X 3 j"^- > _:>^ :3> >:>^:s>.;j -K -,-o^... ■*-*>, ^-_3-^ -g>;,!>-a2> ,. ^,d4 -iaa ■>>■ -j*;ai3b^ >;» x>i> j> >!>.' :£>"^ ?:> ;» > > ^ i.>3>-^ .:>';>::> >>.' 5> .:3r >-•>■')> -'>>i>-:-» »..:» >■>.• j> .52 ->>'j>.3>-> "> ■■•3'^:> ^:o> .X)i>3>3: -. .. _-. ^ -_ ^^ -.ixmijy :>^ > '-, // // Olortipll Ham ^rl|nol Sltbrary maraljaU lEquttg (Cnllertion (iift of IE. 3. lllar0haU. 21- S. 1. 1834 CORNELL UNIVERSITY LIBRARY 3 1924 085 504 995 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/details/cu31924085504995 CONCISE TREATISE PRACTICE AND PROCEDURE CHANCERY ACTIONS. SYDNEY PEEL, OF THE MIDDLE TEMPLE, ESQ., BAUiUSTER-AT-LAW. SECOITD EDITION. LONDON : STEVENS AND SONS, 119, CHANCERY LANE, fitfo f xtWial^OT nxib §aa'kuUm, 1881. PREFACE TO THE SECOND EDITION. Objection was taken to the first edition of this work that its utility, especially to students, was marred by the absence of any, but incidental, reference to the practice in Judges' Chambers. It is felt that this objection was not ill-founded, and, to meet it, there have been added, in the present edition, a few supplemental chapters dealing shortly with Applications in Chambers, Proceedings in Chambers under Judgment, and Further Consideration, and, to increase facility of reference, a table of orders is also added. April, 1881. PKEFACE TO THE FIRST EDITION. Notwithstanding the various able works, published' during the last few years, which treat of the Judicature Acts and Orders, it is thought that there is still room for a work of lesser dimensions confined exclusively to the practice relating to Chancery actions, and that, conse- quently, the present work may not be altogether without value, either to students or to those in actual practice. It has not been thought necessary to adhere in any way to the order in which each step or proceeding is dealt with by the Judicature Orders, but endeavours have been made to take each step, so far as possible, in the order in which it actually occurs in the action, by which method it is thought that a readier insight may be afforded to the student of the working of the_present practice, while it is hoped that the value of the work to the profession (should it be found fortunate enough to possess any) as a book of reference, may be, thus, rather increased than impaired. No pains have been spared in collecting the cases, and it is believed that no reported case, decided since the Judicature Acts came into operation, which has any direct bearing on the present practice relating to Chancery actions, has been omitted. It has not, however, been thought necessary to cite any case decided before that period, but. vi PREFACE TO THE FIHST EDITION. ■wherever the former practice and earlier cases are still material, reference is given to one or other of the leading text books. In citing cases reported in the Law Reports, reference to those reports alone is given in the foot-notes ; while, in citing cases not reported in the Law Reports, reference is given to the Weekly Notes, where the case is reported there, and to one or two other, but not necessarily to all the other, reports. In the table of cases, however, the plan of Mr. Wilson's last edition has been adopted, and, there, reference will be found to every report of each case. In the text reference will be found to all cases decided up to Easter in the present year, while in the table of cases reference to the May numbers of the Law Reports and Law Journal will be found. The forms in the Appendix are, with three exceptions — viz., Nos. 17, 18, and 33 — taken from the schedule to the Judicature Act of 1875 ; of the three new forms, No. 33 was recently prescribed by a registrar's notice, while Nos. 17 and 18, which are original, are substituted for Nos. 10, 14, and 24 of Appendix C to the schedule of the Act, on account of the extensive length of No. 14, and of the probable insufficiency, in accordance with recent deci- sions, of Nos. 10 and 24. In conclusion, the very great assistance derived from Mr. Wilson's work in compiling the table of cases given in the present work is thankfully acknowledged. May, 1878. TABLE Of CONTENTS. — * PAGE PREFACE TO SECOND EDITION iii PREFACE TO FIRST EDITION v TABLE OF CASES xiii TABLE OF ORDERS xxxvii ADDENDA xl CHAPTER I. Issue of Writ. 1 CHAPTER 11. Service of Writ 6 CHAPTER III. Appearance 13 CHAPTER IV. Proceediiigs in Default of Appearance 16 Vlll CONTENTS. CHAPTER V. PAGE Proceedings on Writ Endorsed with Claim for Account . . 18 CHAPTER VI. Actions Assignable to Chancery Division .... 20 CHAPTER VII. Joinder of Different Causes of Action 22 CHAPTER VIII. Parties to an Action 25 CHAPTER IX. General Rules as to Pleadings .... . . 32 CHAPTER X. Special Case 38 CHAPTER XI. Statement of Claim .41 CHAPTER XII. Statement of Defence .44 CHAPTER XIII. Counterclaim 47 CHAPTER XIV. Joinder by Defendant of Third Parties by Notice ... 52 CHAPTER XV. Reply to Defence Alone 56 CONTENTS. IX CHAPTER XVI. PAGE Reply to Counterclaim 58 CHAPTER XVII. Rejoinder .60 CHAPTER XVIII. Close of Pleadings 61 CHAPTER XIX. Discontinuance ... 62 CHAPTER XX. Payment into Court in Satisfaction of Plaintiff's Claim . . 64 CHAPTER XXI. Demurrer . 66 CHAPTER XXII. Amendment by Alteration of Parties . . . . 70 CHAPTER XXIII. Amendment of Pleadings . 76 CHAPTER XXIV. Interrogatories 81 CHAPTER XXV. Production of Documents . ,87 CHAPTER XXVI. Motions on Default of Pleadings 92 X CONTENTS. CHAPTER XXVII; PAGE Motions on Admissions in the Pleadings 95 CHAPTER XXVIII. Evidence ... 97 CHAPTER XXIX. Admissions ........... 103 CHAPTER XXX. Notice of Trial 104 CHAPTER XXXI. Entry for Trial .108 CHAPTER XXXII. Control of Court over Mode of Trial . . . . . 110 CHAPTER XXXIII. Trial of the Action 114 CHAPTER XXXIV. Trial before Referee .117 CHAPTER XXXV. Application for New Trial 122 CHAPTER XXXVI. Motion for Judgment 125 CHAPTER XXXVII. Entry of Judgment 128 CONTENTS. XI CHAPTER XXXVIII. PAGE Interlocutory Relief 130 CHAPTER XXXIX. General Applications . 135 CHAPTER XL. Appeals . . .137 CHAPTER XLI. Transftr of Actions 150 CHAPTER XLII. Change of Parties by Death, &c. . . . .155 CHAPTER XLIII. Proceedings in District Registries . . . 159 CHAPTER XLIV. Enforcing the Execution of Judgments and Orders . . 166 CHAPTER XLV. Attachment of Debts 173 CHAPTER XLVI. Costs ... 176 CHAPTER XLVII. Time . . . .178 CHAPTER XLVIII. Applications in Chambers 180 XU CONTENTS. CHAPTER XLIX. PAGE Proceedings in Chambers under Judgment ... . 184 CHAPTER L. Further Consideration 191 APPENDIX OP FORMS . ... . . 193 INDEX .221 TABLE OF CASES. PAGE Abud v. Riches, 2 Ch. D. 528 ; 45 L. J. Ch, 649 ; 34 L. T. 713 ; 24 W. E. 637 167 Adair v. Young, 11 Ch. D. 136 ; 40 L. T. 46, 598 . . . 145 Adcock V. Peters, W. N. 76, 139 ... . . 30 Aitken v. Dunbar, 46 L. J. Ch. 489 ... 51, 93 Allen V. Kennett, 24 W. R. 845 23 Allhusen v. Labouchere, 3 Q. B. D. 654 ; 47 L. J. Ch. 819 ; 48 li. J. Q. B. 34 ; 27 W. R. 12 ; 39 L. T. 207 . . . . 85 Ambroise v. Evelyn, 11 Ch. D. 759 ; 48 L. J. Ch. 686 ; 27 W. R. 639 56, 106 Amos «. Chadwick, 9 Ch. D. 459 ; 47 L. J. Ch. 871 ; 26 W. R. 840 ; 39 L. T. 50 154 Anderson v. Bank of British Columbia, 2 Ch. D. 644 ; 45 L. J. Ch. 449 ; 35 L. T. 76 ; 24 W. R. 724 .. . 88, 89 Anglo-Italian Bank v. Davies, 9 Ch. D. 275 ; 47 L. J. Ch. 833 ; 27 W. -R. 3 ; 39 L. T. 244 130, 131, 168 Anstey v. N. & S. Woolwich Subway Co., 11 Ch. D. 439 ; 48 L. J. Ch. 776 ; 40 L. T. 393 ; 27 W. R. 575 . . . 85 Ashley v. Taylor, 37 L. T. 522 ; 38 L. T. 44 . . . . 83 Ashley V. Taylor, 10 Ch. D. 768 ; 48 L. J. Ch. 406 ; 27 W. R. 228 156 Ashworth v. Outram, 9 Ch. D. 483 ; 39 L. T. 441 ; 27 W. R. 98 147 Aslatt V. Corporation of Southampton, 16 Ch. D. 143 ; 50 156 L. J. Ch. 31 130 Asquith v. Molyneux, W. N. 80, p. 156 ; 49 L. J. Q. B. 800 . 104 Associated Home Co. v. Whichcord, 8 Ch. D. 457 ; 47 L. J. Ch. 652 ; 38 L. T. 602 ; 26 W. R. 774 .. . 53, 151 Atkiais Estate, Re, 1 Ch. D. 82 ; 45 L. J. Ch. 117 ; 24 W. E. 39 156 xiv TABLE OF CASES. PA(JE Attorney-General v. BiphospTiated Guano Co., 11 Ch. D. 327 ; 40 L. T. 201 ; 27 W. E. 621 35 Attorney- General v. Council of Birmingham, 15 Ch. D. 423 ; 29 W. E. 127 72 ■Attorney-General v. Gt. Eastern Eailway Co., 48 L. J. Ch. 428 ; 27 W. E. 759 142 Attorney-General v. Pagham Harbour Reclamation Co., W. N. 76,94 100 Attorney-General v. Shrewsbury Bridge Co., W. N. 80, p. 23 ; 42 L. T. 79 41 Attorney-General v. Swansea Improvements and Tramway Co., 9Ch. D. 46; 48L. J. Ch. 72 144 Attwood V. Chichester, 3 Q. B. D. 722 ; 47 L. J. Q. B. 300 ; 38 L. T. 48 ; 26 W. R. 320 29, 115 Angustinus v. Nerinckx, 16 Ch. D. 13 ; 43 L. T. 458 ; 29 W. E. 225 82 Back v. Hay, 5 Ch. D. 235 ; 36 L. T. 295 ; 25 W. R. 392 112, 113 Bacon V. Turner, 34 L. T. 647 11 Bagot V. Easton, 7 Ch. D. 1 ; 47 L. J. Ch. 225 ; 37 L. T. 369 ; 26 W. E. 66 22, 79 Bagot V. Easton, 11 Ch. D. 392 ; 27 W. E. 404 . . . . 52 Baker v. Oakes, 2 Q. B. D. 171 ; 46 L. J. Q. B. 246 ; 35 L. T. 832 ; 25 W. E. 220 176 Bank of Whitehaven v. Thompson, W. N. 77, 45 . . . . 6 Banque Franco- Egyptienne v. Lutscher, W. N. 79, p. 183 ; 28 W. E. 133 ; 41 L. T. 468 101 Bartholomew v. Freeman, 3 C. P. D. 316 ; 38 L. T. 814 ; 26 W. E. 743 132 Bartholomew v. Eawlings, W. N. 76, 56 50 Beal i>. Pilling, 38 L. T. 486 . . . . . 81, 83 Beale v. Euston, W. N. 78, p. 179 28 Beaney v. Elliott, W. N. 80, p. 99 19, 192 Beddow u. Beddow, 9 Ch. D. 89 ; 47 L. J. Ch. 588 ; 26 W. E. 570 130 Bell V. Wilkinson, W. N. 78, 3 ; 26 W. R. 275 . . . . 69 Benbow v. Low, 13 Cli. D. 553 ; 49 L. J. Ch. 259 ; 42 L. T. 14 ; 28 W. E. 384 68, 83 Benbow r. Low, 16 Ch. D. 93 ; 50 L. J. Ch. 35 ; 44 L. T. 119 ; 28 W. B. 891 ; 29 W. R. 265 83 TABLE OV CASES. XV PAGE Benecke v. Fi-ost, 1 Q. B. D. 419 ; 45 L. J. Q. B. 693 ; 34 L. T. 728 ; 24 W. R. 669 , . 55 Bennett v. Bury, 5 C. P. D. 339 ; 49 L. J. C. P. 411 ; 42 L. T. 480 154 Bennett v. Moore, 1 Cli. D. 692 ; 45 L. J. Ch. 275 ; 24 W. R. 690 95, 127 Berdan v. Birmingham Small Arms and Metal Co., 7 Ch. D. 24 ; 47L. .J.Ch. 96; 37L. T. 588; 26W. R. 89 . . .140 Berdan v. Greenwood, 3 Ex. D. 251 ; 47 L. J. Ex. 628; 39 L. T. 223 ; 26 W. R. 902 65 Berkeley v. Standard Diseount Co., 9 Ch. D. 643 ; 12 Ch. D. 97 ; 13 Ch. D. 97 ; 49 L. J. Ch. 41 ; 41 L. T. 374 ; 28 W, R. 165 82, 83 Bernard v. Hardwick, W. N. 76, 134 33 Betts V. Doughty, 5 P. D. 26 ; 48 L. J. P. D. 71 ; 41 L. T. 560 77 Beynon v. Godden, 4 Ex. D. 246 ; 48 L. J. Q. B. 80 . . 54 Bigsby V. Dickinson, 4 Ch. D. 24 ; 46 L. J. Ch. 280 ; 35 L. T. 679 ; 25 W. R. 89, 122 146, 147, 148 Birmingham Estates Co, v. Smith, 13 Ch. D. 506; 49 L. J. Ch. 251 ; 42 L. T. Ill ; 28 W. R. 666 . . .48,50,131,150 Birmingham Waste Co. v. Lane, W. N. 76, p. 50 ; 24 W. R. 292 160 BishoTp, Ex parte, 15 Ch-T). 419 139 Blackburn Union v. Brooks, 7 Ch. D. 68 ; 47 L. J. Ch. 156 ; 37 L. T. 427 ; 26 W. R. 57 100, 101 Blackmore v. Edwards, W. N. 79, p. 175 76 Blain, Ex parte, 12 Ch. D. 522 ; 41 L. T. 46 . . . .30 Blake v. Albion Life Assurance Co., 24 W. R. 677 ; 45 L. J. C. P. 663 ; 35 L. T. 269 32, 43 Blenkhorn v. Penrose, 43 L. T. 668 * 77 Ely th V.Young, Be, 13 Ch. D. 416 ; 41 L. T. 746 ; 28 W. R. 266 137, 142 Boddy V. Wall, 7 Ch. D. 164 ; 47 L. J. Ch. 112 . . 80, 93 Bolton V. Bolton, 2 Ch. D. 217 ; 34 L. T. 123 ; 24 W. R. 426 . 101 Bordier v. Burrell, 5 Ch. D. 512 : 46 L. J. Ch. 615 ; 25 W. R. 801 113 Bowen v. Bowen, W. N. 76, p. 31 ; 24 W. B. 246 . . . 94 Bower v. Hartley, 1 Q. B. D. 652 ; 46 L. J. Q. B. 126 ; 24 W. R. 941 53 Boyd's Trusts, iJe, 1 Ch. D. 12 151 Boyes v. Cook, W. N. 76, 28 ; 33 L. T. 778 41 Boynton v. Boynton, 9 Ch. 250 ; 4 App. C. 733 ; 27 W. R. 141, 825 ; 39 L. T. 688 157 XVI TABLK OF CASES. PAGE Braginton v. Yates, W. N. 80, p. 150 104 Brassington v. Cussons, 24 W. R. 881 161 Breton v. Mookett, W. N. 75, 255 ; 33 L. T. 684 . . . . 41 Bridson v. Smith, W. N. 76, 103 ; 24 W. R. 392 . . 93, 95 Broadhurst v. Willey, W. N. 76, 21 65 Brocklebank v. Lynn Steamship Co., 3 C. P. D. 365 ; 47 L. J. , C. P. 321 ; 27 W. R. 94 177 Brooke v. Wigg, 8 Ch. D. 510 ; 47 L. J. Ch. 749 ; 38 L. T. 549, 732 ; 26 W. R. 729 104,112,113 Browning v. Sabin, 5 Ch. D. 511 ; 46 L. J. Ch. 728 . . 167 Bryant v. Bull, 10 Ch. D. 153 ; 48 L. J. Ch. 325 ; 39 L. T. 476 ; 27 W. R. 246 131, 168 Buckton V. Higga, 4 Ex. D. 174 ; 27 W. R. 803 ; 40 L. T. 755 . 65 Budding v. Murdoch, 1 Ch. D. 42 ; 45 L. J. Ch. 213 ; 24 W. R. 23 77 Buist V. Bridge, W. N. 80, p. 176 ; 43 L. T. 432 ; 29 W. R. 117 167 Burgoine'j). Taylor, 9 Ch. D. 1 ; 47 L. J. Ch. 542 ; 38 L. T. 438 ; 26 W. R. 436, 568 115 Burke v. Rooney, 4 C. P. D. 226 ; 48 L. J. C. P. 601 ; 27 W. R. 915 92, 179 Burnell v. Bumell, 11 Ch. D. 213 ; 48 L. J. Ch. 412 ; 27 W. R. 749 95 Burns v. Irving, 3 Ch. D. 291 ; 46 L. J. Ch. 423 ; 34 L. T. 752 ; 25 W. R. 66 172 Bustros V. Bustros, 14 Ch. D. 849 ; 49 L. J. Ch. 396 ; 28 W. R. 595 8 lustres V. White, 1 Q. B. D. 423 ; 45 L. J. Q. B. 642 ; 34 L. T. 835 ; 24 W. E. 721 89 Byrd v. Nunn, 5 Ch. D. 781 ; 37 L. T. 90 ; 25 W. R. 749 ; 7 Ch. D. 284 ; 47 L. J. Ch. 1 ; 37 L. T. 585 ; 26 W. R. 101 Caldwell v. Pagham Harbour Reclamation Co., 2 Ch. D. 221 45 L. J. Ch. 796 ; 24 W. R. 690 Callander v. Hawkins, 2 C. P. D. 592 ; 26 W. R. 212 . Campion v. Formby, 7 Ch. D. 373 ; 47 L. J. Ch. 395 ; 26 W. R, 391 Canadian Oil Works v. Hay, 38 L. T. 549 .... Cannot v. Morgan, 1 Ch. D. 1 ; 45 L. J. Ch. 50 Capes V. Brewer, W. N. 75, 193 ; 24 W. R. 40 . 78 46 45 179 21 6 TABLE OF CASES. XVU PAGE Cargill V. Bower, 4 Ch. D. 78 ; 46 L. J. Ch. 175 ; 35 L. T. 621 ; 25 W. E. 221 77 Caigill V. Bower, 47 L. J. Ch. 649 43, 77 Carter v. Stubbs, 6 Q. B. D. 116 ; 50 L. J. Q. B. 161 ; 43 L. T. 746 ; 29 W. R. 132 92, 127 Cartsbum, The, 5 P. D. 35, 59 ; 41 L. T. 710 ; 28 W. R. 378 . 55 Cash V. Parker, 12 Ch. D. 293 ; 48 K J. Ch. 691 ; 40 L. T. 878 ; 27 W. R. 835 132, 155 Cashin v. Cradock, 2 Ch. D. 140 ; 34 L. T. 52 . . . 87 Cashin v. Cradock, 3 Ch. D. 376 ; 35 L. T. 452 ; 25 W. R. 4 43, 78 Cassiopeia, The, 4. P. D. 188 ; 48 L. J. P. D. 39 ; 40 L. T. 869 ; 27 W. E. 703 74 Catling V. King, 5 Ch. D. 660 ; 46 L. J. Ch. 384 ; 36 L. T. 526 ; 25 W. R. 550 36, 66 Cavander's Trusts, Be, 16 Ch. D. 270; 50 L. J. Q. B. 292 ; 29 "W. E. 405 138 Chapman v. Mason, "W. N. 79, p. 93 ; 40 L. T. 678 . . . 152 Charlton v. Charlton, 16 Ch. D. 273 ; 29 W. E. 406 . . . 140 Chester v. Phillips, 4 Ch. D. 230 ; 46 L. J. Ch. 95 ; 35 L. T. 902 ; 25 W. E. 211 28 Chesterfield Co. v. Black, 13 Ch. D. 138, n. ; 25 W. E. 409 . 77, 85, 180 Child V. Stenning, 5 Ch. D. 695 ; 46 L. J. Ch. 523 ; 36 L. T. 426 ; 25 W. E. 519 26, 72 Child V. Stenning, 7 Ch. D. 413 ; 47 L. J. Ch. 371 ; 38 L. T. 232 ; 26 W. E. 265 26 Chorlton v. Dickie, 13 Ch. D. 160 ; 49 L. J. Ch. 40 ; 41 L. T. 467; 28 W. E. 228 34,114,158 Church e. Peny, 36 L. T. 513 84, 85 City of Manchester, The, 42 L. T. 521 . . . . 138, 149 Clarke v. Callow, W. N. 76, 262 ; 46 L. J. Q. B. 53 . . . 35 Clarke v. Cookaon, 2 Ch. D. 746 ; 45 L. J. Ch. 752 ; 34 L. T. 646 ; 24 W. R. 535 42, 105, 113 Clay and Tetley, Be, 16 Ch. D. 3 ; 50 L. J. Ch. 164 ; 43 L. T. 401 X41 Clements v. Norris, W. N. 77, 248 ; 26 W. E. 94 . . 105,. 113 Clements v. Norris, W. N. 78, 4 109, 153 Clowes V. HiUiard, 4 Ch. D. 413 ; 25 W. E. 224 . . . 71, 72 Coalhupe v. Lewis, W. N. 79, p. 180 139 Cockle V. Joyce, 7 Ch. D. 56 ; 47 L. J. Ch. 543 ; 37 L. T. 428 ; 26 W. E. 41 115 p b xviii TABLE OF CASES. PAGE Cockshott 1). London General Gab Oo.,"W. N. 77, 214; 47 L. J. Ch. 126 ; 26 W. E. 31 l^"^ Coddington v. Jacksonville By. Co., 39 L. T. 12 . . ■ • 132 Colebourne v. Coleboume, 1 Oh. D. 690 ; 45 L. J. Gb. 749 ; 24 W. R. 235 . . . _ 130, 131 Oollett V. Dickenson, 26 W. E. 403 66 Collette V. Goode, 7 Gh. D. 842 ; 47 L. J. Gh. 370 ; 38 L. T. 504 . . . 35, 45, 78 Collie, Re, 2 Cb. D. 51 ; 45 L. J. (Bkcy.) 116 ; 34 L. T, 603 ; 24 W. R. 310 54 Collins u. Vestry of Paddington, 5 Q. B. D. 368 ; 49 L. J. Q. B. 264, 612 ; 42 L. T. 573 ; 28 W. E. 588 . 141, 142, 179 Conacher •». Conaoher, W. N. 81, p. 2 ; 29 W. E. 230 . . . 134 Gonybeare v. Lewis, 13 Gh. D. 469 ; 28 W. E. 330 . . . 63 Cook V. Day, 2 Gb. D. 218 ; 45 L. J. Ch. 611 ; 24 W. E. 40 . 6 Cook V. Encbmarch, 2 Gb. D. Ill ; 45 L. J. Cb. 504 ; 24 W. R. 293 23 Cooper v. Blissett, 1 Ch. D. 691 ; 45 L. J. Ch. 272 ; 24 W. E. 535 30 Cooper V. Cooper, 2 Cb. D. 492 ; 45 L. J. Ch. 667 ; 24 W. E. 628 144, 145 Cox V. Barker, 3 Ch. D. 359 ; 35 L. T. 685 26 Coyle V. Cuming, 40 L. T. 455 ; 27 W. R. 529 . . . . 78 Craig V. Phillips, 7 Ch. D. 249 ; 47 L. J. Cb. 239 ; 26 W. E. 293 142 Crane v. Jullion, 2 Ch. D. 220 ; 24 W. E, 691 . . . . 6, 7 Crawford v. Hornsea Steam Brick and Tile Works Co., 24 W. E. 422 147 Credit Co., Be, 11 Cb. D. 256 90 Cremetti ■>!. Croom, 4 Q. B. D. 225 ; 48 L. J. Q. B. 337 ; 27 W. E. 411 174 Cresswell v. Parker, 11 Cb. D. 601; 40 L. T. 599; 27 W. E. 897 . . . , 9, 10 Crowe V. Barnicot, 6 Ch. D. 753 ; 46 L. J. Gh. 855 ; 37 L. T. 68 ; 25 W. R. 789 48 Cruse V. KuttingeU, "W. N. 75, 250 8 CuUey V. Wortley, 4 Ch. D. 180 ; 46 L. J. Gh. 182 . . . 74 Cummins v. Heron, 4 Gh, D. 787; 46 L. J. Ch. 423 ; 36 L. T. 41 ; 25 W. R. 325 142 Dallinger v. St. Albyn, 41 L. T. 406 77 Dalston v. Nanson, W. N. 78, 81 ; 26 W. R. 434 . . . 86 Daroy v. Whittaker, W. N. 76, 17 ; 33 L. T. 778 .. . 156 TABLE OF CASES. XIX PAGE David V. Dalton, W. N. 79, p. 86 41 Davies v. Garland, 1 Q. B. D. 250 ; 45 L. J. Q. B. 137 ; 33 L. T. 727; 24 W. R. 252 • 6 Davis V. Davis, 48 L- J. Ch. 40 150 Davy Bros. t>. Garrett, 7 Ch. D. 473 ; 47 L. J. Cli. 218 ; 38 L. T. 77 ; 26 W. E. 225 32, 43, 78, 79 Dawkins v. Lord Penrhyn, 6 Ch. D. 318 ; 4 App. C. 51 ; 48 L. J. Ch. 304 ; 36 L. T. 680 ; 37 L. T. 80 ; 39 L. T. 583 ; 26 W. R. 6 ; 27 W. R. 173 32, 35, 66, 67 Dawson v. Shepherd, 49 L. J. Ex. 529 ; 42 L. T. 611 ; 28 W. R. 805 55 Day V. Browmigg, 10 Ch. D. 294 ; 48 L. J. Ch. 173 ; 39 L. T. 226, 553; 28 W. B. 217 130 Day V. Radcliffe, 24 W. R. 844 27 Day V. Whittaker, 6 Ch. D. 734 ; 46 L. J. Ch. 680 ; 36 L. T. 683 ; 25 W. R 767 162 Dear v. Sworder, 4 Ch. D. 476 ; 46 L. J. Ch. 100 ; 25 W. R. 124 49 De Bergue v. De Bergue, W. N. 80, p. 191 . . . . 78 De Hart v. Stevenson, 1 Q. B. D. 313 ; 45 L. J. Q. B. 575 ; 24 W. R 367 30, 72 Dence v. Mason, W. N. 79, p. 31 143 Dent V. Sovereign Life Assurance Co., W. N. 79, p. 33 ; 27 W. R. 379 Ill Dicks V. Brooks, 13 Ch. D. 652 ; 43 L. T. 71 ; 28 W. R. 525 . 130 Dickson >. Harrison, 9 Ch. D. 243 ; 47 L. J. Ch. 686 ; 38 L. T. 794 ; 26 W. R. 730 182 Dickson's Case, 12 Ch. D. 298 ; 41 L. T. 184 ; 27 W. R 880 . 182 Disney v. Longbume, 2 Ch. D. 704 ; 45 L. J. Ch. 532 ; 35 L. T. 301 ; 24 W. E. 663 82 Dollman v. Jones, 12 Ch. D. 563 ; 41 L. T. 258 ; 27 W. R. 877 123, 141 Dowdeswell v, Dowdeswell, W. N. 77, 228 . . . .115 Doyle V. Kaufman, 3 Q. B. D. 7, 340 ; 47 L. J. Q. B. 26 ; 26 W. R. 98 5 Duchess of Westminster Silver Lead Ore Co., Be, 10 Ch. D. 307; 40 L. T. 300 ; 27 W. R 539 137, 147 Duckett V. Cover, 6 Ch. D. 82; 46 L. J. Ch. 407 ; 25 W. B. 455 69, 70, 73 Duckett V. Jones, W. N. 76, 17; 33 L. T. 777 . . . . 33 Dunkirk Colliery Co. v. Lever, 9 Ch. D. 20 ; 39 L. T. 239 ; 26 W. R. 841 117, 120 b 2 XX TABLE OF CASES. PAGE Burling v. Lawrence, W. N. 77, 182 ; 46 L. J. Ch. 808 . • 80 Dymcmd v. Croft, W. N. 76, 193 ; 24 W. B.. 842 ; 45 L. J. Ch. B04 ; 34 L. T. 786 6> ^ Dymond v. Croft, 3 Ch. U. 512 ; 45 L. J. Ch. 312; 35 L. T. 27 ; 24 W. K. 700 8, 34, 94, 127, 134, 136 Dyson v. Pickles, W. N. 79, p. 12 ; 27 W. R. 376 ... 163 Ea.de v. Jacohs^ Ex. D. 335 ; 37 L. T. 621 ; 47 L. J. Ex. 74 . 83 Eames v. Hacon, W. N. 81, p. 4 145 Earp V. Faulkner, W. N. 76, p. 181 ; 34 L. T. 284 ; 24 W. E. 774 123 Earp V. Henderson, 3 Ch. D. 254 ; 45 L. J. Ch. 738 ; 34 L. T. 844 56, 60 Eden v. Naish, 7 Ch. D. 781 ; 47 L. J. Ch. 325 ; 26 W. E. 392 131 Edwards v. Lowther, 45 L. J. C. P. 417 ; 34 L. T. 255 ; 24 W. R 434 72 Egremont Burial Board v. Egremont Iron Ore Co., 14 Ch. D. 158; 42 L. T. 179; 28 W. E. 594; 49 L. J. Ch. 523 . 87 Eldridge v. Burgess, 7 Ch. D. 411 ; 47 L. J. Ch. 342 ; 38 L. T. 232 ; 26 W. E. 435 115, 156 EUis V. Amhler, 36 L. T. 410 ; 25 W. E. 557 . . . , 81 Ellis V. Houstoun, 10 Ch. D. 236 ; 27 W. R. 501 . . . . 68 Ellisv. Munson, W. N. 76, 253; 35L. T. 585. ... 47 Emma Silver Mining Co. v. Grant, 11 Ch. D. 920 ; 40 L. T. 804 " . Ill Emma Silver Mining Co. v. Lewis & Son, 48 L. J. C. P. 504 . 145 Esdaile v. Visser, 13 Ch. D. 421 ; 28 W. R. 281 . . . . 166 Evans, Ex parte, 11 Ch. D. 691 ; 13 Ch. D. 252 ; 49 L. J. Bkcy. 7 ; 41 L. T. 565 ; 28 W. R. 127 168 Evans v. Buck, 4 Ch. D. 432 ; 46 L. J. Ch. 157 ; 25 W. R. 392 26, 49 Evans v. Davies, W. N. 78, ^.222 22 Evelyn v. Evelyn, 42 L. T. 248 ; 28 W. E. 531 . . . 32, 92 Evennett v. Lawrence, 4 Ch. D. 139 ; 46 L. J. Ch. 119 ; 25 W. R. 107 142 Eyre v. Cox, W. N. 77, 38 ; 46 L. J. Ch. 316 . . . . 5 Eyre v. Cox, 24 W. R. 317 2, 30, 77 Field v. Field, W. N. 77, 98 X52 Finlay v. Davis, 12 Ch. D. 735 ; -39 L. T. 662 ; 27 W." R ^^*' ^^^ 161, 165 TABLE OF CASES. XX i PAGE Fisher v. Owen, 8 Ch. D. 645 ; 47 L. J. Ch. 681 ; 38 L. T. 252, 577 ; 26 W. K. 417, 581 84 Fortescue v. Fortescue, 34 L. T. 847 ; 24 W. R. 945 . . . 88 Foster v. Edwards, 48 L. J. Q. B. 767 162 Foster v. Gamgee, 1 Q. B. D. 666 ; 45 L. J. Q. B. 576 ; 34 L. T. 248 ; 24 W. R. 319 45 Fowler v. Knoop, W. N. 77, 68 ; 36 L. T. 219 . . . . 55 Frearson v. Loe, W. N. 77, 245 ; 26 W. E. 138 . . 92, 106 Freeman v. Cox, 8 Ch. D. 148; 47 L. J. Ch. 560; 26 W. R 689 132 Fritz •». Hobson, 14 Ch. D. 542 ; 42 L. T. 677 ; 28 "W. R. 722 . 129 Fryer v. Eoyle, 5 Ch. D. 540 ; 36 L. T. 441 ; 25 W. R. 528 . 30 Fryer v. Wiseman, W. N. 76, 3 ; 24 W. E. 205 ; 45 L. J. Ch. 199 ; 33 L. T. 779 97 Fumess v. Booth, 4 Ch. D. 586 ; 46 L. J. Ch. 112 ; 25 W. E. 267 53 Gardner v. Irvin, 4 Ex. D. 49 ; 48 L. J. Ex. 223 ; 40 L. T. 357 ; 27 W. R. 442 88, 89 Garling v. Royds, 25 W. R. 123 113 Gaskin v. BaUs, 13 Ch; D. 324 ; 28 W. R. 552 ... 130 Gatti-y. Webster, 12 Ch. D. 771 ; 48 L. J. Ch. 763 ; 41 L. T. 18 ; 27 W. E. 935 18, 42 Gay V. Ijabouchere, 4 Q. B. D. 206 ; 48 L. J. Q. B. 279 ; 27 W. R. 413 84 Gilbert v. Comedy Opera Co., 16 Ch. D. 594 ; 43 L. T. 665^ 29 W. E. 169 .98 GUbert v. Endean, 9 Ch. D. 269; 39 L. T. 404; 27 W. R. 252 99, 132 GUbert v. Smith, 2 Ch. D. 686 ; 45 L. J. Ch.. 514 ; 35 L. T. 43 ; 24 W. R. 568 95, 96, 127 GiUott V. Kerr, W. N. 76, 116 ; 24 W. E. 428 . . . . 34 Gledhill v. Hunter, 14 Ch. D. 492 ; 49 L- J. Ch. 333 ;,42 L. T. 392 ; 28 W. E. 530 23, Glossop V. Heston and Isleworth Local Board, W..N. 78, 72 ; 47 L. J. Ch. 536 ; 26 W. R. 433 97 Golding V. Wharton Salt Works Co., 1 Q. B. D. 374 ; 34 L. T. 474 ; 24 W. R. 423 79 Goodbame v. Fothergill, 10 Ch. D. 613 ; 40 L. T. 408 ; 27 W. R. 587 MO Goodrich i;. Marsh, W. N. 78, p. 186 27 Goodwin v. Budden, 42 L. T. 536 . . . . . .117 xxii TABLE OF CASES. PAflE Gover's Case, 24 W. E. 36 ; 45 L. J. Ch. 83 . • • ■ 1^0 Graham v. Campbell, 47 L. J. Ch. 593 ; 38 L. T. 195 . ■ 149 Grant v. Banque Franco-Egyptienne, 1 C. "P. D. 143 . • • 1*4 Grant, v. Banque "Ij'ranco-Egyptienne, 2 C. P. D. 430 ; 47 L. J. C. P. 41 ; 34 L. T. 470 ; 24 W. B. 339 . . • ■ 143 Grant D. Banque Franco-Egyptienne, 3 C. P. D. 202 ; 47 L. J. Ch. 455 ; 38 L. T. 622 ; 26 W. R. 669 145 Grant v. Holland, W. N. 80, p. 156 122 Graves v. Taylor, 27 W. E. 412 121 Great Australian Gold Mining Co. v. Martin, 5 Ch. D. 1 ; 46 L. J. Ch. 289 ; 35 L. T. 874 ; 25 W. E. 246 . - . 10 Greaves vl Flemming, 4 Q. B. D. 226 ; 48 L. J. Q. B. 335 ; 27 W. R. 458 65 Green v. Coleby, 1 Ch. D. 693 ; 45 L. J. Ch. 303 ; 24 W. R. 246 41 Green v. Pratt, 48 L. J. Ch. 681 ; 41 L. T. 30 . . . . 157 Green v. Sevin, 13 Ch. D. 589 ; 49 L. J. Ch. 166 ; 41 L. T. 724 48,58 Griffin v. Allen, 11 Ch. D. 913 ; 28 W. E. 10 . . . . 140 Grills V. Dillon, 2 Ch. D. 325 ; 45 L. J. Ch. 432 ; 34 L. T. 781 ; 24 W. E. 481 144 H. V. H., 1 Ch. D. 276 ; 45 L. J. Ch. 749 ; 24 W. E. 317 . . 130 Haldane v. Eckford, W. N. 79, p. 80 156 Hall V. Eve, 4 Ch. D. 341 ; 46 L. J. Ch. 145 ; 35 L. T. 926 ; 25 W. R. 177 56 Hall V. Hall, 47 L. J. Ch. 680 166 Hall V. Snelling, 20 Sol. J. 312 94 Hallums v. Hills, W. N. 76, 237 ; 46 L. J. Q. B. 88 ; 24 W. E. 956 122 Hamilton v. Davies, W. N. 80, p. 82 6 Hamilton v. Johnson, 5 Q. B. D. 263 ; 49 L. J. Q. B. 155 ; 41 L.T. 461; 28 W. R. 879 124 Hancock v. Guerin, 4 Ex. D. 3 ; 27 W. R. 112 . . . . 87 Hankin v. Turner, 10 Ch. D. 372 ; 39 L. T. 285 ; 27 W. E. 20 . 143 Hanson v. Stubbs, 8 Ch. D. 154 ; 47 L. J. Ch. 671 . . . 152 Harbord v. Monk, 9 Ch. D. 616 ; 27 W. E. 164 . . . 81, 83 Hare v. Hare, W. N. 76, 44 39 Harris v. Aaron, 4 Ch. D. 749 ; 46 L. J. Ch. 488 ; 36 L. T. 43 ; 25 W. R. 353 149 Harris v. Gamble, 6 Ch. D. 748; 46 L. J. Ch. 768 . . 50, 53 TABLE OF CASES. XXlll PAGB Harris v. Gamble, 7 Ch. D. 877 ; 47 L. J. Ch. 344 ; 38 L. T. 253 34, 45, 217 Haxris V. Flemming, 13 Ch. D. 208 ; 49 L. J. Cli. 32 ; 28 W. R, 389 9 Harrison v. Cornwall Minerals Ey. Co., 16 Ct. D. 67 . . . 40 Harry v. Davey, 2 Ch. D. 421 ; 45 L. J. Oh. 697 ; 34 L. T. 842; 24 W. R. 576 . . .72 Hartley v. Owen, W. N. 76, 193 ; 34 L. T. 752 . . . 86, 91 Hastie v. Hastie, 1 Ch. D. 562 ; 45 L. J. Ch. 288 ; 34 L. T. 13 . .146 Hawksley v. Bradshaw, 5 Q. B. D. 302 ; 49 L. J. Q. B. 333 ; 42 L. T. 285 ; 28 W. R. 557 65 Heap V. Marri^, 2 Q. B. D. 630 ; 46 L. J. Q. B. 761 . . 45, 79 Hennessey & Co. v. Bohmann, Osborne & Co., W. N. 77, 14 ; 36 L. T. 51 . . . . . . . .133 Herring v. Bischoffsheim, W. N. 76, 77 . . . . 36, 43 Hetherington v. Longrigg, 10 Ch. D. 162 ; 47 L. J. Ch. 171 ; 27 W. E. 393 95 Hengh v. Chamberlain, W. N. 77, 128 ; 25 W. R. 742 . . 79 Higginbotham v. Aynsley, 3 Ch. D. 288 ; 24 W. R. 782 . . 92 Higginson v. Hall, 10 Ch. D. 235 ; 48 L. J. Ch. 250 ; 39 L. T. 603 ; 27 W. R. 469 88 Highton V. Treheme, W. N. 78, p. 227: 48 L. J. Ex. 167 ; 39 L. T. 411 ; 27 W. R. 245 141, 142 Hillman v. Mayhew, 24 W. R. 485 48 Hillman v. Mayhew, 1 Ex. D. 132 ; 45 L. J. Ex. 334 ; 34 L. T. 256 ; 24 W. R. 435 21, 153 Hill's Exors. v. Managers of Metropolitan Asylum District, W. N. 80, p. 98 ; 49 L. J. Q. B. 668 ; 43 L. T. 462 ; 28 W. R. 664 147 Hoch ■;;. Boor, 49 L. J. Q. B. 655 ; 43 L. T. 425 . . .118 Hodges V. Hodges, 2 Ch. D. 112 ; 45 L. J. Ch. 750 ; 24 W. R. 293 67, 68 Hodson V. Mochi, 8 Ch. D. 569 ; 47 L. J. Ch. 604 ; 38 L. T, 635 ; 26 W. R. 590 50 Holloway v. York, 2 Ex. D. 333 ; 25 W. R. 403 . . 21, 48, 153 Holloway v. York, W. N. 77, 112 ; 25 W. R. 627 . . . 48 Honduras Inter-oceanic Co. v. Lefevre & Tucker, 2 Ex. D. 301 ; 46 L. J. Ex. 391 ; 36 L. T. 46 ; 25 W. R. 310 . . 25, 72 Horrocks v. Rigby, 38 L. T. 782 ; 26 W. R. 714 . . . 49 Horwell v. General Omnibus Co., 2 Ex. D. 365 ; 46 L. J. Ex. 700 ; 36 L. T. 637 ; 25 W. R. 610 . . . . 53, 75 XXIV TABLE OF CASES. PAGE Hoskin's Trusts, Re, 6 Ch. D. 281; 46 L. J. Ch. 817; 25 W. E. 779 148, 176 Huggons V. Tweed, 10 Ch. D. 359; 40 L. T. 284 ; 27 W. R. 495 50 Humphreys «. Edwards, W. N. 75, 208 ; 45 L. J. Ch. 112 . 21, 153 Hunt V. City of London Real Property Co., 3 Q. B. D. 19 ; 47 L. J. Ch. 51 ; 37 L. T. 344 ; 26 W. R. 37 . . 112,122 Hunter v. Hunter, W. N. 76, 138 ; 24 W. R. 504, 527 . 139, 148 Hntchins and Romer, Ex parte, W. N. 79, p. 99 . . . . 144 Hutchinson v. "Ward, 6 Ch. D. 692 ; 36 L. T. 178; 25 W. R. 452 161, 165 Hutley, Ee,l Ch. D. 11 ; 45 L. J. Ch. 79 ; 33 L. T. 337 . . 151 Hyam ^). Terry, 29 W. R. 32 145 Hyde v. Warden, 1 Ex. D. 309 ; 25 W. R. 65 . . . . 131 Imperial Land Co. of Marseilles, Be, W. N. 77, pp. 236, 244 101 International Financial Society v. City of Moscow Gas Co., 7 Ch. D. 241 ; 47 L. J. Ch. 258 ; 37 L. T. 736 ; 26 W. R. 272 142 Irlam v. Irlam, 2 Ch. D. 608 ; 24 W. R. 292 . . . 161, 162 Isaacs, Ex parte, 9 Ch. D. 271 ; 10 Ch. D. 1 ; 47 L. J. Bkcy. Ill ; a9L. T. 520; 27W. R., 297 143 Jackson v. Mawby, 1 Ch. D. 86 ; 45 L. J. Ch. 53 ; 24 W. R. 92 166 Jackson v. North Eastern Ry. Co., 5 Ch. D. 844 ; 46 L. J. Ch. 723 ; 36 L. T. 779 ; 25 W. R. 518 . . . . 72, 155, 156 James v. Crow, 7 Ch. D. 410 ; 47 L. J. Ch. 200 ; 37 L. T. 749 ; 26 W. R. 236 114 Jenkins v. Davies, 1 Ch. D. 696' ; 24 W. R. 690 . . . . 96 Johns V. James, 13 Ch. D. 370 83 Johnson v. Burgess, 47 L. J. Ch. 552 2, 24 Johnson v. Palmer, 4 C. P. D. 258 2 77 Johnson v. Smith, 36 L. T. 741 ; 25 W. R. 539 . . . . 87 Johnson v. Whitehead, W. N. 76, 10 14 Jones V. Baxter, 5 Ex. D. 275 ; 28 W. R. 817 . . 122, 123 Jones V. ChenneU, 8 Ch. D. 492 ; 47 L. J. Ch. 583 ; 38 L. T. 494 ; 26 W. R. 595 . . . .18, 42, 146, 149, 176, 192 Jones V. Monte Video Gas Co., 5 Q. B. D. 556 ; 49 L. J. Q. B. 627 ; 42 L. T. 639 ; 28 W. R. 758 .... . 89 Judd V. Green, 4 Ch. D. 784 ; 46 L. J. Ch. 257 ; 35 L. T. 873 ; 25 W. R. 293 ! 144 Justice V. Mersey Steel and Iron Co., 24 W. R. 199 . . i4g TABLE OF CASES. XXV PAGE Keatb V. Phillips, W. N. 78, p. 186 2, 74 KeUy V. Byles, 13 Ch. D. 682 ; 49 L. J. Ch. 181 ; 42 L. T. 338 ; 28W. R585 147 Khedive, The, 5 P. D. 1 ; 28 "W. R 364 145 King V. Corke, 1 Ch. D. 57 ; 45 L. J. Ch. 190 ; 33 L. T. 375 ; 24 W. R. 23 77 King V. Davenport, 4 Q. B. D. 402 ; 48 L. J. Q. B. 606 ; 27 W. fi. 798 92, 179 King V. Sandeman, 38 L. T. 461 ; 26 W. E. 569 . . . . 115 Kingsman v. Kingsman, 6 Q. B. D. 122 ; 50 L. J. Q. B. 81 ; 29 W. R. 207 29 Kitching v. Kitching, W. N. 76, 225 ; 24 W. E. 901 . . . 23 Knatchbiill v. Fowle, 1 Ch. D. 604 ; 24 "W. R. 629 . . . 97 Krehl v. Burrell, 10 Ch. D. 420 ; 48 L. J. Ch. 252 ; 27 W. E. 234 116, 123, 141 Laikd v. Briggs, 16 Ch. D. 440; 50 L. J. Ch. 260; 43 L. T. 632 ; 29 W. R. 197 77 Lancaster Banking Co. v. Cooper, 9 Ch. D. 594 ; 27 W. R. 164 72 Landore Siemens Steel Co., Be, 10 Ch. D. 489 ; 40 L. T. 35 ; 27 W. E. 304 152 Langridge v. Campbell, 2 Ex. D. 281 ; 46 L. J. Ex. 277 ; 36 L. T. 64 ; 25 W. E. 351 65 Large v. Large, W. N. 77, 198 2, 77 LasceUes ». Butt, 2 Ch. D. 588 ; 35 L. T. 122 ; W. N. 76, 166 ; 24 W. R 659 110, 119 Lauretta, The, 4 P. D. 25 ; 48 L. J. P. D. 55 ; 40 L. T. 444 ; 27 W. R 902 138 Leadley v. Sykes, W. N. 75, 252 147 Lees V. Patterson, 7 Ch. D. 866 ; 26 W. R. 399 .. . 48 Leigh V. Brooks, 5 Ch. D. 592 ; 46 L. J. Ch. 344 ; 25 W. R. 401 110, 118 Lewis V. Nobbs, 8 Ch. D. 591 ; 47 L. J. Ch. 662 ; 26 W. R 631 29 Leyman v. Latimer, 3 Ex D. 352 ; 47 L. J. Ex. 470 ; 26 W. R. 305 67 Little's Case, 8 Ch. D. 806 137 Litton V. Litton, 3 Ch. D. 793 ; 46 L. J. Ch. 64 ; 24 W. R. 962 . 96, 106 Lloyd V. David Lloyd & Co., 26 W. R. 572 . . . . 18 Lloyd V. Dimmack, 7 Ch. D. 398 ; 38 L. T. 173 ; 26 W. E. 458 . 26, 54 Lloyd V. Jones, 7 Ch. D. 390 ; 47 L. J. Ch. 470 ; 37 L. T. 524, 26 W. E. 262 42, 104, 106, 112, 114, 151 XXVI TABLE OF CASES. PAGE London and Katierine Docks Co. v. Metropolitan Ey. Co., "W. N. 76, 272 ; 35 L. T. 733 56 London and Provincial Marine Insurance Co. v. Davies, 5 Ch. D. 775 ; 37 L. T. 67 ; 25 W. R. 876 . • • • 81 Londonderry v. Bhoswydol Lead Mining Co., W. N. 79, p. 136 72 Long V. Croasley, 13 Ch. D. 388 ; 49 L. J. Ch. 168 ; 41 L. T. 793 ; 28 W. R. 226 72 Longman v. East, 3 C. P. D. 142 ; 47 L. J. C. P. 211 ; 37 L. T. 471 ; 38 L. T. 11 ; 26 W. E. 80, 183 . 104, 117, 118, 125 Lowe V. Lowe, 10 Ch. D. 432 ; 48 L. J. Ch. 383 ; 40 L. T. 236 ; 27 W. R. 309 141 Lows, Ex parU, 7 Ch. T>. 160 ; 47 L. J. Bkcy. 24 ; 37 L. T. 583 ; 26 W. R. 229 114, 140 Lumb V. Whiteley, W. N. 77, 40 160 Lydall v. Martinson, 5 Ch. D. 780; 37 L. T. 69 ; 25 W. E. 866 115 Lyon V. Tweddell, 13 Ch. D. 375 83 MacAllistek v. Bishop of Rochester, 5 C. P. D. 194 ; 49 L. J. C. P. 443 ; 42 L. T. 481 ; 28 W. R. 584 .. . 55, 88 McAndrew v. Barker, 7 Ch. D. 701 ; 47 L. J. Ch. 340 ; 37 L. T. 810 ; 26 "W. E. 317 141 McDonald v. Carington, 4 C. P. D. 28 ; 47 L. J. C. P. 179 ; 39 L. T. 426 ; 27 W. E. 153 24, 47, 50 McDonald v. Foster, 6 Ch. D. 193 ; 37 L. T. 296 ; 25 W. E. 687 162 Machu V. O'Connor, W. N. 78, p. 144 139 McLay v. Sharp, W. N. 77, 216 51 MacPhail, Ex parte, 12 Ch. D. (132 ; 48 L. J. Ch. 415 ; 41 L. T. 338 ; 27 W. E. 525 10 MacStephens v. Carnegie, 49 L. J. Ch. 397 ; 42 L. T. 15, 309 ; 28 W. R. 385 9 Magnus Spanietu Marchant, W. N. 78, p. 214 . . . 140 Manchester, Sheffield, and Lincolnshire Ey. Co. v. Brooks, 2 Ex. D. 243 ; 46 L. J, Ex. 244 ; 36 L. T. 103 ; 25 W. E. 413 . 48 Mann v. Perry, W. N. 81, p. 4 167 Mapleson v. Masini, 5 Q. B. D. 144 ; 49 L. J. Q. B. 423 ; 42 L. T. 531 ; 28 W. E. 488 177 Mamerr. Bright, 11 Ch. D. 394 n 52,53 Marriott v. Marriott, W. N. 78, 57 ; 26 W. R. 416 . . 79, 180 Marsh v. Dunlop, 21 Sol. J. 75 26 Marsh v. Mayor of Pontefract, W. N. 76, 7 . . . . 32, 43 Martano v. Mann, 14 Ch. D. 419 ; 49 L. J. Ch. 510 ; 42 L. T. 890 29 TABLE OF CASES. XXVll PAGE Mason v. Brentini, 15 Ch. D. 287 ; 42 L. T. 726 ; 43 L. T. 557 ; 29 W. R. 126 51 Massey v. Allen, 12 Ch. D. 807 ; 48 L. J. Cli. 692 ; 28 W. E. 243 176, 177 Masters, Ex parte, 1 Ch. D. 113 ; 45 L. J. Bkoy. 18 ; 33 L. T. 613 ; 24 W. E. 113 148 Mayor of Birmingham D. Allen, W. N. 77, 190 . . 117,120 Mayor of Saltash v. Goodman, 43 L. T. 464 . . . .144 Mayor of Swansea v. Quirk, 5 C. P. D. 106 ; 49 L. J. C. P. 157 ; 41 L. T. 758 ; 28 W. R. 371 83 Meakin v. Sykes, 24 W. E. 293 94 Mellor V. Sidebotham, 5 Ch. D. 342 ; 46 L. J. Ch. 398 ; 37 L. T. 7 ; 25 W. R. 401 96 Mercier v. Cotton, 1 Q. B. D. 442 ; 46 L. J. Q. B. 184 ; 35 L. T. 79 ; 24 W. E. 566 81, 83 Mercier v. Lawrence, W. N. 78, p. 103 171 Metropolitan Board of Works v. New Eiver Co., 1 Q. B. D. 727 ; 45 L. J. Q. B. 759 ; 2 Q. B. D. 67 ; 46 L. J. Q. B. 183 ; 35 L. T. 589 ; 25 W. E. 175 38 Metropolitan Inner Circle By. Co. v. Metropolitan Ry. Co., 5 Ex. D. 196 ; 49 L. J. Ex. 505 ; 42 L. T. 590 ; 28 W. E. 506 104, 108 Meyrick v. James, W. N. 77, 120 ; 46 L. J. Ch. 579 . . 100 Michell V. Wilson, 25 W. E. 380 115 Micklethwaite v. Fletcher, 27 W. E. 793 166 Middleton v. Pollock, W. N. 76, 250 156 MiUs V. Jennings, 13 Ch. D. 639 ; 49 L. J. Ch. 209 ; 42 L. T. 169 ; 28 W. E. 549 27 Minton v. Metcalf, W. N. 77, 142 ; 46 L. J. Ch. 584 ; 36 L. T. 683 17, 42 Mirehouse v. Bamett, 47 L. J. Ch. 689 ; 26 W. E. 690 . 112, 113 MoUoy V. Kilhy, 15 Ch. D. 162; 29 W. R. 127 . . . 49, 82 M. Moxham, The, 1 P. D. 107 101 Morgans. Elford, 4 Ch. D. 352; 25 W. E. 136 . . . . 145 Morgan v. Worthington, 38 L. T. 443 . . . . 36, 66 Morton v. Miller, 3 Ch. D. 516 ; 45 L. J. Ch. 613 ; 24 W. E. 723 34, 94, 127, 134, 136 Moeeley v. Cowie, 47 L. J. Ch. 27 1 ; 38 L. T. 908 . . . 77 Motion V. King, 29 W. E. 73 157 XXVlll TABLE OF CASES. PAGE National Funds Asstjkancb Co., Be, 4 Ch. D. 305; 46 L.J. Ch. 183 ; 35 L. T. 689 ; 25 W. E. 158 . . • • 139 National Funds Assurance Co., Be, W. N. 76, 192 ; 24 W. B. 774 87 Nayler v. Blount, 27 W. E. 865 30 Naylor v. Farrer, "W. N. 78, p. 187 ; 26 W. E. 809 . . 50, 51 New Britist Investment Co. v. Peed, 3 C. P. D. 196 ; 26 W. E. 354 89 New Westminster Brewery Co. v. Hannah, 1 Ch. D. 278 ; 24 W. E. 137 97 New Westminster Brewery Co. v. Hannah, W. N. 76, p. 215 ; 24 W. R. 899 ; W. N. 77, p. 35 72 Newby v. Sharpe, 8 Ch. D. 39 ; 38 L. T. 583 ; 26 W. E. 685 . 77 Newcomen v. Coulson, 7 Ch. D. 764 ; 47 L. J. Ch. 429 ; 38 L. T. 275 62 Nixon V. Luckie, W. N. 80, p. 12 54 Noad V. Murrow, 40 L. T. 100 77 Nobels Explosives Co. v. Jones & Co., W. N. 80, p. 77 ; 42 L. T. 754 ; 28 W. E. 653 77 Noel B. Noel, 13 Ch. D. 510 ; 42 L. T. 352 ; 28 W. E. 720 . . 29 Norris v. Beasley, 2 C. P. D. 80 ; 46 L. J. C. P. 169 ; 35 L. T. 845 ; 25 W. E. 320 72 Northampton Coal Co. v. Midland Waggon Co., 7 Ch. D. 500 ; 38.L. T. 82 ; 26 W. E. 485 143 Norton v. L. & N. W. Ely. Co., 11 Ch. D. 118 ; 40 L. T. 597 ; 27 W. E. 773 . . . '. 140 Noyea v. Crawley, 10 Ch. D. 31 ; 48 L. J. Ch. 112 ; 39 L. T. 267 ; 27 W. R. 109 35, 66 Oakwbll Collieries, Be, 7 Ch. D. 706 ; 26 W. E. 577 . . 140 O'Neil V. Clason, 46 L. J. Q. B. D. 191 8 Original Hartlepool Collieries Co. v. Gibbs, 5 Ch. D. 713 ; 46 L. J. Ch. 311 ; 36 L. T. 433 47 Orr Ewings & Co. v. Johnston, 41 L. T. 467 . . . . 151 Orr Ewings & Co. Trade Marks, 26 W. R. 777 . . . . 146 Orrell Colliery v. Fire Brick Co., 12 Ch. D. 681 ; 28 W. E. 145 92 Padley v. Camphaupen, 10 Ch. D. 550 ; 48 L. Ch. 364 ; 27 W. K. 217 11 Padwick 0. Scott, 2 Ch. D. 736 ; 45 L. J. Ch. 350 ; 24 W. R. 723 24, 50 TABLE OF CASES. XXIX PAGE Pannell v. Nunn, W. N. 80, p. 148 ; 28 W. R. 940 . . . 123 Pai-aiie v. Loibl, 49 L. J. C. P. 481 ; 43 L. T. 427 . . . 64 Parham v. Vincent, W. N. 77, 249 ; 26 W. E. 94 . . . 30 Paris Skating Rink Co., 5 Ch. D. 959 ; 25 W. R. 701 . . . 156 Parsons V. Hams, 6 Ch. D. 694 ; 25 W. R. 410 . 93, 94, 95, 134 Pascoe V. RicliaJ-ds, W. N. 81, p. 11; 44 L. T. 87; 29 W. R. 330 96 Paxton V. BeU, 24 W. R. 1013 176 Peacock v. Harper, 7 Ch. D. 648 ; 47 L. J. Ch. 238 ; 38 L. T. 143 ; 26 W. E. 109 98 Pearce v. Spickett, W. N. 76, 109 94 Petar v. Lailey, W. N. 81, p. 22 105, 113 Pheysey v. Pheysey, 12 Ch. D. 305 ; 41 L. T. 607 . . . 141 PMUpps V. Philipps, 4 Q. B. t). 127 ; 48 L. J. Q. B. 135 ; 39 L. T. 556 ; 40 L. T. 815 ; 27 W. R. 436, 939 . . 32, 37, 78, 87 Phoenix Bessemer Steel Co., Be, 4 Ch. D. 108, 116 . . . 146 Phosphate Sewage Co. v. Hartmont, 2 Ch D. 811 , . . 144 Piercey v. Young, 15 Ch. D. 475 ; 42 L. T. 292 .. . Ill Pike V. Keen, W. N. 76, 36 ; 24 "W. E. 322 ; 35 L. T. 341 . . 31 Pilcher v. Hinds, 11 Ch. D. 905 ; 48 L. J. Ch. 512, 587 ; 40 L. T. 422, 832 ; 27 W. R. 619, 789 23 Pilley V. BaylLs, 5 Ch. D. 241 ; 46 L. J. Ch. 847 ; 36 L. T. 296 109, 112 Pinney v. Hunt, 6 Ch. D. 98 ; 26 W. R. 69 . . . . 21 Piper V. Piper, W. N. 76, p. 202 167 Polini V. Gray, 11 Ch. D. 741 ; 12 Ch. D. 438 ; 49 L. J. Ch. 41 ; 40 L. T. 861 ; 28 W. R. 360 144, 145 Pommerania,The, 48 L. J. P. D. 55 ; 39 L. T. 642 . . . 62 Porter v. West, W. N. 80, p. 195 ; 43 L. T. 569 .. . 151 Potter V. Cotton, 5 Ex. D. 137 ; 49 L. J. Q. B. 158 ; 41 L. T. 460 ; 28 W. R. 160 123, 141 Powell V. Jewesbury, 9 Ch. D. 34 ; 39 L. T. 213 ; 27 W. E. 142 66, 67, 78 PoweU V. Williams, 12 Ch. D. 234 ; 40 L. T. 679 ; 27 W. E. 796 105, 111, 113 Preston v. Lamont, 1 Ex. D. 361 ; 45 L. J. Ex. 797 ; 35 L. T. 341 ; 24 W, R. 928 10 Pullen V. Snelus, 48 L. J. C. P. 394 ; 40 L. T. 363 ; 27 W. E. 796 36 QuTN V. Hesson, 40 L. T. 70 50 XXX TABLE OF CASES. PAGE Batael v. Ongley, 34 L. T. 124 ^ Ealpli V. Carrick, 11 Ch. D. 873 138 Rapier v. Wright, 14 Ch. D. 638 ; 49 L. J. Ch. 402 ; 42 L. T. 866 174 Eeal and Personal Advance Co. v. McCarthy, 14 Ch. D. 188 ; 49 L. J. Ch. 615 ; 42 L. T. 48 ; 28 W. K, 418 . . . 63 Reddish, Ex parte, 5 Ch. D. 882 ; 37 L. T. 237 ; 25 W. R.741 145 Redmayne-tf. Vaughan, 24W. R. 983 42 Redondo v. Chayter, 4 Q. B. D. 453 ; 48 L. J. Q. B. 697 ; 40 L. T. 797 ; 27 W. R. 701 143 Reea ». George, 16 Ch. D. 490 ; 49 L. J. Ch. 568 . . . 191 Renshaw v. Renshaw, W. N. 80, p. 7 ; 49 L. J. Ch. 127 ; 42 L. T. 353 ; 28 W. R. 409 33, 42 RepuHic of Costa Rica v. Erlanger, 3 Ch. D. 62 ; 45 L. J. Ch. 743 ; 35 L. T. 19 ; 24 W. E. 955 . . . . 176, 177 Bepuhlic of Costa Rica v. Strousherg, 11 Ch. D. 323 ; 40 L. T. 401 ; 27 W. R. 512 87 Republic of Costa Rica v. Strousherg, 16 Ch. D. 8 ; 50 L. J. Ch. 7 ; 29 W. R. 179 173 Republic of Peru v. Weguelin, 24 W. R. 297 . . . . 145 Rhodes v. Jenkins, 7 Ch. D. 711 ; 47 L. J. Ch. 870 ; 38 L. T. 403 ; 26 W. R. 361 . 139 Richards v. Kitchen, W. N. 77, p. 128 ; 36 L. T. 730 ; 25 W. Ru 602 167 Richardson v. Ehnit, 2 C. P. D. 9 ; 36 L. T. 58 . . . 174 Richardson v. Leake, W. N. 79, p. 181 30 Roberts v. Evans, 7 Ch. D. 830 ; 47 L. J. Ch. 469 ; 38 L. T. 99 ; 26 W. R. 280 29, 73 Robertson v. Capper, W. N. 78, p. 66 ; 26 W. R. 434. . . 161 Robertson v. Howard, 3 C. P. D. 280 ; 47 L. J. C. P. 480 ; 38 L. T. 715 ; 26 W. R. 683 68 Robinson v. Chadwick, 26 W. R. 421 151 Robinson v. Robinson, W. N. 76, 154 ; 35 L. T. 337 ; 24 W. R. 675 119 Eobson V. Robson, 22 Sol. J. 70 114 Roe V. Davis, 2 Ch. D. 729 ; 24 W. R. 606 . . . . 77 Roflfey V. Miller, W. N. 75, 225 ; 24 W. R. 109 . . . . 156 Rolfe V. McLaren, 3 Ch. D. 106 ; 24 W. R. 816 . . 51, 58 Roupell V. Parsons, W. N. 76, 61 ; 34 L. T. 56 ; 24 W. R. 269 . 94 RowclifFe v. Leigh, 3 Ch. D. 292 ; 24 W. R. 782 . . . 118 Rowcliffei;. Leigh,4Ch.D.661 ; 46 L.J. Ch. 60; 25W. R. 56 88, 120 TABLE OF CASES. XXXI PAGE Kowcliffe V. Leigh, 6 Ch. D. 256 ; 37 L. T. 557 ; 25 W. E. 783 85, 88, 89 Eumsey v. Reade, 1 Ch. D. 643 ; 45 L. J. Ch. 489 ; 33 L. T. 803 ; 24 W. B. 245 95 Ruston V. Tobin, 10 Ch. D. 558 ; 40 L. T. Ill ; 27 W. E. 588 . 112 Euston V. Tobin, W. N. 80, p. 19 ; 49 L. J. Ch. 262 . 72, 73 Eutter V. Tregent, 12 Ch. U. 758 ; 48 L. J. Ch. 791 ; 41 L. T. 16; 27 W. E. 902 34,45 Saffert, Ex parte, 5 Ch. D. 365 ; 46 L. J. Bkcy. 89 ; 36 L. T. 532 ; 25 W. E. 572 140, 142 St. Nazaire Co., Re, 12 Ch. D. 88 ; 41 L. T. 110; 27 W. R. 854 77 Salt V. Cooper, 16 Ch. D. 544 ; 43 L . T. 682 . . . . 131 Saner v. Bilton, 11 Ch. D. 416 ; 48 L. J. Ch. 545 ; 40 L. T. 314 ; 27 W. E. 472 51 Sargant v. Eead, 1 Ch. D. 600 ; 45 L. J. Ch. 206 . . . 131 Saimders v. Jones, 7 Oh. D. 435 ; 47 L. J. Ch. 440 ; 37 L. T. 769 ; 26 W. E. 226 83 Savage, iJ«, 29 W. E. 348 129 SstwjeTjEx parte, iCh.B. 698 148 Saxby V. Gloucester Waggon Co., W. N. 80, p. 28 . . .118 Sceptre & Licensed Victuallers Association, Be, W. N. 79, p. 6 . 142 Scott V. Wax Candle Co., 1 Q. B. D. 404 ; 45 L. J. Q. B. 586 ; 34 L. T. 683 ; 24 W. E. 668 11 Scvdly V. Dimdonald, 8 Ch. D. 658 ; 39 L. T. 116 ; 27 W. E. 249 ... . 132 Seear v. Lawson, 16 Ch. D. 121 ; 50 L. J. Ch. 139 ; 43 L. T. 466, 716 ; 29 W. E. 45, 109 156 Shardlow v. Cotterill, W. N. 81, p. 2 . . . . 36, 66 Sharp V. Lush, 10 Ch. D. 458 ; 27 W. R. 528 . . . . 185 Shaw V. Brown, W. N. 81, p. 27 ; 50 L. J. Ch. 232 . . . 151 Shaw V. Jersey, 4 C. P. D. 120, 359 ; 28 W. E. 142 . . . 130 Sheehan v, Gt. Eastern Ely. Co., 16 Ch. D. 59 ; 50 L. J. Ch. 68 ; 43 L. T. 432 73 Shepherd v. Beane, 2 Ch. D. 223 ; 45 L. J. Ch. 429 ; 24 W. E. 363 53 Ship Constantine, The, 4 P. D. 156 ; 27 W. E. 747 . . . 144 Simpson v. Denny, 10 Ch. D. 28 ; 27 W. E. 280 ... 27 Singer Manufacturing Co. v. Loog, 11 Ch. D. 656 ; 48 L. J. Ch. 647; 40L. T. 647; 27 W. E. 903 .... 111,113 Sir Charles Napier, The, 42 L. T. 167 ; 28 W. E. 718 . . 50, 67 XXXll TABLE OF CASES. PAGE Slack V. Midland Rly. Co., 16 C!h. D. 81 ; 43 L. T. 434 ; 29 W. E. 302 il7 Sloman v. Governor and Government of New Zealand, 1 C. P. D. 563 ; 46 L. J. C. P. 185 ; 35 L. T. 454 ; 25 W. R. 86 . 7 Smith V. Berg, 36 L. T. 471 ; 25 W. E. 606 . . . . 84 Smith V. Cowell, 50 L. J. Q. B. 38 ; 29 W. E. 227 . . • 168 Smith V. Dobbin, 3 Ex. D. 338 ; 47 L. J. Ex. 65 ; 37 L. T. 383, 777 ; 26 W. E. 122 14 Smith V. Grindley, 3 Ch. D. 80 ; 35 L. T. 112 ; 24 W. E. 966 139 Smith V. North StaflPordshire Ely. Co. 44 L. T. 85 . . . 113 Smith V. Eichardson, 4 C. P. D. 112 ; 48 L. J. C. P. 140 ; 40 L. T. 256 ; 27 W. E. 230 22, 25 Smith V. Whichcord, 24 W. E. 900 154 Smyth V. Levinge, 39 L. T. 579 21, 153 Solicitor, Be A, 14 Ch. D. 152 ; 49 L. J. Ch. 295 ; 42 L. T. 310 ; 28 W. E. 529 167 Spiller V. Paris Skating Eink Co., 27 W. E. 225 . . . 101 Spratt's Patent v. Ward & Co., 11 Ch. D. 240 ; 48 L. J. Ch. 645; 40 L. T. 250; 27 W. R. 470. . . . 105, 113 Sprunt V. Pugh, 7 Ch. D. 567 ; 26 W. E. 473. . . . 169 Spnrr v. HaU, 2 Q. B. D. 615 ; 46 L. J. Q. B. 693 ; 37 L. T. 313 ; 26 W. R. 78 . 