Whycherley v Barnard
| Jurisdiction | England & Wales |
| Judgment Date | 09 February 1859 |
| Date | 09 February 1859 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 331
HIGH COURT OF CHANCERY
51st order of 16th October 1852 Chief Clerk's Certificate. Summons to Vary after Approval. Practice.
[41] wycheeley v. barnard. Feb. 9, 1859. 51st Order of IQth October 1852. Chief Clerk's Certificate. Summons to Vary after Approval. Practice. A summons to vary a certificate which has been signed and adopted by the Judge in Chambers, if obtained within eight clear days after the certificate has been filed, although not returnable within that period, is sufficient, under the 51st Order of 16th of October 1852, to arrest the certificate, and prevent its being absolute, until the summons has been disposed of. Upon the 3d of August 1858 the Plaintiff obtained a summons to vary a certificate of the Chief Clerk, which had been filed in this cause on the 28th of July. The cause now coming on for further consideration, the Plaintiff claimed to be heard upon the summons. Mr. Willcock, Q.C., and Mr. H. Stevens, for the Defendant, objected in limine that, having regard to the dates, the certificate had become absolute. The summons, not having been obtained until the 3d of August, was not returnable before the 6th, i.e., more than "eight clear days after the filing of the certificate;" and, by the 51st Order of the 16th of October 1852, the time within which an application may be made by summons to vary a certificate or report is limited to eight clear days after the filing of the certificate. They cited Howell v. Kightlcy (2 Jur. (N. S.) 455), and relied on the difference between the wording of the 49th and 51st Orders of the 16th of Oetober 1852, upon which point their argument is sufficiently noticed in the judgment. Mr. James, Q.C., as amicus curice, referred to Osborne v. Foreman (Id. 361). Mr. Rolt, Q.C., and Mr. De L. Giffard, for the Defendant, were not called on. vice-chancellor Sir W. page wood. There is certainly a difference in the wording of the 49th Order, which regulates the steps to be taken to arrest [42] the Chief Clerk's certificate before it has been signed and adopted by the Judge, and that 332 AVISON -V. SIMPSON JOHNS. 43. of the 51st Order, which points out the course to be taken for a similar purpose after it has been so signed and adopted by the Judge. The 49th Order provides that " at the expiration of four clear days after the...
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