Olnrn^U ICam ^rl^nol Htbrary ilaralfaU iEquttg fflolbrttnn (Sift of IE. 3(. MatHljaU. Cffi. 1. 1894 CORNELL UNIVERSITY LIBRARY 3 1924 084 263 197 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084263197 PEOCEEDINOS SUIT IN EQUITY. Bar Examination Journal; CONTAINING THE EXAMINATION PAPERS ON ALL THE SUBJECTS, With ANSWERS, Set at the General Examination for Call to the Bar. EDITED BT A. D. TYSSEN, B.C.L., M.A., ' Of the Inner Temple, and , „ ^ > Baeeistees-at-Law. R. K. WILSON, M.A., Of Lincoln's Inn, PuMished in JVumhers, Svo., 3s. eaohj dy post 3s. Id., after tJie respective Examinations for Calls to the Bar in each year in Trmity and Michaelmas Terms, Nos. 1, 2f 3, 4 and 5, Trinity and Michaelmas Terms, 1S71 and 1872, and Trinity Term, 1873, may now be had. Contents of each N'umbeb. Subjects of Examination. Examination Papers, wUh the Answm's. English Law: — Constitutional Law and Legal Histoiy; Equity; Common Law; Keal Property; Jurisprudence, &c.; General Paper. Indian Law:— Hindu Law; Mahomedan Law; Penal Code; Criminal Procedure Code; Succession' Act; Civil Procedure Code;, General Paper. " We can recommend this publication to tlie notice of students intending to submit themselves to examinations for calls to the bar." — Law Journal. Law Examination Journal AND LAW STUDENT'S MAGAZINE. EDITED BT HEEBERT NEWMAN MOZLEY, Of Lincoln's Inn, Esq., Barrister-at-Law. PiMished on the morning of the second day after ectcft respecUve Final ExaminaHon in Hilai'y, Easter, Trinity and Michaelmas Terms in each year. Each Nimber price lA, by post \s. Id. ; or annual subscription, payable in advance, 4jj., by post is. id. Contents of each Ndkber. Leading Articles by the Editor; Reviews of Boots; Summary of New Decisions in Banco and Nisi Prius; Analysis of the more important Statutes of the Session; Intermediate Examination Questions and Answers; Final Examina- tion Questions and Answers; Not^ on the Examinations; Correspondence. S* Copies of Vol. I. of the Law Examination Journal, containing Nos. 1 to 14, with fall Indexes and Tahles of Cases cited, may now he had, price 16s. hound in Cloth. AN ELEMENTAEY YIEA¥ OF THE PROCEEDINGS IN A ^nit in ^qmi% WITH AN APPENDIX OF FORMS. BY SYLVESTER JOSEPH HUNTER, B.A., OF likcoln's inn, barrister- at-law. SIXTS EDITION. BY GEORGE WOODFORD LAWRANCE, M.A., OF LINCOLN'S INN, BABRI STER-AT-LAW, LONDON : BUTTEEWOKTHS, 7, FLEET STKEET, lain puiliefierB to tje ®utm's magt nrelUnt iWajtstp. HODGES, FOSTER & CO., GEAFTON STREET, DUBLIS. CALCUTTA : THACKER, SPINK & CO. BOMBAY : THACKER, VINING & CO. MELBOURNE : GEORGE EOBEETSON. 1873. 113^5^^^ PEIUTED BY C. EOWOETH AND SONS, NEWTON STBEBT, HIGH UOLBOBN. PREFACE TO SIXTH EDITION. Since the previous Edition of this Work was issued, the Practice and Procedure of the Court of Chancery has been somewhat altered by the Statute called The Court of Chancery (Funds) Act, 1872, which has abolished the Office of Accountant- General, and transferred his duties to the Paymaster- General, and has handed over the funds in Court to the Consolidated Fund. This Statute, together with the Eules and Orders which have been made to carry it into effect, has necessitated certain alterations in the Text. The whole "Work (including the Appendix of Forms) has been carefiiUy revised, and recent de- a 3 VI PKEFACE TO SIXTH EDITION. » cisions have been referred to in the Notes where- ever they seemed to be ahnost necessary illustrations of the Text, without interfering with the elementary character of the "Work. G. "W. Lawkanoe. 7, JVem Square, Lincoln's Inn, May, 1873. PREFACE TO FIFTH EDITION. The present Edition will, it is hoped, be found to embody in the short form which is consistent with the chaxacter of the Work, aU the alterations in, and additions to. Chancery Practice and Procedure which have been made since the last Edition was issued, and which arise partly from Statutes and partly from General Orders of the Court. The Liquidation Act, 1868, The Joint Stock Com- panies Arrangement Act, 1870, and The Married Women's Property Act, 1870, increase to some extent the jurisdiction of the Court, while The Attorneys and Solicitors Act, 1870, affects the mode of remuneration of Solicitors of the Court, and The Debtors Act, 1869, by abolishing arrest and imprisonment for debt (except in a few cases), considerably alters the procedure of the Court in enforcing its decrees or orders for payment of Vlll PEEFACE TO FIFTH EDITION. money. The important General Orders made under the lastly-mentioned Act, and such other new Orders as have been issued since the last Edition of this Work was published, are referred to in the "Work, and it is confidently hoped that no material alteration in Chancery Practice has been overlooked. G. W. Laweance. 7, N^en Square, January, 1871. PKEFACE TO FOURTH EDITION. Since the Third Edition of this Work was pubKshed, few alterations have been made in the practice and procedure of the Court of Chancery ; such, however, as have been made will be found embodied in the present Edition, and the whole Work has been care- fully revised. A short Chapter has been added on the recent Statute giving equitable jurisdiction to the County Courts. G. W. Laweance. 7, New Sj-uare, Oeioier, 1867. PREFACE TO THIED EDITION. Since I prepared the Second Edition of this Work the Author has retired from the Profession, and left the Work in my hands. A Third Edition being now called for, I have carefiilly prepared it, and it wiU, I think, be found to embody aU the alterations in, and additions to, the procedure and powers of the Court of Chancery which have been made since the Second Edition was issued. G. Woodford Laweance. 7, New Square, Lincoln's Inn, 31si March, 1865. PREFACE TO SECOND EDITION. In preparing the Second Edition of this Work for publication at the request of the Author, I have en- deavoured, while adhering as closely as possible to the original plan of the Work, to increase its utility, by the addition of references to authorities in sup- port of the text, such authorities being either par- ticular Statutes, or Decided Cases, or the General Consolidated Orders of the Court of Chancery, Eecent alterations in the mode of taking evidence in Chancery and in other parts of Chancery pro- cedure, have made it necessary to alter considerably some portions of the Work. G. Woodford Laweance. 40, Chancery Lane, April, 1862, ADVERTISEMENT. This little Book makes no pretension to the cha- racter of a complete treatise. It is intended merely to give to the Student, on commencing his prepa- ration for practice in the Court of Chancery, a short view of the nature of the business which will come before him in a Solicitor's Office, or in the Chambers of an Equity Draftsman. S. J. H. 15, OlA Square, Lincoln's Inn, June, 1858. CONTENTS. Introduction PAET I. The Regular Course of a Suit up to Decree Chaptee I. The Bill, its Nature and rorm Chaptek II. Service of the Bill, and Consequent Proceedings 19 Section 1. Service of the Bill . . . . . . 19 Section 2. Appearance of the Defendant . . . . 22 Section 3. Interrogatories for the Examination of the De- fendant . . . . . . 28 Chapteb m. The Defence . . . . . . 26 Section 1. On Demurrers . . . . . . 27 Section 2. On Pleas .. .. .. ..36 Section 3. On Answers and Disclaimers . . . . 43 Section 4. InterrogatoriesfortheExaminationof the Plain- tiff .. .. .. .. 48 Chajptek rV. On the Plaintiff's Proceedings after Answer . . 61 Section 1. Exceptions to the Defendant's Answer . . 52 Section 2. Amendment of the BiU . . . . 56 Section 3. Hearing on Bill and Answer . . . . 58 Section 4. Motion for a Decree . . . . . . 59 Section 5. Replication . . . . . . 63 Chapter V. Evidence . . . . . ■ . . 67 Section 1. Evidence of the Pleadings . . . . 67 Section 2. On Oral Evidence . . ■ ■ . . 71 Section 3. Affidavits . . . . ■ . . . 77 PAGE 1 11 12 XIV CONTENTS. Chaptek VI. The Hearing and Decree Section 1. The Hearing Section 2. The Decree PAGE . 82 , 82 . 84 PART II. Course of a Suit after Decree, and Incidental Proceedings . . 94 Chapteb I. Proceedings under the Decree . . . . 96 Chaptbe II. Proceedings in Chamters . . . . 107 Section 1. Ministerial Business . . . . • • 107 Section 2. Judicial Business in Chambers . . . . 119 Chapter III. Further Consideration . . • • 125 Chapter IV. Supplement and Eevivor . . • • 128 Chapter V. Motions . . . . • • . . 132 Section 1. Special Motions in General . . . . 133 Section 2. Principal Kinds of Motions . . . . 139 Section 3. Motions of Course . . . . • ■ 150 Chapter VI. Petitions .. .. ■• ..152 Section 1. Petitions in General . . . . . . 152 Section 2. Petitions of Course . . . . . . 155 Chapter VII. On Contempt . . . . . . 157 • Section 1. Contempt by Neglect to Appear . . . . 158 Section 2. Contempt by JNeglect to Answer .. ' .. 160 Section 3. Non-performance of Decrees and Orders . . 167 Chapter Vin. Suits by and against Particular Persons . . 173 Section 1. Infants . . . . . . . . 175 Section 2. Lunatics . . . . . . . . 179 Section 3. Married Women . . . . . . 181 Section i. Paupers . . . . . . . . 184 Chapter IX. On Appeal . . . . . . 187 Chapter X. Costs . . . . . . . . 195 Section 1. Of the Nature of Costs . . . . 195 Section 2. By whom Costs are paid . . . . . 198 Section 3. Costs, how taxed and paid . . . . 203 CONTENTS. XV PAET III. PAGE Proceedings withont Bill .. .. .. .. 209 Chaptee I. Special Cases . . . . . . 214 Chapteb n. Petitions for Opinion of the C!ourt . . 218 Chapter m. Settlements . . . . . . 220 Section 1. Infants and Incompetent Persons. . . ■ 220 Section 2. Preservation of Settled Property . . . . 224 Section 3. Management of Settled Property . . .-. 229 Chaptee IV. Trustees . . . . . . . . 236 Section 1. Summary Proceedings by Trustees . . 236 Section 2. Proceedings against Trustees . . . . 239 Chaptee V. Administration .. .. .. 242 Section 1. Siimmons by Executors or Administrators .. 242 Section 2. Summons against Executors or Administrators 246 Chaptee VI. Miscellaneous Summary Jurisdiction . . 248 Section 1. Solicitors . . . . . . . . 248 Section 2. Charities . . . . . . . . 251 Section 3. "Winding-up of Companies . . . . 265 Section 4. Begistration of Titles . . • • . . 261 Chaptee VIL County Courts Equitable Jurisdiction . . 264 APPENDIX. 1 Bills .. .. .. •• .. 269 1. Bill seeking an Injunction and Foreclosure . . 269 2. Bill seeking to settle the Construction of a Will and an Administration Decree . . . . 272 n. Writ of Summons indorsed on Copy of Bill serred . . 277 m. Appearance • . . • . . • • 278 IV. Interrogatories .. .. •• •• 278 V. Demurrers ■ . • • . . • • 280 1. Eor Want of Equity . . . . . . 280 2. For Want of Parties .. •• ..281 3. For Multifariousness . . • . • . 282 62 XVI CONTENTS. PAGE VI. Pleas .. 282 1. That Defendant is not such Personal Represen- tative as alleged .. 282 2. That Plaintiff is an Alien Enemy . .. 283 Vn. Answer • . .. 283 Vm. Defendant's Oath to Answer .. 286 IX. AfSdavit making Answer Evidence .. 287 IX.* Exceptions to Answer .. 287 X. Notice of Motion for Decree .. 288 XL Beplication .. 289 Xn. Subpoena to hear Judgment ,» .. 290 Xni. Subpoena ad, testificandMm . . .. 290 XIV. AfBdavit proving Exhibit . . .. 291 XV. Decrees and Orders .. 292 1. Decree in Foreclosure Suit .. 292 2. Final Foreclosure .. 293 3. Minutes of Decree in Administratic nSuit .. 295 4. Order for Injunction . . .. 296 6. Order of Revivor .. 296 XVi. Indorsement on Decree served .. 297 XVII. TsRiie.. .. 297 XVm. Summons to proceed on Decree .. 298 XIX. Advertisement for Creditors.. .. 299 XX. Certificate of Chief Clerk . . .. 300 XXT. Notice of Motion for Injunction .. 301 XXn. Writ of Injunction .. 302 XXni. Writ of Attachment .. 303 XXTV. Subpoena for Costs .. 304 XXV., XXVI. Petitions under Trustee Acts . 304, 307 XXVII. Petition under Infant's Settlement Act . .. 310 TABLE OF CASES. Amyot, in re PAOE .. 226 Attomey-Greneral v. Clapham • ■ .. 122 ■ ■ ■». Iroiiinoiigers ) Company .. 254 Bailey v. Birchall .. 251 Barrington's Settlement, in re .. 219 Baylis ». Watkins .. 76 Berry, in re . . • ■ .. 180 Bonfield «. Grant .. .. 180 Bonser v. Bradshaw • ■ ■ * .. 251 Bristol and North Somerset Railway Company, in rt i . . 260 Bnckeridge «. WhaUey . . • • • ■ .. 192 Burke, in re . . .. 180 Butler ». Gardener .. .. 136 Cambrian Railways Company's Scheme, in re . . .. 260 Cater's Trusts .. 238 Catling, in re • . 244 ChappeU v. Gregory .. 191 Chichester v. Hunter .. 130 Clark «. Jaqnes .. 136 Coombes v. Brookes .. 241 Cox V. Slater .. 266 Dalton, in re ,. 223 Davies v. Davies .. 180 Dubois V. Hole .. 182 Duggan's Trusts, in re . . .. 154 Egmont V. DareU .. 76 Evelyn v. Chippendale . . .. 207 Ford V. Earl Chesterfield .. 200 Eorsyth v. Ellice 75,76 Foster, in re . . .. 250 Goodday v. Sleigh ,. 148 Gravenor, in re ., 224 Green's Trusts, in re .. 219 XVIU TABLE OP CASES. Hargreavea' Settled Estates, in re Harper, in re Hart V. Montefiore Haymes v. Cooper Heming v. Swinnerton . . Hencage v. Aikin Hook, in re . . Hooper, in re Hope V. Carnegie Irby, inre .. Jenour v. Jenour JollifEe V. East Kinneir, in re Kniglit's Trusts Lewis V. Smith Light V. Light Meyrick «. Lawes Midland Counties Benefit Society, in Mitchell, in re . . Mockett's Trusts, in re . . Moggeridge v. Thackwell MolesForth v. Snead . . Muggeiidge's Trusts, in re Nesbitt V. Berridge t . Newman, in re . , Noble V. Meymott Onnerod, in re Parkinson v. Hanbnry . . Pemberton v. Barnes Perry v. Turpin Phillipott's Charity Philpott 1). St. George's Hospital Picard v. Hine Piddock V. Boulbee Piffard v. Beeby Rainsdon, in re Roberts, in re , . Roskell ®. Whitworth Rush, in re . . Sandford «. Sandf ord Saner v. Deaven Scotto V. Heritage PAOB 124 250 122 251 248 135 250 76 182 180 191 201 250 238 191 179 229 192 118, 123 219 254 62 219 34 224 201 240 192 106 17 252 254 266 180 17, 120 188 263 103 171 177 130 .. 266 TABLE OF CASES. XIX Simons v. M'Adam Skinner v. Sweet Sladdeu, in re Slattery v. Axton Strong, in re Sykes v. Dyson Taylor v. Dowlen r. Topham Thomas v. Eawlings Thompson, ex parte Tickner v. Smith Towsey v. Groves Tnrwin v. Gibson Wellesley r. Wellesley Whitehouse v. Partridge WiUiams v. Williams Wilson i\ Hood V. Eonnd Wood V. Boucher Wylly's Trusts York and North Midland Railway Company v. Hudson Young V. Femie 266 251 250 266 223 171 191 191 189 251 200 175 251 169, 241 148 192 251 251' 154 238 118 76 ELEMENTARY VIEW jrumbmgs m a 3nxt m €iimi^. INTKODUCTION. The object of this Work is to describe the mode in which the assistance of the Court of Chancery can be obtained by persons who are desirous of enforcing their equitable rights. It is no part of our plan to discuss what these rights are in particular cases : this is abundantly done in the treatises on Equity Juris- prudence, among which Mr. Josiah Smith's" Manual" win be found to contain, in a concise form, almost all points of ordinary occurrence, together with re- ferences to the passages in the elaborate treatises of Professor Story and Mr. Spence, from which ftiller information may be obtained. Here we need say no more than that the assistance given by the Courts of Equity consists partly in enforcing the payment of money, partly in enforcing the execution of deeds and peiSbrmance of contracts, and partly in restrain- ing various acts, the committal of which is judged L. B 2 IXtKODUCTXOX. to be inequitable : while in every case the defendant may be forced to answer on oath questions proposed to him by the plaintiff with reference to the subject of the suit. The right to have such answers given is termed the right to Discovery, as distinguished from the right to Relief, properly so called, to which it is usually subservient: it will be seen hereafter that the discovery is usually obtained at a much earlier stage of the suit than that at which specific relief is given. From the works just alluded to it may be learned what relief and what discovery are obtainable- under given circumstances; but no reUef nor discovery will ever be obtainable unless they are asked for in proper form. A great body of rules exist as to the form in which matters are to be brought before the Court, which rules are partly written in Acts of Parliament and the general orders of the Court, and partly not written in any authoritative form, but residing in the breasts of the Judges of the Court, in the same manner as the Common Law, as distinguished from the Statute Law, resides in the bosoms of the Judges of the three Courts at Westminster, and not in any authoritative written document : though in both cases ' treatises have been composed embodying these mat- ters in a written, but unauthoritative form. These rules are divided into two great branches: the rules of Pleading tell what is the most efficient form to adopt in shaping the written statements of the cases of the parties before the Court: the rules of Practice tell in what manner these written statements should be brought under the notice of the Court, and what INTEODUCTION. 3 steps should be taken to obtain the benefit of them. The standard work on the former subject is Lord Redesdale's " Treatise on the Pleadings in the Court of Chancery," which has been edited by Mr. Josiah W. Smith: the latter rvdes, which were very mate- rially altered by the legislation of 1852, are col- lected in the edition, by, Mr. Headlam, of Mr. Daniell's " Chancery Practice,"* and in the treatise of Mr. Sidney Smith. In these books the reader wiU find a fall discussion of all the matters treated of in the following work, together with references to the authorities bearing on the subject. In the last edition of Mr. Ayckbourn's treatise are given short statements of the old practice on various points, to- gether with the exact words of the statutes and orders of 1852, by which it has been altered : this book is thus rendered a convenient book of reference in practice. We have said that the law of the Court is contained' partly in written statutes and orders, and partly in the unwritten knowledge of the Judges. When any point arises on which both statutes and orders are silent, the Judge declares what has always been the practice of the Court on the point : sometimes he declines to do so until he has learned what is the opinion of unprejudiced persons who are most conver- sant with the matter in question, such as the officers of the Court to whose department it belongs ; this is ascertained by sending a question to the office, to which an answer is returned in the shape of a certi- * See also the last edition (1871), by Messrs. Field, Dunn and Biddle. b2 4 INTKODUCTION. ficate signed by the officers : or, if there be a differ- ence of opinion, more than one certificate will be returned. This certificate has no binding authority, though of course it will have weight with the Judge, by whose own opinion the practice is determined. Parliament, in the exercise of its supreme power, irom time to time passes statutes regulating the practice of the Court, and sometimes these statutes empower the Judges to make general orders,, filling up details left undetermined by the statutes. Besides these orders made in pursuance of a statute, the Judges have a power of making general orders to regulate any points which have hitherto been left untouched, or to alter any prior general orders, but of course without abrogating any part of a statute. The Judges have a discretionary power of relaxing these general orders in any particular case where the strict observance of them would work injustice. It may be observed that, in Hilary Term, 1860, aU the general orders previously made were abrogated (yritla. a few exceptions) and a series of new orders made (known as the Consolidated Orders), to which are appended schedules of forms of various Chancery proceedings. Many of the new orders are in fact repetitions, sometimes without variation, sometimes with slight variations, of the old orders, but the con- solidators wisely avoided any questions which might arise (as has been frequently the case ^vith Acts of Parliament) as to whether an order has been vh-- tually or impUedly repealed, by first repealing and then reviving. Many new orders have been made since Hilary Term, 1860. INTEODUCTION. 5 The business of the Court is carried on by Judges, at present seven in number, and various officers, who are principally occupied with merely ministerial, and not judicial functions. The Judges are the Lord High Chancellor, the Master of the Rolls, the Lords Justices of the Court of Appeal in Chancery, and the Vice-Chancellors. The Lord Chancellor is one of the few great officers of early times whose duties are not now executed by a commission. The office is held during the pleasure of the Crown, and is conferred by the delivery of the Great Seal : this was the seal by which alone in early times all royal -WTits and patents were authen- ticated, and it naturally followed that the Keeper of the Seal would not affix it to any document, till satisfied of the propriety of doing so. Every action at law had to be commenced by an original writ out of the Chancery, sealed with the Great Seal : this writ varied in form according to the circumstances of the case, and the power of framing new forms as occa- sion might require was in the thirteenth year of Edward I. given to the Clerks in Chancery by the Statute of Westminster the Second. But cases fre- quently occurred in which no original writ could be framed, so as to raise an action leading to a judg- ment which would do complete right ; although the defendant's conduct was " contrary to equity and good conscience," yet the complainant was " wholly without remedy at the Common Law." It seems that the evil of this was first felt to be pressing in the case of feoffinents to uses, where it is well known that before the passing of the Statute of Uses in 6 INTRODUCTION. 1536, the feoffee was absolute owner of the land at law, although he could not in conscience refuse to carry out the intention of the feoffor. The cestui que use finding that he could get no assistance against his feoffee irom any of the original writs which the Clerks in Chancery furnished to him, frequently petitioned the Chancellor himself to give redress. This the Chancellors began to do about the time of Richard II., by summoning the feoffees before them, and, after due investigation of the case, by ordering the doing of what appeared to be right. Moreover the -Chan- cellors of those times were generally civilians, to whom it seemed that the readiest mode of ascertain- ing the facts of the case was to ask the accused per- son what he knew. Thus we see how, by the agency of a writ called a Subpoena, calling on the defendant to appear and answer, the complainant was enabled to get the Eelief and Discovery which, as has been said, constitute the two branches of the assistance rendered by Courts of Equity. It wiU be readily understood that the account above given of the origin of the Equitable Jurisdiction of the Court is extremely imperfect. Besides his jurisdiction as head of the Court of Chancery, the person to whom the custody of the Great Seal is entrusted has various other duties and powers, with which we are not at present concerned. Sometimes this officer has not the title of Lord Chancellor, but only that of Lord Keeper; and some- times the seal is put in Commission, that is to say, is entrusted to two or more persons, who are usually selected fi:om among the Judges of the Common Law or Equity. INTRODUCTION. 7 The Master of the Rolls was originally nothing more than tlie keeper of the records in Chancery, and great obscurity hangs over his acquisition of ju- dicial power : he is now a judge, having jurisdiction over the same matters as the Lord Chancellor in his capacity of head of the Court of Chancery. Accord- ing to modern practice, all applications to the Court are referred in the first instance to the Master of the Rolls or one of the Vice-Chancellors, and nothing comes before the Lord Chancellor except by way of appeal from the first decision, which appeal is some- times heard by the Lord Chancellor alone, some- times by the Lords Justices alone, and sometimes by the Lord Chancellor and Lords Justices sitting to- gether. Of course, however, none of the inferior Judges can entertain applications, over which (as in lunacy and patent cases) the Lord Chancellor has original jurisdiction. Thus, if a patent" has been sealed by the Lord Chancellor, and enroEed in Chancery, any one who wishes to obtain the repeal of the grant for the Patent, must apply to the Lord Chancellor for a writ of scire facias ; which issues out of what is called the " common law side " of the Court of Chancery.* The Lords Justices, who are two in number, were first appointed under an Act of Parliament passed in 1851 :t they form a Court of Appeal in Chancery, and are also a Court of Appeal in Bankruptcy, and they have all the powers and jurisdiction which the * See 12 & 13 Vict. c. 109, regulating the practice of this side of the Court. t 14 & 15 Vict. c. 83. 8 INTRODUCTION.' Lord Chancellor has in Chancery, and have also, under the Queen's sign manual, jurisdiction in Lunacy. The Vice-Chancellors have been appointed from time to time under different statutes: one was ap- pointed in 1811, and two more, on the abolition of the equitable jurisdiction of the Court of Exchequer in 1842 : since that time the number has fluctuated, but is at present three. They and the Master of the Eolls have co-ordinate jurisdiction in the first instance over all matters of Equity, subject to the revision of the Court of Appeal. From the decision of any of these Judges in Chancery, an appeal lies to the House of Lords. The principal officers of the Court to whom our attention must be directed are the four Clerks of Records and Writs, the- two Examiners, the Regis- trars, the three Chief Clerks to the Master of the Rolls and to each of the Vice-Chancellors, and the six Taxing Masters. The duties belonging to these officers respectively cannot be conveniently stated here, but will be found in the ensuing pages. Though it is competent for any person to prose- cute or defend a suit in Equity on his own behalf, yet it is usual to make use of agents for the pur- pose ; the only persons allowed to practise as such agents are those who have been admitted by the Master of the Rolls to be Sohcitors of the Court, after having passed through the same course of training and examination as attorneys-at-law are obliged to undergo ; in fact, it seldom happens that INTRODUCTION. 9 any person is admitted a solicitor without having previously been admitted an attorney. Solicitors are allowed to represent their clients in almost aU parts of a suit, except those where a per- sonal appearance in Court before the Judge is re- quired from the party or his agent : here solicitors are, as a rule, excluded : the parties may appear in person, but if they use agents, these agents must be Barristers, or persons who have been called to the Bar by one of the four Inns of Court ; and, by the etiquette of the profession, these barristers cannot act except on instructions given to them by soli- citors. Besides thus representing the parties in Court, barristers give advice on the conduct of suits, and this advice cannot be obtained without the in- tervention of a solicitor. Though we thus see that it is in theory possible for a party to conduct his own suit in person, yet practically this can hardly be done. We shall there- fore throughout this work suppose the parties to be represented by solicitors, and shall frequently speak of the plaintiff or of the defendant, meaning their respective sohcitors ; this avoids the wearisome re- petition of the same word, while the context or the form of expression will sufficiently indicate those few cases where the party himself, and not his soli- citor, is spoken of. In the preceding slight sketch of the origin of the equitable jurisdiction of the Court of Chancery, we said that a petition embodying the cause of com- b5 10 INTRODUCTIOX. plaint was presented to the Chancellor : this petition is called a bill : and the filing of a bill is still the regular and most formal manner of commencing pro- ceedings in Chancery; when this has been done, an answer may be obtained, giving the necessary discovery ; and then a decree is made, giving the relief to* which the plaintiff has shown a title. A proceeding commenced by bill is termed a Suit, and the Course of a Suit up to Decree will form the sub- ject of our First Part. The Decree is by no means in general the end of the suit, but after that point the proceedings assume a character very different from what they had before ; moreover, there is often occasion in the course of a suit to adopt measures which cannot be considered as forming part of the ordinary course : these will be treated of in the Second Part. The assistance of the Court can also be had in some particular cases, without any bill filed : the proceedings in these cases, which are mostly taken under statutes, will be considered in our Third Part. 11 ) PAET I. THE REGULAR COURSE OF A SUIT UP TO DECREE. We have seen that in a Suit, the first thing to be done is to file a Bill : this bill is a statement of the plaintiff's case put into a proper form, which wiU be described in the First Chapter. The Second Chapter will explain how this bill is filed, and served on the defendant, after which the defendant appears, or submits to the jurisdiction of the Court : the plain- tiff may then serve him with interrogatories or ques- tions, by the answers to which the required discovery wiU be given. The Third Chapter will explain the courses open to the defendant to resist the plaintiff's claim to discovery, and also the form of the Answer in which, if compelled, he gives it. The steps to be taken by the plaintiff after an answer has been put in, with the view of obtaining the Decree of the Court, will be the subject of the Fourth Chapter, while the Fifth will treat of the mode of taking evi- dence as to the facts in dispute. In the Sixth, the hearing of the cause will be described ; and also the nature and form of the Decree, the obtaining of which is the last step with which we are concerned in the present Part. 12 ) CHAPTER I. THE BILL, ITS NATURE AND FORM. We learn, from Lord Redesdale's Treatise, that " A suit to the extraordinary jurisdiction of the Court of Chancery, on behalf of a subject merely, is com- menced by preferring a bill in the nature of a peti- tion to the Lord Chancellor. But if the suit is instituted on behalf of the Crown, or of those who partake of its prerogative or whose rights are under its particular protection, as the objects of a private charity, the matter of conaplaint is offered to the Court, by way of information, by the Attorney- General or other the proper officer, and not by way of petition." Between bills and informations there is so little difference, that we shall speak of the former only, pointing out from time to time the peculiarities of the latter. The bill is generally, if not invariably, prepared by counsel, who for this purpose is furnished with such papers as are necessary. We now refer the reader to the specimens of bills which will be found in the Appendix, No. I., and will then proceed to describe the various parts of which they consist, rnaking such observations ' as seem necessary for explaining the use of each part. THE BILL, ITS NATURE AND FORM. 13 These parts appear to be four in nvimber : tlie Title, the Address, the Statement, and the Prayer. Some of these will be found to include subordinate divi- sions. The title consists of the name of the Court, " In Chancery," and of the branch of the Court to which the suit is attached (which is selected by the plain- tiff at his pleasui-e), together with the names of the parties to the suit. We do not intend to state here the rules govern- ing the selection of proper parties to a suit, which, in spite of great simplifications introduced by the legis- lation of 1852, are stiU sometimes the subject of complicated considerations. In general we may say that (subject to certain statutory exceptions) all per- sons interested in the subject-matter of a suit with respect to its object are necessary parties to the suit. Sometimes, when there is a class of perscms all having the same interest, and the class consists of so large a number of individuals that they could not all be made parties without extreme inconvenience, it is allowed to name one or more of the class to represent the rest : and this may be done whether these persons appear as plaintiffs or defendants. The most common case is where a suit for the adminis- tration of the estate of a deceased person is brought by one creditor " on behalf of himself and all the other creditors of" the deceased : in this case the suit is termed a Creditor's Suit. It is clear that in such a case all the persons on whose behalf the suit is brought have the same inte- rest, it being the object of them all alike to make out 14 THE BILL, ITS NATUKE AND FOKM. the estate of tlie deceased to be as large as possible: and care must always be taken that no persons are joined as plaintiflFs between whom there is any oppo- sition of interest, and especially that no person be included among the plaintiffs who is also named as a defendant. Thus we may suppose a bill brought by a shareholder to wind up the affairs of a joint- stock company, and to make the directors respon- sible for alleged frauds, and that several of the shareholders have released the directors from all claims on account of the conduct impeached. To this biU all the shareholders would be proper parties ; but if they are very numerous they need not all be named, and clearly none could properly be named as plaintiffs except those who had refiised to execute the release : the biU would therefore be brought by A. B. on behalf of himself and all other shareholders in the'company except such as are named as defen- dants thereto, and except all others who have exe- cuted a certain deed of release hereinafter mentioned, dated, etc., and to this bill the defendants would be the directors, and one or more of the releasing share- holders. It is not usual to mention that persons are made defendants as representatives of a larger class. No general rule can be given as to the cases in which such representation will be allowed, the Court considering, on the circumstances of each case, whether substantially the interests of the class are secure : the persons who would have been necessary parties to the suit under the old practice, are served with notice of the decree, and may obtain an order of course to appear and take part in the proceedings THE BILL, ITS NATUEE AND FORM. 1 5 subsequent to the decree. The enactments on this head will be found in 15 & 16 Vict. c. 86, s. 42, which Act bears the title of " An Act to amend the prac- tice and course of proceeding in the High Court of Chancery,"' and is the basis of all the modern im- provements on the subject. Hereafter it will be shortly referred to as " the Jurisdiction Act." It will be shown hereafter in what manner the de- fendant can raise the objection that the parties to the suit are not properly chosen. "When the suit is commenced by information in- stead of by bill, the plaintiff is the Attorney-General for the time being : and if the information is brought to enforce a private right, it is usual to name some person at whose " relation " the Attorney-General acts ; such relator is responsible for the conduct of the suit and for the costs, in the same manner as an ordinary plaintiff. TTe must next consider the address by the plain- tiff to the Lord Chancellor, of which the form will be found in the Appendix : on every change in the custody of the Great Seal, notice is given of the title by which the new holder is to be addressed. "When a peer is plaintiff, the word "humbly" is omitted, and in an information, "informing" is substituted for " hvunbly complaining." It will be seen that the address contains the resi- dence and description of the plaintiff: if this be omitted, or given falsely, or show that the plaintiff resides out of the jurisdiction of the Court, it may be a ground for staying all proceedings in the suit irntU security shall have been given for the costs. 1 6 THE BlLLj ITS NATURE AND FORM. More is said on this subject at the end of our chap- ter on Costs. The statement of the Plaintiff's case next follows, and consists mainly of a history of the matter with respect to which the assistance of the Court is asked : this should contain an allegation of every fact on which the plaintiff relies, so as to give fair warning to the defendants of the case which they are required to meet : for the plaintiff will not be allowed to in- quire after by his interrogatories, nor to prove at the hearing, anything which does not tend to sup- port an allegation in his biU. In addition to this history of the matter, which corresponds to the stating part of the biR mentioned in Mitford's " Pleadings " and other old books, the statement often contains charges and pretences. Charges consist of allegations which the plaintiff does not know to be true, or at any rate is not able to prove ; but which he suspects to be true, and as to which he wishes to have the answer of the de- fendant. Charges are also used in stating, as a con- clusion of law, the rehef to which the plaintiff thinks himself entitled. Pretences are used when some de- fence is anticipated as likely to be set up, and it is wished to negative it at once. Specimens both of charges and pretences will be found in the prece- dents of the bills referred to : they are never neces- sary, though often convenient. The last paragraph of a bill used to be almost always and stiU is sometimes a .charge that the defen- dant has in his possession or power, some books and papers relating to the matter in question : this charge THE BILL, ITS NATURE AND FORM. 17 enables the plaintiff to ask whether the fact be not so, and if the answer admit the fact, the plaintiff can at once obtain the production of the documents, which may be of the greatest service to him. The plaintiff is not obliged, however, to insert this charge in the bUl, but may interrogate the defendant, as to the documents in his possession, even though there be no such charge.* And now the defendant very fre- quently (without interrogating as to documents) ob- tains an order by summons at the Judge's Chambers that the defendant make an affidavit, stating what documents he has in his possession, and that he pro- duce the same. See Seton on Decrees, 1040. Lastly, we come to the Prayer. This asks for the relief to which the plaintiff conceives that the case stated in his bill entitles him, and concludes with a prayer for general relief, under which any relief may be given to which a title is made out at the hearing : it is not, however, well to trust to this, but the spe- cific rehef sought should be expressly prayed, and this may even be done in the alternative, so that if the Court should not think that the case made out justifies the relief first asked for, yet the plaintiff may have some other to which he is entitled. As to the nature of the relief prayed for by bills, it is almost infinitely various. The pleader should in each case consider what decree he hopes to ob- tain at the hearing, and put this into the form of a prayer : the species of relief most usually sought are » Perry v. Turpin, 1 Kay, App. 49. In a recent case it is laid down that the Interrogatory as to documents ought to be omitted altogether. (See Piffard v. Beeby, 1 Law Reports, Eq. 623.) 18 THE BILL, ITS NATUEE AND FOKM. declarations of right, references for accounts, in- quiries, and the like, and the issuing of particular writs, as of injunction, ne exeat, etc. ; moreover, if the plaintiiF thinks that he is entitled to ask it, he should expressly pray that the defendant may pay all the costs of the suit, and it is usual to insert a prayer that all proper steps may be taken for carry- ing out in detail the objects sought. More will be learned as to the nature of prayers, by consulting what will be said on decrees in a fiiture chapter. The signature of the counsel who drew the bill follows the prayer. Without such signature no biU can be filed : and it is understood that it is to be regarded as a security that, judging from the written instructions .laid before the counsel of the case of the defendant as well as of the plaintiff, there ap- peared to him at the time of framing the biU to be good ground of suit. Mitf. PI. 48 (a). The bill concludes with the names of the defendants, and the name and address of the solicitor by whom it is filed: this address must be within three miles of the Eecord and Writ Clerks' OflSce in Chancery Lane, or else a place must be named within that distance, called an address for service, at which no- tices and other proceedings in the suit may be left. ( 19 ) CHAPTER 11. SEEA^CE or THE BILL AND CONSEQUENT PROCEEDINGS. After the bill lias been prepared it must be printed and filed, and copies served upon tbe defendants: the defendants must appear, and the plaintiff may then file and serve interrogatories for the examina- tion of the defendants. This chapter, therefore, divides itself into three sections. Section 1. Service of the Bill. When the bUl has been prepared by counsel, as explained in the last chapter, the next step is to have it printed. But whenever a bill prays a ivrit of injunction, or ne exeat, or is filed for the purpose, either solely or amongst other things, of making an infant a "Ward of Court, a written copy may be filed: in these cases, a printed copy must be filed within fourteen days, or otherwise the written copy tstU be taken off the file, and the suit must be recommenced. j\"o costs will be allowed in respect of a vsritten bill, without the special directions of the Court : and when a bill is taken off the file for default in filing a printed copy, the defendant is entitled to have his costs taxed and paid immediately. 20 SERVICE OF THE BILL, A copy of the bill, printed or written as the case may be, is taken to the Office of the Clerks of Re- cords and Writs, by the proper one of whom it will be filed, and will thus form the commencement of the record of the suit. The Clerks of B-ecords and "Writs are four in number, and business is distributed among them according to the initial letter of the surname of the first plaintiff in the suit; one undertakes the filing of the bill, and of all subsequent proceedings in suits, where the surname of the first plaintiff begins with any of the letters A, B, C, or D : the letters fi:om E to K belong to the second clerk ; those from L to Q to the third, while the fourth takes the re- mainder of the alphabet. As soon as the bill is filed, the Record and Writ Clerk win stamp any number of copies presented to him for that purpose, with a seal denoting the date of filing, and will mark them with a " reference to the record," consisting of the year in which the filin g takes place, the initial letter of the first plaintiff's surname, and a number denoting the place of this suit among those filed in the same year, and having the same initial letter : thus, if on any day of the year 1 858 there have been during that year twenty- five bUls filed having A for the first letter of the sur- name of the first plaintiff, and another is brought to the office having the same initial, the reference to the record for this one will be 1858 A 26. This refer- ence to the record is indorsed on all proceedings filed in the cause. So far the defendants may be ignorant that any suit is in contemplation ; the next step is to apprise AND CONSEQUEXT PROCEEDINGS. 21 them of its existence. This is done by delivering to each of them a copy of the bill bearing the seal men- tioned as proving the fact that a copy has been filed, and aJso having indorsed on it, either in writing or in print, a writ or letter firom the Queen to the de- fendant, commanding him within a limited time to appear to the bill ; this writ is in the form given in the Appendix, No. II. When it is found impossible to effect personal ser- vice on a defendant, but some other mode can be suggested of securing that the filing of the bill may come to his knowledge, the Court will sometimes allow of what is called " substituted service," or ser- vice upon such person or in such manner as will secure this object.* Thus, when a person keeps out of the way after having commenced an action at law against another, and the defendant at law asks the assistance of the Court of Chancery with respect to the subject of the action, substituted service will generally be ordered on the attorney of the plaintiff at law. Each defendant may require firom the plaintiff any number, not exceeding ten, of printed copies of the bill, on paying for them at the rate of one halfpenny the folio. We may here remark that the length of proceedings in Chancery is now counted at the shorter rate of seventy-two words to the folio, instead of ninety, which was the rate in use imtil the Order of the 2nd June, 1854. In the amendment of bills, however, the practice of the Record and Writ Clerks' Office is to reckon ninety Fords to a folio'. • See 10th Cons. Ord. rule 2. 22 SERVICE OP THE BILL, Section 2. Appearance of the Defendant. The writ indorsed on tlie bill served on each defendant commands him, within eight days, to " enter appearance " at the Record and Writ Clerks' Office. This writ comes in place of the old subpoena to appear and answer, the service of which was the mode of commencing suits from the earliest times untU the year 1852, when the present practice was substituted by the Jurisdiction Act, and the Orders made in pursuance of it. An appearance is entered by leaving with the Clerk of Eecords and Writs a slip of paper bearing the words given in the Appendix, No. III. : notice of the appearance should, the same day, be given to the plaintiff. The effect of this step is that the appearing defen- dant submits himself to the jurisdiction of the Court, and generally such submission is necessary to give the Court cognizance of the matter in dispute. If the defendant, having been served, neglect to ap- pear, the plaintiff may, within a time limited for the purpose by the general orders of the Court, enter an appearance for him : and there are other proceedings which may be adopted against a contumacious de- fendant, as we shall see hereafter, in our chapter on Contempt. and consequent pkoceedings. 23 Section 3. Interrogatories for the Examination of the Defendant. The Court ' of Chancery has always exercised a jurisdiction which, until recent years, was unknown to our Courts of Common Law,* by enforcing a dis- covery by the oath of the defendant of the truth of the matters in question in the suit ; and it is to the advantage which plaintiffs derived from this, that the Court owes its jurisdiction in several matters with which the Common Law Courts were in some mea- sure competent to deal. This discovery is obtained by requiring the defendant to put in and swear to the truth of written answers to written questions put to him by the plaintiff : these questions or interroga- tories were originally included in the bill, forming what was termed the interrogating part of it, and the first clause of the prayer was always that the defen- dant might answer the premises. The practice in this respect was considerably altered by the Orders of 1841, and by the Jurisdiction Act of 1852 the interrogatories are now a separate document from the bm. The interrogatories are drawn up and signed by counsel in the same manner as the bill : they gene- rally foUow the bill paragraph by paragraph, and contain the same statements, amplified and put into an interrogative form. The questions should be so framed that by no subtlety can an answer be given * See now the Common Law Procedure Act, 1854, sect. 51. 24 SERVICE OF THE BILL, to them, without giving either an admission or a denial of the truth of the statement in the bill, or a statement that the defendant is ignorant on the sub- ject inquired after. The form of interrogatories will be best understood from the specimen wtiich will be found in the Ap- pendix, No. IV., following the biUs already referred to. It >vill be observed that the interrogatories state the Court and the names of the parties to the suit, and also the nature of the document which follows. Then come the questions themselves, and at the end is found the signature of counsel, and a note stating which interrogatories each defendant is required to answer. It is not compulsory upon the plaintiff to file any interrogatories at all ; and in fact it frequently hap- pens that none are filed; of course then no discovery can be had. And even when discovery is required from some of the defendants, there may be others from whom none is sought ; and in every case it is in the discretion of the plaintiff what questions he shall put to each defendant: this discretion is exercised by the note placed by the plaintiff's counsel at the foot of the draft interrogatories. When drawn and settled, the interrogatories are engrossed on paper, and the engrossment is taken to the Clerk of Records and Writs for the proper division, by whom it is filed: this must be done within eight days from the time limited for the ap- pearance, of the defendant, or sixteen days from the date of the service of the bill upon him. AND CONSEQUENT PEOCEEDINGS. 25 When the interrogatories have been filed, and the defendants have appeared, the plaintiff's solicitor makes a copy of such of the interrogatories as each defendant is required to answer, and takes it to the oflBce: it is there compared with the engrossment, and, if found correct, is sealed by the clerk, to indi- cate that it has been so examined ; and then it is served on the defendant's solicitor, or on the defen- dant himself, supposing him to have appeared in person. After serving any document on the opposite party, it is well for the person who effects such service at once to make a memorandum of the time and place, in order that he may be able to swear tO' the fact, in case it should, at any subsequent stage of the suit, become requisite to do so. At common law, it is ordered that such a memorandum should be at once made on the writ, a&er service has been effected by showing the original and delivering a copy. L. ( 26 ) CHAPTER III. THE DEFENCE. We now come to tte codsideration of the steps which must be adopted by the defendant for the purpose of resisting the plaintiff's demand. These will vary according to the nature and extent of the defence which it is intended to set up ; if the defendant think that the case stated on the bill is not such as to entitle the plaintiff to any assistance firom the Court, the form of defence is termed a demurrer ; if the defendant can allege new matter which, when taken in conjunction with what is stated on the bill, shows that the plaintiff is not so entitled, the defence , is termed a plea ; when the defendant feels that he cannot resist giving the discovery required, he gives it by an answer, which, when the defendant disclaims all interest in the matters in question, is termed a disclaimer. An answer may also contain a statement of such new facts as the defendant thinks favourable to his case. After having answered the interrogatories, if any, the de;fendant may himself fUe interrogatories for the examination of the plaintiff, to which the plaintiff will be compelled to put in an answer. This chap- ter therefore will contain four sections : the first, on THE DEFENCE. 27 Demurrers ; the second, on Pleas ; the third, on Answers and Disclaimers ; and fourth, on Interro- gating the Plaintiff. Section 1. On Demurrers. "VVe have already said that the plaintiff should state on his bill every fact on which he relies as giving him a title to the relief prayed, and that nothing can be proved on his behalf at the hearing which is not stated on the bill, or which does not tend to support an allegation in the biU : it is clear there- fore, that if the statements are not such as to entitle the plaintiff to the relief sought, even supposing them to be fully proved and nothing to be proved in opposition, the plaintiff will not be able to get any rehef at the hearing. Moreover, since the right to have answers to the interrogatories is merely sub- sidiary to the right to rehef, when this fails the right to discovery fails also : hence, in case such a bill be filed, the plaintiff can get nothing by it, and the in- terest of aU parties requires that the suit should be put an end to as soon as possible. If therefore the defendant thinks that the bUl is such as above described, he is at liberty to take the objection at once, and thus save the expense and trouble of further proceedings : the mode of taking the objection is by putting in a demurrer. The word demurrer is derived through the Nor- man French, from the Latin demorari, and signifies a stoppage in pleading. At common law, a demurrer is the assertion by one of the litigant parties that c2 28 THE DEFENCE. the last pleading of Ms adversary is not sufficient in law ; thus, if a defendant demur, instead of ;^utting in a plea, he alleges that the declaration does not disclose any ground of action ; and if the plaintiff demur, instead of replying, he alleges that the plea does not disclose any sufficient answer to the deck-" ration : in each case the demurrer admits the truth of the facts alleged, but disputes their sufficiency. Now, in considering a biU in Chancery as analo- gous to a declaration at Law, we must remember that the former has two objects, relief and discovery : and the primary object of a demurrer is to resist the giving the discovery, which, as we have already said, is usually done by alleging that the plaintiff has not shown any right to relief, to which that to discovery is usually subsidiary. Cases however are not want- ing in which a demurrer will protect the defendant from giving the discovery, although the bill shows a title to relief. A demurrer in Chancery will therefore be seen to be exactly analogous to a de- murrer to a declaration at Law. In both cases, if the demurrer be held sufficient when argued, there is an end to the suit ; if held insufficient, the plain- tiff at Law has judgment, unless the defendant have put in pleas, in which case the pleas are proceeded upon as if no demurrer had been put in. In Chan- cery, we shall see hereafter that if a demurrer be overruled on argument, the defendant must resort to some other defence. In Mitford's " Pleading," and many other books, is given a classification of the grounds on which bills praying relief may be demurrable, which grounds THE DEFENCE. 29 are reduced to nine classes; they are as follows : — (1) that the subject of the suit is not within the jurisdiction of a Court of Equity ; (2) that some other Court of Equity has the proper jurisdiction; (3) that the plaintiff is not entitled to sue by reason of some personal disability; (4) that he has no interest in the subject, or no title to institute a suit concerning it ; (5) that he has no right to call on the defendant concerning the subject of the suit ; (6) that the de- fendant has not that interest in the subject which can make him liable to the claims of the plaintiff; (7) that for some reason founded on the substance of the case the plaintiff is not entitled to the relief he prays ; to these may be added (8) the deficiency of the biU to answer the purposes of complete justice, and (9) the impropriety of confounding distinct sub- jects in the same bill, or of unnecessarily multiplying suits. Of these the first is called a Demurrer for want of Equity ; the eighth, for want of Parties ; and the first branch of the ninth, for Midtifariousness : the rest have no distinct names. Of the three just mentioned, which are those most commonly met with, the nature sufficiently appears fi:om their name and description : as to the rest, we must refer to Mitford or the other works on pleading. The forms of Demurrer for want of Equity, want of Parties, and Multifariousness, will be found in the Appendix, No. V. The title to a demurrer, as the reader will have observed, gives the name of the Court and of the parties to the suit, and also the name of the docu- 30 THE DEFENCE. ment which follows : the demurrer itself then com- mences by a protestation of the falsehood of the statements of the bill, which is intended to prevent the defendant being concluded by the admission which, by demurring, he makes, argumenti gratia, of the truth of the statements of the bill ; by it the de- fendant reserves to himself the right of denying these statements in any other proceeding, or in the same suit in case the demurrer be adjudged insufficient. A cause of demurrer is then stated, together with a general allegation of the existence of other grounds on which the bill is demurrable, after which the de- fendant prays to be dismissed out of the Court, having been paid his costs, and without making answer to the bill. When a demurrer comes on for hearing, the de- fendant may raise any objection to the biU whiclj. could have been taken by demurrer, although that objection be not specifically pointed out : this is called demurring ore tenus, but the negligence of the defendant in omitting to call the attention of the plaintiff to the defect in his bill at the proper time win generally be punished in the disposal of the costs of the suit. [See 14th Cons. Ord. r. l.J A demurrer is usually drawn and must be signed by counsel : it is engrossed on paper, and filed with the proper Clerk of Records and Writs ; and notice of the filing must on the same day be given to the plaintiff's solicitor. A defendant may demur alone to any bill at any time within twelve days after his appearance thereto. If, however, he wish to demur to a part only of the THE DEFENCE. 31 bill, and to plead to or answer the remainder, he has (if an answer have been required from him) twenty- eight days from the service of the interrogatories upon him or his solicitor, within which he may so demur, plead, or answer, not demurring alone ; and (if no answer have been required from him) he may put in such demurrer, plea, or answer (not demurring alone), at any time within fourteen days after the expiration of the time within which he might have been served with the interrogatories, had there been any, that is to say, at any time mthin thirty days after the ser- vice of the copy of the bill upon him. The time for pleading to or answering the whole bill is the same as above. On receiving notice that a demurrer has been filed, the plaintiff's solicitor should procure a copy from the Kecord and Writ OflEice, and lay it, together with a copy of the bill, before his counsel, who will consider whether the bill is re%lly open to the objec- tion taken by the defendant. If so, he will amend the bill, which the plaintiff is at liberty to do on paying to the defendant twenty shillings for his costs : more ■\vill be said in the next chapter on the amendment of bills. But if the plaintiff consider that the demurrer is groundless, he must proceed to set it down, in order to take the judgment of the Court on the paint : this must be done, if the demurrer be to the whole bill, within twelve days after it has been filed ; as otherwise the plaintiff, unless within such twelve days he have served an order for leave to amend his biU, will be held to have submitted to the demurrer, and the defendant will be entitled to his costs. If, 32 THE DEFENCE. hojvever, the demurrer be to part only of the bill, the plaintiff may set the demurrer down for argu- ment at any time within three weeks from the filing thereof, or he will in like manner be held to have submitted to the demurrer, unless within such three ■weeks he have served an order for leave to amend his bin. The defendant may, if he please, set down the demurrer. In order to procure the setting down of the de- murrer, a petition is presented, on which an Order of Course will be granted, and the registrar in attend^ ance will thereupon set down the demurrer. As to what is meant by an Order of Course, see the third section of the fifth chapter of our Second Part. By setting down is meant that the name of the cause is entered at the bottom of a list kept in the Registrar's Office of the matters ready to come on before each branch of the Court ; in this list, opposite to the name of each cause, is marked the stage at which it is about to come on for hearing. A certain number of causes, usually twelve, are taken from the top of this list, and entered in the paper of matters to come on before the Court each day : but in the case of a demurrer, the Court will often grant an application that the cause may be advanced, that is, placed at or near to the top of the list, so that it may come on for hearing very soon : this is done because demurrers may be put in merely for the sake of gain- ing time, and putting off the evil day of answering the interrogatories. Notice of the setting down is given to the other party by service of a copy of the order for that purpose. THE DEFENCE. 33 When the demurrer has been set down, both sides instruct their counsel to appear upon the argument ; the briefs consist of a copy of the bUl and of the de- murrer, and copies of the same papers must be sup- plied for the use of the judge. No other documents are necessary, for the demurrer merely demands the judgment of the Court whether the allegations of the bin support the plaintiff's claim to relief: and on this question, clearly, no extraneous matter can have any bearing. When the day of hearing arrives, the cause is called on in its tiun, and the coimsel for the defen- dant urge their objections to the biU, usually read- ing through the whole of it: the plaintiff's counsel support it, and one of the counsel for the defendant rephes. It has already been observed that use may be made of any objection appearing on the bill, although not expressed in the demurrer, but in aU the argument, the allegations of fact contained in the bUl are admitted as incontrovertible. This rule, however, is confined to allegations of fact, and does not extend to conclusions of law, which may for the sake of perspicuity be stated in the bUl. Thus, if the bill is brought by a plaintiff in the character of personal representative to A., and state that A. died intestate, that letters of administration were granted to B., who by wiU appointed C, the plaintiff, his executor ; that B. died, and his wiU was proved by C, " who thereupon became, and now is, the sole legal personal representative of the said" A. ; here the bill would be demurrable, for want of showing that C. represents A., although an allegation be con- c-5 34 THE DEFENCE. tained in it that C. now is the representative : this allegation, being a mere conclusion of law, not fol- lowing &om the facts stated, is not admitted hj the demurrer : and the plaintiff is not at liberty to bring any evidence before the Court to prove the truth of the allegation, for instance, that letters of adminis- tration de bonis non to A. had been granted to C. : this fact, if true, should have been stated in the bill. It is also settled that the defendant does not, by demurring to the bill, admit the truth of charges of fraud contained therein.* After hearing counsel, the Judge will either over- rule the demurrer or wiU allow it, with or without leave to amend. In the last case, if the demurrer be to the whole bill, the suit is at an end, and, in the absence of an order to the contrary, the plaintiff must at once pay to the defendant his costs of suit and of the demurrer. If a demurrer to part of a bill be allowed, the Court often gives the plaintiff leave to amend his biQ, on payment of the defendant's costs. It will not often happen that a demurrer is allowed without leave to amend, except in those cases where the bill has been drawn with a view to obtain the decision of the Court on some short point of law, with as little delay and expense as possible. Thus if a doubt arise on the construction of a will, and in one view of it a particular person is entitled to the residue, and in the other view he is entitled to nothing, a biH may be filed by him against the executors and the other proper parties praying for • See NeabHt v. Berridge, 9 Jur. N. S. 1044. THE DEFENCE. 35 an account of the residue : the bill would set out so much of the will as is necessary to show the point in question, and would make the usual allegations that the defendants had proved the will and possessed themselves of the personal estate of the testator: these allegations are sufficient to entitle the plaintiff" to discovery and relief, supposing his construction of the will to be the correct one ; otherwise, he has no interest in the residue, and of coiu'se is not en- titled to any account of it. Hence the only point at issue can be fully decided on the hearing of a de- murrer to the bin, and if the Court determine against the plaintiff's construction, it will allow the demur- rer : here there clearly could be no object gained by giving leave to amend, and therefore the allowance will be simple. But often when a demurrer is allowed, the plain- tiff's counsel is able to suggest to the Court facts, the statement of which in the biU would cure the defect which has been pointed out ; if so, leave to amend wiH generally be given, under which these statements can be inserted, and matters proceed de novo. On the general subject of amending bills we must refer the reader to the next chapter, and shall here only observe, that if a demurrer be allowed with leave to amend, it is considered an abuse of the indulgence of the Court if the plaintiff either strike out the statement of any fact which he knows to be true, or insert any statement which he knows to be false. If the demmrer be overruled, the suit wiU proceed as though no demurrer had ever been put in ; that 36 THK DEFENCE. is to say, if the defendant have demurred alone, he must put in his answer, if he have been served with interrogatories, unless he is in a position to put in a plea : the nature of pleas is considered in the next section. On the hearing of a demurrer, the Court usually makes an order respecting the costs of it ; otherwise, the costs are borne by the unsuccessM party. A demurrer must be so framed as to rely only on facts stated in the bill, otherwise it wiU be what is called a speaking demurrer, and will be overruled. Section 2. On Pleas. We have seen that, by demurring, the defendant asserts that the plaintiff, by his own showing, is not entitled to the relief he ask-s; but it may happen that the defendant is acquainted with one or more ,. facts, which do not appear in the biU, but which would, if there inserted, render the whole demur- rable. Of these he cannot avail himself by demur- rer, and yet it would be unjust if he should be put to the trouble and expense of answering, merely because the plaintiff had not pleased to sta,te the whole truth on his bill, while there existed a short and simple answer to the claim : in such a case, the proper form to adopt for the defence is that termed a Plea. The principal grounds of pleas are distri- buted by Lord Redesdale into twelve classes, as fol- lows : (1) that the subject of the suit is not within the jurisdiction of a Court of Equity ; (2) that some other Court of Equity has the proper jurisdiction ; (3) that THE DEFENCE. 37 the plaintiff is not entitled to sue by reason of some personal disability ; (4) that the plaintiff is not the person he pretends to be, or does not sustain the character he assumes; (5) that the plaintiff has no interest in the subject, or no right to institute a suit concerning it ; (6) that he has no right to call on the defendant concerning it; (7) that the defendant is not the person he is alleged to be, or does not sustain the character he is alleged to bear ; (8) that the defendant has not that interest in the subject which can make him liable to the demands of the plaintiff; (9) that for some reason, founded on the substance of the case, the plaintiff is not entitled to the relief he prays; (10) that the defendant has an equal claim to the protection of a Court of Equity to defend his possession, as the plaintiff has to the assistance of the Court to assert his right; (11) the deficiency of a bill to answer the purposes of com- plete justice; and (12) the impropriety of unneces sarily multiplying suits may be shown by way of plea : but the inconvenience which may arise from confounding distinct matters in the same bill, as it must be apparent on the biU itself, unless very art- ftdly framed, can in general only be alleged by de- murrer. Of these the ninth class, called Pleas in Bar, are sub-divided as follows : they are pleas of matter of record or as of record in the Court itself, or in some other Court of Equity; such are pleas of a decree or order of dismission determining the rights of the parties, or of another suit pending between the same parties for the same matter: or they are pleas of 38 THE DEFENCE. matter of record or as of record in some Court, not a Court of Equity; such are pleas of a fine, a re- covery, or a judgment at law, or sentence of some other Court : or lastly, they are pleas of matter in pais, which are principally pleas of a stated account, an award, a release, a will, conveyance, or other in- strument controlling the rights of the parties, or a plea of some statute, as of the Statute of Frauds, or of Limitations, pleaded with the averments necessary to bring the matter in question within the particular statute. It wiU be observed that all these classes consist of short allegations of fact, which is indeed essential to the nature of a plea, which may be described to be a short statement of fact, the insertion of which into the biU would have rendered it demurrable. Considering the bill as equivalent to a Declaration at Law, a Plea in Equity corresponds to a Plea at Law, by way of confession and avoidance, which confesses the truth of the declaration, but avoids it by showing new matter, which bars the plaintiflF's right to recover. Pleas are not favoured in Equity, and considerable strictness is required in the mode of stating the matter; and any irregularity will cause the plea to be overruled. For the rules re- specting each of these classes we must refer to Lord Eedesdale's work, and to the " Treatise on Pleas" by Mr. Beames. In the Appendix, No. VI., will be found some specimens of pleas. A plea is usually drawn, and must be signed by counsel: it is engrossed on paper, and must then THE DEFENCE. 39 be signed and sworn by the defendant, except in certain cases where this signature and oath are dis- pensed ^vith, an enumeration of which will be found in Lord Redesdale's " Treatise." The object of thus requiring an oath to the truth of the statements of the plea is to give the plaintiff some guarantee that the plea is not put in wantonly for the mere pur- pose of delay. This is secured partly by the signa- ture of counsel, required both to a demurrer and to a plea, which shows that in his opinion the pleading is good in point of law ; and in the case of a de- murrer this is sufficient ; but as a plea introduces new matter, something more is requisite to provide for the possibility of false statements of fact being laid before the counsel ; this is guarded against by requiring a defendant to swear to the truth of any plea which he may wish to put in. It will be found on examination that the reason of this rule does not apply in the case of the exceptions to it above alluded to. An account of the mode in which pleadings are sworn will find a more convenient place in the next section. The plea having been engrossed, and perfected, if necessary, by the signature and oath of the defen- dant, is taken to the Eecord and "Writ Clerk, and by him is filed : notice of the filing is on the same day served on the plaintiff. The time within which a plea must be filed has been previously stated. On receiving notice that a plea has been filed, the plaintiff should procure a copy of it from the office, and lay it before his counsel, together with fuU in- 40 THE DEFENCE. formation as to the truth or falsehood of the matter pleaded. Now, in considering the plea, the first question will be, whether it is sufficient in law : that is to say, whether the insertion into the bill of the statentent contained in the plea would render the whole demurrable. If the plaintiff think that it would not do so, his course is to set down the plea for hearing, of which the equivalent" in common-law pleading is demurring to a plea by way of confession and avoidance. If the plaintiff think that the plea does satisfy this test, he must next ask whether the allegation is true ; if not, he must reply, which corre- sponds to delivering a replication traversing the new matter in a plea by way of confession and avoidance. If the allegation in the plea be sufficient and true, but the plaintiff can produce new matter which will avoid its effect, he must amend his biU, introducing, by way of pretence or otherwise, a statement of the matters contained in the plea, and also a substantive allegation of the new matter by which he avoids it ; in such a case he would, at common law, reply by way of confession and avoidance, but such special replications are not now in use in Chancery, the pur- pose being sufficiently answered by the practice of amendment, as we shall see in the next chapter. Lastly, it sometimes happens that the matter of the plea is both sufficient and true, and that no sufficient answer exists to it ; in such a case the plaintiff must abandon his suit, and pay the defendant his costs ; this will but seldom happen, unless there has been a want of due diligence on the part of the plaintiff in making inquiries before commencing proceedings. THE DEFENCE. 41 Of the four courses thus open to the plaintiff, the first onlj is pecuHar to the case of pleas ; the others are also adopted after answer, and will be more con- veniently discussed in the next chapter : it being ob- served, however, that by replying to a plea, the plain- tiff admits that it is sufficient in law, and cannot afterwards raise any question as to its sufficiency : and that if the defendant after replication fail to prove the truth of the plea, he will be compelled to give the discovery required, not by way of formal answer, including his own case, but by way of mere answers to interrogatories put for the purpose of eliciting it. Upon the filing of a plea, either party may at once set it down for argument, but (whether the plea is to the whole or part of the bill) it must be set down within three weeks after the filing thereof: others wise, and if the plaintiff does not within such three weeks either serve an order for leave to amend his biU, or by notice in vsnriting imdertake to reply to the plea, the plea will be held good, and the defen- dant win be entitled to his costs, and niay, if the plea be to the whole bill, obtain, as of course, an order to dismiss the biU. A plea is set down for hearing in the same man^ ner as that aheady described in the case of a de- murrer ; and the Court wiU often give leave to ad- vance it. The papers suppKed to the Judge and counsel will be copies of the biU and of the plea, and on these the argument will proceed in exactly the same manner as on a demurrer to a biU embodying 42 THE DEFENCE. both documents : eacli side is at liberty to read any part of the bill or of the plea. On the hearing of a plea, the Court usually pro- nounces one of the four following orders : that the plea be simply allowed; that the benefit of it be saved to the hearing ; that it be allowed to stand for an answer, with or without liberty to except; or that it be overruled. In the first case, which will be when the Court considers the matter of the plea sufficient in law, the plaintiflf must either, by undertaking to reply, dispute the truth of the plea, or he must sub- mit to have his bill dismissed with costs, unless the Court give special leave to amend. In the second case, the Court thinks that so far as appears the plea may be a defence, but that there may be matter disclosed in evidence which would avoid it, supposing it strictly true, which question the Court will not preclude. The plea vnU be allowed to stand for an answer whenever the Court thinks that, though the matter disclosed may be a good defence, yet it is not properly brought forward by way of plea, as for instance, if it do not fulfil the condition of being a short statement of fact; for if the defence consist of several circumstances, it is not allowed to excuse the defendant from giving the dis- covery, and it should be adduced by answer. We shall see in the next chapter that excepting is the mode by which the plaintiff takes the judgment of the Court as to the sufficiency of the answers given to his interrogatories. If the plea be overruled, the defendant must proceed to put in his answer. THE DEFENCE. 