BOOK IV. PART IL Where the an attachment to enforce an award, and afterwards proceeded by action, the court set aside the attachment, upon the terms of the defendant's giving a bond to the plaintiff, with sureties to the master's satisfaction, and conditioned to the same effect as in the case of a recognisance of bail (i). The court, however, have granted an attachment, pending a foreign attachment in London upon the same award (k); and the party's residing out of the jurisdiction of the court is no objection to the issuing of an attachment against him(7). An attachment may be obtained against one of several of the parties against whom the award is made (m). And if an award directs costs to be paid by the parties in equal shares, there must be separate attachments (n). It has been doubted, whether an attachment will lie for non-payment of money ordered to be paid by rule of court, since the 1 & 2 V. c. 110, s. 18, which gives a remedy by execution. Where the award itself was lost, the court, upon affidavit of Award is lost. that fact, granted an attachment on a copy of it (o). Attachment for filing Bill be set aside Award. Title of Affidavits shewing Cause. Where there Court. Where a party filed a bill in equity to set aside an award, after entering into a rule of this court to abide by it, the court held it to be a contempt, and granted an attachment against him; but they afterwards, by consent on his paying all costs, discharged him without fine, rather than set a small one for so high an offence (p). The affidavits in answer to the rule nisi should be intitled "The Queen v. ——” (q). Where there is a Cause in Court.] If no verdiet have been is a Cause in taken, the mode of proceeding is by attachment or action, or execution on the rule in the manner above mentioned. But if a verdict were taken, the plaintiff may proceed either by attachment or action, as above directed, or he may enter up judgment upon the verdiet and sue out execution: and the defendant (if the award be made in his favour) may proceed by attachment or action; or, if the order of reference direct that the party in whose favour the award is made shall be at liberty to sign judgment for the amount payable thereunder, he may sign judgment, and issue execution for his costs (r). Judgment on, &2. In order to proceed to judgment on the verdict, move to How Signed, make the order of Nisi Prius a rule of court, and draw up the rule as before directed; and the master or associate will thereupon give you the Nisi Prius record. Enter the postea on it for the amount of the sum awarded(s); give the usual one day's (k) Coppell v. Smith, 4 T. R. 313 n. Hoperaft v. Fermor, 8 Moore, 424; 1 Bing. 260, S. C. (m) Richmond v. Parkinson, 3 Dowl. 703. (n) Gulliver v. Summerfield, 5 Dowl. 401. (0) Robinson v. Davis, 1 Str. 526; and see Hill v. Townsend, 3 Taunt. 45. (P) Rex v. Wheeler, 3 Burr. 1256; 1 W. (q) Bevan v. Bevan, 3 T. R. 601: see (s) Lee v. Lingard, 1 East, 401: Grimes v. Naish, 1 B. & P. 480: Borrowdale v. Hitchener, 3 Id. 244: Hayward v. Ribans, 4 East, 310: Bonner v. Charlton, 5 East, 139, 143, 144: Prentice v. Reed, 1 Taunt. 151: and see Grundy v. Wilson, 7 Id. 700. We have already seen that the arbitrator cannot, as regards an action thus referred, award greater damages than are laid in the declaration, and that where a verdict has been taken, the court will not allow the sum laid as damages to be increased, though a greater sum be capable of being proved before the arbitrator. Also that the judgment may in case of a too large award be entered for the amount of the verdict, (which is in general the amount notice of the taxation of costs (ante, 1162); then take the postea together with the rule and award, and the papers in the cause, to one of the masters, who will thereupon mark the postea, and tax the costs, and sign judgment. It is not necessary that the defendant, in this case, should be personally served with a copy of the award; nor is it necessary to obtain leave of the court to sign judgment (t), unless it be required to enter up the judgment as of the term next after the finding of the verdict, where the award was not made until the term after that term (u). Where the award was lost, the court, upon an affidavit stating that fact, and stating the substance of the award, allowed the plaintiff to sign his judgment (x). A rule for delivering the postea to the plaintiff, that he might enter the verdict pursuant to the award of an arbitrator, may be drawn up on reading the affidavit, "and the paper writing thereunto annexed," provided the affidavit verify the paper writing as being a copy of the award (y). SECT. 4. After signing judgment, you may sue out execution, as in Execution. ordinary cases. If the award state any particular time at which the money is to be paid, execution should not be sued out, nor indeed in strictness, perhaps, should judgment be signed, before that time have elapsed (~). of damages laid in the declaration), and that if entered for a greater sum, it may be amended. Ante, 1222). (t) Lee v. Lingard, 1 East, 401: Grimes v. Naish, 1 B. & P. 480: Borrowdale v. Hitchener, 3 Id. 244. (u) Brook v. Fearns, 1 Dowl. 144. (z) Callard v. Paterson, 4 Taunt. 