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judgment of the House of Lords, which directed the plaintiff's bill to be dismissed with costs, meant that all costs should be paid up to the actual dismissal of the bill by the House of Lords, or the amount when the judgment of dismissal was pronounced. This was the only case from the Court of Exchequer, where the House of Lords had ordered a bill to be dismissed with costs. The universal charge of fraud in this bill, might have moved their Lordships in making such an order. They cited Howard v. Digby (1), and Lords' Journals, vol. 66, p. 809; the order by Lord Brougham, in Hall v. Lamb (2), and Seton on Decrees, p. 380, as to the forms of orders.

Mr. Knight replied.

LORD ABINGER, C.B.-When this case came originally before me, it was very much discussed as to what were the principles upon which I ought to proceed in maikng the order which I did make; and I was of opinion, that the true principle upon which I ought to proceed, was to consider that the House of Lords had given a judgment which the Court below ought to have given at the original hearing. The House of Lords declared, that the bill should be dismissed with costs; but it did not take upon itself the jurisdiction of dismissing the bill, and directing such further orders as might be necessary, in consequence of the erroneous decree of this Court; but it referred back the bill to this Court to make such order as would do justice between the parties, and to correct what had been done amiss under the erroneous decree. The intention of the House of Lords, I must presume, was, to pass the same judgment which, they were of opinion, Lord Lyndhurst ought to have passed when he heard the case originally. I think, therefore, that the order ought to be interpreted so as to give the costs only of the suit, up to the time when Lord Lyndhurst made his decree, and not of the subsequent proceedings in the suit. To do otherwise, would be to give costs that arose from what must now be supposed to be an error of the Judge, of which the parties were totally (1) 4 Sim. 588; s. c. 1 Law J. Rep. (N.s.) Chanc. 3; 5 Sim. 330.

(2) Not reported.

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Case in which a bill may be taken pro confesso against one executor, and a decree in another suit against the other executor.

A. and B. filed a bill against the executors C. and D; C. appeared, but not answering, was taken in contempt, but the plaintiffs having neglected to bring him up under the 11 Geo. 4. & 1 Will. 4. c. 36, he was discharged. A supplemental bill, in the terms of the original bill, was then filed against him only, to which he again appeared, but did not answer; he was then taken on attachment, and the bill afterwards taken pro confesso as against him, and an account decreed as prayed for. The original bill was then proceeded within, in his absence:—Held, that it was properly so proceeded with, and that the accounts should be taken in that cause against D, but the Master was to make one report only, headed in both causes.

In a bill against executors for a moiety of a specific legacy by one only of the parties entitled, the Court will not dismiss the bill for want of the person entitled to the other moiety not being a party.

The original bill, in this case, was filed on the 30th of August 1837, by John Hughson, and Ellen, his wife, against Thomas Cookson, Charles Smith, and Mary, his wife, and it stated that George Brooks, late of Hoofield, in the parish of Tarvin, in the county of Chester, by his will, dated the 21st of November 1824,

after directing the payment of his debts. funeral expenses, &c., to be paid out of his personal estate, and, subject thereto, gave and bequeathed to his daughter Martha, 150., and to his daughter Ellen, 3007., to be paid to them out of his ready money or any money that might be secured to him by mortgage or otherwise, at the time of his death, which respective legacies he ordered to be paid to his said daughters when his youngest daughter should attain the age of twenty-one; but if his daughter Martha should die, leaving no child or children, before his youngest daughter attained the age of twenty-one, then for her share to be divided amongst his other children, in equal portions, share and share alike, but, provided she should have either child or children, then the 150l. was to be applied towards bringing them up. And after devising all his real estates in manner therein mentioned, the testator gave the residue and remainder of his personal estate and effects to his wife, Mary Brooks, for her own use and benefit, to be disposed of as she might think proper; and he nominated and appointed his wife and Thomas Cookson, executrix and executor of his will.

George Brooks died shortly after the date of the will, leaving his wife, the above two daughters, and his son, Thomas Brooks, his only children surviving him.

Martha, one of the daughters, intermarried with Richard Goulban, and died on the 10th of May 1831, leaving no issue, and before Ellen attained twenty-one, which she did on the 19th of April 1833, having in the preceding January married. the plaintiff, John Hughson. By the death of Martha, the legacy bequeathed to her of 150l., became divisible between Ellen Hughson and Thomas Brooks, as the only surviving children of the testator George Brooks. The widow, Mary Brooks, (who afterwards married the defendant, Charles Smith,) and Thomas Cookson, soon after the death of the testator, proved the will, took possession of, and got in the personal estate of the testator, and paid the plaintiff, Ellen Hughson, 50., towards her legacy of 3001. The bill then, after charging that the residue of the personal estates after payment of debts, &c., was more than sufficient to pay these legacies, &c., prayed for an ac

count of what was due to the plaintiffs in respect of the legacy of 300l., and a moiety of the legacy of 150l., with interest; and that the defendants might admit assets in their hands for the payment of what should be found due, or that an account might be taken of the testator's personal estate and effects, and of the application thereof, and that the residue might be applied in payment of what should be found due.

