Imperial Acts Adoption Act 1834 No 13a (NSW)
No. VIII.
An Act for adopting and applying certain Acts of Parliament passed in the Eleventh Year of the Reign of His late Majesty and First Year of the Reign of His present Majesty and in the First and Second Years of the Reign of His present Majesty respectively in the Administration of Justice in New South Wales in like manner as other Laws of England are applied therein. [25th, July, 1834.]
| and in the first year of the reign of H i s present Majesty K i n g | WH E R E A S year of t he re ign of H i s late Majesty K i n g George t he F o u r t h | ||
| Wi l l i am t h e F o u r t h in t i tu led respectively " An Act for altering " and amending the Law regarding Commitments by Courts of " Equity for Contempts and taking Bills pro confesso" and " An " Act for making better provision for the disposal of the undisposed of " residues of the Effects of Testators " and " An Act to alter and " amend the Laic relating to illusory Appointments" and "An Act for " consolidating and amending the Laws for facilitating the payment " of Debts out of Heal Estate" and " An Act for amending the Laws " respecting Conveyances and Transfers of Estates and, Funds vested " in Trustees and Mortgagees and for enabliny Courts of Equity to " give effect to their Decrees and Orders in certain cases" and " An " Act for consolidating and, amending the Law relating to Property " belonging to Infants Femmes Coverts Idiots Lunatics and persons of " unsound mind" and a certain other A c t of Pa r l i amen t was passed in | |||
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| " damns" and a cer tain other Ac t of Pa r l i amen t was passed in t he first and second years of t he reign of H i s said present Majesty in t i tu led " An Act to enable Courts of Law to give relief against adverse Claims " made upon persons having no Interest In the subject of such Claims" A n d whereas it is expedient to adopt and apply the said recited Acts of Pa r l i amen t in t he adminis t ra t ion of jus t i ce in New South Wales Be it therefore enacted by H i s Excel lency the Governor of New South Wales wi th t he advice of the Legislat ive Council thereof Tha t t he said reci ted Acts of Pa r l i amen t and every clause provision and enac tment there in respectively contained shall be and the same are and is hereby adopted and directed to be applied in t h e adminis t ra t ion of jus t ice in | |||
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| Eng land are there in applied. | |||
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certain Acts of Pa r l i ament were passed in t he eleventh
A N N O U N D E C I M O G E O R G I I I V . 11EGIS. E T A N N O
P B J M O G U L I E L M I I V . 11EGIS.
C A P . X X X V I .
An Act for altering and amending the Law regarding Commit
ments by Courts of Equity for Contempts and the taking
Bills pro confesso. [16th July, 1830.]
WH E R E A S by two several Ac ts t he one passed in t h e fifth year of t he re ign of H i s la te Majesty George t h e Second in
t i tu led " An Act for making Process in Courts of Equity effectual
" against persons who abscond and cannot be served therewith or " refuse to appear" and the other passed in t h e forty-fifth year of the
reign of his late Majesty K i n g George the Th i rd in t i tu led " An Act to " amend an Act passed in the fourth year of His present Majesty
" intituled ' An Act for preventing inconveniences arising in cases of
" ' merchants and such other persons as are within the description of
"'the Statutes relating to Bankrupts being entitled to privilege of
" 'Parliament and becoming Insolvent and to prevent delay in the
" 'entering appearances in actions brought against persons having
" 'privilege of Parliament' " cer ta in provisions were made for en te r ing appearances and t a k i n g Bills of E q u i t y pro confesso A n d whereas i t is expedient to a l ter and amend and to consolidate the Laws on t h a t subject and it is also expedient to al ter and amend t h e Law re la t ing to Commitments by Cour t s of E q u i t y for Contempts Be it therefore enacted by the K i n g ' s Most Exce l len t Majesty by and wi th t h e advice and consent of t he Lords Spir i tual and Tempora l and Commons in th is present P a r l i a m e n t assembled and by the au thor i ty of t h e same T h a t t he whole of t h e said recited Act of t he fifth year of K i n g George t h e Second and so m u c h of t he said recited Act of t h e forty-fifth year of H i s la te Majesty George t h e Thi rd as relates to Cour ts of E q u i t y and the reading of bills of discovery as evidence shal l be and tbe same a re hereby repealed b u t so as no t to affect any th ing done or executed in pursuance thereof respectively and any sui t m a t t e r or t h i n g now in progress unde r the au thor i ty of t he said Acts respectively and no t completed shall or m a y be completed unde r the powers of th i s A c t and all t he powers of th i s Act shall or may be exercised as well in regard to new suits commi tments discharges conveyances fines recoveries ma t t e r s or th ings as to sui ts commi tments discharges
remain ing to be made done or perfected whe ther t he powers of t he conveyances fines recoveries ma t t e r s or th ings now subsis t ing or said Acts or any of t h e m respectively shall or shall not have been
applied there to .
2. A n d be i t fur ther enacted Tha t t h e W a r d e n of t he Elect
P r i son shall keep a regis ter of t he names of all persons commit ted by the Cour ts of E q u i t y for con tempts s t a t ing t he dates and the g rounds of the i r several commi tmen t s and the dates of thei r respective dis charges and shall on t he twent ie th day of J a n u a r y t he twen t i e th day
of Apr i l t he twent ie th day of J u l y and the twent ie th day of October in every year m a k e a repor t to the Lord Chancellor of t he names and descriptions of such prisoners in his custody on each of such days respectively wi th t h e causes and dates of thei r respective commi tmen t s .
3. " A n d whereas sometimes persons have w i t h d r a w n them-
" selves beyond t h e seas or otherwise absconded to avoid appear ing in " Cour ts of E q u i t y or be ing served wi th process for t h a t purpose " or being b rough t into Court by habeas corpus have refused to " a p p e a r " for remedy of the inconvenience thence ensuing be i t fur ther enacted Tha t if in any suit which ha th been or hereafter shal l
be
be commenced in any Cour t of E q u i t y any defendant against w h o m any subpoena or other process shall issue shall not cause his appearance to be entered upon such process wi th in such t ime and in such m a n n e r as according to t he rules of t h e Cour t t he same ough t to have been entered in case such process had been duly served and an affidavit or affidavits shall be made to t he satisfaction of such Cour t t h a t such defendant is beyond t h e seas or t h a t upon enqui ry a t his usua l place of abode he could not bo found so as to be served wi th such process and t h a t there is j u s t ground to believe t h a t such defendant is gone out of t he rea lm or otherwise absconded to avoid being served wi th t he process of such Cour t t hen and in such case t he Cour t out of which such process issued may m a k e an order direct ing and appoin t ing such defendant to appear a t a cer ta in day there in to be named and a copy of such order shall wi th in fourteen days after such order made be inserted in t h e
London Gazette and publ ished on some Lord 's L a y immedia te ly after
Divine Service in t he Par i sh Church of t he Par i sh where such defendant made his usua l abode wi th in t h i r t y days nex t before such his absent ing and also a copy of such order shall wi th in t he t ime aforesaid be posted u p as after ment ioned ( tha t is to say) a copy of every such order made in H i s Majesty's H i g h Cour t of Chancery Cour t of Exche quer or t h e Cour t of t he Duchy Chamber of Lancas te r at Wes tmins t e r shall be posted u p in some publ ic place at t h e Royal E x c h a n g e in London and a copy of every such order m a d e in any of the Cour ts of E q u i t y of t he Counties Pa la t ine of Chester Lancas te r and D u r h a m or of t he Great Sessions in Wales shall be posted u p a t some publ ic place in some m a r k e t town wi th in t he jur isdic t ion of t he Cour t by which such order was m a d e and nearest to the place where such defendant made h i s usua l abode as aforesaid such place of abode being also wi th in t h e jur isdic t ion of t h e said Cour t a n d if the defendant do not appear wi th in t he t ime l imited by such order or wi th in such fur ther t ime as t he Court shall appoint t hen on proof made of such publ ica t ion of such order as aforesaid t h e Court being satisfied of
t h e t r u t h thereof may order t h e plaintiff 's bill to be t aken pro confesso
| a n d m a k e such decree the reupon as shall be t h o u g h t j u s t and may the reupon issue process to compel t h e performance of such decree ei ther by an immedia te sequestrat ion of t h e real and personal es ta te and effects of t h e pa r ty so absent ing (if any such can be found) or such p a r t thereof as may be sufficient to satisfy t h e demands of t he plaintiff in t h e said suit or by causing possession of t he es ta te or effects demanded by t h e bil l to be delivered to t he plaintiff or other- | wise as t h e n a t u r e of t he case shall requi re and the said Cour t may | likewise order such plaintiff to be paid and satisfied his demands out | ||
| of t h e es ta te or effects so sequestered according to t h e t r u e in t en t and mean ing of such decree such plaintiff first giving sufficient security in such s u m as t h e Cour t shal l t h i n k proper to abide such | ||||
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| shall t h i n k proper to m a k e concerning the same upon t he defendant 's appearance to defend such suit and pay ing such costs to t he plaintiff as t he Court shal l order b u t in case such plaintiff shall refuse or neglect to give such security as aforesaid t h e n t he said Cour t shall | ||||
| Order t h e es ta te or effects so sequestered or whereof t he possession | ||||
| shal l be decreed to be delivered to r emain unde r t he direction of t h e Cour t e i ther by appoin t ing a receiver thereof or otherwise as to such Cour t shall seem meet un t i l t h e appearance of the defendant to defend such sui t and his paying such costs to t he plaintiff as t he said Cour t shall t h i n k reasonable or un t i l such order shall be m a d e there in as t he | ||||
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| 4 . Provided always and be it fur ther enacted Tha t if any person aga ins t w h o m a n y decree shall be made upon refusal or neglect to |
enter
enter his appearance or appoint a Clerk in Cour t or A t to rney to act on his behalf shall be in custody or for thcoming so t h a t he may be served wi th a copy of such decree t h e n he shall be served wi th a copy thereof before any process shall be t aken out to compel t he performance
thereof.