43 Other orders are sometimes made on the hearing of a plea: for instance, leave may be given to amend the plea, or to plead de novo. Before dismissing the subject of demurrers and pleas, we may remark, as has been incidentally stated above, that either the one or the other may be put in to part only of a bill, while some other course is adopted as to the remainder. In such a case, the pleading is entitled " The Demurrer (or Plea) of the above-named defendant C. D. to so much of the said plaintiff's biU of complaint as prays," etc. Sometimes the demurrer or plea is put in to the discovery only. It has not been thought necessary to encumber the foregoing sketch with the constant repetition of the words, " so much of the bill as the demurrer extends to," or the like. If any matters be inquired after by the interrogatories, which, if true as alleged in the bill, would invalidate the plea, it must be accompanied by an answer to these interrogatories, denying the correctness of the statements of the "biU on these points. Section 3. On Answers and Disclaimers. It is unnecessary to say much on the subject of disclaimers, which are not often in use : a disclaim- ing defendant alleges that he has not any right or title, legal or equitable, and that he does not and never did claim title to the subject matter of the suit. Of course, a defendant wiU not be allowed by dis- claiming to avoid giving to the plaintiff any discovery which he may require. If a defendant being in a 44 THE DEFENCE. position to disclaim does disclaim, and have not been guilty of any improper conduct, the plaintiff usually pays his costs, and obtains the dismissal of the bill against him. If a defendant does not wish to disclaim, and can- not avail himself of a plea or a demurrer, he has no choice but to give by his answer the discovery sought, and along with the answers to -the interro- gatories, he may state any facts which he intends to use at the hearing. In case no interrogatories have been delivered to him, he need not put in any answer unless he please ; but he is at hberty to put in what is called a voluntary answer, containing merely such facts as are material to his case : and if the defendant, not having been required to answer, do not answer, he will be considered to have traversed or denied the case made by the bill. A voluntary answer must be put in within fourteen days after the expiration of the time within which the defendant might have been served with interrogatories, or thirty days from the date of the service of the^ biU upon him.* The defendant's answer is usually drawn and must be signed by counsel: the instructions for answer will consist of copies of the biU and interrogatories, with the defendant's answer to each interrogatory: these the defendant's solicitor must have procured from the defendant himself. These papers must be accompanied by any other documents necessary to disclose the case which the defendant means to set up. • See 37th Cona. Ord. rale 5. THE DEFENCE. 45 The form and general nature of answers will be understood from the example given in the Appendix, No. VII. It wiU be seen that the answer is. entitled in a manner similar to the other pleadings of which we have given examples. The body of an answer is divided into paragraphs in the same manner as a bill ; the earlier part generally consists of answers to interrogatories, intermixed with the statement of the defendant's own case. Towards the end, there is often a denial that the defendant knows anything about some of the matters interrogated upon, and in the same position, is often found some charge or conclusion of law which the defendant conceives that the foregoing matter supports : this is not in any way necessary, but it is convenient, as showing what the case is on which the defendant relies ; and neg- lect thus to show this may have an injurious effect on the defendant's position, when the question of costs comes to be discussed. If the defendant think that the biU is- demurrable, although he did not choose to take the objection in that form, it is usual for him to claim by answer the same benefit as if he had demurred to the bill : and if on the whole he thinks that no decree ought to be given against him, he submits that the bill ought to be dismissed as against him with costs. It wiU be observed • that answers are usually drawn in the first person of the defendant, in which form it is obligatory to draw affidavits. At the foot of the main body of the answer is found the signature of the counsel, and after that 46 THE DEFENCE. the schedules, if any. These consist of statements of accounts, or lists of documents, or other such matters as could not be conveniently introduced into the body of the answer, but are merely referred to in it. At the end of all comes the signature of the defendant, and the jurat or attestation of the fact that the defendant has sworn to the truth of the answer. This oath and signature are in general essential to an answer; but they are sometimes dispensed with by consent, when the defendant is absent from Eng- land, in some place not readily accessible. The oath is taken either before one of the Clerks of Records and Writs, or the Clerk of Enrolments, or before one of the persons styled " Commissioners to ad- minister Oaths in Chancery," in England or else- where as the case may be, who are sohcitors whom, on proof of their respectability, the Lord Chancellor has appointed to take such oaths. Moreover, pro- vision is made* for the recognition by the Court of any oaths taken out of England, before any Judge or other officer having power to administer oaths withia the dominions of Her Majesty, or before any British Consul or Vice-Consul out of these domi- nions: and sometimes answers are sworn before Commissioners specially appointed for the purpose. In every case, the jurat wiU express the circum- stances and the character in which the person acts who administers the oath. The form of the oath administered wiU be found • See 15 & 16 Vict. cap. 86, sec. 22. THE DEFENCE. 47 after the specimen of an answer to which we have before referred. Appendix, No. VIII. It wiU be observed that this oath is not an absolute assertion of the truth of all the statements contained in the answer, but of the truth of those only of which the defendant professes to be personally cognizant, and of his belief of the rest ; this consideration will be found to be important with reference to the expe- diency of filing a replication. Any erasure or interlineation in the jurat is looked at with great jealousy, and in case a mistake has been made, it is better to strike through the whole, and rewrite it, rather than attempt any alteration : any alteration in any part of the answer after it has been sworn would be fatal, and therefore it is the practice to authenticate any alterations which may have been necessarily made before the swearing, by the initials of the person who takes the answer. Formerly answers were engrossed on parchment, and then filed : now they are printed in the same manner as biUs, and a defendant may either swear to and file a printed answer, or may swear to and file an answer written bookwise on paper of the same size and description as that on which bills are printed. •In the latter case he must, at the time of filing it, leave a fair copy with the Clerk of Records and Writs, who will examine the copy with the original, and return it with a certificate that it is fit for. print- ing. The defendant will then cause the answer to be printed from such certified copy. [See Orders of 6th March, I860.] ~ Notice of the filing is on the same day given to the plaintifil 48 THE DEFENCE, If the defendant be required to answer, he must do so within twenty-eight days of the service of the interrogatories upon him :* in practice, however, this time is frequently extended, on application made by the defendant to the Judge -or his Chief Clerk at Chambers. [See 15 & 16 Yict. c. 80, s. 26.] "When the answer is filed, the plaintiff should pro- cure a printed office copy, which the defendant is bound to supply to him on demand, the plaintiff paying for such copy the amount of the stamp, (five shillings,) and fourpence per foho, according to the length of the answer. The plaintiff is also entitled to any additional number of printed copies of the answer (not exceeding ten) at the rate of one half- penny per folio. We may observe that if two or more of the defen- dants have the same interest in the suit, they may join in one answer ; and if this can be done, it is generally necessary that they should so join : for if, in the event of the suit, costs are ordered to be paid to them, one set only wlE ordinarily be allowed, that is to say, not more than would have been due, sup- posing that they had joined in one defence ; this one set of costs is sometimes given wholly to one of the severing defendants, and sometimes is divided be- tween them. Section 4. Interrogatories for the Examination of the Plaintiff. It may often happen that the plaintiff is acquainted with matters which are favourable to the defendant's * 37th Cons. Ord. rule 4. THE DEFENCE. 49 case, and which do not appear on the bill, but which the defendant has no ready means of proving except by the plaintiff's own oath ; in fact, the defendant may require discovery from the plaintiflF. To obtain this, the defendant was formerly obliged to file what was called a cross-bill against the plaintiff, who by putting in his answer thereto gave the required dis- covery. This course involved unnecessary expense, and now the same object is accomplished by the defendant filing interrogatories for the examination of the plaintiff. This can be done at any time after the defendant has put in a sufficient answer. The interrogatories are usually drawn and signed by counsel; they are preceded by a concise state- ment of the subjects on which a discovery is sought, which statement must, it is conceived, be confined to matters stated on the defendant's answer ; for the defendant will not be at liberty to use facts which do not appear upon his answer, and hence he can have no need of a discovery on any other matters. The interrogatories are engrossed on paper, and filed in the Record and Writ Office ; a sealed copy is then delivered to the plaintiff, who is bound to put in an answer ; this answer wiU be printed* and will be similar in form to the defendant's answer to the plaintiff's interrogatories, but wiU be confined to , giving the discovery required, and will not contain new matter : if the discovery be not fully given, the defendant may except to the answer, and proceed- ings will be taken similar to those which a plaintiff * See 11th Order of March, 1860. L. B 50 THE DEFENCE. takes to enforce a sufficient answer from the defen- dant,, as will be described in the next chapter. It will sometimes happen that the defendant requires relief as well as discoTery from the plain- tiff, in respect of the matters in question in the original suit ; in such a case a cross suit must be brought, and carried on to regular course. No prayer for relief can be appended to the concise statement. ( 51 ) CHAPTEE IV. ON THE plaintiff's PEOCEEDINGS AFTER ANSWER. Formerly bills were frequently filed merely for the purpose of obtaining a discovery in aid of an action at law between the same parties : in such a case the object of the suit was obtained, as soon as a suiSScient answer had been put in, and the defendant was then entitled to his costs. But such suits cannot now be often necessary ; for by the Common Law Procedure Act of 1854, the parties in any cause may interrogate each other, and the Common Law Court wiU enforce the giving the required discovery, without any re- course being had to Equity. Such bills were termed bills of discovery, not be- cause they alone sought discovery, but because they sought discovery and nothing else. But usually by obtaining the discovery, the plain- tiff has only got one part of what he seeks : his next aim is to get a decree. With this object, copies of the bill, interrogatories, and answer are laid before the plaintiflF's counsel, with instructions to advise on the sufficiency of the answer and further proceedings. On perusing these papers, the first question that arises is whether the answer is sufficient; that is, whether it fairly gives answers to the interrogatories : d2 52 PEOCEEDINGS AFTER ANSWER. if not, the plaintiff should except to it for insuiB- ciency. But if the answer be sufficient, the next consideration is whether the plaintiff can with ad- vantage introduce into his bill any new matter, by way of confession and avoidance of any part of the defendant's case : if so, this must be done by amend- ment. If the answer, be sufficient, and no new matter occur which can be advantageously intro- duced, it remains to take the judgment of the Court on the truth and effect of the matters stated on the bill and answer. There are three ways of doing this: if the plaintiff .is content to rest his case on so much of the bill as is admitted by the answer, and also to admit the truth of all the statements of the answer, he may set down the cause to bs heard on bill and answer ; if he wish to be able to support his bill, and to contradict parts of the answer by evi- dence, without putting the defendant to the expense and trouble of proving the whole of the answer, he must give notice of motion for a decree ; finally, if he think it expedient to deny the truth of the answer in toto, he does so by ffling a replication, which is equivalent to traversing or contradicting the defen- dant's case. We wiU discuss these three courses in order. Section 1. Exceptions to the Defendant's Answer. "We have already stated that excepting to the de- fendant's answer is the mode in which the plaintiff objects that the answer does not give full answers to the interrogatories. The objection is taken by filing a PROCEEDINGS AFTEE ANSflTSE, 53 document in the Record and Writ Clerks' Office, the nature of which -will be understood by the perusal of the specimen given in the Appendix, No. IX. The draft of the exceptions is usually prepared, and must be signed by counsel : it is then copied on paper, and filed in the Kecord and Writ Office, after which notice of the filing must be given to the de- fendant. Exceptions must be filed within six weeks of the filing of the answer, exclusive of vacations, otherwise the answer wiU be deemed sufficient. On receiving notice that exceptions have been filed, the defendant should obtain a copy from the office, and lay it before his counsel, together with the papers which served as instructions for the answer. If counsel • should be of opinion that the answer is insufficient in the points, excepted to, he will advise the defendant to submit and put in a fiirther answer, in which case notice of the submission is served on the plaintiff, within eight days after the exceptions are filed, and the defendant is allowed fourteen days fi:om the date of such submission to put in his fiirther answer: if, however, the defen- dant's counsel think that the answer is sufficient, nothing need be done by the defendant until the plaintiff has taken his next step. If eight days pass without the defendant serving a notice of submission, the plaintiff must proceed to obtain the -judgment of the Comi on the validity of the exceptions: this wiU be done by setting them down for hearing. For this purpose, a certificate is procured from the Record and Writ Clerk that the exceptions have been filed, and on this certificate 54 PROCEEDINGS AFTER ANSWER. being shown to, the Registrar, he will set down the exceptions in the paper in such a position that they will come on to be heard at an early day : this speedy hearing of exceptions, like the advancing demurrers and pleas, is ordered to prevent the abuse of the forms of the Court for the purpose of evading the putting in a full answer. Notice that the exceptions have been set down should be immediately served on the defendant. Exceptions to the first answer must be set down after the expiration of eight days, but within fourteen days from the filing thereof, unless in a case of election the plaintiff is. required to set them down in four days, in accord- ance with rule 6 of the 42nd Consolidated Order. If the exceptions are not so set down, the answer wUl at the expiration of such fourteen days be deemed sufficient. After being set down, the exceptions will in due course appear in the daUy paper of business, and be called on in turn. The papers to be furnished to the Judge and counsel at the hearing will be the bill, interrogatories, answer, and exceptions; the argument is begun by those who support the excep- tions, who are followed by those who maintain the sufiiciency of the answer : no reply is allowed. The order of the Court is either that the exceptions be overruled, and that generally with costs: or that they be allowed, in which case a time is fixed for the defendant to put in a further answer. If the exceptions be overruled, the answer will be deemed sufficient from the date of the order.* * 16th Ctons. Ord. rale 18. PEOCEEDIXGS AFTER AXSAVER. 55 The further answer must be put in within the time limited by the order allowing the exceptions : it must contain such matter as, when read in con- jimction with the first answer, will give fair answers to the interrogatories, which were the subject of the exceptions ; it will be drawn, sworn, and filed in the same manner as the first answer, and may be excepted to in like manner, if the plaintiff think it open to the same objection ; the exceptions must be set down the second time within fourteen days from the filing of the further answer ; otherwise the answer will on the expiration of such foiu-teen days be deemed sufficient ; in the notice of setting down such excep- tions, the plaintiff must specify the particular interro- gatories on which he means to insist. To prevent a defendant evading the giving the dis- covery, by putting in an endless succession of in- sufficient answers, it is the practice for the Court, after a third answer has been held insTifficient, to order the defendant to be examined on interroga- tories as to the points required, and to stand com- mitted until he shall have fiilly answered, which committal, as we shall see hereafter, would be fol- lowed by deprivation of property. If the defendant be abroad, and thereby avoid arrest, or if he please to remain in prison, and lose his property, rather than answer, the discovery cannot be obtained : the Court has given the plaintiff all the assistance in its power, and can do no more. If the exceptions are overruled at the hearing, the plaintiff must proceed with his case as best he can on the answer that has been put in. 56 proceedings after answer. Section 2. Amendment of the Bill. There are two objects with which bills are amended: either it is necessary to correct mere sHps, to bring the bill to the form in which, but for some mistake or oversight, it would origiaaUy have been drawn; or, it is necessary to introduce statements altogether new, on account of the case made by the defendant by plea or answer, or of events which have occurred since the filing of the biU. We have seen that amending the bOl on account of new matter alleged by the defendant by plea or answer is equivalent to the common law replication by way of confession and avoidance. A bill can be amended at any time before the suit has been set down on biU and answer, or notice of motion for a decree has been given, or a replication has been filed, and even after one of these stages has been attained, if circumstances be shown which render it proper ; but the most im- portant amendments are generally those introduced in consequence of the answer of the defendant, and therefore we select this place for treating of the whole subject. The amendments may be made either by striking out parts of the bill, or by the insertion of new pas- sages ; they may be made in any part of the bill, in the parties, in the body, or in the prayer, the only restriction being that they must not be such as to cause an entire change in the nature of the suit. PEOCEEDINGS AFTER ANSWER. 67 It does not seem necessary to give any example of the mode of making amendments : the bill as amended ■\vill be in all respects similar to an original bill, but wiU bear a second signature of counsel. An order of the Court for leave to amend is ne- cessary before the amendments can be made: this order .may, at any time before answer, be obtained -(vithout notice to the other side, and within four weeks after the answer or the last of the answers required to be put in is to be deemed or is held to be sufficient (if the plaintiff have not filed a replica- tion), an order to amend may be obtained of course: at any other period of the suit the order can be obtained only on notice to the defendant, unless the amendment be required for the mere purpose of rectifpng clerical errors in names, dates, or sums, in which case an order to amend may be obtained, without notice to the defendant, at any time before the hearing. Unless some special time be named in the order, the plaintiff has fourteen days from the date of the order within which he may make his amendments. If the amendments introduced into the biU in any one place exceed two foHos, or one himdred and eighty words, it is necessary to reprint the bill as amended ; otherwise it is sufficient to write the alte- rations with a pen in the margin of the original bUl, or, if there be room, to interline them on the bill. If a reprint have been made, a copy of the bill is taken, together with the order, to the Record and "Writ Clerk, by whom it is filed ; but if the alterations are in writing, they will be made by the v> 5 58 PEOCEEDINGS AFTER ANSWEE. Record and Writ Clerk in the copy originally filed, on his being fiimished with the draft alterations and the order. Copies .of the biU, as amended, are then served on the defendants, who may be interrogated, and may put in answers, in the same manner as to the original bill. In the case of defendants to the amended bill who have already answered the original biU, the interro- gatories need extend only to the amendments: but defendants introduced into the suit by amendment may in general be inteiTogated as to the whole bill. The general orders of the Court make various pro- visions with regard to the costs of amendments, with a view to prevent unnecessary expense being wan- tonly incurred, and to secure the payment of all ne- cessary expenses by the party who in justice ought to bear the same. Leave is sometimes given to amend an answer, or more commonly to file a supplemental answer, to supply defects in that originally filed; this, however, is not often done. Section 3. Hearing on Bill and Answer. When a sufficient answer has been put in to the bill, and no amendment is made, the pleadings contain all the facts on which the judgment of the Court is to be given. The mode of obtaining this judgment wiU vary, according to the extent to which the plaintiff is ready to admit the truth of the answer. And first, if he thinks that, even treating the answer as incontrovertibly true, and abandoning, PROCEEDINGS AFTER ANSWER. 59 SO much of Ms bill as is not admitted by the answer, he ■will yet be entitled to the decree he seeks, he may set down the cause to be heard on bill and answer. This course was frequently adopted under the old practice, in the ease of friendly suits, where the pleadings would be drawn with the express view of stating all the facts on which the decision was required : but now, in such cases, it is far more usual for the plaintiff to give notice of motion for a decree, and the setting down a suit on bill and answer is nearly obsolete. Section 4. Motion for a Decree. The mode most frequently adopted by the plain- tiff for obtaining the reUef which he seeks is by moving for a decree. This kind of motion must be distinguished from ordinary motions, which are in- terlocutory applications, may be made at any stage of a suit, and repeated any number of times : they are fully treated of in the Second Part. The prac- tice of moving for a decree was introduced by the Jurisdiction Ajct of 1852 : the motion cannot be made more than once, and that not untU the time for putting in an answer shall have expired, nor after a rephcation has been filed. If the plaintiff determine to move for a decree, he must give one lunar month's notice of his intention to the defendants: the form of the notice will be found in the Appendix, No. X. At the foot of the notice of motion for a decree win be seen a list of the aflSdavits intended to be 60 PROCEEDINGS AFTER AJfSTVEE. used by the plaintiff at the hearing; these must therefore be filed before the notice of motion is given, and if such motion be made after an answer has been put in, the answer will for the purposes of the motion be treated as an affidavit. If the plain- tiff wish to read, on his behalf, any portion of the answer, he should state in his notice of motion that he will read "such portions of the answer as he shall be advised," otherwise by proposing to read the whole he may perhaps be taken to have admitted the truth of the whole. The plaintiff need not give the defendant notice of his intention to read his own answer against him (though practically he generally does give such notice); but he cannot read the answer of one defendant against another defendant, unless he give him notice by including the answer in the list at the foot of the notice of motion. The defendant must file his affidavits in answer within fourteen days after service of the notice of motion, and must furnish the plaintiff with a list thereof The Judge at Chambers will, however, upon spe- cial apphcation by summons, allow the defendant further time to file his affidavits, if a fit case be shown for the indulgence. The plaintiff must file his affi- davits in reply within seven days after the expira- tion of the fourteen days, or of the further time (if any) which may have been allowed to the defendant, and these affidavits must be confined to matters strictly in reply, and a list of them must be delivered to the defendant. This period of seven days may how- ever be enlarged on special application at Chambers. PEOCEEDINGS AFTER ANS"\^-EE. 61 All persons who have made affidavits either on behalf of the plaintiff, or of the defendant, are liable to be cross-examined on them at any time within fourteen days after the expiration of the time allowed for the plaintiff to file his affidavits in reply,* or within such further time as the Court or the Judge at Chambers specially allows. This cross-examina- tion must be had before one of the examiners of the Court, or before a special examiner. The duties of these officers will be hereafter explained. In order that the motion for decree may be set down, the plaintiff must obtain from the Record and Writ Clerk a certificate that the cause is in a fit state to entitle the plaintiff to move for a decree, f This certificate is taken^to the Registrar, with a memo- randum of the time of giving the notice of motion : the motion wiU then be set down in the Cause List, wiU appear in due time in the daily paper of business, and will be called on in turn. If the state of busi- ness be such that the cause would appear in the paper before the expiration of one month from the service of the notice of motion, it will be kept back until that time has expired. The motion for decree must be set down within one week after the expiration of the time allowed to the plaintiff for filing his affidavits in reply, if the defendant has filed any affidavit : or, if the defend- ant has not filed any affidavit, within one week after the expiration of the time allowed to the defendant » Ord. Feb. 5, 1861, rule 19. t Enle i of the Order of Nov. 22, 1866, states when this certifi- cate is to be givcD. 62 PROCEEDINGS AFTER ANSWER. for filing Ms affidavits in answer. If the time allowed for either of the above purposes has been enlarged, the motion must be set. down within one week after the expiration of such enlarged time.* If the plaintiff does not set down the motion within the above time, the defendant may either set it down himself, or move to dismiss the bill with costs for want of prosecution. f If the plaintiff having set down the motion desires to accelerate the suit, and if the hearing wijl probably occupy not more than about ten minutes, the plaintiff may have the cause heard as a short cause, for ^hich purpose he must obtain from his counsel a certificate that the matter is, in his opinion, proper to be heard as a short cause : on this certificate being produced to* the Registrar, he wiU mark the cause as " short " in the cause-book. This may be done without the consent of the defendant, but notice must be given him that the cause has been so marked.^ One day in each week during the sittings of the Court is appointed for hearing short causes, and then all are disposed of which up to that time have become ready for hearing. And if the suit be a friendly one, and of a fit nature to be heard as a short cause, a decree may often be obtained in two or three days from the fihng of the biU ; for the defendant may appear as soon as the bill is filed : no interrogatories need be served : the defendant may waive his time for putting in a voluntary answer, and the month to which he is * Ord. 22nd Nov. 1866, rule i. t Ibid, rule 3. f Molesworth v. Snead, 11 W. E. 934. PROCEEDINGS AFTEE AXSWEE. 63 entitled between the notice and the motion for a decree : the cause is thus at once in a fit state for hearing, and may be set down on the same day, and marked as " short," so as to be disposed of on the next day appointed for hearing short causes. Section 5. Replication. Cases sometimes occur where the plaintiff cannot with prudence move for a decree, by which, as be- fore observed, he allows the defendant to make use of the answer at the hearing, without however pre- cluding himself from controverting the statements contained in it. In such cases the plaintiff must reply to the answer, which course is analogous to traversing it, and is technically called "joining issue," and then the defendant is compelled to prove the matters contained in it de novo, and can- not make use of what he has already sworn. He may, however, file a short affidavit, simply re-swear- ing his answer, and then use it as evidence. (See Appendix, No. IX.) A replication may be filed at . any time after all the defendants have appeared and put in their answers, or the time for answering has expired : it may be filed even after notice of motion for a decree has been given, provided no decree has been pronounced thereon. If a replica- tion be filed in a case where no answer has been required, and none has been put in, its nature differs somewhat from other cases : we have seen that if a defendant shall not have been required to answer. 64 PEOCEEDINGS AFTER ANSWER. and shall not have answered, he shall be considered as having traversed the case made by the biU : here then a replication is not a traverse of any new matter adduced by the answer, for there is none such ; but it is rather a joining issue on the traverse of the bill implied in the omission to answer. In such a case a replication is never filed, except in the event of the Court in its discretion declining to make an order on motion for decree. A plaintiff may have the cause heard in a different manner against different defendants; that is to say, he may have it heard on bill and answer against one, and may reply to another, and so on : the form of repli- cation usually expresses the manner in which the suit is to be heard against each defendant, as will, be seen by referring to the form as given in the Appendix, No. XI. This form is engrossed on paper, and filed with the Record and Writ Clerk, and notice of the filing is served on the defendants. It wlU often happen that a cause is in such a state that a replication can be filed against one defendant long before it can be filed against another; but a replication can be filed once only in each cause : in such a case, the first defendant has a right to be put out of his suspense, and can compel the plaintiff to " undertake to reply," by which undertaking the plaintiff binds himself to file a replication at the earliest opportunity. For the mode of enforcing this, we refer the reader to what is said on " motions to dismiss" in the next Part. Where the plaintiff has filed a replication, the evidence in chief on both sides (except in cases PEOCEEDIXGS AFTER ANSWER. 65 where it is taken viva voce at tlie hearing) must be closed (that is, the aifidavits must be filed) within eight weeks after issue is joined, unless the time be enlarged by special order ; but a further period of fourteen days is allowed for the cross-examination of a witness who has made an affidavit, or has been examined " ex parte" before the examiner of the Court, or a special examiner. More will be said on this head in the Chapter on Evidence. We have seen that, on motion for decree, the de- fendant has in his hands the whole of the plaintiff's evidence before he is required to adduce his own: this gives an opportunity for a knavish defendant to shape his case in such a manner as to meet that which he knows to have been made by the plaintiff: but after replication, neither party need file his affidavits until the last day of the eight weeks, and thus no opportunity is given for such a practice as that above suggested : this is a reason which may sometimes makie it a more eligible course to reply than to move for a decree. Moreover, if a replica- tion be filed, it will be found that a defendant cannot avail himself of his own oath in support of his case, without exposing himself to cross-examination in Court. When the time for taking the evidence has ex- pired, or earlier if the defendant consent, the cause may be set down for hearing by the plaintiff: this will be done by obtaining from the Record and Writ Clerk a certificate that the cause is in a fit state to be set down for hearing, which certificate is taken to the Eegistrar, who will set down the cause. 66 PROCEEDINGS AFTER ANSWER. It is not sufficient to serve on the defendant notice that the cause has been set down : a writ called a subpoena to hear judgment must be issued and served. The form of this writ is given in the Appendix, No. XII. When the cause is set down, the Registrar gives a note of the day on which the subpoena is to be return- able, which is usually one month after the day of setting down : as the interval between the teste or date and the return must be one month, it is com- monly necessary to issue the subpoena on the day, of setting down. A form of the writ is obtained at the law-stationer's and fiUed up : it is then taken ■ to the Clerk of Records and Writs, together with the Regis- trar's note, and with a praecipe or memorandum of what it is that the Clerk is required to do : the writ is sealed, and the note and prsecipe filed. Copies are then made of the writ, and it is served upon each defendant by delivering one of the copies, at the same time showing the original. After having been set down, the cause vnU come on in its regular order, as before mentioned with respect to a motion for a decree. In a proper case, a cause may after replication be heard as a short cause. ( 67 CHAPTEK V. EVIDENCE. This chapter will contain what it seems Tiecessary to say on the subject of the evidence to he used in dif- ferent proceedings in Chancery. On most applica- tions to the Com-t it is necessary to produce evi- dence of the facts on which the application is based, and we shall in the first place point out the mode of determining what facts in each case it is necessary to prove : having done this, we shall explain the two modes in which evidence can be taken, orally or by affidavit. This chapter wiU therefore be di- vided into three sections. Section 1.- Evidence of the Pleadings. The use of the pleadings in Equity as well as at Law is to bind down the parties to certain definite statements of the fiicts on which they rest their case, and of the parts of their adversary's case which they dispute. We have seen how each party has an op- portunity afibrded him of putting on the record a statement of all the facts which he considers mate- rial for the purpose of answering the case made by 68 EVIDENCE, his adversary, and also of recording his denial of those statements of his adversary the truth of which he does not choose to admit: hence there is no hard- ship in a rule which says that no one shall be allowed to controvert at the hearing any facts which he has himself stated on the record, nor any facts put on the record by the adversary of which he has chosen to admit the truth. When expressed in technical language, this rule is identical with saying that at the hearing each party may make use of his adver- sary's pleadings, and of so much of his own as his adversary has admitted. Evidence must be given of all facts not stated or admitted by the passages which this rule allows to be" read by the party to whose case they are essential, and to contradict such of the statements of the opposite party as have not been admitted. It will be remembered that if a defendant have not been required to answer and have not answered, he will be considered to have traversed the case made by the bill. We will now apply this principle to the three several modes in which causes are brought before the Court with a view to a decree. And fibrst, of hear- ing on bill and answer ; here the plaintiff may read against each defendant any part of his answer, for it is the adversary's case, and he may also read such parts of his bill as are admitted by the answer; the rest of the biU, that is, all parts which the de- fendant by answer either denies, or, what is equiva- lent, professes ignorance upon, cannot be proved at all : for the form of proceeding by biU and answer does not admit of the production of evidence. Each EVIDENCE. 69 defendant in like manner may read the ivliole of the bill, for it is his adversary's case, and also the whole of his answer, for it is not contradicted by the plain- tiff. It is clear therefore that the proceeding on bill and answer cannot be often used with advantage against a hostile defendants On a motion for a decree, the state of the plead- ings is the same as on a hearing on bill and answer, and the passages which may be read are therefore the same. But on such a motion evidence may be used : that adduced against each defendant by the plaintiff will therefore extend to prove such parts of the bin as are not admitted by the answer of that defendant, and also to contradict the statements con- tained in the answer : that adduced by each defen- dant will be in aid of the answer (if any), in substan- tiating the statements contained in it, and generally in meeting or contradicting the statements in the plaintiff's affidavits. By filing a replication against any defendant, the plaintiff denies the truth of the answer of that de- fendant, and therefore precludes him fi:om reading it. Hence, after replication the plaintiff can read the answer, for it is his adversary's case : and he can also read so much of the bill as is admitted by the answer : the evidence, therefore, which he must ad- duce is the same as on motion for a decree. But the defendant can read nothing but the plaintiff's bill, and is therefore obliged not only to disprove such parts of this as he has not admitted, but also to prove his whole answer by evidence. When the statements 70 EVIDENCE. of the answer relate wholly to the defendant's own acts, or defaults, he is in a position to swear abso- lutely to the truth of the answer, and not merely in the limited form in which he has abeady sworn to it (see the form given in the Appendix, No. VIII.): in such a case the defendant may even after replication obtain an order allowing him to read the answer as an affidavit ; or he may make a short affidavit refer- ring to the answer, and verifying the statements of it : this course, however, exposes him to be cross- examined by the plaintiff, and such an order as that just alluded to will not generally be granted unless the defendant submit to the same liability. There is one exception to the rule that a defendant is not allowed to read his answer after replication; and this is, when the question is discussed as to how the costs of the suit are to be borne. In this ques- tion there may be, and often is, an opposition of interests between two defendants ; and each defen- dant is at liberty to read his answer, not only as against the plaintiff, but also against his co-defen- dants. If the plaintiff desires to read the answer of one defendant against another, he must give notice to the latter. It wiU be understood that no party is obliged to read any part of his own or his adversary's plead- ings : subject to the rules above given, he may read as much or as little as he pleases : he wiU not, how- ever, be allowed to read part only of a passage, but will be obhged to give to the adversary the benefit of any explanation or discharge which may be in- EVIDENCE. 7 1 corporated in the same passage with some admis- sion ; if he omit to do so, the adversary may himself read such explanation or discharge. The rules which have been given in this section are generally spoken of as the evidence of the plead- ings ; the pleadings, however, are not used strictly as evidence, but rather as admissions limiting the points on which evidence is required. Section 2. On Oral Evidence. Afler replication has been filed in a cause, the evidence may, if an order of the Court be obtained for the purpose, be taken viva voce at the hearing, or the parties may agree to have it tak^n before an examiner orally. The rules on this subject are con- tained in the important order of the Court made on the 5th of February, 1861, in pursuance of a statute (23 & 24 Vict. c. 128) passed for the express pur- pose of enabling the Lord Chancellor and the Chan- cery Judges to make general rules and orders, with a view of caixying into effect the recommendations of the Chancery Evidence Commission appointed in 1859. By this order (rule 3) the plaintiff, or any defendant, may, within fourteen days after issue has been joined, apply to the judge in chambers for an order that the evidence in chief as to any facts or issues may be taken viva voce at the hearing of the cause, and if the order be made, the examination in chief, cross-examination, and re-examination will be had in open Court accordingly. The evidence may. 72 EVIDE>X'E. however, be taken as heretofore before one of the examiners of the Court, or a special examiner, if the parties to the suit shall so agree, and shall signify such agreement by writing, signed by them or their respective solicitors, and filed at the Kecord and Writ Clerks' Office, or if owing to the age, infirmity, or absence fi:om the jurisdiction, of any witness, or for any other sufficient cause, the judge thinks fit to direct the evidence to be so taken.* It should be remembered that these rules as to viva voce evidence at the hearing do not apply to motions for a decree ; the evidence in chief on these motions being taken by affidavit, and the cross-ex- amination being had-before an examiner. The practice as to taking evidence before an Ex- aminer is as follows : — The party wishing to procure the testimony of any witnesses takes a copy of the biU and answers to the Office of the Examiners in B^lls Yard. These officers are two in number, and divide the various suits between them, according to the first letter of the surname of the first plaintiff, in the same manner as is done by the Clerks of Record and "Writs. The Clerk of the proper Examiner will, in return for the bni and answers, give an appointment, and no- tice must be given to the witnesses requesting their attendance at the appointed time. Sometimes the state of business in the office is such that it is im- possible to obtain an appointment, except for a day so distant as seriously to prejudice the case of one of • Ori Feb. 5, 1861, rnles 10, 11. EVIDENCE. 73 the parties ; or the witnesses may, from infirmity or other circumstances, be unable to attend in London : in such cases some private person, usually a barrister, is appointed by the Court as Special Examiner to take the depositions, and he will give the appoint- ment. If there be reason to suspect that any witness will neglect to attend at the time appointed for the examination in the notice sent to him, a writ of subpoena ad testificandum must be served upon him; the form of this writ will be found in the Appendix, Xo. XIIL A blank writ is procured at the law stationers, filled up, and taken with a pracipe to the Record and Writ Clerks' Office, where it is sealed and the pracipe filed : it is tlien served on the witness in the usual manner, and at the same time the reasonable travelling expenses of the witness are tendered to him. If, after this, he neglect to attend or to account satisfectorily for his absence, he will be hable to be committed for contempt. After the appointment has been obtained and the attendance of the witnesses secured, notice of the time of taking the evidence is served on the other parties. At the appointed time, such " of the parties as please attend before the Examiner, by their solicitors or, in important cases, by their counsel : the witness is then sworn and examined, cross-examined and re- examined in the same manner as upon a Nisi Prius trial. The answers are taken down in writing by the Examiner himself, in the form of a continuous L. E 74 EVIDENCE. narrative in the first person of the deponent ; but any particular question and answer may, in the dis- cretion of the Examiner, be taken down verbatim. If any question be objected to by the parties, or by the witness, the question and ground of objection, with the Examiner's opinion thereon, are stated in the depositions, and may be taken before the Court for its opinion on the validity of the objection. When the examination is concluded, the depo- sitions are read over to the witness by the Examiner, and signed by the witness, and the fact of such reading and signature is certified by the Examiner, who then takes the depositions or transmits them to the Office of the Record and Writ Clerks, where they are filed. Any party is then able to procure copies of any part of the depositions of his own or his adversary's witnesses. This is an important alteration on the practice in use up to the year 1852 : under it, the depositions were taken privately by Commissioners appointed for the purpose, upon written interrogatories, drawn by the parties for the examination and cross-examination of the witnesses : the depositions so taken were transmitted secretly to the office, and it was 'not allowed to procure copies of them until the time of taking evidence had expired, or, as it was expressed, publication had passed. It is now ordered (by Rule 6 of the Orders of the 5th February, 1861) that in the absence of any agreement by the parties, or any order of the Court, to the contrary, aU examinations taken by the Ex- aminers of the Court, or by any Special Examiner, to be used at the hearing of a cause in which issue EVIDENCE. 75 is joined, shall be taken " ex parte" in the presence only of the party producing the witness, and every such examination shall at the hearing be treated as an affi4avit. This order is most important, as it de- stroys the pubHcity of this mode of taking oral evi- dence. The law as to the privileges and compe- tency of witnesses, and as to the mode in which particular facts or documents are to be proved, is in general the same in Equity as at Law. Witnesses out of the jurisdiction of the Court are usually examined before a Special Examiner, but may be examined before Commissioners appointed for the purpose by order obtained on special motion or summons, supported by affidavit.* In certain cases the Court of Chancery will allow evidence to be taken out of the regular course, in order to prevent the evidence being lost by the death or absence of the witness. This is called taking evidence " de bene esse" and is looked upon as a temporary and conditional examination, to be 'used only in case the witness cannot afterwards be ex- amined in the suit in the regular way.f The prin- cipal cases in which evidence is allowed to be thus taken are where the witness is upwards of seventy years old or is dangerously iE, or is about to go abroad, or is the only person who can prove a fact of great importance. In the latter case the applica- tion for leave to take the examination must be made by motion, of which notice must be given to the * For an acconnt of the practice regulating Commissions, see Daniell's Chanc. Prac, 4th edition, p. 848. t See Eorsyth v. EUice, 2 Mac. & Gor. 209. E 2 7 6 EVIDENCE. opposite party in the suit, but in the other cases the application may be made ex parte either by motion in Court or by a petition of course at the Eolls ; in all cases,- however, the application must be accom- panied with an affidavit showing the grounds for it, and that the proposed witness is a material one. The examination is taken before one of the Ex- aminers of the Court, or before a Special Examiner, and the depositions are filed at the office of the Clerk of Eecords and Writs, but they cannot be used without an order of the Court, which it is in the dis- cretion of the Court to grant or re&se.* A statute passed in 1858 has introduced trial by jury into the Courts of Chancery, and otherwise as- similated the hearing of causes -in those Courts to trials in Courts of Common Law; for by 21 & 22 Vict. c. 27, it is provided that the Court of Chancery may direct any question of fact arising ia any suit to be tried by a Special or Common Jury, or before the Court itself without a Jury, the witnesses in the latter case being examined in open Court, and the Judge delivering the verdict. And now the " Chan- cery Eegulation Act,. 1862" (25 & 26 Vict. c. 42), has made the trial in the Court of Chancery of ques- tions of law or fact arising in suits the rule, and the Court is bound to try them (with or without a jury) unless it be satisfied that the administration of justice in the particular suit will be more promoted by a trial at Common Law.f * See Forsyth v. Bllice, 2 Mac. & Gor. 209. t Yonng V. Femie, 1 De Gex, Jones & Smith, 355; Baylis r. Watklns, 7 Law Times, N. S. 843 ; Bgmont v. Darell,' 1 Hemming & Miller, 563; Re Hooper, 11 "Weekly Reporter, 130. evidence. 77 Section 3. Affidavits. Affidavits are used for the purpose of proving or disproving the statements on which any application to the Court is grounded in every case, except at the hearing of a cause in which a replication has been filed, and the evidence has been taken oraUy ; and even when the evidence has been so taken, yet leave may in a proper case be obtained from the Court to use affidavits at the hearing to prove particular facts and circumstances. It wiU be remembered that every examination taken ex parte before an Exa- miner, wUl at the hearing be treated as an affidavit. "We thus see that affidavits occupy a principal place in a Chancery suit ; they may be described as written statements on oath; it follows from their nature that they must be made voluntarily, and that no means exist to compel an unwilling witness to make an affidavit. Before the year 1852, this sometimes occasioned a defeat of justice ; for a fact essential to the plaintiff's case might be only in the knowledge of some person, who from hostility or from a wish to avoid the appearance of partisanship, reftised to make an affidavit, and who yet had not such an interest in the matter as would enable the plaintiff to make him a party to a suit, and compel him to put in an answer : in such a case, the plain- tiff had no means of proving the fact on any inter- locutory application, as for an injunction, and thus a long delay occurred' before the plaintiff could have that assistance of the Court to which he was en- 78 EVIDENCE. titled, and of which the utUity in a great degree depended on its being obtained with speed. To remedj this, the Court is now empowered, on special application, to allow use to be made on all occasions of evidence taken orally ; and persons are compellable, in such a case, to attend on a subpoena, at the Examiner's Office, and give evidence, in the same manner as with a view to the hearing of the cause. A solicitor who wishes to obtain an affidavit firom any person first ascertains what the deponent is pre- pared to swear to ; he then puts this into a regular shape, and, if necessary, the draft is settled by coun- sel : the solicitor then ought to go through it with the deponent, to make sure that the contents are such as he can swear to. The deponent afterwards attends before one of the Commissioners to take Oaths in Chancery (who should not be the solicitor , in the cause), and, having signed the affidavit, swears that the contents are true: the Commis- sioner then signs a jurat, which is appended. The practice with regard to swearing affidavits abroad is the same with what has been already described with regard to answers. The affidavit when sworn is taken to the proper Clerk of Records and "Writs, who satisfies himself of the genuineness of the signature to its jurat, and files it : an office copy is then made, on the applica- tion of the party who filed it, which office copy alone is the document on which the Court acts, ex- cept in certain m-gent cases during the long vaca- tion, when the offices are not open: in these the EVIDENCE. 79 Court will act on the original affidavit. When it is wished to make use of an affidavit before an office copy- can be made, a plain copy may be presented to the clerk, and, if satisfied of its accuracy, he will mark it as an office copy. Office copies of written affidavits will now, however, seldom be used except on interlocutory applications, such as motions for an injunction, or the like ; for by the General Orders of May, 1862, it is provided that the evidence in suits shall be printed under the direction of the Clerks of Records and Writs; and application to have the evidence printed may be made by any party to the suit (whether issue be joined or notice of motion for a decree be served) as to affidavits, after the times respectively allowed for filing such affidavits, and as to depoations taken on the oral cross-examination of the witnesses who have made affidavits, after such depositions shaJl have been filed. Every party who files an affidavit or causes depositions to be taken, is to take fi-om the Clerks of Records and Writs a printed copy of every affidavit filed by him, and of all such depositions, for which he is to pay twopence per foho. This wiU be the office copy. Any person who has made an affidavit is liable to be cross-examined and re-examined orally, in the manner described in a previous section. There are certain affidavits, with which every party ought to be provided at every hearing before the Court, but which do not tend to throw light on any of the matters at issue, and wiU be of no use unless the other side make default. For if the party who wishes to put the Court in motion be 80 EVIDENCE. dresent when the case is called on, but the other party be absent, no order can be made unless it be shown that the moving party has done what the laws of the Court required him to do, in order to secure the attendance of the other party : if this be done, then the absent party may fairly be presumed to be content to submit to any order to which the Court may think the mover entitled, after hearing his own statement of his case. The mover should therefore go into Court prepared with an affidavit to prove the service on the other parties of the notice of motion, subpoena to hear judgment, or other document which the nature of the proceeding may require. And the other party should likewise be prepared to prove that he has been served with the same document : for if he can do so, he may claim the costs of his attendance from the defaulting mover who has required it. To enable the person who effected the service of the document to make this affidavit, it is usual and proper, at the time of the service, to make a memorandum of the fact and circumstances; indeed, .as we have said, by the rules of the Courts of Common Law, this is in some cases obligatory. When it is wished to prove documents by affi- davit, it is done by showing the original to the de- ponent at the time of swearing, which original is then, for the sake of identification, marked with some letter of the alphabet, and a memorandum is indorsed on it and signed by the person before whom the oath is taken. This original is thence- forth called an exhibit, from the Latin exhibere, " to EVIDENCE, 81 produce or show," because the document is produced and shown to the deponent. Every statement in an affidavit must, show the means of knowledge of the deponent, and at the foot of the affidavit must be written a memorandum stating by whom the same is filed. Such memorandum shall be in the following form : — " This affidavit is filed on the part and behalf of the plaintiffs" or " of the defendants M. or N." or as near such form as possible.* In practice the means of knowledge of the deponent are shown by the concluding paragraph of the affidavit. The example given in the Appendix, No. XIV., win show the form of affidavits, and the manner of proving exhibits. • See the 18th and 23rd Eules of the Orders of 5th Feb. 1861. E 5 ( 82 ) CHAPTER VL THE HEARING AND DECKEE. This chapter will contain two sections": in the first, the proceedings on the Hearing of a Cause will be described ; the second will treat of the form, nature, and consequences of the Decree. Section 1. The Heaping. The cause having been set down will appear in the paper, and in its turn be called on for hearing. The plaintiff should furnish, for the use of the Judge, copies of all the pleadings and evidence in the cause, and the brief given to his counsel should contain the same documents. The brief fiimished to the counsel for each defendant consists merely of so much of the pleadings and evidence as can be read by or against that particular defendant: that is, of the biU and replication, if any, and the answer of that defendant, together with the plaintiff's evidence, and that ad- duced by that defendant. No defendant has any concern with the answers or evidence of his co-de- fendants, unless the plaintiff has given him notice of his intention to read the answer of a co-defendant against him. THE HEARING AND DECREE. 83 Two counsel are usually engaged by each party, one of whom is commonly a Queen's counsel : but both the number and the standing are entirely optional, and in cases of more than ordinary length or importance, the employment of three, or even of four, can be justified. It will sometimes happen that two conflicting interests in the subject of the suit may be centered in one individual, — as, if he claim one in his private character, and the other in his representative capacity ; in such a case, different counsel may be employed to support each interest. For instance, if a doubt arise between B. and C. as to the construction of A.'s wUl, and B. die, leaving C. his executor: in a suit instituted to settle the true construction, it would be the duty of C, the executor, to instruct counsel to oppose the view which is upheld by the counsel for C. the indivi- dual. The same counsel may appear for two or more parties, not only when they are jointly inte- rested, but even when their interests are entirely distinct, so long as there is not any conflict between them. The argument is opened by the plaintiff, who is followed by the defendants in the order in which they appear on the record, unless any of them happen to be in the same interest with the plaintiff, in which case they immediately foUow him : when aU the de- fendants have been heard, the plaintiff has the right to reply. If the Court think that the plaintiff has not in his opening made any prima, facie case, the appKcation is dismissed without hearing the defen- ' dants at all ; and similarly, if the arguments of the 84 THE HEARING AND DECREE. defendants have not raised any doubt in the mind of the Court, no reply is called for. At the con- clusion of the argument, the Court pronounces its opinion, of which the heads are taken down by the registrar whose turn it is to attend the Court, and also by the various counsel on the backs of their briefs: the heads so taken down form the original material firom which the decree is afterwards framed. It often happens 'that there can be no doubt as to the decree to which the plaintiff is entitled ; in such case, it may be arranged beforehand by the parties, after which the cause may be marked as short, and counsel merely appear and give their consent on behalf of their chents. If the case be such that it is not expedient to allow the facts to become public, it will be heard by the Judge in his private room, to which only the sohcitors and counsel engaged will be admitted : in this case,, the judgment will sometimes be given in pubhe, especially when it involves any important question of law, and does not turn upon the facts as to which secrecy is desirable. Section 2. The Decree, A Beeree, as distinguished from an Order, is the sentence of the Court dehvered on the hearing of the cause, and not on any interlocutory application, and thus it corresponds to a Judgment at Law, as distinguished from a Rule : but as the greater part of what we shall here say concerning decrees will ' THE HEARING AND DECREE. 85 apply -witli little or no alteration to ordei"S, we shall include these latter under the name of decrees. When a bill is dismissed at the hearing, this is not done by decree, but by an order of dismissal : men- tion is sometimes made of a decretal order, which seems to be an order made on motion or otherwise not at the regular hearing of a cause, and yet not of an interlocutory naturej but finally disposing of the cause, so far as a decree could then have disposed of it : such would seem to be the orders made on motion for decree, and also orders directing preli- minary inquiries in certain cases, where the Court will not consider the main question in the suit, until it knows, by a certificate of a chief clerk, what is the state of the facts. These distinctions are of no practical importance, and we shaU. not further advert to them, but shall apply the word " decree " to every formal expression of the judicial will of the Court. On turning to the Appendix, the reader wiU find some specimens of decrees and orders. See No. XV. We have seen that the registrar who attends in Court each day takes down in his book the heads of the decree pronounced in each cause : the counsel also take down the same, according to their under- standing of it. Immediately after the hearing, the plaintiff or other party who may be moving in the proceeding takes to the Registrar's Office his senior counsel's brief, with its indorsement, and also all the papers which were or might have been used as evidence at the hearing: the party who takes this proceeding is said to have the carriage of the decree. 86 THE HEARING AND DECREE. and it is sometimes a matter on wHcli the Court gives a special direction, that the carriage be given to some party other than the one to whom it falls naturally. The registrar compares his note of the decree with that indorsed on the brief, and if he finds them agree, he considers whether aU the necessary evi- dence has been left with him, and if not, he pro- ceeds no further until it is left. Then he draws up the minutes of the decree, which consist of the sub- stance of the decree itself, in a shape far more formal than the notes on the briefs, but wanting the commencement which is found in the final form of the decree : this difference will be best understood by comparing the full form of one decree with the minutes of others, as given in the Appendix. It will be readily understood that the minutes contain all the substance of the decree, which can afterwards be firamed fi-om them by an operation little more than mechanical : the names of the par- ties appearing, and of those against whom an order was taken on affidavit of service, as well as a note of the evidence to be entered on the decree, though forming no part of the minutes, are generally pre- fixed to them : copies of the minutes thus prepared are delivered out from the Registrar's Office to all parties that apply, and a day is fixed for settling them. On the day appointed all parties that please attend by their solicitors before the registrar, at the office, and he proceeds to settle the minutes ; if any question arise as to the proper form, the cause is put in the paper, " to be spoken to on the minutes," THE HEAEING ANB DECREE. 87 and the Court thereupon explains what was the exact decree pronounced. Thus, finally the minutes are settled; frequently the parties agree among themselves as to the mi- nutes, which are sometimes drawn by counsel, and these minutes are then at once adopted by the re- gistrar. The decree is drawn up from the minutes by a clerk in the office, and is perused by the re- gistrar in the presence of such of the parties as please to attend: if found correct, he passes the decree, by placing his initials in the margin at the end. When passed, the decree is left with a clerk in the office for entry, and is by him entered or copied in the registrar's book. This book contains an authentic copy of every decree made by the Court ; and since, up to the year 1833, every decree was prefaced by a recital of the pleadings, the whole formed a report of the cause, to which appeal is often made when a doubt arises on the accuracy of the report cited from a printed volume. Under the present practice, the entry shows nothing but what order was made, and on what evidence it was founded, so that its usefulness as a report is much less than formerly; stiU, however, the registrar's book is often referred to on points of form. At the beginning of every Michaelmas Term, two books are provided for the entry of the decrees to be pronounced during the year then commencing, — one to contain those to be pronounced in causes where the first letter of the surname of the first plaintiff is found in the earlier half of the alphabet ; 88 THE HEARING AlfD DECREE. and the other, to contain those belonging to the latter half. Anj particular decree is quoted by the foKo of the book in which it is found : thus an order made in the case of Powell v. Matthews, is foiind in Eeg. Lib. B, 1854, f. 1423, or on the 1423rd folio of the second volume of the annual book commencing in November, 1854 : probably this particular order was pronounced in 1855, and possibly in the October of that year. On consulting the forms of decrees and orders re- ferred to, it will be found that they are divisible into four parts, of which one is sometimes absent : these are the title of the cause, and the date ; the proceed- ing in which the decree is made, and the evidence on which it is founded ; the declarations of right, if any, and the ordering part. Of these in order. The title, as given in the heading of the decree, contains not only the names of the parties them- selves, but also of the guardians of any defendants who are infants or idiots or lunatics. The date is that of the day on which judgment was actually de- livered, which is occasionally not tiU some days after the hearing, time having been taken by the Judge to consider what decree should be made. After the date is stated the proceeding, whether the hearing, or motion or petition, or otherwise, on which the decree is made; and also whether it be made in the presence of all parties, or in the absence of some, and whether the absent parties have been served with the proper notice or otherwise : then is entered the evidence on which the decree is founded, which should include all that each party might have THE HEARING AND DECREE. 89 read, provided he do not wish to exclude it: for instance, when a bill is dimissed without hearing the defendants, they have had no opportunity of reading any evidence, but yet they are entitled, if they please, to have entered on the decree what they might have read; and this is important with reference to the prospect of an appeal ; for if an appeal be brought and dismissed, it will generally be dismissed with costs to be paid by the appellant ; if, however, on the appeal, the respondent use evi- dence which was not used on the hearing below, each party wiU often be left to bear his own costs : and the Court of Appeal cannot look to anything but the decree to ascertain what was used on the former occasion. The next part of a decree, which, as we have said, does not by any means always occur, is the declara- tion of right : it will be readily seen that thig is equi- valent to the finding of a jury on an issue between the parties, or of the Court on a demurrer at law, while the ordering part which foUows is analogous to the judgment at law which foUows on the verdict and assessment of damages. A declaration of right contained in a decree operates as an estoppel be- tween the parties, in the same manner as a judg- ment at law : and also, the Court would interfere by injunction to restrain any proceedings by one of the parties inconsistent with the] declaration. For in- stance, if a suit be instituted to carry out the trusts of a wiU of real estate, and the heir be made a party, he has a right to an issue to try the validity of the will : if he waive this right, or if the issue be decided 90 THE HEARING AND DECREE. in favour of the will, a decree will be made dedaring tliat the win is well proved : by this declaration the heir is estopped from denying the validity of the win, and yet, if he commence an ejectment, the de- visee would have no opportunity at law of pleading the estoppel ; hence it would be necessary to have recourse to Chancery for an injunction, unless the devisee were prepared to risk the verdict of a second jury, on such evidence, including the decree, as he could produce of the execution of the will and the sanity of the testator. The most frequently occurring species of declara- tion of right, which corresponds to a judgment on a demurrer at law, is that by which' the Court de- clares what is the true construction of written instru- ments, and particularly of wills: such declarations are exactly equivalent to the answers given to the questions, appended to a Special Case, as will be seen in our Third Part. After the declarations of right, if any, comes the ordering part, which is itself occaaonaUy wanting, when the decree is said to be merely declaratory : this part directs the doing of such acts as are neces- sary to give the plaintiff such relief as he is entitied to have on that particular occasion. These acts are sometimes the payment of money, or the execution of deeds, or the like : but more frequentiy, on the hearing the cause is referred to the Judges' Cham- bers, to take accounts, make inquiries, or the like, in order to ascertain the facts of the case. The nature of the proceedings thus directed by decrees will be discussed more fiJly in the First and Second Chap- ters of our next Part. THE HEAEING AND DECREE. 91 When a decree has been passed and entered, it is looked upon as sufi&ciently perfect to be the ground of further proceedings, either in pursuance of it, or for enforcing the doing of the acts ordered ; and it cannot be altered, except as to obvious errors, with- out a regular rehearing ; obvious errors can still be corrected on motion or petition. But tbere are some purposes for which it is necessary to go through a fiirther ceremony, called the Enrolment of the Decree. This we must proceed to describe. Any decree or order of the Court may be enrolled, which is not in its nature merely interlocutory : if it be in its nature final, it may be enrolled, although made not on the hearing of the cause, but on motion or petition : thus, a decree made on the hearing of a foreclosure suit, which is not absolute until confirmed by a fiirther order, is not a subject for enrolment ; while an order dismissing a biU for want of prosecu- tion, though made on motion, is yet sufficiently final in its nature to be enrolled. The party wishing to enrol a decree makes a copy of it, preceded by a statement of the prayer of the bOl, and some other details ; this copy is called the Docquet, and is lefl; with the Eecord and Writ Clerk, together with the original decree : he compares them, and if he find the docket correct, he procures the signature of the Lord Chancellor to it, and then copies the docquet and signature on parchment rolls : the docket and engrossment are preserved in the Public Record Office.* In E«lls causes, the signa- • See Order of 7th May, 1866. 92 THE HEARING AND DECREE. ture of the Master must be procured to the docquet before it is left at the office. The enrolment must be eflfected within six months from the date of the decree : after that time, the leave of the Court is necessary, which will be granted unless any party can show a reason to the contrary. The enrolment of a decree has two distinct effects : it cannot when enrolled be varied by the simple and cheap process of rehearing, but it is necessary to have recourse to the House of Lords, or to file a bill of review : in fact, the House of Lords will not en- tertain an appeal from a decree which has not been signed and enrolled. Moreover, if a second bill be brought for the matter disposed of by the decree, this decree may after enrolment be pleaded in bar of the second suit, whereas it cannot be so pleaded while yet unenrolled. The effect of enrolment on the right of appeal makes it important that some means should be pro- vided of preventing parties enrolling their decree, as soon as they learn that a rehearing is intended before the Court of Appeal: for this purpose, any party has a right to lodge in the Record and Writ Office a caveat, or notice to the officer not to enrol the decree. After this has been lodged, notice will be given of any application to enrol the decree affected: the caveat must then be " prosecuted with effect" within twenty-eight days from the leaving the docquet at the office. The presentation of a petition of appeal will not of itself stop the enrolment : the order for setting down the appeal must be actually served before the THE HEARING AND DECREE. 93 docquet is left, or within twenty-eight days after, in case a caveat have been lodged. The Lord Chancellor has jurisdiction to vacate any enrolment, which he will exercise when the en- rolment appears to have been procured by any kind of irregularity, or with circumstances of surprise or bad faith : thus, if one party were about to lodge a caveat, and the other told him that he need not go to the expense, for they would not enrol, and never- theless the latter did proceed to enrol the decree, no doubt the enrolment would be vacated. The expense of enrolment is considerable, and therefore is never resorted to without some special reason : hence a very small proportion of the whole number of decrees pronoupced will be found in the Enrolment OflSce. Every decree ordering some act to be done must mention how long a time from service of the decree the party has for doing it. To enforce the decree, a copy is made with an indorsement in a fixed form (see the Appendix, No. XVI.) mentioning the con- sequences of disobedience : the decree is then served on each party ordered to act, by showing the ori- ginal and delivering to him a copy. For the con- sequences of non-compliance with the direction of the decree, the reader is referred to the Chapter on Contempt. ( 94 ) PAET II. COURSE OF A SUIT AFTER DECREE AND INCIDENTAL PROCEEDINGS. In the First Part we have traced the regular steps by which a defendant in a suit is compelled to give the discovery required of him, and by which a decree is obtained against him. In some cases this decree may put a complete end to the suit, as when a bill is dismissed without costs, or when a merely decla- ratory decree has been sought : but this can rarely happen, for there will generally be some costs to be paid by one party to another, even if nothing more remain to be done : and in a large proportion of cases, ihe event of the various proceedings taken under the decree is of the utmost Importance with reference to the substantial success of the suit. We shall in this part treat briefly of the ordinary course of some of the more usual of these proceedings, which, as we have seen, are very various in their nature. Moreover, we have hitherto confined ourselves to the regular course of the suit, that is, the simplest and most direct by which it is conceivable that the object of the suit could be obtained. But it is pro- COURSE OF A SUIT AFTEE DECEEE. 95 bable that in the great majority of suits this regular course is not taken without the intermixture of cer- tain incidental proceedings, having the object, either of facilitating this regular course, where it is impeded in any particular case ; or of obtaining, where the rules of the Court allow it, some part of the relief at an earlier period than it could otherwise be obtained, or of correcting some error supposed to have been committed by the Court in its decision on any ques- tion brought before it ; or lastly, of obtaining pay- ment by the proper parties of the costs of the suit. The principal of these incidental proceedings will be discussed in this Part, which wiU. be divided into ten Chapters, as follows: — (1) Proceedings under the Decree ; (2) Proceedings in Chambers ; (3) Fur- ther Consideration ; (4) Supplement and Revivor ; (5) Motions ; (6) Petitions ; (7) Contempt; (8) Par- ticular Persons; (9) Appeal; (10) Costs. ( 96 ) CHAPTER I. PROCEEDINGS UNDER THE DECREE. We have seen how various are the directions con- tained in decrees, and that they generally include references to Chambers : these will be treated of in the next chapter, and at present we shall confine ourselves to some less usual but still very common proceedings. Of these, the principal are paying money or transferring stock into or out of Court, and sending issues to be tried in a Common Law Court : and first, of the payment of money into Court. Whenever the plaintiff can read from the defend- ant's answer a clear admission that he holds a defi- nite stim of money upon trust, the plaintiff is entitled to have this money brought into Court, and can even compel its payment by the summary proceeding of motion, as soon as the answer has been filed, without waiting till a decree has been obtained ; and if at the hearing the plaintiff can prove the existence of the trust and the amount of the trust fund, a similar order wiU be contained in the decree : and frequently an order is made for payment of the sum to which a trust ftind shall be ascertained to amount on taking the accounts. The Court has jurisdiction also to make an order of this nature on the plaintiff; and in some cases, as that of an interpleader suit. PROCEEDINGS UNDEE THE DECREE. 