The bill did not allege that Brooks had been satisfied with his moiety of the 150l. The defendants Charles and Mary Smith, by their answer denied that the surplus was sufficient for the payment of the legacies in question, and stated that 731. 11s. 8d., and not 50l, was the sum which they had paid the plaintiff.

The defendant Cookson appeared, but not answering, he was taken on an attachment, but the plaintiffs having neglected. to bring him up under Sir Edward Sugden's Act, (the 11 Geo. 4. & 1 Will. 4. c. 36,) he was discharged. Upon this, the plaintiff dismissed the original bill, as against Cookson, and filed a supplemental bill in the terms of the original bill, against him only, to which he appeared, but again having omitted to put in his answer, he was taken on an attachment, and the bill was afterwards taken pro confesso as against him, when it was referred to the Master to take the account as prayed by the bill.

Mr. Simpkinson and Mr. Harwood, for Mr. and Mrs. Smith, finding that Cookson did not appear on the hearing, took an objection, on the ground of his not being before the Court, contending that the Court I would not direct an account to be taken against one only of two executors; for, although Cookson, one of the two executors, was an original party to this bill, he was not now before the Court. Neither would the Court direct an account as to a moiety of a legacy in the absence of Thomas Brooks, the person entitled to the other moiety, and in the absence of an allegation that he was satisfied-Munch v. Cockerell (1). They contended, that the plaintiff ought to have dismissed his original bill against both executors, and then have proceeded de novo.

(1) 8 Sim. 219; s. c. 6 Law J. Rep. (N.s.) Chanc. 9.

Mr. Spence and Mr. Dixon, for the plaintiffs. With respect to the first objection, Cookson having been taken on an attachment for want of answer, and the plaintiffs having neglected to bring him up under Sir E. Sugden's Act, he was discharged. Under these circumstances, as he could not be taken on a fresh attachment, it became necessary for them to proceed de novo against him, which was done, dismissing the first bill as against him, and by filing a supplemental bill, to which he appeared, but again having omitted to put in his answer, he was taken on attachment, and the bill was afterwards taken pro confesso as against him, and a decree made in the terms of the prayer of the bill. The decree, therefore, to be now pronounced, would be so far special as to recite the decree against Cookson, and the account be taken, and one report made in both causes. In Williams v. Townshend (2), a defendant who had been taken on an attachment for want of appearance, was discharged under the 11 Geo. 4. & 1 Will. 4. c. 36, before the plaintiff got an appearance for her, and it was held, that though a fresh subpoena might be issued against the de

(2) 6 Sim. 296.

fendant, no attachment could be taken out upon it. The very same point was raised there as in this case. This objection must consequently fail. Then as to the other objection: this was not a bill generally to administer assets, but a bill for a specific legacy, which they had a right to file, without making the person entitled to the other moiety a party; for, although it was a legacy of a moiety, yet it was a moiety of a specific sum, to which the case of Munch v. Cockerell in no way applied. That case was also distinguishable from this, inasmuch as there was there a charge of a breach of trust.

ALDERSON, B., in overruling both objections, said, that the dismissal of the original bill, and proceeding under the supplemental one, was the only mode of proceeding left to the plaintiff. And with respect to the suit being for a moiety of a particular legacy, he thought a claim to the moiety of 150l., was the same thing as a claim to a specific legacy of 75l., and that the owners of both moieties need not be before the Court. Though the accounts were to be taken separately, the Master was to make only one report, headed in both causes.

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GENERAL ORDERS IN EQUITY.

Tuesday, June 11, 1839.

The Court doth hereby order and direct in manner following, that is to say :

Order in case of several suits for the same matter.

I. That in all cases in which it shall be alleged that the plaintiff is prosecuting the defendant in this court and also in some other court for the same matter, the defendant, in eight days after filing his answer, or further answer, to the plaintiff's bill, shall be entitled as of course, on motion, to the usual order for the plaintiff to make his election in which court he will proceed, with the usual directions in that behalf, unless the plaintiff shall, before the expiration of the same eight days, have filed exceptions to the defendant's answer, or taken to his further answer the former exception; and in case such exceptions shall be overruled on argument or otherwise, the defendant shall then be entitled as of course, on motion, to the usual order, for the plaintiff to elect in which court he will proceed, with the usual directions. But in either of such cases the plaintiff shall be at liberty to move that such order may be discharged on the merits confessed in the

answer.

