in good faith under a sale by the sheriff shall, in all cases, acquire a good title to them against the trustee in bankruptcy.

As to the duty of a sheriff's officer who receives notice by telegram of an injunction granted by the Court of Bankruptcy to restrain a sale, see Exp. Langley, Re Bishop, 13 Ch. D. 110, C. A.

Rejection of proof for debt by judgment creditor in the debtor's bankruptcy remains valid though the bankruptcy is annulled: Brandon v. McHenry, (1891) 1 Q. B. 538, C'. A.

RECOVERY OF LAND BY WRIT OF POSSESSION.

By O. XLVII, 1, a judgment or order that a party recover possession of any land may be enforced by writ of possession in manner heretofore in use in actions of ejectment in the Superior Courts of Common Law.

By r. 2, where by any judgment or order any person therein named is directed to deliver possession of any lands to some other person, the person prosecuting such judgment or order may without order sue out a writ of possession on filing an affidavit of due service of the judgment or order, and that it has not been obeyed.

The writ of possession was by this rule introduced in substitution for the former writ of assistance: Hall v. H., 47 L. J. Ch. 680; following Re Holden, M. R., 7 May, 1878. The writ of assistance, however (which is more extensive in terms than the writ of possession, and which was not issued without an order for that purpose: Cons. Ord. 29, r. 5, and see O. LXXII, 2), may still be required, and has been issued for the purpose of recovering possession of and preserving chattels which had been ordered to be delivered to a receiver: Wyman v. Knight, 39 Ch. D. 165; sup. Form 6, p. 431.

An order for the issue of the writ of possession is not now necessary in any case; but where there is a judgment for recovery of possession under O. XLVII, 1 (which affects parties only), the writ will be sealed, according to the practice at law, on production of the judgment only. And in cases under r. 2 (which includes persons as well as parties), the writ will be sealed on production of the affidavit mentioned in that rule.

For the form of judgment for the possession of land upon Deft's default, see p. 170, Forms 13 and 14; and R. S. C. App. F., Form 3. And for the form of the writ, see Ib., App. H., Form 7a.

A judgment for foreclosure absolute is not a judgment for recovery of possession of land enforceable by writ of possession: Wood v. Wheater, 22 Ch. D. 281; secus, if it contain an order for delivery of possession; and see O. XVIII, 2. An order for delivery of possession by the mortgagor should contain a description of the property, so that the same may be indicated in the writ of possession: Thynne v. Sarl, (1891) 1 Ch. 79.

Where a lessee recovered judgment for possession against sub-lessee, and the lessee's estate expired after action and before trial, writ of possession was allowed to issue, it not being shown that the issuing of it would be futile or unjust: Knight v. Clarke, 15 Q. B. D. 294, C. A.; Gibbons v. Buckland, 1 H. & C. 736.

Under the old practice, where the Deft had refused to allow the sequestrators to enter into possession, an order was granted for an injunction enjoining the Deft to cause possession of a house, and premises belonging to it, to be delivered to them: see Bird v. Littlehales, L. C., 18 Feb. 1743, A. 177; S. C., 3 Sw. 300, n. And for the further order for the writ of assistance to issue, see S. C., 19 March, 1743, A. 235.

And orders for the writ of assistance to put the sequestrators into possession were granted in Barkley v. B., 7 June, 1849, A. 1720; Pelham v. Duchess of Newcastle, 3 Sw. 289, n.

The same remedy might be obtained by a receiver: Cazet de la Borde v. Othon, 23 W. R. 110; Sharp v. Carter, 3 P. Wms. 379, n.; A. G. v. De Tastet, V.-C. K., 31 Jan. 1855; or by a purchaser who was kept out of possession of property sold by the Court: see Toynbee v. Ducknell, V.-C. W., 19 July, 1856, B. 1437; Wilson v. Angus, V.-C. S., 28 June, 1858, B. 1089; and his costs of proceedings for the purpose of obtaining possession were payable out of the purchase-money in Court: Thomas v. Buxton, 8 Eq. 120; et v. sup. Chap. XIX., "SALES BY THE COURT."

