shop or other building of the judgment debtor, not being his dwelling-house or connected therewith: Hodder v. Williams, (1895) 2 Q. B. 663, C. A. For committal in cases of special contempt, privilege from arrest, and discharge on clearing the contempt, v. inf., Sects. vii. and viii.

COMMITTAL UNDER DEBTORS ACT, 1869, s. 5-ARREST UNDER SECT. 6.

The jurisdiction by the Debtors Act, 1869, s. 5, given to any Court to commit to prison, for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt, or instalment of any debt, due from him in pursuance of any order or judgment of that or any other competent Court, is now, by the operation of the Bankruptcy Act, 1883 (46 & 47 V. c. 52), s. 103, and the Bankruptcy Rules (1886), 355-362, transferred to the Judge in bankruptcy.

Where judgment has been given for payment of a past debt by instalments in futuro, an order for commitment for default in payment of an instalment is not an anticipatory order, and may be validly made: Stonor v. Fowle, 13 App. Ca. 20.

A creditor who having recovered judgment in the High Court, afterwards obtains from a County Court Judge an order under s. 5 of the Debtors Act, 1869, for payment by instalments, cannot, so long as that order is in force, issue execution upon his judgment in the High Court: Montgomery & Co. v. De Bulmes, (1898) 2 Q. B. 420, C. A. (dissenting from dicta of Cave, J., in Re Ives, Exp. Addington, 16 Q. B. D. 670, 671, and approving the principle of Jones v. Jenner, 25 L. J. Exch. 319).

Sect. 14 (1) of the Sheriffs Act, 1887 (50 & 51 V. c. 55), does not apply to commitment under s. 5 of the Debtors Act, and does not prevent the imprisonment of the debtor within twenty-four hours after his arrest: Mitchell v. Simpson, 52 Q. R. D. 183, C. A.

By sect. 6 of the Debtors Act, 1869 (which abolished arrest on mesne process in any action), power was given to the Superior Courts of Law to order the arrest of the Deft against whom the Plt before final judgment proves a good cause of action of 501. and upwards, and that the Deft intends to leave England, and his absence will materially prejudice the Plt in the prosecution of his action. But in general no order is granted unless the Deft is a material witness, or is taking away material documents.

But after final judgment a Deft could not be detained in prison under sect. 6, as the prosecution of the Plt's action could not then be prejudiced by the Deft's absence: see Hume v. Druyff, L. R. 8 Ex. 214.

SECTION IV.-ENFORCING RETURN OF WRITS.

1. Order for Sheriff's Committal-O. LII, 11.

WHEREAS the solr for the Plt on the day of, gave notice to the sheriff of -, calling upon him to return the writ of attachment issued against the Deft B. for his contempt in not &c. [State the contempt]; Now upon motion &c., by counsel &c., who alleged that notwithstanding the said notice the said sheriff has not returned the

said writ of attachment; and upon reading the affidavit of &c., This Court doth order that the said sheriff of do stand committed to prison for his said contempt.

--

NOTES.

By O. LII, 2, no motion or application for a rule nisi or order to show cause shall hereafter be made in an action against a sheriff to pay money levied under an execution. O. LII, 11, provides that no order shall issue for the return of any writ, or to bring in the body of a person ordered to be attached or committed; but a notice from the person issuing the writ or obtaining the order for attachment or committal (if not represented by a solr), or by his solr, calling upon the sheriff to return such writ, or to bring in the body within a given time, if not complied with, shall entitle such person to apply for an order for the committal of such sheriff.

The notice is substituted for the former order of course,

Upon application ex parte for order nisi, the sheriff was ordered to pay both the costs of the order nisi and of the previous order of course: Re Heiron's Estate, Hall v. Fry, 12 Ch. D. 795.

It seems that under O. XLII, 7, 26, the applicant may move on notice (see Jupp v. Cooper, 5 C. P. D. 26) for his committal, or for an attachment.

If the attachment is to go against the late sheriff, it will be directed to the present sheriff, but if against the present sheriff it will be directed to the coroner: see Chitt. Archb. pt. i. p. 823.

Pending an interpleader issue, the sheriff cannot be compelled to make his return immediately: Angell v. Baddeley, 3 Ex. D. 49, C. A.

Since the Jud. Acts came into operation (Nov. 1875) no particular return day has been inserted in writs of attachment issued out of the Central Office. The form of that writ given in R. S. C. App. H., Form 12, does not suggest the insertion of a date of return; but when a reasonable interval has elapsed the sheriff may be required to make a return to the writ: see Owen v. Pritchard, W. N. (76) 147.

