such things as by the statute passed in the second year of our reign you are authorized and required to do in this behalf. And in what manner you shall have executed this our writ, make appear to us, in our said Court, immediately after the execution thereof. And have there then this writ. Witness, &c. No. 5.-Writ of Fieri Facias, on a Decree or Order of the Court of Chancery for Payment of Costs. VICTORIA, &c.

greeting.

To the Sheriff of We command you, that of the goods and chattels of C. D. in your bailiwick, you cause to be made the sum of £, for certain costs which were lately before us in our High Court of Chancery, in a certain cause, or certain causes, (as the case may be,) wherein A. B. is plaintiff, and C. D. is defendant, or in a certain matter there depending, intituled, "In the matter of E. F." (as the case may be), by a decree or order (as the case may be) of our said Court, bearing date the day of - decreed

or ordered (as the case may be) to be paid by the Said C. D. to A. B., and which costs have been taxed and allowed by G. H., Esq., one of the Masters of our said Court, at the said sum of £ as appears by the certificate of the said Master, dated the day of And that of the goods and chattels of the said C. D. in your bailiwick, you further cause to be made interest on the said sum of £ -, at the rate of £4 per centum per annum, from the day of (1), and that you have that money and interest before us, in our said court, immediately after the execution hereof, to be paid to the said A. B. in pursuance of the said decree or order (as the case may be). And that you do all such things, as by the statute passed in the 2nd year of our reign, you are authorized and required to do in this behalf. And in what manner you shall have executed this our writ, make appear to us in our said court immediately after the execution thereof. And have there then this writ. Witness, &c.

No. 6.-Writ of Elegit on a Decree or Order of the Court of Chancery, for Payment of Money, or Money and Interest.

VICTORIA, &c.

To the Sheriff of

greeting.

Whereas lately in our High Court of Chancery, in a certain cause or certain causes (as the case may be) there depending, wherein A. B. and others are plaintiffs, and C. D. and others are defendants, or in a certain matter there depending, intituled, "In the matter of E. F." (as the case may be), by a decree or order (as the case may be) of our said Court, made in the said cause or matter (as the case

may be), and bearing date the day of ―, it

was decreed and ordered, or ordered (as the case may be), that the said C. D. should pay unto A. B. the sum of £ [if interest be given by the order, say, "together with interest thereon, after the rate of £4 per centum per annum, from the day of -"] and afterwards, the said A. B. came into our said Court of Chancery, and, according to the

(1) The date of the Master's certificate; or if that were prior to the 1st October 1838, say, "from the 1st day of October 1838."

form of the statute in such case made and provided, chose to be delivered to him, her, or them (as the case may be) all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough; and also such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure in your bailiwick, as the said C. D., or any one in trust for him, was seised or possessed of on the day of, in the year of our Lordor at any time afterwards, or over which the said C. D., on the said day of (2), or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit, to hold to him the said goods and chattels as his proper goods and chattels, and to hold the said lands, tenements, rectories, tithes, rents, and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said sum of £ together with interest thereon, at the rate of £4 per centum per annum, from the said day of

- (3), shall have been levied. Therefore we command you, that without delay you cause to be delivered to the said A. B., by a reasonable price and extent, all the goods and chattels of the said C. D., in your bailiwick, except his oxen and beasts of the plough; and also all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold and customary tenure, in your bailiwick, as the said C. D., or any person in trust for him, was seised or possessed of on the said day of - (2), or at any time afterwards, or over which the said C. D. on the said day of (2), or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit. To hold the said goods and chattels to the said A. B. as his proper goods and chattels, and also to hold the said lands, tenements, rectories, tithes, rents, and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said sum of £, together with interest as aforesaid, shall have been levied. And in what manner you shall have executed this our writ, make appear to us in our Court of Chancery aforesaid, immediately after the execution thereof, under your seal and the seals of those by whose oath you shall make the said extent and appraisement. And have there then this writ. Witness ourself at Westminster, &c.

