pay the plaintiff (d], nor can he deliver the goods to the 
 plaintiff in satisfaction of his claim, without being liable to 
 an action by the defendant (e) . If the sheriff is guilty of 
 negligence in selling, for instance, at an undervalue (), 
 he is, of course, liable on the general principles we have 
 already discussed. He is also liable if he sells more than 
 enough to satisfy the writ (g) . 
 
 The manner and mode of sale was, until recent years, 
 entirely in the discretion of the sheriff, that is, he could 
 enter into what contracts of sale he pleased respecting 
 goods and chattels seized. By the Bankruptcy Act of 
 1861 (A), a regulation was introduced, whereby every sale 
 of goods under an execution for a sum exceeding 50/., 
 must have been by public auction. This section was not 
 renewed in the Bankruptcy Act, 1869, but under sect. 145 
 of the present Act (i), " Where the sheriff sells the goods 
 of a debtor under an execution for a sum exceeding 201. 
 
 (y) Vide infra, p. 410, n. (p) ; 
 E. v. Bird, 2 Show. 87. 
 
 (z) Tidd's Practice, 1013; 1 
 Vent. 7. 
 
 (a) Keightley v. Birch, 3 Camp. 
 521 ; Mulktt v. Challis, 20 L. J. 
 Q. B. 161. 
 
 (b) Carlile \.Parkins, 3 Stark. 163. 
 
 (c) Ex parte Hall, Re Townsend, 
 14 Ch. I). 132. But vide infra, 
 p. 126, as to ships. 
 
 (d) Wallers. Weedale, Noy. 107. 
 
 (e) Thompson v. Clerk, Cro. Eliz. 
 504. 
 
 (g} Aldred v. Constable, 6 Q. B. 
 370. He must stop the sale, so soon 
 as sufficient to satisfy the execu- 
 tion has been obtained. Cook v. 
 Palmer, 6 B. & C. 739 ; Batchelor 
 v. Vyse, 4 Moo. & Sc. 552. 
 
 (h) 24 & 25 Viet. c. 134, s. 74. 
 
 (i) 46 & 47 Viet. c. 52.
 
 THE WRIT OF FIERI FACIAS. 125 
 
 (including legal incidental expenses), the sale shall, unless Chap. rv. 
 the Court from which the process issued otherwise orders, 8ec - * (*) 
 be made by public auction, and not by bill of sale or 
 private contract, and shall be publicly advertised by the 
 sheriff on and during three days next preceding the day of 
 sale." 
 
 The seizure and sale of farming stock in execution, is Farming 
 regulated by statute, the short effect of which is to restrain s1 
 altogether the sale of straw, manure, or turnips, for the 
 purpose of being carried off the farm, and to subject all 
 hay, grass, or roots, the produce of the land, to the terms 
 of any agreement between landlord and tenant, with 
 respect thereto. Further regulations are made as to the 
 landlord's interest, and his right of distress (). 
 
 The sale by the sheriff gives an indefeasible title to any Title under 
 purchaser (/). But this statement must be taken with the ^ by sheriff, 
 limitation that a sale by a sheriff is not a sale in market 
 overt, and therefore gives absolute title to such goods only as 
 were the defendant's (m). The title depends not upon the 
 judgment, but upon the sale under the writ. For if the 
 judgment be set aside or reversed subsequently to the 
 sale, the property in the goods will have passed (). It is 
 submitted, therefore, that where a sale by the sheriff is 
 made without complying with the formalities of the above 
 enactments, such sale would be good (0) . For example, if the 
 sheriff had advertised for two days only, and then sold, it 
 would be idle to contend that the property in the goods did 
 not pass. The sheriff would, of course, be responsible for 
 any damage which might have occurred in consequence 
 
 (k) 56 Geo. 3, c. 50. Lush Pr. (m) That is, such goods as the 
 
 606. sheriff is by the writ directed to 
 
 (1) 5 Rep. 90 b. Hernaman v. sell. See Lancashire Waggon Co. v. 
 
 Sowker, 11 Ex. 760. See Doe d. Fitzhugh, 6 H. & N. 502. 
 
 Stevens v. Donston, 1 B. & Aid. 230. () Hoe's Case, 5 Rep. 90 a. See 
 
 The purchaser here includes the Doe d. Emmet tv. J%w>lM. &S.425. 
 
 plaintiff and a trustee for him. (o) See for a case of some irregu- 
 
 Stratford v. Ticynam, Jac. 418; larity, Wright v. Child, L. R. 1 Ex. 
 
 Leader v. Danvers, 1 Bos. & P. 359. 358.
 
 126 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Receiver in 
 lieu of sale. 
 
 Execution 
 against ships, 
 and shares in 
 ships. 
 
 of the informality. It may be mentioned, that an execu- 
 tion creditor may apply to the Court, exparte, for leave to 
 sell by private contract (p). 
 
 Where there is a dispute as to the property in the goods 
 seized, and irrevocable injury might be done if the sheriff 
 sold, a receiver will be appointed, pending the trial, on 
 interpleader of the question whose the goods are, and the 
 sheriff released from responsibility in the matter (q). 
 
 Again, in cases where there has been a seizure by the 
 sheriff, and an appointment of a receiver for other purposes 
 than execution, there may be circumstances under which 
 parties may come to the Court and ask for such an order 
 as may equitably work out the rights of the parties (r). 
 
 A ship is a chattel, and may be taken in execution 
 under a fi. fa. A share in a ship may also be taken just 
 as a share in any other chattel. When a ship is a British 
 ship it must be registered under the Merchant Shipping 
 Act, 1854 (s), and must be transferred, and any share 
 therein must be transferred, by bill of sale (t). This regis- 
 tration is not necessary where a ship is not a British ship, 
 for instance, where it has been built in a British yard for 
 sale to a foreigner. A sale of such a ship may, therefore, 
 be made by delivery, without the necessity for any bill of 
 sale, just as in the case of any other chattel (u}. When, 
 however, the ship is once registered, once a British ship, 
 the only legal method of transferring it, or any share in it, 
 is by bill of sale, as required by the Act to which we 
 have referred (#). These statutory provisions affect, to a 
 
 (p) Huntv. Fensham, 12 Q. B. D. 
 162. There appears to be no pro- 
 visions for the sheriff's charges, at 
 any rate, of appraisement, even in 
 case the necessary order of the 
 Court is obtained. Phillips v. Vis- 
 count Canterbury, 11 M. &. W. 619 ; 
 Ch. Arch. 36, 1701. 
 
 (q) Howellv. Dawson, 13 Q. B. D. 
 67. 
 
 (r) See dictum of Kindersley, 
 V.-C., in Defries v. Greed, 34 L. J. 
 Ch. 607. 
 
 (*) 17 & 18 Viet. c. 104, s. 19. 
 
 (t) Sect. 55. 
 
 (u) Union Bank \. Lenanton, 3 
 C. P. D. 243. 
 
 (x) Liverpool Borough Bank v, 
 Turner, 1 Johns. & H. 159; af- 
 firmed 2 De G. F. & J. 502.
 
 THE WRIT OF FIERI FACIAS. 127 
 
 considerable degree, the seizure and sale in execution of chap. IV. 
 ships and shares in ships. Sec - l (*) 
 
 When a ship belonging to the execution debtor, that is, ship seizable 
 of which he is sole owner, is within the bailiwick of the /> 
 sheriff, it is clear, without referring to authority, that he 
 can, under a writ vifi.fa., seize the ship and sell it by the 
 only legal method of transfer, a bill of sale (y). It does Seizure 
 not appear, however, to be absolutely necessary that the mmecessai 7- 
 sheriff should seize at all, because actual delivery of the 
 ship to a purchaser on a sale is not essential to the transfer 
 of the property therein (z), in the same way that the sale of 
 a share in a ship has always been held to be good without 
 actual delivery (a). 
 
 The practice on executing a writ of fieri facias against a Practice 
 share in a ship, was discussed in the case of Harley v. po* 18 ** 8 
 
 r Harley v. 
 
 Harley (b). In that case the following course was pur- Harley. 
 sued : At the time the writ was delivered into the sheriff's 
 hands to be executed, the ships in which the execution 
 debtor had shares were not in port, but when they came in 
 the solicitors for the execution creditor obtained, by the 
 direction and authority of the sheriff, the certificate of 
 registry of each vessel as it came in. The sheriff made no 
 formal seizure, but the certificates were retained by him 
 until after the sale, when they were returned to the other 
 part-owners of the ship (c). From the certificates thus in 
 the sheriff's hands, the number of shares to which the 
 execution debtor was entitled appeared, and of those shares 
 the sheriff obtained himself to be registered as owner (d). 
 
 (y} Except, as we have remarked, (a) Addis v. Baker, 1 Anstr. 222. 
 
 where it is not a British ship, in (V) 11 Ir. Ch. R. 451. 
 
 which case he sells it just as he (c) This procedure seems ques- 
 
 sells any other chattel. Union Bank tionable. Vide sect. 50 of 17 & 18 
 
 of London v. Lenanton, 3 C. P. D. Viet. c. 104. 
 243. (d) This seems, it is submitted, 
 
 (z) Harley v. Harley, 11 Ir. Ch. to be a method of legal transfer 
 
 R. 451. Where the case of execu- other than by bill of sale; and to 
 
 tion against a ship was taken as be not expressly provided for by 
 
 analogous to that against a term the Merchant Shipping Acts. See 
 
 of years, vide infra, p. 128. sect. 58 of 17 & 18 Viet. c. 104.
 
 128 
 
 Book I. 
 
 Ship at sea. 
 
 Ship away 
 from port of 
 registry. 
 
 Ship or share 
 mortgaged 
 not liable 
 under Jt. fa. 
 
 Property of 
 debtor to be 
 taken only. 
 
 Terms of 
 years. 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 He then, by bill of sale, sold the shares to the purchaser, 
 and the whole transaction was held to be a good sale, not- 
 withstanding that no seizure had been made. 
 
 The case above referred to having decided that seizure 
 by the sheriff is not necessary, it would appear that a fi, fa. 
 may be enforced against a ship which is at sea, and if the 
 sheriff can thus obtain himself to be registered as owner 
 of the shares of the execution debtor, he can transfer 
 those shares, by bill of sale, in the same way as any other 
 owner (e) . 
 
 It is, however, submitted that although the ship is 
 liable to execution, the same course as that pursued in 
 Harley v. Harley could not be taken, so long as the ship 
 was away from her port of registry, without infringing the 
 provisions of sect. 50 of the Merchant Shipping Act, 
 1854 (/). 
 
 Where the ship, or the share in a ship, is mortgaged, a 
 judgment creditor of the mortgagor cannot take her in 
 execution under a fi. fa. (g). The proper course, it is 
 submitted, would, in such case, be to apply for a receiver (h] . 
 
 The general principle that the execution creditor can 
 take only the property of the execution debtor in execu- 
 tion, applies as much to ships as to other property. He 
 cannot, therefore, interfere with the rights of any person 
 having a mortgage or charge before the date of the exe- 
 cution (i). 
 
 SUB-SECT, (ii). Terms of Years. 
 
 The sheriff must, under this writ, sell the defendant's 
 chattel interests in land, where those interests are legal. 
 Execution against equitable estates in a term of years is 
 
 (e) The right to inspect the re- 
 gister is given by sect. 92 of 17 & 
 18 Viet. c. 104. 
 
 (/) 17 & 18 Viet. c. 104. 
 
 (ff) Dickinson v. Kitchen, 8 E. & 
 B. 789. 
 
 (h] Execution, by means of ap- 
 pointment of receivers, is discussed, 
 infra, Book III. Chapter I. Sect. 3. 
 
 (i) Langton T. If or ton, 1 Hare, 
 549.
 
 THE WRIT OF FIERI FACIAS. 129 
 
 discussed in the subsequent chapter on elegit, it having chap. rv. 
 been decided that such an estate cannot, even since the Sec - * (ii) - 
 10th section of the Statute of Frauds, be taken by the 
 sheriff under a,fi.fa. (&). 
 
 It is not necessary for the sheriff to seize the lease or No seizure 
 enter on the lands ; and it is sufficient for the sheriff, he enforceable* 
 having acquired a power of sale by the delivery of the 
 fi.fa., to execute an assignment without any seizure what- 
 ever (/). The usual practice, as appears by the cases 
 referred to in the last note, seems to have been that the 
 lease itself should be seized, and then the term sold. 
 The mandate in this writ does not justify the sheriff in 
 turning out the defendant from his possession, and putting 
 the purchaser in (m) . The sheriff or under-sheriff (w) exe- Mode of 
 cutes an assignment of the term under his seal of office (0), 8( 
 and in his name, to the purchaser, who can then either 
 enter peaceably (p), or bring his action of ejectment (n). 
 
 A. term may be taken in execution, not only under the Execution 
 writ of /./., but also under an eleyit, which latter method 
 
 is, notwithstanding its cumbersomeness and expense, the and 
 preferable course in any case where the term of years is 
 valuable (<?). There are several objections to a sale under Objections to 
 a/./tf. In the first place, the assignment by the sheriff 
 is almost of necessity an unsatisfactory document, for it 
 
 (k) Scott v. Scholey, 8 East, 467. be by deed. Before that statute, 
 
 Vide infra, p. 186. it must have been in writing to 
 
 (1) Coleman v. Rawlinson, 1 F. & satisfy Statute of Frauds. Doe d. 
 
 F. 330 ; Play/air v. Musgrove, 14 Hughes v. Jones, 9 M. & W. 372. 
 
 M. & W. 239 ; 15 L. J. Ex. 26 ; A form will be found in the Ap- 
 
 Harley v. Rarley, 11 IT. Ch. R. pendix, infra, No. 34, p. 407. 
 451, p. 465. (p) Taylor v. Cole, 3 T. R. 292. 
 
 (m) Rex \. Deane, 2 Show. 85. (q) The single advantage, in 
 
 See Burden v. Kennedy, 3 Atk. 739. favour of a sale under & fieri facias, 
 
 The sheriff is not liable for the act seems to be that it cannot be upset 
 
 of the purchaser of the term. Tay- by subsequent reversal of the judg- 
 
 lor v. Cole, 3 T. R. 292. ment. Doe d. Emmett v. Thorn, 1 
 
 (n) Doe d. James v. Brawn, 5 B. M. & S. 427, n. ; vide infra, p. 186, 
 
 & Aid. 243. and Jeanes v. Wilkins, 1 Ves. sen. 
 
 (o) The assignment must, by vir- 195 ; 5 Rep. 90 b. 
 tue of sect. 3 of 8 & 9 Viet. c. 106, 
 
 E. K
 
 130 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. does not recite the term assigned (s). If the sheriff takes 
 upon himself to recite the beginning and end of the term, 
 and the recital is wrong, the assignment is void, there 
 being no such term in existence (t) . No sheriff would, 
 therefore, run the risk of assigning certain limits to the 
 term ; and as all leasehold interests (u) are comprised in the 
 description chattel interests in land, the very uncertainty 
 of what the sheriff is selling depreciates the property. It 
 would appear, also, that a defendant can evade an execu- 
 tion by fi. fa. against his term of years at any time before 
 actual sale by the sheriff. The sheriff makes no seizure 
 of the term, or entry on the land, which cannot, therefore, 
 be said to have been at any time (until sale) delivered in 
 execution within the terms of 27 & 28 Yict. c. 112, s. 1 (x) ; 
 and the legal estate continues in the judgment debtor until 
 sale thereof (y). If, therefore, the debtor sell to a bond 
 fide purchaser without notice of the writ of execution, it 
 would, it is submitted, be impossible to dispute his title (2). 
 
 Where there is in a lease a clause avoiding it on its 
 being taken in execution, it cannot, of course, be sold under 
 a ft. fa. or any other writ, but a mere clause against 
 assignment, without leave of the lessor, will not have this 
 effect (a). 
 
 Rent-charge. A rent-charge, or an annuity in the nature of a rent- 
 charge, being assignable or " vendible" at common law, 
 can, like a chattel interest, be sold under o,fi.fa. (b}. 
 
 It seems to be admitted that since the Statute of 
 
 Clause 
 
 restraining 
 
 assignment. 
 
 Estate pur 
 outer vie. 
 
 (s) See the form which the as- 
 signment had evidently taken in 
 Taylor v. Cole, 3 T. R. 292 ; and 
 Appendix, infra, Form No. 34. 
 
 (t) Palmer's case, 4 Rep. 74a ; Cart. 
 155. An inquisition under anelegit, 
 which found a term merely without 
 finding what the term was, would 
 be informal. 
 
 (u) A tenancy from year to year 
 for example. Doe d. Westmoreland 
 v. Smith, 1 Man. & Ry. 137. 
 
 (x) See the effect of judgments 
 upon land, and the questions aris- 
 ing under this statute, discussed 
 infra, pp. 189, 300, 307. 
 
 (y) Doe d. Hughes v. Jones, 9 M. 
 & W. 372. 
 
 (z) In the same way as an equit- 
 able estate. 2 Cru. Dig. 53, s. 68. 
 
 (a) Doe d. Mitchinson v. Carter, 8 
 T. R. 57. 
 
 (b) York v. Twine, Cro. Jac. 78 ; 
 Com. Dig. Execution, C. 4.
 
 THE WRIT OF FIERI FACIAS. 131 
 
 Frauds (c), the sheriff may sell an estate pur outer vie under Chap. IV. 
 a/./ff. (rf), though he cannot an estate of pure freehold 8ec ' l (iii) - 
 as for life. 
 
 The writ of fieri facias does not lie for anything which 
 cannot be delivered in execution, nor for an interest in 
 land or rents for which ejectment does not lie. A canonry 
 could not, therefore, be affected or reached by it (e). 
 
 SUB-SECT, (iii). Other Property seizable under a Fi. Fa. 
 Besides goods and chattels, and chattel interests in land, 
 other kinds of property are, by 1 & 2 Yict. c. 110, s. 12, 
 made subject to the writ oi.fi. fa. The usual procedure of 
 sale by the sheriff is necessarily replaced by other modes 
 of disposition. It is, therefore, advisable to set forth the 
 section at length. The section enacts, " That by virtue of l & 2 Viet, 
 any writ of fi. fa. to be sued out of any superior or inferior c ' 110> 8 ' 12- 
 Court, ... or any precept in pursuance thereof, the sheriff 
 or other officer having the execution thereof may, and 
 shall, seize and take any money or bank notes (/) . . . and Money, bank 
 any cheques, bills of exchange, promissory notes, bonds, cheques &c 
 specialties, or other securities for money, belonging to the 
 person against whose effects such writ of fi,. fa. shall be 
 sued out, and may and shall pay or deliver to the party 
 suing out such execution any money or bank notes which 
 shall be so seized, or a sufficient part thereof ; and may 
 and shall hold any such cheques," &c., " as a security or 
 securities for the amount by such writ of fi. fa. directed to 
 be levied, or so much thereof as shall not have been other- 
 wise levied and raised ; and may sue in the name of such 
 sheriff or other officer for the recovery of the sum or sums 
 secured thereby, if and when the time of payment thereof 
 shall have arrived, and that the payment to such sheriff or 
 
 (c} 29 Car. 2, c. 3, s. 12. (/) As to money of the debtor 
 
 (d) Note to Johnson v. Streete, in sheriff's hands, see Armislead v. 
 Comb. 291 ; Bac. Abr. tit. Execu- Philpot, 1 Doug. 231. A strange 
 tion. Of the Fieri Facias. reason is given for bank notes not 
 
 (e) Doe d. Butcher v. Musgrave, 1 being seizable, Francis v. Nash, Lee, 
 Man. & Gr. 625. Ca. temp. Hard. 53. 
 
 K2
 
 132 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. other officer by the party liable on any such cheque, bill of 
 - exchange," &c., " with or without suit, or the recovery and 
 levying execution against the party so liable, shall dis- 
 charge him to the extent of such payment, or of such 
 recovery, and levy in execution, as the case may be, from 
 his liability on any such cheque," &c. ; " and such sheriff or 
 other officer may, and shall, pay over to the party suing 
 out such writ, the money so to be recovered, or such part 
 thereof as shall be sufficient to discharge the amount by 
 such writ directed to be levied. And if, after satisfaction 
 of the amount so to be levied, together with sheriff's 
 poundage and expenses, any surplus shall remain in the 
 hands of such sheriff or other officer, the same shall be paid 
 to the party against whom such writ shall be so issued : 
 provided, that no such sheriff or other officer shall be 
 bound to sue any party liable upon any such cheque," &c., 
 " unless the party suing out such execution shall enter into 
 a bond with two sufficient sureties for indemnifying him 
 from all costs and expenses to be incurred in the prosecu- 
 tion of such action, or to which he may become liable in 
 consequence thereof, the expense of such bond to be de- 
 ducted out of any money to be recovered in such action." 
 Effect of Where money, bank notes, &c. are seized under the 
 
 property hi** 16 WI ^ ^6 e ^ ect ^ s not to thereupon vest them in the person 
 notes, &c. issuing execution any more than is the case where goods 
 are seized. These particular proceeds of the execution are 
 in the same position as the proceeds of goods seized and 
 sold, and do not become the property of the creditor until 
 appropriated to him by the sheriff (g). 
 
 Cheques, &c. It will be observed that the section requires the sheriff 
 
 security ^o hold cheques, &c., as security for the amount directed to 
 
 be levied. No further or other authority is given to any 
 
 person than that stated expressly in the section itself. 
 
 (g) Collmgridgev.Paxton,1\Ij.3. tion as proceeds of goods sold as 
 C. P. 39; 11 C. B. 683. Bank to subject them to the provisions 
 notes do not, it is submitted, ap- of sub-sect. (2), sect. 46, Bank- 
 pear to be so far in the same posi- ruptcy Act, 1883.
 
 THE WRIT OF FIERI FACIAS. 133 
 
 And it is submitted to be questionable what, if any, other Chap. IV. 
 steps can be taken to realize or put in force the security Sec - 1 ("*) 
 given by it. This is of importance in the case of " special- Specialties, or 
 ties or other securities for money "(h). It seems to be a Jfofof 1111 " 
 somewhat futile enactment, if the person pursuing the money, 
 judgment gets by his execution no means of realization 
 nor anything more than a mere lien. It appears to have 
 been the view of Wilde, C. J., that, independently of this 
 statute altogether, the sheriff's duty is to sell cheques and 
 promissory notes ; it is said they are chattels, and therefore 
 saleable (i). 
 
 In a recent case an opinion has been expressed, that the 
 section applies only to bills and notes, and securities cjusdem 
 generis as those expressly therein mentioned (). 
 
 A policy of assurance on the debtor's life, or a policy Policies of 
 which he holds on the life of any other person, may, how- 
 ever, be a security for money ; it depends upon the form of 
 the policy and the actual contract between the insured and 
 the insurers (/). Where it is such a security, the sheriff 
 may seize and hold it under this section (ni). 
 
 If the debtor holds a mere assignment of a debt or other Assignment 
 legal chose in action, it is submitted that the sheriff cannot 
 seize it. Such an assignment is, it is true, by virtue of sub- 
 sect. 6 of sect. 25 of the Judicature Act, 1873, effectual so 
 as under certain conditions to enable the assignee to sue, 
 but the chose in action is not a security for money. The 
 sum recoverable by the debtor under such an instrument 
 is recoverable by his judgment creditor by means of 
 
 (A) But see, as to these, infra, strict definition. See.Zte.rv. Tillers, 
 
 Chapter on "Equitable Execu- 8 Price, 587. 
 tion" ; 1 & 2 Viet. c. 110, s. 13. (k) In re Rollason, Hake's claim, 
 
 (i) Mutton v. Young, 4 C. B. 34 Ch. D. 495. 
 
 373 ; authorities quoted in Bullock (I) Law v. The London Indisput- 
 
 v. Dobbs, 2 B. & Aid. 258, for able Life Policy Co., 1 K. & J. 223. 
 what is included in term bona et (m) StoJcoe v. Cowan, 30 L. J. 
 
 catalla. But cheques and promis- Ch. 882. See, however, Alleyne v. 
 
 sory notes are negotiable, and may, Darcy, 5 IT. Ch. B.. 56 ; In re Sar- 
 
 perhaps, not be included in the genfs Policy, 1 L. R. IT. 66.
 
 134 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I, garnishee proceedings, which we shall subsequently dis- 
 cuss (n). 
 
 Debtor's The mandate of the writ only extends to the property of 
 
 fk S ^ ne judgment debtor. The sheriff can therefore make a 
 
 valid sale of such goods only as belong to him. On prin- 
 ciple, if the sheriff attempt to sell the goods of some other 
 person, the would-be purchaser takes no property in them, 
 for a sale by the sheriff is not a sale in market overt. 
 
 Where debtor Where, however, the debtor is in possession of goods as 
 bailee, his interest in them may, in some cases, be disposed 
 of, wherever, that is to say, it is a saleable interest (0), 
 though not of course where a sale would determine the 
 bailment altogether, and give the owner of the goods a 
 
 Lien. right to possession (p). "A lien is a personal right which 
 
 cannot be parted with, and continues so long only as the 
 possessor holds the goods " (<?) ; and, therefore, where the 
 debtor has a mere lien over goods, his interest in them is 
 
 Hiring agree- manifestly not saleable (r) . Where goods are let to the 
 debtor under a hiring agreement, and he is in possession, 
 his interest in the goods can be sold (s) ; and if the owner 
 of the goods do not give notice to the sheriff of the nature 
 of the debtor's interest in them, such owner cannot ap- 
 parently be heard to allege, as against the sheriff, that the 
 goods did not belong to the debtor (s). Another way of 
 regarding the matter of alleged damage to the reversion 
 has been to hold that since the sale by the sheriff is not in 
 market overt, no damage to the owner of the reversion can 
 arise by selling the interest of the bailee (t] . Generally, 
 
 (n) Vide infra, p. 349. reason why a lien should not be 
 
 (o) See, for an example, Bradley considered a security for money 
 
 v. Copley, 14 L. J. C. P. 222. under sect. 12 of 1 & 2 Viet. c. 110. 
 
 (p) As in Cooper v. Willomatt, 14 (*) Dean \. Whittaker, 1 C. & P. 
 
 L. J. C. P. 219. 347; Duffi.ll v. Spottiswoode, 3 C. & 
 
 (q) Legg v. Evans, 6 M. & "W. P. 435. And see Duck v. Braddytt, 
 
 36. 13 Price, 455. 
 
 (r) But notwithstanding the (t) Tancred v. Allgood, 4 H. & N". 
 
 dictum of North, J., in In re 438 ; Lancashire Waggon Co. v. 
 
 Rollason, Raise's claim, 34 Ch. D. p. Fitzhugh, 6 H. & N. 502. 
 4?6, there hardly appears sufficient
 
 THE WRIT OF FIERI FACIAS. 135 
 
 it would appear that where it is a term of the contract chap. IV. 
 under which the debtor has possession of the goods, that 8ec - * ("*) 
 they ean be sold by him, (for example, in the case of pawn- 
 broker's pledges,) the sheriff can sell, and can retain the 
 goods in his hands until the right to sell arises (u). 
 
 When the debtor's goods are in the possession of other Debtor bailor, 
 persons who are with respect to them bailees, the debtor's 
 interest cannot be seized (x) , nor, therefore, can it be 
 sold (y). The judgment creditor, has, however, the right 
 to satisfy the person claiming a lien, and then take the 
 goods in execution (z). Where the sheriff sells the goods 
 notwithstanding the lien over them, he will be liable to the 
 bailee for the whole amount of the lien (a). 
 
 Where the judgment debtor is a member of a partner- Debtor's inte- 
 ship, the property of the firm is liable to be seized, and his rest P art * 
 interest in it sold. The duty of the sheriff is most fully perty. 
 discussed in Lord Justice Lindley's book on the Law of 
 Partnership (b). The remedy given by ihefi.fa. to a judg- 
 ment creditor, is, in this case, most unsatisfactory. It would 
 appear to be the wiser course for him to resort to the equit- 
 able method of execution, by obtaining the appointment of 
 a receiver (c). 
 
 (w) This applies specially to the Kennay, 9 Q. B. 592. 
 case of pawnbroker's pledges. In (y) Ex parte Hall, Be Townsend, 
 
 re Rollason, Hake's claim, 34 Ch. D. 14 Ch. D. 132. 
 495. The sheriff may retain, as (:) See Duncan v. Garratt, 1 C. & 
 
 proceeds of the execution, sums P. 169. " Goods pawned may be 
 
 paid by pledgers to him to redeem taken on an execution against the 
 
 their pledges. Squire v. Httetson, pawner on satisfaction of the 
 
 1 Q. B. 308. In this case, the pledge." Rogers v. Kennay, 9 Q. B. 
 
 proceeds of the execution, not 592 ; Scott v. Scholey, 8 East, p. 476. 
 being the result of a sale of goods, (a) Proctor v. Nicholson, 7 C. & P. 
 
 apparently belong in any event to 67, where the lien seems to have 
 
 the execution creditor, and should been principally for brandy and 
 
 not be retained in the sheriff's water supplied, 
 hands for fourteen days. See sect. (*) Ed. 1878, pp. 687 et seq. 
 
 48, Bank. Act, 1883. (c) See further as to this, Lind. 
 
 (x) Bac. Abr. tit. Execution (C) Part. 692 et seq. ; and Helmore T. 
 
 4, of fi. fa. and lev. fa. Balls v. Smith (1), 35 Ch. D. 436. 
 Thick, 9 Jur. 304 ; Rogers v.
 
 136 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. We will close our remarks upon the nature of the pro- 
 
 Nothing but P er ty which can be taken under this writ, with the observa- 
 
 iegal interests tion that nothing but legal property (d) can be seized by 
 
 the sheriff (e). Execution against equitable interests, 
 
 whether in terms of years or in goods and chattels, must 
 
 be sought in another manner, of which we shall treat fully 
 
 later. 
 
 Proceeds of 
 the execution. 
 
 Proceeds in 
 
 sheriff's 
 
 hands. 
 
 Eight of 
 action. 
 
 SUB-SECT, (iv). The Proceeds of the Execution. 
 With reference to the proceeds of the execution, the 
 material direction contained in the writ is : " and that you 
 have that money and interest before us in our said Court 
 immediately after the execution hereof to be paid to the 
 said A. B. in pursuance of the said judgment." In 
 practice this direction in the writ is disregarded ; that is, 
 the sheriff never does bring the money and interest into 
 Court, but, on the other hand, pays it direct to the judg- 
 ment creditor (/). In fact, so soon as the money is 
 realized and in the hands of the sheriff, it becomes a debt 
 for which he can be sued (g] . After the sheriff has made 
 his return, which is directed by the next clause in the writ, 
 and has returned that he has the proceeds of execution in 
 his hands, he is thereupon technically in contempt (for the 
 reason, apparently, that he has neither paid the money 
 into Court nor to the plaintiff) ; the creditor, therefore, 
 can by motion against him compel compliance with the 
 writ (fi). In an action brought against the sheriff for 
 
 (d) As to a term of years, Scott 
 v. Scholey, 8 East, 467, is a leading 
 authority. 
 
 (e) Scarlett \. Hanson, 12 Q. B. D. 
 213, where it was decided that the 
 sheriff may withdraw in such a 
 case without interpleading if he 
 chooses to do so. 
 
 (/) If the sheriff pays the exe- 
 cution creditor with money of his 
 own, he may subsequently levy. 
 Gilb. Ex. 17. 
 
 (#-) Speake v. Richards, Hob. 206. 
 
 A case of lev. fa., but the same 
 somewhat strange reasoning will 
 apply. PerJcinson v. Gilford, Cro. 
 Ca. 539, where debt was held sus- 
 tainable against the sheriff's exe- 
 cutors. Morland v. Pellatt, 8 B. & 
 0. 722. The distinction was for- 
 merly drawn between debt and 
 assumpsit : debt was founded on 
 the return, assumpsit lay even 
 before and without return. Wats. 
 Sher. 295. 
 
 (h] Slockdale v. Hansard, 1 1 A. &
 
 THE WRIT OF FIERI FACIAS. 137 
 
 money so received by him, lie is at liberty to avail himself chap. iv. 
 of any defence without being absolutely concluded by his Sec - * fo)- 
 own return (i). 
 
 SUB-SECT, (v). The Returns to the Writ. 
 
 The next clause of the writ is : " And in what manner Direction to 
 you shall have executed this our writ make appear to us in retum ^e 
 our said Court immediately after the execution thereof. 
 And have there then this writ." The general duties of 
 the sheriff, with respect to the return of writs, have already 
 been considered. And we have seen that the law on this 
 point is of comparatively small importance, because all 
 writs of execution are now made returnable immediately 
 after the execution thereof (&). 
 
 When an execution has been completed, and the money fieri feel. 
 due to the execution creditor levied by the sheriff, he 
 should return, when required so to do, fieri fed (/). 
 This return is incomplete unless it states either that the 
 money is in Court, in obedience to the writ, or that the 
 money is ready to be paid over on a day and at a place 
 named. This return can, of course, be made only in the 
 case where the whole debt has been levied and is available 
 for the creditor. If part of the money only is so avail- Return where 
 able, the reason should appear upon the return. This is 
 merely an instance of the general rule that the return 
 must answer the whole mandate of the writ. For example, 
 where there have been insufficient goods of the execution 
 debtor to allow of the levy of more than a part of the 
 
 E. 253. In this case the return The execution creditor may there- 
 was that the money was "before upon proceed by summons (for- 
 the Queen at Westminster, to be merly rule of court) or action of 
 rendered to the plaintiff as in the debt or assumpsit. Tidd's Pr. 
 writ commanded." 1019. The sheriflp having acknow- 
 
 () Vide instances, Tidd's Prac- ledged the debt on record, it is 
 tice, at p. 1019, on or before "tantamount to judgment by con- 
 return <A fieri fed. fession, and therefore the judgmen 
 
 (A) Vide supra, p. 57. may be executed against himself!" 
 
 (/) See form of this return, Gilb. Ex. 17. 
 Appendix, infra, Form No. 35.
 
 138 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Nulla bona. 
 
 Return when 
 two writs in 
 sheriff's 
 hands. 
 
 amount due, the return is fieri fed as to that part, nulla 
 bona as to the residue (m). Again, where the sum levied 
 has been reduced by payments which the sheriff can 
 lawfully, or is by law compellable to make, as, for example, 
 rent, rates and taxes, the fact and amount of the reduction 
 must appear on the return (n). 
 
 If the judgment debtor has no goods in the county 
 into which the writ is directed, or, if the view that we 
 maintain is correct (o), should the sheriff, after due inquiry, 
 find none, nor is informed of any, he should return 
 nulla bona (p). He can make this return where the 
 debtor has an equitable interest in goods only (<?), and 
 also where the proceeds were exhausted in payment of 
 rent and prior charges (r). The sheriff is not entitled to 
 make this return where he has levied part, and there 
 remain goods in his hands unsold even as to the part 
 which is so unsold (s) . 
 
 Where more than one writ has been delivered into the 
 sheriff's hands for execution at the same time, he must 
 return to both writs what he has done under them. It is 
 not sufficient for him merely to return that he has levied 
 under the writ to which the return is made, and another 
 writ of fi. fa. (t) . But it is sufficient if he specifies under 
 what prior writs he has levied, their dates, and that, 
 " according to the priority thereof," he has seized (u). 
 
 SUB-SECT, (vi). Hoic the Rights of Landlords are protected. 
 
 The right of the execution creditor to realize the sum 
 
 due to him is considerably modified by the prior claim of 
 
 (m) Wats. Sher. p. 291. 
 
 (n) Vide infra, p. 142. 
 
 (o) Viz., that the sheriff is in 
 truth liable only for negligence in 
 the performance of his office. Vide 
 supra, p. 79 et seq. 
 
 (p) Wats. Sher. p. 290. See form 
 in Appendix, infra, p. 408, No. 36. 
 And, for form of return (A fieri fed 
 as to part, nulla, bona as to residue, 
 No. 37. 
 
 (q] Scarlett v. Hanson, 12 Q.B.D. 
 213. 
 
 (;) Wintle v. Freeman, 11 A. & E. 
 539 ; Shattock v. Garden, 6 Ex. 725. 
 
 (s) Slade v. Hawley, 13 M. & W. 
 757. 
 
 (f) Wintle v. Lord Ghetwynd, 1 
 Dowl. 554. 
 
 (u) Chambers v. Coleman, 9 Dowl. 
 588.
 
 THE WRIT OF FIERI FACIAS. 139 
 
 the landlord for rent due in respect of the premises where chap. iv. 
 the goods are. It is advisable that we should ascertain, 8ec - 1 ( yi )- 
 with certainty, the position of the landlord of premises, 
 and the effect thereof upon execution. 
 
 When goods are seized under a fi. fa. they cannot be Goods in 
 distrained upon for rent due to the landlord. They are S^tSS 
 in the custody of the law, and, therefore, exempt or privi- distress, 
 leged from distress (v). And supposing a distress to be 
 already levied, but no sale thereunder made, when the 
 fi. fa. is placed in the sheriff's hands he can, apparently, 
 go in and stop the proceedings under the distress (x). 
 
 We have seen that, in the case of ordinary goods, the 
 sheriff, or the purchaser from him, is bound to remove 
 them within a reasonable time (y) ; but in the one case of Growing 
 growing crops, on which the right to distrain is given by 
 statute (z), they, by their nature, remain on the land till 
 ripe, and, once having been sold under a fi. fa., until 
 comparatively recent times, continued privileged from 
 distress, although not actually in the hands of the pur- 
 chaser (a). Now, however, by 14 & 15 Yict. c. 25, s. 2, so 14 & 15 Viet, 
 long as such growing crops shall remain on the farm or ' 
 lands, they are liable, in default of sufficient distress of the 
 goods and chattels of the tenant, to the rent which may 
 accrue and become due after any seizure and sale under 
 which they have been sold, and to the remedies by distress 
 for recovery of such rent. The sheriff can, therefore, now 
 only sell growing crops subject to the accruing rent (b). 
 
 (v) Co. Lit. 47 a ; Eaton v. such a case, till the rent has been 
 
 Southby, Willes, 131 ; Wharton \. paid. It must be remembered, 
 
 Naylor, 12 Q. B. 673 ; 6 D. & L. however, that a distress is, in strict- 
 
 136. ness, a mere pledge. 
 
 (x) See Harrison v. Harry, 1 (y} Supra, p. 120. 
 
 Price, 690, where the point, it is (z) 11 Geo. II., c. 19, ss. 8, 9. 
 
 true, was not taken. Perhaps it (a) Peacock v. Purvis, 2 Brod. & 
 
 follows, from the dictum of B. 362 ; Wright v. Dewes, 1 A. & 
 
 Vaughan, B., in Hay thorn v. E. 641 ; Wharton v. Nat/lor, 12 
 
 Bush, 2 Cr. & M. 689, that a sheriff Q. B. 673. 
 
 ought not in strictness to seize, in (V) See 56 Geo. III., c. 50, s. 6.
 
 140 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Landlord's 
 right to rent 
 for one year. 
 
 Position of 
 the sheriff on 
 removal of 
 
 Although the remedy of distress is taken away by the 
 fact of execution, the goods cannot be removed until the 
 person, at whose suit the execution has been sued out, shall 
 pay to the landlord (c) the sum due for rent, provided that 
 the arrears do not amount to more than one year's rent ; 
 and the sheriff is empowered and required to levy and 
 pay to the plaintiff as well the money so paid for rent as 
 the execution money (d}. If, notwithstanding this enact- 
 ment, the goods are removed (e), the sheriff becomes per- 
 sonally responsible for the rent, and can be sued for it by 
 the landlord, as can also his representatives after his 
 death (/). 
 
 In the case where the goods have been sold, and the 
 proceeds are in the sheriff's hands, summary process 
 against him may be resorted to (g) . In order to sustain his 
 claim, the landlord must, of course, show that he demanded 
 the rent from the sheriff, or given him notice that it was 
 due (^), or that the sheriff had full notice and knew that 
 it was due ('). When once he has notice, the law casts on 
 him the responsibility of ascertaining the validity of the 
 claim (A 1 ). It is said that the removal is the act of the 
 sheriff, and that the execution creditor, having nothing 
 to do therewith, is not liable to an action (/) ; but it 
 
 (c) The immediate, and not the 
 superior landlord. Bennett' 1 s case, 
 2 Stra. 787. The legal owner of 
 the reversion, e. g. , a trustee of a 
 satisfied term, may be landlord. 
 Colyer v. Speer, 4 Moore, 473. 
 
 (d) 8 Anne, c. 14, s. 1. In the 
 case of tenancies less than yearly 
 tenancies, the landlord has no 
 claim over the goods for more than 
 arrears accruing during four such 
 terms or times of payment. 7 & 8 
 Viet. c. 96, s. 67. 
 
 (e) Smith v. Russell, 3 Taunt. 400. 
 (/) Darling v. Hill, Ca. temp. 
 
 Hard. 255 ; Palgrave v. Windham, 
 1 Stra. 212 ; Riseley v. Ryle, 11 M. 
 
 & W. 16 ; Bible v. Hmsey, Ir. E. 
 2 C. IA 308. 
 
 (g) Arnitt v. Garnett, 3 B. & 
 Aid. 440. 
 
 (h) Darling v. Hill, Ca. temp. 
 Hard. 255 ; Waring v. Dewberry, 
 1 Stra. 97 ; Smith v. Russell, 3 
 Taunt. 400 ; Gawler v. Chaplin, 2 
 Ex. 503. 
 
 (i) Andrews v. Dixon, 3 B. & 
 Aid. 645. 
 
 (k) Augustien v. Challis, 1 Exch. 
 279; Hall v. Crawky, 11 W. E. 
 344. 
 
 (/) Cocker v. Musgrove, 9 Q. B. 
 p. 230 ; Woodfall, Landl. & Ten. 
 492, 13th ed.
 
 THE WRIT OF FIERI FACIAS. 141 
 
 depends merely on the authority given by him to the Chap Iv 
 sheriff. Sec. 1 (vi). 
 
 The rent which must he paid must he due, although it The rent 
 may, under the terms of the tenancy, be payable in 
 advance (m) . An existing tenancy must, however, be 
 established, so that no action can be sustained against the 
 sheriff where the tenancy has expired when the execution 
 was put in (), notwithstanding that the six months within 
 which, by the Statute of Anne (0), the landlord has the 
 right to distrain, have not expired (p). The rent which 
 the sheriff or the execution creditor is bound to provide, is 
 only such rent as has accrued due at the time of the 
 sheriff's entering into possession, and not that which 
 accrues during the continuance of such possession (q). 
 The statute has no application where the execution creditor 
 is himself the landlord ; and therefore the sheriff, in such 
 case, cannot retain and pay over the one year's rent to 
 him where the remaining proceeds of the execution belong 
 to the trustee in bankruptcy of the tenant (r) . 
 
 Where the sheriff seizes and removes goods, the land- Goods belong- 
 lord can sustain an action for rent against him, irrespective 
 of whose the goods were (s). And yet, if the sheriff has debtor's 
 seized goods wrongfully, he cannot justify as against the p 
 owner a payment for rent out of the proceeds of their sale ; 
 e.g., where, on execution against goods of A., the tenant, 
 the sheriff seized the goods of B. on the tenant's premises, 
 and on an interpleader order being made for the sale of 
 the goods the sheriff paid one year's rent to the landlord, 
 in an action against him by B., it was held he could not 
 justify such payment (t). 
 
 (m) Harrison v. Barry, 7 Price, 245; Reynolds v. Barf ord, 7 Man. & 
 
 390 ; Yates v. Ratlcdge, 5 H. & N. Gr. 449, except in the case of 
 
 249. growing crops, vide supra, p. 139. 
 
 () Hodgson v. Gascoigne, 5 B. & (r) Taylor v. Lanyon, 6 Bing. 536. 
 
 Aid. 88. (s) lorsterv. Cookson, 1 Q. B. 419. 
 
 (o) 8 Anne, c. 14, s. 1. (t) White v. Bimtead, 13 C. B. 
 
 (p) Cox v. Leigh, L. R. 9 Q. B. 304 ; Lee v. Lopes, 15 East, 230. 
 
 333. See Beard v. Knight, 8 El. & Bl. 
 
 (q) Hoskins v. Knight, 1 M. & S. 865.
 
 142 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Duty of the 
 sheriff since 
 the statute 
 14 Anne. 
 
 Rates for 
 which there is 
 power to 
 distrain. 
 
 Taxes. 
 
 It is submitted that the sheriff's duty (subject to the 
 question above referred to, of how far he is entitled to do 
 so where the distress is actually levied) is to seize the 
 goods, whether he has notice of a claim for rent or not. 
 This appears to follow from the words of the statute, 
 which enacts that goods shall not be removed before the 
 rent is paid, though it is clear that the sheriff is not bound 
 to proceed to a sale of the goods until the rent, of which 
 he has notice, has been paid by the person putting him in 
 motion, which means that the sheriff is not to be required 
 to find the money himself (u) . If the sheriff proceeds to 
 sale of the goods, he is not entitled to poundage on the 
 amount of the rent (x). 
 
 The usual practice is, doubtless, for the sheriff to sell 
 and pay out of the proceeds the sum due for rent. This 
 practice is, from what has been above stated, clearly not 
 a safe course for the sheriff to take ; for, if the goods he 
 sells are the property of a third person, he will be liable 
 to that person for their value (y) . The reason for this 
 apparent hardship on the sheriff is, that he does not act in 
 conformity with the statute, and require the execution 
 creditor to pay the rent before he proceeds (z). 
 
 There are special Acts giving power to gas and other 
 companies, having powers of rating, to distrain for the 
 recovery of their rates. It is clear that without some such 
 provision as that of the Statute of Anne, the distress 
 cannot be put in upon goods already in custodia legis ; the 
 old principle applies. 
 
 By the Taxes Management Act, 1880 (a), s. 88 (1), 
 " No goods or chattels can be taken in execution, unless 
 
 (u) Cocker v. Musgrove, 9 Q. B. 
 235 ; Culvert v. Jolife, 2 B. & Ad. 
 418. 
 
 (x) Gore v. Goston, 1 Sfcra. 643. 
 
 (y) It is clearly unsafe if the 
 landlord have not demanded the 
 rent or given notice of its being 
 due. Gawler v. Chaplin, 2 Ex. 503. 
 
 (z) This strictly legal course is 
 recommended in Woodf. Landl. & 
 Ten. 494. Vide infra, Appendix, 
 Forms 38, 39, for forms of notice 
 by and to landlord and sheriff 
 respectively. 
 
 (a) 43 & 44 Viet. c. 19.
 
 THE WRIT OF FIERI FACIAS. 143 
 
 the party issuing such execution shall, before the sale or Chap. IV. 
 removal of such goods or chattels, pay to the collector Sec - * ( vi )- 
 all arrears of duties or the land tax due at the time of 
 seizing the said goods or chattels, or which shall be pay- 
 able for the year in which such seizure shall be made, 
 provided such duties and land tax shall not be claimed for 
 more than one year." 
 
 And, by sub-sect. (2), the case of a claim being made for 
 the taxes for more than a year is provided for, and also, in 
 case of refusal to pay the said duties and land tax, the 
 collector is authorized and required to distrain such goods 
 and chattels notwithstanding such seizure, and to proceed 
 to the sale thereof according to the Act. 
 
 The statute extends to land tax, inhabited house duty, 
 and to property and income taxes. 
 
 SECT. 2. THE WRITS IN AID OF THE WRIT OF FIERI 
 FACIAS. 
 
 O. XLIII. r. 2, is as follows : " Where it appears upon o. XLIII. 
 the return of any writ of fieri facias that the sheriff or r ' 
 other officer has by virtue of such writ seized, but not expona*. 
 sold, any goods of the person directed to pay a sum of 
 money or costs, the person to whom such sum of money 
 or costs is payable shall, immediately after such writ with 
 such return shall have been filed as of record, be at liberty 
 to sue out a writ of venditioni cxponas." 
 
 O. XLIII. r. 5, is as follows : " Writs of venditioni ex- O. XLHI. 
 
 r 5 
 
 ponas, distringas nuper vicecomitem, fieri facias de bonis ecck- ' ' . 
 siasticis, sequestrari facias de bonis ecclesiasticis, and all other of /./a. or 
 writs in aid of a writ of fi. fa. or of elegit, may be issued ek s %t - 
 and executed in the same cases and in the same manner 
 as heretofore." 
 
 First, with regard to the writ of venditioni exponas. We Writ of vend. 
 have seen that, under a /./., it is the sheriff's duty to sell exp ' 
 at a fair price, and a breach of such duty may render him
 
 144 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Return 
 founding 
 vend. exp. 
 
 Summary 
 process not 
 available 
 against sheriff 
 where this 
 writ is. 
 
 Vend. exp. 
 part of the 
 Jieri facias. 
 
 liable to an action (b}. In case, therefore, lie is unable so 
 to sell, he should return that he has the goods, and that 
 they remain in his hands for want of buyers (V) . If, how- 
 ever, the sheriff do not attempt to sell within a reasonable 
 time, he is liable to an action (c) ; indeed, it is said that 
 the vend. exp. is " only to give him alacrity" (d). 
 
 The form of the writ is given in the Appendix, infra (e) . 
 
 The return on which this writ is founded, and the writ 
 itself being available in all cases to an execution creditor, 
 if he neglect to obtain the return from the sheriff, and to 
 issue the writ, he cannot have recourse to the summary 
 process of the Court against the sheriff for neglect of duty 
 in not selling under the fi. fa. (/). The writ of Tend. exp. 
 is, strictly speaking, not a process distinct from the fi. fa., 
 but a part of it, and directs the sheriff to execute the writ 
 in a particular manner (g) . But summary process may be 
 taken on a vend, exp., just as on a fi. fa. or any other writ of 
 execution (A) . It is said that in the return which founds 
 this writ the sheriff should state the value of the goods he 
 has seized, and, having so returned, he is bound to find 
 buyers ('). On the other hand, the sheriff may only 
 return to the vend. exp. that he has seized goods, which 
 remain in his hands for want of buyers, and the Court 
 
 (b} Keightley v. Birch, 3 Camp. 
 521. The sheriff cannot make this 
 return rightly where his brokers 
 have in fact sold, though at an 
 undervalue, and, the property being 
 a term of years, he has refused to 
 complete. Barnard v. Leigh, 1 Stark. 
 43. For form of return, see Ap- 
 pendix, Form No. 40. 
 
 (c) Aireton v. Davis, 9 Bing. 740 ; 
 Bales v. Wingfield, 2 N. & M. 831. 
 
 (d) Jacobs v. Humphrey, 2 Cr. & 
 M. 413, where action was brought 
 after vend. exp. had been issued and 
 disregarded. 2 Saund. 47ee; Jeanes 
 v. Wilkins, 1 Ves. sen. 195. 
 
 (e) Appendix I. Form No. 42. 
 
 (/) Clutterbuck v. Jones, 15 East, 
 78 ; Huston v. Hatfield, 2 B. & Aid. 
 204. 
 
 (g} Hughes v. Sees, 4 M. & W. 
 468. 
 
 (h) See Dod, v. Coleman, 9 Dowl. 
 916. 
 
 (i) Per Holt, C. J., Clerk v. 
 Withers, 6 Mod. p. 293. And see 
 per Lord Mansfield, Cameron v. 
 Reynolds, Cowp. p. 406. Upon a 
 vend. exp. the sheriff "must return 
 the money into Court." E. v. 
 Bird, 2 Show. 87. See Tidd's Pr. 
 1020 ; Barton v. Gill, 1 D. & L. 
 593; Wintle v. Lord Chelwynd, 1 
 Dowl. 554.
 
 THE WRIT OF FIERI FACIAS. 
 
 145 
 
 will not attach him (). On principle, it does not seem 
 right that the sheriff should be charged with the goods, 
 notwithstanding that everything has heen done to obtain 
 the sale of them. 
 
 The remaining writ, which is available in aid or assistance 
 of the fi. fa., is the writ distringas nuper vicecomitem. The 
 form of the writ is given in the Appendix (I) . 
 
 This writ is issuable against a sheriff who has gone out 
 of office after a return that he has seized the goods, which 
 remain in his hands for want of buyers (m) . The writ is 
 directed to the new sheriff to levy on the old one. The 
 latter having vacated office, and being no longer, therefore, 
 an officer of the Court, cannot be got at by summary 
 process. 
 
 The seizure of goods under this writ cannot be followed 
 up by their sale. The remedy being one of distress, the 
 goods seized are held only at common law as a pledge (n). 
 In case the issues taken under this writ are of trifling or 
 insufficient amount, a summons can be taken out to 
 increase them, which is done by an order on the acting 
 sheriff (o). 
 
 Chap. IV. 
 Sec. 2. 
 
 Distringas 
 nuper vice- 
 comitem. 
 
 When this 
 writ avail- 
 able. 
 
 No sale under 
 this writ. 
 
 (&) Leader v. Danvers, 1 Bos. & 
 P. 359. This is for the reason that 
 the plaintiff might set up a pur- 
 chaser of the goods himself. 
 
 (/) Infra, Appendix I. p. 411, 
 Form No. 44. 
 
 (m) 2 Saund. 47cc (2). The same 
 sheriff who begins an execution 
 must end it. There were formerly 
 two kinds of writs of distringas nuper 
 vicecomitem. Holt, C. J., in Clerk v. 
 Withers, 6 Mod. 299. See Tidd's 
 Pr. 1021. 
 
 () Sects. 3 and 4 of 10 Geo. III. 
 c. 50, authorised the sale of the 
 
 issues levied under a distringas for 
 the payment of such of the plain- 
 tiff's costs as the Court might order. 
 See Raban v. Plaistow, 5 Burr. 2727. 
 This enactment was repealed by 
 42 & 43 Viet. c. 59. It may be 
 that, from the terms of sect. 4, 
 sub-sect, (b) of this Act, there is 
 still jurisdiction to order sale of 
 the issues for payment of costs ; but 
 it is at least questionable. 
 
 (o) Philips v. Morgan, 4 B. & 
 Aid. 652. See Appendix for form 
 of summons to increase issues, 
 Form No. 45. 
 
 E.
 
 146 
 
 Book I. 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 SECT. 3. EFFECT OF CERTAIN STATUTES UPON THE EXECU- 
 TION, AND THE DUTIES OF THE SHERIFF UNDER THIS 
 
 WRIT. 
 
 There are three statutes which have an intimate con- 
 nection with execution under this writ. They are (i) the 
 statute 13 Eliz. c. 5, against fraudulent conveyances ; 
 (ii) the Bills of Sale Act, 1878 (with the Amendment Act 
 of 1882) ; and (iii) the Bankruptcy Act, 1883. Special 
 treatises are concerned with the subjects of these Acts, and 
 it is to those works that the reader is referred for details 
 of their enactments. We shall endeavour not to trench 
 upon ground covered by others, except so far as is neces- 
 sary for the due explanation of our subject, which, we 
 trust, will be attained sufficiently for our purpose by short 
 statements of principle. 
 
 veyances. 
 
 SUB-SECT, (i). The Statute 13 Eliz. c. 5. 
 
 statute With reference to the stat. 13 Eliz. c. 5, the Act pro- 
 
 dutent c(m- U ~ vides, that all fraudulent and covinous conveyances, &c., 
 are? as against the person or persons, his or their successors, 
 executors, administrators, and assigns, and every of them, 
 whose actions, suits, debts, accounts, damages, penalties, 
 forfeitures, heriots, mortuaries, and reliefs by such guileful, 
 covinous, or fraudulent devices and practices as aforesaid, 
 are, shall, or might be in anywise disturbed, hindered, 
 delayed, or defrauded, utterly void, frustrate, and of none 
 effect. It may be mentioned that the statute clearly em- 
 braces all manner of conveyance or transfer which can 
 be made of property covered by a writ of fi. fa. It has 
 already been explained that the sheriff, though not the agent 
 or representative of the judgment creditor, is, nevertheless, 
 entirely subject to his direction, and bound to proceed to 
 execute the writ for his advantage. It is, therefore, the 
 sheriff's duty to treat the fraudulent proceedings men- 
 tioned in the Act as void. It has been long recognized
 
 THE WRIT OF FIERI FACIAS. 147 
 
 that he is included within the intent of the Act (p). The Chap. ly. 
 sheriff's duty was thus referred to by Lord Tenterden in Sec " 8 (l) ' 
 Lovick v. Crowder (q) : " Now, if a party be in the possession ciSa in the 
 of goods apparently the property of the debtor, the sheriff Act. 
 who has a fi. fa. to execute is bound to inquire whether 
 the party in possession is so bond fide, and if he finds the 
 possession is held under a fraudulent bill of sale, he is 
 bound to treat it as null and void, and levy under the 
 writ"(r). 
 
 The sheriff, being thus in the position of the creditor Sheriff's 
 who sets him in motion, can show, in any action brought 
 against him for proceeding to enforce the writ, that a disregarded 
 transaction which he has disregarded is fraudulent. He 
 must, however, depend in this case upon both the writ and 
 the judgment, that is to say, he must prove his autho- 
 rity (s). The sheriff is, in fact, for this purpose, in the 
 same position as the execution creditor, and cannot, there- 
 fore, sufficiently prove his authority by the production of 
 the writ only. 
 
 The sheriff being, to this extent, in the position of the Sheriff in 
 execution creditor, and being compellable to prove the execution 
 judgment, the bona fides thereof, that is, whether it is void cre di tor - 
 or not under the statute, can be entered into. 
 
 In an action against the sheriff for enforcing the exe- 
 cution wrongfully, and where the authorities are fully 
 referred to, it was clearly decided that, although he was 
 not a party to the fraudulent judgment and execution on 
 
 (p) For an early authority, see (s) Whiter. Morris, 11 C. B. 1015, 
 Turvilv. Tipper, Latch, 222; Paget p. 1029. Jervis, C.J., in that case, 
 T. Perchard, 1 Esp. 205; Imray \. says: " The writ merely authorizes 
 Magnay, 11 M. & W. p. 275. and directs the sheriff to do a certain 
 (q) 8 B. & Cr. 132. act, and his indorsement or return 
 (r) The case was, where sheriff's thereon is a mere statement that 
 officers going in found in posses- he has done as he was directed, 
 eion officers of the former sheriff, There is no statement that a judg- 
 who had held over by collusive ment exists, but only that some- 
 arrangement. See West v. Skip, 1 body says that a judgment has 
 Ves. sen. 456. been obtained." May on Fraudu- 
 lent Conveyances, 2nd ed. p. 173. 
 
 L2
 
 148 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. which the question arose, evidence of the fraud could be 
 given (s). Again, in an action by the execution creditor 
 against the sheriff for not enforcing the execution, he can 
 show in defence that the creditor's judgment and execution 
 were fraudulent under the statute (t). 
 
 Sheriff's If it be once established that the 13 Eliz. c. 5 is as 
 
 person issuing available to the sheriff as to the execution creditor him- 
 execuhon. ge j^ -^ a pp ears t o follow that it is the sheriff's duty to dis- 
 cover a fraud committed under that Act, or be liable for 
 the consequences of his not so doing (it). This would 
 render him liable to an action at the suit of any creditor 
 who had issued a writ of fi. fa. for execution, if at any 
 time it could be shown that a fraud had been committed, 
 and that the goods were in the possession of the assignees 
 from the debtor when the writ was placed in the sheriff's 
 hands. It is submitted that the true relationship between 
 the sheriff and the creditor, which was pointed out in the 
 preceding Chapter, renders the former liable only for negli- 
 gence, and that the doubt expressed in Eemmctt v. Law- 
 rence is unfounded. The sheriff may, in all cases of sus- 
 pected or alleged fraud, interplead or apply for an indem- 
 nity, and the Court acts on the principle that where it is 
 possible it will force one of the two conflicting parties to 
 indemnify him (x). Where, however, no such indemnity 
 is obtained, the sheriff stands the risk of loss, on the lines 
 of liability which we have attempted to explain. 
 
 (s) Imray v. Mag nay, 11 M. & v. Young, 5 B. & C. 660. The pro - 
 
 "W. 267. The judgment of Mr. position that a sheriff is bound to 
 
 Baron Parke is particularly clear. execute a writ of execution accord - 
 
 This case was followed in Chr'uto- ing to the exigency thereof (Wats. 
 
 pherson v. Burton, 3 Ex. 160. Some Sher. 67) is not therefore universally 
 
 considerable doubt is thrown on the true. 
 
 justice of the decision by Campbell, (u) This result is the reason for 
 
 C. J., and Erie, J. (who was coun- the doubt thrown on Imray v. 
 
 sel in Imray v. Magnay], in Rem- Magnay, 11 M. & W. 267, by Bem- 
 
 mett v. Lawrence, 15 Q. B. 1004. mett v. Lawrence, 15 Q. B. 1004. 
 
 (t) Lovick v. Crowder, 8 B. & C. (x) May, Fraud. Conv. pp. 154 
 
 132 ; Shattock v. Garden, 6 Ex. 725. 158. 
 See, however, the doubt in Wormoll
 
 THE WRIT OF FIERI FACIAS. 149 
 
 Chap. IV. 
 
 SUB-SECT, (ii). The Bills of Sale Act, 1878 (y] ; The *' ' (U) ' 
 Bills of Sale Act, 1878, Amendment Act, 1882 (z). 
 
 Where the debtor has, before seizure of his goods, made Where debtor 
 a bill of sale thereof, the liability and position of the jjjj S^e* 
 sheriff are analogous to what they are in a ease within the 
 13 Eliz. c. 5, just discussed. The general plan of the Bills of Sale 
 Bills of Sale Act, 1878, is to make certain specified kinds Act> 1878> 
 of transfers of property in goods of no avail against execu- 
 tion creditors and certain other persons, unless such speci- 
 fied transfers are registered under the provisions of the 
 Act. 
 
 Bills of sale are not defined ; but an exhaustive list of Bills of sale 
 what the expression includes is given in sect. 4 of the Act. not defined - 
 It need not be stated that the list does not comprise every 
 conceivable method of assignment of chattels; for ex- 
 ample, in cases where, by the common law, an assignment 
 by word of mouth is sufficient to transfer the property in 
 goods, and such method of assignment is adopted, the 
 Act does not seem to apply at all, as there is nothing to 
 register (). Again, it seems to be the better opinion that 
 the Acts have no operation except where there is a power 
 to seize, either present or future, in the grantee or assignee 
 of the chattels. To investigate fully, however, what goods 
 are seizable under a writ of fi. fa., by reason of non- 
 compliance with the Bills of Sale Act, would necessitate 
 a review of the whole law on the subject. Such questions 
 do not manifestly enter within the scope of our work. 
 The reader is referred to the decided cases, and the nume- 
 rous works on the subject. Before leaving this matter, it 
 deserves notice that where there is a document which is, as 
 against an execution creditor, rendered void by the Act, 
 the position of the sheriff is not left to be matter of judi- 
 
 (y) 41 & 42 Viet. c. 31. (a) See Bramwell, L. J., in Union 
 
 (z) 45 & 46 Viet. c. 43. Bank of London v. Lenanton, 47 L. 
 
 J. Ex. p. 415.
 
 150 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Act of 1878, 
 s.8. 
 
 Effect of 
 sect. 8. 
 
 Validity of 
 judgment 
 cannot be 
 questioned. 
 
 cial decision, as is the case with the 13 Eliz. c. 5, which 
 we have discussed, but is set forth distinctly in the Bills 
 of Sale Act itself. 
 
 Section 8 is as follows : 
 
 " Every bill of sale to which this Act applies shall be 
 duly attested, and shall be registered under this Act within 
 seven days after the making or giving thereof , and shall 
 set forth the consideration for which such bill of sale was 
 given, otherwise such bill of sale, as against all trustees or 
 assignees of the estate of the person whose chattels, or any 
 of them, are comprised in such bill of sale under the law 
 relating to bankruptcy or liquidation, or under any assign- 
 ment for the benefit of the creditors of such person, and 
 also as against all sheriffs' officers and other persons seizing 
 any chattels comprised in such bill of sale, in the execution 
 of any process of any Court authorizing the seizure of the 
 chattels of the person by whom or of whose chattels such 
 bill has been made, and also as against every person on 
 whose behalf such process shall have been issued, shall be 
 deemed fraudulent and void (b) so far as regards the pro- 
 perty in or right to possession of any chattels comprised in 
 such bill of sale, which at or after the time of filing the 
 petition for bankruptcy or liquidation, or of the execution 
 of such assignment, or of executing such process (as the 
 case may be), and after the expiration of such seven days 
 are in the possession, or apparent possession, of the person 
 making such bill of sale (or of any person against whom 
 the process has issued under or in the execution of which 
 such bill has been made or given, as the case may be)." 
 
 It thus appears that, by the terms of the section, an un- 
 registered bill of sale, as defined by the Act, is of no avail 
 against the sheriff. So far as the sheriff is concerned, no 
 question can, therefore, tinder this statute, be raised by the 
 claimants under the bill of sale as to the validity of the 
 
 (b) The bill of sale is void only the execution creditor. Ex parte 
 to the extent necessary to satisfy Blaiberg, Re Toomer, 23 Ch. D. 254.
 
 THE WRIT OF FIERI FACIAS. 151 
 
 judgment under which the sheriff proceeds. Such persons Chap. ry. 
 cannot claim at all as against the sheriff unless their bill Sec ' 8 ^' 
 of sale complies with the Act. Of course, in case of an 
 informality in the writ, which renders the execution a 
 nullity, no doubt the person opposing the sheriff could 
 raise the point that he was not acting " in the execution of 
 any process of any Court," properly so called ; but in such 
 case the judgment cannot be discussed, the sheriff's justi- 
 fication being the writ under which he acts. 
 
 Again, only those goods and chattels can be seized which Apparent 
 are, under the conditions above mentioned, in the possession, posi 
 or apparent possession, of the person making the bill of 
 sale. " Apparent possession " is a technical term, having, 
 under the Act, a certain precise meaning. 
 
 By sect. 4, " Personal chattels shall be deemed to be in Bills of Sale 
 the apparent possession of the person making or giving a Act. 1878, s. 4. 
 bill of sale so long as they remain, or are in or upon any 
 house, mill, warehouse, building, works, yard, land, or 
 other premises occupied by him, or are used and enjoyed 
 by him in any place whatsoever, notwithstanding that 
 formal possession thereof may have been taken by or given 
 to any other person." 
 
 The Bills of Sale Act, 1878, Amendment Act, 1882, Bills of Sale 
 adopts the definition of bills of sale contained in the former Act> 1882> 
 Act. It enforces the necessity of registration wherever 
 the bill of sale has been made or given as a security for 
 money. A form is further prescribed by the Act, which 
 must essentially be adhered to. Here, again, it would be 
 absurd, within the scope of this work, to attempt a sum- 
 mary of the law on the subject ; but for our purpose the 
 matter is rendered somewhat simpler, because all docu- 
 ments not complying with the provisions of the Act on the 
 subject are rendered absolutely void. There can be no 
 question, therefore, of the bearing of the execution on the 
 document itself ; for if it be once established that the due 
 formalities have not been complied with, no person can 
 have any title under it whatsoever.
 
 152 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 /Book I. It is specially where claims are made by persons under 
 
 Interpleader bills of sale that the relief afforded to the sheriff by the 
 Interpleader Acts (e) is taken advantage of. By means of 
 this method of disposing of questions between claimants 
 and execution creditors, the liability of the sheriff is re- 
 duced to a minimum in all cases where the rules apply. 
 It is not proposed to discuss the subject of interpleader, 
 nor the practice arising thereon. 
 
 Act of bank- 
 ruptcy by 
 seizure and 
 sale ; s. 4, 
 sub-s. (1) (e). 
 
 Execution to 
 be completed 
 before bank- 
 ruptcy; s. 45, 
 sub-s. (1). 
 
 Time when 
 execution is 
 completed ; 
 s. 45, sub-s. 
 (2). 
 
 SUB-SECT, (iii). The Bankruptcy Acf, 1883 (d). 
 
 Under the law of bankruptcy, an execution completed 
 over the effects of a debtor who becomes bankrupt has 
 certain distinct results, both with relation to the status of 
 the execution debtor and to the duty of the sheriff. 
 
 By sect. 4, sub-s. (I) (e), of the Bankruptcy Act, 1883, a 
 debtor commits an act of bankruptcy "If execution issued 
 against him has been levied by seizure and sale of his 
 goods under process in an action in any court, or in any 
 civil proceeding in the High Court." 
 
 By sect. 45 (1), "Where a creditor has issued execution 
 against the goods or lands of a debtor, or has attached 
 any debt due to him, he shall not be entitled to retain the 
 benefit of the execution or attachment against the trustee 
 in bankruptcy of the debtor, unless he has completed the 
 execution or attachment before the date of the receiving 
 order, and before notice of the presentation of any bank- 
 ruptcy petition by or against the debtor, or of the commis- 
 sion of any available act of bankruptcy by the debtor. 
 
 " (2) For the purposes of this Act, an execution against 
 goods is completed by seizure and sale ; an attachment of a 
 debt is completed by receipt of the debt ; and an execution 
 against land is completed by seizure, or, in the case of an 
 equitable interest, by the appointment of a receiver." 
 
 The effect of this last sub-section upon execution against 
 
 (e) Now for the most part com- 
 prised in O. LVII. 
 
 (d) 46 & 47 Viet. c. 52.
 
 THE WRIT 0V FIERI FACIAS. 153 
 
 land will be referred to in the Chapters onElegit and Equit- Chap. iv. 
 able Execution. Sec - 8 ( m )- 
 
 By sect. 46 of the same Act : 
 
 " (1) "Where the goods of a debtor are taken in execution, Duty of 
 and before the sale thereof notice is served on the sheriff 
 
 that a receiving order has been made against the debtor, of receiving 
 the sheriff shall, on request, deliver the goods- to the official 
 receiver or trustee under the order, but the costs of the execu- 
 tion shall be a charge on the goods so delivered, and the 
 official receiver or trustee may sell the goods, or an adequate 
 part thereof, for the purpose of satisfying the charge. 
 
 " (2) Where the goods of a debtor are sold under an exe- Retention of 
 cution in respect of a judgment for a. sum exceeding 20/., execution^ 
 the sheriff shall deduct the costs of the execution from the when judg- 
 proceeds of sale, and retain the balance for fourteen days ; forlorn-teen 
 and if within that time notice is served on him of a bank- da y s - 
 ruptcy petition having been presented against or by the 
 debtor, and the debtor is adjudged bankrupt thereon or on 
 any other petition of which the sheriff has notice, the sheriff 
 shall pay the balance to the trustee in the bankruptcy, who 
 shall be entitled to retain the same as against the execution 
 creditor, but otherwise he shall deal with it as if no notice 
 of the presentation of a bankruptcy petition had been 
 served on him. 
 
 " (3) An execution levied by seizure and sale on the goods Execution 
 of a debtor is not invalid by reason only of its being an 
 
 act of bankruptcy, and a person who purchases the goods that j* an 
 j -^ 1 i v u u v 11 ii act of bank- 
 
 in good faith under a sale by the snerin snail, in all cases, ruptcy. 
 
 acquire a good title to them against the trustee in bank- 
 ruptcy." 
 
 It is only under the writ of fi-fa.> or analogous process 
 of inferior courts, that goods can be seized in execution 
 and sold (e). Therefore, it is alone under that writ that 
 
 (e) Under the term sheriff is in- not mean a bailiff or man in 
 
 eluded, by sect. 168, any officer possession, but does mean the 
 
 charged with the execution of a under- sheriff. Exparte Warren, Re 
 
 writ or other process. This does Holland, 15 Q. B. D. 48.
 
 154 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. hig particular act of bankruptcy can arise. There is, by 
 
 Seizure and the terms of the sub-section, no act of bankruptcy until 
 
 sale necessary. there j^g b een a } ev y ^y seizure and sale. This, doubtless, 
 
 covers the case where the execution has been partially 
 
 satisfied only (/). Where the whole of the goods seized 
 
 remain in the sheriff's hands for want of buyers, there is 
 
 clearly no act of bankruptcy, and he is bound, by sect. 46, 
 
 sub-sect. (1), to hand over the goods to the trustee. With 
 
 the effect of the act of bankruptcy itself we have little to 
 
 do ; the consideration of the subject is a part of the law 
 
 relating to bankruptcy. At the same time, where an act 
 
 of bankruptcy has been committed, it has a direct interest 
 
 for us which should be borne in mind. 
 
 Proceeds do J$y the terms of sect. 46, above quoted, the sheriff must 
 
 not become ,1 ini-i-iin 
 
 property of retain the proceeds 01 sale in nis hands for fourteen days. 
 
 after fourteen ^h 086 proceeds, where realized under a sale of goods (g], 
 
 days. cannot, therefore, become the indefeasible property of the 
 
 execution creditor till after the expiration of that period. 
 Where the execution so completed is the only act of bank- 
 ruptcy, and the money is, after the fourteen days' interval, 
 handed to the creditor, he can retain it as against the 
 trustee. This appears to be the only case in which it is 
 clear that the creditor can, as against the trustee in bank- 
 ruptcy of a debtor who becomes bankrupt within three 
 months after the seizure and sale, retain the benefit of his 
 execution. Where, prior to the execution, an act of bank- 
 ruptcy available for adj udication has been committed, it is, 
 perhaps, uncertain what the rights of an execution creditor 
 are, notwithstanding that he may have levied by seizure 
 
 Effect of and sale. If he has notice of such an act of bankruptcy, 
 before completion of the execution, it is clear that, under 
 sect. 45, he cannot retain the benefit of the execution he 
 puts in. If he has no such notice, but, nevertheless, such 
 
 (/) Consider dictum of Pollock, (g) Vide supra, p. 131 et seq., as 
 
 B., in Jones v. Parcell, 11 Q. B. D. to cash, &c. 
 430, p. 433.
 
 THE WRIT OF FIERI FACIAS. 155 
 
 an act of bankruptcy exists, it would appear that he can- Chap. iv. 
 not retain the benefit of an execution, because of the Scc ' 3 ( m -' 
 relation back of the trustee's title (/*), the execution being 
 bad for the reason that it is levied not upon the property 
 of the bankrupt, but upon that of the trustee. The enact- 
 ments of the present Bankruptcy Act differ widely upon 
 this subject from those formerly in force. 
 
 The sheriff is not bound to retain in his hands for four- Proceeds other 
 teen days the proceeds of an execution, excepting where 
 such proceeds are the results of seizure and sale. There- sale - 
 fore, notwithstanding the apparently clear terms of sect. 45, 
 a payment by the execution debtor to the sheriff should be 
 paid over to the creditor, and the trustee has no right to 
 ft. 
 
 It is difficult, where the sales under one fi. fa. are at From -what 
 different times, i. e., on different days, to ascertain from 
 what date the fourteen days prescribed by the section is to to rmi - 
 run. It has been decided that the section has no opera- 
 tion until the sheriff has realised, at any rate, to the 
 amount of the debt, the goods he has seized, and, therefore, 
 that the fourteen days runs from the last day of sale. 
 The fact of there being several distinct seizures does not 
 seem to have weighed with the Court (&). 
 
 SECT. 4. THE SHERIFF'S RIGHT TO POUNDAGE AND 
 EXPENSES OF EXECUTION. 
 
 By the statute West. I., in affirmance of the common Right to 
 law, it was provided that no sheriff should take any ^^f 
 reward to do his office (/) ; but, by virtue of various statutes, statute, 
 he has now the right to charge, and can now recover, 
 
 (A) Sect. 43. son, 3 Mor. B. R. 187. 
 
 (i) Re Brooke, 9 Ch. 301 ; Stock (A) Jones v. Parcel!, 11 Q. B. D. 
 
 v. Holland, L. R. 9 Exch. 147 ; and, 430. 
 
 under the present Act, Ex parte (1) 2nd Inst. 209 ; Woodgate v. 
 
 West Cannock Colliery Co., Se Pear- Knatchbull, 2 T. R. p. 158.
 
 156 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book * poundage (a claim in the nature of a claim for work 
 and labour (in) ) and fees upon executions. His right to 
 poundage is distinct from his right to other fees. 
 
 The right to poundage is given by the statute 28 Eliz. 
 c. 4, which still, notwithstanding its repeal (), entitles the 
 sheriff to have, receive, and take, for the serving and 
 executing of any extent or execution upon the body (o), 
 lands, goods, or chattels of any person, one shilling in the 
 pound for the first 100/., and sixpence in the pound for 
 every pound above 100/. (p) that he shall levy or extend 
 and deliver in execution (q) . Where simultaneous writs 
 are delivered to sheriffs in different counties, the sheriff 
 who first levies the execution appears entitled to the whole 
 poundage (r) . The statute presupposes that only one 
 execution can be levied. The statute provided for treble 
 damages against a sheriff " doing to the contrary" (s), and 
 for a penalty against him of forty pounds, one moiety 
 whereof is to go to the person suing there f or (t). The 
 treble damages, being given by statute in a case where 
 damages were recoverable at common law, carried treble 
 costs (u] . This right does not appear to be interfered with 
 by the terms of 0. LXV. r. 1, giving the Court discretion 
 as to costs (a-) . The recovery of treble damages is, how- 
 ever, now abrogated by the sections of 50 & 51 Viet. c. 55, 
 which we shall immediately proceed to discuss. 
 
 "Shall go The words in this statute of Elizabeth, " shall so levy," 
 
 levy." 
 
 (;) Graham v. Grill, 2 M. & S. C. P. D. p. 218. 
 
 p. 297. (r) Rex v. Barber, 3 Anstr. 717 ; 
 
 (n) 50 & 51 Viet. c. 55, s. 39, Hex v. Bowles, Wightw. 116. 
 
 sub-s. (5). For Act, see Appen- (s) Meaning, levying more than 
 
 dix IT. the statute entitles him to do. 
 
 (o) This does not extend to a writ (t) The Irish Act, corresponding 
 
 of attachment. Vide infra, Chap. to 28 .Eliz. c. 4, has been repealed 
 
 on Attachment. as to the treble damages. Byrne v. 
 
 (p) Lysterv. Bromley, Cro. Car. Hutchinson, 9 Ir. R. C. L. 75. 
 
 286. (u\ Deacon v. Morris, 2 B. & Aid. 
 
 (q) The words "deliver in 393. 
 
 execution" must be confined to (x] Hasker v. Wood, 54 L. J. 
 
 lands. See Mortimore v. Cragy, 3 Q. B. 419; 33 W. K. 697.
 
 THE WRIT OF FIERI FACIAS. 157 
 
 mean "shall seize and get the money "(y). A sheriff Chap. 17. 
 cannot, therefore, refuse to execute a writ until he has his ec ' ' 
 fees (z) ; and if he does not seize he is not entitled to Seizure 
 poundage, although the money due be paid to him after 
 the writ is in his hands for execution, and the money may 
 in some sense be said to have been recovered by means of 
 it (a). Tender before seizure is equivalent to payment, so Tender before 
 that the sheriff is not, in such case, entitled to poundage (&), 
 nor is he entitled to levy upon the sum thus tendered (c) . 
 In a recent case it was decided that the sheriff is entitled 
 to poundage only in respect of the amount actually 
 realized by the sale of the goods seized (d) ; but this deci- 
 sion has been dissented from, and the opinion of Cockburn, 
 
 C. J., expressed, that if the writ be virtually executed by 
 the sheriff's going down to the premises, and getting pay- 
 ment, the sheriff becomes entitled to poundage (e). In 
 all cases it would appear to be merely a question of 
 whether the amount has been levied in fact. A seizure, 
 followed by payment, undoubtedly constitutes a sufficient 
 levy to give a right to poundage, and the test of whether 
 or not a seizure has been effected is, whether an action of 
 trespass could be brought against the sheriff's officer if he 
 were not justified by the writ (/). But where there was 
 a seizure merely, and before sale the writ was set aside, 
 the sheriff was held not entitled to poundage (g). And 
 again, where, in consequence of the bankruptcy of the 
 debtor supervening, the execution was not fructuous, it 
 was decided that the sheriff had no right to poundage (h). 
 
 (y) Mortimore v. Cragg, 3 C. P. (d) Roe v. Hammond, 2 C. P. D. 
 
 D. p. 219. 300. 
 
 (z) Hescotfs case, 1 Salk. 330. He (e) Bissicks \. Bath Colliery Co., 2 
 
 becomes liable to indictment if he Ex. D. 459 ; on appeal, 3 Ex. D. 
 
 extort fees in this manner. 174. 
 
 (a) Nash v. Dickenson, L. R. 2 (/) Mortimore v. Cragg, 3 C. P. 
 
 C. P. 252. D. 216 ; vide supra, p. 120. 
 
 (l>) Colls v. Coates, 11 A. & E. (g) Milesv. Harris, 12 C. B. N. S. 
 
 826 ; 3 P. & D. 511. 550 ; 31 L. J. C. P. 361. 
 
 (e) Brun v. Hutchinson, 2 D. & (h) In re Ludmore, 13 Q. B. D. 
 
 L. 43. 415.
 
 158 
 
 Book I. 
 
 Poundage, 
 how calcu- 
 lated. 
 
 Fees other 
 than pound- 
 age. 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 The poundage is not calculated on the sum which the 
 sheriff is directed to levy, nor upon the sum realized by a 
 sale, but on the amount paid to the execution creditor as 
 the proceeds of the execution (i) . This appears to be 
 subject to a dictum, that where a sheriff realises and pays 
 rent due, he is entitled to poundage on the amount of the 
 rent, but not from the landlord (k) . There must, of 
 course, be an effectual levy, and not an abortive levy, over 
 the goods of a third person (/). 
 
 Entirely distinct from the right to poundage given by 
 the above statute of 28 Eliz. c. 4, is the right to fees, a 
 scale of which has been adopted in pursuance of 1 Yict. 
 c. 55 (ni). That statute, sect. 2, provided that sheriffs 
 might, in the execution of process directed to them, 
 demand, take, and receive such fees, and no more, as 
 should be allowed by any officer of the several Courts of 
 law at Westminster charged with the duty of taxing 
 costs under the sanction and authority of the judges of the 
 said Courts respectively. 
 
 The list of fees prepared in pursuance of this enactment 
 is set forth in the Appendix (n). The statute repealed 
 several statutes relating to the remuneration of sheriffs, 
 but left untouched the 28 Eliz. c. 4. Poundage can, 
 therefore, be charged and recovered in addition to the 
 
 (i) See Byrne v. Hutchinson, 9 
 Ir. K. C. L. 75, where the sura 
 to be levied appearing on the in- 
 dorsement was held to be the 
 amount on which poundage was 
 chargeable. See also Rex v. Robin- 
 son, 2 C. M. & E. 334 ; 4 Dowl. 447 ; 
 Evans v. Manero, 7 M. & W. 463 ; 
 9 Dowl. 256 ; Chapman v. Boivlby, 
 1 D. N. S. 83. It is perhaps a 
 question whether poundage can be 
 claimed in respect of anything but 
 the person, land, or goods and 
 chattels e. g., securities for money 
 under sect. 10 of 1 & 2 Viet. c. 
 
 110. See Hex v. Fillers, 8 Price, 587. 
 
 (k) Gore v. Goston, 1 Stra. 643. 
 This is entirely distinct from the 
 question in Davies v. Edmonds, 13 
 L. J. Ex. 1 ; 12 M. & W. 31, which 
 arose under the table of fees men- 
 tioned infra, Appendix III. 
 
 (I) Bilke v. Havelock, 3 Camp. 
 374 ; Cole v. Terry, 5 L. T. N. S. 
 347. 
 
 (m) Still in force, notwithstand- 
 ing the repeal of the statute itself, 
 50 & 51 Viet. c. 55, s. 39, sub-s. (5). 
 See Appendix II. 
 
 () Appendix III., infra, p. 471.
 
 THE WRIT OF FIERI FACIAS. 159 
 
 fees allowed under the scale (o). As to those fees in detail, Chap. IV. 
 reference must be made to the Appendix (p). The sheriff Sec ' 4 ' 
 is entitled only to those fees which are set forth in the list, 
 and not to any extra fees (<?) . 
 
 The person at whose suit the writ of execution is issued 
 
 must bear the expenses of it (r). The sheriff, being entitled fees! 
 to his poundage and fees as of right, can sue the execution 
 creditor for them (s). It makes no difference to his right 
 to recover that the whole judgment and execution have 
 been set aside as irregular ; provided his acts were justified 
 by the writ, he has nothing to do with the regularity or 
 irregularity of the proceeding under which it issued (t) , 
 It has, however, been held that he is not entitled to 
 maintain his action where, after he has seized, but before 
 sale, the proceedings under the judgment have been 
 stayed (u). 
 
 The sheriff has no right of action for his fees against 
 a solicitor who simply places a writ in his hands for 
 execution (?) ; though where the solicitor expressly requests 
 that a particular bailiff shall execute the process, that 
 bailiff can recover the amount of his fees from him (#). 
 
 By 0. XLIL r. 15, " In every case of execution the 0- XLH. 
 party entitled to execution may levy the poundage, fees, 
 and expenses of execution, over and above the sum re- 
 covered." 
 
 (o) Davies v. Griffiths, 4 M. & W. (s) As to poundage, see Tyson v. 
 
 377 ; 7 Dowl. 204 ; Pilkington v. Paske, 2 Ld. Raym. 1212. 
 
 Cooke, 16 M. & W. 615. (t) Bullen v. Ansley, 6 Esp. Ill ; 
 
 (p) Appendix III., infra, p. 471. Eawstorne v. Wilkinson, 4 M. & S. 
 
 (q) Slater v. Names, 7 M. & W. 256. 
 
 413; 9 Dowl. 221; 10 L. J. Ex. (u) Milesv. Harris, 12 C. B.N. S. 
 
 100 ; Davies v. Edmonds, 12 M. & 550. 
 
 W. 31 ; 1 D. & L. 395 ; 13 L. J. (t>) Royle v. Busly, 6 Q. B. D. 
 
 Ex. 1 ; Phillips \. Lord Canterbury, 171. This decision summarises the 
 
 11 M. & W. 619 ; 12 L. J. Ex. 401 ; authorities on the liability of the 
 
 where it was pointed out that by solicitor. Bilke v. Havelock, 3 Camp. 
 
 the authority of the judges alone 374. 
 
 could additional fees be allowed. (x) Foster v. Blakelock, 5 B. & C. 
 
 (r] Wats. Sher. 112. 328.
 
 16J 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 The levy for 
 fees and 
 poundage. 
 
 Costs of ad- 
 vertisement 
 of sale under 
 ft. fa. 
 
 Extortion. 
 
 This rule is taken from sect. 123, 0. L. P. Act, 1852 (y). 
 The costs of the specific execution only can be levied under 
 this rule (z) . As to what further is comprised in the words 
 " fees and expenses of execution," see list in Appen- 
 dix (a). The party entitled to execution can levy; the 
 rule gives the sheriff himself no new right to recover his 
 fees (b). It is doubtful whether this rule extends to 
 execution under an ekgit (c] . It does not extend to the 
 general costs of the inquisition, but is confined to sheriffs' 
 charges (d). 
 
 By sect. 46 of the Bankruptcy Act, 1883, sub-sect. (1), 
 the costs of execution (del] are made a charge upon the goods 
 delivered by the sheriff to the official receiver or trustee, 
 and under sub-sect. (2), in case of a sale, the sheriff may 
 deduct the costs of execution from the amount realized (e). 
 
 As we have seen, under sub-sect. (1), where there has 
 been no sale, poundage cannot be recovered by the 
 sheriff (/). 
 
 There may be a question, notwithstanding sect. 145 of 
 the Bankruptcy Act, 1883, whereby, in all executions for 
 over 201. , the sheriff is required to sell by public auction, 
 whether he can recover any more than the amount allowed 
 by the scale, and whether he can, therefore, charge for 
 advertising the sale (g). 
 
 By sub-sect. (2) of sect. 29 of the Sheriffs Act, 1887 (/<), 
 
 (y] For old law and history, see and does therefore include expen- 
 
 Wats. Sher. 113 ; Sneary \.AMy, 1 
 Ex. D. 299, judgment of Field, J. 
 
 (z) Marquis of Salisbury v. Hay, 
 8 C. B. N. S. 193. 
 
 () Appendix III., infra, p. 471. 
 
 (b) See Goode v. Lanyley, 7 B. & 
 C. 26. But see Curtis v. Mayne, 2 
 Dowl. N. S. 37 ; and Sneary v. 
 Abdy, 1 Ex. D. 299. 
 
 (c) Mahon v. Miles, 30 W. E. 123. 
 
 (d) Porter v. Wotton, 28 Sol. Jo. 
 648. 
 
 (dd) This includes such expenses 
 only as the sheriff is bound to incur, 
 
 diture by him for cutting and carry- 
 ing crops. In re Woodham, Exparte 
 Conder, 20 Q. B. D. 40. 
 
 (e) The taxation of the costs re- 
 coverable under these sub -sections 
 is provided for by G. E. 118, 119, 
 respectively. 
 
 (/) In re Ludmorc, 1 3 Q. B. D. 4 1 5. 
 
 (g) Braithwaite v. Marriott, 1 H. 
 & C. 591 ; under similar section of 
 Act of 1861. See EC Craycraft, Ex 
 parte Broicning, 8 Ch. D. 596. 
 
 (h) 50 & 51 Viet. c. 55, for which 
 see Appendix II., infra.
 
 THE WRIT OF FIERI FACIAS. 161 
 
 if any person, being either a sheriff, under-sheriff, bailiff, Chap. IV. 
 or officer of a sheriff, or being employed in levying or Sec ' *' 
 collecting debts due to the Crown by process of any Court, 
 or being an officer to whom the return or execution of 
 writs belong, does any of the following things (inter 
 alia) : 
 
 (b) Takes or demands any money or reward under any 
 pretext whatever, other than the fees or sums allowed 
 by or in pursuance of this or any other Act ; 
 he and any person procuring the commission of any 
 such offence shall, without prejudice to any other punish- 
 ment under the provisions of this Act, but subject as there- 
 inafter mentioned, be liable (1) to be punished by the 
 Court as hereinafter mentioned ; and (2) to forfeit two 
 hundred pounds, and to pay all damages suffered by any 
 person aggrieved, and such forfeiture and damages may 
 be recovered by such person as a debt by an action in her 
 Majesty's High Court of Justice. 
 
 Sub-sect. (3) of the same section provides for the punish- Liability to 
 ment of any person guilty under the above sub-section, in contempt for 
 like manner as a person guilty of contempt of Court may extortion, 
 be punished ; and sub-sect. (4) gives discretion to the Court Costs of 
 to order the costs of a complaint against an officer to be app c 
 paid by one party to the other (?'). In like manner, any 
 person, not being such officer as aforesaid, who assumes or 
 pretends to act as such, or demands or takes any fee or 
 reward under colour or pretext of such office, is also guilty 
 of a contempt of Court (sub-s. 6). Any proceeding for 
 contempt in pursuance of this section must be brought 
 within two years after the alleged offence was committed, 
 and, if the proceedings be in a summary manner, shall be 
 taken before the end of the sittings of the Court held next 
 after the offence was committed. 
 
 The motion under the Act, of which the above is in 
 
 (t) Under the former enactment, by consent referred for taxation, 
 
 s. 4 of 1 Viet. c. 55, this was held Curletcis v. Bird, 1 Dowl. N. S. 
 
 not to apply where the costs were 752 ; 6 Jur. 669. 
 
 E. M
 
 162 
 
 Book I. 
 
 Remedy for 
 extortion by 
 indictment. 
 
 Action for 
 extortion. 
 
 CONCERNING EXECUTION OX JUDGMENTS, ETC. 
 
 substance a re-enactment, could be both against the sheriff 
 for an order that he do refund, and against the officer for 
 leave to issue a writ of attachment (k). 
 
 At common law, there was a remedy for extortion by 
 indictment, but only against the person who was actually 
 guilty of the offence. The sheriff himself, therefore, could, 
 as a rule, only be proceeded against by action ; for he was 
 seldom, in practice, party to an extortion (/). 
 
 The remedy by action still exists, though, by reason of 
 the smallness of the sums generally in dispute, it is seldom, 
 if ever, resorted to (m). 
 
 Where the sheriff claims more than he is entitled to 
 under an order that he is to be paid possession money, e.g., 
 for a second man in possession, when he was not necessary, it 
 is not necessarily extortion (n). It is a question whether, 
 if the sheriff, at the request of the party, does something 
 which it is not his duty to do under the writ, he can be made 
 liable for extortion in deducting remuneration therefor 
 from the proceeds of the execution (0). 
 
 (k) Slake T. Newlurn, 17 L. J. 
 Q. B. 216; 5Dowl. & L. 601. 
 
 (I) Wats. Sher. 115. 
 
 (m) Longdill v. Jones, 1 Stark. 
 345 ; Pilkington v. Cooke, 16 M. & 
 "W. 615. The extortion does not 
 
 make the sheriff liable as trespasser 
 ab initio. Shorlandv. Govett, 5 B. & 
 C. 485. 
 
 (n} Long v. Bray, 10 W. R. 841. 
 
 (o) Stephens v. Eothwell, 6 Moore, 
 338.
 
 ( 163 ) 
 
 CHAPTER V. chap. v. 
 
 Sec. 1. 
 
 THE WRIT OF ELEGIT. 
 
 THE method of enforcing a judgment or order for the re- 
 covery of money, which it is proposed to discuss in this 
 Chapter, is that available where recourse is had to land. 
 The only writ for such a purpose is the writ given by the 
 Statute of Westminster II., still called, and, as we shall 
 see, still with reason called, the writ of elegit. 
 
 The subject of this Chapter will be best treated of in the Arrangement, 
 following divisions or sections : 
 
 SECT. 1. The writ, and the Statutes on which it is 
 founded. 
 
 2. The duties of the sheriff under the writ, and 
 
 its effect on estates in land. 
 
 3. The eifect of certain Statutes on the rights of 
 
 judgment creditors with respect to land. 
 
 4. The sheriff's right to poundage. 
 
 SECT. 1. THE WRIT, AND THE STATUTES ON WHICH IT 
 is FOUNDED. 
 
 " At the common law, where a subject sued execution Execution at 
 upon a judgment for debt or damages, he should not have C( 
 the body of the defendant or his land in execution (unless 
 it were in special cases), and the reason of the law was 
 that the body, in case of debt, should not be detained in 
 prison, but be at liberty, not only to follow his own affairs 
 and business, but also to serve the king and his country, 
 when need should require ; nor to take away the possession 
 
 M2
 
 164 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Statute of 
 Elegit, 
 Westminster 
 II. c. 18. 
 
 Statute of 
 Elegit still 
 foundation of 
 execution as 
 to land. 
 
 of his lands in that case, for that would hinder the follow- 
 ing of his husbandry and tillage, which is so beneficial to 
 the commonwealth, whereof you may read at large in Sir 
 William Herbert's case" (a). 
 
 Such being the common law, the Statute Westminster 
 II. c. 18, gave the writ of elegit. 
 
 The words of the statute are : " When debt is re- 
 covered or acknowledged in the King's Court, or damages 
 awarded, it shall be from henceforth in the election of 
 him that sueth for such debt or damages to have a writ 
 of fieri facias (b] unto the sheriff to levy the debt of the 
 lands and goods, or that the sheriff shall deliver to him 
 all the chattels of the debtor (saving only his oxen and 
 beasts of his plough) and the one half of his land, until 
 the debt be levied upon a reasonable price or extent. 
 And if he be put out of that tenement, he shall recover by 
 a writ of novel disseisin, and after by a writ of re-disseisin, 
 if need be." 
 
 The writ of execution issued to the sheriff in pursuance 
 of this statute is called an elegit (c}. 
 
 The writ given by this statute is still in use, with its 
 time-honoured and cumbrous procedure, in practically the 
 same condition as at the time when it was established. It 
 remains the proper remedy whenever it is sought to have re- 
 course to a legal estate in land for the satisfaction of a debt. 
 The operation of the writ has been substantially extended 
 and modified by two statutory enactments only. We do 
 not intend to imply, that those two enactments are the only 
 
 (a) Co. 2nd Inst. 394. An ex- 
 cellent and more scientific reason 
 for there being no execution against 
 land at the common law is given in 
 these words : ' ' Not only because the 
 debt was contracted upon the per- 
 sonal security, but also that the lord 
 might not have a stranger put upon 
 him, but those only were to enjoy the 
 land who came in by feudal dona- 
 
 tion." Gilb. Ex. 32. See, also, 
 notes to Underhill v. Devereux, 2 
 Saund. 68 i. 
 
 (b) Fieri facias. "Here under these 
 words is also the writ of krari facias 
 included." Co. 2nd Inst. 395. 
 
 (c) The reason for this name is 
 stated in note to 2 Saund. 68 c, 5th 
 ed. The entry on the roll being 
 elegit sili liberari omnia catalla, $c.
 
 THE WRIT OF ELEGIT. 165 
 
 ones which it will become necessary for us to consider, but Chap. v. 
 they are the only ones of practical application affecting Sec - * 
 the writ itself. 
 
 The scope and operation of the writ was extended by Writ ex- 
 sect. 11 of 1 & 2 Viet. c. 110. This section is, in a great ^f 6 ?^ 
 measure, the foundation of the law of the modern writ of 1 & 2 Viet. 
 elegit. It deserves, therefore, special attention. After ' U0 ' 
 reciting that the existing law is defective in not providing 
 adequate means for enabling judgment creditors to obtain 
 satisfaction from the property of their debtors, &c., it 
 proceeds : "be it therefore further enacted, that it shall be 
 lawful for the sheriff or other officer to whom any writ of 
 elegit, or any precept in pursuance thereof, shall be directed, 
 at the suit of any person, upon any judgment which, at the 
 time appointed for the commencement of this Act, shall 
 have been recovered, or shall be thereafter recovered in any 
 action in any of her Majesty's Superior Courts at West- 
 minster, to make and deliver execution unto the party in 
 that behalf suing, of all such lands, tenements, rectories, 
 tithes, rents, and hereditaments, including lands and here- 
 ditaments of copyhold or customary tenure, as the person 
 against whom execution is so sued, or any person in trust 
 for him, shall have been seised or possessed of at the time 
 of entering up the said judgment, or at any time after- 
 wards, or over which such person shall, at the time of 
 entering up such judgment, or at any time afterwards, have 
 any disposing power which he might, without the assent 
 of any other person, exercise for his own benefit in like 
 manner as the sheriff or other officer may now make and 
 deliver execution of one moiety of the lands and tenements 
 of any person against whom a writ of elegit is sued out, 
 which lands, tenements, rectories, tithes, rents, and here- 
 ditaments, by force and virtue of such execution, shall 
 accordingly be held and enjoyed by the party to whom 
 such execution shall be so made and delivered, subject to 
 such account in the Court, out of which such execution 
 shall have been sued out, as a tenant by elegit is now
 
 166 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Copyholds. 
 
 Effect of 
 sect. 11. 
 
 No longer 
 affects goods, 
 Bankruptcy 
 Act, 1883, 
 e. 146, sub- 
 
 8. (1). 
 
 subject in a Court of equity : provided always, that such, 
 party suing out execution, and to whom any copyhold or 
 customary lands shall he so delivered in execution, shall he 
 liable, and is hereby required to make, perform, and render 
 to the lord of the manor, or other persons entitled, all such 
 and the like payments and services as the person against 
 whom such execution shall be issued would have been 
 bound to make, perform, and render, in case such execu- 
 tion had not issued ; and that the party so suing out such 
 execution, and to whom any such copyhold or customary 
 lands shall have been so delivered in execution, shall be 
 entitled to hold the same until the amount of such pay- 
 ments, and the value of such services, as well as the amount 
 of the judgment, shall have been levied: provided also, 
 that as against purchasers, mortgagees, or creditors, who 
 shall have become such before the time appointed for the 
 commencement of this Act, such writ of elegit shall have 
 no greater or other effect than a writ of elegit would have 
 had in case this Act had not passed." 
 
 The effect, shortly stated, of the section may be said to be, 
 that it extended the remedy by writ of elegit to all the 
 debtor's lands instead of half, which alone were subject to 
 it under the Statute of Westminster II., and further sub- 
 jected to the writ thus extended, lands and estates which 
 could not, before the enactment, be touched in execution 
 either by elegit or in any other way. What lands and 
 estates are thus included will appear in the following sec- 
 tion of this chapter, where we discuss the operation of the 
 writ in detail. 
 
 The remaining material enactment upon the operation 
 of the writ which we shall at present notice, is section 146, 
 sub-s. (1) of the Bankruptcy Act, 1883, by which " The 
 sheriff shall not, under a writ of elegit, deliver the goods of 
 a debtor, nor shall a writ of elegit extend to goods" (d). 
 
 (d) By sect. 168 of the Act the 
 word "goods" is construed to 
 
 mean chattels personal. See Rich- 
 ardson v. Webb, 1 Mor. B. K. 40.
 
 THE WRIT OF ELEGIT. 167 
 
 This section was passed to abolish what was characterised Chap. v. 
 by James, L. J., as an absurd anachronism, for the writ 
 included goods. This means of execution over chattels 
 had, however, become almost obsolete, when it was dis- 
 covered that an execution creditor, seizing goods under 
 this writ, could make himself a secured creditor, and thereby 
 on the bankruptcy of the execution debtor evade the usual 
 consequences of seizing goods in execution for more than 
 50/. 0). 
 
 We have seen that by 0. XLII. r. 17, a writ or writs of 
 elegit can be issued to enforce the payment of money pay- 
 able under a judgment or order (/). 
 
 The form of the writ prescribed (g) is given in Appen- Form of writ 
 dix H., No. 3, and when amended, in order to conform to 
 sect. 146 of the Bankruptcy Act just referred to, is as 
 follows : 
 
 Victoria, by the grace of Grod, &c. 
 To the sheriff of , greeting : 
 
 Whereas lately in our High Court of Justice, in a 
 certain action [or certain actions, as the case may be~\ there 
 depending, wherein A. B. is plaintiff, and C. D. defendant 
 [or in a certain matter there depending, intituled " In the 
 matter of E. F.," as the case may be^\, by a judgment [or 
 order, as the case may be] of our said Court made in the 
 said action [or matter, as the case may be], and bearing 
 date the day of , it was adjudged [or ordered, 
 
 as the case may be] that C. D. should pay unto A. B. the 
 sum of , together with interest thereon at the rate 
 
 of per centum per annum, from the day of 
 
 , together also with costs, as in the said judgment [or 
 order, as the case may be] mentioned, and which costs have 
 been taxed and allowed by , one of the taxing 
 
 officers of our said Court, at the sum of , as appears 
 by the certificate of the said taxing officer, dated the 
 
 (e) Ex parte Abbott, Re Gourlay, (/) Vide supra, p. 108. 
 
 15 Ch. D. 447. (g) O. XLII. r. 14.
 
 168 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. day of . And afterwards the said A. B. came into 
 
 our Court, and according to the statute in such case made 
 and provided, chose to be delivered to him all such lands, 
 tenements, rectories, tithes, rents, and hereditaments, in- 
 cluding lands and hereditaments of copyhold or customary 
 tenure, in your bailiwick as the said C. D., or anyone in 
 trust for him, was seised or possessed of on the day 
 
 of in the year of our Lord [the day on which 
 
 the judgment or order was made] (ti), or at any time after- 
 wards, or over which the said C. D. on the said day 
 of , or at any time afterwards, had any disposing 
 power, which he might without the assent of any other 
 person exercise for his own benefit, to hold the said lands, 
 tenements, rectories, tithes, rents, and hereditaments 
 respectively, according to the nature and tenure thereof, 
 to him and to his assigns, until the said two several sums 
 of and , together with interest upon the 
 said sum of at the rate of per centum per 
 annum from the day of , and on the said sum 
 of (costs) at the rate of 4 per centum per annum 
 from the day of shall have been levied. 
 Therefore we command you that without delay you cause 
 to be delivered to the said A. B. by a reasonable [price 
 or (/)] extent all such lands and tenements, rectories, 
 tithes, rents, and hereditaments, including lands and here- 
 ditaments of copyhold or customary tenure in your baili- 
 wick, as the said C. D., or any person or persons in trust 
 for him, was or were seized or possessed of on the 
 day of '[the date of the certificate of taxation. The 
 writ must be so moulded as to follow the substance of the 
 judgment or order], or at any time afterwards, or over 
 which the said C. D., on the said day of , or 
 at any time afterwards, had any disposing power which he 
 
 (h) Vide infra, p. 188. as to meaning of words "price" 
 
 (i) These words "price or" which and "extent." Wats, on Sher. 
 
 refer to goods seem now unneces- p. 307 (?). 
 
 sary. See 2 Saund. 68 g, in notis,
 
 THE WRIT OF ELEGIT. 169 
 
 might, without the assent of any other person, exercise for Chap. V. 
 his own benefit, to hold the said lands, tenements, rectories, 8ec - * 
 tithes, rents, and hereditaments respectively, according to 
 the nature and tenure thereof, to him and to his assigns, 
 until the said two several sums of and , 
 
 together with interest as aforesaid, shall have been levied. 
 And in what manner you shall have executed this our 
 writ make appear to us in our Court aforesaid, immediately 
 after the execution thereof, under your seals, and under the 
 seals of those by whose oath you shall make the said ex- 
 tent. And have there then this writ. 
 WITNESS, &c. 
 
 There are no rules of court specially relating to the No rules of 
 practice under the writ of elegit. It is left to have the same confeS^ 7 
 force and effect as heretofore (/i) . We have already dis- practice under 
 
 . eleqit 
 
 cussed certain rules which apply equally to writs of fi. fa. 
 and of elegit, and to executions generally. To these we 
 must refer the reader (/). 
 
 The Statute of Westminster gave a new remedy to Conditions 
 judgment creditors. The writ, therefore, can only issue 
 subject to the conditions laid down by, or to be implied 
 from, the statute itself. There is nothing in law to pre- 
 vent a creditor from issuing simultaneously all writs of 
 execution which are available to him on the judgment or 
 order being obtained. Notwithstanding the alternative Simultaneous 
 terms of 0. XLII. r. 17 that the person to whom the 
 sum of money is payable shall " be enabled to sue out one 
 or more writs oifi.fa., or one or more writs of elegit" it 
 is clear that such a person can issue out a fi. fa. and an 
 elegit at the same time. The benefit, however, of both 
 writs cannot, by the clear construction placed upon the 
 statutes, be taken concurrently. 
 
 The creditor does not exercise his option by issuing either Creditor's 
 or both the writs ; for we have seen that he was always at 
 liberty to issue on his judgment all available writs of exe- 
 cution at once. The statute did not interfere with this 
 
 (*) O. XLIII. r. 1. (0 Chaps. II. and IV. supra.
 
 170 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 but, in the 
 alternative, 
 whether he 
 will have the 
 laud. 
 
 Effect of 
 bankruptcy of 
 debtor upon 
 this. 
 
 Execution 
 finished by 
 elegit. 
 
 right in any way, but gave a new remedy by enacting 
 that the creditor might hold an estate in the land of the 
 debtor in satisfaction of his debt, which is merely another 
 way of saying, in the words of the statute itself, " until 
 the debt be levied." The first election given to a creditor 
 who has issued both writs, arises, therefore, when they come 
 to be executed ; he can then choose to levy hisfi.fa., or to 
 take the land under the elegit. If he chooses the fi.fa., 
 and does not realise sufficient to satisfy his debt, he still 
 has his election, and can take the remedy given him by 
 the statute, and extend the land under an elegit (ni). By 
 the execution of the fi. fa., the creditor has not had the 
 medietatem terrce, which was the new thing that was to be 
 delivered on the elegit, and which the statute designed 
 should be a bar to the fi.fa. (n). 
 
 It is clear, therefore, that an execution creditor can 
 levy under his fi.fa., and then proceed for the balance by 
 elegit. This is subject to the law of bankruptcy, and it 
 appears, from the observations already made (o), that 
 where part of the debt has been levied by seizure and sale 
 under a fi.fa., the execution creditor cannot, as against 
 the trustee in bankruptcy of the execution debtor, retain 
 the benefit of a writ of elegit, under which lands had been 
 delivered within three months of the sale (o). 
 
 Where the elegit is once executed, no other writ of exe- 
 cution can issue thereafter on the same judgment for the 
 same debt (p). It is clear that the execution creditor can 
 
 (m) This has been expressed, not 
 very clearly, ' ' the election is be- 
 tween the writ of fi. fa. and holding 
 the land ; not between the writ of 
 ji. fa. and the writ of elegit." See 
 Foster v. Jackson, Hob. pp. 57, 58, 
 and the notes to Underhill v. Deve- 
 reux, 2 Saund. 68. 
 
 (n) Bacon, Abr. Execution, D. ; 
 Hob. 57. 
 
 (o) Sect. 45, Bank. Act, 1883, vide 
 supra, p. 152. 
 
 (p) " The taking of the land in 
 extent for the debt is, in judgment 
 of law, as if he had taken a lease 
 for years in satisfaction of his debt, 
 and that is his full satisfaction in 
 law, that although this execution 
 is afterwards reversed, yet he shall 
 not have any other execution." 
 Coke, C. J., in Crawley v. Lidgeat, 
 Cro. Jac. 338 ; see Hele v. Bexley, 
 17 Beav. 14.
 
 THE WRIT OF EL EG IT. 171 
 
 issue simultaneously several writs of clef/it into different Chap. v. 
 counties, and for that purpose may divide his execution 
 into several sums (q] ; but it was for a long time considered 
 that he could not issue a second elegit either into the same 
 or into a different county after the return of the first exe- 
 cuted ()-}. Now, perhaps, he is enabled so to do by the Query, 
 express words of sect. 11 of 1 & 2 Viet. c. 110, above 
 quoted, whereby the sheriff may deliver execution of all second elegit. 
 lands of which the execution debtor shall have been 
 possessed at the time of entering up judgment, or at any 
 time afterwards (s) ; but this does not interfere with the rule, 
 that whatever land is delivered ultimately, whether under 
 the same or a new writ, is delivered in satisfaction. 
 
 SECT. 2. THE DUTIES or THE SHERIFF UNDER THE 
 WRIT AND ITS EFFECT ON ESTATES IN LAND. 
 
 The mandate in the writ is : " Therefore we command Material 
 you that without delay you cause to be delivered to the ^it a 
 said A. B., by a reasonable [price or ()] extent, all such 
 lands, &c." 
 
 The first duty of the sheriff is to deliver to the creditor The delivery, 
 such lands of the judgment debtor as are subject to the 
 writ (w) . In order to ascertain what lands belong to the 
 debtor, what estate he has therein, and the value thereof, 
 the sheriff must hold an inquest (x). This is done by The inquest. 
 
 (q) 2 Saund. 68 c. The "one or p. 381. 
 
 more writ or writs of elegit" of (s) See 2 Saund. 68 c, note (c). 
 
 O. XLII. r. 17 (vide supra, p. 108), It is, however, at least a doubtful 
 
 may be construed to mean this. point. 
 
 (r) 2 Saund. 08 d ; Bac. Abr. tit. (t) 2 Saund. 68 g ; Watson, Sher. 
 
 Execution (D). But, apparently, 307 (d] ; Bank. Act, 1883, s. 146 (1), 
 
 on the discovery of lands of the supra, p. 166. 
 
 debtor, after the execution of the (u) Vide infra, as to what lands 
 
 first writ, it was taken off the are subject to the writ, 
 
 file and a new writ granted. (x) Co. Litt. 289 b. See Garra- 
 
 Lowthal v. Tomkins, 2 Eq. Ca. Abr. way v. Harrington, Cro. Jac. 569.
 
 172 
 
 Book I. 
 
 Evidence 
 before the 
 jury. 
 
 What the 
 delivery con- 
 sists in. 
 
 The return. 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 summoning a jury. The under- sheriff presides, and the 
 proceedings are conducted as on an ordinary trial before a 
 jury (y). It is not essential, however, that notice of the 
 inquisition should be given to the judgment debtor (s), 
 and the proceeding is practically an ex parte one, for the 
 jury have no right to go into the question of title. 
 Therefore, where proof is given that the possession of the 
 land is in the debtor, or that he is in receipt of the rents, 
 there is prim a facie evidence of title in the defendant (). 
 The Court has the same jurisdiction over the finding of 
 the jury in this case as in every other, and may set aside 
 the verdict on grounds which would there be sufficient (a). 
 Notwithstanding the broad statement that the jury has no 
 right to go into a question of title, evidence can, it is sub- 
 mitted, be tendered before them as to the person who is 
 the real owner of the land, otherwise third persons, such as 
 mortgagees not in possession, might conceivably be injured 
 by the verdict. There is, however, authority for the state- 
 ment that a mortgagee cannot proceed summarily to set 
 the verdict aside ; he is relegated, apparently, to his action 
 for recovery of possession (&) or for foreclosure. 
 
 The mandate that the sheriff " cause to be delivered" is 
 not, as in the case of a writ of possession, literally ful- 
 filled (c) . All that the sheriff or under-sheriff in fact does, 
 is to take notes of the evidence and the finding, and make 
 a return of the inquisition (d). The formalities necessary 
 
 (y) For the fees to which the 
 sheriff is entitled, see Appendix 
 III. infra, p. 471. 
 
 (z) Steed \. Layner, 2 Ld. Raym. 
 1382. 
 
 (a) 2 Wins. Saund. 214, n. (z) ; 
 Barnes v. Harding, 1 C. B. N. S. 
 568. Where the verdict is set aside, 
 a second inquisition can be held 
 under the same writ. Ibid. If the 
 inquisition is in itself a void pro- 
 ceeding, the Court will not inter- 
 fere to set it aside. Morris v. Jones, 
 
 2 B. & C. 243 ; 3 Dowl. & R. 603 ; 
 
 but see last case. 
 
 (b) Cooper v. Gardner, 3 A. & E. 
 211. 
 
