ence to a decree. According to an old writer, it seems that when the marshal "has taken up the body he has paid obedience to the writ, though he does not actually bring him up to the court; because the contempt only induces a commitment, which is satisfied by imprisonment in the county gaol." 15 If, however, he be specially ordered so to do, he must obey. Upon the return day of the writ the marshal should make a return thereto. He cannot detain the party named in the writ after the return day, unless by the court's order.16 There are three ordinary returns upon a writ of attachment: First, if the delinquent cannot be arrested, the marshal returns, "The withinnamed John Stiles is not found in my bailiwick," - this is termed a non est inventus, and upon it further process of contempt is grounded; second, if the delinquent has been arrested, but the marshal has either accepted bail for his appearance or keeps him in his own custody, the return is, "I have attached the within named John Stiles, as within I am commanded, whose body I have ready," - this is called accepi corpus; third, if the marshal has arrested the delinquent and lodged him in jail, or, finding him there, has lodged a detainer against him, the marshal returns, "I have attached the within-named John Stiles, whose body remains in [naming the jail or prison] in my custody." "17 Although the return is regularly made by the marshal, no matter by whom the writ has been executed, it will not be void if made by his deputy.18 If the marshal refuse to make any return he may be compelled to do so, by means of an order to show cause followed by an attachment against him.19 When the marshal or his deputy is a party to a cause, or probably when a writ of attachment is issued against either of them, the writs and precepts therein must be directed to such disinterested person as the court or any justice or judge thereof may appoint, and the person so appointed may execute and return them.20 In such a case the person serving the process should make affidavit thereof." A person arrested in 14 Rule 8; Cowdry v. Cross, 24 Beav. 445. 15 Gilbert's Ch. 83. 16 Ex parte Burford, 1 Cranch, C. C. 456. 17 Braithwaite's Pr. 272, 281. 18 Spafford v. Goodell, 3 McLean, 97. 19 U. S. v. Scroggins, 3 Woods, 529; Daniell's Ch. Pr. 470. 20 U. S. R. S., § 923; Rule 15. criminal proceedings to punish for a contempt is entitled to an examination before a magistrate if so entitled by the State practice.22 § 347. Sequestration.- The process of sequestration is a writ or commission issuing under the seal of the court, directed either to the marshal or to certain persons of the plaintiff's nomination, empowering him or them to enter upon and sequester the real and personal estate of a defendant (or some particular parcel of his lands), and to take, receive, and sequester the rents, issues, and profits thereof, and keep the same in their hands, or pay the same in such manner and to such persons as the court shall in its discretion appoint, until such defendant shall have performed some matter, previously ordered by the court, in the process specifically mentioned, for not doing whereof he is in contempt. This is one of the oldest writs of the court of chancery, and has been the cause of many conflicts between the English chancellors and the courts of common law. Much curious history and learning upon the subject invite the attention of the antiquarian; but, as the writ is now rarely used, little space will be devoted to it in this work. By the Equity Rules, whenever the marshal has returned non est inventus under a writ of attachment, a writ of sequestration may issue to compel obedience to a decree or order of the court. The writ, when not issued to the marshal, appoints two or more sequestrators. The usual number is four. The sequestrators are officers of the court, and as such are subject to new directions during their discharge of their functions, may be attached for disobedience or misconduct,' and, if resistance be made to them, may be aided by the court with the exercise of its process of contempt, or by a writ of assistance. Sequestrators must from time to time account 22 In re Acker, 66 Fed. R. 290. § 347. Hinde's Ch. Pr. 127; Hoffman's Ch. Pr., ch. iii, § 10; Daniell's Ch. Pr., ch. xxv, § 7. 6 Hinde's Ch. Pr. 138; Daniell's Ch. Pr., ch. xxv, § 7; Hoffman's Ch. Pr., ch. iii, § 10. Lord Pelham v. Lord Harley, 3 2 Gilbert's Forum Romanum, 78; Swanst. 291, n. Daniell's Ch. Pr., ch. xxv, § 7. 3 Rules 7 and 8. See Shainwald v. Lewis, 6 Fed. R. 766, 777. 4 Hoffman's Ch. Pr., ch. iii, § 10; Daniell's Ch. Pr., ch. xxv, § 5. 5 Daniell's Ch. Pr., ch. xxv, § 5. 8 Angel v. Smith, 9 Ves. 336; Lord Pelham v. Duchess of Newcastle, 3 Swanst. 293, n.; Rule 9. 9 Lord Pelham v. Duchess of Newcastle, 2 Swanst. 289, n.; Rule 9. for what comes into their hands, and pay into court such money as they receive.10 § 348. Writ of assistance.- The Equity Rules provide that "when any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court."1 This is a writ commanding the marshal to eject the defendant from the land and put the plaintiff in possession; and is executed in the same manner as a writ of habere facias possessionem is executed in favor of a successful plaintiff in the action of ejectment; 2 "in the execution of which the sheriff may take with him the posse comitatus, or power of the county, and may justify breaking open doors, if the possession be not quietly delivered. But, if it be peaceably yielded up, the delivery of a twig, a turf, or the ring of a door in the name of seisin, is sufficient execution of the writ." This writ is often used to put into possession receivers and sequestrators. It is not issued without an order for that purpose. It cannot issue against any but a party to the suit, or his representative, or one who came into possession under him since the suit was begun." The grantee of the purchaser at a foreclosure sale where the court has ordered the receiver to put him in possession of the purchased property, and where the court has retained jurisdiction of the suit, may obtain a writ of possession. The writ cannot be issued to put a party in possession of land beyond the territorial jurisdiction of the court, and all acts of the marshal beyond such jurisdiction are unauthorized notwithstanding the command of the writ." 10 Howell v. Lord Coningsby, 1 Fowl. Ex. Pr. 161; Deshrow v. Crommie, Bunb. 272. § 348. Rule 9. 