5. Provided also and be i t fur ther enacted Tha t if any decree shall be made in pur suance of th is Act against any person being out of t h e rea lm or absconding in m a n n e r aforesaid at the t ime such decree is pronounced and such person shall wi th in seven years after t h e m a k i n g such decree r e t u r n or become publicly visible t h e n and in such case he shall likewise be served wi th a copy of such decree wi th in a reasonable t ime after h is r e t u r n or publ ic appearance shall be known to t he plaintiff and in case any defendant against w h o m such decree shall be made shall wi th in seven years after t he m a k i n g such decree; happen to die before his or her r e t u r n in to th i s rea lm or appear ing openly as aforesaid or shall wi th in t h e t ime last before ment ioned die in custody before his or her being served wi th a copy of such decree t h e n his or her heir if such defendant shal l have any real estate sequestered or whereof possession shall have been delivered to t h e plaintiff and such heir m a y be found or if such heir shall be a femme covert infant or non compos mentis t he husband guard ian or commit tee of such he i r respectively or if the personal estate of such defendant be sequestered or possession thereof delivered to t he plaintiff t h e n his executor or admin is t ra to r (if any such the re be) may and shal l be served wi th a copy of such decree wi th in a reasonable t ime after i t shal l be k n o w n to t h e plaintiff t h a t t he defendant is dead and who is h is he i r executor or adminis t ra tor or where he may be served there wi th .
6. Provided always and be it fur ther enacted Tha t if any person so served wi th a copy of such decree shall no t w i th in six m o n t h s after such service appear and pet i t ion to have t he said cause reheard such decree so made as aforesaid shall s t and absolutely con firmed agains t t h e person so served wi th a copy thereof his hei rs executors and admin is t ra to rs and all persons c la iming or to claim by from or unde r h i m or any of t h e m by v i r tue of any act done or to be done subsequent to t h e commencement of such suit .7. Provided always and be i t further enacted Tha t if any person so served wi th a copy of such decree shall wi th in six m o n t h s after such service or if any person no t being so served shall wi th in seven years n e x t after the m a k i n g such decree appear in Cour t and pet i t ion to be
heard wi th respect to t he m a t t e r of such decree a n d shall pay down or
give securi ty for p a y m e n t of such costs as t h e Cour t shall t h i n k reasonable in t ha t behalf t h e person so pe t i t ion ing or his representa tives or any person cla iming under h i m by v i r tue of any act done before t he commencement of t he suit m a y be admi t ted to answer t he bil l exhibi ted and issue m a y be joined and witnesses on b o t h sides examined and such o ther proceedings decree and execution m a y be h a d the reon as the re m i g h t have been in case t he same pa r ty had original ly appeared and t h e proceedings had t h e n been newly b e g u n or as if no former decree or proceedings had been in t h e same cause.
8. Provided always and be i t further enacted Tha t if any person against w h o m such decree shall be made his heirs executors or adminis t ra tors shall not w i th in seven years nex t after t h e m a k i n g of such decree appear and pet i t ion to have t h e cause reheard and pay down or give securi ty for payment of such costs as t h e Court shall t h i n k reasonable in t ha t behalf such decree m a d e as aforesaid shall s t and absolutely confirmed against t he person against whom such decree shall be made his heirs executors and adminis t ra tors and against all persons c la iming or to claim by from or unde r h im or any of t h e m
by
by v i r t ue of any act done or to be done subsequent to t h e commence m e n t of such suit and a t t h e end of such seven years i t shall a n d m a y be lawful for t h e Cour t to m a k e such fur ther order as shall be j u s t and reasonable according to t h e c i rcumstances of t h e case.
9. Provided always and be i t fur ther enacted Tha t th i s Ac t shall n o t ex tend or be construed to extend to w a r r a n t or m a k e good any proceeding agains t any person beyond the seas unless it shal l appear to t h e satisfaction of t he Cour t by affidavit or affidavits before t h e m a k i n g of such decree t h a t such person h a d been in t h a t p a r t of
| Grea t | Br i ta in called E n g l a n d wi th in | two years nex t before t h e suhpoena |
in such sui t issued agains t such person.
10. Provided always and be i t fur ther enac ted T h a t t h e provisions hereinbefore contained shall no t ex tend or be const rued to ex tend to w a r r a n t or m a k e good any proceeding aga ins t any person in any Cour t of E q u i t y hav ing a l imited jur isd ic t ion unless i t shall appear to t h e satisfaction of such Cour t by affidavit before t h e m a k i n g of such decree t h a t such person h a d resided w i th in t he jur isd ic t ion of such Cour t w i th in one year nex t before t h e subpoena in such sui t issued agains t such person.
