Qlnrn^ll ICam i>rl|nol ICtbrarii maroljaU lEquttg (dollcrtton (Sift of IE- 31. MaraljaU, SI.ffi. 1. 1894 CORNELL UNIVERSITY LIBRARY 3 1924 084 263 30 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924084263130 THE GENERAL RULES, AND ORDERS, or THE COURTS OF LAW, AND EQUITY, THE PROYINCE OF ONTARIO. PRIOR TO THE ONTARIO JUDICATURE ACT, 1881, NOW REMAINING IN FORCE. WITH NOTES GEORGE SMITH HOLMESTED, (Registrar of the Chancery Division, H. C. J.) VOL. I. THE CHANCERY ORDERS. TORONTO : ROWSELL & HUTCHISON. 1884. (^^y^-^ Entered according to the Act of the Parliameut of Canada, in the year of our Lord one thousand eight hundred and eighty-four by Geobgj: Smith HoLMESTED, in the Office of the Minister of Agriculture. TOEONTO : ROWSELL AND HUTCHISON, PRINTERS. PREFACE. The changes in civil procedure effected by The Judicature A ct have liad the effect of practically abrogating many of the General Orders and Rules of the former Courts of Law and Equity ; at the same time, a great many of those Rules and Orders are still in operation under the new system of practice inaugurated by that Act. It thus becomes of importance to the practitioner, to ascertain which ■of the Rules and Orders of the former Courts are still in force ; and the object of this work, is to assist him in arriving at a conclusion on that important question. The first volume contains the Chancery Orders, which appear to be still opei'ative, and in the notes to these Orders will be found references to a great number of Canadian and English cases bearing on their con- struction, and illustrating the practice under them, together with appropriate references to the changes made in the practice, since the original promulgation of the Orders. The second volume will contain the Rules of the Courts of Queen's Bench, Common Pleas, and Court of Appeal, together with the additional Rules of the Supreme Court of Ontario, passed since The Judicature Act took effect. Mr. Walter Barwick, a gentleman in extensive practice, has obligingly read the proof sheets of this volume as it passed through the press, and has made some valuable suggestions, which 1 have gladly availed myself of, and thi-ough his vigilance I have also been enabled to correct some few errors which might otherwise have passed unobserved. iv Preface. The generous approval which my professional brethren have bestowed on my former literary efforts, leads me to hope that this work, on which much labour has beeo expended during the past two years, may be found to be of such practical value, as to merit, and receive their approbation. G.S. H. Obgoode Hail, 4th January, 1884. TABLE OF CASES CITED. A. A. B. & C.,Re 26 Abell V. Weir 370 Abrey v. Newman 33 Acaster v. Anderson 277 Aclanil V. Gaisford 105 Adams, Ee— Adams v. Muirliead 283, 365 Adamsou -■. Adamson..90, 117, 118, 279 — V. Gill 328 ^tnalns. Co., Re 93, 121 Agar V. Fairfax 370 Aikins v. Blain 152 Airey v. Mitchell 105, 204, 250 Aitchison v. Coombs 101 Aitken, Re 30 — V. Wilson 86 Alchin V. Buffalo & L. H. R. Co. . .23, 24 Alcock,Re— Prescottv.Phipps(adda.) 272 Aldwell V. Aldwell 204, 208, 209 ' Allan V. Andrews 70 — V. McTavish 102, 212, 252 — Ee—tocook V.Allan 94, 103,277,362 Allen V. Parke 40 — V. Eichardson 207 — v. Taylor 142 Alliance Bank v. Brown 251 Alston V. Trollope 280 Alven V. Bond 196 Ambler v. Lindsay 40 Ames V. Birkenhead Docks 157 Anderson v. Dongall 114, 367 — V. Kilboru 350 — V. Paine 35 — V. Stather 142 — V.Thorpe 89,134,226 Andrews v. Bohaunon 8, 181 — Walton :. 146 Angel V. Smith 157, 161, 1 64 Angell V. Haddon 120 Anglo-Italian Bank v. Davies 152 Annis v. Wilson 263 Anon ( t Gr. 61) 80, 260 — (6 Gr. 632) 323 — (12 C. L. J. 204) 31 — (4 Chy. Ch. R. 22) 308 — (13 Beav. 420) 329 — (4 P. R. 242) 60 — (12 Ves. 4) 151 A. Ardagh v. Orchard 263 — V. Wilson 258 Armstrong v. Gage 1 38 Armour v. Carruthcrs 253 — V.Smith 308 Arnott, Re Chatterton v. Chatter- ton 79, 340, 371 Ashbough V. Ashbough 322, 304 Ashley v. Taylor 75 Aston V. Innis 108 Atkinson, Ee 251 — V. Henshaw 151 — V. M.ickreth 184 Attorney, Re (7 P. R. 311) 26 — (39 U. C. Q. B. 171) ).... 30 Attorney-General v. Alford 95, SG — V. Avon Corporation .... 43 — V. Chambers 328 — V. Colney Hatch Asylum 328 — V. Leicester Gorooration 54 — V. Merthyr Tydfil 328 — V. McNulty 214 — V. Pierson 54 — V. Ray 329 — . V.Solly 96 — V. Tomline 181 Austin V. Story 254 Axford, Re 324 B. B. V. W 60 Babcook, Ee 277 -- V. Bedford 142 Baby v. Woodbridge 24R Backhouse v. Charlton 228 Baker v. (Jray 249 — V. Trainer 50 Bald V. Thomsson ;...114, 115, 266, 3()4 Baldwin v. Crawford 226 Ball V. Jarvis 253 — V. Oliver 151 Ballard v. Marsden 41 — v. Tonilinson 7, 353 Bamford v. Bamf ord 107 Band v. Randle 34 VI Table of Cases. B. Bank of BritishNorth America v. 15ddy 63 — V. iLallory '284 — Moore 261 Bank of Montreal v. Baker 257 — V. Fox 203, 205 — V. Harrison 23 V. Ketchum 274 — V. Miinro 256 — V. Eyan 176, 177 — V. Taylor 243 — V. Wallace 34, 204 — V. Wilson .... 67 Bank of Toronto v. Beaver & Toronto Mutual Fire Ins. Co 43 Bank of Upper Canada v. Wallace 178, 274 — Scott 228, 232, 235 Banks r. C'artwright 123 Bannister, B.e - Broad V. Muntou .. 192 Barber v. Mackrell 102, 103 Barfield v. Loughborough 100 Barker, Ee 318, 321 — V. Eccles 259 — V. Hemming 29 Barren, Ex parte 198, 202 Barrett v. Barrett 28 — V. Campbell 174 -- V. Haitley Ill Barry v. Barry .' 44, 283. 364 — V. Brazill 316, 368 Bartlett, Ee Newman v. Hook 200 — >'. .Bees (adda.) . . . .228, 258, 264 Barwick v. Barwick 252 Basliam, Ee — Hannay v. Basham . , 364 Bateman v. Margerison 39, 52, 72 Bates V. Hillcoat 258 Baugh V. Price 109 Baxter v. Fiulay 191 — V. TurnbuU 55 Baynard v. Wooley 45 Beamish v. Pomeroy 7 Bear v. Smitli 72 Beard v. Gray 223 Beardmore v. Gregory 39, 41 Beaton v. Boomer 98 Beaty v. Eadenhurst 194, 199, 267 Beaufort v. Berty 151 Beavan v. Burgess 12 & Whitting, Ee 27 Becher v. Webb 247 Beekman v. Jarvis 256 Beevor v. Luck 258 Bell, Ee _ 295 — Re— Bell v. Bell 278 — V. Landoi) 42 — V. Walker 214, 240 Bellamy v. Brickenden 112 B. Bellamy v. Sabine 243 Belaney v. Ffrench 27 Belton, Ex parte 20 Bennett v. Baxter 89 — V. Bowen 103 — V. Foster 49 — V. Hamill 214 — V. O'Meara 18, 150, 331 — V. Wheeler 192, 193 Bently v. Jack 134 Berdan v. Greenwood 70, 117 Berkeley's Trusts, Ee 114 Bernard v. Alley 140, 262 Berney v. Sewell 151 Berrie v. Moore 167 Berry v. Gibbons 193 Berwick v. Murray 96 T essey v. Graham 259 Bethune v. Calcutt 112, 266 Betts V. Neilson 57 Bevis V. Boulton 108, 109 BiddeU v. Casey 117 Biehn v. Biehn 108 Bigelow V. Bigelow 16, 86 Biggar v. Dickson 113 Bigger Ee 80 Biggs V. Bree 198 — V. Penn 55 Bilton V. Blakely 56, 153 Birch V. Joy 204 — V. Williams 74 Bird V. Heath 181, 182 Birdsell v. Johnson 118 Binnington v. Harwood 101 Bishop V. Willis 60 Bishopriok, Re 319, 320 Blackburn v. Oaine 264 Blackborough v. Eavenhill 81 Blackburn v. HherifJ 202 Blackstock v. McFarlane 373 Blain v. Terryberry 97 Blake, Re 30, 31 — V. Beaty 266 Blakeney v. Dufaur 155 Blaney v. McGrath 336 Elasdell v. Baldwin 370 Bliss V. Putnam 34 Blogg V. Johnston 98, 99 Blong V. Kennedy . ■. 263 Bloomer v. Spittle 106 Bloomfield v. Brooke 165 Blunden v. Desart 26 — V. Henderson 25 Boatwright v. Boatwright 280 Boddy, Ee 318, 321 Bogg V. Midland E. W. Co 327 Table of Cases. B. Bolckow V. Foster 56 Bolkow V. Foster 63, 66 Bolton V. School Board 204 — V. Stannard 51, 52 Bonitlion v. Hookmore Ill Bonville v. Bouville 100 Bos V. Helsham 207 Boswortli, E.e Howard v. Easton 44, 364 Boughton, Ee Boughton v. Boughton 27 Boulton V. Hugel 215 — V. Peard 42 Bowen, Re — Bennett v. Bowen .... 103 — V. Fox 216 Bowslaugli V. Bowslaugh 293 Box V. Bridgman 246, 259, 265 Boyd V. Simpson 16, 86 Boys' Home v. Lewis 1 14, 367 Boyse, Re 117 — Re Crofton v. Crofton 70 Bozon V. BoUand 25, 27, 28 Bradburne v. Shanly 106 Bradley v. Bradley 292 — V. Clark 63 — V. Wilson 38 Brady v. Keenan 105, 203 — V. Walls 212 Braithwaite, Re— B. v. Wallis 364 Brandon v. Brandon 105 Brampton & L. R. W. Co., Re .... 75 Brant v. Willougby 155 Brantfordv. Grand River Navigation Co 153 Braun v. Aiimond 115 Brazill,Re— Barry V. Brazill 108, 109, 368 Brearcliff v. Dorrington 160 Breckenridge v. Ontario L. & JD. Co 5 Breeze v. Midland R. W. Go 153 Brett V. Smith 142 Brewer v. Yorke 100 Bridge v. Brown 108 Bridges v. Hales 151 Bridget v. Hames 45 Brigham v. Smith 29, 132 Bright V. Tyndall 327 Brignall v. Whitehead 13 Bristow V. Whitmore 327 British Dynamite Co. v. Krebs .... 6 Broad v. Selfe Ill Brocas v. Lloyd 147 Brook V. Cameron 284 — V. Saul 200 Bromley, Re 44, 364 Brook V. Stone 112 Brooks V. Farlar 142 Brotherton v. Hetherington Ill B. Brough V. Brantford N. & P. B. R. W.Co 175, 33.3, 336 Brower v. Canada Permanent Build- ing Society 248 Brown, Re 38, 295, 298, 300 — V. Brown 369 — Re — Brown v. Brown 375 — V. Capron 118,279 — V. Conant 28 — T. Beacon 251 — V. Dollard. . . . 136, 138, 217, 340 — V. Parr 142 — V. Perry - 156 Browne v. Cross 97 Brownlee v. Cunningham 177, 248 Brownscomb v. TuUy 28 Brouse v. Stayner 178 Briice v. Canadian Bank of Com- merce 182 Bruere v. Pemberton 97 Bryant, Ex parte 28 Brydges v. BranfiU 184 Buchan.v. Wilkes 191-2 Buchanan v. Kerby 254 — V. Tiffany 91, 246 Buck, Re Peck v. Buck 205 Buoke V. Murray 149 Buckler v. Bowman 259 Buckley v. Ouellette 274 — V. Wilson 238 Buell V. Fisher 231 — V. Towns 236 Bull V. Harper 192, 205, 207, 208 BuUey v. Bulley 50 Burden v. Burden 97 Burdett v, Rockley 161 Burdick v. Garrick 95, 96 Burford v. Lymburner 263 Burke v. Pyne 235 Burnet v. Allen 165 Burnham v. Gait 266 — V. Garvey 59 Burns v. Boyd 215 — V. The Canada Co 35 — V. Chamberlain 137 Burritt v. Burritt 104 — V. Murdock 224 Burroughs v. Oakley 208 Burrows v. Hainey 331 Burton v. Chesterfield 29 Burton v. Gore District M. F. I. Co. 254 Bury V. AUen 106 Bush V. Watkins 72 Byam v. Byam 327 — V. Sutton 36 Byers v. Woodburn 134, 221, 373 VIU Table of Cases. Cabbum, Re 363 Caddick v. Cook 37 Cade V. Newhall 135 Cahuac v. Durie 260 Caisse v. Buinham 135, 139 Caldwell v. Hall. .100, 101, 102, 105, 138, 252, 255 Callicott, Re 319 Calvert v. Godfrey 214, 318, 321 Cameron, Re 308 — V. Cameron 260 — V. Campbell 29. 41 — V. Bethune 98,113 — V. Kerr . . ^ 254 — V. Leroux 375 — v. McDonald 277 — V. MoRae 272 — >'. Wolfe Island R. W. Co. 247 Camilla v. Donato 75 Campbell, Re 80 — V. Bell 279, 365 — V. Campbell . . .293, 319, 375 — V. Edwards 178 — V. Garrett 141, 263 — V. Holyland 265 — V. Tucker 63 — V. Walker 109 Canada Central R. W. Co. v. The Queen 326 Canada Landed Ci-edit Co. v. McAl- lister 244 Canada Permanent Building Society V. Wallis 212 Canada Permanent L. & S. Co. v. Ross 212 Canada Permanent L. & S. Co. v. Young 206 Cane v. Martin 26 Canham v. Neale 121 Canu V. Cann 207 Cauty V. Houlditch 145 Carling v. Austin 225 Carmichael v. Ferris 206 Carpenter v. Hamilton 150 — V. Solicitor to the Treasury 156 — V.Wood 103,116,277 Carradice v. Currie 1,30 Carr v. Carr 293 Carrick v. Smith 108-9 Carroll, Re 340 — V.Carroll 280,363 — v.Eccles 102 — V. Hopkins 258, 273 — V. RobertsonlOl, 105, 109, 110, 250 Carter v. Wake 228 Gary v. Hills 39 Case V. Midland R. W. Co 328 Casey, Re — Biddell v. Casey 117 Casson v. Roberts 198, 202' Cast V. Poyser 120- Ciastellain v. Preston 200, 254 Catell V. Simons 247 Catholic Printing Co. v. Mfiman. .75, 149 Catlin, Re 19- Cattanach v. Urquhart 102, 252 Caverhill, Re 298, 307 Cawdor v. Lewis 108 Cayley v. Hodgson 239 Chad wick v. Thompson 329' Chalk v. Raine ....'. 152 Chalmers v. Laurie 49 — V. Pigott 70 Chamberlain, Re 299, 300, 306, 307 Chamberlen v. Clarke ....284, 290, 291 Chambers, Re 320' — v. Gold win Ill Chance v. Henderson 65, 70 Chandler, Re 30 Chaplin v. Young 104 Chard v. Meyers 135. 138^ Charles. Re 212, 213 Chattertou v. Chatterton 79, 340, 371 Chennell v. Martin 129 Chesworth v. Hunt 249 Chippendale, Ex p 99' Chisholm v. Allen 274 — V. Barnard.. 103, 104, 113, 114 Cholmondeley v. Clinton 24, 25, 30' Christie v. Dowker 227, 269, 377 Christmas, Re 9' Christophers v. White 112 Churcher v. Bates 108 Churchill. Re 109' City Bank v. Maulson 115 — V. Scatoherd 363- City Discount Co. v. McLean 254 Clack T. Carlow 1 12 Clagett, Re Fordham v. Clagett 120, 137 Clark v. Bogart 259' — v. Clark 167, 372 — V. Clarke 47 — Re Cumberland v. Clark .... 372 — >■. Eocles 25, 28- — V. Law 145, 149 Clarke, Re 279 — V. Best 230 — V. Cook 50, 326 — V. Hawke 65 — V. Palmer 257 Clarkson v. Henderson 250' Clarkson v. Scott 227, 230, 269, 377 Clayton's Case 253- Clegg V. Rowland 41 Table of Casks. IX 0. Olements v. Arnold 318 ■Clendinning v Varcoe 149 •Cleveland v. McDonald 50 Clifford V Tun-ill 8 Cline V. Cline 57, 345 Clousterv. McLean ..130, 131, 132, 177 ■Clutton V. Pardon 25 ■Coatea v, Edmonson 18 — V. MoGlashan 136 Oockburn v. Edwards 253 <::ookenour v. Bullock 211, 229 Cocks V. Cray 105 Codrington v. Parker 152 ■Cogswell V. Sugden 326 Colclough V. Sterum 214 ■Coldwell v. Hall 100, 101, 102, 105, 138, 252 255 •Cole V.' Glover! '.'.'....'.'. .40, 44^ 283,' 364 •Colebourne v. Oolebourne 150, 151 Colegrave v. Manley 26 Coleman v. Whitehead 42 CoUas v. Hesse 36 Collins v. Carey 112 — V. Denison 49, 201 — V. Martin 319 €olmer v. Ede 25 ■Collver V. Swayzie 36, 80, 340 Collyer v. Fallon 163 ■Colonial Trusts v. Cameron ... .113, 178 Colthart, Re 319 •Colton, Re Fisher v. Colton 365 Coly er v. Colyer 49 Commercial Bank v. Graham 90, 226, 264 — V. McConnell 201, 208 •Commerell v. Poynton 26 Commissioners of Cobourg, Re 113 Commissioners of London v. Gillatly 53 •Connors v . Squires 28 ConoUy v. Hill 174 •Consett V. Bell 43 Consolidated Bank v. Neilon 57, 58 Const V. Harris 153 Constable v. Guest 110, 250 V. Howiok 264 •Converse v. Michie 256 Cook V. Boulton 89 — V. Broomhead 73 — V. Flood ■ 228 — V. Grant 279 — V. Fowler 251, 287 — \. Benbow 99, 100 — V. Gittings 39 •Cooley V. Smith 214 Cooper V. Hewson 27 Coppard v. Allen 55 Cormook v. Beisly 28 C. Cormioks, Re 150 Cornwall v. Henriod 239, 276 Corrigal v. Henry 41 Corsellis v. Patman 239, 276 Cotter V. Cotter 86 Cotton V. Vansittart 120 Cottrell V, Cottrell 216 Counter v. VVylde 263 Court V. Holland 71, lOo, 107. 118, '120, 137, 248, 255 Courtney v. Stock 73 Courtoy V. Vincent 159 Cowell V. Simpson 26, 27 Gowper v. Taylor 163 Cox V. Baker 326 — V. Barnard 51 , 52 — V. Stephens 55 — V. Taylor 33 Cozens V. MoDougal 135 (Jrackelt v. Bethune 96 Cracknall v. Janson 60 Cradook v. Piper 112 Craig v. Craig .' 293 Cramer, Ex p 34 Crandell v. Moon 118 Crawford v. Armour 229 — V. Beard 256 — V. Birdsall 314 V.Boyd 196,199,201 V. Lundy 174 — V. Meldrum 128, 129 Crawshay v. Collins 96 Cresswell v. Byron 28 Creswick v. Thompson 192 Crippen v. Ogilvie 101 Crispin v. Cumano 162 Crockett v. Bishton 141 Croft V, Waterton 36 Orofton V. Crofton 70, 117 Crooks V. Crooks' 200, 279 — V. Glen . . 198, 199, 201. 202, 208 — V. Street 202, 208 — V. Watkins 128, 133, 245, 259, 280 Cropper v. Mellersh 51, 52 Crosbie v. Fenn 243, 244 Cross, Re 26, 28 — v. Cross 293 Cross-Harston, Re 52 Crowe V. Steeper 137, 172, 175 Cruso V. Bond 273 — V. Close 232 Cudnev v. Cudney 98 Cumberland v. Clark 372 Cummer v. Tomlinson 264 Cummins v. Fletcher 249 — V. Harrison 2.?8 Table of Cases. c. Cnmmings, Ee 297 — V. Usher 253 Curling v. Austin 225 Curran v. Little 206 Currie, Ee 30 Curtis V. Coleman 371 Curtius V. Caledonian Fire & Life Ins. Co 33, 34 Cutlibert V. Commercial Travellers' Association 29, 57 Cutlibert V. Cuthbert 370 — V. Wharmby 119,287 Cutts, Re 30 D. Dagg V. Dagg 103, 115, 368 "Dalby v. Humphrey 251, 287 — V. Pnllen 190 Dale \ . Hamilton 190 Dalziel v. Grand Trunk E. W. Co . . 56 Dance v. Goldringham 44, 192 Daniell v. Sinclair 250 Darby v. Greenlees 202, 208 Darling v. Darling 47, 79 Darlington v. Hamilton 213 Darling v. "\A'ilson 240 Daubney v. Lake 48 Daubuz V. Peel 58 Davenport v. Stafford 6. 97 Davey v. Durant 109, 110, 147 Davidson v. Boomer 99 — V. Douglas 27 — V. Leslie 23 — V. Thirkell 100, 106 Davies v. Boulcott 34 -- V. Clough 25 Davis, Ee 81 — V. Chanter 36 — V. Combermere 92 — V. Davis !63, 181 — V. Duke of Marlborough .... 155 -- V. May 100 — V. Snyder 108 — V. White 269 — V. Wickson 57, 65 Davy V. Davy 67 Day V. Brovfn 138 — V. Eadclifife 51 Dayer v. Eobertson 68 Dawson v. Graham 45 Dee V. Wade 44 Dean v. Wilson 190 Dean of St. Paul's, Ex p 353 De Blaquiere v. Armstrong 135 D. De Brito v. Hillel 14» Deedes v. Graham 99 De f orrest v. Bunnell 142 De Feuoheres v. Dawes 13 De Hertel v. Supple 99 Delaroude, Ee 40 Delavante v. Child 72 Delisle v. McCaw 52 Denison v. Denison ... .90, 114, 134, 367 — V. Fuller 208 Dent V. Dent 162 Devaynes v. Noble 253 — V. Eobinson 55 Devey v. Thornton 72 Dewalt V. Hughitt 63 Dewitt V. Thomas 214 De Windt v. De Windt 327 Dey V. Dey 40, 285 Dibbs V. Goren 42 Dickey v. Heron 201 Dickinson v. Burrell 240 Dickson, Ee 297, 299 — V. Avery 135 — V. Covert 63 — V. Draper 52 Dilk V Douglas 52, 245 Dillon V. Lord Mountcashel 151 Dinham v. Bradford 100 Dixon V. Pyner 190 Dobson V. Land 63, 101, 112, 249 — V. Marshall 79 Docker v. Somes 96 Dodds V. Attorney-General 313 Dodge V. Olapp 375 Dodson V. Sammell 44 DoUand v. Johnson 30 Dominion Savings & Ins. Co. v. Kittridge 249, 256 Doniville v. Berrington 195 Donelly v. Jones 149 Doner v. Eoss 284 Donne v. Lewis 8, 9 Doody V. Higgins 38, 49 Dornyn v. Fralick 272 Dougherty, Ee 306, 307 Doupe V. Stewart 106 Dowdeswell v. Dowdeswell 39 Dowling V. Dowling 327 Downey v. Parnell 250 — V. Eoaf 138, 177, 225 Doyle V. Blake 42, 104 Drake v. Drake 75 Drummond v. Anderson 7, 8, 9 Dryden v. Frost 142 Dudley v. Berczy 105, 135, 206, 235 Dufaur, Ee 19 Taelk of Casks. D. Duggau V. McKay 48, 178 Dumble v. Cobourg & Peterborough E. W. Co 178 Dumble v. Larush 128 Dundas v. Hamilton & Milton E. W. Co 165 Dundonald v. Masterman 184 Dunham, Ee 309 Dunley, Ee 283 Dunlevy, Ee 364 Dunn V. Attorney-General .... 228. 264 — V. McLean 66, 67, 142 — V. Vere 198 Dunnet v. Forneri 67 Dymond v. Croft 82 E. Eagles, Re 80 Eaton, Ee,Byersv. Woodburn l.S4,221,373 Eberts v. Eberts 277 Eccles V. Lowry 35, 51, 53, 284 Edinburgh Life Ass. Co. v. Allen 39, 45, 116, 248, 278-9 Edwards, Ee 28 — V. Acland 88 — V. Burhng 235 — V. Durgen 319 — V. Edwards 157 — V. Pearson (adda. ) 173 Egleson v. Howe 207 Eldridge v. Burgess 73 Ellice V. Goodson 36 Elliott V. Hunter 248 — V. Jayne 249 Ellis V. Ellis 262 Ellison V. Thomas 48 EUwood V. Pierce 202, 208 Else V. Else 193, 213 Elton V. Curteis 266 Ely, Dean of, v. Gayford 35 Emden v. Carte 32 Ernes V. Emes 103 Emma Mine, Ee— Ex. p. Turner 26 English V. English . .47, 48, 49, 284, 374 Erskine v. Adeane 30. 31 — V. Campbell 97 Esdaile v. Stephenson 203 Estwick V. Conningsby 153 Ette, Ee 44, 283 Evans, Ex. p '. 153 — V. Coventry 99 — V. Lewis 72 Evelyn v. Lewis 157 Everard v. Warren 123 E. Everett v. Prythergh 151 Eves, Ee 81 Ewart V. Dryden 2.")2 — V. Gordon 97 — V. Snyd er 253 — V. Steven 279, 365 — v. Williams 123 Ewiug V. Lockhart 142 Exchange Bank v. Newell . . 1 67, 217, 22,3, 2.5, 278 — V. Springer 65 — V. Stiuson 46 Eyre v. Hughes Ill, 112, 255 P. Fahner v. Ean 212 Fairburn v. Pearson 154 Faithful, Ee 25, 27 Falconer, Ee 42, 282 Fall v. Elkins 370 Fallows V. Dillon 72 Falls V. Powell 90 Farewell v. Wallbridge 165 Farhall v. Farhail 279, 365 Parish v. Martyn 145 Farmer v. Dean 196 Farr \-. Sherifife 174 Farrell V. Cruickshank. . . .70, 147-8, 281 — V. Stokes 141, 263 — V. Wale 73 Farrow v. Austen ....'. 364 Faulds V. Harper 2.")2 Faulkner v. Daniel 58 Fawcett v. Burwell 108, 138 Fearnside v. Flint 102, 252 Felan v. McGill 149 Fell V. South 213 Feltham v. Clark 58 Fenny v. Priestman 284 Fenton v. Blackwood 2,54 — V. Lowther 163 Fen wick v. Fenwick 2S0, 322 Ferguson, Ee 81 — V. Fronteuac 176, 249 Field V. Titmuss 120 Fielder v. O'Hara . . 96, 98, 115, 116, 215 Finch V. Brown 1 00 — V. Prescott 98 Findley v. Pedan 118 Finkle V. Date 133 Fish V. Carnegie 229 Fisher v. Green 1(2 — V. Owen 60 Fisken v. Wride 205, 206 Fitten v. Dawson 280 Table of Cases. F. Fitzpatriok v. Fitzjjatrick 319 Fleming v. I'last 72 — V Palmer 254 Flemming, Re 80 Fletcher, Ke 31, 155 — \ . Rodden,{adda. ) 252 Fleury, Ee Fleury v. Fleury 375 Flockton V. Banning 96 Flower V. Hartcip 215 — V. Lloyd 178 Foley V. Griffith 12 FoUis, Re—Kilbourn v. Coulter 200 — V. Porter 207 Forbes v. Adarason 227 — V. Koss 96,98 Ford V. Steeples 260 — V. 'lynte 328 Fordham v. Clagett 137 Forrest v. Layeook 335 Forrester, Re — Messnier v. Forrester 9 — V. Thrasher 182 Forshavv, Re 26 Forsyth v. Drake 40 Foster v. Emmerson 108 — V. Foster ... 38, 42, 48, 282, 363 — V. Morden 133, 221 — V. Patterson 322 — V. Smith 256 Fowler v. Boulton 25, 63, 65 — V. Marshall 278 — V. Reynal 55, 72 Fox V. Bearblock 138, 157 Francis v. Francis 25, 28, 45 — V. St. fiermain 214 Francklyn v. Colhoun 164 Franklin, Re 213, 299 Fraser v. Bens 1 95 — V. Fraser 145 -- V. Locie 248. 253 -- V.Sutherland 52 Freeborn, Ke — Freeborn v. Carroll 40, 278, 365 Freed v. Oi-r 35 Freehold Building Society v. Choate 20) Freer v. Hesse 214 — V. i'imner 75 French v. Baron Ill Friswell v. King 25 Fritz V. Hobson 75, 76, 181 Fuller V. McLean. .89, 134, 136, 150, 226 Fuller V. Parnall 253 FuUerton v. Keely 234, 376 Furness.v. Booth 239 — V. Caterham E. W. Co 229 Furnival v. Brooke. . 314 Fussel V. Elwin 56 O. G. V. V. 260 Gachen v. Dew 54 Gage V. Canada Publishing Co 137 — V. MulhoUand 44 Gainer v. Doyle 329 Gairdner v. Gairdner 33 Galbraith v. Duncombe 41 Gale V. Herbeit 201, 207 Gallagher v. Gardiner 63 Gait V. Erie & Niagara E.W.Co. 153, 229 Games, Exp 28 Gamble v. Gummerson 213 Ganson v. Finch 18 Garlick v. Jackson 264 — V. Lawson 327 Garbutt v. Hewson 280, 363 Garrow v. McDonald 40. 54, 55 Gartside v. Silkstone D. C. & I. Co. 257 (Jaskell V. Gaskell 370 Gaskin v. Balls 154 Gates V. Smith 257 Gaunt V. Taylor 1 1.3 Ciawthorpe v. Gawthorpe 151 Geake v. Ross 287 Gee V. Gurney 75 Geldard v. Randall 196 Gemmell v. Burn 272 General Credit & Discount Co. v. Glegg 258, 259,272 German Mining Co., Re 99 Gethiug V. Keighley 123 Gibbs V. Haydon 70 Gibson v. Ingo 24 — V. Lovell 157 — V. Montfort 150 Gilbert v. Braithwait 282 — V. Endean 143, 181 Gilchrist, Re Bohn v. Fife 159 Gill V. Canada Fire & Marine Ins. Co 200 V. Gamble 25 Gillespie v. Alexander 120 Gilliat V. Gilliat 194 Gillrie, Re 323 Gilmour v. Myers 260 — V. RoH. 105, 107, 255 Gilroy v. Stephen 96 Girdlestone v. Gunn 229 Glass V. Freckleton 240, 242, 244 — V. Munsen 279, 365 Glazbrook v. Gillatt 145, 160 Gloag, Re 208 Glover v. Ellison 83, 125 Goddard v. Jeffreys 177 — V. Parr 60 Godfrey, Re — Godfrey v. Faulkner. . 104 — v. Watson Ill Table of Cases. Xlll G. •Godson V. Hall 74 Ooldsmith v. Goldsmith 99, 335 — V. Stonehewer 51 ■Goodall V. Burrows 229 Goodohap V. Roberts 287 Goodenow v. Farquhar 37 1 Goodfellow V. Eannie 280, 322 •Goodman v. Whitoomb 153 Gooderham v. DeQrassi 242 •Goodrich v. Marsh 53 Goodwin V. Fielding 207 — V. Gosnell 30 Gordon v. Eakins 101 — V. Fuller 70, 71 — V. Haruden 204, 208, 209 ■Gorham v. Gorham 39, 93, 131, 374 Gorman v. Gorman 292 Gough V. MoBride 212 Gould V. Burritt 115, 225 — V. Hamilton 204 'Gowland v. Garbiifct 229, 266 Grace v. Whitehead 256 Graham v. Davis 235 — V. Godson 1 34 — V. Robson 284, 364, 367 Grahame v. Anderson 137, 251 Grange v. Barber 239, 240 •Grainger v. Latham 210 •Grant v. Grant 44, 369 — V. Holland 23 — V. McDonald 280 Granville, Re 181 Gray v. Ball 214 — V. Bell 235, 326 — V. Coucher 214 — V. Hatch 167 Great Western K. W. Co. v. Jones.. 204 Greaves v. Tofield 257 Greaves, Re — Bray v. Tofield 279 Green v. Adams 273 — v. Hewer 255 — V. Jenkins 179 — v. Measures 48, 129 Greening v. Beckford 160 ' Greenshields v. Blackwood 264 Greig v. Somerville 140 •Gregg V. Arrott 105, 107 Griffiths V. Griffiths 22, 24, 27 Griggs V. Meyers 28 Grimsby v. Webster 160 •Grimshawe v. Parka 245 Grissell v. Peto 25 Groom v. Darlington 277 Grotev.Bing 81, 154 ' Grove v. Bastard 214 Groves v. Lane 39 B G. Guthrie v. Walrond 40 Gunimerson v. Banting,, 108 Gunn v. Doble 49, 201, 214 — v. McDonald 253 — V. Trust & Loan Co. :...!.., . 105 Gwynne v. Watney 149 Gzowski V. Beaty 232, 270 H. H., Re 30, 31 Haffey v. Haffey 293 Hagerman v. Smith , 253 Hall V. Austin 55 — V. Hall 123 — V. Jenkiuson 154 — V. Laver 27 — V. Morley 227, 269 Hallerau v. Moon 118, 279 Hamelyn v. White 329 Hamilton v. Hamilton 318 Hamilton v. Howard 242 — Township of v. Stevenson. 231 Hamp V. Robinson 40 Hancock v. Attorney-General 228 — V. Maulson 248 Hanman v. Riley 51, 52 Harbin v. Darby 112 Harding Re 299 — V. Glover . . , 153 Hardwick v. Wright 123 Hargrave v. Hargrave 6 Harlock v. Ashberry 252. 253 Harper v. Harper 315 Harrald, Re 29 Harris v. Meyers 161, 163, 246 Harrison, Re 256 — V. Bottrill 370 — V. Grier 238 — V. Jones 107, 110 — V. Joseph 203, 205, 212 — V. Livingston 215 — v. McGlashan.94, 103, 277, 362 — v. Patterson 104, 115, 368 Harrold v. Wallis 41, 151, 367 Hart V. McQuesten 249 Harter v. C!oleman 249 Hartley v. Burton 262 Hartrick v. Quigley 285 Harvey v. Renon 174 — v. Wilde 35 Hastie v. Hastie 76 Hatch V. Searles 121, 125 Hatt V. Park 247 Hawkins, Re 80 XIV Tab].e of Casks. H. Hawkins v. Gathercole 157 — V. Jarvis 91, 246 V. Mahafify 328 Hawkes v. Hawkes 293 Hawii V. Gashon Hi Hayes V. Hayes.. 113, 115, 1.33, 135, 1.36, 137, 1.39 — V. Shier 19 Haymes v. Cooper 28, 160 Hay ward v. Pile 34 Heathoote v. Hulme 96, 97 Heighington v. Grant 96 Hele V. Lord Bexley 35 Henderson, Ee Ill, 280 — V. Cowan 263 — V. Dickson 250 — V. Eason 371 — V. Harper 142 — V. Mclver 112 Banning v. MoDougall 205 Henricks, Re 323 Henry v. Sharp 279, 365 Hepburn v. Patton 152 Heron v. Moffatt 112, 115 Heslop V. Metoalf 26, 89 Heward v. Eidout 192, 193 — V. Wolfenden 177 Hewitson v. Todhunter 33 Hewitt V. JSauson 190 J-leywood v. Sievwriglit 277 Hicks V. Hicks 151 — V. May 291 Higgins, Re 212 Hiles V. Moore 15), 152 Hill, Re 30, 31, 297, 300, 306 — \ . Bonner 35 — V. Forsyth 259 — V. King 99 Hilliard v. Campbell 265 — V. Fulford 42 Hills V. McRae 55 Hilliard v. Thurstin 7^ Hilton V. Woods 240 Hindmarsh v. Southgate 42 Hoare, Re 162 Hobler, Re 146 Hobson V. Sherwood 28 Hodge V. Attorney-General 228, 264 Hodgson V. Paxton 67 Hodjiinson -v. French 274 Hoghtou V. Hogliton 72 Holcumb V. Leach 258, 264 Holford V. Yate 260, 266 Holland v. King 215 Hood V. Cooper 6 Hoole V.Roberts 160 H. Hooper v. Hooper 294 Hope V. Liddell 25 Hopkins v. Hopkins 369 Hopper V. Harrison .... 38, 47, 128, 369 Horlock V. Smith 100-1 Horner v. \\'illiams 20/ Horsley v. Fawcett 45 Horseman v. Coulsou 19 Hosking V. Terry 130, 180 Hoskins v. Johnston 196 Hostrawser v. Robinson 45 Houston, Re — Houston v. Houston, 251, .370 Hovey V. Ferguson 108 Howard, Re 142 — V. Chaffers 72 — V. Easton 44 — V. Macara 260, 266 Howe V. Howe 292 Howell V. Howell. . . . 105, 106, 204, 250 Hewlett V. Abraham 314 Howes V. Bamford 141 — V. Dominion Savings Co .... 254 Howlaud, Re 13 Hughes, Ex p 109 — ». Hughes 34, 35, 365 — V. Jones 181 — V. Rees 81, 85, 341 — V. Williams 105 Huguenin v. Baseley 154 Hulkes V. Day 159, 160 H ull V. Falconer 247 Hume V. Bentley 192, 193, 213 — V. Pooock 213 Humphreys v. Humphreys 45 Hunter v. ilonntjoy 145 Huntingdon v. Van Brocklin. . . . 177, 257 Hurd v. Robertson 215 Husband, Re 142 Hutchinson v. Edmison 284 — V. Sargent 280, 363 Hutoheson v. Smith 99 Hyde v. Barton 268 — V. Greenhill 161, 164 Hyman v. Roots 335 I. Idington, Re 375 Imperial Loan & Investment Co. v. Boulton 274 Incorporated Society v. Richards . . 101 Inglis V. Beatty 95, 97 — V. Gilchrist 248, 252, 256 — V. Wellington Hotel Co 12a' Table of Cases. XV I. Inman v. .Wearing 239 Irwin, Re 323 — V. Buck 279 Irving Vi Boyd 161, 162 — V. Munn 274 J. J. C. M. & J. M., Re 30 Jack, Re— Jack v. Jack 44, 283 Jackes, Re 31S Jackson, Re 256 — V. Gardiner 246 — V. Hammond 244 — V. Harriman 86 — V. Jackson 161 — V. J essup 207, 208 — V. Kassel 142 — V. Matthews 91, 286, 367 — V. Turnley 326 — V. Yeomnns 227,269 Jacob V. Earl of SuSblk 266 James, Ex parte 109 — V. Freeland 201 V. James 228 Jardine v. Hope 99 — V. Wood 36, 53 Jarvis v. White 329 Jefferys v. Jefferys 42 — V. Smith 181 Jellett V. Anderson 135, 159 Jenkins v. Bryant 23 V. Martin 370 Jenner v. Jenner 327 Jennings v. Jordan 50, 51, 52 Jervis v. Wolferstan 42 Jesse V. Bennett 43, 55 Job V. Job 103 Johnson, Re 151 — V. Ashbridge 145, 265 — V. Marriott 25 — V. Neezer 239 — T. School Trustees 7 — Re — Shearman v. Robinson 270 Johnston, Re — Johnston v. Hogg . . 280, 363, 364 — V. Johnston 265 — V. Reid 248 Joint Discount Co. v. Brown 33 Joliffe V. Baker 205, 206, 207 Jones V. Bank of Upper Canada 238 — V. Beck 259 — v. Clark 201 — V. Clifford 205, 213 — V. Eoxall 96 Jones V. Frost 151 — V. Godrich 151 — V. Huntingdon 60 ' — V. James 43 — V. Jones 151 — V. Pugh 152 — V. Rimmer 192, 206 Jordan v. South Eastern R. W. Co. . 108 Juson V. Gardiner 128 K. Kahn v. Redford 63- Keays, Re 30 Keefe v. Ward ... .67, 79, 118, 148, 167 Keene v. Riley 151, 152 Keim V. Keagley 173 Keith, Re . . '. 81 Kellaway v. Johnston 54 Kellett V. Kelly 28 Kelly, Re 80' Kelly V. Ardell .• 39 Keller v. Taohe 319 Kendrew v. Shewan 207 Kennedy v. Brown 175, 336 — V. Lee 154 — V. Pingle 114, 115, 367 Kenney v. Browne 1 99 Kensington v. Bouverie 105 Kerby v. Kerby 110, 250 Kernick v. Kernick 144 Kerr v. Beebe 228, 270 — V. Kinsey 256- — V. Murray 52 Kettlewell v. Watson 257 Kidd V. Cheyne 48^ Kiffin V. Kiffin 150- Kilborn v. Workman 108, 109 Kilbourn v. Coulter 200 Kincaid v. Kincaid 205, 207 King V. Anderson 109' — V. Connor. . . .80, 140, 258, 259, 264 — V. Freeman 236 — V. Keating 50 — V. King 151 Kingsford v. Poile 264 Kino V. Rudkin 38 Kimpton v. Eve 30' Kirkchoffer v. Stafford 263 Kirkpatrick v. Howell 236, 378 — V. Lyster Ill Kitchen v. Murray 212' Kline v. Kline. .8, 116, 128, 129, 225, 237, 245, 373- Kuapp V. Cameron 272. XVI Table of Cases. K. Knapp V. Bower 251 KnatchbuU v. Fearnhead 42 Knight, Re 30 — V. Duplessis 1 51 Knott V. Cottee 96, 190 Knottinger v. Barber 270 Koater v. Holden 215 Kronsbien v. Gage 213 L. &M.,Re 340 La Grange v. McAndrew 57 Laing v. Avery 295 Lake v. Mcintosh 235 Lalor V. Lalor 370 Lamb V. Danby 329 Lambert v. Hutchinson 58 Lambier v. Lambier 365, 372 JLamont v. Lamont 107 Land Credit Go. of Ireland, Re .... 41 Landman v. Crooks 97 Lane, Re 324 — V. Young . . . -. 40 Langdale v. Briggs 327 Langle v. Fetterly 28 Langstaffe v. Fen wick Ill Lanham v. Pirie 37 Laun V. Church 27 Lannin v. Jermyu 45 Lapp V. Lapp 181, 341 Larkin v. Armstrong. . 115, 134, 135, 149 Lashley v. Hogg 120 Laslett V. Cli£fe 229 Latch V. Latch 38, 40, 45, 278 Latimer v. Aylesbury & B. R. W. Co 152 Latter v. Dashwood 100 Lavin v. O'Neill 131, 224, 291 Lawrason v. Buckley 216 — V. Fitzgerald. . . 232, 235, 3.34 Lawrence v. Humphries 52, 245 — V. Richmond 8, 9 Lawrie v. Rathburn 257 Laws, Re — Laws v. Laws 118, 279 Laycock, Re — McGillivray v. Johnson 196 Lazier v. Ranney 275 Lechmere v. Brasier 214 Ledgerwood v. Ledgerwood 94, 103, 277 362 Lee V. S'tlirrock' .' .' . .' . ." . .' . .' . . .... 48,' 129 Legg V. Mathieson 153 Leggott V. Metropolitan R. W. Co. . 106 Leith V. Irvine Ill Leonard v. Clydesdale 35 Leslie v. Preston 213 Letts V. Hutchins 272 Lewis, Re 27 — V. Rumney 279 Ley V. Brown 26 Liddell v. Deacon 51 Life Assurance Co. v. Siddal 97 Life Association of Scotland v. Walker 115, 368 Ling V. Smith 39 Liacombe v. Gross 203 Little V. Hawkins 240 Little v. Kingswood & Parkfield Colliery Co 25 Livingstone v. Western Assurance Co 254 Livesey v. Harding 160 Lloyd V. Cheetham 163 — V. Dimmack 54, 55, 56 — V. Jones 100, 107 — V. Smith 55 — V. Tiohborne 280 Lookett V. Gary 26 Lockhart v. Hardy 264, 266 Lodge V. Prichard 123 London & Birmingham R. W. Co., Re 328 London & Canadian Loan & Agency Co. V. Everett 235 London & Canadian Loan & Agency Co. V. Meritt 162, 166 London & Canadian Loan & Agency Co. V. Morrison 232, 269 London & Canadian Loan & Agency Co. V. Pulford 232, 269 London Gas Co. v. Spottiswoode . ... 56 — Loan Co. v. Smyth 227 Long V. Long 165, 239 — V. Storie 34 Lord, Re Lord v. Lord 83, 122, 125 — V. Wormleighton 27 Lorimer v. Lorimer 106 Ijoring V. Loring 99 Loughead v. Stubbs 207 Loveday v Chapman 258 Loveless v. Clarke 1 14, 367 Lovell V. Gibson 35 Lo vett, Re Ambler v. Lindsay 40 Lowry v. Fulton 39 Lucas V. Peacock 159 Luke V. South Kensington 58 — V. Tonkin 103 Lund V. Blanshard 43 Lyman v. Kirkpatrick 263 Lyons, Re 299, 307 Tablk. of Ca&es. M. Maoara v. Gwynne 10, Sfi, 242 Machell v. Campbell 232 Magnay v. Davidson 34 Mair v. Kerr 235 Maitland v. Globe Printing Co. _. . . 57 Malloch V. Hunkett 167 Mallory v. Mallory 293 Manby v. Mauby 279 Mann v. Perry 66, 167 Manning v. Birely 149 Manaon v. Baillie 113 — V. Thacker 207 Man V. Littlewood 151 Marsli V. Ma^h 44, 283 Marshall, Re— Fowler V. Marshall. 39, 278 — V. Shrewsbury 239, 276 Martin, Re 30 — V. Boulanger 257 — V. London , Chatham & Dover R. W. Co 229 — T. McGharles 142 — V. Miles 252 Martindale v. Clarkson 268 Martinson v. Clowes 195 Martyn, Re 29 Mason v. Seney , 8, 130, 178, 180, 274 Mathers v. Helliwell 227, 228 — V. Short 67 Mathias v. Yetts 192 Mavety v. Montgomery 274 May V. Selby 45 Maybery v. Brooking 49, 58 Mayer v. Murray 103 Mayne v. Hawkey 26 Maxwell v. Maxwell 294 Meacham v. Cooper 83, 122 — V. Draper 41,151 Meighen v. Buell 113 Main, Re 80 Mellish V. Williams 179 Mellor V. Swire -. . . .283, 365 Mendes v. Guedalla 33 Meneilly v. McKenzie 243 Merchants' Bank v. Grant 181 •' " V. Sparks 55 " Express Co. v. Morton. 143 Meriam v. Cronk 105, 255 Merkely v. Casselman 168 Merrewether v. Mellish 26 Merritt v. Stephenson 248 Messenger, Re 25 Metcalf, Re 120 " V. Campion 105 Re— Hicks v. May 291 Metropolitan Board of Works v. Sant 327 M. Meyers v. Harrison 228' • " V. Meyers 161, 163, 164, 284 ' ' V. Robertson 23 Meymott v. Meymott 100 Micheltree v. Irwin 202, 207, 208 Michie v. Reynolds 120- Middlemas v. Wilson 60- Middleton v. Dodswell 151 Mildmay v. Lord Methuen 328 — V. Quicke 174 Miles V. Cameron 265- Mill V. Hill 107, 108 Millar v. Craig 99- Miller, Re 80 — V. Brown 149, 245, 248 — V. Miller 149- — v. McNaughton 89 — V. Ostrander 52 — V. Vickers 55 Mills v. Choate 275 — V. Cottle 2,9,365- — V. Dixon 135, 139, 140, 259 — v. Jennings 51, 52 — V. Northern R. W. Co. of Buenos Ayres Co 152 Miltown V. Stuart 145- Mirehouse v. Barnett 75 Mitchell, Re 146 Mitchell V. Draper 163 — V. Mitchell .134, 136, 137, 200, 335 — V. Strathy , 90, 226, 264 Moffatt v. Bank of Upper Canada . . 25S — V. Hyde 8, 181 — V. Prentice 57, 63, 70, 148 — v. Ruddle 80' — V. ■White 275 Moir V. Mudie 26 Molesworth v. Robbins 25 Malloy V. Kilby 63 Monaghan v. Dobbin 147, 218, 325 Mouck V. Stuart 215- Montgomery v. Calland 101 — V. Douglas 34 — V. Shortis 128, 129, 136, 238, 245 Mono, Re 295 Montreal Bank v. Baker 257 Moon V. Clarke 108 Mooney v. Prevost 215 Moodie v. Leslie 103, 131, 280, 363 Moody V. Tyrrell 26S- Moore, Re 320' — V. Frowd 112 — V. Hobson 240 — V. Merritt 272- XVlll Table of Cases. M. Moore v. Morris 34 — V. Riddell 253 — V. Shinners 216 Mordaunt v. Beuwell 319 Morgan v. Holland 28, 29 Morin v. Wilkinson 208 Morison v. Morison 113 Morley v. Matthews 109, 133, 133, 139, 259 Morell V. Morrison 63 Morrell v. Ward 256 Morris v. Llanelly 328 — V. Richards 220 Morrison, Ex p 28 — V. Robinson 53, 138, 248 Morse, Ee 296 Morshead v. Reynolds 121 Mortlock V. BuUer 207 Moseley, Re 25 — V. Ward 96 Moss, Re 24, 27 Mountain v. Porter, . , . 135, 139, 140, 259 Mountford, Ex p 150 Mousley v. Carr 96 Muchall V. Banks 240 Miiir V. Munro 243 Mulholland, Re 295 — V. Hamilton 120 — V. Merriam 34 MuUins V, Howell 181 Mimdy V. Earl Howe 321 Muiisen v. Hauss 229, 264, 266 Murdoch, Re 81 Murgatroyd v. Caldwell 48 Muruey v. Courtney 80 Mnrphy v. Boulton 142 — V. Lamphier 323 ■ - V. Murphy 326 Murray, Re 279 — V. Palmer 106 Mc. Macara v. G-wynne 16, 86, 242 Macintyre v. Comiell 55 Macleod v. Buchanan 160 Maodonald v. Richardson 96 McAllister v. Bishop of Manchester . 63 McAlpine v. Young 192, 194, 197 McAndrew v. Laflamme 280, 363 McArthur v. Dudgeon 83, 122, 125 McCall V. Canada Farmers' Mutual Ins. Co 152, 153 MoCall V. Faithorne 207 McCardle v. Moore 368 Mc. McCarear v. McKinnon 113, 130, 137, 351 McCarthy v. Arbuckle 33, 108 — V. Goold 162, 163 McCaughey & Walsh, Re 184 McCleau v. Kennard 56 McClelan v. Jacob 229 McClennaghan v. Buchanan 64 MoColl, Re— McCoU v. McCoU 375 McConnell, Re 93 V. McConnell 86 McCormick v. McCormick . .91, 246, 263 MoCuUoch V. MoCuUoch 293 McDermid v. McDermid . . . .63, 202, 208 McDonald, Re 295, 318, 319 — Re— Cameron v. McDonald 277 — V. Garrett 208 — V. Gordon 192, 212 — V. Hine 262 — V. McDonald 39 — V. McKinnon 117,279 — V. Rodger 129, 136, 245 — V. Snitsinger 215 — V. Wright 137, 177, 257 McDonell v. West 250 McDougall V. Campbell 228, 239 — V. McDougall 370 McDowell V. McDowell 161, 162 McDowell V. Phippen 203 McEvoy V. Glune 35, 41 McEwen v. Boulton 143 Mcllroy v. Hall 142 — V. Hawke 245, 246 Mclntyre v. Canada Co 124 — V. Kingsley 314 McGannon v. Clarke 15, 137 MoGi'U V. Courtice . . 225, 284, 364 McGillicuddy v. Griffin 335 McGregor v. Gaulin 253 — V. McGregor 108, 110 McHenry v. Lewis 282 McKay v. MoFarlane 272 — V. McKay 117, 279 M cKeuzie v. Wiggins 274 MoKerchie v. Montgomery 148 McKinley v. Beadle 279 McKinnon v. Anderson Ill, 276 McLaren v. Fraser 108, 110, 240, 250 — V. Miller 272 McLean v. Cross 15, 85 — V.Grant 176,201,214 — V. Great Western R. W. Co 56 — V. Pinkerton 220 McLennan v. Cheguin 205, 207 — V. Helps 117 — V. Heward.. 94, 97,98,113,114 Table of Cases. XIX Mc McLeod V. Millar 334 — V. Phelps 154 McMahon v. Bui-chell 75 WoMaims v. Little 210 McMartin v. Dartnell 145 .McMaster v. Hector 112, iSO, 267 McMillan v. McMillan 98, 114 Ee— Patterson v.McMillan 369 McMorris, Re 216 McMurray v. (irank Trunk E. \V. Co ,..63 66, 147, 179 McNamara v. Jones 112 McNab V. Mclnuis 86 — , V. Peer 29.5 McNeill V. McGregor 68 McPhatter v. Blue 29 McQueen v. McQueen 137 — Ee McQueen v. McMillan 322, 323 McVie V, Hope 28 N. Nash V. Glover 135, 170 — V. McKay 42 National Provincial Bank of England V. Harle 45 — ■ V. Thomas 152 Neale v. Withrow 70 Neesom v. Glarkson 106, 108 Nelles v. Vandyke 8, 225, 237, 373 Nelson, Ex p. Ee Hoare 162. 166 — V. Booth 100 — V Nelson 164, 165 Nevills V. Nevills 108 Newbiggen-by-the-Sea Gas Co. v. Armstrong 2, 57 J^'ewman, Re 80 — V. Hook 200 — V. Selfe 230 Newton, Re 142 — V. Metropolitan R. W. Co. 45 — V. Sherry 41 — V. Thomson 19 — V. Thompson 19 JSficholl V. Elliott 63 Nichoils V. McDonald 133 Noble V. Brett 41, 42 Nolan, Re 340 — V. Nolan 292, 293 Norris v Bell , 285 — V. Meadows 227,259,269 North London R. W. Co. v. Great Northern R. W. Co 152, 154 North Wheal Exmouth Mining Co.. Ee 147, 148 N. North of Scotland Mortgage Co. v. Beard 227 North of Scotland Mortgage Co. v. German 249 Northumberland v. Todd 142 Norwich v. Norfolk Building Society 23 Noyes v. Crawley 102 Nudell V. Elliott. . . .' 277 Nurse v. Danford 57 0. O'Connell v. Charles 52 O'Connor v. Beatty 208 — V. Woodward 194, 197 Odell V. Doty 229 O'Donohoe v. Hembroff 130, 182 Ogden V. Battams 123 O'Grady v. McCaffrey 109, 111 O'Keefe v. Taylor 202, 208 Oliver V. (iourt 109 Omnium v. Ellis 19 Ontario Bank v. Fisher 19 "V. Sirr,.202, 203, 208, 209 Orford v. Bay ley 228, 23§ Osborne v. Farmers' & M. B. Soc'y 206, 207 Osborne v. Oshornc 215 Osmaston v. Association of Land Fi- nanciers 144 Otter v. Lord Vaux 259, 265 Otway v. Otway 293 Outram v. U'yckhoff 35, 40, 278, 365 Overington v. Ward 40, 41, 151 Owen V. Delamere 279 Owens V. Dickinson 120 ' ' Re — Jones v. Owens 104 Paine v. Chapman 35, 256 Palmer, Ex p 308 Palmer v. Mitchell 96 — V. Postle 169 Pare v. Clegg 52 Parfitt V. Jepson 194 Parker v. Morrell 75 -- V.Parker 118,279 — V. Watkins Ill Parkin v. Seddons 151 Parker v. Vine Grower's Association 272 Parker v. Watt 215 Parkinson v. Hanbury, .101, 104,105, 106 Parnell v. Kingston 37 XX TaBLK of CA8ES. p. Parr v. Lovegrove 210 Parsill V. Kennedy 363 Parsons v. Bank of Montreal 239 ■ — V. Groome 159 — V. Hayward 100 Pascoe V. Swan 107 Patch V. Ward 260, 26o — V. Wild 101 Paterson v. Holland 128, 238 — V. Lailey 98 Patey v. Flint 236 Paton, Be 80 Patterson v. Robb 202, 204, 208 — V. Scott 89, 118, 130, 283 Patterson, Re — Catton v. Patterson . 367 Patterson v. McMillan 369 Patton, Be 80 Paul V. Johnson 100, 101, 1 10, 250 Pawson V. Hall 142 Paxton V. Dry den .158, 167 — V . Jones 63 Payne v. Parker 51 Peacock v. Peacock 154 Peak V. Ledger 45 Pearce v. Morris 251, 262 Pearman v. Hyland 227, 269 Pearse v. Eadclilfe 364 Pearson v. Campbell 239 — V. Wilcox 141 Pease v. Fletcher 1 52 Peck V. Buck 205 — V. Peck 292 Peers v. Allen 242 — V. Sneyd 215 Peillon V. Brooking 174 Pegley V. Woods 108 Pelham v. Newcastle 162, 164, 217 Pell \. Northampton & B. J. K. W. Co 229 Pelly V. Wathen 25 Pelten, Ee 299, 300 Penn v. Lockwood 248, 255 Penner v. Cannifif 238 Penny v. Penny 55 — V. Watts 39 Penrioe v. Williams 75 Peoples Loan Go. v. Bacon. .202, 203, 204. 205 Pepper v. Pepper 8 Peppitt, Re 33 Perkins v. Vandei'lip 248 Perriu v. Davis 91, 246 — V. Perrin .". . .283, 365 Perrj' v. Knott 54 Peterson v. Peterson 292 Peto V. Welland R. W. Co .... 153, 229 P. Pettee, Re— MoKinley v. Beadle.279, 365- Phelan, Re 318- Phillips V. Conger 195- V. Prentice 142 — V. Sylvester 105- Pierce v. Brady 53 — V. Canavan 227, 259 Piers V. Piers 192 Pierson v. Barclay 55 Pike V. Robinson 145, 149 Pine V. Harris 99 Pipe V. Shafer 255, 264 Plant V. Stone 28 Piatt V. Ashbridge 265- — V. Blizzard 215 Plumer v, Gregory 54 Poeock V. Allan 94, 103 Pollock V. Perry 248- Ponton, Re 137 Poole, Re 31 — V. Pembrey 141, 142 — V. Poole 149' Popple V. Sylvester 121, 251 Porter, Ex parte 60' — V. Lopes 154 Portman v. Paul 238- — - V. Smith 264 Potts V. Warwick &; B. C. Co 153 Powers V. Merriman 263 Frees v. Coke 263, 264 Prentiss v. Brennan 153, 217 Prescott V. Tyler 228 Price V. Bailey 70, 117 — V. Webb 18 Prime, Re 283, 365- Prince v. Howard 6 — of Wales Co. V. Palmer 38 Pringle v. Gloag 29' — V. McCan 215 — V. McDonald 171 Proctor V. Grant 63, 67 Provincial Ins. Co. v. Reesor 254 Pryce v. Bury 228- Pugli V. Heath 252 Puunett, Re 256 Purdy V, Parks 242 Pyke, Ex parte 31 Q. Quantz v. Smelzer 37 Qua.'man v. Williams 159' Quarrel v. Beckford 105, 107, 108 Quartz Mining Co., Re 149 Queen v. Smith 136, 138, SiO- Tablic of Cases. XXI E. Eadclyffe v. Duffy 263 Radcliffe Re— Pearse v. Eadcliffe . . 364 Radenhurst v. Reynolds 181 Eae V. Geddes. . , . 130, 203, 208, 209, 319 — V. Shaw 263 Ragett, Re— Ex p. Williama 249 Ramsay v. McDonald. . 190, 194, 196, 201 Randfield v. Eandfield 157 Ranking, Ke 34 Raphall v. Boehm 96 Rathburn f. Hughes 24 Rattray v. George 60 Rawlings v. Lambert 40, 41 Rawlins v. McMahon 36 Raymond v. Tapson. . 147, 200, 206, 32.') Read v . Prest 50 — V. Smith 259, 265 Real & Personal Advance Co. v. Mc- Carthy 154 Radford V. Todd 170 Redfern v. Sowerby 27 Redgrave v. Hurd 192, 205, 206 Redman v. Brownscombe 18 Rees V. Engleback 43 — Re Rees v. George 47, 48 Rees V. Metropolitan Board of Works 249 — V. Rees 293 Reesor v. Ella 26 Reeve v. Attorney General 228 — V. Reeve 48, 49 Reeves v. Neville 150 Regina v. Chapman 194, 197 — V. Guthrie 212 Reid V. Stephens 174 — V. Wilson 250 Reiffenstein v. Hooper 45 Ren v. Anthony 314, 357 Republic of Liberia v. Imperial Bank 66 — v. Boy 66 — Peru V. Euzo 72 Reynolds v. Coppin 42, 282, 363 Rhodes v. Rhodes 100 Rice v. George 107, 255, 371 Richards v. Platel 25 — V. Scarborough Market Co 13, 23 Ricker v. Ricker 196, 200 Ridley V. Sexton 99 Rigney v. Puller 230 Rishton v. Grissell 99 Ritchie, Re Sewery v. Ritchie 130 Rivet V. Desourdi 107, 112. 371 Robbing, Re 118, 279 Roberts v. Durie 200 — - V. Evans 58 — V. Ebcrhardt 153 — Re— Goodchapv. Roberts.. 287 C I E. Robertson, Ee — Eobertson v. Rob- ertson 43, 126, 171, 173, 198, 202, 290, 328 Robinet v. Pickering Ill Robins v. Carson 147 — V. Goldingham 26, 27, 28 Eobinson, Re 8 — V. Byers 245 — V. Ciunming 95, 123 — V. Dobson 239 — V. Pett 112, 114 — V. Pickering 1 52 — V. Ridley 108 — V. Ptobinson 96 — V Whitcombe 90, 91, 246, 367 Eobison v. Killey 113 Eobson v. Argue 127, 243, 265 — v. Wride 178, 180 Eocke V. Hart 96 Eodgers v. Eodgers 38, 199, 200 Eody V. Eody 370 Roe V. Braden 214 — V. Stanton 246 Rogers v. Jones 34 — V. Lake 215 — V. Lewis 239, 240 — v, Maule 228 — V. Rogers 50 Rolph V. U. C. Building Society 38,47,128 Romanes v. Herns 110, 135. 139 Rooke V. Lord Kingsdown 326 Rose V. Hiokey 118 — V. Sharrod 113 Rosebatoh v. Parry 115, 126, LSO Rosenberg v. Cooke 198, 202 Ross, Re 80, 118, 256, 279, 284 — V. Hamilton 256 — V. McLay 29 — V. Perranlt .... 134, 137, 138, 253 — V. Eobertson 168 — V. Steele 216 — V. Stevenson 134, 247, 248 — V. Vader 181, 237 Rowe V. Jarvis 24.? — V. Wert 116, 135 — V. Wood 99, 106, 152, 153 Eowley V. Eidley le.'f Eowsell V. Morris . .35, 39, 278, 285, 365 Eumble v. Moore 238 Rumohr v. Marx . . . .217, 223, 278, .332 Rump V. Greenhill 277 Eumsey v. Thompson 239, 242 Eundell, Ee 297, 299 Rush, Re 163 Russel v. Brucken 135, 341 Russell, Re — Burnett v. Allen .... 1(J5 Table of Gases. R. Bussell V. Ddvy 254 — V. East Anglian R. W. Co 157 — V. Eraser 212 — V. Robertson 112, 254 — V. Romanes 49, 110 — V. Russell 257 Royal Canadian Bank v. Dennis .... 199 — — — V. Cumner . . 70 Ryan v. Fish 225 Ryekman v. Canada Life Ass. Co . . 53 Rykert v. St. .John 121 Re 30 St. Aubyn v. Smart 54, 184 St. John V. Rykert 251 St. Michael's College v. Merrick. .76, 181 St. Paul's, Dean of, Ex p 77 Sadlier v. Smith 144 — V. Doyle 178 — V. Smith 60, 64, 144 Sale V. Kitson 51, 52 Saltmarsh v. Barrett 96 Sanders v. Malsburg 212 Sanderson v. luce 243 — V. Walker 146 Sandon v. Hooper 1 10 .Saunders v. Siunders ] 30 Sargant v. Read 154, 155 Savage, Re 181 Scane v. Duekett 54 Scarlett v. Canada Co 213 Schofield V. Ingham 100 Scholefield \. Lockwood 112 Scott, Re 81 — — Re Hetherington v. Stevens . . 335 — V. Burnham 148, 335 — V. Black 274 — V. Fleming 54 — V. Hunter 108 — V. Livesey 132 — V. McDonnell 262 — V. McKeown 259 — V. Reikie 215 Sculthorpe v. Burn 94, 138 Sear v. Webb .... 145 Sears v. Lawson 240 Seath V. McElroy 335 Seeord v. Terryberry 177 Seidler v. Sheppard 55, 230 Selby V. Pomfret 248 Sewery v. Ritchie 130 Sharp V. Lush 48 Sharpley's Trusts, Re 38 Shaver v. Gray 41 Shaw, Re 88, 89, 98, 109 — V. Crawford 49, 201, 214 — V. Freedy 282 — V. Hardingham 52 — V. Hudson 159 — V. Liddell 52 — V. Neale 29 — T- Wright 163 Shearman v. Robinson 279 Sheddeu v. Patrick 178 Sheehan v. Great Eastern R. W. Co. 58 Shepherd v. Jones 110 Sherboneau v. JefiFs 214 Sherwin v. Shakspear 105 Sherwood, Re 112 Sherwood v. Beveridge 75 Sherwood v. Campbell 190 Shipman, Re — Wallace v. Shipman 44, 283 Shipton V. Rawlins 55 Shipway v. Ball 345 Sidney v. Ranger 195, 196 Sievwright v. Leys 94, 95, 115, 368 Sillwell V. Wilkius 154 Simmers v. Erb 8, 204, 373 Simmonds v. Great Eastern R. W. Co 8,24, 74 Simons v. Milman 39, 45 Simonton v. Graham 251, 287 Simpson, Ex p 60 Simpson v. Denuy 53 — v. Home 115,280,365 — V , Hutchison 158 — V. Ott iwa 133 — V. Prescott & Ottawa R. W. Co 155 — V. vSimpson 216 Sims V. Ridge .S8 Sivewright v. Sivewright 63 Skae V. Chapman 109 Skelly V. SkeUy 334 Skinner v. Ainsworth 207 Slade, Re— Slade v. Hulme 162 Slater v. Slater 41, 280, 363 — V. Stoddard 24 Sleight V. Lawson 94, 103, 123 Small V. Ecoles 97 Smith, Re 24, 81, 319 Smith V. Bonnisteel 109 — V. Crooks 131 — V. Doan 198, 215 — V. Gibson 108, 109 — V. Good 194 — V. Harwood 146 — V. Henderson 48 — V. Hurst 152 — V. McDonald 175 Table of Cases. XXlll Smith V. Roe 95, 98, 364 — V. Seaton 99 — V.Smith 97,292 — V. Thompson 28 Sneizely v. Thorn 207 Solicitor, Re (27 Gr. 77) 30 — (19 C. L. J. 234) 31 Sommerville v. Joyce 167 Soules V. Soules 292, 293 South Essex Eq. Investment & Ad- vance Co., He 26 ■Sovereign V. Sovereign.. 98, 130, 277, 362 Sparrow v. Champagne 243 Speight V. Gaunt 104 Spenoe v. Hector 121 Spooner v. Payne 163 Springer v. Clarke 365 Stains v. Banks 112, 255 Stainton v. The Carron Co 43 Stammers v. O'Donohoe . . 122, 192, 201, 206 Stanley v. Grundy 107, 256 Stannard, Re 81, 322 Stansiield v. Hobson 51, 52 Stapylton v. Scott 214 Stedman v. Webb 25 Steel V. Lineberger 35 — V. Dickson 239 Steinhofif \r. Brown 152, 240 Stennett v. Aruyn 25, 275 •Stephens v. DeMedina 215 — V. Lord Newborough 75 — V. Simpson 52, 56, 245 Stephenson v. Bain 200, 206 V. NichoUs 88 Sterling, Ex parte 25 — V. Campbell 128, 244, 247 — V. Riley 248 -Stevens v. Cook 99 Stevenson v. Hodder 280 Stewart, Re 30 — V. Fletcher 115,364,367 — V. Hunter 41,129,284 — Re — Stewart v. Stewart. . . . 290 •Stinson v. Martin 137 — v. Pennock 254 — V. Stinson 40,114 Stockton Iron Co., Re 256 Stoddart v. Stoddart 117, 279 Stokes v. City Offices 328 Story V. Duniop 177 — V. Fry 35 Stovel V. Coles 147 Strachan v. Devlin 273 — Murney 246,273 Straight, Ex p 181 S. Stratford v. G. W. R. Co 63, 70 Strathy v. Crooks 122 Stratton v. Murphy 109 Street v. Dolan 238 — V. Hallett 190, 202, 208 — V. O'Reiiley 260 Strickland v. Symons 279 Strong V. Moore 49 Stuart, Re 80 Stump V. Bradley 39 Sugden v. Lord St. Leonards 117, 279 Sullivan v. Harty 277 — V. SulHvan 284,364 Sutherland v. Dickson 235 — V. Rogers 90, 118, 148 Sutton V. Sharpe 96 — V. Sutton 102, 227, 252, 269 Swainson v. Bartley 90 Swallow v. Binns , 34, 37, 38 Swayne v. Swayne 160 Sweetnam v. Sweetnam 212 Swetuam v. Swetnam 44, 283 Swift V. Minter 230 Swire, Re-Mellor v. Swire ....283, 365 Switzer v. Boulton 72 — V. McMillan 319, 323 Sykes v. Brockville & 0. R. W. Co 56 Symons, Re — Luke v. Tonkin 102 Sympsou v. Prothero 27 Talbot V. Miunett 214 — V. Earl of Radnor 43 Tardrew v. Howell 285 Farratt v. Lloyd 33 Tatham v. Parker 161 Taylor v. Craven 133, 226 — V. Cuthbert 263 — V. Eckersley 154, 157 — V. Jones 220 — V. Hargrave 105, 250, 315 — V. Stead 245 — V. Taylor 292 — V. Walker 232 — ' V. Ward 242 Teasdale v. Sanderson 107 Tebbs V. Carpenter 96, 364 Teeter v. St. John 112, 138, 228, 230, 249, 250, 251 Teevan v. Smith 261 Tempest v. Caraoys 40 — V. Ord 109 Templeman, Re 19 Tennant v. Trenchard 6, 196 Table of Cases. Thayer v. Street 215 Thomas v. Brown 198, 202 — V. Buxton 206 — V. Cross 160 — V. Finlayson 23 — V. McCrae 199 — V. Palin 160, 166 — V. Torrance 50, 158 Thompson v. Badgley 226 — Re — Biggar v. Dickson . . 203 — V. Dodd 50 — v.Freeman 113, 114, 341 — V. Hudson 100, 253 — V. McCaffrey 319 — V. Macaulay 229, 232 — V. .\lilliken 196, 213 — V. Thompson 292, 293 Thomson, Re 20 — V. Luke 133, 137 Thornkyke v. Hunt 30 Thorneycroft v. Crockett 100 Thorp, Ex p 60 Thorpe v. Freer 215 Tice V. Myers 238 Tiel, Re 181 — V. Barlow 8 Tiffany v. Tiffany 45, 284 - - V. Thompson 4.3, 284 Tillett V. Pearson 152 Tilt V. Knapp 202, 203 Tobin, Re— Cook v. Tohin 34 Todd V Studholme 120 Toft V. Stevenson ■. . . 204 Tolson V. Jervis 7 Tommey v. White 178 Tompkins v. Holmes 345 Toms, Be. . . ! 30, 340 Topping V. Searaon 23, 24 Torrance v. Chewett 114 — V. Torrance 137 Toronto Harbour Commissioners, Re 113 Toronto Savings Bank v. Canada Life Asaurauce Co . .35. 99 Totten V. Macintyre ' . . . . 331 — V. Mclntyre 140 Totten V. Watson 251 Townend v. Hunter 117 Townsend v. Townsend 366 Townsley v. Neil 108, 319, 323 Train v. Smith 370 Travers v. Gustin 40 Trevelyan v. Charter 106, 181 _ V. White 108 Trimble v. Parsons 225 Trinity College v. Hill 265 Trulock v. Robey 94, 107, 255 T. Trustees of Birkenhead Docks v. Laird 327 Trust & Loan Co. v. Cuthbert. .244, 249, 251, 256, 257 — v. Kirk 251 — V. McCarthy. . . . 236, 332, 33ft — V. Monk 213 — V. Reynolds .... 229, 231 — V. Start 204, 274 Tudor V. Morris 52 Turley v. Evans 204 — V. Meyers 164 TumbuU V. Symmonds 227, 23» Turner v. Buck 287 — V. Burkinshaw 99 — V. Hodgson 181 — V. Morgan 106 — & Skelton, Re 205 Turrill v. Turrill 205, 207 Tylee v. Hinton 272 Tyler v. Thomas 24a U. Union Cement & B. Co., Re — Ex p. Pulbrook 25" Union Bank v. Ingram 255 V. Vallance v. Birmingham 58' Vannatto v. Mitchell 40, 72 VanNorman v. Beanpr^ 207 Vanstou v. Thompson 9S Van Wagner v. Findlay 257 Vanzant v. Burke 203^ Vardou v. Vardon 63 Veal V. Veal 344 Vernon v. Kinzie 151 Vickers v. Bell 40 Viney Ex p 220^ — V. Chapman 70,76,181 Vivian v. Mitchell H7 — V. Westbrooke. .41, 279, 280, 363 Vyse V. Foster 95. W. Waddell v. McColI 105, 130, 131, 173, 250, 255, 259, 265 Wadddell v. Smyth , 130, 138 Table of Cases. XXV W. Waddilove v. Taylor 28, 160 Waddle v. MoGinty 37, 58, 148 Wade, Re— Dee v. Wade 44 Wallbridge v. Martin 127, 243 Walker, Ke 340 — V. Matthews 274 — V. Niles 178 — V. Seligmann,38, 47, 48, 128, 369 — V. Ware H.' & B. R. W. Co. 229 — V. Woodward 96 Wallace v. Shipmann 44, 283 Walmsley v. Bull 103, 116, 130 Wakhv. Bourke 91, 246 Walton, Ke 20 — V. Armstrong 209 — V. Bernard 107 Warburton v. Edge 25 Ward V. Booth 162 — V. Carttar 106 Warden V. Trenouth . . 28, 202, 206, 207, 208 Wark V. Moulton 79 Warman v. Zeal 181 Warner v. Mosses 144 Warren v. Taylor 248 Waterous v. Farran 149 Watkins v. McKellar 249 Watney v. Wells 100 Watson V. Bradshaw 279 — V.Ham 147,148 — V. Henderson 86 — V. Lyon 26 — V. Moore 133 — V. Parker 75 — V. Rodwell 75 — V. Severn 279 Watt V. Parker 215 Watts V. Hobson 79 — V. Symes 248 Weale v. Rice 122 Weaver v. Vandusen 105, 249, 250 Webb v. Byng. 327 — v. McArthur 29 Webber v. Hunt 101 Webster v. The British Empire In- surance Co 34 Webster v. Le Hunt 24, 26 — V. Leys 40 Wedderburn v. Wedderburn 23, 96 Weeks v. Stourton 140, 262 Weir V. Matheson 66 Weiss V. Crafts 216 Weldon v. Templeton 86, 315 Wellesley v. Mornington 159 Wells V. Kilpin 152 W. Werderman v. Society Generale D'Electrioit^ 38, 41, 54 West V. Downman 182 Westbrooke v. Browett 282 Western Assurance Co. v. Capreol . . 263 Western District Bank v. Tumor . . 107 Western Insurance Co. Re 145 Western o{ Canada 0. L. & W. Co. Re 63 Westmacott v Hanley 254 Whalley v. Whalley '. 23 Wheatley v. Bastow 30 Whelan v. Couch 198, 202 Wheeler v. Home 106 White v. Beasley 242 — v. Chitty 53 — V.Courtney 133 — v. Cummins 44, 283, 364 Whitehead v. North 89 Whitfield v. Roberts 260, 266 Whitla V. Haliday 245 Whitney v. Smith 39, 43, 47, 128 Whittemore v. Whittemore 206 Wiard V. Gable 97, 364 Wigle V. McLean 50 — V. Setterington 240 WigMman v. Helliwell 97 Wilde V. Crow 142 Wildy V. Mid-Hants R. W. Co .... 153 Wilkes V. Saunion Ill, 249 Wilkins v. Reeves 51, 52 Wilkinson v. Schneider 344 — V. Wilkinson 112 WiUcock V. Terrell 162 Willett V. Blanford 96 Williams, Re 24 V.Allen 36,54,55 — V. Corby 60 — V. Haun 139 — V.Powell 96 — -vr-iteynolds 367 — V. Wood 193 Williamson v. Seaber 108 Willis V. Parkinson 182 — V.Walker 40 — V. WUMs 35, 120, 284 Wilson, Re ■. . 319 — V. Clapham 105 — V. Cluer 100 — V. Emmett 20,26 — V. Greenwood 153, 1 55 — Re, Lloyd v. Tichborne 280 — V. McCarthy 99,159 — V. Metcalfe . . . 100,101, 107, 162 — V. Robertson 182 Table of Cases. w. Wilson V. Turner 322 — V. Wilson 167, 168, 'z9S Wiltshire v. Marshall 147 Winchester, Bishop of v. Mid-Hants E. W. Co 229 Winkley v. Winkley 7 Wisewold, Re 19 Wishart v. Cook 212 Witt V. Ames 23 Wood V. Brett 52, 137 — V. Hitchings 151 — V. Hurl 370 — V. McAlpine 45 — V. Scoles 100 — V. Vincent 159, 160 — V. Weightman 41, 119 — V. Wood 41, 108, 371 Woodhall, Re — Garbutt v. Hewson ■ 280, 363, 364 Woodhill V. Sullivan 213 Woodhouse v. Woodhouse 36 Woodward v. Pratt 344 — V. Shields 32 Wormsley v. Sturt 83, 125 Worrall v. Johnson 25 Worth V. McKenzie 314 W. Wright, Re 30, 307 — V. King 19, 23 — V. Morgan 102, 252 — V.Wright 245. 37» Wyatt V. Sadler , 88- Wyehe, Re 112 Wyoming v. Bell 108, 10» Y. Yaggie, Be 109, 13.'> Yates V. G. W. R. W. Co 46 Yeatman v. Read 8 — V. Snow 24 York Union Banking Co. v. Artley. . 228 Young V. English 35 — \'. Robertson 41, 54 — V. Ward 51 — V. Wright 369 Yourex v. Aleombrack 205 Zimmerman v. O'ReiUy 39' TABLE OF CANADIAN STATUTES CITED. K. S. 0., o. 1, s, 8.... c. 15, s. 24 . . c. 16, ss. 1-6 0. 39, s. 29 . . c. 40, s. 8 . . " s. 27 .. 220 156 252 78 359 76 162 162 154 a. 47 s. 59 s. 65 s. 66 s. 67 s. 76 s. 34 - s. 36 s. 39 44 244, 294 294 360 80 360 80 .320, 321, 322 " s. 77 319, 320 " s. 78 319, 320, 324 " s. 85 320 " 3. 86 357 " s. 95-96 168 " s. 101 216 " s. 102 164 c. 46, as. 51,64 36 " s. 59 40 c. 49, ss. 10-11 79 " sa. 9, 32 80 c. 50, a. 75 81 " =. 156 ....56, 57. 63, 64 s. 260 . . . . ». 266 . . . ». 267 . . . . ». 16 c. 55, a. 3, ss. 2 i;. 61, ss. 1, 6 .54, ... 63 ... 121 ... 287 ... 176 .... Ill ... 102 c. 62. ss. 2-11 117 " s. 4 71 " s. 10 279, 288 c. 66, a. 40 41 o. 70 80 c. 93, a. 3 213, 299 c. 95, s. 4 108 c. 98, ss. 13-14 194 6 c. 101 c. 107, s. 15 " a. 32 369 52 44 s. 34.... 41, 42, 44, 119, 282, 287 E. S. 0., c. 107, s. 36 41, 113 a. 37 41, 113 " s. 38 41, 113 " a. 39 41, 113 " a. 40 41, 113 c. 108, 3. 4 252 s. 17 102 " s. 18 102, 252 c, 109, 3. I 298 0. 110, a. 2 295 a. 3 295, 300 " a. 5 296 3. 6 302, 297 a. 7.. 296, 297, 299, 302 " =.12 299 =.14 299 =.16 305,306 =.17 305 =.18 305 =.19 305 " =.20 305 " =.21 305 " =.22 305 " s. 23 305, 306 s. 33 312 >;. 111,=. 74 257 " a. 81 249 " s. 82 296 i;. 116, 3. 7 45 o. 126, 3. 3 298 33. 8-10 80, 319 " u. 130, a. 1 81 " c. 132 322 S3. 1-3 81 3. 8 323 " c. 149, a. 26 30 e. 174, a. 465 194 " c. 180, 3. 116 299 c. 220, 3. 49 350 C. S. C, c. 5 299 c. 79, 3.4 63, 70 0. S. U. C, c. 12, aa. 34, 37 360 24 Vict., t. 41, =. 7 334 29 " c. 28, =. 20 209, 213 29 & 30 Vict., c. 43 299 34 Vict., 0. 10 (0.) 340 37 " e, 37 (D.) 142 39 " c. 8, s. 2 (0.) : 361 x.xviii Table of Canadian and Impeiual Statutes Cited. 41 Vict., 0. 8, ;. 12 (0.) 319 46 " .;. 18, 8. 495 (0.) 197 TABLE OF IMPERIAL STATUTES CITED. 5 Geo. II., c. 7, a. 4 ... 161 15 & 16 Vict. , u. 86, 8. 42, r. 6 . .. 45 14 Geo. 111., c. 78, ». 83 ... 2.54 " r. 7 .. .. 46 33 " 0.8 ... 41 8.9 .. 56 11 Geo. IV. &. 1 Wm. IV., u. 36, 8. 51 .. 37 s. 15, r. 16 ... 162 19&20 " u. 120 .. 320 15 & 16 Vict., u. 86, s. 42 ... 51 21 &22 " u. 77 .. 320 " 1.1.. ... 39 " u. 93 .. 313 " r. 2.. ... 43 23&24 " c. 127, o. 28 .. 29 " r. 4 . . ... 43 25&26 " c. 108 .. 320 " ..5.. ... 44 28 Vict., u. 45 .. 320 TABLE OF RULES OF SUPREME COURT CITED. No. of Bult. Whebe Cited. 3 134, 136, 223, 234, 276, 278, 332, 372, 378, 379. 8 17. 9 17, 20. 31 359 33 22 36 12, 16, 47, 281, 313, 316, 356. 37 16, 357. 39 314. 45 359. 50 61, 135. 53 20. 54 20, 21. 61 359. 68 238. 69 315. 70 47. 71 22. 78 17, 234, 236, 377, 378. 79 79. 80 80. 88 278. 90 31. 91 53, 43. 92 43. 93 54, 55. 95 50, 51. 99 52, 53. 102 46, 50. 103 31, 32, 33, 37. 38, 46, 54, 58. 104 54. 107 54, 63. 108 54, 6.3. 109 239. 114 48, 92, 120, 288. 127 54. 128 59. 129 59, 219. 130 219. 131 [ ! ! ! ' !82, 91, 146, 224, 246, 331. 147 102. 150 61. 158 170. 163 73, 124. 178 60. 195 221. 203 149. D Ko, of Rule. ^^ HERE Cited. 211 62, 149. 219 63. 220 56, 63, 170. 221 68. 222 12,62, 68. 224 63, 64. 225 56. 226 56. 227 56. 228 62. 230 170. 236 .... 66. 238 62. 239 65, 67, 69. 241 69. 242 69. 243 69. 254 69. 255 69, 149, 355. 256 69. 257 69. 258 69. 259 69. 260 69. 261 69. 262 69. 263 69, 223. 264 69. 265 69. 266 69. 267 69. 268 69, 74. 269 69, 74. 271 70. 272 70. 282 69, 70. 283 120, 148, 149, 218. 284 143, 141. 285 69, 218, 147. 286 70, 117. 287 70, 117. 288 70, 117. 289 70, 117, 290 70, 117. 291 70, 117. 292 70, 117. 293 70, 117. Table of Rules of Supreme Coukt Cited. No. of Rule. Where Cited 294 70, 117. 295 70, 117. 296 70, 117. 297 70, 117. 298 70, 117. 299 70, 117. .300 70, 117. 301 69. 302 69. 303 69. 304 69. 305 69. 308 224. 309 224. 311 171, 315 149. 318 149. 319 149. 320 149. 321 149. 322 149. 323 149, 358. 324 149. 325 14, 17, 77, 379. 326 14. 327 17. 328 17. 329 77. 330 74. 331 122, 194, 215, 241, 267, 366. 333 239, 275. 334 239, 275, 276. ^ 335 239, 275, 276. 336 241, 261. 337 267. 338 89, 181. 341 166, 275. 344 162. 345 77. 348 17. 358 168. 360 162. 365 66, 160. 374 40. 379...... 166, 275. 380 275. .381 275. 385 40. 386 219. 387 222. 399 154. 403 190. 404 29, 81. 405 29, 79, 81. 406 79, 8L 407 66, 79, 81, 145, 217, 223, 225, 278. No. of Rule. Wbere Cited. 410 145, 146. 411 29, 145, 146. 412 81. 416 5, 354. 417 11, 17, 47, 294, 330, 354, 377r 378. 420 78, 79, 81, 277, 340. 422 15, 16, 79, 80, 85, 169, 196, 319, 373. 423 85. 424 321. 426 81, 85, 341. 427 68, 81, 342, 351, 352, 373. 428 70, 168. 431 12, 432 15, 171, 358. 433 331. 434 146. 435 60, 170. 438 171. 439 172. 444 12. 445 59, 61, 168, 169, 124, 125, 336.- 446 59. 447 81, 172. 448...... 172. 449 172. 450 172. 451 59. 452 59. 453 59, 141, 170. 455 220. 456 220. 457 220. 461 221, 222. 462 222. 463 170. 464 59, 141. 465 141. 466 141. 467 17, 141. 468 141. 469 141. 470 141, 144. 474 32. 475 183. 477 343, 359. 478 343, 259 480. ...223. 506 215. 510 225. 513 12, 68. 514 222. 515 15, 175, 333. 517 379. 518 48, 92, 120,288. 519 156, 360. Table of Rules of High Court of Justice Cited, xxxi No. of Rule. Where Citeb. 520 17, 234, 236, 377, 378. 522 224, 225. 523 224, 225. 524 222. No. of Rule. Where Cited. 526 224. 527 224. 534 226. 535 226. TABLE OF RULES OF HIGH COURT OF JUSTICE CITED. No. of Rule. Where Cited. Ill 223. IV 223, 368, 373, 374. 352. V 221. 159, 183. X 159, 183. ADDENDA ET CORRIGENDA. Page 7, line 15 from top, after 44 L. T. add "N. S." 7, " 6 from bottom, after 48 L. T. add " N. S." 26, " 19 from top, after 46 L. T. add "N. S." 27, " 18 from bottom, " 48 L. T. add "N. S." 28, " 5 " " 45L. T. add "N. S." 28, " 23 " " 1883, p. 145. add "Tlie Hope, 49 L. T. N. S. 158." 40, " 1, for Eq. 30 read " Eq. 20." 44, " 9 from bottom, for Be Bosworth, Howard v. Caston, 45 L. T. 136, read "Me Bosworth, Howard v. Easton, 45 L. T. N. S. 136." 60, " 2 from bottom, for Leggos's read "Leggo's." 65, " 3 " top, Davis v. Wickson, 18 C. L. J. 166, add " hut see Fisken V. Chamberlain, 9 P. &. 283." 66, ' 15 from top, for 42 Vict., read "41 Vict." 70, " 10 from bottom, for 1 Chy. Ch. C. 282, read " 1 Chy. Ch. E. 282." 85, " 3 from top, for Rule C. C. read " Rule S. O." 89, " 14 from bottom, for 3rd Junn read " 3rd June." 97, strike out 2nd side note from bottom, and add after McLennan v. Heward, 9 Gr. 178 " and see i?e /o«es, Jones v. Searle, 49 L, T. N. S. 91." 102, The case of Sutton v. Sutton, cited on this page ia now reported 22 Ch. D. 511, and Fearnside v. Flint, also cited on this page ii now reported 22 Ch. D. 579. 104, line 7 from top, after Jones add "v." 109, " 1, after Skae v. Chapman, 21 Gr. 549, add "Munsie v Lindsay, 19 0. L. J. 186 ; Plumb v. Steinhoff, 2 0. R 614." 109, " 13 from top, for Mill v. Mill read "Mill v. Hill." 110, " 16 " f or Kirby V. Kirby rend " Kerby v. Kerby." 112, " 3 " after supra add " but see Union Bank v. Ingram, IS Ch. D. 53." 113, " 13 from bottom, for Thomson read " Thompsmi.'' 114, " 8 from top, after 479 add " ife jBa«, Wright v. White, 9 7. 'R. 44,7.'" 118, " 5 " afterSApp. E. 309, add "Be Boss, 29 Gr. 385. Be Murray, 29 Gr. 443." at the end of 5 th paragraph from top, after lb. add " and see Barling v. Darling, 19 C. L. J. 329." 119, " 5 from top, after E. S. 0. c. 107, a. 34, add "see now 46 Vict. u. 9, . s. 1 (0.)" xxxiv Addenda et Corrigenda. Page 120. In 4th paragraph, after Re Metcalfe, W. N. (79) 166, add "Cotton v. Vansittart, 9 U. C. L. J. N. S. 312." " 124, bottom Une, for "for boeoming " read " becoming." " 125, 2nd side note, for " Party seeking to discharge" read "Party seeking to surcharge." " 137, line 18 from bottom, for 2 C. L. T. 83, read " 2 0. L. T. 88." " 138, line 19 from top, after 3 Chy. Ch. R. 412, add " but see McArthur v. Prettie, 29 Gr. 500." ■" 145. The case of Sear v. yVebb, cited on this page, is now reported as, Seear V. Webb, 49 L. T. N. S. 94, 481, add after this case " but see Se RoHier, Jones v. Barllbolomew, 49 L. T. N. S. 442." " 151, line 10 from bottom, after 34 Beav. 175, add " and see R. S. 0. c. 46, s. 51." "" 152, " 18 from bottom, for Miltt: v. Northern Railway of Buenos Ayres, read "Mills" v. Northern Railway, tbc. " 156, Ord. 281; 3rd line, for "so consider " read "to consider." " 157, line 15 from top, after words " constituted receiver " add " as against third parties. '' " 158, " 15 from top, after See post Ord. 588, add " a Receiver and his sure- ties are liable for all moneys which he may have received, whether before, or after, perfecting his security : Smart v. Flood, 49 L. T. N. S. 467." " 159, " 7 from top, after "Supreme Court" add "under." " 160, " 9 " niter Thomas v. Cross, 2 Dr. & S. 422, add "where a trust fund is being administered by the Court, notice to the trustee of an incumbrance, will not give the incumbrancer priority over a. prior incumbrancer who has not given notice, but who has obtained a stop order. Pinnoch v Bailey, 48 L. T. X. S. 811." " 172, " 6 from bottom, for 2 C. L.T. 83, read "2 C. L. T. 88." " 173, at the end of 3rd paragraph after Keim v. Yeagley, 6 P. R. 60, add " and see Edwards v. Pearson, 3 C. L. T. 504." " 175, line 10 from bottom, for 2 C. L. T. 83 read " 2 C. L. T. 88." " 189, In note to 0)yZ. .373 for Or(?. 926 read "0)-rf. 626." " 194, line 18 from bottom, after R. S. 0. .;. 174, ». 465, ss. 2, add "(now 46 Vict. u. 18, s. 495)." " 196, at the end of first paragraph add "but see Boswell v. Coaks, 23 Ch. D. 302 ; 48 L. T. N. S. 929. " 199, at the end of the second paragraph of the note to 07-d. 387, after Be.aty V. Radenhurst, 3 Chy. Ch. R. 344 add " Rodgers v. Rodgers, 13 Gr. 143." " 200, at the end of first paragraph add "49 L. T. N. S. 29." " 202, line 5 from bottom, after 26 Gr. 74, add "Collins v. Stinson, 48 L. T. N. S. 828." ^' 206, " 16 from top, after 43 L. T. K S. Ill, add "SmUh v. Latid and House Property Corporation, 49 L. T. N. S. 532." Addenda et Corrigenda. xxxv Page 207, line 18 from top, after Horner v. Williams, Jo. & Ca. 274, add " Hf Perriam, Perrinm, Perriam, 76 1j. T. 149." " 215, lines 13 !,nd 14 from top for 7 Gr. 42 read " 7 Gr. 142." " 223, line 10 from bottom, after Ramohr v. Marx, 19 G. L. J. 10, add " but see WeUter v. Leijx, 3 0. L. T. .504." " 227, " 17 from bottom, after SMon add " 22 Oh. D. 511." " 233, last line of note to Ord. 431, add at beginning of the line the word "with." " 238, line 12 from top, after 12 Gr. 429 add " Paidds v. Harper, 2 0. R 405." " 248, " 20 " afterSOladd "i)fc/n«)/rev. TAom/Jsort, 19 C.L.J. 393." " 248, " 4 from bottom, after 19 C. L. J. 54, add " 3 0. R. 210." " 250, " 1, ioT Carrol vead " Oarroll." " 11 from bottom, for stiputated read "stipulated." ■" 252, " 15 from top, after Suttoti v. Sutton, add " 22 Ch. D. 511." " 16 " after Fearnside v. Flint, add " 22 Ch. D. 579." " 11 from bottom, after 46 L. T. K S. 321, add " Fletcher v. Rodden, 1 0. R. 155." [' 254 " 3 from bottom, after 2 0. R. 89, add "this case was reversed in appeal : see 19 C. L. J. 348, but its reversal does not appear to affect the proposition in support of which it is cited." •" 259, " 11 from top, for "one day is given " read " one day may be given.'' " 264, " 7 from bottom, tdtev Scton, 1044 add " or a sale majr be ordered, Bartlett v. Bees, 12 L. R. Eq. 396." " 272, last line of third paragraph, after Letts v. Hutcliins, 13 L. R. Eq. 176, add "not even though notice of payme nt had been given lief ore action : Re Alcoch, Prescott v. Phipps, 49 L. T. N. S. 240." " 277, line 12 from top, before 242 add "L. J." " 278, " 17 from bottom, after 10 L. R. add " Eq." " 279, "6 " for 45L. T. N. S. 404read "45 L. T. N. S. 464." " 284, " 12 from top, after Meyers v. Meyers, 20 Gr. 185, add " Willis v. Willis, 20 Gr. 396 ; Re Ross, 29 Gr. 385." " 364, " 15 from bottom, after 50 L. J. Chy. 317 add "and see Killins v Killins, 29 Gr. 472." " 6 from bottom after 48 L. T. N. S. 476 add " McEwanv. Crombie, 49 L. T. N. S. 499. ■" 371, " 5 from top, for i?e ^)-nott, C/tatterto)?. V. ^™oM, read " Re Arnott^ Ohatterton v. Chatterton." "■ 373, at the end of third paragraph add " The seven days' notice required by this Order are to be computed exclusive of the first, and inclusive of the last, day : Rule S. C. 456, Webster v. Leys, 3 C. L. 504." CONSOLIDATED GENERAL ORDERS OF THE COURT OF CHANCERY, 23bd JUNE, 1868. PRELIMINARY. The Judges of the Court of Chancery for Upper Canada, do hereby, in pursuance and execution of all powers and authorities enabling them in that behalf, order and direct in manner following : — 1. From and after the first day of July, 1868, all the ^" '■°™" O''- •^ ^ ' aers abrogated. General Orders of this Court which have been at any time heretofore made, shall be abrogated ; and in lieu thereof, the Orders hereinafter expressed shall consti- tute the General Orders of the Court. The 12t]i section of The Judicature Act provides that the jurisdic- J^'force Sir' tion of the High Court of Justice, and Court of Appeal, shall be Judicature Act. exercised, so far as regards procedure and practice, in the manner provided by The Judicature Act, or by such Buks as may be made pursuant thereto ; " and where no special provision is contained in this Act, or in any such Rules or Orders of Court with reference thereto, it shall be exercised, as nearly as may be, in the same manner as the same might have been exercised by the respective Courts if this Act had not been passed :'' and the 52nd section is as follows : ' ' Save as by this Act, or by any Rules of Court, may be other- wise provided, all forms and methods (as nearly as may be) of proce- dure which, at the commencement of this Act, were in force in any of the Courts whose jurisdiction is by this Act vested in the said High Court under or by virtue of any law, general order, or rule whatsoever, and which are not inconsistent with this Act, or with any Rules of Court — may continue to be used and practised in the said Chancery Orders 2 — 3. Cby. Orders whether appli- cable to Q. B. ana C. P. Divi- sions. High Court of Justice, in such and the like cases, and for suoli and the like purposes, as those to which they would have been applicable in the respective Courts of which the jurisdiction is so vested, if this Act had not passed." And at the heading of the Bules of the Supreme Court appended, to T!ie Judicature Act isthe following : " Note. — Where no other pro- vision is made by the Act, or these Rules, the present procedure and practice remain in force. '' It is, therefore, subject to these provisions that any Orders of the Court of Chancery now continue in force. In judging as to the extent of their operation, it will be necessary to consider the scope of each Order. Some will be found applicable to all the Divisions of the High Court, others again wiU be found to apply exclusively to the Chancery Division. Where it is found that Orders in Chancery and Common Law Rules, which are not affected by The Judicature Act, conflict, it might be supposed that it was the intention of The Judi- cature Act that the former should govern the practice in the Chan- cery Division, and the latter the practice in the other Divisions. But it will be seen that the words of section 52 are, ' ' may continue to be used and practised in the said High Court of Justice," which seems to exclude the idea that one practice is to be limited to one part of the Court, and another, to the rest of it. In Newbiggen-by-the Sea Gas Co. V. Armstrong, 13 Chy. D. 310, it was held that where this conflict existed, that practice is to prevail in all the Divisions of the High Court, which the Court may consider most convenient. And until this question of convenience is judicially determined, it would seem that the suitor in any Division may adopt whichever of the two conflicting practices he may think best. Orders having a merely local application are those regulating the duties of particular officers, or the sittings of,' or order of business in, the Court ; but most of the other Orders which are still in force would now seem to have a general application to all the Divisions of the High Court. Abrogation not o. The abrogation hereinbefore made shall not affect to affect practice & °n "^iraie?'^^!^'-"" ^^J practicB of the Court or any practice or usage of, theJori/'"^ i"^' O'-' Connected with, any of the offices of the Court, or the officers thereof, which originated in, or was sanc- tioned by, any of the Orders hereby abrogated, except so far as the same may be inconsistent with anything hereinafter contained. {Eng. Con. Ord. Prelim, r. 5.) Abrogation of former Ords., not to revive Ord. abrogated thereby. 3. Where axij of the Orders hereby abrogated, were intended to abolish any office, writ, practice, matter, Chancery Orders 4 — 6. 3 fee, or thing, such abrogation shall not have the effect of reviving the same. {Eng. Con. Orel. Prelim, r. 6.) 4. Every Order or part of an Order hereinafter con- g?°,\'™«™ °' tained which is a repetition, without variation, of an Order or part of an Order hereby abrogated, shall receive the same construction as was put on the abro- gated Order, or part of an Order, and shall operate, not as a new Order, but in the same manner, whether as to the time of operation or otherwise, as the abro- gated Order or part of an Order would hav6 operated if this consolidation had not been effected. {Eng. Con. Ord. Prelim, r. 7.) 5- Every Order, or part of an Order, hereinafter con- tained, which is a repetition, with variations, of an Order, or part of an Order, hereby abrogated, shall re- ceive the same construction as was put on the abro- gated Oi'der, or part of an Order, and shall operate not as a new Order, but in the same manner, whether as to the time of operation, or otherwise, as such abro- gated Order or part of an Order would have operated if this consolidation had not been effected, except so far as such variation indicates a contrary intention. And where the variation is of such a character as to be reasonably attributable, not to a variation of intention^ but simply to a design to harmonize the style or language of the several Orders hereinafter incorporated, such variation shall not be deemed to indicate any such contrary intention. {Eng. Con. Ord. Prelim, r. 8.) 6 ■ The following writs, pleadings, and proceedings certain prMM*- are abolished : — Subpoenas to appear and answer ; Subpoenas to rejoin ; Attachments with proclamations ; Commissions of rebellion ; Bills of revivor : Chancery Order 7. Original bills in the nature of bills of revivor ; Supplemental bills ; Original bills in the nature of supplemental bills ; Bills of revivor and supplement ; Bills in the nature of bills of review ; Bills to impeach decrees on the ground of fraud ; Bills to suspend the operation of decrees ; Bills to carry decrees into operation ; Pleas ; Appearance either by the defendant, or by the plaintiff on his behalf ; Exceptions to bills, answers, or other proceedings for scandal or impertinence ; Rules to produce witnesses ; Rules to pass publication ; Orders nisi ; Applications to be examined ^ro interesse suo; Setting down a cause on an objection for want of parties merely. It shall not be necessary, in order to enforce any order or decree to obtain any order for, or sue out a warrant to, the Sergeant-at-arms. 7. In these Orders, and in all Orders to be passed of words. hereafter, the following words shall have the meanings hereby assigned to them, besides their ordinary mean- ings, unless there is something in the subject or context repugnant to such construction, viz : 1. Words importing the singular number include the plural number ; and words importing the plural number include the singular number. 2. Words importing the masculine gender include females. 3. The word "person" or "party" includes a body politic or corporate. 4. The word "bill" includes information. 5. The word "plaintiff" includes informant. Interpretation Chancery Order 8. 5 6. The word "affidavit" includes affirmation. 7. The word "legacy" includes an annuity and a specific, as well as a pecuniary, legacy. 8. The word "legatee" includes a person interested in a legacy. 9. The expression "residuary legatee" includes a person interested in the residue. 10. The word " order" includes decree and decretal order. 11. The word " Master " includes Accountant, and Local Master. 12. The word " month " means calendar month. 11. OFFICEES OF THE COURT. EEGISTRAR. 8. All orders made in open Court, or to be issued on orders to be ^ , drawn and set- precipe for foreclosure, sale, or redemption, or for a sale tied by Registrar, instead of foreclosure on the application of an incum- brancer, are to be drawn up, settled, and passed- by the Registrar. This Order formerly applied to all decrees and orders (see ante, Settling minutes. Ord. 7) made in Chancery, in open Court, and also to all decrees and decretal orders, issued by the Registrar on prcecipe. Decrees are now called Judgments, and are governed by the Rules of the Supreme Court. Under those Rules the officer entering the judgment is to see that it is in proper form ; and in special cases the Judge pro- nouncing the judgment may direct its terms to be settled by one of the Judgment Clerks. See Rule 8. C, 416 ; Breckenridge v. Ontario L.&D. Co., 19 C. L. J. 140. Whenever a judgment is referred to one of the Judgment Clerks to settle, the practice laid down by this and the next four Orders will be followed. And in this note the word "Registrar'' must be understood to include Judgment Clerk. When a judgment is pronounced, or an order made, by the Court, a note ia taken by the Registrar or other officer attending the Court for the purpose, and a similar note is indorsed by counsel on the briefs ; and from these notes the draft or itiinute of the judgment, or order, is prepared. When the judgment is pronounced on circuit, and it is referred to the Judgment Clerk to settle the terms thereof, the officer attending 6 Chancery Order 8. the trial should forward to the Judgment Clerk a return showing the date, and place, of the trial, the parties who appeared by counsel, or in person, a short note of the nature of the evidence (if any) adduced, and of any consents given, and of the judgment pro- nounced. — (See Holmested's Manual Pr., pp. 22, 23.) Appointment to The party desiring to enter the judgment, or issue an order, usually in practice prepares a draft, and attends the Registrar for an appoint- ment to settle it. The Registrar will, however, if required, himself prepare the draft of any order, and when it is ready will issue the appointment to settle it, if he shall deem one necessary. (See post Ord. 12.) On the return of the appointment, the parties notified are to attend and make any objectibns they may have to the draft, which are disposed of by the Registrar, who then marks the draft settled, and adds his initials. The minutes having been settled, the judg- ment, or order, is then engrossed, and having been compared with the draft and passed, it is then signed or marked by the Registrar for entry. Appointment to Where the Registrar thinks it necessary he may give an appoint- '"'°'' ment to pass ; c. jr. , when any blanks have been left in the draft ; or the terms of the order, or judgnient, are comphcated, and there is any danger of error in transcribing the draft, &c., &c. The passing of the judgment, or order, is merely the act of comparing the engrossment with the draft and seeing that it agrees with it, and signing and marking it for entry. Registrar may The Registrar in drawing up, or settling any order, may introduce make alterations, g^gjj alterations as from his experience he believes the Court wiU sanction ; and these alterations are binding on the parties. See Davenport v. Stafford, 8 Beav. 50.3 ; Hargrave v. Hargrave, 3 M. & G. 348 ; Seton 1546. Where questions of difHculty arise, the Registrar may require the matter to be mentioned to the Court. Varying minutes Motion tO Vary minutes.^ — After the draft or minutes have been settled by the Registrar, but not before, any party dissatisfied may move to vary the minutes ; and the Registrar should be previously informed of the application': Prince v. Howard, 14 Beav. 208 ; Hood V. Cooper, 26 Beav. 373 ; Tennant v. Trenchard, 4 L. R. Chy. 537, 545 ; British Dynamite Co. v. Krebs, 25 W. R. 846 ; and such appli- cation may be made at any time before the judgment, or order is passed and entered ; 1 Turn, and Yen. 319 ; Danl. Pr. 875 • Seton 1546. The notice of motion should be served on all parties inter- ested, and state the alteration desired. The Court may refuse to permit any question to be argued on a motion to vary the minutes, except what was the actual order made, unless both parties consent to an addition being made, or when it cannot be ascertained what order was pronounced ; in which cases Chancery Okder 9. 7 the Court may allow the case to be re-argued. (See Seton 1546.) The Court has however, on a motion to vary minutes, varied the decree : Johnson v. School Trustees, 26 Gr. 204. Any variation made by the Court is embodied in the draft, and Costa of motion, except where the costs of the motion are ordered to be paid, no further order need be drawn up by any party. If there is fair ground for the application, and there has been no improper opposition, the costs are usually made costs in the cause, and the judgment, or order, may be post dated so as to include the costs of the day. (See Seton 1546.) Where, after judgment was pronounced, a mistake was discovered iu the statement of claim, on a subsequent application to amend the statement of claim, the judgment was directed to be post dated as of a day subsequent to the amendment : Winhley v. Winldey, 44 L. T. 572..-;^? Under the former practice, if the suit abated after decree pro- Abatement, nounced, or between hearing and I gment, the decree might be passed and entered notwithstanding the abatement of the suit. Seton 1547 • Beamish v. Pomeroy, 1 Chy. Ch. R. 32. Under Order 456, an incumbrancer made a party in the Master's Judgment for office in a foreclosure suit, entitled to, and desiring, a sale of the fojeciosu™ "^ mortgaged premises, might on paying into Court $80, and applying to the Registrar before the Master's report was settled, obtain an order on prcecipe for a sale in lieu of a foreclosure. Under the new procedure such orders are still made. (See Ord. 456 jpost) 9. After an order is passed and signed by the Regis- Entry of orsa-s. trar, the same is to be entered by the Entering Clerk and issued by the Registrar to the party entitled, thereto. This Order in terms applied to all orders and decrees which are passed and signed by the Registrar. See, however, Ord. 195, which provides that no order (except decrees, decretal orders, or final orders, for foreclosure, or sale), obtained ex parte and not being of a special nature, is to be entered, unless the entry thereof shall be directed by the Court or a Judge. Before an order requiring entry can be enforced by attachment for disobedience, it must be entered, and such entry should have been made before the expiry of the time limited by the order for doing the act thereby ordered to be done : Ballard v. Tomlinson, 48 L. T. 515. w'^/5. Proceedings under a judgment, or order, requiring entry before it has been entered are irregular and voidable : Tolson v. Jervis, 8 Beav. 366 ; Drummond v. Andersov, 3 Gr. 150. Although in the case of injunctions and restraining orders, parties are bound by notice 8 Chancery Orders 10 — 11. of the restraining order, however received, from the time when it is pronounced : Seton, 174. Time for entry. By English Gen. Ord. of 4th December, 1691, all orders pronounced in Michaelmas or Hilary Terms, or the vacations following, were to be entered before the first day of the ensuing Michaelmas Term ; and all orders pronounced in Easter or Irinity Terms, or the following vacations, were to be entered before the first day of the ensuing Term. This order is considered to be still in force in England. (See Seton 1547.) Whether it is binding here seems doubtful. (See, how- ever, E. S. 0. c. 40, s. 34 ; /. A. s. 18.) Entry nunc pro Orders may be made to enter judgments, or orders nunc pro tunc : Donne v. Lewis, 11 Ves. 601; Lawrences. Richmond, 1 J. & W. 241. See, however, Drummond v, Anderson, 3 Gr. 150. Varying judg- After a judgment, or order, has been passed and entered, it can, as a general rule, only be varied on appeal or rehearing, except in cases of clerical mistakes, or errors, arising from any accidental slip or omission, which may be corrected on motion without appeal. Rule S. C, 338. See Pepper v. Pepper, W. N. 1868, 104 ; Re Robinson W. N. 1873, 28 ; Andrews v. Bohannon, W. N. 1869, 80; Teil v. Barlow, 3 D. J. & S. 426; Mason v. Seney, 2 Chy. Oh. E. 30; Moffatt V. Hyde, 6 U. 0. L. J. 94 ; Simmers v. Erb, 21 Gr. 289 ; or where the judgment has been obtained by default : see Kline v. Kline, 3 Chy. Ch. R. 79; or on prmcipe: Nelles v. Vandyke, 17 Gr. 14, in which oases also they may be corrected, or varied on motion. ^pSking Orders. 10. Every Order is to be bespoken, and the briefs and other documents required for preparing the same are to be left with the Registrar, within seven days after the order is pronounced or finally disposed of by the Court. (Ist April, 1867; Ord. 5.) {Eng. Con. Ord. 1, r. 21.) A party not producing his briefs when required, was ordered to do so within a limited time, and in default the order was to be drawn up without them ; Yeatman v. Read, 14 W. E. 123. A sohcitor who has been discharged by his oheut before the pass- ing and entry of an order, wiU not be allowed to withhold papers on which he claims to hold a lien, so as to prevent the drawing up or entry of the order : Simmonds v. G. E. Ry. Co., 3 L. E. Chy. 797 ; Clifford V. Turrill, 2 D. &. S. 1. deTuit""""^' °^ 11- In case an order is not bespoken, or the briefs and other documents are not left, within the time pre- scribed by Order 10, the order is not to be drawn up Chancery Orders 12 — 18. 9 without leave being obtained on an application in Chambers. (1st April, 1867; Ord. 6.) (Eng. Gon. Ord. 1, r. 22) In practice thia Order has not been very strictlj' followed. The time allowed by Ord. 10 is somewhat short, especially when the judgment or order is pronounced on circuit. But where any party objects to the order being drawn up after the time prescribed has elapsed, effect must be given to the Order. After the lapse of four years, notice of the application to issue the order was required to be given to all parties : Re Forrester, Messnier v. ForreMer, 1 Chy. Ch. R. 29. 12. No notice to settle minutes, or pass an order, is Notice to setue , or pass, not to to be given unless by direction of the Registrar. (6th Je given except o , •/ o V lay direction of Feb. 1865 ; Ord. 22.) Registrar. The Registrar may dispense with notice of settling or passing if he think fit ; but except where the order is simple, notice is usually required to be given ; the minutes must be first prepared, and left with the Registrar, and an appointment obtained from him. (See Ord. 596, and Ord. 8, ante. ) An appointment served one day for the next is sufficient : Re Christmas, 19 Beav. 519. According to the former practice in Chancery, wh^n the decree was passed by the Registrar it was necessary, in the next place, to enter it in the books in the Registrar's ofiice ; passing and entering the decree were essentially requisite to its perfect com- pletion, and necessarily antecedent to any subsequent proceedings being had thereon. See Ord. 9, ante. Where the decree had been drawn up and not entered, orders allowing the entry to be made nunc pro tunc, even after a considerable lapse of time, have been granted : Lawrence v. Richmond, 1 J. & W. 241 ; Donne v. Lewis, 11 Ves. 601. But where the decree had not been drawn up, and the defendant would be prejudiced, the order was refused : Drum- mond V. Anderson, 3 Gr. 150. 13. Where a notice is given to settle minutes, or to Procedure where pass an order, and the party served attends thereon, default. but the party giving the notice does not attend, or is not prepared to proceed, the Registrar may proceed ex parte to settle the minutes, or pass the order, or may in his discretion order the party giving the notice to pay to the other the costs of his attendance ; or if a party served asks for delay, the Registrar may grant 2 10 Chancery Orders 14 — 23. the delay on such terms as he thinks reasonable as to payment of costs or otherwise. (6th Feb., 1805 ; Ord. 2.3.) {Eng. Con. Ord. 1, r. 38.) This Order is now in force as qualified by Ord. 596 post, wMoh requires an appointment to be given by the Registrar for settling minutes, and such appointment ia not to be issued until the minutes are prepared and left with the Eegistrar. Ord. 14-16. Orders 14-16 conferred upon the Accountant the powers of the Master in Ordinary. They were rescinded by Ord. 559, and sub- sequently revived by Ord. 598, they are now obsolete. Ord, 17-22. Orders 17-22 related to the duties of the Judge's Secretary, and were rescinded by Ord. 559. CLEEK OF RECORDS AND WRITS, cierkof Reoorda 23. The Clerk of Records and Writs is to perform and Wnts, duties ^ ^ "*■ the duties heretofore performed by the Registrar and his Clerks in relation to the several matters herein- after mentioned, that is to say : 1. Receiving, filing, and custody of, pleadings, reports, depositions, affidavits, and other papers and proceedings, and making entries thereof in the proper books. 2. Amending bills. 3. Entering consents, and notes pro confesso. 4. Setting down causes. 5. Certifying proceedings. 6. Examining and authenticating office copies of pleadings and other proceedings. 7. Preparing and issuing writs, commissions, and orders of course. 8. Preparing certificates for registration, procuring the Registrar's signature thereto, and issuing the same. 9. Attending on the opening of commissions. 10. Attending with records and exhibits on the Judges of the Court, or elsewhere. 11. Inrollment of decrees or orders. Chancery Order 23. 11 12. The care and custody of all documents ordered to be deposited for safe keeping, or produced under any order of Court. 13. The care and custody of the books kept under the Act for Quieting Titles, and making the necessary entries therein. 14. Preparing certificates of "the filing of petitions, procuring the Registrar's signature thereto, and issuing the same. 15. Transmitting petitions to the proper Referee. 16. Entering and issuing certificates of title and conveyances, granted under the Act. By Order 35 every Deputy Registrar was given all such powers Powera of Dep. and authorities in relation to suits in which the bill was filed in his K^B'strars. office, as belongs to the Clerk of Eecords and Writs. Notwith- standing this Order, however, certain duties were discharged exclu- sively by the Clerk of Eecords and Writs in reference to all suits, no matter where the bill was filed ; a. g., All causes to be heard in Toronto, either at the sittings for examination of witnesses and hearing of causes, or at the weekly sittings of the Court, were ' entered with the Clerk of Eecords and Writs. So also the issue of commissions to take evidence, and attending the opening thereof, the inrollment of decrees and orders, the issuing of orders of course for the delivery and taxation of solicitors' bills of costs, were duties discharged by the Clerk of Records and Writs alone, and not by any of the Depiity Eegistrars. By Rule 8. C. , 417 the Deputy Clerks of the Crown, and Local Eegis- Eeputy Cleitis of trars, of the High Court of Justice have now the powers and duties of Local Registrars, the former Deputy Eegistrars in Chancery. powers of. Clause 2, authorizing amending of bills, is now obsolete, except as to causes pending when The Judicature Act came in force ; but the Clerk of Eecords and Writs, Deputy Eegistrars, Deputy Clerks of the Crown, and Local Eegistrars are now, under the new proce- dure, the proper officers to amend writs and pleadings issued from, or filed in, their offices. Clause 3 as far as it relates to entering notes pro confesso, and clause 11, except as to causes pending when Tlie Judicature Act came in force, are now obsolete. . Orders of course, referred to in clause 7, are those orders which Ordtrs of course, according to the practice of the Court may be obtained without an actual motion therefor. The most common orders of this kind are ; 1. Orders for security for costs, where the writ or other proceeding 12 Chancery Order 24. by which an action is commenced discloses on its face, that the plaintiff or person asking any relief, (see /. A. a. 91)is resident out of the jurisdiction. RuU S. C. 431, Holmested's Manual Pr. 222. S. Orders to produce, nader Sules 8. O. 222, 513. 3. Orders for the appointment of guardians to infants when neces- sary. See Holmested's Manual Pr. 55 ; Ord. 610 ; Rule S. 0. 36. 4- Orders to continue proceedings where the death or marriage of parties, or the transmission of interest pendente lite, renders it necessary for other persons to be made parties to the action. 5. Orders for sheriffs to return writs. 6. Orders for leave to plaintiff, or defendant, tn change his solicitor, or solicitor and agent, — or to prosecute, or defend, in person, instead of by a solicitor, — or to enable one of several plaintiffs to appoint a solicitor for the purpose of making an application separate from his co-plaintiff, — or to enable a solicitor of a plaintiff, or defendant, to change his agent. 7. Orders for the delivery and taxation, or for taxation alone, of solicitors' bills of costs, on the application of a client. Orders for deliv- ery and taxation are still issuable in the Chancery Division, by the Clerk of Records and Writs. But Deputy Registrars, Deputy Clerks of the Crown, and Local Registrars, have now power to issue orders of course on prcecipe for taxation of bills of costs already delivered, on the application of the client within a month from the delivery there- of, or on the application of the solicitor at any time after such month. See Rule S. C. 4Ai, Holmested's Manual Pr. 185, 186. Although orders of course for delivery and taxation, are issuable by the Clerk of Records and Writs, — under Rule 8. C. 444, orders of course for taxation alone, are to be issued by the Registrar. For other orders issuable as of course, see Daniel's Pr., 5th ed., 2002-2012. All orders of course are to be drawn up on prmcipe. See Ord. 25. Certifioates of officers as to proceedings in their offices are con- clusive ; and afl&davits cannot be read to contradict them : Beavan v. Burgees, 10 Jur. 63; FoUy^. Griffith, 2 Moll. 318. Solicitors' and 24. The Clerk of Records and Writs is to keep in agents' book. , his office a book to be called "The Solicitors' and Agents' Book," in which each solicitor residing else- where than in the City of Toronto is to specify the name of an agent being a solicitor of this Court, and having an office in the City of Toronto, upon whom pleadings, writs, notices, orders, appointments, war- rants, and other documents and communications may be served. (3rd June, 1853; Ord. 4S, s. 1.) Chancery Orders 25 — 30. - 13 See post Ord. 42, as to consequences of not complying with this Order. 25. All orders of course are to be drawn up by the orders of course Clerk of Records and Writs upon prcecipe. (3rd JvLB.e,prcmpe. 1853 ; Ord. 43, s. 9.) The order is not only to be drawn up by the Clerk of Records and Writs but is also to be issued by him. See Ord. 595. The allegations in the prcecipe upon which an order of course is issued must be true, and no material facts must be suppressed ; otherwise the order may be set aside, although on the merits it might have been properly issued : Danl Pr. , 5th ed. , 1436 ; Brignall V. Whitehead, 30 Beav. 229; 8Jur. N.S. 183; and see Ee ffowland, 4 Chy. Ch. R. 6. In De Feuchires v. Dawes, 11 Beav. 46, it was said by Lord Lang- dale that Lord Cottenham established the rule that when an ex parte injunction is obtained on a suppression of material facts, it will be dissolved on that ground alone, although it might appear on the application to dissolve that there were ample merits to sustain it, and this rule, it would seem, is applicable to all orders of course : Richards y. Scarborotigh, 17 Beav. 83. 26. On Thursday in each week the Clerk of Records cause ust. and Writs is to make out and transmit to the Regis- trar a list of all causes and matters set down for hear- ing during the ensuing week. The list of causes here referred to is posted up at Osgoode Hall, outside the Court Room, and the cases are taken by the Court in the order in which they appear upon the list. Orders 27-28 ; required the Clerk of Records and Writs to pay Ord, 27-28. into Court, the fees received by him on account of " The Suitors' Fee Fund, " these fees were afterwards abolished by 41 Vict., c. 8, s. 5 (0), and these Orders are therefore now effete. 29. The Clerk of Records and Writs is to perform cierk of Records J^ and Writs to such other duties as the Court by General Order, or p'^'?™ "*''" "' ' duties. otherwise, may from time to time direct. See Ord. 632, which provides that bonds by committees in lanacy matters are to be filed with the Clerk of Records and Writs. 30- All affidavits and papers filed with the Regis- Affidavits, &c., • /^i 1 -. . ■, ?. filed -with Regis- trar, or in Chambers, arq, to be transmitted to the office trar to be trans- _.^ ^ - raitted to Oierk of the Clerk of Records and Writs the same day. ofR. andw. All affidavits and papers filed with the Registrar, Assistant Regis- 14 Chanceey Oedeks 31 — 34. trar, or Judgment Clerks, in actions pending in the Chancery Division are transmitted to the Clerk of Records and Writs, and are preserved in his ofl&ce. Orel. 31. Order 31 imposed on the Registrar's Clerk the duty of Ledger Clerk to the Suitors' Account. This Order was rescinded by Ord. 558. ENTERING CLERK. Entering Clerk. 32. The Entering Clerk is to note in the margin of tlae book the day of entering a decree or order, and is at the foot of the decree or order to note the same date, and the book in which the entry has been made and the pages of such book. (10th Sept., 1866 ; Order 6.) As so entry of judgments see Rules S. C. 325-327 . Eeputy Regis- trars. Solicitors and Agents' tools. DEPUTY REGISTRARS. 33. Every Deputy Registrar is to keep in his oiEce a book to be called " The Solicitors' and Agents' Book," in which each solicitor residing elsewhere than in the County in which such Deputy Registrar's office may be, is to specify the name of an Agent, being a solicitor of this Court, and having an office in the City or Town where the office of such Deputy Registrar is situated, upon whom all writs, pleadings, notices, orders, war- rants, and other documents, and written communica- tions in relation to proceedings conducted in the office of the Local Master, or Deputy Registrar of such County, may be served. (3rd June, 1853; Ord. 44, s. 6.) This Order applies not only to the Deputy Registrars, but also to the Local Registrars. See Ord. 43, as to consequences of non-com- pliance with this Order. The Common Law Rules did not require the Deputy Clerks of the Crown to keep such books. See rules Q. B. & C. P., Nos. 136 and 137 post. See, however, C. L. P. Act, sec. 57, which appears to have contemplated the appointment of agents in the outer coun- ties in particular suits. It is possible this Order is now also binding on the Deputy Clerks of the Crown. 34- Local Masters, and Deputy Registrars, respec- tively, are to perform the duties of their several offices in the same manner, and under the same regulations, as the like duties are performed by the Master, and by Chancery Order 35. 15 the Clerk of Records and Writs, respectively ; and all orders, rules, and regulations, in force respecting theSus'""reirtf°g Master, and Clerk of Records and Writs, respectively, ornnlv", aSd and respecting the regulation of their respective offices, to^ppiy to Looaf are to be in force and applicable to the Local Masters, Registrars. and Deputy Registrars, respectively, in relation to such duties as they are hereby required to perform ; and the like sums and fees payable to the Master, and Clerk of Record and Writs, respectively, are to be payable to the Local Masters, and Deputy Registrars, respectively, in relation to similar matters; (3rd June, 1853; Ord. 44, s. 1.) Local Masters, and Deputy Registrars, under the former practice Whether Local in Chancery, were not at liberty to practise themselves in Chancery, practice— owiEre. nor were they even at liberty to practice in partnership with solici- tors practising in Chancery, although they might not actually share in the emoluments arising from such business : McLean v. Cross, 3 Chy. Ch. E. 432. Since the merging of the three Superior Courts into one, it is doubtful whether a Master can practice at all, even though he confine his practice to the Queen's Bench and Com- mon Pleas Divisions of the High Court ; as under the new system he is just as much an officer of those Divisions as he is of the Chan- cery Division ; but see Rule S. O. 422, from which it may be inferred, that it was not the intention of The Judicature Act to deprive them of the right of practising. The fees now payable to Deputy Registrars, Deputy Clerks of the Teea. Crown, and Local Registrars, are regulated by the old Common Law Tariff, and where there was no similar proceeding in the Queen's Bench and Common Pleas they are entitled to fees payable for similar proceedings under the Chancery Tariff : Eule S. O. 432 ; but as to officers paid by fees, see McGannvn v. Clarke, 19 C. L. J. 236 ; and in cases within the former Equity jurisdiction of County Courts, the Lower Scale Tariff of the Court of Chancery is still applicable. See Rule S. C. 515, and Ord. 563 post. The Deputy Registrars are paid by fees, and are entitled to re- ceive all fees payable under the tariff', in cash ; fees payable under any Statute not expressly requiring them to be paid in cash, must be paid in stamps. 35. Where a bill is filed with a Deputy Registrar, Duties of Master 1^ ■' ° ' and Dep. Regis- the Local Master, and Deputy Registrar, respectively, t'ji'^.TThere^biii in the County where such bill has been filed, are to Registrar. 16 Chancery Obder 36. have all such powers and authorities in relation to such suit as belong to the Master, and Clerk of Records and Writs, respectively. (3rd June, 1853 ; Ord. 44, s. 3.) The principle of this Order is still applicable in all the Divisions, but for Deputy Registrar must now be understood the officer by whom the writ of summons is issued, whether he is Deputy Regis- trar, Deputy Clerk of the Crown, or Local Registrar. Where a reference to a Master is required in any action, the plain- tiff is prima facie entitled to have it directed to the Master resident in the county where the writ issued, Macara v. Gwynne, 3 6r. 310. The reference may, however, be changed on a special appli- cation ; e. e/t,WBe-A\: •232 , E:r parte Bdton, 25 Beav. 36S Re Walton, 4 K. & J. 78. Country agent, 43. All Avrit.s, pleadings, notice?^, order.?, warrants, and when to be , ., t . , , • , • i, • l served. otlier documeiits, and wntten communications, wnicn do not require personal service upon the partj' to be affected thereby, may be served upon his solicitor residing in the county where such proceedings are conducted, or, where such solicitor does not reside in the county where such proceedings are conducted then ui)on the agent named in the " Solicitors and Agents' Book," provided for by Order 33. And if any such solicitor neglect to cause such entry to be ma,de in the " Solicitors and Agents' Book," the posting up a copy of any such writ, pleading, notice, order, warrant, or other document, or written communication, for the solicitor so neglecting as aforesaid, in the office of such Deputy Registrar, is to be deemed sufficient service. (3rd June, 1853 ; Ord. 44, s. 6.) See note to preceding Order. Indorsement of 44. Every party suing or defending in person is to name and ad- i-i n -ii -il'll dress of parlies cau.se to be indorsed orwritten upon eveiy writwnich he acting in person. , , ,.,, , ,, sues out, and upon every bill, demurrer, answer, or other pleading, or proceeding, his name and place of residence, and also (when his place of residence is more than three miles from the office where such pleading or other proceeding is filed) another proper place, to be called his address for service, not more than three miles from the said office where writs, notices, orders, warrants, and other documents, proceedings, and written communications, may be left for him. (3rd June, 1853; Ord. 43, s. 3.) This Order appears to be still in force and to apply to all the Divi- sions of the High Court, save as regards a plaintiff siting out a writ of summons in person, which is provided for by Rule S C. 19 ; and a defendant appearing in person to a writ of summons, which is pro- \ided for by Rules S. 0. 53, 54. Biiles S. C. 19 and 53, require that the address for service shall be within two miles of the office whence the writ issued. (See note to Ord. 40 ante.). This Order it will be observed is not qualified as Ord. 40 is by Ord. 41, which dispenses with the indorsement of the place' of busi- Chancery Orders 45 — 47. 21 ness of a solicitor on subsequent proceedings. Under this Order the place of residence (and address for service, when necessary), of a party suing, or defending, in person, must be endorsed on every writ sued out, or proceeding filed, by such party. 45. Where a party sues or defends in person, and no consequence of ■*■ '^ , , omisBion of address for service of such party is written or printed enaorsement. pursuant to the directions of Order 44, or where a party has ceased to have a solicitor, all writs, notices, orders, summonses, warrants, and other documents, proceedings, and written communications, not requir- ing personal service upon the party to be affected thereby, shall, unless the Court shall otherwise direct, be deemed to be sufficiently served upon such party, by posting up a copy thereof in the offilcfe of the Clerk of Records and Writs, or Deputy Registrar, where the bill is filed. But if an address for service is written or printed as aforesaid, then all such writs, notices, orders, summonses, warrants and other documents, proceedings, and written communications, shall be deemed sufficiently served upon such party if left for him at such address for service. This Order appears to be in force, but it would now require to be read as referring to the oflBce whence the writ of summons issued, instead of " where the bill is filed." The omission of a defendant's address, or address for service when necessary, in an appearance by a defendant in person, is expressly provided for by Ruk S. C. 54. The case of a party ceasing to have a solicitor is not expressly pro- vided for by the Sules of the Supreme Court, the provisions of this Order would therefore, in such a case, appear to be applicable in all the Divisions of the High Court. Order 46 required notice of filing an answer, demurrer, or replica- Ord. 46. tion to be served on the opposite party. It is now superseded by the B%i.les S. C, which require the pleading itself to be served : see Holmested's Manual Pr. 92. 47- Where an acceptance of service of any bill, soudtort acoep- ^ . J ' tance of service. order, or other proceeding, and an undertaking to answer or appear thereto are given by a solicitor, such acceptance and undertaking are to be equivalent to personal service upon the party for whom the same 22 Chancery Orders 48 — 49. are given, within the meaning of the Order requiring personal service, and an affidavit of personal service is in such case dispensed with. (30th Sept., 1866 ; Ord. .33.) Rules of S. C. as Thia Order appears to be still in force. Provision is expressly sei^ice^'*'"* °^ made by Rules S. C. 33, 71, for the acceptance of service of writs of summons : Holmested's Manual Pr. 52 ; as to other proceedings, of which service is accepted and an undertaking given to appear, the provisions of this Order would now seem to apply in all the Divi- sions of the High Court, soiicitort accep- 48- Admissions and acceptances of the service of a tance need not be ^ verifled. tjU^ Order, noticc of motion or other paper, upon the opposite solicitor, need not be verified by afiidavit. (3rd June, 1853 ; Ord. 40, s. 1.) See Rules S. C. 33, 71, as to acceptance of service of writs of summons. Under Rule, S. G. 71, acceptances of service of writs of summons, and undertakings to appear, require to be verified by afiSdavit, and to that extent it would seem this Order is abrogated, but as to all other acceptances and admissions of service the Order would seem to be still in force as to all actions, in the Chancery Division, and possibly also, in the other Divisions, of the High Court. Change of eoiici- 49- A party suing or defending by a solicitor, shall not be at liberty to change his solicitor in any cause or matter without an order of the Court for that purpose, which may be obtained on prcecipe; and until such order is obtained and served, and notice thereof given to the Clerk of Records and Writs, or Deputy Regis- trar with whom the pleadings are filed, the former solicitor shall be considered the solicitor of the party. This Order is still in force. An order was also necessary to change the attorney at law. (See Rule 4, T. T. 1856 post. ) But at law the order could only be obtained on motion. It is presumed that the practice of obtaining the order as of course on prcecipe will now apply in all the Divisions. Order to change Older to Change Solicitor. — An order to change the solicitor is 'el'e^ry^''™ necessary, not only where the client desires to discharge his sol-oitor in an action, but also where the solicitor discbarges himself : See Griffiths V. Griffiths, 2 Hare 587 ; 7 Jur. 573. But no order is neces- sary to enable the client to appoint a new solicitor, in place of one Chancery Order 49. 23 deceased ; Whalley v. WhalUy, 22 L. J. Chy. 632 ; Akhin v. Buffalo & L. H. R'y Co., 2 Chy. Cli. R. 45, In the latter case, however, notice should be given of the appointment of the new solicitor to the officer with whom the pleadings are filed, and also to the opposite party. Braith Pr. 564, 565 ; Bank of Montreal v. Harrison, 4 P. R. 331. Until an order to change the solicitor is obtained and served, ser- vice on the solicitor on the record is good, even though he has ceased to act, and though a new one has been appointed : Davidson v. Leslie, 9 Beav. 104 ; MWight v. King, ib. 161. Under the former practice at law, the attorney could not be Payment of costs changed by the client, unless his costs were first paid : Witt v. Airie.s, prec^^en"*'*'"" 11 W. R. 751 ; but in Chancery the rule was otherwise : Meyers v. Bobertson, 1 Gr. 439. This is one of those matters in which the rules of Equity, and the rules of the Common Law differed, and therefore under J. A.s. 17, ss. 10, the rule of Equity is now to prevail. Orders to Change solicitor will now be granted in all the Divisions of the High Court of Justice, without any provision as to the payment of costs : See Grant v. Holland, 3 C. P. D. 180. Where there is a joint retainer, an order to change the solicitor on the appHcation of some or one of the clients only, is irregular : Re Norwich and Norfolk Building Society, 22 W. R, 856 ; Wedder- bum V. Wedderbum, 17 Beav. 158. All material facts must be disclosed on the application for an order Material facts of course, otherwise it wiU be irregular and may be set aside ; b. g. , ™os°ea. ° '^" the existence of a special retainer for a term of years unexpired : Richards V. Scarborough Market Co., 17 Beav. 83 ; or the fact of the solicitor being mortgagee of the client's share in the fund in question : Jenkins v. Bryant, 3 Drew 70. Where, however, a solicitor in ap- plying for an order to change a solicitor, relying on his client's state- ment that she was unmarried, so represented her, which statement turned out to be untrue, the Court though setting aside the order refused to direct the solicitor to pay the costs, emphatically declaring that the Court never had ' ' made a man pay costs for believing the word of a woman :" Thomas v. Finlayson, 19 W. R. 255. Where special circumstances are disclosed in the prcecipe for an order of course, the officer may refuse to issue the order and may re- quire a special application to be made. After an order of course to change the solicitor has been issued, if SettiDg aaide the latter object to the order, he should not apply on prmcipe for an °^^'^- order to re-appoint himself, but should move on petition to set aside the order : Topping v. Sear-ton, 2 H. & M. 205. Where the solicitor dies and his client neglects to name a new Subpoena to ap- solicitor he may be served with a subpoena to appoint a new solicitor. so™citor when For form of subpcena (see Daul's Forms, 3rd ed.. No. 2129 ; Braith Pr. necessary. 