 (c) " Under an elegit he [the 
 sheriff] certainly could not deliver 
 the lands extended." Kenyon, 
 C. J., Taylor v. Cole, 3 T. R. p. 295. 
 But if possession is delivered, the 
 execution debtor cannot proceed by 
 action to recover. Jefferson v. Daw- 
 son, 3 Keb. 243. 
 
 (d) In case the verdict is ques-
 
 THE WRIT OF ELEGIT. 173 
 
 to a good return appear in the notes to the Appendix (e). Chap. v. 
 When this return is made and filed of record, the execution Sec - 2 - 
 creditor's title is complete under the writ. His title is, 
 in fact, founded upon the inquisition, and the writ ought 
 to be returned, to the intent that the Court shall judge of 
 the sufficiency or insufficiency of that inquisition (/) . The 
 title of the execution creditor may, therefore, be considered 
 incomplete until the return has been made (g) . After the 
 return, the title of the execution creditor is thereupon 
 founded on, and derivative from, the title of the execution 
 debtor, and is no better, nor has any greater effect, than 
 his (/?.). The question of what is sufficient to complete the 
 title of the execution creditor under the writ, and the 
 question, what is a seizure of lands sufficient to complete 
 the execution under sect. 45 of the Bankruptcy Act, 
 1883 (e), are different. As soon, apparently, as the inqui- 
 sition is held, the execution is completed (/) ; but the title 
 of the creditor requires that the return of the inquisition 
 shall be filed (k). Where any of the parties to the inqui- 
 sition die, or where their interest otherwise devolves, the 
 case is subject to the general rules upon the matter, which 
 we have already discussed (/). 
 After the return setting forth the inquisition, the estate Effect of 
 
 which the execution debtor has in the premises, and the e xeJutum cre- 
 ditor. 
 
 tioned, the sheriff is, apparently, (i) This section, is referred to 
 
 bound to verify his notes. See more in detail, supra, p. 152. 
 
 course pursued in Barnes v. Hard- (j) Re Hobson, 3 Ch. D. 492, 
 
 ing, I C. B. N. S. 568. where the suggestion of Bacon, 
 
 (e) Infra, p. 415, Form 49. V.-C., that a fit of apoplexy fall- 
 
 (/) Fulwood's case, 4 Rep. 67 b. ing on the sheriff before he had 
 
 In other writs of execution which time to return the writ might 
 
 are the most final process, the work injustice, is eminently cha- 
 
 return is unnecessary. Casseldine racteristic. 
 
 v. Munday, 2 Dowl. 169. (K) Guest v. Cambridge Hail. Co., 
 
 (ff) Hoe's case, 5 Rep. 90 a ; Gar- L. R. 6 Eq. 619. 
 
 raway \. Harrington, Cro. Jac. 569. (1) Vide supra, p. 48 et seq., and 
 
 (h) See judgment of Gibbs, C. J., specially note (r), p. 54. 
 Rogers v. Pitcher, 6 Taunt. 202, 206.
 
 174 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 When he may 
 bring action 
 to recover the 
 land. 
 
 Tenants of 
 
 execution 
 
 debtor. 
 
 fact that lie is in possession thereof, the execution creditor 
 becomes tenant by elegit, and can bring ejectment. He 
 cannot do so where the judgment debtor has himself no 
 right of entry ; for example, where the premises are let to 
 a tenant (m). It was at one time said that a judgment in 
 ejectment was an essential muniment of title of the tenant 
 by clegit. This view is not in accordance, it is submitted, 
 with principle, for any person who can maintain ejectment 
 can enter peaceably (n). 
 
 Where the land is in the possession of tenants of the 
 execution debtor, ejectment cannot be maintained as 
 against them, but notice of the return of the inquisition 
 should be given to them. The tenant by clegit can then 
 maintain an action for use and occupation (0), or he can 
 proceed by distress or action for the rent (p). He cannot, 
 however, sustain an action for rent becoming due between 
 the date of the writ and the inquisition (q). 
 
 Nature of - The words of the statute and of the writ are, with 
 
 may be taken regard to the interests in land which may be taken under 
 
 under the j^ o a mos t general nature. They do not of themselves 
 
 confine the sheriff's duty to delivering any particular kind 
 
 of land or any specified estate which the debtor may have 
 
 in it. It is, however, always understood that (subject to 
 
 statutory enactments as to equitable interests, which we 
 
 (m) Rogers v. Pitcher, 6 Taun. 
 202, 206. 
 
 (n) Tide supra, p. 99 ; Rogers v. 
 Pitcher, 6 Taun. 202. This seems 
 to be correct, on the ground, also, 
 that the inquisition is final and 
 conclusive between the parties. 
 See Martin v. Smith, 27 L. J. Ex. 
 317. 
 
 (o) He must, of course, prove 
 his title, which can be done by pro- 
 ducing the record, or an office copy 
 thereof, with the return duly filed. 
 
 See Ramsbottom v. Buckhurst, 2 M. 
 & S. 565. The tenant can dispute 
 this title if he has any grounds; 
 for example, by showing that the 
 inquisition is false. Harris v. 
 Soaker, 4 Bing. 96 ; Harris v. Pugh, 
 4 Bing. 335. 
 
 (p) Bishop of BristoVs case, 3 
 Leo. 113. Attornment is not neces- 
 sary. Lloyd v. Davies, 2 Exch. 
 103. 
 
 (q) Sharp v. Key, 8 M. & W. 
 379.
 
 THE AVRIT OF ELEGIT. 175 
 
 shall discuss) the execution debtor's estate must he a legal chap. v. 
 estate. 8ec - 2 - 
 
 The elegit creditor, similarly to every other execution Prior equit- 
 creditor, takes subject to any equitable interest in the lands th^i^CTso^ 1 
 which may exist in any other person. The elegit is no 
 bar to such interest. Where, therefore, lands, whereof 
 the legal property is in the debtor, have been equitably 
 mortgaged, the mortgagee may take proceedings to pro- 
 tect his interest, and will, as to his charge, rank before the 
 elegit creditor (r) . The latter, since he is not a purchaser, 
 will be postponed, whether he has or has not had notice of 
 the equitable mortgage before his execution (). 
 
 The rights of the parties, where a claimant alleges an 
 equitable estate against the tenant by elegit, cannot be 
 worked out in the action in which the elegit has issued. 
 Separate proceedings at the suit of the elegit creditor, or 
 of the equitable mortgagees, must be taken, in the form of 
 an action either for redemption or foreclosure, as the case 
 may demand. Such proceedings are commenced by ori- 
 ginating summons (t), and a sale may be obtained of the 
 property in question under and subject to the provisions of 
 sect. 25 of the Conveyancing Act, 1881 (u). We shall, in 
 a subsequent Chapter, discuss, to the extent necessary for 
 our subject, this section of the Conveyancing Act, and the 
 creditor's remedy thereunder (x). 
 
 To return to the consideration of the different estates 
 which are subject to the writ. The execution debtor may 
 have in the land any of the numerous estates or interests 
 known to the law, and this part of the subject will be best 
 discussed under an enumeration of those estates. 
 
 Estates in Fee. The debtor's interest only can be taken. Estates in fee. 
 
 (r) Whitworth\.Gauffain,3'H.a.ie, (*) Brace v. Duchess of Marl- 
 
 416. See Hele v. Bexky, 17 Beav. borough, 2 P. Wins. 492. 
 14; Potts v. Warwick $ Birmingham (t) O. LV. r. 5 a. 
 
 Canal Navigation, Kay, 142; Stevens (u) 44 & 45 Viet. c. 41. 
 
 v. Mid Hants Ry. Co., L. R. 8 Ch. (*) Vide infra, p. 301. 
 
 1064.
 
 176 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Estates tail. 
 
 Effect of 1 & 
 2 Viet. c. 110, 
 s. 13. 
 
 Life estates. 
 
 Settled Land 
 Act, 1882. 
 
 If, therefore, the land is let to tenants it is, as we have 
 seen, delivered subject to their tenancies (y). Land which 
 is held for a public purpose without a profit to the public 
 body of persons holding it, is subject to execution by clegit, 
 wherever judgment can be signed against that public 
 body (s). 
 
 Estates Tail. Where the execution debtor is tenant in 
 tail the lands can be delivered. Before the statute 1 & 
 2 Viet. c. 110, the issue in tail, claiming per donation, 
 could, as against the creditor, and after the death of the 
 tenant in tail, avoid the execution (). But since that 
 statute it appears to be the better opinion that where there 
 is a protector, the creditor can take under an elegit the 
 same estate as the debtor could dispose of without the 
 protector's consent, viz., a base fee. Where there is no 
 protector, the creditor may, probably, take as if it were an 
 estate in fee, the debtor having a disposing power without 
 the assent of any other person. By sect. 13, the issue and 
 remaindermen are expressly bound (b}. 
 
 Estates fur Life. The interest of the execution debtor 
 can here also be delivered. It would appear that the effect 
 of delivering in execution of an estate for life has not been 
 fully considered in the powers conferred on a tenant for 
 life by the Settled Land Act, 1882. From the provisions 
 of that Act, it seems that, notwithstanding the delivery by 
 the sheriff, and even actual possession by the judgment 
 
 (y] Reasoning of Bay ley, J., in 
 Doe d. Phillips v. Evans, 1 Cr. & M. 
 p. 455. 
 
 (z) For example, a dock or water- 
 works company. Mertey Docks 
 Trustees v. Gibbs, L. R. 1 H. L. 
 93 ; Worral Watenvorks Co. v. 
 Lloyd, L. R. 1 C. P. 719. As to 
 the property of a union, see Att.- 
 Gen. v. Wilkinson, 28 L. J. Ch. 
 
 392. 
 
 (a) Ashbtirnham v. St. John, Cro. 
 Jac. 83. The case was on an ex- 
 tent under a statute. 
 
 (b) Prid. Judgments, p. 66. But 
 it is at least arguable that this 
 statement of the law is incorrect. 
 The subject is referred to again 
 infra, in the Chapter on Equitable 
 Execution.
 
 THE WRIT OF ELEG1T. 177 
 
 creditor, the tenant for life can sell the land the subject of Chap. v. 
 the execution (c) ; for the execution creditor is protected Sec - 2 - 
 only, if at all, by sect. 50, sub-sect. 3, and then has to be 
 brought within the words " assignee for value of the estate 
 or interest of the tenant for life " (d). If such a point 
 were ever raised for discussion, it would be necessary, how- 
 ever, to consider the effect of sect. 11 of 1 & 2 Yict. c. 110, 
 and (the land having been actually delivered in execution) 
 of sect. 1 of 27 & 28 Yict. c. 112. From this point of view it 
 would be submitted to be a reasonable construction of those 
 enactments that a purchaser is bound to discharge every 
 incumbrance of such a nature on the land. 
 
 An estate pur autre vie is on principle extendible under Estate pur 
 the writ. It is a matter not likely to be of importance a ' 
 whether it is seizable as real or as personal estate. It is 
 submitted that it should be taken as real estate, and that, 
 therefore, the creditor should only take in it that limited 
 interest, or conditional estate, which he takes in all free- 
 holds, and not the absolute property, as in the case of 
 chattel interests. 
 
 A reversion on a lease for lives or for years can be Reversion, 
 taken (e). The reason given by Gilbert, C. B., is that the 
 intent of the writ extends to whatever lands and tenements 
 were actually vested in the defendant, and reversions are 
 comprised under the term terrce, since they are lands re- 
 turning to the defendant when the particular estate 
 ceases (/). On the reversion being delivered to him under 
 
 (c) 45 & 46 Viet. c. 38, B. 2, therefore, it is termed seek ; but a 
 sub-ss. (5), (7). reversion has services incident, and 
 
 (d) The word "assignment" in those may be extended, and, by 
 sect. 50 has a wide interpretation consequence, the reversion when it 
 given to it (sub-s. (4)) ; but, bearing comes into possession." Vin. Abr. 
 in mind that an execution creditor tit. Statute Merchant, P. 15, in 
 is not a purchaser for value (vide margin. The return, to be formal, 
 infra, p. 324), it is doubtful whether must not state that "a rent" has 
 an execution creditor comes within been delivered, but the reversion, 
 the protection of the section. Walsal v. Heath, Cro. Eliz. 656. 
 
 (e) " For, to a remainder are no (/) Gilbert on Executions, 39. 
 services due nor incident, and, 
 
 E. N
 
 178 
 
 CONCERNING EXECUTION OX JUDGMENTS, ETC. 
 
 Book I. 
 
 Remainder. 
 
 the inquisition, lie becomes entitled, ipso facto, to sue and 
 distrain for the rent as the judgment debtor might have 
 done (h). A remainder cannot, however, be taken in exe- 
 cution under an elegit, either by virtue of the Statute of 
 Westminster II. (?), or by virtue of sect. 11 of 1 & 2 
 Yict. c. 110 (/). 
 
 Joint estates. Joint Tenancy. -It is said, " an estate in joint tenancy 
 cannot be extended after the death of the joint tenant who 
 acknowledged the judgment " (&), which evidently means 
 that a joint tenant's estate cannot be extended after his 
 death ; for, jus accrescendi prcefertur oneribus. If during the 
 life of a joint tenant the land is extended, it operates as a 
 severance of the joint tenancy, or at all events creates an 
 estate in the creditor until his debt be levied (/). The 
 fourth part of a house was, according to a very old autho- 
 rity, taken under an elegit (m) . The return cannot, of 
 course, set out the metes and bounds of the elegit debtor's 
 interest, for the jury have no right so to do (). The 
 creditor must resort to an action of partition, to which he 
 and all the joint tenants would be parties. 
 
 An estate in coparcenary, or in common, may be ex- 
 tended (&) ; and the same remarks apply as to the remedy 
 of the execution creditor as were made in respect of estates 
 in joint tenancy. 
 
 Debtor's disposing Power over Lands. Now, as we have 
 seen by sect. 11, above set forth, all lands, &c., over which 
 
 Coparcenary, 
 01 in common 
 
 Disposing 
 power of 
 sect. 11 of 
 
 (h) Bishop of Bristol' s case, 3 Leo. 
 113 ; Lloyd v. Davies, 2 Exch. 103. 
 
 (i) See note (e), supra. 
 
 (j) For the words there are 
 ' ' seised or possessed, ' ' and ' ' a man 
 cannot be seised or possessed of a 
 remainder." Ee South, 9 Ch. 369 ; 
 see note (e), supra. The real 
 remedy against a remainder is by 
 action ; it is charged under sect. 13 
 of 1 & 2 Viet. c. 112. Vide infra, 
 p. 309. 
 
 (k) 2 Cru. Dig. 54. 
 
 (0 Gilb. on Ex. 41, 42. 
 
 (m) Bro. tit. Elegit, pi. 13. 
 
 () For Forms of return, see 
 Appendix, infra, No. 49. The 
 former necessity - (before 1 & 2 
 Viet. c. 110) of setting out metes 
 and bounds of the lands delivered, 
 being only a moiety of that in the 
 debtor's possession, arose from the 
 Stat. Elegit, and authority was 
 thereby given for the return. 
 Fenny v. Durrani, 1 B. & Aid. 
 40 ; Doc d. Roberts v. Parry, 2 D. 
 & L. 430.
 
 THE WRIT OF ELEGIT. 179 
 
 the debtor " shall at the time of entering up the judgment, Chap. v. 
 or at any time afterwards, have any disposing power, which 8ec - 2 - 
 he might, without the assent of any other person, exercise l & 2 Viet, 
 for his own benefit," are subjected to the writ. 
 
 These words have not been the subject of judicial dis- 
 cussion upon questions arising upon the execution of writs 
 of elegit. The same words, however, occur in sect. 13 of 
 the Act 1 & 2 Viet. c. 110, which section gives an equit- 
 able charge over the debtor's lands, and the effect of which 
 we shall consider in the Chapter on Equitable Execution. 
 
 According to the decisions under that section, the words Construction 
 cover property over which the debtor had a right at law ?5 d ^ or ^ n 
 or in equity to consider himself the beneficial owner (0). power" in 
 The power of defeating a voluntary settlement by a sub- c _ 110j i 3 
 sequent sale for valuable consideration is not, therefore, a 
 "disposing power" within this section (p). Again, the 
 words " for his own benefit " have been construed as mean- 
 ing " not as trustee " (q). It has also been held in Ireland 
 that a married woman, having property settled to her 
 separate use, with no restraint on anticipation, has no such 
 disposing power as is contemplated by the section (r). It 
 is suggested in a learned work that the words would pre- 
 vent an ekgit issued against a tenant in tail being dis- 
 puted by the issue in tail (s). 
 
 Notwithstanding these dicta and opinions, it is difficult 
 to see what the effect of delivering under an elegit land 
 subject to a power for example, to a general power of 
 appointment would be. The statute would, it is pre- 
 sumed, be construed to prevent a tenant by elegit being 
 defeated by an execution of the power, subsequently to the 
 delivery to him of the land (t). 
 
 (o) Kinderleyv.Jervis,22~Bea,v.l. (s) Prid. Judgments, 66. 
 
 (p) eavan\. Lord Oxford, 6 De (t) Before 1 & 2 Viet. c. 110, 
 
 G. M. & G. 507, p. 522. both at law and in equity, the exe- 
 
 (q) Arnold v. Mayor of Gravesend, cution of a general power of ap- 
 
 2 K. & J. 574, p. 584. pointment by the debtor before the 
 
 (r) Digby v. Irvine, 6 Ir. Eq. delivery of the land to the creditor, 
 
 Rep 149. even though after judgment, de- 
 
 N2
 
 180 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. Hitherto, we have seen that the estate seizable under 
 
 Application of ^ ne statutes is a legal estate only, save and except the last- 
 
 equit- mentioned case, where the debtor might have no estate in 
 under Statute land whatsoever, and yet be the appointor under such a 
 of Frauds. power as is intended. The operation of the writ is not, 
 however, confined wholly to legal interests in land. By 
 Statute of the 10th section of the Statute of Frauds (u) it is enacted : 
 "that, from the date therein mentioned, it shall and may be 
 lawful for every sheriff, or other officer to whom any writ 
 or precept is or shall be directed, at the suit of any person 
 or persons, of, for, and upon any judgment, statute, or 
 recognizance hereafter to be made or had, to do, make, and 
 deliver execution unto the party in that behalf suing, of 
 all such lands, tenements, rectories, tithes, rents, and here- 
 ditaments, as any other person or persons be, in any 
 manner of wise, seised or possessed, or hereafter shall be 
 seised or possessed, in trust for him against whom execu- 
 tion is so sued, like as the sheriff or other officer might or 
 ought to have done, if the said party against whom execu- 
 tion hereafter shall be so sued, had been seised of such 
 lands, tenements, rectories, tithes, rents, or other heredita- 
 ments of such estate as they be seised of in trust for him 
 at the time of the said execution sued, which lands, tene- 
 ments, rectories, tithes, rents, and other hereditaments, by 
 force and virtue of such execution, shall accordingly be 
 held and enjoyed, freed and discharged from all incum- 
 brances of such person or persons as shall be so seised or 
 possessed in trust for the person against whom such exe- 
 cution shall be sued "(a?). 
 
 feated his title. Doe d. Wigan v. (x) The remainder of the section 
 
 Jones, 10 B. & C. 459 ; Skeeles v. relates to cases of death of cestui 
 
 Shearly, 3 My. & Cr. 112 ; Lang- que trust, and makes his equitable 
 
 ton v. Horton, 1 Hare, 549. The interests assets by descent. Such 
 
 reasoning of those cases would interests as were under this statute 
 
 apply equally where the execution seizable by the sheriff became, ipso 
 
 had been actually completed by facto, assets at law in the hands of 
 
 delivery and possession. the heir. Plunkett \. Penson, 2 
 
 (u) 29 Car. II. c. 3. Atk. 290, p. 293 ; King v. Ballett, 
 
 2 Vern. 248.
 
 THE WRIT OF ELEGIT. 181 
 
 The words of sect. 11 of 1 & 2 Viet. c. 110, " or any Chap. v. 
 person in trust for him," and their context, impose no Sec - 2 - 
 limitation as to the kind of equitable estate which can be Sect - n .f 
 delivered under an elegit. From the terms of these two c . no, alfto 
 enactments alone, it would appear that legal and equitable trust e8tates - 
 estates of all kinds are equally subject to the writ. Such, 
 however, is not the case. Limitations have been placed 
 upon the natural construction above suggested, for the 
 reason that the sheriff has no available means for 
 ascertaining the existence of any but the simplest equit- 
 able estate (y). In the first place, the trust must be an Trust must be 
 express trust. The inquest could not inquire into the ex P ress - 
 nature of any implied or resulting trust, nor give a verdict 
 thereon. Again, where there is a mortgage upon any Equity of 
 interest in land, and the execution debtor is the owner of n 3m P tlon - 
 the equity of redemption, his interest cannot be seized 
 under an elegit (z). Where the mortgage is made by a 
 term of years, the debtor's reversion thereupon, as upon 
 any other term of years, can be taken (a) . 
 
 It is said, generally, that the 10th section extends only Sect. 10 ex- 
 to a trust of land in fee (b) ; but the authority given for tn a n mere"* 
 this does not warrant the proposition (c). There seems no trusi ^ fee - 
 
 (y) Scott v. Scholey, 8 East, p. (z) Lyster Y. Dolland, 3 Br. C. C. 
 
 485. Since the old action of eject- 478, better reported 1 Ves. jun. 
 
 ment has been replaced by the 431 ; Plunkett v. Penson, 2 Atk. 
 
 action for recovery of land (as to p. 292. See Scott v. Scholey, 8 
 
 which vide supra, p. 98), an action East, 467 ; Hatton v. Hay wood, 9 
 
 may doubtless be always brought Ch. 229. After an elegit was issued, 
 
 npon the inquisition and return; and nihil returned, the creditor 
 
 but formerly the delivery under might bring his bill for redemption. 
 
 elegit of any equitable interest must Vide infra, p. 308. On consent 
 
 have given rise to difficulty. The of the mortgagee the Court has 
 
 sheriff does not deliver actual pos- ordered a sale. The King v. De la 
 
 session, and no ejectment could be Motte, Forr. 162. 
 
 brought in respect of an equitable (a) Mayor of Poole v. Whitt, 15 
 
 estate. See the point raised in Doe M. & "W. 571. See Doe d. Phillips 
 
 d. Hull v. Greenhill, 4 B. & Aid. v. Evans, 1 Cr. & M. 450. 
 
 684. The execution creditor, if he (*) 2 Saund. 11 a. 
 
 had any remedy in such a case, (c) King v. Ballett, 2 Vern. 248. 
 must have sought relief in equity.
 
 182 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Trust of a 
 term cannot 
 be taken. 
 
 Judicial con- 
 struction of 
 Beet. 10. 
 
 reason why a simple trust estate for life, for example, 
 should not be subject to the writ as well as a trust in 
 fee (d). 
 
 Another limitation placed upon the natural meaning of 
 the statutes is, that the trust of a term cannot be taken ; 
 but this is not by any means clear (e) . The rules on this 
 point apply equally to writs of elegit and/./. (/). 
 
 A fairly comprehensible statement is, it is submitted, 
 that of Abbott, 0. J., in Doe d. Hull v. Greenhill(g). 
 " This statute " (Statute of Frauds) " made a change in 
 the common law, and, up to a certain extent at least, made 
 a trust the subject of enquiry and cognizance in a legal 
 proceeding. We think that the trust that is to be thus 
 treated must be a clear and simple trust for the benefit of 
 the debtor ; the object of the statute appearing to us to be 
 merely to remove the technical objection arising from the 
 interest in land being legally vested in another person, 
 where it is so vested for the benefit of the debtor." 
 Another view is that of Vice-Chancellor Sir John Leach : 
 " A judgment creditor has at law, by the Statute of 
 Frauds, execution against the equitable freehold estate of 
 the debtor in the hands of his trustee, provided the debtor 
 has the whole beneficial interest ; but if he has left a 
 
 (d) Hele v. Bexley, 17 Beav. 14. 
 Where the life estate was an equit- 
 able interest, subject to a condition, 
 in leaseholds, it was said that the 
 sheriff's return to an elegit would 
 have been nil. In re Duke of New- 
 castle, L. R. 8 Eq. 700. The 
 reasoning on the construction of 
 these statutes appears unsatisfac- 
 tory, probably because of the 
 greater convenience of the remedy 
 in equity. 
 
 (e) Scott v. Scholey, 8 East, 467, 
 case under a fi. fa. However, the 
 judges, in Doe d. Hull v. Greenhill, 
 4 B. & Aid. 684, do not appear to 
 have seen the objection, if objec- 
 
 tion it be, that the trust of a term 
 could not be taken. The language 
 of the V.-C., in Forth, v. Duke of 
 Norfolk, 4 Mad. p. 504, seems to 
 exclude from the subjects liable to 
 execution, under the elegit, any 
 equitable interest, except in free- 
 holds. And see Gore v. Bowser, 
 24 L. J. Ch. 315, 440. Doe d. 
 Phillips v. Evans, 1 Cr. & M. 450, 
 appears to be a distinct authority 
 that a term in trust to attend the 
 inheritance can be seized under an 
 elegit. See, also, Hele v. Bexley, 
 17 Beav. 14. 
 
 (/) Vide supra, pp. 129, 136. 
 
 (y) 4 B. & Aid. p. 690.
 
 THE WRIT OF ELEG1T. 183 
 
 partial interest only in his equitable freehold estate, the Chap. v. 
 judgment creditor has no execution at law, though he 
 may come into a Court of equity, and claim there the 
 same satisfaction out of the equitable interest as he would 
 be entitled to at law if it were legal" (A). In any case it 
 seems clear that there are no legal means to perfect the 
 execution if levied over an equitable interest. The creditor 
 must have recourse to the equitable jurisdiction of the 
 High Court. 
 
 Chattel interests in land are seizable under an elegit. Terms of 
 The effect, however, of their delivery under this writ to yea 
 the execution creditor is so different from the delivery of 
 freehold estates, that the consideration thereof is post- 
 poned for a few pages. 
 
 Copyholds and Lands of Customary Tenure. Before 1 & Copyholds. 
 2 Viet. c. 110, these were not subject to execution at 
 all (/). The effect under the Act seems peculiar, for the 
 creditor is made liable for the fines, &c. recoverable in the 
 ordinary course from the tenant. It does not appear that 
 the execution operates in any way as a conveyance to the 
 creditor. He is not apparently admitted, for, if he were, 
 the estate he would hold would be probably inconsistent 
 with the custom of the manor. 
 
 The Estate taken by the Execution Creditor. "Where the Estate taken 
 writ has been executed by inquisition and return, the 
 creditor becomes entitled to an estate in his debtor's land. 
 This estate is expressed in the words of the writ : " To 
 hold the said lands, tenements, rectories, tithes, rents and 
 hereditaments respectively, according to the nature and 
 tenure thereof, to him and to his assigns, until the said two 
 several sums of and , together with interest 
 
 as aforesaid, shall have been levied." 
 
 (A) Forth v. Duke of Norfolk, 4 Booker, 4 Bing. 96. 
 
 Mad. p. 504. For an example of (i) Via. Abr. Copyhold (O. e.), 
 
 the kind of equitable interest which pi. 6 ; 2 Eq. Ca. Abr. 226, pi. 6. 
 is not deliverable, see Harris v.
 
 184 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Basis of cre- 
 ditor's estate. 
 
 Conditional 
 estate. 
 
 Length of 
 time for which 
 estate con- 
 tinues. 
 
 The estate taken by the execution creditor is based upon 
 the record, i. e., the judgment, elegit and return of the 
 inquisition (k} . Blackstone classifies the estate as a fourth 
 species of conditional estate created by operation of law (/). 
 It is exceptional altogether, and is more fully described by 
 Lord Coke : " These tenants have uncertain interests in 
 lands and tenements, and yet they have but chattels, and 
 no freeholds, because, although they may hold an estate of 
 inheritance or for life ut liberum tenementum (m) until their 
 debt be paid, yet it shall go to their executors, for ut is 
 similitudinary ; and though to recover their estates they 
 shall have the same remedy as a tenant of the freehold 
 shall have, yet it is but the similitude of a freehold, and 
 nullum simile est idem" (n). The estate of the creditor 
 being a conditional estate, the debtor has no reversion (o). 
 The estate is, of course, subject to the incidents of tenure 
 of the debtor's estate. 
 
 The land being delivered to the creditor at an appraised 
 annual value, and the period at which his estate begins to 
 run being fixed, it can always be ascertained for what 
 length of time that estate will continue, and the debtor, 
 at the expiration thereof, can get back his land, notwith- 
 standing that, by any means for which he, the creditor, is 
 not responsible, the amount has not, in fact, been levied (p). 
 
 (k) Garraway v. Harrington, Cro. 
 Jac. 569, result of resolutions in 
 Fulwood's case, 4 Rep. 67 a. See a 
 strange effect of this, of archaeolo- 
 gical interest only, 2 Wms. Saund. 
 p. 261. 
 
 (1) 2 Comrn. ed. 1876, 136. 
 
 (m) These words are no longer 
 in the writ. 
 
 (n) 2 Bl. Oomm. ed. 1876, p. 137. 
 
 (o) Carter v. Hughes, 2 H. & N. 
 714. 
 
 (p) The words in the writ "to 
 hold the said lands, &c., until the 
 two several sums, &c. shall have 
 
 been levied," would doubtless be 
 read as strictly as their counter- 
 part "quousgue debitum fuerit kva- 
 tum" and on the expiration of the 
 definite term so ascertained, the 
 debtor could recover the land. Sir 
 Andrew Corbet's case, 4 Rep. 82 a, 
 from which respectable authority 
 it further appears that ' ' if tenant 
 by elegit is interrupted in taking 
 the profits of the land by reason of 
 war, he shall not hold over, but it 
 shall be to the disadvantage of the 
 tenant by elegit. ." See 2 Wms. 
 Saund. 59.
 
 THE WRIT OF ELEGIT. 
 
 185 
 
 The remedy of the debtor at the expiration of this fixed Chap. v. 
 period is by action of ejectment, to which there is no Sec - 2 - 
 defence except act of the debtor (q) . 
 
 The amount remaining due under the writ can at any Accounting 
 time be ascertained. The execution debtor may issue for debtorand 
 that purpose a summons in the action. On the summons ^git creditor 
 an order will be made that possession be re-delivered to 
 the debtor (r) on payment of the amount found to be 
 due (s). An account is taken on the basis that the execu- 
 tion creditor is bound to account as if he were a mortgagee 
 in possession (f) . This renders him liable, and he will 
 therefore be charged with such sums as he might, but for 
 his wilful default, have received (u). 
 
 The tenant by elegit is now allowed, by the terms of the Interest, 
 writ itself, which is directed to the levying both of the judg- 
 ment debt and costs, interest on both these sums ; formerly, 
 by the doctrines of equity (#), he was entitled to levy or 
 
 (q) Tidd'sPr. 1037. The debtor 
 could, and apparently can still, pro- 
 ceed at any time by action of scire 
 facias rehabendum terram or ad com- 
 putandum. In this action he could 
 tender in Court the sum remaining 
 due on the judgment. 2 Roll. Abr. 
 482, tit. I. ; 2 Wms. Saund. 261. 
 This is one of the few instances 
 where a right to a scire facias now 
 exists, but the remedy is obsolete 
 by reason of the modern system 
 of parties accounting in chambers ; 
 q. v. infra. 
 
 (r) Principle stated in Yates v. 
 Hambly, 2 Atk. p. 363. 
 
 () Forms of summons and order 
 for accounts in Appendix, infra, 
 Nos. 50, 51. The remedy of the 
 debtor was formerly three-fold ; 
 a sci. fa., as has been mentioned 
 in a former note ; a rule re- 
 ferring to the master to take an 
 account (Price v. Varnetj, 3 B. & C. 
 733) ; or, for an account in equity. 
 
 Tidd's Pr. 1037. 
 
 (t) Sect. 11 of 1 & 2 Viet. c. 110. 
 Before that statute the elegit credi- 
 tor was always bound to account 
 in equity. Hale v. Thomas, 1 Vern. 
 349; Godfrey v. Watson, 3 Atk. 
 517. The common law Courts 
 would refuse a reference to a mas- 
 ter where complex matters of ac- 
 count were brought into question, 
 thus forcing the parties into equity. 
 O'Brien v. Goold, Ale. & Na. 41. 
 
 () Bull v. Faulkner, 1 De G. & 
 S. 685, where see form of order to 
 account. In the report of this case 
 (12 Jur. 33) it is said that search 
 had been made for precedent of 
 such a decree before the Act of 1 & 2 
 Viet. c. 110; but none such were 
 found. In fact, before that statute, 
 there is a case in Ireland where the 
 decree being asked for was refused. 
 Solton v. Lloyd, 1 Mol. 30. 
 
 (x) Godfrey v. Watson, 3 Atk. 517.
 
 186 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Creditor in 
 position of 
 mortgagee. 
 
 Costs. 
 
 Usual ap- 
 praisement. 
 
 Terms of 
 
 years. 
 
 obtain in account interest on his judgment debt. The 
 elegit creditor is, for the purposes of his security obtained 
 on his judgment, in the same position as a mortgagee 
 under a mortgage containing similar terms to those of the 
 writ (y). It is hardly necessary to add that, irrespective of 
 the express provision now made by the terms of the writ 
 itself, the elegit creditor can, where the account is being 
 taken against him, add his costs to his judgment debt, 
 just as can a mortgagee in possession (z). The lands are 
 usually appraised by the jury at a sum below their value. 
 
 Chattel Interests of the Execution Creditor in Land. 
 When the sheriff enforces the writ against land, whereof 
 the debtor is lessee for years, the effect is entirely different 
 from what it is when the land is freehold. For the sheriff 
 may, under the statute, either extend a term of years, that 
 is, may deliver a moiety thereof (now the whole) to the 
 plaintiff or conusee, or sell the whole term, as part of the 
 personal estate, to the plaintiff, at a gross price to be ascer- 
 tained by the jury (a). It is thus at the election of the 
 sheriff, who acts on the suggestion of the execution creditor, 
 either to extend or to sell a lease, so long as it remains in 
 Creditor abso- the debtor's hands (b}. The creditor to whom a term is thus 
 sold or assigned (c) becomes the absolute owner of it (rf), 
 at the sum at which it has been appraised. He is not 
 liable in such a case to account to anyone, certainly not at 
 law, nor, on principle, can he be in equity. Where, how- 
 ever, a judgment was reversed after a term had in this 
 
 (y) See Williams v. Price, 1 S. & 
 S. 581 ; Mayer v. Murray, 8 Ch. D. 
 424. 
 
 (z) Yates v. Hambly, 2 Atk. 360. 
 
 (a) 2 Saund. 68 g. A term of 
 years, in trust to attend the in- 
 heritance, can be seized. Doe d. 
 Phillips v. Evans, 1 Cr. & M. 450. 
 Sect. 146, Bankruptcy Act, 1883, 
 does not prevent the elegit extend- 
 
 ing to terms of years. Richardson 
 v. Webb, 1 Mor. B. R. 40. 
 
 (b) Fketwood'' s case, 8 Rep. 171 a. 
 
 (c) It is submitted that in this 
 case the assignment is the filed 
 return of the inquisition ; that is, 
 it is an assignment "of record." 
 
 (d) Comyn v. Erandlyn, Moore, 
 873.
 
 THE WRIT OF ELEGIT. 187 
 
 manner been transferred to the plaintiff, a writ of restitu- Chap. v. 
 
 tion was awarded as between the parties to that action, the _ 
 
 sale being no sale (e). Writ of resti- 
 
 The inquisition and return form the basis of the ekgit reVersaTof 
 creditor's title, so that where the jury found that the J^g***- 
 debtor was possessed of one term, which the sheriff sold 
 to the creditor, the sale was held void, although the debtor 
 was possessed of another and different term (/). 
 
 We have already seen that the extent to which equitable Equitable 
 interests in leaseholds are seizable in execution by writ is leaseholds' 1 
 doubtful (ff ) ; and, in deference to such authority as 
 exists, it would appear wise for the creditor to proceed to 
 his equitable remedy. 
 
 The parenthetical directions given in the form to insert Certificate of 
 the date of certificate of taxation are not reliable. The 
 execution creditor can, on signing judgment (#), imme- 
 diately issue a writ of elegit for the amount thereof, and 
 need not wait for the certificate of taxation ; for, as we have 
 seen, he is entitled, provided he does so within eight days 
 after the first writ, to issue a second writ for the amount 
 of his costs (A). 
 
 (e) Goodyere \. Inee, Cro. Jac. (ff} Vide supra, pp. 129, 136; 
 
 246, where the essential difference Scott v. Scholey, 8 East, 467 ; Gore 
 
 between a sale to a stranger under v. Bowser, 24 L. J. Ch. 315, 440. 
 afi. fa., and a delivery at an ap- (ff) The words " entering up 
 
 praised value under ekgit, is men- judgment" in the 1 & 2 Viet, 
 
 tioned. Note to Doe d. Emmett v. c. 110, mean signing judgment. 
 
 Thorn, 1 M. & S. p. 427. Fisher v. Dudding, 3 Man. & Gr. 
 
 (/) Palmer's case, 4 Hep. 74 a ; 238. 
 
 S. C., sub turn., Palmer v. Hum- (A) 0. XLII. r. 18, supra, 
 
 phrey, Cro. Eliz. 584. p. 109.
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 What lands of 
 taken* t0 be 
 
 Construction 
 
 as to 
 being ex- 
 
 irrespective of 
 when ac- 
 
 quired. 
 
 Registration 
 1 s< 
 
 SECT. 3. THE EFFECT OF CERTAIN STATUTES ON THE 
 EIGHT OF JUDGMENT CREDITORS WITH RESPECT TO 
 LAND. 
 
 Taking up the words of the writ from the place where 
 they describe what kind of lands the sheriff is authorized 
 to seize, they follow on : " As the said C. D., or any 
 person or persons in trust for him, was or were seised or 
 possessed of on the said day of [the date of the 
 
 certificate of taxation^, or at any time afterwards, or over 
 which the said C. D. on the said day of [the 
 
 date of the certificate of taxation^ or at any time afterwards, 
 had any disposing power, &c." 
 
 The somewhat harsh (i} construction placed upon the 
 Stat. Elegit, and the consequent terms of sect. 11 of 
 1 & 2 Viet. c. 110, with reference to the estate which 
 could be taken under the writ, rendered liable to execution 
 all lands which the debtor had at the time of the judg- 
 ment. They were liable to be seized, notwithstanding 
 that they had been alienated at the time of execution (/;). 
 Lands purchased after the date of the judgment, whether 
 the debtor had or had not alienated them at the date of 
 execution, were also liable in the same way (/). 
 
 This necessarily rendered the title of purchasers most 
 precarious, as an unsatisfied judgment, in existence at the 
 date of the conveyance to them, might always be levied 
 against the land. A number of statutes have at different 
 times been passed to form and regulate a system of 
 registration of judgments for the protection of purchasers, 
 
 (i) Williams' Real Property, 
 15th ed. 109. 
 
 (A) Lilting ston's case, 7 Rep. 39 a. 
 
 (I) Sir John de Moleyn's case, 
 Y. B. 30 Ed. iii. 24 a ; 1 Roll. Abr. 
 892, pi. 14 and 16. A judgment 
 was said to bind (2 Cru. Dig. 49), 
 or to become a lien upon freehold 
 lands ; but is not a charge thereon 
 so as to enable the creditor to buy 
 
 in first mortgage and tack. Brace 
 v. Duchess of Marlborough, 2 P. 
 Wms. 492; 3 Prest. Abstr. 323. 
 The phrase "general lien" was 
 used. Prid. Judgm. 9, and Brett, 
 L. J., suggests that the best phrase 
 was "a sort of general lien." 
 Anglo-Italian Bank v. Dames, 9 
 Ch. D. p. 289.
 
 THE WRIT OF ELEGIT. 189 
 
 mortgagees and creditors. With these in this place we chap. v. 
 
 have but little to do. The registration, or non-regis- Sec - 8 - 
 
 tration of a judgment never affected the position of the 
 
 execution creditor who had actually seized the lands of 
 
 his debtor (m). The delivery of the land to him was a 
 
 conveyance to him, which, when once completed, the 
 
 owner thereof could not displace by any act of his own. 
 
 If. however, the judgment were not registered in com- Effect of non- 
 
 pliance with the various enactments, the judgment creditor 
 
 stood the risk, until the execution was actually made, of 
 
 the intervening title of a purchaser or mortgagee from the 
 
 debtor. 
 
 This was the case, notwithstanding the terms of sect. 11, 
 and of the writ above referred to, which apparently em- 
 power the sheriff to seize all lands, at the signing of the 
 judgment or afterwards, the property of the debtor. 
 
 It has now been enacted, that no judgment, statute, or 27 & 28 Viet, 
 recognizance to be entered up after the date of the Act c> 112> 8 " l ' 
 (29th July, 1864), shall affect any land (of whatever 
 tenure) until such land shall have been actually delivered 
 in execution by virtue of a writ of elegit or other legal 
 authority, in pursuance of such judgment, statute, or 
 recognizance (ri). 
 
 The joint effect of this enactment upon sect. 11, above Effect of this 
 quoted, and the rights of the creditor under a judgment, Act - 
 are somewhat uncertain and undetermined. It is clear 
 that, before 29th July, 1864, an execution creditor claiming 
 under his judgment could be defeated only by purchasers, 
 mortgagees, or creditors subsequently obtaining judgment 
 and registering the same, or levying execution. 
 
 Upon one construction of these conflicting enactments it One construc- 
 would appear that now it is actual execution alone which pi^gd upon 
 affects land, and that, therefore, the words of the writ, and J*k 2 8Vict 
 of the statute of 1 & 2 Viet. c. 110, s. 11, which we have c . 112. 
 
 (m) The decision in the recent of this conclusion, 
 case of In re Pope, 17 Q. B. D. (n) 27 & 28 Viet. c. 112, e. 1. 
 
 743, may be taken as a recognition
 
 190 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. been discussing, are useless as being practically repealed. 
 Such a construction would place the execution creditor in 
 a much worse position than that in which he formerly was, 
 because his only right to enter upon lands which the debtor 
 had, since the date of the judgment, fraudulently or volun- 
 tarily conveyed to third persons, would depend upon the 
 difficult and abstruse law arising out of the statute 13 Eliz. 
 c. 5. Such a result changes the position of the execution 
 creditor, for the reason that it throws upon him the onus 
 of proving that the conveyance he complains of is bad, 
 whereas, but for sect. 1 of 27 & 28 Viet. c. 112, it was, if 
 voluntary, at any rate of no avail, apart altogether from 
 registration of the judgment. 
 
 The importance of a reliable judicial construction of 
 these two statutes, sect. 11 of 1 & 2 Yict. c. 110, and 
 sect. 1 of 27 & 28 Yict. c. 112, is undeniable from a most 
 practical point of view. Until the subject is cleared of its 
 difficulties, it is impossible to say for certain whether the 
 writ, in its present form, does or does not direct the sheriff 
 to perform a duty at variance with the rights of the execu- 
 tion creditor ; whether, in fact, the mandate of the writ we 
 are discussing is or is not in this particular wholly wrong. 
 This will appear at once if we consider what is the ques- 
 tion to be decided by the jurors on the inquisition. If the 
 inquiry before the jury is " what lands had the debtor at 
 the date of the judgment," it is clear that, notwithstand- 
 ing 27 & 28 Yict. c. 112, the judgment does " affect " land 
 before it has been delivered in execution. This view 
 would appear to be in accordance with the opinion of 
 Brett, J., who seems to think the first section does not 
 limit the jurisdiction of the Court to consider the " sort 
 of general lien " given by the judgment as still subsist- 
 ing (p). The whole question is singularly obscure. 
 
 Kegistration By sect. 1 of 23 & 24 Yict. c. 38, the registration of the 
 
 of judgment 
 
 and writ. ( p ) Anglo-Italian Sank v. Danes, 9 Ch. D. 275, p. 289 ; 47 L. J. Ch. 
 
 833, p. 838.
 
 THE WRIT OF ELEGIT. 191 
 
 judgment and of the writ of execution was rendered neces- Chap. v. 
 sary before the judgment could " affect " any land ; and _ 
 this enactment is amended as to the method of registration 
 (the registration of the judgment being done away with, 
 and the writ being registered thereunder in the name of 
 the person against whom it is issued) by sect. 3 of 27 & 28 
 Yict. c. 112 (q). These enactments have, however, nothing 
 to do with the mere execution on a judgment. 
 
 We shall, in a subsequent Chapter, when we come to deal ' Fhe statu- 
 with the question of the equitable remedies of the judg- given by 
 
 ment creditor, discuss the effect of the statutable charge f 
 given by sect. 13 of 1 & 2 Viet. c. 110, and we reserve the c. no, dis- 
 further discussion of sect. 1 of 27 & 28 Yict. c. 112 till edition 
 then. In the same place we shall endeavour to show the under elegit. 
 effect of sect. 4 of the last-mentioned Act, which enacts 
 that the creditor to whom land shall have been actually 
 delivered in execution, may obtain, by petition to the 
 Chancery Division, an order for the sale of such land. 
 
 The statutes to which we have in this section referred Priority of 
 have particular application and effect in deciding the 
 question of priority between competing creditors who have 
 issued writs of elegit. The sheriff, it is said, must give 
 priority to the one of two writs in his hands, which is on 
 the first judgment in point of date (r). 
 
 Many questions which arise in like case under the writ 
 of fieri facias cannot arise here, for the reason that the 
 elegit creditor, who executes his writ, takes the land in 
 satisfaction of his debt. The debtor's remaining interest 
 or estate in such case is not a tenement within the meaning 
 of the Statute of Westminster II., and cannot be taken 
 
 (q) A contention, based upon the neys v. Burland, 19 "W. E. 148. 
 wording of this section, that the (r) Lord Campbell, C. J., in 
 
 registration of a writ of elegit must Sturgis v. Bishop of London, 1 El. 
 
 precede the delivery in execution & Bl. at p. 554. 
 under it, was disposed of in Champ-
 
 192 
 
 Book I. 
 
 The Bank- 
 ruptcy Act, 
 1883. 
 
 Elegit the 
 safer execu- 
 tion. 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 under a second writ (s) . It has been further decided that, 
 notwithstanding the entering up and registration of the 
 judgment, as required by 1 & 2 Yict. c. 110, and the 
 charge given thereby, writs of elegit rank in the order in 
 which they are delivered to the sheriff (t). 
 
 The effect of the 146th section of the Bankruptcy Act, 
 enacting that the writ of elegit shall not extend to goods, 
 deserves some notice. Before that Act, by issuing an 
 elegit, a creditor obtained in execution both his debtor's 
 lands and goods (11). Now, there is no writ whereby the 
 creditor can do this; he must proceed by two writs, of 
 fi. fa. and of elegit. We have seen that because the writ 
 still depends upon the alternative enactment of the Statute 
 Westminster II., the creditor cannot issue an elegit , first, 
 taking the lands under it, and then proceed to issue a fi. fa. 
 The law is still good that he has exercised his election in 
 taking the land, and with that he must rest satisfied. If 
 he takes the course of issuing a fi. fa. and levying there- 
 under, and after sale finds that he is still deficient, he may 
 issue an elegit against the debtor's land. He will, how- 
 ever, take this course at his risk ; for he has already notice 
 of an act of bankruptcy, viz., the sale under his own writ 
 of fi. fa. (x) ; and the delivery of the land to him may, at 
 any time within three months of the sale, be rendered 
 nugatory by the bankruptcy of the debtor (y). 
 
 The conclusion to be drawn from this is, that against a 
 person having both the legal estate in land and the goods, 
 it is safer to issue an elegit against the land. Once the in- 
 quisition taken, the seizure is effected, and cannot be set 
 aside by the bankruptcy of the debtor. The execution 
 
 (s) Carter v. Hughes, 2 H. & N. 
 719. 
 
 (f) Guest v. Cowbridge Rail. Co., 
 L. R. 6 Eq. 619. 
 
 (u) And became thereby a secured 
 creditor. Ex parte Abbott, Re Gour- 
 
 lay, 15 Ch. D. 447. 
 
 (*) 46 & 47 Viet. c. 52, s. 4. 
 
 (y) A most likely contingency 
 when all his property had been 
 seized.
 
 THE WRIT OF EI.EGIT. 193 
 
 being completed by seizure, is protected against any avail- Chap. v. 
 able act of bankruptcy of which the creditor had not notice, Sec - 8 - 
 and also against a subsequent bankruptcy of the debtor at 
 any time (z). 
 
 It is suggested in a subsequent chapter that the effect of Appointment 
 the elegit before the Bankruptcy Act, 1883, in making the f receiyer - 
 creditor a secured creditor, and seizing both the debtor's 
 lands and goods, may still be in certain cases attained by 
 the appointment of a receiver (a). 
 
 SECT. 4. THE SHERIFF'S BIGHT TO POUNDAGE 
 AND EXPENSES OF EXECUTION COSTS. 
 
 The statute 28 Eliz. c. 4, already discussed, although Poundage on 
 repealed (b), applies, so far as the right to poundage is ***' 
 concerned, to writs of elegit, so that the sheriff has a right 
 to poundage on executing them (c). The statute appears 
 to give poundage upon the debt for which the lands are 
 delivered in execution (d), and a doubt was early entertained 
 as to it (e). However, on a forced construction of the 
 stat. 3 Greo. 1, c. 15, s. 16, which in terms applied only to 
 writs for recovery of land, the sheriff has been held 
 entitled to poundage on the yearly value only (/). 
 
 The fees to which the sheriff is entitled, besides pound- Sheriff's fees, 
 age, were given by the table of fees prepared in pursuance 
 of the stat. 1 Yict. c. 55, which will be found in the 
 Appendix (g). 
 
 The writ of elegit authorises the delivery of the land in Costs. 
 execution for the amount of the judgment and costs 
 
 (z) 46 & 47 Viet. c. 52, s. 45. cution," see Mortimore T. Craya, 3 
 
 () Vide infra, Book III. Chap. I. C. P. D. p. 218. 
 
 sect. 3. (e) Peacock v. Harris, Salk. 331. 
 
 (b) Supra, p. 156. (/) Nash v. Allen, 1 Dav. & If. 
 
 (e) Carter v. Hughes, 2 H. & N. 16 ; Tyson v. Paske, 2 Ld. Raym. 
 
 714. 1212; S. C., Salk. 333. 
 
 (d] As to words " deliver in exe- (g) Infra, Appendix III. p. 471. 
 
 E. O
 
 194 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. thereof only. There is nothing in the writ authorizing 
 ~ the execution creditor to hold the lands for the costs of 
 
 Costs of in- execution. These costs, especially if the inquisition has 
 been lengthy, may be of considerable amount, and the 
 recovery of them a matter of importance. 0. XLII. r. 15, 
 which empowers the party entitled to execution to levy 
 the poundage fees and expenses of execution over and 
 above the sum recovered, only extends to the sheriff's fees, 
 and does not give him a right to recover the costs of the 
 inquisition as between solicitor and client or party and 
 party (g). The execution creditor cannot obtain upon 
 summons an order for taxation of these costs and addition 
 thereof to the judgment debt (h] . It is, perhaps, a question 
 whether those costs were at law recoverable at all (i}. On 
 the principle, however, on which accounts are taken between 
 the execution debtor and the elegit creditor, it is submitted 
 that the lands would not be ordered to be re-delivered until 
 these costs had been provided for (k) . 
 
 Execution The sheriff, immediately he has executed the writ, has 
 
 creditor liable ,1 i , > i- i ij> ji j-i 
 
 for poundao-e. the right to recover his poundage and iees, so that the 
 execution creditor must, if they are demanded, pay him, 
 and then levy them out of the profits of the land. 
 
 (ff) Porter v. Wotton, 28 Sol. Jour. of Gloucester (6 Edw. 1, c. 1). 
 
 548. See 2nd Inst. 288. The doubt is 
 
 (h) Mahon v. Miles, 30 W. R. implied in the judgment, 45 L. T. 
 
 123. p. 541. 
 
 (i) They hardly appear to be (k) Godfrey v. Watson, 3 Atk. 
 
 costs of suit within even the wide 517 ; Tates v. Hambty, 2 Atk. 360. 
 
 interpretation placed on the Statute Vide supra, p. 185.
 
 ( 195 ) 
 
 CHAPTER VI. chap. vi. 
 
 THE WRIT OF DELIVERY. 
 
 WE have seen that by 0. XLII. r. 6, a judgment for the 0. XLII. r. 6. 
 recovery of any property, other than land or money, may 
 be enforced by a writ for delivery of the property. 
 
 At common law the remedy for recovery of a chattel was Judgment in 
 by action of detinue. The judgment was in the form that detinue * 
 the plaintiff do recover from the defendant the said goods, 
 or if the defendant should not render the same to the 
 plaintiff, the value thereof, and also the damages by the 
 plaintiff sustained by reason of the detention thereof. 
 Upon this judgment no execution was issuable for the 
 thing detained, but a writ of distringas was awarded under 
 which the sheriff distrained upon the goods and chattels of 
 the defendant, and so compelled him either to deliver to 
 the plaintiff the thing detained or the value and damages. 
 It was at the defendant's option which course he would 
 take. Instead of a writ of distringas the plaintiff might 
 issue a writ of fi. fa, for the amount of the damages and 
 costs, in which case, if the sum was levied, the judgment was 
 satisfied (a). 
 
 In equity, however, the case was different. Wherever Decree for 
 a chattel had a peculiar value, and wherever the contractual S ^^LC 
 or other relationship between the parties was such that the chattel. 
 Court would entertain a suit with respect to a chattel, a 
 decree might be obtained enjoining its delivery specifically 
 into the hands of the party (). 
 
 (a) See course pursued in Brins- (b) Pusey v. Pusey, 1 Vern. 273 ; 
 
 mead v. Harrison, L. R. 7 C. P. Duke of Somerset v. Cool-son, 3 P. 
 547. Wins. 389 ; and the notes to these 
 
 cases in 1 W. & T. L. C. 6th ed. 9G1.
 
 196 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Writ of 
 delivery under 
 Common Law 
 Procedure 
 Act, 1854, and 
 Mercantile 
 Law Amend- 
 ment Act, 
 1856. 
 
 O. XLVIII. 
 r. 1. 
 
 Assessment of 
 value of 
 goods neces- 
 sary. 
 
 The power of the Courts of common law was extended 
 by sect. 78 of the Common Law Procedure Act, 1854 (c), 
 the short effect of which was to enable judges to order, in 
 an action of detinue, execution to issue for the return of 
 the chattel detained ; but the section did not give them the 
 power to attach the person of the defendant which was 
 incident to the jurisdiction in equity. Further, express 
 statutable jurisdiction has been given to pronounce a judg- 
 ment for delivery of specific goods where they are the 
 subject of a contract to deliver for a price in money, and 
 to order a writ for their recovery to issue on such judg- 
 ment (d). 
 
 Sect. 78 of the Common Law Procedure Act above men- 
 tioned, has been substantially reproduced by 0. XL VIII. 
 r. 1 , which is as follows : " Where it is sought to enforce 
 a judgment or order for the recovery of any property other 
 than land or money by writ of delivery, the Court or a 
 judge may, upon the application of the plaintiff, order that 
 execution shall issue for the delivery of the property with- 
 out giving the defendant the option, if retaining the pro- 
 perty, upon paying the value assessed of any, and that if 
 the property cannot be found, and unless the Court or a 
 judge shall otherwise order, the sheriff shall distrain the 
 defendant by all his lands and chattels in the sheriff's 
 bailiwick till the defendant deliver the property, or, at the 
 option of the plaintiff, that the sheriff cause to be made of 
 the defendant's goods the assessed value, if any, of the 
 property." 
 
 In the execution of this writ the sheriff, if he can find 
 the property, seizes it and delivers it to the plaintiff. 
 
 Before the Judicature Acts, and under the above-men- 
 tioned sect. 78, it was decided that the writ of delivery could 
 not be ordered to issue until a verdict had been given assessing 
 the value of the chattel (e}. Since the Acts, where in an 
 
 (c) 17 & 18 Viet. c. 125, now 
 repealed, 46 & 47 Viet. c. 49. 
 
 (d) 19 & 20 Viet. c. 97, s. 2, 
 
 Mercantile Law Amendment Act, 
 1856. 
 (e) Chilton v. Carrington, 15 C. B.
 
 THE WHIT OF DELIVERY. 197 
 
 action for detention interlocutory judgment in default of Chap. VI. 
 appearance had been signed under O. XIII. r. 5, an o xm r g 
 application for a writ of delivery was refused on the 
 ground that the writ of- inquiry prescribed by the rule for 
 the purpose of assessing the value had not been issued (/'). 
 These decisions illustrate the nature of the writ, and, it is 
 submitted, show that it is applicable only to enforce a 
 judgment for recovery of a chattel when such judgment is 
 the counter-part of that in an action of detinue at common 
 law. The writ was not framed for the enforcement of 
 orders in equity for the delivery of specific articles (y] . 
 
 The writ of delivery does not, of course, affect the Effect of 
 property in the thing recovered. It is under the judgment 3 ro g ert nt in n 
 or order, and not under the writ, that the plaintiff's title to goods, 
 the property in question arises, or rather is authenticated 
 and recorded. The effect of a judgment in detinue is said 
 to be that the goods recovered remain the plaintiff's until 
 he proceeds for the damages, instead of applying for a writ 
 of delivery. Until execution has issued, a judgment cre- 
 ditor, in an action of detinue, is unable to get satisfaction, 
 and the property in the goods remains in him (h]. 
 
 We have already mentioned the writ of distringas nupcr Distress under 
 vicecomitem (i). "What we have there stated with regard 
 to the practice on that writ will apply mutatis mutandis to 
 the remedy of distress under the writ of delivery. 
 
 By 0. XLYIII. r. 2, " A writ of delivery shall be in the 0. XLVIII. 
 form No. 10 in Appendix H., and when a writ of delivery *' ' . . 
 
 730 ; 24 L. J. C. P. 78. Such a (g) From the wording of rule 1 
 verdict is the only one which a of 0. XLVIII., it certainly appears 
 jury could return in favour of the to have been in the contemplation 
 plaintiff, and no question of option of its frainers, that the property 
 in the defendant could arise till might not in some cases have been 
 after verdict. See, as to the form assessed when the writ could never- 
 taken by the judgment in detinue, theless issue. 
 
 Phillips v. Jones, 19 L. J. Q. B. (h) Re Scarth, L. R. 10 Ch. 234 ; 
 
 374. Brimmead v. Harrison, L. R. 7 
 
 (/) Corbett v. Lewin, W. N. C. P. 547; Ex parts Drake, Re 
 
 1884, 62. See Ivor// v. Cruiekshank, Ware, 5 Ch. D. 866. 
 
 W. N. 1875, 249. (i) Supra, p. 145.
 
 198 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. is issued the plaintiff shall, either by the same or a sepa- 
 and separate ra ^ e wr it of execution, be entitled to have made of the 
 
 writ for defendant's goods the damages and costs awarded and 
 
 damages. 
 
 interest. 
 
 The different forms of the writ will be found in the 
 Appendix (k) . It will be observed from them, that the 
 old procedure by way of writ of distringas incorporated in 
 the form now in use is still available for compelling the 
 return of the goods, but that a fi. fa. may be added for 
 realizing the amount of the damages for detention, interest 
 and costs. 
 
 (k) Appendix, infra, pp. 418, 419, Forms Nos. 53 55.
 
 ( 199 ) 
 
 CHAPTEE VII. chap. YII. 
 
 EXECUTION AGAINST CLERGYMEN. 
 
 WHEN it is sought to enforce execution against a clergy- Position of 
 man, or person in holy orders, the private property belong- ^execution? 
 ing to him can be seized and dealt with to answer the exe- 
 cution just as is the case with the property of any other 
 person. But property which he has in his character of 
 clerk, can be taken only subject to provisions for certain 
 paramount rights, and to certain special methods of proce- 
 dure, which we proceed in this chapter to discuss. 
 
 To put the matter in another way, although a clergy- 
 man has many personal privileges (a), they do not extend 
 to the exemption of his own property from execution ; and 
 even the property devoted to ecclesiastical purposes is 
 liable to be taken, subject to restrictions, in satisfaction of 
 a judgment or order for payment of money. 
 
 Grlebe lands and the churchyard, being consecrated to Glebe lands, 
 Grod, are not subject to an elegit (b), nor can ecclesiastical 
 goods, which phrase appears to mean rents and profits of 
 glebe lands, be touched by lay hands (c). All execution 
 against these two species of property must be effectuated 
 through the bishop of the diocese in which they are 
 situated (d). 
 
 (a) See Cripps' Church and the law with respect to this is 
 
 Clergy, Ch. VI. As we have ex- analogous to that of the doctrine 
 
 eluded from discussion in this work which prevents the assignment of 
 
 the subject of arrest for non-pay- a salary for performance of a public 
 
 ment of debt, we have no need to duty. 
 
 deal with that privilege which the (d] Sequestrators appointed by 
 
 parson enjoys when attending pub- the Court of Chancery have no 
 
 lie worship. Ch. Arch. 14th ed. power to touch ecclesiastical goods, 
 
 (V) Gilb. Ex. p. 40. for instance, tithes. Ward v. 
 
 (c) Arbuckle v. Cowtan, 3 B. & P. Hayes, 1 Hog. 107. 
 322. It is said that the policy of
 
 200 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 0. XLIII. 
 r. 3. 
 
 Writs against 
 
 beneficed 
 
 clerks. 
 
 The return on 
 which writs 
 directed to 
 bishop 
 founded. 
 
 O. XLIII. 
 r. 4. 
 
 Execution of 
 writs against 
 beneficed 
 clerks. 
 
 By 0. XLIII. r. 3, " Where it appears upon the return 
 of any writ of fieri facias or any writ of elegit (e), that the 
 person against whom such writ was so issued is a beneficed 
 clerk, and has no goods or chattels, nor any lay fee, in the 
 bailiwick of the sheriff to whom such writ was directed, 
 the person to whom the sum of money or costs mentioned 
 in such writ is or are payable shall, immediately after such 
 writ with such return shall have been filed as of record, be 
 at liberty to sue out one or more writs of fieri facias de Ionia 
 ecclesiasticis, or one or more writs of sequestration" 
 
 The form of the return mentioned in this rule will be 
 found in the Appendix (/). It is essential that it should 
 be made before the writ against ecclesiastical goods can 
 issue (g), but when made, no leave for issue of the writ is 
 necessary (Ji) . It must be observed, that the return should 
 state whether the beneficed clerk is a rector or vicar, and 
 the name of his benefice, for the reason that only property 
 of which he is possessed as a corporation sole is liable to 
 execution at all (f) . 
 
 By 0. XLIII. r. 4, " Such writs as in the last preceding 
 rule mentioned, when sealed, shall be delivered to the 
 bishop to be executed by him, and such writs when 
 returned by the bishop shall be delivered to the parties 
 or solicitors by whom respectively they were sued out, 
 and shall thereupon be filed as of record in the Central 
 
 (e) It is submitted that since, 
 now, an elegit does not relate to 
 goods, a return to that writ is in- 
 sufficient to found the writs against 
 ecclesiastical goods mentioned in 
 this rule. 
 
 (/) Appendix, p. 419, infra, 
 Form, No. 56. 
 
 (ff) Bromage \. Vavghan, 1 Ex. 
 223. This implies that a creditor 
 must exhaust the temporal goods 
 before having recourse to spiritual. 
 Of course no such recourse can be 
 had after elegit executed ; Vide 
 
 supra, Chapter on Elegit. But a 
 writ of fi. fa. or seq. fa. de bonis 
 eccles. has been ordered to issue on 
 the return of an ordinary seques- 
 tration issued out of Chancery. 
 Allen v. Williams, 2 Sm. & Giff. 
 455. See, however, Babbitts v. 
 Woodward, 20 L. T. 693, 778. 
 
 (h) This has been the practice for 
 a considerable period. Caudwell v. 
 Cotton, 10 C. B. 575. 
 
 (i) Moscley v. Warburton, 1 Ld. 
 Raym. 265 ; S. C., 1 Salk. 320.
 
 EXECUTION AGALXST CLERGYMEN. 
 
 Office ; and for the execution of such writs, the bishop or Chap. vii. 
 his officers shall not take, or be allowed, any fees other 
 than such as are, or shall be, from time to time allowed by 
 lawful authority." 
 
 The two writs issuable under rules 3 and 4 above quoted The position 
 are directed to the bishop, who, in such case becomes for of the blsh P- 
 the purpose a temporal officer, a kind of ecclesiastical 
 sheriff (k) , and by virtue of the writ may seize ecclesiastical 
 goods and sell them (/). He is, therefore, with respect 
 to the Court and the execution, in a similar position to 
 the sheriff, the method of proceeding against him, if he 
 neglect his duty, being the same. He must return the writ 
 if called upon to do so, and in default a rule or order may 
 be made against him (tri). For the reason, however, 
 which will more fully appear when we come to discuss the 
 mode of execution of the writ, the return should be asked 
 for not of the writ but of the amount levied under it (n). 
 If a false return be made an action can be brought against 
 the bishop therefor (0). Where the bishop to whom the 
 writ was directed dies, or is translated to another diocese, 
 the execution continues and the return must be made by 
 his successor (p). 
 
 The execution creditor may at his option issue either a Creditor may 
 
 " "- 
 
 fi. fa. de bonis ecclesiasticis or a scquestrari facias de corn's 
 
 (K) But the execution of the writ Vollans, 1 Dowl. 434. Whether 
 
 is, in some sense, a judicial act. See the practice of ruling the bishop any 
 
 Powell v. Hibberd, 19 L. J. Q. B. longer exists, may be questioned. 
 
 347. Vide infra, p. 202, n. (t). See terms of O. LII. r. 11. 
 
 (0 Walivyn v. Awlerry, 2 Mod. (n) Marsh v. Faiocett, 2 H. Bl. 
 
 257. During the vacancy of the 582 ; Hart v. Vollans, 1 Dowl. 434. 
 See, the writ is directed to the (o) Pickard v. Paiton, 1 Sid. 276 ; 
 
 Archbishop. See Append ix, infra, Gilb. Ex. 26. 
 Form, No. 59. ( p) Dawson v. Symmons, 18 L. J. 
 
 (TO) Marsh \. lawcett, 2 H. Bl. Q. B. 34 ; Phelps v. St. John, 24 
 
 582 ; Rex v. B. of London, 1 D. & L. J. Ex. 171. But he need not 
 
 E. 486. But the debtor cannot return what has been done by his 
 
 compel a return (at least, so long predecessor. Phillips v. Berkeley, 5 
 
 as the debt is unsatisfied). Hart v. Dowl. 279.
 
 202 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. ecclesiasticis. The forms of these two writs are given in the 
 
 eccles., or seq. Appendix (g). Both of them are executed in the same 
 
 fa. de b. eccles. manner, by the bishop appointing sequestrators or a seques- 
 
 trator under his warrant (r) . It appears, therefore, to be a 
 
 matter of small moment which of the two writs is chosen. 
 
 They are stated to be in the nature of a fi. fa. and a lev. 
 
 fa. respectively (s) . 
 
 Practice on The writ, on being issued, is taken to be executed to the 
 registrar of the diocese, whose duty it is, without delay, to 
 issue a sequestration in the nature of a warrant (t). This 
 sequestration may be addressed to the churchwardens of 
 the parish in which the living to be sequestered is situated, 
 or to any other person in the discretion of the bishop (u) . 
 The sequestration is usually granted to the creditor him- 
 self or persons of his nomination (x) . The sequestration 
 varies in form according to whether &fi.fa. or a sequestrari 
 de bonis ecclesiasticis has been issued, and according to the 
 circumstances of the case. Forms of two sequestrations 
 are given in the Appendix (y). In the same way that an 
 ordinary writ oifi.fa. is, after it is delivered to the under- 
 sheriff, in the control of the person issuing, so, also, is a 
 writ of ecclesiastical execution, after it has been delivered 
 
 (q) Vide Appendix, Forms, Nos. terial act. See Powell v. Hilberd, 
 
 58, 60. 19 L. J. Q. B. 347. Where several 
 
 (r) Vide infra, the Forms are writs are delivered at once, ap- 
 
 given in the Appendix, p. 522, parently that creditor is entitled 
 
 Forms, Nos. 61, 62. to the sequestration whose judg- 
 
 (s) The levari facias would appear ment is first in date. Hex v. B. of 
 
 technically to be the more stringent London, 1 D. & R. 486. 
 proceeding, for example, it em- (u) Hubbard v. Beckford, 1 Hagg. 
 
 powered the sheriff to cut down Consist. Rep. 307 ; S. ., note to 
 
 trees and crops, which he could not Wliinfield v. Watkins, 2 Ph. Eccl. 
 
 do under a fi. fa. See Ch. Arch. Rep. p. 5. 
 
 Pr. 13th ed. 602. The sequestrators, (x) In such case, security for the 
 
 however, cannot cut down trees. due performance of the sequestra- 
 
 Prid. Churchw. Guide, p. 521. tion may be required by the bishop. 
 
 Vide infra. See practice detailed, Sturgis v. B. 
 
 (t) The awarding of the seques- of London, 7 El. & Bl. p. 550. 
 tration upon the writ by the bishop (y) Vide infra, Appendix, p. 421, 
 
 is a judicial rather than a minis- Forms, Nos. 61, 62.
 
 EXECUTION AGAINST CLERGYMEN. 203 
 
 to the registrar, and it must be countermanded or enforced chap. VII. 
 according to the directions of the creditor. 
 
 The first duty of the sequestrator is to publish the Publication of 
 sequestration. The publication is made in the manner sequestration, 
 customarily in use in the parish, and where it was formerly 
 the custom in the parish to make the publication in church 
 during service, it must now be affixed, previously to the 
 commencement of divine service (2), to the church doors (). 
 The rents and profits of the benefice are bound as against 
 the incumbent and all other persons from the date of 
 publication (b) . It is from the date of publication that the 
 priorities of competing sequestrations are ascertained, that 
 publication which is first made entitling the creditor under 
 it to be first satisfied ; the mere issue of the sequestration 
 has, in respect to the priority of various executions, no 
 effect (c). The mere issue of a sequestration is, however, Effect of issue 
 apparently of effect in the case of the incumbent debtor . f sequestra- 
 becoming bankrupt even before publication. By sect. 52 bankruptcy of 
 of the Bankruptcy Act, 1883 (d), where a bankrupt is a ^cumbent. 
 beneficed clergyman, the trustee may apply for a seques- c 52 s- 52? ' 
 tration of the profits of the benefice, and the certificate of 
 the appointment of the trustee shall be sufficient authority 
 for the granting of sequestration without any writ or other 
 proceeding, and the same shall accordingly be issued as on 
 a writ of levari facias founded on a judgment against the 
 bankrupt, and shall have priority over any other_seques- 
 
 (z) Either morning or evening. (c) LegassicJce v. B. of Exeter, B. 
 
 BurneUy v. Overseers of Methley, '28 B,. E. 22 Geo. iii. ; 1 Cromp.Pr. 351. 
 
 L. J. M. C. 152. And, as to lands, Wise v. Beres- 
 
 (a) 1 Will. 4 & 1 Viet. c. 45, s. 2. ford, 2 Con. & L. 282. The writ 
 Practically the case everywhere. directed to the bishop does not, like 
 See Bennett v. Apperley, 6 B. & C. a/, fa. or lev. fa. at common law, 
 630. bind the goods from the date of the 
 
 (b) Doe d. Morgan v. Blitck, 3 teste; and the 16th section of the 
 Camp. 447 ; Waite v. Bishop, 1 C. Statute of Frauds has no applica- 
 M. & K. 507 ; notwithstanding the tion to it. Sturgis v. B. of London, 
 apparently contradictory dictum cf 7 E. & B. 542. 
 
 Bayley, J., in Bennett v. Apperley, (d) 46 & 47 Viet. c. 52. 
 
 6B. &C. p. 634.
 
 204 
 
 Book I. 
 
 Incumbent 
 ousted by 
 sequestration. 
 
 Position and 
 duties of the 
 sequestrator. 
 
 Repairs. 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 tration issued after the commencement of the bankruptcy 
 in respect of a debt provable in the bankruptcy, except a 
 sequestration issued before the date of the receiving order, 
 by or on behalf of a person who, at the time of the issue 
 thereof, had not notice of an act of bankruptcy committed 
 by the bankrupt, and available for grounding a receiving 
 order against him (d). 
 
 The effect of the sequestration is to take away from the 
 incumbent the right to receive the rents and profits of the 
 benefice ; he is said, in fact, to be ousted from posses- 
 sion (e). The incumbent being, however, bound to reside 
 in the parsonage house, the sequestration cannot oust him 
 from that (/). The bishop is, on the sequestration being 
 published, substituted for the incumbent, and regarded as 
 being in possession, through or by means of the seques- 
 trator, in the same way as the sheriff is regarded as being 
 in possession by his bailiff (g). 
 
 The sequestrator is bound, out of the proceeds of the 
 sequestration, to provide, just as the incumbent is bound 
 to provide, for all necessary charges, specially for repairs 
 and the performance of divine service (A). The seques- 
 trator may be compelled by the bishop or churchwardens 
 to repair the edifices belonging to the benefice, and nothing 
 can exonerate him from this (i). There are statutory 
 provisions regulating the duties of sequestrators as to 
 repairs under which a surveyor of the diocese is elected, 
 and his duty is to report upon the state of repair of 
 dilapidated buildings in any benefices within it. The 
 sequestrator is bound, subject to his substantiating before 
 the bishop his objections thereto, to do the repairs specified 
 
 (d) The provisions of sects. 45 & 
 46 do not, it is submitted, apply at 
 all to the case of a sequestration, 
 whether by fieri facias or seques- 
 trari facias de bonis ecclesiasticis. 
 
 (e) Doe d. Morgan v. Slack, 3 
 Camp. 447 ; Powell v. Hibberd, 19 
 L. J. Q. B. 347. 
 
 (/) Pack v. Tarpley, 9 A. & E. 
 468. 
 
 (g) Harding v. Hall, 10 M. &W. 
 42. 
 
 (K) Hubbard v. BecJcford, 1 Hagg. 
 Cons. Rep. 307. 
 
 (t) WMnfield v. WatJcins, 2 Ph. 
 Eccl. Rep. 8.
 
 EXECUTION AGAINST CLERGYMEN. 205 
 
 in the surveyor's report, and the sum stated as their cost Chap. VII. 
 is made a charge on the monies received by the seques- 
 trator in priority to all other charges, except the stipends 
 of the curate or curates appointed to perform the duties 
 attaching to the benefice (j). 
 
 The proper service of the church is regulated by the Performance 
 bishop, who appoints the person who is to officiate, and of service - 
 fixes the amount of salary or stipend he is to receive. 
 The bishop has not absolute discretion as to how much 
 this stipend shall be, but it is regulated according to 
 population, and must not, in any case, exceed two-thirds 
 of the annual value of the benefice (k). 
 
 The sequestrator could not maintain an action at Sequestrator's 
 common law for tithes (/), but now he may, under the P wertosue 
 power conferred upon him by statute, bring and prosecute 
 any action or levy any distress, or take any other pro- 
 ceeding in his own name, as the sequestrator of the 
 particular benefice, without further description, for the 
 recovery of rent, tithes, rent-charge, fees, or any other 
 payments payable to the incumbent of the benefice, the 
 power to bring the action being limited by the provision 
 that it is sustainable only where, but for the sequestration, 
 the incumbent might have brought and prosecuted it (m). 
 A payment made to the sequestrator is an effectual dis- Payment to 
 charge to the party from liability to pay to the incum- 
 bent (w). 
 
 It would appear that interference with the sequestrator 
 is a contempt (o). 
 
 The sequestrator was always bound to account to the Liability of 
 bishop under the sanction of being compelled thereto by 
 
 (j) Ecclesiastical Dilapidations (/) 3 Burn's Eccl. Law, 9th ed., 
 
 Act, 1871, 34 & 35 Viet. c. 43. See 596. Harding v. Hall, 10 M. & "W. 
 
 Cripp's Church and Clergy, 6th ed., 42. 
 
 531. Kimber v. Paravicini, 15 Q. (/) 12 & 13 Viet. c. 67, 8. 1. 
 
 B. D. 222. () Sect. 2. See Powell T. Hib- 
 
 (k) The Sequestration Act, 1871, berd, 19 L. J. Q. B. 347. 
 
 34 & 35 Viet. c. 45. See Cripp's (o) Note to White v. B. of Peter - 
 
 Church and Clergy, 6th ed., 533. borough, 3 Swans, p. 119.
 
 206 
 
 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. 
 
 Reference to 
 master. 
 
 Duration of 
 sequestration. 
 
 Suspension. 
 
 Inhibition of 
 incumbent. 
 
 Amotion. 
 
 the Ecclesiastical Court (p). And there can hardly be a 
 question that the Court had jurisdiction to make an order 
 directly against him for the ease of the bishop (</) . 
 
 The accounts, when thus rendered to the bishop, are 
 returned by him, and are then subject to disallowance by 
 the Court, and may be referred to a master to report (r). 
 The application for a reference should be made in the 
 division from which the process issued, and should be, it 
 seems, by motion (s). 
 
 The sequestration continues until its determination, 
 which may happen by the levy of the sum indorsed upon 
 it, by the death or suspension of the incumbent, or by his 
 amotion (by which is meant his acceptance of another 
 living), or by the return of the writ cft.fi.fa. or sequest.fa. 
 de bon. eccles., upon which it depends. 
 
 As to the grounds of suspension and the events upon 
 which the bishop can exercise his power, reference must be 
 made to works on ecclesiastical law. It is clear, however, 
 that suspension does operate to determine the sequestra- 
 tion (f). After a sequestration has been in force for more 
 than six months, power is given by statute to inhibit the 
 incumbent from performing any services of the church 
 within the diocese (it). An inhibition has not, of course, 
 the effect of determining the sequestration. 
 
 There is express statutable provision that, during the 
 continuance of a sequestration, the incumbent of the bene- 
 
 (p) If, notwithstanding the decree 
 of the ecclesiastical Court, the ac- 
 count was refused, a power of at- 
 torney might be given by the bishop 
 to the creditor to sue at law upon 
 the bond given by the sequestrator. 
 Wats. Cler. Law. Ch. 30. 
 
 (q) Garston v. Williams, Longf. 
 & Towns. 168. 
 
 (>) Dawson v. Symmons, 18 L. J". 
 Q. B. 34. It would appear that 
 the order will be made, notwith- 
 
 standing that the accounts have 
 been settled in the consistory Court. 
 Morris v. Phelps, 19 L. J. Ex. 
 165. 
 
 (s) See Williams v. Ivimey, 23 
 L. T. 100 ; Kimber v. Paravicini, 
 15 Q. B. D. 222. 
 
 (t) Bunter v. Cresswell, 19 L. J. 
 Q. B. 357 ; see Morris v. Ogden, 
 L. E. 4 C. P. 687. 
 
 (if) 34 & 35 Viet. c. 45, s. 5.
 
 EXECUTION AGAINST CLERGYMEN. 207 
 
 fice, under sequestration, shall not accept or be instituted Chap. VII. 
 or licensed to any other benefice where thereby the seques- 
 tration would be vacated or avoided, unless with the con- 
 sent in writing of the bishop of the diocese and the 
 sequestrator (x). 
 
 The sequestration is a continuing execution unless the Return, 
 plaintiff takes away the authority under which the seques- 
 tration issues by calling generally for a return of the 
 writ (y}. The proper course is to rule (z) the bishop from 
 time to time to know what he has levied (?/). If the 
 bishop returns the writ at his own instance before the 
 debt has been levied, it will be taken off the file and 
 sent back to him (a). Both plaintiff and defendant are, 
 it seems, entitled to a return of what has been done, 
 but the defendant cannot ask for a return of the writ 
 itself (b). 
 
 A. reasonable allowance is usually made to a sequestra- Remuneration 
 tor according to the trouble he may have been put to in trator] 16 * 
 the collection of the rents and profits of the benefice. 
 
 The same rule prevails in respect to this as to other Execution 
 methods of execution, that the creditor enforcing his debt gubjecTt^ 6 
 by means of a sequestration against a clergyman, takes prior charge, 
 subject to every prior valid charge upon the benefice (c}. 
 And for determining the priority of valid charges and 
 sequestrations, the Court will, no doubt, entertain an 
 action (d). Although there can be no valid charge created 
 by a beneficed clerk over his benefice (e), competing seques- 
 
 (x) 34 & 35 Viet. c. 45, s. 1. (c) White \. B. of Peterborough, 
 
 (y) Marsh, v. lawcett, 2 H. Bl. 3 Swans. 109. 
 
 582. (d) Ib. ; Errington v. Howard, 1 
 
 (z) Vide supra, p. 201, n. (m). Amb. 485. 
 
 (a) AUerton v. St. Aubyn, 6 M. (e) Nor does a judgment create a 
 & "W. 150. charge under sect. 13 of 1 & 2 Viet. 
 
 (b) Hart v. Vollans, 1 Dowl. 434. c. 110, notwithstanding the words 
 It is submitted that by analogy to "rectories, tithes, &c." Hawkins 
 the proceedings, under an ordinary v. Gathercole, 6 De G. M. & G. 1 ; 
 writ of fi. fa., he can do so after Bates v. Brothers, 23 L. J. Ch. 
 the debt has been satisfied. 782.
 
 208 CONCERNING EXECUTION ON JUDGMENTS, ETC. 
 
 Book I. trations will be regarded as incumbrances in equity to the 
 extent that an account be ordered by a prior to a subse- 
 quent sequestrator appointed by the bishop (/) ; but, of 
 course, no authority competing with the sequestrator, such 
 as a receiver, will be made (g). 
 
 (/) Cuddington v. Withy, 2 (g) See Hawkins v. Gathercole, 6 
 
 Swans. 174. De G. M. & G. p. 18.
 
 ( 209 
 
 BOOK II. 
 
 CONCERNING METHODS OF EXECUTION WHERE DIS- 
 OBEDIENCE IS A CONTEMPT OF COURT. 
 
 WE have in Book I. discussed judgments and orders, and Subject of 
 their enforcement, so far as it relates to the right to legal, as 
 distinguished from equitable, property. There are other 
 methods of execution, where on a judgment or order for 
 non-payment of money it is desired to have recourse to 
 property of the execution debtor, which cannot be reached 
 by the writs of fieri facias and elegit. The discussion of 
 these methods forms that part of our subject which is 
 treated of in Book III. 
 
 Book II., which we now introduce, we propose to divide 
 into four Chapters : 
 
 CHAP. I. Of the Nature of a Contempt of Court. 
 II. Of the Writ of Attachment. 
 III. Of Committal. 
 IY. Of the Writ of Sequestration. 
 
 The writ which is the subject of this last-mentioned 
 Chapter is a stringent process dealing in fact with pro- 
 perty, but is, nevertheless, applicable only where a con- 
 tempt of court has been committed. It is, therefore, 
 appropriate that it should be treated of in this Book. 
 
 E.
 
 210 
 
 Book II. 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 CHAPTER I. 
 
 OF THE NATURE OF A CONTEMPT OF COURT. 
 
 Judgments 
 and orders to 
 do or abstain 
 from doing. 
 
 SECT. 1. OF THE HIGH COURT. 
 
 WE have seen that the difference between a personal 
 judgment or order, and one relating to or declaring title 
 to property, is not a difference of form only, but in reality 
 depends upon the particular jurisdiction, legal or equitable, 
 which has been resorted to in pronouncing it. 
 
 Judgments and orders of the High Court directing 
 persons to do, or abstain from doing, anything, are, for the 
 most part, lineal descendants of decrees and orders in 
 equity. The principles on which they are enforced are 
 those which prevailed in the Court of Chancery, and have 
 already formed the subject of discussion in our introduc- 
 tory Chapter. Wherever the jurisdiction there referred to 
 is rightly exercised, the person disobeying the judgment or 
 The "writ of order is in contempt. The procedure to compel obedience 
 took, at one time, the form of a "writ of execution " em- 
 bodying the order which had been previously drawn up 
 and entered. This writ of execution, having first appended 
 to it the Great Seal (#), was served upon the party com- 
 manded to do or not to do the particular thing which was 
 the subject of the decree or order. If the writ was dis- 
 obeyed, the contempt was thereupon committed, technically, 
 by the offence of not paying obedience to the Great Seal. 
 The necessity for this writ and its service has been done 
 away with. It is now sufficient to serve the judgment or 
 
 () Gilb. For. Rom. 166 ; Dan. Oh. Pr. 5th ed. 903.
 
 THE NATURE OF A CONTEMPT OF COURT. 211 
 
 order ; but, up to a comparatively recent date, it was still a Chap. I. 
 fatal objection to an order for issue of process for contempt, Sec - 1 - 
 that the " writ of execution," duly sealed, had not been 
 served (b). 
 
 It is not only to a judgment or order properly made and Undertaking 
 served that the consequences of contempt are attached. mCourt - 
 The breach of an undertaking entered into in Court is, for 
 our purposes, equally a contempt, and the usual process for 
 enforcing compliance can be resorted to (c). 
 
 Breaches of judgments or orders to do, or abstain from Ordinary 
 doing, anything, and of undertakings entered into in Court, & Bmpt * 
 are known in the Chancery Division, following the lan- 
 guage of the Court of Chancery, as " ordinary contempts." 
 
 No such judgment as those above mentioned, nor any The jurisdic- 
 judgment having, with respect to execution, an equivalent clTtio^atlaw 
 effect, could be made at common law. It was, there, different, 
 only where a contempt was committed in the face of the 
 Court itself, or where a person had disobeyed a rule of 
 court made against him, that process in the nature of exe- 
 cution could be taken against his person and enforced by 
 writ of attachment. 
 
 The procedure in such cases was by an order or rule of The procedure 
 court nisi, which called upon the person against whom it court nisi and 
 was directed to show cause why it should not be made absolute - 
 absolute, and which thus gave him an opportunity of justi- 
 fying whatever act of his might be complained of. This 
 rule of court nisi and absolute was, in truth, ancillary to 
 the right claimed in any particular action, where it might 
 happen to be a part of the procedure. It did not form 
 part of what the one litigant party claimed from the other, 
 and, to entail the consequences of contempt for disobedience, 
 could only be made in certain well-defined cases (d). The 
 
 (b) Green v. Green, 2 Sim. 394, p. 257. 
 
 A.D. 1828. (d) An enumeration of these cases 
 
 (c) It is said that in such cases is to be found in 4 Bl. Com. 295, 
 committal, and not attachment, is and more completely in Tidd's Pr. 
 the proper remedy. Vide infra, 478. It will be seen, on a refer-
 
 212 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. fact that the jurisdiction exercised was entirely different 
 from that of the equity Courts, can hardly be better shown 
 than by the fact that disobedience to a judge's order at 
 law was no contempt until that order had been made a 
 rule of court (e) And, in certain cases, the mere dis- 
 obedience of a rule of court was not sufficient to bring a 
 person into contempt. He must have had a demand made 
 of him to perform it (/). 
 
 Where at the present time an order is made by one of 
 the judges of the High Court, in pari mater ia with those 
 formerly made by the judges of the common law Courts, 
 disobedience is not contempt, unless such order is equiva- 
 lent to a rule absolute. 
 
 Besides its jurisdiction to make the judgments and 
 orders above referred to, every Court has, as incident to it, 
 and resulting from the first principles of judicial esta- 
 blishments (<7), the power of punishing for contempt of its 
 jurisdiction and authority. The effect of the order made 
 by the Court on such an occasion is distinct from that of 
 the judgment or order which is given as relief to a person 
 for any particular wrong done him. The essence of a 
 contempt of the authority of a Court is the disrespect 
 shown to it, and the insult passed upon its dignity. This 
 kind of contempt is frequently a source of injury to 
 persons who have no connection or relation with the Court, 
 and they can frequently in such case invoke its jurisdiction 
 for their redress. For example, the wrong-doer may be a 
 solicitor, and, as such, may have committed an act which 
 amounts to contempt of the Court of which he is an 
 officer. There is no doubt he is liable to its summary 
 
 Contempt of 
 the Court 
 itself. 
 
 ence to these passages, that, except 
 in the case of disrespect of the 
 Court's authority, and a breach of 
 an agreement which had been made 
 a rule of court, the person against 
 whom process for contempt could 
 issue always occupied a defined 
 relation to the Court. 
 
 (e) Baker v. Eye, 1 Dowl. 689 ; 
 Chilton v. Ellis, 2 Cr. & M. 459; 
 Ex parte Laurence, 2 Dowl. 230. 
 
 (/) See Evans v. Millard, 3 Dowl. 
 661 ; Swinfen v. Swinfen, 18 C. B. 
 485. 
 
 (ff) 4 Bl. Comm. ed. 1876, 297-
 
 THE NATURE OF A CONTEMPT OF COURT. 213 
 
 jurisdiction, and it will compel him, as its officer, to do Cha P- I - 
 justice. Another example occurs where undue means have 
 
 been employed for executing process (ti) . With this kind 
 of contempt, although the parties to litigation may have an 
 interest in bringing the matter before the Court, we have 
 but little to do. It can hardly be said to be more than col- 
 lateral to the subject of execution. Where an officer of the 
 Court, engaged in the process of execution, has neglected or 
 broken his duty, the most convenient way of obtaining 
 redress against him may be by a summary application to 
 the tribunal entertaining the matter. To this extent we 
 are concerned in the inquiry of how he should be dealt 
 with, and shall endeavour to answer it, as we have already 
 done in the case of sheriffs and other officers engaged in 
 the execution of writs. 
 
 It should be mentioned that the kind of contempt com- " Special con- 
 mitted by disrespect shown to the authority of the Court is 
 known to the Chancery Division, again following the lan- 
 guage of the Court of Chancery, as "special contempt." 
 
 SECT. 2. THE EIGHT TO PROCESS FOR CONTEMPT. 
 
 From what we have stated in sect. 1 of this Chapter, True nature 
 the extent of our inquiry can be easily gathered. We have n di^bedi- 
 broadly to consider only those cases of contempt where ?j et e jj tor 
 one party has the right to enforce against the other the order, 
 judgment or order of the Court. The view from which 
 we desire the subject to be regarded is set forth with some 
 force in the dictum of Sir John Nichol, when sitting in the 
 Arches Court of Canterbury. He says : " A notion pre- 
 vails that a contempt must be some disrespect shown to 
 the Court, and that the imprisonment is in the discretion, 
 and terminable at the pleasure, of the judge. This is 
 
 (K) See Anon., 2 Ken. 372.
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Main prin- 
 ciple that one 
 party has the 
 right to en- 
 force process 
 against the 
 contemnor. 
 
 Illustration : 
 right of ap- 
 peal. 
 
 erroneous. Contempts are usually incurred by a party's 
 neglect or refusal to do some act which is in justice due to 
 the other party to the cause, such as the giving of answers, 
 the payment of costs, or the like, and the imprisonment 
 which follows is at the prayer of the other party a prayer 
 to which the Court cannot refuse to accede without a 
 breach of its duty and a denial of justice" ('). 
 
 The principle is implied in this dictum that where a 
 judgment or order has been obtained against a litigant 
 party, and process for contempt against his person is the 
 appropriate remedy, the party in whose favour the judg- 
 ment is made has a right to issue such process (A*). He 
 therefore can waive his right, and thereby release the con- 
 temnor from liability for his contempt (/) , which, were 
 the dignity of the Court in question, could not be done 
 without its sanction. The principle has always been re- 
 cognized, and has been recently re-stated in the form that, 
 where the appropriate remedy is by process for contempt, the 
 Court has no discretion, no matter how oppressive the juris- 
 diction may be (m). An illustration of the principle may 
 be found in the law, when the right to appeal is in question, 
 which, though somewhat wide of our subject, may well be 
 mentioned. Where the process for contempt is a matter 
 of right, an appeal lies to the Court of Appeal from the 
 order authorising it, but where the issue of such process is 
 a matter of discretion, an appeal will not be entertained, 
 except in cases of gross miscarriage (n). 
 
 The limitations to this important rule, which we have 
 expressed in the language of Sir John Nichol, should bo 
 
 (i) Barleev. Barlee, 1 Add. 301. 
 
 (k) See the instructive judgment 
 of Brett, L. J., In re Freston, 11 
 Q. B. D. 545, for comparison of 
 ordinary process for contempt for 
 non-payment of money in equity, 
 and ca. sa. at law. 
 
 (1) Anon., 15 Ves. 174 ; Wood- 
 ward v. Twinaine, 9 Sim. 301 ; 
 
 Roberts v. Albert Bridge Co., L. R. 
 8 Ch. 753. 
 
 (m) Evans v. Bear, L. E. 10 Ch. 
 76. 
 
 (n) It is submitted that this pro- 
 position is supported by Ashworth 
 v. Outram, 5 Ch. D. 943 ; Jar main 
 v. Chatterton, 20 Ch. D. 493.
 
 THE NATUKE OF A CONTEMPT OF COURT. 215 
 
 clearly ascertained. The rule itself does not stand entirely Chap. I. 
 free from contradiction in the language adopted by the 8ec - 2 - 
 judges in certain recent cases (0), and the ratio decidendi in Contradictory 
 one of them appears to be absolutely inconsistent with the 
 principle ( p) ; but notwithstanding these apparently incon- 
 sistent decisions, it is submitted that the rule still stands, 
 subject to the limitations which we now proceed to dis- 
 cuss (q). 
 
 The reason for the rule does not exist where the juris- Limitations of 
 diction of the Court is sought to be exercised punitively, 
 as, for example, where the contempt charged is a " special tempt, 
 contempt." For when the contempt alleged is mere dis- 
 respect to the Court, there is no judgment which the 
 parties can, of right, seek to enforce one against the other. 
 
 Again, the rule cannot apply where the process of the No prospec- 
 Court is attempted to be set in motion ex post facto, and no t V 
 prospective purpose could be served by its being effectu- 
 ated (r) ; or, to take another expression of the same circum- 
 stances, where all the evils of non-compliance have already 
 happened (*). 
 
 Where other methods of execution, besides personal No appliea- 
 process, are available, and have not been exhausted, the O tterperti- 
 Court will, it is submitted, exercise its discretion in order- n ent remedy, 
 ing or allowing process for contempt to issue (f). This is, 
 of course, inconsistent with the issue of process as of right. 
 The cases where such other methods of execution are avail- 
 able have, for the most part, been provided for by statute, 
 
 (o) See Ashworth v. Ontram, 5 De G. 129 ; Ashworth v. Outram, 
 
 Ch. D. 943. 5 Ch. D. 943, may perhaps be ex- 
 
 (p) Ferguson v. Ferguson, L. K. plained on this ground, though for 
 
 10 Ch. 661. another explanation, see Jarmain 
 
 (q) Jarmain v. Chatterton, 20 Ch. v. Chatterton, 20 Ch. D. 493. 
 
 D. 493. (t) " If no other pertinent remedy 
 
 (r) Ex parte Fletcher, 2 M. D. & can be found." Jessel, M. R., Re 
 
 De G. 129, though the person in Clements, Republic of Costa Rica v. 
 
 contempt was in that case ordered Erlanger, 46 L. J. Ch. 375. See 
 
 to pay costs. also Grace v. JBaynton, 25 W. K. 
 
 (*) Ex parte Fletcher, 2 M. D. & 506.
 
 V 216 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. and execution against property substituted for imprison- 
 "" ment of the person. We proceed to discuss the statutable 
 
 enactments on this branch of our subject. 
 
 Judgments or The first subjects of statutable interference we shall refer 
 
 payment of to are those judgments or orders made for payment of 
 
 money. money, and of which disobedience is a contempt. Under 
 
 such judgments or orders are included as well those for 
 
 payment from one person to another, as those for payment 
 
 into Court (u}. 
 
 To some extent the enforcement of the order of the 
 Court that money shall be paid, was always regarded as in 
 the nature strictly of an execution directed to obtain the 
 Position of money itself. To illustrate, a person who had become 
 contempt for bankrupt and could not pay was entitled to be released 
 non-payment. f r0 m custody (#). And at the present date, as well as in 
 times gone by, the bankruptcy of a contemnor in contempt 
 for non-payment of money still materially affects his posi- 
 tion with respect thereto. If the debt is one for which the 
 bankrupt would, by his discharge, obtain a release, the 
 Court will doubtless order his discharge. But where the 
 debtor has procured his own bankruptcy, the Court will 
 not order his discharge (y}. In a case where the debt was 
 one from which bankruptcy did not release the debtor he 
 was discharged pending the bankruptcy (z) . The discharge 
 from custody was refused where the defaulter bankrupt 
 was a solicitor, and the order for committal was made 
 against him punitively (a). From this illustration it is 
 clear that, although process for contempt may be considered 
 as in some sort a method of execution for recovering the 
 amount due, it is, in reality, more than that, for the Court 
 
 (u) At one time the only order (y) Earl of Lewes v. Barnett, 6 
 
 made in Chancery, with reference Ch. D. 252. 
 
 to payment of mo ney, was for pay- (z) Cobham v. Dalton, L. B. 10 
 
 ment into Court. Ch. 655 ; Pashler v. Vincent, 8 Ch. 
 
 (x) Ex parte Parker, 3 Ves. 554 ; D. 825. 
 
 Re Me Williams, 1 Sch. & Lef. 169, (a) In re Deere, L. K. 10 Ch. 
 
 p. 174 ; see Harvey v. Harvey, 26 658. 
 Ch. D. 644.
 
 THE NATURE OF A CONTEMPT OF COURT. 217 
 
 does not discharge an arrested debtor as of right, nor Chap. I. 
 necessarily refuse to arrest him on the ground of his Sec - 2 - 
 bankruptcy. Where there is no such circumstance as 
 bankruptcy, and no statutable enactment to protect the 
 defaulter, the other party is entitled, as of right, to his 
 execution against the person of the contemnor, and the 
 Court has no jurisdiction to refuse an application for 
 that purpose (b). 
 
 A considerable alteration in the law, and consequently in Act for aboli- 
 the practice of the Courts, was made by the statute for the 
 
 abolition of arrest on mesne process (c). By sect. 18 of 1 & 2 Viet. 
 that statute it is enacted " that all decrees and orders of ' . 
 
 Sect. 18. 
 
 Courts of equity, and all rules of Courts of common law, 
 and all orders of the Lord Chancellor, or of the Court of 
 review in matters of bankruptcy, and all orders of the 
 Lord Chancellor in matters of lunacy, whereby any sum of 
 money, or any costs, charges or expenses, shall be payable 
 to any person, shall have the effect of judgments in the 
 superior Courts of common law." 
 
 By sect. 20 of the same Act, the Courts were empowered 1 & 2 Viet. 
 
 i i -i - i i -i j- jC. 110. s. 20. 
 
 to issue such new writs as might be necessary or expedient 
 for giving effect to the provisions of the Act. In pur- 
 suance of this section, orders in Chancery were made, and 
 forms of writs of /. /., elegit and vend. exp. authorized, 
 corresponding, except with respect to the recitals, with 
 the forms in ordinary use at common law (d}. 
 
 It is to be observed, that the statute extends only to Effect of the 
 n i -, p ,1 statute on 
 
 decrees and orders made tor payment by one person to personal pro- 
 
 another of a definite sum (e), and not to decrees or orders cess - 
 for payment of money into Court (/). There is, in this 
 enactment, no limitation of the powers of the Court of 
 Chancery to commit for contempt; but it could, after the 
 
 (i) Evans v. Bear, L. R. 10 Ch. (d} 1 Beav. App. XII. ; 3 T. & 
 
 76. In complete accord with the Col. Ex. App. IV. 
 
 language of Sir John Nichol in (e) See Ditfce of Beaufort v. 
 
 Barlee v. Barke, 1 Add. 301, above Phillips, 1 De G. & S. 321. 
 
 referred to. (/) Gibbs v. Pike, 8 M. & W. 
 
 (e) 1 & 2 Viet. c. 110. 223.
 
 218 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 The Debtors 
 Act, 1869. 
 
 32 & 33 Viet. 
 c. 62, s. 4. 
 
 passing of the Act, still proceed to enforce the payment of 
 money in that manner, notwithstanding that the creditor 
 might issue an ordinary writ of execution for recovery of 
 it. Instead, however, of the process being obtainable by 
 the party entitled to it as a matter of right, wherever the 
 statute provided another pertinent remedy by which satis- 
 faction could be obtained, the Court would doubtless, if the 
 question had arisen, have considered process for contempt 
 as a matter of discretion (#). 
 
 This state of the law continued down to 1869, when the 
 Debtors Act (A) was passed. The operation of this statute 
 was in some cases to entirely prohibit the exercise of the 
 right to personal process against the contemnor which 
 formerly existed ; and, in other cases, to very considerably 
 modify or limit the power of every Court to imprison a 
 person in contempt for non-payment of money. 
 
 Sect. 4 of the Act is as follows : " With the exceptions 
 hereinafter mentioned, no person shall, after the commence- 
 ment of this Act, be arrested or imprisoned for making 
 default in payment of a sum of money. 
 
 " There shall be excepted from the operation of the 
 above enactment 
 
 (1.) Default in payment of a penalty, or sum in the 
 nature of a penalty, other than a penalty in respect 
 of any contract. 
 
 (2.) Default in payment of any sum recoverable 
 summarily before a justice or justices of the peace. 
 (3.) Default by a trustee or person acting in a fiduciary 
 capacity, and ordered to pay by a Court of equity 
 any sum in his possession or under his control. 
 (4.) Default by an attorney or solicitor in payment of 
 costs, when ordered to pay costs for misconduct as 
 such, or in payment of a sum of money, when 
 ordered to pay the same in his character of an 
 officer of the Court making the order. 
 (5.) Default in payment, for the benefit of creditors, of 
 
 (y) Vide supra, p. 215. 
 
 (h) 32 & 33 Viet. c. 62.
 
 THE NATURE OF A CONTEMPT OF COURT. 219 
 
 any portion of a salary or other income, in respect of Chap. I. 
 the payment of which any Court having jurisdiction Sec - 2 - 
 in bankruptcy is authorized to make an order. 
 (6.) Default in payment of sums in respect of the pay- 
 ment of which orders are in this Act authorized to 
 be made. 
 
 Provided, first, that no person shall be imprisoned, in any 
 case excepted from the operation of this section, for a 
 longer period than one year : and, secondly, that nothing 
 in this section shall alter the effect of any judgment or 
 order of any Court for payment of money, except as 
 regards the arrest and imprisonment of the person making 
 default in paying such money." 
 
 Since this Act, no imprisonment whatever for contempt A year's im- 
 of Court for non-payment of money is lawful for a longer thTSmit for 
 period than a year. This is true even in those cases which ^ u contempt 
 
 L j - j.1 A i. r -\ for non -p a y- 
 
 are excepted trom me Act (i). ment. 
 
 The exceptions in the Act, with the limitations placed 
 'upon them by the proviso at the end, left untouched the 
 former law, and the right of the injured person to issue 
 process for contempt in the cases we have mentioned re- 
 mained, notwithstanding the statute. This was found to 
 be still in many cases unduly harsh, and a new discretion 
 entirely was given to the judges by the Debtors Act, The Debtors 
 1878 (&). Under that enactment, in any case coming ' 
 within the exceptions numbered (3) and (4) in the 4th section 
 of the Debtors Act, 1869, any Court or judge making the 
 order for payment, or having jurisdiction in the action or 
 proceeding in which the order for payment is made, may 
 inquire into the case, and (subject to the proviso in the 
 section) may grant or refuse, either absolutely or upon 
 terms, any application for a writ of attachment, or other 
 process or order of arrest or imprisonment, and any appli- 
 cation to stay the operation of any such writ, process, or 
 
 (t) Vide Middleton v. Chichester, on all writs of attachment. Vide 
 L. R. 6 Ch. p. 156, passim; and is the infra. 
 reason for the note to that effect (A) 41 & 42 Viet. c. 54.
 
 220 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Payment to a 
 person and 
 into Court. 
 
 These statutes 
 have no effect 
 as to con- 
 tempt itself. 
 
 Judgments 
 and orders 
 with respect 
 to land. 
 
 Old practice 
 as to land. 
 
 order, or for discharge from arrest or imprisonment there- 
 under. 
 
 The distinction between a judgment for payment of 
 money to a person, and payment into Court, has already 
 been mentioned. Its practical importance will be seen 
 more clearly when the writ of sequestration comes to be 
 discussed. The Debtors Act covers judgments of both 
 kinds, for the reason that the words are general "for 
 making default in payment " (/). 
 
 In order to understand the operation, so far as it concerns 
 us, of these two statutes, it should be mentioned that they 
 do not affect in any way the mere question whether or not 
 a contempt of Court has been committed. The Act of 
 1869 does no more than to abolish, in certain cases of 
 non-payment of money, imprisonment for that contempt. 
 In like manner, the Act of 1878 gives the Court a discre- 
 tionary power only in the cases therein named, and leaves 
 untouched the principle of Barlee v. Barlee (m). 
 
 "We have thus far considered the effect of judgments or 
 orders for payment of money; but where they are for 
 delivery of land, they form the subject of enactments and 
 rules which are perfectly distinct. The basis of the juris- 
 diction is, of course, in both cases the same disobedience 
 of the order of the Court is a contempt. But in the case 
 of land there is no enactment similar to sect. 18 of 1 & 2 
 Yict. c. 110, above referred to ; nor is there any statute 
 like the Debtors Act, 1869, limiting the powers of the 
 Court with respect to imprisonment. 
 
 The old practice, when a decree was made directing one 
 person to give possession of land to another, was to pro- 
 ceed, in the first place, for contempt. If this process was 
 stood out, a " writ of assistance," directed to the sheriff, was 
 awarded on motion (n). 
 
 (I) See In re Byrne, 6 L. E. Ir. 
 455 ; Hutchinson v. Hartmont, 
 W. N. 1877, 29. 
 
 (m) Vide supra, p. 213. 
 
 (n) The whole procedure was 
 strictly in personam, the process 
 subsequent to attachment being 
 considered as essentially in assist-
 
 THE NATURE OF A CONTEMPT OF COURT. 221 
 
 Now, every judgment and order for the recovery or for Chap. I. 
 the delivery of land is enforceable by writ of possession. 
 
 and although there is no enactment derogating from the The "*"?* of 
 jurisdiction of the Court to commit, it is manifest that, 
 since the pertinent remedy of this writ exists, that juris- 
 diction would hardly be exercised. "We have already dis- 
 cussed the writ of possession at some length. 
 
 The Court of Chancery was not infrequently called upon Judgments or 
 to exercise its jurisdiction to enforce the delivery of specific specific^ 
 things. The cases where this jurisdiction was resorted to things, 
 arose when the thing or article detained was sui generis, so 
 that the damages which a Court of law could award could 
 not be an adequate measure of the injury inflicted upon 
 the owner of the thing (<?) . The Court of Chancery pro- 
 ceeded to compel obedience to its decrees and orders in such 
 cases by the usual process of contempt, and the same juris- 
 diction is, at the present time, exercised in the Chancery 
 Division. It has been decided that the writ of delivery, 
 which would otherwise perhaps have formed an appropriate 
 remedy in such cases, applies only to a judgment where 
 the value of the specific thing sought to be recovered has 
 been assessed, when in fact a judgment of the same effect 
 as a judgment in detinue has been delivered (p). 
 
 The proposition, therefore, that in cases where a con- Modification 
 tempt has been committed in non-performance of a duty hat p art y has 
 enjoined by a judgment or order, the person towards a right to 
 whom that duty should have been performed has a right contempt. 
 
 ance merely of the ordinary pro- -writ of assistance is no longer 
 
 cess for contempt. See the cum- issued. Hall v. Hall, 47 L. J. Ch. 
 
 brous machinery set forth, Beames' 680. 
 
 Ch. Ord. See judgment of Lord (o) Pusey v. Pusey, and Duke of 
 
 Redesdale in East India Co. v. Somerset v. Cookson, 1 W. & T. L. 
 
 Kynaston, 3 Bli. 153, p. 166. For C. 961 (6th ed.). 
 
 form of writ of assistance, Braith- (p) Corbettv. Lewin, W.N. 1884, 
 
 waite's Record and Writ Practice ; 62, following Chilton \. Carrington, 
 
 Dan. Ch. Pr. 4th ed. 957. The 15 C. B. 730; vide supra, p. 197.
 
 222 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. to the issue of process for contempt, requires considerable 
 modification. The power to imprison for non-payment of 
 money is modified, as we have seen, by the Debtors Act. 
 Obedience to judgments or orders enjoining the delivery 
 of land is enforceable, in the first place, by appropriate 
 writs, and only by personal process when those writs have 
 been exhausted. 
 
 SECT. 3. EXECUTION BY SUBSTITUTIONARY PROCESS. 
 
 Substitu- The necessity for proceeding personally against a con- 
 
 me rthocis of temnor for disobedience to the order of the Court, has been 
 
 execution. i n m any cases further modified by statutory enactment. 
 
 Provision has been made that, where an order has been 
 
 pronounced for the performance of some duty, the order 
 
 may be sufficiently complied with by persons other than 
 
 those commanded to perform it. This is merely a method 
 
 of substitutionary execution. 
 
 Where a person had been ordered to execute a deed, he 
 could, by persistent refusal to comply with the order, defy 
 any method of execution which might be devised to com- 
 pel his compliance. This case was, where a deed was 
 ordered to be executed, attempted to be met by an enact- 
 ment which provided that, after imprisonment for two 
 months, if the contemnor still persisted in his refusal to 
 execute, power should be given to the Court to order one 
 of the Masters, or, if the act was to be done out of London, 
 one of the Masters Extraordinary, to execute the deed in 
 his name (q) . 
 
 Power to vest This enactment still stands unrepealed, but is practi- 
 Truetee Acts. ca ^7 abrogated by others. The Trustee Acts, 1850 and 
 
 1852 (r), enabled the Court to vest lands and other property 
 in the events mentioned therein, and thereby, for many 
 
 (q) 11 Geo. IV. & 1 Will. IV. c. Viet. c. 49. 
 
 36, s. 15, r. 15. See also 15 & 16 (r} 13 & 14 Viet. c. 60 ; 15 & 16 
 
 Viet. c. 80, s. 36, repealed 46 & 47 Viet. c. 55.
 
 THE NATURE OF A CONTEMPT OF COURT. 223 
 
 purposes, superseded the above-mentioned enactment (*). chap. I. 
 A still wider power is now vested in the Court; for by Sec - 3 - 
 sect. 14 of the Judicature Act, 1884 (*)," Where any person Sect, u, 
 neglects or refuses to comply with a judgment or order 
 directing him to execute any conveyance, contract, or other 
 document, or to indorse any negotiable instrument, the 
 Court may, on such terms and conditions (if any) as may 
 be just, order that such conveyance, contract, or other 
 document shall be executed, or that such negotiable instru- 
 ment shall be indorsed, by such person as the Court may 
 nominate for that purpose, and in such case the convey- 
 ance, contract, document or instrument so executed or 
 indorsed shall operate and be for all purposes available as 
 if it had been executed or indorsed by the person origi- 
 nally directed to execute or indorse it." 
 
 Under this section the late Mr. Justice Pearson, on the 
 refusal of a defendant to comply with an order to execute 
 a mortgage over certain real estate the subject of the 
 action, nominated his chief clerk as the person to execute 
 the mortgage (u). 
 
 Still wider powers for these methods, which we have 0. XLII. 
 termed substitutionary execution, were given by 0. XLII. r< 30 ' 
 r. 30, whereby, " If a mandamus, granted in an action or O f mandamus, 
 otherwise, or a mandatory order, injunction, or judgment & f c -> b 7^ ans 
 for the specific performance of any contract be not com- himself, 
 plied with, the Court or a Judge, besides or instead of 
 proceedings against the disobedient party for contempt, 
 may direct that the act required to be done may be done 
 so far as practicable by the party by whom the judgment 
 or order has been obtained, or some other person appointed 
 by the Court or Judge, at the cost of the disobedient 
 party, and, upon the act being done, the expenses incurred 
 may be ascertained in such manner as the Court or a Judge 
 may direct, and execution may issue for the amount so 
 ascertained, and costs." 
 
 (*) See, in a case of specific per- (t) 47 & 48 Viet. c. 61. 
 
 formance, Hall v. Hale, 51 L. T. 226. (u) Re Edwards, 33 W. E. 578.
 
 224 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. This rule is specially important in connection with 
 sect. 14 of the Judicature Act, 1884, above referred to. 
 It does not apply to a mere undertaking (x). 
 
 Contempt for There is, besides these general enactments, a special 
 
 ing or deposit- power given to sequestrators, after the committal of a 
 
 ing in Court. p ers0 n for contempt, to seize books, papers, or any other 
 
 articles ordered to be deposited in Court, and which are in 
 
 the custody of the person against whom the sequestration 
 
 issues, just as if the sequestrators were seizing the con- 
 
 temnor's own property (y) . 
 
 As was observed at the commencement of this section, 
 these various methods of substitutionary execution consider- 
 ably modify the extent of the right to the issue of personal 
 process. 
 
 Attachment 
 and com- 
 mittal. 
 
 Contempo- 
 
 SECT. 4. CONSEQUENCES OF CONTEMPT. 
 
 It will appear in the two next Chapters that there are 
 two methods whereby the judgment or order of the Court 
 is enforced against the person. The one is a writ of 
 attachment, the other an order and consequent warrant of 
 commitment. In whichever of these two ways a person 
 is imprisoned for contempt, the imprisonment does not 
 operate as a discharge of the debt due, or the obligation 
 incurred under the judgment. At law, when by writ of 
 ca. sa. a person who owed money was taken, his arrest and 
 imprisonment were a discharge of the debt. No such 
 result followed from imprisonment for contempt (z), and 
 in equity the contemnor was arrested, as it has been put, 
 on mesne process to answer for his contempt in disobey- 
 ing (a) . This is undoubtedly the case at the present time. 
 The imprisonment, being in punishment for contempt only, 
 
 (x) Mortimer v. Wilson, 33 W. E. 
 937. 
 
