Imágenes de páginas
PDF
EPUB

$$ 27-29. dockets and judgments in the Court of Queen's Bench

within twenty-one days after the making of the order, otherwise the order and any judgment signed or entered up thereon, and any execution issued or taken out on such

judgment, shall be void. Application of 28. The provisions of the said Act of the third year of 3 Geo. IV. c. 39, and 6 & King George the Fourth, and of the Act of the session of 7 Vict.c. 66, the sixth and seventh years of Her Majesty's reign to judge's orders.

(chapter sixty-six), “ to enlarge the provisions of an Act for preventing frauds upon creditors by secret warrants of attorney to confess judgment,” for liberty to file a warrant of attorney or cognovit actionem, or a copy thereof, with the clerk of the dockets and judgments, and for that clerk to make certain entries and search in relation thereto, and for entering satisfaction thereon, and for fees for search, and filing and taking office copies, shall extend and be

applicable to every such judge's order. Exemption 29. Nothing in this Act contained shall affect the from Act of foreign custom of foreign attachment as exercised by any comattachment,

petent Court, or the proceedings in relation to such custom.

The process of foreign attachment authorizes the detention of the debtor only until final judgment, and this section, while preserving the custom, does not extend its operation so as to render lawful the detention of the debtor after judgment. (Re Wilkins, L. R. 8 Q. B. 107.)

Under section 135 of the Act of 1849 it was provided “that every warrant of attorney to confess judgment in any personal action, given by any bankrupt, after the commencement of that Act, and within two months of the filing of a petition for adjudication of bankruptcy by or against such bankrupt, and being for or in respect of (wholly or in part) an antecedent debt or money demand, and every cognovit actionem or consent to a judge's order for judgment given by any bankrupt, at any time after the commencement of this Act, and within two months of the filing of any such petition in any action commenced by collusion with the bankrupt, and not adversely, or purporting to have been given in an action, but having been in fact given before the commencement of any action against

8 29.

the bankrupt, such bankrupt being unable to meet his engagements at the time of giving such warrant of attorney, cognovit actionem or consent (as the case may be), shall be deemed and taken to be null and void, whether the same shall be given by such bankrupt in contemplation of bankruptcy or not."

This section was not re-enacted in the Act of 1869, nor does the new Act contain any section of like effect. Section 92 of the Bankruptcy Act, 1869, was not, nor is section 48 of the new Act of the same effect, for a warrant was under the Act of 1849 null and void if made within two months of the filing of the petition, quite irrespective of contemplation of bankruptcy, or a view of preferring one creditor over the others.

The custom of foreigu attachment in the City of London has practically ceased to be operative since the decision in Mayor of London v. London Joint Stock Bank, 6 App. Ca. 393.

556

GENERAL ORDER

OF THE HIGH COURT OF CHANCERY

UNDER
THE DEBTORS ACT, 1869.

Friday, the 7th day of January, 1870. The Right Honourable William Page Baron Hatherley, Lord High Chancellor of Great Britain, by and with the advice and assistance of the Right Honourable John Lord Romilly, Master of the Rolls, the Right Honourable the Lord Justice Sir George Markham Giffard, the Honourable the Vice-Chancellor Sir John Stuart, the Honourable the ViceChancellor Sir Richard Malins, and the Honourable the ViceChancellor Sir William Milbourne James, doth hereby, in pursuance and execution of the powers given to him by the Debtors Act, 1869, and of all other powers and authorities enabling him in that behalf, order and direct in manner following:

I.--Indorsement on Decrees and Orders. 1. The 10th Rule of the 23rd of the Consolidated General Orders shall be varied, and as varied shall be as follows:

Every decree or order made in any suit or matter, requiring any person to do an act thereby ordered, shall state the time, or the time after service of the decree or order, within which the act is to be done; and upon the copy of the decree or order which shall be served upon the person required to obey the same, there shall be endorsed a memorandum in the words or to the effect following, viz. :-“If you, the within-named A.B., neglect to obey this decree (or order] by the time therein limited you will be liable to have your property sequestered for the purpose of compelling you to obey the same decree (or order], and you may also be liable to be arrested and committed to prison.”

