: 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 Forms in Appendix F. shall be used, with such variations as circumstances may require (a). (a) An order of which there was no entry and the original of which was lost was directed to be redrawn (Ex parte Dean of St. Paul's, W. N. (1870), 93; 18 W. R. 724; and see Russell v. Tapping, 3 W. R. 379). For these forms, see infra. [Rule 2 applies only to the Queen's Bench Division.] Ord. XLI. ment pro 3. Where any judgment is pronounced by the Court or a judge in Date of entry Court, the entry of the judgment shall be dated as of the day on which where judgsuch judgment is pronounced, unless the Court or judge shall other- nounced in wise order, and the judgment shall take effect from that date (b): Provided that by special leave of the Court or a judge a judgment may be ante-dated or post-dated (c). (b) See Re Risca Coal Co., 10 W. R. 701. (c) As to ante-dating or post-dating orders, see Turner v. London & South Western Ry., 17 Eq. 561; Winkley v. Winkley, 29 W. R. 629; 44 L. T. 572; Daniell, 810; Seton, 1546. In the former case the plaintiff died after hearing but before judgment, and the Court dated the judgment as of the date of the hearing. Court. cases. 4. In all cases not within the last preceding rule, the entry of judg- In other ment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that date. Order to do an act to limit time for per 5. Every judgment or order made in any cause or matter requiring any person to do an act (d) thereby ordered shall state the time, or the time after service of the judgment or order, within which the act is to formance. be done, and upon the copy of the judgment or order which shall be served upon the person required to obey the same there shall be indorsed a memorandum in the words or to the effect (d) following, viz. :— "If you, the within-named A. B., neglect to obey this judgment [or Indorsement. 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]" (dd). (d) See Treherne v. Dale, 27 Ch. D. 66. (dd) This rule is taken from Cons. Ord. XXIII. r. 10, as varied by Ord. 7 Jan. 1870, rule 1 (L. R. 5 Ch. xxxiii.); it applies to an order which may be served on the solicitor of the party (Hampden v. Wallis, 26 Ch. D. 746). If the order omits to fix a time the Court on motion will make a supplemental order for that purpose (Needham v. Needham, 1 Ha. 633; Morley v. Clavering, 30 Beav. 108; Gilbert v. Endean, 9 Ch. D. p. 266); "forthwith" is a sufficient expression of time (Thomas v. Nokes, 6 Eq. 521; Re Nowell, 11 W. R. 896). Where the order names a day for doing the act and does not merely limit a time after service for that purpose, it must be served before the day named (Adkins v. Bliss, 2 De G. & J. 286); if the service cannot be effected before that day an order must be obtained enlarging the time, or fixing a new period where the day appointed has passed (Duffield v. Elwes, 2 Beav. 268); and such further order must be endorsed and served like the original order (Adkins v. Bliss). Substituted service of the judgment or order may be permitted if a proper case can Service. be shown, the order for which is obtained on ex parte motion; see Daniell, p. 878; and see Ord. IX. and notes thereto, ante, p. 316, and Ord. LXVII. infra, as to service generally. Ord. XLI. Entry of judgment on filing of affi davit or production of document. Entry of judgment pursuant to order or certificate. Certificate of amount of judgment to be filed. Entry of judgment by consent where defendant has appeared by solicitor. Where defendant has not appeared, or appeared in person. No demand necessary when money ordered to be paid, or property to be delivered up or transferred. Non-performance of condition on ment, &c. has been obtained. 6. Where under the Acts or these rules, or otherwise, it is provided that any judgment may be entered upon the filing of any affidavit or production of any document, the officer shall examine the affidavit or document produced, and if the same be regular and contain all that is by law required, he shall enter judgment accordingly. 7. Where by the Acts or these rules, or otherwise, any judgment may be entered pursuant to any order or certificate, or return to any writ, the production of such order or certificate sealed with the seal of the Court, or of such return, shall be a sufficient authority to the officer to enter judgment accordingly. 8. Where reference is made to a master to ascertain the amount for which final judgment is to be entered, the master's certificate shall be filed in the central office when judgment is entered. 9. In any cause or matter where the defendant has appeared by solicitor, no order for entering judgment shall be made by consent unless the consent of the defendant is given by his solicitor or agent. 10. Where the defendant has not appeared, or has appeared in person, no such order shall be made unless the defendant attends before a judge and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, except in cases where the defendant is a barrister, conveyancer, special pleader, or solicitor. ORDER XLII. EXECUTION. 1. Where any person is by any judgment or order directed to pay any money, or to deliver up or transfer any property real or personal to another, it shall not to be necessary to make any demand thereof, but the person so directed shall be bound to obey such judgment or order upon being duly served with the same without demand (e). (e) This rule is taken from Cons. Ord. XXIX. r. 1. As to whether the service should be personal or not, see Re a Solicitor, W. N. (1884), 217. See, however, note (s) to r. 17, post, p. 449. 2. Where any person who has obtained any judgment or order upon condition does not perform or comply with such condition, he which judg- shall be 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 condition 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 (ƒ). Judgment for recovery of money. (ƒ) This rule is taken from Cons. Ord. XXIII. r. 22. 3. A judgment (g) for the 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 principal Act (h) might have been enforced at the Ord. XLII. time of the passing thereof (i). (g) "Judgment" includes "decree" (Judicature Act, 1873, s. 100); and orders "Judgment." may be enforced in the same way as judgments to the same effect (rule 24, post, p. 451, and note thereto). (h) "The principal Act" means the Judicature Act, 1873 (Ord. LXXI. r. 1, "Principal infra). Act." Former modes (i) There were five different modes of enforcing a judgment for money, viz. :(1) By writ of fi. fa. or elegit; (2) by sequestration; (3) by attachment of debts; of enforcing (4) by attachment or committal for six weeks in cases allowed by the Debtors Act, judgment. 