Where the property has been sold and the proceeds paid into Court before the hearing, it is only necessary when judgment is pronounced for the plaintiff to obtain an order for the payment out of the sum which is awarded (see infra). of pro out of The rank which claims have against the proceeds in the Payment registry has already been pointed out (Part I. Ch. X.), but, ceeds. if claimants are in pari conditione, the one who has first obtained a decree is entitled to rank first against such proceeds (The Markland, L. R. 3 Ad. 340; 24 L. T. N. S. 596). To obtain payment of the money out of Court, r. 128 Payment A. C. R. 1859, comes into force: "All orders for the pay- Court. ment of money out of Court shall be signed by the judge." To obtain an order, application should be made in Chambers or in Court, and, a minute and the order being filed in the registry, the money will be paid out. If any person desires to prevent the payment out of the proceeds, he must enter a caveat against the payment out in the same manner as against a release from arrest: for procedure (see ante, O. v., p. 158). If there is any balance remaining in the registry after payment of the several claimants, it will be paid out according to the usual practice by means of an order of the judge. As soon as a specified sum has been ordered to be paid to a particular claimant, it becomes his property, so as to be available as assets for his creditors, subject to any lien which there may be on it, as that of a solicitor for his costs, who has the first claim on the fund, unless he fails to take proper means to assert his rights (The Olive, Swa. 423; The Albert Crosby, Lush. 101; The Jeff Davis, L. R. 2 Ad. 1).1 Where judgment is pronounced for a plaintiff in an action Judgment in personam, the methods of enforcing such judgment by in per 1 These cases partly raised thé question of the rights of holders of garnishee orders over a fund under the control of the Court, but they seem to show that if these orders were properly brought to the notice of the Court, the claim to the fund will be recognised. in action sonam. In action of possession. Altering decree. execution, &c., which are common to all divisions of the High Court, may be employed (see post, O. xlii., et seq.). Where judgment is given for the plaintiff in an action of possession, a præcipe for a release must be filed in the registry, and the same procedure used as already mentioned in regard to a release (see ante, O. v., r. 11, p. 157; and, as to adding parties so as to obtain costs, see O. xvi., r. 13, p. 177). If judgment is given for the defendant when the ship has been arrested, the same procedure is applicable as mentioned in the last paragraph, and if bail has been given the Court makes as part of the decree an order dismissing the bail. When a decree has been made the Court has power, whilst the subject matter of the action is within its jurisdiction, to alter such decree if an obvious error has been committed by it in regard to such decree or order, and it has been brought to its notice as quickly as possible (The Monarch, 1 W. Rob. 21; The Markland, L. R. 3 Ad. 340; 24 L. T. N. S. 596), but it will be rescinded with reluctance (The Glenburn, Br. & L. 62). Execution. ORDER XLII. EXECUTION. 1. A judgment for the recovery by or payment to any person of money may be enforced by any or the modes by which a judgment or decree for the payment of money of any Court whose jurisdiction is transferred by the said Act might have been enforced at the time of the passing thereof. 2. A judgment for the payment of money into Court may be enforced by writ of sequestration, or, in cases in which attachment is authorized by law, by attachment. This rule has considerably enlarged the powers of the Admiralty Division. A writ of attachment was formerly the only remedy used in the Admiralty Court. Of course, as shown by the notes to the preceding order, where the res is in the power of the Court, writs of execution are unnecessary. 4. A judgment for the recovery of any property other than land The or money may be enforced : By writ for the delivery of the property : By writ of attachment : By writ of sequestration. See O. xlvii., O. xlix. 5. 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. recovery of property. of execu tion." 6. In these rules the term "writ of execution" shall include writs Meaning of fieri facias, capias, elegit, sequestration, and attachment, and all of "writ 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. ment of 7. Where a judgment is to the effect that any party is entitled to Judgment any relief subject to or upon the fulfilment of any condition or con- in fulfiltingency, the party so entitled may, upon the fulfilment of the con- contindition or contingency, and demand made upon the party against whom gency. 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, 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. 8. Where a judgment is against partners in the name of the firm, Against execution may issue in manner following: partners. (a.) Against any property of the partners as such : (6.) Against any person who has admitted on the pleadings that he is, or 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 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 Issue of writ. Præcipe. Indorsement of writ. Date of writ. 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 perssn be tried and determined in any manner in which any issue or question in an action may be tried and determined. 9. No writ of execution shall be issued without the production to the officer by whom the same should be issued, of the judgment 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 judgment creditor to execution. A direction by the Court is equivalent to a formal judgment (Bolton v. Bolton, L. R. 3 Ch. D. 276; 35 L. T. N. S. 358; and see post, r. 20). 10. 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 firms against whose goods the execution is to be issued; and shall be signed by or on behalf of1 the solicitor of the party issuing it, or by the party issuing it if he do so in person. The forms in Appendix (E) hereto may be used, with such variations as circumstances may require. 11. Every writ of execution shall be indorsed with the name and place of abode or office of business of the 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 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. 12. Every writ of execution shall bear date of the day on which it is issued. The forms in Appendix (F.) hereto may be used, with such variations as circumstances may require. Interest on costs runs from the date of the registrar's allocatur of taxation (see Schroder v. Clough, 46 L. J. C. P. 1 These words were added by r. 17. Rules of June, 1876. 365; and The Jones Brothers, 37 L. T. N. S. 164; 3 Asp. M. C. N. S. 478). 13. In every case of execution the party entitled to execution may levy the poundage, fees, and expenses of execution, over and above the sum recovered. to direction. 14. Every writ of execution for the recovery of money shall be Indorseindorsed with a direction to the sheriff or other officer or person ment of whom the writ is directed to levy the money really due and payable and sought to be recovered under the judgment, stating the amount, and also to levy interest thereon, if sought to be recovered, at the rate of £4 per cent. per annum from the time when the judgment was entered up, provided that in cases where there is an agreement between the parties that more than £4 per cent. interest shall be secured by the judgment, then the indorsement may be accordingly to levy the amount of interest so agreed. The sheriff is the person to whom in an action in the Admiralty Division the writ is directed. writs of execution. 15. Every person to whom any sum of money or any costs shall be Time for payable under a judgment, shall immediately after the time when the taking out judgment was duly entered, 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 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 judge at the time of giving judgment, or the Court or a judge afterwards, may give leave to issue execution before, or may stay execution until any time after, the expiration of the periods herein before prescribed. As to stay of execution on appeal, see post, O. lviii., r. 16. In one case a stay of execution was granted and the money ordered to be brought into Court and invested in Exchequer Bonds (The Cybele, 37 L. T. N. S. 165; 3 Asp. M. C. N. S. 478 (481). 16. A writ of execution if unexecuted shall remain in force for Time. one year only from its issue, unless renewed in the manner hereinafter provided; but such writ may, at any time before its expiration, |