264. ) If after the service of the subpcena he still neglects to appoint a solicitor, he is liable to attachment, or leave may be given to pro- 24 Chancery Order 49. Applioation by one of several plalDtifls. Party acting iu person desiring to appoint a so- licitor. Order to change, when a discharge of solicitor by client. Where order unnecessary. Lien of solicitor. ceed without further notice to such party : Gibson v. Itigo, 2 Phil. 402 ; Smith Pr., 7th ed., 126. Where one of several plaintiffs desires to make an application in the action separately from his co-plaintiffs, he must obtain an order of course giving him leave to appoint a solicitor for that express pur- pose : Danl Pr., 5th ed., 1724. Where a party sues or defends by a solicitor, and afterwards desires to sue or defend in person, an order giving him leave tp do so must be obtained : Danl Pr., 5th ed., 1724. But when a party sues or defends in person and afterwards appoints a solicitor, no order is necessary, ih. 1725, but notice should be given to the officer with whom the pleadings are filed, and also to the opposite party. Proceedings taken by a new solicitor without an order when one is necessary, or by a suitor in person when he has a solicitor on the record, are irregular and will be set aside : Rathbxirn v. Huijlien, 3 Chy. Ch. R. 160 ; Yeatman v. Snow, 42 L. T. 502. An order to change solicitor is prima facie a discharge of the former solicitor by the client : Webster v. Le Hunt, 9 W. R. 804. But it is not a discharge of the solicitor by the client where it is taken out in consequence of the prior refusal of the solicitor to act, and a solicitor will be considered to have discharged himself, on the bankruptcy of himself, or the firm of which he is a partner : Re Moss, 2 L. R. Eq. 345 ; or by being arrested or detained in custody : i?e Williams, 3 D. F. & J. 104; 28 Beav. 465 ; Scott v. Fleming, 9 Jur. 1085 ; but not merely by being in embarrassed circumstances : Re Smith, 9 W. R. 396. So also a firm of solicitors will be deemed to have discharged the client, where the firm is dissolved ; and no arrangement can be made by the solicitors for the transfer of the client's business to one of their number without his consent amouut- ing to a new retainer : Cholmondeley v. Clinton, 19 Ves. 261 ; GriffitJis V. Griffiths, 2 Hare 587 ; Slater v. Stoddard, 6 P. R. 299 ; Alchin V. Buffalo & L. H. R'y Co., 2 Chy. Ch. R. 45. Where any new party is brought into an action by order to con- tinue proceedings by reason of the death of, or transfer of interest by, any of the parties : such new party is not obliged to employ the solicitor by whom the deceased person, or transferror was represented, but he may without order employ a new solicitor, but notice of such new solicitor being so employed must be given to the officer with whom the pleadings are filed, and also to the opposite party : Danl Pr., 5th ed., 1725 ; Simmonds v. Great Eastern R'y Co., 3 L. R. Chy. 797; but the assignee of the plaintiff in a creditor's suit cannot appoint a new solicitor except on special applioation : Topping v. Searson, 2 H. & M. 205. Where the solicitor is changed by the client, the original solicitor is still entitled to a lien on any fund recovered in the cause, and is entitled to be paid his eosts next after the costs of the solii.itor by Chanceky Order 49. 25 whom tlie suit is concluded : Clark v. Eccles, 3 Chy. Ch. R. 324. Where a solicitor is discharged by the dissolution of a firm «£ ®S'f°|,'^'' S.'"'°' which he is a member, he is not at liberty to act for the opposite for oppositeparty party : CholmondeUy v. Clinton, 19 Ves. 261 ; Law Times, June 3, '"^''^' 1882, p. 82 : but when he is discharged by his client he cannot be restrained from acting for the opposite party, por the latter from em- ploying him : LUtle v. Kingsioood tb Parhfield Colliery Co. , 20 Ch. D. 733 ; 47 L. T. 323 ; 52 h. J. Ch. 66 ; but the solicitor may be restrained by injunction from divulging the secrets of his former client to the opposite party, either in the same transaction, or any other flowing thereout, or connected therewith : 76., and seeDavies v. Clough, 8 Sim. 262, 267 : Grissell v. Peto, 9 Bing. 1 ; Johnson v. Marriott, 2 Cr. & M. 183. Lien of Solicitor on Books and Papers-— A solicitor has a i-'"." °° '"'°''« hen on the books and papers of his client, which have come to him in the course of business in his professional capacity. This lien, however, is a mere right to retain the documents until his costs are paid, and cannot be actively enforced : Bozon v. Bol- laml, 4 My. & Cr. 354. In the absence of any agreement to the contrary, the lien is general, and attaches for all costs due from the client, and is not confined to the costs incurred in the particular business in which the documents came into the solicitor's hands : Re Faithful, 6 L. K. Eq. 325; Bozon v. Bolland, supra; Richards v. Platel, Cr. &Ph. 82 ; Worrall v. Johnson, 2',Jac. & W. 214, Ex parte Sterling, 16 Ves. 257 ; PriswellY. King, 15 Sim. 191 ; Colmer v. Ede, 19 W. E,. 318 ; Be Messenger, 3 Ch. D. 317. The solicitor cannot acquire any greater right of detainer, than the client had himself, and the lien is therefore subject to the rights and equities of those claiming by title paramount to that of the client : Francis v. Francis, 5 D. M. G. 108 ; Stedman v. Webb, 4 My. & Cr. 346 ; Cltitton v. Pardon, T. & E. 304 ; Molesworth v. Bobbins, 2 J. & Lat. 358 ; Pelly v. Wathen, 1 D. M. G. 16 ; 7 Hare 351 ; Blunden v. Desart, 2 Dr. & W. 405 ; Bell v. Taylor, 8 Sim. 216 ; Baher v. Hen- derson, 4 Sim. 27 ; Warbutton v. Edge, 9 Sim. 508 ; Be Mosely, 15 W. E. 975 ; 7oung v. English, 7 Beav. 10 ; Stennett v. Aruyn, 2 Chy. Ch. E. 218 ; Re Union Cement and Brich Co., Ex parte, PulbrooTc, 4 L. E. Chy. 627 ; and where the client would be bound to produce the documents in evidence on the demand of third parties, the solici- tor cannot refuse to produce them on the ground of his lien : Hope V. Uddell, 7 D. M. G. 331 ; 20 Beav. 438 ; Fowler v. Fowler, 44 L. T. 799, SOL. J. Ch. 686. But third parties whose rights are acquired under the client sub- sequent to the creation of the lien, have no greater rights than the client himself had at the time they acquired title : Gill v. Gamble, 13 Gr. 169; 2 Chy. Ch. E. 135. The solicitor, however, cannot 4 26 Chancery Order 49. claim a lien, against such third parties, for costs incurred by him subsequently to their acquiring their rights : Blunden v. Desart, 2 Dr. & W. 405. Taking security, The lieu is superseded by the solicitor taking security for his costs : on len. Qg.^uf,ii y Simpson, 16 Ves. 275, but only to the extent of the secu- rity : Watson v. Lyun, 7 D. M. G. 288, and ceases altogether on payment, and the solicitor cannot then retain documents on the ground that a third party claims an interest in them : lie Emma Mine, Ez parte Turner, 24 W. E.. 54. The lien may also be lost by the solicitor assigning his biU of costs to a third party : Reesor v. Ella, 7 P. R. 371. Although ordinarily the documents cannot be taken out of the solicitor's hands until the lien is satisfied, the client is nevertheless entitled to inspect them: Lockett-v. Gary, 10 Jur., N. S. 144; and where the circumstances are pressing, an order may be made for delivery of documents in a discharged solicitor's hands before pay- ment of his bill, provided money is brought into Court sufficient to satisfy his demand : Re South Essex Eq. Investment and Advance Co., 46 L. T. 280i When a firm is changed by the introduction of a new partner, there is no lien on papers delivered to the new firm for costs due the old firm : Re Forshaw, 16 Sim. 121. Toronto agents, as against their principals, have a general lieu for their agency bills on papers placed in their hands by their prin- cipals ; and the lieu is not lost even though the relationship of prin- cipal and agent is dissolved by the agent : Re Attorney, 7 P. E. 311 ; Re A. B. & C, 14 C. L. J. 142 ; Re Gross, 4 Dhy. Ch. R. 11. Difference be- There is an important difference in the right of lien, of a solicitor lie™of solicitor "^ ^^ action who discharges himself, and one who is discharged by his wlio is discharg'd client. charges himsell. When the solicitor discharges himself, he is bound to deliver up the papers in the action to the new solicitor, upon the latter under- taking to hold them subject to his lien for what, if anything, shall be found due on taxation of his bill ; and to proceed with the cause with due diligence, and to redeliver the papers within ten days after he shall cease to have occasion for them, if the . lien be not sooner satisfied : Colegrave v. Manley, T. & E. 400 ; Heslop v. Metcalf, 3 My. & Gr. 183; Wilson v. Einmett, 19 Beav. 233; Cane v. Martin, 2 Beav. 584 ; Robins v. Ooldingham, 13 L. E. Bq. 440 ; Ley v. Brown, I Chy. Ch. R. 179; Merrewetlier v. Mellish,JZ Ves. 161 ; Mayne v. Hawkey, 3 Sw. 93 ; Webster v. Le Hunt, a W. E. 804 ; Oommerell V. Poynton, 1 Sw. 1. The solicitor cannot in such a, case require the client to undertake to proceed to a taxation of his bills : Moir v. Mudie, IS. & S. 282. And if he refuse to deliver up the papers to the new solicitor, on his undertaking as above mentioned, he may be ordered to pay the costs of an application to compel him Chancery Order 49. 27 to do so : Robins v. Goldingham, supra. A solicitor who declines to proceed with an action until his costs are paid, in effect dis- charges himself : lb., and see Se Lewis, Law Times, 1 April, 1S82, p. 387. And so the dissolution of the firm of solicitors engaged by the client, or the arrest or detention in custody, or bank- ruptcy of the solicitor, works a discharge of the client by the solicitor, vide supra. But where the client dies, or his interest is transferred by assignment or otherwise, and an order is made to continue the proceedings in' the name of some new party who names a new solicitor, in such cases the solicitor is deemed to be discharged by the client' : see Se Moss, 2 L. R. Bq. 345. When the solicitor is discharged by the client he cannot generally Discharge by be ordered to deliver up the papers, until his hen has been satisfied : Ee Faithful, 6 L. E. Eq. 325 ; Griffiths v. Griffiths, 2 Hare, 587 ; Bozon V. BolLand, 4 My. & Or. 354, unless it appear that there is strong ground for beheving that there is nothing due the solicitor : Re Sevan & Whitting, 33 Beav. 439. Nor is the solicitor in such a case bound even to produce the papers for the purpose of the cause, until his biU is paid : Lord v. WormleigMoii, Jac. 580 ; Redfearn v. Sowerby, 1 Sw. 84 ; Robins v. Goldingham, 13 L. E,. Eq. 440. But where the discharged solicitor neglects to deliver his bill of costs within the proper time, he may be ordered to deliver up the papers subject to his lien thereon : Oooper v. Hewson, 2 Y. & C. C. C. 515. And where the action is one for administration in which the rights of third parties are concerned, the solicitor, though discharged by his client, may be compelled to deliver up the papers necessary for the prosecution of the action, on the usual terms : Re Boughton, Boughton v. Boughton, 48 L. T. 413 ; Belaney v. Ffrench, L. K. 8 Chy. 918 ; 29 L. T. N. S. 706. Lien on Fund. — -A solicitor has not only a general lien on his Lien on fuod. client's papers for all costs due to him, but he has also a particular lien for the costs of proceedings to recover a fund, upon the fund recovered, or ordered to be paid : Lann v. Church, 4 Mad. 391, and if the fund actually reaches the solicitor's hand he is entitled then to retain it until his costs, not only of the action in which the fund ' is recovered, but all other costs are paid, that is so far as his client's interest in the fund extends : Davidson v. Douglas, 15 Gr. 354 ; Hall V. Laver, 1 Hare, 571. The solicitor may give notice to the opposite party not to pay the money until his costs are satisfied : Cowell v. Simpson, 16 Ves. 275 ; and see Sympson v. Prothero, 5 W. R. 814. And this lien is not lost by the discharge of the solicitor by the client, or by the act of God, pending the suit ; thus where the plaintiff assigned his interest in the suit, and the assignee named a new solicitor, the first solicitor was held entitled to a lien on the fund ultimately recovered and to feat lieu. 28 Chanceey Okder 49. payment of Ms costs thereout, next after those of the solicitor by whom the suit was concluded : Clark v. Eccles, 3 Chy. Ch. R. 324 ; and see Kellett v. KeUy, 5 Ir. Eq. R. 34 ; Bozon v. BoUand, 4 My. & Gr. 354 ; Gormach v. Bekhj, 3 D. & J. 157. Where the sohcitor declines to act he has no lien upon a fund in Court : Cressioell v. Byron, 14 Ves. 271. No lien where The lien on a fund may he actively enforced : Bozon v. BoUand, solicitor refuses 4 My^ ^ Q^ 354 xhe solicitor may obtain a stop order : Hobson v. Shearwood, 8 Beav. 486 ; or an order for payment of his costs out of any money in Court payable to his client, or applicable to the payment of the costs : Wardell v. Trenouth, 8 P. R. 142. But a solicitor can have no higher claim against a fund by virtue of his Lien may be Yiea. than that of his cHent ; and if the client would not be entitled actively enforced. ' , . .. . to payment of his costs out of the fund neither will his sohcitor ; although it may have been recovered by means of proceedings taken by him : Francis v. Franci% 5 D. M. G. 108. Client cannot de- The client cannot assign the fund in Court so as to defeat the soli- citor's lien, even to a purchaser for value, without express notice : Haymes v. Cooper, 33 L. J., N. S. Chy. 488. Neither can the cHent release the adverse party from the payment of costs ordered to be paid, so as to defeat his solicitor's lien : Ex parte Bryant, 1 Mad. 49, But the lien may be defeated by a bona fide compromise by the parties to the action: McVie v. Ifope, Law Times, 23rd June, 1883, p. 145 ; but a collusive compromise will not have that efifeot : Beames Costs, 312, 313 ; Langle v. Fetterly, 5 U. C. R. 628 ; Griggs V. Meyers, 6 U. C. R. 532 ; Connors v. Squires, 2 P. R. 149 ; and see Plant v. Stone, 9 U. C. R. 458 ; Ex parte Morrison, 4 L. R. Q. B. 153 ; Ex parte Games, 3 H. & C. 294 ; Brotm v. Conant, 2 P. R. 208 ; Smith v. Thompson, 5 P. R. 166 ; Morgan v. Holland, 1 P. E. 74 ; Barrett v. Barrett, 18 C. L. J. 56. But when in a suit for foreclosure the plaintiff and defendant compromised the suit, the plaintiff paying the defendant $200 in consideration of his releasing his equity of redemption, the defendant's solicitor was held to have no lien on the $200 : Brownscomb v. Tully, re Fairbairn, 3 Chy. Ch. R. 71. An agent of a solicitor has a hen on a fund recovered, and payment by the client to the agent in order to obtain his papers, is a good payment as against the principal solicitor ; Se Cross, 4 Chy. Ch. R. 11 ; but the lieu of the agent is no greater than that of the principal solicitor , and if the latter have no claim upon the fund as against his client, the agent may be compelled to pay it over upon a summary application on behalf of the client : Se Edwards, 45 L. T. 578. Where money is standing to the separate account of the party to a cause, he may apply for payment out by a new solicitor, without an order changirg the solicitor : Waddilove v. Taylor, 17 L. J. Ch. 384. But where the new solicitor deHvered the cheque to the client Chancery Orders 50 — 52. 29 before the lien of the former solicitor was satisfied, he was ordered to pay him the amount of his lien : McPhatter v. Blue, 15 C. L. J. 162. Effect of Lien on right of set-off between parties.— The lien Effect o| Uen^on of a solicitor cannot prevent a set-off of costs between the parties in the same action : Pringle v. Gloag, 10 Ohy. D. 676 ; Cameron v. Campbell, 12 TJ. C. Q. B. 159 ; Bricjham v. Smith, 17 Gr. 512 ; but see Wehb v. McArihur, 4 Chy. Ch. E. 63. But where a special lien was given by one of the parties to his solicitor, the right of set- off to the extent of the special lien thus created was held to be de- feated : Ross V. McLay, 7 P. E. 97. And the right of lien will also prevent a set-off of costs incurred in different actions, though be- tween the same parties aiid in relation to the same subject matter : Re Harrald, 48 L. T. 352. As to the right of the taxing officer to set-off costs see Rule 8. C. 436 : Barker v. Hemming, 5. Q. B. D. 609 ; Guthhert v. Commercial Travellers' Association, 7 P. R. 255. No Lien on Estate recovered. — In Ontario a solicitor is not No lien on estate entitled to any lien on an estate recovered through his instrumen- tality : Shaw v. Neale, 6 H. L. C. 581 ; but see Morgan v. Holland, 7 P. R. 74. In England since 23 & 24 Vict. cap. 127, sec. 28 (Impl.j, he has a lien on all property recovered by him for his client. Orders 50, 51, provided for transmitting to the other Courts a ord. 60-61. certificate of every order striking a solicitor off the rolls, and also for striking off the Rolls of the Court of Chancery, any sohcitor, certified to have been struck off the RoUs of Attorneys. These Orders are now obsolete, and an order striking a solicitor off the rolls applies to all the Divisions of the High Court. (See Re Martyn and Re Solici- tor, 1 Charley's Notes of Cases, p. 66, and see Judicature Act, s. 74). 52. Where a case appears justifying or requiring by striking solicitor the practice hitherto, an order against a solicitor that he be struck off the Roll of Solicitors, unless he shall, before a time therein limited, show unto the Court good cause to the contrary, it shall be competent for the Court, in lieu thereof, to issue an order calling upon the solicitor to answer the matters appearing on affi- davit or otherwise. Instead of an order to shew cause being obtained, it would seem that under the present practice, the proper course is to serve notice of motion on the solicitor : see Rule S. C. 404, 405 ; the leave of the Court must be first obtained. See Rule S. C. 411, Holmested's Man- ual, Pr. 201. In Burton v. Earl of Chesterfield, 9 Jur. 373, it was said that the motion could not be made, calling on an attorney to answer the 30 Chanceey Order 52. af&davits and at the same time to show cause why he should not he struck off the rolls ; and in that case the rule was confined to calling on him to answer the affidavits. In a later case, however, the rule nisi was granted in the double form : Re Blahe, 3 E. & E. 34. Where the motion is confined to calling on the solicitor to answer affidavits simply, and the Court is of opinion that his answer is insufficient, the practice at law has been to enlarge the motion to a future day, intimating to the attorney that he may be further heard on that day, why he should not be struck off : Re Wright, 12 0. B. N. S. 705 : Re H. 31 L. T. N. S. 730. In order to give the Court jurisdiction to entertain an application for a solicitor to answer matters contained in an affidavit, or to strike him off the rolls, it is not necessary that the misconduct of which he is accused should arise strictly between solicitor and client : Re Aitlcen, 4 B. & Aid. 47 ; Re Attorney, 39 U. C. Q. B. 171 ; Re Knight, 1 Bing. 91 ; Re Blake, 3 E. & E. 34 ; Re Hill, 3 L. R. Q. B. 543 ; Re Chandler, 22 Beav. 353 ; and see Re Cutis, 16 L. T. N. S. 715 ; Re Keays, 13 G. P. 282. Where in the course of a cause, evidence of fraudulent conduct on the part of a solicitor is brought to light, the Court may sua sponte direct proceedings to be taken against the offending solicitor : Good- win V. Oosnell 2 Coll. 457, 462 ; Wlieatley v. Bastow, Re Collins, 7 D. M. G. 261, 588 ; Re Toms, 3 Chy. Ch. E. 204 ; Re Currie, 25 Gr. 338 ; Re Solicitor, 27 Gr. 77 ; Tkorndyke v. Bunt, 5 Jur. N". S. 879. A solicitor may be struck off the rolls for fraudulent conduct as a trustee : Re Chandler, supra, where the application was made by the cestui que trust ; and see Tkorndyke v. Hunt, supra ; Dolland v. Johnson, 2 Jur. N. S. 633 ; or for fraudulently abusing the confidenca of a client : Re Martin, 6 Beav. 337 ; Re J. C. M. & J. M. 24 W. R. Ill ; or for obtaining a client's money to discharge alleged liabi- lities of the client which did not exist : Re H. 31 L. T. N. S. 730 ; or for getting a false affidavit sworn, and without authority instruct- ing counsel to consent to payment of 'money out of Court : Wlmatley V. Boston), 7 D. M. G. 261, 558 ; or for falsely representing an in- junction to have been granted : Kimpton v. Eve, 2 V. & B. 352 ; or for making an interlineation in an affidavit after it had been sworn : Erskine v. Adeane, 18 Sol. Jour. 573, 10 0. L. J. 209 ; or for commit- ting perjury, Seton 652 ; or for revealing the secrets of a client : Re Outts, 16 L. T. JST. S. 715 ; Cholmondeley v. Clinton, 19 Ves. 261. Where the application is made on the ground of fraud, the fraud must be clearly proved ; the Court will not infer an equivocal action to have been fraudulent : Re Stewart, 2 L. R. P. C. 88 ; Re S , 14 C. P. 323. Under R. S. 0., c. 140, s. 26, a solicitor may be struck off the rolls for default of payment of money received by him as a solicitor : Chanceey Orders 53 — 54. 31 Anon, 12 C. L. J. 204. But where considerable sums had got into the hands of a solicitor who made default in payment, but the client issued execution upon the order directing payment, it was held that he had treated the claim as a debt, and a subsequent motion to strike the solicitor off the roUs for non-payment was therefore refused : Re Fletcher, 28 Gr. 413. Repayment, pending a motion to strike off the rolls, of money frauduently obtained, is no purgation of the offence : Re H., 31 L. T. N. S. 730. But when a solicitor has been struck off, it is a con- dition precedent to restoration that he shall have made fuU restitu- tion, or made the best efforts in his power thereto, and satisfy the Court as to the propriety of his conduct in the meantime : Re Poole, 4 L. K. C. P. 350 ; Ex parte Pylce, 6 B. & S. 703. And the Law Society must be notified of any application to restore to the rolls, a solicitor who has been struck off for misconduct : Re Solicitor, 19 C. L. J. 234. In some oases the solicitor has been suspended from practice for a specified time, and not actually struck off : see Erskine v. Adeane, 18 Sol. Jour. 573 ; Re Hill, 3 L. R. Q. B. 543 ; Re Blake, 3 E. & E. 34 ; and see further as to proceedings against solicitors, Cordery's Law of Solicitors. Order 53 provided that no suit should be dismissed for misjoinder ord. 63. of plaintiffs, and is now superseded by Rule S. C. 103. 54- Wherever it appears to the Court that notwith-Mi^dnderof standing the conflict of intere.st in the co-plaintifiis, or the want of interest in some of the plaintiffs, or the existence of some ground of defence affecting some or one of the plaintiffs, the plaintiffs, or some or one of them, are, or is, entitled to relief, the Court may grant such relief, and may modify the decree according to the special circumstances of the case ; and for that purpose is to direct such amendments, if any, as may be necessary ; and at the hearing, before such amend- ments are made, may treat any one or more of the plaintiffs as if he or they were defendant, or defend- ants, in the suit, and the remaining or other plaintiffs was, or were, the only plaintiff or plaintiffs on the record. (3rd June, 1853 ; Ord. 31.) It is doubtful whether this Order is any longer in force. Rrile S. C. 90 seems to make express provision for the matter covered by it. That Rule is as follows : ' ' Where an action has been commenced in 32 Chancery Orders 55—56. the name of the wrong person as plaintiff ; or when it is doubtful whether it has been commenced in the name of the right plaintiff or plaintiffs, the Court or a Judge, if satisfied that it has been so com- menced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, may order any other person or persons to be substituted or added as plaintiff or plaintiffs upom such terms as may seem just".: and aeeBulesS.C. 103, 104, enabling the Court to add, or strike out, the names of parties as plaintiffs, or defendants : and see also Emden v. Carte, 17 Ch. D. 169 ; 44L. T. 344; Woodward -f. Shields, 32 C. P. 282. Or(^. 66. Order 55 provided that ' where there is a misjoinder of plaintiffs, and the plaintiff who has an interest has died, leaving a plaintiff on the record without any interest, the Court may, at the hearing of the cause, order such an amendment of the record as may appear just, and proceed to a decision of the cause, if it shall see fit ; and give such directions as to costs or otherwise as may appear just and expedient. ' This Order appears to be now obsolete, and superseded by the provisions of }iuks S. C. 103, 474. Oj^ 58 Order 56 provided for the appointment by the Court, of a person to represent an estate of which there should be no legal personal representative. E, S. 0. 0. 49 1'^i^ Order is virtually superseded by B. 8. 0. c. 49, o. 9, (p. 8- 8. 596, ) which applies to all the Divisions of the Supreme Court, and is as follows : — Appointment of " Where in any suit or other proceeding it is made to appear that person to repre- a deceased person who was interested in the matters in question has deceased person, no legal personal representative, the Court or a Judge may either proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent such estate for all the purposes of the suit or other proceeding, on such notice to such person or persons, if any as the Court thinks fit, either specially or by public advertisement ; and notwithstanding that the estate in question may have a substantial interest in the matters ; or that there may be active duties to perform by the person so appointed ; or that he may represent interests adverse to the plaintiff ; or that there may be embraced in the matter an adminis- tration of the estate whereof representation is sought ; and the order so made, and any orders consequent thereon, shall bind the estate of such deceased person in the same manner in every respect as if there had been a duly appointed legal personal representative of such person, and such legal personal representative had been a party to the suit or proceeding, and had duly appeared, and had submitted his rights and interests to the protection of the Court." This section enables the Court to take one of two courses, either (1) to proceed without a representative of the personal estate of a Chancery Order 56. 35 deceased person who may have been interested in the matters in question ; or, (2) to appoint some person to represent such deceased person's personal estate for the purposes of the action. Where the Court makes an order adopting either of these courses, the estate in question is bound and concluded by the proceedings as though it had been represented in the litigation by a duly appointed legal personal representative. Whenever, therefore it is necessary that the real estate of a No authority deceased person should be represented in any action or proceeding, one to'reprMent the Court has no power under this Statute, either to proceed in the realty absence of the real representative or to appoint any person to repre- sent such estate, so as to bind it by the proceedings. But in any case in which the right of the heirat-law, or next of kin, or of a class, shaE depend upon the construction which the Court shall place upon any instrument, and it shall not be known, or shall be difficult to ascertain who is, or are, such heir-at-law, next of kin, or class, and the Court shall consider that, in order to save expense, or for s ome other reason, it will be convenient to have the question of con- struction determined before such heir, next of kin, or class, shall be ascertained, the Court may appoint a peison to represent the heir, next of kin, or class, and the judgment of the Court is to be bind- ing on the parties so represented ; see EuleS. G, 99. And in every action the Court may now under Euk S. C. 103, deal with the matter in controversy, so far as regards the rights and interests of the parties actually before it. The appUoation under the Statute is usually made by ex parte Application un- motion in Chambers, but the order may be made at the trial of the <'«''^t**"*«i ^""^ action : Mendes v. Guedalla, 10 W. E. 485 ; Hewiston v. Todhunter, 22 L. J. Ch. 76 ; Se Peppiit, 4 Ch. D. 230 ; or on a motion for judg- ment : Gairdner v.Gairdner, 1 O.E. 184, and see Curtius v. Caledonian Fire and Life Ins. Oo. , 45 L. T. 662 ; or at a subsequent stage of the action where the party whose estate is to be represented, dies after the trial : McCarthy v. Arbuckle, 31 C. V. 48. Before the order is made notice is sometimes required to be given to the person, if any, who would be entitled to letters of administration : Gurtius v. Caledonian Fire Y^ *>s- Taylor, 22 L. J. Ch. 910 ; or where other persons of the same class were before the Court : Abrey v. Newman, 17 Jur. 153 : and a repre^ sentative of the estate of one of two executors who had died insol- 5 34 Chancery Order 56. vent, and to which representation could not he ohtained was also dispensed with : Moore v. Morris, 13 L. R. Eq. 139 ; Band v. Han- dle, 2 W. K. 331 ; Rogers v. Jones, 1 Sm. & G. 17 ; and where the deceased person's interest was very small ; Montgomery v. Douglas, 14 Gr. 268 ; and where his estate was insolvent and his next o£ kin refused to take out letters of administration and the estate appeared to have no substantial interest in the fund sought to he recovered by the plaintiff, representation was dispensed with : Ciirtius v. Cale- donian Fire and Life Ins. Co. , 45 L. T. 662, and even where the de- ceased party was sole plaintifif and tenant for life, and an arrear of income remained due to him, an administration suit instituted by him, was on the application of the defendants, revived without any representative of the original plaintiff, whose executor had died with- out proving his wiU, but without prejudice to the right of the personal representative of the original plaintiff to intervene : Hayward v. Pile, 7 L. E. Chy. 634, but see Bank of Montreal v. Wallace, 1 Chy. Ch. E. 261. Personal repre- Where a deceased person had by an instrument inter vivos made dispensed Trtt™ °^®'" '^'^ property to the defendant, who became bound to pay his grandchildren $400 each after the death of the settlor, the Court dispensed with a personal representative of the settlor, in a suit by one of the grand-children to enforce payment of the $400 : Mvlhol- land V. Merriam, 19 Gr. 288, S. C. 20 Gr. 152. Where the interest of the deceased person only amounted to $20 or $30, and no personal rep- resentative had been appointed, the Court dispensed with the pres- ence of a personal representative : Montgomery v. Douglas, 14 Gr. 268. Where an estate had been administered, and pending the suit for administration, the personal representative died, and all that re- mained to be done was for the Master to make his report, and it appeared that the estate was insolvent, an order was made appoint- ing the solicitor of the deceased administratrix to represent the estate : Re Tobin, Cook v. Tobin, 6 P. E. 40. So also in an action by a mortgagee of a policy on the life of the mortgagor, who had died intestate and insolvent, an d no administration had been taken out to his estate, the presence of a personal representative of the mort- gagor was dispensed with ; Curtius v. Caledonian Fire Lis. Co. , 45 L. T. 662 ; Webster V. The British Empire Ins. Co., 43 L. T. 229 ; 15 Ch. B. 169. Cases where stat- ^^® Statute has been held to apply though the deceased person ute applies. was never a party to the action {lb.), but see Huglies v. Hughes, 6 App. E. 373. It also applies to proceedings on a special case : Swallow V. Binns, 17 Jur. 29; and to proceedings by petition : Ee Ranking, 6 L. E. Eq. 601-5 ; Ex parte Cramer, 9 Hare App. xlvii.; and see Magnay V. Davidson, lb. Ixxxii. , but is generally applicable only where from any cause there is difficulty in obtaining representation of the estate : Long V. Storie, Kay App. xii ; Davies v. Boulcott, 1 Dr. & Sm. 23 ; Bliss V. Putnam, 29 Beav. 20. Chancery Order 56. 35 In an action to enforce a lien for an annuity charged upon real estate, it is not necessary to make the personal representative of a deceased psrson who was liable for its payment a party, unless an account of the personal estate of the deceased is asked . Paine v. Chapman, 7 Gr. 179, and see Bums v. Canada Co., 7 G-r. 587. In an action against the heirs of a deceased purchaser to enforce a vendor's lien, the widow of the purchaser is a necessary party in respect of her dower : Paine v. Chapman, 7 Gr. 179. Although the Statute enlarges the power of the Court beyond the Caseswhere stat- Boope of Ord. 56, it has been held not to authorize the appointment aDply"^ ""' of a person to represent an estate which the action is brought to administer, nor in such an action can the Court dispense with the presence of a legal personal representative : Hughes v. Hughes, 6 App. E. 373, and see Roiosell v. Mm-ris 17 L. R. Eq. 20 ; Outram v. Wyckhoff, 6 P. R. 150 : Leonardo. Clydesdale, 6 P. E. 142 ; Toronto Savings Bank v. Canada Life Assurance Co., 13 Gr. 171. A person cannot be appointed to represent an estate under the consent of per- Statute without hia consent : Prince of Wales Co. v. Palmer, 25 ^o" appointed necessary. Beav. 605 ; Hill v. Bonner, 26 Beav. 372. The proper person to be appointed is the person who would be appointed administrator ad litem, : Dean of Ely v. Oayford, 16 Beav. 561 ; where the deceased had left a will which was disputed, the person named as executor therein was appointed -. Hele v. Lo7'd Bexley, 15 Beav. 340. Although a judgment in a suit to which the personal representa- Judgment tive is a party is conclusive as regards the personal esitate and those asainst personal beneficially interested therein, whether as legatees or next of kin ; how for binding it is only prima/acie evidence of a liability of the estate as against ""(i"^^^ repreaen- those interested in the realty, whether as devisees, or heirs-at-law, and the latter are at liberty to rebut it : Eccles v. Lowry, 23 Gr. 167 ; Lovell V. 0%son, 19 Gr. 280 ; Willis v. Willk, 19 Gr. 573 ; Harvey V. Wilde, 14 L. K. Eq. 438 ; Steel v. Lineberger, 59 Penn. St. Rep. 308 ; Story V. Fry, 1 Y. & C. C. 0. 603, and see Anderson v. Paine, 14 Gr. 110 ; and it is therefore only to this extent that an order under the Statute will bind those interested in the real estate. But the lands of a deceased person may be sold under execution against his personal representative, without making the persons interested in the realty parties ; B. S. 0. c. 66, as. 35, 36, 40 ; and the persona inter- ested in the realty are prima facie bound by the sale : McEvoy v. Clune, 21 Gr. 515. But where the claim for which the judgment ia recovered is one that is not properly enforceable against the realty, the execution may be stayed in an action by heirs-at-law : Anderson V. Paine, 14 Gr. 110 : and if a sale take place it may be success- fully impeached by the heir-at-law : Freed v. Orr, 6 App. R. 690. Where the judgment against the personal representative is success- fully impeached on the ground of fraud and collusion, the beneficiaries are entitled to set up the Statute of Limitations againat the claim of 36 Chancery Order 57. the creditor which the personal representative had omitted or neg- lected to plead : Jardine v. Wood, 19 Gr. 617. The Master in Chambers has power to entertain applications under the Statute for the appointment of a person to represent the estate of a deceased party : CoUver v. Swayzie, 8 P. E. 42 ; Holmested's Manual Pr., p. 210. Statute does not The Statute does not supersede the authority and jurisdiction of d"ctton of i^rro- *^® Surrogate Courts as the sole tribunals authorized to grant letters gaie Courts. probate of wills, or letters of administration. It merely enables the Coiirt to proceed with an action so as to bind the personal estate of a deceased person even though no letters probate, or letters of admin- istration, have been granted by the Surrogate Court. The represen- tative authorized to be appointed by the Statute is not an adminis- trator, but merely represents the estate for the purpose of the action in which the order is made, and he is not entitled to act as an admin- istrator of the estate, except so far only as it is necessary for him to do so for the purposes of the action in which he is so appointed. It has not been usual to require any security to be given by a person appointed under the Statute to represent an estate, and he has no authority to receive any moneys belonging to the estate he is ap- pointed to represent, except according to the express order of the Court in that behalf. The Court has refused to appoint a person to receive a sum of money payable out of Court to a deceased person, although the amount was small ; SawUns v. McMalum, 1 Drew 225 ; Williams V. Allen, 32 Beav. 650, and has refused to order payment to the representative, where one has been appointed in the suit ; Byam V. Sutton, 19 Beav. 646. An administrator ad litem may be appointed by the Surrogate Court : R. S. 0. c 46, o. 54, and see s. 51, and a decree against him binds the general administrator Davis v. Chanter, 2 Ph. 545 ; Oroft v. Waterton, 13 Sim. 653 ; Ellice v. Ooodson, 2 Col. 4 ; Williams v. Allen, 32 Beav. 650 ; Woodhouse v. Woodhouse, 8 L. R. Eq. 514 ; Collas V. ffesse, 12 W. E. 565. Court may pro- 57. Where QuestioDs Eiisc between Darties, who are ceed though some ^ ^ ^ of the parties some Only of those interested in the property respect- interested are ^ ^ J. l ./ r not before iti ijjg which the qucstion arises ; or where the property in question is comprised with other property in the same settlement, will, or other instrument, or is the property of an intestate, the Court may adjudicate on the questions arising between such parties, without making the other parties interested in the property respecting which the question arises, or interested under the settlement, will, or other instrument, par- Chancery Order 57. 37 ties to the suit ; and without requiring the whole trusts and purposes of the settlement, will, or instru- ment, or the whole estate of the intestate, to be exe- cuted or administered under the direction of the Court, and without taking the accounts of the trustees or other accounting parties, or ascertaining the particulars or amount of the property touching which the question or questions hav^e arisen, or of the whole estate or assets ; but where the Court is of opinion that the application is fraudulent, or collusive, or that for some other reason the application ought not to be enter- tained, it may refuse to make the order prayed. (3rd June, 1853 ; Ord. 29.) (Imp. Act. 15 & 16 Vict. c. 86 s. 51.) The Court may under this Order execute one or more of several specific trusts embraced in an instrument without making all the persons interested in the other trusts embraced therein, parties ; ParmllY. Hing-iton, 3 Sm. & G. 337. But some of the parties inter- ested on both sides of the question involved must be before the Court : Sioallow V. Binns, 9 Hare App. xlvii. The Court has refused to per- mit a plaintiff at the hearing to strike out the names of defendants whom he had improperly omited to serve with a subpcena to hear judgment, and proceed in their absence although such parties had merely a nominal interest : Lanham v. Pirie, 2 Jur. N. S. 1201, and see Quanlz v. Smelser, 6 P. R. 228 ; but where at the hearing it was discovered that an order pro confesso against certain defendants had been vacated by a subsequent amendment, the Court pronounced a decree saving the rights of such defendants : Waddle v. McGinty, 15 G-r. 261. A decree for foreclosure could not be made under this Order as against some only of the parties interested in the equity of redemption : Gaddich v. Cook, 32 Beav. 70. But where the parties interested in the equity of redemption are numerous, the Court may under Ord. 438 award judgment, and direct that parties so interested be made parties in the Master's Office, but such order can only be made, where one or more parties interested in the equity of redemp- tion, are already parties to the action. No action is now to be defeated by reason of the misjoinder of Action not to be parties, and the Court may in every action deal with the matter in joinder, controversy so far as regards the rights and interests of the parties actually before it : Ride S. G. 103. Where a defendant now wishes to raise an objection to the plaintiff's proceedings, on the ground of the non- joinder or misjoinder of parties, it can no longer be raised by 38 Chanceet Order 58. demun-er, but must be raised on motion to add, or strike out, parties : Werdei-man v. SocktS GeneraU B'Electricite, 19 Ch. D. 246; 45 L. T. 514 ; 18 C. L. J. 18, or the Court itself may mero motu make an order for that purpose: Kino v. Eudhin, 6 Ch. D. 160 ; Rule S. C. 103, u. The Order applies to applications made under Tlie Trustees Belief Act, 1850, and some out of several parties entitled to the equity of redemption were held entitled to apply under that Act for a recon- reyance : Ee Sharpley's Trusts, 1 W. R. 271. The Order also ap- plies to parties to special cases : Swallow v. Binns, 9 Hare App. xlvii ; Ee Brown, 29 Beav. 401. Wten the Court proceeds under this Order in the absence of any parties interested, the absent parties are not bound by the proceed- ings : Doody v. Higgins, 9 Hare App. xxxii. want ifpSS 58. It shall not be competent to a defendant to take Kufes app™^ an objection for want of parties in any case to which the seven rales next hereinafter set forth apply. (3rd June, 1853 ; Ord. 6, s. 2.) Under Eule S. C. 102, subject to The Judieaiure Act and Eules this Order is now in force in all the Divisions of the High Court of Justice. The object of this Order is to save unnecessary expense, and where unnecessary parties are made to the action, the Court will refuse to charge the estate with extra costs thereby occasioned : Badgers v. Bodqers, 13 Gr. 457 ; Bradley v. Wilson, lb. 645, and it would seem that the plaintiff may be ordered to pay such costs. PersoDsnotmade Although in the several cases mentioned in the Order the action P*^'.'^' ^^?^}'" may be commenced and judgment obtained without making all ment. persons interested parties to the action, yet the persons who but for this Order, would be necessary parties to the proceedings must under Ord. 60 post, be served with a copy of the judgment, unless the Court, or Master, dispense with the service, and it is not until ' ' after such service, " that they are bound by the proceedings. Whether persons upon whom service of the judgment is dispensed with, are bound by the proceedings as if they had been actually served, is not stated in the Order, and it is possible that they would not be so bound. See Doody v. Higgins, 9 Hare App. xxxii. Persons from Notwithstanding this Order, all persons from whom an account is whom an account sought, must be made parties in the first instance ; Latch x. Latch, should be made 10 L. R. Chy. 464 ; Walker v. Seligmann, 12 L. R. Eq. 152 ; parties. ^q;^;^ ,^_ jj_ q_ Building Society, 11 Gr. 275, 278-9 ; Hopper v. Harrison, 28 Gr. 22 ; and the judgment cannot be varied under Ord. 60, at the instance of persons served with the judgment so as to direct the taking of accounts for which no foundation is laid in the pleadings : Foster v. Foster, 3 L. R. Chy. 330, at all events not without giving the party from whom an account is sought an Chanceky OiiDER 58, r. 1. 39 opportunity to adduce evidence to show that the account should not be ordered : and persons served with the judgment, have no greater right to call the original defendants to account, than they would have if such persons had been originally made co-defendants in the action ; thus in an action by a remainderman for an account, it was held that a tenant for life served with the judgment could not claim an account of the income : Whitnei/ v. Smith, 4 L. E. Chy. 513. All persons in the same interest with the plaintiff, necessary to be made parties, except perhaps infants, should be made co-plaintiflfs ; where they are made defendants in consequence of their refusal to join as plaintiffs, they wUl be refused their costs ; Ling v. Smith, 25 Gr. 246. Rule 1. — A residuary legatee, or next of kin, may- have a decree for the administration of the personal estate of a deceased person without serving the remain- ing residuary legatees or next of kin. (Imp. Act, 15 & 16 Vict. c. 86, s. 42, r. 1.) Where the action is brought by one of several residuary legatees, a fo b r ' the plaintiff sufficiently represents all the residuary legatees, and the duary legatee, others are not entitled as of course to appear in the Master's Office, by a separate solicitor, and if they do, they may be refused their costs ; to entitle them to costs some sufBcieut reason should be stated in the Master's report, for their being represented by a separate solicitor : Gorham v. Gorham, 17 Gr. 386. The legal personal representative is a necessary party to an action Personal repre- for general administration, and it is necessary to allege that the sentative a neces- person named as the legal personal representative has proved the tion for adminis- will or obtained letters of administration as the case may be : Penny t"^"*'""- V. Watts, 2 Ph. 149 ; Re Marshall, Fowler v. Marshall, 1 Chy. Ch. E.. 29 ; Kelhjv.Ardell, 11 Gr. 579 ; Simons v. Millman, 2 Sim. 241 Lowryy. FuUon, 9 Sim. 104; Zimmerman^. O'Eeilly, 14 Gr. 646 Groves v. Lane, 16 Jur. 1061 ; Goohe v. Gittings, 21 Beav. 497 Beardmore v. Gregory, 2 H. & M. 491 ; Gary v. Hills, 15 L. R. Eq. 79 Doiodeswell v. D., 9 Ch. D. 294 ; Rowsell v. Morris, 17 L. R. Eq. 20, But probate, or administration, obtained by the alleged personal re presentative pendente lite before the trial of the action, will be suffi cient to bind the estate : Bateman v. Margerison, 6 Hare 496, and this was held even though the objection was taken by defendant in his answer : Edinburgh Life Assurance Go. v. Allen, 19 Gr. 593 ; and see Stump v. Bradley, 15 Gr. 30; McDonald v. McDonald, 14 Gr. 133, where probate not obtained until after judgment. Judg- ment for the general administration of a deceased person's estate cannot be granted against an executor de son tort where the legal personal representative is not a party ■ Rowsell v. Morris, 17 L. R. 40 Chancery Order 58, r. 1. Eq. 30 ; Outram v. Wychoff, 6 P. R- 150, bat see Be Loveit, Ambler V. Lindsay, 3 Ch. D. 198 ; nor against one of several executors who have proved, even though the absent executor be out of the jurisdic- tion ; Re Freeborn, F.v. Carroll, 6P.E. 188; Latchv. Latch, 10. L.K. Chy. 464. All the executors who have proved, and all who have acted, even though they have not proved, are necessary parties ; VicJcers v. Bell, 4 D. J. & S. 274 ; Hamp v. Robinson, 3 D. J. &■ S. 97 ; Latch v. Latch, supra ; but an executor who has renounced, or who has neither proved nor acted, need not be made a party : For- syth V. Vraie, 1 Gr. 223 ; Willis v. Walker, 1 Vern. 90 {n) 2 ; Stinson T. Stinson, 2 Gr. 508 : but where the plaintiff brought a suit for administration against one of three executors and trustees, alleging in the bill that the others had never acted, and the bill having been served by publication, on a hearing pro confewo the Court refused to make a decree in the absence of the other two executors and trus- tees as parties, or of proof of the facts alleged, accounting for their not being made parties : Lane v. Young, 17 Gr. 100. The renuncia- tion of an executor under R. S. 0. c. 46, o. 59, is peremptory and cannot be recalled on the death of the acting executor : Allen v. Parke, 17 C. P. 105 : and after renunciation he cannot execute a power of sale given to him, qua executor ; Travers v. Oustin, 20 Gr. 106; and see Re Delaron.de, 19 Gr. 119. As to the acts which will render an executor liable, notwithstanding his renunciation of probate, see Vannatto v. Mitchell, 13 Gr. 665. The representative of a deceased executor who fully accounted to the surviving executor, need not be made a party ■ Webster v. Leys, 28 Gr. 471. An executor proving the will, after judgment has been obtained, against another executor who had previously proved, might formerly have been added as a party by a supplemental order ; Guthrie v. Walrond, 22 W. K 723 ; and it would seem he might under the present practice be brought before the Court under an order to con- tinue proceedings, see Rules S. 0. 374, 385. A general decree for admin- istration was granted in a creditor's suit against an administrator ad litem, it being alleged in the bill that there was no personal estate, and the parties interested in the realty having allowed the bill to be taken pro confesso against them : Dey v. Dey, 2 Gr. 149, but see re- marks of Spragge, C, Oarrow v. McDonald, 20 Gr. 130. Action for ijt-o- -^^ action for protecting the estate until probate cannot be joined it.ection of^ estate -vyitli an action for administration ; formerly a bill so framed was defliurrable for want of parties : Rawlings v. Lambert, 1 J. & H. 458 ; Overington v. Ward, 34 Beav. 175, and see Tempest v. Camoys, 35 Beav. 201, and Cole v. Glover, 16 Gr. 392 ; but now any objec- tion to an action on the ground of the absence of necessary parties, can not under TJie. Judicature Act be t.xken by demurrer, but the question must be raised on motion to add the necessary parties ; until probate. Chancery Order 58, r. 1. 41 fVerdermann v. SocieU Oenerale V ElectriciM, 45 L. T. 514 ; 18 C. L, J. 18 ; 19 Ch. D. 246 ; Toung v. RobeHson, 2 0. E. 439. The removal of the assets out of the jurisdiction will be restrained Removal of by injunction even though the deceased's domicile was out of the restrained. Province ; Shaver v. Gray, 18 Gr. 419. Where the action relates to the realty as well as the personalty, Real represcnta/- unless the executor is also trustee, or devisee, of the realty, or of *'^°"' '''''° ^. ' ' ''' necessaryparties. some part of it : Stewart v. Hunter, 14 Gr. 132, it is necessary to join the heir, or if the lauds be devised, then the devisee, or one or more of the devisees {Calvert, 151, 153, Ord. 472 post.) But execu- tion against the lands of a deceased person may be issued upon a judgment against his personal representative, although those inter- ested in the realty are not parties to the action; iJ. S. 0. u. 66, s. 40, and see McEvoy v. Olune 21 Gr. 515. No action can be brought by a legatee, or next of kin, against a No action for personal representative before a year has elapsed from the death of )^™by'leffaS*" the deceased testator, or intestate, 33 Geo. III. c. 8; 5'toe/- v. or next of kin, Slater, 3 Chy. Ch. R. 1 ; Vivian v. WesibrooTce, 19 Gr. 461. But an death" * ^*" action for the protection of the estate simply, may be broaght by a legatee, or next of kin, against an executor de son tort before the lapse of the year : Beardmore v. Gregory, 2 H. & M. 491 ; but not for ad- ministration as well : RawUngs v. Lambert, 1 J. & H. 458 ; Overing- ton V. Ward, 34 Beav. 175- The High Court has no power to appoint jjj„i, court can an executor, in place of executors who have become incompetent to act °o' appoint trus- -,-.,.„. ,, ,r>, *ee in place of through bodily mfirmity, that can only be done by the Surrogate executor. Court : nor will the High Court appoint a trustee in place of such executors ; Corrigal v, Henry, 2 Gr. 310. But where an executor has become insolvent a Receiver will be appointed : Harrold v. Wallis, 9 Gr. 443, and see Meacham, v. Draper, 2 Gr. 316. Where the personal representative has duly advertised for credi- when personal tors under R. S. 0. ~s. 107, o. 34, and has distributed the estate, that J'^P"'?????*'/^. ' ' ' has distributed is an answer to a subsequent action against him for administration, estate after ad- by a legatee, see Newton v. Sherry, 1 C. P. D. 246 ; or by a creditor : Jtatute, adrainis- Glegg v. Rowland, 3 L. E. Eq. 368, even though he have retained tration refused, money in his hands to answer legacies, because from the time he sets apart moneys to answer legacies, he ceases to hold them as execu- tors, but becomes then a trustee thereof for the legatees: lb ; Cameron V. Campbell, 27 Gr. 307 ; Ballard v. Marsden, 42 L. T. 763 ; Galbraith V. Duncombe, 28 Gr. 27, but see Noble v. Brett, 24 Beav. 499. But if he has notice of a creditor's claim, he is not discharged because it was not sent in : Wood v. Wood, MarTcwelVs Case, 21 W. E. 135 ; Re Land Credit Co. of Ireland, W. N. (72) 210 ; and if the adver- tisement is insufficient he is not protected . Wood v. WeigMmati, 13 L. R. Eq. 434. Where also there had been an accounting in the Surrogate Court Account in Sur- by the personal representative and no objection made for eight years, ™^* * "" ' 6 42 Chanceey Ordee 58, r. 2. Personal repre- sentative distri- buting estate without adver- tising under statute, remains liable to credi- tors. the right to a further account in the High Court of Justice was held to be barred : Bell v. Landon, 18 C. L. J. 178. Personal representatives distributing an estate without advertis- ing under the Statute (E. 8. 0. <:. 107, s. 34), or without the authority of the Court remain liable to a creditor, though they had no notice of his claim, Knatchbull v. Fearnhead, 3 My. & Cr. 126 , Noble v. Brett, 24 Beav. 499 ; Jeffen/s v. Jeffei-ys, 19 W. R. 464 ; and also to legatees ; and where the executor has distributed under a mistaken construction of the wiU he is liable to the parties injured : Hilliard V. Fulford, 4 Ch. D. 389 ; Boulton v. Peard, 3 D. M. G. 608 ; Doyle v. Blake, 2 Sch. & L. 243 ; but he would have a right to recoup him- self out of any further payments due to those who had been over- paid ; Dibbs V. Goren, 11 Beav. 483 ; and would also seem entitled to call on them to refund the money overpaid them, but not any in- terest thereon : Jerois v. Wolferstan, 18 L. R. Eq. 18. An infant executor is not liable to account for assets received by him whilst a minor : Nash v. McKay, 15 Gr. 247 ; ffindmarsh v. Southgate, 3 Russ. 324. Payment of a legacy in full, is, prima facie, an admission of assets to pay all legacies in fuU, but it is open to explanation : Coleman v. Whiiehead, 3 Gr. 227. Administration has been refused where the estate was sworn by the executors not to have exceeded |50 : Foster v. Foster, 19 Gr. 463 ; but see Re Falconer, 1 Chy. Ch. R. 273 ; and where the plain- tiff's claim as legatee, only amounted to $28, notwithstanding it was alleged that there were other legacies for a considerable sum remain- ing tmpaid, administration was refused, though the suit was unop- posed : Beynolds v. Coppin, 19 Gr. 627. This Order applies to applications for administration on summary applications in Chambers, under Ords. 467 or 638. See Rule S. C. 3, under which, these latter Orders are in force in all the Divisions of the High Court : but it is to be noted that rule 1 of this Ord. is confined to actions by a residuary legatee, or next of kin, and rule 2 is con- fined to actions by a legatee interested in a legacy charged upon real estate, and therefore neither of these rules extend to actions by spe- cific legatees, or pecuniary legatees whose legacies are not charged on real estate ; but see Ord. 7 ante, as to meaning of words ' ' legacy, " "legatee,'' and "residuary legatee." f4lcyrch°arged "^^^^ 2.— A legatee interested in a legacy charged ^tiSnkhef "PO^ ^^^^ estate ; or a person interested in the pro- S?" '"*^'^' ceeds of real estate directed to be sold, may have a decree for the administration of the estate of a deceased person, without serving any other legatee Infant not liable to account. Paympnt of leg- acy, is admission of assets. Administration refused when estate small. Ord. applies to applications in Chambers for administration. Chancery Order 58, r. 3 — 4. 43 or person interested in the proceeds of the estate. {Imp. Act 15 & 16 Vict. c. 86, s. 42, r. 2.) See note to r 1. Rule 3. — A residuary devisee, or heir, may have the Residuary de- •^ ' ./ visee or neir,need like decree, without servine any co-residuary devisee, ».»' Jo™ «>-*«-. ' ^ ./ J J Tisees or co-neirs. or co-heir. See note to r 1. Rule 4. — One of several eestuis que trust, VlhA&h a one of several c,q,t. need not deed or instrument, may have a decree lor the execu- join other c.q.t. tion of the trusts of the deed or instrument, without serving any other of such eestuis que trust. {Imp. Act, 15 & 10 Vict. c. 86, s. 32, r 4.) A new trustee may be appointed in an action by one of several eestuis quejmst : Jones v James, 9 Hare, App. Ixxx. A suit by one of two eestuis que trust to recover an annuity charged upon land de\'ised to the defendant, was held maintainable without making another cestui que trust interested in another annuity charged on the same land, a party : Rees v. Engleback, 12 L. Il.,fiq. 225. But parties who claim adversely to the trust could not formerly be made parties to a suit for the execution of the trust : Attorney- General v. Avon Corporation, 3 D. G. J. & S. 637, where it is said that Talbot v. Earl of Radnor, 3 My. & K. 252, to the contrary had been constantly disapproved and never followed ; but see now Rules S. C. 91, 92. All persons from whom an account is required must be made ori- Persons from ginal parties to the action, see ante p. 38 ; thus a cestai que trust who required, must has been party to a breach of trust, is a proper party : Jesse v. Ben- notwithstanding 'jTjT^./ ^Q parties. nett, 6 D. M. G. 609 ; and a stranger or a creditor, who has joined in the breach of trust may be joined : Lund v. Blanshard, 4 Hare 9 ; Bank of Toronto v. Beaver and Toronto Mutual Fire Insurance Co., 26 Gr. 102 ; Consett v. Bell, 1 Y. & C, C. C. 569 ; Stainton v. Tfie Carron Co., 18 Beav. 146. But if a trustee commits a breach of trust, the person participating is not a necessary party to an action for the general administiation of the trust estate : Tiffany v. Tlwmpson, 9 Gr. 244. Where a suit was brought by a remainderman for an account against trustees, the tenants for life who were served with the decree, were held not entitled to call the trustee to account as to the in- come : Whitney v. Smith, 4 L. E. Ghy. 513. The Court will decree the execution of a trust of lands in a foreign Execution of country when the trustee is resident within the jurisdiction : Smith cou'ntn-.'maf'be V. Henderson. 17 Gr. 6 ; and see Re Robertson, R. v. R. 22 Gr. 449. decreed, when. 44 Chancery Order 58, r. 5 — 6. tec»on''of*pro."" -^"^« 5.— In all cases of suits for the protection of ested'nMd°n"t' property pending litigation, and in all cases in the be joined nature of waste, one person may move on behalf of himself, and of all persons having the same interest. {Imp. Act, 15 & 16 Vict. c. 86, s. 42, r. 5.) Sale by trustee Where property wag ofifered for sale by a trustee under depreciatory restrained in suit , , , . . , ' . , . , , j. • j • • j. by one of several conditions of Sale as to title, the saJe was restrained in a suit "•*■'■ instituted by one of several ce.?te!S que trust : Dancey. Goldingham, 8 L. R. Chy. 902. Where the action is necessary and proper, and has resulted in bene- fit to the co-owners, they may be compelled to bear their proportion of the expense of the action, according to the advantage they are shown respectively to have derived from the proceedings : Gage v. Mulholland, 16 Gr. 145. Personal repre- RuU 6. — An executor, administrator, or trustee, may sentative. or ^ p i • trustee, may obtain a decree against any one legatee, next of kin have a decree for ° ./ o administration, or CBStui QU6 tvust, for the administration of the estate or execution of 2 ^ trusts, Without Qi- the execution of the trusts. (Imp. Act, 15 &; .16 joining all c.q.t ^ J- ' Vict. c. 86, s. 42, r. 6.) In action for ad- Where an action for administration is brought by the personal personalrepre-^ representative, some special circumstances requiring the interven- eentatiye, special tion of the Court must be shown : Cok v. Glover, 16 Gr. 392 , Barry must be shown. V. Barry, 19 Gr. 458; Grant v. Grant, 18 C. L. J. 99. It seems that he has no right to institute an action merely to obtain an indemnity by passing his accounts : WJiite v. Cummins, 3 Gr. 602 ; Cole v. Glover ; 16 Gr. 392. As to whether a deficiency of assets to pay debts in full is alone a sufficient reason, seems doubtful : Swet- nam v. Swetnam, 6 P. R. 149 ; Re Ette, 6 P. R. 159 : Re SMpman, Wallace v. Shipman. 24 Gr. 177 ; Marsh v. Marsh, 7 P. R. 129 : Re Jack, Jack v. Jack, 13 C. L. J. 358 ; Re Bromley, (Blake, V. C, 28th Jany., 1878 ;) and see further, Ord. 471 note. Where there were leaseholds it was held that the executor was entitled to bring an action in order to obtain indemnity against liability on the cove- nants in the lease : Re Bosworth, Howard v. Caston, 45 L. T. 136 ; Dodson V. Sammell, 1 Dr. & Sm. 575 ; 4 L. T. N". S. 44 ; but see R. S. 0., c. 107, s. 32. The absence of a legatee beyond the juris- diction, whom the executors are unable to discover, was held to be a sufficient ground for the executors coming to the court : Re Wade, Dee v. Wade, 18 Gr. 485. He may be order- Where the action is unnecessarily brought by the personal repre- ed to pay costs, gentative, he may be ordered to pay costs, or may be refused his costs : see cases cited Ord. 638, post. Chancery Order 58, r. 7. 45 An executor may begin an action before obtaining probate, but Executor may , , , begiu suit before he must obtain probate before the trial : Newton v. Metropolitan probate. Railway Co., 1 Dr. & Sm. 583 ; or before a defence is filed that he is not executor : Simona v. Mihnan, 2 Sim. 241, ; (but see Edinburgh Life Assurance Co. v. Allen, ante p. 39 :) and the same rule applies ■to administrators : Humplireys v. Humphreys, 3 P. Wms, 350. An executor cannot under this order bring an action against one Executor cannot of two co-executors who have proved, without making the other a "°g o^ggfgg^. party : Latch v. Latch, 10 L. R. Chy. 464. eral co-executors. An action may be brought by a trustee against his co-triistee to But c. q. t. need recover and secure the trust fund, without joining any of the cestais '^° ^J"'"^"- qiie trust as parties : Horsley v. Fawcett, 11 Bsav. 565 ; Baynard v Wooley, 20 Beav. 583 ; May v. Selby, 1 Y. & C. C. C. 235 ; Peah v. Ledger, 4 D. G. & S. 137 ; Franco v. Franco, 3 Ves. 75 ; and au ac- tion may be also brought by the trustee against one cestuis que trust to recover the trust fund without making the other cestuis que trust parties : Bridget v. Hames, 1 Coll. 72. An executor who advanced money to pay the price of certain land Action by per- held by his testator as lessee with a right of purchase, was held MTes't^enforce'"' entitled to enforce his claim against the land, for the advances so bound by pro- Seligmann, 12 L. E. Eq. 152 ; Hopper v. HarrUon, 28 Gr. 22 ; ceedings. Ralph V. U. 0. Buildiny Society, 11 Gr. 275, 278-9. See, however, In re Sees, Sees v. George, 15 Chy. D. 490. Neither can he require the defendant to account any farther than if he had been himself an original defendant in the action : Whitnty v. Smith, 4 L. R. Chy- 513. A party served, however, may impeach in the Master's office an instrument set up in answer to his claim as a legatee, on the ground of fraud : Darling v. Darling, Rossa's claim, 15 C. L. J. 112. Whether the party served attend the proceedings or not, he is bound by the proceedings. Unless he give notice to the plaintiff of his intention to attend the proceedings under the judgment, he is not entitled to sc-viee of notice of the proceedings in the Master's office : English v. English, 12 Gr. 441. Attending Proceedings.^ A person served is entitled, on giving Parties served notice to the plaintiff, to attend the proceedings. A party so attend- "^'iainHfl "r 48 Chancery Oeder 60. tend the pro- Parties serred maj move against judg- ment. ing, although entitled to notice of the future proceedings in the action, does not thereby become a i^arty to the action . English v. English, 12 Gr. 441 ; Walker v. Sdirjinmin, 12 L. R. Eq. 152. Under Ord. 217 the Master has power, among other things, to- give special directions as to the parties ivho are to attend on the several accounts and inquiries ; and see also Biths S. C. 114, 518. A person served under Ord. 60, and attending the proceedings without necessarily m'sy special leave, may be ordered to pay aU the extra costs occasioned by be ordered to pay his so attending, if it appear that his attendance was unnecessary : Shai-p V. Lush, 10 Ch. D. 468 ; and see Dauhriey v. Leake, 1 L. E. Eq. 495. Persons not at- Persons served with the iudement, and not attending the proceed- tending proceed- jo , , . ings not entitled ings, are not entitled to service of the warrant to settle the report : to notice. g^.^^^^ ^ Measures, W. N. (66) 122 ; nor of the notice of hearing on further directions : Lee v. Slurroclc, W. N. (76) 226. If any relief is intended to be asked against them they are entitled to notice, even though they have not attended the proceedings before the Master : Re Bees, Rees v. George, 15 Chy. D. 490. Motion to vrify Judgment. — The motion to vary, or set aside, the judgment must be made on notice to the plaintiff. In the Chan- cery Division the motion should be set down to be heard on a Wed- nesday. In the other Divisions it may be brought on for hearing before a single Judge sitting in Court, on a Tuesday, or Friday, and need not be previously set down. Seven days' notice of the motion must still 'be given : see Onl. 41ii post ; and in the Chancery Division the action should be set down seven clear days before the day named for hearing the motion : Ord. 418. On the motion to vary the judgment by any person served with a copy, the Court will not direct the taking of accounts for which no foundation was laid in the pleadings or proceedings in the action, except perhaps on the terms of allowing the party from whom such account is sought, an opportunity to adduce evidence, to show why i* should not be granted : Foster v. Foster, 3 L. E. Chy. 330 ; and see Mvrgatroyd v. Cahtvell, 10 L. T. N. ,S. 410. Additional accounts and inquiries have been directed after the report, at the instance of a party subsequently served with the decree : Reeve v. Reeve, W. N. (71) 52. Under the former practice in Chancery, any person served with the decree might rehear the cause : Ellison v. Thomas, I D. J. & S. 18. Where the question intended to be raised does not appear on the pleadings or previous proceedings in the action, it may be necessary to present a petition in the nature of a bill of review under the former Chancery practice. No petition for leave to file this petition is necessary : Kidd v. C'het/ne, 18 Jur. 348 ; Duggan v. McKay, 1 Chy. Ch. E. 380 ; and see Ord. 330-334, post. Chancery Order 61. 4& It would seem that a purchaser under a judgment pronounced Purchaser in an action constituted under Oril. 58, is bound to see that that all necessary it has been served on all necessary parties, so as to bind them P"''!}''^ ^™ hound by the proceedings, in the same way that a purchaser is bound to ings. see that all necessary parties, are made parties to any other action in which a sale is directed by the Court. Primd facie, only the persons who are actually named as parties to the record are bound, Or(L 60 forms an exception to this rule. See Reeve v. Reeve, ^. K. (71) 52, and Russell v. Romanes, 3 App. R. 635. A purchaser, however, is not bound to enquire into the regularity of the proceedings antecedent to the judgment : Gtiitn v. Dohle, 15 Gr. 655 ; Shau' v. Crawford, 4 App. E. 371. Collins v. Denison, 2 Chy. Ch. R., 465. DisDensinff with Service. — The Master, to whom an action is Dispensmg with . .service of judg- ref erred, as well as the Court, has power to dispense with the service ment. of a copy of the judgment : see Orel. 587 post. Where the Master dispenses with service he must state the reasons therefor in his report. [Ih.) An advertisement may be published for persons who cannot be Advertisement. found to be served, as a condition of dispensing with service on them. See post, Ord. 2^3. Whether parties on whom service of the judgment is dispensed How far persons ^ *• ° ^ on whom service with, either by the Court, or Master, are nevertheless bound by the of judgment is proceedings, is nowhere stated ; it would seem that they are in the aie''bound^(B-e. same position as parties in whose absence judgment is pronounced under Ord. 57 ante, and that they are not bound : see Doodij v. Hii/nins, 9 Hare, App. xxxii ; but see Bunnell v. Foster, 7 Beav. 540. Service on some of the next of kin, who were resident out of the jurisdiction was dispensed with : English v. Englisli, 12 Gr. 441. An apiJlication to the Court to dispense with service may be made ex parte. [lb.) Absence from the jurisdiction is not of itself sufficient reason for Ahsence from '' . . juriediction, not dispensing with service : Chalmers v. Laurie, 10 Hare, App. xxvu ; suflcient ground Mayhery v. Brooking, 7 D. M. & G. 673; iitrong v. Moore, 22 L. J. ^^j^^P^^^^'.^ Chy. 917. Parties not having an interest at the date of the judg- ment cannot be brought before the Court under this Order, Colyer v. Colyer, 11 W. R. 355. But see Ord. 244 po.^t. 61. In all suits concerning real or personal estate iras^es^ ^^^.^ which is vested in trustees under a will, settlement, or =^^s-_^'- 1^ ^^^e^_ otherwise, the trustees shall represent the persons bene- ^ip^StT'p^e'r™' ficially interested under the trust, in the same manner ^onsjuterested and. to the same extent as executors or administrators, in suits concerning personal estate, represent the per- sons beneficially interested in such personal estate ; 50 Chancery Order 61. and in such case it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit ; but, on the hearing, the Court, if ,it think fit, may order such persons, or any of them, to he made parties. (3rd June, 1853 ; Ord; 6, r. 7.) {Imp Act, 15 & 16 Vict. c. 86, s. 42, r. 9.) Rule S. C. 102 Subject to The Jadicaiure Act and Sulci S. 0. this Order is in force in' force? ^' in all the Divisions of jthe High Court : iJ»fe -S. C. 102. Special provi- sion as to the same matter, is also made by Rule S. C. 95, which is as follows : "Trustees, executors, and administrators, may sue, and be sued, on behalf of, or as representing, the property or estate of which they are trustees or representatives, without joining any of the parties beneficially interested in the trust or estate, and shall be considered as representing siioh parties in the action ; but the Court or Jndge may, at any stage of the proceedings, order any of such parties to ba mxde pirties to ths action either in addition to, or in lieu of, the previously existing parties thereto. '' The analogous English Ord. xvi, r. 8, is considered virtually to supersede 15 & 16 Vict. u. 86, s. 42, i. 9, from which Ord. 61 is taken : see remarks of Jeisel, M. R. : Bulky v. Bulky, 8 Ch. D. 489. Since Ord. 61 Prior to Ord, 61, in suits adverse to the cestui que trust, the latter oeea^'in'aU cases '^^^ * necessary party, and the Court had no jurisdiction to pronounce without c. q. t. a decree in his absence : see Cleveland v. McDonald, 1 Gr. 415 ; Rogers V. Rogers, 2 Gr. 137. Since the Order, however, the Court has jurisdiction in all cases in which the estate is vested in a trustee who is before the Court, to proceed in the absence of the cestui que trust, and even to decree a trust deed void in the absence of the bene- ficiaries : King v. Keating, 12 Gr. 29 ; T/wmpsonv. Dodd, 26 Gr. 381. The question of the beneficiaries being parties, or not, is now entirely in the discretion of the Court, see Jennings v. Jordan, 6 App. Ca. 698; 45 L. T. N. S. 593 ; but this discretion has not always been uniformly exercised. In some cases it has been laid down that in the exercise of this discretion, wherever the suit is to set aside the trust, or is adverse to the rights of the beneficiaries, the Court should still require one or more of the beneficiaries to be made parties : Read v. Brest 1, K. & J. 183 : Baker v. Trainor, 15 Gr. 252 ; and see Thomas V. Torrance, 1 Chy. Ch. R. 46, and Clarice v. Cooke, 23 Gr. 110. In a suit by one of two creditors (both of whom claimed payment out of the trust estate in priority to other creditors), against the repre- sentatives of the deceased trustee, and one of several creditors who claimed that all creditors should be paid pari passu, it was held that all parties interested were suflBciently represented : Wiglev. McLean, But trust estate 24 Gr. 237. In order that the Court may act under Ord. 61 it is in trustee. necessary that the trust estate should be vested in the trustee, an Chancery Order 61. 51 executor with a mere implied power of sale over the realty is not a trustee within the meaning of the Order : Bolton v. Stannard, 6 W. E. 570. Utile S. O. 95, however, is not so restricted in its terms, Ord. 61 provides that the trustee shall represent the cestui que trust to the same extent that executors in suits concerning personal estate, represent the persons beneficially interested, and it would seem that notwithstanding the general terms of Rule S. C. 95, that it is only where the trustee has the like absolute control over the trust estate which an executor has over personalty, that he can, in general, be said to sufficiently represent his cestui que trust : Cox v. Barnard, 5 Hare, 253. As to the extent to which the personal representative represents those interested in the realty : see Eccles v. Lowry, 23 Gr. 167, cited ante in note to Ord. 56. It is difficult to harmonize all the decisions which have been pro- nounced under the corresponding section of the English Chancery Act 15 & 16 Vict. c. 86, s. 42 : Cases where cestui que trust required to be added.— In acaseswherec.gt. suit for foreclosure, where the equity of redemption was vested in Jj'"'j'°* '° ^ trustees under a settlement, some of the beneficiaries were required to be added : Goldsmid v. StoneJiewer 9 Hare, App. xxxviii ; Cropper V. Mellersh, 3 W. R. 202 ; (but see contra Wilkins v. Reeves, 3 W. E. 306 ; JenningsY. Jordan, 6 App. Ca. 698; 45L. T. N. S. 593); but not where the trustees were also executors of the deceased mortgagor, and had the control of the whole estate out of which the mortgage debt could be paid: Hanman v. Riley, 9 Hare, App. xl. ; Sale v. Kitson, 3 D. M. & Gr. 119; nor where the cestuis que trust were infants, but in such case, the Master was directed to inquire whether a sale or foreclosure, would be more for the benefit of the infants, and the decree directed him, if he thought fit, to add the infants as parties in his office . Where the interest of the trustee who was called on to account, was in conflict with that of his cestui que trust the latter was added : Payne v. Parker, 1 L.R. Ohy. 327. Where the trustee disputed the rights of certain, of the cestuis que trust to share in the trust funds, he was held not suffi- ciently to represent those whose rights he disputed : Liddell v. Dea- con, 20 Gr. 72. So, also, where the trustee had disclaimed : Young v. War4, 10 Hare, App. Iviii. In a redemption suit some of the benefi- ciaries entitled to the mortgage money were i equired to be added : Stansfield v. ffobson, 16 Beav. 189, but see 3Iilk v. Jennings, 13 Ch. D. 639 ; Jennings v. Jordan, 6 App. Ga. 698 ; 45 L. T, N. S. 593, contra. In a suit for administration, by a plaintiff claiming as a beneficiary under a will, but whose title was doubtful, one of the cestuis que trust was required to be added as a party before the hearing, in order to have an opportunity to argue the question of the plaintiffs title : Day V. Radcliffe, 24 W. R. 844- In a suit for sale of mortgaged property, where the legal estate was in the heirs, but the executrix 52 Chancery Order 61. Cases where ■c, q. t. not re- quired to be jidded. Mortgage cases. Suits against trustees. had au implied power of sale, it was held that she did not suffi- ciently represent the cestuis que trust, as the estate was not " vested" in her : Bolton v. Staimard, 6 W. R. 570, but seats where the exec- utor had an express power of sale .■ Shaw V. hardiiigham, 2 W. R. 657. In a suit to execute the trusts of a will, where the trustee had only a power of sale on the death ot tenants for life who were still living, the parties interested in remainder were ordered to be added: Gox V. Barnard, 5 Hare, 253 ; where the plaintiff claimed under an assignment, the validity of which was denied by the trustee, who set up that the heir of the assignor was entitled to the trust estate, the heir was required to be added : Milkr v. Ostrander, 12 Gr. 349. Cases where cestui que trust, not required to be added.— In a redemption suit by a trustee : Jennings v. Jordan, 6 App. Ca. 698 ; 45 L. T. N". S. 593 ; Mills v. Jennings, 13 Ch. D. 639 , but see Slansfield v. Hobson, 16 Beav. 189. In a redemption suit against trustees, where the estate was vested n them by a deed absolute in form, though intended as a mortgage, one of the trustees being also beneficially interested : Kerr v. Murray 6 Gr. 343, and see O'Gonnell v. CharUs, 2 Gr. 489. In a foreclosure suit by an executor of a deceased mortgagee : Lawrence v. Humphries, 1 1 Gr. 209 : the heirs, or persons beneficially interested, required to convey, may be added in the Master's office (76.) But see iJ. S. 0. c. 107, s. 15; Dilk v. Douglas, 26 Gr. 99, as to power of executor to convey. In a foreclosure suit by a trustee of a mortgage made for the benefit of creditors : Fraser v. Sutherland, 2 Gr. 442, or for the benefit of a firm, where one of the partners was dead : Stephens v. Simpson, 12 Gr. 493 ; 15 Gr. 594. In a foreclosure suit against a trustee : Shaw v.Liddell, 1 U.C.L.J. 57 ; Wilkins v. Reeves, 3 W.R. 305: Hanman v. Rihy, 9 Hare, App. xl. Sale V. Kitson, 3 D. M. & G. U9 ; but see Tudor v. Morris, 22 L. J. Oh. 1051 ; Cropper v. Mellersh, 1 Jur. N". S. 299 ; Dickson v. Dra- per, 11 Gr. 362. In the latter case an inquiry was directed whether a sale or foreclosure would be more beneficial for the infant cestuis quAi trust, and they were directed to be made parties, if the Master should think fit to add them in his office. In a suit against a trustee to enforce a trust for benefit of creait- >rs ; Bateman v . Margerison, 6 Hare, 496 ; Wood v. Brett, 9 Gr. 78, and see Pare v. Clegg, 29 Beav. 589. In a suit against executors and trustees to enforce a contract made by the testator in his lifetime : DelUle v. McGaw, 22 Gr. 254. In a suit by a trustee against representatives of a deceased trustee to recover moneys misappropriated by the latter : Re Cross-Harston V. TenUon, 45 L.T. N. S. 777. In a suit by one cestui que trust against executors and trustees, to recover trust property wrongfully alienated by one of them, the other Chancery Order 62. 63 cestuis que trust were held to be unnecessary parties : Syckman v. Canada Life Assurance Co., 17 Gr. 550. In an action for partition, where the shares of some parties were Action for parti- vested in trustees : Simpson, v. Denny, 10 Ch. D. 28 ; Ooodrick v. Marsh, W. N. (78) 186, and in such a case it is not necessary to serve the cestui que trust with the judgment, or to prosecute any enquiry as to them before tlie Master. (/6.) In a, suit for the construction of a will, and to determine whether Suit tor constrac- or not there had been a forfeiture, the persons entitled under the gift over, being a class, one of whom was a party ; but some of the others not being ascertained, the trustee being held sufBciently to represent those unascertained : White v. Chitty, 14 W. R. 366 ; and see now Rule S. C. 99. Effect of representation. — Where the action is brought by, or l5ff«i='ofrepre- • 1 , , .,, IT , . ,. .,sentationof C.5 (. against, a trustee without adding the cestuis que trust as parties, if by trustee. the question in issue has been fairly tried, all parties represented by the trustee would, generally speaking, seem to be concluded by the judgment, but not otherwise : Eccles v. Lowry, 23 Gr. 167. Thus a decree made after repKcatiou filed, dismissing a biU brought by an official assignee, is, in the absence of fraud, conclusive against the creditors of the estate of which he is assignee : Morrison v. Robinson, 19 Gr. 480, and see Jardine v. Wood, 19 Gr. 617. Where, however, a suit by trustees had failed for want of evi- dence, it was held that a subsequent suit might be maintained for the same purpose by the cestui que trust on the discovery of new evi- dence : Peirce v. Brady, 2 Jur. N. S. 772. See, however, ComrrAs- sioners, <£'C. of London v. Gillatly, 24 W. K. 1059 ; Morrison v. Rob- inson, 19 Gr. 480. 62- Where the plaintiff has a joint and several fd^and^CT'erai demand against several persons, either as principals joSau persons or sureties, it shall not be necessary to bring before the Court, as parties to a suit concerning such demand, all the persons liable thereto ; but the plaintiff may proceed against one or more of the persons severally liable. (3rd June, 1853 ; Ord. 6, r. 8.) {Eng. Gon. Ord. 7, r. 2.) " All persons may be joined as defendants against whom the right Jj^^^^ ' to any relief is alleged to exist, whether jointly, severally, or in the alternative. And without any amendment, judgment may be given against such one or more of the defendants, as may be found to be liable, according to their respective liabilities. " Rule S. C. 91. ' ' The plaintiff may, at his option, join as parties to the same ac- tion all or any of the persons severally, or jointly, or severally, liable 54 Chancery Okdee 62. on any one contract, including parties to bills of exchange and promissory notes. '' Eule S. O. 93. As neither of these Rules appear to affect the practice laid down by Ord. 62, so far as regards actions not founded on contract, it would seem to be stiU in force. See, however, Lloyd v. Dimmack, 7 Ch. D. 398. Prior to this Order all parties jointly and severally liable to satisfy the plaintiff's demand, and all trustees implicated in a breach of trust were necessary parties to a suit in equity in respect thereof. This Order therefore constituted an exception to the general rule of practice as to parties. Formerly where a suit was improperly constituted, and necessary parties were not before the Court, the objection could be taken by demurrer. But an objection for want ,of parties is no longer a ground of demurrer, but it may be raised by a motion in chambers to add the parties whose presence is considered necessary. See Rules S. O. 103, 104: Werderman v. Societe denerak D' Electrkite, 19 Ch. D. 246; 45 L. T. 514; Young y. Robertson, 2 0. E. 434; Scane v. Duchett, 19 C. L. J. 139 ; or the def erdant can in certain cases bring the parties before the Court so as to bind them by the proceedings, by serving them with notice : see Rules 8. C, 107, 108 ; or by making them parties to a counter claim : Rule S. 0. 127, J. A. s. 16, ss. 4. Notwithstanding the general terras of Ord. 62, the construction placed upon it somewhat narrowed its operation ; and wherever under the former practice it did not apply, a motion in Chambers to add parties would seem proper ; e. g. ^ Cases in which Order 62 was held to apply :— ply.' 1. To suits in respect of a liquidated sum, or a single breach of, trust, where a general account was not required : Oarroio v. Mc- Donald, 20 Gr. 122 ; Kellaway v. Johnston, 5 Beav. 319 ; Perry v. Knott, 5 Beav. 293. Some of the trustees guilty of the breach of trust might be proceeded against without joining the others : Mc- Gachen v. Dew, 15 Beav. 84, but see Williams v. Allen, 29 Beav. 292 ; 32 Beav. 650. 2. The Order also applies to suits against public trustees for mis- application of funds : Attorney General v. Pierson, 2 Coll. 581 ; Attorney General v. Corporation of Leicester, 7 Beav. 176. 3. Also to suits to recover from some of the members of a firm or their representatives, moneys misappropriated by any of the part- ners, and in such a case it was not necessary to join the partner or his representative by whom the misappropriation had been actually made ; Plumer v. Gregory, 18 L. E. Bq. 621 ; St. Aubynv. Smart, 3 L. R. Chy. 646. 4. So also in a suit to recover an annuity charged upon several parcels of land, itwas held that the plaintiff might proceed against any one of the parcels, without making the owners of the other par- Chancery Order 62. 55 eels parties, but leave was given to the defendant to apply to add the others for the purpose of obtaining contribution : Miller v. Viekers, 23 Gr. 218. 5. So also in a suit to recover upon a promissory note, it was held not to be necessary to join all of several makers : Madntyn v. Connell, 1 Sim. N. S. 241 ; and see Rule S. 0. 93. Order 62 was held not to apply :— cases in which _ . . Ord 62 did not 1. Where a general account or a trust estate, or a general adminis- apply. t ration was sought ; Garrow v. McDonald, 20 Gr. 122 ; Coppard v. AUev, 2 D. J. & S. 173 ; Devaynes v. Robinson, 24 Beav. 86 ; Biggs V. Penn, 4 Ha. 472 ; 9 Jur. 368 ; Shipton v. Rawlins, 4 Ha. 619 ; ffall V. Ansiin, 2 Coll. 570 ; Penny v. Penny, 9 Ha. 39. In such cases all the trustees, or executors, were necessary parties. 2. Nor to a case where some of the cestuis que trust had parti- cipated in the breach of trust, and had received the trust fund, and were necessary parties to any account or inquiry which a defen- dant trustee would be entitled to as against them, by reason of his right to contribution, or indtmnity ; but an administrator ad litem was held sufficiently to represent one of such c. q. t. who was dead : Williams Y. Allen, 29 Beav. 292; 32 Beav. 650; Jesse v. Bennett, 6 D. M. & G. 609. 3. Neither did it apply where the plamtiflf's demand was only joint : Danl. Pr., 5th ed. 285. 4. Nor to suits to repair a breach of trust, where the trust pro- perty, if recovered, would have to be administered by trustees whose duties had not ceased ; in such a case, all the trustees were necessary parties : Devaynes v. Robinson, 24 Beav., see note at p. 99 ; Fowlm- v. Reynal, 2 D. & S. 749. 5. Nor to actions against sureties alone without joining the princi- pal ; Exchange Bank v. Springer, 29 Gr. 270 ; and see Merchants' Bank v. Sparks, 28 Gr. 108. Where there was but one principal and one surety both weie required to be joined : Lloyd v. Smith, 13 Sim. 457 ; Seidler v. Sheppard, 12 Gr. 456 ; Pierson v. Barclay, 2 D. G. & S. 746. But when there were several principals and several sureties, the plaintiff might proceed against one of each class without making the others parties : Lloyd v. Smith, supra. But in any action founded on contract, see now Rule S. C. 93, supra : Lloyd v. Dimmack, 7 Ch. D. 398. 6. Neither did the Order apply to suits to recover a debt due by a partnership, when one of the partners was dead. In such cases the surviving partner and the representatives of the deceased partner must both be joined : Hills v. McRae, 9 Hare 297 ; Cox v. Stephens, 2 N. E. 506 ; Baxters. Turnbull, 2 Gr. 521. But a sur- viving partner may sue for the recovery of a debt due to the part- -56 Chanckky Order 63. uership without making the representatives of a deceased partner, parties. This was the rule both at law and in equity ; Bilton v. Blaheley, 6 Gr. 575 ; Stephens v. Simpson, 12 Gr. 493 ; 15 Gr. 594 . Bolchow V. Foster, 24 Gr. 33.3 ; 25 Gr. 576 ; (overruling on this point : SylceH V. Brockvilk & 0. R'y. Co., 9 Gr. 9), and see McGUan v. Kennard, 9 L. R. Chy. at p. 346. 7. When the plaintiff had framed his record against all the par- ties liable, he could not afterwards abandon his suit against any of them and proceed against the rest : Fuwell v. Elwin, 7 Ha. 29 ; Lon- don Oas Oo. V. Spottiswoode, 14 Beav. 264, but see now Lloyd v. Dim- mach, 7 Ch. D. 398. Officers of corpo- 63. Where a bill is filed against a Corporation rations not to be . made defendants afforrea'ate, no officer of the Corporation is to be made merely for dig- ^° '^ ^ •every. ^ defendant for discovery only ; but any officer who might by the former practice have been made a defend- ant for the purpose of discovery, may be examined by the plaintiff in the bame way as a party, after the answer of the Corpoi'ation is filed, or after the time for filing the same has expired. (20th Dec. 1865 ; Ord. 5.) See note to Ord. 62. Examination for Prior to The Judicature Act 'provision hoA also been made at law discovery. ^^^ obtaing discovery by the examination of parties, or the officers of corporations. See R. S. 0. c. 50, ss. 156 et. seq. 41 Vict. e. 8, s. 9,' (O.) 42 Vict. (;. 15, ss. 3, 7, (0.) Holmested's Manual Pr. 233. The former practice at law, and in equity under Ord. 63, appears to be intended to ramain in force under Tlhe Judicature Act, see Rides 8. C. 220, 227. Further provision is also made by the Rules S. 0. for obtaining discovery by production ; — Officers of Corpo- "Where the party required to produce documents is a corpora - affldavi*t°on'^pr'o- *i°" aggregate, the affidavit shall be made by one of the officers of duction. the coi-poration. " Rule S. 0. 225. "The deponent shall be subject to cross-examination, and his affidavit shall have the same effect (as nearly as may be) as the affi- davit of the party, unless where the Court or Judge sees reason for holding otherwise." fiufe .S. C. 226. ' ' Persons who have ceased to be officers of a corporation may be examined in the same manner as existing officers." Rule 8. C. 227. Examination of An engine driver, and paymaster, were held not to be officers lalion* ° '^°'^'"'' liable to examination for discovery : McLean v. G. W. R. 7 P. R. 358 ; nor a "tie inspector " of a railway company : Dakielv. O. T. R.]Oo.' Chancery Order 64. 57 •6 P. R. 307. A local agent of a chartered bank was held liable to such examination : Gomolidated Bank v. Ntilon, 7 P. R. 251, and a sub-editor of a newspaper : Maitland v. Qlobe Printing Co. 19 0. L. J. 174. The Order applies to cases where the officers are made parties for Officers may be ' ' discovery only, " but where the plaiutiif charges the officers of a charged with corporation with collusion, and conspiracy, to deprive plaintiff of his wrongful i«rts. rights, or damages are claimed against them for wrongful acts, such officers may be properly made defendants notwithstanding this Order ; Cvihhei'i v. Tim Commercial Travellers' Association, 24 Gr. 531 ; Oline. V. The Mouutainview Cheese Factory 20 Gr. 227 ; Belts v. Xdlson, 3 L. R. Chy. 429 ; 5 L. R. H. L. I. The examination may be had as soon as the statement of defence of the corporation has been filed, or the time for filing it has expired . Davis V. W^ickson, 18 C. L. J. 166. Where the officers of the company required to be examined are resident out of the jurisdiction, see 41 Vict. c. 8, ». 9, (0.) ; Moffat f V. Prentice, 6 P. R. 33. As to whether an order is necessary to entitle the plaintiff to make the examination, see post Ord. 138, but see Consolidated Bank v. Xeiloii, supra where an order was made ; that, however, was tor an examina- tion under Ord. 64, which is not so wide in its terms as this Order 64- Where a bill is filed by a Corporation aggre- in a suit against ■^ ^ '^'-' a corporation ag- gate the defendant may, after filincr his answer exam- gi-egate, officers ^ ^ ' ° of corporation ine for discovery such officer of the Corporation as may be examined •^ ^ for discovery. would under the former practice have been made a party defendant to a cross-bill filed for discovery. Ord. 64 appears to be applicable to actions in the Chancery Divi- sion ; the practice at law was regulated by R. 8. 0. c. 50, s. 156, .ind 42 Vict. c. 15, s. 7, (0. ) The procedure under those Acts and under this Order, seems to be recognized as being still in force. See Bides S. C. 220, 227. The time when the examination could be made, differed at law When examina- and in equity. In actions in the Chancery Division the practice on ''°° ""''' '"^ '""'• this point is still regulated by this Order, and in the other Divisions by B. S. 0. c. 50, ss. 156, et. .leq. and 42 Vict. o. 15 s. 7, (0.) Under Ord. 64, the examination may be made, as soon as the defendant has filed his defence, and under the statutes, when the cause is at issue. See Holmested's Manual, Pr. 234. As to whether the practice under Ord. 63 may be followed in the Queen's Bench, and Common Pleas Divisions, see note to Ord. 1, and Newhiggen-hy-the-sea Gas Co. v. Armstrong, 13 Ch. D. 310 ; Nurse v. Durnford, lb. 768 ; LaGranrje V. McAndrew, 4 Q. B. D. 210. 58 Chancery Orders 65 — (56. made saving rights of absen- tees. Ord. 65 how tar in force. Case.s in whicli Order acted on. Ill Conxoliilated Bank v. NeXlon, 7 P. R. 251, an order was made for the examination, but it is not clear that any order is necessary ■ see OnlAZS post. to non-jStade""" 65. Where a defendant, at the hearing of a cause, *dec™emarbf'^' objects that a suit is defective for want of parties, the Court, if it thinks fit, may make a decree saving the rights of the absent parties. (20th Dec. 1865 ; Ord. 15.) This Order affects not only the practice of the Court, but to some extent its jurisdiction, and it would seem, if it be still in force, to be applicable to all the Divisions. Each of the other Divisions now having all the jurisdiction which the Court of Chancery formerl}' possessed. The Court may now in every action deal with the mat- ters in controversy, so far as regards the rights and interests of the parties actually before it : Buh S. C. 103. The Court will only act under Ord. 65 where justice can be done to all parties notwithstanding the defective constitution of the suit : Lambert v. Hutchison, 1 BeaA'. 277, 286. Where in a suit to set aside an illeged fraudulent conveyance by a debtor, it appeared at the hearing that a note pro conf^sso entered against one of the defendants, the original debtor, had been waived by a subsequent amendment of the bill, the Court dismissed the biU as against that defendant, on the application of the plaintiff, without the dismissal being equivalent to a dismissal on the merits, and made a decree, saving the rights of that defendant : Waddle v. McGinfu, 15 Gr. 261. A decree has been made under this Order in the absence — of the assignee of a bankrupt : Mayberyv. BrooTdny, 7 D. 0. M. G. 673 ; — of a mortgagee : Feltham v. Clark, 1 D. G. & L. 307 ; — of a person enti- tled in. a remote contingency: Daubiizv. Peel, 1 Coo. temp. Cott- 365 ; — of the heir-at-law of the last surviving trustee, and o the per- sonal representative of a testator : Faidkner v. Daniel, 3 Hare. 199. An objection for want of parties should be taken as soon as possi- ble, and not postponed until the hearing : Luh: v. S. Kensington, 11 Ch. D. 121 ; Sheehan v. Great Eastern R'y Co. , 16 Ch. D. 59; 29 W. R. 69 ; the objection should be taken by motion, and not merely raised by statement of defence ; lb., and see ante note to Ord. 57, and see Vallance v. Birmingham, 24 W. E. 454; Roberts v. Evaiix, 7 Ch. D. 830 ; 26 W. E. 280, where no costs of pleadings were allowed to plaintiff from the time the objection was taken. v.— PLEADINGS, AND WRITTEN PROCEEDINGS GENERALLY. Pleadings, kc, 66- Pleadings and all other proceedings in a cause printeT^ ^° ma}' Ije written or printed, or partly written and Otgectionsfor Trant of parties must be taken promptly. Chancery Orders 67 — 68 59 partly printed : and where wholly printed, dates and sums occurring therein are to be expressed by figures instead of words. (6th Feb. 1865 ; Ord. 1 and 2.) The provisions of Ord. 66, 67 seem in the main superseded by Rules S. G. 129, 451, 452, 453, 464 ; see /. A. s. 91, as to mean- ing of word "pleading." 67- All pleadings and other proceedings are to be Pleadings how to ^ , 1 1 •! 1 T ^^ written, or written or printed neatly and legiblj^ on good paper, printed. of the size and form heretofore in use ; and if printed, the same are to be printed with pica type leaded, and the solicitor is not to be entitled to the costs of any pleading or other proceeding which is not in conformity with this Order ; and the Clerk of Records and Writs, or Deputy Registrar, is to refuse to file the same. (6th Feb. 1865 ; Ord. 3.) See note to Ord. 66. The Rules S. C. do not expressly require proceedings if written, to be written legibly — the costs of illegibly written affidavits were disallowed : Burnham v. Garvey, 27 Gr. 80 ; nor is there any provision requiring the officer to refuse to file pro- ceedings not conforming to the Rules S. C' The provision as to costs in Ord. 67, would seem to be still in force. See Rule S. 0. 445. 68- Every bill, answer, and petition filed, and every pleadings ana afiidavit to be used in any cause or matter, is to be bf drawn.''"'' '° divided into paragraphs, and every paragraph num- bered consecutivelj'^, and, as nearly as may be, is to be confined to a distinct portion of the subject. No costs are to be allowed for any bill, answer, petition, or affi- •'. ^ Costs of proceed- davit, or part of any bill, answer, petition, or afiida-ingsin Tioiation ' ^ ■ . ofOrdertobedis- vit, substantially violating this order; nor shall any allowed, affidavit violating this order be used in support of, or opposition to, any motion, without the express permis- sion of the Court. (13th April, 1859 ; Ord. 4.) The first part of this Order is in substance included in Rules S. G. 128 and 464. The provision as to costs so far as affidavits are con- cerned, is also included in Rule 8. 0. 464 ; but as to the disallowance of costs of pleadings not conforming to the Rules S. G. it would seem this Order is still in force. See Rale S. G. 445. 60 Chancery Orders 69 — 71. BS'Sma" 69. If upon the hearing of a cause or matter, the punged!" ''^" Court is of opinion that any pleading, petition, or affidavit, or any part of such pleading, petition, or affidavit is scandalous, the Court may order such pleading, petition, or affidavit to be taken off the file, or may direct the scandalous matter to be expunged, and is to give such direction as to costs as it may think right. (23rd Dec, 1857 ; Ord. 3, s. 9.) As to scandalous matter in the statement of claim, or defence, see EuU S. 0. 178. Application to- Nothing can be scandalous which is relevant, per Cotton, L. J. ; datous mLtte°" -^'«''«'' "*'• O™™' ^ Oh. D. 653 ; Jones v. Huntingdon, 3 Chy. Ch. R. 117 ; B V. W , 31 Beav. 342. The Court has power to strike out scandalous matter from an affidavit, or to order the person who has filed it to pay the costs of it, on the application of any per- son, even a stranger to the action, or inero motu. It is not necessary that the applicant should be the injured person : Oracknall v. Jan- son, 11 Oh. D. 1 ; Middlemas v. Wilson, 10 L. R. Oh. 230 ; Sadlier v. Smith, 7 P. R. 409 ; 15 0. L. J. 52 ; Goddard v. Parr, 24 L. J. Oh. 783. Costs of motion The costs of the motion are between solicitor and client : Ex parte Thorp, 1 Ves. 394 ; Ex parte Porter, 2 M. & Ayr. 220 ; Ex parte Simpson, 1 5 Ves. 476, and both the party and his solicitor concerned are liable to pay costs of an application : lb. ; Rattray v. George, 16 Ves. 232, and see Bishop v. Willis, 5 Beav. 83 ; Anon, 4 P. R. 242. As to the disallowance of the costs of unnecessary matter in plead- ings and affidavits, see Pule S. C. 435. Motionmaybe "^Q ^ motioH to havc any pleading, petition, or made at any J r o^ xr ' time before hear- afljdavit taken oflf the file for scandal, or to have the ing. scandalous matter expunged, may be made at any time before the hearing of the cause or matter. (23rd Dec. 1857 ; Ord. 3, s. 10.) Scandal in state- As to scandalous matter in statements of claim or defence, see Mence. " *"° ""^ -^'''^ '^- ^- ^'^^ > ^^ ^° disallowance of costs of unnecessary matter contained in pleadings and affidavits, see Mule S. O. 435. Master no power Under Ord. 70 the Master in Chambers, or Local Judge, or Master, teiroeatories for ^^^ ^° power to strike out for impertinence, interrogatories which impertinence. have been delivered for the examination of a witness under commis- sion : Williams v. Corby, 8 B. R. 83. For form of notice of motion, see Leggos's Forms, 2nd ed., No. 526. 71. If upon the hearing of a cause or matter, the Chancery Ohders 72 — 95. 61 Court is of opinion that any pleading, petition, ov affi- °°^^'' "f mnecea- ^ *' ^ O' ir ' sary matter in davit is of unnecessary length, the Court may either P'^^'dings. &c. direct payment of a sum in gross or in lieu of taxed costs therefor, or it may direct the taxing officer to look into such pleading, petition, or affidavit, and to distinguish what part or parts thereof is, or are, of unnecessary length, and to ascertain the costs occa- sioned to any party by any unnecessary matter ; and the Court is to make such order as it thinks just, for the payment, set-off, or other allowance of such costs, by the party, or his solicitor. (23rd Dec, 1857 ; Ord. 3, s. 11.) The provisions of this Order appear to be superseded by Rule S. C. How far Ord. 71 435 ; see however Mule S. O. 445 with regard to the provision en- ™ ''^' abling the Court to direct payment of a sum in gross in lieu of taxed costs. Order 72 provided that all the pleadings in any cause must be filed at the same office, and is now superseded, see Ritles S. Q. 50, 150. 73. Every paper to be filed in the office of the Clerk oSHf r'.Vw! of Records and Writs is to be distinctly marked at or ^°-^^^^f^^ near the top or upper part thereof on the outside, with place where bm the name of the City, or Town, in which the bill is filed. And the Clerk of Records and Writs is not to file any paper which is not so marked. (1st April, 1867 ; Ord. 1.) This Order seems to be still in force, but must be read " writ of summons issued," instead of the words " bill is filed." It appears to apply only in the Chancery Diyision. The object of the Order is to assist the Clerk of Records and Writs in filing papers away, and to enable him to distinguish papers filed in town, and country, causes. Orders 74-76 related to the form of Bills of Complaint ; Order 77 Ords. 74-96. to the filing of Bills ; Orders 78—84, to the amendment of Bills ; and Order 85 to the filing of Bills for Discovery, and are now efi'ete. Orders 86-87 related to the Service of BOls and are obviously effete. Order 88 was abrogated by Ord. 623. Order 89 related to answering amended bills, and is effete. Order 90 was abrogated by Ord. 623. Orders 91-95 related to Service of Bills, and are now effete ; Ord. 95 was abrogated by Ord. 623. 62 Chancery Orders 96 — 138. Ords. 90-103. Orders 96-98 related to the AUowanoe of Service of Bills, and are now eflfete. Orders 99-102 related to Substitutional Ser\'ice of Bills, and are now eflfete. Order 103 related to Afiadavits of Service of Bills, and is now eflfete. Ords. 104-119. Ords. 120-121. Ords. 122-133. Ords. 134-13T. Examination of parties, for dis- covery. VIII.— TAKING BILLS PRO CONFESSO. Orders 104-111 related to taking Bills pro confesso, and are now effete. Order 112 regulated right of defendant against whom bill is pro confesso to appear at the hearing, and is now effete. Order 113 provided that a decree founded on a Bill taken pro con- fesso, was to be absolute, except in certain cases, and is now eflfete. Orders 114-116 related to proceedings for making absolute decrees nisi, and are now eflfete ; except as to decrees nisi pronounced prior to The Jttdicature Act. Order 117 related to letting in defendant to answer, after decree nisi, and is now eflfete. Order 118 related to decree which may be made on hearing pro confesso, and is now eflfete. See Rule S. O. 211. Order 119 provided that the representatives of parties should be bound by, and be enabled to enforce, decree made on a bill taken pro confesso, and is now eflfete. IX.— DEMURRERS. Orders 120-121 related to Demurrers, and are now obsolete. X.— ANSWERS. Orders 122-133 related to Answers, and are now obsolete. XL— PRODUCTION OP DOCUMENTS. Orders 134-137 related to Production of Documents, and are now obsolete. See Rules 8. O. 222, 228, 237, 238. XII.— EXAMINATION OF PARTIES. 138. Any party to a suit may be examined by the party adverse in point of interest, without any special order for that purpose ; and may be compelled to attend and testify in the same manner, upon the same terms, and subject to the same rules of examination, as any witness, except as hereinafter provided. (3rd June, 1853 ; Ord. 22, s. 1.) Chancery Oeder 138. 6S This Order is still in force, under The Judicature Act : see Bules O"^*-. 138, how tar in lorce. 5. C. 219, 220 ; Banic of British North America, v. Eddy, 19 C. L. J. 192; and note at the heading of Rules S. C, and regidates the practice in the Chancery Division. The practice in the other Divisions con- tinnes to be governed by S.fl.O., c. 50, ss. 156 et seq., as altered by the Buies S. C. (See Mule S. C. 224) . As to whether the practice under this Order may be followed in actions in the Queen's Bench, and Common Pleas, Divisions, see note to Ord. 1, ante. Parties adverse in point of interest.- Under the English Ord. ^^^^^^^ ""^ 31, r. 1, providing for the examination of the "opposite party or parties," it has been held that a party added by the defendant in a counter claim, is not an opposite party as regards the plaintiff : Molloy V. Kilby. 15 Chy. D. 162. But a third party, who has been notified by the defendant under Sides S. C. 107, lOS, and has ap- peared and obtained leave to defend, is liable to examination by the plaintiff, and is entitled to examine the plaintiff in the same manner as an original defendant : McAllister v. Bisliop of Rochester, 5 C. P. D. 194 : BradUjY. Clark, 19 C. L. J, 193. The oflScers of a defendant corporation, may be examined by the plaintiff, Ord. 63 ; and the officers of a plaintiff corporation, by a defendant, Ord. 64. See notes to those Orders. As to the time for making the examination, see post Ord. 140. How attendance procured. — When a party resided in Quebec, How attendance a subpoena requiring his attendance for examination in Ontario was P^'"^"'*''- ordered to issue under C. S. C, e. 79, s. 4: Moffatt v. Prentice, 6 P. E. 33 ; Bank of British Nm-th America, v. Eddy, 19 C. L J. 192 ; and see Morell v. Morrison, 6 P. E. 210. But such an order will not be granted ex parte : Moffatt v. Prentice, supra ; and see Deioalt V. Hughitt, 7 P. R. 323. The party desiring the examination is also entitled to a commission ; Stratford v. O. W. Ry. Co., 6 P. E. 91. The party to be examined must be served with a subpoena, and paid proper witness fees : Mc3Iurray v. O. T. Ry., 3 Chy. Ch. R. 130; Vardon v. Vardon, 7 P. R. 436. A subpoena dated prior to the time when the party issuing it was entitled to examine the party served therewith, is irregular : McMurray v. G. T. Ry. supra. The solicitor of the party to be examined should also be served with a copy of the examiner's appointment : Fowler v. Boulton, 12 Gr. 437. Where the party to be examined is a resident out of the jurisdic- tion but temporarily present within the jurisdiction, and about to re- turn to his home, $1 is an insufficient witness fee on which to det.iin him five days in order to attend the examination : Bolkoiv v. Foster, 7 P. E. 388. The Examination. — The Examiner's office is not a public Court, Examiner's and he has no discretion to admit the public, if objected to by any »ffl^''^°°^"' »"''" of the parties: Re Western of Canada 0. L. & W. Co., 6 Chy. D. 109. -64 Chancery Orders 139 — 140. Exclusion of par- Where several parties attend for examination, the Examiner *"^^' may, under R. S. 0. c. 50, s. 260, exclude those in the same interest, while the others are under examination ; but one of them should be allowed to remain for the purpose of instructing counsel, subject to his being first examined Sivewright v. Sivewright, 8 P. R. SI. The refusal to comply with the Examiner's ruling is a contempt of Court : Sadlier v. Smith, 14 C. L. J. N. S. 30. A foundation must be laid in the pleadings for questions asked on the examination : Dickson V. Oovert, 2 Chy. Ch. R. 242 : mchoU v. Elliot, 3 Gr. 531J ; Proctor V. Grant, 9 Gr. 31. The party may be examined under this Order, and may be subse- quently cross-examined on his affidaidt on production in the Chancery Division as of course. Usually it is advisable to postpone the exa iii- nation until after the affidavit on production has been filed. If. the examination is unnecessary, or vexatious, the party taking it may have to pay, or at all events be disallowed, the costs of it - Dobson v. Dobson, 7 P. R. 256, over-ruling Paxton v, Jones, 6 P.R. 135. Place ofexamin- Place of Examination. — The Examination must usually be had *''°°' before a Master, or Special Examiner, in the county where the party to be examined resides : Gallagher v. Gardiner, 2 Chy. Ch. R. 480 ; McDermid v. McDermid, lb. 372 ; Gampbell v. Tucker, 7 P. R. 135 ; Kahn v. Redford, 3 Chy. Ch. R. 55 ; and note as to this case Cooper's Digest, 1873, p. 111. Party for whose Order 139 provided that a person for whose immediate benefit a benefit suit pros- suit is prosecuted or defended, is to be regarded as a party for the derl, may be ex- purpose of Ord. 138. This Order is superseded by Rule S. C. 224. Amioed. nj^ person for whose immediate benefit a suit is prosecuted or defended, is to be regarded as a party for the purpose of examination or production of documents. '' Rule S. C. 224. Time when ex- 140- A plaintiff may be so examined at any time i" had. '"" ""^ after answer, and before and at the hearing of the cau.se ; and a defendant may be examined at any time after answer, or after the time for answering has expired. (3rd June, 1853 ; Ord. 22, s. 7.) Ord. 140 how far '^'"^ Order is still in force and regulates the practice in the Chan- in force. eery Division— as to the other Divisions, see R. S. 0. e. 50, ss. 156, et. seq. 42 Vict., c. 15, =. 