No. 7.-Writ of Elegit, on a Decree or Order of the Court of Chancery for Payment of Costs. VICTORIA, &c.

in a certain matter there depending, intituled, “In the matter of E. F." (as the case may be), by a decree or order (as the case may be) of our said Court, made in the said cause or matter (as the case may be), and bearing date the

day of it was decreed and ordered, or ordered (as the case may be), that C. D. should pay unto A. B. certain costs as in the said decree or order (as the case may be) mentioned, and which costs have been taxed and allowed by G. H., Esq., one of the Masters of our said Court, at the sum of £ - as appears by the certificate of the said Master, dated the day of -. And afterwards the said A. B. came into our said Court of Chancery, and, according to the form of the statute in such case made and provided, chose to be delivered to him all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick, as the said C. D., or any one in trust for him, was seised or possessed of on the day of, in the year of our Lord (1), or at any time afterwards, or over which the said C.D., on the said day of -(1), or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit; to hold to him the said goods and chattels as his proper goods and chattels, and to hold the said lands, tenements, rectories, tithes, rents, and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said sum of £ together with interest thereon, at the rate of £4 per centum per annum, from the said day of (2), shall have been levied. THEREFORE WE COMMAND you, that without delay you cause to be delivered to the said A. B., by a reasonable price and extent, all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands and tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick, as the said C. D., or any person or persons in trust for him, was or were seised or possessed of, on the said

day of -(1), or at any time afterwards, or over which the said C. D., on the said day of (1), or at any time afterwards, had any disposing power, which he might, without the assent of any other person or persons, exercise for his own benefit; to hold the said goods and chattels to the said A. B. as his proper goods and chattels, and also to hold the said lands, tenements, rectories, tithes, rents, and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said sum of £, together with interest as aforesaid, shall have been levied. And in what manner you shall have executed this our writ, make appear to us in our Court of Chancery aforesaid, immediately after the execution thereof, under your seal and the seals of those by whose oath you shall make

(1) The date of the Master's certificate of taxation. (2) The date of the Master's certificate of taxation; or if that were prior to the 1st October 1838, say, "from the 1st day of October 1838."

Whereas, lately in our High Court of Chancery, in a certain cause or certain causes (as the case may be) there depending, wherein A. B. and others are plaintiffs, and C. D. and others are defendants, or in a certain matter there depending, intituled, "In the matter of E. F." (as the case may be), by a decree or order (as the case may be) of our said Court, made in the said cause or matter (as the case may be), and bearing date the day of - it was decreed and ordered, or ordered (as the case may be), that C. D. should pay unto A. B. the sum of £ together with certain costs, as in the said decree or order (as the case may be) mentioned, and which costs have been taxed and allowed by G. H., Esq., one of the Masters of our said Court, at the sum of £ as appears by the certificate of the said Master, dated the day of And afterwards the said A. B. came into our said Court of Chancery, and, according to the form of the statute in such case made and provided, chose to be delivered to him all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick, as the said C. D., or any one in trust for him, was seised or possessed of, on the day of —, in the year of our Lord (3), or at any time afterwards, or over which the said C. D., on the said. day of -, or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit; to hold to him the said goods and chattels, as his proper goods and chattels, and to hold the said lands, tenements, rectories, tithes, rents, and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of £. and £ with interest upon the said sum of £ rate of £4 per centum per annum, from the day (4), and on the said sum of £. at the rate aforesaid, from the day of (2), shall have been levied. THEREFORE WE COMMAND you, that without delay you cause to be delivered to the said A. B., by a reasonable price and extent, all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands and tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick, as the said C. D., or any person or persons in trust for him, was or were seised or possessed of, on the said day of. (3), or at

of

together at the

(3) The day on which the decree or order was made. (4) The day on which the decree or order was made; or in case it was made prior to the 1st of October 1838, say, "from the 1st day of October

1838."

any time afterwards, or over which the said C. D., on the said -day of. -(1), or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit, to hold the said goods and chattels to the said A. B. as his proper goods and chattels, and also to hold the said lands, tenements, rectories, tithes, rents, and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of £ and £ -, together with interest aforesaid, shall have been levied. And in what manner you shall have executed this our writ, make appear to us in our Court of Chancery aforesaid, immediately after the execution thereof, under your seal and the seals of those by whose oath you shall make the said extent and appraisement. And have there then this writ.

Witness ourself at Westminster, &c.

No. 9.-Writ of Elegit on a Decree or Order of the Court of Chancery, for Payment of Money, Interest, and Costs.

