The return need not be filed, but notice of the application should be given to the tenants: Goldsmith v. G., 5 Ha. 123.

For such orders, see Rowley v. Ridley, L. C., 26 Jan. 1784, B. 153; 3 Swa. 306; 4 Ves. 738; Hammond v. Maber, V.-C., 25 July, 1821, A. 1740; Duncombe v. Lewis, V.-C. K., 2 Nov. 1853, A. 29; in which cases the order was on notice; and in Duncombe v. Lewis limited a time; and under O. XLI. 5, the order to attorn tenant should limit a time, and may then be enforced by attachment and sequestration, or, on the return of the attachment non est inventus, at the option of the party prosecuting, by sequestration : 0. XLIII. 6; or by an order for the Serjeant-at-Arms, and subsequent process: Gen. Ord. 7 Jan. 1870, 6.

For order for sequestrators to be at liberty to let and set the real estate, see Rees v. Williams, V.-C. K. B., 27 April, 1848, B. 842.

For orders for tenants to attorn to receiver, see inf. Chap. XXXII., "RECEIVERS."

NOTES.

POWERS AND DUTIES OF SEQUESTRATORS.

Sequestrators are authorized by the writ to enter into possession of lands, &c. in the possession of the contemnor, and to receive the rents and profits of such of his estates as are in the occupation of tenants, who should be served with notice in writing to attorn and pay their arrears and growing rents to them; and upon refusal to attorn, &c., the sequestrators may upon motion obtain an order for them to attorn, &c.: see Form 3, sup.; Rowley v. Ridley, 3 Swa. 306; S. C., 4 Ves. 738-740.

Sequestrators will be ordered to account for whatever comes to their hands by virtue of their office, and are bound from time to time to make returns to the Court: Howell v. Ld. Coningsby, 1 Fowl. Ex. Pr. 161; Dan. Ch. Pr. 920 ; Form 2, sup.

The sequestrator of a benefice was disallowed expenditure for repairs in excess of the sum estimated by the surveyor's report, under the Ecclesiastical Dilapidations Act, 1871 (34 & 35 V. c. 43): Kimber v. Paravicini, 15 Q. B. D.

222.

Under a sequestration for non-performance of an order for payment of money, the proceeds of the goods seized will be applied in satisfaction of the Plt's demand: Davis v. D., 2 Atk. 24.

The sequestrators ought not so to apply the proceeds on their own authority, but should pay them into Court upon leave obtained on motion: Dan. Ch. Pr. 920; or now, unless in special cases, by summons in Chambers.

Sequestrators under an interlocutory order for the non-performance of a duty have the same power as under a final judgment: Cadell v. Smith, 3 Swa. 308, n.; Dunkley v. Scribnor, 2 Mad. 443.

Sequestrators abusing their powers may be committed: Ld. Pelham v. Ld. Harley, 3 Swa. 291, n.; and see Sykes v. Dyson, W. N. (70) 81.

And obstructing sequestrators is a contempt of Court: Angel v. Smith, 9 Ves. 336; Ld. Pelham v. D. of Newcastle, 3 Swa. 289, n.; and see Franklin v. Colhoun, 3 Swa. 276; Dan. 921.

The title of sequestrators will prevail over that of mortgagees with full notice of the proceedings: Ward v. Booth, 14 Eq. 195.

As to the priority of a sequestration issued by a trustee in bankruptcy, see Bankruptcy Act, 1883, s. 52 (corresponding with sect. 88 of the Act of 1869); and Exp. Chicks, Re Meredith, 11 Ch. Div. 731.

When necessary, a sale may, on the application of the sequestrators, be ordered:

-of rents in kind, or the natural produce of a farm: Shaw v. Wright, 3 Ves. 22.

—of household goods and furniture: Mitchell v. Draper, 9 Ves. 208.

of a Deft's reversionary interest in a fund in Court: Cowper v. Taylor, 16 Sim. 314.

But sequestrators cannot sell the estates themselves, as distinguished from the profits, whether freehold, copyhold, or leasehold, as neither the estate nor the term is vested in them by virtue of the writ: see Shaw v. Wright, 3 Ves. 22.

