« EelmineJätka »
the deceased contractor was to give evidence against interest, so much as is against may be used in evihimself for six years.
Cur. vult adv. dence. This indorsement would then be evidence June 16.-Pigot, C.B. now delivered judgment. against the deceased contractor if alive; and the The question is, whether the indorsement on the note question then is, has it against the co-contractor the in this case will take the debt out of the statute of same effect as in other cases ? I am of opinion, Limitations. The plaintiff's counsel rested their giving the Act its full operation, that this indorsearguments on two grounds, First, that being an ment cannot be relied on to take the case out of the acknowledgment of payment it was evidence against statute as against the co-contractor, although it the surviving contractor; and Secondly, that being would be evidence against strangers. an entry made by a deceased person against his in PENNEFATHER, B., The Act 9 Geo. 4. cap. 14, terest, and containing an admission of the payment contains two provisions, the first respecting promises of six years interest, it was evidence of the fact of made by the party himself; with regard to that it is payment. This case was endeavoured to be distin- express that no parol acknowledgment shall be guished from Willis v. Newham. The words of the sufficient to take the case out of the statute. The Act on which that question arose were, “ That no- second applies to joint contractors, and is, “that no thing therein contained shall alter, or take away, or promise or acknowledgment by one, shall have the lessen the effect of any payment, of any principal, effect of taking the case out of the statute with resor any interest, made by any person whatsoever," pect to the other." There is an exception, that a and the Court distinctly ruled that evidence of pay- payment by the party who has made the proment could not be made by a parol acknowledgment mise, or by his joint contractor, will take the case of the fact, but there must be evidence of actual out of the statute. The question then is, what is payment. The evident import given to the word, evidence of payment? It appears to me, consideracknowledgment, so as to take a case out of the ing both the words of the Act, the decisions thereon, statute, is, that it must be an admission of a subsist- and the object of the Legislature, that the fact of ing debt, or instead, there must be evidence of the payment must be proved by evidence aliunde, that fact of payment. In this case we are called on to is, that parol, or written acknowledgments of paygive effect to a written acknowledgment of the pay- ment bythe joint contractor are not sufficient evidence ment of interest, although it is conceded that such of that fact, it must be proved by evidence different an acknowledgment of the debt by the same co-con- froin the acknowledgment, otherwise the statute is tractor would
not take the case out of the statute as wholly got rid of. If the acknowledgment of the debt against the other.
It was contended that the mis. be insufficient, it appears to me that the acknowchief relied on in Willis v. Newham did not exist ledgment of the payment is likewise so; it was the here
, and that the courts have struggled against the object of the Legislature to protect one joint condoctrine laid down in that case; and that the words tractor from the acts of his co-contractor. This view in the subsequent part of the section, as to joint con- is in accordance with all the decisions, therefore, tractors, are to receive the same construction as without considering whether an acknowledgment those in the preceding; and, that the indorsement against the parties own interest would not be in some in this case contained two distinct things, first, an cases evidence, I am of opinion this verdict must be acknowledgment of the debt, and secondly, of the set aside. payment of interest. Although the two are coupled RICHARDS, B.- The Court in expounding this in some degree, it is impossible not to adopt the statute, must work out the objects of the Legislature. construction of the Act given by the Court in Willis The language of the Act is express, that no parol v. Newham. The consequence is that this acknow- acknowledgment of the debt shall be sufficient to ledgment does not take the case out of the statute. take the case out of the statute of Limitations. In On the second ground I entertained considerable Willis v. Newham the Court held that no admission doubt; the words of the statute are, “ that one co of part payment would take the case out of the stacontractor is not to be made chargeable by reason tute. That authority is binding in the present case. only of any written acknowledgment made or signed It was contended that as the fact of payment might by any other, provided that nothing herein contained be proved by a parol statement, that this indorseshall alter, or take away, or lessen the effect of any ment being a written statement of that fact, when payment, of any principal, or interest by any per- taken in connection with, and identified by the docuson whatsoever;" from this it appears that an ac- ment itself, was written evidence of the fact of payknowledgment, in order to have the effect of taking ment. I am clearly of opinion that it is no more the case out of the statute, must be in writing, but than a parol acknowledgment by a co-contractor, that the mere fact of payment, if proved, will be and consequently will not take the case out of the sufficient. From the cases, I take this to be such an statute. It was then argued that this indorsement entry, as far as regards the party making it, as being an entry by a deceased co-contractor against would make the endorsement evidence against the his interest, is admissible as evidence of a part paywhole world. It doubtless was written for the pur- ment. If I could make up my mind that this entry pose of taking the note out of the statute, and con was admissible for that purpose, I should have some tains two statements, one against the other in favour difficulty in saying that it would not take this case of the interest of the person making it. The autho- out of the operation of the statute. I think it is not rities