65 Stace V. Gage, 8 Ch. D. .451 ; 47 L. J. Ch. 608 ; 38 L. T. 843 ; 26 W. E. 605 27 Stahlschmidt «. WaHord, 4 Q. B. D. 217 ; 48 L. J. Q. B. 348 ; 40L. T. 194; 27 W. E. 412 63 Staples V. Young, 2 Ex. D. 324 ; 25 W. R 304 . . . 176 Steel V. Dixon, 42 L. T. 765 ; 28 W. E. 796 . . . . 52 Steuart v. Gladstone, 7 Ch. D. 394 ; 47 L. J. Ch. 154; 37 L. T. 575; 26 W. E. 277 101 Stewart v: Bank of England, W. N. 76, 263 .... 7 Stockton Iron Furnace Co., Be, 10 Ch. D. 335; 48 L. J. Ch. 417 137 Stokee V. Grant, 4 C. P. D. 25 ; 40 L. T. 36 ; 27 W. E. 397 32, 79 Stone V. Bennett, W. N. 76, 152 156 Stone V. City and County Bank, 3 C. P. D. 282 .. . 78 Storey v. Waddle, 4 Q. B. D. 289; 27 W. R 833. . .21, 153 Street v. Gover, 2 Q. B. D. 498; 46 L. J. Q. B. 582; 36 L.T. 766; 25W. E. 750 58 gtrong V. Tappin, W. N. 76, 22 83 TABLE OF CASES. XXxiii PAGE Stubbs V. Boyle, 2 Q. B. D. 124 ; 46 L. J. Q. B. 136 ; 35 L. T. 906 ; 25 W. R. 184 ' . . . 121 Stigg V. Silber, 1 Q. B. D. 362; 45 L. J. Q. B. 460 ; 34 L. T. 682 ; 24 W. R. 640 110 Sullivan v. Rivington, 28 W. R. 372 121 Sutcliffe V. James, 40 L. T. 875 ; 27 W. R. 750 . . 32, 37 Swann v. Swaim, 43 L. T. 530 29 Swansea Shipping Co. v. Duncan, 1 Q. B. D. 644 ; 45 L. J. Q. B. 638; 35 L. T. 879; 25 W. R. 233 . . . . 53, 54 S^vindell i>. Birmingham Syndicate, 3 Ch. D. 127 ; 45 L. J. Ch. 756; 35 L. T. Ill ; 24 W. R. 911 . . 112, 141, 142 Sykes v. Brook, W. N. 80, p. 187 1 18 Sykes v. Firth, W. N. 77, 38; 47 L. J. Oh. 627 . . . . 112 Sykes v. Schofield, 14 Ch. D. 629 ; 42 L. T. 822 ; 29 W. R. 68. 162 Tasmanian Main Line Rlwt. Co. v. Clark, W. N. 79, pp. 88, 106 ; 27 W. R. 677 Ill Tawell V. Slate Co., 3 Ch. D. 629 23 Taylor v. Batten, 4 Q. B. D. 85; 48 L. J. Q. B. 72 ; 39 L. T. 408 ; 27 "W. R. 106 88 Taylor v. Duckett, W. N. 75, 193 41 Taylor v. Eckersley, 2 Ch. D. 302 ; 45 L. J. Ch. 527 ; 34 L. T. 637 ; 24 W. R. 450 131 Taylor v. Grange, 15 Ch. D. 165 146 Taylor v. Oliver, 34 L. T. 902 89 Thomasi;. Elsom, 6Ch. D. 346; 25W. R. 871 . . . . 183 Thompson v. Woodfine, 38 L. T. 753 ; 26 W. R. 678 , . 51 Thorn v. Smith, W. N. 79, p. 81 ; 27 W. R. 617 . . . . 7 Thorp V. Holdsworth, 3 Ch. D. 637 ; 45 L. J. Ch. 406 . 34, 44 Tildesley u Harper, 3 Ch. D. 277 71, 73 Tildesley v. Harper, 7 Ch. D. 403 ; 47 L. J. Ch. 263 ; 38 L. T. 60 ; 26 W. R. 263 .35, 44, 96 Tildesley v. Harper, 10 Ch. D. 393 ; 48 L. J. Ch. 495 ; 39 L. T. 552 ; 27 W. R. 249 35, 78 Tilney D. Stansfield, W. N. 80, p. 77; 28W. R. 582. . . 167 Timms, Be, W. N. 78, p. 141 ; 47 L. J. Ch. 831 ; 38 L. T. 679 ; 26 W. R. 692 162 Tottenham v. Barry, 12 Ch. D. 797 ; 48 L. J. Ch. 641 ; 28 W. R. 180 10 Trail v. Jackson, 4 Ch. D. 7 ; 46 L. J. Ch. 16 ; 25 W. R. 36 140, 142 P C XXXIV TABLE OF CASES. PAGE Treleaven v. Bray, 1 Cfli. D. 176; 45 L. J. Ch. 113 ; 33 L. T. 827 ; 24 W. R. 198 ^3' ^^ Trowell „. Shenton, 8 Ch. D. 318; 47 L. J. Ch. 438; 26 W. R. 837 . 142 Turner v. Hednesford Gas Co., 3 Ex. D. 145 ; 47 L. J. Ex. 296 ; 38 L. T. 8 ; 26 W. fl. 308 49, 205 Turquand v. Fearon, 4 Q. B. 1). 280 ; 48 L. J. Q. B. 341, 703 ; 40 L. T. 191, 543 ; 27 W. E. 396 . . . - 35, 36, 72 Turquand v. "Wilson, 1 Ch. D. 85 ; 45 L. J. Ch. 104 ; 24 W. E. 56 95 Twycroft v. Grant, "W. N. 75, 201 86, 91 Twycross i).,Grant, 4 C. P. D. 40 ; 47 L. J. Q. B. 676 ; 48 I. J. Q, B. 1 ; 39 L. T. 618 ; 27 W. E. 87 . . . .155 Tyne Alkali Co. v. Lawson, W. N. 77, p. 18 ; 36 L. T. 100 . . 176 Union Bank of London v. Manby, 13 Ch. D. 238 ; 49 L. J. Ch. 106 ; 28 W. E. 23 81, 87 United Kingdom Telegraph Co., iJsj 29 W. E. 332 . . .152 Usill v. Brearley, 3 C. P. D. 206 ; 38 L. T. 249 . . . . 143 Val db Teavers Paving Co. v. London Tramways Co., 48 L. J. C. P. 312 ; 40 L. T. 133 70, 72 Vale V. Oppert, 5 Ch. D. 633 ; 25 W. E. 610 . . . . 144 Vallance v. -Birmingham and Midland Land Investment Com- pany, 2 Ch. D. 369 ; 24 W. E. 454 71 Vavasseur v, Krupp, 15 Ch. D. 474 47, 62 Vermvnk.1). Edwards, 29 W. E. 189 89 Viney, Ex ■parte, 4 Ch. D. 794 ; 46 L. J. Bkcy. 80 ; 36 L. T. 43 ; 25 W. E. 364 140, 142 Waddell v. Bloekley, 10 Ch. D. 416 ; 40 L. T. 286 ; 27 W. E. 233 124, 139 Wakelee v. Davis, 25 W. R 60 35, 66 Walker v. BaKour, 25 W. E. 511 ' 5.5 Walker «. Blackmore, W. N. 76, 112 156 Walker v. Eobinson, W. N. 75, p. 245 ; 24 W. E. 137 ; 33 L.T. 779 160 Wallis 11. Hepburn, 3 Q. B. D, 84 92 179 Wallis V. Lichfield, W. N. 76, 130 ' . ' 117 Ward V. Pilley, 5 Q. B. D. 427 ; 49 L. J. Q. B. 705 ; 43 L T. 301 ; 28 W. E. 937 llg TAJ3LE OF CASES. XXXV PAGE Wam«r v. Mosses, le CB. D. 100 ; 50 L. J. Ch. 28 ; 43 L. T. 401 ; 29 W. E. 201 97,101,102 Warner r. Murdoch, 4^ Ch. D. 750; 46 L. J. Ch. 121 ; 35 L. T. 748.; 25 W. R. 207 109, 112 Wai-ner v. Twining, 24 W. E. SSff . . . . 53, 55 Watson.'!!. Cave, W. N. 81, p. 24;. 44 L. T. 117 . . . . 140 Watson V. Hawkins, 24 W. E; 884 66 Watson V. Eodwell, 3 Ch. D-. 380.; 45. L. J. Ch. 744 ; 35 L. T. 86 ; 24 W. E. 1009 32, 79 Watt V. Barnett, 3 Q. B. D.. 183; 363-; 47 L. J. Q. B\ 329 ; 38 L. T. 63, 903; 26 W. E. 400, 745 6,94 Webb v: East, 5.Ex. D. 23," 108 ; 49 L. J. Q. B. 250'; 41 L.. T. 715; 28 W. E. 229, 336 91 Webb V. Mansell, 2 Q. B. D-. 117 ; 25 W. E. 389' . . .140 Webster V. Whewall, 15 Ch. D. 120; 42 L, T. 868: 28W.. E. 951 . 8t, 90 Wedderbum v. Pickering, 13 Ch. D. 769-; 41 L. T. 523 ; 28. W. E.. 239 113 Welsh Steam. Coal Collieries Co..-!). Gaskell, 36 L. T. 352 . . 89' West V. Dewnman, W. N-. 79j p.. 13, 84 ; 39^ L. T. 666 ; 27 W. R 355 152 Westv. White,, 4 Ch. D. 631; 46 L. J. Ch. 333; 36 L. T. 96;. 25 W. E. 34a 105, 111, lia Westmant). Aktiebolaget, &c., 1 Ex. D. 237 .... 11 Weston's Case, 10' Ch. D. 579; 48 L. J. Ch-. 425; 40 L.. T. 43; 27 W. E. 310 146 Whetstone v. Dewis, 1 Ch. D. 99; 45. L. J. Ch. 49; 33 L. T. 501 ; 24 W. E. 93 23 Whistler v. Hancock, 3 Q. B. D. 83 ; 47 L. J. Q. B. 152 ; 37 L. T. 639; 26 W. E. 211 92,17.9 Whitaker v. Thurston, W. N. 76, 232 .... 33, 136. White «. Bromige, W. N. 78,28; 26 W. E..312 . . . 69 White V. Witt, 5 Ch.- D. 589; 46 L. J. Ch. 560; 36 L. T. 1.23; 25 W. E. 435 141 Widgery v. Tepper, 6 Ch. D. 364; 37 L. T. 297.; 25 W. E. 872 172 Willcock V. Terrell, 3 Ex. D. 323 ; 39 L. T. 84 . . .169 Williams v. Cardwell, W, N. 77,, p. 140 ;. 25 W. E. 646 . . 94. Williamson v. h. & N. W. Ely. Co.,. 12 Ch. D; 787; 48 L. ,J. Ch. 559 ; 27 W. E. 724 . . . . 32, 3 ', 56, 79' WUlis V. Earl-How«, 43 L. T: 375 ; 29 W. E. 70 . ■ . . 66- Wilmott V. Young, 29 W. R. 413 125 XXXVl TABLE OF CASES. PAGE Wilson V. Church, 9 Ch. D. 552 ; 48 L. J . Ch. 690 ; 39 L. T. 413 73, 82 Wilson^;. Church, 11 Ch.D. 576; 27 W. K. 843 . . .145 Wilson V. Church, 12 Ch. D. 454 ; 28 W. R. 284 . . . 145 Wilson V. Smith, 2 Ch. D. 67; 45 L. J. Ch. 292; 34 L. T. 471 ; 24W. E. 421 143,144 Winfleld v. Schoolbred, W. N. 80, p. 192 . . . . 97, 101 Win^ove v. Thompson, 11 Ch. D. 419 ; 27 W. B. 910 . . 157 Winterfield v. Bradnum, 3 Q. B. D. 324; 47 L, J. Q. B. 270; 26 W. R. 253 . . . 177 Witham v. Vane, 49 L. J. Ch. 242; 41 L. T. 729; 42 L. T. 686 ; 28 W. R. 276, 812 55 Witt V. Corcoran, 2 Ch. D. 69 ; 45 L. J. Ch. 603; 34 L. T. 550; 24 W. R. 501 . 149 Bond, W. N. 6 . 85, 89 . 121 47 L. J. Ch. . . . Ill . Ill . . 10 Wolverhampton and Staffordshire Banking Co. v. 81, p. 6; 43 L.T. 721 .... Wood V. Anglo-Italian Bank, 34 L. T. 255 . Wood V. Barnicot, W. N. 78, 25, 36 . Wood & Ivery, Limd. v. Hamblett, 6 Ch. D. 113 113 Wood V. Kay, W. N. 79, p. 206 .. . Wood V. M'lnnes, 4 C. P. D. 67; 27 W. R. 49 Wood V. Oliver, W. N. 80, p. 51 186 Worraker v. Pryor, 2 Ch. D. 109 ; 45 L. J. Ch. 273; 24 W. R. 269 30 Wright V. CliflFord, W. N. 78, 38; 47 L. J. Ch. 543; 26 W. R. 369 115 Wright V. Redgrave, 11 Ch. D. 24 ; 40 L. T. 206 ; 27 W. R. 562 131 Wright V. Swindon, Marlborough, & Andover Ry. Co., 4 Ch. D. 164; 46 L. J. Ch. 199 93,155 Wye Valley Ry. Co. v. Hawes, 16 Ch. D. 489; 50 L. J. Ch. 75, 222; 43 L. T. 715; 29 W. R. 120, 177 . . . . 53 Wymer v. Dodds, 11 Ch. D. 436; 48 L. J. Ch. 568; 40 L. T. 420; 27 W. R. 675 71 Yeatman v. Snow, 42 L. T. 502; 28 W. R. 574 . . . . 42 Yorkshire Waggon Co. ■;;. Newport & Abercarne Coal Co., 5 Q. B. D. 268; 49 L. J. Q. B. 527; 42 L. T. 367; 28 W. R. 505 ... 55 Young V. Brassey, 1 Ch. D. 277; 45 L. J. Ch. 142; 24 W. R. 110 11,82 TABLE OF JUDICATURE ORDERS. PAGE PAQE Order II. (Writ of Summons. ) Order XV. (AppKcation for Ac- r. 1 1 count.) r. 4 2 rr. 1, 2 ... ...18,19 r. 8 1 Order XVI. (Parties.) Order III. (Indorsement of Claim.) r. 1 ... ... 25 rr. 1, 2 1 1.2 ... 70 r. 6 42 .. 3 ... 25 rr. 4, 8 2 rr. 4, 5 ... ... 26 Order IV. (Indorsement of Address.) X. 6 ... 25 rr. 1,2,3 3 »•. 7 ... 27 Order V. (Issue of Writ of Sum- i-. 8 ...28,29 mons.) r. 9 ... 30 rr. 1, 2, 3, 4, 5, 6 ... 2,3 r. 9a ... 28 rr. 7, 8 4 rr. 10, 10a ...12, 30 Order VI. (Concurrent Writs.) 1-. 11 ... 27 rr. 1, 2 4 r. 12a 28 Order VII. (Disclosure by Solicitors r. 12b ... ... 188 and Plaintiff.) c. 13 ...71,73 rr. 1, 2 11 rr. 14, 15.. ... ... 73 Order VIII. (Renewal of Writ.) r. 16 ... 74 rr. 1, 2 4, 5 r. 17 ...52,74 Order IX. (Service of Writ.) r. 18 ...53,54 rr. 1, 2 6 r. 19 ...50,74 rr. 3, 4, 5, 6, 6a 7 rr. 20, 21.. ... .54 rr. 7,13 8 Order XVII. (Joinder of Causes of Order X. (Substituted Service.) 6 Action.) Order XI. (Service out of the Juris- rr. 1, 2 .. ... 22 diction.) rr. 3, 4 .. ... 23 1.1 8 rr. 5, 6, 7 ...23, 24 i. 3 9,10 rr. 8, 9 .. ... 22 1. 4 10 Order XVIII. (Actions by and r. 5 11 against Lunatics.) ... ... 29 Order XII. (Appearance.) Order XIX. (Pleadings.) rr. 1, 2, 3 ... 13, 159 r. 2 ...43, 45 r. 4 15,159 r. 3 ...47, 50 r. 5 159 rr. 4, 5 .. 32, 33, 43 rr. 6b, 8 13,14 r. 6 17, 33, 41 , 134, 135 rr. 9, 11 14 r. 7 ... 33 rr. 12, 12a 15 rr. 8, 9 .. 23, 43, 48 1. 13 14 r. 10 ... 48 rr. 14, 15 15 .. 11 ... 34 Order XIII. (Default of Appear- 1. 15 ... 37 ance.) I. 17 ...34,57 r. 1 16 r. 18 ... 35 r. 9 17 1-. 19 ... 37 XXXVIU LIST OF JUDICATURE ORDERS. FAQE Order XIX. (Pleadings.) r. 20 34 r. 21 34,56,60 r. 22 34 r 23 35 n-. 24, 25, 26, 27 ... 36 r. 28 37 1.29 33,161 r. 29a Wl Order XX. ( PleadingMatters arising pending Action.) rr. 1, 2, 3 45,59 Order XXI. (Statement of Claim.) rr. la, lb 41 l: 4 42 Order XXII.(Statement of Defence.) rr. 1,2 44 r. 4 45 r. 5 r 47, 48, 49 rr. 6, 7 49 r. 8 58 r. 9 50 r. 10 51 Order XXIII. (Discontinuance.) tr. 1, 2a ... 62, 63 1. 2 63, 109 Order XXIV. (Reply and Subse- quent Pleadings.) r. 1 56 rr. 2,3 60 Order XXV. (Close of Pleadings.) 60,61 Order XXVI. (bsues.) ,.. 105 Order XXVII. (Amendment of Pleadings.) 1.1 77,78 rr. 2, 3 76 rr. 4, 5 79 1.6 77 rr. 7, 8, 9, 10 80 Order XXVIII. (Demurrer.) 1.1 ... 66 rr. 2, 3, 4, 5 67 1. 6 68 r. 7 68,76,77 rr. 8, 9 68 rr. 10, 11,12 69 Order XXIX. ( Default of Pleading). r. 1 92 rr. 10, 11, 13 93 r. 12 61 r. 14 94 Order XXX. (Payment into Court in Satisfaction.) rr. 1, 2 64 rr. 3, 4 65 PAGE Order XXXI. (Discovery and In- spection.) r. 1 81 rr. 2, 4 82 r. 5 ... 83 rr. 6, 8, 9, 10 84 rr. 11, 12 87 r. 13 88 rr. 14, 15, 16, 17 ... 90 r. 18 91 r. 19 85,89 r. 20 85,91 rr. 21, 22 86,91 r. 23 ... 86 Order XXXII. (Admissions.) rr. 1, 2, 4 103 Order XXXIII. (Inquiries and Ac- counts.) ... ... ... 96 Order XXXIV. (Questions of Law). 1.1 38,39,40 1.2 38,110 rr. 3, 4, 6, 6 39 1. 7 38 Order XXXV. (Proceedings on District Kegistry.) 1. la 161, 162 1. 2 162 rr. 3, 4 163 rr. 5, 6, 7, 8, 9, 10 ... 164 rr. 11, 12 159,161 rr. 13, 14 161 1. 15 164 Order XXXVL (Trial) 1. 1 42, 114 r. 2 104 r. 3 104,105 rr. 4, 4a 105,106 rr. 5, 6 110 1. 8 105 rr. 9, 10 106 1. 10a 107,108 rr. 11, 12 106 r. 13 107 rr. 14, 15, 17 108 rr. 18, 19 114 rr. 20, 21 115 rr. 22a, 23 116 r. 26 112,113 r. 27 111,115 rr. 29, 29a Ill rr. 29aa, 29b, 29c, 30 ... 119 rr. 31, 32, 33, 34 ... 120 Order XXXVII. (Evidence Gener- ally.) r. 1 97, 100 1- 2 98 LIST OF JUDICATURE ORDERS. XXXIX PASE Order XXXVII. (Evidence Gene- rally). X-. 3 99 1. 3a 98 rr. 3b, 3o, 3d 98, 99 1. 4 101 Order XXXVIII. (Evidence by Affidavit.) i-.l 97,98 rr. 2, 3 98 r. i 99, 100 r. 5 100 r. 6 100,104 Order XXXIX. (Motion for New Trial.) rr. 1, la 122,123 rr. 2, 3, 4 123 r. 5 124 Order XL. (Motion for Judgment.) r. 1 107,125 r. 3 125 rr. 7, 8 126 r. 9 127 1. 10 124, 126 1.11 95,96,125 Order XLI. (Entry of Judgment.) 1.1 128 rr. 2, 4 129 Order XLI A (Amendment of Judgment.) 129 Order XLII. (Execution.) rr. 1, 2, 3 166 rr. 4, 5 167 rr. 7, 8, 9 169 rr. 10, 10a, 11, 12, 13, 14 170 rr. 15, 15a 167 r. 16 170 rr. 17, 18, 19, 20, 21 ... 171 Older XLIIL (Writs of Ji. fa. and elegit.) rr. 1, 2 168 Order XLIV. (Attachment.) rr. 1, 2 167 Order XLV. (Attachment of Debts.) rr. 1,2 173 rr. 3, 4, 5, 6, 7, 8 ... 174 r. 10 175 Order XL VI. (Charging Orders and Distringas.) rr. 1, la 170,171 r. 2a 172, n. Order XLVIL (Sequestration.) r. 1 168 r. 2 166 Order XLVIIL (Writ of Posaes- Bion.) 166 PAGE Order XLIX. (Writ of DeUvery ) 167 Order L. (Change of Parties by Death, &o.) r. 1 155 r. 2 156 r. 3 155 r. 4 156 r. 5 157,158 rr. 6, 7 157 Order LI. (Transfer and Consolida- tion.) rr. 1, la ... ^ 150 r. 2 ... ... ... 152 r. 2a 161 r. 4 154 r. 3 153 r. 4 164 Order LII. (Mandamns, Injunctions, &c.) rr. 1,2,3 132 r. 4 130 r. 5 132 r. 6 133 r. 6a 184 r. 8 ... ' 167 Order LIII. (Motions and other AppUoations.) r. 1 135 rr. 3, 4 133,135 rr. 5, 6, 7, 8 134, 135, 136 Order LIV. (Applications at Cham- bers.) 1.1 135 rr. 2, 2a 11,163 Order LV. (Costs.) ... 176,177 r. 1 176 l: 2 143,176 r. 3 177 Order LVIL (Time.) 178, 179 Order LVIII. (Appeals.) r. 2 137 rr. 3, 4 137,138 r. 5 ... 145, 146, 148 r. 5a 148 rr. 6, 7 138 r. 8 139 1. 10 143 rr. 11, 12 147 1.15 ... 140,141,142,143 rr. 16, 17 144 Order LIX. (Error in Judgment.) r. 2 77 ADDENDA ET ERRATA. Page 1, n. (c), substitute for present note, The appointment of Mr. Justice !Fry as the successor of Vice-Chancellor Malins enables the plaintiff to assign his action to Mr. Justice Fry in the first instance. „ 8, n. [I), add, But see Halting! v. Harley, W. N. 81, p. 39 ; 29 W. K. iHS. ,, 37, line 6 from bottom, note, Danfmd v. M'AnvUy, W. N. 81, p. 43 ; 29 W. K. 437. „ 47, n. (c), add, But see BeddaU v. Maitland, W. N. 81, p. 33. „ 53, n. (A), Wye Valley Ry. Co, v, Mawes is now reported ii; 16 Ch. D. 489. „ „ (i), add, Schneider v. BaU, 44 L. T. 142. „ 77, n. {d), add. But see Conybeare v. Zemis, W. N. 81, p. 31 ; 29 W. B. 391. „ 89, n. iq), for 26 L. T. 352 read 36 L. T. 352. „ 98, n. (e), Gilbert v. Comedy Opera Co. is now reported in 16 Ch. D. 594. „ 104, n. (a), for 5 C. P. D. 196 read 5 Ex. D. 196. „ 118, li. (I), for 49 li. J. Q. B. 665 read 49 L. .J. Q. B. 655. „ 119, u. (q), for 2 Ch. D. 533 read 2 Ch. D. 588. „ 123, n. (/), for 24 W. K. 74 read 24 W. R. 7f 4. „ 131, n. (c). Salt v. Cooper is now reported in 16 Ch. D. 544. „ 142, n. ip), for 7 Ch. D. 211 read 7 Ch. D. 241. „ 143, n. (s), for 2 Ch. J). 37 rcod 2 Ch. D. 67. A COXCISE TREATISE ON THE rHACTICE AND PROCEDURE IN CHANCERY ACTIONS. CHAPTER I. ISSUE OF WRIT. Every action must be commenced by the issue of a Order 2, r. i. Action to be Wnt 01 summons (a). begun by writ. The writ must be endorsed with a brief statement of Order 2, rr. i, the nature of the plaintiffs claim (&), and must specify writ, the division of the Court, and the name- of the Judge, to which the action is to be assigned (c), and must be dated the day of issue, and tested in the name of the Lord Chancellor, or, if that office is vacant, in the name of the Lord Chief Justice of England. The endorsement of claim, which must be made before Order 3, rr. i, the writ is issued, need not give the precise grounds of the ment of wiit. plaintiffs claim, or the precise relief which he desires, and (a) For fonn of writ, see App. (c) No action can be assigned No. I. by the plaintiil to Mr. Justice (6) For forms of endorsement. Fry. see App. Nos. 2 — 10. 2 ISSUE OF WRIT. may be amended, by leave of the Court or the Judge in Chambers, so as to embrace other causes of action. When the statement of claim has been delivered it becomes unnecessary to amend the endorsement of the writ (d). Order 2, t. i. j^ -jpxit for service out of the jurisdiction, or of which Service out of _ . '• 2. * •' _ _ _ 3. Writ issued defendant neither resides nor carries on business within out of District Registry to the district, state that he may appear either in the name place District Registry or in London ; but if the defendant ance. resides, or carries on business, within the district, it must state that he must appear in the District Registry. The writ must be prepared by the plaintiff or his Order 5, rr. .^i, 6. Writ to be solicitor, and may be written or printed, or partly prepared hy . , , . , plaintiff, and written and partly prmted ; when prepared, it must be sealed, sealed by one of the Clerks of the Writ Appearance , and Judgment Department of the Central Office, or by the District Registrar, and will then be deemed to be (A) The rules assume that, ploy a solicitor who carries on ■where the plaintiff issues a writ business within the district ; or out of a District ilegistry, he will, that his solicitor will employ an if he does not sue in person, em- agent. B 2 4 ISSUE OF WRIT. rr. 7, 8. Copy issued. When the writ is presented for sealing, a of writ to be filed. copy signed by the plaintiff or his solicitor must he left with the Clerk of the aboVe department of the Central Office, or District Registrar, which will be filed by him, and an entry of filing made in the cause book, the action being distinguished by the date of the year, a letter and number, and also, if the writ is issued out of a District Eegistry, with the name of the particular Registry. Order 6, rr. 1, The plaintiff may, while the original writ continues 2. Issue of . . . , . concurrent in force, issue One or more concurrent writs, bearing the writs. same date as the original writ, and sealed by one of the Clerks of the Writ Appearance and Judgment Depart- ment of the Central Office, or by the District Registrar, with the word "concurrent," and the date of issuing the concurrent writ. The concurrent writ wiU only remain in force while the original writ does. A writ for service out of the jurisdiction, or of which notice out of the jurisdiction is intended to be given in lieu of service, may be issued concurrently with one for service within the jurisdiction (Z), and a writ for service within the jurisdiction may be issued concurrently with one for service or notice out of the jurisdiction (m). Order », i: 1. The original writ , only remains in force twelve Writ remains ip • i -n -i i ■ -iv ^ in force twelve months trom issue, but 11 the plaintitt has been unable to serve any defendant, he may, before the end of the twelve months, on application to the Judge in Chambers, (0 Leave to issue a concurrent reside in different places, and im- writ for service or notice out of mediate service of the writ is ad- the jurisdiction is necessary, ante, visable, time may be saved by the P- 2. issue of concurrent writs. (m) Where several defendants ISSUE OF WRIT. O or to the District Registrar, if tlie writ is issued out of a District Registry, obtain leave to renew the writ for six months, if he can show that reasonable efforts to effect service have been made ; and leave for further renewals may be obtained from time to time during the currency of a renewed writ (n). Where no question Leave to re- new after arises on the statute of limitations, leave to renew the expiration of writ may be given after the writ has expired (o), but not otherwise (jo). Where the writ has been lost, leave to renew cannot be granted (q). Renewal of the writ is effected by its being sealed by Order 8, r. i. . Renewal one of the Clerks of the Writ Appearance and Judg- effected by ment Department of the Central OflBce, or by the Dis- ^^ "^' trict Registrar, with the date of renewal, on production of a memorandum requiring him to do so (r). When renewed the writ will operate in bar of the statute of limitations, and be available for all other pui-poses from the date of issue of the original writ ; the fact of r. 2. Evidence of renewal. renewal and the date of the commencement of the action being sufficiently evidenced by its being properly sealed. («) The usual course, where (p) Doyle v. Kaufman, 3 Q. B. service cannot be effected, is to D. 7, 340. obtain an order for substituted (?) Davies v. Garland,! Q.B.T). service. .250. (o) ^2/re V. CoK, W.N. 77, p. 38; (r) For form of memorandum, 46 L. J. Ch. 316. see App. No. 13. CHAPTER II. SERVICE OP WRIT. Order 9, r. 2. Substituted service ; Order 9, rr. 1, If the defendant, by his solicitor, agrees to accept 2. Personal service. Service and enters an appearance, service of the ■writ will be unnecessary, otherwise the writ must, where practicable, be served personally on each defendant. If the plaintiff is unable, from any cause, promptly to effect personal service of the writ on any defendant, he may, on application to the Court or the Judge in Cham- bers, obtain an order for substituted service, the appli- cation being supported by an affidavit showing the how effected, grounds on which it is made. Leave has been granted to effect substituted service by leaving copies of the writ at the place of business and private address of the defen- dant, and sending a copy by post to him at each address(a), or by leaving copies of the writ at his office and at his lodgings (J\ or with his wife (c) or relations {d), or with his former solicitors, and at his last known address (e), (a) Capes v. Brewer, W. N. 75, p. 193 ; 24 W. B. 40. (b) Cook V. Bey, 2 Ch. D. 219 ; Crane v. JuUion, 2 Ch. D. 220 ; I/amilton v. Davies, W. N. 80, p. 82. (c) Banh of WhiteJmven v. Thompson, W. N. 77, p. 4P. {d) Wolverhampton and Stafford- shire Backing Co. v. Bond, W. N. 81, p. 6. (e) Rafael v. Ongley, 34 L. T. 124; Dymmd v. Croft, 24 W. E. 842 ; but see Watt \. Bamett, 3 Q. B. D. 183, 363, as to setting aside judgment on default, where no knowledge of the action has reached the defendant. SERVICE OF WEIT. 7 and advertising in the Times and London Gazette. Per- sons who from their status cannot be served with a writ, cannot be reached by means of substituted service (/). Where recourse is had to advertisement, the time runs from the service of the writ, or the issue of the adver- tisement, whichever happens last (g). Service on the husband will be deemed good service Order 9, r. 3. Service on on the wife, where both are defendants ; but the wife wife, may be ordered to be served with or without her hus- band. Service on the father or guardian of an infant de- Order 9, r. i. fendant, or, if there is no father or guardian, on the infant, person under whose care the infant is^ or with whom the infant resides, wiU, unless otherwise ordered, be deemed good service on the infant. Where a lunatic, or person of unsound miiid, not so Order 9, r. 5. found by inquisition, is a defendant, service on the lunatic or per- ., . n ,T , , . ,1 ^ ^ son of unsound committee oi the lunatic, or on the person under whose minj. charge the person of unsound mind is, or with whom the person of unsound mind resides, wiU, unless other- wise ordered, be deemed good service on the lunatic or person of unsound mind (h). Where partners are sued in the name of their firm. Order 9, r. 6. . . service on service on any one oi them, or on their manager at their partners. principal place of business, will be deemed good service on the firm ; and where one person, carrying on business r. 6a. On . . individual , under the name of a firm apparently consisting of more sued as a firm, than one person, is sued ia the name of the firm, service if) Sloman v. Oovemcn- mid (3) Oanc v.TitZKon, 2 Ch. D. 220. Government of New Zealand, 1 0. (A) Thorn v. Smith, W. N. 79, p. P. D. 563 ; Stewa/rt v. Bank of 81 ; s. c. nom. Than v. Smith, 27 England, W. N. 76, p. 263. W. R. 617. S SERVICE OF WEIT. on the manager at the principal place of business will be deemed good service on the person sued; Lveii though the defendant himself is out of the jurisdic- tion (h). Order 9, r. 7. Corporations, hundreds, inhabitants, societies, fellow- corporations. . ships, or other bodies of persons, corporate or otherwise, may be served in the manner provided by statute (i). Order 9, r. 13. The writ must, within three days from service, be Writ to be endorsed with endorsed with the date of service by the person serving ' it, or the plaintiff will not, in case of non-appearance to the writ, be able to proceed by default : the person making the affidavit of service must state, in his affidavit, the day on which the endorsement was made (k). If the writ is not endorsed, within three days from service, with the date of service, the plaintiff, if desirous of proceeding by default, must begin de novo by again serving the defendant (T) ; but where an order for substituted service of the writ has been made, it is not necessary to endorse the writ with the date of service (m). Order 11, r. 1. Leave tjj effect service of the writ out of the jurisdic- ■Service out of ^ the jurisdic- tion, or to give notice in lieu of service out of the juris- tion. {h) O'Neil V. Clason, 46 L. J. the Companies Act, 1862, a sum- Q. B. D. 191. mons against a company may be (i) By sect. 16 of the Common served by leaving it at their regis- Law Procedure Act, 1852, a writ tered office, or by sending it by against a corporation aggregate post to the company at such may be served on the mayor or office. other chief officer, or on the town (h) As to the form of affidavit clerk, treasurer, or secretary ; a of service, see Bustros v. Bustros, writ against the inhabitants of a 14 Ch. D. 849. hundred or like district by service (I) Dymond v. Croft, W. N. 76, on the high constable ; and a writ p. 193. against the inhabitants of any (m) Cruse v. Kuttingell, W. N. county, town, or place, not form- 75, p. 250 ; Dymond v. Croft, 3 ing part of a hundred, on some Ch. D. 512. peace officer ; and by sect. 62 of SERVICE OF WRIT. "J diction, will be given by the Court or the Judge in Chambers in the following cases, viz. : Where any part of the property to which the action ^^^° , relates is within the jurisdiction. Where any contract to which the action relates was made within the jurisdiction (n). Where the breach of any contract, wherever made, in respect of which breach the action is brought, occurred within the jurisdiction. (A breach of trust does not come within these words, and there would seem to be no provision in the rules for such a case (o).) Where any act or thing, in respect of which an in- junction, mandamus, or damages are sought, was, or is intended to be, done, or is situate, within the jurisdiction. The application for leave to serve the writ, or notice Order ii, r. 3. Application of the writ, out of the jurisdiction must be supported for leave for by an affidavit showing where the defendant is to be jurisdiction to found, and whether he is a British subject or not, and by affidavit. showing the grounds on which the application is made ; and, in the case of actions on contracts, the affi.davit must also show the amount or value of the property in dispute, or sought to be recovered, and whether, if the defendant is resident in Scotland or Ireland, there is a local court there of limited jurisdiction having jurisdiction in the matter in question, and must enable the Court or the Judge in Chambers to judge of the comparative cost and (n) As to the construction of (o) Per Bramwell, L.J., in this rule, see ffa/rris v. Plemming, CresstoeU v. Parker, 11 Ch. D. 13 Ch. D. 208 ; McStephem v. 601, 604. Carnegia, 49 L. J. Ch. 397. 10 SERVICE OF WBIT. Form of affidavit. convenience of proceedings in England or in the place where the defendant resides ; and in granting leave the Court or Judge wiU be guided by all these considera- tions (p). The affidavit in support of the application must show that there is a primd facie catise of action ; but the Court or the Judge will not aUow it to be contro- verted on an application to set aside the order (q). It is not sufficient for the affidavit to state that the con- tract was made or broken out of the jurisdiction, but the place where it was made or broken must be speci- fied (r) ; nor is it sufficient to state that a thing, ia respect of which the action is brought, is done within the jurisdiction, but the affidavit must state where it was done (s). Apphcation for the order should be to the Judge personally, and not to his chief clerk (t). Where the order having been improperly obtained in the first instance is subsequently discharged, the plaintifi" must pay to the defendant all costs occasioned by the issue of the writ (u). No objection to the propriety of the order giving leave for service out of the jurisdiction can be taken by the defence, but only by appeal from the order (x). Order 11, r. 4. The order for service, or notice, of the writ out of Time for ap- ..... , pearance. the jurisdiction wUl limit a time for the defendants appearance, in fixing which regard will be had to the place where the defendant is to be served. The order Order for service out of jurisdiction. (p) CressweU v. Pa/rker, xwgra ; Tottenham-v.Bwny, 12 Ch. D. 805 ; Ex parte McPhaU, 12 Ch. D. 632 ; Wood v.McInms, 4C. P.D. 67. (g) Great Australian Gold Mining Co. V. MaHin, S Ch. D. 1. (r) Anon, W. N. 75, p. 199. («) Ancm, W. N. 75, p. 202. (*) Tottenham v. Barry, 12 Ch. D. 805. (u) Ibid, {x) Preston v.Zamont, 1 Ex.D.361 . SERVICE OF WRIT. H may also provide for the service of interrogatories and of an ex parte injunction (y). Notice in lieu of service of the writ out of the juris- Order ii, r. 5. Notice of writ diction, (which is the course to be adopted where the out of juris- diction, defendant is a foreigner, service of the writ itself being bad (2),) must be served in the same way as writs are served ; notice must be given not only in the case of foreign individuals, but also of foreign corporations (a.) ; but an Englishwoman married to a foreigner may be served with the writ itself (6). District Registrars have no iurisdiction to grant leave Order 54, r. 2a. . . .... District for service or notice of a writ out of the jurisdiction. Registrar. Any defendant served with a writ endorsed with the Order 7, •.-■ 1. ... Authority of name of a soucitor, may demand in writmg from the solicitor. soKcitor, whether the writ was issued with his autho- rity, and if he replies in the negative all proceedings will be stayed, and no further proceedings can be taken on the writ without leave. Any defendant served with a writ in which partners. Order 7, •.: 2. n 1 • n 1 • • Disclosure of smng in the name of their firm, are plamtms, may names of demand, in writing, from the plaintiffs, or their solicitor, written the names and addresses of the persons constituting ^™*" ' the firm ; and, if the demand is not complied with, he may obtain an order staying all proceedings in the action. When the names of the persons constituting the firm have been declared, the action will proceed in the same manner, and with the same consequences, as if they had been named as plaintiffs ; but all proceed- iy) Young v. Brassey, 1 Ch. D. B. D. 404 ; Westman v. Aktiebola- 277. get, &c., 1 Ex. D. 237. (z) Padley v, Cam/phavsen, 10 (6) Bacon v. Turner, 34 L. T. Ch. D. 550. 647. (a) Scott V. Wax Ocmdle Co., 1 Q. 12 SERVICE OF WRIT. ings must, nevertheless, be continued in the name of the firm. Order 16, r. 10. Either plaintiff or defendant may, where any other Disclosures of . . . i ■ j names of part- parties to the action are partners suing or bemg sued summons. '^ the name of their firm, obtain, on application by surnmons, an order for a statement of the names of the partners, to be given and verified in such manner as the Judge may direct. 13 CHAPTER III. APPEARANCE. Except where the writ is issued out of a District Order 12, 1. 1. In London. Registry, the defendant must appear in London. Where the writ. is issued out of a District Registry, Order 12, rr. . . 2, 3. In any defendant residing or carrying on business within District the district must appear in the District Registry ; while any defendant, not residing or carrying on business within the district, may either appear in the District Registry or in London Appearance must be effected by delivering a memo- Order 12, rr. -^^ _ ■' ^- . 6b,8. Appear- randum in writing to one of the Clerks of the Writ ance to be i>i/^i effected by Appearance and Judgment Department of the Central delivery of Office, or to the District Registrar, dated the day of at Central delivery, and containing the name and place of busi- ness of the defendant's solicitor, or stating that the defendant defends in person, and in that case contain- ing the defendant's address (a). The defendant's soli- Defendant's ... address for citor, or the defendant himseK, if suing in person, service, must give, in the memorandum of appearance, an address for service within three miles of Temple Bar, where the defendant appears in London, or, where he (a) For form of memorandum of appearance, see App. No. 14. 14) APPEARANCE. appears in a District Kegistry, an address for service within the district, or the memorandum of appearance Order 12, r. 9. will not be received. In the event of a fictitious ad- address.™ dress for service being given, the plaintiff may apply to the Court or the Judge in Chambers to have the r. 11. Entry appearance set aside. The memorandum of appearance, which must state whether delivery of a statement of claim is required, will, when received by the Clerk or District Registrar, be entered by him in the cause book. Order 12, r.6b. At the time of entering appearance a duplicate of the Duplicate of memorandum to be sealed. Duplicate of iiit i i/-ii/ii memorandum memorandum must also be delivered to the Clerk of the Writ Appearance and Judgment Department of the Central Office, or District Registrar, which will be sealed by him with the official seal, showing the date of sealing, and returned to the party entering the appear- ance, and will then be a certificate of the date of appearance. Order 12, r. 6b. On the day on which the defendant enters appear- appeajaiice. ance he must give notice of his appearance to the plaintiff's solicitor, or to the plaintiff himself, if he sues in person, either by notice in writing served at the plaintiff's address for service, or by letter posted to that address, and in either case the notice must be accompanied by the sealed duplicate memorandum. The omission by the defendant of due notice of appear- ance will enable the plaintiff to proceed as in default of appearance (6). Order 12, r.i3. Where several defendants appear by the same soli- (5) Smithv. Dobbin, 3 Ex. D. 338 ; W/iiteJiead, W. N. 76, p. 10. but see and consider Johnson v. APPEARANCE. 15 citor, their names must all be contained in the same Several de- , . fendants, memorandum oi appearance. Partners sued in the name of their firm must appear Order 12, rr. 12,12a. Part- individually in their own names ; and any one person ners. carrying on business in the name of a firm, appa- rently consisting of more than one person, must appear in his own name ; but, in either case, all subsequent proceedings will continue in the name of the firm. A solicitor undertaking to enter appearance for any Order 12, r. 14. Solicitor fail- defendant, and failing to do so, becomes liable to ing to enter , appearance. attachment. A defendant may appear at any time before judg- Orderl2,r.i5. Eight of de- ment ; if he does so, however, after the eight days fendant to limited by the writ for appearance, he will not, unless time before otherwise ordered, have further time for delivering his •'" ^™™ ' defence, or for any other purpose, than if he had appeared within the proper time. Where the writ, is issued out of a District Registry, Order 12, 1. 4. . . Action to pro- and all the defendants appear there, the action will, ceed in Ee- unless any defendant requires its removal to London, fendants all proceed in the District Registry; but in all other ^P^^*'' *^^''^" cases actions will proceed in London, unless otherwise ordered (c). (c) As to the right of a de- to control this right, and also to fendant to require removal of an order actions to proceed in the action from a District Eegistry to Eegistry, notwithstanding the ap- London, and the power of the pearance of the defendant in Lon- Court or the Judge in Chambers don, see post, Chap. XLIII. 16 CHAPTER IV. PROCEEDINGS IN DEFAULT OF APPEARANCE. Order 13, r. 1. WHERE no appearaBce to the writ has beeii entered Appointment ... . .. ,. of guardian Within the time hmited lor so doing, for a defendant ad litem. , . • c , /> i • i . who IS an infant, or a person ot unsound mind not so found by inquisition, the plaintiff may apply to the Court, or the Judge in Chambers, for an order appoint- ing a guardian ad litem, by whom such defendant may appear and defend the action (a.). Order 13, r. 1. Six clear days' notice of the application for the Notice of ap- plication for appointment of a guardian ad litem must be served or left at the house of the person with whom, or under whose charge, the defendant was at the time the writ was served ; and must also, if the defendant is an infant not residing with his father or guardian, be served on, or left at the house of, the father or guardian, if any, unless notice to them is dispensed with on the hearing of the application ; but notice cannot be given till the time for the defendant's appearance has ex- pired. The application must be supported by evidence of due notice having been given, and also of the writ having been served. (a) And see generally as to the dians ad litem. Daniell's Ch. Pr., appointment and duties of guar- chap. 4, §§ 10 & 11. appointment. PROCEEDINGS IN DEFAULT OF APPEARANCE. 17 Where the defendant fails to appear within the time Order 13, r. 9 ^ Proceedings limited, the plaintiff may, on filing an affidavit of ser- on default of appearance. vice, proceed as if the defendant had appeared ; and in order 19, r. 6 such case he may deliver all pleadings in the action by nvered'by "' filing them in the Central Office, or in the District ^^^S- Registry in which the action is proceeding {b). The fact that the defendant has made default in appearance does not render the delivery of a statement of claim unnecessary (c). (b) This mode of proceeding on default of appearance applies to actions of the nature specially assigned by the Judicature Acta to the Chancery Division, post, p. 20, and to all other actions except actions for debt, liquidated de- mand, detention of goods, damages, or recovery of land. (c) Minton v. Metcalf, W. N. 77,p. 142;46L. J. Ch. 584. 18 CHAPTER V. PEOCKEDINGS ON WRIT ENDORSED WITH CLAIM FOR ACCOUNT. Order 15, 1. 1. In actions for account, such as administration and Order on . , . .™ •n ^ •. ■ summons. partnership actions, the piamtin may, it the wnt is endorsed with a claim for account, obtain an order in the form of the ordinary administration or partnership decree, on summons, unless the defendant, having duly appeared to the writ, can satisfy the Judge that there is some preliminary question to be tried. A complete foreclosure decree cannot be obtained under this rule (a), but preliminary accounts in such an action may (b). The words, " the Judge not requiring any further trial," &c., should not be inserted as a matter of course in orders under this rule (c). The fact that an order has been made under this rule does not preclude the subsequent delivery of a statement of claim (d), but it is not necessary to deliver one merely to make a case for costs, as any matter required on further con- (a) Lloyd v. David Lhyd . 289, where the Pinney v. Sunt, 6 Ch. D. 98. Court of Appeal, differently con- (4) Cannot v. Morgan, 1 Ch. D. stituted, in an exactly similar case 1, more fully reported on this to HoUoway v. York, declined to point, 45 L. J. Ch. 50. make the order. (c) HoUoway v. Torlc, 2 Ex. D. (rf) As to transfer of actions, see 333 ; HUlman v. Mayhew, 1 Ex. post, Chap. XLI. D.132 ; Smyth v. Levimge, 39 L. T. 22 CHAPTER VII. JOINDER OF DIFFERENT CAUSES OF ACTION. Order 17, 1. 1. The plaintiff may. unite in the same action, and the Plaintiff may join several Same statement of claim, several causes of action : if, causes of . n ^ p • action. however, it appears that any or such causes oi action rr. 8, 9. Sepa- cannot be conveniently tried with the rest, the Court, rate trials. t -r ^ ■ r^i i i t-p or the Judge in Chambers, may, on the appucation of the defendant, order them to be tried separately, or otherwise provide for their separate disposal, or may order the plaintiff to amend his statement of claim, or the endorsement of his writ if no statement of claim has been delivered, by excluding any of such causes of action. A claim to set aside an agreement for partner- ship may be properly joined with a claim, in the alterna- tive, for the usual partnership decree (a). To warrant joinder of several causes of action there must be identity of parties (b). Order 17, r. 2. If the plaintiff desires to join any other cause of Joinder with action for action with an action for the recovery of land, except recovery of land. claims for mesne profits, or arrears of rent, in respect of the premises claimed, or damages for breach of any con- (o.) Bagot v. Easton, 7 Ch. D. 1 ; (b) Smith v. Rickardim, 4 C. P. but see Evamv. Daiics, W. N. 78, D. 112. p. 222. JOINDER OF DIFFERENT CAUSES OF ACTION. 23 tract under which the land is held, he must, before issuing the writ, apply to the Court, or the Judge in Chambers, for leave to do so, and if he fails to do so the Court cannot afterwards rectify the error (c). Leave will be granted to join with an action for the recovery of land, a claim for the appointment of a receiver and an injunction (d), or a claim for the recovery of the deed under which the land is held (e), or a claim for the recovery of personal estate, held under the same instru- ment as the land (/). An action to establish a title to land, without a claim for possession, is not an action for the recovery of land, so as to render the leave of the Court necessary before joining with it any other cause of action (g), nor is an action for foreclosure (h). Where the plaintiff joins several causes of action in Order 19, r. 9. . statement of the same action, he must, as far as possible, state them causes of separately and distinctly in his statement of claim. Except by leave of the Court, or the Judge in Order 17, r. 3r Chambers, a claim by a trustee in bankruptcy, as such, trustee in cannot be joined with a claim by him in any other ^^ '^'^^ ''^' capacity. Claims by or against a husband and wife jointly, may Order 17, r. 4. ...,.,,.. . , ., Husband and be joined with claims by or against tnem separately ; wife ; and claims by or against executors or administrators in r. 5, executors; their representative character, with claims by or against (c) Pilcher v. Binds, 11 Ch. D. Whetstone v. Dewis, 1 Ch. D. 99. 905. d/) Oled/iiUv.Mmita;liCh.I>. {d) Cook V. Enchmarck, 2 01.1). 