1869; (5) by proceeding under the Judgment Acts. As to the Debtors Act, see ante, p. 187 et seq.; and as to execution generally, see Daniell, 823; Seton, 1555. 4. A judgment for the payment of money into Court may be en- For payment forced by writ of sequestration, or in cases in which attachment is of money into authorised by law, by attachment (k). (k) As to sequestration, see Ord. XLIII. r. 6, post, p. 454; and as to attachment, see Ord. XLIV., post, p. 455. A judgment for payment of money into Court may also be enforced by the ap pointment of a receiver (Stanger Leathes v. Stanger Leathes, W. N. (1882), 71). Court. 5. A judgment for the recovery or for the delivery of the possession For recovery of land may be enforced by writ of possession (1). (1) As to the writ of possession, see Ord. XLVII., post, p. 462. An order for foreclosure absolute is not a judgment for the recovery of land within the meaning of this rule (Wood v. Wheater, 22 Ch. D. 281). of land. 6. A judgment for the recovery of any property other than land or For recovery money may be enforced : (a.) By writ for delivery of the property: (b.) By writ of attachment: of property other than money or land. (c.) By writ of sequestration (m). (m) As to these writs, see Ord. XLVIII., post, p. 463; Ord. XLIV., post, p. 455; and Ord. XLIII. r. 6, post, p. 454. 7. A judgment requiring any person to do any act other than the To do act payment of money, or to abstain from doing anything, may be en- other than forced by writ of attachment, or by committal. 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 execution 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. payment of thing. execution," execution against any party." 9. Where a judgment or order is to the effect that any party is entitled to any relief subject to or upon the fulfilment of any condition Where judgor contingency, the party so entitled may, upon the fulfilment of the ment is upon 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 conditions. to issue execution against such party. And the Court or judge may, Leave to issue if satisfied that the right to relief has arisen according to the terms of execution. the judgment or order, order that execution issue accordingly, or may Ord. XLII. Execution against partnership firm. Issue of writ of execution. Præcipe for writ. Name of solicitor or party suing writ. 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. 10. Where a judgment or order is against a firm, execution may issue : (a.) Against any property of the partnership; (b.) Against any person who has appeared in his own name under Ord. 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 party 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 (n). (n) Where a firm is sued in the firm's name the judgment must be against the firm, and cannot be separately entered against one partner who has failed to appear (Jackson v. Litchfield, 8 Q. B. D. 474). But where judgment has been recovered against the firm the plaintiff may bring an action on the judgment against any individual member (Clark v. Cullen, 9 Q. B. D. 355). See further, as to execution against partners, Davis v. Morris, 10 Q. B. D. 436; Munster v. Railton, 10 Q. B. D. 475; 11 Q. B. D. 435, reversing the decision below; Ex parte Blain, 12 Ch. D. 522; Ex parte Young, 19 Ch. D. 124. 11. No writ of execution shall be issued without 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. 12. No writ of execution shall be issued without the party issuing it, or his solicitor, filing a præcipe for that purpose. The præcipe shall contain the title of the action, the reference to the record, the date of the judgment, 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 G. shall be used, with such variations as circumstances may require (o). (0) For these forms, see infra. 13. Every writ of execution shall be indorsed with the name and place of abode or office of business of the solicitor actually suing out out writ to be the same, and when the solicitor actually suing out the writ shall sue indorsed on 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 in person, as the case may be, Ord. XLII. 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. 14. Every writ of execution shall bear date of the day on which it Date of issue. is issued. The Forms in Appendix H. shall be used, with such variations as circumstances may require (p). (p) For these forms, see infra. For a variation in the form see Bolton v. Bolton, Form of writs. 3 Ch. D. 276; and sce also Pyman v. Burt, W. N. (1884), 100. execution. 15. In every case of execution the party entitled to execution may Expenses of levy the poundage, fees, and expenses of execution, over and above the sum recovered (q). (4) A sheriff who recovers a judgment debt by compulsion of a fi. fa. is entitled Poundage. to poundage, though he is paid out without a sale of any of the goods seized (Mortimore v. Cragg, 3 C. P. D. 216, overruling Roe v. Hammond, 2 C. P. D. 300); but there must have been an actual seizure (Bissicks v. Bath Colliery Company, 3 Ex. D. 174). See also Re Craycraft, 8 Ch. D. 596; Ex parte Lithgow, 10 Ch. D. 169; Sneary v. Abdy, 1 Ex. D. 299; Nash v. Dickenson, L. R. 2 C. P. 252. money to 16. Every writ of execution for the recovery of money shall be Writ for indorsed with a direction to the sheriff, or other officer or person to recovery of whom the writ is directed, to levy the money really due and payable state amount and sought to be recovered under the judgment or order, stating the and interest. amount, and also to levy interest thereon, if sought to be recovered, at the rate of 47. 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 47. 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 (r). (~) The writ should be delivered to the sheriff and not to the sheriff's officer (Triminger v. Keene, W. N. (1882), 106). The costs of an action in the absence of any special order bear interest from the date of the judgment and not from the date of the allocatur only (Pyman v. Burt, W. N. (1884), 100). When execution for money or costs may 17. 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 be issued. 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: (b.) The Court or a judge may, at or after the time of giving judgment or making an order, stay execution until such time as they or he shall think fit (s). (s) This rule is founded on Cons. Ord. XXIX. r. 6. In order to issue writs of fieri facias or elegit (as to which see Ord. XLIII., infra), Form of order the order must be for payment to a person, not to his account in a bank (Re Leeds for payment Banking Company, 1 Ch. 150). Under Cons. Ord. XXIX. r. 1, from which r. 1 of of money. M. G G |