1854. In re MUTUAL c. 56, which provides, "that, when and so often as any person seised or possessed of any lands, tenements, or hereditaments, or other property, or any estate or interest therein, as a trustee of THE ECLIPSE any such society shall refuse to convey or otherwise assure" the same to the person duly nominated as trustee of the society in their stead," the Courts might appoint some person to convey to such trustee. The proper remedy was by petition; and the society, though in course of being dissolved, must be considered to exist, for the purpose of being wound up, until that was completely done. The VICE-CHANCELLOR SIR W. PAGE WOOD seemed, at first, inclined to take this view; but, having considered the sections of the Act, said, that he was afraid he could not help the petitioners, and must, therefore, dismiss the petition, but without costs. BENEFIT ASSOCIATION. HAYWARD V. HAYWARD. THIS was a motion that the order made in these causes on the 23rd day of February last,-whereby it was ordered that the Defendant Robert Alexander Price should attend the Chambers of the Judge to whose Court these causes were attached, at No. 11, New-square, Lincoln's Inn, in the county of Middlesex, on the 6th day of March, 1854, at half-past twelve o'clock in the afternoon, to be examined on certain interrogatories therein mentioned, and in default thereof, or in case the said Defendant should not then perfectly answer the said interrogatories, it never makes any order of his own authority, but all the orders made in Chambers are orders of the Judge, and are, in fact, made by him in the presence of the parties, unless they agree for their own convenience to take the order without actually going before the Judge in Chambers, or unless the order is such an order of course as would be made in Court without communication with the Judge, upon simply handing in a brief to the Registrar; such last-mentioned order, when made in Chambers, being made upon the communication of the Chief Clerk to the Registrar without the actual intervention of the Judge. The Judge in Chambers is always accessible to any of the parties who are engaged in proceedings there; and any party suggesting that he wishes to see the Judge personally can at once do so. If a person under examination in Chambers refuse to give a sufficient answer, the proper course is to apply to the Judge to examine him personally, which the Judge can do; and then, if he refuse to answer, he may be at once committed." The practice of waiting until the examinant has put in four insufficient answers, and then applying for an order that he may stand committed, if feasible at all, would involve very considerable delay, as the insufficiency of the several examinations must be certified by the Chief Clerk, and his certificates do not become final until twelve days after he has signed them under the Orders 47 to 52 of the 16th October, 1850. An order for committal will not be made after a third insufficient examination. 1854. HAYWARD v. HAYWARD, v. PRICE. was ordered, that the said Defendant Robert Alexander Price should stand committed to the Queen's Prison until he should have perfectly answered the said interrogatories; and whereby it was ordered, that it should be referred to the proper Taxing Master of this Court to tax the Plaintiff his costs in respect of the three insufficient answers and examinations put in by the said Defendant Robert Alexander Price; and whereby it was ordered, that the said Defendant Robert Alexander Price should pay to the Plaintiff William Webb Hayward such costs when taxed-might be discharged or varied. A decree had been made in these suits, dated the 23rd of March, 1853, directing an account of what was due to two of the Defendants for principal and interest, in respect of a mortgage to them of certain hereditaments; and, in the prosecution of this decree in Chambers, it became necessary, and leave was given, to examine the Defendant Price, who was one of the mortgagees, upon interrogatories. This was done, but he put in three insufficient answers to the interrogatories. The first answer was declared to be insufficient by the Vice-Chancellor himself, after hearing counsel upon it. The Chief Clerk decided upon the insufficiency of the second and third answers; and, on the last occasion, the further hearing was adjourned until the 23rd of February last; and upon that day, no further accounts being given, the order now complained of was made. There had not formal certificate of the insufficiency of either of the been any examinations. Mr. Rolt, Q. C., and Mr. Cole, for the motion. It is most improper, and even unconstitutional, that this order should be in this conditional form, leaving it to the discretion of the Chief Clerk, and his judgment upon the sufficiency of the examination, to determine whether or not this Defendant should be imprisoned: Abley v. Dale (14 Jur. 1069). But it was improper to make the order at all in this case; for it has been decided, that it cannot be made after three insufficient examinations only: Allfrey v. Allfrey (12 Beav. 690), Weston v. Jay (1 Mad. 528). Moreover, there is no certificate or other record shewing the fact even of these three insufficient examinations, all depends on the recollection of the Chief Clerk. Mr. W. M. James, Q. C., and Mr. Heberden, contrà.