1 1 . A n d be i t fur ther enacted Tha t from and after t h e pass ing
| of th i s A c t if any defendant by v i r tue of any wr i t of habeas | corpus | or |
o ther p r o c e s s i ssuing out of any Cour t of E q u i t y shall be b r o u g h t
in to Cour t and shall refuse o r neglect or be ing wi th in t he Avails of
any pr i son in E n g l a n d under or charged wi th a n a t t a c h m e n t or o ther process of con tempt shall after fourteen days previous not ice in w r i t i n g requ i r ing h im to enter an appearance refuse or neglect to enter h is appearance according to t h e rules or me thod requi red by t h e said Cour t or to appoin t a Clerk in Cour t or A t t o r n e y of such Cour t to act on his behalf such Cour t may appoin t a Clerk in Cour t or A t t o r n e y of such Cour t to en te r an appearance for such defendant and such proceedings m a y the reupon be had in t h e cause as if t he p a r t y had
| actual ly | appeared. |
12. " A n d w h e r e a s in m a n y cases persons h a v i n g privilege of
| " | P a r l i a m e n t | a re n a m e d a s defendants | in suits | ins t i tu ted | in Cour ts | of |
" Equ i ty against t h e m ei ther alone or jo in t ly wi th o ther p e r s o n s for " enforcing against t h e m demands and duties cognizable in Cour ts of " E q u i t y and in some cases such defendants h a v i n g p r i v i l e g e s of " P a r l i a m e n t have stood out to t h e r e t u r n of process of sequestrat ion " issued aga ins t t h e m for enforcing appearance and such process of
| " seques t ra t ion h a t h not been found sufficient t o enforce such appear- | |
| " ance " | Be i t therefore enacted T h a t from and after t h e pass ing of |
| th is A c t in | case | any defendant | h a v i n g | privi lege | of P a r l i a m e n t | shal l |
| upon a r e t u r n of process of seques t ra t ion | issued | aga ins t h i m | for no t |
| p u t t i n g | in a n appearance to any original or other bil l of compla in t |
| ins t i tu ted | aga ins t | h i m in a Cour t | of E q u i t y for enforcing | discovery |
| and relief or d i scove ry | alone (as t h e case m a y be) neglect to appear |
| t h a t t h e n and in such case such | Cour t upon | p roduc ing | t he r e t u r n | of |
such seques t ra t ion in Cour t may on t h e mot ion or o ther appl icat ion of t h e plaintiff in such cause appoin t a Clerk in Cour t to en te r an appear ance for such defendant so hav ing privi lege of P a r l i a m e n t and such
| proceedings | m a y be t he r eupon | h a d in t h e cause | as if t he p a r t y | h a d |
| actual ly | appeared. |
1 3 . " A n d whereas in m a n y cases it is necessary on the p a r t
" of t h e persons h a v i n g legal r igh t s agains t persons h a v i n g privi lege " of Pa r l i amen t to proceed by bill in E q u i t y agains t such persons so " h a v i n g privi lege of Par l i ament t o ob ta in from t h e m discovery on " oa th of facts in tended to be; used or given in evidence in Cour t s of " Law agains t t h e persons m a k i n g such discovery and in cases where " such persons h a v i n g such privilege as aforesaid shal l s tand out
3 s " process " process of con tempt par t ies ent i t led to such discovery aga ins t t h e m " have not sufficient means of compell ing or ob ta in ing t he same in al l " cases " Be i t therefore enacted Tha t from and after t h e pass ing of t h i s Act when any defendant hav ing privilege of P a r l i a m e n t shal l , have appeared to any bi l l filed agains t h i m seeking a discovery u p o n oa th or when an appearance shal l have been en te red for such defen dan t according to t h e provisions aforesaid and such person shall refuse or neglect to p u t in his answer to such bil l w i th in t h e t i m e for t h a t purpose a l l o w e d by t h e ru les and orders of such Cour t t h a t t h e n it
s h a l l a n d m a y be lawful for t he plaintiff i n such suit to apply to t he
Cour t for an order t h a t such bil l shall be t a k e n pro confesso agains t
such defendant and u p o n such appl icat ion such Cour t of E q u i t y shal l m a k e an order t h a t such bil l shall be t a k e n pro confesso unless t he
defendant shal l wi th in e igh t days after be ing served wi th such order
shew good cause to t h e cont ra ry .
14. A n d be it fur ther enac ted Tha t w h e n and so soon as any
such order shal l have been pronounced by any such Cour t of E q u i t y for t a k i n g such bill pro confesso such bill in E q u i t y or an examined copy thereof so t a k e n pro confesso shall b e t aken and read in any Cour t of L a w or E q u i t y as evidence of t he facts and m a t t e r s and th ings
the re in conta ined in t h e same m a n n e r as if such facts m a t t e r s and th ings had been admi t t ed to be t r u e by t he answer of t h e defendant p u t in to such bill a n d such bill so t aken pro coufesso shall be received and t a k e n in evidence of such and t h e same facts and on behalf of such and so m a n y persons as t h e answer of t h e defendant t o t h e said bil l could and m i g h t have been read a n d received in evidence of in case such answer h a d been p u t in by t h e defendant there to and h a d
admi t t ed t h e same facts m a t t e r s and c i rcumstances as in such bil l
s ta ted and set forth and in l ike m a n n e r every other bill of discovery
t a k e n pro confesso unde r any of t he provisions of th i s Ac t shal l or
m a y be t a k e n a n d read as evidence of t he facts and m a t t e r s and th ings the re in conta ined to t h e ex ten t aforesaid.
15 . A n d for r emedying t h e pract ice of Cour t s of E q u i t y in
r ega rd to process of con tempt and t h e t a k i n g of bills pro confesso be it fur ther enacted T h a t t he Rules and Regu la t ions hereinaf ter provided and contained shall be adopted by t h e H i g h Cour t of Chancery and shall from hencefor th become Orders and Ru les of t he said Cour t of Chancery and be observed and enforced in and b y t h e said Cour t ( tha t is t o say)
1. T h a t when a wr i t of a t t a c h m e n t shal l have duly issued agains t
any defendant for con tempt in not answer ing t h e bill and such defendant shal l no t have been t a k e n under such wri t and t h e Sheriff of t h e Coun ty in to which such wr i t shall have issued shal l
m a k e a r e t u r n of non est inventus to t he same t h e Cour t shal l
upon mot ion by or on behalf of t he plaintiff (notice of which shal l no t be requi red) order t h a t t h e Serjeant at A r m s a t t e n d i n g the Cour t t o apprehend such defendant and b r ing h i m to t h e b a r of t h e Cour t t o answer h i s con tempt and t h e same proceedings m a y the r eupon be had as if such order h a d been made in t h e m a n n e r heretofore in use provided tha t before such order shal l in any such case be m a d e t he plaintiff apply ing for t h e same shal l be requi red to satisfy t h e Court by t h e affidavit of t h e Solicitor of t he plaintiff or of his t o w n agent if t he writ of a t t a c h m e n t was. issued by such town agent t h a t due diligence was used to ascer ta in t he place where such defendant was at t he t ime of i ssuing such wr i t and in endeavour ing to apprehend such defendant u n d e r t h e same and t h a t t h e person su ing forth such wri t verily believed a t t h e t ime of siting forth t h e same t h a t such defendant was in t h e county in to which such wr i t was issued.
| 2. | T h a t | if | any | d e f e n d a n t | b e i n g in | c o n t e m p t | for | not | a n s w e r i n g t he | bill |
shal l have been b r o u g h t t o t he b a r of t he Cour t u n d e r p r o c e s s
for such c o n t e m p t and shall h a v e been commit ted or remanded
b a c k to the pr ison of t he Flee t t he p l a in t i f f m a y sue f o r t h t h e wr i t
of habeas corpus in t he m a n n e r a n d form h e r e t o f o r e in use in t h e
like cases p r o v i d e d t h a t t he r e s h a l l be a t least t w e n t y - e i g h t d a y s
between t he d a y on which such d e f e n d a n t was so commit ted or
r e m a n d e d b a c k a n d t h e r e t u r n of such wr i t of habeas corpus
a n d upon or a f t e r t he r e t u r n of such wri t of habeas corpus in case
such d e f e n d a n t shall not h a v e p u t in his a n s w e r t he Cour t shall ,
o r d e r t he bill to be t a k e n pro confesso agains t such defendant in
t he same m a n n e r as is now u s u a l in t h e l ike cases u p o n t h e r e t u r n
of a wr i t of alias pluries habeas corpus a n d s u c h decree shall there
upon be m a d e as shall be t h o u g h t j u s t b u t in r e g a r d to a n y d e f e n d a n t i n c u s t o d y before a n d a t t he t ime of t he p a s s i n g of th is
Ac t there shall be at least t h i r t y d a y s b e t w e e n t he t i m e of p a s s i n g th i s Ac t a n d the r e t u r n of such l a s t - m e n t i o n e d wr i t of habeas
corpus and it s h a l l n o t be n e c e s s a r y in t h e case of a n y defendant now in c u s t o d y as aforesaid who shal l have been b r o u g h t t o tin;
b a r of t h e Cour t a s a f o r e s a i d to sue f o r t h more t h a n one wr i t of
habeas corpus in order to t a k e t he bill pro confesso.
