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Rules for the Court of Chancery.
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XII. And for remedying the Practice of Courts of Equity in regard to Process of Contempt and the taking of Bills pro Confesso, be it further enacted, That the Rules and Regulations herein-after provided and contained shall be adopted by the High Court of Chancery in Ireland, and shall from henceforth become Orders and Rules of the said Court of Chancery, and be observed and enforced in and by the said Court; (that is to say,)
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1. That where a Defendant is confined for a Misdemeanor, and has been brought before the Court upon an Habeas Corpus, and thereupon has been turned over to the said Marshalsea, pro formâ;, but has been carried back to the Prison from whence he came with his Cause, another Writ of Habeas Corpus may issue, directed to the Gaoler or Keeper of the Prison to which he has been carried back, and thereupon the Defendant shall be brought into Court, and remanded to the Prison from whence he came, with his Cause, without being turned over again to the said Marshalsea, and the Bill may be taken pro Confesso in the same Manner in all respects as if the Defendant had been all along in the Custody of the Marshal of the said Marshalsea.
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2. That if the Defendant, under Process of Contempt for not appearing or not answering, be in actual Custody, and shall not have been sooner brought to the Bar of the Court under Process to answer his Contempt, the Plaintiff, if the Contempt be not sooner cleared, shall bring the Defendant by an Habeas Corpus to the Bar of the Court within Thirty Days from the Time of his being actually in Custody, or detained (being already in Custody) upon Process of Contempt, and if the last Day of such Thirty Days shall happen out of Term, then within the Four First Days of the ensuing Term; and where the Defendant is in Custody of the Serjeant at Arms or of the Messenger upon an Attachment or other Process the Plaintiff shall, within Ten Days after his being taken into such Custody, or if the last of such Ten Days shall happen out of Term, then within the first Four Days of the next ensuing Term, cause the Defendant to be brought to the Bar of the Court; and in case any such Defendant shall not be brought to the Bar of the Court within the respective Times aforesaid the Sheriff, Gaoler or Keeper, Serjeant at Arms or Messenger, in whose Custody he shall be, shall thereupon discharge him out of Custody without Payment by him of the Costs of Contempt, which shall be payable by the Party on whose Behalf the Process issued; and this Rule shall apply to every Defendant in Custody before and at the Time of passing of this Act who shall not have been brought to the Bar of the Court, but the Thirty Days allowed in the first above-mentioned Case and the Ten Days allowed in the second above-mentioned Case shall be reckoned from the first Day of the next Term.
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3. That if a Defendant, upon being brought before the Court upon an Habeas Corpus, shall make Oath (which shall be administered to him by the Registrar, and he shall be examined in open Court,) that he is unable by reason of Poverty to employ a Solicitor to put in his Answer, the Court shall thereupon refer it to a Master in Rotation to inquire into the Truth of that Allegation, and to report thereon to the Court forthwith, and thereupon the Court may make such Order as upon other Reports of the like Nature under the Provisions herein-after contained.
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4. That on the Thirtieth Day of January, the Thirtieth Day of April, the Thirtieth Day of July, and the Thirtieth Day of October in every Year, or if any of those Days happen on a Sunday, then on the following Day, One of the Masters of the Court of Chancery, to be named by the Court, shall visit the said Marshalsea Prison, and examine the Prisoners confined there for Contempt, and shall report his Opinion on their respective Cases to the Court; and thereupon it shall be lawful for the Court to order, if it shall see fit, that the Costs of the Contempt of any such Prisoner shall be paid out of the Interest and Dividends arising from the several Government or Parliamentary Securities standing in the Name of the Accountant General of the said Court of Chancery, intituled “Account of Monies placed out for the Benefit and better Security of the Suitors of the High Court of Chancery,” and “Account of Securities purchased with Surplus Interest arising from Securities carried to an Account of Monies placed out for the Benefit and better Security of the Suitors of the High Court of Chancery,” or out of any Cash standing to either of such Accounts, or to any other Account which is now or hereafter may be standing to the Credit of the Suitors of the said Court of Chancery, (after and subject to the Payment of all Charges which by any Act heretofore passed are directed to be paid thereout,) and to assign a Solicitor and Counsel to such Prisoner, for putting in his Answer and defending him in formâ pauperis, and to direct any such Prisoner, having previously done such Acts as the Court shall direct, to be discharged out of Custody; provided that if any such Defendant shall become entitled to any Funds out of such Cause, the same shall be applied, under the Direction of said Court, in the first instance, to the Reimbursement of the Suitors Fund.
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5. That it shall be lawful for the Master visiting the said Marshalsea, or to whom the Case of a Prisoner shall be referred by the Court itself, to examine the Prisoner and all other Persons whom he may think it proper to examine upon Oath, and to administer an Oath or Oaths to any such Prisoner and other Persons accordingly, and to cause any Officers, Clerks, and Ministers of any Court of Law or Equity to bring and produce upon Oath before him any Records, Orders, Books, Papers, or other Writings belonging to the said Courts or to any Officers within the same as such Officers.
