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No. I. sions in Wales or the town of Berwick-upon-Tweed, where it may I W.4, c. 38. appear in the case of any such prisoner, on the hearing, that the proof

of notice to creditors is imperfect, or that any other matter or thing ought to be done by or on behalf of such prisoner before he or she is actually discharged from custody, that nevertheless adjudication should be made conditional upon such matter or thing being performed, and that the hearing of such case should stand adjourned only on failure therein : And whereas doubts have arisen as to the competency of proceeding in manner above mentioned; it is hereby declared and enacted, That where it shall appear to the said court, commissioner, or justices, at the hearing of the matters of the petition of any such prisoner, that certain matters or things ought to be performed by or on behalf of such prisoner, before he or she is entitled to be actually discharged from custody, but that nevertheless it is expedient not to adjourn the hearing of such case absolutely to some future occasion without the opportunity of such discharge being sooner had by doing such things as aforesaid, it shall and may be lawful for the said court, commissioner, or justices, to pronounce adjudication, without then issuing the order and warrant pursuant thereto, and that such adjudication may be directed to be conditional on the performance of such matters or things as aforesaid, and that on the nonperformance thereof the hearing of such case shall stand adjourned according to the direction made in that behalf; and that all proceedings heretofore had in manner aforesaid, in the matters of the petitions of any prisoners petitioning the said court, under any act or acts for the relief of insolvent debtors, shall be deemed good and valid

to all intents and purposes. Court may di- V. And whereas it may often happen that some interest in lands and rect convey

tenements may become vested in the provisional assignee of the said ance by provi- court, which appears to be of no value to creditors, but nevertheless it sional assignee may be reasonable and expedient that the said provisional assignee where no should make or join in making some conveyance or assignment of the assignee is ap- same, and that the same should be done without the expence attending pointed.

advertisements and meetings of creditors as prescribed by the said firstmentioned act in certain cases; be it therefore enacted, That it shall and may be lawful for the said court, at any time after the day gazetted for the hearing of the matters of the petition of any insolvent debtor, if no creditor shall have become assignee of his or her estate and effects, and if it shall appear fit, upon such notice given by advertisement or otherwise to the creditors or any of them as the said court shall in any case direct, to order the said provisional assignee to make or join in making any conveyance or assigninent of any such interest as to the said court may appear just and reasonable, without observing the provisions of the said first-mentioned act as to the sale of real property by the provisional

or other assignees of the estates of insolvent debtors. Assignments VI. And it is further declared and enacted, That all assignments and made by pro- conveyances heretofore made or to be made by such provisional assignee visional as

in any such cases, by order of the said court, shall be and the same are signees de

hereby declared to be good and valid to all intents and purposes; any clared valid.

thing in the said first-mentioned act or in any other act to the contrary

notwithstanding. Assignments by VII. And whereas it is expedient to prescribe a form of conveyance provisional

and assignment from the provisional assignee to any other assignee or assignee to be

assignees when appointed by the said court, and also to remove any in the form an- doubts as to the validity or effect of any conveyances or assignments at nexed to this

any time heretofore made and executed by the said provisional assignee

virtue of any order of the said court; be it therefore declared and enacted, That every conveyance and assignment hereafter to be made and executed by the provisional assignee for the time being to any other assignee or assignees, by virtue of any order of the said court, shall be in such form as is to this act annexed; and that every such conveyance and assignment, and also every conveyance and assignment at any time heretofore made and executed by the provisional assignee for the time

act.

being, in obedience to any order of the court for relief of insolvent No. II. debtors, shall be deemed and taken to be valid and effectual to all intents 1 W.4, c. 38. and purposes whatever, and fully and effectually to vest and to have vested all and every estate and estates, real and personal, and all and every right, title, interest, and trust in and to the same, of what nature or kind soever, to which the insolvent debtor in each case respectively shall or may be or shall or may have been entitled in any manner or by any means whatsoever, or which such insolvent debtor shall or may be or shall or may have been required by law to convey and assign in trust for his or her creditors. VIII. And whereas it may happen that the chief or other commis. In case of ill

ness of a comsioner for the relief of insolvent debtors may, by illness or other reasonable cause, be for a time disabled from performing his duties, whereby another person

