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COURT OF CHANCERY. HUTCHINS v. O'SULLIVAN.-February 3rd, May 5th, 26th, and July 22nd. Statute of Limitations—Liberty to prove. A judgment creditor revived against the heir, but not against the executor of the conusor. After an allocation order in a suit for the administration of the conusor's estate, the judgment creditor obtained leave to come in and prove, by a motion, on notice to all parties. The fund in court was produced from the sale of personalty of the testator. Held that the Master was preduded from going into the question whether the judgment was barred as against the executor, and that the proper time for raising the question of the statute is on the application for leave to come in and prove.

The bill in this cause had been filed for an account of the real and personal estate of Morty O'Sullivan, the elder, deceased. A decree to account was obtained in 1834. The master made his report. and a final decree for a sale was made the 26th Jan., 1836. Under this decree, certain chattels real were sold, from which the fund in court was produced. By an order of the 4th day of December, 1845, it was referred to the Master to allocate this fund. In Michaelmas term 1810, Daniel Callaghan, the elder, obtained two judgments each for the sum of £533 8s. 4d., Irish, against Morty O'Sullivan, the elder. On the 15th of October, 1844, two writs of sci. fa. were issued on these judgments by Daniel Callaghan, the executor of Daniel Callaghan, against John O'Sullivan, the heir at law, and against the terre tenants of Morty O'Sullivan, the elder, on which after defence taken, revivors were obtained, but no sci. fa. was issued, nor revivor obtained against Morty O'. Sullivan's executor. Under O'Sullivan's will, John O'Sullivan was tenant for life of Morty O'Sullivan's personal property. By a motion on notice to all parties in the cause, including the executor of Morty O'Sullivan, the elder, Daniel Callaghan obtained an order of the 5th March, 1846, "That he be at liberty (at his own expense) to go before the Master in the cause, and file a charge on foot of the two judgments, and at his own expense, obtain a report as to whether there be any, and what sum due on foot of the said judgments; and if the Master shall find that there is any sum due on foot of the judgments, then, that the Master, in proceeding under the said order of the 4th December, 1845, do have regard thereto, and report the priority of such demands when proved, and include the same in the alloca tion report, to be made under the said order."

Daniel Callaghan duly filed his charge under this order, to which John O'Sullivan filed his discharge, insisting that the judgments were barred against the personal representative, by the statute of limitations; and that, therefore, they could not be proved against the fund in court, which was entirely the produce of personalty.

The Master, by his report under the order of 1846, filed the 19th of June, 1847, found that there was due on foot of the said judgments, for principal and interest, the sum of £984 15s. 5d., sterling, being the full amount of the penalty. This report

was subsequently, by a motion at the Rolls, varied by reducing the amount reported due; a portion of the interest being held to be barred by the statute.

By the allocation report of June, 1848, the Master, amongst other things found, "Having regard to the said order of the 5th day of March, 1846, I find that there is due to the said Daniel Callaghan, on foot of the said two judgments, in the said last mentioned order referred to, for principal, interest, and costs, the sum of £835 11s. 04d., sterling, but that the said sum so due to the said Daniel Callaghan, is not payable out of the funds now to be allocated, inasmuch as the said funds are the produce of the personal estate of Morty O'Sullivan, and the said judgment was never revived against the personal representative of the said Morty O'Sullivan." Daniel Callaghan moved to vary this report, contending that under the order of 1846, the Master was bound to find the sum reported due a charge upon the fund. Upon Daniel Callaghan's objection the Master of the Rolls, on the 23rd of December, 1848, made the following order :-" It appearing to the court upon the said Daniel Callaghan's motion that by the report of the 19th of June, 1847, the Master thereby reported that there was due on foot of the judgments vested in the said D. Callaghan the sum of £984 15s. 5d., and for costs, the farther sum in the said report mentioned; and it appearing on the face of the said report that a summons was served on Ellen O'Sullivan, the personal representative of Morty O'Sullivan, the elder, the conusor of the said judgments who did not appear or contest the rights of the said D. Callaghan; and it further appearing that by the discharge of J. O'Sullivan, the heir at law of the said M. O'Sullivan, it was insisted that the said judgments were barred as against the personal estate of the said M. O'Sullivan by the statute of limitations; and it appearing further that two objections were taken to the said report of the 19th of June, 1847, one of which was allowed, but which in no way affected the said question, as to whether the said judgments were barred by the statute of limitations as against the personal estate of Morty O'Sullivan, the elder, deceased, the conusor of the said judgments. And whereas the Master, by his report of the 30th of June, 1848, has found that there was due to the said Daniel Callaghan on foot of the said two judgments the sum of £835 11s. 04d., but that the said sum was not payable out of the funds then to be allocated by the said Master, inasmuch as the said funds are all the produce of the personal estate of Morty O'Sullivan, and the said judgment was never revived against his personal representative. And whereas counsel for the said Daniel Callaghan in support of the objections now before the court to that finding insists that the Master is concluded by his former report of the 19th of June, 1817, made after a summons was served on the personal representative of the said M. O'Sullivan, the elder, and that although no evidence was laid before the Master under the order of reference upon which the report of the 19th of June, 1847, was made, or under the order upon which the present report of the 30th day of June, 1848, was made to take the case out of the statute of limitations; as to the said personal estate of the said Morty O'Sullivan, the elder, the Master could

