arising in Wales, shall not incur the penalties of the preceding section, or be deprived of his costs, if the judge shall certify that the title or freehold of land was chiefly in question. This shows that the legislature was not very anxious to take away the right of bringing an action, which concerned the freehold, in the courts of Westminster; and this Court, in interpreting the act, ought to attend to the views which the legislature had in framing it.

The affidavit, taken altogether, is an affidavit which states, as a cause for issuing the certiorari, that the proceedings involve a question which touches the freehold. Now, I think it very difficult to say, that the writ should be refused or granted, according to the notion which the judge sitting here may entertain with regard to the weight of the question in point of law. If, on a motion for a certiorari, he is to consider, not merely whether the question touches the freehold, but whether it is a question of more or less difficulty, the consequence would be, that, in every application of this kind, the merits of the case would be discussed in this Court.

As to the other objection, I am of opinion, on the authority of the case referred to, that replevin is a proceeding which may be removed by certiorari issuing out of Chancery.

The writ ought to be granted.

On the opening of the motion, the Lord Chancellor expressed a doubt, whether the Vice-Chancellor could order a certiorari to issue, inasmuch as that judge could not direct or interfere with, the application of the Great Seal. "Suppose, for instance," said his Lordship, "that

a person

a person is committed for contempt, under the authority of the Great Seal, what power has the Vice-Chancellor to order that person to be discharged? Sometimes the Vice-Chancellor orders a commitment; but that order must be signed by the Lord Chancellor; and it is his duty, before he signs it, to read over the affidavits on which it was made. The Vice-Chancellor has no jurisdiction except as to matters in which he is directed or authorized by the Lord Chancellor to act; and that direction or authority may either be given by express order, or be understood or inferred from what the Lord Chancellor has from time to time permitted the ViceChancellor to do."

It was agreed between the counsel on both sides, that the motion, as to its result, should be taken as a motion for a certiorari made before the Lord Chancellor.

Accordingly, the order made upon it was, not that the application to discharge the Vice-Chancellor's order was refused, but " that the said writ of certiorari do issue."

1826.

EDWARDS

v.

BOWEN.

May 11.
June 8.

On a motion
to discharge
an order made

by the Vice
Chancellor,

be read,

sworn after

AN attachment had issued against the Defendant
Α
Barr, for not paying a sum of money which the
decree ordered him to pay. After he was taken by the
sheriff's officer on the attachment, but before he was sent
to prison, process was issued against him from the affidavits may
Court of Common Pleas, and, under that process, he
was committed to the Fleet. The Plaintiff, having re- the order was
solved to issue a sequestration, made inquiry at the
Six Clerks' Office, whether it was necessary, previous to
issuing a sequestration, to have the Defendant brought Vice Chancel-
up from the Fleet prison to the bar of the Court, and lor.
Qu. Whe-
committed for his contempt. The answer to his in- ther it is regu
quiry was, that, if the contempt was for nonpayment of lar to issue a
sequestration
money pursuant to a decree or order, and the person against the
in contempt was actually in the custody of the Warden property of a

made, and stating facts which were not

before the

party who is in
the Fleet un-

der process from the Common Pleas, and is detained also upon an attachment from
the Court of Chancery, but who has not been brought up by habeas corpus to the
bar of the Court, in order to be turned over to the custody of the Warden.
The irregularity of a sequestration is waived, if the party, against whom it is issued,
gives the sequestrators directions how to deal with his property.

VOL. II.

M

of

1826.

CONST

บ.

BARR.

of the Fleet prison, charged with the contempt, it was not necessary that he should be brought up to the bar of the Court, and committed for the contempt, but that a sequestration might issue upon the certificate of the Warden of the Fleet prison, that the person was in his custody charged with the contempt. The Plaintiff then obtained from the Warden of the Fleet the following certificate: "This is to certify that William Barr was committed to His Majesty's prison of the Fleet, on the 7th day of February 1825, for a breach of a writ of execution of an order from the Court of Chancery, in not paying, within fourteen days after service thereof, the sum of 2495l. 4s. 2d. as commanded; also, detained at the suit of Alexander Milburn; and for no other cause is he detained in my custody."

In Michaelmas term following, the Defendant moved that the sequestration might be discharged as irregular, on the ground, that a sequestration could not issue till the party in contempt had been brought up to the bar of the Court, and turned over to the Warden of the Fleet. The Vice Chancellor discharged the sequestration. (a)

The Plaintiff now moved, that the order of the Vice Chancellor might be discharged. In support of the application, he filed a further affidavit, and brought forward facts and circumstances which had not been before the Vice Chancellor.

It was objected, that this affidavit, having been sworn since the order of the Vice Chancellor was made, could not be read. The motion being an appeal from the judgment of the other branch of the Court, no evidence, it

(a) 2 Sim, & Stu. 452.

was