CHAPTER XVIII. PROCEEDINGS TO ENFORCE PAYMENT, ETC. From the preceding Chapters it will have been seen that for the purpose of obtaining payment of any money due to the Company before the order to wind up, or of calls made after such order, or for the purpose of obtaining possession of any property belonging to the Company, an order must be made for payment or delivery of the same, as the case may be. We have here to consider how such an order may be enforced in the event of it not being obeyed. It is enacted as follows by sect. 120 of the Act. 120. All orders made by the Court of Chancery in Power to enEngland or Ireland under this Act may be enforced in the force orders. same manner in which orders of such Court of Chancery made in any suit pending therein may be enforced, and for the purposes of this part of this Act the Court of the Vice Warden of the Stannaries shall, in addition to its ordinary powers, have the same power of enforcing any orders made by it as the Court of Chancery in England has in relation to matters within the jurisdiction of such Court, and for the last mentioned purposes the jurisdiction of the Vice Warden of the Stannaries shall be deemed to be coextensive in local limits with the jurisdiction of the Court of Chancery in England. The proceeding to enforce an order of the Court of Chancery is as follows. As the order for payment of money or calls, Service. or delivery of property, directs such payment or delivery within a limited time after service, or by a day certain, a copy thereof should be served personally on the person who is required to obey the same, with the following indorsement thereon: "If you, the within named A. B., neglect to obey this order by the time therein limited, you will be liable to be arrested under a writ of attachment issued out of the High Court of Chancery, or by the Serjeant at Arms attending the same Court, and also be liable to have your estate sequestered for the purpose of compelling you to obey the same order." (Consolidated Order 23, rule 10.) No demand of payment or delivery however is necessary (Consolidated Order 29, rule 1.) Should the official liquidator be unable to serve the order by reason of the party on whom it is made avoiding service, substituted service on his solicitor, or on some other person, will be directed by the Court upon an ex parte application supported by a satisfactory affidavit. (See Morgan's Chancery Acts and Orders, p. 510.) Execution is issued on proof of service of the order, and of nonpayment of the amount ordered to be paid: see Forms. There are three ways of enforcing a money order. 1st. By fi. fa. 2nd. By elegit; and 3rd. By attachment and sequestration. Any order which may not be for payment of money, or the attendance of a wit ness to be examined, may be enforced by attachment and sequestration. 1st. and 2nd. By fi. fa. or elegit. In order to enforce a money order after it is properly served, and after the expiration of one month from the entry of the order, the date of which will be marked by the entry clerk in the Registrar's office, a fi. fa. may be issued directed to the sheriff, authorizing him to levy on the goods of the debtor for the amount due, or an elegit may be issued directed to the sheriff to seize the lands or houses, &c., of the debtor until the sum for which the writ is marked is levied. If upon the return of the fi. fa. it appears that the sheriff has seized but not sold the goods, a writ of venditioni exponas may be issued. (See Consolidated Order 29, rules 6 to 10, and Forms of writ in Schedules F. and G. to such Order.) In the case of a beneficed clerk without goods or chattels, or any lay fee, a writ of fieri facias de bonis ecclesiasticis and of sequestrari facias, directed to the Bishop, may be issued. (Consolidated Order 29, rules 11, 12 and 13.) 3rd. By attachment and sequestration. Fi. fa. or elegit. Attachment or sequestra Upon an affidavit of personal service of the tion. copy order with the memorandum indorsed thereon, or of the subpoena or summons for the attendance of a witness within due time, and of nonpayment or non-attendance, a writ of attachment against the person upon whom the order is served Peer. Married woman. may be issued, and in case the person taken or detained remain in custody without obeying the order, upon the sheriff returning that he is. so taken or detained, or in case the sheriff should return non est inventus, a commission of sequestration may be issued. In either case also, an order for the Serjeant at Arms to arrest the party may be issued. (Consolidated Order 29, rule 3.) Where a party was abroad, the Court allowed a sequestration to issue without a writ of attachment preceding it. (Re East of England Bank, V. C, Kindersley, 13 W. R. 128.) Upon due service of an order for delivery of possession, a writ of assistance may be issued. (Consolidated Order 29, rule 5; see also Consolidated Order 30.) If a person having privilege of peerage or of Parliament does not obey an order duly served on him with the indorsement, an order for sequestration nisi must be obtained on a motion as of course, and a copy of the order served personally on the person privileged. If it cannot be served, the Court upon motion, of which notice must be given, may allow substituted service. If no cause is shewn within the time fixed by the order, it is made absolute upon a motion as of course, and the writ of sequestration issues. No process can be issued against a married woman; but if she has separate estate proceedings must be taken in Chancery to charge it with payment of the amount due from her. If she has not separate estate the husband is generally liable. The writs when returned by the sheriff or Return. bishop, are to be delivered to the solicitor by whom they were respectively sued out, and thereupon filed in the Record and Writ Clerks' Office. orders else Any order made in England may be enforced Enforcing in Scotland or Ireland, and orders made in the where. latter places may be enforced in England. See the following sections. 122. Any order made by the Court in England for or in the course of the winding up of a Company under this Act shall be enforced in Scotland and Ireland in the Courts that would respectively have had jurisdiction in respect of such Company if the registered office of the Company had been situate in Scotland or Ireland, and in the same manner in all respects as if such order had been made by the Courts that are hereby required to enforce the same; and in like manner orders, interlocutors, and decrees made by the Court in Scotland for or in the course of the winding up of a Company shall be enforced in England and Ireland, and orders made by the Court in Ireland for or in the course of winding up a Company shall be enforced in England and Scotland by the Courts which would respectively have had jurisdiction in the matter of such Company if the registered office of the Company were situate in the division of the United Kingdom where the order is required to be enforced, and in the same manner in all respects as, if such order had been made by the Court required to enforce the same in the case of a Company within its own jurisdiction. ing with 123. Where any order, interlocutor, or decree made by Mode of deal one Court is required to be enforced by another Court, orders to be as hereinbefore provided, an office copy of the order, inter- enforced locutor, or decree so made shall be produced to the proper by other officer of the Court required to enforce the same, and the production of such office copy shall be sufficient evidence I Courts. |