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6. That if it shall appear to the Satisfaction of the Court that any such Prisoner is an Idiot, Lunatic, or of unsound Mind, although no Commission has issued, the Court shall appoint a Guardian to put in his Answer, and discharge the Defendant, providing for the Costs in any of the Ways pointed out by this Act, as shall seem just; and if the Court shall see fit, the Defence may be made by such Guardian in formâ pauperis.
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7. That where the Defendant has been brought to the Bar of the Court for his Contempt in not answering, and refuses or neglects to answer, (not being Idiot, Lunatic, or of unsound Mind,) the Court may, upon Motion or Petition, of which due Notice shall be given personally to the Defendant, authorize the Plaintiff to amend his Bill, without such Amendment operating as a Discharge of the Contempt, or rendering it necessary to proceed with the Process of Contempt de noro; but after such Amendment the Plaintiff may proceed to take the amended Bill pro Confesso, in the same Manner as if it had not been amended: Provided nevertheless, that if the Defendant shall be desirous to answer such amended Bill, the Court shall allow him such Time as shall seem just for that Purpose; but if he shall not within the Time allowed by the Court put in a sufficient Answer to the amended Bill, the Process for taking the Bill pro Confesso may be resumed and carried on.
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8. That in every Case where the Defendant has been brought to the Bar of the Court to answer his Contempt for not answering, and shall refuse or neglect to answer within the next Twenty-one Days, the Plaintiff shall be at liberty, with the Leave of the Court, upon Ten Days previous Notice to the Defendant, after the Expiration of such Twenty-one Days, unless good Cause be shown to the contrary, instead of proceeding to have the Bill taken pro Confesso, to put in such an Answer to the Bill as herein-after is mentioned, in the Name of the Defendant, without Oath or Signature, and thereupon the Suit shall proceed in the same Manner as if such Answer were really the Answer of the Defendant, with which the Plaintiff was satisfied, and the Costs of the Contempt and of putting in such Answer may be provided for in like Manner as if the Defendant himself had put in such Answer; and such Answer, besides the formal Parts thereof, shall be to the following Effect; that the Defendant leaves the Plaintiff to make such Proofs of the several Matters in the Bill alleged as he shall be able or be advised, and submits his Interests to the Court.
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9. That in any Case where, upon the Application of the Plaintiff, the Court shall be satisfied that Justice cannot be done to the Plaintiff without an Answer to the Bill or to the Interrogatories from the Defendant himself, it shall be lawful for the Court to order the Defendant to remain in Custody until Answer or further Order, but without Prejudice to the Plaintiff’s availing himself of any of the Provisions of this Act.
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10. That where the Defendant is in Contempt for not appearing or not answering, and in actual Custody under Process for such Contempt, or being already in Custody shall be detained by an Attachment for such Contempt, and shall not, where the Contempt is for not appearing, enter an Appearance within Twenty-one Days after he is lodged in Gaol or Prison, or the Attachment is lodged against him (he being already in Prison), as the Case may be, or, where the Contempt is for not answering, put in an Answer within Two Calendar Months after he is lodged in Gaol or Prison, or the Attachment is lodged against him, he being already in Prison, the Plaintiff shall (as the Case may be), within Fourteen Days after the Period computed from the Expiration of such Twenty-one Days within which be may by the Provisions of this Act be able to enter such Appearance, cause an Appearance to be entered for the Defendant under the Powers of this Act, and shall at the Expiration of such Two Calendar Months proceed to take the Bill pro Confesso, and shall accordingly obtain an Order for taking the same pro Confesso within Six Weeks after the Period computed from the Expiration of such Two Calendar Months within which he may be able to take the same pro Confesso; or in default of so doing in either of such Cases the Defendant shall, upon Application to the Court, be entitled to be discharged out of Custody without paying any of the Costs of the Contempt, unless the Court shall, under the Power herein-before contained, sec good Cause to remand and detain the Defendant in Custody; and this Rule shall apply to every Defendant in Custody before and at the Time of the passing of this Act who shall not have entered his Appearance, and for whom an Appearance shall not have been entered, or shall not have answered the Bill, and the Bill shall not have been taken pro Confesso, but the Twenty-one Days and Two Calendar Months respectively to be reckoned from the First Day of next Term, and the other Periods to be altered accordingly in Computation; but nothing in this Act shall prevent any Plaintiff from proceeding to take his Bill pro Confesso, according to the Practice existing before the passing of this Act, without Prejudice to the Right of the Defendant to be discharged if not effected within the Time herein-before limited.
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11. That where a Defendant is in Custody for a Contempt in not answering, and shall be able to put in his Answer without taking an Office Copy of the Bill, he shall not be compellable to take any such Copy, but the proper Officer may (if he think the Defendant is of sufficient Ability to pay for an Office Copy, and an Office Copy ought by the Practice of the Court to be taken out,) require him, before the Answer is filed, to make an Affidavit denying his Ability in consequence of Poverty to pay for an Office Copy of the Bill.
