Orders

equivalent to judg

ment.

Relief

as to

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 attorney, and bearing the like seal of the Court; and a writ of execution so renewed shall have effect and be entitled to priority according to the time of the original delivery thereof.

17. 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 no renewed.

18. As between the original parties to a judgment, execution may issue at any time within six years from the recovery of the judgment.

19. Where six years have elapsed since the judgment, or any change has taken place by death or otherwise in the parties entitled or liable to execution, 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 seem just.

20. Every order of the Court or a judge, whether in an action, cause, or matter, may be enforced in the same manner as a judgment to the same effect.

21. In cases other than those mentioned in rule 18, any person not being a party in an action who obtains any order, or in whose favour any order is made, shall be entitled to enforce obedience to such order by the same process as if he were a party to the action; and any person not being a party in an action against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to such judgment or order as if he were a party to the action.

22. No proceeding by audita querela shall hereafter be used; but execution, 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.

23. Nothing in any of the rules of this order shall take away or Saving rules. 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.

24. Nothing in this order shall affect the order in which writs of execution may be issued.

ings under

If a person against whom judgment has gone has the Proceedmeans to pay and will not do so, the Debtors Act, 1869, Debtors 32 & 33 Vict. c. 62, is applicable.

The following rules were, on March, 1874, made for the purposes of carrying out the provisions of this Act:

I. All applications to commit to prison under the Debtors Act, 1869, shall, in the first instance, be made to the judge in Court by notice of motion, which shall specify the date and other particulars of the order in respect of the nonobedience to which the application is made, and shall specify the amount due, and be indorsed with the name and address of the solicitor or party suing out the notice of motion; and, when the solicitor actually suing out such notice of motion sues out the same as agent for a solicitor in the country, the name and address of such solicitor in the country shall be indorsed on the notice of motion.

II. The service of the notice of motion shall, whenever it may be practicable, be personal on the debtor; but, if it appears to the judge that reasonable efforts have been made to effect personal service, and either that the notice of motion has come to the knowledge of the debtor, or that he wilfully evades service, an order may be made as if personal service had been effected, upon such terms as to the judge may seem fit.

III. Proof of the means of the debtor shall, whenever practicable, be given by affidavit; but, if it appear to the judge, either before or at the hearing, that a vivâ voce examination either of the debtor or of any other person or the production of any document is expedient or necessary, an order may be made commanding the attendance of any

Act, 1869.

such person before the judge, at a time and place to be therein mentioned, for the purpose of being examined on oath touching the matter in question, and an order may be made commanding the production of such documents. The disobedience to any such order shall be deemed a contempt of Court, and be punishable accordingly.

IV. The order of committal may be in the form or to the effect stated in Schedule A. annexed to these rules, and shall, before delivery to the marshal, be indorsed with the particulars required by r. 1.

V. Upon payment of the sum or sums mentioned in the order (including the fees due to the marshal), the debtor shall be entitled to a certificate in the form of Schedule B. annexed to these rules, signed by the solicitor or party actually suing out the order, and attested before an attorney or justice of the peace.

VI. The marshal or his subordinate shall, within two days of the arrest, indorse on the order the true date of such arrest.

term of

Form of Order of Committal.

Upon hearing, &c. [name and surname of debtor and party claiming], I do order that the said A. B. be, for default of payment of the debt hereinafter mentioned, committed to [name of prison] prison for the weeks from the date of his arrest, including the day being the amount of [state particulars of debt or liability], and which the said A. B. was, on the ordered by the Admiralty Division

of such date, or until he shall pay £

day of

of the High Court of Justice to pay to the said

together with £

for costs of and attending this order; and I

do order that the marshal or his substitute do take the said A. B. for the purpose aforesaid.

of the Admiralty Division of the High Court of Justice, at the instance of C. D. for non-payment of a debt of £

has satisfied

the said debt, together with the costs mentioned in the said order. Dated

Witness

(Signed)

ORDER XLIII.

WRITS OF FIERI FACIAS AND ELEGIT.

1. Writs of fieri facias and of elegit shall have the same force and Writs of effect as the like writs have heretofore had, and shall be executed fi. fa., &c. in the same manner in which the like writs have heretofore been

executed.

2. Writs of venditioni exponas, distringas nuper vice comitem, fieri facias de bonis ecclesiasticis, sequestrari facias de bonis ecclesiasticis, and all other writs in aid of a writ of fieri facias or of elegit, may be issued and executed in the same eases and in the same manner as heretofore.

ORDER XLIV.

ATTACHMENT.

1. A writ of attachment shall have the same effect as a writ of Attachattachment issued out of the Court of Chancery has heretofore ment. had.

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.

Costs of moving for an attachment are in the discretion of the Court under O. lv. (Abud v. Riches, L. R. 2 Ch. D. 528; 45 L. J. Ch. 649).

R

Attachment of debts.

ORDER XLV.

ATTACHMENT OF DEBTS.

1. Where a judgment is for the recovery by or payment to any person of money, the party entitled to enforce it may apply to the Court or a judge for an order that the judgment debtor be orally examined as to whether any and what debts are owing to him, before an officer of the Court, or such other person as the Court or judge shall appoint; and the Court or judge may make an order for the examination of such judgment debtor, and for the production of any books or documents.

2. The Court or a judge may, upon the ex parte application of such judgment creditor, either before or after such oral examination, and upon affidavit by himself or his solicitor stating that judgment has been recovered, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, order that all debts owing or accruing from such third person (hereinafter called the garnishee) to the judgment debtor shall be attached to answer the judgment debt; 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 the judgment creditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt.

This procedure has long been in use in the Common Law Divisions for decisions thereon, see Day's Common Law Procedure Acts, 4th ed., p. 314, et seq.

3. Service of an order that debts due or accruing to the judgment debtor shall be attached, or notice thereof to the garnishee, in such manner as the Court or judge shall direct, shall bind such debts in his hands.

4. If the garnishee does not forthwith pay into Court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, and does not dispute the debt due or claimed to be due from him to the judgment debtor, or if he does not appear upon summons, then the Court or judge may order execution to issue, and it may issue accordingly, without any previous writ or process, to