missioner, the business of the said court would be delayed: And whereas if such

may be apdisability should occur to any such commissioner proceeding on his

pointed to circuit, the suitors of the said court would be much prejudiced, unless execute the some person should be authorized forthwith to undertake the duties of duties. the said chief or other commissioner on his circuit; be it therefore further enacted, That if such disability as aforesaid shall occur to such chief or other commissioner at any time, not being the time of his circuit, it shall be lawful for any fit person, being a barrister at law, and appointed by one of his Majesty's principal secretaries of state, to execute the duties of such chief or other commissioner during such disability; and that if such disability shall occur during the time appointed for the circuit of such chief or other commissioner, it shall be lawful for any fit person, being a barrister at law, and nominated by such chief or other commissioner, to execute the duties of such chief or other commissioner on such circuit as aforesaid during such disability, and that all things done according to the provisions of this act and of the said act hereby continued, by such person so appointed or nominated as aforesaid, as the case may be, during such disability as aforesaid, shall be good and valid to all intents and purposes as if the same had been done by such chief or other commissioner: Provided always, that such chief or other commissioner, if such disability as aforesaid shall occur during the time appointed for his circuit, shall forthwith state the same, together with the cause thereof, and such nomination as aforesaid, in writing, and shall subscribe such statement, and shall send the same forthwith by his Majesty's post to one of his Majesty's principal secretaries of State.

X. That during the continuance of this act no person shall be entitled Prohibiting to be discharged as an insolvent debtor, on his or her own petition or ap- persons froin plication, under or by virtue of the statute passed in the thirty-second being disyear of the reign of king George the second, commonly called “The charged under Lords Act,” or of any other statute since passed for extending or con- 32 G. 2, c. 28. tinuing the same.

XI. That the said recited act and this act shall be and the same are Continuance of hereby continued for two years, and from thence to the end of the then act. next session of parliament.

day of

SCHEDULE TO WHICH THIS ACT REFERS. Form of Conveyance and Assignment by the Provisional Assignee THIS indenture, made the in the year of our Lord between

provisional assignee of the estate and effects of insolvent debtors in England, of the one part, and

of the other part. Whereas by indenture bearing date the

between an insolvent debtor, then a prisoner in the

of the one part, and the said

such provisional assignee as aforesaid, of the other part, all the estate, right, title, interest, and trust

day of

No. II. of the said insolvent debtor in and to all the real and personal estate and 1 W. 4, c. 38. effects of the said insolvent debtor, in possession, reversion, remainder,

or expectancy, except the wearing apparel and other such necessaries of the said insolvent debtor and family not exceeding in the whole the value of twenty pounds, were, among other things, conveyed and assigned to the said

as such provisional assignee as aforesaid, his successors and assigns: Now this indenture witnesseth, that in obedience to an order of the court for relief of insolvent debtors, he the said

at the request and with the consent of the said testified by

sealing and delivering these presents, hath conveyed, assigned, transferred, and set over, and by these presents doth convey, assign, transfer, and set over, unto the said

his heirs, executors, administrators, and assigns, all the estate, right, title, interest, and trust of, in, and to all the real and personal estate and effects whatsoever and wheresoever, and of what nature or kind soever, present and future, which by virtue of the said herein-before in part recited indenture now are in any way vested in the said

as such provisional assignee as aforesaid, together with their and every of their rights, members, and appurtenances ; to have and to hold, receive and take, all and every the said estate, effects, and premises, and every part thereof, conveyed, assigned, transferred, and set over, or mentioned or intended to be hereby conveyed, assigned, transferred, or set over, with their and every of their rights, members, and appurtenances, unto the said

his heirs, executors, administrators, and assigns, according to the respective natures, properties, and tenures thereof; in trust nevertheless for the use, benefit, and advantage of the creditors of the said insolvent debtor who shall be entitled to share in a dividend of the said estate and effects, and to and for such other uses, intents, and purposes, and in such manner and form, as are in and by the said indenture expressed of and concerning the same, and to and for no other use, intent, or purpose whatsoever. In witness whereof the said parties have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered by the

said

in the presence of
Signed, sealed, and delivered by the

said
in the presence of

[No. III.] 1 W. IV. c. 70.--An Act for the more effectual Administration of Justice in England and Wales.

[23rd July 1830.] Justification of

XII. That bail may be justified before a judge in chambers, or in some bail before

other convenient place to be by him appointed, as well in terın as in judge in cham

vacation, and whether the defendant be actually in custody or not. bers.