7, (0). As to whether the practice under this Order may be followed in actions in the Queen's Bench and Common Pleas Divisions, see note to Ord. 1 ante. Party may be ^ P^rty may be examined as a witness in support of a motion, witness'* "' * although the time for examining him under this Order may not have arrived : McOlennaghan v. Buchanan, 7 Gr. 92. Chancery Orders 141 — 143. 65 Under Ord. 140, it will be noted that the right of the plaintiff to Tto? for exam- examine only arises after answer, or after the time for answering tiff. ' ^^ '"°' has expired : Davis v. Wichsan, 18 0. L. J. 166. He is not obliged to wait until all of several defendants have filed their statements of defence. If instead of answering, the defendant demurred, the right of examination did not arise until after the demurrer had been dis- allowed, or if allowed with leave to amend, then not until after amendment and the time for answering the amended bill had expired. See Chance v. Henderson, 1 Chy. Oh. K. 30, and it would seem under the new practice if the defendant demurs instead of filing a state- ment of defence, the right of examination is similarly postponed. The right of a defendant to examine the plaintiff only arises after Time for ex- he has filed his statement of defence. dSendant. ^ A defendant is entitled to examine the plaintiff as soon as his co-defendants own statement of defence is filed, he is not obliged to wait until JJ^^d not those of his co-defendants, if any, are filed : Fowler v. Boulton, 12 examination of ' Gr. 437. He need not notify his co-defendants of the examination : P'^""*' Tb. The examination may be had though the cause has been entered for trial -. Clarke v. Uatvhe, 1 Chy. Oh. E. 346. 141. A party SO examined maybe further exam- Party may be ex- ined, on his own behalf, in relation to any matter own behalf in respecting which he has been examined in chief. (3rd June, 1853 ; Ord. 22, s. 3.) See Note to Order 146, post. 142- Where one of several plaintiffs or defendants, hi'terest withmr- who are joint contractors, or united in interest, has may™raam-' been examined, any other plaintiff or defendant, united '"^''' in interest, may also be examined on his own behalf, or on behalf of those united with him in interest, to the same extent as the party actually examined. (3rd June, 1853 ; Ord. 22, s. 3.) See Ord. ] 46 post, from which it would appear that any examina- tion taken under this Order could formerly be read if the examina- tion taken in chief or any part of it were used. But Ord. 146 seems now to be superseded by Bule S. C. 239, which does not give the same right as Ord. 146, did, and therefore, the utility of Ord. 142 seems to some extent nullified. 143- Such explanatory examination must be P™- J™^/"^^™'^ Chancery Order 144. Neglect to make discovery, how punished. FroceedlDgs in default of pro- duction. ceeded with immediately after the examination in chief, and not at any future period, except by leave of the Court. (3rd June, 1853, Ord. 22, s. 3.) 144- A person refusing, or neglecting, to attend at the time and place appointed for his examination, or refusing or neglecting to obey an order for production of documents, may be punished as for a contempt; and the party who desires the examination, or production, in addition to any other remedy to which he may be entitled, may apply to the Court, upon motion, either to have the bill taken fro confesso, or to have it dis- missed, according to circumstances. (3rd June, 1853 ; Ord. 22, s. 5.) The practice in all the Divisions is to the same eflfect as that laid down in this Order. As to the Q. B. & 0. P. Divisions, see 42 Vict., (;. 8, ?. 9 (0) ; and as to procedure for non-production of documents in all the Divisions, see Sule S. C. 236. The defaulting party is entitled to notice of a motion to commit : Sule S. C. 365, or to dismiss, or strike out defence ; and it would seem a notice to commit should be personally served : Mann v. Perry, 44 L. T. N. S. 248; 50 L. J. Chy. 251; WAw. Matheson, 1 Chy. Ch. R. 224. Two day's notice would seem to he sufficient in aU cases. Suk S. C. 407. The party in default may not only he committed, hut if a plaintiff, his action may be dismissed : Republic of Liberia v. Imperial Bank, 9 L. E.. Chy. 569 ; S. C. , as Republic of Liberia v. Roye, 1 App. C. 139 ; Dunn v. McLean, 6 P. R. 156, or if a defendant his defence may be struck out, and the plaintiff be allowed to proceed as if he had not defended. The party must have been regularly sitbpcenaed : McMurray v. G. T. R'y Co., 3 Chy. Ch. E. 130, and paid his proper witness fees : Bollcow V. Foster, fV P. R. 388, or no order can be fmade against him. When a party has attended for examination but has refused to answer questions, the motion should be to compel him to attend again at his own expense and answer the questions, and in default that his action be dismissed, or defence struck out, as the case may require. When such an order has been obtained, and disobeyed, the motion to dismiss the action, or strike out the defence, may be made ex parte ; Dunn v. McLean, 6 P. E. 156. The Master in Chambers cannot entertain applications to commit Chancery Ordehs 145 — 147. G7 for non-production : Keefe v. Ward, 9 P. R. 220 : 18 0. L. J. 166 ; 2 C. L. T. 260. Where an action has been dismissed it will not be restored unless Keatoring action perhaps when the claim would otherwise be barred by the dismissal, non-producticn . e. g. by the Statute of Limitations : Dunn v. McLean, 6 P. R. 156. and see Hodgson v. Paxton, 2 Chy. Ch. R. 398 ; Bank of Montreal V. Wilson, 2 Chy. Ch. R. 117 ; and in Dam/ v. Davy, 2 Chy. Ch. R. 26. 145. The Court, upon such application, may, if it thinks fit, order either that the bill be taken pro con- fesso, or that it be dismissed, as the ease may be ; or make such order as seems just. (3rd June, 1853; Ord. 22, s. 5.) See Note to Ord. 144. 146. Where the examining party uses any portion P°y„n'^^''™e of the examination so taken, it shall be competent for ^^'^ ■" evidence. the party against whom it is used to put in the entire evidence so taken, as well that given in chief as that in explanation. (3rd June, 1853 ; Ord. 22, s. 6.) " Any party may at the trial of an action or issue, use in evidence ^„;j g^ £. 039 any part of the examination of the opposite parties ; provided always, that in such case the Judge may look at the whole of the examuiation, and if he shall be of opinion that any other part is so connected with the part to be so used, that the last mentioned part ought not to be used without such other part, he may direct such other part to be put in evidence. " Rule S. 0. 239. Sule S. G. 239 deals with the same subject as Ord. 146, and ap- pears to be a "special provision " within /. A. S. 12, which super- sedes Ord. 146. Under the former practice the plaintiflf was entitled to read the pi^ntiffformerly defendant's examination as part of his answer in support of a motion ooUUed to read *^ ^^ defendant sex- for decree : Proctor v. Grant, 9Gr. 31 ; Mathers v. Short, 14 Gr. ammation as part 254. The same point was also decided in : Dunnet v. Fwneri, 25 " '^ ™swer. Gr. 199, though not noticed in the report. Under Tlie Jvxiicature Act, it is presumed, the plaintiff will have the same right to read a defendant's examination in support of a motion for judgment. The examination, however, cannot as a general rule be read as evidence against any party except the deponent. 147- A party to the record who admits, upon his . 4. party admit- il i 1, 1- • " 1 ■ J. T ting the posse ss- exammation, that he has in his custody or power any ionofdoou- deed, paper, writing, or document relating to the mat- ordered to pro- 68 Chancery Order 148. ters in question in the cause, is to produce the same for the inspection of the party examining him, upon the order of the Court, or of the Master, or Examiner, before whom he is examined, and for that purpose a reasonable time is to be allowed. But no party shall be obliged to produce any deed, paper, writing, or doc- ument, which would have been protected under the former practice. (3rd June, 18.53 ; Order 22, s. 4.) may order pro- "^^^ power of the Master, or Special Examiner, to order production duction. of documents under Ord. 147, is confined to cases where parties to the record admit the possession of such documents. Where the admission is made by an officer of a corporation, it would seem that the Master, and Examiner, have no power to make the order, but in such a case an application in Chambers would appear to be necessary. See jRide S. C. 221. Production may be obtained under an order of course, as provided by Rules S. 0. 222, 513. The provisions of Ord. 147 are intended to meet the case of a party who, having tiled an affidavit in answer to an order to produce, on his subsequent cross- examination admits that he has other material documents which he has not produced. The examination may be adjourned for the pur- pose of enabling the party to comply with the Master's, or Examiner's, order for production. amfneSordl.r^''" 148- Either party may appeal from the order of the lppeliaibie"°° Mastcr, or Examiner ; and thereupon such Master, or Examiner, is to certify under his hand the question raised and the order made thereon; and the costs of appeal are to be in the discretion of the Court. (3rd June, 1853 ; Ord. 22, s. 4.) dei-'Sr' t'™™ ""^ ^" appeal from a Master is to be brought by notice of motion to ductioD. be given within four days after the decision complained of, or such further time as may be allowed by a Judge. Mule S. C. 427 ; Dayer V. Robertson, 9 P. E. 78.; but see McNeill v. McGregor, 3 C. L. T. 309. The appeal must be to a Judge in Chambers, and must be brought on to be heard, within eight days after the decision : Ih., or such further time as may be allowed by a Judge : Rule S. C. 427. In the Chancery Division such appeals are heard on Mondays, and in the other Divisions on Tuesdays and Fridays, except in vacation. There is no special Order regulating appeals from Special Ex- aminers, but it is presumed they should be brought and prosecuted in the same manner as appeals from Masters. As to documents privileged from production, see Holmested's Manual, Pr 239-242 ; Maclennan, 239. Chancery Orders 149 — 166. 69 XIII.— REPLICATION— JOINING ISSUE. Orders 149-155 related to replication, time for filing, &c., and are O''^- l*9-l6o. now obsolete. XIV.— NOTICE TO ADMIT. Orders 156-157 related to notices to admit, and are now super- ^'^- 156-16f . seAedhy Rules S. C. 241-243. XV.— SETTING DOWN AND HEARING. Orders 158-164 related to motions to change the venue, setting Ord. 158-164. down causes for hearing, &c., and are now obsolete. See Sales S. C. 254-269. 165. Where the hearing is to be had in any town Pleadings to be o •' transmitted to or place, other than that in which the pleadings are pi'"=? "f '"«'> <"» s: ^ r o precipe. filed, it shall be the duty of the party setting down the cause to deliver to the Clerk of Records and Writs, Or the Deputy Registrar with whom the pleadings are filed, a sufficient time before the day fixed for the hearing, a . precipe requiring him to transmit to the Registrar, or Deputy Registrar, at the place where the , . ■j.T.ijj.i, IT J -UiT. Costs of sending hearing is to be had, the pleadings and such other and returning papers as may be specified in the precipe ; and at the same time to deposit with him a sufficient sum to cover the expense of transmitting and re-transmitting such pleadings and papers ; and thereupon it shall be the duty of the Clerk of Records and "Writs, or Deputy- Registrar, forthwith to transmit the pleadings and such other papers as may be specified, accordingly. (10th Jan., 1863; Ord. 3.) This Order appears to be still in force ; but now that a certified copy of the pleadings have to be left on entering an action for trial : Huh /S'. 0. 262, there is not the same necessity as formerly of having the original pleadings in Court. Order 166 provided that " No evidence to be used on the hearing Ord. 166. of a cause other than, the examination of a party under Ord. 138, is to be taken before any Examiner, or Officer of the Court, unless by the order first had of the Court or a Judge thereof, upon special grounds adduced for that purpose. " This Order is now obsolete : see Rules S. 0. 239, 282, 285, 301-5. Commissione to take evidence. 70 Chancery Orders 167—168. 167. Witnesses resident out of the jurisdiction may be examined, as heretofore, upon commission. (23rd Dec, 1857 ; Ord. 2, s. 3.) The procedure in obtaining and executing commissions to take evidence abroad is regulated by Rules S. O. 286-300 : see Hobne- sted's Manual, Pr. 164-169. Before judgment, a commission cannot be issued without an order. Ordinarily, an order for a commission to take evidence abroad will not be granted until the cause is at issue : Royal Canadian Banh v. Cummer, 2 Chy. Ch. R. 388 ; Allan v. Andrews, 5 P. R. 32. But on a motion for judgment for administration, or partition, in Cham- bers, after the notice of motion has been served, an order may be obtained for a commission to take evidence in support of the motion, the application should be made on notice to the opposite party : Farrell v. Cruikshanh, 1 Chy. Ch. R. 12. An order for a commis- sion to take the examination of any party, or officer of a corpor- ation, resident abroad, for discovery under Ord. 138, 63,64, may be obtained, but not before the party seeking to make the examination is entitled to take it : Cliance v. Henderson, 1 Chy. Ch. R. 30, and see Stratford v. Oreat Western Railway Co., 6 P. E. 91 ; or where the party or officer is resident in Quebec, he may be sum- moned by subpoena, to be examined in Ontario : Moffatt v. Prentice, 6 P. R. 33; G. S., C. c. 79, s. 4;'R. S. 0. 781. A commission may also be issued to take evidence abroad to be used on a reference before a Master, in such a case no order is necessary, but the com- mission may issue on the Master's certificate : see Ord. 221 and notes. A commission will not be ordered as of course : Price v. Bailey, 6 P. R. 256; Vivian v. Mitchell, 13 C. L. J. N. S. 198 ; Berdon v. Greenwood, 46 L. T. N. S. 524, note a : Re Boyse Crofton v. Crqfton, 46 L. T. N. S. 322. Formerly, in Chancery a commission might be opened by the officer to whom it was returned, on due notice to all parties interested, without an order : Chalmers v. Plgott, 1 Chy. Ch. C. 282 ; but at law an order was obtained ex parte for opening the commission, and notice was given to the opposite party of the time of opening : NeaU V. Withrow, 4 U. C. L. J. 88; Gordon v. Fuller, 5 0. S. 174; but where the evidence was not published imtil the trial, the commission might be opened in open Court without a special order, and the evidence might be used by the opposite party, though he had not joined in the commission : Gordon v. Puller supra. Order 168. Order 168 related to examination of witnesses at the hearing, &c., and is now obsolete : see Rules S. G. 282, 271, 272, 428. Not ordered as of course. Opening com- mission. Chancery Orders 169 — 175. 71 169- Causes are to be argued at the same time that the witnesses are examined. (10th Jan., 1863 ; Oi'd 2.) See J. A. s. 45. Notwithstanding this Order, the Court after hearing the evidence, frequently postpones the hearing of the argu- ment to some future day. Orders 170-171 related to the examination of parties as wit- Ord. 170-171. nesses, and were practically abi-ogated by H. S. 0. c. 62, s. 4. 172. A witness may be recalled for further examin- Recalling wit- . . . . nesa. ation, as in trials at nisi^ prius, without any order of the Court having been obtained for that purpose. (23rd Dec, 1857 ; Ord. 2, s. 12.) 173. Articles are not to be filed for the purpose of ^iBcrediting; wu- discrediting a witness ; but witnesses may be called for that purpose, without the leave of the Court ; arid they are to be examined at the same time as the other wit- nesses, unless the Court otherwise orders. (23 Dec, 1856 ; Ord. 2, s. 13.) 174. Any party is to be at liberty to make use of ub/rty"^ u.'e'" the evidence of a witness adduced b'y another party to Cyln°y otw""*'* the suit. (23rd Dec, 1857 ; Ord. 2, s. 15.) ' i''''*^- The evidence taken by any party under a commission may be called for and used at the trial by any other party : Gordon v. Fuller, 5 0. S. 175, and see post Ord. 178. 175- A party shall be entitled, upon notice without P';?'"'*.''™', . , ^ taken m other order, to use depositions taken in another suit, in cases "^f^ ™?y "^ ■^ ' read, without where under the former pz-actice, he was entitled, upon °'"'^'"'' '**^"- obtaining the common order for that purpose, to use such depositions, (28th April, 1862) Under the common order to read depositions taken in another Effect foj merly of cause, depositions could only be read where the other suit raised the "'d'"'' to read ^ aepositions, &c., same issue and was virtually between the same parties, i. e. , between in anothpr cau^i-. persons representing the same interests : Coui-t v. Holland, S P. E. 219 ; except in cases where hearsay, and reputation, would be good evidence, or in cases where the existence of a custom, or the right to tolls, was concerned, in these latter classes of cases, depositions were admissible as against other parties, provided they were not made post litem motam . But even then, if the question at issue were not precisely the same in both suits, the depositions in the former 72 Chanckry Ordeks 176 — ^178. suit were not admissible. Where a person who had given evidence in an action at law between substantially the same persons as were parties to a suit in Chancery, was afterwards committed to the penitentiary and refused to give evidence in ' the Chancery suit, the Court ordered the witness's evidence given at nm priuH to be read from the notes of the Judge who had tried the action at law : SwUzer V. BotiUon, 2 Gr. 693. See further as to practice on this subject, Danl Pr. (by Perkins) p. 1006 ; Republic of Peru v. Eir.o, 32 L. T. N. S. 598. pSficuiM-s"' 176. At the hearing of any cause, or of any further flf pmhSim directions therein, affidavits of particubir witnesses, or uS'at'h^arings, s-ffidavits as to particular facts and circumstances, may or''by°i'eaTeof thebe used by consent, or by leave of the Court; and such consent may be given on behalf of person.s under dis- abilitj-, with the approbation of the Court. (3rd June, 1853 ; Ord. 20, s. 4.) Ord. in force This Order is in effect superseded so far as it relates to evidence at 'hearin"-.=: on the trial of actions, by 7?«fes S. 0. 283, 301. It would seem to be ^■^'- still in force as regards hearings on further directions . As to matters which may, and may not, be proved by affidavit under this Order, see Danl. Pr., 5th ed., 777, 1236 ; Devey v. Thorton, 9 Ha. 233 ; Fowler v. Seyiml, 15 Jur. 1019 ; Delevante v. Child, 6 Jur. N. S. MS ; Bush V. Wathina, 14Beav.33: Hoghtoii v. Hoghtoii, 15 Baav . 278 ; Bear v. Smith, 5 D. & S. 92 ; Fcdlows v. Dillon, 2 W. R 507 ; Batemaii v. Manjerkon, 2 W, R. 607 ; Howard v. Chaffers, 11 W. R. 585 ; Evans v. Leioi.i, 2 L. T. N. S. 559; Fleming v. East, Kay App. lii. Kxhibits at hear- 177. Exhibits put in at the hearing of a cause are to iiifr, how to be , mnrked, be marked thus : "In Chancery [short title}. This exhibit (the property of ,) is produced by the plaintiff (or defendant C, as the case may be,) this day of 186 , A. B.," (Registrar, or Deputy Registrar). (1st April, 1867 ; Ord; 4) OT SiMntiry 178- Where a party or witness is examined at the ^ ir »/ tamed on con- order from the Court, or from a Master, upon condition, J'''°° deemed to ' ' r J be abandoned so and fails to perform or comply with the condition, he is fo'^^jt™ Mafn to be considered to have waived or abandoned the order, tio^n pMfOTmed* as far as the same is beneficial to himself, and any other party or person interested in the matter, on the breach or non-performance of the condition, may either take such proceedings as the order in such case may warrant, or such proceedings as might have been taken if the order had not been made. (3rd June, 1853 ; Ord. 24, s. 4.) {Ung. Con. Ord. 23, r. 22.) As to the execution of judgment granted upon condition, see Bule S. C. 345. 78 Chancery Order 197. Business to be transacted in Chamfeers. Applications for : — Sale of infants' estate. Guardianship, maintenancej &c. Administration. Time to defend. Leave to amend. To change venue. To postpone trial. Production. Conduct of suits_ Management of property. Payment into, or out of, Comi;. XVII.— CHAMBERS. 197. The following business shall be disposed of in (Jhambers, togetherwith such other matters as the Court from time to time thinks may be more conveniently disposed of there, than in full Court, viz : — 1. For the sale of the estates of infants, under the Consolidated Statutes of Upper Canada, chap- ter 12, s. 50; 2. As to the guardianship, maintenance, and ad- vancement of infants ; 3. For the administration of estates upon motion, without hill ; 4. For time to answer or demur ; 5. For leave to amend bills ; 6. For changing the venue ; 7. To postpone the examination of witnesses, or to allow the production of further evidence ; 8. For the production of documents ; 9. Relating to the conduct of suits or matters ; 10. As to matters connected with the management of property; 11. For the payment into Court of moneys, by par- ties desiring, on their own behalf, to pay in the same. (3rd June, 1853 ; Ord. 34, s. 1.) Offlcers -who may Under The Judicature Act and Rules S. 0., the business in Cham- in Chambers. ''^rs may now, for tlie most part, be transacted before the Master in Chambers, or any OfBoial Referee, sitting for him, and in country cases before the Local Masters, or County Court Judges. Certain matters, however, are excluded from their jurisdiction : RvM S. C. 420 ; Ord. 560 ; R. S. 0. ^. 39, s. 29 ; Reg. Gen., Feb., 1870, 29 Q. B. Applications ex- 623, and see Holmested's Manual Pr. 210, 211, 214. To the mat- risSctio'nSMaa-*^'^^ there noted as being beyond the jurisdiction|of these Judges, ter in Chambers, and Officers, may be added, (1) Applications to set aside fraudulent conveyances by judgment debtors : Queen v. STtiith, 7 P. R. 429 ; (2) Applications to transfer actions from one Division to another : Chancery Order 197. 79 Hilliardv. Thurstin, 2 C. L. T. 261 ; 18 C. L J. 180 ; (3) Applica- tions to commit for non-production : Keefe v. Ward, 18 C. L. J. 166, 2 C. L. T. 260 : Darling v. Darling, before Dalton, Q". C. , Master in Chambers, 28 Feb., 1882. Additional cases to which jurisdiction in Chambers has been extended : Subsequent Statutes, and Orders, extend the jurisdiction in Cham- Ji^urisdiction in bers to other matters, in addition to the business enumerated in tended in certain Ord. 197, e. g. ;— '^^■ 1. Summary applications to set aside fraudulent conveyances by Applications to execution debtors : S. S. 0. i;. 49, s. 10, or for sale of equitable in- }^l^^^li,^ <,„„. terests of execution debtor in lands; lb. s. 11. Applications of this ycyauces by kind can only be made to a Judge : Queen v. Smith, 7 P. E- 429. o^gf Formerly in such cases the application was made for an order nisi : Wark V. MouUon, 7 P. R. 144, but now it is presumed the proper mode of procedure is to serve a notice of motion. See Rules S. C. 405, 406, 407. In some cases leave to serve notice of motion may be necessary. See Holmested's Manual, Fr. 201. Substituted service on an absconding execution debtor may be allowed : Dobson v, Marshall, 9 P. K 1. The debtor may be ordered to pay the costs of an application for sale : Watts v. Hobson, 7 P. E.. 334. 2. Motions for judgment in ordinary mortgage actions, for sale, or Motions for juds - foreclosure, or for redemption, where infants are concerned : see '^^^ ^ses.™" Ord. 434, 645 ; Rule S. O. 79. The Master in Chambers, Official Keferees when sitting for him, and in the cases mentioned in Bale S. C. 422, the Local Masters, and County Court Judges, have jurisdiction to entertain such applications. 3. Motions for judgment, by adult parties, in actions for partition. Partition, under Ord. 640, 641 : motions of this kind cannot be entertained by the Master in Chambers : Re Arnott, Chatterton v. Chatterton, 8 P. R. 39 ; but are iu certain cases within the jurisdiction of the Local Masters, but not of the County Court Judges, unless they be also Local Masters. See Rule 8. G. 422, which in effect limits the jurisdiction of the County Court Judges, who are not Masters, to that exercised by the Master in Chambers. 4. Motions for judgment on summary applications for administra- AaminiBtration. tion, may also be made in certain cases, to Local Masters, under Ord. 638 ; motions of this kind may also be made to the Master in Chambers, and County Court Judges who are not Local Masters, but if opposed, their jurisdiction is excluded under Ord. 560, Rules S. C. 3, 420, 422 ; but opposed applications for administration are not excluded from the jurisdiction of the Local Masters ; see Ord. 638, Rule S. C. 0. 422. As to procedure on motions for adminis- tration, see Ord. 467, 473, 552, 638, and notes ; Holmested's Manual Pr. 216. 80 Chancery Order 197. To appoint, or dispense with ap- poiDtment of, re- presentative of estate. Habeas corpus. For declaration of lunacy. For jntoent 6. Motions for leave to enter iudement under Bule S. C. 80. under iJ.S. (7.80. „ . ,. . , , , r jr lo convey free 6. Applications to enable the owner of land, to convey free from from dower. jj^g ^^^^^ ^j j^j^ ^^^^^ ^^^^^ ^ ^ q ^ j26, ss. 8, 9, 10, and 43 Vict._, c. 14, o. 4 ; i?e Eagles, 7 P. E. 241 ; Me Campbell, 25 Gr. 187, 480 ; but applications of this kind can only be entertained by a Judge. 7. Applications to appoint, or to dispense with the appointment . of, a person to represent the estate of a deceased person under R. S. 0. u. 49, a. 9 ; see ante p. 32. The Master in Chambers, Offi- cial Referee sitting for him, or Local Masters, and County Court Judges, when acting under Sule S. G. 422, have jurisdiction to entertain such applications : Collver v. Swayzie, 8 P. R. 42. 8. Applications for writs of habeas corpus may be made to a Judge in Chambers ; E. S. 0. c. 70 ; Re Paton, 4 Gr. 147 : but where the cus- tody is not for criminal or supposed criminal matter, see Re Bigger, 10 U. C. L. J. 329 ; Re Hawkins, 9U. C. L. J. 298 ; 3 P. R. 239. As to whether a Judge can in Chambers rescind his own order for a writ of habeas corpus, or quash the writ itself on the ground that it issued improvidently : see Re Ross, 3 P. R. 301. The Master in Chambers cannot entertain applications of this kind. Ord. 560. 9. AppHcations to declare a person a lunatic under R. S. 0. c. 40, 3. 65 ; Re Patton, 1 Chy. Ch. R. 192 : Re Plemming, 13 C. L. J. N. S. 197 ; Re Kelly, 6 P. R. 220, or for a commission de lunatico : Re Stuart, 4 Gr. 44. The supposed lunatic is entitled to notice of the application : Re Miller, 1 Chy. Ch. R. 215, unless the Court on pro- per evidence of its being dangerous, or useless, to serve him, dis- penses with service : Be Newmam, 2 Chy. Ch. R. 390 ; Re Mein lb. 429. Applications of this kind can only be made before a Judge, see Ord. 560 ; but where an order has been made declaring the lunacy, the Master in Chambers has jurisdiction to entertain applications respecting the property of the lunatic, under if. S. 0. o. 40, ss. 67, et seq. When Master in Applications in Cliambers, to whom to be made : j^i^rfstoUon, ma^ Applications proper to be made in Chambers, but which are ex- ters may be eluded from the jurisdiction of the Master in Chambers, Official a Judge. Referee,Local Masters, and CountyCourt Judges, may be made before ii Judge of the High Court in Chambers. In the Queen's Bench, and Common Pleas, Divisions, a Judge sits in Chambers on Tuesday and Friday, and in the Chancery Division on Monday, in each week, except in vacation, when special arrangements are made. Applications which can be made in Chambers should be made there, and not in Court : Moffatt v. Ruddle, 4 Gr. 44 ; Anon lb., 61 ; or the costs may be refused ; Mumey v. Courtney, 10 Gr. 52 ; or allowed only as of a motion in Chambers : King v. Connor, 10 Gr. 364. Chancery Orders 198—199. 81 Matters coming before any officer of the Court having jurisdiction Matters within in Chambers, should not be referred to a Judge because the parties-'"™'''"'.'"'},?^ . . * o , ^ ^ iM aster in Cham- desire it, but only when the officer can certify that it is a proper bcrs not to be case to be heard before a Judge ; Rule S. 0. 426, and matters im- Juag?* *°'"^ * properly referred to a Judge will not be entertained : Hughes v. Hees, 9 P. R. 86. Sale of Infants' Estate S.~As to mode of proceeding for sale of gale of infants' infant's estate, see H. S. 0. u. 50, s. 7f , and Orel. 527 et. seq. and estates, notes. Guardianship, and Maintenance, &c., of Infants.— As to GuardianFhip of mode of proceeding for appointment of guardians, see Orel. 529-30 ; '"'""'s. opposed applications respecting the guardianship of the person, or property, of infants, are excluded from the jurisdiction of the Master in Chambers, see Orel. 560, s. 9, £ule S. C. 420. The authority of the High Court is not excluded by B. S. 0. o. 132, ss. 1-3 ; Be Stannard, 1 Chy. Ch. R. 15. Applications respecting the custody of infants under R. S. 0. c. 130, s. 1, may be made to a Judge in Chambers : see Re Davin, 3 Chy. Ch. R 277 ; Re Keith, 7 P. E. 138 ; Re Eves, 15 Gr. 580; Re Murdoch, 9 P. R. 132 ; Re Smith, 8 P. R. 23 ; Re Scott, lb. 58 ; Re Ferguson, lb. 556 ; but not to the Master in Chambers. See Oi-d. 560, s. 6. Injunctions, and Receivers. — Applications for injunctions, and . receivers, are usually made in Court, but where a Receiver has been receivers, appointed and dies, the application for the appointment of another in his place may be made in Chambers : Gj-ote v. Bing, 9 Hare App. 1. ; but the appointment was made in the first instance in Cham- bers, by consent Bladcborough v. Ravenhill, 16 Jur. 1085, and in a proceeding originating in Chambers, 22 So. Jour. 914. Appeals from the Master in Chambers, Local Masters, County Appeal.'. Court Judges, or Official Referees, where exercising the jurisdic- tion of the Master in Chambers (Rule S. C. 427) ; and appeals from Masters' Reports (Ord. 642); and also appeals from the Taxing Officers {Rule C. S. 447), may now be brought before a Judge in Chambers. Order 198 regulated the course of proceeding, and service of notices of motion in Chambers and is superseded now by Rules S. C. 404-407, 412, 425. 199. Where it appears, upon the hearing of any service of nouce matter, that, by reason of absence, or for any other sufE- chS^ters may cient cause, the service of notice of the application, or^t^f''"^** 11 82 Chancery Oeders 200—201. Or sabiitituted service ordered. of the appointment, cannot be made, or ought to be dis- pensed with, such service may be dispensed with, or any substituted service, or notice, by advertisement, or otherwise, may be ordered. (3rd June, 1S53 ; Ord. 34, s. 5. {Eng. Con. Ord. 35, r. 18.) Service of plead- Every pleading or other document required to be delivered to a ings, c. party, or between parties, shall be delivered to the solicitor of every party who appears by a solicitor, or to the party if he does not ap- pear by a solicitor ; but if no appearance has been entered for any party then such pleading or document shall be delivered by being posted up in the office from which the writ of summons was issued : Rule S. C. 131. In actions, after service of the writ, and the time for appearance has elapsed and no appearance entered, a notice of motion or appoint- ment may be served on any non-appearing defendant by posting up a copy in the office whence the writ issued under Biiie 8. C. 131 : Dymond v. Croft, 3 Chy. D. 512. But where the notice of motion required to be served is the first proceeding, or personal service is necessary on a party who has ap- peared but cannot be found, then Ord. 199 would seem to be in force and to authorize the allowance of substitutional service, or the dis- pensing with service altogether. For cases in which applications of this kind have been made, see Taylor & Ewart. 148. Where acooont 200- Where an account is taken in Chambers, special taken ia Ciiam- ^. . . * bers, special directions may be given with respect to the mode in directions may i . i i . be given as to which the account is to be taken and vouched ; and in vouching, &c . ' taking the account, the books of account in which the accounts required to be taken have been kept, or any of them, shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised. (3rd June, 1853 ; Ord. 35, s. 1.) In this Order the word " shall " is to be read as permissive : Ord. 550. Accounts are now rarely taken in Chambers, except in infancy matters ; a reference to the Master being usually directed. beTroS'ht'ta*" 201- An accounting party is to bring in his account in the form of debtor and creditor, and verify the same Chancery Orders 202-205. 83 by affidavit, unless otherwise directed. The items o-n ^^^° ™''*"* ''^ each side of the account are to be numbered conseeu- nu™e'ed!'° tively, and the account is to be referred to by the affidavit as an exhibit, and not to be annexed thereto, and is to be left at Chambers. (3rd June, 1853 ; Ord. 35, s. 3.) (Eng. Con. Ord. 35, r. 33.) A party who is cross-examined on his aflSdavit verifying his ac- p^^fy intended counta, is, according to the English practice, entitled to notice of ?" ^^ cross-exam- the points on which he is to be cross-examined : Se Lord, Lord v. affidavit entitied Lord, 2 L.E. Bq. 605 ; Wormsley v. Sturt, 22 Beav. 398 ; and it is not *° '""''=^- sufl&oient to state that all the items but one are objected to, but the notice should specify the points on which the cross-examination is to proceed : McArihur v. Dvdgeon, 15 L. K. Eq. 102 ; and see Glover V. ElUson, 20 W. K 408. The cross-examination may be had before the account is vouched : Meachamy. Cooper, 16 L. E. Eq. 102. 202- A party seeking to charge an accounting party Notice of sur- beyond v?hat he has by his account admitted to haves'^en received, is to give notice thereof to the accounting party, stating, as far as he is able, the amount sought to be charged, and the particulars thereof, in a short and succinct manner. (3rd June, 1853 ; Ord. 35, s. 3.) {Eng. Con. Ord. 35, r. 34.) See note to Ord. 237, poel. 203. No state of facts, charges, or discharges, are to no state of facts, be brought into Chambers ; and where original deeds in°'' ° ^ ""^ or documents can be brought in, no copies are to be made without special direction. (3rd June, 1853 ; Ord. 34, s. 4.) See Ord. 229, post. 204. Where directed, copies, abstracts, or extracts of copies, *c., to be furnished if or from accounts, deeds, or other documents, are to be directed, supplied. (3rd June, 1853 ; Ord. 34, s. 4.) See Ord. 230, post. ' 205. Where, in the prosecution of any proceeding Adding parties. under a decree, it appears that some persons, not 84. Chancery Okdees 20G— 209. already parties, ought to be made parties, and ought to attend, or be enabled to attend the proceedings, directions may be given for serving an office-copy of Parties added to the dccrce upon such parties, and upon due service offlce-Iopy"!!? thereof such persons are to be treated and named as '''"■''''• parties to the suit, and shall be bound by the decree in the same manner as if they had been originally made parties to the suit. (3rd June, 1553 ; Ord. 34, s. 6.) See Ord. 244 and notes. offiee.™Ty!"' °° 206- Every office-copy of a decree directed to be served under Order 205, is to be indorsed with a notice to the effect set forth in schedule L hereunder written with such variations as circumstances may require. (3rd June, 1858 ; Ord. 84, s. 6.) See Ord. 245 and notes. Party served 207- A party scrved with an office-copy of a decree may move x ./ x ./ against decree, under Order 205 may apply to the Court, at any time within fourteen days from the date of such service, to discharge the order, or to add to, set aside, or vary the decree. (8vd June, 1853 ; Ord. 84, s. 7.) See Ord, 246 and notes. J^d^oumecTftom'' 208. The Court may adjourn for consideration in bers'^or'^te'"'""" Cihambers any matter which, in the opinion of the versa. Court, may be disposed of more conveniently in Cham- bers ; and any matter pending in Chambers may be adjourned to open Court ; and such matter may be so adjourned at the request of either party, subject to such order as to costs or otherwise, as the Court thinks right to impose. (3rd June, 1853; Ord. 84, s. 3.) Matters ad- 209. Matters adjourned from Chambers are to be iCmferf?" be heard in Court by one Judge, unless by special leave, Judge. ^^™^''' "^hich may be granted ex parte; and without such leave are not to come before the full Court, except by way of rehearing the order made in Court thereon. (20th Dec. 1865 ; Ord. 14.) Chancery Ordee 210. 85 The Master in Chambers, Local Masters, and County Court Power of Muster Judges, are empowered to refer matters coming before them in Cham- refer cases to a bers to a Judge of the High Court : Kuk C. 0. 426 ; but this power ■'^^S^- is not to be exercised at the mere request of the parties, but only Matters impro- where the officer, or County Court Judge, as the case may be, can ^iu'JotZl^n- certify that the case is proper to be heard before a Judge of the tertained. High Court. Matters improperly referred will not be entertained : Hughes v. Hees, 9 P. R 86. 210. A Judge sitting in Chambers may exercise the -'"dgo >■■ cham, ,..,.. . „ , tiers may exer- same power and lurisdiction, m respect of the business ™e powers of '■ ■' > c Court, and also brought before him, as is exercised by the Court; all po^«" "f '*'» °' _ ■' ' Master. orders made by a Judge in Chambers are to have the force and etfect of orders of the Court ; and all or any of the powers, authorities, and jurisdictions, given to the Master by any Act or Acts now in force, or by any General Order or Orders of the Court, may be exer- cised by the Judge sitting in Chambers. (3rd June, 1853; Ord. 34, s.' 2.) XVIIL— MASTER'S OFFICE. The Master in Ordinary, and Local Masters, are aU officers of the masters are offl- Supreme Court, J. A. s. 58, ss. 2, and as such, actions may becers of Supreme referred to them, from any Division of the High Court. See J. A. s. 64.) For list of Masters see Holmested's Manual Pr. 20, 21. The Local Masters, in' addition to their duties as Masters, have also Powers of Local jurisdiction in certain cases in Chamber applications, in actions in chambers, ths Chancery Division; and where they are also Judges of the County Court, their jurisdiction in Chambers extends in certain cases to actions in any of the Divisions : See Holmested's Manual Pr. 213 ; Rules S. G. 422, 423. Formerly a Master in Chancery was debarred from practising as a a s to whether • solicitor in Chancery, or in partnership with any other person prac- Masters may tising as a solicitor in Chancery, even though he received no part of ors; quare. the emoluments : McLean v. Gross, 3 Chy. Ch, R. 432. They might however practise as attorneys in the other Courts. Now, however, that the Masters have jurisdiction in all the Divisions of the High Court, it seems doubtful if they can practise at all as solicitors. There is however no express provision either in The Judicature Act, or Bules debarring Masters from practising ; and see JRule S. G. 422, from which it may be inferred that it was not the intention of The Judicature Act to deprive them of the right of practising. 86 ■ Chancery- Orders. Plaoe of refcr- Under the former practice in Chanceiy the plaintiff was prima facie entitled to have a reference, when necessary, directed to the Master at the place where his bUl was filed : Macara v. Gioynne 3 Gr. 310 ; Watson v. Henderson, 2 Ghy. Ch. E,. 370 ; and the defen- dant might for good cause apply to change the reference : McNab v. 31clnnis. i Chy. Ch. R. 53. Primx fade, The same rule it is presumed will still he followed, and a plaintiff plaintiff entitled -vrill have the right -prima facie to have the reference, if any, directed wheie writ to the Master in the county where the writ issued. Formerly when ^'™^^- it was sought to change the reference on the score of expense, the dif- ference of expense must have been considerable ; and if on the ground of convenience, a clearly preponderating convenience for the proposed change must have been established, and the fact that a defendant was a man in extensive business, or a trustee, was not a sufficient ground for changing the reference : McNab v. Mclnnis, supra ; Jackson v. Harriman, 9 C. L. J. N. S. 29. lleferenoe may Since The Judicatzire Act it has been held that the policy of that what g'rounds'." ^°* '^ *" decentralise business, and to send local matters to the Local Masters, and the fact that a partnership business had been carried on in the county to which it was proposed to change the reference to take the partnership accounts, and that a delay of two months would be incurred by retaining the reference at the place directed by the judgment, was held sufficient ground to warrant the change : AUken v. Wilson, 9 P. E. 75. When Master has When the Master has been professionally concerned for any of the anTw^iceraed' li*ig^nt^> i^ reference to the same or any other matter, that is a sufficient ground for changing the reference : Bigelow v. Bigelow, 6 P. R. 124; Boyd v. Simpson, before Spragge, C, 19th June, 1878. (See E«g. Lib.) But when the reference was directed to a Master who had, prior to the appointment, been counsel for one of the litigants, neither party objecting, and the Master certifying that he acted in the reference at the pressing request of both parties, the Court held that the party against whom the Master reported could not raise that objection on appeal from the report, having taken the chance of the Master's finding in his favour : Cotter v. Cotter, 21 Gr. 159. Where necessarj' Where in the course of a suit it becomes necessary to add as a a°partj.*'''°"'^ ^ P^^y ^^^ Master to whom the cause is referred, the reference wiU be changed on an ex parte application by the plaintiff : Weldon v. TempUon, 1 Chy. Ch. R. 360. Application to be Usually however the party having the conduct of the reference made on notice, jg entitled to notice of any appHcation to change it, and an order made in his absence is irregular and wiU be set aside : McOonnell v McConneU, 3 Chy. Ch. E. 122. Chance KY Order 211. 87 The following Orders 211-257, which regulate the practice in the Master's oflfices, apply to actions in all the Divisions, which are referred to a Master. 211. Every order referring any matter to the Master, order of refer- is to be brought into his office within fourteen days into m. o. witii- after the order is drawn up, or after the same should have been drawn up, by the party having the carriage of the same : otherwise any other party to the cause, or any party having an interest in the reference, may other^party mey assume the carriage of the order, and carry the same rfagrofu!' °^^' into the Master's office. (3rd June, 1853 ; Ord. 42, s. 1.) An order, or judgment, directing a reference is to be bespoken. Time for Issuing and the necessary papers left for preparing tl^e same within seven eMfanV^carry- days after the order, or judgment, is pronounced or finally disposed '°S "*° ^- 0- of by the Court, see Ord. 10, — and Ord. 7, as to meaning of word " order," — and otherwise is not to be drawn up without leave being obtained in Chambers, see Ord. 11. In practice the solicitor having the carriage of the order, or judgment, usually prepares the minutes and within the time limited by Ord. 1 0, procures them to be settled by the Registrar, or obtains an appointment from him to settle them. See Ord. 596. It would appear, therefore, that the party having the conduct of an order, or a judgment, directing a reference, is entitled to at least twenty-one days from the time the order, or judgment, was pro- nounced, or finally disposed of, by the Court, within which to issue the order, or judgment, and carry it into the Master's office. The rule which regulates the question, as to who shall have the Conduct of refer- carriage of an order, or judgment, directing a reference to a Master, ^'f'J"^° ™''' is a technical one, and in the majority of cases, the solicitors alone are interested. The solicitor of the party having the conduct of the judgment is entitled to prosecute all those proceedings which relate to the general enquiries, and the other parties only prosecute those which relate exclusively to themselves, or such as it would be inoon- havLg conduct sistent for the party having the carriage of the order, or judgment, to do. Thus if the plaintiff have the conduct, his solicitor bespeaks and procures to be inserted all advertisements whether for creditors, or for next of kin, or for the sale of property, he prepares the abstract, and answers the requisitions ; and if the purchaser requires a refer- ence of title, he attends upon it. He furnishes, where directed, for the purposes of answering the general enquiries and taking the gene- ral account, copies, abstracts, or extracts of, or from accounts, deeds or other documents, and pedigrees, etc., relating to proceedings of a 88 Chancery Order 212. general character, and not belonging to particular parties to prose- cute. Smith's Pr., 7th ed., 729. May be changed Where the party having the carriage of a judgment, or order, direct- ing a reference, is guilty of delay in carrying it into the Master's ofBce, any other party to the action, or any party having an interest in the reference may assume the carriage of the judgment, or order, which, where necessary, would include the right to draw up the minutes and procure them to be settled, and the order, or judgment, to be passed and entered. No order seems neccessary to entitle him Party inter- *° ^'' *^'^' ^^^ ^^e Re Shaw, 14 Gr. 524, where a special application estedmayasmme-sras made. Where the judgment or order has been drawn up and entered, but has not been carried into the Master's office within the prescribed time, an office-copy of the judgment, or order, may be obtained and carried into the Master's office by any other party in- terested. Persons who are not parties to the action, but who are interested in the reference, e. (jr., creditors, next of kin, heirs, &c., are entitled under Orel. 211, to assume the carriage of the order, or judgment, where the prescribed time has elapsed. See Be Shaw, 14 Gr. 524. Where a judgment or order has been carried into the Master's opice, in the event of delay arising on the part of the party having the carriage of it, the Master may transfer the conduct of the refer- ence to any other person interested. See Ord. 212. Master may 212. Where a party prosecuting a reference, does not of "reference."" proceed before the Master with due diligence, the Master is at liberty, upon the application of any other party interested, either as a party to the suit, or as one who has come in and established his claim before the Master under the order, to commit to him the prosecution of the order ; and from thenceforth neither the party making default nor his solicitor is to be at liberty to attend the Master as the prosecutor of the oi'der. (3rd June, 18.53 ; Ord. 42, s. 10.) This Order is taken from Eng. Ord. 56, of 3rd of April, 1828. See Edward's Chy. Ordern, p. 19. The Master in his discretion may entertain an application to change the conduct of the reference ex parte : Stephenson v. Nicolls, 14 Gr. 144 ; but ordinarily the application should be made on notice : 1 Sm. Pr. 2nd ed., 312, and see Sims v. Ridge, 3 Mer. 458 ; Edwards V. Acland. 5 Mad. 31. Master's order ^"^ appeal lies from the order of the Master changing the subject to appeal reference : Stephenson v. Nicholls, 14 Gr. at pp. 147 149, and in Wyattv. Sadler, 5 Sim. 450; the Gourt on a substantive motion Chancery Orders 213 — 214. 89 changed the reference, after the Master had refused an application for that purpose. But the application must in the first instance be made to the Master : Miller v. McNaughten, 1 Chy. Ch. R. 206. Where there has been great delay in prosecuting a judgment in a Creditor may creditor's suit, a creditor may apply to have the conduct of the cause, though it has become defective by the death of a defendant : Ooolt V. Bolton, 5 Russ. 282, and see Re Shaw, 14 Gr. 524 ; Patterson V. Scott, 4 Gr. 145. A party to whom the conduct of the reference is committed is en- ^^^^V '? ^J"*™ f , . . conduct of refer- titled to inspect and take copies of briefs, and documents in the pos- ence committed, session of the party, or his solicitor, from whom the carriage of the moct papers"' reference has been taken : Bennett v. Baxter, 10 Sim. 417 ; and see Heslop V. Metcalf, 8 Sim. 622. An order taking the conduct of the reference from the plaintiff, Pl''-i"''ff™*y,°P" , , , , . . . ply to amend does not preclude him from applying to amend a clerical error m the order of refer- ■judgment, or order, under Rule S. C. 338 : Whithead v. North, Cr. & Suet taken Ph. 78. Ord. 212 only enables the Master to transfer the conduct from him. of proceedings in his office. Where there is undue delay in prosecuting a reference the Master may close the reference as provided hy Ord. 584. 213- Every reference is to be called on and proceeded Reference to be 11 T • ^1 1 TiiT • proceeded with With at the day and tune fixed, unless the Master m on day fixed, his discretion think.s fit to postpone the same ; and in granting an application to postpone the hearing of a reference, the Master may make such order, as to the ""n^^jg^f"''' costs consequent upon such postponement, as he thinks just. C3rd Junn, 1854 ; Ord. 42, s. 8.) The Master cannot proceed with a, reference in vacation, except Master cannot by consent of all parties: Anderson v. Thorpe, 12 Gr. 542. j^vr^iAiny^c^- report made in vacation, without the consent of all parties, is null and void, as against a party having no notice of the proceedings on which it is founded, and it is not necessary to appeal from it : Fuller V. McLean, 8 P. R. 549. 214. As soon as the Master has entered upon the hear- Keferences to f, /. !•, 1,1 •,i,ji proceed, de die ing 01 a reierence, he is to proceed therewith to the in diem. conclusion without interruption, where that is practi- cable ; and where any reference cannot be concluded in a single day, the Master is to proceed de die in diem, without a fresh warrant, unless he is of opinion that an adjournment other than de die in diem would be 12 90 Chancery Orders 215—216. proper, and conducive to the ends of justice ; and when an adjournment is ordered, the Master is to note in his book the time and reason thereof. (3rd June, 1853 ; Ord. 42, s. 8.) " It is the bounden duty of the Masters to observe these Orders to the letter, wherever it is not absolutely impracticable to foUow them literally," per Spragge, C. ; Falls v. Powell, 20 Gr., at p. 468. References not 215- In no case is any matter to he discontinued or to be adjourned ^ . . , othe*^cas"es arljoumed for the mere purpose of proceeding with any other matter, unless that course becomes necessary. (3rd June, 1853 ; Ord. 42, s. 8.) Warrant to eon- 216. Upon the bringing in of an order, the solicitor unfis'^di'^peS bringing in the same is to take out a warrant (unless with by Master, ^j^^ Master dispenses therewith) appointing a time, which is to be settled by the Master, for the purpose of taking into consideration the matters referred by the order, and is to serve the same upon the parties, or their solicitors, unless the Master dispenses therewith. (3rd June, 1853 : Ord. 42, s. 2.) This Order is adapted from the Enghsh Ord. 51, of 8rd April, 1828. See Kennedy's Ord., p. 17. V\ here judgment Where a judgment is manifestly erroneous, the Master may pro- erroneous, Mas- perly refuse to proceed upon it until it has been corrected : Swainson proceed on it. v. Bartley, 18 C. L. J. 15 ; and see Commercial Bank v. Oraliam, 4 Cir. 419 ; Mitchell v. Strathy, 28 Gr. 80 ; Adamson v. Adamson, lb., at p. 224 ; but the mistake must be very obvious to warrant the Master in refusing to proceed. Warrant to con- -^ warrant to consider a judgment, or order, only requires one sider. day's service ; see Sutherland v. Rogers, 2 Chy. Ch., E. at p. 192 ; other warrants require two clear days' service : lb.; except warrants to settle report, which require four days' service : see post Ord. 247 note. The warrant must be underwritten so as to explain clearly what proceedings are to be taken under it : Denison v. Denison, 3 Chy. Ch.K 349. Defendant cnti- The fact that a decree under the former Chancery practice had tied to notice. \)een prononnced pro confesso against a defendant, did not ipso facto disentitle the defendant to notice of proceedings in the Master's office : see Robinson v. Whitcomb, 20 Gr. 415. In mortgage suits, incumbrancers made parties before the hearing were expressly re- Chancery Order 217. 91 quired to be served with notice, notwithstanding the bill may have been taken pro con/esso against them. See Ord. 446. Ord. Ill now obsolete, dispensed with service of an order to take How ftir defend- a bill pro confesso, and provided that "all further proceedings not appeared in the case may be ex parte as to such defendant, unless the Court '^ entitled to T , . ,, notice in M. 0. orders otherwise. Notwithstanding this Order, it was held impro- per, as a general rule, for a Master to proceed ex parte with a reference, against a, defendant as to whom the bill was taken pro con/esso, and that the Master was bound to exercise his discretion as to requiring, or dispensing with, service on such defendants : Robinson y. Whitcomb, 20 G-r. 415 ; and see Buchanan v. Tiffany, 1 Gr. 98 ; Walsh v. Bourke, lb. 105 ; ffawBns v. Jarvis, lb. 257 ; 1 E. & A. 246 ; McGormick v. McCormich, 6 P. R. 208. But see Perrin V. Davis, 3 Gr. 161. And where the reference was directed by an administration order obtained without a bill being filed, it was held that notice of the proceedings on the reference must be given to the defendant, and that the proceedings taken ex parte under such cir- cumstances were irregular, and the Court refused to act on a report so made : Jackson v. Matthews, 12 Gr. 47. Under the present practice there is no provision for taking the action pro ccmfesso as under the former Chancery practice ; and although judgments may be awarded against a defendant for default of appearance, or for default of defence, there is no provision en- abling the future proceedings to be carried on against him, ex parte. In such cases, therefore, it would seem that the defendant is entitled to notice of proceedings upon a reference. Where, however, the defendant has not appeared, service of notice posting up no- of proceedings under a reference may possibly be effected, by posting '"^^' qo^re if up the document required to be served, in the office whence the writ issued : See Rule S. C. 131. In Toronto, in actions in the Queen's Bench, and Common Pleas, Divisions, it would seem such notices should be posted in the office of the Registrar of the Division where the pleadings are filed. It is not clear, however, whether the provisions of Rule S. 0. 131 extend to proceedings after judgment. 217. Upon the return of the warrant to consider, or warrant to con- ^ eider, proceed- upon the bringing in of the reference where the war- '"6= ™ ^^'i''''' rant is dispensed with, the Master is to fix a time at which to proceed to the hearing and determining of the refererence, and is to regulate in all other respects the manner of proceeding with the reference, and is to give any special directions, he thinks fit, as to : — 92 Chancery Order 218. 1. The parties who are to attend on the several accounts and enquiries ; 2. The time at which, or within which, each pro- ceeding is to be taken ; 3. The mode in which any accounts referred to him are to be taken or vouched ; 4. The evidence to be adduced in support thereof ; 5. The manner in which each of the accounts and enquiries is to be prosecuted ; And such directions may be afterwards varied or added to, as may be found necessary. (3rd June, 1853 ; Ord. 42, s. 2.) Master may i-eg jj, any cause, or matter, for the administration of the estate of a ulate who to "^ ' . appear on credi- deceased person, no party other than the personal representative, arainsustate shall, unless by the leave of the Master, he entitled to appear on the claim of any person not a party to the cause, against the estate of the deceased, in respect of any debt or liability. The Master may direct any other party to the cause to appear, either in addition to, or in the place of, the personal representative, upon such terms as to costs and otherwise as he shall see fit. See Rules S. C. 114, 518. As to mode of taking and verifying accounts generally, see Ord. 227-233, 240 ; and as to taking accounts of creditors' claims against the estate of a deceased person, see Ord. 474^485. Subject to ap- The ruling of the Master is not conclusive, and the Court may ^"^ ' give a party leave to attend proceedings whom the Master has ex- cluded : Davis v. Oombermere, 9 Jur. 76. But it would seem that any objection to the Master's ruling should be brought up by way of appeal, and not as a substantive motion. dLlffy,Tid ap- 218. Where, at any time during the prosecution of ?e°pre/enfdffllr'-° * reference, it appears to the Master, with respect to ent dasses. ^-j^o wholc or any portion of the proceedings, that the interests of the parties can be classified, he may require the parties constituting each or any class, to be repre- sented by the same solicitor ; and where the parties, constituting such class, cannot agree upon the solicitor to represent them, the Master ma^'- nominate such solic- Chancery Okder 219. 93 . itor for the purpose of the proceedings before him ; and on'^^ei'nJ'repfe- where any one of the parties, constituting such class, j™'^jg^{i^;i.g^^j„ insists on being represented by a different solicitor, J^^^^^^^^^^y such party is personally to pay the costs of his own solicitor, of, and relating to, the proceedings before the Master, with respect to which such nomination has been made, and all such further costs as are occasioned to anj' of the parties by his being represented by a different solicitor from the solicitor so nominated. (20th Dec. 1865 ; Ord. 35.) When the Master appoints a solicitor to act for a class, all the Solicitor ap- individuals composing that class are hound by the acts of the solioi- (g^ jq representa tor so appointed, and cannot repudiate them, unless they appoint a ?J°^', '''"'^^ "'^ °' separate solicitor ; Re McGonnell, 3 Chy. Ch. E. 423. A solicitor so appointed is entitled to act for the class, not only in the Master's office, but also in proceedings arising out of, or connected with, the proceedings in the Master's office ; lb. After the appointment of a solicitor to act for a class, the separate costs of any member of that class subsequently incurred will not ordinarily be allowed against the estate under administration : Re j^tna Insurance Company, 17 Gr. 160. The Master should not appoint a separate solicitor for parties who solicitor not to are sufficiently represented by the plaintiff: and where »Hraa /-(j^jg be appointed to J ^ J r ' sr I represent a class the plaintiff represents (see Ord. 58, ante) the class, if the Master already repre- appoiut a separate solicitor, he should state the reason for so doing action, in his report : Gorham v. Gorham, 17 Gr. 386. 219. To enable the Master to exercise all or any of no statement ' in pleading, or the powers conferred upon him by, or to take the evidence at trial ' . . ^ I • necessary, to en- accounts and make the enquiries referred to m, the title Master to ■* exercise powers following Orders, it shall not be necessary that any of «io*e™ii ty the matters therein mentioned, shall have been stated in the pleadings, or that evidence thereof shall have been given before the order of reference, or that the order shall contain any specific direction in respect thereof (3rd June, 1853 ; Ord 42, s. 13.) This and the following Order very materially altered the practice jurisdiction of previously in force, and extend the jurisdiction, and discretion, of £*" o'^'^oiq'^w'?) the Masters in taking accounts, very far beyond that exercised by 94 Chancery Oiider 220. the Chief Clerks, or even a Judge in Chambers, under the English practice : ScuUhorpe v. Burn, 12 Gr. 427. Former rule re- xhe former rule, as laid down by Lord Eldon, was that the plain- quireA case to be ' -^ , , i ^ .ic i i 4. made in plead- tiflf must aver in his bill, and prove, at least one act of wiltul neglect, ings, &c. ^^ default, in order to obtain a decree directing an enquiry as to wilful neglect, or default : Seton 477 ; SleigM v. Lawson, 3 K. & J. 292. In the same way, according to the English practice, a founda- tion is required to be laid in the pleadings for, and the judgment must specially direct, the taking of an account with rests : Seton 474 ; or the setting of an occupation rent : Ti-aloclc v. Robey, 15 Sim. 265. This Order distinctly abrogates those rules of practice, and en- ables the Master to take an account with rests, and to charge the accounting party for rents, and profits, which might have been re- ceived, but for wilful neglect and default, and to set an occupation rent, in any case referred to him ; although there be nothing in the pleadings : McLennan v. Heward, 9 Gr. at pp. 178 and 187 ; and though no evidence may have been given as to any such matters at the trial. It was formerly held that under a common administration order obtained on motion without bill, by any person but the personal representative himself, there could be no enquiry as to wilf u Ineglect, or default : Harrison v. McGlashan, 7 Or. 532. But where the order was obtained by the personal representative himself, such an enquiry might be made : Ledgerwood v. Ledgerwood, 7 Gr. 584. Enquiry as to The case of Carpenter v. Wood, 10 Gr. 354, though not referring lau'r&c^oaiT *° Harrison v. McOlashan, is said in effect to have over-ruled it ; now be made and the practice was stated by Boyd, C. , to be now settled that direction. under Ord. 219, 220, the enquiry as to wilful neglect and default, may be made in all oases under the common administration order : Ee Allan, Pocock v. Allan, 9 P. R. 277. If the Master refuse to exercise the power to take the accounts in the manner mentioned in Ord. 220, his ruling would be appealable ; but it would seem to be more proper to bring the question up on further directions. See Sievewright r. Leys, 1 O. K. 375. foTake acro^'te ^20. Under an order of reference, the Master shall have power : With rests. ^ To take the accounts wlth rests or otherwise; To enquire as to 2. To take account of rents and profits received default."*^'" or which, but for wilful neglect or default might have been received ; To set oecupa- 3- To set occupation rent ; tioD rent. Chancery Order 220. 95 4. To take into account necessary repairs, and last- '''° »■"'"' ?' '"- ing improvements, and costs and other ex- penses properly incurred otherwise, or claimed to be so ; 5. To make all iust allowances ; to make just ** allowances. 6. To report special circumstances ; ckcumstanms"' 7. And generally, in taking the accounts, to ADd to enquire I . -, ., , , as to all matters inquire, adjudge, and report as to all matters relating lo ac- relating thereto, as fully as if the same had been specially referred. (3rd June, 1853 ; Ord. 42, s. 13.) Taking the account with, rests :— Taking an account with "rests "means, either that the accounting Taking account party is charged with compound interest on the amount found due JJ'jg^ '^^ s, w a from him ; or that the surphis income remaining after satisfying the interest due to him, is applied at certain periods in reduction of the principal. The amalgamation of principal and interest, or the appli- cation of income to pay off the principal, may take place yearly, half- yearly ; or at other times more or less frequently, and these periods are termed "rests.'' In Robinson v. Cumming, 2 Atk. 410, Lord Hardwicke said rests were only ordered in accounts of realty, and not of personalty, but this is no longer the rule. When the Master declines to take an account with rests, if it is intended to appeal from his decision, he should be required to report the facts, so as to enable the Court to judge of the propriety of his decision : Sieve- wriglit V. Leys : 1. 0. R. 375 ; but it has been said the preferable method is to bring the question up on further directions : lb. Rests, as Against Executoes, and Tkustees. — In taking ae- Keats— when al counts against an executor, or trustee, he is to be charged g^'^^f^g'!*'^" " with what he ought to have made, with what he actually did trustees. make, or with what he must be presumed to have made, " Esten, V. C. , Smith V. Roe, 11 Gr. 312. The principle on which the Court proceeds in charging an executor, or trustee, with interest, ia that of restoring to the cestui que trust his own, and of fairly compensating him for loss directly attributable to the neglect, or breach of duty, by the trustee ; and on the other hand, that of withdrawing from the trustee any advantage he has appropriated by abusing his posi- tion : per Moss, 0. J. ; Inglis v. Beatty, 2 App. R. , at p. 490. It is not that of punishment to the executor, or trustee : Attorney Gene- ral V. Alford, 4 D. M. & a. 843 ; Bttrdick v. Garrick, 5 L. R. Cby. 233 , Vyse v. Foster, 8 L. R. Chy. 309 ; 7 H. L. 318. Compound 96 Chancery Order 220. Bests. interest may in some cases be a convenient mode of making this com- pensation, but in other oases it may be oppressive, and sound more as punishment than compensation, and therefore in such cases it ought not to be charged. See Fielder v. O'Hara, 14 Gr. 223. English Rule In England the amount of interest with which an executor, or trus- ar'teustergailty *®® '^ charged, depends on the circumstances : (1) . When he is guilty of mere neglect, of mere neglect, and gets no personal benefit, he is charged with simple interest at 4 per cent.: Forbes v. Boss, 2 Cox 116 ; Rocke v. Harte, 11 Ves. 58 ; Robinson v. Robinson, 1 D. M. & G. 247 ; Tebbs v. Carpenter, 1 Mad. 290; Mousleyv. Carr, 4Beav. 49; Attoi-ney General V. Alford, 4 D. M. AG. 843; or with the interest he should have received with half-yearly rests : Oilroyv. Stephen, 46 L. T. N. S. 761. poBitirf breach ^"^ ' ^^'^''^ ^^ i^ guilty of a positive breach of trust, or has employed of truet— or has trust money for his own benefit, he is charged with 5 per cent. ; or, at funds iu his own ^^^ option of the beneficiary, with the profit actually made : Jones v. business. Foxall, 15 Beav. 388. The neglect to comply with a specific direc- tion for investment, has been held to be such a positive breach of trust : Crackelt v. Bethune, 1 J. & W. 586 ; Berwick v. Hurray, 7 D. M. & G. 519 ; Mosley v. Ward, 11 Ves. 581 ; and when the trust directed accumulation, the accounts have been taken with rests : Raphael v. Boehm, 11 Ves. 92 ; Knott v. Gotlee, 16 Beav. 77 ; Jones v. Fox- all, 15 Beav. 388 ; and where a breach of trust, and the employ- ment of the trust fund for his own benefit, in trade, or speculation, concur, whether there be any direction for accumulation or invest- ment or not, the trustee is charged with 5 per cent., sometimes with : Burdick v. Garrick, 5 L. E. Chy. 233 ; and sometimes, without, rests, or, in the option of the beneficiary, with the profits actually realised from the fund ; Flocton v. Bunning, 8 L. K. Chy. 323 ; Saltmarsh v. Barrett, 31 Beav. 349 ; Docker v. Somes, 2 My. & K. 655 ; Heath- cote v. Huhne, 1 J. & W. 122 : Sutton v. Shaipe, 1 Russ. 146 ; Rob- inson V. Robinson, 1 D. M. & G. 247. In Walker v. Woodward, 1 Euss. 107, annual rests were ordered, but this was said to have been obtained by surprise, see Attorney General v. Solly, 2 Sim. 518. In Jones V. Foxall, 15 Beav. 388 ; Williams v. Powell, 15 Beav. 461 - Heiyhington v. Grajit, 1 'Ph. 600 ; rests were ordered. In Docker v. Somes, 2 My. & K. 655 ; Palmer v. Mitchell, 2 My. & K. 672 ; 3Iac- donald v. Richardson, 1 Giif. 81 ; accounts of profits arising from employment of trust funds in trade were ordered ; and see Crawshay v. Collins, 15 Ves, 218 ; IJ. & W. 267 ; 2 Russ. 325 ; Willett v. Blan- ford, 1 Ha. 253 ; Wedderburn v. Wedderburn, 22 Beav. 84. The pay- ing in money to the general account of a firm of solicitors, of which the trustee was a partner, was held not to be a using of the money in his own business, hO as to render him Hable for compound interest : Burdick v. Garrick, 5 L. R. Chy. 233. When an infant is interested, an enquiry will be directed whether it is for his advan- Chancery Order 220. 97 tage to take interest, or profits : Burden v. Burden, cited in Heath- Rests. cote V. Holme, 1 J. & W. 134-5. No special direction seems necessary to authorize the Master making that enquiry in Ontario. In this Province prior to the repeal of the usury laws, the rule Rule in Ontario was to charge interest at the rate o£ 6 per cent., and where accord- j' '.gf^"'" °' '"' ing to the English cases a higher rate of interest than 4 per cent. would be charged, to take the account with half-yearly rests, see Landman v. Crooks, 4 Gr. 35.3 ; Small v. Eccles, 12 Gr., at p. 40. Since the abolition of the usury laws, an accounting party chargeable according to the English cases with more than 4 per cent., may now be charged, either with a higher rate of interest than 6 per cent., ac- cording to the value of money, as was done in ; Wir/htnian v. Helli- well, 13 Gr. 330 (where an executor was charged with 8 per cent. simple interest) ; or it would seem he may be charged with compound interest at 6 per cent. : Wiard v. Gable, 8 Gr. 458 ; Erskine v. Camp- bell, 1 Gr. 570 ; or even at a higher rate if the money have been used in trade : Witjlitman v. Helimell, 13 Gr. at p. 343 : Small v. Eccles, 12 Gr. 40, or, at the option of the cestui que trust, with the actual profits realised. But where the trustee, or executor, has neglected to pay over sums interest on sums in his hands to the parties entitled, he is chargeable with interest on neglected to be such sums, no matter what the amount, from the time the payment ought to have been made : McLennan v. Heward, 9 Gr. at p. 190. Where the executor, or trustee, retains trust money in his hands, where retained under a bona fide, though mistaken, belief that it is his own, he mav u°,?*J bona fid' * * J belief of owner- be exonerated altogether from payment of interest : Bruere v. Pem- ship. berton, 12 Ves. 386 ; Davenport v. Stafford, 14 Beav. 319 ; or he may be ordered to pay simple interest : Inglis v. Beatty, 2 App. R. 453 ; and where there has been great delay on the part of the cestui que ''eglect of c. q. t. trmt in making claim to the trust fund ; Browne v. Cross, 14 Beav. ment. 105 , provided such delay can be said to amount to acquiescence : The Neglect of trus- Life Assurance Co. v. Siddal, 3 D. G. F. & J. 72 : Blain v. Ten-!/- '"^'°'"^'=''- berry, 12 Gr. 221 : the trustee or executor may be relieved from pay- ing interest thereon. A trust to invest in "public securities," is violated by investing in municipal debentures : Ewart v. Gordon, 13 Gr. 40 ; and a direction to carry on a business wOl not justify an executor in embarking more capital in it : Smith v. Smith, 13 Gr. 81. In cases of simple neglect to invest, the Master is not justified in No interest on charging interest against the trustee until the balance amounts to a ^"™^ charged to sum sufficient for an ordinary investment. $400 was considered a he has not ac- reasonable sum for this purpose : McLennan v. Heward, 9 Gr. 178. ""' ^ ''"^^"''■' When trustees, or executors, lend money to themselves at a lower Executors lend- rate than could have been obtained by investing it according to the '"^ money to themselves, trust, they will be chargeable with the higher rate, but not with 13 98 . Chancery Order 220. Rests. rests : Smith v. Roe, 11 Gr. 311, at p. 315 ; and see Forbes v. Ross, 2 Cox 116. Or not investing But when a trustee is authorized to invest in either of two specified as reeled. j^odes, and bj' mistahe invests in neither, the measure of his liabi- lity is the loss arising from his not having invested in the less bene- ficial of the authorized modes. Thus when a trustee was authorized to invest in Government securities, or mortgages, and he invested in Bank stocks, which proved a loss ; he was charged with what would have been obtained had the investment been made in Govern- ment securities, although a larger rate of interest could have been obtained on mortgages : Paterson v. LaUfy, 18 Gr. 13 ; and see • Cameron v. Bethime, 15 Gr. 486. Nor is an executor, or trustee, liable for neglect in not calling in investments made by the testator, in order to invest at a higher rate of interest, although authorized so to do : Smith v. Roe, 11 Gr. 311. An administratrix, who allowed the moneys of the estate in her hands to be used by her husband, was charged with simple interest at six per cent. ; it not being shown that the money had been used in trade, or that any larger sum had been realised : Fielder v. O'Hara, 14 Gr. 223. "Where an executor, or trustee, has properly deposited the trust fund for safe keeping, or kept it in his hands unemployed, he may be relieved from payment of interest, except such as he has actually received ; but if he have not kept it apart from his own moneys, or have used it, he will be liable for interest on it : Beaton v. Boomer, 2 Chy. Ch. R. 89. Interest when it ^,j executor, or trustee, charged with principal sums which have runs. ' » & r r never come to his hands, but which have been lost by his neglect, is not always chargeable with interest thereon as well : Vanston v. Thompson, 10 Gr. 542 ; Re Shaw, 15 Gr. 626 ; unless his neglect or default amounts to acquiescence in the spoliation of the estate : Sovereign v. Sovereign, 15 Gr. 559 ; Cudneyv. Cudney, 21 Gr. 153. The commencement of a suit does not stop interest running: McLen- nan V. He-ward, 9 Gr. 178 : McMillan v. McMillan, 21 Gr. 369. But see Blogg v. Johnston, 2 L. E. Chy. 225. As against executors, interest should not ordinarily be charged, until after the lapse of a year from the testator's death. When a trustee or executor has made advances to the trust estate, he may be allowed simple interest on the balances of principal due to him from year to year, but not compound interest : Finch v. Pescott, 17 L. R. Eq. 554. Principal and PRINCIPAL AND AoENT. — An agent who had used moneys of his principal, with his consent, was only charged simple interest : McLennan v. Heward, 9 Gr. 178 ; and where the state of accounts Chanceey Order 220. 99 could not be ascertained until they had been taken by the Coui-t, Rests. interest on the balance was charged only from the date of the Mas- ter's certificate : 2\irner v. Biirhinshaw, 2 L. E. Chy. 488 ; and see JBlocjg V. Johnson, lb. 225. Where the principal was found indebted to the agent, interest on the balance was allowed from the filing of the declaration in the action by the agent to recover the amount : Ridley v. Sexton, 19 Gr. 146. Legatees — Interest on legacies runs from the end of a year from LcRatees. the death of the testator, in the absence of any express direction in the will to the contrary : see Smith v. Seaton, 17 Gr. 397 ; but this rule does not apply to sums appointed by will, under a power. As to such sums, interest runs from the death of the testator ; Deedes v. Graham, 20 Gr. 258. But no interest can be usually recovered on arrears of annuities : Gohlsmith v. Goldsmith, 17 Gr. 213. When a legacy is vested in trustees upon an express trust, more than six years arrears of interest are recoverable : Lorinrj v. Lorini/, 12 Gr. 374. A legatee receiving more than his share may be ordered to refund, with interest : Davidson v. Boomer, 17 Gr. 509. Policies or Insurance. — Interest does not begin to run, until the Policies of insur- party claiming is in a position to give a full discharge : Toronto Savings Bank v. Canada Life, 14 Gr. 509. Paetnership Accounts. — In the absence of any agreement to Partnership ac- the contrary, advances of capital made by a partner do not bear """^ '' interest : Hill v. King, 9 Jur. N. S. 527 ; 3 D. J. & S. 418 ; Cooke V. Benhow, 3 D. G. J. & S. 1 ; Stevens y. Cook, 5 Jur. N. S,, 1415. But see Millar v. Craig, 6 Beav. 433. This applies not only to the original capital put in, but also to subsequent advances made by a partner on capital account : Jardine v. Hope, 19 Gr. 76. Neither is interest chargeable on capital agreed to be advanced by No interest al- a partner, but not advanced by him . misoyiy. McOarlhy,\ZG.'L. i. °^' N. S. 303 ; Rishton v. Grissell, 5 L. R. Eq. 326. As to advances in the way of temporary loans there seems to be As to tempora./ no settled rule. In Cooke v. Benbow, supra. Turner, L. J., thought'"™'"^"" ''^■ interest should not be allowed : and see J)e Hertel v. Supple, 14 Gr. 421. But in Ex parte Chippendale, 4 D. M. & G. 36, Knight Bruce, L. J., was of the contrary opinion ; and see Re German Mining Co., . 17 Jur. 745, 747 ; Pim v. Harris, 10 L. K. Ir. Eq. 442. Interest is chargeable on sums in the hands of a partner, and not jntefg^j. allowed accounted tor: Hutcheson v. Smith, 5 Ir. Eq. 117; or improperly <>'> ™™s in the ^ . tiands of a part- applied : Eoans v, Coventry, 8 D. M. & G. 835. But a partner m ner. or not ac- possession of partnership property is not obliged to account on the '^'"'° °^' 100 Chancery Obder 220. Bests. footing of wilful default : Rowe v. Wood, 2 J. & W. 556 ; Davidson V. Thirkell, 3 Gr. 330, at pp. 347-8. No interest on Interest is not chargeable on withdrawal of capital, unless fraudu- CADitfil with- drawn, or proflls. lent or improper : Cookf y. Benhoio, supra ; Meymott v. Meymott, 31 Beav. 445 ; nor on undrawn profits : Dinham v. Bradford, 5. L. E. Chy. 519. Interest payable When capital carries interest during the continuance of a partner- par°rMrsiiip™°^ ^^^^P' i* does not do so after a dissolution .• Watney v. Wells, 2 L. E. stopped by disso- Chy. 250 ; Rhodes v. Rhodes, John 653 ; although the business is lution. . , ' o carried on for the purposes of a s^ale : Watney v. Wells, supra ; unless where the capital is treated as a debt : Wood v. Scoles, 1 L. E. Chy. 369 ; BarAeld \. Loughborough, 8 L. E. Chy. 1 ; or in the case of a sleeping partner : Parsons v. Hayward, 4 D. F. & J. 474. Interest from After the Master's report, simple interest at six per cent, runs on date of report, jj^g amount found due : Bonville v. Bonville, 35 Beav. 129 : Brewer V. Yor/ce, 46 L. T. N. S. 289. Losses how Losses resulting from investments of partnership moneys, are to be borne by the partners, in the same proportions they are entitled to share in the profits of the partnership business : Storm v. Cumber- land, 18 Gr. 245. Mortgagee in MORTGAGEES IN POSSESSION. — When a mortgagee in possession, possession, when j^ j j^j^ ^ character, received rents and profits, or is chargeable rests chargeable ' r » o against. with an occupation rent, in excess of the interest due, the Master may strike a balance periodically, and apply the surplus to the reduc- tion of the principal ; this is called taking the account with rests : Thorneycroft v. Crodcett, 2 H. L. C. 239 ; Wilson v. Clmr, 3 Beav. 136 ; Schofiddv. Ingham, 1 C. P. Co. 477 ; Thompson v. Hudson, 10 L. R. Eq. 407 ; and see Fisher on Mortgages, 957, et seq. And where a mortagee after having been paid in full has continued in possession, he may be charged with compound interest on his receipts : Wilson V. Metcalfe, 1 Euss. 530 ; Lloyd v. Jones, 12 Sim. 490. In Caldwell v. Hall, 9 Gr. 110, VanKoughnet, C, stated it to be the settled practice of the Court, " that when a mortgagee enters, his money being in arrear, he is not liable to account for the rents received by, or chargeable against him, with rests, until he is paid oflf in full." And see Wilson v. Cluer, 3 Beav. 136 ; Wilson r. Metcalfe, 1 Euss. 530 ; Paul v. Johnson, 12 Gr. at p. 482; Davis v. May, 19 Ves. 384 ; Finch v. Brown, 3 Beav. 70 ; Latter v. Dashwood 6 Sim. 462. But if he enter when nothing is in arrear, it seems the account may be taken with rests from the beginning of the posses- sion ; A'elson v. Booth, 3 D. & J. 119. But the mere fact of nothing being due wheu possession is taken is not conclusive as to the right to have the account taken with rests ; every attendant circumstance must be regarded : Horlock v. Chancery Order 220. lOX Smith, 1 Coll. 287. Thus a mortgagee who took possession of lease; Keats. hol(}s to prevent a forfeiture is not liable so to account, though no- Mortgagee \ihp.a thing was iu arrear when he entered : Patch v. Wild, 30 Beav. 99 ;^jtii ^csts. and see Gordon v. Eahins, 16 Gr. 363. If a mortgagee holds bills, or notes, for arrears when he enters, he is nevertheless not liable to account with rests, if they are dis- honoured : Dohion v. Land, 4 D. & S. 575. Rests may be made when a mortgagee in possession sets up an un- founded claim to the equity of redemption, or resists the mortgagor's right to redeem ; or when overpaid, has denied that his mortgage was satisfied : Incorporated Society v. Richards, 2 Dr. & W. 258 ; Crippen V, Ogilvie, 15 Gr. 569 ; Montgomery v. Calland, 14 Sim. 79. When the mortgagee is in occupation and is charged with an occu- pation rent more than suflScient to pay the interest, the account may be taken with rests, if the mortgage debt was not in arrear when he entered, subject to the qualifications above mentioned, from the time he entered, or if then in arrear, then from the time he was paid in full : Wlhon v. Metcatje, 1 Russ. 530 ; Binnington v. Harwood, T. & R. 477 ; Coldwell v. Hall, 9 Gr. 110 ; where the account is taken with rests, it would seem that the proper time for making the rests, is at the time of each payment of rent, whenever the payment ex- ceeds the interest then in arrear. The mere fact that a mortgagee resides with the owner of the equity of redemption on the mortgaged property, does not render him liable to account as a mortgagee in actual occupation : Paid v. John- son, 12 Gr. 474. A person entering as a bona fide purchaser from a mortgagee is not liable to account as a mo rtgagee in possession , in the event of his purchase being held invalid : Parkinson v. Hanbury, 2 L. R. H. L. 1 ; CarroU v. Robertson, 15 Gr. 173. But a mortgagee who en- tered claiming to have purchased the equity of redemption, but who was held to be still redeemable, was ordered to account with rests : A itchison v. Coombs, 6 Gr. 643 ; this point is not noticed in the re- port, but see the decree D. B. 4, fo. 576 ; but see Parkinson v. Han- bury, supra. Prior to Ord. 220, the account could not be taken against a mort- so special diiec- gagee with rests, without an express direction in the decree to*^^° nowueces- that effect : Webber v. Hunt, 1 Madd. 13. Under Ord. 219, 220, no express direction iu the judgment is necessary ; but the Master of course cannot properly take the account with rests in cases where it would not, under the former practice, have been ordered by the Court. Statute of Limitations. — A mortgagee in occupation, is liable to statute of Limi- account for more than six years' occupation rent prior to the com- tations. 102 Chancery Order 220. Kests. statute of Limi' tatioushow far a bar to recov- ery of iotereet. Wilful neelect nd default; English rule regarding. mencement of the action, the Statute of Limitations is no bar : Cold- well V. Hall, 9 Gr. 110 ; S. C. 7 IT. C. L. J. 42 ; 8 U. 0. L. J. 93. As against the person of the debtor, arrears of interest, or rent, payable under a covenant, accruing, or acknowledged in -vrriting, or by part payment, to be due, at any time within twenty years of the commencement of the action, have been held re- coverable, even though such interest, or rent, be charged upon, or payable out of, land . R. S. 0. u. 61, ss. 1 & 6 ; Allan, v. McTav- ish, 2 App. R. 278 ; but see mnlra, Sutton v. Sutton, 48 L. T. N. S. 95 ; Fearnslde v. Flint, lb, 154; but as against land, no arrears of rent, or interest, in respect of any sum of money charged upon, or payable out of any land, or rent, or in respect of any legacy charged upon land, can be recovered but within six years after the same shall have respectively become due, or next after any acknowledgment of the same, in writing has been given to the person entitled thereto or his agent signed by the person by whom the same was payable, or his agent : £. S. 0. u. 108, o. 17. But where any prior mortgagee, or other encumbrancer, has been in possession of any land, or in the re- ceipt of the profits thereof, within one year next before an action is brought by any person entitled to a, subsequent mortgage, or other encumbrance, on the same land, the person entitled to the subsequent mortgage, or encumbrance, may recover in such action the arrears of interest which have become due during the whole time that such prior mortgagee, or encumbrancer, was in possession, or receipt, as aforesaid, although such time may have exceeded the time of six years. See S. S. U. u. 108, s. 18. When the Statute of Limitations is intended to be relied on as a bar to the whole claim, it should be specially pleaded : Hule S. C. 147 ; but it would seem that it may be set up in the Master's office as a bar to part of the claim, without having been pleaded : Wright v. Moryan, 1 App. R. 613 ; Cattanach v. Urquhart, 6 Pr. R. 28. The Statute of Limitations may be pleaded as a bar to the taking of partnership accounts : Noyes v. Orawley, 10 Ch. D. 31 ; and see Storm V. Cmnberland, 18 Gr. 245 ; Carroll v. Eccles, 17 Gr. 529 ; this latter decision, however, would seem to be qualified by Wrigltt v. Morgan, supra, but see B%ile S. C. 147. Wilful Neglect, and Default.— Under the present English practice, the accounts cannot be taken on the footing of wilful de- fault without a special direction in the judgment, or order, of refer- ence ; and where wilful default is not pleaded, no order can be made on the footing of wilful default, either at the trial, or any subsequent time ; but where wilful default has been alleged and a case made for it in the pleadings, an account may be directed on the footing of wilful default, either at the hearing or trial of the action, or at any subsequent stage : ReSynwms, Luke v. Tonkin, 46 L. T. N. S. 684; Bar- Chancery Okder 220. 103 ber V. Machrell, 12 Ch. D. 534 ; 41 L. T. N. S. 23, 201 ; where affidavits wuful neglect raising a case of fraud, were treated as pleadings, and see Job v. Job, ^'"* default. 6 Ch. D. 562 ; Mayer v. Murray, 8 Ch. D. 424 ; He Bowen, Bennett y. Bowen, 47 L. T. N. S. 114. In Ontario no statement in the pleadings is necessary, in order to Ontario rule, authorize the Master to take accounts, in any proper case, on the foot- ing of wilful default. See Ord. 219. Mortgagees in possession, were always liable, as of course, to adcount on the footing of wilful neglect and default, and the effect of Ord. 219, 220, is to place trustees, executors, and others, liable for wilful default, upon the same footing in this respect as mortgagees in possession. Sec- tion 2 of Ord. 220, applies in terms only to accounts of realty, but it has been held that under Sec. 7, the Master may enquire as to wilful neglect and default, in all cases referred to hira without any special direction so to do : Carpenter v. Wood, 10 Gr. 354. Wherever wilful neglect and default is charged against an accounting party, the Master is to determine whether or not he is liable to account on that footing, and if so, the amount that is due ; he should not report the facts as " special circumstances : "' Walmsleyv. Bull, 2 Chy. Ch. R. 344, and in his report, he should distinguish between sums actually received, and those charged by reason of wilful default, in order to enable the Court to deal with the question of costs : Moodie v. Leslie, 12 Gr. 537. Executors, and Trustees. — Formerly it was necessary to aver in Executors and the pleadings, and prove at the hearing, at least one act of wilful de- jjabie for wilful fault, to entitle the plaintiff to a decree to enquire as to wilful neglect "^s'''=* """^ ^^' and default: SleUjht v. Lawson, 3 K. & J. 292 : this is no longer neces- sary, and the Master may now make the enquiry, though no case of wilful neglect or default be averred in the pleadings, or proved at the trial : Carpenter v. Wood, 10 Gr. 354, and see Ord. 219. Formei^ly it was thought that the enquiry could not be made iinder the com- mon administration order obtained in Chambers ; Harrison v. McGlashan, 7 Gr. 531 ; except when obtained by the personal repre- sentative himself : Ledgerwood v. Ledr/erwood, lb. , 584 ; but the practice is now settled that the enquiry may be made in every case per Boyd, C, Ee Allan, Pococh v. Allan, 9 P. E. 277. An executor improperly delaying to sell lands which, by the will are saleable for the payment of debts, in order to benefit himself, is liable to account for rents and profits : Ernes v. Ernes, 1 1 Gr. 325 ; and executors without authority intermeddling with, and assuming the management of, the realty, are liable to account as; if duly em- powered to act as trustees : Chisholm v. Barnard, 10 Gr. 479 ; but in such a case they are not entitled to any compensation for so doing : /)c«7(7 V. Darig, 25 Gr. 542. 104 Chancery Order 220. ^'J^U^?®^'?'^ But it is the duty of the Court in all cases where executors, and default. •' Executors and °^ trustees, are concerned, to administer equity in such a manner, trustees, entitled that honest and respectable men shall not be deferred from accept- doutt. ing the office, and ii there is a doubt, where men have acted honestly and bona fide in discharge of their duty, although they have made mistakes, the doubt should be determined in favour of the executor, or trustee : Se Owens, Jones Owens, 47 L. T. N. S. 62 , Speuild v. Gaunt, 48 L. T. N. S. 279. When a testator expressed the fullest confidence in one of the trustees named in his will and directed the other trustees to be guided by his views at to sale, disposal, and reinvestment, of his American securities, and declared that his trustees should not be responsible for any loss occasioned thereby. It was held that the co-trustees were not answerable to legatees for loss occasioned by unauthorized investments of their moneys, made by the trustee : Bur- ritt V. Burritt, 29 Gr. 321. But as regards creditors it seems they might not be discharged : Doyle v. Blake, 2 Sch. & L. 239. While the Court will not require from executors, and trustees, any greater care than a prudent man ordinarily bestows on the manage- ment of his own property, yet it will require them to give full ex- planations of all their dealings, and of the causes why outstanding assets were not collected, or property of the estate has disappeared, and a trustee, or executor, who cannot account for the one or the other, will be chargeable with them : Chisholm v. Barnard, 10 Gr. 481 ; a trustee is not liable for losses arising through the default of agents to whom he may have properly confided the management of the trust : Speight v. Gaunt, 48 L. T. N. S. 279. Executors have a fair discretion in taking or delaying legal proceedings against a debtor, and a delay in suing, even though causing a loss of the debt, is not necessarily such negligence as subjects them to any liabilitj- : Be Owens, Jones v. Owens, 47 L. T. N. S. 61. In the absence of special cir- cumstances, an executor is only liable for his own individual receipts, and not for those of his co-executor, but he is liable for the receipts of any agent jointly employed by himself and his co-executor : Har- rison v. Patterson, 11 Gr. 105. Losses on invest- There is no fixed rule as to the relative proportion which loans made by trustees ought to bear to the value of the property. As a general rule more than two-thirds the value should not be advanced ; but a trustee who, in the honest exercise of his discretion, lends a little more than two-thirds, is not liable in the event of the security proving insufficient : Re Godfrey, Godfrey v. Faulkner, 48 L. T. N. S. 853. :Mortga<;ees in MoRTSAGEES. — A mortgagee in possession is bound to account, as ftr wilfuTieglec't "^ '^ovLvs^, for what he has, or but for his wilful default might, or and default. ought to have, received : Chaplin v. Young, 33 Beav. 3.30 ; Parkin- Chancery Order 220. 105 son V. HanhuiTj, 2 L. R. H. L. I ; Hughes v. Williams, 12 Ves. 493 ; Neglect and Kensington v.Bouverie, 7 D. M. & G. 134; Quarrel v. Beckford,\^^^^'^'''- Madd. 274. But he is not liable for more than he has actually re- Mortiiagee in jiob- oeived, unless it is clearly proved that he knew a greater rent might , and could have been obtained and that he refused or neglected to obtain it : Merriam v. Oronh, 21 Gr. 60 : Coldwell v. Hall, 9 Gr. 110, 114; ihtcalfi! w. Campion, 1 Moll. 238; HMjhesv. Williams, 12 Ves. 493 ; Brandon v. Brandon, 10 W. E. 287 ; CocJcs v. Cray, 1 Gifif. 77. A mortgagee not in possession, is not chargeable with rent which a Not chargeable tenant of the mortgagor had promised to pay him, but did not : mi'se/to be'pai'd Waddellv. McColl, 14 Gr. 211. but not received. Where a mortgagee takes possession at a rent agreed on between How far agree- him and the morgagor, he is only liable to account to the mortgagor mortgagee and on the footing of the agreement, but such agreement is not binding ™°'^on*f°^5e'."''' on any subsequent incumbrancer, and as to him the Master may charge quent incum- the mortgagee with a fair occupation rent, though it exceed the amount agreed to by the mortgagor : Court v. Holland, 29 Gr 19, and see Gllmoar V. ,Jloe, 21 Gr. 284; Ch-egg v. Arrotl, LI. & Goo. temip. Sugd. 246. Vendor and Purchaser. — After the time fixed for completion of Vendor after the contract, the vendor is liable for rents and profits, but usually completing is only for those actually received : Howell v. Hoioell, 2 My. & Or. ''^We to pur- ** *' ^ J cha.'^er for rents 486, unless he allow the rent to fall in arrear, when he will be and \ roflts. held accountable for the arrears . A eland v. Oaisford, 2 Madd. 28 ; Wilson V. Clapham, 1 J. & W. 36 ; formerly a special case must have been made at the hearing to entitle a purchaser to have the account taken on the footing of wilful default : Slierwin v. Shakspear, 5 D. M. & G. 517, 532 ; ■Phillips v. Sylvester, 8 L. R. Ghy. 173. But this is no longer necessary in Ontario ; see ante, p. 9. Where no time was named in the contract for deliveryof possession, the purchaser was held entitled to the rents from the date of the contract : Brady v. Keenan, 6 P. E. 262, and see Dudley v. Berczy, 2 Ch. C!h. R. 364, as to liability of vendor in possession. No more than six years' arrears of interest on purchase money can interest on pur- be recovered from a purchaser as a charge on the land, whethejr ehase money, he has been in possession or not : Airey v. Mitchell, 21 Gr. 512 ; Ounn V. Trust d: L. Co., before Boyd, 0., 19th Jan., 1882 ; but in some cases where more than six years' arrears, was recoverable against the estate of a deceased person the excess beyond six years was allowed to avoid circuity of action : Carroll v. Robertson, 15 Gr, 173 ; Taylor v. Hargrave, 19 Gr. 271 ; Howeren v. Bradburn, 22 Gr. 96 ; IVeaver V. Vandusen, 11 Gr. 481. Principal and Agent. — A BailiflF at common law was liable to Bailiff liable for account for what he might have made of the lands, but for his wUful "^^^"^ 14 106 Chancery Order 220. Neglect and default : Seton 779 ; Wheeler v. Home, Willea 208- Co. Lit. 172 a ; default. g^jjj^ g^jj agent acting under a power of attorney is liable so to account, though the power be defective Bradburne v. Shanly, 7 Gr. 569. But a solicitor who paid off a mortgage for a client, and entered into the receipt of rents, was held not to be liable on the footing of wilful de- fault, his possession being that of his^ client : Ward v. Carttar, 1 L. R. Eq. 29. I'ersons not Persons not Liable to Account for Wilful Default : — liable to account ^ . ..,,. . j.i-i,i4. for wilful neg- Paktnees in possession of partnership property are not liaDie to lect and default. ^^^^^^^^ jq t^e footing of wilful default : Davidson v. Thirhdl, 3 Gr. 330, at p. 3i8 : Eowe v. Wood, 2 J. & W. .'556 ; but one partner may have a demand against another for compensation for negligence, or fraud : Bury v. Allen, 1 Coll. 589 ; Doiipe v. Stewart, 13 Gr. 637. TENANT.S IN Common who have received more than their share, though liable to account for the excess : Larimer v. Lorimer, 5 Madd. 363 ; Turner v. Morgan, 8 Ves. 145 ; are not answerable for wilful default : Wheeler v. Home, Willes, 208. Purchaser for PURCHASER ¥0R VALUE evicted by person having a better title, and value, of which he is fixed with constructive notice, is not liable to Partners. Tenants in com- mon. account on the footing of wilful default : Cr. 478. Howell V. Howell, 2 My. & Persons whp ob- tain possession by fraud. Persons who have obtained possession" by Fraud, are not liable to account on the footing of wilful default : Murray v. Palmer, 2 Sch. & L. 474 ; Trevelyan v. Charter, 9 Beav. 140 ; 4 L. J. N. S. 209 ; 11 CI. & F. 74. Occupation yent, Occupation Bent — A person liable to account for rents and pro- when chargeable, fits may generally, if he have been himself in actual occupation of the property in question, be charged with a fair rent for the time he has so occupied, — which account of rent is liable to be taken with rests, wherever rests would be charged if rents and profits had been received. As against Ten- dors. Purchasers Vendobs. — A vendor who continues in occupation after the time fixed for completion may be charged with an occupation rent : Leggott y. Metropolitan E. W. Co., 5 L. R. Chy. 716; Dyerv. Hargrave, 10 Ves. 505 ; but not in oases where the purchaser could and ought to have taken possession : Dakhi v. Cope, 2 Buss. 170 ; nor where — the pur- chaser making default in payment — the vendor continues to carry on his business : Leggott v. Metropolitan E. W. Co., supra. Purchasers. — Where a conveyance is set aside, an occupation rent may be charged against a purchaser who has been in occupation : Bloomer v. Spittle, 13 L. R. Eq. 427 , Neesom v. Clarkson, 2 Ha. 163, but see Parkinson v. Hanbury, 2 L. B. H. L. 1. Chancicuy Order 220. 107 MOKTG AOEE. — A mortgagee may be charged with an occupation rent, Occupation if it be proved that he has actually occupied the mortgaged prem- rent ises Trulock v. Robey, 15 Sim. 265. Any agreement as to the amount of the rent made between mortgagor and mortgagee, though Jty „^ 'for occa- binding between them, is not binding on others interested in the Potion rent, equity of redemption who are not parties to it : Cou7-t v. Holland, 29 Gr. 19 ; Gregc] v. Arrott, LI. & G. temp. Sugd. 246. And where rent is paid in advance to a prior mortgagee, and applied, with the consent of the mortgagor, in discharge of other liabilities than the mortgage debt, a subsequent assignee of the equity of redemption is entitled to hS,ve all rents accruing subsequent to the assignment applied in reduction of the prior mortgage, notwithstanding the pay- ment and application! in advance : Gilmour v. Roe, 21 Gr. 284. A mortagee who continues in occupation after payment in full, is chai-ge- able with interest on the occupation rent, with rests : Wilson v. Met- calf, 1 Euss. 537 ; Quarrel v. Bedford, 1 Madd. 269 ; Lloyd v. Jones, 12 Sim. 491. A mortgagee in occupation, is entitled to set off, against the occupa- May set off ar- tion rent, with which he is charged, the arrears of interest, so far as '^*'^ ° '" "^ they were recoverable against the land at the time the rent accrued ; i. e. for six years prior to its accruing : Walton v. Bernard, 2 Gr. 358 ; Harrison v. Jones, 10 Gr. 99. A prior mortgagee is not bound to account to a subsequent mortgagee on the footing of a mortgagee in possession, merely because there is an attornment clause in the prior mortgage, if he have not actually taken possession : Western District Bank, Limited, v. Turner, 47 L. T. N. S. 433 ; Stanley v. Grundy, 22 Ch. D. 478 ; 48 L. T. N. S. 106. Tenants in Common. — A tenant in common who has been in exclu- TeDants in com- sive occupation, cannot be charged with an occupation rent, it he ™°jj|^ tor^occupa- have iiot ousted his cotenant ; Rice v. George, 20 Gr. 221. But tion rent, he cannot recover for substantial repairs and improvements, lb. ; nor even for encumbrances paid off by him, unless he also submit to account for an occupation rent : Teasdale v. Sanderson, 33 Beav. 534 ; Rivet V. Desourdi, 12 C. L. J. 203. But a tenant in common who has been in exclusive occupation, and has ousted his cotenant, is liable to account for an occupation rent : Pascoe v. Swan, 27 Beav, 508. Heibs. — An heir-at-law, is liable to account to a doweress for Heir-aWaw. an occupation rent : Bamford v. Bamford, 5 Ha. 203. Trustees, express, or constructive, in occupation, of the trust pro- Trustees. perty, are liable to account to their cestui que trust for an occupa- tion rent : Mill v. Hill, 3 H. L. 0. 82S ; Lamont v. Lamont, 7 Gr. 258. 108 Chancery Order 220. Improve- men ts. Persons in pos- sepfiion under void deeds, liow far entitled to. Tenants at will, improvements' ; by. Wrongdoer^ not allowed for im- provements. Exceptions to rule. Mistake of title, improvements made under, how far recoverable. Improvements :— Persons in Possession or Lands Under Void Deeds, making last- ing improvements, by which the value of the estate has been enhanced, may, within certain limits, be allowed for such improvements : Jor- tin V. South Eastern Jiailwai/ Co., 2 Sm. & G. at p. 73 ; Quarrel v. Bedford, 14 Ves. at p. 179 ; and whether in as actual, or construc- tive trustees : WiUi.mson v. Seaber, 3 Y. & C. Ex. 717 ; Cawdor v. Leipw, 1 Y. & 0. Ex. 427 ; Bridge v. Brown, 2 Y. & C. C. C. 191 ; Bevis V. Boulton, 7 G-r. 39 ; or as solicitors : Eohimon v. Ridley, 6 Madd. 2 ; or agents : Trevehian v. White, 1 Beav. 588 ; or as mort- gagees believing themselves absolutely entitled : Neesorn v. Clarhson, 2 Har. 176 ; 8. C. 4 Har. 97 ; or as a hon& fide purchaser under the void deed : Aston v. Innis, 26 Gr. 42 ; Ghurcher v. Bates, 42 Q. B. 466; Pegleyy. Woods, 14 Gr. 47; Gummerson v. Banting, 18 Gr. 516 ; and the claim for such improvements may be actively enforced, and allowed, whether the party claiming them be plaintiff, or defen- dant: lb. ; (but see Be Brazill, Barry v. Brazill, 11 Gr. at p. 256) ; and even though the party claiming adversely be an infant : Bevis v. Boulton, supra ; and see Biehn v. Biehn, 18 Gr. 497 ; Wood v. Wood, 16 (Jr. 471. But when possession had been taken in pursuance of an immoral agreement which was void, it was held that there could be no lien for improvements : Moon v. Clarke, 30 0. P. 417. Tenants at Will. — improvements made by a tenant at will can- not be allowed : Foster v. Mhnmerson, 5 Gr. 135 ; but improvements made on wild land by a son, to whom his father had promised to give it by way of advancement, which he faOed to do, were allowed as against the co-heirs of the father : Biehn v. Biehn, supra ; Hovey V. Fergiison, see 18 Gr. 498 ; but see Foster v. Emmerson, supra. Wrongdoers. — A mere wrongdoer, entering without colour of right, is not usually allowed for improvements made by him: Townsley V. Neil, 10 Gr. 72 ; Scott v. Hunter, 14 Gr. 376 ; nor persons entering with actual notice of a paramount title : Wyoming v. Bell, 24 Gr. 564 ; Smith v. Gibson, 25 C. P. 248 ; Kilborn v. Worhnau, 9 Gr. 255. But it would seem mere legal fraud will not deprive a party of the right to improvements : McLaren v. Fraser, 17 Gr. at p. 569 ; and see Nevills v. Nevills, 6 Gr. 121, 139 : and the owner standing by, and not objecting, may preclude himself from getting back his es- tate, except on the terms of paying for improvements : Davis v. Snyder, 1 Gr. 134. Improvements Made Under Mistake of Title, — Improvements made under a bond fide mistake of title may now be allowed under R.S.O.,c. 95, s. 4 : Fawcett v. Burwell, 27 Gr. 445 ; McGregor v. Mc- Gregor, lb. 470 ; McCarthy v. Arbuckle, 29 C. P. 529 ; Carrick v. Chancery Oeder 220. 109 Smith, 34 Q. B. 389 ; and see Shae v. C'hapma?!, 21 Gr. 549. But Improve- improvements made with actual knowledge of the paramount title, "^^^'S. will not be allowed under that Act : Wyominy v. Bell, 24 ("4r. 564 ; Smith V. Gibsoi}, 25 C. P. 248 ; and see Kilborn v. Workman, 9 Gr. 225. Improvements made after action commenced, cannot be allowed ; O'Grady v. McCaffrey, 2 0. R. 309. Improvements made under mistake of title by a person in as mort- By mortgagen gagee, but believing himself absolute owner, are allowed more liber- to te t°he omer?^ ally than improvements made by a mortgagee knowing he is a mort- gagee: Ca/rrollY. Sohertnon, 15 Gr. 173. Tkustebs. — Substantial and lasting improvements, and repairs, Trustees are en- made by a trustee on the tnist property, are usually allowed to him : folntSAorlm- Bevis V. Bvulton, 7 Gr. 39 ; Mill v. 3fill, 3 H. L. 0. 828 ; Smith Bonni- provements on steel, 13 Gr. at p. 35 , Ex parte Hughes, 6 Ves. 624 ; Ex parte Javies, '™"'^"='*''- 8 Ves. 352 ; Campbell v. Walker, 5 Ves. 682 ; Davey v. Durant, 1 D. G. & J. 535 ; King v. Anderson, 8 Ir. R. Eq. 625, 636. Repairs are allowed even in the case of actual fraud : Bauyh v. Price, 1 G. Wils. 320 ; and in one case improvements also ; Oliver v. Court, 8 Price 172. But see contra :-Kermey v. Browne, 3 Ridg. 518 ; Stratlon Murphy, 1 Ir. R. Eq. 361. Receivers have been allowed for improvements made without the geceiver previous sanction of the Court : Tempest v. Ord, 2 Mer. 55. Committee of Lunatic. — Also allowed for improvements made. Committee, without previous sanction : Re Shaw, 15 Gr. 618 ; Re Churchill, 3 Jur. 719. Personal Representative. — An unauthorized expenditure by an Personal repre. executrix in improving the realty, was allowed, so far as the value of ^''°*'''"'''- the estate had been enhanced, and those interested had benefited by it : Morley v. Matthews, 14 Gr. 551. But where an administratrix had occupied and improved the realty, in a suit by her for administra- tion, such improvements were disallowed as against infant heirs ; but she was not charged with any increase of rental in consequence of such improvements : Re Brazill, Barry v. Brazill, 1 1 Gr. 253. Purchaser. — Failing to complete purchase' is not entitled to be „ , allowed for improvements : Re Yaggie, 1 Chy. Ch. R. 52. Mortgagee — The ordinary rule is, that a mortgagee will not be nortgagee. allowed for improvements further than is proper to keep the premises in necessary repair. But if buildings, are incomplete or ruinous, he may complete, or pull them down, and rebuild, and the rebuilding, or repairing, may be done in an improved manner, and more substantially than before, so that the work be done pi-ovidently, and that no new or expensive buildings be erected for purposes different from those for which the former buildings were used ; for the property when restored ought to be of the same nature as when the mortgagee received it- 110 Chancery Order 220. Improve- ments. Mnrtfracees en- tilled u» be ^allowed for uecesear)' repairs. J3ut not puch as are not neces- sary for preser- vation of pro- perty. Mortgagor's panetion not necessary. If mortgagee charged wilh in- creased rents ari.cing from im- provements, he should be allowed improTe- ments also. Improvements by purchaser, when sale invalid, allowed. Secus if he have knowledge of defect. Fisher Mort. 1532. And while the mortgagee in possession is not allowed to charge for lasting improvements which are not requisite for the purpose of keeping the property in necessary repair, he is not, on the other hand, chargeable with the increased rents and profits which are directly traceable to such improvements made by him. See Jones on Mortgages, s. 1127. Mortgagees in possession are entitled to be allowed for necessary repairs as just allowances. But in England no allowance for sub- stantial repairs or, permanent improvements, can be made without an express direction. Seton 1080. In Ontario, under Orel. 219, 220, no special direction in the judgment is necessary to enable the Master, in a proper case, to allow substantial improvements . A mortgagee in possession cannot charge the mortgaged property with improvements that are not necessary for its preservation, Harrison v. Jones, 10 Gr. 99, unless with the consent of the parties entitled to the equity of redemption : Kirby v. Kirby, 5 Gr. 587- And improvements made even with the mortgagor's sanction must not be such as to improve him out of his property : Sandon v. Hooper, 6 Beav. 246. Fish. Mortg. 