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THE 
 
 NEW PRACTICE 
 
 COURT OF CHANCERY 
 
 UNDER THK 
 
 ACTS* 15 & 16 VICT. cc. 80, 86, 87, 
 
 AND 
 
 THE SUBSEQUENT .GENEEAL ORDERS; 
 
 IXCI.TJDING 
 
 PROCEEDINGS IN THE JUDGES' CHAMBERS; 
 
 WITH 
 
 FOEMS OF OBDEES, AFFIDAVITS, COSTS, PLEADINGS, ETC. 
 
 BY 
 
 FREDERICK SIMS WILLIAMS, Esq., 
 
 BABBTSTER AT. LAW. 
 
 LONDON: ' 
 S. SAOIET, 1, CHANOEET LANE, FLEET STREET, 
 Eatu JSooMtller mH ^ublisi^tt. 
 
 1854. 
 
^^5^73 
 
 LONDON : 
 PRINTBl. BV RAVNEB ANil UOUOliS, 
 
 lop. Fetter Lane, Fleet Street. 
 
PREFACE. 
 
 In oflPeriiig these pages to' the members of the legal ■ 
 
 profession, the author must beg that they may be 
 
 viewed -Hrith that kind' indulgence which is usually 
 
 extended by that learned body to any attetapt to assist 
 
 the practitioner in his labours. The work is designed 
 
 to be supplementary to the many useful books already 
 
 published on the practice of the Court of Chancery. 
 
 The earlier practice will therefore • not be found in it, 
 
 except where necessarily touched upon, in order to tErow 
 
 light on the changes introduced by the late Chancery 
 
 . Acts and Orders. An Appendix of Pleadings has been 
 
 added which are all framed under the late Acts, arid 
 
 which, it is hoped, may be found of _ service to the law 
 
 student. 
 
 a2 
 
IV rREFACE. 
 
 The work is necessarily defective and inconi^lete 
 from the fact of its being prepared during an inchoate 
 and transition stq,te of the practice, as well as being 
 written under much pressure, and with many in- 
 terruptions frojn professional business. While' fully 
 sensible of its many defects in point of completeness 
 and synthetical arrangement, the author feels at the 
 same time bound to state, in justice to his own 
 labours, that all the important cases which have been 
 decided under the new practice, will it is believed be 
 found scattered through the following pages, and he 
 ventures to hope from the want generally expressed^ of 
 some work of the kind, that this attempt, though a very 
 humble one, to supply that want, will not be altogether 
 useless. 
 
 Lincoln's Inn, December 1853. 
 
INTRODUCTION. 
 
 The great and important change introduced 
 by the late Chancery Acts into the practice of 
 the 0<)urt of Chancery, is the establishment of 
 the new jurisdiction at the Judges' chambers. 
 The question as to the limits and extent of the 
 JTifisdiction at chambers is at present from time 
 to time under the consideration of the Equity- 
 Judges, and may be regarded as still unsettled. 
 The prevailing opinion, however, is certainly on 
 the side of there being no defined limit to that 
 jurisdiction, and of the individual Judge having 
 the power, at his sole discretion, to determine 
 from time to time what matters shall be so heard. 
 The only cases which have come before the Court, 
 and. have given rise to any discussion of the 
 question, seem undoubtedly to favor this opinion. 
 
 In the leading case of Ashley v. Sewell, which 
 is noticed infra^ p. 331, in Chapter IX. on 
 Business at Chambers, the Lord Justice Knight 
 
VI INTBODUCTION. 
 
 Bruce is reported, with reference to a question 
 which was raised as to the extent of the jurisdic- 
 tion at chambers, to have used these words in 
 the course of the discussion : " It is admitted 
 that the object of the present application can be 
 obtained by the more expensive course of filing 
 a bill or claim. What difference can it malc4 to 
 proceed under the statute f " In other words, if it 
 can be done by bill or claim, why may it not be 
 done by summons at chambers ? 
 
 In this pointed sentence, if it is to be regarded 
 as being at all of general application, is contained 
 the germ of a wide and important question which 
 must at no distant day be raised, materially 
 aflFecting the interests of the suitor ; but as the 
 present work is designed to be, what its name 
 imports, a mere book of practice, to assist the 
 practitioner, without being argumentative or con- 
 troversial, it is a question which it would be 
 neither useful nor fitting to enter upon at any 
 length here. It may suffice at present to observe, 
 as a ground for hesitating, at least to adopt this 
 prevailing opinion as to the extent of the juris- 
 diction at chambers, that the very fact of there 
 being certain heads of business, eleven in number, 
 solemnly settled and agreed upon, and publicly 
 notified as comprising the various kinds of 
 business transacted at chambers, seems incon- 
 sistent with the idea of there being an unlimited 
 and arbitrary jurisdiction. 
 
INTRODUCTION. VU 
 
 It ia true, that some of those heads, parti- 
 cularly those relating to the " conduct of suits," 
 and to the " management of property," are of a 
 somewhat vague and indefinite kind, and in 
 practice they have been in the different Judges' 
 chambers construed to include almost every 
 species of application, except applications for an 
 injunction, or a ne exeat, or matters of the like 
 very special nature, which have not yet been 
 granted at chambers, and except also the vacating 
 of the recognizance of an ofiicial manager, and 
 other matters connected with the Winding-up 
 Acts, which by the 10th section of the Master in ^ 
 Chancery Abolition Act have been expressly 
 appropriated to the semi-defunct jurisdiction of 
 the Masters, and are not yet brought under the 
 jurisdiction at chambers. 
 
 It appears however to the writer of these 
 pages to deserve very grave consideration, whether 
 the view now generally taken jvith respect to the 
 jurisdiction at chambers was ever in the contem- 
 plation either of the Chancery Commissioners, or 
 of the Legislature which grounded the remedial 
 measures in Chancery upon their valuable report, 
 • at the time when the Chancery Acts were passed. 
 It deserves to be considered, looking to the very 
 large discretion actually in practice delegated by 
 the Judges to their chief clerks, and looking to 
 the constitution of that new tribunal, and if such 
 a point may be glanced at, without the remark 
 
viii iNTEODUCTipSr. 
 
 being regarded, as offensive, or liable to miscon- 
 struction, lookiBg also to the previous habits 
 occupaftons and pursuits of the majority of the 
 persons who have been selected, and who have 
 been wisely and discreetly selected to fill those 
 important offices, whether notwithstanding their 
 knowiti qualifications and aptitude for business, 
 it'-is either wise or expedient that they should 
 be entrusted with the decision of questions such 
 as, for example, the dispensing with represen- 
 tation to the estates of deceased, persons under 
 the 44th section of the New Procedure Act, 
 the directing- actions of ejectment to be brought, 
 the making such decrees as in Ashley v. Sewetl, 
 and other matters of the like speciall nature, 
 requiring very considerable legal acumen as well 
 as acquaintance with the rules and practice and 
 doctrines of equity ; and whether it would not be 
 likely to be conducive to the public interests and 
 to the ultimate success of a great change, in 
 itself in many respects highly beneficial, if the 
 duties of the chief clerks were confined, to the 
 taking of accounts, the prosecuting inquiries for 
 creditors next of kin and other claimants, the 
 granting common orders to amend, orders for 
 extension of the time to take a step in the 
 cause, the ordinary administration decrees, con- 
 sent orders generally, and all other the like 
 humbler and more ministerial functions. 
 
 If it is said that there is security enough for 
 
INTRODUCTION. - ix 
 
 ensuring sound and consistent decisions in matters 
 of a higher kind, in the facility! afforded for con- 
 sultation personally with the Judge, and Hlb. the 
 practice of adjourning questions of any nicety 
 to be argued in open Court, as well as in the 
 facilities afforded for an application to the Court 
 to discharge or vary the chief clerk's orders or 
 certificates, an obvious reply is that, in fact, the' 
 personal consultatfion with the Judge before 
 orders are rfiade, except in some very special and 
 prescribed matters is not the general practice, 
 nor is the adjournment to open Court the general 
 practice, except as to the construction of instru- 
 ments or upon some nice . point of law, and by 
 no means is it universalis/ done, as appears to have 
 been contemplated, in every case where desired 
 by the suitor, and as to the right of appeal, 
 orders which may be erroneous or questionable, 
 are often acquiesced in, for want of inclination or 
 of means to dispute them. 
 
 One circumstance connected with this question, 
 which is not less important to the suitor, than 
 it is to those who represent and who have to 
 protect the interests of the suitor, and which 
 ought not to be lost sight of in the consideration 
 of the question, is, that the chief clerks, with 
 a less amount "of learning and experience, ex 
 hypothesis than the Judges on the bench, yet 
 have not the assistance of the labours and re- 
 searches of a learned bar; of those arduous la- 
 
INTRODUCTION. 
 
 hours and researches, to which the most eminent 
 of our Judges, in past and present times, have 
 not scrupled to acknowledge themselves indebted, 
 as a means of arriving at sound judicial con- 
 clusions. 
 
 It may be added, that the private consultation 
 with the Judge, in those cases in which the 
 matter is not regularly heard before him at 
 chambers, but his directions only are sought for 
 the guidance of the chief clerk, being therefore 
 not in the presence of the parties, and possibly, 
 though of course unintentionally, if it ever occurs, 
 without the point being put to him in the exact 
 form and shape in which it would be presented 
 by the parties, and at all events without the 
 advantage of hearing both sides discussed, seems 
 in itself open to some objections. 
 
 One more inconvenience resulting from too 
 extensive and undefined a jurisdiction at cham- 
 bers, is the vast and rapid increase of the business, 
 and the consequent arrears, which already, as is 
 known to every practitioner frequenting cham- 
 bers, begin to occasion serious delay, in one at 
 least of the Judges' chambers, from the more 
 than ordinary extent and pressure of the business 
 in that branch of the Court, and which threaten, 
 if they increase in the same proportion for the 
 ensuing as for the past year, to produce an 
 amount of obstruction to the dispatch of business 
 and the progress of suits, hardly less formidable 
 
INTRODUCTION. xi 
 
 than that which was experienced in the Masters' 
 offices, and which led to the abolition of the 
 Masters. 
 
 Not to dwell further on this subject, the 
 author has only to offer a few words, in con- 
 clusion, with reference to a change in the plan 
 of his work since it was first projected. His first 
 intention was to -include in the Appendix, Forms 
 of Decrees and Orders adapted to the present 
 practice. It came to his knowledge, however, in 
 the course of his researches into this branch of 
 his subject, that a work having this object, and 
 intended to be intituled "A New Edition of 
 Seton on Decrees," was in progress, and very 
 near its completion, which having been prepared 
 with the aid of one of the Registrars of the Court 
 of Chancery, cannot fail to satisfy all the require- 
 ments of the Profession on this important branch 
 of practice. 
 
 With respect to the Chapter which has been 
 introduced on Business at Chambers, the author 
 feels its want of completeness and precision. 
 This is a subject more fit to be handled by one 
 of the chief clerks, who have facilities for furnish- 
 ing an insight into the details of the ordinary 
 routine and practice at the Judges' chambers, 
 which members of the bar, who by the established 
 usage are necessarily strangers to what goes on 
 at Judges' chambers, cannot possess. 
 
 One subject has been left wholly untouched, 
 viz., the practice as to special cases under the 
 
XI I liSTEODUCTION. 
 
 Act 13 & 14 Vict. c. 35, known as Sir George 
 Turner's Act. This is not from any want of 
 importance in the subject, but because it was 
 necessary from lack of time and the pressure of 
 other occupations to put some limit to this Work, 
 and it was intended to be confined strictly to the 
 practice in suits ; and because it is conceived, 
 though, perhaps, without suflGicient grounds, that 
 in consequence of the changes and facilities intro- 
 duced by the late Chancery Acts, the mode of 
 proceeding by way of special case, though most 
 useful at the time, will now be less frequently 
 resorted to. 
 
 The case of Evans v. Saund&rs, reported in a 
 late number of the Law Times, will furnish a 
 useful clue to much valuable learning on this 
 subject. 
 
 The late act for regulating the jurisdiction in 
 lunacy 16 & 17 Vict. c. 70, and the subsequent 
 Orders in Lunacy, as well as the late important 
 act for regulating Charitable Trusts, being the 
 16 & 17 Vict. c. 137, require to be attentively 
 studied by every Chancery Practitioner; but those 
 acts, except, perhaps, the 28th, 29th, 30th, 31st, 
 40th, 41st and 51st sections of the Charitable 
 Trusts' Act, which have a more immediate bear- 
 ing on proceedings in the Equity Courts, were 
 thought to be scarcely within the scope of this 
 Work. 
 
 Lincoln's Inn, 
 Dec. 1853. 
 
Table of contents. 
 
 CHAPTER I. 
 BILL. 
 
 Section I. 
 
 Bill to be printed, written alterations in bill, when written bill 
 may be filed, claims always printed before filed, defendant 
 entitled to ten printed copies, rate of charge per folio, endorse' 
 ment on bill or claim, stamp, whether double stamp, bill by 
 next friend, information at suit of relator, frame of bill, cer- 
 tainty of allegation in bill or claim, misjoinder. Page 1 
 
 Sectiok 2. 
 
 Service of bill, how made, when affidavit of service dispensed 
 with, appearance, service of notice of motion before appear- 
 ance, rules as to subpoena and appearance, entering appear- 
 ance for defendant, where defendant an infant or of unsound 
 mind, where party out of the jurisdiction, rules for computa- 
 tion of time, consequences of not appearing, substituted service, 
 service of amended bill, on defendant's solicitor, on defendant 
 jiersonally, guardian ad litem, how appointed, representative 
 for the purposes of the suit, when appointed, when upon 
 notice, when ex parte, not where deceased person's estate is 
 the subject of administration, administrator ad litem, repre- 
 sentative not , appointed where jnobate in dispute, nor for 
 obtaining money out of Court. Page 1 f 
 
XIV TABLE or CONTEMTS. 
 
 Section 3. 
 
 Amended bill, how atnendments made, within what time, when 
 
 ' fresh engrossment necessary, practice of amending defendant's 
 
 copy abalis;hed, amending without prejudice to injunction, 
 
 new facts and circumstances, when leave not given to add 
 
 them to the recprd, leave not given on application of defendant. 
 
 Page 39 
 
 Sectioit 4. 
 
 Revivor and supplement, order for revivor and supplemental 
 decree, on motion, order in what form, what changes of 
 interest contemplated. Court will not direct executors to admit 
 assets or otherwise the account to be taken, only the usual 
 supplemental decree can be obtained, the 52nd section applies 
 to claims as well as to billsj when a hand mbtion only, when 
 made in Court, when abatement by death of plaintiff, when 
 defendant may apply. When appearance to be entered, when 
 not, in cases of revivor, on supplemental decrees, where abate- 
 
 • ment takes place before decree, motion' to discharge order for 
 revivor, or supplemental order, within what time. Page 50 
 
 CHAPTER II. 
 
 Section 1. 
 
 INTEEEO&ATOEIES. 
 
 How filed, within what time, form of, obtaining further time to 
 flte, service of, what delivery sufficient, when may be filed 
 before printed bill on the file. Page 62 
 
 Section 2. 
 
 PLEA, DEMURRER, ANSWER. 
 
 Demurrer, within what tinie, to original or supplemental bill or 
 claim,' to iimended "bill or claim, costs of, when special order 
 made instead of merely allowing demurrer, plea,, within what - 
 time, to original or supplemental bill, to amended bill, costs 
 
TABLE or CONTENTS. XX 
 
 of, answer, within what time, when no answer required, en- 
 lari^enaent of time to answer; time to answer supplemental 
 matter under 'present practice, frame of, paragraphs numbered, 
 clerical error in, must still be a full answer, negative pregnant; 
 traversing note, answer may contain matter of defence, excep- 
 tions to, exceptions to answer of plaintiff, costs of discovery, 
 when answer treated as an affidavit, commissions to take 
 answers and oath of messenger abolished, answers sworn 
 according to ancient form of oath, answers sworn abroad Page 66 
 
 CHAPTER III. 
 
 CLAIMS. 
 Section I. 
 
 General Rules and Orders of the 22nd of April 1850 which 
 are not abolished, still regulate the practice on claims, rules 
 as to proceedings before the Master to be read since the 
 Master Abolition Act with reference to the like proceedings 
 at Judges' chambers, printed copy claim now substituted 
 for the writ of summons which is abolished, proceedings 
 Consequent on the service of the printed copy claim, the same 
 as upon the service of the writ of summons under the former 
 practice. '- Page 95 
 
 Section 2. 
 
 Guardian ad litem, when practice on claims the same as on bills, 
 as to entering appearances, so where claim multifarious, so as 
 to right to begin on appeal claims, distinction between simple 
 and special claims, making claim "special" nunc protmc,- 
 amendment, of common claims, of special claims, setting down 
 claims, no injunction on a claim, claim not generally applicable 
 where evidence conflicting, relief on claim secundum alle- 
 gata et probata, no preliminary inquiries on claims, special 
 inquiries and special directions, dismissing claim with liberty 
 to file bill, no discovery on a claim, vivd voce examination, 
 plaintiff's affidavits, parties to claims, subsequent incum- 
 brancers in foreclosure claims, in claims by married women, 
 production of documents, payment into Court. Page 108 
 
TAIiLK Oir CONTENTS. 
 
 CHAPTEE IV. 
 INTEELOCUTOET APPLICATIONS. 
 
 Section I. 
 
 PRODUCTION OF DOCUMENTS. 
 
 Production of docuir.ents, how obtained, by plaintiff, by de- 
 fendant, fjeneral rules as to production, earliest decisions on 
 the I8th and 20th sections, no affidavit now by party seeking 
 production, documents produced on oath, form of this oath, 
 form of order, application made at chambers not in open Court, 
 plaintiff seeking discovery of documents should proceed by 
 bill not claim, defendant's answer conclusive as to possession 
 of documents, exceptions to answer as to documents not 
 encouraged, as to company answering under their common 
 seal, inspection of documents by agent, delivery of documents 
 out of record office. Page 129 
 
 Section 2. 
 INJUNCTION AND RECEIVER. 
 
 Injunctions to stay proceedings at law now like other special 
 injunctions, not granted now for default of appearance, juris- 
 diction of Courts of common law in matters of injunction. 
 Common Law Procedure Act, Patent Law Amendment Act, 
 when inspection of machinery will be granted, injunctions not 
 granted where remedy at law, injunction not of course even 
 where right established at law. Lord Redesdale's rules, as to 
 restraining proceedings in foreign Courts, in cases of nuisance, 
 
 . or annoyance, substituted service of injunction bill, former 
 practice as to the common injunction, amending bill after the 
 common injunction dissolved on merits, writ of ne exeat, how 
 obtained, affidavits not to be taken before solicitor in the 
 cause. Page 144 
 
table of contents. xvu 
 
 Section 3. 
 