492, where Jessell, M.R., discussed 111 ; Allen v. Kennett, 24 W. R. at length the object of the rule, 845. and declined to follow the decision (e) Cook V. Enchmareh, 2 Ch. D. of V.-C. HaU in Whetstone v. Dewis, 111. 1 Ch. D. 99. (/) Kitchinffv.Kitchinff,W. N. (h) TaweU v. Slate Co., 3 Ch.D. 76, p. 225 ; 24 W. R. 901 ; Cook 629. V. Enchmareh, 2 Ch. D. Ill ; 24 JOINDER OF DIFFERENT CAUSES OF ACTION. them in their personal character, provided both claims have reference to the estate which they represent (i) ; r.^' and claims by co-plaintiffs jointly may be joined with separate claims by them separately against the same defendant. claims. , Order 1 7, r. 7. The Court, or the Judge in Chambers, may, if it appears or exdusioT ° *^^* *^^ several causes of action cannot be conveniently by amend- disposed of together, order them to be tried separately, or otherwise separately disposed of, or may order the plaintiff to exclude any of such causes of action by amendriient. Where the plaintiff sues only in his per- sonal character and the defendant counterclaims against him as well in a representative as in his personal capa- city, such parts of the counterclaim as claim against him in his representative capacity will be struck out (k). (i) See Padmch v. Scott, 2 Ch. the object of this rule is explained. D. 736, 743 ; Johnson v. Burr/ess, (A) McDotujM v. Carmgton, 4 47 L. J. Ch. 552 ; and McDonald C. P. D. 28. V. Carington, 4 C, P. D . 28, where 25 CHAPTER VIII. PARTIES TO AN ACTION. All persons in whom the right to relief, either Order 16, r. i. Who may be jointly, severally, or in the alternative, is alleged to co-plaintiffs, exist, may be joined as co-plaintiffs, and judgment may be given for such of them as are found entitled to re- lief, without any amendment being necessary ; but the Costs of mis- defendant, even though unsuccessful, will be entitled to his costs occasioned by the joinder of any persons who are not found to be entitled to any relief. To enable joinder of plaintiffs there must, it would seem, be identity of causes of action (a). The plaintiff may join, as defendants, all persons Order 16, rr. against whom he claims relief, whether he claims it maybeclaimed against them jointly or severally, or, being doubtful iaUy, w^hi^the from whom he is entitled to rehef, claims it against alternative. them in the alternative : thus, in a case of disputed Alternative claims, agency, he may make both principal and agent defend- ants to an action for specific performance, and ask relief against the agent personally, in case the agency is not established (&) ; or, where a trespasser on the plaintiff's (a) Smith v Riclim-dson, i C. P. (6) Honduras Inter. Oceanic Co-. D. 112. V. Z,c/cOT-e . (s) Kmgsman v. Kingsman, 6 830. Q B D. 122. (2) Sioann v. Swann, 43 L. T. \t) Nod V. Noel, 13 Ch. D. 510. 530. («) Mariano v. Mann, 14 Ch. (a) For the practice prior to the D_ 419. Judicature Acts relating to actions '{v) Lewis V. Nohbs, 8 Ch. D. by and against infants, which still ggj remains the same, see Darnell's (x) Atwood V. Chichester, 3 Q. Ch. Pr., chap. 3, s. 6, and chap. 4, B. D. 722. s- 10- 30 PABTIES TO AN ACTION. Order 16, r. 9. Body of per- sons having same interest. Order 16, rr. 10, 10a. Partners. tion, must sue by a next friend, and defend by a guardian ad litem (6). Where numerous parties have the same interest, one or more of them may sue or be sued, or may be authorised to defend, onbehalf of the whole body. Where one of several owners of a ship sues on behalf of himself and the others, the Court will not order the others to be joined as plain tififs, merely to increase the defendant's security for costs (c). In a creditor's action for ad- ministration of both real and personal estate, the writ must state that the person suing does so on behalf of himself and all other creditors (cZ), but, if the statement of claim states that this is the case, the writ need not be amended should it have omitted to state it (e). In actions for administration of personal estate only, a creditor may sue on his own behalf alone (/). Partners may sue, and be sued, in the name of their firm, as, also, may a single person carrying on business under the name of a firm, apparently consisting of more than one person {g); but, in such a case, they may be compelled, by an order of the Judge in Chambers, to furnish a statement of the names of the persons con- stituting the firm, to be given and verified as the Judge (h) For the practice prior to the Judicature Acts relating to suits by and against lunatics and per- sons of unsound mind, which stiU remains the same, see Daniell's Ch. Pr., chap. 3, o. 7, and chap, i, s. 11. (c) De Bart v. Stevenson, 1 Q. B. D. 313. (d) Worraker v. Pryor, 2 Ch. D. 109 ; Adcock v. Peters, W. N. 76, 139; Fryer v. Royle, 5 Ch. D. 540 ; Parham v. Vincent, W. N. 77, p. 249 ; 26 W. P. 94 ; Eyre v. Cox, 24 W. R 317; Eichardion v. Zeake, W. N. 79, p. 181 ; but see contra, Cooper v. Blissett, 1 Ch. D. 691, which may be regarded as overruled. (e) Syre v. Cox, 24 W. R. 317. (/) Nayler v. Slmmt, 27 W. K. 865. fer) As to possible difficulties in appljring this rule, see Ex parte Blain, 12 Ch. D. 533. PARTIES TO AN ACTION. 31 may direct, or, if plaintiffs, they may, as we have seen (/i), be required by the defendant to disclose the names of the persons constituting the firm, on pain of all proceedings in the action being stayed. An order under this nde is not an order for discovery, so as to render a party disobeying it liable to attachment under Order 31, r. 20 (i). {h) Ante, p. 11. (i) Pike v. Keen, W. N. 76, p. 36 ; 24 W. R. 322. 32- CHAPTER IX. GENERAI. RULES AS TO PLEADINGS. Order 19, r. i. All pleadings must contain as concise a statement Pleadings to . contain state- as possible of the facts on which the pleader relies, but only, and not must not state the evidence by which the facts are to be proved (a). A statement of anything except facts — as, for instance, of charges and countercharges (6), or of law (c) — is improper. In actions for the recovery of land the plaintiff must now set out his title (d), as must also a defendant who depends for his defence upon an equitable estate (e). A simple statement that the party pleading is heir-at-law without showing how he makes out his heirship has been held a sufficient statement of title (/). Order 19, r. i. Every pleading must be divided into paragraphs, Paragraphs. i . , which must be numbered consecutively, and must, so far as possible, each contain a separate allegation. (a) Sai'i/ Bros. v. Garrett, 7 Ch. (c) Stokes p. Grant, 4 C. P. D, D. 473 ; Blake v. Albion Life 25 ; WiUiawjson v. L. Ctorifce V. CoZiw, W. N. 76, (s) boAoUns V. Lord Penrhyn, 6 p. 262; 46 L. J. Q. B. 53. d2 36 GENEEAL RULES AS TO PLEADINGS. demurrer (x). Not only must the defendant say that he relies on the statute, but the facts required to show how he relies on it must be set out {y). Order ] 9, r. 24. Where the contents of a document are material, it is Document. . , . , sufficient, unless the precise words are material, simply to state its effect without setting it out at length. A reference in any pleading to an independent document, such as an affidavit in answer to interrogatories, is improper {z). Order 19, r. 25. Where it is material to allege malice, fraudulent mind. intention, knowledge, or any other condition of mind, it is sufficient to state the condition of mind as a fact, without stating the circumstances from which it is to be inferred ; and any such statement will be struck out (a). Order 19, r. 26. Where it is material to allege notice to any one of Notice. _ _ ° ■' any fact, it is sufficient, unless the form of notice is material, simply to state the notice as a fact. Order 19, r.27. Where a contract or special relation between different Contract col- i • /■ lected from persons doos not arise from an express agreement, but dence. is to be collected from a series of letters, conversations, , or circumstances, it is sufficient to state the contract or special relation as a fact, merely referring to the letters, conversations, or circumstances, without setting them out in detail ; but it must appear clearly whether the agreement is in writing or merely by parol (6). If reliance is intended to be placed on more than one [x) Catling v. King, 5 Ch. D. (z) WiUiaimon v. London -Order2i,r.ib. withstanding that the defendant has appeared and although dis- stated that he does not require its delivery, but if he ^^"^^ ^'' " does so, he may be ordered to pay the costs occasioned by its delivery, if improper or unnecessary (c). Where the defendant fails to appear, the plaintiff Order 19, r. 6. (a) For various forms of state- 1 Ch. D. 693. But see Breton ment of claim, see App. No. 16a, v. Mockett, W. N. 75, p. 255 ; 33 17a, 18a. L. T. 585 ; Boyes v. Cooh, W. N. (6) Att.-Om. V. Shrewsbury 76, p. 28 ; 33 L. T. 778, where Bridge Co., W. N. 80, p. 23 ; V.-C. Malins laid down the rule 42 L. T. 79. that a cause should not be set (c) As to the impropriety of down as short without delivering delivering a statement of claim a statement o£ claim, except in the where the cause is to be heard very plainest of cases ; and see short, see Taylor v. Duckett, W. David v. Bolton, W. N. 79, p. 86. N. 75, p. 193 ; Green v. Ooleby, 42 STATEMENT OF CLAIM. Filed on de- j^av deliver his statement of claim by filing it in the fault of -^ . appearance. Central Office, or in the District Registry where the action is proceeding, which he may do, it would seem, at any time within six weeks from filing an affidavit of service (d). Where the statement of claim has been served personally along with the writ, it need not after- wards be filed (e). Order 3, r. 6. In actions for debt or liquidated demand upon a Order 21 r 4 ' specially endorsed writ, it is sufficient to deliver, as a statement of claim, a notice that the plaintiif 's claim is in accordance with the endorsement. This rule, how- ever, only applies to specific money demands, and has no application to ordinary Chancery actions (/). In ordinary Chancery actions the plaintiff must, in every case, deliver a statement of claim, unless required not to do so by the defendant, and he cannot treat the endorsement of his writ as a pleading. The fact that an order has been made under Order 15, does not pre- clude the delivery of a statement of claim ((/). Order 36, r. 1. If the plaintiff desires to have the action tried else- where than in Middlesex, he may name the place where he wishes to have it tried, in his statement of claim, and, unless otherwise ordered, it will be tried there accordingly (h). (d) Minton v. Metcalf, W. N. 77, p. 142 ; 46 L. J. Ch. 584 ; and see ante, p. "17. (e\ Renshaw v. Renshaw, W. N. 80, p. 7 ; 49 L. J. Ch. 127. (/) Yeatman v. Snow, 42 L. T. 502. (jr) Jones V. OhenneU, 8 Oh. D. 498 ; Gatti v. Webster, 12 Ch. D. 771. {h) Redmayne v. Vaughan, 24 W. E.. 983 ; Clarke v. Cookson, 2 Ch. D. 746. But see Lloyd v. Jones, 7 Ch. D. 390, from which it w. uld seem that the plaintiff, if he desires the action tried elsewhere than in Middlesex, may specify the place for trial for the first time by his notice of trial. STATEMENT OF CLAIM. 43 The statement of claim must state specifically the 0'' be closed, as between the party joining issue and the party on whose pleading issue is joined. If the plaintiff fails to deliver a reply or demurrer. Order 29, r. 12. ^ . . By default in or any other party fails to deliver any subsequent delivering reply or ■ pleading (a) or demurrer, within the time limited for subsequent so doing, the pleadings will, thereupon, be deemed to be closed, as between the parties making default in pleading and the party to whose pleading he fails to plead; and the allegations contained in the pleading last delivered will be taken as admitted. (a) Aa, for instance, a rejoinder the defence, where fresh matter is to plaintiff's reply to a counter- introduced by it. claim, or to the plaintiff's reply to 62 CHAPTER XIX. DISCONTINUANCE. Order 23, r. 1. The plaintiff, before delivery of the statement of Before delivery of defence, or after its delivery, but before takmg any defence. , . . . , . . , other proceedings in the action, except mterlocutory applications, may, by notice in writing, discontinue his action altogether, or withdraw any part of his claim, r. 2a. Defen- without leave ; and the defendant may thereupon tax, dant may sign . . judgment for Sign judgment for, and recover his costs of the action, or of the matter withdrawn, where the action is not Discon- altogether discontinued : discontinuance or withdrawal tinuance or . in- i i c , withdrawal no wiU not, under such Circumstances, be a deience to a fresh action. Subsequent action for the same purpose. Where an injunction has been granted on an interlocutory apph- cation, and the plaintiff has given an undertaking as to damages, he will not, by discontinuing his action, be absolved from liability (a). If the plaintiff discontinues his action, any counterclaim which may have been put in goes with it, and the counterclaimant can only assert his rights in a fresh action (b). So long as the notice to discontinue is in writing its form is immaterial (c). (a) Newcomen v. CouUon, 7 Ch. D. 474. D. 764. (c) The Pommerania, 48 L. J. (i) VavasKur y. Krupp, 15 Ch. P. D. 55. DISCONTINUANCE. 63 The plaintiff, if desirous of discontinuing the whole, ^^der 23, r. i. or withdrawing a part, of his action after he has taken tmuance or withdrawal any proceedings, other than interlocutory applications, by leave, subsequent to the delivery of the defence, and the defendant, if desirous at any time of withdrawing, or Withdrawal ■1 • 111 ^ T • T /- "f defence or striking out, the whole, or part, ol his defence or coun- coimterclaim. terclaira, must apply to the Court, or the Judge in Chambers, for leave to do so. The application may be made before, or at, or even after, the trial, and leave may be granted on such terms as to costs, and as to the bringing of other actions, as the Court or Judge may think fit. An action may be discontinued pending appeal, and the appeal becomes thereupon ipso facto vacated (d). After reference to and findings by an arbitrator leave to discontinue will not be granted (e). On an application by defendant to withdraw his defence, the terms on which he seeks to withdraw should be stated in the summons (/). A cause which has been entered for trial may be Order 23, r. 2. . . Withdrawal withdrawn by consent, on production to the Eegistrar after entry for of a written consent signed by all the parties. (d) Conybeare v. Leiois, 13 Ch. Q. B. D. 217. £). 469. (/) SeaZ <£• Personal Advance Co. \e) StaMschmidt v. Walfm-d, i .. McCarthy, 14 Ch. D. 188. C4 CHAPTER XX. PAYMENT INTO COURT IN SATISFACTION OF PLAINTIFF'S CLAIM. Order 30, r. 1. Where an action is brought to recover a debt or Claim for debt • i p or damages, damages, the defendant may, at any time before, or at the time of delivering his defence, without leave, or at any later time, by leave of the Court or the Judge in Chambers, pay a sum of money into Court, in satisfac- tion of the plaintiff's claim for debt or damages (a). Where the plaintiff claims in respect of several distinct matters, the defendant may pay in generally, and need not specify how much is paid in respect of each claim (b). Order 30, r. 2. If payment into Court is made before delivery of the Notice to be given to defence, the plaintiff must be served with notice of payment, specifying the claim in respect of which the r. 1, and payment is made (c) ; and the payment into Court be pleaded in must, also, be pleaded in the defence, which must, also, defence. specify the claim in respect of which it is made. The defendant, except perhaps- in an action involving ques- (o) It would seem that this (6) Paraire v. Loibl, 49 L. J. course may be adopted, where to C P. 481. the claim for debt or damages are (c) For form of notice, see App. added other claims of a totally No. 22. different nature. PAYMENT INTO COURT. 65 tions of character, or title, or charges of fraud, may at once pay money into Court and deny the plaintiff's right to sue (cZ). Money paid into Court in satisfaction of the Order 30, r. 3. 1 • i--j^> 1 • 1 Moneys may plamtitt s claim may, unless otherwise ordered, be be paid out to paid out to the plaintiff, or to his solicitor, on his Lucitor."'^ written authority, in which latter case no verification of the plaintiff's signature need be produced, unless specially required. The plaintiff may accept the sum paid into Court, Order so, r. 4. in satisfaction of the claim in respect of which it is take money paid, within four days from receipt of notice, if payment ^thin fo^ is made before delivery of the defence, or, if payment ^oy^e'^'"" is first stated in the defence, at any time before de- livering his reply ; and the plaintiff must, thereupon, give notice of acceptance to the defendant (e). On notice of acceptance being given, the plaintiff may, if the sum paid into Court is accepted in satisfaction of the whole cause of action, tax his costs, and, unless paid within forty-eight hours, sign judgment for them when taxed ; but the Court has power to deprive the plaintiff of costs in such a case, if the money paid into Court was offered him before the action was brought (/). Unless due notice of acceptance is given, the plaintiff will not be entitled, as a matter of right, to his costs {g) ; but the Judge will still have discretion to allow them (h). (d) Berdan v. Greenwood, 3 Ex. 76, p. 21. D. 2.')1, overruling Spurr v. Hall, (g) Langridge v. Campbell, 2 Ex. 2 Q. B. D. 615 ; and see Hawksley D. 281 ; but see Buchton v. Iliggs, V. BraMiaw, 5 Q. E. D. 302. 4 Ex. D. 174. (e) For form of notice, see App. (A) Oreaves v. Plemming, i Q. B. No. 23. D. 226. (/) Broadhwst v. Willey, W. N. P F 66 CHAPTER XXL DEMURRER. Order 28, r. 1. Any plesidiBg may be de- murred to. Statute of Frauds. Statute of Limitations. Any pleading, or part of a pleading, maybe demurred to, on the ground that the claim, defence, or counter- claim, made or set up by it is not justified by the facts 4 which it alleges. The defendant is not precluded from demurring to an amended statement of claim by the fact that he has put in a defence to the original state- ment of claim (a). The Statute of Frauds cannot be raised by demurrer (6), nor is it a good ground for demun-er that the proper relief has not been asked by the prayer, provided that the pleading, or the part demurred to, shows a title to relief of some kind (c). The Statute of Limitations can be raised by demurrer in the case of real actions (d), though not, it would seem, in the case of personal actions (e). A defendant (a) Powell V. Jeioeibury, 9 Ch. D. 34. (6) Catling v. King, 5 Ch. B. 660 ; Morgan v. Worthinr/ton, 38 L. T. 443; Sha/rdlowv. CotterUl, W. N. 81, p. 2 ; and see Dawkins V. Penrhyn, 6 Ch. D. 318; 4 App. C. 51, 58. (c) Walion V. Hawkins, 24 W. E. 884. (d) Dauhina v. Lord Penrhyn, supra. (e) Wdkdee v. Dams, 25 W. R. 60 ; but see contra Noyes v. Ctwid- ley, 10 Ch. D. 31, which case, however, seems hardly reconcile- able with the dicta in Dcumlcms v. Penrhyn, both in the Court of Appeal and in the House of Lords; and see Willis v. Earl Howe, 43 L. T. 375. DEMURRER. 67 •who, on an amendment of the statement of claim, has obtained leave to amend his defence, may demur (/). The demurrer (g) must state whether it is directed Order 28, r. 2. iii 11 i ;i oi IT 1 Must show to to the whole, or to a part only, of the pleading de- what it is murred to, and must, in the latter case, distinguish the state groimd part demurred to; the demurrer must also state the" ^" ground in law on which it is founded, but the party demurring will not be limited, on the argument of the demurrer, to the ground thus stated (h). Any party may demur to part, and plead as to the Order 28, i. 4. rest, of any pleading, in which case both demurrer and demurrer combined. pleading must be combined in the same pleading. The propriety of partial demurrers is, however, more than doubtful, as they only tend to a useless expenditure of costs, a demurrer only being useful when it raises the whole question between the parties (i). Any party, before demurring, may, on satisfying the Order 28, r. 5. Party may Court, or the Judge in Chambers, that there is reason- plead and able ground for demurrer, obtain leave to plead and taneously. demur, simultaneously, to the same matter, or to plead in case his demurrer is overruled (k). The demurrer must be delivered within the time Order 28, r. 3. Time for which the party demurring has to plead. Where the delivery, time for delivering a defence is extended by order, a demurrer may be delivered within the enlarged time, unless expressly otherwise ordered (I). (/) PmeeU v. Jewesbury, 9 Ch. Jewesbury, 9 Ch. D. 34. D. 34. (i) As leave will be granted to (p) For form of demurrer, see plead at the hearing if the de- App. No. 24. murrer is overruled, post, p. 69, (h) DawHne v. Lord Penrhyn, there seems to be no oljject in 6 Ch. D. 318. applying at any earlier stage. (i) Leyman v. Latimer, 3 Ex. D. (l) Hodges v. Hodges, 2 Ch. T). 357; The Sir Charles Napier, 42 112. L. T. 189; and see Powell v. F 2 68 DEMURRER. Order 28, r. 7. Pending demurrer, the pleading demurred to can only- pending be amended by leave of the Court or the Judge in emurrer. Chambers, which will only be granted on payment of the costs of the demurrer. Order 28, r. 6. On delivery of the demurrer, it may be immediately argument. entered for argument by either party, by delivering to the Registrar a memorandum of entry {m). Order 28, r. 6. Unless the demurrer is entered for argument, and entry. notice given to the other side, within ten days from delivery, or unless an order for leave to amend is obtained, and served on the other side, within that time, the demurrer wUl be held sufl&cient, and the party whose pleading is demurred to must pay the costs of the demurrer, and the matter demurred to wUl be deemed to be struck out (n). Order 28, r. 9. Where a demurrer to the whole of a statement of demurrer to claim is allowed, and leave to amend is refused, the ment of claim, plaintiff, unless otherwise ordered (o), must pay the costs r. 8. Costa of the action ; in any other case, where a demurrer is generally. allowed, tibie party whose pleading is demurred to must, .unless oUierwise ordered, pay the costs of the de- murrer, and the matter demurred to will, as between the parties to the demurrer, be deemed to be struck out. Where the demurring party demurs simply to increase costs (p), or where the statement of claim (m;) For fonu of memorandum at once enter it, or obtain leave to of entry, see App. liTo. 25. amend. (m) As it is obviously to the (o) See Ellis v. ffouttoun, 10 interest of the party demorriiig Chi D. 246, where the demurrer that the demurrer should not be was allowed without costs, entered, the party whose pleading {p) Bodges v. Hodges, 24 W. E. is demurred to should not rely on 293 ; and see Robertson v. Howard, his entering it, but should, himself, S C. F. D. 280. DEMURRER. 69 charges gross fraud against him (q), the costs of the demurrer will be reserved, even though successful. Where the plaintiff, having obtained leave to amend on payment of the costs of a demurrer, makes a long delay in payment of th« costs, the action wiU be dis- missed (r). Where a demurrer is overruled, the demurring party Order 28, m 11 12 must, unless otherwise ordered, pay the costs of the co'sts of demurrer, but leave may be given him to plead to ovSruM. the matters demurred to ; leave to plead being granted almost as a matter of course (s). (5) Buciett V. Gover, 6 Ch. D. p. 28; 26 W. K. 312. 82. (s) £eU V. Wilkinson, W. N. 78, (r) White V. Bromige, "W. N. 78, p. 3 ; 26 W. E. 275. 70 CHAPTER XXII. AMENDMENT BY ALTERATION OF PARTIES. Order 16, r. 2. Action com- menced by wrong plaintiff. If the action has been commenced in the name of the wrong person as plaintiff, or if it is doubtful whether it has been commenced in the name of the right plain- tiffs, the Court, or the Judge in Chambers, if satisfied that the misjoinder has been occasioned by a bovM fide mistake, either of law or fact (a), may order the substi- tution, or addition, of other persons as plaintiffs, on such terms as seem just. Thus, in a suit instituted by a shareholder, on behalf of himself and the other share- holders, against the solicitors of the company, the Court ordered the company to be joined as co-plaintiffs, they having, by a mistake in law, been wrongly made de- fendants instead of plaintiffs (b). Where, however, persons entitled only to future contingent interests under a wiU, and, so, not entitled to sue in respect of the testator's estate, commenced an action for adminis- tration, it was held that this was not a bond fide mistake, and leave to add a person having a present (a) Duchett v. Gover, 6 Ch. D. p. 46 ; 40 L. T. 133. 82 ; Val de Travers Paving Co. v. (6) Dv.ckett v. Gover, supra. London Tramways Co., W, N. 79, AMENDMENT BY ALTERATION OF PARTIES. 71 interest, as plaintiff, was refused (c). If there is any doubt whether the original plaintiff ought to be plaintiff or defendant, he will, on the addition of other persons as plaintiffs, be retained as plain- tiff till the hearing, when, if there turns out to be a misjoinder, he can be ordered to be treated as a defendant {d). The Court, or the Judge in Chambers, may, at any Order 16, r. 13. . . . Adding and stage of the action, either on the application of either striking out party, or without being applied to, order the names of any persons improperly joined as plaintiffs or de- fendants to be struck out, or may order the names of any persons to be added who ought to be parties, or whose presence is necessary for the complete settlement of aU questions involved in the action. An order to amend, by substituting a particular defendant as plain- tiff, or otherwise to amend, as plaintiff may be advised, will not authorise him to strike out another defendant altogether, even though the interest of such other de- fendant may have ceased (e). A person improperly striking out joined as defendant may be struck out on his own ^^"^ '^^' application, notwithstanding that he has delivered a defence, but the order in such a case will be made without costs (/). A defendant will not be struck out against the plaintiff's wish, unless it is clear beyond doubt that he is an unnecessary party (g). The plain- Adding , parties, tiff will be allowed to add any person as defendant (c) Olowai V. HiUiard, i Ch. D. 436. ^jg (/) VaUance v. Bi/rmingham id) TUdedeu v Harper, 3 Ch. and Midland Land Investment Co., D277 2 0h. D. 369. \e) Wymer v. Doddi, 11 Ch. D. (g) Anon, W. N. 75, p. 203. 72 AMENDMENT BY ALTERATION OF PARTIES. whom he might fairly have joined as defendant origin ally (Ji), even where he only claims against him in the alternative (i) ; but an order ad. 844. (I) Lancaster Banking Co. v. (p) Be Hart, v. Stevenson, 1 Q. Cooper, 9 Ch. D. 594. B. D. 313. (m) New Westminster Brewery (g) Norris v. Beasley, 2 C. P. Co. V. Hannah, W. N. 76, p. 215 ; D. 80 ; Harry v. Bavm, 2 Ch. D. 24 W. R. 899; b. u. W. N. 77, p. 721. AMENDMENT BY ALTERATION OF PARTIES. 73 be ordered to be made a defendant at the hearing, and the plaintiff will be ordered to pay the costs occasioned by the misjoinder (r). No person can be added as a plaintiff suing without Order 16, r. 13. a next friend, or as the next friend of a plaintiff, under next friend disability, without their own consent. It is not neces- without sary, however, on the application to add a plaintiff, to <'°°^™'' prove that the person to be added consents (s). Applications to add, or strike out, parties may be 0''. (m) ffeugh v. Chamberlain, W. 380 ; but see Davy Bros. v. Ga/r- N. 77, p. 128 ; 25 W. R. 742 ; rett, 7 Ch. D. 473. Heap V. Morris, 2 Q. B. D. 630. (a) Ma/rriott v. Marriott, W. N. (x) Bagot i. Boston, 7 Ch. D. 1. 78, p. 57 ; 26 W. B. 416. 80 AMENDMENT OF PLEADINGS. Amendment posite parties can only amend their pleadings by leave to opposite of the Court or the Judge in Chambers. The delivery party to amend with- of an amended statement of claim gives no right to the defendant to amend his defence without leave, but he must choose whether he will obtain leave to amend his defence, or put in a new defence, or proceed with his original defence, by which last course he will be taken to admit the amendments in the statement of claim (6). Order 27, rr. Any party obtaining an order for leave to amend Time for must amend his pleading, and deliver it to the opposite amendment. .,.,, . .„,. , . party, within the time specified m the order, or, it no time is specified, wiljhin fourteen days from the date of the order ; if he fails to do so, the order will, at the expiration of that period, become ipso facto void, unless the time is enlarged. Order 27, r. 8. If the amendments require the insertion of more Amendments , , . , beyond than 144 words in one place, or are so numerous that to be printed, the pleading would be difficult to read if they were made in writing, the amended pleading must be printed, otherwise the amendments may be made by written alterations, and, if necessary, by interleaved additions. Order 27, r. 9. All amended pleadings must be marked with the Date of order, and amend- date of the order to amend, if any, and also with the day on which the amendment was made. (i) Boddyv. Wa.a,7 Ch. D. 164, Dwrling v. Lawrence, W. N. 77, where Jessel, M.E.., declined to p. 182 ; 46 L. J. Ch. 808. follow his previous decision in 81 CHAPTER XXIV. INTERROGATORIES. The plaintiff may interrogate the defendant, without Order 31, r. 1. 1 1 • PIT -^y plaintiff leave, at the time ot delivering his statement of claim, before close of or at any subsequent time, prior to the close of the ^ *"* '"^^' pleadings. However, in the case of common law actions Before defence it has been held that he is not entitled, as a matter of course, to interrogate the defendant before delivery of the defence (a), though in ordinary Chancery actions, interrogatories at an earlier stage are, it would seem, justifiable (b). The defendant may interrogate the plaintiff, without Order 31, 1. 1. 1 , . e T T • y ■ By defendant leave, at the time 01 delivering his statement of defence, before cioee of or at any subsequent time, prior to the close of the ^ ^^ ™^^' pleadings ; but he cannot, without leave, interrogate the same plaintiff more than once. Any party to the action may, by leave of the Court Order 31, r. l. or the Judge in Chambers, interrogate the opposite may interro- gate by leave party at any stage of the action ; even after the action at any time. has been set down (c), if the delay can be explained (d) : a defendant will not be allowed to interrogate the (a) Mercier v. Cotton, 1 Q. B. (c) London . 696. {g) Mellor v. Sidebotham, 5 Ch. D. 342 ; GUbert v. Smith, 2 Ch. D. 686, 689. (A) Tildesley v. Hwrper, 7 Ch. D. 403. (i) Litton V. Litton, 3 Ch. D. 793 ; but see contra Ptiscoe v. Sieh- ards, W. N. 81, p. 11 ; 29 W. B. 330, where Jessel, M.R, declined to follow Litton v. Litton, (Ic) Eegiatrar's Notice, W. N. 77, p. 58 (Miscellaneous) ; Morgan, p. 568 ; Wilson, p. 275 ; and see Gilbert V. Smith, 2 Ch. D. 686. (t) Ante, p. 94, and cases there cited, n. (o). (m) Where the usual adminis- tration or partnership accounts only are required, the application should be by summons under this order, or Order 15, rather than by motion under Order 40, r. 11. 97 CHAPTER XXVIII. EVIDENCE. Evidence may be taken in the action either vivd ^J^^^ ^^' ^; J- voce at the hearing, or by afiSdavit. Evidence vivd voce or by If the plaintiff desires the evidence to be taken by affidavit, affidavit, he must obtain the consent of the defendant Evidence' oijy to that course., A formal consent in writing is ne- javirbv ^ cessary (a), guardians ad litem being competent to consent, consent on behalf of infant defendants (6). A witness who has not been cross-examined on his affidavit will be allowed to supplement it, at the. hearing, by vivd voce evidence (c). Where either party finds, after an agreement for affidavit evidence has been entered into, that any of his witnesses refuse to make affidavits, he should take out a summons to be relieved from the agreement, and the Court, at the option' of the other party, will either permit the particular witness to be examined vivd voce at the trial, or discharge the agree- ment altogether, and direct all the evidence to be taken vivd voce (d). (o) New Westmimter Brewery (c) Glotiop v. JTeston and Isle- Co. V. ffmrnah, 1 Ch. D. 278. worth Local Boa/rd, W. N. 78, p. (6) KnatcAbuU v. Fowle, I Ch. 72 ; 26 W. K. 433. D. 604 ; Fryer v. Wiseman, W. N. (d) Wa/mer v. Mosses, 16 Ch. D. 76, p. 3 ; 24 W. K. 205 ; 45 L. J. 100 ; but see Winfidd v. Shoolbred, Ch. 199. W. N. 80, p. 192. 98 EVIDENCE. Order 37, r. 3d. The plaintiff must, within fourteen days from the Order 38, l-. 1. ^ ... Time for Consent of the defendant to affidavit evidence being plaiiiti£f's. obtained, file his affidavits in the Filing and Record Department of the Central Office, and deliver a list of r. 2. Time for them to the defendant or his solicitor ; and, upon the defendant's. delivery of the plaintiff's list of affidavits, the defendant will have a similar time within which to file, and de- I-. 3. Time for liver a list of, his affidavits ; and, on the delivery of the plaintiffs in reply. defendant's list of affidavits, the plaintiff must, within seven days from the expiration of the time allowed the defendant for filing his affidavits, file, and deliver to the defendant or his solicitor a list of, his affidavits in reply, which affidavits must be confined to matters strictly in reply. They need not, however, be directed merely to cutting down the defendant's evidence, but may be confirmatory of the plaintiff's evidence in chief (e). Order 38, rr. The time allowed to any party for filing his affida- Time for filing vits may be varied by agreement between the parties, or may be enlarged on application to the Judge in Chambers. Order 37, r. 2. Evidence on motion, petition, or summons, must be On motion, . petition, and taken by affidavit ; but an order may be obtained, on summons. application to the Court or the Judge in Chambers, for the attendance, for cross-examination, of the party making the affidavit (/). Order 37, r. 3a. Affidavits must be drawn up in the first person, divided into consecutively numbered paragraphs, (e) Peacock v. Harper, 7 Ch. D. (/) Unless otherwise ordered, 648 ; but see Gilbert v. Comedy the cross-examination will take OpwaCo., W.N.80, p. 198 ; 29W. placebeforeanexaminer: Darnell's B. 169. Ch. Pr. 1445. EVIDENCE. 99 confined as far as possible to distinct portions of the subject, and written or printed bookwise, and the costs of any affidavit infringing this rule will be disallowed. Affidavits must state the description and the place of Order 87, r. 3b. Address of abode of the deponent, and a note must be appended deponent, saying on whose behalf they are filed. Interlineations, alterations, or erasures in any affidavit Order 37, r. 3c. ,...,„, «. Alterations in must be authenticated by the mitials of the officer affidavit to be taking the affidavit, or, if taken at the Central Office, by initials or the stamp of the office, or it cannot be read or made use of, except by special leave of the Court or a Judge. Affidavits must be confined to a statement of facts Order 37, r. 3. Affidavits con- within the knowledge of the witness, except when fined to state- p 1 1 • c 1 /■ 1 ments within used on motion, when statements of belief, and of the knowledge of grounds for belief, will be admissible (a). If matters of ^ ' . ° ^'" Costs of im- hearsay or argument, or copies or extracts from docu- proper affidavit. ments, are unnecessarily introduced in any affidavit, the party filing it will be liable for the costs of the affidavit. An affidavit echoing the statement of claim will not, where the deponent has no personal know- ledge of the matters deposed to, be allowed to be used at the hearing, nor will the costs of it be allowed (h). If any party desires to cross-examine any of the Order 38, r. i. 1 • (V 1 • I Notice of Witnesses of the opposite party on their affidavits, he cross-exami- must, within fourteen days from the expiration of the witness on time limited for filing the plaintiffs affidavits in reply, * *^' ' unless the time is enlarged, serve notice in writing on the party by whom the affidavis are filed, requiring ig) But see and consider GilbeH (h) Anon., W. N. 76, p. ^9. V. Endean, 9 Ch. D. 269, H2 100 EVIDENCE. him to produce the witnesses for cross-examination on r. 6. Compel- their affidavits in Court at the hearinsr ; and the party ling attend- ° c j ance. required to produce the witnesses may compel their attendance, in the same way as he might compel the r. i. Affi- attendance of a witness for examination (i). Unless davit cannot be used unless the witness is produced for cross-examination, his affi- witness pro- . dueed. davit cannot be used as evidence, except by leave of the Court ; the Court will not, however, order the affi- davifto be taken off the file (k). Order 38, r. 4. The costs of producing any witniess for cross-exami- Costs of pro- . . , f, . duoing wit- nation must be borne, m the first instance, by the party producing him. Order 38, r. 6. Affidavits for use at the hearing must, when the evi- Affidavit must . nn i ■ t • i-i i ^ be printed. dence IS taken by affidavit, be printed, but the Court has power to dispense with their being printed (I). Order 38, r. 6. Notice of trial must, where the evidence is taken by Notice of trial. ~, , . , i -n i • ■, • ■, ■, amdavit, be postponed till the evidence is closed. Order 37, r. 1. Unless the parties agree to take the evidence by evidence in affidavit, it must be taken vivd voce at the hearing, but agreement to le^'Ve may, nevertheless, be obtained from the Court or contrary. ^.j^^ Judge in Chambers to prove any particular fact by affidavit, or to read the affidavit of any witness at the hearing (m), or to examine any witness, whose attend- ance in Court ought, for any reason, to be dispensed with, by interrogatories, or before a commissioner or examiner ; if, however, the other party desires the wit- ness to be produced for examination, and it appears (i) Namely, by serving them (Q Attorney-General v. Pagkam with a subpoena : Danidl's Oh. Pr. Harbour Beclamation. Co., W.N. 808. 76, p. 94. {k) Meyrick v. Jwirm, W. N. (m) But see Blactcburn Union 77, p 120 ; 46 L. J. 579. v. Broolcs, 7 Ch. D. 68. EVIDENCE. 101 that he can be produced, the Court or Judge has no power to authorise his evidence to be taken hj affi- davit. Even where the party, on whose behalf the affidavit was filed, offers to produce the witness for cross- examination on his affidavit, the Court cannot allow the affidavit to be read, if the defendant desires vivd voce examination (n). Leave to take the evidence of a witness abroad before a commissioner or special examiner wiU be refused, unless the application is made promptly and without delay (o), or unless there is an actual difficulty in procuring the witness's attendance in this country (p). The Court or the Judge in Chambers may order the Order 37, r. 4. Order for examination of any witness on oath, either before an examination officer of the Court, or before any other person, and at any place, and may order the depositions to be filed, and Depositions to . . be filed and may allow them to be given in evidence on such terms printed, as seem right ; if the depositions are intended for use at the trial, they must, unless otherwise ordered, be printed (q). The Court has power to order depositions to be filed, though taken informally (r). Where a person who had stated what she could depose to subse- quently refused to make an affidavit, she was ordered under this rule to attend in Court at the hearing of the action to be examined orally (s). It has, however, been (») Blaclcbwm Union v. Brooks, Banque Franco-Egyptiennev. Luts- 7 Ch. D. 68. cker, W. N. 79, p. 183 ; 28 W. E. (o) Stmmt V. Gladstone, 7 Ch. 133. D. 394. (q) Additional Rules of 1875, (p) Tke M. Moxham, 1 P. D. Order 1 ; Morgan, 622 ; Wilson, 107-115 ; Warner v. Mosses, 16 444. Ch. D. 100 ; but see Re Imperial (r) Bolton v. Bolton, 2 Ch. D. lamdCo. of Ma/rseiUes,'W.N. 77, p. 217. 236, 244 ; SpiUer v. Paris Skating (a) Winfield v. Shoolbred, W. N. Mnk Co., 27 W. R. 225 ; and 80, p. 192. 102 EVIDENCE. held by J'essel, M.E., that the rule only applies to taking evidence de bene esse, and not to cases where the wit- nesses are able to attend in Court (t). As a general rule, witnesses de bene esse are not to be examined ex parte (u). {t) Warner v. Mosses, 16 Ch. D. 100. («) Ibid. 103 CHAPTER XXIX. ADMISSIONS. Any party to the action may give notice to any of Order 32, 1. 1. Admitisiun of the opposite parties that he admits the truth of the the case of the other side by whole, or any part, of the case stated in their plead- notice, ings (a). Any party to the action may give notice to any Order 32, r. 2. other party to admit any document, saving all just admit docu- exceptions (6), and the party to whom the notice is ™^" given will, if he refuse or neglect to admit the docu- Omission to ments specified La the notice, be liable for the costs of ments. their proof, unless he can justify his refusal or neglect at the hearing ; on the other hand, the omission of Omission to notice to admit documents will disentitle the party admit, proving them to the costs of their proof, unless he can satisfy the taxing master that expense was saved by the omission to give notice to admit. The admission of any documents will be sufficiently Order 32, r. 4. 11 rr> T • ft !-• 1-1 IP Admission of . proved by an amdavit of the solicitor or his clerk of documents the due signature of the admissions. affidavit. (o) It may often happen that notice of admission, and thus either plaintiff or defendant dis- prevent the other side from covers, after the pleswiings are going into evidence, the costs of closed, that he cannot dispute which he would ultimately have some part of the case of the op- to be£ir. posite party on which issue is (6) For form of notice, see App. joined ; in such a case, he is No, 31. enabled by this rule to give 104 CHAPTER XXX. NOTICE OF TRIAL. Order 38, r. 6. Order 36, rr. 2, 3. Notice of trial. Judicature Act, 1875, 6. 