948. Bat a mortgagee is not bound to give the mortgagor notice before making any reasonable permanent improvement : Shepherd v. Jones, 47 L. T. N. S. 604 ; 21 Ch. D. 469. When a mortgagee is ch.arged with rents, or improved rents, arising from his improvements, he should either be allowed for such improve- ments: Constable v. Guest, 6 Gr. 510, or he should not be charged with the rent, or improved rent, arising therefrom : McGregor v. J/c- Greaor, 19 C. L. J. 78. The Master is not necessarily bound to allow the actual cost of improvements, but should limit th^ allowance to the benefit which the property has derived therefrom : Paul v. Johnson, 12 Gr. at p. 479. A person who had bon& fide purchased under a power of sale iu a mortgage, notwithstanding the sale being held invalid, was allowed improvements made by him as far as they enhanced the value of the property, and was not restricted to such improvements as a mortgagee in possession would have been entitled to make, knowing himself to Be a mortgagee : Carroll v. Robertson, 15 Gr. 173; and see McLaren v. Fraser, 17 Gr. 567 : Davey v. Diirant, 1 D. G. & J. 534. But when a purchaser from a mortgagee, who had obtained a decree of fore closure, which was defective owing to there being outstanding claims, which w^ere not foreclosed, entered, and made improvements, having notice of the outstanding title, such improvements were dis- allowed as against the uutoreclosed parties ; Russell v. Romanes, 3 App. R. 635 ; and see Romanes v. Herns 22 Gr. 469. Chancery Order 220. Ill But where the mortgagor released his equity of redemption, and Mortgagee sub- , ° ° , , ■ mitting to be two months aitei'wards the mortgagee agreed to reoonvey, upon being redeemed after repaid principal and interest, and all costs of improvements made yJlg^™"^^ jJJi". by him. On a bill to redeem, the mortgagee was held entitled to provements. recover for all permanent improvements, although the estate might not have been increased in value to an amount equal to the sum ex- pended : Brotherton v. HeiJierington, 23 Gr. 187. What Improvements allowed. — The clearing of land for farming What improve- purposes is a permanent improvement, under The Dower Act, E. S. 0. """^ * ^ °'''^ ' c. 55, s. 3, ss. 2 ; RoUnet v. PicJcermg, 44 Q. B. 337. After suit commenced, the only improvements which can ordinarily be allowed, are such as are made to save the premises from deteriora- tion : Haiun v. Cashion, 20 Gr. 518 ; and see O'Grady v. McCaffrey, 2 0. E. 309. Trustees with power to invest in the purchase of real estate, may be allowed for erecting a new building where an increased income can be obtained thereby : Re Henderson, 23 Gr. 45. A rector cannot make a lease with a covenant, to pay for improve- Covenant to pay ments, which will be binding on his .successor: Kirhpatrkk v. Li/ster, forimprovemema 13 Gr. 323; 16 Gr. 17. lease invalid. Costs, and other Expenses:— Mortgagees. — A mortg.ageeis entitledtochargeagaiust the estate. Costs and ex- the costs of defending the title to the mortgaged estate, for the able by mortga- benefit of all parties interested in the equity of redemption ; but 8^*^- not of defending his own title to the mortgage, unless those interested in the equity of redemption had concurred in, or assisted, the liti- gation : Parker v. Watkins, John. 133. Also, costs of a suit to redeem, brought by a subsequent incumbrancer, and dismissed : McKinnon v. Anderson, 17 Gr. 636 ; 18 Gr. 684. The mortgagee may also be allowed the expenses of sales, and of Costs of sales, receiving the purchase money : Fish. Mortg. 952. But he is not entitled to a commission on a sale in addition 'to the costs, even though he has stipulated for it : Eyre v. Hughes, 2 Ch. D. 148 ; Brocul V. Selfe, 9 Jur N. S. 885. A mortgagee is also entitled to the expenses of taking and holding Costs of taking possession of a ship, advertising it for sale, and insurances : iri^ies insurance 'etc. V. Samiion, 7 Ch. D. 188. He is not entitled to charge for personal trouble in collecting Cannot charge " ^ ° for personal rents : Bonithon v. Hoclcmore, 1 Vern. 316 ; Langstaffe v. Fenwick, services. 10 Ves. 405 ; Godfrey v. Walson, 3 Atk. 518 ; Leith v. Irvine, 1 M. & K. 277 ; not even if he have stipulated for it with the mortgagor : French v. Baron, 2 Atk. 120 ; Barrett v. Hartley, 2 L. E. Eq. 789 ; Chambers v. Goldwln, 9 Ves. 271. And, except under special circum- 112 Chancery Oeder 220. Nor for bailiff's stances, the mortgagee is not entitled to any allowance for an agent, "[.■^r'TOlLottng or bailiff, collecting rents; Stains v. Ban/cs, 9 Jur. N. S. 1049 ; Eyre reuts. y Hugliex, supra. Insurance, when INSURANCE. — Sums paid for insurance by a mortgagee cannot, in recoverable. ^.^^ absence of a special contract, be charged against the mortgaged estate; Bellamy v. Brkhaiden, •2J. &H. 137; Brook v. Stone, 13 W. R 401 ; Dobson v. Land, 8 Ha. 216 ; Russell v. Robertson. 1 Chy. Ch. R. 72 ; 6 V. C. L. J. 143 ; but see Scholefeld v. Lorlcwood, 11 W. R. 555. But in the case of a trustee, such payment may be aUowed, without any express stipulation to that effect in the instru- ment creating the trust : Heron, v. Moffatt, 22 Gr. 370. Where a subsequent account is directed to be taken, sums properlj- paid for insurance since the last account, may be allowed under the head of just allowances, without any express direction : Bethune v. C'aleiitt, 3 Gr. 648. Prior, encum- Peiok Encumbkances. — A mortgagee paying ofif prior encumb- rances, is entitled to recover the amount paid, and interest on the principal ; at the rate in his own mortgage, and on the interest and costs, at six per cent. : McMaster v. Hector, 8 C. L. J. N. S. 284 ; and see Teeter v. St. John, 10 Gr. 85. But a tenant in common in sole possession paying oflf encumbrances, is not entitled to be allowed therefor, unless he submit to account for an occupation rent : Rivet V. Desourdi, 12 C. L. J . N. S. 203. Trustees entitled Tkustees are entitled to recover as against the beneficiaries the to exoei ses of ' ' ^^P®^^^® "^ bailiffs, surveyors, and accountants, when necessarily em- bailiffs &e. ployed, and also the necessary legal expenses of carrying the trust into effect : Wilkinson v. Wilkinson, 2 S. & S. 237 ; McNamara v. Jones, 2 Dick. 587 ; Henderson v. Mclver, 3 Madd. 275. But solicitor But a trustee acting as solicitor for himself, or for himself and tit'le/'t"°ha°"ge "tliei'S as trustees, in any action in which he, or they, are plaintiffs, is for professional in general, only entitled to costs and expenses out of pocket, properly service.'!, unless .,,, ti -ht ' i: r j expressly author- lucurred, Moore v. Frowd, 3 My. & Or. 45, 50 : Robinson v. Petf, 2 to'^iio!'^ ""'' '° ^^'- * '^- Lead. Ga. Eq. 241 ; unless there be a special power to charge for professional services: Re Sherwood 3 Beav. 338 ; Muorev. Frowd supra ; Re Wythe, 11 Beav. 209 ; but even then, no charge can be allowed for doing professionally, any thing that he would have been bound to do himself, if not a solicitor : Harbin v. Darby, 28 Beav. 325 ; and what he cannot charge for professionally himself, he cannot recover for, if done by a partner though not a trustee : Christophers v. White, 10 Beav. 523 ; Collins v. Carey, 2 Beav. 128 ; unless the busi- ness was done by the partner for his own benefit, and the trustee Or where he is does not share therein : Clack v. Carlow, 7 Jur. N. S. 441 ; 9 W. E. 568 ; and where a solicitor trustee, who is one of several trustees, and acts for them as defendants, he may recover profit costs against the trust estate : Cradock v. Piper, 1 Mc. & G. 664 ; 17 Sim. 41 ; but Chancery Order 220. US see Lewin 249 : Manson v. BailUe, 2 Macq. 80. The profit costs of pro- profit costs re- fesaional services which cannot be recovered as against the c. a. t. or '=°''^™*''' ^^ainst . P .-, . , , , ,11 thn-d parties, out 01 the trust estate may be recoverable by the trustee against a third party : Colonial Trusts Co. v. Cameron, 24 Gr. 548 ; Meighen V. Buell, 25 Gr. 604. A retaining fee paid by trustees to their solicitor in an administra- Ketaining fee tion suit, may be allowed under certain circumstances ; see Cliisliolm Iraalelt how ^^ T. Barnard, 10 Gr. 479 ; and see Hayes v. Hayes, 29 Gr. 90 ; but *^' recoverable, they are not entitled to any allowance for gratuitous services of an agent : Chisholm v. Barnard, 10 Gr. 479. Costs paid by an executor, administrator, or trustee, to his solici- tor, in respect of business of the trust estate, may be allowed, but the Master should examine the bill, and without strictly taxing it, should moderate it, by deducting such charges, if any, as are im- proper : McCargar v. McKinnon, 17 Gr. 525 ; Hayes v. Hayes, 2q Gr. 90. Trustees expenses are a lien upon the trust estate, and have priority Trustees ex- to the costs of suit : Morison v. Morison, 7 D. M. & G. 214 ; 2 S. Sn'trusTesrat'e!'" & G. 564 ; Gaunt v. Taylor, 2 Har. 413 ; unless the payments are not strictly authorized and the estate is insufficient : Eobison v. Killey, 30 Beav. 520 ; or they have misconducted themselves : Rose V. Sharrod, 11 W. E. 356. Just Allowances. — Several of the matters which may be allowed j^gt allow- under the head of "just allowances'' have already been discussed ^''•'^^' in the preceding notes to this Order. Compensation TO Executors, and Trustees. — Compensation for compensation tr> c-ire, pains, and trouble, may be allowed by the Master to trustees under ej^eoators and , ... trustees, any deed, settlement, or will ; or to any other trustee, however the trust is created ; and to executors, and administrators ; and to any guardian appointed by any Court ; or to any testamentary guardian B. S. 0. c. 107, ss. 36-40 : Be Commissioners of Cobourg, 22 Gr. 377 ; Be Toronto Harbour Commissioners, 28 Gr. 195. The Act is retrospective : Thomson v. Freeman, 15 Gr. 384 ; McMillan v. McMillan, 21 Gr. 369. The Surrogate Judge has also power to allow compensation to trustees under wills, and to executors, and administrators : B. 8. 0. c. 107, s. 41. But when an action is pending in the High Court in regard to the administration of an estate, it is impro- per for the Surrogate Judge to interfere by ordering the allowance of compensation to the executors, or trustees : McLennan v. Heward, 9 Gr. 279 ; Cameron v. Beihune, 15 Gr. 486. And the Master is bound to exercise his own discretion as to the compensation to be allowed, regardless of any order of a Surrogate Judge made under such cir- cumstances : Biggar v. Dickson, 15 Gr. 233 15 114 Chancery Okder 220. No fixed rule as to amount of ^^ompeniiiitioQ, Usually a per- centage on re- €ttipt!5, and pay- ments. But a lump eum may be allowed. A flidirjg scale suggested. No fixed rule can be laid down as to the amount of compensation proper to be allo'ned, as it must necessarily depend on the circum- stances of each case ; see Robinson v. Pett, 2 W. & T. L. 0. Eq. 241. Usually the amount is fixed by a percentage on the amount of money passing through the hands of the trustee, or executor. In some cases five per cent has been allowed : Bald v. Thompson, 17 Gr. 154 : McLennan v. Heward; 9 Gr. 178; Chisholm v. Barnard, 10 Gr. 479. But this may in some cases be more, and in some, less, than an adequate compensation. In Torrance v. Chewett, 12 Gr. 407, four per c^nt. was allowed ; and in McMillan v. McMillan, 21 Gr. 381, two and a-half per cent, was allowed. The Master may, instead of a percentage, allow a lump sum, but only upon proper evidence as to the services rendered : Stinson v. Stinson, 8 P. K. 560 ; Denison v . Denison 17 Gr. 306. In fixing compensation, it has been suggested that it would be proper to adopt a sliding scale, similar in principle to that on which the poundage of Sheriffs is fixed ; see observations of Spragge, V. C. ; I'liompson v. Freeman, 15 Gr. at p. 387. In that case, the estate amounted to nearly $300,000, and five per cent, on the amounts disbursed, which included investments, and reinvest- ments, made in the course of fifteen years, was considered excessive; and on appeal, the allowance was reduced to five per cent, on invest- ments of sums of $600, and three per cent, on investments over that amount. Allowance of per- centage on invest- ments, and rein- vestments, disap- proved. Legacies given to executors as com- pensation £)o not abate. Bear interest. But in a later case it was considered vicious in principle, to allow any commission on investments, or reinvestments, on the ground that it offered an inducement to trustees to be constantly, and unneces- sarily, calling in and changing, the investments : Re Berkeley's Trusts, 8 P. R. 193. No commission should be allowed for merely receiv- ing the trust estate until it has also been duly accounted for : lb.; When a legacy is given to executors or trustees as a compen- sation for their trouble, they are not precluded from claiming a further sum under the statute, if the legacy is inadequate : Denison v. Denison, 17 Gr. 306. But see Kennedy v. Pingle, 27 bring in the same in the form of debtor and creditor, verified by affidavit. The items on each side of the account are to be numbered consecutively, and the account is to be referred to by the affidavit as an exhibit, and not to be annexed thereto. (?rd June, 1853 ; Ord. 42, s. 6.) Personal repre- When a personal representative of a deceased person is required to sentative bound account in respect of the dealings of the deceased, he is bound to to malie up ac- ^ *^ counts from make up the accounts of such dealings, from the books in his posses- session." ^''"^ sion : Strathy v. Crooks, 6 Gr. 162. Objections to ^ P^rty may be estopped by acquiescence from moving to set aside accounts, waiyer accounts brought in, in an improper form : Weak v. Rice, 0. P. Coo. ° • 438. Cross-examinine '^^^ deponent may be cross-examined on an affidavit verifying ae- acoounting party counts. A party who is to be cross-examined on an affidavit verifying Notice of ob' - ^<'<""-^''*Si i^ entitled to detailed notice of the points in respect to tioiis necessary, which he is to be examined : Re Lord, Lord v. Lord, 2 L. E. Eq. 605. A notice that all the items but one are objected to, is insufficient ; Mc Arthur v. Dudgeon, 15 L. R. Eq. 102 ; and see Oi-d. 237, post. Such cross-examination may take place before the account is vouched : Meacham v. Cooper, 16 L. E., Eq. 102. Master may di- 228- The Master, if he thinks fit, may direct that in rect books of . -^ account to be taking accouuts, the books of account, in which the talfen &s prima fame evidence, accounts required to be taken have been kept, or any of them, be taken as prima facie evidence of the truth of the matters tlierein contained, with liberty to the parties interested to take such objection thereto as they may be advised. (3rd June, 1853 ; Ord. 42, s. 2.) This Order is adapted from Imp. Stat. 15 & 16 Vict. c. 86, s, 54, Chancery Orders 229—231. 12S Every sum of $8 and under, is allowed without a voucher, upon the oath S""s of $8 and of the accounting party ; see Everard v. Warren, 2 Oh. Ca. 249 ; but his wiiliout voucher. oath must be positive, and not on belief only : Robinson v. Gumming, 2 Atk. 410 ; and it would seem that the aggregate of such items should not exceed |400 in amount : Bennett's M. 0. 86. Greater latitude in proving other items is also allowed when the account is of long standing : lb. Receipts, or other vouchers, must be produced, but when they are lost, or accidentally destroyed, secondary evidence ^"o'Ji'J™!'*" ''^ wUl be let in : lb. ; and it is to such cases, or when, for any other reason, it is impossible to vouch the account in any other way, that Ord. 218 is intended to apply : Lodge v. Prichard, 3 D. M. & G. 906 ; and see Euoart v. Williams, 7 D. M. & G. 67. In part- Books of account , . 1 J.1 1 1 £ ^ e i_T n T • when admi sible. nership cases, however, the books ot account of the nrm are admis- sible by virtue of the general law, without any special direction : Gething v. Keighley, 9 Ch., D. 547, 551. Books of trustees of a will, were allowed to be taken as prima facie evidence for a period of 21 years, as against a cestui que trust who had access to them, but had not actually inspected them : Banks v. Oartwright, 15 W. E. 417 ; and see Sleight v. Lawson, 3 K. & J. 292 ; Ogden v. Battams, 1 Jur., N. S. 791 , Hardwick v. Wright, 15 W. K. 953. 229. No state of facts, charges, or discharges are, to no state of facts, be brought into the Master's office ; and where original ''™"si't in. deeds or documents can be brought in, no copies are to be made without special direction. (3rd June, 1853 ; Ord. 42, s. 5.) 230. Where directed, copies, abstracts of, or extracts ^o'^tobesuppuld from accounts, deeds, or other documents and pedigrees, ^ °''''*'" *'™"''- and concise statements, are to be supplied ; and where sp directed, copies are to be delivered as the Master may direct. (3rd June, 1853 ; Ord. 42, s. 5.) The party having the conduct of the reference, is usually required to furnish copies, abstracts, &c., which relate to the general enquiries, and the other parties only such as relate exclusively to themselves ; see ante note to Ord. 211. 231. A party directed by the Master to bring in any J'f.l^.J'dTr^cwoS account, or do any other act, is to be held bound to do^^*""'^^"""'- the same in pursuance of the direction of the Master, without any warrant or written direction being served for that purpose. (3rd June, 1853 ; Ord. 42, s. 2.) 124 Chancery Orders, 232 — 235. This Order of course implies that the party directed to do the act, or his solicitor, has actual notice of the direction, otherwise a warrant must be taken out and served. wareant to ap- 232- Before proceeding to the hearing and determin- point a day to ^ ^ ' • i ■ j.!, ascertain what is ing of a reference, the Master may appoint a day in the admitted and ® ./ j. a ./ ^ what contested, meantime, if he thinks fit, for the purpose or entering into the accounts and inquiries, with a view to ascer- taining what is admitted and what is contested between the parties. (3rd June, 1853 ; Ord. 42, s. 2.) When day not 233- Where the Master has omitted to appoint a day previously ap- /-\ i c^nc» i pointed, warrant for the purposes mentioned m Order 232, he may grant may issue to ^ ^ ascertain what to the party bringing in accounts a warrant to proceed on the same, for the purposes aforesaid ; such warrant to be underwritten, as follows : " On leaving the ac- counts of, &c. ; and take notice that you are required to admit the same, or such parts thereof as you can properly admit." (3rd June, 1853 ; Ord. 42, s. 3.) As to the costs occasioned by any party improperly refusing to admit facts, see Oi-d. 234 ; Mclntyre v. Canada Co., 18 Gr. 370, and see EuU S. C. 163. Master to tax 234- Where it becomes necessary to adduce evidence, costs occasioned . . . . j i t i • by improper re- Or to iHcur cxpcnses otherwise, m establishing or prov- fusal to admit . ., _ , i*i',i-i items of accounting items 01 accouut, or other matters which in the judg- or otlier matters, p i -nyr i i n ji and to state in meut 01 the Master ought, under all the circumstances, to report how thev ., were occasioned, have been admitted by the party sought to be charged therewith, and which the party has refused to admit, the Master, before making his report, is to proceed to tax such costs, occasioned by such refusal, as shall ap- pear to him rea.sonable and just, and shall state in his report the amount of such costs and how the same were occasioned. (3rd June, 1853 ; Ord. 42, s. 3.) This Ord. appears to be still in force : See Rule S. C. 445. As to recovering such costs by execution, see Ord. 235. and as to setting off same against general costs, see Ord. 236. Process may 235. The party to whom costs are payable under jssue to enforce x ./ r j payment of such Order 234, is to be entitled, upon the Master's report becoming absolute to the process of the Court to com- Chancery Orders 236-r238. 129 pel payment thereof as in other cases. (3rd June, 1853 ; Ord. 42, s. 3.) It is not very clear from this Order, whether, or not, it is necessary to apply for an order for the payment of interlocutory costs awarded by a Master under Ord. 234, before execution can issue. Usually no execution can issue except under an order, or judgment, of the Court, or Judge, or of the Master in Chambers, or other officer having power to act in Chambers. See Hatch v. Searks, 2 Sm. & G. 147. 236- Where the party entitled to receive the general costs occasioned costs of the cause is the party ordered to pay costs fusai to admit T/^T !■ Ti 11 1 may bo Bet off. under Order 234, he is at liberty to deduct such costs from the general costs, where the general costs and the interlocutory costs, are between the same parties. (3rd June, 1853 ; Ord. 42, s. 3.) This Ord. appears to be still in force : See Bide S. 0. 445. 237- A party seeking to charge an accounting party Ji'f-fjfjjf 1*^^°^ '° beyond what he has in his account admitted to have ™""''°e »"'>: .J must give notice received, is tb give notice thereof to the accounting °f p^'^''""'""- party, stating so far as he is able, the amount so sought to be charged, and the particulars thereof in a short and succint manner. (3rd Jund, 1853 ; Ord. 42, s. 7.) {Eng. Con. Ord. 35, r. 34.) An accounting party who is intended to be cross-examined on his .iccouEtiugpariy ™. 1 . .,- . 1 • • • j_'xT 1 j_ j_- r J.1 -i. c'tititlfd to notice affidavit verifying his accounts, is entitled to notice or the items on <,( items, he is which he is to be cross-examined : Re Lord, Lord v. Lord, 2 L. E. , Eq. '" ^^ cfoss-ex- :iminecl on. 605 ; Wurmsley v. Sturt, 22 Beav. 398, and it is not sufficient to in- form him that all the items except one are objected to, but the no- tice must specify the points on which the cross-examination is to proceed : McArthar v. Dudgeon, 15 L. R., Eq. 102, and see Glover v. Ellison, 20 W. R. 408, and unless he be duly notified he may refuse to be sworn : McArthur v. Dudgeon, supra ; see Eng. Ord. 30, of 16th Oct., 1852. 238. The Master is to keep in his office a book, to Master's Book, , _ , „ . 1 . - ,, how to be kept, be called the ''Masters Book, m which, upon the brino'ing in of an order of reference, are to be entered, the style of the cause, the name of the solicitor prose- cuting the reference, the date of the order being brought in, and the proceedings then taken ; and the Master is 126 Chancery Oedees 239—241. also to enter therein, from time to time, the proceedings taken before him, and the directions which he gives in relation to the prosecution of the reference, or other- wise. (3rd June, 1853 ; Ord. 42, s. 4.) Master to certify 239- Upon the application of any person, the Master proceedings io ^ ■*■ ^ , bis office. is to certify, as shortly as he conveniently can, the several proceedings had in his office in any cause or matter, and the dates thereof (3rd June, 1853 ; Ord. 42, s. 9.) After a Master has made his report, he should not certify as to any matters before him in the course of the enquiry upon which he has made his report, unless required by the Court so to do : Eosebatch v. Parry, 27 Gr. 193. For forms of certificates, see Leggo's Forms, 2nd ed. , Nos. 669, 966, As to appealing from a certificate, see post Ord, 252, note. Master to devise 240. In giving directions, and in regulating the man- tpecdies't method ner of proceeding before him, the Master is to devise "eferences! ""^ and adopt the simplest, most speedy, and least expen- sive method of prosecuting the reference, and every part thereof; and with that view, to dispense with any proceedings ordinarily taken, but which he conceives to be unnecessary and to shorten the periods for taking any proceedings ; or to substitute a different course of proceedings for that ordinarily taken. (3rd June, 1853 ; Ord. 42, s. 2.) The Master is not authorized under this Order to employ the ser- vices of experts : Re Robertson, Robertson v. Robertson, 24 Gr. 555. Appointments 241. Where the Master directs parties not in attend- ma/b?inciud'ed ^ncc before him, to be notified to attend at some future day, or for different purposes at different future days it shall not be necessary to issue separate warrants, but the parties shall be notified by one appointment, signed, by the Master, of the proceedings to be taken, and of the times by him appointed for the taking of the same. (29th June, 1861.) The words "warrant" and "appointment," though apparently used in this and the two following Orders as distinct things, appear may in one warrant Chancery Orders 242—244. 127 nevertheless to be in effect convertible terms ; see Bennett's M. 0., p. 6 et. seq., and see form of warrant : Bennett's M. 0. App. i. 242- Where parties are notified by appointment from Parties notifled the Master, of proceedings, to be taken before him, no to be served with ... warrant. - warrants are to be issued as to such parties, in relation to the same proceedings. (29th June, 1861.) 243. Parties making default upon such appointments, Parties notified, " ^ .„ liable for default, are to be sub ect to the same consequences as if war- as if served with /IT n \ warrant. rants had been served upon them. (26tli June, 1861.) 244. Where in proceedings before tlie Master, it ap- Master may add ^ , parties in his pears to him that some persons not already parties office, ought to be made parties, and ought to attend, or be enabled to attend the proceedings before him, he may direct an office-copy of the decree to be served upon such parties ; and upon due service thereof, such parties are to be treated and named as parties to the suit, and are to be bound by the decree in the same manner as if they had been originally made parties. (3rd June 1853 ; Ord. 42, s. 15.) The Master has power to dispense with service of the judgment on Master may dis- parties required to be served therewith under Ord. 60 ; see Ord. .f^ST ; ^™erfSd^fe''nt. but he would seem to have no power to dispense with service on parties who ought to be added as parties under the provisions of this Order. Persons served with a copy of a judgment under Ord. 60, are not thereby made parties to the action : see notes to Ord. 60 ; but per- sons required to be served under Oirl. 244, are made parties to the action. Where persons are required to be added as parties, the Master Adding parties usually issues an order making them parties, and directing them to be served with the judgment, or order, of reference, indorsed as re- quired by Ord. 245. Persons who acquire equitable interests in the subject matter of Persons arqulr- litigation pendente life need not be added as parties, but are never- ]ientl"liS'm-ei'' theless bound, and concluded, by the proceedings : thus, a person re- not be added, covering a judgment, and execution, against a mortgagor : Wallbridge V. Martin, 2 Chy. Oh. E. 275 ; or obtaining a mortgage, or other in- cumbrance from him : Robson v. Argne, 25 Gr. 407 ; pending an action for foreclosure, or sale, by a prior mortgagee, need not be made a 128 Chancery Orders 244 — 246. Except assignee party. But where a person acquires the legal estate pendente lite it may sometimes be necessary to make him a party for the purpose of obtaining a conveyance. Persons having Persons having a paramount title to the plaintiff, can not be made STbraddld parties in the Master's office, if they object : Montgomery v. Shortis, in M. 0. 3 Chy. Ch. E. 69. Thus in a suit by an execution creditor, tO' .set- aside a fraudulent conveyance of the equity of redemption by the execution debtor, an order adding a prior mortgagee for the purpose of redeeming him, was discharged. When that is required he should be made an original party to the action : Crawford v. Meldruni, Iff Gr. 165. But when a decree had beeu made to take partnership accounts, in the absence of one of the partners alleged to be insol- Party out of vent and out of the jurisdiction, it was held that he was properly ma de iction'co™.'' ™ a party in the Master's office on his returning to the jurisdiction menced, may be pending the reference : Patermn v. Holland, 7 G-r. 563; and as to- added in M. 0. on -^ . °. ^ , < no his return. parties interested in the eqility of redemption, see Urd.- 438. When action is The action is only deemed to be commenced as against parties comnienced"'as added in the the Master's office from the date of the order adding against parties them . Juson v. Gardiner, 1 1 Gr. 23 ; and see Dunible v. Laruah, added in M.O. g^ q^, jg^ . gf^^n^y ^^ Campbell, 1 Chy. Ch. R. 147. Where it is- made to appear to the Master that all liability on the part of a party added, is barred by the Statute of Limitations, he may discharge- the order adding him as a party : Kline v. Kline, 3 Chy. Ch. E. 161. No relief can be ^0 direct relief can be had against parties added in the Master's had against par- office, and they cannot be required to account : Hopper \. Harrison, 28 Gr. 22 ; Rolpli v. Upper Canada Building Societlj, U Gr. 275, 27&; Walker Seligmann, 12 L. R. Eq. 152. And it would seem they can- not themselves get any relief against co-defendants beyond what is claimed by the plaintiff : see Whitney v. Smith, 4 Li R. Chy. 513 ;. they are simply bound by the proceedings. Party filling two A partj' filling two capacities, if made a party to a suit distinctly capacuies, added jj, ^^g capacity only, may not be bound as to his rights in the othei' m one, may not ir j j j j o be bound in the capacity ; e. gf. , a person added as a defendant in his- character of a judgment creditor, was held not to be bound in his character as a mortgagee : Crooks v. Watkins, S Gr. 340. pfflce copv of 245. The office-copy of a decree directed to be served' Jerv^edmi parties Under Order 244, is to be indorsed with a notice to the effect set forth in schedule L to these Orders, witli such variations as circumstances require. (3rd June, 1853 ; Ord. 42, s. lb.) Parties added in 246. A party scrvod with an office-copy of a decree ^g^sUn^g"""^ under Order 244, may apply to the Court, at- any time m'^nt. Chancery Ordees 24'6— 247. 129 ■within fourteen days from the date of such service, to discharge the order, or to add to, vary, or set aside the decree. (3rd June, 1853 ; Ord. 34, s. 7.j The application should be brought on to be heard within the four- Application teen days, see Ord. 339, and oases there noted. But the application when tobeheard. may, in the discretion of the Court, be entertained after that time : Stewart v. Hunter, 2 Chy. Ch. E. 265. The time of vacation is excluded from the fourteen days : Ord . 408, s. 7. Where a party is added who claims by title paramount to the plain- p ^ , -.^^ ^j^^, tiflf, he should move to discharge the order; Montgomery v. Shortis, claims to be prior 3 Chy. Ch. R. 69 ; Crawford v. Meldrum, 19 Gr. 165. But an in- rtould°mov6 to cumbrancer claiming priority to the plaintiflf, but whom the Master di'-oharge order, or may appeal. finds to be subsequent, may also appeal from the report on the ques- tion of priority : McDonald v. Rodger, 9 Gr. 75. The Master may himself discharge the order adding a party who jj^t^^ ^^y ^^^. subsequently appears to be an unnecessary party : Kliiie v. Kline, charge order 3 Chy. Ch. E. 161. ''''™' 247- As soon as the hearing of any matter pending faster to notify before the Master is completed, he shall so inform the hearTng'ranciud- parties to the reference then in attendance, and make uin^'his book.* a note to that effect in his book ; and after such entry eviae^Ke^can be no further evidence is to be received, or proceedings fJav" '^°'^ ^ had, without the special permission of the Master ; and the Master may proceed to prepare his report or certi- ficate without further warrant, except the warrant to warrant to settle settle, which is to be served on the parties, as the serTOi. ° Master directs. (3rd June, 1853 ; Ord. 42, s, 16.) There is no difference between a report and a certificate of a Mas- Master's report ter, "though we apply the term 'report' to the more lengthened *""* ''"'"''^''**- productions of a Mastei", and the term 'certificate' to his shorter, statements. It is, I think, clear that all his reports are certificates, and all his certificates are reports, " per Shad well, V. C. , Chennel v. Martin, 4 Sim. 344. Parties served with the judgment under Ord. 60, who do not give parties served notice to the plaintiff that they desire to attend the proceedings, ''"* judgm!!nt , need not be served with a warrant to settle the report : Green v. notice, unless Measures, W. N". (66), 122; Lee v. Sturrock, W. N. (76), 226. leldinga*"* ''™" It would seem that a warrant to settle a report requires four days' yy^rraiit to settle service. See Bennett's M. 0. 20 ; Beames' Ord. in Chy. 259. report. 17 130 Chancery Okdee, 247. Applica'ion to open reftirence. Master not func- tus officio till he has fully re- ported. General report. Separate report. Special report. Report should state results, not reasons, or argu- ments, unless directed. It should not go beyond order of reference. When the Master has closed the reference, an application to let in further evidence may be made to him at any time before the report is signed : i?e Ritch'ie, Sewery v. Ritchie, 23 Gr. 66. After report, tho application can only be made to the Court : 0' Donohoe v. Hembrojf, 9 C. L. J. 312, or a Judge : see note to Ord. 252. But to warrant such application being granted, the applicant must in general make such a case as would entitle him to a new trial : Wad- dellv. Smyth, 3 Chy. Ch. R. 412 ; and see Patterson v. Scott, 1 Gr. 582 ; Saunders v. Saunders, 45 L. T. N.S.628 ; Carradice v. Carrie, 19 Gr. lOS; Mason v. Seney, 12 Gr. 143; Hashing v. Trrry, 8 Jur. N. S. 977. A Master is not Junctus officio until he has made his report on all the matters referred to him : Rae v. Geddes, 3 Chy. Ch. R. 404 ; but after he has made his report he should not certify as to any matters before him in the course of the enquiry upon which he has made his report, unless required by the Court so to do : Rosehatch v. Parry, 27 Gr. 193. Masters' Reports are either, General, Special, or Separate. A General Report, is that which comprises the conclusion which the Master has come to, upon all the matters referred to him by the judgment, or order under which he has proceeded. A Separate Report is that which embraces one or more separate matters of the reference, and the conclusion the Master has come to thereon ; and is limited thereto apart from the other matters referred. A Special Report, is a report of special circumstances found by the Master, as a guide to the Court for some further direction upon the facts so reported. Special reports on matters which the Master has power himself to adjudicate upon, and dispose of, are not to be made, unless specially directed by the judgment, or order, of reference. See Bennett's M. 0. 18, 19 ; Walmsky v. Bull, 2 Chy. Ch. R. 344. A report should not be dated before the costs included therein have been revised, when revision is necessary : Waddell v. McCoU, 14 Gr. 211. A report, like a judgment, should state results only, and should not set forth the evidence, arguments, or reasons on which the con- clusions are arrived at : Sovereign v. Sovereign, 15 Gr. 559. When the Master is specially directed to state his reasons, they should be stated briefly ; McCargar v. McKinnon, 15 Gr. 361. All unnecessary prolixity in reports is to be avoided : S. C, 17 Gr. 525. The report should not go beyond the order, or judgment, of refer- ence, or the Court will not respect it ; see Beames's Orders 23 ; and see Clousler v. McLean, 10 Gr. 576. And matters should not be Chancery Order 248. 131 reported specially, or as special circumstances, which the Master has Nor report ppe- himself power to adjudicate upon : e. g.; whether or not au account- ji^ferhaa^ower ing party is chargeable on the footing of wilful default, &c. : Walms- to adjudicate on. Uy V. Bull, 2 Chy. Ch., 344 ; whether or not a particular debt is, or or is not, an asset of an estate being administered : Glouster v. Mc- Lean, 10 Gr. at p. 578. But the Master should state in his report such matters as may be But should re- necessary for the information of the Court, on further directions, or ^"^jXy f" to enable it to dispose of the question of costs : e. g. The priorities disposition of of creditors : Lwvin v. O'Neill, 13 Gr. 179 ; and of legatees : Glous- ter V. McLean, 10 Gr. 576, should be stated ; and when a. separate < solicitor is appointed to represent a class, which is prima facie suffi- ciently represented by the plaintiff, or some other party to the action, the reason for the appointment should be stated : Gorham V. Gorham, 17 Gr. 386. Sums charged against an accounting party, on the footing of wilful Sums charged default, should be distinguished in the report from sums actually re- fm wilful neglect ceived : Moodie v. Leslie, 12 Gr. 537. fhou'.d be distin- guished. When the Master dispenses with service of judgment on parties when service of required to be served therewith by Ord. 60, he must state his reasons ■'"''8™°***" ^ _ .» > peosed with, it therefor, in his report ; see Ord. 587. should be stated. The Master should not make a final report in an action until he is Final report not in a position to deal with all the matters referred to him : e. g., it '^g Master'i^hi' is improper to make a final report in an action to wind up a partner, a position to ship, finding a balance due from one partner to another, until all the matters referred. asBsets are realised : Smith v. Grooks, 3 Gr. 321. But when the Master is not able to make a final report, he may, when necessary, make a separate report as to certain of the matters referred to him, and which he is able to report on. A report on sale is d familiar illustration of a separate report ; see Ord. 247, note. For forms of reports on sales see Ord. 387 ; and of reports in administration actions, Ord. 589. 248- Parties are to raise before the Master, in respect Points intended , . T . , to be raised on of any matter prerented in his oince, for his decision, appeal to he -^ •*■ , taken before all points which may afterwards be raised upon appeal ; Master. and in case an appeal is allowed on any ground not distinctly taken before the Master, the Court may order the appellant to pay the costs of the appeal. {6th Feb., 1865 ; Ord. 36.) ' From the terms of this Order it would seem that the Court may, Points intended in its discretion, entertain appeals on grounds not distinctly taken '" ''^ |'"'™''°° before the Master, but in such eases may order the appellant, even distinctly taken if successful, to pay the costs of the appeal. * "" "^ "'' 132 Chancery Order 249 — 252. Or Court may refuse to enter- tain it. In order to avoid any question as to whether or not any point intended to be raised on appeal, has been taken before the Master, it is safer to deliver the objection in writing, or to have it noted in the Master's Book ; but this is not absolutely necessary. See Ord. 253. Although the Court may allow an appeal on a ground not taken before the Master, it may refuse so to do. Thus, the Court refused to allow the Statute of Limitations to be raised on appeal, it not having been raised before the Master : Brigham v. Smith, 18 Gr. 224 ; and see Clotister v. McLean, 10 Gr. 576. See further as to appeals from reports : Ord. 253 and notes. Accounts, 249. In the Master's reports no part of any account, charges, affi- ^ . davits, &c., not charffe, affidavit, deposition, examination, or answer, to be set out in ^ ^ report. brought in or used in the Master's office, is to be stated or recited, but, instead thereof, the same may be referred to by date or otherwise, so as to inform the Court as to- the paper or document so brought in or used. (3rd June, 1853 ; Ord. 42, s. 12.) As to form of reports, see note to Ord. 247, pp. 130-1. Schedule to be 250- Reports affectins money in Court, or to be paid attached ps to . ^ i. i • >. • i i i moneys in Court, into Court, are to set forth m figures, m a schedule, a or payable into , . ,, , Court. brief summary of the sums found by the report, and which may be paid or payable, into, or out of Court. (10th Sept. 1865; Ord. 16.) 251- As soon as the Master's report or certificate is prepared, it is to be delivered out to the party prosecuting the reference, or in case he declines to take the same ; then, in the discretion of the Master, to any other party applying therefor ; and a common attendance is to be- allowed to the party taking the same. (3rd June, 1853;, Ord. 42, s. 16.) 252- A report is to become absolute,without an order confirming the same, at the expiration of fourteen days after the filing thereof, unless previously appealed from. (29th June, 1861.) Reports which Rectuire Confirmation.— All reports and certifi- cates, which are the subject of appeal, are, as a general rule, required to be confirmed before they can be acted ou : Scott v. Livesey, 2 Sim. lieport to be issued to party prosecuting reference, or if he decline it, then to any other party. Report when to become absolute, Keports requir- ing confirmation. Chancery Order 252. • 133 & S. 300 ; or any application can be made to the Court founded there - on : Hayes v. Hayets, 8 P. R. 546 ; Nichols v. McDonald, 6 Gr. 594 . There are, however, some reports, and certificates, which may he acted upon without confirmation, on their being filed. Reports which require confirmation, may be confirmed by special order before the expiration of the time limited for appealing therefrom, upon notice to, or consent of, all parties interested. An order confirming a report may be made by the Master in Chambers. Reports which do not Req.uire to be Confirmed.— All reports, ^^°^^^^°^^^' or certificates, of mere calculation, and of matters of opinion, which mation. do not require any farther order from the Court to give effect to, ■or sanction them, — except reports on sales, — do not require confirma. tion. Under this head are included certificates of compliance, or non-compliance, with any order of the Master, or of the Court, (but not certificates of insufficient compliance ; e.g., that accounts filed are insufficient in substance and form : Foster v. Morden, 9 P. R. 70. ) Certificates for commissions to take evidence ; certificates of scandal, or impertinence, in pleadings, or affidavits, referred to the Master ; reports appointing trustees, or committees : (but see Finhle v. Date, 7 P. R. 413 ; Foster v. Morden, supra ; ) reports on pissing the accounts of recsivirs, or committees ; reports comput- ing subsequent interest , or of apportionment of a fund on principles and in proportions, declared by the Court : reports approving of con . veyances ; and other'certificates and reports of a like description ; see Sm. Pr. 2nded., Vol. II., 357-8. No Appeal After Confirmation without Leave-— After a no appeal after report requiring confirmation has been confirmed, no appeal from it without leave ■will be entertained without leave first given, on special application ■ Thomson v. Luke, 10 Gr. 281. Effect of Confirmation. — After confirmation, the parties are con- Effect of confir- cluded by the report ; yet the Court iu its discretion may refuse ""'*""'• -to act upon it, and may refer the cause back to the Master, or require additional information to be furnished : Taylor v. Graven, 10 Gr. 488- Notwithstanding confirmation, clerical errors, and accidental slips > Clerical errors , , , , . , ■ . r^\, I, May be corrected in a report, may be corrected at any time upon motion m Cham bers notwithstanding. •without appeal: Morleij v. Matthew}, 12 Gr. 453; King v. Oonnor] 10 Gr. 364 ; Watson v. Moore, 1 Chy. Ch., R. 286 ; and where the error was apparent on the face of the report, the application was granted ex parte: Wliite v. Courtney, 1 Chy Ch., R. 11. But although the error be appirent, it does not follow that the proper correction is apparent, and the motion therefore is usuallv required to be O'.i notice, or consent : Simpson v. Ottawa, 2 Chy. Ch., R. 12. Mistakes iu a report, however, cannot be corrected by the Master rrnro motu, on any subsequent reference in the action : Crooks v. Street, 1 Chy Ch., R. 78; but on a reference bick upon an appeal. 184 Chancery Order 252. when the Court enunciates a principle, which is applicable to other parties, and other points, than those expressly concerned in the appeal, it is the duty of the Master so to apply that principle in all cases to which it is applicable in making his new report, even though it involve the readjustment of an account not appealed from : Deni- son V. Denisoii, 17 Gr. 306. Motion to refer Formerly, motions to refer a report back to the Master, were re- '""^'*- quired to be made in Court ; they could not be entertained in Cham- bers, even on consent ; Graham v. Godson, 2 Chy. Ch., R. 472 ; or though the Master certified that he had made a mistake : Be.ntly v. Jacl, 2 Chy. Ch. R. 473. But now that appeals from Masters' re- ports are required to be brought before a Judge in Chambers ; (see Ord. 642, Rule 8. G. 3 ;) it would seem that a motion to refer back a report may also be properly made to a Judge in Chambers ; Ross v. Stevenson, 7 P. K 126. But it would seem the Master [in Chambers has no jurisdiction to entertain such applications. Even though an R t «t- di appeal be had, the report will stand confirmed as to matters not cnnBimpd, .i.'i objected to by the appeal, and which the decision on the appeal does embraced ill' ^'>^ affect : Denison v. Venison, 17 Gr. 308 ; Ross v. Perrault, 13 Gr. appeiil. 206. And when the report is referred back, an appeal will not lie from the further report, for matters disposed of by the first report, and not objected to on the first appeal : Ross v. Perraidt, supra, or affected thereby • Denison v. Denison, 17 Gr. 308. Waiver of objeC' When notice of appeal is delivered, without leave, after a report is tion that appeal gQjjflj.jj|gf[ the delivery of notice of cross-appeal is a waiver of the to ) late. '^ ^ ^ objection : Lar/einv. Armstrong, 1 Chy. Ch., E. 31. Report not to '^^^ report should not be dated before the costs have been revised, be dated before where revision is necessary , Waddell v. McOoll, 14 Gr. 211. A re- costs rcTiSGd "^ madeinvaca'tim, port made in vacation without the consent of aU parties is irregular : is irregular. Anderson v. Thorpe, 12 Gr. 542 ; and as to parties who have no notice, it is a nullity : Fuller v. McLean, 8 P. E. 549 ; but parties having notice of the proceedings before the Master in vacation, must move against them, or they will be confirmed . Mitchell v. Mitchell, 22 Gr. 23. Confirmation of Report.— This Orc?e)- is modified by Ord. 642, CoiiflnnatiOD of „,„,-,„ report. Rltlr o- C S. A report requiring confirmation, does not now become absolute until thirty days from the making, and fourteen days from the filing thereof, have elapsed : lie Eaton, Bi/ers v. Woodburn, 8 P. K. 289. An application to extend the time for appealing from a report, even before confirmation, must be made on notice ; see Hamilton v. Tweed, 9 P. E. 448 ; as also an application for leave to appeal after the time has expired : Peterborough v. Ireton, before Proudfoot, J.,. Nov. nth, 1883. CHANCEitY Order 252. 135 Where it is desired to confirm a report before the expiration of the Special order month, a special application in Chambers may be made for that pur- report, when pose, but such applications are usually granted only where all parties "'*'l^- entitled to appeal consent. Filing Report. — The report must be tiled before an appeal will Filing report ; lie : Hayes V. Hayes, 8 P. E. 546. If it appoint a day for payment ''""^ ^°"'- of money, it should be filed before the day of payment ; Mills y.Diwv, 2 Ohy. Ch. E. 53; and confirmed : Mountain v. Porter, 1 Chy. Ch. E. 207, if it is a report requiring confirmation. No proceedings can properly be taken on a report until filed, either by the issue of pro- cess, or otherwise ; Beames' Ord. 293 ; Jellett v. Anderson, 8 P. Pi- 387; even though the report or certificate be one not requiring confir mation: lb ; but such reports can be acted on, immediately on filing, it is not necessary to wait fourteen days : Ee Taggie, 7 XJ. C. L. J. 293. Place of Filing. — The former practice of the Court of Chan- Where to bo eery required that » report should be filed in the office of the ^ Clerk of Eeoords and Writs, at Toronto, no matter where the suit might have been commenced. The same practice has been continued in the Chancery Division since the The Judicature Act. The Regis- trar of the Common Pleas Division, however, has declined to file a report in his office, when the action in which it was made, was com- menced in an outer office : see Eide S. C. 50. As the filing of the re- port in the proper office is an essential preliminary to its confirma- tion, it is important that there should be no mistake made in the place of filing. Leave to Appeal After Confirmation. — After a report is con- No appeal after &n T . If. .. 1 .1 J.. ■ /-.i confirmation ■med, leave to appeal from it may be granted on motion m Cham- without leave. bers. The application must be made on notice, or consent : Cor.ens v. McDougal, 1 Chy. Ch. E. 29 ; Cade v. Newhall, 1 Chy. Ch. E. 200: Peterboroughv. Ireton, before Proudfoot, J, 11th November, 1883; all parties are entitled to notice even though they be in the same in- terest as the party seeking to appeal . Larkin v. Armstrong, 1 Chy. Ch. E. 31. Where leave has been granted ex parte, the objection to the order may be taken on the appeal coming on for argument, Peterborough v. Ireton, supra. On such application it is necessary to what necessary account for the delay, and to show &prim& facie ground of appeal : ^p ^j^^l^"™ "^ Biclson V. Avery, 3 Chy. Ch. R. 222 ; Rowe v. Wert, 13 C. L. J. 32fi ; Caisse V. Burnham, 6P.R. 201 ; Dudley \. Berczy,S Chy. Ch. E. 81 ; Chard V. Meyers, 3 Chy. Ch. E 120. It is not absolutely necessary that the grounds of the proposed appeal, should be stated in the notice of motion for leave to appeal . Pomanesv Herns, 2 Chy. Ch. E. 363 ; but reasonable, and probable, grounds of appeal, must be shown by the affidavits . lb. . and a mere statement of the proposed grounds of appeal in the notice of motion will not suffice : De Blaquiere v. Arm- ■itrong, 9 C. L. J. 363 ; but costs unnecessarily incurred in making out a case on the merits were disallowed : Nash v. Clover, 6 P. E. 136 Chancery Order 253. Appeal from Master's report. Appeal when necessary. Master in Cham- 267. The Master in Chambers has jurisdiction to entertain the oers maj grant '' leave. application ; Bussel v. Bracken 3 Chy. Ch. R. 488. Leave to appeal was refused with costs, where it appeared that the object of the appeal, was to fix executors with interest upon a sum which they had invested, and upon which a loss had been incurred . Coates V. McGlashan, 2 Chy. Ch. R. 218. 253. An appeal shall lie to the Court, upon motion, at anj'- time aftei- the signing of the report until the expiration of fourteen days from the filing of the same, in respect of the finding of the Master upon any mat- ter presented in his office for his decision, without writ- ten objections or exceptions being previously taken. (29th June, 1861.) This Order is modified by Ofrf. 642, Bide S. O. 3. Appeal, when Necessary. — Ordinarilj', where the objection to the report is not manifest on its face, an appeal must be brought, un- less the report be a nullity as, e. g. , where made without notice in vacation: Fuller v. McLean, 8 P. R. 549 ; or under an invalid order : Queen v. Smith, 7 P. R. 429 ; Brown v. Bollard, 6 P. R. 113 ; where the report goes beyond the judgment, or order, of reference, the re- port as to such matters will " not be respected " by the Court : Beames' Ord. 23. and therefore no appeal as to such matters would seem necessary ; an incumbrancer claiming priority to the plaintiff, who is made a party as a subsequent incumbrancer, may either mo ve to set aside the order making him a party, or appeal from the report on the question of priority : McDonald v. Rodger, 9 Gr. 75, and see Montgomeri/ v. Shortis, 3 Chy. Ch. R. 69. Timefor Appealing.— An appeal from any report, ruling, or other determination, of any Master, may now be brought on for argument, on any day that a Judge may sit in Chambers, within one month from the date of such report, ruling, or other determination — or within such further time as a judge may think proper ; vacation is excluded from the computation of the month : Ord. 642. An appeal from a ruling of a Master, must be brought vrithiu the same time as is allowed for appealing from a report : Mitchell v. Mitchell, 22 Gr. 23. Notice of appeal, Notlce of Appeal, and Setting Down for Argument.— Seven for argument"'"' clear day's notice, of the appeal must be given to the opposite party; Hayes v. Hayes, 8 P. R. 546 ; and the appeal must be set down for argument, not later than the Saturday preceding the day on which it is to be argued : Ord 642 Rule S. 0. 3. In the Chancery Division, such appeals are heard on Monday ; and in the other Divisions on Tuesday, and Friday, in each week, vaca- tions excepted. Time for appeal- ing. Chancery Order 253. 137 Before notice of an appeal is given the report must be filed : Hayes « °''°«f J"™' ^ -V. Hayes, 8 P. R. 546. The notice of appeal should set out seriatim the grounds upon Notice of appeal which the appeal is brought, and should include all the grounds of grounds, objection intended to be urged — objections cannot be raised on an appeal from a further report, made in pursuance of an order to the Master to review his report, which might have been taken, but were not, on the appeal from the original report : Boss v. Perrault, 13 Or. 206. Who Entitled to Appeal.— Any person, having a substantial in- ^^^ entitled to terest in the question involved in an appeal, is entitled to appeal ; appeal, but persons having no interest in the subject of appeal, cannot appeal, interest, or who «ven though the report be erroneous : Thompson v. Luke, 10 Gr. 281 ; ^^.^j^JJ"''!'^'? McCargar v. McKinnon, 17 Gr. 525 ; neither will an appeal lie from ruling, cannot a Master's ruling, or direction, by a party who has complied with it, ^PP°* • even though it be to escape commitment for disobedience : Mitchell v. Mitchell, 22 Gr., at p. 24; neither will an appeal lie, where the amount involved is of trifling amount e. g., where not more than $10 jfo appeal where was in question, an appeal was dismissed : McQueen v. McQueen, 2 i'."jjigiiii.°^° Chy. Oh. E,. 344. Appeals might formerly be brought from a Master's certificate of taxation : Orahame v. Aiiderson, 2 Chy. Ch. E. 303 ; Appeal may be Re Ponton, 15 Gr. 355 ; from a Master's ruling as to any point, raised \>^<^ f™"^ t?=t»- on a taxation of costs : Stinson v. Martin, 2 Chy. Ch. 86 ; but now, officer, there is no appeal to a Judge direct from a local ofBcer's taxation, but his taxation must be first revised by one of the Taxing Officers in Toronto, from whom an appeal can be had to a Judge : Crowe v. Steeper, 2 C. L. T. 83 ; McOannon v. Clarice, 19 C. L. J. 236 ; Gage V. Canada Publishing Co., 19 0. L. J. 175; 3 0. L. T. 267; Tor- rance V. Torrance, 9 P. R. 271. An appeal may also be brought, before the Master has made his report, from his ruling as to the j^d ft-om admissibility of evidence : McDonald y. Wriqht, 12 Gr. 552 ; or "f '|*^'8™1>"S ^ ^ " ' ' a« to admipsi- upon his finding as to the principle upon which an account should bility of evidence; be taken: see Court v. Holland, 29 Gr. 19; or by a creditor from °''|,?'|J"^J|,y°°j the Master's ruling, disallowing his claim : Wood v. Brett, 9 Gr. to be taken ; ° ° or on disallow- 452, and he need not wait for a general report, but may at once ob- ance of a claim. tain a certificate of disallowance and appeal therefrom : Re Clagett, Fordham v. Clagett, 20 Ch. D. 637 ; 46 L. T. N. S. 70. ■WTiere a cause had been referred to a Master as an arbitrator, by nq appeal from a consent decree, which provided that "either party should be at*"''*^''*- liberty to appeal against the award in the same manner and to the same extent that a report may be appealed from," it was held never- theless, that an appeal from the award could not be entertained ; Burns v. Chamherlln, 25 Gr. 148. Where the order directing the reference was made without jurisdiction, the Court refused to enter- 18 138 Chain'C'ery Order 253. tain any appeal from a report made thereunder : Queen v. Smith, 7 , P. E. 429 ; Brown v. Bollard, 6 P. E. 113. Matters not Ob- When on an appeal from a Master's report a, reference back to jected to on first . , . , , ,, ,i i i_ j c i.\. appeal, not ap- review the report is ordered, the appellant cannot appeal trom the subLequent " further report as to matters disposed of by the first report, and not objected to on the first appeal : Moss v. Perrault, 13 Gr. 206. Hearing of ap- peal. On questions of fact; credibility or weight of evi' dence; Maiiter, who has seen witnesses, not readily over- rulei. But if he have not Been wit- nesses, Judge, on appeal, will exercise his own judgment. Hearing of Appeal.— Appeals from the Master's ruling as to the regularity of proceedings in hia office, in point of form, will not be readily allowed, even though the Court be of opinion that he might have properly taken an opposite view : Sculthorpe v. Burn, 12 Gr. 427. On matters of fact decided by the Master who has had the wit- ; nesses before him, the Judge will difi'er from the Master with great hesitation, and only when it is manifest that he has fallen into error : Coldwell v. Hall, 9 Gr. at p. 115 : and the Judge will not in general interfere with the decision of the Master as to the weight of evidence, and as to the relative credibility of witnesses whose evi- dence has been taken before him, viva voce : Day v. Brown, 18 Gr. 681 ; Waddell v. Smyth, 3 Ohy. Oh. E. 412. But if it can be shown, that there is not only a balance of direct testimony, but also corrobora- tive circumstances pointing strongly against the Master's conclusion, the Judge on appeal may review the evidence, and reverse his find- ing on a question of fact : Ghard v. Meyers, 19 Gr 358 ; Armstrong V. Gage, 25 Gr. 1 ; Morrison v. Robinson, 19 Gr. 480. When the Mastei determines the question without seeing the witnesses, the Judge will, in such a case, be less trammelled by the Master's finding, and will dispose of the question upon his own judgment as to the weight of evidence : Fa-ucett v. Burwell, 27 Gr. 445. Grounds of ap- Order Oil Appeal. — The order on appeal should always recite Fn ord°er'!° ^""^"^ **>« grounds of the appeal : Downey v. Roaf, 6 P. E. 89. Where the report is varied it would seem that it is not the proper practice to make any actual alteration in the original : Fox v. Bear- block, 45 L. T. N. S. 469 ; 17 Oh. D. 429; 46 L. T. N. S. 145 ; nor where the alteration is simple, need it be referred back to the Master to alter : Teeter v. St. John, 10 Gr. 85, the order on the appeal specify- ing the alteration made, being sufficient : lb. Where the report is referred back, and it is not intended that further evidence should be received, the order must contain a direc- tion to that effect ; Morley v. Matthews, 12 Gr. 453 ; 3 0. L. J. 21. Reference back. — When a report is referred back, the Master is at hberty, as of course, to receive further evidence, unless the Judge otherwise orders, or the reference back is expressed to be for a purpose on which further evidence could not be material : Morley Variation of re- port. On reference back, if further evidence not to be received, it should be so stated. Further evi- dence, when receivable. Chancery Orders 254 — 255. 139' V. Matthews, 12 Gr. 453. Where the reference back is to ascertain a particular fact, the Master cannot open other matters in his report not objected to on appeal : Williams v. Haun, 10 Gr. 553. Nor on a. reference back can the Master entertain a claim not previously made before him, unless specially ordered so to do : Homanes v. Herns, 22 Gr. 469. Costs—See Ord. 248, 320, and notes. Costs of Appeal. 254. Any party affected bj' a report may file the Any party may same, or a duplicate thereof, and the filing of a dupli- dupitelte!' " cate shall have the same effect as the filing of the report. (29th June, 1861.) The report, or certificate, must be filed before an appeal can be ^^p^^^ n,„gt be had therefrom : Hayes v. Hayes, 8 P. E,. 546 ; or before any process ^'ed before ap- can issue thereon : Jellett v. Andersm, 8 P. E. 387. And where it Ft"'ciirbe''°ea-° appoints a time for the payment of money it should be filed before f'^'ced. the day of payment : Mills v. Dixon, 2 Chy. Oh. R. 53 ; and be con- firmed where necessary : Mountain v. Porter, 1 Chy. Ch. R. 207. As to delay in filing a duplicate report by n. party intending to appeal see Caisse v. Bumham, 6 P. R. 201. 255. Where the Master is directed to appoint money payment of to be paid at some time and place, he is to appoint the bankyhoVto be same to be paid into some Bank at its head office, or at port. " some branch or agency office of such Bank, to the joint credit of the party to whom the same is made payable, and ot the Registrar of the Court ; the party to whom the same is made payable to name the Bank into which he desires the same to be paid, and the Master to name the place for such payment. (29th June, 1861.) The word "Registrar" in this Order was changed to " Account- ujo^ey paid into- ant" \>y Ord. 569: and the word "Accountant" was subsequently ''™'''°J°'°' „ , 1 J credit of party changed to "Referee in Chambers hy Ord. 626. The latter office and ofScer of is now practically abolished. Under the circumstances it is perhaps ''™''- advisable that the Registrar of the Division in which the action is pending, should be named. This Order does not relate to the payment of money into Court (as to that, see Ord. 352), but is intended to provide for the payment Reason for. of money in cases where the payee is required to do some act, as a condition of his receiving the money ; c. g., in specific performance actions where the vendor is required to execute a conveyance ; or in 140 Chancery Orders 256—257. in mortgage actions, where the mortgagee, or incumbrancers, are required to release and discharge their incumbrances, &o. iHowpaid out. Money paid into a bank under this Order, is paid out on a joint cheque of the officer of the Court and of the party to whose credit it is paid in. The cheque will be signed by the officer either upon an order, obtained for that purpose, being produced, or without order, upon filing the written consent of the solicitor of the party paying the money in. If the money be paid in to the sole credit of the party entitled under Ord. 256, he may draw it out at his pleasure. Order for when Where the party paying money in, refuses to consent to its pay- necessary, ment out to the party entitled, the latter may move in Chambers for an order to the officer to sign the cheque : Bernard v. Alley, 2 Chy. Ch. R 91 ; Weeks v. Stourton. 1 1 Jur. N. S. 278. Although the refusal to consent appears to have been without reason, the ap- plicant in Bernard v. Alley was refused his costs. The application must be made on notice : Totten v. Mclntyre, 2 Chy. Ch. R. 462. Report should be -^ report appointing the payment of money, should be filed before filed before day the day named for the payment : Mills v. Dixon, 2 Chy. Ch. E. 53 ; appointed for '' ^ "^ . . „ . payment, and confirmed, where the report is one requiring confirmation : Mountain v. Porter, 1 Ch. E. 207. If the bank closes its office on or before the day named for pay- ment, and default be made, an application must be made in Cham- bers to appoint a new day and to name another bank, and the order must be served : King v, Connor, 1 Chy. Oh. E. 274. Parly may pay' 256- Where money is paid into a Bank, in pursu- mooey in to the <■ i • i i. ii, i. • * sole credit of the ance 01 such appointment, the party paying, may pay thereto or to the the same either to the credit of the party to whom the joint cred tof -,.. t f i such party and same IS made payable, or to the lomt credit of the thelRegietrar. tit-.- t -i^ i party and the Registrar ; and it the same be paid to the , sole credit of the party, such party shall be entitled to receive the same without the order of the Court. (29th June, 1861.) The word " Accountant " was substituted for "Eegistrar" by Ord. 569. And the word " Accountant " was subsequently changed to " Eeferee in Chambers" by Ord. 626. The latter office is now practically abolished ; see note to Ord. 255. Default in pay- 257. Where dcfault is made in the payment of money .Sfled?™'""' appointed to be paid into a Bank, the certificate of the Cashier, Manager, or Agentof the Bank, where the same Chancery Orders 257 — 258. 14'1 is made payable, or of the like Bank oiEcer, shall be sufScient evidence of default. Where the affidavit of the party entitled to receive the same is by the present practice required, the same shall still be necessary. (29th June, 1861.) The certificate should be signed by the cashier, manager, or agent. Certificate of or like oflBcer. The certificate of an accountant in the bank is not how to be^sign'ed.- sufficient : Campbell v. Garrett, 1 Chy. Ch. E. 255. A certificate of default should state that the money was not paid before, as well as on, or since, the day appointed : Farrelly. Stokes, 1 Ohy. Ch. R., 201. XIX.— AFFIDA.VITS. 958 All affidavits are to be taken and expressed in Afflaavits. how ** . . to be drawn. the first person of the deponent, and his name at the commencement of the affidavit is to be written in full, and not designated by any initial letter merely ; and the jurat may be in the form or to the effect set forth in schedule M. hereunder written. No costs are to be allowed in respect of an affidavit which has not been drawn in conformity with this order. (3rd June, 1853 ; Ord. 40, s. 6.) The practice as to affidavits is now regulated by Rules S. G. 284, Affidavits, prac- 453, and 464^470 ; and see Ord. 68, ante. The Mules S. C. cover ernedby Ss the principal matters provided for in this Order. They do not, ^^^^^284, 463. however, require the name of the deponent to be written in full, nor do they prescribe a form of jurat. This Order therefore as to these two particulars is still in force. See also Rules of Q. B. & C. P. 112, 114-118, post. An affidavit should entitled in the c: use or matter in which it is style of cause in to be used. The shortened style of A. B. and others, plaintiflFs, and affldavits. 0. J. and others, defendants, may be used, Ord. 509 ; but not "Brown v. Jones." Affidavits erroneously entitled have been allowed to be taken off Erroneously en- the files, and resworn without a fresh stamp : Pearson v. Wilcox, 10 reswcr""^ Ha. app. XXXV. ; Hawes v. Bamford, 9 Sim. 653. In affidavits made by parties to the cause it is sufficient to describe Affidavits by the deponent as the abovementioned plaintiff, or defendant, without ^^^ *" ^^ specifying any residence, or other addition : Crockeit v. BislUon, 2 Madd. 446. And the same rule prevailed at common law : Poole v. 142 Chancery Order 258. Pembrey, 1 Dowl. P. C. 693 ; Brooha v. Farlar, 5 Dowl. P. C. 361 ; Lyman v. Brethron, 2 U. 0. Cham. K. 108 ; Ewing v. Lochhart, 3 U. C. E. 248. . Affidavits re- The Court haa sometimes received affidavits sworn abroad, al- "riSularT^" though drawn in the third person : Re Husband, 12 L. T. N. S. drawn. 303 ; and see Dryden v. Frost, 8 Sim. 380. And an affidavit without the signature of the deponent was received : Re Howard, 9 L. R. C. P. 347. But see contra, Anderson v. Stather, 9 Jur. 1085. But omitting An affidavit omitting the words "make oath" will be rejected : ra°h"re^ ' •\ n ^ r^ orother proceed- the attendance 01 a witness before the Court, or before a Master, or an Examiner, for the purpose of using his evidence upon anj' motion, petition, or other proceed- ing before the Court. (3rd June, 1853 ; Ord. 40, s. 7.) Chancery Order 266. 147 " The Court, or a Judge, may, in any cause or matter, where it shall ■B'^^ S.c. 286. appear necessary for the purposes of justice, make any (sic) order for the examination upon oath before any officer of the Court, or any other person or persons, and at any place, of any witness or person, and may order any deposition so taken to be filed in the Court, and may empower any party to any such cause or matter to give such deposi- tion in evidence therein, on such terms, if any, as the Court or Judge may direct " : Snle S. C. 285. It [has been ruled by the learned Master in Chambers, that Ord. ord. 266 said to 266 is superseded, by i?«?e.?. O. 285, so faraa motions in Chambers ^^ ™P«™*|pJ' are concerned : Monaglian v. Dobbin, 18 G. L. J. 180, 2 C. L. T. Sed quaere. 260 ; and see Taylor &, Ewart, 311. A contrary opinion was previ- ously expressed by the writer ; see Holmested's Manl. Pr. 203 : and in England it has been held by the Court of Appeal that the analagous English Ord. xxxvii, r. 4, from which our Sale S. C, 285 is taken, does not supersede the provisions of 15 & 16 Vict. c. 86 s. 41, from ■which Ord. 266 is taken : Raymond v. Tapson, 48 L. T. N. S. 403. If the ruling in Mone,ghan v. Dobbin be correct, no examination of witnesses in support of, or in opposition to, any motion, petition, or .other proceeding, can now be had without an order for that jjurpose being first obtained. And it would seem doubtful whether witnesses can any longer be examined upon a reference before a Master, without an order being first obtained. A subpoena for the examination of a witness, dated prior to the gu^poena date time at which the party issuing the same was entitled to examine the of. witness, was held to be irregular : McMarray v. Grand Trunk By. Co., 3 Chy. Ch. R. 130. Depositions taken under Ord. 268, when no motion was pending, were irregular, and could not be read : Stovel v. Coles, 3 Chy. Ch. E. 362. The party required to be examined was entitled to reasonable, but Notice of exam- not necessarily to 4S hours' notice : North W/ieal Exmouili Mining Co., 31 Beav. 628 ; 8 Jur. N. S. 1168 ; unless he had no solicitor, in which case he was held entitled to 48 hours' notice : Watson v. Ham, 1 Chy. Ch. R. 293. A witness, whether a party, or stranger, to the cause, who was re- witness fees to quired to attend for examination, was entitled to be paid ordinary ^ ?*'*■ witness fees, and might refuse to attend, or if attending might refuse to be sworn, until paid : Brocas v. Lloyd, 23 Beav. 129 ; Wiltshire v. Marshall, VV. N. (66) 80 ; Davey v. Durrani, 24 Beav. 493, and see Bobins V. Carson, 2 Chy. Ch. E. 343. Where the witness, or party, required to be examined in support Examination of of a motion is out of the jurisdiction, an order for a commission may Jari^jct'onf be obtained as soon as the notice of motion is served : Farrell v. 148 Chancery Order 267—268. Cruikshanh, 1 Cliy. Ch. E. 12 ; or if a resident in Quebec a subpoena may be ordered to issue under C. S. C. c. 79, s. 4 : Moffalt v. Pren- tice, 6 P. R. 33 ; McKerchie v. Montgomenj, 1 Chy. Ch. R. 225. Default of wit- Default of Witness.— The certificate of default should show ished. "" ''""' *'*** *h® witness had been duly subpoenaed, a statement in the cer- tificate, that evidence of the service had been produced, is insufficient : Waddle v. McGinty, 2Ghy. Ch. R 442 ; and see Sutherland v; Rogers,- lb., 191. A witness failing to attend was liable to be committed for default. A witness who attended, but refused to answer proper questions, might, on motion, be ordered to attend again and submit to answer the questions at his own expense, or in default be committed. A motion to commit must now be made before a Judge : Keefe v. Ward, 18 C. L. J. 166 ; 2 C. L. T. 260. A witness attending for examination, is not bound to wait more than half an hour, unless notified that his examination is to be pro- ceeded with ; Perks v. Stotiart, 1 N. li. 563. Notice of ex ami- 267- Fortj-eight hours notice of the examination IS to be given to the opposite party, or parties, and the cross-examination, in such case, is to follow imme- diately upon the examination, and is not to be deferred to any future time. (3d June, 1853 ; Ord. 40, s. 8.) How f r Ord 267 Whether or not this Order is in force, depends apparently on in force. whether or not Ord. 266 is in force, as to which point, see note to that Order. Notice to be Tlie notice referred to in this Order is to be served on the opposite- served, party. The witness to be examined is not necessarily entitled to forty-eight hours' notice, but onlj to reasonable notice according to circumstances: North Wheal Exmouth Mining Co., 31 Beav. 628 ;■ where the witness is also a party to the action, the forty-eight hours' notice should be served on his solicitor, if he have one, and if not, then upon the party himself : Watson v. Ham, 1 Chy. Ch. E. 293. Where the evidence was taken abroad before a Special Examiner, this Order was not strictly applied : De Britov. Hillel, 15 L. E. lOq. 213, Ord. 268 super- Older 268 is superseded by Rule S. C. 283, which is to the same- peded b> Rule effect. " Upon any motion, petition, or summons, evidence may be given affidavits, are by affidavit; but any person having made an affidavit to be used, or examination'' which shall be used on any motion, petition or other proceeding before the Court, shall be bound to attend for the purpose of being cross-- examined, on being served with a writ of subpoena ad testificandum,. Chancery Ordeks 269—277. J 19 but the Court nevertheless may act on the evidence before it at the time, and may make such interim order, or otherwise, as appears necessary to meet the justice of the case." Rule 8. 0. 28.S. When the proceeding for which the affidavit has been filed has no cross-examin- been disposed of, the rieht of cross-examination is gone : Catholic ^'"','? ""?,'' P'""', ^ ' o c ceeaing disponed Printing Co. v. Wiman, 11 W. E. 399 ; Felan v. McGill, .3 Chy. of. ■Ch. R. 56 ; Clendiiming v. Varcoe, 7 P. R. 61. Deponents making affidavits in reply, are liable to cross-examina- Cross-examma- ^ ® ^ '" tionOQ affldiivits tion : Re Foster, 6 P. R. 95 : 9 C. L. J 313. in reply. A party cannot withdraw an affidavit which he has given notice of Affidavit can not reading, so as to avoid a cross-examination of the deponent : Clarice avoMcrosJ-Ixam" V. Law, 2 K. & J. 28 ; Pike v. DicUmon, 21 W. R. 86-2 ; W. JST. ination. ' (73) 178; Re Quartz Mininq Co., 47 L. T. N. S. 644; 21 Ch. D. witness not eu- 642. The party cross-examined cannot insist on the pissage in liis "^ 1* "^"t ''"^I affidavit being read, or shown, to him, before he answers : Gwynne v. Watney, 31 L. T. 0. S. 231. As to expense of producing witness for cross-examination : see Knight v. Gardiner, 49 L. T. N. S. 94 ; W. N. (83) 152 ; 19 C. L. J. 273, Rule 8. C. 304. 269. Forty-eiglit hours' notice of the cross-examin- hCura'^Mtte to ation is to be given to the party on whose behalf such exaSInatton."''' affidavit was filed, or to the party intending to use the same (Srd June, 1853 ; Ord. 40, s. 9.) This Order would seem to be still in force and applicable to ex- aminations had under Rule S. C. 283. See note to Ord. 267. Orders 270-272 regulated the practice on motions for decree, and °'''*' ^'''■2'2- are superseded bj Rales S.C. 211, 315, 318-324. Orders 273-276 regulated the practice on motions to dismiss for O"'''- 273-27G. want of prosecution, and are superseded by Rules S. C. 203, 255 ; but see Buclce v. Murray, 19 G. L. J. 233. 277. A notice of motion to set aside any proceeding irregularities. for irregularity, must specify clearly the irregularity complained of. (9th May, 1862.) The practice laid down by this Order is the same as formerly Party moving to prevailed at law under the Rule of Practice of 1856, No. 107. ceeding for irreg- A party moving against an irregularity must himself be regular, "j"'^^™"^"''' and is not entitled to any indulgence : Scott v. Burnham, 3 Chy. Ch. move promptly, R. 399; Wateromv. Farran, 6 P. R. 31 ; Poole v. Poole., 2 Chy. f^^il'X! 'of "^ Ch. E. 379 ; Donelly v. Jones, 4 Chy. Ch. R. 48 ; he must move making demand promptly: Miller v. Miller, 9 U. C. L. J. 132 ; and before taking a fresh step in the action : Manning v. Birely, 2 C. L. J. N. S. 331 : Larhin v. Armstrong, 1 Chy. Ch. R. 31 ; or making any de- mand respecting the alleged irregular proceedings which would put 150 Chancery Orders. Receiver- Receivers, how- appointed. Daty of Receiver, the opposite party to expense : Carpenter v. Hamilton, 2 Chy. Ch, E. 282 ; Bennett V. O'Meara, 2 Chy. Ch. R. 167 ; or he may be held to have waived the irregularity. Proceedings that are merely irregular are valid until set aside, but a nullity has no efifeot whatever ; Fuller v. McLean, 8 P. K. 549. XXL— RECEIVERS. The appointment of Receivers, which was formerly exclusively within the jurisdiction of the Court of Chancery, may now be made by any Division of the High Court, in any case in which it shall ap- pear to the Court to be just, or convenient : •/. A. s. 18, ss. 8. A Receiver is an indifferen person between the parties, appointed by the Court to collect and receive the rents, and profits, of land, or the produce of persona] estate, or to take the care and custody of any other property which it does not seem proper to the Court that either of the litigants should do, either by reason of the controversy existing between them, or by reason of personal disability on the part of the party legally entitled, e.g., infancy, or lunacy. Where the appointment of a receiver is a substantial part of the relief sought by a plaintiff, he should indorse a claim to that effect on his writ : Colebourne v. Colebourne, I Oh. D. 690. The appointment of a Receiver operates as an injunction, and neither of' the litigants can receive the money, or property, com- mitted to a Receiver, without a contempt of Court, and it is not necessary in the order appointing a Receiver to grant an injunction in terms : Kerr on Receivers, 8. As to whether I* lias been said that an interim Receiver is superseded by the supwSdfd by™"^ judgment subsequently given in the action, unless he be expressly con- judgment quaere, tinued by it ; Kerr on Receivers, 2nd ed. 186, Reeves v. Neville, 10 W. E. 335 : Taylor's Ord. 274; Gibson v. Montfort, 1 Ves. Sr. 485 ; but the authorities cited do not appear to bear out the proposition ; see Seton, 412, The question would appear to depend on the terms of the order appointing the Receiver; if appointed "until the trial," then it would seem clear, that unless continued by the judgment pronounced at the trial, he would be superseded by it ; but if ap- pointed generally without any limitation as to time, or " untU the Court make order to the contrary," then it would seem that he would not necessarily be superseded by the judgment subsequently pronounced, even though not expressly continued by it. Receiver ; when Appointed :— Infants. - Claim for, should be indorsed on writ. Appointment operate? as in- junction. Receiver, when appointed. Infants' estate. -A receiver will be appointed of an infant's estate in a proper case, as where the father is of bad character or insolvent, and there is danger of loss : Kiffin v. Kiffin, cited 1 P. W. 704 ; Ex parte Moimifort, 15 Ves, 449 h, ; i?e CormkJcs, 2 Ir. Eq. 264; or Chancery Orders. 151 there is no testamentary guardian, or one who declines to act : Hides Receiver. V. JBicks, 3 Atk. 273 ; Bridges v. Hales, Mos. Ill; or the guardian is misconducting himself : Beaufort v. Berty, 1 P. W. 704, and see Dillon V. Lord ilountcashel, 4 Bro. P. C. 306. Lunatics. — A Receiver will be appointed over a lunatic's estate, LunaUcs' estates where no person will act as committee, or where the committee is infirm, or the management of the estate onerous : Kerr' on Re- ceivers, 78. Executors, and Trustees. — The Court will in a. proper case ap- a, against eieo- point a receiver to act iu place of an executor, or trustee, but it will "'"""s, and trus- not do so on slight grounds. Where fraud is charged a receiver will be appointed ; Vernon v. Kinzie, 2 0. S. 40, and see Meacham v. Draper, 2 Gr. 316 ; or iu case of misconduct or improper manage- ment, or where there is danger of loss o£ the trust property : J\Jid- dleton V. Dodswell, 13 Ves. 266 ; H. v. //., 1 Ch. D. 276 ; Colebourne V. Colebourne, lb. 690 ; or is wasting the assets : Keene v. Riley, 3 Mer. 436 ; or that being a sole executor, or trustee, he is insolvent : Harrold v. Wallis, 9 Gr. 443 ; Be Johnson, 1 L. R. Chy. 325 ; Gaw- thorpe V. Gawthorpe, W. N. (78) 91 ; although mere poverty is no ground for the appointment : Anon, 1 2 Ves. 4 ; but if coupled with bad character it may be : Everett v. Prythergh, 12 Sim. 368 ; or if being a female, she has married a man in necessitous circumstances, the cestuis que trust being infants : Dillon v. Lord Mountcashel, 4 Bro. P. C. 306. A receiver may also be granted before probate, or adminis- tration, to prevent waste or spoliation, and to provide for the collec- tion of assets pending litigation as to the right to administration ; Atkinson v. Henslmw, 2 V. &; B. 85 ; Ball v. Oliver, lb. 96 . Jones v. Godrich, 4 Jur. 98 ; Wood v. Hitchings, 2 Beav. 289 ; 4 Jur. 858 ; King V. King, 6 Ves. 172 ; but see K^iight v. Duplessis, 1 Ves. Sr. 324 , but to warrant the appointment there must in general be shown to be litigation pending, or threatened, iu the Surrogate Court : Jones V. Jones, 3 Mer. 174 ; Jones v. Frost, 3 Madd. 1 ; Jac. 466 ; Marr V. Liltlewood, 2 My. & Gr. 458 ; Parkin v. Seddons, 16 L. R. Eq. 36 ; or that there is souie difficulty in obtaining administration : Overing- tun V. Ward, 34 Beav. 175. Mortgagee. — Formerly a receiver would not be granted at the Reueivcr when instance of a mortgagee entitled to the legal estate : Berney v. Sewell, erantcd on ap- 1 J. &. W. 648 ; except under special circumstances .• See Kerr on sgninsi, mort- Receivers, 29-30, 34. Nor against a prior mortgagee in possession ^*^j^ '^^ at the instance of a subsequent incumbrancer, so long as anything remained due on the prior mortgage. And the Court would only act on the prior mortgagee's own admission that he had been paid off, or his refusal to accept what was due to him : Berney v. Sewell, 1 J. & \V. 649; Hiles v. Moore, 15 Beav. 180. But where the prior 152 Chancery Oeders. BeoeiTer. mortgagee in possession had himself acquired the equity of redemp- tion, and it appeared he had received rents and profits more than sufficient to pay off his mortgage, a receiver might be granted : Steinhoffv. Brown, 11 Gr. 114. And now a receiver may be appointed at the instance of mortgagee of the legal estate, if it shall seem to the Court to be just or convenient so to do : Pease v. Fletcher, 1 Ch. D. 273 ; but see North London Railway Co. v. Great Northern Rail- way Co.. 48 L. T. N. S. 695. Whenonapplica- An equitable mortgagee may, after default, have a receiver as mortgage. against a mortgagor in possession "without prejudice" to the rights of any prior mortgagee : Aikins v. Blain, 13 Gr. 646 ; Kerr on Receivers, 35. The Court would not try on an interlocutory motion, the question whether a prior mortgagee in possession had been paid oflf, when he himself distinctly swore that there was some- thing due ; but his affidavit as to the amount due was required to be specific. If vague, or his accounts %vere so negligently kept that he could not speak positively, a receiver might be appointed : Rowe V. Wood, 2 J. & W. 558 ; Hiles v. Moore, 15 Beav. 180 Godrington V. Parker, 16 Ves. 469. Interim Receiver CREDITORS. — An injunction to restrain a debtor from alienating when granted on '' ^ application of his property pendente lite, cannot lu general be obtained by a simple ere 1 ora. contract creditor suing to recover his debt, where the debtor is in esse ; nor under such circumstances could a receiver be granted : National Provincial Bank of England v. Thomas, 24 W. R. 1013 ; Owen V. ffoman, 4 H. L. C. 1036 ; Robinson v. Pickering, 50 L. J. C. A. 527 ; Hepburn v. Patton, 26 Gr. 587 ; not even though the debtor be a public company : McOall v. Canada Farmers' Mutual Insurance Co., 18 0. L. .1. 117 ; Milts v. Northern Railway of Buenos Ayres Co. , 5 L. R. Chy. 621 ; not even though the creditor be an unpaid vendor, and the company admit their liability : Latimer v. Aylesbury and, Bedford Railway Co., 9 Ch. D. 385. But when the debtor is dead, a receiver may be obtained by a simple contract creditor against the personal representative, or de- visee, wasting the assets of the deceased : see lieene v. Riley, 3 Mer. 436 ; and of the realty when it appears the personal estate is insufficient : Jones v. Pugh, 8 Ves. 71 ; Chcdk v. Raine, 13 Jur. 981 . Kerr on Receivers, 40. After judgment ^^^ ^ creditor who has obtained judgment may apply for a re- ""5^j^j'^™"y •>* ceiver by way of equitable execution, as against property of the debtor, which could not be reached by a writ of execution : Anglo- Italian Bank v. Davies, 9 Chy. D. 275 ; Smith v. Hurst, 1 Coll. 705 ; 10 Ha. 48 . Wells v. Kilpin, 18 L. E. Eq. 298 : Tillett v. Pearson, 43 L. J. Chy. 93. Formerly, in such cases it was necessary, before applying for a receiver, to sue out a writ of execution ; but it would seem now that if the property cannot be reached by the writ, Chancery Orders. 153 such a preliminary is not necessary : Ex parte Evans, J 3 Ghy. D. Receiver. 259. Although an interim receiver cannot, in general, be granted in Against Kail- favour o£ a creditor against a debtor corm^nnj : McCall v. Canada'''"'^ ompany. Farmers' Mutual Insurance Co. 18 C. L. J. 117, it is sometimes the only rehef that can be awarded, after judgment has been obtained. Thus, neither an execution creditor, nor u, mortgagee, of a railway company, can enforce payment of his demand, by sale, or foreclosure, of the railway ; he can only do so, by procuring a receiver and manager of the undertaking to be appointed : Gait v. Erie A Xiaqara ^ Railway Co. 14 Gr. 499 ; Peto v. Wetland Railway Co., 9 Gr. 455, affirmed on rehearing, 16th Feb. 1864; Brantford V. Ch-and River Navigation Co., 8 Gr. 246 ; and see Breeze y. Mid- land Raihmy Co., 26 Gr. 225, (where the plaintiff claimed a me- chanic's lien). Kerr on Receivers, 46-7, 50. Where u, receiver is appointed at the instance of a judgment Receiver ap- .. , .,. ,,. p. . pointed withotit creditor, it is without prejudice to the claims ot prior mortgagees, prejudiceto prior if any: Leggv. Mathiescn, 2 Giff. 71 ; Wildy v: Mid-Hants Rail-'^°'^S^S^o- way Co., 16 W. R. 409; Potts v. Warwick d; B. C. Co., Kay 145. Partners. — The Court in granting a receiver of partnership pro- Keceiver when perty, thereby takes the affairs of the partnership out of the hands partnership of all the partners, and entrusts them to a receiver or manager of °*'^'- its own appointment ; and -n hile an injunction only restrains one or more of the partners from doing what may be complained of, the appointment of a receiver excludes all alike from taking part in the management of the concern : Hall v. Hall, 3 Mc. & G. 86. It, therefore, does not follow that the Court will grant a receiver pen- dente lite, in everj"" case where it would grant an injunction. When a dissolution is neither sought, nor is absolutely necessary. Not appointed a receiver pendente lite will not in general be granted of a "going con- going concern, cern " ■ Goodman v. Whitcomb, 1 J. & W. 589 ; Roberts v. Eberhardt, Kay 148 ; Hall v. Hall supra ; unless there is danger of the busi- ness being destroyed, or the assets misapplied in the meantime ; or unless one partner is miscond acting himself ; e.g., by colluding with debtors of the firm : Estwich v. Conningsby, 1 Vern. 118 ; or carry- ing on a separate trade with the partnership property • Harding v. Glover, 18 Ves. 281 ; or is wrongfully excluding the plaintiff from the management : Wilson v. Greenwood, 1 Sw. 481 ; Goodman v. Whitcomb, 1 J. & W. 592 ; Rowe v. Wood, 2 J. & W. 558 ; Const v. Harris, T. & R. -'i25 ; Prentiss v. Brennan, 1 Gr. 371 ; Bilton v. Blakely, 6 Gr. 575 ; Steele v. Grossmith, 19 Gr. 141. Where a partnership is alleged on one side and denied on the Exceptions to other, usually a receiver is appointed until that question has been '^"'''■ 20 154 Chancery Ohdek 278. Receiver. determinecl : Peacock v. Peacock, 16 Ves. 49 ; Chapman v. Beach, IJ. & W. 504 n ; Fairhurn v. Pearston, 2 Mc. & G. 144. Receiver, whon TENANTS IN Common. — A receiver lias been appointed m u. afafi'co-tMant partition action pewlente lite, although there has been no exclusion in common. ^^y ^ny of the co-owners Porter v. Lopef:, 7 Ch. D. 3.58. Formerly a case of destructive waste, or gross exclusion, was necessary to be made to warrant the appointment of ». receiver in such case : Ken- on Receivers, 79 ; but see Gaskin v. Balls, 13 Ch. D. 31 3, per Thesiger, L. J. : and North London R. W. Co. v. Great Northern H. W. Co., 11 Q. B. D. 30; 48 L. T. N. S. 695, whore it was held the jurisdiction to grant injunctions, has not been extended by The 'Judicature Act. doranTpur"" VENDOR AND PURCHASER.— In actions for specific performance, a «haser. receiver praA'n^c tee may, in a proper case, be appointed; Kennedrj ■ . V. Lee, 3 Mer. 448 ; Hall v. Jenldnson, 2 V. & B. 125 : McLeod v. Phelpx, 2 Jur. 91)2; and see Taylor v. Echersleii, 2 Ch. D. 302 ; 5 Ch. D. 740, a case of chattels ; or in actions to set aside conveyances as obtained by fraud : Stillwdl v. Wilkins, Jac. 282 ; Hugnenin ■v,,Base- ley, 13 Ves. 107 : 2 White & Tud. Lg. Cases, 547. "^TOorra "'''"' Legal Title. — Formerly the Court would not, except under special against holder of circumstances, or in cases covered by B. S. 0. c. 40, s. 39, appoint a "^^ ' ''' receiver against a person in possession of lands claiming under a legal title ; but since The Judicature Act, it has been held that the juris- diction is extended, and that a receiver may be appointed even as against a person claiming a legal title, wherever the Court may think it "just or convenient:" Real and Personal Advance Co. v. ilcCarthy, 27 W. R. 70S ; but see North Lomlon R. W. Co. v. Great Northern R. W. Co., 11 Q. B. D. 30 ; 48 L. T. N. S. 695. Application for, Application for Appointment- — The application for the ap- Coyrt. pointment of a receiver, must in the first instance be made in Court, but after a receiver has been appointed, applications to till vacancies, subsequently occurring in the office may be made in Chambers : Grote V. Bing, 9 Ha. App. 1., but the order for a receiver has been granted in Chambers, by consent : see ante, p. 81. Under Rule S. C. 399, a defendant may, before judgment, apply for an interim inj unction, and receiver. He may do so, notwithstand- ing the plaintiff has already served notice of motion for the like purpose. In such case, one order will be made on the two motions, but the conduct of it will, in general, be given to the plaintiff: Sarganf v. Read, 1 Ch. D. 600. Master's warrant 278- The party prosGcutincr the order for a Receiver for apfjointment j. ^ i o ofreoeiver, to [^ to obtain an appointment or a waiTant from the Chancery Order 279. 155 Judge or Master, and to serve the same on all the "'■™ '"""P"?^., o ' receiver aod his,. necessary parties, naming in the copy thereof served, «"«"«»■ the proposed I'eceiver and his sureties. (3rd June, 1853; Ord. 38, s. l.j If the receiver ia named by the Court, "on his giving security," no other person can be named in the warrant, and if the person named in the order fail to give the security, a further order would be necessary to enable the Master to appoint some one else. A receiver when appointed is an officer of the Court, and stands in Eeoeiver, an the position of trustee, to all who are interested in the estate or fund. Q^'^t' °' In making the appointment the Master should endeavour to select a person acceptable to all parties, as well as otherwise fit and compe- tent for the duties he will be called on to perform : Simpson v. Prescott & Ottawa R. W. Co., 1 Chy. Ch. R. 99, and see Brant y. Willoughby, 17 Gr. 627. A receiver should in general be wholly disinterested, unless the Shouia be disin- partiea otherwise consent, or the Court is of opinion that the ap- court appoiat pointment of one of the parties interested would be beneficial to the ™* °^ "'^ P*'" estate : Sargant v. Read, 1 Ch. D. 600. When a party to the action is appointed it is only on his undertaking to act without salary ; lb. ; Wilson V. Greenwood, 1 Sw. 471, 483 ; Blaheney v. Dufaur, 15 Beav. 40, 44 ; Kerr on Eeceivers, 95. Where a receiver is appointed of trust property, the cestui que trust is entitled to have the superintend- ence of the trustee, as a check upon the receiver ; the trustee should who should be not therefore be himself appointed, except under special circum- 1^ njt estate, stances : Kerr 95, 86 ; and where a receiver is appointed of the pro- perty of any person not sui juris, the guardian or committee of such person, should not be appointed for the same reason, nor yet any person connected with him, nor the solicitor in the action : Re Lloyd, 12 Ch. D. 447 ; nor a Master of the Court : Ex parte Fletcher, 6 Ves. 427. A TJartv to the action cannot propose himself as receiver unless Parties cannot propos6 thCDl" leave to do so be embodied in the order : Davis v. Duke of it/aj-Z- selves without borough, 2 &y^. 118. leave of Court. 279. At the time appointed, the party prosecuting on return of '^"' rr , ,.^1 ° warrant, bond to the order is to bring into the Judge s Chambers or the be brought in. Master's oiEce, the recognizance or bond proposed as security; the bond or recognizance is to be of the Master (3rd June, 1853 ; Ord. 38, s. 1.) The recognizance, or bond, here referred to, is intended to be brought in as a draft, and should not be executed until it has been 156 Chancery Orders 280 — 282. Receiver. approved by the Master, see Ord. 281, otherwise its re-executiou may be necessary. Bond, how to be The bond, or recognizance, must now be made to the ' ' Accountant *""■ of the Supreme Court, his executors, administrators, or assigns." Rule S. a 519. The bond of a guarantee company may be accepted as security : 42 Vict. c. 30, and see Carpenter v. Solicitor to the Treasury, 46 L. T. jST. S. 821 ; R. S. 0. c. 15, s. 24. pro"ose\to[her° 280- Any othev party desirous of proposing another *e[ver° to give person as Receiver, is to serve notice of his intention ''°''°''- so to do upon the other parties, naming in such notice the person proposed by him as Receiver, and his sure- ties, and is then in like manner to bring into the Judge's Chambers or Master's office the recognizance or bond proposed by him as security. (3rd June, 1853 ; Ord. 38, s. I.) '^dnt^Rerew^er ^^^ ^* *^® *™® named in the appointment or war- andsettie, and pant the -Judse or Master is, in the presence of the .appro7e,8ecurity. o . parties, or those who attend, so consider of the appoint- ment of the Receiver, and to determine respecting the same ; and to settle and approve of the proposed secu- rity. (3rd June, 1853 ; Ord. 39, s. 1.) In order to enable the Master to settle the security to be given, affidavits must be filed proving the amount of property likely to come to the receiver's hands. The amount of the security required, will vary according to the circumstances ; usually security will be required to be given by the receiver and at least two sureties in double the amount of the probable annual rents of realty, and double the probable amount of personal estate, likely to come to his hands. When a receiver has passed his final accounts, and paid his balances as directed by the Court, an application may be made to discharge tlie bond; all parties interested are entitled to notice of the applica- tion : Brown v. Perrij, 1 Chy. Ch. R. 253. m^ke "report"" ^^^ '^^® Master is to make no report approving of [;pp°i.°''"8 »!''=■ or appointing the Receiver; but the Judge or Master is to appoint such Receiver by signing a written ap- pointment to the following effect, viz : " In Chancery, Eridence to be produced on set- tling security. Discharge of bond. Chancery Orders 283. 157 [style of cause\ — I herebj' appoint [Receiver' s name'] B.eceiver. Receiver in this cause, [sic/nature of Juclqe or Master'];" bi;* t" sign ap- which appointment is to be signed without any war- rant or attendance for that purpose. (3rd June, 18.53 ; Ord. 38, s 1.) Committees of lunatics, and guardians of the person and estate of infants, are to be appointed in tlie sitme manner as receivers. Ord. .537. 283. When signed, the appointment is to be filed hy ^^^'j^'J; ^om t- the party who has procured the person named by him *° ""^ *''"^- as Receiver to be appointed, and is then to have the .same effect as the fihng of the Master's report appoint- ing a Receiver under the former practice ; but the same security, if anj- ^5 1 ' required, must is not to be filed until after the execution and filing of ''««'■"* p'""*™''=''- the securities settled and approved by tlie Judge or Master. (3rd June, 18.53 ; Ord. 38, s. 1.) A receiver appointed " upon liis giving security, " is not effectually Eeceirer's ap- constituted receiver until he has given the security : Edwards v. P»i"tinent, when Edwards, 1 Oh. D. 454 ; 2 Ch. D. 291; but if no security be re-*" quired, he is legally clobhed with the character of receiver from the date of his appointment . 'Taylor v. Eckersley, 2 Ch. D. 302 ; 5 Ch. D. 740. Interference by third parties with the property in question, be- fore the appointment is completed, is not a contempt of Court : lb.; and see Fox v. Mpissing S. W. Co., 29 Gr. 11. After the appointment of the receiver is complete, any inter- interference with ference with the propertv committed to his charge and in his pes- J'^'^^'J™' "• 'i°"' i^ ir .. & r tempt of Court. session, either by parties to the action, or third parties having notice of his appointment, is a contempt of Court, unless the leave of the Court have been first obtained Angel v. Smith, 9 Ves. 335 ; Russell Y. East Anglian R. W. Co., 3 Mc. & G. 104 ; Ames v. Birh- enhead Docks, 20 Beav. 353 ; even though such interference be by persons claiming by title paramount to that of the parties to the action in which the receiver is appointed : lb. ; Evelyn v. Lewis, 3 Ha. 475 ; Hawkins v. Gathercole, 1 Drew 17 ; Randfield v. Band- field, 1 Dr. k Sm. 314 ; and the Court will not permit any one, with- out its sanction, to intecept, or prevent payment, or delivery to the receiver, of any money or property which he has been appointed to receive : Ames v. Birkenhead Docks, 20 Beav. 353 ; but where goods in the posession of a receiver were sold for taxes, and neither the bailifif, nor purchasei-, had notice of the receiver's rights the Court refused to hold the sale void : Gibson v. Lovell, 18 Gr. 197. 158 Chancery Orders 284! — 286. Receiver. When it is necessary for the receiver to bring, or defend, an action. Receiver to ob- "^ **''® other legal proceedings, to recover, or maintain, his right to tiiin leave to sue, property committed to him, he should first obtain the sanction of train." ' ""^ '^ the Court : Thomas v. Torrance, 1 Chy. Ch. R. 9. After attorn- ment, to the receiver, he may distrain in his own name, before attorn- ment leave must be obtained to distrain in the name of tlie person having the legal estate : Kerr 142, 143. The application for leave to sue, defend, or distrain, may be made in Chambers : Tlioinas v. Torrance, 1 Chy. Ch. E. 9 ; notice to the tenants is not necessarj' : Paxton V. Dryden, 6 P. R. 127. awrinst'"!' Proceedings instituted against a receiver for acts done by him in strained. the execution of his office, will be restrained : Simpson v. Hutchison 7 Gr. 308. See posi p. 215 as to proceedings by persons claiming adversely to a receiver. .\ccountsof. Accounts OF Receiver. — See ^>o.<^, Ord. .3SS. Ord. 284. Ord. 284 related to injunctions to stay proceedings at law, and is effete. Ord. 285 provided, that on motion to dissolve an injunction, aflSda- vits might be used to support, or contradict, the answer, and is eflfete. XXIII.— STOP ORDERS. ^on''obtain°n/"" 286- Where any stock, debentures, funds, securities, pay''c°at8''and ex- '^^ moncys, are standing in Court to the credit of any «d°hereby"'°"°"' ^ause, or to the account of any class of persons, or are invested in the name of the Registrar, or other officer of the Court, and an order is made to prevent the transfer or payment of such .stock, debentures, funds, securities, or moneys, or any part thereof, without notice to the assignee of any person entitled in expec- tancy or otherwise to any share or portion of such stock, debentures, funds, securities, or moneys, the per- son by whom any such order shall be obtained, or the share of such stock, debentures, funds, securities, or moneys affected by such order, shall be liable at the discretion of the Court or a Judge, as the case may be, to pay any costs, charges, and expenses, which by rea- son of any such order having been obtained, shall be occasioned to any party to the cause or matter, or anv ]:)erson interested in any such stock, debentures, funds, securities, or moneys. {Eng. Con. Ord. 26, r. 1.) Chancery Order 286. 159 The power to grant stop orders was formerly part of the jurisdio- .lurisdiction to tion of the Court of Chancery, and which now, under The Judicature ^'"^ Act, is vested in all the Divisions of the High Court equally. This Order, it would seem, should, therefore, now be read as applying to the moneys and investments in Court, in any action pending in any of the Divisions of the High Court, and which are now vested in the Accountant of the Supreme Court Rule H. C. J. X. The object of the Order is to prevent injustice being done by the granting of stop orders ex parte. The applicant for a atop order is always required to submit to be bound by the terms of this Order as n condition of getting the stop order. See form of order Seton, 300. The effect of a stop order is simply to prevent the payment out of Object of stop money, or the transfer of securities in Court, to the person appearing on the books of the Accountant to be entitled thereto, without notice being first given to the parson who obtains the stop order. Nothing is decided thereby as to the rights of the parties : Lucas v. Peacock, 9 Beav. 177. A stop order has no effect until delivered to the Accountant, but the payment out maybe stayed for twenty-four hours, on lodging a caveat with that officer. Stop orders may be granted against a fund in Court, on the When granted application of a judgment creditor of the party entitled to the fund : Wilson V. McCarthy, 7 P. R. 132 ; Ooiirto;/ v. Vincent, 15 Beav. 486. A stop ordered may be obtained on a fund ordered to be paid into Court, though it has not been actually paid in : SJiaw v. Hudson, 48 L. J. Ch. 689, but not when it is neither in Court, nor ordered to be paid in: Welledey v. Mornington, 11 \V. R. 17. An assignor should be served with notice of the application for a stop order by the assignee, even though «. party to the cause, notwithstanding Ord. 287 : Parsons v. Groome, 4 Beav. 521. The. application must be supported by evidence of the applicants' title : Wood v. Vincent, 4 Beav. 419 ; Quarman v. Williams, 5 Beav. 133. Sometimes the stop order is followed by an application for Application to payment to the party obtaining it, such a motion is of course made on notice to all parties interested in the fund : lie GilchrUt, Bohii v. Fife, 7 P. R. 430, including any other persons who have obtained stop orders against the fund : see Hulkes v. Day, 10 Sim. 41. Where the party obtaining the stop order does not move for an order for payment to him of the fund, the opposite party may move for payment out notwithstanding the stop order, or may move to discharge the stop order ; such motions must, of course, be made on notice to the person who has obtained the stop order. Priorities. — As between specific chargees on a fund, a subsequent gje^j „ jjop chargee having at the time of his advance notice of the prior charge, o^J^^r on priori- 160 Chancery Orders 287—289. cannot obtain priority over it by first obtaining a stop order against the fund : Livesey v. Barding, 23 Beav. Ml ; Brearcllffv. Dorrington, 4 D. G. tfc S. 122 ; Swayne v. Swayne, 11 Beav. 463, but if he had no' notice of the prior charge when making his own advances, he may gain priority over it by first obtaining a stop order, even though he do so after notice of the prior charge : lb. , Greening v. Beclcford, 5' Sim. 195, but as between parties hiving no specific charge against the fund ; e. g., judgment creditors, he who first obtains a stop order will gain priority : Thomas v. Cross, 2 Dr. & S. 423. The priority acquired by a stop order extends only to the charge in respect of which it was obtained : Macleod v. Buchanan, 33 Beav. 234 ; 4 D. J. & S. 265. stop order can- Tjig stop order cannot defeat the rights of third parties to the- not defeat hen ^ ° i r i i of solicitor. fund : thus, the lien of a solicitor on the fund, cannot be defeated by obtaining a stop order against his client, even under an assignment ; Haymes v. Cooper, 33 Beav. 431. Costs of. Costs of obtaining a stop order are not given as of course : Grimsby V. Webster, 8 W. E. 725 ; Hook v. Roberts, 12 Jur. 108 ; Waddilove V. Taylor, 6 Har. 307. Notice of Stop 287- A person applying for such order, shall not be- Order need not Le . -^ . , , served on parties required to scrve notice thereof upon the parties to the not sought 10 be ^ ^ * ^ affected thereby, cause, or upon the persons interested in such parts of the stock, debentures, funds, securities, or moneys, as are not sought to be affected by the order. [Eng. Con, Ord. 26, r. 2.) Service on as- This Order does not dispense with service on the assignor, signer not dis- although a party to the cause : Parsons v. Gj'oome, 4 Beav. 521, nor on other parties who have obtained stop orders against the fund : Hulkes V. Day, 10 Sim. 41. The applicant may be ordered to pay the costs of parties unnecessarily notified : Glazbrooh v. Gillatt, & Beav. 611. XXIV.— PROCESS. Orii. 288. Ord. 288, provided for issuing attachments on prcecipe in certain cases ; and is superseded by Rule S. C. 365, which provides that no- attachment is to issue without an Order : Thomas v. Palin, 47 L. T. N. S. 207 ; 21 Ch. D. 360. Upon attachment 289- In case the party shall be taken or detained in of contemnor. Sequestration custody Under the writ of attachment, without obey- may issue on "^ precipe. ing the order, then upon the sheriff's return that the Chancery Order 289. 161 party has been so taken or detained, the party prose- cuting the order shall be entitled, upon prcecipe, to a commission of sequestration against the estate and effects of the disobedient party. (3rd June, 1853 ; Ord. 46, s. 2.) SeQUestration. — Originally the writ of sequestration was the Seiaestration. last prerogative process, issued out of the Court of Chancery, for nature of writ, the purpose of enforcing obedience to its decrees. The right of the Court of Chancery to issue such writs, was at first contested by the Common Law Courts, on the ground that the Court of Chancery could not enforce its decrees by process in rem, but only in personam. And it was even ruled at law, that to kill a sequestrator in the exe- cution of such process was no murder. But the authority of the Court to issue such writs was ultimately established, in spite of the "bloody and desperate resolutions" of the common lawyers. See Gilbert's Chy. Pr. 77. A sequestration is in " the nature of a grand distress. " It is a « j^ OTaud dis- process of contempt in rem : Tatliam v. Parher, 1 Sm. & G. 506 ; (see, tress." however, observations of Spragge, C, Meyers v. Meyers, 21 Gr. 216,) and may be issued to enforce either an interlocutory order, or a final judgment. It affects the personal estate, and the rents and profits of the realty, of the person whose estate is sequestered : Jackson v. Binds person- Jackson, 1 Chy. Ch. E. 115; but it does not appear to bind the *"j'p^°*jf„"j.'= land itself ; Hyde v. Oreenhill, 1 Dick. 107 ; in Meyers v. Meyers, lealtj'. 19 Gr. 191 Mowat, V. C, expressed the opinion that under 5 Geo. II. i;. 7, s. 4, in Ontario, lands were bound by the writ of se- questration from the time of its delivery to the sequestrator ; and that the Court might order a sale of sequestered lands ; bu the full Court were of opinion that lands could not be sold „ From date of under a sequestration: S. C. 21 Gr., at p. 218. According to sequestration. English avithorities, it is said that the writ binds from its date and not merely from its execution : Burdett v. Hockley, 1 Yern. 58 . but see Angel v. Smith, 9 Ves. 3.36 ; Harris v. Meyers, 3 Chy. Ch. R. 107. At one time it was doubted whether choses in action could be reached by sequestration ; the later authorities establish that they can : Irving v. Boyd, 15 Gr. 157 ; and see McDowell v. McDowell, 1 Chy. Ch. R. 140. Formerly the writ could in no case issue except under special Wiit mayissue order. Ord. 289 makes an exception to this rule, where the partv ^i"*""' order. ^ r .7 where contemn or is in actual custody for contempt, without obeying the judgment, in custody. or order, sought to be enforced. In such cases the writ may be obtained on prcecipe, upon filing the sheriff's return. 21 162 Chancery Order 289. ued under J. A . Property liable; goods and chat- tels. Documents in custody of con- temnor. Choscs io action, how far bound. Secjuestratlon. The Judicature Act appears to have made no change in this prac- Praoiice oontin- tice ; and it would seem that this Order continues in force ; and that it now applies to all the Divisions ; the process of sequestration being a matter not only of practice, but of jurisdiction, which is now vested in the Queen's Bench, and Common Pleas, Divisions, in com- mon with the Chancery Division . Rules S. C. 344, 360 ; /. ^. a. 9 ; and see Holmested's Manl. Pr. 149. Property Liable to Sectuestration— AH goods, and chattels, in the possession of the contemner, are liable to be seized ; and also any property belonging to him, which can be reached by the seques- trator without suit, or action. And if the keys are denied him, the sequestrator may open rooms, and boxes, that are locked, and sche- dule the contents ; but may not remove property off the premises without the special order of the Court : Pelham v. Newcastle, 3 Sw. 290 n By the Imperial Statute 1 1 Geo. IV. and 1 Wm. IV. c. 36, s. 15, r. 16, sequestrators have the same power over docu- ments in the custody of a person committed for not delivering them, or depositing them in Court, as they have over the contemnor's own property. This provision is incorporated into the law of this Province by H. S. 0. c. 40, ss. 34, 36. Choses in Action. — As regards choses in action, an order of the Court is necessary, to enable the sequestators to sue for their recovery Irving v. Boyd, 15 Gr. 157 ; or they may be reached by motion in the action in which the sequestration issued : see Ward v. Booth, 14 L. R. Bq. 195 ; Ex parte Nelson, Re Hoare, 14 Ch. D. 41. But the chose in action is not bound by the writ of sequestration, until either the sequestrator, or the party prosecuting it, take steps to obtain payment : McDowell v. McDowell, 1 Chy. Ch. R. 140 ; 10 TJ. C. L. J.; London and Canadian Loan ami Agency Co. v. Merritt, 32 C. P. 375. If the debtor admits the liability, and submits to the order of the Court, an order may be made, without further suit, authorizing the debtor to pay, and deliver, the fund, or property, to the sequestrator ; or authorizing the latter to seize the property : Wilson v. Metcalfe, 1 Bear. 263 ; Re Slade, Slade v. Hulme, 45 L. T. N. S. 276 ; 18 Ch. D. 653 : Crispin v. Cumano, 1 L. R. P. & M. 622. But such order cannot be made without the debtor's assent : lb. A claim to indemnity, which a surety has against his principal, before payment by the surety, is not a chose in action, which can be reached by sequestration ; Ii-ving v . Boyd, 15 Gr. 157. Pension.s, and Sal.^kies. — Pensions granted entirely for past ser- vices, may be sequestered : Willcoch v. Terrell, 3 Ex. D. 323 ; Dent V. Dent, 1 L. R, P. & M. 366 ; McCarthy v. Goold, 1 Ba. & B. 387 ; but pensions and salaries for services, still being rendered, or which How recovered under. PeD.cionB and salaries. Chancery Okder 289. 