 (y) 11 Geo. IV. & 1 Will. IV. 
 c. 36, s. 15, r. 16. 
 
 (z) Reg. v. Hemsworth, 3 C. B. 
 745 ; Reg.v. Weston, 8 Jur. 1122. 
 
 (a) Roberts v. Sail, 3 Sm. & G-. 
 168.
 
 THE NATURE OF A CONTEMPT OF COURT. 225 
 
 is, therefore, no obstacle to issuing any other writ ; for ex- Chap. I. 
 ample, a writ of sequestration (b) to enforce, in another 8ec- * 
 
 manner, the obligation imposed by the -judgment or order (c) raneous at- 
 T p ,, ' | ?i m tachment and 
 
 imprisonment 01 the person and other methods of other process. 
 
 execution are not the only means adopted by the Court Position of 
 to enforce obedience to its direct judgments or orders, 
 We refer to the rule that the parties to an action must 
 clear their contempt before they can be heard (d). The ing. 
 rule appears to have its origin in an ordinance of Lord 
 Bacon, where it is expressed in the very widest terms (e). 
 
 It is thus expressed by another old authority, "And 
 upon this head it is to be observed, as a general rule, that 
 the contemnor who is in contempt is never to be heard 
 by motion or otherwise till he hath cleared his contempt, 
 and paid the costs : as, for example, if he comes to move 
 for anything, or desires any favour from the Court, if the 
 other side says or insists that he is in contempt, tho' 'tis 
 but an attachment for want of an answer, which, if not 
 executed, is only ten shillings, and if executed, is twelve 
 shillings and sixpence, yet even in this case he is not 
 entitled to be heard until he hath paid these costs (however 
 small they are), &c." (/) . 
 
 The precise limits assigned to the rule (if rule it be), The rule in 
 
 (b) Hide v. Pettit, I Ch. Ca. 91 ; 399 ; and Maguire v. O'Reilly, 3 J. 
 Wells v. Gibbs, 3 Beav. 399. & L. 224, p. 241 ; Gibbs v. Pike, 8 
 
 (c) Formerly, i. e. before the re- M. & W. 223. 
 
 peal of sect. 16 of 1 & 2 Viet. c. (d) Vowles v. Young, 9 Ves. 172 ; 
 
 110, by Stat. Law Rev. Act, 1874 Wenman v. Osbaldiston, 3 Bro. P. C. 
 
 (37 & 38 Viet. c. 96), if the debtor 276 ; Garstin v. De Gar&ton, 34 L. J. 
 
 were taken into custody in satis- Mat. Ca. 45. 
 faction of the debt, the creditor (e) Beames' Ch. Orders, 35. 
 
 ceased to be entitled to a charge or (/) Gilb. For. Rom. 102. It is 
 
 the benefit of any security what- on this same principle that a per- 
 
 soever given over land by the Act son appealing against an order of 
 
 1 & 2 Viet. c. 110. This was held committal or attachment for con- 
 
 not to apply to imprisonment for tempt will not be heard, unless he 
 
 contempt. Roberts v. Ball, 3 Sm. comes in in person and submits to 
 
 & G. 168 ; Wells v. Glibs, 3 Beav. the jurisdiction of the Court. 
 
 E.
 
 226 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Discharge, 
 clearing con- 
 tempt. 
 
 Book II. by the more modern practice, are difficult to define (y) , and, 
 odern perhaps, it may be regarded merely as an expression of 
 
 tice. the principle upon which the Court acts in ordering a stay 
 
 of proceedings at the instance of the defendant (h) . There 
 is no doubt, however, that if a plaintiff continues in con- 
 tempt, his action may be dismissed (i). 
 
 Where a person is imprisoned for contempt, he must, 
 before he has a right to go free, submit to the Court and 
 clear his contempt (k) ; though it is said that where no 
 useful object can be gained, and the purposes of justice will 
 not be answered, by detaining a party in custody for con- 
 tempt, the Court is bound to discharge him (/). 
 
 But even if he does clear his contempt, he must come to 
 the Court on motion (m) to pray for his discharge. Until 
 an order for his discharge, he is still in contempt (n). 
 Imprisonment However, where a person is imprisoned in any case 
 within the exceptions contained in sect. 4 of the Debtors 
 Act, 1869, he is discharged as of course without motion or 
 order at the end of one year, for the reason that the 
 writ of attachment, by having thereon an indorsement to 
 that effect, only authorizes his detention for that period (o). 
 
 (y) See Wilson v. Sates, 3 My. & 
 Or. 197, and authorities referred to 
 in 1 Dan. Ch. Pr. p. 904 ; Madden 
 v. Woods, 7 Ir. Eq. Rep. 637. 
 
 (h) Ricketts v. Morning ton, 4 L. J. 
 (N. S.) Ch. 21 ; Re Neal, Weston v. 
 Neal, 31 Ch. D. 437. 
 
 (i ) Republic of Liberia v. Imperial 
 Sank, L. R. 9 Ch. 569 ; S. C., sub 
 nom. Republic of Liberia T. Roye, 
 L. R. 1 Ap. Ca. 139. The mere 
 non-payment of costs of an un- 
 successful motion will not of itself 
 be sufficient to found an applica- 
 tion to dismiss : Gould v. Twine, 
 43 L. J. Ch. 381. 
 
 (A) See Dan. Ch. Pr. 901 et seq., 
 6th ed. 
 
 (I) Joyce v. Joyce, Sau. & Sc. 
 703. 
 
 (m) Formerly by petition. Dan. 
 Ch. Pr. 6th ed. 902. 
 
 (n) Green v. Thompson, 1 S. & S. 
 121. The notice of motion must 
 be served upon the other parties to 
 the proceedings ; this is upon the 
 principle that contempt is a method 
 of execution laid down in Barlee 
 v. Barlee, 1 Add. 301. 
 
 (0) In re Edwards, Brooke v. Ed- 
 wards, 21 Ch. D. 230. But where 
 there is no such indorsement an 
 order for discharge is still perhaps 
 necessary. Nalty v. Aylett, 43 L. 
 J. Ch. 721.
 
 THE NATURE OF A CONTEMPT OF COURT. 227 
 
 Considerable statutory powers are given to the Court Chap. i. 
 with respect to the discharge of prisoners. sec. 4. 
 
 By rule 17, s. 15 of 11 Geo. IV. & 1 Will. IV. c. 36, in General 
 any other case of commitment for contempt (not specifically 
 provided for in the Act), the Court may, upon any appli- custody. 
 cation made after seizure of papers by sequestrators under 
 rule 16 of the same section, to which we have already 
 referred, or upon any report of visitors provided for by the 
 Act, make such order for the discharge of the prisoner 
 upon any such terms, and making, if the Court shall see 
 fit, any costs costs in the cause, as to the Court shall seem 
 proper. 
 
 This rule would appear to give the widest discretion to 
 the Court, and in such view affords a significant commen- 
 tary upon the right of any party to process for contempt, 
 which we have already dwelt upon. 
 
 Again, by rule 16, already referred to (/)), after seizure Discharge 
 
 by the sequestrators of articles not belonging: to the con- ? fter seizure 
 ,\ . , . . , . -, , . . bysequestra- 
 
 temnor, but in his possession, whicn can only take place, tors. 
 
 as we have seen, after his committal, power is given to 
 discharge the prisoner on such terms as to the Court shall 
 seem proper. 
 
 By sect. 17 of 11 Geo. IY. & I Will. 1Y. c. 36, "Where Process for 
 the process of contempt is for the non-performance of an act, ^heremsol- 
 for example, the not answering the plaintiff's bill, and the vent con - 
 bill in equity to which the insolvent is a party is taken cleared con- 
 pro confesso, and he has not paid the costs of the contempt, 
 or the insolvent has fully answered the plaintiff's bill or 
 interrogatories, or otherwise cleared his contempt, except 
 as far as regards the payment of the costs, or it has become 
 in event unnecessary for him to do the act for the non-per- 
 formance of which he was committed or attached, the Court 
 of equity in which the suit is depending shall, upon the 
 application of the party in contempt, discharge him from 
 the same, except (q) as to the costs thereof, for which he 
 
 (p) Supra, p. 224. (q) The exception as to costs is 
 
 repealed by 42 & 43 Viet. c. 59. 
 Q2
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. shall remain in custody, and such costs shall be deemed 
 
 .within the provision lastly hereinbefore contained, and he 
 shall be dischargeable therefrom, and from the process of 
 contempt, in like manner as if the process of contempt 
 were for non-payment of money or costs; provided that 
 this order or regulation shall not weaken any of the other 
 powers by this Act given, nor shall anything herein 
 contained lessen the operation of the said Act for the relief 
 of insolvent debtors." 
 Power of And to close the statutory enactments relating to the 
 
 discharge of the contemnor, by rule 18 of the same section 
 power is given to the Court to discharge compulsorily a 
 prisoner entitled to his discharge, although he omits to 
 make any application therefor, or to discharge him from 
 the contempt, and leave him in custody for the costs.
 
 ( 229 ) 
 
 CHAPTER II. chap. ii. 
 
 THE WRIT OF ATTACHMENT. 
 
 THE jurisdiction of the Court to enforce its judgments by Connection 
 personal process was discussed in the last Chapter, and the ^ 
 
 extent to which that jurisdiction has been interfered with, Chapter. 
 or modified by statute and by the rules of practice, con- 
 sidered. We now proceed to discuss the process itself, and 
 the methods of enforcing judgments and orders, of which 
 disobedience is a contempt of Court. 
 
 The process most in use is the writ of attachment (a). 
 There is one other method of proceeding against a person 
 in contempt, viz., by committal. This last-named process 
 is carried out without recourse to any writ, the officer's 
 authority being contained in a warrant merely, and is still 
 resorted to in some cases. It will be discussed in the next 
 Chapter. 
 
 The form of the writ of attachment, as prescribed by the 
 rules (b), is as follows : 
 
 Yictoria, by the grace of God, &c. 
 
 To the sheriff of , greeting : ment. 
 
 We command you to attach C. D., so as to have him 
 before us in the Division of our High Court of 
 
 Justice, wheresoever the said Court shall then be, there to 
 answer to us, as well touching a contempt, whioh it is 
 alleged he hath committed against us, as also such other 
 matters as shall be then and there laid to his charge, and 
 
 (a) As to antiquity of this writ, (b) O. XLII. r. 14, Appendix H. 
 
 see note (a), 1 Sp. Eq. Jur. 391. No. 12.
 
 230 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. further to perform and abide such order as our said Court 
 ~ shall make in this behalf, and hereof fail not, and bring 
 this writ with you (d] . 
 Witness, &c. 
 
 Jurisdiction. 
 
 Leave to issue 
 essential in 
 all cases. 
 
 Issue of writ 
 at law. 
 
 SECT. 1. THE ISSUE OF THE WRIT. 
 
 SUB-SECT, (i). The Jurisdiction and Rules of Court indicat- 
 ing when the Writ is issuable. 
 
 In all cases where a contempt of Court has been com- 
 mitted, there can be no question of the power and authority 
 of the Court to issue a writ of attachment (e), except where 
 that method of procedure is forbidden by the Debtors Act 
 of 1869. It is impossible, therefore, to enumerate every 
 case in which the writ will be granted, or to frame a 
 general proposition which shall at once include and describe 
 the events on which it will issue. It is sufficient, for the 
 present, to state that the usual method of procedure to 
 enforce execution for contempt is a writ of attachment, but 
 that in certain well-recognized events the Court proceeds 
 by order of committal and warrant to the proper officer for 
 enforcement. 
 
 The writ of attachment does not issue as of course ; by 
 0. XLIV. r. 2, " No writ of attachment shall be issued 
 without the leave of the Court or a judge, to be applied 
 for on notice to the party against whom the attachment 
 is to be issued." 
 
 It was always, at common law, an acknowledged princi- 
 ple, that a writ of attachment could not be issued except 
 on an order of the Court (/). Further, it was always 
 
 (d) This form is substantially 
 that formerly in use in Chancery. 
 See Braithwaite's Forms, 158. See 
 Appendix, infra, Form No. 64, for 
 writ and indorsements. 
 
 (e) See discussion of the juris- 
 diction to issue process for con- 
 
 tempt, and comparison of English 
 and Irish practice as to committal 
 and attachment, Re O'Reillys, 2 
 Hog. 20. 
 
 (/) " Where judgment is given 
 against one who is in view of the 
 Court, or in Westminster Hall, it
 
 THE WRIT OF ATTACHMENT. 231 
 
 recognized that the order nisi must have been served per- Chap. n. 
 sonally (g). In the two cases only of the attachment of a Sec - 1 (*) 
 sheriff for disobedience to an order to return a writ, and of 
 the non-payment of costs on a master's allocatur, the order 
 for issue of attachment was absolute in the first instance ; 
 in all other cases the writ was only issued after an order 
 had been made on a rule nisi, which had been served on the 
 person sought to be attached (ti). In Chancery, no order Issue of -writ 
 of the Court for the issue of the writ was necessary, for the H 
 ordinary method of execution being by means of the writ, 
 it was issued at the applicant's wish, and if he in issuing 
 it was wrong he took the consequences (A). This rule, 
 therefore, has of itself entirely altered the practice in the 
 Chancery Division (i), and in conjunction with the provi- 
 sions of 0. LII. rr. 1, 2, and 0. LIY. r. 1, has changed 
 the practice which would otherwise have prevailed in the 
 Queen's Bench Division, by making the order for the writ 
 obtainable on motion, and not by means of rule nisi and 
 absolute. 
 
 At law, the process against an officer of the Court who Process for 
 had disobeyed an order made against him in that capacity, law ad in 
 was a writ of attachment. In equity, a writ of attachment equity against 
 
 T -L j a? ' officers of the 
 
 could not issue against a disobedient officer, e.g., a receiver, Court, 
 for he was not a party to the cause ; the process against 
 him was an order for his committal (&). This proce- 
 dure was, perhaps, varied by the terms of Consolidated 
 Order XXIX. r. 3, which authorized the issue of a writ of 
 attachment to enforce obedience against any person. This 
 rule of the Consolidated Orders was abrogated by rule 2 of 
 
 may be executed immediately, and (A) Abud v. Riches, 2 Ch. D. 
 
 the party taken or sent for into 528 ; Dan. Ch. Pr. 5th ed. 386 
 
 Court and committed. But this can et seq. 
 
 scarcely occur in civil actions where (i) A writ of attachment issued 
 
 judgment must be signed." Anon., without notice will be discharged. 
 
 3 Salk. 160. Dallas v. Glt/n, 3 Ch. D. 190. 
 
 (y) Rex v. Smithies, 3 T. E. 351. (A) Re Belts Estate, Foster v. Sell, 
 
 L. E. 9 Eq. 172.
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Rules of 
 court* 
 
 Recovery of 
 property 
 other than 
 land or 
 money. 
 
 Injunction or 
 
 mandamus. 
 
 Payment of 
 money into 
 Court. 
 
 Order against 
 a corporation. 
 
 the Order made under the Debtors Act, 1869 (/). It would, 
 therefore, appear that strictly the method of procedure 
 against officers of the Court (except the sheriff and other 
 officers of the Courts of common law) is by committal, and 
 not by attachment. This point will be referred to again 
 infra (m) . 
 
 The rules of the Supreme Court have denned almost 
 exhaustively the cases in which the writ of attachment 
 will issue, and have laid down the conditions to be 
 observed (). 
 
 By 0. XLII. r. 6, "A judgment for the recovery of any 
 property, other than land or money, may be enforced : 
 
 (a) By writ for delivery of the property : 
 
 (b) By writ of attachment (0) : 
 
 (c) By writ of sequestration." 
 
 It is worthy of remark, that the phrase "by writ of 
 attachment " here has been said to include attachment of 
 a debt (p). 
 
 By 0. XLII. r. 7, " A judgment requiring any person 
 to do any act, other than the payment of money, or to 
 abstain from doing anything, may be enforced by writ of 
 attachment or by committal." 
 
 By 0. XLII. r. 4, " A judgment for the payment of 
 money into Court may be enforced by writ of sequestra- 
 tion, or in cases in which attachment is authorized by law 
 by attachment." 
 
 By 0. XLII. r. 31, " Any judgment or order against 
 
 (I) See Morg. Ch. Acts, ed. 1876, 
 p. 297. 
 
 (m) Page 264. 
 
 (n) The rules are not exclusive, 
 that is to say, they do not limit the 
 jurisdiction of the Court, and there 
 may be cases for which they do 
 not provide, where the writ is still 
 issuable. See 0. XLII. r. 28. 
 
 (o) It should be observed that 
 this rule cannot impliedly limit the 
 jurisdiction of the Court, so as to 
 prevent process for attachment in 
 proper cases where the judgment 
 is for recovery of land or money, 
 Seton on Decrees, 1556. 
 
 (p) Stephen, J., as reported in 
 Fellows v. Thornton, 14 Q. B. D. 
 p. 337.
 
 THE WRIT OF ATTACHMENT. 233 
 
 a corporation wilfully disobeyed may, by leave of the Court Chap. n. 
 or a judge, be enforced by sequestration against the corpo- 8ec - 1 (*) 
 rate property, or by attachment against the directors or 
 other officers thereof, or by writ of sequestration against 
 their property " (<?). 
 
 By 0. XXXI. r. 11, "If any person interrogated omits Interroga- 
 te answer, or answers insufficiently, the party interrogating tories - 
 may apply to the Court or a judge for an order requiring 
 him to answer, or to answer further, as the case may be. 
 And an order may be made requiring him to answer, or 
 answer further, either by affidavit or by viva wee examina- 
 tion, as the judge may direct." 
 
 By 0. XXXI. r. 21, "If any party fails to comply with Discovery, 
 any order to answer interrogatories, or for discovery or 
 inspection of documents, he shall be liable to attachment. 
 He shall also, if a plaintiff, be liable to have his action dis- 
 missed for want of prosecution, and, if a defendant, to have 
 his defence, if any, struck out, and to be placed in the same 
 position as if he had not defended, and the party interro- 
 gating may apply to the Court or a judge for an order to 
 that effect, and an order may be made accordingly." 
 
 The above rules having laid down upon what judg- 
 ments and orders the writ will issue, we proceed to 
 discuss the formalities which are to be observed in respect 
 to such judgments and orders. 
 
 Before any step can be taken to enforce the judgments Entry of 
 and orders above referred to by writ of attachment, they an( j Orders 
 must be duly entered in accordance with 0. XLI. r. 1, essential, 
 and Cons. O. XXXY. r. 32 (r). If no proper entry 
 
 (q) This rule is taken from mere regula praxis can affect the 
 
 sect. 33 of C. L. P. Act, 1860 liberty of a subject, other than an 
 
 (23 & 24 Viet. c. 126), which sec- officer of the Court. It is hardly 
 
 tion is now repealed (46 & 47 Viet. a regulation relating to practice 
 
 c. 49). So long as the rule existed and procedure only. See sect. 17, 
 
 in substance, as a statutory enact- Judicature Act, 1875. 
 ment, its authority was undoubted. (r) Vide supra, p. 30, and 0. 
 
 Perhaps, it is doubtful how far a LII. r. 14, and 0. LV. r. 74 a.
 
 234 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. is made, the motion for writ of attachment will be 
 
 refused (.s) . 
 
 O. XLII. We have seen that by 0. XLIL r. 19," A party who 
 
 has obtained judgment or an order, not being a judgment 
 
 Fourteen days J * ' J 5 
 
 before issuing ior payment 01 money or costs, or ior me recovery 01 land, 
 
 execution, issue execution in fourteen days, unless the Court or a 
 
 except for * . 
 
 land or judge shall order execution to issue at an earlier or later 
 
 date, with or without terms." 
 
 It may be questioned whether this rule applies at all to 
 writs of attachment, for although they are included within 
 the term writs of execution under 0. XLII. r. 8, neverthe- 
 less, the heretofore existing rights to enforce every judg- 
 ment and order are saved by rule 28 (t). 
 
 SUB-SECT, (ii). Formalities of the Judgment or Order in 
 respect of which the Writ is issuable. 
 
 Requirements jyj judgments and orders enforceable by attachment 
 
 mentor order, (except injunctions) must comply with the terms of 
 
 O. XLI. r. 5. 0. XLL r. 5, whereby " Every judgment or order, made 
 
 in any cause or matter, requiring any person to do an act 
 
 thereby ordered, shall state the time, or the time after the 
 
 service of the judgment or order, within which the act is 
 
 to be done ; and upon the copy of the judgment or order 
 
 which shall be served upon the person required to obey the 
 
 game there shall be indorsed a memorandum in the words 
 
 or to the effect following, viz.-: 
 
 " If you, the within named A. B., neglect to obey this 
 
 judgment (or order) by the time therein limited, you will 
 
 be liable to process of execution for the purpose of com- 
 
 pelling you to obey the same judgment (or order) " (u). 
 
 No applica- This rule applies only to judgments and orders requiring 
 
 junction. a person to do some thing, and, therefore, does not apply 
 
 to injunctions which are orders restraining a person from 
 
 (s) Ballard v. Tomlinson, 52 L. J. (u) See Appendix, infra, for 
 
 Ch. 656. another form, p. 425, Form No. 65, 
 
 (f) Vide supra, p. 47. and note.
 
 THE WRIT OF ATTACHMENT. 235 
 
 doing specified acts. There is no difference in this respect, Chap. n. 
 even where the operation of the injunction has been by Sec - 1 (") 
 order suspended for a definite time (#). 
 
 Further, the rule does not apply to judgments or orders, Nor to judg- 
 other than those which from their nature a person can be JJJJere other 
 compelled by process of contempt to obey ; and by process than personal, 
 of contempt is meant both personal process, like the writ of 
 attachment, and the stringent process against property, 
 called the writ of sequestration (y). 
 
 As to the time which is to be stated by the judgment or Time to be 
 order, "forthwith" is sufficient to enable a motion in 
 default of obedience to be made (s). If the time within order - 
 which the act to be done is not stated, either by the expres- 
 sion " forthwith " or otherwise, the judgment or order is 
 not bad, or altogether ineffectual, but requires an order to 
 be made fixing a day for its performance before it can be 
 enforced by process for contempt (a). 
 
 Not only in the matter of time, expressly provided for by Judgment or 
 0. XLI. r. 5, but also in its terms, the judgment or order 
 
 must be clear and precise as to the acts to be done or 
 restrained. 
 
 There are numerous authorities at law to show that the 
 writ of attachment cannot be put in force to recover money 
 where payment of a precise or ascertainable sum is not 
 
 (x) Vide Selous \. Croydon Local 521. The case itself was an ap- 
 
 oard, W. N. 1885, 105. plication that the Clerks of Ee- 
 
 (y) This, it is suggested, is the cords and "Writs should be ordered 
 
 true limitation of the general words to issue an attachment, they having 
 
 of the rule. A fi. fa. cannot be felt a difficulty as to compliance 
 
 set aside on the ground that the with Cons. O. XXIII. r. 10, then 
 
 judgment on which it is issued has in force. 
 
 not been served, and does not (a) Necdham v. Needham, 1 Ha. 
 
 bear the indorsement prescribed. 633 ; Gilbert v. Endean, 9 Ch. D. 
 
 Land Credit Co. of Ireland \.Fermoy, p. 266. Similarly, a motion may 
 
 L. R. 5 Ch. 323. See, as to order be made to fix time and place 
 
 for payment of solicitor's costs, In which do not appear when they 
 
 re (A Solicitor), W. N. 1884, should in an order for specific per- 
 
 217. fonnance. Morley v. Clavering, 30 
 
 (z) Thomas v. Nokes, L. E. 6 Eq. Beav. 108.
 
 236 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Indorsement 
 on the judg- 
 ment or order. 
 
 Order under 
 the exceptions 
 in sect. 4, 
 Debtors Act, 
 1869. 
 
 The service of 
 the judgment 
 or order. 
 
 directly ordered ; as, for instance, where the order is that 
 a party be at liberty to amend on payment of costs (&). 
 But this rule does not apply to an interlocutory order for 
 payment into Court ; and an objection taken to a motion 
 for attachment, that the order it was sought to enforce 
 contained no adjudication of liability, was overruled (c). 
 
 The indorsement required by the rule is a matter of old 
 practice, that is to say, a similar indorsement has always 
 been requisite. The precise form has somewhat varied (c?), 
 and is not now so material as it formerly was (e). It is, 
 however, essential that the indorsement should correctly 
 state the consequence of a default in obeying it (/) ; and, 
 perhaps, this is the test whether, in this particular, the rule 
 has been complied with (g) . 
 
 In the cases where the judgment or order is for pay- 
 ment of money, but being within the exceptions contained 
 in sect. 4 of the Debtors Act, 1869, is enforceable by 
 process for contempt, it must show on its face sufficient to 
 justify an imprisonment under it (A). The indorsement 
 is essential, even in cases where service on the parties' 
 solicitor is made by 0. XXXI. r. 22, equivalent to per- 
 sonal service (') . 
 
 Strict personal service of the judgment or order is re- 
 quired, and is not waived by the party against whom it is 
 
 (V) Rese v. Fenn, 2 Dowl. 182; 
 Held v. Sawyer, 6 C. B. 71 ; Turner 
 v. Gill, 3 Dowl. 30; Hcndy v. 
 Collett, 7 Dowl. 599. The con- 
 tempt for non-payment of costs, in 
 cases where it arose, was upon the 
 undertaking of the party to pay 
 them, which had to be made a rule 
 of court. Harrison v. Ward, 3 
 Dowl. 541 ; Price v. Philcox, 7 
 Dowl. 559. 
 
 (c) Hutchinson v. Hartmont, W. K. 
 1887, 29. 
 
 (d) Cons. O. XXIII. r. 10; 
 Bules and Orders under Debtors 
 
 Act, 1869. Vide Morg. Ch. Acts, 
 5th ed. p. 296. 
 
 (e) As to the practice before the 
 Rules of Court of 1883, see Thomas 
 v. Palin, 21 Ch. D. 3CO ; Wallace 
 v. Graham, 11 L. R. Ir. 369. 
 
 (/) See Hinde v. Blake, 5 Beav. 
 431. 
 
 (g) Trehernc v. Dale, 27 Ch. D. 
 66, where the indorsement was in 
 the old form. 
 
 (K) In re Byrne, 6 L. R. Ir. 455. 
 
 (i) Hampden v. Wallis, 26 Ch. D. 
 746.
 
 THE WRIT OF ATTACHMENT. 237 
 
 made promising to perform the act enjoined thereby (). Chap. n. 
 
 " Strict personal service " means that the person against Sec - 1 (**) 
 
 whom the judgment or order is directed must have delivered 
 
 to him a true copy (/) of the judgment or order with its 
 
 indorsement, and at the same time the original judgnient 
 
 or order must be produced and shown to him (m). It is 
 
 not sufficient to show an office copy, for 0. LXVII. r. 1, is 0. LXVII. 
 
 express that, except in the case of an order for attach- r ' l ' 
 
 ment (n), it shall not be necessary to the regular service of 
 
 an order that the original be shown, if an office copy of it 
 
 be exhibited. 
 
 We shall see shortly that personal service of an in June- Injunction, 
 tion or order to abstain from doing anything is not neces- 
 sary to found an application for an order of committal. It 
 is sufficient in such case if the terms of the injunction can be 
 proved to have come to the knowledge of the person against 
 whom it is directed. The practice is the same where it is 
 sought to obtain a writ of attachment against a person for 
 breach of an injunction ; proof of personal service of that 
 injunction is not always necessary. 
 
 Again, an order for discovery need not be served per- Discovery, 
 sonally in the case where the parti/ against whom it is 
 made is represented by a solicitor, for by 0. XXXI. r. 22, O. TYTT. 
 " Service of an order for interrogatories or discovery or in- r ' "" 
 spection, made against any party on his solicitor, shall be 
 sufficient service on which to found an application for an 
 attachment for disobedience to the order (o). But the 
 party against whom the application for attachment is made 
 may show in answer to the application that he has had no 
 notice or knowledge of the order." 
 
 (k) Ee Cunnitigham, W. N. 1886, original. See Woodward v. Earl of 
 
 197. Lincoln, 3 Swanst. 626. 
 
 (1} Re Holt, 11 Ch. D. 168, where (n) The words "order for at- 
 
 the copy was deficient in not being tachment" appear to mean the 
 
 fully intituled, and the attachment order made giving leave to issue 
 
 was discharged. the writ. 
 
 (m) Query, whether the party (o) Joy v. Hadley, 22 Ch. D. 571. 
 served can demand to examine the
 
 2158 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 In other cases 
 personal ser- 
 vice essential. 
 
 Irregular ser- 
 vice. 
 
 Substituted 
 service. 
 
 0. LXVII. 
 
 r. 6. 
 
 Appearance 
 of counsel a 
 
 Time within 
 which per- 
 sonal service 
 must be made, 
 
 The terms of 0. XLI. r. 5, which we have just now re- 
 ferred to, are very wide and require, with the exceptions 
 above referred to, service on the person of every judgment 
 or order to do an act. Apart from that rule, altogether, 
 and as well-established practice, it has long been a principle 
 that personal service of all decrees and orders of which 
 disobedience is a contempt is necessary (q) . 
 
 Where there has been an irregularity in the service, for 
 example, where the judgment or order has been served 
 without the proper indorsement, the service may be effected 
 over again (r). 
 
 Where it is shown that the person is avoiding service, an 
 order for substituted service will be made (q) . At the 
 present time, substituted service is provided for by 
 0. LXVIL r. 6, by which, " Where personal service of any 
 writ, notice, pleading, summons, order, warrant, or other 
 document, proceeding or written communication is required 
 by these rules or otherwise, and it is made to appear to the 
 Court or a judge that prompt personal service cannot be 
 effected, the Court or judge may make such order for 
 substituted or other service, or for the substitution of notice 
 for service by letter, public advertisement, or otherwise, as 
 maybe just" (.s). 
 
 Appearance of counsel on an application for leave is, if 
 he consent to any step thereunder, such as an adjournment, 
 a waiver of any irregularity, in the service of the notice of 
 motion (t) . 
 
 Where personal service is required, it must be made 
 before the time limited ; subsequent service is irregular, 
 and proceedings taken thereon will be set aside (u). 
 
 (q) Elder v. Kidder, 12 Ves. 202 ; 
 Ee Lloyd, 10 Beav. 451. Note to 
 Morg. Ch. Acts, 4th ed. 490, n. (c), 
 for old authorities. 
 
 (r) Re Gregg, Ee Prance, L. R. 9 
 Eq. 137 ; Ee Sowen, 9 Jur. N. S. 
 612. 
 
 (s) Dan. Ch. Pr. 878. For Form 
 
 of Order, see Appendix, infra, No. 
 66. 
 
 (t] Ex parte Alcock, L. R. 1 
 C. P. D. 68. 
 
 (u) Adkins v. Bliss, 2 De G-. & 
 J. 286 ; Duffield v. Elwes, 2 Beav. 
 268. See Ee Gregg, Ee Prance, 
 L. R. 9 Eq. 137.
 
 THE WRIT OF ATTACHMENT. 239 
 
 SUB-SECT, (iii). The Motion for Leave to issue the Writ. sec'i'cSj. 
 
 Having dealt with the formalities with respect to the 
 judgment or order upon which a writ of attachment is 
 issued, we proceed to investigate the rules and practice 
 relating to its issue. 
 
 The application for bave to issue the writ under Application 
 0. XLIY. r. 2, above referred to, is made either by J^*' how 
 motion in Court (#) or by summons in chambers. In the 
 Chancery Division the application must be made by 
 motion (y], and this is the case wherever the judgment or 
 order, to enforce which the writ is applied for, may have 
 been made. In the Queen's Bench Division, where the 
 judgment or order has been made in Court, the application 
 should be also made by motion to the Court ; but where it 
 has been made in chambers, a summons may be issued, 
 returnable before the judge in chambers. This exercise 
 of jurisdiction by the judge sitting in chambers is autho- 
 rized by the judicial construction which has been placed 
 upon sect. 39 of the Judicature Act, 1873 (2). 
 
 The point has been raised that it is only necessary to Leave neces- 
 obtain leave in those cases mentioned in 0. LIL r. 2, cases, 
 where a writ could be applied for at common law ; but the Discovery, 
 contention was not sustained, and the rule was held to 
 apply to contempt of an order for discovery, a distinctly 
 equitable matter (a) . 
 
 The old rule absolute in the first instance for an attach- Attachment 
 ment against the sheriff cannot now be made, nor can any 
 similar proceeding be taken. The above 0. XLIY. r. 2, 
 applies, and notice must be given to him in the same way 
 as to other persons liable to attachment (b). 
 
 (x) O. LIT. rr. 1, 2. The motion (z) O. XXXI. r. 21, supra, p. 233. 
 
 is intituled in the action or matter. Litehfield v. Jones, 25 Ch. D. 64. 
 
 Masters v. Lowther, 11 C. B. N. S. (a) Salon Kyrburg v. fosnanski, 
 
 948. 13 Q. B. D. 218 ; Amstett v. Lesser, 
 
 (y) Knight v. Gardiner, "W. N. 16 Q. B. D. 187, per Wills, J. 
 
 1883, 162, V.-C. B. ; and see (b) Jupp v. Cooper, 5 C. P. D. 
 
 O. LV. r. 2. 26 ; Eynde v. Gould, 9 Q. B. D.
 
 240 
 
 CONCERNING METHODS OF EXECUTION*, ETC. 
 
 Book II. 
 
 Requisites of 
 the notice of 
 motion. 
 
 Motion day. 
 
 The copies 
 affidavits to 
 be served 
 with the 
 notice of 
 motion. 
 
 The notice required by 0. XLIV. r. 2, is the ordinary 
 notice of motion, which, however, must comply with 
 0. LII. r. 4, whereby " Every notice of motion . . . for 
 attachment . . . shall state in general terms the grounds 
 of the application ; and where any such motion is founded 
 on evidence by affidavit, a copy of any affidavit intended 
 to be used shall be served with the notice of motion" (c). 
 There must, as in the case of other motions, be two clear 
 days between the service of the notice of motion and the 
 day named in the notice for hearing the motion (d). The 
 requirement that the notice of motion should state in 
 general terms the grounds of the application is complied 
 with, if it refers to default in obedience of the order or 
 orders served therewith (e). 
 
 Care must be taken to name a proper motion day in the 
 notice. 
 
 The service of the copies affidavits with the notice of 
 motion is required by the rule (0. LII. r. 4), but the 
 omission to serve the copies simultaneously with the notice 
 is a trifling irregularity merely. Where, therefore, the 
 rule is substantially complied with by the service of the 
 copies two clear days before the day for which notice has 
 been given, an objection on the technical ground will be 
 disregarded (/). Affidavits relating to procedure merely, 
 for example, an affidavit of service, need not, perhaps, be 
 served under this rule (#). Though where the contemnor 
 
 335. There was another case where 
 a rule was absolute in the first 
 instance, viz., for non-payment of 
 costs on a master's allocatur. See 
 Ch. Arch. 13th ed. 1390, n. (p). 
 Such an order could not now be 
 made for the reason of the Debtors 
 Act, 1869. 
 
 (c) It need hardly be observed 
 that the person moving cannot de- 
 mand, on service of these copies, 
 that he should be paid for them, 
 the provisions of 0. LXVI. r. 7 (h), 
 
 (i), do not apply to this case. 
 
 (d) 0. LII. r. 5. 
 
 (e) Treherne \. Dale, 27 Ch. D. 66. 
 (/) Hampden v. Wallis, 26 Ch. 
 
 D. 746, per Chitty, J. 
 
 (g) Whitham v. Whilham, W. N. 
 1885, 176; Schirges v. Schirges, 
 W. N. 1886, 85 ; Re Wyggestvn 
 Arbitration, 33 W. R. 551. But it 
 is clearly an irregularity, although 
 not rendering the proceedings void. 
 O. LXX. r. 1 ; Petty v. Daniel, 34 
 Ch. D. 172.
 
 THE WRIT OF ATTACHMENT. 241 
 
 does not appear on the hearing of the motion, the order Chap. n. 
 for writ of attachment has been refused on this ground (h). 8ec - 1 ("*) 
 Again, where the copy of an affidavit, which the notice 
 stated was to be read in support of the motion, was not 
 served, the motion was ordered to stand over ('). 
 
 It is an irregularity to serve the notice of motion on Affidavits to 
 the London agent, and the copies affidavits on the country same'place'as 
 solicitor, but this does not render the proceedings neces- noti ce- 
 sarily ineffectual (&). 
 
 The notice of motion need not be served personally. Service of the 
 "Where the motion is intended to be made in an action, motion? 
 service of the notice on the solicitor on the record is treated 
 as service on the party. 0. XLIV. r. 2, enjoins simply o. XLIV. 
 " notice to the party," which in this case does not mean r ' 2 ' 
 personal service on him (/). The usual method of service, 
 where personal service is not required, is sufficient here, so 
 that, where there is no solicitor on the record, the notice 
 may be served by leaving it at the residence of the re- 
 spondent to the motion (m). 
 
 Where the application for a writ is not made in an 
 action, it is clear that there is no solicitor upon the record 
 upon whom service can be made ; the notice must then be 
 served upon the respondent (n). 
 
 (h) North, J., in Ee Lysaght, decisions of Jessel, M. R. See, 
 
 W. N. (1887), 23. The notice of also, 0. LXVIL r. 2 ; Joy v. 
 
 motion in this case stated that the Hadley, 22 Ch. D. 571 ; Howarth 
 
 affidavit would be read in support v. Hoivarth, 11 P. D. 95, in C. A. 
 
 of the motion. Bacon, V.-C., seems, however, to 
 
 (i) Not expressly to enable the have considered that personal ser- 
 
 applicant to serve the copy, but for vice of the notice of motion must 
 
 another purpose. Litchjield v. Jones, have been made upon the person 
 
 25 Ch. D. 64. in contempt, unless evidence was 
 
 () Petty v. Daniel, 34 Ch. IX. given that he could not be found. 
 
 172. Mann v. Perry, 50 L. J. Ch. 251 ; 
 
 (T) Browning v. Salin, 5 Ch. D. 44 L. T. N. S. 248 ; Richards v. 
 
 511 ; In re A Solicitor, 14 Ch. D. Kitchen, 25 W. R. 602. 
 152, in which latter case it was (m) In re A Solicitor, 14 Ch. D. 
 
 said that, in a suit, service on the 152. 
 
 solicitor was always treated as ser- (n) Howarth v. Howarth, 11 P. 
 
 vice on the party. These are both D. 95. 
 
 E. R
 
 242 
 
 Book II. 
 
 Judgment or 
 order, and 
 affidavit of 
 
 Substantive 
 evidence in 
 support of 
 application 
 for leave to 
 
 Contemnor 
 showing cans 
 against 
 motion. 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 The formal evidence to be adduced on the motion is as 
 follows : 
 
 Production must be made of the judgment or order (o) 
 which it is sought to enforce, and proof of its service. 
 The affidavit of service for this purpose should be precise 
 as to the person served, and as to the date and place of 
 service. It must also state that the order sought to be 
 enforced has been served duly indorsed (p). There is also 
 required an affidavit of service of the notice of motion, 
 which should in like manner be precise in matters of 
 detail. 
 
 The substantive evidence in support of the application 
 must show distinctly what the disobedience is, which is 
 only another form of stating that this, like every other 
 motion, must be supported by sufficient grounds (<?) . It is 
 a refinement, but appears true in principle, to say that, 
 where the applicant has a right to a writ of attachment 
 to compel obedience, proof of the fact of non-compliance 
 with the judgment is sufficient, though where a writ of 
 attachment is demanded, so that the dignity of the Court 
 may be vindicated, proof of the intentional disrespect to 
 the Court must be shown. 
 
 The person against whom the writ is asked may, of 
 course, show cause against the motion. It is here that 
 technical objections are of more avail than perhaps in any 
 other class of cases, and it is always open to the respondent 
 to take them (r). There seems to be, however, an increas- 
 ing disposition on the part of some of the judges to treat 
 
 (o) Or an office copy thereof. 
 O. XXXVII. r. 4. 
 
 (p) It is not necessary to make 
 the judgment or order an exhibit, 
 but it should be fully identified by 
 the affidavit. 
 
 (q) A good instance of the strict 
 proof required by the Court on 
 some motions for an attachment will 
 
 be found in Tayl. Ev. p. 1079, in 
 the case where a witness has com- 
 mitted a contempt of court in not 
 attending upon a subpoena. 
 
 (r) See the objections in such 
 cases as Lowten v. Mayor of Col- 
 chester, 2 Mer. 395 ; Bennett v. 
 Button, ibid. 400; Re Salt, 11 Ch. 
 D. 168. Vide infra, p. 244.
 
 THE WRIT OF ATTACHMENT. 243 
 
 irregularity, even in cases relating to the liberty of the chap. II. 
 subject; as capable of amendment, and to sustain orders Sec - * (*") 
 for attachment, notwithstanding that they have been 
 obtained on irregular proceedings (*). This tendency 
 of recent practice, in the opinion of the writer, is to be 
 regretted. Where no technical objections are open to the 
 respondent, and he proposes to fight the motion on the 
 merits of the matter, his evidence should be directed to 
 showing that there has in fact been no disobedience or 
 contempt committed by him. For, by reason of the prin- 
 ciple that the applicant has, in case of disobedience, a right 
 to the writ, it will not avail if the respondent simply 
 endeavours to excuse himself (t). However, if some good 
 and valid excuse be shown, even where the Court has no 
 discretion, it would probably, by means of adjourning the 
 motion, or in some other way, give the respondent a chance 
 of obeying the judgment. The fact of other methods of 
 execution being available undoubtedly weighs with the 
 Court, and therefore, if possible, the contemnor should 
 show that there is some other pertinent relief (it) . The 
 respondent's evidence will be considered and weighed by 
 the Court, which is, of course, at liberty to disbelieve the 
 tale he tells (#). 
 
 Where, however, the respondent relies on a technical 
 error in respect to the service, he should not appear on the 
 motion, for his appearance might be construed as a waiver; 
 but he should subsequently move to discharge the order 
 for attachment, if it be made (y). 
 
 The order made, if the application is granted, is in the 
 
 (*) See Petty v. Daniel, 34 Ch. D. (x) Treherne v. Dale, 27 Ch. D. 
 
 172. 66. See also, at common law, Be 
 
 (t) Principle of Barlee v. Barlee, Crossley, 6 T. R. 701. 
 
 1 Add. 301 ; Evans v. Bear, L. R. (y] Levi v. Buncombe, 1 C. M. & R. 
 
 10 Ch. 76. 737 ; Harvey v..Hall, L. R. 11 Eq. 
 
 (u) See the reasons influencing 31. But see Biddulph v. Gray, 5 
 
 Fry, J., in the analogous case of a Dowl. 406 ; Heywood v. Wait, 18 
 
 sequestration, Snow v. Holton, 17 "W. R. 205. 
 Ch. D. 433.
 
 244 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Intitulation of 
 proceedings. 
 
 Book II. form that the applicant " be at liberty to issue " a writ of 
 attachment (z), thus preserving the true nature of the 
 remedy, that it is a relief granted by way of execution to 
 the applicant. 
 
 The intitulation of the proceedings to attachment is fre- 
 quently of most material importance. The judgment or 
 order which it is sought to enforce must correspond strictly 
 in its heading with the proceedings of which it is the 
 result, and the copy of such judgment or order served on 
 the offending party must be in this respect exact () . The 
 order for the issue of the writ and the writ itself must in 
 like manner correspond exactly with the other proceedings. 
 Amendment. Where such an error has been made, however, it may be 
 amended, in some cases, on an application to the Court (i). 
 
 The costs of an attachment, including the costs of 
 motion for leave to issue, are in the discretion of the Court 
 under 0. LXY. r. 1, and should be asked for on the 
 application for the writ (c). These costs are, in flagrant 
 cases, ordered to be paid as between solicitor and client (d). 
 
 Costs of at- 
 tachment. 
 
 O. XLIV. 
 r. 1. 
 
 Effect of writ. 
 
 Direction of 
 writ. 
 
 SECT. 2. EFFECT OF THE WRIT. 
 
 By 0. XLIV. r. 1, "A writ of attachment shall have 
 the same effect as a writ of attachment issued out of the 
 Chancery Division has heretofore had." 
 
 The writ is directed to the sheriff, and the same general 
 rules with reference to its return and the liabilities of the 
 
 (z) See Appendix, infra, p. 426, 
 FormNos. 68, 69; Seton,1563 65; 
 Ch. Forms, p. 475. 
 
 (a) He Holt, 11 Ch. D. 168. 
 
 (b) Lowten v. Mayor of Colchester, 
 2 Mer. 395 ; and Bennett v. Button, 
 ibid. 400, where the order was 
 made only on payment of all costs 
 
 occasioned by the error, which was 
 of apparently a trivial character. 
 
 (c) Abndv. Hiches, 2 Ch. D. 528. 
 
 (d) Tdney v. Stansfield, 28 W. R. 
 582. And see, in a case of gross 
 contempt, Seall v. Smith, L. R. 9 
 Ch. 85.
 
 THE WRIT OF ATTACHMENT. 245 
 
 sheriff for breaches of duty under the mandate apply, as chap. it. 
 we have seen, in other cases (e). Sec - 2 (i). 
 
 The writ itself should, it is said, be written or printed 
 on parchment (/). It is considered as issued on the first 
 moment of the day on which it issues (#). It must be 
 indorsed with a recital of the particular contempt in respect 
 of which it is issued (h). 
 
 SUB-SECT, (i). The Arrest under the Writ. 
 
 The mandatory part of the writ is : " We command Authority 
 you to attach C. D. so as to have him before us in the w ^en bj the 
 
 Division of our High Court of Justice, &c." By this the 
 sheriff is authorized to seize or arrest the person sought to 
 be attached. No action of assault for such arrest can, 
 therefore, be brought against him, the writ being his 
 justification. There is no limitation as to the time of the 
 day or night when the arrest can lawfully be made, but an 
 arrest made on a Sunday is bad (i). 
 
 The sheriff may, in the execution of a writ of attach- Application 
 ment, break open the outer doors of a house. This is at f ,f mayne ' s 
 
 * CHiSp. 
 
 any rate true where the contempt is disobedience of an 
 order in the nature of a mandamus or injunction, and not 
 for the payment of money. For example, the sheriff must 
 break in and arrest a person who has disobeyed an order 
 to produce deeds (k). 
 
 (e) Book I., Chaps. I. and II., Myers, 1 T. K. 265. It was at one 
 
 supra. time questioned whether this enact- 
 
 (/) Braithwaite's Pr. 133. See ment applied to a tipstaff acting 
 
 generally, 1 Dan. Ch. Pr. 6th ed. under the Lord Chancellor's war- 
 
 883. rant, though the statute seems, 
 
 (ff) Stephens v. Neale, 1 Mad. clearly enough, to avoid an arrest, 
 
 550. even by him. Exparte Whitchurch, 
 
 (h) Forms of these indorsements 1 Atk. 58. See, also, judgment of 
 
 can be found in Braithwaite's Pr. Mr. Justice Bayley in Burdelt v. 
 
 167 et seq. Abbott, 14 East, p. 162 ; Samuel v. 
 
 (i) By the Lord's Day Act, 29 JBuller, 1 Ex. 439. 
 
 Car. 2, c. 7, s. 6. M'lleham v. (*) Harvey v. Harvey, 26 Ch. D. 
 
 Smith, 8 T. K. 86 ; The King v. 644.
 
 246 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. The case of privilege from arrest is analogous to that 
 of a closed house, so that such a privilege will not protect 
 a contemnor from arrest where the order has been made 
 against him punitively (A) . 
 
 It is a constitutional principle, that there is a clear 
 distinction in law between the cases where goods are taken 
 under a ./?./., and where the body of the debtor is taken 
 under a ca, sa. ; for although the goods may be retained on 
 an illegal seizure, the body cannot be detained on an 
 illegal arrest (i) ; but this principle, apparently for the 
 reasons we have mentioned, has no application to a writ of 
 attachment. 
 
 Attachment 
 bailable pro- 
 cess. 
 
 Sheriff's 
 duties on 
 arrest. 
 
 SUB-SECT, (ii). Imprisonment under the Writ. 
 
 The sheriff imprisons the contemnor under the writ so 
 as to have him safe in his custody. Since the Debtors 
 Act, 1869, the point is very unlikely to arise, but it is 
 clear that a writ of attachment is a bailable process (/), 
 and the sheriff may, if he chooses, take security for the 
 performance of the duty, but he is not compellable so 'to 
 do (7v) . The sheriff is certainly not responsible in damages if 
 the attached person is in Court to answer the contempt in 
 accordance with the exigency of the writ (/) ; and it is of 
 no consequence if such person has been free in the mean- 
 time. 
 
 By sect. 14 of 50 & 51 Viet. c. 55, provisions are made 
 for the duties of sheriffs' and other officers upon the arrest 
 of persons by virtue of any action, writ, or attachment for 
 debt (ni). 
 
 (h) In re Freston, 11 Q. B. D. 
 545 ; In re Dudley, 12 Q. B. D. 44. 
 
 (i) Hooper v. Lane, 6 H. L. C. 
 443, p. 482, Mr. Justice Crowder ; 
 1 S. L. C. 8th ed. pp. 128, 129 ; 
 9th ed. 129, 130. 
 
 (/) Danby v. Lawson, Prec. in 
 
 Ch. 110; Morris v. Ilayivard, 6 
 Taunt. 569 ; Dan. Ch. Pr. 887. 
 
 (k) Studd v. Acton, 1 H. Bl. 468. 
 
 (I) Lewis v. Norland, 2 B. & 
 Aid. 56. 
 
 (m) See section in the Act, Ap- 
 pendix III. p. 471, infra.
 
 THE WRIT OF ATTACHMENT. 247 
 
 The writ of attachment, even when executed by the chap. n. 
 arrest and imprisonment of the contemnor, in no wise 8ec - 2 (") 
 operates as a discharge to him (ri) ; his compliance with the 
 order must be full and complete (0). 
 
 When attached and imprisoned a person does not be- Situation of 
 come a criminal prisoner (p). He is to be treated as a ^(Sn^ 
 misdemeanant of the first division, within the meaning prisoned, 
 of sect. 67 of the Prisons Act, 1865 (<?). He is a prisoner 
 within the meaning of the Prisons Act, 1877 (r), and the 
 Secretary of State has, therefore, power to make rules to 
 secure such unrestricted and private communication between 
 him, his solicitor, and his friends, as may be possible, 
 having regard only to the necessity of preventing any 
 tampering with evidence, or any plans for escape, or other 
 like considerations (s) . The rules of the prison with refer- 
 ence to the same matter are apparently made in pursuance 
 of certain regulations contained in the schedule to the 
 Prisons Act, 1865 (t). 
 
 SOB-SECT, (iii). Detainer under a second Writ. 
 
 As in the case of every other execution, the writ is the Whether per- 
 justification for the act of the sheriff, and so long as the wrongly'can 
 writ stands, the person arrested under it is lawfully de- be attached 
 
 . under subse- 
 
 tained in custody. If, therefore, any other attachment is q uen t process, 
 issued against him, it can be executed (if at all) by detain- 
 
 (n) Eeg. \. Hemm-orth, 3 C. B. quarterly returns to the Lord Chan- 
 
 745. cellor of all persons in prison for 
 
 (o) Eeg. v. Weston, 8 Jur. 1122; contempt, with particulars of the 
 
 Vide supra, p. 226. nature of their contempts. Quar- 
 
 ( p) Though a person committed terly visitations of persons so im- 
 
 to prison summarily for acting as a prisoned are also enjoined. See 
 
 solicitor when he was unqualified 11 Geo. IV. & 1 Will. IV. c. 36, 
 
 is a criminal prisoner. Osborne v. ss. 2, 15, rr. 7, 8. 
 
 Milman, 18 Q. B. D. 471. (') 40 & 41 Viet. c. 21, s. 57. 
 
 (q) 28 & 29 Viet. c. 126 ; 40 & 41 (*) Under 40 & 41 Viet. c. 21, 
 
 Viet. c. 21, s. 41. There are cer- s. 39. 
 
 tain statutable regulations as to (t) See especially rules 54, 55.
 
 248 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. ing him (u} . The question of the legality of such detainer 
 is in some cases difficult to answer. Where the first writ 
 executed against him has been obtained irregularly, and, 
 therefore, illegally, his arrest, though lawful so far as re- 
 gards the sheriff, is unlawful so far as regards the party 
 who obtained the writ to be issued, and that party cannot 
 take advantage of his own wrong by causing a second writ 
 to be put into execution, and the contemnor to be detained 
 thereunder (x) . But on the general question whether the 
 detention would be legal under a second writ issued by a 
 third party, it is important to distinguish between the 
 nature of the contempt for which it is issued. Where the 
 contempt is a special contempt, the principles applied by 
 the Court are entirely different from those having prevail- 
 ing weight, where the process of attachment is issued by 
 one party in the way of execution against another. For 
 Solicitor's example, the privilege from arrest which a solicitor enjoys 
 arrest! 8 ' ^ when pursuing his business in going to and from a court 
 of justice, does not protect him when he disobeys an order 
 of the Court made against him in his character of solici- 
 tor (y) . On the other hand, it was held in Chancery, not- 
 withstanding conflicting decisions at law, that where a 
 debtor had been arrested under a ca. sa. illegally issued, his 
 detention under a subsequent ca. sa. was unlawful (s) . And 
 the distinction is otherwise clearly marked between the 
 principles guiding the Court in civil cases, where the 
 remedy of attachment is said to be equivalent to a capias 
 for enforcing the judgment of a Court of common law, 
 and in cases where the attachment issues for the purpose of 
 forcing a person to do his duty under the law () . Shortly, 
 the question of the extent to which a wrongful imprisonment 
 
 (u) As in Trotter v. Trotter, Jac. (z) Exparte Freston, 30 L. J. Ch. 
 
 533. 460 ; Bateman \. Freston, 30 L. J. 
 
 (x) Hall v. Hawkins, 4 M. & W. Q. B. 133 ; Chapman v. Freston, 30 
 
 590 ; Egginton's case, 2 El. & Bl. L. J. Ex. 89. The authorities are 
 
 717. fully referred to in these cases. 
 
 (y) In re Freston, 11 Q. B. D (a) Judgment of Brett, L. J., in 
 
 545. In re Freston, 11 Q. B. D. 545.
 
 THE WRIT OF ATTACHMENT. 249 
 
 under an attachment privileges the prisoner from detention Chap. n. 
 on other civil process may be said to be doubtful. Sec. 2 (iv). 
 
 SUB-SECT, (iv). Returns io the Writ. Scrjeant-at-Anm. 
 
 The usual returns to a writ of attachment are cepi corpus, Returns to 
 attached and sent to prison, non est inventus, and sick and wnt ' 
 ill, but in custody in his house (b). These returns are of 
 the simplest nature, and do not call for an investigation 
 similar to that we gave to the returns to writs of fi. fa. 
 Eeference should, however, be made to the effect of the &<> *t in- 
 return " non est inventus in my bailiwick." On this return aHcktion 
 
 being made, if the party prosecuting the contempt desires, fo 
 he can apply for an order for the serjeant-at-arms (c). This 
 order is obtained on an ex parte motion, the evidence in 
 support of which is, the order for writ of attachment to 
 issue, the writ of attachment, and the sheriff's return. This 
 mode of proceeding is preserved by the general terms of 
 0. XLII. r. 28, which enacts that " nothing in this order 
 shall take away or curtail any right heretofore existing to 
 enforce or give effect to any judgment or order in any 
 manner, or against any person or property whatsoever." 
 
 Serjeants-at-arms are officers of the Crown, whose duty Serjeant-at- 
 is nominally to attend the person of the sovereign, to arrest 
 traitors, and the like. One of these officials (by the sove- 
 reign's allowance) attends on the Lord Chancellor, and 
 thus, under the terms of sect. 77 of the Judicature Act, 
 1873, becomes attached to the Supreme Court (d). 
 
 "Upon the order for the serjeant-at-arms being granted, Cons. O. 
 the registrar is, on request, to draw up the order and deliver 
 
 (b) Almost the same as in the (d) Sweet's Law Dictionary 
 case of a ca. sa. See Chitty's Forms, Serjeants-at-Arms. The note is 
 p. 438. As to old practice on re- appended that theoffice of serjeant- 
 turn of languidus, bill taken pro at-armsattendingontheLordChan- 
 confesso, Culley v. Biittifant, 1 Ch. cellor is the same person as the 
 D. 84. See Appendix, infra, Forms serjeant-at-arms of the House of 
 Nos. 7073. Lords. The office of serjeant-at- 
 
 (c) Cons. 0. XXIX. r. 3. Form arms has no connection with that 
 of Order, Appendix, infra, No. 74. of tipstaff. Hinde, Ch. Pr. 123.
 
 250 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. the same to the serjeant-at-arms, or his deputy, who shall 
 thereupon endeavour to apprehend the party prosecuted, 
 and bring him before the Court. But if he cannot, no 
 such order for a serjeant-at-arms shall be discharged, nor 
 the contempt thereupon, without a certificate under the 
 hand of the serjeant-at-arms that his fees have been paid. 
 And after the said order shall have been so drawn up and 
 passed, no private or other agreement shall be made between 
 the party prosecuting the contempt and the person standing 
 in contempt, or on their behalf, for a compromise of the 
 suit or the discharge of the contempt, unless such satisfaction 
 shall be made, and a certificate thereof shall be produced 
 to the Court" (e). The serjeant-at-arms, in order to execute 
 process, obtains the Lord Chancellor's warrant, and a person 
 committed or brought up by the serjeant-at-arms for 
 breach of a decree or order cannot be released until he has 
 performed the decree or order in all things that are to be 
 immediately performed, and given such security as the 
 Court shall direct to perform the other parts of the decree 
 or order (if any) at the future days and times thereby 
 appointed (/). 
 
 This is the most stringent process for enforcing contempt 
 against the person which is known to the Courts, as it 
 stops all possibility of compromising the action until the 
 fees of the serjeant-at-arms have been paid. Practically, 
 it is seldom, if ever, resorted to. The writ of attachment, 
 or successive writs of attachment, fulfil the necessities of 
 most cases (g). 
 
 Motion to dis 
 charge order 
 
 or writ. 
 
 SUB-SECT, (v). Discharge of the Order for Writ. 
 
 Where any irregularity has taken place in obtaining the 
 Qrder for ^ igsue of ^ writ of attachment, the party 
 
 * * 
 
 (c) Cons. 0. XXX. r. 2. 
 (/) Cons. 0. XXIX. r. 4. 
 
 (g) The practice is to be found 
 in Morg. Ch. Acts and Orders, 4th 
 
 ed. p. 513 et scq. ; Dan. Ch. Pr. 
 6th ed. 889 et seq. ; Dan. Forms, 
 1007 et scq.
 
 THE WRIT OF ATTACHMENT. 251 
 
 prosecuted can at once move, on notice, to discharge it (/*). Chap. n. 
 Where the original judgment or order, for disobedience of Sec " 2 W- 
 which the writ has issued, has been wrongly or irregu- 
 larly made, proceedings must of course he taken by appeal, 
 or otherwise, to set that judgment or order aside. The 
 motion to discharge the order for the writ is based on 
 distinct and entirely different grounds. The mere fact Contemnorin 
 that the party prosecuted is in gaol makes of course no 
 difference to his capacity to move, nor to his right to be 
 heard (/). The order he applies for, if in custody, is not 
 only that the order to issue the writ be set aside, but that 
 he also be discharged (&). The motion for discharge of Priority O f 
 a prisoner from custody has priority over all other " 
 motions (/). 
 
 A trifling irregularity will suffice for the motion (m) ; What irregu- 
 f or example, where the writ was sued out for a sum greater 
 by a small amount than was due (n) ; though, perhaps, 
 where the writ is sued out against the contemnor in a 
 wrong name, in accordance with the judgment or order 
 which is also wrong, the arrest is good (0). 
 
 If the order is discharged, the writ becomes invalid; Effect of 
 but, as we have seen, the sheriff is not liable in damages, dLcharge<L 
 the writ, and not the order, being his justification. The 
 party prosecuting is responsible, technically, in damages, 
 and it is in the discretion of the Court to grant an inquiry 
 as to them ( p) . Leave to bring an action in respect of the 
 
 (A) Forms of notice of motion (1) Ashton v. Shorrock, 29 W. R. 
 
 and order, Appendix, infra, Nos. 117. 
 
 75, 76. At common law the ap- (in) Mackenzie v. Mackensie, 5 De 
 
 plication was by rule nisi. For G. & S. p. 342 ; lie Reynolds, 10 
 
 an example, Eeg. v. Burgess, 8 "VV. R. 709, where reference is 
 
 A. & E. 275. made to authorities at common 
 
 (i) Though it seems doubtful law. He Holt, 11 Ch. D. 168. 
 
 whether a habeas corpus can be (n) Daniel v. Bishop, M'Clel. 61. 
 
 issued to enable him to be brought (o) Fisher v. Jfaynay, 6 Sc. N. R. 
 
 up to move in person, ford v. 588, a case under a ca. sa. 
 
 Nassau, 1 Dowl. N. S. 631. (p) Re Reynolds, 10 W. R. 
 
 (k) Seton, 1595; Dan. Forms, 709, where inquiry refused. In 
 
 1017 et seq. ; Petty v. Daniel, 34 re Bryant, 4 Ch. D. 98 ; Dallas v. 
 
 Ch. D. 172. Glyn, 46 L. J. Ch. 51.
 
 252 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Motion for 
 setting aside 
 to be made 
 before fresh 
 step taken. 
 
 Notice of 
 motion to dis- 
 close objec- 
 tions pre- 
 cisely. 
 
 Objection to 
 substantive 
 order to be 
 alleged by 
 appeal. 
 
 wrongful execution is necessary (q) . Formerly, the writ 
 alone was discharged ; now it is the order giving leave to 
 issue the writ which is set aside. 
 
 With respect to the motion for setting aside the order as 
 irregular, it must be remembered that by 0. LXX. r. 2, 
 no application to set aside any proceeding for irregularity 
 shall be allowed, unless made within reasonable time, nor 
 if the party applying has taken any fresh step after know- 
 ledge of the irregularity (r). Further, by 0. LXX. r. 3, 
 " Where an application is made to set aside proceedings for 
 irregularity, the several objections intended to be insisted 
 upon shall be stated in the summons or notice of motion." 
 The statement must be precise; for example, it should 
 allege, if that is meant to be an irregularity relied on, that 
 the service of the affidavits in support of the motion for 
 order for issue of writ was not made at the proper place (s). 
 
 So long as the judgment or order under which a con- 
 tumacious person is attached stands, and is unobeyed, he 
 remains in contempt. If, therefore, the objection is that 
 the judgment or order is wrong, he must get it varied or 
 set aside, either in the Court where it was made, or on 
 appeal. Where there is any irregularity, either on the 
 face of the judgment or order, or in the service of it, or in 
 the process which we have been discussing, the contemnor 
 applies to the Court which ordered the writ of attachment 
 to issue to set the order and writ aside. 
 
 SUB-SECT, (vi). Habeas Corpus. 
 
 Habeas corpus. This part of our subject would be incomplete without a 
 reference being made to the writ of habeas corpus, and the 
 position of the person attached, with relation thereto. 
 This writ, although issuable as of right by any person, or 
 
 (q) Goucher v. Clayton, 14 L. T. 
 N. S. 494 ; Whitehead v. Lynes, 34 
 Beav. 161. 
 
 (r) The appearance of the defen- 
 dant is a "fresh step " within this 
 
 rule. Mtilckern v. Doerks, 53 L. J. 
 Q. B. 526. 
 
 (s) Petty v. Daniel, 34 Ch. D. 
 172, where other examples can be 
 found.
 
 THE "WRIT OF ATTACHMENT. 253 
 
 on behalf of any person who is imprisoned, is not issued Chap. II. 
 except on reasonable cause shown, that is to say, an ex 
 parte application must be made for it, and the reasonable 
 cause then shown (f). 
 
 There are various kinds of writs of habeas corpus The various 
 classified according to the purpose for which, in the corpus. 
 administration of justice, they are required (w). With the 
 prerogative writ of habeas corpus, which runs in all cases 
 of illegal confinement, and orders the production of the 
 prisoner, with the day and cause of his caption, before the 
 Court to abide the order of the Court, we have nothing to 
 do. It is clear that where the imprisonment is under a 
 judgment or order for commitment, or under a writ of 
 attachment, issued in pursuance of the power of a Court of 
 competent jurisdiction, this prerogative writ will not be 
 granted (z) ; otherwise one Court, now one Division of the 
 High Court, might stultify the proceedings of another. 
 But there are many purposes for which a person may 
 desire, and may have a right, to be brought before the 
 Court besides inquiring into the legality of his arrest, 
 or the jurisdiction of the Court which has committed or 
 attached him. The general nature of the purposes for 
 which the writ will issue is sufficiently indicated by 
 the names by which, under different circumstances, the 
 writ is known, e.g., ad satisfaciendum, ad testrficandum, 
 deliberandum, &c. (?/), and, broadly, by the statement that 
 the writ is necessary, where the person in contempt desires 
 himself to be brought before the Court in reference 
 to his contempt (s). There are numerous instances to be 
 
 (;) Hobhouse's case, 3 B. & Aid. (u) 3 Bl. Com. ed. 1876, 123. 
 
 420, -which is decided upon the (x) Burdett v. Abbott, 5 Dow. 
 
 principles of the opinion of "Wil- 165, p. 199; Ex parte Fernandez, 
 
 mot, C. J., given to the House of 31 L. J. C. P. 321 ; Anon., Cro. 
 
 Lords. "There is no such thing Car. 579; Bethel? s ease, 1 Salk. 
 
 in the law as writs of grace and 348 ; In re Dunn, 5 C. B. 215. 
 
 favour issuing from the judges. (y) 3 Bl. Com. ed. 1876, 123. 
 
 They are all writs of right, but (;) Seton, 1574. For forms, see 
 
 they are not all writs of course." Appendix, infra, Nos. 77 79.
 
 254 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Return to 
 habeas corpus. 
 
 found of applications for the writ under different circum- 
 stances (z) . 
 
 On the writ being returned by the sheriff, the whole of 
 the justification which he has for the custody and de- 
 tention will appear in the return itself. It is, therefore, 
 perfectly competent for the contemnor to raise before the 
 Court which has committed or attached him the legality 
 of his arrest, and in this manner obtain his discharge (a). 
 
 The application for the writ should be made to the 
 Division of the High Court, the order of which has been 
 disobeyed (&). 
 
 Order for dis- 
 charge. 
 
 Imprisonment 
 for contempt 
 in non-pay- 
 ment of costs. 
 
 SUB-SECT, (vii). The Order for Disc/targe from Custody. 
 
 Upon compliance with the judgment for disobedience to 
 which he is committed, the party may move for an order 
 for his discharge from custody. An order is necessary in 
 every case where the period of imprisonment has not run 
 out by effluxion of time (c) ; but where the writ has upon 
 it the note that imprisonment is not authorized for a 
 longer period than one year, no order is necessary as soon 
 as the year expires (d). 
 
 By reason of the Debtors Act, 1869, a person cannot 
 be imprisoned, nor kept in prison for a contempt, in dis- 
 
 (z) Where a person in prison 
 under a capias wished to be present 
 at the trial of an information laid 
 against him. Attorney -General v. 
 Fadden, 1 Price, 403. A solicitor 
 attached for contempt, in order for 
 him to attend taxation of a bill of 
 costs. Walsh v. Wilson, 2 Ir. Ch. 
 R. 79. 
 
 (a) "Where an appeal or a writ 
 of error lies, a habeas corpus will 
 not be granted. In re Dunn, 5 
 C. B. 215. 
 
 (b) In cases where the writ is 
 applied for on the ground that the 
 imprisonment is ultra the jurisdic- 
 
 tion of an inferior Court, the ap- 
 plication would properly be made 
 to the Queen's Bench Division. 
 Sect. 34, Judicature Act, 1873. 
 
 (c) Green v. Thompson, 1 S. & S. 
 121. 
 
 (d ) In re Edwards, Brooke v. Ed- 
 wards, 21 Ch. D. 230. Though an 
 order is still necessary where the 
 writ has not the note upon it. 
 Nalty \. Aylett, 43 L. J. Ch. 721 ; 
 In re Byrne, 6 L. R. Ir. 455 ; 
 Greaves v. Keene, 4 Ex. D. 73. 
 For forms of notice of motion and 
 orders, see Appendix, infra, Nos. 
 8082.
 
 THE WRIT OF ATTACHMENT. 255 
 
 obedience to an order for non-payment of costs (<?). The Chap. II. 
 payment of costs may, however, be made a condition Sec - 2 ( vn )- 
 precedent to his discharge, where he has been attached for 
 contempt and comes to the Court praying to be dis- 
 charged (/). And although a party cannot now be 
 attached for a contempt in non-payment of costs, he may 
 be committed therefor, after order duly made, under sect. 5 
 of the Debtors Act, 1869 (</). 
 
 SUB-SECT, (viii). Poundage. 
 
 The sheriff is not entitled to poundage upon money Poundage, 
 paid under a writ of attachment executed by him. It is 
 not clear that the stat. 28 Eliz. c. 4 excludes his right in 
 this case, but it has been the universal practice since that 
 statute not to levy or charge poundage (A). 
 
 (e) Jackson v. Mawby, 1 Ch. D. (/) In re M., 46 L. J. Ch. 24. 
 
 86. It has nothing to do with this (g) Hcwitson v. Sherwin, L. R. 
 
 that the order under which writ 10 Eq. 53. 
 
 issued was in respect of money (h) Rex v. Palmer, 2 East, 411 ; 
 
 payable within exceptions to sect. 4. Sex v. Sheriff of Devon, 3 Dowl. 10.
 
 256 
 
 Book II. 
 
 CONCERNING- METHODS OF EXECUTION, ETC. 
 
 CHAPTER III. 
 
 COMMITTAL. 
 
 Attachment. WHERE the jurisdiction of the Court is invoked for the 
 purpose of compelling the performance of an act, we have 
 seen that the appropriate process is a writ of attachment. 
 By attaching the person to answer for his contempt, 
 opportunity is given him, and he is constrained to perform 
 the duty required. The writ of attachment is, therefore, 
 in many cases, a true process of execution. 
 
 Committal. Where, however, there has been a breach of a judgment 
 
 or order, and the evil of disobedience has taken place, it is 
 clear that the jurisdiction in contempt is exerciseable for the 
 purpose only of punishment. The fact that the contemnor 
 may by means of that punishment be induced to make 
 reparation, is a collateral result, and not, in truth, execution 
 of the judgment or order at all. It is not possible to 
 lay down any definite rule in order to ascertain when 
 a writ of attachment is the only process available, and 
 when an order for committal should be obtained, for there 
 is no limit to the power of the Court to employ either the 
 one or the other remedy in any given case (a). There 
 would appear, however, to be some ground for the distinc- 
 tion that attachment is more properly used when it is 
 sought to enforce the performance of an act, but committal, 
 when mere punishment is intended (&), whether for breach 
 
 (a) See Piper v. Piper, W. N. 
 1876, 202, where on motion for 
 order to commit, order to issue writ 
 of attachment was granted. See, as 
 
 Bulst v. Bridge, 29 W. E. 117. 
 
 (b) But see Harvey v. Morris, 23 
 W. E. 21, 40, which was an order 
 for committal for disobedience to an 
 
 to the reason alleged in the case, order to deposit securities.
 
 COMMITTAL. 257 
 
 of an injunction or undertaking given in Court (c). But Chap. III. 
 although the line cannot be distinctly drawn, there are no 
 doubt a number of cases where, by the practice of the 
 Court, committal is usually and most conveniently em- 
 ployed. 
 
 By 0. XLIL r. 7, a judgment requiring any person to 0. XLII. r. 7. 
 do any act other than the payment of money, or to abstain 
 from doing anything, may be enforced by writ of attach- 
 ment or by committal. This rule fully recognizes what 
 we have just stated as to the power of the Court, and 
 apparently places the two processes on the same footing. Attachment 
 The rule would appear to justify the opinion of the late on g^e f 00 t_ 
 Master of the Rolls, that the distinction between them, that in - 
 is to say, in respect of the occasion when either the one or 
 the other is available, is practically abolished (d). The 
 practice in the two cases is still substantially different, and 
 we shall endeavour to show in what respects. We may 
 premise, that where on a motion for a writ of attachment 
 the Court is of opinion that the proper motion would be 
 for an order of committal, all parties being before the 
 Court, there is power to amend (e). 
 
 Committal may be said to be a proper remedy in three 
 classes of cases, which we shall take as the natural sub- 
 division of this Chapter : 
 
 Sect. 1. Where committal is sought by a litigating party 
 
 asking for relief ; 
 2. Where the jurisdiction by way of committal 
 
 is exercised in cases of what are known as 
 
 special contempts ; and 
 3. Where committal is employed as punishment 
 
 for not paying money within the powers 
 
 given by sect. 5 of the Debtors Act, 1869. 
 
 (c) 1 Seton, 297. v. Young, 56 L. J. Ch. 690. 
 
 (d) Harvey v. Harvey, 26 Ch. D. (e) Callow v. Young, 56 L. J. Ch. 
 p. 654, where Mr. Justice Chitty 690. SeeBuist v. Bridge, 29 W. R. 
 considered the matter. See Callow 117. 
 
 E.
 
 258 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II, 
 
 Committal as 
 a remedy for 
 disobedience. 
 
 What service 
 of injunction 
 necessary. 
 
 SECT. 1. COMMITTAL AS A METHOD OF BELIEF TO 
 LITIGANTS. 
 
 Where a person is restrained by judgment or order 
 from doing some act, if lie commits it he is guilty of a 
 contempt. The party interested in the observance of the 
 duty may apply for the punishment of the disobedient 
 person. This punishment may, of course, be inflicted by 
 writ of attachment ; but it is usual practice to move for the 
 contemnor's committal (/). There is no Rule of Court 
 which prescribes the method of making this application, 
 for the rule which provides that applications shall be by 
 motion only extends to those expressly authorized by the 
 Rules of Court (g] ; but there is no doubt that the proper 
 course is to move. The rules with respect to motions 
 generally apply. At the same time it must be remembered 
 that the Court has ample power, in a clear case and if 
 justice can thereby be done, to pronounce instant committal 
 on an application, ex partc, or at the Court's own instance, 
 without any notice to the contemnor (h}. 
 
 In order to found this motion there is no necessity that 
 the injunction, of which disobedience is alleged, should 
 have been personally served on the contemnor ; it is quite 
 sufficient if it be shown that he had notice of it ; for ex- 
 ample, by his being in Court at the time the injunction was 
 made (i). And he cannot escape the consequences of con- 
 tempt by retiring out of Court just when the judgment or 
 order is about to be pronounced (k). In short, any kind 
 of notice of the judgment or order, and the terms of it, 
 will render it compulsory and binding on the person 
 against whom it is made (I). 
 
 (/) See Suist \.Sridye, 29 W. E. phone Co. v. Dale, 25 Ch. D. 778; 
 
 Eider v. Kidder, 12 Ves. 202; De 
 Manneville v. De Manneville, 12 Ves. 
 203 ; Heywood v. Wait, 18 W. R. 
 205. 
 
 (k) Hearn v. Tennant, 14 Ves. 136. 
 
 (I) JE. g., by telegram ; He 
 
 117. 
 (y) O. LII. r. 1. 
 
 (h) Exparte Clarke,! Russ. &My. 
 563. 
 
 (i) Skip v. Harwood, 3 Atk. 564 ; 
 Anon., 3 Atk. 567; United Tele-
 
 COMMITTAL. 259 
 
 It is not necessary for contempt to be possible that the Chap. III. 
 order should have been drawn up or sealed, but it will 
 
 suffice if it has been simply pronounced (?.). At the same Order need 
 time, the order should be, where it is practicable, drawn up drawn up. 
 and served in order for the motion to be well founded. 
 
 To proceed to the motion itself. It should be made on The motion to 
 an ordinary motion or seal day (n), but there is nothing to commit - 
 prevent the Court exercising its jurisdiction at any time. 
 
 The practice laid down by Lord Eldon to be followed Personal ser- 
 in these cases is still applicable : " It is not the practice ^motion/ 
 in this Court for a man to show cause why he should not 
 stand committed. The motion ought to be that he shall 
 stand committed for breach of the injunction, and it 
 ought to be made upon personal service upon him that the 
 Court will be moved for that purpose. Where an in- 
 junction, the course is to move for an order that he shall do 
 it by a particular day or stand committed " (o). 
 
 It will be seen from this that the notice of motion must 
 be served personally The general principle has been thus 
 laid down : " In all cases in law and equity, with only 
 one exception, to bring a person into contempt, the service 
 must be personal ; the excepted case in equity is of a 
 subpoena to answer" (p). 
 
 Personal service of the notice of motion has been held Substituted 
 to be so essential that orders for substituted service were no'ticeTof 
 stated to have been made per incuriam and discharged (<?). motion. 
 The wide terms of 0. LXYII. r. 6 (r), permitting sub- O. LXVII. 
 stituted service of any notice, would, however, appear to r< 
 apply as well to notices of motion to commit as to other 
 
 Bryant, 4 Ch. D. 98, or by verbal 2 Dan. Ch. Pr. 6th ed. 1624, n. (a). 
 
 notice ; Vansandau v. Rose, 2 Jac. (o) Angerstein \. Hunt, 6 Ves. 
 
 & W. 264. See Woodward v. Earl 488. 
 
 of Lincoln, 3 Swanst. 626 ; Heywood (p) Mullens v. Williamson, 2 Moll, 
 
 v. Wait, 18 W. R. 205; Kimpton 380. See also Ellerton v. Thirsk, 1 
 
 v. Eve, 2 V. & B. p. 351. Jac. & W. 376. 
 
 (m) James v. Downes, 18 Ves. (q) Hope v. Carney ie, L. K. 7 
 
 . 522. Eq. 254. 
 
 (n) Saxby v. Saxby, 1 Sim. 140 ; (r) ride supra, p. 238.
 
 260 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Affidavit of 
 service. 
 
 notices, pleadings, and the like. Clearly, and apart from 
 this rule, however, in a proper case, substituted service 
 may be ordered (), specially where, as it has been ex- 
 pressed, part of the fraud consists in keeping out of the 
 way to avoid service (t) . 
 
 The motion is heard on the merits, the only formal 
 evidence required being, in case the respondent to the 
 motion does not appear, an affidavit of service of the 
 judgment or order, where practicable, and of the notice of 
 motion in every case. Care must be taken to set forth, in 
 the affidavits in support of the motion, precisely the acts 
 complained of (u). 
 
 Special con- 
 tempts^). 
 
 Disrespect in 
 face of the 
 Court. 
 
 Special con- 
 tempts in 
 which parties 
 are interested 
 directly. 
 
 SECT 2. SPECIAL CONTEMPTS. 
 
 A contempt of Court may be committed otherwise than 
 by disobedience of a judgment or order the Court has pro- 
 nounced. Disrespect shown in the face of the Court is such 
 a contempt, and is punishable at once by a summary order. 
 It is not so much to the particular interest of the litigants 
 before the Court that this species of contempt should be 
 punished. It is, therefore, here that the Court takes the 
 initiative, though it is quite within the power, if not the 
 province, of a suitor to call attention to a contempt of this 
 nature (y). 
 
 There are many special contempts which the litigants 
 have a clear interest in punishing. Examples are of every- 
 day occurrence : interference, by marriage or otherwise, 
 with a ward of Court ; interference with a receiver or other 
 
 (s) Pulteney v. Shelton, 5 Ves. 
 147 ; Francis v. Bailey, W. N. 
 1869, 142. 
 
 (t) Pearce v. Cfutehfleld, 14 Ves. 
 206. 
 
 (u) Morris v. Morris, 1 Hog. 238. 
 
 (ar) Seton, 1587. 
 
 (y) For instances where the 
 Court has taken the initiative, Mr. 
 Lcchmere Charlton's case, 2 My. & 
 Cr. 333 (where the procedure and 
 forms of orders are fully set out), 
 and Martin' 1 s case, 2 R. & My. 674.
 
 COMMITTAL. 261 
 
 officer of the Court ; publishing accounts of witnesses or Chap. III. 
 suitors, which reflect upon their behaviour or conduct in 
 giving evidence, and the like (z). In these cases the 
 process is the same as that in use for committal for breach 
 of an injunction, which we have already discussed. The 
 motion is made against the offending person on notice 
 being served personally upon him (<?). 
 
 SECT. 3. THE ORDER FOR COMMITTAL AND ITS EFFECT. 
 
 As will immediately appear, the process for committal The order for 
 under the Debtors Act, 1869, is regulated by different rules injunctions 
 from those which we have in this Chapter hitherto discussed. and special 
 
 i . . contempts. 
 
 Postponing, therefore, the consideration of that particular 
 process, we may state that in all cases of committal it is 
 ordered that the person offending " do stand committed to 
 (Holloway) prison for his said contempt." In cases of 
 contempt by breach of an injunction, an order for actual 
 committal is not generally pressed for or directed, the more 
 usual order being for the respondent to pay the costs of the 
 application, though not committed (b). It would serve, 
 after all, but little good purpose to imprison a man, ex post 
 facto, for breach of a duty due to another ; such a proceeding, 
 as has been pointed out, is not execution strictly so called. 
 It should appear by the order of committal precisely what Recital of 
 the act of contempt is, and the adjudication of the Court a JU 
 thereon, otherwise the order is technically informal, as it 
 does not sufficiently justify an imprisonment under it (c). 
 The adjudication is sufficiently recited, however, if it appear 
 from the recital of another order where it was in fact 
 found (d). There is authority for the statement, that the 
 
 (z) Seton, 1587. (*) Seton, p. 1588. 
 
 (a) For forms of notice of motion (c) Ex parte Van Sandau, I Phil, 
 
 and order to commit, see Appendix, 445, 605. 
 
 infra. Forms, Nos. 83, 84. (d) Gobbet? s case, 7 Q. B. 187.
 
 262 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Motion to dis- 
 charge order 
 for committal. 
 
 Contemnor 
 imprisoned 
 under autho- 
 rity of the 
 order. 
 
 The tipstaff. 
 
 order of committal is irregular and can be discharged if it 
 is deficient in not stating the affidavit of service of the 
 order, the notice of motion to commit, or the fact that the 
 defendant had appeared on the motion (e). 
 
 "Where the order has been obtained irregularly, or is 
 on its face informal in respect of any of the matters which 
 we have just referred to, a motion may be made to dis- 
 charge it, just as in the case of an informal or irregular 
 order for the issue of a writ of attachment. 
 
 The contemnor may be detained in prison by the autho- 
 rity of the order of committal alone, if it is good (/). No 
 warrant or writ under the order is necessary, that is to 
 say, he has no right to his discharge on the ground of the 
 absence of either document. The return, therefore, to a 
 habeas corpus that the prisoner remained in custody under 
 an order (fully recited) of a Court of competent jurisdic- 
 tion, without setting out any warrant in the return, was held 
 to be good, and the prisoner not entitled to his discharge (g] . 
 
 The usual practice is, however, for a warrant to be 
 prepared under the order, and directed to the tipstaff of 
 the Court (h). The tipstaff is an official appointed under 
 sect. 10 of 25 & 26 Yict. c. 104 (i). Under sect. 77, Jud. 
 Act, 1873, he is transferred to and has become an officer of the 
 Supreme Court (&). The new regulations as to the officers 
 of the Supreme Court, made under sect. 20 of Supreme Court 
 of Jud. Act, 1881 (/), do not provide for the appointment of 
 tipstaffs. It is presumed, however, as the present holders 
 
 (e) Stephens v. Workman, 11 
 W. R. 503. 
 
 (/) See Ex parte Whitchurch, 1 
 Atk. 55. 
 
 (ff) In the matter of Clarke, 2 
 Q. B. 619 ; Carus Wilson's case, 1 
 Q. B. 984, p. 1016. 
 
 (h) For form of warrant, see 
 Appendix, infra, No. 85. 
 
 (i) As to the appointment of 
 four of the tipstaffs, formerly, see 
 Tidd's Pr. pp. 53, 54, 59, and 
 
 reference to Report of H. L. 
 1798. 
 
 (A) There were formerly seven 
 tipstaffs. Their pay and duties are 
 specified in the 2nd R,ep. Legal 
 Dep. Comm. 1874, p. 20. The 
 report recommends that their duties 
 should, in the future, be performed 
 by the senior usher, which recom- 
 mendation has not altogether been 
 carried out, as appears in the text. 
 
 (0 44 & 45 Viet. c. 68.
 
 COMMITTAL. 263 
 
 of the office cease to perform their duties, by retirement or Chap. III. 
 otherwise, the number of tipstaffs will be decreased, and ec ' ' 
 the office then given to some well-recognizable official in the 
 Royal Courts. 
 
 The tipstaff's justification and authority is contained in The warrant 
 the warrant usually made out and addressed to him, just 1 
 as the writ is the justification and authority of the sheriff. 
 It must, therefore, set forth sufficient to justify the im- 
 prisonment. It is sufficient to recite the adjudication of a 
 competent Court, without setting forth the facts in which 
 the contempt consisted (m). But where it recites an order 
 which is clearly informal and bad, the warrant will be 
 no justification (n}. Again, it should state the Court or 
 judge who made the order (o). The warrant being for the 
 protection of the tipstaff is procured by him (p). 
 
 SECT. 4. THE DIFFERENCE BETWEEN COMMITTAL AND 
 
 ATTACHMENT. 
 We are now able to ascertain with greater clearness Difference 
 
 such distinction as remains between the effect of a writ ^tyee 11 com- 
 mittal and 
 
 of attachment and the effect of committal. attachment. 
 
 In a recent case a motion was made for leave to issue Committal 
 a writ of attachment on breach of an undertaking. The for breafc^of 
 objection was taken that an order for committal was the undertaking, 
 proper remedy in such a case. Mr. Justice Chitty decided 
 that the objection was well founded, but gave leave to 
 amend the notice of motion by asking, in the alternative, for 
 committal (q) . It is suggested that, notwithstanding this 
 decision, but little real substantial distinction between the 
 effect of the two processes subsists. 
 
 In the first place, the writ of attachment is directed to Attachment, 
 the sheriff ; the order of committal is carried out by the 
 
 (m) Exparte Fernandez, 10 C. B. Q. B. 773. 
 
 N. S. 3. (p) A form is given in the Ap- 
 
 () Green v. Elgie, o Q. B. 99. pendix, infra, p. 433, Form No. 85. 
 
 (o) Van Sandau v. Turner, 6 (q) Callow \. Young, -56 L. T. 147.
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. tipstaff. But the consequences to the contemnor are the 
 C mmittal same, and the same proceedings are necessary to obtain his 
 tipstaff. discharge. 
 
 Difference in Where a motion is made for leave to issue a writ of 
 notice ot attachment, personal service of the notice is not necessary, 
 motion. k u t personal service of the order is, for disobedience of 
 
 which it is sought to issue the attachment. In the case of 
 a motion to commit, personal service of the injunction or 
 order is not necessary, but personal service of the notice of 
 motion is. This appears to be the greatest practical dif- 
 ference now existing. 
 
 Attachment Leaving questions of mere practice, there are, or have 
 
 mittal not?" " been, other differences. We have already seen that on a 
 
 writ of attachment the sheriff may take bail. Where a 
 
 person is committed into the custody of the tipstaff that 
 
 officer has no such power (r). 
 
 Attachment We have seen in the preceding Chapter, as to the nature 
 ties^com^" ^ a contempt, that, as against parties to a suit in equity, 
 mittal against the enforcement of the decree was a matter of right in the 
 persons interested, who could therefore proceed by way of 
 process for contempt as the means of execution. In these 
 cases the writ of attachment, issued at the risk of the 
 person suing it out, was the appropriate remedy. Where, 
 however, relief was claimed by a party against other 
 parties not present in Court, or against other persons, 
 whether officers of the Court or not, who were not parties 
 to the cause, the pertinent remedy was by order of com- 
 mittal (). This practice was varied by C. 0. XXIX. r. 8, 
 giving power to parties to issue writs of attachment against 
 any person, but this rule was, again, abrogated by r. 2, 
 made under the Debtors Act, 1869 (t). To keep in strict 
 accord with the ancient practice of the Court of Chancery, 
 
 (>) Buist v. Bridge, 29 W. R. 1 1 7. ment was made against persons not 
 
 (s) Re O'Reilhjs, 2 Hog. 20; parties, it followed that they should 
 
 Lansdown v. Elderton, 14 Ves. 512 ; be heard not upon motion in the 
 
 Re BelVs Estate, Foster v. Bell, cause, but upon petition. Nichol- 
 
 L. K. 9 Eq. 172. son v. Squire, 16 Ves. 260. 
 (t] Since the order for commit-
 
 COMMITTAL. 265 
 
 it is clear that, in analogous cases to those last instanced, Chap. III. 
 
 the procedure for enforcement of an order should be Sec ' 4 ~ 
 
 by order of committal and warrant thereon. Since, how- 
 
 ever, the provisions of 0. XLIY. r. 2, render it imperative 
 
 that the leave of the Court should always be obtained 
 
 before a writ of attachment can be issued, there seems to 
 
 be no reason for the contention that any substantial differ- 
 
 ence between attachment and committal, on the ground 
 
 that the latter is more properly applicable against persons 
 
 who are not parties, still subsists. 
 
 Formerly, there would appear to have been a difference Difference in 
 between the effect of attachment and committal where it eorp* ad 
 
 was desired to apply for a habeas corpus ad subjiciendum. sul> J- 
 
 When a person has been committed by a Court of compe- No writ on 
 
 tent jurisdiction, a writ of habeas corpus, unless the order of committal 
 
 committal is bad on its face (u), will not be granted. The 
 
 contemnor has been found guilty of a contempt, and if he 
 
 desires to call into question the justice of the sentence, he 
 
 must raise the question by appeal from the judgment or 
 
 order, and not on the return to a habeas corpus. This has 
 
 always been established practice. When, however, writs Formerly the 
 
 of attachment were issuable as of right and without leave, 
 
 it might well happen that the writ was issued improperly granted after 
 and illegally. It will be observed that the writ contains 
 no recital of the judgment or order on which it is founded, 
 and, therefore, on proper evidence being given of illegal 
 custody, there is no doubt, on principle, that the injured 
 person might have had his writ of habeas corpus. Now, 
 however, no attachment is issued without an adjudication 
 that the contemnor is in contempt, and this distinction 
 between the two processes has disappeared. 
 
 The state of things formerly existent was exemplified by 
 the older practice in Chancery. Where a person was in 
 custody for contempt, he must have come to the Court 
 committing him by petition, but where he was in custody 
 
 (u) As in Green v. Elgie, 5 Q. B. 773.
 
 266 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. under a writ of attachment, he might have applied to set 
 the writ aside in the Court issuing it, or, where that writ 
 was illegally issued, for a habeas corpus. 
 
 Power of 
 
 Act, 1869. 
 
 Transfer of 
 
 SECT. 5. COMMITTAL UNDER DEBTORS ACT, 1869, s. 5. 
 
 We have seen (x) that sect. 4 of the Debtors Act, 1869, 
 abolished imprisonment for non-payment of money in all 
 but certain excepted cases. Sect. 5 of the Act, however, 
 en( lowed the Court with an entirely new power of corn- 
 mittal. That section enacts in substance as follows : That 
 subject to the provisions hereinafter mentioned, and to the 
 prescribed rules, any Court may commit to prison, for a 
 term not exceeding six weeks, or until payment of the sum 
 due, any person who makes default in payment of any 
 debt, or instalment of any debt, due from him in pursuance 
 of any order or judgment of that or any other competent 
 Court, and further provides the restrictions under which 
 such power shall be exercised. A comparison of this sec- 
 tion with sect. 4 will show that committal under it is in 
 the nature of a discretionary committal for contempt. 
 
 The jurisdiction thus given is now assigned to and exer- 
 
 cised b J the i ud g e of the Hi g h Court to whom bankruptcy 
 business is assigned (y) ; and this further power given to 
 him, that "Where, under sect. 5 of the Debtors Act, 1869, 
 application is made by a judgment creditor to a Court 
 having bankruptcy jurisdiction for the committal of a 
 judgment debtor, the Court may, if it thinks fit, decline to 
 commit, and in lieu thereof, with the consent of the judg- 
 ment creditor, and on payment by him of the prescribed 
 fee, make a receiving order against the debtor. In such 
 
 (x) Supra, p. 218. 
 (y) 46 & 47 Viet. c. 52 (Bank- 
 ruptcy Act, 1883), s. 103 (i.), and 
 
 Lord Chancellor's Orders, 1st Jan. 
 1884, 4th March, 1885.
 
 COMMITTAL. 267 
 
 case the debtor shall be deemed to have committed an act Chap. in. 
 of bankruptcy at the time the order is made " (2). ec ' ' 
 
 The rules regulating the practice under this section are 
 General Eules in Bankruptcy (a), Eules 355 362. The 
 mode of proceeding is by a summons, leave to issue which 
 must be obtained from the judge in bankruptcy (I). 
 
 The practice under this sect. 5 is sufficiently discussed 
 in books of Bankruptcy Practice (b), and calls, therefore, 
 for little comment here. It should be stated, however, to 
 show the extent of jurisdiction assumed by the Courts in 
 this particular, that the words " debt or instalment of any Debt or in- 
 debt " have received a judicial construction. The phrase *ny debt 
 does not mean that a sum must have been recovered under 
 a judgment by A. from B. (c). Any order to pay a sum 
 or sums of money appears to be within the section (d). 
 The Court can order the committal of a debtor who is 
 such within the terms of the section, notwithstanding that 
 the liability is not proveable in bankruptcy, and that there 
 is no jurisdiction to adjudicate him a bankrupt in respect 
 thereof (?). 
 
 The section gives power to commit persons under a Persons under 
 disability when judgment is once signed against them ; for 
 example, a married woman (/). 
 
 It is a question whether sect. 103, above mentioned, has 
 taken away from the ordinary judges the power and juris- 
 diction given them by sect. 5 of the Debtors Act (g). 
 
 (z) Sect. 103 (5). (e) Ex parte Fryer, Re Fryer, 17 
 
 (a) Dated 22nd Sept. 1886. Q. B. D. 718, where it is shown 
 
 (b) Rule 356. See Tate-Lee & that the jurisdiction to adjudicate 
 "Wace on Bankruptcy for the prac- in bankruptcy under sect. 103, 
 tice generally. above mentioned, is not co-exten- 
 
 (e) Hewitson v. Shericin, L. B. sive with the jurisdiction to com- 
 
 10 Eq. 53, where an order to pay mit. 
 
 costs was held to be within the (/) Dillon v. Cunningham, L. R. 
 
 section. 8 Ex. 23. 
 
 (d) An order to pay alimony. (g) Genese v. Lascettes, 13 Q. B. 
 
 Linton v. Linton, 15 Q. B. D. 239. D. 901.
 
 268 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 CHAPTER IV. 
 
 THE WRIT OF SEQUESTRATION. 
 
 SECT. 1. THE NATURE OF THE WRIT. 
 
 THE third and last process of execution available against 
 Nature of the persons in contempt is the writ of sequestration. The 
 wn ' nature of this writ is thus described in a leading text book : 
 
 " The process of sequestration is a writ directed to certain 
 persons, nominated by the person prosecuting the judgment 
 or order, empowering them to enter upon the real estate of 
 the disobedient person, and to receive, sequestrate, and 
 take the rents and profits thereof, and also his personal 
 estate, and keep the same under sequestration in their 
 hands until he shall have performed the act required and 
 cleared his contempt" (a). 
 
 Stringency of This is the most stringent process of execution against 
 tion property known to or issued by the Courts. It is a pro- 
 
 ceeding put in motion in order to attach whatever property 
 the contemnor has into the custody of officers appointed by 
 the Courts for the purpose (b) . The only process of execu- 
 tion which it somewhat resembles is the appointment of a 
 receiver, considered in a subsequent Chapter (c). 
 
 (a) Dan. Ch. Pr. 912. It would it is " neither in form nor in sub- 
 be more correct to say, "until stance an execution." The pro- 
 further order of the Court." Vide ceeds are simply in custodia leg is, to 
 form of writ, infra, and Wharam v. abide the order of the Court. 
 Broughton, \ Ves. sen. 181. Burne v. Robinson, 7 IT. Eq. E. 
 
 (b) See Wharam v. Broughton, 1 188. But quoad the landlord, it is 
 Ves. sen. 181. From the point of an execution. Dixon v. .Smith, 1 
 view of the person who sets the Swans. 457. 
 
 process of sequestration in motion, (c) The most important differ-
 
 THE WRIT OF SEQUESTRATION. 
 
 269 
 
 Chap. IV. 
 ec ' ' 
 
 The essence of the writ of sequestration is that it is 
 issued in order to constrain a person who is in con- 
 tempt (e?). Where, as in most cases, the contempt consists 
 in the non-payment of money, the Court has, as will be 
 seen, assumed a jurisdiction to apply the property in the 
 hands of the sequestrators to the satisfaction, in whole or 
 in part, of the amount due (e) . This is not done under 
 or in reality by virtue of the writ itself, but by further 
 order of the Court. 
 
 There were two processes at law which bore some Distringas and 
 resemblance to the writ of sequestration (/), viz., the writ 
 of distringas (g), and the writ of capias utlagatum cum breve 
 de inquirendo (A). The consideration of these two writs 
 does not come within the purview of this work. 
 
 The writ was first introduced or invented in Sir Nicholas 
 Bacon's time (i). It is, therefore, of comparatively modern 
 origin (). 
 
 ences between the office of receiver 
 and that of sequestrators are, first, 
 the greater immunity the last- 
 mentioned persons have; and, se- 
 condly, a receiver is appointed in 
 respect of certain property named 
 in the order, whereas sequestrators 
 have no limitation placed upon 
 them as to the property of which 
 they may take possession . Seques- 
 trators and receivers compared in 
 some points, Angel v. Smith, 9 Ves. 
 335. 
 
 (d) Contempt of all decrees in 
 Chancery. Beddingjield v. Zouch, 
 Freem. Ch. R 168. 
 
 () See the remark of Jessel, 
 M. E,., as to the meaning of the 
 word "sequestration" insect. 163, 
 Companies Act, 1862, In re Aus- 
 tralian Direct Steamship Navigation 
 Co., L. R. 20 Eq. 325. 
 
 (/) The writ must not be con- 
 
 fused, it is almost unnecessary to 
 say, with seqitestrari de bonis eccle- 
 siasticis. See Ward v. Hayes, 1 
 Hog. 107. 
 
 (y) 1 Ves. sen. p. 183. 
 
 (h] See Form ciii. to Corner's 
 Crown Practice, and note to 4 Ves. 
 p. 738. 
 
 (*) See Hinde, Ch. Pr. 128 ; 1 
 Vern. 421 ; Hide v. Pettit, 1 Ch. 
 Ca. 91. " Sequestrations were not 
 heard of till the Lord Coventry's 
 time, when Sir John Read lay in 
 the Fleet (with 10,0007. in an iron 
 cash chest in his chamber) for dis- 
 obedience to a decree, and would 
 not submit and pay the duty. 
 This being represented to the Lord 
 Keeper as a great contempt and 
 affront put upon the Court, he 
 authorized men to go and break up 
 
 (k) See note (k), infra.
 
 270 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. The primary purpose of the writ being, as we have seen, 
 
 Lies only ^ en f rce obedience in cases of contempt (I), it is not 
 
 where there is applicable to enforce a mere judgment or order for recovery 
 
 of land or money where no contempt has been com- 
 
 mitted (m) . This elementary proposition of law was over- 
 
 looked in a recent case until it came before the Court of 
 
 Appeal, where the expressions of opinion of the Lords 
 
 Justices sufficiently show their astonishment at the writ 
 
 having been issued at all in respect of a simple judgment 
 
 for money (). 
 
 Form of writ rj\-^ Q p rescr ik e( j_ form of the writ of sequestration is as 
 
 of sequestra- r 
 
 tion. follows (0) : 
 
 Victoria by the grace of Grod, &c. 
 
 To [names of not less than four commissioners'] greet- 
 
 ing: 
 
 "Whereas lately in the Division of our High Court 
 
 of Justice, in a certain action there depending, wherein 
 A. B. is plaintiff and C. D. and others are defendants [or, 
 in a certain matter then depending, intituled " In the 
 matter of E. F.," as the case may be] by a judgment [or 
 
 his iron chest, and pay the duty (I ) It has been said, with ref er- 
 
 and costs, and leave the rest to ence to the construction of a par- 
 
 him, and discharged his commit- ticular statute, that sequestration is 
 
 ment. From thence came seques- not a part of the process for con- 
 
 trations." North's Life of Guil- tempt. Tatham v. Parker, 1 Sin. 
 
 ford, ed. 1826, i. p. 420. & G. 506, V.-C. Parker. The pro- 
 
 (k) The writ provoked great cess of sequestration was never 
 
 hostility in the Courts of common confined, however, to execution of 
 
 law. It was even said that seques- decrees for non-payment of money. 
 
 trators were illegal, and that to Beddingfield v. Zouch, Freem. Ch. 
 
 kill a sequestrator was no murder. R. 168 ; Lupton-v.Hescott, 1 S. &S. 
 
 These are characterized as " bloody 274; He Hassenclever, 1 Bro. C. C. 
 
 and desperate resolutions." Gilb. 434. 
 
 For. Rom. 78. See also 3 Swanst. (m) 3 Bl. Comm. ed. 1876, 419. 
 
 280 ; ibid. 308, whence it appears () Ex parte Nelson, Re Hoare, 
 
 that the power of the Court of 14 Ch. D. 41. See Willcock v. 
 
 Chancery to sequester was ques- Terrell, 3 Ex. D. 323. 
 tioned in the House of Lords, date (o) O. XLII. r. 14, Appendix H. 
 
 1670. But see Beddingfield v. No. 13. See Appendix, infra, 
 
 Zouch, Freem. Ch. R. 168. p. 434, Form No. 87.
 
 THE WRIT OF SEQUESTRATION. 271 
 
 order, as the case may be] of our said Court made in the chap. IV. 
 said action [or matter], and bearing date the day of _ 
 
 18 , it was ordered that the said C. D. should 
 [pay into Court, to the credit of the said action, the sum 
 of , or as the case may be~\. 
 
 Know ye, therefore, that we, in confidence of your pru- 
 dence and fidelity, have given, and by these presents do give, 
 to you, or any three or two of you, full power and authority 
 to enter upon all the messuages, lands, tenements, and real 
 estate whatsoever of the said C. D., and to collect, receive, 
 and sequester into your hands not only all the rents and 
 profits of his said messuages, lands, tenements, and real 
 estate, but also all his goods, chattels, and personal estates 
 whatsoever ; and, therefore, we command you, any three 
 or two of you, that you do, at certain proper and con- 
 venient days and hours, go to and enter upon all the 
 messuages, lands, tenements, and real estate of the said 
 C. D., and that you do collect, take, and get into your 
 hands not only the rents and profits of his said real estate, 
 but also all his goods, chattels, and personal estate, and 
 detain and keep the same under sequestration in your 
 hands until the said C. D. shall [pay into Court, to the 
 credit of the said action, the sum of , or as the case 
 
 may be~\ clear his contempt, and our said Court make other 
 order to the contrary. 
 
 WITNESS, &c. (p). 
 
 (p) It should be noted that there 123; Rawlinson v. Stringer, 1867, 
 is no direction to return this writ. R. No. 100, vide Dan. Ch. Pr. 
 See Goldsmith v. Goldsmith, 5 Hare,
 
 272 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Formerly 
 issuable in 
 last re8ort 
 only. 
 
 When issu- 
 able. 
 
 Notice of 
 motion for 
 leave to issue 
 sequestration. 
 
 SECT. 2. PRACTICE ON ISSUE OF WRIT AND ON APPLICA- 
 TIONS CONSEQUENT THEREON. 
 
 Formerly, this writ only issued by order of the Court, 
 and where the person against whom the decree or order 
 had been made had stood or " sat " out all other process of 
 contempt, or could not be found (q) . By sect. & of the 
 Debtors Act, 1869 (r), however, sequestration against the 
 property of a debtor may, after the commencement of the 
 Act, be issued by any Court of equity in the same manner 
 as if such debtor had been actually arrested (s) . 
 
 The writ is issuable in certain cases under and by virtue 
 of the rules of court. It is, of course, still available in 
 other cases of gross contempt, and then the leave of the 
 Court must be obtained, due cause being shown on motion 
 before it can be issued. What we have already stated with 
 reference to the motion for leave to issue writ of attach- 
 ment, the service of notice thereof, and the like, will apply 
 equally to motion for leave to issue sequestration (t). 
 
 The provisions, however, of 0. LIL r. 4, do not apply 
 to the notice of motion for leave to issue a writ of seques- 
 tration as they do to the notice of motion for writ of 
 attachment. It is not necessary, therefore, that the notice 
 should set forth the grounds on which the sequestration is 
 about to be applied for (u) . It seems to be the better 
 practice, unless in an important or complicated case, to 
 apply for leave to issue on a summons in chambers, and 
 not on motion (x). 
 
 (q) See Beanies' Ch. Ord. p. 15 ; 
 Gilb. For. Rom. 79 ; Wenman v. 
 Osbaldiston, 2 Bro. P. C. 276. 
 
 (r) 32 & 33 Viet. c. 62. 
 
 (s) Sykes v. Dyson, L. R. 9 Eq. 
 228. As to what jurisdiction was 
 conferred by the statute, see Hodg- 
 son v.Hodgson, 23 Beav. 604 ; Miller 
 v. Miller, L. R. 2 P. & M. 54. 
 
 (t) Forms of notice of motion, 
 
 Appendix, infra, Nos. 88, 89. 
 Query, whether in all cases the 
 notice should be served. Monk v. 
 Lawlor, 1 Jones, 554. 
 
 (u] Selous v. Cray don Rural Sani- 
 tary Authority, 53 L. T. N. S. 209. 
 
 (x) Snow v. Bolton, 17 Ch. D. 
 433 ; Selous T. Croydon Rural Sani- 
 tary Authority, 53 L. T. N. S. 209.
 
 THE WRIT OF SEQUESTRATION. 273 
 
 The rules relating to sequestration are as follows : By Chap. IV. 
 0. XLTL r. 4, "A judgment for payment of money into 
 
 Court may be enforced by writ of sequestration, or, in cases - XLII. r. 4. 
 in which attachment is authorized by law, by attachment." Payment into 
 By r. 6, " A judgment for the recovery of any property Q yT ' TT r 6 
 other than land or money may be enforced : Recovery of 
 
 (a) By writ for delivery of the property ; tSSd OT" 
 
 (b) By writ of attachment ; money. 
 
 (c) By writ of sequestration." 
 
 By r. 8, the writ of sequestration is included in the term 0. XLII. r. 8. 
 " writ of execution " and therefore the rules of 0. XLII. Sequestration 
 
 I'll 'if n T a WI ** * exe " 
 
 which apply to writs of execution generally, apply here. cution. 
 
 By r. 31, " Any judgment or order against a corporation 0. XLII. 
 wilfully disobeyed may, by leave of the Court or a Judge, T ' ' 
 be enforced by sequestration against the corporate pro- a corporation, 
 perty, or by attachment against the directors or other 
 officers thereof, or by writ of sequestration against their 
 property." 
 
 By 0. XLIII. r. 6, " Where any person is by any judg- 0. XLIII. 
 ment or order directed to pay money into Court or to do ^! ' 
 
 4.1. i- v M. J i- j *i , Payment into 
 
 any other act in a limited time, and alter due service ot Court, 
 such judgment or order refuses or neglects to obey the 
 same according to the exigency thereof, the person prose- 
 cuting such judgment or order shall, at the expiration of 
 the time limited for the performance thereof, be entitled, 
 without obtaining any order for that purpose, to issue a 
 writ of sequestration against the estate and effects of such 
 disobedient person. Such writ of sequestration shall have 
 the same effect as a writ of sequestration in Chancery had 
 before the commencement of the principal Act, and the 
 proceeds of such sequestration may be dealt with in the 
 same manner as the proceeds of writs of sequestration 
 were before the same date dealt with by the Court of 
 Chancery." 
 
 This rule seems to incorporate, if not to abrogate, r. 3 General Order 
 of the General Order under the Debtors Act, 1869 (y), which A^as to* ** 
 
 (y) Gen. Ord. dated 7th Jan. 1870. 
 E. T
 
 274 
 
 CONCERNING METHODS OP EXECUTION ETC. 
 
 Book II. 
 
 sequestration 
 for costs. 
 
 enacted that " Where any person is by a decree or order 
 made in any suit or matter directed to pay money or costs 
 j n a limited time, and after due service of such decree or 
 order refuses or neglects to make such payment according 
 to the exigency of such decree or order, the person prose- 
 cuting such decree or order shall, at the expiration of the 
 time limited for such payment, be entitled to a commission 
 of sequestration, which may be issued by the clerks of 
 records and writs without any special order, upon produc- 
 tion of evidence to the same effect as that which would 
 heretofore have been required on issuing a writ of attach- 
 ment for default in making such payment." 
 
 By r. 7 of 0. XLIIL, no subpoena for the payment 
 of costs, and, unless by leave of the court or a "judge, no 
 
 ' J J & ' 
 
 sequestration to enforce such payment, shall be issued (z). 
 
 In a proper case the court will give leave ; for instance, 
 where a fi. fa. would have been productive of no useful 
 result, and the person against whom the order for costs was 
 made was an officer living on a pension, having appa- 
 rently no other means, leave was granted (a). 
 
 Sequestration While proceeding to discuss these and the other general 
 i- rules relating to sequestration, we must bear in mind the 
 distinction, which has been adverted to in the Chapter on 
 Committal, between the exercise of the power of the 
 Courts for purposes of enforcing a judgment, and for 
 purposes of punishment merely. The process of sequestra- 
 tion is only used for the latter purpose in one case, viz., 
 that of a corporation, under 0. XLII. r. 31, supra, and, 
 therefore, is not as a rule available if the contemnor has 
 disobeyed an injunction or committed a special contempt. 
 Moreover, the writ of sequestration can, in the same way 
 
 O. XLIII. 
 *; ' 
 
 No subpoena 
 
 for costs. 
 Sequestration 
 
 tire. 
 
 Simultaneous 
 
 (z) This rule does away with the 
 practice under rules 4 and 5 of the 
 Gen. Ord. under the Debtors Act, 
 1869, dated 7th Jan. 1870. 
 
 (a) Snow v. SoUon, 17 Ch. D. 
 
 433. The application should be 
 made by summons in chambers. 
 See also Selons v. Croydon Rural 
 Sanitary Authority, 53 L. T. N. S. 
 209, et supra.
 
 THE WRIT OF SEQUESTRATION. 275 
 
 as other process for contempt, be put in force simultaneously Chap. IV. 
 with any other method of execution. No objection will 
 
 lie to it, or to such other method, that its enforcement is sequestration 
 double execution, and therefore wrong (b). execution. 
 
 Where a writ of sequestration is resorted to for enforce- Indorsement 
 ment of an order for payment of money into Court, or to order?" 
 do any other act in a limited time, we have seen that, by 
 0. XLIII. r. 6, " due service " of that order is expressly 
 made necessary before the writ can issue. The service here 
 referred to is that required by 0. XLI. r. 5, viz., personal 
 service. This last-mentioned rule applies in all cases where 
 a writ of sequestration is available to enforce an order to do 
 any act, and every such order must, further, comply with 
 the rule in the matter of indorsement (c). Personal service 
 and indorsement form, therefore, a condition precedent to 
 the issue of a writ of sequestration, just as they do to the 
 issue of a writ of attachment both are process consequent 
 upon contempt. 
 
 The writ of sequestration, when prepared and issued, Practice after 
 should be handed to the sequestrators, with instructions for 
 carrying it into effect (d). The sequestrators or commis- 
 sioners are by the writ constituted officers of the Court, but 
 they are nominated by, and act under, the direction of the 
 person prosecuting the contempt, or of his solicitor (e). If 
 they fail in the performance of their duty, it is not a matter 
 for which an action may be brought, but all complaints 
 against them should be made in the matter in which they 
 are appointed, and to the Court appointing them (e). The 
 person prosecuting the contempt, or some one on his behalf, 
 gives the instructions as to the execution of the writ, and he, 
 
 (b) Ferryman v. Dinham, I Bep. the writ. Selous v. Croydon Local 
 Ch. 52. Board, 53 L. T. N. S. 209. 
 
 (c) Tide supra, p. 152, subject, (d) Dan. Ch. Pr. 913. 
 
 of course, to the exceptional case (e) Gilb. For. Rom. 79 ; Hinde, 
 of enforcement of an injunction Ch. Pr. 138. 
 against a corporation by means of 
 
 T2
 
 276 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Damages. 
 
 therefore, is responsible for any damage which the con- 
 temnor or a third person may suffer in consequence. An 
 inquiry as to damages may be directed where the third 
 person has been injured, by the sequestrators taking pos- 
 session of property belonging to him (/). It is material to 
 ascertain what the instructions given are, for if the seques- 
 trators have acted illegally, without instructions, or have 
 abused their power, they may be attached (g). 
 
 Duties of the 
 sequestrators. 
 
 SECT. 3. DUTIES OF THE SEQUESTRATORS. 
 