, Williams v. Geaves, (8 Car. & Pay. 592,) an entry against the interest of the writer, and thereTurner v. Cross, (2 Stra. 826) Clarke v, Wilmot, fore not admissible. (1 You. & Col. V. c. 53) Pickering v. Bishop of Lefroy, B.- I cannot conceive how this case can Ely, 2 You. & Col. V. C. 258,) clearly establish, be taken out of the
statute by this promise. The that when an entry is partly for, and partly against Act treats of two classes of persons, first of indivi
duals —with them we have nothing to do; secondly, to belong to the defendant, and the sheriff then of joint contractors; the words are, “ that nothing comes here for protection, we can understand how herein contained shall alter, or take away, or lessen, he should be entitled to his costs. But if the sheriff, the effect of any payment of any principal, or inte acting bonâ fide, is under the impression that the rest made by any person whatsoever.” It is clear property belongs to the defendant, and if the exe that one joint contractor cannot be made liable to a cution creditor acts under a similar impression, debt by the written acknowledgment of his co-con- neither of them is to blame, and it is not a case for tractor; the fact of that acknowledgment being visiting any party with costs. We are of opinion
, against the interest of the co-contractor cannot make however, that the sheriff is evtitled to the costs of any difference: will then an acknowledgment of pay- his attendance here to-day—that attendance having ment ? Generally speaking, such an acknowledg- been rendered necessary by the pertinacity of the ment would be admissible as against third parties, execution creditor in not withdrawing his claim when here it is not so, because the statute has expressly he ascertained the rights of the claimants
, and in forbidden it. If the Court were to agree to the plain that respect the sheriff stands on the same footing tiffs argument, it would be arriving at a means of as the claimant, and both are entitled as against the taking this case out of the statute as against the co- execution creditor to the costs iucurred since the contractor. Verdict set aside.
5th day of October, when the rights of the claim
ants were ascertained. MICHAELMAS Term.
MacNeil v. MacNeil-Nov. 3. Scully v. Fragts. Ellis v. Figgis.—Nov. 3.
Practice-Enlarging time for making an dward Practice-Interpleader Act-Costs of Sheriff
under 3 & 4 Vic. c. 105, s. 63. The court will not allow the Sheriff the costs of his The court has jurisdiction under the 3 & 4 Vic
. c. application under the Interpleader Act, unless 105, s. 63, to enlarge the term for arbitrators there has been gross neglect on the part of making their award after the time has expired, the other parties; but where an execution cre even though the deed of submission contains a ditor waives in court his claim upon the goods clause empowering the arbitrators to extend the seized, being already apprized by affidavit, of the
term from time to time. justice of the other party's demand, the court will J. Pennefather moved, on behalf of the plaintif, to allow the Sheriff and the claimant the costs of enlarge the time for making the award under the their attendance that day against the execution following circumstances. A declaration had been creditor.
filed, in Michaelmas Term, 1846—the cause of Coates, on behalf of the Sheriff of the county of the action being to the amount of £26,000, and incity of Dublin, applied for a rule that the claimant volving complicated accounts. It was agreed to and execution creditor should interplead. The affi. refer the matter to arbitration. After the time davit stated that a Fi Fa, at the suit of the plaintiff for making the award expired, the arbitrators on Scully, had been delivered to deponent on the 17th consent, extended the time to August. It appeared
September, under which he seized a large quan- that various delays occurred, chiefly on the part of tity of furniture and other effects, lying in the the defendant, who, when that time expired, refused Custom-house stores, and pointed out to him by the again to enlarge it. Counsel relied on 3 & 4 Vic
. execution creditor as the property of the defendant. 105, s. 63. On the 14th of September, the Sheriff was served Hickey contra.—The court has no jurisdiction with a notice by the Trustees of the defendant's to enlarge the time under the section referred to. marriage settlement, claiming as the property of That section does not apply to cases where the defendant's wife, under the trusts of the settlement, power is reserved by the deed of submission to the the greater portion of the effects seized. Under arbitrators to extend the period from time to time. these circumstances, the sheriff applied for the pro- The deed of submission contains full powers to the tection of the court.
arbitrators to extend the time for naming their J. A. Curran, appeared for the trustees. award, and the act applies only to mere naked
R. Armstrong, for the execution creditor, ad. deeds, which are without any such provision. Lanmitted the title of the defendant's wife, and waived bert v. Hutchinson, (2 M. & G. 859); Doe v. Povely all claim to that portion of the effects which be-(7 Dow. P.C. 539.) longed to her.