Whereas, lately in our High Court of Chancery, in a certain cause or certain causes (as the case may be) there depending, wherein A. B. and others are plaintiffs, and C. D. and others are defendants, or in a certain matter there depending, intituled, "In the matter of E. F." (as the case may be) by a decree or order (as the case may be) of our said court, made in the said cause or matter (as the case may be) and bearing date the day of it was ordered and decreed, or ordered (as the case may be) that C. D. should pay unto A. B. the sum of £ together with interest thereon, after the rate of £4 per centum per annum, from the day of -, together also with certain costs, as in the said decree or order (as the case may be) mentioned, and which costs have been taxed and allowed by G. H., Esq., one of the Masters of our said court, at the sum of £. as appears by the certificate of the said Master, dated the day of And afterwards the said A. B. came into our said Court of Chancery, and according to the statute in such case made and provided, chose to be delivered to him all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough; and also all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure in your bailiwick, as the said C. D., or any one in trust for him, was seised or possessed of on the - day of, in the year of our Lord (1), or at any time afterwards, or over which the said C. D. on the said day of —(1), or at any time afterwards, had any disposing power which he might, without the assent of any other person, exercise for his own benefit: to hold to him the said goods and chattels as his proper goods and chattels, and to hold the said lands, tenements, rectories, tithes, rents, and heredita- . ments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of £ and £, to(1) The day on which the decree or order was made.

-)

gether with interest upon the said sum of £, at the rate of £4 per centum per annum, from the said day of (2), and on the said sum of £at the rate aforesaid, from the day of. (3), shall have been levied. Therefore we command you, that without delay you cause to be delivered to the said A. B., by a reasonable price and extent, all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands and tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure in your bailiwick, as the said C. D., or any person or persons in trust for him, was or were seised or possessed of, on the said day of (1), or at any time afterwards, or over which the said C. D. on the said day of. or at any time afterwards, had any disposing power which he might, without the assent of any other person, exercise for his own benefit, to hold the said goods and chattels to the said A. B. as his proper goods and chattels, and also to hold the said lands, tenements, rectories, tithes, rents, and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of £—, and £- together with interest as aforesaid, shall have been levied. And in what manner you shall have executed this our writ, make appear to us in our Court of Chancery aforesaid, immediately after the execution thereof, under your seal and the seals of those by whose oath you shall make the said extent and appraisement. And have there then this writ.

Witness ourself at Westminster, &c.

No. 10.-Writ of Venditioni Exponas. VICTORIA, &c.

greeting.

To the Sheriff of Whereas by our writ we lately commanded you, that of the goods and chattels of C. D. (here recite the fieri facias to the end). And on the day of

-, you returned to us in our Court of Chancery aforesaid, that by virtue of the said writ to you directed, you had taken goods and chattels of the said C. D. to the value of the money and interest aforesaid, which said goods and chattels remained in your hands unsold for want of buyers. Therefore we, being desirous that the said A. B. should be satisfied his money and interest aforesaid, command you, that you expose to sale and sell, or cause to be sold, the goods and chattels of the said C. D. by you in form aforesaid taken, and every part thereof, for the best price that can be gotten for the same, and have the money arising from such sale before us in our said Court of Chancery aforesaid, immediately after the execution hereof, to be paid to the said A. B. And have

Practice. Pleading-Parties-Demurrer-Principal and Surety.

A, together with B. as his surety, signed a promissory note for 100l., and afterwards executed a deed of assignment of his effects to trustees, for the benefit of his creditors, which assignment contained the usual release from the creditors to A. The payee of the note executed this deed with the consent of B, who requested him to receive such dividends as might be payable thereunder, and undertook to pay the difference. It having been decided, in an action at law, that the remedy at law of the payee against B. was lost, the payee filed a bill against B, stating, that A. was a debtor to him to a larger amount than the amount of the promissory note and interest due thereon, and prayed an account of what was due on such note, and that B. might be decreed to pay it :-A general demurrer to this bill, for want of equity, was overruled; but it was held, that A. was a necessary party to the suit.