163 may be required infutaro, cannot be sequestered : Fenton v. Lowiher, Sequestration- 1 Cox 315 ; McCarthy v. Goold, supra ; Collyer v. Fallon, 1 T. & E,. 459 ; Spoover v. Payne, 1 D. M. & G. 383, and see Lloyd v. Cheet- ham, 3 Giff. 171. Rents, and Profits, or Rbal Estate, including crops, or other Rent„ ^nd pro- natural produce, or rents paid in kind, are liable to sequestration, but 5'" "' realty ^ bound but land land, whether freehold, or leasehold, cannot be sold under the writ, not saleable uo- which only confers a right to the possession, but does not transfer any "' title to the land, or term, to the sequestrator : Shaw v. Wright, 3 Ves. 22 : or confer any priority over prior specific charges : J/evo-s V. A/ yerai 20 Gr. 185 ; 21 Gr. 214. Tenants in possession should be notified to notified. Order attorn to the sequestrator, and pay their arrears, and growing rents, ^S*'"* • to him: Danl. Pr. 916 ; and upon refusal, the sequestrator may obtain an order compelling them to attorn : Rowley v. Ridley, 3 Sw. 306. The sequestrator may, with the sanction of the Court, lease lands for any period, during which the rents in the aggregate, would not exceed the amount for which the writ issued : Harris v. Meyers, 3 Chy. Ch. R. 89. If a tenant attorns to the sequestrator, and afterwards pays his Paying rent to rent to another party, he may be compelled to pay it over again ^Jor^^Jnt to to the sequestrator : Harris v. Meyers, 2 Chy. Ch. R. 121. A seques- sequestrator, trator can make leases, for any period during which the aggregate Lease by seques- rents, will not exceed the amount for which the sequestration issued : ''ator. Harris v. Meyers, 3 Chy. Ch. R. 89. But the sequestrator cannot, by his lease, affect the right of a person holding an encumbrance prior to the claim of the party issuing the sequestration : Meyers v. Meyers, 19 Gr. 541 Disposition of Property Sequestered.— P)-™a/ocj« a seques- Disposition of tration confers merely a right of detainer of the property sequestered, propfrty seques- Where the sequestration however is issued for non-payment of money, the proceeds of the goods seized will be ordered to be applied in satisfaction of the demand ; Davis v. Davis, 2 Atk. 24. The seques- trator should not, however, make the application, but should pay the proceeds into Court upon leave obtained on motion in Chambers : Danl. Pr. 917. Sale of Property. — Where necessary a sale of personal property gale, when or- sequestered, may, on the application of the sequestrator, be ordered, ^"^^■ e. g. , where goods are of a perishable nature : Shaw v. Wright, 3 Ves. 22 ; or it is necessary for the satifaction of the claim for which the writ issued : lb ; Mitchell v. Draper, 9 Ves. 208 ; a defendants rever- sionary interest in a fund in Court, has been ordered to be sold : Cowper V. Taylor, 16 Sim. 314. The application for leave to sell must be made on notice : Mitchell v. Draper, 9 Ves. 208 ; but ser- vice of notice may be dispensed with : Re Rush, 19 W. R. 417. 164 Chancery Order 290. Sequestration. Notice must be given to the debtor, of an application for an cation for sale'' °^^^^ *° ^^^^ property seized under a sequestration: Forbes v. Con- must be given to MoZity, 1 Chy. Ch. R. 6. According to the dictum of Mowat, V,. C, in Meyers v. Meyers, 19 6r. 185, sequestered land may now be ordered to be sold, as well as goods and chattels ; but the full Court in Meyers v. Meyers, 21 Gr. at p. 218, expressed the contrary opinion, and stated that " all that the Court does ig to direct the application of the rents and profits, and this, not by way of execution, but upon the ground that the party is in con- tempt for disobedience of some order of the Court." See also Nil- son V. yehon, 6 P. R. 194. proceedings by. Obstruction of sequestrator a contempt. Parties haTing Adverse Claims. — Where property affected by a sequestration, claims adverse to ■ j. ^ a_i . . , • i i ^i . i i, sequestration,— or any interest therein, is claimed by some third person, he may apply to the Court for relief, by a summary application in the cause: See Ord. 398-401, post. He should not commence an action against the sequestrator, or disturb hi^ possession without the leave of the Court. If he do so, he may be restrained by injunction. Obstkuction of Sequestratoe, is a contempt of Court : Angel v. Smith, 9 Ves. 335 ; Pelham v. Newcastle, 3 Sw. 289 n, and see Franclclyn v. Colhoun, 3 Sw. 276. But persons having claims on the property sequestered, adverse to the sequestrator, are not driven tO' bring actions, but may apply to the Court for relief upon a motion in a summary way, under Ord. 398-401, and see Meyers v. Meyers, 19 Gr. 541. Death ofcon- Death of Contemnor. — Where a sequestration has issued to- proceedings may compel payment of money, in case the contemnor die, an order may be continued be obtained to continue proceedings against his heir, or devisee, as; the case may be, where the lands descended, or devised, would he assets for the payment of the debt : Hyde v. Greenhill, 1 Diet, 107 ? but where the writ issues for personal contempt, on the part of the contemner, on the death of the contemnor, no order to continue pro. ceedings can be obtained : Tarley v. Meyers, 3 Chy. Ch. R. 102 f Gilbert's Chy. Pr. 86-87 ; except perhaps for the costs : see R. S. 0, c. 40, s. 102 against his re presentativea. Sequestration 290. If an attaclimeiit cannot be executed against defHuit in pay- the party refusing or neglecting to obey the order, by on application in reason of his being out of the iurisdiction of the Court, Chambers. or of hi,s having absconded, or that with due diligence he cannot be found, and the Court is satisfied by affi- davit that such is the case, the party prosecuting the order shall be entitled to an order for a commission of Chancery Order 291. 165 eequestration against the estate and effects of the dis- obedient party ; and it sliall not be necessary for that purpose to sue out an attachment. (3rd June, 1853 ; Ord. 46, s. 3.) An order for sequestration will not be granted against a defendant No sequestration required to do an act, where an appeal is pending from the judg- |Jooeeding" ■ ment directing its performance, and the defendant has perfected the stayed on ap- security required by the Orders of the appellate Court, entitling him to a stay of proceedings : Dundcts v. Hamilton S Milton i?. Co., 19 Gr. 455. Originally the sequestration only issued after an attachment, and Atta<^'i™ent need all other process had been exhausted. Under this Order in cases sequestration, where it would be impossible to execute an attachment, it is unne- cessary to go through the form of issuing one . An attachment may be ordered against a party who is out of the jurisdiction : Bloomfield v. Brooke, 6 P. E,. 264, and see Farewell v. Wallbridge, 3 Gr. 628. 291. If aparty who is ordered to pay money, neglects sequestration to obey the order according to the exigency thereof, the non-payment of party prosecuting the order, may, at the expiration of the time limited for the performance thereof, apply in Chambers for a writ of sequestration against the default- ing party, and upon proof of due service of a notice of the motion, unless the Court thinks proper to dispense with such service, and upon proof by affidavit of such other matters, if any, as the Court requires, the Court may order a writ of sequestration to issue. Where a writ of sequestration is sought, to enforce the payment Sequestration, of money, unless some special ground is made for proceeding c^ ^nforce'^paymeut parte, notice of motion must be given ; and the ordinary procedure o' money de- fer recovering money demands, viz : writs of fi.fa. &c., and attach- ment of debts, should be first resorted to, or shewn to be unavailing : Nelson v. Nelson, 6 P. K. 194; but see Ee Russell Burnet v. Allen, before Spragge, C, January 24, 1876, where the writ of sequestra- tion was granted without such preliminary proceedings. An order for payment of money need not be personally served in order to found a motion for a sequestration : Long v. Long, 6 P. R. 137. The writ cannot properly be issued, to enforce an ordinary judg- ment for the recovery of money, which does not expressly order pay. 166 Chancery Orders 292—295. ment, or limit a time therefoi- : London and Canadian L: "= '^^ed by •^ " H egistrar. Accountant, Registrar, or Judges' Secretary, but every bill exceeding that sum is to be taxed by the Taxing Officer, notwithstanding anything to the conti'ary con- tained in the order. (1st April, 1867; Ord. 16.) Prior to The Judicature Act the costs of m6tions in Chambers and Taxation of costs in Court, where they were under |.30, might be taxed by the oflBcer'"''"™""' """ 172 Chanckey Okders 311—312. be \>y Taxing issuing the order.. It is doubtful, however, whether any costs can now be taxed in Toronto, except by one of the Taxing Officers. See JRale 8. C. 438. ^.»^^8ion of uxa- 3J1 Every Local Master is forthwith, after taxing a officers. y^w Qf costs, to transmit the same by mail to Toronto, addressed " To the Taxing Officer of the Court of Chan- cery, Toronto," and he is to allow in the bill the post- age for the transmission and return of the bill, and shall prepay the same ; and is to allow in the bill the sum of one dollar as a fee for the revision of the bill by the Taxing Officer at Toronto, and a law stamp for that sum, with postage stamps for the postage, is to be paid at the time of taxation by the party procuring the bill to be taxed ; and the Local Master is to transmit with the bill to the Taxing Ofiicer at Toi'onto, the law stamp, and the necessary stamps for postage on the return of the bill to the Local Master. (6th Feb. 1865; Ord. 37.) Kevision of taxa- This Order is modified by Rule S. C. 311. A revision cf taxation is ea"ry'. and when ""'w necessary to be had only in actions, for the administration of an optional. estate, or for partition, or for foreclosure, redemption, or sale of mortgaged premises, or in actions where the costs are payable out of an estate, or out of a fund in Court, or where infants are affected by the taxation : See Side S. C. 439. In other cases the revision may be demanded by any party interested ; but unless demanded it is not necessary -.Rale S. O. 439, b. c. See Holmested's Manl. Pr. 181-2. Review of taxa- A review of taxation may also now be had, and an appeal there- from to a Judge, as provided by Rules S. O. 447-450. See Holmested's tuZ%'Sll^^' ^^^^^- ^"^ 1^^- Notwithstanding Rule S. C. 449, it has been held officers how that an appeal from a taxation by a Local Officer, will not lie direct to a Judge, but that the bill must be revised by one of the Taxing Officers in Toronto, from whom alone an appeal to a Judge will be entertained ; Crowe v. Steeper, 2 C. L. T. 83. Duty of Taxing 312. The Taxing Officer at Toronto, upon receiving OlBcer on receipt ^ ^ ^ \ ^ ^ of bill for re- ^he bill of costs, is to examine the same, and to mark vision. ' ^ ' in the margin such sums (if any) as may appear to him to have been improperly allowed, or to be question- able; and he is to revise the taxation, either ex parte, Chancery Orders 313 — 314. 173 or upon notice to the Toronto agent (if any) of the solicitor whose bill is in question, as in his discretion he may see fit ; but notifying such agent (if any) in all cases where the taxation is not clearly erroneous, or where the amount in question is so large as in the judgment of the Taxing Officer, to make such notifi- cation proper. Such notification may be by appoint- ment mailed to the address of the ag^ent (if any). If upon the revision the sums disallowed shall amount to one-twentieth of the amount allowed upon taxation, the Taxing Officer is to add to the amount taxed off, the amount of postages, and the sum of one dollar aforesaid, and is thereupon to re-transmit the bill so revised to the Local Master. (6th Feb. 1865 ; Ord. 38.) The Taxing Officer, on revision, may restore items improperly dis- Powers of Taxing allowed by a Local Master ; as well as strike out, or reduce, any jjon^ which may have been improperly allowed, even though in the dis- cretion of the local officer : Keim v. Teagley, 6 P. E. 60 ; Re Robert- son, Robertson v. Robertson, 24 Gr. 555. But the Taxing Officer cannot receive evidence to show that costs are payable otherwise than the order awarding them, construed by the ordinary rules of construction, directs : Keim v. Yeagley, 6 P. il. 60. 313- No sum is to be inserted in the report of a no sum to be in- scrt^d for co^ts Local Master as taxed and allowed for costs, until such in report, untii' , --^ ~, , . ^ af Car revisioo . revision by the Taxing Officer; but m a case of urgency a writ of execution may isSue to levy debt or costs, or But execution in both, upon the order of a Judge, subject to the future may issue, revision by the Taxing Officer. (6th Feb.1865; Ord. 39.) Where it is necessary that costs should be revised, the Master „.)iere revision should state in his report that they have been revised, and should nece^ary,^report not date his report until the revision is complete : Waddellv. McOoll, until revision _ completed. 14 Gr. 211. ^ 314. Where a guardian ad litem is appointed on theouardianad^^^ application of the plaintiff, to an infant, or to a person to^pajd in uca of unsound mind, not so found by inquisition, no costs are to be taxed to the guardian ; but in lieu thereof. 174 Chancery Order 315. 'But Court may award taxed costs. the plaintiff is to pay to the guardian a fee of fifteen dollars, and his actual disbursements out of pocket; and the plaintiff in case he is allowed the costs of the suit, is to add to his own bill of costs the amount he so pays. But the Court maj', in special cases, direct the allowance of taxed costs to a guardian ad litem. (1st April, 1867 ; Ord. 18.) Defendants im- properly sever- ing are to be allowed but one set of costs without special order. 315- Where two or more defendants defend by dif- ferent solicitors under circumstances that, by the law of the Court, entitle them to but one set of costs, the Taxing Officer, without any special order from the Court, is to allow but one set of costs ; and if two or more defendants defending by the same solicitor sep- arate unnecessarily in their answers, or otherwise, the ' Taxing Officer is, without any special order of the Court, to allow but one answer and set of costs. (1st April, 1807; Ord. 17.) Rnle as to de- Tlie rule which requires defendants in the same interest to join in in defence, only the defence, appears only to apply to defendants standing in a fidu- ciary position, either as trustees : Farr v. Slieriffe, 4 Har. 528 ; or cestuis que trust ; Peillon v. Brooking, 4 L. T. N. S. 731 ; Sm. Pr. 837-8 ; but see Crawford v. Lundy, 23 Gr. 251. Thus in a suit for specific performance by a vendee against the vendor, and a subse- quent vendee of the same property, it was held the defendants might properly sever in their defence, and employ separate solicitors : Barrett v. Campbell, 7 P. B. 150. But when husband and wife severed in » partition suit, the costs were ordered to be borne by the wife's share : Mildmay v. Quicke, 46 L. J. Ch. 667. And not then Where one of several defendants is charged with fraud, the others .^areed'"" ^™ justified in severing, even though they stand in a fiduciary posi- tion : see Conolhj v. Hill, 7 P. R. 441. applies to truS' itees, ore. q. t. Where defendants have severed under circumstances which, if the severance were improper, would disentitle one of them to costs One defendant improperly sev- ering ; Master , . ,-, can not act under IK toto, the Master cannot act under this Order, if the judgment this Order. award the defendants costs generally. The Order applies only where all the defendants are to blame for the severance, and one set of costs is consequently apportionable between them : Eeid v. Stephens, 3 Chy. Ch. R. 372. Chancery Oeders 316 — 319. 175 316. Where costs are awarded to be paid, it shall he S'ay tax°S competent to the Taxing Officer to tax the same, with- ^^'^"See.'"""' out an express reference to him for that purpose. (29th June, 18G1.) 317- Where in a suit for administration, or partition, rumtoistaHon. or partition and sale, the Master finds that the costs °;Xnrto''25 per amount to twenty -five per cent of the value of the Ma'ster'to rep^ort property involved in the suit, he is to certify to the'^'"""^''''*''- Court the amount of the costs, and the special circum- stances, if any, connected therewith. See now Orel. 643, pos^. The provisions of this Order would still apply wlien taxed costs are allowed instead of a commission, as provided by Ord. 643. Order 318. Provided that where a plaintiff's costs were ordered Ord. 318. to be taxed, and the Master found the case Jto be within the compe- tence of a County Court, he was to tax no costs unless the order also contained a declaration that the cause was proper to be brought in Chancery. This Order is now obsolete. After the passing of the Order, the equitable jurisdiction of the Lower scale of County Courts was taken away and vested iu the Court of Chancery, and a lower scale of costs provided to meet such cases. See Ord. 533, Rule S. 0. 515. Under a general direction to tax costs, the Master is to tax Master to tax *=* according to according to the scale applicable, having regard to the nature, and scale applicable amount, of the claim involved : Brourjh v. Tlie Brantford N. & P. B. direction!*"""" R. W. Co., 25 Gr. 43 ; Kennedy v. Brown, 6 P. R. 318. The Master's decision, however, is appealable : Smith v. McDonald, 25 Gr. 600 : but see Crowe v. Steeper, 2 C. L. T. 83. As to cases in which the lower scale is applicable, see Ord. 553 and note. 319. Where the costs of one defendant ought to be ^^^^^'^'^^ ^° paid by another defendant, the Court may order pay- f^ndaM to an-^" ment to be made by the one defendant to the other ""'"■ directly ; and it is not to be necessary to order payment through the plaintiff. (20th Dec. 186.5 ; Ord. 18.) Under Rale S. C. 428 the costs of, and incident to, all proceedings, Costs indiscrc- _ , ., tio'i of Court, are in the discretion of the Court, but a trustee, mortgagee, or other 176 Chancery Order 320. person entitled by the rules of equity to costs out of a particular estate,, or fund, cannot be deprived thereof. Costs between A defendant is usually liable to pay costs to his co-defendant, when codefendants. ^j^g latter is an innocent party, and is necessarily brought into the litigation in order to enable the plaintiff to obtain complete relief in the action : see McLean v. Grant, 20 Gr. 76. Formerly at law there was no practice, authorizing a judgment to be given against a defen- dant, for the payment of the costs of a co-defendant either directly or indirectly : and even in equity, prior to this Order, the Court of Chancery was accustomed only to order such costs to be paid by the circuitous process of directing the plaintiff to pay them, and add them to his own costs. In interpleader proceedings by sheriffs, the costs of the sheriff were included in the costs of the successful party under if. S. 0., c. 54, o. 16. This Order would seem now tO' apply to all Divisions of the High Court as it appears to be of the class, which regulate not only the procedure but the jurisdiction of the Court, inasmuch as it confers a jurisdiction on the Court to do- directly, what it formerly only did in an indirect way. Costs of appeal 320. In the case of an appeal from a Master's report, be awarded to the Court may give the costs of the appeal, or any part thereof, to a successful appellant. (20th Dec. 186-5 ; Ord. 36.) Costs of appeals When some grounds of appeal are allowed with costs, and others- from reports, disallowed with costs ; the appellant is entitled to all the costs of the how awarded. . ,. appeal that are exclusively applicable to the objections allowed, and to a proportionate share of those costs common to all the objections, according to the number of really distinct grounds of appeal on which he succeeds ; and the same rule applies to the costs of a respondent : £a7tJc of Montreal v. Ryan, 13 G-r. 204. Sometimes instead of giving costs to each party of so much of the appeal as to which he succeeds, the general costs of the appeal are awarded to one of the parties, subject to the deduction of a proportionate part of the gross amount, in respect of the partial success of the other party. Thus, when there were four district grounds of appeal embraced in eleven objec- tions, of which objections two only were allowed, the Court gave the general costs of the appeal to the respondent, deducting therefrom one-fourth in respect of the partial success of the appellant : Fergu- son V. Frontenac, 21 Gr. 188. Notwithstanding the pro-visions of Rule S. C. 428 referred to in the preceding note, it is probable that no alteration will be made in the practice as to the disposition of the costs of appeals from Master's reports, and the Judges will probably continue to follow the rules of the Court of Chancery. The general rule is, that the costs Chancery Okders 321—330. 177 should follow the event of the appeal : Dowmy v. Roaf, 6 P. E. 89 ; ?™"»' >•"'? Jf > ^^ ^ that costs follow Huntington v. Van Brocklin, 8 Gr. 421 ; and the word " event is to the event lie understood distributively: Bank of Montreal v. Ryan, 13 Gr. 204. But where the appeal fails on the principal point involved, and sue" g^j ^^^^ appeal ceeds onlv as to a comparatively insignificant one, the whole costs of successful only 1 Ti T ^ . **° some insig- the appeal may be given to the respondent : Brownlee v. Vnnmng- nificant point, ham, 13 Gr. 586. And where the Court is of opinion, that the b^P(f^'^ered"?^Vy finding of the Master was a fit subject for discussion under the all costs circumstances, although the appeal be dismissed, costs may be refused: Secordy. Terryher-ry, 14 Gr. 172, and costs have also been refused of a successful appeal, where the report was detective, and the solicitors appeared to have been neghgent : Clouster v. McLean, 10 Gr. 576. When au appeal was dismissed on a ground raised for the first Costs, when ap- time on the appeal, and not adjudicated upon by the Master, the ^uoVid ™Toh°t'^ Court refused costs : Beward v. Wolfenden, 14 Gr. 188 ; McDonald not adjudicated ' . upon by Master. V. Wright, lb., 284, and the same rule applies when the appeal is successful on a ground not taken before the Master : Goddard v. Jef- freys, 46 L. T. N. S. 904. Where an appeal by an executrix was allowed without costs, on the hearing on further directions the Court refused to order the costs of the appellant to be paid out of the estate: Story V. Dunlo-p, 13 Gr. 375. Order 321 provided that bonds for security for costs were to be Ord. 321. made to the Registrar, that all defendants were to be included in the same bond ; and the amount of the penalty was to be fixed by the Judge, or Master, making the order, and is superseded hy Rules S.C. 430, 431. XXVI— PROCEEDINGS TO REVERSE, ALTER, OR EXPLAIN, DECREES, OR ORDERS. Orders 322-329 regulated the practice on the rehearing of decrees, Ord. 322-329. and orders, and are superseded by Rules S. C. 510, 522-531. 330- Any party entitled by the former practice to file Application by . ■ .1 • , ■ T <• petition, substi- a bill or review, praying the variation or reversal oi an tuted for wiis of Tie • • review, bills to order, upon the ground or matter arising subsequent to impeach decrees, ^ ° . ... and bills to carry the order, or subsequently discovered, or a bill in the deerees into ope- nature of a bill of review, or a bill to impeach a decree on the ground of fraud, or a bill to suspend the opera- tion of a decree, or a bill to carry a decree into operation, is to proceed by petition in the cause, praying the relief which is sought, and stating the grounds upon which it is claimed. (3rd June, 1853 ; Ord. 9, s. 18.) 23 178 Chancery Order 330. Sw^^"' • ^"'^' far this Order continues in force, if at all, is doubtful. It whether now in . ' ' foroe. prescribes tile iiling of a petition iii lieu of various forms of supple- mental bills, which are abolished by Ord. 6 ante. In England, where no such practice as that prescribed by this Ordn- was in force at the time of the passing of The Judicature Art, and the practice of tiling supplemental bills prevailed, it has been held since The Judi- catmr- Act came into force, by analogy to the former practice, that in order to set aside a judgment obtained b}'^ fraud, a new action must now be brought : Flower v. Lloyd, 6 Oh. D. 297. Wliether in this Province, relief in such u, case could be granted on motion, or on petition, in the original action under this Order : or whether a new action is necessary, has to be determined. On petition under A person presenting a petition under this Order, in a case where Ord. 330, security , , ,-,, r . , -i, • ii j. c r -u c required. " formerly a bill of review, or a bill m the nature of a bill oi review, should have been filed, was required to give security for costs : .Sadlierv. Doyle, before Proudfoot, V. C, 19 and 26 Nov. 1877, and see Beames' Orders, pp. 314, 366, and see Canadian Order in Chy- r2th Jul}', 1844, Ixxix ; but see Ord. 1 ante. tion^nnece^ss^ry Leave to file a petition under this Order w-as not necessary in any case : Dtigc/an v. McKay, 1 Chy. Ch. R. 380. For cases in which petitions have been presented under this Order, see Bank of Upyer Canada v. Wallace, 16 Or. 280: Brouse v. Stayner, 16 Gr. 1 ; Dumble v. Cohourg '■ P""- 333 Upon the hearing of the petition, the Court may either make a final order, or direct the petition to stand over, with liberty to the parties interested in sustaining the decree to file a special answer to the same ; and may make such order as to the production of further proof, and the manner thereof, and the further hearing of the petition, as the Court deems meet. (3rd June, 1853 ; Ord. 9, s. 18.) See note to Ord. 330. The respondent may file affidavits in answer to the petition, with- ont first obtaining the leave of the Court : Robson v. Wride, 14 Gr. 606 ; 15 Gr. 565. When reversal 334. Where the reversal or variation of an order is matter, "same"" sought upou ncw matter, such proof as would have site J'on'ni'o'tion been requisite upon a motion to file a bill of review review. must bc Supplied. (3rd June, 1853 ; Ord. 9, s. 18.) See note to Ord. 330. Proof requisite to The rule as to the proof requisite upon a motion to file a biU of re- re-ricw ' '''" "' ^^^^ ^^^ *^"^ ^^^^ down in the Privy Council, in HosUng v. Terry, 8 Jur. N. S. 977 - "The rule which we collect from the cases cited in the argument is this, that the party who applies for permission to file a bill of review, on the ground of having discovered new evi- dence, must show that the matter so discovered 'has come to the knowledge of himself and his agents, for the first time since the period at which he^could have made use of it, and that it could not with reasonable diligence have been discovered sooner ; and secoii'^'l'*,''y ""?' tioii, unless otn- some other way. Even after an abortive attempt to sell by auction, erwise ordered. a sale in any other way could not be had except by express order : Berry w. Oibbons, 15 L. E. Eq. 150. Now, where a sale is ordered, the Master may cause the property, or a competent part thereof to be sold either by public auction, private contract, or tender, or part by one mode, and ijart by another, as he may think best for the interest ,, „ ,! ni-iT,, Rut DOW Master of all parties ; and he may hx an upset price, or reserved bidding, but may direct sale such price, or bidding, must be so fixed at the meeting held by him J^ti'""'Yr "J''"' for the settling of the advertisement, and making the other arrange- fix reserved bid, 25 *"• 194 Chancery Order 379. ments preparatory to the sale, and must be notified in the conditions of sale. Euk S. 0. 331. The Master is not justified in acceptinga tender from the person having the|,conduct of the sale : Bamsay v. McDon- ald, 8 P. E. 283. Sales by auction, When land is offered for sale by auction, unless in the par- enti'M to^br tioulars or conditions of sale it is stated that the land will be declared pur- gol(i subject to, a reserved price, or a right of the seller to bid, the sale is to be deemed, and taken, to be without reserve ; and upon any sale without reserve, it is unlawful for the seller, or a pu£fer, to bid, or for the auctioneer knowingly to take any bidding from a, seller, or puffer. See R. S. 0. o. 98, ss. 13, 14. Upon a sale without reserve it is not open to the vendor to refuse a bid how- ever small : O'Connor v. Woodward, 6 P. E. 223 ; Mc Alpine v. Young, Reserved bid " Chy. Oh. R. 171. The offer of property subject to a reserved bid- does not author- cling, does not involve also a right for the seller to bid, or to employ of puffer. a puffer ; thus, where a sale was advertised under a decree subject to a reserved bid, but no right on the part of the seller to bid was reserved, but a puffer was employed whose bids did not exceed the reserved bid, the sale was on the application of the purchaser set , . : . ■ ^. . aside : Gilliat v. GilUat, 18 W. R. 203 ; 9 L. R. Eq. 60, and if a lim- Limited right of ,,,,.. i ' ■vendor to bid ited right to bid be reserved, and the limit be exceeded, the sale is ee\Ted' ''"''" -voidable : Parfitt v. Jepson, 46 L. J. C. P. 529. Master or his '^^^ Master, or his clerk, may conduct the sale if no auctioneer is clerk, may ai;t_ as employed : see Ord. 383. No license to act as auctioneer under R. S. out license. 0. c. 174, s. 465, ss. 2, is necessary: Regina v. Chapman, 1 0. R. 582. . .» Under a judgment for sale in a, mortgage suit, it is the raort- In mortgage suit, o o o o j mortgagor should gagor's duty to see to the parcelling out of the land directed to toemelit pro-^"^" be Sold, and if he consider too much is offered for sale he should vides for with- urge the objection at the time of settling the advertisement, and drawing land . , ^ , , , . , , . not necessary to it should be stated m the advertisement that so soon as suffi. cient has been realized by the sale to pay off the plaintiff's and other claims, the remaining lots, if any, will be withdrawn, if that course is intended to be pursued : Beatij v. Radenkurst, 3 Chy. Ch. R. 344. Standing condi- 379- The standing conditions of sale are to be those tionsof sale. ^^^ j^^^j^ .^ Schedule P. (3rd June, 1853 ; Ord. 36, s. 13.) Where owner of Where the owner of the equity of redemption is dead, and his tUin'dM wfthoSt "^^"^ ^""^ °^^ "^ ^^^^ jurisdiction, or unknown, a sale may be directed heirs, sale may in an action against a subsequent mortgagee, and the Provincial suit^to which Attorney-General as representing the deceased mortgagor, but the A. 0. is a party, circumstances under which the sale is directed, must be stated in the particulars of sale ; Smith v. Oood, 14 Gr. 444. Chancery Okdees 380—381. 195 Any conditions varying from, or in addition to, the special condi- tions must be stated at length in the advertisement, Ord. 377. As to special conditions see note to Ord. 377. 380- The Judge or Master may, without further Manter may ax order, fix an upset price, or reserved bidding, where it reserved bidding, is thought expedient ; but this must be done at the meeting before mentioned, and it must be notified in the conditions of sale. (3rd June, 1353 ; Ord. 36, s. 7.) In order to enable the Master to tix a reserved bid, an affidavit Reserved bid, ade by some cor 2nded., No. 940. made by some competent surveyor must be filed. See Le.ggo's Forms, '"'"' ^^^ According to the English practice affidavits for the purpose of enabling the Judge to fix reserved biddings are to state the value of the property by reference to an exhibit, so that the value may not be disclosed by the affidavit when filed. Judge's Regulations, Aug. 1857, xiii : Snow & Wiustanley Ch. Pr. 575. Where the Master omitted on the settling of the advertisement How commuui- to fix a reserved bid, on motion in Chambers leave to fix re"°gj^ to auo ion- served bid, and re-advertise was granted : Fraser v. Bens, 1 Chy. Ch. E. 71. "Wliere the sale takes place elsewhere than before the Master, a note of the amount of the reserved bid under a sealed cover is to be delivered to the auctioneer, or person selling the estate, with instructions not to open it until the biddings are closed, and not to make the amount of it known even then. 381- All parties may bid, without taking out an ah parties may ■*■ "^ ^ bid, except party order for the purpose, except the party having the con- having conduct r c > 1 s. J o of sale, trustees, duct of the sale, and except any trustees, agents, and »f«°'s, and ' . . ^ o J others, in a fidu- other persons in a fiduciary situation; and where any '='^''y p''^'"'"'- parties are to be at liberty to bid, it must be notified uberty to wd' it' in the conditions of sale. (3rd June, 1863; Ord. 36, ""condition 0/ ^ s sale. s. 7.) Leave will not usually be granted to the party having the con- ■^''''■™ *"''''*■ "°* duct of the sale to bid : Phillips v. Conger, 1 0. S. 231 ; Dnmville, having conduct v. Berrm(iton,1 Y. & C. 723; SW/iey v. iJaiifl'e)- 12Sim. 118, nor to his "'^ ^'''''• servants, or agents : see Martinson v. Clowes, 46 !■. T. N". S. 882 ; 51 Nor to executor, L. J . Ch. 594. Except upon the terms of transferring the ooncfuot of Sian'ad' m'Zar the sale to an independent solicitor, if none of the other parties will 'rustee. 196 Chancery Orders 382 — 383. take it : Ramsay v McDonald, 8 Pr. E. 283. Leave to bid has also' been refused to an e-tecutor, in an administration action : Oeldard v. Randall, 9 Jur. 1085 ; to a receiver : Alven v. Bo>ul, 1 Flan. & K. 196 ; to a guardian ad litem ; see Seton 1396 ; Crawford v. Boyd, 6 P. E. 278. Leave will not, in general, be granted to trustees to- bid, unless all the cimtAiin que trust who are sui juris consent, and no other purchaser at an adequate price can be found ; Tennant v. Trendiard, 4 L. R. Chy. 537, 547 ; Farmer v. Dean, 32 Beav. 327, and see Richer v. Rkitr, 27 Gr. 576 ; S. C. 1 App. E. 28 ; 183 C. L. J. 274 ; 2 C. L. T. 399, and a trustee who has obtained leave to bid, is not exonerated from his duty of protecting the interest of his cestni que trust : lb. Leave to bid how Leave for parties, not otherwise entitled, to bid, is sometimes jbtained. contained in the order, or judgment, directing the sale, but an order for that purpose is usually obtained in Chambers on notice to the other parties interested. The Master has no power to grant such leave : Re Laycoch, McOillivray v. Johnscm, 8 P. E. 548, except when exercising jurisdiction in Chambers under Ride S. 0. 422. Effect of party When a party not authorized to bid, has bid without leave and not auihorized become the purchaser, the sale will not necessarily be set aside, but to bid becoming -^ ' j t purchaser. the property may, on the application of the other parties interested, be ordered to be put up for sale again at the expense of the party so bidding, and if no more can be realized he may be held to his purchase: Wilson V. Greemooocl, 10 Sim. 101 ; Sidney v. Ranger, 12 Sim, 118 ; Crawford v. Boyd, 6 P. ,E. 278. Pary having 382. Tile advertisement is to be inserted by the conduct of saf' J directrd''''^ ** "' P^'-'^y '^°'^*^''^°*'"g ^^'^ ^^^^' ^* ^^'^^ times and in such mamier as the Judge or Master appointed at the meet- ing before mentioned. (3rd June, 1853 ; Ord. 36, s. 6.) Postponement of ^l^^n ^ Sale is postponed, a note of such adjournment published sale, how pub- at the foot of the original advertisement will suffice, without incur- ring the expense of an entirely fresh advertisement : Thompson v Millilcen, 15 Gr. 197. Sales not to be Sales are not to be postponed except in extreme cases. Where cept^'in extreme pending the time appointed in a mortgage suit for redemption, the mortgagor made an assingment in insolvency, but the plaintiff pro- ceeded with the suit without adding the assignee ; a motion by the latter to stay the sale on the ground that he had had no notice of settling the advertisement was refused : Hoshins v. Johnston, 6 P. E. 257. Master, clerk, or 383. The Master or his Clerk is to conduct the auctioneer may conduct sale. Chancery Order 384. 197 sale where no auctioneer is employed. (3rd June, 1853 ; Ord. 36, s. 7.) An auctioneer selling land is not required to be licensed under The Auctioneer need Municipal ^ci!, 46 Vict. c. 18, s. 495, ss. 2: Regina v. C/tapmaw. ■"" ''^ ""^n™"!- 1 0. R. 582. 384. Biddings need not be in writing, but a written Biddings— o G' agreement to be agreement is to be signed by the purchaser at the time cjfaser ''^ '"^'' of sale. (3rd June, 1853 ; Ord. 36 s. 7.) Where the sale is to be without reserve, the vendor is not at ''^l* ■'f"'!'""' '"" liberty to refuse any bid, however small : O'Connor v. Woodward, 6 P. R. 223 ; McAlpine v. Young, 2 Chy. Ch. E. 85, 171. Neither, when the sale is without reserve, can the vendor, or a puf- Vendor, or puf- fer, bid, unless the right to bid is expressly reserved in the conditions '^' ""^ °°' '''*■ of sale. And wh^re the right to bid is limited to one or more bids, the vendor may not exceed it. And where the sale is subject to a reserved bid, a puffer cannot also be employed. See Oi-d. 378, note. Where the sale is without reserve, but the vendor, after a bid has _been made, withdraws the property from sale, the highest bidder maj', nevertheless, apply to be declared the purchaser : McA Ipine V. Young, supra. It would seem that such an application should be made in the first place to the Master to report on the sale, and if he refuse to report the highest bidder the purchaser, an appeal would lie from him to a Judge in Chambers in the ordinary way. In Mc- Alpine V. Young, however, the application appears to have been made in Chambers in the first instance. Where the auctioneer has accepted the bid of a vendor, or puffer, Acceptance of a who had no right to bid, and declared him the purchaser, it would son not entitled seem that the highest bidder lawfully bidding, woidd be entitled to '" *>'*• set aside the sale, and have himself declared the purchaser. The agreement to be signed by the purchaser should identify the contract, property purchased, by reference to the particulars and conditions of sale, and should in other respects be a sufficient agreement to satisfy the requirements of the Statute of Frauds. The purchaser shoixld sign his name, and his address and quality contract, how to should also be stated. If his signature is not plain, or initials are *" signed, used, it is desirable that f. note of his full name should be written at the foot. Where any person purchases as agent for another, it should be so expressed in the signature, otherwise he will be treated 198 Chancery Order 385. as the purchaser, 'unless an affidavit showing the fact to be otherwise, is produced on the settlement of the report on sale. See DanL Pr. 4th ed. 1135. DepoBit at sale, 385. The deposit is to be paid to the vendor, if how to be paid. " ^ i . l ±i • n ^ present or if not, to his soncitor, at the time oi sale, and is forthwith to be paid by him into Court. (3rd June, 1853; Ord. 36, s. 7.) Solicitor neglect- If the solicitor for the vendor neglects to pay the deposit into posit, liability of. Court, he may be compelled to do so by order, on application of the purchaser ; Crooks v. Olenn, 1 Chy. Ch. E,. 354. And where he neglected to pay in the deposit, and in consequence of his not having done so the judgment was not in the hands of the Accountant, so that the purchaser could not obtain a direction to pay in the balance of his purchase money, the solicitor was ordered to pay the interest which would have accrued on the whole purchase money, if the money had been duly paid into Court : Smith v. Dunn, 3 C. L. T. 217. Where the deposit was paid by the auctioneer to one of a firm of solicitors having the conduct of the sale, who misappropriated it, the other members of the firm were held liable for it : Biggs v. Bree, 45 L, T. N. S. 648 ; 46 L. T. N. S. 8. If sale goes off Where the sale is not completed through the default of the pur- for default of chaser, he forfeits his deposit to the vendor : Rosenberg v. Cooke, 8 purchaser, de- ' jr .7 > posit is forfeited. Q. B. D. 162 ; Whelan v. Couch, 26 Gr. 74 ; Tilt v. Knapp, 9 P. R. 314 ; even though there be no stipulation to that effect : Ex parte Barrett, Re Parnell, 10 L. K Chy. 512 ; Dunn v. Vere; 19 W. E. 151. And this is so, even where the contract is invalid, and could not be legally enforced : IVwmas v. Brown, 35 L. T. N. S. 247 ; (but see Casson v. Roberts, 31 Beav. 613) ; or where there is a defect in the vendor's title, which the purchaser is precluded, by the conditions, from objecting to : Rosenberg v. Cooke, supra. Costa of paying Though the vendor's solicitor is entitled to his costs of receiving in purchase ^jjg deposit on sale, and paying it into Court, out of the fund, he money, ^ ^ c j o ' ' must look to the purchasers for his costs of receiving, and paying into Court any other instalments of the purchase-money, which it is their duty to pay into Court : Re Robertson, 24 Gr, 555. Security for de- In England the auctioneer, or solicitor, appointed to receive the f"'"'" deposits, is required to give security duly to account therefor : Danl. Pr. 4th ed., 1173. But this has not been customary in Ontario. Chancery Orders 386—387. 199 386. After the sale is concluded, tte auctioneer, where Affidavit of auc- one is employed is to make the usual affidavit accord- «c"atrof Master!" ing to the present practice; and where no auctioneer °^ "■""'* °^ """■ is employed, the Master or his Clerk is to certify to the same effect. (3rd June, 1853; Ord. 36, s. 7.) For form of affidavit of auctioneer see Leggo's Forms 2nd ed No. 947. 387. The report on sale is to be in the form set forth Report on sale, sche permit. in schedule Q., or as near thereto as circumstances ''™°' The Bolioitor having the conduct of the sale usually takes the ne- Report on sale, cessary steps to procure the report on sale ; but it would seem that p^Ju °ed *° '"' a purchaser may himself take out the report on sale, and get it confirmed where he is the sole purchaser : Crooks v. Glenn, 1 Chy. Ch E,. 354 ; or senible, he may take a separate report as to his own purchase where he is not the sole purchaser. The confirmation of a sale may be opposed before the Master, and Opro-ingsale the sale disallowed, on grounds which would justify a motion to set ^^°'^° faster, it aside : Beaty v. Radenhurst, 3 Chy. Ch. E. 344. A motion to confirm a sale, will not be entertained in Chambers, Opposing sale where an irregularity has occurred, unless the sale has been approved '" Ctambers. of by the Master; Thomas v. McCrae, 2 Chy. Ch. R. 456. Where the Master's directions have not been observed, the party having the conduct of the sale will have to shew, at his own expense, that no person interested has been injured by the non-observance of the direction, otherwise the Master will not confirm the sale ; Royal Canadian Bank v. Dennis, 4 Chy. Ch. E,. 68. Where some person not having authority to bid, has improperly where a party bid and been declared at the auction the purchaser, the Master ^'^^^j!^'^^™'^^^; should not declare the sale void, but should report the sale, stating cbaser, had no the facts as to the improper bid ; and it is then open to the other parties to move to have the property again put up for sale, at the expense of the party so bidding improperly, aud holding him to his purchase if no higher price is realised ; Crawford v. Boi/d, 6 P. R. 278, note p. 280 ; or the purchaser may, on notice to all parties interested, move to confirm the sale to him. When the person so bidding has also had the conduct of the sale, the sale will not as a general rule be confirmed, if any party object. 200 Chancery Order 388. Until confirma- Until confirmation of the report on sale, the property is at the ^KpropmyTrisk of the vendor, and in the event of fire, the loss occasioned risk of vendor, thereby must fall on him; Stephenson v. Bain, 8 P. R. 166. 258; S. 0. 16 C. L. J. 15 and 115; but see Rayner v. Prenton, 43 L. T. N. S. 18 ; B. C. in Appeal 44 L.T. N. S. 787 ; 18 Ch. D. 1 ; Gill V. Canada Fire and Ilarine Inxurance Co., 1. 0. R. 341 ; Castellain V. Preston, 8 Q. B. D. 613 ; 46 L. T. BT. S. 569 ; 19 C. L. J. 143. ale may be Ob- sgg. A Sale must be obiected to by motion to the jected to on mo- — "" j p i /• tioi- Court to set aside the same ; and notice of the motion must be served upon the purchaser, and on the other Notice to be parties to the cause; but the biddings are only to be chMe*r°a"nd''other opened ou special grounds, whether the application is ?ause^ ° " made before or after the report stands confirmed. (3rd June, 1853 ; Ord. 36, s. 10 ; 20th Dec. 18G5 ; Ord. 21.) Motion to " open Although the Order states that the motion must be to the Court, biddings ' may ° r ^ i t. be madn in Cham-it was the constant practice before The Judicature Act, to make such flrmationof re-" applications in Chambers before the Referee. See cases cited be- port. low. Grounds on The motion to set aside the sale, or open the biddings, must gener- may be made. ally be made before the confirmation of the report, but see Richer v. Richer, 27 Gr. 576, and S. C. in appeal, 7 App. R. 282. Formerly, a mere offer to give an increased price was sufficient ground for open- ing the biddings, but this is no longer the case : Roberts v. Durie, I Ghy. Ch. R. 211 ; now, special grounds affecting the validity of the sale, must be established: Creswich v. Thompson, 6 P. R. 52 ; and the fact that the purchaser is one of the parties to the suit makes no difference in the rule ; Mitchell v. Mitchell, 6 P. R. 232 ; and it applies to sales by tender, orprivate contract : Re Bart- lett, Newman v. Hooh, 44 L. T. N. S. 17. Great delay, is an answer to such an application, unless misconduct is shown on the part of the purchaser : Croohs v. Croohs, 2 Chy. Ch . R. 29. The fact that pro- perty was suffered to be knocked down at an undervalue to a son of the testator, under the belief that he was bidding for himself, when in fact he had been employed by a third person to bid for him, was held sufficient to warrant a resale : Rodqers v. Rodc/ers, 13 Gr. 143, and see Re Follis, Kilbourn v. Coulter, 6 P. R. 160. Purchaser as se- But the fact that a defendant was prevented from bidding, by prom- ises made by the purchaser to give him the benefit of the purchase, is no ground for opening the biddings, such fact, if established, would constitute the purchaser a trustee, and the trust must be established by action : Broch v. Said, 2 Chy. Ch. R. 145. cret trustee. Chancery Order 389. 201 Wtere a next friend of a plaintiff who had the conduct of the sale, Purchase by next had bid without authority, a re-3ale was ordered, the next friend being having conduct, held to his purchase in case a greater price could not be obtained, and he was ordered to pay the costs : Crawford v. Boyd, 6 P. R, 278, and seeBamsay v. McDonald, 8 P. K. 283. The existence of mere irregularities in the proceedings prior to the Mere irregularity sale, does not affect the validity of the sale as against a iond fide gronnd to set purchaser; Dickey v. Heron, 1 Chy. Ch. E. 149; Ounn v. Dobk, 15 aside sale. 6r. 655 ; Shaw v. Crawford, 4 App. R. 371 ; McLean v. Grant, 20 e served, day fixed for the application. The word defendant in this Order, must be understood to apply to the persons adverse in point of interest to the applicant, and not merely to the actual defendants in the action in which the proceeding ■is taken. It will be observed that this Order requires, "at least, three nfijree weelts' no weeks' " notice of the motion to be given. And although Buk S. O. 407 ^^^ fg^^^^J'"^" provides that at least two clear days' notice of motion is to be given, ■unless the Court or Judge give special leave to the contrary ; that Mule does not necessarily conflict with this Order, because the Bule merely provides for a minimum notice, and does not provide that that notice shall be sufficient in all cases, where, by the former practice, a longer notice was necessary : see Exchange Bank v. Neivell, 19 C. L. J. 293. The words ' ' at least" seem to indicate that there must be three <;lear weeks' notice of the motion : Rumohr v. Marx, 19 C. L. J. 10. 28 218 Chaj-cery Orders 400—402. t^wer'toteflied 400- Within ten days fi-om the service of the notice within ten days, ^j^g affidavits in answer must be filed. Within six days after the expiration of such ten days, the affidavits in AflidaTif< in reply are to be filed, and except so far as these affi- within six days, davits are in reply, they are not to be regarded by the Court; unless upon the hearing of the motion the Court Costs occasitined glvcs Icavc to auswcr them ; and in that case the costs iu reply""""' of such affidavits, and of the further affidavits conse- quent upon them, are to be paid by the party moving,, unlessthe Court orders otherwise. No further evidence, on either side, is to be used upon the hearing of the motion, without the leave of the Court. Deponents liable Deponents making affidavits in support of, or in opposition to, the to cross-examina- ^ , ° .,i • l_^ tjt tion. motion, may be cross-examined thereon, as m other oases : see ^ule S. a 283. But whether But an examination of witnesses who have not made affidavits, fo?t'^ki'n'"oraf' ™ Support of, or opposition to, the motion, it would seem can now evidence, qucere. only be had upon order obtained for that purpose : Sule S. O. 285 ; Monaghan v. Dobbin, 18 C. L. J. 180 ; 2 0. L. T. 260 ; Taylor & Ewart, 311 ; but see ante, Ord. 266, note. Court may order 401- On hearing the motion, the Court may, instead examination of ^ . „ . . . witnesses, or of either granting or refusing the motion, give such direct inquiry. = ° ° . . or order an ac- dircctions for the examination of parties or witnesses, tion. ^ ^ or for the making of further inquiries, or for the institu- tion of any suit or action, as the circumstances of the case may require. (3rd June, 1853 ; Ord. 41, s. 4.) Persons interfer- Where a person interferes with the possession of a receiver, or may'be restrain'' sequestrator, or brings an action against him, without the leave of ed- the Court, he may be restrained by injunction order, which will usually provide in what method the claim of the person restrained, is to be determined. XXXI.— COPIES. Service of office 402- Officc-coples of answcrs, affidavits, and other copies of affida- vits and oth^r proceedings are dispensed with ; and where service is proceedings difl- i o x pensed with in required, true copies, instead of office-copies, are to be certain cases. j. ' i ' i ' served ; but this order is not to apply to bills, decrees. Chancery Orders 403 — 406. 219 or orders, of which office copies are by the practice of the Court required to be served. (6th Feb. 1865 ; Ord. 12.) This Order -would seem to be still in force aa regards judgments, Ord. 402, how fiir afiBdavits, and other proceedings ; though, of course, as to bills, and ™ °"'*' answers, it is obsolete. An "office copy" of a document is a copy authenticated by the Office copies, proper officer, usually the one in whose custody the original record of the proceedings is deposited. But under Ord. 547, Local Regis- trars, Deputy Registrars, and Deputy Clerks of the Crown, would seem to have power to make office copies. Office copies of decrees were expressly required to be served in certain cases : see Ord. 60, 205, 244, ante ; and where according to the former practice an office copy of a decree, or order, was required to be served, in like cases an office copy of the judgment, or order, would seem to be When to be- necessary under the present practice, except where a diflferent prac- tice is expressly provided. Under the former Chancery practice, the first proceeding in the cause served upon a defendant was usually required to be an office copy ; e. g., bills, or decrees, or orders, served on parties added in the Master's office, and orders of revivor. But under the present prac- tice, it would seem sufficient to serve a plain copy of an order adding parties upon a change of interest, instead of an office copy as formerly : see Rule S. G. 386. Order 403 provided that no more than four copies of a pleading Ord. tos. or other proceeding were to be allowed to any party exclusive of the draft, but inclusive of copies to serve, briefs, and other copies, that might be required or made in the progress of the cause, and is superseded by Rule 8. 0. 129, which is to the same effect. Order 404 provided for the scale of costs to be allowed for printing Ord. 404. proceedings, and is superseded by Rule S. C. 130. Order 405 provided that every defendant appearing by a separate Ord. 40» solicitor was to be entitled to demand two copies of any printed bill, paying therefor two cents per folio, and is now obsolete. XXXII.— TIME. Order 406 provided that " when any limited time from, or after, Ord. 406-. any date or event, is appointed for doing an act or taking a proceed- ing, the computation of such time is not to include the day of such date, or of the happening of such event, but is to commence at the beginning of the next following day ; and the act or proceeding is to .220 Chancery Orders 407-408. be done or taken at the latest on the last day of such limited time, according to such computation. '' ■ Ord 407. Order 407 provided, that when the last day for doing an act expired on a Simday, or other day on which the offices were closed, it might be done on the next day the offices opened. Orders 406-7, appear now to be superseded by BuUs S. C. 455, 456, 457, which are as follows : In periods of less "Where any limited time less than six days from, or after, any date than pix days' ,, t,.i- ixi- holidays ex- or event is appomted or allowed for doing any act or taking any pro eluded. ceeding, holidays, as defined by The Interpretation Act, shall not be reckoned in the computation of such limited time :'' Rule S.C. 455. Days, how " In all cases in which any particular number of days not expressed computed. to ^,3 gjgj^j, ^g^yg_ jg prescribcd by the Act or the Orders, or practice of the Court, the same shall be reckoned exclusively of the first day aud inclusively of the last day." Male S. C. 456. When last day is " When the time for doing any act or taking any proceeding expires day, it is ex- " °^ " Sunday, or other day on which the offices are closed, and by eluded. reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, he held to be duly done or taken, if done or taken on the day on which the offices shall next be open. " Rule S. C. 457. Holidays, what " The word ' Holiday ' includes Sundays, New Year's Day, Good o''c^l'^7. f' '^' ^''riday, Easter Monday, and Christmas Day, the days appointed for ss- 16. the celebration of the birth-day of Her Majesty and of Her Eoyal Suc- cessors, and any day appointed by proclamation of the Governor-Gen- eral, or Lieutenant-Governor, as a public 'holiday, or for a General Fast, or Thanksgiving." R. S. 0. I, c. s. 8, ss. 16. A'-e included in When the time exceeds six days, holidays are to be reckoned : exceeding six Ex.p. Viney, 4 Ch. D. 794 ; except any holiday falling on the last day days, except when gf ^f^^ limited period, in which case it is excluded under Rule S. O. happening on the ^ ' last day. 457; Taylor v. Jones, 45 L. J. C. P. 110. Bute S. C. 457 '^^^ provisions of Rule S. C. 457 have been held not to extend the 4oe8 not extend time for registering an instrument under the Chattel Morteage Act : time for doing ,, ^ ° . , ° ° acts under Stat- McLean V. Finkerton, 7 App. K. 490, nor for bringing an action "''^°' where the time for doing so under the Statute of Limitations expires on a dies non: Morris v. Richards, 45 L. T. N. S. 210. "TtocounUn"' 408- The time of vacation is not to be reckoned in time for- ^j^^ Computation of the times appointed or allowed for the following purposes : Answering. 1. Answeriiig either an original or amended bill Chancery Order 408. 221 2. Amending or obtaining orders for leave to amend Amending, Bills; 3. Setting down demurrers ; setting down demuners. 4. Filing replications, or setting down causes under ^"'"8 lepiica- the directions of Order 152, Order 153, Order 154, or Order 155 ; 5. Master's reports becoming absolute ; Masters' reports r o J DHcouiing abso- lute. 6. Moving to discharge an order of revivor ; charge^orde'l'of revivor. 7. Moving to add to, vary, or set aside a decree, ° t asideTd^ree. by any party served therewith. (3rd June, 1853 ; Ord. 5 s. 4 ; 30th June, 1858.) This Order though, obsolete as regards clauses 1, 2, and 4, would ?'''i' ^C^' ''"^ '^"^ aeem to be still in force, and regulates the practice in all the Divi- sions as to clauses 3, 5, 6, and 7. Setting down Demurrers.- — The long vacation is expressly ex- Vacations ex- cluded from the time allowed for setting down demurrers : Rule S. 0. tJm'if^for'sStinr 461, and under this Order it would seem the Christmas vacation is down demurrers also excluded. As to setting down demurrers, see Bule H. C. J. v. Rules S. C. 195 a. Holmested's Manl. Pr. 109, 275. Masters' KeBOrts. — In order to confirm a Master's report, it '^'astere' reports, iiicvoucio xiici>uj. uo. , , , when confirmed. . must be filed fourteen days : see ante, Ord. 252 ; and a calendar month (Ord. 7) must elapse from its making : Ord. 642 ; i?e Eaton, Byers v. Woodburn, 8 P. R. 289. No' part of these periods must fall in vacation. The fourteen days may run concurrently with the month. But if the month elapse before the filing, then fourteen days further must elapse from the filing, before the report can be confirmed. The word " report" includes certificates of Masters. As a eeneral rule, any report, or certificate, of the Master, which What rsporta . , • ,. J • 1 r -i 1 require confir- may be the subject of appeal, requires confirmation before it can be mation. acted on, or become absolute. A certificate of a Master as to the insufficiency of accounts filed before him requires confirmation : Foster v. Morden, 9 P. E. 70 ; but not a certificate that no accounts at all have been filed. See further as to reports requiring confirmation : Ord. 252. an,te. 222 Chancery Orders 412—413. MotioDB to dis- Moving to Discharge Order of Revivor.— Wliere an order of chargeorders to . „ , . t j.t_ j_- • , • j continue pro- revivor was formerly issued, tne practice is now to issue an oraer ceediDgs. ^g continue the proceedings. The long vacation is excluded from the time allowed for moving against an order to continue proceedings : see Sule S. O. 461. And under this Order the Christmas vacation would seem to be also ex- Time for. eluded. Fourteen days were formerly allowed for moving against an order of revivor, under Ord. 3.S9 ; but now the time for moving against an order to continue proceedings is only twelve days from the service : Sule S. C. 387. Motions to add Moving to add to, or vary, Decrees. — This clause now applies ments. ' to motions to add to, or vary, judgments, by parties served there- with, by direction of the Master, whether on being added as parties to an action, or merely for.the purpose of binding them by, and enabling them to attend, the proceedings in the action. Under Huk S. O. 461, the long vacation is excluded from the time allowed for making such motions ; and under this Order it would seem that the Christmas vacation is also excluded. rr"ud°ito"en' ^^^^ "^^^ power of the Court, and of a Judge in large, or abridge. Chambers, to enlarge or abridge the time for doing an time for doing too o ftheBe^orders ^'^^> ^^ taking a proceeding in any cause or matter, upon such (if any) terms as the facts of the case may require, or to give any special directions as to the course of proceeding in any cause or matter, is un- affected by these orders. (3rd June, 1853 ; Ord. 47.) &ee]Jiules S. C. 462, 514. XXXIII— SITTINGS OF THE COURT. Ord. US. Order 413 prescribed the time for holding Rehearing Terms, and is now obsolete. Ch erv Diri- '^^^ sittings of the Divisional Court of the Chancery Division now «ion:— Sittings of commence on the third Thursday in February, the first Thursday in ' September, and the first Thursday in December : see Rule S. 0. 524, poet. The length of the sittings depends on the business before the Court. « «■"""*• petition to discharge an order of revivor, or to add to, vary, or set aside a decree, are to be entered with the Clerk of Records and Writs at least seven days before the day for which they are set down; and seven days' Notice of hear- notice of the heai'ing or motion is to be served upon all parties entitled to notice thereof. This Order is to a certain extent still in force. The words ' ' at least" seven days, are construed to mean "clear days :" Beard v. Gray, 3 Chy. Ch. E. 104 ; Rumohr v. Marx, 19 C. L. J. 10. Motions for Judgment, and Further Directions.— Causes set Motions for down to be heard on motion for judgment, or on further directions, i^^^^^^;, ^''d in the Chancery Division, must now be set down for a Wednesday, and seven clear days before the motion is to be heard ; and seven days' notice of the motion must be served : see Exchange Bank v. Newell, 19 0. L. J. 253 ; Ord. 642, under which that ease was de- cided, however, is expressly continued in force by Rule S. 0. 3, which is not the case with Ord. 418 ; and see Rule S. G. 407. Defendants who have not appeared, are now entitled to notice Notice of motion. 224 Chancery Oeder 418. of a motion for judgment : Burritt v. Murdoch, 18 0. L. J. 59 ; 9 P. Tf. 191 ; the notice may in such cases be served on them, by posting, it up in the office whence the writ issued : Rule S. C. 131 ; credi- tors w^o have proved claims, but who are not made parties, are not entitled to notice of a hearing on further directions : Lavin v. O'Neil, 13 Gr. 179. Appeals from Appeals from Masters' Reports, are now required to be set Masters' reports, down for hearing in the first instance before a Judge in Chambers, and the practice as to setting down such appeals, is now regulated by Ord. 642 ; and the Judge in Chambers may, if he see fit, adjourn the appeal into Court, in which case, in the Chancery Division, it is cus- tomary to place it on the paper for hearing on the following Thurs- day, without any further setting down, or giving any further notice of hearing. Eehearings. RohearingS. — The Judicature ActscaA. Sides S. C. have discontinued the use of the term "rehearing," and in its place have substituted motions to a Divisional Court to set aside, or vary judgments, which,, however, practically amount to the same thing. Bules S. G. 522, 523, now regulate the practice on such motions. Appeals inChy. " AU appeals, proceedings, and matters, to be brought before the Division to be sit Divisional Court of tlie Chancery Division, are to be entered with down. the Clerk of Records and Writs, at least seven days before the day fixed for the sittings of the Court, and seven days notice thereof is to be served upon the parties entitled to notice." Rule S. C. 522. Applications to ' ' ^^ application to the Divisional Court of the Chancery Divi- Kvisional Cnurt gjon, to change, or reverse, any judgment, shall be made at the first to be made. sittings of the Divisional Court, which begins not less than ten days after the pronouncing of the said judgment." Male S. G. 523. Where the motion is for a new trial of an action, tried by a jury, an order nisi must be obtained : Rule S. C. 308 ; and it would seem that, in the Chancery Division, the cause must be entered seven days before the sittings, to be heard on motion for such order nisi, and seven days' notice of the motion served ; Rule S. 0. 522. Rule S. C. 309 provided that the motion must be made within the first four days of the sittings of the Divisional Court, which might take place next after the trial, etc.; but that Sale was rescinded by Rule S. G. 526, and no new provision has been made regulating the time for moving for new trials in actions tried by jury in the Chancery Division, except Rule S. G. 522, supra. -J .. , Motions for new trials, or to reverse, or vary, judgments in the trials. &c.. in other Divisions, are regulated bv Rules S. G. 527, et. sea. Q. B. &C.l'.Divs. Petitions under Order 330. — The practice as to setting down Ord 830. petitions under Ord. 3.30, would seem to be still governed by this Order nisi when necessary. Chancery Ordeu 419. 225 Order ; and it woulil seem that seven days' notice of the motion must still be given : see Exchanr/e Banh v. Newell, j 9 C. L. J. 253 ; but see Rule S. C. mi. Motions to Discharge Orders of Revivor, or to add to, or Motions to dis- set aside Decrees.— This Order would seem now to apply to set- conttourprorerf ting down motions to set aside orders to continue proceedings, iogs,— or to add which under The Judicature Act, are substituted for orders of re- ments. vivor ; and seven days' notice of the motion would still appear to be necessary : Exchaiiije Bankv. Newell, supra ; but see Rule S. C. 407 ; and the same remark applies to motions to add to, or vary judg- ments, served upon parties added in the Master's office, or upon persons whom it is intended to bind by the proceedings, but who a re not made parties to the action. These motions are properly When to be made J,. -ITJ ri-.! to a single Judge, made before a single Judge. &o. Motions to vary judgments pronounced by a single Judge at the when to he made trial of an action, or on motion fo; judgment, by a party who at p^^j.^'^'*"""*' the time of the pronouncing of the judgment, was a party to the ac- tion, and represented at the trial, or motion, must be made to the Divisional Court : see Rule S. C. 522, 523. Formerly where a decree had been pronounced at the hearing by lefault, the motion to vary, or set it aside, might be made by the party in default, to a single Judge (usually the Judge who pronounced judgment) : Nelles v. Vandyke 17 6r. 14 ; Simmerx v. Erb, 21 Gr. 289 ; and this practice w:is followed since The Judicature Act, without question : Trimble v. Parsons, before Boyd, C, 27th Dec. 1882 ; but it is doubtful whether even in such a case the motion should not now be made to a Divis- i onal Court. Where the judgment has been entered by default witl:. when in Oham- out motioi:, the motion to set it aside by the party in default, may be '""^' made in Chambers : Kline v. Kline, 3 Chy. Ch. R. 79, and see Rob. & Jos. Dig. 1931-1935, Ryan v. Fijsh, 9 P. R. 458. 419. Where further directions have been re.served, ififoausenotset the party having the conduct of the cause does not set within n days the same down for hearina' on further directions, and ation of report ^ *; any party inter- sei-ve notice thereof within fourteen days after the e»ted may set dowiiandgi\e confirmation of the report, any other party affected by notice. the report may set the .same down, and serve notice of the hearing. Evidence taken in the Master's office cannot be read on a hearing Evidence taken on further directions: Goidd v. Burritt, 11 Gr. 234; Curling v. j," "a?'on''F''D Austin, 2 Dr. & Sm. 129 ; McGill v. C'ourtice, 17 Gr. 271. But on but on question the question of costs reserved, the Court will look at an order made may ij,o^ ^t or- on appeal from the report, and also the pleadings, and other orders ^"^' ^'■ made in the cause : Downey v. Roof, 6 P. R. 89. 29 »26 Chancery Orders 420 — 425. Court on v. D., The Court mr.y, on a hearing of the cause on further directions, re- OTTreportror to fuse to act upon a report, although it be confirmed, if it shall appear carry out an «r. jg jjg iajproper, or unsatisfactory: I'aijlor v. Oraaen, 10 Gr. 488 : Baldwin v. Crawford, 1 Gr. 202 ; and it may also refuse to carry out the original judgment pronounced in the action, if it shall appear to have been improvidently granted : see Oommercial Bank v. Graham, i Gr. 419 ; Mitchell v. Strathy, 28 Gr. 80. roneous judg- ment. -Causes not to be set down on de- niarrer,or on mo- tion for decree.or appeal from Mas- ter's report, or further direc- tions, in June, unless counsel certify reserva- tion of judg- ment unneceE' ^ary. 420. No cause set down for argument of demurrer, or by way of motion for decree, or on further direc- tions, or on any petition mentioned in Order 418, adjourned over from the day for which such cause was originally set down, is to be brought on for argument during the month of June ; and, except on circuit, no cau,se is to be heard during the month of June unl&ss counsel certify that no point is involved in it on which it may be necessary for the Court to reserve judgment. This Order is still acted on in the Chancery Division. XXXIV.— VACATIONS. Or<). 424. der 426. Vacation office hours of officers of High Court, and Court of Appeal, Report made in Tacatioo Toid. Orders 421-423, regulated the length of the vacations, and are now superseded by regulation of Supreme Court, of 17th March, 1882, and Ord. of Lieutenant-Governor in Council ; see Ontario Gazette, 1882, p. 437. Order 424, defined the holidays to be observed in the offices of the Court of Chancery, and is now superseded by Ruh S. 0, 535. Order 425 related to the office hours to be kept in the offices of the Registrar, and Clerk of Records and Writs, of the Court of Chan- cery, during vacation, it is now superseded by Rule S. C. 534. By Rule S. 0. 534, " It is ordered that the offices of the High Court of Justice, and of the Divisions thereof, and of the Court of Appeal, shall be kept open during the long and Christmas vacations, from ten of the clock in the forenoon until twelve o'clock noon. " This Rule, it will be observed, does not include the offices of the Supreme Court : e. g., those of the Master in Chambers, the Master in Ordinary, or the Local Masters, and the Accountant. A report made by a Master in vacation was, according to the former practice in Chancery, void : Fuller v. McLean, 8 P. R. 549 ; Ander- son V. Thorpe, 12 Gr. 542 ; unless made by consent of all parties in- terested. Chancery Oeder 426. 227 XXXV.— MORTGAGE SUITS. 426- In.stead of foreclosure, the bill in anymortgage ■suit, may pray a sale of the mortgaged premises, and that any balance of the , mortgage debt remaining due after such sale may be paid by the mortgagor, and the same may be decreed accordingly. (3rd June, 1853 ; Ord. 32, s. 3.) The practice in mortgage actions for sale, foreclosure, or redemption, P^*'™.'" """"'- cqntinues to be regulated by most of the following Orders, which erred by follow- now appear to be in force so far as applicable at all, in all the Divi- DiTisione. sions of the High Court. The relief mentioned in Ord. 426, may now be claimed by indorse- ^"^^^ ^"JJ'^: . 1 ment of deficien- ment on the writ. A mortgagee, however, is only entitled to an c; when granted. order for the payment of the deficiency, where there is an express or implied contract by the defendant, with the plaintiflf, by covenant, or otherwise, to pay the mortgage debt. If there be no such con- tract the mortgagee is entitled to no personal remedy against the defendant : see Christie v. Dowker, 10 U. 0. L. J. IGl ; TurnhuU v. Siimmonds, 6 Gr. 61.5; Forbes v. Adamson, 1 Chy. Ch. R 1 ] 7 ; no personal lia- Glarkson v. Scott, 25 Gr. 373 ; Norris v. Meadows, 28 Gr. 334 ; ''""^ '" P'^" Pierce v. Canavan, lb. 356 ; Mathers v. HeU.iweU, 10 Gr. 175 ; where, however, the mortgage deed contains no express covenant to pay, the law will imply a contract by the mortgagor to pay : see Sutton v. Sutton, 48 L. T. N. S. 95 ; provided there be evidence that the -mortgage was made to secure a debt, or loan : Hall v. Morley, 8 U. i^n\ila. ^ °" 0. Q. B. 584 ; Pearman v. JJyland, 22 U. 0. Q. B. 202 ; Jackson v. Yeomans, 19 C. P. 394 ; 28 U. 0. Q. B. 307 ; 39 U. C. Q. B. 280. The mere acknowledgement of the receipt of the mortgage money, is not su tScient to raise any presumption of a loan, or any implied promise of repayment : London Loan Co. v. Smyth, 32 0. P. 530. Where there is a contract for the payment of the mortgage debt, ^T^^ ^°lvmmT judgment may now be obtained if claimed by the writ, for the full may be made, amount with costs, and for which execution may issue at once, without waiting for a sale of the mortgaged property. Where, however, a reference to the Master to enquire as to en- cumbrances, is necessary, then where relief is also sought on the contract, the judgment should refer it to the Master to take the ac- count, and direct payment ,of the amount which he may find due forthwith, after the making of the Mastei's Report : see Rales S. G. Form No. 168, North of Scotland v. Beard, 19 C. L. J. 252. 228 Chancery Order 426. Surety, rights of. A surety against whom a judgment has been recovered, which by agreement is to stand as security for the payment of the deficiency, is entitled to have the security realise .1 before he can be called on tc pay anything : Teeter v. St. John, 10 Gr. 85. An assignee of the equity of redemption who covenants with the mortgagee to pay o£f the mortgage debt, becomes a principal debtor, and if time be given him by the mortgagee, the mortgagor may be discharged : Mathers v. Helliwell, 10 Gr. 172. Lcg»l mortffiiEee A mortgagee is now usually entitled to a sale, or foreclosure, at enWtled to sule, j^jg option : Meyers v. Harrison, 1 Gr. 449. But a subsequent mort- or foreclopure, c a • • i_ BDbjectto riiiht gagee cannot as plaintiff have a sale against a prior mortgagee with- hafe S.""" *° out tlie latter's consent : McDougall v. Campbell, 6 S. C. R. 502 ; although he may as a defendant, under Orel. 453, post. W here in- fants are concerned, and the mortgagee claims foreclosure, the judg- ment usually directs a sale, or foreclosure, as the Master may find most beneficial for the infants. MortRagee of A mortgagee of chattels : Cook v. Flood, 5 Gr. 463 ; a municipal ci''t' TOr'^rT"' corporation .• Orford v. Bailey, 12 Gr. 276 ; and a chartered bank : lion,- and hank, ^ani o/ Upper Canada "v. Scott, 6 Gr. 451 ; are each entitled to- closure but not foreclosure. But a mere pledgee of chattels is said to be only entitled a pledge of chat- ^o a sale : Carter v. Wake, 4 Ch. D. 605. tels. Mortgagee by de- A mortgagee by deposit is said not to be entitled to a sale, but only" tiTdtoTaa'le'uh-to a foreclosure: Pryce v. Bury, 16 L. R. Eq. 153 n; James v. less he hHs aijrre- Jams, lb. 153 ; Backhouse v. Charlton, 8 Ch. D. 444 ; but where the a legal mortgage, deposit is accompanied by an agreement to execute a legal mortgage, the mortgagee is entitled to either sale, or forclosure- : York Union Bankinrj Co. v. Artley, 11 Oh. D. 205; although an equitable mort- gagee by deposit cannot insist on a sale, yet if a subsequent encum- brancer, or the mortgagor himself, desire a sale, it may be granted as in any other case : Kerr v. Bee.be, 12 Gr. 204. Crown cannot be The Grown cannot be foreclosed, the only judgment that can be oreo ose . awarded where the equity of redemption is in the Crown, is one authorizing the mortgagee in default of payment to take possession mewtwhJro^ until the Crown shall think proper to redeem; Reeve v. Attorney equity of redemp-(j^„^„,;_ 2 Atk. 223; Dunn v. Attorney General, 10 Gr. 482; or Crown. until the debt should be satisfied : Hodge v. Attorney General, 3 Y. & C. 342 : or, if the Crown consent, or do not object, a sale may be ordered : Seton, 1044 ; Prescott v. Tyler, 1 Jur. 470 : 2 Jur. 870 ; Rogers v. Maule. 1 Y. & C. C. C. 4 ; Hancock v. Attorney General, 12 W. R. 569 ; Bartlett v. Rees, 12 L. R. Eq. 395. Mortgagee of A mortgagee of a railway is not entitled to enforce payment of his tleduf faie' or*' mortgage, by either sale, or foreclosure of the Railway, be is only en- foreclosure, titled to have a Receiver, or Manager, of the undertaking appointed : Chancery Order 426. 229 OaU V. Erie and Niagara S. W. Co. 14 Gr. 499 : Peto v. Welland R. W. Go. , 9 Gr. 455 ; Furnens v. Caterham R. W. Co. , 25 Beav. 614. But it seems a vendor is entitled to enforce a lien for unpaid purchase money, Vendor, rights of by sale, or rescission of the contract : Walker v. Ware, H.iSiB.R. W. Co., 1 L. R. Eq. 195 ; Martin v. London, Chntlumi . liability of sure- A surety cannot be required to pay the amount of a judgment ty for deficiency. y,-)^i^\^ jt jj^g been agreed shall stand as security for the deficiency on a mortgage, until the security has been realised, and the deficiency ascertained : Teeter v. St. John, 10 Gr. 85. saiemay be or- 428- The Court may direct a sale of the property, in- dered instead of "^ i ± J ^ foreclosure. stcad of a forcclosure of the equity of redemption, on such terms as the Court thinks fit ; and, if the Court thinks fit, without previously determining the priori- ties of incumbrancers, or giving the usual or any time to redeem. (3rd June, 1853; Ord. 32, s. 2.) The jurisdiction under this Order to direct a sale, is now vested in the High Court, and it may be exercised in any Division thereof. Some special ground must be shown, in order to deprive the Special grounds , c j_i i- . , . . t. necessary to d.-- mortgagor of the ordmary six months time to redeem: Riyney v. Sf oriinaryt'me ^'"^^"'' * ^"^ ^^^ '• '^'^'^^ "■ ^'n'«'-. 27 Gr. 217 ; Newman v. Selfe, for redemption. 33 Beav. 522 ; and even where an application for sale, was made Chancery Order 429. 231 n a foreclosure suit, by subsequent incumbrancers, after the time allowed them for redemption had expired, it was held that the mortgagor was entitled to an opportunity to redeem, before a final order for sale could be made : Trast & Loan Co. v. Reynolds. 2 Chy. Ch. U. 41. Where the writ claims foreclosure, th'i defendant is entitled to in action for have the judgment drawn up fors.de, on making a deposit of ^80 ; ?"' j"'"?"™^ ?.([ ^ and where a judgment has been entered for foreclosure, a subse- to have a sale, quent incumbrancer may also, on being made a party, at any time before the report is settled, on making a like deposit, obtain on prmcipe an order for sale in lieu of foreclosure : see Urd. 456, post. A judgment for an immediate sale, without appointing any d^'y judunientfor for redemption, can only be granted on motion tor judgment, it immediate sale cannot be awarded on praecipe. The motion may be made in a'ed on jprajotjie, Chambers, where infants are concerned : see Ord. 434 ; but in other cases, the motion must be to the Court. An immediate sale has been granted on the consent of the mortgagor, and without requiring the consent of the subsequent incumbrancers : Township of Hamil- Yirh»ther consent ton V. Stevenson, 25 Gr. 198 ; but Blake, V. C, repeatedly refused of mortgagor to make such a decree without the consent of the subsequent incum- cientjunre. brancers, on the ground that the equity of redemption might be worthless, and the mortgagor might have really no interest in the mortgaged property. Where a decree for sale was pronounced in Court, the Referee in After adecree for Chambers refused to entertain a motion for a final order for sale, sale, filial order, before tune for before the time for redemption had expired : Bueli v. Fisher, 6 P. redemption had „ expired, refused. 429- If the request for a sale is made bj- a subse- where sale is 1,1 , I asked by the quent incumbrancer, or by the mortgrigor, or by any mortgagor or ■^ , i_- 1 j.T_ i, incumbrancer, person claiming under them respectively, the party deposit to be making the request is to deposit in Court a reasonable"* sum of money, to be fixed by the Court, lor the pur- pose of securing the performance of such terms as the Court thinks fit to impose. (3rd June, 1853 ; Ord. 32, s. 2.) The provisions of this Order are still in force. By the form of indorsement on the writ in mortgage actions, the ^^^^^^^ j^ ^^,^^^ amount of the deposit to be made by a defendant served with the sa^e m mortgage writ, in order to secure a sale, is $80 : see Rules S. C, Form 9 e. When the sale is applied for by an original defendant to the action, an application to increase the amount of the deposit cannot be enter- 232 Chanceey Ordee 430. tained, even though the costs of the sale will exceed ISO : Oruso v. Close, 8 P. B. 33 ; but the plaintiff may notify the defendant desir- ing the sale, to take the conduct of it : see post Ord. 430. When it may be Where the application for sale, is made by a subsequent incum- iDcrease . brancer added in the Master's office, the amount of the deposit required is also ^80, but in such a case, the amount not being fixed by any Order, it seems the plaintiff, if he deem it insufficient, may move at once, before the order for sale is acted on, to increase the deposit : London Ji O. L. & A. Co. v. Morrison, 7 P. R. 450 ; 15 G. L. J. 57. An application after the sale has taken place to increase the deposit cannot be entertained, even though the sale has failed to realise the amount of the plaintiff's claim : London d; C. L. Ber«d tion to the Master to enquire as to the alleged tender: Rosa v. Vader or epecial direo- « ^, rx. -r^ „„„ tions be inserted, 3 Chy. Ch. R. 236. A decree pronounced pro confesso, or on prcecipe, might be varied, or set aside, on motion in Chambers, without rehearing the cause : see Kline v. Kline, 3 Chy. Ch. R., 79 ; Nelles v. Vandyke, 17 Gr. 14. As to cases in which a decree for foreclosure cannot be granted, see note to Ord. 426, ante p. 228. Order 436, provided that " where no answer is filed, the decree is Ord. 436. to be drawn up upon produo.ion of an office-copy of the bill and an affidavit of the service thereof, iihewing the same to have been en- dorsed with the notice set forth in schedule S, hereunder written." This Order is obviously effete. See Rule S. C, Form No. 9, d. e. Order 437, provided "that the notice under Order 436, is to Ord. *S7. specify whether the plaintiff desires a foreclosure of the equity of redemption, or a sale of the mortgaged premises." This Order is now effete. See Rule S. C, Form No. 9, d. e. 438. Where it appears conducive to the ends of jus-P"^"™.i°'^7"/^t* tice that parties interested in the equity of redemption ^|']"P3J,°J„"br "* should be allowed to be made parties in the Master's iJifj^o'^'ie. office, by reason of the parties so interested being numerous or otherwise, the Court may direct that parties so interested be made parties in the Master's Office, upon such terms as to the Court seems fit; such order to be made only where one or more paities inter- ested in the equity of redemption are already before the Court. (29th June, ] 861.) This Order is now in force in all the Divisions of the High Court. The words "parties interested in the equity of redemption" in Parties to whom , 1 , , . ■ J. i J • 4.1 Order appUea. this Order are intended to apply to persons interested in tne . ultimate equity of redemption, i. tp., the mortgagor or any one 238 Chancery Order 438. Order to add par- ties Dot to be in- Berted in prx- eipe judgment. When order to add partiefl in- terested in the equity nf re- .demption, in the M. 0. may be .obtained. standing in his place. As a general rule, all parties interested in the ultimate equity of redemption in mortgaged property, ought to be made original defendants in an action to enforce the mort- gage, by sale, or foreclosure : Paterson v. Holland, 8 Gr. 238 ; Buckley v. Wilson, 8 Gr. 566 ; but not mesne incumbrancers, or execution creditors, who are always added in the Master's otBce . See Ord. 442. This Order makes an exception to the general rule, and enables the Court to direct, that parties interested in the ultimate equity of redemption, may be made parties in the Master's office. This may be done, either upon a motion for judgment: Jones v. Bank of Upper Canada, 12 Gr. 429 ; or upon a subsequent application for the pur- pose in Chambers, see cases infra. Such a direction, however, cannot be inserted in a judgment obtained on prcecipe. Where the grounds upon which it is sought so to add parties in- terested in the equity of redemption in the Master's office, appear in the statement of claim, it may possibly be still the proper course to move for judgment, in order to obbain the direction of the Court to add the parties : but where the necessity for the order does not appear until after judgment has been obtained on prcecipe, then the motion may be made in Chambers. The parties already before the Court are entitled to notice, but not those intended to be added : Penner v. Cannif, 1 Chy. Ch. R. 351 ; Harrison v. Greer, 2 Chy. Ch. R. 440 ; Bumble v. Moore, 1 Chy. Ch. R. 59 ; but see Cummins v. Harrison, 1 Chy. Ch. R. 369, where the order was granted ex parte. But after a final order of foreclosure, or sale, the application is in general too late : see Orford v. Bayley, 1 Chy. Ch. R. 272 ; Street v. Dofan, 3 Chy. Ch. R. 227. And where the plain- tiff had not acted with reasonable diligence in framing his suit, the order was refused : Porlman v. Paul, 10 Gr. 458. When an order of this kind had been obtained in Chambers any motion to set it aside must be made to the Court upon petition : Tice v. llyers, 3 C. L. J. N. S. 102. Wherever the party added, claims paramount to the plaintiff, he should move to discharge the order adding him as a party : Mont- gomery V. Shortis, 3 Chy. Ch. R. 69 ; but see note to Ord. 445, post. Conflict between Occasionally it happens that the plaintiff is unable to determine to equity of re- which of the defendants is entitled to the equity of redemption, or demption.'how there may be a conflict between defendants on this point inter se. determined ■ ^, „..-,, , , . The Court will not however determine such questions ex parte, even against defendants who have not appeared, but will pronounce the Setting aside orders. Chancery Oedek 439. 239 usual judgment directing all the defendants to redeem, leaving them to settle their rights inter se, by a separate proceeding : Robin- sm V. Dobson, 11 Gr. 357, and see Etimney v. Thompmn, 8 Gr. 372 ; or may direct the Master to enquire as to the point : Cayley v. Hodg- son, 13 Gr. 43c. But latterly any such reference if ordered has been directed as a separate reference from the general reference in the cause, and so as the plaintiff may not be put to ex- pense, or delay, thereby : see decree in Johnson v. Neezer, D. B. 27' fo. 150. Under the Rales S. 0. it would seem that whenever any question arises between co-defendants, the defendant raising the question must deliver his statement of defence both to the plain- tiff, and defendant as to whom the question is raised ; and on the plaintiff moving for judgment, the defendant claiming relief against the co-defendant should be prepared to show that the action is also ripe for trial on the question raised between himself and oo-defen- dani : Rule S. 0. 109 ; and see Steel v. Dickson, 42 L. T. N. S. 765 ; Furness v. Booth, 4 Oh. D. 586. 439. Where the bill is filed hj a subsequent incum-Tisiiit bysubse- brant^er seeking reliet against a prior mortgagee, such brancer for relief mortgagee must be made a party previous to the hear- mortlaa^e.Tho A , , latter must be mg 01 the cause. made an original defuDdant. This Order is in force in all the Divisions of the High Court. An action for redemption by a subsequent, against a prior, mort- Action for re- gagee,will not lie unless the prior mortgage, and that of the plaintiff, fubsequent^in- are both overdue. Parsons v. Bank of Montreal, 15 Gr. 411 ; iono •""■'•'■'^'i'^'"" when It lieb. V. Bong, 16 Gr. 239. The owner of the equity of redemption is a necessary party to such an action. lb. A subsequent incumbrancer, bringing an action against a prior „ . ^ mortgagee, is not entitled to a sale : McDougall v. Campbell, 6 S. C. cumbrancer not K. 502 ; unless the prior incumbrancer consent, or do not object, ™ ' ' o a sa e. to a sale : Grange v. Barber, 2 Chy. Ch. R. 189 ; he is only entitled to judgment for redemption, and in default of redemption he is foreclosed : see Rules S. O. 333-335, or the action is dismissed, which is equivalent to a foreclosure of the plaintiff: Cornwall v. I" default of payment he is Henriod, 12 Gr. 338 : Inman v. Wearing, 3 D. G. & Sm. 734 ; foreclosed ex-iept except in the case of an equitable mortgage by deposit : Marshall a'^te mortK^ee'" V. Shrewsbury, 10 L. R. Chy. 250. by deposit. A bill, by a subsequent incumbrancer, against a prior mortgagee, bjh t,y subse- claiming the right of redemption, but not offering to redeem him, Sr^ncer'for're- was not demurrable : Pearson v. Campbell, 2 Chy. Ch. R. 1 2 ; but demption, but see Rogers v. Lewis, 12 Gr. 257, and it would probably be held that a re°de°m'."not de- statement of claim, omitt'ng an offer to redeem, would not be de- murrable. murrable under the present practice. 240 Chancery Oeder 440 Wherepriorniort- Although a priormortgagee can, ordinarily, onlybemade a party to der absolute deed, an action by a subsequent incumbrancer, for the purpose of redeeming a^dSend^art'tl?'^ '*™' y®* where the prior security is created by a deed absolute in suit by sub,=e- form, a subsequent incumbrancer is at liberty to bring him before the raucer. Court, for the purpose of showing his interest to be redeemable, with, out offering to redeem him : Moore v. Bobson, 14 Gr. 703 ; and see Sogers V. Wills, 2 Chy. Ch. R. 13. To such an action the execution creditors of the alleged mortgagee are necessary parties : Glass v. Or where tran- Freckleton, 10 Gr. 470 ; and see Darlmr/ v. Wilsoti, 16 Gr. 255, 257. mort™gfe^^e'°' ■'■^ ^° action by a subsequent encumbrancer, to redeem, he may also impeached. impeach transactions by the prior mortgagee in reference to tlie mort- gaged estate : McLaren v. Ftaser, 15 Gr. 239. Where sale or- Where a prior incumbrancer is made a party to anyactionbya a subsequent in- subsequent incumbrancer, and a judgment for sale is obtained by cumbrancer, he consent, or without obiection on the part of the prior incumbrancer, haa no priority . for costs. the proceeds of the sale must be distributed in payment of the claims of the incumbrancers according to their priorities, and in such a case the plaintiff is not entitled to any priority in respect of his costs, even though the fund prove insufficient : Orange v. Barber, 2 Chy. Ch. E. 189. Asaigiiment of Where the equity of redemption was valueless, and an assign- equity of re- ment thereof was made merely for the purpose of enabling the demption, when , -^ ^ ^ ° it entitles a.i- assignee to impeach a prior mortgage on the ground of fraud for the priormortgase benefit of the assignor, the assignment was held to savour of cham- for fraud. petry, and no relief was granted to the assignee, even though he asked in the alternative for redemption : Muchall v. Banks, 10 Gr. 25 ; and see Little v. Hawkins, 19 Gr. 267 ; Wigle v. Setterington, lb. 512 ; Bell >'. Walker, 20 Gr. 538 ; Rilton v. Woods, 4 L. R. Eq. 432. But where the assignee takes beneficially, and the assignment is not made merely to enable him to sue in respect of the alleged fraud, it would seem that he may maintain the action. Sears v. Lawson, 1.5 Ch. D. 426 ; Dickinson v. Burrell, 1 L. R. Eq. 337. Subsequent in- -^ subsequent incumbrancer may, in the same action, obtain relief cumbrancer re- against the mortgagor, and incumbrancers subsequent to himself — deeming may ob- , . , tain relief a.iainst consequent on his redeeming the prior mortgagee. Sogers v. Lewis, iubrqurtT 12 Gr. 257 ; McLaren v. Fraser, 15 Gr. 239. himself. , . . . , . , , Prior mortgagee A prior mortgagee in possession, who is also the owner of the orrede^m^plkllf eqi^ity of redemption, is only bound to account to a subsequent incum- how far liable to brancer for rents, and profits, on the footing of a mortgagee in pos- accountfor rents. ■ a-i i • l ■ ■ t rf ^ , ■ . i . session, until uis mortgage is paid oil, any subsequent receipts he is entitled to retain without account as owner: Sleinhoff\. Brown, 11 Gr. 114. MuTtsub-ecuo 440. Where the plaintiff prays a sale or foreclosure, prior mortgage, subjcct to a prior mortgage, the prior morgagee is not Chancery Order 441. 241 to he made a party either originally or in the Master's p™'' "°''*s*s'"' jY^ o i/ j^n unnecessary Office, except under special circumstances to be alleged '^'"^^■ in the bill. (Uth Feb. 1858.) For cases in which a prior mortgagee may be made a party see note to preceding Order. Dpcrftes for fore- closure or sale. 441. Decrees for foreclosure or sale, where a refer- ence is required, are, after the proper recitals hitherto (tmof.° in use, to direct, in general terms, that all necessary enquires be made, accounts taken, costs taxed, and proceedings had for redemption or foreclosure, (or for redemption or sale, as the case may be) and that for these purposes the cause is referred to (naming the Master ;) and a decree so expressed is to be read and construed as if the same set forth the particulars contained in the next thirteen Orders. This Order, though to a certain extent obsolete, is yet apparently order 441 how in force in all the Divisions of the High Court, for the purpose of '^"^ '" *"''"' defining the meaning of judgments issued in the form provided by the Rules S. C. in actions for foreclosure, or sale, of mortgaged pro- perty. Judgments for foreclosure, or sale, under The Judicature Act are .jmjgments under authorized to be drawn in a similar form to that prescribed bv this ■^'^dicature Act -^ •' for fnreclosure or Order. See Forms 168, 169. But the Rules 8. 0. do not expressly state sale, eflectof. that judgments so worded are to have the effect which this Crder states they shall have, it seems however clear that such is the case and in addition to the provisions of the next thirteen Orders, there is also now incorporated in all such judgments the further provisions contained in Rules S. O. 331, 336, so far as applicable to each parti- cular case. When a sale is ordered. Rule S. 0. 331 provides that the Master may sell by public auction, private contract, or tender, as he may think best. He may also, at the meeting held for settling the advertisement, fix a reserved bid which must be notified in the con- ditions of sale. The Master is also to settle all necessary conveyances, in case any infants, or lunatics, are interested, or the parties differ. Rule S. 0. 336 also provides for reconveyances, and delivery of docu- ments, by any party redeemed. Where the circumstances of the case are special, a judgment in the j^ ^^^^^-^ ^^^^^^ ordinary form prescribed by the Rules S. 0. , and this 07-der would funher direc- ^ •' ^^ f J , . tiODS, or costs, not be appropriate. Thus, where a tender was pleaded a special should be re- served. 31 242 Chancery Order 442. inquiry was directed on this point, and further directions, and costs, ■were reserved ; Peers v. Allen, 19 Gr. 98. So also where the defendant pleaded payment in full, costs were reserved : Oooderham V. DeOrassi, 2 Gr. 135. In such cases, this must still be done, or the judgment must provide for the dismissal of the action in case the Or proTision Master shall find in the defendant's favour. So also, where the de- missalof action, fendants were rival claimants to the equity of redemption special directions were inserted in the decree. Runisey v. Thompson, 8 Gr. 372. Bay to show When infants are defendants, a judgment of foreclosure must also reserve a day to show cause. See ante Ord. 434 note. Reference to take Where there are no subsequent incumbrancers, the account should when necessary. ^^ taken on entering the judgment, if the plaintiif take a reference to the Master unnecessarily, he cannot recover the extra costs so occasioned: Hamilton v . Howard, 4 Gr. 581; Purdy v. Parks, 9 P. R. 424. Reference, where The reference, if directed, should be made to a Master in the to be directed. gounty where the writ issued. McCara v. Gwynne, 3 Gr. 310. But the reference may afterwards be changed on motion, forsufEcient cause. Master to inquire 442- Upon such reference the Master is to inquire toances™" and state, whether any person or persons, and who other than the plaintiff, has or have any lien, charge, or incumbrance upon the land and premises embraced in the mortgage security of the plaintiff, in the bill mentioned, subsequent thereto. This Order is in force in all the Divisions, and under the ordinary judgments for sale or foreclosure, the procedure here laid down is to be followed. The Order in its terms applies only to the case of mortgages of lands, but a similar procedure is followed upon a judgment for the sale, or foreclosure of chattels. Master to inquii-e The inquiry is confined to subsequent incumbrancei's ; persons hriticers°siibs'™" against whom relief is sought, whose claims, if any, -are prior to the «="• where the money is appointed to be paid, of non-payment of the money, before, on, or since, the day appointed^ or payment : Farrell V. Stokes, 1 Chy. Ch. E. 201 : duly verified by affidavit. Affidavit of Non-payment. — Where there are several parties Affidavit ot non- entitled to the money directed to be paid, the affidavit of non-pay- ^jfo'^^to'bJ ment should be made by all : Annis v. Wilson, 1 Chy. Ch. R. 217 ; made, but where one of the parties is out of the jurisdiction, his affidavit may be dispensed with : Lyman v. Kirkpatrich, 2 Gr. 625 ; Counter v. Wylde, 1 Gr. 538 ; and where a sole plaintiff resides out of the jurisdiction, the affidavit of his agent will be accepted, and in such case the affidavit should show where the custody of the mortgage has been : Rae v. Shaw, 1 Chy. Ch. R. 209 ; and where, in such a case, the affidavit is made by the solicitor of the plaintiff, it should show that the plaintiff has no other agent within the jurisdiction; authorised to receive the money : Taylor v. Cuthbert, 1 Chy. Ch. R. 240 ; but see Moody v. Tyrrell, 6 P. R. 313. An agent should state that he is authorized to receive the money : Powers v. Merriman, 1 Chy. Ch. R. 225 ; but it is not, however, necessary to produce the agent's authority : Radclyffe v. Baffy, 1 Chy. Ch. R. 302 ; and where the party to receive the money is a corporation aggregate, the affidavit of an officer of the company, must show that he is the proper officer to receive the mortgage money : Western Assurance Go. v. Gapreol, 1 Chy. Ch. R. 227. The affidavit of non-payment must be made after the day appointed j^ ^^^ ^^^ ^^^^^ for redemption : Blong v. Kennedy, 2 Ch. Ch. R. 453. day for payment When Notice Necessary. -The motion for a final order is j^^^.^^ ^j ^^^^^^ usually ex parte, Henderson v. Cowan, 1 Chy. Ch. R. 297. But when necessary, where two years had elapsed since the default, before the motion was made, notice was required to be served : Kirkchoffer v. Stafford, 2 Chy. Ch. R. 52 ; Ardagh v. Orchard, 2 C. L. J. N. S. 303 ; and where it appeared by the report, that the defendant had not received notice of the proceedings in the Master's office, in a case in which he was entitled to notice, notice of the motion, was required to be served : McCormick v. McCormich, 6 P. R. 208 ; and where the 264 Chancery Order 451. account has been changed even after the day appointed for redemp- tion, notice should be served ; Portman v. Smith. 2 C. L. J. N. S. 167. Final order re- On What GroUnds Final Order Refused.— The order may be account'''h^' d ''^f'^^^'l "where the account is changed by the receipt of money be- before day fixed fore the day fixed for redemption : Frees v. Cote, 6 L. E. Chy. 645 GarlicJc v. Jackson, 4 Beav. 154. Where the mortgagee is in occupation, or receipt of rents, he should be charged with rents up to the day fixed for redemption, or a new account must be taken, and a new day appointed for pay- ment : Pi-pe^. Shafer, \ Chy. Ch. B,. 231 ; and it was held that this must be done even where the plaintiff swore he was in occupation merely as a caretaker : Cummer v. Tomlinson, 1 Chy. Ch. R. 235 ; but see ante, Ord. 448, note. N ot when But the plaintiff's going into possession and receiving rents, after v™rdf°* *^°'' ^^^ "^^y appointed for payment, does not affect his right to a final order : Portman v. Smith, 2 0. L. J. N. S. 167 ; Greenshklds v. Blackwood, 1 Chy. Ch. E. 60 ; Constable v. Howick, 5 Jur. N. S 331. Refused, where Where before the day appointed for payment, the office of the dS «on appoint- bank, at which the money is made payable, is closed, a new day ed for payment, must be appointed : King v. Connor, 1 Chy. Ch. R. 274. So where a Sunday was appointed for payment, the final order was refused : Holcmnb v. Leach, 3 Gr. 449. Or j Qdgment Where it appeared that the -decree was erroneous, a final order erroneous. ^^^ refused : Commercial Bank v. Oraham, 4 G-r. 419 ; and see Mitchell V. Strathy, 28 Gr. 80. Death of mort- Where a sole mortgagee, or one of several joint mortgagees, dits gagee before day before the day appointed for payment, unless the judgment provides effect of. in the latter case for paj ment to the survivors, a new account must be taken, and a new day appointed : Blackburn v. Oaine, 22 Beav. 614 ; Kingrford v. Poile, 8 W. R. 110. Crown cannot be Where the Crown is entitled to the equity of redemption, a final orec ose . order of foreclosure cannot be obtained, but merely an order authorizing the mortgagee to take possession until the Crown may see fit to redeem ; Dunn v. Attorney-Oeneral, 10 Gr. 482, or the security be satisfied : Hodge v. Attorney-Oeneral, 3 Y. & C. 342 : Seton, 1044. Effect of final Effect of Final Order. — The final order of foreclosure, so long as order. A bar to jt remains in force, is an absolute bar to the parties foreclosed from right of redemp- . tion. claimmg the right to redeem. But it is no bar to the mortgagee, as long as he is in a position to restore the mortgaged property, from seeking to enforce payment of the mortgage debt: Lockhart v. Hardy, 9 Beav, 349 ; Munsen v. Hauss, 22 Gr. 279. But if, after Chancery Order 451. 265 •a final order of foreclosure, he takes proceedings to enforce payment fnleas mort- -of the debt, that ipso facto operates as an opening of the foreclosure, pnyment of ' and entitles the mortgagor to bring an action to redeem, Ih. mortgage debt. Opening of Foreclosure at the In ■ tance of the Mortgagor.— opening fore- Even after a final order has been obtained, the mortgagor may apply p'osure at the to set aside the order, and to be let in to redeem ; and this relief was mortgagor, granted even as against a purchaser from the mortgagee after the 'final order of foreclosure : Campbell v. Holy/and, 7 Ch. D. 166 ; 26 W. R. 160 ; Johnston v. Johnston, 9 P. R. 259 ; but it has been said that tliis relief can only be granted where the final order has been », i ^ ■obtained by actual, positive fraud, or under circumstances of against pur- oppression : Patch V. Ward, 3 L. R. Chy. 203, 212 ; and in yrmi^?/ mortgagee'^x- ■Oollege v. Hill, 2 0. R. 348 ; 18 0. L. J. 387, the relief was refused as "f f* ''here fraud shown, against a purchaser from the mortgagee after the final order, there being no such circumstances. When the rights of third parties do SirTpar^^es do not intervene, and the plaintiff can be replaced in the same position ""' intervene, it 'he occupied before the default, and recompensed for any damages he may have suffered, and there is a reasonable prospect of payment shewn, the foreclosure may be opened and the time for payment extended: Waddellv. McOoll, 2 Chy. Ch. R. 62; but some reasonable Evidence re- excuse must be shewn for not redeeming at the time appointed, and '""^ ' •the fact that the property is of much greater value than the amount due should be established: Johnson v. Ashiridge, 2 Chy. Ch. R. 251. The fact that the property has increased in value, is not alone a sufiicient ground for opening the foreclosure: Mil^s v. Cameron, 19 C. L. J. 235 ; 3 0. L. T. 361. InPlatl, v. Ashbridge, 12 Gr. 105, the foreclosure was opened after the lapse of eighteen months, the mortgagor being illiterate, and having no solicitor, and not understand- ing the proceedings, and the property appearing to be worth three Mortgagor re- times the amount of the incumbrance. Where, after a final order of mesne incum- f oreclosure against subsequent incumbrancers, the mortgagor redeems ^raucers have that has the . effect of opening the foreclosure as against the subse- jtuent incumbrancers : Read v. Smith, 14 Gr. 250 ; 8. C. 16 Gr. 52 ; Opens foreclosure i ' * ' as to them. Box V. Bridgman, 6 P. R. 234 ; Otter v. Lord Vaiix, 2 K. J. 650 ; 6 D. M. & G. 638. In Hilliard v. Campbell, 7 Gr. 96 ; a final order of foreclosure was set aside at the instance of a purchaser of the Pu'"*s8er of ■^, . equity of re- «quity of redemption pendente lite but without notice of it, but in demption. Rohson V. Argue, 25 Gr. 407, such relief was refused. Terms on which Foreclosure Opened at the Instance of the Terms on which Mortgagor. — The terms on which a foreclosure is opened are in the opened, discretion of the Court. Where the security is not ample, the mort- gagor may be required to pay the interest and costs by an early day, and six months may be allowed for payment of the principal. Fisher on Mortges. 3rd ed. 1053. But where the security is ample, the oosts of the action, and of the appli ;ation, may be ordered to be paid 34 266 Chancery Order 452 forthwith, and the time extended for payment of the principal and interest, the defendant being charged with interest on the gross amount of principal and interest, for the period of the extension see Holford V. Tate, 1 K. & J. 677 ; Whitfield v. Roberts, 7 Jur. N. S. 1268 ; and see Hoioard v.McCara, 1 Chy. Ch. R. 27, and other oases cited in note to Ord. 448. Opening forecio- Opening of the Foreclosure by the Mortgagee.— So long as Bare by mort- t]jg mortgagee is in a position to restore' the mortgaged property, he may, at any time, open the foreclosure by enforcing payment of the Cannot be opened debt. But, if after he have obtained a final order, he has parted with by mortgagee i[ ^j^g mortgaged estate, or any part of it, so that he is not in a position to re-convey. to re-convey, he will be restrained from recovering the debt ; Lock- harl V. Hardy, 9 Beav. 349 ; Gowland v. Garbiitt, 13 Gr. 583 ; Burn- ham V. Gait, 16 Gr. 417; (but see Bald v. Thompson, 16 Gr.-177 ;) but the making of a mortgage by the mortgagee on the mortgaged estate, will not prevent him from opening the foreclosure by suing for the mortgage debt, if at the time of his bringing the action, he has paid off the mortgage, and is in a position to re-convey : Munsen v. Hauss, 22 Gr. 279. SubBequent ac- 452- All Subsequent accounts are, from time to time^ taken \y Mister, to be taken. Subsequent costs taxed, and necessary pro- ceedings had, for redemption by, or foreclosure of, the other party or parties entitled to redeem the mortgaged premises, as if specific directions for all these purposes had been contained in the deci-ee. This Order is in force in all the Divisions of the High Court. Mortgagor pay- ^^ ^'^^ mortgagor, or owner of the equity of redemption, or any ing off incum- incumbrancer, redeems any prior charge which was his own debt, or keep it' alive as which, by contract, express or implied, he was bound to discharge, against an in- j^g cannot keep such charge alive as against a mesne incumbrancer, whom he is bound whose incumbrance he is also expressly, or impliedly, hound to against it. discharge : Blake v. Beaty, 5 Gr. 359. Insurance I^* taking the subsequent, account the Master may allow a sum allowed in sub- p^id for insurance since the last account, under a provision in the sequent account. ^ '■ mortgage : Bethune v. Calcutt, 3 Gr. 648. I nterest on tak- In England, it is the practice on taking the subsequent account, to ing subsequent allow interest on the gross amount of principal, interest, and costs, account, how i tt, \^ allowed. found due by the last report : Jilton v. Cvrteis, 19 Ch. D. 49 ; 45 L. T. N. S. 435 ; and see Jacob v. Earl of Suffolk, Mos. 27 ; but in Ontario, it has not been customary to allow interest upon iirteres in respect of an incumbrancer's own proper debt, unless the mort. Chancery Orders 453 — 454. 267' gage expressly provides therefor. But where a subsequent incum- brancer pays o£f a prior incurnbrance, he is entitled to interest on the aggregate amount paid by him for principal, interest, and costs ; the interest on the principal being computed at the rate reserved in his own security, but on the interest, and costs, at six per cent only : McMaster v. Hector, 8 C. L. J. N. S. 284. 453- If the decree directs a sale instead of foreclo- saie,— proceed- sure on default in payment, then on default being made, * and an order for sale obtained, the premises are to be sold, with the approbation of the Master, and he is to settle the conveyance to the purchaser in case the par- ties differ about the same ; and the purchaser is to pay his purchase money into Court, to the credit of the cause, subject to the further order of the Court. This Order is in force in all the Divisions of the High Court. Its provisions are extended however by Eules S. 0. 331 and 337. By Rule S. 0. 331, where a sale is ordered, the Master may cause Master may, the property, or a competent part thereof, to be sold, either by ^?''^ '■^^^^ i^' ^' public auction, private contract, or tender; or part by one mode, der| or private and part by another, as he may think best for the interest of aU reserved' bid or parties ; and he may fix an upset price, or reserved bidding, but"P^^*P™*' such price, or bidding, must be so fixed at the meeting held by him for the purpose pf settling the advertisement, and making the other arrangements preparatory to the sale, and must be notified in the conditions of sale. The Master is to settle all necessary convey- Settle all cou- ances for the purpose of carrying out the sale, in case the parties ^^J'*"''^'' differ ; or in case there shall be any persons under any disability (other than coverture) interested in such sale. Before a sale can take place, a final order must be obtained. See Ord. 451 ante note. It ia the Master's duty not to sell the whole, when it is clear that ^ijj,le should a sale of part would suffice for the payment of the incumbrances, not be sold where When the mortgagor thinks more land is offered for sale than is necessary, he should object at the settlement of the advertisement. It is too late to take the objection after the sale : Beatij v. Baden- hurst, 3 Chy. Ch. R. 344. 454. The purchase money, when so paid in, is to be P^c.^semojey.