Pennefather in reply - Under the 63rd section, Pigot, C.B.- If so, you shonld have withdrawn the plaintiff, having signed the submission, has no your claim long before this, and not have put all power to proceed, unless the court extends the parties to the expense of coming before the court time; and therefore if the court has no jurisdictiou, for what might have been as well done out of it. his claim is effectually barred. (Lefroy, B.- That
Coates for Sheriff.—We are entitled to our costs. is not so, for the restriction on the plaintiffs proScales v. Sargeson, (4 Dow.P.C. 331); Cotter v. ceeding continues only while the submission is pendBank of England, (3 M. & Scott, 180. The exe-ing.) But this very point has been expressly ruled
. cution creditor has taken it upon himself to point Carberry v. Newenham, (7 M. & W. 378); Leslie out to the sheriff the goods to be seized, and if the v. Richardson, (12 Jur. 473.) sheriff had not seized them, he would have been Pigot, C. B.—That authority enables us to disliable to an action.
pose of the case at once. In almost every deed of Pigot, C.B.-If an execution creditor points out submission there is a similar clause, empowering to the sheriff goods which he knows at the time not the arbitrators to extend the time, and if we were
to narrow the operation of this section, as contended there would be more difficulty, but it goes on to say for, it would be in effect to render the sectiou in “And that any interest which such defendant so to Operative.
be examined may have in the matters, or any of the LEFROY, B.— I confess, if this matter were res matters in question in the cause, shall not be deemed tegra, I should be disposed to agree with Judge a just exception to the testimony of such defendant, Patterson, that the court has no jurisdiction in cases but shall only be considered as affecting or tending Ike the present; but there are two later authorities to affect the credit of such defendant as a witness. The other way; and though I cannot see my way Now what interest could a defendant have in matto the construction of the act of parliament, I can ters in the cause when examined for the plaintiff? see it very clearly to follow those authorities. It cannot mean an interest to defeat the plaintiff's
case, for in that case the evidence would be receiv,
able against the party who examined him. It must COURT OF CHANCERY.
mean an interest similar to that of the plaintiff. Then,
if we admit the evidence of a defendant in a similar KELLY V. BENNISON-Oct. 25th.
interest, where can we draw the distinction ? In Evidence defendant in similar interest with
the present case, although the witness has not an inplaintiff-6 & 7 Vic. c. 85.
terest in the actual monies to come to the plaintiff, The evidence of a defendant, who might have been he has an interest on the same side as the plaintiff
made a co-plaintiff, is admissible for the plaintiff for the bill prays the payment to him, or to his wife under the provisions of the 6 & 7 Vic. c. 85. which is the same thing, of monies to be found due
on taking the account prayed in the bill; but I canThe testator in the cause devised certain lands to not read the Act in any way save as read by Sir J. his daughters Rebecca Matilda, and Anna Maria Wigram. Perhaps if a case like this had been sugo Sproule, the latter, in the testator's lifetime, being gested to the Legislature, they would have prevented about to marry the defendant, Morgan, the testa- any such arrangement of the record, to use no harshtor, by a codicil to bis will, settled her portion of er term, being made available for the purpose of the land to her separate use; after his death Re
admitting evidence which would have been excluded becca Matilda married the plaintiff Harpur. The by its natural and proper frame. But the case not bill was filed by the plaintiff Kelly as the trustee of having been provided for, and the authorities upon Mrs. Harpur, against the defendant Bennison, who this point being balanced, I will give the preference had been the agent of Mrs. Morgan and Mrs. Har- to V. C. Wigram's construction --I shall receive pur over these lands, for an account of the rents this evidence. and profits received by him in that capacity. Mrs. Harpur and her husband were plaintiffs, and Mr. and Mrs. Morgan defendants. Mrs. Harpur
IRWIN v. ROGERS.-Nov. 14. and Mrs. Morgan took as tenants in common under Evidence-Stat. 6 & 7 Vic. 85-Co-Defendant. the will. To prove the reception of the rents and A defendant claiming under a deed impeached by profits of the lands by the defendant Bennison, the the bill, may be examined in support of that deed evidence of James Morgan, the husband of Mrs. on behalf of co-defendants. Morgan, was tendered by the plaintiffs and objected This was a bill filed to set aside, or declare re
voked, a voluntary conveyance by which, amongst Monaghan, Att.-G. with Christian, C. and other provisions an annuity of £20 per annum was F. L. Smith, for the plaintiff, cited Wood v. Row- granted to the defendant' Byrne. "Byrne was excliffe, (6 Hare, 183.)
