The judge may adjourn the hearing of the summons from time to time (m).

The costs of the summons and proceedings are costs in the cause (n).

If the party summoned did not attend or allege a sufficient excuse for not attending, he might, previous to the passing of 22 & 23 Vict. c. 57, be committed to prison by order of the judge, but now he may not be. If, however, he attends and refuses to be sworn or to disclose the requisite matters,—or if he does not make answer touching the same to the satisfaction of the judge,-or whether he attends or not, if it appears to the judge, either by the examination of the party or by any other evidence, that such party, if a defendant, in incurring the debt or liability which is the subject of the action in which judgment has been obtained, has obtained credit from the plaintiff under false pretences,-or by means of fraud or breach of trust, or has wilfully contracted such debt or liability, without having had at the same time a reasonable expectation of being able to pay or discharge the same,—or has made or caused to be made any gift, delivery or transfer of any property,-or has charged, removed or concealed the same with intent to defraud his creditors, or any of them, or if it appears to the satisfaction of the judge that the party so summoned has then, or has had since the judgment was obtained against him, sufficient means and ability to pay the debt, or damages, or costs so recovered against him, either altogether or by any instalment or instalments which the court in which the judgment was obtained may have ordered, and if he refuses or neglects to pay the same as so ordered, or as may be ordered as hereafter mentioned, the judge may, if he thinks fit, order him to be committed for any period not exceeding forty days (o).

The judge, in acting under this power, is required in deciding whether the party summoned before him has then or has had since the judgment obtained against him sufficient means and ability to pay the debt or damages or costs so recovered against him, either altogether or by any instalment or instalments as ordered, to take into consideration all the debts and liabilities of the party so

(m) Rule 158,

(n) 9 & 10 Vict. c. 95, s. 98, p.

412.

(0) 9 & 10 Vict. c. 95, s. 99, as amended by 22 & 23 Vict. c, 57, p. 413. See form 74 App.

CHAP. X.

PART I.

Rescinding or altering order.

summoned, and his conduct in disposing of his money or property since the judgment was given (p).

The power of a judge to make an order to commit a defendant at the hearing of a plaint has been already noticed (9). Where, however, a defendant does not dwell or carry on business in the district of the court to which he has been summoned to appear to a plaint, he is not liable to be committed at the hearing of the summons, under sect. 101 of 9 & 10 Vict. c. 95, whether he appears to it or not (r).

A warrant of commitment was held valid, although it stated in the alternative that the defendant had made a "gift, delivery or transfer of property with intent to defraud his creditors" (s). An order may not be made in the alternative, to pay or be committed, since the effect of it is to delegate to the officer of the court, or the party putting it in force, a discretion vested by the statute in the judge, who must decide whether or not he will commit a defendant upon the existing facts as they are brought before him, and not upon any contingency which may arise subsequently to the making of the order; therefore, where a judge made an order requiring a defendant to pay an instalment on a future day, or in default be committed, it was held to be invalid (t).

Where the commitment is for non-payment, it should be made part of the order that, on production of a certificate signed by the registrar, stating that payment or satisfaction of the sum, or of the instalment thereof, and costs remaining due at the time of making the order of commitment, together with all subsequent costs, has been made, the defendant shall be discharged without further leave of the judge (u).

Rescinding or altering Order.]-The judge before whom the summons is heard may, whether he makes an order for committal or not, rescind or alter any order previously made against the defendant for payment by instalments or otherwise, and may make any further or other order,

either for the payment of the whole debt or damages, with costs, forthwith, or by instalments, or in any other manner which seems to him reasonable and just (v); and in such case all payments made under the order are to be made into, and execution issue by, the court rescinding or altering the order (x).

СНАР. Х.

Warrant of Commitment.]-When an order of com- Warrant of mitment is made, the registrar issues under the seal of commitment. the court a warrant of commitment (y) to one of the bailiffs, to take the body of the person against whom the order is made (z). The warrant must bear date on the day on which the order for commitment was made, and continues in force for one year from such date, and no longer; but no order for commitment need be drawn up or served (a).

Form-of Warrant.]-The warrant may be in the form, Form of. or to the effect, given in Sched. (B) to the Act 19 & 20 Vict. c. 108, and is sufficient to justify proceedings under it without any further statement of facts to show jurisdiction (b).

-

Concurrent Warrants.] Warrants of commitment Concurrent against the same party may be issued concurrently into warrants. one or more districts; but the costs of more than one warrant will not be allowed against such party unless by order of the judge (c).

