20. Execution (u). [The ordinary forms may be used, the name of the registry being added to the title.] (u) Execution and Taxation of Costs on Judgment.]—By R. S. C., Ord. XXXV., r. 4, "Where a cause or matter is proceeding in a district registry all writs of execution for enforcing any judgment or order therein, and all summonses under the Debtors Act, 1869, shall issue from the district registry, unless the Court or a Judge shall otherwise direct. Where final judgment is entered in the district registry costs shall be taxed in such registry unless the Court or a judge shall otherwise order." PART XIV. ARREST UNDER THE DEBTORS ACT, 1869, s. 6 (a). 1. Affidavit by Plaintiff to obtain Arrest in Ordinary Actions (b). I, A. B., of [Title, &c., of action as usual (c).] make oath and say as follows: [the above-named (intended) plaintiff) (d), 1. C. D. (e) [the above-named (intended) defendant] is justly and truly (a) By the Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 6, " After the commencement of this Act a person shall not be arrested upon mesne process in any action. "Where the plaintiff in any action in any of Her Majesty's superior Courts of law at Westminster, in which, if brought before the commencement of this Act, the defendant would have been liable to arrest, proves at any time before final judgment, by evidence on oath, to the satisfaction of a Judge of one of those Courts, that the plaintiff has good cause of action against the defendant to the amount of £50 or upwards. and that there is probable cause for believing that the defendant is about to quit England unless he be apprehended, and that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action, such Judge may, in the prescribed manner, order such defendant to be arrested and imprisoned for a period not exceeding six months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in the action, that he will not go out of England without leave of the Court. "Where the action is for a penalty or sum in the nature of a penalty other than a penalty in respect of any contract, it shall not be necessary to prove that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action, and the security given, instead of being that the defendant will not go out of England, shall be to the effect that any sum recovered against the defendant in the action shall be paid, or that the defendant shall be rendered to prison." As to the cases in which the defendant was, before the commencement of this Act, liable to arrest, see 2 Pract. 14th ed. 1450 et seq. (b) For the form to be used if the action is for a penalty other than a penalty in respect of a contract, see form No. 2, post. As to affidavits in general, see ante, p. 744. As to this particular affidavit, see generally 2 Pract. 14th ed. 1464 et seq. (c) The application for the order cannot be made until after the writ is issued (Brooke v. Snell, 8 Dowl. 370; Williams v. Griffith, 3 Ex. 584). The affidavit, if sworn after writ issued, must be intituled in the action (R. S. C., Ord. XXXVIII., r. 2, ante, p. 744; Schletter v. Cohen, 7 M. & W. 389; Ball v. Stanley, 6 Id. 399, per Alderson, B.). If sworn before writ issued, it should not be intituled in any action (Hollis v. Brandon, 1 B. & P. 36; Green v. Redshaw, Id. 227); but where an order (d), (e) See notes (d), (e), p. 773. indebted to me in, and I have a good cause of action against him for, [or the amount of £50 and upwards, or an amount exceeding £50] (ƒ), for [here state positively the cause of action upon which the arrest is to be made, for instance:] for goods sold and delivered by me to the said C. D. 2. [Here state the facts which show that the defendant is about to quit England (g).] 3. For the reasons aforesaid, I verily believe that the said C. D. is about to quit England unless he be forthwith apprehended (). 4. The absence of the said C. D. from England will materially prejudice me in the prosecution of my action (i). 5. I require the presence of the said C. D. for the purposes of evidence to prove [the said sale and delivery of the said goods to the said C. D., &c., stating the facts which the defendant is required to prove, and showing that his absence will prejudice the plaintiff. If the defendant agrees to admit the facts, no order will be made](i). was made upon an affidavit, sworn before writ issued, but intituled in the action, the Court refused to set the order aside (Hargreaves v. Hayes, 24 L. J. Q. B. 281 ; 5 E. & B. 272); and probably the affidavit, if sworn before writ issued, should now be intituled "In the matter of the Debtors Act, 1869, section 6, And in the matter of an intended action between A. B., Plaintiff, and C. D., Defendant" (cf. Young v. Brassey, 1 Ch. D. 277). As to swearing the affidavit before writ issued, see King v. The Queen, 14 Q. B. 31; 1 Pract. 14th ed. 1476. (d) The deponent's true place of abode and description must be stated (R. S. C., Ord. XXXVIII., r. 8, ante, p. 744). For an irregularity in this respect the order might be set aside (Jarrett v. Dillon, 1 East, 18). The affidavit need not be made by the plaintiff. As to who may make it, see 2 Pract. 14th ed. 1476. (e) As a rule, the defendant's christian and surname must be stated in full (Waters v. Joyce, 1 D. & R. 150). (f) The plaintiff must show to the satisfaction of the Judge that he has a good cause of action against the defendant to the amount of £50 or upwards (Debtors Act, 1869, s. 6, supra). As to the mode of stating the cause of action, see 1 Pract. 14th ed. 1465 et seq. (g) The Debtors Act, 1869, s. 6 (supra), requires the plaintiff to show to the satisfaction of the Judge that there is probable cause for believing that the defendant is about to quit England unless he be apprehended. The affidavit for this purpose must set forth the circumstances, in order that the Judge may determine whether there is such probable cause (Bateman v. Dunn, 7 Dowl. 105; 5 Bing. N. C. 49; Harvey v. O'Meara, 7 Dowl. 725). See further 1 Pract. 14th ed. 1474. As to what intended absence from England is sufficient to warrant an arrest, see 1 Pract. 