amined on behalf of Catherine Hopkins, another Green, Q. C. with Martley, Q.C. for the defen- defendant, in support of that conveyance. dant, Bennison, cited Monday v. Gayer, (1 Dé G. J. D. Fitzgerald, Q.C, with F. Fitzgerald, and Mon. 182.)
offered the depositions of the defendant Byrne. LORD CHANCELLOR. I will receive this evidence
Brewster, Q.C., with Christian, Q.C. and Drury, on the authority of Wood v. Rowcliffe decided by opposed the admission of this evidence. This is, Sir James Wigram, V. C., I think less harm will be in fact, the defendant being examined for himself. done, by receiving than by excluding it, but if the When your lordship decided Kelly v. Bennison, parties wish I will give them an opportunity of send Clark v. Wyburn, (12
Jur. 613), was not cited. ing it, if they be so advised, to obtain the opinion
LORD CHANCELLOR.—The proviso as to courts of the highest tribunal on the construction of this of Equity overrules all the prior saving. If the act Act. When I consider its language and intention, be defective, Parliament alone can remedy it. As I can put no other construction on it than that of I said in Kelly v. Bennison, I must take the words V. C. Wigram. It applies to proceedings both at as I find them. I will receive this evidence. law and in equity. if the section stopped at the word “respectively” in the first part of the proviso, the effect of that might have been to exclude the
ROLLS COURT. practice of this Court with respect to the examina
TOMLINSON v. Cox.--Nov. 3. tion of parties to the record as witnesses. But to prevent that operation it is provided “ That in courts Demurrer-Misjoinder - Parties-Departure
Amendment. of Equity any defendant to a cause pending in any such court, may be examined as a witness on behalf A bill against an executor, to carry into execution the of the plaintiff, or of any co-defendant in any such trusts of a will, and for payment of an annuity cause, saving just exceptions." If it stopped there, thereby granted, stated that an agreement had been
entered into by the defendant with one E. R., by be declared entitled to said annuity, and that the which he was to pay the said annuity, and that cer- defendant might be compelled to pay, and to secure tain premises had been assigned to secure the same. to him an annuity of £60 per annum, pursuavt to That after the death of E. R., S. M. R. procur- the directions contained in the will of the testator
, ed from defendant an assignment of said pre- John Tomlinson. To the amended bill, the defen mises. The defendant by his answer stated, that dant demurred. “ For that the relief sought by the the annuity had been assigned to him by the bill, to carry into execution the trusts of the will plantiff. The bill was then amended, and pray- of John Tomlinson, and the accounts and direced this assignment should be declared fraudulent tions therein prayed, and the further relief sought and void. Held upon demurrer that the case by the amended bill, that the indenture of the 17th made by the amended bill was no misjoinder, nor of April, 1837, and the account set forth in defenwas there any departure from the case made by dant's answer, should be declared fraudulent and void, the original bill, it being competent for a pluin- appear to relate to several and distinct matters, and tiff to put forward facts which avoid the defence. which ought not to have been joined together, and Held also, that upon the statements in the bill $. that Sarah Maria Richardson should be a party to M. R. was not a necessary party, although she the said bill, inasmuch as it is stated therein, that might be so when the evidence cume to be read at she obtained the re-assignment in bill mentioned. the hearing.