To what Prison.]-By the 9 & 10 Vict. c. 95, s. 98, To what prison. defendants committed under the above power were to be committed to the common gaol or house of correction of the county, district or place in which the party summoned resided, or to any prison provided as the prison of the court (d). By the later act, 12 & 13 Vict. c. 101, s. 1, defendants may be committed to the common gaol wherein the debtors under judgment and in execution of the superior courts may be confined for the county, &c., in which the party or defendant is resident, or to any

PART I.

Execution of.

When.

Discharge from custody.

other gaol or debtors' prison for the same county, &c., which by declaration of the Secretary of State is allowed, so long as such declaration is in force; or to any prison provided as the prison of the court under sect. 49 of 9 & 10 Vict. c. 95 (e).

The bailiff to whom the warrant of commitment is issued is empowered to take the body of the person against whom the order was made, and all constables and other peace officers are to give their aid in executing it, and the gaoler or keeper of every gaol, house of correction and prison, mentioned in the order, must receive and keep the defendant therein until discharged under the provisions of the act, or otherwise by due course of law (ƒ).

Care must be taken to execute the warrant against the right person; if the plaintiff direct its execution against a person not named in it, he is liable in trespass (g).

The warrant must be executed within the year during which it is in force (h); but if the debtor be taken under it within the year, he may be detained thereunder for the term for which he was committed, notwithstanding such term may not expire until after the expiration of the year (i).

Discharge from Custody.]-Any person imprisoned may obtain his discharge from custody upon the certificate of the registrar by leave of the judge who made the order of imprisonment, that he has paid or satisfied the debt or demand, or the instalments thereof payable, and the costs remaining due, at the time of the making of the order (k).

(e) When this section was passed, a judgment debtor could only be summoned to the court of the district in which he resided, and no doubt could arise as to the prison to which he could be committed. He may now, under sect. 48 of the 19 & 20 Vict. c. 108, be summoned, by leave of the judge, to the court in which the judgment was obtained, and it would appear that the judge must commit him to the prison of the district in which he resides; so that as in every case, whether he appears or not, the prison of the district in which he resides is that to which the judge has alone power to commit him, the warrant should be sent for execution to the high bailiff of that

district; and if he is not then in that district, it can be sent from there into the district into which he may have gone, under the provisions of section 104 of the 9 & 10 Vict. c. 95.

(f) 9 & 10 Vict. c. 95, s. 102, p. 414.

(g) Whalley v. M'Connel, 13 Q. B. 903; S. C., 19 L. J., Q. B. 162.

(h) Ante, p. 161. Before the 19 & 20 Vict. c. 108, s. 59, the practice was regulated by Rule 135 of 1861. See also Ex parte O'Neil, 1 L. M. & P. 737.

(i) Hayes v. Keene, 21 L. J., C. P. 204; S. C., 16 Jur. 976.

(k) 9 & 10 Vict. c. 95, s. 110, p.

420.

By a rule it is provided, that this leave of the judge shall be part of the order, so that upon such payment or satisfaction he may be discharged without further leave (1). By other rules it has been further provided, that the person committed may, before he is delivered into the custody of a gaoler, pay to the bailiff the amount indorsed on the warrant, as that on the payment of which he is to be discharged, and thereupon is to be discharged by the bailiff forthwith (m). When, however, he has been delivered into the custody of a gaoler he can obtain his discharge upon payment of the before-mentioned amount into the foreign court, i. e. the court in the district of which he was arrested, and obtain his discharge on the certificate of such registrar (n), or if the gaoler thinks fit to receive it, he may pay the amount to him, together with the costs of sending the same by the gaoler by postoffice order to the court from which it issued (0).

CHAP. X.

payment of money levied.

Return of Warrant and Payment of Money levied.]— Return of The return of the execution, or what has been done under warrant, and the warrant of commitment, and payment of money levied under it, must be made by the high bailiff, in the same way as the return of writs of execution against the goods of a party. See ante, p. 161.

Fees on Execution.]-The court fees upon the execu- Fees on execution must be paid into court at the time of the issue of tion. the warrant of execution. These will be found unte,

p. 41.

Execution out of Jurisdiction.]—Where a warrant of Execution out commitment issues against a person who is out of the of jurisdiction. jurisdiction, it may be sent by the high bailiff of the home court to the registrar of the court within the jurisdiction of which the person is, in the same manner as a writ of execution against goods (p). If the person is apprehended, he must be forthwith conveyed in custody of the bailiff or officer apprehending him to the prison of the court within the jurisdiction of which he was apprehended, and kept therein for the time mentioned in the warrant of commitment, unless sooner discharged under the pro