No. IV.

FINAL ORDER.

This cause coming this present day to be heard before the Right Honourable &c. on the special matter of the report made in this cause, by Mr. T. B. one &c. dated the 5th day of May last, in the presence of counsel learned, for Francis Powell and for the plaintiffs. And the matter in question being, whether the said Francis Powell is entitled to take the rents and profits of the lands comprised in a mortgage in the said report mentioned, until he is repaid the sum of £

or not.

And the said Master, by his report, certifying that &c. Upon debate of the matter, and hearing of the said report, an order dated &c. and affidavit of the said F. P. and the proofs taken in the cause read, and what was alleged by counsel for the said parties, his Lordship doth declare, that the said Mr. P. hath a just right and title to take the rents and profits of the lands and premises contained in the said mortgage, for the security of the principal and interest due on his mortgage, until he is repaid the same. And it is ordered, that the plaintiffs do pay unto the said P. his costs, from the time of the order of the 10th day of February last, made in this cause, to be taxed by the said Master. Cooper v. Thornton, L. C. 22d July, 1738. Reg. Lib. A. 1737. fol. 629. S. C. 1 Dick. 73.

NOTE.
Final Order.

Upon the Master's report a final order will be made. Cooper v. Thornton, supra. Hamlyn v. Ley, 1 Dick. 94. S. C. 3 Swan. 301. note. Fawcet v. Fothergill, 1 Dick. 19. S. C. 2 Dick. 542. Bowles v. Parsons, 1 Dick. 142. Hunt v. Priest, 2 Dick. 540. Harr. 144. Gilb. For. Rom. 80.

And see

If the right of the party is established, he will be entitled to costs. Cooper v. Thornton, supra. Hamlyn v. Ley, supra. And see Harr.

And he may obtain a reference, with a view to damages. Copeland v. Mape, 2 Ba. & Be. 67.

No. V.

SHORT ORDER FOR PAYMENT.

Upon opening of the matter this day unto the Court by Mr. H. of counsel for the relators, it was alleged, that by an order, dated the 4th day of August, 1814, it was referred &c. and that what the said Master should certify &c. should be paid by the defendant to the relators, the Right Honourable &c. That in pursuance of the said order the said Master made his report, dated the 31st day of January 1815, and thereby certified that &c. and that there was due from the defendant &c. and there not being any time limited by the above order for the defendant to pay what should be reported due from him, the relators cannot proceed to bring him into contempt; it was prayed that &c. Whereupon, and upon hearing an affidavit of notice of this motion read, this Court doth order, that the defendant, Giles Bailey Bennett, do, within three weeks from this time, pay the sum of £ to Sir Nathaniel Duckinfield Baronet, one of the trustees of the charity in the pleadings mentioned. Attorney-General v. Bennet, V. C. 7th March, 1815, Reg. Lib. A. 1814. fol. 409. For like orders. See Usual Directions, No. IX. ante.

NOTE.

Short Process.

Instead of going through the whole process by writ of execution, attachment &c. it became the practice, upon service of a copy of the decree and non-compliance, to order that the party should stand committed. See Gilb. For. Rom. 84. 86. 171.200.

The commitment was to the Warden of the Fleet, and upon his return the Court ordered a sequestration. Gilb. For. Rom. 85.

But by an order of the 13th May, 1721, Beames, 322. the party was to be taken by the Serjeant at Arms. And see Ex parte Jephson, Prec. in Ch. 549. And upon the return of the Serjeant at Arms a sequestration was ordered. See Sequestration, No. I. Note, ante.

But this practice has only been adopted in particular cases. See Mode of compelling Payment by Party, infra. Mode of compelling Payment of Costs between Party and Party, infra. Mode of com

E E

pelling Production, No. VI. post. Mode of compelling a Party to put in Examination, No. VII. post. And, except in the two latter cases, it has not superseded the ordinary process.

It has also been adopted in the case of orders between persons not parties to the suit. See No. XIII. and Note, post.

And in the case of non-compliance with an injunction. See No. XIV. Note, post.

Mode of compelling Payment or Transfer by Party.

A short order may be obtained for payment or transfer within a limited time. Attorney-General v. Bennett, supra. And see 1 Turn. Pract. 97. 244. 324. 623. Rider v. Kidder, 12 Ves. 202. Collins v. Crumpe, 3 Mad. 390. And see Writ of Execution, No. I. Note,

ante.

This may be enforced, by a writ of execution and the subsesequent processes. See 1 Turn. Pract. supra. Rider v. Kidder, supra. Collins v. Crumpe, supra. And see Ordinary Process, No. I. Note, ante.