 MOTION FOR DECREE. 
 
 Motion for decree before replication, on what evidence, the ISth 
 section is retrospective, motions for decree to be heard as 
 causes. Court may direct suit to be prosecuted in the ordinary 
 way, one month's notice required, list of affidavits at foot of 
 notice, time for filing affidavits on motion for decree, answer 
 of one defendant n6t to be read against co-defendant without 
 notice, motion for decree to be entered with the registrar, how 
 to be entered with registrar, application to set down iqotion after 
 the month has expired, motion for decree applies only to bills 
 not to claims, evidence on motion for decree, must be a com- 
 plete not a partial decree, costs on motion for decree, asking 
 different relief at the bar. Pag^ 16S 
 
 Section 4. 
 
 OTHER INTERLOCUTORY APPLICATIONS. 
 
 Payment of money into Court at the hearing, without a motion, 
 payment out of Court, only on petition, special directions as to 
 mode of taking account, former practice on this point, transfer 
 made by consent to chambers instead of special directions, 
 interlocutory order for sale of real estate, former practice as to 
 sale of real estate, application may now be made immediately on 
 bill filed, order made only for protection of property and not 
 to forestal decision on points in the cause, payment of annual 
 income of property pending proceedings, motion to take bill 
 off the file for irregularity, motion to appoint a special ex- 
 aminer, when interlocutory applications made in Court, when 
 at chambers, dismissal of bill for want of prosecution, when 
 motion may be made, when bill will be dismissed after order 
 to amend, when after order to amend without prejudice to an 
 injunction, when replication must be filed or cause set down to 
 avoid dismissal, when motion to dismiss premature, practice 
 in other cases as to dismissal of bill, pendency of exceptions 
 b 
 
TABLE OF CONTENTS. 
 
 for impertinence did not prevent dismissal of bill under old 
 practice, when defendant may set down cause instead of dis- 
 missing bill, dismissal of bill on plaintiff's own application, not 
 after demurrer overruled, Court sometimes enters into merits 
 on motion to dismiss, dismissal in cases of abatement, costs in 
 such cases. Pa^e 180 
 
 CHAPTER V. 
 
 EVIDENCE. 
 
 Section 1. 
 
 ORAL EXAMINATION. 
 
 Issue to be joined by filing replication, in what form, repli- 
 cation to be filed though no answer, supplemental answer 
 filed by consent without withdrawal of replication, replication, 
 not necessary where motion for decree, what notice of filing 
 replication where an absconding defendant, old mode of examin- 
 ing witnesses on interrogatories abolished, plaintiff to give 
 notice how he wishes evidence taken, seven days' notice by 
 plaintiff required, evidence to be oral if any party desires it, 
 to be taken in the presence of parties counsel and solicitors. 
 Court will not appoint two examiners, when special examiner 
 appointed, examination de bene esse within the act, course 
 where witness too ill to attend, when evidence to be closed, 
 within nine weeks after issue joined, no commission necessary 
 within the jurisdiction, original depositions to be transmitted 
 to the record office, clerical error in depositions, decree against 
 defendant after examining him as a witness, subpoena to 
 coi;npel attendance of a p^rty at the hearing, when affidavits 
 admissible though evidence taken orally, cross-examination 
 and re-examination, how evidence taken in old suits. Page 203 
 
 Section 2. 
 
 AFFIDAVITS. , 
 
 Form of affidavits, affidavits as to particular facts admissible 
 though evidence taken orally, when answer treated as an affi- 
 
TABLE or CONTENTS. XIX 
 
 davit, what notice necessary where affidavit filed before issue 
 joined, what notice of cross-examining witness or party who 
 has made affidavit, as to evidence subsequent to the hearing, 
 affidavits sworn abroad, erasures in affidavits sworn abroad, 
 when Court takes judicial notice of affidavits sworn abroad, 
 signature of registrar of deeds in the colonies must be proved, 
 place where affidavit is sworn should appear on the -jurat, place 
 of residence of deponent should be stated on the affidavit, 
 inquiry before the Chancery Commissioners as to the use of 
 affidavit evidence, as to compelling attendance of witness 
 before examiner, extracts from parish registers now evidence 
 without verification, order in M'Intosh v. Tke Great Western 
 Railway Company affirmed but modified by arrangement. 
 
 Page 232 
 
 CHAPTER TI. 
 PAETIES. 
 
 New rules as to parties, when it will be sufficient to serve a 
 notice of the decree, practice of setting down cause on objection 
 for want of parties abolished, origin and effect of this practice, 
 when cestuis que trust necessary parties in foreclosure suits, 
 when not, infant cestuis que trust and persons entitled to 
 derivative and subordinate interests sometimes dispensed with 
 in foreclosure suits, as to parties in suits for executing trusts, 
 in suits relating to breach of trust, where sale under decree in 
 administration suit all cestuis que trust must generally be 
 parties, rule where suit framed under old practice, parties out 
 of the jurisdiction, not necessary in suits for appointment of 
 new trustees to make all cestuis que trust parties, where after 
 objection taken plaintiff amends his bill by adding parties such 
 parties must be served, costs of the day where suit defective 
 as to parties, where parties alleged to be out of the jurisdiction 
 the fact must be proved, course taken where the fact is not 
 proved, infants out of the jurisdiction may be served with 
 notice of decree, time for service of notice of decree, entering 
 memorandum of such service. Page 246 
 
 b 2 
 
TABLE 01' CONTENTS. 
 
 CHAPTER VII. 
 
 DECLARATOET DECREES. 
 
 Section 1. 
 
 No suit to be open to objection on the ground that a merely de- 
 claratory decree is sought. Court may now adjudicate between 
 some only of the parties interested, declaratory decree oaly 
 made where case for relief under the old practice, not in suits 
 quia timet, nor in respect of future and contingent interests, 
 practice where question raised by special' case, in administra- 
 tion suits the Court sometimes makes a declaration as to 
 expectant and future interests, in general a bill preferable to 
 a special case under Sir G. Turner's Act, Court more readily 
 determines questions where decision is sought with a view to 
 a present dealing with the property, some of the parties in- 
 terested in each view of the question must be before the Court, 
 decision not binding on absent parties, Court will now carry 
 .into effect an arrangement as to part of a testator's property 
 without administering the whole estate, whether the 51st sec- 
 tion applies to orders in the nature of administrative orders or 
 only to mere declarations of right, mode of raising costs in 
 cases under this section, whether Court can under this section 
 determine a legal question where not incident to any equitable 
 relief, case of the Birkenhead Dock Company, Court of equity 
 not to send a case for the opinion of a Court of common law, 
 may determine legal right with a view to granting equitable 
 relief, former practice as to sending cases to the common law 
 Courts, practice now to obtain attendance of common law 
 Judge, mode of obtaining attendailce of common law Judge, 
 leave given still in a proper case to bring action, provision 
 against taking opinion of Court of law not . retrospective, • 
 whether the provision applies where rights of the Crown 
 concerned, queere. Pagg 2?0 
 
TABLE OF CONTENTS. xxi 
 
 Section 2. 
 
 FORMS OF DECREES. 
 
 As to forms of decrees and orders generally^ under the new 
 practice, not to recite previous proceedings, to provide for 
 payment of the legacy duty. Accountant General to continue 
 investment and accumulation of dividends from time to time 
 without fresh order, where account of legacies directed, interest 
 to be computed witliout order, amendment of decree.or order, 
 practice on enrolling decree. Page 296 
 
 CHAPTER VIII. 
 
 FORECLOSUEE SUITS. 
 
 Court may now direct sale instead of foreclosure, and without 
 determining priorities, party clearly entitled not to be em- 
 barrassed by litigated questions between other parties, sale not 
 directed except under special circumstances, not the uniform 
 practice under thp old system to give successive incumbrancers 
 successive periods to redeem, sale not directed after decree for 
 foreclosure made under the old practice, Scde not directed on 
 interlocutory application but only at the hearing, usual order 
 in equitable mortgagee's suit^ where sale not directed against 
 remaindermen in respect of charge created by tenant for life, 
 foreclosure not granted under prayer for sale, semble, necessity 
 in general for prayer for specific relief sought, arrears of in- 
 terest not a charge on the land beyond six years, mortgagee 
 may tack arrears of interest for twenty years in suit against 
 the heir under mortgagor's covenant, equitable mortgage by 
 deposit of title deeds, where no written memorandum of 
 deposit, when mortgagor bound by foreclosure decree notwith- 
 standing absence of necessary party, plaintiff in foreclosure 
 suit should inquire of subsequent incumbrancers whether 
 they claim, costs where this is not done. Page 300 
 
XXU TABLE OT CONTENTS. 
 
 CHAPTEE IX. 
 
 BUSINESS AT CHAMBEES. 
 
 Ordinary routine of business at chambers, what it includes, does 
 not include applications under Trustee Acts, Legacy Duty 
 Acts, or Drainage Acts, where chief clerk makes order without 
 personal direction of Judge, course where application embraces 
 several objects one of which is properly made in open Court, 
 practice on petitions for administration of charities, renewal of 
 a lease may be obtained by summons, administration summons 
 for administering personal estate, duplicate summons filed in 
 record office, form of this summons, leading case of Ashley v. 
 5ewe22 under 4Sth section of the act, as to inserting special direc- 
 tions in order made on administration summons, case of Crawley 
 V. Maddocks as to cpnstruction of the 47th section of th,e act, 
 extent of the jurisdiction at chambers under this section, pro- 
 ce'edings under decrees directing accounts and inquiries, when 
 the decree directing accounts and inquiries must be drawn up, 
 as to furnishing copies of accounts for the use of the Judge at 
 chambers, as to numbering the several accounts and inquiries 
 directed by decrees, claimants to come in under decree within 
 time fixed by advertisement, interest to be computed on debts 
 unless otherwise directed by order, as to obtaining assist- 
 ance of accountants and scientific persons, where this is 
 required cause should be transferred from Master to Judge at 
 chambers, mode of taking evidence after the hearing, course 
 now taken where a previous reference has been sent to Master, 
 as to allowances and fees to accountants and other scientific 
 persons, as to excepting to chief clerk's report, as to examining 
 witnesses before chief clerk, when a short certificate instead of 
 a formal report, as to discharging or varying chief clerk's" 
 certificate after it is filed, what proceedings may still be taken 
 before the Master, where Master may make partial report or 
 certificate, where parties delay to bring Master's report before 
 the Court solicitor to the suitors' fund may do so, former prac- 
 tice of the Master's offices abolished, proceedings under the 
 Winding-up Act to go to the Masters, as to jurisdiction at 
 chambers in matters now depending. Page 323 
 
TABLE OF CASES CITED. 
 
 Adams v. Adams . 
 Amies v, Kelse; 
 Anderson v. Guicfiard 
 Anonymous 
 Ashley v. Sewell 
 Atkinson v. Parker 
 
 -V. Tlie Oxford, Wor- 
 
 284 
 
 . 149 
 
 162 
 
 33, 327 
 
 331, 333 
 
 52 
 
 cester, and Wolverhampton 
 
 Sailnay Company . 46, 328 
 
 Attorney General v. Hudson . 93 
 
 V. The Sheffield 
 
 Gas Consumers' Company 151 
 Averall v. Wade . .315 
 
 B. 
 
 Baillie v. Jackson 
 Bainbrigge v. Baddeley 
 Baker v. Reeves 
 Balls V. Margrave 
 Banks v. Stead 
 Balinhard, De v. Bullock 
 Bannister v. Moody 
 Barrett v. Moore 
 Bamed v. Laing 
 Barton v. Whitcomb 
 Batten v. Parfitt 
 Bateman v. Cooke 
 Bayldon v. Fowler 
 Baynes v. Ridge 
 Beavan v. Lynn 
 Beetham v. Berry 
 Birkenhead Dock Case 
 Bentley v. Robinson 
 Binns v. Swallow 
 Bickford v. Chalker 
 Biggenden v. May 
 Black, In re Trusts of the 
 
 of 
 Btackborough v. Ravenbill 
 Blake v. Blako 
 
 Will 
 
 238 
 
 159 
 202 
 
 12 
 306 
 345 
 264 
 119 
 3 
 206 
 261 
 237 
 267 
 8 
 277 
 
 30 
 285 
 
 32 
 278 
 ,329 
 244 
 
 182 
 156 
 113 
 
 Page 
 Blakeney v. Dufaur . ] 62 
 
 Blaxland v. Blaxland . 352 
 
 Blenkinsopp v. Blenkinsopp 24 
 
 Blind School V. Goren . 182 
 
 Brennan v. Preston . 209 
 
 Brinton v. Hughes . 37 
 
 Bromitt v. Moor . . 320 
 
 Brown v. Oakshott . .156 
 
 V. Blount . 268 
 
 v. Field . . 284 
 
 Burgess v. Sturgis . 127 
 
 Burnett V. Foster . ,277 
 
 Bonfil V. Purohas . 55 
 
 Booth V. Creswick , 167 
 
 Boulding v. Boulding . 13 
 
 Bowen v. Price . . 64 
 
 Bowyer V. Phillips . 110 
 
 Boyd v. Jaggar . . 173, 189 
 
 Cable v. Cooper . . 229 
 
 Caddick's Settlement, In re 350 
 
 Cannon v. Evans . 372 
 
 Chaffers v. Headlam . 35 
 
 Chalk V. Raine . . 161 
 
 Chalmers v. Laurie . 268 
 
 "Chambre V. Maud . .113 
 
 Chappell V. Bees . , 310, 316 
 Chapman v. Chapman . - 317 
 Chard Railway Company v. Fripp 
 
 162 
 Charlton v. Allen 19, 128 
 
 Chatfield v. Berchtolat . 7 
 
 Cheatle V. Hextall ' . 231 
 
 Cholmondeley V. Clinton . 15 
 Christian v. Wren . . 89 
 
 Clegg V. Fishwick . . 162 
 Clements v. Bowes . . 16 
 Cockburn v. Green . ' 125 
 
 Cook V. Hall . , 209,210 
 
 CoUett V. Preston .• . 1 95 
 
XXIV 
 
 TABLE or CASES CITBD. 
 
 
 Page 1 
 
 
 
 Page 
 
 Combe t. The Corporation of I 
 
 Forbes v. Forbes 
 
 , 
 
 65 
 
 London 
 
 142 
 
 Forrest v. Scholcfield 
 
 
 111 
 
 Coombe v. Ramsay 
 
 42,46 
 
 Fortnum v. Cooper 
 
 
 177 
 
 Conyera, Thomas, thtf 
 
 Free 
 
 Foster v Cautliey . 
 
 . 
 
 33 
 
 Grammar School of 
 
 329 
 
 ■ — T. Menzies 
 
 
 60 
 
 Cope V. Russell 
 
 . 30 
 
 Fowler v. Bayldon 
 
 33, 
 
 257 
 
 Cooper V. Cable 
 
 229 
 
 Franks v. Wasbboume 
 
 
 111 
 
 V. Lewis 
 
 . 200 
 
 Freeland v. Stansfield 
 
 , 
 
 162 
 
 T. Prince 
 
 187 
 
 Fripp V. The Chard Railway 
 
 
 Cousins V. Vasey 
 
 169, 172 
 
 Company 
 
 158, 
 
 162 
 
 Covard v. Coward 
 
 183 
 
 
 
 
 Cox V. Barnard 
 
 . 362 
 
 
 
 
 .. Taylor 
 
 35,55 
 
 G. , 
 
 
 
 V. Yorke 
 
 110 
 
 
 
 
 Crawley t. Maddocks. 
 
 364 
 
 Garlick v. Lawson 
 
 
 274 
 
 Creed v. Say 
 
 272, 283 
 
 Garratt v. Niblock 
 
 
 182 
 
 Crofts V. Middleton 
 
 213, 223 
 
 Gill V. Gillard 
 
 
 236 
 
 Cross V. Thomas 
 
 . 59 
 
 Gilpin V. Magee 
 
 
 120 
 
 Crowv. Wbod 
 
 162 
 
 Girdlestone v. Lavender 
 
 
 307 
 
 Cutis V. Salmon 
 
 316 
 
 Goren v. Blind School 
 
 , 
 
 182 
 
 
 
 Goldsmid v. Stonebewer 
 
 254, 
 
 256 
 
 
 
 Goode V. Penney 
 
 
 295 
 
 D. 
 
 
 V. West 
 
 Gray v. Haig 
 
 • 
 
 118 
 91 
 
 Davies v. Davies 
 
 . 109 
 
 V. Dickinson 
 
 
 127 
 
 Davis V. Chanter 
 
 37 
 
 Grace v. Falkner 
 
 , 
 
 292 
 
 V. Davis • 
 
 . Ill 
 
 Great Western Railway 
 
 Com- 
 
 
 Day V. Day 
 
 239 
 
 pany v. M'Intosh 
 
 224 
 
 245 
 
 Dean and Chapter of Ely v 
 
 .Ed- 
 
 Greenwood v. Sutherland 
 
 
 275 
 
 wards 
 
 36, 37, 53 
 
 Gregg V. Taylor 
 
 
 189 
 
 Deaville v. Deaville 
 
 219 
 
 Gregory v. Atkinson 
 
 
 363 
 
 Densem v. Elworthy 
 
 ■ 262 
 
 . Greville v. Spooner 
 
 
 110 
 
 Dipple V. Corles 
 
 HI 
 
 Grote V. Bing 
 
 
 157 
 
 Poody V. Higgins 259 
 
 , 277, 279 
 
 Groves v. Lane 
 
 
 36 
 
 Drake V. West 
 
 . 151 
 
 Gumey v. Jackson 
 
 
 320 
 
 Drew V. Long 
 
 . 170 
 
 
 
 
 Dubbing V. Patchin 
 
 177 
 
 
 
 
 Duberly v. Daly 
 
 322 
 
 H. 
 
 
 
 Duffield V. Sturgis 
 
 205 
 
 H^g V. Gray 
 Hadlow V. Martin 
 
 • 
 
 91 
 188 
 
 E. 
 