- applied in payment of what has been found due to the plaintiff and the other incumbrancer or incumbrancers ;268 Chancery Order 455. Residue of pur- ■ chaae money, 7I10W disposed of. (if any), aceoi'ding to their priorities, together with sub- sequent interest, and subsequent costs, when computed and taxed by the Master. This Order is in force in all the Divisions of the High Court. Even after a sale, a dom-ess was allowed to come in and prove her claim : Hyde v. Barton, 8 P. E. 205. This Order makes no provision for the disposition of the residue, after payment of the claims of the plaintiff, and other incumbrances. A motion may be made by the mortgagor, before a J udge in Cham- bers, for payment of the residue. Since 11th March, 1879, a wife barring dower in a mortgage, does so only for the purpose of the mortgage, and is consequently dowable out of any surplus after satisfying the mortgage debt. It wiU therefore be necessary when- ever this right exists, that the wife should be notified, and provi- sion made for her protection, in any order directing payment out of the surplus : 42 Vict. t. 22 (0) ; Martindale v. Clarkson, 6 App. R. 1. Order for pay- 455- In the evcnt of the purchase money being in- ciency may be sufScicnt to pav what has been found due to the plain- obtainedjWtien. i. - ^ tiff for principal, interest, and costs, subsequent interest and subsequent costs, the plaintiff' is to be entitled, (where the mortgagor is a defendant, and such relief is prayed by the bill,) to an order ex parte for the pay- ment of the deficiency. This Order is now in force in all the Divisions of the High Court. Judgment on Where a personal order for payment is claimed by indorsement grantwfo™*^ * °" *he writ, that relief may now be awarded by the judgment in praecipe. tjjg gj.g(; instance, without waiting for the ascertainment of the deficiency : see Rules, S. C, Forms Nos. 168, 169. Where the judgment is for foreclosure, accompanied by a personal remedy for payment of the mortgage debt, if the mortgagee, after obtaining a final order for foreclosure, enforce the judgment for pay- ment, by issuing execution, or otherwise, he thereby opens the fore- . closure. It he have, in such a case, parted with the mortgaged pro- perty after obtaining the final order, any further proceedings to enforce the payment of the debt will be restrained on motion : is ante, Ord. 451, note. Order for pay- Xhe order for payment of deficiency can only be granted where there is a personal liability to pay. Where there is no contract to If, after forecJo. sure, judgment on covenant .enforced, fore- closure opened. Chancery Okder 456. 269' pay the debt between the plaintiff and defendant, or no privity ciency, only between them, the order will not be granted, even though the de- fheiels Tp™ fendant have agreed with some third party who is liable to the *°'"'' liability, plaintiflf, to assume and pay the mortgage debt : Christie v. Dowker, 10 Gr. 199 ; 10 U. C. L. J. 161 ; Clarkson v. Scott, 25 Gr. 373 ; Norris v. Meadows, 28 Gr. 334; and other cases cited in note to Ord. 426. In the absence of an express covenant in the mortgage, the law will imply a contract to repay : Sutton v. Sutton, 48, L. T. N. S. 95 ; but there must be evidence of a debt, or loan : Hall v. Morley, 8 U. C. Q. B. 584 ; Pearman v. Hyland, 22 U. C. Q. B. 202 : Jachson v. Yeomans, 19 C. P. 394; Jackson y. Yeomans, 28 U. C. Q. B. 307 ; S. C. 39 U. 0. Q. B. 280. 456- An incumbrancer made a pai'ty in the Master's incumbrancer office, and entitled to, and desiring- a sale of the reort- a foreclosure . . *= Buit, in the M.O., gaged premises, is to make the necessary deposit there- may apply for a for before the Master's report is settled, whereupon the EegistT'ar is to issue an order on prcecipe directing a sale of the mortgaged premises instead of a foreclo- sure, and thereupon the Master is to compute subse- quent interest, and appoint a time and place, or times and places,, for payment ; and all subsequent proceed- ings are to be taken and had as if the decree had been in the first instance a decree for sale. This Order is now in force in all the Divisions of the High Court. The powers conferred by this Order were not extended under the , • , , , T^ i T, ■ i 1 ii i 1 Powers conferred' former practice to the Deputy Kegistrars ; and there appears to be by Ord 456 not nothing in the Sules S. G. to extend the powers hereby conferred to o^'^^" s^'^ '° '°°'^' Local Registrars, Deputy Registrars, or Deputy Clerks of the Crown. All applications under this Order therefore should be made to the Registrar of the Division in which the action is pending. The prcBcipe should show on whose behalf the application is made, p^^^^^ fy,. and should also state that the applicant, is an incumbrancer, made order for sale in a party in the Master's oflnce, who has proved a claim; and that sure, form of. the Master's report has not been settled ; and should be accompanied by the certificate of the Accountant of the payment into Court of the requisite deposit of $80. An application, after the sale has taken place, to increase the Application to amount of the deposit is too late : London j -payment. for payments, or rents, which have been received after the day fixed for redemption, need not be given : see Ord. 451 note. Such pay- ments do not affect the plaintiff's right to a final order, unless indeed they amount to a total extinguishment of the debt. When notice has been duly given under this Order, the final order may be obtained notwithstanding the alteration in the state of the account, without appointing any new day. Final order may 458- Upon the final Order for foreclosure or sale being applied for, if the Judge thinks the sums named in such Chancery Orders 459—461. 271 notice proper to be allowed and paid under the circum- stances, the order for final foreclosure is to go without further notice, unless the Judge directs notice to be given. (29th June, 1861.) This Order is in force in all the Divisions of the High Court ; See notes to Ord. 451. In practice the Order has been construed as authorizing a final order for sale, or foreclosure, according as the decree, or judgment, might be for sale, or foreclosure. 459. The party to whom the mortgage money is Pa^ty receiving -xj ^ i« f\ sums £iitp6r rc" pavable, niav apply ni Chambers for a reference to aport, &c,may '■•■'■''-'■•' apply for refer- Master, or for an appointment, to fix such sums respec- ence. tively; and in the latter case either upon notice, or ex parte, as the Judge thinks fit; and the order to be made thereupon is to be served, or service thereof dispensed with, as the Judge directs. (29th June, 1861.) This Order is in force in all the Divisions of the High Court : See notes to Ord. 451. 460- The party to whom such notice is given may Party served apply in Chambers for an appointment to ascertain credit, may ap- dIv for r6f8r6iicc and fix the amounts proper to be allowed and paid, in- &o. stead of the amounts mentioned in such notice; or for a reference to a Master for the like purpose; and in case the Ju( Ige thinks a reference to a Master proper the same may be made ex parte unless the Judge other- wise directs. (29th June, 1861.) This Order is in force in all the Divisions of the High Court : See notes to Ord. 451. 461- Where a suit has been instituted for the fore- Action of fore P -, I • • closure, or sal* losure or sale of the equity of redemption m any brought for ae \ P 1 • It 1. £ fault In paymi mortp-ao-ed property, for default m the payment oi of instalment o & ri ^ ' _ .._,„, principal, 'or in „ , . . closure, or sale, closure or sale of the equity of redemption m any brought for ae- _ , . , 1 £ fault in paymel mortp-ao-ed property, for default m the payment oi of instalment S o ri ^ ' ••iipi principal, 'or i interest, or of an instalment of the principal, defend- terest may be , _ _ ._, ... dismissed on pay , . QSFmissea on pa ant may move to dismiss the bill upon paying into me. t^of arrea'rs' Court the amount then due for principal, interest, and costs. (3rd June, 1853 ; Ord. 32, s. 5.) 272 Chancery Order 461. The Order is now in effect in force in all the Divisions of the High, Court, but the motion must of course now be to dismiss the action, not "the bill." Order 461 applies, The Orcier in terms is confined to actions for foreclosure, or sale, redempttan"' but it has been held that a mortgagor bringing an action for re- demption, is within the equity of this Order : Moore v. Merritt, 6 Gr. 550 ; Dornyn v. Fralick, 21 Gr. 194 ; but see contra, Ti/lee v. Hiiiton, 3 App. E. 53 ; but a plaintiff claiming the benefit of this Order is not entitled to six months for payment of the instalment in default : Doi-nyn v. Fralick, stjpra. Mortgagee bring- A mortgagee bringing an action for sale, or foreclosure, cannot claim 6 months' ™sist on getting six months' notice of payment, or in default thereof, notice, or 6 ^ix months' interest : Letts v. Hutchins, 13 L. R Eq. 176. months* interest ' , ^ 111 default of Upon default in payment of any instalment of principal, or interest, K™]^"' °t ^^^ mortgagee has a right, without any express stipulation to that whole amount effect, to call in the whole amount secured by the mortgage : dae scomes (;<(j„j(,,.g„ y^ McRae 3 Gr. 311 : but this right may be qualified by the express stipulation of the parties, as, for instance, where there was Exception to an express proviso that in default of payment .of any instalment of interest for six months, the whole principal money should become payable, it was held that a suit for foreclosure would not lie until the lapse of the six months : Parker v. The Vine Growers' Association, 23 Gr. 179. Where there was a proviso accelerating payment of prin- Proviso accelerat- cipal and interest in the event of the mortgagor mortgaging, or ingpajment,howQjjjgj.,,,;gg incumbering, the property, or suffering it to become liable to sale for taxes, it was held that u voluntary assignment in insol- vency was not within the proviso : McKay v McFarlane, 19 Gr. 345. Under a clause accelerating payment of mortgage money in the event of default, a mortgagee who neglects to call in the mort- gage money pursuant to the proviso, cannot in a redemption suit treat the sums, of which the payment J is accelerated as- overdue,- and claim interest thereon : McLaren v. Miller, 20 Gr. 637. How far Court It was held by Spragge, C. , that even though there be an express against express stipulation in the mortgage, that in default of payment of any instal- proviso for aucel- jjjgnt the whole mortgage money shall become payable, that the erating payment ° ° e t c i ill event of mortgagor may, nevertheless, after default, claim the benefit of this uefault, qucere! q^^^^ . g^^^-^^^n ^_ ^„,.„_ 7 p, g. 331 . and see Knapp v. Cameron, 6 Gr. 559; but in Tylee v. Hinton, 3 App. R. 53, Moss, G. J. A., expressed a doubt whether the Court had any power to relieve' against such a stipulation, either under this Order, or under its- inherent jurisdiction to relieve against penalties, and forfeitures ; and see General Credit d; Discount Company v. Olegij, 48 L. T. N. S. 1S2. It cannot, theiefore, be said to be clear that the Order applies to cases where there is an express proviso accelerating' the payment of the mortgage debt in the event of default. Chancery Orders 462—463. 273 Where a defendant moves to stay proceedings under this Order, he Interest to be may obtain the stay, on payment of the interest calculated up to the gale day. last gale day, and is not obliged to pay it, up to the time of making the application : Strachan v. Murney, 6 Gr. 378 ; but, if the defendant Mortgagee plain- desires to pay off the whole amount of the mortgage debt, the ''* ''""not refuse ^ *' ° ° to accept pay- mortgagee cannot refuse to accept it : Cruso v. Bond, 9 P. R. Ill ; ment of whole 1 0. K 384, (overruling Green v. Adams, 2 Ghy. Ch. K 134.) aefendantTn Although in a redemption suit he might not be bound to accept more redemption suit, than the instalments in arrear. An application may be made after judgment has been obtained to stay proceedings on payment of the arrears : see next Order. 462. Where a suit has been instituted for the pur- After decree in pose and under the circumstances specified in the last oio8ur°e'! o^'saie, Order, a defendant may move to stay the proceedings KayedM paT- in the suit, after decree, but before sale or final fore- and costs """" "^ ' closure, upon paying into Court the amount then due for principal, interest, and costs. (3rd June. 1853 ; Ord. 32, s. 6.) This Order is in force in all the Divisions of the High Court. See notes to preceding Order. After payment has been made, under this Order, of the instalments gt^y of proceed- in arrear, it is irregular for the plaintiff to take any further proceed- "|^ ™*" O'"'^- ings in the action, until another instalment falls due : Carroll v. Hopkins, 4 Gr. 431 ; and see post Ord. 463. 463. Where an application is made to stay the pro- whereproceed- ^ ■*■ PI ^^^s stayed under ceedines under Order 462, the decree may afterwards ord. 462, on sub- ^ - sequent default be enforced, by order of the Court, upon subsequent decree may be default in the payment of a further instalment of the principal, or of the interest. (3rd June, 1853; Ord. 32, s. 6.) This Order is in force in aU the Divisions of the High Court. Where, after a decree of foreclosure, the proceedings were stayed Wlere sutee- under Ord. 462; on a subsequent default being made, the plaintiff ^"j°\^ter^"t'^._ applied to enforce the decree, and the defendant asking for a further form of order, stay on payment of the arrears, an order was made directing payment of the whole sum in six months, and in default foreclosure, with liberty to the defendant to pay the arrears forthwith, and in that event staying the proceedings, Strachan v. Devlin, 1 Ohy. Ch. E. 8. 35 '274 Chancery Order 464. Son'ma"/!?^" '''°" 464. In a suit for foreclosure or for redemption, the ^'re^o'^^J""^^' mortgagor or other person entitled to the equity of dBBnption suit, redemption, being in possession of the premises fore- closed, may be ordered to deliver up possession of the same upon or after final order of foreclosure, or for the dismissal of the bill, as the case may be. (29th June, 1861.) This Order is in force in all the Division of the High Court. Order for posses- The order for delivery of possession may now, if claimed by the incluSed in judg- Writ, be included in a judgment of foreclosure, or sale, in the first """■'■ instance : see Imperial Loan d Investment Oo. v. BouUon, 22 Gr. 121 ; Rules S. G., Forms, Nos. 168, 169 ; but where the relief has not been given by the judgment, it may still be obtained after the final order has been granted, upon application in Chambers, under this Ordnr may te Order. The Order has always been construed as applying to mort- granted where *' cr ^ o writ claims a ^^Z^ cases, where a final order for sale has been granted, as well as sale. to foreclosure suits. Order for posses- The Order has been held only to apply to mortgage cases, and not under°the^Order *° actions for specific performance against a purchaser in possession, in speeiflc per- against whom a final order for rescission of the contract has been obtained : Mavety v. Montgomery, 1 Chy.- Ch. R. 21 : Chisholm v. °rfnLd oory''' ^'^*"' ^ '^^'^- '^^ ^- ^^l' formerly the order could only be made against parties, against a party to the action, or persons who had acquired possession pa^mtelUe. pendente lite, from a party to the action, and having no pretence to a paramount title : Banlc Upper Canada v. Wallace, 13 Gr. 184 ; Mc- Kenzie v. Wiggins, 2 Chy. Ch. R. 391 ; Scott v. Bla.ck, 3 Chy. Ch. Not against R- 323; Trust & Loan Go. v. Start, 6 P. R. 90. Such an rrder tenant of mort- .^^ ^^^ granted against a tenant of the mortgagor, though the tenancy were created after the mortgage : Banh Montreal v. KelcJium, 1 Chy. Ch. R. 117 ; nor even against the mortgagor if he were in as a trespasser : Irving v. Mmin, 1 Chy. Ch. R. 240 ; but under The Judicature Act, it is probable that a more liberal construction may be placed upon the Order : see Mason v. Seney, 2 Chy. Uh. R. 30. Order for posses- '^'^® motion may be mxde on applying for a final order, or at any Bion.whenit may-fcime afterwards. Notice must be given of the application, but a de- be obtained. , , . , , , *, „ ,,. r> I , mand or possession need not be shown : Hodhmson v. French, 1 Chy. Ch. R. 201 ; Buckley v. Ouillette, 2 Chy. Ch. R. 439 ; and see Walker v. Matheios, 1 Chy. Ch. R. 232 ; but it must be shown that It should be the mortgagor is in actual possession: Hodkin" ™misse . by the plaintiff to the defendant forthwith after taxation thereof." RuleS. C. 333. 276 Chancery Order 467. Subsequent " In a redemption suit where the plaintifif ia declared foreclosed,, tafeen In rodemp- directions may be given, either by the final order foreclosing the pMn^tiff'is '"''"* Pl^i'^*'^' °^ ^y subsequent orders, that all necessary inquiries be foreclosed. made, accounts taken and proceedings had for redemption or fore- closure, or redemption or sale, as against any subsequent incum- brancers, or for the adjustment of the relative rights and liabili- ties of the original defendants as among themselves, and such order shall have the same force and effect as a judgment obtained at the suit of the original defendant. " Bute S. U, 334 ' ' Where the order is for redemption or foreclosure, or redemp- tion or sale, such proceedings are, in such case, to be thereupon had, and with the same effect as in a suit for foreclosure, or sale, and in such case the last incumbrancer is to be treated as the owner of the equity of redemption." Bule S. O. 335. The dismissal of an action for redemption by a mortgagor usually operates as a foreclosure s^^and where a bill did not pray redemption, but a decree for redemption was granted, it would seem a subsequent dismissal operated as a foreclosure : Cornwall v. Henriod, 12 Gr. 338 ;. but this is not the case where the mortgage is by deposit of title deeds, because in such a case a judgment of foreclosure would pro- vide for the execution of a legal mortgage, but the mere dismissal Exception, when of an action to redeem, cannot have that effect, though it may pre- deposit of deeds, elude the mortgagor from bringing another action to redeem : Mar- shall V. Shrewsbury, 10 L. E. Chy. 250. Where an action for redemption is brought by a second mortgagee and he is foreclosed, the mortgagor, as well as the first mortgagee, has a right to have a day appointed for the redemption of the first mort- gage by the mortgagor : McKinnon v. Anderson, 18 Gr. 684. DisinisBal of action for redemption operates as a foreclosure. Ou dismissal of action for re- demplion by a subsequent incumbrancer mortgagor may be ordered to redeem. XXXVI.— ADMINISTRATION SUITS. Creditors, lega- 467- Any person claiming to be a creditor, or a spe- heir's. or devisees', cific, pecuniarv, Or residuarv legatee, or the next of mayapplyon ' '^ / n i • i i • i ■ motion, in Cham- kin, Or onc 01 the next oi km, or the heir, or a devisee bers for adminis- traUon. interested under the will of a deceased person, may apply to the Court upon motion, without bill filed, or any other preliminary proceeding, for an order for the administration of the estate, real or personal, of such deceased person. (3rd June, 18.53 ; Ord. 15, s. 1.) Orders from 467 to 487, apply to all the Divisions of the Highi Court. Mule S. G. 3. Applications for I* '^^'^ formerly considered that applications for administration by administration motion, under this Order, should be confined to simple cases, and- nnderOrd. 467 r- ; Chancery Order 467. 277 -wherever miaoonduot was charged, a bill should be filed ■ Re Bab- 'ormerly held -coci, 8 Gr., at p. ilO ; Merts v. EbeHs, 25 Gr. 565; Acasler ^.l^!:i^\y^''''''' Anderson, 19 Beav. 161 ; Ramp v. Greenhill, 20 Beav. 512 ; and it was considered that under an administration order obtained on mo- tion against an executor, no inquiry could be made as to wilful neglect and default : Harrison v. McOlashan, 7 Gr. 531 ; although such an inquiry could be directed where the personal representative himself obtained the order : Ledgerwood v. Ledgerwood 7 Gr. 584 It IS, however, now settled, that the enquiry as to wilful neglect and Now sctilcd that default, may be made in all oases under an administration judgment rnd"defauU may granted on motion : Re Allen, Pocock v. Allen, 9 P E, 277- 18 C be inquired into 242; Carpenter y.'Wood, 10 Gr. 354; Sullivan r. Harty, 19obttf„ifuTde?' C. L. J. 234 ; and it would seem that any breach of duty which is °'*' *''■ practically a matter of account, may be effectually inquired into, and dealt with, under a judgment obtained under this Order. Where how- ™,. , T .-..,, , , " " Where any ques- ever, there is any question to be determined, before a judgment for ti?n to be deter- administration can properly be pronounced, the action should be com- rdmi2i^tmt?on jiienced';by writ. Thus, where the construction of a will was neces "^^ properly be TT 1 n' ' 1 ^ -r^ ^ ' granted, writ sary : Heywood v. Sievwright, 8 P. E. 79 ; and where the plaintiff must issue. claimed to be a creditor, and his claim appeared to be barred by the Statute of Limitations, but he claimed to avoid the operation of the Statute, on the ground of fraud on the part of the testator : Re McDonald, Cameron v. McDonald, 2 Chy. Ch. R. 29 ; it was held a bill must be filed ; and when a legatee claimed administration, and it appeared that an award had been made respecting the applicant's claim, but the applicant denied being party to the reference, it was also held a bill must be filed : Nuclei v. Elliott, 1 Chy. Ch. E. 326 • and see &room,v. Darlington, 9 P. R. 298 ; 18 C. L. J. 241. Where the application is made on motion, in a case in which the Application made Court is of opinion that a writ should be issued, an order is usuallv "•"'er Order 467 ,..,,,.., •^ in a casein which made giving the applicant a day to commence his action, in default, writ should issue, the motion to be dismissed ; but if the action be comsienced, reserv- oJd'erasTo costs, ing the costs of the motion until the trial of the action : Re McDon- ald, Cameron v. McDonald, supra. But where the plaintiff com- mences an action, instead of applying on motion, where the latter course is proper, he will be disallowed the extra costs occasioned thereby : Sovereign v. Sovereign, 15 Gr. 559 ; or if it is not clear that the action was unnecessary, the question of the additional costs will be reserved until after the Master has made his report : Eberts v. Eberts, 25Gr. 565. Applications under this Order are made in Chambers, Ord. 197 ; Jurisdiction of if, however, the motion is contested, the jurisdiction of the Master Master in Cham- ' * . oers ousted, if in Chambers is excluded, and the motion must be adjourned before motion contested. & Judge in Chambers : see Ord. 560, ss. 8 ; Ride S. C. 420. •278 Chancery Order 467. ocal Masters. Applications by adults may be made for the like purpose to the Local Master having jurisdiction in the county where the deceased died : Ord. 638 : Rule S. O. 3. A Local Master's jurisdiction is not ousted by the motion being opposed. Ord. 552 provides that, at least, fourteen days' notice of the noUce^of motfon motion must be given. This latter Order is not expressly kept in to be given. force by the Rulei S. 0. ; but Rule S. C. 88, seems by implication to keep it in force as regulating the procedure for obtaining judgment for administration. Motions for administration seem, therefore, to constitute an exception to ordinary motions which only require two clear days' notice ; Rule S. 0. 407 ; and see Exchange Bank v. Newell, 19 C. L. J. 253. The words "at least" require that the fourteen days be clear days : see Rumohr v . Marx, 19 C. L. J. 10. Parties. — The provisions of Ord. 58, 59, 60, 61 apply to proceed- ings under this Order. All parties from whom an account is sought, should be served with notice : see Ord. 58 r. 1 note. AoDlications for Creditors. — A creditor whose debt is payable, may make applica- adioiniRtration tion for administration of his deceased debtor's estate, without waiting a year from his decease. To an application by a creditor for the administration of tlie personal estate, no one but the personal representative need be made a defendant; but Where an administration Personal repre- ^ , , i j i j n . . , aeutative mast of the realty is also sought, unless the personal representative is also served. interested in the realty, — some one must also be made a party who is interested in the realty : Ord. 472. If more tha Where there are several personal representatives all must be served , one, all must be even though some be resident out of the jurisdiction : Be Freeborn, ..erved. Freeborn v. Carroll, 6 P. E. 188 ; LatcJi v. Latch, 10 L. R. Judgment not 464. The judgment for administration cannot be granted as against cMcator°Ie soji ^^ executor de son tort where there is no legal personal representative ""■'• before the Court : Rowsell v. Morris, 17 L. E. Eq. 20. Nor against an executor named in the will who has not proved the will : Outrcem v. Wyckhoff, 6 P. E. 150. See further as to parties ante Ord. 58 r. 1 note, „ . , On the motion, the applicant must be prepared with proof that the quired on ap])!i- defendant is the personal representative : ordinarily, the letters of ■rant of probate administration, or lettei'S probate, should be produced : Re Mar- or administra- ' gii^ll. Fowler V. Marshall, 1 Chy. Ch. E. 29 ; Re Israel, 2 Chy. Ch. E. 392. But where the plaintiff swore that the defendant was administrator, and the fact was not disputed, production of the letters, was dispensed with : Re Bell, Bell v. Bell, 3 Chy. Ch. E. 397- It is sufficient if the letters of administration be granted at any time before the hearing of the motion, even though subsequent to giving the notice : Edinburgh Life Assurance Company v Chanceey Oeder 467. 279 Allen, 19 Gr. 593. Where the motion was refused on the grouud that the personal representative was not a party, only, the costs necessary to raise that objection were allowed : Irwin V. Buck, 6 P. R. 183. The creditor applying must also give, prima facie evidence of his claim as creditor ; Re Clarke, 2 Chy. Oh. R. 57 ; and where his claim is disputed, he must establish his claim Proof "f app'"- ■^ cautfi cla'iu. by proper evidence — his own uncorroborated evidence, is insuffi- cient ; Vivian v. Westbrooke, 19 Gr. 461 ; see R. S. 0. c. 62, s. 10 : and as to nature of corroboration required see Stoddart v. Stoddarl, 39 U. C. Q. B. 203 ; Sugdenv. Lord St. Leonards, 1 L. R. P. D. 154. 179 ; McDonald v. McKinnon, 26 Gr. 12 ; McKay v. McKay, 31 C. P. Corroboration 1 ; Adamson v. Adamson, 28 Gr. 228 ; Brovm v. Capron, 24 Gr. 91 ; contested. llalleran v. Moon, 28 Gr. 319 ; Re Laws, Laws v. Laws, lb., 382; Re Robbins, 23 Gr. 162 ; Re Ro-is, 29 Gr. 385 ; 18 G. L. J. 11 : Par- ker V. Parker 32 0. P. 113 ; Watson v. Severn, 6 App. R. 559 ; Watson v. Bradshaw, lb., 666 ; Cook v. Grant. 32 C. P. 511 ; Re Murray, 29 Gr. 443. The creditor must be a creditor of the deceased person whose Applicant must estate is sought to be administered. Where the applicant was merely ^^ creditor of the * ° deceased, and not a creditor of the personal representative for advances made to him merely of hi? as such, the application was refused : Campbell v. Bell, 16 Gr, 115 .SaUm^""" Farhall v. Farhall, 7 L. E,. Chy. 123 ; Re Pettee, McKinley v. Beadle, 6 P. R. 157 ; Owen v, Delamere, 15 L. R. Eq. 134 ; Ewart v. Steven, 1 8 Gr. 35 ; Seton, 916 ; and see Henry v. Sharp, 18 Gr. 16. Creditors, whose debts are incurred by the executor, in carrying on a business of his testator, are entitled to indemnity out of the deceased's estate to the extent, if any, which the executor is entitled : Re Johnson, Shearman v. Robinson, 15 Oh. D. 548 j 43 L. T. N. S. 372 ; and a plaintiff, who had made advances to pay the debts of a deceased Creditor of per- person, to save the estate the costs of suits to recover them, was held t°"ef Jhei^em '■*" entitled to administration : Glass v. Munsen, 12 Gr. 77 ; see also, tied to resort to Mills V. Cottle, 17 Gr. 335 ; Strickland v. Symons, 48 L. T. N. S. 188 ; Sent" "' ''°'^' which were cases of advances to trustees. A judgment for administration, is equivalent to a judgment in Effect of judg- favour of all the creditors of the estate, but creditors who are not ™™tio''n L "to"' parties to the action, can only claim the benefit of it from its date, as °^^™^gj^^ """"■ to the claims of the latter, the running of the Statute of Limitations is not stopped, until the judgment is obtained : Re Greaves, Bray v. Tojield, 18 Oh. D. 551 ; 45 L. T. N. S. 404; Manby v. Manby, 3 Ch. D. 101 : but see Crooks v. Crooks, 4 Gr. at p. 619. The personal representative is not bound to set up the Statute of ft'?'^"'^^"^^''™'^*" Limitations as a bar to a creditor's claim : Lewis v. Rumney, 4 L. R. be set up by Eq. 451 ; and if the personal representative, and such of the par- sentativ'e"'"^''' ties beneficially interested, as are parties to the suit, or who have 280 Chancery Order 468. come in under the judgment, do not set up the Statute, the Court is not bound on behalf of absent parties beneficially interested, to dis allow claims against the estate which are barred by the Statute ; Alston V. Trollope, 2 L. E. Eq. 205. An order for the administration of the estate of the owner of the equity of redemption, does not stop the running of the Statute in favour of the mortgagee in possession . Where right of Crooks v. Watkins, 8 Gr. 340. Where a cause of action accrues in the act'.on accrues in lifetime of debtor lifetime of the creditor the Statute begins to run against him, and con- thouo-h no'per- tinues to run against his estate, notwithstanding there is no executor, sonal repre.ien- or administrator : but where the cause of action does not accrue until tative appointed: . . ., , . Secun. if it did after his death, then the time does not begin to run until there is a after ^hisdeaa'" Personal representative : Grant v. McDonald, 8 Gr. 468 ; Stevenson V. Hodder, 15 Gr. 570. A claim cannot be kept alive by any ac- knowledgement or payment by an executor de son tort, lb., Boat- wright v. Boatwright, 17 L. E. Eq. 71. Proceedings may Proceedings by a creditor may be stayed on the application of any plication of ° ny" person interested in the estate, on payment of his claim and costs : person interested J?i«e» v. Dawson, 3 Chy. Ch. E. 461 : Re Henderson, 26 Gr. 297 ; 15 in estate. > J > ' C. L. J. 132. Applications for Legatees, Next of Kin, &C.— Applications by legatees, or next administration .,., ,-- . , , ., ,, r by legatees, or of Kill, for aamiiiistration, cannot be made until the lapse of a year ;;^f^°*jjf^j"j'=''°- from the death of the deceased: 33 Geo. III., c. 8 (Imp.) Slater v . until lapse of a Slater, 3 Chy. Ch. E. 1 ; Vivian v. Westhrooke, 19 Gr. 461. When ' the action is brought unnecessarily, the legatee may be ordered to pay the costs of all parties : Re Woodhall, Oarbuttv. Hewsoii, 2 0. E, 456. Wherever a legatee, if alive, may apply, his personal repre- Personal repre- presentative, in case of his death, can also apply : Simpson v. Home, deoeaaIid^le°Itee ^® ^'"- ^- "^^ to parties to applications by legatees : see Ord. 58 note. may apply. An application for administration by an infant, by his next friend, was granted on the mere suggestion that it would be for his benefit : Re Wilson, Lloyd v. Tichborne, 9 P. E. 89. But where it turned out that a suit had been brought unnecessarily by an infant, his next Legatee ordered friend was ordered to pay the costs of it; Hvtchinxon v. Sargent, 17 to pay costs of q^ g jf,fi; j^n^^ew v. Laflamine, 19 Gr. 193 ; Moodie v. Leslie, 12 Gr. unnecessary suit. ' ./ > ? > 537 ; and see Re Johnston, Johnston v. Hogg, 25 Gr. 261 ; Carroll v. Carroll, 23 Gr. 438. Application for An administration suit should not be instituted on behalf of shiuld not be infants, where the object is simply to obtain an allowance for their made on behalf maintenance out of the estate, which can be as readily got by appli- of iQfants.merely j o j re to get mainten-, cation under Ord. 527 et seq. ; Fenwick v. Fenwick, 20 Gr. 381 ; ''°°^- Ooodfellow V. Rannie, lb., 425. of m)tion°for 468. The notice of motion is to be in the form or to the effect set forth in schedule U hereunder written, Chancery Order 469. 281 and must be served upon the executor or administra- tor. (3rd June, 1853; Ord. 1.5, s. 1.) Where the motion ia to be made before the Master in Chambers, the notice should be varied to the efifect prescribed by Ord. 561 . c. !/., " Take notice that an application will be made to the Master in Chambers on &c. ; or, if opposed, then to a Judge in Chambers, as soon thereafter as a Judge shall be sitting in Chambers in the — Division, &o." Where infants are intended to be served with notice of the motion. Guardian ad a guardian ad litem mus.t be appointed to them. The procedure ^'|^™j^°jjJ"''5JJj'^ provided hy Exile 8. G. 36, for the appointment of guardians a(i to he. appointed. litdin to infant defendants, made parties by writ, does not appear to extend to applications for administration under these Orders. The appointment of a guardian ad litem for this purpose, should be made by order obtained on. praecipe under Ord. 610, post. Where the administration of the realty is sought, notice must be Heir or devisee given to the heirs, or devisees, or one or more of them : Ord. 472. ^rved'°''° Next of kin, and legatees, need not be served with notice of tlie Legatees, and motion, but they must be served with an office copy of the judg- notto^seived.^'^'' ment, as prescribed by Ord. 60 ante : See note to that Order. 469- Upon proof by affidavit of the due service of upon proof of ,1 !_• n L' 11 • service of notice, tne notice or motion, or on the appearance m person, or on appearance or by his solicitor or counsel, of the executor or admin- presentative, 4c. , istrator, and upon proof by affidavit of such other istration maybe . granted. matter, if any, as the Court requires, the Court may make the usual order for the administration of the estate of the deceased, with such variations, if any, as the circumstances of the case require ; and the order so made is to have the force and effect of a decree to the like effect made on the hearing of a cause between the same parties. (3rd June, 1853 ; Ord. 15, s. 1.) The affidavit on which the application is founded should be filed Affidavit in sup with the proper officer, before the notice of motion is served. tkm to to'' filed. The affidavits should establish the facts and circumstances necess- Evidence in sup. ary to entitle the applicant to the administration. As to obtaining oral Port. how ob- evidence in support of the motion : see Ord. 266, ante ; see further as to the evidence required, Ord. 467 note. A commission may be issued after notice of motion served, for the purpose of obtaining evidence in support of the motion : Farrell v. Cruikshanh, 1 Chy Ch. R. 12. 36 282 Chancery Oeder 470. Order for admin- The order for administration is now in effect a judgment,^ and is !« a judgment, so entered, as required in tlie ease of other judgments ; see Bule S. C. 325. But in McHenry v. Lewis, 47 L. T. N. S. 549, an interlocu- tory order for an account without any declaration of right was hehl not to be a judgment. But that case it is apprehended does not conflict with the practice as above stated ; because an order for ad" ministration can only be properly granted after an adjudication on the question of the applicant's right to the account claimed. Where any preliminary question has to be determined, as has been already pointed out, the Court will generally require an action to be brought ; see ante Ord. 467, note. Distribution of Where the personal representative has distributed the estate, after estate after July advertising under R. S. 0. i;. 107, a. 34, that is an answer to adTertisement — '' • ^ i an answer to the application ; see Ord. 58, r. 1 note. application. The fact that the estate was small, and that no misconduct was- refused when imputed to the executors, and that it was unadvisable to incur ex- estate trifling, pense, was held to be no ground for refusing the application of a legatee for administration . lie Falconer, 1 Chy. Ch. R. 273. \Vhere, how- ever, the executor swore that the personal estate did not exceed $50, the Court, before granting the order, required the applican who was one of the residuary legatees, to file an affidavit stating that he had reason to believe, and did believe, that the result of the proceedings would show a, substantial balance to be divided among the legatees : Foster v. Foster, 19 Gr. 463 ; and see West- broolce v. Browett, 17 Gr. 339 ; Shaw v. Freedii, 8 C. L. J. N". S. 136; Gilbert v. Braithwait, 3 Chy. Ch. E. 413. Orolaimofappli- Administration was refused on the application of a legatee whose cant under $40. claim only amounted to $28, although it was alleged that other claims to a considerable amount remained unpaid ; Beynolds v. Coppin, 19 Gr. 627. Special direc- 470- The Court is to give any special directions gi^en respe'fting toucMng the carriage or execution of the order, which carriage of order, j^ decms expedient; and in case of applications for any such order by two or more persons, or classes of persons, the Court may grant the same to such one or , , more of the claimants as it thinks fit ; and the carriage Carriage of order ' t? may be subse- gf \^q Order may be subsequently given to any party quently changed. -^ j. »/ o j r j interested, and upon such terms as the Court may direct. (3rd June, 1853 ; Ord. 15, s. 1.) Where two or more applications are made by different persons Several apphca- ^^ . *' ^ tions — only one under this Order, only one judgment for administration should be Chancery Order 471. 283 granted; and the Court may determine whioh of the applicants Judgment should shall have the carriage of it. The rule being to give the conduct of the proceedings cceteris paribus, to the party most interested in pro- secuting them properly and economically : Perrin v. Perrin, 3 Chy. Oh. R. 452 ; Be Adams, Adams v. Muirhead, 6 P. R. 283 ; Be.Prime, 48 L. T. N. S. 208; Penny v. Francis, 7 Jur. N. S. 248. But see Cf riago of, to Ti r, . , , , whom given. Re Sioire, Mellor v. Swire, 46 L. T. N. S. 437. The carriage of the judgment may be changed in case of delay : Patterson v. Scott, 4 G-r. 145 ; and see Ord. 211, 212 note. 471. An order for the administration of the estate order for admin- „ ■ i.=itration may be 01 a deceased person may be obtained by his executor obtained by por- i- fj y™pp'ementai notice given to those interested in the real estate, or to one or more of them, make a supplemental order in respect of the real estate, upon such terms as the Court sees fit. (20th Dec. 1865 ; Ord. 13 ) It is now customary, wherever an administration of the realty is J^yJ^ ^™ealtv likely to be required, to serve all the parties necessary to be served, required, order in order to obtain an administration of both realty, and personalty, gj^t instance, and a judgment is then awarded for the administration of both the realty and personalty. And whenever the realty is the primary fund for the payment of debts, it is absolutely necessary that this should be done. As to the parties to be notified in order to obtain an administra- tion of the realty, see note to preceding Order. 474. In taking an account of a deceased's personal M-terto^in,u^^^^ estate under an order of reference, the Master is to'=='^'<'- inquire and state to the Court what, if any, of the deceased's personal estate is outstanding or undisposed of; and is also to compute interest on the deceased's ^^^^^'"t'^^^'t^ debts from the date of the decree, and on legacies from *■"* '^s;^"''- the end of one year after the deceased's death, unless any other time of payment is directed by the will. (:3rd June, 1853; Ord. 42, s. 14.) 286 Chancery Order 474. Mr'^d""' *°ri/. '^^^ Master ought not to proceed ex parte, even though the defend- ant did not appear on the motion for administration : Jackson v. Matthews, 12 Gr. 47. neceBsarr t^'^b™^ Before proceeding to take the accounts, the Master should require served with judg- the necessary evidence to be brought before him, to shew who are the parties, if any, who ought to be served with an office copy of the judgment as prescribed by Ord. 60. The Master should direct on whom the judgment is to be served, and he may also dispense with service, on any parties, as he may think fit ; but he must state his reason for so doing in his report : see Ord. 587. Service may be Service may be dispensed with on parties whose apparent interest is small, and where there is difiiculty in effecting service, and other parties in the same interest are already represented, or directed to be served with the judgment ; mere difficulty in eff'eoting service would not alone be sufficient ground for dispensing with service. Persons served Parties who are served with an office copy of a judgment under parties to the 07'd. 60 do not thereby become parties to the action, they merely action. acquire a right to attend the proceedings on giving notice of their desire to do so to the plaintiff''s solicitor, but they are bound by the proceedings as though they were actually parties to the action. Plato tiff °s''r^' '° Parties so served may give notice to the plaintiff of their desire tor may attend to attend the proceedings, and are then entitled to be served with the procee ings. appointments in the Master's office, and with notice of the hearing on further directions : but when a person served with the judgment, does not notify the plaintiff of his desire to attend the proceedings, he is not entitled to notice of the proceedings in the Master's office, nor of the hearing on further directions, if any : see Ord. 60 note. But if attending) Persons so attending, however, are not, as of course, entitled to unnecessarily , will not be enti- the costs of so domg out of the estate, and unless the Court is tied to costs. satisfied that there was some good reason for their so attending they will be left to bear their own costs in any event. Parties served Parties served under Ord. 60 cannot be required to account : see are not liable to ^ account. Ora. 58 r. 1 note. Master may add Where the Master finds any persons (not coming within Ord. 60), parties. ought to be made parties, and enabled to attend the proceedings, he may add them as parties,, under Ord. 244. Persons added under that Order become parties to the action, as if they had been original- ly made parties to the writ. Interest to be The direction contained in Ord. 474, as to the allowance of interest ■ on debts, applies to debts not bearing interest, prior to the date of the judgment. The judgment for administration as has been said Chancery Orders 475 — 476. 287 operates as a iudement for all the creditors of the estate for the •'"'^K™™' *?'' ^ •! o admiDistratioii amount of their respective debts, and consequently from that date operates as a they bear interest ; but where a creditor is entitled to interest from j",f ""Jf ^j" any prior date, by virtue of any statute, or any contract, expressed or creditors, implied, the Master may allow such interest. But where a sum is payable at a certain day, with interest, there is no implied contract Bate of interest to pay interest at the same rate after default ; and even where the paya^We- same rate has been paid for many years after default, there is no im- plied contract to continue doing so : Be Roberts, Ooodchap v. Roberts, 14 Ch. D. 49 ; 42 L. T. N. S. 666 : Coolce v. Fowler, 7 L. R. H. L. C. 27; Dalby v. Humphrey, 37 tJ. C. Q. B. 514 ; Simonton v. Graham, 8 P. E,. 49.5 ; as to what is a sufficient demand of interest within the Stat- ute R. S. 0. c. 50, s. 267, ss. 2 ; see Gealee v. Ross, 32 L.T. N. S. 666. Interest on legacies charged on land, bear interest from the testa- interest on lega- tor's death ; but where the legacy is payable out of the proceeds of "'^^^ the sale of land, the interest does not run until , a year from the death : Turner v. Buck, 18 L. R. Eq. .SOI. For form of report, see Schedule to Ord. 589. 475. Every advertisement for creditors affecting the Advertisment for ... creditors, form of. estate of a deceased person, which is issued pursuant to an order, is to direct every creditor, by a time to be thereby limited, to send to such other party as the Master directs, or to his solicitor, to be named and described in the advertisement, the name and address of such creditor, and the full particulars of his claim^ and a statement of his account, and the nature of the security (if any) held by him ; and such advertisement is to be in the form set out in schedule V form No. 1, with such variations as the circumstances of the case require ; and at the time of directing such advertise- ment, a time is to be fixed for adjudicating on the claims. (23rd Dec. 1865 ; Ord. 22.) Where the Master finds that there has been a proper advertisement where adverti«!. for creditors, under R. S. 0. c. 107, ». 34, he may dispense with any torsha°JScn'' further advertisement without any special direction so to do ; Outh- jf^^^'^'J; J"^„t' bert V. Wharmby, W. N. (69) 12 ; Seton, 805. may be dispensed with. 476- No such creditor need make an affidavit, or Affidavit of orej- ., , . itor dispensed attend in support of his claim (except to produce his with unless re- security, if any), unless he is served with a notice 288 ChaKvJERY Orders 477—478. requiring him so to do, as hereinafter provided. 20th Dec. 1865 ; Ord. 23.) Parties entitled No person, except the personal representative, is entitled (except adju^ration'on by leave of the Master) to appear on the claim of any person not a creditor's claim, party to the cause, against the estate of the deceased, in respect of any debt or liability. But the Master may direct any other party to the cause to appear, either in addition to, or in place of, the per- sonal representative, upon such terms as to costs or otherwise as he shall think fit : See SaUs S. 0. 114, 518. Creditors not to Creditors merely sending in their claims pursuant to advertisement, be allowed costs, ought not to be allowed any costs of so doing : but where they are required to go into formal proof thereof, the Master may fix a sum for costs, or allow taxed costs of proving the claim : See Ord. 225, and see post Ord. 478. Notice to creditor -^ notice to a creditor requiring him to make an affidavit in sup- to prove claim port of his claim, may be transmitted by post, pre paid, addressed may be posted. ^ ,. ,. ,. .^ c. ^ , ^c / to him or his solicitor : bee Ord. 487, post. „ When a creditor's claim is disputed, he may be required to pro- CTidence. duoe corroborative evidence thereof ; See if. S. 0. u. 62, a. 10 ; and see cases Ord. 467 note. Creditors to pro- 477- Every such creditor is to produce before the uce secun les. jyjg^g^gj.^ ^^le security (if any) held by him, at such time as is specified in the advertisement for that purpose, being the time appointed for adjudicating on the claims ; and every creditor, if required by notice in writing, to be given by the executor or administrator And other doc- O' o ./ uments, if noti- Qf the deceased, or by such other party as the Master directs, in the form set forth in schedule V form No. 2, is to produce all other deeds and documents neces- sary to substantiate his claim before the Master, at such time as is specified in the notice. (20th Dec. 1875 > Ord. 24.) Notice may be The notice to produce documents in support of his claim, may be posted. transmitted to the creditor, by post, addressed to him or his soli- citor, if any : See Ord. 487, post. Creditor neglect- 478. In case a Creditor neglects or refuses to comply documents not to with the ucxt preceding Order, he is not to be allowed be allowed costs. ■*■ ^ Chancery Orders 479 — 482. 289 any costs of proving his claim, unless the Master otherwise directs. (20th Dec. 1865 ; Ord. 25.) 479- The executor or administrator of the deceased, oreciitnrs' daima or such other party as the Master directs, is to exam- by'^pe^nTrre ine the claims sent in pursuant to the advertisement, SS"per80D." and is to ascertain, as far as he is able, to which of such claims the estate of the deceased is justly liable. (20th Dec. 1865 ; Ord. 26.) 480. The executor or administrator, or one of the Affidavit to be executors or administrators, or such other party either ™miJog"rfd- alone or jointly with his solicitor, or other competent ' °" " """'' person, or otherwise, as the Master directs, is, at least seven clear days before the day appointed for adjudi- y,i^^^ t„ ^e died cation, to file an affidavit which may be in the form jorm of. No. 3, in schedule V, verifying a list of the claims, the particulars of which have been sent in pursuant to the advertisement, and stating to which of such claims, or parts thereof, repectively, the estate of the deceased is, in the opinion of the deponent, justly liable, and his belief that such claims, or parts thereof repectively, are justly due, and proper to be allowed, and the reasons for such belief. (20th Dec. 1865 ; Ord. 26.) 481- In case the Master thinks fit so to direct, the Time for making making of the affidavit referred to in the next pre- postpone""'^ ""^ ceding Order, is to be postponed till after the day appointed for adjudication, and is then to be subject to such directions as the Master may give. (20th Dec. 1865 ; Ord. 27.) 482- At the time appointed for adjudicating upon Adjudication on the claims, or at any adjournment thereof, the Master may allow any of the claims, or any part thereof respectively, without proof by the creditors, and may direct such investigation of all or any of the claims not allowed, and require such further particulars, infor- 37 290 Chancery Order 483. Master cannot employ experts maTb= r'J^lred nation, or evidence relating thereto, as he thinks fi t and may, if he so thinks fit, require any creditor to attend and prove his claim, or any part thereof ; and the adjudication on such claims as aie not then sdlowed is to be adjourned to a time to be then fixed. (20th Dec. 1865 ; Ord. 28.) The Master has no power under this Order to employ experts to assist him in coming to a conclusion on the claims of persons claim - ing to be creditors : Ea Robertson, Roherlson v. Robertson, 24 Gr. 555. >[ortgagee may A mortgagee is entitled to prove agxinst the general estate, and Kenerat^estate. hold his security for any amount the general estate is insufficient to acid hold sBcurity pay : Re Stewart, Stewart v. Stewart, 10 Gr, 169. Where on a for deficiency. , !^ . i i • deficiency of assets, some creditors are paid more than their pro- portion, they may, on the petition of a creditor who has not been paid his proportion, be ordered to refund the excess : Chamberlen v. Olarhe, 1 0. E. 135. Notice to cred- Where the Master requires a creditor to attend and prove his claim may be claim, the notice so to do may be transmitted to him or his solicitor posted. by post, unless the Master^otherwise directs : See Ord. 487, post. Notice to be sent 483. Notice is to be ffiven by the executor or admin- creditor.,'. ^ . istrator, or such other party as the Master directs : 1. To every creditor whose claim, or any part thereof, has been allowed without proof by the creditor, of such allowance, and such notice may be in the form No. 4 in sched- ule V. 2. And to every such creditor as the Master directs to attend and prove his claim, or such part thereof as is not allowed, by a time to be named in such notice, (which may be in the form No. 5 in schedule V,) not being less than seven days after such notice, and to attend at a time to be therein named, being the time to which the adjudication thereon has been adjourned; and in case any creditor does not comply with such notice, his claim. Where claim allowed without Proo f. Wliere proof of claim is required. Chancery Orders 484— 48G. 29 L or such part thereof as aforesaid, is to be dis- allowed, unless the Master thinks fit to give further time. 20th Dec. 1865 ; Ord. 29.) The notice may be transmitted by post, prepaid, to the creditor or hia solicitor, unless the Master otherwise directs : See Ord. 487, post. 484. A creditor who has not before sent in partieu- creditor may ^ Fendm particu- lars of his claim pursuant to the advertisement, may seven'dayi'beforo do so seven clear days previous to any day to which l^^ammtioa^'"^ the adjudication is adjourned. (20tli Dec. 1865 ; Ord. 30.) «ij»»™"i. 485. After the time fixed for the advertisement, no ^fter expUy of ' time lime limiteu ■claim is to be received (except as before provided in^o'rfll^r'dltoB' case of an adjournment,) unless the Master thinks fit "^J'^'^^^l^j^y to give special leave upon application, and then upon'**"^- such terms and conditions as to costs and otherwise as the Master directs. (20th Dec. 1865 ; Ord. 31.) An application of a creditor to prove after the time has elapsed, is nsually granted ; but on the terms of not disturbing any division of assets which has actually been made : Re Metcalfe, Hicks v. May, 42 L. T. N. S. 383 ; 13 Oh. D. 23S ; 49 L. J. Ch. 192. 486. Where an order is made for payment of money Creditors to be '^ •' . . -^ notified when out of Court to creditors, the party whose duty it is to their claims are ' ir 'J ^ .J ^ payable out of prosecute such order is to send each creditor, or his ^^o"'''- solicitor (if any,) a notice that the cheques may be obtained from the Registrar ; and such notice may be in form No. 6, in schedule V, and such party is, when required, to produce any papers necessary to enable *'<»«'<'' ""'i" the creditors to receive their cheques. (20th Dec. 1865; Ord. 32.) Creditors who have proved claims, but who are not parties to the action, are not entitled to notice of the hearing on further direc- tions, or to the application for distribation : Lavin v. O'Neill, 13 Gr. 179. Creditors who have received more than their share, may be ordered to refudd, on the application of a creditor who has not received his proper proportion . Chamberlen v. Clarke, 1 0. R. 135. 292 Chancery Oedees 487 — 489. to S'to Medit- 487. Every notice by these Orders, required to her «"• given is, unless the Master otherwise directs, to be deemed sufficiently given and served if transmitted by post, prepaid, to the creditor to be served, according to the address given by the creditor in the claim sent in by him pursuant to the advertisement, or, in case the creditor has employed a solicitor, to such solicitor, according to the address given by him. (20th Dec. 1865 ; Ord. 33.) XXXVIL— ALIMONY SUITS. Ord. 488. Order 488 prescribed a form of indorsement to be made on the ofEce copy biU, in alimony suits, where the plaintiflf required an allow- ance for alimony pendente lite. The Order is now superseded. iltMim alimony 489- No application for interim alimony, or costs, is made. ""*^'"' to be made until the time for answering has expired. Ord. 489 still in Interim Alimony. — This Order was held to be still in force : Peck V. Peck, 18 C. L. J. 265 ; 9 P. R. 299. For form of indorse- ment on writ, of claim for interim alimony : see Rulis S. C. Form 9 k. If the indorsement is omitted, an application for interim alimony may be made, but in such case it will only run from the date of the order; and no costs of the motion will be allowed: Peterson v. Peterson, 6 P. R. 150. The application may be made at any time after a statement of defence has been filed : Gorman v. Gorman, before Proudfoot, V. 0., 20th September, 1875 ; or after the time for delivering it has expired : Peck V. Peck, supra ; unless the defendant has given notice under Ord. 490. Interim alimony Interim alimony is allowed, when necessary, for the maintenance ot the plaintiff: Soulesv. Soules, 3 Gr. 113; Thompson v. Thomp- son, 1 L. R. P. & D. 553, but not as of course, and if the plain- tiff is shown not to be in need of support, it may be refused : Bradtey v. Bradley, 3 Chy. Ch. R. 329 ; Smith v. Smith, 6 P. R. 51. From what date Interim alimony is payable from the date of the service ot the writ, if there has been no delay in making the application : Howe v. Howe, 3 Chy. Ch. R. 494 ; and the claim for interim alimony be indorsed on the writ : Peterson v. Peterson, 6 P. R. 150. Evidence re- On ^ motion for interim alimony, it is sufficient it a de facto quired on mo- marriage be proved: Taylor v. Taylor, 1 Chy. Ch. R. 234; its tion for interim ° ^ . t^ ,, n -,, alimony. validity cannot be enquired into : Bradley v. Bradley, supra ; Nolan Chan(;ery Okoer 489. 293 V. Nolati, ] Chy. Ch. E. 368 ; Carr v. Can; 2 Chy. Oh. R. 71 ; nor can any question affecting the merits of the action ; thus, alleged adultery by plaintifif, cannot be raised on such an application : Campbell v. Campbell, 6 P. R. 128 ; nor the question whether plaintifif is justified in leaving the defendant : Wilson v. Wilson, lb., 129 ; KeUh v. KeXth, 7 P. R. 41. The plaintifif is usually required to undertake to proceed to a trial Plaintiff must of the action at the next sittings ; but when the defendant neglected proceedto'wal to pay the alimony, and the plaintiff was left without means of taking at next sittings, the case to trial, the undertaking was extended : Bownlaugh v. Bowslamjh, (i P. R. 200 ; and where the cause had been entered for trial, it was ordered to stand over, until a sum sufficient to pay plain- tifif's witnesses was paid by defendant ilHajTey v. Haffey, 7 P. R. 137. It would seem that the plaintifif's solicitor has no lien for his costs Plaintiff's solic- ou moneys paid to him for interim alimony : Cross v. Cross, 43 L.T. on'interim au" N.S. 533. mony for cost. Interim alimony is allowed only from the service of the writ : TJwmpsuii V. 'J hompson, 19 C. L. J. 2t52. Where interim alimony had not been applied for, the Court whure niterim refused to order the permanent alimony to run from a date prior to ^""^"^^(""'rier. iihe decree : Settles v. Souks, 3 Gr. 113. But where the husband had manent alimony agreed to a separation, and to pay the plaintiff an allowance, the j^o^ij^te ofser- Court awarded permanent alimony at the rate agreed to be paid by vice of writ. defendant, and directed payment from the date of the writ, though Exception to rule, no application had been made for interim alimony : Mallory v. Mallory, before Boyd, C, at Cobourg, 2nd April, 1883. Where, after an order for interim alimony, the wife returned to Motion to sot her husband's house, and resided there for some time, but was after- ''''^* oider. wards compelled to leave, by reason of cruelty ; a motion to set aside the order for interim alimony on the ground of condonation was refused : Maxwell v. Maxwell, 1 Chy. Ch. R. 27. An order cannot be made in Chambers, even on consent, for payment Oider ainuot be ■of permanent alimony, as that is equivalent to a judgment in the u'^^^ve^o *",i. motion : see Craig v. Grain, 1 Chy. Ch. R. 41. sent for pay- ment of pemia- Amount to be allowed. — There is no fixed rule as to the amount nent alimony, to be allowed for interim alimony. In England, the rule is usually ^,"™°l'(o°. \l^e- to allow about one-Kfth of the annual income of the husband, but it rim alimony, is in the discretion of the Court, and may vary according to the cir- tial interest, usually requires the consent of the other persons interested in the partTe"'inte?ested ^^^^^^' *° ^^ ^l^d, before authorizing the petition to be referred for required. investigation. Thus, where a purchaser before conveyance filed a petition, the consent of his vendor was required : Me Brown, 3 Chy. Ch. E. 158 ; and where the petitioner was a tenant in remainder, the consent of the tenant of the particular estate was required : Se Pelten, 8 P. R. 470. The consent duly verified by affidavit should be attached to the petition, when brought to be filed. Petition to quiet 494. A petition Under the Act may, at the option of title to whom to . . -^ "^ ■*■ be referred. the petitioner, be referred to any of the officers of the Court at Toronto, or to any conveyancing Counsel, who may from time to time be designated by the Court for the purpose ; or to any of the following Local Masters, viz, the Masters at Barrie, Belleville, Brant- ford, Brockville, Cobourg, Cornwall, Goderich, Guelph, Hamilton, Kingston, Lindsay, London, Ottawa, Owen Sound, Peterborough, Sandwich, Sarnia, Simcoe, Strat- ford, St. Catharines, Whitby, and Woodstock : or to any other of the Local Masters who shall hereafter be designated. (31st Aug. 1867 ; Ord. 3.) Chancery Order 495. 801 This Order is in force in all the Divisions of the High Court. In addition to the Referees of Title named in this Order the Additional Ref- Masters of the Court of Chancery at Brampton, Berlin, Chatham, Perth, and Walkerton, were prior to TM Judicature Act, also appointed Referees of Titles ; and since the passing of The Judica- ture Act, Sutherland Malcomson, Esq., one of the Masters of the Supreme Court at Goderich, has also been appointed a Referee of Titles, by the Presidents of the Queen's Bench, Chancery, and Common Pleas, Divisions of the High Court. The local Masters of the Supreme Court for Ontario, are not ex locnl Master not officio Referees of Titles, and only those who were Referees of Titles uf luies. at the date when Tlie Judicature Act came into force, or who have, since been expressly appointed by the Judges of the High Court, Referees of Titles, are now entitled to exercise the duties of the latter office. Where the petitioner desires to have the petition referred to any local Master as Referee of Titles, he must designate the officer to whom he desires the reference, by indorsement on the petition : see Ord. 495. If there be no such indorsement the petition will be referred to the Referee of Titles at Toronto : Ord. 496. 495- To facilitate the proceedings in cases referred i"'i^5°to"be^ap- to the Local Masters, one or more Inspectors of Titles po'^'^d. will be named by the Court, for the purposes, and with the powers mentioned in and provided for by the 25th and 26th sections of the said Act ; and on the petition are to be indorsed the names of the Inspector, or one of the Inspector.?, as the case may be, and of the Local Master, thus : " To be referred to the Master at .indorsement and to Mr. , Inspector of Titles." (31st Aug. 1867 ; Ord. 4.) At present there is only one Inspector of Titles, and this officer is also the sole Referee of Titles at Toronto : see Ord. 633. If there be no indorsement of the name of a local Master, the peti- Petitions not tion is to be referred to the Referee of Titles at Toronto : Ord. 496. n° me^ofa'Local Only a Local Master who is also a Referee of Titles can be named referrpd to Kef- in the indorsement. As to the Masters who may be named, see Ord. eree at Toronto. 494 and notes. Where the petition is required to be referred to a Local Master as _ Referee, it must, before being filed, be entered with the Inspector of tition rpferred to Titles, ai 97, 514. Titles, and a fee of |8 in stamps must be paid thereon : see Ords. '-°™' "efe^e. S02 Chancery Orders 496—499. to be referTe'dTo 496- Petitions filed unindorsed with the name of a Toronto Referee. Rgferec, are to be referred to the Referee in Toronto, or to one of the Referees in Toronto (if more than one), in rotation or otherwise as the Court from time to time directs ; but a petition indorsed with the name of any Referee is to be referred to him accordingly, unless the Court otherwise directs. (31st Aug. 1867 ; Ord. 5.) At present there is only one Referee at Toronto : see Ord. 633. Petitions to be 497- Where the petitioner desires the reference to a reterred to Local Ti-mr i - i i-ii Referees to be Local Mastcr, the petition is to be entered with the first eotered with t* i m t •it Inspector. Inspector of Titles before being filed as required by the Statute, and the Inspector is to note thereon the day of entering the same, adding to such note his own initials, and is thereupon to deliver the petition to the solicitor, or, if duly stamped, to the Registrar, to be filed. (:31,st Aug. 1867; Ord. 6.) The word " Registrar" in this Order, appears to be a mistake ; the "Clerk of Records and Writs," is the offii;er with whom the peti- tion is filed in the Chancery Division. Local Masters 498. The Local Master shall be entitled to confer or Se'ctor"™"' correspond from time to time with the Inspector of Titles, for advice and assistance on questions of prac- tice or evidence, or other questions arising under the Act or under these Orders. (31st Aug. 1867 ; Ord. 7.) Certificate of m- 499. The Clerk of Records and Writs is to deliver befregistered." °to the party filing a petition under the Act, a certifi- cate of the filing thereof, for registration in the proper County; and thereupon the petition is forthwith to be referred and delivered or posted by the Clerk of Rec- ords and Writs to the Referee named for that pur- pose. (:31st Aug. 1867 ; Ord. 8.) The form of the certificate referred to in this Order is given in B. S. O. p. 1061. The certificate is required to be registered in the proper registry office : see R. S. 0. c. 110 b. 6. The originals, or certified copies, of all instruments, registered prior to this certificate are required to be produced to the Referee : see lb. a. 7 sa. 1, 2. Chancery Order 500 — 501. 303 500. The particulars necessary, under the fifth sec- ^f^^'ilXK' tion of the Act, to support the petition are to be deliv- Reft™ ano'ex"- ered or sent by the petitioner, or his solicitor, to the ^""°"* *^ ''""• Referee, and are to be forthwith examined and con- sidered by him. (31st Aug. 1867; Ord. 9.) The section of the Act referred to in this Order is now R. S. 0- c. 110 s. 7. See farther as to proof required, Ord. 492 note. On delivering the papers to the Referee a fee of fifty cents is to be Feespayable. paid on each deed in the chain of title, other than satisfied mortgages. This fee is in lieu of all other fees ; except fees ffor proceedings occasioned by any defects in the proof of title, and which shall be the subject of objection, or requisition, by the Referee : see Ord. 512. And where the reference is to the Referee at Toronto the additional fee of $4 on the certificate of title is also payable, lb. . 501- In every case of an investigation of the title Evidence re- to property under the said Act, the petitioner is to possession, shew, by affidavit or otherwise, whether possession has always accompanied the title under which he claims the property, or how otherwise, or is to shew some suf- ficient reason for dispensing with such proof either wholly or in part. (.31st Aug. 1867; Oi'd. 10.) The question of possession is always a very important one, and it PogBession, evi is necessary that the affidavits should shew how the possession has dcoe as to. been held, e. g. : whether by residence, or by cultivation, and by whom, if by tenants giving their names and the periods during which they occupied. Proof as to [possession is indispensable : Me Wright, 2 Chy. Ch. R. 355. Where the petitioner is a mere trespasser claiming to have . . . ^ ^ . , T_ Petitioner origin - acquired title by possession, the evidence as to possession must be ally entering as a very clear and conclusive, and it must be shewn to have actually '''"P"^^'' extended to the whole of the land claimed. The actual possession of some part of a lot, or parcel, of land by a mere trespasser, will be insufficient to confer a title by possession, as to any other part of which there has been no actual possession, even though the lot be a Possession of wild lot : Harris v. Mvdie, 7 App. R. 414. In order to confer a g JuJt'iTe°posse'fs- title under the Statute of Limitations there must be an actual and ion of residue of lot. visible possession, mere payment of taxes on a vacant lot confers no title : Be Jarvis v. Coolce, 29 Gr. 303 , Walton v. The Woodstock Oas Co., 1 0. R. 630 ; but see Steers y. Slinw, 1 0. R. 26. 304 Chancery Oeder 502 — 503. Kyidence where Where the petitioner claims title by possession, he must prove title claimed ■ , ,, ■ -^ i- , i , solely by posses- possession for the requisite time by clear, and positive evidence, *'°''' which should be of more than one independent witness. In such „, case a notice, prepared by the Referee, should be served upon the person having the paper title, if he can be found, but if not, evidence of search for him and his' representatives should be put in, and in such a case the possession should be shewn to have been long enough to bar him even though he had no notice of the possession '■ Re Caverhill, 8 0. L. J. N. S. 50 ; Exparte Chamberlain, 2 Chy. Oh. R. 352. Where the petitioner claims title as against the patentee, or his heirs, or assigns, of land of which they have not taken actual posses- sion by residing on, or cultivating some portion thereof, he must shew either knowledge of his possession by the patentee, or his heirs, or assigns, or else establish a possession for at least twenty years ; R. 8. 0. c. 108 s. 5 ss. 4 ; Re Linet, 3 Chy. Ch. R. 2.S0 ; Bingle v. Bake, 42 U. C. Q.B. 250 ; VanVeUor v. Hughson, 45 U. 0. Q. B. 252 : proof of notice to the husband of the owner is sufficient : Harris v. Prentiss, 30 C. P. 484 ; S. 0. in Appeal, 7 App. R. 414. Where petitioner It is not clear that it is necessary to establish so strict, and actual, tiu'e thoug" * * possession to all the land claimed, where the petitioner has been in origioally defect- possession under a claim of title which was originally defective. In i ve actual poB- ii t j_ ■ j^ j. t- . . aession of part such a case the doctrine oi constructive possession might, and would may confer title probably, be held to apply, even as against the owner of the paper title : see Dundas v. Johnston, 24 tJ. C. Q. B. 550 ; Davis v. Hender- son, 29 U. 0. Q. B. 344 ; per Burton, J., Harris v. Mudie, 7 App. R. p. 425 ; Steers v. Shaw, 1 0. R. 26. I'Ztert!"-'' 502. Where there is no contest, the attendance of woMXso'iwtor the petitioner, or of any solicitor on his behalf, is not dispensed with. ^Q ^g required on the examination of the title, except where, for any special reason, the Referee directs such attendance. (31st Aug. 1867; Ord. 11.) Keferee to de- 503. If, on such examination as aforesaid, the Referee and objections, find the proof of title defective, he is to deliver or mail to the petitioner, or to his solicitor or agent, a memo- randum of such finding, stating shortly therein what the defects are. (31st Aug. 1867; Ord. 12.) Ifproofsarecom- Where the proofs are complete in the first instance, no fees are plete. and no t» r -( . requisition payable to the Referee who examines the title, except the fifty cents 'Retiree^ ^otai- payable on each deed in the chain of title. But where the proofs are ther fees pay- defective, the Referee is, in addition, to be entitled to the same fees on aU proceedings occasioned by any defects in the proof of title which Chancery Order 504. SO* are mentioned in his memorandum delivered under this Order, as were payable to the Master in respect to similar proceedings in suits, but it would seem that these latter fees must be paid now according to the former Common Law tariff so far as applicable, and for pro- ceedings not provided for therein according to the Chancery tariff referred to in Ord. 309 ante : see Ord. 512 pout. 504. When the Referee finds that a good title is Aavertisemonts T , . to be published snewn, he is to prepare the necessary advertisement, and in Gazette and , , . , other newspa- the same is to be published in the OfEcial Gazette and inpers. any other newspaper ornewspapers in which the Referee thinks it proper to have the same inserted ; and a copy of the advertisement is also to be put up on the door of the Court House of the County where the land lies, and, unless the nearest Post Office is in a city, in some Notices to be •^ . posted at Court conspicuous place in the Post Office which is situate House rod post nearest to the property, the title of which is under investigation ; and the Referee is to indorse on the advertisement so prepared by him, the name of the newspaper or newspapers in which the same is to be published, and the number of insertions to be given therein respectively, and the period (not less than four weeks) for which the notice is to be continued at the Court House and Post Office respectively. (31st Aug. 1867 : Ord. 13.) The notice is not to be published until the Referee finds that a good title is shewn. The notice is, ordinarily, required to be published once in the Aavertifemeiit^ Ontario Gazette, and at least once a week for two weeks in some how published. local newspaper published in the county town, or other place near where the lajids in question are situated ; but in some cases it may be found advisable to publish the advertisement more frequently. At least a month should be given from the date of the publication of the first advertisement, for sending_in claims. The advertisement is principally intended for persons, if any, whose rights are not disclosed on the proceedings. Persons who are known to have any claim adverse to the petitioner, or persons who possibly may have some adverse claim, should generally be required to be served with notice of the proceedings : see R. S. 0. u. 110 ss. 16-23. 39 •306 Chancery Order 505. Notice at Court 'I'he notices required to be posted at the Court House, and Post Office, should be kept up continuously for the period directed, and the person intending to prove the posting up, should take care to see that such notices are kept up continuously for the requisite period : Re Hill, 2 Chy. Ch. R. 348 ; Re Chamberlain, 2 Chy. Ch. R. 352. Affidavits prov- For form of affidavits of posting, and of publication of advertisements, ing publication. ^^^ ^^^j^^ ^^ ^.^j^^ 2nd ed. p. 200, 201. Where the lands are situate in [a, city, posting of a notice at the Post Office is not required. Notices required 505- Anv Hotice of the application to be served or to bfi served, are •^ ^ ^ to be prepared by iKi ailed Under the fourteenth section of the Act, is to Referee, and served as directed be prepared by the Referee ; and directions are in like manner, to be given by him as to the persons to be served with such notice, and as to the mode of serving the same, (31st Aug. 1867 ; Ord. 14.) The 14th section of the Act is if. S, 0., c. 110, s. 16, and is as follows : — Adverse claimant "16. — In case there appears to exist any claim adverse to, or incon- sistent with, that of the petitioner to, or in respect of, any part of the land, the Judge shall direct such notice as he deems necessary to be mailed to, or served on, the adverse claimant, his solicitor, attorney, or agent." By section 23, the Referee of Titles, to whom any petition is referred, is to proceed as the Judge should do under the Act, had the reference not been made, and he is to have the same powers. Notice should be required to be served on every person known to have a claim adverse to the petitioner, whether the claim be admitted by the petitioner or not, unless the consent of such person be filed, duly verified, consenting to a certificate of title being granted to the petitioner, free from, or subject to, the claim, if any, of such con- senting party, and, if subject to his claim, setting forth with clear- ness what his claim is. The' notice to be served should contain explicit information why it is served : Ex parte Hill, 2 Chy. Ch. E- 348. Notice is also often required to be served for the sake of precau- tion, thus, where an application was made by devisees within a year of the death of theirj testator, notice was required to be served on the heirs-at-law, as the petition was in effect a proceeding to establish the will : £!x parte Hill, 2 Chy. Ch. E. 348 ; and see Re Dougherty, 4 Chy. Ch. E. 80. When title When title is claimed by possession, notice should ordinarily be Chancery Order 505. 307 served upon the persona who, but for such possession, would be the cMnied by pos- ^ ' 1,1 eeselon, owner of owners : Me Chamberlain, 2 Chy. Oh. R. 352. So also where the paper title to be petitioner claimed the north-easi part of a lot under a will devising s'^^ed. the north-i«esi part, alleging that the word ' ' west " was a clerical error, aE persons interested in maintainingj the opposite view were required, to be notified : Ex parte Lyons, 2 Chy. Ch. R. 357. Proceedings under Tlie Quieting Titles Act being for the most part Petitioner may be ex parte, it is often necessary to require the petitioner to negative the ^^^"{[Jj evi?"^ existence of facts, of which, in the case of a contest between the dence. petitioner and any third person, the onus of proving would be on such third party : Re CaverhiU, 8 C. L. J. N. S. 50. Where any transfer of the property has taken place, under circum- q^ explain cir- stances of an unusual nature, it is necessary to require the petitioner ^"g™'^°''°^ ._ to adduce evidence to negative the existence of any fraud, or want of cion. •bona-Jides : Re Dougherty, 4 Chy. Ch.Ti. 80. Where, for instance, -the property is claimed by, or on behalf of, a wife, under a convey- .ance made to her during coverture, an explanation of the transaction should be given on oath to show that it was bon&-Jide, and was such, that the husband's creditors could have no claim to "the property, and the affidavit of the petitioner should be corroborated by disinterested persons of credibility : Ex parte Lyons, 2 Chy. Ch. R. 357. So where the former owner, a person of the same name as the petitioner, had conveyed the land to the petitioner a few days before the filing of the petition, and the liitle appeared simple, explanations were required to be given : Re Wright, 2 Chy. Oh. R. 355. And, in addition, notice may also be required to be served on per persons inter- sons who may appear to have a possible interest in disputing the bona f^'^* '" "^'iS"*', jides of any conveyance under which the petitioner claims, wherever transaction there are any circumstances calculated to arouse suspicion : see^Re petiHonerclaims Dougherty, 4 Chy. Ch. R. 80. to ^^ notified. Notices required by the Referee, to be served, are to be prepared gervicenf notices .and issued by him. Where service is directed to be effected by ^"^ effected. mailing, the Referee may direct the letter enclosing the notice, to be prepaid and registered, and a notice to be indorsed on the envelope to the effect that if the letter be not called for within eight days that it is to be returned to the Referee of Titles, by whom the notice is issued. Directions to return letters, if not called for, are required by the Post Office authorities, to be printed, in order to secure due attention. Where a notice, served in this way, is returned to the Referee of Titles, he should require further service. Where service is authorised on the attorney, solicitor, or agent of the party to be notified, there 308 Chancery Orders 506-507. should be evidence produced that the person served was in fact the- solicitor, attorney, or agent of the party required to be notified. Proof of eerTice. Strict proof is required to be given of the due service of all notices required to be served. The entries of service in a deceased solicitor's docket were held insufficient proof : Ex parte Palmer, 2 Chy. Ch. E. 351. Adjudication on Where there is a contest, the Referee may, by consent, report on ant. the contestants' claim before disposing of the petitioner's title ; tut he should not do so, without consent. In general, the petitioner is bound, in the first place, to make out his own title before he can claim to have an adjudication upon the claim of a contestant : Se Cameron, 14 Gr. 612. And a contestant is at liberty to point out defects in the petitioner's title, before proceeding to prove his own : Arinour v. Smith, 16 Gr. 380. Referee may The Referee of Titles may award costs to, or against, a petitioner, award costs ^^ contestant: Anon, 2 Chy. Ch. R. 22. The order, or certificate of the Referee should be drawn up in similar terms to a report — e. g. , Form of repirt. " I find and certify," and not "adjudge and determine," lb. Inspector, and 506. The Inspector, or Toronto Referee, is from time- 'toronto Referee, ^^^ r ^ J f to confer with \^q time to confer with one of the Judges in respect of matters before such Inspector or Toronto Referee, as there shall be occasion. (31st. Aug. 1867: Ord. 15.) ^t^beforlf Sfcli SO''- When any person has shown himself, in the certifT'ame'ln°d Opinion of a Local Master, to be entitled to a certifi- to™spMtor" '^^^^ °^ conveyance under the Act, and has published and given all the notices required, the Master is to write at the foot of the petition, and sign, a memoran- dum to the following effect : " I am of opinion that the petitioner is entitled to a certificate of title {oi^ con- veyance) as prayed" {or subject to the following incum- brances, &c., as the case may he); and is to transmit the petition (if by mail, the postage being prepaid,) with the deeds, evidence, and other papers before him in reference thereto, to the Inspector of Titles with Duty of inspec- whom the petition was entered; and the Inspector is to examine the same carefully, and should he find any defect in the evidence of title, or in the proceedings^ Chancery Order 508. 309 lie is, by coD-espondence or otherwise, to point the same out to the petitioner, or his solicitor, or to the Master, as the case may be, in order that the defect may be remedied before a Judge is attended with the petition and papers for approval. (31st Aug. 1867; ■Ord. 16.) It will be seen from this Order that the finding of a Local Referee Finding of Local of Titles is not conclusive, but that it is the duty of the Inspector of fiusiyl °°' ''°"' Titles to examine the proceedings, and to require any defects in the proofs to be supplied. When the Inspector finds the proceedings defective, he either transmits the papers to the Referee, with a note of the defects, or, where they are few, and of trifling character, he ■communicates directly with the solicitor of the petitioner. Where thei-e has been any contest before a Referee of Titles, he I^i=a.l Referee to should before certifying in favour of the petitioner, and transmitting testant's claim, if -the papers to the Inspector, dispose of the claim of the contestant. '^^tl^J^°pl^l^s^ The order or report of the Referee on the claim of a contestant to Inspector, should be filed and confirmed, in the same manner as a Master's report in an action, before a certificate of title is granted'Jtb the petitioner. An appeal will lie from .the order, report, or certificate, of a Appeal from Referee of Titles, or Inspector of Titles, to a Judge in Chambers. ]°f'"'*'°h°n^:, ^ ' o lieferee of litles. Such appeals are heard in the Chancery Division, on Mondays , and they must be set down at least the Saturday previously ; and seven ■days' notice of appeal^ must be given to the respondent : See Ord. -591, post. The appeal must be argued by counsel : lb. A contestant who succeeds in establishing an adverse claim, cannot Contestant ■obtain a certificate of title in the proceeding in which he is contestant, claim cannot but he may himself file a petition, and on such petition, he would be "? '.^J? °^-tho'"t'^ •entitled to use the evidence taken in the matter in which he was filing a petition, ■contestant : Ee Dunham, 8 P. R. 472. 508. When the Inspector, or other Referee (not ^b™ Me^s^_^^ being a Local Master,) finds that the petitioner has '^^^^^^^^;^. .shewn himself entitled to a certificate of title, or &ll^^^^^^^i^^^^ conveyance under the Act, and has published and ^"tificSTme given all the notices required, the Inspector, or Referee, {not being a Local Master,) is to write at the foot of the petition, and sign a memorandum to the same effect as is required from a Local Master, and is to prepare 310 Chancery Order 509. the certificate ot' title, or conveyance, and is to engross- the same in duphcate, one being on parchment or parch- ment paper; and is to sign the same respectively at the Certificate to be ^o^^t or in the margin thereof; and is to attend one of dupucait'" the Judges therewith, and with the deeds, evidence, and other papers before him in reference thereto ; and on the certificate or conveyance being signed by Signed by Judge, ^Ijg Judofe, the Inspector or other Referee aforesaid,. Inspector, or ^ ' Jl Ind'Ke°=-is'trIr™' ^ the casc may be, is to procure the same to be signed by the Registrar, and registered ; and the Clerk of Records and Writs is to deliver or transmit the same, when so signed and registered, to the petitioner, his sohcitor, or agent, for registration in the proper County. (31st Aug. 1867; Ord. 17.) Certificate of A Local^fieferee to whom a, petition is referred, is not to prepare Spared.'''""" *^^ certificate of title. The Inspector of Titles— or the Referee of Titles, at Toronto,^ where the petition is referred to him — are the only officers authorized to prepare certificates of title, issued under the Act. M^tmSt^™'"^ This Or I to ' proceedings in are, respectively, to be the same as for like proceedings suits. in suits. (31st. Aug. 1867; Ord. 20.) It is presumed that the tariff of fees promulgated by the Judges of the Supreme Court, on 10th September, 1881, would now be applica- ble to proceedings under The Quieting Titiefi Act ; that tariff, how- ever, in terms only relates to costs in ' ' civil actions. " 512- The Referee is, in lieu of all other fees, to be £oes payable to ' ^ Keferee of Titles, titled to a fee of fifty cents for every deed in the chain of title, other than satisfied mortgages; and Referees who prepare the certificate or conveyance, are to have a fee of four dollars, for drawing and engrossing the same in duplicate. Besides these fees, the Referee is (.g^g g,j p,,„jgg(,. to have the same fees in respect of proceedings occa- b^/deS'ta"'' sioned by any defects in the proof of title, which shall'"'*' 312 Chancery Orders 513 — 516. be mentioned in the Referee's memorandum referred to in Order 503, as are payable to the Master in respect of similar proceedings in suits. No further or other fee is to be payable to the Referee in respect of any of the proceedings by or before him under the said Act in an uncontested case. (31st Aug. 1867; Ord, 21.) Veea payable to Referee in con- tested case. Fee payable lo Inspector of Titles. 513- In a contested ease, the Referee is, in addition, to be entitled, in respect of the proceedings occasioned by the contest, to the same fees therefor as are payable to him for the like proceedings in suits. (31st Aug. 1867; Ord. 22.) 514. The fee of the Inspector of Titles on entering the petition with him is eight dollars, and no further fee is to be paid him for correspondence, examination of the title, drawing and engrossing certificate or con- veyance, or for any other matter or thing done under the petition. (3 1st Aug, 1867 ; Ord. 23.) Applicant to pay 5^5 The applicant or his solicitor is to pay, or prepay, as the case may be, all postages i and other expenses of transmitting letters or papers. (31st Aug. 1867 ; Ord. 24.) ™der^S°s 516. Petitions under the thirty-fifth section of the conducted^^and"' ^^* ^^® *° ^^ ^^^'^ ^^'^ proceeded with in the same fees therefor. manner (as nearly as may be) as petitions for an inde- feasible title; and the fees of officers, solicitors, and counsel, are to be the same as in respect of the like proceedings in suits. (31st Aug. 1867 ; Ord. 25.) The 35tli section of the Act, above referred to, is now R. S. 0. 0. 110, B. 33. That section is as follows : — " 33. In case any person domiciled in Ontario, or claiming any real estate in Ontario, desjres to establish, not his title to some specific property, but generally that he is the legitimate child of his parents, or that the marriage of his father and mother, or of his grandfather Declarations of legitimacy, ic. Chancery Order 517 — 518. 313 and grandmother, was a valid marriage, or that his own marriage ■was a valid marriage, or that he is the heir, or one of the coheirs of ■any person deceased, or that he is a natural born subject of Her Majesty, he may, if the said Court thinks fit, have any of the said matters judicially investigated and declared." Under the Imperial Statute, 21 & 22 Vict., c. 93, it h^s been held that a petitioner cannot obtain a declaration of the legitimacy ■of his grandfather : Dodds v. Attorney General, 42 L. T. N. S. 402. XXXIX. INFANTS AND PERSONS OF UNSOUND MIND. Ord. 517 Order 517. Provided that in case of an infant defendant under ( ^;he age of tea years, the office-copy bill was not to be served on him personally, but was to be left at the dwelling-house of the person with whom, or under whose care he resided, and if there were more infant defendants than one, only one office-copy need be served. The provisions of Ord. 517 were virtually superseded by the sub- sequent Ord. 610, post. The practice as to the appointment of a guardian ad litem to infant Appointment of defendants who are made parties by writ of summons, where they li^'^to'i^nts are resident within the jurisdiction, is now regulated by Rule S. C. 36. how made. Where infants who are made parties by writ, are resident out of the jurisdiction, an order appointing a guardian must be obtained under Ord. 610 post. Where an infant is added in the Master's office, the Master making the order adding him, may also appoint a guardian ad litem, under Ord. 587, or an order may be obtained under Ord- 610. Where infants are made parties to summary applications for administration, or partition, on motion in Chambers, an order should be obtained appointing a guardian ad litem under Ord. 610. 518- An order to take a bill pro confesso, against a order pro. con. , , . p 11 1 ■ i' 1 of no validity defendant who at the time or the making oi such against infant or order is an infant, or person of weak or unsound mind, unable of himself to defend the suit, is of no validity. (3rd June, 1853; Ord. 13, s. 5.) Although there is no proceeding under the new procedure similar to the former orders to take bills pro confesso, nevertheless, the prac- tice established by this Order will, no doubt, be held to be virtually still in force, and a judgment obtained against an infant, or person o 40 lunatic. 314 Chancery Order 519. weak, or nnsound mind, by default, without the previous appoint- ment of a guardian ad litem would, it is apprehended, be of no validity under the new procedure. See Hide S. C. .39 : But it has been recently held that where a plaintiff signs judgment against a defend- ant in ignorance that he is an infant, it is discretionary with the Court whether such judgment should^ be set aside : Famival v. Brooke, 49 L. T. N. S. 134. Application to 519- In case it shall appear to the Court that any ad lit^ to infant defendant upon whom an ofBce-copy of a bill has been or lunatic may , . . « , r i i be made at any served IS an intaut, or a person oi weak; or unsound filed. mind not so found by inquisition, unable of himself to defend the suit, the Court, upon the application of the plaintiff, at any time after bill filed, may order that one of the solicitors of the Court be assigned guar- dian of such defendant, by whom he may answer the bill and defend the suit. C3rd June, 1853 ; Ord. 13, s. 5.) Ord. 619 super- This Order is virtually superseded so far as infants are concerned, fnftnts^'Yuf Ttni ^y ^'''^- ^^^' P""^ > ^^^ ^^ regards lunatics, it would appear to be in in force a8 to force still, lunatics. ADplication to '^^ application to appoint a guardian ad litem to a lunatic defend- appoint guardian ant, may be made by the defendant himself : Worth v. Mackenzie, .3 tic by whom it Mac. & G. 363 ; or by the plaintiff under this Order, at any time may be made. after the writ has issued. Where the application is made by the plaintiff for the appointment of a guardian to a person alleged to be a Evidence on lunatic, who has not been so found by any judicial proceeding, the motion. affidavits in support of the application must state facts showing the defendant to be a lunatic ; it is not sufficient that the deponents swear that the person is of unsound mind, or that they believe him to be so : Mclntyre v. Kingsley, 1 Chy. Ch. E,. 281 ; and it should also be shown, that he has not been so found : Crmuford v. Birdsall, Where lunatic is 1 Chy. Ch. R. 70. Where the lunatic has been so found, the com- mitt™maT de- mittee of the estate should be also made a party, and may defend fend. the action on behalf of the lunatic without an order, but the sanc- tion of the Court to his so doing should be obtained : Danl. Pr. , 5th ed., 158; but if he has no committee, or the committee has an adverse interest, some one else will be appointed guardian ad litem : Howlett V. A braliam, 5 Mad. 23 ; Worth v. McKenzie, 3 Mac. & G. 363. As to service of notice of the application : see Ord. 520. Official guardian Where a guardian is appointed other than the committee, the when appointed.. Official Guardian ad litem, is the person usually appointed, unless he be already appearing for other parties in the action having any in- terest adverse to that of the lunatic. Chancehy Orders 520 — 522. 315- Where a guardian ad litem dies, or leaves the Province, a new On death of guar- guardian may be appointed on the application of the plaintiff ex may be appointed parte : Harper v. Harper, 1 Chy. Ch. R. 217 ; Weldon v. Temphton, ^l""-''- 76. 360. Where a lunatic is added as a, defendant after judgment, or is gS^nTd* "^ served with a notice of motion for administration, under Ord. 467, a litm to lunatic guardian is to be appointed in like manner, as guardians are appointed if.'o!! or sef red to lunatic defendants made parties to the writ of summons. See '»'"•> notice for ^ 7 ^rt^ T. , ^ administration. Ord. 522 ; Hide 8. C. 69a Holmested's Manual, Pr. 63, 64. 620- Notice of the application must be served upon, Notice of appii- or left at the dwelling-house of, the person with whom, be 'serVed. or under whose care the defendant resides, at least one week before the hearing of the application ; and where the defendant is an infant, not residing with or under the care of his father or guardian, notice of the appli- cation must also be served upon, or left at the dwell- ing-house of, the father or guardian, unless the Court at the time of hearing the application thinks fit to dispense with such service. (3rd June, 1853, Ord. 13, s. 5.) This Order continues in force so far as the appointment of guard- ians ad litem to defendants of weak, or unsound mind ; as to infants, the Order is practically effete : see note to Ord. 517. Seven days' notice of the motion, was held sufficient, even though the defendant was resident out of the jurisdiction ; Taylor v. Har- grave, before Taylor, Eeferee, 21st January, 1872. 521- Notice of application for the appointment of a when infant is „ nr»n e i _ 14, or upwards, guardian ad litem, to an infant defendant oi the age or personal service- ° • 1 1 "L necessary unless fourteen years or upwards, is to be served upon such distensed with. infant personally, unless the Court otherwise directs, and is also to be served as directed by the preceding Order. (20th Dec. 1865; Ord. 2.) This Order would only seem to be in force, if at all, as regards motions before Masters to appoint guardians ad litem to infant defendants ; see note to Ord. 522 infra. 522. When infants, or persons of unsound mind not Appointment of ^ . , ., guardian ad litem so found by inquisition, are made parties to suits to infants, or 316 Chancery Order 523. itter judlmmMr ^^^^^ deciee, ov are served with notice of motion under uoe" of motion"' O^der 467, guardians ad litem are to be appointed for under ord. 467, t}jeni in like manner as they are now appointed at any- time after bill filed. (8th Nov. 1856.) Guardian aci litem appoint- ment of, how made. Blaster, may ap- point when. Mouons for ad- ministration. The appointment of guardians ad litem to infants made parties after judgment, or who are required to be served with notice of motion for administration, or partition, is now governed by Ord. 610. The procedure laid down by Rule S. C 36 being confined to the case infants made defendants by writ of summons. The Master, while proceedings are pending in his office, may, where he deems it advisable, appoint guardians ad litem to infant, and lunatic, parties. Ord. 587. Such applications to a Master would appear to be governed by Ords. 519, 520, 521 ; see Ord. 525. And it would therefore seem preferable to obtain the Order appointing a guardian in such cases under Ord, 610. Where an infant, or lunatic, is made party to proceedings by motion for administration, sale, or partition, the order appointing a guardian ad litem may be properly obtained before the notice of motion for the administration, sale or partition, is returnable : Barry v. Brazill, 1 Chy. Ch. E. 237. In such a case, the application to appoint a guardian ad litem to a lunatic, should be made under the preceding Orders, but in the case of infants, the order should be obtained on prceripe under Oixl. 610 post. SerTice of infant, or lunatic, with judgment under Ord. 60, how effected. 523. Where a person required to be served with an office-copy of a decree, pursuant to Order 60, is an infant, or a person of unsound mind not so found by inquisition, the service is to be effected upon such person or persons, and in such manner, as the Master before whom the reference under the order is being prosecuted directs. (1st April, 1867; Ord. 14.) This Order would seem to be still in force in all the Divisions. The Master under, Ord. 587, may appoint a guardian ad litem for any infant, or person of unsound mind, required to be served under Ord. 60, and service of the judgment is then directed to be made on such guardian : see post Ord. 525. Persons served under Ord. 60 are not thereby made parties to the action, they are simply bound by the proceedings, and enabled to attend them if they wish : see Ord. 60 note. Chancery Orders 524 — 526. 317 624. At any time during the proceedings before a Master may re- TlT _L 1 T t -KM- .^1-1. quire guardian Master under an oi'der, the Master may, if he thmks "<* I'tem to be ni- T . appointed for nt, require a guardian ad htem to be appointed for ifiant or luDatic . f. , served -with o. c. any mtant, or person of unsound mind not so found i^dgment. by inquisition, who has been served with an office- copy of the decree. (1st April, 1867; Ord. 11.) The Master may now, himself, appoint the guardian under Ord. 587 post, bu t it would seem doubtful whether the Master can make the appointment except upon notice as prescribed by Ord. 520. It would, therefore, appear preferable in all cases where an order for he appointment of a, guardian ad litem is necessary, that it should be obtained under Ord. 610. 525. Guardians ad litem for infants or persons of j^JJ^^^^^^^f^^jfj^ unsound mind not so found by inquisition, who shall withTo°^udg-^* be served with an office-copy of a decree, are to be minted."'' ^^' appointed in like manner as guardians ad litem to answer and defend, are appointed in suits on bill filed. (1st April, 1867; Ord. 12.) Since the paasi:ig of this Order the practice as to the appointment of guardians ad litem to infant defendants by bill was materially changed by Ord. 610 post ; as regards lunatics, the practice laid down by the preceding Orders continues in force. 526- A person desirous of appointing a guardian for Person desiring r. T ,. 5 1 T, to have aguar- him to defend a suit, may go before a Judge or Master aian ad z»(cm . .^ .. . ^ appointed to him- with the proposed guardian if he thinks fit to do so. self, may attend ^ ' " Judge witn pro- But he must satisfy the Judge or Master by affidavit p»sed guardian. that the proposed guardian is a fit person, and has no interest adverse to that of the person of whom he is to be the guardian in the matter in question; and if the affidavit is not sufficient for this purpose, the Judge Evidence re- or Master may examine the proposed guardian, or theSlon. ""^''^ ' person making the affidavit, vivd voce, or require fur- ther evidence to be adduced until he is satisfied of the propriety of the appointment. (6th June, 1853; Ord. 2.) 518 Chancery Order 527. Sw°)!f""'^'*° '^^^^ on the applicitiou of the'plaintiflt for the appointment of a guardian ad litem to an infant, or lunatic, defendant, the guardian appointed was the nominee of the Court, the plaintiff was bound in any event to pay the guardian's costs, but where the nominee of the defendant was appointed, there was no such liability : Clements v. Sfbrapfoin'ted" ^™'>^<^' 3 Chy. Ch. R. 75. The Official Guardian ad litem is now, by the direction of the Court, appointed in all cases, unless some special reason exists for the appointment of some other person. :Sd?where^euar- ^''^''^ ''■ guardian was irregularly appointed upon insufficient dian ad lit. irreg- notice to the infant, the appointment was set aside on the application ularly appointed, ^j ^.j^^ j^^^^^j. ^j^.^^ ^^^^^^ _ HamiUon v. HamiUon, 2 Chy. Ch. E. 160. Tflnfan/reSe 527. A petition for the sale or other disposition of now entitled. t^g ^eal estate of an infant, is to be intituled in the matter of the infant. (3rd June, 1853; Ord. 37, s. 1.) Official giiardian By direction of the Judges : "In all applications which may be made ex p. applications f"!" ^^^ sale of infants' estates, the Local Judge, or officer to whom intot's°when"°'^*^'*^PP^'°^*''"* may be made is to be careful to require the Official Guardian ad litem, to be notified on behalf of the infants, before disposing of any question in which the interests of the infants, and their mothers, or other persons who may act as their next friendsi may conflict — e. g., questions as to whether the lands should be sold fi'ee from, or suoject to, any estate which the next friend may have therein, and whether a sum in gross, or annual sum, should be paid in lieu of such estate of dower, curtesy, &c. , to which the next friend may be entitled, &o., &c." (Circular Letter of 6th Oct. 1882.) Sale of infant's Applications for the sale, leasing, or other disposition of the real grounds author- estate of infants are authorized by if. S. 0. c. 50 s. 76, et seq. ^^"^' where it is made to appear to the Court, that it is necessary, or proper, for the maintenance or education of the infant ; or that, by reason of any part of the property being exposed to waste and dilapi- dation, or to depreciation from any other cause the interest of the infant requires, or will be substantially promoted by such disposition. Where a sale is necessary for the payment of the debts of the to be considered, ^icestor it may be ordered: Re McDonald, 1 Chy. Ch. E. 97; Re Barker, 6 P. E. 225. But it should be shewn that unless the sale or other disposition, is made, the estate will sustain loss, or that the creditors are about to enforce payment of their demands by suit : Re Boddy, 4 Gr. 144. Where none of the circumstances mentioned in the Act are proved to exist the Court has no authority to make any order : Calvert v. Godfrey, 6 Beav. 197 ; Re Phelan, 6 P. E. 259, and see Re Jackes, 3 C. L. J. N. S. 69, where the Court refused to sanc- tion a renewal of a lease made by the infant's ancestor ; and where it Chancery Ohder 527. 319 appeared that the application was made more for the benefit of the infants' father than of the infants themselves, the application was refused : Se McDonald, I Gr. 90 ; neither will a sale be ordered to repay a relative such as a father, mother," or brother, for the past maintenance of the infant : Keller v. Tache, 1 Chy. Oh. E.'388 ; and see Edwards v. Durcjen, 19 Gr. 101. No sale, lease, or other disposition can be ordered against the pro- No disposition visions of any will or conveyance by which the estate has been de- "a^nte authorized ■. • J J. 1 . . contrary to any vised or granted to the infant, or for his use : R. 8. 0. c. 40, s. 77 ; will or deed. Re Smith, 6 P. E. 282 ; Re Wilson, 7 P. R. 244 : Re GaUicott, 1 Chy.' Oh. R. 182 ; but see Re Bishoprick, 21 Gr. 589. A guardian of an infant, cannot, without the sanction of the Guardian cannot Court, make a valid lease of his ward's land : Collins v. Martiti, 41 Stnfan't4''la'M° U. C. Q. B. 602 ; Switzer v. McMillan, 23 Gr. 538 ; Townsletj v. Neil, without sanction 10 Gr. 72 ; the report of the last case appears to be erroneous in describing the guardian who made the lease as a guardian ad litem, instead of a guardian of the estate of the infant. The Statute says, the application is to be made in the name of the . ,■ *• <■ . . , ^ ^ Application for mtant by his next friend, or his guardian, but cannot be made with- sale, &c., how to out the infant's consent, if he is of the age of fourteen, or upwards . °'*°^- R. S. 0. c. 40, s. 78, and see posl Ord. 532 ; but see Ord. 528, post. Applications for the sale, or other disposition, of infants' estates, may be made to the Master in Chambers, and it would also seem they may now be made to the County Court Judges, or Local Masters. Rule S. 0. 422 ; see Holmested's ManL Pr. pp. 213-214. The Court may order the execution of the conveyance by the infant. Execution of Con- or some one on his behalf, and a conveyance so executed is binding ^^y'^^'^- on the infant, as if made after he had attained his majority ; R. S. 0- c. 40, ss. 79, 80 ; Rae v. Geddes, 3 Chy. Ch. R. 404. The proceeds of lands sold, or disposed of under the direction of proceeds of sale, the Court, retain the quality of the estate sold, or disposed of, so far as retain quality of the rights of the infant's heirs, and next of kin, are concerned : R. S. 0. 0. 40, s. 82; Fitzpatrich V. Fiizpatrick,6 V. R. 134; Thompson v. McCaf- frey, 6 P. R. 193 ; Campbell v. Campbell, 19 Gr. 254. But where such moneys descend as realty, if the heir do not efifect an actual re- conversion they will pass to his representatives as personalty : 3for- daunt V. Benwell, 19 Ch. D. 302 ; 45 L. T. N. S. 685. Where the mother of the infant is a lunatic an application may be order for bar of made for an order barring her dower : 44 Vict. c. 14 (0) ; 46 Vict. u. 'lo*^''' 12 (0) ; R. 8. 0. 0. 126, ss. 8-10. The application must be made to a Judge in Chambers : Re Colthart, 9 P. E. 356. Settled Estates. — The Court has slso the same jurisdiction which Settled estates. 320 Chancery Oedees 528—529. jurisdiction of the Court of Chancery in England had on the 18th March, 1865, in Court in regard ii/?it to. regard to leases, and sales, of settled estates, and in regard to enabling infants, with the approbation of the Court, to make binding settle- ments of their real, and personal, estate on marriage : see M. S. 0. c. 40, o. 85. ' The jurisdiction of the English Court of Chancery, at the above date was regulated by Imp. Acts 19 & 20 Vict., u. 120; 21 & 22 Vict., 0. 77; 25 & 26 Vict., o. 108; 28 Vict., c. 45; see Taylor & Ewart's Judicature Act, p. [119]. Sale cannot be The Court has no power under B. S. 0. u. 40, s. 85, to order the made of part to gale of a part of a settled estate, in order to make improvements on improve residue. the remainder : Se Moore's Settled Estates, 6 P. R. 281 ; He Cham- bers, 27 Beav. 653 ; nor c;.n it sanction an exchange : He Bishoprick, 21 Gr. 589 ; but in that case, on its being shown that, unless the ex- change were made the property was liable to depreciation in value, the sale was directed under R. S. O. c. 40, s. 76 ; but the provisions of sect. 77, prohibiting any sale, or disposition against the provisions of any will, or conveyance, do not seem to have been considered in that case. Applications Applications as to leases, and sales, of settled estates, and to enable respecting set- minors to make binding settlements of their real, and personal estate) be made to a on marriage ; and in regard to questions submitted in the form of Judge. special cases by persons under disability of infancy or lunacy, under E. S. 0. c. 40, s. 85, are excluded from the jurisdiction of the Master in Chambers and the County Court Judges, and Local Masters : Ord. 560, post ; Sule 0. S. 420-422 : and see Holmested's Maul. Pr. 210-214. Petition for sale 528- The petition is to be presented in the name of of infent's estate, ,.„,i. t i -, . ■, in whose name to the infant, Dv his guardian, or by a person applying by be presented. .. • j t t J^J--'o./ the same petition to be appointed guardian, as herein- after provided. (3rd June, 1853 ; Ord, 37, s. 2.) rariance be- There is a variance between this Order, and the Statute S. S. 0. u. *,r''S"5'^''- """* 40, s. 78, which provides that the application shall be in the name of R. S. O.c. 40, s. , . r - T 1 1 - T 78. the infant by his next friend, or by his guardian. Petition for sale 520. Thc petition is to state the nature and amount of infant's estate, «'~*' r what itisto state. of j^jje personal property to which the infant is enti- tled — the necessity of resorting to the real estate — its nature, value, and the annual profits thereof. It must also state circumstances sufficient to justify the sale or other disposition of the estate, and the application of the proceeds in the manner proposed. The prayer must Chancery Oeder 529. 321 state specifically the relief that is desired ; it must designate the lands to be disposed of, and must pro- pose a scheme for that purpose, and for the appropri- ation of the proceeds. If an allowance for the main- tenance is desired, it must be so prayed, and a case must be stated to justify such an order, and to regulate the amount. (3rd June, 1853 ; Ord. 37, s. 3.) A similar procedure prevails in the State of New York : see Tyler Court has no on Infancy, p. 300, =. 196. Apart from the power given by the ^"rS* race"^ Statute, the Court has no authority to direct the sale of an infant's under Statute, estate, on the mere ground that it would he beneficial : Calvert v. Godfrey, 6 Beav. 197. The circumstances justifying a sale of an infant's estate, under the Circumstances Statute, are : (a) The fact that the sale is necessary, in order to main- Ta^e'^of tafeSts'' tain, or educate, the infant ; or, (h) that by reason of the property, or estate. any part of it, being exposed to waste and dilapidation, or to depreci- ation from any other cause, the interest of the infant requires, or will be substantially promoted by, a sale, or other disposition : see .P. S. 0- u. 40, a. 76. A sale may be authorized for the payment of the ancestor's debts Paym ent of debt* for which the estate is liable, where the creditors are pressing, and loss is likely to be incurred, if the sale be not made : Re Bodchj, 4 Gr. 144 ; Re Barker, 6 P. R. 225. The petition may be presented to the Master in Chambers, who has Master in Cham- power to direct a sale, and take all necessary accounts, and make all uon'to'oraer'soir necessary inquiries, but an order of a Judge must be obtained, for the payment out of Court of any money realised from any sale, or other disposition of the estate : Rule S. 0. 