Page images
PDF
EPUB

1839.

VI. That all writs may be tested on the day on which the same are issued, and may be made returnable imme diately as well out of term as in term ; but no bill be taken pro confesso against a defendant, unless there be ten days between the teste of each writ, if the defendant reside in town or within twenty miles thereof, and fifteen days in all other cases.

VII. That foreclosure causes, as well as other causes, when ready for hearing, may be advanced for hearing, and may be set down to be heard on days appointed for hearing short causes, on a certificate being produced, signed by the plaintiff's counsel, that the cause is a short cause.

VIII. That every subpæna shall contain three names, where necessary or required, and that a gross sum of 5s. 10d. shall be the amount allowed in costs for every subpæna as heretofore, in addition to which sum the solicitor suing out the writ shall be allowed one fee of 6s. 8d. for the præcipe and attendance on subpænas, as heretofore, where the number of names included therein sball not exceed nine; and if they shall exceed nine in number, then an additional fee of 6s. Sd.; and if they exceed eighteen, a further fee of 6s. 8d., and so on in proportion for every additional number of nine names included in such subpænas.

IX. That all Orders to refer an answer or other pleading or matter depending before the Court for scandal or impertinence, shall contain a direction for the Master to expunge any such scandalous or impertinent matter as he shall find therein, and which shall have been the subject of the reference, and the Master shall be at liberty, without further Order, to tax the costs of such reference and consequent thereon, and the same shall be paid by the party against whom the said Order of reference shall have been obtained, if the said answer or other pleading or matter shall be certified to be scan

1839.

dalous or impertinent, or by the party obtaining the said
Order of reference, if the said answer or other pleading
or matter shall be certified not to be scandalous or imper-
tinent, and the same shall be recoverable in like manner as
other costs; but such scandalous or impertinent matter
shall not be expunged nor costs taxed until the expiration
of four days from the filing of the Master's certificate of
such scandal or impertinence, in order that the adverse
party may have an opportunity of filing exceptions to such
certificate, which exceptions he shall be at liberty to file
without obtaining an Order for liberty to file the same.
(Signed)

ABINGER.
J. PARKE.
E. H. ALDERSON.
J. GURNEY.
W. H. Maule.

1839. June 12th.

Wednesday, the 12th day of June, 1829. THE Court doth hereby order and direct in manner following, that is to say:

1. That every person to whom in any cause or matter pending in this Court, any sum of money or any costs have been ordered to be paid, shall, after the lapse of one month from the time when such order for payment was duly passed and entered, be entitled by his clerk in Court to sue out one or more writ or writs of fieri facias, or writ or writs of elegit, of the form hereinafter stated, or as near thereto as the circumstances of the case may require (a).

(a) The forms of the writs The teste in the Exchequer is, being, with the exception of the “Witness, James Lord Abinger, teste, the same as in Chancery, at Westminster, the are here omitted. For the writs

in the

year of our in Chancery, see Levan's Reports. reign.”

day of

[ocr errors][ocr errors]

1839.

II. That upon every such order hereafter to be entered, the entering clerk shall, at the request of the party leaving the same, mark the day of the month and year on which the same shall be so left for entry, and no writ of fieri facias ore legit shall be sued out upon any such order unless the date of such entry shall be so marked thereon as aforesaid.

III. That such writs, when sealed, shall be delivered to the sheriff or other officer, to whom the execution of the like writs issuing out of the superior Courts of Common Lat belongs, and shall be executed by such sheriff or other officer as nearly as may be in the same manner in which he doth or ought to execute such like writs ; and such writs, when returned by such sheriff or other officer, shall be delivered to the clerks in Court by whom respectively they were sued out, or be left at their respective seats, and shall thereupon be filed as of record in this Court. And that for the execution of such writs, such sheriff or other officer shall not take or be allowed any fees other than such as are or shall be from time to time allowed by lawful authority for the execution of the like writs issuing out of the superior Courts of Common Law.

IV. That if it shall appear, upon the return of any such writ of fieri facias aforesaid, that the sheriff or other officer hath by virtue of such writ seized but not sold any goods of the person ordered to pay such sum of money or costs as aforesaid, the person to whom such sum of money or costs is payable shall, immediately after such writ with such return shall be filed as of record, be at liberty by his clerk in Court to sue out a writ of venditioni exponas in the form hereinafter stated, or as near thereto as the circumstances of the case may require.

