Law of Evidence," and the Evidence Amendment Act, 1853, shall extend and apply to proceedings at law on the Revenue side of the Court; and any proceeding at law on the Revenue side of the Court shall not, for the purposes of this Act, be deemed a criminal proceeding within the meaning of the said sections and Act as extended and applied by the present section. See p. 220. The sections above referred to are printed above, pp. 665, 668. 35. The Revenue side of the Court, as a Court of Law, shall be deemed to be Application of a Court of Civil Judicature within the meaning of section one hundred and three sect. 103 of of the Common Law Procedure Act, 1854. 17 & 18 Vict. c. 125. See p. 220. The section referred to is set out above, p. 672. writ of distringas. 36. In a suit at law on the Revenue side of the Court a writ of distringas Abolition of against a corporation aggregate to compel an appearance shall not be necessary; but in such a suit a writ of subpoena or scire facias (as the case may require) may issue against a corporation aggregate to compel an appearance; and service of such writ may be effected by delivery thereof, or of a copy thereof, to the mayor or other head officer, town clerk, clerk, treasurer, or secretary of the corporation; and the like proceedings to judgment may be taken on a writ of subpoena or scire facias so issued as, according to the practice for the time being of the Court of Exchequer, may be taken on a like writ issued against an individual defendant. See p. 229. 37. In a suit at law on the Revenue side of the Court against a British Suits against subject resident out of the jurisdiction of the Court in any place except Scotland British subjects resident or Ireland, the informant may sue out against that person a writ of subpoena out of jurisbearing an indorsement stating that the writ is for service out of the jurisdiction diction of of the Court; and the time for appearance by the defendant to such writ shall Exchequer. be regulated by the distance from England of the place where he is resident; and the Court or a judge, on being satisfied by affidavit that the writ was personally served on the defendant, or that reasonable efforts were made to effect personal service thereof on him, and that it came to his knowledge, and either that he wilfully neglects to appear to the writ, or that he is living out of the jurisdiction of the Court in order to defeat the claim to which the information relates, may order from time to time that the informant be at liberty to proceed in the suit in such manner and subject to such conditions as to the Court or a judge seem fit, the time allowed for the defendant to appear being reasonable, and regard being had to the other circumstances of the case; but it shall be a condition precedent to the informant's obtaining judgment that he give proof of the merits of the claim to the satisfaction of the Court or a judge, or of the officer of the Court to whom the Court think fit to refer the matter. See pp. 152, 231. resident out 38. In a suit at law on the Revenue side of the Court against a person, not a Suits against British subject, resident out of the jurisdiction of the Court in any place except foreigners Scotland or Ireland, the like proceedings may be taken as against a British of jurisdiction subject resident out of the jurisdiction, save that in lieu of the form of writ of Exchequer. used in that case the informant shall issue a writ of subpoena commanding the Forms of writs in schedule. Omission to insert or indorse matters in or on writ not to nullify it. Amendment in case of substitution by mistake, &c. of one writ for another. Writs for defendant to appear within the time therein prescribed, after service on him of notice of the writ, and shall in manner aforesaid serve a notice of the writ on the defendant; and such service shall have the same effect as service of the writ of subpoena in a suit against a British subject resident out of the jurisdiction of the Court; and thereupon, by leave of the Court or a judge, on their or his being satisfied by affidavit, the like proceedings may be had and taken as aforesaid. See pp. 152, 231. 39. The forms of writs of subpoena and of notice given in the second schedule to this Act applicable in the respective cases aforesaid shall be used in those cases, with such variations as circumstances require, but general rules relating to the process and practice at law of the Revenue side of the Court may from time to time prescribe any such altered, additional, or substituted forms of writs of subpoena and notice for use in the respective cases aforesaid as seem fit, and the same shall be used accordingly. See pp. 152, 231. 40. If in any such case the informant omits to insert in or indorse on any writ or copy thereof any of the matters for the time being required to be inserted therein or indorsed thereon, such writ or copy shall not on that account be void, but it may be set aside as irregular, or it may be amended on such terms as to the Court or a judge may seem fit, either on an application to the Court or a judge for such amendment, or on an application to set aside the writ. See pp. 152, 213, 231. 41. If in any such case one form of writ of subpoena is by mistake or inadvertence substituted for another, such mistake or inadvertence shall not be an objection to the writ or any other proceeding in the suit, but on an ex parte application to a judge, either before or after an application to set aside such writ or any proceeding thereon, and whether the writ or notice thereof has been served or not, the writ may be amended by a judge without costs. See pp. 152, 213, 231. 