-Seton upon Decrees, 423, referring to Harrison, 476, states, that, "on three insufficient examinations, a motion may be made that the party may stand committed." [The Registrar informed the Court that that was not the practice.] This was an order of course, and was, in fact, the order of the Court; and it is every day's practice to make orders of course in this conditional form, which are never referred to the Judge in person. [VICE-CHANCELLOR. -Under the old practice a certificate of default was made by the Master, to which exceptions could be taken to the Court, and then by appeal to a superior Court. Here, unless I proceed formally upon certificate, there could be no appeal from my decision to a superior Court.] The reply was not called for. VICE-CHANCELLOR SIR W. PAGE WOOD: I think that this is a point of considerable importance with reference to the regularity of proceedings in Chambers. This order is upon the face of it irregular; but that is explained by the fact, that an application was made for an order, founded upon a statement of the practice as laid down in Seton on Decrees, 423, quoting from Harrison, 476, that a motion may be made, on a party putting in a third insufficient examination, that he stand committed. That is stated in Seton on Decrees, may p. 423, without any observation. Now, it is extremely important that it should be understood, with reference to the practice in Chambers, that the Chief Clerk never makes any order which can be called his own order in any sense. All the orders made in Chambers are the orders of the Judge; but they are sometimes made in this way: the Chief Clerk appoints a day for the solicitors of the parties to go before the Judge. They may then all agree that they do not wish to have that formal attendance; but that they will take the order without it. That is for their own convenience and not for that of the Judge, who, of course, is always accessible. But, if the order is then made without their going before the Judge, still it is the order of the Judge and not of the Chief Clerk. If any of the parties wish to go before the Judge, it is the invariable practice, I believe, in all the Chambers, to give them an opportunity of doing so directly. However, there are certain orders of the Court which are of course, and are made on merely handing in a brief to the Registrar. If those are made in Chambers, the Chief Clerk is the medium of communication between Chambers and the Registrar's office. 1854. HAYWARD v. HAYWARD. HAYWARD v. PRICE. 1854. HAYWARD บ. HAYWARD. HAYWARD v. PRICE. If the Registrar were sitting at Chambers, he would take a note of them directly; but it is a proceeding at Chambers. And, as orders of course are not matters which ought to be submitted to the Judge personally, and do not so come before him in Court, but are made without communication with him, the Chief Clerk does not communicate to the Judge such as are made upon proceedings in Chambers. and Now, when the practice is examined into, it appears that the dictum which I have mentioned, as having been adopted in Seton on Decrees, has misled the parties in this case. It appears that the Registrars know of no such practice; and Allfrey v. Allfrey (12 Beav. 620), has decided, that an order for committal cannot be obtained till after a fourth insufficient examination, if at all, by analogy to the practice in case of insufficient answers; therefore, in this case, the party was in error in applying for this order as an order of course. It is clear, that the Chief Clerk would never have thought himself authorised to issue an order, except as of course. Being asked here for an absolute order for committal, he appears to have suggested the more lenient course of making the order in the conditional form in which it was here made, and the parties seem to have agreed to have it made in this form; but that consent was not expressed upon the face of the proceedings, and therefore they would be irregular. But, suppose that the order had been made in the form in which it is stated in Seton that it may be made, it would not be right, because it must be made after a fourth and not a third insufficient examination. But there is a still higher ground, which makes it important to consider, with reference to future proceedings, what was the right course to be taken. If the course suggested by the passage in Seton is to be pursued, there must be a succession of certificates of the insufficiency of the examinations, and then, at every step, the party would be at liberty to take the opinion of the Judge upon the matter so certified (15 & 16 Vict. c. 80, s. 33, and Orders 47 to 52, 16th October, 1852); and thus, before the final order was made, the party would be able to appeal. Or, there might be an application for a serjeant-at-arms, and then the usual order would be, that the party put in his examination within four days, or, in default, that the serjeant-atarms take him into custody (Daniel's Chancery Practice, 1129). I do not think that the dictum in the case of Abley v. Dale (14 Jur. 1069) applies to the practice of this Court. Orders are constantly made, that a person should do a certain act, or, in de- 1854. HAYWARD v. HAYWARD. HAYWARD v. PRICE. |