Order to amend. Time to amend.

II. That every order obtained as of course to amend a bill shall contain an undertaking by the plaintiff to amend the bill within three weeks from the time of the order being obtained, and in default of the plaintiff amending his bill within that period, the order shall stand discharged without further motion, unless the Court shall in the meantime on special motion make order to the contrary.

Withdrawing Replication.

III. That after a replication has been filed, the plaintiff shall not be permitted to withdraw it and amend the bill without special motion, supported by affidavit, stating the substance of the proposed amendment, and that the same is material, and accounting satisfactorily for such matter not having been introduced sooner into the bill.

Attachment for non-payment of Costs or Money.

IV. That writs of attachment against parties on the record for non-payment of costs, or for nonpayment of money ordered or decreed to be paid into court, or to any party on the record, shall be issued by the clerks in court without order, upon affidavit being filed of due service of the subpoena for costs, decree, or order, and on the default being verified by affidavit, or in case of the money being ordered to be paid into court, by the AccountantGeneral's certificate of the money not having been paid.

Preliminary Inquiries may be directed at any time after Appearance.

V. That in cases in which it shall appear that certain preliminary accounts and inquiries must be

taken and made, before the rights and interests of the parties to the cause can be ascertained, or the questions therein arising can be determined, the plaintiff shall be at liberty, at any time after the defendants shall have appeared to the bill, to move the Court, on notice, that such inquiries and accounts shall be made and taken, and that an order referring it to the Master to make such inquiries and take such accounts shall thereupon be made, without prejudice to any question in the cause, if it shall appear to the Court that the same will be beneficial to such (if any) parties to the cause as may not be competent to consent thereto, and that the same is consented to by such (if any) of the defendants as being competent to consent have not put in their answer to the bill, and that the same is consented to by, or is proper to be made upon, the statements contained in the answers of such (if any) of the defendants as have answered the bill.

Teste and Return of Writs ;-taking Bill pro confesso.

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

cases.

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

Subpoena: Costs and Fees in respect of.

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

Scandal and Impertinence :- Costs.

IX. That all orders to refer an answer or other pleading or matter depending before the Court for scandal or impertinence, shall contain a direction for the Master to expunge any such scandalous or impertinent matter as he shall find therein, and

which shall have been the subject of the reference, and the Master shall be at liberty, without further order, to tax the costs of such reference and consequent thereon, and the same shall be paid by the party against whom the said order of reference shall have been obtained, if the said answer or other pleading or matter shall be certified to be scandalous or impertinent, or by the party obtaining the said order of reference, if the said answer or other pleading or matter shall be certified not to be scandalous or impertinent, and the same shall be recoverable in like manner as other costs, but such

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WRITS OF ELEGIT AND FIERI FACIAS.

Wednesday, June 12, 1839.

The Court doth hereby order and direct in manner following, that is to say:

Fieri facias or Elegit may be had after a month from

Order for Payment of Money or Costs.

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

Date of Entry to be marked on Writ.

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

Execution, and Return of Fieri facias and Elegit.Sheriff's Fees.

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

Venditioni Exponas.

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

Indorsement on Writ.

V. That on every such writ of fieri facias and elegit, so to be issued as aforesaid, there shall be indorsed the words " By the Court," and also thereunder the calling and place of residence of the party against whom such writ shall be issued, and also the name and residence or place of business of the solicitor at whose instance the same shall be issued, and the name of the clerk in court issuing the same, and that every such writ be also indorsed for the sum to be levied, costs of writ, sheriff's poundage, &c. according to the form used upon like writs issuing out of the superior Courts of Common

Law.

Fees to Clerk in Court, and Solicitor on Fieri facias and Elegit.

VI. That for every such writ of fieri facias or venditioni exponas, so to be issued as aforesaid, there shall be allowed to the clerk in court issuing the same, the sum of 8s. 7d., and for every such writ of elegit the sum of 1. 10s., and that there be allowed to the solicitor at whose instance any such writ of fieri facias, elegit, or venditioni exponas shall be issued, the sum of 6s. 8d. for instructions for the said writ, and that there be also allowed to such solicitor the further sum of 6s. 8d. for attending to procure a warrant, and for attending to instruct the officer charged with the execution of such writ.

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