424. Where the father of an infant is living, it is his duty primd facie to Duty of father support and maintain, and educate, the infant, no matter what the ehiMren*"'" '"' infant's fortune may be : Simpson, on Infancy, p. 161 ; and main- tenance is not ordinarily allowed out of the infant's estate, except npou proof that the father is unable to maintain, and educate, his children, according to their station and prospects in life ; and al- though where there is an express trust in the marriage settlement, to which the father is a party, requiring the trustees to expend the trust fund for the support of the children of the marriage, such a trust may be enforced by the father : Mundy v. Earl Howe, 4 Bro. C. C. 223 ; yet where the trustees have an option, or a mere ]>ower, to do so, the Court will not compel them so to apply the trust 322 Chancery Order 530. fund except on evidence of the father's inability to maintain the in- fant : Wilson V. Turner, 48 L. T. N. S. 370. Mother not so A mother is not under any obligation to support her offspring, and consequently maintenance will be allowed out of the children's own property, without' reference to her ability to support them : Simp. 161. nil sale being Upon an application under the R. S. 0. c. 40, s. 76, for the sale of as to debts of "^^ ^^ infant's estate, it is usual before directing any application of the ancestor made, proceeds, to require proof of payment of the debts of the ancestor, in oases where the infant has become entitled to the property directed to be sold, as heir-at-law, or devisee ; or to require an advertisement to be issued for creditors, where no sufficient advertisement has pre- viously been issued by the personal representative, and the Court then makes provision for the payment of the debts, if any. Where the ■Sale not ordered sole object of the sale is the maintenance of the infant, the proceed- ti'on''a"ttoif'Trtien ™g^ Ought to be taken under the R. 8. 0. c. 40, s. 76, and not by way brought merely of action for the general administration of the estate ; and the Court of infants. ° "^^ refused, where the latter proceeding has been adopted unneces- sarily, to sanction a sale in the administration proceedings, for the purpose of maintenance ; Fenwick v. Fenwipk, 20 Gr. 381 ; Ooodfellow V. Rcmnie, lb. 425 ; Foster v. Patterson, lb. 345. Principal not As a general rule the Court will not break in upon the principal usually broken jr . jr x- into. money, for the maintenance, and education, of infant legatees, still it may be done where necessary : AsAboui/hv. Ashbough, lOGr.430. Petition for sale 530- The petition may pray for the appointment of may pray for ap- g, guardian, as well as for the disposal of the infant's guardian. estate. In that case a proper case must be made by the petition, and established by the evidence, for the appointment of the person proposed. (3rd June, 18-53 : Ord. 37, s. 3.) Hi h Co rt and '^^^ Surrogate Court has also power to appoint guardians to mi- Surrogate Court nors : See R. S. 0. c. 132 ; 44 Vict. c. 16 (0). These Statutes, powerrto"a"-'"'' however, do not exclude the jurisdiction of the High Court :, He point guardians Stannard, 1 Chy. Ch. R. 15 ; Re McQueen, McQueen v. McMUlan, for infaDts. * 23 Gr. 191. When Surrogate Where a guardian has been appointed by the Surrogate Court, the ^'onted^ua^dian ^^^ Court wiU not appoint any other except for cause, and it High Court will should therefore be shewn, on applications to appoint guardians under not appoint. j^jjggg Orders, that the minor has no guardian. Where the High Court appoints a guardian of the person and Chancery Order 631. 323 estate of a minor, it usually requires |the guardian to give security. And if a guardian has been appointed by a Surrogate Court, an B"' ""^7 ""^d^"' • • i- J ■, : , i, i. J- ■ inquiry as to inquiry is sometimes ordered as to whether the guardian so appom- safflciency of ted has given sufficient security ; and if he has not, then he is ^'"""'y- required to give additional security before he is empowered to receive moneys on account of the infant. Where, however, the fortune of the infant is trifling, and the fund is lodged in Court, the Court frequently dispenses with security being given by the guardian ; and requires instead an affidavit to be filed by the guardian from time to Security when time, showing the due application of moneys paid to him under dispenf cd with. the order of the Court. Although the Court is in the habit of paying respect to the wishes j^ appointment and directions of a testator in reference to the guardianship, and of guardian Court ° ^ considers interest care of his children, it wiU not do so, where it is clearly shown, that of infant. a compliance therewith, would be prejudicial to the happiness, and moral training, of the infants : Anon, 6 Gr. 632 ; Re McQueen, McQiKenv. McMillan. 23 Gr. 191. So, where there was a contest between a step-father and an unCle, and the child preferred the former, the Court being satisfied that it was better for the infant that the uncle should be appointed, ap pointed him : Ee Irwin, 16 Gr. 461. The Court may remove testa- mentary guardians, and trustees, for the same causes as other guar- dians : B. S. 0. 0. 132, 8. 8. Where the father is li\'ing, if it is proposed to appoint any other Where father person guardian, the father must be notified of the application : Re be'notifledof" Henrichs, 2 Chy. Ch. R. 418. application. It is improper to give a reversionary guardianship of wards in.Suardianshipnot Court to the successors in office of any named person : Murphy v. to a person and Lamphier, 12 Gr. 241. office"™''""' '° It is a contempt ,of Court to remove a ward of Court from the Removal of ward jurisdiction, without the sanction of the Court; and the Court will *"" ^m^'''''"'' interfere on the application of his guardian to prevent his removal : Re Gillrie, 3 Gr. 279. A guardian appointed either by the Surrogate Court, or by the Guardian e»nnot High Court, has no power to make leases of the infant's lands in his withou?*smetion name : Townsky v. Neil, 10 Gr. 72 ; Switzerv. McMillan, 23 Gr. 538 "'Co"rt. The report of Tovmsley v. Neil appears to be eiToneous in describl ing the guardian, as a guardian ad litem. The sanction of the Court should be obtained to all dispositions whether by sale, or lease, of an infant's estate. 531. ITpon all petitions for the sale of an infant's oa aii petitions estate, the infant is to be produced before a Judge in 'S-'i^toteth. 324 Chancer"^ Oeder 532. i°oduced*?o'^ Chambers, or before a Master. (3rd June, 1853 ; Ord, Judge, or Master. 017 „ c \ Production of in- Where the infant is out of the iurisdiction, and not of an age lant when di8- , . . j ? a pensed with. making his consent to the proceedings essential, his produotioir before the Master may, on application to a Judge, be ordered to be dispensed with : Ee Lane, 9 P. E. 251 ; 8. 0. sub nom. Re Love, 18 C. L. J. .S71. But unless this order be obtained, the infant should in all cases be produced before the Master, even though he be under fourteen years. Infant if over 532. Where the infant is above the aare of seven seven years to be & examine d years he is to be examined, apart, by the Judge or Master, upon the matter of the petition, and as to his consent thereto, as required by the Statute ; and his examination is to be stated to have been taken under this Order, and is to be annexed to and filed with the Exaraination to petition. Where the infant is under the age of seven be attached to 1^ o petition. years, the fact is to be certified by the Judge or Mas- ter before whom he is produced. (3rd June, 1853; Ord. 37, s. 6.) tatute rcqiuires ^^ ^he time this Order was passed the Statute required the con- consent of infant . ^ only when he is sent of an infant to be given, if he was of the age of seven years or wards" °^ ^^ upwards. The Statute has since been amended ; and now the con- sent of the infant is only necessary when he is fourteen years or upwards : see R. S. 0. u. 40, o. 78. It would, therefore, seem that the examination of the infant is no longer necessary where he is under fourteen. But until there is some judicial construction of the Order, it is perhaps safer to adhere to the practice here prescribed. Examination of The Master before whom the infant is examined, should take be tali'en and down his examination in writing, and also his consent, where the certified by JSfas- consent is necessary ; and this should be signed by the infant, and the Master, and attached to the petition : Re Axford, 6 P. E. 192. Where the infant is under fourteen, the Master should not only certify the fact, but also the'fact that the infant was produced before him. Evidence should be given before the Master identifying the infant and proving his age. Chancery Orders 533 — 536. 325 533. The witnesses to verify the petition are also to ^rt°o™etitio™'' be produced before the Judge, or Master, and are to be ^f te examined ■*■ ^ . before Oudge or examined vivd voce to the matter of the petition, and ^^°^- the depositions so taken are to be stated to have been taken under this Order. (3rd June, 1853; Ord. 37, s. 7.) Formerly a suhpmna might be issued under Ord. 266, for the Oral evidence in examination of witnesses in support of the application ; but whether tion, how ob- this practice may still be followed, is doubtful. In Monaghan v. t^'^ed. Dohhin, 2 C. L. T. 260 ; 18 C. L. J. 180, it was held that a witness •could not be examined in support of a motion, without an order ; but see contra Raymond v. Tapson, 23 Ch. D. 430 : 48 L. T. N". S. 403 : and see Ord. 534 infra. 534. The Masters of the Court are authorized to Maftei-s author- ized to take ex- examine infants and witnesses under the preceding ''™"='"™,^'*- ^ o out special order ■Order, without special order or reference. (3rd June 1853; Ord. 37, s. 8.) Probably not only the Masters in Chancery holding ofince when The Judicature Act came into operation, and their successors, have power to act under this Order, but also the County Judges, who under J. A. s. 64, become ex officio Local Masters. The duties and powers of the latter class of Masters do not, however, seem to be very clearly defined by The Judicattire Act. 535- Upon a petition so verified, the Court may either court may gram ■*■■*■ 111 relief or require grant the relief prayed at once, or make such order as further evidence, to further evidence, or otherwise, as the circumstances of the case require. (3rd June, 1853 ; Ord. 37, s. 9.) 536. Where, bv an order, a day is reserved for an Day (» show •' . 1 n I cause. Notice to infant defendant to show cause, it shall not be neces- be served on in- fant in lieu of sary to issue a subpoena to show cause against the subpoena, order, but the plaintiff is to serve the defendant after he attains twenty-one years of age, with an office-copy of the order, indorsed wdth a notice in the form set forth in schedule W. 326 Chancery Ordeks 537 — 538. Day to show It is still necessary to give an infant a day to show cause in iudg- eause must be •/ a n i reserved in jnig- meuts for foreclosure : Gray v. Bell, 46 L. T. N. S. 521 ; and see Sito^to fore- ^"^- *34, note. This Order wouldi therefore, seem to be still in closure. force in all the Divisions of the High Court. Committees of 537- Committees of the persons and estates of luna- Jimatios to be ■*• appointed in tics, idiots, and persons of unsound mind, and aruar- same manner as ^ ^ -*■ ^ ' o Keceiyers. dians, excepting guardians ad litem,, are to be ap- pointed in the same manner as Receivers, as nearly as circumstances will permit. (3rd June, 1853; Ord. 38, s. 2.) The mode of appointing Eeceivers, is regulated by Ord. 278, et acq. As to passing accounts of Eeceivers, and Committees of Lunatics, see post Ord. 588. XL.— MISCELLANEOUS. S)jecUon°o ™ *° 538- No suit is to be open to objection on the ground ^eiarato^de- ^^^^^ ^ merely declaratory decree or order is sought cree is sought;, thereby; and the Court may make a binding declara- tion of right without granting consequential relief. (3rd June, 1853 ; Ord. 28.) {Imf. Act, 15 & 16 V., c. 85, s. 50.) Declaratory xhis Order would appear to be still in force : see Cox v. Baker, 3 granted in favour Oh. D. 359. It was formerly held only to apply to cases where the wou°d noT be en- pl^iii^iff ''^^^ entitled to relief consequent upon the declaration he titled to relief, asked, if he chose to claim it, but it was held not to apply to cases where the plaintiff was not entitled to claim any relief conse- quent upon the declaration : Moohe v. Lord Kingidown, 2 E. & J. 753 ; Clarke v. Cook, 23 Gr. 110 ; Cogswell v. Suqden, 24 Gr. 474. Thus, a decree was pronounced declaring the true construction of a vnW, without directing administration, in a case where the plain- tiff was entitled to the latter relief if he desired it : Murphy x. Murphy, 20 Gr. 575 ; and see Canada Central E. W. Co. v. The Queen, lb. 303. Cases in which A declaratory decree has been refused, where it was sought for the decrees have purpose of protecting the plaintiff, against a contingent claim by the been refused. defendant : Jackson v. Turnley, 1 Drew 617 ; and see Cogswell v- Sugden, supra ; and also where it was sought to affect future rights Chancery Ohdebs 539 — 541. 327 in events whicli had not happened ; Langdale v. Briggs, 8 D. M. & G. 391 ; Dowling v. Dowling, 1 Chy. App. 612 ; or persons entitled in reversion : Garlkh v. Lawson, 10 Ha. App. xv ; or not in e>ise, Briglif- V. Tyndall, 4 Ch. D. 189 ; or to declare o, purely legal question ag against infants, even by consent ; Webb v. Byng, 8 D. M. & G. 633 • De Wivdt v. De Windt, 1 L. E. H. L. 87 ; or to declare a merely legal rig-ht : Trustees of Birkenhead Docks v. Laird, 4 D. M. &; G. 732 ; Briatow v. Whitmore, 4 K. & J. 743 ; Metropolitan Board of Works V. Sunt, 7 L. R. Eq. 197 ; Jenner v. Jenner, 1 L. R. Eq. 361. But in some cases the Court has made a decree declaring future Cases in ■K-hicb rights. Thus the question of the right of renewal, on which a lessee's rteht'made " claim to compensation for land taken by a railway depended, was declared ; Bogg v. Midland B. W. Oo., 4 L. R. Eq. 310 ; and, to save expense, it has construed executory marriage articles : Byam v. By am, 19 Beav. 58. Order 539 provided that where, according to the former practice, Ord. 539. the Court was in the habit of refusing equitable relief, until the party seeking such relief had established his legal title at law. The Court would itself determine the legal right, or might direct it to be established at law. It is obviously now obsolete. 540- In all cases where, according to the present court, or judge, practice, a reference to the Master would be directed, matters without i^N T p 1 •iip'^'i referring the the Court may dispose oi such matters itselr, it it case to a Master thinks fit, and may direct the proceedings to b^ taken in full Court, or in Chambers, as it finds expedient. (3rd June, 1853 ; Ord. 33, s. 1.) This Order is still in force. It is usually acted upon only in simple cases, to save the expense of a reference to a Master. The most usual instance of its application being, where the account necessary to be taken involves a mere computation. In such a case the Judge usually directs the Registrar to ascertain the amount, and it is then inserted in the judgment, or order, as the finding of the Court. Occasionally, however, the accounts in an administration suit have been taken under this Order. 541 The Court may obtain the assistance of account- court may obtain ^ . , . services of es- ants, merchants, engineers, actuaries, or other scien- perts. tific persons, in such way as it thinks fit, the better to enable it to determine any matter in evidence in any 328 Chancery Order 541. cause or proceeding, and may act on the certificate of such persons. (3rd June, 1853 ; Ord. 33, s. 2.) Imp. Act,l-r> cfcl6, V.,c. SO, s. 42. Master cannot •employ experts. Costs of expert may be allowed though improp- erly employed. This Order is still in force ; see Hawkins v. Mahaffy, 29 Gr. 326. It is only the Court that is authorized to obtain the assistance of experts. A Master to whom a cause is referred, has no authority to employ experts for the purpose of assisting him to come to a con- clusion on matters referred to him : Re Robertson, Robertson v. Ro- bertson, 24 Gr. 555 ; Mildmay v. Lord Melhuen, 1 Drew. 216 ; 16 Jur. 965 ; but see contra. Re London <£• Birmingham R. W. Co, 6 W, E. 141. Where, however, the Master had, at the instance of the plaintiff, and with the consent of the creditors, in an administration suit, employed an expert, and the parties received the benefit of his services without objection, the Court on appeal by the creditors refused to disallow the costs incurred : Re Robertson, Robertson v. Robertson, supra. r^^se'to'griint Where a plaintiff proves himself entitled to an injunction against relief against ^ nuisance, or other injury, the Court cannot, before pronouncing nuisance until . , -, ^ , .. inquiry made by judgment, order an expert to be employed, for the purpose of ascer- m?v ^e'bSt" taining the best mode of removing the nuisance, &c. , even though abated. the injunction to which thejplaintiff is entitled, be a difEcult one for the defendant to obey: Attorney-General v. Colney Hatch Asylum,, 4 L. R. Ohy. 146 ; and a general inquiry as to what ought to be done to preserve the plaintiff's light, and air, was refused : StoTces v. City After judgment Offices Co. 13 W. R. 537. But after judgment, the opinion of an «.xperc may be expert may be taken, as to the time which ought to be allowed, for carrying it into effect : Attorney-General v. Merthyr Tydfil, 5 W. K. (1870) 148. Expert cannot An expert cannot call witnesses: Morris v. Llanellu R. W. Co., call witnesses. ^ ^ ' His reports not W. JN. (68) 46; and his report is not conclusive: Ford v. Tynte, 2 '"-■" D. J. s. 127 ; Adamson v. Gill, 16 W. E. 306. conclusive. ^xperriMiybe"' Where an expert is employed, it is not absolutely necessary that txparU. the appointment should be made in the presence of the parties : Re London and Birmingham R. W. Co., 6 W. E. 141. Cases in which An expert has been employed to ascertain the effect of a dam on exper appoin e . ^.^^ y^ter penned back : Hawkins v. Mahaffy, 29 Gr. 326 ; and the amount of encroachment of alluvium on a sea shore ; Attorney-Gene- ral V. Chambers, 4 D. G. & J. 55, 58 ; and as to the effect of using steam boats on a canal : Case v. Midland R. W. Co., 27 Beav. 247. CHA>rcERY Orders 542 — 544. 329 542. Where on a proceeding before an officer of the ^Jj™^;^^!""^^ Court, pleadings or other documents, filed with c^tr°ttranott«. another officer of the Court, are required, the officer with whom the pleadings or other documents are filed, is, upon production of a certificate signed by the officer requiring the pleadings or other documents, that the same are required for some proceeding before him, to transmit the pleadings or other documents mentioned in the certificate. This Order is still in force. Where pleadings or other documents in an action are required at the trial, their production may be pro- cured in the Chancery Division, under Ord. 165 ante. Where the documents in some other cause are required to be^J°^™g^™°^ produced, an order should be obtained. When a party in his °*er causes may affidavit on production referred to documents produced by him, and in the custody of a Deputy Registrar in another suit, an order was made ex parte for their production : Gainer v. Doyle, 2 Chy. Ch. R. 279 ; but see Hamelyn v. White, 6 P. R. 143. On a motion to produce documents in another cause at the trial it should be shewn that the original documents are required, and that the production of office copies will not be sufficient : Cliadwich v. Thompson, 2 Chy. E5°t^'^''?'^tfon Ch. R. 389; Jarvis Y. White, 8 Ves. 313. Attorney-General v. i2rt?/, of originals is 6 Beav. 335 ; Anon., 13 Beav. 420 ; and ordinarily, an application f qj. "ecesaary. the order must be on notice : Lamb v. Danbi/, 9 W. R. 765. 543. Where such documents are to be transmitted Documents, how ^ transmitted la from one officer of the Court in Toronto to another, Toronto, they are to be transmitted by delivering the same to the officer requiring the same, or his clerk. 544. Where such documents are to be transmitted Io"Sments Tor by an officer of the Court in Toronto to one in an Jj„7^t^° """"^ outer County, or from an officer in an outer County to one in Toronto, they are to be sent by parcel post, or by express, and, before they are sent, the party requir- ing their transmission is to deposit a sufficient sum to cover the expense of transmission, and of re-trans- mission to the office from which they are sent. 330 Chancery Orders 545 — 548. ret°uS*'"°'" 645. As soon as the purpose for which any such documents are required is completed, the officer to whom they have been sent is to re-transmit them to the office from which they were sent. Ori 646. Order 546 provided that all defences are to be presented to th& Court by demurrer or answer, or both, according to circumstances, and is now obsolete. XLL— SUPPLEMENTARY ORDERS. he cerMeTby "^ 547- Office copies of decrces to be served on persons trMsi^ ^"^ made parties in the Master's office, may be certified by the Deputy Registrar at the place where the reference is being prosecuted. (5th Oct. 1859.) This Order is still in force, and now applies to judgments, instead of decrees as formerly. Offloe copies, how Office copies are copies authenticated by the proper officer. In order to enable a local officer to authenticate a judgment which has not been entered in his own office, an authenticated copy must be produced to him, with which other copies may be compared. It has been usual to mark them "Examined," and stamp them with the seal of office of the officer who certifies them. The power here conferred on Deputy Registrars may now be exer- cised by Local Registrars, and Deputy Clerks of the Crown, as well as Deputy Registrars : Hiile S. C. 417. The right to certify office copies under this Order, has-been in practice extended to cases where an office copy is required to be served on parties interested, but who are not made parties : see Ord. 60. Copies of docu- 548- A party requiring a copy of any pleading or demanded in affidavit is to make a written application for the sam& to the solicitor of the party by whom it has been filed, or on whose behalf it is to be used; and where the party has no solicitor, then to the party himself. (3rd June, 1853 ; Ord. 43. s. 4.) Chancery Ordees 549 — 550. 331 The Order is still in force as to affidavits, but it would seem no longer applicable to pleadings, ivhich are now required to be served without a demand : M-ule S. C. 131, Holmested's Manl. Pr.92. The practice prescribed by this Order is now followed in all the Divisions. An irregularity in the indorsement of the affidavit is waived by demanding a copy : Bennett v. O'Meara, 2 Chy. Ch. R 167. 549- Where an application is made for a copy of where copy of ^ ^ ^ '^ document de- any pleading or affidavit, it is to be delivered within manded, it ia to r: be furnished lorty-eight houi's from the time of the demand ; and "'twu is hours, any further time which may elapse before the delivery is not to be computed against the party ^demanding the same. (3rd June, 1854 ; Ord. 43, s. 4.) This Order would seem to be still in force as regards affidavits. Copies of affida- It is imperative, and the Court will enforce compliance with it : famishing."' Totten V. Macintyre, 2 Chy. Ch. E. 80 ; Burrows v. Hainey, 2 Chy. Ch. R. 186. Formerly the costs of furnishing copies were part of the costs of the cause, or application, and payment of the costs of the copies could not be required as a condition of furnishing them_ whether the Rules S. 0. are intended to make any change in this respect is not very clear, see Bide S. C. 433. At law a party requir ing copies of affidavits, had formerly to obtain them from the officer with whom the affidavits were filed on payment of the usual fees, but the practice prescribed by Ord. 548, is now followed in the Q. B. & C. F. Divisions, and this Order would also seejui now applicable to all the Divisions. DECLARATORY ORDERS. 17th October, 1868. 550- In Orders 88 and 120, the word "month" is ^^■'^g"''^^ ^J^ to be read as lunar month ; in Order 200 the word 288. " shall " is to be read as permissive ; in Order 288 the words " with the Registrar " are to be struck out ; and in Schedules C. D. N. and S. the word " Registrar " is to be struck out wherever the same occurs, and the words, " Clerk of Records and Writs " inserted in lieu thereof. This Order is still in force to a limited extent. Ords. 88, 120, and 288, and the forms in schedules C. D. N. & S. are now obsolete. 332 Chancery Orders 5o1— 553. Mttirdown ™ 551- ^^ accordance with the practice heretofore pre- causes. vailing in the office of the Registrar, the fee of payable on setting down a cause with the Clerk of Records and Writs, is to be payable only on the set- ting down of causes for examinination and hearing, or motion for decree, or on bill and answer; in all other cases the fee on setting down a cause is to be fifty cents. Aaaitionaiifees rjr-j^Q following fees, which before the naming of a payable to ClerK » ' ^ ofR.&w. Clerk of Records and Writs, were payable to the Reg- istrar, are now to be payable in the office of the Clerk of Records and Wi'its : — Every Certificate for Registration $0 50 Enrolling Order 50 Drawing Order, per folio 20 Entering same when necessary, per folio 10 Entering Certificate of Title or Conveyance, per fo. 10 This Order is now in force only so far as it prescribes fees for pro- ceedings for which no provision is made in the old Common Law Tariff : see Rule S. C, 432. rourteeii days' 552. A notice of motion under Order 467 is to be notice of motion _ , , . , i , p , i foradministra- scrvcd upon all propcr parties at least fourteen days ' before the day named for hearing the application. It is doubtful how far this Order is iu force. It has not been expressly retained by the Rules S. C. , but see Rule S. C. 3, which expressly retains Ords. 467 and 638, and see Holmested's Manl. Pr. 216 ; and see construction placed on Rules S. 0. 3, Trust & Loan Co. V. McCarthy, 19 C. L. J. 188 ; 3 C. L. T. 366. The words " at least, " indicate that the notice is to be fourteen clear days. Rinnohr v. Marx, 3 C. L. T. 31. ORDERS OF 10th SEPTEMBER, 1869. Fees payable for 553- In all suits or proceedings which, before the Brocssdinfirs -,_ within former passing of "The Law Refoi-m Act of 1868," might jurisdiction of ' i , . , ■ , j i . i , '", c. c. have been brought, instituted, or carried on under the equity jurisdiction of the County Courts, and which Chancery Order 553. .?33 are now pending, or which may hereafter be brought or carried on in the Court of Chancery, the fees and disbursements set forth in the Schedule hereto may be charged in respect of the services therein enumerated. The tariff prescribed by this Order is continued in force by Rule 8. G. 515, which is as follows : ' ' 515- In aU actions which (before the passing of The Ontario RMe S. C. 615, Judicature Act, 1881, and the Laio Reform Act of 1868) might ^'hi^the^for- have been brought under the equity jurisdiction of the County ™^?'.'^'l^'*yj"™' Court, and which are now carried on in the High Court of Justice, such fees and disbursements may be charged as are fixed by the lower tarifif referred to in Order 553 of the General Orders of the Court of Chancery, and for all fees and disbursements not provided for in the said lower tariff may be charged the amounts allowed in like cases by the tariff of the 10th September, 1881, subject, however, to the same proportion of reduction as exists between the said lower tariff, and the higher tariff of the Court of Chancery. " The Taxing Officer is to tax according to the lower scale wherever Taxing officer to that tariff is applicable without any express direction : see Ord. 318 scai^'^applicable. ante ; Brough v. Brantford, 25 Gr. 43. The lower scale is applicable only where the County Court formerly Lower scale, had jurisdiction, in those cases, therefore, where the County Court ^^"^ "PPl'^aMe.. jurisdiction was excluded, the higher scale costs should be allowed. The equity jurisdiction formerly possessed by the County Courts ?o™?r equity was defined by 0. S. U. C. c. 15 as. 34 & 35, which were as follows : c. c. " 34. Any person seeking equitable relief may (personally or by o. S. tJ. c, c. 16, attorney) enter a claim against any person from whom such relief is ^' ^*' sought, with the clerk of the County Court of the county within which such last mentioned person resides, in any of the following cases, that is to say : " 1. A person entitled to, and seeking, an account of the dealings Partnership, and transactions of a paktnebship dissolved or expired, the joint stock of capital not having been over |800 ; "2. A Crbditok upon the estate of any deceased person, s>ioh A^^^^^'j^ton creditor seeking payment of his debt (not exceeding $200) out of the deceased's assets (not exceeding |800) ; "3. A Legatee under the wOl of any deceased person, such Suit for legacy legatee seeking payment or delivery of his legacy (not exceeding ^ ^'' ^' S200 in amount or vplue) out of such deceased person's personal assets (not exceeding ! 334 Chancery Order 553. Administration, "4. ^ Residuaky Leoatee, or one of tlie residuary legatees of legatee. any such deceased person, seeking an account of the residue and payment, or appropriation of his share therein, (the estate not ex- ceeding $800) ; " 5. An Executor, or Administrator, of any such deceased person seeking to have the personal estate (not exceeding $800) of such deceased person, administered under the direction of the Judge of the County Court for the county within which such executor or administrator resides ; "6. A Legal, or Equitable, Mortgagee, whose mortgage has been created by some instrument in writing, or a judgment creditor having duly registered his judgment (a), or a person entitled to a lien or security for a debt, seeking foreclosure or sale, or otherwise, to enforce his security, where the sum claimed as due does not ex- ceed $200. Redemption. "7. A PERSON ENTITLED TO REDEEM any legal or equitable mort- gage, or any charge or lien, and seeking to redeem the same, when the sum actually remaining due does not exceed $200 ; Eanitable relief. " ^- ^^^ PERSON SEEKING Equitable Relief for, or by reason of any matter whatsoever, where the subject matter involved does not exceed the sum of $200." Or personal representative. Mortgage suits for foreclosure, or sale. Injunctions. "35. Injunctions to restrain the committing of waste, or trespass to property, by unlawfully cutting, destroying, or removing trees or timber, may be granted by the Judge of any County Court ; and such injunction shall only remain in force for a period of one month, unless sooner dissolved on an application to the Court of Chancery ; but the power to grant such injunction shall not authorize the pro- secuting of the suit in the County Court ; and the injunction may be extended, and the suit further prosecuted to judgment, or other- wise, in the Superior Court in the like manner as if the same had originated in that Court." It will be observed from section ,34, that in order to give a County Court jurisdiction, all the defendants must have been resident in the same county ; and in administration suits by executors or administrators, both plaintiffs and defendants must have been resi- dent in the same county, in order to give a County Court jurisdic- tion. No jurisdiction if Thus in a mortgage suit, where some of the defendants were out all defendants _ the jurisdiction : Lawrason v. Fitzgerald, 9 Gr. 371 ; SixUv v. Skellv did not reside m ' . ' " '^"■■^"'u, the same county. 18 Ur. 495 ; or did not reside in the same county : McLeod v. Milla^ 12 6r. 194, the County Court had no jurisdiction. (a) Registration of judgments was afterwards abolished in 1861 by 24 Vict. c. 41, s. 7. Residence of parties, affected right of action in C. C. Chancery Ordek 553. ' 335 Bat if a person out of the jurisdiction is unnecessarily added as pefenda?* out of -a party defendant, that does not entitle the plaintiff to costs on theSsSy mSde higher scale, if the action would otherwise have been within the " f^"y- jurisdiction of a County Court : Scott v. Burnham, 19 Gr. 238. Where the plaintiff's claim is within the former jurisdiction of Claims of incum- a County Court, but there are incumbrancers, who are required to of°o°n jSsSon be made parties, whose claims exceed the jurisdiction of the County of 0. C. Court, the plaintiff is entitled to costs on the higher scale : Hyman V. Roots, 11 Gr. 202 : Seath v. Mcllroy, 2 Ohy. Ch. E. 93 ; Mitchell V. Martin, 2 C. L. J. , N. S. 249. But where creditors, whose claims in the aggregate were under Administration. ?200, obtained the usual administration order, and it was shown that the value of the estate, including lands, was under $800, and that the lands were subject to a mortgage, on which there was due $199 10, it was held that the existence of the mortgage did not entitle the plaintiffs to costs on the higher scale : Re Scott, Hethering- tonv. Stevens, 15 Gr. 683. But where the estate administered exceeds $800, the plaintiff is entitled to higher scale costs, though his claim be under $200 : Goldsmith v. Goldsmith, 17 Gr. 213. But where the plaintiff's claim is within the jurisdiction of the value of property County Court, he is entitled only to lower scale costs, no matter what °H'. °5« '''"w 4. the value of the property may be out of which he seeks to recover it: recover isimma- Forrestv. Lmjcock, 18 Gr. 611. ""*'■ Suits for foreclosure, or sale, could only be brought under clause 6, Foreclosure, where the mortgage was created by some written instrument ; a mortgage by deposit of title deeds unaccompanied by any written instrument, could not have been enforced in a County Court, unless the case could be brought within clause 8. Where the mortgagee was entitled to proceed under clause 6, the value of the mortgaged estate was immaterial ; but where the case was governed by clause 8, it would seem the value of the mortgaged estate would be " the subject matter involved," and the jurisdiction of the County Court would have been excluded if it exceeded $200. Even in cases where the plaintiff's claim was under $200, if there were subsequent incumbrancers on the property, whose claims ex- ceeded $200, the jurisdiction of the County Court was excluded : Mitchell V. Martin, 2 C. L. J. N. S. 249. On a bill filed by a mortgagor for an account, where the mortgagee had exercised his power of sale and realised $350, and on taking the account only $130 was found due to the plaintifl^ it was held " the subject matter involved" was the $350, and the plaintiff was there- fore entitled to costs, on the higher scale : McOillicuddy v. Griffin, 20 336 Chancery Order 554. iDjunotion. (Jr. gi ■ and where, besides a money demand within the jurisdiction of the County Court, the plaintiff claimed an injunction, and to have certain fences erected and maintained the costs were allowed on the higher scale : Brough v. Brantford, 25 Gr. 43. And in a suit by a Spmflc peitorm- purgiiaser for specific performance of a contract for the sale of land for a sum under $150 ; but before suit the plaintiff had entered and improved the land and increased its value to more than $200, it was held that "the subject matter involved" was over •?200, and higher scale costs were allowed : Kennedy v. Brown, 6 P. R. 318. Partnership. Actions for a partnership account could only be brought in a County Court under clause 1 of sect. 34, where the partnership was dissolved, or expired. A suit, therefore, for dissolution of a partnership, could not have been entertained in a County Court unless it could have been brought within clause 8, and see Blaney v. McGrath, 9 P. K 417. Certificate to be 554. The solicitor or party instituting any suit or ing'ltdt, wher"'^ proceeding, in respect of which he claims to pay the lower scale tariff /» i? /~i j. n* j. j.i • i j_ • iv • j_ j21 is applicable. ices 01 Oourt, according to the said tariti, is to nie with the Clerk of Records and Writs, or the Deputy Registrar, a certificate in the form hereunder set forth, of which certificate the Clerk of Records and Writs or Deputy Registrar, as the case may be, is, at the request of any solicitor or party acting m person in the suit or matter, to mark a copy. /^ ^ cTj V . Sule S. C. 515 having continued the lower scale tariff it would seem Ord . 554, how far *^ in force. that this Order is also by implication continued in force : see con- straction placed on Rule S. G. S ; Trust & Loan Co. v. McCarthy, 19 C. L. J. 188 ; 3 C. L. T. 366 ; and see Rule S. G. 445. This Order is directory, and the omission to file a certificate does Order is dire^ toiy. not entitle a defendant on dismissal of the action, to higher scale fees except for fees of Court actually paid by him : Ferguson v. RutUdge, 18 6r. 511. It applies only where the plaintiff admits that the lower scale is applicable. PrimS, facie in every action commenced in the High Court of Justice, the fees of Court are payable according to the higher scale. The certificate should be filed on the issue of the writ, with the officer by whom it is issued. There being no practice at law on this point, it is presumed the practice prescribed by this Order will be followed in aU the Divisions of the High Court. Chancery Orders 555 — 556. 337 The form of oertifieate needs variation to meet the altered oiroum- Form of certifl- stances, and the following is now suggested as a proper form to be b?ought''unde? adopted :. lower scale. In the High Court of Justice. Division. ( Title of cause or matter. ) I hereby certify that to the best of my judgment and belief, the tariff of fees under the orders of the Court of Chancery of 10th Sep- tember, 1869 is under Rule 515, applicable to this case. Dated, &o. A. B., Solicitor for 565. On production of a copy of the certificate, the on production of officers of the Court are to receive and file all papers i»wer scale fees ■"^ -^ to be charged. and take ail necessary proceedings upon payment by stamps, or otherwise, as the case may be, of the proper fees, according to the said tariif. This Order, it is presumed, is also retained in force : see note to preceding Order. 656. In every case certified for the said tariff in where party he- , . , comes entitled which it may happen that the Solicitor becomes enti- »» «n<5'i''*e " c> fees of Court to contained in the Consolidated General Orders of 23rd'"=™^<''=sood. June, 1868, the deficiency in the fees of Court is to be made good. This Order, it is presumed, is also retained in force : see note to Ord. 554. It appears by this Order that the Court is not bound by the plain- Court may tiff's claim to bring the action under the lower scale, but may award on higher costs according to the scale properly applicable. b°*u'ht on''the- It would seem that the deficiency to be made good under this Order, is the difference in the fees of Court which have been previously paid under the lower scale, and the amount which should have been paid according to the higher scale, by the party to whom the higher scale costs are awarded. It would not seem to include the deficiency in fees paid by the opposite party, and even if it did, therg seems to be ho means of enforcing the payment of the deficiency. 43 338 Chancery Orders 557 — 559. h^nvISl^Z^ 557- In any case in which the fees of Court have Si'i'n''ifcZ'e tieen paid, according to the tariff contained in the k'l'ptuSr'''" '^°'i®°^^<^**®'i ^^'1®''^^ Orders of 23rd June, 1868, and au^e"?ndfs- in which it may happen that the Solicitor becomes SgOTcer.'''''^" entitled to charge and be allowed his own fees, only according to the tariff to these Orders, the excess of fees of Court so paid may be allowed upon the taxa- tion of costs, if the circumstances of the case, in the judgment of the Taxing Officer, justify such allowance. This Order, it is presumed, is also retained in force : see note to Ord. 554. ■Ord. 56?. It provides for the converse of the ease covered by the preceding Order — viz : where the party awarded costs has paid fees of Court according to the higher "scale, and is only awarded lower scale costs. In such cases the extra disbursements may be allowed in the discre- tion of the taxing officer. Order 558 provided that the Judges' Secretary should be sole Inspector of Titles, and Referee of Titles at Toronto under The Quieting Titles Act, it is superseded by Ord. 633 post. ORDERS OF 23BD FEBRUARY, 1871. The Judges of the Court of Chancery for Ontario, do hereby in pursuance and execution of all powers and authorities enabling them in that behalf, order and direct in manner following : — Certain orders abrogated. 559. The Orders of this Court numbered 14 to 22 inclusive, 31, 329, 355, 415, and 416, are hereby abro- gated. Orders 14-16 enabled the Accountant of the Court of Chancery to discharge the duties of a Master. These Orders were subsequently revived by Ord. 598, but are now effete. The other Orders abrogated related to the duties of, and appeals from, the Judges' Secretary ; the signing of cheques ; and the sittings of the Court. Chancery Order 560. 339 REFEREE IN CHAMBERS. 560- The Referee in Chambers is hereby empow- Juriedietion of ■J , , , - . 'J r ItefereeinCham- «rea to do any such thing, and to transact any such ^"■ business, and to exercise any such authority and jurisdiction in respect ci the same, as, by virtue of any Statute or custom, or by the practice of the said Court, is now done and transacted by a Judge of the JlS'f'om t^"' Court sitting in Chambers, except the matters fol- J"™'J*<'«°°- lowing : 1. Granting writs of Habeas Corpus, and adjudi- ^/ affecting same. filed negativing *SL5?"'1™'"'* of the stocks, funds, shares, or securities, and the same aliectins same. j j j j do not in the whole exceed in value $600 then, upon an aiEdavit of the woman and her husband that no settlement or agreement for a settlement has been made or entered into before, upon, or since their mar- riage ; or, in case any such settlement or agreement for a settlement has been made or entered into, then, upon an affidavit of such woman and her husband, identifying such settlement or agreement for a settle- ment, and stating that no other settlement or asrree- ment for a settlement has been made or entered into as aforesaid, and an affidavit of the solicitor of such woman and her husband, that such solicitor has care- fully perused the settlement or agreement for a settle- ment, and that according to the best of his judgment the stocks, funds, shares, or securities, are not, nor is any part thereof subject to the trusts of any settle- Chancery Orders 575 — 577. -345 ment or agreement for a settlement, or in any manner comprised therein or affected thereby, the Accountant may transfer or deliver such stocks, funds, shares, or securities to such married woman. 575- A similar course to that mentioned in Orders stocks, &e., may -H-o I;,-..,, 1,1., 1 ^ he transferred. otd ana ov* is to be adopted m the case, of money or money paid directed to be paid, and of stocks, funds, shares, and marries, after order for pay- securities directed to be transferred or delivered tomo"'- a woman who afterwards marries, where the aggre- gate value of such money, stocks, funds, shares, and securities does not exceed $600. If the fund exceed $600 the money cannot be 'paid out, or stock Settlement of transferred, without a special order, in which the Court will provide ^aived"*^ for the settlement of the fund before paying it out ; and where the applicant is an infant, it has been held she has no power to waive her equity to a settlement : Shipway v. Ball, 16 Oh. D. 376 . 44 L. T. N. S. 49. But where the husband and wife are of age, the Court will order the money to be paid out without a settlement if tlie parties appear by separate solicitors, and consent : Cline v. Cline, before Blake, V. C, 8th March, 1875 ; but see Tompkins v. Holmes, 14 Gr. 245, where a wife was directed to be examined before a Master, apart from her husband, as to her consent to abandon a fund in litigation. 576. Where money is directed to be paid out of Moneys payable _ ■ J. , to legal personal Court to persons to be named m an order or a report, representatives and a sum is reported or found to be due to any per- survivor of them, sons as legal personal representatives, the same or any portion thereof for the the time being remaining unpaid may, upon proof to the Accountant of the death of any of them, be paid to the survivors or, survivor of them. 577- Where money is directed to be paid out of Court to the legal personal representatives of any person, or to any persons as legal personal representa- tives, the same or any portion thereof for the time being remaining unpaid may, upon proof to the 44 34)6 Chancery Orders 578 — 580. Accountant of the death of any of such legal per- sonal representatives, whether before, on, or after the day of the date of the order, be paid to the surviv- ors or survivor of them. Money directed 578. Where monev is directed to be paid out of to be paid to „ , ^ a person, or Court to anvSperson named in the order, or named bis legal personal ' "■ representatives, or to be named in any report, or his legal personal may be paid to ./ jr ' o j. the latter or the representatives, the same, or any portion thereof for survivor of ■*■ ' %' l them. the time being remaining unpaid, may, on proof to the Accountant of the death of such person, whether before, on, or after the day of the date of the order, be paid to such legal personal representatives, or the survivors or survivor of them. stocks, &c., di- 579. Where stocks, funds, shares, or securities, are rected to be , r. ,-^ transferred to « directed to be transferred or delivered out of Court person or his representatives to the legal pei'sonal representatives of any person, may be trans- o jt i xi r ' ferred to latter, or to any persous as legal personal representatives or survivor ot J r or r them. of any person, the Accountant may, upon proof of the death of any such representatives, whether before, on, or after the day of the date of the order, transfer, or deliver such stocks, funds, shares, or securities to the survivors or survivor of them ; and where stocks, funds, shares, or securities are directed to be trans- ferred and delivered out of Court to any person or his legal personal representatives the Accountant may, upon proof of the death of such person, whether before, on, or after the day of the date of such order, transfer or deHver such stocks, funds, shares, or secu- rities to such legal personal representatives, or the survivors or survivor of them. No money to be 580- No principal sum of money, nor any stocks, transfiirred, un- f unds, shares, or securities, shall, Under Orders 578 and der probate, or ' ' ' ' administration 579 j^g paj^i transferred or delivered out of Court to granted o years a ' date o}"o?der° for ^^® legal petsonal representatives of any person, under Chancery Orders 581 — 583. 347 any probate, or letters of administration, purporting toP^Y^fer*" be granted at any time subsequent to the expiration of six years from the day of the date of the order directing such payment, transfer, or delivery. 581. No interest or dividends shall, under Order interest, or divi- -i-o 1- • T (* r~i TIT dends, not to be 0/8 be paid out of Court to the legal personal repre- paw under pro- . ox i tjjjty Qj. admjnis- sentatives of any person, under any probate, or letters tration granted 6 ^ i- "J- ' years, subse- of administration, purporting to be granted at any qufot to date of ' r r o o J order for paj'- time subsequent to the expiration of six years after™™''"'??' ^ L J payment or inter- the day of the date of the order directing such pay- «^' " dividends^ ment, or after the last receipt of such interest or divid- ends under such order, which shall last happen. 582- Where money is directed to be paid out of Money found due to partners Court to any persons named or to be named m an may te paid to ^ any one of them, . order or report, and such money shall, by such order or report, be found to be due to them as partners, the same may be paid to any one or more of such part- ners. 583- Where an order directing the investment from under order ° , . . directing invest- time to time of any interest or dividends accruing ment of interest, '^ ° or dividends, in upon any stocks, funds, shares, or securities standing s'^^=^^^=-'^^<^- in the name of the Accountant, in trust, in or to ^"^^^^^^^^^-^^ credit of any cause, matter, or account, or upon any ^'J?^ ;*"^^j'J stocks, funds, shares, or securities which may be "^'^^^f"'^"* '»• directed to be transferred into the name of the Ac- countant, or to be carried over from one account to another, or upon any stocks, funds, shares, or securi- ties which may be directed to be purchased with any cash in Court, or with any cash to be paid into Court with his privity, is brought to the Accountant for the purpose of having such direction for investment car- ried into effect, the Accountant may, from time to time, until he receives notice of an order to the con- trary, without any further request, invest the interest ■348 Chancery Order 584. or dividends so directed to be invested, together vs^ith all accumulations of interest or dividends thereon, as soon as conveniently may be after they accrue due and have been received, in the purchase of the partic- ular description of stodks, funds, shares, or securities named in the order directing such investment,, and place such stocks, funds, shares, or securities, when purchased, to the credit of the cause, matter, or account respectively, as may be directed by such order. MASTERS' OFFICES. ^Sdeia^in ^^^ Where there is undue delay in prosecuting a prosecuting a reference in the office of the Master in Ordinary, or reference, Master ^ may close it. a,ny local Master, he may issue his warrant to , the solicitors or parties interested, which may be trans- mitted by post, calling upon them to show cause why the reference should not be duly proceeded with. In default of sufficient cause being shewn to excuse the delay, or upon default being made in attending upon the return of the warrant, the Master is to certify to the Court the circumstances of the case ; and there- upon the reference in his office is to be deemed closed, and is not to be resumed until further order. Thia Order is still in force in all the Divisions. Englisli practice In England a somewhat similar practice prevails ; there the Chief occurs ta prose- Clerks from time to time go through all matters pending before them, cution of «uit3. and in those cases which have been left unattended to by the solicit- ors having the conduct of the cause or matter, they address a formal notification to such solicitors, pointing out the excessive delay, the present position of the matter, and informing them unless the matter is attended to, it will be handed over to the official solicitor of the Chancery Division. See Law Times Jour, for '2l8t December, 1878, p. 133. This Order, however, only provides for closing the reference. After it has been closed under this Order, an application must be made to the Court before it can be resumed. The object of the Order is to Chancery Orders 585—587. 34^ protect the Court and its officers from any responsibility for undue delays in the prosecution of references, and its provisions should, therefore, be strictly observed by the Masters. When a reference has been closed in pursuance of this Order, it has been the practice heretofore for the Master to forward to the Registrar the certificate of the circumstances of the case— such certifi- cates should now be forwarded to the Registrar of the Division in which the action is pending. 585. In all cases under the foregoing Order, the "aster may .»«■ , ., o Q order payment Master may order payment of fees and costs in such "f ^^'sofuro- ceedings under manner as he thinks fit. order 684. This Order is in force in all the Divisions. The Master has no power to order costs to be paid except in such cases as he is empow- ered to do so by statute, or General Orders : see note to Ord. 225, ante. Under this Order he may make an order for payment of costs, which may be enforced by execution. 586. Where an appointment fails by reason of the J^'^^^^^ "Tt^^l non-attendance of any party, and the Master does notj^^^'^j^^™*^^?^' think fit to proceed ex parte, he may fix the amount of costs to be paid by the absent party to the party attending upon the appointment. This Order is in force in all the Divisions. The Order merely authorizes the Master to fix the costs to be paid, but does not in terms authorize him to order their payment. In order to enforce payment of costs fixed under this Order, it might probably be found necessary to obtain an order in Chambers : see note to Ord. 225 ante. 587. The Master may, while proceedings are pend- Master '"^yjI'P^^ ing in his ofiice, and where he deems it advisable, «<' "<"»• appoint guardians ad litem ; and he may also dis- j^j,d may dis- pense with service of the decree upon the persons ^™"ofTudgment referred to in Order 60 ; and in such case he is to "" ^^ ' "^ state the reasons therefor in his report. This Order would seem to empower the Master to appoint guardians Master's power ad litem for lunatics not so found, as well as for infants. Under B. S. ^i^^^a'dlitSn"' 350 Chancery Order 588. 0. i;. 220, a. 49, the Inspector of Prisons and Public Charities is now constituted ex officio Committee for all lunatics who are confined Service on In- in any public asylum, who have no other committee. But notwith- 'lS'^s°for\unatic standing this statute, a guardian ad litem must still be appointed for not sufficient. any such lunatic, who is a party defendant ; and the estate of the lunatic is not bound by merely notifying the Inspector on behalf of the lunatic : 43 Vict., c. 36, ». 1, (0. ) In cases where it is necessary to appoint a guardian, ad litem, to a lunatic, the procedure prescribed by Ord. 520 et seq. should be followed. Appointment When this Order was promulgated the procedure for the appoint- .Jrtem?to*fnfaSte ment of guardians od Kiem to infants, was regulated by Ord. 520,521, how made. ante, which require notice of the application to be served, and it would seem that the Master can still only appoint guardians ad litem, upon notice, as provided by those Orders. Ord. 610, however, enables the Clerk of Records and Writs, and Deputy Registrars, to issue orders on proscipe ; and it would seem that even when the case is pending before the Master, the cheapest and easiest method of appointing a guardian ad litem for an infant, would be by application under Ord. 610, instead of to the Master, under this Order. .Master m\j dis- The Master may, in a proper case, dispense with service of pense with ser- ^.j^g judgment upon persons referred to in Ord. 60 : and when ser- under Ord. 60. vice on an infant is dispensed with, of course no guardian need be appointed. Thus, when the parties entitled as next of kin are very numerous and difficult to be served, the Master may dispense with service on some of them, and direct one of a family, or class, to be served : Anderson v. Kilborii, 2 Chy. Ch. R 408. As to the eflfect of dispensing with service on parties, see note to Ord. 60, ante p. 49. Master to ap- 588- Where an order directs the appointment of a itereiTeraf and receiver, committee of the person and estate of a luna- pL" accoun'te*" tic, idiot, or pcrson of unsound mind, or a guardian toycourt. ^' other than a guardian ad litem, and does not regulate the matter herein provided for, the Master is to fix the time or times in each year when the person appointed is to pass his accounts and pay his balances into Court ; and in default-of compliance with such direction, the SoncompHanM person appointed may, on the passing of his accounts, toectioM!^''° ^® disallowed any salary or compensation for his ser- vices, and may be charged with interest upon his balances. Chancery Orders 589—591. 351 589. In administration suits reports are, as far as Reports in ad- •11 j.1',11. . . IT, miniBtration possible, to be m the form given in the schedule «uits. hereto. The Master should not, in an administration suit, attach to his report a copy of the will of the testator whose estate is administered : McCargar v. McK'mnon, 15 Gr. 361. SITTINGS OF THE COURT. 590. A Judge will sit in Chambers every Monday, sutirgs of judge and on such other days as the state of business may require, to hear and dispose of such Chamber appli- cations as cannot be heard and disposed of by the Referee. This Order continues to regulate the practice in the Chancery- Division. In the other Divisions a single .Judge sits on Tuesdays and Tridays in each week, except during vacation, for the transaction of 'Chamber business in those Divisions which cannot be taken by the Master in Chambers. 591. Appeals from the Referee in Chambers, or Appeals from ^ . Keferee in from Local Masters and others when they are acting chambers. Local „„.„.! Maaters, and under Order 36 or under the Act for Quieting Titles, under q. t. Act. are to be heard in Chambers, and are to be set down for that purpose on or before the preceding Saturday. Seven clear days' notice is to be given of all appeals under the Act for Quieting Titles ; and two clear days' notice of other appeals from the Referee in Chambers. All such appeals are to be argued by counsel. To be argued by counsel. This Order appears now only to be in force so far as it relates to Appeals under appeals from a Referee of Titles, or the Inspector of Titles, under ^" The Quieting Titles Act. Appeals from the Master in Chambers, and from local Masters, and Prom Master in County Court Judges, when exercising the jurisdiction of the Master Chambers, in Chambers, are now regulated by Rule 8. O. 427. Appeals from Masters' reports, rulings, and certificates, and i.„ni Masters, orders, made in the course of the prosecution of references before 352 Chanceey Orders 592 — 593. them, are still governed by Ord. 642, post, as also appeals from judg- ments for administration, or partition, when pronounced by them under Ords. 63S and 640. Rule S. C. 427, and Ord. 642 are somewhat difficult to reconcile ; but the construction above stated has been adopted in practice, although there does not appear to be any actual decision in its favor. sittiDgs of jupge 592. A Judge will sit in Court on Tuesday, Wed- nesday, and Thursday, and such other days as the state of business may require, in every week, for the despatch of all business other than rehearings and Chamber business. This Order still regulates the practice in the Chancery Division. :. Rule H. 0. J. IV. In the other Divisions a single Judge sits to hear motions in either Division, on Tuesdays and Fridays in each week. During the Vacations special arrangements are made u all the Divisions, of which notice is given from time to time. Business in 593- The busiuess before the Court will be taken as Court, how to he taken. follows : Tuesday. — Motions. Wednesday. — Hearings pro confesso ; and on Bill and Answer : Motions for Decree ; Further Directions ; Petitions ; Demurrers. Thubsday.. — Appeals from Masters' Reports. This Order still regulates the order of business m the Chancery Division : Rule H. C. J. iv. On Wednesday, however, instead of hearings pro confesso ; and on bill and answer ; and motions for decree, — motions for judgment in default of defence, or upon the statements in the pleadings are now heard. . , , Appeals from Masters' reports are now heard in the Chancery Masters heard in Division before a Judge in Chambers on Monday, for which day they must be set down : see Ord. 642. When, however, the Judge in Chambers considers an appeal of this kind of sufficient importance to be argued in Court, it is adjourned to be heard on a Thursday. Chancery Oeders 594 — 595. 353- MISCELLANEOUS. 594. No orders of course, or orders made in Cham- orders required , - to be entered. bers, are to be entered, except : — Decrees issued upon Praecipe ; Decrees against Infanta ; Orders declaring persons Lunatics ; " for Administration ; " for the Sale of Infants' Estates ; " for Payment of Money into or out of Court; " for Foreclosure or Sale ; " of Revivor ; Vesting Orders ; and such other orders as may from time to time, in any particular case or otherwise, be directed to be entered. This Order would now appear to be in force in all the Divisions of the High Court ; and orders, and judgments of the kind therein enumerated, should now be entered as prescribed by this Order, no matter in which Division they happen to be made. J udgments for foreclosure, or sale, in mortgage suits, and judgments Judgtoents and f or administration, or partition, when pronounced in Chambers, must °''<'ej^s to be en- be entered in the judgment book either of the Registrar of the Divi- sion in which the action is pending, or of the proper local officer in the same manner as other judgments. The other orders, not being judgments, enumerated in this Order are entered by the Entering Clerk in Chambers. Where an order, which hadnot been entered, was lost, itwas directed to be redrawn : Ex parte Dean of St. Paul's, 18 W. E. 724. No proceedings can properly be taken upon a judgment or order required to be entered, until it has been entered : see Ballard v. Tomlinson, 48, L. T., N. S. 515. 595. Where a bill is filed in the office of the Clerk orders of course, of Records and Writs, all orders of course in the pro- issued. gress of the cause are to be issued by him ; and where 45 354 Chancery Orders 596 — 597. the bill is filed in the office of a Deputy Registrar, all orders which can be issued by such Deputy Registrar under Order 37 are to be issued by him. This Order is still in force, and applies as well to Local Registrars as to Deputy Registrars. It also now applies to Deputy Clerks of the Grown : Rule S. 0. 417 to'I'ettiemlm.tes ^^^ ^° notice of settling minutes, or passing an how to° be issued o^^d^r is to bs given until the proposed minutes or order, have or has been prepared by, or delivered to, the Registrar ; the notice (where the Registrar deems a notice proper) is to be by an appointment signed by him, a copy whereof is to be served; the proposed minutes or order shall remain in his office for inspec- tion until settled or passed ; and any party may take a copy thereof. The practice prescribed by this Order is still followed by the Registrar and Assistant Registrar of the Chancery Division, when acting as Judgment Clerks under Bule S. C. 416. Style of cause. Short style of cause, Iq what proceediuKS it tnay bo used. 597- In all proceedings in a cause, except Bills, Petitions in the nature of Bills, Decrees, and Decre- tral Orders, the following short style of cause shall be sufficient : " Between John Smith and others, — Plaintiffs, and Richard Roe and others, — Defendants." In case of proceedings which it has been the prac- tice to entitle more shortly, thus : " Smith v. Roe," such practice is to continue. This Order would seem to be still [in force, and to apply to all Divisions of the High Court. For petitions in the nature of bills, must now be understood, petitions presented to the Court praying relief, and not being mere formal petitions, or petitions upon which an order of course may issue ; and for decrees, and decretal orders, must now be understood judgments, or orders in the nature of judgments. Chancery Orders 598—610. 365 In all these proceedings the full style of the action, or matter, is to be ■set out, in other proceedings including aflfidavits, interlocutory orders, notices of trial, to produce, and admit, notices of motion, and notices ■of appeal, the shortened style first given in the Order may be used. The shorter title e. g. Smith v. Roe is usually confined to appoint- ments for settling minutes. Master's warrants, notices of taxation, or other notices and appointments not already mentioned required to be •served in the progress of a cause. There is, however, no authority :for styling affidavits in this way. Orders 598-602. — Are now efifete. Ord. 598 revived certain orders conferring on the Accountant of the Court of Chancery the jurisdic- tion of a Master. Ord. 598 was subsequently amended by substitut- ing for the word "Accountant," the words "Referee in Chambers :" see Ord. 626. The other Orders related to the signing of cheques, and provided for the discharge of the duties of the Referee in 'Chambers during his temporary absence. 603. Orders in Chambers made by a Judge in person Judges orders in T • oi 1 Chambers, how may be signed by the Referee or his Clerk. signea. This Order is still acted upon so far as concerns orders made in Chambers by Judges of the Chancery Division, which are now signed by the Clerk of the Master in Chambers ; orders made in Chambers by Judges of the other Divisions are signed by the Judge making the order. Order 604 gave the Master discretion to increase counsel fees in qj£|_ eoi. •certain cases, and is now effete. See Tariff of Supreme Court items, 158 et seg. Holmested's Manl. Pr. 196. Order 605 is now effete. It related to bringing causes to a hear- ord 655. ing. Its provisions are now superseded by Jiule S. C. 255. Order 606 is now effete. It provided for oounteiisigning cheques, ord. 606. Order 607 is now effete. It provided for the temporary absence oi-a. 607. of the Keferee in Chambers. Order 608 prescribed a tariff of fees. It is now effete : see ord. 608. ■Tariff of Supreme Court. Holmested's Manl. Pr. p. 188 et seq. Order 609 provided for signing cheques during the temporary q^^ g^g^ absence of the Accountant of the Court of Chancery, and is now effete. ORDERS OF 18th FEBRUARY, 1875. 610. In any proceeding in the Court, in which it Gu^rdUns^ a«^^ may be necessary to appoint a guardian ad litem for ™=^y^*^^^^w™t^ proeoipe. 356 Chancery Order 610, an infant the person desiring such appointment shall^ upon an allegation contained in the prcecipe of the infancy of the person for whom such guardian is sought, be entitled to an order ex parte from the Clerk of Records and Writs, or where the bill is filed, or the- proceedings are taken, outside of Toronto, from the Deputy Registrar of the county where such bill is filed, or proceedings are had, appointing a guardian ad litein to such infant. Guardian a(2 "Where an action is for the administration, or partition, of an pointed for in- estate in which an infant is interested ; or where the action is for any fant defendants purpose other than the recovery of money from the infant defendant ■ writ of sum- personally, or of lands, goods, or chattels of which he is personally mong umler Rule ^^ possession, service on the Official Guardian shall be good service on the infant defendant if such infant defendant is resident in Ontario at the time of such service. (a) If in such case there is more than one infant defendant for whom service is to be made on the Official Guardian, one copy only need be so served.^ (6) From the time of such service the Official Guardian shall become- and be the guardian ad litem of the infant unless and until the Court otherwise orders ; and it shall be his duty forthwith to attend actively to the interests of the infant in the action, and for that' purpose to communicate with all proper parties, including the father or guardian (if any) of the infant, and also the person with whom or under whose care the infant resides, in case such person is not the infant's father or guardian ; and the guardian is to make such other inquiries and to take such other proceedings as the interests of the jnfant may require. (c) Any person interested may move before a Judge in Chambers, on such material as he may think proper, for an order appointing a guardian other than the Ofiicial Gviardian so served ; whereupon such order as may be considered most conducive to the interests of the infant, shall be made, and a copy of the order shall forthwith be served on the Official Guardian. " Side S. C. 36. How appointed I* ^iU ^e seen that this Rule -which is grouped with others under for infants in jjig heading " Ser-wcb 01- Writ OF Summons " applies only to the other proceed- „. „ , , ^ , . ••,- .,, . , . . ,. ings. case of infant defendants residmg withm the jurisdiction, who are made parties defendants by the writ in the class of cases mentioned. Where it is required to appoint a guardian ad litem for an infant in any case not covered by Rule S. C. 36 the provisions of this Order ■ Chanckry Orders 611 — 612. 357 apply, at all events in that class of cases which was formerly within the exclusive jurisdiction of the Court of Chancery: Renv. Anthoni/ , 19 0. L. J. 234. Thus, in summary applisations in Chambers for administration, or partition, or upon an original, or interlocutory, petition to which infanta, who are not parties by writ, are mide respondents ; or in cases where the infant defendant is made a party wiwre infant out hy writ, but is out of the jurisdiction, the provisions of this Order of jurisdictioa would seem to apply, and also where the infant is added as a defend- ant by any order to continue the proceedings upon the death, change, or transmission, of interest of any original party to the action or where the infant is added in the Master's oflBce : (See Ord. 587 ■ante,) or is required to be served with an office copy of a judgment under Ord. 60 ; in all of these cases the appointment of a guardian ad litem may be effected under this Order. In cases where the Or is sued for infant is required to be personally served with a writ of summons *' (see Sule S. 0. 37) it would seem desirable that a special application for the appointment of a guardian ad litem should be made in 'Chambers. But it is possible that the appointment might be made Tinder this Order. By The Admiiiistration of Justice Act, 1873, the Court of Chancery acquired jurisdiction in all matters which would be cognizable in a Court of Law (See R. S. 0. c. 40 b. 86) and this Order was subsequently promulgated in 1875 at a time when it was competent for a suitor to have brought a suit in Chancery against an infant for any tort committed by the infant ; and in such a suit it aeems that the guardian cul litem might have been appointed under this Order. When a guardian ad litem, is appointed under this Order, it is not necessary to serve the infant with any proceedings. The guardian to be appointed by any order issued on prcecipe, is in all cases to be the Official Guardian ad litem unless the Judges other- -wise direct. 611. With the order appointing such guardian shall ^""f^^^J^*" be served on the guardian one copy of the proceedings k^'™ »'' had up to the time of such appointment, or of such part thereof as may be necessarj^ to enable the guar- dian to protect the interests of the infant to whom he Jias been appointed guardian. 612- Any person aggrieved by such order may '^'^^^'^^"^1°^^^ before a Judge in Chambers, on such material as he'a^m^yte may think proper, to discharge the same, whereupon 358 Chancery Orders 613—618. such order as may be considered most conducive to the interests of the infant, shall be made. Ord. 613. Order '613, abolished tlie order for a married woman to answer separately, and is now effete. Ord, 614. Order 614, provided for turning any motion into a motion for decree. Its provisions are reproduced in Rule S. C. 32.3. paylbiftoMa.- 615. In lieu of the fees allowed to the Master in SrsTshSsf Ordinary, the Local Masters, the Deputy KegLstrars, andntra.'^"'' ^^ the Sheriffs and the Special Examiners, by the for- mer tariff — the fees set forth in the tariff appended to this Order may, from this date, be charged in respect of the services there enumerated, and no other fees, costs, or charges, than are therein set forth shall be allowed in respect of the services therein men- tioned. This Order shall not interfere with the mat- ters referred to in Order No. .553, in respect of which the fees heretofore charged shall continue to allowed. This Order and the tariff thereby prescribed, are now in force only so far as those services are concerned for which no fee is prescribed by the Common Law tariff : see Jiule S. 0. 432. Certain Orders abrogated. Ord. 617. 616. Orders 298, 29,9, 300, 301, 302, and 303, and all Orders and portions of Orders inconsistent with these Orders now promulgated, are hereby abrogated. Order 617, provided for signing of cheques during the temporary absence of the Accountant, and is now effete. ORDER OF 21ST MARCH, 1875. Election Court. 618. The " Clerk of the Court." under the Domin- ion Controverted Election Act, 1874, for the purpose of receiving deposits under section eight of the said Act on Petitions filed in the Court of Chancery, shall be the Accountant of the said Court, and deposits to- Chancery Orders 619—629. 359 be made under the said section, and any otlier moneys Accountant to required tor any purpose under the said Act to be court for re- . , . ^^ . ceiTingmoneys, paid into Court, shall be paid to the said Accountant, *=• and shall be deposited in the Bank of Commerce to an account to be styled The Dominion Controverted Elections Account of the Court of Chancery, in the same manner as moneys are under the present prac- tice of this Court paid into the same ; and cheques for the payment out of any moneys so deposited shall be signed and countersigned as in the case of other moneys paid into the said Court. For all purposes other than for the purpose above described the " Clerk purp^ose" Eegis- of the Court " shall be the Registrar of the Court of of the Court. Chancery. Order 619. Provided for signing of cheques during the temporary Orfi- 6X9. absence of the Accountant, and is now effete. Orders 620-622 related to service of bills, and time for answering, Ords. 620-622. &c., and are now effete. See Bules S. C. 31, 4-^, 61. Order 623 abrogated Ords. 88, 90, and 95, and all Orders and Ora. 663. portions of orders inconsistent with Ord. 620, 621, and 622. Order 624 provided for the signing of cheques during the tempo- Ord. 624. rary absence of the Accountant of the Court of Chancery, and is now effete. ■ORDERS OF 26th JUNE, 1876. Order 625 appointed the duties of the Accountant to be dis- '^^'^- ^^^■ charged by the Referee in Chambers, and is now effete. Order 626 amended all orders containing the word " Accountant " ^'^^ *^*- by substituting therefor the words "Referee in Chambers" and is now obsolete. Order 627 related to the signing and countersigning of cheques, Ord. 627. and is now effete. See Sides S. O. 477-478. Order 628 abrogated Ord. .571. Ord. 628. Order 629 provided that certain clerks should be designated Ord. 629. Assistant Registrars. See now B. S. 0. c. 40, s. 8 ; Order in Council 30 June, 1881 ; Holmested's Manl. Pr. 272. ^c, 360 Chancery Orders 630—633. AStInt™egis- 630- The Registrar and Assistant Registrars shall Indsf^^ordeiB, ^^g^ ^^^ Orders and decrees issued by them respec- tively, and in respect to such orders and decrees shall discharge all the duties and possess all the powers which are, under General Orders 8 to 13 both inclu- sive, and Order 596, discharged or possessed by the Registrar. Ord. 631. Order 631 provided that bonds given by committees of lunatics, should be taken in the name of the Referee in Chambers ; they are now to be taken in the name of the Accountant of the Supreme Court : see RuU S. C. 519. matfera to'te"'^^ 632. Every bond or recognizance given under sec- of^RelordB ald^ ^ion 34, sub-section 3, or under section 37, sub-section Writs. I Qf chapter 12 of the Consolidated Statutes of Upper Canada, and every inventory filed in pursuance of sec- tion 37, sub-section 2 of the same statute shall be filed in the ofiice of the Clerk of Records and Writs. Bond to be Riven The Bond under C. S. IT. G. c. 12, a. 34, as. 3 referred to in thi» traversing in- Order is the bond which may be ordered to be given by a person, not ?unaoT"' being the lunatic, who desires to traverse an inquisition of lunacy : see now if. S. 0. u. 40, a. 59, sa. 4. That section requires the security to be given in favor of the Registrar for the time being, but now every bond required by the practice of the Court for the pur- pose of security is, unless otherwise ordered, to be taken in the name of the Accountant of the Supreme Court, his executors, administra- tors, or assigns : Sule 8. C. 619. iteeM^unaUoT"'' ^^^ ^™d °^ recognizance, and inventory, referred to in O. S. U. C. how to be given, c. 12, s. 37, as. 12, are those required to be filed by a Committee of a lunatic : see now if. S. 0. c. 40, a. 66. The security by bond, must now be given in the name of the Accountant : Rule S. 0. 519. When the proceeding is in the Chancery Division this Order will still apply, and the bond and inventory must be filed with the Clerk of Records and Writs. In the other Divisions they should be filed with the Registrar of the Division in which the proceeding may be pending. Registrar to b,i g33 The duties of the Accountant being by the sole Referee of b J Md^aisoto™^' foregoing Order No. 625 to be hereafter discharged Chancery Orders 634—638. 361 by the Eeferee in Chambers, and it being impracti- ^//^ ^'^^t""- cable that he should also discharge the duties of Referee and Inspector under the Act entitled " An Act for Quieting Titles to Real Estate in Upper Can- ada," the Registrar is, until further order, to be the sole Inspector of Titles in respect of future petitions filed under the said Act, and sole Referee of any peti- tions, the proceedings under which are to be con- ducted in Toronto. This Order is still in force, and under its provisions the Registrar o£ the Chancery Division continues to be Inspector of Titles, and Eeferee of Titles at Toronto. As Inspector of Titles he'supervises the work of all Local Eeferees of Titles, and as Referee of Titles at Toronto he investigates titles referred to him for investigation. See Ord. 492 et seq. 634. All petitions heretofore entered or filed with Petitions entered the Referee in Chambers either as Inspector or Ref- te prosecuted before Registrar. eree, and under which no proceedings have yet been taken by the present Referee, shall be prosecuted before the Registrar. Order 635 authorized the payment of $26,000 to the Provincial „ , Treasurer out of the funds in the Court of Chancery standing to the credit of the General Interest Account, pursuant to 39 Vict. c. 8, ,8. 2 (0.) Orders 636, 637 provided for the discharge of the duties of the ords. 636, 637. Referee in Chambers during his temporary absence, and are now effete. ORDERS OF 10th JANUARY, 1879. 638- Any adult person entitled to apply, under Aduit peiaon Orders 467 or 471, for an administration order may Looai Master for administration apply to the Master in the County Town of the County of deceased per- rr J •/ *' son 8 estate. (other than the County of York) where the deceased person whose estate it is desired to administer resided at the time of his death ; and such Master may, on 14 days' »<:*''=« "m^te. notice being given to the person or persons entitled 46 362 Chanceky Order 638. undei" the present practice to notice of such an applica- tion, make an order for the administration of, and pro- ceed to administer such estate in the least expensive and most expeditious manner. Ords. 638-650 By Eah S. C. 3, OnU. 638 to 650 are made applicable to all the continuiicl in • force by Rule S. Divisions of the High CouH. This Order extended to local Masters, ^'" ^' in 'certain cases, the jurisdiction formerly exercised by the Judges, and the Referee in Chambers under Ord. 467. Master has no The jurisdiction of the Master under Ord. 638 is confined to ap- jurisdiotioD to plications made by adult persons : where an administration of an entertain appli- ^ j r cations by in- estate is sought on behalf of an infant, or where the person whose "" '■ estate is to be administered died in the County of York, the applica- tion must be made in Chambers at Osgoode Hall ; or in some cases it may be necessary to commence an action by writ for that purpose. When the application is made by persons claiming as creditors, or aa specific, pecuniary, or residuary, legatees, or next of kin, notice must I'eraonal repre- ^jg served on the personal representative of the deceased person tentative when . . to be served. whose estate is sought to be administered : and where an adminis- tration of the realty is required, unless the applicant himself be entitled to some interest therein, some one or more of t!ie heirs or devisees interested therein, must be served with notice of the appli- cation : Ord. 472. Application may Ord. 467 under which similar applications were authorized to be wilful neglect made, was formerly held to apply to simple cases only, and where ^h**^"!?"" executors were charged with misconduct, it was held that a bill must be filed, but a different construction has since been placed on • that Order ; the earlier cases proceeded to some extent on the ground that under'the common order for administration, an inquiry as to wilful neglect and default could not be made, unless the order were obtained by the personal representative himself : Harrison v. McGIaahan, 7 Gr. 531 ; Ledgerwood v. Ledgerwood, lb. 584; but it it is now held that the inquiry as to wilful neglect or default, may be made in all cases, and therefore it is no longer a sufficient reason for not proceeding by summary application instead of by action, that an Writ of summons inquiry as to wilful neglect and default is required: Be Allen where necessary. Pocochv. Allen, 9 P. R. 277; as to cases in which it ia proper to- commence an action for administration by writ : see note to Ord. 467 ante. Costs, where ivrit When a plaintiff unnecessarily issues a writ for administration, sa^iy, """'^'"° instead of applying for a judgment on notice, he is not entitled to the extra costs thereby occasioned : Sovereign v. Sovereign, 15 Gr" 559 ; and where it is not clear whether the proceeding by writ is un- Chancery Order 638. 363' necessary the costs will be reserved until further directions : Eberts v. Merts, 25 Gr., 565. When the estate in question is small, a suit for administration wh^relSof"' should not be brought until all reasonable means of avoiding the suit trifling amount.. have been exhausted ; and where a next friend of an infant brought a suit for administration, without having taken steps to avoid litiga.' tion, and the suit aftei'wards appeared to have been unnecessary, he was ordered to pay the costs of the suit : Hutchinson v. Sarr/ent, 17 Gr. 8 : McAndrew v. Laflamme, 19 Gr. 193 : Moodie v. Leslie, 12 Gr. 537 ; and see Re Johnston, Johnston v . Hogg, 25 Gr. 261 : Carroll T. Carroll, 23 Gr. 438. Where a)n executor in answer to an application for administration swore that the personal estate had not exceeded $50, the Court before it would make an order for administration, required the applicant to file an affidavit stating that he had reason to believe, and did believe, that the result of the proceedings would show a substantial balance of personal estate to be divided among the legatees : Foster v. Foster, 19^Gr. 463. Administration was refused on the application of «, legatee whose claim, including interest on his legacy, only amounted to ^28, notwithstanding' that it was alleged that other legacies remained unpaid which amounted to a considerable amount : Reynolds v. Coppin, 19 Gr. 627 ; and see Re Johnston, Johnston v. Hogg, 25 Gr. 261. And where a creditor brings an administration suit, after being Creditor, legatee, informed that there are no assets applicable to the payment of his ^rinSng un-°' claim, if the information appear by the result to be substantially necessary suit correct, he may have to pay the costs of the suit : The City Bank v. ed to pay costs. Scatcherd, 18 Gr. 185; and so also a next of kin, or residuary legatee, unnecessarily bringing asuit, may be ordered to pay the costs of it : see Parsill v. Kennedy, 22 Gr. 417 ; Re Woodhall, Garbutt v. Hewson, 2 0. R. 456 ; so also a trustee : Re Cahhuiii, 46 L. T. N. S., 848. A legatee, or next of kin, cannot apply for administration until the Legatee, or next expiration of a year from the death of the person whose estate is °pp^y";i,°t1l"lapse sought to be administered : Slater v. Slater, 3 Chy. Ch. E. 1; FiVian of a year from r. Westbroohe, 19 Gr. 461. When the application is made by a creditor whose claim is dis- Creditor must puted, he must establish his debt by proper evidence, his own un- ^J*?^"^f'^i^p'^ted. corroborated affidavit is not sufficient : Vivian v. Westbroohe, 19 Gr. 461. 364 Chancery Order 638. Eefiduary legatee A suit unnecessarily brought by a residuary legatee claiming, but witii coBts of un- failing to establish himself, to be a creditor, was on further directions llnoreu«te*d~ "^^- 372 Chancery Oeder 642. been made by Masters in different Counties, an appli- cation may be made in Chambers for an order as to the conduct of the future proceedings. Where lauds are discovered in another county after a judgment has been pronounced by a Local Master, the Judge in Chambers may award judgment as to the lands so discovered -. Clark v. Clark, 8 P. E. 156 Several suits, con- The object of this Order is to prevent more than one suit being soluJaiion of. brought in respect of the same estate. Where more than one suit is brought, under this Order, application may be made to consoli- date them. The application must be made before a Judge in Toronto. But where two or more applications are made by different persons to the same Local Master, the latter has jurisdiction to pronounce judg- ment in one of them, and stay the others : Lambier v. Lambier, 9 P. K. 422 ; 19 C. L. J. 158, see Ord. 470 note. Where a suit is stayed, Ctistg_ the costs are prima facie payable out of the estate pari passu with the costs of the suit which is carried on : Se Clark, Cumberland v. Clark, 4 L. R. Chy. 412. ^ppeait" aJudse g42. There shall be an appeal to the presiding Judge ordOT report '^°' ^"^ Chambers — on any day that he may sit in Cham- ded3ion°of'Mas- ^^rs — against any decree, order, report, ruling, or other '*"■• determination of any Master ; the notice of such appeal shall be a seven days' notice, and shall set out the grounds of objection, and the appeal shall be set Time for. down for argument not later than the Saturday pre- ceding the day on which it is to be argued, and shall be brought on for argument within a month — not including vacation — of the making of such decree, order, report, ruling, or determination, or within such further time as a Judge may think proper, and the presiding Judge may then hear, or adjourn into Court, or otherwise dispose of such matters on such terms as he thinks proper. Appeals from This Order now applies to all the Divisions of the High Court, Rvle Master's reports g q 3 j^ worked an important change in the practice. All appeals to be heard m ^ , , , . „ . Chamberf. from M aster s reports are now to be brought on m the lirst instance before a Judge in Chambers, who has power to adjourn any case he may think proper into Court. Chancery Order 642. 373 Under Ord. 252 a report became absolute -without an order con- Reports, confir- firming the same at the expiration of fourteen days from the filing "thereof, unless previously appealed from. Under Ord. 642 the time for appealing is altered, and dates from the making, and not the filing of the rej rt. No report which requires confirmation, there- fore, becomes absolute until a month has elapsed from its date, and fourteen days from its filing : j^c Eaton, Byers v. Woodburn, 8 P. R. 289 ; and if any proceedings are required to be taken thereunder before the expiration of the month, it would require a special order confirming it. An order for confirmation before the lapse of the month, would as a general rule, only be made on consent of, or notice to, all parties interested therein and entitled to appeal therefrom. Power is reserved to a Judge to extend the time for appealing Extending of under this Order, so as to meet the case of parties who are not i™° "' a,ppea - notified of the order, report, &c., until after the time limited for appealing therefrom has expired, or so nearly expired as to prevent the party from prosecuting the appeal within the limited time. But When refused the time for appealing will not. be extended merely on account of ignorance of the practice : Blackstocic v. McFarlane, 15 0. L. J. 137. This Order applies to all orders made by Masters, except perhaps Ordersof Mas- whenthey are exercising the jurisdiction of the Master in Chambers peaw'fr'im'^'''^ under Rule S. G. 422, and as to orders made in the exercise of that jurisdiction it is possible the provisions of Rule 8. C. 427 as to appeal- ing, would be held to apply to the exclusion of this Order. As to appeals from Masters, see further Ord. 252, 253, and notes. It will be observed that Ord. 638 and 640 empower the Local jvppeais from Masters to award judgment for administration, or partition, or sale, ^"d^^^MasSr but the power to award judgment in mortgage suits, is given to the or Local Kegis- Looal Registrars, Deputy Registrars, and Deputy Clerks of the '*''°' Crown. This distinction must be carefully borne in mind, for although some of the Local Masters are also Deputy Registrars, yet some of them are not ; it is also to be noted that it is only judgments or orders granted by Masters that are appealable under Ord. 642. A motion to set aside a judgment obtained on praidpe and for yfg^^„^g to set leave to defend, may be made in Chambers : Kline v. Kline, 3 Ohy. Ch. aside judgmenta, ... . . -. , ■ , ■ . - how made. R. 79 ; or such a judgment may be varied on petition, an appeal m such cases being unnecessary : Nelles v. Vandyke, 17 Gr. 14 ; see also Simmers v. Ei-h, 21 Gr. 289. But where a person, not originally made a party, is served with an office-copy of the judgment, and desires to vacate it, the motion must be set down to be heard, and the motion must be brought on for hearing within fourteen days after service of the judgment on the applicant : Wright v. Wright, before Blake, V. C, 29th March, 1881 ; and see Miller v. Brown, before Proudfoot, V. C, 23 Nov., 1880 ; and see Ruk H. 374 Chancery Order 643. C. J. IV. In the Chancery Division such motions are heard on a AVednesday, and in the other Divisions, either on a Tuesday, or Friday. be'aiwed'in" 643. In all suits hereafter instituted for adminis- costs in admjnis- tiation, Or partition, or administration and partition,. tition suits. unless otherwise ordered by the Court or a Judge, instead of the costs being allowed according to the tai'ifF now in force, each person properly represented by a solicitor, and entitled to costs out of the estate — other than creditors not parties to the suit — shall be entitled to his actual disbursements in the suit, not including Counsel fees, and thei-e shall be allowed for the other costs of the suit payable out of the estate, a commission on the amount realized, or on the value of the ]3roperty partitioned, in the suit, which commis- sion shall be apportioned amongst the persons entitled to costs, as the Judge or Master thinks proper. Such commission shall be as follows : — On sums not exceeding $500, foi- every additional |100 up to $1,500, for every additional $100 up to $4,000, for every additional $1,000 up to $10,000, for every additional $1,000, and such remuneration shall be in lieu of all fees, whether between " party and party," " as between so- licitor and client,'' or " bet iveen solicitor and client." Commission in ^jjg commission payable under this order is divisible only between leu of costs, who -^ "^ *' entitled to share those who are strictly parties to the suit, properly represented by a solicitor, and entitled to costs out of the estate. Persons not originally made parties to the suit, but served with a copy of the judg- ment under Ord. 60, are not thereby made parties to the suit, but are merely enabled to attend the proceedings, and are bound thereby as though they were actually parties : EiiijUsh v. English, 12 Gr. 441. In a suit by a residuary legatee, the plaintiff suflSciently represents the other residuary legatees, and they are not entitled as of course to costs out of the estate occasioned by their appearing by another olicitor in the Master's office : Gorhmn v. Oorham, 17 Gr. 386- 20 per cent 5 " it 3 a " 2i ii :c 1 i' u Chancfjry Order 643. 375 Creditors who are neither plaintiffs, nor defendants, are also excluded from participation in the commission, their costs are disposed of as formerly. The commission is to cover both the solicitors' fees, and the fees to counsel. It is of course not intended to cover costs ordered to be paid by one party to another. It is intended to cover only costs payable out of the estate. Costs are to be apportioned ^"^o °f appor-; under this OrcUr in proportion to the work done by, and responsibility imposed on, the solicitors engaged : Dorlge v. Clapp, 8 P. R. 388 ■ Gamphell v. Oamphell, 8 P. R. 159 ; 16 C. L. J. 16. The work done in the Master's ofiBce is not alone to be considered in making the apportionment of the commission : Cameron v. Leroux, 9 P. R. 304. The Master should also consider the circumstances under which the suit is brought, when the judgment has been pronounced by himself, and should not award commission to parties who ought to be deprived of, or ordered to pay, costs. In ascertaining the commission, if the Oa what sum to estate has been sold subject to a mortgage, the amount of the mort- ^ ^ ' gage is not to be included as part of the " amount realized " : Be McGoll, McOoll V. McColl, 8 P. R. 480': but in Re Brown, Brown v. Brown, 19 C. L. J. 367, it was held that the commission is to be com- puted ou the total amount accfinnted for, and not merely on the balance found in the accounting parties' hands. Ordinarily no costs will be allowed in addition to the commission and disbursements : Ee Fleiiry, Fleury v. Fleury, 9 P. R. 87. Where the Master finds, in any administration action commenced before himself, that any of the parties to the suit should pay the whole, or any part, of the costs of the suit, instead of their being borne by the estate, it would seem that he should so direct : Orel. 639. But in such a case it would be convenient also to apportion the com- mission, and ascertain the disbursements payable out of the estate, in case the costs ordered to be paid by any of the parties personally, could not be recovered from them. Where the principal part of the costs of a suit are ordered to be Where taxed' paid personally by one or more of the parties, and the costs of only Heu^ofcommts-'" a small proportion of the work done, are chargeable against the ^'°''- estate, it does not appear that in such a case the fuU amount of the commission here provided would be payable, and the power reserved to the Judge to make other order would probably be exerted. Cases might arise where from special circumstances, the commission here provided would be clearly inadequate, and in such cases too it would be possible that the power to make other order as to the costs would be exercised. An agent employed by a principal solicitor who is paid by com- Agent's bill is mission, is liable to have his bill taxed : Be Idington, 8 P. R. 566. pri,^^pa{ p°a"dby ^76 Chancery Ordeiis 644—646. umwoSariiy 644. Wheu two or more suits aie instituted for teXaUowed.^'^ administration, or partition, or sale, the Judge may, in his discretion, disallow all, or any, of the costs of any suit or suits, which in his opinion has or have been unnecessarily prosecuted. S-yN'Jt'toTe ^y '^^'^- ^^^ ^^^ Master is directed not to allow a. party on taxa- allowed. tiou any costs whicli do not appear to have been necessary, or proper, for the attainment of justice, or for the defending his rights, or which appear to have been incurred through over-caution, negligence or mistake, or merely'at the desire of the party ; and under Ord. 315 xmnecessary costs occasioned by defendants severing in their aefence are to be disallowed. Under the present Order the whole costs of a suit may be disallowed if it have been commenced, or prosecuted, un- necessarily, and not only the costs of the plaintiff but those of defend- ants as well, the latter having power under Ord. 641 to prevent the prosecution of more than one suit. ply to ^i^/"" 6^^- Order 134 shall apply to cases in which an terlBtVas'weii ^^"^1* ^^ interested in the estate as well as an infant, and also to suits for redemption. as infants. Ord. 646 enaMes Oi'd. 434 was held to apply only to cases where all the defendants SentTJmolt.'^^' '^'^"'^ i^f^n's. Where there were adult defendants, as well as infants, gage casis to be the Oi-der was held not to apply, and such suits had conseiiueutly to bersitho' some o£ be "et down for hearing in Coui't ; Fidlerlon v. Keely, 9 . L. J. , N. S. adS°'°*^*'' ^'^' '^^^ present Order was passed so as to enable such suits to be dis- posed of before the Referee in Chambers. The Master in Chambers, and Local Masters in certain cases, now e.'cercise jurisdiction under this Order. Ord. 436 to apply 646- Order 435 shall apply to redemption suits: to redemption i i ./ x suits. and under Orders 434 and 43-5 there may be granted, where it is prayed for, and notice is given in pursu- ance of Order 647, a decree embracing the additional relief which this Courtis entitled, under " The Admin- Relief on eove- •nant, and in istratiou of Justice Act," to give, in mortgage cases, on ejectment, to be > t* J & to » granted in morHjjQ hearing of the cause pro confesso, and such a gage actions on o L J ' prcedpe. decree may be granted, notwithstanding that the defendant has been served by publication, or other- wise, or is a corporation ; provided always that where the bill has not been personally served, the claim of the plaintiff shall be duly verified by affidavit. Chancery 'Order 647. 377- By this Order the power of the Registrar to issue decrees on prce- Judgment on cipe, was extended to redemption suits, Ord. 436 having previously granted m re- restrioted that power to suits for foreclosure, or sale. demption action. Local Registrars, Deputy Registrars, and Deputy Clerks of the Crown, have now like powers to enter judgment on prceclpe, in actions for redemption : set Rules S. C. 78, 417, 520. To obtain the additional relief referred to in this Order, it must he claims for pay- claimed by the indorsement on the writ of summons. See Itules "^ofposlesslon^ S. G. Form No. 9. Unless the defendant "have by covenant, or other- muet te indorsed Ti. -.1. n-i.,1.. 1 111. -i.i-i on writ, or can- Wise, made himself personally liable for the debt, he is not liable per- not be granted. sonally, and a claim for a judgment for payment personally, maybe resisted : Christie v. Dowher, 10 Gr. 199 ; S. C. 10, U. C. L. J. 161 : Glarhson v. Scott, 25 Gr. 374. Thus, when the defendant is merely „ , ^ '^ PerBOnal order the owner of the equity of redemption as assignee of the original mort- for payment gagor, and has entered into no covenant, or agreement, with the mort- Maimed '"*'' gagee, to pay the mortgage debt, no judgment for payment can properly be claimed against him, notwithstanding he may have covenanted with his assignor to pay it ; Glarhson v. Scott, supra; but when the mortgagor is a party, and is legally bound to pay the debt, he may be ordered to pay it, notwithstanding that he may have conveyed away his equityjof redemption to a co-defendant. Where judgment for delivery of possession is required, the claim therefor must he specially indorsed on the writ, and the description of the lands must be set .out in the indorsement. 647- In suits for foreclosure or sale, whei-e the plain- Form of indorse- tiff prays for an order for the immediate delivery of wiiere deiive'ry f. T c • T i , °^ possession, or possession, or tor an order tor immediate payment personal order ,-, T ,-.-... t .for payment, is against a defendant, he must, in addition to the notice sought. required by Schedule S, indorse upon the office copy of the bill served upon the defendant, the further notice : ( Where order for immediate possession prayed.) " And the plaintiff will be entitled to an order for the immediate delivery of possession of the mort- gaged premises to him." ( Where order for iinmediate paym.ent prayed.) " And the plaintiff will be entitled forthwith to exe- cution against the goods and lands of you (naming 48 ■378 Chancery Order 648— 649. the defendant against whom the plaintiff is entitled to this relief) to recover payment of the amount due by you." This Order though retained in force is practically eflFete ; see now for forms of indorsement on the writ, Sules S. C. Form No. 9. Sa^s'to have 648. Every Deputy-Registrar shall have the same K^istraTto^^ power, as to the issue of decrees on prcecipe, as by ■^decrees on Qrder 646, and the Consolidated General Orders, is given to the Registrar of the Court. Power of Deputy Registrars to issue prtscipe decrees formerly restricted to actions between mortgagee and mortgagor — re- striction now removed. Under Ord. 38 the power of Deputy-Registrars to issue decrees in mortgage suits on prmcipe, was limited to suits for foreclosure, sale, or redemption, between the original mortgagee and mortgagor. Ord. 648 removes this restriction, and extends the power of Deputy-Eegis- trars to all cases brought for the foreclosure, sale, or redemption, of mortgaged property. This power is now extended to the Local Re- gistrars, and Deputy Clerks of the Crown, in actions commericed in tlieir respective offices : see Rule S. 0. 3, 78, 417, 520. Under Oi'd. 435 the Registrar had power to issue on prcecipe such a decree in mortgage cases as the Court would, previously to that Order, have made upon a hearing pi-o confesso : KiripatricJc v. Howell, 22 Gr. 94, and the same power to award the like judgments is con- tinued under The Judicature Act. See further, Ord. 435, note. Judgment on The judgment is drawn up upon prac'ipe, upon proof of service of ■drawn^p."" *^® '"'''* °^ summons duly indorsed, and an affidavit of non-appear- ance, or of non-delivery of statement of defence. Where the defendant has not been personally served, proof of the plaintiff's claim must be adduced ; see Ord. 646. In other cases no affidavit is required from the plaintiff proving his claim, but the account is to be taken on the basis of the special indorsement on the writ served. Where, however, the plaintiff, as is sometimes the case, admits that he has indorsed his writ for more than is actually due, it should be stated in the judgment that he abandons the excess claimed by the indorsement, and only the balance should be ordered to be paid. Decree to be 649- Every decree or order hereafter made by the absolute, in all "^ •' otheTOTi'^r- Court, whether the service of the bill, or other pro- dered. ceedings on the defendant, has been personal, by pub- Chancery Orders 650^651. 379' lication, or otherwise, shall be absolute in the first instance, unless the Couit shall otherwise order. This Order is now in force in all the Divisions : Snle S. C. 3. This Order created an important change in the practice : formerly All judgnienta a decree founded on an order pro confesso, in cases where the de- iBstance, unless feudant had not been served personally with the bill of complaint, otherwise order- and had not appeared at the hearing, was merely a decree nisi and required to he made absolute under Ord. 114 et seq. Under Ord. 649 all decrees are to be absohite in the first instance, unless the Court otherwise order, and the same rule now applies. to judgments. Where the judgment is granted on a jrrcecipe, against a defendant Proof of claim who has not been personally served with the writ, the plaintiff's claim ^^t 'not peMoa is required to be verified by aflSdavit : Ord. 646 ; and it would seem *lly served. probable that the same rule would be followed in causes heard in Court. 650. The Local Masters and Deputy-Registrars shall ^,"/,r^fae° by enter in a book or hooks, kept for that purpose, all Deputy Kegls^"' decrees, or orders, made by them, and they shall, on JeS *° ^ ™ the conclusion of every suit, or matter, annex together ' all the pleadings and papers, filed with them in such At conclusion of suit, or matter, and transmit the same to the Clerk forwarded to ' ' _^ _ Clerk of R. & W. of Records and Writs, who shall duly enter and file the same. This Order is now extended to all the Divisions of the High Court, Mule S. C. 3. With regard to the entry of judgments : see Hulen S. G. 325, 517. The requirement to transmit documents to the Clerk of Records and Writs, would seem only to be applicable to an action in the Chancery Division. In actions in the other Divisions the documents should be transmitted to the Registrar of the Division. The Order has not, so far, been very generally observed by the Local Officers. 651. All Orders and portions of Orders, mconsist- Orders inconsist- " ^ ' ent with Ord. ent with these Orders, are hei-eby abrogated. te^l^^"' *'"^°^*' This Order though not expressly retained in force hy £ideS. C. 3, would, however, by implication, seem to be still in operation and to extend now to all Divisions of the High Court. SCHEDULES TO CONSOLIDATED CHANCERY ORDERS OF 23 JUNE, 1868. SCHEDULE A. Indorsement on Office- Copy of a Decree, served under Order 60. " Take notice, that from the time of the service hereof, you (or, as the case may he, the infant or person of unsound mind) will be bound by the ])rooBedings in this cause in the same manner as if you (or, the said in/ant, or person of un- sound mind) had been originally made a party to the suit ; and that you (or, the said infant, or person of unsound mind) may, upon service of notice upon the plaintiff, attend the proceedings under the within decree ; and that you (or, the said infant, or person of unsound mind) may, within four- teen days after the service hereof, apply to the Court to add to, vary, or set aside the said decree : A. B. of the City of Toronto, in the County of York, Plaintiff's Solicitor." Note. — The word 'decree' in this form should now be changed to ' judgment. ' SCHEDULE B. Contained forms of Bills of Complaint, which are now obsolete. SCHEDULE C. Contained a form of Indorsement to be made on a, BUI of Com- -plaint, which is now obsolete. Schedule to Con. Order 187. 381 schedule d. Contained a form of Affidavit of service of Bills of Complaint^ ■which is now obsolete. SCHEDULE E. Contained a form of notice for puhlication in case of an absconding, defendant, which is now obsolete. SCHEDULE F. Contained a form of an answer, which is now obsolete. SCHEDUDE G. Contained a form of Affidavit on production ; see form now to be used, Rules S. C. Form No. 34. SCHEDULE H. Contained a form of Replication, which is now obsolete. SCHEDULE I. Contained a form of notice to admit documents ; see form now to- be used, Suks S. O. Form No. 26. SCHEDULE J. Form of Order, referred to in Order 187. The Court doth order that the following ncoounts and in- quiries be taken and made by the Master of this Court, (a)' that is to say : Ist. An account of the personal estate not specificially be- queathed (6) of A. B. deceased, the testator in the pleadings mentioned, come to the hands of, &c. (a) The Masters are now officers of the Supreme Court of Judica- ture. J. A. a. 58, sub.s. 2. (J) The words ' ' not specifically bequeathed " seem to have crept in by mistake, as the form of report prescribed by Ord. 589, para- graph 5, shows that the Master is required to set out the personal sstate " specifically bequeathed," and if there is no specific bequest,, the fact is to be reported. 382 Schedule to Coif. Order 187. 2nd. An account of the said testator's debts. 3rd. An account of the said testator's funeral expenses. 4th. An account of the said testator's legacies. 5th. An inquiry, what parts, if any, of the said testator's personal estate are outstanding or undisposed of. And it is ordered that the said testator's personal estate, not specificially bequeathed, be applied in payment of his debts and funeral expenses, in a due case of administration, and then in payment of his legacies, (a) (//" ordered.) And it is ordered that the following further accounts and inquiries be taken and made, that is to say ; 6th. An inquiry what real estate the said testator was -seised of, or entitled to, at the time of his death. 7th. Au inquiry what incumbrances affect the said testator's real estate. 8th. An account of the rents and profits of the said ■testator's real estate received by, &c. {If Sale ordered.) 9th. An account of what is due to such of the incum- brancers as shall consent to the sale hereinafter directed in re.spect of their incumbrances. 10th. An inquiry what are the priorities of such last -mentioned incumbrances. And it is ordered that the testator's real estate be sold, with the approbation of . And it is ordered that further directions and costs be reserved, until after the said Master shall have made his report. (a) This clause is now, in practice, usually omitted. For another Form of Judgment for administration : see Rules S. C. Form No. 171. Schedules to Con. Ords. 198, 206, 245. 383 SCHEDULE K. Appointment, referred to in Order 198. In Chancery. Between A. B., Plaintiff, and CD., Defendant. The day of is hereby appointed to proceed (here state the nature of the business for which the appointment is made) when all parties are to attend at Chambers in Osgoode Hall, in the City of Toronto, at the hour of . (I'o be signed by Judge, or Judge's Secretary.) Note. — If you do not attend either in person or by your solicitor, at the time and place above mentioned, such order wUl be made and proceedings taken in your absence, as may seem just and expedient. G. H., Solicitor for . SCHEDULE L. Indorsement on OfUce-Copy Decree, referred to in Orders 206, and 245. To A. B., (the person upon whom service has been directed, {set out the order.) If you wish to apply to discharge the foregoing order, or to add to, vary, or set aside, the decree, you must do so within fourteen days from the service hereof. ( When the order fixes a time for the further proceedings, add,) And if you fail to attend at the time and place appointed, either in person or by your solicitor, such order will be made and pro- ceedings taken, in your absence, as may seem just and ex- pedient ; and you will be bound by the decree, and the further proceedings in the cause, in the same manner as if 384 Schedules to Con. Orders 258, 353. you had been originally made a party to the suit, without notice. The word "decree" in this form shoukl now he changed to "judg- ment." SCHEDULE M. Jurat to Affidavit, referred to in Order 258. Sworn before me at , in the County of on the day of , A.D. . SCHEDULE N. Contained an Indorsement to he made on an Order, served under Ord. 293, which 13 now obsolete. And an Indorsement to he made on an Order of Revivor, served under Ord. .S41, which is now superseded by Sules 8. G. Form 20. SCHEDULE O. Precipe for Direction to the Bank, referred to in Order 353. In Chancery. (Short Style of Cause.) Required, a direction from the Bank to receive from , $ , payable into Court to the credit of this cause, under dated , (or, as the case may be.) A. B., Defendant's Solicitor, (Date). (Or as the case may be.) Schedules to Con. Orders 356, 379. 