2. Demand of Performance of Judgment.

[Title, &c., as usual.]

Take notice that [here state the matters constituting the fulfilment of the condition or contingency]: And the condition or contingency having been fulfilled, subject to or upon fulfilment of which the above-named plaintiff is entitled to the relief named in the judgment herein dated the day of, 19, now I [as solicitor for] the above-named plaintiff, hereby demand of you that you do -[here state the act or thing required by the judgment to be done]: And further take notice that if you do not within [insert reasonable time] comply with the said judgment, a copy whereof is hereunto annexed [annex a copy], I shall apply for an order for leave to issue execution thereon.

To the above-named defendant C. D.

Yours, &c., A. B.,
The above-named plaintiff,
for X. Y.,
Solicitor, &c.]

3. Affidavit in Support of Application.

66

[Title, &c., as usual; see post, “ Affidavits.”]

I, A. B., the above-named plaintiff, make oath and say as follows:1. On the day of—, 19—, I recovered judgment against the above-named C. D. in this action, by which judgment it was adjudged that [here set out the operative part of the judgment].

2. [Here state the facts showing that the condition or contingency has been fulfilled.]

3. On the day of —, 19—, I personally served the said C. D. with a copy of the said judgment, and with a demand in writing that he should comply with the said judgment, by delivering the said copy and demand to the said C. D. personally at [place of service]. A copy of the said demand is now produced and shown to me, and marked A. [exhibit a copy]. [State the service according to the fact.]

4. The said C. D. has not [here state that the defendant has not complied with the judgment], but has refused to do so.

5. The said judgment is still in force and wholly unsatisfied, and I am, as I am advised and believe, entitled to issue execution thereon.

Sworn [&c., as usual; see post," Affidavits"].

This affidavit is filed [&c., as usual].

[The affidavit, or the part of it relating to the service, may be made by the solicitor or his clerk; in which case it must be varied accordingly.]

Sub-section 3.-Leave to issue Execution after Death, &c., of Parties, or Assignment of Judgment (z).

1. Summons (a).

[Title, &c., as usual.]

Let all parties concerned [if the person against whom it is sought to issue execution is not an original party, add, and T. E., the executor of the abovenamed defendant C. D., now deceased (or as the case may require)] attend [&c., as usual] for an order that [name the party desirous of issuing the execution] be at liberty to issue execution against the said [or abovenamed] on the judgment obtained in this action, dated the

of

19-[conclude as usual].

[The order may be framed from the summons.]

2. Affulavit.

[Formal parts as usual; see post, “ Affidavits.”]

day

1. [State that the judgment has been recovered, and is in force and unsatisfied. See form ante, p. 454, No. 2, paragraphs 1 and 2.]

2. [State the change that has taken place in the parties, and show that the applicant is entitled to issue the execution, and that the party against whom it is sought to issue it, is liable to it.]

Sworn [&c., as usual; see post, "Affidavits"].

This affidavit is filed [&c., as usual.]

SECTION XIV.-STAYING EXECUTION (b).

Summons to stay Execution.

herein,

[Formal parts as usual in summons before Master] for an order that execution on the judgment herein, dated [or on the writ of tested] the day of, 19-, be stayed [on the ground that ]. [Add any further terms or relief required.]

[The application must be supported by an affidavit showing clearly the grounds on which it is made.]

(2) See Ord. XLII., r. 23, ante, p. 454, n. (u).

(a) See ante, p. 455, n. (x).

(b) By Ord. XLII., r. 27, “No proceeding by auditâ querelâ shall hereafter be used; but any party against whom judgment has been given may apply to the Court or a Judge for a stay of execution or other relief against such judgment, upon the ground of facts which have arisen too late to be pleaded; and the Court or Judge may give such relief and upon such terms as may be just."

Under this rule, where, after judgment is obtained, any arrangement is entered into that would make it inequitable to carry the judgment into effect, execution will be stayed by a Master at Chambers.

See also as to staying execution, Ord. XLII., r. 17, ante, p. 389, n. (b).

CHAPTER XVI.

ATTACHMENT OF DEBTS.

1. Summons and Order for Examination of Judgment Debtor as to
Debts due to him.

[See the forms, ante, pp. 452, 453.]

