The payment of money, the amount,—in case of default or failure of payment thereof, forthwith, or at the time or times or in the manner thereby directed,-shall be recoverable by execution against the goods and chattels of the party against whom such order shall be made (a). And if the order be for payment of the money by instalments, execution upon such order shall not issue against the party, until after default in payment of some instalment according to such order; and execution or successive executions may then issue for the whole of the said sum of money and costs remaining unpaid, or for such portion thereof as the judge shall order either at the time of making the original order, or at any subsequent time (b). But no execution shall issue by or against any person, who is not a party to the suit, without a plaint and summons upon the judgment, the proceedings in which shall be the same as in ordinary cases (c). And where a judgment has been given for or against a person deceased, [execution shall not be sued out by or against the executors or administrators,] but the executors or administrators may sue or be sued upon the judgment (d). Nor shall execution issue against the goods of a foreign ambassador, or of his "domestic or domestic servant" (e). And if it shall at any time appear, to the satisfaction of the judge, by the oath or affirmation of any person or otherwise, that any defendant is unable, from sickness or other sufficient cause, to pay and discharge the debt or damages recovered against him, or an instalment thereof, ordered to be paid as aforesaid, it shall be lawful for the judge, in his discretion, to suspend or to stay any judgment, order or execution, given, made or issued in such action, for such time and on such terms as the judge shall think fit, and so from time to time, until it shall appear by the like proof as aforesaid that such temporary cause of disability has ceased (ƒ). The following is the form of the It is ordered, that an order of this court bearing date (a) Stat. s. 94. (b) Id. s. 95. (c) Rule 27. (d) Rule 28. [or the judgment herein, or execution herein issued against the goods or person of the defendant] be suspended until [upon payment of costs by -] Given under the seal of the court, this 18--. day of By the court. Clerk. But no judgment or execution shall be stayed, delayed or reversed upon or by any writ of error, or any supersedeas thereon, to be sued for the reversing of any judgment given in any court holden under the provisions of this Act (g). For what amount.] The execution, as to the sum to be levied, must in ordinary cases strictly pursue the order upon the judgment (h). But where the order is for payment of money by instalments, if default be made in the payment of any instalment, then execution may issue for all that then remains due and unpaid, "or for such portion thereof as the judge shall order, either at the time of making the original order, or at any subsequent time, under seal of the court" (i). In the case of cross judgments, however, we have seen (k) that execution shall be sued out for the balance only, after deducting the smaller from the larger judgment (1). When and how issued.] If default be made in the payment of money ordered, at the time mentioned in the order, the clerk of the court, at the request of the party prosecuting such order, shall issue, under the seal of the court, a fieri facias, as a warrant of execution, to the high bailiff of the court, who by such warrant shall be empowered to levy or cause to be levied, by distress and sale of the goods and chattels of the party against whom the order was obtained, wheresoever they may be found within the district of the court, whether within liberties or without, such sum of money as shall be so ordered, and also the costs of the execution (m). So, where the money is payable by instalments, execution for all that remains unpaid, may issue, upon default in payment of any instalment (n). And in or upon every warrant of execution, the clerk of the court shall cause to be inserted or indorsed the sum of money and costs adjudged, with the sums allowed by this Act as increased costs for the execution of such warrant (0). (g Stat. s. 108. (h) See Stat. s. 94, infra. (2) See Id. s. 95. (k) Ante, p. 43. (1) Stat. s. 93. (m) Id. s. 94. The following are the forms of the Warrant of Execution at the suit of a Plaintiff. No. -. (Seal.) In the county court of · - at Between A. B. plaintiff, and C. D. defendant. Whereas at a county court duly holden at day of before at on the within the jurisdiction of the said court, the judge of the said court, the said plaintiff, by the consideration and judgment of the said court, recovered against the said defendant, the sum of £· for a certain debt before that time due and owing to the said plaintiff, [or for certain damages by him sustained, and by the said court awarded to be paid to him the said plaintiff] together with the costs of suit, by the said plaintiff in that behalf expended: and whereas the said defendant, by an order of the said court bearing date the day and year aforesaid, was ordered to pay the said debt [or damages] together with the said costs, amounting together to the sum of [state the time for payment]: [or the sum of And