| 3. | Tha t | t he p a r t y | p r o s e c u t i n g | a n y c o n t e m p t | shal l be a t l iber ty | wi thout |
o r d e r to sue f o r t h t he several wr i t s i n process of con tempt r e t u r n a b l e immedia te ly in case t h e p a r t y in c o n t e m p t resides or
is in L o n d o n or w i t h i n t w e n t y miles t h e r e o f and t h a t in other
cases t h e pa r ty p r o s e c u t i n g a c o n t e m p t shall be a t l i b e r t y w i t h o u t o r d e r to sue f o r t h such s e v e r a l wr i t s r e t u r n a b l e in vacat ion pro
v i d e d t h a t t he re be fifteen days between t h e tes te and t h e r e t u r n
o f each of such w r i t s .
4. T h a t where a defendant is confined for a misdemeanor and has
b e e n b r o u g h t before t he Cour t upon an habeas corpus a n d there
upon has been t u r n e d over to t h e F lee t pro forma b u t has been
c a r r i e d back to t he p r i s o n from w h e n c e he came wi th his c a u s e
a n o t h e r wr i t of habeas corpus m a y issue directed to the gaoler or
k e e p e r of t he p r i s o n to which he has been c a r r i e d back a n d there
u p o n t h e d e f e n d a n t shall be b r o u g h t in to Cour t a n d r e m a n d e d
to t h e pr ison from w h e n c e he came wi th his cause wi thou t
be ing t u r n e d over a g a i n to t he Flee t p r i s o n a n d t h e bill m a y be
t a k e n pro confesso in the same m a n n e r in all respects as if t h e Flee t ,
defendant h a d been all a l o n g in t h e custody of t he W a r d e n of t h e
| 5. | That | if t h e d e f e n d a n t | u n d e r | p r o c e s s | of | c o n t e m p t | for | not | a p p e a r i n g |
o r n o t a n s w e r i n g be in a c t u a l c u s t o d y a n d s h a l l n o t h a v e been
s o o n e r b r o u g h t to t he bar of t he Cour t u n d e r process to a n s w e r
h i s c o n t e m p t t h e p l a i n t i f f if t h e c o n t e m p t be no t s o o n e r c l e a r e d
s h a l l b r i n g t h e d e f e n d a n t by a n habeas corpus t o t h e ba r of t h e Cour t wi th in t h i r t y d a y s from t h e t ime of his b e i n g a c t u a l l y in
c u s t o d y or d e t a i n e d (being a l r e a d y in c u s t o d y ) u p o n process of
c o n t e m p t a n d if the last d a y of s u c h t h i r t y d a y s s h a l l h a p p e n out,
of t e r m t h e n w i t h i n t h e first f o u r d a y s of the e n s u i n g t e r m a n d
w h e r e t h e d e f e n d a n t is i n c u s t o d y of t h e Serjeant at A r m s or of
t h e Messenger u p o n a n a t t a c h m e n t or o t h e r p r o c e s s t h e p l a in t i f f
shall wi th in t e n d a y s a f t e r h is b e i n g t a k e n in to such c u s t o d y or if t h e l a s t of such t e n d a y s s h a l l h a p p e n out of t e r m t h e n w i t h i n
t h e first four days of t h e next ensu ing t e r m c a u s e t h e d e f e n d a n t
to be b r o u g h t to t h e b a r of t h e Cour t and in case a n y s u c h
defendant shall no t be b r o u g h t to the bar of t he Cour t wi th in the
r e s p e c t i v e t imes aforesaid t he Sheriff Gaoler or Keeper Serjeant
a t A r m s or Messenger in w h o s e c u s t o d y he s h a l l be shall there u p o n upon discharge h i m ou t of custody wi thou t p a y m e n t by h im of t he costs of con tempt which shall be payable by the pa r ty on whose behalf t he process issued and th i s ru le shal l apply to every defendant in cus tody before and a t t h e t ime of pass ing of th i s Ac t who shall no t have been b r o u g h t to t h e ba r of t he Cour t b u t t he t h i r t y days allowed in t he first above-ment ioned case and t h e t e n days al lowed in t h e second above-ment ioned case shall be
reckoned from t h e first day of nex t t e r m .
6. Tha t if a defendant upon being b r o u g h t before t h e Cour t u p o n a n
habeas corpus shal l m a k e oa th (which shal l be adminis te red to h i m by t h e Reg i s t r a r and he shall be examined in open Court ) t h a t h e is unab le by reason of pover ty to employ a Solicitor to p u t in his answer t h e Cour t shal l t he reupon refer i t to a Mas t e r
in ro ta t ion to enqui re in to t h e t r u t h of t h a t a l legat ion and to
repor t the reon to t h e Cour t fo r thwi th and the reupon t h e Court;
m a y m a k e such order as u p o n other repor t s of t h e l ike nature; unde r t h e provisions hereinaf ter contained.
7. Tha t on t he th i r t i e th day of J a n u a r y t h e th i r t i e th day of Apr i l t h e th i r t i e th day of J u l y and t h e t h i r t i e t h day of October in every year or if any of those days happen on a Sunday t h e n on t h e following day one of t he Mas te r s of t he Cour t of Chancery to be named by t h e Cour t shal l visit t h e F lee t pr ison and examine t h e pr isoners confined the re for con tempt and shall repor t the i r opinion on the i r respect ive cases to t h e Cour t and the reupon i t shall be lawful for t h e Cour t to order if i t shall see fit t h a t t h e costs of t h e con tempt of any such pr isoner shal l be pa id out of t he in teres t and dividends ar is ing from the several Government or Pa r l i amen t a r y securit ies s t and ing in t h e n a m e of t h e A c c o u n t a n t Genera l of t he said Cour t of Chancery in t i tu led " Account of monies placed " out for the benefit and better security of the suitors of the High " Court of Chancery" a n d " Account of securities purchased with " surplus interest arising from securities carried to an account of " monies placed out for the benefit and better security of the " suitors of the High Court of Chancery" or out of any cash s t and ing to ei ther of such accounts or t o any o ther account which is now or hereafter m a y be s t and ing to t h e credit of t h e sui tors of t h e said Cour t of Chancery (after and subject to t h e p a y m e n t of all charges which b y any Ac t heretofore passed are directed to be paid thereout ) a n d to assign a Solicitor and Counsel to such pr isoner for p u t t i n g in his answer a n d defending h im in forma
pauperis and to direct any such pr isoner hav ing previously done such acts as t he Cour t shal l direct to be discharged out of cus tody Provided t h a t if any such defendant become enti t led to any funds out of such cause t h e same shal l be applied unde r t he direction of t h e said Cour t in t he first ins tance to t h e re - imbursement of t h e
su i tor ' s fund.
8. T h a t i t shall be lawful for t h e Mas t e r vis i t ing t h e F lee t or to w h o m t h e case of a pr isoner shal l be referred by the Cour t itself t o examine t h e pr isoner a n d all o ther persons w h o m he m a y t h i n k it p roper to examine u p o n oath and to adminis ter a n oa th or oa ths to any such pr isoner and o ther persons accordingly a n d to cause any Officers Clerks and Minis ters of any Cour t of L a w or E q u i t y to b r i ng a n d produce upon oa th before h i m any records orders books papers or other wr i t ings belonging to t h e said Cour t s or to any of t h e Officers wi th in t h e same as such Officers.