Where, after a writ of possession executed, the Deft forcibly re-took possession, the Court made an order renewing the writ: Stackpoole v. Walsh, 7 L. R. Ir. 444.

As to form of order, in action where judgment was given for recovery of land against the Deft who was not in possession, and possession was given to the Plt under a writ of possession, setting aside the judgment on application of the person in possession who did not derive title from the Deft, see Minet v. Johnson, 63 L. T. 507.

Issue of execution for possession is not necessarily a waiver of right to costs: Harrold v. Daly, 24 L. R. Ir. 412.

And as to the writ of possession, see Edw. Exton. 93 et seq.; and for forms, see D. C. F. 468–471.

ENFORCING CONVEYANCE OF LAND.

A direction in a judgment or order for the execution of a deed or conveyance may be enforced, as a judgment to do any act, by writ of attachment or by committal: see O. XLII, 7.

The provisions of 11 Geo. IV. & 1 Will. IV. c. 36, s. 15, for enforcing a conveyance by compulsory process, were superseded by the Trustee Acts, 1850 and 1852 (now repealed and replaced by the Trustee Act, 1893), enabling the Court to vest lands and other property in the cases therein mentioned; and by the Jud. Act, 1884 (47 & 48 V. c. 61), s. 14, which provides that where any person neglects or refuses to comply with a judgment or order directing him to execute any conveyance, contract, or other document, or to indorse any negotiable instrument, the Court may, on such terms and conditions (if any) as may be just, order that such conveyance, &c. be executed, or such negotiable instrument indorsed by such person as the Court may nominate for that purpose; and in such case the conveyance, &c. so executed or indorsed shall operate and be for all purposes available as if it had been executed or indorsed by the person originally directed to execute or indorse it. And for instance of the appointment under this section of the chief clerk (Master) to execute, see Re Edwards, Owen v. Edwards, 33 W. R. 578; and see Form 2, sup. 429.

The jurisdiction might be exercised by the P. D.: see Howarth v. H., 11 P. D. 95, where an order for execution by the registrar was made on a simple motion for attachment for non-compliance, the person in default having by himself or his solr received notice that the application to the Court would be made in the alternative.

In Re Cathcart, (1893) 1 Ch. 466, Form 5, sup. p. 430, the official solr was directed to transfer consols standing in the name of a lunatic, and see Re Lumley, W. N. (93) 13, Form 4, sup. p. 430; Hood-Barrs v. Cathcart, 39 Sol. J. 639, as to directing Bank of England to transfer.

RECOVERY OF PROPERTY, OTHER THAN LAND OR MONEY, BY WRIT OF

DELIVERY.

By O. XLVIII, 2, a writ of delivery of property other than land or money (which is mentioned in O. XLII, 6, as one of the modes in which a judgment for that purpose may be enforced) may be issued and enforced in the manner heretofore in use in actions of detinue in the Superior Courts of Common Law.

The writ (forms of which are given in R. S. C. App. H., Nos. 10, 11, and D. C. F. 474) is either (1) for the return of the chattels, and a distress of all the lands and chattels of the Deft until they are returned, without giving him the option of retaining them, and paying their assessed value, or (2) for the return of the chattels, or if they cannot be found, the levying of their assessed value. In the latter case, the writ issues without order; in the former, an order is required. See further as to the writ, Edw. Exton. 195 et seq.

Where it was necessary to give a receiver actual delivery of specific chattels, a writ of assistance was ordered to issue: Wyman v. Knight, 39 Ch. D. 165.

SECTION III.-ATTACHMENT OR COMMITTAL.