2 Hunter's Suit in Equity (6th ed.), 168. 3 Bl. Com. 412. 4 Sharp v. Carter, 3 P. Wms. 375, 379, n.; Seton on Decrees (4th ed.), 441, 1563. 5 Lord Pelham v. Duchess of Newcastle, 3 Swanst. 289, n.; Seton on Decrees (4th ed.), 1562. 4 5 Seton on Decrees (4th ed.), 1562. Terrell v. Allison, 21 Wall. 289; Howard v. Railway Co., 101 U. S. 837, 849; Thompson v. Smith, 1 Dill. 458. 8 Farmers' L. & Tr. Co. v. Chicago & A. Ry. Co., 44 Fed. R. 653, 658. But see Van Hook v. Throckmorton, 8 Paige (N. Y.), 33; People v. Grant, 45 Cal. 97; Stanley v. Sullivan, 71 Wis. 585. 9 In re Anderson, 94 Fed. R. 487, 497. § 349. Action by court itself. In the year 1830, an act was passed in England, at the instance of Sir Edward Sugden, the author of Sugden on Powers, afterwards Lord St. Leonards, providing: "That when any person shall have been directed by any decree or order to execute any deed or other instrument, or make a surrender or transfer, or to levy a fine or suffer a recovery, and shall have refused or neglected to execute, make or transfer, or levy or suffer the same, and shall have been committed to prison under process for such contempt, or, being confined in prison for any other cause, shall have been charged with or detained un ler process for such contempt, and shall remain in such prison, the court may, upon motion or petition, and upon affidavit that such person has after the expiration of two calendar months from the time of his being committed under or charged with, or detained under such process, again refused to execute such deed or instrument or make such surrender or transfer, or levy or suffer such fine or recovery, order or appoint one of the masters in ordinary, or if the act is to be done out of London, then, if necessary, one of the masters extraordinary, to execute such deed or other instrument or to make such surrender or transfer, for and in the name of such person, and to levy such fine or suffer such recovery, in his name, and to do all acts necessary to give validity and operation to such fine and recovery, and to lead or declare the uses thereof: and the execution of the said deed or other instrument, and the surrender or transfer made by the said master, and the fine or recovery levied or suffered by him, shall in all respects have the same force and validity as if the same had been executed or made, levied or suffered, by the party himself; and within ten days after the execution or making of any such deed or other instrument or surrender or transfer, or levying or suffering such fine or recovery, notice thereof shall be given by the adverse solicitor to the party in whose name the same is executed or made; and such party, as soon as the deed or other instrument or surrender, transfer, fine or recovery shall be executed, made, levied, or suffered, shall be considered as having cleared his contempt, except as far as regards the payment of the costs of the contempt, and shall be entitled to be discharged therefrom, under any of the provisions of this act applicable to his case; and the court shall make such order as shall be just, touching the payment of the costs of or attending any such deed, surrender, instrument, transfer, fine, or recovery." "That where a person shall be committed for a contempt in not delivering to any person or persons or depositing in court or elsewhere, as by any order may be directed, books, papers, or any other articles or things, any sequestrator or sequestrators appointed under any commission of sequestration shall have the same power to seize and take such books, papers, writings, or other articles or things, being in the custody or power of the person against whom the sequestration issues, as they would over his own property; and thereupon such articles or things so seized and taken shall be dealt with by the court as shall be just; and after such seizure it shall be lawful for the court, upon the application of the prisoner, or of any other person in the cause or matter, or upon any report to be made in pursuance of this act, to make such order for the discharge of the prisoner, upon such terms, and, if it shall see fit, making any costs to the cause, as to the court shall seem proper.' "2 How far these acts will be followed by the Federal courts is a matter for future decision. The Supreme Court of the District of Columbia has power to appoint a trustee to execute an assignment of a patent-right, if the defendant refuses to do so after a sale of the patent-right under a creditor's bill, and the decree for the sale may contain a provision for the appointment of the trustee in case of such refusal together with a direction that the defendant execute the assignment. A Circuit Court of the United States has power to direct its marshal to remove buildings from land over which a complainant has a right of way. § 349a. Bills to carry decrees into execution.- A bill to carry a decree into execution is proper where, after a decree has been pronounced, it has happened that owing to some neglect of the parties to proceed upon the decree, their rights have become so embarrassed by subsequent events that no ordinary § 349. Acts of 1 Wm. IV., ch. 36, 15, R. 15, passed in 1830. v. Scott Paper Mfg. Co., 55 Fed. R. 553, 557; Lynde v. Columbus, C. & 2 Act of 1 Wm. IV., ch. 36, § 15, I. C. Ry. Co., 57 Fed. R. 993; Wilson R. 16. 3 See Rule 90; Shepherd v. Com'rs of Ross County, 7 Ohio, 271; Carpenter v. Strange, 141 U. S. 787; Sayle v. Martin, etc. Co., 151 Mass. 515; supra, §§ 8, 98, 325. 4 Ager v. Murray, 105 U. S. 126, 132. 5 Gormley v. Clark, 134 U. S. 338. |