not consider such question being so concluded by his former report of the 19th of June, 1847; and it further appearing to the court, after communication with the said Master, that he did not intend to decide by the said last-mentioned report any question that the personal estate was liable to the said two judgments, no evidence having been laid before him to take the case out of the statute of limitations as to the above personal estate. It is ordered by the Right Honourable the Master of the Rolls that the Master in this cause be and he is hereby at liberty to re-consider his report of the 19th of June, 1847, and to amend the same, and to find, if he shall so think fit, as he has found by his last report of the 30th day of June, 1848, that the said two judgments are barred by the statute of limitations as to the said personal estate, And it is further ordered that the said Daniel Callaghan be and he is hereby at liberty, if he shall so think fit, to go into evidence, or prove any matter which took place within the last twenty years, prior to the said Daniel Callaghan filing his charge under the order of reference of the 5th of March, 1846, or any other matter which the said Daniel Callaghan shall be advised, to take the case out of the statute of limitations as to the said personal estate, such evidence to be concluded within such time as the said Master shall direct. And it is further ordered that the said Daniel Callaghan be and he is hereby at liberty to take such objection or objections to the said report of the 19th of June, 1847, after the Master shall have amended the same as he shall be advised." Daniel Callaghan now appealed from the Master of the Rolls' order, and moved to vary the Masters' allocation report.

ap.

Michaelmas Term, 1810, but he did not come in
under the decree, and was precluded from the bene-
fit of the proceedings in the cause. He then
plied to the court in the ordinary way for liberty
to go in and prove his demand on foot of his judg
ment.
As I have said, his judgment was one of
the year 1810, but it had been revived before the
commencement of the cause. In Michaelmas, 1844,
it was again revived against the heir, and the ten-
ants of Mortimer O'Sullivan. A plea of the statute
of limitations was put in, and a verdict was ob
tained by the plaintiff, on the ground of payments
made within twenty years. On that the application
was made to the court, as I have mentioned, on
notice to all parties in the cause. The heir-at-law
was then tenant for life of the chattel interest, and
the fund was wholly produced by the sale of it.
Thus, in truth, the application was made against
the chattel interest, on notice to the personal repre-
sentative, and the person having the beneficial
interest in the lands. That came before the court,
and on the 5th March, 1846, an order was made
in these words. [His Lordship read the order.] On
that the parties went into the office, where the
usual proceedings took place; but it being the
practice, on an order of this kind, to make a sepa
rate report of the sum due, the Master accordingly
made his report of the amount due on foot of O'Sul-
livan's judgments. [His Lordship here read the
report of the 19th of June, 1847.] So far the
Master satisfied the order in finding the sum due.
It appears that about that time John O'Sullivan
died, and Mortimer, who succeeded to his claims,
was an infant. He took objections to the report as
to the amount of the sum found due. One was,

Mr. Christian, Q. C., for O'Callaghan.-Bennett v. Bernard, (10 I. E. R. 584); O'Kelly v. that under the circumstances, only six years inBodkin, (2 I. E. R. 361; 3 I. E. R. 390); Bar-terest should have been allowed; thus be admitted rington v. Evans, (1 Y. & C. 434.)

Mr. T. Fitzgerald contra.-Putman v. Bates, (3 Russ. 188,)

Mr. Rogers for J. O'Sullivan.- Wilson v. Lennard, (3 Bur. 375); Busby v. Seymour, (1 J. & Lat. 527); Boyd v. Bolton, (8 I. E. R. 113.)