 The first duty of sequestrators is to take possession, or, 
 as it is expressed in the writ, to "go and enter upon all 
 the messuages, &c.," and to " collect, take, and get into 
 their hands," the rents and personal estate. The writ 
 itself authorizes nothing more than the mere taking pos- 
 session, any disposition whatever of the proceeds of the 
 execution must form the subject of a further order of the 
 Court (li). If, when the sequestrators endeavour to take 
 possession, the contemnor refuses to be ousted, it is doubt- 
 ful how far they can use force (i) . Any interference with 
 them is a contempt, and in this case, as in others, their 
 proper course is to move for a writ of attachment. This 
 writ being directed to the sheriff, there are abundant 
 means of enforcing it, and when the contemnor is by this 
 means removed the sequestrators can proceed. They have 
 no power to interfere themselves with the person of the 
 contemnor (k). 
 
 (/) See Copeland v. Mape, 2 Ba. 
 & Be. 66. 
 
 (ff) As in Pelham v. Hurley, 3 
 Swanst. 291. 
 
 (h) It is important to remember 
 that the form of the writ is itself 
 variable, and when issued under 
 an order the writ may be to a great 
 
 extent a recital of it. Dan. Ch. 
 Pr. 912. 
 
 (i) Loivten v. Mayor of Colchester, 
 2 Mer. 395. They can use force 
 where specially authorized by order 
 of the Court. Pelham v. Duchess 
 of Newcastle (No. 3), 3 Swans. 290. 
 
 (k) This has been expressed in
 
 THE WRIT OF SEQUESTRATION. 277 
 
 When the sequestrators have obtained possession, inter- Chap. rv. 
 ference with them is, again, a contempt (/). "Where such ec ' ' 
 interference or disturbance takes place, the practice is to Interference a 
 
 . contempt. 
 
 attach those directly concerned and to grant an injunction 
 to restore the sequestrators to possession (m) . It seems to 
 have been the practice frequently to take an injunction in 
 aid of the writ of sequestration (n) . If a breach of this 
 injunction were committed, as well as contempt by inter- 
 ference with the sequestrators, a writ of assistance issued (0) . 
 
 SECT. 4. EFFECT OF SEQUESTRATION ON EIGHTS OF THIRD 
 PERSON. 
 
 SUB-SECT, (i). Applications of Third Parties pro 
 interesse suo. 
 
 With regard to persons other than the contemnor, the Effect of writ 
 writ of sequestration is a most high-handed proceeding. thkd g persons 
 It would appear that no one can, even in the defence of 
 his own, interfere with the sequestrator without commit- 
 ting a contempt (p). Proceedings for attachment can, 
 therefore, be taken at once ; though there is no doubt that, 
 except in a flagrant case, the Court would be inclined to 
 deal leniently with the owner of property who endeavoured 
 to insist on his undoubted rights. The extraordinary 
 
 another manner, when it was said (n) As in Pelham v. Harley, 3 
 
 that a sequestration is a proceeding Swanst. 291. 
 
 in rem, not in personam. Tathamv. (o) ird~v. Littlehales, 3 Swanst. 
 
 Parker, 1 Sm. & Gr. 506. 299. At the present time in such a 
 
 (I) Angel v. Smith, 9 Ves. 335 ; case, no doubt, the practice would 
 Brooks v. Greathed, 1 Jac. & W. 178. be to obtain an order for possession, 
 Interference with goods liable to and on that issue a writ of posses- 
 sequestration, after it is sued out, is sion. That is, if the process of 
 also a contempt. Harvey v. Harvey, contempt were stood out. 
 2 Ch. Ca. 82. (p) An action commenced against 
 
 (m) Pelham v. Newcastle (2), 3 a sequestrator in respect of acts 
 
 Swanst. 289. done under the writ, will be stayed. 
 
 Kaye v. Cunningham, 5 Mad. 410.
 
 278 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Practice on 
 applications 
 pro interesse 
 suo. 
 
 nature of the proceeding was in an early case put 
 pointedly enough : " if a sheriff executed an execution 
 upon goods that did not belong to the defendant, the 
 party grieved might have his action ; but in case of seques- 
 tration, all the recompense a person could have whose goods 
 were wrongfully sequestered was barely a restitution on 
 proof of his right" (q). That is to say, after an injury 
 to a person has been done, the person injured has two 
 remedies either to endeavour, by interfering with the 
 sequestrator, to get a motion for an attachment to be issued 
 against him, on which he could perhaps show cause, or to 
 apply to the Court for liberty to come in and prove his 
 own title, pro interesse suo, as it is called (r) . 
 
 The practice in these cases was discussed in a judgment 
 of Sir James Wigram, V.-O., date 1844. 
 
 The case was, that after sequestrators had taken posses- 
 sion, a third party claiming the land came in> and was 
 examined pro interesse suo. The master reported, and on 
 exceptions being taken to the report, the whole question 
 was raised. The important part of the judgment for our 
 purpose is : " The first question was, whether the Court 
 would try the rights of the parties on this proceeding. 
 Cases of this kind are of rare occurrence ; I hesitated much 
 upon this part of the case, never having had occasion to 
 consider the practice before. Upon looking into the 
 authorities collected in Mr. Swanston's report (3 Swanst. 
 276 et scq.), and in Daniell's Chancery Practice (vol. i. 
 p. 646 et seq.), and on referring to the cases of Angel v. 
 Smith (9 Yes. 335), Brooks v. Greased (1 Jac. & W. 176), 
 Johnes v. Claughton (Jac. 573), Wharam v. Brouyhtoti (1 
 
 (q) Pelham v. Newcastle (3), 3 
 Swanst. 290. There is, therefore, no 
 precedent to be found of trespass, or 
 other action at law, maintained for 
 acts which a sequestrator has done 
 in abuse of his power. 
 
 (r) Forms of notice of motion and 
 orders, Appendix, infra, Nos. 90 
 92. Gilb. For. Rom. 80, For- 
 
 merly the application could not be 
 made, unless the sequestrators were 
 in possession, and had returned the 
 writ. Pelham v. Newcastle (2), 3 
 Swanst. 289, p. 290. The return does 
 not appear now to be necessary, no 
 office will receive it. Goldsmith v. 
 Goldsmith, 5 Hare, 123, p. 129. 
 And see form of writ, supra.
 
 THE WRIT OF SEQUESTRATION. 279 
 
 Yes. 180), and Copeland v. Mape (2 Ba. & Be. 66), it is Chap. IV. 
 
 perfectly clear that the Court exercises a discretion. Sec - 4 (*) 
 
 Where the case has been considered to admit of no doubt, 
 
 the Court has determined it without a reference to the 
 
 master. In some cases, the Court has ordered the parties 
 
 to bring an ejectment : in other cases, where the seques- 
 
 trator has found a person in possession of the property, 
 
 the Court has ordered a writ of assistance to issue, unless 
 
 the party submitted to come in and be examined pro inter- 
 
 csse suo (s). The Court sees what is necessary to be done 
 
 in order to try the question of right, and it then puts it in 
 
 the way of trial. If the Court did not thus assert its 
 
 jurisdiction, a sequestration would be a mere form. I 
 
 have not the slightest doubt of the jurisdiction to try the 
 
 question; my only doubt has been on the manner in which 
 
 it may best be tried, and on what ought to be done in the 
 
 meantime." The decision was, ultimately, that the question 
 
 ought to be tried at law, and the form of the order is 
 
 given (). 
 
 The practice may therefore be stated thus : Where a Summary of 
 claim of right is made by a person not a party to the pro- pra 
 ceedings, the matter should be at once brought by the 
 sequestrators before the Court. Whether they are in 
 possession of the subject-matter of the dispute or not, the 
 Court will, on the application of either party, make such 
 order as will meet the circumstances of the case. For the 
 reason, however, that interference by anyone is a contempt, 
 the sequestrators have usually gone or been ordered into 
 possession, and the order, with reference to the right of the 
 claimant, is then made on his motion (M). Where, on the 
 hearing of this application, the right of the claimant is 
 
 (*) There is no doubt of this given for compelling parties to 
 
 jurisdiction being exercisable in come in, Angel v. Smith, 9 Ves. 
 
 invitum(irdv.Littlehaks,3S-w&nst. p. 337; Gilb. For. Rom. 80. 
 p. 300), though it has been denied : (t) Empringham v. Short, 3 Hare, 
 
 Kaye v. Cunningham, 5 Mad. 406, 461. 
 
 where, however, the sequestrator () Or in the Queen's Bench 
 
 was in possession. See the reason Division by summons in chambers.
 
 280 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Proceedings 
 
 possession. 
 
 Inquirybefore 
 3r ' 
 
 quite clear, the Court will decide summarily (x) . Where, 
 however, it is not clear, or the matter would take a 
 lengthened investigation, an inquiry will be directed as to 
 the interest of the claimant in the subject-matter of his 
 application (?/). 
 
 If the sequestrators are not in possession, the claimant, 
 ^ n g i n contempt, and in reality asking for the inquiry 
 p ro interesse suo, would be put under some terms as to the 
 preservation of the property, until such time as the chief 
 clerk's certificate could be completed and order made 
 thereon. The Court would probably order that possession 
 be given up to the sequestrators, or, if the expense of that 
 process is too great, cause such undertaking or security to 
 be given by the claimant as would secure the sequestrators 
 against loss (z). 
 
 The inquiry before the chief clerk () is, under the 
 modern practice, conducted in the same manner as an 
 ordinary inquiry as to title. The sequestrators claim 
 under their writ, and the claimant proves his title. If 
 there is anything in the case calling for a special inquiry, 
 by means of interrogatories or otherwise, or requiring that 
 the inquiry should be taken in any particular manner, care 
 
 (#) As in Dixon \. Smith, 1 
 Swanst. 457, where sequestrators 
 had gone on and sold chattels, 
 notwithstanding a distress put in 
 by the landlord, who was the ap- 
 plicant, and who obtained an order 
 that his rent and costs should be 
 paid out of the fund standing to the 
 credit of the cause. The form, of 
 the order is given. See Empringham 
 v. Short, 3 Hare, 461. 
 
 (ij) Seton, 1583. 
 
 (z) The practice formerly was, for 
 the claimant to petition or move 
 for leave to come in pro interesse 
 suo, and he would only be heard 
 after the sequestrators had taken 
 possession. The order was then 
 
 made for reference to the master 
 for examination and report. The 
 claimant was ordered to deliver 
 particulars of his claim, upon which 
 the party pursuing the sequestra- 
 tion administered, or, as the phrase 
 was, "exhibited," interrogatories. 
 See Hamlyn v. Lee, 1 Dick. 94 ; Pel- 
 ham v. Newcastle (No. 2), 3 Swanst. 
 290. And Hunt v. Priest, 2 Dick. 
 540, where the old practice is set 
 forth at length. 
 
 (a) Or, in the Queen's Bench 
 Division, on a reference by the 
 judge making the order, to a mas- 
 ter. For old practice, see Keene v. 
 Price, 1 S. & S. 98 ; Hamlyn v. 
 Lee, 1 Dick. 94.
 
 THE WRIT OF SEQUESTRATION. 281 
 
 must be taken to provide for it in the order (). The Chap. iv. 
 chief clerk has every control over the inquiry under w* 
 
 0. LY. rr. 15, 16, and 17, and the Court will take such 
 steps as are necessary to make it an effective proceeding ; 
 for example, will order the claimant to make discovery (c). 
 
 Where, on the inquiry, the claimant is successful and Order for 
 makes out his title, an order will be made that the seques- to^wit^draw 
 trators do withdraw from possession (d), or where the cir- 
 cumstances warrant it, that the goods sequestered be speci- 
 fically restored to the claimant, and a reference taken as to 
 damages (e). Where the successful claimant is a mort- 
 gagee, since the sequestrators hold the rents and profits in 
 custodia legis, the order should further contain a direction 
 that they do account to him. In such a case, the costs of Sequestrators' 
 the sequestrators are first provided for out of the rents and & 
 profits of the particular estate claimed, and the costs of the 
 mortgagee are added to their security (/'). 
 
 The sequestrators, after the accounts have been taken, Sequestrators' 
 and the sum due to the mortgagee ascertained, have a 
 right to redeem the property (g). 
 
 SUB-SECT, (ii). Proceedings by Sequestrators for Recovery 
 and Management of Property subject to the Sequestration. 
 
 It is not in all cases where third parties are claiming Where sepa- 
 rate actior 
 necessary. 
 
 
 
 against sequestrators that the proper method of trying the ri 
 
 question is on an application pro interesse suo. Where, for 
 
 example, the sequestrators are not in possession, and 
 
 (b) O. LV. r. 15. This is, of (/) The leading authority in 
 course, of special importance in the the case of a mortgagee coming in 
 Queen's Bench Division, so that is Walker v. Bell, 2 Mad. 21, where 
 the master's duty may clearly the order made will be found set 
 appear. forth. 
 
 (c) Alton v. Harrison, "W". N. (g] Fawcet \. Fothergill, 1 Dick. 
 (1869), 81. 19 ; Hamlyn v. Lee, 3 Swanst. p. 
 
 (d) Form No. 92 in Appendix, 304. To the extent of the sum 
 infra. paid off by him, the party moving 
 
 (e) Copeland T. Mape, 2 Ba. & the sequestrators would stand in 
 Be. 66. the shoes of the mortgagee.
 
 282 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Reason for 
 the action. 
 
 Tenants of the 
 contemnor. 
 
 Order to 
 attorn. 
 
 Order against 
 tenant to pay. 
 
 specially where they are endeavouring to attach funds due to 
 the person in contempt, it is advisable to commence separate 
 proceedings to enforce the sequestration. For example, 
 where the sequestration was removed by a fraud, and a 
 subsequent mortgagee, having notice thereof, endeavoured 
 to insist on his claim, the plaintiff, at whose instance the 
 sequestrator had been appointed, took proceedings by a 
 separate bill to have the priorities declared (h) . This suit 
 necessarily involved that the mortgage of the claimant 
 should be declared void as against the sequestration, and, 
 therefore, could not have been properly tried out on mere 
 proceedings pro interesse suo. 
 
 Where the persons in actual possession of the land are 
 tenants of the contemnor, the sequestrators should give 
 notice of their appointment to each tenant, and require him 
 to attorn (i). The tenant is not apparently bound to 
 attorn or pay his rent to the sequestrator without an order 
 of the Court or an indemnity (&) . 
 
 An order will be made on notice to the tenants to be 
 affected thereby that they do attorn (i) ; the writ is not of 
 itself such an order. The mere refusal of a tenant to 
 attorn is not, therefore, a contempt until the order has 
 been made against him. 
 
 It is advisable in all cases to obtain the order, for it was 
 decided at law that the sequestrators could not, even after 
 attornment, recover the rent in an action, there being 
 nothing in the mere appointment of sequestrators and the 
 attornment to put an end to the previously existing 
 tenancy (/). It would appear, therefore, that the seques- 
 trators must proceed against the tenant upon the order 
 
 (h) Ward v. Sooth, L. R. 14 Eq. 
 195. 
 
 (i) Or pay the rent to the seques- 
 trators. Rowley v. Ridley, 3 Swanst. 
 306 ; Goldsmith v. Goldsmith, 5 
 Hare, 123. Forms of proceedings 
 as to tenants, Appendix, infra, 
 Nos. 93-97. 
 
 (A) White v. Wood, 2 Y. & C. C. 
 
 C. 615, where the tenant was, on 
 his insisting, allowed his costs of 
 appearance on motion to compel 
 him to pay. 
 
 (I) Cornish v. Searell, 8 B. & C. 
 471. The writ, as has been said, 
 operates in no wise as a conveyance 
 or assignment of the contemnor' s 
 estate.
 
 THE WRIT OF SEQUESTRATION. 283 
 
 made against him, and not upon or by force of the writ Chap. IV. 
 itself. Sec - 4 (*) 
 
 Where there are no tenants in possession, the seques- Letting by 
 trators have not authority to set and let. An order of the se <l uestrators - 
 Court, on notice to the other side, is necessary to enable 
 them to do this (in). 
 
 Besides orders against tenants to attorn, and orders Orders as to 
 authorizing the letting of the land, sequestrators should, 
 for their own protection, obtain such orders as may be property, 
 necessary for the proper management of the estates se- 
 questered, e.g., for felling and sale of timber (n), for 
 settlement of accounts for dilapidations with outgoing or 
 incoming tenants (o), and the like. 
 
 SECT. 5. PROPERTY SUBJECT TO THE WRIT AND EFFECT 
 OF WRIT THEREON. 
 
 The consequences of the sequestration, when put in Consequences 
 force, are different according to the nature of the property tion with 
 seized. The right to the enjoyment of all the contemnor's re g ard to 
 
 . . property of 
 
 property is taken away from him, not to be vested in the contemnor. 
 person pursuing the contempt, but to be held in medio, or 
 in custodia legis, to await any order the Court may 
 make (p). 
 
 A conveyance or transfer of property made fraudulently Conveyance 
 to defeat the sequestration is void as against it (<?). But sequestration. 
 
 (/) Neale v. Healing, 3 Swanst. pendix, infra. 
 
 304 ; Ray v. , ibid. 306, where (p) Where a party has an inte- 
 
 the difference in this respect be- rest in the proceeds of a sequestra- 
 
 tween sequestrators and receivers tion he can assign it. Caermarthen 
 
 is adverted to. Dunkky v. Scrib- v. Hawson, 3 Swanst. 294. 
 nor, 2 Mad. 443, where necessary (q) Withatn v. Bland (No. 1), 3 
 
 evidence is set forth. Swanst. 276 ; Collision v. Gardiner, 
 
 () Dacresv. Chute, 1 Vern. 161. 3 Swanst. 279 ; Hamlyn v. Lee, 3 
 
 (o) Order in Re Burkitt, Seton, Swanst. 301. 
 1580, Forms Nos. 98, 99, Ap-
 
 284 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Duty of 
 
 sequestrators 
 as to land. 
 
 Leaseholds. 
 
 Reversionary 
 interest in 
 land. 
 
 Copyholds. 
 
 the conveyance or transfer must be fraudulent on the part 
 of both parties, so that a purchaser for value without 
 notice has a good title even against a prior sequestra- 
 tion (r). In those cases where the subject-matter of the 
 action is the land which has been sequestered, and it has 
 been conveyed pendent e lite, the title is bound from the 
 beginning of the action, and the purchaser, for that very 
 reason, comes in at his peril, and cannot set up his title 
 against that of the sequestrators (.$) . There is no necessity, 
 in the case where the sequestrators are in possession, for 
 them to bring an action to have any conveyance declared 
 void as against them. For in such case, the persons 
 claiming under the conveyance and coming in pro interesse 
 suo, will fail to show their title, and the possession of the 
 sequestrators will be then assured by the order made on 
 the inquiry. 
 
 With respect to land of the contemnor, the duty of the 
 sequestrators is to take possession of it, and to keep him 
 out. This duty is the same whether the land held by the 
 contemnor is freehold or leasehold. It should be remem- 
 bered that, in the case of leaseholds, the sequestrators are 
 not personally responsible to the lessor for the rent and 
 covenants of the lease, although, in order to prevent the 
 exercise by him of any right of re-entry he may have, 
 they may in fact be bound to perform them. 
 
 It is difficult to see how the sequestrators could take 
 possession of a reversionary interest in land belonging to 
 the contemnor. But, on principle, they are in a position 
 to obtain an order, which would take a form according to 
 the nature of the conveyance or settlement under which 
 the contemnor's title arises. There is nothing in principle 
 to prevent the Courts effectuating the writ in this 
 manner. 
 
 It appears doubtful, both on principle and authority, 
 
 (r) Vicars v. 
 P. C. 31. 
 
 Colclough, 5 Bro. 
 
 (s) Crofts v. Oldficld, 3 Swanst. 
 378 ; Bird v. Liltlehales, 3 Swanst. 
 299.
 
 THE WRIT OF SEQUESTRATION. 285 
 
 whether the Court will compel a lord of the manor to Chap. IV. 
 admit sequestrators as tenants of copyhold lands. At the Sec ' 5- 
 same time such lands are subject to the writ (t). 
 
 The sequestrators having no estate in the land, cannot No sale of 
 obtain an order for the sale of it. They can give no title, landfl - 
 and the Court would not compel a purchaser to take a title 
 which he would have to support by an action for an in- 
 junction (). The person pursuing the contempt is not, 
 nor is a sequestrator, a creditor to whom the land of the 
 debtor has been actually delivered in execution, and therefore 
 the Court has no jurisdiction to order a sale on a petition 
 under 27 & 28 Yict. c. 112, s. 4 (#). In case the action 
 has been instituted in relation to the real estate sequestered, 
 a sale thereof may be obtained, if necessary or expedient, 
 by an order in the action (y) ; but this has nothing to do, 
 nor can it have anything to do, with the sequestration. 
 
 "With regard to personal property of a tangible nature, Duties with 
 the duty of the sequestrators is to take possession of it in 
 the hands of whomsoever it may be (z). As the title to 
 goods passes by sale and delivery, the sequestrators, although 
 they take no interest in the goods which at common law 
 could have been called property (), can obtain an order to Order for 
 sell, and pay the proceeds into Court, and to take their 
 
 (t) Whitehead v. Harrison, 1 treated as binding the goods from 
 
 Barnard. 431 ; Coulsto*\. Gardiner, the date, at any rate, of its issue 
 
 3 Swanst. at p. 282 ; Caermarthen in a manner similar to the way in 
 
 v. Hawson, ibid. 294; Dunkley v. which, at common law, &fi.fa. was 
 
 Scribnor, 2 Mad. 443. held to bind the goods from the 
 
 (u) Shaw v. Wright, 3 Ves. 22. teste. See Payne v. Drewe, 4 East, 
 
 (x) Johnson v. Burgess, L. R. 15 523. 
 
 Eq. 398, notwithstanding^ Rush, (a) That is, in the same sense in 
 
 L. R. 10 Eq. 442. which the sheriff is said to have a 
 
 (y) Where the application for " special property " in goods seized 
 sale is made before final judgment, by him under aji.fa. Vide, p. 122, 
 see and consider 15 & 16 Viet. c. 86, supra. See Sr og rave v. Watts, Cro. 
 B. 55, repealed by 46 & 47 Viet. Eliz. 651, where plea that com- 
 c. 49, with the qualification ex- mission issued from court of re- 
 pressed in sect. 5. quests under which goods seized 
 
 (z) The sequestration has been were held demurrable.
 
 286 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Stock or 
 shares. 
 
 Book II. costs (6). Notice of the motion for leave to sell should be 
 served upon the contemnor, or at his address for service, for 
 the reason that goods which appear to be his property may 
 not be so in fact (c). Though where the contemnor cannot 
 be served, leave will be granted on motion ex parte (d}. 
 
 The Court can order a sale of goods under a sequestra- 
 tion, although it has been issued on an interlocutory order, 
 and there is no final order or judgment under which the 
 proceeds are disposed of (<?). 
 
 The application for leave to sell should be made in 
 chambers, as it properly comes within the category of 
 chamber business (/). 
 
 Where there are stocks or shares belonging to the con- 
 temnor, the sequestrators can seize them, and take such 
 steps as may be most effectual for enforcing the writ (g). 
 It is submitted that they are entitled either to require, for 
 instance, that shares in a limited company should be trans- 
 ferred into their names, or to a charging order over them. 
 Sequestrators The sequestrators can intervene in an action in the 
 Chancery Division to which they are not parties, and 
 obtain an order in that action, charging the funds to which 
 the contemnor is entitled (h) . And where the contemnor 
 had deposited a sum in Court for purposes of an appeal, or 
 the order for setting down the appeal being discharged, 
 and the sum deposited in Court ordered to be repaid to the 
 contemnor, the sequestrators were held entitled to intervene 
 
 () Cadcll v. Smith, 3 Swanst. 
 308. 
 
 (/) Turner v. Clifford, W. N. 
 (1870) 199. 
 
 (g) But see McCarthy v. Goold, 
 1 Ba. & Be. 387. 
 
 (h) Re Slade, Slade v. Hulme, 18 
 Ch. D. 653, where Mr. Justice Fry 
 sums up the authorities on the 
 point. Claydon v. Finch, L. R. 15 
 Eq. 266, where the fund, being in 
 Court, the application by the se- 
 questrators was on petition. 
 
 ceedings. 
 
 (V) Form of Order in Appendix, 
 infra, No. 99 ; Wharam \. Bronghton, 
 1 Ves. Sen. 184. Note that for their 
 own protection the sequestrators 
 can obtain an order for liberty to 
 remove unsaleable goods to a place 
 of safety. Shaw v. Wright, 3 Ves. 
 22. 
 
 (c) Mitchell v. Draper, 9 Ves. 
 208; Ridgway v.Davis, 2 Jones, 507. 
 
 (d) Re Rush, 18 W. R. 417, 
 where he had gone out of the 
 jurisdiction.
 
 THE WRIT OF SEQUESTRATION. 287 
 
 and obtain an order for payment to them (/). Again, Chap. IV. 
 where the interest of the contemnor in the funds was rever- ec ' ' 
 sionary, an order for sale of such interest was made on the 
 intervention of sequestrators in the suit (k). 
 
 It is clear that the writ, in directing the sequestrators to Debts due to 
 take possession of all the contemnor's personal estate, temnor." 
 includes suras of money belonging to him which are in the 
 hands of third persons (/). But when the sequestrators 
 endeavour to enforce their writ against such persons, they 
 not being parties to an action before the Court, the practice 
 is usually stated to be, that if any person who admits to 
 having in his hands money or any chose in action belong- 
 ing to the contemnor, comes in and submits to the order of 
 the Court, the Court can deal with the matter and order 
 the sequestrators to seize, but that if such person resists 
 payment to the sequestrators, a separate action is necessary 
 to enforce the writ (m). There is undoubtedly strong 
 authority for this position (ri) ; but it is submitted that no 
 satisfactory reason is given why, when the parties are 
 before the Court, the matter cannot be dealt with, without 
 the necessity of issuing a writ (0) ; except, perhaps, the 
 general reason given by Lord Thurlow, that choses in 
 
 (i) Conn v. Garland, 9 Ch. 101. (m) Dan. Ch. Pr. 6th ed. 914 ; 
 
 (K) Cowper v. Taylor, 16 Sim. Seton, 1578. 
 
 314. The order made in Slade v. (n) Simmonds v. Lord Kinnaird, 
 
 Hulme, 18 Ch. D. 658, restraining 4 Ves. 735 ; Francklyn v. Colhoun, 
 
 the trustees of the settlement from 3 Swanst. 276 ; Johnson \. Chippin- 
 
 paying to the contemnor, is suffi- doll, 2 Sim. 55 ; Wilson v. Metcalfe, 
 
 cient in most cases without asking 1 Beav. 263 ; Manton v. Manton, 40 
 
 for a sale. L. J. Ch. 93 ; Crispin v. Cumano, 
 
 (1) It is said that the words L. R. 1 P. & M. 622. The point 
 
 ' ' personal estate ' ' which occur in decided in the last case could hardly 
 
 the form of the writ, and of the arise since the passing of the Judi- 
 
 order given in Pope v. Ward, 1 cature Acts ; all judges being now 
 
 Cox, 1 94, ' ' do not carry the matter endowed with ample power to deal 
 
 further than goods and chattels." with such a question. 
 
 Sed qu. Johnson v. Chippindall, 2 (o) It has already been pointed 
 
 Sim. p. 66 ; Francklyn v. Colhoun, out that by taking an inquiry any 
 
 3 Swanst. 276. person can be brought before the 
 
 Court to give evidence.
 
 288 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Landlord 
 entitled to 
 rent. 
 
 Restraint on 
 anticipation. 
 
 Annuity 
 payable to 
 contemnor. 
 
 action could not be reached by process of Courts of 
 equity (p). Mr. Justice Fry, in a recent case, made an 
 order against a bank, at the instance of sequestrators, to 
 pay into Court a balance in their hands belonging to the 
 person against whom the sequestration had issued, not- 
 withstanding that the bank did not consent (q). . 
 
 In any event it is clearly settled, that where the third 
 person does submit to the jurisdiction, and admits property 
 or funds in his hands, an order will be made dealing with 
 them, and he is undoubtedly entitled to such an order 
 against himself as will protect him in paying over to the 
 sequestrators (r). 
 
 The landlord of premises on which sequestrators have 
 seized and sold goods is entitled to be paid arrears of rent 
 out of the fund in Court, the proceeds of such sale, and to 
 move for an order for that purpose (s). 
 
 Where a sequestration is issued against a married 
 woman, her property, or such property as is settled to her 
 separate use with no restraint on anticipation, becomes, it is 
 submitted, subject to the sequestration (t). Where, how- 
 ever, there is a restraint upon anticipation, a sequestration 
 would not, on principle, touch future or accruing income. 
 If the income has already become due, and waits only for 
 the married woman to receive it, it has been decided that 
 a sequestration will reach it (u). 
 
 Where the contemnor is entitled to an annuity, it can be 
 sequestered in the hands of the person liable to pay it, at 
 any rate if that person, as has been already stated, submits 
 to the order of the Court. The order may extend both to 
 arrears and to future sums to become due (x). 
 (p) See McCarthy v. Goold, 1 Ba. R. 280. 
 
 (M) Clay don v. Finch, L. R. 15 
 Eq. 266. In Miller v. Miller, L. R. 
 2 P. & M. 54, where a sequestra- 
 tion issued against a married 
 woman, the question of what pro- 
 perty became subject to the writ 
 was left open. 
 
 (x) Wilson v. Metcalfe, 1 Bear. 
 263, p. 270. 
 
 & Be. 387. 
 
 (q) Miller v. Huddlestom, 22 Ch. 
 D. 233. 
 
 (r) Wilson v. Metcalfe, 1 Beav. 
 263. 
 
 (s) Dixonv. Smith, 1 Swanst. 457. 
 See, also, Atty.-Gen. v. Coventry, 
 1 P. Wms. 306. 
 
 (t) Keogh v. Cathcart, 11 Ir. Eq.
 
 THE WRIT OF SEQUESTRATION. 289 
 
 Different considerations apply, however, to those cases Chap. rv. 
 where the contemnor is in receipt of a pension. The 
 
 subject of pensions, and how far they are attachable in Pension of 
 satisfaction of a judgment for the recovery of money, will 
 be hereafter discussed. For the present it will be sufficient 
 to say that a pension can be sequestered only where it can 
 be charged or assigned by the owner. An order will not 
 be made, under a sequestration, against the Lords of .the 
 Treasury for payment of the pension of a judicial officer (y), 
 or of a person compensated by a pension out of the public 
 funds (z), nor against her Majesty's Paymaster-General in 
 respect of a good service pension (a) ; the proper order 
 which, in all these cases, the sequestrator can obtain being * 
 an injunction against the contemnor restraining him from 
 receiving the pension. This injunction is served on the 
 person or officials paying the pension (b}. 
 
 SECT.G. ULTERIOR CONSEQUENCES OF SEQUESTRATION AND 
 WORKING OUT OF ElGHTS OF PARTIES THEREUNDER. 
 
 Where a person has been committed (c) for a contempt Sequestration 
 
 L J V ' J V- Where 
 
 in not delivering to any person or persons, or depositing contemnor 
 in Court or elsewhere, as by any order may be directed, 
 books, papers, or any other articles or things, sequestrators n 
 have the same power to seize and take the same being in l Wili - Iv .-> 
 the custody of the person against whom the sequestration 8 ub-s. ie. ' 
 
 (y) Willcock v. Terrell, 3 Ex. D. be taken if the officials paid over 
 
 323; in this case the judicial officer the pension to the contemnor not - 
 
 was a county court judge. withstanding, does not appear. 
 
 (2) M'Carthy v. Goold, 1 Ba. & (c) The committal must 'clearly 
 
 Be. 387. have been made before the power 
 
 (a) Knight v. Sulkeley, 4 Jur. given by the section can arise at 
 N. S. 527 ; 5 Jur. N. S. 817. all. See, however, sect. 8, 32 & 
 
 (b) Notes (y), and (z), and (a), 33 Viet. c. 62, the Debtors Act, 
 supra. What further step could 1869. 
 
 E. U
 
 290 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Sequestration 
 does not cease 
 by death of 
 contemnor. 
 
 Effect on 
 sequestration 
 of the bank- 
 ruptcy of the 
 contenmor. 
 
 issues, as they would have over his own property, and, 
 thereupon, such articles or things so seized and taken shall 
 be dealt with by the Court as shall be just; and, after such 
 seizure, the Court may make such order for the discharge 
 of the prisoner as to the Court may seem fit (d~). 
 
 Although, as we have seen, the writ of sequestration is a 
 mere process for contempt, it does not cease to run when 
 the contemnor dies leaving property which can be the 
 subject of sequestration (e) ; nor does it fall through by 
 reason of the death of the person entitled to the benefit of 
 it (/). Of course no fresh step can be taken, nor order 
 made, without putting the action right in the matter of 
 parties. If at any time the rights of the sequestrators 
 come to an end, an order must be made discharging them 
 before the writ and its authority are determined. 
 
 Where the contemnor becomes bankrupt during the 
 pendency of the sequestration, the effect on the title of the 
 sequestrators is, perhaps, somewhat difficult to determine. 
 It would appear that sects. 45 and 46 of the Bankruptcy 
 Act, 1883, to which we have already referred for another 
 purpose (g), contemplate the case only where a creditor 
 endeavours to enforce his debt by means of execution, and, 
 if this is the true construction, can only apply to a seques- 
 tration in a limited number of cases. This is apparent at 
 once, because it frequently happens that where sequestra- 
 tion is issuable there is no creditor to whom money can be 
 said to be due ; for example, where the order, in respect of 
 which the sequestration has issued, is an order to pay into 
 Court to the credit of a cause which has yet to be decided, 
 or where such order is an order to do some act, and, on 
 disobedience, sequestration has issued for the contempt. 
 
 (d) 11 Geo. IV. & 1 Will. IV., 
 c. 36, s. 15, sub-s. 16. Vide supra, 
 p. 224. 
 
 (e) Witham v. Bland, 3 Swanst. 
 276 ; Coulston v. Gardiner, id. at 
 p. 282 ; Caermarthen v. Hawson, ib. 
 294. And see, as to distinction in 
 
 this respect between sequestration 
 on mesne and final process [now 
 obsolete], Burdettv.Rockley, 1 Vern. 
 58. 
 
 (/) Hyde v. Forster, 1 Dick. 132. 
 
 (g) Vide supra, p. 152.
 
 THE WRIT OF SEQUESTRATION. 291 
 
 It is submitted that in all such cases as those we have just Chap. IV. 
 referred to, the title of the sequestrators, when perfected, 
 is good as against the trustee of the bankrupt's estate. 
 
 It has been decided by the Court of Appeal that where, Effect in 
 notwithstanding that the process is only a process for con- 
 tempt, a sequestration had in fact issued at the suit of a issued by 
 mere judgment creditor, his title under it was not com- "creditor, 
 plete, so as to make him a secured creditor within the 
 meaning of the term under the Bankruptcy Act of 1869, 
 until he had done something more than merely to serve the 
 writ on trustees who had a fund in their hands belonging 
 to the bankrupt (h). 
 
 Under the Insolvent Debtors Act (&'), the discharge of a Discharge of 
 person attached in prison was held not to discharge the ^b^e' r f 
 sequestration which had followed upon the attachment (&) . sequestration. 
 The enactments of the Insolvent Debtors Act are, however, 
 on this point not at all in pari materia with those of the 
 present Bankruptcy Act (/). 
 
 The mandate in the writ requires the sequestrators to The proceeds 
 detain and keep the proceeds of the sequestration in their trati 
 hands until the contemnor shall have performed the act 
 required or cleared his contempt, and the Court shall make 
 other order to the contrary. It will have been gathered 
 from the preceding remarks that before that period arrives, 
 orders can and will be made with reference to the disposition 
 of those proceeds. Originally, no doubt, the process was 
 used only as a means of coercing the contemnor by keeping 
 him out of possession, and the orders of which we speak for 
 the application of the funds in the sequestrators' hands to 
 the satisfaction or partial satisfaction of the contempt, are of 
 comparatively modern origin (m). Since the funds in no 
 
 (h) Exparte Nelson, Se Scare, 14 (t) 1 & 2 Viet. c. 110. 
 
 Ch. D. 41. Although service of the (A) Tatham v. Parker, 1 Sin. & 
 
 writ and usual notices seems the Giff. 506. 
 
 first step towards effectuating the (1) 46 & 47 Viet. c. 52, s. 30. 
 
 writ. Slade v. Hulme, 18 Ch. D. (m) W/iaramv.rouffhton,l~Ves. 
 
 653, sed queer e. sen. p. 184, where the following
 
 292 
 
 CONCERNING METHODS OF EXECUTION, ETC. 
 
 Book II. 
 
 Order for 
 sequestrators 
 to pass 
 accounts. 
 
 Discharge of 
 sequestration. 
 
 Costs of 
 sequestration. 
 
 sense belong to the person prosecuting the contempt, no 
 order will be made without notice to the contemnor (n). 
 The Court will also deal with the proceeds obtained from 
 a wrongful exercise of the powers of the sequestrators (o) . 
 
 Perhaps, the most important order usually made, is that 
 fixing the time and method of accounting by the seques- 
 trators and ordering payment of the balance due from 
 them into Court (p). 
 
 A sequestration continues in full force and effect until 
 an order is made discharging it. When, therefore, the 
 contempt is cleared, or where all the parties consent to 
 the course being taken, the sequestration may be dissolved 
 and the sequestrators discharged. This must, however, be 
 done by order and after providing for the payment of their 
 costs, charges, and expenses (q) . 
 
 Where the sequestrators have seized the property of the 
 contemnor, it is available, in the first instance, for their 
 costs (r), as between party and party (s). By their costs 
 is meant, the costs of the writ itself and of putting it into 
 
 passage occurs : ' ' For the writ of 
 sequestration does not require the 
 sequestrators to levy to the use of 
 the plaintiff, but only to detain 
 and keep in their hands till the 
 sum is fully paid, the contempts 
 cleared, and the Court make further 
 order to the contrary." Dan. Ch. 
 Pr. 6th ed. p. 909. 
 
 (n) In cases where by order the 
 funds are to be paid over to a cer- 
 tain person, he has, apparently, an 
 assignable interest in them till the 
 order is performed, and a letter of 
 attorney to act on behalf of such 
 person, as the sequestrators might 
 have done, can be given by him. 
 Caermarthen v. Hawson, 3 Swanst. 
 294. In a proper case this might 
 be a convenient course where the 
 premises taken possession of are 
 email. 
 
 (o) See Pelham v.Harley, 3 Swanst. 
 291. 
 
 (p) Appendix, infra. See, also, 
 for example of order where the 
 estates sequestered were consider- 
 able, and the rights provided for 
 conflicting, Pelham v. Harley, 3 
 Swanst. 291. 
 
 (q) See form of order in Appen- 
 dix, infra, p. 441, Form No. 100. 
 See Lord Pelham v. Newcastle (4), 3 
 Swanst. 293 ; Wenmanv. Osbaldiston, 
 2 Br. P. C. 276. 
 
 (r) Ward v. Sooth, L. R. 14 Eq. 
 201. 
 
 (s) Re Shapland, 23 W. R. 40 ; 
 W. N. 1874, 202. Though, in 
 some cases, it would appear that 
 solicitor and client's costs are al- 
 lowed. Order in Re Hurkill, Seton, 
 1580.
 
 THE WRIT OF SEQUESTRATION. 293 
 
 execution, including a proper allowance to them for their Chap. IV. 
 time and trouble (t). Sec - 6 - 
 
 These costs should be first provided for, and where 
 necessary or justified by the nature of the contempt for 
 which the sequestration has issued, sale of chattels and 
 payment of the costs out of the proceeds (t), or payment of 
 the costs out of moneys come into the hands of the seques- 
 trators, will be ordered (t). 
 
 When claimants to the property intervene pro interesse Costs where 
 suo and establish their claim, it has been decided where ^^ M f" 
 such claimants are mortgagees, that all rents and profits successful, 
 received by sequestrators who have been in actual posses- 
 sion of the lands, should be applied, in the first place, in 
 the payment of the costs of the sequestration, the claimants 
 being allowed to add their costs to their security (it). The 
 costs of successful claimants who are mortgagees, should, 
 there is no doubt, be added to their security, and such is 
 the ordinary rule ; but in those cases where this has been 
 recently done, no order has apparently been made as to 
 the funds which the sequestrators have actually in hand (a?), 
 which, on the authority of the case above quoted, should 
 be applied to their costs. Where, however, the successful 
 claimant is the owner of the property, no provision for the 
 payment of their costs seems to be made in the order, that 
 the sequestrators do account and withdraw (y). 
 
 (t) Form of orders in Appendix, todia legis. Walker v. Sett, 2 Mad. 
 
 infra, Forms Nos. 98, 99. As 21. 
 
 to amount of allowance, Wood v. (x) See the final order in Alton 
 
 Freeman, 2 Atk. 541 ; Prentice v. v. Harrison, given in Seton, 1584, 
 
 Prentice, Dick. 188. and see Appendix, infra, p. 441. 
 
 (M) On the ground that the se- (y) See Hamlyn v. Lee, 3 Swanst. 
 
 questrators hold the lands in cus- 301.
 
 ( 294 ) 
 
 BOOK III. 
 
 EQUITABLE AND STATUTOEY METHODS OF EXECUTION 
 OVEE PEOPEETY. 
 
 Book III. 
 
 Methods of 
 execution 
 against pro- 
 perty which 
 have been 
 already dis- 
 cussed. 
 
 Sequestra- 
 tion. 
 
 Execution 
 against mar- 
 ried women. 
 
 WHERE a judgment or order is in effect that a person do 
 pay money, we have seen that recourse may be had by 
 certain, methods to his property to realise the sum he is 
 directed to pay. The methods in use for that purpose 
 hitherto discussed have been three, viz. : the writs oifi.fa., 
 elegit, and sequestration. The first two of these have a 
 limited application only, that is to say, each of them 
 applies to particular kinds of property only. Neither of 
 these two writs is available against any other but property 
 which could have been the subject of transfer or convey- 
 ance at law. Neither of them is available for all, even of 
 such kinds of property. For instance, stocks, shares in 
 companies and the like, which now are by statute trans- 
 ferable, cannot be touched by a fi. fa. Nor at any time 
 could a remainder be extended under an elegit. It is true 
 that there appear to be no such limits in the character of 
 the property realizable under the writ of sequestration, but 
 that remedy is given in certain well-defined cases, and 
 besides, from its expensive nature, is only resorted to in 
 practice when complete recompense to the party aggrieved 
 cannot be obtained by other and cheaper methods. It 
 remains, therefore, for us to consider in this Book, in what 
 manner recourse can be had for satisfaction of judgments 
 to property which is not covered by or cannot be realized 
 under the writs of fi. fa. or elegit. 
 
 The subject of execution against married women demands 
 a chapter to itself. The effect of recent legislation relating 
 to this class of persons has been to give to them, with
 
 EQUITABLE AXU STATUTORY METHODS OF EXECUTION. 295 
 
 respect to ownership of property, a status which, they did Book in. 
 not formerly possess. Consequently, a married woman is 
 now liable to a much greater extent as to such ownership 
 than has hitherto been the case, even under the exclusive 
 jurisdiction of Courts of Equity. To understand her 
 peculiar position and the manner in which her property 
 has been reached, it has become necessary that all methods 
 of execution should be first explained. 
 
 The chapter on the subject has, therefore, been postponed 
 to this Book, although as a matter of mere logical arrange- 
 ment, it should perhaps have formed part of Book I. 
 
 This Book is divided into four Chapters : Arrangement 
 
 n T -n VL -LI -n ^ of this Book. 
 
 CHAP. I. Equitable Execution. 
 
 II. Charging Orders over Stock, &c. 
 III. The Attachment of Debts. 
 IV. Execution against Married Women. 
 Chapter I. treats of execution against the following kinds 
 of property. Equitable interests in land, such as an equity 
 of redemption ; interests in land where the execution debtor 
 has some duty to perform, e.g., where he is a trustee bene- 
 ficially entitled ; legal estates in land which are not ex- 
 tendible under writs of fi. fa. or elegit, e.g., a remainder; 
 equitable interests in goods and chattels ; equitable interests 
 in other kinds of property, e.g., a legacy, a life policy. 
 
 Chapter II. relates to the remedy given by statute 
 against stocks and shares in corporations and public under- 
 takings. 
 
 . 
 
 Chapter III. comprises a discussion of the different 
 means of attaching choses in action to answer the claim 
 of the execution creditor. Choses in action may be taken 
 for this purpose as including debts properly so called, and 
 the interest or right of the execution debtor to receive 
 reward for services rendered, whether as salary or wages, 
 or as a pension. 
 
 Chapter IY. is divided into sections, so as to show the 
 effect of the legislation relating to the subject from 1870 
 to 1882.
 
 2961 
 
 Book III. 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Summary of 
 methods of 
 execution 
 against land 
 already dis- 
 cussed. 
 
 Creditor's 
 remedy 
 
 CHAPTER I. 
 
 EQUITABLE EXECUTION. 
 
 debtor's 
 equitable in- 
 terests in land 
 prior to 1 & 2 
 Viet. c. 110. 
 
 SECT. I. ACTION TO ENFORCE A JUDGMENT OR ORDER 
 AGAINST INTERESTS IN LAND. 
 
 WE have seen that a judgment creditor was, by virtue of 
 the Statute of Westminster, entitled to enforce the writ of 
 elegit against all legal estates in land which belonged to the 
 debtor at the date of the judgment, or became his at any 
 subsequent period. This right has never been extended 
 to equitable interests of the debtor, and has always been 
 taken as entirely irrespective of the fact that at the time 
 of the extent the land might be in the hands of third 
 persons. Where, however, these third persons were either 
 purchasers, mortgagees, or creditors, they were protected 
 by the Acts passed from time to time providing for 
 registration of judgments. 
 
 Before the statute to which we have so frequently 
 referred of 1 & 2 Yict. c. 110, a judgment creditor could, 
 in -certain cases, bring a suit in Chancery to have the 
 benefit of his judgment, and to render available the 
 equitable interests of the debtor in land. The jurisdiction 
 of the Court under this head has been termed the " Equity 
 of the Statute of Elegit," and the true nature of the 
 remedy provided has been thus described by Lord Cotten- 
 ham, in the leading case on the subject (a) : "The con- 
 
 (a) Neate v. Duke of Marlborough, 
 3 My. & Cr. 407, p. 416. Precisely 
 analogous to the equity of the 
 Statute of Elegit is the equity of 
 the Statute of Frauds, under which 
 
 equitable terms of years are made 
 available to execution creditors. See 
 Gore v. Bowser, 24 L. J. Ch. 316, 
 440.
 
 EQUITABLE EXECUTION. 297 
 
 elusion at which I arrive, however, as to what, on Chap. I. 
 principle, ought to be the rule, is derived from a con- - 
 
 sideration of the nature of the jurisdiction which the N ^ v , - Duke 
 
 Court exercises in such cases. That jurisdiction is not for b&rough. 
 
 the purpose of giving effect to a lien which is supposed to 
 
 he created by the judgment. It is true that for certain 
 
 purposes the Court recognises a title by the judgment, as 
 
 for the purpose of redeeming, or after the death of the debtor 
 
 having his assets administered, but the jurisdiction there 
 
 is grounded simply upon this, that inasmuch as the Court 
 
 finds the creditor in a condition to acquire a power over 
 
 the estate by suing out the writ, it does what it does in all 
 
 similar cases, it gives the party the right to come in and 
 
 redeem other incumbrancers upon the property." And, 
 
 again, " It is, therefore, not correct to say that, according 
 
 to the usual acceptation of the term, the creditor obtains a 
 
 lien by virtue of his judgment. If he had an equitable 
 
 lien he would have a right to come here and have the 
 
 estate sold (b) ; but he has no such right. What gives a 
 
 judgment creditor a right against the estate is only the act 
 
 of parliament (13 Ed. 1, c. 18) ; for, independently of that, 
 
 he has none. The Act of Parliament gives him, if he 
 
 pleases, an option by the writ of elegit the very name 
 
 implying that it is an option which, if he exercises, he is 
 
 entitled to have a writ directed to the sheriff to put him in 
 
 possession of a moiety of the lands. The effect of the 
 
 proceeding under the writ is to give to the creditor a legal 
 
 title, which, if no impediment prevent him, he may enforce 
 
 at law by ejectment. If there be a legal impediment, he 
 
 then comes into this Court, not to obtain a greater benefit 
 
 than the law, that is, the Act of Parliament, has given 
 
 him, but to have the same benefit, by the process of this 
 
 Court, which he would have had at law if no legal 
 
 impediment had intervened" (c). His Lordship then went 
 
 (b) For present law, vide infra, (e) Page 417. 
 
 p. 300 et seq.
 
 298 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 The creditor's 
 action for re- 
 demption. 
 
 Equitable 
 estates ac- 
 quired after 
 judgment. 
 
 on to decide that the issue of the writ of ekgit was a 
 condition precedent to the right of relief in equity (d] . 
 
 The nature of the jurisdiction thus exercised by Courts 
 of Chancery has formed the subject of discussion in a 
 recent case, where Cotton, L. J., emphasizes the point that 
 the proceedings in equity were instituted and pursued for 
 the purpose of removing difficulties standing in the way 
 of legal execution (e). It is this remedy which, until 
 comparatively recent times, was alone known as " equitable 
 execution" (/). 
 
 The suit to remove legal impediments was in the form 
 of a suit for redemption of the prior incumbrancers stand- 
 ing in the way of legal execution. An action of this kind 
 is still an available (g), and in some cases the most advisable, 
 method of execution. The right of the judgment creditor 
 to maintain the action is not based on his having a charge 
 over the land by virtue of his judgment, for he has none. 
 The whole of his right is referable to the extension of the 
 principles of the Statute of Elegit to equitable estates. 
 The rules which we have seen regarded in the case of writs 
 of elegit are followed in this action, so far as they can be 
 applied (h). 
 
 In the same way, therefore, that legal estates acquired 
 by the debtor subsequently to judgment are liable to be 
 taken under an elegit, so an equitable interest may found 
 the right of the creditor to an action of redemption, not- 
 withstanding that the debtor has acquired such equitable 
 
 (d) Vide infra, p. 303. 
 
 (e) Anglo-Italian Bank v. Davies, 
 9 Ch. D. at p. 290. 
 
 (/) In the exercise of this juris- 
 diction legal principles were strictly 
 followed. See, for example, the 
 cases of Stileman v. Ashdown, 2 Atk. 
 608; Tunstall v. Trappes, 3 Sim. 
 300 ; Stonehetverv. Thompson, 2 Atk. 
 440 ; and Prid. Judg. p. 29 et seq. 
 
 (ff) The statute 1 & 2 Viet. c. 1 10, 
 does not affect the right of the cre- 
 ditor to this remedy, Partridge v. 
 Foster, 34 Beav. 1 : nor does sect. 1 
 of 27 & 28 Viet. c. 112. Anglo- 
 Italian Bank v. Davies, 9 Ch. D. 
 275. 
 
 (h) And therefore the plaintiff 
 has a right to a receiver. See prin- 
 ciple asserted, Davis v. Duke of 
 Marlborough, 2 Swanst. at p. 132.
 
 EQUITABLE EXECUTION. 299 
 
 interest subsequently to judgment. At the same time a Chap. I. 
 judgment at law never " bound " equitable estates in land, ec ' 
 and the purchaser from a debtor of such an estate was not, 
 unless he had express notice, affected by judgments entered 
 up against the debtor (/). The Court was in such cases 
 dealing with equitable interests only, and would not give its 
 assistance against a purchaser for value without notice (A). 
 This point serves to illustrate the nature of the jurisdiction, 
 but is now of little practical importance, for the reason that, 
 by sect. 1 of 27 & 28 Viet. c. 112, no judgment shall affect 
 land until the same shall have been actually delivered in 
 execution (/). It should be said that, at the present time, 
 the question of notice or no notice of a former judgment 
 or a former charge has no effect upon the position of the 
 execution creditor (tn). 
 
 The action for redemption, or for removal of legal im- The action 
 pediments, is the most convenient proceeding where the ^on^ ' emp ~ 
 equitable estates are of considerable extent or value, or 
 where the necessity is likely to arise for many applications 
 to the Court by reason of conflicting or numerous interests. 
 It is needless to add that, the action being once instituted, 
 all necessary interlocutory orders, such as the appointment 
 of a receiver or an injunction, will be granted (w). 
 
 (t) Xyster v. Iiolland, 1 Ves. jr. (F) Vide infra, for discussion of 
 
 431 ; Hurden v. Kennedy, 3 Atk. this section. 
 
 739; Sugd. V. & P. 14th ed. 521. (m) In like manner, the decision in 
 An equity of redemption is not ex- Greswold v. Mar sham, 2 Ch. Ca. 170, 
 tendible under the statute, and where it was held that a mortgagee 
 delivery of the writ to the sheriff could not, by foreclosing the mort- 
 is not implied notice of an execu- gagor, escape the liability to pay a 
 tion. judgment creditor who had given 
 
 (k) The effect is analogous to him notice, is, in one sense, of an- 
 
 the operation of the Statute of tiquarian interest only. The right 
 
 Frauds. "While a judgment binds of the execution creditor at the 
 
 the legal estate of a party from the present day depends upon delivery 
 
 time it is signed, it only affects such in execution. 
 
 trust property as he is possessed of () See, for cases of injunctions, 
 at the time of execution sued." Thornton v. Finch, 4 Giff. 515; Yes- 
 Harris v. Pugh, 4 Bing. 335. combe v. Landor, 28 Beav. 80.
 
 300 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. Immediately the action is commenced, it should be 
 Lis pendens. registered as a Us pendens, notwithstanding that it is said 
 that the fact of such commencement is an actual delivery 
 in execution within the meaning of sect. 1 of 27 & 28 
 Yict. c. 112, above mentioned. An advantage of proceed- 
 ing by way of this action is apparent when it is desired to 
 to sell any of the property. 
 
 Sale of land A. power of sale is given to the Court by sect. 4 of 
 27 & 28 Viet. c. 112, which is in substance as follows : - 
 
 " Every creditor to whom any land of his debtor shall 
 have been actually delivered in execution (o) by virtue of 
 any judgment, statute, or recognizance, and whose writ or 
 or other process of execution shall be duly registered, shall 
 be entitled forthwith, or at any time afterwards while the 
 registry of such writ or process shall continue in force, to 
 obtain from the Court of Chancery, upon petition in a 
 summary way, an order for the sale of his debtor's interest 
 in such land, and every such petition may be served upon 
 the debtor only ; and thereupon the Court shall direct all 
 such inquiries to be made as to the nature and particulars 
 of the debtor's interest in such land, and his title thereto, as 
 shall appear to be necessary or proper ; and in making 
 such inquiries, and generally in carrying into effect such 
 order for sale, the practice of the said Court with respect 
 to sales of real estates of deceased persons for the payment 
 of debts shall be adopted and followed so far as the same 
 may be found conveniently applicable." 
 
 Priorities of And by sect. 5 of the same statute, "Any other creditors 
 ^petition! 1 " * entitled to the benefit of a charge (whether prior or subse- 
 quent to the charge of the petitioner) shall be served with 
 notice of the said order for sale, and shall after such 
 service be bound thereby, and shall be at liberty to attend 
 the proceedings under the same, and to have the benefit 
 thereof ; and the proceeds of such sale shall be distributed 
 
 (o) This refers to the provision of sect. 1 of the same act, discussed 
 infra, p. 307.
 
 EQUITABLE EXECUTION. 301- 
 
 among the persons who may be found entitled thereto, Chap. I. 
 according to their respective priorities." 
 
 The remedy given by these enactments is well adapted Application 
 to the case of land taken in execution under an elegit 
 where the debtor has a saleable interest (p) ; for, in such a 
 case, both the legal and equitable estates in the land will 
 pass to a purchaser on the sale. In the case of equitable Application 
 execution, however, the benefit to be derived from this execution, 
 statute is not so apparent. Only the debtor's interest can 
 be sold upon a petition presented under it, and therefore it 
 is not advisable, where execution is put in force against 
 equitable interests, to proceed in that manner, specially as 
 there exists a less cumbrous machinery in all cases where 
 the action for redemption, or what is the same thing, 
 for removal of legal impediments, has been begun by 
 the judgment creditor. 
 
 By sect. 25 of the Conveyancing and Law of Property Power of sale 
 Act, 1881 (q), " (1) Any person entitled to redeem mort- yancSg" 
 gaged property may have a judgment or order for sale Act, 1881. 
 instead of for redemption in an action brought by him 
 either for redemption alone, or for sale alone, or for sale or 
 redemption in the alternative. 
 
 " (2) In any action, whether for foreclosure, or for re- The power of 
 
 , ,. i e ,-, , , . the Court to 
 
 demption, or for sale, or ior the raising and payment in or( j er a ^^ 
 any manner of mortgage money, the Court, on the request 
 of the mortgagee, or of any person interested either in 
 the mortgage money or in the right of redemption, and 
 notwithstanding the dissent of any other person, and not- 
 withstanding that the mortgagee or any person so inte- 
 rested does not appear in the action, and without any time 
 for redemption or for payment of any mortgage money, 
 may, if it thinks fit, direct a sale of the mortgaged pro- 
 
 (p) He Bishop Waltham y. Co., redemption without the consent of 
 
 L. E,. 2 Ch. 382. all parties, just as there was no 
 
 (q) 44 & 45 Viet. c. 41. Formerly power of sale at law under an 
 
 there was no power to order a sale elegit. 
 of the property in an action for
 
 302 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Security for 
 costs. 
 
 Sale without 
 determination 
 of priorities. 
 
 Contrasting 
 the two 
 enactments. 
 
 perty on such terms as it thinks fit, including, if it thinks 
 fit, the deposit in Court of a reasonable sum fixed by the 
 Court to meet the expenses of sale, and to secure perform- 
 ance of the terms. 
 
 " (3) But in an action brought by a person interested in 
 the right of redemption and seeking a sale, the Court may, 
 on the application of any defendant, direct the plaintiff 
 to give such security for costs as the Court thinks fit, 
 and may give the conduct of the sale to any defendant, 
 and may give such directions as it thinks fit respecting the 
 costs of the defendants or any of them. 
 
 " (4) In any case within this section, the Court may, if 
 it thinks fit, direct a sale without previously determining 
 the priorities of incumbrancers. 1 
 
 " (5) The section applies to actions brought either before 
 or after the commencement of the Act. 
 
 " (6) The enactment described in Part II. of the Second 
 Schedule to the Act is repealed " (r). 
 
 It is only under the two enactments of sect. 4 of 27 & 
 28 Viet. c. 112, and sect. 25 of 44 & 45 Yict. c. 41, above 
 quoted, that the Court has any power to direct a sale of 
 lands taken in execution (s). 
 
 With regard to the construction which by judicial de- 
 cision has been placed upon the two sections, it is sufficient 
 here to say that it is a condition precedent to any petition 
 for sale under 27 & 28 Yict. c. 112, that the land should 
 have been actually delivered in execution (t), and that 
 
 (r) 15 & 16 Viet. c. 86, s. 48. 
 This enactment was narrower than 
 the above section. Lord Romilly 
 refused to order a sale under it 
 in the absence of the judgment 
 debtor. Jones v. Bailey, 17 Beav. 
 582. 
 
 (s) The statement is perhaps not 
 correct, for it is doubtful to what 
 extent sect. 55 of 15 & 16 Viet. c. 86, 
 giving power to the Court to sell 
 in any suit instituted in relation to 
 
 real estate, has been repealed by 
 46 & 47 Viet. c. 49. See sects. 3, 
 5 (b), and 6 (c). 
 
 (t) The particular meaning given 
 to this phrase is discussed infra, 
 when we come to treat of the pro- 
 visions of sect. 1 of 27 & 28 Viet. 
 c. 112. Union Bank of London v. 
 Ingram, 20 Ch. D. 463 ; Woollcy v. 
 Colman, 21 Ch. D. 169 ; Weston v. 
 Davidson, W. N. 1882, 28.
 
 EQUITABLE EXECUTION. 303 
 
 where an action for redemption or foreclosure has been Chap. I. 
 begun, no such condition is necessary, but the application ' 
 
 for a sale can be made at any time. 
 
 The issue of a writ of elegit was, as we have seen, where Writ of elegit 
 the judgment debtor had nothing but equitable interests 
 in land, necessary to found the subsequent suit for redemp- 
 tion. Now, however, it has been, in considered decisions, 
 held to be unnecessary. The writ of elegit is, in such 
 cases, "a useless and absurd form " (u). Although there 
 is no decision on the precise point, it is submitted that the 
 execution creditor may maintain his action, notwithstand- 
 ing that the debtor has legal estate against which the writ 
 of elegit could run, as well as equitable estate against 
 which equitable execution is the only remedy (a?). 
 
 All proceedings to enforce a judgment or order against Originating 
 equitable interests in land by way of redemption, or re- 
 moval of legal impediments, must now be taken by origi- 
 nating summons under Ord. LY. r. 15a (y). 
 
 SECT. 2. THE CHARGE GIVEN BY SECT. 13 OF 
 1 & 2 YICT. c. 110. 
 
 Entirely separate and distinct from the right of the Judgment 
 judgment creditor to proceed, as we have seen, by action 
 
 for redemption, is the right to a charge given him by charge under 
 sect. 13 of 1 & 2 Viet, c. 110. c. no, a? is. 
 
 That section provides, in effect, that a judgment against 
 any person shall operate as a charge upon all lands, tene- 
 ments, rectories, advowsons, tithes, rents and heredita- 
 ments (including lands and hereditaments of copyhold or 
 customary tenure), of or to which such person shall, at the 
 
 
 
 (w) Ex parte Evans, Re Watkins, D. 275. 
 
 13 Ch. D. 252 ; following Hattonv. (x) See In re Pope, 17 Q. B. D. 
 
 Haywood, L. R. 9 Ch. 229; and 743. 
 Anglo-Italian Sank v. Davies, 9 Ch. (y) Vide infra, p. 311.
 
 304 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Effect of 
 section. 
 
 time of entering up such judgment, or at any time after- 
 wards, be seised, possessed, or entitled for any estate or 
 interest whatever at law or in equity, whether in posses- 
 sion, reversion, remainder, or expectancy, or over which 
 such person shall, at the time of entering up such judg- 
 ment, or at any time afterwards, have any disposing power 
 which he might, without the assent of any other person, 
 exercise for his own benefit, and shall be binding as against 
 the person against whom judgment shall be so entered 
 up, and against all persons claiming under him after such 
 judgment, and shall also be binding as against the issue 
 of his body, and all other persons whom he might, without 
 the assent of any other, cut off and debar from any re- 
 mainder, reversion, or other interest in the said lands, tene- 
 ments, rectories, &c. ; and the section goes on to provide 
 that the judgment creditor shall have such and the same 
 remedies in a court of equity against the hereditaments 
 so charged by virtue of the Act, or any part thereof, as 
 he would be entitled to in case the judgment debtor had 
 power to charge the same hereditaments, and had by writ- 
 ing under his hand agreed to charge the same. Then 
 follows a proviso that no judgment creditor shall be entitled 
 to proceed in equity to obtain the benefit of such charge 
 until after the expiration of one year from the entering of 
 the judgment, nor shall such charge operate to give the 
 judgment creditor any preference in case of the bankruptcy 
 of the person against whom judgment shall have been 
 entered up, unless such judgment shall have been entered 
 up one year at least before the bankruptcy. The last 
 proviso of the section is that it is not to alter the doc- 
 trines of equity with reference to purchasers for valuable 
 consideration (2). 
 
 Under this section, that which formerly by force of the 
 Statute of Westminster was a " sort of general lien " upon 
 
 (z) See the section and general notes, Chitty's Statutes, sub tit. Judg- 
 ment.
 
 EQUITABLE EXECUTION. 305 
 
 lands, now, by force of express enactment, becomes a Chap. L 
 specific lien; words cannot be more express (a). More- 
 
 over, the specific lien affects equitable just as it does legal 
 estates, a result which did not happen, as we have seen, 
 under the Statute of Elegit. 
 
 It will be observed that the judgment creditor cannot No proceed- 
 proceed in equity to obtain the benefit of his charge until ^i v e r 
 the expiration of one year after its instance. Even then months, 
 the creditor's lien is subject to this, that no bankruptcy of 
 the debtor shall have intervened in that year (b) . The 
 statute itself provides no means of preserving the charge 
 given by it, but this does not prevent the execution 
 creditor taking steps to protect the subject-matter of his 
 security, and, where necessary, to obtain a receiver (c) . 
 The exercise of this protective jurisdiction may, perhaps, 
 be justified on the general ground of right to remove legal 
 impediments, quite apart from the statute or the charge 
 given by it (c). The action for protection of the security Action to be 
 should be registered as a Us pendens (d). It^penLns** 
 
 By the 19th section of the Act the judgment could Registration 
 not affect any lands, nor, therefore, could the charge be necessai 7- 
 effectuated until the judgment had been duly registered (e). 
 The necessity for registration of judgments under that 
 Act has, however, been done away with, and a system of 
 registration of the writ, or, other process of execution 
 substituted. No other registration is now necessary for 
 any purpose (/). It would appear, therefore, that a 
 
 (a) RolUston v. Morton, 1 Dr. & See also, in analogous case of stock, 
 War. 171, p. 195. The expression Brisled v. Wilkins, 3 Ha. 235. 
 
 of Lord Chief Justice Denman, (d) Lane v. Jackson, 20 Beav. 
 
 that before the Act judgment ere- note on p. 540. 
 
 ditors only had a " hovering secu- (e) The Act does not provide 
 
 rity," is singularly appropriate. that no suit shall be instituted 
 
 Bond v. Bell, 4 Drew. 157. until one year after registration, 
 
 (b) Note the dictum of James, but only until one year after judg- 
 L. J., Ex parts Evans, Re TTatkins, ment. Derbyshire $ Staffordshire 
 13 Ch. D. 252, p. 256. JRy. Co. v. Bainbrigge, 15 Beav. 
 
 (c) Partridge \. Foster, 34 Beav. 146. 
 
 1 ; Yeneombe v. Landor, 28 Beav. 80. (/) 27 & 28 Viet. c. 112, s. 3. 
 
 E. X
 
 306 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. creditor commencing an action to obtain the benefit of 
 this statutable charge should register the action, both 
 under 23 & 24 Yict. c. 38, and as a Us pendens. 
 Estate of the As to the interest of the debtor which is chargeable, 
 
 debtor charge- ,-,,.. ,, , , -, , , , 
 
 able. the section is express, " any estate whatever at law or in 
 
 equity " (g). A judgment creditor is not a purchaser. 
 His judgment is not signed or entered with a view to 
 acquiring an interest in his debtor's land, and the section 
 only gives him a new remedy, less circuitous than that to 
 which before he was compelled to resort (li) . Moreover, 
 the section gives rights only as against the debtor, that is 
 to say, the charge operates only on that which was his 
 property. The section, therefore, of itself, gives no right 
 as against a prior conveyance, whether upon good con- 
 sideration or voluntary (i) . 
 
 Creditors It appears from the language of the section that the 
 
 closure. creditor taking authorised proceedings has a right to an 
 
 order for foreclosure, and the right has been continually 
 
 recognised (&). The late Master of the Eolls, however, on 
 
 grounds which do not appear from the report, refused such 
 
 an order, although the judgment creditor was entitled to 
 
 equitable execution, and its consequent remedy of sale (/) . 
 
 This decision seems to be an isolated one, and there 
 
 appears to be no reason why, in the few cases in which the 
 
 (g) Russell v. M' Culloch, 1 K. & (k) Jones v. Bailey, l7Beav. 582; 
 
 J. 313; Avison v. Holmes, 1 J. & Xiissellv.M'CuUoch, 1 K. & J. 313; 
 
 H. 530. This does not mean pro- Messer v. Boyle, 21 Beav. 559 ; 
 
 ceeds of sale of lands. Thomas v. Beckett v. Buckley, L. E. 17 Eq. 
 
 Cross, 2 Dr. & S. 423. 435. 
 
 (K) Beavan v. Earl of Oxford, 6 (1) Wells v. Kilpin, L. R. 18 Eq. 
 
 De G. M. & G. 507. The principle 298 ; 44 L. J. Ch. 184, where the 
 
 was recognized even before the sta- question does not seem to have 
 
 tute. Brace T. Duchess of Marl- suggested itself that the creditor 
 
 borough, 2 P. Wins. 491 ; Ex parte might be entitled to a charge under 
 
 Enott, 11 Ves. at p. 617. this sect. 13. See also Footner v. 
 
 (i) Beavan v. Earl of Oxford, 6 Sturgis, 21 L. J. Ch. 741. In Ford 
 
 De G. M. & G. 507, p. 520 et seq. ; v. Wastell, 2 Phil. 591, the defen- 
 
 Eyrev.M'JDowell, 9 Ho. L. Cas. 619. dant had agreed to the foreclosure 
 
 decree being made.
 
 EQUITABLE EXECUTION. 307 
 
 section has now any application, the charge should not be Chap. I. 
 rendered effectual by a judgment of foreclosure. As to 
 
 the parties to the action claiming foreclosure, the debtor 
 and incumbrancers subsequent to the creditor are neces- 
 sary (m). Creditors are such incumbrancers only in case 
 the land is (since 27 & 28 Yict. c. 112) actually delivered 
 in execution, or in case their judgment operates as a charge 
 under this sect. 13 independent of actual delivery. 
 
 By sect. 1 of 27 & 28 Viet. c. 112, to which we have 27 & 28 Viet, 
 frequently had occasion to refer (w), "No judgment, statute, 
 or recognizance to be entered up after the passing of the 
 Act is to affect any land (of whatever tenure) until such 
 land shall have been actually delivered in execution by 
 virtue of a writ of elegit or other lawful authority in pur- 
 suance of such judgment, statute, or recognizance." 
 
 The effect of this section upon the sect. 13 which we Is sect. 13 of 
 have been discussing has formed the subject of somewhat * ^ ^ 
 conflicting judicial dicta. It appears to have been the pealed? 
 opinion of the late Vice- Chancellor Malins that the later 
 enactment repealed the earlier altogether (o). But it is 
 submitted that such is not the case (p). There is no doubt 
 that since the passing of 27 & 28 Viet. c. 112, in cases 
 where that Act applies, a judgment does not ipso facto, and 
 notwithstanding the express provisions of sect. 13 of 1 & 2 
 Viet. c. 110, give a charge to the judgment creditor. 
 
 Something more than the mere judgment is required, 
 viz., that the land should be actually delivered (q). This 
 manifestly can only extend to such estates or interests as 
 by their nature admit of an actual delivery (r). Section 
 
 (m) See Earl of Cork v. Russell, (p) Hatton v. Haywood, 9 Ch. 
 
 L. R. 13 Eq. 210; Eolkston v. 229; Beckett \.Buckley, L. E. 17 
 
 Morton, 1 Dr. & W. 171. Eq. 435 ; Mildred v. Austin, L. K. 
 
 () Vide supra, pp. 177, 299. 8 Eq. 220. 
 
 (o) Re Bailey's Trust, 38 L. J. Ch. (q) Guest v. Cowbridge Ry. Co., 
 
 237 ; Earl of Cork v. Russell, L. R. L. R. 6 Eq. 619. 
 
 13 Eq. 210. See Re Luke of New- (r) Button v. Haywood, 9 Ch. 
 
 castle, L. R. 8 Eq. 700 passim. 229. See Anglo-Italian Bank v. 
 
 X 
 
 r 9
 
 308 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 13 ? however, has always extended to many interests in 
 land which cannot by their nature be delivered in any 
 sense. It is submitted that the charge given by the 
 section over such interests is still a good charge, and that 
 the section is to this extent unaffected by subsequent 
 legislation. 
 
 Interest of An example of such an interest in land is that of an 
 
 landTs seize 3 !, execution debtor whose land has already been seized under 
 an elegit. Such an interest cannot be taken in execution 
 by any legal method (r), nor can it be delivered in execu- 
 tion. A petition for sale of the lands under sect. 4 of 
 27 & 28 Viet. c. 112, cannot therefore be presented, and 
 the creditor is thrown back on such other remedy as he 
 may have (s). This, it is submitted, is twofold : to proceed 
 by action for removal of legal impediments, in other 
 words, for redemption under the equitable jurisdiction to 
 which we have already referred in this Chapter (), or to 
 have recourse to the charge given him by sect. 13. In 
 either case, under the new practice, his claim should be 
 both for foreclosure and redemption. 
 
 Another example of the application of sect. 13, where 
 the remedy it gives is the proper, if not the only, means of 
 execution, is the case where the debtor is mortgagee of 
 lands, whether freehold, leasehold, or copyhold (). The 
 machinery for putting an elegit in force is not adaptable to 
 this case, for, apart from the great difficulty under a tenancy 
 by elegit of working out the rights and duties of mort- 
 gagor and mortgagee, an inquest cannot judge of legal 
 
 Debtor 
 mortgagee of 
 lands. 
 
 Davies, 9 Ch. D. at p. 283 ; Re The 
 Duke of Newcastle, L. R. 8 Eq. 700; 
 Backhouse v. Siddle, 38 L. T. 487. 
 
 (r) Carter v. Hughes, 2 H. & N. 
 714. 
 
 (*) Re Cowbridge Ry. Co., L. K. 
 5 Eq. 413. 
 
 (t) Sect. 1, supra. 
 
 (u) The power to seize, under a 
 f,. fa., the document constituting 
 
 the mortgage, as being a security 
 for money within sect. 12 of 1 & 2 
 Viet. c. 110, must not be forgotten. 
 Where, however, such seizure is 
 made, it would appear that the 
 sheriff being only empowered to 
 hold the document the creditor 
 would be relegated to his remedy 
 under sect. 13.
 
 EQUITABLE EXECUTION. 309 
 
 title only, the basis of the jury's finding being, for the Chap. I. 
 most part, the possession of the debtor. It is here, there- 
 
 fore, that the charge given by this 13th section has a 
 special value, and should be put in force by means of an 
 action (x) . 
 
 Where a judgment debtor is entitled to an annuity Annuity 
 under a covenant, secured by an assignment of leasehold f^"f * by i 
 property to the debtor upon trusts for sale and to pur- of leaseholds, 
 chase a government annuity in default of performance of 
 the covenant, his interest in the leaseholds could not be 
 seized or sold under a writ of fieri facias (y). It is at least 
 doubtful whether they could be extended under an elegit ; 
 and in saying so we do not omit to consider the very 
 general words contained in sect. 11 of 1 & 2 Yict. c 110, 
 giving power to deliver execution of any lands over which 
 the debtor has " any disposing power." Further, as will 
 be more clearly seen when we come to discuss the remedy 
 of execution by the appointment of a receiver, it does not 
 seem to apply. This is for the reason that the right to a 
 receiver over land depends upon the right in equity of the 
 creditor to remove legal impediments against his execution. 
 It is very questionable, therefore, whether such a remedy is 
 properly applicable to a case like that of the annuitant 
 under discussion. It thus appears that the only mode of 
 execution which a creditor would have against the lease- 
 hold property in this case would be by proceeding to 
 enforce the charge undoubtedly given him by the 13th 
 section (z). 
 
 Another example of the effective operation of sect. 13 is Remainder, 
 that of a remainder, whether legal or equitable. A re- 
 mainder is undoubtedly charged by the section. Such an 
 
 (x) Clare v. Wood, 4 Hare, 81 ; (z) Harris v. Damson, 15 Sim. 
 
 Russell v. M'Culloch, 1 K. & J. 313; 128. The precise form which the 
 
 1 Jur. N. S. 157. order in such an action would take 
 
 (y) See supra, Scott v. Scholey, 8 is a matter of some difficulty. 15 
 
 East, 467 ; and generally, chapter Sim. p. 134, note. 
 on the writ of Jieri facias.
 
 310 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Debtor's 
 estates tail. 
 
 The judg- 
 ment in the 
 action. 
 
 estate in land cannot by any process other than this charge 
 be taken in execution at all. We have already seen that 
 it was an estate to which no rent or services were incident, 
 and, therefore, that an elcgit did not cover it (a) ; but in 
 the view of the writer, sect. 13, not having been repealed, 
 still applies, so that a remainder can be made available, 
 subject to the requisite conditions being complied with, to 
 the payment of the execution creditor's debt, and an action 
 to foreclose the debtor sustained (b). 
 
 Again, we have discussed the creditor's remedy by the 
 writ of elegit, as extended by the llth section of 1 & 2 
 Yict. c. 110, against the debtor's estates tail. The effect of 
 that writ, as against the issue in tail, is, as we have seen, 
 doubtful (c). The charge, however, given by sect. 13 is 
 binding against them by its express terms (d}, A. judg- 
 ment creditor, therefore, seeking to enforce execution 
 against entailed land, can issue the elcgit which will, 
 at any rate, be good for the judgment debtor's life, and 
 then, after waiting the prescribed period, take proceedings 
 to get the benefit of the charge by separate action. This 
 is another case in which, if not repealed, the charge given 
 by the section might be of practical value, notwithstanding 
 27 & 28 Viet. c. 112. 
 
 The claim in an action to obtain the benefit of the 
 charge given by sect. 13 is for foreclosure, and in the 
 alternative for a sale of the premises. The Court has 
 power to order a sale under sub-sect. 2 of sect. 25, Con- 
 veyancing Act, 1881, to which we have already referred, 
 and subject to the conditions therein laid down. The 
 judgment given in the action is the ordinary foreclosure 
 judgment, provision being made for other judgment 
 
 (a) Re South, 9 Ch. 369. See 
 dictum, of Lindley, L. J., In re 
 Hamilton, 31 Ch. D. 291. 
 
 (b) In re Duke of Newcastle, L. E,. 
 8 Eq. 700, which may be said to be 
 a decision against this view, was 
 merely a refusal to afford the par- 
 
 ticular remedy of a sale on petition 
 presented under 27 & 28 Viet. c. 112. 
 
 (c) Supra, p. 176. 
 
 (d) A disentailing deed is, how- 
 ever, still necessary, according to 
 Lewis v. Duncombe, 20 Beav. 398.
 
 EQUITABLE EXECUTION. 311 
 
 creditors besides the plaintiff to come in, at any rate, Chap. I. 
 where they are parties to the action (e). ec * ' 
 
 It should be mentioned that, both in the action for Summons for 
 redemption or removal of impediments, and in the action r ^^^tion. r 
 for foreclosure, the proper procedure is to issue a summons - kV. r. 5a. 
 under 0. LY. r. oa, and not a writ. It is also suggested 
 that in all proceedings of this nature, prior and subsequent 
 incumbrancers, as well as the owner of the ultimate equity 
 of redemption, should be made parties, and the claim made 
 both for redemption and foreclosure. 
 
 SECT. 3. RECEIVERS. 
 
 SUB-SECT, (i). When Receivers are appointed. 
 
 We have already mentioned that in a proper case a Eeceivers. 
 receiver will be appointed of the property, over which it 
 is desired to put in execution. We have hitherto delayed 
 the discussion of this particular remedy for the reason 
 that, as the appointment can now be made summarily, 
 and without the necessity of an action at all, it is more 
 frequently resorted to than any other method of equitable 
 execution. The jurisdiction of the Court to appoint a 
 receiver is purely equitable (/), and of the widest descrip- 
 tion, but we have only to do with those cases where it is 
 exercised in order to obtain the benefit of a judgment, or 
 order for payment of money. 
 
 By sub-sect. (8) of sect. 25 of the Judicature Act, 1873, Receiver 
 "A mandamus, or an injunction, may be granted, or a 
 
 receiver appointed by an interlocutory order of the Court y ie ? t- A , 
 
 in all cases in which it shall appear to the Court to be just 1873, s. 25, 
 
 sub-s. 8. 
 
 (e) See form in Mildred v. Austin, deemed within six months. Carlon 
 
 L. R. 8 Eq. 220, where the order v. Farlar, 8 Beav. 525. 
 was for a sale, subject to the in- (/) Mitf. PI. 133 ; Kerr on Re- 
 
 cumbrances, unless the debtor re- ceivers, Ch. I.
 
 312 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Effect of this 
 enactment on 
 rights of 
 judgment 
 creditor. 
 
 Summary ap- 
 pointment of 
 
 The power of 
 the court 
 under the 
 sub -section. 
 
 or convenient that such order should be made, .... 
 whether the estates claimed by both or either of the parties 
 are legal or equitable." 
 
 With regard to an execution creditor, who takes pro- 
 ceedings for the removal of the legal impediment, this 
 enactment introduces an innovation. He could always in 
 such proceedings obtain a receiver for the protection of 
 his interest, but the receiver's title was subject to the legal 
 authority, whatever it was, e. g., elegit or fi. fa., under 
 which the property in question had been delivered in 
 execution. 
 
 A greater practical innovation has, however, been 
 wrought by the section in cases other than those where 
 an action is brought to remove legal impediments. The 
 procedure in these cases has been simplified by the decision 
 that the phrase in the sub-section, " interlocutory order," 
 includes an order which may be made after final judg- 
 ment, and that, therefore, a receiver can be applied for by 
 summons in chambers and obtained after the judgment, 
 and without the necessity of beginning a fresh action (g) . 
 Taken in conjunction with the decision that the prior 
 issue of an elegit is now unnecessary, a receiver is thus in 
 a simple manner placed within the reach of every judg- 
 ment creditor. 
 
 The words of the sub-sect. (8) are very wide, and give 
 to all the Divisions a larger power than before the Judica- 
 ture Acts the Court of Chancery possessed (K) . Another 
 view of the effect of the words seems to be that they give 
 the Court a wider discretion merely, not a greater juris- 
 diction (?) . It is clear that, whether under the name of a 
 
 (ff) Smith v. Cotoell, 6 Q. B. D. 
 75. See Salt v. Cooper, 16 Ch. D. 
 544. It is said that since the ap- 
 pointment of a receiver can be 
 obtained summarily, an action 
 therefor is primd facie vexatious. 
 Proskauer v. Siebe, W. N. 1885, 
 159. This, however, from the con- 
 
 siderations appearing in sects. 1 
 and 2 of this chapter, seems ques- 
 tionable. 
 
 (h) Brett, L. J., in Smith v. 
 Cowell, 6 Q. B. D. p. 78. See, also, 
 Pease v. Fletcher, 1 Ch. D. 273 ; 
 Bryant v. Bull, 10 Ch. D. 153. 
 
 (i) See phraseology of judgment
 
 EQUITABLE EXECUTION. 313 
 
 wider discretion or increased jurisdiction, there is power in Chap. I. 
 
 the Courts, where it is just and convenient, to grant a 
 
 receiver wherever judgment has been recovered. 
 
 The application for a receiver is made in the action in The applica- 
 which the judgment or order has been made or given (k). receiver a 
 The application is usually made ex parte. Where, how- 
 ever, there are special circumstances in the case, for 
 example, it is suggested, where the title of the execution 
 debtor is not quite clear, it may become necessary for the 
 application to be made by motion or summons, of which 
 notice should be served upon him (/). Such cases, how- 
 ever, are of rare occurrence. In the Queen's Bench 
 Division it is the practice for the ex parte application to 
 be made by counsel before the judge in chambers. 
 
 The appointment of a receiver is said to be in the How far 
 discretion of the Court (ro). This is the correct view, at 
 any rate, where the Court is asked to provide for the 
 safety of property in dispute by placing it in medio 
 between the parties. It is then " the common interest of 
 all parties that the Court should prevent a scramble" (n). 
 But where a creditor has obtained judgment it may be 
 questioned whether, subject to the rule of court imme- 
 diately to be referred to, he is not entitled to a receiver 
 as of right (0) ; for on a judgment the receiver is not 
 appointed in order to preserve the property in medio, but 
 in order to enforce payment of the judgment debt. 
 
 By 0. L. r. 15a (October, 1884), "In every case in which Rule of court 
 an application is made for the appointment of a receiver 1 " 
 
 of Cotton, L. J., In re Pope, 17 fra, Forms, Nos. 101, 102. 
 
 Q. B. D. at p. 749, " a judgment (m) Skip v. Harwood, 3 Atk. 564. 
 
 creditor would have had great dim- () Owen v. Homan, 4 H. of L. 
 
 culty," &c. Cas. 997, p. 1032 
 
 (K) Though where one division (o) This would appear to have 
 
 of the Court has not jurisdiction been the view of the judges in 
 
 the judgment or order will be en- making the rule, O. L. r. loa, next 
 
 forced by another division. Olicer discussed, for if the matter be one 
 
 v. Lowlher, 42 L. T. 47. of pure discretion the rule seema 
 
 (?) For forms, see Appendix, in- hardly necessary.
 
 314 
 
 Book III. 
 
 Evidence in 
 support of 
 application. 
 
 Considera- 
 tions weigh- 
 ing 1 with the 
 Court. 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 by way of equitable execution, the Court or a judge, in 
 determining whether it is just or convenient that such 
 appointment should be made, shall have regard to the 
 amount of the debt claimed by the applicant, to the 
 amount which may probably be obtained by the receiver, 
 and to the probable costs of his appointment, and may, if 
 they or he shall so think fit, direct any inquiries on these 
 or other matters before making the appointment." 
 
 The affidavit or other evidence, therefore, used in 
 support of the application should set forth the particulars 
 of the debtor's property over which the receiver is sought. 
 The mortgage or mortgages thereon should be stated, the 
 rental or estimated rental should appear, and special 
 regard should be had to the value or estimated value of 
 the property, so as to show the value of the equity of 
 redemption over and above the mortgage (p). To dispose 
 of the evidence used on the application, there should be an 
 affidavit or affidavits (usually two) of fitness of the pro- 
 posed receiver, also a consent to act in writing, signed by 
 him and verified. 
 
 The order for a receiver is not made unless there is a 
 sufficient margin of value in the debtor's property to 
 justify his appointment, regard being had to the pro- 
 bability of the plaintiff getting paid part at the least of 
 his debt out of the funds to be received, and to the 
 expense attendant upon the appointment and subsequent 
 proceedings under the order, such as passing receiver's 
 accounts and the like. The amount of the judgment debt, 
 and also the probability of there being any advantage to 
 be gained by the appointment, are further considerations 
 having weight with the Court (<?). 
 
 (p) A suggested form of affida- 
 vit, with full directions, is to be 
 found in the Appendix, infra, No. 
 103. I. v. JT., W. N. 1884, 63. 
 
 (q) Form of order, Appendix, 
 infra, No. 105. "Where the judg- 
 
 ment debt was 201. only, the appli- 
 cation was refused. /. v. N., W. N. 
 1884, 63. The practice where the 
 judgment debt is not sufficient to 
 justify the expense of the receiver's 
 acting in the ordinary manner, but
 
 EQUITABLE EXECUTION. 315 
 
 In actions other than creditor's actions or proceedings it Chap. I. 
 is a rule generally followed that neither of the parties nor ec ' ^' 
 
 their solicitors shall he appointed receivers, although, under 
 
 special circumstances, such a course may be taken (r) . The receiver. 
 
 reason is the same in all these cases that no person ought 
 
 to control his own accounts (s) . In the case of an application 
 
 by a judgment creditor, the rule has not been taken to 
 
 apply with equal force ; for the plaintiff continually gets 
 
 himself appointed receiver, notwithstanding that the appli- 
 
 cation is ex parte. The terms upon which the appoint- 
 
 ments are made vary according to circumstances. It is Plaintiff ap- 
 
 not an uncommon order for the judgment creditor to get ceiver on"* 
 
 himself appointed without giving security, and on his terms. 
 
 acting without salary or remuneration (f). This is not a Security 
 
 proper order, it is submitted, where it is intended that gi en wll en 
 
 actual possession should be taken, for there, whoever is possession to 
 
 appointed receiver (and, for the reasons we have alleged, 
 
 it should be a third person), security ought to be given. 
 
 Where such third person is not going into actual possession, 
 
 the purpose of his appointment is merely to give a charge 
 
 over the property of the judgment debtor, and the creditor's 
 
 undertaking to be answerable for the receipts of the 
 
 receiver, without prejudice to prior incumbrancers, is all 
 
 that is necessary. In such a case, even a third person 
 
 need not give security (u). In ordinary cases, however, 
 
 the person appointed is meant to take possession by col- 
 
 lecting and receiving the rents and profits from those in 
 
 occupation of the property, and therefore security should 
 
 be given. 
 
 The order appointing the receiver usually provides that The security 
 
 to be given 
 
 is yet of sufficient amount to justify (*) Garland v. Garland, 2 Ves. Jr. 
 
 the appointment, e.g., between 351. 137. 
 
 and 501., an order is made in the (t) There was such an order in 
 
 form appearing in the note to Form Walmsley \. Mundy, 13 Q. B. D. 
 
 No. 105, Appendix, infra. 807. See' also Taylor v. Eckersley, 
 
 (r) Sargantv. Read, 1 Ch. D. 600 ; 2 Ch. D. 302. 
 
 Re Lloyd, Allen v. Lloyd, 12 Ch. D. () Hewett v. Murray, "W. N. 
 
 447, p. 451. 1885, 53.
 
 316 
 
 Book III. 
 
 by the re- 
 ceiver. 
 
 Delivery in 
 execution 
 under sect. 1 
 of 27 & 28 
 Viet. c. 112. 
 
 Date from 
 which, ap- 
 pointment 
 runs. 
 
 EQU1TATLE AND STATUTORY METHODS OF EXECUTION. 
 
 within a certain number of days he shall give security to 
 the satisfaction of the chief clerk, or of a master. The 
 security is in the form of a recognizance of the receiver, 
 with two or more sureties (x) . It is usually for double the 
 amount of the annual rental or yearly value of the estate 
 to be collected (y) . There is no doubt that the debtor, 
 being interested in the bona fides and substantial nature of 
 the security, has a right to be present when it is approved. 
 Notice should therefore be given him of the appointment 
 before the master or the chief clerk when the terms of the 
 security are settled (z). 
 
 SUB-SECT, (ii). The effect of the Receiver's Appointment. 
 
 Immediately the order is made there is a delivery in 
 execution satisfying sect. 1 of 27 & 28 Yict. c. 112 (), 
 and therefore a petition for sale of all the debtor's interest 
 in the land may be presented under sects. 4 and 5. The 
 creditor becomes immediately entitled to a charge over the 
 property, notwithstanding that the security may not have 
 been completed (b) . 
 
 In order to avoid any question as to the date from 
 which the receiver's appointment is to run, the order 
 
 should be framed : " Let E. E., of , be appointed 
 
 receiver to receive the rents and profits of, &c.," and should 
 
 (x) They must be bond fide sure- 
 ties, and not indemnified by control 
 of the fund to be received. White 
 v. Baugh, 3 01. & F. 44. 
 
 (y) As to security generally, see 
 Seton, 446 ; Kerr on Receivers, 
 112 et seq. For form, see Appen- 
 dix, infra, p. 447, Form No. 109. 
 
 (z) Strictly, a summons to pro- 
 ceed should be issued, but on an 
 appointment being obtained, it 
 would hardly appear necessary to 
 do more than give notice. 
 
 (a) Hatton v. Hay wood, 9 Ch. 
 
 229 ; Anglo-Italian Batik v. Danes, 
 9 Ch. D. 275 ; Ex parte Evans, Ee 
 Watkins, 13 Ch. D. 252 ; In re 
 Pope, 17 Q. B. D. 743. 
 
 (b) Ex parte Evans, Re Watkins, 
 13 Ch. D. 252. The giving of 
 security is not, under the usual 
 form of order, of importance in 
 respect to the date of his appoint- 
 ment, nor in relation to its validity. 
 The crucial point with regard to 
 chattels is whether the receiver has 
 in fact taken possession. Edwards 
 v. Edwards, 2 Ch. D. 291.
 
 EQUITABLE EXECUTION. 317 
 
 provide for security being given, thus : " And let the Chap. I. 
 . , , . ., , Sec. 3 (ii). 
 
 said receiver, on or before , give security, to be _ 
 
 approved of by one of the masters" (c). The effect of 
 this order is, that the receiver can act at once before giving 
 security, and the question of his authority so to do cannot 
 arise (d). 
 
 The position of a receiver when appointed is very similar Relative 
 to that of sequestrators under their writ. The principal reivers an <i 
 difference between them consists in the fact that, in the sequestrators. 
 order for the appointment of a receiver, the land, or other 
 property of which he is to take possession, should be clearly 
 denned and set forth (e) ; whereas the authority of seques- 
 trators extends to all property belonging to the contemnor. 
 Again, a receiver is granted only upon application to the 
 Court, but a writ of sequestration in many cases issues as 
 of right. The difference was formerly much greater, 
 because sequestrators, whose title was not recognised at 
 law, nevertheless were authorized to seize the contemnor's 
 property, whether it was legal or equitable ; whilst a 
 receiver was never appointed, except in respect of equitable 
 estates or interests (/). 
 
 The receiver is, in the terms of the order, " to receive General duty 
 the rents and profits" (g). He is not thereby authorized as taking 
 to oust anyone from possession. If any such course is possession, 
 necessary, the order should state that the possession is to 
 be delivered up to him (h). When land is vacant the 
 
 (c) See form in Appendix, infra, the distinctions are to be inferred, 
 p. 445, No. 105. rather than gathered, from the de- 
 
 (d) The question raised in Ex cisions themselves. Rowley v. Rid- 
 parte Evans, Re Jl r atkim, 13 Ch. D. ley, 3 Swanst. 306 ; Angel v. Smith, 
 252, could not, if the order had 9 Ves. 335 ; Goldsmith v. Goldsmith, 
 been framed in the manner sug- 5 Hare, 123. 
 
 gested, have arisen at all. Vide (g) See form in Appendix, infra, 
 
 infra. p. 445, No. 105. 
 
 (e) The importance of the pro- (h) Randfield v. Randfield, 7 W. 
 perty being clearly denned in the R. 651. It will be remembered 
 order is shown by Crow v. Wood, that the authority of sequestrators 
 13 Beav. 271. in this respect, though somewhat 
 
 (/) There are a few cases whence doubtful, is wider.
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Receiver 
 officer of the 
 Court. 
 
 Practice on 
 application 
 by third per- 
 son claiming 
 against the 
 receiver. 
 
 receiver is entitled to take actual possession, and if any 
 person is in possession he may be compelled to go out, or 
 to pay to the receiver an occupation rent (ti) . 
 
 When appointed, the receiver becomes an officer of the 
 Court, and entitled to its protection, so that any person 
 claiming a right to interfere with the possession actually 
 taken by the receiver must first obtain an order of the 
 Court authorizing the interference ('). This is so, notwith- 
 standing that the order appointing him contains express 
 protection for the rights of incumbrancers ; for the effect of 
 such a clause is, that where the incumbrancer is already in 
 possession the receiver requires a further order against him 
 to enforce his possession, and such further order will not be 
 made without his having an opportunity of combating it. 
 And where the receiver has taken possession the incum- 
 brancer must move the Court (/). 
 
 Where a third person intervenes, claiming a right to 
 possession as against the receiver, the practice to be fol- 
 lowed is as nearly as possible that of the Court of Chan- 
 cery on applications pro inter esse suo in the case of seques- 
 tration (jj] . There is no difficulty in working this out before 
 the judges and chief clerks of the Chancery Division ; but 
 since every judge has now power to appoint a receiver at 
 chambers of the Queen's Bench Division, the new duties 
 consequently cast upon the masters have occasioned some 
 difficulty. Just as we have seen is the case where such 
 applications are made under a writ of sequestration, a 
 summons is taken out by the claimant ; and in the 
 Chancery Division a chief clerk, or in the Queen's Bench 
 Division, a master, investigates the claim and makes his 
 certificate or report. The certificate of the chief clerk may 
 be varied on motion to the judge in Court. The report of 
 
 (A) See last note. And as to at- 
 tornment, see Forms in Appendix, 
 infra, Nos. 105107. 
 
 (i) As in Gooch v. Haicorth, 3 
 Beav. 428. The application should 
 be made in the action in which the 
 
 receiver has been appointed. Searle 
 v. Ohoat, 25 Ch. D. 723. 
 
 (/) Searle v. Choat, 25 Ch. D. 
 723. 
 
 (jj) Form of notice of motion in 
 Appendix, infra, No. 108.
 
 EQUITABLE EXECUTION. 319 
 
 the master may be varied on summons in chambers, Chap. I. 
 
 which, in case of difficulty, is referred not to a judge in ! 
 
 Court, but to a Divisional Court (k). 
 
 The order for appointment of the receiver operates as Operation of 
 an injunction against all those who have notice of it (/), 
 and is therefore different in its effect from any other kind 
 of execution. At the same time, an application for an in- 
 junction against persons already in contempt in respect of 
 disobedience to the order, will be granted, the injunction 
 being in assistance of the appointment (m) . To interfere 
 with the possession of a receiver is a contempt of Court, 
 whether the order appointing him has been wrongly or 
 rightly made (n) . Interference may consist in the mere 
 interception of rents and profits which the receiver is ap- 
 pointed to collect (o), or in a depreciatory circular of a 
 business whereof he has been appointed receiver and 
 manager (p). The appointment must be complete before 
 any contempt of Court can be committed (<?), a point 
 which is not of importance in relation to our subject, for the 
 reason that the receiver is appointed ex parte and at once. 
 
 The receiver can, and in proper cases ought, to bring Proceeding 
 before the Court, by motion, anyone who interferes with to^brought 
 him in the execution of his duty. He is under no necessity b 7 receiver. 
 
 (k) Walmsley v. Mundy, 13 Q. B. form of order when sheriff is in 
 
 D. 807. That is to say, themaster's contempt for levying Ji. fa. in spite 
 
 report is equivalent to a chief clerk's of the appointment of a receiver 
 
 certificate, and not final, as at com- which has been made, 
 
 monlaw. (o) Ames T. Trustees of Birken- 
 
 (l) This view of the order is head Docks, 20 Beav. 332, p. 353. 
 
 borne out by Crow v. Wood, 13 And see more in detail Kerr on 
 
 Beav. 271, where the test of the Receivers, p. 124 et seq. 
 
 alleged contempt was really whe- (p) Helmore v. Smith (2), 35 Ch. 
 
 ther the order of the Court had D. 449. This example is hardly 
 
 been obeyed, not whether its officer relevant in discussing equitable 
 
 had been insulted. execution, except to show the ex- 
 
 (m) As in Tink v. Rundle, 10 tent to which the doctrine of con- 
 
 Beav. 318. tempt is carried. 
 
 () Russell \. East Anglian Ey. (q) Defries v. Creed, 34 L. J. Ch. 
 
 Co., 3 Macn. & G-. 104, where see 607.
 
 320 
 
 Book III. 
 
 General 
 duties as to 
 accounts. 
 
 Receiver 
 agent of 
 creditor. 
 
 Process 
 against re- 
 ceiver as such. 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 in such cases to bring a separate action. If, however, there 
 is any necessity to take a step in the name of the owner of 
 the legal estate the receiver must apply to the Court for 
 leave. For instance, he cannot distrain upon a tenant 
 without leave, unless the tenant has already attorned to 
 him under the order. 
 
 The general duties of receivers when appointed do 
 not come within the limits of this work. They are subject 
 to the orders of the Court ; and it may be stated generally 
 that any act which they desire to perform, and which is 
 not directly authorized by an existing order of the Court, 
 is done at the receiver's risk and on his responsibility. He 
 should, therefore, for his own protection, obtain the neces- 
 sary orders. To some extent he becomes the agent of the 
 execution creditor (<?), though he is of course bound to 
 account to all parties. The method of his accounting, of 
 his remuneration, and finally of his discharge, is settled by 
 well-established rules of practice which we do not enter 
 into, but which are to be found in ordinary books of gene- 
 ral practice (>). 
 
 Where on a receiver's accounts a balance appears to be 
 due from him, the person entitled thereto, or to have the 
 same paid into Court, is not entitled to proceed against him 
 by writ of execution, for example, a fi. fa. ; the proper 
 process is to obtain an order against him in his capacity of 
 officer of the Court (s). But where an order that he do 
 pay into Court has already been made against a receiver 
 and disobeyed, a writ of sequestration may issue against 
 him under 0. XLII. r. 4, and 0. XLIII. r. 6, without 
 leave (}. 
 
 (q) See Chinnery v. Evans, 11 H. 
 of L. Ca. 115. 
 
 () Kerr on Receivers ; Dan. Ch. 
 Pr. ; Seton on Decrees. 
 
 (s) Whitehead v. Lynes, 34 Beav. 
 
 161 ; Kerr on Receivers, p. 179 
 et seq. ; Re Sell, Foster v. Bell, L. R. 
 9 Eq. 192. 
 
 (0 Sprunt v. fuffh, 7 Ch. D. 567 ; 
 Kerr, ubi supra.
 
 EQUITABLE EXECUTION. 321 
 
 SUB-SECT, (iii). Nature of Property in respect of which sects' (Ui). 
 Receivers are appointed. 
 
 As we have seen, the power of the Court is not confined Legal and 
 to appointing a receiver of equitable interests alone. The estates. & 
 receiver may, and apparently in a proper case always might, 
 be appointed to take possession of legal interests, and the 
 question is now always whether it would be just and con- 
 venient (11). 
 
 At the same time, and although it is not intended to do Kinds of pro- 
 more than indicate in this part of our subject the main 
 
 principles guiding the appointment and duties of receivers, ceiver ap- 
 we should be omitting a most important part of the law of 
 execution were we not to refer to the kind of property in 
 respect of which this method is particularly available. 
 Speaking generally, a receiver is appropriate to equitable 
 interests in property. Where there is available a legal 
 mode of execution which will accomplish the end sought, 
 e.g. a writ of fi.fa. or ckyit, that is the proper means of 
 execution, and in such cases it is not just or convenient for 
 another means to be adopted (x). For the most part a 
 legal method of realising a judgment is not available 
 against incumbered property of the debtor. 
 
 Receivers of the debtor's interest in property have been 
 appointed at the instance of judgment creditors or to 
 effectuate a judgment or order for payment of money in 
 the cases which we proceed to refer to in detail. 
 
 Equitable estates or interests in land, whether freehold Equitable 
 or leasehold, which cannot be extended or seized by the ia, n a. 
 ordinary legal methods, may be subjected to a receiver (y}. 
 
 (u) At any rate since Jud. Act. Slanger Leathes, W. N. 1882, 71 ; 
 
 Pease v. Fletcher, 1 Ch. D. 273 ; Re In re Coney, Coney v. Bennett, 29 
 
 Pope, 17 Q. B. D. 743. Ch. D. 993. 
 
 (x) The fact that sequestration (y) As to mortgaged estates, see 
 
 is an available remedy does not Smith v. C'owell, 6 Q. B. D. 75 ; 
 
 prevent the Court from granting a Salt v. Cooper, 16 Ch. D. 544 ; as to 
 
 receiver in lieu. Bryant v. Bull, equitable interests, Wells v. Kilpin, 
 
 10 Ch. D. 153 ; Stanger Leathes \. L. E. 18 Eq. 298. 
 
 E. Y
 
 322 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Land whereof 
 debtor is 
 trustee and 
 beneficially 
 interested. 
 
 Equity of re- 
 demption in 
 chattels. 
 
 Landlord's 
 
 It is now immaterial, there being good and sufficient 
 reason aliunde (for example, an equitable mortgage in 
 existence), whether the legal estate is in the execution 
 debtor, or in a mortgagee claiming under him (z) . There 
 are some equitable interests in land in respect of which 
 there is no doubt of the jurisdiction of the Court to 
 appoint a receiver, but the justice and convenience of so 
 doing is not always clear. For example, where the judg- 
 ment debtor has contracted to sell lands, of which he is 
 the legal owner, the creditor may either issue an elegit, or 
 apply for the appointment of a receiver; although a 
 demurrer to a bill praying relief on behalf of a judgment 
 creditor against purchase-money, payable in respect of 
 certain lands the debtor had sold, was upheld (). 
 
 It is submitted that all land, whether freehold or lease- 
 hold, which is in the hands of the judgment debtor, subject 
 to trusts or duties to be performed by him, but in which 
 he has a valuable interest, can be made available in 
 execution to the extent of his interest by means of a 
 receiver thereof (b). 
 
 A. receiver can be appointed in respect of goods and 
 chattels of the debtor, which are subject to a charge, or, in 
 other words, in respect of the equity of redemption in 
 goods and chattels, e. g., when they are subject to a bill of 
 sale. The receiver in such a case cannot, of course, enter 
 into possession where the bill of sale holder insists upon 
 doing so, nor can the latter be compelled to take the 
 amount due to him without a separate action for re- 
 demption. 
 
 Where a receiver is appointed over and in respect of 
 
 (z) He Pope, 17 Q. B. D. 743. 
 
 (a) Brown v. Perrott, 4Beav. 585. 
 See Robinsonv. Hedger, 13 Jur. 846 ; 
 14 Jur. 784. It is submitted that 
 it is not correct procedure to attach 
 the sum due from the purchaser to 
 the judgment debtor under gar- 
 
 nishee proceedings without at the 
 same time obtaining a receiver also. 
 (b) Such cases as Doe d. Hull v. 
 Greenhill, 4 B. & Aid. 684 ; and In 
 re Duke of Newcastle, L. R. 8 Eq. 
 700, have suggested the remark in 
 the text.
 
 EQUITABLE EXECUTION*. 323 
 
 goods, they are not in cmtodia kgis in the same manner as Chap. I. 
 when seized by a sheriff. A landlord's right of distress ' 
 
 is, therefore, untouched by the order, but he must obtain 1^* to dis " 
 the leave of the Court before enforcing that right (c). 
 
 Where chattels have been seized by the sheriff, and by Stock of a 
 reason of their constituting the stock-in-trade of a going 
 business their sale might work injury, a receiver will be 
 appointed, at the instance and cost of the claimant, pending 
 trial of an interpleader issue ; the Court will not force 
 the sheriff to sell, but will protect him in such a case (d). 
 
 It would appear that the Married Women's Property Married 
 Act, 1882, renders all a married woman's property, which property. 
 is thereunder her separate property, liable to be taken in 
 execution ; but if she has other separate property to which 
 she is entitled under a settlement, or otherwise not falling 
 within the Act, the proper means of execution is a 
 receiver (e). 
 
 Where the debtor has an interest in personalty under Interest in 
 a will, for example, a legacy, a receiver of it will be Snd^a -mil, 
 appointed. In this case, where necessary, in aid of the -^., a legacy. 
 execution, an injunction will be granted against the 
 executors parting with the money until the receiver has 
 been properly appointed (/). It makes no difference that 
 the estate out of which the money is to be paid is being 
 administered by the Court, the practice being the same 
 here as in the case of a sequestration (g] . The receiver 
 must, however, complete his title by obtaining a stop order 
 on the fund (h). An order for a receiver to receive the 
 
 (c) Me Button, Sutton v. Bees, 32 was until a week after the time 
 L. J. Ch. 437. limited for appearance, but an 
 
 (d) Howell v. Dawson, 13 Q. B. application for a receiver could 
 D. 67. The business was that of a follow. 
 
 cab proprietor. (g) Ante, p. 286. 
 
 (e) Bryant \. Bull, 10 Ch. I). (h) The mere fact that the stop 
 153 ; In re Peace $; Waller, 24 Ch. order has not been formally lodged 
 D. 405. will not affect the receiver's pri- 
 
 (/) Archer v. Archer, W. N. ority. Ee Galland, W. N. 1886, 
 1886, 66. The injunction here 96.
 
 324 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Sum payable 
 under order 
 of another 
 Court. 
 
 Equitable in- 
 terest under 
 settlement of 
 personalty. 
 
 Effect of ap- 
 pointment on 
 duties of 
 trustees of 
 settlement. 
 
 No receiver 
 where there is 
 nothing to 
 receive. 
 
 Effect of ap- 
 pointment 
 on prior in- 
 cumbrancers. 
 
 income of a reversionary interest in personalty has also 
 been made (i). 
 
 When the judgment debtor has, under the order of 
 another Court, a fund payable to him, a receiver of it will 
 be appointed, and an injunction against the execution 
 debtor receiving the amount granted (k). 
 
 The interest of a debtor under a settlement of person- 
 alty may be got at by means of a receiver, in fact, this 
 is the proper process, there being no debt recoverable at 
 law (/). 
 
 In those cases where there are trustees, on whom the 
 duty of distributing or paying over the fund devolves, the 
 effect of the appointment is that the receiver does not 
 dispossess them, but merely stands in the place of the 
 execution debtor to receive from them what he would, but 
 for the appointment, have received (in). Where it is 
 sought to obtain an order against the trustees of the 
 settlement, where, for example, they allege any reason 
 under the settlement itself why the fund should not be 
 charged, or where it is sought to pay off prior incum- 
 brancers, an action should be commenced to which the 
 trustees, the execution debtor, and incumbrancers, if any, 
 would be properly made parties (n). 
 
 It needs hardly to be suggested that no receiver will 
 be appointed where there is nothing to be receiver of ; for 
 example, it is submitted, to receive the amount to be 
 obtained for damages in a yet untried action. 
 
 In accordance with the general principle, which applies 
 wherever the property of the debtor is made available for 
 
 (i) Fuggle v. Bland, 11 Q. B. D. 
 711. 
 
 (k) Westhead v. Riley, 25 Ch. D. 
 413. The debtor was a solicitor 
 to "whom costs were ordered to be 
 paid by the Palatine Court. The 
 fund being in Court, in this case, 
 would not the more appropriate 
 remedy have been by charging 
 
 order ? 
 
 (I) Well v. Stenton, 11 Q. B. D. 
 518, 530. 
 
 (in) For an example, see Oliver 
 v. Lowther, 42 L. T. 47. 
 
 (n) See In re Peace and Waller, 
 24 Ch. D. 405; Arden v. Arden, 
 29 Ch. D. 702.
 
 EQUITABLE EXECUTION. 325 
 
 his debt, that only his interest therein can be touched, the Chap. I. 
 order for appointment of the receiver is always made _ ' _ 1_ 
 
 " without prejudice to the right of any prior incumbrancer, 
 and if any incumbrancer is in possession then without pre- 
 judice to such possession" (o). This does not in any way 
 encroach upon the principle that any interference with the 
 receiver is a contempt. For, if the prior incumbrancer is 
 not in possession at the date of the order, and the receiver 
 enters, the incumbrancer may go to the Court and insist 
 on an order for the receiver to stand aside. This same 
 course is open to him if the receiver attempts to oust him 
 when he is actually in possession ; and if the interference 
 by the receiver with any person rightfully in possession is 
 gross, no doubt the receiver will be punished by being 
 mulcted in costs. 
 
 The extent to which the receiver holds the property for How far re- 
 
 . v -I -i 
 
 the benefit of prior incumbrancers is dependent upon the 
 
 or 
 construction of the order appointing him, and upon the benefit of 
 
 knowledge he has of their claims (p) . The main principle brancer. 
 is that so long as funds are in his hands they are in 
 custodia ley is for whoever can make a title to them, and 
 can strictly only be paid away by the receiver under the 
 special authority of an order of the Court (q). 
 
 " The order appointing a receiver is for the benefit of Extent to 
 incumbrancers only so far as expressed to be for their 
 
 benefit, and only so far as they choose to avail themselves * or incum - 
 
 * , brancer s 
 
 of it. The Court would not deprive them of the advantage benefit. 
 of their legal estate ; they might, perhaps, be obliged to 
 come here to be examined pro interease suo ; but this Court 
 would not interfere against them." "I think that the 
 mortgagee of a term, if he chooses not to lay his hands on 
 the rents during the term, must be in the situation of a 
 mortgagee in fee who has suffered the rents to be applied 
 
 (o) See the Appendix, infra, p. Kerr on Receivers, 118, 119. 
 445. Form, No. 105. (q) Delany v. Mansfield, 1 Hof. 
 
 (p) See the subject discussed, 234.
 
 326 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 General effect 
 
 appointment 
 as to sale, &c. 
 
 Discharge of 
 receiver. 
 
 for purposes other than the satisfaction of his security" (r). 
 It follows, therefore, that a receiver is bound to account 
 only to such persons as can obtain an order against him. 
 
 The mere appointment of a receiver over the interest of 
 the debtor in lands is necessarily somewhat unsatisfactory. 
 It has been already pointed out that there appears to be 
 no power in the Court to realize the corpus or land itself 
 without separate proceedings, either in the form of an 
 action for foreclosure and redemption or of a petition for 
 sale of the land under sect. 4 of 27 & 28 Viet. c. 112 (s). 
 If the statutable power of sale with which the Courts have 
 been endowed were extended, so that once a receiver 
 appointed an order for sale of the land in execution might 
 be obtained on mere motion or summons, the method of 
 execution by the appointment of a receiver would afford 
 the simplest and most manageable remedy in all cases 
 where it was desired to realize the sum due out of the rents 
 and profits or of the sale of land in which the debtor had 
 an interest. 
 
 The appointment of a receiver constitutes a charge or 
 incumbrance on the land. As soon, therefore, as the debt 
 and costs have been paid application should be made to 
 the Court for an order of discharge of the receiver and 
 vacation of his recognizance (t). 
 
 SECT. 4. REGISTRATION OF JUDGMENTS AND METHODS OF 
 EXECUTION. 
 
 Questionable The subject of this chapter would be incomplete without 
 effect "f* 116 a re f erence to the law relating to registration of judg- 
 statutesasto ments. It is not at all clear from the statutable enact- 
 
 registration. 
 
 (r) Lord Eldoii in Gresley v. Ad- 
 derley, 1 Swanst. p. 579. 
 
 (s) Vide supra, pp. 300, 301, 307. 
 
 (t) As in Jenner-Fust v. Needham, 
 31 Ch. D. 500.
 