0.1.

557

0.2-6.

II.Enforcing Decrees and Orders by Attachment, Serjeant

at-Arms, and Sequestration. 2. The 3rd Rule of the 29th of the Consolidated General Orders is hereby abrogated.

3. Where any person is by a decree or order made in any suit or matter directed to pay money or costs in a limited time, and, after due service of such decree or order, refuses or neglects to make such payment according to the exigency of such decree or order, the person prosecuting such decree or order shall, at the expiration of the time limited for such payment, be entitled to a Commission of Sequestration, which may be issued by the Clerks of Records and Writs, without any special order, upon production of evidence to the same effect as that which would heretofore have been required on issuing a Writ of Attachment for default in making such payment.

4. The form of subpoena for costs mentioned in Schedule E. to the Consolidated General Orders shall be varied by omitting therefrom the words “ an attachment issuing against your person and :" Provided always that where a subpoena is issued for costs payable under a decree or order, which states that payment thereof may be enforced by attachment, as mentioned in the 9th Rule of this Order, then the subpoena shall be in the form heretofore used.

5. Where any person is, by a decree or order made in any suit or matter, directed to pay costs, without a time being limited for such payment, and does not upon due service of a subpæna for such costs make such payment, the person to whom such costs are payable shall, immediately upon such default, be entitled to a Commission of Sequestration, which may be issued by the clerks of records and writs without any special order, upon production of evidence to the same effect as that which would heretofore have been required on issuing a Writ of Attachment for default in making such payment.

6. Where any person is by a decree or order made in any suit or matter directed to do any act other than or besides the payment of money or costs, and, after due service of such decree or order, refuses or neglects to do such act according to the exigency of the same decree or order, the person prosecuting such decree or order shall, at the expiration of the time

0. 6-8. licital for the performance thereof. be entitled to a writ or

writs of attachment against the disobedient person. And in case such person shall be taken or detained in custody under any such srit of attachment without obeying the same decree or order, then the person prosecuting the same decree or order shall, upon the sheriff's return that the disobedient person has been so taken or detained, be entitled to a Commission of Sequestration against his estate and effects. And in case the sheriff shall make the return non est intentus to such Writ or Writs of Attachment, the person prosecuting such decree or order shall be entitled at his option, either to a commission of sequestration in the first instance, or otherwise to an order for the Serjeant-at-arms, and to such other process as he was formerly entitled to upon a return non est inrentus made by the Commissioners named in a Commission of Rebellion issued for the non-performance of a decree or order.

7. Where, by any decree or order, a trustee or person acting in a fiduciary capacity is ordered to pay in a limited time any sum of money in his possession or under his control, or a solicitor is ordered to pay in a limited time costs for misconduct as such solicitor, or to pay in a limited time a sum of money in his character of an officer of the Court, and such trustee, person, or solicitor, after due service of such decree or order, neglects or refuses to pay such money or costs according to the exigency of such decree or order, the person prosecuting such decree or order shall, at the expiration of the time limited thereby for the performance thereof, be entitled at his option either to a Commission of Sequestration to be obtained in manner provided by the 3rd Rule of this Order, or (subject nevertheless as mentioned in Rule 9 to the remedies to which · under the 6th Rule of this Order he would have been entitled in the case of failure to do some act directed by the decree or order other than payment of money.

8. Where, by any decree or order, a solicitor is ordered to pay costs for misconduct as such solicitor, without a time being limited for such payment, and does not, upon due service of a subpæna for such costs, make such payment, the person to whom such costs are payable shall, immediately upon such default, be entitled, at his option, either to a Commission of

« AnteriorContinuar »