9. Tha t if i t shall appear to t he satisfaction of t he Cour t t h a t any such pr isoner is an idiot l una t i c or of u n s o u n d m i n d a l t hough no commission has issued t h e Cour t shall appoint a gua rd ian to p u t in his answer and discharge t he defendant provid ing for
t he
t he costs in any of t h e ways poin ted out by th is A c t as shal l seem j u s t and if t h e Cour t shal l see fit t h e defence m a y he made
b y such gua rd i an in forma pauperis. 10. That where the defendant has been brought to the bar of the Cour t for his con tempt in not answer ing and refuses or neglects to answer (not be ing idiot luna t i c or of u n s o u n d mind) t h e Cour t may u p o n mot ion or pet i t ion of which due not ice shall be given personally to t h e defendant au thor ize t h e plaintiff to amend his bill wi thout such a m e n d m e n t opera t ing as a discharge of t he con t e m p t or render ing it necessary to proceed wi th t h e process of
con tempt de novo b u t after such a m e n d m e n t t h e plaintiff m a y proceed to t ake t h e amended bi l l pro confesso in t h e same m a n n e r as if i t h a d n o t been amended provided nevertheless t h a t if t he defendant shall be desirous to answer such amended bill t he Cour t shal l allow h i m such t ime as shal l seem j u s t for t h a t purpose b u t if he shall no t w i th in t he t ime allowed by the Cour t p u t in a sufficient answer to t h e amended bil l t h e process for t ak ing the bill pro confesso m a y be resumed and carr ied on.
| 1 1 . Tha t in every case where t h e defendant | has been b r o u g h t | to t h e |
bar of t h e Cour t t o answer his con tempt for no t answer ing and shall refuse or neglect to answer w i th in t h e nex t twenty-one days t he plaintiff shal l be a t l iber ty w i th t h e leave of the Cour t upon ten days previous not ice to t he defendant after t h e expi ra t ion of such twenty-one days unless good cause be shewn to t he cont ra ry ins tead of proceeding to have t he bil l t aken pro confesso to p u t in such an answer to t h e bill as hereinafter is men t ioned in t he n a m e of t h e defendant wi thou t oath or s igna ture a n d the reupon the suit shall proceed in t h e same m a n n e r as if such answer were really t h e answer of t h e defendant w i t h which t h e plaintiff was
satisfied and t h e costs of t h e con tempt and of p u t t i n g in such answer m a y be provided for in l ike m a n n e r as if t h e defendant himself had p u t in such answer and such answer besides t he formal pa r t s thereof shall be to t he following effect t h a t t h e defendant leaves t he plaintiff to m a k e such proofs of t h e several m a t t e r s in t h e bill alleged as he shall be able or be advised and submi t s his interests to t he Court .
| 12. T h a t in any case where upon the appl icat ion of t h e plaintiff | t he |
Cour t shall be satisfied t ha t justice cannot be done to t h e plaintiff wi thout an answer to t he bill or to t h e in terrogator ies from t h e defendant himself i t shall be lawful for t he Cour t to order the
wi thou t prejudice to t he plaintiff 's avai l ing himself of any of t he defendant to r emain in custody un t i l answer or fur ther order b u t provisions of th i s Act . 13. That where the defendant is in contempt for not appearing or not answer ing a n d in ac tua l custody unde r process for such con tempt or be ing a l ready in custody shall be detained by an a t t a c h m e n t for such con tempt and shall no t where t he contempt is for not appear ing enter an appearance wi th in twenty-one days after he is lodged in gaol or pr ison or t he a t t a c h m e n t is lodged aga ins t h i m (he being a l ready in pr ison) as t h e case m a y be or where t he contempt is for not answer ing p u t in an answer w i th in two calendar m o n t h s after he is lodged in gaol or prison or the a t t achmen t is lodged agains t h im he being already in pr i son the plaintiff shall (as t he case may be) within fourteen days after t he period computed from t h e expirat ion of such twen ty -one days wi th in which he m a y by the provisions of th i s A c t be able to enter such appearance cause an appearance to be entered for t he defendant unde r t he powers of th i s Act and shall at t h e expi ra t ion of such two calendar m o n t h s proceed to t ake t he
bill
bill pro confesso and shal l accordingly obta in an order for t ak ing t h e same pro confesso w i th in six weeks after t h e period computed from t h e expira t ion of such two calendar m o n t h s wi th in which he m a y be able to t a k e the same pro confesso or in default of so doing in e i ther of such cases the defendant shall upon appl ica t ion to t h e Cour t be ent i t led to be discharged out of custody wi thou t pay ing any of t h e costs of t h e contempt unless the Cour t shall unde r t he power hereinbefore conta ined see good cause to r e m a n d and deta in t he defendant in custody and th is ru l e shal l apply to every defendant in custody before and at t h e t ime of pass ing of th i s Ac t who shal l not have entered his appearance and for w h o m an appearance shal l no t have been entered or shall no t have answered t h e bil l and the bill shall no t have been t aken pro confesso b u t t h e twenty-one days and two calendar m o n t h s respectively to be reckoned from t h e first day of nex t t e r m and t h e o ther periods to be a l tered accordingly in computa t ion b u t n o t h i n g in th i s Ac t shal l p reven t any plaintiff from proceeding to t ake his bi l l pro confesso according to t h e prac t ice exis t ing before t h e pass ing of t h i s Act where at t he t ime of pass ing of th i s Ac t his proceedings shall be so far advanced t h a t the powers of th i s A c t would not enable h i m to accelerate
t h e period for t a k i n g his bill pro confesso.
14. That where a defendant is in custody for contempt in not answering and shall be able to p u t in his answer b y bor rowing or ob ta in ing a copy of t he bill w i thou t t a k i n g an office copy of t h e bil l he shall no t be compellable to t ake any such copy b u t t h e Clerk in Cour t m a y (if h e t h i n k the defendant is of sufficient abil i ty to pay for an office copy) requ i re h im before t h e answer is filed to m a k e an affidavit denying his abi l i ty in consequence of pover ty to pay for an office copy of t h e bill .
15. That when any person shall have been directed by any decree or order to execute any deed or o ther i n s t r u m e n t or m a k e a sur render or t ransfer or to levy a fine or suffer a recovery and shal l have refused or neglected to execute m a k e or t ransfer or levy or suffer t h e same a n d shal l have been commit ted to pr ison unde r process for such con tempt or be ing confined in pr i son for any o ther cause shall have been charged w i t h or deta ined u n d e r process for such con tempt and shal l r emain in such pr ison the Cour t may upon mot ion or pe t i t ion and upon affidavit t h a t such person has after t he expira t ion of two calendar m o n t h s from t h e t ime of his be ing
commit ted unde r or charged w i t h or detained unde r such process again refuse to execute such deed or i n s t r u m e n t or m a k e such sur render or t ransfer or levy or suffer such fine or recovery order or appoint one of t he Mas te r s in ord inary or if t he act is to be done out of London t h e n if necessary one of t h e Mas te rs ex t raord ina ry to execute such deed or o ther i n s t rumen t or to made such sur render or t ransfer for and in t he n a m e of such person and to levy such fine or suffer such recovery in his n a m e and to do all acts necessary to give val idi ty and operat ion to such fine or recovery and to lead or declare t h e uses thereof and the execut ion of t h e said deed or o ther i n s t rumen t and the sur render or t ransfer made by the said Mas te r and the fine a n d recovery levied or suffered by h i m shal l in all respects have t h e same force; and val idi ty as if t h e same h a d been executed or made levied or suffered by the pa r ty himself and wi th in t en days after t h e execution or m a k i n g of any such deed or other i n s t rumen t or sur render or t ransfer or levying or suffering such fine or recovery not ice thereof shall be given by the adverse Solicitor to t he pa r ty in whose n a m e the same is executed or made and such p a r t y as
soon
soon as the deed or other instrument or surrender transfer fine or recovery shall he executed made levied or suffered shall be con sidered 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 line or recovery.
