CHAPTER III.

EXECUTION ON ORDERS (a).

1. Fieri Facias on an Order for Payment of Money (b).

[Title, &c., as usual; see form No. 2, ante, p. 390.]

Edward the Seventh, by the Grace of God, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, Defender of the Faith, to the sheriff of

greeting: We

day of

command you that of the goods and chattels of C. D. in your bailiwick you cause to be made the sum of £ and also interest thereon at the rate of £- per centum per annum from the 19- [day on which order was made, or on which money or from which interest was ordered to be paid, as the case may be], which said sum of money and interest were lately before us in our High Court of Justice in a certain action [or certain actions, as the case may be] wherein A. B. is plaintiff and C. D. is defendant [or in a certain matter there depending, intituled "In the matter of E. F.," or as the case may be], by an order of our said Court bearing date the day of, 19—, ordered to be paid by the said C. D. to A. B. [according to the terms of the order],* and that you have that money and interest before us in our said Court immediately after the execution hereof, to be paid to the said A. B. in pursuance of the said order. And in what manner [&c., conclude, and also indorse, as usual, ante, p. 391].

2. Fieri Facias on an Order for Payment of Money and Costs. The preceding form may be used, but the following words must be inserted after the asterisk, *, viz. :-Together with certain costs in the said order mentioned, and which costs have been taxed and allowed by one of the taxing officers of our said Court at the sum of £certificate of the said taxing officer, dated the that of the goods and chattels of the said C. D. in your bailiwick you further cause to be made the said sum of £

as appears by the day of, 19—, and

(amount of costs), together

with interest thereon at the rate of £4 per centum per annum from the 19- [day on which order was made, or from which interest

day of

was ordered to run (c)].

(a) By R. S. C., Ord. XLII., r. 24, "Every order of the Court or a Judge in any cause or matter, may be enforced against all parties bound thereby, in the same manner as a judgment to the same effect."

(b) This form is framed from that prescribed by R. S. C., App. H., No. 1.

(c) See R. S. C., Ord. XLII., r. 16, ante, p. 392, n. (0); Taylor v. Roe, [1894] 1 Ch. 413.

3. Fieri Facias on an Order for Payment of Costs only (d).

[Title, &c., as usual, ante, p. 390.]

Edward the Seventh [&c., as usual, ante, p. 390], to the sheriff of

:

greeting We command you that of the goods and chattels of C. D. in your bailiwick you cause to be made the sum of £- for certain costs which, by an order of our High Court of Justice dated the

day of

19—, were ordered to be paid by the said C. D. to A. B., and which have been taxed and allowed at the said sum, and interest on the said sum at the rate of £4 per centum per annum from the day of —, 19-[day on which order was made], and that you have the said sum and interest before us in our said Court immediately after the execution hereof, to be rendered to the said A. B. And in what manner [&c., conclude, and also indorse, as usual, ante, p. 391].

4. Elegit on an Order for Payment of Money and Costs (e).

[Title, &c., as usual, ante, p. 390.]

Edward the Seventh [&c., as usual, ante, p. 390], to the sheriff of greeting: Whereas lately in our High Court of Justice in a certain action [or certain actions, as the case may be] there depending, wherein A. B. is plaintiff and C. D. defendant [or in a certain matter there depending, intituled In the matter of E. F.," as the case may be] by an order of our said Court made in the said action [or matter, as the case may be], and day of

bearing date the
pay unto A. B.
the rate of £-
[date of order].

19-, it was ordered that C. D. should

together with interest thereon after

per centum per annum from the

day of 19

[If the order directs payment of costs proceed, together also

with certain costs as in the said order mentioned, and which costs have

been taxed and allowed by Court, at the sum of £taxing officer, dated the

as appears by the certificate of the said day of, 19-]

And afterwards the said A. B. came into our said Court, and, according to the statute in such case made and provided, chose to be delivered to him all such lands, tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick, as the said C. D., or any one in trust for him, was seised or possessed of on the day of, in the year of our Lord [day

on which order was made], or at any time afterwards, or over which the

(d) This form is given in R. S. C., App. H., No. 2. The writ must be so moulded as to follow the substance of the order.