97 the bill regularly contains a submission on the part of the plaintiff to pay in the sum which is claimed from him by the defendants. The same remarks apply to the transfer of stock or securities into Court. The principle upon which the Court acts is to secure all trust moneys from any possible danger of misapphcation, as far as possible without risk of interfering with any rights of persons in possession, and against whom no charges of misconduct are brought. The payment or transfer into Court does not in any degree afect the rights of the persons beneficially entitled to the fiind, which is afterwards distributed among them according to their respective interests. Until the year 1872 this payment or transfer was carried out through the medium of an officer called the Accountant-General of the Court of Chancery ; but in that year an Act* was passed by which the office of Accountant-General was abolished, and his duties transferred to the Paymaster-General for the time being, and all money and securities which before the Act were standing in the name of the Accountant-General are by the Act Tested in the Paymaster-General, and the Consolidated Fund is thenceforth liable to make good to the suitors of the Court of Chancery all money and securities which by the Act became vested in the Paymaster- General. The Act contains an entirely novel pro- vision for placing on deposit money paid into Court, • 35 & 36 Viet. e. 44. 98 PROCEEDINGS UNDER THE DECREE. and allowing interest thereon, by enacting (sect. 14) that, " save as otherwise provided by any rule made under this Act, aU money in Court paid in either before or after the commencement of this Act shall, subject to the provisions of this Act, and of any rule made thereunder, be placed on deposit, and in the case of money in Court paid in after the com- mencement of this Act without any application or request for that purpose, and when so placed on deposit shall bear interest at the rate of two per cent, per annum together with any income tax chargeable thereon." This provision for payment of interest will not interfere with the previous practice, according to which orders are frequently made for investment in stock or other securities of money paid into Court, nor will it interfere with the investment (without order) of moneys paid into Court under the Legacy Duty Act, or the Trustee Relief Act. The new department created in place of the Ac- countant-General's Office is called the Chancery Pay Office, and its practice and procedure, and the ge- neral working of the new Act, are regulated by some elaborate rules and orders, which were issued soon after the passing of the Act.* Every order for the payment of money into Court should mention the day on or before which the pay- ment is to be made, and also the particular account. * The rules are dated 21st Dec, 1872, and the orders 23rd Dec, 1872. They will be found in 7 Law Rep., Chanc. App. PKOCEEDINGS UNDER THE DECREE. 99 if any, to which it is to be placed ; this order must be taken to the Chancery Pay Office, and the Pay- master-General will, in due course, issue a direction to the Bank of England, (which acts as banker to the Court,) to receive the money and place it to the credit of the Chancery Pay Office account. This direction must be taken to the bank when the pay- ment is made, and a receipt will be given by the "bank clerk, and the bank will send the direction back to the Chancery Pay Office, with a certificate thereon stating that the money has been received and placed to the credit of the above account. According to the old practice the receipt was taken back to the office of the Accountant-General, but it seems that it will now be kept by the person who pays in the money.* When securities are to be transferred into Court, the Paymaster-General will issue a direction for the transfer thereof to his account on behalf of the Court, which direction will specify the title of the cause or matter to which such securities are to be placed in the books at the Chancery Pay Office, and wiU be a sufficient authority to the bank or company, in whose books such securities are standing, to make such transfer; and when such tra,nsfer is made or registered the bank or company will send back such direction to the Chancery. Pay Office with a certifi- cate thereon that the securities therein specified have been transferred to the said account, f Money or stock brought into Court to the credit • See rule 9 of the rales of 21st Dee., 1872. t See rule 15 of 21st Dec., 1872. , v2 100 PROCEEDINGS UNDER THE DECREE, of any suit or matter is placed to some particular account, which is named in the order directing the payment or transfer; the title of this account ex- presses shortly the source from which the money is derived, or the persons to whom it belongs : thus, if it belong absolutely to one person who is an infant or otherwise under disability, it wUl be placed to the credit of the suit, " The account of A. B., an infant," or otherwise, as the case may be. Sometimes the title of the account expresses that the fiind is liable to legacy or succession duty, the object being to prevent any mistake being made when the ftmd is applied : it is the duty of the Paymaster-General to take care that these duties are satisfied before any money subject to them leaves his hands.* When money or stock is standing to any accoimt in a suit or matter, it cannot be dealt with except upon notice to all persons interested who are parties to the suit ; but when a fiind is standing to the sepa- rate account of any person, that person may alone apply to have it paid out vdthout giving notice to any one else; sometimes, however, it happens that persons are interested in the fimd who are not parties to the suit, as particularly when a mortgage or sale is made of a fund in Court : in such a case the mortgagee or vendee should prociire a stop order, the nature of which is described in a subsequent Chapter, Part III. Chap. 3, Sect. 2. » Sec 23rd Cons. Ord., rale 9. PROCEEDINGS UNDER THE DECREE. 101 When money is to be paid out of Court, the order directing the payment is taken to the Chancery Pay . Office, and in due course a cheque for the amount will be given by the Paymaster-General;* generally the payment is directed by the order to be made to the person actually entitled for his own benefit, who must be identified by a soHcitor : but if the payment be made for costs, it is made directly to the solicitor, his being the hand ultimately entitled to receive it ; and often, money is ordered to be paid to the soli- citor on his undertaking to see to the application of it, where several small sums have to be paid, and the expense of the attendance of aU the claimants at the office would be considerable. The transfer of securities out of Court is inade by means of a direction issued by the Paymaster- General, upon receipt of which direction, and of a certificate of a Registrar of the Court, or a Master or Registrar in Lunacy, countersigned by the Pay- master-General, authorizing such transfer, the bank, or company, in whose books such securities are standing will cause such transfer to be made by their proper officer, and wiU send such direction back to the Chancery Pay Office, with a certificate thereon that the transfer therein mentioned has been made.f If the securities ordered to be transferred into Court are of a nature to pass by delivery, such as foreign bonds or railway debentures, they will be deposited in the Bank of England under a direction • See rule 18 of 21st Dec, 1872. t See role 26 of 21st Dec, 1872. 102 PROCEEDINGS UNDER THE DECREE. issued by the Paymaster-General, and will be de- , livered out on the like direction. It often happens that before the main question in a suit can be disposed of a decision must be obtained on some previous and subsidiary question, either of law or of fact. When such a question of law arose, it was formerly the practice to state it in the form of a case, and send it for the opinion of a Court of Law : the case was argued before this Court, and a certificate returned of the opinion of the Judges : this power was taken away by the 61st section of the " Jurisdiction Act," but the Judges in Chancery have the power to call in the assistance of a Common Law Judge,* who hears the argument in the Equity Court, and gives his opinion on a question submitted to him by the Equity Judge. The recent Act (25 & 26 Vict. c. 42), which provides for the trial by or before the Court of Chancery of questions of law or fact arising in suits, contains an express clause preserving the right of the Chancery Judges to call in a Common Law Judge to aid in deciding ques- tions of law. "With regard to questions of fact, the Court of Chancery is now bou'nd either to decide them without the aid of a jury, or to summon a jury, under the power conferred by the statute (herein- before mentioned) of 21 & 22 Vict. c. 27. Probably the Court wiU feel bound to order a jury to be sum- moned, if any party to the suit require it, and at • 14 & 15 Vict. c. 83, s. 8. PROCEEDINGS UNDER THE DECREE. 103 any stage of the suit : for although, under the old practice, the Court did not usually direct an issue at law until it had heard the cause, stiU it had jurisdic- tion to grant an issue upon an interlocutory appli- cation ; and it has recently been held, that it is quite discretionary vrith the Court at what stage of the cause it will grant an application for trial by jury.* It frequently happens that the plaintiff in a Chan- cery suit must establish his legal right before he can obtain rehef in a Court of Equity : thus, if a bill be filed to restrain the infringement of a patent, the plaintiff may be required to prove the validity of the patent, before he can sustain his suit ; in such a case, the question of vaHdity will (instead of being tried by action at Common Law) be put into the form of an issue, and tried before the Equity Judge (with or without a jury). A further important addition to the powers of the Court of Chancery is conferred by the 2nd section of the above Chancery Jury Act, by which the Court, in all cases where it has jurisdiction to entertain appHcations for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any ■wrongful act, or for specific performance of any covenant, contract, or agreement, is empowered to award damages to the party injured, either in addition to or in substi- tution for such injunction or specific performance, and such damages may be assessed in such manner as the Court shaU direct. The regulations made by • Eoskell V. Whitworth, 5 Law Rep., Ch. App. 459. 104 PBOCEEDINGS UNDER THE DECKEE. the Judges with reference to proceedings under the Act will be found in the 41st of the Consolidated Orders, rules 26—52. The issuing of particular writs is sometimes di- rected by the decree, but as this is more usually done on motion, we shall say no more about it in this place. When an injunction has been issued on motion, it is sometimes made perpetual by the de- cree;: the effect of this direction is that the injunc- tion can then be discharged only by a proceeding of solemnity sufficient to reverse the decree : as long as the writ depends simply on an order made on motion, it can be discharged by another motion. A class of cases remains to be noticed in which the Court is applied to for the performance of func- tions resembling those of an arbitrator : as in the case where a partition of land is sought by one of several owners. Here the decree wiU order a com- mission to issue to persons appointed by various parties to the suit, directing them to divide the land in question into lots, according to the interests of the different parties : the commissioners accordingly make the allotment and return the commission, whereupon the Court directs mutual conveyances of the several portions, by which the partition is completed. The proceedings in suits for settlement of boun- daries and for assignment of dower are generally similar to the above. PEOt^EEDlNGS UNDER THE DECREE. 105 The Court ■\viE sometimes make a decree for par- tition at once, without the expense of a commission, on being satisfied by the affidavits of surveyors that the proposed partition is fair and proper. For a form of such a decree, see 3 Sm. & Giff. 18. A recent Act* (known as " The Partition Act, 1868") contains some very beneficial provisions enabling a sale to be made of property in a suit for partition, the Act empowering the Court of Chancery to order a sale of the property which is the subject of the suit in the three following cases: — (1) If it appears to the Court that by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between them. — (2) If the party or parties interested, individually or collectively, to the extent of one moiety or upwards, in the property to which the suit related request the Court to direct a sale and a distribution of the pro- ceeds thereof instead of a division of the property. — (3) If any party interested in the property requests the Court to direct a sale and a distribution of the proceeds thereof, instead of a division of the pro- perty, unless the other parties interested in the pro- perty, or some of them, undertake to purchase the share of the party requesting a sale. , • 31 & 32 Vict. c. 40. r 5 106 PEOCEEDINGS UNDEK THE DECKEE. It has been decided that the discretion which in the 1st and 3rd cases is given to the Court as to whether it will make a decree for sale or not, does not exist in the 2nd case, but that if the parties entitled to a moiety or more wish for a sale, the Court must order it, unless it sees good reason to the contrary.* • Pemberton v. Barnes, 6 Law Kep., Ch. App. 685. ( 107 ) CHAPTER II. PROCEEumes in chambers. Hitherto we have not spoken of any proceedings taken before a Judge, except while sitting in Court : but the larger portion of the business of the suitors is transacted out of Court, in the Chambers of the Judges : of the mode of carrying on this business we propose to speak in the- present Chapter. The business done in Chambers is of two kinds : one is the making of orders in cases which are so simple, or involve property of so small an amount, that it is expedient to avoid the expense of a hear- ing in Court: the other is business which is Kttle more than ministerial, such as the taking accounts and making inquiries directed by decrees. These two classes of business will be treated of in the two Sections of the present Chapter. Section 1. Ministerial Business. It is observed in the treatises on Equity Jurispru- dence that a great part of the jurisdiction of the Court of Chancery arose from the facilities which that Court presented for the determination of mat- ters of account, which facilities consisted not merely 108 PEOCEEDINGS IN CHAMBERS. in the power given to the plaintiff to obtain a dis- covery on the oath of the defendant in aid of proof of the items, but also in the existence of machinery better adapted than that of a jury to determine on the multitude of questions of fact which necessarily arise in taking a long account. From these causes, the Courts of Equity were supported in their as- sumption of jurisdiction in every case of complicated accounts ; and now, in order to support a bill seeking to have an account taken in Equity, it is unneces- sary to show any ground of equitable interference, beyond the mere fact that the account is too com- plicated to be conveniently disposed of in an action at Law for the balance. Moreover, there are very few suits of any kind in which it is not requisite to take accounts, in aid of the main object of the suit : so that a very great amount of business of this kind has to be disposed of. It is also frfequently necessary to make inquiries as to the members of a family, or the expediency of dealing with property in a par- ticular way, or as to other points on which the Court requires to be satisfied before the rights of the parties to the suit can be finally determined. Thus, aU the ministerial business of the Court comes under the two heads of accounts and inquiries, which are carried on by the Chief Clerks in pursuance of directions fi:om the Judge ; and it is usual to pray in almost every bill that, for the purposes previously mentioned, all proper directions may be given, ac- counts taken, and inquiries made, though this general form should not be considered sufficient to preclude the necessity of indicating in the prayer PROCEEDINGS IN CHAMBERS. 109 tne specific matters as to which accounts and in- quiries are anticipated. The Chief Clerks to whom this business is con- fided are at present twelve in number, three being attached to the chambers of the Master of the E,olls, and three to each of the Vice-Chancellors. They are appointed by these Judges respectively, by virtue of the Act of Parliament passed in 1852* for the abohtion of the office of Master in Chancery : before that year,' the ministerial business of the Court was transacted by the Masters, f The Act provided for the appointment of two Chief Clerks only to each Judge, but the number has been increased by subse- quent Acts as the business increased. The Chief Clerks of each Judge attend at his chambers daily, except during Vacation; the busi- ness is divided between them by the first letter of the surname of the first plaintiff". A daily list of the cases to be disposed of by each is made out and hung up outside the door of the chambers. In order to procure the taking of the accounts directed by any decree, the party having the car- riage of the decree {i.e. usually the plaintifi") takes a copy of it to the chambers of the Judge to whose Court the cause is attached, the copy having in- dorsed upon it a certificate of its correctness signed * 15 & 16 Vict. c. 80. Every C3iief Clerk (unless he has been a Clerk to one of the Masters) must be a Solicitor of ten years' stand- ing at the least : on being appointed, he must procure liimself to be struck ofe the roll of Solicitors. See also 27 & 28 Vict. c. 15. f By order of Court, dated the 23rd August, 1860, all matters then pending before the Masters were transferred to the Judges. 110 PROCEEDINGS IN CH/VMBEES. hj the solicitor : tiis copy so carried in is the founda- tion of all the subsequent proceedings in chambers. On receiving this copy of the decree, the clerk will mention what is the earliest day and hour at which he will be disengaged, so as to be at liberty to pro- ceed with the business ordered by the decree: the time appointed is entered in a book, called the Sum- mons and Appointment Book, and a summons is issued, returnable at that time. A summons is the document by which aU parties concerned are required to attend at chambers when any matter is to be gone into : its form is prescribed by 35th Cons. Ord. r. 2, and will be found in the Appendix, No. XVIII.* The form there given is that used when the object of the appHcation is to enter on the taking accounts under a decree : but in every case the particular object sought must be shortly stated. When a summons is to be issued, two copies are taken to the chambers, when one will be filed and the other sealed by the clerk, who at- the same time will make an entry in the Summons and Appoints ment Book : copies of the summons are then made for service, which is effected by delivering a plain copy and at the same time showing that bearing the seal; there should be at least seven days between the service and the return, and if through any cause the service cannot be effected in time to leave that interval, the day of the return will be altered on an apphcation for that purpose in chambers, and a new • See also Scljednle K, appended to the Consolidated Orders. PEOCEEDIXGS IN CHAMBEKS. Ill day indorsed, the indorsement being authenticated by the seal. On the arrival of the time appointed, the parties attend either personally or by their solicitors, counsel not being heard in chambers before the Chief Clerk, and the first thing to be done will generally be to fix a time for the accounting parties to bring in their accounts : the length of time allowed for this will of course vary with the nature, length, and complexity of the matters in question. On the arrival of the appointed time, the accounting party makes an affi- davit verifying the statements of an account which is annexed to the affidavit as an exhibit, and this is brought into chambers. In the last edition of Mr. DanieU's " Chancery Practice," and in many other books, will be found specimens of accounts as practi- ■ cally used in chambers, and it has not been thought necessary to reproduce them here. It wiU be ob- served that the items on each side of each account are numbered consecutively. When the account has been brought in, any party interested may give notice to the accounting party of any errors which he may think the account to contain, accompanying such notice with a concise statement of the grounds of his objection ; the Chief Clerk afterwards at the appointed time goes through the account with reference to these objections, and may allow or disallow them, as he thinks right, on consideration of the evidence brought before him, either orally or by affidavit. The account is of course looked upon as conclusive against the accounting party, and therefore the objections will consist of 112 PROCEEDINGS IN CHAMBERS. additions to the items on the one side, and of striking out or diminishing items on the other side. Even when no objection is made bj any party, vouchers must be produced for every payment above 21., sub- ject to a power vested in the Court to order, in a proper case, that books of account be taken as prima facie evidence of the truth of their contents : this power is very sparingly exercised. When the Chief Clerk gives his decision on each point, the corresponding alterations, if any, are made in the account ; and finally, if the alterations are considerable, a transcript is made of the whole as altered. These proceedings have been described as taking place before the Chief Clerk, as in fact is usually the case : but any party has a right to require that any particular question be disposed of by the Judge in person ; and for this purpose the Judges sit daily in chambers, after the termination of their Court busi- ness : the abuse of this' power of applying to the Judge is prevented by the discretion exercised in the disposal of the costs of the hearing. Counsel may be heard before the Judge in chambers, but as a rule the busiaess in chambers is conducted by solicitors. The result of the account thus taken is finally em- bodied in a certificate by the Chief Clerk, which is signed and adopted by the Judge in the same manner as a certificate giving the result of inquiries directed to be made by a decree. To these inquiries we will now direct our attention. The inquiries which are most frequently prose- PROCEEDINGS IN CHAMBERS. 113 cuted in the Judge's chambers are those directed by decrees for the administration of the estates of de- ceased persons ; such as inquiries after creditors, legatees, next-of-kin, heirs-at-law, encumbrances af- fecting property, and the like. In the latter class of inquiries, sufficient evidence to satisfy the Chief Clerk can usually be produced by affidavit ; but in the case of an inqxiiry after creditors, next-of-kin, or other unascertained classes of persons, it is usual also to issue an advertisement, which is inserted in the " London Gazette" on a copy being produced at the office bearing the signature of the Chief Clerk, and is also inserted in the usual manner in some other newspapers, where it is most likely to be seen by any of the parties sought after. It will be seen that by the terms of the advertisement for creditors (the form of which is given in the Appendix, No. XIX.), aU who do not come in by a certain day wUl be excluded from the benefit of the decree : this means that, if they do not make their applica- tion until after that day, they may find that aU the assets have been distributed among other creditors, who will never be compelled to reftmd what they have once received : but if the assets are more than enough to pay in full all the creditors who do come in, so as to leave a surplus divisible among volun- teers, such as legatees or next-of-kin, these will be compelled to refund proportionately whatever may be necessary to pay in full creditors who subse- quently prove their debts. A similar rule applies to advertisements for next-of-kin, and the like. The practice as to creditors sending in their 114- PEOCEEDINGS IN CHAMBEE8. claims under the last-mentioned advertisement, and as to the mode and extent of proof now required of such claims, is materially altered by the General Order made on the 27th May, 1865 ; from the sche- dule to which order the form of advertisement above referred to is taken. The creditor sends in his claim, within a time limited by the advertisement, to the executor or administrator of the deceased, or to such other party as the Judge shall direct, or to his soli- citor, together with the name and address of the creditor, and the statement of his account, and the nature of his security (if any). The executor or administrator, or such other party as aforesaid, then examines the claims, and makes an affidavit stating which of them he believes to be justly due; this affidavit is to be filed at least seven clear days before the day appointed for adjudicating on the claim, unless the Judge postpones the filing. The creditor need not, as heretofore, prove his debt, unless the Judge, at the time of adjudicating on the claims, thinks fit to require such proof, in which case the executor or administrator, or such other party as aforesaid, vsdll give notice to the creditor to attend at the Judge's chambers on a specified day, and prove his debt; if the creditor fail to comply with such notice, his claim will be disallowed. A creditor holding security for his debt' must produce it at the time of adjudicating on the claims ; and every creditor must, if required by notice given by the executor or administrator, or such other party as the Judge directs, produce at the Judge's PROCEEDINGS IN CHAMBERS. 115 chambers at the time specified in such notice all deeds and documents necessaiy to support his claim. Another ministerial function performed in cham- bers under a common administration decree consists in carrying out the direction that the property be applied ia payment of the debts and legacies in a due course of administration : this payment is usually made by the executor or administrator, out of the balance in his hands, and the amount paid is allowed him in his accounts. Another matter of great importance, to which we can only briefly allude here, is the sale of estates, which may be ordered at any stage of any suit; and which is commonly ordered in every decree for the administration of realty, conditionally on its appear- ing to be necessary through the insufficiency of the personal estate for payment of the debts of the de- ceased. A fuU detail of the mode in which a sale is efiected will be found in the " Treatise on the Law of Vendors and Purchasers," by Lord St. Leonards. It will here be sufficient to say, that the title to the estate is investigated and the conditions of sale are drawn by one of the conveyancing counsel to the Court: a reserved bidding is fixed for each lot by the Chief Clerk, and the sale is efiected by an auc- tioneer in the usual way : the purchaser is entitled to an abstract of title and to a conveyance as in ordinary cases : and the result of the sale being cer- tified to the Court, an order is made that on paying his purchase-money into Court the purchaser be let into possession, and the conveyance executed by all proper parties. Even after the result of the sale has 116 PEOCEEDINGS IN CHAMBERS. been certified, it was formerly competent for any person to apply to have the estate again put up to competition, on his offering a large increase over the price at which it was actually knocked down : this was termed opening the biddings. The practice of opening biddings has, however, been put an end to (except in cases of fraud or misconduct in the sale) by the Act 30 & 31 Vict. c. 48, s. 7. Reference has just been made to the conveyancing counsel to the Court : these are barristers, at present six in number, who having been practising as con- veyancing counsel for not less than ten years, are selected for the post by the Lord Chancellor : to these gentlemen in rotation is referred all business in the nature of conveyancing which comes before the Court.* When everything has been done in chambers which is directed by the decree, the result is em- bodied in a certificate by the Chief Clerk, to which are annexed, by way of schedule, the accounts on which it is founded. The nature of this certificate will be best, understood, by consulting the example given in the Appendix, No. XX. : it will be seen that it gives generally only the gross balances of the accounts, but that when necessary any special circum- stances will be stated. The certificate also contains a short statement of the evidence on which the Chief Clerk grounds his finding. The certificate is settled and signed by the Chief Clerk in the presence of aU parties, after which it must be signed by the Judge. This wiU be done * See 15 & 16 Tict. c. 80, s. 41. PEOCEEDINGS IN CHAMBEES. 117 without investigation after the lapse of four days, unless in the meantime any party express his inten- tion of applying to the Judge to vary any point in the certificate : the pai-ties had the same opportunity of taking the Judge's opinion when the point was originally before the Chief Clerk, but if they please they may wait untU the whole certificate is completed, after which and within four days they may apply to the Judge, who wUl give his decision and either at once sign the certificate or direct the Chief Clerk to vary it, as the case may require. When the certi- ficate has been signed by the Judge, it is forthwith Sled, and any party wishing to vary or discharge it must apply, by summons or motion, either at cham- bers or in Court, within eight clear days after the filing.* Occasionally an order directs payment out of Court of a sum of money of which the amount is uncertain at the date of the order, but which can easily be as- certained, such as if it be a sum of interest up to the day of payment : the amount of this is calculated by the Chief Clerk, and a certificate signed by him wUl be acted upon by the Paymaster-General, without the delay of four days necessary to obtain the signa- ture of the Judge. We have said that, as a rule, counsel do not ap- pear at chambers : the chief exception to this rule is when sometimes a pressing matter arises in Vacation respecting which an appHcation would be made in open Court, if the Court were sitting : in such a case, the Judge will hear the application in any con- • See 15 & 16 Vict. c. 80, s. 34, and 35 th Cons. Ord., rule 62. • 1 1 8 PEOCEEDINGS IN CHAMBERS. venient place, and for this purpose his chambers are often chosen, where therefore counsel will attend. But this is not what is technically called a hearing in chambers, and it wiU often be had at the Judge's private residence, whether in London or the country. It has been remarked before, that any party has a right to require that questions arising before the Chief Clerk in chambers may be heard by the Judge, and in practice these questions, if requiring argu- ment, are often adjourned into Court, to be argued by counsel.* The names of the matters to be so heard appear in the list of business for particular days, as " adjourned summonses," and the object of the application, and on whose behalf it is made, will be stated in the summons ; sometimes, however, the parties agree upon the facts and points on which the question arises, and embody them in the form of a statement or case, a copy of which is ftu-nished to the Judge through the Chief Clerk. Appeals can be brought from decisions in cham- bers in just the same manner as from decisions in Court ; but cases of sufficient importance to be the subject of an appeal are generally of importance enough to be fully considered by the Judge below, and therefore ought to have been adjourned into Court : and a practice exists of adjourning matters into Court pi-o forma when the Judge has come to his decision in chambers,f and it is intended to take the point before the Court of Appeal. • See Re Mitchell, 9 Jur., N. S. 1272. t See York and North Midland Railway Company v. Hudson, 18 Bea. 73, and Smith's Chancety Practice, 7th edit., vol. 1, p. 953. proceedings in chambees. 119 Section 2. Judicial Business in Chambers. We have in the last Section described the mode in which the Chief Clerks investigate matters submitted to them, and embody the result of their investiga- tions in a certificate which is approved by the Judge, and which is in all subsequent proceedings taken to be incontrovertibly true, unless a motion be made or summons taken out to vary it ; but, besides this business, the Chief Clerks frequently make orders of the same nature as orders made in Court : to these we must now direct our attention. We have not yet met with any expression of the judicial will of the Court, except decrees : it wUl, however, readily be understood that matters frequently require to be decided in the course of a suit both before and after decree, which decisions are termed orders ; these are generally made on motion or peti- tion, which modes of proceeding will be treated of in subsequent Chapters, where more will be seen of the nature of these orders. But orders may also be obtained, in certain cases, by summons in chambers, and when this course is possible it ought to be pursued, inasmuch as it is the cheapest course; the extra costs of any more expensive proceeding would have to be borne by the party in fault. The applications which ought to be made at cham- bers are specified in section 26 of 15 & 16 Vict. c. 80, and in Eule 1 of the 35th Consolidated Order ; we can only here say, that in any case where a party 120 PROCEEDINGS IN CHAMBERS. wishes to obtain a longer time for taking any step relating to his pleading or evidence than is allowed for the purpose by the general rules of the Court, he must apply in chambers for an order giving him the requisite leave. So also, if a plaintiff wish to amend his biU, he must apply for an order at chambers: except that he can obtain any number of such orders before and one after answer, by motion or petition of course : this, as will be seen hereafter, is a simpler and cheaper proceeding than even that in chambers. Moreover, orders are made at chambers for pay- ment out of Court of sums not exceeding 300Z., and for payment of dividends amounting to less than 10?. per annum : • and also in a great variety of other cases, connected with the conduct of suits and the management and sale of estates under orders of the Court. One class of applications, however, that for the production of documents, is of such importance as to call for a more extended notice. A principal branch of the right to discovery which a plaintiff has in Chancery has always consisted in the right to the production of any documents in the possession of the defendant, which may be material for the support of the plaintiff's case. In order to ascertain whether any such documents exist, and if so what they are, it has always been usual, though it is not now necessary, to introduce into almost every bill a charge that the defendant has in his possession or power divers documents relating to the matters in question in the suit : and on this charge was founded an interrogatory* requiring the de- • See now PifEard v. Beeby, 1 Law Uep., Eq. 623. PROCEEDINGS IN CHAMBERS. 121 fendant to give a description of all sucli documents^ which is accordingly done by the answer. Before the recent alterations in the practice, the plaintiff moved the Court for an order that the defendant should produce any documents of which he had, by his answer, admitted the possession ; but now the application for such an order should be made at chambers. For this purpose a summons is taken out, of which the form expresses the object of the application, and is served on the defendant. If a sufficient admission of the possession and description of the nature of the documents appear upon the answer, the order will be at once made; but if the answer do not show these particulars, or if no answer have been put in, an order will be made that the defendant within a limited time make an affidavit* in a prescribed form, stating what documents he has or had in his posses- sion or power, and that within a limited time, after the filing of such affidavit, he produce and leave with the Clerk of Records and Writs the documents men- tioned in such affidavit, except such as he shall object to produce ; the plaintiff may then inspect and take copies of aU the documents so produced. Very nice questions often arise as to whether p, defendant is compellable to produce particular docu- ments : some of the principal grounds of objection are, that they do not tend to support the plaintiff's case, but rather relate to that of the defendant : or • See a form of such affidavit in Smith's Chanc. Prac. 7th edit, vol. ii. p; 195 ; and see a form of the order in Setoa on Decrees, pp. 1040, 1041. L. G 122 PEOCEEDINGS IN CHAMBERS. that they are privileged on the ground of professional confidence between the defendant and his solicitor or counsel. Occasionally a party is entitled to have part of a document produced, but is not entitled to see the rest : in such a case, the privileged part is sealed up, and the grounds of privilege are explained in the aflSdavit. An order for production of documents by the plain- tifi" is obtainable by the defendant, after he has put in a sufficient answer to the interrogatories, if any have been served on him.* Formerly a cross biU was necessary for the purpose ; and if a defendant wishes for production of documents by a co-defendant before decree, he must still file a cross bill,t but after decree a defendant may take out a summons at chambers for production of documents by a co-de- fendant. | If the defendant put in an insufficient answer to an interrogatory as to documents, exceptions to this answer wiU he ; but ordinarily a plaintiff should not in such a case except, but should proceed in cham- bers, where he can have the same discovery on this point as would be given by a sufficient answer: if exceptions be filed, the proceeding wiU, in the ab- sence of special circumstances, be considered vexa- tious, and wiU be punished in the awarding the costs. If the defendant make an insufficient affi- davit as to documents, the plaintiff may apply at • See 15 & 16 Vict. c. 86, s. 20. t Attorney-General v. Clapham, 10 Ha. App. 68. X Hart V. Montefiore, 10 W. R. 97 ; 15 & 16 Vict. c. 86, s. 20. PROCEEDINGS IN CHAMBERS. 123 chambers for an order that the defendant file a fur- ther affidavit, and the time for filing named in the- first order will be enlarged accordingly. (See Seton on Decrees, 1043".) It seems that this order may, if desired, be applied for in Court. (See 3 Jurist, N. S. 1120.) The proceedings necessary to obtain an order in chambers in other cases are generally similar to those just described: a summons is obtained and served on all parties interested, in the same manner as a summons to proceed on a decree : on the return of this summons the parties attend by their soH- citors, and support or oppose the application by affi- davits. The hearing is usually had before the Chief Clerk, though any person may insist on an ad- journment before the Judge himself: which (as be- fore stated) means in many cases an adjournment into Com-t to be argued by counsel.* The order made, if simple, is drawn up by the Chief Clerk, and afterwards entered in the ordinary way vsdth the Registrar: indeed, in all the more common cases printed forms are used, when it is merely necessary to fill up the blanks and impress the seal : if, how- ever, any difficulty occurs as to the form of the order, a mere minute is indorsed by the Chief Clerk on the summons, which is taken to the Registrar, when the order is drawn up, passed, and entered as usual with orders pronounced in Court. Before leaving the subject of proceedings in cham- bers, it may be observed that certain regulations as • See Be Mitchell, 9 Jnr,, N. S. 1272. g2 124 PKOCEEDIKGS IN CHAMBERS, to such proceedings have been drawn up and agreed upon between the Master of the Rolls and the three Vice-ChanceUors. These regulations prescribe the forms which are generally to be observed, but are not held absolutely obligatory in every case,* not having the force of general orders of the Court. They wiU be found in " Morgan's Chancery Prac- tice." • Be flargreave's Settled Estates, 7 W. R. 156. ( 125 ) CHAPTER III. FURTHER CONSIDERATION. "VVe have already seen that a suit is very seldom dis- posed of by a decree made at the hearing, but that something ordinarily remains to be done in pursu- ance of this decree ; and we have also seen, in the last Chapter, in what manner the directions given for this purpose are carried out in chambers by the Chief Clerk, acting as the deputy of the Judge. Sometimes the object of the suit will be completely attained by what is done in chambers, as, for in- stance, in the case of a redemption suit by a mort- gagor : here the decree directs an account of what is due on the security for principal, interest, and costs, and of what the mortgagee has received, in case he has been in possession, and that on payment of the balance by the mortgagor, the mortgagee shall reconvey to him : if these accounts be taken in chambers, and the deed of reconveyance be there settled, if necessary, and executed by all parties without forther compulsion, there is no need to recur to the Court : the mortgagor has got back his estate discharged from the mortgage, which is all that he asked or could get by his bill. In this case, from the nature of the suit, even the costs are disposed of under the original decree : but in most 126 FUKTHEE CONSIDERATION. cases, as we have seeD, the decree says nothing about the costs: so that at least this question will usuaUj remain to be disposed of on a further hear- ing, after the Chief Clerk has made his certificate. Under the old practice, when the accounts were taken before the Masters, in pursuance of the direc- tions of the decree, this subsequent hearing, after the Master had made his report, was called a hear- ing on further directions, or on fiirther directions and costs, as the case might be : it is now called a hearing on further consideration. When a certificate has been made by the Chief Clerk, it is filed in the Report Office, after which office copies can be procured by the parties. It is tho duty of the party having the carriage of the business to bring the cause on for ftirther considera- tion, if necessary, but (except by consent) nothing can be done with that view until eight days have elapsed fi'oin the filing of the certificate : afiter that time, and within fourteen days fi-om such filing, the cause will be set down at the request of that party, on his producing to the Registrair an office copy of the certificate ; but after fourteen days fi:om the filing of the certificate, the cause may be set down by any party.* The cause must not appear in the daily paper until ten days have elapsed since it was set down : and notice of the fact that it has been set down must be given to all parties at least six days before the first on which it can possibly appear, consistently with the above rule, • See 21st Cons. Ord. rule 10. FUETHEE CONSIDEKATION. 127 Cases frequently arise in wMcli the parties agree upon the order to be made on the hearing, and then the cause will generally be fit to be taken as a short cause. The briefs to be delivered to counsel at the hear- ing will consist of the old briefs used at the original hearing, together with an abbreviated copy of the decree made thereon, and of the body of the certifi- cate made by the Chief Clerk : to these wiQ be added the miButes of the order, if any, agreed upon between the parties. If necessary, the schedules to the certi- ficate may be added. The case will come on in its turn, and be argued, and an order wiU be made and drawn up in the manner already described with respect to a decree. This order, in its general nature, is similar to a de- cree ; and, like it, is sometimes final, and sometimes directs a fiirther reference to chambers : on this re- ference fiirther proceedings are taken, the result of which is embodied in a further certificate, and the cause may, if necessary, be again set down for further consideration : but most commonly the proceedings taken under an order on fiirther consideration finally dispose of the suit, including the question of costs, which, as we have seen, is generally left untouched to the last. ( 128 ) CHAPTER IV. SUPPLEMENT AND REVIVOR. "We have shown in a preceding Chapter, in what manner the plaintiff can by amendment introduce into his bill any matters which it is necessary should be put in issue between the parties, but which are not raised on the biU as originally filed: and this, whether the omission of the new matter arose origi- nally from negligence or accident, or from the fact that the plaintiff could not, before he had seen the defendant's pleadings, know that it would be neces- sary to make any mention of it. Until the legislation of 1852 made an alteration,* this great restriction existed as to the liberty of amendment, namely, that no matter could be stated on the biU which had not happened before the original bill was filed, from which time aU the pleadings were supposed to speak. No means, therefore, existed of introducing into the original bill any facts, except such as happened be- fore that bill was filed. But obviously cases would sometimes occur where this restriction prevented the parties bringing before the Court facts which ought to have the greatest • See 15 & 16 Vict. c. 86, s. 53. SUPPLEMENT AND REVIVOR. 129 influence on the determination of the suit : and espe- cially if, after the institution of the suit, any of the parties died, any decree would be useless which could be made on pleadings which took no notice of this circumstance. This difficulty was surmounted by the use of bills called bills of revivor, or of supplement and revivor, or of supplement simply, according to the particular purpose to be served by them. It is not our intention to enter on a discussion of the na- ture and differences of these several species of biUs, which will be found to be ftilly treated of in Lord Eedesdale's Treatise : it will be sufficient to say here that, generally speaking, in each of them the whole of the original biU was set forth, together with the new matter, and that the defendants were interro- gated and had to put in answers : and when the suit was brought to a hearing, a decree was made to the effect that the original suit should proceed as if the new matter had been contained in the original bill. These proceedings were of course very tedious and expensive. We must now proceed to describe the new practice with respect to supplement and re^avor, by which all unnecessary expense and delay are avoided. It often happens that the new event requiring to be introduced into the record of the suit is one which wholly deprives some party of any interest in the subject of the suit, as the marriage of a female, plain- tiff or defendant, or the death of a party to the suit whose interest does not survive to any other party to the suit ; in these cases the suit is said to have be- come abated or defective, and to require to be revived: G 5 130 SUPPLEMENT AJTD REVIVOK, this is done by what is called an order* o^ revivor, obtainable on motion or petition as of course, in the form given in the Appendix, No. XV. 5 : in simple cases, no amendment of the biU is necessary, but the suggestion on which the order is based is a sufficient statement on the record of the facts there mentioned. This order is served on the persons xaade partiea to the suit by it, and they enter appearances as if they had been served with a bill, after which they are considered' as parties to the suit. If, however, the circumstances be at all complex, it will be necessary to state the facts expressly on the record, either by amendment or, if the time has passed for amendment (as if the evidence be closed), in the way to be de- scribed directly; and the new parties can then be compelled to answer interrogatories founded on this statement. If a suit become abated after a decree has been made, and the plaintiff neglect to revive it, any of the defendants can do so; but a defendant cannot revive a suit before decree ; he may, however, if the abatement arise from the death of a sole plaintiff (be- fore or after decree) obtain an order that the repre- sentatives of the plaintiff may revive the suit within a limited time, or that the BiU be dismissed.| A similar order may be obtained where the abatement has arisen from the death of one of several plaintiffs,^ or from the marriage of a female plaintiff. Provi- sion is made by the Jurisdiction Act for the dis- • See 15 & 16 Viet. c. 86, s. 52. t 32nd Cons, Ord. rule i. J Chichester v. Hnuter, 3 Bea. 491; Saner v. Deaven, 16 Bea. 30. SUPPLEMENT AND REVIVOR. 131 charge of an order of revivor, in case it be obtained against improper persons, when the person obtaining it will usually have to pay the costs.* In case it be necessary for the plaintiff to state on the record any new matter happening after the insti- tution of the suit, and the time has passed for amend- ing the Bill for the purpose, the plaintiff may file what is called a Supplemental Statement, which will embody the matter in the same form as the stating part of a bill : upon this the defendants can be inter- rogated, and may put in their answers in the ordinary manner ; the time within which the proceedings are taken, and other detaUs of the practice being gene- rally similar to those in the case of a bUl, but subject to the discretion of the Court. f • 15 & 16 Vict. c. 86, s. 52; 32nd Cona. Ord. rule 1. t 15 & 16 Vict. c. 86, s. 53; 32iid Cons. Ord. rale 2. ( 132 ) CHAPTER V. MOTIOXS. We have several times alluded to orders of the Court made in suits, not upon occasion of the hearing, but at other times, either before or after the decree, and we have seen that in certain simple cases these orders can be obtained in chambers. These are generally of little importance, and never involve the principal question in the suit : but it not unfrequently happens that the relief given by the Court would be absolutely useless, if the plaintiff did not get it before the hear- ing, and in fact immediately ; and even where this is not the case, most important questions frequently arise in such a form, that they cannot be well deter- mined on the hearing, or on further consideration. There are two modes by which such questions can be brought before the Court : by motion, when no lengthened statement is required in addition to the pleadings to indicate the point to be decided: and by petition, when it is necessary to have a written statement of the grounds of the application. Of petitions we shall treat in the following Chapter. The First Section of the present Chapter will de- scribe the general nature of and proceedings upon motions, and the Second wiU enumerate those which are of greatest importa,nce and most frequent occur- MOTIONS. 133 rence; in the Third we shall say something of a peculiar kind of motion called a Motion of Course, whereby, ia proper cases, orders may be obtained not only without any discussion, but even without any notice to any other party, all that is necessary being that the proceedings should be regular. Section 1. Special Motions in General. We have said above that a motion is the mode adopted for obtaining an interlocutory order of the Court, when no written statement is needed of the grounds of the application, but the pleadings in the cause are sufficient. This rule, however, is by no means a competent guide in determining practically whether in any particular case the proceeding by motion will be proper, or whether recourse must be had to a petition : in fact, no general rule exists on this point, and the practitioner must trust to his ex- perience alone. Mention will be made in this and the following Chapter of some of the more frequent and important applications made by motion and petition respectively. In the third section of this Chapter we shall point out the cases in which what are called motions of course are applicable: the motions now under con- sideration, called for the sake of distinction. Special Motions, always require to be mentioned to a Judge of the Court, and to be supported by evidence ; in both which particulars they will be found to differ from Motions of Course. 134 MOTIONS. Motions may be made by any party to a suit, and at any period of its progress; and a person not a party to a suit may move in that suit, if he have any reason for doing so : for instance, if he be interested in the subject-matter, and yet his interest is not such as to make him a necessary party, or no one has chosen to take the objection that the suit is defective on account of his absence. . When it is determined to bring a motion before the Court, the first question to be considered relates to the notice to be given of this intention. When a matter is pressing, or the object of the application would be defeated by its being prematurely disclosed to the parties affected, no notice need be given in the first instance : and when the application is founded on the fact that the party cannot be found, and no appearance has been entered for him, so that he has not given any address for service, then an advertise- ment in the " Gazette" is substituted for the service of notice of the motion. In general, it is not necessary to give notice to all the parties in the suit, but it is sufficient that all should be served whose interests are affected by the particular application : the party making the appli- cation must exercise his discretion in the selection of parties to serve, at the peril of having his motion refused with costs, in case the Court judge any person to be interested who has not been served. If persons are served unnecessarily, their course is to do nothing, and incur no expense ; for they have no interest in the decision of the question, and therefore ought not to increase the expense of the application by MOTIONS. 135 appearing upon it ; and the moving party can receive no injury from their non-appearance, for on his pro- ducing an affidavit of service, he will be entitled to whatever order seems just, even if the Court judge the party to be interested. If a party served incilr expenses in ascertaining whether or not his interest requires that he should appear, and it turns out that his appearance is not necessary, it has been held that he may nevertheless appear merely for the purpose of- securing the repayment of these expenses ;* pro- vided of course, no better method of obtaining this object was open to him. The form of a notice of motion for an injunction will be found in the Ap- pendix, No. XXL It will be seen that this docu- ment informs the person on whom it is served of the time of the application, and also of the name of the counsel by whom it will be made : this latter, how- ever, is not essential ; the Judge before whom it is made must be the one to whose Court the cause is attached, except sometimes when a pressing occasion arises for making an application in a pending suit during the Vacation ; in such a case, it may be made before any Judge who may happen to have remained in London. The exact object of the application should also be stated, for the Court cannot make any order except in conformity with that asked, or differing from it only in being less to the advantage of the person moving. If it be intended to ask for the costs of • Heneage r. Aikin, 1 Jac. & Walk. 377. See, however, several cases on the point collected at p. 43 of Morgan & Davey on Costs. 136 MOTIONS. the motion, it is usual, though not strictly necessary,* to mention it in the notice. In general there must be two clear days between the service of the notice and the day on which the motion is to be made, but in a proper case the Court often gives leave to serve notice for an earlier day, which is called short notice of motion. Special leave of the Court must be obtained before a notice of motion can be served on a defendant who has not entered an appearance to the biU, if the time limited for his appearance has not expired, and the notice must state that such special leave has been given. If any affidavits in sup'port of the motion have been filed before the notice is given, they should either be mentioned at the foot of the notice, or some other notice of them should be given to the opposite party, who may otherwise object to their being read, until at least he has had time to peruse them ; but no notice need be given of the intention to use affidavits ffled after the notice was given; which the other party must therefore search for and procure copies of from the Affidavit Office : whenever it is reasonable, the Court will adjourn the hearing, in order to give each party time to answer any affidavits filed on the other side so late, that there was no time to answer them before the hearing. The evidence to be used at the hearing consists generally of the pleadings and affidavits filed by the different parties : as to the use which may be made of the pleadings by the plaintiff and the defendants » Clarke v. Jaques, 11 Bea. 623j Bntler v. Gardener, 12 Bea. 525. MOTIONS. 137 respectively, the same rules apply as those already detailed in our Section on the Evidence of the Pleadings. Formerly a rule prevailed that, not only might a defendant read his ansAver on applications as to receivers and injunctions, but this answer was, so far as it went, conclusive in his favour, so that no affidavits could be read in opposition to the state- ments contained in it : this however is altered by the Jurisdiction Act of 1852,* and now the answer of the defendant is regarded only as an affidavit, and affidavits may be read in opposition thereto. AU the observations made in a former section, with respect to affidavits to be used on the hearing, of course apply equally to those to be used on a motion, or other interlocutory application. The briefs to be deHvered to the counsel wiU consist of the pleadings in the cause, the notice of motion, and the affidavits on both sides. The order in which motions are heard differs mate- rially from that already described with respect to the hearing of causes and other proceedings : these, it will be seen, are entered by the registrar in lists, and are called on in the order in which they stand in these lists : but no mention is made to the registrar, or other officer of the Court, of the intention to bring on a motion. In the Sittings Paper, which is published at the beginning of each series of sittings of the Court, certain days are mentioned as seal or motion days: on these, the daily list of business mentions merely that motions will be heard, without • 15 & 16 Vict. c. 86, s. 59. 138 MOTIONS. specifying in what causes : the business is opened by the Judge asking the senior counsel present whether he has anything to move, and if so he proceeds to make his motion, which is thereupon heard. When this is finished, the senior counsel, if he be within the bar, is again and again caUed on, until he has made two opposed, and any number of unopposed, motions, after which the next coimsel in seniority has a similar opportunity of making one, or if he be within the bar two or more motions: when all the barristers present have been thus called on, and each has had the opportunity of making one, or, if a Queen's counsel, two or more motions, the senior is again called on, and so on until no more motions remain to be made by barristers: the Judge then asks whether there are any more motions, and if (as is generally the case) there be no other person who has anything to move, the Court goes on to other business. The days set apart for motions are gene- rally one in each week, besides the first and the last day of the sittings. If any motions remain partly heard on the rising of the Court, they may be re- sumed the next day. Motions may, under special' circumstances, be heard on any day, whether during the sittings of the Court or not, and particular favour is in this respect shown to motions for injunctions. Two counsel are generally heard for each party who appears on a motion, but the number wiU be regulated by the length of the papers, and the diffi- culty of the question : the counsel for the party on whose behalf the motion is made are first heard, then those for the other parties, called the respondents. MOTIONS. 139 and lastly the senior counsel for the moving party repUes : the Court thereupon pronounces its judg- ment, of which minutes are taken, and an order is drawn up as before explained with respect to decrees. If the order says nothing about the costs, these are regulated according to certain general rules,* the effect of which is that unsuccessful parties bear their own costs, and all others, whether successful or simply passive, are entitled to their costs as " costs in the cause," the meaning of which phrase wiU be explained in the last Chapter of this Part. Section 2. Principal Kinds of Motions. "We have said that no general rule can be laid down as to the cases in which applications can be properly made to the Court by motion, and that there is no safe guide on the subject but experience, or lists compiled by practitioners of experiemce. No attempt is made in this Section to do more than to mention a few of the very commonest and most im- portant species of motions. And first of injunctions. 1. An injunction is described to be a writ issuing out of Chancery in the nature of a prohibition, that , is to say, a writ which has the same operation as a prohibition issued out of the Courts of Common Law. By these writs the party enjoined or prohibited is commanded not to do, or to cease fi-om doing, some act, so that in general they are applicable only where • See Morgan & Davey on Costs, p. 31. 140 MOTIONS. it is sought to preserve matters in statu quo : althougli OGcasionally what are called mandatory injunctions are issued, by which a person is commanded to cease to allow things to remain in statu quo, although he can obey this command only by being active in bringing about an alteration. It will be observed that even in mandatory injunctions the form of pro- hibition is retained; and there is no difference be- tween the two classes with regard to the practice of obtaining and enforcing them. In fact, the reason why injunctions which. are in effect mandatory are framed in a prohibitory form is, that equity is said to have no jurisdiction to compel on motion the performance of a substantial act, such as the pulling down a wall, though the same effect is produced by the Court ordering that the defendant be restrained from permitting the wall to remain.* An injunction is obtainable against any person who threatens and intends to do an inequitable act, which would cause irreparable damage to another: among the acts which' are most frequently restrained by injunction are, the bringing or continuing an ac- tion at law, the committing waste, whether " legal " or " equitable," the negotiating biUs of exchange or promissory notes or other such instruments, and the selling stock, ships, or other property : but, in fact, the occasions when this writ is a proper remedy are as varied as the objects of the jurisdiction of the Court of Chancery, and no enumeration could be made which would not be imperfect. We are here * See Drewry on In j mictions, 260. MOTIONS. 141 concerned with nothing but the practice relating to injunctions, which is quite independent of the object with which the writ is sought. It is a general rule that no injunction will be granted unless it be prayed for by a bill already on the file: but after a decree has been made in anv proceeding for the administration of the estate of a deceased person, the executor or administrator is entitled to the protection of an injunction to restrain any creditor from suing him at law although no in- junction has been in terms prayed for, because when the Court has undertaken to administer the estate, the creditor should have come into chambers, and claimed his debt under the decree. In consequence of this rule, it is a common practice to pray for an injunction by the bill in cases where there is not really any present intention of moring for it, by which course the expense and delay of amending the bill at a future time are avoided, if it happen in the course of the suit to become necessary to obtain the writ : ia order to afford ground for the prayer, it is necessary to allege that the defendant threatens and intends to do the act to be enjoined, which is there- fore often alleged, when the defendant has in fact never threatened, and has given the plaintiff no rea- son to suppose that he intends to do it. When circumstances have rendered it necessary to obtain th^ injunction, this is done by motion, in the manner pointed out in the last Section, motions of this kind differing in little or nothing from other motions : as before observed, they may be made at any time that the Judge can be found, and not only 142 MOTIONS. . ^ during the sitting of the Court on motion days, this privilege being given them because it often happens that the necessity is extremely urgent which has driven the plaintiff to apply for this protective writ ; 'a case has occurred in which this aid of the Court was obtained in little more than two hours after the need of it arose. In such a case, there being no time to give notice to the defendant of the intended application for injunction, the usual practice is to grant an " interim order" for an injunction, and to put the plaintiff upon terms, under which he may be compelled to compensate the defendant, if the Court should at the hearing think that the interim order ought not to have been granted. A breach of an interim order is as much a contempt of Court as a breach of an injunction. If the relief sought be granted by the Court uncon- ditionally, the order is simply that an injunction be awarded, restraining the defendant from doing the act mentioned in the notice of motion ; this order is not itself the injunction, but it is the authority to the proper officer to seal the writ, as we shall see directly. It often happens that the Couii; thinks that the plaintiff's complaint may be well founded, but yet sees that it may turn out otherwise, and that in that case the defendant will have suffered wrongfid da- mage by being restrained from the exercise of his right by the hasty order of the Court founded on the imperfect acquaintance with the facts of the case, which can be gathered from the affidavits : and yet the defendant could not recover compensation at law for this wrongful damage, nor is there jurisdiction in MOTIONS. 143 Equity to compel a plaintiff to make compensation to a defendant : in such a case the Court wiU refuse the injunction, except upon the terms of the plaintiff undertaking to abide by such order as the Court may think fit to make at the hearing, as to damages or otherrrise, which submission gives a jurisdiction where without it there would be none. Often also the application stands over to a future time, as until further affidavits have been filed, or until some trial or other proceeding has been had at law, and in these cases the defendant generally is obliged to undertake not to do the act mentioned in the notice, which undertaking differs in nothing but form from an in- junction. It should be remembered that in the case of a Court of Equity refusing to grant an injunction till the plaintiff has established his legal right, the Courts of Equity are now bound to decide any ques- tions of law which require decision before equitable relief can be granted.* As soon as the order has been made that an in- junction be awarded, notice should be served on all parties restrained by it, that the order has been made, and that all proper steps will, without loss of time, be taken to perfect it, and to issue the writ in regular form : if any person do the act in question after the receipt of this notice, or after the order has in any manner come to his knowledge, he will be liable to the same proceedings as if he had dis- obeyed the writ itself, for the Court will not allow a man to do an act before the writ is sealed, which, • See 25 & 26 Vict. c. 42. 144 MOTIONS, if the writ were sealed, would be a contempt of Court. The order for the writ is drawn up, passed, and entered in the manner previously described with respect to a decree. The solicitor for the plaintiff then obtains an office copy of the order, and prepares two copies of the writ itself, one on parchment to be sealed, and the other on paper to be filed: he takes these three documents to the Clerk of Records and Writs, who seals the writ, and files the paper copy, docquet, and order. The writ is then served on each person restrained by it in the usual manner, by showing the original, and leaving a copy. The form of the writ itself will be found in the Appendix, No. XXII. Unless some limitation be made by the terms of the writ itself, an injunction continues in operation for ever ; and if any person disobey the command, the plaintifi".may obtain an order on motion that such person be committed to Whitecross Street Prison for contempt of the order of the Court. Notice of such motion must be personally served on the party to be affected by it. If the person restrained think that the restraint ought not to be continued, he must move to dissolve the injunction, and sjiould not disobey it simply, even though he be advised that for some defect of form the writ is a nullity. If, on the hearing of an injunction suit, the plaintiff sustains his right to the writ, the decree orders that the injunction be made perpetual, after which it cannot be dissolved by motion, but only by some proceeding in the nature of an appeal, which wiU MOTIONS. 145 be treated of hereafter. Motions to dissolve injunc- tions do not call for any particular remark. 2. Receivership. — It often happens that neither^ party in a suit is entitled to the possession of the property concerning which the dispute has arisen, but that pending the suit, the Court ought itself to be in possession : in such cases it is sometimes ordered that the property be brought under the control of the Court, which can be done if it consist of money, stock, or other securities for money, or of plate, jewels, or other such articles : these are paid into or deposited in the Bank of England to the credit of the Paymaster-General : it is common also to order deeds and books of account to be -deposited for safe custody with the Eecord and Writ Clerk.* But if the property be land, or outstanding personal estate, this mode of taking possession by the Court is inap- plicable, and it is in such a case that a Receiver is appointed, who is an indifferent person appointed to be pro hdc vice an officer of the Court for the pur- pose of holding possession : and as such officer he has scarcely any discretion, but must at every step apply for the direction of the Court. We say nothing here as to the cases in which a Receiver will be appointed, which is a question be- longing rather to Equity Jurisprudence than to our present subject. The appointment must generaRy be prayed for by the bill, which asks that a fit and proper person may be appointed to receive and get in the property in question : the application is usually made • See 42nd Cons. Ord. rnle 3. L. H 146 MOTIONS. before decree by motion, although it may be made at chambers when the parties consent, or when the object is merely to supply the place of a Receiver who is dead, or has otherwise become incompetent. The order made on the motion usually directs that a proper person be appointed : in which case the Chief Clerk inquires at chambers as to the fitness of any person proposed to him, and if satisfied as to this, and as to the sufficiency of the proposed sureties, the security is executed and enroUed, and thereupon a certificate is made, stating what has been done: the form of the certificate with many other forms relating to EeceiTers is given in Daniell's Chancery Practice. If any party to the suit wishes to propose himself as Receiver, he must obtain the special leave of the Court. Sometimes, however, the Court is satisfied at the hearing of the motion that a specified person would be a proper Receiver, and in that case he is at once appointed by the order, without the necessity of a reference to chambers. If any person, usually one of the parties to the suit, be willing to perform the duties of Receiver without remuneration,, the Court wUl often appoint him ; and in this case he wiU not. in general be required to give any security. Other- Avise the Receiver is paid either a fixed salary, or a percentage on aU monies passing through his hands : and he is required to give security for the regularity of his accounts and payments in the shape of a re- cognizance by himself and two sureties, given to the Master of the RoUs and the senior Vice-Chan- cellor, conditioned to be void on his being duly MOTIONS. 147 discharged from the office, after having accounted for his receipts at the times named in the order of appointment. Receivers' accounts are periodically brought into chambers, with vouchers, and an affi- davit of correctness, and are passed in the same manner as accounts directed by a decree. When circumstances no longer require the employment of a Receiver, he is discharged by order. For the orders of the Court as to Receivers, see 24th Cons. Ord., and 35th Cons. Ord., rule 23; see also 15 & 16 Vict. c. 86, s. 59. 3. Ne Exeat. — A ne exeat is a writ addressed to the Sheriff of the county in which any defendant in Chancery is resident, commanding him to take bail from the defendant not to quit England without leave of the Court. This writ is granted only on a bill containing a suggestion that the defendant intends to leave England for the purpose of avoiding the equi- table demand of the plaintiff, and must in general be prayed for expressly. It is granted on motion, which will usually be ex parte and supported by affidavits showing that a sum of money is actually due from the defendant to the plaintiff, or will be due on taking accounts between them, and that the defendant in- tends to abscond. The plaintiff's demand must be one enforceable in Equity, though the Court will not refuse the writ merely because the plaintiff might also have a remedy at law for the money. The affidavits must be clear and positive, as the Courts act cautiously in issuing so potent a writ; and in one case Lord Eldon obsen-ed that "the Court ought to feel no inclination to extend the applica- n2 148 MOTION?. tion of the high prerogative writ of ne exeat regno,''' and that " if men wUl not take from their debtors security enabling them to proceed at law, they must abide by the consequences."* The writ is drawn up and sealed in the same manner as a writ for an injunction: when sealed, it is delivered to the Under- Sheriff, by whom it is executed. It may be dis- charged on motion, either on the ground of irregu- larity, or upon merits. 4. Dismissal of Bill. — A Bill of Complaint may be dismissed out of the Court at the application either of the plaintiff or of the defendant. With respect to dismissal at the instance of the plaintiff, we need only observe that it cannot be ob- tained in general, except upon the plaintiff paying to all parties the costs they have incurred : for the plaintiff is presumed to confess that his litigation was unfounded, since otherwise he would not thus bring it to an end, before he had obtained the object of it. Circumstances, however, sometimes arise in which the plaintiff will be allowed to dismiss his bill without costs.f An order for dismissal on payment of costs may be obtained by the plaintiff by motion of course. But the more important species of motions to dis- miss are those made by defendants with the view of expediting the progress of the suit. We have seen that in each proceeding it is generally the duty of the plaintiff to take the initiative, in advancing the • Whitehonse v. Partridge, 3 Swanston, 379. t See Goodday v. Sleigh, 3 W. E. 87. MOTIONS. 