The sheriff may in like manner be ordered to return the writs of fieri facias, elegit, and other writs directed to him.

For the practice as to the returns of the writs in the Q. B. and other Common Law Divisions, see Chitt. Archb. pt. i. pp. 815–822.

The seizure of land by the sheriff is complete when he delivers in execution, and is not governed by the formal return of the writ: Re Hobson, 33 Ch. D. 493.

By the Sheriffs Act, 1887 (50 & 51 V. c. 55), s. 28, sub-s. 3, a sheriff shall not be called upon to make a return of any writ after the expiration of six months from the date at which he ceases to hold his office.

SECTION V.-SERJEANT-AT-ARMS-HABEAS CORPUS.

1. Order for Serjeant-at-Arms, on return of Attachment Non est Inventus-Gen. Ord. 7 Jan. 1870, r. 6.

WHEREAS by an order dated &c., it was ordered, &c. [Recite the direction required to be performed]; Now, upon motion &c. by counsel &c., who alleged that a writ of attachment issued against the said

(Deft) B. for not, &c. [State the default], directed to the sheriff of —, and that the said sheriff hath returned non est inventus thereon; and upon reading the said order, writ, and return, This Court doth order that the Serjeant-at-Arms attending this Court do apprehend the said (Deft) B., and bring him to the bar of this Court to answer his said contempt; and thereupon such further order shall be made as shall be just.

For form of application, see D. C. F. 437.

NOTES.

Where an attachment is issued and returned non est inventus, the party prosecuting will still be entitled to an order for the Serjeant-at-Arms: Ord. 7 Jan. 1870, rr. 6, 7 and 8; O. XLII, 28. It is, however, believed that an application for Serjeant-at-Arms is rarely made in modern practice: see D. C. F. 437; Dan. 713.

For the practice as to the Serjeant-at-Arms, and as to his powers, see Cons. Ord. 29, r. 4, and 30, rr. 1, 2; 0. XLII, 1; Gen. Ord. 7 Jan. 1870, r. 6; Dan. 6th ed. 889; G. v. L., (1891) 3 Ch. 126; where he was directed to deliver the person of an infant to the guardian having the right of custody under the order of the Court.

The order for the serjeant must be delivered to him, or to his deputy by the Registrar: Cons. Ord. 30, r. 2.

The same order (rr. 4, 5) abolished the former writs of execution under the Great Seal, attachment with proclamation, and writ of rebellion, which were preliminary to the order of the Court for the Serjeant-at-Arms, and the subsequent process of sequestration: See Gilb. For. Rom. 77, 166.

But where the party was proved to be abroad, the attachment was not required to be issued pro forma as a foundation for subsequent process: Hodgson v. H., 23 Beav. 604; Butler v. Mathews, 19 Beav. 549; Re East of England Bk., 2 Dr. & Sm. 284.

2. Order to turn over Prisoner brought up by Serjeant-at-Arms to Holloway Prison.

THE (Deft) A. being this day brought to the bar of this Court by the Serjeant-at-Arms attending this Court to answer his contempt in not &c. [State the default], and still persisting in his said contempt, It is upon motion &c., ordered that the said (Deft) A. be turned over to Holloway Prison, and do remain there until he shall &c. [State what he is required to do] clear his contempt, and this Court make other order to the contrary.

For form of application, see D. C. F. 438.

3. Order for Habeas to bring up Prisoner on his own Application. UPON motion &c., by counsel for the (Plt or Deft) A., who alleged that an attachment issued against him for his contempt in not &c. [State the default], pursuant to the judgment [or order] dated &c., directed to the sheriff of &c., and that the said (Plt or Deft) A. is now a prisoner in the custody of the said sheriff; and upon reading the said judgment [or order] &c., This Court doth order that a writ of habeas corpus cum causis do issue directed to the said sheriff, at the return thereof, commanding him to bring the said (Plt or Deft) A. to the bar of this Court; whereupon such further order shall be made as shall be just.

4. Order for Habeas to bring up Prisoner to make Application

touching his Contempt.

UPON the humble petition of S., a prisoner for contempt of Court in the prison at W., in the county of &c., this day preferred unto &c. for the reasons therein contained, It is ordered that a writ of habeas corpus cum causis do issue directed to the keeper of the W. prison, commanding him to bring the body of the Petr S. to the bar of this Court before the Hon. Mr. Justice on (Friday) the day of -, to make any application touching his said contempt, and to be dealt with as the Court may direct.-Re Scard, M. R., 11 March, 1879, on petition of

course.

For forms of application, see D. C. F. 438.

5. To turn over a Prisoner brought up on Habeas obtained by

himself.