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12. That when any Person shall have been directed by any Decree or Order to execute any Deed or other Instrument, or make a Surrender or Transfer, and shall have refused or neglected to execute such Deed or Instrument, or to make such Surrender or Transfer, and shall have been committed to Prison under Process for such Contempt, or, being confined in Prison for any other Cause, shall have been charged with or detained under Process for such Contempt, and shall remain in such Prison, and the Court shall, under the Powers of an Act passed in the Fourth and Fifth Years of His present Majesty’s Reign, have ordered one of the Masters to execute any Deed or other Instrument, Surrender or Transfer, for and in the Name of such Person, in every such Case, within Ten Days after the Execution or making of any such Deed or other Instrument, or Surrender or Transfer, Notice thereof shall be given by the adverse Solicitor to the Party in whose Name the same is executed or made; and such Party, as soon as the Deed or other Instrument, or Surrender or Transfer, shall be executed, made, levied, or suffered, shall be considered as having cleared his Contempt, except as far as regards the Payment of the Costs of the Contempt, and shall be entitled to be discharged therefrom under any of the Provisions of this Act applicable to his Case; and the Court shall make such Order as shall be just touching the Payment of the Costs of or attending any such Deed, Surrender, Instrument, or Transfer.
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13. That where a Person shall be committed for a Contempt in not delivering to any Person or Persons, or depositing in Court or elsewhere, as by any Order may be directed, Books, Papers, or any other Articles or Things, any Sequestrator or Sequestrators appointed under any Commission of Sequestration shall have the same Power to seize and take such Books, Papers, Writings, or other Articles or Things, being in the Custody or Power of the Person against whom the Sequestration issues, as they would have over his own Property, and thereupon such Articles or Things so seized and taken shall be dealt with by the Court as shall be just; and after such Seizure it shall be lawful for the Court, upon the Application of the Prisoner, or of any other Person in the Cause or Matter, or upon any Report to be made in pursuance of this Act, to make such Order for the Discharge of the Prisoner, upon such Terms, and, if it shall see fit, making any Costs to be Costs in the Cause, as to the Court shall seem proper.
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14. That in all Cases of Contempt other than and besides those already provided for, where any Person or Persons is or are or shall at any Time hereafter be in Prison under or by reason of any Commitment or Attachment, the Court may, upon any such Application as last aforesaid, or upon any such Report as aforesaid, make such Order for the Discharge of the Prisoner from the Contempt, upon any such Terms, and making, if the Court shall see fit, any Costs to be Costs in the Cause, as to the Court shall seem proper, or except as to the Costs, for which Costs the Prisoner shall remain in Custody, but entitled to the Provisions herein-after contained if he be insolvent.
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15. That wherever the Court shall, upon any such Report as aforesaid, or upon Investigation of the Case of a Prisoner by the Court itself, be of opinion that the Purposes of Justice will not be answered by his remaining any longer in Custody, or where it shall appear upon any such Report as aforesaid that any Person committed for a Contempt shall be entitled to his Discharge upon applying to the Court, but shall omit to make such Application, the Court may, either with his Assent or compulsorily, discharge such Person from the Contempt and from Custody, and pay the Costs of the Contempt out of any Funds belonging to him over which the Court may have Power, or make them Costs in the Cause as against him, or may discharge him from the Contempt, but leave him in Custody for the Costs, which may be cleared, if he be insolvent, under the Provisions herein-after contained in that Behalf.
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16. That where any Party obstinately retains Possession of Lands or other Real Property after a Writ of Execution of a Decree or an Order for Delivery of Possession has been duly served, and Demand of Possession made, and upon an Affidavit of such Service of the Writ of Execution, and of such Demand made thereunder, and a Refusal to comply therewith on the Part of the Person against whom the Writ issued, the Party issuing it shall be at liberty, upon an Affidavit of Service of the Writ of Execution, and Demand of Possession, and Refusal, to obtain the usual Order of Course for the Writ of Assistance to issue, and that the intermediate Writs of Attachment and Injunction, further commanding the Party to deliver Possession, or any other Writ, shall be unnecessary.
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17. That in order to relieve Persons in Prison from the Expence of taking Affidavits or Answers, the Lord High Chancellor do, by One or more Commission or Commissions under the Great Seal, upon or in respect of which no Fee shall be payable, nominate and appoint the Marshal, Keeper, or other Chief Officer of every Prison within the City of Dublin, or within Two Miles thereof, and their Deputies, to be Masters Extraordinary of the High Court of Chancery, for the Purpose of taking and receiving such Affidavits and Answers as any Person or Persons within any such Prison shall be willing or desirous to make, and for no other Purpose; and the Person so taking such Affidavit or Answer shall not in respect thereof be entitled to receive any Fee; and the Court of Exchequer shall in like Manner appoint such Persons as aforesaid a Commissioner or Commissioners of the said Court for the Purposes aforesaid, and no others, and without the Right to any Fee; and in every Case of an Answer being sworn in Prison a Clerk of the Deputy Keeper of the Rolls or of the Filazer of the Exchequer (as the Case may require) shall attend to take and carry back to and from the Prison the Answer, and shall in respect thereof be entitled to
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