XXI. That a defendant, who shall have been held to bail upon any Regulations as

mesne process issued out of any of his Majesty's superior courts of reto rendering in discharge of

cord, may

be rendered in discharge of his bail, either to the prison of bail, defendant the court out of which such process issued, according to the practice of not being in

such court, or to the common gaol of the county in which he was so custody.

arrested, and the render to the county gaol shall be effected in the manner following ; that is to say, the defendant, or his bail, or one of them, shall for the purpose of such render obtain an order of a judge of one of his Majesty's superior courts of Westminster, and shall lodge such order with the gaoler of such county gaol, and a notice in writing of the lodgment of such order, and of the defendant's being actually in custody of such gaoler by virtue of such order, signed by the defendant, or the bail, or either of them, or by the attorney or agent of any or

No. II. either of them, shall be delivered to the plaintiff's attorney or agent, 1 W. 4, c. 70. and the sheriff or other person responsible for the custody of debtors in such county gaol shall, on such render so perfected be duly charged with the custody of such defendant, and the said bail shall be thereupon wholly exonerated from liability as such.

XXII. That a defendant who shall hereafter be in custody of the As to rendering gaoler of the county gaol of any county in England or in the principa- in discharge of lity of Wales, by virtue of any proceeding out of any of his Majesty's bail, defendant superior courts of record, may be rendered in discharge of his bail'in being already in any other action depending in any of the said courts, in the manner custody. herein-before provided for a render in discharge of bail; and the keeper of such gaol, or such sheriff or other person responsible for the custody of debtors as aforesaid, shall on such render be duly charged with the custody of such defendant, and the said bail shall be thereupon wholly exonerated from liability as such.

[No. IV.] 2 W. 4, c. 39.-An Act for Uniformity of Pro

cess in Personal Actions in His Majesty's Courts of Law at Westminster (1).

[23rd May 1832.] WHEREAS the process for the commencement of personal actions in

His Majesty's superior courts of law at Westminster is, by reason of its great variety and multiplicity, very inconvenient in practice; for Serviceable remedy thereof be it enacted, &c., That the process in all such actions process for the commenced in either of the said courts, in cases where it is not intended commence. to hold the defendant to special bail, or to proceed against a member of ment of per

sonal actions. parliament according to the provisions contained in the statute passed in the sixth year of the reign of His late Majesty King George the Fourth, intituled An Act to amend the Laws relating to Bankrupts, shall, whether the action be brought by or against any person entitled to the privilege of peerage or of parliament, or of the court wherein such action shall be brought, or of any other court, or to any other privilege,orby or against any other person, be according to the form contained in the schedule to this act annexed marked No. 1, and which process may issue from either of the said courts, and shall be called a writ of summons (2); and in every such writ, and copy thereof, the place and county of the residence or supposed residence of the party defendant, or wherein the defendant shall be or shall be supposed to be, shall be mentioned (3); [and such writ shall be issued by the officer of the said courts respectively by whom process serviceable in the county therein mentioned hath been heretofore issued from such court) (4); and every such writ may be served in the manner heretofore used in the county therein mentioned, or within two hundred yards of the border thereof (5), and not elsewhere, and the person serving the same shall and is hereby required to indorse on the writ the day of the month and week of the service thereof.

(1) See post, the 3 & 4 W.4, c. 67, amending the present act.

(2) The writ of summons is now the commencement of the action, and that is reckoned from the time when the writ is sued out, and not from the time when it is served ; Alston v. Underhill, 2 Dowl. 26; 3 Tyt. 427 ; 1 Cr. & M. 492. And a defendant cannot avail himself

of a ground of defence not perfected until after the writ was issued;

Worsick v. Beswick, 10 B. & C. 676. The declaration must correspond with the form of action specified in the writ, and if not it is irregular, and the court will set it aside, leaving the plaintiff to declare on the writ if he can do so, according to his cause of action; Thompson v. Dicas, 3 Tyr. 873; 1 Cr. & M. 768.

(3) The addition of the defendant need not be inserted in the writ of summons; it is sufficient to state his residence; Morris v. Smith, 2 Cr. M. & R. 120.

(4) The part within brackets is repealed by the 3 & 4 W. 4, c. 67, s. 1, post. (5) See the 20th section, post.

cess.

No. IV. II. That the mode of appearance to every such writ, or under the 2 W. 4, c. 39. authority of this act, shall be by delivering a memorandum in writing

according to the form contained in the said schedule, and marked No. 2, Mode of ap

such memorandum to be delivered to such officer or person as the pearance to ser- court out of which the process issued shall direct, and to be dated on viceable pro- the day of the delivery thereof

III. "That in case it shall be made appear by affidavit, to the satisAppearance faction of the court out of which the process issued, or in vacation, of may be en any judge of either of the said courts, that any defendant has not been forced by writ personally served with any such writ of summons as herein-before menof distringas

tioned, and has not, according to the exigency thereof, appeared to the in case a de

action, and cannot be compelled so to do without some more efficacious fendant cannot be served with process, then and in any such case it shall be lawful for such court or the writ of

judge to order a writ of distringas (1) to be issued, directed to the sheriff of the county wherein the dwelling house or place of abode of such defendant shall be situate, or to the sheriff of any other county, or to any

summons.

