should not pay to the person who has obtained such judgment or order the debt due from him to such debtor, or so much thereof as may be sufficient to satisfy the judgment or order (b).

"Service of an order that debts, due or accruing to a debtor liable under a judgment or order, 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 (c).

"If the garnishee does not forthwith pay into Court the amount due from him to the debtor, liable under a judgment or order, or an amount equal to the judgment or order, and does not dispute the debt due or claimed to be due from him to such 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 levy the amount due from such garnishee, or so much. thereof as may be sufficient to satisfy the judgment or order (d).

"If the garnishee disputes his liability, the Court or judge, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in an action may be tried or determined (e).

"Whenever in proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the Court or a judge may order such third person to appear, and state the nature and particulars of his claim upon such debt (ƒ).

"After hearing the allegations of any third person under such order, as in rule 5 mentioned, and of any

(b) Ord. XLV. r. 1.

(c) Rule 2.

(d) Rule 3.
(e) Rule 4.

(f) Rule 5.

other person whom by the same or any subsequent order the Court or a judge may order to appear, or in case of such third person not appearing when ordered, the Court or judge may order execution to issue to levy the amount due from such garnishee, or any issue or question to be tried or determined according to the preceding rules of this Order, and may bar the claim of such third person, or make such other order as such Court or judge shall think fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as the Court or judge shall think just and reasonable (g).

"Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the debtor, liable under a judgment or order, to the amount paid or levied, although such proceeding may be set aside, or the judgment or order reversed" (h).

But in all such proceedings the assignee will be governed by whatever course the assignor had previously taken in respect of the chose in action (i).

Order nisi should be served personally, although such service is not absolutely necessary; service two clear days before return day is sufficient.

An equitable debt is attachable under this order (j); so is a debt due, but payable in futuro (k); a debt due to one of three joint debtors (); rent (m); a debt undoubted though unascertained in amount (n); a debt due to the judgment debtor as executor (o); an annuity

Q. B. 591; Jones v. Thompson,
E. B. & E. 63.

(1) Miller v. Mynn, 28 L. J. Q. B. 324; 7 W. R. 524.

(m) Mitchell v. Lee, L. R. 2 Q. B. 259; Barnett v. Eastmann, 67 L. J. Q. B. 517.

(n) Daniel v. McCarthy, 7 Ir. C. L. R. 261.

(0) Burton v. Roberts, 29 L. J. Ex. 484; Fowler v. Roberts, 8 W. R. 492.

payable to a widow by the trustees of her husband's will (p); generally, money in the hands of third persons for the use and benefit of the judgment debtor (g) ; money paid into Court and standing to the credit of a party to a cause (); a pension given purely for past services (s).

But a pension not merely given for past services is not attachable (t); nor is the pay or half-pay of officers and the like in the army, navy, or civil service (u); nor the amount awarded by a verdict upon which judgment has not been signed (r); nor, of course, debts bonâ fide assigned by the judgment debtor before the judgment is obtained against him (w); nor is a legacy in the hands of an executor attachable for the legatee's debts (x); nor a salary not yet payable and only partly earned (y); nor the surplus of a bankrupt's estate in the trustee's hands (z); nor a married woman's separate income restrained from anticipation (a); nor

(p) Nash v. Pease, 47 L. J. Q. B. 766; Webb v. Stenton, 11 Q. B. D. 518.

(9) Ex parte Turner, 30 L. J. Ch. 92; Webb v. Stenton, 11 Q. B. D. 518; Tapp v. Jones, L. R. 10 Q. B. 591; In re Cowans, L. R. 14 Ch. D. 638; O'Neill v. Cunningham, 6 Ir. R. C. L. 503. But see Williams v. Reeves, 12 Ir. Ch. R. 173; Seymour v. Corporation of Brecon, 29 L. J. Ex. 243; Dolphin v. Layton, L. R. 4 C. P. D. 131; Bouch v. Sevenoaks, &c. Rail. Co., L. R. 4 Ex. 133. But see M'Dowell v. Hollister, 25 L. T. Ex. 185; Ballard v. Marsden, 14 Ch. D. 374.

(r) Adam v. Gillem, 9 Ir. R. C. L. 140, sed quære. See Jones v. Brown, 29 L. T. 79; Williams v. Reeves, supra.

(8) Willcock v. Terrell, 3 Ex. D. 323; Sansom v. Sansom, L. R. 4 P. D. 69; Booth v. Trail, 12 Q. B. D. 8 Dent v. Dent, L. R. 1 P. & D. 366.

(t) Lucas v. Harris, 18 Q. B. D. 127; Birch v. Birch, L. R. 8

P. D. 163; Innes v. East India
Co., 25 L. J. C. P. 154; Ex parte
Hawker, L. R. 7 Ch. Ap. 214.

(u) Apthorpe v. Apthorpe, L. R. 12 P. D. 192; Flarty v. Odlum, 3 T. R. 681.