Whether, upon service of the order and default, an order may be obtained, that the party may stand committed; Q. See Short Process, supra.

In the former case the writ of execution must be served within the time limited. See 1 Turn. Pract. 97. 244. 624.

Where this is not done, another order may be obtained for payment within a limited time. For further order. See Hand's Pract. 64. Or the time may be enlarged. Farrow v. White, 1 J. & W.645. See Hand's Pract. 66.

For order for enlarging time by consent. Where money is directed to be paid into court within a limited time, and is not paid in by that time, the Accountant-General will not receive it without a further order. See 1 Turn. Pract. 325.

For further order. See Hand's Pract. 66.

And see Direction for Payment into Court. Usual Directions, No. X. ante.

Formerly the writ of execution directed payment to the plaintiff or the bearer. See Short Writ of Execution, Curs. Canc. 375. App. to Reg. Brev. 46. And see Gilb. For. Rom. 102. But where the order is for payment to the party, if the writ of execution is not served by the party himself, the person by whom it is served must have a power of attorney from the party to receive it. Harr. 331. Wyat, P. R. 205. 1 Turn's Pract. 623. And see Decrees respecting Mortgages, No. III. ante.

Otherwise where the party absconds, and the writ is served on the Clerk in Court. Wyatt, P. R. 207.

Whether, upon default of payment, the party may not be compelled to pay interest; Q. See Collins v. Crumpe, 3 Mad. 391.

note.

It is the practice in Ireland to direct the payment of the sum at a certain day; and then in case of non-payment at that day, interest to accrue from the time appointed. Hamilton v. Houghton, 2 Bligh, 191. 186.

Where an order is obtained to pay money into the Bank at a given time, and is not acted upon, the Court will inquire whether there has been any former order; and if there has, will make the party shew cause why he should not pay interest. Higgins v.

8 Ves. 382.

The like process may be resorted to, to compel the performance of an order upon a party to execute a recognizance. See De Manneville v. De Manneville, 12 Ves. 203.

Mode of compelling Payment of Costs between Party and Party. Upon the Master's certificate of the amount, a subpoena for payment issues without order. See Beames on Costs, 249.

For certificates. See Hand's Pract. 269. 270.

For writ of subpoena for costs. See Harr. 194.

Upon affidavit of service and default, an attachment issues without order, and the subsequent process to a sequestration. Beames on Costs, supra. Pope v. Ward, 1 Cox, 194.

Whether upon default of payment an order may be obtained that the party may pay within a given time or stand committed, Q. See 1 Newl. Pract. 409. Beames on Costs, 248. note.

The subpoena should be served personally, but if the party absconds, an order may be obtained that service upon his Clerk in Court, or at his last place of abode, may be sufficient. Wyatt P. R. 406.

The Clerk in Court being dead, service on the solicitor of the party, and at his last place of abode, was ordered to be sufficient.. Tyssen v. Ward, 1 Dick. 166.

The party serving the subpoena if not the party to whom payment is directed to be made, must have a power of attorney from him to receive it. Wyatt, P. R. 406.

Where a debt or legacy and costs are reported to be due and ordered to be paid to the same person, a writ of execution will cover the costs as well as the legacy or debt, Beames on Costs, 249.

The following propositions on this subject are among those subjoined to the Chancery Report :

Prop. 148. That upon all orders for payment of costs or where a party is entitled to costs according to the course of the Court, there the party to pay the costs shall at the same time also pay the further costs occasioned by the process to enforce the payment of the costs; the amount of such further costs being certified by the Clerk in Court of the party to receive the costs.

No. VI.

ORDER TO COMPEL PRODUCTION OF DOCUMENTS UNDER DECREE.

Upon opening of the matter this present day unto the Right Honourable the Lord High Chancellor, by Mr. E. being of the plaintiff's counsel, it was alleged that by the decree made in this cause the 8th day of March, 1741, it was amongst other things ordered, that the defendants E. P. and E. M. should produce &c. That the said defendants E. P. and E. M. have been duly served with warrants for that purpose, as by affidavit made before the said Master appeared, notwithstanding which they have not produced &c. as by the said Master's certificate dated this day appeared. It is therefore ordered, that the said defendants do produce before the said Master all books of account, papers and writings in their custody or power in four days after notice hereof to their clerk in Court, or in default thereof, that the Serjeant at Arms attending this Court do go against the said defendants, and bring them to the bar of this Court to answer their said contempt; whereupon such further order shall be made as shall be just. Parsons v. Parsons, L. C. 15th November, 1746. Reg. Lib. B. 1746. fol. 10.

For like orders. See Hand's Pract. 133. 134. Equity Draftsman, 604.