V. That on every such writ of fieri facias and clegil, so to be issued as aforesaid, there shall be indorsed the words "By the Court," and also thereunder the calling

1839.

and place of residence of the party against whom such writ shall be issued, and also the name and residence or place of business of the solicitor at whose instance the same shall be issued, and the name of the clerk in Court issuing the same, and that every such writ be also indorsed for the sum to be levied, costs of writ, sheriff's poundage, &c., according to the form used upon like writs issuing out of the superior Courts of Common Law.

VI. That for every such writ of fieri facias or ven-
ditioni exponas, so to be issued as aforesaid, there shall be
allowed to the clerk in Court issuing the same, the sum of
eight shillings and sevenpence, and for every such writ of
elegit the sum of one pound ten shillings, and that there
be allowed to the solicitor at whose instance any such
writ of fieri facias, elegit, or venditioni exponas shall be
issued, the sum of six shillings and eightpence for instruc-
tions for the said writ, and that there be also allowed to
such solicitor the further sum of six shillings and eight-
pence for attending to procure a warrant, and for attend-
ing to instruct the officer charged with the execution of
such writ.
(Signed)

A BINGER.
J. Parke.
E. H. ALDERSON.
J. GURNEY.
W. H. MAULE.

REPORTS OF CASES

ARGUED AND DETERMINED

IN THE

Court of Exchequer in Equity.

1837. Dec. 18th, 20th, 21st,

22nd.

1838. SKEFFINGTON O. WHITEHURST and Others.

Jan. Ist,

Feb. 7th. THOMAS HUBBERT, of Mark-lane, in the city of T. H., who was London, being in partnership with his natural son, Alex- with A. H., died

in August, 1790, intestate, and a batchelor, leaving Lady S., wife of Sir W. S., and Mrs. D., wife of Mr. D, his next of kin. Soon after the death of T. H., upon a full investigation of the partnership affairs, they were found to be insolvent. The creditors then, by a composition deed, dated the 31st December, 1790, agreed to accept a composition of 15s. in the pound, payable by instalments by A. H. and one T. R., who had joined A. H. as parıner, and to allow A. H. to take out letters of administration of the estate of Ť. H. At the time of this transaction, the intestate's estate had a doubtful claim upon Sir W. S. in respect of an unsettled account; and, on the other hand, D. had a claim upon the intestate's estate, the amount of which was not ascertained. On the day previous to the execution of the composition deed, Lady S. and Mrs. D., in the presence of their respective husbands, executed a proxy of renunciation of their right to administer the estate of the intestate; and on the same day, by an indenture made between Sir W. and Lady S. of the first part, A. H. of the second part, and T. R. of the third part, Sir W. S. covenanted with A. H. that he would release all claims on the part of himself and wife on the personal estate of the intestate, in consideration that A. H. should, within one month after obtaining letters of administration of the intestate's estate, release the claim of that estate against Sir W. S. Except as appeared from an attorney's bill of costs, there was no evidence of any release being executed either by Sir W. S. or A. H. in pursuance of this deed. In January, 1791, D., by a deed poll, reciting the insolvency of the late partnership, and that he had taken the joint bond of A. H. and T. R. in satisfaction of his demand on the same, in consideration of that bond, released all claims whatsoever which he had upon the partnership estate, and upon the estate and effects of T. H. Immediately after these arrangements, A. H. took out letters of administration of the intestate's effects; and in order, as appearel, to pay the composition, raised sums of money, by way of annuity and mortgage, on certain leaseholds of the intestate; T. R. being a party to, and joining in, the annuity and mortgage deeds. In 1793, a further arrangement was made between A. H., T. R., and the creditors; and soon afterwards, A. H. and T. R. dissolved partnership, T. R. remaining in exclusive possession of the leasehold premises. T. R. subsequently purchased the fee simple of the premises, and, after exercising various acts of ownership, sold them in 1820. After the dissolution of the partnership of A. H. and T. R., the former took no further steps in any of these transactions, and died in 1806. After the year 1791, when D. executed his deed poll, neither Sir W. S. nor D., who VOL. III.

B

EQ. EX.

« PreviousContinue »