319. BOOK IV. PART III. BOOK IV. In what Cases. Contemptusions towards the Court or ous Expres its process. Rescue. Misbehaviour of Attornies or Officers of Court, &c. ATTACHMENT. In what Cases.] IF a person, upon being served with the process of the court, use contemptuous expressions of such process or of the court itself, the court, upon affidavit of the fact, will grant an attachment against him (a); if of the court, the rule is granted absolute in the first instance; if of the process, it is a rule nisi only (b). Mere violent snatching an original writ of summons from the person serving a copy of it is not a contempt of the process of the court (c). If the sheriff return a rescue, the court will grant an attachment against the rescuers, absolute in the first instance (d), for the sheriff's return in this case being in the nature of a conviction, and not traversable, (the only remedy for the party, if he be not guilty, being by action against the sheriff for his false return) (e), it would be useless to grant a rule nisi(ƒ). The courts at Westminster have a power of punishing attornies and other officers of the court, by attachment, for misbehaviour in the exercise of their profession. Thus, if an attorney sue or defend an action without authority, particularly if he do so from any improper motive; or if a person, who is not an attorney, sue or defend an action for another, with or without authority, the court will punish him by attachment (g). So, if a person put an attorney's name to process, without his authority, the court will grant an attachment against him, and will also set aside the proceedings (h); or if an attorney allow an unqualified person to act in his name, or shall in any manner act as agent for such person, the court, upon application and affidavit of the facts, may order the attorney to be struck off the roll, and may commit such unqualified person to the prison of the court, for any time not exceeding one year (i). Also, where an attorney and his arti (a) 2 Hawk. c. 22, s. 36. (b) 2 Hawk. c. 22, s. 36: Rez v. Jones, 1 Str. 185: R. v. Kendrick, Say. 114: Anon., 1 Salk. 84: R. T., 17 G. 3. (c) Weekes v. Whitely, 3 Dowl. 536: and see Adams v. Hughes, 1 B. & B. 24: Myers v. Wills, 4 Moore, 147. (d) Anon., Say. 121: Rer v. Elkins, 4 Burr. 2129: Sheather v. Holt, 1 Str. 531. (e) Rer v. Pember, Hardw. 112. (h) Vol. I. 45: Oppenheim v. Harrison, 1 Burr. 20: see Hopwood v. Adams, 5 Burr. 2660: but see Matthews v. Royle, 6 Moore, 70. (i) 22 G. 2, c. 46, s. 11: Vol. I. 43, 44. eled clerk joined in the affidavit of execution of the articles, and the clerk swore to the service under them. and was consequently admitted an attorney; but it appearing afterwards that the articles were merely collusive, the pretended clerk being in fact an apprentice to a hatter, and his affidavit of service under the articles false, the court ordered the clerk to be struck off the roll, and granted an attachment against the attorney for the collusion (). If an attorney refuse to deliver up to his client writings or money received by him in the course of his professional business, the court may punish him by attachment; but they seldom grant an attachment in such a case, without first making a rule upon the attorney to deliver up the writings, &c.; and if that rule be not obeyed, the attachment then issues for the contempt (7). So, if an attorney be guilty of fraud or mal-practice in his profession, the court will punish him by attachment (m). The court will not at once strike an attorney off the roll for a contempt, and the course is to apply for an attachment against him (n). BOOK IV. PART 111. If the sheriff do not obey the rule to return the writ or Sheriff or Cobring in the body, the court will grant an attachment against roner not executing Writ, him, absolute in the first instance (o). So, in other cases, for or executing not executing writs or for executing them in an oppressive it oppressively, &c. manner, or for not executing them effectually, &c., the court will punish the sheriff or his officers by attachment (p). So, where an attachment against the sheriff was directed to the coroner, and the latter was ruled to bring in the body, the court granted an attachment against him, absolute in the first instance, for not obeying the rule (7). The sheriff, however, is not liable to an attachment for not taking a bond in replevin; but the defendant, if damnified, may have his remedy against him by action (r). It may here be added, that an attachment cannot be obtained against the late sheriff for disobedience of an order directed to "the sheriff" generally (s). ferior Courts, As to the cases in which the court will punish the judges of Against inferior courts, justices of peace, gaolers, &c., by attachment, Judges of Insee 2 Hawk. c. 22, ss. 25 to 32; and Rex v. Justices of Seaford, J. P.'s, Gaol1 W. Bl. 432. ers, &c. of Process. If any person wilfully disobey the process of the court, he Disobedience is punishable by attachment(). Thus, if a witness regularly served with a subpoena do not attend at the trial, and is called on the subpoena (u), the court, upon an affidavit, stating a personal service of the subpoena ticket a reasonable time before the trial, and payment or tender of his reasonable expenses to the witness, will grant an attachment against him (v). The court will not grant an attachment for disobedience of a subpoena duces tecum, unless it appears clearly that the party absented himself or withheld the documents in defiance and (k) Er p. Hill, 2 W. Bl. 991. (1) 2 Hawk. c. 22, s. 10. (m) See Vol. I. 60: 2 Hawk. c. 22, ss. 10, 11. (n) Exp. Townley, 3 Dowl. 30: Exp. Grant, Id. 320. (0) Vol. I, 550, 551, 552. (p) 2 Hawk. c. 22, ss. 2 to 5. Chapman v. Maddison, 2 Str. 1069. 