The bill stated, that Francis Stuart, together with John Agar, on the 5th of July 1836, signed a joint and several promissory

note, to pay to the trustees of the Lincoln and Lindsey Banking Company, or their order, 100l., with interest, the value whereof the plaintiff was, by due indorsement thereof and otherwise, entitled to receive and discharge: that the promissory note was signed by Stuart, as a surety on behalf of Agar, who was then, and thence up to the filing of the bill, a debtor to the said banking company to a larger amount than the sum of 100l., and the interest due or to become due thereon: that by a certain indenture, dated the 15th of June 1837,. Agar made a general assignment of his property to trustees, for the benefit of his creditors; and after payment of all the debts due to the creditors who should execute the deed, the surplus, if any, was to be paid to Agar; and the deed contained the usual release, from all the creditors who signed it, to Agar, from all claims on account of their respective debts: that after this indenture had been executed by Agar, application was made, on behalf of himself and his creditors, to the manager of the said banking company, to execute the indenture of assignment, and release Agar from the debt due from him to the banking company, and to signify the assent of the company to accept the provision

made for the payment of his debts by the indenture; but the manager refused to execute or sign the same till he had obtained the consent of Stuart, that he might do so without prejudice to the security aforesaid, or to the liability of Stuart as surety, although the manager should, by signing such indenture, release Agar from all claims on him personally in respect of the said debt; and the manager, acting on this precaution and intention, on the 30th of June 1837 wrote the following letter to the defendant Stuart :

"Lincoln and Lindsey Banking Company, Gainsborough, 30th of June 1837. Mr. J. Stuart,—Sir,-You are doubtless aware, that Mr. John Agar, of this place, the party whom you are surety for the above company, has lately made an assignment for the benefit of his creditors: the company will concur in the assignment for the balance due to them. If you consent that they should do so, you will please to signify the same in writing, and then we shall have to claim from you the balance, less the dividend received from Agar's estate."

That on the 11th of July 1837, Stuart called at the bank, and conversed with the manager on the subject of his letter; and he then said, alluding to Agar's insolvency and assignment, that it was a bad job, and wished the manager to execute the assignment, receive the dividend, and he would pay the difference; and he then expressly authorized the said manager to execute the assignment, without prejudice to Stuart's continuing liability to pay the note for 1007. and interest, which he, Stuart, then and there promised to pay, notwithstanding the said indenture, which had been executed as agreed on; but he did not sign any writing: and thereupon the said manager was instructed to execute the said indenture of assignment; and he, having full authority to release Agar personally from the payment of the said debt, executed the same indenture accordingly; and the said manager, being desirous to have the said authority and consent of Stuart confirmed by writing, he again wrote to Stuart for his written concurrence to prove against Agar's estate, and to execute the said indenture; and in reply to the said last-mentioned letter, he received from

Stuart a letter, dated Hull, 29th July 1837, in the following words :

"Sir, I shall feel much obliged if you can allow the surety to remain a few weeks longer, and I will pay the 1007. that I am bound for John Agar."

That no payment having been made by Stuart, the plaintiff caused him to be sued at common law for the sum of 100l. and interest. Stuart demurred to the plaintiff's claim at common law, and his demurrer was allowed, from the insufficiency of the promise of Stuart, and the manner in which the same was made, to enable the plaintiff to maintain his said action against the defendant at common law.

The bill prayed an account of what was owing to the plaintiff, by virtue of the said promissory note for 100l., for principal and interest due thereon; and that Stuart might be decreed to pay the same.

The bill did not contain any offer to account for any dividends received under the deed of assignment.

To this bill, the defendant put in a general demurrer for want of equity, and also a demurrer for want of parties, on the ground that Agar was a necessary party.

Mr. James Russell, in support of the demurrer, contended, that Stuart, the surety, had been exonerated from his liability in respect of this promissory note, by the release of Agar, the principal, by the indenture which had been executed; and that the plaintiff had not taken sufficient precaution to preserve his remedy in equity against Stuart; and the alleged arrangement was made between the creditor and the surety without the privity of the principal. With regard to the demurrer for want of parties, the rule, as laid down in Cockburn v. Thompson (1), was, that “a plaintiff suing upon a joint and several bond must bring forward all the obligors, principals, and sureties"-Ex parte Glendinning (2), Lawson v. Wright (3).

Mr. Pemberton and Mr. Wright, in support of the bill, contended, that as the assignment was executed with the consent of Stuart, and upon an express undertaking on his part to make good the whole amount for which the note was given, that agree

(1) 16 Ves. 326. (2) Buck, 560. (3) 1 Cox, 276.