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such punishment as from the whole shall appear reasonable : Punishneither will the Court discharge the party upon a shifting or ment. evasive answer to any material part of the charge against him, but will punish him in the same manner as if he had confessed it. The discretion of the Court, on setting aside an attachment Setting against the Sheriff for the escape of a prisoner taken on a ca. sa., aside atis to be governed by the principle laid down in an action for tachment damages, under 5 & 6 Vict. c. 98, s. 31; and, if necessary, upon terms.
an action will be directed to ascertain the amount of damages, the attachment standing over. The true measure of damages in such a case is the value of the custody of the debtor at the moment of the escape; and no deduction is to be made on account of anything which the plaintiff might have obtained by diligence after escape; but if the plaintiff has done anything to aggravate the loss occasioned by the Sheriff's neglect, or has prevented the Sheriff from retaking the debtor, the damages will be materially affected by such conduct.a
Attachments for non-payment of costs, and for non-performance of an award, are in the nature of civil executions; so also are attachments out of Chancery for want of appearance, answer, and the like.
Attachment for Non-payment of Costs.
Victoria by the grace of God of the united kingdom of Great Britain and Ireland queen defender of the faith to the Sheriff of greeting: Attach C. D. so that you have his body before us at Westminster on to answer us of and concerning such things as on our behalf shall be then and there objected against him: and have there then this writ. Witness
A. B. against C. D. for non-payment of £ suant to a rule of Court, dated the day of
costs taxed by Master
Victoria &c. to the Sheriff of greeting We command you to attach C. D. so as to have him before us in our Court of Chancery immediately after the receipt of this writb [or "on the morrow of All Souls next ensuing" or 66 on the day of next ensuing"] wheresoever the said Court shall then be there to answer to us as well touching a contempt which C. D. as 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 ourself at Westminster &c.
a Arden v. Goodacre, 11 C. B. 367, 371.
b All attachments may be made returnable on the old general return days in term, such as the Morrow of All Souls, &c.; or if the party reside or be in London, or within twenty miles
thereof, they may be made returnable
When the writ has been sealed, it must be entered in the Registrar's Office, previously to its being executed; after the entry, it is delivered, as in other cases, to the Sheriff for execution. Its execution is the same as in other process against the person. A warrant is made out by the Sheriff to his Bailiff, and the Bailiff arrests the party. Upon arrest, the party either goes Bail-bond. to prison, or gives a bail-bond.b
This bond is not assignable, so as to enable the assignee to sue upon it in his own name."
I have attached the within-named C. D. and have his body ready on the day and at the place within contained as within I am commanded.
The answer of
Attachment for the Peace.
Victoria &c. To the Sheriff of greeting: Because A. B. was afraid that he might be in many ways disquieted and made grievous concerning his life and maiming of his limbs by C: D. as the said A. B. hath made oath before us: Therefore we command you that you do not forbear by reason of any liberty in your bailiwick, but that you attach the said C. D. so that you have him before us at W. on &c. to find then before us sufficient security for the keeping of our peace by him towards us and all our people and especially towards the said A. B. under a certain penalty then to be imposed on him by us; and when you have so attached the said C. D. you are to discharge him on bail until the said day by sufficient manucaptors who shall be willing to bail him under a certain penalty reasonably to be imposed upon them by you as well for the keeping his day as for the keeping our peace by him in the mean time; and for doing your office in this behalf you are only to take of the said C. D. 2s. 4d. Witness &c.
By the Court,
This writ is granted on motion in open Court and the cause thereon recorded according to the form of the statute in such case made and provided,
WRIT OF ASSISTANCE.
THE party to whom possession of an estate has been ordered by a decree or order to be delivered up, upon due service of a decree
a Daniell's Ch. Pr. 431-9.
b Morris v. Hayward, 6 Taunt. 569.
d It is made returnable on a day certain in term, and tested on the day the articles are exhibited, or on the day it issues. Corner, Cr. P. 20; ib. App. 22.
or order for delivery of possession, and upon proof made of demand or refusal to obey such order, is entitled to an Order for a writ of assistance.a
Writ of Assistance.b
Victoria &c. to the Sheriff of as well present as for the future greeting: Whereas according to the tenor and true meaning of an order made in a certain cause depending in our Court of Chancery between A. B. complainant and C. D. defendant the said C. D. was ordered and enjoined to deliver up possession to in the said order named of all that capital messuage or mansion-house lands and premises in the pleadings in the said cause mentioned yet nevertheless he the said
and other ill-disposed persons his accomplices have refused to pay obedience thereto and detain and keep the possession of the said mansion-house lands and premises in manifest contempt of us and our said Court: know ye therefore that we being willing and desirous that justice should be done to the said in this behalf do give unto you full power and authority to place and put the said -or his assigns without delay into the full peaceable and quiet possession of all and singular the said mansion-house lands and premises with their appurtenances and from time to time as often as there shall or may be occasion to maintain and keep him and his assigns in such peaceable and quiet possession according to the intent and true meaning of the said order of our said Court and therefore we do hereby command and enjoin you that immediately after your receipt of this writ you do go and repair to and enter into and upon the said messuage lands and premises and that you do remove eject and expel the said his tenants servants and accomplices each and every of them out of and from the said mansion-house and every part and parcel thereof and that you do place and put the said and his assigns into the full peaceable and quiet possession thereof and defend and keep them and their said assigns in such peaceable and quiet possession when and as often as any interruption may or shall from time to time be given or offered to them or any of them according to the true intent and meaning of the said order and herein you are not in anywise to fail. Witness ourself at Westminster the in the our reign.