617. (s) R. v. Sheriff of Cornwall, in Hemming v. Tremera, 7 Dowl. 600. (t) See the subject of attachment for disobedience of process discussed in the learned judgments delivered by the judges in Dom. Proc., Miller v. Knox, 4 Bing. See N. C. 574. (9) Andrews v. Sharp, 2 W. Bl. 911: Rex v. Peckham, Id. 1218. (r) Ante, 813: Res v. Lewis, 2 T. R. (u) Rex v. Stretch, 3 Dowl. 368. () Vol. I. 236: Thorpe v. Graham, 11 Moore, 55; 3 Bing. 223, S. C.. 2 Hawk. c. 22, s. 34. BOOK IV. PART III. Disobedience of Rule or Order. contempt of the court (u). The motion in such a case must be made as soon as possible, and at all events in the term succeeding the trial (v). For disobedience of any rule of court, or of any judge's order or order of Nisi Prius made a rule of court (w), the party guilty of it is punishable by attachment, if the rule or a copy of it have been personally served upon him, the rule itself at the same time shewn to him (x), a demand personally made upon him to comply with the rule (y), and a neglect or refusal to do so (2). Thus, the non-performance of an award, if made under a rule of court, or if the submission, order of Nisi Prius, or judge's order, be made a rule of court, is punishable by attachment (a). And if the rule require the party to do a thing forth with,-as, for instance, to reinstate certain premises, the court, upon application, will grant an attachment, if the party do not presently begin the work, although the work be of such a nature that it may take some time to complete it (b). Where, however, attornies, in pursuance of an order, had delivered an account of sums received for their client, the court refused to grant an attachment on affidavits impeaching the accuracy of the account, observing, that "an attachment can only be on the ground of wilful contempt” (c). Where a person is ordered by a rule of court absolutely to pay money or costs (d), and a copy of the rule (e), with the master's allocatur thereon (if any)(f), is personally (g) served on him, and the rule itself at the same time (h) shewn to him (), and a demand made of the money or costs by the (u) R. v. Lord John Russell, 7 Dowl. 693. (v) Thorpe v. Graham, 3 Bing. 223; 11 Moore, 55, S. C. (w) As to the necessity of making the (r) Rer v. Smithies, 3 T. R. 351: Bar (2) 2 Hawk. c. 22, s. 37: see Davies d. (a) Ante, 1257, 1258. (b) Doddington v. Hudson, 1 Bing. 464; 8 Moore, 510, S. C.: see Doddington v. Bailward, 7 Dowl. 640. (c) Ex p. Lawrence, 2 Dowl. 231. (d) It should be here observed that the 18th section of 1 & 2 V. c. 110, has provided a much more convenient and efficacious remedy for costs and other monies ordered to be paid by rule of court, than that by attachment. Under the provisions of that section, as we have already seen, (ante, 1196), all rules of court by which any sum of money, or any costs, charges, or expenses, are made payable to any person, have the effect of judgments, and may be enforced in the same way, viz. by execution. Indeed, it has been doubt ed, but not decided, whether that section has not virtually done away with attachments for non-payment of money by rendering them unnecessary. The ques tion, however, is not of much practical importance, for few will prefer the proceeding by attachment to that by execution, which is at once easier, cheaper, more speedy, and more effectual. (e) Dalton v. Tucker, 5 Dowl. 550. It must in every respect be a correct copy. (Rer v. Calvert, 2 ̊C. & M. 189; 2 Dowl 276, S. C.) (f) Dalton v. Tucker, 5 Dowl. 550. An allocatur is the property of the person in whose favour it is made. (Doe v. Robinson, 2 Dowl. 503). (g) Birkett v. Holme, 4 Dowl. 556; the dictum of Patteson, J., in that case throws great doubt upon Stannall v. Towers, 1 C., M. & R. 88; 2 Dowl. 673, &. C: Woollen v. Hodgson, 3 Dowl. 178: Allier v. Newton, 2 Dowl. 582; where a personal service was, under circumstances, dispensed with. If the defendant admits that he has received, (Phillips v. Hutchinson, 3 Dowl. 583), or refuses to receive, (R. v. Koops, 3 Dowl. 566), or by knocking down or other violences prevents the serving of the rule and allocatur, this is equivalent to personal service. (Wenham v. Downes, 3 Dowl. 573). (h) To obtain an attachment, all the necessary steps must be taken at the same time. (Rogers v. Twisdel, 3 Dowl 572). (i) It need not be placed in his hands: if it be shewn, so that he can read its contents, that is sufficient. (Calmert v. Redfearn, 2 Dowl. 505). A service of the original rule would be sufficient. (Leaf v. Jones, 3 Dowl. 315). |