14th ed. 1475. (h) The affidavit need not in express terms state that the defendant is about to quit England "unless he be forthwith apprehended" (Hargreaves v. Hayes, 5 El. & Bl. 272; 24 L. J. Q. B. 281; but see Bateman v. Dunn, 7 Dowl. 105; 5 Bing. N. C. 49). (i) The Debtors Act, s. 6 (supra), requires the plaintiff in all actions (except where the claim is for a penalty other than a penalty in respect of a contract) to show to the satisfaction of the Judge that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action. In order to do this the plaintiff must show that he requires the defendant for the purpose of giving evidence either by way of discovery or vivâ voce, as in this case only can the plaintiff 6. I have caused [or intend forthwith to cause] a writ of summons to be sued out of this Honourable Court at my suit against the abovenamed defendant for the said cause of action mentioned in paragraph 1 hereof. [If the affidavit is sworn before the issuing of the writ, there should be another affidavit, made before applying for an order for the arrest, showing that the writ of summons has been issued. See form No. 3, post.] Sworn [&c., as usual; see ante, "Affidavits"]. This affidavit is filed on behalf of the plaintiff. 2. The like, where the Action is for a Penalty, or Sum in the Nature of a Penalty, other than a Penalty in respect of a Contract (k). [Title, &c., of action as usual.] I, A. B., of [&c., as in form No. 1, supra]. [here describe the 1. After the coming into operation of the statute Act by its short title or by the description prefixed to it] the above-named defendant C. D. did [here describe the acts done by the defendant showing that he has incurred the penalty], and thereby the defendant incurred under the said statute penalties of each [stating the penalties incurred]. 2. I have commenced this [or I intended forthwith to commence an] action [on behalf of our Lord the King as well as on my own behalf] for the recovery of the said penalties. 3 and 4. [As in paragraphs 2 and 3 of form No. 1, supra.] 5. [As in paragraph 6 of form No. 1, supra.] Sworn [&c., as usual; see ante, "Affidavits"]. This affidavit is filed on behalf of the plaintiff. be prejudiced within the meaning of the section (see Day's C. L. P. Acts, 4th ed. 407; see Yorkshire Engine Co., Limited v. Wright, 21 W. R. 15; Hume v. Druyff, L. R. 8 Exch. 214). And the affidavit should state distinctly what the defendant is required to prove (Comedy Opera Co. v. Carte, W. N. 1879, 210). (k) See the form in Tidd's Forms, ed. 1838, 83. The Debtors Act, 1869, s. 6 (supra), provides that where the action is for a penalty, or sum in nature of a penalty, other than a penalty in respect of any contract, it shall be unnecessary to show that the defendant's absence will materially prejudice the plaintiff. Under the 1 & 2 Vict. c. 110, the defendant could not be held to bail in an action on a penal statute unless the statute expressly authorized an arrest (see R. v. Rebord, 3 Burr. 1569; Davis v. Mazzinghi, 1 T. R. 705; Holland v. Bothmar, 4 T. R. 228; R. v. Horne, Id. 349; Goodwin v. Parry, Id. 577); but in actions on remedial statutes, as on 9 Anne, c. 14, by the loser at play against the winner (Turner v. Warren, 2 Str. 1079; Andr. 70), or on 4 Geo. 2, c. 28, for double rent for holding over (Wheeler v. Copeland, 5 T. R. 364), or the like, he might. 3. Separate Affidavit that a Writ of Summons has been issued (1). I, E. F., of clerk to G. H., of the same place, solicitor in this action for the above-named plaintiff, make oath and say that on the day of last [or instant], I, as clerk to the said G. H., caused to be sued out of the Central Office of the Supreme Court a writ of summons in this action, at the suit of the above-named plaintiff, against the above-named defendant. [The said writ is now produced and shown to me, marked A.] Sworn [&c., see ante, "Affidavits"] This affidavit is filed on behalf of the plaintiff. 4. Order for Arrest in Ordinary Actions (m). [Title, &c., of action as usual.] Upon hearing [the solicitor for the plaintiff], and upon reading the affidavit of [the plaintiff] A. B. filed the -]: day of 19- [and It is ordered that the defendant C. D. be arrested and imprisoned for the term of from the date of his arrest, including the day of such date, unless and until he shall sooner deposit in Court the sum of £or give to the plaintiff a bond executed by him and two (2) sufficient sureties in the penalty of £- (0), or some other security satisfactory to the plaintiff, that he the defendant will not go out of England without the leave of the Court. do within one calendar And it is further ordered that the sheriff of month from the date hereof, including the day of such date, and not afterwards, take the defendant for the purpose aforesaid, if he shall be found in the said sheriff's bailiwick. (1) This is only required where the affidavit by the plaintiff is made before the issue of the writ; see ante, p. 772, n. (r). (m) By R. S. C., Ord. LXIX., r. 1, "An order to arrest under the 6th section of the Debtors Act, 1869 (which shall be in the form No. 31 in Appendix K., with such variations as circumstances may require), shall be made upon affidavit and ex parte ; but the defendant may at any time after arrest apply to the Court or a Judge to rescind or vary the order or to be discharged from custody, or for such other relief as may be just." The above form is that referred to in this Rule. By r. 5, "Unless otherwise ordered, the costs of and incidental to an order to arrest shall be costs in the cause." As to the application by the defendant to rescind or vary the order or to obtain his discharge, see post. (n) With leave of a Judge there may be more than two sureties. (0) When the action is for a penalty, or sum in the nature of a penalty, other than a penalty in respect of any contract, this must be sufficient to include the probable costs of the action. In other cases the sum deposited or secured is usually the amount sued for. |