2. Affidavit in support of Ex parte Application for Attachment of Debts under R. S. C., Ord. XLV., r. 1 (a).

I, A. B., of, the above-named judgment creditor [or X. Y., of solicitor for the above-named judgment creditor], make oath and say as follows:-

made] in

1. By a judgment of this Court given [or an order of this action, and dated the day of, 19—, it was adjudged that I [or the above-named judgment creditor] should recover against the abovenamed judgment debtor, C. D. [or it was ordered that the above-named judgment debtor C. D. should pay to me (or the above-named judgment creditor)] the sum of £ [and costs to be taxed, and the said costs

(a) By Ord. XLV., r. 1, "The Court or a Judge may, upon the ex parte application of any person who has obtained a judgment or order for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment or order, and upon affidavit by himself or his solicitor stating that judgment has been recovered, or the order made, and that it is still unsatisfied, and to what amount, and that any other person is indebted to such debtor, and is within the jurisdiction, order that all debts owing or accruing from such third person (hereinafter called the garnishee) to such debtor shall be attached to answer the judgment or order; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court or a Judge or an officer of the Court, as such Court or Judge shall appoint, to show cause why he 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."

The above affidavit is framed from that given in R. S. C., App. B., No. 25. It must be made by the judgment creditor or his solicitor; but in the case of a company, the affidavit of the manager or secretary is generally accepted.

for

2. The said judgment [or order] still remains unsatisfied to the extent of £ [and interest thereon amounting to £] [and also of £ the said costs, and interest thereon amounting to £―].

3. [I am informed by in the county of

and verily believe, that (b)] G. G., of [name, place of abode, and description of the garnishee], is indebted to the said judgment debtor [in the sum of £, or thereabouts (or upwards)] [it is not necessary to state the amount of the garnishee's indebtedness (c), but in practice the amount is often stated. It is not necessary to specify any particular debt, and it is generally better to omit to do so (c.)]

4. The said G. G. is [or, in the case of a firm, carry on business (d)] within the jurisdiction of this Court.

Sworn [&c., as usual].

This affidavit is filed [&c., as usual].

3. Order upon Ex parte Application for Attachment of Debts (e).

It is ordered that all debts owing or accruing due from the abovenamed garnishee (e) to the above-named judgment debtor be attached to

(b) An affidavit of information and belief, stating the grounds thereof, is sufficient (Vinall v. De Pass, [1892] A. C. 90). The grounds of belief must be stated (Re Young, [1900] 2 Ch. 753).

(c) See Vinall v. De Pass, supra; De Pass v. Capital and Industries Corp., [1891] 1 Q. B. 216.

(d) By Ord. XLVIIIA. r. 9, “Debts owing from a firm carrying on business within the jurisdiction may be attached under Order XLV., although one or more members of such firm may be resident abroad; provided that any person having the control or management of the partnership business, or any member of the firm, within the jurisdiction is served with the garnishee order. An appearance by any member pursuant to an order shall be a sufficient appearance by the firm."

(e) This form is framed from that given in R. S. C., App. K., No. 39.

By R. S. C., Ord. XLV., r. 2, "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."

answer a judgment recovered against the said judgment debtor by the above-named judgment creditor in the High Court of Justice on the

and removed into the High Court of Justice] for the sum [or to answer an order made in the High Court of Justice by

dated the

day of

19-, ordering payment by the said judgment debtor to the above

named judgment creditor of the sum] of £

on which judgment [or order] the sum of £

£

£

[debt, and £- costs], remains [or the sum of

debt, and £- interest thereon, and the sum of £
interest thereon, remain] due and unpaid.

costs, and

And it is further ordered that the said garnishee attend the Master in Chambers, Central Office, Royal Courts of Justice, Strand, London, on -day, the day of 19—, at o'clock in the noon, on an application by the said judgment creditor that the said garnishee pay to the said judgment creditor the debt due from the said garnishee to the said judgment debtor, or so much thereof as may be sufficient to satisfy the said judgment [or the said order]. [And that the costs of this application (ƒ).] Dated the

be

day of

19-.

4. Order under R. S. C., Ord. XLV., r. 3, for Payment by Garnishee of the

the

Upon hearing day of

day of

Debt due from him (y).

[Title as in preceding form.]

, and upon reading the affidavit of

filed the

, 19, and the order nisi made herein [by], dated 19-, whereby it was ordered that all debts owing or accruing due from the above-named garnishee to the above-named judgment debtor should be attached to answer [&c., as in the order nisi, e.g.] a judgment recovered against the said judgment debtor by the abovenamed judgment creditor in the High Court of Justice on the

day of

(f) By R. S. C., Ord. XLV., rr. 9, 9A., "The costs of any application for an attachment of debts, and of any proceedings arising from or incidental to such application, shall be in the discretion of the Court or a Judge; and as regards the costs of the judgment creditor shall, unless otherwise directed, be retained out of the money received by him under the garnishee order, and in priority to the amount of the judgment debt."

(g) By Ord. XLV., r. 3, "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."