donec et quousque præfatus defendens, querimoniæ prædictæ perfectè responderit, dictaque curia nostra aliter ordinaverit in hâc parte specialiter, juxta vim formam veramque intentionem ordinis prædicti. Teste &c.-Appendix to Reg. Brev. 51.

No. II.

ORDER FOR PARTY TO BE EXAMINED PRO INTERESSE SUO. (1)

Upon opening the matter this day unto the Court by Mr.C. being of the plaintiff's counsel, it was alleged that a commission of sequestration having issued against the defendant William Ley for non-payment of the sum of £-- pursuant to an order made in this Court &c. That T. P. and H. R. two of the sequestrators named in the commission of sequestration took possession of a messuage &c. as part of the real estate of the said William Ley, since which Mr. E. Cove and Catherine his wife, claiming title to the said premises by virtue of a mortgage thereof made by the defendant Ley to the said Catherine, then Catherine Prestwood, have brought an ejectment in His Majesty's Court of Common Pleas against the said T. P. and H. R. for recovering possession thereof; and therefore it was prayed that &c. Whereupon and upon hearing Mr. C. of counsel for the said Cove and his wife, and upon hearing an affidavit of the said T. P. and H. R. read, and of what was alleged &c. it is ordered that all proceedings on the said ejectment be stayed (2). And that the said E. Cove and C. his wife do come and be examined pro interesse suo before Mr. S. one &c. And the plaintiffs are to file interrogatories for that purpose in a week before the said Master. Hamlyn v. Ley, L. C. 12th February, 1743. Reg. Lib. A. 1742. fol. 194. S. C. 1 Dick. 94. 3 Swan. 301. note.

NOTES.

(1) Examination pro interesse suo.

Where a party claims an interest in property sequestered, an order may be obtained that he may go before the Master and be examined pro interesse suo. Hamlyn v. Ley, supra. Fawcet v. Fothergill,

1 Dick. 19. S. C. 2 Dick. 541. Bowles v. Parsons, 1 Dick. 142. Harr. 144. Gilb. For. Rom. 80.

Cooper v. Thornton, 1 Dick. 72.

Hunt v. Priest, 2 Dick. 540.

The Master cannot inquire into the title to property sequestered without an order. Anon. 3 Swan, 311. note.

In Kaye v. Cunningham, 5 Mad. 406. it was held by the ViceChancellor, that an order for the examination of a party pro interesse suo could only be made upon his application, or by his consent. But see Hamlyn v. Ley, supra. And see Bird v. Littlehales, 3 Swan. 300. note. Mitchell v. Draper, 2 Mad. Ch. 245. note.

The order cannot be made until the return of the commission, Lord Pelham v. Duchess of Newcastle, 3 Swan. 290. note.

An order may also be obtained for an injunction. Hamlyn v. Ley, supra. And see Johnes v. Claughton, Jac. 573.

In case of delay the party will be ordered to put in his examination within a limited time. Cooper v. Thornton, supra. And see Wharam v. Broughton, 1 Ves. 180. S. C. 1 Dick. 137.

Where the right is clear, the Court will give relief, without compelling the party to go before the Master. Dixon v. Smith, 1 Swan. 457. And see Attorney-General v. Mayor of Coventry, 1 P. W. 308. But a mortgagee must come in and be examined. Hamlyn v. Ley, supra. Anon. 6 Ves. 288.

So a party claiming by an adverse title. See Angel v. Smith, 9 Ves. 336. Johnes v. Claughton, supra.

Sometimes leave will be given to the party to proceed at law. Attorney-General v. Mayor of Coventry, supra. Anon. 6 Ves. 288. Angel v. Smith, supra. And see Brooks v. Greathed, 1 J. & W.

178.

In Hunt v. Priest, supra, the Court refused to interfere upon petition. But in Walker v. Bell, 2 Mad. 21. on the petition of mortgagees an order was made for reference to the Master to inquire into their title; and on the report a further order was made on petition. Liberty will be given to a party to proceed pro interesse suo, in formá pauperis. James v. Dore, 2 Dick. 788.

The mode of proceeding is the same where the property is in the possession of a receiver. Anon. 6 Ves. 287. Angel v. Smith, supra. And see Brooks, v. Greathed, supra.

See Order for Reference of Examination, No. II. post.

(2) See Decrees respecting Injunctions, No. XII. Note (3.)

No. III.

ORDER FOR REFERENCE OF EXAMINATION.

Upon the humble petition of Evans Cove and Catherine his wife, this day preferred to the Right Honourable &c. for the reasons &c. it is ordered that it be referred to Mr. S. one &c. to look into the interrogatories exhibited by the plaintiffs, pursuant to an order of the 12th of February instant, before the said Master, for the examination, &c. and also to look into the petitioners' examination put in thereto, and certify whether the petitioners have made out a title to the said premises or not. Hamlyn v. Ley, M. R. 9th June 1743. Reg. Lib. A. 1742. fol. 474. S. C. 1 Dick. 94. 3 Swan. 301. note.

NOTE.

Order for Reference of Examination.

When the examination has been put in, an order may be obtained for a reference to the Master, to see whether the party has made out his claim. Hamlyn v. Ley, supra. Fawcet v. Fothergill, 1 Dick. 19. S. C. 2 Dick. 541. Cooper v. Thornton, 1 Dick. 72. Parsons, 1 Dick. 142.

Hunt v. Priest, 2 Dick. 540.

Bowles v.

And see

If the examination is not replied to, it will be conclusive. Attorney-General v. Mayor of Coventry, 3 Swan. 311. note. Bowles v. Parsons, 1 Dick. 143. note.

If the examination is replied to, leave will be given to either party to examine witnesses. See Fawcet v. Fothergill, supra. Rowley v. Ridley, 3 Swan. 308. note. Harr. 144. Gilb. For. Rom. 86.

Exceptions to Report.

Exceptions are sometimes taken to the report.

See Wharam v.

Broughton, 1 Ves. 181. Belt's Supp. 105. But this is irregular, and

the matter should be set down upon

supra.

See Final Order, No. IV. post.

the report.

Hamlyn v. Ley,

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. And see

Harr. 144. Gilb. For. Rom. 80.

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. 144. Gilb. For. Rom. 80.

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

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