 EQUITABLE EXECUTION. 327 
 
 ments remaining unrepealed on the subject, or from the Chap. I. 
 decided cases thereunder, what is the effect, at the present e 
 time, of a registered judgment and process of execution, as 
 compared with a judgment and process of execution which 
 is not registered. It is fortunate, however, that a recent 
 decision has taken away the necessity of treating the 
 question of registration at any length. We submit that 
 the few following remarks will be found to contain for the 
 purposes of this work a sufficient practical treatment of the 
 question specially as we have already indicated some 
 occasions upon which process should be registered. 
 
 The general effect of an elegit both under the Statute of Effect of 
 Westminster and the statute 1 & 2 Yict. c. 110, has ??2 ViS* 
 already been fully discussed in Book L, Chapter IY. of c - 110 - 
 this work. We have seen that its peculiar effect in vesting 
 a conditional estate in the judgment creditor was due to 
 the construction placed upon the former of those two 
 enactments. 
 
 In sect. 2 of the present chapter we have attempted to Effect of 
 show in what cases at the present time sect. 13 of 1 & 2 ^ & r f yict ei 
 Yict. c. ] 10, gives a specific charge or lien over interests in c - no> 8 - 13. 
 land belonging to an execution debtor. That specific 
 charge or lien operates by no inherent force of a judg- 
 ment, but by virtue of the statute only. 
 
 By sect. 19 of 1 & 2 Yict. c. 110, it was provided that Sect. 19, i & 
 no judgment should by virtue of that Act (w) affect any as toVegis- ' 
 lands as to purchasers, mortgagees, or creditors, unless and tration of 
 until such judgment had been registered in the manner 
 pointed out in the section. 
 
 After the passing of this statute matters were in this Effect of 
 position, that, as to an elegit, if lands were actually orfiexecution 
 
 extended under the writ there was no necessity for regis- fc y ele s'^ 
 
 ' . after 1 & 2 
 
 tration at all. The debtor could not make a title or Viet. c. no. 
 
 () It is not necessary to do more which had been docketed before 
 
 than indicate the construction the passing of the Act. See Elphin- 
 
 placed upon these words by a re- stone on Searches, p. 15. 
 ference to their effect on judgments
 
 328 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Effect of 
 registration 
 upon charge 
 given by 
 sect. 13, 1 & 
 2 Viet. c. 110. 
 Legislation 
 as to the 
 registration 
 required. 
 
 23 & 24 Viet, 
 c. 38, s. 1. 
 
 23 & 24 Viet. 
 c. 38, s. 2. 
 
 Registration 
 of writ under 
 s. 3, 27 & 28 
 Viet. c. 112. 
 
 deliver the seisin or possession to a purchaser or mortgagee 
 for the reason of the particular estate vested in the tenant 
 by elegit. A judgment creditor of the debtor could not 
 extend the land under a second elegit for the reason that 
 there was no estate left for him to take (x). Of course it is 
 clear that by registration a judgment creditor obtained an 
 additional advantage, for he was safe, and could issue his 
 elegit at any time, or delay it for any length of time after 
 the date of the registered judgment, notwithstanding any 
 subsequent purchaser, mortgagee or creditor who might 
 claim to stand against him. 
 
 As regards the charge given by sect. 13, the law was not 
 the same, because the charge had no existence until regis- 
 tration of the judgment had been made (y). 
 
 As to the form and nature of the registration required, 
 various statutes were passed (z). Finally, by sect. 1 of 
 23 & 24 Yict. c. 38, it became necessary to register, not 
 only the judgment, but also the writ, suit, or other process 
 of execution. Further, a limitation was placed upon the 
 power which every judgment creditor before the enactment 
 had of issuing execution at any length of time after his 
 registered judgment, and no judgment nor any writ or 
 other process thereon was allowed to affect land unless put 
 in force within three months from the time when it was 
 registered (a) . The mode of registering the writ and 
 judgment was provided for by sect. 2. 
 
 By sect. 3 of 27 & 28 Yict. c. 112, every writ or other 
 process of execution by virtue whereof any land shall have 
 
 (x) Vide supra, p. 308. 
 
 (y) Although the judgment need 
 not have been registered twelve 
 months before proceeding. Derby- 
 shire, $c. Ry. Co. v. Bainbrigge, 15 
 Beav. 146. 
 
 (z) 2 & 3 Viet. c. 11, abolished 
 the old dockets and enacted regu- 
 lations as to the memorandum or 
 minute of judgment ; it also pro- 
 
 vided for re- registration every five 
 years. 3 & 4 Viet. c. 82, s. 2, pro- 
 tected purchasers, mortgagees, and 
 creditors taking with notice of an 
 unregistered judgment. 18 Viet. 
 c. 15, s. 4, extended this last- 
 mentioned enactment. 
 
 () This statute extended its pro- 
 tection to purchasers and mortga- 
 gees only, not to creditors.
 
 EQUITABLE EXECUTION. 329 
 
 been actually delivered in execution, shall be registered as Chap. I. 
 in the last -mentioned Act provided, but in the name of the ec ' 
 
 debtor against whom the writ or process is issued, and no 
 other or prior registration of the judgment is to be neces- 
 sary for any purpose. It is submitted that the particular 
 registration required under this section is a futile pro- 
 ceeding. The first section of the Act takes away any 
 effect which a judgment might have upon land until the 
 actual delivery thereof in execution (b). The registration 
 is not necessary now any more than it has ever been, in 
 cases where there is an actual entry on or delivery of the 
 lands in execution (c). 
 
 In those cases where the interest in land which is sought Sect. 3 does 
 to be made available under an execution is not capable by ^here no 
 
 its nature of being actually delivered, the third section delivery in 
 above quoted has no application, because it is only after 
 the land shall have been actually delivered in execution 
 that the section in terms applies at all. In cases, there- 
 fore, where sect. 13 of 1 & 2 Yict. c. 110, and the charge 
 thereby given, have now any effect, it is submitted that the 
 method of registration here enjoined is useless. If, how- 
 ever, that part of sect. 3 of 27 & 28 Yict. c. 112, which 
 abolishes the necessity for any other kind of registration 
 than that required by the preceding part should be con- 
 strued not to apply to proceedings on the charge given by 
 sect. 13, the method of registration provided by sect. 1 of 
 23 & 24 Yict. c. 38, would have to be resorted to. It is in 
 truth impossible to say, until the point has been decided, 
 what in such a case is the proper method of registration ; 
 but whatever it be, the following conclusions appear to be 
 justified : 
 
 A. Where land is actually delivered in execution, 
 whether by virtue (a) of a writ of elegit, and freehold, 
 copyhold, or leasehold may be so delivered ; or (b) of a 
 
 (b) See fuller consideration of (c) See judgment of Cotton, L.J., 
 
 the subject, supra, pp. 189, 307. Re Pope, 17 Q. B. D. 743.
 
 330 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. -writ of fi. fa., leaseholds only being seizable under this 
 writ ; or (c) of a receiver, all kinds and interests in land 
 being in just and convenient cases deliverable under this 
 method (cfy, no registration of the judgment or the process 
 of execution is necessary for any purpose. It will greatly 
 aid in the due comprehension of this matter if it be borne 
 in mind that in the case of completed executions no regis- 
 tration or docketing of the judgment has ever been 
 requisite. The execution is good as against every one, for 
 the reason that it conveys the property, or an interest or 
 estate therein, to the judgment creditor. 
 
 B. Where, on the other hand, the debtor's interest in 
 land cannot from its nature be actually delivered, and it is 
 yet covered by the terms of sect. 13 of 1 & 2 Yict. c. 110, 
 registration of some kind is necessary. Registration as a 
 Us pendens of the proceedings to obtain the benefit of the 
 charge, should, of course, always be made, and perhaps 
 this would be a complete and satisfactory protection. 
 
 (d) But where the land was in affected only if the Us pendens has 
 itself part of the subject-matter of been registered, 
 litigation, it would seem to be
 
 ( 331 ) 
 
 Chap. II. 
 
 CHAPTER II. 
 
 CHARGING ORDERS OVER STOCKS AND SHARES. 
 
 STOCKS and shares in public companies were not available Could not be 
 at law in execution, nor had the Court of Chancery any or m equity. 
 machinery by which they could be reached to satisfy a 
 judgment debt, though, as we have seen, they might 
 perhaps be seized and appropriated by sequestrators, until 
 the contemnor owning them had submitted or cleared his 
 contempt. 
 
 This description of property is for the most part the Nature of 
 creation of statute. Stocks and shares, though there are shares. 
 many distinctions between them (a), are for our purpose 
 of the same nature. It is true that stock in the public 
 funds has its special characteristics, just as the stock in 
 railway and other public companies (b), and that a share 
 in a company really signifies something which may be 
 entirely different, viz., a definite portion of its capital (c). 
 These matters do not, however, immediately concern us. 
 
 In order to keep this branch of our subject distinct from Use of term 
 the succeeding chapter, it should be observed that the term action 8 " m 
 " chose in action," which is in strictness applied to rights 
 of action at common law only, is frequently used to describe 
 the nature of stocks and shares, but this use of the term 
 is misleading, or, at the least, unsatisfactory (d). 
 
 (a) See Morrice v. Aylaner, L. R. (d) See judgments of Lindley, 
 7 H. L. 717. L. J., Colonial Bank v. WTiinney, 
 
 (b) Williams on Personal Pro- 30 Ch. D. p. 281 et seq., and Societe 
 perty, 13th ed. 253. Generate de Paris v. Tramways Union 
 
 (c) Lindley on Part. p. 661. Co., 14 Q. B. D. p. 451.
 
 332 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Shares to be 
 taken subject 
 to internal 
 regulations 
 of the com- 
 pany. 
 
 O. XLVI. 
 r. 1. 
 
 1 & 2 Viet. 
 c. 110, s. 14. 
 Stock or 
 funds in 
 public com- 
 panies sub- 
 jected to 
 charging 
 order. 
 
 Stocks or shares are subject to the regulations of the 
 undertaking in which they are held, whether such regula- 
 tions are purely statutable or the result of agreement 
 merely amongst the members. Any person obtaining a 
 share, therefore, in execution, must take it subject to the 
 constitutional regulations under which it has been issued. 
 
 The procedure under which stocks and shares may be 
 taken in execution is wholly statutable, and, being of 
 modern introduction, presents but few difficulties to the 
 practitioner. 
 
 By 0. XLVI. r. 1, " An order charging stock or shares 
 may be made by any divisional court (/) or by any judge, 
 and the proceedings for obtaining such order shall be such 
 as are directed and the effect shall be such as is provided 
 by the Acts 1 & 2 Viet. c. 110, ss. 14, 15, and 3 & 4 Yict. 
 c. 82, s. 1." 
 
 Sect. 14, above referred to, provides: " That if any person 
 against whom any judgment shall have been entered up in 
 any of Her Majesty's Superior Courts at Westminster shall 
 have any government stock, funds, or annuities, or any 
 stock or shares of or in any public company in England 
 (whether incorporated or not), standing in his name in his 
 own right, or in the name of any person in trust for him, 
 it shall be lawful for a judge of one of the superior Courts, 
 on the application of any judgment creditor, to order that 
 such stock, funds, annuities, or shares, or such of them, or 
 such part thereof as he shall think fit, shall stand charged 
 with the payment of the amount for which judgment shall 
 have been so recovered, and interest thereon, and such 
 order shall entitle the judgment creditor to all such remedies 
 as he would have been entitled to if such charge had been 
 made in his favour by the judgment debtor ; provided that 
 no proceedings shall be taken to have the benefit of such 
 
 (/) This was apparently inserted 
 to prevent any question like that 
 arising in Brown v. Bamford, 9 M. 
 & W. 42, where it was decided 
 
 that only the judge could make the 
 order, though an appeal lay to the 
 Court. See Morris v. Manesty, 1 
 Q. B. 674.
 
 CHARGING ORDERS OVER STOCKS AND SHARES. 333 
 
 charge until after the expiration of six calendar months Chap. II. 
 from the date of such order." 
 
 Bj sect. 1 of 3 & 4 Viet. c. 82, above mentioned, the 3 & 4 Viet. 
 provisions of sect. 14 were extended to the interest of any gj^'ii L 
 judgment debtor, whether in possession, remainder, or extended, 
 reversion, and whether vested or contingent, as well in 
 any such stock, funds, annuities, or shares as aforesaid, as 
 also in the dividends, interest, or annual produce of any 
 such stock, funds, annuities, or shares ; and whenever any 
 judgment debtor has any like estate or interest in any 
 stock, funds, annuities, or shares, standing in the name of 
 the Accountant-General of the Court of Chancery (g), it shall 
 be lawful for such judge to make any order as to such 
 stock, funds, annuities, or shares, or the interest, dividends, 
 or annual produce thereof, in the same way as if the same 
 had been standing in the name of a trustee of such judg- 
 ment debtor, provided that no such order of any judge 
 shall prevent the Governor and Company of the Bank of 
 England, or any public company, from permitting any 
 transfer of such stock, funds, annuities, or shares, or pay- 
 ment of the interest, dividends, or annual produce thereof, 
 in such manner as the Court of Chancery may direct, or 
 shall have any greater effect than if the debtor had charged 
 such stock, funds, annuities, or shares, or the interest, 
 dividends, or annual produce thereof, in favour of the 
 judgment creditor, with the amount of the sum to be men- 
 tioned in any such order. 
 
 The procedure to obtaining the order, and its effect 1 & 2 Viet. 
 when obtained, are provided for by sect. 15 of 1 & 2 Yict. procedure to 
 c. 110, above mentioned : "And in order to prevent any obtain 
 
 cliEirflmi^ 
 
 person against whom judgment shall have been obtained order, 
 from transferring, receiving, or disposing of any stock, 
 funds, annuities, or shares hereby authorized to be charged 
 for the benefit of the judgment creditor under an order of 
 a judge, be it further enacted, that every order of a judge 
 
 (ff) Now, by virtue of 35 & 36 47 Viet. c. 29, ss. 2, 10, the Pay- 
 Viet. c. 44, ss. 4, 6 ; and of 46 & master- General.
 
 334 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. charging any government stock, funds, or annuities, or 
 any stock or shares in any public company under this Act, 
 shall be made, in the first instance, ex parte, and without 
 any notice to the judgment debtor, and shall be an order to 
 show cause only, and such order, if any government stock, 
 funds, or annuities standing in the name of the judgment 
 debtor in his own right, or in the name of any person in 
 trust for him, is to be affected by such order, shall restrain 
 the Governor and Company of the Bank of England from 
 permitting a transfer of such stock in the meantime, and 
 until such order shall be made absolute or discharged ; and 
 if any stock or shares of or in any public company, standing 
 in the name of the judgment debtor in his own right, or in 
 the name of any person in trust for him, is or are to be 
 affected by any such order, shall in like manner restrain 
 such public company from permitting a transfer thereof ; and 
 that if, after notice of such order to the person or persons to 
 be restrained thereby, or in case of corporations to any 
 authorized agent of such corporation, and before the same 
 order shall be discharged or made absolute, such corporation 
 or person or persons shall permit any such transfer to be 
 made, then and in such case the corporation or person or 
 persons so permitting such transfer, shall be liable to the 
 judgment creditor for the value or amount of the property 
 so charged and so transferred, or such part thereof as may 
 be sufficient to satisfy his judgment, and that no disposition 
 of the judgment debtor in the meantime shall be valid or 
 effectual as against the judgment creditor; and further, 
 that unless the judgment debtor shall, within a time to be 
 mentioned in such order, show to a judge of one of the 
 said superior Courts sufficient cause to the contrary, the 
 said order shall, after proof of notice thereof to the judg- 
 ment debtor, his attorney or agent, be made absolute : 
 provided that any such judge shall, upon the application of 
 the judgment debtor, or any person interested, have full 
 power to discharge or vary such order, and to award such 
 costs upon such application as he may think fit."
 
 CHARGING ORDERS OVER STOCKS AND SHARES. 335 
 
 From the above enactments it clearly appears that a Chap. II. 
 charging order is available to charge stock or shares in p u bii c com- 
 
 any public company in England (whether incorporated or P an y , 
 not). This does not, of course, include a mere trading or not. 
 partnership, but any company where the attributes of 
 publicity exist, such as the return of the names and places 
 of abode of the members from time to time, and of the 
 officers appointed to sue and be sued on behalf of the 
 company (h), at any rate satisfies the statute. 
 
 We have already seen that, by 0. XLIL r. 24, every Who entitled 
 order of the Court may be enforced against the persons 
 bound thereby, in the same manner as a judgment to the 
 same effect. Any creditor, therefore, who is entitled to 
 payment of money under an order is in a position to apply 
 for the remedy given by these enactments. 
 
 The first step which the creditor takes is to obtain an Application 
 order nisi, the effect whereof is fully stated in sect. 15, anY > evi < den.ce 
 above-mentioned. The application for this order is made thereon. 
 on an affidavit, which sets forth the judgment or order 
 and other the title (if any) under which the applicant 
 claims (i), the description of the stock or shares sought to 
 be charged and the interest of the debtor therein, and, 
 when necessary, the source of the deponent's informa- 
 tion (&). 
 
 The order will only be made where the sum sought to Sum for 
 be charged is an ascertained sum, and where the judgment ^.^ e mus t 
 or order under which it is payable is for payment to or re- be . ascer - 
 covery by some person (/). A charging order, therefore, 
 cannot be made in respect of a sum which is to be ascer- 
 tained by the taking of accounts and payment of what is 
 
 (h) Maclntyre v. Connell, 1 Sim. stop orders, Wood v. Vincent, 4 
 
 N. S. 225, p. 239 ; 15 Jur. 529. Beav. 419 ; Lambert v. Hutchimon, 
 
 For other companies ruled to be 13 L. J. Ch. 336. 
 
 public companies, see Nicholls v. (k) Form in Chitty's Forms, 478; 
 
 Rosewarne, 6 C. B. N. S. 480 ; 5 Dan. Forms, p. 419. See Appen- 
 
 Jur. N. S. 1266; Graham v. Con- dix, infra, No. 111. 
 
 nell, 19 L. J. Exch. 361. (1) Including, of course, corpo- 
 
 (i) See as to analogous case of rate body.
 
 336 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 The order 
 nisi. 
 
 Intitulation 
 of order. 
 
 Varying order 
 nisi. 
 
 found due, nor in respect of costs yet to be taxed (;), 
 nor (the terms of the statute being that the judgment must 
 have been entered up against a person) where the order is 
 an order for payment into Court (). But a charging 
 order is good, although made before anything is actually 
 due, upon a judgment to pay a sum infuturo (o). 
 
 The application for an order nisi may be and usually is 
 made to a master (p) . It is, although ex parte, made by 
 summons (q). Where, however, the order is made in the 
 first instance by a judge, the order may be made in the 
 form that the execution debtor's interest be charged for a 
 week, and unless application be within that period made 
 to the Court, and order made to the contrary, it be charged 
 absolutely. The advantage of this mode of procedure is 
 that one order is alone necessary (r). 
 
 The order, whichever form it takes, should be intituled 
 in the matter of the Acts, and in the matter of certain 
 shares in the particular company which it is sought to 
 charge. There is no other cause or matter in which it need 
 be entitled (s). 
 
 A refusal to make the order, whether by the master or 
 the judge, is of course appealable. 
 
 A reasonable time should be limited in the order nisi to 
 enable the opposing party to show cause, which he must do 
 (if at all) on the day named in the order (t). It was said 
 formerly that where the order was in this respect incon- 
 venient the execution debtor might apply to the judge to 
 vary it (t), and that his refusal might be appealed from. 
 
 (m) Chadwick v. Holt, 8 De G. 
 M. & G. 584 ; Widgery v. Tepper, 
 6 Ch. D. 364, in effect overruling 
 Sums v. Irving, 3 Ch. D. 291. 
 
 (n) Ward v. Shakeshaft, 1 Dr. & 
 S. 269. 
 
 (o) Bagnattv. Carlton, 6 Ch. D. 
 130. See Shaw v. Hudson, 48 L. J. 
 Ch. 689. 
 
 (p) Ord. LIV. r. 12 (1). 
 
 (q) Dan. Ch. Pr. 939. See Ord. 
 LIV. r. 2. For form of summons 
 and order, see Appendix, infra, 
 Forms, Nos. 110, 112. 
 
 (r) See Baker v. Tynte, 2 El. & 
 El. 898. 
 
 (s) Lord Hastings v. Beavan, 31 
 L. J. Ch. 546; but see note to Form 
 No. 110, Appendix, infra. 
 
 (t) Robinson v. Bin-bridge, 9 C. B. 
 289.
 
 CHARGING ORDERS OVER STOCKS AND SHARES. 337 
 
 At the present time, however, it seems clear that the power Chap. II. 
 of adjournment which the Court can exercise upon the day 
 for showing cause, will meet all the practical exigencies of 
 the case, and there seems to be no object in multiplying 
 applications to the Court by issuing a summons to vary 
 the order nisi before the day on which cause is to be 
 shown (u). 
 
 The order must be served upon the person or persons, or Service of 
 upon the authorized agent of the corporation, to be re- 
 strained thereby. Personal service, although advisable, is 
 not essential (#). Where the fund charged is in Court the 
 order must be left at the Chancery Pay Office. 
 
 The effect of the order nisi in restraining the transfer of 
 the stock or shares is stated in sect. 15. In case of trans- 
 fer, notwithstanding the charging order, the public com- 
 pany is liable in an action for damages, to which it is a 
 good defence to prove that the debtor's interest was of no 
 value (y). 
 
 Upon cause being shown on the day named, either an Order 
 order will be made varying or discharging the order nisi, 
 or an order absolute will be granted. Cause must be shown 
 before the judge in Chambers or other the judge named 
 in the order nisi (z), charging orders absolute being ex- 
 cepted from the matters over which the masters have 
 jurisdiction (a). On the part of the creditor applying for 
 the order the only evidence required, in addition to the 
 affidavit on which the order nisi was obtained, is an affi- 
 davit of service of such order upon all parties. The public Appearance 
 
 company in which the stock or shares are held may have w here in- 
 terested. 
 
 (u) Notwithstanding note to (z) Since the Jud. Acts no ques- 
 
 Chitty's Forms, p. 482. See, tion of the jurisdiction of any 
 
 however, course of procedure in judge to make the order can arise. 
 
 Graham v. Connell, 19 L. J. Ex. See Miles v. Presland, 4 My. & Cr. 
 
 361. 431; Hulkesv. Day, 10 Sim. 41; 
 
 (x) Re Paragon and Spero Mining Lord Hastings v. Beavan, 10 W. R. 
 
 Co., 8 Jur. 11. 206. Form of order, Appendix, 
 
 (y) Gill v. Continental Gas Co., infra, No. 113. 
 
 L. E. 7 Ex. 332. (a) Ord. LIV. r. 12 (b). 
 
 E. Z
 
 338 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. an interest in opposing the charging order being made 
 absolute, in which case they, as being parties concerned, 
 should show cause. It is suggested, as an instance of 
 where they might be directly affected, that in the articles 
 of association of many joint- stock companies a clause is 
 inserted giving to the company a lien or first charge over 
 the shares of the members for sums due from them to the 
 company (b) . However, as a rule, the company is not in- 
 terested in the matter, and then no appearance on their 
 behalf should be made at the hearing of the order absolute, 
 for their costs will not be allowed unless by a special 
 order (c). 
 Appearance The execution debtor may, of course, appear and show 
 
 of execution - ., ., , ,.. . . 
 
 debtor. cause. He may produce evidence by affidavit, showing 
 
 what his interest in the stock or shares really is, for it is 
 that interest alone against which the order will be made 
 absolute. 
 What interest Sect. 14 empowers the -judge to charge such part of the 
 
 of the debtor J 
 
 may be stock or shares as he shall think nt. As to government 
 
 charged. stock, it seems impracticable to charge less than the whole 
 of a debtor's interest without the consent of the Bank of 
 England, who will undertake no responsibility in the 
 matter (d). 
 
 The order nisi and the order absolute, although in form 
 two, are in reality but one order. The charge, therefore, 
 which is given by the statute operates from the date of the 
 order nisi, so that where, by having entered a suggestion 
 on the record, the judgment creditor was entitled to have 
 execution against the executors, and an administration 
 order had been made against the estate (e), and also in the 
 case where a receiving order in bankruptcy had been made 
 
 (b) In re Royal Bank of Australia, gous case of bank claiming lien 
 
 25 L. J. Ch. 649 ; 2 Jur. N. S. under 39 & 40 Geo. III. c. 36, s. 2. 
 390. See reference to Bradford (c) Ord. LXV. r. 27, sub-r. 23. 
 
 Banking Co. v. Briggs, 12 App. Ca. (d] Stanley v. Bond, 8 Beav. 50. 
 
 29, p. 345, infra. See, also, analo- (e) Haly v. Barry, 3 Ch. 452.
 
 CHARGING ORDERS OVER STOCKS AND SHARES. 339 
 
 against the judgment debtor (/), in both cases after the Chap. n. 
 order nisi, but before the order absolute, the charge was 
 held to be good. An order nisi cannot be effectual when 
 obtained against a dead person (g). The reason given for 
 this decision is, that the Act contemplates cause being 
 shown by the judgment debtor himself. If sound, it seems 
 to follow from this that where the debtor dies after the 
 order nisi, but before the order absolute, the creditor must 
 drop all proceedings thereunder and obtain a new order 
 nisi against the personal representatives ; such a course 
 can only be taken after leave has been given to proceed 
 against them under O. XLIL r. 23 (g). 
 
 With regard to the kind of interest which can be Interest of 
 reached by a charging order, it may be stated generally w hi c h can 
 that whenever the execution debtor's interest is of such a ** charged, 
 nature that he could if he pleased charge it, this remedy 
 applies. The creditor can take no greater benefit from his 
 charging order than the debtor could himself honestly 
 give (h). The stock or shares which can be charged must 
 be stock or shares, and not an annuity granted by a com- 
 pany (/), and must be standing in his own name in his "In his own 
 own right, or in the name of some person in trust for him. 
 The fact that they are standing in his own name will not 
 suffice ; they must be in his own right also. For example, 
 they cannot be charged where the debtor is a trustee of 
 the shares standing in his name. Again, where he has Holder of 
 sold them, but they have not been transferred into the vendor, 
 name of the purchaser, the vendor is in the position of a 
 trustee for him, and the shares cannot be charged by the 
 vendor's judgment creditor (k). The case is the same 
 
 (f) Re Sutchinson, 16 Q. B. D. settled to her separate use without 
 515. power of anticipation. Stanley v. 
 
 (g) Finney v. Hinde, 4 Q. B. D. Stanley, 1 Ch. D. 589. 
 
 102. (i) Morris v. Manesty, 7 Q. B. 
 
 (A) Principle of WTiitworth v. 674. 
 
 Gauyain, 1 Phil. 728. Therefore (k) Gill v. Continental Union Gas 
 
 a charging order cannot be made Co., L. R. 7 Ex. 332. 
 over a married woman's property 
 
 z2
 
 340 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Debtor 
 executor. 
 
 Terminable 
 interest in 
 stock. 
 
 where the holder is merely the nominee of another 
 person (I) ; and, again, where the shares are standing in 
 the debtor's name as executor of a deceased person (m}. 
 Where the debtor is interested, not in the shares, but in 
 the proceeds of their sale only, the order will not be 
 made (n). But where the debtor has a direct interest, how- 
 ever remotely, contingent in the shares, that interest can 
 be charged (o). As to the nature of the interest which 
 the debtor must have " in his own right" (p), it may be 
 an interest jointly with others and where the shares are in 
 the names of trustees (q) . And where the interest of the 
 debtor in the stock terminated on his alienation thereof, it 
 was held that a charging order was sufficient to cause a 
 forfeiture of the debtor's interest (r) . But, notwithstanding 
 that the terms of the gift imposed forfeiture on alienation 
 by the debtor, it was held in one case that dividends 
 already accrued due could be reached, and that an order 
 nisi and an order absolute could be made against them (s) . 
 As there can be no doubt of the capacity of a person 
 owning stocks to mortgage his interest in them whether or 
 not he has mortgaged them before, so there is no doubt 
 that a charging order will affect the interest of the debtor 
 when it is merely an equity of redemption (t). It is here 
 
 (I) Re Blakely Ordnance Co., 46 
 L. J. Oh. 367. 
 
 (m) Taylor v. Turnbull, 4 H. & 
 N. 495. 
 
 (n) Dixon v. Wrench, L. R. 4 Ex. 
 154. See Baker v. Tynte, 2 El. & 
 El. 897; 6 Jur. N. S. 1192. 
 
 (o) Cragg v. Taylor, L. R. 2 Ex. 
 131. 
 
 (p) As to these words, Fuller v. 
 Earl, 1 Ex. 796, seems inconsistent 
 with Gill v. Continental Union Gas 
 Co., L. R. 7 Ex. 332; Be Blakely 
 Ordnance Co., Coates 1 case, 35 L. T. 
 617 ; 46 L. J. Ch. 367. 
 
 (q] Churchill v. Bank of England, 
 11 M. & W. 323; South Western 
 Loan Co. v. Robertson, 8 Q. B. D. 17. 
 
 (r) Montejiore v. Behrens, L. R. 
 1 Eq. 171 ; Ro/ey v. Sent, L. R. 
 3 Eq. 759, it being in every such 
 case merely a question of construc- 
 tion of the instrument under which 
 the particular interest arises. 
 
 (s) South Western Loan Co. v. 
 Robertson, 8 Q. B. D. 17. See, 
 where the interest of the execution 
 debtor did terminate, Roffey v. Bent, 
 L. R. 3 Eq. 759. 
 
 (f) As in In re Royal Bank of 
 Australia, 25 L. J. Ch. 649.
 
 CHARGING ORDERS OVER STOCKS AND SHARES. 341 
 
 that the importance of the general consideration above Chap. II. 
 referred to becomes manifest. A judgment creditor can priorities 
 never become entitled to rank before a mortgagee of prior bet^ 6631 
 date to the charging order, so that under no circumstances mortgagees 
 can an execution creditor obtain priority over prior 
 equitable incumbrancers (M). The effect, therefore, of a 
 charging order is not precisely the same, notwithstanding 
 the words of the statute, as if the debtor had made it in 
 the creditor's favour, for in that case the incumbrancers 
 would rank according to the order in which notice was 
 given to the trustees or holders of the stock or shares, 
 whereas the charge only affects the interest of the debtor 
 at the time it is made (x). 
 
 As regards execution creditors, between themselves they Priorities of 
 
 rank in order of the dates of their respective charging: ? r ! dltors 
 
 o o mter se. 
 
 orders. 
 
 Where any incumbrancer of shares is interested in 
 disputing the validity of a charging order, he may dispute 
 also the judgment on which it is founded. Where, there- 
 fore, a charging order was made upon a judgment, to 
 found which there was no cause of action, as in the case of 
 a contract with an infant, it was held invalid, notwith- 
 standing that the defendant was sui juris at the time the 
 judgment and order nisi were obtained (y). 
 
 Sect. 14 above quoted prohibits proceedings being taken Effect of 
 to have the benefit of the charge until the expiration of six orderfsix: 
 months from the date of the order, which is the date of the months' 
 order nisi. After that period he is entitled to all such 
 
 (u) Brearcliffv. Dorrington, 4 De Co., L. E. 3 C. P. p. 251 ; Mobinson 
 
 G. &Sm. 122 ; Scott v. Lord Hastings, \. Nesbitt, L. E. 3 C. P. 264. 
 
 4 K. & Joh. 633. Notwithstand- (x) Scott v. Lord Hastings, 4 K. 
 
 ing Watts v. Porter, 3 El. & Bl. & J. 633, where the reasons for the 
 
 743 ; Nicholls v. Eosewarne, 6 C. B. decision are most ably and con- 
 
 N. S. 480, which seem to be prac- cisely given. 
 
 tically overruled. See, in addition (y) In re Onsloufs Trusts, 20 Eq. 
 
 to authorities appearing in cases 677. 
 quoted, Pickering v. Ilfracombe By.
 
 342 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Protective 
 proceedings 
 within the 
 six months. 
 
 Enforcement 
 of the 
 charging 
 order. 
 
 remedies as he would have been entitled to if such charge 
 had been made in his favour by the judgment debtor. 
 
 This section does not contain any corresponding pro- 
 vision to sect. 13, which we have discussed in the last 
 chapter, that on the execution debtor's bankruptcy within 
 twelve months, the judgment should have no preference in 
 respect of the charge given by that section. During the 
 six months, the remedy of the execution creditor is not 
 confined to the claim for damages given him by the section. 
 He can by active means prevent, before the expiration of 
 the six months, the subject-matter of his charging-order 
 being interfered with, and can by stop-order, injunc- 
 tion, or notice (z), restrain dealing with the corpus and the 
 receipt of income therefrom (a). It hardly needs to be 
 pointed out that during the six months' interval the execu- 
 tion creditor cannot obtain as against the public company 
 any other security ; for instance, cannot require his name 
 to be registered in the books of the company as owner of 
 the shares. 
 
 Where the execution creditor has obtained his charging 
 order, and the six months' delay imposed upon his pro- 
 ceeding has expired, he is in a position to enforce his secu- 
 rity. In order to do this he must foreclose the debtor and 
 all incumbrancers ranking after him, and this renders an 
 action necessary (ft). He cannot establish his absolute 
 right to the fund in a summary manner : thus, where the 
 order has been obtained over a fund in Court, the amount 
 will not be paid out on a petition by the execution creditor 
 unless with the consent of the owner of the stock (c) , Nor 
 
 (z) Vide infra, p. 345. 
 
 (a) Sristed v. Wilkins, 3 Ha. 
 235 ; Watts v. Jefferyes, 3 Macn. & 
 G. 372 ; see note to Horsley v. Cox, 
 4 Ch. p. 94. 
 
 (b) Under 0. LV. r. 5a, perhaps 
 by originating summons, although 
 the phrase " legal or equitable 
 
 mortgage" contained in the rule 
 is not the best chosen to describe 
 the charge obtained by the charg- 
 ing order. 
 
 (c) Whitfield v. Prickett, 13 Sim. 
 259 ; Pearse v. Brook, W. N. 1870, 
 216.
 
 CHARGING ORDERS OVER STOCKS AND SHARES. 343 
 
 has the Court jurisdiction to order a sale unless foreclosure Chap. II. 
 proceedings are instituted (d). It is clear, therefore, that 
 for the purpose of enforcing the charging order, foreclosure 
 proceedings are essential. In such proceedings it should 
 be distinctly kept in view that the foundation of the 
 plaintiff's title is the charging order. The judgment does 
 not of itself create a charge on personal property (e), al- 
 though, as we have seen, persons interested have the right 
 to go behind the charging order, and call in question the 
 judgment on which it is founded (/). Since the charging 
 order can give only such a charge as could be honestly 
 given by the debtor himself, it follows that the creditor, 
 the debtor, and all other incumbrancers, including, where 
 necessary, the public company in which the stock or shares 
 are held, must be made parties to the foreclosure proceed- 
 ings 0). 
 
 Where, as in the simplest case, the stock or shares are Parties to 
 standing in the debtor's own name and in his own right, foreclosure 
 he is the only necessary defendant. The case in which 
 the company must be brought in will be considered imme- 
 diately. 
 
 Where the stock or shares charged are standing in the Interest of 
 name of a trustee or trustees for the debtor, such trustee debtor Tn 1 
 or trustees must be made parties to the foreclosure action. 8tock subject 
 The position of the trustees in such cases should be clearly 
 apprehended. The charging order not being made against 
 them does not affect their rights as owner of the stock or 
 shares to the receipt of dividends and the like ; the divi- 
 dends must, notwithstanding the charging order, be paid 
 to them (h). When and so soon, therefore, as a charging 
 order is obtained over the interest of the cestui que trust 
 
 (d) Leggott v. Western, 12 Q. B. (g) See generally, Macmtyre v. 
 D. 287. Connell, 1 Sim. N. S. 252. 
 
 (e) Vide Montefiore \. Sehrens, (h) Fowler v. Churchill, 11 M. & 
 L. E. 1 Eq. 171. W. 57; Churchill v. Sank of Eng- 
 
 (f ) Vide supra, p. 341 ; Ee Ons- land, 11 M. & W. 323 ; Bristed v. 
 low's Trusts, 20 Eq. 677. Wilkins, 3 Ha. 235.
 
 344 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 When the 
 company is 
 a necessary 
 party. 
 
 in the stock or shares, notice thereof should at once be 
 given to the trustees, who, although, perhaps, not expressly 
 included within the terms of sect. 15 ahove mentioned, are 
 certainly bound by the order, and cannot, without a breach 
 of trust, pay over the dividends to the execution debtor, 
 but must retain them in their hands to await the result of 
 the foreclosure proceedings. If any question arises as to 
 whether the trustees claim to have a lien over the stock or 
 shares, either under the provisions of the trusts under 
 which they are held, or for indemnification for costs, such 
 claim can be adjudicated upon in the action; and the charg- 
 ing order will be no hindrance to the bank or company 
 transferring in manner ordered by the Court (i) . In the 
 same way, any questions of priority, or accounting, or the 
 like, which arise as between the creditor as assignee or 
 chargee of the debtor's interest, and the trustees, can be 
 dealt with in the action for foreclosure ; such questions 
 have nothing to do with the company. It may be men- 
 tioned that where no foreclosure action is pending, the 
 trustees may, if they choose, take proceedings under the 
 Trustee Belief Act (k). 
 
 The costs of the trustees will, of course, be a first charge 
 upon the interest of the debtor. 
 
 There is no statutable enactment to prevent the company 
 being also made parties to the f orelosure action ( I) . There 
 is, however, as a rule, no advantage in joining them, unless 
 discovery is required from them. Where they are unneces- 
 sarily made parties, the action against them will be dis- 
 missed with costs (ni). It has been already pointed out 
 that the charging order operates on the stock or shares 
 subject to the statutable or other regulations of the com- 
 pany affecting them. It is under these circumstances that 
 
 (*) Smith v. Toude, 2 F. & F. 
 376, and proviso at the end of 
 3 & 4 Viet. c. 82, s. 1, supra. 
 
 (k) As in He Onslow's Trusts, 20 
 Eq. 677. 
 
 (I) Temple v. Sank of England, 
 6 Ves. 769. 
 
 (m) Edridge v. Edridge, 3 Mad. 
 386 ; Perkins v. Bradley, 1 Ha. 
 p. 232 ; Seton, 284.
 
 CHARGING ORDERS OVER STOCKS AND SHARES. 345 
 
 questions frequently arise which render it necessary for the Chap. II. 
 company to be made parties to the foreclosure action. It 
 would be beyond the scope of this work to do more than 
 indicate the nature of the questions which come up for 
 decision in these cases. Recent cases afford sufficient 
 illustration of their difficulty and complexity. For ex- 
 ample, the decision of the House of Lords, in Bradford 
 Banking Co. v. Briygs (M), may be instanced. It was there 
 decided that one of the articles of association of a limited 
 company, providing for a first and paramount lien over the 
 shares of the members for debts due from them to the 
 company, was subject to the ordinary rules of equity with 
 reference to mortgages, and that, therefore, a person claim- 
 ing under a charging order ranked as to that claim before 
 the company, who endeavoured to enforce their lien for 
 debts incurred to them subsequent to the charging order by 
 the debtor, the registered owner of the shares. 
 
 An additional security is given to the execution creditor, Practice of 
 where the stock or fund is in Court, by the practice of 
 
 granting a stop order. There is no doubt that, before the pver funds 
 Judicature Acts, a charging order made by a common law u 
 judge was necessary before a creditor could come into 
 chancery and ask for a stop order, though it was then made 
 as of course (o). Since the Judicature Acts, the increased 
 power of the judges to grant injunctions (p), no doubt, 
 gives them jurisdiction to make the stop order at any time, 
 and therefore even before any charging order has been 
 made (<?). The stop order is, in form, merely an injunc- 
 tion (r). It does not, of course, initiate proceedings for 
 deciding the rights of the persons interested ; it merely 
 protects the fund (s). 
 
 This protection should be obtained wherever the fund Where fund 
 
 in Court 
 
 () 12 Ap. Ca. 29. 630 ; Shaw v. Hudson, 48 L. J. Ch. 
 
 (o) Whitfield v. Prickett, 13 Sim. 689. 
 
 259. (r) Form in Appendix, infra, 
 
 (p) Jud. Act, 1873, s. 25, No. 115. 
 
 sub-s. 8. (*) Lucas v. Peacock, 9 Beav. 177. 
 
 (q) Hopewell v. Barnes, 1 Ch. D.
 
 346 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 stop order 
 necessary. 
 
 Dividends or 
 interest or 
 fund in 
 Court. 
 
 charged is in Court. The effect of the charging order is 
 the same as if it had been given by the debtor, and the 
 stop order operates like notice to the trustees of a fund (t), 
 and determines the priorities of the persons claiming to be 
 entitled. If the creditor neglects, therefore, to get a stop 
 order, some other incumbrancer of the fund may obtain a 
 charge thereover without notice of the charging order, and 
 by obtaining a stop order, first in point of date, may 
 acquire priority (). Such an incumbrancer can only do 
 this, of course, if he takes without notice of the charging 
 order. In all such cases, therefore, the execution creditor 
 should make an application for a stop order at the same 
 time as for the order nisi(x), one application being sufficient. 
 If the creditor has obtained a charging order over stock or 
 funds which are not in Court, but which have, nevertheless, 
 been ordered, in a matter with respect to them, to be sold 
 and the proceeds paid to the execution debtor, the creditor 
 must bring a separate action to get the benefit of his 
 charging order ; he cannot apply in the matter to which 
 he is not a party (.?/). But where the fund is actually in 
 Court, although it may be subject to an order in the par- 
 ticular action or matter relating to it, the creditor's appli- 
 cation for a stop order is properly made in that proceeding 
 without the necessity of a separate foreclosure action (z) . 
 
 Where the fund, or the interest and dividends thereon, are 
 in Court, they may be charged so long as they have not 
 been actually paid out. This is by virtue of 3 & 4 Yict. 
 c. 82, s. 1, which provides for the charging of dividends, 
 interest, or annual produce of the stock or shares (a). 
 Even when the cheque has been prepared by the Paymaster- 
 
 (t) Macleod v. Buchanan, 33 Beav. 
 234. The stop order is obtained on 
 summons in Chambers. Wrench v. 
 Wynne, 28 L. J. Ch. 235 ; Walsh v. 
 Wason, 22 W. R. 676. 
 
 (u) Warburton v. Hill, Kay, 470. 
 
 (x) Dan. Ch. Pr. 939. 
 
 (y) Newton v. Askew, 11 Beav. 
 446. 
 
 (z) Reece v. Taylor, 5 De G. & S. 
 480. 
 
 (a) Similar enactment as to Ire- 
 land (16 & 17 Viet. c. 113). See 
 Salaman v. Donovan, 10 Ir. C. L. 
 R. App. xiii.
 
 CHARGING ORDERS OVER STOCKS AND SHARES. 347 
 
 General it can be reached by a stop order if it has not Chap. II. 
 
 actually been paid over (6) , and this notwithstanding that " 
 
 the Chancery Pay Office account, out of which the cheque 
 
 will be paid, is a fluctuating balance at the bank merely (c). 
 
 But if it lies in the hands of the Paymaster-General after 
 
 it has in fact become the property of the execution debtor, 
 
 the right course is for the sheriff to apply for liberty to 
 
 seize it under a fi. fa. as extended by 1 & 2 Yict. c. 110, 
 
 s. 12 (d). 
 
 Jurisdiction is given to the Courts by two statutes to Power to 
 restrain the Bank of England, or any other public com- transfer 
 pany, from permitting the transfer of the stock or shares, where public 
 the subject-matter of the action, although the Bank of ITp^rty^ 11 
 England, or such public company, is not a party to the 
 action (e). The security of the stock and shares, pending 
 the action, can in this manner be assured. 
 
 Before incurring the expense of obtaining an injunction Notice in lieu 
 restraining the Bank of England, or other public company, 
 from transferring the stock or shares, or paying over divi- 
 dends, the execution creditor could formerly have issued a 
 writ of distringas (/). This writ is now done away 
 with (#), and replaced under the rules by a formal notice. 
 The effect of this notice is temporary merely, and prevents 
 any transfer of the stock or shares without notice to the 
 person issuing it (h). Again, where the stock which has 
 been charged is in Court, a stop order can be obtained, in 
 the way we have pointed out, restraining any dealing with 
 the interest of the debtor therein. 
 
 These remedies are open to those who claim to be 
 interested in stock or shares, and are therefore available to 
 
 (b) Courtoy v. Vincent, 15 Beav. (e) 39 & 40 Geo. III. c. 36 ; 5 
 486 ; Robinson v. Wood, 5 Beav. Viet. c. 5 ; Seton, p. 284. 
 
 388. (/) The effect of this writ and 
 
 (c) Witham v. Lynch, 1 Ex. 391 ; practice is fully treated of in Dan. 
 17 L. J. Ex. 13. Ch. Pr. 5th ed. 1540 et seq. 
 
 (d) Watts T. Jefferyes, 3 Macn. & (g) Ord. XLVI. r. 2. 
 
 G-. 422. (h) For practice, see Re Blaksleifs 
 
 Trusts, 23 Ch. D. 549.
 
 348 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. an execution creditor who has obtained his charge just as 
 to any other mortgagee. The practice is fully set forth in 
 ordinary works on the subject (h). 
 
 Sale in In the foreclosure proceedings the same remedy by 
 
 order for sale can be obtained, as in the case of foreclosure 
 of land(z'). Sect. 25 of the Conveyancing Act, 1881, 
 applies to stock and shares just as to interests in land (7c) ; 
 and before the Act an order for sale could not be made in 
 inmtum. A sale is frequently the best course in the interests 
 of all parties, and there being no estates in personalty, the 
 fund can be disposed of, and a new fund created for such 
 persons as are interested in remainder (/). 
 
 (K) Dan. Ch. Pr. 6th ed. 1629 (k) Conveyancing Act, 1881 (44 
 
 et seq. ; Snow & Win. Ann. Pr. ; & 45 Viet. c. 41), s. 2. 
 Ord. XL VI. (1) See form of order in Bristed 
 
 (i) Supra, p. 301. v. Wilkins, 3 Ha. 235, and in 
 
 Appendix, infra, Form No. 114.
 
 ( 349 ) 
 
 Chap. III. 
 
 CHAPTEE III. 
 
 ATTACHMENT OF DEBTS. 
 
 IT is intended in this chapter to discuss the remedy of 
 a creditor entitled to issue execution against the debts 
 owing to the debtor. 
 
 In the preceding chapters of this work we have already Methods 
 
 . . available for 
 
 treated of various methods of execution under which attaching 
 
 money owing, or becoming due from others, to the person mone y s - 
 
 against whom a judgment or order has been obtained, may 
 
 be got in and applied in satisfaction of it. Sequestrators Sequestration 
 
 appointed by a bishop under the authority of a writ of 
 
 fi. fa., or seq. de bon. eccles., can take into their hands 
 
 and apply towards payment of the sum due, sums of 
 
 money becoming due, as rents and profits, to an incumbent 
 
 from his living (m}. Sequestrators appointed to sequester Sequestration 
 
 property, to answer for a contemnor's disobedience, may 
 
 collect rents and profits of his property, and, perhaps, 
 
 recover, by a summary process, money owing to him 
 
 besides such rents and profits (n). 
 
 Under a charging order, a creditor may recover the Charging 
 dividends accrued and accruing due upon shares in public 
 companies belonging to the debtor, as well as charge the 
 shares themselves with the payment of the sum due to 
 him (o). Finally, in all cases where it is just and con- Receiver, 
 venient, a receiver may be appointed at the instance of 
 the creditor. None of these remedies are, however, 
 applicable to the simple case of a creditor desiring to 
 
 (m) Book I. Chap. VII. supra. (o) Book III. Chap. II. supra, 
 
 (n) Book II. Chap. IV. s. 8.
 
 350 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. appropriate, for satisfaction of his debts, money which is 
 owing to his debtor. 
 
 SECT. 1. PROCEDURE RELATING TO THE ORDER FOR 
 ATTACHMENT OF DEBTS. 
 
 Ord. XLY. regulates the present practice relating to 
 attachment of debts (p). 
 
 G-arnishee By r. 1 of that Order, " The Court or a judge may, 
 
 upon the ex parte application of any person who has 
 obtained a judgment or order for the recovery or payment 
 of money, either before or after any oral examination of 
 the debtor liable under such judgment or order, and upon 
 affidavit by himself or his solicitor, stating that judgment 
 has been recovered, or the order made, and that it is still 
 unsatisfied, and to what amount, and that any other 
 person is indebted to such debtor, and is within the 
 jurisdiction (<?), order that all debts owing or accruing 
 from such third person (hereinafter called the garnishee) 
 to such debtor, shall be attached to answer the judgment 
 or order; and, by the same or any subsequent order, it 
 may be ordered that the garnishee shall appear before the 
 Court or a judge, or an officer of the Court, as such Court 
 or judge shall appoint, to show cause why he should not 
 pay to the person who has obtained such judgment or 
 
 (p) The remedy given to execu- and not in Chancery. See sect. 99 
 tion creditors to attach or render of the Act ; and Horsley v. Cox, 
 available debts due to their debtors L. R. 4 Ch. 92. The Act is now 
 has a very short history, and was repealed, and the whole law rests 
 first introduced by the C. L. P. upon the rules and orders. 46 & 
 Act, 1854, sects. 6067 (inclusive) 47 Viet. c. 49. 
 of which regulated the practice (q) In Ireland, in a case where 
 until the passing of the Judicature the head office of an insurance corn- 
 Act, when their substance was in- pany was in London, it was held 
 corporated in the Rules of Court. that no order could be made against 
 The rights given by the C. L. P. it. Martyn v. Kelly, Ir. R. 5 C. L. 
 Act, 1854, were rights enforceable 404. 
 in the common law Courts only,
 
 ATTACHMENT OF DEBTS. 
 
 351 
 
 order the debt due from him to such debtor, or so much Chap. III. 
 thereof as may be sufficient to satisfy the judgment or order." 
 
 Any person who has obtained (r) a judgment or order Person 
 for recovery of money is in a position, subject, it is 
 submitted, to the provisions of 0. XLII. rr. 2 and 9, 
 referred to at length, supra (s), to proceed to the remedy 
 given by this rule (). The judgment or order of this rule 
 does not, of course, include an order for payment into 
 Court, or for payment in any other manner than to a 
 person (u). 
 
 The extension of the remedy of attachment of debts, to Judgment or 
 cases where the creditor is entitled under an order, is new : 
 the remedy was, before the rules of 1883, confined to 
 creditors on judgments (#). 
 
 The application is usually preceded by the examination Prior exami- 
 
 (r) The assignee of a judgment 
 debt is included in these words, the 
 rules being framed to carry out the 
 provisions of sect. 25, sub-sect. 6 of 
 the Judicature Act. Goodman v. 
 Robinson, 18 Q. B. D. 332. See 
 also as to meaning to be given to 
 the words, Re Frankland, L. R. 8 
 Q. B. 18. In the case of bank- 
 ruptcy the original judgment cre- 
 ditor is the only person who has a 
 right to serve an effective notice, 
 the Bankruptcy Act contemplating 
 strictly the person who has ac- 
 tually obtained judgment. Exparte 
 Blanchett, 17 Q. B. D. 303. An 
 executor of the judgment creditor 
 is entitled to apply for an order 
 after having obtained the usual 
 order for change of parties. Bay- 
 nard v. Simmons, 5 El. & Bl. 59. 
 
 (*) Book I. Chap. I. p. 16, supra. 
 
 (f) Unless he is not entitled to 
 issue execution, as, for example, if 
 execution is stayed, or if he is one 
 of many bondholders who are to be 
 paid pari passu. Kennett v. West- 
 
 minster Improvement Commissioners, 
 11 Exch. 349. 
 
 (u) Including a corporation. 
 Ord. LXXI. r. 1. See, as to com- 
 pany in liquidation, note (/), infra, 
 p. 359. 
 
 (x) The decisions relating to this 
 question before the Rules of 1883 
 were Hartley v. Shemwell, 1 B. & S. 
 1 ; Me Price, L. R. 4 C. P. 155 ; Re 
 Frankland, L. R. 8 Q. B. 18 ; Best v. 
 Pembroke, L. R. 8 Q. B. 363 ; Cremetti 
 v. Crom, 4: Q. B. D. 225 ; Commis- 
 sioners of Donations v. Archbold, 14 
 Ir. C. L. R. 67. Re Price, ubi 
 supra, was a decision upon an order 
 obtained by the liquidator of a com- 
 pany for payment of calls. It does 
 not appear what order this was ; 
 but even at the present time the 
 order for payment of calls is for 
 payment into a bank, and execu- 
 tion cannot issue until payment to 
 the liquidator himself is ordered. 
 See sect. 103, Companies Act, 1862 ; 
 Gen. Ord. 1862, r. 38.
 
 352 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 nation of 
 debtor. 
 
 To whom 
 
 application 
 
 made. 
 
 The 
 garnishee. 
 
 The two parts 
 of the order. 
 
 of the debtor under 0. XLTI. r. 32, the practice on which 
 we have already discussed ; but such an examination is not 
 essential. 
 
 Whether it has been made or not, the application must 
 be founded upon an affidavit, in accordance with the terms 
 of the rule. A form of affidavit will be found in the 
 Appendix (y] . 
 
 The application is made in the Queen's Bench Division 
 to a master, and in the Chancery Division to the judge in 
 Court. 
 
 It will be observed from the terms of the rule that the 
 principal order obtained attaches all debts owing or accru- 
 ing to the garnishee. The garnishee, though that descrip- 
 tion includes a corporation, cannot be a firm, i.e., there is 
 no provision for a garnishee order being made against a 
 firm : the members of it are liable as garnishees in their 
 proper names only (s). 
 
 We shall shortly discuss the effect of this order on 
 points of priority and the like, and also the kind of debts 
 owing or accruing which are covered by it. The usual 
 form of order will be found in the Appendix (a) . 
 
 The usual order consists of two parts, that which pur- 
 ports to attach the debt or debts, and that which summons 
 the garnishee to show cause why an order should not be 
 made against him for payment. It is submitted that 
 where the debt sought to be attached is payable in futuro, 
 the latter part of the order should not be made simul- 
 taneously with the first, for the reason that, on the gar- 
 nishee attending, no order for payment would be made 
 against him (b). At the same time, it must be pointed 
 out that where a sum is payable by the garnishee in instal- 
 ments, and one instalment is due, an order may be made 
 
 (y) Vide infra, Appendix, Form 
 No. 116, p. 452, and note. 
 
 (z) Walker v. Booke, 6 Q. B. D. 
 631. 
 
 (a) Vide infra, Appendix, Form 
 
 No. 117, p. 453. 
 
 (b) See terms of order for pay- 
 ment, Appendix, infra, Form No. 
 118, p. 453, which only provides 
 for payment forthwith.
 
 ATTACHMENT OF DEBTS. 353 
 
 for payment of the other instalments as they become due, Chap. in. 
 and successive executions may regularly issue without ec ' 
 further order (c). 
 
 Where the debt is actually due or owing by the garni- 
 shee, one order is usually made, including both the attach- 
 ment and the summons, to show cause. Service of the 
 order is provided for by rule 2 of the same 0. XLY. By o. LXV. r. 2. 
 that rule, " Service of an order that debts due or accruing order C and ^ 
 to a debtor liable under a judgment or order, shall be at- effect, 
 tached, or notice thereof to the garnishee, in such manner 
 as the Court or judge shall direct, shall bind such debts in 
 his hands" (d). 
 
 It would appear from this rule that service of the order The service 
 must be personal, unless otherwise directed. It is more re i uired - 
 convenient, therefore, in many cases to take, on the ex parte 
 application, special directions as to service. For example, 
 where the garnishee or garnishees are trading under a 
 firm name, although the order cannot be made in that 
 name (<?), it is submitted that a direction may be obtained 
 for the order to be served in the same manner (under 
 0. IX. rr. 6, 7) as if it were a writ of summons issued 
 against a firm. 
 
 By 0. XLY. r. 3, " If the garnishee does not forth- 0. XLV. r. 3. 
 with pay into Court the amount due from him to the OTder 
 debtor, liable under a judgment or order, or an amount garnishee. 
 equal to the judgment or order, and does not dispute 
 the debt due or claimed to be due from him to such debtor, 
 or if he does not appear upon summons, then the Court or 
 judge may order execution to issue, and it may issue ac- 
 cordingly, without any previous writ or process, to levy the 
 amount due from such garnishee, or so much thereof as 
 may be sufficient to satisfy the judgment or order" (/). 
 
 (c) Tapp v. Jones, L. R. 10 Q. B. bind the debts in his hands" is dis- 
 691. As to the distinction between cussed infra, sect. 3. 
 
 the two parts of the order, it may (e) Walker v. Eooke, 6 Q. B. D. 
 
 be well to refer to Sparks \. Younge, 631. 
 
 8 IT. C. L. R. 251. (/) This rule reproduces sect. 63, 
 
 (d) The effect of the words " shall C. L. P. Act, 1854. 
 
 E, A A
 
 354 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Trial of 
 question of 
 garnishee's 
 liability. 
 
 Form of the 
 order. 
 
 Question as 
 to liability. 
 
 Discretion in 
 Court or 
 judge. 
 
 By 0. XLV. r. 4, " If the garnishee disputes his lia- 
 bility, the Court or judge, instead of making an order that 
 execution shall issue, may order that any issue or question 
 necessary for determining his liability be tried or determined 
 in any manner in which any issue or question in an action 
 may be tried or determined " (g). 
 
 These two rules regulate the procedure after service of 
 the order upon the garnishee summoning him to show 
 cause. The form of the order against him, given in the 
 Appendix to the Rules of Court (/*), is in the form: "It 
 is ordered that the garnishee do forthwith pay," and 
 then goes on to direct issue of execution on default. It is 
 a mere technical matter, but the part of the order which we 
 have quoted is not expressly authorized by the rules (*'). 
 It has, however, been decided that such an order may be 
 made, even for payment of sums to become due in futuro (/) . 
 
 The garnishee may dispute that the alleged debt from 
 him is due (k] . If he does so the question cannot be 
 decided by the master or judge before whom the order to 
 show cause is returnable, but must be determined in the 
 manner provided for by rule 4 (I). 
 
 By this rule there is, however, no doubt a discretion 
 given to the Court or judge to refuse to direct the question 
 to be tried. The grounds for disputing the debt must be 
 substantial, or show that there is a question to be tried, 
 
 (ff) The procedure provided, un- 
 der sect. 64, C. L. P. Act, 1854, 
 was, that the judgment creditor 
 might sue the garnishee in an ac- 
 tion in the nature of a sci, fa. 
 
 (h] Appendix K, No. 40. Vide 
 infra, Appendix, Form No. 118. 
 
 .(i) It is suggested that, per- 
 haps, this is the reason why the 
 late M. R. refused, as is said, to 
 make an order for payment in the 
 absence of the judgment debtor. 
 See Dan. Forms, p. 422. 
 
 (/) Tapp v. Jones, L. E. 10 Q. B. 
 
 591. The order even when made 
 absolute is not a final judgment 
 within sect. 4, sub-sect. 1 (g), of 
 the Bankruptcy Act, 1883. Ex 
 parle Chinery, 12 Q. B. D. 342. 
 
 (k) Which expression includes, 
 of course, the case of debitum in 
 prcesenti solvendum in futuro, as well 
 as a denial altogether of indebted- 
 ness. 
 
 (I) For forms of order for trial 
 of question by issue and special 
 case, vide infra, Appendix, Forms 
 Nos. 119, 120, p. 454.
 
 ATTACHMENT OF DEBTS. 355 
 
 otherwise the order for execution will be made (m). The Chap. III. 
 
 RAP 1 
 
 garnishee should therefore show by affidavit the grounds ' ' 
 
 on which he relies for disputing the debt. The issue or 
 question for determination is, whether at the date of the 
 order of attachment there was a sum due from the gar- 
 nishee to the debtor (). And therefore the garnishee is 
 in the position of a defendant in an action, to the extent 
 that he can, on appearing, force the creditor to take pro- 
 ceedings to try the question or to have the order of attach- 
 ment discharged (0) . 
 
 If the garnishee does not dispute the debt being due he Payment into 
 should pay the same into Court on or before the return 
 day of the order to show cause, otherwise execution may 
 issue against him forthwith. He may be ordered, under 
 0. XLII. r. 32, to be orally examined as to the debts 
 due to him, and, apparently, garnishee proceedings taken 
 against him (p). 
 
 SECT. 2. WHAT CAN BE ATTACHED UNDER THE ORDER. 
 
 . It is proposed to consider the subject of this section in 
 two parts : 
 
 1. Ordinary debts owing or accruing; 
 
 2. Execution against pensions and other periodical pay- 
 ments. 
 
 (m) Newman v. Rook, 4 C. B. cution or for trial of the question. 
 
 N. S. 434 ; Wise v. Birkenshaw, 29 See Richardson v. Greaves, 10 "W. R. 
 
 L. J. Ex. 240. "The mere as- 45. For an example of a case 
 
 sertion by the garnishee that he where question ordered to be tried, 
 
 disputes the debt amounts to no- see Seymour v. Corporation of rc- 
 
 thing: " Willes, J., 4 C. B. N. S. con, 29 L. J. Ex. 243. 
 
 440. Where a bond fide action is (n) Macdonald Y. Tacquah Gold 
 
 being proceeded ivith as to the debt Mines Co., 13 Q. B. D. 535. 
 
 between the judgment debtor and (0) See Wintle v. Williams, 3 H. 
 
 the garnishee, although the order to & N. 288. 
 
 attach may be made, the creditor (p) Cowan v. Carlill, 52 L. T. 
 
 will be refused an order for exe- 431. 
 
 A A2
 
 356 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Definite sum. 
 
 Legal and 
 
 equitable 
 
 debts. 
 
 Legal debts. 
 
 Unliquidated 
 sum. 
 
 Impeach- 
 ment of a 
 settlement. 
 
 SUB-SECT, (i). Ordinary Debts Owing or Accruing. 
 
 It would appear that wherever there is a definite sum 
 due to the execution debtor it comes within the words 
 " debts owing or accruing," and can be attached. And 
 since the Judicature Act, it is of no consequence that the 
 sum is not an amount which would have been recoverable 
 at law, provided that it might have been in equity. In 
 other words, both legal and equitable debts are now 
 attachable (<?). We propose to discuss, first, what legal 
 debts are attachable, and then proceed to describe what is 
 meant in this connection by an equitable debt. 
 
 As will appear, these two classes are entirely distinct, by 
 reason of the different form of remedy which was formerly 
 resorted to. 
 
 As to legal debts, the sum attachable must be an ascer- 
 tained and definite amount. 
 
 An unliquidated amount due under a covenant for 
 breach of it is not, therefore, attachable (r). And where 
 notice to treat has been given by a public body, under the 
 provisions of the Lands Clauses Consolidation Act, 1845, 
 although a contract for sale and purchase of land is 
 thereby constituted, the price is not fixed, and the amount, 
 notwithstanding that it is ascertainable by a jury, is not 
 attachable (s). 
 
 A right of action which the creditor may have to im- 
 peach a settlement of money made by the debtor is one 
 thing, but in such a case it is mistaken procedure for him 
 
 (q) Wilson v. Dundas, W. N. 
 1875, 232 ; Bitt. cxii. ; Summers 
 v. Morphew, 61 L. T. Jo. 140 ; Re 
 Cowan's Estate, 14 Ch. D. 638; 
 dicta of the Lords Justices in Webb 
 v. Stenton, 11 Q. B. D. p. 526. 
 
 (>) The covenant was a covenant 
 to indemnify against payment of 
 costs, and an attachment applied 
 for by the person to whom the 
 costs were due was refused. John- 
 
 son v. Diamond, 11 Exch. 73. It 
 is submitted that, in the face of 
 this case, the decision in Daniel 
 v. McCarthy, 7 Ir. C. L. R. 261, is 
 of questionable authority. See, 
 also, Nash v. Pease, 47 L. J. Q. B. 
 766, which, it is submitted, is 
 practically overruled by Webb v. 
 Stenton, 11 Q. B. D. 518. 
 
 (s) Richardson v. Elmit, 2 C. P. 
 D. 9.
 
 ATTACHMENT OF DEBTS. 357 
 
 to take garnishee proceedings against the trustee of the Chap. III. 
 settlement (t). Sec - 2 - 
 
 The sum attachable must be one which the debtor could, Second 
 if it had actually accrued due, and but for the attachment 
 order, recover from the garnishee by action (u). It would recoverable. 
 
 not be correct to assert that such action must be an action ??5* 
 
 debt. 
 
 in the nature of an action of debt, technically known as 
 such at law. On the contrary, where there is an ascer- 
 tained sum in the hands of the garnishee, it can be 
 attached, although the action of " debt " would not have 
 lain for it at common law (x). 
 
 And where an action for money had and received would Money had 
 lie at the suit of the debtor, the amount can be garnisheed, anc 
 as, for example, where it is the proceeds of an execution in 
 the sheriff's hands (y). A fortiori, where the garnishee 
 could be sued for the sum due from him as a debt, as in 
 the case of a banker, the order attaching and for payment 
 will be made (z). 
 
 Where the amount due from the garnishee is an ascer- Snm attached 
 tained sum larger than the sum due to the judgment ^f ert ^f n 
 creditor, it can, under the express terms of rule 1 of recovered. 
 0. XLY., which we have referred to, be attached to a 
 sufficient amount to satisfy the debt. 
 
 Where the debt sought to be attached is a debt due to Debt due to 
 
 debtor and 
 
 (t) Vyse v. Brown, 13 Q. B. D. The action in such cases was in 
 
 199. And where the garnishees form indebitatus assumpsit. 
 
 were trustees of a will, who were (y) Murray v. Simpson, 8 IT. C. 
 
 bound to manage a business and L. B. App. xlv. ; O'Neill v. Cun- 
 
 pay proceeds to debtor, it was held ningham, IT. B. 6 C. L. 503. Where 
 
 that garnishee proceedings were the sum in the sheriff's hands is 
 
 wrong. Horsley v. Cox, 4 Ch. 92. obtained under an attachment is- 
 
 (u) The debt, of course, must be sued out of the Court of Chancery, 
 
 due in the sense of not having been since money had and received would 
 
 paid or satisfied. As to the effect not lie for it, it cannot be attached. 
 
 of payment by cheque and gar- Williams v. Reeves, 12 Ir. Ch. B. 
 
 nishee order before cheque is pre- 173. 
 
 sented, see Cohen v. Sale, 3 Q. B. (z) The relation of banker and 
 
 D. 373 ; Elwell v. Jackson, 1 C. & customer is simply that of debtor 
 
 E. 362. and creditor. Foley v. Hill, 2 H. L. 
 (x) Trass v. Miehell, Cro. Eliz. Cas. p. 39 et seq. See Pott v. Clegg, 
 
 172 ; Michill v. Hores, 1 Leo. 321. 16 M. & W. 321.
 
 358 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 another un- 
 attachable. 
 
 Verdict re- 
 covered but 
 judgment not 
 signed. 
 
 No garnish- 
 ment where 
 action barred. 
 
 the judgment debtor and another person, it cannot be 
 attached to answer the debt of the former (a). The right 
 course in such a case is for the creditor to apply for equit- 
 able execution. The converse case, of a judgment against 
 several debtors and a debt due by the garnishee to one of 
 them, presents no difficulty ; in analogy to other cases of 
 execution, the debt can be attached (b). 
 
 Although a verdict has been obtained in favour of the 
 debtor in an action brought by him for unliquidated 
 damages, the sum thus ascertained is not a " debt owing 
 or accruing." "It is not sufficient that in all probability 
 there will be a debt," and judgment must be signed before 
 the amount can be garnisheed (c). The phrase " accruing 
 debt" cannot mean any debt which may at any future 
 time arise between the judgment debtor and the person 
 sought to be made a garnishee, there being no contract at 
 that time between the judgment debtor and such person, 
 or anything which can make any relation of any kind, 
 legal or equitable, between them. To state the proposition 
 is to show its absurdity (d}. Grarnishee proceedings cannot 
 be taken where the remedy by action is taken away or is 
 barred ; for example, dividends due to the debtor from 
 an estate in bankruptcy cannot be garnisheed against the 
 trustee, for the reason that by sect. 63 of the Bankruptcy 
 Act, 1883, it is expressly enacted that no action shall lie 
 against him therefor (e). 
 
 (a) Macdonald v. Tacquah Gold 
 Mines, Limited, 13 Q. B. D. 535. 
 This may, it is submitted, be said 
 to be for two reasons ; first, be- 
 cause the sum due to the debtor is 
 not ascertained, and second, be- 
 cause he by himself could not re- 
 cover the amount by action. 
 
 (b) Millerv. Mynn, 1 El. &E1. 1075. 
 
 (c) Jones v. Thompson, E. B. & E. 
 63. Money awarded under a rule 
 of court cannot be attached under 
 the custom of the city of London, 
 notwithstanding that the sum was 
 
 ascertained by the master's allo- 
 catur. Coppell v. Smith, 4 T. R. 
 312 ; Ee Irankland, L. E. 8 Q. B. 
 18. Even where judgment has 
 been signed, it does not always 
 follow that the debt is "due or 
 accruing due." How ell v. Metropo- 
 litan District My. Co., 19 Oh. D.508. 
 
 (d) Brett, M. R., in Webb v. 
 Stenton, 11 Q. B. D. p. 523. 
 
 (e) See Boyse v. Simpson, 8 Ir. C. 
 Li. R. 523 ; Gilmour v. Simpson, 8 
 Ir. C. L. R. App. xxxviii.; Ee 
 Greensill, L. R. 8 C. P. 24.
 
 ATTACHMENT OF DEBTS. 359 
 
 Similarly, a garnishee order will not be made against Chap. III. 
 the liquidator of a company in respect of a dividend in _ 
 his hands payable for the debt of the company (/) . But Liquidator 
 where the liquidator of a company is carrying on the 
 business for the beneficial winding-up of the same, and 
 debts due to the company are thus incurred, it is sub- 
 mitted that creditors, then becoming such, can attach 
 them. 
 
 Where a condition has to be performed by the debtor Sum payable 
 before the money is payable to him by the garnishee, the ^^ ^" 
 same cannot be attached. This appears to be reasonable, attachable, 
 because there i no machinery to compel the creditor to 
 perform the condition. Where, therefore, after verdict 
 and judgment for compensation for compulsory purchase, 
 judgment for specific performance had been obtained 
 against the company, it was held that there was no attach- 
 able debt, because the money was not due except on exe- 
 cuting or tendering a conveyance to the company (g}. 
 
 Where the debtor is the holder of a negotiable instru- Debtor holder 
 ment which has been endorsed to him, the debt due under note 
 it cannot be attached, for the order would prevent nego- 
 tiation (h). 
 
 The garnishee should be careful to appear and defend in Garnishee 
 all cases where the proceeding can be objected to, it will ^uft! 7 
 be too late for him to refuse to pay after the order against 
 him has been made by default. Therefore, where the 
 claim of the judgment debtor against the garnishees was 
 for an unliquidated amount, it was held that they could 
 not dispute the order for payment, which they had allowed 
 to go against them ('). 
 
 (/) It may be, perhaps, made 354 ; Dawson v. Malley, Ir. R. 1 
 
 against the company, subject to C. L. 207. 
 
 leave being granted to take the (g) Howell v. Metropolitan District 
 
 proceeding (under sect. 87 Com- Ry. Co., 19 Ch. D. 508. 
 
 panics Act, 1862), and subject to (h) Pynev. Kinna, Ir. B. 11 C. 
 
 the claims of the liquidator. In re L. 40. 
 
 Warwick and Worcester Ry. Co., (i) Randall v. Lilhgow, 12 Q. B. 
 
 Prichard's Claim, 2 De G. F. & J. D. 525.
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Debitum in 
 prcesenti sol- 
 vendum in 
 future. 
 
 Equitable 
 debts. 
 
 Sum due 
 from receiver. 
 
 A legacy. 
 
 A sum can be attached, notwithstanding that the time 
 for payment has not arrived. As it was expressed by 
 Blackburn, J. (now Lord Blackburn) : " It is evident that 
 the legislature had in view both present debt and future 
 debt, debita in prcesenti solvenda in futuro, for it speaks in 
 the earlier part of the section of " debts owing or accru- 
 ing" (K). Where the precise date on which a sum will be 
 payable does not appear from the terms of the agreement 
 between the debtor and the garnishee, the debt will never- 
 theless be attachable if it can be said that at the furthest 
 it must become due on or before a certain day(/). It 
 would appear, however, that future rent cannot be attached, 
 although rent which has actually become due can be(m). 
 
 As to equitable debts which are attachable, similar rules 
 to those we have referred to as relating to legal debts are 
 applicable. The sum must be an ascertained, and not 
 merely an ascertainable, sum, and therefore garnishee pro- 
 cedure is not applicable for a creditor to obtain a charge 
 over a share of income under a will. Until the sum is 
 actually in the hands of the trustees to be paid over, no one 
 can say that it is a debt which is debitum in prcesenti (n) . 
 We have seen that a creditor's real remedy, in case his 
 debtor is the owner of such an interest, is to proceed to 
 equitable execution (o). An example of an equitable debt 
 which is attachable, is where a receiver has been ordered 
 to pay to the debtor a definite sum periodically, and has 
 one of the instalments in his hands. This instalment can 
 be attached (p). It is submitted that since the Jud. Act 
 
 (k) Tapp\.Joncs,~L.'R. 10Q.B.591. 
 
 (1) Sparks v. Younge, 8 Ir. C. L. 
 R. 251. 
 
 (m) Mitchells. Lee, L. R. 2 Q. B. 
 259. See note (b) to Ch. Arch. Pr. 
 14th ed. 929 ; and specially judg- 
 ment of Jessel, M. R., in Chatterton 
 v. Watney, 17 Ch. D. 259. 
 
 (n) Webb v. Stenton, 11 Q. B. D. 
 518. It is submitted that Nash v. 
 Pease, 47 L. J. Q. B. 766, is of no 
 authority. Macdonald v. Tacquah 
 
 Gold Mines Co., 13 Q. B. D. 535. 
 In Bates v. Sates, W. N. 1884, 
 129, however, the order appears to 
 have been made without objection. 
 
 (o) Vide supra, p. 323. 
 
 (p) This, it is submitted, is the 
 effect of In re Gowarfs Estate, 14 
 Ch. D. 638, as modified by Webb v. 
 Stenton, 11 Q. B. D. 518. Leave 
 would have to be obtained to 
 proceed against him. Kevmey v. 
 Atrill, 34 Ch. D. 345.
 
 ATTACHMENT OF DEBTS. 361 
 
 a legacy can be garnisheed. Formerly, since it was re- Chap. m. 
 coverable at law only when the executor had assented to 
 
 it, it was attachable only in that event (q). 
 
 Where an executor is sued and judgment obtained Debt due to 
 against him by a creditor of the deceased, a sum due to 
 the executor, as such, can be garnisheed (r). This is the 
 case, of course, in whatever form the judgment against 
 him may be. 
 
 Where it is sought to attach a debt due from executors Attaching 
 to the debtor, the order should show on its face that it is executors, 
 directed to them as executors, and not personally (s). 
 
 The debt sought to be attached must not be affected by Debt affected 
 any trust. This point can but rarely arise as between the y fa 
 creditor and the garnishee. Where, however, the debtor 
 when he receives the money would hold it upon trusts other 
 than for his own benefit, it is clear that his creditor cannot 
 attach it. For example, if the debtor is an executor and the 
 debt is due to the estate, his own creditor has no right or 
 claim to attach it. This objection was unsuccessfully raised 
 by a company against which judgment had been signed ; 
 the garnishees were in that case a railway company which 
 had guaranteed the payment of interest to the debenture 
 holders of the indebted company (t). Where, however, 
 there is a bond fide suggestion that it is trust money, no 
 order for attachment of the debt should be made, but the 
 amount should be ordered into Court to abide the event of 
 an inquiry whether it is trust money or not (u). 
 
 The cases we have just referred to arose under circum- Claim by 
 stances where it was to the interest of the judgment 
 debtor or his cestui que trust to contend that the sum in 
 question was trust money. The rules do not expressly 
 
 (q) Macdonald v. Hollister, 3 "W. (t) JBouch v. Sevenoaks, M. % T. 
 
 R. 522. Ey. Co., L. E. 4 Ex. D. 133. 
 
 (r) Burton v. Roberts, 6 H. & N. (u) Roberts v. Death, 8 Q. B. D. 
 
 93 ; Fowler T. Roberts, 2 Giff. 226. 319. See Westoby v. Day, 2 El. & 
 
 (*) Hellish, L. J., in Stevens v. Bl. 605. 
 PMips, 10 Ch. 417.
 
 362 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 0. XLV. r. 5. 
 
 thlrdperson 
 to appear. 
 
 O. XLV. r. 6. 
 
 toclaTinof & * 
 third person. 
 
 Summary 
 of question, 
 
 Effect of 
 rule's er 
 
 provide for such a case, but they do provide for the settle- 
 ment of any such question arising on the suggestion of 
 the garnishee. By rule 5 of 0. XLV. : " Whenever in 
 proceedings to obtain an attachment of debts it is sug- 
 gested by the garnishee that the debt sought to be attached 
 belongs to some third person, or that any third person has 
 a lien or charge upon it, the Court or a judge may order 
 such third person to appear and state the nature and par- 
 ticulars of his claim upon such debt" (#). 
 
 By rule 6 : " After hearing the allegations of any 
 third person under such order, as in rule 5 mentioned, and 
 O f any other person whom by the same or any subsequent 
 order the Court or a judge may order to appear, or in 
 case of such third person not appearing when ordered, 
 the Court or judge may order execution to issue to levy 
 the amount due from such garnishee, or any issue or ques- 
 tion to be tried or determined according to the preceding 
 rules of this Order, and may bar the claim of such third 
 person, or make such other order as such Court or judge 
 shall think fit, upon such terms in all cases with respect to 
 the lien or charge (if any) of such third person, and to 
 costs, as the Court or judge shall think just and reason- 
 able." 
 
 It is of course open to the parties to consent to have 
 any dispute determined by the Court or judge in a 
 summary manner. When this is done the order made 
 comes within sect. 49 of the Judicature Act, 1873, and 
 there is no appeal except by leave of the Court or judge 
 making the order (y). 
 
 It should be clearly borne in mind that these rules 
 apply after the garnishee order, on the ex parte application 
 of the creditor, has been made. The order therefore 
 made under rule 6 may vary or even, in effect, discharge 
 
 (x) It is too narrow a construe- 
 tion of the rules for the court or 
 judge to refuse to hear a sugges- 
 tion from any one but the garnishee. 
 
 See Roberts v. Death, 8 Q. B. D. 
 319. 
 
 (y) Hade v. Winser, 47 L. J. Q. 
 B. 584.
 
 ATTACHMENT OF DEBTS. 363 
 
 altogether the original garnishee order, and in such case Chap. ill. 
 the costs will usually fall upon the judgment creditor. gcc ' ^' 
 
 SUB-SECT, (ii). Execution against Pensions and other 
 periodical Payments. 
 
 The subject of this sub-section, though it may be fairly 
 discussed in a chapter devoted to the attachment of debts, 
 is by no means confined to the limits of the particular 
 procedure by means of garnishee orders. 
 
 The simplest kind of periodical payment is what is A personal 
 known as "an annuity." An annuity is denned as "a a 
 yearly payment of a certain sum of money granted to 
 another in fee for life or years, charging the person of the 
 grantor only"(s). The grant can, inter vivos, only be by 
 deed. We have seen that where such an annuity is 
 charged on land it can be sold under a fi. fa., which is 
 therefore the appropriate method of execution (a). There 
 would appear to be no theoretical objection to its being 
 sold under a fi. fa., even where it is not charged upon 
 land, but a mere personal contract, for it is not a chose in 
 action, and can be assigned by deed at common law (b) . 
 It is submitted, however, that the most direct and satis- 
 factory procedure would be to attach it, the grantor being 
 the garnishee (c). 
 
 Where an annuity is given by will it does not stand on Annuity 
 the same footing as where it has been granted by deed, or under a wlU - 
 where it is a mere payment of a debt by instalments. 
 The executors or trustees of the will are the persons who 
 are by the terms of it bound to pay the annuity. It 
 would appear from the principles we have already dis- 
 
 (z) Co. Litt. 144 b. The pay- be possible to proceed in this man- 
 
 ment must not be made as and by ner. Though, perhaps, where the 
 
 way of interest upon a debt. Winter annuity is in the nature of a pen- 
 
 v. Mouseley, 2 B. & Aid. 802. sion i. e., determinable on the life 
 
 (a] Vide supra, p. 130. of the grantee this is not the pro- 
 
 (4) Co. Litt. 144 b, n. (1). per method. Sooth v. Trail, 12 
 
 (c) By the analogy of Tapp v. Q. B. D. 8. See Crompton, J., in 
 
 Jones (L. K. 10 Q. B. 591), it should Jones v. T/iompson, E. B. & E. 63.
 
 364 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Effect of Ap- 
 portionment 
 Act, 1870. 
 
 Salary and 
 wages. 
 
 Pay for pub- 
 lic services. 
 
 cussed, that in such a case the proper remedy of the execu- 
 tion creditor is to proceed by way of equitable execution (d) . 
 It is suggested that in all cases of annuities sufficient 
 reference has not been made to the Apportionment Act, 
 1870 (<?). It would certainly appear from the terms of that 
 Act that the apportioned part of a periodical payment is, 
 at the date of the application to charge it, a debt accruing 
 within the meaning of the rule. Such apportioned part 
 seems distinctly .to be debitum inprcesenti solvendum infuturo. 
 
 Where one person has contracted to work for, or to 
 serve another in any capacity for salary (which means 
 ascertained remuneration to be paid at stated intervals), 
 the case is again governed by the principles already 
 discussed. Until the work is done or the service per- 
 formed there is no debt owing or accruing (/). But 
 when the work has been done or service performed, 
 and the instalment of salary is payable, it can be at- 
 tached (</). Provision has been made prohibiting the 
 attachment of the wages of any servant, labourer, or work- 
 man (A). It is submitted that the Apportionment Act, 
 1870 (), has no application to salary or wages (&). 
 
 The pay of officers or functionaries in the service of the 
 State is, under special principles, inalienable, and therefore 
 cannot be attached to answer the claims of creditors (I) . 
 This principle is part of the general law and is entirely 
 
 (d) Vide supra, p. 323. But 
 where a garnishee order had been 
 made attaching an annuity pay- 
 able under a will, it was held to 
 deprive the beneficiary of that an- 
 nuity under a clause against assign- 
 ment of it. Bates v. Sates, W. N. 
 1884, 129. 
 
 (e) 33 & 34 Viet. c. 35. 
 
 (/) Hall v. Pritchett, 3 Q. B. D. 
 215. In an old case the salary of 
 an equerry was held not to be sub- 
 ject to sequestration. Fenton v. 
 Lowther, 1 Cox, 315. 
 
 (<7) Gordon v. Jennings, 9 Q. B. 
 D. 45. 
 
 (h) 33 & 34 Viet. c. 30. And as 
 to seamen's wages, 17 & 18 Viet. 
 c. 104, s. 233. 
 
 (t) 33 & 34 Viet. c. 35. 
 
 (A) In some cases an apportioned 
 part might perhaps be recovered 
 on a quantum meruit, apart from 
 the Act altogether. 
 
 (I) The first test is whether or 
 not the pay is alienable. See Lucas 
 v. Harris, 18 Q. B. D. 127 ; Birch 
 v. Birch, 8 P. D. 163, approved.
 
 ATTACHMENT OF DEBTS. 365 
 
 independent of statutory enactment (m), although, as we Chap. III. 
 
 shall notice, the legislature has expressly prohibited assign- _ 
 
 ment in several cases. The principles are, perhaps, most 
 
 concisely stated in a judgment of Lord Kenyon, in the 
 
 leading case on the subject, the question there being 
 
 whether the half -pay of an officer in the army passed to 
 
 his creditors under an Insolvent Act. Lord Kenyon, C. J., 
 
 said : "I am clearly of opinion that this half -pay could not Half -pay of 
 
 be assigned by the defendant, and, consequently, that the officer - 
 
 creditors are not entitled to an assignment of it for their 
 
 benefit. Emoluments of this sort are granted for the 
 
 dignity of the State, and for the decent support of those 
 
 persons who are engaged in the service of it. It would, 
 
 therefore, be highly impolitic to permit them to be assigned ; 
 
 for persons who are liable to be called out in the service 
 
 of their country, ought not to be taken from a state of 
 
 poverty. Besides, an officer has no certain interest in his 
 
 half -pay ; for the king may at any time strike him off the 
 
 list. Indeed, assignments of half -pay have been frequently 
 
 made in fact, but they cannot be supported in law. It 
 
 might as well be contended that the salaries of the judges, 
 
 which are granted to support the dignity of the State and 
 
 the administration of justice, may be assigned" (ri). 
 
 The principle applies not only to half -pay, but, of course, Full-pay. 
 a fortiori, to full pay (o), and has been held to apply to a 
 pension granted to a nobleman to sustain the dignity of 
 the title (p) . In order for the principle to apply to officers 
 employed in the administration of justice, they must be 
 officers of the Court. A mere clerk, whose duties were to 
 
 (m) Apthorpe v. Apthorpe, 12 627 ; Apthorpe v. Apthorpe, 12 
 
 P. D. 192. P. D. 192. But an assignment of 
 
 () Flarty T. Odium, 3 T. R. 681 ; military pay already in the hands 
 
 LMerdale \. Montrose, 4 T. R. of an officer's agents is good. Spencer 
 
 248 ; Stone v. Lidderdale, 2 Anstr. v. Cox, 2 Anstr. 535, note ; Tuwtall 
 
 533. Judgment of Parke, B., in v. Boothby, 10 Sim. p. 549. 
 Wells v. Foster, 8 M. & "W. 149 ; (p) Note to Barwicl; v. Reade, 1 
 
 Apthorpe -v. Apthorpe, 12 P. D. 192. H. Bl. 627; Davis v. Duke of 
 
 (o) Harwich v. Reade, 1 H. Bl. Marttorough, 1 Swanst. 74.
 
 366 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Fellowship of 
 a college. 
 
 Canonry. 
 
 Military pay 
 and pensions. 
 
 assist the registrars of the Prerogative Court of Canter- 
 bury, was decided not to be such an officer, and an assign- 
 ment of the profits of his office was held valid (<?). From 
 the judgment in the last-mentioned case, it appears that 
 a clerk of the peace would be such an officer (r). 
 
 The principle does not extend to the emoluments of the 
 fellow of a college, there are no duties connected with such 
 a situation or office to make an assignment of the income 
 contrary to public policy (s). Nor are the duties of the 
 holder of a canonry of Windsor such as to render an 
 assignment of the profits thereof void (t). 
 
 It is suggested that the very nature of payments to 
 servants of the State, for services to be performed, precludes 
 their being assigned ; there is no amount recoverable at 
 law, nor any one who can be said to be a debtor to the 
 recipient (u). 
 
 Besides the principles of the general law which we have 
 referred to, the assignment of pay is prohibited in certain 
 cases by statute. Sect. 141 of the Army Act, 1881 (#), 
 
 (q) Aston v. Gwinnell, 3 Yo. & 
 Jer. 1 36 ; Palmer v. Vaughan, 3 
 Swanst. 173. 
 
 (r) 3 To. & Jer. 149. 
 
 (s) Feistel v. King's College, Cam- 
 bridge, 10 Beav. 491 ; and see Ber- 
 Jcely v. King's College, Cambridge, 
 10 Beav. 602. 
 
 (t) Grenfell v. Dean of Windsor, 
 2 Beav. 544. 
 
 (u) The payment is usually made 
 by the proper official with whom 
 the money granted by parliament 
 is deposited to defray the charges 
 in the estimates. A warrant from 
 the proper quarter is made out, 
 and thereupon the amount is paid. 
 There is nothing here in the nature 
 of a debt. See Davis v. Duke of 
 Marlborough, 1 Swanst. 74 ; Ex 
 parte Battine, 4 B. & Ad. 690 ; 
 
 Priddy v. Eose, 3 Mer. 86. Action 
 for money had and received by as- 
 signee of half-pay against Pay- 
 masters-general held not to lie. 
 Lldderdale v. Montrose, 4 T. E. 
 248. But see Priddy v. Eose, 3 
 Mer. 86, p. 102. On the grounds 
 mentioned in the text, Lord Lynd- 
 hurst refused to appoint a receiver 
 of the salary of a parliamentary 
 counsel to the Treasury. Cooper v. 
 Eeilly, 1 Euss. & My. 560. 
 
 (x) 44 & 45 Viet. c. 58. The 
 term "military reward" is, by 
 sect. 190, sub-sect. (19), denned 
 to mean any gratuity or annuity 
 for long service or good conduct, 
 and to include any good-conduct 
 pay or pension, and any other mili- 
 tary pecuniary reward.
 
 ATTACHMENT OF DEBTS. 
 
 367 
 
 prohibits any charge or agreement to assign or charge any Chap. in. 
 deferred pay or military reward payable to any officer or Sec - 2 (") 
 soldier of any of her Majesty's forces. The assignment of 
 half-pay by officers of the navy is also prohibited (y). And 
 with reference to the pay of subordinate officers, seamen 
 in the navy and marines, they are prohibited from 
 charging or assigning their pay, wages or other allowance (z). 
 
 A pension granted for past services is alienable, unless Alienable 
 there is some statutory enactment rendering it inalien- peE 
 able (a). The following are examples of pensions which, 
 on the above principle, have been held assignable or seiz- 
 able in execution : 
 
 A pension to A., and his assigns, payable at the 
 Treasury, (i). 
 
 An annuity granted to a commissioner of bankrupts (c). 
 
 Pension and annuity of a retired officer in the East 
 India Company's service (d). 
 
 Pension of a retired officer in the Indian navy (e). 
 
 Pension as a civil servant in the legal department of 
 the government (/). 
 
 Pension granted to a County Court judge who had 
 resigned (g). 
 
 (y) 28 & 29 Viet. c. 73, s. 4. 
 
 (z) 28 & 29 Viet. c. 73, s. 5, ex- 
 tended by 47 & 48 Viet. c. 44, s. 2. 
 
 (a) The nature of pensions from 
 the Crown is not the same in all 
 cases. Originally, a pension was 
 apparently equivalent to a corody, 
 and was a sum reserved to the 
 Crown on the appointment of 
 bishops and other ecclesiastical 
 functionaries. A pension given 
 by the Crown lay in grant. The 
 method of granting was no doubt 
 by letters patent. See, generally, 
 Co. Lit. 97a, Harg. note (3). For 
 form of grant, Fitz. N. B. 230, 
 233. A State pension at the 
 present time is payable by the 
 
 proper State official on a warrant 
 from the proper quarter (as has 
 been mentioned in the text), or 
 under special regulations of the 
 government offices. 
 
 (4) M l Car thy v. Goold, 1 Ba. & 
 Be. 387 ; Noad v. Backhouse, 2 Y. 
 & C. C. C. 529. 
 
 (e) Under 5 & 6 Viet. c. 122, 
 s. 58. Spooner \. Payne, 1 De G. 
 M. & G. 383. 
 
 (d ) Heald v. Hay, 3 Gift. 467 ; 
 Carew v. Cooper, 4 Giff. 619. 
 
 (e) Dent v. Dent, L. K. 1 P. & D. 
 366. 
 
 (/) Sansom v. Sansom, 4 P. D. 69. 
 (ff) Willcock v. TerreU, 3 Ex. D. 
 323.
 
 368 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Method of 
 execution 
 against pen- 
 sions. 
 
 Inalienable 
 pensions. 
 
 Military 
 pensions. 
 
 Indian 
 pensions. 
 
 Naval 
 pensions. 
 
 Retiring in- 
 cumbent. 
 
 Superannua- 
 tion allow- 
 ance from 
 East India 
 Company. 
 
 It is to be noted, that in none of these cases is the 
 process by garnishee order available. If the pension is 
 attachable, the process is by equitable execution. In the 
 cases above referred to, either sequestration or a receiver 
 was resorted to. Where, however, the pension is legally 
 recoverable from the body of persons or the person who 
 should pay it, those instalments which are due can be 
 attached by garnishee; as, for example, the superannua- 
 tion allowance payable to a retired police constable (h). 
 
 Statutes have been passed rendering certain pensions 
 for past services inalienable in the cases following : 
 
 Military pensions payable to any officer or soldier of 
 her Majesty's forces (i). 
 
 Pensions granted by the government on account of past 
 services in India (&). 
 
 Pensions granted to any naval officer, seaman, or 
 marine (/). 
 
 Pensions to retiring clerks under the Incumbents' Re- 
 signation Act, 1871 (m). 
 
 One general reason, which we have already given, why 
 pensions to State servants are often unattachable, viz., the 
 form in which the payment of them is made, is applicable in 
 other cases. Where, for example, a superannuation allow- 
 ance was made to a retired official by resolution of direc- 
 tors of the East India Company, it was held not to be 
 subject to garnishee process (). But where a pension was 
 
 (h) Booths. Trail, 12 Q. B. D. 8. 
 
 (i) 44 & 45 Viet. c. 58, s. 141 ; 
 vide supra, p. 366. See, under 
 former enactment, Lloyd v. Cheet- 
 ham, 3 Giff. 171. 
 
 (k) Pensions Act, 1871 (Indian 
 Act, No. xxiii), ss. 11, 12. The 
 prohibition against pensions being 
 taken in execution extends, ex- 
 pressly, to India only ; but the in- 
 tention of the Legislature is carried 
 out by sect. 141, mentioned in last 
 note. Birch v. Birch, 8 P. D. 163 ; 
 
 Lucas v. Harris, 18 Q. B. D. 127. 
 
 (T) 28 & 29 Viet. c. 73, s. 4. It 
 is, perhaps, questionable whether 
 the pension of a naval surgeon Is 
 rendered inalienable by this section. 
 His rank is equal to that of a lieu- 
 tenant. See Apthorpe v. Apthorpe, 
 12 P. D. 192. 
 
 (m) 34 & 35 Viet. c. 44, s. 10 ; 
 Gathereole v. Smith, 17 Ch. D. 1. 
 
 (ri) Innes v. East India Co., 17 
 C. B. 351. Nor did such a pen- 
 sion under the Bankruptcy Act,
 
 ATTACHMENT OF DEBTS. 369 
 
 granted to a retired judge of a Crown colony, although Chap. in. 
 it is by nature a mere bounty, it is property which passes ec ' ^' 
 to the trustee in bankruptcy of his estate (0) ; and taking 
 the test of alienability as deciding whether or not such a 
 pension would be attachable by equitable execution, there 
 appears ground for saying that a receiver would be ap- 
 pointed (/?) . 
 
 In those cases where a pension or other allowance is Form of order 
 attachable by equitable methods and not by garnishee equitable 
 process, attention must be called to what has been stated execution, 
 in a former chapter as to the form the order charging the 
 fund should take (q). We have there seen the extent to 
 which the Court has jurisdiction to order payment by the 
 third person in whose hands the money may be (r). 
 
 SECT. 3. THE EFFECT OF THE GTARNISHEE ORDER. 
 
 "We have already, in sect. 1 of this chapter (.$), discussed o. XLV. r. 2. 
 the procedure for obtaining a garnishee order and sub- Service and 
 sequent proceedings thereon, and have also referred to effect. ' 
 rule 2 of 0. XLV. by which " Service of an order that 
 debts, due or accruing to a debtor liable under a judgment 
 or order, shall be attached, or notice thereof to the gar- 
 nishee, in such manner as the Court or a judge shall 
 direct, shall bind such debts in his hands." 
 
 The binding of the debt dates from the service and not 
 from the order being made (t). 
 
 The effect of the above rule is stated to be to bind the Effect of the 
 debt attached, and to prevent the creditor from receiving rule - 
 
 1869, pass to the trustee in bank- (r) Crispin v. Cumano, L. K. 1 P. 
 
 ruptcy of the recipient. Ex parte & D. 622 ; Willcock v. Terrell, 3 Ex. 
 
 Hawker, 1 Ch. 214. D. 323 ; Sansom v. Sansom, 4 P. D. 
 
 (o) Ex parte Hoggins, 21 Ch. D. 69. 
 
 85. (*) Vide supra, p. 350. 
 
 (p) See judgment of Jessel, (t) Se Stanhope Silkstone Collieries 
 
 M. R., in Ex parte Huggins, Co., 11 Ch. D. 160 ; Hamer v. Giles, 
 
 pp. 90, 91. 11 Ch. D. 942. 
 
 (?) Vide supra, p. 289. 
 
 E. B B
 
 370 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. it. " There is nothing in the terms of the general order 
 to affect any security for the debt ; it only takes away the 
 right of the judgment debtor to receive the money, and 
 gives the judgment creditor a right to receive it" (u). 
 The garnishee is therefore discharged from paying to the 
 debtor so much of the debt as is actually paid to the 
 creditor under the attachment. 
 O. XLV. r. 7. Express provision is made in respect of this by r. 7 of 
 
 Discharge of Q XLV., whereby "Payment made by, or execution 
 garnishee. J . J 
 
 levied upon, the garnishee under any such proceeding as 
 
 aforesaid, shall be a valid discharge to him as against the 
 debtor liable under a judgment or order to the amount 
 paid or levied, although such proceeding may be set aside 
 or the judgment or order reversed " (#). 
 
 This does not authorise the garnishee to make an 
 arrangement for payment to the creditor immediately the 
 order is served on him, the order must be made absolute 
 before he can justify under it a payment as having been 
 made by him ( y) . This appears to be the true construc- 
 tion of the words in the rule " under any such proceeding 
 as aforesaid." The authorities on this point have, however, 
 gone so far as to exonerate a garnishee who has, under 
 threat of execution or actual execution, paid his debt, al- 
 though he has, after the order for execution has been made 
 against him, received notice of the debtor's bankruptcy (z). 
 
 (u] Judgment of Cotton, L. J. , might set up such payment against 
 
 in Chatterton v. Watney, 17 Ch. D. the person to whom the debt from 
 
 259. It follows, therefore, that a him was due. Mayor of London v. 
 
 charging order does not operate as Joint Stock Bank, 6 Ap. Ca. 393. 
 
 an assignment of the debt itself. See Wetter v. Sucker, 4 Moo. 172. 
 But where the debt garnisheed is (y) Turner T. Jones, 1 H. & N. 
 
 a judgment debt, the general order 878, where on service the garnishee 
 
 operates as a stay of execution upon had given to the creditor a promis- 
 
 the judgment. Re Connan, Ex parte sory note, and no further proceed- 
 
 Hyde, 20 Q. B. D. 690. ings were taken. See also Lockwood 
 
 (x) See Be Smith, Ex parte Brown, v. Nash, 18 C. B. 536. 
 20 Q. B. D. 321. Possibly on prin- (z) Wood v. Dunn, L. R. 2 Q. B. 
 
 ciple, and apart from this rule, 73 ; Turnbull v. Robertson, 47 L. J. 
 
 where the garnishee has by due pro- C. P. 294 . 
 cess of law been compelled io pay, he
 
 ATTACHMENT OF DEBTS. 371 
 
 Where the garnishee pays the amount of the debt into Chap. III. 
 Court, either voluntarily, as he is at liberty to do, or under 
 
 an order made against him, such payment is equivalent to Payment into 
 payment to the creditor under the above rule, and dis- charge, 
 charges him (a). 
 
 If the garnishee alleges against the debtor a set-off in Set-off 
 respect of the debt attempted to be garnisheed, it can be 
 gone into under rule 3 above referred to (). This is clear 
 as regards a set-off, strictly so-called, and under the statute 
 of set-off (c), because a set-off is a defence in bar. It has Counter- 
 apparently yet to be decided to what extent a garnishee 
 can raise against a creditor attaching the debt a counter- 
 claim under sect. 24, sub-s. (3) of the Jud. Act, 1873, and 
 0. XIX. r. 3 (d). There is no place in garnishee pro- 
 ceedings for the discussion of cross claims between the 
 garnishee and the judgment creditor (e). 
 
 The meaning of the words "shall bind such debts in "Shall bind 
 his hands " must be now discussed in relation to the claims his hands." 
 of other creditors and third persons. The debt must be 
 " in his hands" to be attachable at all, and therefore where 
 a garnishee order has been obtained against executors of 
 an estate in chancery, and they have paid the estate into 
 Court, effect will not be given to the order by payment 
 out to the creditor (/). The effect of the order being 
 such as we have stated, no authority is required for the 
 proposition that, as between competing creditors having 
 garnishee orders, the first to serve his order is entitled to 
 priority. 
 
 With regard to the claims of third parties other than Claims of 
 competing creditors, we have, in sect. 2, sub-s. (i), supra,* 
 referred to the procedure to be adopted in order to settle 
 
 (a) Culverliouse v. Wickens, L. E. (d) A counter-claim has not the 
 
 3 C. P. 295. effect of a defence, but of a cross- 
 
 (b) Vide supra, p. 353. action. 
 
 (c) 2 Geo. II. c. 22, s. 13; and (e) Samptonv. Seaton, c. By. Co., 
 8 Geo. H. c. 24, s. 4. L. K. 10 Q. B. 28. 
 
 (/) Stevens v. Phelips, 10Ch.417. 
 U B2
 
 372 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Purchase - 
 money of 
 land. 
 
 Effect of 
 attachment of 
 rent. 
 
 Solicitor's 
 lien over 
 sum re- 
 covered. 
 
 their claims. The main principle applicable in this, as in 
 all other cases of execution, is that the execution creditor can 
 get no further right than the debtor could honestly give 
 him. The debt, therefore, is attached, subject to all claims of 
 whatever nature in respect to it. Bearing this in mind, it 
 is therefore an elementary proposition that a debt which has 
 at the date of service already been assigned to a third per- 
 son cannot be attached at all (g]. Where the claim of the 
 third person is a mere equitable charge of which the creditor 
 had no notice, it will nevertheless rank in priority to his 
 garnishee order (h). Again, where the sum endeavoured 
 to be garnisheed is the purchase-money of land payable 
 under a contract, it is doubtful whether it can be attached, 
 for this might " deprive the purchasers of their right to 
 withhold payment of their purchase-money until they get 
 their conveyance" ('). 
 
 The mere fact, however, that by the attachment of the 
 debts the debtor may be deprived of a collateral means of 
 recovering it, will not prevent the order being made, for 
 example, against a tenant, though thereby the landlord 
 (debtor) is deprived of his remedy by distress (A*) . Several 
 cases have arisen upon the lien of solicitors for costs over 
 a judgment debt recovered by their instrumentality. Soli- 
 citors in such cases have, apart from the statute, a lien over 
 the fund, and such lien cannot be affected by an assign- 
 ment of the fund by the client (/). It is true that the 
 solicitor can obtain a charging order under 23 & 24 Viet. 
 c. 127, s. 28, but his not having done so until subsequently 
 to the service of the garnishee order, will not affect his 
 priority. The creditor is not a purchaser, and the debtor 
 
 (g) See Webster v. Webster, 31 
 Beav. 393. 
 
 (h) Ex parte Whitehouse, 32 Ch. 
 D. 512 ; Badeleyv. ConsolidatedBank, 
 34 Ch. D. 536, p. 546. 
 
 (f) Howellv. Metropolitan, $c.,Ry. 
 Co., 19 Ch. D. p. 515. In connection 
 with this point, consider Sparks v. 
 
 Younge, 8 Ir. C. L. B. 251. 
 
 (k) Mitchell v. Lee, L. K. 2 Q. B. 
 259. 
 
 (I) Haymesv. Cooper, 33 Beav. 431 ; 
 Hamer v. Giles, 11 Ch. D. 942; 
 Dallow v. Garrold, 14 Q. B. D. 
 543.
 
 ATTACHMENT OF DEBTS. 373 
 
 could not honestly give any person a charge ousting the Chap. in. 
 solicitor (w). 
 
 The effect of the bankruptcy of the judgment debtor Bankruptcy 
 upon garnishee proceedings is regulated by sect. 45 of the 
 Bankruptcy Act, 1883, which has been set out in a former 
 chapter () . It will be observed that by that section the 
 creditor is not entitled to retain the benefit of the attach- 
 ment unless the execution is completed by the receipt of 
 the debt. The act means what it says, that the attach- 
 ment must be completed by receipt of the debt, and there- 
 fore a payment of the sum attached into Court to abide the 
 result of an issue between the creditor and a third person, 
 is of no avail against the trustee in bankruptcy (0). The 
 position of the creditor who has obtained a garnishee order 
 is changed materially for the worse by the new enactment, 
 for, under the Act of 1869, the question was always 
 whether he had, by obtaining and serving the garnishee 
 order, become a secured creditor (p). 
 
 SECT. 4. ATTACHMENT BOOK AND COSTS. 
 
 By 0. XLY. r. 8, " There shall be kept by the proper Debt attach- 
 officer a debt attachment book, and in such book entries 
 shall be made of the attachment and proceedings thereon, 
 
 (m) Dallow v. Garrold, 14 Q.B.D. () Vide supra, p. 152. 
 
 543. The decision in this case ob- (o) Sutler v. Wearing, 17 Q. B. 
 
 viates the necessity of more than a D. 182. 
 
 reference to the prior decisions. (p) Emanuel v. Bridger. L. R. 
 
 Hough v. Edwards, 1 H. & N. 171 ; 9 Q. B. 286 ; Lowe v. Blakenwre, 
 
 Sympson v. Prothero, 26 L. J. Ch. L. R. 10 Q. B. 485 ; Ex parte Jose- 
 
 671; irchall\.Puffin,~L.R,. IOC. P. tyne, 8 Ch. D. 327; Re Stanhope 
 
 397; Shippeyv. Grey, 49 L. J. Q. B. Silkstone Collieries Co., 11 Ch. D. 
 
 524. If the creditor has, with no- 160. But the title of the trustee in 
 
 tice of the lien, been paid by the bankruptcy might by relation back 
 
 garnishee, such creditor will be oust the title of the creditor to the 
 
 ordered to refund to the solicitor. debt garnisheed. Ex parte Fillers, 
 
 Eisdell v. Coningham, 28 L. J. Ex. 17 Ch. D. 653. 
 213.
 
 374 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book in. with names, dates, and statements of the amount recovered, 
 and otherwise ; and copies of any entries made therein may 
 be taken by any person, upon application to the proper 
 officer." 
 
 Costs. By 0. XLY. r. 9, " The costs of any application for 
 
 an attachment of debts, and of any proceedings arising 
 from or incidental to such application, shall be in the 
 discretion of the Court or a judge." 
 
 Position of The costs of garnishee proceedings are frequently of 
 
 costs. ' ' considerable importance, because, if the proceedings are 
 abortive, the creditor has to bear them. He stands the 
 risk of there being any other claimant to the debt. 
 Perhaps, on bankruptcy of the debtor, before receipt of 
 the debt by the creditor, he would be admitted to prove 
 for the amount charged by his order, and the costs. 
 Where the creditor fails in obtaining or upholding an 
 order he cannot, of course, get the costs from the debtor. 
 Where he succeeds, he adds his costs to his judgment debt, 
 and they are payable out of the sum garnisheed (</). If 
 the garnishee disputes his liability and is defeated, he will 
 have to pay the costs (r) . If the garnishee does not 
 dispute his liability, he is entitled to a small sum for his 
 costs. 
 
 (q) Simmons v. Storer, 14 Ch. D. (r) Johnson v. Diamond, 11 Ex. 
 
 154. 431.
 
 ( 375 ) 
 
 Chap. IV. 
 
 CHAPTER IY. 
 
 EXECUTION AGAINST MARRIED WOMEN. 
 
 WE have already, in its proper place, sketched in outline Husband's 
 the extent to which a husband is entitled or liable to ty ' 
 execution upon a judgment or order for or against a 
 wife (a). We shall here refer again to his liability, where 
 necessary, in greater detail. 
 
 In view of the legislation on the subject, we propose to Arrangement 
 divide this chapter into three sections : chapter. 
 
 Sect. 1. The law relating to execution against married 
 women and their property prior to the 9th August, 1870. 
 
 Sect. 2. The law relating to execution against married 
 women and their property on and after the 9th August, 
 1870, and prior to 1st January, 1883. 
 
 Sect. 3. The law relating to execution against married 
 women and their property after 31st December, 1882. 
 
 SECT. 1. THE LAW RELATING TO EXECUTION AGAINST 
 MARRIED WOMEN PRIOR TO THE 9ra AUGUST, 1870. 
 
 Before the 9th August, 1870, the date of the passing What judg- 
 and coming into operation of the Married Women's be signed 
 Property Act, 1870 (b), no action at law could be sustained, agamst a 
 and, therefore, no judgment signed, against a married woman at 
 woman without joining her husband (c). But, although 
 
 (a) Vide supra, p. 25. were a feme sole, and she neglected 
 
 (b) 33 & 34 Viet. c. 93. to plead coverture, so that judg- 
 
 (c) If an action were brought ment was signed against her, her 
 against a married woman as if she husband and she could bring a writ
 
 376 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Liability of 
 married 
 woman in 
 equity. 
 
 no action could be properly brought against a married 
 woman alone, she and her husband jointly might well, 
 under certain circumstances, be sued, and judgment signed 
 against them accordingly (d). Wherever such judgment 
 was signed, execution following it was good, so that, for 
 example, a ca. sa. could be, and was, regularly issued only 
 when against both husband and wife. Both could be taken 
 under this form of execution (e) . As to execution against 
 property, the husband was alone deemed capable of owning 
 or holding it, and no question (at law) could arise as to 
 execution against the property of a married woman, for it 
 was non-existent (/). Where judgment in the usual form 
 was signed against husband and wife by default, she did 
 not become personally liable so as to render property 
 settled to her seperate use with a restraint on anticipation 
 available (g). 
 
 In equity the status of a married woman, with respect 
 to property, was regarded from a different standpoint. 
 The jus maritus was recognized where there appeared 
 
 of error. Hayward v. Williams, 1 
 Roll. Abr. 748, pi. 18 ; Haydon v. 
 Miller, 2 Roll. Rep. 53. If, how- 
 ever, pending an action against a 
 feme sole, she married, and then 
 judgment was signed against her, 
 she might be arrested regularly on 
 a ca. sa. Haydon v. Miller, ubi 
 supra ; Doyley v. White, Cro. Jac. 
 323 ; Scott v. Morley, 20 Q. B. D. 
 120, judgment of Bowen, L. J., at 
 p. 127. The report of this last- 
 mentioned case indicates the au- 
 thorities which show under what 
 circumstances the Court would dis- 
 charge the married woman from 
 custody. 
 
 (d] The cases in which such a 
 judgment could, at the period we 
 are discussing, have been obtained, 
 may be said to have been of two 
 classes : (a) ante-nuptial debts, 
 
 contracts and torts of the wife : 
 judgment debts recovered against 
 the wife dum sola could be enforced 
 against the husband by sci. fa. 
 (Vide supra, p. 25.) (b) Post- 
 nuptial torts of the wife, the wife 
 being under an absolute incapacity 
 to contract, there could be no post- 
 nuptial contracts : on contracts for 
 necessaries, the husband was, of 
 course, liable alone, and the judg- 
 ment was not against him and his 
 wife jointly. 
 
 (e) Vide supra, note (c), preced- 
 ing page. 
 
 (/) Even the wife's parapher- 
 nalia was, for the purposes of exe- 
 cution, taken as belonging to the 
 husband. 2 Rop. Husb. & "W. 142. 
 
 (ff) Chapman v. Biggs, 1 1 Q. B. D. 
 27.
 
 EXECUTION AGAINST MARRIED WOMEN. 377 
 
 nothing to exclude it, as fully as it was at law. Thus, the Chap. IV. 
 husband's legal right to property was always unquestioned, 
 
 and where there was no indication of an intention to ex- 
 clude his ownership, the same result followed with respect to 
 equitable property. But, under the exclusive jurisdiction 
 exercised by the Court of Chancery, all property which 
 belonged to the wife " for her separate use " was protected "For her 
 and kept for her enjoyment against, and notwithstanding 
 the claims of the husband or his creditors. It would be 
 presumptions, if not impossible, to attempt to describe, 
 within the limits assigned to this work, the different events 
 upon which property was held to be "for the separate 
 use " of the wife. It will suffice for us to point out that 
 with respect to it, she .was regarded in equity almost 
 entirely as a single woman. She could dispose of it, enter 
 into an engagement so as to bind it, and enjoy it in whatever 
 manner she pleased. On to this anomaly was engrafted The restraint 
 another that her power of disposition of property settled tion nticlpa " 
 to her separate use, could be limited, almost absolutely, 
 by what is sufficiently described as " the restraint on 
 anticipation." 
 
 Concurrently with the development of the theory of Liability of 
 property to the separate use of the wife, and her capacity the^eparate 
 to hold or own it, there grew up a corresponding theory we" 
 of liability with respect to it(h). This liability was recog- 
 nized only in equity, and enforceable only by its decrees. 
 We are not concerned here to explain in what cases this 
 remedy in equity could be obtained by a person claiming 
 
 (A) A learned author suggests, agent of a corporation in his em- 
 ' ' that the separate estate may be ployment can bind nothing but the 
 regarded as a sort of artificial per- corporate property, the engage- 
 son created by Courts of equity, ment of a married woman can bind 
 and represented by the beneficial nothing but her separate estate, 
 owner as an agent with full powers, This way of looking at it is no 
 somewhat in the same way as a cor- doubt artificial, but may possibly 
 poration sole is represented by the be found to assist in the right corn- 
 person constituting it for the time prehension of the doctrine." Poll, 
 being. As a contract made by the Contr. 3rd ed. p. 91.
 