Mr. Deasy in reply.-Harrison v. Duignan (2 Dru. & War. 295); Byrne v. Duignan, (3 J. & Lat. 116.)

LORD CHANCELLOR.-This case came before me on appeal from an order at the Rolls. Many objections were disposed of, but those which remain to be considered are those of Daniel Callaghan, who claims to be a judgment creditor of a person named Morty O'Sullivan. The bill was filed for relief on a specialty debt of O'Sullivan. The first decree is of the 7th May, 1834, which is the ordinary decree to account. Under that decree a report was made, on which the final decree was founded. The report was of the 25th of January, 1836, by which it appeared that the property consisted of a chattel real, and of some freehold property, and that the only creditor who had come in and proved was the plaintiff himself. Under that decree this chattel real was sold, and the proceeds being paid into court, an order was made to allocate the funds produced by the sale of the chattel. In that state of the case Callaghan, applied to the court by notice of the 28th February, 1846. He was a judgment creditor of M. O'Sullivan, by two judgments of

that the principal sum was due. That came on to be heard, and was allowed, and in consequence the matter stood thus on the order and Master's report:-By the order, the Master was directed to find whether any, and what sum, was due to Callaghan; and by the report, as varied, he found that £839 11s. 04d. was due. It seems that the Master adopted the opinion, that notwithstanding the first order, and the allocation order, he was at liberty to enter into the question, whether, as the revivor was not against the personal representative, he was to give him any of this fund produced from the personalty of M. O'Sullivan, and accordingly refused to allocate any portion of it to Callaghan. As I infer, from what has been stated, Callaghan insisted at the Rolls that the order of 1845, and the report of June, 1847, were conclusive, and that nothing more was to be done than to allocate the money. It appears that the Master of the Rolls took that view, and thought that while the alloca tion order, and the report of the sum stood, the Master's report could not be varied from them. The order made at the Rolls on Callaghan's mo tion, was as follows. [His Lordship here read the order appealed from.] There is much difficulty in that course. It is unusual for the court on motion to send back a report which has been excepted to and confirmed, in order to raise a question of the statute of limitations. In that state it comes before the court. It struck me that there

was much question whether the order allowing Callaghan to prove did not stand in the way of hearing any such objection. At the time when that order was made, all parties were before the court. There could be no mistake as to the fund from which it was intended to raise the amount, and that it was the fund of personalty which alone was in court to be distributed. It was open to the personal representative to have contested the debt then, and it would have been a matter of course for the court to have disposed of the question whether this was a debt, when that objection could be taken, if that question had been then raised by her. At the time that order was made, Martin v. M'Causland had been decided, and there was not then the strong opinion against that case which has since arisen; indeed that case has never been expressly overruled, and though much doubt has been thrown on it, it may happen that on debate in a court of law on that question, it may be decided that a personal representative is bound by a revivor against the heir at law. However that may be, the words of the statute are very general, and this proceeding on the judgment was just as much a proceeding as if there had been no suit pending. I apprehend, therefore, that this question should then have been raised, and that it will be found, that the executrix, having allowed it to go to the office she will be bound. In Berrington v. Evans (1 Y.& C. Ex. C. 434), the Chief Baron says, "The words of the statute are, that after a certain day no action, suit, or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, either at law, or in Equity, but within twenty years after the right shall have accrued.' Now I am not prepared to say whether-if I could be satisfied that the bill was filed with Kemp's consent, and he meditated like Berrington to prosecute his claim under that bill-whether, under those circumstances, I should arrive at a different conclusion. Even then, I apprehend he would have to give a satisfactory reason for remaining so long without calling in the aid of this court in his own person. But supposing that he never knew of the filing of the bill, or of the progress of the suit, and that twenty-five years after the right had accrued, upon a new discovery of the suit having been instituted, and of funds being in court, he petitions to be allowed to go before the Master and to make his claim, can I say that his petition is not a proceeding in Equity within the statute." Lower down he says, "Considering, therefore, that this is a proceeding in Equity to recover money upon a judgment, upon which twenty years have run, and that it comes within none of the exceptions of the statute, I am of opinion that the claim is barred." Thus he treats this as proceeding within the act. In Lord St. John v. Boughton, (9 Sim. 219), the Vice-Chancellor says, "I am of opinion, therefore, that the right of the petitioners to the sums due on these bonds has been acknowledged by a writing signed by the agent of the person by whom the same are payable, and that the petitioners ought to be at liberty to go in before the Master and prove their debt." That was also a case decided on petition, (equivalent to a motion here,) and treating it as a proceeding. In O'Kelly v. Bod.