149 suit a stage : and although, on the plaintiff's neglect, the defendant may often take the required step in his stead, yet it will often happen that the defen- dant does not wish the step to be taken at all, and ' wants nothing but to be rid of the suit. In such a case, a motion to dismiss for want of prosecution is the defendant's proper coiirse. This motion may be made whenever the plaintiff has omitted to take any step in the suit for a period longer than that fixed for the purpose by the general order* of the Court which specifies the various cases which may arise : it is supported by the certificate of the Clerk of Re- cords and Writs, showing the dates of the various proceedings Vvhich have been taken, and can be an- swered only by the plaintiff taking the required step, and paying to the defendants the costs of the motion. The Court has, of course, jurisdiction in its discretion to refuse the motion, on such terms as seem just, although the mere dates show that the defendant is entitled to his order. It is essential that the defen- dant should be in no default, which rule sometimes renders it necessary for him to take a step for the mere purpose of putting himself into a position to move : as, if after interrogatories have been served, and before an answer has been filed, the plaintiff abandons the suit, but refuses to pay the costs of the defendant ; here an answer must be filed before the payment of the costs can be compelled, for until he has answered the defendant is in default, and is not in a position to move to dismiss. * 33rd Cons. Ord., rules 10, 11, 12, 13, varied by rule 1 of the Order of 22nd November, 1806. 150 MOTIONS. The above remarks apply chiefly to motions to dismiss for want of prosecution : but bills are dismis- sible for other causes, as if the subject-matter of the suit is below the value of ten pounds, when the suit is considered beneath the dignity of the Court. Section 3. Motions of Course. We need not be long detained by the subject of Motions of Course. We have seen that some orders can be obtained only on at least an ex parte state- ment of the merits before one of the Judges of the Court, while others are granted after a hearing be- fore one of the Chief Clerks : in both these cases, a judicial discretion is exercised, as to the advisability of granting what is asked. But there are cases in Vhich a party is entitled of right to a certain order, which therefore he obtains of course, i.e., without any judicial action being called into play, but merely on satisfying the officer that the circumstances are such as entitle him to it : in considering this, the officer acts merely ministerially, and if he refuse to allow the apphcation, the proper course for the ap- plicant to adopt is not to appeal to a higher autho- rity, but to move, before a Judge, that the officer be directed to do the required act. To obtain an order of course by motion, a brief is delivered to counsel, who gets it marked by the re- gistrar in Court, whereupon the order is drawn up, passed, and entered in the usual way: copies are then served on the solicitors of the opposite parties. MOTIONS. 151 If one party in a suit think that another party has improperly obtained an order on a motion of course, he should move before the Judge to whose Court the cause is attached to discharge the order. Orders of course are not so frequently obtained on Motion as on Petition, as we shall see in the Second Section of the following Chapter. ( 152 ) CHAPTER VI. PETITIONS. We have seen at the commencement of the last Chapter, that when an application is to be made of such a character that its nature cannot be shown without a narrative, in addition to the pleadings in the cause, the proper mode of making the appli- cation is by petition. In the First Section of the present Chapter will be described the general nature and form of petitions ; and in the Second we shall say a few words on petitions of course. It is a universal rule that money cannot be paid out of Court on motion: all applications for such payments must therefore be made by petition. Section 1. Petitions in General. When an order is sought which is procurable on petition, the first step to be taken is to prepare the written statement or petition itself. In cases of any importance or complexity this is done by counsel. In the next Part we shall see that petitions are often presented where no suit is pending with re- spect to the subject-matter, and a specimen of such a petition is given in the Appendix, No. XXV. To PETITIONS. 153 this the reader is referred, as sufficiently exhibiting the general form of petitions in causes, which differ from it only in being entitled in the cause, in the same manner as aU other proceedings. Any person, whether a party to the cause or not, may petition in a cause. After the title comes the address of the petitioner, which, if the petition is to be heard before a Vice- Chancellor, is directed to the Lord Chancellor, or to the Master of the RoUs if the petition is to be heard before him ; the body of the petition contains the statement of the matters on which it is founded, put in the same manner as in a bill ; it concludes with a prayer for the specific order sought, or for such other order as the Lord Chancellor or Master of the Rolls (as the case may be) shall think right : all the observations formerly made as to the prayer of a bill apply equally to that of a petition. By the 34th Cons. Ord., r. 1, it is provided that at the foot of every petition (not being a petition of course), shall be placed a statement of the persons, if any, intended to be served therewith ; thus a petition will now show on its face (which was not the case pre- viously) who are the respondents, or persons who may appear at the hearing of the petition, and either oppose or consent to the granting of the prayer. The petition, having been prepared, is copied on paper, and left with the secretary of the Lord Chan- cellor or Master of the Rolls, (as the case may be,) by' whom an indorsement is made on it to the effect that his Lordship, or his Honour, doth order that all par- ties concerned do attend him thereon on the next h5 154 PETITIONS. day of petitions : and that notice is to be given forthwith. The signing of this indorsement by the secretary constitutes what is called answering the petition, which, when answered, is returned to the petitioner's solicitor. The next proceeding is to give notice to the proper parties : these must be chosen by the petitioner at his own risk, as already explained with respect to service of notice of motion : the notice is given by service of a copy of the petition with the indorse- ment, which service must be made in time to leave two clear days before the hearing. The petitioner should in general serve the petition only on those persons who have an interest in its subject-matter ; but sometimes it is necessary to serve persons who have no such interest, but are mere formal parties, who have no reason for appearing at the hearing ; in such cases questions have often arisen whether these parties have a right to make the petitioner pay their costs of appearance, if they think fit to appear : but a rule has recently been laid down that if a peti- tioner on serving the petition on a respondent, the necessity for whose appearance is doubtful, offers him 40«. to enable him to get legal advice in the matter, and the respondent afterwards appears, the Court wiU consider whether his appearance is justifi- able, and will not order his costs of appearance to be paid by the petitioner, unless it be of opinion that such appearance was justified. But if no such offer be made,. the petitioner must pay the respon- dent's costs of appearance.* A copy of the petition * Duggan's Trusts, 8 Law Eep., Eq. 697; Wood v. Boacher, 6 Law Hep., Chanc. App. 77. PETITIONS. 155 is left with the secretary of the Judge by whom it is to be heard. In the paper of business issued before each sit- tings of the Court, certain days are set apart for petitions : on these days, the daily business paper contains the names of all causes and matters in which petitions are to be heard, which are called on in order, in the same manner as causes ; and if the counsel for the petitioner be in attendance, and there be no opposition, the petition is heard, and the order made in the usual way : if counsel be not in attend- ance, or there be opposition, the Court passes on to the next. "When all the unopposed petitions have been taken, the Court passes to those to which there is opposition, and hears them in the same way. When at last the list has been caUed through, and aU matters disposed of in which counsel appear, it is again called through, and the name of each petition is struck out, if no one answers. The costs of petitions are in general regulated by the same ndes as those of motions. There is no peculiarity in the orders made on petition to call for any special notice here. Section 2. Petitions of Course. Petitions are, as we have said, used more commonly than motions for obtaining orders of course : the rea- son is, the greater cheapness and rapidity of the pro- ceedings. Such petitions are generally presented to the Master of the Eolls, though the Judge of each 156 PETITIONS. of the branches of the Court may make orders of course in any cause before any of these branches : and when a petition for an order of course is pre- sented to the Master of the Rolls it does not require to be answered nor heard : but by virtue of a General Order made in 1833, the secretary can at once draw up an order on the petition, which is passed by him, and entered by the under-secretary, without any re- course being had to the Registrar's Office. - Such petitions require no service on any person. If 'an order of course be obtained on petition, and any party wish to set it aside for irregularity, he should apply to the Judge to whose Court the cause is attached. ( 157 ■CHAPTER VIL ON CONTEMPT. By the writ indorsed on the copy of the bill served on each defendant, as the first step in every suit, the Queen orders the defendant, within a limited time, to cause an appearance to be entered for him in the proper office of the Court: and after appearance, the defendant is subject to the orders from time to time made in the cause, and also to the General Orders of the Court, made for the conduct of all suits. The acts which he is required to do by these orders are sometimes merely formal acts, such as entering an appearance or executing a deed ; which, if the de- fendant will not do himself, another person can effec- tually do for him ; sometimes the payment of money, which, if the defendant neglect it, can be enforced by process similar to that in use at Common Law ; and sometimes acts for the performance of which it is absolutely requisite that the defendant should be .per- sonally active, such as the putting in of an answer, where it is clear that no effectual substitute can be found if the defendant absolutely refuse to obey the order : he may be coerced by imprisonment or other- wise, but aU the power of the Court is insufficient to make him state what he knows in answer to the in- terrogatories. 158 ON CONTEMPT. A plaintiff by filing his bill submits to the juris- diction of the Court, as much as the defendant does by a|)pearing. Whenever a party to a suit has allowed the appointed time to elapse without doing some act which he is required to do by any order, he is said to be in contempt, and cannot in general take any step in the cause until he has "purged his contempt," that is, done the act required, and satisfied the party aggrieved for the costs incurred by reason of the con- tempt. Besides this general disability, he is liable to have proceedings taken against him, leading to his imprisonment, or to the loss of his goods and the profits of his lands, according to circumstances. The proceedings differ according to the particular stage of the suit in which they occur ; and it wiU be con- venient to divide this Chapter, not according to the nature of the contempt as explained above, but into the following divisions: (1) contempt by neglect to appear ; (2) by neglect to answer; (3) by neglect to do some other act required. We shall throughout speak of the party in con- tempt as the defendant, and of the party prosecuting the contempt as the plaintiff; but it must be remem-. bered that this language is strictly accurate only in the First and Second Sections : in the cases treated of in the Third Section, the plaintiff may well be the party in contempt, or the proceedings may occasion- ally be taken by one defendant against another. Section 1. Contempt by Neglect to Appear. We have seen that the defendant's appearing is a ON CONTEMPT. 159 purely formal act, and on that account it has been proposed to dispense with it altogether : but on the whole, it appeared to the commissioners whose re- commendations were the foundation of the legislation of 1852, that no great amount of expense, trouble, and delay was caused by its retention, and that its abo- lition would not be advisable. Accordingly, if the defendant neglect to obey the order conveyed by the writ indorsed on the bill, he has incurred a contempt of Court, for which a writ of attachment may be is- sued against him, but it is more usual for the plain- tiff to enter an appearance for him. For this purpose the plaintiff must provide proof by affidavit that the bill, with its indorsement, was duly served on the defendant within the jurisdic- tion of the Court, which affidavit will of course show the day of service ; if the plaintiff take the required step within three weeks* from the date of the service of the bill, nothing is required beyond this affidavit: but on showing it to the Clerk of Records and "Writs he will enter the appearance, after which all the usual steps can be taken, as if the defendant had himself appeared. But if the plaintiff allow the three weeks to elapse without taking the course just pointed out, he must then obtain a special order on a motion ex parte, to entitle him to which he must produce the affidavit of service, and the certificate of the Clerk of Records and Writs that no appearance has been entered: if • lOth Cons. Ord. rule 4, and see rnle 10, which orders "that no attachment for want of appearance shall hereafter be issued, without a special order of the Court." 160 ON CONTEMPT. the order be granted, it is drawn up, passed, and entered in the usual way, and produced to the Record and Writ Clerk, by whom the appearance wiU then be entered. After any considerable delay, the Court win not grant the order, but will require a copy of the biU to be served anew. Section 2. Contempt hy Neglect to Answer. If a defendant neglect to put in an answer, after having been served with interrogatories, the plaintiff may have great difficulty in carrying on his suit : as where it is essential to his case that the defendant should make some disclosure on a subject with regard to which the plaintiff is ignorant. In this case the Court cannot assist the plaintiff further than by de- taining the defendant in custody until his obstinacy is overcome : if the plaintiff require an answer merely for the purpose of obtaining evidence, and not of in- formation, then he may, as hereafter explained, by obtaining an order to take the bill pro confesso, get the same advantage as if the defendant had put in an answer admitting all the allegations of the bill ; but this is a tedious and expensive process : in some few cases the plaintiff thinks he can prove his own case without obtaining an answer, and then he can take a proceeding, called filing a traversing note,* which has the same effect as if the defendant had filed an answer traversing all the allegations of the bill : such cases however are rare. • 13th Cons. Ord. rule 1. ON CONTEMPT. 161 It must be remembered that if a defendant does not put in his answer within the time limited for that purpose, he may obtain an order for further time ; no proceedings in contempt can be begun against the defendant until he has allowed his time to elapse without obtaining such an order for further time. The great instrument used by the Court of Chan- cery for punishing contempts is the writ of attach- ment, which is a letter directed by the Queen to the Sheriff of the county in which the defendant is sup- j)Osed to be, commanding him to attach or take the defendant, and have him in the Court of Chancery on a day named in the writ: on the back of the writ is indorsed, a notification of the particular contempt in respect of which it is issued. The form of the writ win be found in the Appendix, 'No. XXIII. When a plaintiff is in a position to issue an attach- ment for want of an answer, his solicitor prepares the writ, and takes it to the Registrar's Office, together with two prsecipes, or requests to the officer to seal the writ : in the Registrar's Office one of the prsecipes is filed and the other marked ; after which the writ and the marked praecipe, together with an affidavit of the service of the interrogatories, are taken to the Record and Writ Office, where the praecipe is filed and the writ sealed: the writ is then put in the hands of the Under- Sheriff, by whom it is executed. The Sheriff may, if he pleases, liberate the defendant on his giving bail for his appearance at the appointed time. The Sheriff must return the writ by the day named in it, or he will himself become liable to process of 162 ON CONTEMPT. contempt ; this return consists in giving back tlie writ to the plaintiff's solicitor, with an indorsement on the back, signed by or in the name of the Sheriff, and stating what has been the result of his endeavours to obey the order he has received ; this return may be that he has attached the defendant, whose body he has ready, which form is used in case the defendant has been taken and liberated on bail ; or that he has attached the defendant, whose body remains in gaol, when the defendant has been taken and sent to prison, or detained, if already in prison ; or if the Sheriff has been unable to find the defendant, he returns non est inventus. These are the most usual returns, but under special circumstances others may be made. We have said that if the Sheriff neglect to return a writ he is liable to committal, and he wiU. also be committed if the return be insufiicient : if, however, he make some return, the plaintiff cannot question its truth, however false it may be ; but his remedy is to sue the Sheriff at law for a Mse return, or for an escape or otherwise, as the case may require. In a case where the Sheriff returned facts which amounted to an escape, the Judge did not direct the party aggrieved to bring an action, but referred it to chambers to ascertain the loss due to the es- cape, and ordered the Sheriff to pay the amount certified. If the return show that the defendant has been taken, and is forthcoming, whether he be actually in custody or have been liberated on bail, the next thing is to bring him personally before the Court : when the return shows that the defendant is out of ON CONTEMPT. 163 ciistody on bail, the plaintiff obtains an order, by motion of course, for the messenger to bring up the defendant to the bar of the Court, which is done accordingly by the proper officer: if, however, the defendant be actually in custody, the motion is for a habeas corpus, directed to the keeper of the prison in which he is confined, requiring him to bring up the defendant: this must be done either within thirty days of the original arrest or detainer, or within ten days of the arrest by the messenger : and if this time be allowed to elapse, the defendant will be discharged, without paying the costs of his contempt, and he is allowed eight days before a new attachment can issue against him. When the defendant is brought to the bar of the Court, which is understood to mean the personal presence of a Judge, he is questioned as to the reason of his refiising to answer ; and in case he allege and prove such poverty as disables him from obtaining professional assistance, a solicitor and counsel are assigned him, as hereafter explained with reference to paupers: if, however, he do not show any valid reason for his neglect, he is committed to the White- cross Street Prison, to the officer of which he is delivered by the person by whom he is bro^ight up. Such is the procedure by which a defendant, having been taken by the Sheriff, is committed to perma- nent custody: the plaintiff may thereupon proceed to have the bill taken pro confesso* against the de- fendant, as he may also do if the return be non est • 22nd Cona. Ord. 164 ON CONTEMPT. inventus: there is, however, another course which he may adopt on this latter return. On the production of the attachment with this return, together with an affidavit of due diligence having been used to execute the attachment, the plaintiff is entitled to a writ of sequestration:* but inasmuch as this process is more particularly appropriated to the enforcing obedience to decrees, an account of it will be reserved to the next Section. The course usually adopted when the defendant has been committed to the Whitecross Street Prison, or has absconded, to avoid putting in an answer, is to obtain an order to take the \yS\.pro confesso. With a view to this the defendant may, if in prison, be brought up by the keeper : for which purpose a habeas corpus must be issued on an order obtained by motion of course, grounded on the certificp^te of the keeper that he has the defendant in his custody: or the plaintiff may serve on the defendant, within three weeks of the execution of the attachment, a notice of motion to take the bill pro confesso, which motion must not be made till three weeks after the notice : in either case such an order will be obtained, as wiU be mentioned hereafter. If the defendant have ab- sconded, or escaped, being taken on the attachment or by the serjeant-at-arms, a notice of motion must be served at the defendant's address for service, if he have appeared ; or if the plaintiff have entered an appearance for him, then it must be advertised in the " London Gazette" and other newspapers. This • 12th Cons. Orel, rale 6. ON CONTEMPT. 165 notice will be sufficient ground for a motion for an order to take the bill as confessed, which must in this case be supported by the production of the attach- ment with its return, and by an affidavit showing that there was reason to believe that the defendant would be found in the county in which the writ was issued, and that due diligence was used in endeavour- ing to execute the writ.' The ejffect of the order being made is that, on the hearing of the cause, the Court assiimes the truth of all the allegations of the bill, as if their truth had been admitted by the defaulting defendant: that is to say, the bill may be read by the plaintiff as against that particular defendant, but of course the other de- iendants are unaflected by the default, and the order made in consequence of it, and against them the cause is heard in the usual way. If there be but one defendant, the Court will sometimes appoint a special day for the hearing : but otherwise, the cause must be set down, and come on to be heard in the regular way. At the hearing the Eecord and Writ Clerk attends with the record of the bill, which is thus part of the plaintiff's evidence. A decree made on a bill taken pro confesso is not absolute in the first instance, unless the defendant appear at the hearing, as he may do, and argue the case on the merits. Otherwise, an office copy of the decree must be served at the defendant's address for service, if any : or if he have not himself appeared, then upon himself personally, if he can be found: and the plaintiff may apply to have the decree made abso- lute, after the expiration of three weeks from such 166 ON CONTEJn?T. service, or if the defendant be out of the jurisdiction, then after such other time as the Court may appoint: but in case the plaintiff have not been able to effect service, then three years must elapse before he can have the decree made absolute ; at any time in the interval the defendant m^ay put in an answer, and have the case heard on the merits. If it appear to the Court' that justice will not be done to the plaintiff by merely taking the bill pro confesso, the Court may appoint a Receiver of the real and personal estate of the defendant, or may direct a sequestration of such estate to be issued, and may order payment out of such estate to the plaintiff of such sum of money as the plaintiff shall appear to be entitled to. Such then is the procedure adopted where the de- fendant I'efuses to answer the interrogatories. It is seldom that the plaintiff can dispense with this an- swer, for otherwise he would not have required it': but if he think that he can himself prove his case, he may save great expense and delay by filing what is called a traversing note.* This may be done as soon as the defendant's time to answer has expired. The note is a pleading put in by the plaintiff on behalf of the defendant, and its effect is simply to deny the statements of the bill, and to put the plaintiff to the proof of the whole. It is engrossed on parchment, and will be filed by the Clerk of Records and Writs, on the production to him of an affidavit of service of the interrogatories. A copy of the note must then be served on the defendant, in manner directed by the • ISth Cons. Ord. rule 1. ON CONTEMPT. 1-67 4tli and 6th rules of the 3rd ConsoHdated Order, for the service of documents not requiring personal ser- vice, after which e^-idence can be gone into, and the suit can proceed in the usual way. Section 3. Non-performance of Decrees and Orders. The decrees and orders of the Court command the defendant either to pay money ; or to do some other positive act, as to execute a conveyance or other deed, to bring in an account, t6 deliver up possession of land or property, or the Hke ; or to abstain from doing some act, as is usually ordered by injunctions, whether granted by order on an interlocutory application, or by decree at the hearing. The assistance given by the Court against an obstinate and defaulting defend- ant varies with the nature of the act required to be done by him. Previously to the year 1839, the process for en- forcing obedience to the decrees and orders of the Court of Chancery was foimded on contempt alone, and was carried into effect by attachment or seques- tration ; but by the combined operation of sect. 18 of 1 & 2 Vict. c. 110 (which places all persons to whom any money or costs have been ordered to be paid by decree or order in Equity in the position of judgment creditors), and of the orders* made in pursuance of sect. 20 of the same Act, such persons may, after the expiration of one month from the time of passing and entering the decree or order, sue out a writ of * 29th Cons. Ord. rules 6-10, and Schedules F and G to the Orders. 168 ON CONTKMPT. fieri facias or of elegit against the goods or lands of the defaulter. These writs are in form similar to those in use at common law; the Sheriff, on re- ceiving the writ, wiU levy the sum named therein, in the usual manner. The person in whose favour the dtder is made may have the benefit of the above process, though he be not a party to the suit in which the order was made ;* nor is any demand of the money or costs required before issuing process, f It must be borne in mind that the above writs are in addition to, not in substitution for, the ordinary remedies by attachment and sequestration ; and more- over that they are only obtainable in cases where the decree or order directs payment of money; in other cases the doing of the act directed by the decree or order must be enforced by the ordinary remedies. If the person in whose favour a decree or order in Chancery is made for payment of money, wishes to complete his right as a judgment creditor, he must register such decree or order, under sect. 19 of 1 & 2 Vict. c. 110. If the defendant be required to deliver up pos- session of lands, and refuse to do so after service of the decree upon him, an order may be obtained on motion for a writ of assistance: by this writ the Sheriff is commanded to eject the defendant and to put the plaintiflf in possession, and it is executed in the same manner as a writ oi habere facias possessionem is executed in fiivour of a successful plaintiff in the common law action of ejectment. This writ wiU also * 29th Cons. Ord. rule 2. t 29th Cons. Ord. rale 1. OK CONTEMPT. 169 be granted to put into possession a Receiver or Se- questrator.* The execution of a deed or conveyance is required by the Court, when it appears that the plaintiff has an equitable claim to property, the legal estate or title to which is in the defendant: that is to say, where in fact the defendant is a trustee for the plain- tiff. The appropriate means of passing this legal title is a deed; and untU. the year 1830, a defendant could, if he chose to lie in prison, or to submit to have his property sequestered, by his obstinacy defeat the plain- tiff of his rights, although the act required was merely formal. This defect was remedied in the year just mentioned by a statute passed at the instance of Sir Edward Sugden:f and now the Trustee Act of 1852| furnishes a ready means of proceeding in such cases. In aU these cases, the plaintiff gets substantial as- sistance from the Court, in the pursuit of his right : a large number of acts, however, still remain which are frequently required by decrees, but towards the performance of which no process of execution is effec- tual, such for instance as the putting in of accounts, or the delivering up of specific chattels or deeds. Here all that can be done is to confine the defen- dant's person in gaol, in case he can be found : and to deprive him of all his pr&periy within the juris- diction of the Court. The decree of order must be • Seton on Decrees, 1229. f 1 Will. 4, c. 36. Under this statute the Court was empowered to order one of the Masters to execute the deed for the defendant. J 15 & 16 Vict. e. 55, s. 2 ; and see Wellcsley v. Wellesley, i De G., M. & G. 537. L. I 170 ON CONTEMPT. personally served on the defendant, with the indorse- ment stating the consequences of disobedience (Ap- pendix No. XVI.), after which* a writ of attachment may be had, as -explained in the last Section. If the contempt be the breach of an injunction, the course is, as has been before stated, to move, afler personal service of notice, that the defendant may stand com- mitted : this order, if granted, is executed by the messenger of the Court, and the defendant is ulti- mately committed to Whitecross Street Prison, as on an attachment. By some one of these processed, the defendant is lodged in prison, and will not be discharged until he has purged his contempt, by doing the act required, and paying the costs which his refusal has occasioned the plaintiff, "whereupon an order for his discharge may be obtained on motion or petition of course. A sequestration is a process by which a person is deprived of the use and enjoyment of aU his property within the jurisdiction of the Court. It consists of a writ directed to commissioners, usually four in number, commanding them to enter the lands and seize the goods of the delinquent. An order ob- tained on motion of course is required before this writ can issue :t it is sealed by the Eecord and Writ Clerk, and dehvered to the sequestrators, by whom it is executed. , The sequestrators are oflScers of the Court, and bound to account for whatever comes to their hands by virtue of their office, while any person resisting • 29th Cons. Ord. rule 1. See also rule 6 of order of 7tli January, 1870 ; 5 Law Eep., Chanc. App. xxxiii. t See now rule ,3 of order of 7th January, 1870. ON CONTEMPT. 171 them in the execution of their duty becomes guilty of a contempt of Court. The money or other property which they bring into Court is not parted with, at least until the defendant has cleared his contempt : and if justice seem to require it, the Court will retain this money as security to the plaintiff for what may be coming to him from the defendant on the result of the whole suit. Beyond imprisonment and sequestration, the Court can do nothing: these constitute the last steps in the process of contempt. It should be observed that an attachment for non- performance of a decree is not, like an attachment for non-appearance, or for default in answering, a process in which bail can be taken ; but the party attached must be imprisoned. Formerly, it was the duty of the Masters of the Court to visit the prison at stated periods, and examine the prisoners confined there for contempt of Court, but now, by a recent statute,* this duty is transferred from the masters to the soli- citor to the suitors' ftmd, who is to visit the prison four times a year, and make a report to the Lord Chancellor of the cases of the prisoners, whereupon the Lord Chancellor may, if he thinks fit, assign a solicitor to any prisoner, to defend him in forma pauperis, and to take such steps on his behalf as may be requisite. It must be remembered that since " The Debtors Act, 1869,"f no person can (except in a few cases) * 23 & 24 Vict. c. 149. t 32 & 33 Vict. c. 62. See also Sykes v. Dyson, 21 Law Times, N. S. 696; Ee Knsh, ih. 692, and the order of Tth January, 1870. I2 172 ON CONTEMPT. be imprisoned for debt; if, therefore, a decree or order simply directs payment of money or costs, it can be enforced by sequestration alone. If, however, the non-payment of such money or costs constitutes a default under any of the exceptions in the fourth section of the act, the decree may be enforced either by sequestration or attachment ; but unless the decree states that the payment may be enforced by attach- ment, no attachment wiU be issued without leave of the Court, to be applied for by ex ■parte motion or summons, unless the Court requires notice of the application to be served. ( 173 ) CHAPTER VIII. SUITS BY AND AGAINST PAETICULAE PERSONS. In all that has hitherto been said concerning the con- duct of a suit in Equity, it has been assumed that the parties to it were men and women of fiill age, re- siding within the jurisdiction of the Court, and not imder any legal disability. This, however, is fre- quently not the case, so that particular proceedings often become necessary, to describe which is the object of the present Chapter. And first, this seems the fittest place to notice one or two peculiarities affecting Peers who may be parties to a suit in Equity. When process of con- tempt has to be taken against a Peer, it is confined to a sequestration, as no process affecting his per- son can be executed without a breach of the privi- leges of the House of Lords : moreover, a Peer puts in his answer upon protestation of honour, and not upon oath or affirmation. A Peer is, however, sworn to affidavits, and on other occasions when he has to give testimony. In the case of corporations aggregate, the nature of the case renders it impossible to execute any personal process, and it is by sequestration alone that obedi- ence to any order can be enforced. Service of docu- ments on a corporation is effected by serving them in the ordinary manner on any member, and the 174 SUITS BY AND AGAINST answer of the corporation is put in under the common seal. It is sometimes allowed to make an officer of the corporation a party to the suit, for the mere pur- pose of getting from him the discovery required. It should be observed that by various statutes passed with reference to public Companies (such as the Lands Clauses Consolidation Act, the Railway Clauses Consolidation Act, and the Joint Stock Companies Acts), provisions are expressly made as to the mode of eifecting service of summonses, writs, and other proceedings upon the Company.* When any person who would ordinarily be a ne- cessary party to a suit is not within the jurisdiction, the plaintiff wiU be excused from bringing him before the Court ; in such cases, the practice is to name the defendant in the bill with a note follow- • ing his name to the effect that he is out of the juris- diction : or to introduce into the biU a statement that he is so, which will save the biU from being demurrable for want of parties. The jurisdiction of the Court extends only to England and Wales. The disabilities of which we must treat in the present Chapter as affecting the proceedings in suits, arise from want of discretion or defect of un- derstanding, owing to infancy or lunacy: or from the want of a free will in a married woman : or from the poverty of the party, which disables him from meeting the expenses necessarily incurred in the prosecution and defence of a suit. We shaU there- • See also 7 Geo. 4, c. 46, providing that Banking Companies carrying on business under the Act, may sue and be sued in the name of one of their public officers. PARTICULAR PERSONS. 175 fore in four Sections state the course to be taken in the case of (1) infants, (2) lunatics, (3) married women, and (4) paupers. Section 1. Infants. The want of discretion which the law attributes to infants, and their inability to make themselves liable for the costs of a suit, give rise to various peculiarities where any ■ party to a suit is under twenty-one years of age. 1. First, when an infant is plaintiff. — An infant cannot institute a suit alone, but must do so under the protection of an adult, who will be answerable for the conduct and for the costs of the suit. This adult is in theory the nearest relation who has no interest contrary to that of the infant ; but prac- tically any person, even a mere stranger, may be named as next friend, and the suit may be carried on without the knowledge of those who have the care of the infant. In such a case, however, the Court win, if desired, direct an inquiry whether the suit is beneficial, and will stay aU proceedings in the meantime.* In order that the defendants may know where to resort in case the plaintiff in an infant's suit be ordered to pay costs to them, it is required that the name and residence of the next friend should appear on the bill, in the same manner as that of the plain- tiff himself does in an ordinary case. The address ♦ Towsey v. Groves, 11 W. R. 252. 176 SUITS BY AND AGAINST of an infant's bill will therefore run as follows : — " Humbly complaining, sbowetb unto his Lordship A. B. (an infant under the age of twenty-one years) by C. B. of etc. his father and next friend, the above-named plaintiff, as follows." The name of the next friend is always mentioned in the title of the cause, but does not (as such) occur elsewhere in the pleadings or other proceedings. A written authority signed by the next friend must be produced before a biU can be filed on be- half of an infant, and must be filed with the bill : this is required by the Jurisdiction Act,* and pre- vents the recurrence of such hardship, as was caused in a case where a person had been named as next friend of an infant, of whose very existence he had no knowledge : the bill being dismissed with costs, the first thing the next friend knew of the suit was the defendant's demand for his costs : these he was obliged to pay, it being considered that the defendant ought not to suffer, and that the next friend might have an action against the solicitor, who had so im- properly used his name. If a bin be filed in the name of a married woman by a next friend, or any person is named a relator in an information,! a similar authority is required to be signed by the next friend or relator. If a next friend wish to retire in the course of a suit, he must generally give security for the costs already incurred, and the Court must be satisfied of * 15 & 16 Vict. c. 86, s. 11. t See Part I., Chap. I. PAETICTJLAR PERSONS. 177 the respectability of the person proposed as the new next friend. The Court will remove a next friend if it appear to the Court that his continuance will be detrimental to the infant.* When an infant plaintiff comes of age in the com-se of a suit, he may abandon it and have the bill dismissed with costs to be paid by the next friend ; or he may adopt and continue it, in which case he becomes liable for the costs ah initio. It sometimes happens that two or more suits are instituted on behalf of the same infant with respect to the same matter : in such cases, an inquiry is made as to which of the suits is most for the benefit of the infant, and such one is alone allowed to pro- ceed. We shall see in the next Part that the sanc- tion of the Court can be obtained without bill to arrangements as to the guardianship and mainten- ance of infants. 2. Infant defendants. — When a biU is filed against an infant, he is served with it in the ordinary way : but substituted service will often be allowed on the parent or other person having the charge of the in- fant. - Na step can be taken by or on behalf of the infant in the defence to the suit, until some person has been appointed to be guardian, ad litem, i. e. for the purposes of the defence. It is the duty ordi- narily of the friends of the infant to procure the ap- pointment of such a guardian, which is done by an order obtained on motion or petition of course, sup- • Saudford v. Sandford, 11 W. R. 336. I5 178 SUITS BY AND AGAINST ported by an affidavit that the proposed guardian is a fit person, and has no interest adverse to the infant in the subject of the suit, the production of the in- fant being dispensed with. Formerly, except where the infant was of very tender years, or was resident beyond twenty miles fi-om London (in which case a guardian was assigned by commission), the infant's personal appearance was required, to show that the proposed guardian had the actual control of the in- fant's person, and was not a mere volunteer. If the friends of the infant take no steps towards appointing a guardian, the plaintiff may apply that one of the solicitors of the Court may be appointed to appear and answer on behalf of the defendant.* When a guardian has been appointed, he appears on behalf of the infant, and takes aU the other usual steps. The answer put in on behalf of an infant is usually in a fixed form, stating the infancy, and sub- mitting the rights and interests of the infe,nt to the Court : and even if the answer do contain admissions of parts of the plaintiff's case, these cannot be read against the infant, nor do they in any degree reHeve the plaintiff from the necessity of strictly proving the whole of his case. The infant's answer may, if it be thought advisable, state any new matter, which may be to his advantage to bring before the Court. Of course this answer cannot be excepted to ; in fact, no discovery can be required from an infant : the answer is put in on the oath of the guardian. If the • 7th Cons. Ord. rule 3. PAETICTJLAE PEESONS. 179 infant, though, not a party to the suit, have been served with notice of the decree, a guardian ad litem must be appointed to represent him in the subsequent proceedings. Such appointment will be made in the same manner as the appointment of a guardian to appear and answer.* An infant defendant is not bound by a decree in the first instance (unless made by consent), but the decree is made nisi, and the infant may, on coming of age, put in a new answer, and make a defence, but if he do not, within six months after coming of age, show sufficient cause against the decree, it will be made absolute. '\ Section 2. Lunatics. When circumstances make it necessaryfor a lunatic or idiot to institute a suit in Chancery, his committee should obtain the sanction of the Lord Chancellor, or other person to whom the care of lunatics is entrusted by the Crown, and then a bill is filed in the name of the idiot or lunatic by his committee, who is liable for the conduct and costs of the suit in the same manner as the next friend of an infant : and if the plaintiff, without being idiot or lunatic, is neverthe- less imbecile, and not of discretion to commence pro- ceedings, it has been held that he may file his bill by a next friend.| If, after a bill has been filed, the plaintiff falls, through age or otherwise, into a state • Tth Cons. Ord. rule 6. ■f See Seton on Decrees, 685. X Light V. Light, 25 Bea. 250. 180 SUITS BT ANT) AGAINST of imbecility, this is no ground for taking the bill off the file. There is a practical distinction between persons who have been found lunatics by inquisition, and persons who have not been so found : in the former case aU applications must be made to the Lord Chancellor, or the Lords Justices ; in the latter case the Vice-Chancellors and Master of the Rolls wiU sometimes entertain applications : thus if it be neces- sary to appoint a guardian to defend a suit on behalf of an imbecile person not found a lunatic by inquisi- tion,* or if it be necessary to deal with any fund which is standing to the credit of such a person in a cause,t the proper Court to apply to is that of the Judge before whom the suit is pending. A lunatic who has been found such by inquisition, when made defendant to a suit, should appear and defend by his committee, who, if he have no interest adverse to the lunatic, will be as a matter of course appointed guardian ad litem : and if there be no committee, the defendant not. having been found a lunatic by inquisition, the defendant's friends may obtain an order for a guardian to be appointed, as they may also do if the committee have an adverse interest to the lunatic; in such case the committee must be made a co-defendant. If the defendant's friends take no steps, the plaintiff may obtain the order. | The suit is conducted in the usual manner, except • Piddoct f. Bonlbee, 1 W. R. 94. -I- Davies v. Davies, 2 De G. M. & G. 51; Re Irby, 17 Bea. 33t; Ee Berry, 13 Bea. 455. See also Re Burke, 8 W. E. 534. J 7th Cons. Ord; rule 3; Bonficld v. Grant, 11 W. R. 275. PAETICULAE PEESONS, 1 8 1 SO far as the lunatic's incapacity to do any personal act makes a difference. Thus, no discovery can be had from him, nor any process of contempt «xecuted against his person or property. Section 3. Married Women. Married women are in some respects looked upon as under the same incapacities as infants and lunatics, with respect to the conduct of suits in which they are interested: for a married woman is as incapable of binding herself for the payment of costs as an infant, and any joint act of hers and her husband's is consi- dered as the act of the latter only, on account of the influence which he is supposed to have over his wife. From these principles has arisen the general rule that the husband must be joined with the wife as a party, whether as plaintiff or defendant : if however the hus- band be banished from, or have abjured, the realm, or if the wife have obtained an order for protection of her property under the Divorce and Matrimonial Causes Act,* or if a decree for judicial separation have been made under the same Act, she may sue and be sued alone. In those cases where the wife appears as plaintiff, and has an interest conflicting with that of her hus- band, as when she seeks to establish her exclusive right to her separate property, or to her equity to a settlement, there she must file her bill by her next • 20 &21 Vict. c. 85, ss. 21 and 26 ; and see 21 & 22 Vict. c. 108, 8.7. 182 SUITS BY AND AGAINST friend, making her husband a defendant. No next friend can be appointed without her consent. The office, duties and liabilities of the next friend of a married woman are the same as in the case of an infant. When the husband and wife are joined as defend- ants, they usually appear by the same solicitor, and put in but one answer : if, however, the wife wish it, she may obtain an order to answer separately, and set up a defence distinct from that adopted by her hus- band, in which case she will be liable to the ordinary process of contempt if she neglects to answer. If the husband, having been made defendant to a suit respecting the wife's separate property, be out of the jurisdiction of the Court, the plaintiiF may compel the wife to answer.* If the husband and wife be co-defendants, and the wife, having obtained no order to answer separately, neglect to appear or to answer in due time, process of contempt vrill issue against the husband ; and to relieve himself, he must make it appear to the Court that he cannot prevail on his wife to do the act required: on this, an order ^vill be made that the wife appear, or answer, separately, and thereupon she will be liable to aU the ordinary process of .con- tempt, f Ka married woman present a petition to the Court, she must do so through the medium of a next friend, even though the petition have reference to her se- parate property; and her husband must be either * Dabois v. Hole, 2 Vernon, 613. t See Hope v. Carnegie, 7 Law Rep., Eq. 254. PARTICULAR PEESONS. 183 a co-petitioner, or a respondent. If, however, she has obtained an order for protection under the Divorce and Matrimonial Causes Act, she may, it seems, petition without a next jfriend.* This section would be incomplete without noticing a recent important statute called " The Married Women's Property Act, 1870," f which considerably widens the area of a married woman's separate pro- perty, and brings within that area many things which previously the husband might have claimed, such as wages and other money acquired by her in her separate trading or employment, or through her own literary, artistic, or scientific skill, monies be- longing to her in the funds, or in any company or society, personal estate devolving upon her through .an intestacy, money (not exceeding £200) given to her by deed or will, and rents of real estate descended to her as heiress-at-law, and the Act provides (sect. 9), that in any question between husband and wife as to property declared by the Act to be separate pro- perty of the wife, either party may apply by summons or motion in a summary way to the Court of Chan- cery or to a County Court, and (sect. 11) the wife is to have the same remedies, both civU and criminal, for the protection of property which under the Act becomes her separate estate, as if such property belonged to her as an unmarried woman. It would seem probable that an application by a married woman to the Court of Chancery under the Act may be made without a next friend, but the Act is * Ee Rainsdon, 5 Jur., N. S. 55. t 33 & 34 Vict. c. 93. 184 SUITS BY AND AGAINST silent on the point. Of course the Act does not interfere with any settlement of a married woman's separate estate. Section 4. Paupers. The ordinary course of proceeding in a suit in- volves the payment of money at every step : nothing can be done by a party without incurring expense, both in compensating his solicitor, without whose aid it is practically impossible to conduct a suit, and in payment of certain fees required by the rules of the Court, as we" shall see more particularly in the Tenth Chapter. Care is taken that these expenses should, as far as possible, be ultimately borne by the party through whose fault the litigation has become neces- sary: but years often elapse before this payment can be enforced by the succesgftd suitor, and in the mean- time he has been obliged to advance a large sum, which he possibly may be ill able to spare. Poverty thus becomes a most serious obstacle to success in a Chancery suit, and in fact often compels a person having a most righteous claim to forego it altogether, or to submit to some inequitable compromise. That this should be so to some extent is unavoidable from the nature of the case : and a great amount of vexa- tious litigation is undoubtedly prevented by the ex- penses necessary to carry it on ; so that perhaps, on the whole, the interests of society are better pro- moted by the present system, than they would be by one which, while under it fewer cases occurred of hardship and injustice, yet exposed every one PABTICtTLAR PERSONS. 185 to the risk of having to defend himself against un- founded claims brought by persons who, having no- thing to lose in case of defeat, hoped to succeed in extorting something from their victim, by way of compromise. However this may be, the rules of the Court make some provision for cases where the parties are poor,* and these we wiU now proceed to consider. A person who wishes to obtain the assistance of the Court vnthout the usual expense, must present a petition to the Master of the Rolls, setting forth the natiire of his case, and praying to be admitted to sue in forma pauperis, and that a soHcitor and counsel may be assigned him : to this petition is annexed a certificate of counsel, that the party has just cause to be reheved, and an affidavit by the party himself that he is not worth five pounds in the world, ex- cept his wearing apparel and the matters in question in the cause. On this petition, the Master of the Rolls grants his fiat, and an order is drawn up in the usual way, according to the prayer of the peti- tion. So also if a person wish to defend a suit in forma pauperis, he may, immediately on the biU being filed, and without entering an appearance, present a petition at the Rolls for an order so to defend, supported by a similar affidavit. The consequence of this order is, that no fees are payable to any counsel or solicitor for any business done in the suit on behalf of the pauper, nor does he pay the Court fees usually required on each • 7th Cons. Ord. rules 8—11. 186 SUITS BY AND AGAINST PARTICULAR PERSONS. proceeding : if Jiowever, in the course of the suit he become of such ability that he ought not to continue to sue or defend in forma pauperis, an order may be made " dispaupering " him. In our Chapter on Contempt we hare seen in what manner a defendant is allowed an opportunity of alleging poverty as a reason for not. putting in an answer, and that on his proving the allegation, a solicitor and counsel wUl be assigned to him. ( 187 ) CHAPTER IX. ON APPEAL. In this Chapter we propose to consider the course adopted by a party who considers himself aggrieved by any decree or order of the Court, and the means provided for enabling him to have it set right. It is chiefly with reference to this subject that it is im- portant to consider whether or not the decree or order in question has been signed and enrolled ; for the tribunals which are competent to correct it when unenrolled have no jurisdiction over the enrolment, so that recourse must be had to another tribunal. The proceeding in use to correct an unenrolled order or decree is more properly termed a rehearing than an appeal : it consists in having the matter re- heard, either in full or on some one point, and either by the Judge whose decision is in question, or by the Judges of the Court of Appeal : after enrolment, the party must either bring a fresh bill, which is called a bill of review, or he must appeal to the House of Lords. An appeal to the Lords is commenced by a petition, setting forth shortly the proceedings in the suit, in- cluding the decree and the fact of its enrolment, and praying their Lordships to reverse the decree : to this is annexed a certificate signed by two of the counsel in the cause, that the petitioner has reasonable ground 188 ON APPEAL. of appeal ; on this petition an order is made for the setting down the appeal, and that the respondents answer. This order is served on aU the other par- ties to the suit, even though they have no interest in the point in question. Hereupon the parties prepare their cases, or detailed accounts of the proceedings and. of the point to be raised on the appeal, with their reasons for hoping that the decree will be re- versed, or affirmed, as the case may be. To these cases are annexed appendices, containing copies of the pleadings, decree, and all documents on which anything turns in the appeal ; the appellants and re- spondents frequently join in preparing one appendix only. Copies of these cases and appendices are de- livered for the use of their Lordships. The appeal comes on for argument in its turn, usually in the session next after that in which the petition was presented : it is argued by two counsel for each party, and the Chancellor or other presiding Law Lord moves that the decree be affirmed, varied, or reversed as he thinks ought to be done : on this motion the other Law Lords deliver their opinions, and vote : the order made by the House is trans- mitted to the Court of Chancery, and there acted on. The other mode of varying an enrolled decree is by Bin of Review,* which is a biU stating the proceed- ings in the former suit, and pointing out the mistake alleged in the decree ; and praying that it may be corrected: if this mistake be error of law, the regular mode of defence to the BiU of Review is by demurrer, * 31st Cons. Ord. rules 9—14. ON APPEAL. 189 on whicli of coiirse the only question is whether the statements on the Bill show any reason for granting the prayer^ which question is identical with the ques- tion whether the decree were erroneous : of course, on the demurrer, the defendant does not admit the allegation that the decree was erroneous, which is no statement of fact, but merely of law, which, as we have already seen, it is open to a defendant to dispute on the hearing of a demurrer. If the Bill of Eeview allege error of fact, the de- fendant appears and answers, and the other proceed- ings are taken which we have described in the case of an ordinary suit. The right to obtain the reversal of a decree by a bill of review is restrained by the rule that it must be grounded on the discovery of new matter of fact, which could not have been given in evidence at the original hearing,* or else on error of law apparent on the face of the decree. In the former case the leave of the Court is necessary before the bOl can be filed ; in the latter no such leave is required, but it is a case which can hardly arise under the present practice, as decrees now contain no recitals of the pleadings or other proceedings, and therefore it is scarcely possible that any error of law should appear on the face of the decree. The nature of a rehearing before the Judge to whose decree an objection is taken will be easily understood after the perusal of the following obser- vations ■ on rehearings before the Court of Appeal, concerning -which we must enter a little into detail. * Thomas v. Eawlings, 11 Law Times, N. S. 721. 190 ON APPEAL. The Judges of the Court of Appeal are the Lord Chancellor and the two Lords Justices,* who may sit all together: or may form two Courts, the Chan- cellor sitting alone in one, and the two Lords Jus- tices in the other : this latter is the course usually adopted, unless an application be made that some particidar appeal be heard before the full Court : the Court has power (as mentioned in a former Chapter) in a fit case to call in the assistance of a Common Law Judge. By two recent statutes all the juris- diction of the Judges of the Appeal Court (except the right to rehear decrees made on the hearing of a cause, or of a motion for decree, or on further con- sideration), may be exercised by either of the Lords Justices sitting alone, f Any person, whether party to the cause or not, who is aggrieved by any order or decree of the Master of the RoUs or of any of the Vice- Chancellors, may bring it before the Court of Appeal : the only ex- ceptions to this rule are in the case of orders made in the exercise of a discretion vested' in an inferior Judge, for it is not allowed to appeal from the dis- cretion of one Judge to that of another : as an illus- tration of this an appeal will not, as a general rule, be allowed on a question of costs only, which are in most eases a subject for the discretion of the Judge ; there are, however, several exceptions to the rule ; thus, if an appeal be brought on two points, one of which affects the costs only, and the decree be adjudged right on the other point, it" may neve^rtheless be » U & 15 Vict. c. 83, a. 8. t See 30 & 31 Vict. c. 64; 31 & 32 Viet. c. 11. ON APPEAL. 191 varied on tte »point of costs:* an appeal is also allowed on the question of costs where some principle is involved in the mode of dealing with them,| and it is allowed to appeal from so much of a decree as directs payment of costs out of a fund in Court.f If a decree or order is made by consent, no appeal is allowed from it. An appeal from a decree in a suit, or from an order made on a petition, is commenced by a petition of appeal presented to the Lord Chancellor, setting forth the decree or order complained of, and that the appellant is aggrieved by it : if any subsequent pro- .- ceedings have been had under the decree or order they should be stated, but it is not usual to state any reasons of appeal. To this petition is appended a certificate signed by two counsel, that they conceive that the cause or matter is proper to be reheard. On the faith of this certificate the prayer of the petition is usually granted, as a matter of course ; the petition is left with the Secretary to the Lord Chancellor, who procures his Lordship's fiat to it, directing that on payment of the deposit, which is to some extent a guarantee against vexatious appeals, the appeal be set down. An undertaking to pay the costs adjudged is then appended to the petition, and signed by the petitioner or his solicitor, after which the petition is taken to the senior registrar, and twenty pounds " Lewis V. Smith, 1 Mac. & Gor. 417 ; Morgan & Dayey on Costs, 106. t Chappell V. Gregory, 2 De G., J. & S. 111. I Jenour v. Jenour, 10 Ves. 562 ; Taylor v. Topham, 15 Ves. 78; Taylor v. Dowlen, 4 Law Kep., Ch. Ap. 697. 192 ON APPEAL. deposit .paid to Mm;* the petition is then filed at the Report OfEce,t and the order to set down the appeal is passed and entered, and served on all the respon- dents, i.e., all parties whose interest is in any way affected by the appeal, whpse uames must be given in a foot note to the petition.^ It may be mentioned that where only one counsel has been engaged in the Court below, the petition of appeal may be set down on a certificate signed by him alone. § Special leave is required for the setting down an appeal after more than five years from the date of the .decree or order complained of.|| The setting down an appeal is hot generally allowed to interfere with the progress of the suit,ir but in a proper case all proceed-, ings under the decree will be stayed pending the appeal. The appeal comes on to be heard in regular course : the rule was formerly that the appellant was entitled to begin, unless the appeal were brought from the whole of the decree or order, when the plaintiff began, and the hearing was in aU. respects similar to that in the Court below. Now, however, the Lord Chan- cellor and Lords Justices have determined that the appellant shall begin in aU cases.** The same evi- dence may be used as was or might have been used * 31st Cons. Ord. rnle i. t See Order of 19th March, 1869. X Ibid. § See Be Midland Connties Benefit Society, 12 W. R. 993 ; see also Buckeridge v. Whalley, 10 W. R. 513, and Parkinson «. Han- bury, 13 W. R. 191 (note). II 31st Cons. Ord. rnle 1. f 31st Cons. Ord. rnle 2. • • See Williams v. "Williams, 2 Law Rep., Ch. App. 15. ON APPEAL. ]93 at the previous heariDg, on wliicli account it is pro- per to enter in the decree or order all the evidence, whether it were actually read or not : indeed, evi- dence may be adduced in the Court of Appeal, which was not brought forward before ; but the party doing so would be exposed to be condemned in costs, even though he succeeded in his appeal. The order on the appeal contains such direction as may be thought right as to the deposit : proceedings under the order are taken in the Court below, ex- actly as if the inferior Judge had made the order in the terms in which it is made by the Court of Appeal. It must be remembered that the foregoing remarks as to petitions of appeal do not apply where the order appealed from has been made on motion, and is not a decree or decretal order ; in such a case the course is simply to make a motion before the Court of Appeal for the discharge or variation of the order, two clear days' notice of which motion must be served on all parties interested. The appeal motion will be set down by the " order of course clerk" in the Registrar's Office, upon the order appealed from, or an office copy thereof, being produced to him, to- gether with a copy of the notice of motion. On such an appeal no deposit is required, nor any certificate of counsel, as in the case of an appeal by way of petition. The practice as to appeal from an order made on a summons does not seem to be quite settled: it is conceived, however, that an appeal motion is the proper course, unless the summons be an administra- L. K 15-1 ON APPEAL. tion summons, in whicli case a petition of appeal should be presented. Orders of the Court of Appeal are subject to re- vision by bin of review or appeal to the Lords, in the same manner as those of the Master of the Rolls and Vice-Chancellors. It may not be out of place to observe here, that the Master of the RoUs and the Vice-Chancellors have respectively power to discharge, reverse, or alter any order made on motion or petition of course by any other of them, or by the Lord Chancellor.* • 13 & 14 Vict. c. 35, s. 29. ( 195 ) CHAPTER X. COSTS. We have from time to time, and particularly in the Section where we treated of Paupers, stated that every step in a Chancery suit involves expense, not only in paying the solicitors engaged for their time and labour, but also in paying certain fees to the Court: indeed, it is weU known that these expenses were formerly so large as to amount to a denial of justice in all cases where the property in question was not of a very considerable amount ; and though this is no longer the case, yet still questions relating to the costs are often very important. In the pre- sent chapter we propose, first, to explain generally the nature of costs; secondly, to state some of the principal rules which determine by whom costs are to be borne in particular cases ; and lastly, to explain the mode in which the amount to be paid is ascer- tained, and the payment of it enforced. Section 1. Of the nature of Costs. We have said that the costs of a Chancery suit consist of the solicitor's expenses and the Court fees. The business done by the solicitors of the parties k2 196 COSTS. consists partly in procuring copies to be made of papers necessary for the purposes of the suit, partly in attending at the offices of the Coiurt and else- where, and in drawing briefs, affidavits, the simpler kinds of petitions, and other documents which are not of a nature proper to be prepared by counsel: for all this business the solicitor is entitled to charge, according to a rate fixed by the orders of the Court, which is supposed not only to compensate him for his actual time and trouble necessary for the per- formance of the particular act, but also for the ex- pense to which he was put in attaining that know- ledge of his profession which he now employs for the benefit of his client. In almost all cases the amount of remuneration to which the solicitor is en- titled is determined by the number of fohos, of seventy-two words each, contained in the proceed- ings : in the case of copies the labour is evidently in exact proportion to the number of words, and there- fore no objection can be raised to this mode of assess- ing the payment to be made, provided of course the copy were necessary; but the labour of drawing an affidavit or petition shortly is often greater than that of preparing it more at length, and yet the longer it is, the greater is the payment allowed: this appears to be holding out a direct premium to the neglect of brevity, but perhaps any other system of fixing the amount of a solicitor's remuneration would leave more to the discretion of the officers of the Court than would be desirable. A recent Act, however, has made a considerable innovation in this matter, by providing that a solicitor may make an agreement COSTS. 197 with Ms client as to the amount and manner of pay- ment for past or future services of the solicitor ; if, however, the agreement refers to business done or to be done in an action or suit, the amount cannot be recovered by the soKcitor until the agreement has been approved by a taxing officer, who has power to refer the agreement (if he think it unfair) to the Judge of the Court wherein the business was done, and such judge may vary or cancel the agreement.* Besides items coming under some of the classes of expense above described, the solicitor charges for fees paid to counsel for their assistance, whether in the way of drawing pleadings, petitions, and other documents, or for advice on cases submitted to them, or for appearing and arguing in Court; the solicitor also pays the solicitors of other parties for any copies of documents which he may require, and which by the rules of the Court are procurable fi-om the adverse soHcitor: and lastly, the payment of the Court feesf requires the expenditure of a con- siderable amount of ready money. These fees are payable on alftiost every occasion when anything is done in the offices of the Court, in the progress of a suit: the amount is fixed by the General Orders, and it is the duty of the officer to see that the proper sum is paid. The payment is made by means of adhesive stamps affixed to some document dealt with on the occasion, which stamps are defaced or cancelled in the office to prevent use being made of them a second time : the stamps are • See 33 & 34 Vict. c. 28. t 39th Cons. Ord. 198 COSTS. issued by the Commissioners of Inland Revenue in the same manner as other stamps, but a separate account is kept of the number sold, and the amount paid for them is carried to the credit of a fiind called the Suitors' Fee Fund: this fund is the primary source &om which are paid the salaries of some of the oflScers and other expenses connected with the Court. When any question arises affecting the amount payable to this fund, notice is served on a solicitor who acts for the fund, and instructs counsel to appear and advocate its claims. Having thus seen what is the nature of the items which make up a solicitor's biU of costs, we shall proceed to consider who is to pay it. Section 2. By whom Costs are -paid. It very frequently happens that in the course of a suit some fund is paid into Court, there to await the final decision on the rights of the parties to it. When this is the* case, the costs are often made payable out of this fimd, and not directly by any party, although of course the expense falls on the persons, whether parties or not, to whom the residue of the fund belongs, after payment of the charges on it: this is called giving costs out of the fund. When an interlocutory application is disposed of, directions are sometimes given, forming part of the order, as to the defraying the costs of the parties to the application : and, as we have said, certain general rules exist for determining the question, when the COSTS. 199 order is silent on the subject. Tlie result is, that sometimes a party has to bear his own costs, in which case the solicitor has no one to look to but his client: or one party may have to pay costs to another, which payment can at once be enforced in the manner described in the next section : or lastly, the costs of some party may be " costs in the cause," which means that no determination is at present come to on the subject, but these costs wiU be pay- able in the same manner and by the same parties as the general costs arising from the regular proceed- ings in the suit. The interlocutory proceeding is, as it were, incorporated with the main body of the suit, when the costs of it are made costs in the cause. The successful party in an action at law, whether plaintiff or defendant, is in general entitled to judg- ment for his costs, and to recover them from his adversary, without any order being made on the subject : questions may, and often do, arise as to the amount payable, especially with reference to the Coimty Court Acts; but this does not affect the general principle that success entitles the party as of right to his costs. In Chancery it is otherwise: no party has, in theory, any right to his costs of suit, and the giving them is a matter for the discretion of the Judge in each case : no costs of suit can ever be recovered, unless this discretion be exercised, and an order be made directing payment. "With the view of expedit- ing the proceedings in the suit the rule is generally observed, that no direction for the payment of costs 200 COSTS. will be given until the matter comes before the Court at such a stage that probably it will not come on again : thus no direction as to costs is usually given in a decree directing accounts and inquiries in chambers, for the hearing on further consideration is considered the proper time for deciding the point, especially as the discretion of the Judge in dealing with the costs will often be regulated by the result of these accounts and inquiries. We shall now proceed to indicate, very briefly, a few of the principal rules governing the discretion of the Judge in allowing and refusing costs of suit. And in the first place we observe, that in suits for administration of estates, the costs of all proper parties are in general paid out of the fund, before any part of the fund is applied in payment of the creditors or legatees,* and this whether the plaintiff be a creditor, legatee, or executor : if, however, the fund be insufiicient to pay all the costs, the executor, whether he be plaintiff or defendant, is entitled to his costs in the first instance ; but if it be clearly made out that the executor has been guilty of fraud or negligence, whereby the suit has become necessary, he will have to pay not only his own costs, but the costs of the other parties, f So in all proceedings wherein persons are brought before the Court, or seek its aid, in a fiduciary character, the payment of their costs wiU be provided for, unless they have so wrongfully acted in the trust as to induce the Court • Ford V. Earl of Chesterfield, 21 Bea. 426. t Tickner ». Smith, 3 Sm. & GifE. 42. COSTS. 201 to make them pay their own costs.* Again, it is another well-settled rule,t that in suits for ascertain- ing the construction of a wiU, the costs of all proper parties will be paid out of the general estate of the testator, on the principle that, the suit having been caused by his ambiguity of expression, his estate must pay the penalty. In foreclosure suits the plaintiff usually is entitled to the payment of his costs of suit out of the mort- gaged estate, in addition to the payment of the prin- cipal and interest of his debt, and it may be stated as a general rule that the costs of suits (whether for fore- closure or redemption) brought for the purpose of enforcing the rights of parties to transactions in the nature of mortgages are directed to be added to the mortgage debts of the parties, the effect of which is that they are borne by the person whose property is the subject of the charge ; but if the property be insufficient, the parties wiU have to bear their own costs ; except in the case where a foreclosure suit is brought by the mortgagee against the original mort- gagor, in which case it seems that an order will be made for their payment by the defendant per- sonally. | When a suit is brought merely for the benefit of the plaintiff, without any default on the part of the defendant, as in the case of a biU of discoveiy, the » See Lewin on Trusts, 4th ed. 663 et seq.; Noble v. Meymott, 14 Bea. 480. t Jolliffie V. East, 3 Bro. C. C. 25. X Smith's Chancery Practice, 7th ed. vol. i. p. 1065. k5 202 COSTS. costs must be borne by the plaintiff: also if a bill be brought by a devisee to establish the will against the heir, the whole costs must be borne by the plaintiff, . even though the defendant insist on his right to an issue, and fail on the trial: if, however, the heir vexatiously question the sanity of his ancestor, he wiU not be allowed his costs. However, in the great majority of cases, the Court will in general be guided by the result, and give costs to the party who, on the whole, is successful. It must nevertheless be observed, that if the plaintiff by his bill ask more thin he shows himself entitled to, he will be considered as the unsuccessful party, even though he do obtain a part of the relief asked : thus, if the bill contain a charge of fraud against the defendant, which is not proved, or if it ask that the defendant may be ordered to pay the plaintiff's costs, where the plaintiff does not show any title to such an order, these circumstances will operate to the disad- vantage of the party who has made these unfounded claims. The Ceurtwill alse, in disposing of the ques- tion of costs, consider the conduct of the parties in the suit ; if, for instance, an irrelevant issue be raised or a great quantity of evidence be adduced on an miimportant issue, the expense of these useless pro- ceedings win often be thrown on the party in fault. As in the case just mentioned, it is not uncommon for the costs of different parts of the suit to be borne by different parties. COSTS. 