 378 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Remedy of 
 person claim- 
 ing decree in 
 respect of 
 property to 
 separate use. 
 
 When trus- 
 tees necessary 
 parties. 
 
 When hus- 
 band neces- 
 sary party. 
 
 to be a creditor of the wife. Such an explanation would 
 involve us in questions far beyond our scope. But we are 
 most interested in the form that remedy took, for the reason 
 that upon it was based the particular kind of execution 
 which was available. 
 
 When a person claimed to be a creditor of a married 
 woman, in the sense that he was entitled to be paid a sum 
 of money due to him out of estate settled to her separate 
 use, his method of proceeding was by suit in equity, asking 
 for a declaration that such estate was chargeable with the 
 sum claimed, and for discovery of what such estate con- 
 sisted. 
 
 Besides the married woman, the trustees were also 
 interested in the property which they held to her separate 
 use. Such trustees, therefore, were proper, and, in many 
 cases, necessary parties to the Buit(t'). If they were not 
 made parties, a general declaration of charge could be 
 obtained, which would of course affect the married woman 
 herself, and all claiming under her, but would be entirely 
 without prejudice to the rights of the trustees (k). The 
 husband was also a proper, and, in most cases, an essential 
 party to the suit(/) ; but the purpose of his being joined 
 was that a decision might be obtained, on the question, 
 whether the property alleged to be estate settled to the 
 separate use was or was not of that description (m). It 
 
 (i) They were essential in cases 
 where sufficient discovery of what 
 the estate consisted could not be 
 obtained without their presence. 
 Under the present practice they 
 should in all cases be made parties 
 whenever it is sought to make the 
 declaration of charge effectual, by 
 getting an order against them to 
 pay, such an order could not, of 
 course, be made against them in 
 their absence. Collett v. Dickenson, 
 11 Ch. D. 687. This is important in 
 connection with the statement that 
 
 where the order is made against 
 the wife only, she is not necessarily 
 guilty of a contempt in not ob- 
 serving it. Vide infra, p. 380. 
 
 (/<;) Form of order in Picard v. 
 Hine, 5 Ch. p. 278 ; Davies v. Jenkins, 
 6 Ch. D. 728 ; Collett v. DicTcenson, 
 11 Ch. D. 687 ; Ilower v. Buller, 16 
 Ch. D. 665 ; In re Peace $ Waller, 
 24 Ch. D. 405. 
 
 (T) Hancocks v. Lablache, 3 C. P. 
 D. 197 ; Atwood v. Chichester, 3 Q. 
 B. D. 722. 
 
 (>) Collett v. Dickenson, llCh. D.
 
 EXECUTION AGAINST MARRIED WOMEN. 379 
 
 was possible, therefore, to bring and pursue an action Chap. IV. 
 against the wife without joining the husband, e. g., in ' 
 
 cases where it was quite clear as against him, by admission 
 or otherwise, that the estate sought to be charged was 
 settled to her separate use. 
 
 Where the plaintiff substantiated his right to an order Form of 
 against the interest of the married woman, it took the form to "charge SU1 
 of a declaration of a general charge (n), and inquiries as to property "to^ 
 what the separate estate consisted of. It will be better to 
 set forth an ordinary form of this order in full : " Declare 
 that the separate estate of the defendant, M. T." (the 
 married icomaii) " which was on the day of 
 
 [or, which is now (0) ] vested in her, or in any other person 
 in trust for her, was chargeable with the payment of the 
 balance remaining due to the plaintiffs, as the holders of 
 the bill of exchange, for , in the pleadings mentioned, 
 for principal, interest, and expenses, as therein mentioned; 
 And let the said separate estate of the said defendant 
 stand charged with the payment to the plaintiff of such 
 balance accordingly. And let the following accounts, 
 &c. : 1. An account of what is due to the plaintiffs, as 
 holders of the said bill of exchange, for, &c. : 2. An in- 
 quiry of what the separate estate of the said M. T. con- 
 sisted on the said day of [and on the date of 
 this decree (0)], and in whom it was vested at that date (p), 
 
 687. And the plaintiff must pay separate property ; hence the form 
 
 his costs and add them to his debt. of the decree in the text. Pike v. 
 
 Ib. For a case where, although the Fitzgibbon, 17 Ch. D. 454. 
 question of separate use was raised, (o) This was doubtful at the date 
 
 the husband, claiming against the when this order was a usual prece- 
 
 separate use, was party to the ac- dent, notwithstanding it was the 
 
 tion, but his wife was not, Williams form of order adopted in Picard 
 
 v. Herder, 10 Ap. Ca. 1. v. Hine, 5 Ch. 274. See last note. 
 
 (n) Such a declaration was held See now sect. 1, sub-sect. (4) 
 
 only to bind such separate estate as, Married "Women's Property Act, 
 
 at the time of entering into the 1882. 
 
 engagement, she was entitled to. (p) This is a decree made in the 
 
 She could not bind after-acquired absence of the trustees.
 
 380 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 No personal 
 order against 
 the married 
 
 Execution on 
 decree was 
 equitable 
 execution. 
 
 A receiver. 
 
 and whether any and what disposition thereof, or dealing 
 therewith, by the said defendant M. T. has been made 
 since the aforesaid dates" (r). 
 
 The prominent feature in this and all other decrees or 
 orders against estate settled to the separate use, is that 
 there is no personal order against the married woman for 
 payment of the sum due. A most important consequence 
 of this, so far as we are concerned, is, that in case she does 
 not, out of the money she receives, pay over the sum due, 
 she is not liable for contempt. Under such a form of 
 order, therefore, the remedies to which we have referred in 
 Book II., supra, whose essence is, that the person against 
 whom they are used should be in contempt, are not avail- 
 able. It is clear, also, that to enforce the order no writ of 
 fi. fa. or elegit could issue against the property subject to 
 it. These writs apply only to legal property, and of this, 
 at the period to which we are referring, she could have 
 none(s). 
 
 The proper process for enforcing a decree or order charg- 
 ing estate settled to the separate use was, and, where such 
 order is the appropriate remedy, is, by way of equitable 
 execution. Before the coming into operation of the Judi- 
 cature Acts, proceedings would have had to be taken under 
 the decree for putting in force the charge given by it. 
 Since the Acts, a receiver may be, and usually is, at once 
 appointed, who intercepts what would otherwise be coming 
 to the married woman from the trustees (t}. The order 
 should itself provide for the appointment of a receiver, but 
 
 (r) Seton on Decrees, 689 ; Picard 
 v. Hine, L. R. 5 Ch. 274 ; Pike v. 
 Fitzyibbon, 14 Ch. D. 837. As has 
 been mentioned in a former note, 
 note (i), p. 378, supra, where the 
 trustees are parties to the action, 
 the decree may take a form direct- 
 ing them to pay over to the creditor. 
 
 (*) The statement here is, perhaps, 
 not wholly correct, for in a simple 
 
 case of land settled to the wife's 
 separate use, it might be that an 
 elegit would be issuable. Her in- 
 terest might be said to fall within 
 the terms of the 10th section of the 
 Statute of Frauds, and sect. 11 of 
 1 & 2 Viet. c. 112. 
 
 (t) Re Peace % Waller, 24 Ch. D. 
 405.
 
 EXECUTION AGAINST MARRIED WOMEN. 381 
 
 if it does not the appointment may be made subsequently Chap. rv. 
 on motion or summons, and, it is submitted, ex parte. 
 
 The legislation which is discussed in the two remaining HOW Married 
 sections of this chapter only indirectly affects the position ^"ert^Acts 
 of a married woman with respect to property settled to her affect pro- 
 separate use. She still continues to have an equitable separate use. 
 interest only in such property ; and an order in the form 
 we have set forth, though not, perhaps, usual, is still 
 available to charge it. "Where, therefore, the claim of the 
 creditor is against property of the wife which is hers by 
 virtue of a settlement under which there are trustees, or 
 which is hers under any arrangement whereby she has not 
 the legal estate, an action claiming a declaration and 
 inquiries to the effect above mentioned would lie. The 
 advisability of pursuing this course will appear from the 
 discussion in sect. 3, infra. The execution following upon 
 the order is equitable execution. 
 
 Our very slight sketch in this section of the mode in Summary of 
 which property settled to the separate use was, and may 8< 
 still be, rendered available, will have attained its end if we 
 have made clear two leading points : 
 
 (a) That a wife was not, and is not now, under the 
 
 usual form of order charging property settled to 
 the separate use, personally liable, so far as pay- 
 ment is concerned, to perform the order; the 
 remedy has always been against that property, 
 and not against her ; 
 
 (b) And that the particular method of execution 
 
 employed upon such an order was, and is, the 
 equitable method of a receiver, and, where neces- 
 sary, a distinct proceeding or action.
 
 382 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 General effect 
 of Married 
 Women's 
 Property Act, 
 1870. 
 
 Effect of Act 
 on wife's 
 liability. 
 
 Effect of Act 
 on husband's 
 liability for 
 ante-nuptial 
 matters. 
 
 SECT. 2. THE LAW RELATING TO EXECUTION AGAINST 
 MARRIED WOMEN AND THEIR PROPERTY ON AND 
 AFTER THE 0TH AUGUST, 1870, AND PRIOR TO 1ST 
 JANUARY, 1883. 
 
 By the Married Women's Property Act, 1870 (u), a 
 considerable extension was made of the rights of married 
 women. Her " wages and earnings " (and a wide signi- 
 fication was given to the term), acquired or gained by her 
 after the passing of the Act, were constituted property 
 held and settled to her separate use (x). 
 
 She was further empowered to hold many kinds of pro- 
 perty, deposits in savings' banks, stock in the funds, shares 
 in joint stock companies, and in friendly or benefit societies, 
 apart from her husband. 
 
 And, with reference to any woman marrying after the 
 passing of the Act, personal property to which, during the 
 marriage, she might become entitled as next of kin, or 
 one of the next of kin, of an intestate, or any sum of money 
 not exceeding two hundred pounds, under any deed or 
 will (y), and any freehold or customaryhold property 
 descending upon her (z), were also constituted property to 
 belong to her for her separate use. 
 
 There was nothing in the Act which rendered the per- 
 sonal liability of the wife different from what it had been 
 before its passing. Of course, the greater facilities which 
 were given her of acquiring property of her own rendered 
 executions against it much more frequent, and the subject, 
 therefore, more important. 
 
 This statute completely abolished the liability of a hus- 
 band, marrying after the date of the Act, for the ante- 
 nuptial debts of his wife ; but, as we have seen, this liability 
 was, to some extent, resuscitated by the Married Women's 
 Property Act of 1874 (a). We have already referred to 
 
 () 33 & 34 Viet. c. 93. 
 
 {*) 33 & 34 Viet. c. 93, s. 1. 
 
 (y) Sect. 7. 
 
 (z) Sect. 8. 
 
 (a) 37 & 38 Viet. c. 50.
 
 EXECUTION AGAINST MARRIED WOMEN. 383 
 
 the extent of that liability, but it remains to mention that Chap. IV. 
 by the 4th section " "When a husband and wife are sued 
 
 jointly, if, by confession or otherwise, it appears that Effect on this, 
 the husband is liable for the debt or damages recovered, or 1874. 
 any part thereof, the judgment, to the extent of the amount 
 for which the husband is liable, shall be a joint judgment 
 against the husband and wife, and as to the residue, if any, 
 of such debt or damages, the judgment shall be a separate 
 judgment against the wife." 
 
 The short effect with reference to execution of the legis- Sh rt effect of 
 lation of 1870 and 1874, may be said to have been, that 1370 and 
 it created a limited capacity of trading in the wife, and 1874> 
 rendered available for her general engagements many kinds 
 of property which before had belonged absolutely to the 
 husband. The form of judgment against her was not 
 altered by the Act; it remained merely a declaration of 
 charge against the property to her separate use (b). 
 
 SECT. 3. THE LAW RELATING TO EXECUTION AGAINST 
 MARRIED WOMEN AND THEIR PROPERTY AFTER 31sT 
 DECEMBER, 1882. 
 
 By the Married Women's Property Act, 1882 (c) , an entire Effect of 
 
 i_ . J ru * * J Married 
 
 change was made in the status 01 a married woman so far Women's 
 as concerns both her legal and equitable capacity to own ^gg^ erty Act> 
 property, and her rights and duties incidental thereto. 
 This directly affects our subject, and it has been thought 
 advisable to reproduce the sections of the Act necessary to 
 its explanation. 
 
 By sect. 1, sub-sect. (1) of the Act, "A married woman Sect, i, 
 
 sub-sect, fl) 
 shall, in accordance with the provisions of this Act, be capacity 
 
 capable of acquiring, holding, and disposing by will or 
 
 otherwise, of any real or personal property, in the same woman to 
 
 own property. 
 
 (b) Durrani v. RicMts, 8 Q. B. D. (c) 45 & 46 Viet. c. 75. The Act 
 
 177. repealed the two former enactments 
 
 above referred to. Sect. 22.
 
 384 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Effect of sub- 
 section on 
 property then 
 existing. 
 
 Effect of sub- 
 section on 
 subsequently- 
 acquired pro- 
 perty. 
 
 manner as if she were a, feme sole, without the intervention 
 of any trustee." 
 
 This sub-section, creating as it does in a married woman 
 a new capacity altogether, has most important effects upon 
 the particular kind of execution which is available against 
 her property. 
 
 In the first place, the sub-section is an enabling one. 
 It is submitted that according to its clear construction it 
 has no effect upon the status quo of property existing at 
 the date of the coming into operation of the Act. Where, 
 therefore, property was then settled to the separate use of 
 the married woman, it still remained so after the Act was 
 passed. The legal estate continued in the trustees, or, if 
 there were no trustees specially appointed, in the husband 
 as sole trustee for her(c?). The same was the case, of 
 course, in respect of personal property, whether consisting 
 of leaseholds, goods and chattels, or stock (e). 
 
 With respect to all property acquired by any married 
 woman after the Act, or belonging to any woman married 
 after the Act, it becomes or remains hers as if she were a 
 feme sole (/). The effect (if any) of this enactment upon 
 her relationship to property settled to her separate use 
 where trustees are appointed, has not been discussed, but it 
 is clear that where there are no such trustees, the whole 
 interest in such property, both legal and equitable, is vested 
 in her (g). With this slight explanation of the effect of 
 
 (d) Sennet v. Davis, 2 P. Wins. 
 316. 
 
 (e) Newlands v. Paynter, 10 Sim. 
 377. 
 
 (/) This must be taken with the 
 explanation afforded by sect. 5 of 
 the Act, whereby "Every woman 
 married before the commencement of 
 this Act shall be entitled to have 
 and to hold and to dispose of in 
 manner aforesaid, as her separate 
 property, all real and personal pro- 
 perty, her title to which, whether 
 
 vested or contingent, and whether 
 in possession, reversion or remain- 
 der, .shall accrue after the com- 
 mencement of this Act, including 
 any wages, earnings, money and 
 property so gained or acquired by 
 her as aforesaid." As to this, see 
 Baynton v. Collins, 27 Ch. D. 604 ; 
 Me Thompson $ Curzon, 29 Ch. D. 
 177. 
 
 (g) It is submitted that the 
 words in the sub-section, "as her 
 separate property," have a mean-
 
 EXECUTION AGAINST MARRIED WOMEN. 385 
 
 the Act upon property, we shall, after understanding the Chap. iv. 
 manner in which judgments and orders are made against 
 
 married women under it, be in a position to explain the 
 effect upon the law and practice of execution. 
 
 By sect. 1, sub-sect. (2), "A married woman shall be Sect - J 8ub ' 
 capable of entering into and rendering herself liable in capacity and 
 respect of, and to the extent of, her separate property on ^rried f 
 any contract (A), and of suing and being sued either in women as to 
 
 , , , , ,-, ..,, [ i contracts and 
 
 contract or in tort, or otherwise, in all respects as if she t0 rts. 
 were a, feme sole, and her husband need not be joined with 
 her as plaintiff or defendant, or be made a party to any 
 action or other legal proceeding brought by or taken 
 against her, and any damages or costs recovered by her in 
 any such action or proceeding shall be her separate pro- 
 perty ; and any damages or costs recovered against her in 
 any such action or proceeding shall be payable out of her 
 separate property, and not otherwise." 
 
 It may assist in the comprehension of this enactment if Position of 
 we attempt to ascertain the position of a husband in respect underpins 11 
 to it. This section does not add in any way to his liability ; sub-section. 
 there is nothing in it which gives new or additional remedies 
 against him. It does not decrease or affect his liability 
 with respect to contracts entered into during the coverture. 
 Those contracts upon which he could have been sued at 
 law he can still be sued upon, irrespective of and notwith- 
 standing the Act. For example, his liability for necessaries 
 supplied to his wife remains the same. His position with 
 reference to actions for torts of his wife committed during 
 coverture is different. The Act does not abolish his lia- 
 bility for such torts, and he can still be sued jointly with 
 
 ing distinct from "property settled to the true construction of the Acb, 
 
 to her separate use." The words the contract which is to bind sepa- 
 
 " separate property" do not in- rate property must be entered into 
 
 elude a power of appointment. Ex at a time when the married woman 
 
 parte Gikhrist, Re Armstrong, 17 Q. has existing separate property." 
 
 B. D. 521. Pearson, J., Re Shakespear, 30 Ch. 
 
 (h) "In my opinion, according D. p. 171. 
 E. C C
 
 386 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 The judgment 
 signed against 
 the married 
 
 Form. 
 
 Effect of this 
 judgment as 
 to execution 
 on it. 
 
 his wife for them (i) ; but the wife can also, under this sub- 
 section, sue or be sued alone, without his being joined with 
 her as plaintiff or defendant (k). This explanation, coupled 
 with what has been already stated on the subject of his 
 liability, will, it is submitted, make his position clear. 
 
 The judgment which can be signed against the married 
 woman in pursuance of the sub-section is not an ordinary 
 judgment. Nor has it only the effect which a decree in 
 equity had in declaring a charge over the property settled 
 to her separate use. It has been suggested by the Court 
 of Appeal in a recent case that the form of judgment 
 against a married woman under s. 1 (2) of the Act should 
 be as follows : 
 
 "It is adjudged that the plaintiff do recover 
 and costs [to be taxed] against the defendant [the married 
 woman], such sum and costs to be payable out of her 
 separate property as hereinafter mentioned, and not other- 
 And it is ordered that execution hereon be limited 
 
 wise. 
 
 to the separate property of the defendant [the married 
 woman] not subject to any restriction against anticipation, 
 unless by reason of s. 19 of the Married Women's Property 
 Act, 1882, the property shall be liable to execution not- 
 withstanding such restriction " (/). 
 
 In all ordinary cases, at all events, this form of judg- 
 ment is available ; but it needs hardly to be said, that it is 
 not the only form which an order can take for payment 
 either against a married woman or her property (m). The 
 effect of this judgment may be expressed shortly in the 
 words of Lord Esher, M.R. : " The damages recoverable 
 
 () Serokav. Kattenburg, 17 Q. B. 
 D. 177. The Act " does not affect 
 the case of a -wrongful act com- 
 mitted by a woman during mar- 
 riage." Brett, 3.,in.Scottv.Morley, 
 20 Q. B. D. p. 125. See Macq. 
 Husb. & W. 3rd ed. p. 92. The 
 concluding words of the section 
 " and not otherwise " relate only 
 
 to cases of judgments recovered 
 against the married woman alone. 
 
 (k) Weldon v. Winskw, 13 Q. B. 
 D. 784. 
 
 (I) Scott v. Morley, 20 Q. B. D. 
 120. See Perks v. Mylrea, "W. N. 
 1884, 64; Bursill v. Tanner, 13 Q. 
 B. D. 691. 
 
 (m) Vide infra, p. 387 et seq.
 
 EXECUTION AGAINST MARRIED WOMEN. 387 
 
 are not to be payable by the married woman, they are to Chap. rv. 
 
 be payable out of her separate property" (). Upon this _ -- _ 
 
 judgment all the usual methods of execution can be taken. 
 
 Where separate property is hers without the intervention of 
 
 a trustee, she has the legal estate or interest, and the ordinary % 
 
 writs of fi. fa. and elegit are as available as if she were un- 
 
 married. But where a trustee intervenes, equitable methods 
 
 of execution must be resorted to. The practitioner should, 
 
 therefore, always ascertain the nature of the property which 
 
 the married woman has, and by that be guided as to the 
 
 form of the execution he issues. Although this judgment 
 
 is specially stated to be appropriate to cases under s. 1, 
 
 sub-s. (2), of the Act, it is submitted that it has, with 
 
 reference to property_settled to the separate use, practically 
 
 the same effect as the old decree or order declaring a charge. 
 
 The same methods of execution with respect to such pro- 
 
 perty would appear to be available under both forms. 
 
 By s. 1, sub-s. (4), "Every contract entered into by a Subsequently- 
 married woman, with respect to and to bind her separate separate pro- 
 property, shall bind not only the separate property which perty liable 
 she is possessed of or entitled to at the date of the contract, 
 but also all separate property which she may thereafter 
 acquire." 
 
 It is clear, therefore, that all separate property un- Is separate 
 restrained from anticipation which a married woman has 
 
 at the date of the -judgment is available to satisfy it (o). judgment 
 TL i_ -L i.' j -u xu iT- -u V ^able under 
 
 It may, perhaps, be questioned whether property which she it ? 
 
 acquires after the date of the judgment is so available (p). 
 The declaration of charge contained in a decree made 
 before the Act bound only such property as then was 
 found by the inquiries to be settled to the wife's separate 
 
 () And, therefore, a married (o) Field, J., in Bursill v. Tan- 
 
 woman cannot te committed to ner, 13 Q. B. D. 691 ; Re Shake- 
 
 prison under sect. 5, Debtors Act, spear, 30 Ch. D. 169. 
 
 1869. Scott v. Morley, 20 Q. B. D. (p) So far as the minute of the 
 
 120, deciding the doubt expressed order goes in Conolan v. Let/land, 27 
 
 in Meager v. Pellew, 14 Q. B. D. Ch. D. 632, it appears to be in 
 
 973. favour of its being available. 
 
 C C2
 
 388 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Sect. 19. 
 Restraint on 
 anticipation. 
 
 Liability of 
 husband for 
 ante-nuptial 
 contracts and 
 torts. 
 
 use. From the nature of the case it was impossible that 
 after-acquired property should under such an order he 
 charged, apart altogether from the principle as to general 
 engagements, to which we have referred in a former note (<?) . 
 If, now, separate property acquired after the date of the 
 judgment were subject to execution, it would seem to 
 follow that the judgment, when it is made, has a personal 
 effect beyond binding her separate property. It is sub- 
 mitted that after judgment sub-s. (4), above quoted, has no 
 application, for the reason that the contract is by the 
 judgment merged and gone. 
 
 The Act expressly provides that its enactments shall not 
 interfere with any settlement existing at the date of its 
 passing or subsequently made, so that it is still possible to 
 settle property to the separate use of a married woman, 
 and to restrain her anticipating it. No such restriction, 
 if imposed by settlement on her own property, is good 
 against prior creditors (r). 
 
 The restraint on anticipation prevents, except in the 
 case last mentioned, any creditor from taking in execution 
 the property settled ; for if he could so take it, a judgment 
 would be an anticipation (s). The form of judgment 
 given above is on this point clearly expressed, and needs 
 no explanation. 
 
 Special provision is by the Act made regulating the 
 liability of a husband for the ante-nuptial contracts and 
 torts of his wife. It appears to follow from the language 
 of sect. 1, sub-sect. (2), that a married woman can be sued 
 alone, and without her husband being joined, in respect 
 even of ante-nuptial matters. At the same time it is in 
 the option of the creditor or person injured to sue both 
 husband and wife. When the creditor or person injured 
 takes that course, the effect of his so doing is stated in 
 sects. 14 and 15 of the Act. 
 
 (q) Vide supra, p. 379 et seq, 
 (r) Sect. 19. 
 
 (*) See judgment of James, L. J., 
 in Pike v. Fitzgibbon, 17 Ch. D. 
 p. 459.
 
 EXECUTION AGAINST MARRIED WOMEN. 389 
 
 By sect. 14, "A husband shall be liable for the debts of Chap. IV. 
 his wife contracted, and for all contracts entered into and Sec ' 8 ~ 
 wrongs committed by her, before marriage, including any Sect. 14. 
 liabilities to which she may be so subject under the Acts 
 relating to joint stock companies as aforesaid, to the extent 
 of all property whatsoever belonging to his wife which he 
 shall have acquired or become entitled to from or through 
 his wife, after deducting therefrom any payments made 
 by him, and any sums for which judgment may have been 
 bond fide recovered against him in any proceeding at law, 
 in respect of any such debts, contracts, or wrongs for or in 
 respect of which his wife was liable before her marriage as 
 aforesaid, but he shall not be liable for the same any 
 further or otherwise (t) ; and any Court in which a 
 husband shall be sued for such debt shall have power to 
 direct any inquiry or proceedings which it may think 
 proper for the purpose of ascertaining the nature, amount, 
 or value of such property : provided always, that nothing 
 in this Act contained shall operate to increase or diminish 
 the liability of any husband married before the commence- 
 ment of this Act for or in respect of any such debt or 
 other liability of his wife as aforesaid." 
 
 By sect. 15, " A husband and wife may be jointly sued Mode of 
 in respect of any such debt or other liability (whether husband and 
 by contract or for any wrong), contracted or incurred by T^ 6 ' and 
 the wife before marriage as aforesaid, if the plaintiff in the judgment, 
 action shall seek to establish his claim, whether wholly or 
 in part, against both of them ; and if in any such action, 
 or in any action brought in respect of any such debt or 
 liability against the husband alone, it is not found that 
 the husband is liable in respect of any property of the 
 wife so acquired by him, or to which he shall have become 
 so entitled as aforesaid, he shall have judgment for his 
 costs of defence, whatever may be the result of the action 
 against the wife, if jointly sued with him ; and in any 
 
 (t) The comparison between the drawn in a former note ( (/(), p. 377, 
 separate estate and a corporation supra], is well illustrated by the 
 sole, to which attention has been terms of this section.
 
 390 
 
 EQUITABLE AND STATUTORY METHODS OF EXECUTION. 
 
 Book III. 
 
 Effect of two 
 last sections. 
 
 Liability of 
 married 
 woman trus- 
 tee. 
 
 Sect. 24. 
 
 such action against husband and wife jointly, if it appears 
 that the husband is liable for the debt or damages re- 
 covered, or any part thereof, the judgment, to the extent 
 of the amount for which the husband is liable, shall be a 
 joint judgment against the husband personally and 
 against the wife as to her separate property; and as to 
 the residue, if any, of such debt and damages, the 
 judgment shall be a separate judgment against the wife 
 as to her separate property only." 
 
 This last section clearly indicates the form which the 
 judgment is to take in cases where it is signed against the 
 husband and wife jointly. As to the husband, it is to be 
 an ordinary judgment for the amount for which he is 
 found to be liable; and as to the wife, it is to be in the 
 form already given. Execution upon such a judgment, it 
 is submitted, presents no difficulty. The writ of fi. fa. or 
 elegit, when available, must be issued jointly against both, 
 in order to comply with the judgment. Where equitable 
 execution is sought, the order appointing the receiver 
 must be precise as to the amount to be taken from the 
 property, in respect of which he is appointed, according as 
 it belongs to the husband or the wife. 
 
 It remains to mention that the Act has further altered 
 the law relating to a married woman's position when she 
 is a trustee. 
 
 By sect. 24, " The word ' contract ' in the Act shall in- 
 clude the acceptance of any trust, or of the office of execu- 
 trix or administratrix ; and the provisions of this Act as 
 to liabilities of married women shall extend to all lia- 
 bilities by reason of any breach of trust or devastavit 
 committed by any married woman, being a trustee or exe- 
 cutrix or administratrix, either before or after her marriage, 
 and her husband shall not be subject to such liabilities 
 unless he has acted or intermeddled in the trust or adminis- 
 tration" (u). 
 
 () A husband, therefore, now 
 incurs no responsibility by reason 
 of his wife accepting the office of 
 
 administratrix. In the goods of 
 Harriet Ayres, 8 P. D. 168.
 
 EXECUTION AGAINST MARRIED WOMEN. 391 
 
 Where a married woman acts in a fiduciary capacity, Chap. IV. 
 her liability would appear to be limited by this section to 
 
 the extent of her separate property. There are no decisions Eff f. ct of 
 * . r r J section. 
 
 to indicate the full meaning of the enactment, and our few 
 remarks on this part of the subject are made with diffidence. 
 
 We have seen that the order against a defaulting trustee Order obtain- 
 is a personal order, of which disobedience is a contempt, married" 11 
 and (historically at all events) the primary remedy is by w man frus- 
 attachment to answer that contempt (x). 
 
 The proper order against a married woman who is a de- 
 faulting trustee would, therefore, appear to be a personal 
 order. Her liability for her contempt seems to be limited 
 "to the extent of her separate property" (y), so that, how- 
 ever fraudulent she may have been in the trust, the Court 
 has no power to imprison her for her contempt of the order 
 made against her, when her separate estate has been ex- 
 hausted. This raises the question, whether the remedy by Is attachment 
 attachment is practically available at all against a married against her? 
 woman ; for, on the application for leave to issue the writ, 
 the Court would have to be satisfied that there was separate 
 property in existence, and, the fact being once before it, 
 would seize upon that property instead of attaching her to 
 serve no useful purpose. 
 
 The same reasoning does not, of course, extend to cases Different as to 
 of "special contempt," other than payment of money, tempt!" 
 In such cases there seems to be no limit, as we have seen, 
 to the Court's power of punishment of any person. Per- 
 sonal incapacity has nothing to do with the matter. The Sequestration, 
 writ of sequestration would appear to be available to seize 
 and appropriate the separate property, but that property 
 only. 
 
 (x) Vide supra, Book II., Chapter I. (y) Sect. 1, sub-sect. (2).
 
 ( 393 ) 
 
 APPENDIX I. 
 
 No. 1. Demand for Performance of Conditional Judgment. See supra, 
 
 0. XLII. r. 9, 
 [Heading of Action.'] p. 23. 
 
 Take notice that [here state the condition of the judgment or order 
 which has been performed or happened], and that the above-named 
 plaintiff is entitled to the relief named in the said judgment (a copy 
 whereof is hereunto annexed). I, therefore, [as solicitor for] the 
 above-named plaintiff, hereby demand of you that you do [state the 
 act or thing required to be done by the judgment or order]. And further 
 take notice that if you do not forthwith comply with the said judg- 
 ment [or order], I shall apply for leave to issue execution thereon. 
 
 Yours, &c., 
 
 A. B., the above-named plaintiff, 
 or X. Y., solicitor, &c. 
 To the above-named defendant, C. D. (a). 
 
 No. 2. Summons for Leave under O. XLII., r. 9 (b). Supra, 
 
 O. XLII. r. 9, 
 
 [Formal parts as usual.] p. 23 et seq. 
 
 for an order that the plaintiff be at liberty to issue execution [or a 
 writ of fieri facias, as the case may be (c)] against the defendant on 
 the judgment [or order] herein dated the day of 18 , 
 
 and that the plaintiff do pay the costs of and occasioned by this 
 application. 
 
 (a) There is no rule requiring ledge of the defaulting party, 
 personal service of this notice. It (b) A summons should be issued 
 
 would appear from the analogy of in all cases where leave is neces- 
 
 a notice of motion that personal sary, even when the application is 
 
 service is not strictly necessary. ex parte, for the reason that the 
 
 No doubt, however, before an order reason for execution issuing should 
 
 would be made, the Court or judge appear upon the record, 
 would require to be satisfied that (c) See, however, terms of 0. LII. 
 
 the demand had come to the know- r. 14, and note toFormNo. 5, infra.
 
 394 
 
 APPENDIX T. 
 
 O. XLII. 
 
 r. 23 (a), 
 supra, p. 24. 
 As to evidence 
 and proce- 
 dure, p. 22. 
 As to change 
 of parties 
 
 generally, 
 h. I. s. 3. 
 
 Notes to 
 O. XLII. 
 r. 23 (a), and 
 reference, 
 supra. 
 O. XLII. 
 r. 10. 
 
 As to execu- 
 tion against 
 member of 
 firm, supra, 
 p. 27 et seq. 
 
 O. XLII. 
 rr. 22, 23 (a), 
 supra, pp. 24, 
 44, 45. 
 
 No. 3. Summons and Notice of Motion for Leave on Change of 
 
 Parties. 
 
 [Title, (fee.] 
 
 Take notice that the Court will be moved, &c., on behalf of [here 
 name and describe person applying for leave.] [If the application be 
 made by summons] : Let all parties appear before ine, at, &c., on the 
 hearing of an application by [describe person as above, then follow on, 
 both in case of summons and notice of motion] for an order that the 
 said [name of person applying for leave] be at liberty to issue execution 
 against the said on the judgment obtained in this action, and 
 
 dated the day of 18 . 
 
 [When the application is for leave on the change of the party against 
 tvhom execution is issuable, the above form should be varied by inserting 
 " plaintiff" in the place of " person applying for leave," and follow 
 on], be at liberty to issue execution against X. Y. [insert name and 
 description], as the heir [or husband, or member of the firm of Z. & 
 Co., or as the case may be], &c. (d). 
 
 No. 4. Notice of Motion or Summons for Leave after Lapse of 
 Six Years. 
 
 [Formal parts as usual.] 
 
 Take notice that, &c. [or, Let all parties attend before me, &c.]. 
 
 (See Form No. 3.) 
 
 for an order that the plaintiff be at liberty to issue execution against 
 the defendant on a judgment herein dated the day of 
 
 18 , notwithstanding six years have elapsed since such judgment. 
 
 This form, 
 varied to meet 
 the circum- 
 stances of the 
 particular 
 case, applies 
 wherever 
 leave to issue 
 has been 
 obtained. 
 
 No. 5. Form of Order giving Leave to issue Execution. 
 
 [Heading. ] 
 
 Upon the application of, &c. [or, Upon motion, &c.], and upon 
 reading, &c., whereby it appears that [set forth the material facts 
 entitling the party to issue execution], And upon the direction of [his 
 Lordship, Mr. Justice , or, the Court, as the case may be], that 
 
 (d) The summons must of course 
 be varied where it is desired to 
 
 obtain an order in the form of No. 6, 
 infra.
 
 FORMS. 395 
 
 this order should be drawn up (e}. Let the said , as executor See p. 24, and 
 
 of the said plaintiff [or as the case may be], be at liberty to issue exe- generally, 
 
 cution upon the judgment [or order] in this matter dated the sub'-s! ii. v. 
 day of 
 
 No. 6. Form of Order to carry on Proceedings, and for Leave to This form of 
 
 ivtuf Frpciitinn order can be 
 
 e execution. made where 
 
 [Heading.-] the Segment 
 
 or order on 
 
 Upon the application of, &c. [or, Upon motion &c.], and upon which it is 
 reading, &c., whereby it appears that it has become necessary or . ' 
 desirable that should be made a party to this action in the tiun is not 
 
 place and stead of the former [plaintiff or defendant (as the fin Utium^ 
 
 case may be}], and that [set forth material facts shoiviny why execic- , something 
 tion should issue at the suit of or against any of the parties. Let the to be done, 
 further proceedings in this matter be carried on by the said Supra, Oh. I. 
 
 the personal representative of the late [or as the case may be], " oJfiO 53 
 
 as plaintiff against the said as defendant [describing the capa- 54. 
 
 city in which he is joined if the defendant is the party changed]. 
 And let the said be at liberty to issue execution against the 
 
 said upon the judgment [or order] in this matter dated the 
 day of 
 
 No. 7. Notice of Motion for Leave to issue Execution against o. XLII. 
 
 Shareholder under 8 & 9 Viet. c. 16, s. 36 (/). r - 23 ( d )> 
 
 supra, pp. 24, 
 
 [Heading of Action.] 26 et seq. 
 
 Whereas by a judgment [or order] of the High Court of Justice 
 made in this action and dated the day of 188 , it was Chit. Forms 
 
 adjudged [or ordered] that the above-named plaintiff A. B., should P- 521, n. (r). 
 recover against the above-named defendants the B. Company, being 
 a company duly incorporated, and to which the provisions of the 
 statute 8 & 9 Viet. c. 16 apply, the sums of and for 
 
 (e) The direction from the Court mentions leave to issue any writ 
 
 or judge as to the drawing up is, other than, &c., not leave to issue 
 
 perhaps, essential in the case of execution generally. 
 
 such an order as this with no (/) This notice must be served 
 
 special terms. O. LII. r. 14, personally (see Ch. Arch. 1073 
 
 supra, p. 23. The doubt here et seq.} upon the shareholder. The 
 
 expressed is for the reason that company have no locus standi to 
 
 this rule 14 in this connection appear.
 
 396 APPENDIX I. 
 
 costs [state the amounts as in the judgment or order}. And whereas 
 execution has been issued against the property and effects of the 
 said B. Company, but there cannot be found sufficient whereon to 
 levy such execution, so that the said judgment remains unsatisfied 
 [or, if partially levied, state extent to ivhich it is unsatisfied]. And 
 whereas you are a holder of shares in the capital of the said 
 
 company in respect of which said shares the sum of has not 
 
 been paid up to the said company. Now take notice that this 
 Honourable Court will be moved before his Lordship Mr. Justice 
 on the day of 188 , or so soon thereafter as counsel 
 
 can be heard by counsel on behalf of the above-named plaintiff for 
 liberty to issue execution against you upon the said judgment [or 
 order] to the extent of the said sum of being the amount of 
 
 capital so as aforesaid remaining to be paid upon the said shares 
 held by you as aforesaid [but ivhere the sum due from the shareholder 
 is greater than that due to the creditor, for levying against you the 
 amount of the said judgment, viz., the said sums of and 
 
 for costs]. And for an order that the costs of this applica- 
 
 tion be paid out of the said sum of so due from you as 
 
 aforesaid. 
 Dated 
 
 Solicitor for the plaintiff. 
 
 Irregularity. No. 8. Notice of Motion or Summons to amend irregular 
 Supra, p. 38. Execution. 
 
 [Heading.] 
 Take notice 
 
 or [ [Formal parts as usual.] 
 
 Let all parties 
 
 for an order that the plaintiff [or defendant] be at liberty to amend 
 the writ of fieri facias [or as the case may be, describing the particular 
 ivrit] issued by him in this matter and dated the day of 
 
 18 , by [liere state particular amendment asked]. And that he 
 
 do pay the costs of the said amendment and of this application (</). 
 
 Dated, &c. 
 
 (ff) It is necessary to issue this writ. "Where no step has been 
 notice or summons when some step taken the application may be ex 
 has been taken under the irregular parte.
 
 FORMS. 397 
 
 No. 9. Summons to stay Execution. 0. XLII. 
 
 rr. 17, 27, 
 
 [Heading.] *!'<*, P- 39 - 
 
 Take notice \ 
 
 or > [Formal parts as usual.'] 
 
 Let all parties ' 
 
 for an order that execution on the judgment [or order] herein dated 
 the day of 18 , be stayed. 
 
 [The summons or order may take the form of restraining the party 
 about to issue, and may be varied as to time, &c., to fit the circum- 
 stances of the case -for example], for an order that the plaintiff be 
 restrained from issuing execution upon, &c., until [he has per- 
 formed some condition, or the like']. 
 
 [_0r, for example] for an order that the time limited by the 
 
 judgment [or order] dated, &c., for the applicant to [describe act to 
 
 be done according to the judgment or order] may be enlarged to the 
 
 day of 18 , and that in the meantime execution may 
 
 be stayed. 
 
 No. 10. Notice of Motion or Summons to stay Execution on 
 
 f . . . . j , , , 7 , , r. 27, supra, 
 
 jacts arising too late to be pleaded. p> ^ 
 
 Take notice 
 
 or > [Formal parts as usual.] 
 
 Let all parties J 
 
 on the part of the defendant [or as the case may be] that execution 
 upon the judgment in this action dated the day of 188 , 
 
 and all other proceedings in this action, may be stayed on the ground 
 that [state facts whieh have arisen too late to be pleaded by the applicant 
 rendering it just that execution and the action should be stayed] (A). 
 
 (h) This form of order is in use where an auditii querela would have 
 lain.
 
 398 
 
 APPENDIX I. 
 
 Chad wick 
 Healey, Com- 
 pany Law and 
 Practice, 
 2nded. p. 528. 
 Vide supra, 
 p. 41. 
 
 No. 11. Notice of Motion or Summons to stay Execution pend- 
 ing the Hearing of Petition to wind up a Company, 
 
 [Heading of the Action.~\ 
 
 Take notice \ 
 
 or } [Formal parts as usual.~] 
 
 Let all parties ' 
 
 on the part of the defendant company [or, the provisional liqui- 
 dator, or, A. B., the petitioner for the winding up of the said 
 company] for an order that the plaintiff may be restrained from 
 issuing execution on any judgment to be obtained by him in this 
 action [or, that the sheriff of may be restrained from remov- 
 
 ing or selling any goods of the defendant company seized or to be 
 seized by him under the writ of execution issued on the judgment 
 [or order] obtained in this action, and dated, &c.] until the hear- 
 ing of a petition [or, the petition of the said A. B.] presented to 
 this Court for the winding up of the said company, or until 
 further order (t). 
 
 Vide supra, 
 p. 41. 
 
 No. 12. Notice of Motion or Summons to stay Execution 
 against Company after Winding-up Order has been made. 
 
 [Heading in the Action.'] 
 [Formal parts as usual."] 
 
 Take notice 
 or 
 
 Let all parties 
 
 on the part of the official liquidator of the above-named company 
 that A. B., of, &c. [or, the plaintiff], may be restrained from issu- 
 ing execution on the judgment [or order] obtained by him in this 
 action [or, if the sheriff has already seized, that the sheriff of 
 may be ordered to withdraw forthwith from the premises of the 
 said company entered upon, and from possession of their goods 
 seized by, him under and in pursuance of a certain writ of fi. fa. 
 directed to him, and issued under a judgment obtained by A. B. 
 [or the plaintiff] against the said company.] 
 
 (i] The application for the stay 
 is made to the Division in which, 
 or in the Chancery Division to the 
 
 judge before whom, the judgmentor 
 order was obtained. In re Artistic 
 Colour Printing Co., 14 Ch. D. 502.
 
 FORMS. 399 
 
 No. 13. Notice of Motion or Summons to stay Execution pend- - LVIII. 
 
 ing Appeal. 7upra' p. 42. 
 
 Dan. Ch. 
 
 FormS) p . 366> 
 Take notice No. 915. 
 
 or f [.ZfyrwaZ parts as usual.'] 
 
 Let all parties ' 
 
 on the part of the defendant C. D. [or as the case may le~] that execu- 
 tion and all other proceedings under the judgment [or order] in this 
 action dated the day of 18 , may be stayed until 
 
 after the hearing of the said defendant's motion by way of appeal 
 from the said judgment [or order] of which notice was served on 
 the day of 18 . 
 
 No. 14. Order staying Execution pending Appeal (K], Special 
 
 grounds being 
 
 [Heading.! 8 p howil > 
 
 Supra, p. 42. 
 
 Upon motion, &c., it is ordered that the plaintiff [or defendant, 
 or whoever the appellant may be~\ do within days from the date 
 
 hereof, and on security being given him for the return of the sum, 
 if successful in his appeal, pay to the defendant [or plaintiff, or 
 whoever the respondent may 'be'] the sum of found by the judg- 
 ment [or order] herein dated, &c. [the judgment or order appealed 
 from], to be due, or if no such security be given, then that the 
 plaintiff [or defendant (appellant}] do within days from the 
 
 date hereof pay into Court to the credit, &c. And it is ordered 
 that on either of such payments being made, all proceedings to 
 enforce the judgment [or order] dated, &c. [the order appealed 
 from] be stayed, provided that the costs payable thereunder shall 
 be duly paid within days of the taxing master's certificate, 
 
 upon an undertaking of the solicitors receiving them to repay them, 
 if unsuccessful. The costs of this application to be paid by appli- 
 cant. 
 
 (K) This is a special form of order; for other forms, see Seton, 1616 
 et seq.
 
 400 
 
 APPENDIX I. 
 
 Supra, p. 37. No. 15. Notice of Motion or Stimmons to set aside Execution. 
 
 [Heading. ,] 
 | [Formal parts as usual.~] 
 
 Take notice 
 or 
 
 Let all parties ^ 
 
 for an order that the writ of fieri facias [or the particular writ, de- 
 scribing it ly name~] issued by the plaintiff [or defendant, as the case 
 may le~] herein, and dated the day of 18 , be set aside 
 
 and discharged on the ground that it is irregularly issued [describe 
 the particular cause of irregularity alleged, or, on the ground that it 
 was so issued in bad faith, or as the case may be~\. And for an order 
 that the plaintiff [or defendant] do pay all costs occasioned by the 
 said writ and of this application. 
 
 App. B., 
 
 No. 21, 
 B. S. C. 
 Supra, p. 46. 
 O. XLII. 
 rr. 20 and 21. 
 
 No. 16. Notice of renewal of Writ of Execution (I}. 
 
 [Heading of the Action.~\ 
 Take notice that the writ of 
 and bearing date the day of 
 
 one year from the day of 
 
 Dated the day of 18 
 
 Signed , of 
 
 the 
 To the sheriff of , . 
 
 directed to the sheriff of , 
 
 18 , has been renewed for 
 18 
 
 agent for 
 
 solicitor for 
 
 Supra, p. 58. No. 17. Alias Writ (in). 
 
 Victoria [cfcc.]. To the sheriff of , greeting. 
 
 We command you, as before we have commanded you, that [&c. , 
 proceed as in ordinary form.] 
 
 (I) This notice must be sealed. 
 0. XLII. r. 21. 
 
 (m) Alias and pluries writs only 
 differ from the usual or ordinary- 
 forms in the addition of a few 
 
 words. There is no necessity for 
 recitals of the former attempted 
 executions. Forms are from Chitty, 
 p. 437.
 
 FORMS. 401 
 
 No. 18. Pluries Writ (m). Supra, p. 68. 
 
 Victoria [&c.]. To the sheriff of , greeting. 
 
 We command you, as often we have commanded you, [&c., pro- 
 ceed as in the ordinary form.] 
 
 No. 19. Notice to Sheriff to return Writ. Ch. Forms, 
 
 {Heading of Action.] Q ;HJ f r jj 
 
 To the sheriff of (n). Su P ra > P- 63 - 
 
 I hereby give you notice that I require you, within [four days in 
 London or Middlesex, eight days in any other county (oft, to make a 
 return to the writ of fieri facias [or as the case may be] issued by the 
 plaintiff [or defendant, as the case may be(p}~] in the above action, 
 and tested the day of , to levy against the said defendant 
 
 and interest, and costs [the form is variable of course, 
 
 according to the party issuing the writ, and the particular writ issued], 
 Dated, &c. 
 
 Yours, &c. 
 X. Y. of 
 
 Solicitor for the plaintiff. 
 
 No. 20. Order for Examination of Judgment Debtor. B. S. C., 
 
 App. K., 
 18 . [Here put the letter and number.] No. 38. 
 
 In the High Court of Justice. - _, 
 
 . . rr. 6&, 66, 54. 
 
 Division. Suprat p . 65 . 
 
 Between , Judgment creditor. O. XLI. r. 5. 
 
 and 
 
 , Judgment debtor. 
 
 Upon hearing , and upon reading the affidavit of , 
 
 filed on the day of , 18 , and 
 
 It is ordered that the above-named judgment debtor [or officer 
 of the corporation, as the case may be] attend and be orally examined 
 as to whether any and what debts are owing to him [or to the 
 
 (m) See note (m), supra. (o) By analogy to the old side 
 
 () This notice should, perhaps, bar rule. Tidd's Pr. 306 et seq. ; 
 
 be served personally on the sheriff Tidd's Forms, 108; Ch. Forms, 
 
 or undersheriff. Ch. Forms, ed. ed. 1866, 336; ed. 1883, 406. 
 
 1866,336. (p) Where defendant may issue, 
 
 query; supra, p. 75. 
 
 E. D D
 
 402 
 
 APPENDIX I. 
 
 defendant corporation, as the case may le], before in chambers, 
 
 at such time and place as he may appoint (q), and that the said 
 judgment debtor produce his books [or as may Reordered"} before the 
 said at the time of the examination, and that the costs of this 
 
 application be (r) [added to the judgment debt]. 
 Dated the day of 18 (s). 
 
 Supra, p. 71. No. 21. Direction of Writ to Elisors (). 
 
 Ch. Forms, 
 
 416. Victoria, &c. 
 
 Tidd's Forms, To A B and c> p ? elisors appointed by the Division of 
 
 our High Court of Justice in this behalf. 
 
 We command you, &c. [instead of the words " in your bailiwick," 
 should be inserted " in our county of ," or as the case may &e.] 
 
 Supra, p. 76. 
 Wats. Sher. 
 App. 468. 
 
 No. 22. Form of a Sheriff's Mandate to the Bailiff of a 
 
 Liberty (u). 
 N. (to wit). 
 
 A. B., Esquire, sheriff of the county aforesaid, to the Eight 
 Honourable A., Earl of B., high bailiff of the liberty of L. in the 
 county aforesaid, or to his deputy, them greeting : 
 
 By virtue of a certain writ of our lady the Queen to me directed, 
 I command you, and every of you, that you, &c. [to perform the writ, 
 the same as a common warrant^. 
 
 (q) When the appointment is 
 obtained, and after or with service 
 of this order, notice in writing of 
 such appointment must be served 
 on the debtor or officer ; the form 
 of notice follows the form of this 
 order in its material particulars, 
 see Dan. Ch. Forms, p. 421, 
 No. 1054. 
 
 (r) These costs are in the discre- 
 tion of the Court. O. XLII. 
 r. 34. 
 
 (s) The indorsement required by 
 0. XLI. r. 5, must be made on this 
 order before service. Vide supra, 
 p. 234 et seq. 
 
 (t) Mayor of Norwich v. Gill, 1 
 Dowl. 246, and note. 
 
 (u) The return to this mandate, 
 notwithstanding the direction to 
 return to the sheriff, is made to the 
 Court by the bailiff. Wats. Sher. 
 p. 61 ; 50 & 51 Viet. c. 55, s. 34, 
 sub-s. (d).
 
 FORMS. 403 
 
 No. 23. Return of Mandavi Ballivo. Ch. Forms, 
 
 By virtue of this writ to me directed, I made my mandate to the Supra, p. 76. 
 bailiff of the liberty of in my county, to -whom belongeth the 
 
 execution and return of all writs and processes within the said 
 liberty (v), which said bailiff hath returned to me (x), that by virtue 
 of my said mandate to him thereupon directed as aforesaid, he hath 
 caused to be made, &c., and that he hath the money, &c. 
 
 The answer of S. E., Sheriff. 
 
 No. 24. Form of Clause of Non omi(tas(y}. Supra, p. 76. 
 
 We command you that you omit not by reason of any liberty of 
 your county, and that [of the goods, or as the case may fee]. 
 
 No. 25. Prcecipe of Writ of Possession. R. S. C., 
 
 [Heading of Action.'] 
 
 Seal a writ of possession directed to the sheriff of , to deliver 
 
 possession to A. B. of 
 Judgment dated day of 
 
 No. 26. Writ of Possession. R. s. C., 
 
 [Heading of Action.'] No 8 '' 
 
 Victoria, by the grace of God, &c. Supra, p. 94. 
 
 To the sheriff of , greeting : 
 
 Whereas lately in our High Court of Justice, by a judgment of 
 the Division of the same Court, A. B. recovered [or, E. F. was 
 
 ordered to deliver to A. B.] possession of all that with the 
 
 appurtenances in your bailiwick ; therefore we command you that 
 you omit not by reason of any liberty in your county (z), but that 
 you enter the same, and without delay you cause the said A. B. to 
 
 (v) The words usually inserted (#) See note to last form. 50 & 51 
 
 here, "and without whom no exe- Viet. c. 55, s. 34, sub-s. (/) 
 cution of this writ could be made (y) 50 & 51 Viet. c. 55, s. 34, 
 
 by me within the same," are not sub-s. (/). This clause is inserted, 
 
 correct (for the sheriff can execute as the opening clause of the writ, 
 the writ), and ought to be omitted. (z) Note that the sheriff must 
 
 always execute this writ. 
 
 DU2
 
 404 APPENDIX I. 
 
 have possession of the said land and premises with the appurten- 
 ances, and in what manner, &c., and have you there then this 
 writ, &c. 
 
 Witness, &c. (a). 
 
 Ch. Forms, No. 27. Return to Writ of Possession that no Person came to 
 
 p. 598. point out or receive Premises. 
 
 Supra, p. 101. 
 
 I certify to our Lady the Queen that this writ was delivered to me 
 on the , since which time I have always been ready and 
 
 willing to execute the same as within I am commanded, but neither 
 the within-named plaintiff A. B., nor any person on his behalf, has 
 ever come to show me the premises within mentioned or to receive 
 possession of the same or any part thereof from me. 
 
 Dated, &c. 
 
 The answer of sheriff (b). 
 
 Supra, p. 103. No. 28. Return to Writ of Possession that Possession has been 
 
 delivered. 
 
 By virtue of the within writ I did, on the day of 
 
 deliver to the within-named plaintiff A. B. [or to C. D. on behalf 
 of the within-named plaintiff] possession of [here insert a description 
 of the premises of which possession has been delivered. The descrip- 
 tion should be precise enough to identify them] and the appurtenances 
 as within I am commanded [where one writ including both possession 
 and fi. fa. and return to the latter, inform as the case may require]. 
 
 Dated, &c. Sheriff. 
 
 Supra, p. 102. No. 29. Summons to cotiftne Plaintiff"' 's Execution to certain 
 
 Premises. 
 
 [Heading.'] 
 Let all parties, &c., 
 
 on the hearing of an application on the part of the defendant that 
 execution upon the judgment or order herein dated, &c., be con- 
 fined to [here describe the premises] with their appurtenances (c). 
 
 (a) Where judgment has been mand you that of the goods and 
 
 recovered for mesne profits or costs, chattels, &c.," in the usual way. 
 
 as well as for the land, there may R. S. C., App. H., No. 7. 
 be a joint writ of possession and (b) The return is indorsed on the 
 
 fi. fa. This is simply framed by writ. 
 
 proceeding after the word appur- (c) This summons is available 
 
 tenances : "And we further com- only where the judgment does not
 
 FORMS. 405 
 
 No. 30. Order that Plaintiff do restore Possession to Supra, p. 106. 
 
 Defendant. 
 
 [Heading.] This is the 
 
 . general form 
 
 Upon hearing, &c., and upon reading, &c., whence it appeared of an order on 
 
 that the sheriff acting under a writ of possession dated, &c., issued appeal. 
 in pursuance of the judgment [or order] in this matter dated, &c., 
 has delivered to the plaintiff possession of the premises the subject 
 of this action [or otherwise describing them for purposes of identifica- 
 tion']. It is ordered that the said judgment [or order] be reversed 
 [or varied, as the case may be], and that the plaintiff do forthwith 
 restore to the defendant the possession of the said premises [or of 
 part of the said premises, as the case may be], and that the 
 defendant recover the same and for that purpose that he be at 
 liberty to issue a writ of possession therefor (d). 
 
 No. 31. Pracipe of Fieri Facias. E. S. C., 
 
 App. Gr., 
 [Heading of the Action.'] No. 1. 
 
 Seal a writ of fieri facias directed to the sheriff of (e) to levy ', 2 
 against 0. D. the sum of and interest thereon at the rate of 
 
 per centum per annum from the day of 18 
 
 [and costs (/)] to . Judgment [or order] dated 
 
 day of 
 
 [Taxing officer's certificate dated day of (/).] 
 
 X. Y. Solicitor for [party on whose behalf 
 writ is to issue]. 
 
 define with accuracy the lands Wils. 49. The method of pro- 
 
 or premises recoverable. Doe d. cedure by way of writ of resti- 
 
 Fosterv. Wandlass, 1 T. R. 118, in tution (as to which see Tidd's 
 
 notis; Roe d. Blair \. Street, 2 Pr. Forms, 557, 655; Ch. Arch. 
 
 Ad. & El. 329. An order to the 1229) is, perhaps, better carried 
 
 effect of the summons is sometimes out by the simple writ of possession, 
 
 made on a motion for a new trial. issuable on some such order as the 
 
 Brooke d. Hence \. Baldwin, above, ittpra, p. 106. 
 
 Barnes, 468. (e) There must be a separate 
 
 (d) This order is, of course, sub- prcecipe for each writ issued, no 
 
 ject to great variation according to matter how many, into different 
 
 the circumstances of the case. It counties. 
 
 is rightly directed to the party and (/) This is subject to provisions 
 
 not to the sheriff. Doe d. Wil- of O. XLII. r. 18, under which se- 
 
 liams v. Williams, 4 N. & M. parate writ can issue for costs. 
 259 ; Roe d. Saul v. Dawson, 3
 
 406 APPENDIX I. 
 
 E. S. C., No. 32. Writ of Fieri Facias. 
 
 App. H., 
 
 No. 1. [Heading of Action or Matter.'] 
 
 Note, as to the Victoria, by the grace of God, &c., of Great Britain and Ireland 
 incorporation ' * . ,, -o !,, 
 
 of this writ Queen, Defender of the Faith. 
 
 with writs of To the sheriff of greeting. 
 
 deu S ver 10I &c We comman<i y u tliat of tlie g ods and chattels of 0. D. in your 
 supra, p.' 404 ' bailiwick you cause to be made the sum of , and also inte- 
 
 note. rest thereon at the rate of per centum per annum from the 
 
 ai ?- OU i i t m day of *, which said sum of money and interest were 
 
 different cases lately before us in our High Court of Justice in a certain action 
 set forth in [ or certain actions, as the case may be] wherein A. B. is plaintiff and 
 of Sheriff & C. D. defendant [or in a certain matter there depending intituled, 
 App. p. 516 "In the matter of E. P.," as the case may be~] by a judgment [or 
 et seq. order, as the case may be"] of our said Court bearing date the 
 
 upra, p. . ^ a y o ^ adjudged [or ordered, as the case may 'be'] to be paid 
 
 by the said C. D. to A. B., together with certain costs in the said 
 judgment [or order, as the case may be~] mentioned, and which costs 
 have been taxed and allowed by one of the taxing officers of our 
 said Court at the sum of as appears by the certificate of the 
 
 said taxing officer dated the day of . And that of the 
 
 goods and chattels of the said C. D. in your bailiwick you further 
 cause to be made the said sum of [costs] together with 
 
 interest thereon at the rate of 4Z. per centum per annum from the 
 day of *, and that you have that money and interest 
 
 before us in our said Court immediately after the execution hereof 
 to be paid to the said A. B. in pursuance of the said judgment [or 
 order as the case may be]. And in what manner you shall have 
 executed this our writ make appear to us in our said Court imme- 
 diately after the execution thereof. And have there then this writ. 
 Witness, &c. 
 
 E. S. C., No. 33. Fieri Facias on Order for Costs. 
 
 jj of 1 2. '' [Heading of Action or Matter.'] 
 
 O. XLIL Victoria, by the grace of God, &c. To the sheriff of 
 
 Supra We command you that of the goods and chattels of in your 
 
 pp. 109, 111. bailiwick you cause to be made the sum of , for certain costs 
 
 which, by an order of our High Court of Justice dated the 
 day of , 18 , were ordered to be paid by the said , 
 
 and which have been taxed and allowed at the said sum, and inte- 
 
 * Day of judgment or order, or directed by the order to run, as the 
 day on which money directed to be case may be. 
 paid, or day from which interest is
 
 FORMS. 407 
 
 rest on the said sum at the rate of 4Z. per centum per annum from 
 the day of 18 , and that you have the said sum and 
 
 interest before us in our said Court immediately after the execution 
 hereof, to be rendered to the said . And in what manner, 
 
 &c. And have there then this writ. 
 Witness, &c. 
 
 Levy and for costs of execution (g), &c., and 
 also interest on at 41. per centum per annum from 
 
 the day of 18 , until payment : besides sheriff's 
 
 poundage, officers' fees, costs of levying, and all other legal 
 incidental expenses (A). 
 
 This writ was issued by, &c., of , agent for , of , 
 
 solicitor for 
 
 The is a , and resides at in your bailiwick (A). 
 
 No. 34. Assignment of Leasehold Premises by th? Bartons Con- 
 
 YevancinST 
 
 Sheriff under a Writ of Fieri Facias. vol. iii.p. 396. 
 
 This Indenture, made the day of 18 , between SH f ra P- 129 - 
 
 of , sheriff of the county of , of the one part, and 
 
 of , (the purchaser} of the other part. Whereas in a certain 
 
 action [or matter, as the case may be] commenced in the 
 Division of Her Majesty's High Court of Justice, and intituled 
 [insert title of action or matter'], the said , the plaintiff [or 
 
 defendant, as the case may be~] recovered judgment [or obtained 
 an order, as the case may be] against the said defendant [_or plaintiff, 
 as the case may be~\ for the sum of , and for costs, 
 
 as by the said judgment [or order] duly signed and entered fully 
 appears (t). And whereas a writ of fieri facias dated the day 
 
 of 18 , was issued upon the said judgment [or order], and 
 
 upon the day of 18 , was delivered to the said 
 
 (sheriff] to be executed. And whereas the said defendant [or 
 plaintiff] was on the said day of 18 , and still is, 
 
 possessed of and entitled to a certain messuage or tenement [de- 
 scribe premises shortly'] for a certain term, then and still being unex- 
 pired, at and under a certain rent reserved in or by a demise or 
 lease granted to him thereof, or some mesne assignments therefrom 
 or otherwise, which said premises are subject to execution under 
 
 (ff) These costs, usually, where (A) This indorsement is made in 
 
 no sale, 1 5*., can be only ob- compliance with 0. XLH. rr. 13, 
 
 tained out of the proceeds of the and 16. 
 
 execution, and not personally from (t) The recital of the judgment 
 
 the debtor. Re Long, Ex parte is, perhaps, not essential. Doe d. 
 
 Cuddfford, 20 Q. B. D. 316. ' Batten v. Muriess, 6 M. & S. 110.
 
 408 
 
 APPENDIX I. 
 
 the said writ of fieri facias. And whereas the said premises having 
 been duly advertised for sale (&), and in pursuance thereof put up 
 to sale by public auction at on the day of 18 , 
 
 the said (purchaser} became the highest bidder for, and purchaser 
 of, the same at the sum of . Now this indenture witnesseth, 
 that in consideration of the said sum of paid by the said 
 
 (purchaser] to the said (sheriff], the receipt whereof he doth hereby 
 acknowledge, he, the said (sheriff], doth bargain, sell, assign and 
 set over to the said (purchaser] All [describe the said premises'] with 
 the appurtenances, To hold to the said (purchaser], his executors, 
 administrators and assigns, for all the residue of the estate which 
 he, the said defendant [or as the case may ~be~], or any other person 
 or persons in trust for him (Z) have or had therein or thereto, and 
 which he, the said (sheriff], can or may assign or set over in any- 
 wise whatsoever. 
 In witness, &c. 
 
 See Ch. 
 
 Supra ' 
 p. 137. 
 
 
 No. 35. Return of Fieri fed. 
 
 By virtue of this writ to me directed I have caused to be made 
 of the goods and chattels of the within-named C. D. the moneys 
 and interest within mentioned, which I have ready, at the day and 
 place within mentioned (m], to be rendered to the within-named 
 A. B., as I am within commanded. 
 
 The answer of , sheriff. 
 
 Ch. Forms, 
 j' ' . 3 
 
 No. 36. Return of Nulla bona. 
 
 The within-named 0. D. [execution debtor] has no goods or chattels 
 in my bailiwick whereof I can cause to be made the moneys and 
 interest within mentioned, or any part thereof (n], as within I am 
 commanded. 
 
 The answer of sheriff. 
 
 (k) Having regard to the word- 
 ing of sect. 145 of the Bankr. Act, 
 1883, it is questionable whether 
 advertisement of a sale of a term 
 of years is necessary. 
 
 (I) This is somewhat doubtful, 
 supra, p. 129. 
 
 (m) This is the usual form, but 
 is not, it is submitted, quite correct, 
 for no day is mentioned in the writ 
 for payment, except "immediately 
 after the execution hereof." On 
 
 the face of it this return confesses 
 the sheriff to be in contempt. It 
 is suggested that the form might 
 run, "I have ready on demand 
 being made of me by the plaintiff 
 or his solicitor, to be rendered, &c." 
 (n) These words are essential, 
 for where the sheriff can levy part 
 only of the debt he must return 
 fieri fed as to that part, nulla bona 
 as to residue; supra, p. 138.
 
 FORMS. 409 
 
 No. 37. Return of Fieri fed as to Part, Nulla bona as to Ch. Forms, 
 
 ** P Supra,'p. 138. 
 
 By virtue, &c. [copy Form 35 to "the within-named C. D."] to 
 the value of , which sum I have ready, &c. [as in Form 35]. 
 
 And I further certify and return that the said 0. D. hath no more 
 goods and chattels in my bailiwick whereof I can cause to be made 
 the residue of the within-mentioned moneys and interest, or any 
 part thereof, as I am within commanded. 
 
 The answer of , sheriff. 
 
 No. 38. Notice to Sheriff under 8 Anne, c. 14, s. 1, of Rent Supra, p. 142. 
 due to Landlord of Execution Debtor (o). 
 
 To the sheriff of the county of , and his under- sheriff, 
 
 bailiffs, and all others whom it may concern. 
 Take notice, that the sum of is now due and owing to 
 
 [me, or J. S. of ] from C. D. of in the county of 
 
 [the execution debtor], for [one year's, or one half-year's, or one 
 quarter's] rent due on the day of last, in respect of the 
 
 premises in his occupation at aforesaid, upon which premises, 
 
 as I am informed, you have seized and taken in execution certain 
 goods and chattels. And you are hereby required not to remove 
 any of the said goods and chattels from off the said premises until 
 the said arrears of rent are paid, pursuant to the statute in such case 
 made and provided. 
 Dated this day of 18 . 
 
 Yours, &c., 
 
 J. S. of [or E. F. of 
 
 for J. S. of ]. 
 
 No. 39. Notice from Sheriff to Execution Creditor that Rent Supra, p. 142. 
 is due from Defendant, and requiring Payment thereof 
 by such Creditor, pursuant to 8 Anne, c. 14. 
 
 [Heading of Action.'] 
 
 Take notice, that the sum of is due and owing from the 
 
 above-named defendant to his landlord of , for [one 
 
 year's, or one-half year's, or one-quarter's rent] due on the 
 
 (o) For this and the following Woodfall's Landlord and Tenant, 
 form the author is indebted to App. D., Forms (9) and (10).
 
 410 APPENDIX I. 
 
 day of last, for and in respect of the [house or farm, land, 
 
 and] premises situate at in the county of , now in the 
 
 occupation of the said defendant, and upon which certain goods and 
 chattels have been seized by the sheriff of shire under the writ 
 
 of fieri facias issued in this action [and (where it is the case) the 
 sheriff has had notice of such arrears of rent]. Now I do hereby, as 
 the agent of the said sheriff, and on his behalf, give you notice that 
 unless the above-named plaintiff do forthwith pay the arrears of 
 rent due to the said landlord either to him or to his bailiff, the said 
 sheriff will withdraw from the possession of the said goods and 
 chattels under the said writ. 
 
 Dated this day of 18 . 
 
 [L. M.] 
 
 Agent for the sheriff of shire. 
 
 To the above-named plaintiff, and ^ 
 
 to Mr. , his solicitor, or 
 
 Supra, p. 144. No. 40. Return of Goods in hand for want of Buyers. 
 
 By virtue of this writ to me directed, I have taken goods and 
 chattels of the within-named C. D., in my bailiwick, of the value 
 of [or, I have taken the goods and chattels of the within- 
 
 named 0. D. to be found in my bailiwick, value unknown (p}~\, 
 which goods and chattels remain in my hands unsold for want of 
 buyers. Therefore, I cannot have the amount of judgment and 
 costs before our lady the Queen at the day and place within men- 
 tioned, as I am within commanded (3). 
 
 g ( No. 41. Prcecipe of Venditioni Exponas. 
 
 -> ^Heading.-] 
 
 Seal a writ of venditioni exponas directed to the sheriff of , 
 
 to sell the goods and [describe property'] of C. D., taken under a 
 writ of fieri facias in this action tested day of 
 
 X. Y., Solicitor for . 
 
 (p) E. v. Sheriff 'of Herts, 9 Dowl. R. v. Bird, 2 Show. 87. Vide supra, 
 
 916 ; Philips v. Morgan, 4 B. & Aid. p. 124. 
 
 652. This form of return is sug- (q) This return is, of course, 
 
 gested instead of the usual form variable according to whether part 
 
 assessing the value of the goods, of the sum to be levied has been 
 
 because of the doubt expressed realised or not, in which case the 
 
 whether the sheriff is not bound to return will be, of course, fieri fed 
 
 find buyers at the estimated sum. as to part, and this as to residue.
 
 FORMS. 411 
 
 No. 42. Writ of Venditioni Exponas. B. S. C., 
 
 [Heading.'] N? P 4. 
 
 Victoria, by the grace of God, &c. Supra, p. 144. 
 
 To the sheriff of , greeting. 
 
 Whereas by our writ we lately commanded you that of the goods 
 and chattels of 0. D. [here recite the fieri facias to the end~\. And 
 on the day of , 18 , you returned to us in the 
 
 Division of our High Court of Justice aforesaid, that, by virtue of 
 the said writ to you directed, you had taken goods and chattels of 
 the said C. D. to the value (r) of the money and interest aforesaid, 
 which said goods and chattels remained in your hands unsold for 
 want of buyers. Therefore, we, being desirous that the said A. B. 
 should be satisfied his money and interest aforesaid, command you 
 that you expose to sale, and sell, or cause to be sold, the goods and 
 chattels of the said C. D. by you in form aforesaid taken, and 
 every part thereof, for the best price that can be gotten for the 
 same, and have the money arising from such sale before us in our 
 said Court of justice immediately after the execution hereof to be 
 paid to the said A. B. And have there then this writ. 
 
 Witness, &c. (s). 
 
 No. 43. Prcecipe of Distringas against Ex-Sheriff 1 . R. g. c., 
 
 rrr j- i App. Gr., 
 
 [Heading.] No.ll. 
 
 Seal a writ of distringas nuper vicecomitem quod venditioni exponat 
 directed to the sheriff of , to sell the goods and of , 
 
 taken under a writ of fieri facias in this action tested the day 
 
 of , 18 . 
 
 Dated the day of , 18 . 
 
 Signed . 
 
 (Address) 
 
 Solicitor for 
 
 No. 44. Distringas against Ex-Sheriff. R. S. C., 
 
 rrr j- n App. H., 
 
 [Heading-] Nof 14. 
 
 Victoria, by the grace of God, &c. Supra, p. 145. 
 
 To the sheriff of , greeting. 
 
 We command you that you distrain , late sheriff of your 
 
 county aforesaid, by all his land and chattels in your bailiwick, so 
 
 (r) See note to Form No. 40. (*) Corresponding form under old 
 
 procedure, 2 Saund. 47 ee.
 
 412 APPENDIX I. 
 
 that neither he, nor any one by him, do lay hands on the same 
 until you shall have another command from us in that behalf, and 
 that you answer to us for the issues of the same so that the said 
 expose for sale, and sell, or cause to be sold, for the best 
 price that can be gotten for the same, those goods and chattels 
 which were of in your bailiwick to the value of [the 
 
 amount of or part of] the sum of , which lately before us 
 
 in our High Court of Justice in a certain action, wherein 
 plaintiff and defendant, by a judgment [or order] of our 
 
 said Court bearing date the day of , was adjudged [or 
 
 ordered] to be paid by the said to the said , and of the 
 
 sum of , the amount at which the costs in the said judg- 
 
 ment [or order] mentioned have been taxed and allowed, and of 
 interest on the said sum of at the rate of 41. per centum 
 
 per annum from the day of , and on the said sum of 
 
 at the same rate from the day of , which goods 
 
 and chattels he lately took by virtue of our writ, and which remain 
 in his hands for want of buyers, as the said late sheriff hath lately 
 returned to us in our said Court. And have the money arising 
 from such sale before us in our said Court immediately after the 
 execution hereof to be paid to the said . And have there 
 
 then this writ (t). 
 
 Witness, &c. 
 
 This writ was issued by, &c. 
 
 The defendant is a , and resides at , in your baili- 
 
 wick. 
 
 Supra p. 145. No. 45. Motion to increase Issues taken under Distringas 
 
 nuper vicecomitem. 
 
 [Heading."] 
 
 Take notice that, &c. 
 
 for an order that X. Y., Esquire, the sheriff of the county of 
 be ordered to return the sum of ; issues on the next dis- 
 
 tringas to be issued in this cause (w). 
 
 (C) This is substantially the same doubtedly the right process in the 
 
 form which has always been in use. few cases where the liability to dis- 
 
 See 2 Saund. 47 dd. pose of goods remains in the ex- 
 
 (M) This procedure is seldom sheriff. 
 called into exercise, but it is un-
 
 FORMS. 413 
 
 No. 46.Prcecipe of Writ of Elegit. R. S. C., 
 
 App. G., 
 [Heading.] No. 2. 
 
 Seal a writ of elegit directed to the sheriff of against 
 
 of , in the county of , for not paying to A. B. the sum of 
 
 , together with interest thereon from the day of 
 
 [and the sum of for costs], with interest thereon at the rate 
 
 of 41. per centum per annum. 
 
 Judgment [or Order] dated the day of 18 . 
 
 [Taxing officer's certificate dated day of 18 .] 
 
 X. Y., solicitor for 
 
 No. 47. Form of Writ of Elegit. R. S. C., 
 
 App. H., 
 {Heading.'} No. 3. 
 
 Victoria, by the grace of God, &c. Bookl Ch V 
 
 To the sheriff of , greeting : p. 153. 
 
 Whereas lately in our High Court of Justice in a certain action 
 [or certain actions, as the case may be] there depending, wherein 
 A. B. is plaintiff, and C. D. defendant [or in a certain matter there 
 depending, intituled " In the matter of E. F.," as the case may be], 
 by a judgment [or order, as the case may be] of our said Court made 
 in the said action [or matter, as the case may be], and bearing date 
 the day of , it was adjudged [or ordered, as the case may 
 
 be] that C. D. should pay unto A. B. the sum of , together 
 
 with interest thereon after the rate of per centum per annum 
 from the day of , together also with certain costs as in 
 
 the said judgment [or order, as the case may be] mentioned, and 
 which costs have been taxed and allowed by , one of the 
 
 taxing officers of our said Court, at the sum of as appears 
 
 by the certificate of the said taxing officer dated the day 
 
 of 18 . And afterwards the said A. B. came into our said 
 
 Court, and, according to the statute in such case made and provided, 
 chose to be delivered to him all such lands, tenements, rectories, 
 tithes, rents, and hereditaments, including lands and hereditaments 
 of copyhold or customary tenure in your bailiwick, as the said C. D. 
 or any one in trust for him was seised or possessed of on the 
 day of , in the year of our Lord [the day on which the 
 
 judgment or order was made], or at any time afterwards, or over 
 which the said C. D. on the said day of , or at any time 
 
 afterwards, had any disposing power which he might, without the
 
 414 APPENDIX I. 
 
 assent of any other person, exercise for his own benefit, to hold the 
 said lands, tenements, rectories, tithes, rents, and hereditaments 
 respectively, according to the nature and tenure thereof, to him and 
 to his assigns until the said two several sums of and 
 
 , together with interest upon the said sums at the rate of 
 
 per centum per annum from the day of [date 
 
 of judgment or order, unless by the judgment or order interest is ordered 
 to run from some other date~\, shall have been levied. Therefore, we 
 command you without delay you cause to be delivered to the said 
 A. B. by a reasonable [price and (a;)] extent all such lands and 
 tenements, rectories, tithes, rents, and hereditaments, including 
 lands and hereditaments of copyhold or customary tenure in your 
 bailiwick as the said C. D., or any person or persons in trust for 
 him, was or were seised or possessed of on the said day of 
 [date of judgment or order], or at any time afterwards, or over which 
 the said C. D., on the said day of [date of judgment or 
 
 order], or at any time afterwards, had any disposing power which 
 he might, without the assent of any other person, exercise for his 
 own benefit, to hold the said lands, tenements, rectories, tithes, rents, 
 and hereditaments respectively, according to the nature and tenure 
 thereof, to him and to his assigns until the said two several sums 
 and interest as aforesaid shall have been levied. And in what 
 manner you shall have executed this our writ make appear to us in 
 our Court aforesaid immediately after the execution thereof under 
 your seals, and the seals of those by whose oath you shall make the 
 said extent. And have there then this writ. 
 Witness, &c. 
 
 No. 48. Form of Return of Nihil to Elegit. 
 
 The within-named C. D. hath not, nor hath any person in 
 trust for him, any lands, tenements, rectories, tithes, rents, or here- 
 ditaments in my bailiwick, nor are there in my bailiwick any lands, 
 tenements, rectories, tithes, rents, or hereditaments over which he 
 has a disposing power. I cannot cause to be delivered any of the 
 same to the said A. B., as within I am commanded. 
 
 The answer of sheriff. 
 
 (x) The word price now unnecessary, having relation to goods only ; 
 vide supra, p. 168.
 
 FORMS. 415 
 
 No. 49. Return of Lands delivered, and of the Inquisition under Supra, 
 
 an Elegit (y). PP- 173 > 178 ' 
 
 By virtue of this writ to me directed, I have caused to be 
 delivered to the within-named A. B. all the lands which the said 
 C. D. hath in my bailiwick, as within I am commanded. 
 
 The execution of this writ appears in the inquisition hereunto 
 annexed. 
 
 The answer of sheriff. 
 
 Inquisition inhere Lands extended. 
 
 County of to wit. An inquisition indented, taken at 
 
 in the said county of on the day of 18 , before 
 
 me , sheriff of the said county, by virtue of the writ of our 
 sovereign lady Queen Victoria to me directed and hereunto annexed, 
 on the oath of [insert the names of the twelve jurors'], good and lawful 
 men of my bailiwick, who, being duly sworn and charged upon their 
 oath, say that C. D. in the said writ named was, on the day of 
 taking this inquisition [in the case of a voluntary conveyance by C. D. 
 since the date of the judgment insert : on the day of the date 
 of the said judgment, and still is, as against and in respect of the said 
 A. B., and his right under and by virtue of the said writ (z)], seised 
 in his demesne as of fee [or, where he is not entitled to an estate in fee, 
 describe the estate in appropriate terms, the description and not the limi- 
 tations of the estate being sufficient, e.g., seised of an estate of free- 
 hold for the term of his natural life, or seised of an estate tail to him 
 and the heirs of his body (a) or possessed of the residue of a term 
 of years commencing from the day of and now 
 
 having years to come and unexpired] of and in a certain 
 messuage or dwelling-house and farm with the appurtenances 
 thereto belonging, commonly known or called by the name of , 
 situate and being [a sufficient description should here be inserted of 
 the land extended, and should be precise enough for purposes of identifi- 
 cation. In some cases this is a matter of nicety, as, for example, 
 ivhere C. D. is merely a tenant in common or joint tenant. Where the 
 estate delivered is subject to any lease or tenancy the particulars should 
 appear in the inquisition (b). The description, where practicable, should 
 
 (y) The return being a muni- p. 177. It was formerly necessary 
 
 ment of title should be engrossed to set forth, by metes and bounds, 
 
 on parchment. the land delivered, being a moiety 
 
 (z) See fully as to this, supra, of the debtor's land. Fenny v. 
 
 p. 188 et seq. Durrani, 1 B. & Aid. 40 ; Morris v. 
 
 (a) Vide supra, p. 175 et seq. Jones, 2 B. & C. 243 ; Sherwood v. 
 
 (b) For example, where the Clark, 15 M. & W. 764. Vide 
 estate is subject to a mortgage supra, p. 178. 
 
 created by demise. Vide supra,
 
 416 APPENDIX I. 
 
 be taken from the conveyance to or other title deeds of the debtor], and 
 being of the yearly value of in all issues beyond reprizes, 
 
 which said premises I the said sheriff, on the aforesaid day of taking 
 this inquisition, have caused to be delivered to the said A. B. at a 
 reasonable extent, subject to [the said tenancies, or leases where there 
 are any}, to hold according to the nature and tenure thereof to him 
 and his assigns, according to the form of the statutes in such case 
 made and provided, until the said several sums of and 
 
 in the said writ mentioned, together with the said interest 
 
 thereon, shall have been levied. And lastly, the jurors aforesaid 
 upon their oath say that the said C. D. on the aforesaid day of 
 taking this inquisition had not, nor had any person in trust 
 for him, nor had he, or any person in trust for him, on the 
 said day of [the date of the judgment or order~\, or 
 
 at any time afterwards [where necessary insert, other than such 
 lands as since the said day of , the date of the judg- 
 
 ment, he hath disposed of for valuable consideration], any other or 
 more lands or tenements, nor any rectory, tithes or hereditaments 
 in the said county whereof he the said C. D. is or was seised or 
 possessed, nor had he the said C. D. at the date of such judgment, 
 or anytime afterwards, any other or more lands [&c.] in the county 
 aforesaid over which he had any disposing power which he might, 
 without the assent of any other person, have exercised for his own 
 benefit to the knowledge of the said jurors. 
 
 In witness, &c. (c). Sheriff. 
 
 > [Jurors.'] 
 &c.) 
 
 Supra, p. 185. No. 50. Summons for Accounts against Tenant by Elegit. 
 
 [Heading of Action.'] 
 Let all parties [&c.] 
 
 on the hearing of an application on the part of the above-named 
 for an order that an account be taken of what is due to the 
 above-named [or his assignee, as the case may be], the tenant 
 
 by elegit under the judgment [or order] made herein, and dated 
 the day of , and in respect of the costs consequent upon 
 
 such judgment [or order] and of this application to be taxed. 
 
 (c] The inquisition is under the seals of the sheriff and jurors.
 
 FORMS. 417 
 
 No. 51. Order for taking Account under an Elegit. Dan. Ch. 
 
 C"*0 
 
 Upon motion, &c., on the part of, &c., it is ordered 
 
 1. That an account may be taken of what is due to the above- P< 
 named A. B. [the tenant ~by elegif], on the judgment [or order] made 
 in this action on the day of 18 , and for his costs of 
 this application, and consequent thereon such costs to be taxed (d}. 
 
 2. That an account may be taken of the rents, issues, and profits 
 of [describe the premises as in the inquisition], being the premises 
 whereof possession was, on the day of 18 [the date of 
 the inquisition}, under and by virtue of a writ of elegit issued on 
 the said judgment [or order], received by the said A. B., or by any 
 other person or persons by his order or for his use, or which, 
 without his wilful neglect or default, might have been so re- 
 ceived (e}. 
 
 3. That if, upon taking the said accounts, it shall appear that 
 the amount of the said rents, issues, and profits so received, or 
 which ought to have been received, as aforesaid, is less than the 
 amount which shall appear to be due to the said A. B. upon the 
 said judgment [or order], and for costs as aforesaid, then the said 
 C. D. [the execution debtor'] may be at liberty to pay to the said A. B. 
 what shall appear to be due to him upon the said judgment [or 
 order], and for costs as aforesaid, after giving credit for the sum so 
 received, or which ought to have been received, by him as afore- 
 said. And that upon such payment being made, the said A. B. 
 may be ordered to deliver possession of the said premises to the 
 said C. D. (/). 
 
 4. That if, upon taking the said accounts, it shall appear that 
 the sum so received, or which ought to have been received, as 
 aforesaid, is greater than the amount which shall appear to be due 
 to the said A. B. upon the said judgment [or order], and for costs 
 as aforesaid, then the said A. B. may be ordered to pay to the said 
 C. D. what shall appear to have been received by him, or should 
 have been received by him, as aforesaid, after giving credit 
 for the amount which shall appear to be due to him upon the said 
 judgment [or order] and for costs as aforesaid. And that the said 
 A. B. may also be ordered to deliver possession of the said premises 
 to the said C. D. 
 
 (d) As to including in these costs De G. & S. 685. 
 
 the costs of the inquisition, vide (/) This part of the order re- 
 
 supra, p. 194. places to a great extent, if not 
 
 (e) As to the liability to account completely, the old -writ of restitu- 
 as a mortgagee in possession, vide tion. Vide supra, pp. 106, 405, note. 
 supra, p. 185. Bull v. Faulkner, 1 
 
 E. E E
 
 418 APPENDIX I. 
 
 R- S. 0., No. 52. Prcecipe of Writ of Delivery. 
 
 App. a., 
 
 No. 8. [Heading. ~\ 
 
 Forms a 427 ^ ea ^ a wr ^ ^ delivery directed to the sheriff of , to make 
 
 No. 1067. delivery to A. B. of the chattels specified in the judgment [or 
 order (#)] dated the day of 18 . 
 
 Dated the day of 18 . 
 
 No. 53. Writ of Delivery. 
 '' [.Heading.-] 
 
 Vide supra, Victoria, by the grace of God, &c. 
 
 Ch VI.', and To tlie slierifE of ' g reetin g : 
 
 p. 198. ' We command you that without delay you cause the following 
 
 chattels, that is to say [here enumerate the chattels recovered by the 
 judgment or order, for the return of which execution has been ordered to 
 issue"], to be returned to A. B., which said A. B. lately in our High 
 Court of Justice recovered against C. D. [or, C. D. was ordered to 
 deliver to the said A. B.] in an action in the Division of our 
 
 said Court. * And we further command you that if the said chattels 
 cannot be found in your bailiwick, you distrain the said C. D. by all 
 his lands and chattels in your bailiwick, so that neither the said 
 C. D., nor any one for him, do lay hands on the same until the said 
 C. D. render to the said A. B. the said chattels. J 
 
 And in what manner, &c. 
 
 And have you there then this writ. 
 Witness, &c. 
 
 No. 54. 
 
 [The like, but instead of a distress until the chattel is returned corn- 
 It. . t;., manding the sheriff to levy on defendant's goods, the assessed value of 
 
 pp -,f"' , 7 _ 
 
 No. 11. 
 
 Supra, p. 198. Proceed as in the preceding form until the *, and then thus :] 
 
 And we further command you that if the said chattels cannot be 
 found in your bailiwick, of the goods and chattels of the said C. D. 
 in your bailiwick you cause to be made [the assessed value of 
 
 the chattels'] J And in that manner, &c. 
 And have you there then this writ. 
 Witness, &c. 
 
 (g] Vide supra, p. 196, as to ne- quent uncertainty whether the 
 cessity for an assessed value being writ issues on an order as dis- 
 placed on the goods before the tinguished from a judgment, 
 writ can issue at all, and conse-
 
 FORMS. 419 
 
 No. 55. E. S. C., 
 
 App. H., 
 
 \Ifin either of the preceding forms it is wished to include damages, No - H. 
 costs, and interest, proceed to the }, and continue thus :] Supra, p. 198. 
 
 And we further command you that of the goods and chattels of the 
 said C. D. in your bailiwick, you cause to be made the sum of 
 [damages']. And also interest thereon at the rate of 4Z. per 
 
 centum per annum from the day of , which said sum of 
 
 money and interest were in the said action by the judgment therein 
 [or by order dated the day of ] adjudged [or ordered] to 
 
 be paid by the said C. D. to A. B., together with certain costs in the 
 said judgment for order] mentioned, and which costs have been 
 taxed and allowed by one of the taxing officers of our said Court at 
 the sum of , as appears by the certificate of the said taxing 
 
 officer, dated the day of . And that of the goods and 
 
 chattels of the said C. D. in your bailiwick you further cause to be 
 made the said sum of [costs], together with interest thereon 
 
 at the rate of 4.1. per centum per annum from the day of 
 And that you have that money and interest before us in our said 
 Court immediately after the execution hereof to be paid to the said 
 A. B. in pursuance of the said judgment [or order]. And in what 
 manner, &c. 
 
 And have you there then this writ. 
 Witness, &c. 
 
 No. 56. Return of Nulla bona, and that Defendant is a Ch. Forms, 
 Beneficed Clerk (h}. C,p. 200. 
 
 The within-named C. D. has no goods or chattels, nor any lay fee 
 in my bailiwick, which I can seize or take, or pay, or deliver to the 
 within-named A. B., or whereof I can cause to be made the moneys 
 [or ], and interest within mentioned, or any part thereof, 
 
 as I am within commanded ; but I do hereby certify that the said 
 C. D. is a beneficed clerk, to wit, rector of the rectory [or vicar of 
 the vicarage, or as the case may oe] and parish church of in 
 
 my county, which said rectory [or vicarage] and parish church are 
 within the diocese of the Eight Eeverend Father in God , by 
 
 Divine permission Lord Bishop of [or within the peculiar juris- 
 diction of the Very Eeverend the Dean and Chapter of the Cathedral 
 Church of St. [Peter of York], and instituted to try them as ordi- 
 nary, as the case may oe]. 
 
 (h) It is on this return that execution against ecclesiastical goods is 
 founded. 
 
 EE2
 
 420 APPENDIX I. 
 
 E. S. C., No. 57. Prcecipe of Fieri Facias, or Sequestrari Facias de 
 
 '4 ' bonis Ecclesiasticis (i ). 
 
 [Heading."] 
 
 Seal a writ of fieri facias [or sequestrari facias] de bonis ecclesias- 
 ticis directed to the Bishop of [or Archbishop, as the case may 
 
 le], against C. D. for not paying A. B. the sum of 
 Judgment [or order] dated day of 
 
 [Taxing officer's certificate dated day of , 18 .] 
 
 X. Y., 
 
 Solicitor for . 
 
 E. S. C., No. 58. Writ of Fieri Facias de bonis Ecclesiasticis. 
 
 App. H., 
 
 No. 5. [Heading.] 
 
 Supra, p. 202. Victoria, by the grace of God, &o. 
 
 To the Eight Eeverend Father in God [John], by Divine 
 
 permission Lord Bishop of , greeting. 
 
 We command you, that of the ecclesiastical goods of 0. D., clerk 
 in your diocese, you cause to be made , which lately before 
 
 us in our High Court of Justice in a certain action [or certain 
 actions, as the case may be] wherein A. B. is plaintiff and 0. D. is 
 defendant [or in a certain matter there depending, intituled " In the 
 matter of E. F.," as the case may le] by a judgment [or order, as 
 the case may be] of our said Court bearing date the day of 
 
 , was adjudged [or ordered, as the case may be] to be paid by 
 the said C. D. to the said A. B., together with interest on the said 
 sum of at the rate of per centum per annum from 
 
 the day of , and have that money, together with such 
 
 interest as aforesaid, before us in our said Court immediately after 
 the execution hereof, to be rendered to the said A. B. , for that our 
 sheriff of returned to us in our said Court on day of 
 
 [or " at a day now past "] that the said C. D. had not any 
 goods or chattels, or any lay fee in his bailiwick whereof he could 
 cause to be made the said , and interest aforesaid, or any 
 
 part thereof, and that the said C. D. is a beneficed clerk (to wit) 
 rector of the rectory [or vicar of the vicarage] and parish church 
 of in the said sheriff's county, and within your diocese [as in 
 
 the return]. And in what manner, &c. And have you there then 
 this writ. 
 Witness, &c. 
 
 (i) It is submitted that the offi- satisfied of the return set forth in 
 cer issuing the writ should be the last form having been made.
 
 n ' 
 
 FORMS. 421 
 
 No. 59. Writ of Fieri Facias de bonis Ecclesiasticis to the jj g Q 
 
 Archbishop during the Vacancy of the Bishop's See. A PP- H.', 
 
 No. 6. 
 
 Victoria, by the grace of God, &c. Supra, p. 201, 
 
 To the Most Keverend Father in God [John], by Divine Provi- 
 dence Lord Archbishop of Canterbury, Primate of all Eng- 
 land, and Metropolitan [or To the Most Keverend Father in 
 God [John], by Divine Permission Lord Archbishop of York, 
 Primate of England, and Metropolitan], greeting. 
 We command you that of the ecclesiastical goods of C. D., clerk 
 in the diocese of which is within the province of [Canterbury], 
 as ordinary of that church, the episcopal see of now being 
 
 vacant, you cause to be made [&c. conclude as in the preceding 
 form]. 
 
 No. 60. Writ of Sequestrari facias de bonis Ecclesiasticis. ESC 
 
 Victoria, by the grace of God, &c. N? P 7. H '' 
 
 To the Eight Eeverend Father in God [John], by Divine per- Supra, p. 202. 
 mission Lord Bishop of , greeting. 
 
 Whereas we lately commanded our sheriff of that he 
 
 should omit not by reason of any liberty of his county, but that he 
 should enter the same and cause [to be made, if after the return to a, 
 fieri facias, or delivered, if after the return to an elegit, &c., and in 
 either case recite the former writ]. And whereupon our said sheriff 
 of on [or "a day past"] returned to us in the 
 
 Division of our said Court of Justice, that the said C. D. was a 
 beneficed clerk, that is to say, rector of the rectory [or vicar of the 
 vicarage] and parish church of in the county of and 
 
 within your diocese, and that he had not any goods or chattels, or any 
 lay fee in his bailiwick [here follow the words of the sheriff's return]. 
 Therefore, we command you that you enter into the said rectory 
 [or vicarage] and parish church of and take and sequester the 
 
 same into your possession, and that you hold the same in your 
 possession until you shall have levied the said , and 
 
 interest aforesaid, of the rents, tithes, rent-charges in lieu of tithes, 
 oblations, obventions, fruits, issues, and profits thereof, and other 
 ecclesiastical goods in your diocese of and belonging to the 
 said rectory [or vicarage] and parish church of and to the 
 
 said C. D. as rector [or vicar] thereof to be rendered to the said 
 A. B., and in what manner, &c. 
 
 And have you there then this writ. 
 
 Witness, &c.
 
 422 APPENDIX I. 
 
 Ch. Forms, No. 61. Warrant from the Bishop on a Fieri facias de bonis 
 
 p. 573. (k) 77VW/>e//7/Wc 
 
 Supra, p. 202. ucciesiasticis, 
 
 , by Divine permission Bishop of . To of , 
 
 greeting. 
 
 Whereas we have with all due reverence lately received her 
 Majesty's writ, hereinafter set forth, issuing out of the Queen's 
 Bench Division of her Majesty's High Court of Justice in the words 
 following, to wit [reciting in full the fi. fa. de tonis ecclesiasticis'], on 
 which said writ there was and is a certain indorsement in writing 
 directing us to levy [&c., recite indorsement in full], "We 
 
 therefore, by virtue of and in obedience to the said writ, and inas- 
 much as in us lies duly executing the same, have sequestrated all 
 and singular the tithes, rent-charges in lieu of tithes, fruits, profits, 
 oblations, obventions, and all other ecclesiastical rights and emolu- 
 ments of and belonging to the rectory [or vicarage] and parish 
 church of , in the county of , and diocese of , of 
 
 which the said 0. D. mentioned in the said writ is the present rector 
 [or vicar], and by these presents do sequester the same, and give and 
 grant unto you the said E. P. full power and authority to seques- 
 trate, collect, levy, gather, and receive all and singular the tithes, 
 rent-charges in lieu of tithes, fruits, profits, oblations, obventions, 
 and all other ecclesiastical rights and emoluments of and belong- 
 ing to the rectory [or vicarage] and parish church of 
 aforesaid, and the same to sell and dispose of, and the money arising 
 therefrom to apply to and for the due payment of the 
 and interest, in the said writ mentioned, subject to the said indorse- 
 ment on the said writ, and also subject to a decree made and inter- 
 posed by us on in a certain cause or business depend- 
 ing before us in judgment against the said 0. D., that the said 
 fruits, profits, and emoluments whatsoever of the said rectory [or 
 vicarage] and parish church of should be sequestrated for 
 and during the space of three years, to the end that the said parish 
 church and cure of souls within the same might be duly supplied 
 with the performance of divine service, and that the parsonage 
 house, together with the other buildings on the premises, might be 
 put and kept in substantial repair, and that all duties and imposi- 
 tions incumbent on the said rectory [or vicarage] might be dis- 
 charged; and subject also to the execution of the same decree; and 
 also to publish or cause to be published this our present seques- 
 tration on the church door of the parish church of aforesaid, 
 previously to the commencement of the celebration of divine 
 
 (k) See also similar form given in note to Pack v. Tarpley, 9 A. & E. 
 468.
 
 FORMS. 423 
 
 service (I), and in such fit terms and in such, fit places as to you 
 shall seem most proper and expedient, hereby requiring you to take 
 care and provide that during this our present sequestration, the 
 cure of souls within the said parish of be well, duly, and 
 
 canonically supplied with the performance of divine service by some 
 fit and able minister, to be approved of or nominated by us or our 
 successors if occasion shall require ; and that the said parsonage 
 house, together with the other buildings and fences on the premises, 
 may be repaired and kept and continued in substantial repair, and 
 all tenths, subsidies, procurations, synodals, and all other imposi- 
 tions, both ordinary and extraordinary whatsoever, incumbent on 
 and payable out of the said rectory [or vicarage], be well and duly 
 satisfied, answered, and paid during the continuance of this our 
 present sequestration ; and lastly, that you make and render before 
 us, or our vicar-general and official principal, or other competent 
 judge in this behalf, a true, just, and faithful account of and upon 
 your receipts and disbursements in your office of sequestrator, when 
 and at such time or times as you shall thereunto be lawfully re- 
 quired. In witness whereof we have caused the seal of office of the 
 worshipful , doctor of laws, our vicar-general and official 
 
 principal, which we use in this behalf, to be affixed to these 
 presents. 
 
 Dated at , the day of , in the year of our Lord 
 
 18 , [and in the year of our translation]. 
 
 No. 62. Warrant or Sequestration on Writ of Sequestrari Oh. Forms, 
 
 facias de bonis ecclesiasticis from the Bishop. ^J5. 
 
 J Supra, p. 202. 
 
 [Samuel], by Divine permission Lord Bishop of [Oxford]. To 
 
 our beloved in Christ, J. B., of , greeting. 
 
 "Whereas we have lately, with all due obedience and humility, 
 received the writ of our sovereign lady Victoria, by the grace of 
 God, &c., to be executed in the words following, to wit [copy the 
 writ of seq. fa.], and which said writ was indorsed to levy 
 [recite the indorsement]. We therefore, being willing, as is our duty, 
 to obey the will and command of our said lady the Queen, accord- 
 ing to the exigence of the said writ, have sequestered all and 
 singular the fruits, tithes, rent-charges in lieu of tithes, oblations, 
 obventions, issues and profits whatsoever to the said rectory and 
 parish church of , [or the said vicarage and parish church of 
 
 (/) Vide p. 203, supra.
 
 424 APPENDIX I. 
 
 ], in the county of , and diocese of within our 
 
 jurisdiction, and to the aforesaid , the incumbent thereof, 
 
 belonging or in anywise appertaining [here follow the return], and 
 do sequester the same by these presents ; To publish therefore, or 
 cause to be published, this our sequestration, so by us interposed, 
 to all and singular the persons that are or shall be interested 
 therein, on such days and in such places as are proper and conve- 
 nient in this behalf, and also to ask for, demand, collect, levy and 
 receive all and singular the said fruits, tithes, rent-charges in lieu 
 of tithes, oblations, obventions, issues and profits whatsoever to the 
 said rectory and parish church of , [or to the said vicarage 
 
 and parish church of ] howsoever belonging or in anywise 
 
 appertaining, and with the same so collected, levied and received, 
 to cause the cure of the said church to be duly supplied with divine 
 offices and other requisites, and all charges and duties belonging 
 to the said church to be sustained, and to render a true and just 
 account of the residue of what you shall have so collected, levied 
 and received to us, or to our vicar-general and official principal, 
 when you shall be duly required so to do, and discharge all other 
 things needful and necessary in that behalf, and which the tenor 
 of the said writ requires to be done ; we commit unto you, the said 
 J. B., our power and authority by these presents until we shall 
 think fit to release the same. In testimony whereof we have 
 caused the seal of our Consistorial Episcopal Court to be hereunto 
 affixed this day of 18 . 
 
 J. D., 
 Deputy Eegistrar of the diocese of 
 
 K. S. C., No. 63. Pracipefor Writ of Attachment. 
 
 App. G., 
 
 No. 10. {Heading.'} 
 
 Forms p. 396 ^ ea ^ ^ n pursuance of order dated the day of 18 , an 
 
 No. 995. attachment directed to the sheriff of , against 0. D. for not 
 
 [here specify the act required by the judgment or order to be performed."] 
 Dated the day of 18 . 
 
 \_Name and address of solicitor or party issuing the writ.~\
 
 FORMS. 425 
 
 No. 64. Writ of Attachment (m). E. S. C., 
 
 App. H., 
 [Heading.] No. 12. 
 
 Victoria, by the grace of God, &c. Su ? ra > P- 23 - 
 
 To tlie sheriff of , greeting. 
 
 We command you to attach. C. D. so as to have him hefore us in 
 the Division of our High Court of Justice, wheresoever the 
 
 said Court shall then be, there to answer to us as well touching a 
 contempt which he, it is alleged, hath committed against us, as 
 also such other matters as shall be then and there laid to his 
 charge, and further, to perform and abide such order as our said 
 Court shall make in this behalf, and hereof fail not, and bring this 
 writ with you. 
 
 "Witness, &c. 
 
 [Indorsement.^ Dan. Ch. 
 
 This writ, if issued for default in payment of money, is subject to -$ Q 99^' ' ' 
 the following limitations : 
 
 If under section 4 of the Debtors Act, 1869, it does not authorize 
 imprisonment for any longer period than one year. 
 
 If issued under section 5 of the same Act, it does not authorize 
 imprisonment for any longer period than six weeks. 
 
 [Further indorsement .] 
 
 This writ was issued by of [ place of abode or office of business], 
 
 solicitor for the within-named who resides at and was 
 
 issued for [here state nature of contempt]. 
 
 No. 65. Indorsement on Copy Judgment or Order for o. XLI. r. 5. 
 Service (n). 
 
 If you, the within-named C. D., neglect to obey this judgment [or 
 order] by the time therein limited, you will be liable to process of 
 execution for the purpose of compelling you to obey the same 
 judgment [or order]. 
 
 (m) This form is identical with by 0. XLI. r. 5, but it has the 
 
 that in use in Chancery. Braithw. disadvantage of not setting forth, 
 
 Pr. 158. The common law writ as the old forms did, the conse- 
 
 was practically the same ; see quences of disobedience. See the 
 
 forms in Tidd, Pr. Forms. forms given in Braithw. Pr. 167. 
 
 (n) This is the form prescribed Vide supra, p. 234.
 
 426 
 
 APPENDIX I. 
 
 Seton, 1559. 
 Supra, p. 238. 
 
 Dan. Ch. 
 Forms, p. 
 No. 993. 
 Supra, p. 
 
 No. 66. Order for Substituted Service of Judgment or Order. 
 
 Whereas by the judgment [or order] dated &c., it was ordered 
 [recite tilings required to be performed']. Now upon motion &c., 
 who alleged [state from affidavit to the effect] that the plaintiff hath 
 been unable to serve the defendant B. with the said judgment [or 
 order], although due diligence hath been used for that purpose, as 
 by the affidavit of &c., filed &c. appears ; and upon reading the said 
 judgment [or order] and affidavit, the Court doth order that 
 service of the said judgment [or order] dated &c., together with a 
 copy of this order upon at [or upon 0. D. &c., members 
 
 of the firm of &c., or one of them], be deemed good service on the 
 said defendant. 
 
 395, 
 239 
 
 No. 67. Notice of Motion or /Summons (o}for leave to issue 
 Writ of Attachment. 
 
 [Heading. ,] 
 
 Let all parties \ 
 
 or > [Formal parts as usual.~] 
 
 Take notice that / 
 
 on the part of the plaintiff [or as may le~] that he may be at 
 liberty to issue a writ or writs of attachment against the defendant 
 C. D. [or as may be~] for his contempt in not [here state the act re- 
 quired to be done or abstained from, and in respect of which contempt 
 is alleged] pursuant to the judgment [or order] dated the day 
 
 of 18 . And that the said C. D. may be ordered to pay to 
 
 the applicant his costs of this application, and also his costs of and 
 incidental to the issuing and execution of the said writ or writs of 
 attachment. 
 
 Seton, 1563. 
 Supra, p. 244. 
 
 No. 68. Order for issue of Writ of Attachment (p\ 
 
 "Whereas by the judgment [or order] dated &c., it was ordered 
 [recite direction for the act to be done]. Now upon motion &c., by 
 counsel for (the plaintiff) A., who alleged that (the defendant) B. 
 has not &c. [state default"], as by the affidavit of &c., filed &c. appears, 
 and upon hearing counsel for (the defendant) B., and upon reading 
 the said judgment [or order] the said affidavit [enter evidence of 
 service or substituted service of the judgment &c. , and if the person in 
 
 (o) As to procedure by summons 
 in chambers, vide supra, p. 239. 
 
 (p) This form is available in 
 cases of contempt, other than the 
 non-payment of money.
 
 FORMS. 427 
 
 contempt does not appear, and an affidavit of &c., filed &c., of service 
 of notice of this motion upon the said (defendant) B.], this Court 
 doth order that the said (plaintiff) A. be at liberty to issue a writ 
 of attachment against the said (defendant) B. for his contempt in 
 not &c. \_as above]. And it is ordered that the said (defendant) B. 
 do pay to the said (plaintiff) A. his costs of this application, and of 
 the said attachment to be taxed by the taxing master. 
 
 No. 69. Order for issue of Writ of Attachment for non- Seton, 1565. 
 
 payment of Money (q). Su P> P- 244 ' 
 
 Whereas by the judgment [or order] dated &c., it was ordered 
 that (the defendant) B. should within days after service 
 
 thereof, pay to (the plaintiff) A. the sum of , as therein 
 
 mentioned [or pay into Court to the credit of this cause &c., the 
 sum of , by the chief clerk's certificate dated &c. certified 
 
 to be due from him, on the account of &c. by the said judgment or 
 order directed]. Now upon motion this day made unto this Court 
 by counsel for the said (plaintiff) A., and upon reading the said 
 judgment [or order], an affidavit &c. filed &c., of service of the said 
 judgment [or order] upon the said (defendant) B. ; an affidavit of 
 the said (plaintiff) A. filed &c. of non-payment of the said sum of 
 [or, if so, the Chancery Paymaster's certificate, whereby 
 
 it appears that the said (defendant) B. has made default in pay- 
 ment of the said sum of into Court, pursuant to the said 
 judgment or order] ; an affidavit of &c. filed &c. of service of 
 notice of the said motion on the said (defendant) B. ; and it 
 appearing to the satisfaction of the Court that the said (defendant) 
 B. has made default in payment of the said sum of as 
 directed by the said judgment [or order], and that such default is 
 a default made by him as a trustee or person acting in a fiduciary 
 capacity, and ordered to pay a sum in his possession or under his 
 control within the meaning of the Debtors Act, 1869 ; this Court 
 doth order that the said (plaintiff) A. be at liberty to issue an 
 attachment against the said (defendant) B. for his contempt in not 
 having paid the said sum of to the said (plaintiff) A. [or 
 into Court] as aforesaid, pursuant to the said judgment [or order] ; 
 [if so : And it is ordered that the said (defendant) B. do pay to the 
 said (plaintiff) A. his costs of this application and of the said 
 attachment, such costs to be taxed &c.] 
 
 (q) This form is available only where the defaulting person owes the 
 money in a fiduciary capacity.
 
 428 APPENDIX I. 
 
 Dan. Ch. No. 70. Return of Attached and in Custody. 
 
 Forms, p. 398, 
 
 No. 1002. I have attached the within-named C. D., whose body remains in 
 
 Supra, p. 249. jj er Majesty's gaol for my county of , under my custody. 
 
 The answer of X. Y., Esquire, Sheriff. 
 
 Dan. Ch. No. 71. Return of Cepi Corpus. 
 
 Forms, p. 398, 
 
 No. 1003. I have attached the within-named 0. D., as within I am com- 
 
 Supra, p. 249. manded, whose body I have ready. 
 
 The answer of X. Y., Esquire, Sheriff. 
 
 Dan. Ch. No. 72. Return of Non est inventus. 
 
 Forms, p. 398, 
 
 No. 1004. The within-named C. D. is not found in my bailiwick. 
 
 Supra, p. 249. The answer of X. Y., Sheriff. 
 
 Ch. Forms, No. 73. 'Return of Languidus (r}. 
 
 p. 438. 
 
 Supra, p. 249. By virtue of this writ to me directed, I took the within-named 
 
 C. D. at a dwelling-house situate at , in my county, but the 
 
 said C. D. was then so sick and ill, and in so weak, infirm, and 
 debilitated a state, that he could not be taken or removed from 
 the said dwelling-house to the common gaol of my said county 
 without great peril and danger of his life ; and the said 0. D., for 
 the cause aforesaid, was kept and remained and continued, and 
 still is kept and remains and continues, in my custody in the said 
 dwelling-house so sick and ill, and in such a weak, infirm, and 
 debilitated state as aforesaid, that I cannot, without peril and 
 danger of his life, have his body before our said lady the Queen in 
 the Division of the High Court of Justice, as I am within 
 
 commanded. 
 
 Seton, 1572. No. 74. Order for Serjeant-at-Arms(s). 
 
 Supra, p. 249. 
 
 Whereas by the judgment [or order] dated, &c., it was ordered, 
 
 &c. {recite the duty required to be performed]. Now, upon motion, 
 
 (r) The returns to the writ of at- M. & "W. 758 ; Wats. Sher. p. 196. 
 
 tachment are similar to those to the (*) This order is made only after 
 
 writ of ca. sa. As to the return of a return of non est inventus. Vide 
 
 languidus, see Jones v. Robinson, 11 supra, p. 249.
 
 FORMS. 429 
 
 &c., by counsel, &c., who alleged that an attachment issued against 
 the said (defendant) B. for not, &c. [state the default], directed to 
 the sheriff of , and that the said sheriff hath returned non 
 
 eat inventus thereon; and upon reading the said judgment [or 
 order], writ, and return : This Court doth order that the serjeant- 
 at-arms attending this Court do apprehend the said (defendant) B., 
 and bring him to the bar of this Court to answer his said contempt, 
 and thereupon such further order shall be made as shall be just. 
 
 No. 75. Notice of Motion to Discharge Order for Issue of Dan. Ch. 
 
 Attachment (t\ . orms > P- 404 > 
 
 v ; No. 1022. 
 
 [Heading.'] Supra, p. 251. 
 
 Take notice, &c., on behalf of the (defendant) B. [if so, a prisoner 
 in the custody of the governor of Holloway Prison [or as may 
 le] under a writ of attachment, issued pursuant to order dated 
 the day of ,18 ], that the said order may be discharged, 
 and the said writ of attachment set aside, on the ground that [here 
 state particularly the alleged irregularity (u}], and that [if so, the 
 defendant may be discharged out of custody as to his said con- 
 tempt] : And that the (plaintiff) A. may be ordered to pay to the 
 (defendant) B. his costs of and relating to the said order and the 
 said attachment and consequent thereon, and of this application ; 
 such costs to be taxed. 
 
 No. 76. Discharge of Order for Issue of Writ of Attachment. Seton, 1595. 
 
 Whereas by an order dated, &c. [recite order for issue of writ]. ' *' 
 
 Now, upon motion, &c., of counsel for the (defendant) B., who 
 alleged that a writ of attachment was pursuant to the said order 
 issued against the said (defendant) B., and directed to the sheriff 
 of , [if so, and it appears, by the return of the said sheriff to 
 
 the said writ, that the said B. is a prisoner in his custody] for not, 
 &c. [state default for which the process issued], and that the said 
 order [if so, and writ of attachment] are irregular: And upon 
 hearing counsel for the (plaintiff) A., and upon reading the said 
 order and return, an affidavit of, &c., filed, &c. [if so, and an 
 
 (t) It is now the order which might be set aside, 
 may be discharged ; formerly, when (u) This is necessary by the ex- 
 attachment issued without leave, it press provision of 0. LXX. r. 3. 
 was frequently the writ only which
 
 430 
 
 APPENDIX I. 
 
 affidavit of service of notice of this motion to the said (plaintiff) A.] : 
 This Court doth order that the said order dated, &c., be discharged 
 [if so, and that the writ of attachment issued in pursuance thereof 
 be set aside, and that the said (defendant) B. be discharged out of 
 custody as to his said contempt]. 
 
 Dan. Ch. No. 77. Application for Habeas Corpus bv Contemnor. 
 
 Forms, p. 399, 
 
 No. 1009. [Heading.] 
 
 upra, p. . T a ]j e no tice, &c., on behalf of the defendant B. [or as may be], 
 who is now a prisoner in the custody of the sheriff of [or of 
 
 the governor of Holloway Prison, or as may be], under an attach- 
 ment issued against him for his contempt in not [state default], 
 pursuant to the judgment [or order], dated the day of , 
 
 18 , that a writ of habeas corpus cum causis may issue directed to 
 the said sheriff [or to the governor of Holloway Prison, or as may 
 be~\, at the return thereof, to bring the applicant to the bar of this 
 Court. 
 
 Supra, p. 253. No. 78. Prcecipefor Writ of Habeas Corpus. 
 
 [Heading,"] 
 
 Seal a writ of habeas corpus directed to the sheriff of [or 
 
 as may be~], to bring the defendant, 0. D., to the bar of this Court, 
 before Mr. Justice , on , the day of , 18 
 
 Order to issue the writ dated the day of , 18 . 
 
 [Name, cfec., of solicitor or party issuing the writ.~\ 
 
 Supra, p. 253. No. 79. Writ of Habeas Corpus. 
 