 
 Hannan v. Riley 
 Hansons Trust, In re 
 
 ■ 
 
 253 
 329 
 
 Eccles V. Cheyne 
 
 . 125 
 
 Hardingham v. Pulman 
 
 
 60 
 
 Elworthy v. Densem 
 
 262 
 
 Harford v. Rees 
 
 ?13 
 
 222 
 
 Entboven v. Cobb 
 
 131 
 
 Harrold, in re 
 
 
 191 
 
 Evans T. Kinsey 
 
 . . 9 
 
 Harvey v. Brooke 
 
 
 351 
 
 Eninglon v. Fenn 
 
 54 
 
 Hay v. WiUoughby 
 Heathcote v. Edwards 
 Hele v. Bexley 
 
 
 294 
 
 182 
 
 38 
 
 F 
 
 
 Homing V. Dingwall 
 Hewitson v. Podhunter 
 
 • 
 
 26 
 34 
 
 Falkner v. Grace 
 
 292 
 
 Hextall V. Cheatle 
 
 
 231 
 
 Field V. Brown . 
 
 . 284 
 
 Higgins V. Dpody 
 
 
 277 
 
 Fiott V. MuUins 
 
 132 
 
 ffiles V. Moore . 
 
 
 159 
 
 Fitzgerald v. Bult 
 
 91 
 
 Hiorns v. Holtom 
 
 
 302 
 
 Flatow V. Delasoux . 
 
 . 114 
 
 Hobson V. Neale 
 
 
 295 
 1 15 
 
 Fletcher v. Rogers 
 
 275 
 
 Holden v. Chalcraft 
 
 
 Flower v. Walker 
 
 . 187.' 
 
 Holme v. Brown 
 
 
 152 
 
TABLE OF CASES CITED. 
 
 
 Page 
 
 HoUom V. Hiorns 
 
 . 302 
 
 Hopkin V. Hopkin 
 
 154 
 
 Honard v. Howard 
 
 . 230 
 
 Hughes V. Williams 
 
 313,315 
 
 Humberstone v. Ritchie 
 
 333 
 
 Hurst V. Hurst 
 
 304 
 
 Hossey v. Divett 
 
 56 
 
 M. 
 
 Page 
 
 34 
 
 239 
 
 Isaacs V. Wetherstone . 181 
 
 J. 
 
 Jackson v. Tumley 274 
 
 ,. Gurney . . 320 
 
 V. Parish . 205 
 
 James v. Jones . . 263 
 
 Jefferies v. Biggs . 128 
 
 Johns V. Mason ■ . . 118 
 
 Jones V. Batten 8 
 
 V. James . 263 
 
 Keeble V. Dennish . 110 
 
 Kelson v Kelson . . 370 
 
 Kemplay v. H^gins . Ill 
 
 Kirwan v. Daniel . . 268 
 
 Kitson ?. Sale . . 252 
 
 L. 
 
 Lambert v. Lomas . 65 
 
 Lamb v. Orton . . 139 
 
 Lancaster v. Lancaster . 164 
 
 Lancashire V. Lancashire 159 
 
 Langdale v. Gill . 48 
 
 Lavender v. Girdlestone . 307 
 Law V. The London Indisputable 
 
 Life Policy Company . 140 
 
 Lee v. Lee . 57, 190 
 
 Lenaghan v. Smith . 258, 282 
 
 Lewis V. Wayn . 307 
 
 Lidstone v. Wingrell . 79 
 
 Lodge V. Prichard . .184 
 
 Lowes V. Lowes 52 
 
 Lloyd V. Smith . . 362 
 
 V. Whitley . 309 
 
 Ludgatcr v. Channel . 1 63 
 
 Lupton V. White 183 
 
 Lynn v. Beavau . . 277 
 
 jnay v. Davidson 
 Mahon's Trust, In re 
 Manchester, Sheffield, and Lin. 
 oolnshire Railway Company v. , 
 The Great Northern Railway 
 Company . , 290 
 
 Mandeno v. .Mandeno 284, 308 
 
 Martin v. Hadlow 50, 55, 188 
 
 Matthews v. Pincombe . 112 
 
 v. Swallow . 348 
 
 Mayv. Biggenden 155,176,214,244 
 M'CuUock v. Hagger . 114 
 
 Meek v. Ward . 238 
 
 Mildmay v. Methuen . 374 
 
 M'Intosh V. The Great Western 
 Railway Company, 133, 136,137, 
 224, 230, 245 
 M'Laren v, Stjiinton . 150 
 
 M'Leod V. Annesley . 251 
 
 M'Neill V. Acton . . 191 
 Money v. Jordan . . 153 
 
 Moody V. Bannister . 264 
 
 Moore v. Hiles -^ . 159 
 Morehouse v. Newton 183, 184 
 
 Morrell v. Tinkler . 376 
 
 Mostyn, Lord, V. Rhodes 161 
 
 N. 
 
 Neale v. Hofison . 295" 
 
 Neck V. Gains .■ . 41 
 
 Neddy Hall's Estate, Jnre 244 
 
 Newton v. Charlton . 20 
 
 v. Newton . . 1 60 
 
 -, v. Morehouse . . 183 
 
 Normanville v. Stanning 155 
 Norton v. Steinkopf . 1 79 
 V.White . . 201 
 
 O. 
 
 Oliver V. Wright . .. 219 
 Ostell V. Lepage . 47 
 
 Owen V. Homan " . 160, 162 
 
 Oxford, Worcester and Wolver- 
 
 hampton Railway Company v. 
 
 Atkinson . 328 
 
 Parker v. Bloxam 361 
 
 V. Carter . . 56 
 
 Parsons v. Hardy . 205 
 
 Pascall V. Scott . . 89 
 
 Patrick v. Blackwell . 81 
 
XXVI 
 
 TABLE or CASES CITED. 
 
 Pawsey v. Barnes 
 Pennell y. Roy 
 Penney v. Goode 
 Penny v. Penny 
 Perry v. Knott 
 Petre v. Petre 
 Piddocke v. Smith 
 Pillan V. Thompson 
 Pinfold V. Pinfold 
 Potts V. The "Thames Haven 
 Dock and Railway Company 
 Povfell v. Povrell 
 Prichard v. Lodge 
 Prince v. Cooper 
 
 Page 
 
 117 
 
 150 
 
 131, 295 
 
 I2l,12fi 
 
 282 
 
 Prentice v. Prentice 
 
 R. 
 
 86 
 377 
 211 
 201 
 
 113 
 
 201 
 
 184 
 
 . , 187 
 
 279, 283 
 
 Rabbeth v. Squire ... 77 
 Rainev. Chalk . . .161 
 Rawlins v. M'Mahon . . 38 
 Reeves v. Baker . 220 
 
 Rhodes v. Lord Mostyn . 161 
 
 Rickford V. Young . .110 
 
 Ritchie v. Humberstone . 333 
 
 Roberts v. Price . . . 303 
 Rock V. Matthews . . 234 
 
 Rochdale Canal Company v. 
 
 King . 133, 137, 138, 141 
 
 Rogers v. Jones ... 35 
 Roy V. Pennall . .150 
 
 Runnall v. Yarroll . .143 
 
 S. 
 
 Sale v. Kitson . . 252 
 
 Sanderson t. Dobson . 289 
 
 Saunders v. Walter . . 369 
 Savory v Barber . . . 250 
 Say V. Creed . .272 
 
 Sergison v. Beavan . .152 
 
 Sewell v. Ashley . 331 
 
 Sewell V. Godden . . . 22 
 Scargill v. Hurrey 113 
 
 Scawen v. Nicholson' ■ . 255 
 Shardlow v. Gaze . . . T25 
 Sherwood v. Vincent . 230 
 
 Sibbald v. Laurie ... 87 
 Silver v. Stein ... 36 
 
 Sims v. Helling . . .109 
 Smith V. Constant . . 115 
 
 Smith V. Edwards . .268 
 
 Smith V. The Swansea Dock 
 
 Company . r54, 176, 217, 244 
 Soltau V. De Held ' .151 
 
 South CoUingbam, Ex parte 
 
 Rector of . . . .350 
 
 Page 
 Spooner v Greville . . 110 
 
 Spurrell v. Spurrell . '1 
 
 Stacey v. Southey . .189 
 
 Staines v. Rudlin , .310 
 
 Stead V. Banks . . .306 
 Stinton v. Taylor . 27 
 
 Stone V. Davis ... 43 
 Stuart V. Lloyd . 46.197 
 
 Summerfield v. Pritchard . 142 
 Swallow V. Binns . . . 278 
 
 Tate V. Leithead ... 54 
 Thompson v. Teulon . 137 
 
 Thornhill v. Thomhill . 352, 377 
 Toon V. Cotterell . . .111 
 
 Turner v. Turner . 162 
 
 Vigurs V. Vigurs . 295 
 
 W. 
 
 Walker's Trust, In re . . 276 
 Ward V. Bassett . . 250 
 
 Ward V Cartwright . 58 
 
 Wayn v. Lewis ' . . . 307 
 Webb v. The Direct London and 
 
 Portsmouth Railway Company 299 
 Webster v. The South Eastern 
 
 Railway Company . 147 
 
 Whitmore v. Ryan . 24 
 
 Wigan V. Rowland 1 75, 2 1 4, 22 1 , 
 222 
 Wilkinson V. Stringer 122,219, 
 
 224 
 Willats V. Busby . 267 
 
 Williams V. Williams 168.174,191 
 
 V. Ouchterlony 
 
 . 54 
 
 Winch V. Williams 
 
 . 240 
 
 Windsor v. Cross . 
 
 . 299 
 
 Wing V. Harvey . 
 
 . 138 
 
 Wood V. Sutcliffe , 
 
 . 147 
 
 V. Logsden . 
 
 19 
 
 Woodford v. Woodford 
 
 . 110 
 
 Woodman v. Farley 
 
 . 121 
 
 Wormald v. De Lisle 
 
 12 
 
 Wright v.^ King 
 
 . 42, 46 
 
 V Vernon 
 
 12 
 
 Yeatman v. Mousley 
 
THE NEW PRACTICE 
 
 COURT OF CHANCERY. 
 
 CHAPTER I. 
 Section 1. 
 
 BILL. 
 
 Bill to be printed, written alterations in bill, when 
 toritten bill may be filed, claims always printed 
 before filed, defendant entitled to ten printed 
 copies, rate of charge per folio, endorsement on 
 bill or claim, stamp, whether double stamp, bill 
 by next friend, information at suit of relator, 
 frame of bill, certainty of allegation in bill or 
 claim, misjoinder. 
 
 By the provisions of the New Procedure Act, 
 15 & 16 Vict. c. 86, no bill can now be filed 
 unless previously printed, except in the three 
 cases specified in sect. 6, viz., where the object 
 is, to obtain an injunction, or a ne exeat, or to 
 
 B 
 
2 THE NEW CHANCERY PRACTICE. 
 
 make an infant a ward of Court.. In those 
 special cases a written engrossment may be filed, 
 but only upon the terms of filing a printed copy 
 within fourteen days; in default of which the 
 bill will be taken oflF the file, and the plaintiff 
 wUl have to pay the whole taxed costs of the 
 proceeding. 
 
 Printed The Ist sBctiou of the New Procedure Act, 
 
 15 & 16 Vict. c. 86, directs that the practice of 
 engrossing on parchment bills of complaint or 
 claims, and of filing such engrossment, is to be 
 discontinued, and the clerk of writs and records 
 is to receive and file a printed biU of complaint 
 or claim in lieu of an engrossment thereof. 
 
 In pica type By the Ist of the General Orders of the 7th 
 day of August, 1852, bills and claims are to be 
 printed on royal paper, quarto, in pica type 
 leaded, and the copy to be filed is to be inter- 
 leaved with paper of the same descrijifcion. 
 
 Written A sKght clerical error may be corrected in ink 
 
 S1.1 tCT* A.tl OH 3 
 
 in bill. after the bill is printed, and the biU may be filed 
 in that state. 
 reatman In Yeatman v. Mov^ley (a), the Christian 
 Momiey. uamcs of the plaintiff had been printed by mis- 
 take " Maria Constantia" instead of " Constantia 
 Maria," in the title of the bill. The Lords Jus- 
 tices were of opinion that it would not be 
 departing from the spirit of the act of Parliament 
 to allow the bill to be filed as altered, but they 
 (a) 2 De Oex, McN. & G. ; S. C. 16 Jur. 1004. 
 
BILL. i 
 
 did not wish to be understood as intending to 
 sanction the filing of a bill not wholly printed, 
 where the alteration was at all extensive or im- 
 portant, or where it was such as to interfere 
 with the legibility of the bill. 
 
 By the 6th section of the New Procedure Act, when 
 15 & 16 Vict. c. 86, the clerks of records and bin may 
 writs may receive and file a written copy of any 
 bill of complaint which prays a writ of injunction 
 or a writ of ne exeat regno, or is filed for the 
 purpose of making an infant a ward of Court; 
 but the plaintiff or his solicitor must give a 
 personal undertaking to file a printed copy of 
 such bill within fourteen days. 
 
 This clause of the act, as well as the 2nd and cuims 
 3rd of the General Orders of the 7th of August, ponied 
 1852, applies only to biUs and not to claims. In gfja^ 
 no case, therefore, can a claim be filed which is 
 not printed. 
 
 In the second of the cases specified in this Ne exeat. 
 section, viz., that of a bill seeking a writ of 
 ne exeat, the plaintiff will of course obtain the 
 order for issuing the writ upon an ex parte appli- 
 cation supported by the usual evidence, and the 
 service of the copy of the writ, with the pro- 
 duction of the original writ, should then accom- 
 pany the service of the copy of the biU. See 
 Bamed v. Laing^a), as to the bill containing the 
 prayer for the writ. 
 
 (a) 13 Sim. 255. 
 B 2 
 
4 THE NEW CHANCERY PRACTICE. 
 
 Neither the writ of injunction, nor the writ of 
 ne exeat could be obtained by claim under the 
 former practice. It required a bill, and the 6th 
 section relates only to bills. 
 
 There is no provision in the act, or in the 
 
 General Orders for filing a written copy of a claim 
 
 in any case. 
 
 Delivery of By the 7th scction of the New Procedure Act, 
 
 copiel 15 & 16 Vict. c. 86, the plaintiff in any suit 
 
 will be bound to deliver to the defendant or his 
 
 solicitor, upon application for the same, such a 
 
 number of printed copies of the bill or claim as 
 
 he shall have occasion for, upon being paid for 
 
 the same at such rate as may be prescribed 
 
 by any general order of the Lord Chancellor 
 
 in that behalf. 
 
 No costs By the 2nd of the General Orders of the 7th 
 
 of written " 
 
 copies. of August, 1852, no costs are to be allowed as 
 between party and party, or as between solici- 
 tor and client, for any written bill or written 
 copy of a bill filed under the 15 & 16 Vict. c. 86, 
 s. 6, or for any written copy thereof served upon 
 any defendant thereto, or any written brief of 
 such bill, unless the Court shall in disposing 
 of the costs of the cause direct the allowance 
 thereof. 
 Written The objcct of this Order seems to be to put a 
 
 where case chcck as far as possible on the practice of filing 
 "'^™*' written bills even in the cases specified in sec. 6 
 of the act, unless they are of such urgency as 
 
BILL. 
 
 absolutely to require it. The plaintiif will get 
 no costs of the written bill, or the written copies 
 served, or the written brief bill, unless they are 
 specially allowed by the Court at the hearing. 
 This Order does not mention claims, because 
 sec. 6 of the act contemplates only bills, and the 
 record and writ clerk would not in any case be at 
 liberty to file a claim unless previously printed. 
 
 The 3rd of th^ General Orders of the 7th orwhen 
 
 taken off 
 
 August, 1852, directs that the clerks of records the file. 
 and Avrits, shall at the expiration of fourteen days 
 from the filing of any written bill or written copy 
 of a bill, take off the files of the Court without 
 further order the bill or copy so filed, unless a 
 printed copy thereof shall in the meantime have 
 been filed, and the plaintiff in the suit or his 
 solicitor who shall personally have undertaken to 
 file such printed copy, shall pay to the defendant 
 aU the costs incurred b)' him in the suit, such 
 costs to be taxed by the taxing master without 
 further order, upon production to him of the cer- 
 tificate of the clerk of records and writs, that a 
 printed copy of the bill has not been filed pur- 
 suant to such undertaking, and to be recoverable 
 in like manner as costs ordered to be paid by a 
 party in a suit to another party in a suit are now 
 recoverable. 
 
 It is presumed that the clerk of records and By clerk 
 
 or rccoros 
 
 writs will not proceed to take the bill off the file and wiiis. 
 
6 THE NEW CHANCERY PBACTICB. 
 
 ex mero moiu, but only at the instance of some or 
 one of the defendants to the suit. 
 Without The true construction of the order would seem 
 
 any order i . • /< • 
 
 of Court, to be that any defendant, upon merely satistymg 
 the record and writ clerk that the fourteen days 
 have expired, may require the bill to be at once 
 taken off the file, without producing any further 
 order of the Court for the purpose. Any other 
 construction of the order would throw upon the 
 clerk of records and writs, "the duty of watching 
 the~ progress of the proceeding, which would 
 hardly be compatible with the various other 
 duties of his office, and which seems more 
 properly to belong to the solicitor in the cause. 
 The defendant's solicitor should not allow the 
 written bill to remain on the files of the Court 
 after the fourteen days expire, otherwise his own 
 extra costs occasioned by written, instead of 
 printed, briefs of the bill at the hearing might 
 possibly be disallowed. At all events it would 
 be prudent to attend the record and writ clerk 
 for the purpose of seeing that the biU is actually 
 taken off the file. 
 Defendant By the sevcuth section of the New Procedure 
 mandco- Act, 15 & 16 Vict. c. 86, the plaintiff in any 
 suit will be bound to deliver to the defendant or 
 his solicitor, upon application for the same, such 
 a number of printed copies of the bill or claim as 
 he shall have occasion for, upon being paid for 
 
 pies, 
 
BILL. '7 
 
 the same at such rate as may be prescribed by 
 any general order of the Lord Chancellor in that 
 behalf. 
 
 The 5th of the General Orders of the 7th of Rate of 
 
 charge per 
 
 August, 1852, directs that the payment to be folio. 
 made by the defendant to the plaintiff for printed 
 copies of the biU or claim shall be at the rate of 
 one halfpenny per folio. 
 
 By the 6th of ihe General Orders of the 7th of Oniy enti- 
 August, 1852, no defendant shall be at liberty to copies. 
 demand from the plaintiff more than ten printed 
 copies of his bill or claim. 
 
 It seems to be unnecessary that the endorse- Endorse- 
 ment on a bill or claim should be printed, but "lur"" 
 whether it is printed or not, the endorsement "*""' 
 may be altered before the service is made, where 
 the time for appearance has been enlarged or 
 varied by the order of the Court. 
 