(e) This form is framed from that given in R. S. C., App. H., No. 3, which needs amending (as in the text) now that the writ of elegit does not extend to goods (46 & 47 Vict. c. 52, s. 146 (1)).

said C. D. on the said day of 19-, or at any time afterwards had any disposing power which he might without the assent of any other person exercise for his own benefit, to hold the said lands, tenements, rectories, tithes, rents and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said sum [or said two several sums] of £- [and £], together with interest upon the said sum [or sums] at the rate of £- per centum per annum from the said day of, 19- [date of order], shall have been levied. Therefore we command you that without delay you cause to be delivered to the said A. B., by a reasonable price and extent, all such lands and tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick as the said C. D., or any person or persons in trust for him, was or were seised or possessed of on the said day of, 19— [date of order], or at any time afterwards, or over which the said C. D. on the said of, 19-[date of order], or at any time afterwards, had any disposing power which he might, without the assent of any other person, exercise for his own benefit, to hold the said lands, tenements, rectories, tithes, rents and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns until the said sum [or two several sums] of £- [and £ -], together with interest as aforesaid, shall have been levied. And in what manner you shall have executed this our writ make appear to us in our Court aforesaid immediately after the execution thereof, under your seals, and the seals of those by whose oath you shall make the said extent and appraisement. And have there then this writ. Witness [&c., conclude, and also indorse, as in form No. 2, ante, p. 391].

day

5. Capias ad Satisfaciendum on an Order for Payment of Money or Costs.

The forms of writ, ante, pp. 427 et seq., may be easily adapted to meet this case should it be necessary. Since the Debtors Act, 1869 (s. 4, sub-s. 4), a ca. sa. on an order for payment of money or costs can only issue in the case of a solicitor who has been ordered to pay money or costs in his character of an officer of the Court.

CHAPTER IV.

AFFIDAVITS (a).

1. General Form of Affidavit when sworn in an Action.

....Defendant (b).

C. D. [or C. D. and others] I (c), W. W., of (d) [state deponent's true place of abode and description; unless he be a party to the action, in which case it will generally

(a) Affidavits.]-As to affidavits, see generally 1 Pract. 14th ed. 453 et seq.; Stringer's "Oaths and Affirmations."

By R. S. C., Ord. XXXVIII., r. 1, " Upon any motion, petition, or summons evidence may be given by affidavit; but the Court or a Judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit." As to giving evidence of any particular facts by affidavit at the trial of an action, see Ord. XXXVII., r. 1, ante, p. 288. As to "trial on affidavit," see Ord. XXXVIII., rr. 25 to 30.

By Ord. LXVI., r. 4, " Any affidavit may be sworn to either in print or in manuscript, or partly in print and partly in manuscript."

(b) Title of Cause or Matter.]-By Ord. XXXVIII., r. 2, “ Every affidavit shall be intituled in the cause or matter in which it is sworn; but in every case in which there are more than one plaintiff or defendant, it shall be sufficient to state the full name of the first plaintiff or defendant respectively, and that there are other plaintiffs or defendants, as the case may be; and the costs occasioned by any unnecessary prolixity in any such title shall be disallowed by the taxing officer."

(c) Contents of Affidavit.]-By Ord. XXXVIII., r. 7," Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. Every affidavit shall be written or printed book wise. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this Rule."

(d) Deponent's Description, &c.]-By Ord. XXXVIII., r. 8, "Every affidavit shall state the description and true place of abode of the deponent." This statement forms part of the matter sworn to (Blaiberg v. Parke, 10 Q. B. D. 90).

An affidavit which does not comply with this Rule will generally be rejected (Hyde v. Hyde, 59 L. T. 523). The omission to state the deponent's description has been held to be an irregularity capable of being waived (Ex parte King, L. R. 7 C. P. 74).

