Imatges de pàgina
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CHAPTER X.

MONITION (α).

A MONITION is a formal order of the Court commanding Monition. something to be done by the person to whom the monition is directed. When money is decreed to be paid, a monition may be obtained commanding its payment, and wherever in the course of the proceedings in a suit the Court sees fit to order anything to be done by either of the parties or other persons over whom the Court has jurisdiction, a monition will be granted (b).

monition.

To obtain a monition application should be made on Motion for motion to the Court or to the judge at chambers (c). In cases where a monition is applied for simply to carry out a decree or order of the Court, a monition will be granted on application in due form as of course (d). In other

(a) This must not be confounded with the process by monition by which actions in personam were formerly instituted. Actions in personam are now instituted by citation.

(b) As we have seen in actions in personam, the amount decreed to be paid will be ordered to be paid by monition; and in actions in rem where bail has been given, the Court will grant a monition commanding the parties and their sureties to pay the amount decreed to be due. A monition may be obtained commanding a party condemned in costs to pay costs. Where freight is improperly withheld, the party withholding it may be compelled by monition to bring it in.

The Lord Auckland, 2 W. Rob. 301;
The Meggie, L. R. 1 Ad. 77; The
Mellona, 6 No. Ca. 73. Where ship's
papers or other documents are impro-
perly withheld, a monition will be
granted commanding the person with-
holding them to produce them. See
The Lusitano, 1 W. Rob. 166.

(c) See post, MONITION. The appli-
cation is frequently made by motion at
chambers.

(d) Where it is sought to obtain a monition for the non-payment of costs, the taxed bill of costs, and the certificate of the registrar of the amount at which the bill is taxed, must be filed.

Service of

the monition.

cases affidavits should be filed setting out the facts relied upon in support of the application. The Court or judge having made an order for a monition, the solicitor of the party entitled to the monition should file in the registry a præcipe for a monition. The following Admiralty Court stamps should be handed in to the registry-A stamp of 58. for the præcipe, a stamp of 17. for the monition, and a stamp of 28. 6d. for the seal. The monition will then forthwith be prepared in the registry. It is issued under the seal of the Court, and commands the person to whom it is directed to do what the Court requires within a specified time (generally six days) from the date of service.

The monition may be served by the solicitor, his clerk, or agent (e). A monition cannot be served on Sunday, Good Friday, or Christmas Day. A monition should be served by showing the original to the person monished, and leaving a copy with him. If the monition is not obeyed, it may be enforced by attachment.

(e) If required to do so, the marshal will serve the monition. To procure service by the marshal the original and a copy should be left at the marshal's office, together with a præcipe for ser

vice. A five-shilling stamp should be affixed to the præcipe, and a stamp of 17. handed into the office as the fee for service.

CHAPTER XI.

ATTACHMENT.

ment.

ATTACHMENT is a process by which persons are punished Attachwho are guilty of contempt of Court. It is the only compulsory process ever resorted to in practice in the Admiralty Court (a), and it is used to enforce compliance with the decrees and orders of the Court as well as to uphold the authority of the Court.

ment to

enforce

to a mo

Where a person against whom a monition has been issued Attachneglects after due service of the monition to obey the monition, obedience may be enforced by attachment. In obedience order to enforce obedience to a monition by attachment, the nition. monition with the usual certificate of service indorsed on it, and signed by the solicitor or his clerk for him, should be filed in the registry. An affidavit that the monition has been duly served (b) and has not been obeyed should also be filed. With the documents the usual minute should be filed. A stamp of 5s. should be affixed to the minute and a

(a) The provisions of the 15th sect. of the Ad. Court Act, 1861, have never yet been acted upon.

(b) It seems to be very doubtful whether the Court will under any circumstances grant an attachment against a person for contempt in not having obeyed a monition where the monition has not been personally served. the Ad. Court Act, 1861, s. 20. The Ad. Rules (170) provide for substi tuted service of a citation in perso nam only. As to the practice at com

See

mon law, see the case of Birkett v.
Holme, 4 Dowl. 556. Patteson, J.,
there said: "I know that some time
since cases were decided in which it was
held that strictly personal service was
unnecessary, where it was clear that
the defendant was keeping out of the
way, to avoid being served. They have,
however, been since considered, and it
has been decided that the service must

be strictly personal." See Chitty's
Archbold, 12th ed., vol. 2, p. 1712 (n.).

Attachment in

other cases.