20. Action only tried by jury where evidence is vivd voce. The plaintiff may, with his reply {a), or at any time after the close of the pleadings, or on the close of the evidence, if taken by affidavit, give notice of trial of the action to the defendant, and must specify by his notice whether the action is to be tried before a Judge, a Judge with assessors, or a Judge and jury. Though the rules specially provided for trial of the whole action before a referee, it has been decided, and is now settled law, that it cannot be so tried (b) ; it is consequently improper to give notice of trial before a referee (c). The action cannot be tried by a jury if the evidence has been taken by affidavit {d). Notice of trial before a Judge, without a jury, at the assizes, may, it would seem, be given, although the assize town has not been specified in the statement of claim as the place of trial (e). (a) It has been held in Mebro- politan Inner Circle Ry. Co. v. Me- tropolitam Ry. Co., 5 0. P. D. 196 ; and Asquith v. Molynmx, W. N. 80, p. 156; 49 L. J. Q. B. 800, that the plaintiff may give notice with his reply, though such reply does not close the pleadings. It is submit- ted, however, that in Chancery actions, at any rate, plaintiff ought not to give notice at that stage, having regard to the provisions in Order 38, r. 6, precluding notice of trial before the close of the evi- dence in case of affidavit evidence. (6) Lcmgmany. East, 3 C. P. D. 142. (c) Braginton v. Yatea, W. N. 80, p. 150. (d) Brooke v. Wigg, 8 Ch. D. 510. (e) Lhyd v. Jones, 1 Ch. D. 390, NOTICE OF TEIAL. 105 Notice of trial must state whether it is for the trial Order 36, r. 8. Notice of of the action or only of issues in the action (/). trial of issues. If the defendant desires to have the issues of fact Order 36, r. a. Bight of tried before a Judge and jury, he may, if any other defendant to mode of trial is specified in the notice of trial, give tried by jury, notice to that effect to the plaintiff, within four days from service of the notice of trial, and he will, there- upon, become primd facie entitled to have the issues of fact tried before a Judge and jury (g). The right is confined to the issues, and does not extend to the whole action (h), and the defendant cannot give notice of trial by jury of particular issues only, but his notice must extend to the issues generally (i). A notice out of Courtis sufficient, and a defendant giviug notice of motion for trial by jury will do so at his peril as to costs (k). Where the issues of fact in dispute between the Order 26. . Preparation of parties are not sufficiently defined by the pleadings, the issues. Judge may direct the parties to prepare issues, to be afterwards settled by the Judge, if the parties differ (l), or may refer it to chambers at once to settle proper issues of fact (m). If the plaintiff does not give notice of trial within Order 36, rr. six weeks from the close of the pleadings, or from the J^n by pWn- close of the evidence, if taken by affidavit, the defend- notj'e rf'^ ant may, unless the time for giving notice for trial is '"*'• enlarged, apply either to the Court, or to the Judge in {/) For form of notice, see App. 234. No. 31. (k) Ibid. (91) But see posi, p. 112, as to the [1) West v. White, i Ch. D. discretion of the Court to dispense 631 ; Ckments v. Norris, W. N. with a jury. 77, p. 248 ; 26 W. E. 94 ; and see (h) Spratis Patent v. Ward cfc Ola/rlce v. Cookson, 24 W. R. 535. Co., 11 Ch. D. 240. (m) Powell v. WUlia-ms, supra; (i) Pmvett V. WUliams, 12 Ch. D. Petar v. LaUey, W. N. 81, p. 22. 106 NOTICE OF TKIAL. Chambers (n), for an order dismissing the action for want of prosecution, or he may himself give notice of trial, specifying any of the modes of trial mentioned ahove. Where there are other defendants, a defendant, to whose defence no reply has been delivered, should, before moving to dismiss, ascertain from the plaintiff how the action stands with regard to them (o). Where the pleadings are closed, not by joinder of issue, but by default in delivering a reply, either of the above steps are open to the defendant, should the plaintiff fail to give notice of trial within six weeks (p). If any other mode of trial, than before a Judge and jury, is specified .by the defendant, the plaintiff may, within four days from service of the notice of trial, give notice that he desires to have the issues of fact tried before a Judge and jury, and will thereupon become primd facie entitled to have them so tried. Order 36, rr. Notice of trial must be given ten days before trial, 9,10,11,12. , , . Ten days' unless the opposite party agrees to accept short notice, notice of trial. . , . , in which case it need only be given four days before trial ; when given, it will be deemed notice for trial on any day, after the expiration of the notice, on which the action can come' on for trial ; or, if the action is to be tried elsewhere than in Middlesex, which, as we have seen (q), it may be, if the plaintiff names any particular (n) An application at chambers amending a prior notice, W. N. 77, being generally the best mode : p. 58 (Miscellaneous), which stated Frearson v. Loe, W. N. 77, p. 245 ; that notice of trial can only be 26 W. K. 138. given after joinder of issue. (o) Ambroise v. Evelyn, 11 Ch. (g) Ante, p. 42 ; and see Lloyd D. 769. V. Jones, 7 Ch. D. 390, as to the (p) Litton V. Litton, 3 Ch. D. power of the plaintiff to fix the 793 ; and see Registrar's Notice, place of trial by his notice of trial. W. N. 77, p. 163 (Miscellaneous), NOTICE OF TRrAL. 107 place in his statement of claim, notice of trial will be deemed to be for the first day of the next assizes at the place named. Notice of trial may be countermanded by leave of Order 36, r. 13. . Countermand- the Court or the Judge m Chambers, on such terms, as ing notice of to costs, and otherwise, as seem just, or it may be countermanded by consent. If the action is not entered for trial within six Order 36, r. „ . , , ,. .11 1 lOs,. Notice days from notice or trial, the notice will become of trial in- , . operative by inoperative. delay. Where, in consequence of the defendant having dis- Order 40, r. i. . . . Motion for pensed with the delivery of a statement of claim, no judgment in IT • T .11 • absence of pleadings have been delivered on either side, the action pleadings, must be set down on motion for judgment, it being only open to the parties to give notice of trial, where the pleadings are closed (r). (r) Eegistrar's Notice, W. N. 77, p. 58 (Miscellaneous). 108 CHAPTER XXXI. ENTRY FOR TRIAL. Order 36, r. 14. By party giving notice of trial ; by opposite party. r. 10a. Notice of trial inoperative by delay. Order 36, r. 15. Trial else- where than in London or Middlesex. Order 36, r. 17. Delivery of pleadings for use of Judge. Where the action is to be tried in London or Middlesex, the party giving notice of trial may enter it for trial on the day on which he gives notice for trial, or within the next five days ; if, however, he omits to do so on the day, or the day after, notice of trial is given, the opposite party may enter it for trial, at any time within the next four days. If the action is not entered for trial within six days from notice of trial, the notice will become inoperative {a). The action cannot be entered for trial before the close of the pleadings (6). Where the action is to be tried elsewhere than in London or Middlesex, either party may enter it for trial at any time after notice of trial is given ; but, if entered by both parties, it will be tried in the order of the plaintiffs entry. The party entering the action for trial must deliver to the Registrar, or to the Associates, if the action is entered with them, two copies of the pleadings iu the action, for the use of the Judge at the trial, which (a) In calculating the six days, it appears that the day on which notice is given must be reckoned. (6) Metropolitan Inner Cirdi Ry. Co. V. Metropolitan Ry. Co., 5 Ex. D. 196. ENTRY FOR TRIAL. 109 copies must, so far as the originals are required to be printed, be printed. If the notice of trial specifies trial by Judge and Entry of ^ ./ o action with jury, the action must be entered with the Associates, Associates. and not with the Registrar (c). If the defendant gives notice that he desires to have Adding action to Associates' the issues of fact tried before a Judge and jury, after list after entry ,,..~,, . . „.,. , for trial in the plamtifl has given notice of trial m some other Chancery manner, and has set down the action in the Chancery Division, the action will, on the request of the solicitor of either party, and on the production of a certificate that the defendant's notice was duly given, be marked in the Cause Book, " Jury trial at defendant's instance," and will, on the production of the Registrar's certifi- cate (d), be added by the Associates to their list of actions for trial (e). In no case wiU the action be tried by a Judge of the Judge of Chancery Chancery Division with a jury (/). Where the action. Division c n ■ ^ ■ 1 ■ T 1 cannot try or issues oi fact m the action, are to be tried by a action with Judge with a jury, the action should be transferred to '' the Division in which it is to be tried, from which it can again be transferred to the Chancery Division after the trial (g). The action may be withdrawn after being entered for Order 23, r. 2. trial, on producing to the Registrar a written consent withdrawn signed by the parties. conTent!*'^ ^^ (c) Registrar's Notice, W. N. 77, p. 153 (Miscellaneous). 77, p. 153 (Miscellaneous), com- (/) Warner v. Mwrdoch, 4 Ch. mented on by Malins, "V.-C, in D.760. Ptiley V. Baylii, 5 Ch. D. 241. {g) Clements v. Norris, W. N. (d) For form of certificate, see • 78, p. 4 ; and see as to transfer of App. No. 33. actions, post, Chap. XLI. (e) Registrar's Notice, W. N. 110 CHAPTER XXXII. CONTROL OF COURT OVER MODE OF TRIAL. Order 36, r. 5. WHERE neither party has given notice of trial of the Trial in other . <. p • i • i t i mode than action, or of issues of fact m the action, by a Judge that specified . . i , i , • • i i in notice. and jury, or where the action is a proper one to be heard before an Official or Special Referee, either party may apply, within four days from notice of trial being given, or within such further time as may be allowed, to the Court, or the Judge in Chambers, for an order directing trial of the action in some other mode than that specified in the notice of trial. No order will be made on the application of the person who gave the notice of trial (a), or after great delay (6). Where the case involves questions of fraud seriously affecting the defendant's character, it cannot be referred, except by his consent (c). Order 36, r. 6. The Court, or the Judge in Chambers, may, at any Trial of differ- time, or from time to time, order the trial of different ^n dMerent"^ questions of fact in different ways, or order one question "'*y^- to be tried before another, and may appoint the places for the different trials. An order for trial of one issue (a)' Sugg v. SUber, 1 Q. B. D. 588 ; s. c. W. N. 76, p. 166. 362, 366 ; Lascdles v. Butt, 2 Ch. (c) Leigh v. Brooks, 5 Ch. D. D. 588 ; a. c. W. N. 76, p. 166. 592. (b) Lascelles v. Butt, 2 Ch. D. CON'TROL OF COURT OVER MODK OF TRIAL. Ill before another will not be made where the issues are complicated {d), or except on very special grounds (e) ; and, it would seem, is made less readily on the appli- cation of the plaintiff, than on the application of the defendant (/). An issue raised by counterclaim will not be ordered to be tried before the original issues raised ((/). The order may be made in cases of mixed -"• questions of law and fact (h). The discretion of the Court or Judge below will not be lightly interfered with by the Court of Appeal {i). The Court, or the Judge in Chambers, may, at any Order 36, rr. 1 1 ■ 1 r 1 • ,7 N P ■ 27, 29. Order time, order the ,tnal or the action (/c), or ot any issues for trial of fact, or of fact and law, before a Judge and jury, and ^ ^^^^' may order them to be tried at the London or Middlesex sittings of an J' of the Common Law Divisions, or at the assizes ; but every order directing trial at the London r. 29a. Order or Middlesex sittings of any Common Law Divisions, or reason, at the assizes, must state why the action,^question, or issue is to be tried there, instead of in the Chancery Division (V). There must be some good reason for making the order, as it wiU not be made on the mere whim of the applicant (m). The order will not be made where the issues are complex and involve inferences of law {n), and it is a strong, though not conclusive, (d) Emma Silver Mining Co. v. (i) Ibid. Grant, 11 Ch. D. 918, 930. (k) Wood and Ivery, Limited (e) Piercey v. Young, 15 Oh. D. v. Hamiblett, 6 Oh. D. 113. 475. 10 For form of order see West if) Emma SUrer Mining Co. v. v. White, 4 Ch. D. 631 ; Wood and Grant, mpra, p. 928 ; and see Dent Ivery, Limited v. Bamblett, 6 Ch. V. Sovereign Life Assurance Co., D. 113 ; Powell v. Williams, 12 W. N. 79, p. 33 ; 27 W. R. 379. Oh. T>. 239. ig) Piercey v. Young, su7>ra. (m) Wood v. Kay, W. N. 79, (A) Tasmauian Main Line Ry. p. 206. Co. V. Cla/rk, W. N. 79, p. 88, 106 ; (n) Singer Manufadwring Co. 27 W. K. 677. V. Loog, 11 Ch. D. 656. 112 CONTROL OF COURT OVER MODE OF TRIAL. ground for refusing it that one only of several de- fendants desires trial by jury (o). Where the action goes to be tried by jury of its own accord, in pursuance of notice, the rule does not apply {p). An order for trial at the assizes will not be made after great delay in making the application {q). Order 36, i. The Court, or the Judge in Chambers, may, if it 26. Order . ^ . . for trial with- appears desirable to do so, direct any question or issue of fact, or of fact and law, which could have been tried without a jury, otherwise than by consent, before the Judicature Acts, to be tried without a jury. If, therefore, notice of trial with a jury has been given, or, some other mode of trial having been specified in the notice of trial, the opposite party has given notice that he requires trial with a jury, any party who objects to this mode of trial may apply by motion or summons for an order that the action may be tried by the Judge without a jury. The discretion of the Court or Judge to direct trial without a jury will not be controlled by the Court of Appeal (r), unless a very Order, when strong case is shown (s). The order may be made on made. .... the application either of plaintiff or defendant (t). The order has been made in an action charging fraud (u), for specific performance («), for infringement of trade- Co) Mirehouse v. Bamett, 26 W. (s) Ruaton v. ToUn, 10 Ch. D. K. 690 ; and see Back v. Hay, 5 558. Ch. D. 235. (t) Sykes v. FiHh, W. N. 77, p. [p) Wwrner v. Mm-doch, 4 Ch. 38 ; 46 L. J. Ch. 627 ; PiOey v. D. 750, 756 ; Hunt v. City of Lon- Baylis, 5 Oh. D. 241 . don Real Property Co., 3 Q. B. («) Back v. Hay, 6 Ch. D. 235 ; D. 19. Ruston v. Tohin, supra. (2) Lloyd T. Jones, 7 Ch. D. (x) Swindell v. Bvnninglwm 390. Syndicate, 3 Ch. D. 133 ; PiOey (r) Swindell v. Birmingham v. Baylis, 5 Ch. D. 241 ; Sykes v. Syndicate, 3 Ch. D. 127, 133 ; Pirth, W. N. 77, p. 38 : 46 L. J. Brooke v. Wigg, 8 Ch. D. 810. Ch. 627. CONTROL. OF COURT OVER MODE OF TRIAL. 113 mark or patent {y), and in an action involving questions of title {z). The fact that only one defendant has given notice of trial by jnry is a strong ground for making the order (a) ; as is the fact that the parties originally affreed to take the evidence by affidavit (&). The order Order, when . ■ ...... refused. has been refused in a creditor's administration suit where the debt was disputed (c), in an action to restrain a nuisance {d), in an action respecting interference with ancient lights (e), or prescriptive rights (/), in an action for the dissolution of partnership {g), and even in an action founded on fraud and misrepresentation (Ji). (y) Spratt's Patent v. Ward d: Co., 11 Ch. D. 240 ; Singer Manu- facturing Co. V. Loog, 11 Ch. D. 656. (z) Wedderbum v. Pickering, 13 Ch. D. 769; Smith v. NoHh Staf- fordshire Ry. Co., ii L. T. 85. (a) Mirdumae v. Bamett, 26 W. K. 690 ; Back v. Hay, 5 Ch. D. 235. (6) Brookes. Wigg, 8 Ch. D. 510. (c) Clarke v. Cookson, 2 Ch. D. 746. id) West V. White, 4 Ch. D. 631 ; P(ywell v. Williams, 12 Ch. D. 234. (e) Bordier v. Burrell, 5 Ch. D. 512. (/) Petar v. lailey, W. N. 81, p. 22. {g) Clements v. Norris, W. N. 77, p. 248 ; 26 W. B., 94. (A) Gwrling v. Royds, 25 W. R. 123. 114 CHAPTER XXXIII. TRIAL OF THE ACTION. Order 36, r. 1. TRIAL of the action will take place in Middlesex, Trial in i , • , i Middies&x. Unless otherwise ordered, or unless some other place for trial is named in the statement of claim (a). Order 36, r. If the defendant does not appear when the action is 18. Default . . . of appearance called on for trial, the plaintiff may prove his claim, so trial. far as the burden of proof lies on him, and obtain judgment. Proof of service of notice of trial is not required (i). Order 36, r. If the plaintiff does not appear when the action is 19. Default of ,, , . • , , , „ f , . . , appearance by Called on for trial, the defendant may obtain judgment defendant at t ■ ■ ,i ,• -jyi ^ ^ t- ^ trial. dismissing the action, or, it he has delivered a counter- claim, he may prove, his counterclaim, so far as the burden of proof lies on him, and obtain judgment against the plaintiff. There is no necessity for the defendant to prove service of notice of trial in such a case (c). Where the plaintiff has become bankrupt (a) But see Lloyd v. Jones, 7 160, where Pry, J., declined to Ch. D. 390, where Fry J., inti- follow hie previous decision to the mated an opinion that the plaintiff contrary in CockshoU v. London could alter the place of trial by General Cab Co., W. N. 77, p. 214; his notice of trial where no special 26 W. K. 31. place for trial had been mentioned (c) James v. Crow, 7 Ch. D. in the statement of claim. 410 ; Ex parte Lows, 7 Ch. D. 160; (6) Chorlton v. Dickie, 13 Ch, D. Robsan v. Eolson, 22 Sol. J. 70. TRIAL OF THE ACTION. 115 judgment cannot be thus obtained, unless proof of service of notice of trial on the trustee in bankruptcy is given (d). Any party, in whose absence judgment has been o^cl™ 36, r. obtained, may apply to the Court, within six days after ment obtained in absence of the trial, for an order setting aside the judgment, and any party may the order may be made on such terms as seem just ; the application, in case of trial at the assizes, being made either at the assizes or in Middlesex. An order setting aside the judgment, and directing the action to be restored to the paper, will be made on payment of the costs of the day and of the application (e), and the order is almost a matter of course, where the default is owing to a slip (/). Where the plaintiff's absence at the trial is caused by the default of his solicitor, the time for applying to set aside the judgment will be enlarged (g). The trial may be postponed or adjourned, if expe- Order 36, r. dient, on such terms as the Court thinks just. When be adjouriied. the trial is adjoiirned, after the case is called on, to enable the plaintiff to add parties and amend, the plaintiff will be ordered to pay the defendant all costs actually incurred by the action standing several days in the paper (A). The Court may, on the trial of the action, direct any Order 36, r. issues of fact to be tried before a jury, and may adjourn ordered to the trial for that purpose. i'urf'af trill. jury i [d) Eldridge v. Burgess, 7 Ch. (/) Surffoinev. Taylor, supra. D. 411. ij/) Michel v. Wilson, 25 W. R. (e) Coclcle-7. Joyce, 7 Ch. D. .'i6 ; 380 ; and see and consider Atioood Wright V. Clifford, W. N. 78, p. v. Chichester. 3 Q. B. D. 722. 38 ; 26 W. K. 369 ; King v. Sande- {h) Lydall v. Martinson, 5 Ch. man, 26 W. K. 569 ; Burgoine v. D. 780 ; Dowdeswell v. Dowdeswell, Taylor, 9 Ch. D. 1. W. N. 77, p. 228. i2 IIG TUIAL OF THE ACTION. Order 36, r. Upon the trial of the action, the Court may direct 22a. Judg- _ ^ _ ■' ment at trial, judgment to be entered for either party at, or after, the or adjourn- . . , . ment. trial, or may adjourn the case for further consideration, or may leave the parties to move for judgment. This latter course is open to Judges of the Chancery Division (i). Order 36, r. Where the action, or issues in the action, are tried at 23. Findings of fact to be the assizes, or at the London or Middlesex sittings of entered by ° Associate. any of the Common Law Divisions, the findings of fact, and the directions, if any, as to judgment, and the certificates, if any, granted by the Judge, will be entered by the Associate or other proper officer in a book kept for that purpose. (i) Krehl v. Bim-eU, 10 Ch. D. 420. 117 CHAPTER XXXIV. TRIAL BEFORE REFEREE. Any question arising in the action may be referred Judicature by the Court, or the Judge in Chambers, to an OflBcial, s. 56. or Special, Referee for inquiry or report, and the report ^ay be re- of the Referee may be wholly, or partially, adopted by RSeree°for the Court and enforced as a judgment. The Court or ''®P°^- Judge has no jurisdiction to refer the whole cause of action for report (a), but may refer all the issues (6). The report must state, fully, the facts on which it is founded (c), but should not give reasons (d). The Referee has no jurisdiction to order judgment to be entered, his only duty being to report (e). An inquiry as to damages in an action for injunction should not be taken before a Referee but before the chief clerk (/). The remuneration to be paid to a Special Referee will Remuneration of Special in each case be fixed by the Court ; it has been fixed Referee fixed at five guineas a day (g). Where all parties interested, who are sui juris, con- Judicature ^ • •'Act, 1873, s. 57. (a) Longman v. East, 3 0. P. D. 9 Ch. D. 20, 28. 142. («) Longman v. East, supi'a. (6) Goodwin v. Bvddm, 42 L. T. (/) Slack v. Midland Ry. Co., 536. 16 Ch. D. 81. (c) Maijjor of Birmingham v. (j?) Wallis v. Udifield, W. N. Allen, W. N. 77, p. 190. 76, p. 130. (d) Dunkirh CoUiei-y Co. v. Lever, 118 TRIAL BEFORE REFEREE. Any question of fact or account may be referred to Referee. Whole cause cannot be referred. sent, any question of fact, or of account, may, at any stage of the action, and on any terms which are thought proper, he ordered by the Court, or the Judge in Chambers, to be tried before an Official, or Special, Referee ; or the order may be made without any consent, if a prolonged examination of documents or accounts, or a scientific, or local, investigation, is neces- sary, which cannot be conveniently made before a jury, or before the chief clerk [h). A broad construction will be put on the word account (i). Jurisdiction to refer one issue enables the Court or Judge to refer all the issues in the action and so avoid the expense of double trial (Je). Where questions of fraud seriously affecting the defendant's character are involved, the Court cannot order a reference without his consent (l). The whole cause cannot be referred, neither can judg- ment be entered by the Referee (tti). Every order for reference must shovr whether it is a reference for report or for trial, and, if the latter, whether all or what issues are to be tried (n). The Court of Appeal will not interfere with the discretion of the Court below to make or refuse the order (o). (A.) As to the distinction be- tween a reference for report under B. 56, and for trial under s. 57, Bee Longman v. East, 3 C. P. D. 160. (i) Eowdiffe v. Leigh, 3 Ch. D. 292. (i) Ward v. Pilley, 5 Q. B. D. 427 ; but see Longman v. East, 3 C. P. D. 160. (Z) Leigh v. Brooks, 5 Ch. T>. 592; but see and consider Moch V. Boor, 49 L. J. Q. B. 665. (m) Longman v. East, 3 C. P. D. 142, where it was held that such of the rules as contemplated the whole cause being referred, or judgment being entered by the Referee, were not consistent with the Act of 1873, and so not bind- ing on the Court. (n) Longman v. East, 3 C. P. D. 163, n. For form of order reserv- ing further consideration, see SyJces V. Brook, W. N. 80, p. 187. (o) Saaby v. Gloucester Waggon Co., W. N. 80, p. 28. TRIAL BEFORE REFEREE. 119 The business referred to the Official Referees is distri- O'-'Jei" 36, r. 29aa. Distri- buted among them in rotation by the Eesristrar's clerks, bution of DUS1U6SS in the same way as business referred to the Convey- among official ancing Counsel of the Court is distributed among them under the second consolidated order (p) ■ but if the Court, r. 29c. Reter- , _ , . , ence to parti- or the Judge in Chambers, directs a reference to any cuiar Official particular Official Referee, which may be done where expedient, regard will be had to such direction. The parties themselves are not entitled to require reference to any particular Official Referee (q). The order directing the reference, or a duplicate of Older 36, r. ^ 29b. Order to the order, must be produced to the Registrar's clerk, by be endorsed ..,11 1 1-1 -p • 1 with name of whom it Will be endorsed with a note specifying the Referee, name of the Official Referee to whom the question or issue is to be referred, and the order, when so endorsed, will be a sufficient authority to the Official Referee to proceed with the reference (r). The Referee, unless otherwise ordered, may hold the Order 36, i. 30. Referee to trial wherever he deems most convenient, and have any hold trial Wiicrc he inspection or view, either by himself, or with his asses- pleases, sors, if any (s), which he deems convenient. Unless otherwise directed, he must proceed with the trial de die in diem, but if the parties do not object, at the time, to this not being done, they cannot afterwards move to set aside the award on that account (t). (p) Morgan, p. 134. a reference hy order. (?) LcacdUs V. Butt, 2 Ch. D. (s) The rules provide that notice 533, 592. of trial may specify the mode of (r) It will be observed that no trial as before a Special or Official directions are given as to the Referee with assessors ; but see course to be adopted when notice ante, p. 104. of trial before a Referee has been («) Robinson v. Robinson, W. N. given: the rule only applying to 76, p. 154; 24 W. R. 675. 120 TRIAL BEFORE REFEREE. Order 36, r. 31. To be conducted like trial in High Court. Order 36, rr. 32, 33. Re- feree to have authority of Judge. Order 36, i. 34. Referee may submit question or facts to Court, Order 36, r. 34. Court may require explanation, or remit for re-trial. Trial before a Referee is conducted in the same way, with regard to evidence, and the mode of enforcing the attendance of witnesses, and otherwise, as trials before Judges of the High Court, except that the tribunal of the Referee is not a public Court of Justice. The Referee has the same authority in the conduct of the reference or trial as a Judge of the High Court, except that he cannot commit any one to prison, or enforce any order by attachment ; he cannot, it would seem, make an order for the production of documents (u). The Referee may, during the trial, or by his report under a reference for report, submit any question for the decision of the Court, or state, specially, any facts for the Court to draw inferences from, and the order to be made on such a submission or statement will be entered as the Court may. direct. The Court may require the Referee to explain, or give the reasons for, his report, and may remit the cause or matter to him, or to any other Referee, for re-trial, or for further consideration, or may decide the question referred, on the evidence taken before the Referee, with such further additional evidence as the Court may require. The Court has no power to vary the report, and, if it is not adopted, must either decide the question itself, or remit the matter to the Referee (v). Where the report does not state the facts on which it is founded, it will be remitted for explanations (x). Any party objecting to the report, and desiring a further reference. (u) Rowcliffe V. Leigh, 4 Ch. D. 661. (v) Dunkirk Colliery Co, v. Lever, 9 Ch. D. 20. (a;) Mayor of Birminghxim v. Allen, W. N. 77, p. 190. TRIAL BEFORE REFEREE. 121 must support his application by an affidavit of what took place at the trial {y). The application should be by summons (»), not ex parte (a), and must be made within the time limited for moving against verdict of jury (b). {}/) Stuhbs V. Boyle, 2 Q. B. D. (a) Graves v. Taylor, 27 W. K. 124. 412. (z) Wood V. Bamicot, W. N. 78, (i) Sullivan v. Rivington, 28 W. p. 36. E. 372. 122 CHAPTER XXXV. APPLICATION FOE NEW TRIAL. Order 39, rr. WHERE an action in the Queen's Bench, Common Order 57a, Pleas, or Exchequer, Division has been tried by a jury, tion to be to ^"Y P^^rfcy to the action may apply to a Divisional Court Court."'^ by motion for an order nisi for a new trial, which application must, if the trial took place in London or Middlesex, be made within four days from the date of trial, or, subsequently, on the first day on which the Divisional Court sits to hear motions, or, if the trial took place elsewhere, within seven days after the last day of the sitting on circuit, or, if such last day occurs during or within a week , before vacation, then within the first four days of the next sittings ; but days on which the Divisional Court is not sitting will not be counted in calculating the four days (a). Where the whole action, though assigned to the Chancery Division, has been tried by jury in one of the Com- mon Law Divisions, an application for a new trial must be to a Divisional Court (b), but where an issue (a) Hallums v. Hills, W. N. 76, Property Co., Limited, 3 Q. B. D. p. 237 ; 24 W. R 956 ; Grant v. 19 ; Jones v. Baxter, 5 Ex. D. HoUand, W. N. 80, p. 156. 275. (6) Hunt V. City of London Real APPLICATION FOR NEW TRIAL. 123 only in the action has been tried by jury, application for a new trial must be to the Judge of the Chancery Division (c). Where an action (in the Queen's Bench, Common Pleas, S^^ trial after or Exchequer, Division (d)) has been tried by a Judge '"^i without without a jury, application for a new trial must be made to the Court of Appeal. It would seem, however, that the proper mode of obtaining relief in such a case is by appeal, and not by motion for ne w trial (e). A copy of the order nisi for a new trial must be ^'^^^^ ^^' '• ^• ' "^ _ _ _ Service of served on the opposite party within four days from the order nisi. time the order is made. A new trial will not be granted on the ground of Order 39, r. 3. New trial, misdirection, or on the ground of the improper admis- when directed. sion, or rejection, of evidence, unless some substantial wrong or miscarriage has been thus occasioned ; the Court may, if it appears that the wrong or miscarriage New trial as thus occasioned affects part only of the matter in con- matters in troversy, direct a new trial as to that part, and give "^"^^ '" final judgment as to the rest. To induce the Court of Appeal to interfere, it is necessary to show gross miscarriage (/). A new trial of any one question in the action may be Order 39, r. 4. . . . ■^ Partial new directed, without disturbing the finding on any other trial, question. (c) Jones V. Baxter, 5 Ex. D. 275. T>. 553, and Potter v. Cotton, 5 Ex. (d) It was distinctly held in D. 137, questioning this decision, Kreitl V. Burrell, 10 Cb. D. 428, it is treated as deciding that the thatthewordsin brackets governed rule enabled an application for the whole of this rule, and, con- new trial after trial by Chancery sequently, that it did not apply to Judges. cases where a Judge of the Chan- (e) Potter v. Cotton, 5 Ex. D. eery Division had found verdict, 137 j Panndl v. Nann, W. N. and left the parties to move for 80, p. 148 ; 28 W. E. 940. judgment; but, in subsequent (f) Ea/rp y.Fav,lhncr,2i'W.'R. cases of Dollman v. Jones, 12 Ch. 74. 124 APPLICATION FOK NEW TRIAL. Order 39, r. 5, Stay of pro- ceedings. Order 40, r. 10. Final judgment on motion for new trial. An order nisi for a new trial will operate as a stay of proceedings, unless otherwise ordered. The Court may give final judgment on a motion for new trial, or, if there are not sufficient materials before the Court to enable it to do so, may adjourn further consideration, directing any issues or questions to be tried or determined, and any accounts and inquiries to be taken and made, which it thinks fit. Thus the Court may, if it thinks fit, set aside judgment in favour of the plaintiff, and give judgment in favour of defendant, if it has the necessary material before it on the motion for new trial (g). ig) WaddeU v. Blocklaj, 10 Ch. D. 416 ; Hamilton v. Johnson, 5 Q. B. D. 263. 12a CHAPTER XXXVI. MOTION FOE JUDGMENT. Where any defendant makes default in delivering Order 29, •.. a defence or demurrer, the action must, as we have fault of seen (a), be set down against him on motion for judg- ^ ** ™^' ment. The plaintiff may also, as we have seen (b), move Order 40, r. 11. On ad- for judgment on any admissions in the pleadings, in miBsions in the 1 ■ 1 • 1 1 ■ pleadings, which case, however, he need not set down the action, but may apply by motion in the ordinary way. Where judgment cannot be obtained in any other Order 40, 1. 1. _ ^ . . -^ _ Where no manner, it must be obtained by setting down the action other method provided, on motion for judgment ; thus, where, in consequence of the defendant having dispensed with the delivery of a statement of claim, no pleadings have been delivered on either side, the action must be set down on motion for judgment, notice of trial being only applicable where the pleadings are closed (c). Where the Judge (or Referee (d) ) abstains from Order 40, l-. 3. . , , 1 • T n ■'■* judgment directing judgment to be entered at the trial, the not given at trial, (o) Ante, p. 94. standing this and other rules of (b) Ante, p. 96. the same order, vfhich clearly con- ic) Kegistrar's Notice, W. N. template judgment being directed 77, p. 58 (Miscellaneous) ; Morgan, to be entered by a Keferee, that 558 ; Wilson, 275 ; but see and the Keferee has no jurisdiction to consider Wiimott v. Young, 29 direct judgment to be entered : W. E. 413. Longman v. East, 3 C. P. D. 142. (d) It has been held, notwith- 126 MOTION FOR JUDGMENT. plaintiff may at once set down the action on motion for judgment, but if he fails to do so, and to give notice of motion to the other parties within ten days after trial, the action may be set down on motion for judgment by the defendant. Order 40, r. 7. Where issues, or questions of fact, have been ordered issues. to be tried, or determined, in any manner, the plaintiff may, as soon as they have been tried or determined, set down the action on motion for judgment, but if he fails to do so, and to give notice of motion to the other parties within ten days after his right to set it down has arisen, the action may be set down on motion for judgment by the defendant (e). Order 40, r. 8. Where some, only, of the issues or questions of fact some only of Ordered to be tried, or determined, in any manner have sevsra issues. ^^^^ g^ ij-[q^ or determined, any party to the action may, if the result of their trial or determination renders the trial or determination of the remaining issues or questions of fact unnecessary, or renders the postpone- ment of their trial or determination desirable, apply to the Court, or to the Judge in Chambers, for leave to set down the action at once on motion for judgment, and leave may be given, if expedient, and the trial or determination of the issues or the questions of fact still ■ remaining untried or undetermined may be postponed, if desirable. Order 40, r. The Court may give final judgment on motion for 10. Final (e) This rule seems to apply Judge and jury has been ordered where a reference for report under under rule 27 of Order 36, ante, sec. 56, or for trial under sec. 57 of p. Ill, and not to cases where the the Judicature Act of 1873, has issues have been tried by a jury in been ordered, ante, pp. 117, 118, or pursuance of notice of trial, where trial of any issue before a MOTION FOKr JUDGMENT. 127 judgment, or, if there are not sufficient materials before judgment _ 1 1 ■ 1 . "^ motion for the Court to enable it to do so, may adjourn further judgment, or • J ,■ J !• 1 • ,• . further con- consideration, and may direct any issues or questions to sideration be tried or determined, and any accounts and inquiries * J°"™^ • to be taken and made which it thinks fit (/). There must be two clear days' notice of motion for Order 53, r. 4. Notice of judgment (g), which notice of motion may be filed if motion. the defendant has not appeared (h). No action can be set down on motion for judgment Order 40, r. 9. Action to be more than a year from the time when the party seeking set down to set it down became first entitled to do so, without year. leave. (/) For form of order adjourn- (g) See cases cited ante, p. 94, iDg further consideration on motion n. («). for judgment, see Bennett v. Moore, (A) Dymond v. Croft, 3 Ch. D. 1 Ch. D. 692 ; GUbeH v. Smith, 2 512 j Morton v. MiUer, 3 Oh. D. Ch. D. 686, 689. 516. 128 CHAPTER XXXVU. ENTRY OF JUDGMENT. Consolidated Order 1. Be- speaking judgment. Settling and passing judg- ment. Order 41, r. 1- Judgment to be entered by Begistrar. Every judgment and order must be bespoken by one of the parties within seven days from the time it is pronounced, and, at the same time, counsels' briefs, and such other documents as the Registrar may require for drawing up the judgment or order, must be left with him. A draft of the judgment is then prepared by the Registrar and delivered to the party bespeaking it, with a written appointment of a time for settling the judg- ment or order, which must be served on the opposite parties at least a day before the time fixed. On the day fixed, the judgment or order is settled by the Regis- trar in the presence of the parties, and, on a subsequent day, it is passed, by the Registrar's affixing his initials at the bottom of the last page, and is then left with the entering clerk for entry. Every judgment must be entered by the Registrar in a book kept for that purpose, and the party entering the judgment must deliver to the Registrar a copy of all the pleadings in the action, except petitions and sum- mons, which pleadings must be printed, except so far as the originals are not required to be printed. If a copy ENTRY OF JUDGMENT. 129 of any pleading has already been delivered to the Eegistrar, on entering any previous judgment in the same action, delivery of another copy is unneces- sary (a). If the judgment is pronounced in Court, the entry of ^^^'^ ^^' ^- ^- JJ8iti6 01 611 try judgment will be dated the day of pronouncing judg- »* judgment. ment, from which day the judgment will take effect, but, in all other c^ses, the entry will be dated the day on which the requisite documents are left with the Registrar, and the judgment will take effect from that date. Whenever it is provided that judgment is to be Order 41, r. 4. m ^ ■ T • fT 1 ^ Production of entered on any affidavit being filed, or document pro- affidavit or duced, the Eegistrar, before entering judgment, must examine the affidavit or document, and see that it is regular. Clerical mistakes in judgments and orders, and errors Order 4ia. . . Correction of therein from accidental slips or omissions, may at any errors in time be corrected by the Court on motion without an appeal (6). (a) See generally as to the (b) See Re Savage, 29 W. R. Si8 ; course of procedure before the Fritz v. Hohson, 14 Ch. D. 542, Eegistrar, Daniell'a Ch. Pr. chap. 661. 26, sec. 3, and Morgan, 562. 130 CHAPTER XXXVIII. INTERLOCUTOET RELIEF. Judicature Act, 1873, s. 25, subs. 8. Injunction, mandamus, or Order 52, i. i. Motion ex parte. Order 53, i. 8. Leave neces- sary before time for ap- pearance has expired. Any party to the action may apply to the Court, hy motion, for an injunction, mandamus, or the appoint- ment of a receiver, and the Court may make the order, if just and convenient, either unconditionally, or on such terms or conditions as seem just. The power to grant injunctions where "just and convenient" does not alter the principles on which the Court should act (a), though it has, it would seem, very much en- larged its powers both in granting injunctions and receivers (6). If the plaintifif makes the motion, it may be made either ex parte (c) or with notice ; but if he desires to give notice of motion before the time limited for the defendant's appearance has expired, he must obtain leave to do so. An order for the appointment of a receiver may be obtained, ex parte, by the plaintifif before service of the writ, in an extreme case (d), but (a) GasUn v. BaUg, 18 Ch. D. 324, 329 ; Day v. Brownrigg, 10 Ch. D. 307 ; Beddow v. BedcUm, 9 Ch. D. 89. (6) Anglo Italian Bank-v. Dames, 9 Ch. 286 ; Aslatt v. Corporation of Southampton, 16 Ch. D. 143 ; Shaw V. Jersey, i G. P. T>. 359 ; but see conPra, Dicks v. Brooks, 15 Ch. D. 25. (c) Though not strictly, perhaps, within Order 53, i. 3, the rule laid down there that motions must not be ex parte unless mischief would be caused by delay will, it is sub- mitted, hold good in this case. (rf) ff. v.R.,1 Ch. D. 276, cited in Morgan, at p. 595 as an autho- rity for granting an order before issue of the writ, and not merely before service, as appears from the report : Colehov/me v. Coleboume, 1 Ch. D. 690. INTERLOCUTORY RELIEF. 131 the writ must, for that purpose, be endorsed with a claim for a receiver (e). The plaintiflF will be appointed receiver and manager without giving security (/). An injunction, or mandamus, will be granted, or a receiver appointed, on the application of the defendant (g). An injunction may be granted, or receiver appointed, after final judgment (A), and even though the writ did not claim a receiver (i). No action or proceeding pending in the High Court Judicature of Justice or Court of Appeal can be restrained by s. 24, sub's. 5. prohibition or injunction (k), but every matter of equity, be restrained on which an injunction against its prosecutor might ■*' '°J'"'° '°°" formerly have been obtained, may be relied on as a de- fence in the action. The Court may, however, order a stay of proceedings in any action pending before it. Where there are cognate actions pending in the Chan- cery Division and in a common law division, judgment may be conveniently taken in the common law action with a restriction that it is not to be enforced without the leave of the Judge before whom the Chancery action is pending (I). After an agreement for compro- mise, an order staying proceeding may be made on summons under this section, without the necessity of a fresh action to enforce the agreement for compro- mise (m). (e) Ooleboume v. Colehoume, 1 9 Ch D. 275 ; Bryant v. BuU, Ch. D. 690. 