whereas the said sum of· , being part of the said sum of as the case may be], has not been paid to the said plaintiff, pursuant to the said order: These are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels of the said defendant, wheresoever they may be found within the district of this court (excepting the wearing-apparel and bedding of the said defendant or his family, and the tools and implements of his trade, if any, to the value of five pounds), the said sum of · and also the costs of this execution; and also to seize and take any money or bank-notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties or securities for money, of the said defendant, which may be there found, or such part, or so much thereof as may be sufficient for the satisfying of this execution, and the costs of making and executing the same. Given under the seal of the court, this · day of, 18—. By the court. Clerk of the said court. [In cases of cross-judgments the execution must be stated to be for the balance.] To thereof. high bailiff of the said court, and other the bailiffs Debt. Execution. £ 8. d. Notice. The goods and chattels are not to be sold until after the end of five days next following the day on which they may have been taken, unless they be of a perishable nature, or at the request of the said defendant. Warrant of Execution by a Defendant for Costs, &c. No. -. In the county court of - at (Seal.) Between A. B. plaintiff, and day of within the before Whereas at a county court duly holden at jurisdiction of the said court, on the the judge of the said court, the said plaintiff appeared [or did not appear] to prosecute his plaint against the said defendant in an action of debt [or to recover damages] for [set out the substance of the plaint]: And whereas the said plaintiff, at the hearing of the said plaint, did not make proof of his debt [or demand] to the satisfaction of the said court, and thereupon it was ordered and adjudged by the said court, that judgment should be entered for the said defendant, and that the said plaintiff should pay to the said defendant the sum of £, by way of costs and satisfaction for his trouble and attendance in that behalf, and the further sum of £ for his costs and charges, by the said defendant about the said suit in that behalf expended, amounting together to the sum of £ on or before the day of : And whereas the said sum of £not been paid to the said defendant, pursuant to the said judgment and order: These are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels of the said plaintiff, wheresoever they may be found within the district of this court, (excepting the wearing-apparel and bedding of the said plaintiff or his family, and the tools and implements of his trade, if any, to the value of five pounds), the said sum of £- and also the costs of this execution; and also to seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, of the said plaintiff, which may there be found, or such part or so much thereof as may be sufficient for the satisfying of this execution, and the costs of making and executing the same. Given under the seal of the court, this 18-. has day of By the court. Clerk of the said court. Το thereof. high bailiff of the said court, and the other bailiffs Costs... £ s. d. Notice. The goods and chattels are not to be sold until after the end of five days next following the day on which they may have been taken, unless they be of a perishable nature, or at the request of the said defendant. Within what time to be executed.] No warrant of execution shall be executed after the expiration of two calendar months from the date thereof (p). And if the party, against whom an execution issues, shall, before an actual sale of the goods and chattels, pay or cause to be paid or tendered unto the clerk of the court out of which such warrant of execution has issued, or to the bailiff holding the warrant of execution, such sum of money and costs indorsed on the warrant, or such part thereof as the person entitled thereto shall agree to accept in full of his debt or damages and costs, together with the fees herein directed to be paid, the execution shall be superseded, and the goods and chattels of the said party shall be discharged and set at liberty (9). As to the fees, see the Appendix, p. 200, schedule D. How executed.] The warrant of execution requires the bailiff to make and levy, by distress and sale of the goods and chattels of the party, wheresoever they may be found within the district of the court, (excepting the wearing apparel and bedding of the party, and his family, and the tools and implements of his trade, if any, [amounting altogether] to the value of five pounds), the sum stated, and the costs of the execution; and to seize or take any money or bank notes (whether of the Bank of England or any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties or securities for money, which may there be found, or such part or so much thereof as may be sufficient for the satisfying of the execution, and the costs of making and executing the same (r). And all this, the bailiff must do, in execution of the warrant. (p) Rule 37. (q) Stat. s. 109, and see Bayley v. Potts, 8 Ad. & El. 272. (r) See the warrant, ante, pp. 88, 89, and see stat. ss. 94 & 96. |