The attach

ment is issued from the registry.

stamp of 58. to the affidavit. An application may then be made to the Court on motion for an attachment.

When persons interfere with property under the arrest of the Court (c), where they refuse obedience to a release of property from arrest (d), where witnesses wilfully absent themselves after having been duly subpoenaed (e), the Court may, on application being made by any person aggrieved on motion supported by affidavits of the facts, order an attachment to issue against the person offending (ƒ).

Where the Court has ordered an attachment to be issued, the solicitor of the party on whose application the order has been made, should file in the registry a præcipe for an attachment. An Admiralty Court stamp of 58. in respect of the præcipe, a stamp of 17. for the attachment, and a stamp of 28. 6d. for sealing the attachment, should be handed in to the registry at the same time. The attachment will then forthwith be prepared in the registry. The attachment is issued under the seal of the Court; it is directed to all and singular justices of the peace, mayors, bailiffs, marshals, constables, and to all officers and ministers of the crown, and commands them to arrest the person against whom the attachment is issued, and to further orders from the Court. indorsed on the attachment

(c) The Petrel, 3 Hagg. 299; The Westmoreland, 4 No. Ca. 73; The Harmonie, 1 W. Rob. 179; The Bure, 14 Jur. 1123; The Mathesis, 2 W. Rob. 286.

(d) The Towan, 8 Jur. 222; The Tritonia, 4 No. Ca. 112.

(e) The Victor, cited Prit. Ad. Digest, vol. 2, p. 598.

(f) Whether, under the new practice, the Court will in cases of this nature grant an attachment in the first instance, has been questioned. But as the appli cation for an attachment must be made by motion, and as of course due notice of the motion must be given to the

keep him under arrest until

A warrant of commitment is and signed by the judge (g).

offending person, and he therefore has the opportunity of showing cause in the first instance, there seems to be no reason why the Court should not, in cases where it sees fit, at once make the order absolute. But see Ship Unknown, 1 Rob. 331; The Westmoreland, 4 No. Ca. 173; The Bure, 14 Jur. 1123.

(g) The Court will sign the commitment of a person who has been legally arrested in a foreign country, and brought under arrest within the jurisdiction of the Court. But when a person has been illegally arrested abroad and committed, the Court will direct his discharge. The Mathesis, 2 W. Rob. 287.

The warrant is directed generally to the keepers of all common gaols or prisons, so that the offender, when he is arrested, may be lodged in the nearest common gaol (h).

of the

The attachment may be executed by the marshal, or any Execution sheriff's officer, or any peace officer. If the attachment is to attachbe executed in London it is usual to have it executed by ment. the marshal (i); if it is to be executed in the country, it is usual to have it executed by a sheriff's officer or by a policeconstable. An attachment cannot be executed on a Sunday, Good Friday, or Christmas Day.

the per

tached.

The person attached remains in prison till he has purged Release of his contempt, or until the Court sees fit to order his release. son atIn general, a person attached may be released by order of the Court on such conditions as the Court may think proper when enough has been done to assert the authority of the law () but where a person has been attached for the nonpayment of money, it is doubtful whether the Court has the power, so long as the money remains unpaid, to order his discharge (1).

(h) 3 & 4 Vict. c. 65, s. 20.

(i) If the attachment is to be executed by the marshal, a præcipe for service should be filed in the marshal's office. A stamp of 58. is payable on the præcipe, and a stamp of 11. for the service.

(k) The Petrel, 3 Hagg. 299; The Juno, 1 Hagg. 23 (n.). The practice of the Court regarding the discharge from prison of persons arrested upon an attachment is not very clearly settled. But it is apprehended that where the Court orders the person attached to be discharged from prison, in order to obtain his release, a præcipe praying for an order of release should be filed in the registry, a five-shilling stamp in respect of the præcipe, and a one-pound

stamp for the release, and a half-crown
stamp for the seal should be handed
in at the same time, and thereupon a
release will be issued, directed to the
gaoler in whose custody the offender is.

(1) See The Plym, 2 W. Rob. 345.
By the 3 & 4 Vict. c. 65, s. 21, power
is given to the judge of the Court to
order the discharge of any person who
shall be in custody for contempt of the
Court for any cause other than for non-
payment of money, on such conditions as
to the judge shall seem just: provided
always, that the order for such discharge
shall not be deemed to have purged the
original contempt in case the conditions
on which such order shall be made b
not fulfilled.

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