10 Ch. D. 153. (/) Taylor v. EckersUy, 2 Ch. (i) Salt v Cooper, W. N. 80, p. C. 302; Hyde v. Warden, 1 Ex. 183; 43 L. T. 682. D. 309; Swrgant v. Head, 1 Ch. (*:) WrigU v. Redgrave, 11 Ch. D. 600. D. 24. (a) Sarqant v. Read, 1 Ch. D. (I) Birmingham Estates Co. v. 600. Smith, 13 Ch. D. 506. {h) Anglo-Italian Bankv.Daviee, (m) Eden v. Naieh, 7 Ch. D. K 2 ]:$2 INTEKLOCUTORY RELIEF. Order 52, rr. 1,5. Preservation or interim custody of subject matter. Payment into Court. Order 52, r. 2. Sale of perish- able goods. Order 52, r. 3, Detention, preservation, or inspection of subject matter. When a primd facie case of liability, under a contract, is established by the pleadings, or is shown by affidavit, if there are no pleadings, from which liability the defendant claims to be totally or partially relieved, an order may be obtained by the plaintiff for the preservation, or interim custody, of the subject matter of the action, or for payment of the amount in dispute into Court, or for otherwise securing it, as soon as the plaintiff's right to the order appears from the pleadings, or by affidavit. An order for payment into Court by a trustee may be made on motion, before de- livery of the statement of claim, on an undisputed affidavit that the money is in the hands of the trus- tee (n). A receiver may be appointed in an adminis- tration action after the death of the sole defendant, the executrix, before order of revivor (o). An order may be obtained by the plaintiff, at any time after the issue of the vrrit, or by the defendant, at any time after appearance, for the sale of any goods which, from their perishable nature, or for other reasons, ought to be sold at once. Sale has been ordered under this rule of a horse (p), and of Florida State Bonds (q). An order may be obtained by the plaintiff, at any time after the issue of the writ, or by the defendant, at any time after appearance, for the detention, preserva- tion, or inspection, of any property which is the subject 781 : SmUy v. Dundonald, 8 Oh. T). 658 ; but see Gilbert v. Sndean, 9 Ch. U. 259. (n) Freeman v. Cox, 8 Ch. D. 148 ; the old rule that payment into Court by trustees on motion oould only be obtained on theirown admission being thus abrogated. (o) Cash V. Parker, 12 Ch. D. 293. (p) Bartholemew v. Freeman, 3 C. P. D. 316. {q) Coddington v. Jacksonville Ry. Co., 39 L. T. 12. INTERLOCUTORY RELIEF. 133 matter of the action, and the order may authorise access by any persons to the premises of any party to the action, and may authorise samples to be taken, and observations and experiments made, if necessary, for the purpose of obtaining full information or evidence. An- order for inspection may be made on an ex parte application (?■) ; it will not be made on the application of the defendant, tiU he has delivered his defence (s). Where the plaintiff, by his statement of claim or Order 52, r. 6. writ, or the defendant, by his counterclaim, seeks to property on recover any specific property, except land, upon which ^^ pa°ty^°' property the opposite party claims a lien, but does not <=i^™^ i'*""- otherwise dispute the title of the party seeking to re- cover it, the Court, or the Judge in Chambers, may, as soon as the claim for lien appears from the pleadings, or is shown by affidavit, if there are no pleadings, order the amount of the lien claimed, with a further sum to answer interests and costs, to be paid into Court, to abide the event of the trial, and may order the property to be given up to the party claiming it, on such pay- ment into Court being made. Two days' notice of motion must be given to the Order 53, rr. parties affected by the motion, unless leave to serve motion, shorter notice is given, or unless serious mischief is likely to be caused by any delay, in which case relief may be granted ex parte, on such terms as to costs and otherwise, and subject to such undertaking, if any, as the Court thinks just. But if the order is inade ex Ordei ex parte, parte, any party affected by it may move to set it aside. (r) Hennessy . 305 ; Rhodes v. (i) Ex parte Bishop, 15 Ch. D. Jenkins, 7 Ch. D. 711 ; CoaZhupe 400. V. Lewis, W. N. 79, p. 180 ; Machu (i) Registrar's Eegulation8,Mor- v. O'Connor, W. N. 78, p. 144 ; gan, p. 609. WaddM v. BlocTcky, 10 Ch. D. (4 Smith y. Grindley, 3 Ch. D. 416. 140 APPEALS. appeal in time was rendered impossible by the respond- ent's delay in drawing up the order (n) ; but he must make a substantive application for his costs (o), and must give proper notice of motion (p). Before the respondent moves the Coui-t of Appeal, he should apply out of Court for the costs of an abandoned motion, and, if he omits to do so, he will not be allowed the costs of his motion (q). Where the appellant has allowed the time for setting down his appeal to go by (r), or has withdrawn it (s), he may serve fresh notice of motion of appeal. If, on the appeal being called on, no one appears for the appellant, the appeal will be dismissed with costs, without proof of service of notice of appeal being required (t). Order 58, r. No appeal from any interlocutory order will be 16. Time for appeal from allowed, except by special leave of the Court of Appeal, order. unless notice of motion of appeal is given (u) within' twenty-one days from the entry of the order appealed against, or, in the case of an appeal from the refusal of an application, within twenty-one days from the date of refusal. Where several claims are joined in one sum- mons, of which one is refused, and the rest allowed, time for an appeal from the refusal runs from the date of refusal, not from the entry of the order (x), as is, (») Goodbarne v. FothergiU, 10 (a) Watson v. Oave, W. N. 81, Ch. D. 613. p. 24. (o) Webb V. Mcmsel, 2 Q. B. D. («) Ex parte Lows, 7 Ch.D. 160; 117 s GharUon v. Cha/iiUm, 16 Magnus Spamier v. Marchant, W. Ch. D. 273. N. 78 p. 214. (p) Se OahweU Collieries Co., 7 («) Ex parte Yiney, 4 Ch. D. Ch. D. 706. 794 ; Ex parte Sqffery, 5 Ch. D. (2) Griffin v. AUen, 11 Ch. T>. 365. 913. (sc) TraUv. Jackson, iCh.D. 7 ; (»•) Norton v. L. & N. W. Ry. Co., Berdanv. Birmingham Small Arms 11 Ch. D. 118. and Metal Co., 7 Ch. D. 24. APPEALS. 141 also, the case, where the refusal appealed from was accompanied by an order for costs against the appel- lant {y). But an order refusing an application, which contains an expression of opinion or declaration, is dif- ferent, and time will not run, in such a case, from the date of the refusal (z). An order on an interpleader What orders ..,,,,, . , 1 J. are interlocu- issue is interlocutory [a), as is also an order lor a new tory. trial (6), an order on a summons of a creditor in an administration action to which he is not a party (c), or judgment on a special case stated by an arbitrator to whom the action has been referred (d). Where definite issues are settled at the commencement of trial of an action in the Chancery Division, it has been held that the finding of the Judge is interlocutory, and that an appeal must be brought within twenty-one days (e) ; but in ordinary cases judgment in the Chancery Division is not interlocutory, though it deals only with ques- tions of fact, and an appeal from it may be brought within a year (/). An application to vary the chief clerk's certificate is interlocutory, and an appeal from an order, or refusal, to vary, even though made at the hearing of the cause on further consideration, must be brought, in the case of an order to vary, within twenty- one days from entry of the order {g), and in the case of a refusal to vary, within twenty-one days from the date of (y) SmiTuMl V. Birminghom, Syn- (d) CoUmsy. Vestry of PacUUng- dicate, 3 Ch. D. 127. ton, 5 Q. B. D. 368. (2) Se Clay v. TeOey, 16 Ch. (e) Krehl v. Svmrell, 10 Ch. D. B. 3. 420 ; but see Potter v. Cotton, 5 (o) M'Andrew v. Ba/rker, 7 Ch. Ex. D. 137, where KreJil v. BmreU D. 701. is questioned. (6) Bigktonv. Treherne, W. N. (/) Lowe v. Lowe, 10 Ch. D. 78, p. 227; 48 L. J. Ex. 167. 432 ; and see DoUmwn v. Jones, 12 (c) Pheusey v. Pheysey, 12 Ch. D. Ch. D. 553. 306. » » » ' ^g) ^r^ite v. Witt, 5 Ch. D. 589. 142 APPEALS. refusal (h). An order overruling a demurrer is not inter- locutory (i), nor is an order on admissions in the plead- ings, under Order 40, r. 11, necessarily interlocutory (k). Order 58, r. No appeal from any judgment, or final order, will be appeal from allowed, except by special leave of the Court of Appeal, finafopderr unless notice of motion of appeal is given (l) within 'a year from the time the judgment, or order, is signed, entered, or otherwise perfected, or, in the case of an appeal from the refusal of any application, within a year from the date of refusal : thus, where an action is disffiissed with costs at the hearing, the time runs from the date of its dismissal, and not from the entry of the judgment (m). Timetoappeal Where the time for appeal has expired, any person on special applying for leave to appeal must show special grounds grounds. i a j! t ■ j for indulgence, such as bona fide mistake, surprise, un- avoidable accident, or that he has been misled in some way (n), and leave will not be granted ex parte (o). The mere fact that the appellant has misunderstood the rules is not such a special circumstance as will induce the Court of Appeal to extend the time (p). {h) Cwmmim v. Heron, 4 Ch. D. 9 ; Graig v. PhiUips, 7 Ch. D. 249 ; 787. He Myth v. Young, 13 Ch. D. 420. (j) TroweU v. Shenton, 8 Ch. D. (o) Evennett v. Lawrence, 4 Ch. 318. D. 139. (k) Att.-Oen. v. Gt. Eastern Ry. (p) InternationaZ Financial So- Co., 48 L. J. Ch. 432. ciety v. City of Moscow Gas Co., 7 {I) Ex pa/rte Viney, i Ch. D. Ch. D. 211 ; Shades v. Jenkins, 7 794 ; Ex poffte Safiery, 5 Ch. D. Ch. D. 711 ; Highton v. Treheme, 365. W. N. 78, p. 227 ; 48 L. J. Ex. 167 ; (m) International Financial So- Be Sceptre and Licensed Yictiudlers ciety V. City of Moscow Gas Co., Insurance Co., W. N. 79, p. 6 ; 7 Ch. D. 241. Collins v. Vestry of Paddimgton, 5 {n) International Financial So- Q. B. D. 368, In which last case, Hety V. City of Moscow Gas Co., however, Bramwell, L. J., oon- 7 Ch. D. 241 ; Swindell v. Sir- sidered that any bond fide slip mimgham Syndicate, 3 Ch. D. 127, ought to be relieved against. 138 ; Trail v. Jackson, 4 Ch. D. APPEALS. 143 Where an ex parte application has been refused by Order 58, r. . . lO- Time for the Court below, a similar application for the same appeal from , , 1 ^ refusal of ex purpose may be made, ex parte, to the Court of Appeal, parte appUca- within four days from the date of the refusal of the application, or within such further time as may be allowed by the Court below, or by a Judge of Appeal ; but the application for further time must be made, in the first instance, to the Court below. The Court of Appeal may require the appellant to Order 55, r. 2. Order 58, r. give security for costs under special circumstances, both 15. Security ,,-... for costs. the amount of the security, and the method of giving it, being within their discretion. The fact that the ap- Ground for _ ... . application, pellant is a foreigner not domiciled in England is sufficient to entitle the respondent to security for his costs (q) ; but a mere temporary residence here, solely for the purpose of prosecuting the suit, will disentitle the respondent to such security (r). The fact that the appellant is a pauper, or in insolvent circumstances, is, prima facie, a sufficient reason for ordering him to give security for costs (s). Where the appellant has amended his statement of claim at a late stage, so as to raise an entirely new case, this has been considered a special circumstance, entitling the respondent to security for costs (t). Security for costs wiU be granted with equal readiness, whether the appellant is plaintiif or defendant (u). Security may be ordered to be given. Nature of security. (g) Grara v. Banque Franco- 37 ; but see UsU v. Bgyptienne, 2 C. P. D. 430. C. P. D. 206. (r) Redondo t. Chayter, i Q. B. («) Northampton Coal Co. v. D, 453. Midland Waggon Co., 7 Ch. D. (») HarMn v. Turner, 10 Ch. D. 500. 376 ; Ex parte Isaacs, 9 Ch. D. («) Oence v. Maaon, W. N. 79, 271 ; Wilson v. SmUh, 2 Oh. D. p. 31. 144 APPEALS. Order 58, rr. 16, 17. Appeal no stay of proceedings unless so ordered. Terms of order staying proceedings. either by paying money into Court, or by giving a bond with sureties {v). The order will not be made in the form that, if the security is not given within a specified time, the action will be dismissed (x), but, if not given within a reasonable time, (the reasonableness depending on the circumstances of each case), the appeal wiU be dismissed on the application of the respondent (y). An order requiring the appellant to give security for costs will not be made, after the costs have been actually incurred by the respondent, and a time has been fixed for the hearing of the appeal (z). Notice of a motion for security for costs may be given without leave (a). The respondent should, in the first instance, apply out of Court to the appellant for security to prevent unnecessary expense, and, if he fails to do so, may be deprived of the costs of the motion (6). No appeal will operate as a stay of execution, or a stay of proceedings, under the judgment, or order, appealed from, unless the Court below, or the Court of Appeal, so orders; and an application for an order staying execution or proceedings, pending appeal, must be made, in the first instance, to the Court below. An original motion for that purpose to the Court of Appeal cannot be entertained (c). Where, however, the action {v) Phosphate Sewage Co. v, Ewrtmcmt, 2 Ch. D. 811. (x) WUson V. Smith, 2 Oh. D, 67; Polimi v. Ora^, 11 Ch. D, 741. (y) JwM V. Green, i Ch. D. 784 1 Vale V. Oppert, 5 Gh. T>. 633 ; PoUwi V. Ora/y, supra. (a) Qrant v. Bamqv£ Franco- Egyptienne, 1 C. P. D. 143 : Mutchins v. Jlomer, W. N. 79, p, 99 ; Mayor of SaUash v. Goodman, 43 L. T. 464. (a) Grills v. DiUon, 2 Ch. D. 325. (6) Ship Constamtimi 4 V.D. 156. (c) Att.-Gen. v. Swansea Im- provements and Tramway Co., 9 Ch. D. 46, explaining dictum of Mellish, Xi. J., to the contrary in Cooper V. Cooper, 2 Ch. D. 472. APPEALS. 145 has been wholly dismissed, the Court of Appeal will, pending appeal, grant an injunction to restrain any of the parties from parting with the subject-matter of the action, as the Judge below has, in such case, no juris- diction to stay proceedings (d). Under special circum- stances, proceedings under a decree for account may be stayed pending appeal (e), but it is not usual to make the order (/). Stay of proceedings will be ordered on Terms of order staying pro- the terms of the appellant's paying the costs of the ceedinga. application, and also paying into Court, or to the respondent's solicitor, on an undertaking to refund, if necessary, any costs which the appellant is liable to pay under the judgment, or order, appealed from (g). The order will not be made ex parte (A). Pending an appeal to the House of Lords, stay of proceedings may be ordered by the Court of Appeal (i), but the Court of first instance has no jurisdiction to make the order at that stage (k). The Court of Appeal has the same powers and duties. Order 58, i. 5. 11- rs on Court of as to amendment and otherwise, as a Court or first Appeal has all instance, and has, also, power to receive further evidence court of first on questions of fact. The appellant will not, however, '"^^ *°''^' be allowed to raise on the appeal a case inconsistent with that raised in the Court below (l). (d) WiUon V. Church, 11 Ch. 615. D. 576. (h) Tlie Republic of Peru v. (c) Adair v. Young, 11 Ch. D. Wegvelin, U W. K. 297 ; Emma 136. Mining Co. v. Lewis de Son, 48 (/) ffyam v. Terry, 29 W.R. 32. L. J. C. P. 504. {g) Cooper v. Cooper, 2 Ch. D. (i) Wihon v. Church, 12 Ch. D. 192; Morgan V. EJford, 4 Ch. D. 454; Polini v. Gray, 12 Ch. D. 388 ; Grant v. Bamque Franco- 438. -,^jtienne, 3 C. P. D. 202 ; Eames (A) The Khedive, 5 P. D. p. 1. V. ffaam, W. N. 81, p. 4 ; and for (I) Ex parU Reddish, 5 Ch. D. the.earlier cases, see Morgan, p. 882. 146 APPEALS. Order58, r. 5. Q^ an appeal from an interlocutory order, further Admission of '^ '■ j > further evidence may be given without leave, but on an appeal evidence on _ appeal. from a judgment after the trial or hearing of the action, no further evidence, except as to matters which have occurred since the date of the judgment appealed from, will be admitted without leave of the Court of Appeal, which wiU only be granted on special grounds (m). Leave may be granted at the hearing of the appeal, but previous notice of the intention to apply for leave should be given to the other side (%) ; this rule, however, only applies in case of affidavit and documentary evidence, and where fresh witnesses are to be examined vivd voce on the appeal, the application for leave should be made by previous motion (o). A witness who has been examined vivA voce in the Court below will not be allowed to supplement his evidence by affidavit on appeal (jj). Leave to subpoena a fresh witness may be given, without prejudice to the question whether his evidence is to be received {q). Order 58, r. 5. Further evidence may be given vivd voce at the Mode of giving further heanng of the appeal, or may be taken by affidavit, or evidence. i i ■,■ i p • . • by depositions beiore an exammer or commissioner. Affidavits used in chambers before the chief clerk, but not at the trial, are further evidence, and may be used by leave on appeal (r). (to) Bigiby v. JHckimon, i Ch. ChenneU, 8 Ch. D. 492, 604 ; hut D. 24 ; Re Phwnix Bessemer Steel see Re Orr Ewing's Trade Marks, Co., 4 Ch. D. 108, 116 ; WesUm's 26 W. R. 777. case, 10 Ch. D. 579 ; 48 L. J. (o) Dkhs v. Broohe, 13 Ch. D. Ch. 425 ; and for the earlier cases, 652. see Morgan, p. 61 1. (p) Taylor v. Orange, 15 Ch. D. (n) Bastie v. Mastic, 1 Ch. D. 165. 562 ; Justice v. Mersey Steel amd (j) Ooiier's case, 24 W. B. 36. Iron Co., 24 W. E. IQSlj Jones v. (r) Jones ». CkermeU, 8 Oh. P. APPEALS. 147 Evidence taken in the Court below by affidavit must Order 58, r. 11. Affidavits be brought before the Court of Appeal by the produc- produced on tion of printed copies of those affidavits which have already been printed, and of office copies of those which have not been already printed ; but, where the evidence is very voliuninous, the production to the Court of office r- 12- Affi- davits not copies wiU be dispensed with (s). If the affidavits already printed. have not been printed in the Court below, the Court, or a Judge, of Appeal may order them to be printed for the purpose of appeal, but any partj- printing them, without an order, will be liable for the costs, unless otherwise ordered by the Court, or a Judge, of Appeal. Evidence taken vivd voce in the Court below at the Order 58. r. 11. Vivd voce hearing must be brought before the Court of Appeal evidence in by the production of a copy of the Judge's notes, or of such other materials as the Court of Appeal deems expedient. The Court of Appeal strongly discourages shorthand notes of evidence, and the costs of such notes wiU not as a general rule be allowed, as the Judge's notes of the evidence ought to be sufficient for the purposes of appeal (t). To enable the taxing- master to allow such costs, there must be a special direction by the Court of Appeal at the hearing of the appeal (u) ; only the costs of making a transcript of, and printing the shorthand notes will be allowed, 604, where the grounds for ad- 312 ; but see Bigaby v. Dickenson, mitting such further evidence are 4 Ch. D. 32 ; Leadley v. Sykea, fuUy discussed by Jessel, M. R. W. N. 75, p. 252. {») Crawford v. Homaea Steam, (u) Ashworth v. Outram, 9 Ch. D. £rkh and Tile Workt Co., 24 W. 483 ; HiU'g Exemtora v. Manager! R. 422 of Metropolitan Aeylum Siatrict, {t) KMy V. Bylet, 13 Ch. D. W. N. 80, p. 98 ; 49 L. J. Q. B. 692 ; Re Suehets of Weitminater 668. Silver Lead On Co., 10 Ch. D. l2 148 APPEALS. and not the costs of the attendance of the shorthand writer to take the notes (x). Order 58, r. 5. Any judgment may be given, or order made, on Ordsr or ' judgment on appeal which ought to have been made by the Court below, whether the notice of motion of appeal is directed to the whole decision appealed against or not, and whether the respondents, or other parties to the action, in whose favour the Court below ought to have decided, have appealed from, or complained of, the decision or not (y). Order 58, r. Qn the hearing of an appeal from a judgment 5a. Power to . ~ . . „ direct new pronounced on the verdict or finding of a jury, or of a appeal. judge without a jury, the Court of Appeal may, if it thinks that a new trial ought to be had, order that the verdict and judgment be set aside and a new trial had (z). Order 58, r. 5. The Court of Appeal may make any order as to the Costs in dis- in-, oretiou of costs ot the appeal which seems just, the general rule being that the successful appellant will get his costs (a). Judicature The Court of Appeal cannot entertain an appeal 49. 'no appeal from any judgment or order which has been taken by meS; or order Consent, nor can it entertain an appeal as to costs, orasto^oosts. u^less leave to appeal is granted by the Court below. An appeal will not lie from an order depriving a trustee of his costs (6), but will lie from an order (x) JBigsby v. Dickenson, 4 Ch. D. applies to Chancery actions where, 24, 32 ; Ex pwrte Sam/er, 1 Ch.D. as in that case, there is a distinct 698. finding on a question of fact. (y) Hunter v. Sunten; W. N. (o) Memorandum, 1 Oh. D. 41 ; 76, p. 138, 24 W. E. 527. Ex parte Masters, 1 Ch. D. 113. (z) It would seem, having regard (6) Se HosHn's trusts, 6 Ch. D. to the decision of Krehl \. BnrreU, 281. 10 Ch. D. 420, that this rule APPEALS. 149 allowing a trustee his costs, charges, and expenses (c), or from an order as to costs, which involves a question of principle (d), or is prefaced by a declaration of opinion (e). The Court of Appeal cannot, where the action has been dismissed without costs, vaiy the order by dismissing it with costs (/). (c) Jones V. Chemell, 8 Oh. D. 69. 492. (/) Harris v. Am-on, 4 Cli. D. (d) The City of Manchester, 42 749 ; Ch-akam v. Gam/pbelX, 38 L. L. T. 521. T. 195. (e) Witt V. Corcoran, 2 Ch. D. 160 Order 51, r. 1 . By order of Lord Chancellor. CHAPTER XLI. TEANSFEE OF ACTIONS. Any action may be transferred from one Division to another, or from one Judge of the Chancery Division to another, by order of the Lord Chancellor, but the consent of the Presidents of the respective divisions is necessary in the former case. Transfer will be ordered in case of cognate actions before different Judges of the Chancery Division (a). In case of cognate actions in the Chancery Division and one of the Common Law Divisions, it may, on occasion, in preference to transfer, be better to take judgment in the Common Law action, to be enforced only by leave of the Chancery Judge (&). Order 51, r. In case of a transfer from one Judge of the Chancery hearing only. Division to another, the order for transfer, or a separate order, may specify that the action is transferred for the purpose of trial or hearing only, in which case the original, and any further, hearing will take place before the Judge to whom the action is transferred, but all other proceedings in the action, whether before or after the hearing, must be taken before the Judge to (a) Davis v. Davis, 48 L. J. Oh. 40. (5) Birmingham Estate Co. v. Smith, 13 Ch. U. 506. TRANSFEll 0¥ ACTIONS. 151 whom the action was assigned at the time of transfer, unless the Judge to whom it is transferred directs that further proceedings should be taken before himself, or an OiEcial or Special Referee (c). A petition for a charging order on the fund the subject of the action is a further proceeding within the meaning of the rule, and may be ordered by the Judge to be heard by him- self (d) ; as may an application for stay of proceedings pending appeal (e), or to correct a slip in the judg- ment (/). It is doubtful whether in the case of an action transferred for the purpose of the hearing only, the Judge to whom the action was assigned at the time of transfer has power to adjourn the hearing of any interlocutory application in the action to the Judge to whom it is transferred (g). Where all parties consent, the application for transfer Mode of should be made in writing to the Lord Chancellor's for transfer, secretary, the written application being accompanied by a written consent of all the parties to the action ; where all parties do not consent to the proposed transfer, the application must be made to the Lord Chancellor in Court (h). The Court of Appeal has no jurisdiction to order a transfer (i). Any action by, or against, a company which is in Order 51, r. 2a. Winding (c) All causes transferred to (/) Fritz v. Hobmn, 14 Ch. D. Mr. Justice Fry, which have not 542, 561 ; Sliaw v. Brown, W. N. been tried or heard, shall be 81, p. 27 ; 50 L. J. Ch. 232. deemed to be transferred to him \g) Mnydv.Jone8, 7 Gh.V.SdO; for the purpose of trial or hearing Associated Some Co. v. Whichcorn, only. Order of Court of 23rd of 47 L. J. Ch. 654 ; but see Robin- March.l881,W. N.81(Mi9c.),144. smi v. Ohadwkk, 26 W. R. 421 ; id) Porter v. West, W. N. 80, Shaw v Brown, supra. p. 195; 43 L. T. 569. W Memorandum, 1 Ch. D. 41. (c) Orr£Jwing (t Co. V. Johnston, (i) Be Hutley, 1 Ch. D. 11 ; Re 41 L. T. 467. Boyd's trusts, 1 Oh. D. 12. 152 TRANSFER OF ACTIONS. up or adminis- course of being wound up, or by, or against, the execu- tors or administrators of any testator, or intestate, whose assets are in course of being administered under an order of the Court, may be ordered by the Judge, in whose Court the winding up, or administration, is pend- ing, to be transferred to himself without any further consent being necessary. On the transfer of an action against an executor, the order will provide that further proceedings in the first action be stayed, with liberty to the plaintiffs in that action to prove for their claims and costs in the administration action (k). An action against an executor in a Common Law Division will not be transferred unless it is clear that it is against him in his representative character (l). The applica- tion for transfer may be made ex parte (m). Order 51, r. 2. Any action may be transferred, at any stage, from one Judge to Division to another, by order of the Court, or of any Judge assigned. of ^^ Division to which the action is assigned {n), but, except in the case of actions by or against companies in course of winding up, or executors or administrators of persons whose estates are in course of administra- tion, no transfer can be made without the consent of the President of the Division to which the action is to be transferred. An order for transfer may be made by a Common Law Judge sitting at Chambers, though (h) Eanaonv. StxMs,?,C'h.T>.Xhi; Co., 10 Gh. D. 489; but see Re and see West v. Downman, W. N. United Kingdom Tdegraph Co., 79, p. 13 ; 27 W. R 355 ; but see 29 W. K. 332. contraSe Timms,V/'.N.78,p.'i.il; M A. literal constructioii of 47 L. J. Ch. 831, where Bacon, this nde would enable Judges of V.-C, on transfer refused to stay the Chancery Division to order proceedings in the first action. the transfer to another Division of (l) Chapmwn 9. Mason, W. N. any action in their own Division, 79, p. 93 ; 40 L. T. 678. whether assigned to themselves or (to) Fidd V. Field, W. N. 77, not ; but this can hardly have p. 98 ; Re Landore Siemens Steel been contemplated. TRANSFER OF ACTIONS. 153 not a Judge of the Division to which the action is assigned (o). Though no actual transfer can take place tUl the consent of the President has been obtained, the order for transfer may be taken before applying for his consent (p) ; but where the President sitting in Equitable ,. ,... . counterclaim. the Divisional Court, on the application for transfer, has concurred in refusing the order, it would seem that the Court of Appeal has no jurisdiction to make the order (q), - An action properly assigned, in the first instance, to one of the Common Law Divisions has, on delivery of a counterclaim for specific performance, been ordered to be transferred to the Chancery Division (r). An action for salvage assigned to the Chancery Division will be ordered to be transferred to the Admiralty- Division (s). Where an action assigned to the Chancery Division is to be tried by a Judge with a jury, the proper course is to obtain an order for transfer to one of the Common Law Divisions prior to the trial, obtaining a re-transfer after the trial if necessary (t). An order for transfer cannot be made ex parte (w). Any order for transfer to the Chancery Division Order 52, r. 3. must name the Judge to whom the action is to be name Judge, transferred. (0) Hillman v. Maykew, 1 Ex. each other, the question whether D. 132. an equitable counterclaim entitles {p) Humphreys v. Edwards, W. the defendant to a transfer may N. 75, p. 208, 45 L. J. Ch. 112. be deemed an open one. It is sub- ({) StArrey v. Waxldle, 4 Q. B. D. mitted, however, that Storey v. 289. Waddle would more probably be (r) Hillman v. Mayhew, 1 Ex. followed, and that an order for D. 132 ; HoUcrway v. York, 2 Ex. transfer would not now be made. D. 333 ; Smyth v. Levinge, 39 L. T. (s) Hvmphreys v. Edwards, W. 579,butBeecontra Storey V. Waddle, N. 75, p. 208 ; 45 L. J. Ch. 112. 4 Q. B. D. 289. As HoUoway {«) Clements v. Norris, W. N. V. York, and Storey v. Waddle, 78, p. 4. are both decisions of the Court of (u) Humphreys v. Edwards, 45 Appeal, andin direct opposition to L. J, Ch. 112. 154 TRANSFER OF ACTIONS. Order 52, r. 4. Actions in the same or different Divisions may he Consolidation. consolidated, by order of the Court or a Judge, in the manner hitherto in use in the Superior Courts of Common Law (x). Where actions are consolidated, the same evidence may be used in them all (y). Where there are numerous actions against the same defendant raising substantially the same question, one may be ordered to be tried first as a test action, the others being stayed meanwhile (z). (x) For the practice relating to K. 900. consolidation, see Lush's Practice, (s) Amos v. Cluxdwick, 9 Ch. D. 964. 459 ; Bennett v. Bwry, 5 C. P. D. (y) Smith v. WMchcord, 24 W. 339. 155 CHAPTER XLII. CHANGE OF PARTIES BY DEATH, &C. No action will become abated by the marriage, death, Order 50, 1. 1. No abatement or bankruptcy, of any of the parties, provided that the on marriage, J. . . • / V -ii • death, or cause 01 action survives or continues (a), nor will it bankruptcy. become defective by the assignment, creation, or devo- ^^p'' Action lution, of any estate or title pendente lite, but may be "«' rendered continued by, or against, the person to, or upon, whom change of interest, the estate or title has come or devolved (6). A receiver wUl be appointed in an administration action, to prevent the assets being wasted, after the death of the executrix, the sole defendant, and before an order of revivor has been obtained (c) : but where the plaintiff becomes bankrupt after the commencement of the action, he cannot proceed with it (d), nor can the defendant, without notice to the trustee in bankruptcy, obtain an order against the plaintiff dismissing his action for want of prosecution (e), or obtain judgment against (a) As to when the cause of (c) Cash v. Parker, 12 Ch. D. action will, and when it will not, 293. survive, Bee Darnell's Ch.Pr. 1388; (d) Jackson v. North Eastern and see Twycross v. Grant, i C. P. Railway Co., 5 Ch. D. 845. D. 40. (e) Wright v. Swindon . 419. (a) Motion v. King, 29 W. E. («) Boynton v. Boynton, 9 Ch. 73. D. 250; 4 App. C. 733. 158 CHANGE OF PASTIES BY DEATH, &C. or person of service, a guardian ad litem appointed in the action, may unsound mind. i j <• i make a similar application, within twelve days from the time when a guardian ad litem is appointed (t), till the expiration of which time the order will have no effect against him. Order 50, r. 5. Any person served with the order must, if not already Appearance . . , . . , , by party a party to the action, appear m the action, within the served with ,, i • ji -i? -l i i i order. Same time and in the same manner, as it he had been served with a writ of summons instead of an order (u). Default of appearance by the trustee in bankruptcy of a defendant who had himself appeared and pleaded before bankruptcy will not render it necessary to file the pleading and notice of trial, the effect of the order of revivor being to place the trustee in the exact position of the original defendant (x). {t) As to the appointment of see ante, p. 13. guardians ad litem, see ante, p. 16. {x) ClwrUon v. Dickie, 13 Ch, (u) As to appearance to a writ D. 160. 159 CHAPTER XLIII. PROCEEDINGS IN DISTRICT REGISTRIES. Where the writ is issued out of a District Registry, Order 12, rr. any defendant who is resident, or carries on business, ance to writ, within the District must, as we have seen (a), appear there, while any defendant not resident, or carrying on business, within the District, may appear either in the District Registry or in London. If all the defendants appear in the District Registry, Order 12, rr. the action, unless removed, will proceed there, but if ceedinfs in any defendant appears in London it will, unless other- ^^"^* wise ordered, proceed in London. The plaintiff may, if he can show that the defendant. Order 12, r. 5. T 1 • r 1 1 J- T i Appearance in appearing m London, is a mere formal defendant, or London. has no substantial cause to interfere with the conduct of the cause, obtain an order from the Court, or the Judge in Chambers, that the action may proceed in the District Registry, notwithstanding the defendant's appearance in London. Any defendant may, at any time after appearance. Order 35, rr. but before delivering his defence, obtain the removal Removal of of the action from the District Registry to London, by LonXn," (a) Ante, p. 13. 160 PROCEEDINGS IN DISTRICT REGISTRIES. Order 35, r. 12. Action ordered to . proceed in District Registry not- withstanding notice of remcfval. Order 35, r. 13. Action removed to London by order. Order 35, r. 13. Action removed to District Eegistry by order. Order 35, r. 14. Docu- ments trans- mitted to London on removal. serving on the other parties to the action, and delivering to the District Registrar, a notice, signed by himself, or his solicitor, to the effect that he desires the action to be removed to London, and it will be removed accordingly. The plaintiff may, on showing that the defendant, serving notice of removal, is a mere formal defendant, or has no substantial cause to interfere with the con- duct of the action, obtain an order from the Court, or the Judge in Chambers, that the action may proceed in the District Registry, notwithstanding the notice of removal. Any. party to the action may obtain from the District Registrar, or from the Court or the Judge in Chambers, an order to remove the action from the District Registry to London, on such terms as seem just, on showing that there is sufficient reason for doing so. The action may be set down in the District Registry for trial in London, on application to the District Registrar, without any order for removal (h). Any party to an action proceeding in London may obtain an order from the Court, or the Judge in Cham- bers, to remove the action from London to any District Registry, on such terms as seem just, on showing that there is sufficient ground for doing so. On the removal of any action from a District Registry to London, all original documents, if any, filed in the District Registry, and a copy of all entries in the books of the District Registry of any proceedings in the (6) Lumb V. Whiteley, W. N. 77, p. 40; Birmingham Waste Co. v. Lane, W. N. 76, p. 50 ; 24 W. R. 292; but see Walker v. Robin- son, W. N. 75, p. 245, 24 W. B. 137. PROCEEDINGS IN DISTRICT REGISTRIES. 161 action, must be transmitted by the District Registrar to London. While the action proceeds in the District Registrv, all Order 19, rr. 29,29a. pleadings and documents which require filing must be Filing in filed there (c), except certificates of the Chief Clerk and Registry. Taxing Master's affidavits and other documents (re- quired to be filed) used before the Judge in Chambers, or any Taxing Master or Referee of the Court, and not already filed in the District Registry, which must be filed in the Central Office, copies being transmitted to the District Registry, if the Court or Judge in Chambers so direct. Where the action proceeds in the District Registry, Order 35, r. la. Proceed- all proceedings must be taken there, down to, and in- ings in Dis- cluding, final judgment, unless otherwise provided by rules of Court, or otherwise ordered by the Court or Judge in Chambers. District Registrars cannot Eestrioted powers of make a decree, even by consent, nor can they enter District . 1 111- Registrars. judgment, or make an order for account, except on de- fault (d) ; they cannot appoint a receiver, or direct banking accounts to be opened, or money to be paid in to those accounts (e), nor can they take accounts or inquiries directed by a judgment pronounced by the Court, unless specially directed to do so by the judg- ment (/). They can, however, it would seem, dismiss (c) Where the defendant makes as an authority in the recent case of default in appearance, all plead- Hutchinson v. Ward, 6 Ch. D. 692. ings may be delivered to him (e) Hutchinson v. Wa/rd, 6 Ch. by filing them in the District Re- D. 692 ; Jiobertson v. Capper, W. gistry, ante, p. 17. N. 78, p. 66 ; 26 W. K. 434; and (d) £rageington v. Citsaons, 24 see Finlay v. Davis, 12 Oh. D. W. R. 881 ; Irlam v. Mam, 2 Ch. 735. D. 608, which case, though decided (/) Irlam v. Irlam, 2 Ch. D. on the original rule, and not on the 608 ; Hutchinson v. Ward, 6 Ch. rule now in force, was recognised D. 692. P M 162 PROCEEDINGS IN DISTRICT REGISTRIES. Sale of real estate in District Eegistry. Taxation of costs. Order 35, r. la. Entry of judgments and orders in District Registry. r. 2. Entry in London. actions for want of prosecution (g). In partition actions the usual inquiries may be taken in the District Registry, but the application for sale must be made to the Judge in Chambers (h). Though a sale of real estate under a judgment may be ordered to take place in a District Eegistry, the Court of Appeal will not interfere with the discretion of the Court below, where such an order has been refused, even where all parties desire a sale in the District Registry (i). Taxation of costs will not be ordered to proceed in the District Registry, except under very special circumstances (k). Every order for an account made by a District Regis- trar, either on the defendant's default (I), or by consent, must be entered in the District Registry, as must also any final judgment pronounced by the District Registrar, unless the Court or the Judge in Chambers otherwise orders (m) ; but any judgment, or order, pronounced, or made, by the Court or Judge in London, must be en- tered in London, and an office copy of the judgment or order must be transmitted to the District Registry, and must be filed there. (g). Foster v. Edwards, 48 L. J. Q. B. 767. (A) Sykes v. Schofield, U Ch. D. 629. (i) MacdonaM v. Foster, 6 Ch. D. 193. (k) Day v. Whittaker, 6 Ch. D. 734. (I) As, for instance, on motion for judgment in default of plead- ing, ante, p. 92, or on summons, whera the writ is endorsed with a claim for account, ante, p. 18. (m) It would seem to result from the 1st and 2nd rules of Order 35, that all orders and judg- ments requiring entry, must, if made or pronounced in the Dis- trict Registry, be entered there, or, if made or pronounced in Lon- don, must be entered there. It is difficult, howevef, having re- ferred to the decision in IrUm v. Irlam, 2 Ch. D. 609, to imagine any case where final judgment can be pronounced by the District Registrar, except on default. PROCEEDINGS IN DISTRICT REGISTRIES. ] G3 Where final judgment is entered in the District Re- Order 35, r. 3. gistry (n), the costs must be taxed there, unless other- wise ordered by the Court or Judge. Any writ of execution to enforce an order or judg- Order 35, r. 3. Issue of exeou- ment m an action proceeding in a District Registry tion. must issue out of the District Registry, unless otherwise " ordered by the Court or Judge. District Registrars have the same jurisdiction as a Order 35, r. 4. Judge in Chambers, except such jurisdiction as the Authority of ' Common Law Masters are precluded by the- Judicature Keri"te,r Rules from exercising, viz., jurisdiction in respect of the liberty of the subject, the transfer of actions, the settle- ment of issues otherwise than by consent, discovery and inspection otherwise than by consent, interpleader otherwise than by consent, injunctions and other orders for interlocutory relief, awarding costs in proceedings not before themselves, reviewing taxation of costs, charging orders, and acknowledgments of married women (o). When a motion has been made to the Court, the jurisdiction of the District Registrar is at an end, and the action becomes ipso facto removed from the District Registry (j>). District Registrars have no jurisdiction to grant leave Order 64, r. -,..,.. - . . p 2a. Service for service out of the jurisdiction of a writ, or notice of out of juris- diction. a writ. (») See last note. tain cases) interpleader. Whether (o) By Order 54, r. 2a, the juris- the jurisdiction of the District dicti'in of the Common Law Registrars is enlarged by this rule Masters is increased and they are would seem doubtful, as they are given jurisdiction in respect of not named in it. discovery and inspection, except ( p) Dyson v. Pickles, W. N. 79, under Order 52, r. 3 (ante, p. 132), p. 12 ; 27 W. R. 376. charging orders nigi, and (in cer- M 2 16-1! PROCEEDINGS IN DISTRICT REGISTRIES. Order 35, rr. Applications to District Registrars must be made by tions to Dis- summons, and, if the matter is one proper for the deci- to be by° sion of the Judge, the application may be referred by summons. the District Registrar to the Judge, who may either dispose of it, or refer it back to the Registrar with any direction which he may think fit. Order 35, rr. 7, Any person, affected by any order or decision of the Appeal from District Registrar, may appeal to the Judge in Chambers, Registrar. by summons, within four days from the date of the order or decision complained of, or within such further time as may be allowed by the Judge or the District Registrar. An appeal will lie from an order or decision in respect of matters in which the District Registrar only had jurisdiction by virtue of consent. An appeal will also lie as to costs {q). Order 35, r. 8. An appeal from an order or decision of a District Appeal no -n • -n !