 The Vice Chancellor Turner, in deciding this ^^y ''« 
 
 ' " altered. 
 
 point, observed that the act only directs that the 
 
 defendant shall be served with a printed bill of 
 
 complaint or claim, with an endorsement thereon, 
 
 in the form or to the effect set out in the schedule 
 
 to the act, " with such variations as circumstances chatjieid 
 
 may require." Chatjieid v. £erchtoldt(a). senhtom. 
 
 So where the plaintiff obtains an order for 
 effecting service abroad, he may alter the indorse- 
 ment on the copies to be served, and introduce 
 
 (a) 9 Hare, Appendix, p. xxviii. 
 
8 THE NEW CHANCERY PRACTICE. 
 
 Baynes v. the datc which the Court appoints. Baynes v. 
 Ridge (a). 
 
 Stamp. Where a written bill has been filed under the 
 
 6th section with a proper stamp, the printed copy 
 filed afterwards need not be stamped. This was 
 held by the Lords Justices in Jones v. Batten (b), 
 a written bill for an injunction had been filed 
 with a proper stamp. On the solicitor attending 
 within the fourteen days to file the printed copy, 
 the record and writ clerk declined to receive it 
 without a stamp. 
 
 Janes V The Qucstion turned on the 12th section of the 
 
 Batten. ^ , 
 
 Suitors in Chancery Relief Act, 15 & 16 Vict. 
 c. 87, and the order of October 25, 1852, Art. 6. 
 
 Their Lordships held that the two copies formed 
 but one bill, and that the second or printed copy 
 was not a document required by the order to be 
 impressed with a stamp. 
 
 Both copies ought to remain in the office. 
 Next By the 11th section of the New Procedure Act, 
 
 friend. •' ^ ' ' 
 
 15 & 16 Vict. c. 86, before the name of any 
 person can be used in any suit as next friend of 
 any infant, married woman, or other party, such 
 person is to sign a written authority to the 
 solicitor for that purpose, and such authority is 
 Relator, to bc filed with the bill or claim. The same 
 rule applies to an information at the suit of a 
 relator. 
 
 (a) 9 Hare, Appendix, p. xxvii. 
 
 (*) 2 De a., Mc N. & G. Ill ; S. C. 16 Jiir. 1059. 
 
BILL. 
 
 The written authority is only required by this Written 
 clause to be signed and filed, where the suit is ™'"""^'"- 
 instituted by a next friend, or by a relator; but 
 it would be well if solicitors were in no case to 
 file a bill or claim for any client, without such a 
 written authority. The next friend or relator 
 is only the instrumental party, in bringing the 
 matter before the Court, having in general no 
 personal interest in the proceedings. It has hap- 
 pened perhaps more frequently in cases of that 
 kind than in any other, that the proceedings have 
 been instituted without due authority. 
 
 The authority might before this act be proved 
 by parol, without writing, as it may still, except 
 in the cases there specified ; but it always creates 
 difficulties where the authority is disputed ; and 
 where there is nothing but assertion against 
 assertion, the Court leans strongly against the 
 attorney, and would even go so far as to hold in 
 such a case, that the attorney must abide the 
 consequences of having the bill dismissed with 
 costs to be paid by him, because it was his own 
 folly or neglect not to secure himself by having 
 proper evidence in writing. 
 
 Where it is a married woman's suit, and she is 
 not an infant, the next friend would also do well 
 to have written evidence of her consent, as he 
 would be bound to prove it if disputed. 
 
 See a late case of Evans v. Kinsey (a) on this Hvamv. 
 
 Kin^fy. 
 
 («) 21 L. T. 178. 
 
10 THE NEW CHANCERY PRACTICE. 
 
 subject. The order there was under special cir- 
 cumstances, that the solicitor should neither 
 receive nor pay costs of a motion to strike out 
 the name of a plaintiff. 
 Frame of Bv the 10th scction of the New Procedure Act, 
 
 bill. ■' 
 
 15 & 16 Vict. c. 86, every bill of complaint is to 
 contain as concisely as may be a narrative of 
 the material facts, matters and circumstances on 
 which the plaintiff relies, such narrative being 
 divided into paragraphs numbered consecutively, 
 and each paragraph containing as nearly as may 
 be a separate and distinct statement or allegation; 
 and it is to pray specifically for the relief which 
 the plaiiitiff may conceive himself entitled to, and 
 also for general relief, but the bill is not to con- 
 tain any interrogatories for the examination of 
 the defendant. 
 Orders of A great step was made in the right direction 
 1841. with a view to diminishing the length of plead- 
 ings by the 16th and 17th of the General Orders 
 of the 26th August, 1841 ; the office copy of the 
 bill taken by each defendant under those Orders 
 containing no interrogatories except those which 
 such defendant was by a note at the foot of the 
 bill required to answer, 
 interroga. The intcrrogatorics are now wholly banished 
 
 tories not r i t • 
 
 inserted in from the bill, and the filing of them forms a 
 distinct proceeding in the nature of an examina- 
 tion of the defendant, being of course filed only 
 where discovery is wanted. 
 
BILL. 1 1 
 
 With respect to the introduction of greater Concise- 
 ^conciseness in the general frame of bills, if any pleadings. 
 change follows from the clause in this respect, it 
 will be rather in the practice than in the recog- 
 nised rules of pleading ; for according to one of 
 Lord Clarendon's Orders, after providing that no 
 counsellor do put his hand to any bill, answer, 
 or other pleading, unless it be drawn or perused 
 by him in the paper draft, " Counsel are also 
 to take care that the same be not stuffed with 
 repetition of deeds, writings, or records in hcec 
 verba, but the effect and substance of so much of 
 them only as is pertinent and material to set 
 down, and that in brief terms without long and 
 needless traverses of points not traversable, 
 tautologies, multiplication of words, or other 
 impertinencies', occasioning needless prolixity; 
 to the end that the ancient brevity and succinct- 
 ness in bills and other pleadings may be restored 
 and observed." 
 
 With respect to the distinctness of the state- Distinct- 
 ments or allegations to be contained in the bill, statement. 
 all the material facts, with the circumstances as 
 to the time, place, and manner, where they are 
 material, must be plainly but succinctly alleged 
 in the bUl, that the defendant may know the 
 exact nature of the case he has to meet. The 
 10th section indicates that the Court would still 
 be inclined to allow a general demurrer to a bill 
 on the ground of the vagueness and uncertainty 
 
of aver. 
 
 Vernon, 
 
 12 THE NEW CHANCEEY PRACTICE. 
 
 of its statements, as was done in Wormald v. De 
 Lisle (a), Balk v. Margrave (b), and other cases. 
 
 Certainty There is nothing to shew that the Court would 
 now require less of certainty in the averment of 
 the title upon which the bill is founded, or exact 
 a less degree of precision in the pleadings, than 
 it did formerly, but rather the contrary; though 
 perhaps less weight would now be given to 
 objections founded on mere technicalities. 
 
 »;r^A<v. That the same certainty in the averment of 
 the title is requisite in bills now as under the 
 old practice is shewn by the case of Wright v. 
 Vernon (c). The bill alleged in support of the 
 plaintiff's pedigree that one Atherton Watson 
 died in May, 1851, leaving his grand nephew 
 W. L. Woodford and his niece Charlotte H. 
 Wright, the plaintiff's late wife, his coheirs and 
 coparceners. Upon a motion for production of 
 documents, the question in the suit being merely 
 one of pedigree, it was objected that the plaintiff 
 had not alleged his pedigree with sufficient 
 certainty. The Vice Chancellor Kindersley said : 
 " If the plaintiff had made a mere loose statement, 
 as that A. left B. his heir, that would not be a 
 reasonable certainty of allegation ; or if he had 
 said A. left B. his cousin and heir, that, from the 
 generality of the word cousin, would not be a 
 
 (a) 3 Beav. 18. 
 
 (b) 3 Beav. 284. 
 
 (c) 1 Drewry, 347. 
 
BILL. 3 3 
 
 sufficiently certain allegation. But he alleges 
 that Atherton Watson left his niece and his grand 
 nephew coheirs, and I think those terms designate 
 the relationship with sufficient certainty." 
 
 It may be inferred from these observations, 
 that if there had been any vagueness in the 
 averment of the title, the motion for production 
 would have been refused. 
 
 So in Boulding v. Boulding {a), where a claim souUingv. 
 for administration was filed by a residuary legatee, "" '"' 
 alleging that A. B. was the executrix of the tes- 
 tator, and that the defendant C. D. was the ex- 
 ecutor of A. B., but without averring that the 
 defendant C. D. was the legal personal repre= 
 sentative of the testator. It was urged that this 
 was in the form given in No. 3, schedule (A), 
 Orders of the 22nd of April, 1850, and it 
 appeared in fact that the defendant C. D. had 
 not proved the will of A. B., but had entered 
 into possession of her property, part of which 
 was assets of the original testator. The Vice 
 Chancellor Stuart, after noticing the want of 
 a proper averment, refused leave to amend, 
 and to allow the claim to stand over for that 
 purpose until the authorities at the Stamp 
 Office had compelled the defendant to prove the 
 will of A. B., as they had said they would do, 
 and he dismissed the claim with costs. 
 
 The 49th section of the New Procedure Act, Misjoinder. 
 
 (») 16 Jut. 1154. 
 
14 THE NEW CHANCERY PRACTICE. 
 
 15 & 16 Vict. c. 86, provides that no suit shall 
 in future be dismissed by reason of the misjoinder 
 of persons as plaintiffs therein, but wherever it 
 shall appear to the Court that notwithstanding 
 the conflict of interest in the co-plaintiffs, or the 
 want of interest in some of the plaintiffs, or the 
 existence of some ground of defence affecting 
 some or one of the plaintiffs, the plaintiffs, or 
 some or one of them are or is entitled to relief, 
 the Court will now have power to grant such 
 relief, and to modify its decree according to the 
 special circumstances of the case, and for that 
 purpose to direct such amendments, if any, as 
 may be necessary, and at the hearing before such 
 amendments are made to treat any one or more 
 of the plaintiffs, as if he or they was or were a 
 defendant or defendants in the suit, and the 
 remaining or other plaintiff or plaintiffs was or 
 were the only plaintiff or plaintiffs on the record; 
 and where there is a misjoinder of plaintiffs, and 
 the plaintiff having an interest shaU have died, 
 leaving a plaintiff on the record without an inte- 
 rest, the Court may now at the hearing of the 
 cause, order the cause to stand revived as may 
 appear just, and proceed to a decision of the 
 cause, and give such directions as to costs or 
 otherwise as may appear just and expedient. 
 Bill for. Under the old practice^ where one plaintiff had 
 
 merly dis- • , i i 
 
 missed for uo mtercst, or an adverse interest to his co- 
 misjoinder. p^g^^jj^j^g^ jj. ^^g ^ misjoinder, and the Court 
 
BILL. 15 
 
 would make no decree in a suit so frE^med, and 
 sometimes dismissed the bill. 
 
 The Court being now able to administer partial Present 
 
 11/. practice. 
 
 relief, without having all parties interested before 
 it, and without making a complete decree, as to 
 the interests of all ; the misjoinder of any plain- 
 tiff having a distinct or conflicting interest, or no 
 interest, may be treated as surplusage, subject to 
 any question as to his liability to costs ; or if con- 
 venience requires his interest to be dealt with, he 
 may have leave to appear by counsel and support 
 that interest, even without any alteration being 
 first made in the record j being treated at the 
 hearing as if he were a defendant instead of a 
 plaintiff. Perhaps, however, it would occasion 
 but little more expense or delay, and would in 
 general be more advisable, except in simple and 
 clear cases where the interests of the several 
 parties admit of no doubt, that the amendment 
 should be first actually made. The latter part 
 of the 49th section carries the principle of this 
 alteration still further, in allowing a suit to be 
 revived, where the only plaintiff remaining on 
 the record, is one who was improperly made a 
 * plaintiff as having no interest. 
 
 See Sir Thomas Plumer's observations on the 
 misjoinder of an heir and devisee as co-plaintiffs 
 in his elaborate judgment in Cholmondeley v. 
 Clinton (a), where, however, the bill was dis- 
 missed on other grounds. 
 
 (a) 2 Jac. & W. 135. 
 
16 THE NEW CHANCERY PRACTICE. 
 
 Clements V. In Ckments V. Bowes (a), which was. a suit 
 
 Bowes. . ■' 
 
 instituted by one shareholder of a railway com- 
 pany on behalf of himself and all the other share- 
 holders against the directors of the company, 
 upon the objection being taken that some of the 
 shareholders, on whose behalf the plaintiff sued, 
 had interests conflicting with the plaintiff, and 
 that there was therefore a misjoinder. The Vice 
 Chancellor Kindersley said, that the objection 
 was disposed of by the 49th section of the New 
 Procedure Act, 15 & 16 Vict. c. 86. His Honor 
 observed, that if that section applied, as it clearly 
 did, where plaintiffs were named on the record, 
 a fortiori it would reach a case like this, where 
 the Court might probably be called on to exercise 
 its discretion between conflicting interests. Those 
 shareholders, whose interests appeared- to be con- 
 flicting, must be served under the 49th section of 
 the act. 
 
 (a) 21 L. T. 278. 
 
BILL. 17 
 
 Section 2. 
 
 Service of bill, how made, when affidavit of service 
 dispensed with, appearance, service of notice of 
 motion hefore appearance, rules as to subpoena 
 and appearance, ^entering appearance for de- 
 fendant, where defendant an infant or of unsound 
 mind, where party out of the jurisdiction, rules 
 for computation of time, consequences of not ap- 
 pearing, substituted service, service of amended 
 bill^ on defendants solicitor, on defendant per- 
 sonally, guardian ad litem, how appointed, re- 
 presentative for the purposes of the suit, when 
 appointed, when upon notice, when ex parte, not 
 where deceased persons estate is the subject of 
 administration, administrator ad litem, repre- 
 sentative not appointed where probate in dispute, 
 nor for obtaining money out of Court. 
 
 By the 2nd section of the New Procedure Act, writ of 
 15 & 16 Vict. c. 86, the writ of subpcena to ap- and writ of 
 pear to and answer a bill, and the writ of sum- abolished. 
 mons upon a claim are respectively abolished. 
 
 By the 3rd section of the New Procedure Act, Printed 
 in lieu of serving the defendant to a bill with a writ claim to 
 of subpoena to appear to and answer the same, with en. ' 
 and in lieu of serving the defendant to a claim, and proper 
 with a writ of summons upon such claim, accord- ^"""''' 
 ing to the former practice ; the defendant is to be 
 
 c 
 
18 THE NEW CHANCERY PEACTICE. 
 
 served with a printed bill or claim, with an en- 
 dorsement thereon, in the form or to the effect 
 set out in the schedule to the act, with such 
 variations as circumstances may require: such 
 printed bill of complaint or claim so to be served 
 being previously stamped with a proper stamp 
 by one of the clerks of records and writs, indi- 
 cating the filing of such bill or claim, and the 
 date of the filing thereof. 
 Effect of By the 4th section of the New Procedure Act, 
 
 such ser- ni**ii-ii 
 
 vice. 15 & 16 Vict. c. 86, the filing of the prmted bill 
 or claim is to have the same effect as the filing of 
 a bill of complaint or claim, and the issuing of a 
 subpoena or writ of summons thereon respectively 
 had under the former practice ; and the service 
 upon the defendant of a printed bill or claim so 
 filed, with such endorsement thereon so stamped, 
 as aforesaid, will in future have the same effect 
 as the service on him of a writ of subpoena 
 or writ of summons respectively had under the 
 former practice, and will entitle the plaintiff to 
 the same remedies for default of appearance, and 
 otherwise as he was before entitled to, upon the 
 service of a subpoena to appear to and answer a 
 bill of complaint, or of a writ of summons upon 
 a claim. 
 
 Mode of By the 6th section of the New Procedure Act. 
 
 service. •' -..««, 
 
 15 & 16 Vict. c. 86, the service of a printed copy 
 of a bill or claim is to be effected in the same 
 manner as service of a writ of subpoena to appear 
 
BILL. 19 
 
 and answer under the old practice, except only that 
 it will not be necessary to produce the original 
 bill or claim which will be on the files of the Court. 
 
 An affidavit of service of the copy of a bill or when affi- 
 claim will be dispensed with even in the case service 
 
 of an infant defendant, where the infant has vfUh, 
 appeared to the suit ; and the Court in such a case 
 upon production of the usual certificate of ap- 
 pearance, and an affidavit of service of the notice 
 of motion upon the person with whom the infant 
 resides, will make an order .for the appointment 
 of a guardian ad litem. Woody. Logsden. {a) In 
 this'^ase the writ of summons had been served, 
 and not the printed copy of the claim itself as 
 would be the present practice. 
 
 So, where on a cause being called on the plain- 
 tiff does not appear, whether it is instituted by 
 bill or claim, the suit will be dismissed without re- 
 quiring an affidavit of service of the copy, bill or 
 claim. See Charlton v. Allen (b), where a claim 
 was dismissed on this ground without requiring an 
 affidavit of service of the writ of summons, which 
 was the mode of service then in use, but which 
 writ is now abolished. 
 
 In injunction and other pressing cases the f°^ll^^ 
 Court will give leave to serve notice of motion before ap- 
 
 ° . pearance. 
 
 before appearance. But this d.oes not also in- 
 clude leave to serve short notice of motion. 
 
 (a) 9 Hare, Appendix, p. xxvi. ; S. C. 22 L. J., (s. s.) 257. 
 . (J) 2Md. p. IxTii. 
 
 C 2 
 
20 THE NEW CHANCERY FRACTICE. 
 
 Where short notice is given without the special 
 leave of the Court it is irregular ; the Court will 
 not however order the party so moving to pay- 
 costs, unless any additional costs have been occa- 
 sioned to the defendant by the irregularity. 
 Newton v. Charlton, (a) 
 
 Kuiesas The following rules with respect to the sub- 
 
 to sub- ° , ^ 
 
 pcenaand poena and appearance, are laid down by the 22nd 
 
 ance. and subsequcnt General Orders of the 8th of May 
 
 1845. 
 to" appear* XXII. SubpcBnas to appear or to appear and 
 wtthin"'''* answer which are served within the jurisdiction 
 eight days, ^f ^]jg Co^rt, are to be made returnable within 
 
 eight days after the service thereof. 
 
 Hmh time XXIII. Subpoenas to appear or to appear and 
 
 InceThere ^"s^^J" ^hich are served out of the jurisdiction 
 
 seneTo'ut °^ *^^ Court, are to be made returnable at such 
 
 rfjurisdio. time after the service thereof, as the Court by 
 
 special order may direct, and if an answer be 
 
 required, each such subpoena is to specify the 
 
 time after service, within which the defendant is 
 
 required to answer. 
 