203 Section 3. Costs, how taxed and paid. When costs are to be paid by one competent party to another, the order directs payment to be made to the solicitor of the latter of the amount of the costs, "such costs to be taxed by the proper Taxing Master, in case the parties differ about the same : " and in cases of incompetency, the taxation is not optional : we thus see that taxation of the costs is a step which must be taken before the amount can be recovered. "We must, therefore, now describe the meaning and mode of taxation.* The solicitor of the party claiming payment of costs under the order, whom we shall term the plaintiff, makes out a fair copy of his bill, with a space left, for any deductions which may be made in the amounts charged: this copy he takes, together with the order, to the office of the Taxing Masters, in order to obtain an appointment for proceeding with the business. The bill is indorsed with a memorandum of the name of the proper Taxing Master : for this purpose, the names of the Masters are taken in rotation, unless any bill has been already taxed in the same suit, in which case the reference is made to the same Master as before. When the name of the proper Taxing Master is ascertained, the bill and order are left with his clerk, who mentions what is the earliest time at ;ffhich the Master will be disengaged : notice to attend at this time is served on all parties interested. • See the 40tli Cods. Ord. and the Order of 17th April, 1867. 204 COSTS. At the appointed time, the solicitors of all parties attend before the Master, who goes through the biU : he requires evidence that the business charged for has actually been done, that it was reasonably necessary that it should be done, as part of the busi- ness mentioned in the order, and that the amount charged is reasonable. The papers in the cause are usually the evidence that the business has been done, and one document wiU often be a voucher for several items in the biU : for instance, the production of an order wiU prove that certain steps must have been taken before that order could have been ob- tained, and win therefore act as a voucher for the charges for those steps. Most of the questions that arise on taxation relate to the necessity of the business charged for with re- ference to the terms of the order : for although the business may have been absolutely necessary, yet it may be such as wlU not be allowed on taxation, unless particularly mentioned in the order. For instance, if the order direct the taxation of the costs of a party, this will not in general include any ex- penses incurred before the institution of the suit: if therefore an opinion of counsel were taken as to the propriety of commencing proceedings, and the plaintiff thinks himself entitled to the expenses of this opinion, he- must take care that the order directs taxation not only of his costs, but also of his costs, charges, and expenses properly incurred with reference to the matters in question in the suit. As to what steps will be considered reasonably neces- sary for any desired end, a considerable body of ri:des COSTS. 205 exists ; but still a great deal is left to tlie discretion of the Taxing Master. And now the Act* lastly referred to, provides that the Master may, in deter- mining the remuneration of the solicitor, have regard to the skiU, labour, and responsibility involved. The amount which it is allowed to charge for each step is in general fixed by the General Orders of the Court ; cases however arise in which the Master has to exercise his discretion on the subject. Sometimes the order du'ects that the costs of some party, as of the plaintiff in a creditor's suit, be taxed as between " solicitor and client : " in this case the taxation is conducted on the principle of allowing to the solici- tor aU payments for proceedings, which, though not strictly necessary for the purposes of the suit, were yet undertaken at the request or with the sanction of his client : in other cases the taxation is directed to be made between " party and party," which is on a less liberal scale. When the Master thinks that any deduction, total or partial, ought to be made from the amount of any item, he enters the deduction in the column appro- priated for the purpose : the amount of the bill and of the deductions is then ascertained, and the differ- ence will be the costs allowed, after the addition or subtraction of the costs of the taxation ; these will be borne by the party indicated by certain rules which have been laid down on the subject, and of which the result is that the party in fault, if any, bears the whole expense. The Master makes a cer- • 33 & 34 Vict. c. 28, s. 18. 206 COSTS. tificate of the result of the taxation, which is filed in the Report Office, and copies of it may be procured as in the case of a Chief Clerk's certificate. If any party be dissatisfied with the allowance or disallowance of any item by the Master, he should, before the certificate is signed, apply to the Master for a warrant to review the taxation, and thus any objection which was raised during the taxation may be brought a second time before the Master, who wiU review his decision ; and if any party is dissatis- fied with the certificate of the Master on any item so objected to, he may apply by summons at chambers* for an order to review the taxation, on the hearing of which no other evidence can in general be used than what was used before the Master. If the application be granted, the taxation will be reviewed accordingly, but the certificate is final as to all matters not so ob- jected to. If the costs are payable out of a fund in Court, a cheque for the amount will be made out on the pro- duction of the order and the Taxing Master's certi- ficate at the Chancery Pay Office ; if payable from one party to another, the payment may be enforced by writs oi fieri facias and elegit; or steps may be taken to make the non-payment a contempt of Court. For this purpose a writ is sued out, called a sub- poena f for costs: the form given in the Appendix, No. XXIV., shows that this is an order fi:»m the Queen to the defendant to pay the amount ; on neg- lect to obey this order, a commissioa of sequestration • See Order of 17tli April, 1867. t 40th Cons. Ord. rule 38. COSTS. 207 issues &s already described. The subpoena itself is a sufficient authority to the beaner to receive the costs mentioned in it, and no power of attorney is necessary for the purpose. It remains to say a few words on the giving secu- rity for costs. The bill, as we have seen, contains the address of the plaintiff: if this address show that the plaintiff resides out of the jurisdiction of the Court, and that not in any official capacity,* nor on actual service in the army or navy, or if the address given be vague and uncertain, or •wilfuUy false, the defendant is entitled to require some guarantee that if the plaintiff feU in his suit, and be ordered to pay the defendant's costs, he (the defendant) will be able to obtain them. For this purpose he should apply for an order that the plaintiff give " security for costs," and that in the meantime the proceedings be stayed. This order is granted on motion or petition of course, if founded merely on what appears on the bill ; otherwise it is obtained by motion made to the Court in the regular way, notice being given to the party interested, and the application being supported by affidavit. By taking any step in the suit after becoming aware that he is entitled to this order, the defendant waives his right to it. If the order be made and served, the plaintiff either gives to the Record and Writ Clerk f a bond of two or more persons, in the sum of £100, conditioned for the payment of the costs which may be adjudged payable by the plaintiff; or he pays into Court a • Evelyn v. Chippendale, 9 Sim. 498. t Ist Cons. Ord. rule 38; 40tli Cons. Ord. rnle 6. 208 COSTS. sum of money sufficient to produce £100, when the expense of getting it out is provided for. Until one or the other course has been adopted, the time allowed to the defendant for taking his next stepl in the cause does not run. If there are several plaintiffs, and any one of them is within the jurisdiction, the defendant cannot have an order for security for costs, though aU the other plaintiffs are abroad. ( 209 ) PAET III. PROCEEDINGS WITHOUT BILL. We have hitherto been employed in tracing the course of proceeding in suits commenced by bill : this is the general mode of bringing any complaint before the Court, and may be adopted in every case ; and whenever another course is adopted, the party adopting it must be prepared to show an authority for so doing. This authority is to be sought either in the original inherent jurisdiction of the Court, which in some few cases allows a proceeding to be commenced without bill ; or in some one of the numerous statutes, under which it is sufficient to commence by jjetition or motion. If any party file a bUl in a case where it might have been dispensed with, he must bear the extra costs occasioned by the adoption of this more expensive course, xxnless he can show any particular circumstances which take his case out of the general rule. Before proceeding further we may remark, that for a careful summary of the numerous and important matters disposed of by the Court of Chancery (without biU filed) under the jurisdiction conferred on it by particular statutes (commonly called its " statutory jurisdiction "), the 210 PROCEEDINGS WITHOUT BILL. reader cannot do better than consult a work published in 1861 , and entitled " Barrj''s Statutory Jurisdiction of the Court of Chancery," which, in addition to the various decided cases bearing on the subject, contains an Appendix of Precedents likely to prove of great service to the practitioner. We said at the beginning of the Second Part that the obtaining a decree is in many cases but an unim- portant and almost formal step in a suit, and that the real contest arises during the proceedings after a decree. It is to meet such cases that the policy of many of the statutes just referred to is framed : they give no new jurisdiction to the Court, and do not enable it to make any decree or order which might not have been made under the inherent jurisdiction in a suit commenced by bill between proper parties : they merely provide a speedy and inexpensive mode of arriving at a decree of obtaining an order with- out the necessity of long written pleadings. Others of those statutes, and especially the Trustee Acts, do confer new jurisdiction, as well as point out a short and easy mode of exercising it. There are others of those statutes which cannot well be referred to either of these heads: but the division is of no practical importance. The most convenient mode of classifying the various subjects of this summary jurisdiction ap- pears to be by reference to the classes of suits which would originally have been necessary to obtain the object sought. But first we must notice a mode of commencing proceedings by Special Case, which is applicable in particular cases, whatever be the PROCEEDINGS WITHOUT BILL. 211 nature of the point calling for decision. Next we shall notice a recent statute under which Trustees can obtain the advice and direction of the Court as to the management of the property entrusted to them without resortii^ to the expense of a suit ; we shall then mention several statutes which give the Court a summary jurisdiction over questions which arise as to the rights and interests of persons, whether incapacitated or otherwise, claiming- under Settle- ments. Several modem Acts have dispensed with the necessity of a bill in proceedings often instituted by or against Trustees ; these will be noticed in the Fourth Chapter: the Fifth will treat of the sum- mary mode of obtaining a decree for administering the estate of a deceased person; while the Sixth will discuss the miscellaneous subjects connected with the jurisdiction of the Court over Solicitors, Chari- ties, Winding-up Joint Stock Companies, and the Registration of Titles (which subjects do not seem to belong to any of the preceding classes), and the Seventh wiU deal with the equitable jurisdiction of the County Courts. If the reader be in the habit of attending the Court of Chancery, he will have observed that matters are frequently heard before the Judges which form no part of the proceedings in any suit, nor are autho- rized by any of the statutes noticed in this Part ; such are Petitions in Lunacy, for which one day in each week is usually set apart by the Lords Jus- tices; also Petitions of Appeal in Bankruptcy, which are heard by the Lords Justices, or sometimes by the Lord Chancellor ; such too are the applications ^12 PEOCEEDIKGS WITHOUT BILL. relating to patents, inquisitions, writs of scire facias, habeas corpus, and the like, which are usually made by motion before the Lord Chancellor. None of these matters belong to the equitable jurisdiction of the Court, with which alone we are concerned in this work : it will be sufficient here to state that the care of lunatJcs has been, and in fact usually is, committed by the Queen's sign manual to the per- sons who fiU the offices of Lord Chancellor and Lords Justices:* that practically all applications in Lunacy are made to these latter Judges ; that the jurisdic- tion as a Court of Appeal which the Bankrupt Law Consolidation Act, 1849, conferred on one of the Vice-Chancellors was transferred to the Lords Justices by the statutef which instituted their office : while the other matters which we have mentioned come before the Lord Chancellor, as Keeper of the Great Seal, and form part of the business transacted in the 'Petty Bag Office. | We may mention in this place, the proceeding by Petition of Eight, which, it will be remembered, is the mode in which a subject makes a claim against the Crown, which claim would, against a private person, be the subject of an action or suit. This procedure is now regulated by " The Petitions of Eight Act, 1860,"§ which, after reciting in its preamble that it is expedient "to assimilate the proceedings, as nearly as may be, to the course of practice and procedure * See 14 & 15 Vict. c. 83; 15 & 16 Vict. c. 87, s. 16. t U & 15 Vict. c. 83, s. 7. j 12 & 13 Vict. c. 109. § 23&24 Vict. c. 34. PEOCEEDmGS WITHOUT BILL. 213 now in force in actions and suits between subject and subject," proceeds to lay down the mode in which such Petitions are to be framed, and submitted to the Crown, answered or pleaded to on behalf of the Crown, and heard before the Courts of Equity or Common Law. If the Petitioner or " Supplicant" succeeds, he may recover costs against the Crown. The Attorney-General usually represents the Crown in such cases. Some general orders have been made as to the procedure under this Act, dated the 1st of February, 1862.* * See commencement of vol. 10 of the "Weekly Reporter." ( 214 ) CHAPTEE I. SPECIAL CASES. There were until recently two modes by which in particular cases decisions could be procured on ques- tions of almost every nature, namely, by Claim and Special Case. The former was merely a modified form of bill, not admitting of any further pleading ; the order made on a claim being of the same nature as that made on a bUl. It is not however now neces- sary to make any further allusion to Claims,, as they have been recently abolished,* on the ground that, although usefiil at the time when they were intro- duced (1850), they have, since the improvements introduced by the Jurisdiction Act of 1852, become unnecessary, and were but little used. A Special Case is applicable only where the parties are agreed as to the facts of their case, but desire the decision of the Court on the law applicable to those facts: it can be brought only by consent of all parties, and the decision made upon it is in the nature of a declaratory decree only, without any possibility of giving the consequential directions which usually follow a declaration of right in an ordinary decree. Special Cases were introduced by an Act of Par- liamentf passed in 1850, at the instance of the late • 8th Cons. Ord. rule i. t 13 & 14 Vict. c. 35. SPECIAL CASES. 215 Lord Justice Turner. The special case is entitled between different parties as plaintiffs and defendants, and states the facts in successive paragraphs in the same manner as a bill: it concludes with stating, in the form of questions, the points on which the opinion of the Court is asked. The signatures of counsel for the different parties are appended, and the whole is engrossed on paper, filed, set down, and heard, in the ordinary way: on the hearing, the Court wiU answer each of the questions proposed, unless in its discretion it declines to answer one or more of them. The parties to the case will be precluded from dis- puting the correctness of these answers (except of course by way of appeal), or the truth of the state- ments of fact on which they are founded.; but the answers will not bind nor in any manner affect per- sons who are not parties to the ease. It is better to make all the persons interested parties to the case : since the Court will sometimes, in the exercise of its discretion, decline to give any answer to a ques- tion put by some only of the persons interested. One of the questions should always relate to the costs of the case, unless the parties can agree among themselves how they shall be borne: otherwise, each wiU have to pay his own. Various provisions are made by the Act for enr abling infants and lunatics to concur, through the medium of guardians or committees : but this con- currence does not bind the infant or lunatic to the truth of the facts, but only to the correctness of the law as laid down on these facts: hence the answers given on a special case to which incompetent persons 216 SPECIAL CASES. are parties do not absolutely preclude all future litigation on the subject. The husband of a married woman may concur on her behalf if she claim no interest distinct from him ; if otherwise, both must concur. In the year 1850, both claims and special cases were a great improvement on the then existing practice of the Court. At that time, bills were far longer than at present, and no decree could be had in any suit until all the defendants had answered, and generally it was necessary to take a great quan- tity of written evidence : when the suit did come to a hearing, no decree could be made, unless all the parties interested were before the Court, and even then it often happened that no declaration - of right could be made until after long and expensive pro- ceedings in the Master's office, for the purpose of taking accounts which no one wished to be taken, and of ascertaining facts which no one doubted. It was therefore a great boon to suitors, when they were enabled by claim to get a cheap and 'Speedy decree, without bringing any useless parties before the Court; and by special case, to get what was equivalent to a declaratory decree, without any use- less accounts and inquiries. These advantages far outbalanced the inconveniences that if, in the course of a proceeding by claim, it became necessary to have some discovery from or an injunction against the defendant, the expense incurred in the claim was thrown away, and a biU. had to be filed: and that on a special case, any slight error in the facts often deprived the parties of that security which SPECIAL CASES. 217 they sought, and if in the same matter any person wanted an account to be taken in Chancery a bill had to be filed for the purpose. But at present these inconveniences remain, while the conveniences have vanished: a decree can be had on a bill to which no interrogatories are filed, abnost as speedily and cheaply as on g, claim: and when a bill is once filed, it can. be adapted by amendment to any new circumstances ■vyhich may arise. Moreover a suit by bill properly constituted effectually indemnifies all persons against the claims of infant or lunatic parties; and the Jiu^isdiction Act of 1852 allows the Court in its discretion to make a merely declaratory* decree, and to proceed in the absencef of persons interested; by this, all the advantages of a special case are attainable, without the disadvantage above referred to. For these reasons claims are abolished, and special cases are less fi*equently filed at present than for- merly: and therefore we have not thought it worth while to enter at length into the details of practice concerning them. * 15 & 16 Viet. c. 86, s. 50. t 15 & 16 Vict. c. 86, s. 42. C 218 ) CHAPTEE II. PETITIONS FOB OPINION OF THE COURT. Until the year 1859 there existed no means by which trustees could obtain the protection of the Court in the management of the trust property (in cases where there was no suit actually pending with reference to the property), except by filing a bill. In that year, however, an Act was passed which is calculated to be of great service to trustees, and to save considerable expense to trust estates. The Act* enables any trustee, executor, or administrator, without instituting a suit, to apply to any Chancery Judge, either by petition in open Court, or by sum- mons at chambers founded on a written statement of facts, for the opinion, advice, or direction of the Judge on any question respecting the management or administration of the trust property, or the assets of any testator or intestate; and the Act provides that such trustee, executor, or administrator, acting upon such opinion, advice, or direction, shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor, or administrator, in the subject-matter of such ap- plication : but the applicant will gain no indemnity under the Act, if he have wilfully concealed or mis- represented any fact. * 22 & 23 Vict. c. 35, s. 30. PETITIONS FOE OPINION OF THE COURT. 219 By a further Act* it is provided, that every such statement or petition shall be signed by counsel, and that the Judge may require the aid of counsel, either in chambers or in Court. The general result of the decisions hitherto made upon these Acts is, that the Court will act on the assumption of the truth and correctness of the alle- gations in the petition or statement, and will there- fore admit no affidavits in support of such allega- tions;! tl'S't the Court will not give its opinion on questions of construction, or upon a nice question of law, and will recommend a bill to be filed: that it will deal similarly with a case where the question is one of detail, requiring the assistance of affidavits ;| that no inquiry in chambers can be directed ;§ and that the petitioners must serve the petition on such persons as they think fit, and state at the foot of the petition whom they have so served. || Some General Orders with reference to these Acts were issued on the 20th of March, 1860. They wiU be found in Morgan's " Chancery Orders." • 23 & 24 Vict. c. 38, s. 9. f Ee Mnggeridge's Trusts, Johnson, 626. X Ke Barrington's Settlement, 1 Johnson & H. 142. § Ee Mockett's Trusts, Johnson, 628. Ee Green's Trusts, 8 W. E. 403. l2 ( 220 ) CHAPTER III. SETTLEMENTS. The Court of Chancery exercises a summary juris- diction in a great variety of cases relating to settled property. Such of these cases as relate to trustees wiU be the subject of a future Chapter: in the pre- sent, we shall consider some other cases, first pre- mising that we use the term " settled property" with reference to property settled by will as weU. as to property which is the subject of a technical settle- ment. First, we shall describe the nature of the summary jurisdiction exercised in the case of infants and other incompetent persons; secondly, that which promotes the preservation of settled property; and thirdly, that which relates to its management: these divisions perhaps run the one into the other, but on the whole they seem the most convenient. Section 1. Infants and Incompetent Persons. In this Section we shall consider some cases in which the Court ^ves authority to acts done (as is presumed) for the benefit of incompetent persons. 1 . Infants. The Court of Chancery is the guardian of all infants who have no other guardian, and it is SETTLEMEKTS. 221 often the duty of those under whose care any infant possessed of property is left after the death of his father or guardian to make him a ward of Court. This is done by filing a bill praying for the protec- tion of the Court, concerning which mode of pro- ceeding we need say nothing in this place : or by the summary process of a summons in chambers. This Jurisdiction of the Court over infants has long been exercised in a summary way, without biU filed : formerly, the course adopted was by present- ing a petition entitled in the matter of the infant, praying for the appointment of a guardian, and the approval of an allowance, out of the infant's pro- perty, for his maintenance. Under the present practice the course is stUl more simple : a summons entitled in the matter of the infant is taken out at chambers,* and served in the same manner as if it were in pursuance of a reference to chambers, contained in a decree directing the approval of a guardian and maintenance : on the return of this summons, and on the production to the Judge in chambers of satisfactory evidence f as to the infant's age, property, and relations, an order is made to the effect required. The order thus made is as effectual for all purposes as if made in a suit regularly insti- tuted : if however circumstances make it desirable, directions wiU be given for the filing of a bill. But however the proceeding.be commenced, the Court win from time to time make such orders as may be • See 15 & 16 Vict. c. 80, s. 26; and 35th Cons. Ord. rale 1. f See rule 19 of the " Regulations as to Business in Chambers," which will be found in " Morgan's Chancery Orders." 222 SETTLEMENTS. necessary for the management of the property of the infant, and for his proper maintenance and educa- tion : every such order being made on a summons in chambers, whence the matter may be adjourned into Court, in case any point arises of importance sufficient to require counsel. We may here mention that by the "Infants' Custody Act" (2 & 3 Vict, c. 54) the Court has power, on the petition of the mother of an infant under seven years, to order that such infant be removed from the custody of the father, or of any guardian after the father's death, and delivered to the custody of the mother until attaining such age. The nature of the authority exercised by the Court over its wards, and the manner in which it protects their person and property, will be found stated in the treatises on Equity Jurisprudence : we are here concerned only with the mode in which the position of the infant is brought under the notice of the Court. 2. Infants' Estates. By a useful statute,* power is given to the Court to approve of settlements to be made by infants on their marriage : this Act renders valid dispositions which without it would be void on account of the nonage of the settlor. To obtain such approval, a petition f is presented, entitled in the matter of the particular settlement and of the Act : this petition sets out the circum- stances of the parties to the marriage, and the settle- ment proposed: on the hearing, an order is made • 18 & 19 Viet. c. 43. f See a form of such Petition in the Appendix, No. XXVIL SETTLEMENTS. 223 refeiiing it to chambers to settle the deed, which is done by one of the conveyancing counsel in the same manner as if the petition were presented in a cause. The execution by the infant of the deed as settled is as eflfectual as if the infant were of fuU age. Evidence* must be produced in chambers as to the age, fortxme, rank and position of the infant and the proposed husband or wife, as to the parents or guardians of the infant, and as to the fitness of the proposed trustees of the settlement; andthe pro- posals for the settlement must be submitted to the Judge in chambers. It seems doubtMf whether an application under this Act makes the infant a ward of Court, and whether therefore, as in the case of the marriage of a ward, the Court is bound to in- quire into the propriety of the marriage as well as into the fitness of the settlement; obviously, how- ever, the latter inquiry will often indirectly lead to the former. 3. Protectorship. It is well known that a tenant in tail cannot bar the entail without the concurrence of the protector, if any, of the settlement. The Fines and Recoveries Act, | which established the office of protector, makes provision § for the case of the office faUing to a person who has been convicted of treason or felony, or who cannot be found: also for the case where the protector is an infant, and has no estate under the settlement prior to the estate tail, • See rule 20 of the Regulations as to Business In Chambers, t Re Dalton, 6 De G., M. & G. 201 ; Re Strong, 5 W. R. 107. I 3 & 4 Will. 4, c. 74. § 3 & 4 Will. 4, c. 74, s. 33. , 224 SETTLEMENTS. or where the settlor has declared that the office shall not belong to the person regularly entitled, but has not substituted any other person in his place : in all these cases, the Court of Chancery is, and if the protector be a lunatic, the Lord Chancellor or Lords Justices are, constituted protector of the settlement, and an order of Court is necessary to perfect any disentailing assurance. This order may be obtained by the tenant in tail on petition or motion,* of which course the former is usually adopted : the petition wiU be entitled in the matter of the settlement and of the Act, and should show that the proposed disposition will be for the benefit t of all the objects of the settlement. On this petition a reference to chambers will pro- bably be directed, to approve of an instrument to carry into effect the intention ; after which an order -will be made giving the required consent. It seems that this order does not require enrolment, which is necessary only in the case of consent being given by deed : and it is expressly provided f that the pro- duction of the order shall be evidence that a valid consent has been given. Section 2, Preservation of Settled Property. 1. Restraint in dealings with Stock. It is well known that the Bank of England and other public • 3 & 4 Will. 4, c. 74, s. 48. f Be Newman, 2 My. & Cr. 116; and see for form of order, Ee Gravenor, 1 De G. & S. 702. J 3 & 4 Will, 4, c. 74, a. 49. SETTLEMENTS. 225 bodies who keep registers oftlie owners of their stock refuse to notice on their books any trusts or equitable claims ; they wiU always permit , a transfer by the person whose name appears as owner, and by no 'other person. The Court of Chancery, however, exercises the jurisdiction of giving some protection to equitable claimants against the improper acts of their trustees, by enabling them to restrain the bank or public company from allowing a transfer of any particular stock without certain notice being previously given to specified persons. This is accomplished in the case of the Bank of England by the writ of distringas, and in this case or in that of any public company by a restraining order, both granted by the Court of Chancery under the authority of a statute of 1842.* Somewhat similar in its effect is a stop order, by which the right of a person is protected, who acquires a lien on a fund which is actually in Court. Of these in order. A distringas is a writ addressed to the Sheriffs of London, commanding them to distrain on the Bank of England, to compel them to appear to a bill said to have been filed against them. No such bill is in fact filed : the writ never comes to the knowledge of the Sheriffs of London to whom it is addressed; and the form gives no hint of its real effect under the statute. However, it is provided by the orders of the Court t that such a writ may be sealed by the Eecord and Writ Clerk, on the production to him of • 5 Vict. c. 5, S3. 4 and 5. t 27th Cons. Ord. rule 1. l5 226 SETTLEMENTS. an affidavit that the applicant is, or that his solicitor believes him to be, interested in the stock in ques- tion, which is described by its nature, its amount, and. the names in which it is standing ;, this affidavit is filed, and the writ is sealed and taken to the bank, together with a notice desiring them not to permit a transfer of the stock or not to pay any dividends on it, as the case may be. If any application for transfer or payment be afterwards made to the bank, they wUl not allow the transfer, or pay the dividends, for light days, and wiU at once send notice of the application to the person for whom the distringas was obtained. These eight days give time to insti- tute a suit,* to which if necessary the bank may be made parties, and restrained by injunction in the regular manner : but if no steps are taken, the pay- wnent or transfer is made at the end of the eight days. The person obtaining the distringas may at any time discharge it by motion of course : f if any other person claiming an interest in the stock wish to discharge it, he must apply by special motion or petition on proper notice. | The writ of distringas now issuable out of Chan- cery is the same as was formerly issued out of the Court of Exchequer, and when the equitable juris- diction of the Exchequer was transferred .to the Court of Chancery, in 1842, this writ was retained,§ although it is now a meaningless fornii this is much • See Be Amyot, 1 PhiL 131, note. t 27th Cons. Ord. role 3. : Ibid. § See 1st schedule .to 5 Vict. c. 5. SETTLEMENTS. 227 to be regretted, as it tends to throw an air of mys- tery over a most simple and beneficial procedure, — a procedure, tbe adoption of whicb would often save families from ruin now brought upon them by the knavery of trustees. The effect which service of the writ and notice now have might without any disad- vantage be given to the service of a copy of the notice, bearing the seal of the Record and Writ Office, to indicate that it is founded on an affidavit actually on the files of the Court. It should be here observed, that although, for the purpose of a con- sistent arrangement of the subjects of this Chapter, we have assumed the stock to be settled, and to be standing in the names of trustees, the remedy by writ of distringas is open to any one claiming a be- neficial interest in the stock, whether by mortgage or otherwise, and not being the registered owner thereof. The same remark applies to restraining orders and stop orders. A restraining order is in the nature of an injunc- tion, restraining the Bank of England or some pub- lic company from allowing any dealing with some stock or shares specified in the order: it is granted on an ex parte motion or petition, stating special grounds to induce the Court to grant the applica- tion, and supported by affidavit. These orders are not much in use, and it seems that they are intended merely as preliminary steps to the institution of a regular suit. A person who has obtained a distringas may also obtain a restraining order.* • See' 1 Phil. 132. 228 SETTI.E3LEIITS. The Court is in the nature of a trustee of all sums of money or stock standing in the name of the Pay- master-General to the credit of any cause or matter: and it is well known that the assignee of money or stock in the hands of a trustee ought, in order to complete his equitable title, to give notice of the as- signment to the trustee : otherwise his claim is Hable to be defeated by that of some other assignee of the same property, who knew nothing of the first as- signment, and who did give such notice. The mode in which notice is given, on the assignment of a fund in Court, is by the assignee obtaining what is called a stop order,* This is obtainable in cham- bers, whenever the assignor and the assignee con- cur: otherwise, a special petition, with evidence of the assignor's title, and of the assignment to the petitioner, must be presented to the Court. The order is drawn up in the usual way, and left at the Chancery Pay Office ; after which, no dealings can be had with the ftmd afiected, imtil the stop order is finally discharged, or until an order is expressly made to deal with the fund notvfithstanding the previous stop order. 2. Unclaimed Stock. When the dividends on any stock in the Bank of England have remained unclaimed for ten years, the stock is transferred to the Commissioners for the Reduction of the National Debt ; and on the application of the equitable owner, or his representative, it will be re-transferred, and the accumulated dividends paid. If however the Commis- * See 26th Cons. Ord. SETTLEMKNTS. 229 sioners axe not satisfied with the title of any claimant, and refuse to do what is required, he may petition the Court of Chancery, which is authorized to make such order as may be just on the matter. The Commis- sioners and the Attorney-General must he served with the petition, and provision is made for payment of their costs. This jurisdiction is under a statute of 1816.* 3. Production of cestui que vie. If a person be in possession of land for the hfe of another, it is evi- dently his interest to conceal the death of that other, in order to enjoy the land to the prejudice of the reversioner. To prevent frauds of this nature, a statute of Queen Annef enacts that the reversioner may apply to the Lord Chancellor for an order for the production of the cestui que vie; and, in default of such production, may enter on and hold the land. An order under this Act should be asked for by petition, and may, it seems, be made by a Vice- ChanceUor, but not by the Master of the E.olls.| Section 3. Management of Settled Property. 1 . Lands Clauses Consolidation Act. It frequently happens that land is required to be taken for the pur- poses of railways, docks, and other public works, and the Legislature thinks that the public importance • 56 Geo. 3, c. 60; and see 8 & 9 Vict. c. 62; see also "Seton on Decrees," 3rd edit. 1106, 1107. f 6 Anne, c. 18; see 12 Sim. 104; 8 W. R. 649, and " Seton on Decrees," 521, 522. X Meyrick r. Lawes, 23 Bea. 449. 230 SETTLEMENTS. of the objects sought by the promoters justifies the giving them the right to take the necessary land, without regard to the willingness or ability of any person to sell it to them : in such cases the promoters obtain an Act of Parliament giving them what are called compulsory powers over certain specified land: and this Act generally refers to and incorporates with itself an Act passed in the year 1845, called the Lands Clauses Consolidation Act,* as consolidating all the clauses usually found in previous Acts which empowered promoters to take land: under this Act the Court of Chancery has a jurisdiction which is frequently called into action. If the persons interested in the land are all com- petent and willing to contract with the promoters, no difficulty can in general arise except as to the price, whicli vdll be fixed by arbitration or otherwise: but if the land be so settled that incompetent or unborn persons have interests therein, or if those interested, though competent, refuse to contract at all, or insist on a price which the promoters consider unreasonable, then the compulsory powers must be brought into action. First, a formal notice of the intention of the promoters to take the land is given to all persons known to be interested in it; and then machinery is provided for enabling the promoters to have a jury summoned by whom the value is assessed. If this assessed value be paid into the Court of Chancery, the promoters may enter on the land, and the rights of the owners are displaced, and attach on the money paid into Court. • 8 Vict. c. 18. SETTLEMENTS. 231 If any of the persons interested wish the money in Court to be in any way dealt with, they present a petition entitled in the matter of the Lands Clauses Consolidation Act, 1845, and of the special Act under which the lands were taken, and also in the matter of the estate or settlement of the owner. This petition must he served on all parties interested, and, besides its main object, prays that the costs of the petition and of the order to be made thereon or in- cident thereto may be paid by the pronioters: this win be ordered* in aU cases, except where the neces- sity of proceeding under the compulsory powers has been occasioned by the merely wilful obstiaaey of a competent owner, or except where' the Court thinks that the costs, or any portion of them, ought not in fairness to be borne by the promoters. The money is usually at once invested in stock, and the dividendsf are, upon petition for the purpose, ordered to be paid to the person who for the time being would have been in possession of the land : and if the parties please they may leave the fund in Court, obtaining a fresh order on each change of present ownership, until some person becomes en- titled absolutely, when it wiU, if he wish, be paid out to him. But often the money is invested in the pur- chase of other land, or in redeeming incumbrances or the land-tax on other land settled in the same manner as that taken : in this way, the same persons get the benefit of the money, in exactly the same order as though aU the original land! had remained subject to • 8 Vict. c. 18, s. 80. t 8 Vict. c. 18, s. 70. 232 SETTLEMENTS. the settlement. That this should be so, as far as the public convenience will permit, is the great object of all the minute provisions of the Act which we have been considering. Every petition under this Act should contain a statement, supported by an affidavit,* that the peti- tioner is not aware of any right or claim in any per- son to the money or any part thereof, except as may appear in the petition. 2. Leases and Sales of Settled Estates. The great object of the complicated trusts and powers con- tained in a settlement of land is the securing the rights of those who claim under the settlement, and at the same time leaving the greatest facilities for dealing with the lamd. But no foresight of the conveyancer is sufficient to provide for all the con- tingencies which arise with regard to a large pro- perty: and the consequence is that often an oppor- tunity occurs for dealing with the property in a manner highly beneficial to all parties, but of which advantage cannot be taken, because the necessary power is wanting in the settlement. In such a case the parties were, until lately, obliged either to bear the loss, or to apply to Parliament for a private Estate Act, which was obtainable almost as a matter of course, on its being shown that the proposed deal- ing would be reaUy beneficial to all parties. This continued interference of the Legislature with private rights was objectionable on many grounds, and especially on account of the expense attending » 34th Cons. Ord. rule 3. SETTLEMENTS. 233 it. To obviate the necessity of many such applica- tions for the future, the Leases and Sales of Settled Estates Act was passed in the year 1856. Under this Act* (provided that no application for a similar object have been made to and refused by Parliament) the person in possession of the land, provided he be not tenant for an absolute term of years, is authorized to apply to the Court of Chancery for its approval of any proposed lease or sale ; and if this approval be obtained, the arrangement can be carried out, and will be binding on all incompetent persons claiming under the settlement: the application should be made with the consent of all competent persons who have any interest, and should be by petition entitled in the matter of the Act and settlement ; on which, unless the evidence in support of the petition be sufScient to induce the Court to make the order asked for at the hearing, an order is made referring it to cham- bers to inquire whether the proposal be beneficial. The Act carefully provides for the giving notice of the application to trustees, whether holding in trust for incompetent or unborn persons, or others; and the Court requires suiEcient evidepce as to who are the parties interested, and what are the circumstances which render the proposed dealing proper and expe- dient.! It is worthy of remark that the term " settle- ment" is extended by the Act| beyond its ordinary • 19 & 20 Vict. c. 120, amended by 21 and 22 Vict. c. 77, and 27 & 28 Vict. c. 4.5 ; see the General Orders on the Act, 41st Cons. Ord. rules 14 — 25; and see rules 21 & 22 of Eegulations as to Business in Chambers. + 4l3t Cons. Ord. rule 22. j 19 & 20 Vict. 0. 120, a. 1. 234 SETTLEMENTS. meaning, and includes any Act of Parliament, deed, agreement, copy of Court roll, will, or other instru- ment, or any number of such instruments, by which real property is limited to several persons in succes- sion. 3. Drainage. In general, if a tenant for life ex- pends money in improving the estate, he cannot make any part of the expense fall on the remainder- man: but a statute of 1845* provides that the ex- pense of the drainage may, in proper cases, be made a charge on the inheritance : and the Court of Chan- cery is made judge of the propriety of the proposed works. Other provisions^ have, however, been made for the same object, giving the Enclosure Commis- sioners control over such cases, aitd the powers under this Act are now but little used. 4. Irish Mortgage Act.-f An Act was passed in 1834, whereby trustees are empowered to lend trust money on security of land in Ireland, whenever the instrument appointing them authorizes advances on English security, provided that in aU cases of incom- petency of those claiming under the setflement the approval of the Court of Chancery has been ob- tained, either in a cause or upon petition. But by section 5 such advances are not to be made where the trust instrument expressly forbids an investment on Irish security, and hence a practice sprang up among conveyancers of adding the words, " but not in Ireland," to every authority to invest on land in^ • 8 & 9 Vict. c. 56. t 27 & 28 Vict. c. 114, extended by 33 & 34 yict. e. 56. j 4 & 5 Will. 4, c. 33. SETTLEMENTS. 235 England: this practice reduced the Act to little more than a dead letter; and it would seem that the Act is now virtually superseded by the Act* known as " Lord St. Leonards' Act," which empowers trustees, where not expressly forbidden by the trust instrument, to invest the trust fiind on "real se- curities in any part of the United Kingdom," which of course includes Ireland. Nothing is said in this Act about any application to the Court of Chancery for its sanction to such an investment, and it is conceived that, in accordance with the spirit of recent legislationf on the subject, the Legislature intended to leave such investment to the discretion of the trustees. • 22 & 23 Vict. c. 35, s. 32. 23 & 24 Vict. c. 38, s. 11 ; 23 & 24 Vict. c. 145, s. 25. ( 236 ) CHAPTER IV. TRUSTEES. Suits relating to Trustees are of two kinds: in one, the trustee comes as plaintiff, seeking the directions and protection of the Court in the performance of his trust; in the other, the trustee is made a de- fendant for the purpose of compelling him to do some act which the cestui que trust requires of him. The cases in which the Court exercises a summary jurisdiction with regard to trustees will be described in two Sections, corresponding with these two divi- sions. Section 1. Summary Proceedings by Trustees. 1. Trustee Relief Acts. If a person have in his hands a sum of money belonging to any trust what- ever, and a difficulty arises in determining the ownership of this money, he need not incur the responsibility of paying it over to the person who in his judgment has the best right to it. Of course, he may do so if he please ; but he will then be liable to be caUed upon to account over again for the amount, in case any other claimant makes out a better case in a suit instituted for the purpose of carrying the trust into execution. A trustee placed in such a TRUSTEES. 237 situation of difficulty has always had the right to file a bill praying for the protection of the Court : but such a course involves great expense to all parties, although the trustee, in case he appear to have been free from gross fault, -will ultimately receive his costs out of the fund. A cheaper and easier mode of at- taining the same object is afforded by the Acts which are commonly known as the Trustee Relief Acts,* passed in 1847 and 1849. A trustee wishing to avail himself of these Acts must file an affidavit stating shortly, among other things,"f the circumstances under which the difficulty has arisen, and the exact sum for which he acknow- ledges himself to be accountable, after deducting from it all that he claims for costs, or on any other account ;| and the Paymaster-General will, on pro- duction of an office copy of the affidavit, direct the payment of the amount into Court to an account so entitled as to show generally the nature of the trusts to which it is subject : the Acts make such payment a valid discharge to the trustee for the amount paid in. In the same way, stock may be transferred into the name of the Paymaster-General, which transfer will pro tanto discharge the trustee from any claim by the cestui que trust. The money or stock in Court wiU be dealt with by orders made on the petition of the parties interested in it, the petition being entitled in the matter of the • 10 & 11 Vict. c. 96; 12 & 13 Vict. c. 74. t See 41st Cons. Ord. rale 1. 1 Ibid, rule 2. 238 TRUSTEES. Acts and of the particular trusts : the petition should state the affidavit under which the payment was made, and must be served on the trustees and on all parties claiming any interest in the property, unless they join as co-petitioners ; and on the hearing the Court win, if necessary, decide the question which occasioned the difficulty to the trustee. It often happens that two or more petitions, praying for pay- ment or transfer out of Court, are presented and heard at the same time, by the different parties claim- ing right : in such a case, one or more will generally be dismissed, and the order made upon one only. The trustees are, as a general rule, entitled to their costs of appearing on the petition ; but it must be remembered that by paying the money into Court, the trustees so far submit to the jurisdiction that they may be ordered to pay the costs of getting it out of Court again, in case they appear to have acted vexatiously: as where a trustee refused to make a payment until he had been furnished with an unreasonable amount of evidence of the claim- ant's title, and yet paid the money into Court after great expense had been incurred in getting that evidence.* The Acts do not afford any means of taking ac- counts between the trustee and cestui que trust : if the latter believe more to be due to him than the sum paid in, he must file a biU in regular course to have the accounts taken. • See Cater's Trusts, 25 Bea. 361 and 366; Knight's Trusts, 27 Bea. 45; Wylly's Trusts, 8 W. E. 6*5. TRUSTEES. 239 2. Legacy Duty Act. Under the Legp.cy Duty Act,* executors can pay into Court the amount of any legacy, less the duty, in case the legatee be an infant, or be beyond sea : the legacy -will then be dealt with by the Court, on the petition of the party interested. Section 2. Proceedings against Trustees. 1. Trustee Acts.f The Acts which we are now about to consider form an exception to the general rule, that under the summary jurisdiction of the Court nothing can be done which could not be done in a regular suit ; for these Acts enable the Court, through its orders, to affect legal estates and rights, which no proceeding taken under the old jurisdiction could in any way touch. The cases to which these Acts apply are too nume- rous to be here enumerated at length. We may say generally that under them the Court has autho- rity to appoint new trustees, whenever it is needed, on account of death, lunacy, absence, refusal to act, or for any other reason, and when any diiEculty arises in making the appointment without the aid of the Court ; and also under the same Acts, vesting orders can be made by which legal estates and rights are taken out of any trustee who cannot or will not use them for the purposes of the trust, and are vested in new trustees, who can thereupon deal with the legal • 36 Geo. 3, c. 52, s. 82. t 13 & 14 Vict. c. 60 ; 15 & 16 Vict. c. 55. 240 TRUSTEES. estate, or sue in their own names, as though this estate or right had been originally vested in them : moreover, orders can be made vesting in appointed persons the right to call for a transfer of stock, and indemnifying the officers of the bank or other public body making .the transfer accordingly. In the case of a lunatic trustee, application must be made to the Lords Justices.* For the purposes of these Acts, where a mortgage has been paid off, and the mortgagee has not been in possession of the property, he is regarded as a trustee of the bare legal estate which is in him, for the mortgagor or those claiming through him. The principal of these Acts has the short title, " The Trustee Act, 1850 :" the other was passed in the year 1852, and has no short title. Orders under them are usually made on petition, entitled in the matter of the Acts and of the particular trusts, but they may be made in any suit, where any person, whether present before the Court or not, has been declared to be a trustee within the meaning of the Act. Orders under these Acts dealing with a legal estate are liable to the same stamp dutyf as would be payable in case the same dealing had been had by deed. Two examples of petitions under these Acts will be found in the Appendix, XXV. and XXVI. In some cases, instead of obtaining a vesting order, it is more convenient to obtain under these Acts an • Ee Ormerod, 7 W. R. 71. t 15 & 16 Vict. c. 55, s. 13. TRUSTEES. 241 order* appointing some person to execute a deed in tlie place of a trustee ; tliis is done, when to perfect the conveyance it must be enrolled, or otherwise dealt with in a manner not appHcable to a vesting order. Orders under these Acts are themselves evidence of certain facts necessary to give them validity. . 2. Bankrupt Trustees. When a trustee becomes bankrupt, it is usual to have a new trustee appointed in his place, and if it be necessary to apply to the Court for the purpose, a petition should be presented to the Court of Chancery, which should, it seems, be entitled " In Chancery and in Bankruptcy," and the order will probably be made under the Trustee Acts and under the Bankruptcy Act, 1869.t It has been decided that the "Court" mentioned in the 117th section of the latter Act means the Court of Chan- cery. | » See Wellesley r. Wellesley, i De G., M. & G. 537. t 32 & 33 Vict. c. 71, s. 117. X Coombes e. Brookes, 12 Law Rep., Eq. 61. M ( 242 ) CHAPTEE V. ADMINISTKATION. One of the most important and extensive branches of the summary jurisdiction of the Court is that by which a decree for the administration of the estate of a deceased person can be obtained on a simple summons at chambers. There are two statutes con- ferring this jurisdiction : one relates to proceedings hy executors or administrators, the other to proceed- ings against them. It will be convenient to deal with these statutes in two sections. And first we shaU mention a statute which, although it did not originally contain any reference to the procedure by summons, has been by a recent Act made available by that procedure, and therefore falls properly within the first section. Section 1, Summons by Executors or Administrators. By the 19th section of the Act which instituted the proceeding byway of" Special Case,"* executors or administrators were enabled at the end of a year after the death of their testator or intestate, to obtain an order on motion or petition of course, for a refer- • 13 & 14 Vict. c. 35. ADMINISTRATION. 243 ence to the Master, to take an account of the debts and liabilities affecting the personal estate of the de- ceased ; and by the six following sections, provision is made for appealing to the Court from the Master's decision allowing or disallowing any debt or claim, and for appropriating any part of the assets to answer contingent liabilities, and for protecting the executors or administrators in the general disposition of the assets. Executors or administrators can now obtain this order by a summons at chambers, and without waiting for a year from the death of the deceased; for by an Act passed in 1860* it is pro- vided, that " the order to take an accoimt of the " debts and Habilities affecting the personal estate " of a deceased person, pxursuant to the 19th section " of the Act of the 13th and 14th years of Victoria, " chapter 35, may be made , immediately or at any " time after probate or letters of administration shall " have been granted, and such order may be made " either by the Court of Chancery, upon motion or " petition of course, or by a Judge of the said " Court sitting at chambers, upon a summons in the " form used for originating proceedings at cham- " bers :" and the section concludes with the follow- ing important sentence : — " Any notices for creditors " to come in, which may be published in pursuance " of any such order, shall have the same force and " effect as if such notices had been given by the exe- " cutors or administrators in pursuance of the 29th " section of the Act of the 22nd and 23rd years of * 23 & 24 Vict. c. 38, s. 14. m2 244 ADMINISTRATION. " Victoria, chapter 35 " (on wMch statute some re- marks will be found hereafter). It will be seen,, on comparing the above-quoted section with the enactments of the previous statute, that there is some little conflict between them, but it is presumed that their combined effect is, that after the order has been obtained for taking the account, and the time limited in the notices for creditors to send in their claims has expired, the executors or ad- ministrators will, in distributing tTie assets, be safe from the demands of all claimants except those whose claims they have had notice of, and have not paid, or, if such claims be contingent, have not provided for by appropriation of assets.* Of course there will be now no reference to the Master, but the order will simply be, " that an ac- count be taken,"t etc. Before concluding this section, it is right to draw attention to a statute which, although it has no re- ference to the jurisdiction of the Court of Chancery, is yet sufficiently connected with the subject of this section to require notice here. This statute was passed in 1859,:i: and (sect. 29) enables executors or administrators by the simple process of issuing ad- vertisements in the newspapers, without any applica- tion to the Court whatever, to obtain the same pro- tection in distributing the assets in their hands, as would be given them by a decree or order of the Court. The enactment is as follows: — "When an • See 13 & 14 Vict. c. 35, ss. 23, 25. t See Ke Catling, 9 Ha. AppencUx 7. j 22 & 23 Vict. c. 35. ADMINISTEATION. 245 " executor or administrator shall have given such or " the like notices* as in the opinion of the Court in " which such executor or administrator is sought to " be charged, would have been given by the Court " of Chancery in an administration suit for creditors " and others to send in to the executor or adminis- " trator their claims against the estate of the testator " or intestate, such executor or administrator shall, at " the expiration of the time named in the said notice " or the last of the said notices for sending in such " claims, be at liberty to distribute the assets of the " testator or intestate, or any part thereof, amongst " the parties entitled thereto, having regard to the " claims of which such executor or administrator has " then notice, and shall not be liable for the assets " or any part thereof so distributed to any person of " whose claim such executor or administrator shall " not have had notice at the time of distribution of " the said assets or a part thereof, as the case may " be : but nothing in the present Act contained shall " prejudice the right of any creditor or claimant to " follow the assets or any part thereof into the hands " of the person or persons who may have received the " same respectively." Upon this Act it is sufficient to remark, that it is extensively used by executors and administrators (as may be seen by a glance at the daily newspapers), and seems likely to supersede the employment of the previous Act (13 & 14 Vict. c. 35) in aU cases where there are no claims or liabilities of a doubtful or con- • See 35th Cons. Ord. rules 35— ST. 246 ADMINISTKATION. tingent nature, in the adjustment of which it may be desirable for executors or administrators to seek the aid of the Court. Section 2. Summons against Executors or Administrators. The "Jurisdiction Act" has supplied a method by which a decree for the administration of the personal estate of any deceased person may be obtained by any person claiming to be interested in that estate, whether as creditor, legatee, or next of kin.* A summons is obtained in chambers, entitled " In the matter of" [the deceased person], and also between the applicant as plaintiff and the personal represen- tative as defendant, calling upon the defendant to attend and show cause why an administration decree should not be made : a duplicate of the summons is filed in the Record and Writ Office. On the return of the summons the representative may attend, and on proof by affidavit of the claimant's interest, and of service of the summons, if necessary, 'a decree is made in the usual form for the administration of the estate. After this, proceedings are had in chambers, for taking the accounts and making the inquiries di- rected, in the same way as if the decree had been made in an administration suit regularly instituted. The above proceeding, it will be observed, applies only to the personal estate : no decree for the admi- nistration of the real estate of a deceased person can be had on summons, except in the one case of its » 15 & 16 Vict. c. 86, s. 45. ADMINISTEATION. 247 having been devised to trustees for sale, wlio have power to give receipts for the proceeds of the sale : in this case any creditor or other person interested may, on summons, have a decree for the administra- tion of the realty as well as the personalty.* To enforce equitable rights against the real estate of a person who has died intestate, or who has not de- vised his realty to trustees for sale, recoiu?se must be had to a suit regularly commenced by biU. • 15 & 16 Vict. ^. 86, =. 47. ( 248 ) CHAPTER VI. MISCELLANEOUS SUMMARY JUKISDICTION. Theke remain some cases where the Court has a summary jurisdiction, which cannot well be reduced to one head. It wiU be suiJScient here to mention that a statute of William III.* gave jurisdiction over awards to the Chancery concurrently with the Courts of Common Law; and that other cases f exist in which the Court has a summary jurisdiction, but which are deemed not of sufficient importance to call for any notice here. The jurisdiction with re- gard to Solicitors, Charities, Joint Stock Companies, and Registration of Titles, must be examined more at length. Section 1. Solicitors. The authority exercised by the Court in superin- tending the conducj; of solicitors is twofold : it partly arises under the general statute | passed in 1843, for consolidating and amending several of the laws re- lating to attorneys and sohcitors; and partly from the consideration that all solicitors are regarded as • 9 & 10 Will. 3, c. 15; and see Heming v. Swinnerton, 2 Phil. 79. t See S & 6 WiU. 4, c. 76, s. 71 ; and see 3 My. & Cr. 239, and 27 Bea. 214. J 6 & 7 Vict. c. 73, amended by 23 & 24 Vict. c. 127. MISCELLANEOUS SUMMAET JURISDICTION. 249 officers of the Court, and as such liable to animad- version for any misconduct in their office. It is well known that persons are admitted to be attorneys after having served under articles to some attorney for five years, or iu certain cases for three years,* and having passed an examination ; and it is the usual course, that as soon as they have been ad- mitted attorneys they should apply to be admitted solicitors, which is done by the Master of the EoUs as a matter of course ; but penalties are incurred if any person, though admitted, practise as an attorney or solicitor without having procured an annual certi- ficate fi-om the Stamp Office. In cases of flagrant misconduct in the exercise of his profession, a soKcitor wiU be struck of the roUs, and thereby disabled from longer practising. This is done on petition entitled in the matter of the soli- citor in question, unless indeed the misconduct have occurred with reference to any suit, in which case the petition wiU be in that suit. To support such an application, it is essential that professional mis- conduct should be alleged and proved. We have seen in what manner the Court guards against solicitors demanding and obtaining exorbi- tant amounts, when their bill has to be paid by some person, party to a suit, who is not their client. A similar protection is afibrded for clients. To give time for the client to consider the expediency of re- sorting to this protection, it is enacted, that no action can be maintained for the amount of a solicitor's biU * 23 & 24 Vict. c. 127, ss. 2 and i. M 5 250 MISCELLANEOUS SUM3LVEY JUKISDICTIOX. until one month after a copy signed by the solicitor has been dehvered to the cHent : if the client please, he can at any time procure an order for the sohcitor to dehver such a signed biU, and can also have an order of course within one month from delivery, and after one month and within twelve months from de- livery an order ex parte for referring this bill to one of the Masters for taxation : this taxation is pro- ceeded with in a manner similar to that already de- scribed- In general a bill cannot be referred for taxation after payment ; but if the bill was paid owing to fraud or pressure,* the order for taxation may be obtained even after payment, on application, stating the specific items which are considered frau- dulent, and the circumstances constituting the fraud or pressure under which the payment was made. This application will now be by summons at cham- bers, and not by petition as heretofore.f So an order for taxation cannot in general be obtained afl«r the lapse of twelve months from the delivery of the signed bill; but in this case also special J circum- stances will induce the Court to make the ocder. In general, the costs of the taxation of any bill are borne by the solicitor, in ease the deductions amount to one-sixth of the whole sum charged. Besides the personal liability of his client, the solicitor has often other securities. Thus when the costs are made payable out of a ftmd in Court they • See Re Kinneir, 5 Jnr., N. S. 423; Be Foster, 6 Jur., N. S. 687 ; Re Sladden, 10 Bea. 488. t See Order of 17th April, 1867. J See Re Hook, 10 W. R. 116; and see Re Harper, 10 Bea. 284. MISCELLANEOUS SUMMARY JURISDICTION. 251 are ordered to be paid to the solicitor himself, and thus he will secure them, although his client be in- solvent : and, moreover, the solicitor has a lien for his costs on the papers in the cause, which he will not be required to deliver up until his lien is dis- charged : and also, in case the client recover any money in the suit, the solicitor has a lien* on this fund for his costs of the suit, and can obtain a stop order for the purpose of enforcing it : nor will the client be allowed to defeat this hen by any agree- ment with his adversary, behind the back of the solicitor. It will be seen that this lien extends only to cases where there is a fund in Court belonging to the client ; but now by the 28th section of the Amendment Aetf (23 & 24 Vict. c. 127) the Courts of Law and Equity have power to declare a soKcitor entitled to a charge upon property of any nature or tenure recovered or preserved by his means in any suit or matter, for his taxed costs of or in reference to such suit or matter, and the Courts are further empowered to make orders for payment of such costs out of such property. Section 2. Charities. The Court of Chancery has for centuries exercised a jurisdiction over charities, and entertained suits on * See Skinner v. Sweet, 3 Madd. 244; Turwin v. Gibson, 3 Atk. 719. t See Bonser v. Bradshaw, 9 "W. R. 229, and 4 Gi£B. 260; Ex parte Thompson, 3 L. T., N. S. 317; Wilson v. Konnd, 12 W. R. 402 ; Haymes v. Cooper, ibid. 539 ; Wilson v. Hood, 10 L. T., N. S. 345; Bailey v. Birchall, 2 Hem. & Mil. 371. 252 MISCELLANEOUS SUMJLARr JURISDICTION. their behalf. The most regular and formal mode of eommencing such a suit is by bill or information, in which the Attorney-General, in his official capacity, is plaintiff; but the expense of a suit may be dis- pensed with in cases coming within an Act known as "Sir Samuel Komilly's Act,"* which authorizes any two or mca-e persons, with the previous sanction of the Attorney-General, to obtain the aid of the Court of Chancery on behalf of any charity by peti- tion, in a summary way. This Act, however, is somewhat limited in its ope- ration,! ^^^ i^ 1853 the whole subject of charities and charitable trusts underwent revision, which re- sulted 'in the passing of " The Charitable Trusts Act, 1853."$ By this Act a Board of four Commissioners, called "the Charity Commissioners," was estabUshed, with ample powers for inquiring into the nature, ob- jects, condition, and management of charities, and for giving advice and directions for the administra- tion of charity ftmds, and for authorizing leases, sales, and exchanges of charity lands; and in any case where the annual income of a charity exceeds £30, § apphcations on its behalf may be made to and disposed of by a Chancery Judge at chambers (a summons being taken out for the purpose), the Judge having a discretion to refuse to proceed on such ap- plication, if he thinks the case would be more fitly dealt with by biU, information, or petition. But in • 52 Geo. S, c. 101. + See Phillipotfs Charity, 8 Sim. 389. J 16 & 17 Vict. c. 137 (amended by 18 & 19 Vict. c. 124, and 32 & 33 Vict. c. 110). See also 25 & 26 Vict. c. 112. § 16 & 17 Vict. c. 137, 8. 28; and see 4l3t Cons. Ord. mle 10. MISCELLANEOUS SUMlIAnY JUEISDICTIOX. 253 no case, except where the Attorney-General,* acting ex officio, takes the initiative, can any proceedings be taken in Chancery on behalf of any charity, until the sanction of the Charity Comnaissioners (evinced by their certificate to that effect) has been obtained.! Another important statute,J known as " The Cha- ritable Trusts Act, 1860," has greatly extended the jurisdiction and powers of the Commissioners, by authorizing them, on the application of parties inte- rested on behalf of a charity, to make such orders as might be made by a Chancery Judge at cham- bers with reference to the subject of the application; such orders to be subject to an appeal§ to the Court of Chancery. The Commissioners may decline to exercise this jurisdiction in any case which, by reason of its contentious character, or of any special ques- tions of law or fact involved in it, may seem to them more suitable for the adjudication of a Judicial Court. II Moreover, where the annual income of the charity exceeds £50, the application to the Commissioners must be made by the trustees or persons acting in the administration of the charity, or a majority of them.H The decrees and orders made by the Court in charity cases of course vary with the nature of the • 16 & 17 Vict. c. 137, s. ,18. t Ibid. 3. 17. J 23 & 24 Vict. c. 136. § Ibid. s. 8. II Ibid. s. 5. ^ Ibid. 3. 4. See al30 the Charitable Trustees Incoi-poration Act, 1872, 35 & 36 Vict. c. 24. 254 JnSCELLAXEOUS SUilMAET JUEISDICTION. relief sought, but some special notice is required of those cases where the Court orders what is called a " scheme" to be prepared. Cases not unfrequently come before the Court where, from the neglect of the charitable donor to designate clearly the objects of his bounty* (though his general intention in favour of a charitable purpose is apparent), or from the increase of the income of the property originally devoted to the charity, or from the failurej of the original objects of the charity, or from a change produced by lapse of time in the scope and usefiilness of the charity, the trustees of property devoted to charitable purposes seek the aid and direction of the . Court in the execution of their trust ; in these cases the practice of the Court is to sanction a scheme for the guidance of the trustees in the ftiture management of the property. If the application be made in a suit, the order will be for a reference to chambers to approve of a scheme, and the parties will submit proposals to the Chief Clerk, who will embody in his certificate^ the scheme approved of by him. If the scheme be also approved of by the Attorney-General and the Judge, the latter will sign the certificate in the usual way, and it will then, unless discharged or varied, be filed§ in the Keport Office, and become binding on all par- • See Moggridge v. Thackwell, 7 Ves. 69. f See Att.-Gcn. v. Ironmongers' CJompany, 2 My. & K. 576 ; and see Philpott v. St. George's Hospital, 27 Bea. 107. t See 27 Bea. 108. § See Tripp's Chancery Forms, 205. Miscellaneous summary jueisdiction. 255 ties, and the scheme will be formally confirmed by an order similar to an order made on further con- sideration. If the original application be made in chambers, the whole proceedings will be carried through in chambers,* unless any point arise which necessitates an adjournment into Court. Section 3. Winding-up of Companies. A fiirther and important branch of the summary jurisdiction of the Court of Chancery is that relating to the winding-up of Joint Stock Companies. To wind up partnerships has always been a matter of exclusively equitable cognizance, on account of the rule of the Common Law forbidding one partner to sue another in respect of partnership transactions, and on account of the comphcation of the accounts which in almost all cases would have to be taken, and which Courts of Equity have greater facilities of taking than Courts of Law. But to a suit in Chan- cery aU the partners were necessary parties ; and when joint stock companies became common, it was found to be practically impossible to carry through a suit, in which all the shareholders, to the number perhaps of several hundreds, were served with the bill or subpoena, and had to put in answers. Hence, in 1 848,t a summary power was given to the Court of Chancery to make an order for winding-up, on • See 10 Ha. App. 5. t 11 & 12 "Vict. c. 45, amended by 12 & 13 Vict. c. 108; both now repealed. 256 MISCELLANEOUS SUMMARY JUKISDICTION. petition entitled in the matter of the particular com- pany, and of the Act: this order has the effect of an ordinary decree in a partnership suit, and under it accounts are taken, and the shareholders are com- pelled to contribute whatever may be necessary for payment of the creditors, in case the assets of the company are insufficient. For this purpose lists are made out and settled by the Chief Clerk, of the per- sons liable, called contributories, with the number of shares for which each is liable: and calls are from time to time made on the contributories, pay- ment of which is enforced in the same manner as if ordered by decree. Questions continually come be- fore the Court as to the liability of particular per- sons, on applications to vary these lists, as settled by the Chief Clerk. The matter of winding-up is now regulated by an Act of Parliament* passed in 1862, the short title of which is " The Conjpanies Act, 1862," and by " The Companies Act, 1867."t By the former Act the Court of Chancery has jurisdiction over the winding- up of all companies registered in England, except mining companies working within the jurisdiction of the Court of the Stannaries. The Act provides three modes of winding-up, viz. : ( 1) a compulsory winding- up, under the absolute control of the Court; (2) a voluntary winding-up by the company itself out of Court ; and (3) a winding-up subject to the super- vision of the Court, being partly voluntary and partly compulsory, and applicable to cases where a resolu- • 25 & 26 Vict. c. 89. t 30 & 31 Vict. c. 131. MISCELLANEOUS SUMMAEY JURISDICTION. 