CHAPTER XLVI. CAVEAT AGAINST A DECREE. Ir a party is desirous of appealing to the Lord Chancellor against a decree or order of the Master of the Rolls, or of the Vice Chancellor, or of procuring a rehearing, but has not his petition of appeal or re-hearing prepared, he should enter a caveat to prevent the decree or order from being enrolled. The caveat is entered with the secretary of decrees and injunctions, and stays the signing a decree twenty-eight days, or a lunar month, not only after pronouncing the decree, but from the time of the decree being presented to the great seal to be signed in order to its enrolment, and notice thereof given by the Lord Chancellor's secretary to the clerk in court of the other side.(1) The twenty-eight days are twenty-eight clear days, and service of notice on the clerk in court, of the docquet having been presented for signature, is sufficient service.(2) If a decree is not presented for enrolment within six months after it bears date, it is necessary to present a petition to enrol the decree nunc pro tunc, and it is, in the case cited, said, that strictly, the docquet ought not to be presented until after the order to enrol nunc pro tunc has been passed and entered; but such is not the practice, it *being the invariable rule for the secretary to [ *427 ] prepare the petition, and present both the petition and the docquet at the same time for the signature of the Lord Chancellor. If a caveat is not prosecuted within a month after notice, (3) to the opposite clerk in court, by the party that entered the same, such caveat is of no force.(4) The docquet of the decree should bear date, and is to be considered as enrolled on the day it is left for enrolment with (1) 2 Eq. Ca. Ab. 280. Burnet v. Theobald, 1 P. W. 609. Robinson v. Newdick, 3 Mer. 13. (2) Robinson v. Newdick, 3 Mer. 13. (3) The words of the order are," shall be left to be signed with the proper officer," and it does not say anything about notice; but it is after notice. (4) Beam. Ord. 309. the secretary, and not on the day it is actually signed; and a caveat tendered at the proper office, after a decree has been delivered to the secretary for enrolment and forwarded to the Lord Chancellor in order to be signed, comes too late to prevent the effect of enrolment, although in point of fact the signature was not adhibited till after the caveat was tendered,(1) The effect of enrolling a decree, is to make it the decree of the Lord Chancellor, and thereby to prevent the adverse party appealing to the Lord Chancellor, and forcing him at once to the House of Lords. It also prevents a petition of re-hearing. (1) Barnes v. Wilson, 1 R. & M. 486. Eng. Chan. Reps. iv. 527. CHAPTER XLVII. TO ENFORCE DECREES AND ORDERS. By writ of execution and Substituted service of, 430. Where personal demand Decree how enforced, 428. Against parties on record, 429. attachment, 429. Service of writ of execution, 429. When necessary to limit a time in a decree or order, 430. or by attorney is required, 430. Attachment for non-performance of an order, 431. Proceedings upon attachment, 431. Sequestration, 432. Origin of writ, 433. Granted against a defendant in Ireland, 434. Nature and effect of sequestration, 434. Sequestrators, powers and duties of, 434. Effect of sequestration on a purchaser pendente lite, 435. Fees to sequestrators, 436. When a sequestration abates or determines, 437. Remedy where levy under sequestration insufficient, 438. To enforce decrees and orders against persons having privilege of peerage, or of parliament, 440. Against persons not parties on record, 440. Against a married woman, 442. Against a corporation, 443. Under 1 Will. 4, c. 36, 443. Remedy where a party cannot be served, 445. When the clerk in court of a party is dead, 446. Persons issuing or executing process are not to be sued at law, 447. Writ of assistance, 447. THOUGH it is said that the Court of Chancery acts upon the person and not upon the estate, and that a decree will not bind the right of the land,(1) yet this court not only commits parties for non-compliance with its decrees and orders, but also sequesters personal estates, and the rents and profits of real estates, and by a writ of assistance orders the delivery up of possession of the estate itself, and, under certain acts of Parliament, compels a conveyance of land.[a] It also possesses this particular advantage, that personal committal is no bar to proceeding against the property of the offender,(2)[b] whereas, at law, if a capias satisfacere be executed, a fieri facias cannot issue.(3)[c] There is a great distinction in the mode of (1) 1 Eq. Ca. Ab. 130. (2) 2 Eq. Ca. Ab. 712. (3) Wyatt's P. R. 388. [a] This Court has power to issue all process to carry its decrees into effectual execution. Ludlow v. Lansing, 1 Hopk. 231. No action at law will lie, to enforce a decree in Chancery, within the territorial jurisdiction of the Court of Chancery; that court enforces its own decrees. Richardson v. Jones, 3 Gill & Johns. 163. [b] It is no objection, in this Court, to the set-off of one judgment against another, on motion, that the party making the application has the adverse party in execution on the judgment. Utica Ins. Co. v. Power, 3 Paige, 365. [c] At law, the arrest and detention in custody of a party under a ca. sa. is a satis faction of the debt. Cooper v. Bigalow, 1 Cowen, 56; Poucher v. Holley, 3 Wend. 184; Wakeman v. Lyon, 9 Wend. 241; Chapman v. Hatt, 11 Wend. 41. But it ceases to be a satisfaction, if the party be discharged under an insolvent act, or escape; M'Guinty v. Herrick, 5 Wend. 240; or if the defendant be discharged on account of any irregularity VOL. I. 34 |