42. A writ of subpoena for service out of the jurisdiction may be issued and service in and marked as a concurrent writ with one for service within the jurisdiction, and a writ of subpoena for service within the jurisdiction may be issued and marked as a concurrent writ with one for service out of the jurisdiction. out of jurisdiction. Affidavit may be sworn before a consul, &c. See pp. 152, 231. 43. An affidavit for the purpose of enabling the Court or a judge to make an order for liberty to proceed against a defendant resident out of the jurisdiction of the Court may be sworn at any foreign port or place before any of Her Majesty's consuls or vice-consuls there; and every affidavit so sworn may be used and shall be admitted in evidence, saving just exceptions; and judicial and official notice shall be taken of the seal or signature of the consul or vice-consul affixed or subscribed to any such affidavit. See note to next section. 44. If any person wilfully and corruptly makes a false affidavit before such False swearconsul or vice-consul he shall be deemed guilty of perjury, as if the false ing, perjury. affidavit had been made in England before competent authority, and may be dealt with, indicted, tried, and (if convicted) sentenced, and his offence may be laid and charged to have been committed, in any county or place in England in which he is in custody, as if the offence had been actually there committed. This section and sect. 43 were repealed by the Commissioners for Oaths Act, 1889 (52 & 53 Vict. c. 10), s. 12 and Schedule. See note to sect. 19. 45. No repeal or other provision in this part of this Act shall affect or apply to Provision as to any suit or proceeding instituted or taken before the commencement of this Act. Repealed by the Statute Law Revision Act, 1875 (38 & 39 Vict. c. 66). pending suits. Part IV.-CERTAIN OTHER CLASSES OF PROCEEDINGS WHERE THE CROWN IS INTERESTED. 46. Where a cause in which Her Majesty's Attorney-General on behalf of Provision for the Crown is entitled to demand as of right a trial at bar is at any time change of venue and for depending in any of Her Majesty's Superior Courts of law at Westminster, view. whether instituted before or instituted after the commencement of this Act, and the Attorney-General states to the Court that he waives his right to a trial at bar, the following provisions shall have effect: (1.) The Court, on the application of the Attorney-General, shall change the venue to any county in which the Attorney-General elects to have the cause tried: (2.) The Court may (if requisite) order that the sheriff of the county into which the venue is removed do cause a view to be had by jurors of that county (notwithstanding that the view must be taken and had by such sheriff and jurors out of their own county): (3.) For the purposes aforesaid the Court may make such orders as seem necessary or proper; and all such orders shall be binding on all sheriffs and other officers, and on all jurors and other persons concerned, and shall be sufficient warrant for the doing of everything thereby authorized or directed to be done: (4.) The powers of the judges of the Superior Courts of Law and of the judges of the Court of Exchequer as a Court of Revenue at law respectively to make general rules for the regulation of procedure and practice, and of costs, charges and expenses, shall extend to the making of such general rules as from time to time seem fit for the better execution of this section: (5.) Subject to any such rules, the provisions of the Common Law Procedure Act, 1852, and of any rules made under it, and all other law and practice for the time being in force relative to the change of venue and to views, shall extend to the cases of change of venue and view to which this section relates. Words in italics repealed by the Statute Law Revision Act, 1893 (56 & 57 Vict. c. 14). Venue and Trial at Bar are discussed generally, above, pp. 581, 587. 47. A commission to find a debt due to the Crown shall not be necessary for authorizing the issue of an immediate extent or of a writ of diem clausit Extents and writs of diem clausit extremum. Future Crown debts, &c. not to affect land till writ of execution issued and registered. extremum; and an immediate extent may be issued on an affidavit of debt and danger, and a writ of diem clausit extremum may be issued on an affidavit of debt and death (similar, mutatis mutandis, to the affidavit of debt and danger, or of debt and death, on which, after inquisition returned, an immediate extent or a writ of diem clausit extremum has been used to be issued), and on the fiat of the Chancellor of the Exchequer, or of a Baron of Her Majesty's Court of Exchequer at Westminster, or of a judge of Her Majesty's Court of Queen's Bench or Common Pleas at Westminster. See pp. 190, 206. 48. Any judgment, decree, or order obtained after the commencement of this Act by or on behalf of the Crown, or any recognizance entered into after the commencement of this Act on the proper account of the Crown, or any inquisition finding after the commencement of this Act a debt due to the Crown, or any obligation or specialty made after the commencement of this Act to the Crown, or any acceptance of office accepted after the commencement of this Act from or under the Crown, shall not affect any land (of whatever tenure) as to a bonâ fide purchaser for valuable consideration or a mortgagee (whether such purchaser or mortgagee have or have not notice of the judgment, decree, order, recognizance, inquisition, obligation, specialty, or acceptance of office), unless a writ of extent or of diem clausit extremum, or other writ or process of execution, in pursuance of or in relation to such judgment, decree, order, recognizance, inquisition, obligation, specialty, or acceptance of office, has been issued and registered before the execution of the conveyance or mortgage to such purchaser or mortgagee, and the payment by him of the purchase or mortgage money. See note to next section. Mode of registration, and discon tinuance of other modes of registration. Provisions of 25 Geo. III. c. 35, as to sale, &c. to apply in all cases. 