257 tion has been passed by a company to wind up voluntarily, but it is thought expedient that the creditors or contributories should have the advantage of an appeal to the Court from the decision of the " liquidators" conducting the winding-up ; but for all practical purposes this mode of winding-up is the same as a compulsory winding-up, except so far as the Court may, in making the order to wind up, in any way qualify or limit the extent of its supervision. We are here concerned with only the first and third of the above modes of winding-up. The petition for winding-up may be presented by the company itself, or by a creditor of the company, or by a contributory to the company, and may be opposed like any other petition. If, upon the hear- ing of the petition, a wiuding-up order be made, a person styled an "official liquidator" is forthwith appointed by the Judge at chambers for the pur- pose of carrying the order into effect, first entering into a recognizance, with two sureties, to the Master of the KoUs and the senior Vice-ChanceUor, to secure his duly accoimting for what he receives as liquidator. The Act gives the hquidator or liquida- tors (for there may be more than one, if necessary) very large powers, exercisable with the sanction of the Court. The first duty of the liquidator is to assist the Chief Clerk in settling the list of creditors of the company, and to make out and leave at the chambers of the Judge a list of the contributories, which is settled by the Chief Clerk, whose- decision may be appealed from to the Judge, and from him the higher Courts may be appealed to. Notice of 258 MISCELLAireOUS SUMMARY JTHEIISDICTION. the settling day is given to tlie contributories, and they may attend in person, by attorney or counsel, and dispute their liability. Calls are made by order of the Judge, and enforced by the same process as other orders of Court. When the winding-up is concluded, and the official liquidator has passed his final account, directions are given for vacating the recognizances of the liquidator and his sureties, and the Chief Clerk makes a certificate that the afi&irs of the company have been completely wound up ; and (if the company has not been already dissolved) an order is made at chambers, on the application of the liquidator, by which the company is formally dis- solved. A general order of Court was made in November, 1862, containing no less than seventy-seven care- fully-firamed rules for regulating the procedure under the Act; to this order is appended a schedule of the various forms used in the course of such procedure,. Upon this head reference may also be usefuUy made to Thring's " Law and Practice of Joint Stock Com- panies," and to a very practical work called " Taylor's Manual of the Winding-up of Companies." " The Companies Act, 1867," contains the follow- ing provisions which require notice in this work : — Sections 9 to 14 (inclusive) provide for the reduc- tion of capital of companies by order of the Court, made on the petition of the company for confirming the reduction. Section 40 qualifies the right of a contributory to petition for winding-up ; and sections 41, 42 and 43 empower the Court of Chancery to direct the winding-up to be had in a County Court, MSCELLANEOtlS SUMMARY JURISDICTION. 259 and to transfer it from one County Court to another ; but any party to the winding-up may appeal from the County^ Coui-t to the Vice- Chancellor on any matter arising during the proceedings.* An Actj called " The Joint Stock Companies Arrangement Act, 1870," has been recently passed, providing for the sanction by the Court of Chancery of any compromise or arrangement between a com- pany, in the course of being wound up, and its cre- ditors, or any class of them, the Court being em- powered, on the application, in a summary way, of any creditor, or the liquidator, to order that a meet- ing of such creditors, or class of creditors, shall be summoned in such manner as the Court shall direct ; and if a majority in number, representing three- fourths in value of such creditors, or class of creditors, present either in person or by proxy at sueh meeting, shall agree to any arrangement or compromise, and if the Court shall by order sanction the same, such arrangement or compromise will be binding on all such creditors, or class of creditors (as- the ease may be), and also on the liquidator and contributories of the company. By 30 & 31 Vict. c. 127, insolvent railway com- panies may file in the Court of Chancery a scheme of arrangement with their creditors, and thereupon the Court may stay actions and process against the company ; and if within three months after the filing, or such further time as the Court allows, the di- rectors consider the scheme to be assented to as the • See General Orders of 21at March, 1868 (3 Ch. App.), and 2nd March, 1869 (4 Ch. App.). 260 MISCELLANEOUS SUMlLiET JUEISDICTIOX. Act requires by the creditors and shareholders, the directors may petition the Court to confirm the scheme, and the Court may confirm the scheme, which shall thereupon be enrolled in Court, and have the force of a statute. Several Orders and Rules were issued on the 24th January, 1868, to carry out this Act.* There is an Act called " The Liquidation Act, 1868,"t which, though of limited application, as it only affects liquidations pending at the time of its passing, must not be passed over. The Act pro- vides, that if in any case of bankruptcy, arrange- ment or winding-up within the Act, it appears to the liquidators (which term includes assignees in a bankruptcy, trustees or inspectors, or other persons acting on behalf of a debtor and his creditors under an arrangement, or official or other liquidators in a winding-up) that it will be for the benefit of the estate in liquidation that any part of the assets thereof should be divided in specie, or be otherwise disposed of without sale, they may prepare and file in the Court of Chancery a scheme in that behalf, and after due notice of the filing has been published and given, the liquidators may apply to the Court in a summary way (which will be by petition) for con- firmation of the scheme, and the Court may confirm the same, with or without alteration or addition, and * See 3 Law Rep., Ch. App., and Re Cambrian Railways Com- pany's Scheme, ibid. 278, and Re Bristol and North Somerset Rail- way Company, 6 Law Rep., Eq. 448. t 31 & 32 Vict. c. 68. MISCELLANEOUS SUMMAKY JURISDICTION. 261 thereupon it will become binding, but the Court may have regard to the wishes of the creditors, or of separate classes of creditors, and direct meetings of creditors, or of classes of creditors, to be summoned and held.* Section 4. Registration of Titles. In this Section ive propose to give a brief sketch of two statutes passed in 1862, both of which give considerable jurisdiction to the Court of Chancery. One of these statutesf is entitled " An Act to facili- tate the Proof of Title to, and the Conveyance of, Eeal Estates," and the other| is known as " The Declaration of Title Act, 1862." The firstly-named Act establishes an Office of Land Registry, and provides for the appointment of a Chief Eegistrar and assistant registrars, and ex- aminers of title, whose duty it is to investigate all titles brought before them, with a view to the regis- tration thereof as indefeasible ; and any question or dispute which may arise in the course of such in- vestigation, or in the process of registration, may be referred to a Chancery Judge ; and, moreover, by the second part of the Act it is provided, that the Court of Chancery may, upon the application of any person empowered by the Act to apply for regis- * See General Order of 29th April, 1869 (4 Ch. App.) t 25 & 26 Vict. c. 53. : 25 & 26 Vict. c. 67. 262 MISCELLANEOUS SUM5IAET JURISDICTION. tration of title, carry out sales of land witli an indefeasible title. Sucli application may be made by summons at chambers, or by petition ;* but the Judge may direct a bill to be filed ; an order made by the Judge may be appealed from in Kke manner as decrees made by the Court of Chancery. The sale is carried out by a vesting order, whereby the land is vested in the purchaser without the trouble and expense of a conveyance ; and the Court deter- mines the rights of the persons entitled or claiming to be entitled to the purchase-money. The secondly-named Actf empowers the Court, upon the application by petition of any person claim- ing to be entitled to land (not being copyhold) in. possession for an estate in fee simple, or to have a power of disposing of the fee simple for his own benefit, or of any person entitled to apply for the re- gistration of an indefeasible title imder the firstly- named Act, to make a declaration that the petitioner has an indefeasible title to the land in question, or rather (for this is the effect of the declaration) that he can convey the land to a purchaser for value, so that such purchaser shall be indefeasibly entitled thereto. J The preliminary order, however, upon the hearing of the petition, will be for an investigation of the title, if the petitioner has shown a prima facie case, and the final order or declaration will not be made unless the result of such investigation be satisfac- • See sects. 41 and 134 of the Act. t. 25 & 26 Vict. c. 67. 1 See sect. 24 of Act. • MISCELLANEOUS SUMMARY JURISDICTION. 263 toiy to the Court.* At any time ■within six montlis from, tlie making of such declaration an appeal may be made to the Court of Appeal, and at any time ■within six months from the making of an order of the latter Court an appeal may be made therefrom to the House of Lords. • Re Eoberts, 10 Law Rep., Eq. 402. ( 264 ) CHAPTER VII. EQUITABLE JURISDICTION OF THE COUNTY COURTS. In this Chapter a few remarks wiU be made on a recent statute* which, with the laudable desire of supplying speedy and cheap remedies to persons wishing equitable relief, has invested the County Courts with the powers of the Court of Chancery in the following cases, viz. : — (1.) In all suits by credi- tors, legatees (whether specific, pecuniary, or re- siduary),' devisees (whether in trust or otherwise), heirs-at-law .or next of kin, in which the personal or real or personal and real estate against or for an account or administration of which the demand may be made, shall not exceed in amount or value the sum of £500. (2.) In all suits for the execution of trusts, in which the trust estate or fund shall not exceed in amount or value the sum of £500. (3.) In all suits for foreclosure or redemption, or for en- forcing any charge or lien, where the mortgage, charge or lien shall not exceed in amount the sum of £500. (4.)t In aU suits for specific performance of, or for the reforming, delivering up, or canceUing any agreement for the sale, purchase, or lease of any property, where in the case of a sale or purchase the » 28 & 29 Vict. t. 99, amended by 30 & 31 Vict. c. 142. t This head is taken from the Amendment Act, sect. 9. EQUITABLE JURISDICTION OF COUNTY COURTS. 265 purchase-money, or in case of a lease the value of the property, shall not exceed the sum of £500. (5.) In aU proceedings under the Trustees Relief Acts, or under the Trustee Acts, or under any of such Acts, in which the trust estate or fond to which the proceedings relate, shall not exceed in amount or value the sum of £500. (6.) In aU proceedings relating to the maintenance or advancement of in- fants, in which the property of the infant shall not exceed in amount or value the sum of £500. (7.) In all suits for the dissolution or winding-up of any part- nership ia which the whole property, stock, and cre- dits of such partnership shall not exceed in amount or value the sum of £500. (8.) In aU proceedings for orders iu the nature of injunctions, where the same are requisite for granting rehef in any matter in which jurisdiction is given by this Act to the County Court, or for stay of proceedings at law to recover any debt provable under a decree for the admi- nistration of an estate made by the Court to which the application for the order to stay proceedings is made. By section 9 of the Act it is provided, that if in the progress of a suit or matter in the County Court it appears that the subject of the suit or matter ex- ceeds in value £500, the proceedings shall be trans- ferred to the Court of Chancery (but without pre- judice to any order already made by the County Court), and, by section 18, an appeal is given to one of the Vice-Chancellors* from decisions of the • At present Vice-Chancellor Malins. L. N 266 EQUITABLE JURISDICTION OF COUNTY COUETS. County Courts on any matter of law or equity, or on the admission or rejection of evidence, which appeal is to be made by means of a case stated for the opi- nion of the Vice-Chancellor* by the County Court Judge. In the same year (1865) in which the Act was passed, some elaborate Orders were issued for regulat- ing the practice and procedure under it, and in the Schedule to the Orders are contained numerous forms of plaints and other proceedings. Orders, etc., for the guidance of suitors. This Act has been held in a recent casef not to oust the jurisdiction of the Court of Chancery, but to give the County Courts concurrent jurisdiction with the superior Court, and in a case where the matter was clearly within the jurisdiction of the County Court, the Vice-Chancellor Stuart refiised to order a suit commenced in his Court to be transferred to the County Court,f observing that every plaintiff had a right to select his own tribunal, but it seems that ia such a case the plaintiff (if successful) will only be allowed such costs as he would have obtained in the Comity Court.§ Before leaving this subject we may remark that the Amendment Act before referred to (30 & 31 Vict. c. 142), provides (sections 24 and 25), that • See Slatteiy v. Axton, 14 W. R. 511, and Cox v. Slater, 14 W. R. 665, t Scotto V. Heritage, 3 Law Rep., Eq. 212. t Picard v. Hine, 18 Law Times, N. S. 705. The Act 30 & 31 Vict. c. 142, a. 8, authorizes snch a transfer in the discretion of the Judge. § Simons i>. M'Adam, 6 Law Rep., Eq. 324. EQUITABLE JURISDICTION OF COUNTY COURTS. 267 trustees may place trust funds (not exceeding £500) under the care of a County Court by paying them (if in cash) into a Post-OflSce Savings-Bank in the name of the Registrar of the Court, or transferring them (if stocks or securities) into the names of the Registrar and Treasurer. This payment or transfer must be accompanied by an affidavit of the trustees describing the instrument creating the trust, and the County Courts have the same power as is vested in the Court of Chancery by the Act 12 & 13 Vict. c. 74, of ordering such payment or transfer on appli- cation of the majority of the trustees. The cash so paid in is (sect. 26) to be invested by the Registrar in a Post-Office Savings-Bank within forty-eight hours after it has been paid into Court, unless the Court shall otherwise order. n2 ( 269 ) APPENDIX. I. BILLS. 1. Bill seeking an Injunction and Foreclosure. IN CHANCERY. EorU Ci^ancrtlor. ■Fiff^CpntcIIor JlHaltns. Between John HoLFORD and 1 p, ■ ,ff . EicHAED Davis . . 1 and Henry Hawes . . Defendant. }3tII of Complaint. To the Right Honorable Rohndell Baron Selborne, of Selborne, in the County of Southampton, Lord High Chancellor of Great Britain. Humbly complaining, show unto his Lordship, John Holford, of No. 57, Bedford Street, in the county of Middlesex, Esquire, and Eichard Davis, of Coleman Street, in the City of London, gentlemen, the above- named plaintiffs, as follows : — 1. The above-named defendant, Henry Hawes, being seised in fee simple of a house and premises, being No. 9, King Street, Hackney, in the county of Middlesex, by 270 APPENDIX. indenture bearing date the first day of June, 1864, and duly made and executed between and by the said defend- ant of the one part, and Henry Baker 'of the other part, for the considerations therein mentioned, granted the said house and premises unto and to the use of the said Henry Baker and his heirs; subject nevertheless to a proviso in the indenture now in statement contained for redemption and reconveyance of the said house and premises, on payment by the said defendant, his heirs, executors, administrators, or assigns, to the said Henry Baker, his executors, administrators, or assigns, of the sum of one hundred pounds, with interest thereon from the date of the said indenture, after the rate of five per centum per annum, on a day in the said indenture named (in which payment default was made), as by such inden- ture when produced will appear. 2. The said Henry Baker died on the seventh day of May, 1867, having by his will, bearing date the tenth day of January, 1867, devised to the plaintiffs and their heirs all estates vested in him by way of mortgage, and having appointed the plaintifis to be his executors, and the said will was on the first day of July, 1867, proved by the plaintifis in the Principal Kegistry of her Majesty's Court of Probate, and the plaintifis thereby became, and now are, the legal personal representatives of the said Henry Baker. 3. The defendant has from time to time made various small payments on account of interest due on the said indenture of mortgage of the first day of June, 1864, but a large arrear of interest, together with the whole of the said principal sum of one hundred pounds, is due and owing to the plaintiffs as such personal representatives as aforesaid, on the security of the said indenture. 4. On the seventh day of April, 1873, the plaintifis APPENDIX. 271 discovered that the defendant intended to pull down the said house, and that he had advertised the bricks com- prising the same to be sold as building materials, and had entered into a contract with one John Smithers for the execution of the work of pulling down the same. 5. If the said house be pulled down, the said premises will be an insufficient security to the plaintiffs for the money due on the said mortgage security. PRAYER. The plaintiffs pray as follows : — 1. That an account may be taken of what is due for principal and interest on the said indenture of mortgage. 2. That the defendant may be decreed to pay to the plaintiffs, as personal representatives of the said Henry Baker, what shall be so found due, to- gether with the costs of this suit, by a short day to be appointed for that purpose, or, in de- fault thereof, that the defendant and all persons claiming under him may be absolutely fore- closed of all right and equity of redemption in or to the said mortgaged premises. 3. That the defendant, his servants, agents, and workmen, may be restrained by the order and injunction of this Honorable Court from pulling down, or suffering to be pulled down, the said mortgaged house, and from selling the materials whereof the said house is composed. 4. That for the purposes aforesaid all necessary or proper accounts may be taken, inquiries made, and directions given. 272 APPENDIX. 5. That the plaintiffs may have such further or other relief as the nature of the case may require. Name of defendant : The defendant to this Bill of Complaint is — Henry Hawes. X. Y. (Counsel's name.) JSfote.— This bill is ffled by Mr. John Smith, of 70, Lincoln's Inn Fields, in the county of Middlesex, solicitor to the above-named plaintiffs. In this suit an injunction is moved for and obtained (see No. XXL, etc.), and afterwards interrogatories are served (see No. IV.) 2. Bill seeking to settle the Construction of a Will, and for an Administration decree. IN CHANCERY. S,ort( C!)anc£llor. TJicesCIjananor OTlicfeenS. Between John Sttles Plaintiff; and Jane Styles and Akn| ^^^^^^^^,^_ Styles 3 33ill of Complatnt. To the Eight Honorable Roundell Baeon Selborne, of Selborne, in the county of Southampton, Lord High Chancellor of Great Britain, Humbly complaining, showeth unto his Lordship John Styles, of Rosoman Street, Clerkenwell, in the county of Middlesex, watchmaker, the above-named plaintiff, as follows : — 1. Charles Styles, the elder, late of Cottenham, in the county of Cambridge, farmer, duly made his will bearing APPENDIX. 273 date the second day of February, 1868, in the words and figures following (that is to say): "I Charles Styles do, this 2nd February, 1868, will all my property to my wife Jane, to pay my debts and enjoy for her life, afterwards to go between our two children ; and I appoint her sole executrix of this my will," but for certainty the plaintiff craves leave to refer to the said will or the probate copy thereof when produced. 2. The said testator died on the fourth day of Febrijary, 1868, without having revoked or altered his said will, and the said wiU was, on the twenty-fourth day of June, 1868, proved by the defendant Jane Styles (called in the said will " my wife Jane"), in the Peterborough District Registry of her Majesty's Court of Probate. 3. The said testator left surviving him his widow the defendant Jane Styles, his daughter the defendant Ann Styles, and his son Charles Styles the younger, and no other child or issue of a child. 4. The said Charles Styles the younger died on the ninth day of February, 1868, having by his will, bearing date the twentieth day of June, 1867, appointed the plaintiff to be his executor, and the said will was on the twenty-third day of July, 1868, proved by the plaintiff in the Principal Registry of her Majesty's Court of Pro- bate, and the plaintiff thereby became and now is the sole legal personal representative of the said Charles Styles the younger. 5. The said testator Charles Styles the elder, was at the time of his death possessed of or entitled to con- siderable personal estate, much more than suflScient for payment of his funeral and testamentary expenses and debts, and the defendant Jane Styles possessed herself thereof, and sold the same and converted it into money, and thereout paid the funeral and testamentary expenses n5 274 APPENDIX. and debts of the said testator, and iavested the residue in the purchase of a large sum of Consolidated Bank Annuities, which is now standing in the name of the defendant Jane Styles in the books of such Annuities kept at the Bank of England, subject to the trusts of the said will of ihe said testator; but the plaintiff is unable to discover the exact amount of such sum of Con- soKdated Bank Annuities. 6. , The plaintiff, as such legal personal representative as aforesaid, has often applied to the defendant Jane Styles for an account of her dealings and transactions as executrix of the said testator, Charles Styles the elder, and of the actual amount bf the said trust fund, but the said defendant Jane Styles has always refused to give him any information on the subject. 7. Particularly on the tenth day of January, 1873, Mr. John Smith, of 70, Lincoln's Tnn Fields, in the county of Middlesex, solicitor to the above-named plaintiff, wrote and sent to the defendant Jane Styles a letter of that date, in the words and figures or to the purport and effect following (that is to say) : " I am instructed by Mr. John Styles, executor to your late son, Mr. Charles Styles, to ask you to furnish him with an account of your receipts and payments as executrix of your late husband, Mr. Charles Styles the elder, and particularly to request im- mediate information as to the amount of the residue of that estate, to one-half of which Mr. John Styles will be entitled on your decease, and as to the present state of investment of that amount. In the event of my not re- ceiving a satisfactory answer from you within one week from this date, I have instructions at once to commence proceedings in Chancery against you," — as by such letter when produced wiU appear. 8. No answer has been received to the said letter of the tenth day of January, 1873. APPENDIX. 275 9. The defendants sometimes pretend that, according to the true construction of the said will of the said tes- tator, Charles Styles the elder, the defendant Ann Styles and the said Charles Styles the younger became entitled to the residue of the personal estate of the said testator, after payment thereout of his funeral and testamentary expenses and debts, as joint tenants in remainder ex- pectant on the death of the defendant Jane Styles, and not as tenants in common of equal moieties of the said residue expectant as aforesaid, and that in consequence of the death of the said Charles Styles the younger in the lifetime of the defendant Ann Styles, and without having done any act to sever the said pretended joint tenancy, the defendant Ann Styles has become solely entitled by survivorship to the whole of the said residue expectant as aforesaid, and that the plaintiff has not, as executor of the said Charles Styles the younger, or other- wise, any interest in or title to such residue, or any right to call for an account thereof, or for any information con- cerning the state of investment thereof. 10. The plaintiff charges that, according to the true construction of the said will of the said testator, Charles Styles the elder, the defendant Ann Styles and the said Charles Styles the younger became entitled to the said residue as tenants in common of equal moieties thereof in remainder expectant as aforesaid, and not as joint tenants; and that on the death of the said Charles Styles the younger, the defendant Ann Styles did not become by survivorship or otherwise solely entitled to the whole of such residue in remainder expectant as aforesaid, but that the plaintiff, as executor of the said Charles Styles the younger, became entitled to one equal moiety thereof in remainder expectant as aforesaid. 11. The plaintiff further charges that the defendant 276 APPENDIX. Jane Styles ought to set forth an account of her receipts and payments as executrix of the said testator, Charles Styles the elder, and that the amount of the clear residue of the estate of the said testator ought to be ascertained and secured for the benefit of the persons entitled there- to. PRATER. The plaintiff prays as follows : — 1. That it may be declared that according to the true construction of the said will of the said Charles Styles the elder, the defendant Ann Styles and the said Charles Styles the younger became entitled to the residue of the personal estate of the said Charles Styles the elder, after payment thereout of his funeral and testamentary expenses and debts, as tenants in common of equal moieties thereof in remainder expectant on the death of the defendant Jane Styles. 2. That an account may be taken of the personal estate of the said Charles Styles the elder, come to the hands of the defendant Jane Styles, or of any person by her order or for her use, and of his funeral and testamentary expenses and debts, and that the clear balance of such per- sonal estate may be ascertained and secured for the benefit of the persons entitled thereto. 3. That for the purposes aforesaid all necessary or proper accounts may be taken, inquiries made, and directions given. APPENDIX. 277 4. That the plaintiff may have such further or other relief as the nature of the case may require. Names of defendants : The defendants to this Bill of Complaint are — Jane Styles, Ann Styles. X. Y. (Counsel's name.) iV^ofe.— This bill is filed by Mr. John Smith, of 70, Lincoln's Inn Fields, in the county of Middlesex, solicitor to the above-named plaintiff. In this snit the sole substantial question relates to the construc- tion of the will : this is raised bv the demurrer of the defendant Jane Styles. {Seepost, No. V. 1.) II. WEIT OF SUMMONS. indorsed on the copt of the bill served. Victoria E., To the within-named defendants, Jane Styles and Ann Styles, greeting : We command you and each of you, that within eight days after service hereof on you, exclusive of the day of such service, you cause an appearance to be entered for you in our High Court of Chancery to the within bill of complaint of the within-named John Styles, and that you observe what our said Court shall direct. Witness ourselves at Westminster, the second day of February, in the thirty-seventh year of our reign. Note. — If you fail to comply with the above directions, the plaintiff may enter an appearance for you, and you 278 APPENDIX. will be liable to be arrested and imprisoned, and to liave a decree made against you in your absence. Appearances are to be entered at the Record and Writ Clerks' OflBce, Chancery Lane, London. John Smith, 70, Lincoln's Lin Fields, Middlesex. HL APPEARANCE. IN CHANCERY. ^ 1 Enter an appearance for Jane Styles at the suit „ ' I of John Styles. Styles; ■' Dated the eighth day of February, 1873. Henet Jones, 21, New Square, Lincoln's Inn. IV. INTERROGATORIES. (See the BiU, No. I. 1.) IN CHANCEKT. Between John Holfoed and ] „, . . ~ Ti T~w ( Plaintiffs; RiCHAED Davis . . . ) •" and Henet Hawes .... Defendant. Interrogatories for the examination of the above-named defendant in answer to the bill of complaint of the above- named plaintiffs. 1. Was not the defendant on the first day of June, 1864, seised in fee-simple of the house and premises being No. 9, APPENDIX. 279 King Street, Hackney, in the county of Middlesex, or how otherwise ? 2. Was not such indenture as in the first paragraph of the said bill of complaint is mentioned to bear date the first day of June, 1864, of such date, and made between, and whether or not executed by, the parties, and of or to the purport and efiect in the said bill in that behalf mentioned, or of some other and what date and to some other, and what purport and efiect, or how otherwise ? Was not default made in the payment of the sum of one hundred pounds and interest on the day in the said in- denture named or how otherwise ? 3. Did not Henry Baker in the said bill named die on the seventh day of May, 1867, or how otherwise? and whether or not having by his will, bearing date the tenth day of January, 1867, or some other and what date, de- vised to the plaintiffs and their heirs aU estates vested in him by way of mortgage, and appointed the plaintiff's to be his executors, or how otherwise ? Was not the said wUl, on the first day of July, 1867, or when in fact, proved by the plaiutiffs in the Prrucipal Registry of her Majesty's Court of Probate, or where was the same proved, and by whom ; and did not the plaintiff's thereby or in fact become, and are they not now, the legal per- sonal representatives of the said Henry Baker, or how otherwise ? 4. Has not the defendant from time to time made various, and what, small payments on account of interest due on the said indenture in the said biU mentioned? Set forth a full, true, and particular account of all such payments, and of the times when they respectively were made. Is it not the fact that a large arrear of interest, and whether or not together with the whole, or together vdth some, and what part of the principal sum secured 280 APPENDIX. by the said indenture, is due and owing, and whether or not to the plaintiffs as such personal representatives as aforesaid, on the security of the said indenture, or how otherwise ? 5. Did not the plaintiffs on the seventh day of April, 1 873, discover, and is it not the fact, that the defendant intends to pull down the said house in the said bill men- tioned, and has he not advertised the bricks composing the same to be sold as building materials ; and has he not entered into a contract with one John Smithers, or with some other, and what, person or persons for the execu- tion of the work of pulling down the same ? 6. Is it not the fact that if the said house be puUed down, the said premises will be an insufficient security to the plaintiffs for the money due on the said mortgage security or how otherwise, and how does the defendant make out the contrary ? The defendant is required to answer all the foregoing interrogatories. X. Y. (Counsel's name.) The defendant's answer to these interrogatories will be fonnd. No. vn. V. DEMURRERS. 1. Demurrer for Want of Equity to Bill given already. No. I. 2. IN CHANCERY. Between John Styles Plaintiff; and Jane Styles and Ann ] Styles .... The demurrer of the above-named defendant Jane [ Defendants. APPENDIX. 281 Styles to the bill of complaint of the above-named plaintiff. This defendant, by protestation, not confessing or acknowledging all or any of the matters or things in the said bill of complaint contained to be true in such manner and form as the same are therein set forth and alleged, doth demur to the said bill. And for cause of demurrer showeth, that it appears by the plaintiff's own showing by the said bill, that he is not entitled to the discovery or relief prayed by the bill against this defendant. Wherefore, and for divers other good causes of demurrer appearing on the said bill, this defendant doth demur thereto. And she prays the judgment of this Honor- able Coui't whether she shall be compelled to make any answer to the said biU ; and she humbly prays to be hence dismissed with her reasonable costs in this behalf sustained. X. Z. (Counsel's name.) We suppose this demnrrer to he overniled on argument, and the plaintiff, not requiring any discovery, moves for a decree. (See No. X.) 2. Demurrer for Want of Parties. That it appears by the said bill that there are divers other persons who are necessary parties to the said bill, but who are not made parties thereto. And in particu- lar it appears that the said C. D. has been duly adjudi- cated a bankrupt, and trustees of his estate and effects have been duly appointed ; and that it appears by the said bill that such trustees are necessary parties to the said bin ; but that such trustees are not made parties thereto. Wherefore, etc. 282 APPENDIX. 3. Demurrer for Multifariousness. That the said bill is exhibited against these defendants, and against several other defendants to the said bill, for several and distinct and independent matters and causes which have no relation to each other, and in which or in the greater part of which these defendants are in no way interested or concerned, and ought not to be implicated. Wherefore, etc. VI. PLEAS. 1. Plea that Defendant is not such personal Representative as alleged. IN CHANCERT. Between A. B Plaintiff; and C. D. and E. F Defendants. The plea of the above-named defendant C. D. to the bill of complaint of the above-named plaintiff. I, the defendant C. D.,* by protestation, not confessing or acknowledging all or any part of the matters or things in the said bill of complaint mentioned to be true in such manner and form as the same are therein set forth and alleged, do plead thereto, and for plea say, that I am not the executor or administrator or the legal personal re- presentative of G. H. as in the said bill alleged, which said representative or representatives ought to be made " a party or parties to the said bill as I am advised; all which matters and things I aver to be true, and plead the same to the said bill, and humbly crave the judgment • Pleas may be either in the first or third person. APPENDIX. 283 of this Honorable Court whether I ought to be compelled to make anj further or other answer to the said bill. X. Z. (Counsel's name.) 2. Plea that Plaintiff' is an Alien Enemy. That the said plaintiff is an alien, born in foreign parts, out of the jurisdiction of our Lady the Queen, (that is to say) in St. Petersburg, in the empire of Russia ; and that the said plaintiff long before and at the time of exhibiting his said bill of complaint against this defendant was and is an enemy of our lady the Queen, voluntarily inhabiting and dwelling and carrying on trade within the empire of Russia, and within the alle- giance of the Emperor of Russia, who was and still is at war with and the enemy of our lady the Queen, and that the said plaintiff was and still is adhering to the said enemy. VII. ANSWER. (The interrogatories to which the replies are here given will be found ante. No. IV.) IN CHANCEET. Between John Holford and ) Richard Davis and Henrt Hawes . . Defendant. The answer of the above-named defendant to the bill of complaint of the above-named plaintiffs. In answer to the said bill, I, Henry Hawes, say as follows : — 1. I admit that I was on the first day of June, 1864, seised in fee-simple of the premises in the first para- l Plaintiffs; 284 APPENDIX. graph of the said bill mentioned. And I admit that the indentm'e in the said first paragraph of the said bill mentioned was of such date, and made between such parties as in the said first paragraph of the said bill alleged, and that the same was executed by me. I believe that the said indenture was not executed by Henry Baker in the said bill mentioned. I believe that the said in- denture was of or to the purport and efiect in the said first paragraph of the said bill in that behalf set forth ; but for my greater certainty I crave to refer to the same when produced to this Honorable Court. 2. I do not know and cannot set forth as to my belief or otherwise, whether the said Henry Baker died on the seventh day of May, 1 867, or when he died ; nor whether or not having by his will and whether or not dated the tenth day of January, 1867, or of what other date, devised to the plaintiffs and their heirs, all estates vested in him by way of mortgage, or appointed the plaintiffs to be his executors ; nor whether the said will was or not on the first day of July, 1867, or when in fact, proved by the plaintiffs in the Principal Registry of her Majesty's Court of Probate or how otherwise; nor whether the said plaintiffs thereby or in fact became, nor whether they now are, the legal personal representatives of the said Henry Baker ; but I have no reason to doubt that the facts are as in that behalf alleged in the said bill. 3. The said Henry Baker was a bachelor, without any near relations, and for many years previously to the year 1 864, and thenceforward to his death, he suffered from continued ill-health and infirmity. My mother, Sarah Hawes, was in the service of the said Henry Baker as housekeeper from the year 1855 down to the time of the death of the said Henry Baker, and was in continual attendance upon him ; and the said Henry Baker APPENDIX. 285 frequently expressed to my said mother his gratitude for her attention to his comfort in that his illness. 4. I attained my age of twenty-one years in the year 1864. In the early part of that yeai" my said mother applied to the said Henry Baker to advance me the sum of £100 to enable me to enter business, which he agreed to do on baring the repayment thereof ■with interest secured by the said indenture of the first day of June, 1864. 5. In the month of May, 1864, the said Henry Baker wrote, signed, and sent to me a letter bearing no date, containing the words and figures following (that is to say): "AU is arranged about the security you are to " give me. I hope I shall never have occasion to eaforce " it ; and that nothing will compel me to change my in- " tention of rewarding your mother and yourself for her " long and faithful services to me," — as by such letter when produced will appear. 6. I have never made any payments whatsoever on account of interest due on the said indenture, and I was never called upon to pay interest thereon by the said Henry Baker in his lifetime. 7. My said mother died on the twenty-seventh day of December, 1867. 8. Under the circumstances hereinbefore appearing I submit that nothing is due on the said indenture from me to the plaintifis, whether as such alleged personal representatives or otherwise, but I admit that nothing has ever been paid on account of the principal money secured thereby. 9. I do not know, and cannot set forth, as to my belief or otherwise, whether the plaintiffs did on the seventh day of April, 1873, discover, but I admit that it is the fact, that I intend to pull down the said house in the said 286 APPENDIX. bill mentioned,, and that I have advertised the bricks composing the same to be sold as building materials. I deny that it is true that I have entered into a contract with John Smithers or with any other person for the execution of the work of puUing down the same. 10. I admit that if the said house be pulled down the said premises would be an insuflScient security for the sum of £100, with interest thereon at the rate of £5 per centum per annum from the first day of June, 1864. But I submit that I have a right to puU down the said house, and to sell the bricks composing the same as building materials, and that the injunction awarded against me by this Honorable Court on the sixteenth day of April, 1873, ought to be dissolved, and that the said bill ought to be dismissed with costs. X. Z. (Defendant's Counsel.) To this answer the PlaintifEs reply (see post. No. XL). vnL DEFENDANT'S OATH TO ANSWER. Is that your name and handwriting ? You do swear that so much of this answer as concerns your own acts and deeds is true to the best of your knowledge, and that so much thereof as concerns the acts and deeds of any other person or persons therein named you believe to be true. So help you God. APPENDIX, 287 IX. AFFIDAVIT OF DEFENDANT MAKING ANSWEK EVIDENCE. IN CHANCEET. Between A. B Plaintiff; and CD Defendant. I, the above-named defendant, C. D., make oath and say: — 1. All the contents of mj Answer, sworn and ialed in this cause on the day of , are true as therein set forth, and I am desirous to read the same as evidence in my behalf at the hearing of this cause. IX.* EXCEPTIONS TO ANSWER. IN CHANCEKY. Between A. B Plaintiff; and C. D. and E. F. Defendants. Exceptions taken by the above-named plaintiff to the answer put in by the above-named defendant C. D. to the said plaintiff's bill of complaint. First Exception. For that the said defendant C. D. hath not answered and set forth according to the best and utmost of his knowledge, remembrance, information, and belief, — Whether the said testator, etc. [following the interrogatory]. Second Exception, For that the said defendant C. D. hath not in manner aforesaid set forth, — Whether, etc. In aU which particulars the said plaintiff humbly in- sists that the said defendant C. D.'s answer is altogether 288 APPENDIX. evasive, imperfect, and insufficient. Wherefore the said plaintiff doth except thereto, and humbly prays that the said defendant C. D. may be compelled to amend the same, and put in a full and sufficient answer to the said bill of complaint. X. Y. (Plaintiff's Counsel.) X. NOTICE OF MOTION FOR A DECEEE. The demurrer in Styles v. Styles is overruled : no interrogatories are filed, and no voluntary answer put in. The plaintiff moves for a decree. (See the Bill, No. I. 2.) IN CHANCERY. Betvreen John Styles Plaintiff"; and Jane Styles and Ann Styles Defendants. Take notice, that this Honorable Court will be moved before the Vice-Chancellor Sir John Wickens, on the twenty-first day of April next, or so soon after as counsel can be heard, that it may be declared that ac- cording to the true construction of the will of Charles Styles the elder, in the bill of complaint in this cause mentioned, the defendant Ann Styles and Charles Styles the younger in the said bill mentioned became entitled to such residue as in the said bill mentioned as tenants in common of equal moieties thereof in remainder ex- pectant on the death of the defendant Jane Styles. And that an account be taken of the personal estate of the said Charles Styles the elder come to the hands of the said defendant Jane Styles, or of any person by her order or for her use, and of his funeral and testamentary APPENDIX. 289 expenses and debts, and that the clear balance of such estate may be ascertained. Dated this nineteenth day of March, 1873. Yours, etc., John Smith, Plaintiff's Solicitor, No. 70, Lincoln's Inn Fields, To Mr. Henry Jones, solicitor for the defendant Jane Styles. To Mr. Thomas Crosthwaite, solicitor for the defendant Ann Styles. On the hearing of the above motion the plaintiff will read the following affidavit : — Affidavit of the said John Smith, filed the eighteenth day of March, 1873. This affidavit will verify the bill from the first to the eighth para- graphs inclasive; there being no question as to the facts, this will be sufficient to entitle the plaintiff to the decree iomiijiost, No. XV. 3. XI. EEPLICATION. IN CHANCEKT. Between A. B Plaintiff; and C. D., E. F., and G. H.. .Defendants. The plaintiff hereby joins issue with the defendant CD., and will hear the cause on bill and answer against the defendant E. F., and on the order to take the bill as confessed against the defendant G, H. In the case of Holford v. Hawes, we suppose the plaintiffs to reply to the answer given previonsly, No. VII. Evidence is then gone into and a subpoena to hear judgment served; post, No. XII. For the meaning of hearing on the order to talce the bill as con- fessed, see the Chapter on Contempt. L. O 290 APPENDIX. XII. SUBPCENA TO HEAR JUDGMENT. ViCTOEIA, etc., To Henry Hawes, greeting. We command joa that you appear before our Lord High Chancellor on the day of next, or whenever thereafter a certain cause now depending in our High Court of Chancery, wherein John Holford and Richard Davis are plaintiffs, and Henry Hawes is de- fendant, shall come on for hearing, then and there to receive and abide by such judgment and decree as shall then or thereafter be made and pronounced, upon pain of judgment being pronounced against you by default. Witness, etc. The bill and other pleadings in this canse have been already given : the decree will be found post, No. XV. 1. xni. SUBPCENA AD TESTIFICANDUM. Victoria, etc.. To greeting. We command .you that, laying all other matters aside, and notwithstanding any excuse, you personally be and appear before Mr. , one of the examiners of wit- nesses in our High Court of Chancery, at his oflRce in Rolls Yard, Chancery Lane, London, at such times as the bearer hereof shall by notice in writing appoint, to testify the truth according to your knowledge in a cer- tain cause depending in our said Court of Chancery, wherein A. B. is plaintiff, aud C. D. and others defen- dants, on the part of the [and that you then APPENDIX. 291 and there bring with you and produce, etc.], and hereof fail not at your peril. XIV. AFFIDAVIT PROVING EXHIBIT. IN CHANCERY. Between A. B Plaintiff; and C. D. and E. F Defendants. T, G. H., of etc., make oath and say, that the paper ■writing marked with the letter A, produced and shown to me at the time of swearing this affidavit, is a true copy of an entry In the Eegister Book of Baptisms kept iu and for the parish of, etc., for the year 1810, so far as relates to the baptism of the person there named, and that I did on, etc., examine the said copy or extract with the original entry in the said Register Book of which it purports to be a copy. And I say that I know and am well acquainted with Thomas Harris, the person named in the said copy or extract, and that he is the same person as Thomas Harris mentioned and referred to in the pleadings in this cause. All the facts herein deposed to are within my own knowledge. _, __ f Sworn at, etc., in the county of ' ( etc., this tenth day of April, 1858, before me, K. L., A Commissioner to administer- Oaths in Chancery in England. o2 22 92 APPENDIX, XV. DECREES AND ORDERS. 1. Decree in Foreclosure Suit. (See the Pleadings, ante, No. I., etc.) Vice-Chancellob Malins. Monday, the ninth day of June, in the thirty-seventh year of the reign of Her Majesty Queen Victoria, 1873. Between John Holpoed and 1 , . ^-^ T. T^ • f Plaintiffs; RiCHAED Davis . . ) •" and Heney Havtes Defendant. This cause coming on this present day to be heard and debated before this Court, in the presence of counsel learned on both sides, and the pleadings in this cause being opened, upon debate of the matter and the proofs in the cause [i. e. the depositions, which are the only evidence,] read, and -what was alleged by counsel on both sides, the Court doth order and decree, that the injunction awarded against the defendant, Henry Hawes, by an order made in this cause, dated the sixteenth day of April, 1873, be continued. And this Court doth order and decree that an account be taken of what is due to the plaintiffs for principal and interest on the mortgage in the pleadings mentioned, and for their costs of this suit, such costs to be taxed by the proper taxing master. And upon the defendant paying to the plaintiffs what shaU be certified to be due to them for principal, interest, and costs as aforesaid, within six months after the chief clerk of the Judge to whose Court this cause is attached shall have made his certificate, at such time and place as shall be thereby appointed, this Court doth order and APPENDIX. 293 decree that the plaintiffs reeonvey the mortgaged pre- mises free and clear of and from all incumbrances done by them or by Henry Baker in the pleadings in this cause mentioned, or any persons or person claiming by, from, or under them, or any of them, and deliver tip all deeds and writings in their custody or power relating thereto on oath, to the defendant or to whom he shall appoint. But in default of the defendant's paying to the plaintiffs such principal, interest, and costs as afore- said, by the time aforesaid, this Court doth further order and decree that the defendant from thenceforth stand absolutely debarred and foreclosed of and from all right, title, interest, and equity of redemption of, in, and to the said mortgaged premises. And in taking the said account, all just allowances are to be made ; and all par- ties are to be at liberty to apply to the Court as they shall have occasion. Under this decree the acconnts are taken, and the chief clerk certifies that £150 is dne : the defendant neglects to pay this snm : whereupon he is finally foreclosed by the following order, may on motion of course, on which the defendant does not appear. 2. Final Foreclosure. Yice-Chancellor Malins. Wednesday, the day of in the year of the reign of Her Majesty Queen Victoria, 18 . Between John Holfokd and 1 „, . ,./r ^ T^ f Plaintiffs ; Richard Davis .. ) "^ and Henry Hawes Defendant. Upon motion this day made by Mr. X. Y. of counsel 294 APPENDIX, for the plaintiffs, it was alleged that by the decree made at the hearing of this cause, dated the niath day of June, 1873, it was ordered that an account be taken of what was due to the plaintiffs on the mortgage in the pleadings mentioned, and to tax them their costs of this suit : that in pursuance of the said decree the chief clerk made his certificate, dated the 2nd day of December, 1873, and thereby certified that there would be due to the plaintiffs for principal, interest, and costs on their said mortgage, on the second day of June, 1874, the sum of £150, which the said defendant was thereby appointed to pay to the plaintiffs on the said second day of June, 1874, at the chambers of his Honor the Vice-Chancellor Sir R, M., between the hours of one and two in the afternoon. That it appears by the affidavit of John Smith that he did, by virtue of a letter of attorney from the plaintiffs, attend on the said second day of June, 1874, at the chambers of his Honor the Vice-ChanceUor Sir R. M., from before the hour of one of the afternoon till after the hour of two of the afternoon of that day, in order to receive from the defendant the said sum of £150, but the said defendant did not attend to pay the said money ; and it appears by the said affidavit, and also by the affi- davit of the plaintiffs that the same, or any part thereof, hath not since been paid to the plaintiffs, or either of them, or to the said John Smith. It was therefore prayed that the defendant may stand absolutely foreclosed. Whereupon, and upon hearing the said decree, dated the ninth day of June, 1873, the said certificate dated the second day of December, 1873, the said affidavit of the said John Smith, the said affidavit of the plaintiffs, and what was alleged by counsel for the plaintiffs ; it is ordered that the defendant do from henceforth stand absolutely debarred and foreclosed of and from all right, APPENDIX. 295 title, interest, and equity of redemption of, in, and to the said mortgaged premises. 3. Minutes of Decree in an Administration Suit. (SeetheBill, No. I. 2.) Styles ^ Declare that according to the true construc- V. y tion of the will of Charles Styles the elder, Styles, j the testator in the pleadings mentioned, the defendant Ann Styles, and Charles Styles the younger, in the pleadings mentioned, hecame entitled to the resi- due of the personal estate of the said Charles Styles the elder, after payment thereout of his funeral and testa- mentary expenses and debts, as tenants in common of equal moieties thereof in remainder expectant on the death of the said defendant Jane Styles. Let the following accounts and inquiries be taken and made (that is to say) : 1. An account of the personal estate of the said Charles Styles the elder, come to the hands of the de- fendant Jane Styles, or to the hands of any other person or persons by her order or to her use. 2. An account of the testator's debts. 3. An account of the testator's funeral expenses. 4. An inquiry what parts, if any, of the testator's per- sonal estate are outstanding and undisposed of. And let the testator's personal estate be applied in payment of his debts and funeral expenses in a due course of administration. Just allowances. Adjourn further consideration. Liberty to apply. The summons to proceed on this decree is given ;post, No. XVIII. 296 APPEKDIX. 4. Order for Injunction. (Sec the Notice of Motion, J7(7«i, No. XXI.) Vice-Chancellob Malins. Wednesday the sixteenth day of April, in the thirty-seventh year of the reign of Her Ma- jesty Queen Victoria, ] 873. Between John Holfokd and 1 „. . . _ RiCHAKD Davis . . J ^ ' and Henkt Hawes Defendant. Upon motion this day made by Mr. J. S. and Mr. X. Y., of counsel for the plaintiffs, and upon hearing Mr. X. Z., of counsel for the defendant, and upon read- ing an affidavit of John Smith, filed the tenth day of April, 1873, and an affidavit of the defendant, filed the fourteenth day of April, 1873, this Court doth order that an injunction be awarded to restrain the defendant, Henry Hawes, his servants, agents, and workmen, from pulling down, or suffering to be puUed down, the house in the bill of complaint in this cause mentioned, being No. 9, King Street, Hackney, in the county of Middle- sex, and from selling the materials whereof the said house is composed, until the hearing of this cause, or until the further order of this Court. Notice of this injnnction is at once served : the writ itself will be found No. XXn. 5. Order of Revivor. Between A. B., Plaintiff, and C. D., Defendant; and Between A. B., Plaintiff, and E. F., Defendant. Upon motion, etc., of counsel for the plaintiff, it was APPENDIX. 297 alleged that the said plaintiff filed his bill of complaint ill this suit, on, etc., and that on, etc., the said C. D. died, and that the said E. F. has become and is the executor of the said C. D. That the said suit and proceedings having become abated in manner aforesaid, the plaintiff is desirous of reviving the same. It was therefore prayed that the said suit and proceedings may stand revived, and be in the same plight and condition that the same were in at the time of the said abatement ; which is ordered accordingly. XVT. INDORSEMENT ON DECREE SERVED. If you, the within-named A. B., aeglect to obey this order or decree by the time therein limited, you will be liable to be arrested by virtue of a writ of attachment issued out of the Court of Chancery or by the serjeant- at-arms attending the High Court of Chancery ; and also be liable to have your estate sequestered for the purpose of compelling you to obey the same order or decree. XVII. ISSUE. In the Court of Queen's Bencb. Middlesex i "Whereas A. B. affirms, and C. D. denies, to wit. ) that etc., and the Lord Chancellor is de- sirous of ascertaining the truth by the verdict of a jury, and both parties pray that the same may be inquired of by the country: Now let a jury, etc. o5 298 APPENDIX. XVIII. SUMMONS TO TAKE ACCOUNTS UNDER A DECREE. (See the Decree, No. XV. 3.) in chancery. John Styles against Jane Styles and Ann Styles. Let all parties concerned attend at my chambers, No. 11, Old Square, Lincoln's Inn, Middlesex, on the twenty- ninth day of May, 1873, at ten o'clock in the forenoon, on the hearing of an application on the part of the plain- tiff to proceed with the accounts and inquiries directed to be taken and made by the decree made in this cause bearing date the first day of May, 1873, Dated this eighteenth day of May, 1873. John "Wickens, Vice-ChanceUor. This summons is taken out by John Smith, of No. 70, Lincoln's Inn Fields, solicitor for the above-named plaintiff. To Mr. Henry Jones, solicitor for the defendant Jane Styles. To Mr. Thomas Crosthwaite, solicitor for the defendant Ann Styles. The defendant Jane brings in her accoants: an adTertisement for creditors is issued, bnt none come in. The chief clerk's certificate will be found ^0^, No. XX. APPENDIX. 299 XIX. ADVEETISEMENT FOR CREDITOES. Pursuant to a decree [or, an order] of tlie High Court of Chancery made in [the matter of the estate of A. 3i. and in] a cause S. against P., the creditors of A. B., late of in the county of , who died in or ahout the month of > 18 , are on or before the day of , 18 , to send by post, prepaid, to E. F., of , the Solicitor of the Defendant C. D., the executor [or administrator] of the deceased [or as may be directed], their christian and surnames, addresses, and descriptions, the full par- ticulars of their claims, a statement of their accounts, and the nature of the securities (if any) held by them, or in default thereof they wiU be peremptorily excluded from the benefit of the said decree [or, order]. Every creditor holding any security is to produce the same before the Master of the Rolls [or, Vice-Chancellor ] at his chambers situated at, etc., on the day of , 18 , at o'clock in the noon, being the time appointed for adjudicating on the claims. Dated this day of , 18 . G.H. (Chief Clerk). 300 APPENDIX. XX. CERTIFICATE OF CHIEF CLERK. (See the Minutes of the Decree, No. XV. 3, and the Summons, No. xvin.) IN CHANCEET. Between John Sttles . . Plaintiff; and Jane Styles and. ^.^^^^^^_ Ann Sttles , . . . ) In pursuance of directions given to me by the Vice- Chancellor Sir John Wickens, I hereby certify, that the result of the accounts and inquiries which have been taken and made in pursuance of the decree in this cause, dated the first day of May, 1873, is as follows : — 1. The defendant Jane Styles, the executrix of Charles Styles the elder, the testator, has received personal es- tate to the amount of £1000, and has paid or is entitled to be allowed on account thereof sums to the amount of £200, leaving a balance due from her of £800 on that account. The particulars of the above receipts and payments appear in the account marked A, verified by the afii- davit of the said Jane Styles, filed on the nineteenth day of June, 1873, and which account is to be filed with this certificate, except that in addition to the sums appearing on such account to have been received, the said Jane Styles is charged with the sums appearing in the schedule hereto, and except that I have disallowed the items of disbursement in the said account, numbered 3 and 12. 2. The testator was at the time of his death indebted to various persons in various sums, amounting in the whole to £150. These debts have been paid by the said executrix, and I have allowed her the amount thereof in APPENDIX. 301 the said account of personal estate. No debts are now due from the estate of the testator. 3. The funeral expenses of the testator amount to the sum of £50, which I have allowed the said executrix in the said account of personal estate. 4. No part of the testator's personal estate is out- standing and undisposed of. The evidence produced on these accounts and inquiries consists of the affidavit of the said Jane Styles. Dated this sixth day of November, 1873. c. c. Approved this sixth day of November, 1873. John Wickens, V. C. If this cause be set down on Further Consideration, the Order will be to tax all pai'ties their costs of the cause, those of the ex- ecutrix to be taxed as between solicitor and client. The executrix will pay the costs to the solicitors, and will be entitled for her life to the interest on the balance. XXI. NOTICE OF MOTION FOE AN INJUNCTION. (See the Bill, rnite, No. I. 1.) IN CHANCERY. Between John Holfoed ^r^A^piaintifis; Richard Davis . . * and Henkt Ha we 9 .... Defendant, Take notice, that this Honorable Court will be moved before the Vice-Chancellor Sir Richard Malins, on the sixteenth day of April next, or so soon after as counsel can be heard, by Mr. J. S., of counsel for the plaintiffs. 302 APPENDIX. that an ioj unction may be awarded against the defendant Henry Hawes to restrain him, his servants, agents, and workmen from pulling down, or suffering to be pulled down, the house in the Bill of Complaint of the plaintiffs mentioned, being No. 9, King Street, Hackney, in the county of Middlesex, and from selling the materials whereof the said house is composed, until the Court shall make other order to the contrary. Dated this tenth day of April, 1873. Tours, etc, John Smith, Plaintiff's Solicitor, No. 70, Lincoln's Inn Fields. To Mr. Henry Jones, defendant's solicitor. On the hearing the above motion, the plaintiffs will read the following affidavit. Affidavit of the said John Smith, filed the 9th day of April, 1873. (The order made on this motion is given ante, No. XV. 4.) XXII. WEIT OF INJUNCTION. (See the Order, ante. No. XV. 4.) ViCTOEIA, etc.. To Henry Hawes, his servants, agents, and workmen. — Whereas, upon opening the matter unto us in our Court of Chancery, on the sixteenth day of April, in the thirty-seventh year of our reign, by Mr. J. S. and Mr. X. Y., of counsel for the plaintiffs, in a cause wherein John Holford and Richard Davis are plaintiffs, and you, the said Henry Hawes, are defendant, it was ordered that. APPENDIX. 303 etc. We therefore, in consideration of the premises, do hereby strictly enjoin and restrain you, the said Henry Hawes, your servants, agents, and workmen, under the penalty of £ {any large nominal sum), to be levied on your and each of your lands, goods, and chattels to our use, from pulling down, etc. Witness, etc. E.ICHAED MaIINS, Vice-Chancellor. xxm. WEIT OF ATTACHMENT. Victoria, etc., To the Sheriff of Middlesex, greeting. — We command you to attach C. D., so as to have him before us in our Court of Chancery immediately after the receipt of this wiit, wheresoever the said Court shall then be, there to answer to us as well touching a contempt which he, as is alleged, has committed against us, as also such other matters as shall 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 ourselves at Westminster, the day of in the year of our reign. ROMILLT, M. E. 304 APPENDIX. XXIV SUBPCENA FOR COSTS. Victoria, etc., To C. D., greeting. — We command you that you pay or cause to be paid immediately after the service of this writ, to A. B. or the bearer of these presents, £ costs, in a cause wherein the said A. B. is plaintiff, and C. D. and others are defendants, by our Court of Chancery adjudged to be paid by you to the said A. B., under pain of * [attachment issuing against your person, and] such process of contempt as the Court shall award in default of such payment. Witness, etc. Eomillt, M. E. • These words will now be generally omitted. See rule 4 of order of 7tli January, 1870. XXV. PETITION UNDEE THE TEUSTEE ACTS. IN CHANCERY. EorK Ci^anctllor. SPtce^CljanceUar )3acon. In the matter of the Trustee Act, 1850 ; and , In the matter of an Act of Parliament passed in the session held in the loth and 16th years of the reign of Her Majesty Queen Victoria, chapter 55, entitled An Act to extend the Provisions of the Trustee Act, 1850 ; and In the matter of Henry Smith's will. To the Eight Honorable the Lord High Chancellor of Great Britain, The humble petition of Thomas Eussell, of Lymm, in APPENDIX. 305 the couniy of Chester, farmer, and Henry Russell (an infant under the age of twenty-one years), by the said Thomas Eussell, his father and next fiiend, Showeth as follows : — Henry Smith, late of the city of Manchester, grocer, (the testator hereinafter named), by his will bearing date the first day of January, 1859, gave and bequeathed as follows (that is to say): "I give and bequeath to my "daughter Mary, now the wife of Thomas Eussell, of "Lymm (meaning your petitioner, Thomas Eussell), "£1000 duty free, for her only use during her life, "and for her husband and then their children after " her :'' and the said testator appointed Eobert Jones and Michael Crosthwaite to be executors of that his last will. The said testator died in the month of March, 1859, without having revoked or altered his said will, except by a codicil, bearing date the fourteenth day of February, 1859, which did not affect the gift of £1000 to the said testator's daughter, Mary Eussell, her husband and children, nor the appointment of executors in the said will contained, and without having revoked or altered his said codicil, and the said will and codicil were on the fourth day of April, 1859, proved by the said Eobert Jones and Michael Crosthwaite, in Her Majesty's Court of Probate. The said executors possessed themselves of the per- sonal estate of the said testator, and paid his funeral and testamentary expenses and his debts, and set apart a sum of £1000 to answer the said bequest to the said Mary Eussell, her husband and children, and invested the same in the purchase of £1135 : Is. \0d. £3 per Cent. Consolidated Bank Annuities, which sum is now standing in the names of the said Eobert Jones and 306 APPENDIX. Michael Crosthwaite, in the books of such Anauities kept at the Bank of England. The said Mary Eussell died on the fifth day of Sep- tember, 1864, leaving her surviving her husband your petitioner Thomas Eussell, and your petitioner Henry Russell her only child, and without having ever had any other child. The said Robert Jones and Michael Crosthwaite re- ceived the dividends which from time to time became due on the said sum of £1135: Is. \0d. £3 per Cent. Consolidated Bank Annuities, and paid the same to the said Mary Russell during her life, and since her death to your petitioner Thomas Russell. The dividend which became payable thereon on the 5th day of January, 1873, has not been received. The said Robert Jones died on the first day of March, 1871. The said Michael Crosthwaite died on the second day of January, 1872, having by his will bearing date the second day of December, 1871, appointed Henry Dixon, of the city of Manchester, merchant, and Thomas Cros- thwaite, of the said city of Manchester, stockbroker, to be his executors, and the said will was on the second day of March, 1872, proved by the said executors in Her Majesty's Court of Probate. The said Henry Dixon and Thomas Crosthwaite are gentlemen of the highest respectability, and are willing to act in the execution of the trusts of the will of the said testator in favour of your petitioners. Your petitioners therefore humbly pray your Lordship that the right to transfer such sum of £1135: Is. \0d. £3 per Cent. Consolidated Bank Annuities, now standing in the names of the said Robert Jones and Michael Crosthwaite, in the APPENDIX. 307 books of the Bank of England, and to receive the dividends thereof (including the dividend which became payable thereon on the fifth day of Janu- ary, 1873), may be vested in the said Henry Dixon and Thomas Crosthwaite, in trust for your petitioners, or that your Lordship will be pleased to make such further or other order in the pre- mises as to ypur Lordship shall seem meet. And your petitioners will ever pray, etc. Note. — It is not intended to serve any person with this petition. XXVL PETITION FOE APPOINTMENT OF NEW TRUSTEES. in chancekt. Master of the Rolls. In the matter of the Trustee Act, 1850, and In the matter of the Trusts of an Inden- ture of Settlement, dated the first day of April, 1840, and made between A. B. of the first part, C. D. of the second part, and E. F. and G. H. of the third part. To the Eight Honorable the Master of the Eolls. The humble petition of the above-named A. B. of ; Mary B., of the same place, spinster ; and John 308 APPENDIX. B., an infant, by the said A. B., his father and next friend, Showeth as follows : — 1. By the above-named Indenture (being a Settlement made in contemplation of a marriage then intended and shortly afterwards solemnized between the said A. B. and C. D.), the sum of £500 secm-ed on mortgage of the freehold estates therein mentioned, and the sum of £600 secured by bond as therein mentioned, were vested in the said E. F. and G. H., upon trust to pay the interest thereof to the said C. D. for her life, and after her death to the said A. B. for his life, and after the death of the said A. B. and C. D. upon trust in equal shares for all the children of the said A. B. and C. D. who should attain the age of twenty-one years. 2. The said C. D. died on the sixth day of April, I860. 3. There have been four children, and no more, of the said A. B. and C. D., viz. your petitioners, Mary B. and John B., and two sons, who died infants. 4. The said E. F. died on the tenth of May, 1865, and the said G. H. refuses to act any longer in the trusts of the said indenture. 5. The said indenture contains no power of appointing new trustees. 6. The trust moneys which are subject to the trusts of the said indenture consist of the said mortgage-debt and bond-debt so settled as aforesaid. 7. Your petitioners are the only persons who are bene- ficially interested in the said trust funds, and they are desirous that I. K. of , and L. M. of , who are fit and proper persons for the purpose, should be appointed new trustees of the said indenture in the place of the said E. F. and G. H. APPENDIX. 309 8. The said I. K. and L. M. are -wiUing to be ap- pointed and to act as such trustees. Your petitioners therefore humbly pray your Honor that the said I. K. and L. M. may be appointed trustees of the said indenture, in the place of the said E. F. and G. H., and that the said freehold trust estates may be vested in the said I. K. and L. M. upon the trusts of the said Indenture, and that the right to sue for and re- cover the said mortgage-debt of £500 and the said bond-debt of £600, and to receive the in- terest thereon respectively, may be vested in the said I. K. and L. M. as such trustees, or that your Honor vrill be pleased to make such further or other order in the premises as to your Honor shall seem meet. And your petitioners will ever pray, etc. Note. — ^It is intended to serve the said G. H. with this petition. Upon the hearing of this petition, the certificate of the marriage of A. B. and C. D., and of the death of C. D. and E. P., will ba re- qnired, with affidavit of the identity of the persons named in the certificates ; and A. B. should make an affidavit verifying the state- ments in the petition as to his children, and as to the state of the trust fond ; and there must be an affidavit of the fitness of the new trustees, and they must sign a written consent to act, which signa- ture must be verified by affidavit. The settlement being more than thirty years old proves itself. 310 APPENDIX. XXVII. PETITION UNDER THE INFANT'S SETTLE- MENT ACT. in chancery. Master of the Eolls. In the matter of A. B. an infant, by C. D. her mother and next friend, and In the matter of an Act of Parliament for ena- bling Infants, with the approbation of the Court of Chancery, to make binding settle- ments of their real and personal estate on marriage. 18 & 19 Vict. cap. 43. To the Eight Honorable the Master of the Eolls. The humble petition of the above-named A. B. of , by C. D. of the same place, her mother and next friend, Showeth as follows : — 1. E. F., late of , farmer, was the father of your petitioner, and by his will dated , devised as fol- lows [devise in favour of petitioner] and appointed the said C. D. guardian of your petitioner. 2. The said testator died on , without having altered or revoked his said will, and leaving your peti- tioner his only child him surviving, and his said will was on , duly proved by the executors thereof in Her Majesty's Court of Probate. 3. Your petitioner was born on the day of , and is therefore more than 17 years of age and under the age of 21 years. 4. Your petitioner is not entitled to any fortune, ex- cept under the said devise contained in the said wilL APPENDIX. 311 5. A marriage has, with the consent of the said C. D., as testamentary guardian as aforesaid, and of [trustees of will if any], been agreed upon between your petitioner and G. H., of , Esquire, and on the treaty for the said marriage it has been agreed that the whole of the fortune of your petitioner shall be settled upon and be- come subject to the trusts and provisions of an indenture of settlement, the draft of which has been perused and approved by counsel on behalf of your petitioner, and has been agreed to by all parties, subject to the sanction and approbation of this Honorable Court being ob- tained. Your petitioner is desirous that such settlement should be finally settled and approved of, by and under the direction of this Honorable Court, and that your peti- tioner should be enabled, under the provisions of the said Act, to make a binding settlement of her said for- tune in accordance with the terms of the said draft in- denture of settlement, or upon such other terms as this Court may think fit. Your petitioner therefore humbly prays your Honor that a proper settlement of aU the said fortune of your petitioner may be approved and sanctioned by this Honorable Court, and that your petitioner may be at liberty and may be directed to execute such settlement as soon as the same shall have been so approved and sanc- tioned. And your petitioner will ever pray, etc. Note. — It is not intended to serve any person with this petition. [N.B.— If the property be deyised in trust, the Trustees should be serred, and the abore note will be altered accordingly.] INDEX. Abatement of Snit .. ,. .. .. .. .. 129 Acconntant^General , . . , . . . . . . . . 97 Accounts, taken in chambers . . . . . . . . . . 108 bringing in 109 when vouched .. .. .. .. .. .. 112 books of, when evidence . . . . . . . . 112 Action at Law, to establish right 103 Address for Seri'ice 18 Administration of Estates, creditor's suit for 13 in chambers .. .. .. ,. .. 113 costs of . . . . . . . . . . , . 200 summary proceeding for . . . . 242 — 247 Administration Summons . . . , . . . . . . . . 242 of realty . . . . . . . . , . . . 247 Advertisement for Creditors .. .. .. .. ..113 Form {Appendix, No. XIX.) Affidavits on Motion for Decree . . . . . . . . . . 60 how prepared . . . . . . . . . . . . 78 sworn . . . , . , , . . . . . 78 of service 80 office copies . . . . . . . . . . . . 79 printing . . . . . . . . . . . . . . 79 as to documents . , . . . . . . . , 121 by Peers 173 verifying answer . . . . . , . . . . 70 Form {Appendix, No. IX.) Amendment of BUI (see Bill). after demurrer 85 after plea 40 of plea 43 Answer, form of {Appendix, No. VII.) when put in .. .. .. .. ,. ..43 contents of . . . . . . . . . . . . 45 printing of 47 L. P 314 INDEX. PAOS Answer, voluntary . . . . . . . ■ . . . . 44 how prepared . . . . . . . . . . . . 44 schedules to . . . . . . • • . . . . 46 oath and signature to . . . . • . • • . . 46 howfiled 47 time for . . . , . . . . . . . . . . 48 joint . . . . . . . . . . . . . . 48 plaintiff's steps after . . . . . . . . 51 — 66 supplemental . . . . . . . . ■ ■ . . 68 amending.. .. .. .. .. .. ..58 reading, after replication . . . . . . . . 69 reading as to costs . . . . . . . . . . 70 defaultof 160 further time for . . . . . . . . . . . . 48 of Peer 173 of infant defendant . . . . . . . . . . 178 of married woman ,. .. .. .. .. 182 Answering a Petition . . . . . . . . . . . . 154 Appeal 187-194 from Order in Chambers . . ,. .. .. ..118 Court of, In Chancery , . . . . . . . . . 190 Petition 191 Motion 193 Appearance, how entered . . . . . . . . . . . . 22 form of entering {Appendim No. III.) effect of 22 entering by plaintiff for defendant . . . . 22 default of . . . . . . , . . . . . 158 Appendix to Lords' Case 188 Attachment, Writ of 161. form of {Appendix, No. XXIII.) how prepared 161 executed . . . . 161 return of . . . , . . . . . . . . 162 for non-performance of a Decree . . . . . . 167 not issued against a Peer . . . . . . . . 173 Attorney-General sues by information 12,252 appears on Petition of Eight . . . . 213 Attorneys, how admitted . . . . . . . . . . . . 249 Awards, Summary Jurisdiction over . . . . . . . . 248 Bankruptcy, appeal in .. .. .. .. .. .. 211 of trustees 241 Barof Court 163 Biddings, opening .. .. ., US INDEX. 315 PAGE Bill, formal mode of commencing suit . . . . . . . . 10 nature of .. 12 how prepared 12 parts of 15—17 title of .. .. 13 contents of . . . . . . . . . , . . . . 16 form of {Appendix, No. I.) ■when printed 19 ■when written copy filed . . . . . . . . ..19 howfiled 20 sealed copy ser\ed . . . . . . . . . . . . 21 supplying copies to defendant . . . . . . . . 21 how analogons to a declaration . . . . . . . . 28 Cross 49 of DiscoTcry .. .. .. .. .. .. ..51 Amendment of . . . . . , . . . . . . 56 to what analogous . . . . ■ • . . 56 order to amend . . 57 how amended . . . . . . . . . . . . . . 57 supplemental . . . . . . . . . . . . . . 129 of reviTor . . . . . . . . . . . . . . 129 ofSeyiew 188 Bill and Answer, setting do^wn on . . . . . . . . 52 hearing on . . . . . . . . . . 59 Bill of Costs, solicitor's signed . . . . . . . . . . 250 Bill ^ro co7i/(5Sso, order to take .. .. .. .. -. 160 decree on • • . . . . . - 164, 165 Books and Papers , , . . . . . . . . • . . . 16 Boundaries, settlement of . . . • ■ ■ . ■ • . • • 104 Branch of Court . . . . . . . . . . • • . . 13 Carriage of Decree . . . . . . . . . . . . . . 85 Carrying in Decree . . . . . . . . . . . . 109 Case on Appeal to the Lords 188 special.. .. .. ,, .. •• •• •• 214 Cause, setting down . . . . . . . . . . . . 65 Cause, Short 62 after Replication 66 Caveat against enrolment . . . . ■ . . . . . . . 92 Certificate of Chief Clerk 112 form of ( Appendix, No. XX.) how Taried .. .. -. .. .. .. 117 filed .. .. •• 117 p2 316 INDEX. PAGE Cestui qne vie, production of . . . . 229 Chambers, proceedings in . . . . . • . . . . . . 107 ministerial basiness in .. .. .. ..107 commencing proceedings in .. .. .. ..110 judicial bnsiness in .. •. .. .. .. 119 orders obtained in .. ,. .. .« .. 119 regulations as to business in . . . . . . . . 123 Chancellor, nature of his office . . . . • • . . . . 5 extraordinary jurisdiction .. .. .. .. 6 ordinary jurisdiction.. .. .. .. .. 6 Charges in a Bill, vrhat .. .. ..16 as to books and papers .. ..16 Charitable Trust Commissioners . . . . . . . . . . 252 Charities, snits as to, by information . . . . . . . . 12 summary proceedings as to . . . . . . . . 