10. That where a person shall be committed for a contempt in not delivering to any person or persons or depositing in Court or else where 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 have 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 in the cause as to the Court shall seem proper.
17. That in any other case of a commitment for contempt not herein specially provided for the Court may upon any such application as last aforesaid or upon any such report as aforesaid make such order for the discharge of the prisoner upon any such terms and making if the Court shall see fit any costs in the cause as to the Court shall seem proper.
18. That where any person committed for a contempt shall be entitled to his discharge upon applying to the Court but shall omit to make such application the Court may upon any such report as aforesaid compulsorily discharge such person from the contempt and from custody and pay the costs of the contempt out of any funds belonging to him over which the Court may have power or make them costs in the cause as against him or may discharge him from the contempt but leave him in custody for the costs which may be cleared if he be insolvent under the provisions
hereinafter contained in that behalf. 19. That where any party obstinately retains possession of lands or other real property after a writ of execution of a decree or an order for delivery of possession has been duly served and demand of possession made and upon an affidavit of such service of the writ of execution and of such demand made thereunder and a refusal to comply therewith on the part of the person against whom the writ issued the party issuing it shall be at liberty upon an affidavit of service of the writ of execution and demand of possession and refusal to obtain the usual order of course for the writ of assistance to issue and that the inter mediate writs of attachment and injunction further commanding the party to deliver possession or any other writ shall be un necessary.
20. That in order to relieve persons in prison from the expense of a Master's attendance to take affidavits or answers the Lord High Chancellor do by one or more commission or commissions under the Great Seal upon or in respect of which no fee shall be payable nominate and appoint the Warden Keeper or other Chief Officer of every prison within the City of London or the
Bills
Bills of Mortality and their Deputies to he Master extraordinary of the High Court of Chancery for the purpose of taking and receiving such affidavits and answers as any person or persons within any such prison shall he willing or desirous to make and for no other purpose and the person so taking such affidavit or answer shall in respect thereof he entitled to receive a fee of one shilling and no more and the Court of Exchequer shall in like manner appoint such persons as aforesaid a Com missioner or Commissioners of the said Court for the purposes aforesaid and no others and with the right to the like fee and no more and in every case of an answer being sworn in prison a Clerk of a Master or Baron (as the case may require) shall attend to take and carry back to and from the prison the answer and shall in respect thereof be entitled to a fee of three shillings and no more.
16. And be it enacted That the discharge of any prisoner adjudicated upon under the authority of an Act passed in the seventh year of His present Majesty's reign intituled " An Act to amend and consolidate the Laws for the relief of Insolvent Debtors in England " or any other Act which may hereafter be passed for the relief of Insolvent Debtors shall and may extend to all process issuing from any Court of Equity for any contempt of such Court for non-payment of money or of costs charges or expenses in any such Court and that in such case the said discharge shall be deemed to extend to all costs which such prisoner shall be liable to pay in consequence or by reason of such contempt or on purging the same and that every discharge so adjudicated as aforesaid as to any debt or damages of any creditor of such prisoner shall be deemed to extend also to all costs incurred by such creditor before the filing of such prisoner's schedule in any action or suit brought by such creditor against such prisoner for the purpose for the recovery of the same and that all persons as to whose demands for any such costs money or expenses any such persons shall be so adjudged to be discharged shall be deemed and taken to be creditors of such prisoner in respect thereof and entitled to the benefits of all the provisions made for creditors by the said Act or any future Act subject nevertheless to such ascertaining of the amount of the said demands as may be had by taxation or otherwise and to such exami nation thereof as is in the said last-mentioned Act or as shall be in any future Act provided in respect of all claim to a dividend of such
insolvent's estate and effects. 17. And be it further enacted That where the process of contempt is for the non-performance of an act for example the not answering the plaintiff's bill and the bill in Equity to which the insol vent is a party is taken pro confesso and he has not paid the costs of the contempt or the insolvent has fully answered the plaintiff's bill or interrogatories or otherwise cleared his contempt except as far as regards the payment of the costs or it has become in event unnecessary for him to do the act for the non-performance of which he was com mitted or attached the Court of Equity in which the suit is depending shall upon the application of the party in contempt discharge him from the same except as to the costs thereof for which he shall remain in custody and such costs shall be deemed within the provision lastly hereinbefore contained and he shall be dischargeable therefrom and from the process of contempt in like manner as if the process of contempt were for non-payment of money or costs provided that this order or regulation shall not weaken any of the other powers by this Act given nor shall any thing herein contained lessen the operation of the said Act for the relief of insolvent debtors.
18. A n d be i t enacted Tha t t h e powers and au thor i t ies given by th i s A c t to t h e Cour t of Chancery or to t h e Lord Chancel lor of Grea t B r i t a i n shal l and may be exercised as well b y such Lord Chan cellor as by (and they are hereby given to) t h e Lord Keepe r or Com missioners of t h e Grea t Seal of Grea t Br i t a in for t h e t ime-being and to
| t h e M a s t e r | of t h e | Rolls | and | Vice-Chancel lor | respectively | b u t | t h e |
r epo r t s of t he "Warden of t h e Elec t and of t h e Mas te r s v is i t ing the re shal l be made to t he Lord Chancel lor Lord Keeper or Lords Commis sioners only who alone are to m a k e orders t he r eupon for discharge or relief of pr isoners .
19. A n d be i t fur ther enacted T h a t such of t h e Ru le s here in
before directed to be adopted by the Cour t of Chancery as are n u m b e r e d from five to twen ty bo th inclusive shall be adopted by t h e Cour t of E x c h e q u e r which Cour t shal l for t h e purposes of th i s Act draw u p o n
| t h e su i tor ' s fund | of | t h a t | Cour t . |
20. A n d be i t fu r ther enacted Tha t t h e powers and au thor i t ies
contained in such las t -ment ioned Rules and given by th is A c t to t he Lord Chancellor shal l a n d m a y be exercised in l ike m a n n e r by and are hereby given to H i s Majes ty ' s Cour t of Excheque r and m a y be exer cised by the said Cour t or by t h e Lord Chief Ba ron thereof b u t such periodical visits only to be m a d e to t h e Fleet pr ison in regard to pr isoners for con tempt of t he said Cour t as t he Lord Chief Baron shal l direct a n d by such Officer or Officers of t h e Cour t as he shal l nomina te .
2 1 . And be i t fur ther enacted T h a t wherever th i s Ac t in
descr ibing or referr ing to any person or any conveyance t ransfer m a t t e r or t h i n g uses t h e word i m p o r t i n g t h e s ingular n u m b e r or t h e mascul ine gender only t h e same shal l be unders tood to inc lude and shal l be applied to several persons as well as one person and females as well as males and bodies corporate as well as individuals and several conveyances t ransfers m a t t e r s or t h ings respectively as well as
ONE; conveyance t ransfer m a t t e r or t h i n g respectively unless there; be
| someth ing in the | subject or context r e p u g n a n t to such | construct ion. |
A N N O U N D E C 1 M O G E O R G I T I V . R E G I S . E T A N N O
P R I M O G U L I E L M I I V . R E G I S .