• t stay of pro- Registrar will not operate -as a stay of proceedings, unless it is so ordered by the Judge or the District Registrar. Order 35, r. 9. District Registrars are subject to the orders and Court or direction of the Court or Judge, like any other officers " =*■ of the Court, and every proceeding in the District Registry is as much under the control of the Court, as a like proceeding in London. Order 35, r. 9. Any reference by, or appeal from, a District Re- appeaL gistrar must be to the Judge to whom the action is assigned. Order 35, r. 15. Every District Registrar must account for, and pay Payment to i m i • ^ • r~i j. i,' Treasury, Over to the Ireasury, all moneys paid into Court at nis Registry, in such manner and at such time as the (S) Foster v. Edwa/rds, 48 L. J. Q. B. 767. PBOCEEDINGS IN DISTRICT BEGISTRIES. 165 Treasxiry may direct. It would seem, however, that it is improper for the District Registrar to open accounts, and that moneys paid in to an account, in pursuance of his order only, wUl be paid in at the personal risk of all parties, the District Registrar included (r). (r) Hutchinson v. Ward, 6 Ch. D. 735. D. 692 ; Firday v. Davis, 12 Ch. 16G CHAPTER XLIV. ENFOECING THE EXECUTION OF JUDGMENTS AND ORDEKS. Order 42, i. 1. Order i7, i. 2, Payment to individuals. Order 42, r. 2. Payment into Court. Order 42, i. i Order 48. Recovery of land. Judgment for the payment of money to any person may be enforced in the same way, as it could have been enforced, in any Court, before the passing of the Judi- cature Acts, save that no subpoena for the payment of costs, and, (except by leave), no sequestration to enforce payment of costs shall be issued (a). Default in payment of costs does not authorise .attachment for contempt, but the party making default must be pro- ceeded against under the Debtors Act, 1869 (6). Judgment for the payment of money into Court may be enforced by writ of sequestration, or by a writ of attachment, where attachment is authorised by law. Judgment for the recovery, or delivery of possession, of land may be enforced by a writ of possession. The old writ of assistance is now obsolete (c). (a) In Chancery such a judg- ment has been enforced by a writ either of sequestration or attachment, and also on the ex- piration of a month from entry of judgment by a writ of fieri facias or elegit, see Daniell's Ch. Pr., chap. 26, s. 7, where the subject is fully treated. (6) EsdaUe v. Visser, 13 Ch. D. 42i; and see Jackson v. Mawhy, 1 Ch. D. 86 ; Micklethwaite v. Fktclier, 27 W. R. 793. (c) Hall V. BaU, 47 L. J. Ch, 680. ENFORCINa THE EXECUTION OF JUDGMENTS. 167 Judgment for the recovery of any property, other Order 4-2, r. 4. Order 49. than land or money, may be enforced by a writ of Recovery of J T property. delivery, attachment, or sequestration. No writ of injunction shall be issued, but an injunc- Order 52, r. 8. Writ of tion shall be by judgment or order, which shall have the injunction, effect of a writ of injunction. A mandarmis or iniunction may be enforced by writ Order 42, r. 5. •> •' " Mandamus or of attachment, or by committal. Attachment may be injunction, ordered on a motion to commit for contempt {(I), but an order giving leave to issue a writ of attachment will not enable committal on a subsequent ex parte application (c). No writ of attachment can be issued without leave of Order 44, rr. 1, the Court or the Judge in Chambers, and notice of the attachment. application must be given to the person whom it is sought to attach ; but service of notice of motion on the solicitor (/), or at the residence (gr) of the person sought to be attached, will be sufficient notice to the party himself. The costs of attachment, which are in Costs of 11- • <-i/~. T iif attachment. the discretion oi the Court, must be asked lor on the hearing of the application (A). Any person, to whom money or costs are payable Order 42, rr. under a judgment, may issue one or more writs of fieri Payment of facias, or elegit, to enforce payment, as soon as the ™ate enforced judgment is entered {i), unless a time for payment is 2:^{^ ^"" *"^ mentioned in the judgment, in which case execution ((f) Piyer v. Piper, W. N. 76, (g) Re A Solicitor, 14 Oh. D. p. 202; hnt &ee Buisty. Bridgeyf. 152; and see TUney v. Stansjkld, N. 80, p. 176; 43 L. T. 432, where W. N. 80, p. 77; 28 W. R. this decision is questioned by 682. Jessel, M. R. [h) Ahud v. Richer, 2 Oh. D. 528. (e) Buist V. Bridge, supra. (i) Under the old practice, a (/) Browning v. Sabin, 5 Ch. writ oi fieri facias or elegit could D. 511 ; Ri hards v. Kitclien, W. not issue till a month had elapsed N. 77, p. 128; but see contra, from entry of judgment. Mann v. Perry, W. N. 81, p. 4. 168 ENFOBCING THE EXECUTION OF JUDGMENTS. cannot issue till the expiration of the period allowed for payment, but, though separate writs may issue for money and costs, a second writ can only be for costs, and must issue within eight days after the issue of the first writ. The Court, at the time of giving judgment, or the Court or Judge in Chambers, subsequently, may give leave to issue execution before entry of judgment, or before the expiration of the time allowed for pay- ment, or may stay execution for any length of time beyond either of those periods. Order 43, rr.i, Writs of fieri facias and elegit have the same force, 2. Writ oiji. , , . , , P , fa. or eici/it. and are executed m the same way, as before the passing of the Judicature Acts, and any writs, which could then have been issued in aid of them, may still be issued and executed. Where any party in whose favour judgment has been given is unable, in consequence of an out- standing legal estate, to obtain actual delivery of the land of the debtor, he may now, in the same action, obtain equitable execution by the appointment of a receiver (k). Order 47. Where a judgment, directing payment into Court, or Issue of sequestration any other act, within a limited time, is disobeyed after without leave ,.,, ,, ... i.i bemg duly served, the person obtammg the judgment may, on the expiration of the time limited for the per- formance of the act directed, without any order for the purpose being necessary, issue a writ of sequestration against the estate and effects of the person disobeying the judgment, and the writ will have the same effect, and the proceeds will be dealt with in the same way, {k) Anglo-Italian Sanhv.Davies, 11 Ch. D. 691; 13 Oh. D. 252; 9 Ch. D. 275 ; Smith v. Cowell, 50 and see Bryant v. Bull, 10 Ch. D. L. J. Q. B. 38 ; Ex parte Evans, 163. ENFORCING THE EXECUTION OF JUDGMENTS. 169 as would have been the case in the Court of Chancery before the passing of the Judicature Acts (l). An order for payment of money by instalments under the Debtors Act, 1869, is within the rule, and will enable sequestra- tion to issue (m). Any person in whose favour judgment for any relief Order 42, r. 7. . Execution on IS given, subject to the fulfilment of any condition or judgment for ,.,„,„,,. ^. conditional or contingency, cannot, on its iulnlment, issue execution, contingent except by leave of the Court or the Judge in Chambers, "^ * * who may, if necessary, order any question or issue to be determined, before granting leave. Where judgment is obtained against partners in the Order 42, i. 8. name of their firm, execution may issue against the judgment partnership property, or against any person personally, ^^■ who is adjudged, or who admits himself, a partner, or against any person served with the writ as a partner, who has failed to appear. If execution is desired against any other person, on the ground that he is a member of the firm, leave to issue it must be obtained from the Court or the Judge in Chambers, by whom the question of liability, if disputed, may be ordered to be determined, before leave is granted. No writ of execution can be issued without production order 42, .. 9. „ , . , , . , i- • i ■ Production of of the judgment on which execution is to issue, or an judgment on office copy showing the date of entry, to the Clerk of the '^^^_ °^ ^^^^^ Judgments Department of the Central Office, or District Eegistrar, who must be satisfied that the party applying for the writ is entitled to issue immediate execution. (Z) Darnell's Oh. Pr., 924 ; rule would seem not to apply to Sprunt V. Pugk, 7 Ch. D. 567. injunctions, as not directing an An additional remedy is thus act to be done, liven to persons obtaining judg- (m) Willcock v. Terrell, 3 Ex. D. ment for recovery of land. The 323. 170 ENFORCING THE EXECUTION OF JUDGMENTS. Order 42, r. If). The party issuing execution, or his solicitor, must file Prcecipe must be filed by a prcBcipe for that purpose, containing the title of the execution action, the reference to the record, the date of the judg- ment and of the order, if any, directing execution to issue (n), and the names of the persons or firm against r. I0a._ whose goods execution is to issue ; and the prcecipe must be signed by, or on behalf of, the solicitor of the party issuing execution, or by the party issuing it, if he do so in person (o). Order 42, rr. The Writ must be dated the day of issue, and must of 'execution be indorsed with the name and address of the solicitor and indorsed Actually suing it out, and also, if he acts as agent only, with address, ^jj-j^ ^j^g ^^^^^g ^^^ address of the solicitor for whom he acts ; or if the writ has been sued out by the party in person, it must be indorsed with a memorandum to that r. 14. effect, containing the address of such party. The writ directions to must also be indorsed with directions to the sheriff, or other officer or person to whom it is directed, to levy the money due, stating the amount, and also to levy interest if sought to be recovered, at the rate of four per cent, from the entry of judgment, or at such rate as the parties agreed on (p). Order 42, r. 13. The party issuing execution may levy the poundage execution may fees and expenses of execution, in addition to the sum be levied. j -u j.1, ■ j j. recovered by the judgment. Order 42, r. 16. A Writ of execution will, if left unexecuted, only Duration and . . „ » „ . . , , renewal of remain in force for a year from issue ; it may, however, (m) Such order being m cessary sequestration and attafhment, see where the party is only entitled to Appendix, Nob. 34 and 35. relief on a contingency under Order [p) For form of writs for 42, r. 7, ante, p. 169, or in the case sequestration and attachment, see of attachment, ante, p. 167. Appendix, Nos. 36 and 37. (o) For forms of prwcipe for ENJ-'ORCING THE EXECUTION OF JUDGMENTS. 171 be renewed, by leave of the Court or the Jud^e in ■""* °^ execu- tion Chambers, for another year, at any time before it expires, as, also, may any renewed writ of execution ; and pro- r. 17. duction of the writ, properly sealed, will be sufficient evidenced by evidence of its renewal. ^"^ °^" Execution may issue, as between the original parties Order 42, r. 18. to the action, at any time within six years from the of execution, recovery of judgment. WTien a change, by death or otherwise, has taken Order 42, r. 19. place in the parties entitled, or liable, to execution, or execution on when more than six years have elapsed since judgment, partifs." execution can only be issued by leave of the Court or the Judge in Chambers, which leave may be granted, (on an ex parte application (q) ), at once, or, if necessary, any question or issue may be ordered to be first determined, in either of which cases the order may be made on such terms, as to costs and otherwise, as the Court, or the Judge in Chambers, may think just. Orders made by the Court or a Judge in Chambers Order 42, r. 20. Orders en- may be enforced in the same way as judgments. forceable like Any order made against, or in favour of, any person, q^.^^^, ^^ ^ 21. who is not a party to the action, may be enforced in the Order against r J 'J or in favuur of same way, as if the party, against whom, or in whose person not a •' 1. J a ^ party. favour, the order was made, were a party to the action, except in the cases mentioned in rule 18 of Order 42 (r). Any judgment creditor may obtain from the Court, Order 46, 1. 1. Charging or Judge in Chambers, a charging order on any stock order on stock or shares. (9) Mercier v. Lawrence, W. N. " rule 19 : " when the efEect would 78, p. 103 • 26 W. R. 506. be to make leave to issue execu- \r) The object of this exception tion necessary after a change of is very obscure, and it is suggested parties or the lapse of six years, that for " rule 18 " should be read 172 ENFORCING THE EXECUTION OF JUDGMENTS. Order only made for ascertained sum or costs. or shares standing in the name of the judgment debtor, or in the name of any person in trust for him, or in which he is interested in remainder or reversion, in the same way as he might have done before the passing of the Judicature Acts, and the order will give him all remedies which he would have had if the charge had been made in his favour by the judgment debtor, except that the charge cannot be enforced till the expiration of six calendar months from the date of the order (s). A charging order can only be given for an ascertained sum, and cannot be given for costs till they have been taxed (i). (s) For the practice in respect to charging orders, see Daniell's Ch. Pr., p. 898, et seq. By Order 46, r. 2a, et seq., writs of distringas are abolished, and notice is substituted, which is to be filed together with an affidavit in the Central Office; and service of an office copy of the affi- davit, and a duplicate of the filed notice on the company, or governor and company of thp Bank of Eng- land, vrill then have the same force as the issue of a writ of distringas, {t) Widgery v. Tepper, 6 Ch. D. 364, overruling Burns v. Irving, 3 Ch. D. 291. 173 CHAPTER XLV. ATTACHMENT OF DEBTS. Where judgment is given for payment of money, the Order 45, 1. 1. , . T /■ 1 /~i Order for exa- judgment creditor may obtain an order from the Court, or mination of the Judge in Chambers, for the oral examination, before debto aa to an examiner of the Court, or a special examiner, of the * ^" judgment debtor, as to what debts are owing to him, and for the production by him of any books or documents. The examination may take the form of the severest cross-examination (a). The judgment creditor may, either before, or after. Order 45, r. 2. Order nisi for examination of the judgment debtor, on an ex parte attachment of ... , , IV" 1 ■ 1 *■ debts may apphcation, supported by an amdavit, showmg tliat be obtained judgment has been recovered and is still unsatisfied, and ^'°P'^^' to what amount, and also showing that some person within the jurisdiction is indebted to the judgment debtor, obtain from the Court, or the Judge in Chambers, an order nisi for the attachment of all debts owing, or accruing, from the person named in the affidavit (who is called the garnishee) to the judgment debtor. An order dismissing an action with costs, for want of prosecution, is not a judgment within the meaning of this order, (a) Republic of Costa Rica v. Strousberg, 16 Ch. D. 8. 17-4 ATTACHMENT OF DEBTS. SO as to authorise attachment of debt (b). A garnishee order may be made against a receiver in an administra- tion action (c). A debt capable of attachment will not be created by service on the judgment debtor of a notice to treat, by a company, under the Lands Clauses Con- solidation Act (d). Order 45, r. 3. Service or notice to the garnishee of an order nisi for Service of order on attachment of debts will bind the debts in his hands, otder 45 rr Unless the garnishee, on service or notice of the order 4, 5. Execu- ^{gi p^yg the amount due from him to the judgment tion against ' sr j jo gamiahee. creditor, or an amount equal to the judgment debt, into Court forthwith, or disputes the debt," or if he does not appear upon summons, the Court, or the Judge in Cham- bers, may order execution to issue at once against the garnishee, but if the garnishee disputes his liability, the question of liability may be ordered to be deter- mined before ordering execution to issue. Order 45, rr. Where the garnishee alleges that the debt belongs to, party having o^" is Subject to a lien or charge in favour of, a third ordered'to^ persoD, the third person may be ordered to appear and appear. state the nature and particulars of his claim on the debt, and, after hearing him, or on his failing to appear, execution may be ordered to issue, or any preliminary question may be ordered to be tried, or any other order may be made, on such terms, with respect to the lien or charge and costs, as the Court or Judge thinks just and reasonable. Order 45, r. 8. Payment by, or execution levied upon, the garnishee Garnishee dis- (6) (7reme<«iv. CrooTO, 4 Q.B.D. 638. 225. (d) Eichm-dson v. Mmit, 2 C. P. (c) Bapier v. Wright, 14 Ch. T>. D. 9. ATTACHMENT OF DEBTS. 175 will be a valid discharge to him, as against the judg- charged by ment debtor, for the amount paid or levied, even though levy of execu- tion, Ihe proceedings for attachment are set aside, or the judgment is reversed. The costs of any application for attachment of debts, Order 45, r. ; -^f . . . 10. Costs of or of any proceedings incidental thereto, are in the dis- attachment in 1T1-/-I1 1 discretion of cretion of the Court or the Judge m (Jhambers. Court. 176 CHAPTER XLVI. COSTS. Order 55, r. 1. ExcEPT where oth^wise specially provided, the costs cretion of of, and incident to, any proceedings are in the discretion ""'' ■ of the Court; but trustees, mortgagees, and other persons, have the same right to costs out of any particular estate or fund as they had before the passing of the Judicature Acts (a). Order 55, 1. 1. Where the action, or any issue in the action, is tried Costs of jury trial to follow by a jury, the costs will follow the event, unless the Judge, before whom the action or issue is tried, otherwise orders upon an application made at the trial, or unless other- wise ordered by a Divisional Court (h). Order 55, r. 2. Where any party to an action is ordered to give Mode of giving security for Security for costs, the amount of, and the mode of giving, tiou of Court, the security is within the discretion of the Court or the Judge in Chambers (c). Under ordinary circumstances, the amount of security ordered will be 100?. (d), but in a proper case as much as 500Z. (e), or even lOOOZ. (/) {a) Be Soskim's Trusts, 6 Ch. D. 324. 281 ; but see Jones v. Chmnell, {d) Paaton v. Bell, 24 W. R. 8 Ch. D. 492. 1013. (6) Baker v. Oakes, 2 Q. B. D. («) RepvMic of Costa Rica v. 171 ; Tyne Alkali Co. v. Lawson, Erlamger, 3 Ch. D. 62. W. N. 77, p. 18 ; 36 L. T. 100. (/) Massey v. AOen, 12 Ch. D. (c) Staples V. Young, 2 Ex. D. 807. COSTS. 177 may be ordered to be given; and the security may extend to past as well as future costs (g). Where a defendant living out of the jurisdiction delivers a counterclaim in respect of the same matters as those on which the state- ment of claim is founded, he cannot be called upon to give security for costs (A). If the defendant counter- claims in respect of a distinct matter, he will not be entitled to security from a plaintiff out of the jurisdic- tion, though he would not, it would seem, by the mere fact of the counterclaim, lose his right to security, if it arose out of the same matter (i). The Court of Appeal may, (as we have already seen (k) ), require the appellant, imder special circumstances, to give security for costs. Where a bond is to be given as security for costs, it Order 55, r. 3. Security for must, unless otherwise ordered, be given to the party costs by bond. requiring the security and not to an officer of the Court. No appeal for costs can be entertained by the Court Appeal for 1 ■ • 11/^ coats. of Appeal unless leave to appeal is given by the Court below (l). {g) BrockUbank v. Lynn Steam- thip Co., 3 C. P. D. 365 ; Massey v. Allen, 12 Ch. T>. 8P7 ; but see and consider JlepuUic of Costa Rica v. Erlanger, 3 Ch. D. 62. (h) MwpUton V, Masini, 5 Q. B. D. 144. (i) Winterfield v. Bradmum, 3 Q. B. D. 324 {k) Ante, p. 143. {I) Ante, p. 148, and cases there cited. N 178 CHAPTER XLVII. TIME. Order 57, r. 1. WHERE the time allowed by the rules, or by any Time to be _ computed by judgment or order, for doing any act, or taking any pro- montiis. ceeding, is limited by months, it must be computed by calendar months, unless lunar months are expressly specified. Order 57, r. 2. Where a period of less than six days is allowed for Christmas doing any act, or taking any proceeding, Sunday, Good Friday, Christmas Day, and Good Friday will not be reckoned when not • , • , v . • reckoned. ^'^ computmg the time. Order 57, r. 3. Where the time for doing any act, or taking any pro- Olose of . . offices on last ceeding, expires on Sunday, or on any other day on which the ofiSces are closed, it may be done, or taken, on the next day on which the offices are open. Order 57, z. 8. Service of pleadings, notices, summonses, orders, rules, service. ^^^ Other proceedings, must be effected before two o'clock on Saturdays, and before six o'clock on other week-days, or will be deemed to have been effected on the following day, or, in case of service on Saturday, on the following Monday. Order 57, r. 4. No pleadings can be amended or delivered, without Amendment or delivery of leave, during the long vacation, nor will the long vaca- TIME. 179 tion be reckoned in computing the time for filing, pleadings in long vacation. amendmg, or delivering, any pleading, unless expressly directed. The time for delivering or amending pleadings may be Order ,57, i-. 6a. 1 J -L ... . - , Enlarging enlarged, by consent in writmg, without any application time by to the Court or a Judge in Chambers. The time limited by the rules, or by any order enlarg- Order 57, i. 6. ing time, for doing any act, or taking any proceeding, abiidgmg^ °^ may be enlarged or abridged by the Court, or the Judge *™®" in Chambers, on such terms as the justice of the case requires, and maybe enlarged, even though it has actually Enlargement expired at the time when the application is made (a), expired. It has been held that when an order has been made, dismissing the action if a statement of claim is not delivered within a week, the time cannot be enlarged after the expiration of the week, as the action is then at an end (&). The time for delivering a statement of claim maybe enlarged after it has actually expired, where the delay has been caused by a slip, although, but for the writ, the claim would be barred by the Statute of Limitations (c). (o) See Collins v. Vestry of Pad- 402 ; but see contra, Burke v. dington, 5 Q. B. D. 368, where the Room, 4 C. P. D. 226, and Carter principles which ought to guide the v. Stubbs, 6 Q. B. D. 1 1 6, in which Court in extending time are very cases there was an application on fuUy discussed by the Court of the part of the plaintiff to extend Appeal. the time for appeal, to which the (i) Whistler v. Hancock, 3 Q. B. Court attached great weight. D. 83 ; WaUis v. Hepburn, 3 Q. B. (c) Canadian Oil Works v. Hay, B.Si; Kingv.Davenport,iQ.B.T). 38 L. T. 549. N 2 ISO CHAPTEE XLVIII. APPLICATIONS IN CHAMBERS. Applications y^-^ have already seen that applications with reference pleadings and to pleadings Or procedure in Chancery actions may, in procedure. ■■,-,■, almost every mstance, be made by summons to the Judge in Chambers, and though it is usually provided by the rules that the application may he made either to the Court or a Judge, i.e., either on motion or sum- mons, it may be laid down as a. general rule that, in such cases, the application should be by summons, as the cheaper method, and that any person applying by motion, in such a case, does so at the risk of being saddled with the extra costs thus occasioned, even though successful (a). General Applications under the Judicature Acts and rules, applications. such as above adverted to, form a small part only of the business transacted in Chambers, which is of infinite variety : and it would, perhaps, not be too much to say that any application will, in the first instance, be entertained in Chambers, in the absence of any order, statute, or settled practice, requiring that it should be by motion, there being a growing disposition among the {a) Marriott v. Marriott, 26 13 Ch. D. 138, n. W. R 416 ; Chesterjidd v. Black, APPLICATIONS IN CHAMBERS. 181 Judges and their chief clerks to adopt the cheaper forms of procedure. The summons, which is intituled in the action, directs Consd. Order 35, rr. 5, 24. the parties to attend in Chambers at a specified time. Form of summons. and states the object of, and by whom, the application is made (6). It is prepared by the party making the application, or his solicitor, and is sealed by one of the clerks of the Judge to whom the action is assigned (c), who enters it in " The Summons and Appointment Book," and a copy of the summons must be left by the party obtaining it at the Judge's Chambers. The summons must be served two clear days before Consd. Order 35, r. 7. its return {a). Service. Upon the return of the summons the parties must Hearing of attend in Chambers before the Judge's chief clerk, who, (with few exceptions), hears the application in the first instance, but, in every case, any of the parties are en- titled, as a matter of right, to an adjournment to the Judge himself, who may, as he thinks fit, hear the sum- mons in Chambers or adjourn it into Court. The Attendance of practise as to the attendance of counsel in Chambers is not uniform, the Master of the Rolls and Vice- Chancellor Hall allowing their attendance, while Vice- Chancellors Malins and Bacon do not ; in no Chambers, however, are counsel entitled to attend before the chief clerk. (t) For Forms of Summons, see of th.T,t date, W. N. 81 (Misc.), App. No. 38. 144. (c) Even though the action has (d) Summonses originating pro- beentransferredfor hearing to Fry, ceedings, and certain applications J. (Order 51, r. la.), if not tried or specified in r. 4 of Consolidated heard by him before the 23rd of Order 35, must be served seven March, 1881. See Order of Court clear days before their return. 182 APPLICATIONS IN CHAMBERS. Consd. Order Where the summons is not disposed of upon the day 35, r. 14. Adjournment, of its return, the parties must attend from time to time, without further summons, at such times as may be appointed. Consd. Order The Judge may, either on the original or any ad- 3.5, rr. 10, 11. . a J' & J ^ Absence of journed hearing of the summons, proceed ex parte in hearing of the absence of any of the parties, in which case the summons. proceedings will not be reconsidered in Chambers, un- less the party failing to attend can, upon a special application to the Judge, explain his absence, in which case he may be required to pay the costs occasioned by his absence, before the proceeding is reconsidered, or the Judge may make any other order as to costs which may seem meet. Oonsd. Order The order on summons, when made, is drawn up by Drawing up the chief clerk or registrar, and is entered in the same and entering i , i jv> j j • order. manner, and the same omce, as orders made m open Court (e). Motion to dis- Any party to the summons may give notice of charge order. • i <. i t i • • • r^ motion before the Judge sitting in Court to dis- charge the order, as soon as it has been drawn up and entered. Under ordinary circumstances such notice should be given within twenty-one days, but the Judge can, on special grounds, enlarge the Appeal from time at his discretion (/). Any party wishing to appeal from an order made in Chambers should inform the Judge, so that he may either adjourn the case into Court, or deliver a judgment enabling the (e) As to drawing up and entry D. 243 ; Dickson's case, 12 Ch. D. of Orders, see ante, p. 128. 298. (/) Dickson v. Harrison, 9 Ch. APPLICATIONS IN CHAMBERS. 183 Court of Appeal to understand the reasons of the de- cision, but a certificate that the Judge requires no further hearing is not necessary to enable an appeal, if this can be shown aliunde (g). {ff) Thomas v. Elsom, 6 Ch. D. 346. 184 CHAPTER XLIX. Sect. I. Consd. Order 35, rr. 15, 22. Bringing judg- ment into Chambers. Conduct of proceedings. Order 52, r. 6a. Trustees to have conduct of sale. PKOCEEDINGS IN CHAMBERS UNDER JUDGMENT. Where accounts or inquiries have been directed by the judgment or order, or proceedings of any kind remain to be taken at Chambers, the party entitled to prosecute the judgment, or order, must, within ten days after it is passed and entered (a), bring an office copy, certified by him to be a true copy of such judgment, or order, as passed and entered, into the Chambers of the Judge to whom the action is assigned, and if he fails to do so, any other party to the action may bring in the judgment or order, and will thereupon obtain the con- duct of the proceedings, unless otherwise ordered. As a general rule the plaintiff is the person entitled to prosecute the judgment or order, but the matter is one wholly in the discretion of the Judge, who may, if he thinks proper, give the conduct to any other party (6). Where, in actions for administration, or for the execution of the trusts of a settlement, a sale of property vested in trustees upon trust for, or with (a) As to passing and entry, see (6) Darnell's Ch. P. 1082, el seq. ante, p. 128. PROCEEDINGS IN"* CHAMBEES UNDER JUDGMENT. 185 power of, sale, is ordered, the trustees will have the conduct of the sale, unless otherwise ordered. As soon as the certified office copy of the judgment Consd. Order or order is left at Chambers, a summons is issued to Summons to proceed with the accounts or inquiries directed, and upon the return of such summons the Judge, if satisfied that all necessary parties have been served with notice of the judgment or order (c), gives directions as to the mode in which the accounts and inquiries are to be prosecuted, the evidence to be adduced, the parties to attend, and the time within which each proceeding is to be taken, and a day is appointed for the further attendance of the parties. Any party appearing upon any application or proceed- Unauthorised . . appearance in ing in Chambers m which he is not interested, or which. Chambers, according to the practice of the Court, he ought not to attend, will not be allowed the costs of his attendance unless the Judge expressly allows them (d). Except on claims in administration actions by persons not parties to the action (e), all parties interested in the matters in question are entitled to attend the proceedings in Cham- bers as of course ; but, if they attend without special leave, they will not only be disallowed the costs of their attendance, but may even be ordered to pay any extra costs which their unnecessary attendance has occa- sioned (/). Where an account is directed by the judgment or Consd. Order order, the accounting party, unless otherwise directed, Account to be Ic) As to which, see ante, pp. (c) Astowhich, see;)oa<, pp,187, 27, 2S. 188. (d) Kulesof Court (Costs), 1875, (/) Slmrp v. Lush, 10 Ch. D. I. 21 ; Wilson, p. 467. *B8, 473. 186 PROCEEDINGS IN CHAMBERS UNDER JUDGMENT. verified by must verify his account by an affidavit referring to the " " account as an exhibit, and must leave the account at the Judge's Chambers. Gonad. Order Any party dissatisfied with the account, who desires Notice to dis- to dispute its accuracy, must give notice of his intention pu e aocoun . ^ ^-^^ accounting party, pointing out shortly the par- ticulars of his objection (g). 15 & 16 Vict. Any party may take the opinion of the Judge on Taking the any particular point or matter, arising in the course of JvK^e? ° t'lie proceedings before the chief clerk, at any time before he has signed his certificate. 15 & 16 Vict. The chief clerk, for the purpose of any proceedings c. 80,ss.30,31. ,. , , , X , 1 , , , n ■, ■ Powers o£ directed by the Judge to be taken beiore him, can issue advertisements, summon parties and witnesses; administer oaths, take affidavits and acknowledgments, receive affirmations, and, where directed by the Judge, examine parties and witnesses either upon interroga- tories, or vivd voce, as the Judge directs, the attendance of parties and witnesses being compellable in the ordi- nary manner — witnesses being liable to the ordinary penalties for false swearing. The examination is con- ducted in the same way as before an examiner, and the depositions authenticated by the signature of the chief clerk must be transmitted by him to the Filing and Eecord Department of the Central Office (h). (g) And see Woods v. Oliver, W. aminer, see 15 & 16 Vict. c. 86, N. 80, p. 51 ; Morgan, p. 148. s.32, et seq. ; Morgan, pp. 179, 180. {h) As to evidence before ex- CLAIMS. 187 Sect. II. CLAIMS. Where the persons interested under the judgment or Consd. Order order cannot be ascertained by evidence in the usual Advertise^ " manner, it is usual to issue an advertisement inviting ™^"*" them to come forward. The advertisement, which is prepared by the party prosecuting the judgment or order and signed by the chief clerk in token of his approval, must fix a time within which creditors are to send particulars of their claims to the executor or ad- ministrator or his solicitor, or, in the case of claimants, other than creditors, must fix a time within which they are to come in and prove their claim, and in the case of all claims by creditors, or otherwise the advertisement must appoint a day for their adjudication, on which day secured creditors are also required to bring in their securities. Claimants, who are not creditors, must enter their Consd. Order claims at Chambers in the " Claims Book," file an ^^^ of aflSdavit in support, and give notice to the solicitors ''^"^• of the cause within the time specified in the adver- tisement. Creditors need not now produce any evidence in sup- Creditors need . not prove port of their claim unless required to do so, but if the claims, debt is disputed by the executor or administrator, on whom is now thrown the onus of investigating the claims of creditors, he must give the creditor seven days' notice to attend and prove his claim. If the 188 CLAIMS. claim is allowed without proof, notice must be given of its allowance to the creditor (i). Order 16, r. In administration actions, no party to the action, ex- Only executor cept the exBcutor or administrator, wiU be allowed to attend on" attend, without special leave, either in Court or Cham- rfSaim '""^ bers, on the adjudication of any claim against the estate, by any person who is not a party to the action, in respect of any liability, but the Judge may direct any other party to the action to appear either instead of, or as well as, the executor or administrator. Consd. Order If the claims are not all disposed of on the day ap Adjoumment pointed for adjudication, an adjournment day may be tion. fixed, and, if further evidence is necessary, a time for its close may be fixed and directions given as to the mode in which it is to be taken. Consd. Order Any Subsequent claimant entering a claim, and filing Late claims, an affidavit in support, four clear days before the ad- journment day, is entitled to be heard on the adjourn- ment day, if no certificate of debts or claims has been made in the meantime. Sect. III. CHIEF clerk's certificate. 15 & 16 Vict. When all the accounts and inquiries have been taken Statement of and made and the claims, (if any), adjudicated upon, the accounts, &c. result of the proceedings is stated by the chief clerk in the form of a certificate. (i) Daniell's Oh. P. 1094, et seq. 157, et seq. Order, 27 Jlay, 18«5; Morgan, CHIEF clerk's certificate. 189 Accounts must not be set out at length in the cer- Consd. Order tificate, but only the result must be stated, by reference Accounts not to the accounts, which must be filed along with the certificate ; so also the judgment or order, and any r. 47. documents, evidence, or reasons, on which it is founded to be set out. must not, except under special circumstance, be set out, but only referred to suflSciently to show upon what the result of the certificate is founded (k). Any party who is dissatisfied with the certificate, and Consd. Order • 1 i^ X 1 1 • • ,. , -r 1 . 35, rr. 49, 50, Wishes to take the opinion or the Judge upon any point, 51. Takino" must, within four days from the date of the certificate opinion of being signed by the chief clerk, obtain a summons for cCTtmcate. that purpose ; if, at the expiration of the four days, no such summons has been obtained by any one, the cer- tificate is submitted to the Judge and, if approved by him, is thereupon signed and approved. When the certificate has been signed and approved 15 & 16 Vict, by the Judge, it is filed at the Central Office, and is Filing certi- thenceforth binding on all parties to the proceedings, unless discharged or varied, subject to power in the Court, under very special circumstances (l), to open the certificate. Applications to discharge or vaiy the certificate, which Consd. Order may be either by motion or summons, must be made Application to within eight days from the filing of the certificate. ^^^ oerti°' Where the action is ready for hearing on further con- *''**®- sideration, the summons or motion to vary, or discharge, the certificate is invariably adjourned to come on for hearing with the action on further consideration. (i) For form of certificate, see (0 Morgan, p. 130, and cases Darnell's Forms, 123.8. thpre cited, n. [z). 190 CHIEF clerk's certificate. Separate Where it is desirable that some particular account or inquiry shall be taken without delay, a separate cer- tificate will, in a proper case, be prepared at the request of any of the parties, but, in such case, any question arising out of the result of such separate certificate must be raised by summons or petition, it not being open to the parties to set the cause down on further consideration, till the general certificate has been filed {m). (m) DanieU's Oh. P. 1215. 191 CHAPTER L. FURTHER CONSIDERATION. No action can be set down on further consideration till Consd. Order „ , . . . . 21, r. 10. after the expiration of eight days from the filing of Time for the chief clerk's certificate, and if not set down by the party having conduct of the action within fourteen days from the date of such filing, it may be set down by any other party. The action is set down on further consideration on Production of written production to the Registrar's clerk of a written request request, &c. by the solicitor of the party desiring to set it down, and production of the judgment or order reserving further consideration, or an office copy, and an office copy of the chief clerk's certificate, or a memorandum fi:om the Central Office of the date when the certificate was filed. The action is not to be put in the paper, except by N°*?<=^ "J ^ X- jr ' r J setting down. consent, till ten days after it has been set down, and at least six days' notice, previous to its coming into the paper, must be given to the other parties to the action, and to all persons served with the judgment or order, or who have obtained liberty to attend the proceedings (a). (a) Rees v. George, 15 Ch. D. 490. 192 FUUTHER riONSIDERATION. Notice to use If any party is desirous of usinff, on the hearing on evidence taken J f J b'^ & before chief further consideration, any of the evidence taken before clerk. . . . , ~, the chief clerk, he must give notice to that effect to the other side, as, according to the settled practice, neither party is entitled to read such evidence on further con- sideration without previous notice (6). Where an order for accounts has been made under Order 15, any matter required on further consideration as to costs may be proved by affidavit (c). Before the action comes on, a copy of the judgment or order, adjourning further consideration, of the chief clerk's certificate, and of any intermediate orders or certificates, must be left with the usher, for the use of the Court. (6) Jones v. Chmnell, 8 Ch. D. (c) Beamy v. Elliott, W. N. 80, 492, 506. p. 99. 193 APPENDIX OF FORMS. 187 [Here put the letter and numbet], (No. 1.) In the High Court of Justice. ^^^_ Chancery Division. [Name of Judge.] (In the matter of the estate of X. Y. Z., deceased (a).) Between A. B., Plaintiff, and C. D. and E. F., Defendants. Victoria, by the Grace of God, &c. To C. D. oi , in the connty of , and E. F., of We command you that within eight days after the service of this writ on you, inclusive of the day of such service, you do cause ah appearance to be entered for you in the Chancery Division of our High Court of Justice, in an action at the suit of A. B. ; and take notice that in default of your so doing, the plaintiff may proceed therein, and judgment may be given in your absence. Witness, Sfc. Memorandum to he subscribed on the writ. N.B. — This writ is to be served within {twelve) calendar months from the date thereof, or if renewed from the date of such renewal, including the day of such date, and not, afterwards. The defendant {or defendants) may appear thereto by entering an appearance {or appearances) either (o) If the action is one for ad- should be added to the title of ministration, the words in brackets the writ. Wilson, 340. 194 APPENDIX OF FORMS. personally or by solicitor at the ( ofiB.ce at ) Indorsements to be made on the writ before issue thereof. The plaintiff's claim is for, ^c. This writ was issued Tsy E. F., oi , solicitor for the said plaintiff wTio resides at or, this writ was issued by the plaintiff in person who resides at (mention the city, town, or parish, jxnd also the name of the street and number of the house of the plaintiff's residence, if any). Indorsement to be made on the tvrii after service thereof. This writ was served by X. Y. on L. M. (the defendant or one of the djefendaaits) on Monday, the day of , 18 . (Signed) X. Y. (No. 2.) Indorsement of writ in creditor's ad- ministration action. The plaintiff's claim is as a creditor of X. Y.,oi , deceased, suing on behalf of himself and all other creditois, to have the (real and) personal estate of the said X, Y. ad- ministered (and for an account (&)). The defendant C. D. is sued as tihe administrator •of the said X. Y. (and the de- fendants K F. aad G. H. as his co-heirs at law). (No. 3.) Indorsement of writ in legatee's ad- ministration action. The plaintiff's claim is as a legatee under the will, dated the day of , 18 , of X. Y. deceased, to have the (real and) personal estate of the said X. Y. administered (and for an account (c)) (and for a receiver {d)). The defendant C. D. i^ sued as the executor of the said X. Y, (and the said E. F. and G. H. as the devisees). (5) If it is desired to proceed by summons under Order 15, the words in brackets must be in- serted. (c) See last note. (d) If it ia desired to move for a receiver or injunction before de- livery of the statement of claim the words in brackets should be inserted. APPENDIX OF FORMS. 