(1) In order to obtain the distringas, there must be an affidavit, and it must show that at least three attempts have been made to serve the defendant with the writ of summons, by calling at his dwelling-house or place of abode; Anon. 1 Dowl. 513; Thomas v. Thomas, 2 Mo. & S. 730; Johnson v. House, 1 c. 8; M. 26; 1 Dowl. 641, S. C. Service at the office of an employer, in such a case, not being sufficient ; Thomas v. Thomus, 2 Mo. & S. 730. It must also show that on each of the first two calls, deponent apprised the person whom he saw of the nature of his business; Jolinson v. Rouse, 1 Dowl. 641; 1 0.& M. 26; and made an appointment to call again, in order to see the defendant; ib. ; and he must appoint the day and hour at which he will make his subsequent calls; Willis v. Bowman, 2 Dowl. 413; and that on the last call (which must appear to have been eight days at least before the application to the court; Brian v. Stretton, 3 Tyr. 163; 1 C. & M. 74; 1 Dowl. 642,) a copy of the writ was left at the defendant's residence; Anon. I Dowl. 513; Street v. Lord Alvanley, ib. 638; 3 Tyr. 162; 1 C. & M. 27, S. C.; Hill v. Mould, 3 Tyr. 162; 2 Dowl. 10; 1 C. & M.617, S. C. (held on conference with all the judges.) And to found an application for a distriogas, it must be shown that the defendant is at home, or in the neighbourhood, during the time the party calls to serve him ; Price v. Bouer, 2 Dowl. 1.

The answers given to the deponent, on the different applications, must be stated in the affidavit; Pagden v. Whalley, 1 Leg. Er. N. S. cited in Tidd, Sup. 1833, 79, per Bailey, B. And he must not only swear that he has not been able to serve defendant with a copy of the writ, but must state in his affidavit circumstances to satisfy the court, or a judge, that the defendant keeps out of the way to avoid being served ; Anon. Dowl. 513; Johnson v. Rouse, 1 C. & M. 26; 1 Dowl. 641 ; 3 Tyr. 161, S. C.

When the residence of the defendant is unknown, endeavours must be made to serve the defendant personally, before the distringas can be obtained. What are sufficient endeavours to entitle a plaintiff to a distringas in such a case, does not appear to have been yet decided by the courts; 1 Dowl. 555.

The attempts to serve a summons in order to obtain a distringas may be made on the same day, it appearing that the defendant is keeping out of the way; White v. Western. 2 Dowl. 451. If, upon calling to serve a writ of summons, the answer given is, that the defendant is out of town, it must be shown to the court from inquiries made that there is reason to believe the answer to be false ; Smith v. Hill, 2 Dowl. 225. A distringas will not be granted on an affidavit, merely stating the defendant to be absent in Ireland, without showing that he has gone there to avoid his creditors, although he may have a residence in town, at which unsuccessful attempts to serve him have been made; Evans v. Fry, 3 Dowl. 581.

The return of non est inventus or nulla bona is not alone sufficient to entitle the plaiutiff to an appearance; Daniels v. Varity, 3 Dowl. 26.

In executing a distringas, it is sufficient that the sheriff takes all the property on the premises, though it amount to less than forty shillings, and on the sheriff's return the plaintiff will be entitled to enter an appearance; Jones v. Duer, 2 Dowl. 445.

Where a defendant is abroad, a distringas may be obtained on a proper affidavit, either to coir pel his appearance, or for the purpose of proceeding to outlawry. If he be not abroad, a distringas for the purpose of outlawry, will not, seems, be granted ; and where there is reason to believe he is abroad, a distringas to compel an appearance, it is said, will not be allowed; one state of circumstances or the other in ust be made out; Fraser v. Case, 1 Dowl. 725; 9 Bing. 464 ; 2 Moore & S. 730, S. C. Accordingly, in a case in which it was not clear, on the face of the affidavit, whether the defendant was in this country or abroad, the court put the plaintiff to make his election as to the purpose for which he sought to obtain the distringas; ib. The affidavit must also state, when the de. fendant is abroad, not only that he went thither for the purpose of avoiding the demands of his credi. tors, but it must likewise satisfy the court, or a judge, by a statement of the circumstances, that he keeps

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