How to be executed.] Where a sequestration upon mesne process is to be executed, it should be delivered by the solicitor to the sequestrators, with proper instructions for carrying it into effect.(w) Notice should be given to any persons holding funds or property of the defendant not to pay over or deliver the same to him or for his use. Regularly, a copy of the commission should be served with this notice.(x) cree. The sequestrators are officers of the court, and, as such, are amenable to its authority, and are to act from time to time in the execution of their office as they shall be directed. They are to account for what comes to their hands, and are to bring the money into court as they shall be directed. Such money, however, is not usually paid to the complainant, but is to remain in court until the defendant has appeared, or answered, or cleared his contempt; and then whatsoever has been seized shall be accounted for and paid over to him.(y) In this respect, there is a difference between a sequestration upon mesne process and a sequestration to compel the payment of money under an order or deIn the latter case, after the process has been executed and goods and estate sequestered under it, the complainant may have them applied to satisfy his demand; which cannot be done upon process of contempt.(z) It is said, however, that even in the case of a sequestration upon mesne process, the court has the whole under its and may power, do therein as it pleases, and as shall be most agreeable to the justice and equity of the case. (a) And, in one case, (b) where a defendant in contempt for want of an answer, had stood out the whole process to a sequestration, whereupon the bill was taken pro confesso against him, and a decree made ad computandnm, the court refused to discharge the sequestration on the defendant's paying the costs of contempt only; but kept it on foot as a security for his appearing before the master to account.(c) What things may be scized under sequestration.] Under a sequestration upon mesne process, the sequestrators may take possession of all the defendant's goods and chattels.(d) By this is meant those goods and chattels only which are in the possession of the defendant, or which can be reached without suit, or action; for choses in action cannot be se questered.(e) Powers and duty of sequestrators.] Sequestrators have the power to break open doors, in the execution of their duty.(f) So they may open boxes and rooms that are locked, if the keys are denied them, and schedule the goods in them. But they have no right to remove any thing from the house without the special order of the court.(g) Indeed, it seems, that if the sequestrators take upon themselves to remove the defendant's property, they will be liable to an attachment.(h) They are bound, however, to keep the defendant not merely nominally, but really out of possession of his property. The court must not be trifled. with, and its process must be made effectual.(¿) The sequestrators are authorized to enter into the possession of such parts of the defendant's real estate as are in his own occupation, whether freehold or copyhold.(k) Attornment of tenants.] On entering upon a defendant's estate, the sequestrators should serve the tenants in possession, if there are any, with a notice in writing to attorn and pay their arrears and growing rents to them. This may be done either personally, by serving the tenant with the notice and at the same time showing him the sequestration under seal; or by leaving the notice at his dwelling-house, with some member of his family, together with a copy of the sequestration, and showing the original writ to the person served.(1) Upon an affidavit of this service, an order will be granted that the tenants attorn, and pay their rents to the sequestrators.(m) This order should be made upon the tenants by name, and not upon the tenants of the defendant generally.(n) The tenants will be protected if they voluntarily pay their rents to the sequestrators.(0) And if they refuse to attorn or pay their rents, after service of the order, they may be proceeded against as for a contempt. Where the sequestration is for the non-performance of a decree, the court will, on proper application, give them authority to let the proper (e) 1 Dan. 637. 4 Ves 744. Johnson v. Chippindall, 2 Sim. 55. Fenton v. Lowther, 1 Cox, 315. Dundass v. Dutens, 1 Ves. jun. 196. (f) Lowten v. Mayor of Colchester, 2 Meriv. 395. (g) Lord Pelham v. Duchess of Newcastle, 3 Swans. 290, n. (h) Desbrow v. Crommie, Bunb. 272. (i) Hales v. Shaftoe, 1 Ves. jun. 86. (k) 1 Barnard. 431. Coulston v. Gardiner, 2 Ch. Ca. 76. (7) 1 Dan. Ch. Pr. 641. Fow. Ex. Pr. 176. (m) 1 Fow. Ex. Pr. 176. ty ;(p) but no such authority will be given where the sequestration is upon mesne process.(q) Sale of goods.] As the sequestrators, upon mesne process, have no power to remove goods, much less have they power to sell them. If a sale is necessary, application should be made to the court for permission to sell; but an order for the sale of goods taken upon mesne process, will scarcely ever be made, unless for the purpose of raising money to pay the expenses of the sequestration, or where the goods are of a perishable nature, such as rents paid in kind, or the natural produce of a farm.(r) And whenever an order to sell property taken under a sequestration to enforce a decree or order is applied for, it must be upon notice.(s) Whether such an order can be made without notice, upon a sequestration on mesne process, does not appear. If notice is necessary, however it can only be where the process was issued to compel an answer, after appearance. Where the process is to compel appearance, no personal notice can be given, because there is no person upon whom it can be served.(t) The application for a sale may be made either by motion or petition.