C A P . X L .
| An Act for making better provision for the Disposal of the undisposed of Residues of the Effects of Testators, | [l6th |
July, 1830.]
| " W H E R E A S | tes ta tors by the i r wills f requent ly appoin t executors |
" w i t h o u t m a k i n g any express disposition of the residue of " the i r personal es ta te A n d whereas executors so appointed become " by law ent i t led to t he whole residue of such personal estate and " Cour t s of E q u i t y have so far followed t h e law as to hold such " executors to be ent i t led to re ta in such res idue for the i r own use " unless i t appears to have been the i r tes ta tors in ten t ion to exclude " t h e m from the beneficial in teres t there in in which case they are held " to be t rus tees for the person or persons (if any) who would be " ent i t led to s u c h es ta te unde r t h e S t a tu t e of Dis t r ibu t ions if t h e
| " tes ta tor has died in tes ta te A n d whereas it is desirable t h a t | t h e |
| " L a w should be extended in t h a t r e spec t " | Be i t therefore enacted by |
| t h e | K i n g ' s Mos t Exce l len t Majesty by and wi th t h e advice a n d | consent |
| of t h e Lords Sp i r i tua l | and | Tempora l | a n d | Commons in th i s | present |
| P a r l i a m e n t | assembled | and | by | t h e | au tho r i t y | of | t h e same | T h a t | w h e n |
3 T any
a n y person shal l die after t h e first day of September n e x t after t h e pass ing of th i s Ac t h a v i n g b y his or her wil l or any codicil or codicils there to appoin ted any person or persons to be his or her executor or executors such executor or executors shall be deemed by Cour t s of E q u i t y to be a t ru s t ee or t ru s t ees for t h e person or persons (if any) who would be ent i t led to t h e estate unde r t h e S t a tu t e of Dis t r i bu t ions in respect of any res idue not expressly disposed of unless it shall appear b y t he will or any codicil the re to t h e person or persons so appoin ted executor or executors was or were in tended to t a k e such
res idue beneficially.
2. Provided also and be i t fur ther enacted T h a t n o t h i n g here in contained shal l affect or prejudice any r i g h t t o which any executor if th i s A c t h a d n o t been passed would have been ent i t led in cases where
the re is no t any person who would be ent i t led to t h e tes ta tor ' s estate
unde r t h e S t a t u t e of D i s t r ibu t ions in respect of any residue no t expressly disposed of.
3. Provided a lways and be it fur ther enacted Tha t n o t h i n g
here in conta ined shal l ex tend to t h a t p a r t of t h e U n i t e d K i n g d o m called Scotland.
A N N O U N D E C I M O G E O R G I I I V . R E G I S . E T A N N O
P R I M O G U L I E L M I I V . R E G I S .
C A P . X L V I .
An Act to alter and amend the Law relating to illusory
Appointments. [16th July, 1830.]
" W H E R E A S by deeds wills and o ther i n s t r u m e n t s powers are " f requent ly given to appo in t rea l and personal p roper ty " amongs t several objects in such m a n n e r t h a t none of t h e objects can " be excluded by t h e donee of t h e power from a share of such proper ty " A n d whereas appo in tmen t s in exercise of such powers whereby an " u n s u b s t a n t i a l i l lusory or nomina l share of t he p roper ty affected " the reby is appoin ted to or left unappo in t ed to devolve upon any one " or more of t h e objects thereof are inva l id in E q u i t y a l t hough t h e
" l ike appo in tmen t s are good and b i n d i n g a t L a w " Be i t therefore
enacted b y the K i n g ' s M o s t Exce l l en t Majesty by a n d wi th t he advice
a n d consent of t h e Lords Spi r i tua l and Tempora l and Commons
in th i s p resen t Pa r l i amen t assembled a n d by t h e au tho r i t y of t h e
same T h a t no appo in tmen t which from and after t h e pass ing of t h i s A c t shal l be m a d e in exercise of any power or au tho r i t y to appoin t any p rope r ty rea l or personal amongs t several objects shal l be inval id or impeached in E q u i t y on t h e g round t h a t a n unsubs t an t i a l i l lusory or nomina l share only shal l be t he r eby appointed to or left unappo in ted to devolve upon any one or more of t h e objects of such power b u t t h a t every such a p p o i n t m e n t shal l be valid a n d effectual in E q u i t y as
well as a t L a w n o t w i t h s t a n d i n g t h a t any one or more of t he objects
shall n o t t he r eunde r or in default of such appo in tmen t t ake more t h a n
an unsubs t an t i a l i l lusory or nomina l share of t he p roper ty subjected to such power.
2. Prov ided a lways and be i t fu r ther enacted Tha t n o t h i n g in
th i s Act conta ined shal l prejudice or affect any provision in any deed will or other i n s t r u m e n t c rea t ing any such power as aforesaid which
shal l declare t h e a m o u n t of t he share or shares from which no object of t h e power shall be excluded.
3. Provided also a n d be i t fu r ther enacted and declared T h a t n o t h i n g in th i s A c t contained shall be cons t rued deemed or t a k e n at L a w or in E q u i t y to give any other val idi ty force or effect to any appo in tmen t t h a n such appo in tmen t would have had if a subs tan t ia l share of t h e p roper ty affected by the power had been thereby appointed to or left unappoin ted to devolve u p o n any object of such power,
A N N O U N D E C I M O G E O R G I I I V . R E G I S . E T A N N O
P R I M O G U L I E L M I I V . R E G I S .
C A P . X L V I I .
An Act for consolidating and amending the Laws for facilitating the Payment of Debts out of Real Estate. [16th July, 1830.]
| WH E R E A S | K i n g | W i l l i a m | and | Queen | M a r y | in t i tu led | " An | Act for | the |
an Ac t was passed in t h e t h i r d and four th years of
| relief of Creditors | against | fraudulent | Devises" | which was made |
| perpe tua l by an Ac t passed in t h e s ix th and seventh years of | K i n g |
| W i l l i a m | t h e | Thi rd | in t i tu led | "An | Act | for | continuing | several | Laics |
| therein | mentioned" | a n d whereas an A c t was passed by t h e Par l ia |
| m e n t | of I r e l a n d in t h e four th | year of | Queen | A n n e in t i tu led | " An | Act |
| for relief of Creditors against fraudulent | Devises" | and whereas an |
| A c t was passed in t h e for ty-seventh | year | of H i s l a te Majesty | K i n g |
| George t h e Th i rd in t i tu led " An | Act for | more effectually | securing | the |
| Payment | of Debts | of Traders | " and whereas i t is expedient t h a t t h e |
provisions of t he said reci ted Ac t s should be enlarged a n d t h a t t h e said reci ted Acts should be repealed in order t h a t all t h e provisions relat i ng to th i s m a t t e r should be consolidated in one A c t Be i t therefore enacted by the K i n g ' s Most Excel len t Majesty b y and wi th t h e advice and consent of t h e Lords Spi r i tua l and Tempora l and Commons in th i s present P a r l i a m e n t assembled and by t h e au tho r i t y of t h e same; Tha t t h e said several recited Ac t s shal l be and t h e same are hereby repealed b u t so as no t to affect any of t h e provisions and remedies of t h e said Acts or any of t h e m to the; benefit of which any persons are ent i t led as aga ins t any es ta te or in teres t in any lands t enemen t s here d i t amen t s or o ther real es ta te of any person or persons who died before
" said Act made in the ninth year of the reign of Queen Anne are
" sometimes issued to officers and other persons commanding them to
" admit to offices or do or perform other matters in respect whereof
" the persons to whom such writs arc directed claim no right or " interest or whose functions are merely ministerial in relation to such
" offices or matters and it may be proper that such officers and persons
" should in certain cases be protected against the payment of damages
| " or costs to which they may otherwise become liable " Be it therefore enacted That it shall be lawful for the Court to which application may be made for any writ of mandamus (other than such as relate to the said offices and franchises mentioned in or provided for | by the said Act made in the reign of Queen Anne) if such Court shall | see fit so to do to make rules and orders calling not only upon the |
| person to whom such writ may be required to issue but also all and every other person having or claiming any right or interest in or to the | ||
| matter of such writ to shew cause against the issuing of such writ | ||
| and payment of costs of the application and upon the appearance of such other person in compliance with such rules or in default of appearance after service thereof to exercise all such powers and authorities and make all such rules and orders applicable to the case as are or may be given or mentioned by or in any Act passed or to be passed during this present Session of Parliament for giving relief against adverse claims made upon persons having no interest in the subject of such claims Provided always that the return to be made to any such writ and issues joined in fact or in Law upon any traverse thereof or upon any demurrer shall be made and joined by and in the name of the person to whom such writ shall be. directed but neverthe less the same shall and may if the Court shall think fit so to direct be expressed to be made and joined on the behalf of such other person as m a y be mentioned in such rules and in that case such other person |
shall
shall he permitted to frame the return and to conduct the subsequent proceedings at his own expense and in such case if any judgment shall be given for or against the party suing such writ such judgment shall be given against or for the person or persons on whose behalf the
return shall be expressed to be made and who shall have the like
remedy for the recovery of costs and enforcing the judgment as the person to whom the writ shall have been directed might and would otherwise have had.