(THE Deft) B. against whom a writ of attachment hath been issued for not &c. [State contempt], being this day brought to the bar of this Court by virtue of a writ of habeas corpus cum causis directed to the sheriff of &c. and issued pursuant to an order made upon the application of the said (Deft) B., It is upon motion by counsel for the said (Deft) B. ordered that the said (Deft) B. be turned over to (Holloway) prison, and do remain there until he shall [State what he is required to do] clear his contempt and this Court make other order to the contrary. For the alternative order where, on being brought up, the prisoner obtains his discharge, see Form 1, inf. p. 471.

6. To bring up a Prisoner before the Court.

UPON motion &c., by counsel for the Deft, And upon reading &c., This Court doth order that the Governor of H. M. Prison at H. do produce the said Deft A. G. D., a prisoner in the said prison under an order of the Q. B. D. of this Court, before Mr. Justice, in his Lordship's Court, at the Royal Courts of Justice, Strand, London, on — - day of o'clock in the forenoon precisely. See Jenks

the

at

v. Ditton, Stirling, J., 21 May, 1897, A. 2615.

NOTES.

The order to turn over is made on motion of course.

Where, on the party being brought up, the matter is postponed, and a new writ is directed to issue (which, if the Court shall so direct, may be without payment of any fee), the registrar indorses the order for the habeas "Let another habeas issue, returnable on the &c., at o'clock in the noon of the day of": see O. XXXVI, 35.

A person taken to prison under an attachment need not be brought up to the bar of the Court, to be turned over to Holloway Prison (substituted for Whitecross Street Prison by order of the Home Secretary under 25 & 26 V. c. 104, s. 12), but where the person in contempt himself desires to be brought before the Court in reference to his contempt, or where he has been taken to a country prison and wishes to be turned over to Holloway Prison, the habeas will still be necessary.

VOL. I.

G G

For form of writ of habeas corpus, see R. S. C., App. J., Form 2; D. C. F.

439.

If the prisoner is already imprisoned or detained in Holloway Prison, the order will remand him there: Davies v. Nixon, V.-C. K., 25 Nov. 1862, A. 2116.

The Court cannot grant a habeas corpus to a party to an action in custody to enable him to appear in Court merely for the purpose of arguing his case in person: Weldon v. Neal, 15 Q. B. D. 471; Benns v. Moseley, 2 C. B. N. S. 116; Short's Crown Office Practice, 366.

Since the commencement of the Jud. Act, 1890 (53 & 54 V. c. 44), the Court, when granting an application for a habeas corpus, has jurisdiction, by sect. 5 of that Act, to order payment by the Deft of the costs of the application, and such jurisdiction is not affected by the provisions of sect. 4: The Queen v. Jones, (1894) 2 Q. B. 382.

As to the power of the Secretary of State to order production of a prisoner, see Prison Act, 1898 (61 & 62 V. c. 41), s. 11; and see Dan. 548.

SECTION VI.-SEQUESTRATION.

(1.)-ISSUE OF SEQUESTRATION.

1. Order for Sequestration on return of Attachment. WHEREAS by the judgment [or order] dated &c., it was ordered [Recite the direction required to be performed]; Now upon motion by counsel &c., who alleged that an attachment issued against (the Deft) B. for his contempt in not &c. [State the default] directed to the sheriff of and that the said sheriff hath returned that the said (Deft) B. is a prisoner in his custody [or, non est inventus thereon]; And upon reading the said judgment [or order], and the said writ and return thereon, This Court doth order, that a commission of sequestration do issue, directed to certain commissioners to be therein named, to sequester the said (Deft) B.'s personal estate, and the rents, profits, and issues of his real estate, until the said (Deft) B. shall [State the act required to be done] clear his contempt, and this Court make other order to the contrary.-See Morgan v. Davies, V.-C. E., 3 Dec. 1847, B. 117.

For orders for sequestration against a local board and against railway co. for breach of an injunction and for breach of an undertaking, see Chap. XXXI., "INJUNCTIONS."

For the form of the writs of sequestration, see R. S. C., App. H., Form 13; and for the præcipe, Ib. App. G., Form 6; and of the writ of sequestrari facias de bonis ecclesiasticis issuable upon return of the ordinary writ of fieri facias, see App. H., Form 7; and see O. XLIII, 3, 4; Allen v. Williams, 2 S. & G. 455; Norton v. Pritchard, V.-C. E., 7 Oct. 1845, B. 1568; D. C. F. 445–448.

2. The like-on return of Serjeant-at-Arms Non est Inventus.

WHEREAS by an order dated &c. it was ordered &c. [Recite direction required to be performed]: And whereas the (Deft) B. sits out all pro