(t) Jones v. Thompson, 27 L. J. (N. S.) Q. B. 234. Cp. Shaw v. Shaw, 18 L. T. Ir. Q. B. 420; Dresser v. Jones, 28 L. J. C. P. 281; In re Newman, Ex parte Brooke, 3 Ch. D. 494; Randall v. Lithgow, 12 Q. B. D. 525.

(w) Hirsch v. Coates, 25 L. J. C. P. 315; Wise v. Birkenshaw, 29 L. J. Ex. 240; Pickering v. Ilfracombe Rail. Co., L. R. 3 C. P. 235; Robinson v. Nesbitt, L. R. 3 C. P. 264.

(a) M'Dowell v. Hollister, supra. (y) Hall v. Pritchett, 3 Q. B. D.

215.

(z) Hunter v. Greensill, L. R. 8 C.P.24; Boyes v. Simpson, 8 Ir. C. L. R. 523; Ex parte Turner, 30 L. J. Ch. 92.

(a) Chapman v. Biggs, 11 Q. B. D. 27. But see Stevens v. Phelips, L. R. 10 Ch. Ap. 417.

money in custodiâ legis (b); nor purchase-money of land compulsorily taken by a railway company before executing a conveyance of the land; nor a judgment for specific performance to purchase lands (c); nor money not yet due on a negotiable instrument (d); nor wages (e).

EXECUTION.

Another remedy given to the assignee under the Judicature Act, 1873, is that of execution, in its widest sense, against the interest of a person who, being liable to pay upon a judgment or order, has omitted to comply

therewith.

Where any person is by any judgment or order directed to pay any money, or to deliver up or transfer any property real or personal to another, it shall not be necessary to make any demand thereof, but the person so directed shall be bound to obey such judgment or order upon being duly served with the same without demand (f).

A judgment for the recovery by or payment to any person of money may be enforced by any of the modes by which a judgment or decree for the payment of money of any Court whose jurisdiction is transferred by the principal Act might have been enforced at the time of the passing thereof (g).

This enforcement may be by-
(i) writ of fi. fa. or elegit;
(ii) garnishee;

(b) Dolphin v. Layton, L. R. 4 C. P. D. 133; Westhead v. Riley, 25 Ch. D. 413; De Winton v. Brecon, 28 Beav. 200; Stevens v. Phelips, L. R. 10 Ch. Ap. 417.

(c) Howell v. Met. Dist. Rail. Co., 19 Ch. D. 515.

(d) Pine v. Kinna, 11 Ir. R. C. L. 40.

(e) 17 & 18 Vict. c. 104, s. 233; 33 & 34 Vict. c. 30. See, also, Cababé, Attachment of Debts, and cases there cited.

(ƒ) Ord. XLII. r. 1.

(g) Id. r. 3. See Re Woodfin and Wray, 30 W. R. 422; Swyny v. Harland, (1894) 1 Q. B. 707.

(iii) appointment of a receiver;
(iv) writ of sequestration;
(v) writ of ca. sa. ;

according to the particular circumstances and subjectmatter of the case (h).

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 (i).

A judgment for the recovery or for the delivery of the possession of land may be enforced by writ of possession (k).

A judgment for the recovery of any property other than land or money may be enforced

(a) By writ for delivery of the property;

(b) By writ of attachment;

(c) By writ of sequestration (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 (m).

In these rules the term "writ of execution" shall include writs of fieri facias, capias, elegit, sequestration, and attachment, and all 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 (n).

(h) For (i) see infra, Ord. XLII. r. 17; Ord. XLIII. rr. 1-5; for (ii) see ante, pp. 365-369; for (iii) see post, pp. 379-383, Ord. L. r. 16; for (iv) see infra, Ord. XLII. r. 31; Ord. XLIII. rr. 3, 6; for (v) see post, pp. 376-379, Debtors Act, 1869 (32 & 33 Vict. c. 62), 88. 4 (3), (4), 5; Ord. XLIV. (i) Ord. XLII. r. 4. (k) Id. r. 5.

(1) Rule 6. (m) Rule 7. But see 47 & 48 Vict. c. 68, s. 2; Weldon v. Weldon, 54 L. J. P. 60. See, also, Hearn v. Tennant, 14 Ves. 136; 9 R. R. 253; Avery v. Andrews, 51 L. J. Ch. 414; Callow v. Young, 56 L. J. Ch. 690; Smith v. Day, 13 Ch. D. 651.

(n) Ord. XLII. r. 8; Norburn v. Norburn, (1894) 1 Q. B. 448.