5. And be it further enacted That in case the return to any such writ shall in pursuance of the authority given by this Act be expressed to be made on behalf of any other person as aforesaid thefurther proceedings on such writ shall not abate or be discontinued
by the death or resignation of or removal from office of the person having made such return but the same shall and may be continued and carried on in the name of such person and if a peremptory writ shall be awarded the same shall and may be directed to any successor in office or right to such person.6. And for making some further provision for the payment of costs on applications for mandamus be it further enacted That in all cases of application for any writ of mandamus whatsoever the costs of such application whether the writ shall be granted or refused and also the costs of the writ if the same shall be issued and obeyed shall be in the discretion of the Court and the Court is hereby authorized to order and direct by whom and to whom the same shall be paid.
ANNO PRIMO ET SECUNDO GULIELMI IV. REGIS.
CAP. L V I I I .
An Act to enable Courts of Law to give relief against adverse
Claims made upon Persons having no Interest in the sub
ject of such Claims. [20th October, 1831.]
" WHEREAS it often happens that a person sued at law for the " recovery of money or goods wherein he has no interest and " which are also claimed of him by some third party has no means " of relieving himself from such adverse claims but by a suit in Equity " against the plaintiff and such third party usually called a Bill of " Interpleader which is attended with expense and delay " for remedy thereof Be it enacted by the King's Most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled and by the authority of the same That upon application made by or on the behalf of any defendant sued in any of His Majesty's Courts of Law at Westminster or in the Court of Common Pleas of the County Palatine of Lancaster or the Court of Pleas of the County Palatine of Durham in any action of assumpsit debt detinue or trover such application being made after declaration and before plea by affidavit or otherwise shewing that such defendant does not claim any interest in the subject matter of the suit but that the right thereto is claimed or supposed to belong to some third party who has sued or is expected to sue for the same and that such defendant does not in any manner collude with such third party but is ready to bring into Court or to pay or dispose of the subject matter of the action in such manner as the Court (or any Judge thereof) may order or direct it shall be lawful for the Court
or
or any Judge thereof to make rules and orders calling upon such third party to appear and to state the nature and particulars of his claim and maintain or relinquish his claim and upon such rule or order to hear the allegations as well of such third party as of the plaintiff and in the meantime to stay the proceedings in such action and finally to order such third party to make himself defendant in the same or some other action or to proceed to trial on one or more feigned issue or issues and also to direct which of the parties shall be plaintiff or defendant on such trial or with the consent of the plaintiff and such third party their Counsel or Attornies to dispose of the merits of their claims and determine the same in a summary manner and to make such other rules and orders therein as to costs and all other matters as may appear to be just and reasonable.
2. And be it further enacted That the judgment in any such action or issue as may be directed by the Court or Judge and the decision of the Court or Judge in a summary manner shall be final and conclusive against the parties and all persons claiming by from or under them.
3. And be it further enacted That if such third party shall not appear upon such rule or order to maintain or relinquish his claim being duly served therewith or shall neglect or refuse to comply with any rule or order to be made after appearance it shall be lawful for the Court or Judge to declare such third party and all persons claiming
by from or under him to be for ever barred from prosecuting his claim
against the original defendant his executors or administrators saving nevertheless the right or claim of such third party against the plaintiff and thereupon to make such order between such defendant and the plaintiff as to costs and other matters as may appear just and reasonable.
4. Provided always and be it further enacted That no order shall be made in pursuance of this Act by a single Judge of the Court
of Pleas of the said County Palatine of Durham who shall not also be
a Judge of one of the said Courts at Westminster and that every order to be made in pursuance of this Act by a single Judge not sitting in open Court shall be liable to be rescinded or altered by the Court in like manner as other orders made by a single Judge.
5. Provided also and be it further enacted That if upon applica
tion to a Judge in the first instance or in any later stage of the
proceedings he shall think the matter more fit for the decision of the
| thereupon the Court shall and may hear and dispose of the same in | Court it shall be lawful for him to refer the matter to the Court and |
| the same manner as if the proceeding had originally commenced by rule of Court instead of the order of a Judge. |
6. " And whereas difficulties sometimes arise in the execution
" of process against goods and chattels issued by or under the authority " of the said Courts by reason of claims made to such goods and " chattels by assignees of bankrupts and other persons not being " the parties against whom such process has issued whereby Sheriffs " and other officers arc exposed to the hazard and expense of actions " and it is reasonable to afford relief and protection in such cases to " such Sheriffs and other officers" Be it therefore further enacted
That when any such claim shall be made to any goods or chattels taken or intended to be taken in execution under any such process or to the proceeds or value thereof it shall and may be lawful to and
for the Court from winch such process issued upon application of
such Sheriff or other officer made before or after the return of such process and as well before as after any action brought against such Sheriff or other officer to call before them by rule of Court as well
the
the party issuing such process as the party making such claim and thereupon to exercise for the adjustment of such claims and the relief and protection of the Sheriff or other officer all or any of the powers and authorities hereinbefore contained and make such rules and decisions as shall appear to be just according to the circumstances of the case and the costs of all such proceedings shall be in the discretion
of the Court.
7. And be it further enacted That all rules orders matters and decisions to be made and done in pursuance of this Act except only the affidavits to be filed may together with the declaration in the cause (if any) be entered of record with a note in the margin expressing the
true date of such entry to the end that the same may be evidence in
future times if required and to secure and enforce the payment of costs directed by any such rule or order and every such rule or order
so entered shall have the force and effect of a judgment except only as
to becoming a charge on any lands tenements or hereditaments and in case any costs shall not be paid within fifteen days after notice of the taxation and amount thereof given to the party ordered to pay the same his agent or attorney execution may issue for the same by fieri facias or capias ad satisfaciendum adapted to the case together with the costs of such entry and of the execution if by fieri facias and such writ and writs may bear test on the day of issuing the same whether in term or vacation and the Sheriff or other officer executing any such writ shall be entitled to the same fees and no more as upon any similar writ grounded upon a judgment of the Court.
8. " And whereas by a certain Act made and passed in the last " Session of Parliament intituled ' An Act to improve the proceedings " in Prohibition and on Writs of Mandamus' it was among other " things enacted that it should be lawful for the Court to which appli-
" cation may be made for any such writ of mandamus as is therein
" in that behalf mentioned to make rules and orders calling not only
" upon the person to whom such writ may be required to issue but " also all and every other person having or claiming any right or
" interest in or to the matter of such writ to shew cause against the" issuing of such writ and payment of the costs of the application and " upon the appearance of such other person in compliance with such " rules or in default of appearance after service thereof to exercise all " such powers and authorities and make all such rules and orders " applicable to the case as were or might be given or mentioned by or
" Parliament for giving relief against adverse claims made upon " in any Act passed or to be passed during that present Session of " persons having no interest in the subject of such claims And " whereas no such Act was passed during the then present Session of " Parliament" Be it therefore enacted That upon any such appli cation as is in the said Act and hereinbefore mentioned it shall be lawful for the Court to exercise all such powers and authorities and make all such rules and orders applicable to the case as arc given or mentioned by or in this present Act.
No. IX.
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