Writ of Assistance.
A. B. v. C. D.
(Names and address of agent and solicitor.)
a See Daniell's Ch. Pr. 1051.
to the statement in the order.
b This writ must be varied according
WRITS OF EXECUTION.
BEFORE entering into detail of matters relating to writs of execution, it seems convenient to place here two other subjects, essentially and inseparably interwoven with them, namely, interpleader, and the effect of a judgment, decree, or order, upon the lands or goods of the debtor.
By the common law, if the property in goods taken under an position be- execution was disputed, (which frequently occurred in the case of fore Interbankruptcy; between the Crown and an execution creditor, and pleader Act. the like,) a Court would, in general, enlarge the time for making the Sheriff's return; until the right of property was determined between the claimants, or until one of the claimants had given him a sufficient indemnity. If the doubt arose from a point of law, the Court would, in general, interpose its equitable jurisdiction in his favour; that is, where he acted fairly, and was guilty of no neglect of duty; but, where the doubt arose from mere matter of fact, (as he might, as was said, summon an inquest to say whose property it was, before he returned the writ,) that indulgence was granted only under special circumstances, and in particular cases. Other hardships, too, pressed, and still, indeed, do so, on the Sheriff; he could not, for instance, nor can he now, file a bill of interpleader in equity;d again, the costs of applying to the Court for enlarging the time for making his return were Interplea- not, nor are they, under the Interpleader Act, in general, allowed him. By the Interpleader Act (1 & 2 Will. 4, c. 58) relief is afforded to Sheriffs and other officers in such cases. Section 6, after reciting that difficulties sometimes arise in the execution
a Wells v. Pickman, 7 T. R. 174; Thruston v. Thruston, 1 Taunt. 120; MacGeorge v. Birch, 4 Taunt. 585.
b Colley v. Hardy, 5 M. & R. 123; Timbrell v. Mills, W. Bl. 205.
c7 T. R. 174.
d Slingsby v. Boulton, 1 V. & B. 334.
e Rex v. Cooke, M'Cl. & Y. 198; Tidd's New Pr. 575; ib. 1017.
of process against goods and chattels issued by or under the authority of the said Courts, by reason of claims made to such goods and chattels by assignees of bankrupts, and other persons, not being the parties against whom such process has issued, whereby Sheriffs and other officers are exposed to the hazard and expense of actions; and it is reasonable to afford relief and protection, in such cases, to such Sheriffs and other officers, enacts, "That when any such claim shall be made to any goods or chattels taken or intended to be taken in execution under any such process, or to the proceeds or value thereof, it shall and may be lawful to and for the Court from which such process issued, upon application of such Sheriff or other officer made before or after the return of such process, and as well before as after any action brought against such Sheriff or other officer, to call before them by rule of Court, as well the party issuing such process, as the party making such claim, and thereupon to exercise for the adjustment of such claims, and the relief and protection of the Sheriff or other officer, all or any of the powers and authorities hereinbefore contained, and make such rules and decisions as shall appear to be just, according to the circumstances of the case; and the costs of all such proceedings shall be in the discretion of the Court."
The object of the Act was to give protection to the Sheriff, Object of wherever, by reason of claims to the property seized, he was in the Act. danger of actions by the execution creditor, if he yielded to the claim, or, by the claimant, if he executed the writ. But it did not mean to protect him where the resistance was to the writ itself, i.e. where the party in the cause objected to any execution on his own goods; for then, the process itself, properly executed, would be his defence. In the case of Hollier v. Laurie, the intention of the Legislature was a material question. Under a fi. fa. against the goods of M. the Sheriff entered the apartments of H. An order for relief was granted to the Sheriff, and an issue was directed to try the right of property in the goods, in which H. succeeded. H. afterwards brought an action of trespass for entering the apartment. The Court unanimously declared that the Act was silent as to giving any protection in cases of wrong done to the realty. In other words, that it only relates to cases where the party, upon whom the claim is made, having no interest himself, is willing to hand over the subject of dispute; and, as a consequence, to cases only where the subject is capable of being so handed over.
In arranging the decisions on the Act, it may be proper to consider them in the following order :- 1. Those within the statute. 2. Those not within the statute. 3. Application, time of, &c. 4. The consequence of appearance or non-appearance of the parties. 5. Costs, &c.
The foundation of an
application, under this statute, is a There must
a Fenwick v. Laycock, 2 Q. B. 111. b 4 D. & L. 211; 3 C. B. 334, S. C.:
and see Abbott v. Richards, 3 D. &
be a claim.