252 schemes in cases of . . . . 254 Claims, abolition of .. .. .. 214 Class, hovr represented .. ..13 when representation allowed .. .. .. ..14 any member may appear .. .. .. .. ..14 Clerks of Records and Writs 20 Chief 109 Commissioners of the Great Seal.. .. .. .. ,. 6 to make partition . . . . . . . . 104 to take oaths . . . . . . . . . . 46 Charity 252 Committee of Lunatic 179 Common Law Judge, when called in . . . . . . . . 102 Common liaw side of Court of Chancery . . . . . , 7 Companies, winding up of . . . . . . . . . , 255 Concise Statement, what . . . . . . . . . . . . 49 Consolidated Orders . . . . . . . . . . . . 4 Contempt 157—171 by non-attendance of witness 73 Contributories 256 Conveyance, how enforced .. .. ,. .. ..169 Copies, length of, how reckoned .. .. .. .. ..21 Corporation, how served . . . . . . . . . . . . 173 officer of, made party .. .. .. .. 174 INDEX. 317 PAGE Costs, secnrity for 15,207 when prayed for . . . . . . . . . . . . 18 of written Bill 19 of Demurrer . . . . . • . . . . . . 36 after Disclaimer . . . . . . . . ■ . .. ii on appeal ■ . . . . . . . . . . . . . . 89 paid to Solicitor directly, when . . . . . , . . 101 not generally dealt with by Decree . . . . . . 200 dealt with on further consideration . . . . • . 200 ofMotions 139 of Petitions . . . . . . . . . . . . . . 155 of Infant's suit .. •• .. .. .- •• 175 out of fund.. .. .. .. .. .. ..198 in cause . . . . . . . . . . . . . . 199 appeal on question of . . . . . . . . • • 191 of Executors 200 of suits by Trustees . . . . . • . . • • 200 of administi'ation . . . . . • . . • ■ . • 200 as to mortgages . . . . • • . • . - • • 201 of Bill of Discovery 201 taxation of 203—206 Charges, and Expenses . . • • . . . . • • 20+ between party and party . . . . . . • • . • 205 solicitor and client . . . . . . . . 205 Subpoena for (Apjyendix, No. XXIV.) . . . . . . 206 of Special Case 215 under Lands Clauses Consolidation Act . . . . . . 231 under Trustee Relief Act . . . . . . . • • • 238 Counsel, when employed . . . . . . . . ■ • ■ • 9 why required to sign Plea . . ■ ■ . . . . 39 Conveyancing, to Court. . .. .. .. •• 116 not heard in Chambers . . .. .. .. ..117 County Courts, equitable jurisdiction of 264 — 267 Creditor's Suit 13 Claims by, in Chambers 114 Inquiry for .. .. •• .. •• 111,113 Cross-examination of witnesses . . . . . . • • . . 65 Declaration at Law, how analogous to Bill 28 Declaration of right 89 of Title Act 262 Declaratory decree 217 Decree • • • • 84 form of {Appendix, No. XV.) minutes of ^ drawing up °' P 3 318 INDEX, PAGE Decree, passing and entering . . . • . . . . . . 87 parts of . . . . . . . . . . . . . . 88 errors in, how corrected .. .. .. .. ..91 enrolment . . . ■ • • • • • • • • . . 91 indorsement and service . . . • . . • ■ . . 93 enforcing . . . . ■ • . • . . • • . . 167 merely declaratory .. •• .. .. .. 217 proceedings nnder • ■ ■ . . . 96 carrying in . . . . . . . . • • . . 109 Decretal Order 85 Deed, execation of, how enforced . . . . . . . . 169 Defence, forms of . • . . 26 — 49 Defendant, how apprised of suit . . . . . . . . . . 21 Demnrrer, when adopted .. .. .. .. .. ..26 derivation and meaning . . . . . . . . 27 at law admits facts . . . . . • • • . . 28 to discovery only . . . . . • . . . . 28 gronndsof 28,29 forms of (Appendix, No. V.) ore tenus . . . . . . ■ ■ . . . . 30 speaking •• •• .. .. .. ..36 how prepared and filed .. .. .. 30,31 plaintiff's proceedings after . . . . . . . ■ 31 setting down .. -. ..31 advancing . . . . . . . . . . . . 32 hearing . . . . . . . . . . . . . . 33 allowed withont leave to amend . . . . . . 34 with leave to amend . . . . . . . . 35 overmled . . . . . . 35 costs of . . . . . . . . . . . • . . 36 topartofBill 30 Deposit on rehearing .. .. .. .. .. .. 191 placing money on . . . . . . • . . . 97 Depositions 74 Disclaimer, what . . . . • . . . 26, 43 Discovery, what . . 2 origin of jurisdiction to enforce .. .. .. 6 how enforced and given . . . . . . . . 23 right to, subsidiary to relief . . . . . . . . 27 how obtained from a corporation .. .. ..174 Dismissal of Bill by plaintiff 148 by Defendant for want of prosecution . . . . 149 Distringas . . . . . . . > . . • • . . . . 225 Dividends, nnclaimed 228 INDEX. 319 T* i 1. -r^ PAGE uocqnet of Decree . . . . . . . . . , . , . . 91 Documents, how proved by affidavit 80 production of 120 Dower, assignment of . . . . . . . . . . . . ] 04 Drainage Acts 234 Elegit, writ of . . . . . . . . . . . . . , igg Enrolment of Decree . . . . . . . . . . . . 91 time for . . . . . . . . . . . . 92 object of 92 how prevented . . . . . . . . . . 92 vacating . . . . . . . . . . . . 93 effect on right to rehearing . . . , . . 187 Evidence 67 — 81 on motion for Decree . . , . , . . . 69, 72 on Replication 69,71 oral . . . . . . . . . , . . . . 71 by affidavit . . . . . . . . . . . . 77 entering on decree . . . . . , . . . . 88 on motions .. .. .. .. .. ..136 on rehearing . . . . . . . . . . . . 192 de iene esse .. .. . . . . . , , . 75 Examiners . . . . . . . . . . . . . . . . 72 special . . . . . . . . . . . . . . 73 " ex parte " evidence before . . . . . . . . 75 Excepting, meaning of . . . . . . . . . . . . 52 Exceptions to Answer . . . . . . . . . . . . 52 defendant's course after . . . . . . . . 53 setting down and arguing . . . . . . . . 54 answer after . . . . . . . . . . . . 55 as to documents . . . . . . . . . . 122 Exchequer equitable jurisdiction abolished .. .. 8,226 Executor, summons against . . . . . . . . . . 246 summons by . . . . . . . . . . . . 242 Exhibits 80 Fact, questions of .. .. ., .. ,. ,, .. 102 Eees to solicitors .. .. .. .. .. .. ., 196 of Court 197 Meri facias, writ of 168 Folios, how reckoned . . . . . , . , , ..21 320 IKDEX. PAGE Pand, solicitor's lien on . . . . 251 Farther consideration 126 Farther directions 126 Guardian of Infant 177 how appointed 177,178 ad litem .. .. .. .. .. .. 177 for lunatic , 180 Maieas Corpus, writ of . . . . 163 ffaiere facias, Tint of ,, ,, .. .. ., .. 168 Hearing of a cause . . . . . . 82 in private 84: Infant Plaintiff 175 costs of suit by . . . . . . . . . . . . 175 two suits on behalf of . . . . . . . . . . 177 Infant defendant . . . . . , 177 answer by .. .. .. .. .. .. .. 178 decree against .. .. .. .. .. .. 179 snmniary jurisdiction as to . . . . . . . . 221 guardianship and maintenance . . . . . . . . 221 settlements by . . . . . . . . . . . . 222 form of {Appendix, No. XXVII.) legacies to 239 Information, form of address .. .. .. .. ..15 when used .. ..12 authority to name relator in . . . . . . 176 Injunction, nature of 139 making perpetual . . . . . . . . . . 104 after decree . . . . . . . . . . . , 141 must be prayed for 141 order for, obtained speedily .. 142 interim order for . . . . 142 notice of . . . . . . . . , . . . 143 writ of . . 1 44 disobedience to 144 Inquiries in Chambers 113 Inquisitions 180, 212 Interpleader Bill 96 Interrogatories, what 23 form of {AppendiXj.'So. IV.) INDEX, 321 Interrogatories, service of 25 for examining plaintiff . . . . . . . . 48 for examining defendant, after third answer . . 55 Inyestment in stock S)8 Irish mortgages 234 Issne 103 form of {Appendix, No. XVII.) joining, meaning of .. .. .. .. .. ..63 Judges, who . . . . . . . . 5 of Common Law Comrt called in 102 Judicial separation, effect of, on right to sue 181 Jury, trial by, in Chancery 76, 102 Lands Clauses Consolidation Act 229 application of money under . . . . . . . . 231 Law, question of, how decided 102 Leases of settled estates 232 Legacy Duty 100 Legacy Duty Act 239 Lien, solicitor's, on papers . . .. .. .. .. .. 251 on fund and other property .. •. ..251 Liquidation Act . . . . . . . . . . . . . . 260 Lord Keeper of the Great Seal . . . . . . . . . . 5 Lords, House of, appellate jurisdiction .. .. .. .. 8 appeal to . . . . . . . . . . 187 Lords Justices, jurisdiction of .. .. .. .. .. 7 Lunacy, jurisdiction in . . . . . . . . . . 8, 180, 212 Lunatic sues by his Committee . . . . . . . . . . 179 defendant . . . . . . • • ■ . . • • • 180 Maintenance of infants .. .. .. .. .• .. 221 Management of settled property 229 Mandatory injunction . . . . . . . • . . . . 140 Harried woman . . . . . . . . . . . . . . 181 her acts considered as her husband's .. ..181 joins with her husband, or sues by next friend 181 322 INDEX. PAGE Married woman, when may sue and be sued alone . . . . 181 contempt by .. .. .. .. .. 182 petition by .. .. .. .. .. 182 separate property of . . . . . . . . 183 Master of the Rolls, his jnrisdiction 7 Minutes of Decree . . . . . . . . . • . . . . 86 speaking to cause on . . ■ • • ■ • • . . 86 Mortgages, costs as to . . . . ■ . • . . . • • 201 in Ireland . . ■ . . . • • • ■ • • 234 Motions , 132-151 of course • • . . • • ■ • . . . ■ . . 150 notice of {AppenMie, No. XXI.) who served with 134 evidence on . . . . . . . . . . . . 136 order of making 137, 138 appeal from . . . . . . • ■ . . . . 193 Motion for decree . . . . . > • • ■ • . . . . 69 notice of . . . . 59 evidence on 60, 72 Multifariousness, Demurrer for . • . . 29 Ne exeat, writ of . . . . . . . . 147 Next friend of infant .. .. .. .. .. .. 175 of married woman . . . . . . . . . . 181 Next of kin, inquiry for .. 113 Oaths, by whom administered . . . . . . . . . . 46 form of, to answer (Appendix, No. VIII.) Officers of the Court, what . . . . . , . . . . 8 Opening biddings, meaning of 116 Opinion of Court, petition for 218 Orders made in chambers 120 how drawn up 123 of course, on petition 156 for injunction, form of {Appendix, No. XV.) general, what . . . . . . . . . . . . 4 may be relaxed . . . . . . . . . . 4 of dismissal.. .. .. .. .. .. ..85 decretal . . . . , . . , 85 Papers, Solicitor's lien on 251 INDEX. 323 ii^arties may appear m person , . . . . . . . . . 8 general rale as to 13 representing class ] 3 demurrer fot want of 29 out of inrisdiction . . . . . . . . . . . . 174 corporations . . . . . . . . , . . . 174 Partition suit 104 Act 105 Partnership . . . . . . . . . . 255 Party and party, costs between 205 Patents .. .. .. .. .. .. .. 7 212 Panper plaintiff 185 defendant 185 Pavperis, suing in forma . . .. .. .. .. .. 185 Paymaster-general . . . . . . . . . . . . . . 97 Payment into Conrt 96 — 100 ont of Conrt . . 101 on Certificate of Chief Clerk 117 when ordered in Chambers .. .. .. ..120 not ordered on motion . . . . . . . . . . 152 Pay-ofBce (Chancery) . . . . , . . . . . . . 98 Peer, address of Bill by .. 15 answer of . . . . . . . . . . . . ..173 sequestration only process against . . . . . . . . 173 Petition of Eight 212 Petitions .. .. .. .. .. .. .. .. 152 forms of {Appendix, Nos. XXV., XXVI, XXVII.) service .. .. .. .. .. .. .. 154 hearing . . . . . . . . . . . . . . 155 costs of . . . . . . . . . . . . . . 155 of course .. .. .. .. .. .. .. 155 of appeal to the Lords . . . . . . . . . . 187 for rehearing .. .. .. .. .. ..191 under statutes . . . . . . . . . . . . 209 nnder Lands Clauses Consolidation Act . . . . 231 for the opinion of Court . . . . . . . . 218 Petty Bag Office 212 Plea, when adopted . . . . . . • . • ■ . . 36 nature and grounds of . . . . ■ . • . . . 36 to what it is analogous at law . . . . . • . . 38 how filed 3« setting down and hearing . . . . 41 324 INDEX. PAOB Plea, orders on hearing *2 forms o£ {Appendix, No. VI.) accompanied by an answer . . . . . . . . • . 43 Pleading, Lord Eedesdale's Treatise on 3 rales of, what •• •• 2 Pleadings, object of 67 evidence of, on Bill and Answer 68 on Motion for a decree . . . . . . 69 evidence of, after Beplication.. •• •• ..69 Possession of Lands, how procured . . . . . • . • 168 Poverty an excuse for not answering . . . . . . . . 163 Practice, Rules of, what . • . . . . • • . • . • 2 how ascertained • ■ • • . . 3 treatises on . . . . . . . . . • ■ • 3 Prayer, what 17 for general relief • • • • . . 17 Pretences in Bill, what 16 Privileged documents . . . . 122 Production of Documents by defendant 120 by plaintiff 122 of cettui gme vie .. .. .. • . .. 229 Protection Order, effect of, on right to sue 183 Protectorship . . . . . . . . . , . . . . 223 Publication passing . . . . . . 74 Public ofScer . . . . . . 174, note Public Works Acts 229 Bailway Acts 229 companies, insolvency of 269 Keceivers .. .. .. .. 145 how appointed . . • • . . . . . . . . 146 security by .. .. .. 146 Receiveis' accounts.. .. .. .. ., .. ,. 147 Becord and Writ Clerks . . 20 Becord, reference to .. ., 20 Bedemption Decree 125 Be-examination of Witnesses .. .. 71 after affidavit 79 INDEX. 325 PAGE Begistrar's note of the Decree 85 book . . , . . . . . , . . . . . 87 office 86 Registration of Decrees . . . . . . . . . . . . 87 nnder Judgment Act 168 of titles 261 Reg. Lib 88 Eehearing before Judge (and see Appeal) 187 Eelator, what . . . . . . . . 15 gives authority for filing information 176 Relief, what . . . . . . . . . . . . , . 2 usual species of . . . . . . . . . . . . 17 Replication, expediency of filing . . . . . . . . . . 63 when filed . . . . . . . . , . . . 63 form of (_Appendix, No. XI.) evidence after . . . . . . . . . . 71 to plea , . . . . . . . . . . . 40 Reply, undertaking to 64 Respondents to Motion 134 to Petition . . . . . . . . . . . . 153 to Appeal 192 Restraining Order . . . . . . . . . . . . . . 227 Return, false, to writ 162 Review, BiU of 188 Revivor, Bill of 129 order of {Appendix, No. i V. 5) .. .. ..130 Rolls, striking ofE 249 petition at the . . ■ ■ • • ■ ■ . • . . 15S Sales by the Court . . .. .. .. .. .. .. 115 under Registration Act 262 of settled estates . . . . ■ • . . . . . . 232 Schemes for charities . . . . . . . ■ . . . . 254 Scire facias 7, 212 Seal, Great, kept by Lord Chancellor 5 in commission . . . . . . . . . . 6 days 137 Security for Costs 16, 207 Sequestration for want of answer 164 to enforce decree . . • . . . . . . . 170 L. Q 326 INDEX, Sequestrators .. .. 170 Serjeant-at-Arms 16^ Service of Bill 19 substituted 21 Service, memorandum of • • • . • • • • • • • • 25 affidavit of 80,135 Setting down, wbat • • • . . 32 plea 41 Settled Estates, leases and sales of 332 Settlements, summary jurisdiction as to .. J. .. 220 byinfants 222 protectorship of 223 Signature of Defendant to Plea and Answer . . . . 38, 46 of Lord Chancellor to decree . . . . . . ..91 of Judge to certificate . . • • 116 Solicitor and Client, costs between 205 Solicitors, how admitted ■ . . . • • 249 named on Bill . . . . . . IS business done by . . . . . . . . . . 196 agreements between, and clients 196 remedies for their costs . . . . . . 250, 251 lien on papers and fund . . 251 property in suit 251 Special Case 214 costs of 215 not always conclusive 216 advantages and disadvantages of , . • ■ . . 216 Stamps, for Court Fees . . . . . . 197 Stock, investment in . . . . . . • • . . . . 98 restraints on dealing with . . . . . . . . 224 unclaimed • ■ • ■ 228 Stop Order 100,228 Striking ofe Eolls 249 Subpoena to appear and answer . . . . . . . . . . 6 now abolished . . . . . . . . 22 ad testificamdum (^Appendix, No. XIII.) . . . . 73 to hear judgment (Appendix, No. XH,) . • , . 66 Succession Duty 100 Suit, what 9 creditor's • . . . . . . . 13 Suitors' Fee Fund 198 INDEX. 327 PAGE SnmmonB, in Chambers (^Appendim, No. XVin.) . . ..110 adjonmed 118 administiation 242 — 247 Supplemental Statement 131 Taxation of Costs 203 reviewing . . . . . . . . . . , . 206 of solicitor's bill 250 Taxing Masters .■ 203 Titles 261 Transfer into Court 97 — 100 out of Court 101 Traversing Note 166 Trustee Acts 1850 and 1852 239 ReUef Acts 236 affidavit under . . . . . . . . . . 237 Trustees, costs of 200 sxunmaiy proceedings by 236 against 239 bankrupt .. 241 Uses, first objects of Equity Jurisdiction 6 Vesting orders, under Trustee Acts . . . . . . . . 239 under registration of Titles Acts . . . . 262 Vice-Chancellors 7 Vouchers, when necessary . . . . . . . . . . 112 Wardof Court 221 Winding up 255 Witnesses, attendance of, how obtained . . . . . . . . 72 out of jurisdiction .. .. .. .. ..75 Writs, original, sealed by Chancellor . . . . . . . . 5 on bill served (Appendix, No. II.) . . . . . . 22 specially prayed for .. .. .. .. ..18 of assistance . . . . •• •• •• • • 168 attachment {Appendix, No. XXIII.) . . . . . . 161 distringas .. . . . . • . . • • • • ■ 225 elegit .. .. .. .. .• •• .. 168 fieri facias •• .. .. .. •• •• •• 168 328 INDEX. ' FAOB Writs, liabea» corpus 163, 212 habere facias poggeBsionem .. .. .. .. 168 miuacViorx {AppenMXf'So. "KSJI.) .. .. .. 139 ne exeat .. .. . . • • ■ • . . . . 147 sequestration 164, 170 siiipasna ad testifieamdum 73 forcosts 206 to appear and answer . . . . . . . . 6 Written Bill 19 THE END. LONDON : FEINTED BY C. EOWOBTH AND SONS, NEWTON STBEET, HIGH HOLBOEN. CATALOGUE OF PUBLISHED BY MESSRS. BUTTERWORTH ILato ISoofesellers anti ^utUst^s ! to THE QUEEN'S MOST EXCELLENT MAJESTY, H. R. H. THE PRINCE OF WALES. "Now for the Laws of England (if I ihall speak mn opinion of them mlhout " nartiality either to my profession or country), for the matter and nature of " tkem, I hold them wise, just and moderate laws : they give to God, they giveio " Ccesar, they give to the subject what appertaineth. It is true they areas mxxt " as our language, compounded of British, Saxon, Danish, Norman customs. " And surely as our language is thereby so much the richer, so our laws are tilu- " wise iy that mixture the more complete."— Im^b Bacos. LONDON: 7, FLEET STREET, E.G. 1876. «- INDEX TO CATALOGUE. Page Accounts, Lam of. Pulling ... 55 Actions at Law. Browne 57 Kerr 41 Williams 53 Administration Bonds. Cliadwick 15 Admiralty, Practice. Coote ... 29 Advowsons. Mirehouse 59 Agricnltnral Holdings.' Bund 16 Aliens, cutler ... 29 Arbitrations. Redman 18 Articled Clerk. Mosely 22 Attachment, Foreign, Brandon ... 42 Average* Cnimp ... 8 Awards. Eedman ... 18 Banking. Grant ... 18 Keyaer ... 55 Bankniptcy. KobBon 5 MamuU. Bulley 8c Bund ... 47 In County Courts. Davis 10 Index. Linl^later ... 57 Bar. Examination Journal 52 Smith 42 Pearce 56 Barbados. Laws of .. 56 Belligerents. Hamel 55 BUls of Exchange. Grant 18 Bills of Sale. Hunt . 14 Blackstone. Stephen's 7 Page Blockade. Deane ... 57 Bookkeeping, SoUcUon', Coomba. 44 Boundaries. Hunt ... 45 Brokers. Keyser ... 65 Burgesses Manual. Caches ... .« 5& Carriers, Inland. Powell ... 34 Baihiiay. Shelf ord 17 Chamber Practice. C0m.£aw. Parkinson 41 Chancery Practice. Goldsmith 27 Hunter 27 Drafting. Lewis ... 21 Charitable Trusts. Tudor 38 Church Building. Trower 43 Pewe. Heales ... 43 Church and State. Hak ... 59 Civil Law. Tomklns & Jeucken 34 Claims and Defences, Forme of. Drewry... 12 Collieries. Bainbridge 22 Colonial Law. Barbados 56 Commentaries. Stephen'sBlaekstone's 7 Phlllimore'g 23 CommonPorm Practice. Coote 15 Common Law, LawJbEtpMy. Chute 13 Practice. Dixon ... 35 Lush 19 Kerr 41 Companies. Grant ... 45 Shelford 17 Compensation, Law of. Ingram ... 38 Shelfoid 17 Page Consolidation Acts. Shelford 17 Conspiracy, Law of. Wright ... 54 Constitntion. May ... 25 Stephen 7 Constitutional ECistory. Tulton „ „iS Contentions Probate Practice. Tristram .m 60 Contraband of War. Moseley 42 Deane 57 Contracts, Specific Performance. Fry 53 Contributories. Collier 47 Conveyancing, Introduction. Lewis 21 Practice. Barry 36 Smith 37 Tudor 26 Forms. Barry ... 36 Crabb 28 Christie 28 Kelly 31 Shelford 28 Rouse 32 Convictions, Synopsis of. Oke ... 48 Forms. Oke ... 49 Co-operation. Brabrook ... ... 43 Copyholds, jEnfranchitement. Rouse 46 Law of. Scriven ... 38 Coroner. Baker ... 56 Corporations in GeneraL Grant 45 Costs, Law of. Gray... 55 County Cotirts. PracHee. Davis ... 10 Practice inEquity,Bani' ruptcy, J;c. Davis 10 Practice in AdmtrcUly. Coote 29 O' »- INDEX TO CATALOGUE. Page Criminal Law. Davis 39 Oke .. 4S Cnrates. Field ... 58 Customs Laws. Hamel 9 Deeds. Tudor ... 26 Descents. Fearne ... 58 Dictionary, Law. Mozley & VVhiteley 11 Discovery. Hare ... 19 Divorce. Practice. Browning ... .„ 26 Domestic Servants. Baylis 40 Draftsman (The). Kelly 31 Drainage. Wilson ... 58 ■Woolrych 41 Ecclesiastical. Practice. Coote ... 59 Judgment. Bayford 59 Burder v. Heath... 59 Gorham Case ... 59 Lougv. Cape Town 59 Martin v. Macko- nocbie .... «.'. 59 PhiUimore ... 59 Hebbertt7.Purchas 59 Election, Law. Davis 35 England, Laws of. Blackstone 7 Francillon ... 57 Stephen 7 English Bar. Pearce 66 Smith 42 Eqtiity, County Court). Davis 10 Doctrine and Practice. Goldsmith .. 27 Draftsman. Lewis 21 Equity & Law. Chute 13 Judicature. Trower 16 Pleader, Drewry ... 40 Suit in. Hunter ... 27 Evidence, County Court. Davis 10 ■Biacovery of. Hare.. 19 Indian. Pield ... 42 Law-of. Powell ... 6 mila^ Wigram .. 44 Circumetantial.'Wiila 43 Examinations. Bar Examination Journal 52 Law Examination Journal 50 Mosely's Articled Clerks'HandyBook 22 Fences. Hunt. ... 45 Elnal Examination Guide, Bedford ... 20 Fisheries. Bund ... 46 Oke ... 48 Forestiores. Hunt ... 45 Williams V.Nicholson 57 Forms, Conveyancing. Barry 36 Crabb 28 Rouse 32 Magisterial. Oke... 48 Pleading. Chltty ... 64 Greening 57 Probate. Chadwick 31 Frauds. Hunt ... 14 Game Laws. Oke ... 48 Gas Companies Acts. Michael and Will ... 33 Guarantees. DeCoIyar 12 Highways. Glen ... 60 House of Lords, Sigeit. Clark ... 24 Practice. May ... 25 Income Tax Laws. Uowell 34 Indian Penal Code. Analysis, Cutler&Grilfin 27 Indian Statutes, Index. Field 1.. 42 Industrial Societies. Brabrook 43 Institutes of English Public Law. Nasmith 24 Intermediate Examine^ tion; Bedford ... 20 Page International Law. Deane 67 Hamel 53 PhiUimore 23 Intoxicating Liquors Act. Oke 43 Joint Stock Companies. Collier 47 Shelford 17 Accounts. Pulling 55 Judicature. Bedford 20 Rogers 35 Trower 16 Webb 35 Jurispmdencfe. On Form of the Law. Holland 54 Webb 35 Justice of Peace, oke 48 Labour Laws. Davis 5 Land Settlements. Bund 58 Landlord and Tenant. Fawcett 13 Lands Clauses Acts. Ingram 38 Shelford 17 Law Dictionary ... H Law Student's Mag. 50 Law Studies. Mosely... 22 Smith ... 42 Leading Cases, BealProperty. Tudor 26 Leases. Orabb 28 Rouse 32 LegacyDuties.Shelford 39 Libel. Starkie 14 Licensing Laws, oke 48 Life Assurance. Blayney 56 Lights (Window). Latham 31 Local Board Election. Glen S9 Local Government. Glen » 39 Locus Standi. Clifford 8: Rickards 30 Lunacy. Phillips ... 53 Magisterial Law. oke 48 Forms. Oke 49 TT o- INDEX TO CATALOGUE. Marine Insurance. Crump s Maritime Warfare. Deane 57 Hame] . 55 Masters and Servants. BayliS Davis ... 40 ... 5 Masters and Workmen. Lovesy 54 Mayor's Court Practice. Brandon 42 Memoirsof— lyndhurstse Talfourd 56 Militia Laws. Dwyer 68 Mines and Minerals. Bainbridge 22 Mortgages. Fisher... 19 Recuse... 32 Municipal Law. Caches 56 Grant 45 Naturalization. Cutler 29 Hegligence. Saiinders 33 Farliamentaiy. Clifford & Stephens . 30 May 25 Partnership. Dixon . 33 Tudor's Pothier ... 57 Patent Cases. Higgins 37 Patents.' Norman ... 67 Petty Sessions, oke. 48 Pews. Heales 43 Pleading, Common Xauf.Chitty 54 Greening 57 ' 'nfilliams 53 Equity. Drewry ... 40 Levis 21 Poor Law, Ortfe^-j. Glen 53 Page Precedents, Conveyancing, Barry 36 Crabb ... ... 28 Rouse 32 Pleading. Chitty,jun. 54 Preliminary Exami- nation Journal ... 62 Principal and Surety. De Colyar ... "„ 12 Private Bills. Clifford & Stephens . 30 May 25 Private Law. Nasmith 24 Prize Law. Lushington 43 Probate, Practice. Coote ... 15 Tristram 60 Forma. Chadwick 15 Dntiei. Shelford ... 39 Provident Societies. Brabrook 43 PnWic Health. Glen S9 Public Law. Nasmith 24 Railways. Shelford ... 17 Compenaation, liigram 38 Heal Property. Tudor 26 Chart. Feame ... 58 Seaborne 40 Referees' Court. Clifford & Stephens . SO Registration. Davis... 35 Religious, Doctrine. Burder v. Heath 59 Diacipline. Long v. Cape Town 59 Reporting Cases. Cutler 56 Ritual. Bayford ... 59 Hamel ... 59 Roman Law. Gaius . 41 Ortolan's 30 Tomkins 40 Tomkins & Jencken 34 Salmon Pisheries. Bund ... ... 46 Page Servants. Baylls- ... 40 Sewers. Woolrych ... 41 Sheriff's Court. Davis 10 Short Hand. Gumey 56 Slander, starkie ... 14 Specific Performance. Fry 63 stamp Lawa. Dowell 17 Stock Exchange. Keyset 65 Succession Duty. Shelford 39 Suit in Equity. Hunter 27 Summary Convictions. Oke 48 Tariffs and Treaties. Hamel 9 Hertslet 36 Tenancies, Agricul- tural. Bund ... 16 Time Table. Bedford 20 Tithes. Schomberg... 69 Torts. Underbill ... 31 Trade Marks. Adams 30 Treaties. Hertslet ... 36 Trusts, Charitable. Tudor 33 Turnpike Laws. Oke 48 'Vendors & Purchasers. Seaborne 40 Water Companies A,cts. Michael and Wm ... 33 Wills. Coote 15 Crabb 28 Tudor 26 Wigram ... 44 Winding-up. CoUler 47 Shelford 17 Window Lights. Latham SI Wrongs. Underbill ... 31 ©. f afa maxkn ^nhlm^tH h^ P^ssrs. iittfertoort^. ROBSON'S BANKRUPT LAW.— Third Edition. A TREATISE on the LAW of BANKEUPTCY ; containing a full exposition of the Principles and Practice of the LaTv as altered by the Bankruptcy Act, 1869. With an. APPENDIX of the Statutes, Rules, Orders and Forms. By George Young Robson, Esq., of the Inner Temple, Barrister at Law. Third Edition, thoroughly revised, and with the latest decisions. 8vo. cloth. (Just ready.) DAVIS'S IJ\30UR IiAVtrS OF 1875. THE LABOUR LAWS OF 1875, with Introduction and Notes. By J. E. Davis, Esq., Barrister-at-Law, and late' Police Magistrate for Sheffield. 8vo. 12s. cloth. "Mr. Davis has something to say, and helcnows how to say it. He has brought to the task information which is the result of many years' practice as police magistrate at Stoke-upon-Trent and at Sheffield. Looking at the work as a whole, we do not doubt that its com- prehensive spirit and no less eom- tnendable accuracy will procure for it the desired favourable reception. The magistrate who has not upon his shelves Davis's Labour Laws will only have him- self to thank if he is foiled by any dif- ficulty which may arise in the course of his administration. No less sincerely do we advise the practitioner to arm him- self with what will probably be the standard work on the subject. He will find the arrangement good, and the ex- planation of the procedure exceptionally lucid," — Law Magazine. " This is a class of book which is very much wanted, and should receive every encouragement. Mr. Uavis says that his object has been to combine a popular comment with astrictlypracticaltreatise. In this he has succeeded. The book is in every respect careful and thoughtful, it gives the best reading of the law which we have, and furnishes in extenso all the Acts of Parliament relating to the subject." — Law Times. " Mr- Davis's hook is not a reprint of the acts with a few notes, but an original and complete treatise, and it will be ap- preciated by those who are concerned in the working of the labour laws."-*-Zaw? Journal. " ' The Labour Laws ' are the subject of a treatise by Mr. J. E. Davis which magistrates and practitioners will find useful." — Daily News. > "A good book on this subject should - fulfil two distinct functions by no means easy to combine. Mr. Davis has, in our- opinion, successfully fulfilled both these; requisites, and may be congratulated, upon having produced a book which will probably become the standard work on this important subject." — Solicitors Journal, "The best exposition that we know* of, of the labour laws of the country." — Hcho. "There is an excellent index, which adds to the value of the book for re- ference. There is much information in the Labour Laws of 1875, which is of importance to ironmasters, colliery pro- prietors and all employers of manual labour, and to them we recommend Ml. Davis's book with confidence." — London Iron Trade Excliange, -& 0- LAW WORKS PUBLISHED BY FOVTELIi ON EVIDENCE. By CUTIiER and GRIFFIN.- Fourth Edition. POWELL'S PRINCIPLES and PRACTICE of the LAW of EVIDENCE. Fourth Edition. By J. Cutlek, BA., Professor of English Law and Jurisprudence, and Professor of Indian Jurispi*udence at King's College, London;' and E, F. Griffin, BA., Barristers-at-Law. Post 8vo, 18s. cloth. *#* This edition eontains the alterationit necessary to adapt it to the practice under the Judicature Acts, as well as other material addUions. '* The editors of this work put forward 'no claim to that exhaustiveness which other works dealing with thelaw of evi- dence aim at.' Their desire, on the contrary, is to 'adhere to the principle* of their author * of not overloading the book with cases.' We heartily ap- prove the principle; which, however, is somewhat difficult of application. We must add, however, that in most In- stances the cases are tersely abstracted, and the convenience of the reader is consulted by references to more than one set of reports. The plan of the book is to give pretty frequently, and» as far as we can discover, in almost every chapter, a 'rule' of general appli- cation, and then to group the cases round it. These rules or axioms are printed in a distinctive type The work has been pruned and remodelled by the light of the Judicature Acts. The authors give in an appendix the Indian Evidence Acts, with some Indian deci- sions thereupon, and occasionally notice these acts in the text. On the ivhole we think this a good edition of a good book. It brings down the cases to the latest date, and is constructed upon a model which we should like to see more generally adopted." — Solicitor^ JowtuU. "The plan adopted is. we think, an admirable one for a concise handy-book on the subject. Such maxims as that ' hearsay is inadmissible,' are given at the head of the chapter in laige type, and then follow the explanations. The Indian code of evidence given at the end of the book deserves to he read by every student, whether going to India or not. The few rules of the English law of evidence which are purely statu- tory are also given verbatim, including the two orders of the Judicature Act, 1875, which appear to be corrrctly ap- preciated. The present form of Powell on Evidence is a handy, well printed and carefully prepared edition of a book of deserved reputation and authority." — Imw Journal. *' We have received the fourth edition of'* Powell's Principles and Practice of the Law of Evidence,' by Cutler ajid Griffin. We areinformed in the preface that the results of the Judicature Acts as regards evidence have been duly noted, whilst the work itself has been rendered more comprehensive. It is an excellent summary of principles." — Laa Times. " There is hardl/ any branch of the law of greater interest and importance, not only to the profession, but to th^ public at large, than the law of evidence. On this branch of the law, moreover, as well as on many others, important changes have been effected of. recent years. We are, therefore, all themore in- clined to welcome the appearance of the> Fourth Edition of this valuable work."' — Law Examinaiion Journal. " In Powell's Law of Evidence, of which a fourth edition by Messrs. Cutler and Griffin has now been published, the Indian Evidence Act and the rules of evidence adopted in the Anglo-Indian courts occupy a prominent place, and while this must forjn a special recom- mendation of the work to students in- tending to go to India, it is a feature which others besides will find reason lo appreciate. To the general practitioner, however, the main value of the work must consist in its treatment of the law prevailing in this country and in England, and in this respect we confi- dently recommend the work to our readers. Tlie principles and practice of the law of evidence in equity are also more fully treated than in any modern work on evidence with which we are acquainted, and the provisions of the Judicature Act, as well as the new English rules, have been incorporated with this edition, besides many impor- tant statutes passed since the date ( UG8) of the preceding edition. To the stu- dent we know no work on the law of evidence we could more strongly recom- mend, and both branches of the profes- sion will find Powell's Law of Evidence a work which can be consulted with confidence."— /r«A Law Times. STEPHEN'S NEW COMMENTARIES.-7th Edit. 1874. Mr. SERJEANT STEPHEN'S NEW COMMEN- TARIES ON THE LAWS OF ENGLAND, partly founded on Blackstone. The Seventh Edition, by James Stephen, Esq., LL.D., Judge of County Courts, late Professor of English Law at King's College, London, and formerly Recorder of Pooler 4 vols. 8vo. 4L 4s. cloth. "The position of the Work in reference to the Judicature Act, 1873, also seema to call for some remark, as the profession will naturally wish to know whether ihe changes introduced by that important measure will Be found embodied in the present edition. To this question I reply that the chief enactm-^nts of that Act will be found in these pages, and that I have explained their effect to the student throughout to the best of my ability."— i:a:(rac(/n»» tJie Pr^ace to the 7th Edition. From the *^Lato Journal.'* ^ " It is unnecessary for us on this 8eca- sion to repeat the eulogy which six years ago webesrowed,in 1868,not without just reason, on the Commentaries as they then appeared. It has been remarked that Stephen's Commentaries enjoy the spe- cial merit of being an educational work, not merely a legaJ text book. Their scope is so wide that every man, no matter what his position, profession, trade or employment, can scar'cely fail to find in them matter of special in- terest to himself, besides the vast fund of general information upon which every Englishman of Intelligence may draw ■With advfuitage." From ihe "Solicitors' Journal." " A work which has reached a Seventh Edition needs no other testimony to its usefulness. And when a Jaw book of the size and costliness of these 'Com- mentaries' passes through many edi- tions, it must be taken as established that it supplies a need felt in all branches of the profession, and probably to some extent, also,,outside the profession. It is difiScult indeed to name a law book of more general utility than the one before us. It is (as regards the greater part) not too technical fo^ the lay reader, and not too full of detail for the law student, while it is an accurate and (considering it!i design] a singularly complete guide to the practitioner. This result is due in no small degree to the mode in which the successive editions have been re- vised, the alterations in the law being concisely embodied, and carefully inter- woven with the previous material, form- ing a retreshing contrast to the la- mentable spectacle presented by certain works into which successive learned editors have pitchforked headnotes of cases, thereby rendering each edition more unconnected and confusing than its predecessor. As the result of our examination we may say that the new law has, in general, been accurately and tersely stated, and its relation to the old law carefully pointed out." From the " Law Times'* "We have in this Work an old and valued friend. For years we have had the last, the Sixth Edition, upon our shelves, and we can state as a fact that when our text books on particular branches of the Law have failed us, we have always found that Stephen's Com- mentaries have supplied us with the key to what we sought, if not the actual thing we' required. "We think that these. Commentaries establish one important proposition, that to be of thorough prac- tical utility a treatise on English Law. cannot be reduced within a small com- pass. The subject is one which must be dealt with comprehensively, and an abridgment, except merely for the pur- poses of elementary study, is a decided blunder. Of the scope of the Com- mentaries we need say nothing. To all who profess acquaintance with the English Law tjieir plan and execution must he thoroughly familiar. The learned Author has made one con- spicuous alteration, confining 'Civil Injuries' within the compass of one volume, and commencing the last volume with * Crimes,'— and in that volume he has placeda Table of Statutes. In every respect the Work is improved, and the present writer can say, from practical experience, th^at lor the Student and the Practitioner there is no better Work published than * Stephen's Commentaries.' " From'the " Law Examiriation Journal" "This most valuable work has now reached its Seventh Edition. Those who desire to take a survey of the entire field of English Law cannot dq better than procure this work. For a general survey of the entire field of English Law, or, at least, for a comparative survey of different branches of la;w, Stephen's Commentaries are unrivalled; and we may observe that these Com- mentaries should not he used merely as a hook of reference, they should be care-' fully studied." CRUMP'S PRINCIPIiBS OF MARINE INSURANCE. . THE PRINCIPLES OF THE LAW RELATING to MARINE INSURANCE and GENERAL AVERAGE in ilngland and America, with occasional references to French and German Law. By F. Octavius Crump, of the Middle Temple, Esq , Barrister at Law. In 1 vol. royal 8vo. 21s, cloth.. " This is decidedly a clever book. We always welcome cordially any genuine effort to strike out a new line of legal exposition, not merely because such effort may more effectually teach law,' but because it may exhibit a better method than we now possess of ex- pressing law. We have been at pains TO search the book for many of the most recent cases in marine insurance, and although some of them are exactly of a character to puzzle and embarrass a codider, Mr. Crump has dealt success- fully with them. We think we may fairly congratulate the author upon the production of a work original in design, excellent in arrangement, and as com- plete as could fairly be expected," — Law Journal. " The principles and practice of general average are included in this admirable summary." — St- CHUTE'S EQUITY IN RELATION TO COMMON LAW, : EQUITY UNDER THE JUDICATURE ACT, or the Relation of Equity to Common Law. By Chaloner William Chute, Barrister at Law; Fellow of Magdalen College, Oxford j -Lecturer to the Incorporated Law Society. Post 8vo. 9s. cloth. Mr. Chute has a chance of prolonged existence. His book is not an the Judtca- ""^1 V *^*j^ manner is eudueatly philo- soiihical, and proves the capacity of the author for the position of a lecturer, while It IS jQst the kiud of teaching by which, students are attracted to the light. Stu- 'deota may here congratulate themselves on the possibility ot finding, within the limits of two hundred pages, many of the chief doctrines of Equity, set forth briefly, lucidly and completely."— iow Jounud. " Alt the more important branches of Fquity are fully discussed by Mr. Chute ; and we may add that his style presents a very agreeable contrast to the general -style of law books, lu conclusion, we would heartily recommend this mo^t in- structive and interesting work to the perusal of the student, regretting that the limits -of oar space c'oafiue us to so brief a notice of it.^' — Laio £xamination Reporter, ** Mr, Chute's lectures on Equity at- tracted considerable attention when they were delivered before the Incorporated' Law Society, and he has done wisely in making .them the basis of the present volume, which can scarcely fail to become a standard work on the subject of which it treats," — Sdoming Post, *' The book is deserving of praise, both for cleiirness of exuositiou and tor the in- teresting way in wnich modern cases are U3ed to illustrate the doctrines expounded. As it stands it appears ,to us to be a useful fuiue to the leai^iug principles uf Equity urisprudence. The oook is written in easy and familiar lan^uai^e, and is likely to prove more attractive to the student than many formal treatises."— «So/icworj' Journal. " I'o the student commencing to study under'the new system Mr. Chute's treatise may prove of service, lie thinks clearly, wriifs very well. As a small and nieri- tonouscontributiou to the history of juris- prudence it deserves to be welcomed," — Jjojo Times. " The work is conscientiously done, and will be usenfl to the student at the ijreseot moment." — Echo. "Mr. Chute's book is founded upon lectures delivered i>y him to the students at the Law Institution. The object of it is to point out concisely the principles on which the doctriiiesof Eiiuity depend, and to show the relation of equity to the commrin law, and the work is a useldl one for the class of persons to whom the lectures* were delivered." — Athenau^. FAWCETT'S XmAW^ OF I.ANDZiORD AND TENANT. A COMPENDIUM of the LAW of LANDLORD and TENANT. By William Mitchell Fawcett, Esq., of Lincoln'? Inn, Barrister-at-Law. 1 vol, 8vo. 14s, cloth. " This new compendium of the law on a wide and complicated subject, upon which inforroation is constantlyrequired by a vast number of persons, is sure to be In request. It never wnnders Irom the point, and being intended not for students of the law, but for lessors and lessees, and their immediate advisers, wisely avoids historical disquisitions, and uses language as unteehnical as the subject admits." — Law Journal. ** Mr. Fawcett takes advantage of this characteristic of modern law to impart to his compendium a degree of atiiken- ticity which greatly enhances its value as a convenient medium of reference, for he has stated the law in the very words of the authorities."— Xaw Magazine. "The amount of information com- pressed into the book is very large. The plan of the book is extremely good, and the arrangement adopted has enabled the author to put together in one place the whole law on any particular branch of the subject, and to avoid repetitions. In this respect, though probably from its smaller size it must contain less informa- tion than Woodfall, it will be found far more convenient for ordinary use than that treatise." — SuHcilors' Journal. **Abo7e all. it has been his purpose to state the law in the language of the authorities, presenting the principles enunciated in the very words of the judges. Another excellent feature is a concise summary of the eifect of each enactment in the marginal notes. It will be seen from this that the^ book is thoroughly practical; and as such will doubtless find a favorable reception irom the profession."— iaw Times. -O 14 -o LAW WORKS PUBLISHED BY FOLKARD ON SIiANDER AND IiIBEZi.— Fourth Xdit*on. THE LAW OF SLANDER AND LIBEL (founded Upon Starkie's Treatise), including the Pleading and Evidence, Civil and Criminal, adapted to the present Procedure; also MALICIOUS PROSECUTIONS and CONTEMPTS of COURT. By H. C. FOLKARD, Barrister at Law. In One thick vol. Roy. ,8vo. 45»- cloth. " It is well that such a treatise should have been re-edited, and it is well that it should have been edited by so careful and painstaking a man as Mr. Folkard." '—Law Mdffazine. " The real merit of the author of such a work as this, must consiiit in careful collation and aystem^ic arrangement of decided cases. No one can say that Mr. Polkard has failed in the full discharge of this ontToua duty, and we are sure that he will earn, as he will obtain, the gratitude of the profession/' — Laio Journal. »' We recommend Mr. Folkard*s work to the attention of the profession and the public. It is, as now edited, very valuable."— Zrtw Times. ** It would be difficult to find any part of his subject which Mr. Folkard has not fully inve4tigated, and the result is a valuable addition to the lawyer's library, which for many years has been much needed." — Justice of the Peace. ** It has 6een most laboriously exe- ' cuted. The profession may, we think, be pretty confident that whatever has been decided upon the Law nf Libel will be found here.*^— aa/tcitor«* Journal. HUNT'S LAW OF FRAUDS AND BILLS OF SALE. THE LAW relating to FRAUDULENT CONVEY- ANCES under the Statutes of Elizabeth and the Bankrupt Acts; with Remarks on the Law relating to Bills of Sale. By Arthur Joseph Hunt, of the Inner Temple, Esq., Barrister at Law, Author of "A Treatise on the Law relating to Boundaries, Fences and Fore- shores." Fost 8vo., ds. clothe " Mr. Hunt has brought to bear upon the subject a clearness of statement, an orderliness of arrangement and a subtlety of logical acuteness which carry him far towards a complete sys- teniatization of all the cases. Neither has his industry been lacking : the cases that have arisen under "The Bank- ruptcy Act, 1869," and under the Bills 6f Sale Act, have been carefully and completely noted up and disposed by him in their appropriate places. The index also is both accurate and careful, and secures much facility of reference to the various matters which are the subjects of the work." — Law Magazine. "Though smaller in size, Mr. Hunt's book deals with fraudulent conveyances under the Bankruptcy Acts, a subject which Mr. May in his work left almost untouched, although his book has the undoubted merit of being the first to break fresh ground in treating fraudu- lent conveyances in a separate volume. In reviewing that book last year we took occasion, while praising the in- dustry and care with which it was com- piled, to remark on the obscurity of its style. In this respect its younger rival has considerable advantage. Mr. Hunt's book is 3S readable as a treatise on so technical a subject can well be made. Mr. Hunfa arrangement of his materials follows an orderly and intelligible plan. The index is apparently carefully pre- pared, and the table of cases shows that none of the recent cases have been over- looked. Mr. Hunt has produced a really useful book unencumbered by useless matter, which deserves great success as a manual of the law of fraudulent dis- positions of property."— Zaw Journal. "The author has collected with in- dustry and care the authorities bearing on the question he has undertaken to deal with. The matter is conveniently broken up, and the readeris assisted by a good index."— Solicttorg' Journal. -O -o MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 15 COOTE'S PROBATE PRACTICE.— Seventh Edition. The COMMON FORM PRACTICE of the HIGH tUOURT of JUSTICE in granting Probates and Administrations. By Henry Charles Coote, F.SA., late Proctor in Doctors' Commons, Author of " The Practice of the Ecclesiastical Courts," &c. &c. Seventh Edition. In 1 vol. 8vo., 25s. cloth. *»* The Forms as pritUed in this work are in strict accordance vnth the Orders of Court and Decisions of the Right Hon. Sir James Hannen and are those which are in use in the Principal Registry of the Probate Divisional Court. " The above is another name forwhat Court of Probate in the High Court of is commonly known to the profession as Coote's Probate Practice, a work about as indispensable in a solicitor's office as any book of practice that is known to us. The seventh edition is chiefly dis- tin^tshahle ttora the sixth edition in this, that certain important mod^fica^ tions and alterations are effected which have been rendered necessary by the Judicature Acts. Judicial decisions subsequent to the last edition have been carefully noted up. We notice several new and useful forms; and the author has not only attempted, but has in the main succeeded in adopting the forms and directions under the old Probate practice, as embodied in previous edi- tions of the work, to the new procedure under the Judicature Acts. Solicitors know that the difficulties in the way of satisfying the different clerks at Somerset House are frequently great, and there is nothing so likely to tend to simplicity of practice as Mr« Coote's book." — Law Times. •' In less than twenty years the work has reached a seventh edition, and this new edition finds its raison d!^e in the changes introduced by the Judicature Acts. Mr. Coote has set forth so much -of the recent legislation as merged the Justice, and has explained the effects of such legislation as regards the subject matter of his book. He has also amended his forms in obedience to the new law. Theedition, sofaras Common Form Business is concerned, maintains the reputation of the work, and in the present day, when every solicitor con- ducts Probate Business, will doubtless command the same popularity as those editions which have preceded it." — Law Journal. "Nearly five years have elapsed since the publication of the last edition of this book, which has long held a high reputa- tion among solicitors, but we find little change in its contents. The Judicature Acts, which have rendered obsolste so many works of practice, have left this almost untouched. The chief changes in this edition appear to be the altera- tion of the headings of many of the forms; the insertion of several new cases and of some of the judgments of Dr. Bettesworth ; of the fees to be taken by solicitors and paid to the Court in Common Form Business, as directed by the Rules of 1874; and a considerable increase in the number of forms in Non- contentious Business." — Solidton' Journal, CHADWICK'S PROBATE COURT MANUAIi. Corrected to 1876. EXAMPLES of ADMINISTRATION BONDS for the COURT of PROBATE ; exhibiting the principle of various Grants of Administration, and the correct mode of preparing the Bonds in respect thereof; also Directions for preparing the Oaths ; arranged for practical utility. With Extracts from Statutes ; also various Forms of Affirmation prescribed by Acts of Parliament, and a Supplemental Notice, bringing the Work down to 1865. By Samuel Chadwick, of Her Majesty's Court of Probate, *' We undertake lo say that the possession of this volume by practitioners will prevent n.auy a hitch and awkward er of Agriculture Journal. "He intends it for landowners, far- mers, land stewards and the like. All who have any interest in landed pro- perty may read it to advantage." — Land and Water. "We hope that this little book may realize the anticipation of its author and be of service to the classes for whose use it has been specially de- signed."— 2%e Field. " Mr. Willis Bund has compressed intp a simple and convenient form the information needful for understanding the bearing of the Agricultural Holdings Act on the law of compensation for un* exhausted improvements." — Saturday JReview. " We may congratulate Mr. Bund nn having laid the law down very clearly to the lay mind." — Gardeneri? Chronicle,. MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 17 ^HEIiFORD'S RAIXi^VAYS.— Fourth Bditioiij by Glen. SHELFORD'S LAW of RAILWAYS, containing the whole of, the Statute Law for the Regulation of Railways in England, Scotland and Ireland. With Copious Notes of decided Cases upon the Statutes, Introduction to the Law of Railways and Appendix of Official Documents. Fourth Ediiion,by W.Cunningham Glen, Barrister at Law, Author of the "Law of Highways," "Law of Public Health and Local Government," &c. 2 vblsh royal 8vo. 63s. cloth. • 'Though we have not had the oppor- tunity of going conscientiously through the whole of this elaborate compilatioa, we have been abk' to devote enough time to it to be able to speak in the nighest- terms of the judgment and ability with which it has been prepared. Its execu- tion Quite juHtiBes the reuutatiou which Mr. (>leu has already acquired as a legal writer, and proves that no one could have been more properly singled out for the duty he has so well discharged. The ibprk must take its unquestionable ^silion as the leading Manual of the Railwaif Law tf Great Britain The cases seem to have been examined, and their effect lo be stated with much care and accaracyi and no channel from which in- formation could be gaiued has been neg- lected. Mr. Ulen, indeed, seems to be saturated with knowledge of his subject. ... The value of the work is greatly in- creased by a number of supplemental de- cisions, which give all the cases up to the time of publication, and by an index which Appears to be thoroughly exhaustive.'* — Law Magazine* " Mr, Glen has done wisely in preserving that reputation, and, as far as possible, the text of >helford— though very extensive alterations and additions have been re- quired. But he has a claim of his own. He is a worthy successor of the original author, and possesses much of the same industry, skill in arrangement and astute- ness in enumerating the points really de- cided by cited cases. But we have said enough of a work already so well known." —Law Timet. . , , ■ > , . "Mr Glen has modestly fcmnded his work as a superstructure on that of Mr. Leonard Shelford. but he has certainly claims to publish ii as a purely indepen- dent composition. 'J'he toil has been as great, and the reward ought to be as -complete, as if Mr. Glen had disregarded all his predecessor^ in the produutiou of treatises on railway law Since the year 1864 he has been un- ceasingly engaged in collecting materials, and though he has been ready for the printer for some time, and hasdelayed the appearance of the volumes in the expecta- tion of legislative rhaiiRes in railway law, yet he has expended full five years of care aod attention on his work. Let us hope that he will have no cause to think his labour has been in vain. At ani/ rate we may venture to predict that Mr. Cunning- ham a leu's edition of S/ietford 07i Hailweua will be the st nidard work of our day in that department (iflaw^^-~Law Journal, •' Far be it fr>m us to under value Mr. Shelford's labours, or to disparage his merits. iSxA we may nevertheless be per- mitted to observe that what has hitherto been considered as ' the best work on the subject ' CShelford), has been immeasuiahly improved by the applicaiioji of Mr, Glen's diligence and learning. . . . Sufficient, however, has been done to showthaiit isineveryrespect worthy of the reputation which tnc work has always enjoyed."— JuiriVe ofthePeace, *' The practitioner SviU find here col- lected togetherall the. enactments beariiig on every possible subject which may come before him in connecrion with railways or railway travelling. Whatever uuea- , tions may arise the lawyer, who has this bo"k unoii his shelves, may say to him- self, ' If there iia,s been any legislation at all connected with this branch of the. subject I shall at once iind it in SheU ford ;' and it needs not to be said that on this account the book will be a very 'com- fortable* one to possess. 'J'he collection is enually exhaustive in the matter of rules, orders, precedents and documents of otfacial authoiity."— ^/iViMrj* Jourrio/. DO'tVEI.L'S STAMP DUTIES AND STAMP LAWS. A HISTORY and EXPLANATION of the STAMP DUTIES, containing Remarks on the Origin of Stamp Duties, a History of the Duties in this Country from their commencement to the present time, Observations on the past and the present State of the Stamp Laws, an Explanation of the System and the Administration of the Tax, Observations on the Stamp Duties m Poreien Countries and the Stamp Laws at present in force in the United Kingdom ; with Notes, Appendices and a copious Index. By Stefhex Dowell, M.A., of Lincoln's Inn, Assistant Sohcitor of Inland Revenue. 8vo. 12s. QcL cloth. 18 LAW WORKS PUBLISHED BY GRANT'S BANKERS AND BANKING COMPANIBS, by R. A. Fisher, GRANT'S TREATISE on the LAW RELATING- TO BANKERS AND BANKING COMPANIES. Third Edition. With an Appendix of the Statutes. By R. A Fisher, Esq., Judge of County Courts. 8vo. 28«. cloth. "Eight years sufficed to exhaust the Becond edition of this valuable and standard work, ve need only novr notice the improvements which have been made. We have once more looked through the work, and recognize in it the sterling merits which have acquired for it the high position which it holds in standard legalliterature. Mr. Fisher has annotated all the recent cases." — Law Times. "Prior to the publication of Mr. Grant's work on this sul^ect, no trea- tise containing the required inForma^ tion existed ; and, since its appearance, such important alterations respecting banks and bankers have been intro- duced, that the work needed in many parts entire reconstruction and arrange- ment. The last two editions have been entrusted to the care of the gentleman whose name is attached to the work. Mr. Fisher's name is in itself a guaran- tee that his duties of editor have been ably and conscientiously performed. In this respect we can assure those interested in the subject of this book, that they will in no respect be din- appointed ; obsolete and immaterial matter has been eliminated, and the present edition presents the existing law of bankers and banking companies as it at present exists." — Justice of the Peace. "It is eight years since Mr, Fiaher published the second edition of this practical book, and it now appears again re-edited by the same hand. Its steady sale shows that the public for whom it is written have recognized the kindness that was meant them, and makes a more elaborate recommendation super- fluous. We must add, however, that the additions to the work, and the alterations in it which IMr. Fisher has made, are-, as far as we can judge, real improvements, and that he has not failed to follow out the recent cases. The book used with care will no doubt be of great practice service to bankers and their legal advisers."— iSo/ics(or«* Journal, RBDMAN ON ARBITRATIONS AND AWARDS. A CONCISE TREATISE on the LAW of ARBI- TRATIONS and AWARDS; with an Appendix of Precedents and Statutes. By Joseph Haworth Redman, oC the Middle Temple, Esq., Barrister at Law, Author of "A Treatise on the Law of Railway Companies as Carriers." 8vo. 12$. cloth. " A singular feature in this work is, that it has no foot notes, and this is a decided recommendation. Thearrange- ment is good, the style clear, and the work exhaustive. There is a useful ap- pendix of precedents and statutes, and a very good index."— Xaw Times. ** This is likelyto prove a useful book in practice. All the ordinary law on the subject is given shortly and in a con- venient and accessible form, and the index is a good one. The book is of a portable size and moderate pric^ and contains a fairly complete appendix of precedents. It is likely enough that it will meet a demand both in the pro- fession and amongst lay arbitrators." — SoliciUyrs' Journal. *• We have no doubt but that the work will be useful. The precedents of awards are clearly and concisely drawn. The arrangement of chapters is conveniently managed. The law is clearly stated, and. so far as we can Judge, all the important cases bearing directly on the subject are given, while the index appears reasonably copious. These facts, combined with the small- nessofthe volume, ought tomaketho, book a success.'* — Lhw Jouttial, &- FISHER'S l^AW OP MORTGAGE.-Third Edition. THE LAW of MORTGAGE and OTHER SECU- RITIES UPON PROPERTY. By William Richard Fisher, of Lincoln's Inn Fields, Esq., Barrister-at-Law. 2 vols. roy. 8vo. 60s, cloth. — ♦— (^"^^ ready.) HARE ON DISCOVERY.-Second Edition. A TREATISE on the DISCOVERY of EVIDENCE in the HIGH COURT of JUSTICE : being a Second Edition of a Treatise on the Discovery of Evidence by Bill and Answer in Equity. By Thomas Hare, of the Inner Temple, Esq., Barrister-at-La"w. Adapted to the Procednre under the Supreme Court of Judicature Acts and Rules, 1873 and 1875. By Sherlock Hare, of the Inner Temple, Esq., Barrister-at-Law. Post 8vo. 12s. cloth. "We have read his work with con- "Part TV., on Proredure, which is, of fiiderahle attention and interest, and we course, almost entirely new, shows the can speak in terms of cordial praise parts of the new rules that bearupon the of the manner in which the new pro- subject, and will^e found an excellent cedure has been worked into the old guide to country solicitors in a class of materia!. Not that the old material cases likely to be of frequent occurrence, hjis been allowed to remam unimproved. where, the real state of the facts not Inmanyinstancesnecessarychangesand heing well known when the action is amendments have been made, evincing a commenced, it is expedient to ascertain thorough appreciation of the necessities them as cheaply as possible by filing of the case on the part of the learned proceedings and interrogatories and con- editor. We purposely abstain from re- ducting the eai'lier stages of the action ferringtotheiietails of the book. *Hare in the country. On thewhole. the hook on Discovery ' has long been well known; is a useful contribution to ourtext hooka it must now become better known. All on practice; and although, considering the sections and orders of the new legis- the mafinitude of the changes in the law lation are referred to in the text, a aynop- since Mr. Thomas Hare's book first ap- sisof recentcasesisgiven.andagoodin- peared fortyyears ago, an independent dex completes the whole." — Law Times. work might have been preferable to a *' The original work speedily became new edition, at least as regards the first an authority on this subject, and has two parts, still the feeling must be re- been for years a recognized text-book spectedwhichsuggests the preservation among the profession and the Courts, of as much as possible of a book whicTi and we are pleased to see that the pre- was worthy of its eminent author. The sent editor has in no way abated his editor has incorporated his alterations care in noting up the new cases and ex- with the oricinal, so as to spare the plaining the present law and practice, reader the labour of combining for him- 80 that in inessential points the present self each statement with its necessary edition is a worthy successor to its pre- supplement, and the work remains cun- decessor." — Irish Law Times. cise and complete." — Solicitors' Journal. MR. JUSTICE LUSH'S COMMON LAW PRACTICE. By DIXON.— Third Edition. LUSH'S PRACTICE of the SUPERIOR COURTS of COMMON LAW at WESTMINSTER, in Actions and Proceedings over which they have a common Jurisdiction: with Introductory Treatises respecting Parties to Actions; Attornies and Town Agents, their QuaUfications, Rights, Duties, Privileges and Disabilities; the Mode of Suing, whether in Person or by Attorney, in FormS. Pauperis, &c. &c. &c.; and an Appendix, containing the authorised Tables of Costs and Fees, Forms of Proceedings and Writs of Execution. Third Edition. By Joseph Dixon, of Lincohi's Inn, Esq., Barrister- at-Law. 2 vols. 8vo. 46«. cloth. 20 LAW WORKS PUBLISHED BY BEDFORD'S FINAIi EXAMINATION GUIDE TO PROBATE: AND DIVORCE. THE FINAL EXAMINATION GUIDE to the LAW of PROBATE and DIVORCE: containing a Digest of Final Examination Questions, with the Answers. By E. H. Bedford, Solicitor, Temple, Author of the " Final Examination Guide to the Practice of the Supreme Court of Judicature," &c. Post 8vo. 4»,' "The examiners have added as extra the examination in acquiring due know- suhjectB in the 'Final' the Probate and ledpre of these subjects. His Guide. Divorce Law. Mr, E, H. Bedford, takes the favourite form of questions Solicitor, who seems to be always and answers, and seems to have been, anxious to keep abreast of the tide, has carefully and accurately compiled." — prepared a Guide or Manual to assiKt Law Journal. bis pupils and candidates generally in BEDFORD'S FINAI. EXAMINATION GUIDE. THE FINAL EXAMINATION GUIDE to the PRACTICE of the SUPREME COURT of JUDICATURE, containing a Digest of the Fin^l Examination Questions, with many New Ones, with the Answers, under the Supreme Court of Judicature Act. By Edwaed Henslowe Bedford, Solicitor, Temple. In 1 vol. 8vo. Is. Qd. cloth. *' Every conceivable question appears " Mr. Bedford's Final Examination to have been asked and a full answer is Guide supplies a want which will be given in each case. Mr. Bedford really much felt by students as to what they knows better thun we do what students are to read with reference to the new, require, and we have no doubt that his practice. The, Guide and Time Table compilation will be extensively used. by the same author will be found useful. It contains a sufficient index.'' — Law helps to studentsin perusing the Judica-. Times. ture Acts."^ — Law ExaminaMon Jou/rnalt- " Mr. Bedford, with hia usual diligence "The various sections, orders andt and promptitude, has contemporaneously rules of the acts have been here arranpced with the commencement of the operation - under theirproperand consecutive head-. of the Judicature Acts published for the ings in the form of question and answer, benefit of his pupils and other law can- and the result is a useful and readable didates for the Final Examination a book, which we would recommend stu- Digest of Questions which are likely to dentstokeep in view."— /ruAXaw TimeM. be set down under those Acts and the " We have in these pages a well- New p,ules, with answers thereto. The arranged and clear digest of the Final' chief point is that the answers should Examination Questions, and many new be exhaustive as well as concise, and in questions with answers, under the , this respect great merit is shown in the Supreme Court of Judicature Acts," — ' present Digtu.— Law Journal. Btandard. By the same Author, on a Sheet, Third Edition, Is. A TABLE of the PRINCIPAL STEPS and TIMES' in an ordinary ACTION in the SUPREME COURT OF- JUDICATURE. " It will not only prove of service to "The Time Table by the same author common law and chancery clerks, but presents, in a consijicuous and con- also to articled clerks in the course of venient form, the times allowed for their studies." — Lais Times. taking the various steps in an action." — La/iB Examinaiion Journal. BEDFORD'S INTERMEDIATE EXAMINATION GUIDE. THE INTERMEDIATE EXAMINATION GUIDE, containing a Digest of the Examination Questions on Common Law, Conveyancing and Equity, with the Answers. By Edward Henslowe, Bedford, Solicitor, Temple, Editor of the " Prelimi- nary," " Intermediate," and " Final," &c. 2 vols, in 1. 8vo. 148. 6d cl.' -0 ©" MESSRS. BUTTERWORTH, 7 FLEET STREET, E.G. 21 LEWIS'S INTRODUCTION TO CONVEVANCING. PRINCIPLES of CONVEYANCING EXPLAINED and ILLUSTRATED by CONCISE PRECEDENTS. With an Appendix on the Effect of the Transfer of Land Act in Modifying and Shortening Conveyances. By Hubert Lewis, B,A.,late Scholarof Emman. Coll. Cambridge, of the Middle Temple, Barrister-at-Law. 8vo. 18s. cloth. ** Mr. Lewis is eutitled to the ciedit of having produced a very useful, Hud, at tlie satue time, original work. This will appear from a mere ouUiue uf his. plan, which is very ably worked out. The mauuer iu which his dtssertations elu- cidate his subject is clear and prac- tical, and his exposilions, with the help of his precedents, have the best of all qualities in such a treatise, beiug eminently judicious and substantial. Mr. Lewis's work is conceived iu the right spirit. Although a learned and goodly volume, it may yet, with perfect propriety, be called a * handy book.* It is besides a couraoeous attempt at le^al improvement; aud it is, perhaps, by works of such a character that law reform may be best accomplished.** — Law Magaiina end Review, ** By the diligent and painstaking stu- dent who has duly mastered the law of property, this work will undoubtedly be hailed as a very comprehensive exponent of the Principles of Conveyancing." — Leguleian, or Articled Clerks* JIdagazine. " 'llie perusal of the work has given US much pleasure. It shows a tliorough knowledge of the various subjects treated of, and is clearly and intelligibly written. Students will now not only be able to become pioficient draftsmen, but, by care- fully studying Mr. Lewis*s dissertations, may obtain an insight into the hitlierto neglected Principles of Conveyancing.** —Z-egal Examiner. , ** On the whole, we consider that the work is deserving of high prutse, both for design and executi'>n. It is wholly free from the vice of bookmaking, and indicates considerable reflection aud learning. Mr. Lewis has at all events succeeded in producing a work to meet an acknowledged want, and we have no doubt he will find many grateful readers amongst more advanced, not less than among younger students." — Solicitors* Journal and Reftorter. " Mr. Lewis has contributed avaluable aid to the taw student- He has condensed the Practice of Conveyancing into a shape that will facilitate its retention on tlie memory, and his Preredents are usefully arranged as a series of progressive lesson?, whicli may be either used as illustrations or exercises." — Law Times, ZiEWIS'S INTRODUCTION TO EQUITY DRAFTING. PRINCIPLES of EQUITY DRAFTING, with an APPENDIX of FORMS. By Hubert Lewis, B.A., of the Middle Temple, Barrister-at-Law, Author of " Principles of Conveyancing explained and Illustrated." Post Svo. 12s. cloth. *«« This Work, intended to explain the general principles of Equity Drafting, as vsell as to exemplify PUadings of the Court of Chancery, will he useful to lawyers resoH- ing to the New Equity Jurisdiction of the CouiUy Courts. Practicrilly the rules that apply to the Couris will be a mass of nncertamty,-- ftine and wadinp of bills will apply to with it every itractuioner must learn the ii.uB »u _ P _ _ art of equity drattmg, and he will find no ht.ftar tonf\n>v than Mr. Lewis."— ^0 drafting and readioBT o. ^ tne composition of the Coanty Court docu ment that will be substituted for the bill. Mr. Lewis's work is therefore likely to have a much wider circle of readers thnn he could have anticipated when he com- menced it, for almost every page will be applicable to County, Court Practice, should the bill, in any shape or under any title be retained in the new jurisdiction,— without it we fear that equity in the County with it every practitioner must learn the art of equity drafting, and he will find no better teacher than Mr. Lewis."— iaw Timex. , . , •*We have little doubt that this work will soon gain a very favourable place in the esiimation of the IJrofession. Jt is written in a clear and attractive style, and is plainly the res'ilt of much thoughtful and conscientious Uboar,"— Zxiu Maga- zine and Kevieto, -© 22 LAW WORKS PUBLISHED BY BAINBRIDGB ON MINES.— Third Edition. A TREATISE on the LAW of MINES and MINERALS. By William Bainbridgk, Esq., F.G.S., of the Inner Temple, Barrister at Law. Third Edition, carefully revised, and much enlarged hy additional matter relating to Rights of Way and Water and other Mining Easements, the Construction of Leases, Cost Book and General Partnerships, Injuries from Undermining and Inunda- tions, Barriers and Working out of Bounds and Disputes with Work- men. With an Appendix of Forms and Customs, and a Glossary of English Mining Terms. 8vo. 305. cloth. ** After an interval of eleven years we have to welcome a new edition of Mr. Bainbridee*sworlLoo Mines and Minerals. It wonid be entirely superflaoos to attempt a general review of a work which has for so long a period occapted the position of the standard work on this important sub- ject. Those only who. by the nature of their practice, have learned to lean npou Mr. tiainbridge as on a solid staff, can appreciate the deep research, the admirable method, and the gracefnl style of this model treatise. Therefore we are merely reduced to the engairy, whether the law has. by force of statutes and of judicial decisions, nndergone such development, modification or change since the year 1856 as to justify a new edition 1 That qaestioa may be readily answered in the affirmative ; and the additions and corrections made in the volume before us furnish ampJe< evi- dence of the fact. It may be also stated that this book, being priced at 30/., has the exceptional character of being a cheap law publication." — Imw Jtrnmal. "Mr. Bainbridge was, we believe, the first to collect and pnblish, iu a separate treatise, the Law of Mines and Minerals, and the w~6rk was so well done that his volume at once took its place in the law library as the text book on the subject to which it was devoted. This work must be already familiar to all readers whose practice brings them in any manner in connection with mines or mining, and they well know its value. We can only say of this new edition that it is in all respects worthy of its predecessors."— /«» 'Itmet, BIOSELY'S ARTICIiED CIiERKS' HANDY BOOK. A PRACTICAL HANDY BOOK of ELEMENTARY LAW designed for the use of ARTICLED CLERKS, with a course of Study, and Hints on Reading for the Intermediate and Final Examinations. By M, S. Mosely, Solicitor, Clifford's Inn Prizeman, M.T. 1867. 12mo. 7«. cloth. " Mr. Mosely's little hook might be placed with advantage in the hand^ of students about to enter a solicitor's office. It will tell them many things, simple enough. DO doubt, but still things of which in most cases tbe^rwill be ignoraut, and for want of knowing which they mi^ht otherwise lose much time; and will afford them useful directions as to a conrse of reading." — Solicitor^ Journal. *' To some extent his plan is new, and the novelty consists in this, that he sketches oat a conrse of work and study for each year's pupilage. This plan is no doubt the one Mr. Mosely sketched oat for him- self when a cleris, and followed up with so much success. 'Jo those who really will work from the commencement of their pupilage and catry on their labours steadily aun systematically to the end it will be usefol."— Xa0 Exammation Re- porter. '* This nsefnl little book is intended for the tue of articled clerks daring the period of their articles. The style of this book is peculiar ; it is an exaggeration of the style adopted by Mr. Hayiies in his admirable Outlines of Eauity,' The author seems to think the adoption of such a style the only way to make the study of the law popular, and we are not prepared to say he iswTong."— jta» Magazine andReviem. Both part s are wel I worked ont, and will be found useful ; but in the second divisioa of each cbauier the law student will find Most valudbie informbtion, as there Mr. Mosely not only marks out the course f>f reading which he recommends for each year, but a'so carefully analyses the con- tents of each book, and points ont those chapters and subjects which it will be most uvantageons for the student to master at the first reading, and those which he ouehc to defer till a second perusal and a wmer experience have made himmorecompetent toanderstandthem. The style is remark- ably good."— ZtmA Law Timet, MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 23 PHIIiIiIMORE'S INTERNATIONAI. LAVT.— Second Edition. COMMENTAEIES on DSTTERNATIONAL LAW. By the Right Hon. Sir Robert Phillimorb, Knt., Member of H.M.'s Most Hon. Privy Council, and Judge of the High Court of Admiralty of England. 4 vols., 8vo. 6^. 3s. cloth. *»* Vol. 1 , second edUion, price 255., Vol. 2, second edition, price 28s., Vol. 8, second editiorty price SGs. VoL^, second edition^ price 34£. clothyTnaybe had separately to complete sets, Extraetfrom Pamphlet on "American Neutrality,*^ by George Behis (Boston, IT.S.), — "Sir Robert PhillimoTe, the present Queen's Advocate, and author of the most comprehensive and systematic * Commentaries on International Law' that England has produced." an exceptional case, becanse Phillimore's Comuieotaries will be of the greatest use to many non-professional readers who, as pubHc men and public writers, find it necessary to study iDterDational law. It is ID itself a well digested body of laws." —Lata Journal (.second notice). •'We have within a short period briefly noticed the previous volumes of the im- portanc work of which the fourth volume IS now before us. We have more than ooce recogoized the ability and profound research which the learned author has brought to bear upon the subject, but this last volume strikes us as perhaps the moHt able aud lucid, and, in addition to these merits, it deals with a division of inter- national jurisprudence which is of very - great interest, namely, private interna- tional law or comity. The issue of a second edition proves that it has attained a position of authority and is favourably received by international jurists. We have no grounds for impugning its accuracy, and as a compilation it must receive our acknowledgmeot that it is able and learned." — Lotb Times. ** The latest arrivals bring us Vol. 4 of this great work, it is the close of the second edition begun a few years ago. Sir Robert Phillimore has one great advantage over new commentators on iDternational Law, in that he is and has always been a work- ing publicist. Judge and parliamentarian, and not a mere student of the closet Itis his life-long ha^bit to look at things in a practical way in the concrete and to judge of propositions by their adaptation tried or probable to the working world of public transactions. The reputation and autho- rity of Dr. Phillimore on this side of the water are too well known aud established to require any general commendation of this work. It is enough to recognize the fact that private internapohal law is be- coming of mure and more importance with the vastly increased opportunities for pri^ vate dealings betivfeen citizens or inhabi- tants of different nationalities and to changings of domicil and habltaucy, aud to express gratitude that the learned, expe- rienced and thorough commentator has made the latest contribution towards peace and good understanding among civilized men."— Bo*/on (United States) Daily Ad- vertiser, Dec, S, 1874 Uecond notice'),. *' The authority of this work is admit- tedly great, and the learning and ability displayed in its preparation have been recognized by writers on public law both on the Continent of Europe and in the United States. With this necessarily im- perfect sketch we mast conclude our no- tice of the first volume of a work which forms an important contribution to the lite- ratqre of public law. The book is of great utility, and one which should find a place in the library of every civilian."