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Judicial only sequestrations in respect of lands, which were Writ.
the subject of the suit, were well known long before this time, but many precedents for injunctions to deliver possession after a decree and a commission or writ of assistance to the sheriff, are in the printed reports, as early as the reign of Queen Elizabeth (a). And in a MS. book of orders (which appear to be taken from the registrar's books) in the Hargrave collection, there are a great many precedents of injunctions to deliver possession of lands after a decree in the time of Henry VIII. Edward VI. and Mary. It is obseryable too that Lord Bacon's orders treat
them as a process well known and much in use (6). Used in aid One of the most extraordinary instances of the of a judg. ment' at Law. use of this species of writ, is the application of it in
aid of a judgment at law; the plaintiff it is said had recovered dower in the C. B. and had judgment and execution, but the defendant being rich and wilful, would not let her have any benefit thereby, whereupon she set forth her title by bill in Chancery, to have her possession established by injunction, and upon a letter written by Lord C. J. Dyer and Meade, J. before whom the trial was had, craving the Lord Chancellor's aid for the plaintiff, he granted an injunction (c). In another case a benefice was
(as Roger North erroneously supposes), who did not come to the seals till the reign of Charles I.
(a) Lane v. Lord Howard, Cary, 148. Denis v. Carew, Toth. 75. Servington v. Webb, ib. 112. Shelton v. Stanley, ib, 115. There are also several precedents, ib. 37. which seem to be for the same purpose.
(6) Beames' Orders, 8. 16.
holden by force from the plaintiff, whereupon a writ Judicial de vi laicá removenda was awarded, and the plaintiff" put in possession by the sheriff, but the defendant still keeping possession of the house belonging to the parsonage, an injunction was granted (a). The proceedings in obtaining and carrying into Proceedings
in order to execution an injunction of this nature are stated in obtain the some observations inserted by Mr. Dickens, in his judicial writ. report of the case of Dove v. Dove (6), and have been established by other determinations as follows (c).
The first process after a decree for possession, is service of a writ of execution of the decree for the defendant to deliver possession, accompanied with a demand of possession. Upon the refusal of the defendant, an attachment issues. The next process is the writ of injunction to deliver possession, which is obtained of course upon affidavit of service of the writ of execution, of the demand and refusal, and of the issuing of the attachment. The writ of injunction affects the tenant, which the order for the defendant to deliver possession does not (d). Upon proof of service of the injunction and of its not having been complied with, and upon motion, without notice, and reading an affidavit of the facts, a writ of assistance will be ordered.
Mr. Dickens states that he has not been able to find any precedent of an order for a writ of assistance
(a) Boult v. Blunt, Cary, 72.
(c) Stribley v. Hawkie, 3 Atk. 275. Hugonin v. Bazeley, 15 Ves. 180.
(d) Venables v. Foyles, cit. 2 Dick. 619.
prior to the reign of Charles II. There are, however, besides some orders contained in Tothill and Cary (a), great numbers of precedents as early as the time of Henry VIII. in the MS. volume in the Hargrave Collection, before alluded to. There are also two precedents of writs of this nature in the Appendix to the last edition of the Registrum Brevium, but their date does not appear (6).
(a) Ante, p. 364.
(a) An Order for an Injunction on a Dedimus.
Master of? Thursday, the day of in the
year of the reign of his Majesty King George the Fourth, and in the year of our Lord between A. B. and C. D. complainants, and E. F., defendant.
FORASMUCH as this court was this present day informed by Mr.
, being of the plaintiff's counsel, that the defendant being served with process to appear to and answer the plaintiff's bill, hath appeared accordingly, but, for delay, hath craved a commission to answer in the country, and yet, in the meantime, the said defendant prosecutes the plaintiffs at law for the matters in the bill complained of: it is thereupon ordered, that an injunction be awarded against the defendant for stay of his proceedings at law against the said plaintiffs, until the said defendant shall fully answer the plaintiff's bill, and this court make other order to the contrary; but the said defendant is, 'in the meantime, at liberty to call for a plea, and to proceed to trial thereon, and, for want of a plea, to enter up judgment; but execution is hereby stayed.
(a) Harrison's Ch. Pr. 553.
(a) Docket upon an Injunction on a Dedimus.
THE King and so forth. To his counsellors, attornies, solicitors, and agents, greeting: Whereas it is represented to us in our Court of Chancery, on the part of A. B. and C. D., complainants, that they have lately exhibited their bill of complaint in our said Court of Chancery against you the said E. F., defendant, to be relieved touching the matters therein contained; and that you, the said defendant E. F., being served with a writ, issuing out of the said court, commanding you to appear to and answer the said bill, have appeared, but, for delay, have craved a commission to answer in the country; and yet, in the meantime, you unjustly (as is alleged) prosecute the said complaints at law, for and touching the matters in the said bill complained of: We therefore, in consideration of the premises, do hereby strictly command and enjoin you, the said E. F., defendant, and all and every the persons before mentioned, under the penalty of two hundred pounds, to be levied on you and each of your lands and tenements, goods and chattels, to our use, that you and each of you do henceforth absolutely desist and forbear from all further proceedings at law against the said complainants, or either of them, until you, the said defendant, E. F., shall fully answer the said complainant's bill, and this court make other order to the contrary; and this you, nor either of you, are in anywise to omit, under the penalty aforesaid : But, nevertheless, the said defendant, E. F., is at liberty to call for a plea and proceed to trial thereon, and, for want of a plea, to enter up judgment; but execution is hereby stayed. Witness the King at Westminster the day of in the year of his reign.
(a) Harrison, Ch. Pr. 553.