 Sep'Se'5 ^^^^- ^ ^"*s of subpcena in this Court 
 
 by solicitor, are to be prepared by the solicitor of the party 
 
 requiring the same, and the seal for sealing the 
 
 same is to be marked or inscribed with the words 
 
 Form of. « Subpcena Office, Chancery," and such writs are 
 
 to be in the terms mentioned at the foot of the 
 
 Orders of the 8th of May 1845, or as near as 
 
 (a) 10 Hare, Appendix, p. xxxi. 
 
BILL. 21 
 
 may be, mth such alterations and variations as 
 circumstances may require, (a) 
 
 XXY. In the interval between the suing out Before ser- 
 and service of any subpoena, the party suing out pmna mly 
 
 rt . " 1 1 /.be amended 
 
 the same may correct any error m the names of asto names. 
 parties or witnesses, and may have the writ re- 
 sealed, upon payment to the clerk of the sub- 
 poena office of a fee of one shilling, and at the 
 same time leaving -a corrected praecipe of such 
 subpoena marked, altered and re-sealed, and signed 
 with the name and address of the solicitor, or 
 solicitors suing out the same. 
 
 XXVI. Service upon a defendant's solicitor of s«"'"=^ "^ 
 
 • ^ subpoena 
 
 a subpoena to answer an amended bill or to hear '<» ^"^w^' 
 
 ^ amended 
 
 judgment, is to be deemed good service upon the ^iii or to 
 party. "™*- 
 
 ' XXVII. After the allowance of or submission Answer 
 
 ■_ . being insuf- 
 
 to exceptions to answer for insufficiency, a de- ficient, 
 
 .,.,.. J defendant 
 
 fendant is to answer withm the time appomted, to answer 
 
 . , without 
 
 without being served with any subpoena to make further 
 
 subpoena. 
 
 a better answer. 
 
 By the 29th General Order of the 8th of May Entering 
 1845, if any defendant, not appearing to be an for defend- 
 infant or a person of weak or unsound mind 
 unable of himself to defend the suit, is when 
 within the jurisdiction of the Court duly served 
 with a subpoena to appear to or to appear to and 
 answer a bill, and refuses or neglects to appear 
 thereto within eight days after such service, the 
 plaintiff may, after the expiration of such eight 
 (a) See infra, Appendix of Forms. 
 
22 THE NEW CHANCERY PEACTICE. 
 
 days, and within three weeks from the tiine of 
 such service, apply to the record and writ clerk 
 to enter an appearance for such defendant ; and, 
 no appearance having been entered, the record 
 and writ clerk is to enter such appearance accord- 
 ingly, upon being satisfied by affidavit that the 
 subpoena was duly served upon such defendant 
 personally or at his dwelling-house or usual place 
 of abode; and after the expiration of such three 
 weeks, or after the time allowed to such de- 
 fendant for appearing has expired, in any case in 
 which the record and writ clerk is not hereby re- 
 quired to enter such appearance, the plaintiff may 
 apply to the Court for leave to enter such ap- 
 pearance for such defendant; and the Court, being 
 satisfied that the subpoena was duly served, and 
 that no appearance has been entered for such 
 defendant, may, if it so thinks fit, order the same 
 accordingly, (a) 
 Not being By the 30th of the same Orders, any appearance 
 
 an infant or '' n -t -i • ' pn f 
 
 of unsound entered at the mstance of the plamtiff for a de- 
 fendant who, at the time of the entry thereof, is 
 an infant or a person of weak or unsound mind 
 unable of himself to defend the suit, is irregular 
 and of no validity. 
 Appoint- The 32nd General Order of the 8th of May 
 guMdran 1845, provides that if, upon default made by a 
 defendant in not appearing to or not answering a 
 bill, it appears to the Court that such defendant 
 is an infant, or a person of weak or unsound 
 (as) Bewell T. Godden, 1 De Gr. & 8m. 126. 
 
 ad litem. 
 
BILL. 23 
 
 mind not so found by inquisition, so that he is 
 unable of himself to defend the suit, the Court 
 may, upon the application of the plaintiff, order 
 that one of the solicitors of the Court be assigned 
 guardian of such defendant, by whom he may 
 appear to and answer or may answer the bill and 
 defend the suit. 
 
 But no such order is to be made, unless it 
 appears to the Court on the hearing of such 
 application, that the subpoena to appear to and 
 answer the bill was duly served, and that notice 
 of such application was, after the expiration of 
 the time allowed for appearing to or for answer- 
 ing the bUl, and at least six days before the 
 hearing of the application, served upon or left at 
 the dwelling-house of the person with whom or 
 under whose care such defendant was at the time 
 of serving such subpoena, and (in the case of such 
 defendant being an infant not residing with or 
 under the care of his father or guardian) that 
 notice of such application was also served upon 
 or left at the dwelling-house of the father or 
 guardian of such infant, unless the Court at the 
 time of hearing such application thinks fit to 
 dispense with such last-mentioned service. 
 
 The 33rd General Order of the 8th of May where 
 
 T /■ 1 • defendant 
 
 1845, provides that where a deiendant m any out of the 
 suit is out of the jurisdiction of the Court, tion. 
 1. The Court, upon application supported by Service 
 
 , j^ . abroad. 
 
 such evidence as shall satisfy the Court m 
 what place or country such defendant is or 
 
24 THE NEW CHANCERY PRACTICE. 
 
 may probably be found, may order that the 
 subpoena to appear to or to appear to and 
 answer the bill, may be served on such de- 
 fendant in such place or country or within 
 such limits as the Court thinks fit to 
 direct, (a) 
 
 2. Such order is to limit a time (dependii^ 
 on the place or country within which the 
 subpoena is to be served) after service of the 
 subpoena, within which such defendant is to 
 appear to the bill, and also (if an answer be 
 required) a time within which such defend- 
 ant is to plead, answer, or demur, or obtain 
 from the Court further time to make his 
 defence to the bill. 
 
 3. At the time when such subpoena shall be 
 served, the plaintiff is also to cause such 
 defendant to be served with a copy of the 
 bill, and a copy of the order giving the 
 plaintiff leave to serve the subpoena. 
 
 4. And if upon the expiration of the time for 
 appearing, it appears to the satisfaction of 
 the Court, that such defendant was duly 
 served with the subpoena and with a copy 
 of the bill and a copy of the order, the 
 Court may, upon the application of the 
 plaintiff, order an appearance to be entered 
 for such defendant. 
 
 The 34th of the General Orders of the 8th of 
 
 {a) WhUmoreM Byam,, 4 Hare, 612; Blenkimm> v 
 Blenkinsopp, 2 Phil. 1. ^^ 
 
BILL. 25 
 
 -May 1845, provides that affidavits filed for the ACBdavit 
 
 n . . , • n 1 of service 
 
 purpose ot proving the service of a subpoena of sub- 
 upon any defendant are to state when, where, and ^'*"*" 
 how such subpoena was served, and by whom 
 such service was effected. 
 
 By the 35th General Order of the 8th of Costs of 
 
 entering 
 
 May 1845, the plaintiff, having duly caused an appear- 
 appearance to be entered for any defendant, is 
 entitled, as against" the same defendant, to the 
 costs of and incident to entering such appear- 
 ance, whatever may be the event of the suit; 
 and such costs are to be added to any costs 
 which the plaintiff may be entitled to receive 
 from such defendant, or set off against any costs 
 which he may be ordered to pay to such defend- 
 ant; but payment thereof is not to be otherwise 
 enforced without the leave of the Court. 
 
 By the 36th of the same Orders, a defendant, Defendant 
 
 ■' ' may after- 
 
 notwithstanding that an appearance may have wards en- 
 been entered for him by the plaintiff, may after- ance for 
 
 !/• ■ himself. 
 
 wards enter an appearance for himself in the 
 ordinary way; but such appearance by such de- 
 fendant is not to affect any proceeding duly 
 taken, or any right acquired by the plaintiff 
 under or after the appearance entered by him, 
 or prejudice the plaintiff's right to be allowed 
 the costs of the first appearance. 
 
 By the 37th of the same Orders, no party is Appear- 
 
 J J 1. 1 ance to be 
 
 to enter either a common or special appearance entered 
 under the 26th or 27th of the Orders of the what time. 
 26th of August 1841, after the expiration of 
 
26 THE NEW CHANCEBY PRACTICE. 
 
 twelve days from the service of the copy of the 
 bill, without first obtaining an order of the Court 
 for that purpose, such order to be obtained on 
 notice to the plaintiff, and to be granted, if the 
 Court thinks fit, upon such terms as are just; 
 and any party so entering such common or 
 special appearance is bound by all the proceed- 
 ings in the cause prior to such appearance being 
 entered, unless the Court otherwise directs, (a) 
 
 The following rules, with respect to the com- 
 putation of time, are laid down by the General 
 Orders of the 8th May 1845. 
 Rules as to XI. Whcu any limited time from or after any 
 
 computa- •' _ 
 
 tion of date or event is appointed or allowed for doing, 
 any act or taking any proceeding, the computa- 
 tion of such limited time is not to include the day 
 of such date or of the happening of such event, 
 but is to commence at the beginning of the next 
 following day; and the act or proceeding is to be 
 done or taken at the latest on the last day of 
 such limited time according to such computation. 
 
 Lunar XJI. Whcu the time for doing any act or 
 
 months, a j 
 
 taking any proceeding is limited by months, not 
 expressed to be calendar months, such time is to 
 be computed by lunar months of twenty-eight 
 days each. (5) 
 
 (a) The practice of serving formal parties witt a copy of 
 the bill or claim under the General Orders of August 1841, 
 is now, it is presumed, virtually, though not in terms, aho- 
 lished. See Eeport of the Chancery Commissioners on this 
 point, p. 18. 
 
 (6) Hemin^ v. Dingwall, 2 Phil. 213. 
 
BELL. 27 
 
 XIII. When, the time for doing any act or when 
 taking any proceeding expires on a Sunday or piresona 
 other day on which the offices are closed, and by 
 reason thereof such act or proceeding cannot be 
 
 done or taken on that day, such act or proceeding 
 is, so far as regards the time of doing or taking 
 the same, to be held to be duly done or taken, if 
 done or taken on the day on which the offices 
 shall next open. 
 
 XIV. The times of vacation are not to be Times of. 
 
 vacation 
 
 reckoned in the computation of the times ap- no""''!, 
 
 r c reckoned. 
 
 pointed or allowed for the following purposes; (a) 
 
 1. Amending or obtaining orders for leave to For what 
 
 purposes. 
 
 amend bills. 
 
 2. Setting down pleas, demurrers, or objections 
 for want of parties. 
 
 3. Filing replications, or setting down causes 
 under the directions of Article 41 of Order 
 XVI, (b) 
 
 XV. The day on which an order that the ^VX'"^ 
 plaintiff do give security for costs is served, and ggg^^tyf^ 
 the time thenceforward until and including the '=°**=- 
 day on which such 'security is given, is not to be 
 reckoned in the computation of time allowed a 
 defendant to plead, answer, or demur. 
 
 Art, 1 of the 16th General Order of the 8th f^llf^^^ 
 May 1845, provides that the service of any sub- ">*''''' 
 
 (a) The times of official attendance and of vacations still 
 remain, as regulated ty the 5th and following Orders of the 
 8th of May 1845. 
 
 (S) Stinton v. Ihylor, 4 Hare, 611. 
 
28 THE NEW CHANCERY PRACTICE. 
 
 twelve poena, except a subpoena for costs, is to be of no 
 the teste. Validity if not made within twelve weeks after 
 
 the teste of the writ. 
 Defendant ^^j 3 provides that if a defendant be served 
 
 to appear Jr 
 
 ri''ht"da s ^^*^ ^ subpoena to appear to or to appear to and 
 answer a bill, he is to appear thereto within eight 
 days after the service of such subpoena. 
 
 If he does not, he becomes subject to the fol- 
 lowing liabilities : — 
 Conse- 1. An attachment may be issued against 
 
 quences , 
 
 of not ap- him. 
 
 und""^' 2. An appearance may be entered for him 
 
 May ^845. on the application of the plaintiff. 
 
 Art. 4 provides that in cases where a subpoena 
 has been served in the manner specified by Order 
 XXIX of the General Orders of May 1845, and 
 a defendant is in default for want of appearance, 
 the plaintiff may, within three weeks after such 
 service, cause an appearance to be entered for 
 such defendant by a record and writ clerk, with- 
 out special order. 
 
 Practice By the Order of Court of the 22nd of April 
 
 on claims ^ r,rn -v i- i* 
 
 the same 1850, art X, regulating the practice on claims, 
 writs of summons are, as to the number of de- 
 fendants to be named therein, as to the mode of 
 service thereof, and as to the time and mode of 
 entering appearances thereto, to be subject to the 
 same rules, as writs of subpoena to appear to 
 and answer bills. 
 
 The times allowed in procedure in suits com- 
 
 ; on bills. 
 
BILL. 2{) 
 
 menced by bill, are now regulated by Order XVI 
 of the General Orders of the 8th May 1845. 
 
 Under section 4 of the New Procedure Act Present 
 therefore, a defendant upon being served with a astoap- 
 copy, whether of a bill or claim, will be bound '""'""^" 
 to enter an appearance within eight days after 
 the service of such copy biU or claim ; otherwise 
 he will incur the following liabilities : — 
 
 1. An attachment may be issued against him. Gonae- 
 
 n A 1 1 n 1 • quences of 
 
 Z. An appearance may be entered for mm, on not ap- 
 the application of the plaintiflF. under pre- 
 
 Under the former practice, in the case of a bill, ifce.'" " 
 he would also have incurred a third penalty, viz., Not the 
 If the bill prayed for an injunction to stay pro- ii^uSn. 
 ceedings at law, the plaintiflF might obtain, as of 
 course, an order for the common injunction. But 
 this is now altered, section 58 of the act assimi- 
 lating the practice with respect to injunctions 
 for the stay of proceedings at law, to the practice 
 with respect to special injunctions, and requiring 
 therefore a substantive interlocutory application 
 supported by aflSdavit, either made ex parte, or 
 upon notice, according to the particular circum- 
 stances. Care must be taken in serving the 
 copy of the bill or claim, not to omit the in- 
 dorsement prescribed in the schedule to the 
 act ; otherwise, the service will be a nullity and 
 may be disregarded : as was the case under the 
 former practice, where the subpoena was served, 
 without the memorandum as to the consequences 
 of non-compliance, required by Order XIV of 
 
that sub- 
 pcena con- 
 tained the 
 proper 
 
 30 THE NEW CHANCERY PRACTICE- 
 
 the General Orders of the 26th of August 1841. 
 
 ASBdavit In moving for leave to enter an appearance for 
 a defendant, under Order VIII of those Orders, 
 it was necessary to support the application by an 
 
 dum auhe affidavit, that the copy of the subpcena which 
 
 ^°°*' had been served contained that memorandum; 
 Beeiham v. Berry, (a) And the same rules would 
 of course apply to the indorsement required on 
 the bill or claim now. 
 
 Serving The provisions of the 33rd and following Orders 
 
 parties out . . _ , . . 
 
 of thcju- of May 1845, for serving parties out of the juris- 
 nnder pre- diction of the Court will of course now apply to a 
 sen prac- g^^^j^g ^^ ^^^y. q£ ^-j^q bill or claim, in the same 
 
 way as they applied, to a service by Subpoena 
 under the former practice. 
 When or- With respect to substituting service, the Court 
 for sub- would no doubt direct substituted service of the 
 service. copy of a bill or claim, under precisely the same 
 circumstances, under which it has heretofore 
 directed substituted service of the subpcena^ or 
 writ of summons, ^. e. in every case, in which 
 there is a special agent duly constituted for the 
 purposes of the suit, or some channel through 
 which there is a moral ceirtainty that notice of the 
 bill or claim will actually reach the real de- 
 fendant. (6) The same caution as heretofore wiU 
 
 (a) 5 Beav. 41. 
 
 (J) So the Court would order substituted service where a 
 defendant absconds or secretes himself to avoid service within 
 the meaning of the act 4 & 5 "Wm. 4, c. 82, s. 2, and the 
 31st of the General Orders of May 1845, as interpreted by 
 Goj>e V. Bussell, 2 Phil. 404. So, too, where after answer 
 a defendant goes abroad or is not to be found, the Court 
 
BILIi. 31 
 
 of course still be used to guard against affecting 
 the rights of persons, who from having no actual 
 knowledge of the proceedings, may possibly be in 
 the situation of absent parties. 
 
 By the 9th of the General Orders of the 7th Service of 
 day of August 1852, a copy of an amended bill amended 
 or claim,, whether upon an amendment by a re- claim, 
 print," or by such alterations and additions as 
 mentioned in Order VII, is to be served upon the 
 defendant, or his solicitor, and such copy may be 
 partly printed and partly written if the amend- 
 ment is not made by a reprint, but in every case 
 the copy to be served is to be stamped with the 
 proper stamp by one of the clerks of records and 
 writs, indicating the filing of such amended bill 
 or claim, and the date of the filing thereof. 
 
 By the 10th of the General Orders of the 7th Service on 
 
 . , -, solicitor of 
 
 of August 1852, m aU cases where according to party suffi- 
 the former practice of the Court a subpcena to 
 appear to and answer an amended biU, might 
 be served upon the solicitor of a defendant, ser- 
 vice upon the defendant's solicitor of a copy of 
 an amended bill, whether wholly printed, or 
 partly printed and partly written, shall be good 
 service on the defendant. 
 Bv the 11th of the General Orders of the 7th Service 
 
 ■' where de- 
 
 dav of August 1852, where a defendant has fendant 
 
 J ° appears m 
 
 would in a proper case order Bubstituted semee oi a pill ot 
 revivor or stipplemeiit to be made on the solicitor in the 
 original suit, and the like in other cases. See Dan. Ch. Pr. 
 title " BuhstitwteA Service" 
 
32 THE NEW CHANCERY PBACTICE. 
 
 appeared in person to any bill, service at the 
 address for service of such defendant, of a copy 
 of an amended bill, whether wholly printed, or 
 partly printed and partly written, shall be good 
 service on the defendftnt- 
 Guardian A guardian ad litem may be appointed to an 
 where'in- infant defendant, who has appeared, but is not 
 required to required to answer, although the case does not 
 come strictly within the terms of the 32nd Ge- 
 neral Order of May 1845, as there is no default 
 by the infant, either in not appearing or not an- 
 swering. Beridey v. Robinson, (a) In that case 
 an application had been made to the solicitor by 
 whom the appearance was entered, to appoint a 
 guardian to defend, but no such appointment had 
 been made, and accordingly, on the motion of the 
 plaintiff, the solicitor to the suitor's fund was 
 appointed the guardian ad litem. 
 What affi- Now that the Court dispenses with the old 
 cessary to rulc, wbich required the infant to be produced 
 guardian in Gourt, the affidavit in support of the ap- 
 plication to appoint a guardian ad litem, ought 
 to shew that the proposed guardian is a re- 
 lative, or connexion, or friend of the family, 
 and therefore a proper person to be entrusted 
 with the defence of the suit on behalf of 
 the infant, and not a mere volunteer. The 
 affidavit should shew at least how the pro- 
 posed guardian was introduced to the family, 
 (o) 9 Hare, Appendix, p. Ixxvi. 
 
 ad litem. 
 