 [Heading. ~\ 
 Victoria, &c. 
 
 To the sheriff of [or, to the keeper of our prison of , 
 
 in the county of , or as may be~] greeting. 
 
 We command you that you do, on , the day of , 
 
 18 , bring before us in the Chancery Division of our High Court 
 of Justice the body of B., by whatsoever name, or addition of
 
 FORMS. 431 
 
 name, he is known or called, who is detained in [state place of 
 custody, as, the prison of W., in the said county of ], in your 
 
 custody, together with an account of the cause or causes of his 
 being taken into and detained in custody, to perform and abide 
 such order as our said Court shall make in this behalf ; and hereof 
 fail not, and bring this writ with you. 
 
 Witness, , Lord High Chancellor of Great Britain, the 
 
 day of , in the year of our Lord One thousand eight 
 
 hundred and eighty- 
 
 No. 80. Notice of Motion for Discharge from Custody. Dan- Oh. 
 
 Forms, p. 403, 
 [Heading.] No. 1020. 
 
 Supra, p. 254. 
 
 Take notice, that, &c., on the part of the defendant, C. D., that 
 he may be discharged out of the custody of the governor of Hollo- 
 way Prison [or as may be], as to his contempt in not [here specify the 
 act required to be done or abstained from], pursuant to the judgment 
 [or order] made in this action, and dated the day of , 
 
 18 , 
 
 No. 81. Order to Discharge Prisoner in Custody on his Seton, 1593. 
 Compliance. Su P ra > P- 254 - 
 
 [Heading.'] 
 
 Upon motion, &c., by counsel for (the defendant) B., who alleged 
 that the said B. is a prisoner in [Holloway] prison, in the custody 
 of the sheriff of , under an attachment issued against him 
 
 pursuant to the order dated, &c., for his contempt in not [state the 
 default], and that the said (defendant) B. hath since [state the com- 
 pliance'], and upon hearing counsel for the plaintiff, and upon read- 
 ing [if so, an affidavit of, &c., filed, &c., of service of notice of this 
 motion upon the plaintiff recite any other evidence] : This Court 
 doth order that the said (defendant) B. be discharged out of the 
 custody of the said sheriff as to his said contempt. And it is 
 ordered that the said (defendant) B. do pay to the (plaintiff) A., his 
 costs of this application, to be taxed, &c.
 
 432 APPENDIX I. 
 
 Seton, 1594. No. 82. Order of Discharge from Custody on Payment of 
 Supra, p. 254. Sum Qn Account O f Costs (ar). 
 
 [Heading."] 
 
 Upon motion, &c., by counsel for the defendant, B., who alleged 
 that the defendant, B., has been, by virtue of the order dated, &c., 
 a prisoner in [Holloway] prison since the day of , for 
 
 his contempt in the said order mentioned, and that he hath apolo- 
 gised for such contempt, as by his affidavits filed this day appears ; 
 and upon hearing counsel for the plaintiffs, and upon reading the 
 said order and affidavits : This Court doth order that the defendant, 
 B., do pay to Messrs. , the plaintiffs' solicitors, the sum of 
 
 , on account of their costs of the said order, dated, &c., 
 
 and of this application. And it is ordered that upon such payment 
 being made the defendant, B., be discharged out of custody (as to 
 his said contempt) (y}. And it is ordered that the costs of and 
 relating to the said order and consequent thereon, and of this appli- 
 cation, be taxed, &c. , the plaintiffs by their counsel undertaking to 
 refund to the defendant, B., the excess, if any, in case such costs 
 when taxed shall amount to less than the sum of , to be 
 
 paid on account thereof. And it is ordered that the defendant, B., 
 do pay to the plaintiffs the amount of their taxed costs, if any, 
 beyond the said sum of 
 
 Dan. Ch. No. 83. Notice of Motion for Committal to Prison for 
 
 Forms, p. 401, Conternvt 
 
 No. 1013. Contempt. 
 
 Supra, p. 261. [Heading.-] 
 
 Take notice that, &c., on the part of the plaintiff, that the defen- 
 dant B. may stand committed to Holloway Prison for [here state the 
 contempt complained of] (z), pursuant to the judgment [or order] 
 made in this action, and dated the day of , 18 : 
 
 And that the said defendant may be ordered to pay to the applicant 
 his costs of and incidental to this application, and the order to be 
 made thereon. 
 
 (x) This and the preceding pre- in question, because there may be 
 
 cedent are taken from Seton, where other causes of detention, 
 several other forms will be found. (z) Where the contempt is breach 
 
 (y) The discharge should be of an injunction, the order must be 
 
 limited to the particular contempt recited.
 
 FOKMS. 433 
 
 No. 84. Order of Committal for Special Contempt. Seton, 1587. 
 
 Supra, p. 261. 
 [Heading.] 
 
 [Recite application to the Court and evidence whereby it appeared 
 that the contempt in question was committed, care being taken to describe 
 in what particularly the contempt consisted.'] And this Court being 
 of opinion that the defendant [or as may be~] has by such conduct 
 been guilty of contempt of this Court (a), doth order that the said 
 defendant [or as may be] do stand committed to [Holloway] Prison 
 for his said contempt (b). 
 
 No. 85. Warrant to Tipstaff" to arrest Person committed for Dan. Ch. 
 
 Contemnt fc 1 ) Forms, p. 398. 
 
 empi(C). 
 
 Whereas by an order bearing date the day of , 18 , 263 
 
 made by his lordship Mr. Justice in a certain action wherein 
 
 A. is plaintiff and B. is defendant, it was ordered that [copy essential 
 part of order for committal'] : These are, therefore, in pursuance of 
 the said order to will and require you forthwith upon receipt 
 hereof to make diligent search and inquiry after the body of the 
 said , and wheresoever you shall find him to arrest and appre- 
 
 hend him, and bring him to the bar of this Court to answer his 
 contempt in the said order mentioned, willing and requiring all 
 and singular mayors, sheriffs, justices of the peace, bailiffs, con- 
 stables, jailors, headboroughs, and all other Her Majesty's officers 
 and loving subjects, to be aiding in the execution of the premises 
 as they tender Her Majesty service, and will answer the contrary at 
 their peril, and this shall be your warrant. 
 
 Dated this day of , 18 . 
 
 - , Chancellor. 
 
 To Mr. , the tipstaff attending the 
 
 Chancery Division of the High 
 Court of Justice, or his deputy. 
 
 (a) It is an essential part of the material effect of the evidence. 
 
 order that the Court should appear Vide supra, p. 261. 
 
 therein to have adjudicated upon (b) For form of order of com- 
 
 the question whether or not there mittal at common law, Reg. v. 
 
 was in fact a contempt. This is Hemsworth, 3 C. B. 745. 
 
 best done, in the manner suggested (c) See an almost identical form 
 
 in the form, by setting out the in Green v. Elgie, 5 Q. B. 99. 
 
 E.
 
 434 APPENDIX I. 
 
 B. S. C., No. 86. Prcecipefor Writ of Sequestration. 
 
 " 188- B. No. . 
 
 In the High. Court of Justice, 
 Chancery Division, 
 [name of judge"]. 
 
 Between A. B Plaintiff, 
 
 and 
 
 C. D. and others . . . Defendants. 
 
 Seal a writ of sequestration against C. D. for not [here describe 
 the default'] at the suit of A. B. directed to [here insert the names of 
 the commissioners']. 
 
 Judgment [or Order] dated day of 18 . 
 
 Dated day of , 18 . 
 
 [Name and address of solicitor or party issuing the writ.~] 
 
 E. S. C., No. 87. Writ of Sequestration. 
 
 App. H., 
 
 No. 13. [Heading.] 
 
 Supnt, Victoria, "by the grace of God, &c. To [names of not less than four 
 
 Chap. IV. commissioners'], greeting: 
 
 Vide p. 270. Whereas lately in the Division of our High Court of Justice, 
 in a certain action there depending wherein A. B. is plaintiff and 
 C. D. and others are defendants [or, in a certain matter there de- 
 pending, intituled " In the matter of E. F." as the case may be~\, by 
 a judgment [or order, as the case may be] of our said Court made 
 in the said action [or matter], and bearing date the day of 
 
 ,18 , it was ordered that the said C. D. should [pay into 
 Court to the credit of the said action, the sum of , or as the 
 
 case may be~\ : Know ye, therefore, that we, in confidence of your 
 prudence and fidelity, have given and by these presents do give to 
 you, or any three or two of you, full power and authority to enter 
 upon all the messuages, lands, tenements, and real estate whatsoever 
 of the said C. D., and to collect, receive, and sequester into your 
 hands not only all the rents and profits of his said messuages, lands, 
 tenements, and real estate, but also all his goods, chattels, and 
 personal estate whatsoever ; and therefore we command you, any 
 three or two of you, that you do at certain proper and convenient 
 days and hours go to and enter upon all the messuages, lands, 
 tenements and real estate of the said C. D., and that you do collect, 
 take, and get into your hands not only the rents and profits of his 
 said real estate, but also all his goods, chattels and personal estate, 
 and retain and keep the same under sequestration in your hands
 
 FORMS. 435 
 
 until the said C. D. shall [pay into Court to the credit of the said 
 action the sum of , or as the case may be] clear his con- 
 
 tempt, and our said Court make other order to the contrary. 
 Witness, &c. 
 
 No. 88. Motion Paper for a Sequestration. Supra, p. 272. 
 
 [Heading.'] 
 
 Take notice that, &c., on behalf of the (plaintiff) [or as the case 
 may be], on the sheriff's return to an attachment for leave to issue 
 a sequestration against the (defendant) B. for breach of the judg- 
 ment [or order], dated the day of , 18 , whereby the 
 said (defendant) was ordered to [here state substance of contempt 
 complained of]. The judgment [or order] and sheriff's return 
 accompany. 
 
 Dated the day of , 18 . 
 
 No. 89. Notice of Motion or Summons for leave to issue Dan. Ch. 
 
 Sequestration against Corporation. TC^rvM ' 
 
 {Heading.'} Supra, p. 272. 
 
 Take notice that, &c., on the part of the plaintiff [or as may be], 
 that he may be at liberty to sue out a writ of sequestration 
 directed to commissioners to be therein named, to sequester the 
 goods, chattels, and personal estate, and the rents, issues, and 
 profits of the real estate of the defendants, the company, 
 
 for contempt of this court committed by the said defendants, the 
 company, in wilfully disobeying the judgment [or order] 
 of this Court, dated the day of , 18 , whereby the 
 
 said defendant company was ordered to [set out the part of the 
 judgment or order whereof disobedience is alleged], and that the costs 
 of this application be paid by the defendants, the company. 
 
 Dated the day of , 18 . 
 
 No. 90. Notice of Motion or Summons for Examination Pro Dan. Ch. 
 
 Interesse suo. N?To43'. 412 ' 
 
 [Heading.-] Su P ra > P- 273- 
 
 Take notice that, &c., on the part of GK H., of [residence and 
 addition], that an inquiry may be made, whether the said G. H., 
 
 F F2
 
 436 APPENDIX I. 
 
 has any and what interest in the real and personal estate [or as 
 may be] sequestered by [the names of the sequestrators^, the seques- 
 trators acting under the writ of sequestration issued in this action, 
 on the day of , 18 , against the defendant, 0. D., 
 
 or in any and what part thereof. 
 
 Dated the day of , 18 . 
 
 Seton,p. 1583. No. 91. Order for Examination pro interesse suo. 
 
 Supra, p. 278. [Heading.'] 
 
 Upon motion, &c., by counsel for S., of &c. [claimant'], and upon 
 hearing counsel for the plaintiffs and for the defendant, and upon 
 reading, &c. [enter any evidence]. This Court doth order that an 
 inquiry be made whether the said S. hath any and what interest in 
 the lands and hereditaments specified in the schedule to the return to 
 the commission of sequestration issued in this cause [action], and 
 other the real estates comprised in the indentures, &c. [describe the 
 property"], sequestered by, &c., the sequestrators acting under the 
 said commission of sequestration, or any and what part thereof. And 
 it is ordered that this motion do stand over until after the chief 
 clerk shall have made his certificate of the result of the said inquiry 
 (but this order is to be without prejudice to any question as to the 
 rents of the said lands) (d). Liberty to apply. 
 
 Seton,p. 1564. No. 92. Declaration that Claimants have an Interest against 
 298 which Sequestrators cannot hold: Order to Withdraw (e}. 
 
 [Heading. ,] 
 
 Upon the application of, &c. [claiming as mortgagees^, to vary the 
 chief clerk's certificate adjourned into Court, and upon the ad- 
 
 (d) This is one of a series of four applications pro interesse suo. Each 
 orders made in the suit of Alton \. case is governed by its peculiar 
 Harrison, and set forth in Seton, circumstances, and on them de- 
 pp. 1583 et seq. In that case the pend in a great measure the par- 
 claimant, pro interesse suo, esta- ticular orders which will be made, 
 blished his claim, and, after an e. g., for protection of the seques- 
 interim order protecting the pro- tered property, injunctions against 
 perty in his hands pending the interfering with possession of the 
 inquiry, the sequestrators were sequestrators, &c. A form of order 
 ordered to withdraw. See next for withdrawal will be found, 
 Form. Walker v. Bell, 2 Mad., p. 21. In 
 
 (e) See note to preceding Form. some cases an inquiry as to damages 
 It is not proposed to give further will be ordered : Copeland v. Mape, 
 precedents or forms of orders on 2 Ba. & Be. 66.
 
 FORMS. 437 
 
 journed motion, &c. : Let the said certificate, so far as it is thereby 
 -certified that the applicants have not any interest in the several 
 goods, chattels, &c., and articles of personalty in and about the 
 house, &c., situate, &c., sequestered by the said sequestrators, nor 
 -in the lands and hereditaments comprised in the indenture dated, 
 .&c., be varied. And declare that the said [claimants'] have under 
 and by virtue of the said indenture an interest in the said several 
 goods, &c., and articles of personalty, lands and hereditaments, 
 against which the said sequestrators cannot hold. And let the 
 said sequestrators withdraw from the possession of the said several 
 goods, &c., and articles of personalty, and from the possession and 
 receipt of the rents and profits of all such parts of such lands and 
 hereditaments of which they are in possession, or in receipt of the 
 rents and profits, and they are not hereafter to receive any further 
 rents. Costs of claimants of this and their former applications, 
 and of the reference to be added to the amount due to them under 
 their security ; such costs to be taxed, &c. 
 
 No. 93. Notice to Tenant to Attorn. Dan - d- 
 
 Forms, p. 410, 
 {Heading.'} No. 1037. 
 
 We, X. Y. and T. Z., the sequestrators acting under the seques- 
 tration issued in this action on the day of , 18 , 
 against the property of the defendant, C. D., hereby give you 
 notice and require you to attorn and become tenant to us for [de- 
 scribe the property ; as thus : All that farm called the Bourne, situate 
 at , in the county of ], and for such other part or parts 
 of the real estate of the said C. D. as is or are in your occupation, 
 and to pay to us your rent in arrear, and growing rent, for the said 
 premises. 
 
 Dated this day of , 18 . 
 
 X. Y. 
 
 T. Z. 
 To G. H., of [residence and addition]. 
 
 No. 94. Attornment thereon. p an 
 
 {Heading! 
 
 I, G. H., of [residence and addition], attorn and become tenant Supra, p. 282. 
 .to X. Y. and T. Z., the sequestrators acting under the sequestra-
 
 438 APPENDIX I. 
 
 tion issued in this action on the day of , 18 , against 
 
 the property of the defendant, C. D., for All that [describe the pro- 
 perty ; see description in last form], with the appurtenances, as the 
 same are now in my occupation, To hold the same at and under 
 the same rent and subject to the same covenants and conditions as 
 I now hold the same : and I have this day paid to the said X. Y. 
 and T. Z. the sum of (one shilling) for and on account and in part 
 payment of the said rent. 
 Dated this day of , 18 . 
 
 G. H. 
 Witness, 
 
 L. M., of [residence and addition']. 
 
 Dan. Ch. Pr., No. 95. Notice of Motion or Summons for Tenant to Attorn. 
 p. 410, Form 
 
 No. 1039. \Head^ng.\ 
 
 .2S2. Takenotioe;fa . ) 
 
 Let all parties, &c. ) 
 
 on the part of the plaintiff [or as the case may be], that G. H., 
 of [residence and addition'], may be ordered within (eight) days after 
 service to attorn and become tenant for the [describe the property], 
 and to pay his rent in arrear, and growing rent, for the same to 
 X. Y. and T. Z., the sequestrators acting under the sequestration 
 issued in this action on the day of , 18 , against the 
 
 defendant, C. D. 
 
 Dated this day of , 18 . 
 
 Dan. Ch. No. 96. Affidavit in Support. 
 
 Forms, p. 411. rTr , -i 
 
 No. 1040. [Heading.] 
 
 Supra, p. 282. i. [Prove service of notice to attorn.'] 
 
 2. [If service was personal, prove production of the sequestration, as 
 thus] : at the time of the service aforesaid of the said notice, I 
 showed to the said [tenant's name] the writ of sequestration in the 
 said notice mentioned or referred to, and which said writ appeared 
 to me to have been regularly issued out of and to be under the seal of 
 the Central Office of this Honourable Court. 
 
 [Or, if the service was not personal, prove service of the sequestra- 
 tion, as thus] : at the time of the service aforesaid of the said notice, 
 I served the said [tenant's name] with the writ of sequestration 
 therein mentioned or referred to, and which appeared to me to have
 
 FORMS. 439 
 
 been regularly issued out of and to be under the seal of the Central 
 Office of this Honourable Court, by delivering to and leaving with 
 the said [state whom] a true copy of the said writ, and of the in- 
 dorsement thereon ; and I at the same time showed to the said [state 
 whom] the said writ so under seal as aforesaid. 
 
 3. [Prove service of the notice of motion or summons to attorn.] 
 
 Sworn, &c. 
 
 No. 97. Order for Tenants to Attorn to Sequestrators. Seton,p. 1581. 
 
 Supra, p. 282. 
 [Heading.] 
 
 Upon motion, &c., by counsel for the plaintiffs, who alleged that a 
 commission of sequestration issued on, &c., against the defendant 
 directed to [here insert the names of the Sequestrators], authorizing 
 them, or any two of them, to enter upon all the real estate of the 
 defendant, and to collect, receive, and sequester into their hands 
 all the rents and profits thereof ; and that, pursuant to the said 
 commission of sequestration, A. and B., two [or as the case may be] 
 of the commissioners therein named, entered upon all the lands 
 comprised in the said real estate, and situate, &c. , and in the hold- 
 ing of, &c., who refuse to attorn tenants to the said commissioners, 
 as by the return of the said commissioners of sequestration now 
 produced and read appears [or, if the fact appears otherwise, e.g. by 
 affidavit, set forth effect of evidence] : and upon reading an affidavit 
 of, &c., of service of notice of this application on the said [tenants'], 
 [or, and upon hearing counsel for the said [tenants] ] : This Court 
 doth order that the said [tenants] do within days after service 
 
 of this order attorn to and become the tenants of the said [A. and 
 B.], the said commissioners of sequestration, and pay their rents in 
 arrear, and growing rent, to the said commissioners until further 
 order. 
 
 No. 98. Order for Sequestrators to account and arrange Claims Seton,p.l580, 
 for Dilapidation, and Tenant Right. Application of Proceeds. **- 2 - 2g3 
 
 [Heading.] 
 
 Upon the application of the plaintiff, and upon hearing the soli- 
 citors for the applicant for the defendant B., and for D., the trustee 
 in bankruptcy of the said defendant, and upon reading, &c. : "Let 
 the Sequestrators, acting under the commissions of sequestration 
 issued in this cause and dated, &c. sell, at such convenient time or 
 times as they may determine upon (but so that such sale be carried 
 out on or before the day of ), all the goods, furniture.
 
 440 APPENDIX I. 
 
 plate, chattels, stock, implements, and personal estate of the defen- 
 dant B. sequestered by them, and now remaining in their posses- 
 sion ; And let them also settle and arrange with the incoming tenant 
 as to the amount to be paid by him in respect of the tenant rights 
 upon the defendant's farm, and receive such amount and give a 
 discharge for the same, and also settle with the landlord, or his 
 incoming tenant, all (if any) claims for dilapidations in and about 
 the farmhouse, buildings, and lands, occupied by the defendant ; 
 And let an account be taken of the moneys received and paid by the 
 said sequestrators under and by virtue of the said commissions, 
 including the moneys to be received or paid in pursuance of the 
 directions hereinbefore contained; And let, &c. [names], as such 
 sequestrators, within days after the filing of the chief clerk's 
 
 certificate, pay into Court to the credit of this cause, &c., 'the 
 sequestration account,' the balance which shall be certified to be 
 due from them on taking the said account ; And let the taxing 
 master tax the costs (as between solicitor and client) of the plaintiff 
 and defendant, and the costs, charges, and expenses of the said 
 sequestrators properly incurred of and relating to the execution of 
 the said commissions of sequestration, including a proper allowance 
 to them for their time and trouble " : [Direction for payment of 
 such costs, &c. , out of the proceeds when paid in :] " And let thereout 
 also the sum of , mentioned in the said sequestration 
 
 dated, &c., and the sum of , mentioned in the said seques- 
 
 tration dated, &c., making altogether the sum of , be 
 
 carried over to the credit of this cause, &c. ; " And let thereout also 
 the sum of , mentioned in the said sequestration dated, 
 
 &c., be paid to the plaintiff, and the residue of such money be paid 
 to D., as the trustee in bankruptcy of the said defendant B." 
 
 Seton,p. 1579, No. 99. Order for Sequestrators to Sell and Pay in Proceeds 
 ^ *' OR-* Taxation and Payment of Costs Power to remove Effects 
 
 Saleable and Unsaleable. 
 
 \_Heading.~] 
 
 " Upon the application of D., &c. [names], the sequestrators 
 acting under the sequestration issued in this action on the 
 day of , against the defendant H., and of the plaintiffs; and 
 
 upon hearing the solicitors for the applicants, and for the defendant 
 H. ; and upon reading the order dated, &c., an affidavit of, &c., 
 filed, &c. : Let the said [names'], the sequestrators acting under the 
 said commission, or any two or three of them, be at liberty to sell,
 
 FORMS. 441 
 
 or cause to be sold, either by public auction or private contract, the 
 household furniture, goods, chattels, and personal estate of the 
 said H., now at his residence situate, &c., and also all the share 
 and interest of the said H. , as partner with one J. , of and in all the 
 book debts, materials, tools, implements, goods, chattels, personal 
 estate, goodwill, and stock-in-trade, used in the partnership busi- 
 ness of, &c., carried on by the said H. and J. at, &c., aforesaid, 
 under the style or firm of J. and H., all of which household fur- 
 niture, goods, chattels, personal estate, and property are now under 
 the control of the said sequestrators, and that for the purpose 
 aforesaid the said sequestrators, or any three or two of them, be 
 at liberty to remove the same household furniture, goods, chattels, 
 personal estate, and property from the said residence and place of 
 business of the said H., or elsewhere soever the same may have 
 been deposited by him or on his behalf, to any convenient place in 
 the discretion of the said sequestrators." Sequestrators to pay 
 proceeds into Court, and the costs of executing the writ to be taxed, 
 and paid thereout to their solicitors, and the balance to be invested. 
 " And let the said sequestrators, or any three or two of them, be 
 at liberty to remove all unsaleable effects and property of the said 
 H. from his said residence and place of business, or elsewhere soever 
 the same may have been deposited by or on behalf of the said H. , 
 to a convenient place under the control of the said sequestrators." 
 
 No. 100. Order for Discharge of Sequestrators ( /). Seton,p. 1586. 
 
 Supra, p. 292. 
 [Heading.'] 
 
 Upon the application of, &c., and all parties by their solicitors 
 consenting to the following order [discharge, attachment, where it 
 has been issued, and] dissolve sequestration issued against the de- 
 fendant S., on, fec., for not, &c. And let the costs of the plaintiff 
 and of the sequestrators [of and incidental to the attachment, and, 
 where necessary'] the costs, charges, and expenses of and incidental 
 to the sequestration, including their costs of the application by the 
 mortgagees for the order dated, &c. (for inquiry pro interesse suo), 
 and all usual and proper allowances to the sequestrators in respect 
 of their office, and of this application, and of and incidental thereto, 
 be taxed (as between solicitor and client) in case the parties differ, 
 and be respectively retained and paid by the sequestrators as there- 
 
 (/) This is a usual order, but was made in the case of Rawlimon 
 is, of course, variable. The order v. Stringer, referred to Seton, 1586.
 
 442 APPENDIX I. 
 
 inafter mentioned. And let , &c., the said sequestrators, 
 
 withdraw from possession of the said estate of the defendant S., 
 situate at, &c. , and from the receipt of the rents and profits thereof, 
 within [time limited] from the service of this order, and within the 
 time aforesaid give notice of their withdrawal (to the tenants), and 
 be paid their costs thereof (to be taxed as between solicitor and 
 client), and included in the costs hereinbefore directed to be taxed 
 and retained. Sequestrators to leave accounts in chambers, and 
 to retain their costs, and costs, charges and expenses, when taxed 
 or agreed to, out of the monies in their hands ; and, the mortgagees 
 consenting, and abandoning the inquiry as to their interest directed 
 by the said order, sequestrators to pay what shall be found due 
 from them on the balance of their account to defendant S. within 
 [time limited], and thereupon the sequestrators to be released and 
 discharged from all liability in respect of their office. 
 
 Dan. Ch. No. 101. Motion Paper by Judgment Creditor for appointment 
 No 1678 ' f a R ece i ver by wa y of equitable Execution. 
 
 Supra, p. 313. \_Heading.~] 
 
 Take notice that, &c., on behalf of the plaintiff, that the plaintiff 
 [or L. M., of, &c.], or some other proper person, may be appointed 
 receiver, by way of equitable execution, of the rents and profits of 
 the properties of the defendant 0. D. in the indorsement on the 
 writ of summons [or in the affidavit of J. S., filed the day of 
 
 , 188 , or as may be] mentioned, with all usual directions. 
 
 An affidavit in support accompanies. 
 
 Dan. Ch. No. 102. Summons to proceed on Order directing a Receiver 
 
 Forms, p. 720, , i . j 
 
 - 16 ' 7 ^ to be appointed. 
 
 Supra, p. 313. [_Heading.~] 
 
 Let all parties, &c., on the part of the plaintiff [or as may be], to 
 proceed on the judgment [or order] dated , 188 ; and that 
 
 L. M., of [residence and addition], or some other proper person, 
 may be appointed receiver pursuant thereto.
 
 FORMS. 443 
 
 No. 103. Form of Affidavit in support of Application for Supra, p. 314. 
 Receiver. 
 
 \_Heading.~\ 
 I (g], , of , make oath and say as follows : 
 
 1. By a judgment [or order] of this Honorable Court, dated the 
 
 day of , 18 , it was adjudged that the above-named 
 
 plaintiff should recover against the above-named defendant 
 and costs, which costs were afterwards taxed and allowed at 
 [or, in the case of an order, it was ordered that the above-named 
 defendant should pay to the above-named plaintiff the sum of 
 , &c.]. 
 
 2. The said sum of is still due upon the said judgment 
 [or order], and the above-named plaintiff has received no manner 
 of satisfaction therefor [or if the amount has leen reduced either by 
 payment or a levy of part under a fi. fa., such circumstance should be 
 set forth so as to show the sum actually due]. 
 
 3. lit should always appear that the debtor has no property avail- 
 able for execution by the ordinary means. It is true that this is not abso- 
 lutely essential, vide supra, Book III. Chap. I. sect. 3, but it is a most 
 material element in guiding the judge as to the exercise of his discretion. 
 It is submitted that it is, strictly, not sufficient to set forth the fact 
 simply on information and belief, unless the source of information is 
 disclosed. Examples of the kind of evidence which may be required 
 upon this point are as follows : 
 
 On the day of , 18 , the said plaintiff sued out a writ 
 
 of fieri facias upon the said judgment [or order] directed to the 
 sheriff of , but as I am informed by the said sheriff or his 
 
 officers and believe it has been unproductive and useless by reason 
 that the defendant had no goods or chattels whereon it could be 
 executed : 
 
 The said defendant resides at , and on the day of 
 
 I proceeded to his said residence, and was informed by 
 that the said defendant was only a lodger, and had no property 
 upon the said premises, and I believe that it is useless to issue 
 against him any writ of execution for the reason that he has no 
 property available thereunder. The solicitor's clerk having know- 
 ledge of the matter might, for example, depose that he could not direct 
 the sheriff to any property available under a writ.~] 
 
 4. The said defendant is possessed of or entitled to [state the 
 property particularly, as for example: ] 
 
 (ff) It is not necessary that the It may be made by any person who 
 plaintiff should make this affidavit. can depose to the facts.
 
 444 APPENDIX I. 
 
 The six houses known as Beauchamp's Terrace, High Street, 
 Bedford [or the field or close of land known as the Way Piece, 
 situate at in the county of ], which said houses are [or 
 
 field is] of the value of or thereabouts, and produce [or 
 
 produces] the annual rent of or thereabouts. The said 
 
 premises are subject to a mortgage or charge [where possible state 
 amount and particulars, but if these facts cannot be definitely ascer- 
 tained general information and belief will often be sufficient, specially 
 if the fact that the defendant is in possession and is paying the interest 
 on the mortgage or charge, and the outgoings, can be deposed to.~\ 
 
 5. \_It is also advisable to state in ivhom the legal estate is vested, for 
 although it is competent to the Court to appoint a receiver in respect 
 both of legal and equitable estate, it is not usual to do so; vide supra, 
 p. 321. This paragraph should therefore run : ] 
 
 The said premises are, under and by virtue of the said mortgage, 
 now vested in , the mortgagee thereof, and the said premises 
 
 are not therefore available under a writ of elegit. 
 
 [Or where the charge is merely an equitable charge, not a legal mort- 
 gage:] By reason of the said premises being subject to the said 
 charge it would be expensive and inconvenient for the said plaintiff 
 to attempt to have recourse thereto by issuing a writ of elegit. 
 
 6. It is just and convenient that this Honorable Court should 
 appoint a receiver, as and by way of equitable execution, in respect 
 of the interest of the said defendant in the said premises, to receive 
 the rents and profits thereof, both as to such rents and profits as 
 have accrued and are already due, and such as shall accrue and 
 become due, but without prejudice to the rights of the said [mort- 
 gagee'] or of any other incumbrancer prior to the order appointing 
 such receiver, and as regards any incumbrancer who may be in 
 possession without prejudice to such possession. 
 
 7. \_It is always advisable to state special grounds of urgency where 
 they exist, as for example, that the defendant is pressed by creditors or 
 negotiating for the sale of his property. The following form is sug- 
 gested in Ch. Forms, p. 451, but, it is submitted, is not according to 
 present practice necessary : ] 
 
 The defendant is in pecuniary difficulties, and it is of the utmost 
 importance that an interim receiver should be appointed imme- 
 diately, and without any delay to be caused by such receiver giving 
 security (A), and without previous notice to the defendant ; and un- 
 less such receiver be so appointed and equitable execution obtained 
 in manner aforesaid, I verily believe that the defendant, by assign- 
 ing his estate or interest in the said premises on receiving notice of 
 
 (h) This clause is clearly unnecessary. Fide supra, p. 316.
 
 FORMS. 445 
 
 my application for the appointment of such receiver, will deprive 
 me of the benefit of the said judgment, and that I shall otherwise 
 lose the benefit thereof. 
 
 8. E. E. [proposed receiver] is in my judgment a fit and proper 
 person to be appointed such receiver as aforesaid. 
 
 Sworn, &c. 
 
 No. 104. Affidavit of fitness of proposed Receiver. Dan. Ch. 
 
 rrr j- -\ Forms, p. 721, 
 
 [Heading.] No _ 1682 . 
 
 I , of , make oath and say as follows : 
 
 1. I have for years past known and been well acquainted 
 with , of [residence and addition], the person proposed to be 
 appointed in this action, the receiver of the rents and profits of [set 
 forth so far as necessary the order asked for, and describe the property 
 intended to be comprised in the appointment.] 
 
 2. The said is [state the business, trade or profession of the 
 proposed receiver, and the place where carried on, and for how long, to 
 deponent's knowledge]. 
 
 3. The said is a person of respectability and integrity, and 
 of good credit, and in my judgment is a fit and proper person to be 
 appointed receiver of the said rents and profits in manner afore- 
 said. 
 
 No. 105. Order appointing Receiver on Application of a Seton, p. 414, 
 Judgment Creditor. O' 
 
 [Heading.] P- 452 - 
 
 Supra, 
 Upon hearing, &c. : Let be appointed receiver to receive (i) pp. 314, 325. 
 
 the rents and profits of [describe the property]. And let such re- 
 ceiver, on or before the day of , 18 , give security 
 
 to be approved of by the chief clerk [or one of the masters]. The 
 appointment of the said receiver is to be without prejudice to the 
 rights of any prior incumbrancer, and if any prior incumbrancer 
 is in possession, then without prejudice to such possession ; and the 
 tenants of the said real estate are, subject as aforesaid, to attorn 
 and pay their rents in arrear, and growing rents, to such receiver. 
 And let such receiver, out of the rents and profits to be received by 
 him, keep down the interest upon the prior incumbrances according 
 
 () Where the judgment is not inserted in the order "that such 
 
 sufficient to justify the receiver's receiver do not take actual posses- 
 
 acting in the ordinary manner, but sion without the leave of the Court." 
 
 is yet of sufficient amount to justify Vide supra, p. 314, n. (q). 
 the appointment, a provision is
 
 446 APPENDIX I. 
 
 to their priorities, and be allowed the same on passing his accounts, 
 and let such receiver from time to time pass his accounts [to the 
 satisfaction of one of the masters, or of the district registrar (&)], 
 and apply any balance in his hands in or towards payment and 
 satisfaction to the plaintiff of what shall for the time being be due 
 to him in respect of the judgment signed [or order made] in this 
 action on the day of for the sum of , debt, and 
 
 for costs, making together the sum of . And any 
 
 of the parties are to be at liberty to apply as there may be occasion. 
 And the costs of and incident to this application are to be added 
 to the amount of the judgment debt and paid by the receiver in 
 manner aforesaid accordingly (Z). 
 
 Dan. Ch. No. 106. Notice to Tenant to Attorn to Receiver. 
 
 Forms, p. 729, 
 
 No. 1693. [Heading.] 
 
 Supra, p. 318. i } L. M., of [residence and addition], the receiver appointed in 
 this action of the rents and profits of the real estate of A. B., the 
 testator in the writ of summons in this action named [or as may be], 
 hereby give you notice, and require you to attorn and become 
 tenant to me for [describe the property ; as thus : the messuage or 
 tenement, garden and outbuildings, with the appurtenances, now 
 occupied by you, and situate at A., in the county of B.,], and for 
 such other part or parts of the said real estate as is or are in your 
 occupation; and to pay to me your rent in arrear, and growing 
 rent, for the said premises. Dated this day of , 188 . 
 
 L. M. 
 To W. P., of [residence and addition]. 
 
 Dan. Ch. No. 107. Notice of Motion or Summons for Tenant to Attorn, 
 Forms, p. 729, , D 
 
 No. 1695. and pay Rent. 
 
 Supra, p. 319. [Heading.'] 
 
 Take notice that, &c. [or, Let all parties, &c.], on the part of the 
 plaintiff [or as may be~\, that W. P., of [residence and addition'], may 
 be ordered, within seven days after service, to attorn and become 
 tenant to L. M., the receiver appointed in this action, for or in 
 
 (/t) This is necessary when the received by the receiver by virtue 
 
 appointment is made in the Queen's of such receivership, but shall not 
 
 Bench Division. be added to the judgment debt 
 
 (I) An alternative order as to against the judgment debtor." Ch. 
 
 costs is : " And the costs of this Forms, p. 452. The form in the 
 
 order and of the receivership shall text is preferable, 
 be paid out of the money to be
 
 FORMS. 
 
 447 
 
 respect of the [describe the property : see Form, No. 93, supra], now 
 occupied by the said W. P. ; and to pay his rent in arrear, and 
 growing rent for the same, to the said L. M. 
 
 No. 108. Notice of Motion or Summons for an Examination Dan. Ch. 
 
 pro interesse suo. NcTl69& 73 ' 
 
 {Heading.'} Supra, p. 318. 
 
 Take notice that, &c. [or, Let all parties, &c.], on the part of 
 G. H., of [residence and addition], that an inquiry may be made, 
 whether the said G. H. has any and what interest in the real 
 estate [or as may be] taken possession of by L. M. as the receiver 
 appointed in this action, or in any and what part thereof. 
 
 No. 109. Receiver's Recognizance (Ord. L. r. 16). 
 
 [Name of receiver] of ; [name of first surety] of ; and 
 
 [name of second surety] of 
 
 Before our Sovereign Lady the Queen in her High Court of Jus- 
 tice personally appearing, do acknowledge themselves, and each 
 of them doth acknowledge himself to owe to [ and , 
 
 two of the chief clerks of the Chancery Di vision (m)] the sum 
 of , to be paid to the said and , or one of 
 
 them, or the executors or administrators of them, or one of 
 them, and unless they do pay the same they the said do 
 
 grant, and each of them doth grant for himself, his heirs, 
 executors and administrators, that the said sum of 
 shall be levied, recovered, and received of and from them, and 
 each of them, and of and from all and singular the manors, 
 messuages, hinds, tenements and hereditaments, goods and 
 chattels of them and each of them wheresoever the same shall 
 or may be found. Witness our said Sovereign Lady, Victoria, 
 by the grace of God of the United Kingdom of Great Britain 
 and Ireland Queen, Defender of the Faith, and so forth, at 
 the Eoyal Courts of Justice, the day of , 18 . 
 
 Whereas, by an order of the High Court of Justice made in a cause 
 wherein are plaintiffs and defendants, and dated the 
 
 E. S. C., 
 App. L., 
 No. 21. 
 
 (m) This is, of course, different 
 when the receiver is appointed in 
 the Queen's Bench Division ; there, 
 the recognizance is entered into 
 
 with two of the masters. In a 
 district registry it should be made 
 with, the district registrar or regis- 
 trars.
 
 448 
 
 APPENDIX I. 
 
 day of , it was ordered (n) that a proper person should 
 
 be appointed to receive [or, that upon the above-bounden 
 
 first giving security, he should be appointed receiver of] the 
 rents and profits of the real estate, and to collect and get in the 
 outstanding personal estate of in the said order named. 
 
 And whereas the judge to whom this cause is assigned [or the per- 
 son, master, or district registrar named in the order] hath [approved 
 of the said as a proper person to be such receiver"], and hath 
 
 approved of the above-boundeu and as sureties for the 
 
 said , and hath also approved of the above-written recogni- 
 
 zance with the underwritten condition as a proper security to be 
 entered into by the said and , pursuant to the said 
 
 order and the general orders of the said Court in that behalf ; and in 
 testimony of such approbation the chief clerk of the said judge [or 
 as may be~] hath signed an allowance in the margin hereof. 
 
 Now the condition of the above-written recognizance is such 
 that if the said do and shall duly account for all and every 
 
 the sum and sums of money which he shall so receive on account 
 of the rents and profits of the real estate, and in respect of the 
 personal estate of the said [or in the case, as here, of a receiver 
 
 appointed by way of equitable execution, of the rents and profits of, 
 describing the property~\, at such periods as the said judge [or as may 
 be] shall appoint, and do and shall duly pay the balances which 
 shall from time to time be certified to be due from him, as the said 
 Court or judge hath directed or hereafter direct, then the above 
 recognizance shall be void and of none effect, otherwise the same is 
 to be and remain in full force and virtue. 
 
 Taken and acknowledged by the above-named, &c. 
 
 (n) This is the form given in 
 the Appendix to the Rules of the 
 Supreme Court, but if the order 
 follows the form suggested above, 
 No. 105, the recognizance should 
 here f ollow : " that R. R. should 
 
 be appointed receiver to receive the 
 rents, &c. [recite order], and that 
 he should, on or before , give 
 
 security, to be approved of by , 
 &c. [a* in the order]."
 
 FORMS. 449 
 
 No. 110. Summons for Charging Order over Stock (o). 
 
 18 . B. No. . 
 In the High Court of Justice, 
 
 Division. 
 [When in Chancery Division name of Judge.'] Supra, p. 336. 
 
 Between A. B Plaintiff. 
 
 and 
 
 C. D Defendant. 
 
 And in the matter of an Act passed in the Session held in the 
 first and second years of the reign of her present Majesty, 
 chapter 110, and of the Act passed in the Session held in 
 the third and fourth years of the reign of her present Majesty, 
 chapter 82 (p). 
 Take notice, &c. \ 
 
 or, I on the part of A. B., of [address and descrip- 
 
 Let all parties, &c. /' 
 
 tiori], that the sum of [describe stock'] standing in the books 
 
 of the Governor and Company of the Bank of England [or the 
 shares standing in the books of the particular public company'], in the 
 name of C. D., of [address and description], in his own right [or as the 
 case may be (vide infra, form of affidavit, No. Ill), in trust for C. D., 
 of (address and description] ] . [ Or, that the [describe stock] , part 
 of like [stock], in Court to the credit of this action, the 
 
 account of which, by an order of this Court made in this action 
 and dated the day of , 18 , was ordered to be trans- 
 
 ferred to the said C. D. (or as the case may ie)], may stand charged 
 with the payment to the said A. B. of the sum of which by 
 
 a judgment [or order] of this Court made in a certain action wherein 
 the said A. B. was plaintiff, and the said C. D. defendant [or as 
 the case may be], the said A. B. recovered against the said C. D., 
 together with certain costs as in the judgment [or order] men- 
 tioned, and of the sum of , the amount of the costs as taxed 
 and allowed by one of the taxing masters of this Court, and 
 
 (o) Although the order nisi is has been obtained in one action in 
 
 obtained ex parte, it is usually upon any Division, and the funds are 
 
 a summons. Vide supra, p. 336. in Court to the credit of another 
 
 (p] The whole of this heading action, the summons is intituled 
 
 is variable according to circum- in both actions and in the matter 
 
 stances. Where the stock which of the Acts. Where the judgment 
 
 it is sought to charge is not in or order has been obtained in the 
 
 Court in a chancery action, and action to which the funds are 
 
 the judgment has been obtained standing to credit, the summons 
 
 in an action in the Queen's Bench must be issued and intituled in 
 
 Division, the summons is intituled that action and in the matter of 
 
 in the action and in the matter of the Acts, 
 the Acts. Where the judgment 
 
 E. GO
 
 APPENDIX I. 
 
 of interest at the rate of 4 per cent, per annum on the said sums 
 from the day of , 18 , until payment, unless the said 
 
 0. D. shall, within days after service of the order to be made 
 
 on this application [or, on or before the day of , 18 ,] 
 
 show good cause to the contrary. 
 
 Where the stock, &c., sought to be charged are not in Court, add: 
 And that the Governor and Company of the Bank of England [or 
 the said (public company}'] may be restrained from permitting a 
 transfer of the said [describe stock, &c.] in the meantime, 
 
 and until the order to be made on this application shall be made 
 absolute or discharged. 
 
 Where the stock, &c., sought to be, charged are in Court, add: And 
 that no part of the said [describe stock] may be sold, transferred, 
 paid out, or otherwise dealt with, without notice to the applicant 
 in the meantime, and until the order to be made on this application 
 shall be made absolute or discharged. 
 
 No. 111. Form of Affidavit in support of Application for 
 Charging Order over Stock. 
 
 [Heading, &c.~] 
 
 Dan. Ch. 1. The above-named defendant C. D. [or as the case may be] is 
 
 N^o'*)! 3 us ^y an d truly indebted to me in the sum of , upon and 
 
 Supra, p. 335. by virtue of a judgment [or order] in this action [or, in a certain 
 action (insert short title and reference to record of action) wherein I 
 was plaintiff and C. D. defendant], dated the day of , 
 
 18 , and whereby I recovered against the said C. D. the sum of 
 [amount of judgment debt, including costs], and which judg- 
 
 ment [or order] is still unsatisfied [if so, add : to the extent of 
 .] _ 
 
 2. There is now standing in the books of the Governor and Com- 
 pany of the Bank of England the sum of reduced 
 
 per centum annuities [or, in the books of the particular public com- 
 pany in which the shares are held shares in the said company] 
 in the name of the said C. D. in his own right [or, in the names of 
 E. F. and G. H. (address and description"), in trust for the said C. D.], 
 [or, There is now in Court to the credit of this action the sum of 
 [describing stock] part of like (stock) to the same 
 credit : The account of, &c. , which by order dated the day 
 of , 18 , was ordered to be transferred to the said C. D.] 
 
 3. I am informed and believe that the said C. D. is beneficially
 
 FORMS. 451 
 
 interested in the said (stocks or shares sought to be charged) for his 
 own use and benefit. 
 
 4. [ Where practicable justify grounds of belief.'] 
 
 No. 112. Order charging Stock Nisi. E. S. C., 
 
 App. K., 
 [Heading.'] No. 27. 
 
 Upon hearing , and upon reading the affidavit of Supra ' p ' 336> 
 
 filed the day of ,18 , whereby it appears [set fort h the 
 
 affidavit sufficiently to show amount due, and description of shares or 
 stock] : 
 
 It is ordered that, unless sufficient cause be shown to the con- 
 trary before [the judge in chambers, or, in the Chancery Division, 
 Mr. Justice ], on day the day of , 18 , 
 
 at o'clock in the noon, the defendant's interest in the 
 
 [describe stock as described in the affidavit in support] so standing as 
 aforesaid shall, and that it in the meantime do, stand charged with 
 the payment of the above-mentioned amount due on the said 
 judgment. 
 
 Dated the day of , 18 . 
 
 No. 113. Order charging Stock Absolute. E. S. C., 
 
 App. K., 
 [Heading.'] No. 28. 
 
 Upon hearing , and upon reading the affidavit of (q] filed u ^ )a> p ' 
 the day of 18 , and an order nisi made herein on the 
 day of 18 , reciting the affidavit of , whereby it appeared 
 [see recital in order nisi last Form] : It is ordered that the defendant's 
 interest in the so standing as aforesaid stand charged with the 
 
 payment of the above-mentioned amount due on the said judgment. 
 
 Dated the day of 18 . 
 
 No. 114. Form of Order in Action for Protection of Stock or Generally. 
 01 i J Vide supra, 
 
 Shares charged. p 343 et seq 
 
 [This order may run to a considerable length, for it should, where cir- 
 cumstances demand, provide for ascertaining the value of the interest 
 
 (?) As to the evidence required, vide supra, p. 335. 
 GG2
 
 452 APPENDIX I. 
 
 charged and proceed to order its sale, and, further, provide for the 
 incident inquiries. The order made in Bristed v. Wilkins (3 Ha. 
 235, see p. 239) is a good example of such an order. ] 
 
 Seton, p. 300. No. 115 Stop Order. 
 
 Supra, p. 345. 
 
 Upon the application of A. [the person who has obtained the charg- 
 ing order], and upon hearing the solicitors for the applicants and 
 for B. of , &c. [the oiuner of the beneficial interest in the stock or 
 
 shares charged], and upon reading an affidavit of filed, &c., 
 
 and the exhibit therein referred to, and the certificate of the fund ; 
 And the applicants by their solicitors submitting to be bound by 
 rule 12 of 0. XLVI : Let no part of the [describe stock], or 
 
 cash in Court to the credit of , &c., or any part 
 
 thereof, respectively, to which the said B. is or may become en- 
 titled, or of any dividends to accrue due thereon, be transferred, 
 sold, paid out, or otherwise disposed of, without notice to the said 
 A. (r). 
 
 E. S. C., No. 116. Affidavit in support of Application for Garnishee 
 
 In the High Court of Justice. 
 
 Division. 18 . No. 
 
 Between Judgment creditor, 
 
 and 
 
 Judgment debtor. 
 
 I of , the above-named judgment creditor [or, solicitor 
 for the above-named judgment creditor], make oath and say as 
 follows : 
 
 1. By a judgment of the Court given in this action and dated 
 the day of 18 , it was adjudged that I [or the above- 
 named judgment creditor] should recover against the above-named 
 judgment debtor , the sum of and costs to be taxed, 
 and the said costs were by a taxing master's certificate dated 
 the day of 18 , allowed at 
 
 2. The said still remains unsatisfied to the extent of 
 and interest amounting to 
 
 (r) For other forms of stop orders, ticular settlement, will, &c , under 
 which are, of course, variable to which the stock or shares are held, 
 suit the circumstances of the par- see Seton, 300 et seq.
 
 FORMS. 453 
 
 3. [Name, address, and description of garnishee~] is indebted (s) to 
 the judgment debtor in the sum of or thereabouts (<). 
 
 4. The said is within the jurisdiction of this Court. 
 Sworn, &c. 
 
 No. 117. Garnishee Order Nisi (Attaching Debt}. R, g. c. 
 
 18 [here put the letter and number]. 
 In the High Court of Justice. 
 Division. 
 
 in Chambers. 
 
 Between Judgment creditor, 
 
 and 
 
 Judgment debtor, 
 
 Garnishee. 
 
 Upon hearing , and upon reading the affidavit of , 
 
 filed the day of and : 
 
 It is ordered that all debts owing or accruing due from the above- 
 named garnishee to the above-named judgment debtor be attached 
 to answer a judgment recovered against the said judgment debtor 
 by the above-named judgment creditor in the High Court of 
 Justice on the day of 18 for the sum of , on 
 
 which judgment the said sum of remains due and unpaid. 
 
 And it is further ordered that the said garnishee attend the 
 in chambers on day the day of 18 at 
 
 o'clock in the noon, on an application by the said judgment 
 
 creditor, that the said garnishee may pay the debt due from him to 
 the said judgment debtor, or so much thereof as may be sufficient 
 to satisfy the judgment. 
 
 Dated the day of 18 . 
 
 No. 118. Garnishee Order Absolute. R. S. C., 
 
 18 [here put the letter and number}. App. K - 
 
 T 4.1, XT' 1, n t T Z- N - 40 - 
 
 In the High Court of Justice. Supntf p 352 . 
 
 Division. 
 
 in Chambers. 
 
 Between Judgment creditor, 
 
 and 
 
 Judgment debtor, 
 
 Garnishee. 
 
 Upon hearing , and upon reading the affidavit of , 
 
 filed the day of , 18 , and [the garnishee order nisi], 
 
 (s) It is advisable to set forth Elmit, 2 C. P. D. 9. 
 
 the manner in which the garnishee (t) Actual sum due is not es- 
 
 is indebted, so as to show that the sential. Lucy v. Wood, "W. N. 
 
 alleged debt is "a debt owing 1884,58. 
 or accruing." See Richardson v.
 
 454 
 
 APPENDIX I. 
 
 whereby it was ordered that all debts owing or accruing due from 
 the above-named garnishee to the above-named judgment debtor 
 should be attached to answer a judgment recovered against the 
 said judgment debtor by the above-named judgment creditor in the 
 High Court of Justice on the day of 18 , for the sum 
 
 of , on which judgment the said sum of remained due 
 and unpaid : It is ordered that the said garnishee do forthwith pay 
 the said judgment creditor the debt due from him to the said judg- 
 ment debtor (or so much thereof as may be sufficient to satisfy the 
 judgment debt), and that in defa,ult thereof execution may issue for 
 the same, and that the costs of this application be 
 Dated the day of , 18 . 
 
 Ch. Arch. No. 119. Order under 0. XLV., r. 5, for Issue to be tried 
 Smtm'-D'zbl' between Garnishee and Judgment Creditor. 
 
 [Heading as in preceding form."] 
 
 It is ordered that the said execution creditor and the said 
 garnishee do proceed to the trial of an issue wherein the said exe- 
 cution creditor shall be plaintiff, and the said garnishee shall be 
 defendant, and the question to be tried therein shall be whether the 
 said garnishee was indebted to the judgment debtor at the time the 
 order nisi herein was made, viz., on the . And further that 
 
 the said execution creditor do prepare and deliver the issue to the 
 defendant therein in fourteen days, and the said defendant shall 
 return same approved in seven days. And further that the said 
 issue shall be tried with a jury at the ensuing sittings at 
 And that the question of costs and any other question that may 
 arise be reserved for further order. 
 
 Ch. Arch. No. 120. Order under O. XLV., r. 5, for Special Case to be 
 
 lorms, p. 467. stated between Judgment Creditor and Garnishee. 
 
 Supra, p. 354. 
 
 [Heading as in Form No. 117.] 
 
 It is ordered that the question as to the liability of the garnishee 
 herein be tried under and by means of a special case to be agreed on 
 between the parties, such special case to be prepared by the said 
 , and submitted to the said , or his solicitor, within 
 
 days, and returned approved by the said within 
 
 days. And that any question which may arise as to the form of 
 such case be submitted to and determined by me, or the Master who 
 shall be sitting at Chambers. And that the question of costs be 
 reserved.
 
 ( 455 ) 
 
 APPENDIX II. 
 
 THE SHERIFFS ACT, 1887. 
 (50 & 51 VICT. c. 55.) 
 
 Preliminary. 
 
 1. This Act may be cited as the Sheriffs Act, 1887. Short title. 
 
 2. This Act shall not extend to Scotland or Ireland. Extent of 
 
 Act. 
 
 Appointment and Qualification. 
 
 3. (1.) A sheriff shall be annually appointed for every county. Annual ap- 
 (2.) Save as provided by this Act, a sheriff shall not hold office ^^ en ^ of 
 
 for more than one year, and a grant after the passing of this Act duration of 
 of the office for more than one year shall be void. office. 
 
 (3.) The office of sheriff or of any officer of a sheriff shall not Supra, p. 69. 
 become void by reason of the demise of the Crown, or in Cornwall 
 of the Duchy of Cornwall, but the person holding the office shall, 
 unless sooner removed or superseded, continue in office for the 
 remainder of his term, in like manner as if such demise had not 
 taken place. 
 
 4. A person shall not be appointed sheriff nor bailiff of a franchise Qualification 
 except he have sufficient land within his county or bailiwick to * sh 61 ^ 8 - 
 answer the Queen and her people. 
 
 5. A person who has been sheriff of a county for a whole year Same person 
 shall not within three years next ensuing be appointed sheriff of n * * " e . 
 that county unless there is no other person in the county qualified j^ three years, 
 to fill the office. 
 
 6. (1.) On the twelfth day of November in every year (or if that Nomination 
 
 day fall on a Sunday then on the ensuing Monday) persons fit to an( * a PPint- 
 
 ,.,,', . , , . , ,, -r, , ment of 
 
 serve as shenfls shall be nominated ior every county at the itoyal 
 
 Courts of Justice in the manner that has been heretofore used and 
 observed, and shall be so nominated by the following great officers, 
 namely, the Lord High Chancellor of Great Britain, the Lord High 
 Treasurer, or if there is no Lord High Treasurer, the Chancellor of 
 the Exchequer, the Lord President and others of Her Majesty's
 
 456 
 
 APPENDIX II. 
 
 Declaration 
 of office. 
 
 Most Honourable Privy Council, and the Lord Chief Justice of 
 England, or any two or more of such great officers, taking to them 
 the judges of Her Majesty's High Court of Justice, or any two or 
 more of them. 
 
 (2.) Whenever Her Majesty has duly pricked a person to be 
 sheriff of a county, the same shall be forthwith notified in the 
 London Gazette ; and a warrant in the form in the First Schedule 
 to this Act shall be forthwith made out and signed by the Clerk of 
 the Privy Council and transmitted by him to the person so pricked ; 
 and the appointment of sheriff so made shall be of the same effect 
 as if made by patent under the Great Seal ; and every sheriff so 
 appointed upon making the declaration of office in this Act men- 
 tioned shall by virtue of this Act only and without payment of any 
 fee have and exercise all powers, privileges, and authorities usually 
 exercised and enjoyed by sheriffs of counties in England. 
 
 (3.) A duplicate of the said warrant shall within ten days after 
 the date thereof be transmitted by the Clerk of the Privy Council 
 to the clerk of the peace of the county for which such person is ap- 
 pointed sheriff and shall be enrolled and kept by the said clerk of 
 the peace without fee. 
 
 (4.) Nothing in this section shall apply to the counties of Corn- 
 wall, Lancaster, or Middlesex. 
 
 7. (1.) Every sheriff shall, before he enters on the execution of 
 his office, make and subscribe a declaration in the form in the 
 Second Schedule to this Act or to the like effect before one of the 
 judges of Her Majesty's High Court of Justice or before a justice 
 of the peace for the county of which he is sheriff. 
 
 (2.) Every sheriff shall continue to be and act as sheriff until his 
 successor has made the said declaration and entered upon office. 
 
 Powers, Duties and Liabilities. 
 
 Powers of 
 sheriff for 
 posse comi- 
 tatus. 
 
 8. (1.) Every person in a county shall be ready and apparelled 
 at the command of the sheriff and at the cry of the country to 
 arrest a felon whether within a franchise or without, and in default 
 shall on conviction be liable to a fine, and if default be found in the 
 lord of the franchise he shall forfeit the franchise to the Queen, and 
 if in the bailiff he shall be liable besides the fine to imprisonment 
 for not more than one year, or if he have not whereof to pay the 
 fine, than two years. 
 
 Supra, p. 75. (2.) If a sheriff finds any resistance in the execution of a writ he 
 shall take with him the power of the county, and shall go in proper 
 person to do execution, and may arrest the resisters and commit
 
 SHERIFFS ACT, 1887. 457 
 
 them to prison, and every such resister shall be guilty of a misde- 
 meanour. 
 
 9. In the time of the assizes a court of quarter sessions in the Duties at 
 county may direct a sufficient number of police constables to be ass " !e8 ' 
 employed to keep order in and within the precincts of the court 
 
 of assize, and the chief constable shall comply with such direction, 
 but if such direction is not given the sheriff shall have a sufficient 
 number of men servants in liveries attending upon him. for the 
 purpose of so keeping order and of protecting the judges of assize. 
 
 10. (1.) A sheriff at the request of a person delivering a writ to Duties as to 
 him for execution shall give a receipt for that writ stating the day execution of 
 of its delivery. [Supra, pp. 77, 78.] 
 
 (2.) A sheriff shall not return to a writ that he has delivered it to Supra, p. 76. 
 a bailiff of some liberty not heretofore recorded in the Exchequer. 
 
 11. (1.) Where a sheriff or his officer or other person employed Duties on re- 
 in collecting by process from any court any debt due to the Crown, ei 
 receives from any person a sum due to the Crown he shall give a 
 
 receipt to such person for that sum ; and the sheriff, at the next 
 account after a sum due to the Crown has been paid to him or his 
 officer, shall procure the effectual discharge of the debtor paying 
 the same. 
 
 (2.) An officer of a sheriff receiving any such sum shall account 
 for it to the sheriff, and the sheriff shall give a receipt for such 
 sum. 
 
 (3.) In case of any default under this section, the sheriff and his 
 heirs, executors, and administrators, shall be liable to pay any 
 damages suffered by a debtor in consequence of such default. 
 
 12. A sheriff or any officer of a sheriff shall not return in any Duties as to 
 panel for an inquest or jury any officer or servant of the sheriff or 
 
 of such officer. 
 
 13. (1.) Where judgment of death has been passed upon a Duties as to 
 convict at any court of assize or any sessions of oyer and terminer f 3 "* 511 * 10 * 
 or gaol delivery held for any county or riding or division or other 
 
 part of a county, the sheriff of such county shall be charged with 
 the execution of such judgment, and may carry such judgment 
 into execution in any prison which is the common gaol of his 
 county, or in which the convict was confined for the purpose of 
 safe custody prior to his removal to the place where such court was 
 held, and shall, for the purpose of such execution, have the same 
 jurisdiction and powers over and in the prison in which the judg- 
 ment is to be carried into execution, whether such prison is or is 
 not situate within his county, and over the officers of such prison, 
 as he has by law over and in the common gaol of his county and
 
 458 
 
 APPENDIX II. 
 
 28 & 29 Viet. 
 c. 126. 
 
 40 & 41 Viet. 
 c. 21. 
 
 39 & 40 Viet. 
 
 c. 57. 
 
 42 & 43 Viet. 
 
 c. 1. 
 
 44 & 45 Viet. 
 
 c. 64. 
 
 Duties on 
 arrest of civil 
 debtors. 
 
 p. 246. 
 
 the officers thereof, or would have had if the Prison Act, 1865, 
 and the Prison Act, 1877, had not passed, and shall be subject 
 to the same responsibility and duties as if the said Acts had not 
 
 (2.) This section shall be in addition to and not in derogation 
 of any power authorized to be exercised by Order in Council 
 under the Winter Assizes Act, 1876, and the Spring Assizes Act, 
 1879, or either of them, and of the provisions of the Central 
 Criminal Court (Prisons) Act, 1881. 
 
 14. (1.) Where an officer being a sheriff, under-sheriff, bailiff, 
 serjeant-at-mace, or other officer whatsoever, arrests or has in 
 custody any person by virtue of any action, writ, or attachment for 
 debt, such officer shall not 
 
 (a) convey such person without his free consent to any house 
 
 licensed for the sale of intoxicating liquor, or to the private 
 house of such officer or of any tenant or relation of such 
 officer; nor 
 
 (b) charge such person with any sum for, or procure him to call 
 or pay for, any liquor, food, or thing whatsoever, except 
 what he freely asks for ; nor 
 
 (c) take such person to any prison within twenty-four hours of 
 
 the time of his arrest, unless such person refuses to be 
 
 carried to some safe and convenient dwelling-house of his 
 
 own nomination, not being the private dwelling-house of 
 
 such person, and being within the borough or town where 
 
 such person was arrested, or if he was not arrested within a 
 
 borough or town then within three miles of the place and in 
 
 the county or franchise in which he was arrested ; 
 
 but shall at all times permit such person to send for and to have 
 
 brought to him at reasonable times in the day any food or liquor 
 
 from what place he thinks fit, and also to have and use such 
 
 bedding, linen, and other necessary things as he has occasion for 
 
 or is supplied with, and shall not purloin or detain the same or 
 
 require any payment for the use thereof or restrict the use 
 
 thereof. 
 
 (2.) Every court of quarter sessions in a county shall from time 
 to time make an order allowing sums which may be taken from 
 prisoners arrested in such county on any action, writ, or attach- 
 ment, in respect of one or more nights lodging or for a day's diet 
 or for other expenses of such person, and may from time to time 
 vary such order as seems expedient. 
 
 (3.) A copy of every such order signed by the clerk of the peace 
 shall be fixed in some conspicuous place in the sessions house or
 
 SHERIFFS ACT, 1887. 459 
 
 other proper place of the county as the Court may order, so 
 that the same may be there seen and examined as occasion may 
 require. 
 
 (4.) For the purpose of making known the provisions of this 
 section, a printed copy thereof shall be delivered by every sheriff, 
 under-sheriff, secondary of the City of London, and other person 
 entrusted with causing the execution of any writ or attachment, to 
 the bailiff, serjeant-at mace, officer, or other person employed to 
 execute the same. 
 
 (5.) It shall be part of the conditions of every security given to 
 any sheriff, or under-sheriff, by any bailiff, serjeant-at-mace, 
 officer, or other person employed to execute any writ or attachment 
 under him, that such bailiff, serjeant-at-mace, officer, and other 
 person will show a printed copy of this section to every person 
 whom he arrests and goes with to any house where intoxicating 
 liquor is sold, and also will permit such person or his friend to read 
 over such copy before any liquor or food is called for or brought to 
 him, and any breach by such bailiff, serjeant-at-mace, officer, or 
 person of such condition shall be a misdemeanor in the execution 
 of the writ or attachment, besides being a breach of the conditions 
 of the security. 
 
 15. A person unlawfully imprisoned by a sheriff or any of his Liability for 
 officers shall have an action against such sheriff in like manner wrongful im- 
 as against any other person that should imprison him without ^ ri in ' 
 warrant. 
 
 16. (1.) If a person in the custody of the sheriff or any of his Liability for 
 officers or of any other person, either in execution or for non- escape- 
 performance of a judgment or order of the High Court of Justice, 
 
 or for contempt of that Court or otherwise in the course of a civil 
 proceeding, escapes out of legal custody, such sheriff or other 
 person shall be liable to pay the damages sustained by the person 
 at whose suit such prisoner was taken into custody, and all costs 
 of any action or other proceeding to recover the same, but not any 
 further sum. 
 
 (2.) A sheriff shall not be liable for the escape of any prisoner 
 when confined in any prison subject to the Prison Act, 1877. 40&41 Viet. 
 
 17. A person shall not, while he is sheriff of a county, act as a ' ' ' 
 justice of the peace for that county, and if he does so act, all his act M j^jgg 
 acts done as such justice of the peace shall be void. of the peace. 
 
 18. (1.) A sheriff shall not be bound to hold a county court Holding of 
 except where the holding of such court is required for the purpose courts. 
 
 of an election or of the due execution of some writ or for any other 
 specific purpose, in which case he shall hold a court at the time
 
 460 
 
 APPENDIX II. 
 
 Letting of 
 county. 
 
 Fees and 
 poundage. 
 
 fixed for such, purpose by law or by such writ, or if no time is so 
 fixed, as soon as is reasonably practicable after he is informed of 
 the necessity for holding such court, or receives such writ, and 
 where more than one court is required to be held for any such 
 purpose, he shall hold courts at intervals not exceeding one month 
 from each other. 
 
 (2.) A sheriff's county court shall be held at the place heretofore 
 appointed or authorized by law, or at such other place as the 
 sheriff may from time to time fix with the consent of the authority 
 having for the time being power to divide the county into polling 
 districts for the purpose of parliamentary elections. 
 
 (3.) A sheriff shall not hold pleas of the Crown, and shall not 
 under any commission or writ take any inquest whereby any 
 person is indicted. 
 
 (4.) The sheriff's tourn is hereby abolished. 
 
 19. (1.) A hundred or wapentake shall not as respects the 
 powers and duties of sheriffs be severed from the county. 
 
 (2.) A sheriff shall not let to ferm his county or any part 
 thereof. 
 
 20. (1.) A sheriff shall be entitled in respect of all sums due 
 to the Crown, and collected by him under process of any court, to 
 an allowance upon his accounts of one shilling and sixpence in 
 the pound for every sum not exceeding one hundred pounds, and 
 of one shilling for every pound exceeding the first hundred pounds. 
 
 (2.) Any sheriff or officer of a sheriff concerned in the execution 
 of process directed to the sheriff, other than process for the recovery 
 of the aforesaid sums due to the Crown, may demand, take and 
 receive such fees and poundage as may from time to time be fixed 
 by the Lord Chancellor, with the advice and consent of the judges 
 of the Court of Appeal and High Court of Justice, or any three 
 of them, and with the concurrence of the Treasury. 
 
 (3.) Any sheriff or officer of a sheriff, and any officer arresting or 
 having in custody any person by virtue of any action, writ, or 
 attachment, shall not demand or take any reward to do his office, 
 except such remuneration as is given to the sheriff by the Crown, 
 or is given to an officer of the sheriff by the sheriff, and such fees 
 and poundage as are above-mentioned or are allowed by or in pursu- 
 ance of any other Act, and, save as allowed by this Act, shall not 
 demand or take directly or indirectly any reward for doing his office 
 or duty or for abstaining therefrom, or in respect of the mode in 
 which he does his office or duty. 
 
 (4.) Where a sheriff seizes any personal estate for any sum due 
 to the Crown and dies or is superseded before he has sold the same
 
 SHERIFFS ACT, 1887. 461 
 
 and his successor sells the same, the poundage and fees due in 
 respect of the seizure and sale shall be apportioned between the 
 preceding and subsequent sheriffs in such manner and proportions 
 as a judge of the High Court of Justice may on application deter- 
 mine, having regard to the expense and trouble that each sheriff 
 had. 
 
 Accounts. 
 
 21. (1.) Every sheriff shall within two months after the expira- Transmission 
 tion of his office, or in case of the death of any sheriff the under- * ^counts of 
 
 finfiT*iTT 
 
 sheriff by him appointed shall within two months next after the 
 death of such sheriff, transmit to the Treasury a just and true 
 account under his hand 
 
 (a) of all sums received by such sheriff for the use of the Crown, 
 
 and of all sums paid or claimed by him or on his behalf (in- 
 cluding such sums as have been usually inserted in the bill 
 of cravings), with all such particulars as are needful to ex- 
 plain the same ; and 
 
 (b) of the names and residences of all persons incurring fines, 
 issues, amerciaments, forfeited recognizances, or sums of 
 money which he has been authorized to levy by virtue of any 
 writ issued to him or to any predecessor in office, and if the 
 same have not been levied, the causes of their not having 
 been levied ; 
 
 and the Treasury may grant a warrant for the allowance of the 
 sums so paid or claimed in the account, or for the payment of such 
 sum of money in respect thereof as they may think reasonable : 
 (2.) Provided as follows : 
 
 (a) a sheriff or under- sheriff shall not be imprisoned upon any 
 
 process for not finishing his accounts in due time, or for any 
 contempt or neglect in relation to his accounts, except by a 
 warrant naming such sheriff or under-sheriff and specifying 
 his offence, and issued by one of the judges of the High 
 Court of Justice ; 
 
 (b) an under-sheriff shall not be personally responsible for any 
 sum received by a deceased sheriff, but the same shall be 
 answered by the representatives of the deceased sheriff or 
 otherwise in due course of law ; and 
 
 (c) nothing in this section shall alter the right of any body 
 
 corporate or person under any charter to receive any fines or 
 other sums. 
 
 22. (1.) All accounts of sheriffs and their under- sheriffs which Audit of 
 are transmitted to the Treasury under this Act shall be examined accounts of 
 and audited by such persons and in such manner as the Treasury
 
 462 APPENDIX II. 
 
 may from time to time by warrant direct ; and the Treasury may 
 by any warrant make such, provisions in relation to the transmis- 
 sion, examination, verification, and audit of such accounts, and 
 for ascertaining and determining the balances due from and the 
 discharge of the persons accounting, as to the Treasury may seem 
 proper. 
 
 (2.) Every such warrant shall be laid before both Houses of 
 Parliament within fourteen days after the making thereof if Par- 
 liament be sitting, and if Parliament be not sitting then within 
 fourteen days after the next meeting of Parliament. 
 
 (3.) If under any such warrant it is necessary for a sheriff or 
 under- sheriff to take any oath to any account or any matter relating 
 thereto, such oath, except when the Treasury require his personal 
 examination before the person appointed by them to audit, may be 
 sworn before any judge of Her Majesty's High Court of Justice, or 
 before any master of the Supreme Court of Judicature, or before 
 any commissioner for taking oaths in the Supreme Court of Judica- 
 ture, or before any justice of the peace, 
 
 (4.) If any officer, clerk, or other person concerned in the passing 
 of sheriffs accounts by his wilful act or default hinders any sheriff 
 in passing his accounts, or obtaining his quietus, he shall make 
 such satisfaction to the party aggrieved as may be ordered by Her 
 Majesty's High Court of Justice or any judge thereof on complaint 
 made in such summary manner as the said Court may order. 
 
 Under- Sheriff and Officers. 
 
 Obligation to 23. (1.) Every sheriff shall within one month after the notifica- 
 
 appomt j.- on o k' g a pp O i n t m ent in the London Gazette by writing under his 
 
 and declara- ' hand appoint some fit person to be his uuder-sheriff, and shall 
 
 tion of office transmit a duplicate of such written appointment to the clerk of 
 
 7 ^ er the peace for the county, which shall be filed by him among the 
 
 Supra, p. 71. records of his office - 
 
 (2.) For filing such duplicate the clerk of the peace shall be en- 
 titled to demand and receive from the under-sheriff such fee as may 
 be from time to time fixed in pursuance of the enactments relating 
 to fees of clerks of the peace, and until any fee is so fixed a fee of 
 five shillings. 
 
 (3.) Every under-sheriff shall before he enters on the execution 
 of his office make a declaration in the form in the Second Schedule 
 to this Act or to the like effect before one of the judges of Her 
 Majesty's High Court of Justice, or before a justice of the peace 
 for the county for which such under-sheriff is appointed.
 
 SHERIFFS ACT, 1887. 463 
 
 24. Every sheriff shall appoint a sufficient deputy, who shall be Obligation to 
 resident or have an office within one mile from the Inner Temple appoint 
 Hall, for the receipt of writs, the granting of warrants thereon, the dent* in ^ 
 making of returns thereto, and the acceptance of all rules and London, 
 orders to be made on or touching the execution of any process or Supra, pp. 70, 
 writ to be directed to such sheriff. 77- 
 
 25. (1.) Where the sheriff of a county dies before the expiration Execution of 
 of his year of office or before he is lawfully superseded, the under- ce by 
 sheriff by him appointed shall nevertheless continue in office and on <j ea th O r 
 shall until another sheriff be appointed for the said county and has suspension of 
 made the declaration of office, execute the office of sheriff, in the 8 h er iff- 
 name of the deceased sheriff, and be answerable for the execution " ll P ra > P- 71. 
 of the said office as the deceased sheriff would by law have been if 
 
 living ; and the security given to the sheriff so deceased by the said 
 under- sheriff and his pledges shall remain and be a security to the 
 Crown and to all persons whomsoever for such under-sheriff's due 
 execution of the offices of sheriff and under-sheriff. 
 
 (2.) When it becomes the duty of an under-sheriff to act as Supra, p. 71. 
 sheriff under the provisions of this section he may by writing under 
 his hand appoint a deputy. 
 
 26. Every deputy bailiff and officer of a sheriff or under-sheriff, Declaration 
 and every other person who has authority or takes upon himself to ty kaikffs, 
 impanel or return any inquest, jury, or tales, or to intermeddle D 73 
 with the execution of writs issued by any Court of record, shall 
 
 before he does so make a declaration (which shall be exempt from 
 stamp duty) in the form in the Second Schedule to this Act, or to 
 the like effect before any judge of the High Court of Justice or 
 justice of the peace for the county or borough in which he exercises 
 such authority. 
 
 27. (1.) A person shall not directly or indirectly by himself or Sale of offices 
 by any person in trust for him or for his use buy, sell, let, or take prohibited, 
 to ferm the office of under-sheriff, deputy-sheriff, bailiff, or any 
 
 other office or place appertaining to the office of sheriff, nor 
 contract for, promise, or grant for any valuable consideration 
 whatever any such office or place, nor give, promise, or receive any 
 valuable consideration whatever for any such office or place. 
 
 (2.) Any person who acts in contravention of this section, not 
 being an under-sheriff, deputy-sheriff, bailiff or officer of a sheriff, 
 shall be liable to the same punishment as if he were an under- 
 sheriff, deputy-sheriff, bailiff, or officer. 
 
 (3.) Provided that this section shall not prevent the sheriff or 
 under-sheriff from demanding and taking the lawful fees and per- 
 quisites of the office of sheriff or of any place or employment belong-
 
 464 
 
 APPENDIX II. 
 
 Outgoing 
 sheriff to 
 turn over 
 prisoners and 
 process to in- 
 coming 
 sheriff. 
 Supra, p. 69. 
 
 Supra, p. 69. 
 
 , p. 70. 
 
 ing thereto, nor from taking security for duly answering for the 
 same, and shall not prevent any officer of a sheriff from accounting 
 to the sheriff for the fees and perquisites received by him in respect 
 of his office, nor from giving security so to account, and shall not 
 prevent a sheriff from giving nor an officer from receiving a salary 
 or remuneration for the execution of his office. 
 
 Outgoing Sheriff. 
 
 28. (1.) Every sheriff shall at the expiration of his term of office 
 make out and deliver to the incoming sheriff a correct list and 
 account under his hand of all prisoners in his custody and of all 
 rolls and writs in his hands not wholly executed by him, with all 
 such particulars as may be necessary to explain to the incoming 
 sheriff the several matters intended to be transferred to him, and 
 shall thereupon turn over and transfer to the custody of the in- 
 coming sheriff all such prisoners, rolls and writs, and all records, 
 books, and matters appertaining to the office of sheriff. 
 
 (2.) The incoming sheriff shall thereupon sign and give to the 
 outgoing sheriff a duplicate of such list and account, which shall 
 be a good and sufficient discharge to him of and from all the 
 prisoners therein mentioned and the execution of the writs and 
 other matters therein contained; and thereupon the incoming 
 sheriff shall stand charged with the said prisoners and with the 
 execution and care of the said rolls, writs and other matters con- 
 tained in the said list and account. 
 
 (3.) A sheriff shall not be called upon to make a return of any 
 writ after the expiration of six months from the date at which he 
 ceases to hold his office. 
 
 Miscellaneous. 
 
 Punishment 
 for miscon- 
 duct. 
 Supra, p. 68. 
 
 29. (1.) If a person being a sheriff, under-sheriff, bailiff, or 
 officer of a sheriff, whether within a franchise or without, does any 
 of the following things, that is to say 
 
 (a) conceals or procures the concealment of any felon ; or 
 
 (b) refuses to arrest any felon in his bailiwick ; or 
 
 (c) lets go at large a prisoner who is not bailable ; or 
 
 (d) is guilty of an offence against or breach of the provisions of 
 
 this Act, 
 
 he shall (without prejudice to any other punishment under the 
 provisions of this Act) be guilty of a misdemeanor, and be liable on 
 conviction to imprisonment for a term not exceeding one year and 
 to pay a fine, or if he has not wherewith to pay a fine, to imprison- 
 ment for a term not exceeding three years. 
 Supra, p. 160. (2.) If any person being either a sheriff, under-sheriff, bailiff, or
 
 SHERIFFS ACT, 1887. 465 
 
 officer of a sheriff, or being employed in levying or collecting debts 
 due to the Crown by process of any Court, or being an officer to 
 whom the return or execution of writs belongs, does any of the 
 following things, that is to say 
 
 (a) withholds a prisoner bailable after he has offered sufficient 
 
 security ; or 
 
 (b) takes or demands any money or reward under any pretext 
 whatever other than the fees or sums allowed by or in 
 pursuance of this or any other Act ; or 
 
 (c) grants a warrant for the execution of any writ before he has 
 
 actually received that writ ; or 
 
 (d) is guilty of any offence against or breach of the provisions of 
 
 this Act, or of any wrongful act or neglect or default in the 
 
 execution of his office or of any contempt of any superior 
 
 court; 
 
 he and any person procuring the commission of any such offence 
 shall, without prejudice to any other punishment under the pro- 
 visions of this Act, but subject as hereinafter mentioned, be 
 liable 
 
 (i.) to be punished by the Court as hereinafter mentioned ; and 
 (ii.) to forfeit two hundred pounds, and to pay all damages 
 
 suffered by any person aggrieved, 
 
 and such forfeiture and damages may be recovered by such person 
 as a debt by an action in Her Majesty's High Court of Justice. 
 
 (3.) Any of the following Courts, that is to say, Her Majesty's Supra, p. 161. 
 High Court of Justice, any court of assize, oyer and terminer or 
 gaol delivery, or any judge of any of the said Courts, also where 
 the alleged offence has been committed in relation to any writ 
 issued out of any other court of record than those above-mentioned, 
 the Court out of which such writ issued, may, on complaint made 
 of any such offence as aforesaid having been committed and on 
 proof on oath given by the examination of witnesses or by affidavit 
 or on interrogatories of the commission of the alleged offence, and 
 after hearing any thing which the alleged offender may urge in his 
 defence (which evidence and hearing may be taken and had in a 
 summary manner) punish the offender or cause proceedings to be 
 taken for his punishment in like manner as a person guilty of 
 contempt of the said Court may be punished. 
 
 (4.) The Court may order the costs of or occasioned by any such Supra, p. 161. 
 complaint to be paid by either party to the other and an order by 
 the High Court of Justice in any such summary proceeding to pay 
 any costs, damages, or penalty shall be of the same effect as a 
 judgment of the High Court, and may be enforced accordingly. 
 E. H H
 
 466 
 
 APPENDIX II. 
 
 (5.) Any of the said Courts being a superior court of record may 
 also proceed for and deal with such, offence in like manner as for 
 any contempt of such Court. 
 
 Supra,j). 161. (6.) If any person not being an under-sheriff, bailiff, or officer 
 of a sheriff, assumes or pretends to act as such, or demands or takes 
 any fee or reward under colour or pretext of such office, he shall be 
 guilty of contempt of Her Majesty's High Court of Justice, and be 
 liable to be punished in manner provided by this section as if he 
 were an under-sheriff guilty of a contempt of such Court. 
 
 Supra, p. 161. (7.) Any proceeding in pursuance of this section against a sheriff, 
 under-sheriff, or any other person to whom this section applies 
 shall be taken within two years after the alleged offence was com- 
 mitted and not subsequently, and if the proceeding is in a summary 
 manner shall be taken before the end of the sittings of the Court 
 held next after the offence was committed and not subsequently. 
 
 (8.) Nothing in this section shall render a person liable to be 
 punished twice in respect of the same offence, but if any proceed- 
 ing is taken against a person under this section for any offence the 
 Court or judge may postpone or stay such proceeding and direct 
 any other available proceeding to be taken for punishing such 
 offence. 
 
 30. (1.) Every declaration of office made under this Act by a 
 sheriff of a county or his under-sheriff shall be exempt from stamp 
 
 Filing and 
 exemption 
 
 declaration of duty and be transmitted to the clerk of the peace for the county, 
 office. and be by him filed among the records of his office. 
 
 (2.) For filing such declaration the clerk of the peace shall be 
 entitled to demand and receive from such sheriff or under-sheriff 
 such fee as may be from time to time fixed in pursuance of the 
 enactments relating to fees of clerks of the peace, and until any fee 
 is so fixed a fee of five shillings. 
 
 Application 
 of Act to 
 Westmore- 
 land and 
 Wales. 
 
 Application 
 of Act to 
 Cambridge 
 and Hunt- 
 
 Application of Act in Special Cases. 
 
 31. Save as otherwise expressly provided by this or any other 
 Act the law relating to sheriffs, inclusive of this Act and of the law 
 relating to the election of members to serve in parliament, shall 
 extend to the Counties Palatine, to the County of Westmoreland, 
 and each county in Wales in the same manner in all respects as to 
 other counties in England, and the respective sheriffs of the above- 
 mentioned counties shall have the like powers, duties, jurisdiction, 
 and liabilities, as the sheriff of any other county in England. 
 
 32. One sheriff may continue as heretofore to be appointed for 
 the counties of Cambridge and Huntingdon as if they were one 
 county.
 
 SHERIFFS ACT, 1887. 467 
 
 33. (1.) Nothing in this Act shall affect the privilege of the Saving for 
 mayor, commonalty and citizens of the city of London to elect the privileges of 
 sheriff of Middlesex and sheriffs of London. London and 
 
 (2.) Unless otherwise directed by order of Her Majesty in a PP r ?val of 
 Council, warrants signifying the approval by Her Majesty of the ghTriff^of 
 election of the sheriff of Middlesex and sheriffs of London shall be Middlesex 
 prepared under the seal of the Chancellor of the Exchequer at the and Lo^ 11 - 
 central office of the Supreme Court of Judicature, which warrants 
 may be delivered to the said sheriffs or their duly authorized agents 
 without fee on the thirtieth day of September or between that day 
 and the twelfth day of November in every year, and an entry of 
 the grant of such warrants shall be made on the roll of the Court, 
 and unless such warrant be stayed by order of Her Majesty in 
 Council on or before the said thirtieth day of September, the 
 election of such sheriff or sheriffs shall be deemed to be approved 
 by Her Majesty. 
 
 (3.) All warrants and documents relating to the said sheriff or 
 sheriffs which heretofore have been filed and recorded in the 
 central office of the Supreme Court of Judicature shall continue to 
 be so filed and recorded. 
 
 (4.) Save as aforesaid and save as regards the maintenance of 
 men servants and the duration of office, this Act shall apply to the 
 sheriff of Middlesex and sheriffs of London in like manner as to 
 any other sheriff. 
 
 34. Where a lord of a franchise or any other person or body Application 
 corporate has in any franchise, that is to say, any liberty, hundred, ?* Act to 
 franchise, or other part of a county, the return or execution of _ ' *-, 
 writs, or any other of the privileges or duties of a sheriff, the e f se g' t f or 
 following provisions shall apply to such lord, person, or body process in a 
 corporate (in this Act referred to as the bailiff of a franchise) that francnise - 
 
 is to say 
 
 (a) The bailiff of a franchise shall either hold the office himself, 
 
 or shall put in bailiffs having land in the bailiwick sufficient 
 to answer the Queen and her people, and shall answer for 
 such bailiffs; and every such last-mentioned bailiff shall 
 make the like declaration as an under-sheriff ; 
 
 (b) The sheriff of the county within which such franchise is 
 
 situate shall within one month after a request made in that 
 behalf by such lord appoint some sufficient deputy at such 
 cost to be paid by the said lord, and to reside at such con- 
 venient place in or near the franchise, as may be appointed 
 from time to time by the Lord High Chancellor of Great 
 
 HH2
 
 APPENDIX II. 
 
 Britain and the Lord Chief Justice of England or one of 
 them ; 
 
 (c) Every deputy so appointed shall reside at the said place, and 
 
 in the sheriff's name shall receive and open, when tendered 
 to him, all writs, the execution or return of which belongs 
 to the bailiff of the franchise, and shall, without delay, issue 
 to the said bailiff under the seal of the sheriff, and in such 
 manner and form as the sheriff himself ought to do, the 
 warrant required by law for the due execution of the said 
 writs ; 
 
 (d) The bailiff of the franchise and not the sheriff shall be liable 
 
 for the non-execution, mis-execution, or insufficient return 
 of any writs, or for any misconduct in the performance of 
 the said office or for any breach of the provisions of this 
 Act ; and any fine imposed on the bailiff of the franchise or 
 his bailiff or officer shall notwithstanding any grant be paid 
 to the Crown ; and 
 
 (e) All the provisions of this Act (except as hereinafter men- 
 
 tioned) and every such enactment in any other Act as 
 relates to the return of panels or juries, or to the due 
 execution of any writ, or to the taking of fees, or to any 
 extortion by sheriffs or their officers, or otherwise to the 
 office and duties of sheriffs or their officers shall, together 
 with all the liabilities, punishments and forfeitures thereby 
 imposed, extend to such bailiff of the franchise and his 
 bailiffs and officers in like manner as if he and they were a 
 sheriff or sheriff's bailiffs and officers ; provided that the 
 enactment as to the appointment and duration of office of a 
 sheriff shall not apply, and such bailiff of the franchise and 
 his bailiff shall be entitled to hold his office as long as he 
 would have been entitled if this provision had not been 
 enacted ; 
 
 Supra, p. 76. (f) In the case of the non-return of a writ, if the sheriff returns 
 that he has delivered the writ to a bailiff of a franchise, the 
 sheriff shall be ordered to execute the writ notwithstanding 
 the said franchise ; and further to cause the bailiff of such 
 franchise to attend before the High Court of Justice and 
 answer why he did not execute the said writ. 
 35. Every bailiff of a franchise within the meaning of the fore- 
 going provisions of this Act, who, in times past, has been used or 
 ought by himself or a bailiff to attend upon justices of assize or of 
 gaol delivery and justices of the peace at large in any county shall 
 continue so to attend and execute all writs directed to him for the 
 administration of justice in such franchise, and shall give his 
 
 Duties of 
 bailiffs of 
 liberties and 
 constables.
 
 SHERIFFS ACT, 1887. 469 
 
 attendance upon and assistance to the sheriff at all courts of gaol 
 delivery from time to time for the execution of prisoners. 
 
 36. (1.) The sheriff of a county of a city or a county of a town Application 
 
 other than London shall continue to he appointed in manner pro- r -~ , 
 
 vided hy the Municipal Corporations Act, 1882, and shall hold office counties of 
 
 for the term in that Act mentioned, and in the event of the death cities and 
 or incapacity of a sheriff so appointed, the council of the said city 1 
 
 or town shall forthwith appoint another fit person to execute the 45 & 45 Viet 
 office; c. 50. 
 
 (2.) A person may he appointed to be such sheriff if he have suffi- 
 cient property, whether of land or personalty, to answer the Queen 
 and her people ; 
 
 (3.) Every such sheriff shall perform the same duties as hereto- 
 fore, and may receive such fees and remuneration out of the 
 borough fund or other accustomed fund as have heretofore been 
 accustomed ; 
 
 (4.) Save as aforesaid this Act shall apply to a sheriff of a county 
 of a city or a county of a town in like manner, as nearly as may be, 
 as it applies to the sheriff of a county, and any jurisdiction by this 
 Act vested in the justices in general or quarter sessions may be 
 exercised, so far as regards constables, by the council, and so far as 
 regards other matters by the recorder of the said city or town. 
 
 37. Nothing in this Act shall be prejudicial to the rights of the Saving for 
 Crown in right of the Duchy of Cornwall, or to the Duke of Corn- ^^wall 
 wall when there is a Duke of Cornwall. 
 
 Definitions and Repeal. 
 
 38. In this Act unless the context otherwise requires Definitions. 
 The expression " the Treasury " means the Commissioners of Her 
 
 Majesty's Treasury. 
 
 The expression " county " means a county at large, and does not 
 include a county of a city or a county of a town. 
 
 The expression " writ " includes any process. 
 
 The expression " quarter sessions" includes general sessions. 
 
 39. The Acts specified in the third schedule to this Act are hereby Repeal. 
 repealed to the extent in the third column of the said schedule men- 
 tioned : 
 
 Provided that 
 
 (1.) This repeal shall not affect, 
 
 (a) anything duly done or suffered under any enactment 
 hereby repealed ; or 
 
 (b) any right acquired, or obligation or liability incurred 
 under any enactment hereby repealed ; or 
 
 (c) the right of any city or borough under any charter ; or
 
 470 APPENDIX II. 
 
 (d) any such power, right, privilege, obligation, liability, or 
 
 duty of any sheriff or officer of a sheriff as exists by 
 common law at the passing of this Act ; or 
 
 (e) any penalty or punishment incurred in respect of any 
 
 offence committed against any enactment hereby re- 
 pealed; or 
 
 (f) any legal proceeding or remedy in respect of any such 
 
 right, obligation, liability, power, right, privilege, duty, 
 penalty or punishment as aforesaid ; and any such legal 
 proceeding and remedy may be carried on and had as if 
 this Act had not been passed ; and 
 
 (2.) This repeal shall not revive or restore any jurisdiction, office, 
 duty, franchise, liberty, custom, privilege, practice, or pro- 
 cedure, or other matter or thing not existing or in force ; 
 and 
 
 (3.) Every sheriff, under-sheriff, bailiff, and officer holding office 
 at the passing of this Act shall continue to hold such 
 office, and be subject to be discharged therefrom in like 
 manner, and shall have the same privileges, and be subject 
 to the same duties and liabilities, as if this Act had not 
 passed ; and 
 
 (4.) Any warrant, order, rules, or other matter or thing made in 
 pursuance of any enactment hereby repealed shall continue 
 and be of the same effect as if made in pursuance of this 
 Act ; and 
 
 Supra, pp. (5.) Any fees or poundage authorised to be taken by or in pur- 
 
 107, 156, 159. suance of any enactment hereby repealed may continue to 
 
 be taken until altered in pursuance of this Act. 
 
 Saving for 40. (1.) Notwithstanding the repeal of any enactment by this 
 
 courts leet, ^ c ^. everv cour t leet, court baron, law day, view of frankpledge, or 
 other like court which is held at the passing of this Act shall 
 continue to be held on the days and in the places heretofore 
 accustomed, but shall not have any larger powers, nor shall any 
 larger fees be taken thereat than heretofore, and any indictment or 
 presentment found at such court shall be dealt with in like manner 
 as heretofore. 
 
 (2.) Where any enactment repealed by this Act applied to any 
 coroner, escheator, or other officer, he shall continue to be governed 
 by such enactment in like manner as if it had not been repealed ; 
 Provided that any enactment of this Act which is substituted as 
 regards a sheriff or sheriff's officer for the enactment so repealed, 
 shall apply to such coroner, escheator, or officer, in lieu of the 
 enactment so repealed.
 
 ( 471 
 
 APPENDIX III. 
 
 TABLE OF FEES. 
 
 A Table of Fees to le taken by the Sheriffs, Under- Sheriffs, 
 Deputy-Sheriffs, Sheriffs' Agents, Bailiffs, and others 
 the Officers or Ministers of Sheriffs in England and 
 Wales, pursuant to 1 Viet. c. 55 (w). 
 
 [These fees can only be levied where the sum recovered or 
 
 awarded can be levied, and therefore sheriff has no right to sell for 
 these fees only (cc).] 
 
 For every Warrant (y] which shall be granted by the she- 
 riff to his officers upon any writ or process : s. d. 
 In London and Middlesex - - 2 6 
 And on Crown (z) and outlawry process, an additional 026 
 In all other counties where the most distant part 
 of the county shall not exceed 100 miles from 
 London (a) - - 5 
 Not exceeding 200 miles - 060 
 Exceeding 200 miles - - 7 
 For an arrest in London () - 10 6 
 In Middlesex, not exceeding a mile from the General 
 
 Post Office - - 10 6 
 
 Not exceeding seven miles from the same place - 110 
 
 (M) These fees do not include Crown is annulled. Reg. Gen. 16 
 
 poundage. They are recoverable Nov. 1846. 
 
 from the execution creditor when (a) This fee is usually paid to 
 
 earned, and can be levied for. the officer by the solicitor of the 
 
 O. XLII. r. 15, vide supra, p. 158 execution creditor on lodging a 
 
 et seq. writ of fi. fa., and is included in 
 
 (x) Sneary v. Abdy, 1 Ex. D. 299. his charge of 1 : 5*. Qd. for execu- 
 
 (y) No other fees on warrants. tion. See Scott's Costs, p. 849, 
 
 See Dew v. Parsons, 2 B. & Aid. n. (b). 
 562. (i>) This table, so far as it re- 
 
 (z) So much of this table as re- lates to arrest, applies of course to 
 
 lates to process at the suit of the a writ of attachment.
 
 472 APPENDIX III. 
 
 In other counties, not exceeding a mile from the s. d. 
 
 officer's residence - - - 10 6 
 
 Not exceeding seven miles - 1 1 
 
 Exceeding seven miles - - - 1 1 1 6 
 
 For conveying the defendant to gaol from the place 
 
 of arrest - - per mile 010 
 
 For an undertaking to give a bail bond - 10 6 
 
 For a Bail Bond : 
 
 If the debt shall not exceed 50 - 0106 
 
 100 - 1 1 
 
 150 - 1 11 6 
 
 300 - 2 2 
 
 400 - 3 3 
 
 500 - 4 4 
 
 If it shall exceed - - 500 5 5 
 
 For receiving money under the statute upon deposit 
 for arrest, and paying the same into Court, if in 
 
 London or Middlesex - 6 8 
 
 If in any other county - 10 
 For filing the Bail Bond : 
 
 If the arrest be made in London or Middlesex - 020 
 
 If in any other county - 040 
 
 Assignment of Bail or other Bond : 
 
 If in London or Middlesex - - 5 
 
 If in any other county (including postage) - 7 6 
 For the return to any writ of habeas corpus, if one 
 
 action - 12 
 
 And for each action after the first - - 2 6 
 
 For the bailiff to conduct prisoners to gaol per diem 10 6 
 
 And travelling expenses - per mile 010 
 
 For searching offices for detainer (c) - 1 
 
 Bailiff's messenger for that purpose (c) - 2 6 
 
 To the bailiffs for executing warrants on extent, capias 
 tttlagatum, levari facias, fi. fa., ca. sa., ne exeat, 
 attachment, elegit, writ of possession, forfeited 
 recognizance, process from pipe office, and other 
 like matters, for each, if the distance from the 
 sheriff's office or the bailiff's residence do not 
 
 exceed five miles - 1 1 
 
 If beyond that distance (d}, per mile - 006 
 
 (c) Not chargeable on a fi. fa. 130. 
 Masters v. Lowther, 21 L. J. C. P. (d) Gill v. Jose, 6 El. & Bl. 718.
 
 TABLE OF FEES. 473 
 
 8. d. 
 
 On distringas in London - - 5 
 
 In Middlesex, not exceeding five miles from General 
 
 Post Office - 050 
 
 Exceeding five miles - 10 
 
 For each, man (e) left in possession, when absolutely 
 
 necessary (/) 
 
 If boarded - - per diem 036 
 
 If not boarded - - per diem 050 
 
 For every sale by auction, notwithstanding the defen- 
 dant should become bankrupt or insolvent, where 
 the property sold does not produce more than 300Z. , 
 5 per cent. ; 400Z., 4 per cent. ; 5001. , 3 per cent. ; 
 and where it exceeds 5001. , 2J per cent ((7). 
 For the certificate of sale to save auction duty (h) - 026 
 Bond of indemnity besides stamp - 1 10 
 
 Certificate of execution having issued for record - 050 
 On Writs of Trial and Inquiry (t) : 
 
 For a deputation - - 1 1 
 
 On lodging writ for entering cause and warrant for 
 summoning jury, which fee shall be forfeited in case 
 of countermand of trial - - 4 
 
 On Trial or Inquisition : 
 
 Sheriff for presiding - -110 
 
 Bailiff for summoning jury and attendance in Court - 040 
 And if not held at the office of the under-sheriff 
 
 For hire of room if actually paid, not exceeding - 10 
 For travelling expenses of under-sheriff from his 
 office to place where trial or inquisition held, per 
 mile 1 
 
 To the bailiff from his residence, per mile - - 6 
 
 (e) Masters v. Lowther, 21 L. J. 1 H. & C. 591) ; notwithstanding 
 C. P. 130. A second man in pos- that the Bankruptcy Act, 1883, by 
 session is seldom necessary. See sect. 145, requires the sale to be 
 Halliicell v. Heywood, 10 W. R. made by auction where the execu- 
 789; Long v. Bray, 10 W. E,. 841. tion is for a sum exceeding 201. 
 
 (f) Re Grubb, Ex parte Sims, 4 Vide supra, p. 124. The commis- 
 Ch. D. 521 ; 5 Ch. D. 375. Pos- sion is calculated on the amount 
 session retained by agreement be- realized by the sale. Davies v. 
 tween parties, Underden v. Burgess, Edmonds, 12 M. & W. 31 ; 13 L. J. 
 4 Dowl. 104 ; Levy v. Champneys, 4 Exch. 1. 
 
 Ad. & E. 365. (h) Now repealed. See 8 Viet. 
 
 (ff) It would appear that the c. 15. 
 
 sheriff has a legal right to recover () These proceedings are now 
 
 this commission, and that it covers obsolete. Formerly the sheriff had 
 
 the expenses incident to the sale, an extensive jurisdiction as judge, 
 
 such as advertisements (Braith- 1 Keeves' Hist. 361. 
 u-aite T. Marriott, 32 L. J. Ex. 24 ;
 
 474 APPENDIX III. 
 
 In all cases where it shall appear to the master that s. d. 
 a saving of expense has accrued to the parties by 
 reason of writ of trial having been executed by 
 deputation, the fee for such deputation shall be 
 allowed. 
 
 On Writs of Extent, Elegit, Capias utlagatum, and others 
 
 of the like nature : 
 For summoning jury, use of room, presiding at the 
 
 inquisition, &c. - - - - -220 
 
 Jury - - 12 
 
 For travelling expenses of under-sheriff from his office 
 
 to place of inquisition, per mile - 1 
 
 For drawing and engrossing the inquisition, per folio 016 
 For summons for the attendance of a witness- - 050 
 
 In Eeplevin : 
 
 Bond upon the same scale as the bail bond. 
 Precept to bailiff - 2 6 
 
 Notice for service on defendant - 026 
 
 Broker where the sum demanded and due shall exceed 
 20?. and shall not exceed 501. , for appraisement 
 and affidavit of value - 10 6 
 
 Where it shall exceed 501. - - 1 1 
 
 And his travelling expenses from his residence to 
 
 the place where the goods are per mile 006 
 
 Bailiff for summoning parties and delivering goods to 
 
 tenant - - 1 1 
 
 And his travelling expenses same as broker. 
 For the warrant, record, and return of a re. fa. lo., 
 accedas ad curiam pone, or writ of false judg- 
 ment - 16 6 
 For writ of retorno liabendo - - 4 6 
 For each summons on a writ of sc. fa. or for service 
 
 of writ of capias where no arrest- - 050 
 
 And mileage per mile - 010 
 
 For recording each demand or proclamation under 
 
 writs of outlawry- - 020 
 
 For bailiff for making each demand or proclamation 
 
 on writs of outlawry in London and Middlesex - 026 
 In other counties - 5 
 
 And travelling expenses if the distance shall exceed 
 
 five miles, then for every mile beyond that distance 006 
 For any supersedeas, writ of error, order, liber uti, or 
 discharge to any writ or process, or for the release
 
 TABLE OF FEES. 475 
 
 of any defendant in custody (unless in the prison of s. d. 
 the county) or of any goods taken in execution (&)- 046 
 
 For the return of any writ or process and filing same, 
 
 exclusive of the fee paid on filing - 010 
 
 For any duty not herein provided for such sum as one 
 of the masters of the Courts of King's Bench or 
 Exchequer, or one of the prothonotaries of the 
 Court of Common Pleas may upon special appli- 
 cation allow (I}. 
 
 (k) This does not apply where (I) E.g., expense of keeping 
 
 the sheriff's officer is paid out on a horses seized. Gaskell v. Sefton, 
 
 fi.fa. Masters v. Lowther, 21 L. J. 14 M. & W. 802; 15 L. J. Ex. 
 
 C. P. 130; 16 Jur. 374. 107.
 
 INDEX. 
 
 ABANDONMENT, 
 
 of goods by sheriff under fi. fa., 120. 
 
 ABATEMENT, 
 abolished, 50. 
 none after judgment, 54. 
 
 of action on death or devolution of interest, 48. 
 of suit in equity, 49. 
 
 ACCOUNTS, 
 
 of receivers, 320. 
 
 of sequestrators, 292. 
 
 of sequestrator de bonis eccles. to bishop, 205. 
 
 on elegit, 185. 
 
 ACT OF BANKRUPTCY, 
 by seizure and sale, 152. 
 execution good notwithstanding it is an, 153. 
 notice of an, its effect on execution by elegit, 192. 
 
 by ./?./., 154. 
 
 ACTION AT LAW, 
 abatement of, 48. 
 nature of, 2, 17. 
 
 ADDRESS, 
 
 of person issuing execution to be indorsed on writ, 31. 
 
 ADJUDICATION, 
 
 of contempt to be recited in order for committal, 261. 
 
 ADMINISTRATION, 
 
 stay of execution where action for, 40. 
 
 AFFIDAVIT. And see FOEMS. 
 
 copies to be served with notice of motion for attachment, 240. 
 in support of application for charging order, 335. 
 
 garnishee order, 350, 352. 
 leave to issue execution, 23.
 
 478 INDEX. 
 
 AFFIDAVIT continued. 
 
 of fitness of receiver, 314. 
 of service, on application for committal, 260. 
 of order to found attachment, 242. 
 
 AGENCY, 
 
 between receiver and person issuing execution, 320. 
 
 sheriff and person issuing execution, none, 89. 
 
 ALIAS WRIT, 58. And see FORMS. 
 none after writ executed, 105. 
 
 AMENDMENT. And see FORMS. 
 
 in Chancery, none where suit defective, 49. 
 
 of irregularity, general powers of the Courts as to, 38. 
 
 of writ in non-accordance with record, 37. 
 of proceedings in attachment, 244. 
 of return, 61. 
 
 AMOTION, 
 
 prohibited during sequestration, 206. 
 
 ANNUITY, 
 
 Apportionment Act, 1870, its effect upon, 364. 
 can be taken under sequestration, 288. 
 execution against, 130, 363. 
 secured by trust for sale of leaseholds, 309. 
 
 APPARENT POSSESSION. See POSSESSION. 
 effect of seizure on, 122. 
 meaning of, in Bills of Sale Act, 1878. . 151. 
 
 APPEAL, 
 
 execution on judgment reversed on, 92. 
 
 from inferior Court, no stay, 43. 
 
 reversal of judgment for possession on, 106. 
 
 to Court of Appeal, no stay of execution, 41. 
 
 to House of Lords, application to stay execution, 42, note (x). 
 
 APPOINTMENT, 
 
 of bailiff, 72. 
 
 of receiver, 312. And see RECEIVER. 
 
 of sheriff, 67. 
 
 APPORTIONMENT ACT, 1870, 
 
 effect on periodical payments, 364. 
 
 APPRAISEMENT, 
 
 of land extended under elegit, 185. 
 
 ARBITRATION, 
 
 agreement to refer may be made rule of Court, 5, note (p).
 
 INDEX. 479 
 
 ARRANGEMENT, 
 
 general plan of, 12. 
 subject of Book I., 15. 
 
 Book H., 209. 
 
 Book III., 295. 
 
 Book I., Chap. IV., Fieri Facias, 112. 
 
 Chap. V., Elegit, 163. 
 Book II., Chap. III., Committal, 257. 
 ARREST, 
 
 on mesne process, 4. 
 privilege from, when not available, 246. 
 under ca. sa. a discharge at law, 224. 
 
 under writ of attachment, Book II., Chap. II., sect. 2 (i), 245. 
 ASSESSMENT, 
 
 of value of goods essential for writ of delivery, 196. 
 
 ASSETS, 
 
 by descent, sect. 10 Stat. Frauds as to, 180, n. 
 infuturo, execution on judgment of, 24, 26. 
 
 ASSIGNMENT. And see FOBMS. 
 clause restraining, in lease, 130. 
 
 of debt or chose in action not seizable under,/?, fa., 133. 
 of term of years under fi. fa., 129. 
 eleait, 186. 
 
 ASSISTANCE, WRIT OF, 97, 98. 
 
 ATTACHMENT. And see FOEMS. 
 amendment of proceedings in, 244. 
 and committal contrasted, Book II., Chap. III., sect. 4. .263. 
 
 when each process used, 257. 
 application for, how made, 239. 
 arrest under, 245. 
 available against corporation, 232. 
 
 married woman trustee (query), 391. 
 
 parties only, 231. 
 bailable process, 246. 
 
 committal is not, 264. 
 costs of. See COSTS. 
 discharge of order for, 250. 
 for disobedience of injunction or mandamus, 232. 
 
 order, 232, 233. 
 
 form of order giving leave to issue, 243. 
 habeas corpus on, when obtainable, 253, 265. 
 in aid of sequestration, 276. 
 intitulation of proceedings on, 244. 
 judgment or order on which founded, 234. 
 jurisdiction of the Court as to, Book II., Chap. II., sect. 1 . .230.
 
 480 INDEX. 
 
 ATTACHMENT continued. 
 leave to issue necessary, 230. 
 method of enforcing contempt, 229. 
 no discharge to contemnor of his contempt, 224, 247. 
 of debts, Book III., Chap. III. See GABNISHEE PfioCEEDiNas. 
 of money, summary of different process for, 349. 
 of sheriff, rule absolute in first instance, 231, 239. 
 poundage not chargeable on, 255. 
 prisoner under, 247. 
 rule absolute enforceable by, 5, 231. 
 service of order on which founded, 238. 
 sheriff executes, but tipstaff excutes committal, 263. 
 showing cause against application for, 242. 
 under second process. See DETAINEE. 
 writ of, Book II., Chap. II., 229. 
 
 form of, 229. And see FOEMS. 
 
 ATTORNMENT. And see FOEMS. 
 to receivers, 320. 
 to sequestrators, 282. 
 
 AUDITA QUERELA, 
 
 abolished, Ord. XLIL, r. 27.. 40. 
 
 BANK, 
 
 deposit in a, can be garnisheed, 257. 
 
 BANK NOTES, 
 
 seizable under ^. fa., 131, 132. 
 
 BANK OF ENGLAND, 
 
 restraining by injunction, 347. 
 
 takes no responsibility on charging orders, 338. 
 
 BANKING FIRM, 
 
 execution against member of, 27. 
 
 BANKRUPTCY, 
 
 act of. See ACT OF BANKBOTTCY. 
 change of interest on plaintiff's, 52. 
 defendant's, 53. 
 effect of Act of 1883 on execution by elegit, 170, 192. 
 
 on garnishee proceedings, 373. 
 notice to sheriff of receiving order in, 153. 
 of contemnor in contempt for non-payment, 216. 
 
 effect of on sequestration, 290. 
 setting aside execution on, formerly, 37, note (d). 
 stay of execution on jurisdiction, 41. 
 
 within twelve months forfeits charge given by 1 & 2 Viet c. 110, s. 13. 
 305.
 
 INDEX. 481 
 
 BAILIFF, 
 
 appointed by undersheriff, 72. 
 
 coroner's, 71. 
 
 liability of sheriff for acts of, 74. 
 
 nominee of plaintiff, 74. 
 
 of franchise, writs directed to, 76. 
 
 second in possession not necessarily extortion, 162. 
 
 statements of, evidence against sheriff, when, 73. 
 
 warrant of, 73. 
 
 BAILMENT, 
 
 execution on things subject to, debtor bailee, 134. 
 
 bailor, 135. 
 
 BARRICADED HOUSE 
 
 belonging to third person and where goods are, 85. 
 
 BASE FEE, 
 
 taken by tenant by elegit, when, 176. 
 
 BEDDING, 
 
 and wearing apparel not seizable, 119. 
 
 BILL OF SALE, 
 
 description of, in Act of 1878. . 149. 
 necessary to transfer ship or share in ship, 126. 
 void absolutely under Act of 1882. . 151. 
 
 BILLS OF EXCHANGE, 
 
 indorsement of, under sect. 14, Jud. Act, 1884. .223. 
 seizable under fi. fa., 131. 
 
 BINDING GOODS, 
 
 effect of teste, 114. 
 
 BISHOP, 
 
 the officer for execution of writs against ecclesiastical property, 201. 
 
 BONA ECCLESIASTICA, 
 execution against, 199. 
 
 BOOKS AND DOCUMENTS, 
 
 order for production of, in aid of execution, 65. 
 
 BOUNDARIES, 
 
 of joint estate in land under inquest not set forth, 178. 
 order in action settling, is directory, 13. 
 
 BREAKING IN, 
 
 execution after, good, 85. 
 under writ of possession, 102. 
 E. II
 
 482 INDEX. 
 
 CANONRY, 
 
 cannot be taken under./?, fa., 131. 
 profits of, can be attached, 366. 
 
 CAPIAS AJD RE&PONDENDUM, 4. 
 
 CAPIAS AD SATISFACIENDUM, 
 arrest under, a discharge, 224. 
 compared with fi. fa. ,113. 
 not discussed in this work, 4. 
 
 CAPIAS UTLAGATUM, 
 
 and sequestration compared, 269. 
 
 CHANGE OF PARTIES, 
 
 after execution issued, 54. 
 
 after judgment before execution, 51. 
 
 application for, on devolution of interest, 52. 
 
 common law procedure on, 48. 
 
 costs of. See COSTS. 
 
 death or devolution of interest, 48. 
 
 equitable procedure on, 49. 
 
 four periods when it may occur, 50. 
 
 leave to issue execution on, 24. 
 
 CHARGE, 
 
 enforced by foreclosure, 306. 
 
 not the basis of equitable execution, 298. 
 
 over annuity secured by trust for sale, 309. 
 
 over ecclesiastical benefices by 1 & 2 Viet. c. 110, s. 13, none, 207, 
 
 note (e). 
 
 over land given by 1 & 2 Viet. c. 110, s. 13, Book III., Chap. I., sect. 2. . 
 303. 
 
 already extended, 308. 
 
 estates and interests of debtor subject to, 306, 308, 309, 310. 
 
 since s. 1, 27 & 28 Viet. c. 112. .307. 
 over stocks and shares. See CHARGING OEDEES. 
 
 CHARGING ORDER. And see FOBMS. 
 
 appli cation for and evidence thereon, 335. 
 date from which it operates, 341. 
 for ascertained sum only, 335. 
 foreclosure necessary to enforce, 342. 
 generally, Book III. Chap. II., 331. 
 interest in shares of debtor which can be reached by, 339. 
 not where he is executor, 340.
 
 INDEX. 483 
 
 CHARGING ORDER continued. 
 
 interest in shares of debtor which can be reached by continued. 
 
 not where interest terminable, 340. 
 
 shares "in his own right," 339. 
 interest in stock under settlement, 343. 
 intitulation of, 336. 
 
 none on order for payment into Court, 336. 
 one order only necessary when made by judge, 336. 
 order absolute, application for and evidence, 337- 
 
 appearance of company on application for, 337. 
 
 debtor showing cause against, 338. 
 order nisi, application for and evidence on, 336. 
 
 death determines, 339. 
 
 service of, 337. 
 
 varying, 336. 
 
 over shares of public company, meaning of, 335. 
 priorities under, 341. 
 
 procedure for obtaining, 1 & 2 Viet. c. 110, s. 15. .333. 
 protective proceedings within six months, 342. 
 sale under, none without foreclosure, 343. 
 
 shares of company whether incorporated or not are subject to, 335. 
 six months' delay before proceeding on, 341. 
 statutory enactments as to, 332, 333, 334. 
 stop order to assist, 342, 345. 
 
 CHEQUE, 
 
 for dividends on fund in Court, 346. 
 seizable under ji. fa., 131. 
 
 whether independently of statute (query), 133. 
 
 CHIEF CLERK, 
 
 enquiry pro interesse sno before, 280, 318. 
 ordered to execute mortgage, 223. 
 
 CHOSE IN ACTION, 
 
 meaning of term, as applied to stock, 331. 
 not seizable under fi. fa., 133 
 
 CHURCH-YARD, 
 
 not subject to elegit, 199. 
 
 CLAIMANT, 
 
 of debt in garnishee proceedings, 361. 
 
 on application pro interesse suo, position of, 279, 318. 
 