That the case made by the amended bill was a The bill stated that John Tomlinson, the testator in departure from that in the original bill, inasmuch the cause, by will bearing date the 30th May, 1835; as the defendant is there sued as executor, whereas bequeathed to the plaintiff Patrick, as much of his in the amended bill he is sued as trustee." personal property as would purchase an annuity of Martley, Q.C. and Dobbs for demurrer-In its £60; and by a codicil, appointed the Rev. William original form, the bill was simply that of an annui. Cox (the defendant) sole executor. That the tes- tant, praying for payment of his annuity; by the tator died on the 29th of June, 1835. That the amended bill a totally different case is made
, and will was duly proved by the defendant, and that relief is sought against the defendant as trustee. plaintiff was informed that the defendant bad The bill prays that the assignment to him from his entered into an agreement with one Edward cestui que trust may be set aside, this is a clear misRichardson, whereby Richardson was to pay said joinder, Salvidge v. Hyde, (5 Mad. 146); Campbell annuity to the plaintiff
, and as a security for payment v. Mackay, (1 My. & Cr. 619); Ward v. Duke of had assigned certain houses to the defendant. That Northumberland, (2 Anstr. 469). The bill states on the 13th of December, 1837, after the decease that the annuity was reconveyed by the defendant of said Edward Richardson, Sarah Maria Richard- to Sarah Maria Richardson, now she must hare son his widow obtained an assignment of said been aware that the relationship of trustee and houses, and that some small sums had been paid on cestui que trust existed between the plaintiff and a count of the annuity. The bill prayed that the defendant, and if the defendant was not able to trusts of the will of John Tomlinson might be car- pay this annuity, she could be decreed to pay it, ried into execution. That an account might be she is therefore a necessary party to the amended taken of the sums due to plaintiff. That the defen- bill. dant might admit assets, or that an account Hughes, Q.C. and H. Smythe, in support of the might be taken of the personal estate and effects of bill, cited Darcy v. Beytagh, (F. and K. 481) on the the testator, and his assets applied in a due course of point of multifariousness. administration. The defendant in his answer, stated, Master of The Rolls.—The bequest to the that by an indenture dated the 17th of April, plaintiff directed that the annuity was not to be 1837, and made between plaintiff of the one part, sold, or disposed of by him, as from imperfect and defendant of the other; the plaintiff assigned vision and understanding he was without knowledge the said annuity to the defendant, who, in consider of the world, so that on the face of this pleading, ation thereof covenanted to pay for the board and the trusts which Mr. Cox as executor undertook to lodging of the plaintiff. The answer also set forth carry into execution, and the incapacity of the an account as between plaintiff and defendant, by plaintiff with respect to want of knowledge of which a large balance appeared to be due to the the world are clearly set forth, yet with full knowlatter. The bill was then amended, stating that ledge of this fact, the executor fraudulently and the annuity given to the plaintiff was in said will by misrepresentation—such being the statement directed not to be sold or disposed of by him, as in the will, which, on the argument of this demurfrom infirmity of vision and understanding, plain- rer I am entitled to assume to be true-procures tiff was without knowledge of the world. That to himself a conveyance of this annuity. In the the desendant had applied to his own use, the amended bill there is no departure from the case money received from Sarah Maria Richardson. made by the original bill, it merely gets rid of That the plaintiff was induced to execute the assign- the defence set up by the answer, and if a fraudument to defendant by fraud, and that the same was lent instrument be set up, it is competent for the void, having been obtained by a trustee for his own plaintiff, by amendment, to put forward any facts benefit, and in violation of the testators will. The that will avoid the defence. I am entitled to look amended bill then prayed, that the said indenture to the answer, for the purpose of ascertaining if it of the 17th day of April
, 1837, and the said ac- has overruled the demarrer ; but I can only look count might be declared void as against the plain- to it for that purpose, and I must take the statetiff, and that notwithstanding said indenture of ments in the amended bill, with respect to the asassigument, and the account, that the plaintiff might signment to Sarah Maria Richardson, without
regard to those contained in the answer. The refuse the costs of this petition ; when a suit is argument on the part of the defendant is, that the pending, if another creditor should file a bill, I trusts of the will have been fulfilled by the pur- could not stay proceedings until a decree is obtainchase of the annuity by him, and that if the plain- ed, it would be very desirable that some alteration tiff accepted of this arrangement in satisfaction of should be made in the practice. In the incumbered his legacy, it deprives him of his right to it. I do estates act, there is a provision, I believe, that not consider that the existence of this second in- pending any proceedings under it no suit can be strument amounts to a satisfaction of the plaintiffs instituted. I must, however, take the case as I find claim under the first, there were some dealings it. The only order I can make is to extend the between him, Richardson, and the defendant, when receiver already appointed in the suit to the petithe annuity was purchased, but this does not seem tion matter. to have been with the assent of the plaintiff, and I cannot conceive how the trusts of the will can be READ V. DUBLIN, DUNDRUM, AND RATHFARHAM considered as fulfilled by this transaction to which