— iaw Megasinej *' We cordially welcome a new edition of vol. 1. It is a work that ought to be studied by every educated man, and which is of constant use to the public writer and statesman. We wish, indeed, that our pub- lic writers would read it more abuudantly than they have done, as they would then avoid serious errors in discussing foreiKQ questions. Any general criticism of a book which has betn received as a standard Work would be superfluous; but we may remark that whilst Sir Kobert strictly ad- heres t'> the canons of legal authorship, and never gives a statement without an au- thority or offers a conclusion which is not maQifestlydeducibtefrom established facts or authoritative utterances, yet so lucid is his style, we had almost said so popular, so clear is the enunciation of principles, so graphic the historical portions, that the book may be read with pleasure as well as profit." — Late Jovmal. " It is the most complete repository of matters bearing upon international law that we have in the language. We need not repeat the commendations of the text itself as a treatise or series of treatises which this journal expressed upon the appearance of the two first volumes. The reputation of the Author is too well established and too widely known. We content ourselves wfth testifying to the fulness and thoronghness of the work as a compilation after an inspection of the three volumes (second edition)." — Boston (.United States^ Daily Advertiser. "Sir Robert Phillimore may well be Eroud of this work as a lasting record of is ability, learning and his industry. Having read the work carefully and critically, we are able to highly recom- mend it. Usually when such a work reaches a secona edition critical com- meodatioD is superfluous, but the present is -© o- 24 LAW WORKS PUBLISHED BY Clt&RK'S DIGEST OF THE HOUSE OF LORDS CASES. A DIGESTED INDEX to all the REPORTS in the HOUSE of LORDS, from the Commencement of the Series by Dow, in 1814, to the end of the £leveii Volumes of House of Lords Cases; with references to more recent decisions. By Charles Clare, Esq., Q.C., Reporter by Appointment to the House of Lords. 1 vol., royal 8vo. 31«. 6d. cloth. ** The decisions of the supreme tribu- nal of this country, however authorita- tive in themselves, were not, until of late years, at all familiar to the great body of the legal profession ; the early reports of them being in the' hands of but few persons. In that tribunal, more than in any other, questions ran be con- sidered, as they have been, upon purely legal principles, freed from the fetters and obstructions of mere precedent. The acknowledged eminence of the noble and learned persons by whom the decisions have been pronounced, gives them a value beyond their official autho- ritativenesB. It is hoped that this Di- gest will have the effect of making the profession at large familiarly acquainted with them,"— Fr^atoty Notice. NASMITH'S INSTITUTES. THE INSTITUTES of ENGLISH PUBLIC LAW, embracing an Outline of General Jurisprudence, the Development of the British Constitution. Public International Law; and the Public Mmiicipal Law of England. By Uavid Nasmiih, Esq., LL.B,, of the Middle Temple, Barrister at Law, Author of the Chronometrical Chart of the History of England, &c.. Joint Translator of Ortolan's H istory of Roman Law. Post 8 vo., 1 vol. 12«. cloth. " We believe the plan of the book Is the right one." — Law Magazine. THE INSTITUTES of ENGLISH PRIVATE LAW, embracing an Outline of the Substantive Branch of the Law of Persons and Things, adapted to the New Procedure. By David Nasmith, LL.B,, of the Middle Temple, Barrister at Law, Author of "Institutes of English Public Law,"&c-, &c. In 2 vols, or books, post 8vo. 2\e, cloth. " Mr. Nasmiih has evidently expended much labour and care in the compilation and arrangement ot the present work, and, so far as we have been able to test it, the bulkofhls TreatiHe,which is confined to a concise exposition of the existing law, appears to merit the praise of accu- racy and clearness.*'— Zaw Magazine. *'Mr. Na'>inith'8 'Institutes of Pri- vate Law • is a very careful and popular compilation."— JPaiiy News. " In these volumes, dedicated to the Lord Chancellor, Mr. Nasmith gives an elementary, though detailed, exposition of the substantive branch of English private law, the subject being divided into two books, which treat respectively of the law of persons and the law of things. Altogether the treatise is a capital one."— Ston i. 28 LAW WORKS PUBLISHED BY CHRISTIE'S CRABB'S CONVEYANCING.— Fiftb Edition, "by Shelford. CRABB'S COMPLETE SERIES of PRECEDENTS in CONVEYANCING and of COMMON and COMMERCIAL PORMS in Alphabetical Order, adapted to the Present State of the Law and the Practice of Conveyancing; with copious Prefaces, Obser- vations and Notes on the several Deeds. By J. T, CuRiSTiE, Esq., Barrister-at-Law. The Fifth Edition, with numerous Corrections and Additions, by Leonard Shelford, Esq., of the Middle Temple, Barrister-at-Law. Two vols. Royal 8vo. 3/. cloth. *»• This work, which embraces both the Principlesas well as tTte Practice of Conveyancing, contains likewise every description of Form wanted for Commercial Purposes. General Table op Heaps op Fbepaces and Forms., Abstracts. — Accounts. — Acknowledgments. — Acquittances. — Admittances. — Affida- TitB, Affirmations or Declarations. — Agreements: to relinquish Business: to Guarantee : for A Lease : berore Marriafte : (or a Partition : between Principal and Agent : for the Sale and Purchase of Estates : for Sale of Copyhold Estates : for Sale of Leaseholds ■ for Sale of an Advowson, — Annuity : secured on Copyholds. — Annuities : Assignments of. — Appointments: of Guardians. — Apportionment. — Apprenticeship : td the Sea Service : to an Attorney : Assignment of.^ — Arbi- tration: Award. — Assignments: Bonds: Leases: Patents: Pews: Policies of Insurance : Pi.everalonary Interests. — Attestations. — Attornments. — Auctions : Particulars of Sale. — Bargains and Sales: of Timber,— Bills of Sale of Goods. — Bonds: Administration: Receiver pending Suit : Post Obit: Stamps on.— Cer- tificates.— Composition: Conveyances in Trust for Creditors.— Conditions : of Sale. — Confirmations. — Consents. — Copartnership ; Dissolution of Copartner* ship. — Covenants : Stamps on : for Production of Title Deeds. — Declarations. — Deeds : I. Nature of Deeds in General : II. Requisites of a Deed : III. Formal parts of Deeds : IV. Where a Deed is necessary or otherwise : V. Construction of Deeds: VI. Avoiding of Deeds : VII. Proof of Deeds : Vill. Admis^tion of Parol Evidence as to Deeds: IX. Possession of Deeds : X. StampDuty on Deeds. — Defeasances. — Demises. — Deputation. — Disclaimers. — Disentailing Deeds. — Distress : Notices of- — Dower, — Enfranchisements. — Exchanges. — Feoffments: — Further Charges.- Gifts, — Grants.— Grants of Way or Rnad. — Indemnities. — Leases: I. Nature of Leases in General: II. Requisites to a Lease : III. Parts of a Lease: IV Incidents to a Lease : V. Stamps on Leases. — Letters of Credit. — Licences. — Mortgages: of Copyholds: of Leaseholds: Transfer of: Stamp Duty on. — Notes, Orders, Warrants, &c. — Notices: to Quit. — Partition. — Powers : of Attorney. — Presentation. — Purchase Deeds : Conveyance of Copy- holds : Assignments of Leaseholds : Stamps on. — Recitals.— Releases or Convey- ances; or Discharges.-^Renunciationsor Disclaimers.— Resignations. — Revoca- tions.— Separation. — Settlements: Stamp Duty on. — Shipping: Bills of Lading: BillAofSale: Bottomry and Respondentia Bonds : Charter Parties.— Surrenders. —Wills : 1. Definition of Will and Codicil : 2. To what Wills the Act 7 Will. 4 & 1 Vict. c. 26 does not apply : 3. What may be disposed of by Will : 4. Of the capacity of Persons to make Wills : 5. Who may or may not be Devisees : 6. Exe- cution of Wills ; 7. Publication of Wills: 8. Revocation of Wills : 9, Lapse of Devises and Bequests: 10. Provisions and Clauses in Wills: U. Constrnction of ■Wills. *' In carefaloesswehave inhim asecond ation of it to the notice of those for whose Crabb, in erudition Crabb's superior^ and service it has tieea so laborioosly com- the resQlt is a work of which the orifnnal piled." — Law Times. author would have been proud, could it " Mr. fehelford has proved himself in have appeared under his own auspices. It this taftk tu be not anwonhy of bis former is not a book to be quoted, nor indeed repntation. I'o those familiar with his could its merif 5 be exhibited by quotation. other works it will be a sufficient recom- It is esseutially a book of p-iictice. which meodation of this work that Mr. Shelford** can only be described in rnde ontliae iind name appears on the title-page; if there dismissedwith applaasejaod arecommeDd- be any who are not well acqnamted with Gliristie's Crabb's Conveyancing— conJtnuec;. them, we venture to recommend to such effected valuable improvements."— iaw the work before us. as the most generally Magazine ^nd Review. useful and coavenient collection of prece- *' it possesses one distinctive feature in dents in conveyancing, aud of commercial devoting more attention than usual in such furms for ordinary use, which are to be works to forms of a commercial nature. had in the Kuglish language." — Solicitors* On the whole ihe two volumes of CrabVs JoHTnai and Reporter. Precedents, as edited by Mr. Leonard "To this important part of his duty— the Shelford, will be found extremely useful remodelline and perfecting of the Forms in a solicitor's office, presenting a large — even with the examination which we amount of real property learning, with have already been able tn afford this work, very mimerous precetlents : indeed we know we are able to affirm, that the learned of no book so justly entitled to the ap- editor has been emineutly successful and pellation of * handy* as the fifth edition of Air. Crabb*s Precedents."— XavCAroniV/e. CUTIiER'S LAW OF NATURAI.IZATION. THE LAW of NATURALIZATION as Amended by the Act of 1870. By John Cutler, B.A., of Lincoln's Inn, Barrister at Law, Editor of " Powell's Law of Evidence,'* &c. l2nio. Ss:6d, cloth. " Professor Cutler's book is a useful able the reader fully to coilnprehend the summary of the law and of the changes present state of the law upon this most which have been made in it. The act is Important snhject."— Justice of the Peace. given in full whh a useful index." — Law "The author's position as Professor Magazine. of English Law and Jurisprudence is a "Mr. Cutler, in the work hefore us, guarantee ofhis legal competence, whilst lucidly explains the state of the Jaw pre- his literary abilities have enabled him vious to the recent statute, and shows to clothe his legal knowledge in lan- the alterations produced by it, so that guage which laymen can understand a careful perusal of his book will en- without being misled by it," — John Bull, COOTE'S ADItllRAIaTV PRACTICE.— Second Edition. The PRACTICE of the HIGH COURT of ADMI- RALTY of ENGLAND : also the Practice of the Judicial Committee of Her Majesty's Most Hon. Privy Council in Admiralty Appeals, with Forms and Bills of Costs, By Henry Charles Coote, F.S.A., one of the Examiners of the High Court of Admiralty, Author of "The Practice of the Court of Prohate," &c. Second Edition, almost entirely re-written ; and with a SUPPLEMENT conlaining the County Court Practice m Admiralty, the Act, Rules, Orders, &c. 8vo. 16s. cloth. •«* This worJc contains evert/ Common Form in use by the Practitioner in Admiral^, as well as every descriptum of BUI of Costs in that Court, a feature possessed hy no other work on ihe Practice in Admiralty, "Mr Coote beinff an Examioer of the treats. His treatise is, snbstactially con- O — 53 fi~ 30 LAW WORKS PUBLISHED BY OKTOIiAN'S ROMAN I^W, Translated by FRICHARD and NASMITH. The HISTORY of ROMAN LAW, from the Text of Ortolan's Histoire de la Legislation Romaine et Generalisation du Droit (edition of 1870). Translated, with the Author's permission, and Supplemented by a Clironometrical Chart of Roman History, By I. T. Pkichard, Esq., F.S.S., and David Nasmith, Esq , LL.D., Banisters at Law. 8vo. 28s. cloth. . '• We know of no work, which, in our to that great work, it is enough to say, opinion, exhibits so perfect a model of that English writers have been con- what a*ext-book ouglit to be. Of the tinually in the habit of doing piecemeal translation before us, it is enough to say, what Messrs, Prichard and Nasmith that it is a faithful representation of have done wholesale. Hitherto we have the original." — Law Magazine. had but gold dust from the mine, now "'fhistranslalion,fromitsgreatmerit, we are fortunate in obtaining a large deserves a warm reception from all who nugget. Mr. Nasmith is already known desire to be acquainted with the history as the designer of a chart of the history and elements of Roman law, or have its of England, which has been generally interests as a necessary part of a sound approved, and bids fairly foi extensive legal education at heart. With regard adoption." — Law Journal. ADAMS'S LAW OF TRADE-MARKS. A TREATISE on the LAW OF TRADE-MARKS; with the Trade-Marks Kegiilation Act, 1875, and the Lord Chan- cellor's Eules. By P. M. Adams, of the Middle Temple, Esq., Barrister at Law. 8vo. 7s. 6d cloth. " A comprehensive treatise on the sub- ' "'^ of trade-marks."-CTiam*»-* of Com- iect of the law of trade-marks. We can Z%c!^ .T\,^', ^ ,,,a i, • ,, . iecommend Mr. Adams' work to the „A J5fm"? ,?' °L fhf ^^h",- ''^'^. favourable attention of patentees, manu- 31'.'',,'','^ .°"i*' l' -n , ^Y"?,''T''J* facturers and others interested in the ^^^^^ "^'* '"'* "''' "^ valuabIe"-CMi/ CIjIFFORD & STEPHENS' REFEREES' PRACTICE, 1873. THE PRACTICE of tlie COURT of REFEREES on PRIVATE BILLS in PARLIAMENT; with Reports of Cases as to the Locus Standi of Petitioners decided during the Sessions 1867-72. By Frederick Clifford, of the Middle Temple, an4 Pembroke S. Stephens, of Lincoln's Inn, Esquires, Barristers at Law. 2 Vols. Royal 8vo. 31. 10s. cloth. Jnst published, royal 8to., Vol, 1. Part L, price 31«. 6i. In continuation of the above. CASES DECIDED DURING THE SESSIONS 1873, 1874, and 1876 by the COURT of REFEREES on PRIVATE BILLS in PARLIAMENT. By Frederick Clifford and A. G. RiCKARDS, Esqs., Barristers at Law. "These Reports are a continuance *'The book is really a very useful of the series ol ' Clijfoid and Stephens' one, and will doubtless commend itself Reports,' which began in 1867, and seem to Parliamentary practitioners."— Zaw to be marked by the same care and Timet. accuracy which have made these Re- "The Reports themselves are very ports a standard for reference and well done. To parliamentary practi- quotation by practitioners and the Court tioners the work cannot fail to be of itself."— mme». very great ■^&\ae."—Soltcitort' Journal. UNDBRHIIiIi'S IiAW OP TORTS. A SUMMARY OF THE LAW OF TORTS, OR WRONGS INDEPENDENT OF CONTRACT. By Arthur Underhill, BA., of Lincoln's Inn, Esq., Barrister at Law. Post 8vo. 65. cloth. * He has set forth the elements of the law with clearness and accuracy. 'J he little work of Mr. I'nderhill is inexpensive &nd may be relied on." — Law Times. *' The plan is a good one and has been honestly f^arried out. and a good index facilitates reference to the contents of the hook."— Just ice of the Peace. **Mr. UiiderhiU's ability in makin? a clear digest of the subject treated of in this volume is conspicuous. Aiaay ^rks would have to be consulted for the int'or- mation here concisely given, so that prac- titioners as well as students will find it useful."— iVeio J of the World. " His book is so clearly written that it is easily comprehensible. To the law student, for whom it is more particularly writien, it maybe recommended bnth for iis simplicity and accuracy."— iMo;'n!W5- Advurtiser. " Intended for the student who desires to have principles before enteriuj; into par- ticulars, and we know no book on the subi- ject so well adapted for the purpose."— Law Examination Jonrnal. " We strongly recommend the manual to students of both branches of the profes- sion."— Pre/jminary Eiaminaiion Journal. " A work which will, we think, be found instructive to the beginner, and a useful handybook for the jiraciitioner iu local courts." — Public Opinion. KEIiIiY'S CONVEYANCING DRAFTSIVCAN. THE DRAFTSMAN: containing a Collection of Concise Precedents and Forms in Conveyancing; with Introductory Observa- tions and Practical Notes. By Jamks H. Kelly. Post 8vo. 6s. clotlu " Mr. Kellj's object is to give a few pre- cedents of each of those instruments which are most commonly required in a solicitor's office, and for which iirpcedents are not always to be met with in the ordinary books on coDveyancing. The idea is a good one, and the precedents contained in the book are, generally speaking, of the character contemplated by the author's design "We have been favourably impressed with a Eernsal of several of the precedents in this 00k, and practiiion»TS who have already adopted forms of their own will probably find it advantatiaons to collate them with those given by W r. Kelly. Each set of pre- cedents is prefaced by a few terse and prac- tical observations," — Solicitors^ Journal. " Such statements of law an^i facts as are contaioeo in the work are accurate." — Law Journal, " It contains matter not fonnd in the more ambitious works on conveyancing, and we venture to think that the student will find it a useful supplement to his read- ing on the subject ot conveyancing."— Imw Examination Journal. I.ATHAM ON THE LAW^ OF W^INDOW LIGHTS. A TREATISE on the LAW of WINDOW LIGHTS. By Francis Law Latham, of the Inner Temple, Esq., Barrister at Law. Post 8vo. 10s. cloth. " This is not merely a valuable addition to the law library of tlie pntctitioner, it is a book that every law student will read with profit. It exhausts the subject of wbich it treats." — Law Times. " His arrangement is loijical and he discusses fully each point of his subject^ The work in cur opinion is both per- spicuous and able, and we cannot but cump{iraeut the autlior on it." — Law Journal. " A treatise on this subject was wanted, and Mr. Latham has succeeded inoieeting that -WAiiU^'—Athenaum. -0 0- 32 LAW WORKS PUBLISHED BY -O ROUSE'S CONVZSYANCER, ^TITH SX7PFIpace is of ct.urse saved, but besides this there is the still more important consideration that the draftsman is materially assisted to a bird's-eye view of his draft. Every- one who has done much conveyancing work knows how thoroughly important, nav, how essential to success, is the for* mation of a clear idea of the scope and framework of the instrument to be prd- duced. L'o clerks and other young hands-a course of conveyancing under Mr. Rouse's auspices is, we think, calculated to prove very instructive. To the solicitor, espe- cially the country practitiooer, who has often to set his clerkv to work upon drafts of no particular difficulty to the experi- enced practitioner, but upon which ihey the said clerks are not to be quite trusted alone, we think to snch gentlemen Mr. Rouse's collection of Precedents is calcu- lated to prove extremely serviceable. We repeat, in conclusion, that solicitors, espe- cially those practising in the conntry. Will find this a useful work,"— &/iciV(»r«* Jaumml, MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. S3 SAUNDERS' IJV^V OF NEGIiIGENCE. A TREATISE on the LAW applicable to NEGLI- GENCE. By Thomas W. Saunders, Esq., Barrister at Law, Recorder of Batlv 1 vol. post 8vo. 9s. cloth. "The book is admirable; while small in bnlk, it contains everything that is neces- sary, and its arrangement is such that one can readily refer to it. Amongst those who have done a good service Mr. Saunders will find a place "—Lata Magasine. ' We find very considepaole diligence displayed. The references to the cases are given much more fviHy, anil on a more rational system than is common with text- book writers, tie has a good index." — SoHeitors' Journal. " The recorder of Bath has rendered eood service to the profession, and to the more Incelligeut section of the general pubHc, by the production of the carefully prepared and practically useful volume now under notice. As a work of refer- ence, the book will be very welcome in the office of the solicitor or in the chamliers of t^e barrister." — Morning Advertiser. "Mr. T. W. Saunders is well known as a large contributor to legal literuture, and all his works are distinguished by pains-taking and accuracy, 'i his one is no exception, and the subject, which is of very extensive interest, will ensure tor it a cor- dial welcome from the professiuA." — Law Times. " As scarcely a day passes in which claims are not made, and actions brought, forcompensations for injuries from neglect of some kind, a short and clear treatise- like the present on the law relatinj; to the subject < nght to be welcomed -It is a mo- derate size volume, and makes references to all the authorities on the question easy.'* ^Standard. BIXON'S I.AW OF PARTNERSHIP. A TREATISE on the LAW OF PARTNERSHIP. By Joseph Dixon, of Lincoln's Inn, Esq., Barrister at Law, Editor of " Lush's Common Law Practice," 1 vol. 8vo. 22.s. cloth. " He has evidently bestowed upon this book the same conscientious labour aud painstaking industry for which we had to t:omp1iment him some months since when Teviewinghis edition of* Lush's Practice of - tfaeSupenorCourtsofl'aw.'and.asaresQlt, he has produced a clearly wriitenand well- arranged maisual upon one of the most im- portant branches oi our mercantile law." Law Journal. " Mr. Uixon has done his work well. The book is carefully and usefully pre- pared.*' — SolieitoTt' Journal, " weheartily recommend to prqctiiionSrs and students Air. Dixon's treatise as the best exposition of the law we have read* for the arrangement is not only artistic, but conciseness has been studied without sacrifice of clearness." — Law Times. "Mr. Liadley's view of the subject is that of a philosophical lawyer. Mv, X)ixoii's is purely and exclusivel;^ prac- tical from beginning to end. We imagine that very few questions are likely locoine before the practitioner which Mr. Dixon's book will not be found to solve. We have only to add, that the value of the book is very materially increased by an excel- lentmarginal summary and avery copious index." — Law Magasine ajtd Review, UICHAEI. & TVILL'S LAW OP GAS AND WATER SUPPLY. THE LAW OF GAS AND WATER SUPPLY, com- prising the Rights and Duties as well of Local Authorities as of Private Companies in regard thereto, and including the Legislation of the last Session of Parliament. By W. H. Michael and J. Shiress Will, of the Middle Temple, Esquires, Barristers-at- Law. Post 8vo. J 8s. cloth. "As to the steps to be taken to place matters on a proper basis, we refer_ those interested to the work oi Messrs, Michael and Will, where all the rights and liabilities of companies under the acts are fully set forth, and we feel thoroughly josiified m recommending the volume."— iaw limes. " We can thoroughly recommend the work to those who reauire guidance on the subject.''— 5&//W/W5 Jaunml. "We can safely say that this is an honest and a successful attempt to deal with the laws affecting gas and water supply.'.'— Law Journal, 34 LAW WORKS PUBLISHED BY DOVTEIiL'S INCOME TAX LAWS. THE INCOME TAX LAWS at present in force in the United Kingdonij with Practical Notes, Appendices and a copious Index. By Stephen Dowell, MA., of Lincoln's Inn, Assistant Solicitor of Inland Revenue. 8yo. 12s. &d. cloth. " To commissioners and all concerned *' We can honestly commend Mr. in the working of the Income Tax Mr. Dowell's work to our readers as being Dowell's book will he of great value." — well done in every respect." — Zow Law Journal. Magazine. "We cannot doubt that the woik will "Mr. Dowell's oflBcial position eml- prove of much service to persons en- nently fits him for the work he baa gaged in the administration of the In- undertaken, and his history of the come Tax laws." — Solicitors' Journal. Stamp Laws shows how carefully and "For practical purposes the coropita- conscientiously he performs what he tion must prove very useful."— iow undertakes."— J'MSifice of the Peace. Times. POTVEIiL'S LAW OF INLAND CARRIERS.— Second Edition. THE LAW OF INLAND CARRIERS, especially as regulated by the Railway and Canal Traffic Act, 1854. By Edmund Powell, Esq., of Lincoln College, Oxon, M.A., and of the Western Circuit, Barrister at Law. Author of " Principles and Practice of the Law of Evidence." Second Edition, almost re-written. 8vo. 14s. cloth. "The treatise before us states the law of riers."— Zaw Times, which it treats ably and clearly, and cou- " The subject of this treatise is not indeed tains a good ludex. '—Solicitors' Journal, a larfee one, but it has been got up by Mr. / Mr. Powell's writing is singularly pre- Powell with considerable care, andcontains ciseaDdcondensea,withoutbeingatBUary, ample notice of the most recent cases and as those who have read his admirable Book authorities.*'— Jwrij*. of Evidence will attest. It will be seen, " I'he two chapters on the Railway and from our outline of the contents, how ex- Canal Traffic Act, lS56,are quite nuvy.,and haustively the subject bas been treated, and the recent cases under the provisions of that It is entitled to be that which it aspires that statute are analyzed in lucid Ian- to become, the text book on the law of Car- guage."— Xaa; Magazine, TOMKINS AND JENCKEN'S MODERN ROMAN LA^V. COMPENDIUM of the MODERN ROMAN LAW. Founded upon the Treatises of Puchta, Von Vangerow, Arn^iB, Franz Mohler, and the Corpus Juris Civilis. By Frederick J, ToMKiNs, Esq., MA., D.C.L., Author of the " Institutes of Roman Law," Translator of " Gaius," &c., and Henry Diedrich Jencken, Esq., Barristers at Law, of Lincoln's Inn. 8vo. lAs, cloth. ©-t- © : o MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 35 DAVIS'S IiAVr OF REQISTRATION AND ELECTIONS. A MANUAL of the LAW of REGISTRATION and ELECTIONS : with a SUPPLEMENT comprising the Cases on Ap- peal, 1868-1869; the Rules and Cases relating to Election Petitions; the Poor Rate Assessment Act, 1869 ; and a complete Index to the whole Work. By James Edward Davis, Esq., Barrister at Law. 12mo. 15s. cloth. •»• The SUPPLEMENT may be had separately, price 3«. sewed. JUDICATURE ACTS. By LOCOCK WTEBB, Q.C. THE SUPREME COURT OF JUDICATURE ACTS, 1873 and 1875, with the Rules, Orders and Forms. Contents : — I. The Judicature Acts, 1873 and 1875, and Orders, &c.— II. Con- solidation of those Statutes and Rules and Practical Commentaries on the Rules of Law — the Jurisprudence and Judicature of the Supreme Court — the Practice of Appeals to the Court and Appeals to the House of Lords. A most copious Index. By LococK "Webb, Esq., one of her Majesty's Counsel. 8vo. 21s. cloth. (/re preparation.) ROGERS'S JUDICATURE ACTS, 1873 and 1875. The LAW and PRACTICE of the SUPREME COURT of JUDICATURE. By Arundel Rogers, Esq., of the Inner Temple, Barrister at Law, Author of " The Law of Mines, Minerals and Quarries." 1 vol., demy 8vo. 21s. cloth. Just published, price 3». sewed, Forming a SUPPLEMENT to tlie aiove, ROGERS'S DECISIONS UNDER THE JUDICATURE ACTS, 1873, 1875. DECISIONS under the JUDICATURE ACTS, 1873, 1875 ; together with Additional Orders and Rules : being a Sup- plement to the Law and Practice of the Supreme Court of Judica- ture. By Arundel Rogers, Esq , of the Inner Temple, Barrister at Law. The original Work, including the Supplement, may be had price 21*. cloth. 36 LAW WORKS PUBLISHED BY ,__ ____^____^^^_____^_-^__— — _— .^_^— BARRV'S PRACTICB OF CONVEYANCING. A TREATISE on the PRACTICE of CONVEY- ANCING. By W. Whittakek Barry, Esq., of Lincoln's Inn, Bar- rister-at-Law, late holder of the Studentship of the Inns of Court, and Author of " The Statutory J urisdiction of the Court of Chancery." 8vo. ] 8s. cloth. ''This treatise supplies a want which his criticism will meet with general ap* has long been felt. Mr. Barry's work is provat." — Imw Mttgazine. essentially what it professes to be, a " Readers who rccai tlie instruction treatise on the practice of conveyancing, they gathered from this treatise when in which tiie theoretical rules of real published week by week in the pages of property law are referred to only for the the * Law Times' will be pleased to learn puipose of elucidating the practice. The that it has been re-produced in a hand- treatise is the production of a person of some volume, which will be a welcome great merit and still greater promise." addition to the law library. Theinforma- — Solicitora* Journal. tion that the treatise so much admired We feel bound to strongly recom- may now be had in the more convenient mend it to the practitioner as well as tlie form of a book will auHice of itself to student. The author has proved himself secure a large and eager demand for it." to be a master of the subject, for he not — Iiaw Times. only gives a most valuable supply of prac- "The work is clearly and agreeably tical sugsestions, but criticises them with written, and ably elucidates the subject much ability, and we have no doubt that in hand." — Jujtice of the Peace. BARRY'S FORMS IN CONVEYANCING. FOEMS and PRECEDENTS in CONVEYANCING ; with Introduction and Practical Notes. By W. Whittaker Barry, of Lincoln's Inn, Barrister-at-Law, Author of a " Treatise on the Practice of Conveyancing." 8vo. 21«. cloth. HERTSIiET'S TREATISE. HERTSLET'S TREATIES of Commerce, Navigation, Slave Trade, Post Office Communications, Copyright, &c , at present subsisting between Great Britain and Foreign Powers Compiled from Authentic Documents by Edward Hertslet, Esq., C.B., Librarian and Keeper of the Papers of the Foreign Office. 12 vols. 8vo. HI. 5s. *,» Fol. 1, price 12s.; Fol. 2, price 12s.i Vol. 3, price I8s. ; Vol. 4, price 18s. ; Vol. 5, price 20s.; Vol. 6, price 25s.; Vol.", price SOs.; Vol. 8, price 30s.; Vol. 9, price SOs.; Vol. 10, price 30s.; Vol.11, price 30s.; Vol. 12, price 40s., may be had separately to complete sets'. Vol. 1 2 includes an Index of Subjects to the Twelve published Volumes, which Index is also sold separately, price 10s. cloth. HERTSIiET'S TREATIES ON TRADE AND TARIFFS. TREATIES AND TARIFFS regulating the Trade between Great Britain and Foreign Nations, and extracts of the Treaties between Foreign Powers, containing "Most Favoured Nation" Clauses applicable to Great Britain in force on the 1st January, 1875. By Edward HertslSt, Esq., C.B., Librarian and Keeper of the Papers, Foreign Office. Part I. (Austria). . Koyal 8vo. 7s. 6rf. cloth. Part II. (Turkey). 15s. cloth. -© HtGaiNS'S DIGEST OP PATENT CASES. A DIGEST OF THE REPORTED CASES relating to the Law and Practice of LETTERS PATENT for INVEN- TIONS, decided from the passing of the Statute of Monopolies to the present time. By Clement Higgins, M.A., F.C.S., of the Inner Temple, Barrister at Law. 8vo, 21s. cloth. *' Mr. Higgins*s work will be useftil as a work of reference. Upwards of 7()0 cases are digested : and, besides a table of contenU, there is a ftill index to the subject matter; and that index, which greaily enhances the value of the hook, must have cost the author much time, labour and thought." — Law Journal. " 'This is essentially,* says Mr. Hig- gins in his preface, 'a book of reference.* It remains to be added whether the compilation is reliable and exhaustive. It is only fair to say that we think it is ; and we will add, that the arrangement of subject matter (chronological under each heading, the date, and double or even treble references being appended to every decision), and the neat and care- fully executed index (which is decidedly above the average) are such as no reader of ' essentially a book of reference * could quarrel wUh."— Solicitors* Journal, *' Mr. Higgins has, with wonderful and accurate research, produced a work which is much needed, bince we have no collection of patent cases which does not terminate years ago. The work is well arranged, and gives brief, though com- prehensive, statements of the various rases decided." — Sdentifie and Literary Sevieip. "The very elaborate Pigest just com- pleted by Mr. Higgins is worthy of being recognized by the profession as a tho- roughly useful book of reference upon the subject. Mr. Higgins's object hns been to supply a reliable and exhaustive summary of the reported patent cases decided in English courts of law ^nd equity, and this object he appears to have attained." — Joining Journal. *• We consider that Mr. Higgins, in the production of this work, has met a long felt demand. Not merely the legal profession and patent agents, but pa- tentees, actual or intending inventors, manufaciurers and their scientific ad- visers, will find the Digest an invaluable book of reference." — Chemical Neusa. " The arrangement and condensation, of the main principles and facts of the cases here digested render the work in- valuable in the way of reference."— Stcmdard, " The work constitutes a step in the right direction, and is likely to prove of much service as a guide, a by no means immaterial point in its favour being that it includes a number of comparatively recent cases." — Engineer. *'In fine, we must pronounce the book as invaluable to all whom it may concern." — Qfiar^ly Journal of Science. " On the whole, Mr. Higgin's work has been well accomplished. It has ably fulfilled its object, by supplying a reliable and authentic summary of the reported Patent Law Cases decided in English Courts of Law and Equity."— Irish Imw Times, SMITH'S PRACTICE OF CONVEYANCING. An ELEMENTARY VIEW of the PRACTICE of CON- VEYANCING in SOLICITORS' OFFICES, with an Outline of the Proceedings under the Transfer of Land and Declaration of Title^Acts, 1862, for the use of Articled Clerks, By Edmund Smith, B.A., late of Pembroke Coll. Cambridge, Attorney and Solicitor. Post 8vo. 6s. cloth. ©- 38 LAW WORKS PUBLISHED BY INGRAM'S LAVr OF COMPENSATION.— Second Edition. COMPENSATION TO LAND AND HOUSE OWNERS : being a Treatise on the Law of the Compensation for In- terests in Lands, &e. payable by Railway and other Public Companies; with an Appendix of Forms arid Statutes. By Thomas Dunbar Ingram, of Lincoln's Inn, Esq., Barrister at Law, now Professor of Jurisprudence and Indian Law in the Presidency College, Calcutta; Second Edition. By J . J. Elmes, of the Inner Temple, Esq., Barrister- at-Law. Post 8yo. 1 2». cloth. '* Whetlier for companies taking land or conclusive manner that Mr, Ingram has ' holding it, Mr. Ingram's volume will be a rightly measured the requiremelits of the welcome guide. With this in his hand the profession when he designed the monograph legal adviser of a company, or of an owner before us. The appendix contains no less and occupier whose property is taken, and than sixty forms rrquiredinthepraeticeof who demands compensation for it, cannot this branch of the law and the statutes and fail to perform his duty rightly."— /^aof partsofstatutesinwhlchitisembodied. The Times,^ index is very ample. Thus it will be seen ** This work appears to be carefully pre- to be a book very valuable to all solicitors pared as regards its matter. This edition who may be concerned for railways or for is a third larger than the first; it contains the persons whose properties are affected twice as many cases, and an enlarged by them." — Ltna Timet, lecond notice. iiidex. It was much called for and doubt- " His explanatioDS are clearand accuratCi . less will be found very u&eful by the prac- and he constantly endeavours not only to titioner," — Lavt Magazine. state ihe effect of the law which he is - *' The appearance upon the title page of enunciating, but also to show the principle the words Second Edition attests in the most upon which it rests," — ^hensum. SCRIVEN ON COPVHOIiDS.— Fifth Edition Tiy Stalman. A TREATISE ON COPYHOLD, CUSTOMARY FREEHOLD, and ANCIENT DEMESNE TENURE, with the Jurisdiction of Courts Baron and Courts Leet. By John Scriven, Serjeant at Law. Tlie Fifth Edition, containing references to Cases and Acts of Parliament to the present time. By Henry Stalman, Esq,, of the InnerTemple, Barrister-at-Law. Abridged in 1 vol. roval 8vo. 30s. cloth. TUDOR'S CHARITABIiE TRUSTS.— Second Edition. THE LAW of CHARITABLE TRUSTS; with the Statutes, including those to 1869, the Orders, Regulations and Instruc- tions issued pursuant thereto, and a Selection of Schemes, with Notes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister-at- LaW, Author of ' Leading Cases in Equity.' Second Edition, contain- ing all the recent Statutes and Decisions. Post 8vo. 18s, cloth. . '* No living writer is more capable than Themain featureof thework isthemanner Mr, Tudor or producing such a work : his' in which Mr. I'udor has dealt with all the Leading Cases in Equity, and aho on the recent statutes relatin^g to this subject." — L'jw of Heal Property, have deservedly Solicitori^ Journal. earned for -him the highest reputation as a " Mr. Tudor's excellent little book on learned, careful and judicious tsxt-writer. Charitable Trusts "— Xaw Timet, ©- o- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.G. S9 GLEN'S PUBLIC HEALTH AND LOCAL GOVERNMENT Eighth Edition. The LAW relating to PUBLIC HEALTH and LOCAL GOVERNMENT : including the Law relating to the Eemoval of Nuisances injurious to Health, the Prevention of Diseases, and Sewer Authorities. "With Statutes and Cases. By "W. Cunning- ham Glen and Alexander Glen, B.A., LL.B., Barristers at Law. Eighth Edition. Post 8vo. 30s. cloth. " The Fubliu Health Act, 1875, ren- authorities, and other acts of analogous dered the production of a new edition of character, including the recent Act for this standard work imperative, and it the Improvement of Artisans and forms an important feature, it being Labourers' Dwellings, The notes to the given in extenso with appropriate notes sections show that great Ciire and in- and decisions of the courts upon the re- dustry have been bestowed upon Iheni, lative sectious or the repealed acts in- all the recent cases being annotated, serted at the ends of the sections. The Messrs. Glen have made this edition remainder of the work comprises acts thoroughly worthy of the reputation expressly referred to by the Public long since acquired by the senior editor." Health Act as giving powers to local From the " Lais Tirne^" March 18, 187 ti. GLEN'S LOCAL BOARD ELECTION MANUAL. The CONSTITUTION of LOCAL GOVERNMENT DISTRICTS and ELECTION of LOCAL BOARDS under the Public Health Act, 1875 (38 & 39 Vict. c. 55). By Alexander Glen, M.A., LL.B., Cantab, of the Middle Temple, Barrister at Law. Post 8vo. 3s. 6d. cloth. SHELFORD'S SUCCESSION, PROBATE and LEGACY DUTIES.— Second Edition. THE LAW relating to the PROBATE, LEGACY and SUCCESSION DUTIES in ENGLAND, IRELAND and SCOT- LAND, including all the Statutes and the Decisions on those Sub- jects: with Forms and Official Regulations. By Leonard Shelford, Esq., of the Middle Temple, Barrister at Law. The Second Edition, with many Alterations and Additions. 12mo. 16.?. tloth. " The treatise before ns, one of the most been already tested by most of them."— nseful aod popolar of his productions, Laie Times, .... beine now the text book on the subject, " Mr. shelford's book appears to as to nothing remains but to make known its ap- be the best and most complete work on this pearance to our readers, lu merits have extremely intricate subject. — iaa Maga- zine, DAVIS'S CRIMINAL LAVT CONSOLIDATION ACTS. THE CRIMINAL LAW CONSOLIDATION ACTS, 1861; with an Introduction and practical Notes, illustrated by a copious reference to Cases decided by the Court of Criminal Appeal. Together with alphabetical Tables of Offences, as well those punish- able upon Summary Conviction as upon Indictment, and including the Offences under the New Bankruptcy Act, so arranged as to present at one view the particular Offence, the Old or New Statute upon which it is founded, and the Limits of Punishment; and a full Index. By James Edward Davis, Esq., Barrister-at-Law. 12ino. 10». cloth. ~~~ 02 -O 40 LAW WORKS PUBLISHED BY -@ SEABORNE'S LAW OF VENDORS & PURCHASERS. A CONCISE MANUAL of the LAW of VENDORS AND PURCHASERS OP REAL PROPERTY ; with a Sup- plement, including the Vendor and Piu-chaser Act, 1874, with Notes. By Heney Seaborne. Post 8vo. . 9«. cloth. *** This work is designed to furnish Practitioners with on easy meant of reference to the Statutory Enactments and Judicial Decisions regviating the Transfer of Real Property f and also to bring these authorities in a compendious shape under the attention of students. ** The book before us contains a good the moat important branches of the deal, e&peciaJly of practical information law. The student will find this book a as to the course of conveyancing matters useful introduction to a dry and. difficult in solicitors' othces, which may be use- subject." — Lmv Examination Journal. ful to students." — Solicitor^ Journal. *• Intended to furnish a ready means " We will do Mr. Seaborne the Justice of access to the enactments and deci- to say that we believe his work will be aions governing that branch of the law." of some use to articled and other clerks — The Times. in solicitors* offices, who have not the *' The book wUl be found of use to the opportunity or inclination to refer to the legal practitioner, inasmuch as it will, standard works from which his is com- so far as regards established points of piled." — Law Journal. ' law, be a handier work of reference than ** The value of Mr. Seabome's book the longer treatises we have named."-^ consists in its being the most concise Athenceum, summary ever yet published of one of TOMKINS' INSTITUTES OF ROMAN LAW. THE INSTITUTES of ROMAN LAW. Part I., con- taining the Sources of the Roman Law and its External History till the Decline of the Eastern and Western Empires. By Frederick ToMKiNS, M .A., D.C.L., Barrister at Law, of Lincoln's Inn. Royal 8vo. 12s. cloth. (To be completed in Three Parts.) DREW^RV'S EQUITV PLEADER. A CONCISE TREATISE on the Principles of EQUITY PLEADING, with Precedents. By C. Stewart Drewry, Esq., of the Inner Temple, Barrister at Law. 12mo., 6s. boards, BAYLIS'S LAW OF DOMESTIC SERVANTS, by Monckton. Fonrth Edition. THE RIGHTS. DUTIES AND RELATIONS OF DOMESTIC SERVANTS AND THEIR M.\STERS AND MISTRESSES. With a short Account of Servants' Institutions, &c., and their Advantages. By T. Henry Baylis, M.A., Barrister at Law of the Inner Temple. Fourth Edition, with Considerable Addi- tions, by Edward P.Mokcktom, Esq., B.A., Barrister at Law of the Inner Temple. Fgolspap 8vo. 2i. cloth, O- MESSRS. BUTTERWORTHj 7 FLEET STREET, E.G. 41 WOOI.RVCH ON S£lVi;RS.-Third Edition. A TREATISE on the LAW OF SEWERS, including the Drainage Acts. By Humphry W. Woolrych, Serjeant at Law. Third Edition, with considerable Additions and Alterations. 8vo. 12s. cloth. ** Two editions of it hare been speedily been added to the literature of the profes- exhausted, and a third called for. The sion. It is a work of do slight labour to author is aa accepted authority on all sub- dieest and arrange this mass of legislation iects of this class.**— Xaw limex. —this task, however* Mr. SerjeantWool- ** This is a third and greatly enlarged rych has undertaken, and an examination edition of a book whicJi has already oh- of his book will* we think, convio'ce the tained an established reputation as the most most exacting that he has tully succepdt>d. complete discussion of the subject adapted > o one should attempt to meddle with the to moderutimes. Since the treatise of Mr. Law of Sewers without its help."— ^/i^ Serjeant Callis in the early part of the ITih citors* JowmaL QeDtuTy.no workfilHag thesame place has GAIUS' ROMAN IiAW.— By Tomkins and Lemon. ^Dedicated by permission to Lord Chancellor Hatherley.) THE COMMENTARIES of GAIUS on the ROMAN LAW: vith an English Translation and Annotations. ByFREDEKicK' J. Tonkins, Esq., M.A., p.C.L., and William George Lemon, Esq., JiL.B., Bnrristers-at-Law, of Lincoln's Inn. 8vo. 27s, extra cloth. " We feel bound to speak Id the highest the thanks of those vho take an interest termsof the manner in which Mr. Tomkins iu legal literature."— "So/lclVttrj' Journal. and Mr. Lemon have executed their task, " The translation is carefully, executed "We unhesitatingly recommend its careful and the annotations show extensive know- perusal to all students of Roman Law," — ledge of the Roman Law," — Athenigum. Law Magazine, - " One of the most valuable contributions "The authors have done a good service from an English source to our legal to the study of Kiiman Law, and deserve literature which the last half-century has witnessed." — Edinhtrglt Evening Courant, KERR'S ACTION AT IiAW.— Third Bdition. An ACTION at LAW: being an outline of the JURIS- DICTION of the SUPERIOR COURTS of COMMON LAW, with an Elementary View of the Proceedings in Actions therein. By Robert Malcolm Kerr, LL.D,, Barrister at Law ; now Judge of the SherifTs Court of the City of London. The Third Edition, 12mo. 9f, cloth. PARKINSON'S COMMON LAW CHAMBER PRACTICE. A HANDY BOOK for the COMMON LAW JUDGES- CHAMBERS. By Geo, H, Parkinson, Chamber Clerk to the Hon. Mr. Justice Byles, 12mo. 7«. cloth. © — -a 9 42 LAW WORKS PUBLISHED BY FIELD'S REGUI.ATIONS OF THE BENGAI. CODE. THE REGULATIONS OF THE BENGAL CODE, Edited, with Chronological Tables of Repeal and Amendment, and an Introduction, By C. D. Field, of the Inner Temple, Ban-ister at Law, and of H.M.'s Bengal Civil Service. 1 vol. Royal 8vo. 42s. ctoth. FIELD ON EVIDENCE IN BRITISH INDIA.— Second Edition. THE LAW OF EVIDENCE AS ADMINISTERED IN BRITISH INDIA. By C. D. Field, LL.D., of the Inner Temple, Barrister at Law, and of H. M.'s'Bengal Civil Service. Second Edition, containing the New Code of Evidence passed by the Legislative Council of India. 8vo. 28s. cloth. FIELD'S TABLE OF, and INDEX TO, INDIAN STATUTES. CHRONOLOGICAL TABLE OF, and INDEX TO, THE INDIAN STATUTE BOOK from the Year 1834; with a General Introduction to the Statutfe Law of India. With Supplement continuing the Work to August, 1872. By C. D. Field.M.A., LL.D., of the Inner Temple, Barrister at Law, and of H.M.'s Bengal Civil Service. Imperial 4to. 42i. cloth. BRANDON'S IsAW OF FOREIGN ATTACHMENT. A TREATISE upon the CUSTOMARY LAW of FOREIGN ATTACHMENT, and the PRACTICE of the MAYOR'S COURT of the CITY OF LONDON therein. With Forms of Procedure, By Woodthorpe Brandon, Esq., of the Middle Temple, Barrister at Law. Svo. 14s. cloth. MOSELEY ON CONTRABAND OF VTAR. WHAT IS CONTRABAND OF WAR AND WHAT IS NOT. A Treatise comprising all the American and English Authorities on the Subject. By Joseph Moseley, Esq., B.C.L., Barrister at Law. Post Svo. 5s. cloth. SMITH'S BAR EDUCATION. A HISTORY of EDUCATION for the ENGLISH BAR, with SUGGESTIONS as to SUBJECTS and METHODS of STUDY. By Philip Anstie Smith, Esq., M.A., LL.B., Bar-, rister at Law. Svo. 9s. cloth. MESSRS. BUTTER WORTH, 7 FLEET STREET, E.C. 43 TROWER'S CHURCH BUII.DING IiAVTS, Continued to 1874> THE LAW of the BUILDING of CHURCHES, PARSONAGES, and SCHOOLS, and of the Division of Parishes and Places. By Charles Fhancis Trower, M.A.,. of the Inner Temple, Esq., Barrister at Law, late Fellow of Exeter Cpllege, Oxford, and late Secretary of Presentations to Lord Chancellor Westbury, Post 8vo. 9s. cloth. The Supplement may le had separately, price Is., sewed, ** A good book on this subject is calcu- men are concerued witlx glebes, endow- lated to be of considerable service boih to ments. district chapelries. parishes, eccle- lawyers, clerics and laymen; and on tbe siastical commissions and such like matters, whole, after taking a survey of the work about which the public and notably the before us, we may pronounce it a useful clerical public seem to know but little, but work. It contains a great mass of^for- which it is needless to say are matters of mation of essential import to those who much importance." — Holicitors' Journal, as parishioners, legal advisers or clergy- HEAIiES'S HISTORY AND I.AVr OF PEWS. THE HISTORY and the LAW of CHURCH SEATS or PEWS. By Alfred Heales, F.S.A., Proctor in Doctors' Commons. 2 vols. 8vo. 16s. cloth, " Altogether we can commend Mr. dence of the author's industry, talent Heales's book as a well conceited and leaiaing."—ZatD /ournej. and well executed work, which is evi- BRABROOK'S WORK ON CO-OPERATION. THE LAW and PRACTICE of CO-OPERATIVE or INDUSTRIAL and PROVIDENT SOCIETIES; including^ the Winding-up Clayses, to which are added the Law of France on the same subject, and remarks on Trades Unions. By Edward W. Brabrook, F.S.A., of Lincoln's Inn, Esq., Barrister at Law, As sistant-Registrar of Friendly Societies in England. 6s. cloth. tUSHINGTON'S NAVAI. PRIZE IjAW. A MANUAL of NAVAL PRIZE LAW. By Godfrey LusHiNGTO.N, of the Inner Temple, Esq., Barrister at Law. Royal 8vo. 10s. 6d. cloth. WIIiIiS ON EVIDENCE.— Fonrth Edition. AN ESSAY on the PRINCIPLES of CIRCUMSTAN- TIAL EVIDENCE. Illustrated by numerous Cases. By the late William Wills, Esq. Fourth Edition. Edited by his Son, Alfred Wills, Esq., Barrister at Law. 8vo. 10s. cloth. ©- -o 44 LAW WORKS PUBLISHED BY VriGRAM ON vriliLS.— Fourth Edition. An EXAMINATION of the RULES of LAW respecting the Admission of EXTRINSIC EVIDENCE in Aid of the INTER- PRETATION of WILLS. By the Right Hon. Sir James Wigr am, Knt, Tlie Fourth Edition pi*ej)afed for the press, with the sanction 6f the learned Author, fay W.Knox Wigr am, M.A., of Lincoln's Inn, Esq., Barrister at Law. Svo. lis. cloth. *' [n the celebrated treatise of Sir James AVigram, the rules of law are stated, dis- cussed and exptaioed in a nianDer which has excited the admiration of every jadge who has had to consult it." — Lord Kinfis- dojon, in a Privy Council Judgmenif Julp Bth, 1858. ** There jcan be qo doubt that the notes of Mr. Knox WiKrani have enhanced the value of the work, as affording a ready reference to recent cases ou the subiects embraced oi arisinpr out of Sir James Wigram's propositions, and which fre- quently pive additional support, and in some instances an extension to the oriKinal text.'*— Law C/ironicle* ** Understood as general gnides, the propositions established by Sir ' James Wigram's hook are of the highest value. Eat whatever view maybe entertained, the book is one which will always be highly prized,' and is now presented in a very satisfactory' shape, tnanks to the industry and iutelligenfre displayed in the notes by the present editor.** — Solicitors* Journal and Reporter, COOMBS' SOLICITORS' BOOKKBEFING. A MANUAL of SOLICITORS' BOOKKEEPING: comprising practical exeijiplifications of a concise and simple plan of Double Entry, witli Forms of Account and other books relating to' Bills of Costs, Casb, &c., showing their operation, giving directions for keeping, posting and balancing them, and instructions for drawing costs. Adapted for a large or small, sole or partnership business. By W, B, Coombs, Law Accountant and Costs Draftsman. 1 vol, Svo. 10s. 6d. cloth. *»* 77ie various Account Books detcHbed in the above work, the Forms of which are Copyrightj may he had from the PiUtHshers, at the prices stated in the work at page 274. " The author of the above, relying on the well-known fact that solicitors do not like intricate bookkeeping, has pre- sented to that branch of the profession a work in which the really superfluous has been omitted, and that only which is necessary and useful ^in the ordinary routine in an attorney's oiiiae has been retained. He has performed his task in a masterly manner, and in doing so has given the why and the wherefore of the whole system of Solicitors' Bookkeeping. The volume is the most comprehensive we remember to have seen on the sub- ject, and from the clear and intelligible manner in which the whole has been worked out it will render it unexcep- tionable in the hands of the student and the pTactitioner." — Law Magazine. " Throughout the pro formd account books most of the different matters of business which usually arise in a solici- tor's office have been passed from their commencement to their ultimate con- clusion. The bill book contains pre- cedents of bills of costs illustrating the correspondence between that and the disbursement book, and so with the cash book, ledger, and other books ; every item has its reference and any intricate points have been explained, which are merits' which no other work on the subject possesses; indeed so clear do the in- structions appear that a tyro of average skill and abilities with application could under ordinary circumstances open and keep the accounts of a business; and so far as we can judge the author has suc- ceeded In his endeavour to divest solici- tors' bookkeeping of complexity, and to be concise and simple without being inefficient. We cannot dismiss this volume without briefly commenting upon the excellent style in which it is submitted to the profession.**— Zow Jommai. O- HUNT'S BOUNDARIBSj FENCES AND FORESHORES. Second Edition. A TREATISE on the LAW relating to BOUN- DARIES and FENCES, and to the Rights of Property on the Sea Shore and in the Bed of Public Rivers and other Waters. Second Edition. By Arthur Joseph Hunt, of the Inner Temple, Esq., Barrister at Law. Second Edition. 12mo. 12s. cloth. "There are few more fertile sources of litigation than those dealt -with in Mr. Hunt's valuahle hook. It is suffi- cient here to say that the volume ought to have a larger circulation than ordi- narily belongs to law books, that it ought to be found in ev_ry country gentleman's library, that the cases are brought down to the latest date, and that it is care- tul\y prepared, clearly written, and well edited.'* — Law Magazme. '* it speaks well for this hook, that it has so soon passed intoasecondedition. That its utility has been appreciated is shown by its success. Mr. Hunt has availed himself of the opportunity of a second edition to note up all the cases to this time, and to extend considerably some of the chapters, especially that which treats of rights of property on the seashore and the subjects of sea walls and commissions of sewers."— Xaw Times, " Mr. Hunt chose a good subject for a separate treatise on Boundaries and Fences and Rights to the Seashore, and we are not surprised to iind that a second edition of his book has been called for. The present edition contains much new matter. The chapter espe- cially which treats on rights of property on the seashore, which has been greatly extended. Additions have been also made to the chapters relating to the fencing of the property of mine owners and railway companies. All the cases which have been decided since the work first appeared haye been introduced in their proper places. Thus it will be seen this new edition has a considerably enhanced value," — Solicitors' Journal. GRANT'S IiAW OF CORPORATIONS IN GENERAIf. A PRACTICAL TREATISE on the LAW of COR- PORATIONS in GENERAL, as well Aggregate as Sole; including Municipal Corporations, Railway, Banking, Canal and other Joint- Stock and Trading Bodies, Dean and Chapters, Universities, Colleges, Scliools, Hospitals, with quasi Corporations aggregate, as Guardians of the Poor, Churchwardens, Churchwardens and Overseers, &c., and also Corporations sole, as Bishops, Deans, Canons, Archdeacons, Parsons, &c. By James Grant, Esq., of the Middle Temple, Bar- rister at Law. Royal 8vo. 26s. boards. c 5 46 LAW WORKS PUBLISHED BY BUND'S ZiAW OF SALMON FISHBRIES. THE LAW relating to the SALMON FISHERIES of ENGLAND and WALES, as amended by " The Salmon Fishery Act, 1873;" with the Statutes and Cases. By J. W. Willis Bund, MA., LL.B., of Lincoln's Inn, Barrister at Law, Vice-Chairman Severn Fishery Board. Post 8vo. 15s. cloth. From the Thirteenth Annual Report of Inspector Biickland on Salmon F»jfer|M. 1874., *' I would wish in ihis plnce to express my approval of ' -Bund'n Law of Salmon Fisheries in England and Wales, with Statutes and Cases,' Thiit work will afford great a-^sistance to those engaged ia administering the law, while it affords valuable information on the theory and practice of Salmon legislation in general." From the Thirteenth Annual Report of Inspector Walpole on Salmon FltheHes, 1874., 'Mr. NViUis Buad, the Draftsman of the new Act.hos nuLilished an lii.portant treatise oil the whole of the Salmon Fishery Acts, which has already been accepted as a com- plete exposition of those Statutes." Doubtless all the law will be found between his covers, and we have not been able to detect any erroneous statements, vye can recommend the book as a disqui* sition.— it is conscientiously execuied.*'— Ialw Times, •'With Mr. Bund's work at his elbow, the inquirer will find it tolerably easy work, for Mr. Bnnd has with greatskilland labour done all the most troublesome work for him, and each point of law is marked out so that there can be no difficulty in under- standing it, for not only are the points un- ravelled and discussed, but the cases which have come before the superior courts upon the various points are distinctly set forth. and the decision upon each made plain. Mr. Bund has done the work excellently well, and nothing further in this way can be desired."— TAe Field. " We have always found his opinion sound, and bis explanations clear and lucid. This voluine must of necessity be- come a handbook to salmon fishers in gene- ral, and especially to hoards of conserva- tors, who'will thereby be much assisted in the formation of the new boards of conser- vators, under the Act of 1873 ; also the operation of the Acts of IStil and 1865, as amended by the Act of liSJ3"~La7td and Wtfter. ROUSE'S COPYHOLD ENFRANCHISEMBNT MANUAL.— Third Bdition. The COPYHOLD ENFRANCHISEMENT MANUAL; enlarged, and treating the subject in the Legal, Practical and Mathe- matical Points of View; giving numerous Forms, Rules, Tables and Instructions for Calculating the Values of the Lord's Rights; Sugges- tions to Lords* Stewards, and Copyholders, protective of their several Interests, and to Valuers in performance of their Duties; and inclu- ding the Act of 1858, and Proceedings in Enfranchisement under it. By RoLLA Rouse, Esq., of the Middle Temple, Barrister at Law, Third Edition, much enlarged. 12n)0. \0s. 6d, cloth. * This new edition follows the plan of fession, we feel sure the legal world will ' greet with pleasure a new and impToved edition of his copyhold manual. The third edition of that work is before us. It is a work of great practical value, suitable to lawyers and laymen. We can freely and heartily recommend this volume to the practitioner, the steward and the copyholder." — Law Magazine. " Now, however^ that copyhold tenures are being frequently converted into free- holds, Mr. Rouse's treatise will doubtless be i)roductlve of very extensive benefit ; for it seems to us to have been very care- fully prepared,, exceedingly well com- posed and written, and to indicate much experience in copyhold law on the part of the sathor,"~-rSoUcitors* Journal, its predecessor, adopting a fivefold divi- ition: — 1. The Law. 2. The Practice, with Practical Suggestions to Lords, Stewards and Copyholders. 3. The Ma-' thematical consideration of the Subject In all its Details, with Rules, Tables and Examples, 4. Forms. 5. The Statutes, with Notes. Of these, we can only re- peat what we have said before, that they exhaust the subject ; they give to the practitioner all the materials required by jiim to conduct the enfranchisement of a copyhold, whether voluntary or com- puUoryi." — Lata Times. *' When we consider what favor Mr. Rouse's Practical Man and Practical Conveyancer have found with the pro- O- ©" MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 47 COLIiIER'S ImA'W of CONTRIBUTORIES. A TREATISE ON THE LAW OF CONTRIBU- TORIES in the Winding-up of Joint Stock Companies. By Robert Collier, of the Inner Temple, Esq., Barrister at Law, Post 8vo. 9s. clotth. "Mr. Collier's general arrangement appears to have been carefully devised, and is probably as neat as the nature of the subject admits of. It is Impos- sible alter a perusal of the book to doubt that the author has honestly studied the subject, and has not contented himself vith the practice of piecing together head notes from reports." — Solicitors^ Journal. " Mr.ColIier has not shrunk from point- ing out his views as to the reconcilability of apparently conflicting decisions or as to many points on which the law is still; unsettled; without making any quota?- tions for the purpose of illustrating the above remarks, we think we are justi- fied in commending this treatise to the favourable consideration of the profes- sion."— iaw Journal. *' Mr. Robert Collier's treatise on the subject deserves attention beyond the limits of bis profession. The chapter showing the modes in which liability may be incurred is full of instructive warning." — Saturday Review. *' The perplexity of the laws relating to personal liability, naturally suggests a collection of precedents and cases which may be considered settled, and of direct application to the generality of cases; and this the author appears to have done with success, as Jar as we can jud^e of the merit of the work." — Standard. '•This isavaluablelegal work, which should be in the hands of all speculators- in the formation of new ventures in the shape of joint stock companies and associations. It is important that such persons should know the exact position they assume, in a legal point of view, and this they will be enabled to do by a perusal of this work, written by a bar- rister of ^ome repute." — Bullionist. "This work he has done very tho- roughly, and the scope of the treatise is far wider than the author has laid down in hU preface. There is probably no branch of the law of contracts more difficult and intricate than this of con- tribution, and the cases quoted by Mr. Collier are treated with great discrimi- nation, so that the book enables a man who has not made the subject a matter of special study to advise with compara- tively small trouble to himself. This is the advantage of writers devoting them- selves to what we may call the byeways of the law— a dangerous track lor the weakly, the infirm, or the unaccustomed, but light and easy enough with such a guide as Mr. Collier. Laymen may also learn from the work the exact liability which they incur before entering into contracts, and thus avoid the chance of ruin." — Irish Law Times, " The work is clearly and vigorously written, and Mr. Collier has managed to put a great deal of information into a smalt space. The book will be found to be a useful addition to the list of treatises on a branch of the law which has gi own immensely since 1862," — Athenceum. " Mr. Collier has carried out bis in- tention, and has produced a work of great utility." — The Law, BUIfLEY AND BUND'S NEW BANKRUPTCY MANUAL. A MANUAL of the LAW and PRACTICE of BANK- RUPTCY as Amended and Consolidated by the Statutes of 1869: with an APPENDIX containing the Statutes, Orders and Forms. By John F. Bulley, B.A.,and J. W. Willis-Bund, M.A., LL.B., Barristers-at-Law. 32mo. 16». cloth. With a Supplement including, the Orders to April, 1870. •»• The Supplement may te had separately, \s. sewed, "This is a treatise, not an edition of the acts, and where the law is to a large extent new, this is the best, though the most troublesome, mode of dealing with it. A very complete index makes the work all that the practitioner, be he bar- rister or solicitor, can require."— Zaw Times. 48 LAW WORKS PUBLISHED BY mv. @feg» g iHagt0tgrt al 212aorfe0» Oke'g magisterial Synopsis; a Practical Guide for Magistrates, their Clerks, Solicitors, and Constables ; comprising Summary Convictions and Indictable Oflfences, with their Penal- ties, Punishments, Procedure, &c. ; alpJuibetieally and tubularly arranged: with a Copious Index. Twelfth Edition, much enlarged. '■ I5y Thomas W. Saundees, Esq., Barrister at Law, Recorder of Bath. In 2 vols. Svp. 60». cloth. (In October.) Oke's Laws as to Licensing Inns, &c. Second Edit. 1874 ; containing the Licensing Acts, 1H72 and 1874, and the other Acts in force as to Ale-houses, Beer-houses, Wine and Refreshment-, houses. Shops, &c., virhere Intoxicating Liquors are sold, and Billiard and Occasional Licences. Systematically arranged, with Explanatory Notes, the authorized Forms of Licences, Tables of Offences, Index, &c. By George C. Oke, late Chief Clerk to the Lord Mayor of London. Second Edition, by W. C. Glen, Esq., Barrister at Law. Post 8vo. 10s. cloth. "It is superfluous to recommend any we should say a treatise on it. Every- "work on magisterial law which bears the thing appears to be given which can name of Mr. George C. Oke on the title by possibility be required, and the forms page. This treatise, which Mr. Oke are abundant" — Law Times. modestly describes as little, is a com- •• The arrangement in chapters by prehenaive manual. The law is cited in Mr. Oke seems to us better than the a manner easy of reference. There are plan pursued by the authors of the rival explanatory notes, a tableof forms, some work; and we think that Mr. Glen has of them original, a table of offences, and done well to leave in many cases a con- a copious index. Mr. Oke also gives a else statement of the eifect of the legisla- very clear exposition of the much dis- tion repealed by the late act. He also puted sections 45 and 46 of the new gives a useful list of places beyond the Licensing Act." — Law Journal. metropolitan district and in the police " Mr. Oke has lately brought out by diatrict."— Solicitor^ Journal. far the best edition of the act, or perhaps Oke's Handy Book of the Game Laws ; containing the whole Law as to Game, Licences and Certificates, Poaching Preven- tion, Trespass, Rabbits, Deer, Dogs, Birds and Poisoned Grain throughout the United Kingdom. Systematically arranged, with the Acts, Decisions, Notes, Forms, Suggestions, &c. By George C. Oke, Author of "The Magisterial Synopsi.i," &c. Third Edition. By J.W.Willis Bund, Esq., Barrister at Law. 12ino. (In the Press.) Oke's Fishery Laws; comprising Private and Salmon Fisheries in England. Second Edition. By J. W. Willis Bund, Esq., Barrister at Law. 1 vol. 12mo. (/re the Frees.) Oke's Law of Turnpike Roads ; comprising the whole of the General Acts now in force, including those of 1861 ; the Acts as to Union of Trusts, for facilitating Arrangements with their Creditors ; as to the interference by Railways with Roads, their Non- repair, and enforcing Contributions from Parishes, &c., practically arranged. With Cases, copious Notes, all the necessary Forms, and an elaborate Index, &c. By Georqe C. Okb^ Second Edition, 12mo. 1 St. cloth. ©- MESSRS. BUTTER WORTH, 7 FLEET STREET, E.C. 49 Oke*s Magisterial Fonuulist; being a Complete Collec- tion of Forms and Precedents for practical use in all Cases out of Quarter Sessions, and in Parochial Matters, by Magistrates, their Clerks, Attornies and Constables. By George C. Oke, Author of "The Magisterial Synopsis," &c. Fifth Edition^ enlarged and improved. By Thomas W. Saumders, Esq., Barrister at Law, Recorder of Bath. In 1 vol. 8vo. 38s. cloth. ** The last edition of this very useful 'woi^k was published in 1868. Sincewhlch time, in addition to numerous amend- ing and consolidating acts bearing upon magistiates' law, other important sta- tutes have come into effect. New forms, applicable to these and other acts, have been prepared with much care by the learned editor of the present edition (Mr. Saunders), while those which had become inapplicable have been elimi- nated. Besides the table of contents, a table of statutes, connected with the forms, has been added; a'clear, unusu- ally copious index leaves nothing 1o be defired by those who have to adnu- nister the branch of the law to which Oke's Magisterial Formulist relates." — Zr 2, 1875. III. Statutes of (B75 (ThI'-d Notice). IV. Dif&t nf t asfs. V. [nu>rmed ate Rximtnation, January, iHTfi: a-esHons and Answers. V[. Final Examination, Anrll, 1B76: Questions and Answers. VII. Tiie New Law Dictionary. VIII. Kevieus of Buoka. IX. Corre- suonilence and Notices. , No. XXVI.— Hilary, 1876, I. The New Rules relatinsrlo ExaminBliona. II. The Statutes of 1875 (Second Notice), III. Tilgen nfCai'PH. IV. Imermediate Examination, Iflictiaeimas Si(tlnei>< IB7S: QdHStlons and Anhueri. V. Final Evamlnatron, Hilary bittings, 1876: Questions and Answers. VI. RevlewB. VII. Corre- spoudence ai.d Notices. No. XXV.— Michaelmas, 1875. f Statute of Frandnlpnt Conveyances, 13 Ellz. c. 5, II. Statutes of 1875 : First Notice. III. Dffrest of Canes. IV. Iniermediate Examinstion, Trinity Term, 1875: QiteBttons and Answen. V. Final Examination, Michaelmas Teriu, 1875: Questionn andAnbwers, VI. KeWews of Books. VII. Cor- respondence and Notices. No. XXIV.— Trinity, 1875. I. The Statute of Uses, continucl. II. ntfrest of Cases. IK, Intermediate Examlnatfon, Easter Term, IB75: auesiions and Answers, fV. Hnal Rtamlnation, trinity Term, 1875: Quebtionk and Auawers. V. A New I^w Ulciionary. VI. Corre»pojideace aud Notices. No. XXIII.— Easter, 1875. r. The Statute of Uses. II. The Statutes of 1B74 (Third Notice). IIL Diee«t of Cv^t. IV. Inter- mediate b^aiulnailun, Hilary Term, 1B75: Questions and Answerer. V. Fiasd Exauuuttlon, Easter 'lerm, 1875: Quesiicns and AnswcrK. VI. Correspondence and Notices. No. XXII.— Hilary, 1875. I. The Statute of Frands In relaUon tn Contracte of Sale : Sale v, Lambert, and Potfer ». Duflield. II. The statutes of l»74 fSecond Notice). lU. Ulitest of Cai«a. IV. Iniermedlate Examination. Mfchaelmiis Term, 1874: Questions and Answers. V. Final Examination, HiIwtt Term, 1875- Que^- tions aad Answers. VI. Notice of Intermediate Examinations for l(*75. VII. Correspoadence, &c. No. XXI.— Michaelmas, 1874. , I. The Statutes of 1874 (First Notice). II. Digest of Cases. HI. Intermediate V.x. aminaiion. Trinity lerm,, 1B74: Questions and Answers, IV. Final Examination Michaelmas Term, 1874; Questions and Answers. V, Keviews of £ooks. VI, Corre- spondence and Notices. ^ No. XX.— Trinity, 1874, !■. Legislative Prospects of the Session. II. Digest of Cases, HI. Intermediate Ex- amiuatinn, Easter Term, 1874: Questions and Answers. IV, Final Bxamioatioa Trinitv Term, 1874: Questions and Answers. V. Reviews. VI, Correspondence and Notices' No. XIX.— Easter, 1874, L Leadine Cases, continued, fl. Digest of Cases. HI. Intermediate Examination. Hllarv Term 1674: Qiie»ilon« and Answers, IV. Tlnal Examination, Easter Tem, 1674: QueHlions and Answ^rv' V, Review: Seventh Edition of Stephen'- Blackslone^k Commentaries. VI, Corre8pondence;&J*. No. XVIII.— Hilary, 1874. i; Statutes of 1873 (Second Notice including the Supreme Court of Judicature Art and subsequent Statutes). IT. Digest of Cases. 111. Intermediate Examinltinn Michaelmas Term, 1873: Questions and Answers. IV. Final E?lSinaSoD?^HaaT; Term, 1874; Questions and Aoswers. V. Correspondence and Notices. . "^'. o- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 61 THE ZiAVr EXAMINATION J OURNAI.- continued. No. XVII.— Michaelmas, 1873. LLeadinff Cases (Note by the Editor), 11. Statutes of 1873 CFirst Notice). III. iJigesi of Cases. IV, Intermediate ExaminatioD, Trinity Term, J873: Questions and Answers. V. Final Examination, Michaelmas Term, 1B73: Questions and Answers. yi. Nutice of Iniernieuiate Examination for 1874, Vll. Keviews of Books, ViJ[, Law btudeui's Societies. IX. Correspondence. No. XVI.— Trinity, 1873. I. The Study or the Law, conclu led. I, Lmding Cases; Spencer's Case, continued. TIL Otve^tof (Jases. IV. iDteriuedUte Esaaiiuaiion, Easier, iB73: Quc&tions an I Answers. V. Final Evaiiilna- tioii, Trmtiy, \i7i: aue&tious anu Answers. VI. A Keview: Kelly's Urafisman. Vll. Curres- pondeuctr an J Notices. No, XV.— Easter, 1873. I. Tbe Study of the Law, continued. II. Analysis of Leading Cases. HI. Digest of Casps. IV. In- tHriuetion5 and Ai'ttwers. V Filial Examinaiinn, Micnaflmas ierm, i872: Qutrstluns and Answers. \L Reviens. VII. Answers to L'orrespuudenta and ftotlces. No. XII,— Trinity, 1872. I. Public proBfHintors, contlnned. II. Study of the Law, continued. Il . Di|?pst of Cnses. IV, Inier- meExamiuation(EasterTerni,1872}Cluestioii> and Answers. V. J-iLalE^amfnalion (Trinity Term, 1872) Que-ticus and AoKWfT'i. VI. Law Stuuenis Coiierebs, Birminphitnt : Law Examinations Vll. A ' Review : Hunt's Law of Fraudulent tJonveyances and Bills of Sale. VIII. Anawers to Correspondents. No. Xr,— Easter, 1872. I. Thp Study of the Law. II. Leeislative Prospects of the Session : Married Women's propf rly Act Anietidinent Bill : Inipurisl Couit of Appeal. III. Divert of Ca»es. IV. Inttrniedlaie Exainliiatidn diiesttunii and Anxuers (Hilary Term, 1872). V. Final Examlnaiiou Questious aud An^wtsrs (barter lerui, 1072}. VL Answers to Correspondents. . No. X.— Hilary, 1872. L Notice of the late Editor. IL The Study of the Law. HI. Dierest of Canes. IV. Intermediate F.x- aniiiiaiiiinQn*«tiniis aud Answers (Michaelmas, 1871). V. Final Examination QuestlousaudAusueri ( Hilary, 1 872 J. VI. Ausw ers to Correspondents. No. IX.— Michaelmas, 1871. I On Examinalinns. IL TbeSubjeci of Public Prosecutors, continue 1. IH. DlpestofCascs. IV. Inter- lueiliaie Examination Quesliunb on Chilly, Widianm and Smith (Triuitv. I87I), wftb Answer*. V. Fmal Examination auesiions and Answers(MichaelmasTeim, 1871). VL Reviews of Boolts. VIL An.uers to Cwrrespondeuts, No. VIII.— Trinity, 1871. I On theNeceisiiyof providineaPublicProseculor; bytheElitor. L HowMr.lWansfieldDenman iias-edhls"Fliial:"bvE.H. HI. UieestofCa^eH. Note by the Editor. IV. Intermediate fexaii.lnalifni , Q.ie3Ioli,and, M.A., Fellow of Exeter College, and Chichele Professor of International Law in the University of Oxford, and of Lincoln's Inn, Esq., Barrister at Law 8vo. 7s. 6d. cloth. " A work of great ability," — AtliemBum. ** Eiuitled to very high commenda- tion." — Zaw Times. ** The essays of an author so well qualified to write upon the subject." — Lavf Journal. " Wecanconfidentlyrecommend these essays to out readers.*" — Zaw Magazine. " A work in which the whole matter is easily intelligible to the lay as well as the professional f\ib]ic."— Saturday HeviewJ " Mr. Holland'; extremely valuable and ingenious esia,ya."— Spectator. WRIGHT ON THE I-AVT OF CONSFIRACV. THE LAW of CRIMINAL CONSPIRACIES and AGREEMENTS. By R. S. Wright, of the Inner Temple, Barrister at Law, Fellow of Oriel Coll,, Oxford. 8vo. 4s. cloth. " It is with great pleasure that we notice this short but very able and thorough work. It shows not merely un- sparing and well directed research, but a power of discrimination and analysis of which it is rarely our good fortune to meet with, and its matter is conveyed in language equally remote from the dry and withered style of the ordinary text- book, and ft-om the oracular diction in which too many of the modern school of jurisprudence enshrine their fine ideas." — Solicitor^ Journal, *' Looking at this work from a pvie^ legal point of view, we have mi baiitalAmi in according it v&f i^ffi praise."— JSpectater^ CHITTV, Jnn., PRECEDENTS IN PLEADING.— 3rd Edition. CHITTY, JuN., PRECEDENTS in PLEADING; with copious Notes on Practice, Pleading and Evidence, by the late Joseph Chittt, Jun., Esq. Third Edition. By the late Tompso^ Chitty, Esq., and by Leofric Temple, R. G. Wiiliams, and Charles Jeffery, Esqrs,, Barristers at Law. Complete in one vol, royal 8vo. 38s. .cloth. i.OVESY'S liAVr OF MASTERS AND ^VORKMEN. The LAW of ARBITRATION between MASTERS and WORKiMEN, as founded upon the Councils of Conciliation Act of 1867 (30 &31 Vict. c. l05), the Master and Workmen Act (3 Geo. 4, c. 96), and other Acts, with an Introduction and Notes. By C. W. LoVEST, Esq., of the Middle Temple, Barrister at Law. 12mo. 4s. clotb. -® MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 55 Supreme Appellate Jurisdiction. A Speech delivered in the House of Lords on the llth June, 187*. By the Right Hon. Lord O'Hagan. 8vo. Is. sewed. The Law and Facts of the Alabama Case, with Reference to the Geneva Arbitration. By James O'Dowd, Esq., Barrister at Law. 8vo. 2s. sewed. A Letter to the Bight Hon. the Lord High Chancellor concerning Digests and Codes. By William Richard Fisher, of Lincoln's Inn, Esq., Barrister at Law. Royal 8vo. Is. sewed. Gray's Treatise on the Law of Costs in Actions and other PROCEEDINGS in the Courts of Common Law at West- minster. By John Gray, Esq., of the Middle Temple, Barrister at Law. 8vo. 21s. cloth. *•* This Work embraces the whole modern Javt and Pra^ctice of Costs, including thfc important provisions of the Common Law Procedure Act and Rules, 1852, and th^ recent Statutes affecting the Jurisdiction of the County Courts. Fnlling's Practical Compendium of the Law and TTsage of MERCANTILE ACCOUNTS; describing the various Rules of Law affecting them, the ordinary Mode in which they are entered in Account Books, and the various Forms of Proceeding, and Rules of Pleading, and Evidence for their Investigation, at Common Law, in Equity, Bankruptcy and Insolvency, or by Arbitration. With a SUPPLEMENT, containing the Law of Joint Stock Companies' Accounts, under the Winding-up Acts of 1848 and 1849. By Alexander Pulling, Esq. of the Inner Temple, Barrister at Law. 12mo. 9s. boards. Hamel's International Law.— International Law in con- nexion with Municipal Statutes relating to the Commerce, Rights and Liabilities of the Subjects of Neutral States pending Foreign War; considered with reference to the Case of the "Alexandra," seized under the provisions of the Foreign Enlistment Act. By Felix Haegrave Hamel, of the Inner Temple, Barrister at Law. Post 8vo. 3s. sewed. Zeyser on the Law relating to Transactions on the STOCK EXCHANGE. By Henry Keyseb, Esq;, of the Middle Temple, Barrister at Law, 12mo. 8». cloth. o- 56 LAW WORKS PUBLISHED BY The Inns of Conrt and Legal Education pending Ijegislation Reviewed, with Suggestion's for the proper Founda- tion of a Law University. A Paper read at the Provincial Meeting of the Incorporated Law Society of the United Kingdom, held at Liverpool, 14th October, 1875. By C. T. Satjndbes, a Member of the Council. 8vo. Is. sewed. Gnrney's System of Short Hand, as used by both Houses of Parliament. 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