1. Order for Attachment for Default other than for non-payment of Money-O. XLII, 6, 7; 0. XLIV, 2.

WHEREAS by the judgment [or order], dated &c., It was ordered [Recite direction for the act to be done], Now upon motion &c., by counsel for (the Plt) A., who alleged that (the Deft) B. has not &c. [state default], as by the affidavit of &c. filed &c. appears, and [upon hearing counsel for (the Deft) B., and] upon reading the said judg ment [or order], the said affidavit [enter evidence of service of the judg ment &c., and if the person in contempt does not appear, and an affidavit of &c., filed &c., of service of notice of this motion upon the said (Deft) B.]; This Court doth order that the said (Plt) A. be at liberty to issue a writ or writs of attachment against the said (Deft) B. for his contempt in not &c. [as above]; And it is ordered that the said (Deft) B. do pay to the said (Plt) A. his costs of this application and of the said attachment, to be taxed by the taxing master.

For form of application for leave to issue writ of attachment, see D. C. F. 433.

2. Attachment in Default of payment by Instalments. WHEREAS by an order dated &c., It was ordered that the Deft should within &c., lodge in Court as directed in the schedule thereto £97:48. being &c., Now upon motion &c., by counsel for the Plt, and upon hearing counsel for the Deft, and it appearing to the satisfaction of the Court that the Deft has made default in payment of the said £as directed by the said order, and that such default is a default made by a trustee or person acting in a fiduciary capacity, and ordered to pay a sum in his possession or under his control within the meaning of the Debtors Act, 1869, Let the Plt be at liberty to issue a writ or writs of attachment against the Deft for his contempt in not lodging the said £-in Court pursuant to the said order; And counsel for the Deft alleging that the Deft is unable to pay the said £- except by instalments, and offering to lodge the same in Court by monthly instalments as mentioned in the schedule hereto, Let the Deft be at liberty to make the lodgment in Court of the said £— as directed in the schedule hereto, the Plt undertaking not to issue such writ of attachment unless the Deft shall make default in payment into Court of the said monthly instalments of the said £- or any of them; And let the Deft J. C. lodge in Court, as directed in the said schedule, the Plt's costs of this application, and of such attachment, if any, to be taxed.

[Insert in Lodgment Schedule].-Re Lawes.

Re Lawes, Cole v. C., North, J., 28 Oct. 1887, B. 2477.

140

3. Order for Attachment for Default in not transferring Stock into Court.

WHEREAS by the order dated &c., It was ordered that, without prejudice to any question, the Defts J. H. and C. H. should within seven

-

days after service of the said order, transfer into Court, as directed in the schedule thereto, the sum of £- (New Consols); Now upon motion &c. by counsel for the Plts, and upon hearing counsel for the Deft C. H., and upon reading the said order, an affidavit of &c., filed &c., of service of the said order on the said J. H. and C. H., on the day of, the order dated &c., an affidavit of &c., filed &c., of service of notice of this motion on the Deft J. H., the Chancery paymaster's certificate, dated &c., of the non-transfer of the said Consols into Court [enter any other evidence], This Court doth order, that the Plt be at liberty to issue a writ or writs of attachment against the said Defts J. H. and C. H. for their contempt in not having transferred the said sum of £-, New Consols, into Court pursuant to the said order [if so, but such writ or writs of attachment is or are not to be issued until the day of]; And it is ordered that the said Defts J. H. and C. H. do pay to the Plt M. S. the cost of the Plts of this motion, such costs to be taxed &c.-See Street v. Hope, Lopes, J., for V.-C. M., 27 Sept. 1877, B. 1712.

For an order for attachment against the Defts for not leaving at the Chambers of the Judge an abstract of their title to the lands in question, pursuant to an order, see Peacock v. Morgan, M. R. 16 March, 1877, B.

320.

For an order for attachment against solrs for non-compliance with an order to procure certain deeds to be registered and stamped at their own expense, and to rectify any omissions, and for delivery of the deeds duly rectified and stamped to their clients, see Re Scard, M. R., 21 Aug. 1878, B. 1734.

4. The like-for not obeying an Order to make Affidavit as to

Documents-0. xxxi, 21.