The description must be a true one (Collins v. Goodyer, 2 B. & C. 563; 4 D. & R. 44 ; see Hewer v. Cox, 30 L. J. Q. B. 73). A person must not describe himself as “late of," where he has at the time another place of residence (Sedley v. White, 11 East, 528).

suffice to say (e): I, W. W., the above-named plaintiff (or defendant)], make oath and say (f) as follows :

1. On [&c., here state the facts clearly and concisely (g). For forms applicable to particular cases see the Index].

A description of the deponent as "of the city of London, merchant" (Vaissier v. Alderson, 3 M. & S. 165); or as "of Bath, in the county of Somerset, Esquire' (Coppin v. Potter, 4 M. & Sc. 272; 2 Dowl. 785); or as "of Kennington, in the county of Surrey" (Wilton v. Chambers, 1 H. & W. 116; see Hunt's bail, 4 Dowl. 272); or as "of Lawrence Pountney, in the city of London” (Miller v. Miller, 2 Sc. 116); or as "late of Tyrone, in the county of Tyrone, in Ireland, but now in Dublin Castle' (Stuart v. Gaveran, 1 H. & W. 699), is sufficient. Where a foreigner, who had come to this country merely for temporary purposes, described himself as of his place of residence abroad, it was held sufficient (Bouhet v. Kittoe, 3 East, 154). A solicitor's clerk may describe himself as of the place of business of his employer (Alexander v. Milton, 1 Dowl. 570; Strike v. Blanchard, 5 Dowl. 216; Allen v. Thompson, 2 Jur. N. S. 451; see Winch v. Williams, 21 L. J. C. P. 216; 12 C. B. 416). The description, "A. B., Stock Exchange, stockbroker," has been held insufficient (Re Levy, 37 W. R. 396).

The deponent's addition must, except when he is a party in the action, be stated. It is sufficient if the deponent describe himself as "merchant" (Vaissier v. Alderson, 3 M. & S. 165), or "manufacturer" (Smith v. Younger, 3 B. & P. 550), or "managing clerk to," &c. (per Littledale, J., in Graves v. Browning, 6 Ad. & El. 805; Simpson v. Drummond, Dowl. 473); if the word "to" be omitted, it will be insufficient (Shakspear v. Willan, 19 L. J. Ex. 184); or "agent and collector to A. B. (the plaintiff) an hotel keeper" (Short v. Campbell, 3 Dowl. 487), "solicitor" or "agent for the above-named plaintiff in the cause" (Luxford v. Groombridge, 2 Dowl. N. S. 332; Matthewson v. Baistow, 3 D. & L. 327), or "of No. 21, Tokenhouse Yard, Lothbury, in the city of London, clerk to C. R., of the same place," without stating the profession of C. R. (Cooper v. Folkes, 1 M. & G. 942), or "late of the city of W., victualler, but now of," without any further addition (Angel v. Ihler, 5 M. & W. 163). But it will not suffice to say "assessor" (Nathan v. Cohen, 3 Dowl. 370). Nor is "acting as managing clerk to," &c. (Graves v. Browning, 6 A. & E. 805), or "articled clerk" (R. v. Reere, 4 Q. B. 211), without saying to whom, or in what profession, a sufficient description. As to the description "gentleman," see Re Dodsworth, [1891] 1 Ch. 657. As a rule, this vague description should be avoided.

Persons other than the deponent need not necessarily be described by any addition (Waters v. Joyce, 1 D. & R. 150); but their christian and surname should be given when practicable (see Reynolds v. Hankin, 4 B. & A. 536; but see Howell v. Coleman, 2 B. & P. 466).

(e) If the deponent is a party to the action, the description of him as such, without stating his place of abode, is, notwithstanding Ord. XXXVIII., r. 8, supra, n. (d), usually accepted as sufficient, in accordance with the former practice (see 1 Pract. 14th ed. 459).

(ƒ) If the word “oath” be omitted, the affidavit will be insufficient (Allen v. Taylor, L. R. 10 Eq. 52; Oliver v. Price, 3 Dowl. 261; Doe v. Clark, 2 Dowl. N. S. 393) ; and it seems that it would be so, if "said" were substituted for "say" (Howorth v. Hubbersty, 3 Dowl. 455). As to the effect of an irregularity in this respect, cp. Ex parte Torkington, L. R. 9 Ch. 298.

(g) By R. S. C., Ord. XXXVIII., r. 3, " Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same."