(u) Sequestrators to account, &c.] Sequestrators upon mesne process are accountable for all that they receive, and can only retain so far as to satisfy for the contempt.(v) They are bound, from time to time, to make returns to the court of what comes to their hands under the sequestration.(w) And if they omit to do so, they will not be permitted to set off their fees.(x) Upon the sequestrators returning that they have money in their possession, the court will, upon application, order it to be paid into court, to the credit of the cause, and invested; but the costs may be previously taxed and retained.(y) Writ of assistance.] If the sequestrators are obstructed in the execution of their duty, the court will grant a writ of assistance to the sheriff, to aid them.(z) And it is a contempt of court to disturb them in their possession of property taken under the sequestration.(a) (c). (p) Neale v. Neale, 3 Swanst. 304, n. Harvey v. Harvey, 2 Ch. Rep. 49. (9) Ray v.- 3 Swanst. 306, n. (a). (r) Shaw v. Wright, 3 Ves. 22. Wilcocks v. Wilcocks, Abm. 421. 1 Dan. Ch. Pr. 639. (s) Mitchell v. Draper, 9 Ves. 208. (t) 1 Dan. 640. (u) 9 Ves. 208. Abm. 421. (v) Gibson v. Scevengton, 1 Vern. 247. (w) Desbrow v. Crommie, Bunb. 272. (x) Hawkins v. Crook, 3 Atk. 394. (y) Howell v. Lord Coningsby, 1 Fow. Ex. Pr. 161. (z) Greenslade v. Baker, Bunb. 168. 1 Dan. 643. (a) Angel v. Smith, 9 Ves. 336. 3 Swanst. 290. n. Examination pro interesse suo.] Where any person claims title to an estate or other property sequestrated, whether by mortgage or judgment, lease or otherwise, or he has a title paramount to the sequestration, the proper course for him is to apply to the court to direct the complainant to exhibit interrogatories before a master, in order that the party applying may be examined as to his title to the estate. (b) An examination of this sort is called an examination pro interesse suo, and an order for it may be obtained as well where the property consists of goods and chattels, or personalty, as where it is real estate. (c) An order for the examination of a party pro interesse suo may be obtained as a matter of course by the party claiming. But it cannot be granted until after the sequestrators have made a return; because, till then, it cannot appear to the court what is sequestered.(d) The application for this order may be made either by motion or petition.(e) If made by the former, it should be supported by affidavit, stating the facts under which the claim arises. If made by the latter, the petition ought to state the circumstances of the case.(f) An order for the examination of a party pro interesse suo may not only to be granted upon his own application, but upon the application of the complainant in the suit.(g) In all orders for the complainant to examine a party pro interesse suo, there should be a time limited within which the interrogatories must be exhibited.(h) According to the English practice, the interrog atories must be settled by a master ;(i) and if the claimant, after the interrogatories have been exhibited and settled, neglects to put in his examination, the court will order him to do so, and to procure the master's report within a specified time.(k) When the examination has been put in, the complainant, if he disputes its truth, must reply to it; other. wise it will be conclusive ;(1) and the complainant may then apply for a reference to a master to look into the interrogatories and the examination, and to certify whether the claimant has made out a title or not.(m) If the examination is replied to, leave will be given to either party to examine witnesses; and this will be done by order made upon mo tion without notice.(n) After the witnesses have been examined, publication passes, by order; and an order is then entered to refer it to a master to look into the examination and depositions, and to certify whether the claimant has made out any, and what, interest in the premises, or in any, and what, part thereof.(o) When the master has made his report, the case should be set down for hearing upon the report. This report cannot be excepted to: if either party objects to the master's finding, the matter should be discussed upon hearing the report.(p) Upon the hearing on the report, the court will either make a final order,(q) or send it back to the master to make further inquiries, or to compute principal and interest upon the amount due to the claimant.(r) If it is sent back to the master, it may, if necessary, be heard upon further directions.(s) When it appears that a party who has been examined pro interesse suo has a plain title to the property, and is not affected by the sequestration, then it is to be discharged against him, with or without costs, as the court shall determine upon the circumstances of the case; and so vice versa.(t) Injunction to stay proceedings at law.] Where sequestrators or a receiver are in the possession of property belonging to a defendant, and a party claiming that property adversely to the defendant brings an action of ejectment against the sequestrators or receiver, for the purpose of enforcing his claim, the court will interfere by injunction, to prevent the party claiming from proceeding with the ejectment; for although the court will sometimes permit the party to proceed at law against the sequestrators or receiver, where a matter is in a fit state for the right to be ascertained by a trial at law, such a proceeding cannot be adopted unless the permission of the court has been first obtained.(u) When trial at law, or reference will be directed.] Where a party claiming the legal right to property sequestered has made an applica tion to be examined pro interesse suo, the court has sometimes, instead of granting the order prayed for, given the party leave to try his title at law either by ejectment or in such other manner as may be necessary for the purpose of deciding the point.(v) And sometimes the court |