BILL. 33 
 
 Foster Y. Cautley. (a) A person who was already 
 a party in the cause would be preferred, rather 
 than a stranger. Anon, {b) 
 
 The 44th section of the New Procedure Act, Represen- 
 15 & 16 Vict. c. 86, provides that if in any suit the"pur-' 
 or other proceeding, it shall appear that any de- suf^" 
 ceased person who was interested in the matters 
 in question, has no legal personal representative, 
 the Court may either proceed in the absence of 
 any person representing the estate of such de- 
 ceased person, or may appoint some person to 
 represent such estate for all the purposes of the 
 suit or other proceeding, and any orders conse- 
 quent thereon will bind the estate of such deceased 
 person. 
 
 It is obvious that the Court will not under the Legal pcr- 
 
 sonal re- 
 
 44th section of the New Procedure Act, 15 & 1 6 presenta- 
 
 tivenotdia- 
 
 Vict. c. 86, dispense with the personal represen- pensed 
 
 with, where 
 
 tative 01 a trustee, where such personal represen- he has ac- 
 tative has necessarily active duties to perform in to perform, 
 the execution of the trust. As where a biU was 
 filed to execute the trusts of a term created by a 
 marriage settlement; for raising a sum of money 
 for the benefit of the plaintifi', and the surviving 
 trustee of the term had died, and there was no 
 personal representative to his estate. Fowler v. 
 Bayldon. (c) 
 
 (a) 10 Hare, Appendix, p. xxiv. ; S. C, 22 L. J. (n. S.) 
 639 ; 17 Jut. 370, aiid-21 L. T. 262. 
 (J) 9 Hare, Appendix, p. xxvii. 
 (c) 9 Hare, Appendix, p. kxviii. 
 
 D 
 
34 THE NEW CHANCERY PRACTICE. 
 
 whenUirai A claim for the appointment of new trustees 
 
 representa- was allowcd to procced in the absence of a per- 
 
 d7spe"sed* sonal representative of a deceased person who had 
 
 died indebted, and had no other property, and 
 
 who had an interest in the trust funds only in 
 
 the contingent event of the death of his childj 
 
 (the infant plaintiff) under twenty-one. The bill 
 
 stated that no steps had been taken, or were 
 
 likely to be taken for obtaining letters of admi- 
 
 Magnay v. nistratiou to his estate and effects. Magnay v. 
 
 Davidson. 7^ • 7 ^ \ 
 
 Damason. (a) 
 
 In Hewitson v. Todhunter, (6) on the hearing 
 of a petition in the suit relating to the dispo- 
 sition of a trust fund, it appeared that A. had 
 an interest in it which might be asserted. A. 
 died in the United States, having by his will 
 appointed B. his executor, who proved the will 
 there, but it had not been proved in this country. 
 B. appeared by counsel. 
 
 T^hulr. ^^® ^^^^ Chancellor Stuart said the 44th 
 section of the late act, had given the Court 
 very large powers with reference to proceeding 
 ii? causes without personal representatives of 
 claimants. He would exercise the power given 
 him in this case, by appointing B. to represent 
 A.'s estate. The argument on the point of con- 
 struction proceeded accordingly. 
 
 Where ap. Whcrc a deed of trust had been executed for 
 
 piic&iion 
 
 made upon / \ ,« tt 
 
 notice. (o) 9 Hare, Appendix, p. Ixxxii. 
 
 (J) 22 L. J. (N. s.) 76. 
 
BILL. ' 35 
 
 the benefit of creditors, and the debtor had 
 died, leaving an insolvent estate, and there was 
 no legal personal representative to the deceased 
 debtor in existence, the Court allowed a suit by 
 creditors interested in the property comprised in 
 the trust deed, to proceed against the trustees 
 alone, without aippointing any person to represent 
 the estate of the decejtsed debtor for the purposes 
 of the suit, and in the absence of any such per- 
 sonal representative. The application in such a 
 case must be made upon notice, and not ex parte. 
 Chaffers v. Headlam. (a) In general, however, the 
 application is made ex pctrte. Thus where, after 
 an order had been made in an administration 
 claim, one of the executors who was also residuary 
 legatee, died insolvent, never having proved nor Rogers \. 
 possessed assets, and his widow refused to take 
 out administration, and his child could not be 
 found ; the Court upon an ex parte application 
 by the plaintiflf, allowed the suit to proceed in 
 the abseiice of any personal representative of the 
 deceased executor. Rogers v. Jones, (b) 
 
 So in Cox V. Taylor (c), where one of several ^^^ 
 cestuis que trust died, being in very poor circum- 
 stances, leaving a husband surviving who would 
 be entitled to administer, but who was a day 
 labourer, the Court in the exercise of its discre- 
 
 (fls) 9 Hare, Appendix, p. xlvi. . 
 
 (J) 18 Jxir. 968. See Form of Order, mfra, Appendix of 
 Porms. 
 
 (c) 21 L. T. 123. 
 
 D 2 
 
36 
 
 THE NEW CHANCEBY PRACTICE. 
 
 Dean and 
 Chapter of 
 Ely V. Ed. 
 wards, 
 
 Represen- 
 tative not 
 a]}pointed 
 where 
 estate of 
 deceased 
 ' person 
 forms the 
 subject of 
 the suit. 
 
 Groves v. 
 Lane. 
 
 Adminis- 
 trator ad 
 litem. 
 
 tiori, upon the production of an affidavit, stating 
 that there was no legal personal representative, 
 dispensed with a representative to the deceased 
 under the 44th section of the New Procedure 
 Act, 15 & 16 Vict. c. 86, the interests of the 
 several cestuis que trust being moreover identical. 
 In the Dean and Chapter of Ely v. Edwards, (a) 
 where a defendant who was tenant for life of 
 tithes, which at his death belonged to the plaintiffs, 
 had died intestate, and there was no legal personal 
 representative. The Master of the RoUs, after 
 consulting with the other Judges, directed that 
 the widow should be served with notice of 
 the order, and should appear and represent her 
 deceased husband's estate and effects for all the 
 purposes of the suit. 
 
 But in Groves v. Lane, {b) it was held by the 
 Yice Chancellor Kindersley, that where the estate 
 of the deceased person forms the subject of the 
 suit, the deceased person could not be said to be 
 interested in the matters in question within the 
 meaning of the 44th section of the New Pro- 
 cedure Act, 15 & 16 Vict, c, 86, and therefore 
 that a representative could not be appointed 
 under that section. 
 
 In the same case it was held that an adminis- 
 trator, ad litem, does not sufficiently represent 
 the estate of the intestate, where the object is to 
 administer his estate. ' 
 
 (a) 17 Jur. 219 ; 8. 0. 22 L. J., (n. s.) 630. 
 
 (fr) 16 Jur. 1061. See also Siher v. Stein, 1 Drewry, 295. 
 
BILL. 37 
 
 If it were sought only to hind the estate, the whensuffi- 
 suit would be rightly constituted with an admi- sentative. 
 nistrator ad litem, and it would not be necessary 
 to have a full personal representative before the 
 Court. His Honor commented on Davis v. 
 Chanter, (a) 
 
 The 44th section of the New Procedure Act, where dc- 
 
 , r\n •tt ' 1 cree sought 
 
 15 & 16 Vict. c. 86, Will not apply to any case against 
 in which a decree is 'sought against the estate of deceased ' 
 the deceased party personally. In Brinton v. sonaiiy. 
 Hughes, (Jb) where the plaintiff, a transferee of a 
 mortgage, sought to proceed in a foreclosure suit, 
 without having any representative of the original 
 mortgagee before the Court, the Vice Chancellor 
 Kinderslev said, " You want to bind the estate of Brmtm v.- 
 
 Hughes. 
 
 the deceased mortgagee by a foreclosure. You 
 
 want to bind his personal estate. I do not think 
 
 the 44th section of the act applies where the 
 
 decree is intended to be a decree against the 
 
 party. The intention clearly is, in whatever 
 
 cases it can be properly applied, that it should be 
 
 in the discretion of the Court, when the Court 
 
 sees it can be done without danger to any body." 
 
 The case of the Dean and Chapter of Ely v. 
 
 Edwards, (c) was cited, where the Master of the 
 
 Rolls directed the widow of the deceased party to 
 
 be served with all the proceedings, but his Honor 
 
 said he could not do that in this case. 
 
 (a) 2 Ph. 544. « 
 
 (J) 21 L. T. 123. 
 
 (c) 17 Jur. 219 ; 8. C. 22 L. J., N. S. 630. 
 
38 THE NEW CHANCERY PRACTICE. 
 
 Represen. In HeU V. BexUy^ (a) an application was made 
 appointed Under the 44th section of the New Procedure 
 t'oprobafe''* Act, 15 & 16 Vict. c. 86, for an order appointing 
 put". ^' the executor named in a will (but the right to 
 probate of which was in course of litigation) to 
 be a representative for the purpose of prosecuting 
 the suit. The report had been made in the 
 cause, but not signed. 
 stieg. The Master of the RoUs doubted if he could 
 
 do it. It was in effect to appoint an adminis- 
 trator pendente lite. Besides the 44th section 
 said, " where there was no legal personal repre^ 
 sentative." 
 
 No order was made then on the motion. 
 JJe'objecr It J^^s been held that the 44th section of the 
 i^oney^out" ^cw Procedurc Act, 15 & 16 Vict. c. 86, does 
 of Court. jjQj. apply where the object is to obtain the pay^ 
 ment of money out of Court. In Rawlms v. 
 McMahon, (6) a petition was presented to have a 
 sum of 28Z. paid under the above section to 
 certain persons who were the solicitors of a de- 
 ceased party to the suit, in order to avoid the 
 expense of taking out representation. 
 Raviiin, V. The Vicc Chancellor Kindersley held that the 
 
 McMahon, . ./ ~ »»^ 
 
 dause did not apply, and declined to make the 
 order. 
 
 (o) 25tli Nov. 1852. Not reported, 
 (i) 1 Dfewry, 225. 
 
BILL. 39 
 
 Section 3. 
 
 Amended hill, how amendments made, within 
 what time^ when fresh engrossment necessary, 
 practice of amending defendants copy abolished, 
 amending without prejudice to injunction, new 
 .facts and circumstances, when leave not given 
 to add them to the record, leave not given on 
 application of defendant. 
 
 By the 8th section of the New Procedure Act, 
 15 & 16 Vict, c, 86, it is provided that upon the 
 amendment of any bill or claim, the provisions 
 contained in the former sections of the act with 
 respect to filing and serving and delivering 
 jffinted copies thereof shall, so far as may be, 
 extend and be applicable to the bill or claim as 
 amended : Provided that where, according to the 
 former practice of the Court, an amendment of a 
 bill or claim might be made without a new en- 
 grossment thereof, a bill or claim may now be 
 wholly or partially ainended by written altera- 
 tions in the printed bUl of complaint or claim so 
 to be filed as aforesaid. 
 
 The 16th General Order of the 8th of May 
 
 1845, art. 32, prc^vides that in cases where there 
 
 is a sole defendaJit, or where, there being several 
 
 ■ defendants, they a.11 join in the same answer, the 
 
 plaintiff may, after answer and before repUcJatioJi 
 
40 THE NEW CHANCERY PaACTICB. 
 
 or tindertaking to reply, obtain one order of 
 course for leave to amend the bill, at any time 
 within four weeks after the answer is deemed or 
 found to be suflScient- 
 
 * Art, 33, of the same Order, provides that in 
 cases where there are several defendants who do 
 not join in the same answer, the plaintiff (if not 
 precluded from amending, or limited as to the 
 time of amending by some former order) may, 
 after answer and before replication or under- 
 taking to reply, at any time within four weeks 
 after the last answer is deemed or found to be 
 sufficient, obtain one order of course, for leave to 
 amend his bill. 
 
 By Art. 34, of the same Order, the plaintiflF, 
 having obtained an order for leave to amend his 
 bill, has, in aU cases in which such order is not 
 made without prejudice to an injunction, fourteen 
 days after the date of the order within which he 
 may amend such biU. 
 
 If such bill be not amended within such four- 
 teen days, the order for leave to amend 
 becomes void, and the cause as to dismissal 
 stands in the same situation as if such order 
 had not been made. 
 By Art. 35, of the same Order, the plaintiff, 
 having obtained an order for leave to amend his 
 bill without prejudice to an injunction, must 
 amend such bill within seven days from the date 
 of the order. 
 
BIIX. 41 
 
 By the 64th and following General Orders of 
 the 8th of May 1845, the following rules are 
 laid down ^ with respect to the amendment of a 
 bill. 
 
 LXIV- An order for leave to amend a bUl 
 may be obtained at any time before answei", upon 
 motion or petition, without notice. 
 
 LXV. An order for leave to amend a bill only 
 for the purpose of rectifying some clerical error 
 in names, dates, or sums, may be obtained at 
 any time upon motion or petition, without 
 notice. 
 
 LXVI. (a) One order of course for leave to 
 amend a biU as the plaintiff may be advised, may 
 be obtained by the plaintiff, at any tinae before 
 filing (or undertaking to file) a replication, and 
 within four weeks after the answer or the la§t of 
 several answers is to be deemed sufficient; but 
 no further order of course for leave to amend a 
 bin is to be granted after an answer has been 
 filed, unless in the case provided for by Order 
 LXV. 
 
 LXVII. A special order for leave to amend a 
 bill is not to be granted without affidavit to the 
 effect, — 1, that the draft of the proposed amend- 
 ments has been settled, approved, and signed by 
 counsel; and 2, that such amendment is not in- 
 tended for the purpose of delay or vexation, but 
 
 (a) Neck v. Oains, 1 De GT. & Sm. 223. 
 
42 THE NEW CHANCBBY PKACTICE. 
 
 because the same is considered to be material for 
 the case of the plaintiff, (a) 
 
 LXVIII. After the plaintiff has filed or under' 
 taken to file a replication, or after the expiration 
 of four weeks from the time when the answer or 
 last answer is deemed sufficient, a special order 
 for leave to amend a bill is not to be granted 
 without further affidavit shewing that the matter 
 of the proposed amendment is material and could 
 not with reasonable diligence have been sooner 
 introduced into such bill, {b) 
 
 LXIX. Such affidavits as are mentioned in 
 Orders LXVII and LXVIII are to be made by 
 the plaintiff and his solicitor, or by the solicitor 
 alone in case the plaintiff from being abroad or 
 otherwise is unable to join therein. 
 
 LXX. Where the plaintiff obtains an order ibr 
 leave to amend his bill and does not amend the 
 same within the time limited for that purpose, 
 the order to amend becomes void, and the cause 
 as to dismissal stands in the same situation as if 
 such order had not been made. 
 
 LXXI. Where the plaintiff amends his bill 
 without requiring an answer to the amendments, 
 no warrant for time to answer such amendments 
 is to be granted after the expiration of eight days 
 from the service of the notice of the amendment 
 of the bill. 
 
 (a) See as to former practice, Coombe v. Bamsav 2 Ph 
 168, and Wright v. Kmg, 9 Beav. 166. 
 (J) See m^a, p. 16. 
 
BILL. 43 
 
 By. the 7th of the General Orders of the 
 7th of August 1852, where according to the 
 present practice pf the Court an iamendment of 
 a bill or claim may be made without a new 
 engrossment thereof, the bill ■ or claim may be 
 amended by written alterations on the printed 
 bill of complaint or claim so to be filed, and 
 by additions on the paper to be interl^ved there- 
 with according to the' directions of Order I. 
 
 By the 8th of the General Orders of the 7th 
 of August 1852, the practice of amending a 
 defendant's copy of the bill is now abolished. 
 
 Amendments of a bill or claim exceeding two 
 folios in length, cannot be made under the provi- 
 sions of the 8th section of the Jfew Procedure 
 Act, 15 & 16 Vict. c. 86, and the 7th of the 
 General Orders of the 7th of August 1852,, by 
 written alterations in the printed biU or claim 
 on the files of the Court. This was held by the 
 Appeal Court in Stone v, Davies. (a) The bill 
 which was printed and interleaved, according 
 to the new practice, was amended on the coming 
 in of the answer, by introducing considerable 
 alterations in writing, iKEceeding two folios in 
 length. Upon an application for , an order, au- 
 thorizing the clerk of records and writs to engross 
 these amendments on the printed bill, it was 
 argued, that the reason for the limit of two folios 
 under the old rule, was no longer a^plicable^ 
 
 (a) 17 Jur. 585 ; S. C. 22 L. J. (n. s.) 672, and 21 L. T. 
 190. 
 
44 THE NEW CHANCERY FBAX:;T1CE. 
 
 for much larger amendments might now be 
 introduced upon the interleaved papers, without 
 interfermg with the legibility of the record; 
 their Lordships, however, were of opinion that 
 they had no power to make the order. 
 
 The amended bill before being served will re- 
 quire to be authenticated in like manner as an 
 original bill with the stamp of one of the clerks 
 of records and writs, and the form of indorse, 
 ment specified in the schedule to the act must be 
 altered by substituting for the word " bill " the 
 words "amended bill." 
 
 K the amendment does not in any one place 
 exceed two folios or 180 words it may be in- 
 troduced into and incorporated with the bill or 
 claim, either by an interlineation in writing or 
 perhaps more conveniently by written additions 
 on the paper to be interleaved with the original 
 copy filed, in the manner suggested by the 7th 
 of the General Orders of the 7th August, 1852. 
 The 8th of those Orders having abolished the 
 old practice of amending a defendant's copy 
 of the bill, in lieu thereof each defendant 
 must now, in every case, be served with a fresh 
 copy; such copy being either the bill or claim as 
 originally filed, with the amendments in writing 
 if they in no place exceed two folios, or if they 
 exceed that length, then being an entire reprint 
 of the original bill or claim as altered by the 
 amendments. 
 