The application for a sale should be made by summons in Chambers (see

Turner v. Clifford, W. N. (70) 199); or on motion (see Wharam v. Broughton, 1 Vez. 184), upon notice (Mitchell v. Draper, 9 Ves. 208); but where service of the notice could not be effected, an order for sale was granted upon an ex parte motion: Re Rush, 19 W. R. 417.

The execution by the sequestrators of the writ by taking possession of such parts of the lands of a Deft, who had failed to comply with an order duly registered for payment of money into Court, as were in his possession, and by procuring an attornment from the tenants of the other parts, does not constitute the Plt, by whom the writ has been issued, a creditor to whom the lands of the debtor have been actually delivered in execution, so as to entitle him to a sale of the land under 27 & 28 V. c. 112: Johnson v. Burgess, 15 Eq. 398; not following Re Rush, 10 Eq. 442; and as to the effect of the Judgment Law Acts, 1838-1864, v. inf. Chap. XLVII., MORTGAGES." And the mere issuing of a sequestration against a Deft, and service of it on his debtor or trustee, did not make the Plt a secured creditor within the Bankruptcy Act, 1869: Exp. Nelson, Re Hoare, 14 Ch. Div. 41.

On a sequestration under a judgment, leave will be given to the sequestrators to let: Harvey v. H., 4 Rep. in Ch. 49; and sequestrators in possession and in receipt of the rents and profits were allowed to let and set the estate, as there should be occasion: Rees v. Williams, V.-C. K. B., 27 April, 1848, B. 842; S. C., sup. p. 393; Neale v. Bealing, L. C., March, 1744, B. 214; 3 Swa. 304, n.; and see Dunkley v. Scribnor, 2 Mad. 443.

(III.) EXAMINATION PRO INTERESSE SUO.

1. Inquiry as to Claimant's Interest.

UPON motion &c., by counsel for S., of &c. [claimant], and upon hearing counsel for the Plts, and for the Deft; and upon reading &c. [enter any evidence]; This Court doth order that an inquiry be made whether the said S. hath any and what interest in the lands and hereditaments specified in the schedules to the return to the commission of sequestration issued in this action, and other the real estates comprised in the indentures dated &c. [describe the property] sequestered by &c., the sequestrators acting under the said commission of sequestration, or any and what part thereof; And it is ordered that this motion do stand over until after the chief clerk shall have made his certificate of the result of the said inquiry (but this order is to be without prejudice to any question as to the rents of the said lands &c.). -Liberty to apply.-Alton v. Harrison, V.-C. S., 22 June, 1869, A. 1740.

For like order, see Jacob v. De Morgan, M. R., 1 Feb. 1878, A. 222.

For order under former practice for claimant to come in and be examined, see Hamlyn v. Ley, L. C., 12 Feb. 1743, A. 194; 1 Dick. 94; 3 Swa. 301, n. ; for order of reference to see if title made out, S. C., M. R., 9 June, 1743, A. 474; for final order, with declaration in favour of claimant, Cooper v. Thornton, L. C., 22 July, 1738, A. 629; 1 Dick. 73.

2. The Like-On Motion that the Sequestrators withdraw, and for Damages, and Cross Motion that they sell.

UPON motion &c., by counsel for S. of &c., and H. of &c. (claimants), that the sequestrators might be discharged and ordered to withdraw from possession, and for an inquiry as to damage, and that the Plts might be ordered to pay the amount of such damage, or for an inquiry as to the claimant's interest; and upon hearing counsel for the Plts

and the Deft H.; and upon motion &c., by counsel for the Plts &c. that the said sequestrators might sell the several goods, chattels &c., and articles of personalty in and about the house &c., situate &c., sequestered by the said sequestrators; and upon hearing counsel for the Deft H.; and upon reading &c., This Court doth order that an inquiry be made whether the said S. and H. (claimants) have any and what interest in the several goods, chattels &c., and articles of personalty in and about the house &c., situate &c., sequestered by the said sequestrators, or any and what part thereof; and also in the lands and hereditaments comprised in the indenture dated &c.-Rest of motion to stand adjourned until after the result of the inquiry.-Alton v. Harrison, V.-C. S., 28 Jan. 1869, A. 262.