49. The registration of such writ or process shall be effected as follows; namely,— a minute of the name of the person against whom the writ or process is issued, and of the date of the issuing thereof, and of the amount for which it is issued, shall be left with the Senior Master of the Court of Common Pleas at Westminster, who shall forthwith enter the same particulars in a book by the name in alphabetical order of the person against whom the writ or process is issued; and no other registration of such writ or process, or of the judgment, decree, order, recognizance, inquisition, obligation, specialty, or acceptance of office, in pursuance of or in relation to which it is issued, shall be necessary for any purpose. There shall be paid for every such entry a fee of two shillings and sixpence; and all persons shall be at liberty to search the said book, with the other books in the office, on payment of a fee of one shilling. This section and sect. 48 were repealed by the Land Charges Act, 1900 (63 & 64 Vict. c. 26), s. 5 and Schedule, and were replaced by the provisions of sect. 2 of that Act. (See p. 223, where the last-cited section is set out.) 50. The Act of the twenty-fifth year of the reign of King George the Third (chapter thirty-five), "for the more easy and effectual Sale of Lands, Tenements, and Hereditaments of Crown Debtors or of their Sureties," shall extend to authorize the sale, subject and according to the provisions of that Act, of any land taken in execution by virtue of any writ or process of execution issued after the commencement of this Act, by any Court of Law or Equity, for enforcing the payment of any sum of money to or in favour of the Crown. The Crown Debtors Act, 1785, applied by this section provides (sect. 1) that the Court of Exchequer, on application by the Attorney-General in a summary way by motion, may order the right, title and interest of any debtor to the Crown and of his heirs and assigns in any hereditaments which have been extended under a writ of extent or diem clausit extremum, or so much thereof as is sufficient to satisfy the debt, to be sold, and that the property shall be conveyed to the purchaser by the King's Remembrancer under the direction of the Court by deed to be enrolled in the Court. The surplus, if any, after payment of the Crown's debt and the costs, is to be paid to the persons who were entitled to the hereditaments so sold. By sect. 2, the Court has power to order the production of the title deeds. See further, pp. 151, 199. of the Crown. 51. Nothing in this part of this Act shall take away or abridge any pre- Saving the rogative or right of the Crown, in respect of priority or otherwise, over or prerogative against the creditors of any debtor or accountant to the Crown, and, save as in this part of this Act expressly provided, every prerogative or right of the Crown as against the land of any debtor or accountant to the Crown, or over or against the creditors of any such debtor or accountant, shall remain in all respects as if this part of this Act had not been enacted. See p. 162. 52. With respect to inquests of office or inquisitions after the commence- Inquiry on ment of this Act finding the title of Her Majesty in right of the Crown or in objection to inquisition right of the Duchy of Cornwall, or the title of the Prince of Wales and finding Duke of Cornwall, to any real property, the following provisions shall have Crown's effect: (1.) If in any such case a copy of the inquisition is served on any person, and such person thinks himself aggrieved by any description of boundary or other finding therein, he may within six months after such service, or within such enlarged time as Her Majesty's Court of Exchequer at Westminster or a judge may think fit to allow, file in the Office of the Court of Exchequer in which the inquisition is filed a statement in writing of his objection to the inquisition : (2.) On any such objection being filed, the Court of Exchequer or a Baron thereof, on the application of the proper officer on behalf of Her Majesty in right of the Crown or in right of the Duchy of Cornwall, or on behalf of the Prince of Wales and Duke of Cornwall (as the case may require), may appoint a fit person to inquire into the matter of the objection; and the person so appointed shall hold an inquiry on or near the land in question, or at some other convenient place (notice of the time and place for the holding of the inquiry being given to the person objecting); and for the purposes of such inquiry the person so appointed shall have power to summon witnesses and administer oaths: (3.) The person so appointed shall make a return in writing to the Court of Exchequer of the result of the inquiry, which return shall be filed in the Office in which the inquisition is filed; and if in any respect the return and the inquisition differ in effect, the inquisition shall be deemed to be altered so as to conform with the return: title. |