195 The plaintiff's claim is to have an account taken of the (No. 4.) partnership dealings between the plaintifif and defendant, ^ ^tX^''' under articles of partnership, dated the day of , partnership 18 , and to have the affairs of the partnership wound up (and for a receiver and injunction (e)). The plaintiff's claim is to have an account taken of what (No. 5.) is due to him for principal, interest, and costs, on a mort- o"^^;^*" gage dated the day of , made between (par- foreclosure ties), (or by deposit of title-deeds), and that the mortgage *''"°°* may be enforced by foreclosure or sale. The plaintiff's claim is to have an account taken of what, (No. 6.) if anything, is due, on a mortgage, dated , and made J^^rftX™* between {parties), and to redeem the property comprised redemptii therem. action. The plaintiff's claim is that the sum of £ , which by (No. 7.) ., ., ,1,1 -jj Indorsement an mdenture of settlement, dated , was provided ^f ^^^t in for the portions of the younger children of , may action to raise , . , ^ ^ portions, be raised. The plaintiff's claim is to have the trusts of an indenture (No. 8.) dated , and made between (parties) carried into o^i^t^i^^" execution (and for an account (/)) {and for a receiver {g)). action for execution of trusts of settlement. The plaintiff's claim is to have a deed dated and made (No. 9.) . , . , . •£ J Indorsement between {parties) set aside or rectiUed. ^f ^^.jt ;„ action for , , _ ^ . , J, rectification of (e) See ante, note (d). (?) See ante, note (d). ^^^j^ (/) See ante, note (6). o2 1% APPENDIX OF FORMS. (No. 10.) Indorsement of writ in action for specific , performance. The plaintiff's claim is for specific performance of an agreement, dated the day of , for the sale by the plaintiff' to the defendant of certain (freehold) heredita- ments at (No. 11.) Writ for service out of the jurisdic- tion, or for notice in lieu of service out of the juris- diction. 187 \Here put the letter and numier]. In the High Court of Justice. Chancery Division. [Name of Judge."] Between A. B., Plaintiff, and C. D. and E. F., Defendants. Victoria by the Grace of God, ^c. To G. D., of We command you C. D., that within (Jiere insert the number of days directed by the Court or a Judge ordenng the service or notice) after the service of this writ (or notice of this vn-it, as the ease may be) on you, inclusive of the day of such service, you do cause an appearance to be entered for you in the Chancery Division of Our High Court of Justice, in an action • at the suit of A. B., and take notice that in default of your so doing, the plaintiff may proceed therein, and judgment may be given in your absence. Witness, ^c. Memorandum and Indorsement as in Form No. 1. Indorsement to be made on the writ before the issue thereof. N.B. — This im'it is to be used where the defendant, or all the defendants, or one or more defendant, or defendants, is or are out of the jurisdiction. APPENDIX OF FORMS. 197 187 \Here put tlie letter and number]. (No. 12.) -r, ^. A n -6} ■ .^-tv Naice of writ Between A. B., Plamtm, in yeu of ajj(J service out of a D., E. F., and G. H., Defendants, tion^""^'"' To G. H., of Take notice that A. B., of , has commenced an action against you, G. H., in the Chancery Division of Her Majesty's High Court of Justice in England, by writ of that Court, dated the day of , a.d. 187 , which writ is indorsed as follows {copy in full the inclorse- ments), and you are required within days after the receipt of this notice, inclusive of the day of such receipt, to defend the said action by causing an appearance to be en- tered for you in the said Court to the said actiou, and in default of your so doing, the said A. B. may proceed therein, and' judgment may be given in your absence. You may appear to the said writ by entering an appearance personally, or by your solicitor at the ( at (Signed) In the High Court of Justice. Chancery Division. the ( ) office A. B., of , (J-c. or X. Y., of ,<5-.. Solicitor for A. B. In the High Court of Justice. (No. 13.) Chancery Division. "^"^^T [Name of Jitdge.] writ. Between A. B., Plaintiff, and C. D., Defendant. Seal renewed writ of summons in this action indorsed as follows : — {Copy original wit and the indorsements). 198 APPENDIX OF FORMS. (No. 14.) 187 [Here put the letter and number]. Memorandum ^t- i /^ i^ f -r i.- of appearance. High Court of Justice. Chancery Division. [Name of Judge."] A. B. V. G. D. and others. Enter an appearance for in this action. Dated this day of X. Y., Solicitor for the Defendant. The place of business of X. F. is • . His address for service is Or, CD., Defendant in person. The address of C. D. is His address for service is The said defendant (requires or does not require) a state- ment of complaiut to be (filed and (A)) delivered. (No. 15.) 1875. B. No. Memorandum j^ the High Court of Justice. for entry of ^, -r-,- . . special case. Chancery Division. [Name of Judge.] Between A. B., Plaintiff, and G. D. and otliers. Defendants. Set down for argument the special case filed in this action on the day of , 187 . X. T., Solicitor for {h) The only case in which it is fore, that the words in brackets necessary to file the statement of were inserted inadvertently in the claim is where the defendant does form, not appear. It would seem, there- APPENDIX OF FORMS. 199 1876. B. No. 233. (No. iSa.) In the High Court of Justice. oMmZld' Chancery Division. ministration. [Name of Judge.] Writ issued 22nd December, 1876. In the matter of the estate of A. B., deceased. Between E. F., Plaintiff, and G. H., Defendant. Statement of Claim. 1. A. B. of K., in the county of L., died on the 1st of July, 1875, intestate. The defendant G. H. is the adminis- trator of A. B. 2. A. B. died entitled to lands in the said county for an estate of fee simple, and also to some other real estate and to personal estate. The defendant has entered iato possession of the real estate of A. B., and received the rents thereof. The legal estate in such real estate is outstanding in mortgagees under mortgages created by the intestate. 3. A. B. was never married; he had one brother only, who predeceased him without having been married, and two sisters only, both of whom also pre-deceased him — ^namely, M. N. and P. Q. The plaintiff is the only chUd of M. N., and the defendant is the only child of P. Q. The plaintiff claims : — 1. To have the real and personal estate of A. B. administered in this Court, and for that purpose to have aU proper directions given and accounts taken. 2. To have a receiver appointed of the rents of his real estate. 3. Such further or other relief aa the nature of the case may require. 200 APPENDIX OF FORMS. (No. 16b.) ' 1876. B. No. 233. defender* "^ ^^ *^« ^igli Court of Justice. Chancery Division, [Name of Judge.] In the matter of the estate of A. B., deceased. Between E. F., Plaintiff, and G. H., Defendant. Statement of Defence. 1.. The plaintiff is an iUegitimate child of M. N. She was never married. 2. The intestate was not entitled to any real estate at his death, except a copyhold estate situate in the county of R., and held of the manor of S. According to the custom of that manor, when the copyholder dies without issue and without leaving a brother or issue of a deceased brother, the copyhold descends to his elder sister, and her issue, in prefer- ence to his younger sister, and her issue. P. Q. was older than M. N. 3. The personal estate of A. B. was not sufficient for the payment of his debts, and has all been applied in payment of his funeral and testamentary expenses and part of his debts. (No. 16c.) 1876. B. No. 233. ^P^y- In the High Court of Justice. Chancery Division. [Name of Judge.'] In the matter of the estate of A. £., deceased. Between E. F., Plaintiff, and G. H., Defendant. Reply. The plaintiff joins issue with the defendant upon his defence. APPENDIX OF FORMS. 201 In the High Court of Justice. 1878. A. No. 1. (No. 17a.) (i). Chancery Division. ^7^°' [Name of Judge.] specific Writ issued 1878. performance. Between A. B., Plaintiff, and 0. D., Defendant. Statement of Claim. 1. In and previously to the month of Juno, 1877, the plaintiff was absolutely entitled to a certain freehold mes- suage, being No. , in the county of 2. By an agreement in writing, dated the 24th of June, 1877, and made between the plaintiff of the one part, and the defendant of the other part, the defendant contracted with the plaintiff for the purchase of the said messuage for the sum of £, 3. The plaintiff has frequently applied to the defendant, and requested him to perform the said agreement, but the defendant refuses to do so. 4. The plaintiff is and has always been ready since its execution to perform the said agreement. The plaintiff claims : — 1. Specific performance of the said agreement of the 24th of June, 1877. 2. Such further or other relief as the nature of the case may require. In the High Court of Justice. 1878. A. No. 1, (No. 17b.) Chancery Division. c'^o^nterdaS^. [Name of Judge.] Between A, B., Plaintiff, and G. D., Defendant. Statement of Defence and Counterclaim. 1. By the agreement of the 24th of June, 1877, in the statement of claim mentioned, it was agreed that the (i) This form is not taken from the schedule to the Act, but is original. 202 APPENDIX OF FORMS. defendant should be let into possession of the premises therein comprised on the 1st of September, 1877. 2. Shortly after the execution of the said agreement the defendant discovered, according to the fact, that the plaintiff had agreed with one X. Y., the then tenant of the premises, ■whose lease expired on the 24th of June, 1877, for a renewal of his lease for a further term of six months. 3. On discovering the agreement with the said X. Y,, which rendered it impossible for the plaintiff to deliver up possession to the defendant on the day named in the agree- ment, the defendant notified to the plaintiff his refusal, and the defendant, under the circumstances hereinbefore appear- ing, still refuses, to perform the said agreement. 4. The defendant denies that the plaintiff is or ever has been ready and willing, or that it has ever been in the power of the plaintiff, to perform the said agreement of the 24th of June, 1877. And by way of counterclaim the defendant repeats para- graph 2 of his defence (k), and states as foUows : — 1. The defendant has for many years past carried on business at a large profit as a grocer at No. , in the county of , which premises he held under a lease which expired on the 29th of September, 1877. 2. Towards the expiration of the said lease, of which the defendant was unable to obtain a renewal, the defendant being desirous of continuing his business in the same locality, entefed into negotiations for the purchase from the plaintiff of certain freehold premises in the same street, being No. ; and in the course of such negotiations he explained to the plaintiff that it was absolutely necessary that he should obtain actual possession of the said premises before the 29th of September, 1877, to which the plaintiff fully assented. 3. In pursuance of his agreement with the plaintiff the said X. Y. continued in possession of the said premises till the 25th of December, 1877, thereby rendering it impossible ;for (k) As to the sufficiency of a defence see ante, p. 48, and cases reference to facts pleaded in the there cited, nn. (g) (k). APPENDIX OF FORMS. 203 the plaintiff to deliver up possession, to th.e defendant on the day named in the said agreement of the 24th of June, 1877. 4. The contract entered into by the defendant with the plaintiff was a most advantageous one to the defendant, for whose business the premises were well adapted. 5. Not being able to obtain possession from the plaintiff of the said premises on the day named in the agreement, the defendant was obliged, in order to prevent the entire loss of his business, to take a lease, at an excessive rent, of pre- mises, of an inferior description to those of the plaintiff, in another neighbourhood, and his business has greatly suffered in consequence. The defendant claims : — 1. Rescission of the said agreement of the 24th of June, 1877. 2. £ damages for the breach by the plaintiff of the said agreement. 3. Such further or other relief as the nature of the case may require. 1878. A. Ko. 1. (No. 17c.) In the High Court of Justice. ^^m^ Chancery Division. defence and [Name of Judge.] counterclaim. Between A. B., Plaintiff, and C. D., Defendant. Eeply. The plaintiff joins issue with the defendant on his defence, and in reply to the statements alleged by him by way of counterclaim, the plaintiff says as f oUows : — 1. During the negotiations between the plaintiff and defendant for the sale of the premises. No. , and prior to the execution of the said agreement of the 24th of June, 1877, the plaintiff informed the defendant that the premises were subject to an agreement with the said X. Y. for a renewal of his lease for a further term of six months, 204 APPENDIX OF FORMS. but the defendant, being very anxious to obtain the premises, said -that he would purchase them notwithstanding, and would take his chance of being able to buy up the interest of the said X. T. The defendant also told the plaintiff that, as he was certain to come to terms with the said X. Y., no notice of the agreement with him need be taken in the agreement for sale. 2. The plaintiff denies that the defendant ever in the course of the negotiations said that actual possession of the premises on the 1st of September, 1877, would be absolutely necessary. The defendant well knew that unless he succeeded in buying out the said X. T., actual possession could not be delivered up till the 25th of December, 1877, and contracted on that basis alone. 3. Save as hereinbefore appears the plaintiff denies that it was agreed that the defendant should be let into possession of the said premises on the 1st of September, 1877. 4. The plaintiff under the circumstances hereinbefore appearing denies that the defendant discovered the agreement with the said X. Y., shortly or at any time after the execu- tion of the said agreement of the 24th of June, 1877. The plaintiff does not admit that the defendant was obliged, in order to prevent the entire loss of his business, or from any other cause, to take, or that he did in fact take, a lease, at an excessive rent, of premises of an inferior description to those of the plaintiff, in another neighboiirhood, nor does he admit that the defendant's business has suffered either greatly or at all in consequence or in fact. Brejninder. 1878. A. No. 1, (No.^l7d.) In the High Court of Justice. Chancery Division. [Name of Judge.] Between A. B., Plaintiff, and C. D., Defendant. Rejoinder. The defendant joins issue with the plaintiff upon his reply to the defendant's Qounterclaim. APPENDIX OF FORMS. 205 1878. B. No. 2. In the High Court of Justice, Chancery Division. [Name of Judge.] Writ issued , 1878. Between A. B., Plain tifif, and C. D., Defendant. Statement of Claim. 1. In the month of September, 1877, the plaintiff applied to the defendant for a lease of certain premises at , which were then much out of repair. 2. By an agreement dated the 29th of September, 1877, and made between the defendant of the one part, and the plaintiff of the other part, it was agreed that the plaintiff should restore the said premises and put them in thorough repair, and that on completion of the said repairs the defendant should grant the plaintiff a lease of the said pre- mises for the term of years at the rate of £ 3. The plaintiff on the 1st of October, 1877, entered upon the said premises and commenced work under the said agreement, and duly proceeded with the repairs until the 1st of January, 1878, when the defendant, without assigning any reason for so doing, gave the plaintiff notice to cease working under the said agreement, and obliged him to quit the premises, and the defendant has, since the 1st of January, 1878, up to the present time, refused to allow the plaintiff or his workmen access to the said premises for the purpose of completing the said repairs, though constantly applied to by the plaintiff to do so, or to grant him a lease of the said premises. 4. The plaintiff has expended under the said agreement sums amounting in the whole to the sum of £ , and has also incurred considerable loss through the defendant's delay in granttog him a lease of the said premises. (1) This form is not taken from case of Turner v. Hednesford Qas the schedule to the Act, but is Co., 3 Ex. D. 145. original, being suggested by the (No. 18a.) (I) Statement of claim for ! per- formance and 206 APPENDIX OF FORMS. 5. The plaintiff is ready and willing on his part to perform the said agreement. The plaintiff claims : — 1. Specific performance of the said agreement of the 29th September, 1878. 2. £ damages. 3. Such further or other relief as the nature of the case may require. (No. 18b.) Statement of defence and counterclaim plaintiff and third party. 1878. B. No. 2. In the High Court of Justice. Chancery Division. [Name of Judge.] Between A. B., Plaintiff, and C. D., Defendant (by original action) ; And between the said C. D., Plaiutiff, and the said A. B. and E. F., Defendants (by counterclaim). Statement of Defence and Counterclaim. 1. By the agreement in the statement of claim mentioned, the plaintiff covenanted to do the repairs therein mentioned in a proper and workmanlike manner, employing the best materials, and also to use due despatch in their completion, and it was provided that if he should fail in any respect to perform the said agreement, the defendant C D. might thereupon put an end to the agreement by notice in writing. 2. The defendant C. D. having discovered, according to the fact, that the work under the agreement was being done so inefficiently, and such bad materials were being used, that the premises would not, when the repairs were finished, be fit for habitation, and that the work was only proceeding at irregular intervals, on the 1st of January, 1878, in pursuance of the power in that behalf in the agreement contained, put an end to the said agreement by notice in writing, after APPENDIX OF FORMS. 207 having several times in vain cautioned the plaintiff that he was not carrying out his part of the agreement. Under the above circumstances, but not further or other- wise, the defendant G. D. admits that he has obliged the plaintiff to quit the premises, and has since the 1st of January up to the present time refused to allow the plaintiff or his workmen access to the said premises for the purpose of completing the said repairs, or to grant him a lease of the said premises. 3. The defendant C. D. denies that the plaintiff has expended under the said agreement sums amounting in the whole to the sum of .£ or anything like that amount, or that he has iacurred considerable or any loss through the delay of the defendant C. D. in granting him a lease of the said premises. And by way of counterclaim the defendant C D. repeats paragraphs 1 and 3 of his defence (m), and states as follows: — 1. On the same 29th of September, 1877, the defendant E. F. executed to the defendant G. D. a bond, in a penalty of £ , conditioned for the due performance by the plaintiff of the said agreement of the 29th of September, 1877. 2. The whole of the work done by the plaintiff, has, in order to render the premises fit for habitation, had to be pulled down ot effaced at a considerable expense, and the defendant G. D. has been obliged to expend the sum of £ in completing the said repairs, being a sum far ia excess of what they would have cost if the repairs had been properly carried on from their commencement. The defendant G. D. claims : — 1. £ damages. 2. Such further or other relief as the nature of the case may require. (m) As to the sufficienoy of a defence see ante, p. 48, and cases' reference to facts pleaded in the there cited, nn. (g) (A). 208 APPENDIX OF FORMS. (No 18c.) 1878. B. No. 2. Keply to ■ , ^ , defence and In the High. Court of Justice, counterclaim. Chancery Division. \_Name of Judge-I Between A. B., Plaintiff, and (7. D., Defendant (hy original action) ; And between the said G. D., Plaintiff, and the said A. B. and K F., Defendants (by counterclaim). Reply. The plaintiff joins issue with the defendant C. D. on his defence, and in reply to the statements alleged by the defendant G. D. by way of counterclaim the plaintiff and the defendant E. F. say as follows : — 1. The plaintiff and the defendant E. F. deny that the plaintiff commenced or carried on the repairs in an improper or unworkmanlike manner or employed bad materials, or that he did not use due despatch in their completion, but only proceeded with the work at irregular intervals. 2. The plaintiff never made any default under the said agreement from the day of its date up to the 1st of January, 1878, but duly performed the said agreement in every par- ticular, and the plaintiff and the defendant E..F, deny that under these circumstances the said agreement was or could be put an end to by the defendant G. D. 3. The plaintiff and the defendant E. F. deny that the whole or any part of the work done by the plaintiff had to be pulled down or effaced in order to render the premises fit for habitation, either at a considerable expense, or in fact ; some small portion of the work done was as a fact effaced at a very trifling cost, but there was no necessity for this being done. 4. The plaintiff and the defendant E. F. do not admit APPENDIX OF FOEMS. 209 that the plaintiif has been obliged to expend, or has in fact expended, the sum ot £ , or any sum, in completing the said repairs. 1878. B. No. 2. (No. 18d.) , ._..,_, , , _ ,. Rejoinder on In the High Court of Justice. reply to Chancery Division. counterclaim. [Name of Judge.^ Between A. B., Plaintiff, aild C. D., Defendant (by original action) ; And between the said G. D., Plaintiff, and the said A. B. and E. F., defendants (by counterclaim). Eejoinder. The defendant C. D. joins issue with the plaintiff and the defendant E. F. on their reply to his counterclaim. In the High Court of Justice. (No. 19.) Chancery Division. ConfeBsion of /. ,1 defeuoe, [Naine of Judge.] Between A. B., Plaintiff, and a D., Defendant. The plaintiff confesses the defence stated in the paragraph of the defendant's statement of defence (m- of the defendant's further statement of defence). To the witness named X F. (No. 20.) Take notice that if you do not appear to the within |^°*^;^^^„j counterclaim of the within-named G. D., within eight days on counter- from the service of this defence and counterclaim upon you, <=!»•'" ag™«* 210 APPENDIX OF FOKMS. plaintiff along you will be liable to have judgment given against you in with other •, persons. Jora absence. Appearance to be entered at (No. 21.) Notice by defendant to third party. 187 [Here put the letter and number]. Notice filed , 187 In the High Court of Justice. Chancery Division. [Name of Judge.] To Mr. X. Y. Between A. B., Plaintiff, and G. D., Defendant. Take notice that this action has been brought by the plaintiff against the defendant (as surety for M. N.), upon a bond conditioned for payment of £2000 and interest to the plaintiff. The defendant claims to be entitled to contribution from you to the extent of one-half of any sum which the plaintiff may recover against him on the ground that you are (his co-surety under the said bond ; or, also surety for the said M. N., in respect of the said matter under another bond made by you in favour of the said plaintiff, dated the day of , A.D. ). Or, (to recover damages for a breach of a contract for the sale and delivery to the plaintiff of 1 000 tons of coal. The defendant' claims to be indemnified bj you against liability in respect of the said contract, or any breach thereof, on the ground that it was made by him on your behalf and as your agent). And take notice that if you wish to dispute the plaintiff's claim in this action as against the defendant G. D., you must cause an appearance to be entered for you within eight days after service of this notice. In default of your so appearing you will not be entitled in any future proceeding between the defendant C. D. and APPENDIX OF FORMS, 211 yourself, to dispute the validity of the judgment in this action, whether obtained by consent or otherwise. (Signed) E. T. or, X. T., Solicitor for the defendant E. T. Appearance to be entered at 1875. B. No. In the High Court of Justice. Chancery Division, [Name of Judge.^ A. B. V. a D. Take notice that the defendant has paid into Court £ , and says that that sum is enough to satisfy the plaintiff's claim (or the plaintiff's claim for, &c.). To Mr. X. Y., The plaintiff's solicitor. Z., Defendant's solicitor. (No. 22.) Notice of payment into Court. 1875. B. No. In the High Court of Justice. Chancery Division. \Name of Judge.] A. B. V. C. D. Take notice that the plaintiff accepts the sum of £, paid by you into Court in satisfaction of the claim in respect of which it is paid in. (No. 23.) Notice of acceptance of sum paid into Court. In the High Court of Justice. Chancery Division. \_Name of Judge,] A. B. v. C. D. The defendant (plaintiff) demurs to the (plaintiff's state- ment of complaint or defendant's statement of defence, or p2 (No. 24.) Demurrer. 212 APPENDIX OF FORMS. of set-otf, or of counterclaim) {or to so much of the plain- tiffs statement of complaint as claims . . . . o?*, as alleges as a breach of contract, the matters mentioned in paragraph seventeen, or as the case may be) and says that the same is bad in law on the ground that {here state a ground of demurrer) and on other grounds sufficient in law to sus- tain tMs demurrer. (No. 25.) Memorandum of entry of demurrer. In the High Court of Justice. Chancery Division. [Name of Judge.] A. B. V. C. D. Enter for the argument the demurrer of X. 7., Solicitor for the plaintiff {or, ^c). (No. 26.) Interroga- tories. 1874. B. No. In the High Court of Justice. Chancery Division. [Name of Judge.] Between A. B., Plaintiff, and €. D., E. F., and G. H., Defendants. Interrogatories on behalf of the above-named {plaintiff, or defendant G. D.) for the examination of the abo,ve-named {defendants E. F. and G. H.^ or plaintiff). 1. Did not, ^c. 2. Has not, ^c. {The defendant E. F. is required to answer the interro- gatories numbered .) {The defendant G. H. is required to answer the interro- gatories numbered .) APPENDIX OF FORMS. 213 1874. B. No. (No. 27.) In the High Court of Justice. A^;^:^2f Chancery Division. tories. [Nmne of Judge.] Between A. B., Plaintiff, and G. D., E. F., and G. H., Defendants. The answer of the above-named defendant E. F., to the interrogatories for his examination by the above-named plaintiff. In answer to the said interrogatories, I, the above-named E. F., make oath and say as follows : 1874. B. No. jNo. 28.) tice. [Name of Judge.] In the High Court of Justice. Affidavit as to . . documents. Chancery Division. Between A. B., Plaintiff, and C. D., Defendant. I, the above-named defendant G. B., make oath and say as follows : — 1. I have ia my possession or power the documents re- lating to the matters in question in this suit, set forth in the first and second parts of the schedule hereto. 2. I object to produce the said documents set forth in the second part of the said first schedule hereto. 3. (Here state upon what grounds the objection is made and verify the acts as far as may he). 4. I have had, but have not now, in my possession or power, the documents relating to the matters in question in this suit set forth in the second schedule hereto. 5. The last-mentioned documents were last in my posses- sion or power on {state when). 6. That {here state what has become of the last-mentioned documents, and in whose possession they now are). 214 APPENDIX OF FORMS. (No. 29.) Notice to produce docaments. 7. According to the best of my knowledge, information, and belief, I have not now and never had in my possession, custody, or power, or in the possession, custody, or power of my solicitors or agents, solicitor or agent, or in the posses- sion, custody, or power of any other persons or person on my behalf, any deed, account, book of account, voucher, letter, receipt, memorandum, paper, or writing, or any copy of or extract from any such document, or any other document whatsoever relating to the matters in question in this suit, or any of them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set forth in the said first and second schedules hereto. In the High Court of Justice. Chancery Division. [Name of Judge.] A. B. V. a D. Take notice that the {plaintiff or defendant) requires you to produce for his inspection, the following documents re- ferred to in your (statement of daim or defence, or affidavit, I the day of , A.D. ). {Describe documents required.) X. Y., Solicitor to the ToZ., Solicitor for • (No. 30.) Notice toj inspect documents. In the High Court of Justice. Chancery Division. \Name of Jvdge.] A. B. V. C. D. Take notice that you can inspect the documents mentioned in your notice of the day of , a.d. {except the in that notice), at my office on Thurs- APPENDIX OF FORMS. 215 day next, the instant, between the hours of 12 and 4 o'clock. Or, that the {plaintiff or defendant) objects to give you inspection of the documents mentioned in your notice of the day of , A.D. , on the ground that {state the g^-ound). In the High Court of Justice. (No. 31. > Chancery Division. N<)tif to " admit [^Nanie of Judge.] documents. A. B. V. G. D. Take notice that the plaintiff (w defendant) in this cause proposes to adduce in evidence the several documents here- under specified, and that the same may be inspected by the defendant {or plaintiff), his solicitor or agent, at , on , between the hours of , and ; and the defendant {or plaintiff) is hereby required within forty- eight hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed as they purport respectively to have been ; that such as are specified as copies are true copies, and such documents as are stated to have been served, sent, or delivered, were so served, sent, or deUvered respectively; saving all just exceptions to the admissibility of all such documents as evidence in this cause. Dated, &c. To E. F., Sohcitor {or agent), for defendant {or plaintiff). O. H., Solicitor {or agent) for plaintiff {or defendant). 216 APPENDIX or FORMS. (Here describe the documents, the manner of doing which may he as follows : — ) Originals. Description of Documents. Dates. Deed of covenant between A. B. and 0. D. first part, and E. F. second part .... Indenture of lease from A. B. io 0. D. Indenture of lease between A. B., C. D. first part, &c. Letter, defendant to plaintiff .... Policy of insurance on goods by ship " Isabella," on voyage from Oporto to London . Memorandum of agreement between C. D., captain of said ship, and E. F. Bill of Exchange for £100 at three months, drawn by A B. on and accepted by C. D., endorsed by E. P. and Q. H. . January 1, 1848. February 1, 1848. February 2, 1848. March 1, 1848. December 3, 1847. January 1, 1848. May 1, 1849. Copies. Description of Documents. Dates. Original or Duplicate, served, sent, or delivered, when, how, and by whom. Begister of baptism of A. B., in the parish of X. Letter, plaintiff to de- fendant .... Notice to produce papers . Becord of a judgment of the Court of Queen's Bench, in an action F, S. v.F.N. Letters Patent of King Charles II. in the Bolls Chapel .... January 1, 1848 February 1,1848 March 1, 1848. Trinity Term, 10th Vict. January 1, 1680. Sent by General Post, February 2, 1848. Served March 2, 1848, on defendant's at- torney by E. F, of APPENDIX OF FORMS. 217 In the High Court of Justice. (No. 32.) Chancery Division. ^"'^"^ °^ *"*'■ [Name of Judije.'] A. B. V. a D. Take notice of trial of this action (or of the issues in this action ordered to he tried) by a judge and jury (oj- as the case may be) in Middlesex (w) (or as the case may he) for the day of next. . . ^- ^•' Plaintiff's solicitor {or as the case may he). Dated, ToZ., Defendant's solicitor {or as the case may be). 1878. A. 1. (No. 33.) (o). In the High Court of Justice. Certificate of ° Registrar of Chancery Division. cause being [Name of Judge. ] ?'*'-''«4 *»' A. B. V. C. D. defendant's I certify that this action was entered for trial in the cause instance, book of the Chancery Division, on the day of , and that it has been this day marked " Jury trial at defend- ant's instance," in accordance with a notice given by the defendant under Order XXXVI., Eule 3, of the Eules of the Supreme Court. Dated the day of A. B., for the Senior Registrar. (») It is not necessary to specify (o) This form was prescribed the name of the Judge, even where by a Kegistrar's notice, issued in the action is to be tried before the February, 1877, for which sep Judge of the Chancery Division to W. N. 77 (Miscellaneous), p. 162 ; whom it is assigned : Hwrrii u. Wilson, 248. ComMe, 7 Ch. D. 887. 218 APPENDIX OF FORMS. (No. 34.) Praecipe for writ of sequestration. 187 . B. No. In the High Court of Justice. Chancery Division. [Name of Judge.] Between A. B., Plaintiff, and C. D. and Others, Defendants. Seal a writ of sequestration against G. D. for not at the suit of A. B., directed to (Names of Commissioners). Order, dated day of (p). (No. 35.) Precipe of a writ of attachment. 187 . B. No. In the High Court of Justice. Chancery Division. [Nam^ of Judge.] Between A. B., Plaintiff, and G. D. and Others, Defendants. Seal in pursuance of order dated day of , an attachment directed to the sheriff of against G. D. for (state nature of contempt). (No. 36.) Writ of attachments 187 . B. No. In the High Court of Justice. Chancery Division. [Name of Judge.] Between A. B., Plaintiff, and G. D. and Others, Defendants. Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. (p) Except in cases under re. 7 and 19 of Order XLII., no order is necessary to enable a writ of se- questration to issue, amte, p. 168, et ae^. APPENDIX OF FOEMS. 219 To tlie Sheriff of greeting. We command you to attach G. D., so as to have him before us in the Chancery Division of our High Court of Justice, wheresoever the said Court shall then be, there to answer to us as well touching a contempt which he it is alleged hath committed against us, as also such other matters as shaU be then and there laid to his charge, and further to perform and abide such order as our said Court shall make in this behalf, and hereof fail not, and bring this writ with you. Witness, &o. 187 . B. No. (No. 37.) In the High Court of Justice. ^^i^estation. Chancery Division. \Nam.e of Judge.] Between A. B., Plaintiff, and C. D. and Othei's, Defendants. Victoria, &c. (see No. 36). To (naines of not less than /our commissioners) greeting. Whereas lately in the Chancery Division of our High Court of- Justice, in a certain action there depending wherein A. B. is plaintiff and C. D. and others are defend- ants, by a judgment {or order, as the case may he) of our said Court, made in the said action, and bearing date the day of , 187 , it was ordered that the said C. D. should (pay into Court to the credit of the said action the sum ot ■£ ,01- as the case may be). Know ye therefore that we, in consequence of your prudence and fidelity, have given, and by these presents do give, to you, or any three or two of you, full power and authority to enter upon all the messuages, lands, tenements, and real estate whatsoever, of the said C. D., and to collect, receive, and sequester in to your hands, not only all the rents and profits of his said messuages, lands, tenements, and real estate, but also all his goods, chattels, and personal estates whatsoever ; and there- 220 APPENDIX OF FORMS. fore wc command you, or any three or two of you, that you do at certain proper and convenient days and hours, go to and enter upon all the messuages, lands, tenements, and real estates of the said G. D., and that you do collect, take, and get into your hands not only the rents and profits of his said real estate, hut also aU his goods, chattels, and personal estate, and detain and keep the same under sequestration in your hands until the said G. D. shall (pay into Court to the credit of the said action, the sum oi £ , or as the case may be) clear his contempt, and our said Court make other order to the contrary. Witness, &c. (No. 38.) 1881. B. 1. Summons. jn the High Court of Justice. Chancery Division. [Name of Judge.] Between A. B., Plaintiff, and C. D., Defendant. Let all parties concerned attend at my Chambers (state whei-e; as:) in the Rolls Yard, Chancery Lane, Middlesex, on the day of 188 , at o'clock in the noon, on the heaving of an applica- tion on the part of {state on "whose behalf the application is made); that {state the precise object of the application). Dated this day of 1881. George Jbssbl, Master of the EoUs, or [Name of Judge] Vice-Chancellor. This summons was taken out by A. B., of [address], solicitors for the applicant. To [insert the names of the solicitors or persons to be served with the summons.] INDEX. ABATEMENT, none, wtere cause of action survives, 155 revivor, order of, 156, 157 ACCOUNT, chief clerk's certificate, how stated in, 189 District Registrar cannot take, without leave, 161 indorsement of writ with claim for, 2 interrogatory asking for, disallowed, 83 motion, order for, on, 96 reference to Referee of question of, 118 summons, order for, on, 2, 18, 96 proceed with, to, 185 ADDRESS FOR SERVICE, defendant must give, in memorandum of appearance, 13 plaintiff must give, in writ, when, 3 ADMINISTRATION, admissions in pleadings, judgment for, on, 95 Chancery Division, actions for, assigned to, 20 creditor's action for, indorsement of writ in, 30 form of iudorsement of claim for, 194 pleadings, of, in action for, 199 parties to action for, 27 representative of heir-at-law, next of kin, or class, appointed in action for, 28 service of notice of judgment for, on beneficiaries, 27 summons, order for, on, 2, 18, 96 ADMINISTRATOR, ■ ^ ca joinder of personal claim, by or agamst, 24 represents next of kin ia action, 27 222 • INDEX. ADMISSION, benefit of, not lost by omission to move for judgment, 96 case of opposite party, of, by notice, 103 documents, of, 103 ; and see Dooumbnts. motion for judgment on, 95, 96 ; and see Motion tor Judgment. non-denial, by, 34 ; and see Pleadings. AFFIDAVIT, account, in support of summons for, 19 address of deponent in, 99 alterations in, how authenticated, 99 amend, in support of application for leave to, 77 belief, statement of, allojwable in, on motion, 99 Central Ofiiee, filed in, 98 consent, evidence may be taken by, by, 97 consent in writing necessary, 97 guardian ad litem competent to consent, 97 cross-examination of witness on, notice for, 99 costs of producing witness for, 100 effect of withholding witness from, 100 documents, of, 88 ; and see Pkoduction op Documents. form of, 213 echo of statement of claim ■w-ithout knowledge in, costs of, 99 file, not ordered to be taken off, 100 improper matter, costs of, in, 99 interrogatories, in answer to, 84 ; and see Interrogatories. form of, 212 knowledge of deponent, statements in, to be confined to, 99 motion, evidence on, must be by, 98 particular facts, order for proof of, by, where evidence taken mvd voce, 100 unless cross-examination is required, 101 printing, for use at hearing, 100 for use of Court of Appeal, by order, 147 refusal to make, mode of procedure in case of, 97, 101 reply, in, not confined to cutting down defendant's evidence, 98 service, of, 8 out of jurisdiction, in support of application to allow, 9 ; and se« Service. substituted, in support of application to allow, 6 time for filing, where evidence taken by, 98 ALTERATION OF PAKTIES, adding defendant, in case of alternative claims, 72 against wish of plaintiff, 72 adding plaintiffs, not to give defendant additional security for costs, 72 not where plaintiff has no right of action, 72 trustee of bankrupt plaintiff, added as co-plaintiff, 72 amendment of statement of claim on adding defendants, 74 hond fide mistake, on, 70 INDEX. ■ 223 ALTERATION OF 'PASTIES— continued. change of interest by death, marriage, &c., adding parties on, 156, 157 appearance of new parties, 158 appointment of guardian ad litem, 157 discharging order, 157 order of course, by, 156 consent, plaintiff or next friend not added without, 72, 73 ex parte, application for, must not be, 73 new writ necessary on adding defendants, 73 postponement of trial on, 73, 75 striking out defendant, after delivery of defence, 71 against wish of plaintiff, 71 summons, application to be by, 73 tinie for application for, 73 AMENDMENT, affidavit, application for leave for, to be supported by, 77 close of evidence, allowed after, 77 costs of application as to, to follow result, 79 summons only, of, allowed, 79 counterclaim, of, 76 Court of Appeal, powers of, as to, 145 will not lightly interfere as to, 78, 79 date of, to be marked on pleading, 80 defence, leave necessary for, of, 79 even after amendment of statement of claim, 80 delivery of amended pleadings, time for, 80 default renders order void, 80 demurrer pending, leave necessary for, 68, 76 disaUowing, 79 exclusion by, where causes of action inconveniently joined, 22, 24 counterclaim, of, 50 ; and see Counterclaim. hearing, at, 77 indorsement of claim, of, 2 unnecessary after statement of claim delivered, 2 information, action turned into, by, 78 notice of appeal, o:^ 137 printing of, when necessary, 80 statement of claim, of, 75, 76 adding defendants, on, 74 striking out scandalous or embarrassing matter, 43, 78 alternative claim not struck out, 79 non-compliance with order for discovery, on, 85, 91 pleading stating evidence and prohx, 78 statements of law, 78, 79 whole statement of claim, 43, 78 whole reply, 78 time for, 76, 77 writ of summons, ot, 1, // ,„.,-• t *• o on adding defendants out of the jurisdiction, 2 224 INDEX. APPEAL, adjournment of, to add respondents, 138 in absence of notice of cross-appeal, 139 amendment, powers of Court o:^ as to, 145 discretion of Court below as to, not lightly interfered with on, 78,79 chambers, appeal from order made in, 182 consent, order or judgment, by, not allowed from, 148 costs of, in discretion of Court, generally follow event, 148 abandoned appeal, of, 140 as to, leave necessary, 148 cross appeal, notice of, 138 discontinuance, vacated by, 63 dismissal of, where not set down in time, 139 failure to give security for costs, on, 144 non-appearance of appellant, on, 140 District Registrar, from, 164 evidence, how brought before Court of, 147 shorthand notes to be discouraged, 147 final judgment or order, from, length of notice, 142 time for, 142 fresh case cannot be raised on, 145 further evidence on, 146 leave for, granted at hearing of, when, 146 ex parte appBcation, from refusal of, 143 interlocutory order, from, time for, 140 further evidence admitted without leave on, 146 length of notice of, 138 what orders are, 141, 142 judgment or order on, 148 new trial may be ordered on, 148 notice of motion, brought by, 137 amendment of, 137 part of judgment or order, from, 137 refusal of application or dismissal of action, from, time for, 140, 142 rehearing, to be by way of, 137 respondents on, 138 security for costs, when required on, 143 application out of Court for, 144 not ordered after costs incurred, 144 setting down, time for, 139 production to Eegistrar of judgment and notice of appeal on, 139 production of order unnecessary on appeal from refusal, 139 stay of execution or proceedings pending, order necessary for, 144 order not made ex pa/rte, 145 pending appeal to House of Lords, 145 terms of order, 145 time for, ] 40, 142 extension of, when allowed, 142 trustee, by, as to costs not allowed, 149 INDEX. 