3. Sequestrators to withdraw upon Undertaking by Claimant as to Damages, to keep an Account, and to allow Sequestrators to take Inventory-Inquiry.

UPON motion &c., that sequestrators withdraw, and for inquiry as to damage and claimant's interest; And the said H. [claimant] by his counsel at the bar undertaking to permit the sequestrators acting under the commission of sequestration issued in these actions on the day of to take an inventory of the stock in trade, chattels, and effects in and about the warehouse &c., situate &c., sequestered by the said sequestrators, and also not to deal with or dispose of any of the said stock in trade &c., except in the ordinary course of business, and to keep an account of all moneys he shall receive and pay in respect of the said stock in trade &c., and of any disposition thereof in the ordinary course of business, and also submitting to be bound by any order this Court may make as to damages, or with respect to the proceeds of any of the stock in trade &c. dealt with in the ordinary course of business, and to restore possession of the said warehouse &c., if this Court should so order, Let such inventory be taken accordingly; And Let the said sequestrators withdraw from possession of the said stock in trade &c., and also from all interference with the said premises, goods, chattels, and effects, until the inquiry hereinafter directed has been answered, or until further order; And Let an inquiry be made whether the applicant is in any and what manner interested in the said premises, stock in trade, &c., or any and what part or parts thereof.-Rest of motion to stand over until after the result of the inquiry.-Alton v. Harrison, V.-C. S., 11 Jan. 1869, A. 112.

The inquiry in this case was directed before the return, on a sufficient caso being shown by the affidavits in support of the application: see Dan. 922.

4. Declaration that Claimants have an Interest against which Sequestrators cannot hold-Direction to withdraw-Costs.

UPON the application of &c. [claiming as mortgagees] to vary the chief clerk's certificate adjourned into Court, and upon the adjourned

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motion &c.; Let the said certificate, so far as it is thereby certified that the applicants have not any interest in the several goods, chattels &c., and articles of personalty in and about the house &c., situate &c., sequestered by the said sequestrators, nor in the lands and hereditaments comprised in the indenture dated &c., be varied, And Declare that the said (claimants) have under and by virtue of the said indenture an interest in the said several goods &c., and articles of personalty, lands, and hereditaments, against which the said sequestrators cannot hold; And Let the said sequestrators withdraw from the possession of the said several goods &c., and articles of personalty, and from the possession and receipt of the rents and profits of all such parts of such lands and hereditaments of which they are in possession or in receipt of the rents and profits, and they are not hereafter to receive any further rents.-Costs of claimants of this and their former applications, and of the reference, to be added to the amount due to them under their security, such costs to be taxed &c.—Alton v. Harrison, V.-C. S., 24 June, 1869, A. 1741; W. N. (69) 81.

NOTES.

When any person claims to be interested in or entitled to property, whether personal or real, which has been sequestered, either he, or the party issuing the writ, may apply to the Court to direct an inquiry as to his interest therein. The application is now usually made by summons, but may be on motion.

For form of notice of motion, or summons, see Dan. Ch. Forms, p. 730 (4th ed.).

The examination and inquiry as to the title of the adverse claimant is before the Judge at Chambers.

In Kaye v. Cunningham, 5 Mad. 406, it was held that an order for the examination of a party pro interesse suo could only be made upon his application or by his consent; but the current of cases is not in favour of this decision see Hamblyn v. Ley, 3 Swa. 301, n.; Bird v. Littlehales, 3 Swa. 300, n.; Mitchell v. Draper, 2 Mad. Ch. 305.

The order cannot usually be made until the return of the sequestration: for until then "it cannot appear to the Court what is sequestered" : L. Pelham v. Ds. Newcastle, 3 Swa. 290, n.; but see Alton v. Harrison, Form 3, sup.

The person obtaining the order for an inquiry may be required to make an affidavit of the documents in his possession: Alton v. Harrison, W. N. (69) 81.

