formance of any contract be not complied with, the Court or a Judge, besides or instead of proceedings against the disobedient party for contempt, may direct that the act required to be done may be done so far as practicable by the party by whom the judgment or order has been obtained, or some other person appointed by the Court or Judge, at the cost of the disobedient party, and upon the act being done, the expenses incurred may be ascertained in such manner as the Court or a Judge may direct, and execution may issue for the amount so ascertained, and costs. O. 42, r. 30, (E). 0. XLI, rr. 27, 28. 495 judgment or corporation. 27. Any judgment or order against a corporation wilfully Enforcing disobeyed may, by leave of the Court or a Judge, be enforced order against by sequestration against their property, or by attachment. against the directors or other officers thereof, or by writ of sequestration against their property. O. 42, r. 31, (E). time 28. An award may with the leave of the Court or a Judge, and on such terms as may be just, be enforced at any though the time for moving to set it aside has not elapsed. O. 42, r. 31a., (E). 496 Enforcing award. ORDER XLII. WRITS OF EXECUTION AND SEQUESTRATION. O. XLII, rr. 1.2. 497 Effect and manner of writs. 1. Writs of execution in the forms in use immediately preceding the coming into force of these Rules, and in the forms in execution of Appendix H., shall have the same force and effect as the like writs have heretofore had, and shall be executed in the same manner in which the like writs have heretofore been executed. O. 43, r. 1, (E), um. 498 to enforce of act. 2. Where any person is by any judgment or order directed Sequestration to pay money into court or to do any other act in a limited performance time, and after due service of such judgment or order refuses [Cf. R. 859, (O)]. or neglects to obey the same according to the exigency thereof, the person prosecuting such judgment or order shall, at the expiration of the time limited for the performance thereof, be entitled, without obtaining any order for that purpose, to issue a writ of sequestration against the estate and effects of such disobedient person. Such writ of sequestration shall have the same effect as a writ of sequestration in Chancery had in England before the commencement of the English O. XLII, rr. 3, 4. 499 No subpoena, or without Supreme Court of Judicature Act, 1873, and the proceeds of such sequestration may be dealt with in the same manner as the proceeds of writs of sequestration were before the same date dealt with by the said Court of Chancery. O. 43, r. 6, (E), am. 3. No subpoena for the payment of costs, and, unless by leave, seques leave of the Court or a Judge, no sequestration to enforce such payment, shall be issued. O. 43, r. 7, (E), um. tration for costs. 500 Venditioni exponas. O. XLIII, rr. 1--3. 501 Effect of writ of attachment. 502 Writ of attachment not to leave. 4. A writ of venditioni exponas may be issued and executed in the same cases and in the same manner as heretofore, and may be issued against goods and chattels alone, or lands alone. O. 43, r. 5, (E), am.; R. 845, (O). ORDER XLIII. ATTACHMENT. 1. A writ of attachment against the person shall have the same effect as a writ of attachment issued out of the Supreme Court in Equity or out of the Chancery Division of the High Court of Justice in England has heretofore had. O. 44, r. 1, (E), am.; R. 854, (O). 2. No writ of attachment shall be issued without the issue without leave of the Court or a Judge, to be applied for on notice to the party against whom the attachment is to be issued. O. 44, r. 2, (E). 503 Relief. 0. XLIV, r. 1. 504 of entry of or memorial of judgment. 3. In case an attachment has been issued under any order of the Court or a Judge that a person be committed to gaol for contempt of Court, and there to be detained and imprisoned until such person shall have purged his said contempt, if it be made to appear that such person is in actual custody under such attachment, the Court or Judge may, upon such notice as may be directed, modify and change the order and limit the term of imprisonment under such attachment or grant such other relief as may in the nature and circumstances of the case seem just, but any relief that may be granted to any such person shall not relieve him from any civil liability to any other person. R. 861, (0). ORDER XLIV. MEMORIALS OF JUDGMENTS, ETC. Certified copy 1. A certified copy of the entry, or of any part thereof, or a memorial thereof, shall be evidence of any judgment or order, or of the part thereof required, either in Court or before a Judge, or for registry in any county registry of deeds. Any memorial of any judgment or order or of any part thereof may be in Form No. 19, in Appendix F., or in the form required by and in accordance with the provisions of Chapter 128 of the Consolidated Statutes, 1903, with such variations as the circumstances of the case may require. When the memorial is in the Form No. 19, in Appendix F., it shall be sufficient if it is under the hand of the proper officer and seal of the Court, and it may be recorded in the office of the registrar of deeds of any county on production thereof to him without further proof. C. S. 1903, c. 112, s. 128, am. O. XLIV, r. 2. 505 registration of judgment for 2. A judgment or order directing the payment of money Effect of by a party shall from the time when a memorial thereof shall memorial of be registered in any county where there may be lands of the payment of party bind such lands for the time and in the manner provided in Chapter 128 of the Consolidated Statutes, 1903. C. S. 1903, c. 112, s. 129, am. ORDER XLV. WRIT OF POSSESSION. money. 0. XLV. rr. 1-4. 