made an order in the vacation for the return of any writ issued by the authority of the said act, or any writ of ca. sa., fi. fa., or elegit, on any day in the vacation, and such order shall have been duly served, but obedience shall not have been paid thereto, and the same shall have been made a rule of Court in the term then next following, it shall not be necessary to serve such rule of Court, or to make any fresh demand of performance thereon, but an attachment shall issue forthwith for disobedience of such order, whether the thing required by such order shall or shall not have been done in the meantime." If this is an order within the meaning of the rule of Court, it must be admitted that the sheriff is in contempt. But the writ of venditioni exponas is not mentioned in the rule, and the Court will not grant an attachment, without it is clearly within the meaning of it. Under the old practice, the money was always kept until the first day of term. Here it was paid on the 1st November, and the sheriff offered to pay any extra costs the parties had been put to. Richards, in support of the rule.-Although the writ of venditioni exponas is not expressly mentioned in the rule of Court, yet it is, in fact, a species of fieri facias, and part and parcel of that writ. In Charter v. Peeter (a), a fieri facias was awarded upon a judgment, by force whereof, the sheriff took the defendant's goods in execution, and before sale, the record was removed by writ of error into the Exchequer Chamber, and a supersedeas awarded. And the sheriff returned upon the fieri facias a seizure of the goods, and that they remained in his hands pro defectu emptorum, and he also returned that a supersedeas was awarded, &c. And hereupon it was prayed by the defendant that he might have restitution of his goods; but all the Court held," although this record be removed, and notwithstanding the supersedeas awarded, in regard it (a) Cro. Eliz. 597. 1838. HUGHES v. REES. came not unto the sheriff, until he had began to make execution, as appears by his return, that a venditioni exponas shall be awarded to perfect it: and although the plea roll be removed, yet it shall be awarded unto the return of the fieri facias, which remains filed in the office." So in Milton v. Eldrington (a), “ a fieri facias was directed to the sheriff of Middlesex, who returned that he had taken the goods and chattels of the defendant to the value of part of the debt, and that they remained in his custody for default of purchasers, and that before the return of this writ, a writ de non molestand. was directed that he should cease from further execution; which writ he returned annexed to the fieri facias; and this writ of non molestand. was awarded in the Bench by reason of a writ of error there brought by the defendant; but the record was never removed, because the return of the writ of error was on the morrow of the Ascension, and not before, and the fieri facias was returned xv. Paschæ. And it was much argued, whether the writ of venditioni exponas should be awarded in this case or not, because the writ of execution was not served, or the property of the goods altered, notwithstanding the seizure. And yet at length the writ of venditioni exponas was awarded." Lord ABINGER, C. B.-We think that Mr. Richards is right in his construction of the rule of Court. The object of the writ of venditioni exponas is to compel the sheriff to complete the execution, and must be considered as part and parcel of the fieri facias. The sheriff therefore was in contempt. It would have been better if the plaintiff had consented to accept any costs consequent upon the sheriff's laches, which it appears he was ready to pay; under the circumstances, this rule will be discharged, upon payment by the sheriff of the costs of the rule to return the writ of venditioni exponas, and also the costs of this application. (a) Dyer, 99. PARKE, B.-I think the writ of venditioni exponas is part of the writ of fieri facias. Rule discharged upon the above terms. 1838. HUGHES v. REES. In Re SCOTT and SILVER. MAULE had obtained a rule to shew cause why the the petition:" therefore, where the petitioner failed to appear, on the day appointed for taking the petition into consideration, and the order was in consequence discharged:-Held, that the Speaker had power to order the costs to be taxed, and on default of payment, to certify the recognizance into this Court, as forfeited. Semble, that under the above act, the legislature intended to give no remedy for these costs by action, as under the 53 Geo. 3, c. 71. (a) Which enacts, "That no proceeding shall be had upon any such petition, unless the person or persons subscribing the same, or some one or more of them, shall, within fourteen days after the same shall have been presented to the House, or within such further time as shall be limited by the House, personally enter into a recognizance to our Sovereign Lord the King, according to the form hereunto annexed, in the sum of 1,000l., with two sufficient sureties, in the sum of 500l. each, or four sufficient 1838. SCOTT v. SILVER. the day appointed for taking the petition into consideration, and, consequently, the order was discharged. The Speaker then caused the costs of the Sitting Member to be taxed, and delivered his certificate of the amount, pursuant to the 60th section (a) of the same act. The petitioner having neglected to pay the amount, the Speaker certified the recognizances into the Court under the 65th section (b). It was contended that the Speaker had power the House at such time or times as shall be fixed by the House for taking such petition into consideration; or in case such petition shall be withdrawn by the permission of the House; or in case such committee shall report to the House, that such petition appears to them to be frivolous and vexatious." (a) Which enacts, "That the costs and expenses of prosecuting or opposing any petition presented under the provisions of this act, and the costs, expenses, and fees which shall be due and payable to any witness summoned to attend before such committee, or to any clerk or officer of the House of Commons, upon the trial of any such petition, shall be ascertained in manner following: (that is to say,) that an application made to the Speaker of the House of Commons, within three months after the determination of the merits of such petition, by any such petitioner, party, witness, or officer, as before mentioned, for ascertaining such costs, expenses, or fees, the Speaker shall direct the same to be taxed by two persons, (describing who they are to be,) and the persons authorized and directed to tax SO such costs, expenses, and fees, shall, and they are hereby required to examine the same, and to report the amount thereof, together with the name of the party liable to pay the same, to the Speaker of the said House, who shall, upon application made to him, deliver to the party or parties, a certificate signed by himself, expressing the amount of the costs, expenses, and fees, allowed in such report, together with the name of the party liable to pay the same; and such certificate so signed by the Speaker, shall be conclusive evidence of the amount of such demands in all cases and for all purposes whatsoever." (b) Which enacts, "That if any petitioner or petitioners who shall have entered into such recognizance as aforesaid, shall neglect or refuse, for the space of seven days after demand, to pay to any witness who shall have been summoned in his or their behalf before the House, or such Select Committee, on the trial of such petition, the sum so certified as aforesaid, by the Speaker, to be due to such witness, together with the sum of 40s. per diem, for every day during which such to direct the costs to be taxed in those cases only in which there had been a determination of the merits of the petition; but that, as in the present case, the petitioner had not appeared, and the Committee had come to no determination, this was not a case within the act. Sir W. Follett shewed cause.-The case of a petitione. not appearing, is provided for by the 3rd section of the 9 Geo. 4, c. 22, which directs, that if within one hour after the time fixed for calling in the parties to proceed to the appointment of a Select Committee the petitioner shall not appear, the order for considering such petition shall be discharged. The 5th section enacts, that no proceeding shall be had upon any petition, unless the person subscribing the same shall, within the time there appointed, enter into a recognizance, with two sureties, for payment of all costs which shall become due to the opposing party in the case, among others, of his non-appearance at the time fixed for considering the petition. The 7th section directs the recognizances to be entered into before the Speaker, and the sufficiency of the sureties to be judged of, and allowed by him. The 60th section regulates the mode of ascertaining the costs. Two officers are appointed to tax the costs, and to report the amount, with the name of the petitioner or petitioners shall person or persons shall be held 1838. SCOTT V. SILVER. |