-Nov. 7. the plaintiff was no party. I do not see, therefore, Practice-Evasive answer—Side bar rule to elect. any facts on the face of this will, to shew that these trusts have been carried into execution, and if not, If a plaintiff proceeds at law and in equity, there is no ground for the objection of misjoinder,
a defendant cannot, immediately after a short as to the objection for want of parties, putting out
or evasive answer, enter a side bar rule, calling of consideration any passage read to me from the on the plaintiff to elect, such a rule is entered at answer. I find no statement in the bill, to shew the peril of the defendant, and if upon exception that Mrs. Richardson is a necessary party, the
the answer is found not to be full, the rule will course taken by the defendant is very incorrect,
not be effectual. for I am forced to decide this demurrer, knowing This was a motion shew cause against a side bar there are other facts in the case, but which being order to elect entered by the defendant. The bill in contained in the answer are not properly before this case was filed, to compel the specific performe, besides the prayer of the bill is simply to mance of an agreement, for the sale of certain precarry into execution the trusts of the will, and no mises. On the 7th of April, 1848, the defendants relief is prayed against her. I do not now offer filed their answer, to which the plaintiff excepted any opinion, as to whether, when the answer is for insufficiency, on the 13th of June a further read, Mrs. Richardson may not be a necessary answer was filed, and on the same day a side bar party, but upon the vague statements in the bill 1 rule was entered by the defendant, that the do not think she is.--Demurrer overruled. plaintiff should elect whether he would proceed
at law, or in equity. On the 16th of June, notice TOWNSHEND V. BARRY.-Nov. 6.
of motion was served by the plaintiff, to set aside
this order for irregularity, and on the same day, Practice-Appointment of a receiver.
notice of exception to the second answer was Pending a creditors suit ; a petition was present- served. This exception was allowed, and a fur
ed by, a judgment creditor, a defendant in ther answer put in, before the notice of the 16th the suit, for å receiner over the lands in the of June came on to be moved ; on that motion his pleadings mentioned. Held, that the pendency Honor directed that the plaintiff should be at of the suit was not suficient cause against the liberty to serve a notice of motion, and shew cause appointment of the receiver, and that the peti- against the side bar order ; instead of serving this tioner was entitled to his costs.
notice, the plaintiff, by mistake,—served notice of Sherlock in this case shewed cause against a con an application for a reference to the master, to ditional order for the appointment of a receiver. enquire whether the case was a proper one to put The petition was presented on the 12th of June the plaintiff to his election, last, on the 7th of March previous, a bill had been Brewster, Q.C. with H. West. The practice in filed for a receiver over the same lands. To this England is to enter a side bar rule. That the plainsuit the defendant was a party, and had been tiff shall elect within eight days after serving notice, served with notice of the proceedings. It is not (1 Dan. Ch. Pr.791). The practice in this country, stated in this petition that the cause was pending, as settled by Hollyer v. Hedges, (9 I. E. R. 37), is nor is there any allegation that it was not properly to enter a rule forthwith after answer, that the conducted; A consent was entered into, in the suit, plaintiff shall elect in eight days, this rule is to that if the answers were not filed before the 20th be entered at the peril of the defendant, and if the of October, the bill should be taken as confessed, answer should be insufficient, the rule is a nuland a receiver appointed, and accordingly on the 4th lity, for until full answer, it is impossible for the of November, the answers not having been filed, plaintiff to know whether he will elect. In the the bill was taken pro confesso and a receiver ap- present case, if no further answer was put in, the pointed over these lands. The petitioner should case would be as if there were none, how then can have informed the court, that the suit had been it be said, that because a party afterwards files an instituted.
answer, the side bar rule is to be continued as if C. Kelly, contra.—The answers were not filed the answer was full in the first instance. on the 19th June, wben the petition was granted, Butt, Q.C. and T. Darley, contra.-A sufficient and we had no means of compelling the plaintiff to answer is now filed to support this side bar order, proceed in the cause.
according to the case of Hollyer v. Hedges, there MASTER OF THE Rolls. I do not think I can ) is no condition annexed to the entry of the rule.