WHEREAS by an order dated &c., it was ordered that [Recite order to make affidavit as to documents]; Now upon motion this day made unto this Court by counsel for the Plt, who alleged that the Deft B. has been guilty of a contempt of this Court in not complying with the said order, as by an affidavit of &c., filed &c., appears, and [upon hearing counsel for the said Deft], and upon reading the said order and affidavit [or, if the Deft does not appear, and an affidavit of &c., filed &c., of service of notice of this motion on the said Deft]; This Court doth order that the Plt be at liberty to issue a writ of attachment against the said Deft B., for his contempt in not complying with the said order, dated &c.

For order for attachment for default in leaving at Chambers accounts pursuant to a four-day order, see Whitaker v. Thurston, M. R. 21 July, 1876, B. 1347; and see Caulcutt v. C., 30 March, 1876, A. 636.

It has been held that the provision in O. XXXI, 21, as to attachment does not apply to orders for delivery of the names of a firm under 0. XVI, 14 (see now 0. XLVIIIA, 1, June, 1891); or for an account claimed, to be verified by affidavit (O. xv, 1): Pike v. Keene, 24 W. R. 322, 35 L. T. 341; but in the Ch. D. it is the usual practice to direct an attachment to be issued in default of bringing in accounts, or making a sufficient affidavit of documents. For forms, see D. C. F. 595, 596.

5. The like for non-payment of Money by a Trustee under the Debtors Act (32 & 33 V. c. 62), 8. 4.

--

WHEREAS by the judgment [or order], dated &c., It was ordered that (the Deft) B. should, within days after service thereof, pay to (the Plt) A. the sum of £-as therein mentioned [or lodge in Court to the credit of &c., as directed by the schedule thereto, the sum of £— by the Master's certificate, dated &c., certified to be due from him on the account of &c. by the said judgment [or order] directed]; Now upon motion this day made unto this Court by counsel for the (Plt) A., and upon reading the said judgment [or order], an affidavit &c., filed &c., of service of the said judgment [or order] upon the (Deft) B., an affidavit of the (Plt) A., filed &c., of non-payment of the said sum of £-[or if so, the paymaster's certificate, whereby it appears that the (Deft) B. has made default in payment of the said sum of £- into Court pursuant to the said judgment [or order], an affidavit of &c., filed &c., of service of notice of this motion on the (Deft) B.]; And it appearing to the satisfaction of the Court that the (Deft) B. has made default in payment of the said sum of £- as directed by the said judgment [or order], and that such default is a default made by a trustee or person acting in a fiduciary capacity, and ordered to pay a sum in his possession, or under his control, within the meaning of the Debtors Act, 1869, This Court doth order that the (Plt) A. be at liberty to issue a writ or writs of attachment against the (Deft) B. for his contempt in not having paid the said sum of £- to the (Plt) A. [or into Court] as aforesaid, pursuant to the said judgment [or order]. [If so, And it is ordered that the (Deft) B. do pay to the (Plt) A. his costs of this application and of the said attachment, such costs to be taxed &c.]-See Young v. Dallimore, V.-C. S., 28 Feb. 1870, B. 549; Moorhouse v. M., M. R. 12 July, 1878, B. 1394; European Assurance Co. v. Lee, M. R. 13 Dec. 1878, A. 2217.

For order for attachment to issue against a solr for non-payment of a sum certified to be due from him on the taxation of his bill of fees and disbursements, see Re Peters, Form 2, Chap. XVII., Sect. XI., p. 315, "Costs"; and see Re Rush, 9 Eq. 147.

NOTES.

WRIT OF ATTACHMENT-COMMITTAL.

By O. XLII, 7, 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."

By O. XLIV, 1, a writ of attachment is to have the same effect as a writ of attachment issued out of the Ch. D. theretofore had; and by r. 2, no such writ is to 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.

An important change has been introduced by r. 2, the former practice in Chancery (though not at Common Law) having been that an attachment might be obtained without further order, or notice to the party, on proof of service and non-compliance: see Abud v. Riches, 2 Ch. D. 528.

Notice is necessary upon an application for attachment against a sheriff for not returning a writ of fi. fa.: Jupp v. Cooper, 5 C. P. D. 26; or against