385 Prseoipe for Cheque, referred to in Order 356. In Chanceey. (Short Style of Cause.) Required a Cheque for $ [with $ interest thereon from ■ to (being the period, if any, for which interest is payable under the Order, hut which has not been already taken into account and computed) ], payable to ; and the following papers are produced here- with (naming the Decrees, Reports, d'c, shewing the party's- right to the Cheque, thus : Decree dated , Report dated , d;c.) A. B., Plaintiffs Solicitor, (Or as the case may be.) (Date). SCHEDULE P. Conditions of Sale, -referred to in Order 379. 1. No person shall advance less than $10 at any bidding- under $500, nor less than $20 at any bidding over $500, and no person shall retract his bidding. 2. The highest bidder shall be the purchaser ; and if any dispute arise as to the last or highest bidder, the property shall be put up at a former bidding. 3. The parties to the suit, with the exception of the ven- dor, ('and, naming any parties, trustees, agents, or others, in a fiduciary situation,) shall be at liberty to bid. 4. The purchaser shall, at the time of sale, pay dovyn a deposit, in the proportion of $10 for every $100 of the ■ pur. chase money, to the vendor, or his solicitor; and shall pay the remainder of the purchase money, on the day of next ; and upon such payment, the pur- chaser shall be entitled to the, conveyance, and to be let into possession ; the purchaser at the ' time of sale to sign an agreement for the completionjof the purchase. 49 -386 Schedule to Con. Ordee 387. 5. The purcliiiser shall have the conveyance prepared at hi.s own expense, and tender the same for execution., 6. If the purchaser fails to comply with the conditions aforesaid, or anj' of them, the deposit and all other payments made thereon, shall be forfeited, and the premises may be resold ; and the deficiency, if any, by such re-sale, together with all charges attending the same, or occasioned by the defaulter, are to be made good by the defaulter. SCHEDULE Q. Report on Sale, referred to in Order 387. In Chancery. Between A. B., Plaintiff, and C. D., Defendant. Pursuant to the decree (or order) of this Honourable Court, bearing date the day of , and made in this cause, I have, under the General Orders of this Court, in the presence of (or, after notice to), all parties concerned, settleJ an advertisement and particulars and conditions of sale, for the sale of the lands mentioned or referred to in the said decree {or order), and such advertisement having, according to my directions, been published in the (naming the news- paper or newspapers), once in each week for the weeks immediately preceding the said sale (or as the case may be), and bills of the said sale having been also, as directed by me, published in different parts of the township (town or city) of and the adjacent country and villages, (or as the case may he), the said lands were offered for sale by public auction, according to my appointment, on the day of ■ , by me, (or by Mr. of , appointed by me for that l)urpose, auctioneer), and such sale was conducted in a fair, open and proper manner, when , of , was declared the highest bidder for, and became the purchaser of the same, Schedules to Con. Ordees 430, 444. 387 at the price or sum of $- , payable as follows (set out shortly the condition of sale as to payment of the purchase money). All whioli having been proved to my satisfaction by proper and sufficient evidence, I liumbly certify to this Honourable Court. Dated . For tlie word ' ' decree" the word ' ' judgment" should now be jised. SCHEDULE R. Notice, referred to in Order 430. In Chancery. (Short Title). To , Defendant. Take notice that the plaintiff elects that the sale of the iuortgaged premises be conducted by you instead of by the plaintiff, and you are at liberty to withdraw tbe deposit made ^3J you in this cause for the purpose of such sale. SCHEDULE S. Contained a form of indorsement on Office-copy Bill 'for foreclosure, or sale, under Ord. 436, and which is now obsolete. SCHEDULE T. Notice, served under Order 444. In Chancery. Between A. B Plaintiff, and CD Defendant. Whereas an action has been instituted by the above named plaintiff for the foreclosure (or side) of (or enforcement of a 388 Schedule to Con. Order 446. lien on) certain lands, being (insert description of lands) and I have been directed by the decree made in this causer and dated the day of , to inquire whether any person, other than the plaintiff, has any cliarge, lien, or incumbrance upon the said estate. And whereas it has been made to appear before me that you have each some lien, chai-ge or incumbrance iipon the said estate, and I have there- fore appointed the day of , at o'clock in the noon, for you to appear before me, at my Chambers at T, either in person or by your solicitor, to prove your claims. Now 3'oa are hereby required to take notice : 1st. That if you wish to apply to discharge my order making you a party, or to add to, vary, or set aside the decree you must do so within fourteen days from the service hereof ; and if you fail to do so, you will be bound by the decree, and the further proceedings in this cause as if you were originally made a party to the suit. 2nd. That if you fail to attend at the time and place appointed, you will be treated as disclaiming all interest in the land in question, and it will be dealt with as if you had no claim thereon, and your claim will be in fact fore- closed. W. L., Master. To For the word "decree" the word "judgment" should now be inserted. ApiJointment, served under Order 4t6. In Chancery. Between A. B., Plaintiff, and C. D., Defendant. Having been directed by the decree in this cause, dated the day of , to inquire whether any person other than the plaintiff has any lien, charge or incumbrance upon ScHEDXTLE TO CoN. Oeder 468. 389 "the lands in the pleadings mentioned, being {insert descrip- tion of land), I do hereby appoint the day of next, at o'clock in the noon, at my Chambers at , to proceed with the said inquiries. And you are hereby required to take notice : That if you fail to attend at the time and place appointed, you will be treated as disclaiming all interest in the land in •question, and it will be dealt with as if you had no claim thereon, and your claim will be in fact foreclosed. W. L., Master. For the word "decree," the word "judgment" should now be used. SCHEDULE U. Notice of Motion for Administration Order, under Order 468. In the matter of the estate of E. F., late of the Township of "Vaughan, in the County of York, deceased. A. B. against C. D. To 0. D., Executor of E. F., deceased. Take notice that A. B., of the City of Toronto, in the -County of York, Esquire, {or other proper description of the party), who claims to be a creditor upon the estate of the above named E. F., will apply to the Court of Chancery, [a) in Chambers, at Osgoode Hall, in the City of Toronto, on the day of , at the hour of , for an order for the administration of the estate, real and personal, of the said E. F., by the Court of Chancery {a) ; and upon 'such application ■will be read the affidavits of {state the materials upon which the application is founded) this day filed. If you do not attend either in person or by your solicitor (a) Instead of the words " Court of Chancery," in this form, the words "High Court of Justice" should now be used : and see Orel. 561. The notice of motion should be entitled in the High Court of Justice, 'naming also the Division in which the affidavits are filed. 390 Schedules to Con. Orders 475, 477. at the time and place above mentioned, such ordei* will b& made in your absence as may seem just and expedient. Dated, &e. G. H., Of the City of Toronto, Solicitor for the above named A. B. SCHEDULE V. No. 1. — Advertisement for Creditors, under Order 475. Pursuant to a decree [or an order] of the Court of Chancery made in [the matter of the estate of A. B., and in] a cause S. against P. [short title], the creditors of A. B., late of in the County of -i , who died in or about the month of 18 — , are, on or before the day of , 18 — , to send, by post, prepaid to E. P., of , the solicitor of the defendant C. D., the executor \or administrator] of the deceased [or as may he directed], their Christian and sur- names, addresses and description, the full particulars of their claims, a statement of their accounts, and the nature of the securities (if any) held by them ; or in default thereof, they toII be peremptorily excluded from the benefit of the said decree [or order]. Every creditor holding any security is to produce the same before me, at my Chambers, at, &c., on the day of , 18 — , at o'clock in the noon,, being the time appointed for adjudication on the claims. Dated this day of , 18 — . G. H., Master. For the word " decree," the word " judgment" should be now uaed. No. 2. — Notice to Creditor to produce Documents* under Order 4n'J. {Short Title). Ycai are hereby required to produce, in support of the claim sent in by you, against the estate of A. B. deceased [describe any document required], before me at my Cham- Schedule to Con. Order 480. 391 bers, at, &c., on the day of ,18 — , at o'clock in the noon. Dated this day of , 18—. G. E,., of, &c.. Solicitor for the plaintiff, [or, defendant, or as may be]. To Mr. S. T. No. 3. — A-ffidavit of Executor or Adminidrator as to Claims, under Order 480. In Chancery. > {Title). We, 0. D., of, &c., the above named plaintiff [or defend- ant, or as may 6e], the executors [or administrators], of A. B. , late of , in the CouHty of , deceased, and E. I"., of, &c., solicitor, severally make oath, and say as follows , — I, the said E. F., [solicitor] for myself, say as follows : 1. I have, in the paper written now produced and shewn to me, and marked A., set forth a list of all the claims the particulars of which have been sent in to me by persons claiming to be creditors of the said A. B., deceased, pursuant to the advertisement issued in that behalf, dated day of , 18_. And I, the said C, D., for myself, say as follows : 2. I have examined the several claims mentioned in the paper writing now produced and shewn to me, and marked A., and I have compared the same with the books, accounts, and documents of the said A.B., [or as may be, and state any other inquiries or investigations made], in order to ascertain, as far as I am able, to which of such claims the estate of the said A. B., is justly liable. 3. Erom such examination [and state any other reasons], I am of opinion, and verily believe, that the estate of the said A. B. is justly liable to the amounts set forth in the sixth column of the*first part of the said paper writing marked A.; and to the best of my knowledge and belief, such several amounts are justly due from the estate of the said A. B., and 392 Schedule to Con. Ob,der 480. proper to be allowed to the respective claimants named in the said schedule. 4. I am of opinion that the estate of the said A. B. is not justly liable to the claims set forth in the second part of the said paper writing marked A., and that the same ought not to be allowed without proof by the respective claimants, [or, I am not able to state whether the estate of the said A. B., is justly liable to the claims set forth in the second part of the said paper writing marked A., or whether such claims, or any parts thereof, are proper to be allowed without further evidence]. Sworn, &o. Exhibit referred to in Affidavit No. 3. {Short Title ) List of claims the particulars of which have been sent in to E. F., the solicitor of the plaintiff, [or. defendant, or as may be], by persons claiming to be creditors of A. B., deceased, pursuant to the advertisement issued in that behalf, ■dated the day of ■, 1 8 — . This paper writing, marked A., was produced and shewn to , and is the same as is referred to in his affidavit, sworn before me this day of , 18 — , W. B., &c. First Part. — Claims proper to be allowed without further evidence. t5 Name ■jj Claimants. Addresses and Descriptions. Nature of Claim. Amount claimed. Amount proper to be allowed. $. c. Schedule to Con. Order 483. 393 Second Part. — Claims which ought to be proved by the Claimants. 1 Names of Claimants. Addresses and Description. Nature of Claim. Amount, claimed. $. c. No. 4. — Notice to Creditor that claim allmued, under Order 483. (Short Title.) The claim sent in by you against the estate of A. B., deceased, has been allowed at the sum of $ , [with in- terest thereon at $ per cent., per annum, from the ■ day of , 18 — , and $ for costs, or as the case may he]. If -part only allowed, add. — If you claim to have a larger sum allowed, you are hereby required to prove such further •claim, and you are to file [&c., as in Form No. 5]. Dated this day of , 1 8 — , G. R., of, &c., Solicitor tor the plaintifi" [or defendant, or as may 6e.] To Mr. P. P. No. 5. — Notice to Creditor to prove his claim, under Order 483. {SJwrt Title.) You are hereby required to prove the claim sent in by you against the estate of A. B., deceased. You are to file such affidavit as you may be advised in support of your claim, and give notice thei-eof to , Master in Chancery (a) [or as (aJPov " Master in Chancery," "Master of the Supreme Court of Judicature for Ontario, " must be substitued. 50 394 Schedules to Con. Orders 486, 536. tJie case may he\, on or before the day of , 18 — ; and to attend persoimlly, or by your solicitor, at his Cham- bers, on the day of •, 18 — , at o'clock in the noon, being the time appointed for adjudicating on the claim. Dated this day of , 1 8 — , G. E,., of, &c., Solicitor for the plaintiff [or defendant, or as may be\. To Mr. S. T. No. 6. — Notice that Cheques may he received, under Order 486. {Short Title). The cheques for the amounts directed to be paid to the creditors of A. B., deceased, by an order made in this [matter o?'] cause dated the day of , 18 — , may be received at the Accountant's Office, in Osgoode Hall, Toronto, on and after the 'day^of , 18 — , G. E., of, fl I&C0VEUY— Continued. commission to take abroad, 70. committal, for non-attendance for, 66. corporation, officer of, liable to, 56, 57. persona wbo have ceased to be officers of, liable to, 56, default of parties, how punished, 66. defendant, when liable to, 65. making default, liable to committal, 66. have defence struck out, 66. need not notify co-defendant of examination of plain- tiff, 65. defendant's, might formerly be read by plaintiff as part of answer, 67. dismissal of action for default, 66. documents, may be ordered to be produced on, 67, 68, evidence, may be used as, 67. explanatory, may be had, 65. time for taking, 65, 66. non-attendance for, how punished, 66. production of documents on, how punished, 66. officer of corporation, liable to, 56, 57. party in same interest with party examined, may be examined in explanation, 65. time for, 66. added by counter-claim, when liable to, 63. may be examined as witness, before liable to, 64. place of examination, 64. plaintiff, when liable to, 65. refusing to attend, liable^to committal, 66. have action dismissed, 66, 67r refusal to answer questions, on, 66. striking out defence, for default, 66. third party, when liable to, 63. time for, 57- who may be examined, 62. EXAMINATION, PSO INTERESSE SUO, abolished, 4. application for relief in lieu of, how made, 217, affidavits in answer, and reply, when to be filed, 218» cross-examination on, 218. costs, 218, Master in Chambers cannot entertain, 217. notice to be served, 217. oral evidence in support, how obtained, 218. former practice, as to, 217. parties formerly entitled to apply for, may now apply for relief, 216. relief may be granted, or inquiry directed, 218. EXAMINER— See Special Examinee. EXECUTION — See Quieting Titles — Sequestration. certiiioate of — see Quieting Titles, duration of, 243. Index. 437 'EXEOVTLO'N— Continued priority of, 256, 257. renewal, time for, 243. return to Sheriff after, 243. staying, effect of, 244, 256. ■withdrawal for renewal, 243. by staying, 244. EXECUTOR — See Administkation^ Compensation — Parties — Pbrson AL Ebpees entati ve — Trustee. costs paid by, when allowed, 113, 177. compensation for care and trouble, 113 — see Compensation. Surrogate Judge has power to allow, 113. insolvent, receiver appointed, 41. interest, chargeable against, 97. neglect to invest, liability for, 97, 98. pay over, liability for, 97. of cestui que trust to demand payment from, effect of, 97. profits made by, when liable to account for, 97. receiver, when appointed against, 41, 151, 152. proving will after judgment against co-executors, how added, 40. renunciation by, cannot be revoked, 40. cannot execute power of sale after, 40. when liable notwithstanding, 40. rests, when chargeable against, 97. sale, may not bid at, 195, 196. trustee, not appointed by High Court in place of,r41. EXECUTOR DE SON TOET—See Administration. EXHIBITS, marking of, at trial, 72. schedule of, to be delivered, when judgment reserved, 73. EXPERTS. appointment of, need not be made in presence of parties, 328. cases in which appointed, 328. costs of, allowed though improperly employed, 328. Court, or Judge, may obtain services of, 327, 328. Master may not employ, 328. report of, not conclusive, 328. witnesses, cannot be called by, 328. FEES— See Tariff. FINAL ORDER— See Mortagb Actions. for foreclosure, or sale, to be entered, 353. effect of, 264. not granted, when judgment is for sale, 229. proceedings to obtain, 262, 263. sale, where judgment is for foreclosure, 229. may be ordered on application of subsequent incum- brancer 229. mortgagor entitled to time for redemption, before, 231. 438 Index. FORECLOSURE— See Final Okdbk— Mortgage Aotiohs. Chartered Bank entitled to, 221. chattel mortgagee " 228. Crown, not granted against, 228, 264. day to show cause, to be reserved in judgment against infants, 235, 242. death of mortgagee before day of payment, 264. dismissal of action for redemption, when it operates as, 239, 275, 276. final order of, proceedings to obtain, 262, 263— see Final Obdek. eflfect of, 264. must be entered, 353. mortgagee by deposit, entitled to, 228. opening, bymortagor, 265. mortgagee, 266. pledgee of chattels, not entitled to, 228. railway company, when not granted against, 228, 229. right to, lost by parting with part of mortgaged property, 229. FOREIGN COMMISSION— See Commisstqn to take Evidence. FORMS. advertisement for creditors, 390. r.ffidavit as to creditors claims, 391. appointment under Ord. 446, — 388. to take accounts, 382. certificate, when cause under Lower Scale, 337, 405. cheque, praecipe for, 385. conditions of sale, 385. direction to Bank, to receive money, 384. indorsement on o. u. judgment for service under Ord. 60, — 383. on parties added in Master's Office. 383. u. 0. order, in lieu of subpoena to infant to show cause against decree, 394. jurat, to affidavit, 384. notice to defendant to take conduct of sale, 387. creditors, to produce documents, 390. prove claim, 393. that claim allowed, 393. cheques ready, 394. incumbrancers, 387. infant to show cause against judgment, 394, notice of motion, for administration, 389. order for administration, 381-2. preecipe for cheque, 385. report in administration suit, 405. on sale, 386. FRAUDULENT CONVEYANCE. setting aside, on summary application in Chambers, 79. Master in Chambers, County Court Judges and Local Masters, have no jurisdiction to set aside, 79. FUND— See Lien oe Solicitor. Index. 439 further directions, aflSdavits, when they may be read on, 72. costs, evidence on question of, 225. Court may refuse to act on report, 226. original judgment, 226. days appointed for hearing causes on, 352. evidence, which may be used on, 225. June, cannot be set down for, in 226. unless reservation of judgment unnecessary, 226. neglect of party having conduct of cause, to set down for, 22S. notice of hearing on, 223. parties to be served in Master's office under. Ord. 60 where entitled to, 48, 223, 224. service of, 223, 224. opposite party may set down for hearing on, 225. setting down for hearing on, 223, 225, 226, 362. time for, 352. ■GUARDIAN— See Infant. ■GUARDIAN AD LITEM, appointment of, by Local Master, 16. on application of infant, 317. of lunatic, 317. on prEeoipe, 355, 356, 357. costs of, 173, 174 ; how paid, 318. discharging order, appointing, 357. 368. infant, how appointed for, 317, 355, 356, 357. when added in Master's Office, 350. irregular appointment of, set aside, 318. lunatic, how appointed for, 314, 316. when added in Master's Office, 317. Master's Office, appointment of, to parties added in, 317, 350. Official Guardian, to be appointed, 31S, 357. order appointing, when it may issue on preeoipe, 355, 356, 357. when unnecessary, 356. proceedings to be served on, 357. sale, not to bid at, 195, 196. HABEAS CORPUS. Judge in Chambers, jurisdiction of, 80 . HEARING — See Fuhtheb Directions — Master — Trial. Master's Office, Master to notify when concluded, 129. HETRS — See Administration. administration, may apply for, without joining co-heirs, 43. advertisements fcr, 118. occupation rent, liability for, to dowress, 107. HOLIDAYS— See Time. excluded in computation of time, when, 220. days appointed for, 220. 56 440 Index. IMPERTINENCE— See Scandal. exceptions for, abolished, 4. in interrogatories delivered for examination of witness on com- mission, how objected to, 60. IMPROVEMENTS, after action, not allowed, 109, exception. 111. allotment of, on partition, 371. committee of lunatic, by, when allowed, 109. covenant in rectorial lease for payment of, 111. mistake of title, made under, 108, 109. personal representative, by, when allowed. 109. persona in possession under void deeds, when entitled to, 108. receivers, by, when allowed, 109. tenants at will, not entitled to, 108. tenants in common, when allowed for, 371. trustees, when entitled to, 109. wrong doers, not entitled to, 108. INCUMBRANCER — See Incumbkanobs— Moetoage Actions. claiming priority to plaintiff, may appeal from report, 129. redemption by, how directed in mortgage actions, 258. sale, right of, to, 228, 269. INCUMBRANCES— See Mobtgaoe—Moktoage— Actions— Mokt- 6AGBE — Purchaser. absconding debtor, priority of against, 257. consolidation of mortgages, when allowed, 249. disputes between holders of, how settled, 257. evidence negativing existence of, vendor not bound to give, 213. execution creditor, priority of, 257. merger of, a question of intention. 249. priorities of, how settled, 257. purchasers at sheriff's sale, priority of, how settled, 257. redemption of, how directed in action for sale, 258. foreclosure, 25 tacking, of, how far allowed, 249. two of same date, priority how settled, 257. voluntary mortgages, priority of, how settled, 257. INDORSEMENT— See Eoems. of name, and address, of parties acting in person, necessary on all proceedings, 20. consequence of omission, 21. of name, and address, of solicitor, on proceedings, when necessary, 17. of solicitor, necessary on all proceedings, 18. objection for want of, 18. place where writ issued, when necessary, 61. Index. 441 INFANT — See Administration — GtrAHDiAN ad litem — Mortgage Actions. consent, to sale of estate, when necessary, 324 — see infra SALE OF Estate or. day to shew cause, when to be reserved in judgments, 326. notice to be served in lieu of subpoena, 325, 326. form of, 384. examination of, on application for sale of estate, 324 — see infra. Sale of Estate of. guardian ad litem, how appointed to, 313, 314, 355, 356, 357. when sued for tort, 357. in Master's office, 350. Guardian of Person, and Estate. appointment of how made, 322, 323, 326. father, to be notified of application, 323. lease by, without sanction of Court, invalid, 323. petition for sale, may include prayer for appointment of, 322. receiver, when appointed to estate of, 150. removal of ward, from jurisdiction, is a contempt, 323. security of guardian, sufficiency of, inquiry as to, when ordered, 323. Surrogate Court, may appoint, 322. judgment signed against, in ignorance of infancy, effect of, 314. notice to be served, when day to shew cause reserved, 325, 326. order pro con. of no validity against, 313. receiver, when appointed to estate of, 150. removal of ward of Court, from jurisdiction, is a contempt, 323. Sale of Estate, of. application in Chambers for, how made, 318, 319. consent of infant, when necessary, 319, 324. conveyance, execution of, 319. debts of ancestor, when ordered for payment of, 321. inquiry as to, when ordered, 322. dower of lunatic mother, how barred on, 319. evidence in support of petition, how taken, 325. examination of infants, on application for, 324. how taken, 324. to be attached to petition, 324. grounds on which authorized, 318, 321. infants' interest, to be considered on application for, 318. maintenance, case to be made for, if required, 321. — see Maintenance. Master, power of, to take examination of infant, 325. witnesses, 325. Official Guardian, when to be notified of application for, 318. past maintenance, when not a ground for, 319. petition for, how entitled, 318. presented, 320, 321. what it is to state, 320, 321, 322. may pray for appointment of guardian, 322. evidence in support of, how taken, 325. examination of infant, to be attached, .324. principal money, not broken into, for maintenance, 322. production of infant on application for, 323, 324. when dispensed with, 324. 442 Index. INFANT — Sale of Estate of. — Continued. sale, when refused, 319. consent of infaht to, when necessary, 319, 324. contrary to disposition by will, or deed, cannot be authorized, 318. benefit of infants' relatives, for, refused, 319. proceeds of, retain quality of estate sold, 319. descending as reality, if not converted, will thereafter pass as personalty, 319. Settled Estates, of. application respecting, to be made to a Judge, 320. jurisdiction of Court as to, 319, 320. sale, cannot be ordered of part, to improve residue, 320, INJUNCTION, interlocutory, not continued by judgment on prjecipe, 236. receiver, appointment of, operates as, 150. restraining action against a receiver, 158. proceedings at law, Order relating to, 158. INROLMENT, of decrees, and orders, obsolete, 76, 77. INSPECTOR OF TITLES— See Quieting Titles. Kegistrar of Chancery Division to be, 360, 361. INTEREST — See Administration — Mortqaoe Actions— Puk- ohasee — Rests. administrator, when it begins to run against, 98. advances by executors, and trustees, on, 98. partners, on, 99, agent, using moneys of principal, liability for, 98, 99. arrears of, how far barred by Statute of Limitations, 101, 102. commencement of action against trustee, does not stop, 98. compound, when chargeable, 96-102 — see Rests. not allowed executors, or trustees, on advances, 98. dissolution of firm, stops interest on capital, 100. executors, where it begins to run against, 98. liability for, 97, 98. legatee, from what time entitled to, 99, 287. Master to compute, on debts and legacies, 285, 286, 287. mortgagee in possession, liability for, rests, 100, 101. partnership accounts, how chargeable, 99, 100. advances by partners, 99. capital, on, 99. dissolution of firm, stops, 100. moneys in hands of partner, 99. policies of insurance, when payable on, 99. principal, when charged with, 99. purchaser, liability for, 203, 204. rate of, chargeable against executor, or trustea, 97, 98. after default in payment under contract, 251, 287. rests, when chargeable', 96-102 — see Rests. Statute of Limitations, effect of, on, 101, 102. subsequent account, how allowed on, 266, 267. trustee, liability for, 97, 98. Index, 443 interpretation, of words in Chancery Orders, 4. 5. IRREGULARITY. notice of motion, to set aside proceedings for, must specify, 149. party moving against, must himself be regular, 149. move promptly, 149. before taking proceedings, 149. proceedings, not invalid for, till set aside, 150. waiver of, 149, 150. JOINT, AND SEVERAL, DEMAND, aU liable, may be joined, 53. judgment in actions to enforce, 53. plaintiff, need not join all persons liable, 53. JUDGE — See Judob in Chambers. accounts may be taken by, without a reference, 327. appeals to, in Chambers, 351. appointment by, to take accounts, form of, 382, County Court, of, trial by, 76. experts, services of, may be obtained by, 327, 328. inquiries may be made by, without reference, 327. payment out of Court, order of, necessary for, 368. retired, trial by, 76. sittings of, in Chambers, in Chancery Division, 351. Queen's Bench, and Common Pleas, Divisions, 351. Court, in Chancery Division, 352. Queen's Bench, and Common Pleas Divi- sions, 352. JUDGE IN CHAMBERS.— See Chambers. appeals, to be heard before, 351. orders of, how signed, 355. partition, may grant judgment for, 368. sittings of in Chancery Division, 351. Queen's Bench, and Common Pleas, Divisions, 351_^ JUDGES' SECRETARY, Orders relating to rescinded, 10. JUDGMENT— See Administration— Dbckeb— Partition. absolute in first instance, unless otherwise ordered, 378 379. administration, for, may be obtained in Chambers, 276. efl'ect of, as regards creditors, 279. Local Master may grant, 361, 362. subject to appeal to Judge, 372, 373. amendment of, 180, 181. appointment to settle minutes of, when to be given, 6. pass, when necessary, 6. clerical errors in, amendment of, 180, 181. consent, when amendable, 181. day to show cause, when to be reserved in, 235. declaratory, when granted, 326, 327. 4.44 Index. J UDGMENT— Co««re«ed. dispensing with service of, under Ord. 60, effect of, 49. ground for, 49. Master's power as to, 349. entering, 6, 7. time for 7, 8. indorsement, on o. c. for service on parties added in Master's office, form of, 383. under Ord. 60, form of, 380. infants, how obtained against, in mortgage actions, 234. leave to move, to vary, or set aside, when necessary, 246. how obtained, 246. Master may dispense with service of, 49, 349. effect of so doing, 49. minutes of, how settled, 5, 6. motion to vary, 6, 7. motion for, in mortgage actions, when necessary, 234, 236. motion to vary, or set aside, how made, 48, 128, 226. by party added in Master's Office, 129, 245, 246. served with, 128. must be set down, 48. office copy of, to be served on parties under Ord. 60, — 46. added in Master's Office, 128. indorsement on, 128. how made, 219. local officers may certify, 330. partition, may be granted by Local Master, 368, 369. subject to appeal to Judge in Cham- bers, 372, 373. cannot be granted by Master in Chambers, 370, 371. party added in Master's Office, may move against, 129. served with, is bound by proceedings, 47. attending reference in Master's Office, 47. costs of, 48. may rehear, 48. move to set aside, or vary, 48. when entitled to notice of proceedings in Master's Office, 47, 48. under Ord. 60, is not thereby made a party to the action, 47. passing, 6. prascipe, ordinary relief only, granted by, 236. interlocutory injunction, cannot be continued by, 236. service of, may be dispensed with by Court, or Master, 46, 349. effect of, 41. on lunatics, and infants, 47. upon whom to be made, 47. setting aside, on motion of party added in Master's Office, 245 246. motion, how made, 225. when motion may be made in Chambers, 373. staying proceedings on, 177, 178, 179. style of cause in, 354, 355. vMra viree, effect of, if not set aside, 182. varying, motion for, 245, 246, 373. after entry, 8. Index. 445 JUDGMENT CLERK— See Registrar. duty of, 5, 6. JUDGMENT CREDITOR— See Mortgage Actions. JUNE. certificate required on setting down cause for hearing in, 226. JURAT. form of, 384. JURISDICTION. of Judge in Chambers, 79-81, 182. Master in Chambers, 78-»l, 340. Master, on a reference, 94, 95, 328. judgment, or, order, pronounced without, eflfect of, 182. LEAVE TO APPEAL FROM REPORT— See Appeal. how obtained, 135. LEGACY — See Administration — Compensation — Legatee. compensation, by way of, efifect of, 114, 367 — See Compensation. interest on, 99, 287. Master to compute, 285. meaning of, in Ordern, 5. payment of in fuU, efi'eot of, as admission of assets, 42. LEGATEE — See Administration — Parties . action by, for administration, where legacy charged on realty, 42. interest on legacy, when entitled to, 99, 287. arrears of, when more than six years', recover- able, 99. receiving more than his proportion, may be ordered to refund, 99. residuary, meaning of, in Orders, 5. right of, to administration, 39, 43. LIBERTY TO APPLY, need not be expressly reserved, 75. implied in all orders, except those of final nature, 75. LIEN OF SOLICITOR— See Solicitor. ON Books and Papers. agent of solicitor, lien of, on papers of principal, 26. assignment of biU of costs to third party, discharges, 26. change of solicitor, effect of, 26— See Change oe Solicitor. client, entitled to inspect documents subject to, 26. discharged, by payment, 26. assignment of bill of costs to third party, 26. pro tanto, by taking security, 26. enforcing, 25. general, 25. 446 Index. LIEN OF SOLKHTOE— On Books, &c.— Continued. inspection by client, of documents subject to, 26. nature of the lien, 25. is subject to claims paramount to client's, 25. but not to claims created by client sub- sequent to lien, 25, 26. new firm, has no lien for costs due old firm, 26. payment, discharges, 26. production of documents, subject to, when ordered, 25, 26, 27. security, taking, discharges lien pro tanto, 26. solicitor discharged by client, may retain papers till paid, 26,, 27. unless there be ground for believing nothing to be due to him, or he refuse to deliver bill, 27. discharging hinlself, bound to deliver papers in cause, to new solicitor on undertaking, 26. Toronto agent, lien of, on papers of principal, 26. ON Estate Recovbeed, solicitor not entitled to, 29. ON Fund, actively enforcing, 28. agent of solicitor, entitled to, 28. not entitled to any greater right than hi& principal, 28. assignment by client, will not defeat, 27, 28. compromise, bonci fide, may defeat, 28. collusive, wiU not defeat, 28. discharge of solicitor by client, does not defeat, 27. secus, where solicitor dis- charges himself, 28. act of God does not defeat, 27, enforcing, 28. extent of, 27, 28. general, when, 27. lost, where solicitor discharges himself, 28. nature of, 27, 28. notice of, may be given to opposite party, 27. payment after, cannot defeat, 27. particular, when, 27. payment after notice of, no bar, 27. recovered, is general, 27. release of opposite party, where no bar to, 28. set off between parties, not prevented by, 29. unless special lien exist, 29, or costs, incurred in different actions, 29. solicitor, liability of, for paying over fund after noti'je of> 28, 29. LIMITATIONS— See Statute op Limitations. LOCAL AGENT OF SOLICITOR, whether he may be now served, 19 Index. 447 LOCAL MASTER— See Appeal— Mastee. administration, may entertain summary application, for, 361, 362. appeal from — see Appeal. Chambers, jurisdiotion in, 16, 78, 79. costs, may award lump sum for, on Chamber motion, 169. guardian ad litem, appointment by, 16. fees payable to, 15. Master in Ordinary, may exercise power of, 15. payment out of Court, cannot order, 368. partition, summary application for, to, 368, 369. who may apply, 368, 369. solicitor, whether he can practice as, 15. LOCAL REGISTRAR— See Deputy Registeae. documents in suits, to be transmitted to Toronto by, 379. judgments, to be entered by, 379. ofBoe copies, power of, to certify, 330. orders of, to be entered, 379. powers of Deputy Registrar, may be exercised by, 11. LOWER SCALE, account, action for, when within, 335. actions within, 333, 336. administration, action for, when within, 333, 334. certificate to be filed, when action brought under, 405. form of, 337, 405. costs, awarded according to, though action not within former jurisdiction of C. C, 169. Court may award higher scale costs, in actions brought under, 337. fees of Court, to be received according to, on production of certi- ficate, 337. deficiency in, when to be made good, 337. higher scale, when recoverable in action in which lower scale costs awarded, 338. foreclosure, action for, when within, 334, 335. incumbrancers'elaims, effect of, on right to bring action under, 336, partnership action, when within, 333. redemption action, when within, 333. residence of parties, efl^ect of on right to bring action under,. 334, 335. tariflf, 398. value of property, effect of, on right to bring action under, 335.. LUNACY— See Lunatic. application for declaration of, 80. notice of, on whom to be served, 80. order declaring, to be entered, 353. LUNATIC — See Committee — Lunacy. committee, may defend action for, 314. bond of, to be filed with Clerk of Records and Writs,. 360. made to Accountant of Supreme Court 360. 57 448 Indkx. LUNATIC— Continued. committee, inyentory, to be filed by, with Clerk of Records and Writs, 360. guardian ad litem, how appointed to, 314, 316. when added in Master's office, 315, 316. notice of application to appoint, howserved, 315. evidence on application, 3 J 4. who appointed, 314. inventory of committee, to be filed with Clerk of Records and Writs, 360. Master, may appoint guardian ad litem to, 316. order declaring, to be entered, 353. receiver, when appointed to estate of, 150. MAINTENANCE- -See Infant. allowance for, when made, 321. father, duty of, to provide, for infant child, 321. infant, application for, when to be made in Chambers, 322. mother, not bound to provide, for infant child, 322. past, sale of infant's estate to pay, wheu refused, 319. sale of infant's estate to provide, 322. MARRIED WOMAN — See Payment of Money out of Coukt. order to answer separately, abolished, 358. MASTER- -See Costs — Improvements — Interest — Local Master Oocdpation Rent — Report — Rests — Sale — Wilful Neglect and Default. abstract of title, sufficiency of how determined by, 210, 211. report on, not to be made, 210, 211. appeal from, not entertained, 211. — see Abstract of Tjtle. accounts, bringing in before, how enforced, 167. after committal, effect of, 167. admissions as to, how ascertained, 124 form of, 122. powers of, in taking, 116. proceeding on, 124. — see Account. adding parties, power as to, 127, 128. motion to discharge order, 129. admission of accounts, how ascertained, 124. facts, refusal of, costs occasioned by, 124. advertisement for creditors, may direct, 118, 119. heirs, and next of kin, &c., 118, 119. form of, 119. when dispensed with, 1 19. appeal from, 136, 137 grounds of, to be taken before, 131. on grounds not taken before, 131, 132. report of, 136, 224. costs of, how awarded, 176. notice of, 136. Index. 449 UAST'E'R— Continued. appeal from report of, not to be heard in June, 226. setting down, 136. time for, 136 ruling of, 137. appointment of, may include several days in one warrant, 126. to ascertain what admitted, and what contested, 124. of receiver, by, how made, 156, 157. filing, 157. auctioneer, may act as, 194, 196, 197. book of, how to be kept, 125, 126. certificate of, appeal from, 136. is same as a report, 129. not to be given as to matters covered by report, un- less required by Court, 130. of default, form and effect of, 167. charges, statement of, not to be brought into office of, 123. claims, proceedings on, 119. not referred, cannot be allowed as just allowances, 115. clerk of, may act as auctioneer, 194. close of hearing, 129. evidence not to be received after, 129. closing reference, for delay in prosecution, 348. committee, passing accounts, to appoint time for, 350. paying in balances, to appoint time for, 350. neglect of, to obey direction of, 350. compensation, to trustees, and executors, discretion as to, 113. amount of, 114, 367. legacy by wayof, effect of, 367. lump sum may be allowed, 114, or, percentage on receipts and pay- ments, 114. priority of, to claims of creditors, 368. sliding scale, 114. — see Administeation — Compensation". contempt, in office of, 167, conveyance, settlement by, 121, 122. in mortgage actions, 267. copies of documents, power to order delivery of 123. not to be made, when originals can be pro- duced, 123. costs, of appeal from, 176, 177— see Costs. delay in his office, may award, 349. matters aflfecting, should be reported by, 115. occasioned by non attendance in his office, may fix, 349. delay in his office, may award, 349. refusal to admit facts in his office, 124 creditors claims of, how proved, 119, 120. interest on, when allowed, 120, 121. — see Intekbst. parties entitled to attend proof, 120. coming in after time limited, 120. deeds, may direct delivery of, 121 — see supra conveyance. delay, in office of, 348. direction of, binding without warrant, 123, 124. 450 Index. MASTER— Co?ie?m«rf. flischarges, not -to be brought into office of, 123. dispensing with proceedings, power as to, 126. service of judgment on parties interested, 49, 127, 286, 349, 350. effect of, 49. reasons for, to be stated in report, 349. documents, production of, in office of, may be ordered by, 117, how enforced, 167. copies of, not to be made, when originals can be produced, 123. evidence, not to be received after hearing closed, 129. — see Evidence. experts, ncay not employ, 328. functus officio, not until report made, 130. guardian cul litem, power to appoint, 316, 317, 349, 350. hearing, close, of, Master to notify parties of, when, 129. improvements, allowance for — see Improvements. incumbrancer, claiming prioi-ity to plaintiff, may appeal from report of, 129. judgment, office copy of, on whom to be served, 46. parties served, may attend reference on notice to plaintiff, 47, 48, or move to vary judgment, 48. jurisdiction of, in taking accounts, 116. just allowances, what may be allowed as, 113-115. local, — see Local Master. lunatic, committee of — see supra committee, occupation rent, may charge accounting party with, 94, 106, 107. office copy of judgment, on whom to be served, 46. opening reference, 130. evidence required for, 130. parties, power to add, 127. direct examination of, 117. persons served with judgment under 07-d. 60, are not made, parties, 47. are bound by proceedings, 47. points intended to be taken on appeal, to be taken before, 131. receiver, appointment of, how made by, 155, 156. report on, not to be made, 156. warrant for, form of, 155. proceedings on return, 155. service of, 155. passing accounts, to appoint time for, 350. paying balances into Court, to appoint time for, 350. reference back to, proceedings on, 138, 139. ri.fereuce to, may be dispensed with, 327, close of, for delay in prosecution, 348. opening, 130. parties served with judgment may attend, on notice to plaintiff, 47, 48. refusal to admit facts, to tax costs of, 124. certify as to, 124. regulation of business, before, 120. rents and profits, may take account of, 94, 104, 105. report, general, separate, special, 130 — see Report. administration suit, in, form of, 351, 405. Index. 451 UASTERr— Continued. report, amendment of, 133. appeal from, 129, 136— see Report. setting down, 136. in June, 226. time for, 136, 226. confirmation of — see Report. costs, sum for, not to be inserted in, tiU after revision, 173. mistakes, how corrected in, 133, 258. mortgage actions, iu, date of, 259. confirmation of, 259. form of, 261. omission to appoint day for redemp- tion in, 258. not to be dated until costs revised, where revision neces- sary, 130. omissions in, how corrected, 258. sale, on, form of, 386. should state results, 130. should not go beyond order of reference, 130. special, when not to be made, 130, 131. as to matters affecting costs, 131. warrant to settle, 129. service of, 129. rests, may take account with, without special direction, 101. — see Rests. ruling of, appeal from, 136. sale, may conduct, 194, 196, 197 — see Sale. special circumstances, may report, 115, 116. state of facts, not to be brought into ofEce of, 123. surcharge, particulars of must be served, 125. warrant of, may include appointments for several days, 126. service of, on parties verbally notified, unnecessary, 127. to settle report, 129. on whom to be served, 129. requires four days' service, 129. wilful neglect and default, may inquire as to 94, 103 ^ see Wilful Neglect a nd Default — Occupation Rent — Rests. witness, may direct examination of, before Special Examiner, 116. commission to take evidence of, abroad, may certify for, but not ex parte, 117. cross-examination of, 118. recalling, when allowed, 118. MASTER (LOCAL)— see Appeal. administration, may grant judgment for, 361 — see Administra- tion. Chambers, jurisdiction of, in, 16, 78, 79. costs, may award lump sum for, on Chamber motion, 169. sum for, not to insert in report, until after revision, 173. fees payable to, 15. guardian ad litem, appointment by, 16. Master in Ordinary, may exercise powers of, 15. partition, may grant judgment for, 368— see Partition. payment out of Court, cannot order, 368. solicitor, whether he may practice as, 15. 452 Index. MASTER'S OFFICE— See Master. MASTER IN CHAMBERS— See Refekeb in Chambers. administration, application for, when to be heard by, 277, 341. notice of motion for, 341, form of 341. opposed motion for, to be heard before a Judge, 341. adjournment of motion, when no jurisdiction to entertain, re- fused, 340. appointment of, to take accounts, form of, 3S2. attachment for contempt, cannot order, 79. fraudulent conveyance, cannot set aside, 78. interrogatories, cannot strike out for impertinence, 60. jurisdiction of 36, 340, matters excluded from, 78, 79. in administration suits, 277. leave to appeal from report, may grant, 135. may appoint person to represent estate of deceased person, 36. orders of, to be signed by him, 342. , entry of, 342. partition, cannot grant judgment for, 79, 370, 371. Referee in Chambers, jurisdiction of, transferred to, 340 — see Referee in Chambers. transfer of causes, cannot order, 79. MERGER, is a question of intention, 249. MINUTES, appointment to settle, to be issued, 354, one day sufficient, 9. costs of delay. Registrar may award, 9. judgment, or, order of, settling, 5, 6, 354. motion to vary, 6. costs of, 7. decree, when varied on, 6, 7. order on, 7. questions arguable on, 6. non-attendance on settlement of, effect of, 9. MISJOINDER— see Parties. MONEY IN COURT — See Payment of Money into Court — Payment of Money out of Court. assignee of, may obtain stop order, 159. investment of, in stock, &c., how made, 347, 348. lien of solicitors on, not defeated by stop order, 160. payment out, after stop order, how obtained, 159. priorities of, charges on, how affected by stop order, 159, 160. stop order against, when granted, 159. MORTGAGE — See Mortgage Actions — Mortgagee — Moetgaoor. acceleration of payment in default, proviso for, effect of, 272. relief against, 272. Indkx. 4)55 MORTGAGE— ConiijHfed. attornment clause in, effect of, 256. consideration, true, may be shown, 248. consolidation, when allowed, 248, 249. floating balance, to secure, application of payments, 253, 254. infant's, effect of, 256. insurance moneys, how applicable, 254. mortgagor, when entitled to credit for, 254, implied covenant for, 254. mortgagee effecting out of his own funds, effect of, 254. interest on — see Interest. lost, indemnity required, 262. parol agreement aftecting, how far enforceable, 251. payable in foreign currency, 256. without interest, effect of, 250. payments on account, how applied, 253. appropriation of, 253. where two securities held, 2f3. by guarantor, lien for, 254. proof of claim on, 248. void, lien for purchase money may be claimed, 256. MORTGAGE ACTIONS— See Costs — Incumbkancer — Incum- BK VNOES — MOETGAOE — MORTGAGEE. abortive sale, foreclosure may be granted after, 229. acceleration of payment on default, proviso for, effect of, 272. relief against, 272. account in, may be taken withoxit reference, 234. change of, after report, effect of, 264, 270. notice of credit may be given on, 270. evidence required, when taken by Court, 233, 234; Master to take, 247. mode of taking, when equity of redemption divided, 248. proceedings on, 248. stated, may be relied on, in Master's office, 248. subsequent, 266. to be taken on entering judgment, when, 242. adding parties, in Master's office, 244, 245. interested in equity of redemption in Master's office, 237. affidavit, in proof of claim, 248. form of, 248. evidence in opposition to, 248. certificate, of Registrar, required in Master's office, 243. form of, 243. Sheriff, required in Master's office, 243. form of, 243. County Court Clerk, when necessary, 244. change of account, after report, 264, 270. notice of credit may be given, 270. claims, how proved, 248. consolidation of mortgages, when allowed, 248, 249. conveyances, to be executed on redemption, 261, 262. form of, 262. settlement of by Master, on sale, 167. 454 Index. MORTGAGE ACTlOT^fS— Continued. costs, of unnecessary reference as to incumbrances, 242. — see Costs. covenant, relief granted on, 376. enforcing, when it opens foreclosure, 268. Crown, cannot be foreclosed, 264. day to shew cause, when to be reserved in judgment, 235, 242. for redemption how appointed, 258. death of mortgagee, before day appointed for redemption, effect of, 264. decrees in, form of, 241. implied powers, contained in, 241. deeds, delivery of, on redemption, 261. — see supra conveyances, deficiency, order for payment of, when granted, 268. delivery of possession, order for, 274. deposit for sale, 269. application to increase, 269, 270. application of, 270. not required from infants, 235. Deputy Clerk of the Crown, power of to award judgment, 378. Registrar " " " 378. discharge of mortgage, mortgagor not bound to accept, 262. order adding parties, 245. dismissal of action, provision for in judgment, when necessary, 242. on payment of overdue instalment, 271, 272. dispute note, defence available under, 252. documents, delivery of, on redemption, 241. equity of redemption, adding parties interested in, in Master's office, 237. — see Equity or Redemption. evidence reqaired on motion for judgment in, 233. final order, when granted, 262. application for, how made, 262. affidavit of non-payment, form of, 263. swearing, 263. evidence on, 262, 263. notice of motion, when necessary, 263 effect of, 264, 265. for foreclosure, not granted when judgment is for sale except on rehearing, 229. or after abortive sale, 229. for sale may be granted, though judgment is for fore- closure, 229. foreclosure, may be ordered after abortive sale, 229. chartered bank, entitled to, 228. Crown, not granted against, 264. final order of — see supra final order, infants entitled to inquiry whether sale more benefi- cial than, 228. mortgagee, legal, entitled to, or to sale, 228. equitable by deposit, entitled to, 228. municipal corporation, entitled to, 228. opening, on application of mortgagor, 265. terms of, 265, 266. by mortgagee, 266. parties added in Master's Office who do not appear, 247. Indkx. 455 MORTGAGE ACTIONS— Continued. foreclosure, pledgee of chattels, not entitled to, 228. redemption by mortgagor, opens, 265. right of, lost by sale of part of mortgaged property, further directions, and costs, when reserved in, 241, 242. guardian ad litem appointment of — see Guardian ad litem. improvements, allowed to mortgagee in possession, 249, 250. incumbrancers, inquiry as to, 243. 244. adding, in Master's Office, 244, 245. certificates as to, to be produced in Master's Office, 243, disclaiming, not entitled to coats, 247. leave to prove claim, after time expired, 247. parties before judgment, notice to, in Master's Office, 246. prior, not to be added in Master's Office, 242. priorities of, how settled, 257. reference as to, when necessary, 242. duty of Master on, 242. refused, when mortgagor foreclosed 242. indorsement on writ, for personal order, for payment, 377. delivery of possession, 377. infant, judgment against, granted in Chambers, 234. 376. evidence, 233, 234. day to show cause, when reserved in, 235, 242. deposit for sale, dispensed with, 235. inquiry whether sale, or foreclosure, more beneficial, granted of course 228, 235. final order against, when refused, 235. instalments overdue, dismissal of action on payment, 271, 272. staying action, on payment, 271, 272. default in payment of, renders whole debt due, 272. exception to rule, 272. insurance money, how applicable. 111, 112, 253 — see Mortgage. interest, arrears of, how recoverable, 250. extra, agreement for, between derivative mortgagee and mortgagor, enurestobenefit of original mortgagee, 251. incumbrances paid off, rate recoverable on, 251. payable in advance, how allowed, in taking account, 251. rate recoverable, 250, 251. reserved, not necessarily payable after default. 251. rests— see Rests. runs from default, where mortgage payable without interest, 250. simple, prima facie payable, 250. Statute of Limitations, how far a bar, 252. stipulation for increased, effect of, 250. judgment in, form of, 241. absolute in all oases, 37S. unless otherwise ordered, 378, 379. Chambers, when obtainable in, 234, 276. day to show cause, when to be reserved in, 235, 242. effect of, 241. implied directions in, 241. 58 456 Indi£X. MORTGAGE ACTIONS— Coniinucd. judgment in, against infants, granted in Chambers, 234, 376. motion, to vary, or set aside, by party added, 245. pra!cipe,w}ien granted on, 235, 236. extraordinary relief, not granted in, 236. injunction not continued by, 236. staying proceedings on, on payment of arrears, 273. judgment creditor, assignment of judgment to party redeeming, 261. leave to appeal — see Appeal. leave to prove claim after foreclosure, when granted, 247. lien for purchase money, when mortgage therefor void, 256. Local Registrar, power to award judgment in, 378. lost mortgage, indemnity against, 262. mechanics' liens, adding parties having, 244. mortgagee deceased, representatives to be added 245. liability of, for moneys not received, 253. — see Mortgagee. mortgagor, notice to, in Master's ofiSoe, when requisite, 246. motion for judgment, evidence required on, 233. when necessary, 234, 236. notice T, to be served on parties added in Master's office, 244. persons served with, become parties from date of, 244. to incumbrancers made parties before jiidgment, 246. of credit, on change of account, 270. when to be served, 270. party served with may obtain reference, 271. giving, may obtain reference, 281. occupation rent, mortgagee when liable for, 255. to be charged up to day appointed for re- demption, 255. — see Mortgagee. opening foreclosure, by mortgagor, 265. mortgagee, 266. parol agreement affecting mortgage, how far enforceable, 251. parties, adding in Master's office, 244. where interested in equity of redemption. 2.37, 238. added, not appearing, to be foreclosed, 247. attaching creditors of mortgagee, not necessary, 244. death of mortgagee, who to be added, 245. filling two capacities, how added, 245. interested in equity of redemption, how added in Mas- ter's office, 237, 238. rights of, not to be determined ex parte, 244. surety, may be joined with mortgagor, 229, 230. payment, personal order for, when granted, 227, 268, 269, 377. erroneously inserted, struck out, 227. appropriation of, how made, 253. day for, how appointed, 258, 259. enlarging, 260. implied contract for, when it arises, 227. acknowledgment of receipt, of money, does not create, 227. to one of several executors, or trustees, 252, 253. '^ personal order for payment, when granted in, 227, 368, 269, 377. plaintiff, cannot refuse to accept whole debt, 273. Index. 457 MORTGAGE ACTIONS— Continued. plaintiff, must prove claim, where defendant not personally served with writ, 376, 378. pledgee of chattels, only entitled to a sale, 228. possession, delivery of, ordered in, 274, 376, 377. redemption action, 274. — see Mortgagee. praecipe judgment in, 235, 236, 378. form of, 378. how drawn up, 378. proof of claim when requisite on, 376, 378, 379. pro confesso, evidence on hearing, 233. proof of plaintiff 's claim, 248. when defendant not personally served, 376, 378. purchase money on sale, how to be applied, 267, 268. reconv eyance, on redemption in, 241 . mortgagor not bound to take certificate of dis- charge in lieu of, 262. redemption — see Redemption. by mortgagor, opens foreclosure as to incumbrancerj, 259. day for, how appointed, 258, 259. must not be a cUm non, 258. uncertain, 259. omission to appoint, how cured, 258. judgment for, may be granted on precipe, 376. judgment creditors, only entitled to one day for, 258. money, how paid out of bank, 262. when equity of redemption divided, 258. reference, where directed, 242. change of, 242. unnecessary, plaintiff cannot recover costs' of, 242. rents and profits. Statute of Limitations when no bar to account, 252, 255. chargeable against mortgagee, 255. mortgagee bound to account for more than six years', 255. report. Master's, form of, 260, 261 — see Report date of, 259. mistakes in, correction of, 259. must be confirmed, 259. rests, when chargeable, 255. sale may be ordered, 227, 228 — see Sale. conveyance. Master to settle, 241. deposit to be made on application for, 269. application to increase, 269, 270. discretion of Master as to mode of, 241, 267. dowress, proving claim to residue, after, 268. incumbrancer added in Master's office, may obtain, 269. deposit required, 269. mortgagee, legal, entitled to, 228. equitable, by deposit, when entitled to, 228, 270. mortgagor dying without heirs, how obtained, 194. plaintiff may require defendant obtaining, to take conduct of, 270. 458 Index. MORTGAGE ACTlOl^iS— Continued. sale, pledgee of chattels only entitled to, 228. right to, when lost by parting with part of mortgaged pro- perty, 229. subsequent incumbrancer,' when entitled to, 228. against prior mortgagee, 228. service of defendant in Master's office, who has not appeared, 246, 247. six months' notice of payment, plaintiff cannot claim, 272. interest, in lieu of notice, plaintifif cannot claim, 272. stated account, may be set up in Master's office, 248. Statute of Limitations, defence of, how raised, 252. — see MoKTQAGEE — Statute of Limitations. stay «£ proceedings, on payment of arrears, 271, 272, 273. effect of, 273. interest to last gale day to be paid, 273. subsequent default, order on, 273. subsequent accounts. Master to take, 266. incumbrancer, adding, 244. when entitled to sale, 288. deposit required from, for sale, 269. surety, rights of, in, 228, may be joined with mortgagor, 229, 230. MORTGAGEE —See Incumbrakcee— Incumbrances — Mobtgagb — Mortgage Actions. account — see Mortgage Actions. affidavit in proof of claim, contents of, 248. agreement with mortgagor as to rents, not binding on subsequent incumbrancers, 107. application of payments, 107. arrears of interest, recoverable by, 102. when prior mortgagee in posses- sion, 102. set off by, when in possession, 107. assignee of equity of redemption, when entitled to impeach prior mortgage, 240. attornment clause, effect of, 107, 256. bailiff, services of, when chargeable by. 111, 112. consideration for mortgage, true, may be proved, 248. consolidation of mortgages, when allowed, 249. costs, and expenses, recoverable by, 111. subseqent incumbrancer, obtaining sale, has no priority for, 240. covenant, relief on, when granted, 376. enforcing, opens foreclosure, 268. death of, before day of payment, 264. defending title, costs of. 111. derivative, agreement with, enures to benefit of original mort- gagee, 251. equitable, when entitled to receiver, 152. estoppel of, as against purchaser of equity of redemption, 266. execution creditors of, when necessary parties, 240. foreclosure, when entitled to, 228, 229. dismissal of action for redemption, equivalent to, 239. Index. 459 MORTGAGEE— GonJttueci. improvements, by, what allowed, 109, 110, 111, 249, 250. allowed more liberally when made under mistake aa to rights, 109, 110. increased rents, from improvements, when liable for, 110. insurance by, 111, 112, 253 — see Moktgage. interest — see Mortgage — Mortgage Acjtons. necessary repairs, allowance for, 1 10. sanction of mortgagor to, not requisite, 110. occupation rent, liability for, 101, 107, 255. interest on, when chargeable, 107. offer to redeem, whether necessary in redemption action, 239. opening foreclosure, by, 266. parties to actions, by, or against, — see Mobtgage Actions. payment, plaintiff cannot refuse to accept, 273. seciis defendant in redemption action, when part only, overdue, 273. six months' notice of, or six months' interest, plaintiff not entitled to, 272. payment, appropriation of, 253 — see Mortgage Actions. person-il services, cannot recover for. 111. possession, in, liability of, to account, 104, 105, 255. application of rents by, as regards subsequent incumbrancers, 105, 107. prior, when a necessary party, 239, 240, 241. absolute deed, claiming under, may be made a party, 240. assignee of equity of redemption, when entitled to attack, 340. liability of, to account, when in possession, 240. redemption of, recovery of amount paid, 112. priority of, how determined, 257. proof of claim by, how made, 248. receiver, when appointed against, 151, 152. redemption, action for, by subsequent incumbrancer, 239. parties to, 239. dismissal of, equivalent to foreclosure, 239. exception, 239. costs, a charge on estate. 111. how directed, in action for sale, or foreclosure, 258. where some of owners of equity of redemption barred, 252. resisting, liable to account with rests, 161. rents and profits, liability for, 255 where owner of equity of redemption, 240. bailiff to collect, when he may employ. 111, 112. personal services collecting, cannot charge. 111. repairs by, when recoverable, 110. rests, when liable to account with, 100, 101. sale, right to, 227, 228. not ordered against prior mortgagee, 239. out of Court, costs of, recoverable. 111. .Statute of Limitations, action for foreclosure, stays, 252. effect of, where some co-owners of equity of redemption are not barred, 252. no bar to account for rents, against mort- gagee in possession, 252. againstsubsequent mortgagee, when prior mortgagee in possession, 252. 460 Index. MORTGAGEE— aon« nued. subsequent, redeeming, may obtain relief, 240. redemption by, how directed, 258. of, " " 258. tacking other claims, wbeu allowed, 249. unfounded claim by, to equity of redemption, liability to account with rests, 101. voluntary, priority of, 257. MORTGAGOE — See Mortgage — Mortgage Actions — Mortgagee. MOTION— See Admi nistratiou— Affidavits— Evidence— Petition affidavits in chief when to be filed, 144. answer " " 144. reply " " 144. decree, for, Order relating to, 149. evidence on, how obtained, 147, 148. judgment, for, in CJourt, when heard, 352. notice of, 223. service of, 223, 224. setting down, 223. Chambers, in administration actions, 79, 281 mortgage actions, 79, 234, 376. partition " 79, 368. where writ specially indorsed, 80. minutes, to vary, 6, 7. — see Minutes. NAME, AND ADDRESS, indorsement of, of party acting in person, 20. NEW TRIAL, application for, where case tried by jury, 224. case tried by Judge, 224, 225. NEXT OF KIN — See Administration — Parties. advertisements for, 118. NOTICE — See Abstract or Title — Acooitnt — VLdministration — Further Directions — Mortgage Actions — Petition — Quieting Titles — Receiver — Sale. of cross-examination on affidavits 149. examination of witness on motion, 148. hearing on further directions, 223. hearing of appeal from Masters, 372. notice for administration, to be fourteen days. 332. form of 389. style of cause, in, 354, 355. to admit, Orders as to obsolete, 69. creditors, to prove claim, 290. form of, 393. produce documents, form of, 390. of allowance of claim, 290. form of, 393. service of, by mailing, 290, 292. that cheques ready, 291. form of, 291, 394. Index. 461 NOTICE— Coniinwcrf. to defendant, to conduct sale, plaintiff may give, form of, 387.in Master's Office- see MoRTaAGB Actions. incumbrancers in mortgage action —see Moktoaqb Actions. form of 387. NUISANCE, expert, employment of, after judgment to inquire, as to how it may be abated, 328. injunction to abate, cannot be refused until inquiry made as to best mode of abatement, 328. NUNC PRO TUNC, entry of decrees, and orders, when allowed, 8, 9. OCCUPATION RENT, heirs, liability for, 107. interest on, when chargeable against mortgagee, 107. mortgagee in possession, liability for, 107, 255. purchaser, liability for, 106. tenants in common, liability for, 107. trustee, liability for, 107. vendor, liability for, lOB. OFFICE COPY. of decrees, may be certified by Deputy Registrars, 330. judgments, may be certified by Local Officers, 330. how made, 330. indorsement on, for service under Ord. 60, — 46. form of, 380. on parties added in M. 0., 128. form of, 383. service of, dispensed with in certain cases, 218, 219. OFFICIAL GUARDIAN AD LTTEM—See Guardian ap litem. appointment of, as guardian ad litem, 318, 357. ORDERS IN CHANCERY, abrogation of Orders passed prior to 1st July, 1868, 1. construction of, 3. how far in force under Tlw. Judicature Act, 1, 2. applicable to Queen's Bench, and Common Pleas, Divisions, 2. interpretation of words in, 4, 5. ORDERS, abandonment of, where obtained on condition, 77. adding parties in Masters' office, motion to set aside, 245. affidavits sworn after date of, not to be recited in, 75. amendment of, 180, 181, 182. as to costs, 76. bespeaking, time for, 8, 9. clerical errors in, how amended, 180, 181, conditional, abandoned by non-performance of condition, 77. 462 Index. ORDERS— Oontinued. consent, may be varied, 181. drawing up of, 5, 13. lieu of solicitor not allowed to intercept, 8. enforcing, 160-168. enrolment of, unnecessary, 76, 77. entry of, 7, 77, 353. not enforceable until after, 7. 7iurw pro tunc, 8, 9. time for, 8. evidence on which founded, to be referred to in, 75. ex parte, not to be entered, when not special, 77 . setting aside, 13. form of, 76. includes decrees, or decretal orders, 5. judge's, how signed, 355. jurisdiction, when made without, effect of, 182. indorsement of. Order as to obsolete, 166. interlocutory, not to be enrolled, 77. lien of solicitor, not allowed to intercept drawing up of, 8. lost, ordered to be redrawn, 353. minutes of, settlement of, 5. appointment to be issued, 354. to be left with Registrar, 354. motion to vary, 6, 7. nisi, abolished in certain cases, 4. when necessary to be obtained, 224. nunc pro tunc, entry of, 8, 9. OF COVKSE, by whom to be issued, 353. allegations in prtecipe for, must be true, 1 3. entry of, unnecessary, 77. how drawn up, 13. issue of, by Deputy Registrar, 17. setting aside, 13. what are, 11, 12. of Judge in Chambers, how signed, 355. proceedings on, before entry, 353. reversal, on ground of new matter, 180. proof requisite for, 180. setting aside, 13, 245. settlement of, 5. style of cause in, 354. sums in, to be in $ and c, 76. varying, 8. PAPERS— See Documents. PARTIES — See Administkation — Mortgage Actions — Partition. absent, decree saving rights of, when made, 36, 37, 58. Court may refuse to proceed, if party not notified, 37. not bound, when not served, 38. service of judgment on, when dispensed with, 38. account, general, against trustees, all must be joined in action for, 55. accounting, must be original defendants, 38. Index. 463 PARTIES— Continued. acting in person, indorsement of name and address required 20 administrator ad litem, decree against, binds general adminis- trator, 36. added in Master's office, 127. action deemed to be commenced against, from date of order adding them, 128. are bound by proceedings, 128, but, if added in one capacity, are not bound in another, 128. cannot be compelled to account, 128. how far entitled to relief, 128. judgment, motion to discharge, by, 128. Master may discharge order adding them, 128. office copy of judgment to be served on, 128. indorsement on, 128. adding in Master's office, in mortgage actions, 237, 238. setting aside order, 238. where action constituted under Ord. 58, — 46. attorney-general, may be made defendant, where owner of equity of redemption is dead without heirs, 194. breach of trust, suit for, 43. cestuis que trust, represented by trustee, when, 49, 50, 52. effect of representation by trustee, 53. may be added in discretion of Court, 50. necessary parties, when, 51, 52. suit by, for execution of trust, all need not join, 43. co-defendants, contest between, how determined, 239. corporation, officers of, when to be joined, 56, 57. costs — see Costs. Court may proceed in absence of, 36, 37. add, when action constituted under Ord. 58 — 46. in same interest as plaintiff, should be co-plaintiffs, 39. refusing to join, may be refused costs, 39. joint demand, all liable must be joined, 55. joint and several demand, all liable need not be joined, 53, 54. exception, 55. judgment, service of, on parties interested, 46, 47. dispensing with, 49. misjoinder of, decree may be made notwithstanding, 31, 32, 38. action not to be defeated for, 37. demurrer, no ground of, 37, 38, 54. objection for, to be raised by motion in Chambers, 37, 38. mortgage actions, in — see Mortgage Actions. mortgagor, death of, without heirs, how represented, 194. ntxt of kin, one of, may sue for administration, without joining others, 39. non-joinder of, no ground of demurrer. 37, 38, 54. objection for at trial, 58, cause cannot be set down for, 4. should be taken promptly, 58. officers of corporation, 57. not to be joined, for discovery, 57. partition, summary application for, 268, 371 — see Paktition. 59 464 Index. :PA'RTIES— Continued. partners, in suits by, and against, 55, 56. pendente lite, persons acquiring interests, need not be aiMed, 127. legal estate, should be added, 128. personal representative — see Administration. presence of, when dispensed with, 33. protection of property, action for, 44. real representative, when a necessary party, 41. representative of deceased person's estate, may be appointed, by Court, 32, 33. consent of person appointed, 35. eflfect of appointment, 32, 36. how appointed, 32, 33, 36. powers of, 36. representation of realty cannot be granted, 33. residuary legatee, may have adminisbration, without joining any co-legatee, 39. served with judgment under Ord. 60, not bound to account, 38 cannot call other parties to account, 39. do not become parties to the action, 286. service of judgment, when dispensed with, 49. striking out, Court may make order for, mero motu, 38. sureties, cannot be sued without principal, 55. for payment of mortgage, may be joined ia action on the mortgage, 230. title paramount, persons claiming, cannot be added in Master's Office, 128. trustees, when they represent cestui que trust, 49, 50. trust estate must be vested in, 50, 51. when general account required, all must be joined, 55. PARTITION. Summary Application por. accounting parties, should be made original defendants, 368. adults may apply for, on motion, to Local Master, 368, 369. adverse claimant, not granted against, 368. Chambers, judgment for, may be granted, by Judge in, 368. commission — see infra — costs, consolidation of applications for, 372. costs. Master to report specially where they exceed 25% of value of property, 175. commission, allowed in lieu of 374. how apportioned, 374, 375. estimated, 375. taxed, when allowed, 375. deceased person's estate, of, when it may be made, 369. evidence on, 368,369. parties to, 369. dowress, how far entitled to, 370. improvements, how allotted on, 371. incumbrances paid off, when allowed, 371. infant plaintiff, must proceed by writ, 369. defendant, guardian ad litem must be appointed to 316 — see Guardian ad litem. Judge in Chambers, may grant judgment for, 368. judgment for, by Local Master, 368, 369. judgment, form of, 371. Index. 4fi5 PARTITION — Summary Application for — Continued. landa in more counties than one, application for, how made, 370. lunatic party, when guardian ad litem, must be appointed to, 314, 315. Master, Local, juriadiction of, to grant judgment for, 368, 396 confined to lands in his own county, 368, 369. appeal from, to Judge in Chambers, 372. Master in Chambers, cannot grant judgment for, 370, 371. mortgagee when entitled to, 370. parties to suits for, 369. interested, to be served with judgment, .371. served with judgment, may move to set it aside, 371. sale, when ordered, 370. several suits, consolidation of, 372. tenant in common, liability of, for rents and profits, 371. whose share is mortgaged, may have, 370. extra costs, how borne, 370. tenant for life, entitled to, 370. unpatented land, not granted of, 370. writ, action by, when necessary, 368. PARTNERS, advances by, when interest chargeable on, 99. capital of, when it bears interest, 99, 100. disolution, stops interest on, 100. withdrawal of, 100. dissolution of firm, stops interest on capital, 100. interest, how chargeable between, 99, 100. loans by, interest on, 99. losses, how borne, 100. moneys retained, or misapplied, interest on, 99. neglect and default, not liable to account for, 99, 100, 106. one of several, may be sued alone, 54. parties to suits against, 55, 56. by, 56. profits undrawn, do not bear interest, 100. receiver, of property of, when appointed, 153. surviring, may sue alone for debts due firm, 56. wilful neglect and default, not liable for, 106. PAYMENT— See Seqcertration. enforcing order, for — see Sequestration. extending time for, in mortgage actions, 260. personal order for, when granted in mortgage actions, 268, 269. Or Money into Bank. how directed in report, 139. non-payment, how certified, 140, 141. certificate of, by whom to be signed, 140, 141. form of, 141. 466 Index. PAYMENT— Co7i«»M«A Or Money into Court. bank, in which money to he deposited, 183. duty of, on receiving, 184. direction to bank, to receive, 185. form of, 384. prcecipe for, to be filed, 183. order for, to be entered, 353. produced to Accountant, 183. prcectpe for direction, to bs filed, 183. Of Money out op Court. administration letters of, when not to be acted on by Account- ant 346, 347. cheque, order to be produced on application for, 184. interest, not to be paid under letters of administration ia certain cases, 346, 347. investment, for, how made, 347, 348. married woman, special order for payment to, when neces- sary, 345. entitled to have fund settled, 345. may waive equity to settlement, 345. order for, to be made by a Judge, 368. entered, 353. produced to Accountant, 184. partners, money found due to, may be paid to any of them, 347. personal representatives, survivor of, when entitled, 345. when not, 346. probate, when not to be acted on by Accountant, 346, 347. purchase money, evidence required on application for, 184. settlement, married woman's right to, 345. affidavit of none, when required, 343, 344. dispensed with, 344. may be waived, 345. except by infant, 345. solicitor, liability of, for fraud in obtaining, 184. stocks, transfer of, to married women, 344. personal representatives, 345. women marrying, after order for payment, 343. PERSONAL REPRESENTATIVE— See Administeation— Pay- ment OF Money out or Court. administration, necessary party to suit for, 39-40. action for, by, not entertained before probate, or administration, 45. to enforce claims against realty, 45, all must be joined in suit for, 40. application for, may be made by, ex parte, 564. special grounds must be shown, 54, 364. beneficiaries, need not be joined in suit for, 44, 45. costb of, liabihty for, 364, 367. admission of assets, by payment of legacy, 42. Index. 467 PERSONAL KEPRESENTATIVE—Conut, 308. sheriff, 299. title, how prepared, 309, 310. engrossment of, in duplicate, 310. entry of, by Clerk of Records and Writs, 310. fees on, 310. signature of, 310. certified copies of registered memorials, when necessary, 297. claim of contestant, adjudication on, 308. consents of other parties inierested, 298. to filing of petition when necessary, 295, 300. consideration in deed, proof of payment, when necessary, 298. contestant, claim of, how ajudicated on, 308. report on claim of, to be filed, 299. establishing claim, not entitled to certificate of title, 309. except on filing petition, 309. costs. Referee may award, 308. Court house, notice at, how posted, 305, 306. Crown debts, proof of search for required, 299. how far binding, 299. deeds, production of, 297. affidavits of search for lost, required, 297, 298. memorials of, 297. proof of contents, when memorials not suSioient evidence, 298. return of, to petitioner, 310, 311. dower, bar of, proof required, 298. evidence, negative, petitioner may be required to give, 307. explaining suspicious circumstances, 307. of possession required, 303, 304. executions, certificate required, as to, 299. facts, statement of, when required, 299. fees, payable to solicitors and counsel, 311. Inspector of Titles, 312. Keferee of Titles, 303, 311, 312. when title defective, 304. Inspector of Titles, 307. duty of, when title made out, 309, fees payable to, 312. to confer with Judges, 308. legitimacy, proceedings for declaration of, 312, 313. letters of Inspector, and Referees, copies to be kept, 311. Local Referees, duty of, when title made out, 308. appeal from, 309. finding of, not conclusive, 309. Local Masters having jurisdiction as, 300, 301. may confer with Inspector, 302. report of — see infra report, memorials, copies of, when to be produced, 297. notice to parties interested, how prepared, 306. adverse claimants, 306, 307. form of 306. Ikdex. 473 QUIETING TITLES— Coni;m«ed notice, at Court House, and Post Office, 305, 306. affidavit of posting, 300, 306. to person having paper title, 304. objections to title, by Referee, 304. papers in support of application, to be delivered to Referee, 303. examined by Referee, 303. petition for, not to include properties held under separate titles, 294, 295. consent of other parties to filing, when necessary, 295, 300. description of land in, 295, 296. entry with Inspector, when necessary, 302. filing, 296, leave to file, when necessary, 295. certificate of, to be registered, 296, 297, 302. form of, 302. effect of, 295. form of, 296. indorsement of name of Referee, 301. reference for investigation, 300, ,301, 302. referred to Local Referee, fees payable on, 301. to be entered with Inspector, 302. who may file, 295. possession, affidavits required as to, 298, 303. consent of persons in, required, 298. evidence, to make out title by, 303, 304. against patentee of wild lot, 304. not necessary that petitioner should be in, 295. order for delivery ol, may be obtained when certificate granted, 295. ' post office, notice at, when necessary, 305, 305. postage, to be paid by applicant, 312. proofs required on investigation of title, 297, 299. Referees of titles, who are. 300, 301. appeal from, 309. how appointed, 301. indorsement of name of, on petition, 301. Referee at Toronto, duty of, when title made out, 309. to confer with Judges, 308. appeal from, 309. report of, form of, 308, .309. report of Referee, form of, 308, 309. appeal from, .309. on claim of contestant to be filed, 299. requisitions on title, by referee, 304. schedule of particulars, to be filed, 299. service of notice on parties having adverse claims, 307. proof of, required, 398. solicitor, attendance of, when dispensed with, 304. statement of facts, when required, 299. taxes, certificates required as to, 299. payment of, not evidence of possession, 303. RAILWAY COMPANy. foreclosure not granted against, 228, 229. receiver, when appointed, of, 153. 474 Index. RAILWAY COMFANY— Continued. receiver, wlien appointed, at suit of mortgagee of, 229. sale of land of, unpaid vendor entitled to, 228. REAL REPRESENTATIVES— See Parties. REALTY — See Administration-. RECORDS AND WRITS— See Clerk oe Records and Writs. RECEIVER, accounts, passing. Master to fix time for, when, 350. action against, may be restrained, 158. application for, when made, 154. by defendant, 154. appointment of, 150. by Judge how made, 156, 157. by Master, how made, 155, 156. operates as injunction, 150. when it takes effect, 157. balances, paying into Court, Master to fix time for, when, 350. bond, to be given by, to be made to Accountant, 156. discharge of, 156. of Guarantee Company, may be accepted, 156. claim for, should be indorsed on writ, 150. compensation, when deprived of, for not passing accounts, 350. or not paying balances into Court, 350. creditor, when appointed on application of, 152. deceased person's estate, of, before probate, 151. defendant, application by, for appointment of, 154. discharge of bond, of, 156. notice to be given of application for, 156. disinterested, should be, 155. but Court may appoint one of the litigants, 155. distress by, 158. duty of, 150. equitable mortgagee, when appointed at instance of, 152. examination pro interesse mo — see Examination Pro Interbssb sno. executor, in place of, when appointed, 151, 152. improvements by, allowance for, 109. infants' estate, of, when appointed, 150. interference with, effect of, 157. interim, how far superseded by judgment, 150. application by defendant, for, 154. creditor, cannot obtain, against debtor, 122. legal title, when appointed against holder of, 154. litigant, if appointed, acts without salary, 155. cannot propose himself as, without leave, 155. lunatic, estate of, when appointed to, 151. mortgagee, not granted against, 151. exception to rule, 152. equitable, when entitled to, as against mortgagor, 152. notice of person proposed as, how given, 155, 156. Index. 475 RECEIVER— Co««mt(ed. officer of the Court, ia an, 155, partnership, ivhen appointed of, 153. "going concern" penrfenie lite, 153. party to action, cannot propose himaelf, as, 155. except by leave of Court, 155. appointed as, acts without salary, 155. interfering with property, after appointment of, a contempt, 157- persons claiming adversely to, may apply for relief, 216, 217, 218. application by, how made, 217, 218. pendente lite, how far superseded by judgment, 150. " going concern," of, when appointed, 153. not granted in favour of creditor, against debtor, 152. Railway Company, of, when granted, 153. at suit of mortgagee, 229. sale, may not bid at, 195, 196. security of, how given, 156. approved, 154, 155, 156. suing, or defending, sanction of Court should be obtained, 157, 158. tenants in common, when appointed between, 154. trust estate, of, when appointed, 151. who should be appointed, 155. vendor and purchaser, when appointed between, 154. warrant of Master for appointment of, form of, 155, service of, 155. REDEMPTION— See Moktgage Actions. action for, when it lies, 239. dismissal of, when equivalent to foreclosure, 239, 275, 276. ofl'er to redeem in, whether necessary, 239. conveyance to be made on, 261. form of, 262. day for, how appointed in mortgage actions, 258. omission to appoint, how cured, 258. deeds, delivery of, on, 261. default of, how certified, 140, 141. dismissal of action for, 275, 276. foreclosure of plaintiff for, 275, 276. dismissal of action for, effect of, 239, 275, 276. foreclosure of plaintiff', in action for, 275. subsequent incumbrancers, in action for, 275, 276. incumbrancers, by, how directed, 258, 276. money paid into bank for, how paid out, 140. order for, when necessary, 140. costs of, 140. mortgagor, by, how directed, 258, 276. entitled to benefit of Orel. 461, in action for, 272, omission to appoint day for, how cured, 258. parties to action for, 239, payment into bank, for, how made, 140. place of payment, how appointed, 139, 140. report, should be filed before day fixed for, 140. - staying proceedings, on payment of instalment overdue, 272. subsequent incumbrancers, by, how directed, 258, 276. time, and place, for, how appcjnted, 139, 140. 476 Index. REFEREE IN CHAMBERS— See Master in Chambers. adjournment refused by, wliere he had no jurisdiction, 340. administration, notice of motion for, before, 341, form of, 341. opposed application for, 341. coats, might award lump sum for, 342. jurisdiction of, 339, 340. matters excluded from, 340, 341. Master in Chambers now discharges duties of, 340. office of, vrhen created, 340. Orders regulating business in Chambers, applied to, 341. orders of, how sigued, 342. entry of, 342. REFEREES OP TITLES— See QuiETiifG Titlbs. Locil Master, having jurisdiction as, 300, 301. Registrar of Chancery Division, to be at Toronto, 360, 361. REFERENCE — See Abstract of Titles — Master — Master's OFf ICE — Mortoaoe Actions —Report. application to open, 130. before report, may be made to Master, 130. after report, must be to Court, 130. evidence on, 139, back to Master, how obtained. evidence receivable on, 138, 139. matters unaffected by appeal, not opened on, 139. change of, 16. title, as to — see Abstract of Title — Quieting Titles. costs of, 215. Orders governing, 216. to what Master directed, 16. REGISTRAR, affidavits and papers filed with, in Chancery Division, to be sent to Clerk of Records and >\'rits, 13. appointment of, to settle minutes how issued, 354. pass orders " " 354. assistant, duties of, 360. Chancery Division, of, to be Referee of Titles, 360, 361. sole Inspector of Titles, 361. costs, power to award, 9. local, certificate of judgment pronounced on circuit, to be made by, 5, 6. minutes of orders, and judgments, how settled, by, 5, 6, 9, 354 — — see Minutes. appointment to settle, 354. settlement of, ex parte, 9. orders, to draw up and settle, 5, 6, 9. REHEARING — See Appeal — Divisional Court, Chancery Divi- sion. RENTS AND PROFITS — See Master — Mortoage Actions- Purchaser. tenants in common, liability for, 37 1. Index. 477 replication, Orders relating to, obsolete, 69. REPOET, Master's, absolute, when it becomes, 132. amendment of, 133. how made, 138. appeal from, 224. when to be brought, 136 — see Appeal. necessary, 185. none, after confirmation, 133, 135. except by leave, 135. before filing, 139. to be heard in Chambers, 372. may he adjourned into Court, 352. costs of — see Costs. how brought, 372. leave to, how obtained, 135. Master in Chambers may grant, 135. order on, to recite grounds of, 138. certificate, same as, 129. confirmation of, 132, 133, 134. appeal after, not allowed, 133, 135. except by leave, 135. before day appointed for payment, necessary, 139. effect of, 133. clerical errors, may be corrected after, 133. Court may refuse to act on, notwithstanding, 226. motion for, when necessary, 135. confirmed, as to matters not appealed, 134. correction of, 133. on reference back, 134. Master cannot make, on subsequent reference, 1 33. costs, matters affecting, to be stated in, 131. Court may refuse to act on, though confirmed, 226. date of, 130. documents, not to be set out in, 132. duplicate, may be filed, 139 exceeding terms of reference, 130, 131. filing, 135. cannot be acted, on before, 135. delay in, effect of, 139. necessary before appeal, 139. place of, 135, who may file, 139. final, when to be made, 131. general, what is, 130. issue of, 132. not to be dated before costs revised, 130. objections to, to be raised before Master, 131. orders on appeal from, to recite grounds of appeal, 138. payment into bank, how to be directed in, 139. priorities, to be stated in, 131. Quieting titles — see QniETiNG Titles. 478 Index. REPORT -Continued. reference back, how obtained, 134. further evidence, when receivable on, 138, 139. results, to be stated in, 130. schedule of sums payable into and out of Court, to be attached, 132. separate, what is, 130. settling, warrant for, 129. four days' service, 129. service of, on whom made, 48, 129. special, what is, 130, 131. sums, to be stated in figures in schedule, 132. charged for neglect and default, to be distingnished, 131. vacation, if made in, eflfeot of, 134, 226. variation of, how made, 138. physical alteration not to be made in, 138. warrant to settle, requires four days, 129. service of, 48, 129. REPRESENTATIVE OF ESTATE, appointment of, by Court, 32, 33, 35. consent of person appointed, 35. dispensing with, 34, 35. how appointed, 32, 33, 36. Master in Chambers, may appoint, 36. realty, person to represent, cannot be appointed by the Court, 33 REQUISITIONS ON TITLE— See Abstract of Title. RE-SALE— See Pctrchasbr. RESERVED BID— See Sale. effect of, 193, 194. Master may fix, without special order, 193. omitted to be fixed, advertisement may be ordered to be re- settled, 195. RESIDUARY LEGATEE— See Administration— Partie.s. RESTS, when chargeable against agent, 98. mortgagee in possession, 100, 101. partners, 99. personal representatives, 97. trustees, 98. REVIEW, bUls of, abolished, 4. proceedings substituted in lien of, 177, 178. RE VI VOR — See Continuing Proceedings. bills of abolished, 3, 4. death of mortgagee before day fixed for redemption, 264. motion to set aside order of, how made, 223, 225. when not to be heard in June, 226. OrJers relating to, 182. Index. 479 .SALE— See Abstract of Title— Conditions of Sale— Mortoaqe Actions — Purchaser — Sequestration- Vendor and rUROHASEE. abortive, foreclosure after, when granted, 229. property may be offered again, after, 190. advertisement of, to be framed concisely, 191. form of, 191. improvements to be mentioned in, 192. misrepresentations in, effect of, 192. objections to, how taken, 192. pnblication of, party having conduct of sale, to see to, 196. reserved bid, if any, to be stated in, 191, 193, 194, 195, resettling, 193. application for, how made, 193. settlement of , 190, 191. proceedings on, 193. special conditions, if any, to be stated in, 191, 192. affidavit as to result of, 199. agreement to purchase at, to be signed by pnrchaser, 197. appointment to settle advertisement, 190, 191. auctioneer, how appointed, 193. need not be licensed, 194, 197- Master, or his clerk, may act as, 194, 196, 197. must not accept bid from vendor, or puffer, 194. bid, leave to, not granted to paity having conduct of, 195. how obtained, 196. terms on which granted, 196. when necessary, 190, 195, 196. who may, 195. bidder, highest, is entitled to be declared purchaser, when sale without reserve, 194, 197. bidding, by party not authorized to bid, effect of, 194, 196, 199. acceptance of, effect of, 197. cannot be refused, when sale without reserve, 194, 197. need not be in writing, 197. opening — see wfra opening biddings, clerk of Master, may act as auctioneer, 194. <;onditions of, draft of uunecess.ir^ , 191 — see Conditions oy Sale. special, to be set out in advert'seinent, 191, 192. not to be resorted to unuecessArily, 192. when void, 1 92. standing, what are, 194. form of, 385. conduct of, ''vho entitled to, 1 89, 190. . all parties must facilitate party having, 190. duty of party having, 190. interference with party having, 190. party having, may not bid, 195. except by leave, 195. terms on whicli granted, 195, 196. agent of, may not bid, 105. solicitor of, may not bid, 190. without leave, 190. duty of, 1 f 0. . tender from, not to be accepted, 194. CI 480 Index. SALE — Continued. conduct of, plaintiff, may require defendant obtaining, to take,, 232. trustee, when entitled to, 190. contract to be signed by purcbaser, 197. deposit at, how to be paid, 198. forfeiture of, 198. security for, not required, 198, secns in England, Tb. solicitor receiving, to pay it into Court, 198. liability of, 198. in mortgage actions, to obtain, 231. — see Mortgage Actions. application to increase, 231, 232. cannot be dispensed with, 232. except from infants, lb. how applied, 232. executor, may not bid at, without leave, 195, 196. final order for, when granted, 229 — see Moetgaoe Actions. fire, vendor at risk of, until confirmation of report, 200. foreclosure, when granted after judgment for, 230, 231. mortgagor entitled to time for redemption, before, 231. guardian ad litem, may not bid at, without leave, 195, 196. immediate, in mortgage action, when ordered, 230, 231. not granted by praecipe judgment, 231. incumbrancers entitled to, on making deposit, 231. — see Mortgage Actions. irregularity in, effect of, 199. leave to bid at, when necessary, 190, 195, 196. how obtained, 196. manner of, in discretion of Master, 193. Master, may act as auctioneer, 194, 196, 197. mortgagor, claiming must deposit ^80, 231 — see Mortgage Actions. entitled to time for redemption, before final order can go, 231. notice to defendant obtaining, to take conduct of, 232. when to be filed, 233. opening biddings, application for, when to be made, 200. grounds on which granted, 200, 201. increased price, no ground for, 200. irregularity, when insufficient ground for, 201. misrepresentations in advertisement when a • ground for, 201. next friend, purchasing, a sufficient ground for, 201, notice of application for, on whom to be served, 200. purchaser a secret trustee, who repudiates- trust, is no ground for, 200. opposing, before Master, 199. in Chambers, 199. order for, copy of, need not be filed in Master's office, 189. particulars and conditions, draft of, unnecessary, 191. jjarties to action, may bid, except party having conduct 195. but it must be notified in conditions, 195. partition action, when ordered in 370. Index. 481 ■.SALE—Gontinued. possession — see Pdrchaser. postponement of, how effected, 196. not ordered, except in extreme cases, 196. private contract, by. Master may authorize, 193. puffer, may not bid, unless right reserved in conditions, 194, 197. auctioneer should not knowingly take bid from, 194. reserved bid, does not authorize employment ofi 194". purchase money — see Purchaser. costs of paying into Court, how borne, 198. purchaser, to sign agreement to purchase, 197. person declared, who had no right to bid, 194, 196, 199. receiver, may not bid at, without leave, 195, 196. report on, form of, 199, 386. opposing sale, on settling 199. re-sale, when ordered, 196. application for, 199. costs of, and deficiency on, how borne, 202. reserved bid, Master may fix, 193, 195. how fixed, 195. does not authorize vendor, or puffer to bid, 194. result of, affidavit as to, 199. certificate of Master as to, 199. seller may not bid at, when "without reserve," 194. setting aside, application for, 199, 200, 201. on application of purchaser, 194 subsequent incumbrancer, when entitled to, 231 — see Moetgagb Actions. tender, by. Master may authorize, 193. from party having conduct of sale, not to be accepted, 194. time, and place of, when to be fixed, 193. trustee, when entitled to conduct of, 190. may not bid at, without leave, 195, 196. obtaining leave to bid at, ho vv far exonerated from pro- tecting his cestui que trust, 196. upset price, Master may fix, 193, 195. vendor, right to bid, effect of condition giving, 197. cannot bid, when snle " without reserve, " 194. " without reserve," bidding at, cannot be refused, 194. SCANDAL, costs, liability of solicitor for, 60. exceptions for, abolished, 4. in affidavit, 144. motion to expunge for, 60. take proceedings off files, for, 60. SECURITY FOE COSTS, Orders relating to, 177. SEQUESTRATION, adverse claims, how enforced against sequestrator. 164. see Examination peg interesse sue, 482 Index. SEQUESTRATION— Con«;n«erf. attachment, unnecessary, before issuing writ of, 164, 165, choses in action, how far bound by, 161, 162. recovery of, how enforced under, 162. commission of, to be directed to sheriff, 166. contempt, may issue for, 161. date from which writ binds property, 161!. death of contemner, effect of, on proceedings, 164. default in payment of money, when writ may issue for, 164, 165,- 166. detainer, prima facie writ merely confers right of, 163. disposition of property sequestrated, 163. disturbing possession of sequestrator, may be restrained, 164. doc'iments in custody of ceutemnor, power of sequestrator as to, 162. examination, pro interee-ie suo — see Examination pro interesse mo-.- goods and chattels, bound by, 162. grand distress, writ is in nature of, 161. land, cannot be sold under, 164. lease by sequestrator, 163. nature of writ of, 161. non-payment of money, when writ may issue for, 163, 164, 165, 166. obstruction of sequestrator, a contempt, 164. order for, unnecessary, where contemner in custody, 161. payment of money, when enforced by, 163, 164, 165, 166. order for, need not be served, 165. pensions, how far bound by, 162. personal estate, bouod by, 161. property bound by, 161, 162, 163. rents and profits of realty, bound by, 161, 163. reversionary interest, ordered to be sold under, 163. salaries, how far bound by, 162. sale of property seized under, when ordered, 163. application for, how made, Ih. sequestrator, powers of, 162, 163. sheriff, writ to be directed to, 166. tenants, should be notified to attorn to sequestrator, 163. attorning and afterwards paying rent to another, 163. when writ may issue, 160, 161, 162. writ of, to be directed to sheriff, 166. SEQUESTRATOR — See Examination Pko interesse suo — Se- questration. persons claiming adversely, application for relief, how made, 216, 217, 218. SERVICE — See Administration — Affidavits — Attachment— Chanoe of Solicitor — Judgment — Mortoaob Actions — Parties — Quieting Titles — Report — Warrant. absconding solicitor, how effected on, 19. acceptance of, by solicitor, effect of, 21, 22. need cot be verified, 22. by posting up in office, when no agent, 19. Index. 483^ SEUYICE— Continued. of petition, 146. solicitor on record, good, till order to change served, 19. Toronto agent, cannot serve himself, 19. SEEGEANT-AT-ARMS, warrant to, or order for, abolished, 4. SET OFF. of costs, lien of solicitor, how it afifects, 29. SETTLING MINUTES-See Minutes. ot order, or judgment, 5, 6, 354, appointment to be i.-^sued for 354. non attendance of parties on, effect of 9. notice to settle, or pass, how given, 9, 354 . one days' notice sufficient, 9. SHERIFF— See Sequestration . sequestration to be directed to, 166. SITTINGS OF GOITRT— see DivisioNiL Court. Orders regulating, 222, 223, 352. SITTINGS OF JUDGE IN CHAMBERS, time for, 351. SITTINGS OF JUDGE IN COURT, time for, 352. SOLICITOR — See Change or Solicitor — Lien of Solicitor. absconding, service how effected on, 19. acceptance of service, by, effect, 21, 22. verification of, unnecessary, 22. acting for opposite party, when restrained, 24. 25. address, of, to be indorsed on first proceeding filed, 17. agent of, service on, 18, 19. bill of, taxable, tho' principal paid by commission, 375. local, whether service on, sufficient, 19. affidavits, answering, order for, 29. assignment by client of subject matter of suit operates, as dis- charge by client, 27. ceasing to act, service on, 19. change, order to, when a discharge by client, 24. of no effect till served, 19. client, discharge of by, what amounts to, 24, 26. death of, operates as discharge by chent, 27. discharged by client, effect of, on lien, 26. may act for opposite party, 25. himself, by dissolution of firm, 24. refusal to act, 27. cannot act for opposite party, 24. 4i84 Index. SOhlClTOK—Oontinued. dissolution of firm of, discharges client, 24. documents, delivery of, to draw decree, 8. injunction, to restrain from acting for opposite party, when granted, 25. divulging secrets of client, 25. lien of — see Lien oi' Solicitob. cannot prevent drawing up of decree, or order, 8. stop order, cannot defeat, 160. name of, to be indorsed on all prooeedine;s, 71. neglect and default, when not liable for, 106. misconduct of, striking off rolls for, 29, 30, 31. suspension for, 31. non-payment of money, when ground for striking off roU, 30. not when client has issued execution, 31. refusing to act, discharges himself, 27. restoring to roll, Law Society to be notified of motion for, 31. scandalous matter, liability for costs of, 60. secrets of client, restraining from divulging, 25. service of, 18 — see supra agent. where no agent appointed, 18. striking off roll, 29, 30. Court may act sua sponte, 30. grounds for, 30. subpcBna to appoint, when it may issue, 23. Toronto agent, service on, 19. trial, to attend, 73, consequence of default, lb. trustee, when entitled to costs against trust estate, 112. profit costs of, recoverable against third parties, 113. SPECIAL EXAMINER, appeal from order made by, 68. attendance of parties, before, how procured, 63. excluding parties in same interest, 64. Master may direct examination of witnesses before, 116. office of, not a public Court. 63. production of documents, may be ordered by, when, 67, 68. STATE OF FACTS. not to be brought into Master's office, 123. STATUTE OF LIMITATIONS, absentees, Court wiU not set up, in interest of, 2S0. administration, judgment for, effect of as against mortgagee in possession, 280. arrears of interest, how far barred by, 101. death of creditor, effect of, 280. defence of, how raised, 102. heir, when entitled to set up, to claim against personal represen- tative, 35, 36. interest, how far a bar to recovery of, 102. twenty years', recoverable on covenant, 101. six years', only recoverable against land, 101. on purchase money, 105. Ikdex. 485- STATUTE OF LIMITATIONS— Co«««aed. mortgagee in possession — see Mobtgaoee. order for administration, effect of as against mortgagee in pos- session, 280. partnership account, maybe pleaded as bar to, 102. personal representative, not bound to set up, 279. time for bringing action under, cannot be extended, 220. ■wben it runs, against creditor, 280. STAYING PKOCEE DINGS — See Administkation — Mortgaget- ACTIONS. STOP ORDER, applicant for, liability of, for costs &c., 158, 159. assignor, entitled to notice of application for, 159. costs, liability of party obtaining, for, 158, 159. of obtaining, 160. effect of, 159. fund ordered to be paid into Court, against, 159. jurisdiction of Court to grant, 159. lien of solicitor, not defeated by, 160. notice of, need not be served on parties not affected, 160. payment out, application for, 159. priorities, how affected by, 159, 160. trust fund in Court, against, 160. when granted, 159. STRIKING OUT PARTIES— See Parties. STYLE OF CAUSE, in proceedings, 354, 355. short, when it may be used, 354, 355. SUBPCENA— See Evidence. to appear and answer, abolished, 3. appoint new solicitor, 23. infant to show cause against decree, abolished, 325, 326. rejoin, abolished, 3. witness, to give evidence on motion, may issue, 146, 147. SUBSEQUENT INCUMBRANCER— See Incumeeanoer- Incum- BKAKCEs — Mortgage Actions — Mortgagee, costs, no priority for, when sale obtained by, 240. redeeming, may obtain relief against mortgagor, 240. SUITORS FEE FUND, 13, 17. SUPPLEMENTAL BILLS, abolished, 4. Orders relating to, 182. SURCHARGE— see Account. notice of, particulars of, to be served, 125. 486 Index. SURETY — See Morthage Actions — Parties. cannot be sued ivibhout principal, 55. SURROGATE COURT, administrator ad lite.m, may be .ippointed by, .36. appointment j! parson to represent estate, does not affect juris- diction of, 3i3. compensation, power to award — see CoMPEtrsATiON. TACKING— See Mortgage Action.s. TARIFF, Higher scale, under Ord. 309,— .395. huw far in force, 171. 615,-409. Lower scale, under Ord. 553, and liule S. C. 516,-338. ■ ' cises within, 333-336— see LowKR Scale. certificate to bj tiled iu cases lirought under, 336. form of, 337. of fees, payable to Clerk of Rooords and Writs, 332. Uepnty Registrars, 358. Inspector of Titles, 312. Masters, 353. Reft^ees of Titles, 303, 311, 312. Sheriffs, 358. Special E.xaminers, 358. TAXATIO.V— See Costs-^Taxing Officer. appeal, none from Local Mastar tj Judge, 137. lies fniin Taxing UJicers to Judge, 137. extr.aordiii.iry expenses, by plaincitf having no bcnencial interest, dis.iUjwed on, 171. order for. when nnneccLisary, 175. review of, 17-. revisiiin of, 172, 17!. severance of tletence, 174. I'ule agiinst, when applicible, 174. solicitor and client costs, when allowed bit A'eea p i.-ty and p.irty, 170, 171. tariff of fees under Ord. 309, how far in force, 171. 553 and yf«/f. S. C, 516,-398. unnecessary suits for pj.rtitiou, or sale, costs of, mj,y be dis- allowed, 376. TAXES— See Purchaser— Quieting Titles. vendor, not boaud to give evidjuce negativing arrears, 213. TAXING OFFICER— See Taxation. appeal from, how Ijrought, 172. costs exceeding $30 to be t.ixe I by, 171. order for taxaoiun, when unnecessa.ry, 175. review of t.ixation, 172. revision of taxation, 1 72, 173. Index. 487 TENANTS IN COMMON— See Partition. occupation rent, liability for, 107. partition between, — see Partition. receiver, may be appointed though no exclusion, 154. wilful neglect and default, not liable for, 107. TENDEE, defence of, should be pleaded, 251. TIME, abridging, power of Court as to, 222. days, how computed, 220. enlarging, power of Court as to, 222. for bringing action. Court has no power, 220. filing chattel mortgage, for, cannot be extended, 220. holidays, when excluded in periods of less than six days, 220. included in periods of more than six days, 220'. what are, 220. Orders relating to, 219, 220. Sunday, when excluded, 220. vacation, when excluded, 220, 221. appealing from Master's report, 221. setting down demurrer, 221, aside order of revivor, 222. or varying decrees, 222. TITLE — See Abstract op Title — Conditions of Sale — Qwietino Titles. abstract — see Abstract of title. sufi&ciency of, how determined, 210. to be delivered on demand, 208. verifioation of, 211, 212, 213. acceptance of, what id, 209. bad, not passed off by special conditions, 192. conditions of sale, as to, effect of, 172— see Conditions of Sale. costs of reference as to, 215. good, when shewn, 210. objections to, when to be delivered, 211, 213. how disposed of, 213. requistions on, when to be delivered, 211, 213. how disposed of, 213. reference as to, when ordered, 207. proceedings on, 213, 214, 215. waiver of right to, 208. TKIAL— See Evidence— Witness, argument to take place at close of evidence at, 71. counterclaim, defendant must prove, though plaintiff do not appear, 73, 74. documents, production of, at, 329. evidence, cannot be withdrawn without leave, 72. plaintiff must give, to prove claim, though defendant do not appear, 74. solicitor to attend, 73. consequence of default, 73. 62 488 Index. TRUST — See Ckstui que truht — Trustee. acconut, parties to action for, 55. action for execution of, by cestui que trust, 43. one of several, included in same instru- ment, ?n. breach of, parties to, 43. of land in foreign country, execution of, when decreed, 43. TRUSTEE — See Compensation - -Costs— Pakties — Trust. account general, when sought, all trustees must be joined, 55. agents, services of, when chargeable against trust estate, 112. gratuitous, cannot recover for services of, 1 13. appointment of, in place of executor, cannot be made, 41. bJliff, services of, when recoverable, 112. breach of trust, one of several trustees may be sued alone for, 54. cestui que trust, when represented by, 49. compensation for services 113— see Compensation. conduct of sale, when entitled to, 1 9 J. costs of solicitor trustee, when recoverable, 112. paid by, when recoverable, 113. — see Costs. •expenses of, priority to costs, 113. improvements by, when allowed, 109. interest, chargeable against, 97, 98. commencement of suit, does not stop, 98. investment by, neglect of, 97, 98. duty as to, 97, 98. loss on, liability for, 104. lending trust fund to himself, or co-trustee, 97. losses, liability for, 104. parties — see Parties. occupation rent, liabilty for, 104. profits made by, liability to account for, 97- receiver, when appointed in pl.ace of, 151, 155. repairs, allowed to, even in case of fraud, 109. retaining moneys, under belief of ownership, 97. sale, may not bid at, without leave 195, 196. conduct of, when entitled to, 190. leave to bid at. eflfect of, 190. severing, costs of, — See Costs. solicitor, when entitled to costs, 112. trading with trust fund, liability for, 97, 98. TRUST AND LOAN COMPANY OF CANADA, deeds, execution of, by, 213. UPSET PRICE— See Sale. VACATION— See Time. office hours to be observed in, 228. Orders regulating, 226. report made in, eflfect of, 134, 226. when excluded in computation of time, 220, 221. Index. 489 VENDOR AND PURCHASEK— See Abstract or Titlb— Condi- tions OF Sale — Pukchaser — Sale. conditions of sale — see Conditions or Sale. conveyance, preparation and tender of, 215. growing crops, right to, 203. interest on jurchase money, recoverable, 105, 203. lien of unpaid vendor of railway company, how enforced, 229. occupation rent, when recoverable, 107. possession, delivery of, 204 — see Pukchaser. rents and profits, rights as to, 105, 203. receiver, when appointed between, 154. taxes, evidence as to, 213. title, reference as to, 207 — see Abstract of Title — Conditions of Sale. VESTING ORDEE^See Purchaser. application for, how made, 216. costs of, 216. entry of, required, 253. when granted, 216. WAIVER — See Abstract of Title- -Irreculakity — Purchaser. WILFUL NEGLECT, AND DEFAULT. account for, when it may betakeil, 10.3, 106. agent, acting under power of attorney, how far liable for, 106. bailiflf liable for, 105, 106. English rule regarding, 102. executors, and trustees, when liable for, 103, 104. inquiry may be made under administration order, 103. liability of, for agent's receipts, 104. losses on investments, 104. inquiry may be made as to, without special directions, 103, 367. under judgment grantedin Chambers, 277, 367. mortgagee in possession, when liable for, 104, 105. partners, not liable for, 106. purchaser for value, not liable for, 106. person obtaining possession by fraud, not liable for, 106. sums charged, by reason of, to be distinguished in report. 131. tenants in common, not liable for, 106. vendor and purchaser, liability of, for, 105. WITNESS — See Evidence — Infant — Master— Motion. corroboration of, when necessary, 117, 118. criminal, refusing to testify, 72. cross examination of, in Master's office, 118. discrediting. 71. Examination of, on Motions, attendance of, 146, 147. committal of, otion for, 148. default of, how j uaished, 148. fees of, 147. 490 Index. WITSESS— Continued. Examination of, on motions. notice of, to opposite party, 148. witness, 148. order for, whether necessary, 147. examination may be obtained though no motion pending, 147. recalling, in Master's office, when allowed, 118. rule to produce, abolished, 4. WORDS, interpretation, of in Chancery Orders, 4, 5. WRIT — See Possession— Sequestration. receiver, claim for, to be indorsed, 150. ^-Sa»3r^ fe> > ^l K?/