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kin, (2 I. E. R. 361,) the question was not directly before the court; the question of interest had been saved by the report, and when Berrington v. Evans was cited, and it was stated that the court there did not determine what would be the effect of the creditor proving his demand under the decree, Baron Pennefather says, They did so in fact; the question there was, whether the creditor was barred or not. The only thing relied on to take the case out of the operation of the statute was the pendency of the suit; but the court determined, that inasmuch as the creditor stated that he was not aware of the institution of the suit until after the final decree was pronounced, he could not in any wise consider that suit as his own, and being of that opinion, the court properly refused to go before the officer and prove his demand." Thus, as that decree was a difficulty in the way of the Master, in the present case there is the further difficulty of disturbing the intermediate report. have not found any direct authority to say whether or not the statute of limitations can be relied on in the office under such circumstances. My present impression is, that this matter is not open on such an inquiry, and that as long as the original order to come in and prove exists, such a defence is not open to the party. If the parties wish to discuss the case again on the effect of the original order, they are at liberty to do so; but my present impression is, that it having been made in the presence of all parties, it is as it was said in Berrington v. Evans, &c., a "proceeding," and that it is no more open to parties to raise that question in the office, than it would be after a decree to account on a bill filed regularly, to set up the statute of limitations in the office, as a bar to the plaintiff's debt.

According to the permission of the Lord Chancellor, a motion was brought in on the 26th May 1849, to insist that the statute of limitations was open to the debts in the office, notwithstanding the order of the 5th March 1846, or otherwise to vary that order by declaring that it was to be without prejudice to any question as to the funds properly applicable to the payment of the sum, if any, to be found due on the foot of the said judgments.

Mr. Rogers and Mr. Lawson for the motion. Mr. Christian, Q. C., and Mr. Deusy, Q. C., contra, for Callaghan.

July 22.-LORD CHANCELLOR.—I do not think the order of March 1846 can be varied. On the other point, I am of the same opinion I before intimated. It is not necessary for me to go into the detail of the cases; on reconsidering them, I still think that the "proceeding" within the statute is taken by the application to the court to become a party to the suit. It appears from O'Kelly v. Bodkin, that the court always, on the first application, decides whether the party is at liberty to prove, notwithstanding the statute of limitations; and that the same rule must apply to orders of this kind, which is applied to the statute of limitations, in all such cases, that it must be raised as soon as possible. In suits, that rule has been long established; so far back even as the time of Lord Hardwick, in Prince v. Heylin, (1 Atk. 493). And on the same principle, it was held in a very

late case, Roch v. Callin, (6 Har. 531). "That, new evidence, and the necessity of consulting counnotwithstanding the principal question in the suit sel, plaintiff had been unable to apply sooner to the be the right of the plaintiffs to two annuities, one court. The bill had been amended once since of which has been paid; the defendant, on a de- answer, by putting in issue a letter to which no cree being made for the arrears of the unpaid answer had been required. The plaintiff's affidavit annuity, cannot set up the statute of limitations as also stated, that some of the matters sought to be limiting the period of the account, if the benefit introduced by amendment, only came to the know. of the statute be not claimed on the pleadings. ledge of the plaintiff or his solicitor, subsequently The Vice-Chancellor says that it would be obvi-to the time of serving notice of the witnesses names. ously improper to permit a defendant, at the hear- This was an application on the part of the plaining of a cause, to insist upon the statute of limitatiff, that the defendant might be restrained from tions, if he has not set up that defence upon the further proceeding on the rule of the 30th of April, pleadings. If the statute be pleaded, the plaintiff to pass publication in the cause, and that the plainmay be able to show cause, taking the case out of tiff be at liberty to withdraw the replication without the statute, which he cannot be expected to do, if prejudice to the commission issued for the examine the objection be not taken. Is the court in such a tion of witnesses, and to amend the bill by putting case to refer it to the Master, to inquire whether the in issue a deed of mortgage of the 1st of March, statute ought to be allowed as a bar to the claim, 1834, a letter of the 8th of April, 1843, a statebefore he decree is made? ment of one of the defendants respecting the manner in which C. O'Keefe, jun. disposed of his property, a diary alleged by the defendant to have been kept by the said C. O'Keefe, and a proposi tion made by him respecting the taking of a farm.