225 APPEARANCE, address for service in memorandum of, 13 attachment of solicitor on default in entry of, 15 counterclaim, by third party named as defendant to, 49 district registry in, 13 expiration of time limited, after, 16 memorandum of, effected by delivery of, 13 duplicate of, to be sealed, 14 entiy in cause book of, 14 form of, 198 names of parties appearing by same solicitor to appear ill same, 14 notice of, 14 duplicate of memorandum to accompany, 14 order of revivor, on service of, 158 partners, by, 15 third party joined by notice, by, 54 ASSESSORS, trial by Judge with, 104 by Keferee with, 119 ASSIZES, entry for trial at, 108 findings and judges' directions, of, after trial at, 118 notice of trial at, 104, 106 order for trial at. 111 ; and see Trial. setting aside judgment after trial at, 115 ASSOCIATE, entry for trial with, for trial by jury, 109 findings of fact and judge's directions, of, by, 116 ATTACHMENT, costs of, 167 District Registrar cannot order, 163 enforcing judgments and orders by, 166, 167 leave to issue, necessary, 167 non-payment of costs, will not authorise, 166 praecipe for, form of, 218 referee cannot order, 120 service of notice of application for, 167 writ of, form of, 218 ATTACHMENT OE DEBTS, af&davit in support of application for, 173 costs in discretion of Court, 175 examination of judgment debtor as to debts, by order, 173 execution against garnishee, 174 iudgment dismissing action with costs, will not create debt, 173 notice to treat under Lands Clauses Act, no debt created by, 174 receiver, order may be made agamst, 174 service of order on garnishee binds debt, 174 third party claiming Uen, appearance by, 174 P Q 226 INDEX. BANKEUPTCY, abatement not caused by, 155 co-defendant, of, in case of joint liability, effect on action, 26 defendant of, after appearance, 34 dismissal of action on, of plaintiff, notice to trustee necessary, 114 joinder of causes of action by trustee in, 23 order of revivor on, 156 plaintiff, trustee added on, of, 72 CANCELLATION, documents, of, assigned to Chancery Division, 20 CHAMBERS, appeal from order in, 182 application to Judge in, to be by summons, 135, 180 chief clerk hears application in first instance, 181 claims, entry of, at, 187 counsel, appearance ot^ 181 liberty to attend proceedings in, 185 CHANCELLOR, LORD, transfer of action by order of, 150 mode of application, 151 writ of summons tested in name of, 1 CHARGE, action to raise, assigned to Chancery Division, 20 CHIEF CLERK, certificate of, 188, 189 application to discharge or vary, 189 opinion of Judge may be taken on, 1 89 separate, 190 counsel not heard before, 181 powers of, 182 CLAIMS, adjudication on, 188 advertisement for, 187 creditors, of, 187 entry of, at Chambers, 187 CLOSE OF PLEADINGS, default in delivering reply, rejoinder, or demurrer, by, 61 joinder of issue, by, 60, 61 COMPANY, interrogated through member or officer, 83 service on, 8 wrongly made defendants in action by shareholder, added as co- plaintiffs, 70 INDEX. 227 CONCURRENT WRIT, issue of, 4 CONFESSION OP DEFENCE, defence arising after action brought enables, 45 form of, 209 ground of further defence must be substantive to enable, 45 signing judgment for costs on, 45 CONSOLIDATION OF ACTION, evidence on, 154 former practice prevails as to, 154 issue of new writ unnecessary on, 74 test action, tried first on, 154 CONTRACT, denial of, 35 ; and see Pleadings. specific performance of, action for, assigned to Chancery Division, 20 statement of, in pleadings, 35 ; and see Pleadings. CORPORATION, interrogated through member or officer, 83 service on, 8 COSTS, abandoned appeal, of, 140 application out of Court, for, 140 adjournment of action at trial to enable amendment, on, 115 affidavit, of improper, 99 alternative claims against different defendants, in case of, 26 amendment, of applications as to, to follow event, 79 only costs of summons allowed, 79 attachment, of, 167 attachment of debts, of, 175 appeal, of, in discretion of Court, generally follow event, 148 counterclaim, rule as to, in case of, 51 as to, leave necessary, 148 demurrer, of, 68, 69 ; and see Demurrbk. discretion of Court, in, 176 District Registry, when taxed in, 162, 163 taxation cannot be reviewed in, 163 interrogatories, of improper, 82 jury trial, o^ follow event, 176 misjoinder of husband as co-plaintiff with wife, of, 73 mortgagees, of, 176 motion to exclude counterclaim, of, 50 omission of admissions in defence, occasioned by, 45 admission of documents in pursuance of notice, of, 103 notice to admit documents, of, 103 production of witness for cross-examination, of, 100 q2 228 INDEX. COSTS— continued. prolixity of pleadings, of, 43 security for ; see Sbcdeity. for Costs. setting aside judgment by default, on, 115 signing judgment for, on confession of defence, 45 ; and see Con- fession OF Defence. discontinuance, on, 63 ; and see Discontinuance. payment into Court, on, 65 ; and see Payment into Codrt. statement of claim, of unnecessary delivery of, 41 trustees, of, 176 appeal as to, by, not allowed, 148 seats, in case of costs, charges and expenses allowed or dis- allowed, 149 COCTNTEECLAIM, alternative claims against different persons not allowed in, 26 amendment of, 76 appearance of third party named as defendant to, 49 costs, rule as to, of, 51 damages claimed by, limited to date of writ, 47 discontinuance of action, destroyed by, 47 distinct from defence, must be, 48 exclusion of, by order, 50 application for, properly made by motion, 51 costs of application for, reserved, 50 Court of Appeal does not lightly interfere, as to, 50 delay to plaintiff no ground for, 50 where claim is against plaintiff in different character, 50 where subject matter different from statement of claim, 50 facts occurred since date of writ, statement of, in, 47 form of, against plaintiff alone, 201 plaintiff and third party, against, 206 general rules as to ; see Pleadings. judgment for defendant on, 51 motion for judgment on, in default of pleading, 51, 93 relief claimed by, statement of, in, 48 repetition of allegations in defence not necessary in, 48 reply to, 58 ; and see Ubplt. separate, against different plaintiffs by same defendant, 48 service of, on third parties joined as defendants to, 49 statement of separate claims in, 48 third party or co-defendant, against, along with plaintiff, 47, 48, 49 further title necessary, 48 time for delivery of, 49 COUNSEL, pleadings .iieed not be signed by, 33 statement of claim should he, 33 -special case need not be signed hy, 39 INDEX. 229 CREDITOR, claim by, 187 ; and see Claims. sues on behalf of all, in action for administration of real estate, 30 indorsement of claim in adnrinisfration action by, form of, 194 CROSS-APPEAL, notice of, 138 ; and see Appeal. DEATH, no abatement where cause of action survives, 155 order of revivor on, 156 DEFAULT OF APPEARANCE, action to proceed on, as if defendant had appeared, 17 filing pleadings on, 17, 33 notice of motion on, 33, 94, 96, 127 guardian ad litem appointed on, 16 omission of notice of appearance, 14 statement of claim not rendered unnecessary by, 17 third party joined by notice bound by judgment on, 54 trial, at, 114 ; and see Trial. DEFAULT OF PLEADING, admission by, 61 close of pleadings by, 61 dismissal of action on, by plaintiff, 92 application should be by summons, 92 bankruptcy of plaintiff, in case of, 92 further time allowed on application for, 92 motion for judgment on, 93, 94 ; and see Motion for Judgment. setting aside judgment obtained on, 94 DEFENCE. See Statement of Defence. DEFENDANTS. See Parties. DEMURRER, amend, leave to, enables, 66 amendment pending, 68, 76 after hearing of, 69 combining pleading and, 67 costs of, if successful, 68 dismissal of action on delay in payment of, 69 reserved if frivolous or where fraud is charged, 68 unsuccessful, if, 69 entry for argument of, 68 form of, 211 , . ^_ ground of law to be stated m, 67 leave to plead and demur simultaneously to same matter necessary, 67 230 INDEX. DEMURRER— continued. partial demvirrer improper, 67 Statute of Frauds no ground for, 35, 66 Limitations, of, good ground for, in real actions, 35, 66 not in personal actions, 35, 67 time for delivery and entry of, 67 ■wrong relief asked, no ground for, 66 DEPOSITIONS. See EvroENCE. DISCLOSURE, partners, of names of, by order, 30 stay of proceedings if withheld, 11 written demand, on, 11 solicitor, by, of authority to issue writ, 11 DISCONTINUANCE, appeal is vacated by, 63 counterclaim destroyed by, 47 leave for, when necessary, 62, 63 time for application for, 63 no defence to subsequent action, 62 signing judgment for costs on, 62 undertaking as to damages not affected by, 62 withdrawal of action after entry for trial, 63 defence or counterclaim, 63 part of statement of claim, 62, 63 DISCOVERY. See Interrogatoeies, Production of Documents. DISTRICT REGISTRY, acknowledgment of married woman not taken in, 163 action proceeds in, when, 159 appearance in, 13, 159 ; and see Appearance. accounts taken in, only by order or on default, 161 appeal from order in, to be by summons, 164 costs, as to, will lie, 164 no stay of proceedings unless ordered, 164 authority of District Begistrar, 163 charging order not made in, 163 continuance of action in, after notice of removal, by order, 160 dismissal for want of prosecution ordered in, 161 discovery, order for, only made by consent, in, 163 entry of judgment or order in, 162, 163 execution issued out of, 163 filing in, 17, 33, 161 interlocutory relief, order for, not made in, 163 judgment on default may be given in, 162 receiver not appointed in, 161 removal of action, from, by order, 160 defendant, by, on notice, 159 documents to be transmitted to London on, 160, 161 London, from, to, by order, 160 INDEX. 231 DISTRICT -REGIST-RY— continued. sale of real estate in, 162 setting down for trial in London, without order for removal, 160 summons, applications in, to be by, 164 taxation of costs in, 162, 163 review of, not taken in, 163 writ of summons, issue of, out of, 2 order for service or notice out of jurisdiction not made in, 11, 163 DISMISSAL, admissions in pleadings, of action, on, 96 appeal, of, on non-appearance of appellant, 140 , if not set down in time, 139 default of pleading, of action on, 92 ; and see Default of Pleading. District Eegistrar, by, for want of prosecution, 161 interrogatories, of action for want of answer to, 85 only as last resort, 86 non-appearance of plaintiff at trial, of action on, 114 notice to. trustee of bankrupt plaintiff necessary, 114 proof of service of notice of trial lannecessary, 114 notice of trial, of action on default of, 105 production of documents withheld, of action if, 91 only as last resort, 91 DISTRINGAS, writ of, abolished, 172 DOCUMENTS, admission of, in pursuance of notice, 103 costs of omission of, 103 affidavit of, form of, 213 ; and see Production of Documents. notice to admit, 103 costs of omission, 103 form of, 215 production and inspection of; see Production of Documents. statement of, in pleadings, 36 affidavits, in, 99 EVIDENCE, affidavit, may be taken by, by consent, 97; and see Affidavit. Appeal, how brought before Court of, 147 commissioner or examiner, taken before, 100 application for leave must be made without delay, 101 depositions to be filed and printed, 101 not allowed if witness can be produced, 101 cross-examination on affidavit, 99, 100; and see Affidavit. (7^ bene esse, not taken ex pairte, 102 further, when allowed on appeal, 146 ; and see Appeal. 232 INDEX. EVIDENCE— comimaed. interrogatories, when allowed to he taken by means of, 100 not where cross-examination required, 101 part of affidavit in answer to, may he used, 86 jury cannot try action, where taken by affidavit, 104 motion, on, to be by affidavit, 98 notice of trial not given tiU close of, when taken by affidavit, 100, 104 petition, on, to he by affidavit, 98 refusal to make affidavit, mode of procedure in case of, 97, 101 shorthand notes of, discouraged by Court of Appeal, 1 47 summons, on, to he by affidavit, 98 viva voce, must be, in absence of agreement, 97 ELEGIT. See Exboutign. EXECUTION, attachment, leave to issue, necessary, 167 ; and see Attachment. attachment of debts, 17.3, 174 ; and see Attachment of Debts. change of parties, after, leave to issue necessary, 171 charging order, 171 conditional order, of, leave to issue necessary, 169 District Eegistry, when to issue out of, 163 duration of writ of, 170 elegit, time for issue of writ of, 167 fieri facias, time for issue out of, 167 garnishee, against, 174 injunction, how enforced, 167 leave to issue, when necessary, 169, 171 mandamus, how enforced, 167, 168 partners, against, 169 payment into Court, how enforced, 166, 168 individual, to, 166, 167 poundage fees and expenses, levy of, 170 praecipe filed on issue of, 170 production of judgment or order on issue of, 169 recovery of land, how enforced, 166 property other than land or money, of, 167 renewal of writ of, 171 sequestration, what orders enforceable by, 166, 167 stay of, by order, 168 appeal no, 144, 1 64 order for new trial, operates as, 124 time for issue of, 167, 171 third parties, by or against, 171 writ of, date and indorsements on, 170 EXECUTOR, joinder of personal claim by or against, 24 represents legatees in action, 27 FIERI EACIAS. See Execdtion. INDEX. 233 FILING, default of appearance, pleadings on, 17, 33 District Registry, in, IV, 33 notice of motion, 33, 94, 96, 127 notice to third party, 54 special case, 39 writ of summons, 4 riEMS. See Partners. FORECLOSURE, action for, assigned to Chancery Division, 20 indorsement of claim for, form of, 195 leave for joinder of other causes of action with action for, un- necessary, 23 preliminary accounts ordered on summons, 18 FORMS, affidavit of documents, 213 answer to interrogatories, in, 213 attachment, praecipe for, 218 writ of, 218 certificate of action marked for jiuy trial, 217 confession of defence, 209 counterclaim against plaintiff, 201 plaintiff and third party, against, 206 demurrer, 211 indorsements of claim on writ, 194, 195, 196 interrogatories, 212 memorandum of appearance, 198 entry of demurrer, for, 212 entry of special case, for, 198 renewal of writ, for, 197 notice of acceptance of payment into Court, 211 admit documents, to, 215 claim hy defendant against third party, of, 210 counterclaim against third party, for indorsement on, 209 inspection of documents, for, 214 payment into Court, of, 211 trial of, 217 writ, of, in Ueu of service out of jurisdiction, 197 rejoinder, 204, 209 reply to defence, 200 defence and counterclaim, to, 203, 208 sequestration, praecipe for, 218 writ of, 219 statement of claim for administration, 199 specific performance, for, 201, 205 statement of defence, 200 writ of summons, 193 service out of jurisdiction, for, 196 234 INDEX. PKAUDS, STATUTE OF, demurrer, cannot be raised by, 35, 66 FURTHER CONSIDERATION, evidence on, 192 motion for judgment, reserved on, 127 for new trial on, 124 setting down on, 191 GUARDIAN AD LITEM, appointment of, of infant or lunatic defendant, 16 notice of application for, 16 order of revivor, on service of, 157 consent to aflldavit evidence, may give, 97 infant defends by, 29 person of unsound mind defends by, 29 HUNDRED, service on, HUSBAND AND WIFE, joinder of causes of action by or against, 23 service on, 7 INDORSEMENT OF CLAIM, account, for, enables order on summons, 2, 18 amendment of, 2 unnecessary after delivery of statement of claim, 2 brevity necessary in, 1 creditors' administration action, in, 30 form of, for administration, 194 execution of trusts, for, 195 foreclosure, for, 195 partnersliip action, for, 195 portions, for raising, 195 rectification of deed, for, 195 redemption, for, 195 specific performance, for, 196 precision unnecessary in, 1 representative cbaracter of parties to appear in, 2 INFANT, defendant, defends by guardian ad litem, 29 guardian ad litem of, appointment of, 16 order of revivor, on service of, 157 non- denial no admission against, 34 INDEX. 235 INFANT — continued. plaintiff sues by next friend, 29 service on, 7 special case, setting down, where a party to, 39 wardship and care of estates of, assigned to Chancery Division, 20 INHABITANTS, service on, 8 INJUNCTION, action not restrained by, 131 attachment or committal, enforced by, 167 District Registrar cannot grant, 163 eularged powers of Court to grant, 130 motion for, by plaintiff or defendant, 130 judgment, may be granted after final, 131 writ of, abolished, 167 INQUIRY, order for, on motion or summons, 96 summons to proceed with, 185 INSPECTION, documents, of, 90 ; and see Production of Documents. subject matter of action, order for, of, 132 not made ex parte, 133 not made on application of defendant before delivery of defence, 133 INTEREOGATOEIES, accounts, asking for, disallowed, 83 answer to, to be by affidavit, 84 printing when necessary, 84 time for, 84 trial, reading part at, 86 attachment on omission to answer, 86 solicitor, of, omitting to give notice of order to answer, 86 companies, corporations, &c., may be examined by, by order, 82 costs of improper, 82 counterclaim, defendant to, cannot interrogate plaintiff, 49, 82 defence struck out on omission to answer, 85 before delivery of, permissible on part of plaintiff, 81, 83 dismissal of action on omission to answer, 85 evidence, as to, disallowed, 83 improper, may be left unanswered, 84 leave to deliver, when necessary, 81 granted after action set down, 81 not granted to defendant before delivery of defence, 81 objection to answer, when to be taken by affidavit, 83 ground of, to appear on affidavit, 84 236 INDEX. INTERROGATOm ES— continued. order to answer, 84 appeal from refusal of, fresh, objections cannot be taken on, 85 application for, should be by summons, 85 refused where right to discovery depends on determination of question in the action, 85 service on solicitor, sufiftcient, 86 particulars, for better, admissible, 82, 83 striking out, on summons, 84 truth of allegations, as to, disallowed, 83 ISSUES, judge may settle, if parties differ, 105 order for trial of, by jury, 111 reference Rto'eferee of, 118, 119 right of parties to trial of, by jury, where other method specified in notice of trial, 105, 107 separate trial of dilferent, by order, 110 only on special grounds. 111 JOINDER OF CAUSES OF ACTION, action for recovery of land, with, leave necessary, 22 action to establish title is not, 23 foreclosure action is not, 23 exclusion ordered in case of improper, 22, 24 executors or administrators, by or against, in personal and repre- sentative characters, 24 husband and wife, by or against, 23 separate trials may be ordered in case of, 22, 24 statement of different claims to be distinct, 23 trustee in bankruptcy, by, leave to add personal claim neces- sary, 23 JOINDER OF ISSUE, close of pleadings effected by, 60, 61 counterclaim, on, construed as an admission, 58 denial, operates as, 34, -56 exception of facts from operation of, 58 rejoinder, in, 60 ; and see Eb joinder. JUDGMENT, absence of party at trial, on, 114 ; and see Trial. setting aside, 115 admissions in pleadings, on, 95 ; and see Motion for Judgment. bespeaking, 128 bringing into chambers, 184 conduct of proceedings under, 184 default of pleading on, 92 ; and see Motion for Judgment. District Registry in, 161, 162 enforcing ; see Execution. INDEX. 237 JUDGMENT— cOTrfmucd. entry of, 128 date of, 129 delivery to Registrar of pleadings on, 128 errors in, may be corrected on motion, 129 motion for ; see Motion for Judgment. new trial, on hearing of motion for, 124 passing, 128 Eeferee cannot direct entry of, 117, 118 service of notice of, for administration on beneficiaries, 27 settling, 128 summons to proceed with, 185 JUKY. And see Trial. affidavit evidence, cannot try action in case of, 104 entry for trial by, 109 ; and see Trial. order for trial by, 111 not made after delay, 112 reasons to be stated in order, 111 order for trial without, 112, 113 Court of Appeal will not interfere as to, 112 right of parties to trial of issues by, where other mode specified, 105, 106 LIEN, attachment of debts subject to, 174 payment into Court to satisfy, 133 LIMITATIONS, STATUTE OF, demurrer, good ground for, in real actions, 35, 66 pleading, 35 renewal of writ operates as a bar of, 5 LUNATIC, defends by committee, 29 non-deniaJ no admission against, 34 person of unsound mind, appointment of guardian ad litem, of, 16 defends by guardian ad litem, 29 order of revivor, service of, on, 157 sues as plaintiff by next friend, 29 plaintiff, sues by committee, 29 service on, 7 special case, setting down, where a party to, 39 MANDAMUS, how enforced, 167 motion for, by plaintiff or defendant, 130 238 INDEX. MARRIAGE, no abatement, 155 order of revivor on, 156 MARRIED WOMAN, defends with husband tinless otherwise ordered, 28 joinder of claims by or against, with claims by or against hus- band, 23 leave to defend separately, 29 plaintiff, sues by next friend, 28, 72 may sue alone by order, 28 security for costs by, where suing or defending alone, 28, 29 unless with ample means, 29 service on, 7 special case, setting down, where a parly to, 39 MOTION, adjournment of, 134, 135 appearance, leave to serve notice of, before, necessary, 134, 136 compromise enforced by, without fresh action, 131 defendant, by, for injunction or receiver, 131 dismissal of, for want of parties, 134 ex parte, when allowed, 130, 133, 135 order may be set aside, 1 33 injunction, for, 130 action not restrained by, 131 inspection of property, for, 133 defendant, by, before delivery of defence not allowed, 134 ex 'parte, may be, 134 judgment, for ; see Motion for Judgment. mandamus, for, 130 new trial, for, 122 ; and see New Trial. notice of, length of, 133, 135 filing, on default of appearance, 134, 136 payment into Court, for, 132 lien to answer, 133 trust moneys, of, 132 preservation of property, for, 132 receiver, for, 130 before service of writ, indorsement of claim for necessary, 130 manager, and, appointed without security, 131 sale of perishable goods, for, 132 MOTION FOR JUDGMENT, absence of pleadings, in, 103, 107 admissions in pleadings, on, 95 administration decree on, 95 discretion of Court to refuse to dispose of question on, 96 dismissal of action not obtainable on, 96 general paper, ordered into, when, 96 omission of, party not deprived of benefit of admissions at hearing by, 96 INDEX. 239 MOTION FOR JVDGUENT—ccmtinued. admissions in pleadings — continued. partition decree on, 95 partnership decree on, 95 payment of trust funds into Court on, 95 setting down unnecessary, 96 time for, 95 default of pleading, on, 93, 94 between parties other than plaintiff and defendant, 93 counterclaim, on, 93 general paper, goes into if opposed, 94 marking short, 94 ordinary motion, not brought on as, 94 setting down, 94 final judgment on, 126 farther consideration reserved on, 127 notice of, necessary, 94, 127 filing, on default of appearance, 94, 127 special case, on, 40 time for, 127 trial of action or issues, after, 126 NEW TRIAL, application for, to be to Chancery Judge, where issue only has been tried by jury, 123 Divisional Court, to, after trial of whole action by jury, 122 Court of Appeal will not lightly interfere, 123 final judgment on application for, 124 further consideration reserved on application for, 124 grounds for, 123 mode of application for, 122 Court of Appeal to, after trial without jury, 148 single question in action, of, 123 stay of proceedings, order nisi for, operates as, 124 time for application for, 122 NEXT FRIEND, consent of, necessary, 73 defendant should not be, 29 discovery of documents, must give, 88 infant sues by, 29 married woman sues by, 28 person of unsound mind sues by, 29 security for costs from, 29 solicitor must be employed by, 29 NOTICE OF CLAIM, co-defendant, against, delivery of defence sufficient notice, 52 pleading is not a counterclaim, 53 trustee of bankrupt co-defendant, arainst, 54 third parties, against, 53, 54 ; and see Third Parties. 240 INDEX. - NOTICE OF TRIAL, absence of pleadings, cannot be given in, 107 action or issues, to state whether for trial of, 105 assizes, at, 104 close of pleadings by default, on, 106 countermanding, 107 default of entry for trial, rendered inoperative by, 107 defendant may give, on.plaintiflf's default, 106 dismissal of action on default of, 105 form of, 217 issues, of, by jury, by defendant, 105 of particular issues, not permissible, 105 jury, right of parties to. trial by, where other mode specified in, 105, 106 length of, 106 mode of trial to be specified in, 104 time for delivery of, 104 OFFICIAL REFEREE. See Referee. PARTIES, adding, 70 — 74 ; and see Alteration of Parties. alternative claims against different defendants, 25 by different co-plaintiffs, 25 appointment of representative of heir, next of kin, or class, 28 bankruptcy of one of several co-defendants jointly liable, effect of, on action, 26 beneficiaries represented by trustees, executors, or administrators, 27 joinder with trustees as defendants where plaintiflf's title doubtful, 27 body of persons with identical interest, in case of, 30 co-defendants, persons interested jointly, separately, or in the alternative may be, 25, 26 costs of misjoinder of plaintiffs, 25 unsuccessful alternative claim, in case of, 26 counterclaim, to, 47 ; and see Counterclaim. creditors' administration action, 30 defendant with limited interest not to be prejudiced, 26 infants sue by next friend and defend by guardian ad litem, 29 lunatics sue and defend by committee, 29 married women sue by next friend and defend by husband, 29 partners may sue and defend in name of firm, 30 partition action, to, 26 trustees represent cestui que trust in, 27 persons of unsound mind sue by next friend and defend by guardian ad litem, 29 redemption action, trustees represent cesi/ai que trust in, 27 representative character of, to appear by writ, 2 third parties, joinder of, by notice, 62 — 55; and see Third Parties. INDEX. 241 PARTITION, actions for, assigned to Chancery Division, 20 District Eegistry, inquiries may be taken in, 162 judgment for, on admissions in pleadings, 95 parties to action for, 26 trustees represent cestui que trust in action for, 27 PAETNEES, action by or against, proceeds in name of firm, 11, 15 appearance of, to writ, 15 disclosure of names of, by order, whether plaintiffs or defend- ants, 30 on written demand, where defendants, 11 stay of proceedings, where withheld, 11 execution against, 169 firm may sue and be sued in name of, 30 service on, 7 PARTNERSHIP, actions for dissolution of, assigned to Chancery Division, 20 denial of, must be specific, 34 indorsement of claim for dissolution of, form of, 195 judgment on admissions in pleadings in action for dissolution of, 95 PAYMENT INTO COURT IN SATISFACTION, acceptance in case of, 65 form of notice of, 211 notice of, necessary, 65 action for debt or damages, only allowed in case oi, 64 denial of right to sue not precluded by, 64 defence, must be pleaded in, 64 leave necessary for, after delivery of defence, 64 notice to plaintiff of, 64 form of, 211 payment out of Court of moneys, 65 signing judgment for costs on, 65 PLEADINGS, admission by non-denial in, 34 amending, 76 — 80 ; and see Amendment. charges and countercharges improper in, 32 concise, to be, 32 condition of mind to be stated as a fact m, 36 contract, statement of, in, 35 effect of bare denial of, 35 reference to letters, &c., constitutmg contract sufttcient, 36 counterclaim ; see Counteeclaim. default of ; see Default of Pleading. delivery of, 33 R 242 INDEX. PLEADINGS— corcJinued. denial to be specific and not evasive, 34 joinder of issue operates as, 34 representative or other capacity of claimant, of, 34 rules as to, strictly construed, 34, n. document, statement of efifect of, sufficient in, 36 evidence not to be stated in, 33 filing on default of appearance, 17, 33 inconsistency, not allowable in, 37 law, matters of, not to be stated in, 32 marking, with date, division, &c., 33 notice to be stated as a fact in, 36 printed, when, 33 recovery of land, in actions for, 32, 37 reply; see Eeplt. rejoinder ; see Eejoinder. signature of counsel to, 33 special case ; see Special Case. statement of claim ; see Statement op Claim. statement of defence ; see Statement op Defence. Statute of Frauds must be pleaded, 35 limitations, in case of personal actions, 35 striking out, 78 ; and see Amendment. surprise to be avoided in, 35 PORTIONS, actions to raise, assigned to Chancery Division, 20 indorsement of claim in, form of, 195 PRODUCTION OF DOCUMENTS, affidavit of documents to be filed on order for, 88 all documents must be identified in, 88 dates of privileged documents need not be given in, 89 form of affidavit, 213 objection to affidavit, how taken, 88 appeal, pending, application for, to be to Court of Appeal, 87 application for, to be by summons, 87, 90 affidavit in support, when required, 91 attachment on non-compliance with order for, 91 solicitor not giving notice of order liable to, 91 defence, not ordered on application of defendant before delivery of, 87, 90 dismissal of action on non-compliance with order for, 91 only ordered as last resort, 91 evidence, documents cannot be used in, if inspection withheld, 90 further affidavit of documents when ordered, 89 inspection, notice fixing time for, 90 form of notice, 214 next friend, by, 88 notice, on, where documents referred to in pleadings or affidavits, 90 form of notice, 214 may be enforced by order, 90 INDEX. 243 PRODUCTION OP DOGVMENTS— continued. objection to produce to be stated in affidavit of documents, 88, 90 notice fixing time for inspection, in, 90 postponement of order where right to discovery depends on determination of question in the action, 89 privilege, only ground for withholding, 89 reference, pending, application for order for, to be to judge, 88, 1^0 statement of claim, not ordered on application of plaintiff before delivery of, 87 striking out defence on non-compliance with order for, 91 only ordered as last resort, 91 service of order for, on solicitor sufficient, 91 third party, by, 88 EECEIVER, garnishee order made against, 174 judgment, may be appointed after final, 131 motion for, by plaintiff or defendant, 130' EECOVEEY OF LAND, affidavit of documents in action for, 89 defendant need not plead title, in case of legal defence, 32,, 37. joinder of other causes of action with claim for, 22, 23 plaintiff must plead title in. action for,. 32, 37 writ of possession to enforce, 166 REDEMPTION, action for, assigned to Chancery Division, 20 indorsement of claim for, form of, 195 trustees represent cestui que trust in action for, 27 RENEWAL OF WRIT, effect of, 5 evidence of, 5 expiration of original writ, when alloweil after, 5 form of memorandum for, 197 leave of Judge or Disti-ict Registrar necessary for, 4 lost, not allowed if, 5 REFEREES, authority of, 120 committal, cannot order, 120 distribution of business among, Uff issues only tried by, 117 judgment, cannot direct entry of, 117, 118 notice of trial before, improper, 104 objection to report, lirow taken, 120 order for reference to, to state whether tor tnal or report, llS name of referee to be indorsed on-, 119 particular, Court may order reference to, 119 patties cannot reciuiru reference to, 119 244 INDEX. EEFEKEES— comfmMcei. production of documents pending reference, 88, 120 report, reference for, to, by order, 117 facts to be fully stated in, 117, 120 objection to, how taken, 120, 121 reasons not to be given in, 117 remitting, for explanation, 120 special, remuneration of, 117 submission of question to Court by, 120 trial, reference for, to, by order, 118 consent, by, 117 fraud, not where charged, 118 mode of, 119 place for, 119 prolonged examination or investigation necessary, where, 118 questions of account, of, 118 remitting to, for re-trial or further consideration, after, 120 whole action cannot be referred for, 117 KEJOINDER, form of, 204, 209 joinder of issue, only allowed in, without special leave, 60 ; and see JoiNDEE OF Issue. reply to counterclaim, on, 60 defence introducing fresh matter, to, 60 time for delivery of, 60 KEPLY, admission by non-denial in, 57 counterclaim, to, time for, 58 counterclaim cannot be set up in, 58 denial to be specific in, 58 form of, 203, 208 further, when allowed, 59 joinder of issue in, construed as admission, 58 pleading fresh facts in, 59 defence, to, time for, 56 form of, 200 fresh matter, introduction of, 56 joinder of issue operates as denial in, 34, 56 ; and see Joinder OF Issue. inconsistency with previous pleading, 37, 56 striking out, 78 KEVIVOB, amendment of pleadings on, 156 appearance by parties served with order of, 158 costs, party obtaining order liable for, 157 order of course, by, 156 service of order of, 157 ', oy, rof, ] INDEX. 245 SECURITY FOR COSTS, amount of, 176 appeal, of, when reqiured, 143 application out of Court foi-, 144 counterclaim, how affected by, 177 married woman defending separately, by, 29 next friend, by, ordered at any stage, 29 past as well as futiu'e, 177 SEQUESTRATION. See Execution. SERVICE, accepting, 6 affidavit of, necessary to enable plaintiff to proceed by default, 17 corporations, on, 8 counterclaim, of, on third parties, 49 date of, to be indorsed on writ, 8 discovery, order for, of, 86, 91 fellowships, on, 8 hundreds, on, 8 infants, on, 7 inhabitants, on, 8 jurisdiction, out of, when allowed, 8 affidavit in support of application, 9 cause of action to be shown by affidavit, 10 chief clerk cannot give leave for, 10 District Registrar cannot give leave for, 1 1 injunction and interrogatories, of, 10 notice of writ, of, in case of foreigners, 11 objection to order for, how taken, 10 place where cause of action arose to be stated in affidavit, 10 time for appearance fixed by order, 10 lunatics and persons of unsound mind, on, 7 married women, on, 7 new defendant, on, 7.3 order of revivor, of, 157 partners, on, 7 individual carrying on business in name of firm, on, 7 substituted, when allowed, 6 application for leave to be supported by affidavit, 6 date of service need not be indorsed on writ in case of, 8 mode of effecting, 6 third party, on, of notice of claim by defendant against, 54 SHORT CAUSE, delivery of statement of claim m case of, 41, n. motion for judgment on default of pleading to be heard as, 94 SPECIAL CASE, . . n , oo concurrence of parties, stated by, dS entry for argument of, 39 form of memorandum for, 198 leave necessary where parties not sm juns, 39 246 INDEX. SPECIAL CASE—cotainued. filing, 39 fixed sum, agreement for payment of, in case of, 39 order for statement of, 38- before delivery of statement of claim, 38 printing, 39 proof of statements in, where parties not sui juris, 39 setting down action, in case of, 40 signature of parties, 39 counsels, unnecessary, 39 statement of facts and documents jn, 39 stay of proceedings on statement of, by order, 38 SPECIFIC PEREOBMANCE, actions for, assigned to Chancery Division, 20 counterclaim for, transfer to Chancery Division on, 21, 153 foim of indorsement of claim for, 196 * statement of claim, for, of, 201, 205 STATEMENT OF CLAIM, amendment of, 76, 77, 78 ; and see Amendment. charges and countercharges, improper in, 32 debt or liquidated demand, in actions for, 42 delivery of, though dispensed with by defendant, 41 not precluded by order for preliminary accounts, 18, 34 when unnecessary, 42 where cause to be heard short, 41, n. distinct claims, statement of, in, 43 dispensing with delivery of, 14, 33 evidence not to be stated in, 32, 43 filing on default of appearance, 33, 41 form of, 199, 201, 205 general rules as to ; see Pleadings. place for trial named in, 42 prolixity to be avoided in, 32 costs of, 43 recovery of land, in action for, 32, 37 relief claimed by, statement of, in, 43 striking out, 43, 78; and see Amendment. time for delivery of, 41 withdrawal of, 62, 63; and see Discontinuance. STATEMENT OF DEFENCE, admission by non-denial in, .S4, 44 amendment of, leave necessary for, 77, 80 ; and see Amendment. delivery, where statement of claim dispensed with, 44 denial in, 34, 44 ; and see Pleadings. costs of improper, 45 form of; 200 general rules as to ; see Pleadings. grounds of defence arising after action brought may be pleaded in, 45 ^ INDEX. 247 STATEMENT OF jyEFENCE -continued. new, on amendment of statement of claim, leave to deliver, necessary, 80 prolixity to be avoided in, 32, 45 striking out, 79 ; and see Amendment. time for delivery of, 44 withdrawal of, 63 STAY OF PEOCEEDINGS, appeal, no, unless ordered, 144 disclosure of names of partners, on refusal of, 11 new trial, order nisi for, operates as, 124 order for, 168 special case, pending, by order, 38 writ issued without authority of solicitor, where, 11 STEIKIISTG OUT, interrogatories, 83 ; and see Interrogatories. pleadings which are prolix, &c., 43, 78, 79; and see Amend- ment. default of discovery, on, 85, 91 SUMMONS, adjournment of, for want of parties, 135 Chief Clerk, heard first by, 181 District Registrar, application to, to be by, 164 appeal from, to be by, 164 form o^ 220 Judge in Chambers, application to, to be by, 135, 180 preparation of, 181 service of, before appearance, leave necessary, 134 THIRD PAETIES, appearance by, to notice of claim by defendant, 54 default of, bound by judgment on, 54 consent of plaintifif required to joinder of, 53 costs of, how borne, 55 counterclaim against ; see Counteeclaim. discovery, must give, 55 execution E^ainst, 171 extent to which party bound settled by judge, 55 filing notice of claim against, 54 leave to join, necessary, 53 ex parte, not granted, 53 question need not be identical with that between plaintiff and defendant, 53 resistance of order, improper, 54 mode of procedure against, directed by Court 54 notice of claim by defendant against, to be sealed like writ, 64 pr^°se'rved allowed to join other third parties, 55 248 INDEX. THIED PARTIES— continued. order cannot be made against, 55 object of joinder, 55 plaintiff, joinder by, of, 75, n. service of notice of claim by defendant against, 54 out of jurisdiction, 54 TIME, abridgment of, by order, 179 calendar months, calculated by, 178 close of oflS^ces, expiration of, during, 178 enlargement of, by order, 179 consent, by, 179 holidays, when not reckoned, 178 long vacation, leave for delivery, or amendment of pleadings during, necessary, 178 not reckoned in computing, 178 TRANSFER, administration, pending, 152 form of order, 152 consent of Presidents of Divisions, when necessary, 150, 152 counterclaim for specific performance, on delivery of, 21, 153 ex parte, not ordered, 152 hearing only, for, 160 Lord Chancellor, by order of, 150 application to, how. made, 151 jury, prior to trial by, 109, 163 salvage action, of, from Chancery Division, 153 winding-up of company, pending, 161 TRIAL, adjournment of, 115 alternative claims against different defendants, in case of, 26 amendment at, 77, 116 change of mode of, by order, 110, 111, 112 not after great delay, 110, 112 party giving notice of trial cannot obtain order for, 110 entry for, 108 associates, with, in case of jury trial, 109 delivery of pleadings on, 108 time for, 108 withdrawal of action after, 109 findings of fact and directions at, entry of, 116 further consideration reserved at, 116 jury, by, 104, 105, 109 ; and see Jury. certificate of marking for trial by, form of, 217 Chancery Division, not allowed in, 109 right of parties to, 105, 106 modes of, 104 new, 122 ; and see New Trial. INDEX. 249 TRIAL — continued. non-appearance at, of defendant, judgment for plaintiff on, 114 plaintiff, of, dismissal of action, 114 proof of service of notice of trial unnecessary, 114 setting aside j udccment, H 5 trustee of bankrupt plaintiff, notice of application to, 115 notice of, 104—107 ; and see Notice of Trial. place for, 114 referee, before, 117 — 121 ; and see Eeferee. separate trial of different issues, 110 joinder of different causes of action, in case of, 22, 24 TKUSTEE, bankruptcy, in, joinder of personal claim by or against, 23 notice of trial must be given to, 114 cestui que trmt, are sufficiently represented by, 27 payment into Court by, on motion, 132 sale, conduct of, given to, 184 WITNESS. See EvmENCE. WRIT OF SUMMONS, action commenced by, 1 address of plaintiff and soKcitor to be indorsed on, 3 address for service, when necessary, 3 amendment of, 2, 77 indorsement of claim, of, 1 appearance to, 13, 14, 15 ; and see Appearance. concurrent, issue of, 4 date of, 1 District Registry, issue out of, of, 2, 3 division to be specified in, 1 duration of, 4 indorsement of claim on, 1; and see Indorsement of Clahi. filing copy of, 4 form of, 193 Judge to be specified in, 1 jurisdiction, for service or notice out of, leave to issue nec(^' sarv, 2 form of, 196 preparation of, 3 renewal of, 5 ; and see Renewal of Writ. service of, 6 — 12; and see Service. testing, 1 THE END. STEVENS .A.ND BICHAKDSON, PEINTEKS, 5, GREAT QUEEN STREET, W.I . «L.«:.».L, . ■ ^^^^^^^Hv^ •?." t *rc<«K.; ^^^'iU. ij^fcC^C ' KZL-i*™ C CC I'clGCtfe ^ ^ r c