BIIiL. 45 
 
 The service of the bill or claim as thus amended 
 will be effected in precisely the same manner, and 
 have precisely the same effect for all purposes, as 
 the service of the subpoena to answer the amended 
 bill, prior to the pasdng of the act. 
 
 The rules determining when an order can be 
 obtained to amend, and when not, will still be 
 according to the fgrmer practice under the 
 Orders of May 1845, and the subsequent Order 
 of 13th April 1847. 
 
 Such applications, though now generally origi- 
 natiiig by summons at chambers, under the 26th 
 section- of Master in Chancery Abolition Act, 15 
 & 16 "Vict. c. 80, will be adjourned to be argued 
 in open Court, where they may require the at- 
 tendance of counsel. 
 
 Although injunctions to stay proceedings at 
 law are now put, for the purposes of section 58 
 of the New Procedure Act, on the same footing 
 as special injunctions, it is presumed that the 
 plaintiff by amending his bill as of course, might 
 still lose the benefit of the injunction to stay 
 proceedings. At all events it would be prudent 
 to provide against it in the order : and for that 
 purpose the motion must be a special one, made 
 upon notice, and stating the substance of the 
 amendments. All special applications of this 
 kind will still, it is presumed, be made in open 
 Court, and not to a Judge at chambers, notwith- 
 standing the general terms of section 26 of the 
 Master in Chancery Abolition Act., See Wright 
 
46 THE NEW CHANCERY PBACTICE. 
 
 V. King, (a) and Coombe v. Bamsay, (6) as to 
 making applications for leave to amend, to the 
 Court or to the Mastier, under the former practice. 
 Where the application is not for leave to amend 
 only, but for some other special object,' which 
 would require the application to be made in open 
 Court, there it is clear the application for bofli 
 objects ought to be made in open Court, and not 
 at chambers, even where it is a consent motion. 
 See Atkinson v. The Oxford, Worcester and Wol- 
 verhampton Railway Company, (c) 
 
 Where the case falls within the 68th of the 
 Orders of May, 1845, that is, where the plaintiff 
 has filed or undertaken to file a replication, or 
 after the expiration of four weeks from the time 
 when the answer or last answer is deemed suffi- 
 cient, the affidavit must still shew that the 
 matter of the proposed amendment is material, 
 and could not with reasonable diligence have 
 been sooner introduced into the bill; the word 
 *' shewing " in this Order being interpreted by 
 Lord Truro, to mean not merely an alleging of 
 the materiality, or of due dispatch, but a shewing 
 how the amendments are material, and vihat de- 
 gree of diligence has been used. See Stuart v. 
 ■Lloyd, (d) 
 
 By the 53rd section of the New Procedure 
 Act, 15 & 16 Yict. c. 86, new facts or cir- 
 cumstances which may have occurred after the 
 
 (o) 9 Beav. 161. (c) 22 L. J. (n. s.") 15 
 
 (J) 2 Phil. 168. (d) 3 McN. & &. 181. 
 
BILL. 47 
 
 institution of any suit, may be introduced by 
 way of amendment into the original bill of com- 
 plaint in the suit, if the cause is- otherwise in 
 such a state as to allow of an amendment being 
 made in the bill, and if not, the plaintiff will be 
 at liberty to state such facts or circumstances on 
 the record. 
 
 Leave wiU not b§ given to introduce a new 
 case, by amendment under the 53rd section of 
 the New Procedure Act, 15 & 16 Vict. c. 86, 
 unless it appears to the Court that by means of 
 the amendments, the bill can be put into such 
 a shape as to enable the Court to adjudicate. 
 Thus in OsteU v. Lepage^ (a) where there had 
 been a final decree in a suit in India, the Court 
 on making an order to stay an English suit for 
 the same purpose, without prejudice to any 
 proceedings which the plaintiff might be advised 
 to adopt with reference to the decree and pro- 
 ceedings in India, would not give the plaintiff 
 leave by supplemental bill or amendment under 
 the new practice, to continue the English suit, . 
 in order to obtain discovery of facts, which •sftjuld 
 enable him to set aside the decree in India. 
 
 The Vice Chancellor Stuart observed, that a 
 bill to set aside the decree in India, or to get 
 more extensive relief than was given by that 
 decree, must be framed on a different plan from 
 the bill then before the Court. 
 
 (a) 16 Jur. 1134 
 
48 THE NEW GHANCEEY PRACa'lCE. 
 
 By the 44tH of the General Orders of the 7th 
 of August 1852^, if the plaintiff in any cause 
 which is not in such a state as to allow of an 
 amendment being made in the bill, shall desire 
 to state or piit in isfeue any facts or circumstances 
 which may have occurred after the institution of 
 the suit, he may state the same and put the same in 
 issue by filing in the record and writ clerk's office 
 a. statement, either written or printed, to be an- 
 nexed to the bUl, and such proceedings by way 
 of answer, evidence, and otherwise are to be had 
 and taken upon the statement so filed, as if this 
 same were embodied in a supplemental bill ; pro- 
 vided always, that the Court may make any order 
 which it shall think fit for accelerating the pro- 
 ceedings thei'eunder, or proceedings therein, in 
 any manner which may appear just and prac- 
 ticable. 
 
 In Langdole v. GUI, (a) it was held not to be 
 
 necessary to obtain any order of the Court 
 
 before filing a statement of new facts arid cir- 
 
 . cumstances under the 44th General Order of the 
 
 7th «f August 1852. 
 
 The Court will not, on the petition of a 
 defendant, direct the plaintiff, under the 44th 
 General Order of the 7th of April 1852, to 
 annex to the bill a statement of new facts or 
 circumstances which may have occurred after 
 the institution of the suit. In Longdate v. 
 (a) 20 L. T. 88; S. C. 16 Jur. 1041. 
 
BILL. 49 
 
 Crill, the dividends of a fund in Court had been 
 ordered to be paid to a female defendant by 
 her maiden name. She married, an.d the fund 
 was, settled; and an application was made that 
 the plaintiff should be directed to annex such a 
 statement to the bill as would shew the marriage, 
 and the nature and effect of the settlement, and 
 for payment of the dividends to the wife for her 
 separate use. The Vice Chancellor Stuart made 
 the order asked for payment of the dividends, and 
 he thought no order for annexing such a state- 
 ment to the bill was necessary ; but he observed, 
 that it would be a novelty to give to a defendant 
 the means of amending the plaintiff's bill, and 
 that the plaintiff was at least dominus litis to 
 that extent. 
 
 Section 4. 
 
 Revivor and supplement, order for revivor and sup- 
 plemental decree, on motion, order in what form, 
 what changes of interest contemplated, Court will 
 not direct executors to admit assets or otherwise 
 the account to be taken, only the usual supple- 
 mental decree can be obtained, the 52nd section 
 applies to claims as well as to bills, when a hand 
 motion only, when made in Court, when abate- 
 ment by death of plaintiff, when defendant may 
 apply, when appearance to be entered, when not, 
 in cases of revivor, on supplemental decrees, 
 
 E 
 
5-G THE NEW CHANCERY PRACTICE: 
 
 where abatement takes place before decree, motion 
 to discharge order for revivor, or supplement 
 order, within what time. '^ 
 
 mS^t! °'' The 52nd section of the New Procedure Act, 
 
 "ecree ^^ ^ 16 Vict. c. 86, provides that upon any suit 
 bjecoming abated by death, marriage, or other- 
 wise, or defective by reason of some change or 
 transmission of interest or liability, it shall not 
 be necessary to exhibit any bill of revivor, or 
 supplemental bill, in order to obtain the usual 
 order to revive such suit, or the usual or neces- 
 sary decree or order to carry on the proceedings^ 
 but an order to the effect of the usual order to 
 revive, or of the usual supplemental decree, may 
 be obtained as of course, upon an aUegatipn of 
 the abatement of such suit, or of the same having 
 become defective, and of the change or transmis- 
 sion of interest or liability. 
 
 Order in .Under this section the Court will make an 
 order for revivor as well as for the usual supple- 
 mental decree, if the order is required to be in 
 that form, notwithstanding that the words of the 
 section are in the disjunctive. The order will 
 be to revive and carry on the proceedings as on 
 a supplemental decree. The order is made on 
 the allegation of the facts constituting the abate- 
 
 Martiny. ment without proof of those facts. Martin v. 
 aadlow. (a) 
 
 (a) 9 Hare, Appendix, p. lii. ; S. C. 22 L. J., (n. s.) 9. 
 
BILL. SI 
 
 The birth of one of a class, entitled as such, what , 
 
 changes 
 
 after decreie, is within the 62nd section of the of interest 
 
 contem. 
 
 New Procedure Act, 15 & 16 Vict. c. 86, and the plated. 
 usual supplemental decree will be made. 
 
 Thus in Fullerton v. Martin (a), all -the chil- Fuihrton 
 
 ^ " ^ V. Martin. 
 
 dren of A. B. were necessary parties to a suit. 
 
 After the decree had been made, and proceed- 
 ings taken in the Master's Office, the number of 
 the class who took a beneficial interest, was 
 altered by the birth of another child. The Vice 
 Clfancellor Kindersley said there was .no trans- 
 mission, but there was a change of interest, and 
 the case was clearly within the spirit, if not 
 within the actual words of the statute, and his 
 Honor on motion tmder the 52nd section, made 
 the usual supplemental decree. 
 
 The Vice Chancellor observed in this case that 
 under the old practice there would be a reference 
 to inquire whether it would be for the benefit of 
 the infant to be bound by the proceedings. The 
 doubt he had was whether directing the infant to 
 be bound by the proceedings, would be within 
 the common supplemental decree. 
 
 It afterwards appeared, however, that the infant 
 was born after the report, so that the special 
 direction for him to be bound by the report be- 
 came unnecessary, {b) 
 
 So the 52nd section applies, where the rights of Amm^ v. 
 
 (a) IDrewry, 238. 
 
 (5) Not reported on this point. 
 
 E 2 
 
52 THE NEW CHANCERY PRACTICE. 
 
 the plaintiff are affected by a settlement, executed 
 after the institution of the suit. This was held 
 by the Lords Justices in Atkinson v. Parker, (a) 
 It was the suit of an infant legatee for the ad- 
 ministration of the real and personal estates of 
 a testator. During the progress of the suit the 
 plaintiff married. By the settlement which was 
 executed, pursuant to an order of the Court, the 
 property to which the plaintiff was entitled under 
 the will, was vested in trustees upon trusts for 
 the benefit of herself and children. Upon a 
 motion being made as of course on an allegation 
 of the above facts for a supplemental order, to 
 bring the trustees of the marriage settlemeHt 
 before the Court, their Lordships were of opinion 
 that the case was within the act, and made the 
 order. 
 
 So in Lowes v. Lowes, (b) where the suit had 
 become abated, the Court made an order to re- 
 vive at the instance of a creditor whose debt had 
 been reported due, the report having been con- 
 firmed; the Lords Justices, on appeal from the 
 decision of the Vice Chancellor Stuart, held that 
 even if the case did not come strictly within the 
 words of the 52nd section of the New Procedure 
 Act, 15 & 16 Vict. c. 86, it clearly came within 
 the equity, and within the spirit and intendmeqt 
 of the act, and their Lordships made the order. 
 
 (a) 2 De Gex, McN. & G. 221 ; S. C. 16 Jur. 1009^; and 
 22 L. J. (is. s.) 20. ' 
 
 (*) 22 L. J. (N. s.) 179. 
 
 Lowes V. 
 Lowes, 
 
BILL. 53 
 
 In making an order under the 52nd section of Court win 
 
 not direct ' 
 
 the New Procedure Act, 15 & 16 Vict. c. 86, to executors 
 
 /> 1 T '° admit 
 
 revive a suit against the executors of a deceased assets, or 
 defendant, the Court will not direct that they theac- 
 shall either admit assets, or in default that an betaken. 
 account of their testator's estate shall be taken. 
 Upon a suggestion by counsel that the mere 
 order to revive was not suflScient, and that no 
 relief could be obtained against executors with- 
 out an admission of assets, or an order to take 
 the accounts of the testator's estate, the Master Dean and 
 of the Rolls said, the act gives no authority to Eiyv. 
 the Court to direct the executors to admit assets : 
 that can only be rectified by a new enactment. 
 Dean and Chapter of My v. Edwards, (a) 
 
 The 52nd section of the act does not apply 52nd sec 
 where any thing more than the common order applies^ 
 to revive or the usual supplemental decree is usu*ai order 
 required. Thus, where two creditors were co- """I'"™ • 
 plaintiffs in a general creditor's suit, and an 
 abatement took place by the death of an executor 
 of the testator, and one of the co-plaintiffs obtained 
 administration de bonis non to the estate of the 
 testator. Upon a motion for leave to file a special 
 supplemental claim to bring the administrator de 
 bonis non, and the executors of the deceased 
 executor before the Court, praying that the 
 latter might admit assets of their testator, or 
 
 (a) 22 L. J. (n. 8.) 629. 
 
64' THE NEW CHANCERY PRACTICE. 
 
 |iiight account in the usual manner, the Vice 
 4jhancellor Turner gave leave to file the special 
 claim, observing that the relief asked was more 
 than the common order to revive, or the usual 
 supplemental decree, and therefore it could not 
 be obtained under the 52nd section of the New 
 
 ft,'-^ Procedure Act, 15 &.16 Yict. c. 86. Tate v. 
 Ldthead. (a) 
 
 So, where a decree for administration has been 
 made against the surviving executor only, and it 
 afterwards beconjes necessary to bring the rer 
 presentative of the deceased executor before the 
 Court, the proceeding is not strictly supple- 
 mental. And the 52nd section of the Chancery 
 Procedure Act, which provides for the obtaining 
 an order to thp effect of the usual supplemental 
 decree, upon a motion, as of course, does not 
 apply ; nor can such representative be brought 
 before the Court by writ of sunjmons, to be 
 obtained under the Master's certificate, under the 
 18th General Order of the 22nd of 4.pril 1850. 
 
 f jfeBB!" '^^^ representative of the deceased executor in 
 such a case, can only be made g, party by 
 some qriginal or supplemental suit. Ewington 
 v. Fenn. (b) 
 
 wikony. So in Wilson v. Ouchterlonv (c), one of the 
 
 Ouchter- , «7 \ / ' 
 
 Ion;/. earliest cases which arose under the new prac- 
 
 («) 9 Hare, Appendix, p. li., reported as Yate v. Zeithmd, 
 16 Jur. 964 ; S. C. 22 L. J. (n. s.) 9. 
 
 (6) 9 Hare, Appendix, p. x. ; 8. C. 22 L. J. (n. s.) 256. 
 (c) Not reported.. 
 
BILL. 55' 
 
 tice, all the persons interested in certain shares 
 and interests in real estate were necessary parties. 
 It appeared that there were incumbrancers on 
 some of the shares who had not been made 
 parties, though their intjumbrances were created 
 before the institution of the suit. Upon an 
 application being made under the 52ad section, 
 the Vice Chancellor Stuart said, what you are 
 entitled to is only tHe usual supplemental decree ; 
 you must put in issue the fact of the mortgages. 
 A supplemental bill must be filed. 
 
 It was at first doubted whether the provisions 52nd sec- 
 of the 52nd section of the New Procedure Act to claims 
 
 go well AS 
 
 applied to claims as well as to bills, the section to bills! 
 speaking only in terras of supplemental bills and 
 bUls of revivor. Claims, however, are held to 
 come within it, and it is quite immaterial for the 
 purposes of the order of revivor or supplemental 
 decree, whether the proceeding is by bill or by 
 claim. Martin v, Hadlow. (a) 
 
 Where only the common order to revive is when » 
 
 ■' 1 1 • hand mo- 
 
 required, the application need not be made in tion only 
 open Court; but the brief, with counsel's signa- 
 ture, may be handed in to the registrar, as 
 is usual upon motions of course. Bonfil v. ^^^j^; 
 Purchas. (6) There seems to be no reason why 
 the common order to revive should not be 
 granted at chambers, and probably it wbuld now 
 
 (fl) 16 Jut. 964, and 9 Hare, Appendix, p. lii. See also 
 Oox V. Taylor, 9 Haj^e, Appendix,' p. lii., note.- 
 (*) 16 Jur. 965. 
 
56 THE NEW CHANCERY PEACTICB. 
 
 be granted there if applied for. Where a sup- 
 plemental decree or order is required, the motion 
 must be mentioned to the Court. 
 Where A changc or transmission of interest aflFecting 
 
 by death of ouc of scveral plaintiffs or a sole plaintiff, would 
 appear to be as much within the S^nd section, as 
 one affecting a defendant : and the question as to 
 the parties upon whom the order is to be served, 
 would depend on the same rules, as the questions 
 which arose under the former practice, with re- 
 ference to the necessary parties to bills of revivor 
 or supplement. Sometimes these questions have 
 been attended with much nicety. See cases 
 referred to in Parker v. Carter, (a) As the 
 expense of serving copies of the order will be 
 trifling, probably the Court would now lean to 
 requiring this service upon every party to the 
 original suit, whose interest could be in the 
 slightest degree affected. 
 petrev. In PetTB V. Petre, (b) after the bill had been- 
 
 dismissed with costs the plaintiff died. An appli- 
 cation was made under the 52nd section of the 
 New Procedure Act, 15 & 16 Vict, c. 86, for an 
 order to revive the suit. The Vice Chancellor 
 Kindersley said, as this would be done under the 
 old practice, he did not see why the new practice 
 should not be made to apply to the case; and his 
 Honor made the order to revive. It does not 
 appear from the report of this «ase, whether tlie 
 
 (a) 4 Hare, 406 ; and see Hmsey v. Bimett, 7 Beav 499 
 
 (b) 21 L. T. 136. 
 
 Pelre. 
 
BILL. 57 
 
 bill had been dismissed for want of prosecution, 
 or by the decree in the cause, or whether there 
 was a sole plaintiff, or whether the costs had 
 been taxed before the order for revivor, or 
 whether the attention of the Court was particu- 
 larly called to the doctrine with respect to re- 
 vivor for costs only. So that the case is only 
 cited, as shewing that the 52nd section of the act, 
 applies to a change or transmission of interest 
 occasioned by the death of a plaintiff, (a) After 
 decree, any defendant may now it is presumed 
 revive by an order as of course, under the 52nd 
 section of the act. 
 
 A defendant to whom the conduct of the suit when de- 
 
 • 1 1 1 1 J ■ ^ 1 fendant 
 
 had been given, might under the old practice tile a may apply. 
 supplemental bill to bring necessary parties before 
 the Court, and it is presumed, therefore, that in a 
 proper case he may now under the like circum- 
 stances obtain a supplemental order under the 
 52nd section of the New Procedure Act, 15 & 16 
 Vict. c. 86. 
 