The Master of the Rolls order was varied, and the report sent back on Callaghan's objections. O'Sullivan's motion was refused, but without

costs.

Ch. Motion Book 4, pp. 244, 254, 290.

ROLLS COURT.
O'KEEFE V. LANIGAN.-May 11, 12.
Practice-Amendment after issue joined and wit-
nesses examined, refused.

After issue joined and witnesses examined by the
defendant, the plaintiff will not be permitted to
amend the bill by introducing new matter, which
will alter the frame of the suit, and to which an
answer is required.

Mr. Greene, Q.C., and Mr. Lonergan for the plaintiff. In Mitford E. Pl. 383, last Ed., it is laid down that a plaintiff may obtain leave to amend his bill after replication, and leave will be granted to the plaintiff to withdraw the replication, and amend the bill. In O'Grady v. Barry, (1 1.E.R. 11,) an amendment was allowed six weeks after the last answer. An order to amend may be obtained at any time before publication. 1 Danl. C. P. 396. In the case of Smith v. Gould, (7 I. E. R. 271) a second amendment after answer was allowed, although the last answer was filed twelve months pre

vious.

Mr. W. Smith and Mr. Meagher contra.—In this case it does not appear that any reasonable diligence has been used by the plaintiff, and it should appear by the affidavit in support of the motion, that all the matters sought to be introduced by these amendments

satisfy the court that this motion could not have been sooner brought forward. [Counsel also referred to Calvert v. Ganly, (1 Ph. 518); Davis v. Davis,) 10 1. E. R.;) Roach v. Johnstone, (2 Hare, 638; 1 Ph. 78.)]

On the 2nd of March a motion had been made in this cause, for the production of a mortgage for the purpose of inspecting an alleged indorsement. A report of this application will be found ante p. 210, where the nature of the suit is fully stated. That motion was refused without prejudice to the plain-became lately known to the plaintiff, and he should tiff amending the bill, by putting in issue this alleged endorsement, and without prejudice to the plaintiff applying to the court when the defendant should have put in an answer to the bill when amended. A commission for the examination of witnesses was taken out on behalf of the plaintiff, and on the 2nd of April notice was served of speed ing same on the 24th; on the 11th notice was served of witnesses names to be examined on the part of the plaintiff; on the 20th of April, upon the discovery of new evidence, notice was served by the plaintiff, that he would not proceed with the exaxamination, and on the 24th of April, notice was served by the defendant, with the names of three witnesses to be examined before one of the examiners in chief in Dublin, and cross interrogatories were subsequently lodged by the plaintiff. On the 30th of April, the rule for publication was entered. From the affidavit of the plaintiff it appeared that notice had been served of the names of five witnesses to be examined on the part of the defendant, and the commission had not been executed; also that neither the plaintiff or his solicitor had been informed of the contents of any of the depositions taken in the cause, and that from the discovery of

May 12th.-MASTER OF THE ROLLS-In this case, the replication was filed in February, and on the 2nd of April. Notice was served by the plaintiff, of speeding a commission to examine witnesses, on the 24th. A day or two previous to this, a notice was served by the plaintiff, stating his intention of applying for liberty to amend the bill. The defendant was permitted to examine witnesses, and cross-interrogatories were lodged by the plaintiff, although it appears that he did not examine. Early in April, three witnesses were examined on the part of the defendant, and no application has been made to suppress these depositions for irregularity; and at this stage of the proceedings, after three witnesses on the part of the defendant have been examined, I am called on to allow an amendment, not by adding parties or amending the prayer of the bill, but amendments of a most extensive character, and calculated to alter the entire frame of the suit. There may be cases in

which this Court will exercise its jurisdiction at the hearing of the cause, and, under peculiar circumstances, will allow it to stand over, for the