506 of land. 1. A judgment or order that a party do recover possession For recovery of land may be enforced by writ of possession in manner [R. 846, (O)]. heretofore in use in England in actions of ejectment in superior courts of common law. O. 47, r. 1, (E), am. 2. 507 on proof of judgment and Where by any judgment or order any person therein Writ obtained named is directed to deliver up possession of any lands to service of some other person on or at any specified time after being default. served with the judgment or order, the person prosecuting such judgment or order shall, without any order for that purpose, be entitled to sue out a writ of possession on filing an affidavit showing due service of such judgment or order, and that the same has not been obeyed. O. 47, r. 2, (E), am.; R. 847, (O). 508 land and costs. Upon any judgment or order for the recovery of any Execution for land and costs, there may be either one writ or separate writs (Cf. R. 849, (O)]. of execution for the recovery of possession and for the costs at the election of the successful party. O. 47, r. 3, (E). 509 4. A writ of possession shall have the effect of a writ of Effect of writ. assistance, as well as of a writ of habere facias possessionem. [R. 848, (O)]. 0. XLVI, rr. 1, 2. 510 Writ of delivery for recovery of property other than land or money. ORDER XLVI. WRIT OF DELIVERY. 1. Where it is sought to enforce a judgment or order for the recovery of any property other than land or money by writ of delivery, the Court or a Judge may, upon the appli[Cf. R. 852, (O)], cation of the plaintiff, order that execution shall issue for the delivery of the property, without giving the defendant the option of retaining the property, upon paying the value assessed, if any, and, that if the property cannot be found, and unless the Court or a Judge shall otherwise order, the sheriff shall distrain the defendant by all his lands and chattels in the sheriff's bailiwick, till the defendant deliver the property; or at the option of the plaintiff, that the sheriff' cause to be made of the defendant's goods the assessed value, if any, of the property. O. 48, r. 1, (E). 511 Form of writ. costs and interest. 2. A writ of delivery shall be in the Form No. 6 in for damages, Appendix H., and when a writ of delivery is issued, the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant's goods the damages and costs awarded, and interest. O. 48, r. 2, (E). [Cf. R. 852, (O)]. O. XLVII, rr. l. 2. 512 Interim preservation of property. [R. 1095, (O)]. 513 Early trial of cause. I. ORDER XLVII. INTERLOCUTORY ORDERS AS TO MANDAMUS INJUNCTIONS 1. When by any contract a prima facie case of liability is established, and there is alleged as matter of defence a right to be relieved wholly or partially from such liability, the Court or a Judge may make an order for the preservation or interim custody of the subject-matter of the litigation, or may order that the amount in dispute be brought into Court or otherwise secured. O. 50, r. 1, (E). 2. Whenever an application shall be made before trial for an injunction or other order, and on the opening of such application, or at any time during the hearing thereof, it shall appear to the Judge that the matter in controversy in the cause or matter is one which can be most conveniently dealt with by an early trial, without first going into the whole merits on affidavit or other evidence for the purposes of the application, it shall be lawful for the Judge to make an order for such trial accordingly, and to direct such trial to be held at the next or any other sittings for any place, if from local or other circumstances it shall appear to him to be convenient so to do, or to set the same down for trial before himself or any other Judge at any time deemed convenient, and in the meantime to make such order as the justice of the case may require. O. 50, r. 1a, (E), am. O. XLVII, rr. 3-7. 514 of perishable [R. 1997. (O)]. 3. The Court or a Judge, upon the application of any Order for sale party, may make an order for the sale, by any person or per- goods. sons named in such order, and in such manner, and on such terms as the Court or Judge may think desirable, of any goods, wares, or merchandise which may be of a perishable nature or likely to injure from keeping, or which for any other just and sufficient reason it may be desirable to have sold at once. (). 50, r. 2, (E). 515 preservation of property. 4. The Court or a Judge, upon the application of any Detention, party to a cause or matter, and upon such terms as may be or inspection just, may make any order for the detention, preservation, or [R. 1095, (O)). inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid, to authorize any persons to enter upon or into any land or building in the possession of any party to such cause or matter, and for all or any of the purposes aforesaid to authorize any samples to be taken, or any observation to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence. O. 50, r. 3, (E). Judge. 516 5. Any Judge, by whom any cause or matter may be heard Inspection by or tried with or without a jury, or before whom any cause or [R. 570, (O)]. matter may be brought by way of appeal, may inspect any property or thing concerning which any question may arise therein. O. 50, r. 4, (E). jury. 517 6. The provisions of Rule 4 of this Order shall apply to Inspection by inspection by a jury, and in such case the Court or a Judge (Cf. R. 571, (9)]. may make all such orders upon the sheriff or other person as may be necessary to procure the attendance of a special or common jury at such time and place, and in such manner as tion or mandathey or he may think fit. O. 50, r. 5, (E). 7. A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the Court in 518 When injune mus may be granted, or receiver appointed, by interlocutory order. all R. S. O. 1897, c. 51, s. 58 (9)]. |