SECTION 10.

Effect of the Master becoming incapacitated.

WHERE a Master becomes incapacitated from attending to the business of his office, and it becomes necessary to transfer it to another Master, the proper order in all such cases, even where the report has been actually prepared and only requires signature, is, "to transfer the matter to the Master next in rotation, with liberty for him, if he should think fit to adopt the proceedings already had in the Master's, office." (Att-Gen. v. Haberdashers' Company, 3 Beav. 130).

SECTION 11.

Production of Books and Papers before the Master.

THE common direction, that a party shall produce before the Master all books and papers relating to the matters in question, as the Master shall direct, entitles the Master to require by his warrant, that all such books and papers, generally, shall be left in his office, and a refusal to leave them in pursuance of such a warrant, is a disobedience of the order of the Court which has directed their production. (Shirley v. Earl of Ferrers, 1 My. & Cr. 304). If a mortgagee, a party to the suit, consent to a sale of the mortgaged property, he must, under this direction, produce, and leave in the Master's office, the title-deeds which are necessary in order to complete such sale. (Livesey v. Harding, 1 Beav. 343).

CHAPTER LII.

EXECUTION OF DECREES AND ORDERS.

1. Writ of Execution, 391. 4. To enforce the Delivery

2. Writ of Execution Abolish

ed, 393.

3. Distinction between Per-5. sons who are, and Per

up of the Possession of
Lands, 396.

To enforce Production of
Papers, 397.

sons who are not, parties, 6. To compel the Execution

abolished, 395.

of Deeds, 398.

SECTION 1.

Writ of Execution.

PREVIOUS to the alteration of the practice by the Orders of the 16th August, 1841, which will be presently stated, the mode of enforcing a decree was by a writ of execution of it. The writ was issued by the clerk in court without order. (1 Turn. Pr. 97). The whole of the decree was formerly inserted in the writ, (Gilb. For. Rom. 191), but afterwards not, unless the party suing out the writ desired that the whole of the decree should be recited in it, a shorter mode of drawing writs of execution being prescribed. (Bea. Ord. 76). The short writ of execution was as follows:

Victoria, by the grace of God of Great Britain and Ireland Queen, Defender of the Faith, and so forth. To A. B. greeting. Whereas by a certain final judgment or decree lately made before us in our Court of Chancery in a certain

Service of the writ.

Costs of the writ.

cause there depending, wherein C. D. is complainant, and you
the said A. B. defendant, it is ordered and decreed, that you
the said defendant do pay to the said complainant the sum of
£ as by the said decree doth or may more fully appear.
Therefore, we strictly enjoin and command you the said A. B.
that you do immediately pay or cause to be paid unto the said
complainant the said sum of £
according to the tenor
and true meaning of the said decree. And hereof you are not
by any means to fail at your peril.

Witness ourselves at Westminster the

in the

year of our reign.

day of

In order to found process of contempt upon it, the writ was required to be served personally, (Harr. 331), except under special circumstances, as if the party was in Court when the decree was pronounced, (Rider v. Kidder, 12 Ves. 202), or absconded, (De Manneville v. Manneville, 12 Ves. 203; Anon. 4 Madd. 462), when, on a proper case being made out, service on the clerk in court would be substituted. In a case where the wife absconded, service on the husband, or any of the family, was ordered. (Clarke v. Greenhill, 1 Dick. 91).

Where the order was for payment of money, and the party absconded, the writ of execution should also be served at his dwelling-house. (Farrow v. White, 1 Jac. & Walk. 643). Where the clerk in court of the party absconding was dead, the regular course was to serve a subpoena to name a new clerk in court. (Francklyn v. Colhoun, 12 Ves. 2, where the practice is fully stated; and see Ratcliffe v. Roper, 1 P. W. 420.)

If the writ was obeyed, the party issuing it paid the costs. If an attachment issued for disobedience,

the party against whom it was issued paid the costs of his contempt, including those of the writ of execution. (Bea. Costs, 245; Willis v. Crump, 3 Madd. 391).

Upon affidavit of service of the writ of execution Attachment, of the decree and default, an attachment issued. (Gilb. For. Rom. 191). If this were ineffectual, the subsequent process was followed out in the manner explained (ante, 53).

SECTION 2.

Writ of Execution Abolished.

THIS writ, the service of which as a preliminary step to issuing process for enforcing obedience to a decree or order, was both useless and expensive, has been abolished, it being ordered by the 10th Ord. (C. & L.) as amended by the Order of 11th April, 1842, "That no writ of execution shall hereafter 'be issued for the purpose of requiring or compelling obedience to any order or decree of the High

Court of Chancery; but that the party required by 'any such order [or decree] to do any act shall, upon

being duly served with such order [or decree], 'be held bound to do such act in obedience to the 'order [or decree]." And by the 11th of the same Orders, as amended in like manner, "That if any party who is by an order or decree ordered to pay money, or [to] do any other act in a limited time, 'shall, after due service of such order [or decree], ⚫ refuse or neglect to obey the same according to the 'exigency thereof, the party prosecuting such order

'[or decree] shall, at the expiration of the time ⚫ limited for the performance thereof, be entitled [to a 'writ or writs of attachment against the disobedient 'party; and in case such party shall be taken or de

tained in custody under any such writ of attach'ment without obeying the same order or decree, 'then the party prosecuting the same order or decree

shall, upon the sheriff's return that the party has ⚫ been so taken or detained, be entitled to a commis'sion of sequestration against the estate and effects of 'the disobedient party; and in case the sheriff shall 'make the return non est inventus to such writ or 'writs of attachment, the party prosecuting the same order or decree shall be entitled, at his option, ' either to a commission of sequestration in the first instance or otherwise] to an order for the serjeant-at'arms, and [to] such other process as he hath hitherto 'been entitled to upon a return non est inventus, [made] by the commissioners named in a commis'sion of rebellion issued for [the] non-performance ' of an order or decree:" and by the 12th as in like manner amended "That every order or decree re

quiring any party to do an act thereby ordered, 'shall state the time after service of the order or 'decree within which the act is to be done; and 'that upon the copy of the order [or decree] which shall be served upon the party required to obey the same, there shall be endorsed a memorandum in the words, or to the effect following; viz.-" If 'you, the within-named A. B., neglect to obey this order [or decree] by the time therein limited, you "will be liable to be arrested [under a writ of attach

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