of amendment; and it may be contended, purpose that if an amendment may be made when the cause is at hearing, by adding parties, and possibly by altering the frame of the bill, an amendment may also be made at this stage of the proceedings. It is not necessary for me to offer my opinion on that point, but what I am called on to say is, whether I will allow amendments which will alter the entire frame of the suit, and to which an answer is required, and in respect of which a discovery is Sought. What will be the state of the record, if the bill becomes demurrable by this amendment? for a bill may become demurrable by amendment. The ground of the demurrer may for the first time arise out of the new matter introduced, and may be taken advantage of by plea or demurrer. In this case the replication has been filed, and three witnesses examined, by the defendant. This replica. tion must now be withdrawn, and what is to become of the evidence of the three witnesses who have been examined? It will be necessary to have a new replication, new examination, and there may be one case made by the original bill, and another by the amended bill. It will be necessary to have a new record; no case has been cited to me, in which a similar application has been granted. In the case of Milligan v. Mitchell, (1 M. & Cr. 442,) liberty was given to amend the bill, by shewing the plaintiff's were unable to bring all proper parties before the Court, and Lord Cottenham said, "Under that order, made at the hearing of a cause in which two persons were plaintiffs, and in which depositions had been taken, the bill is amended by adding certain other plaintiffs, and inserting allegations and charges of no inconsiderable length, re lating to matters connected with those new plaintiffs. The cause is again brought to a hearing, with the additional plaintiffs on the record, such plaintiff's having adduced no evidence, and making no case at the hearing; and the question is, whether the bill is to be dismissed generally, or whether those plaintiffs shall be at liberty to attach themselves to the former cause, and to avail themselves of the evidence in that cause, under the pretext afforded by an order authorizing the original plaintiffs to amend the bill by adding parties or shewing why all proper parties could not be brought before the Court. The course which has been taken was perfectly unjustifiable; no authority has been cited in support of it, and on principle it cannot be supported. The plaintiffs having taken the original record froin the Court, and introduced a totally new record, how could these witnesses, supposing them to have sworn falsely, and their depositions to be read, be indicted for perjury? They are depositions in a suit of which the record no longer exists." Also the observations of Vice-Chancellor Sir J. Leech, in the case of Wright v. Howard, (6 Mad. 105,) are applicable to this case, and the affidavit should shew that the plaintiff could not with all due diligence bring forward this application at an earlier period. "Refuse this motion, with costs, to be paid by the plaintiff to the defendant when taxed," &c.

Lib. 285, fo. 143.

OWEN JAMES Kelly, and Sarah his Wife, and others, Petitioners.—May 12. Practice-Solicitor refusing to attend taxation of

costs.

This court will make an order compelling a solicitor to attend and tax his costs, and if the taxing. master has been unable to proceed, on account of his non-attendance, he will have to pay the costs of the motion.

Mr. Darley moved, on behalf of Patrick Dolan, and Marianne Dolan, his wife, that Alexander J. Humphrey might forthwith tax and mark his costs, acting as solicitor in the several matters, in the petition mentioned, and lodged by him in the Master's office, on the 25th day of July, 1845, and that the amount due on foot thereof might be ascertainedthe petitioners offering to pay the balance which might be found due upon such taxation. In consequence of Mr. Humphrey's refusal to attend, the Master has been unable to tax the costs.

June 2.--MASTER OF THE ROLLS.-In this case I felt some difficulty, and referred it to the taxing master, who stated that such a case had never come before him, as a solicitor refusing to attend to tax his costs. I was not sure whether, under the circumstances, the Master would not be justified in striking out all the costs; however, upon consulting Master Henn, he informed me that the practice has been for the court to make an order to compel the solicitor to attend. I will make such an order, and if he disobeys, it will be at his peril. "Let the said Alexander J. Humphrey proceed

within ten days, or such further time as the taxing master shall allow for that purpose, to have the costs claimed by him, and in the petition mentioned, taxed, &c., and in the event of the said Alexander J. Humphrey not having his costs taxed within said period, or such further period as the taxing master shall allow for that purpose, let the petitioners be at liberty to make such application against the said A. J. Humphrey, as they may be advised, although the last day for serving notice on petitions may have elapsed; and it is further ordered, that the said A. J. Humphrey do furnish, on oath, to the solicitor for the petitioners, a list of all credits to which the petitioners are entitled against said costs-the petitioners undertaking to pay the amount of any which shall appear to be due on such taxation, after all just credits; and it is further ordered that the said taxing master, on taxing and certifying said costs, do take an account of all such credits, and strike a balance, and it appearing from the certificate of Master O'Dwyer, that he was unable to tax or certify the costs of Mr. A. J. Humphrey, under the General Order of the court, in cousequence of his continued non-attendance before the said taxing master, let the said Mr. A. J. Humphrey pay to the petitioners the costs of the said petition, and of this application, and refer it to the taxing master to tax same."

R. P. H. B. Lib. 30, fo. 2.

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