It was said that a mortgagee must always come in and be examined: Anon., 6 Ves. 288; but where the right is clear, the Court will give relief, without compelling the party to be examined: Dixon v. Smith, 1 Swa. 457; and see A. G. v. Mayor of Coventry, 1 P. W. 308.

And a person cannot claim, though by an adverse title, in any other way than by coming to be examined pro interesse suo: Angel v. Smith, 9 Ves. 336; ̈ ̈ though leave to bring an ejectment has sometimes been given: see Brooks v. Greathed, 1 Jac. & W. 177; Angel v. Smith, 9 Ves. p. 340; A. G. v. Mayor of Coventry, 1 P. Wms. 308; or the Court, by directing an issue, has put the question of right in course of trial: Empringham v. Short, 3 Ha. 461.

In Hunt v. Priest, 2 Dick. 540, the Court refused to interfere on petition; but in Walker v. Bell, 2 Mad. 21, on the petition of mortgagees, directed an inquiry into their title; and on the report a further order was made.

The mode of proceeding was the same where the property was in the possession of a receiver: Anon., 6 Ves. 287; Angel v. Smith; Brooks v. Greathed, sup.; Oswald v. Landes, V.-C., 25 Mar. 1840, B. 546; and in Hammond v. Maber, L. C., 4 Aug. 1821, A. 1905, on motion to commit a

person for ousting the receiver, he was ordered to deliver up possession and pay costs, and to go in and be examined pro interesse suo; and see inf. Chap. XXXII., "RECEIVERS."

If it shall appear that the party examined pro interesse suo has a title paramount to the sequestration, it will be discharged as against him, with or without costs, according to the circumstances of the case: see A. G. v. Mayor of Coventry, 1 P. Wms. 307, n. (citing Gilb. For. Rom. 80; Wharam v. Broughton, 1 Ves. 180); Cooper v. Thornton, 1 Dick. 72; and in Copeland v. Mape, 2 Ba. & B. 67, the goods taken having been ascertained to be the property of the person examined pro interesse suo, were directed to be specifically restored, with an inquiry as to damages.

Rents received by sequestrators were ordered to be paid to mortgagees who had been prevented by the sequestrators from taking possession, their title being ascertained under an examination pro interesse suo: Tatham v. Parker, 1 S. & G. 506.

The inquiry may be applied for by the guardian of an infant, or by a person in forma pauperis : Dan. 39; Pelham v. Ds. Newcastle, 3 Sw. 290, n.; James v. Dore, 2 Dick. 788.

For the former and present practice, see Dan. 921.

(IV.) DISCHARGE OF SEQUESTRATION.

Order to Discharge Attachment and Dissolve Sequestration. UPON the application of &c.; and all parties, by their solrs, consenting to the following order, discharge attachment and dissolve sequestration issued against the Deft S. on &c., for not &c.; And Let the costs of the Plt and of the sequestrators of and incidental to the attachment, and the costs, charges, and expenses of and incidental to the sequestration, including their costs of the application by the mortgagees for the order dated &c. (for inquiry pro interesse suo), and all usual and proper allowances to the sequestrators in respect of their office, and of this application, and of and incidental thereto, be taxed (as between solr and client), in case the parties differ, and be respectively retained and paid by the sequestrators as hereinafter mentioned; And Let D. &c., the said sequestrators, withdraw from possession of the said estate of the Deft S. situate at &c., and from receipt of the rents and profits thereof within &c. from the service of this order, and within the time aforesaid give notice of their withdrawal (to the tenants) and be paid their costs thereof (to be taxed as between solr and client), and included in the costs hereinbefore directed to be taxed and retained. Sequestrators to leave accounts in Chambers, and to retain their costs, and costs, charges, and expenses when taxed or agreed to, out of the moneys in their hands; and the mortgagees consenting and abandoning the inquiry as to their interest directed by the said order, sequestrators to pay what shall be found due from them, on the balance of their account, to Deft S., within &c.; and thereupon the sequestrators to be released and discharged from all liability in respect of their office.-See Rawlinson v. Stringer, M. R., for V.-C. S., at Chambers, 11 Sept. 1868, B. 2507.

For the order in this case for an inquiry pro interesse suo, S. C., 17 July, 1868, B. 2157.