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1816.

MOODIE

V.

REID

and others.

of Appointment and Revocation made in exercise of powers in Deeds, Wills, and other Instruments. The Question raised in this Case is new, and of importance, and I think it proper to have the Opinion of a Court of Law.

N.B. A Case was sent to the Court of Common Pleas (a).

15th June. Exceptions, nunc pro tunc, may be filed to an

Answer to a Bill of Discovery.

BARING and others, v. PRINSEP and others.

THIS was a Bill for a Discovery, and an Answer was put in. An Order had been obtained that Exceptions should be received, nunc pro tunc.

Mr. Raithby now moved, that this Order might be discharged for irregularity, with Costs, and cited Hewart v. Semple (b) to show, that on a Bill for a Discovery, the Defendant has only eight Days to file Exceptions to an Answer; and observed, the eight Days had long elapsed; and that if such Exceptions were allowed, it would be a mode of evading the Payment of the Costs of such an Answer, which are payable when the time for excepting has expired (c).

Mr. Duckworth, contra, contended, there was no such Rule; and said, that on Inquiry he found there was no

(a) See Doe v. Pearce, a Case on this subject, recently published, 6 Taunt. 402.

(b) 5 Ves. 86.

(c) See Lord Redesdale's Tr. Pl. 164.

difference as to the Time allowed for Exceptions on a Bill of Discovery and a Bill for Relief. The Defendants did not apply for Costs on putting in their Answer.

The Motion stood over to inquire into the Practice; and afterwards, The Vice-Chancellor said, he had directed Inquiries to be made of the Registers, and He found there was no Distinction, as to the Time for Excepting, between Bills for Discovery and Bills for Relief.

Motion refused.

1816.

BARING and others,

0.

PRINSEP

and others..

WESTON v. JAY.

20th June.

AN Order was made on the 6th May 1816, that the An Order was Defendant, William Eagle, should, within four days made, that Deafter personal Notice, put in his Answer to Inter- fendant should, within four days, rogatories, or in default, a Serjeant at Arms to go against him. The Defendant put in an Answer, which put in an Answer was reported insufficient; and it was now moved on an Affidavit of Service of the Notice of the Order, and the Master's Certificate of the insufficiency of the Answer, that the Order of the 6th May should be made absolute, and the Serjeant at Arms directed to apprehend

the Defendant.

Mr. White, for the Motion:

It is established by several Cases, that when such an Order is obtained for want of an Answer to a Bill, and the Defendant puts in an insufficient Answer, such an Order as now prayed, is made, as appears from Broom

to Interrogatories, or in default a Serjeant at Arms to go against him. He put in an insuf

ficient Answer, and upon Motion, the Serjeant at Arms was directed to take him.

1816.

WESTON

v.

JAY.

field v. Chichester (a), East India Company v. Dacres (b), Waters v. Taylor (c), Boehm v. De Tastet (d). I cannot adduce any Case where the same doctrine has been applied to Answers to Interrogatories, but the Principle must be the same.

The VICE-CHANCELLOR:

On Principle, it is certainly the same, and I see no objection to the Motion.

Motion granted.

20th June. The Recognizance of a Surety for a Receiver

being estreated,

and an Action brought against such Surety, an application was

WALKER and others, v. WILD and others.

THE Receiver in this Cause, though duly summoned, had not passed his Accounts, but absconded with a considerable Sum in his hands. Upon application to the Master of the Rolls, his Recognizances were estreated, and an Action was brought against the Sureties.

One of the Sureties now applied for an Order, that made by him for it should be referred to the Master to see what was a reference to see due from the Receiver, and that he might be ordered to what was due,

and an Order for pay into the Bank of England, to the Credit of the Payment by In- Cause, such Sum as should be reported due, by Instalstalments, and ments, at three, six, and nine Months, after first deductfor an Injunction ing the Costs of, and attendant on, this Application, and to stay Proceedall subsequent Proceedings to be taken in consequence ings at Law. An Order, by Consent, was made accordingly, on paying the Costs of the Application, and of Proceedings consequent on the Order..

(a) 1 Dick. 379.
(b) 1 Cox, p. 343.

(c) 16 Ves. 417.

(d) 1 Ves. and Bea. 124.

thereof, so as such Sum did not exceed the amount of his Recognizance; and that all Proceedings in the Action at Law might be restrained.

Mr. Cross, for the Motion.

Mr Heald consented to the Motion, except so far as it prayed that the Costs of the Motion and of subsequent Proceedings should be deducted.

The VICE-CHANCELLOR:

The Surety must pay the Costs of this Motion, and of the subsequent Proceedings in consequence of it; in other respects, the Motion is regular.

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Motion granted.

ANGELL v. HADDON.

20th June.

MR. Barber moved on behalf of a Creditor, to be Creditor allowed,
allowed to prove his Debt under the Decree in this on Motion, to
Cause, which was upon a Creditor's Bill.
Creditor swore he was not aware of the Decree.

The prove his Debt under a Decree

upon a Creditor's Bill, though Mr. Wyatt opposed the Motion, on the ground that Money apporit was too late, the Money having been apportioned tioned amongst amongst the Creditors (the Assets being deficient) and the Creditors, and the Money transferred to the Accountant-General to transferred to pay them, and the Costs in the Suit. If such a Mo- the Accountant General; on paytion is allowed, it must be on paying the Costs of the Application, and the Expense of re-apportioning the Motion, and

the Funds amongst the Creditors.

ing the Costs of

of re-apportion

1816.

ANGELL

V.

HADDON.

The VICE-CHANCELLOR:

The Creditor must pay the Costs of this Application, and the Expense incident to the same in recasting the Apportionment of the Property amongst the Creditors.

12th, 27th June.

CONST and others, v. EBERS.

The Costs of in- A MOTION was made, that it might be referred sufficient Answers to one of the Masters, to tax the Plaintiffs their Costs are provided for of, and relating to, the contempt of the Defendant in by a general Rule. When Defennot putting in an Answer to the Plaintiffs Bill; and dant is in Cus- also their Costs of, and relating to, the four several tody for a Con- insufficient Answers afterwards put in by the Defendant to the Plaintiffs Bill; and that such Costs, when taxed, might be paid by the Defendant, to the Plaintiffs or their Solicitor.

tempt for not

putting in an Answer, and he puts in an Answer, which the Plain

tiff accepts, he
cannot recover

his Costs under
the Process of
Contempt, and,
it seems, he loses

them.

The Bill was filed the 3d February 1814. The first Answer was put in 7th June 1814, after Process of Contempt for not answering had issued. The Answer was excepted to, and the Exceptions allowed. The Defendant did not immediately put in another Answer, being advised by his Clerk in Court, that, before a further Answer could be enforced by Process of Contempt, he must be served with a Subpoena to put in a further Answer; but that was a mistake as to the Practice, and he was taken into the Custody of the Serjeant at Arms for want of an Answer. To emancipate himself from Prison, he immediately, 23d November 1814, put in a short Answer, which was referred upon the original Exceptions to the first Answer; and

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