 CLERGYMEN, 
 
 execution against, Book I., Chap. VII., 199. 
 
 not exempt from ordinary law except as to bona eccksiastica, 199. 
 
 COMMISSIONERS, 
 
 under writ of sequestration. See SEQUESTRATOBS. 
 
 ii a
 
 484 INDEX. 
 
 COMMITTAL, 
 
 and attachment contrasted, Book II., Chap. III., Sect. 4.. 263. 
 
 when each process used, 257. 
 available against defaulting receiver, 231. 
 
 parties, attachment against third persons, 264. 
 discharge of irregular order for, 262. 
 for breach of injunction, 257, 258. 
 
 undertaking, 211, note (c), 263. 
 
 for special contempt where parties are interested, 260. 
 generally, Book II., Chap. III., 256. 
 habeas corpus after, none, 265. 
 imprisonment under order for, 262. 
 injunction need not be served to found, 258. 
 motion proper course for order of, 258. 
 no discharge to contemnor of his contempt, 224. 
 not bailable like attachment, 264. 
 order for, 261. And see FOBMS. 
 petition by contemnor after, 265. 
 proper remedy, when, 257. 
 
 receiving order in lieu of, under Debtors Act, 266, 
 sequestration after, 224, 289. 
 service of notice of motion for, 259. 
 tinder Debtors Act, 1869, sect. 5, for costs, 255. 
 
 generally, 266. 
 warrant of, directed to tip-staff, 262. And see FORMS. 
 
 COMPANY, 
 
 appearance of, on proceedings for charging order, 337. 
 
 in liquidation, execution against, 27, 359. 
 
 lien of, over shares, 345. 
 
 party to foreclosure, action as to shares, 344. 
 
 public, what is, 335. 
 
 restrained from transferring stock, 347. 
 
 shareholder of, execution against, 24, 27. 
 
 CONDITIONAL, 
 
 debt cannot be garnisheed, 359. 
 judgment, waiver of, 21. 
 execution on, 22. 
 
 leave to issue, 23. 
 
 CONSILERATUM EST, 
 the form, 3. 
 
 CONSOLIDATED ORDERS, 
 
 XXIX. r. 3, committal and attachment, 231, 264. 
 
 XXX. r. 3, serjeant at arms, 231, 264. 
 XXXV. r. 32, entry of orders, 30, 233. 
 
 CONTEMPT See ATTACHMENT ; COMMITTAL. 
 
 bankruptcy of person in, for non-payment of money, 216.
 
 INDEX. 485 
 
 CONTEMPT continued. 
 
 by disobedience of the Great Seal, 210. 
 rule absolute, 5, 211. 
 
 Debtors Act, 1869, does not affect question of, 220. 
 dismissal of action where plaintiff remains in, 226. 
 disobedience of judge's order at law not a, 212. 
 for non-payment of money execution, 217. 
 for non-delivery of land, untouched by Debtors Act, 1869 . . 220. 
 interference with receiver, 319. 
 
 sequestrator, 277. 
 sequestrator de bon. eccles., 205. 
 sheriff on writ of possession, 104. 
 sheriff's officers, 74. 
 jurisdiction in, at law, 211. 
 
 land delivered under writ of possession instead of process for, 221. 
 liability of sheriff to, 68. 
 
 for extortion, 82, 161. 
 for return falsifying record, 61. 
 
 married woman not liable in, after order against separate estate, 380. 
 must be cleared before contemnor can be heard, 225. 
 nature of, Book II., Chap. I., 210. 
 ordinary, 211. 
 
 performance of order instead of process for, 222. 
 practice in equity on, varied by 1 & 2 Viet. c. 110. .9. 
 right of party to process for, Barlee v. Bar lee, 213. 
 
 effect on this, of 1 & 2 Viet. c. 110, s. 18. .217. 
 in case of judgments for payment of money, 216. 
 limitation of, where contempt special, 215. 
 modification of, by statutory execution, 222. 
 
 by other pertinent remedy, 215. 
 special, 213, 260. 
 
 remedy for, where parties are interested, 260. 
 
 COPYHOLDS, 
 
 extendible under 1 & 2 Viet. c. 110, s. 11 . . 166, 183. 
 
 under sequestration, 284. 
 CORONER, 
 
 bailiff s of, 71. 
 
 writs directed to, when, 70. 
 
 CORPORATION, 
 
 charging order against share in. See CHABCHNO OEDEE. 
 
 order against, enforceable by attachment, 232. 
 
 sequestration, 273. 
 COSTS, 
 
 direction as to, in fi. fa., 111. And see FOBMS. 
 
 imprisonment for non-payment of, 255. 
 
 interest on, from when it runs, 32.
 
 486 INDEX. 
 
 COSTS continued. 
 
 no subpoena to issue for, 274. 
 
 non-payment of, dismissal of action for, 226, note (i). 
 
 of contempt, discharge, 227. 
 of advertisement of sale under ./&. fa., 160. 
 of application to commit for extortion, 161. 
 to compel return of writ, 63. 
 of attachment, 244. 
 of change of parties, 24, 53. 
 
 of charging order, 1 & 2 Viet. c. 110, s. 15.. 334. 
 of claimants under proceedings pro interesse suo, 293. 
 of company appearing on application for charging order, 338. 
 
 on foreclosure of shares, 344. 
 of discontinuance, 112. 
 of discovery in aid of execution, 66. 
 of elegit added to judgment debt, 186. 
 
 how recovered, 194. 
 of execution can be levied, 159, 160. 
 
 on bankruptcy of debtor, 160. 
 of garnishee proceedings generally, 374. 
 
 where third party successful, 363. 
 of inquisition on elegit, 194. 
 
 of mandamus carried into effect by plaintiff, 0. XLII. r. 30. .223. 
 of party applying on change of parties, 53. 
 of sequestration generally, 292. 
 of sequestrators provided for out of rents, 281. 
 of stay of execution, 43. 
 
 of trustees of stock claiming priority to charging order, 344. 
 security for, on sale under redemption action, 302. 
 separate execution for, O. XLII. r. 18. . . 109. 
 
 on order for possession, 111. 
 sequestration for, on leave, 274. 
 untaxed, no charging order for, 336. 
 
 COUNTER-CLAIM, 
 
 by garnishee against debtor, 371. 
 
 COURT OF APPEAL, 
 
 jurisdiction of, to stay execution, 42. 
 
 power of judges of, and relation to execution, 10. 
 
 COURTS, 
 
 consolidation of, of common law and equity by Judicature Act, 1, 10. 
 theory of jurisdiction of, 2 6. 
 
 CREDITOR, 
 
 liability of, compared with that of sheriff, 86. 
 for malicious prosecution, 87.
 
 INDEX. 487 
 
 DAMAGES, 
 
 in malicious execution, 88. 
 necessary to sustain action against sheriff, 80. 
 to goods, sheriff's right of action for, 122. 
 to third, persons by sequestrators, 276. 
 treble, for extortion, now abrogated, 156. 
 
 DATE 
 
 of issue to be inserted in writ of execution, 32. 
 
 DEATH, 
 
 change of interest on. See DEVOLUTION OP INTEEEST. 
 of debtor pendente lite, 51, note (/). 
 test of agency of sheriff, 90. 
 
 DEBTORS ACT (1869), 32 & 33 VICT. c. 62. See TABLE OP STATUTES. 
 committal under, transferred to Bankruptcy, 266. 
 effect of sect. 4 on process for contempt, 218. 
 General Order under r. 3, as to sequestration, 273. 
 meaning of " debt, or instalment of any debt," 267. 
 
 DEBTORS ACT (1878), 219. 
 
 DEBTS 
 
 due to contemnor under sequestration, 287. 
 See GAENISHEE PBOCEEDJNOS. 
 
 DECLARATORY JUDGMENTS AND ORDERS, 
 nature of, and no execution thereon, 13. 
 none formerly in equity, 13. 
 statutory enactments as to, 14. 
 
 DECREE IN EQUITY, 
 
 compared with judgment, 7. 
 
 discussion of, 6. 
 
 Ellesmere's (Lord) description of, 7. 
 
 effect over property, 7. 
 
 execution on, general nature of, 8. 
 
 for delivery of specific chattel, 195. 
 
 legal methods of execution applied to, 8. 
 
 DEED, 
 
 execution by master in lieu of person ordered, 222. 
 
 DELAY, 
 
 one year no bar to execution, 44. 
 
 DELIVERY, 
 
 decree for, of specific chattel, 195. 
 oiji.fa. to be executed, 77, 115. 
 
 effect of, as to binding goods, 118.
 
 488 INDEX. 
 
 DELIVERY continued. 
 
 of land in execution, condition precedent to a sale, 302. 
 
 effect of, upon charge tinder sect. 13, 1 & 2 Viet. 
 
 c. 110. .307. 
 upon elegit, 190. 
 
 under elegit consists of return to inquisition, 172. 
 effect of, as regards registration, 189. 
 of possession under writ of possession, 102, 103. 
 of specific chattel, process for contempt for, 221. 
 
 DELIVERY, WRIT OF. And see FOBMS. 
 form, 198. 
 
 generally, Book I., Chap. VI., 195. 
 
 none on interlocutory judgment, until writ of enquiry, 197. 
 not framed to enforce equitable orders, 197. 
 not issuable for fourteen days after judgment, 47. 
 recital of change of parties in, 52. 
 under Common Law Procedure Act, 1854. . 196. 
 
 DEMAND, 
 
 before execution not necessary, 21. 
 
 made of solicitor's clerk only, execution set aside, 21. 
 
 of rent by landlord to sheriff, 140. 
 
 DEPUTY, 
 
 delivery of writ to, " to be executed," 77. 
 sheriff's, to be appointed in London, 70. 
 service on, 70, note (u). 
 
 DETAINER, 
 
 under second writ of attachment, 247. 
 
 DETINUE, 
 
 execution on judgment in, 195. 
 
 DEVOLUTION OF INTEREST, 
 
 after execution issued, 54. 
 
 application to change parties on, 52. 
 
 between charging order nisi and order absolute, 339. 
 
 defendant's interest after execution issued, 55. 
 
 judgment, before execution, 53. 
 seizure under fi. fa., 55. 
 executor's right to proceed on death, 115. 
 of parties to inquisition under elegit, 54, note (r), 137. 
 plaintiff's interest after execution issued, 54. 
 
 judgment, before execution, 52. 
 DIES NON, 
 
 writ returnable on Sunday formerly void, 59, note (a) . 
 
 DIRECTORY JUDGMENTS AND ORDERS, 
 
 no execution necessary on, 12.
 
 INDEX. 489 
 
 DISCHARGE, 
 
 by seizure under fi.fa., 123. 
 
 compulsory, from custody, 228. 
 
 contempt must be cleared before, 226. 
 
 from custody, general statutable power with reference to insolvent con- 
 
 temnor, 227. 
 
 imprisonment under attachment is not a, 247. 
 of bankrupt no discharge of sequestration, 291. 
 of contemnor after year's imprisonment, 225, 254. 
 
 seizure by sequestrators, 227. 
 in custody, on his bankruptcy, 216. 
 of garnishee, 370. 
 of order for committal, 262. 
 
 serjeant-at-arms, 250. 
 writ of attachment, 250. 
 of sequestration, 292. 
 priority of motion for, of attachment, 251. 
 writ of, 69. 
 
 DISCONTINUANCE, 
 
 fi. fa. for costs on, 112. 
 
 DISCOVERT, 
 
 against garnishee, 355. 
 
 application for order for, 65. 
 
 attachment on disobedience of order for, 233. 
 
 examination on order for, 65. 
 
 order for, in aid of execution, 0. XLIL r. 32. .351. 
 
 service of order for, 65. 
 
 DISMISSAL OF ACTION, 
 
 of person in contempt, 226. 
 
 DISPOSING POWER, 
 
 construction of the words, 179. 
 
 lands subject to, can be extended, 178. 
 
 leaseholds subject to sale not included, 309. 
 
 DISTRESS, 
 
 against property subject to receiver, 323. 
 
 none by receiver without leave or attorninent, 320. 
 
 none where goods are seized, 129. 
 
 over growing crops notwithstanding sale, 139. 
 
 under writ of delivery (distringas), 197. 
 
 DISTRICT REGISTRY, 
 
 issue of writ of execution from, 77.
 
 490 INDEX. 
 
 VISTKINGAS, 
 
 and sequestration compared, 269. 
 issued on judgment in detinue, 195. 
 notice in lieu of writ of, 347. 
 
 LISTRINGAS NUPER VICE-COMITEM, 
 issues under, what they are, 145, note (). 
 writ of, when available, 145, 197. 
 
 DIVERGENCE BETWEEN WRIT AND RECORD. See RECOED. 
 as to amount, 37. 
 
 as to change of parties to be shown, 35, 36. 
 misnomer in judgment followed in writ, 36. 
 
 DIVIDENDS, 
 
 bankruptcy cannot be garnisheed, 358. 
 
 on fund in Court chargeable under order, 346. 
 
 on stock subject to settlement, 343. 
 
 under winding-up cannot be garnisheed, 359. 
 
 DIVINE SERVICE, 
 
 to be provided for by sequestrator de ban. eccics., 204. 
 
 EJECTMENT, 
 action for, 95. 
 
 estoppel of judgment in, 97. 
 
 formerly ordered on application pro interesse SHO, 279. 
 judgment in, 95. 
 
 moulding, 99. 
 
 not necessary to complete tenant's title under ekgit, 174. 
 purchaser of terms of years in execution can bring, 129. 
 verdict in, general, 101. 
 
 ELEGIT, 
 
 accounts under, 185. 
 
 action of ejectment not necessary to complete title, 174. 
 and^. fa. on bankruptcy of judgment debtor, 192. 
 completion of execution under, 173. 
 extension of, by 1 & 2 Viet. c. 110, s. 11 . .165, 166. 
 . estates extendable under. See ESTATES. 
 form, 167. And see FOEMS. 
 formerly essential to equitable execution, 297. 
 founded by stat. West. II. c. 118. . 165, 166. 
 goods not extendible under 46 & 47 Viet. c. 52, s. 146. .85. 
 issue of, andj6. fa. simultaneously, 47, 169. 
 
 subject to statutable conditions, 169. 
 inquest under, 171. 
 interest can be levied under, 185.
 
 INDEX. 491 
 
 ELEGIT continued. 
 
 land bound by, whenever acquired, 188. 
 
 land delivered under, cannot be taken under a second writ, 191. 
 
 subject to charge of 1 & 2 Viet. c. 110, s. 13. .308. 
 land, legal estates in, only extendible, 174. 
 no other writ of execution after, 170. 
 not abateable, 54, note(r). 
 not adaptable where debtor mortgagee, 308. 
 not available for payment into Court, 109. 
 not issuable against remainder, 178. 
 not necessary before equitable execution, 303. 
 on judgment against public body, 176. 
 option between, and./?, fa. not in the issuing, 169. 
 over lands in possession of tenants, 174. 
 possession not taken under, 181, n. 
 poundage on, 193. 
 
 poundage and fees on, cannot be levied (query), 160. 
 " price " the word in writ now unnecessary, 168, note (). 
 recital of change of parties, 52. 
 sale of land extended, under Conveyancing Act, 1881 .. 301. 
 
 taken under, by petition, 301. 
 second elegit after first (query), 171. 
 Semay tie's Case does not now extend to, 85. 
 term of years extendible under, 129. 
 tenant by, in position of mortgagee in possession, 185. 
 
 accounting by, 185. 
 
 estate taken by, subject to equitable estates, 175. 
 
 position of, after inquisition, 173. 
 
 trust estates which cannot be taken under. See TEUBT ESTATES. 
 why so called, 164. 
 
 ELISOES, 
 
 writs directed to, when, 70. 
 
 ENTRY, 
 
 of attachment of debts, 373. 
 
 of judgments, 30. 
 
 of orders made in Chancery chambers, 233. 
 
 EQUITABLE EXECUTION. See RECEIVES. 
 
 by action is a delivery in execution within 27 & 28 Viet. c. 112. .200. 
 elegit formerly essential to, 297. 
 
 not now necessary before, 303. 
 equitable estates acquired after judgment, 298. 
 generally, Book III., Chap. I., 296. 
 motion for sale of land in redemption action, 301. 
 petition for sale of lands under, 300. 
 prior to 1 & 2 Viet. c. 110. .296. 
 redemption was the form taken by, 298.
 
 492 INDEX. 
 
 EQUITABLE MORTGAGE, 
 
 ranks before elegit, 175. 
 
 EQUITY OF REDEMPTION, 
 
 cannot be taken under elegit, 181. 
 
 not seizable under fi. fa., 136. 
 
 receiver of, whether in land or goods, 322. 
 
 value of, evidence on appointment of receiver, 314. 
 
 ESTATE, 
 
 charged under sect. 13 of 1 & 2 Viet. c. 110. .308. 
 conditional, of tenant by elegit, 184. 
 equitable, not bound by judgment, 299. 
 extendible under ekgit : copyholds, 183. 
 
 equitable under Stat. Frauds, 180. 
 
 1 & 2 Viet. c. 110.. 181. 
 
 for life, 176. 
 
 for years, 183. 
 
 in coparcenery or in common, 178. 
 
 in fee, 175. 
 
 joint, 178. 
 
 pur autre vie, 177. 
 
 reversion, 177. 
 
 but not remainder, 178. 
 
 tail, 176. 
 
 of execution creditor in land taken under elegit, 183. 
 pur autre vie saleable under Ji. fa., 131. 
 tail chargeable by action, 310. 
 
 taken in execution, is subject to prior equitable estate, 175. 
 what may be taken under elegit, 174. 
 
 ESTOPPEL, 
 
 of judgment in ejectment, 96, 97. 
 
 EVIDENCE, 
 
 in support of application for attachment, 242. 
 
 charging order, 335. 
 
 execution against partners, 29. 
 
 garnishee order, 352. 
 
 receiver, 314. 
 
 on inquest under elegit, 172. 
 undersheriffs' and bailiffs' statements admissible, against sheriff, 72. 
 
 EXAMINATION. See DISCOVEEY. 
 
 EXECUTION, 
 
 at law, general nature of, 4, 163. 
 
 Austin's proposal as to discussion of subject of, 4, note (k). 
 
 damage in, creditor's liability for, 86.
 
 INDEX. 493 
 
 EXECUTION continued. 
 
 different modes of, issuable on judgments and orders, 20. 
 
 discovery in aid of. See DISCOVEBY. 
 
 equitable, Book III., Chap. I., 296. 
 
 generally, O. XLIL, 19. 
 
 in equity, 8. 
 
 irregular, setting aside, 37. 
 
 issue of, forthwith after judgment, 21. 
 
 legal, applied to decrees, 8. 
 
 malicious, and liability of person moving, 88. 
 
 of instrument by person ordered under sect. 14, Jud. Act, 1884. .223. 
 
 by one of the masters in name of contemnor, 222. 
 separate, for costs, 109. 
 statutable methods of, generally, 12. 
 stay of. See STAY OF EXECUTION. 
 substitutionary, Book II., Chap. I., sect. 3.. 222. 
 writ of. See WEIT OF EXECUTION. 
 writs of all kinds issuable simultaneously, 48, 60, note (k). 
 
 generally, Book I., Chap. I., 16. 
 
 practice, how issued, 33. 
 
 EXECUTOR, 
 
 garnishee proceedings against, 361. 
 
 holding shares, they cannot be charged by order against him personally, 
 
 361. 
 
 must pay costs of change of parties, 24. 
 right of, to proceed when testator has died after teste, 115. 
 
 EXTORTION, 
 
 remedy for, under 50 & 51 Viet. c. 55, a. 29. . 160. 
 
 by action, 82. 
 
 by process for contempt, 161. 
 
 by indictment, 162. 
 second man in possession not necessarily, 162. 
 
 FALSE RETURN, 
 
 action against sheriff for, 80, 82. 
 
 damages must be shown, 81. 
 to writ of possession, 103. 
 
 FARMING STOCK, 
 
 sale under Jl. fa., 125. 
 
 FEES, 
 
 levy for, 159. 
 
 Serjeant at arms must be paid his, 250. 
 
 sheriffs, list of prepared under 1 Viet. c. 55. .158, 471.
 
 494 INDElC." 
 
 FEES continued. 
 
 sheriff's, other than poundage, 158, 193. 
 on writ of possession, 107. 
 person liable for, 159. 
 
 FELLOWSHIP, 
 
 emoluments of, attachable, 366. 
 
 FIERI FACIAS, 
 
 abandonment of goods taken under, 120. 
 
 and clegit compared with reference to bankruptcy, 192. 
 
 issued simultaneously, 47, 169. 
 and lev. fa. available at common law, 112. 
 annuity saleable under, 363. 
 
 secured by leaseholds cannot be seized under, 309. 
 canonry cannot be seized under, 131. 
 cheques, &c., seizable under, 131. 
 costs on. See COSTS. 
 
 debtor bailee, his saleable interest can be sold under, 134. 
 bailor, his saleable interest can be sold under, 135. 
 discharge of debtor by levy under, 123. 
 estate pur autre vie saleable under, 131. 
 farming stock seized under, and its sale, 125. 
 fees on, 158. And see APPENDIX III., p. 471. 
 for costs, 111. 
 form of, 110. And see FORMS. 
 
 variable, 111. 
 
 Frauds, Statute of as to, sect. 16 and its construction, 114. 
 goods "bound by," meaning of, 114. 
 " goods and chattels " in writ, meaning of, 112. 
 growing crops seized under, liable to accruing rent, 139. 
 hiring agreement, debtor's interest saleable under, 134. 
 history of, 108, note (a). 
 issuable for non-payment of money, Ord. XIII. r. 17. . 108. 
 
 into each county where defendant has goods, 109. 
 legal property only, can be taken under, 136. 
 lien of debtor not saleable under, 134. 
 meaning of, in Stat. West. II. Elegit, 164, note (b). 
 Mercantile Law Amend. Act, s. 1, effect of, onjl.fa., 115. 
 money, notes, bills, &c., seizable under, 131. 
 not issuable for payment into Court, 109. 
 nothing can be seized under, which could not be sold, 113. 
 on judgment in detinue, 195. 
 policies of assurance seizable under, 133. 
 possession of sheriff under, 123. 
 poundage on, 155. 
 
 priority of, fixed by Stat. Frauds, s. 16. .117. 
 proceeds of execution under, payable to creditor, 136.
 
 INDEX. 495 
 
 FIERI FACIAS continued. 
 
 property available under (Book I., Chap. IV., s. 1), 112. 
 
 receiver of stock in trade in lieu of, 323. 
 
 removal of goods seized under, sheriff's duty, 120. 
 
 rentcharge saleable under, 130. 
 
 returns to. See RETURN. 
 
 sale under, 124. 
 
 seizure under, crucial point with respect to purchaser, 115. 
 
 effect of, as to debtor's discharge, 123. 
 
 insufficient, 120. 
 
 what is, 119. 
 
 separate for costs, Ord. XLII. r. 18. . 111. 
 sheriff's duty under, to seize, 119. 
 
 to sell, 124. 
 
 ships seizable and saleable under, 127. 
 specialties or other securities for money under, 131, 133. 
 terms of years under, 128. 
 
 sale of, 129. 
 
 FIERI FACIAS DE BONIS ECCLESIASTICIS, 
 form of return to, 201, 207. And see FORMS. 
 when issuable, 200. 
 
 FIERI FECI, 
 
 return of, 137. 
 
 FIRM, 
 
 cannot be garnishee debtor, 352. 
 execution against, 127. 
 judgment against, effect of, 28. 
 form of, 28. 
 leave to issue against member of, 28. 
 
 FORECLOSURE, 
 
 and redemption should be claimed by judgment creditor, 311. 
 
 orders in directory, 12. 
 charging order enforced by, 342. 
 
 parties to action, 343. 
 
 enforcing charge under 1 & 2 Viet. c. 110, s. 13. .306. 
 judgment in, not included in "judgment for recovery of land," 98, note(<?). 
 originating summons for, by tenant by elegit, 175. 
 parties to. See PARTIES. 
 
 parties to action for, to enforce charge over land, 307, 311. 
 sale under. See SALE. 
 unnecessary where fund in Court, 346. 
 
 FORMS APPENDIX I. 
 
 ACCOUNTS, 
 
 summons for, under elegit (No. 50), 416. 
 
 order for taking account under elegit (No. 51), 417.
 
 496 INDEX. 
 
 FORMS continued. 
 AFFIDAVIT, 
 
 in support of motion for tenants to attorn to sequestration (No. 96), 
 
 438. 
 
 in support of application for receiver by creditor (No. 103), 433. 
 of fitness of receiver (No. 104), 445. 
 
 in support of application for charging order (No. Ill), 450. 
 in support of application for garnishee order (No. 116), 452. 
 
 AT.TAB WEIT (No. 17), 400. 
 
 AMENDMENT, summons for, of irregular execution (No. 8), 396. 
 ASSIGNMENT of leaseholds under fi. fa. (No. 34), 407. 
 ATTACHMENT of debts. See G-arnishee Order, infra. 
 
 ATTACHMENT, WEIT OF, 
 
 prsecipe of (No. 63), 424. 
 
 form (No. 64), 425. 
 
 summons for leave to issue (No. 67), 426. 
 
 order for issue of (No. 68), 426. 
 
 order for issue of, for non-payment of money (No. 69), 427. 
 
 returns to (Nos. 70, 71, 72, and 73), 428. 
 
 motion to discharge order for (No. 75), 429. 
 
 order for discharge of order for (No. 76), 429. 
 
 ATTOENMENT, 
 
 notice to tenant under sequestration (No. 93), 437. 
 
 form of, under sequestration (No. 94), 437. 
 
 motion for tenant to attorn to sequestrators (No. 95), 438. 
 
 affidavit in support of motion (No. 96), 438. 
 
 order for tenants to attorn to sequestrators (No. 97), 438. 
 
 notice to tenant to attorn to receiver (No. 106), 446. 
 
 motion for tenant to attorn and pay rent to receiver (No. 107), 447. 
 
 CHAEOINQ OEDEE, 
 
 summons for (No. 110), 449. 
 
 affidavit in support of application for (No. Ill), 450. 
 
 nisi (No. 112), 451. 
 
 absolute (No. 113), 451. 
 
 order protecting stock charged by (No. 114), 451. 
 
 COMMITTAL, 
 
 motion for (No. 83), 432. 
 
 order of, for special contempt (No. 84), 433. 
 
 warrant on (No. 85), 433. 
 
 DELIVEET, WEIT OF, 
 
 prsecipe for (No. 52), 418. 
 form of (No. 53), 418. 
 
 combined with fi. fa. (No. 54), 418. 
 
 including damages, costs, and interest (No. 55), 419.
 
 INDEX. 497 
 
 FORMS continued. 
 DEMAND, 
 
 for performance of conditional judgment (No. 1), 393. 
 to sheriff for rent on execution (No. 38), 409. 
 
 DISCHARGE FROM CUSTODY, 
 
 motion for (No. 80), 431. 
 
 order for, on compliance (No. 81), 432. 
 
 on payment of costs (No. 82), 432. 
 DlSTRINGAS NUPER VICE-COMITEM. 
 
 prsecipe for (No. 43), 411. 
 
 form (No. 44), 411. 
 
 summons to increase issues taken under (No. 45), 412. 
 ELEGIT, WRIT OF, 
 
 prsecipe (No. 46), 413. 
 
 form (No. 47 j, 413. 
 
 returns to (Nos. 48, 49), 414, 415. 
 
 accounts under, summons for (No. 50), 416. 
 
 EUSOBS, direction of writ to (No. 21), 402. 
 
 EXAMINATION, 
 
 motion for, pro interesse suo (No. 90), 435. 
 
 order for, pro interesse suo (No. 91), 436. 
 
 of judgment debtor (No. 20), 436. 
 FIERI FACIAS, 
 
 prsecipe for (No. 31), 405. 
 
 fdrm (No. 32), 406. 
 
 form on order for costs (No. 33), 406. 
 
 assignment of leaseholds under (No. 34), 408. 
 
 returns to (Nos. 35, 36, 37), 408, 409. 
 
 FIERI FACIAS DE SONIS ECCLESIASTICIS, 
 prsecipe of (No. 57), 420. 
 form (No. 58), 420. 
 
 form directed to Archbishop during vacancy of see (No. 59), 421. 
 warrant from bishop on (No. 61), 422. 
 
 GARNISHES ORDER, 
 
 affidavit in support of application for (No. 116), 452. 
 order nisi (No. 117), 453. 
 
 absolute (No. 118), 453. 
 
 for issue between garnishee and creditor (No. 119), 454. 
 
 for special case to try garnishee's indebtedness (No. 120), 454. 
 
 HABEAS CORPUS, 
 
 application for (No. 77), 430. 
 prsecipe for writ of (No. 78), 430. 
 form of writ (No. 79), 430. 
 
 INDORSEMENT on copy judgment for service (No. 65), 425. 
 E. K K
 
 498 INDEX. 
 
 FORMS continued. 
 
 LEAVE TO ISSUE EXECUTION, 
 
 summons under 0. XLII. r. 9 (6) (No. 2), 393. 
 on change of parties (No. 3), 394. 
 after lapse of six years (No. 4), 394. 
 against shareholder (No. 7), 395. 
 order giving leave to issue (No. 5), 394. 
 
 and to carry on proceedings (No. 6), 395. 
 MANDATE of sheriff to bailiff of liberty (No. 22), 402. 
 NON OMITTAS, clause of (No. 24), 403. 
 PLTJEIES WBIT (No. 18), 401. 
 POSSESSION, WEIT OF, 
 
 prsecipe (No. 25), 403. 
 
 form (No. 26), 403. 
 
 returns to (Nos. 27, 28), 404. 
 
 summons to confine execution (No. 29), 404. 
 
 order to restore possession (No. 30), 405. 
 
 RECEIVES, 
 
 motion for, by creditor (No. 101), 442. 
 
 summons to proceed on order appointing (No. 102), 442. 
 
 affidavit in support of motion for, by creditor (No. 103), 443. 
 of fitness of receiver (No. 104), 445. 
 
 order appointing, on application of creditor (No. 105), 445. 
 
 recognizance of (No. 109), 447. 
 RENEWAL of writ of execution (No. 16), 400. 
 KENT, 
 
 notice to sheriff that rent due (No. 38), 409. 
 
 from sheriff that rent due (No. 39), 409. 
 RESTOBATION of possession, order for (No. 30), 405. 
 RETUEN, 
 
 notice to sheriff to return writ (No. 19), 401. 
 
 mandavi ballivo (No. 23), 403. 
 
 that no person came to take possession (No. 27), 404. 
 
 that possession has been delivered (No. 28), 404. 
 
 fieri fed (No. 35), 408. 
 
 nutta bona (No. 36), 408. 
 
 fieri fed as to part, nulla bona residue (No. 37), 409. 
 
 goods in hands for want of buyers (No. 40), 410. 
 
 nihil to elegit (No. 48), 414. 
 
 lands delivered under elegit, and the inquisition (No. 49), 415. 
 
 nulla bona, and that defendant is a beneficed clerk (No. 56), 419. 
 
 attached and in custody (No. 70), 428. 
 
 cepi corpus (No. 71), 428. 
 
 non est inventus (No. 72), 428. 
 
 languidws (No. 73), 428.
 
 INDEX. 499 
 
 FORMS continued. 
 
 SEQUESTRARI FACIAS DE BOXIS EOCLESIASTICIS, 
 prsecipe of (No. 57), 420. 
 form (No. 60), 421. 
 warrant from bishop on (No. 62), 423. 
 SEQUESTEATION, 
 
 prsecipe for (No. 86), 434. 
 form (No. 87), 434. 
 motion paper for (No. 88), 435. 
 leave to issue, against corporation (No. 89), 435. 
 order for sequestrators to withdraw (No. 92), 436. 
 account (No. 98), 439. 
 sell and pay in proceeds (No. 99), 440. 
 discharge of sequestrators (No. 100), 441. 
 SEBJEANT-AT-ABMS, order for, 428. 
 SETTING ASIDE EXECUTION, summons for (No. 15), 400. 
 STAY OF EXECUTION, 
 
 summons for (No. 9), 397. 
 
 on facts arising too late to be pleaded (No. 10), 397. 
 pending petition for winding up (No. 11), 398. 
 after winding-up order has been made (No. 12), 398. 
 pending appeal (No. 13), 399. 
 order for, pending appeal (No. 14), 399. 
 STOCK OE SHAKES, supra, "Charging Order." 
 
 order for protection of, when charged (No. 114), 451. 
 STOP OBDEB (No. 115), 452. 
 
 SUBSTITUTED SEEVICE, order for, of judgment or order (No. 66), 426. 
 VENDITIONI EXPONAS, 
 
 prsecipe of (No. 41), 410. 
 form (No. 42), 411. 
 WAEEANT, 
 
 from bishop oujl.fa., de bonis eccles. (No. 61), 422. 
 seq. fa. de bonis eccles. (No. 62), 423. 
 to tipstaff on order for committal (No. 85;, 433. 
 
 FORTHWITH, 
 
 sufficient expression of time under Ord. XLI. r. 5. .235. 
 
 FRANCHISE, 
 
 description of, 75. 
 
 execution by sheriff notwithstanding, 76. 
 
 execution within, 76. 
 
 Sheriffs Act, 1887, as to, 76. 
 
 FRAUDS, STATUTE OF. See under TABLE OF STATUTES. 
 
 FRAUDULENT CONVEYANCE, 
 
 sheriff's position with respect to, 148. 
 KK2
 
 500 INDEX. 
 
 FUND IN COURT, 
 
 charging order over, to be left at Chancery Pay Office, 337. 
 
 receiver in respect of, 324. 
 
 stop order over, in aid of charging order, 345. 
 
 GARNISHEE. See GABNISHEE PBOCEEDINGS. 
 cannot be a firm, 352. 
 debtor, examination of, under Ord. XLII. r. 32. .66. 
 
 GARNISHEE PROCEEDINGS, 
 
 application for order ex parte, 350. 
 
 affidavit on, 350. See FOBMS. 
 to whom made, 352. 
 
 assignee of judgment debt can take, 351, note (r). 
 attachment book to be kept by officer, 373. 
 bankruptcy of debtor, effect of, 373. 
 costs of. See COSTS. 
 debts attachable under, 
 
 ascertained sum, 356. 
 
 debitum in prcesenti solvendum infuturo, 360. 
 
 equitable debts, 360. 
 
 legacy, 360. 
 
 not conditional debt, 359. 
 
 debt affected by trust, 361. 
 dividends in bankruptcy or liquidation, 358. 
 superannuation allowance, 368. 
 unliquidated sum, 356. 
 where due to debtor and another, 357. 
 where verdict recovered only, 358. 
 owing or accruing, 356. 
 payable by instalments, 352. 
 pensions. See PENSIONS. 
 rent, 360, 372. 
 salary. See SALARY. . 
 sum recoverable by action, 357. 
 discharge of garnishee, 370. 
 
 by payment into Court, 371. 
 examination of debtor prior to, 351. 
 issue as to liability of garnishee, 354. See FOBMS. 
 order in, discussed, 352. 
 by default, 359. 
 
 effect of, as to " binding" the debt, 370, 371. 
 form of, 354. See FOBMS. 
 origin of, 350, note (p). 
 priorities in, 372.
 
 INDEX. 501 
 
 GARNISHEE 
 
 service of order nisi, 353. 
 
 set-off or counterclaim by garnishee, 371. 
 
 third person claiming in, 362. 
 
 GLEBE LANDS, 
 
 not seizable under elegit, 199. 
 
 GOODS AND CHATTELS, 
 
 bound from teste of /./., 114. 
 meaning of , 'va.fi. fa., 112, 113. 
 under sequestration, and their sale, 285. 
 
 GREAT SEAL, 
 
 disobedience to, 210. 
 
 GROWING CROPS, 
 
 expense of cutting, 160. 
 
 seizable under ft. fa. subject to accruing rent, 139. 
 
 GUARDIAN, 
 
 order appointing, is directory, 13. 
 
 HABEAS CORPUS. 
 
 different kinds of, 253. 
 issued on reasonable cause shown, 252. 
 none on order for committal, 265. 
 return to, 254. 
 
 HALF-PAY, 
 
 cannot be attached, 365. 
 
 HIRING AGREEMENT, 
 
 debtor's interest under, seizable, 134. 
 
 HUSBAND, 
 
 entitled or liable to execution, leave to issue, 24. 
 
 to enforce wife's judgment, where, 26. 
 liability of, on judgments against wife, 25. 
 
 separate and joint with wife since Act of 1882 . . 389. 
 
 when married between 30th July, 1874, and 1st January, 
 
 1883.. 25, 382. 
 
 since 31st December, 1882.. 25, 385. 
 party to suit in respect of separate estate, when, 378. 
 position of, at law, as regards rights of action against wife, 376. 
 as regards wife's contracts and torts, 385.
 
 502 INDEX. 
 
 IMPRISONMENT, 
 
 for contempt no discharge thereof, 224. 
 
 for one year for non-payment of money, Debtors Act, 1869. .219. 
 
 situation of contemnor under, 246. 
 
 under order of committal, 262. 
 
 writ of attachment, 246, 254. 
 
 INCUMBRANCER, 
 
 order for receiver how far for benefit of, 325. 
 over stocks and shares, 341. 
 
 how affected by stop order, 346. 
 protected by order for receiver, 318, 324. 
 to be made party to creditor's foreclosure action, 311. 
 
 INDEMNITY, 
 
 to sheriff by party none, unless express, 90. 
 
 on execution of writ of possession, 104, note (t). 
 in case under 13 Eliz. c. 5. . 148. 
 
 INDICTMENT, 
 
 for extortion, 162. 
 for rescue, 75. 
 
 INDORSEMENT, 
 
 by solicitor on writ, liability of client, 89. 
 
 of address on writ of execution, 31. 
 
 of bill of exchange by person ordered by Court, 223. 
 
 of direction to levy interest, O. XLII. r. 16. .32. 
 
 of receipt of writ of execution, 114. 
 
 on order prior to process for contempt, O. XLI. r. 5. .234, 236, 275. 
 
 on writ of attachment, one year's imprisonment only, 226. 
 of contempt for which issued, 245. 
 INHIBITION, 
 
 of incumbent, subject to sequestration, 206. 
 
 INJUNCTION, 
 
 dismissal of action for, application to stay execution, 42. 
 
 enforceable by committal, 257. 
 
 indorsement on, under O. XLV. r. 1, not necessary, 234. 
 
 service, personal, not necessary to ground order of committal, 237, 258. 
 
 to assist receiver, 319. 
 
 to restore sequestrators, 277. 
 
 to restrain receipt of pension, sequestration, 289. 
 
 INQUEST UNDER ELEGIT, 
 
 finding of jury on, and its effect, 172. 
 
 how conducted, 172. 
 
 question to be tried before, 190. 
 
 INQUISITION UNDER ELEGIT. See INQUEST. 
 return of , 1 7 2 , 1 7 3 . See FOKMS . 
 title under, 173.
 
 INDEX. 503 
 
 INSPECTION, 
 
 order for, need not be personally served, 237. 
 
 INSTRUCTIONS, 
 
 to sheriff by solicitor, 90. 
 
 INTEREST, 
 
 judgment carries, which can be levied, 32. 
 
 on costs, 32. 
 
 tenant by elegit allowed, 185. 
 
 INTERFERENCE, 
 
 with receiver a contempt, 260, 318, 319. 
 sequestrators a contempt, 276. 
 
 de Ion. eccles. a contempt, 205. 
 sheriff or his officers a contempt, 74. 
 
 on writ of possession, 104, 105. 
 wards of Court a contempt, 260. 
 
 INTERLOCUTORY ORDER, 
 
 in Chancery compared with rules nisi and absolute, 9. 
 receiver on, may be appointed after judgment, 312. 
 
 INTERROGATORIES, 
 
 administration of, under sequestration, 280. 
 attachment for disobedience of order to answer, 233. 
 personal service of order for answering unnecessary, 237. 
 power of common law Courts to administer, 6. 
 
 INTITULATION, 
 
 of charging order, 336. 
 
 of motion for order for writ of attachment, 239. 
 
 of order upon which attachment founded, 244. 
 
 IRREGULARITY, 
 
 action for issuing execution on, 38. 
 
 by demanding payment from clerk attending taxation, 21. 
 
 execution not agreeing with record, 37. 
 
 judgment more than six years old, execution on, is an, 44. 
 
 liability of creditor for, 88. 
 
 motion to discharge order for writ of attachment on ground of , 251. 
 
 And see FOBMS. 
 of committal for, 262. 
 
 second writ issued before return of first, 59. 
 setting order aside for, 37, 252. And see FOBMS. 
 single execution on joint judgment is an, 38. 
 
 ISSUE, 
 
 as to garnishee's liability, 354. 
 
 feigned, compared with action for declaratory judgment, 13. 
 
 in tail bound by judgment, 176. 
 
 of writs of execution, order of, 47.
 
 504 INDEX. 
 
 ISSUES, 
 
 sale of, under distringas nuper mcecomitem, 145, note (w). 
 
 JOINT ESTATES, 
 
 estate of one tenant can be taken under elegit, 178. 
 
 JOINT JUDGMENT, 
 joint execution on, 38. 
 
 JUDGMENT, 
 
 assets infuturo, execution on, 26. 
 at law compared with decree, 7, 10. 
 
 nature of, discussed, 2. 
 conditional, waiver of, 21. 
 
 execution on, Ord. XLII. r. 9. .22. 
 declaratory, what, 13. 
 devolution of interest before and after, 51. 
 directory, what, 12. 
 effect of, in ejectment, 96, 107. 
 
 not to bind goods, 113, note (r). 
 entry of, Ord. XLI. r. 1 . . 30. 
 equitable estates acquired after, subject to execution, 298. 
 
 estate in land not bound by, 299. 
 justifies execution so long as unreversed, 92. 
 no sequestration on simple, 270. 
 registration of, 188. 
 reversal of, in ejectment, effect, 106. 
 sheriff must depend upon, under 13 Eliz. c. 5 . . 147. 
 the term, now includes decree, 10. 
 
 JUDGMENT OR ORDER, 
 
 enforcement of, by same methods, Ord. XLII. r. 24 .. 20. 
 for possession, execution on, 98. 
 meaning of phrase, 10. 
 
 JUDICATURE ACT. And see TABLE OP STATUTES. 
 general effect on nature of decision pronounced, 10. 
 of 1873, united Courts of law and equity, 10. 
 of 1884, s. 4, substitutionary execution, 223. 
 
 JURISDICTION, 
 
 as to contempt at law, 211. 
 
 at common law related to questions of ownership, 4, 16. 
 
 nature of, in equitable execution, 296. 
 
 to make declaratory judgments, 13. 
 
 JUSTIFICATION, 
 
 writ is sheriff's, 83, 86.
 
 INDEX. 505 
 
 LAND, 
 
 action for recovery of. See EJECTMENT. 
 
 execution with respect to. See ELEGIT; EQUITABLE EXECUTION. 
 
 suit for recovery of, in equity, 97. 
 
 LANDLORD, 
 
 execution by, payment of rent, 141. 
 rights of, against receiver, 322. 
 how protected, 138. 
 
 with respect to goods of third persons. 14. 
 who is a, within 8 Anne, c. 14, s. 1 . . 140. 
 
 LEASEHOLDS. See TEEMS or YEAES. 
 
 LEAVE TO ISSUE EXECUTION. And see FOEMS. 
 against members of firm, O. XLII. r. 10. .28, 29. 
 company in liquidation, 41, 359, note (f). 
 after six years, 44. 
 
 payment on account, 45. 
 devolution of plaintiff's interest after judgment before execution, 52. 
 
 defendant's interest after judgment before execution, 53. 
 evidence on application for, on judgment of assets inftituro, 26. 
 on conditional judgment, 22. 
 order giving, need not be drawn up, 23. 
 writ of attachment, notice of motion for, 240. 
 
 copy affidavits to be served with notice, 240. 
 necessary in all cases, 239. 
 showing cause against motion, 242. 
 
 LEAVE TO ISSUE SEQUESTRATION, 
 
 notice of motion for, 272. 
 
 against a corporation, Ord. XLII. r. 31. .273. 
 for costs, Ord. XLIII. r. 7. .274. 
 
 LEGACY, 
 
 execution against, by receiver, 323. 
 garnishee process against, 360. 
 
 LEVARI FACIAS, 
 
 at common law, 108, 112. 
 
 LEVY, 
 
 meaning of, in relation to right of poundage, 156. 
 
 LIABILITY, 
 
 of execution creditor and sheriff compared, 86. 
 
 for injuries, 86. 
 of sheriff for wrongful acts and negligence. See SHEBIFF. 
 
 on discharge of writ of attachment, 251. 
 
 on execution of writ of possession, 104. 
 
 LIBERTY. See FEANCHISE.
 
 506 INDEX. 
 
 LIEN, 
 
 debtor's, cannot be sold under fi. fa. , 134. 
 
 of a judgment over land, 184, note (e), 304. 
 
 of company over shares where charging order applied for, 338. 
 
 of solicitors over fund recovered and garnisheed, 372. 
 
 LIMITATION OF TIME. See TIME. 
 
 LIS PENDENS, 
 
 action for protection of charge given by 1 & 2 Viet. c. 110, s. 13. .305. 
 redemption action by creditor to be registered as a, 300. 
 
 MALICIOUS EXECUTION, 
 creditor liable for, when, 87. 
 sheriff not liable in action for, 88. 
 
 MANAGEMENT, 
 
 of sequestered property, order for, 283. 
 
 MANDAMUS, 
 
 performance of, by means of plaintiff himself, 223. 
 
 MANDATORY, 
 
 sheriff is a, of person issuing execution, 80. 
 
 MANDA VI BALLIVO, 
 
 return of, 76. And see EOEMS. 
 
 MARKET OVERT, 
 
 sale under fi. fa. is not a sale in, 125, 134. 
 
 MARRIAGE, 
 
 change of interest on. See DEVOLUTION OF INTEREST. 
 of ward of Court, remedy for contempt, 260. 
 
 MARRIED WOMAN, 
 
 Act of 1870, no effect on liability of, 382. 
 capacity of, now, to enter into contracts, 385. 
 
 own property, 383, 384. 
 decree to charge separate estate, form, 379. 
 
 execution on, 380. 
 
 execution against, prior to 9th August, 1870. .375. 
 1st January, 1883.. 382. 
 after 31st December, 1882. .383, 387. 
 generally, Book III., Chap. IV., 375. 
 form of judgment against, now, 386. 
 
 execution thereupon, 387. 
 liability of, for contracts and torts, 385. 
 for contempt, 391. 
 husband for. See HTJSBAJTD. 
 in actions at law, 376. 
 in equity, 376.
 
 INDEX. 507 
 
 MARRIED WOMAN continued. 
 
 might be sued at law jointly with her husband, 25. 
 no personal order against, in equity, 380. 
 power to commit under sect. 5, Debtors Act, 1869. .267. 
 property of, for her separate use liable, 377. 
 
 acquired after judgment, 387. 
 
 how affected by "Married Women's Property Acts," 381-. 
 
 receiver over, 323. 
 
 seizable under sequestration, 288. 
 restraint on anticipation over property of, 288, 377. 
 sequestration available against, 391. 
 trustee, her liability under Act of 1882 . . 390. 
 
 METES AND BOUNDS, 
 
 of joint tenant's interest not set out in inquisition, 178. 
 
 MILITARY PAY. See PAY ; HALF-PAT ; PENSIONS. 
 
 MISNOMER, 
 
 in judgment followed in writ, 36. 
 
 MONEY, 
 
 and notes seizable under fi. fa., 131. 
 effect of seizure on property in, 132. 
 writ of execution for, must correspond with judgment in amount, 37. 
 
 MORTGAGEE, 
 
 debtor, of lands subject to charge under 1 & 2 Viet. c. 110, s. 13. . 308. 
 
 elcgit creditor in position of, 185, 186. 
 
 equitable, can apply for a stay, 40. 
 
 estate of, cannot be seized under ekglt, 308. 
 
 of stock ranks before charging order, 341. 
 
 position of, as to registration of judgment, 327, 328. 
 
 NEGLIGENCE, 
 
 allegation unnecessary in action for false return, 81. 
 liability of sheriff for, to execution creditor, 79. 
 
 debtor, 82. 
 
 on sale under Jl. fa., 124. 
 on writ of possession, 103. 
 NON EST INVENTUS, 
 
 return of, to writ of attachment, 249. And see FOBMS. 
 
 NON OMITTAS, 
 
 clause of, 176. And see FOBMS. 
 
 NOTICE, 
 
 of act of bankruptcy, its effect on execution creditor, 154. 
 of injunction sufficient to found committal for contempt, 258.
 
 508 INDEX. 
 
 NOTICE continued. 
 
 in lieu of distringas, 3i7. 
 
 of inquest not necessary to execution debtor, 172. 
 
 of judgment no effect as regards execution creditor, 299. 
 
 of motion for attachment need not be served personally, 241. 
 
 sequestration, formalities, 272. 
 of receiving order to sheriff levying execution, 153. 
 of writ of/, fa. issued, 116. 
 
 NULLA BONA, 
 
 return of, 138. And see FORMS. 
 
 ORDER, 
 
 entry of, made in chambers, 20. 
 of issue of writs of execution, 47. 
 to be enforced as judgment, 20. 
 
 ORDER AND DISPOSITION, 
 effect of seizure upon, 122. 
 
 ORIGINATING SUMMONS, 
 
 equitable execution enforced by, 303. 
 
 OWNERSHIP, 
 
 of land not recognized in our system of law, 96, note (/). 
 
 PARSONAGE, 
 
 cannot be taken under a sequestration, 204. 
 
 PARTIES, 
 
 change of. See CHANGE OF PARTIES. 
 
 to action in respect of separate estate, 378. 
 
 to foreclosure action by creditor, 307, 311, 343, 344. 
 
 trustees of settlement are, to action for equitable execution, 324. 
 
 PARTITION, 
 
 necessary to work out elegit against joint tenancy, 178. 
 order for, is directory, 13. 
 
 PARTNERS. See FIBM. 
 
 judgment signed against one of a number, 28. 
 
 PARTNERSHIP PROPERTY, 
 
 debtor's interest in, seizable, 135. 
 
 PAWNBROKER'S PLEDGES, 
 
 seizable under j^. /., 135. 
 
 PAT, 
 
 for public services unattachable, 364, 365.
 
 INDEX. 509 
 
 PAY con tin ued. 
 
 of officers of justice, 365. 
 
 and seamen in navy, assignment prohibited, 367. 
 of soldiers, assignment prohibited, 366. 
 
 PAYMASTER-GENERAL, 
 
 dividends in hands of, 347. 
 
 PAYMENT, 
 
 on account of judgment, leave to issue execution after, 45. 
 
 PAYMENT INTO COURT, 
 by garnishee, 355, 371. 
 Debtors Act, 1869, extends to, 220. 
 enforceable by sequestration, 273. 
 not enforceable \>j fi.fa. or elegit, 109. 
 
 PENALTY, 
 
 payment of, excepted from sect. 4 of the Debtors Act, 1869. .218. 
 
 PENSIONS, 
 
 can be taken under sequestration, when, 289, 386. 
 
 execution against, 368. 
 
 form of order charging, 289, 369. 
 
 list of, held alienable, 367. 
 
 rendered inalienable by statute, 368. 
 
 PERFORMANCE, 
 
 of order by master, substitutionary, 222. 
 
 PETITION, 
 
 contemnor after committal applies by, 265. 
 
 for sale of land taken in execution discussed, 300, 301. 
 
 in equitable execution, 301. 
 
 under sequestration, none, 285. 
 
 PLEADING, 
 
 rule of, where sheriff, and where party, sued, 91. 
 
 PLENE ADMINISTEA VIT, 
 
 judgment and execution after, 26. 
 
 PLUBIES WRIT, 58. 
 
 POLICY OF ASSURANCE, 
 
 seizable under Ji.fa., when, 133. 
 
 POSSE COMITATUS, 
 
 sheriff bound to raise, 75. 
 
 on execution of writ of possession, 103. 
 
 POSSESSION, 
 
 "apparent possession," effect of seizure on, 151. 
 costs of action for, may be levied by./?, fa., 111. 
 Debtors Act, 1869, does not affect, 220.
 
 510 
 
 INDEX. 
 
 POSSESSION continued. 
 
 delivery of, under writ, 103. 
 equitable remedy for recovery of, 97. 
 judgment for, effect of, before Judicature Acts, 94. 
 form of, before Judicature Acts, 95. 
 money, excessive not necessarily extortion, 162. 
 of sheriff under fi. fa., 120. 
 of term of years under fi. fa. not to be taken, 129. 
 
 elegit not to be taken, 181, note (y). 
 present remedy for, 98. 
 restoring, on reversal of judgment for recovery of land, 106. And see 
 
 FOBMS. 
 
 retaining, for an unreasonable time, 82. 
 right to enter without writ of, 99. 
 
 sheriff's, basis of his right to sue for damage to goods, 122, note (m). 
 sequestrators to take, 276. 
 verdict in action for, how limited, 101. 
 writ of, 93. 
 
 and return as muniments of title, 97, note (I}. 
 
 application of O. XLII. r. 8 to, 100. 
 
 complete possession to be delivered under, 102. 
 
 duty of sheriff under, 101. 
 
 form of, 93. And see FORMS. 
 
 on order to restore, 106. 
 
 party placed in possession under, 106. 
 
 receiver placed in possession by, 30, 98. 
 
 recital in, of change of parties, 52. 
 
 supersedes writ of assistance, 98. 
 
 where possession complete under, 104. 
 
 POUNDAGE, 
 
 action for work and labour, 156. 
 and fees distinct, 156, 158. 
 how calculated, 156, 158. 
 levy for, 159. 
 
 under elegit (query), 160. 
 none from landlord on amount of rent levied, 158. 
 
 on writ of attachment, 255. 
 
 without levy in fact, 157. 
 on elegit, 193. 
 on writ oiji.fa. and generally, 155. 
 
 possession, 107. 
 
 seizure necessary to sustain claim for, 157. 
 statutable right to, 155. 
 
 POWER, 
 
 lands subject to, effect of elegit on, 179. 
 meaning of "disposing power," 179.
 
 INDEX. 511 
 
 PR^CIPE, 
 
 for writ of execution, O. XLII. r. 12.. 31. 
 meanings of the word in English law, 31, note (c). 
 on change of parties, pendente lite, 36. 
 
 PRIORITY, 
 
 of charging order and mortgagees of stock, 341. 
 
 orders inter se, 341. 
 of competing writs of elcgit, 191. 
 of competing writs ofji.fa. under sect. 16 Stat. Frauds, 117. 
 
 where first fraudulent, 118. 
 
 of lien over shares set up by public company, 345. 
 of sequestrations of ecclesiastical benefices, 207. 
 questions of, in garnishee proceedings, 372. 
 sale in redemption action without determining, 302. 
 stop order and its effect in determining, 346. 
 
 PRISONER, 
 
 under attachment not a criminal, 247. 
 
 PRIVILEGE FROM DISTRESS, 
 
 goods in custodld kgis, 139. 
 
 landlord's right to rent for one year, 8 Ann. c. 14 .. 140. 
 
 third persons' goods have not, 141. 
 
 PRO INTERESSE SUO, 
 
 application by equitable mortgagee for a stay, 40. 
 possession of sequestrators when ordered on application, 280. 
 practice on applications under a sequestration, 277. 
 
 PROBABLE CAUSE, 
 
 in malicious prosecution, 87. 
 
 PROCEEDS, 
 
 effect of notice of act of bankruptcy on creditor's right to retain, 154. 
 of execution in sheriff's hands, remedy, 81, 136. 
 
 under^. fa. payable to creditor, 136. 
 
 other than those of seizure and sale, 155. 
 of seizure and sale over 201., sheriff retains, 153, 154. 
 of sequestration how to be dealt with, 273. 
 
 PROMISSORY NOTE, 
 
 debt due under, cannot be garnisheed, 359. 
 
 PUBLIC COMPANY, 
 
 appearance on application for charging order, 337. 
 
 execution against person representing, 36. 
 
 may be restrained from parting with shares, 347. 
 
 meaning of, in 1 & 2 Viet. c. 110. .335. 
 
 when proper party to foreclosure of shares, 344.
 
 512 INDEX. 
 
 PUBLICATION, 
 
 of sequestration against ecclesiastical property, 203. 
 
 PURCHASER, 
 
 lonAjide, of term from execution creditor, 130. 
 
 delivery of writ "to be executed," construed for benefit of, 114, 118. 
 
 judgment creditor is not a, 306. 
 
 of land bound by writ of execution, 188. 
 
 protected by registration, 327, 328. 
 
 RATES, GAS, WATER, ETC., 
 
 where there is a right of distress, 142. 
 
 RECEIPT, 
 
 formerly demandable under 13 Edw. 1, c. 39, 79, note (). 
 to be given for writ by sheriff, 77. 
 
 RECEIVER, 
 
 accounts of, 320. 
 
 and sequestrator compared, 317. 
 
 application for, by summons or on motion ex parte, 313. 
 
 evidence in support of, 314. 
 
 appointed to preserve property in medio, jurisdiction, 9. 
 claimant against pro interesse suo, 318. 
 date from which appointment runs, 316. 
 defaulting, and process against him, 320. 
 discharge of, 326. 
 
 discretion or jurisdiction to appoint under Jud. Act, 312. 
 duty of, to take possession, 317. 
 
 generally, 320. 
 in lieu of sale, 126. 
 injunction to assist, 319. 
 interference with a contempt, 319. 
 judgment creditor appointed, when, 315. 
 
 under 501., 314, note (ff). 
 jurisdiction to appoint, purely equitable, 311. 
 liable formerly to committal, not attachment, 231. 
 none in respect of ecclesiastical benefice, 208. 
 officer of the Court, 318. 
 over both land and goods, 193, 322. 
 
 partnership property, debtor's interest in, subject to, 135. 
 property to be defined in order appointing, 317. 
 property over which appointed, Book III. Chap. I., s. 3 (iii.), 321. 
 
 equitable interests in goods, 322. 
 land, 321. 
 
 fund in Court, 324'.
 
 INDEX. 513 
 
 RECEIVER con tinued. 
 
 property over which, appointed continued. 
 
 legacy, 323. 
 
 legal and equitable, 321. 
 
 married woman's property, 323, 380. 
 
 pensions, 368. 
 
 reversionary interest in personalty, 324. 
 
 stock in trade, 323. 
 recognizance of, 316. 
 right to writ of possession, 98. 
 sale after appointment of, 326. 
 security to be given by, 315. 
 sequestration similar to appointment of, 317. 
 ships mortgaged, are subject to execution by, 128. 
 sum due from, can be garnisheed, 360. 
 summary appointment of, after judgment, 312. 
 who may be appointed, 315. 
 
 RECEIVING ORDER, 
 
 in lieu of committal under Debtors Act, 266. 
 
 RECOGNIZANCE, 
 
 to be given by receiver, 316. 
 
 RECORD, 
 
 basis of creditor's estate under elegit, 184. 
 
 falsifying, by the return, 61. 
 
 foundation of judicial writs, 19. 
 
 in ejectment, importance of completing, 97, 103. 
 
 issue of writ from where record was, 33. 
 
 meaning of, 2, 34. 
 
 modern equivalent for, 34. 
 
 now of little importance ; change of parties, 52, note (k). 
 
 relation between return and, 59. 
 
 rule nisi and absolute no part of the, 5, 34, note (). 
 
 writs must correspond with, 34. 
 
 RECOVERY OF LAND. See POSSESSION ; EJECTMENT. 
 
 REDEMPTION, 
 
 action for, by creditor to be registered, 300. 
 
 after return of nihil to an elegit, 181, note (z). 
 by tenant by elegit, 175. 
 by sequestrators, 281. 
 
 creditor's right to, by way of equitable execution, 298. 
 of land subject to elegit, 308. 
 order in, is directory, 12. 
 originating summons for, 175, 303. 
 sale of land in action for, 301. 
 E. L L
 
 514 INDEX. 
 
 REGISTRATION, 
 
 effect of, on judgment creditor's title, 189, 327. 
 
 generally, Book III., Chap. I., sect. 4. .326. 
 of bills of sale, 150. 
 of judgments, statutes relating to, 189, 327. 
 
 none necessary at present time, 305. 
 
 and writs of execution, 23 & 24 Viet. c. 38, s. 1 . . 191. 
 
 essential to statutable charge, 328. 
 
 REMAINDER, 
 
 can be charged by action for foreclosure, 309. 
 cannot be taken under elegit, 178. 
 
 REMOVAL, 
 
 of goods before seizure, 119. 
 
 by sheriff for safe custody, 120. 
 
 liability of sheriff to landlord on, 140. 
 
 prohibited by 14 Anne, c. 14, unless rent paid, 1 42. 
 
 REMUNERATION, 
 of receiver, 315. 
 of sequestrator of ecclesiastical benefice, 207. 
 
 RENEWAL OF WRIT OF EXECUTION, 45. 
 advantage of, 46. 
 application for, 46. 
 evidence of, 46. 
 
 RENT, 
 
 attachable, when, 360, 372. 
 
 growing crops subject to accruing, 139. 
 
 payable by tenant under sequestration, 282, 284 . 
 
 sequestrators out of fund in Court, 288. 
 poundage on, 158. 
 recoverable by tenant by elf git, 174. 
 
 on delivery of reversion, 178. 
 year's, must be paid on execution, 140. 
 
 RENT-CHARGE, 
 
 saleable under fi.fa., 130. 
 
 REPAIRS, 
 
 to be provided for by sequestrator de ban. eccles., 204. 
 
 REPLEVIN, 
 
 judgment in, 3, note (t).
 
 INDEX. 515 
 
 REPRESENTATION, 
 
 to sheriff, liability of execution creditor for, 90. 
 
 on execution of writ of possession, 104. 
 RESCUE, 
 
 remedies for, 75. 
 
 RESTITUTION, 
 
 after reversal of judgment of term sold under elegil, 187. 
 on reversal of judgment for possession, 106. 
 
 RESTRAINT ON ANTICIPATION, 377. 
 
 property subject to, cannot be sequestered, 288. 
 
 RETOENA BREVIUM, 
 franchise of, 75. 
 
 RETURN, 
 
 certainty in, required, 61. 
 compelling return by sheriff, 63, 78. 
 conclusiveness of, against sheriff, 62. 
 description of, 60. 
 
 direction to, immediately, its effect, 57. 
 on day certain in term, 56. 
 evidence against parties, how far, 63. 
 execution valid without, 61. 
 false, action for, 80, 82, 103. 
 generally, 56. 
 goods remain in hand for want of buyers, 144. 
 
 effect of, on bankruptcy, 154. 
 
 effect of, as to discharge, 123. 
 
 foundation of vend, exp., 144. 
 necessary in case of elegit, 62. 
 no action for non-return, 79. 
 not necessary to found action against sheriff, 81. 
 of inquisition and elegit, effect of, 173. 
 of mandavi ballivo, 76. 
 of nulla bona, 138. 
 party entitled to, person issuing when, 63. 
 
 person against whom execution issued, when, 64 . 
 practice on, as to returning writ itself, 58, 207. 
 purpose of, to complete record, 56. 
 quashing, 61. 
 
 relation between record and, 59. 
 requisites of, 60. 
 
 rescue, formerly equivalent to conviction, 75. 
 toji. fa. fieri, fed, 137. 
 
 as to part, nulla bona as to residue, 138. 
 LL2
 
 516 INDEX. 
 
 RETURN continued. 
 to habeas corpus, 254. 
 to sequestration de bonis ecclesiasticis, 201, 207. 
 
 not required, 56, note (x), 271, note (p). 
 to writ of attachment, 249. 
 utility of, 62. 
 
 REVERSION, 
 
 can be taken under elegit, 177. 
 in personalty, receiver over, 324. 
 none on estate of tenant by elegit, 184. 
 under sequestration, 284. 
 
 REVIVOR AND SUPPLEMENT, 49. 
 
 EIGHT TO ENTER, 
 
 term of years under fi. fa. none, 129. 
 without writ of possession, 99. 
 
 RULE NISI AND ABSOLUTE, 
 
 contempt at common law proceeded against by, 211. 
 nature of proceedings by, 5. 
 not part of record, 34, note (a). 
 
 RULES AND ORDERS OF THE SUPREME COURT. See TABLE OF 
 RULES AND OEDEES. 
 
 SALARY, 
 
 non-payment of, for benefit of creditors, exempted from Debtors Act, 
 
 1869. .219. 
 
 or remuneration of receiver, 315. 
 when attachable, 364. 
 
 SALE, 
 
 by private contract under fi. fa., 126. 
 
 conduct of, in redemption action under Conveyancing Act. 302. 
 
 farming stock (56 Geo. III. c. 50), 125. 
 
 goods under sequestration, by order, 285. 
 
 land, after appointment of receiver, 326. 
 
 none under sequestration, 285. 
 
 on petition under 27 & 28 Viet. c. 112, s. 4. .300. 
 
 under sect. 25 Conv. Act, 1881.. 175, 302, 310. 
 on petition, of land under elegit, 301. 
 power of Court to order, in action of redemption, 301. 
 priorities on, under Conv. Act, 1881. .302. 
 receiver in lieu of, 126, 323. 
 ship, by bill of sale, 126. 
 stock and shares in foreclosure, 348.
 
 INDEX. 517 
 
 SALE continued, 
 
 term of years under fi. fa., 129. 
 
 elegit, 186. 
 
 under fi. fa., advertisement of , 125. 
 duty of sheriff, 124. 
 irregular, 125. 
 title of purchaser on, 125. 
 under foreclosure action by creditor, refused, 306. 
 
 i 
 
 8CIRE FACIAS, 
 
 against member of banking firm, 27. 
 
 shareholders in public companies, 27. 
 on change of parties at common law, 49, 51. 
 on judgment, not now proper remedy to keep it alive, 45. 
 under C. L. P. Act, 1852 ... 24, 26, note (kk), 44. 
 
 SECURITIES, 
 
 seizable under fi. fa., 131, 133. 
 
 SECURITY, 
 
 for costs in action for redemption, 302. 
 to be given by receiver, 315. 
 
 SEIZURE, 
 
 effect of, on cheques, bills, &c., 132. 
 
 title to goods, 116. 
 
 as to discharge, 123. 
 
 essential before sale of goods can be made, 124. 
 how effected under/, fa., 119! 
 necessary to found claim for poundage, 157. 
 of books, papers, &c., by sequestrators, 224. 
 of ship under fi. fa. unnecessary, 127. 
 
 SEIZURE AND SALE, 
 
 act of bankruptcy, 153. 
 
 for over 501., an act of bankruptcy evaded formerly by elegit, 167. 
 
 proceeds of, over 20?. to be retained for fourteen days, 153. 
 
 SEMAYNE'S CASE, 
 
 application of, to attachment, 85, 245. 
 
 an act not authorized by the writ, 84. 
 
 writ of possession, 102. 
 doubted, 85, note (m). 
 
 SEQUESTRARI DE JBONIS ECCLESIASTICIS. And see FOEMS. 
 bishop's warrant on, 202. 
 form of return to, 201, 207.
 
 518 INDEX. 
 
 SEQUESTRARI DE BONIS ECCLESIASTICIS continued. 
 publication of, 203. 
 the return founding writ of, 200. 
 when issuable, 200. 
 
 SEQUESTRATION, WRIT OF, 
 
 accounts under and order for, 292. 
 
 and appointment of receiver compared, 268, 317. 
 
 and distringas, and capias utlagatum compared, 269. 
 
 application pro interesse suo under, Book II., Chap. IV., s. 4. .277. 
 
 assignable interest in, 292, note (). 
 
 attachment in aid of, 276. 
 
 available always for gross contempt, 272. 
 
 against married woman, 391. 
 books, papers, &c., of third parties under, 289. 
 conveyance to defeat, void, 283. 
 copyholds under, 284. 
 costs of. See COSTS. 
 damages on execution of, 276. 
 definition, 268, 273. 
 discharge of, 292. 
 
 documents in custody of contemnor may be seized under, 224, 289. 
 does not cease by death of contemnor, 290. 
 ecclesiastical goods not seizable under, 199, note (d). 
 effect of bankruptcy on, 290. 
 
 rights of third persons, 277. 
 form of, 270. And see FORMS. 
 illustration of equitas agit in personam, 8. 
 injunction in aid of, 277. 
 
 indorsement on order prior to issue of, O. XLI. r. 5 . . 235, 275. 
 issued after imprisonment for contempt, 225. 
 
 on leave wherever gross contempt, 272. 
 
 for costs, 274. 
 
 payment into Court, 232, 273. 
 
 recovery of property other than money, Ord. XLII. r. 6 . . 232, 
 273. 
 
 to enforce order against corporation, 232, 273. 
 
 without order, 273. 
 land cannot be sold under a, 285. 
 leasehold under, 284. 
 letting by sequestrators under, 283. 
 management of property under, 281, 283. 
 not available on ordinary judgment, 270, 291. 
 not punitive, 274. 
 notice of motion for, 273. 
 order for withdrawal of, 281. And see FORMS. 
 origin of, 269.
 
 INDEX. 519 
 
 SEQUESTRATION, WRIT OF continued. 
 
 practice on, after issue, Book II., Chap. IV., s. 2. .272, 275. 
 proceeds of, how dealt with, 273, 291. 
 process in contempt, 269. 
 property seizable under, 284, 288. 
 
 annuity, 288. 
 
 debts due to contemnor, 287. 
 
 goods, and the sale thereof by order, 285. 
 
 married women's property, 288. 
 
 money in Court, 286. 
 
 pensions, 289, 368. 
 
 stocks and shares, 286. 
 redemption by sequestrators under, 281. 
 rent to be paid by tenant under, 282. 
 
 how paid to landlord, 288. 
 return of, none, 271, note (p). 
 reversionary interests under, 284, 287. 
 separate proceedings to enforce, 282. 
 tenants of contemnor and their position under a, 282. 
 timber seized under, order for sale, 283. 
 
 SEQUESTRATORS, 
 
 de ban eccles. appointed by warrant from bishop, 202. 
 
 powers of, to sue and give receipts, 205. 
 
 remuneration of, 207. 
 duties of, 276. 
 
 as to land, 284. 
 officers of the Court, 275. 
 
 power to seize documents ordered to be delivered, 224, 289. 
 process against, for neglect of duty, 275. 
 
 SERJEANT-AT-ARMS, 
 
 application for, on return of non est inventtts, 249. 
 order for the, (Cons. Ord. XXX. r. 2,) 249. 
 who he is, 249. 
 
 SERVICE, 
 
 affidavit of. See AFFIDAVIT. And see FOEMS. 
 
 charging order nisi, 337. 
 
 difference between committal and attachment in respect of, 264. 
 
 garnishee order nisi, 353. 
 
 indorsement on order where substituted, 236. 
 
 irregular, of order without indorsement, 238. 
 
 notice of motion on country agent, 24 1 . 
 notice of motion for attachment, 241.
 
 520 INDEX. 
 
 SERVICE continued. 
 
 of order prior to sequestration, 275. 
 
 on member of firm to found right to issue execution, 29. 
 
 order for discovery in aid, 237. 
 
 personal, of judgment not necessary before execution, 21. 
 
 of every order to do an act, 236, 272. 
 
 not necessary of injunction, 258. 
 
 of notice of motion for committal, 259. 
 
 strict, of order on which attachment founded, 36, 238. 
 petition for sale of lands, on debtor only, 27 & 28 Viet. c. 112, s. 4. .300. 
 substituted, of notice of motion for committal, 259. 
 provided for by 0. LXVII. r. 6 . . 238. 
 
 SET-OFF, 
 
 by garnishee against debtor, 371. 
 
 SETTING ASIDE, 
 
 attachment for irregularity, 251. 
 execution for irregularity, 37. 
 
 formerly, on bankruptcy of debtor, 37, note (d). 
 return falsifying record, 61. 
 
 SETTLEMENT, 
 
 interest of debtor in, when stock subject to charging order, 343. 
 
 SHAREHOLDERS, 9. 
 
 in joint stock companies, execution against, 24, 27. 
 
 SHARES. See STOCK AND SHABES. 
 
 SHERIFF, 
 
 agency not relationship between, and creditor, 89. 
 appointment of, how made, 67. 
 attachment against, 79, 81. 
 authority of, limited to his county, 68. 
 Dalton's description of the office of, 67. 
 delivery of writ to, to be executed, 77. 
 deputy of, to be appointed in London, 70. 
 direction of writ to, form, 71. And see FOBMS. 
 duties of, generally, 67, 79. 
 
 as to rent payable to landlord, 140, 142. 
 under Bills of Sale Act, 1878 .. 150. 
 ft. fa., 119, 120, 124,129. 
 elegit, 171. 
 writ of attachment, 246, 251. 
 
 possession, 101. 
 
 false return made by, actionable, 80, 82. 
 fees of, under 1 Viet. c. 55 .. 158. See APPENDIX III.
 
 INDEX. 521 
 
 SHERIFF continued. 
 
 franchise, execution in, by, 76. 
 
 interested, process directed to coroner or elisors, 70. 
 
 interference with, a contempt, 74. 
 
 justification of, by writ only, 83, 86. 
 
 liability of (1) for due performance of the writ, 78. 
 
 negligence in execution, 79. 
 
 to person issuing writ by action where damage ac- 
 crued, 80. 
 
 against whom execution issued, 82. 
 
 to return writ and summary process to enforce it, 63, 79. 
 under writ of possession, 101. 
 (2) for acts done not within mandate of writ, 83. 
 
 of bailiff, except where plaintiff's nominee, 74. 
 extortion, 161. 
 undersheriff, 74. 
 
 none for malicious execution, 88. 
 under 13 Eliz. c. 5.. 147, 148. 
 mandatory, of execution creditor, 80, 
 officer of the Court, and liable for contempt, 68. 
 only officer to whom writs of execution addressed, 68. 
 poundage of, under 28 Eliz. c. 4 . . 156. 
 representation to, by party, 90. 
 representatives of, when liable, 69. 
 successor of, and transfer of process to him, 68. 
 trespass against, for acts not within mandate of writ, 83. 
 
 SHIP, 
 
 at sea, execution against, 128. 
 execution against, generally, 126, 127. 
 share in, 126, 127. 
 mortgaged, execution against, 128. 
 
 SOLICITOE, 
 
 lien of, over fund recovered and garnisheed, 372. 
 
 ordered to pay costs, exempted from operation of Debtors Act, 1869 . . 218. 
 
 privilege of, from arrest, 248. 
 
 SPECIAL CONTEMPT. See CONTEMPT. 
 
 SPECIALITIES, 
 
 seizure under^. fa., 131, 133. 
 
 STAY OF EXECUTION, 
 
 application for, how made under 0. LII. r. 17 (6), 39, 42. 
 by equitable mortgagee, 40. 
 bankruptcy of judgment debtor, 41. 
 E MM
 
 522 INDEX. 
 
 STAY OF EXECUTION continued. 
 costs of application for, 43. 
 
 dismissal of action for injunction, application for stay where made, 42. 
 discretion to stay, 39. 
 evidence on application for, 42. 
 on appeal to Court of Appeal, application, O. LVIII. rr. 16, 17. .41. 
 
 from inferior Court, 43. 
 on equitable grounds, 39. 
 special order on, 42. 
 
 STOCK AND SHARES. See CHANGING OEDKE. 
 nature of stock in the funds, 331. 
 
 or shares in companies, 331. 
 
 taken in execution subject to regulations of company, 332. 
 under sequestration, 286. 
 
 STOCK IN TRADE, 
 
 receiver of, in lieu of sale, 323. 
 
 STOP ORDER, 
 
 by receiver in respect of legacy in Court, 323. 
 over fund in Court in aid of charging order, 345. 
 
 SUBP(ENA, 
 
 for costs, abrogated, 274. 
 
 SUBSTITUTIONARY EXECUTION, Book II. Chap. I. sec. 3.. 223. 
 
 SUNDAY, 
 
 arrest made on, bad, 245. 
 
 writ returnable on, void, 57, note (a). 
 
 SUPERANNUATION ALLOWANCE, 
 
 not subject to garnishee process, 368. 
 
 SUSPENSION, 
 
 of incumbent, subject to sequestration, 206. 
 
 TAXATION, 
 
 no necessity to wait for, before issuing execution, 109, 111, 187. 
 
 TAXES, 
 
 creditor bound to pay, on execution, 142. 
 
 TENANT, 
 
 of contemnor, attornment of, to sequestrators, 282. 
 
 TENANT BY ELEGIT. See ELEGIT.
 
 INDEX, 523 
 
 TENDER, 
 
 before seizure, no right of poundage, 157. 
 
 TERM OF YEARS, 
 
 annuity secured by power of sale over, 309. 
 effect of elegit on, 186. 
 
 sequestration on, 284. 
 equitable estate in, not extendible, 182, 187. 
 
 saleable under,/?, fa. when, 128. 
 extendible under elegit, 129, 183, 186. 
 fictitious in ejectment, 95, 96. 
 liable to sequestration, 284. 
 objection to sale of, under fi. fa., 128. 
 saleable under fi. fa., 128. And see FOEMS. 
 seizure of, under fi. fa. unnecessary, 129. 
 
 Stat. Frauds, s. 16, and the M. L. A. Act, s. 56, no application to, 116. 
 termination of, before judgment in ejectment, 100. 
 wrongly alleged on inquisition, 187. 
 
 TESTS, 
 
 oifi. fa. or seq. fa. de bon. eccles. no binding effect, 203, note (c). 
 of writ oi.fi. fa., effect of, as to binding goods, 114. 
 no effect as to priorities, 117. 
 
 TIMBER, 
 
 felling and sale of, under sequestration, 283. 
 
 under lev. fa. de bonis eccles., 202, note (). 
 
 TIME, 
 
 execution may issue within six years, 43. 
 
 after six years by leave, 24, 44. 
 for which estate of tenant by elegit continues, 184. 
 
 sequestration de bon. eccles. continues, 206. 
 
 substituted service limited, 238. 
 fourteen days for execution except for land or money, 47, 234. 
 
 for sheriff to retain proceeds of execution, 153, 154, 155. 
 officer must be satisfied as to, having elapsed after judgment, 30. 
 one year's delay in proceeding, 44. 
 six months before enforcing charging order, 341. 
 to be stated in judgment or order, 234, 235. 
 twelve years ultimate limit of, 45. 
 
 two clear days on notice of motion for attachment, 240. 
 writ of execution runs for one year, 46. 
 
 TIPSTAFF, 
 
 committal addressed to, attachment to sheriff, 263. 
 who he is and his appointment, 262.
 
 524 INDEX; 
 
 TITLE, 
 
 no judgment as to, in ejectment, 96. 
 
 not investigated before jury on inquest under ekgit, 172. 
 
 to goods, not prejudiced until seizure, 115, 116. 
 
 to term of years under elegit, 187. 
 
 under sale by sheriff on^. fa., 125. 
 
 writ of possession and return form a muniment of, 97. 
 
 TRANSFER, 
 
 of process from sheriff to his successor, 69. 
 of stock restrained, 347. 
 
 TRESPASS, 
 
 sheriff commits ab initio, who retains possession, 82. 
 does not commit by extortion, 162. 
 
 TRESPASS TO GOODS, 
 
 sheriff can maintain, 75, 122. 
 
 TRUST, 
 
 of lands extendible must be express, 181. 
 of term how far extendible, 182. 
 Stat. Frauds s. 10 as to, of lands, 180. 
 
 TRUSTEE, 
 
 costs of. See COSTS. 
 
 lien of, over stock in settlement, 344. 
 
 married woman a, her position under Act of 1 882 . . 390. 
 
 necessary party to action in respect of separate estate, 378. 
 
 non-payment by, excepted from Debtors Act, 218. 
 
 of shares where cestui que trust's interest charged, 343. 
 
 of settlement how effected by receiver's appointment, 324. 
 
 TRUSTEE RELIEF ACTS, 
 
 questions raised under, though no relief asked, 14. 
 
 UNDER-SHERIFF, 
 
 appointment and notification thereof, 71. 
 
 authority of, 72. 
 
 bond of, given to sheriff, 72. 
 
 continuance of office of, on death of sheriff, 71. 
 
 deputy sheriff not an agent of, 72. 
 
 responsibility of sheriff for acts of, 72. 
 
 UNDERTAKING, 
 
 cannot, like mandamus, be carried into effect by plaintiff, 224. 
 equivalent to order, for purposes of contempt, 211. 
 
 UNION, 
 
 property of, extendible, 176.
 
 INDEX. 525 
 
 VARIATION. See DIVEBGENCE ; RECOBD. 
 
 VENLITIONI EXPONAS, 
 
 founded on return " goods remain in hand for want of buyers," 144. 
 
 part of fi.fa., 144. 
 
 the writ, 143. And see FORMS. 
 
 VENDOR, 
 
 of land, interest can be taken by receiver, 322. 
 of shares, his interest not chargeable, 339. 
 
 VERDICT, 
 
 death of party after, and before judgment, 51. 
 of jury on inquest under elegit, 111. 
 
 VOLUNTARY GIFT, 
 
 of goods, effect of, under sect. 16 Stat. Frauds, 115. 
 
 WAGES, 
 
 protected against execution, 364. 
 
 WAIVER, 
 
 appearance of counsel on application for substituted service is a, 238. 
 appearance to object to irregularity on motion for attachment, 243. 
 of conditional judgment, 21. 
 
 WARRANT. And see FOEMS. 
 
 bailiff's, nature and preparation of, 73. 
 bishop's, to sequestrators, 202. 
 proof of, in action against sheriff necessary, 73. 
 to tipstaff on order of committal, 262. 
 
 formalities of, 263. 
 under-sheriff makes out when writ delivered for execution, 77. 
 
 WATERWORKS, 
 
 land belonging to, extendible, 176, note (z). 
 
 WEARING APPAREL, 
 
 and bedding not seizable, 119. 
 
 WRIT OF EXECUTION, 
 
 definition of, quaere whether it applies to writ of attachment, 234. 
 applies to sequestration, 273. 
 under Ord. XLII. r. 8. .20. 
 in Chancery, 210. 
 
 WRIT OF SUMMONS, 
 
 origin and history of, 19. 
 E NN
 
 526 INDEX. 
 
 WRITS. See TITLES OF THE VAEIOUS WEITS. 
 alias, 58. 
 
 none after execution of writ, 105. 
 basis of procedure at common law, 2, 17. 
 Fitzherbert's Natura Brevium, 18, note (y). 
 judicial, are writs of execution, 18. 
 justification to sheriff acting under them, 83. 
 of execution, definition, Ord. XLII. r. 8. .20. 
 
 how issued, 33. 
 
 must correspond with record, 34. 
 original and judicial, 18. 
 pluries, 58. 
 
 prerogative and writs of right, 18. 
 question raised by, related at law to property, 2. 
 
 YEAR, 
 
 imprisonment for one, limit under Debtors Act, 1869. .219. 
 writ must be executed or renewed within the, 58. 
 
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 Affiliation Proceedings, with Statutes and Forms, Tableof Gesta- 
 tion, Forms of Agreement, &c. By W. HOLLOWAY BOTT, Solicitor. 
 Demy 12mo. 1894. 6*. 
 
 AG RICULTURAL LAW. Dixon. Fufe "Farm." 
 
 Spencer's Agricultural Holdings (England) Acts, 1883 T900, 
 
 ; with Explanatory Notes and General Forms ; also the Board of 
 Agriculture and County Court Rules and Forms, together with the 
 Allotments and Cottage Gardens Compensation for Crops Act, 1887. 
 Second Edition. By ATJBEEY J. SPENCEE, Esq., Barrister-at-Law. 
 Demy 8vo. 1901. 7s. 6d. 
 
 ""We do not heitate to recommend this book. The value of the book js 
 enhanced by the addition of a lar^e number of useful forms. The Index has 
 satisfactorily stood the test to which we subjected it." Law Journal. 
 
 -*.* All standard Law Works are kept in Slock, in tow calf and other bindingt. 
 
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 ANNUAL COUNTY COURT PRACTICE. The Annual County 
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 assisted by W. J. BROOKS, Esq., Barrister-at-Law. 2 vols. 
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 " The profession generally have gratefully recognized the very great value of 
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 ANNUAL DIGEST. Mews'. Vide "Digest." 
 
 ANNUAL LIBRARY, THE LAWYER'S: 
 
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 ANNUAL PRACTICE. The Annual Practice. 1902. Edited by 
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 2 vols. 8vo. (Out of print.) 
 
 *#* A few copies on thin paper in 1 Vol. may still be had, price net 25s. 
 Ir. Blake Odgers, K.C., has re-written the Notes to Orders XIX., XX., 
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 "A book which every practising English lawyer must have." Law Quarterly: 
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 ANNUAL STATUTES. Le\y. Vide "Statutes." 
 
 ARBITRATION. Mozley-Stark's Duties of an Arbitrator underthe 
 Workmen's Compensation Act, 1897. With Notes on the Act 
 and Rules, and Appendices containing the Act, a selection from the 
 Workmen's Compensation Rules, 1898, and the Medical Referees' 
 Regulations. By A. MOZLEY-STAEK, Solicitor. Roy. 12mo. 1898. bs. 
 Russell's Treatise on the Power and Duty of an Arbitrator, 
 and the Law of Submissions and Awards; with an Appendix 
 of Forms, and of the Statutes relating to Arbitration. By FRANCIS 
 RUSSELL. Eighth Edition. By EDWARD POLLOCK, Esq., an Official 
 Referee of the Supreme Court of Judicature, and the late HERBERT 
 RUSSELL, Esq., Barrister-at-Law. Royal 8vo. 1900. 11. 10s. 
 
 " The execution of the work leaves nothing to be desired." Law Times. 
 
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 been omitted." Law Journal. 
 
 AVERAGE. Hopkins' Hand-Book of Average. Fourth Edition. 
 
 By MANLEY HOPKINS, Esq. Demy 8vo. 1884. 11. If. 
 
 Lowndes' Law of General Average. English and Foreign. 
 
 Fourth Edition. By RICHARD LOWNDES, Average Adjuster. Author 
 
 of " The Law of Marine Insurance," &c. Royal 8vo. 1888. 11. 10s. 
 
 " The most complete store of materials relating to the subject in every par- 
 
 ticular." Law Quarterly Review. 
 
 AUCTIONEERS. Hart's Law relatingto Auctioneers. 
 
 HART, Esq., LL.D., Barrister-at-Law. Demy 8vo. 1895. 7s. Qd. 
 
 BAHAMAS. The Statute Law of the Bahamas. Comprising all the 
 Acts in force to 62 Viet. c. 33 inclusive. Royal 8vo. 1901. 21. 2s. 
 
 BANKING. Walker's Treatise on Banking Law. Second Edition. 
 By J. D. WALKEE, Esq., K.C. DemySvo. 1885. 16s. 
 
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 BANKRUPTCY. Lawrance's Precedents of Deeds of Arrange- 
 ment between Debtors and their Creditors; including Forms 
 with Introductory Chapters, also the Deeds of Arrangement Acts' 
 1887 and 1890, with Notes. Fifth Ed. By ABTHUB LAWEENCE' 
 Esq., Barrister-at-Law. Demy 8vo. 1900. 7. 6rfl 
 
 " Concise, practical, and reliable." Law Time*. 
 
 Williams' Law and Practice in Bankruptcy, Comprising the 
 Bankruptcy Acts, 1883 to 1890, the Bankruptcy Rules and Forms, 
 &c. By the Right Hon. Sir ROLAND L. VATOHAN WILLIAMS, a Lord 
 Justice of Appeal. Seventh Edition. By EDWAED WM. HANSELL, 
 Esq., Barrister-at-Law. Roy. 8vo. 1898. \l. io! 
 
 " The leading text-hook on bankruptcy." Law Journal 
 
 BILLS OF EXCHANGE. Campbell's Ruling Cases. Vol. IV. 
 
 Vide " Ruling Cases," p. 26. 
 
 Chalmers' Digest of the Law of Bills of Exchange, Promissory 
 Notes, Cheques and Negotiable Securities. Fifth Edition. 
 By His Honour Judge CHALMERS, Draughtsman of the Bills of 
 Exchange Act. Demy 8vo. 1896. 18. 
 
 " The leading book on bills of exchange." Law Journal. 
 
 "Each section having appended to it illustrations in the nature of short 
 statements of decided cases. These are prepared with that skilful conciseness of 
 which the learned Judge is a master." Law Times. 
 
 BILLS OF LADING. Pollock's Bill of Lading Exceptions. By 
 HENEY E. POLLOCK. Second Edition. Demy 8vo. 1896. 10s. 6d. 
 
 BUILDING SOCIETIES. Wurtzburg on Building Societies. 
 
 The Law relating to Building Societies, with Appendices containing 
 
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 and Statement, and Precedents of Rules and Assurances. Fourth Edit. 
 
 ByE. A. WTJHTZBUEG, Esq., Barrister-at-Law. DemySvo. 1902. 16*. 
 
 " A carefully arranged and carefully written book." Law Times. 
 
 "We are glad to see another edition of Mr. "Wurtzburg's treatise on the 
 
 law of building societies. It has recommended itself in practice as a useful 
 
 work on a subject of frequent importance, and it is convenient to have it brought 
 
 up to date." Solicitors' Journal, May 31, 1902. 
 
 CARRIERS. Carver's Treatise on the Law relating to the Car- 
 riage of Goods by Sea. Third Edition. By THOMAS GILBEBT 
 CAEVEB, Esq., K.C. Royal 8vo. 1900. 11. 16*. 
 
 " A recognized authority." Solicitors' Journal. 
 
 " Mr. Carver's work stands in the first rank of text-books written, by living 
 authors." Law Quarterly Beview, 
 
 " The law of common carriers is nowhere better explained." Law Times. 
 Macnamara's Digest of the Law of Carriers of Goods and Pas- 
 sengers by Land and Internal Navigation. By WALTEB HENEY 
 MACNAMAEA, Esq., Barrister-at-Law. Royal 8vo. 1888. 11. 8*. 
 CHANCERY, and Vide "Equity." 
 
 Darnell's Chancery Practice. ThePracticeof the Chancery Division 
 of the High Court of Justice and on appeal therefrom. Seventh 
 Edition, with references to the companion volume of Forms, and to 
 the Sixth Edition of Seton's Forms of Judgments and Orders. By 
 CECIL C. M. DALE, CHARLES W. GREENWOOD, SYDNEY E. WILLIAMS, 
 Esqrs., Barristers-at-Law, and FRANCIS A. STRINGER, Esq., of the 
 Central Office. 2 vols. Royal 8 vo. 1901. 51. 5s. 
 
 "An accurate and exhaustive store of the information required for con- 
 ducting proceedings in the Chancery Division." Solicitors' Journal. 
 
 " "With Daniell the practitioner is 'personally conducted,' and there are very 
 few lawyers who will not be grateful for such guidance, carried out as it is by 
 the collaboration of the most competent hands." Law Journal. 
 
 Daniell's Forms and Precedents of Proceedings in the Chancery 
 Division of the High Court of Justice and on Appeal there- 
 from. Fifth Edition, with summaries of the Rules of the Supreme 
 Court: Practical Notes; and references to the Seventh Edition of 
 Daniell's Chancery Practice, and to the Sixth Edition of Seton'a 
 Forms of Judgments and Orders. By CHAELES BURNBY, Esq., a 
 Masfpr of the Supreme Court. Royal 8vo. 1901. 21. 10. 
 
 " The book is too well-established in professional favour to stand in need of 
 commendation, but its reputation is likely to be enhanced by the present 
 edition." Solicitors' Journal. 
 
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 CHILDREN. Hall's Law Relating to Children. By W. CLABKE 
 HALL, Esq., Barrister-at-Law. Demy 8vo. 1894. 4*. 
 
 CHURCH LAW. Whitehead's Church Law. Being a Concise 
 
 Dictionary of Statutes, Canons, Regulations, and Decided Cases 
 
 affecting the Clergy and Laity. Second Edition. By BENJAMIN 
 
 WHITEHEAD, Esq., Barrister-at-Law. Demy 8vo. 1899. 10*. Gd. 
 
 "A perfect mine of learning on all topics ecclesiastical." Daily Telegraph. 
 
 The Statutes relating to Church and Clergy, with Preface 
 and Index. By BENJAMIN WHITEHEAD, Esq., Barrister-at-Law. 
 Royal 8vo. 1894. 6s. 
 
 CIVIL ENGINEERS. Macassey and Strahan's Law relating to 
 Civil Engineers, Architects and Contractors. With a Chapter 
 on Arbitrations. Second Edition. By L. LIVINGSTON MACASSEY and 
 J. A. STEAHAN, Esqrs., Barristers-at-Law. Demy Svo. 1897. 12s. &d. 
 
 COAL. Cockburn's Law of Coal, Coal Mining, and the Coal 
 Trade, and of the Holding, Working, and Trading with 
 Minerals generally. By JOHN HENEY COCZBUEN, Solicitor. 
 Royal 8vo. 1902. U. 16*. 
 
 " A book in which the whole law of mines and minerals is discussed fully and 
 with considerable ability." Law Journal, June 14, 1902. 
 
 " The work contains features not to be found in any other single book on the 
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 of the law upon this particular subject." The Sovereign, May 8, 1902. 
 
 "The work is carefully and accurately done. An excellent index completes 
 a good book." Mining Journal, June 7, 1902. 
 
 " The book is practical, concise, and comprehensive, and of the kind to be 
 instantly appreciated at its full value by a community trading so largely in 
 minerals." Birmingham Daily Gazette, June 13, 1902. 
 
 COLLISIONS. Marsden's Treatise on the Law of Collisions at 
 Sea. Fourth Edition. By REGINALD Gr. MAESDEN, Esq., Barrister- 
 at-Law. Demy 8vo. 1897. U. 8s. 
 
 COMMON LAW. Chitty's Archbold's Practice. Fourteenth 
 
 Edition. By THOMAS WILLES CHITTY, assisted by J. ST. L. LESLIE, 
 
 Esqrs., Barristers-at-Law. 2 vols. Demy 8vo. 1885. (Published 
 
 at '61. 13s. 6d.) Reduced to net, II. 10*. 
 
 Chitty's Forms. Vide " Forms." 
 
 Elliott's Outlines of Common Law. By MAETIN ELLIOTT, Esq., 
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 Pollock and Wright's Possession in the Common Law. 
 Parts I. and II. by Sir F. POLLOCK, Bart. , Barrister-at-Law. Part III. 
 by R. S. WEIGHT, Esq., Barrister-at-Law. 8vo. 1888. 8s. &d. 
 
 Shirley. Vide "Leading Cases." 
 
 Smith's Manual of Common Law. For Practitioners and Students. 
 Comprising the Fundamental Principles, with iiseful Practical Rulen 
 and Decisions. Eleventh Edition. By C. SPUELING, Esq., Barrister- 
 at-Law. Demy Svo. 1898. . 15s. 
 
 COMPANY LAW. Hamilton's Manual of Company Law. By 
 W. F. HAMILTON, Esq., LL.D. Lond., K.C. Second Edition. By 
 the Author, assisted by PEECY TINDAL-ROBEETSON, Esq., B.A., 
 Barrister-at-Law. Demy Svo. 1901. 11. Is. 
 
 " A sound and eminently useful manual of company law." Solicitors' Journal. 
 
 "Mr. Hamilton has resolved the Companies Acts into a number of proposi- 
 tions which make a sort^of codification of the law, the notes are very full, and 
 all cases on the subject seem to be cited." Law ilngazine. 
 
 "Everyone interested in the working of a company will find in tMs new 
 edition all thatis necessary from the legal p >it of view." The stn.-k Exchange. 
 
 " It is difficult to conceive a question relating to the law affecting companies 
 which cannot be answered by reference to this work." Southampton Times. 
 
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 CO M PA NY LAW continued. 
 
 Palmer's Company Law. A Practical Handbook for Lawyers and 
 Business Men. With an Appendix containing the Companies Acts, 
 1862 to 1900, and Rules. Fourth Edition. By FRANCIS BEAUFORT 
 PALMER, Esq., Barrister-at-Law, Author of " Company Precedents," 
 &c. Royal 8vo. 1902. 12. 6rf. 
 
 " The work is a marvel for clearness, fulness, and accuracy, nothing could 
 be better." Law Notes. 
 
 " Of especial use to students and business men -who need a clear exposition by 
 a master hand." Law Journal. 
 
 " The subject is dealt with in a clear and comprehensive manner, and in such 
 a way as to be intelligible not only to lawyers but to others to whom a knowledge 
 of Company Law may be essential." Law Students' Journal. 
 
 " All the principal topics of company are dealt with in a substantial manner, 
 the arrangement and typography are excellent, and the whole of the Statute 
 Law an indispensable adjunct is collected in an appendix. Perhaps what , 
 practising lawyers and business men will value most is the precious 
 
 quality Of practicality." Law Quarterly Review. 
 
 " Popular in style, also accurate, with sufficient references to authorities to 
 make the book useful to the practitioner." The Times. 
 
 Palmer's Companies Act, 1900, with Explanatory Notes, and 
 Appendix containing Prescribed and other Forma, top-ether with 
 Addenda to " Company Precedents." Second Edition. By FRANCIS 
 BEAUFORT PALMER, Esq., Barrister-at-Law. Royal 8vo. 1901. 7*. Gd. 
 " It is essentially a book that all interested in companies or company law 
 should procure." taw Times. 
 
 Palmer's Company Precedents. For use in relation to Companies 
 subject to the Companies Acts. 
 
 Part I. GENERAL FORMS. Arranged as follows: Promoters, 
 Prospectuses, Underwriting, Agreements, Memoranda and Articles 
 of Association, Private Companies, Employes' Benefits, Resolutions, 
 Notices, Certificates, Powers of Attorney, Banking and Advance 
 Securities, Petitions, "Writs, Pleadings, Judgments and Orders, 
 Reconstruction, Amalgamation, Special Acts. With Copious Notes 
 and an Appendix containing the Acts and Rules. Eighth Edition. 
 By FRANCIS BEAUFOFT PALMER, Esq., Barrister-at-Law, assisted by 
 the Hon. CHARLES MACNAGHTEN, K.C., and FRANK EVANS, Esq., 
 Barrister-at-Law. Royal 8vo. 1902. 11. 16. 
 
 " Despite his many competitors, Mr. Palmer 
 
 ' Holds solely sovereign sway and masterdom,' 
 
 and he does so by reason of his thoroughness, his practical good sense, and bis 
 familiarity with the business as well as the legal side of his subject." Law 
 Quarterly Ileview. April, 1902. 
 
 "Mr. Palmer's works on Company Law are all beyond criticism. He knows 
 more of the subject than, perhaps, any other member of the legal profession. 
 His books have for many practical purposes been trested as being, in fact, the 
 very law itself. It is a subject for congratulation of all concerned that this book 
 has been brought up to date, and that the important statute 63 & 64 Viet. c. 48 
 upon which Mr Palmer has writ tea a separate treatise is now considered 
 throughout the text." Law Mngnzirt'., May, 1932. 
 
 " No company lawyer can afford to be without it." Law Journal. 
 
 Part II. WINDING-UP FORMS AND PRACTICE. Arranged as 
 follows: Compulsory Winding-Up, Voluntary Winding-Up.Wind- 
 ing-Up under Supervision, Arrangements and Compromises, with 
 Copious Notes, and an Appendix of Acts and Rules. Eighth Edition. 
 By FRANCIS BEAUFORT PALMER, assisted by FRANK EVANS, Esqrs., 
 Barristers-at-Law. Royal 8vo. 1900. 11. 12*. 
 
 "Palmer's 'Company Precedents' is the book far rxct ll?nce for practitioners. 
 There is nothing we can think of which should be within the covers which we do 
 not find." Law Journal. 
 
 Part III. DEBENTURES AND DEBENTURE STOCK, including 
 Debentures, Trust Deeds, Stock Certificates, Resolutions, Prospectuses, 
 Writs, Pleadings, Judgments, Orders, Receiverships, Notices, Mis- 
 cellaneous. With Copious Notes. Eighth Edition. By FRANCIS 
 BEAUFORT PALMER, Esq., Barrister-at-Law. Royal 8vo. 1900. II. 1*. 
 
 " The result of much careful study Simply invaluable to debenture- 
 holders and to the legal advisers of such investors." Financial News. 
 
 "Embraces practically the whole law relating to debentures and debenture 
 
 stock. . . . Must take front rank among the works on the subject." Law Times. 
 
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 COMPANY LAW continued. 
 
 Palmer's Private Companies and Syndicates, their Formation and 
 Advantages ; being a Concise Popular Statement of the Mode of Con- 
 verting a Business into a Private Company, and of establishing and 
 working Private Companies and Syndicates for Miscellaneous Pur- 
 poses. Seventeenth Edition. By F. B. PALMKE, Esq., Barrister-at- 
 Law. 12mo. 1902. Net, Is. 
 
 Palmer's Shareholders, Directors, and Voluntary Liquidators' 
 Legal Companion. A Manual of Every-day Law and Practice for 
 Promoters, Shareholders, Directors, Secretaries, Creditors, Solicitors, 
 and Voluntary Liquidators of Companies under the Companies Acts, 
 1862 to 1900, with Appendix of useful Forms. Twenty-first Edit. 
 By F. B. PALMER, Esq., Barrister-at-Law. 12mo. 1902. Net, 2s. 6rf. 
 
 COMPENSATION. Cripps' Treatise on the Principles of the 
 
 Law of Compensation. Fourth Edition. By C. A. CEIPPS, Esq., 
 
 K.C. Royal 8vo. 1900. II. 5s. 
 
 " An accurate and complete exposition of the law relating to compensation." 
 
 Law Journal. 
 
 "Mr. Cripps' book is recognized as one of the best. . . . There are few men 
 whose practical knowledge of the subject exceeds that of the learned author." 
 Law Quarterly Review. 
 
 COMPOSITION DEEDS. Lawrance. Fwfo "Bankruptcy." 
 CONDITIONS OF SALE. Farrer. Vide " Vendors & Purchasers." 
 
 Webster. Vide " Vendors and Purchasers." 
 CONFLICT OF LAWS. Campbell's Ruling Cases. Vol. V. Vide 
 
 "Ruling Cases," p. 26. 
 
 Dicey's Digest of the Law of England with reference to the 
 
 Conflict of Laws. By A. V. DICEY, Esq., K.C., B.C.L. With Notes 
 
 of American Cases, by Professor MOORE. Royal 8vo. 1896. II. 10*. 
 
 " One of the most valuable books on English law which has appeared for 
 
 some time. The Times. 
 
 CONSTITUTION. Anson's Lawand Custom of the Constitution. 
 By Sir WILLIAM R. ANSON, Bart., Barrister-at-Law. Demy 8vo. 
 Parti. Parliament. Third Edition. 1897. 12s. 6d. 
 
 Part II. The Crown. Second Edition. 1896. 14*. 
 
 CONTRACT OF SALE. Blackburn. Vide "Sales." 
 
 Moyle's Contract of Sale in the Civil Law. By J. B. MOTLB, 
 Esq., Barrister-at-Law. 8vo. 1892. 10*. 6d. 
 
 CONTRACTS. Addison on Contracts. A Treatise on the Law of 
 Contracts. Tenth Edition. By A. P. PERCEVAL KEEP and WILLIAM 
 E. GORDON, Esqrs., Barristers-at-Law. Royal 8vo. (In the press.) 
 " This and the companion treatise on the law of torts are the most complete 
 works on these subjects, and form an almost indispensable part of every lawyer's 
 library." Law Journal. 
 
 Anson's Principles of the English Law of Contract. By Sir 
 W. R. ANSON, Bart.. Barrister-at-Law. Ninth Edit. 1899. 10s. 6d. 
 
 Fry. Vide "Specific Performance." 
 
 Leake's Law of Contracts. Principles of the Law of Contracts. 
 By the lateS. M. Leake. Fourth Edition. By A. E. RANDALL, Esq., 
 Barrister-at-Law. Royal Svo. 1902. (Just ready.) 32*. 
 
 Pollock's Principles of Contract. A Treatise on the General 
 
 Principles concerning the Validity of Agreements in the Law of 
 
 England. Seventh Edition. By Sir FREDERICK POLLOCK, Bart., 
 
 Barrister-at-Law, Author of " The Law of Torts," "Digest of the 
 
 Law of Partnership," &c. Demy Svo. 1902. II. 8*. 
 
 " A work which, in onr opinion, shows great ability, a discerning intellect, a 
 
 comprehensive mind, and painstaking industry." Law Journal. 
 
 CONVEYANCING. Brickdale & Sheldon. Vide " Land Transfer." 
 
 Dart. Vide " Vendors and Purchasers." 
 
 Dickins' Precedents of General Requisitions on Title, with Ex- 
 planatory Notes and Observations. Second Edition. By HERBERT 
 A. DICKINS, Esq., Solicitor. Royal 12mo. 1898. 5*. 
 
 " We cannot do better than advise every lawyer with a conveyancing practice 
 to purchase the little book and place it on his shelves forthwith." Law Notes. 
 
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 119 & 120, CHANCERY LANE, LONDON, W.O. 7 
 
 CONVEYANCI NG continued. 
 
 Eaton and Purcell. Vide "Land Charges Acta." 
 Farrer. Vide " Vendors and Purchasers." 
 
 Greenwood's Manual of the Practice of Conveyancing, showing 
 the present Practice relating to the daily routine of Conveyancing in 
 Solicitors' Offices. To which are added Concise Common Forms in 
 Conveyancing. Ninth Edit. Edited by HAEBY GREENWOOD, M.A.. 
 LL.D., Esq., Barrister-at-Law. Roy. 8vo. 1897. II. 
 
 " One of the best expositions which the English lawyer possesses of the present 
 practice relating to the daily routine of conveyancing in solicitors' offices." 
 Literature. 
 
 ' We should like to see it placed by his principal in the hands of every articled 
 clerk. One of the most useful practical works we have ever seen." Law Stu. Jo. 
 
 Hood and Challis'Conveyancing,Settled Land, and Trustee Acts, 
 and other recent Acts affecting Conveyancing. With Commentaries. 
 Sixth Edition. By PEECY F. WHEELEE, assisted by J. I. SHELING, 
 Esqrs., Barristers-at-Law. Royal 8vo. 1901. I/. 
 
 " That learned, excellent and useful work." Law Times. 
 
 "This is the best collection of conveyancing statutes with which we are 
 acquainted. . . . The excellence of the commentaries which form part of this 
 book is so well known that it needs no recommendation from us." Law Journal. 
 
 Jackson and Gosset's Precedents of Purchase and Mortgage 
 Deeds. By W. HOWLAND JACKSON and THOEOLD GOSSET, Esqrs., 
 Barristers-at-Law. Demy 8vo. 1899. 7*. Qd. 
 
 "Not the least meiit of the collection is that each Precedent is complete in 
 itwlf, HO that no dipping about and adaptation from other parts of the book are 
 necessary." Law Journal. 
 
 %* This forms a companion volume to "Investigation of Title" bj 
 the same Authors, vide p. 17. 
 
 Prideaux's Precedents in Conveyancing With Dissertations on 
 
 ita Law and Practice. 18th Edit. By JOHN WHITCOMBE and 
 
 BENJAMIN LENNAED CHEEEY, Esqrs., Barristers-at-Law. 2 vols. 
 
 . Royal 8vo. 1900. 3/. 10*. 
 
 " ' Prideaux ' is the best work on Conveyancing." Law Journal. 
 
 " Accurate, concise, clear, and comprehensive in scope, and we know of no 
 treatise upon Conveyancing which is so generally useful to the practitioner." 
 Lav Times. 
 
 "Recfnt legislation has compelled the Editor to re-write some of the pre- 
 liminary dissertations. He has evidently t.iken great pains to incorporate the 
 effect of the Land Transfer Act of 1897." The Times. 
 
 Strachan's Practical Conveyancing. By WALTEB STEACHAN, Esq., 
 Barrister-at-Law. Royal 12mo. 1901. 8. 6d. 
 
 Webster. Vide " Vendors and Purchasers." 
 
 CORONERS. Jervis on Coroners. The Coroners Acts, 1887 and 
 1892. With Forms and Precedents. Sixth Edition. By R. E. 
 MELSHEUIEE, Esq., Barrister-at-Law. Post 8vo. 1898. 10*. 6d. 
 
 COSTS. Johnson's Bills of Costs in the High Court of Justice 
 and Court of Appeal, in the House of Lords and the Privy Council ; 
 with the Scales of Costs and Tables of Fees in use in the Houses of 
 Lords and Commons, relative to Private Bills ; Election Petitions, 
 Parliamentary and Municipal. Inquiries and Arbitrations under the 
 Lands Clauses Consolidation Act, the Light Railway Act and other 
 Arbitrations. Proceedings in the Court of the Railway and Canal 
 Commission, in the County Court and the Mayor's Courts. The 
 Scales of Costs and Tables of Fees in use in the Court of Passage, 
 Liverpool. Conveyancing Costs and Costs between Solicitors and 
 their Clients ; with Orders and Rules as to Costs and Court Fees, 
 and Notes and Decisions relating thereto. By HORACE MAXWELL 
 JOHNSON, Esq., Barrister-at-Law. Second Edition. Royal 8vo. 
 1901. 11. 15*. 
 
 "A useful and sufficient guide to the subject." Law QyarUrJy Review. 
 " It is difficult to conceive how any costs clerk or solicitor can go wrong with 
 a work of this kind to guide him." Law Times. 
 
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 C O STS continued. 
 Summerhays and Toogood's Precedents of Bills of Costs. 
 
 Seventh Edition. By THORNTON TOOGOOD, THOMAS CHARLES SUMMER- 
 HAYS, and C. GILBERT BARBEB, Solicitors. Royal 8vo. 1896. II. 10s. 
 Webster's Parliamentary Costs, Private Bills, Election Petitions, 
 Appeals, House of Lords. Fourth Edition. By C. CAVANAOH, Esq., 
 Barrister-at-Law. Post 8vo. 1881. 11. 
 
 COUNTY COURTS. The Annual County Court Practice, 
 1902. By His Honour Judge SMYLY, K.C., assisted by W. J. 
 BEOOKS, Esq., Barrister-at-Law. 2 vols. Demy 8vo. 11. 5s. 
 
 " Invaluable to the County Court practitioner." Law Journal. 
 
 COVENANTS. Hamilton's Concise Treatise on the Law of 
 Covenants. By G. BALDWIN HAMILTON, Esq., Barrister-at-Law. 
 Demy 8vo. 1888. 7s. 6d. 
 
 CRIMINAL LAW. Archbold's Pleading, Evidence and Practice in 
 Criminal Cases. With the Statutes, Precedents of Indictments, &c. 
 Twenty-second Edition. By WILLIAM F. CEAIES and GUY STEPHEN - 
 BON, Esqrs., Barristers- at-Law. Demy Svo. 1900. II. Us. 6d. 
 
 " Archbold ' is the one indispensable book for every barrister or solicitor who 
 practises regularly in the criminal Courts." Solicitors' Journal. 
 
 Chitty's Collection of Statutes relating to Criminal Law. (Re- 
 printed from ' ' Chitty' s Statutes. ' ' ) With an Introduction and Index. 
 By W. F. CEAIES, Esq., Barrister-at-Law. Royal Svo. 1894. 10s. 
 
 Disney and Gundry's Criminal Law. A Sketch of its Principles 
 and Practice. By HENEY W. DISNEY and HAEOLD GUNDEY, Esqrs., 
 Barristers-at-Law. Demy Svo. 1895. 7s. 6d. 
 
 Kenny's Outlines of Criminal Law. Demy Svo. 1902. 10s. 
 
 Kenny's Selection of Cases Illustrative of English Criminal 
 Law. DemySvo. 1901. 12s. 6d. 
 
 Kershaw's Brief Aids to Criminal Law. With Notes on the Pro- 
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 HUSBAND AND WIFE. Lush's Law of Husband and Wife, 
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 26 
 
 STEVENS AND SONS, LIMITED, 
 
 RULING CASES. Campbell's Ruling Cases. Arranged, An- 
 notated, and Edited by ROBEET CAMPBELL, of Lincoln's Inn, Esq., 
 Barrister- at- Law, Advocate of the Scotch Bar, assisted by other 
 Members of the Bar. With American Notes by IEVINQ BEOWNE, 
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 JONES, A.B., LL.B. (Harv.). Royal 8vo. 1894-1901. Half vellum, 
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 ** Sold separately, net, each 11. bs. 
 
 I. Abandonment Action. 
 
 II. Action Amendment. 
 III. Ancient Light Banker. 
 IV.- Bankruptcy Bill of Lading. 
 
 V. Bill of Sale Conflict of Laws. 
 VI. Contract. 
 VII. Conversion Counsel. 
 VIII. Criminal Law Deed. 
 IX. Defamation Dramatic and 
 Musical Copyright. 
 
 X. Easement Estate. 
 XI. Estoppel Execution. 
 XII. Executor Indemnity. 
 
 XIII. Infant Insurance. 
 
 XIV. Insurance Interpretation. 
 
 XV. Judge Landlord and Tenant. 
 XVI. Larceny Mandate. 
 XVII. Manorial Right- Mistake. 
 XVIII. Mortgage-Negligen.ee. 
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 XX. Patent. 
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 XXII. Quo Warranto Release. 
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 XXIV. Search Warrant Telegraph. 
 XXV. Tenant-Wills. 
 
 A COMPLETE INDEX OF CASES AND A GENERAL INDEX 
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 PLAN OF THB WOEK. 
 
 All the useful authorities of English Case Law, from the earliest period 
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 The aim of the Work is to furnish the practitioner with English Case 
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