 In Lee v. Lee, (b) after a decree for the com- 
 mon accounts in an administration suit, the 
 Master gave the conduct of the accounts in his 
 office to one of the defendants. It was then dis- 
 covered that the suit had from the beginning been 
 defective for want of parties, by reason of the 
 absence from the record of a mortgagee Of part 
 
 (d) See Dan. Ch. Pr. title " Bevivorfor OosU." 
 (6) 17 Jur. 607 ; S. C. 22 L. J. (s. s.) 638. 
 
58 THE NEW CHANCEKy PRACTICE. 
 
 of the testator's property. A supplemental 1)111 
 was filed by the defendant accordingly, without 
 any notice to the original plaintiff. 
 
 The Court of Appeal refused with costs a mo- 
 tion to take the bill off the file for irregularity. 
 The Court did not decide whether the objection 
 could have been taken by plea or demurrer. 
 
 The point has not yet arisen, so far as the 
 Author is aware, under the 52nd section of the 
 New Procedure Act, but in such a case as Lee v. 
 Lee, the order could not, it is presumed, have 
 been obtained under this section, upon the same 
 ground on which it was refused in Tate v. Leit- 
 head, and Ewington v. Fenn, supra, as being 
 more than the usual supplemental decree. 
 When Where the order to revive has been obtained 
 
 appearance 
 
 not to be -Under the 52nd section of the New Procedure 
 
 entered. ait 
 
 Act, and served upon the defendant, the suit 
 stands revived, without any appearance by the 
 wardv. defendant. In Wardy. Cartwright, (a) \npon an 
 application for leave to enter an appearance for 
 a defendant who had been served with the order 
 to revive, but who had not appeared, the Vice 
 Chancellor Wood said, " he had consulted with 
 the other Judges, and they thought there was no 
 necessity for any appearance at all. The inten- 
 tion of the act was that the order to revive should 
 have the same effect, as it had before the new 
 practice. The order being served, the suit was 
 thereupon revived accordingly. There was no 
 
 (a) 17 Jur. 781. 
 
 Cartwright. 
 
BILL. 59 
 
 occasion for the appearance of the patty served. 
 There would be no order, therefore, upon the 
 motion." 
 
 Where, however, it is not merely revivor which when 
 
 , ^ _ appearance 
 
 IS wanted, but a supplemental bill would have must be 
 
 ATI f A VQ Q 
 
 been necessary under the old practice, there must 
 still be an appearance entered. Thus in Cross v. Cnss v. 
 Thomas, (a) the Master of the Rolls gave leave on 
 the application of the plaintiff to enter an appear- 
 ance for the assignees of a defendant who had 
 become bankrupt, the assignees having been 
 served with a supplemental order under the 52nd 
 section of the New Procedure Act, and not hav- 
 ipig appeared thereto. 
 
 So an appearance must be entered for a de- where 
 fendant out of the jurisdiction, against whom an out of the 
 order has been made for substituted service of an Hon! and 
 order of revivor under the 52nd section of the 
 New Procedure Act, 15 & 16 Vict. c. 86. There 
 is no specific provision made in the late statute, 
 for the case of a party being out of the jurisdic- 
 tion, and substituted service being directed within 
 the jurisdiction, whence arose the necessity of 
 the application to the Court for leave. The 
 Master of the Rolls held that the plaintiff was 
 entitled to the order for leave to enter an appear- 
 ance, under the 29th of the General Orders of 
 May, 1845, and also to the order for service of 
 all the future proceedings on the party, on whom- 
 
 (a) 17 Jur. 336. 
 
 substituted' 
 service 
 within it. 
 
60 
 
 THE NEW CHANCEBY PRACTICE. 
 
 Foster v. 
 Menzieg. 
 
 AVhere 
 abatement 
 before de- 
 
 HarcRng- 
 ham V. 
 Fulman. 
 
 Motion to 
 discharge 
 order for 
 revivor or 
 supple- 
 mental 
 order. 
 
 substituted service had been ordered. Foster v. 
 Menzies. (a) 
 
 According to the note in Mr. Hare's reports, 
 the Judges of the Court have decided that where 
 an abatement in a suit takes place before any de- 
 cree has been made in the cause, the suit cannot 
 be revived by the common order obtained on 
 motion as of course under the 52nd section of 
 the New Procedure Act, 15 & 16 Vict. c. 86, 
 but a bill of revivor is necessary, (b) 
 
 It is conceived that this rule, if correctly 
 stated, must apply to the case of a motion by a 
 defendant only, or the rule must have been in- 
 tended to be laid down in those terms, not with 
 respect to the case of revivor, but with respect to 
 the case of a supplemental decree. See Harding- 
 ham V. Pulman, infra^ Appendix of Forms, .where 
 the supplemental bill was filed after the Vice 
 Chancellor Kindersley had refused to make an 
 order under the 52nd section. 
 
 By the 43rd of the General Orders of the 7th 
 day of August, 1852, any party under no dis- 
 ability or under the disability of coverture, who 
 may be served with an order to revive any suit 
 or to carry on the proceedings therein, may apply 
 to the Court to discharge such order within 
 twelve days after such service ; and any party 
 
 (a) 1 17 Jut. 857 ; S. C. 21 L. T. 123. 
 (J) 10 Hare, Appendix, p. xxxi. 
 
BILL. 
 
 being undgr any disability other than coverture 
 who may be so served, may apply to the Court 
 to discharge such order within twelve days after 
 the appointment of a guardian or guardians ad 
 litem for such party; and until such period of 
 twelve days shall have expired such order shall 
 have no force or effect as against such last- 
 mentioned party. 
 
 The remedy against the order of course for 
 revivor, or for the usual supplemental decree, 
 under the 52nd section of the act, being obtained 
 improperly, will be the same as with orders ob- 
 tained as of course in general, viz., that any of 
 the parties may move to discharge it. If there 
 were any Suppressio veri or Suggestio falsi at the 
 time when the order was obtained, or if the 
 party obtaining it was not entitled to institute 
 the proceeding, as not being in fact the fegal 
 personal representative, or otherwise, the order 
 would be discharged. 
 
 The time fixed by the General Orders for 
 moving to discharge the order for the revivor 
 or supplemental decree, is twelve days from the 
 service of the order where there is no disability, 
 or otherwise twelve days from the appointment 
 of a guardian ad litem. Where there are infants 
 parties to the original suit, whether plaintiffs or 
 defendants, the party obtaining the order must 
 get a guardian ad litem appointed, before he can 
 proceed in the cause. 
 
62 THE- NEW CHANCERY PRACTICE. 
 
 CHAPTER II. 
 Section 1. 
 
 INTERROGATORIES. 
 
 • 
 
 Sow JUed, within what time, form of, obtaining 
 further time to file, service of, . what delivery 
 
 ■ sufficient, when may be filed before printed bill 
 on the file. 
 
 interroga,. By the 12th section of the New Procedure Act, 
 be filed in 15 & 16 Vict. c. 86, the plaintiflP, if he requires 
 Office. an answer, must file interrogatories in the Record 
 Office, and deliver to the defendant or his soli- 
 citor a copy of such interrogatories, or of such 
 of them as shall be applicable to the particular 
 defendant. 
 Within By the 16th of the General Orders of the 7th 
 
 after time of August 1852, in cases in which the plaintiff 
 a^'ear- °' requires an answer to any bill from any defend- 
 ant or defendants, thereto, the interrogatories for 
 the examination of such defendant or defendant^ 
 are to be filed within eight days after the time 
 limited for the appearance of such defendant or 
 defendants. 
 
 ance. 
 
INTERROGATORIES, ' 63 
 
 The form of the interrogatories is given in Form of 
 schedule (C) to the General Orders of the 7th tories°^" 
 August 1852. See infra, Appendix of Forms. 
 
 If the plaintiff requires further time for filing obtaining 
 his interrogatories, it is presumed he will have to t'me to file 
 
 - . c T ' 1 interroga- 
 
 make a speeial case for the mdulgence of the tories. 
 Court, either by mere statement, or by affidavit, 
 according to circumstances, so as to satisfy the' 
 Court that with reasonable diligence he could not 
 file the interrogatories within the time limited, in 
 the same manner as upon other applications for 
 an extension of the time of procedure. The ap- 
 plication wiU, it is presumed, be made in all cases, 
 like applications for time to answer, by taking 
 out a summons before the chief clerk at chambers. 
 See, however, the observations on the 20th Ge- 
 neral Order of the 7th of August 1852, infra, 
 p. 64. The first application for time to file the 
 interrogatories would probably be granted almost 
 as of course, particularly if made before the time 
 limited by the 16th General Order has expired. 
 If the time limited has expired before an enlarge- 
 ment is applied for, it might be necessary to sup- 
 port the application by some such formal affidavit 
 as is required with respect to amendments by the 
 67th of the Orders of May 1845. The Court 
 would not, it is presumed, keep a party very 
 strictly to the exact limit of time, if the pleadings 
 were voluminous, or if it were necessary first to 
 inspect documents, or if any reason of the like 
 
64 
 
 THE NEW CHANCERY PRACTICE. 
 
 What a 
 
 proper 
 
 delivery 
 
 of the 
 
 interruga 
 
 tories. 
 
 Bowen v. 
 Price 
 
 No farther 
 time to file 
 interroga- 
 tories with- 
 out special 
 leave of 
 the Court. 
 
 Whether 
 obtained 
 by motion 
 in Court 
 or at cham- 
 bers, 
 qutere. 
 
 kind could.be assigned for granting, the indul- 
 gence. 
 
 The merely leaving an office copy of the inter- 
 rogatories at the office of the defendant's solicitor 
 was held by Vice Chancellor Kindersley, in 
 Bowen v. Price, (a) with the concurrence of the 
 other Vice Chancellors, not to be a proper deli- 
 vering of a copy of the interrogatories within the 
 meaning of the 12th section of the New Pro- 
 cedure Act, 15 & 16 Vict. c. 86, and the 17th 
 Order of the 7th of August 1852. But upon the 
 case coming by way of appeal before the Lords 
 Justices, their Lordships dissented from this 
 view, and held the leaving of the copy at the 
 office of the solicitor to be sufficient, and that it 
 need not be served on the solicitor personally. (6) 
 
 By the 20th of the General Orders of the 7th of 
 August 1852, after the time allowed by the 16th 
 Order for filing interrogatories for the examination 
 of any defendant, no interrogatories are to be filed 
 for the examination of such defendant, without 
 special leave of the Court to be applied for upon 
 notice of motion. The terms of this 20th Order,, 
 referring to a notice of motion, seem to point to 
 an application made in open Court, and therefore 
 it may possibly be held that in this particular 
 case the application for an enlargement of the time 
 must be so made, though in general applications 
 
 (o) 1 Drewry, 307. 
 
 (i) 22 L. J. (K. s.) 179. 
 
INTEEKOGATORIES. 65 
 
 of this nature are disposed of at chambers. There 
 does not seem to be any very sufficient reason, 
 however, for the distinction, if any exists, be- 
 tween this and the preceding General Order, 
 particularly looking to the extent of the discre- 
 tion vested in the chief clerks with respect to 
 other proceedings. 
 
 A plaintiflF who has filed a written copy of his when 
 
 • ^ ■' interroga- 
 
 bill under section 6, may file interrogatories toriesmay 
 
 be filed 
 
 under section 12 before he has filed the printed before 
 copy, provided the time for filing such printed on the file. 
 copy has not expired. 
 
 Lambert v. Lomas. (a) In this case no order Lamh^HM. 
 
 ^ ' Lomas. 
 
 was made ; but the Vice Chancellor Turner di- 
 rected the registrar to take a note of the leave 
 to file the interrogatories having been granted. 
 
 Where an order of course was obtained under Form of 
 the former practice, giving liberty to the plaintiff exhibit 
 to exhibit further interrogatories for the exami- interroga- 
 nation of witnesses under the commission in the unXr 
 cause, it was usual to insert in the order a re- p°™t1ce. 
 striction that the plaintiff should not exhibit 
 further interrogatories to the witnesses already 
 examined ; though the want of these restrictive 
 words was not a ground for discharging the 
 order for irregularity. See Forbes v. Forbes, (b) 
 
 It has not been decided whether any similar 
 restrictive words would now be inserted in special 
 
 (a) 9 Hare, Appendix, .p. xxix. ; S. C. 22 L. J. (k. s.) 12, 
 (J) 9 Hare, Appendix, p. Ixxvii. 
 
66 THE NEW CHANCERY PRACTICE. 
 
 orders of the like kind under the new practice, 
 where the plaintiff obtains leave to go into a 
 further oral examination of witnesses before the 
 examiner, after the evidence is closed and the 
 depositions have been transmitted to the Record 
 Office and filed ; supposing indeed such an order 
 to be in any case obtainable. 
 
 Section 2. 
 
 Demurrer^ within what time, to original or supple- 
 mental bill or claim, to amended bill or claim, 
 costs of, when special order made instead of 
 merely allowing demurrer, plea, within what 
 time, to original or supplemental bill, to amended 
 bill, costs of, answer, within what time, when no 
 answer required, enlargement of time to answer, 
 time to answer supplemental matter under present 
 practice, frame of, paragraphs numbered, clerical 
 error in, must still be a full answer, negative 
 pregnant, traversing note, answer may contain 
 matter of defence, exceptions to, exceptions to 
 answer of plaintiff, costs of discov&^y, when 
 answer treated as an affidavit, commissions to 
 take answers and oath of messenger abolished, 
 answers sworn according to ancient form of 
 oath, answers sworn abroad. 
 
 Defendant By the, 13th sectiou of the New Procedure 
 
 may an- i k o -i /» T" nn 
 
 swerwith- Act, 15 & 16 V ict. c. 86, whether the plaintiff 
 
 out leave, 
 
d;emuerer. 67 
 
 requires any answer to the bill or not, the de- whether 
 fendant may, without any leave of the Court, oToT 
 put in a plea, answer, or demurrer, within the within 
 time allowed under the former practice for de- """" """*■ 
 murring alone; but after that time, a defendant 
 not required to answer, is not to be at liberty to 
 put in a plea, answer, or demurrer to the bill, 
 without the leave of the Court. 
 
 As no other time is fixed by the General stuiregu- 
 Orders of the 7th of August 1852, the time for Orders of 
 
 . . ° ' the 8th of 
 
 puttmg in a plea, answer, or demurrer where the May i845. 
 bill requires no answer, will be the time limited 
 by the 16th Order of May 1846, for demurring 
 alone, viz., twelve days from appearance; after 
 which time such a plea, answer, or demurrer 
 cannot be filed without leave of the Court. The 
 granting of further time to the defendant will 
 now not only suspend the filing of the replication, 
 but will also suspend the new right given to the 
 plaintiff by section 1 5 of the act, to move for a 
 decree; and it will have this effect, notwith- 
 standing that the answer, when filed, is to be 
 treated for the purposes of the motion merely as 
 an affidavit. 
 
 All applications of this kind will now be dis- 
 posed of by the chief clerk at chambers, under 
 the 26th section of the Master in Chancery 
 Abolition Act. 
 
 By the 16th General Order of the 8th of May Demurrer 
 
 withm whftt 
 
 1845, art. 10, a defendant may demur alone to time. 
 
 F 2 
 
68 THE NEW CHANCERY PRACTICE. 
 
 any bill within twelve days after his appearance 
 
 thereto, but not afterwards. 
 Time to The 16th General Order of the 8th of May 
 sweror"' 1845, art. 13, directed that a defendant should 
 not deinur- plead, answer or demur, not demurring alone, 
 to original to any original or supplemental bill, within six 
 'mentof ^ wceks after appearance thfereto had been entered 
 
 bill under , « i . 
 
 former by or lor him. 
 
 practice. j^. j^^ ^.^ ^^^^ ^^^ j£ j^^ procured no enlarge- 
 ment of the time allowed, he was subject to 
 the following liabilities: — 
 
 1. An attachment might be issued against 
 him ; 
 
 2. He might be committed to prison, and 
 brought to the bar of the Court ; and 
 
 3. The plaintiff might file a traversing note, 
 or proceed to have the bill taken pro con- 
 fesso againbt him. 
 
 To amend- The 16t.h General Order of the 8th of May 
 under for- 1845, art. 14, directed that if the plaintiff 
 amended his bill under an order for leave to 
 amend obtained and served before answer, 9 
 defendant was to plead, answer, or demur, not 
 demurring alone, to such amended bill, within 
 six weeks after he was served with notice of the 
 amendment of such bill. 
 
 If he did not, and if he procured no enlarge- 
 ment of the time allowed, he was subject to 
 the following liabilities : — 
 1. An attachment might be issued against 
 him; 
 
 mcr prac- 
 tice. 
 
DEMUKREB. 69 
 
 2. He might be committed to prison, and 
 brought to the bar of the Court ; 
 
 3. The plaintiff might file a traversing note, 
 or proceed to have the bill taken fro con- 
 fessp against him. 
 
 By art. 15 of the same Order, if a defendant Time to 
 was ordered to answer amendments and excep- amMd- 
 tions together, he was to put in his further ^ceptions 
 answer and his answer to the amendments of the mdei " 
 bill within four weeks after. he was served with pr^t^e. 
 notice of the amendment of such bill. 
 
 If he did not, and if he procured no enlarge- 
 ment of the time allowed, he was subject to 
 the following liabilities : — 
 
 1. An attachment might be issued against 
 him; 
 
 2. He might be committed to prison and 
 brought to the bar of the Court ^, 
 
 3. The plaintiff might tile a traversing note, 
 or proceed to take the bill pro confesso 
 against him. 
 
 By art. 16 of the same Order, if a defendant Time to 
 having already answered was served with a sub- svper or 
 pcena to appear to and answer an amended bill, amended 
 he was to plead, answer, or demur, not demurring answeAo 
 alone, to such amended bill, within four weeks, bu^'"* 
 after an appearance thereto had been entered by 
 or for him. 
 
 If he did not, and if he procured no enlarge- 
 
70 THE NEW CHANCERY iPEACTICE. 
 
 ment of the time allowed, he was subject to the 
 following liabilities : — 
 
 1. An attachment might be issued against 
 him; 
 
 2. He might be committed to prison, and 
 brought to the bar of the Court ; and 
 
 3. The plaintiff might file a traversing note, 
 or proceed to have the bill taken fra con- 
 fesso against him. 
 
 Setting The 16th General Order of the 8th of May 
 
 donn de- 
 
 murrer. 1845, art. 17, providcs that within twelve days 
 after the filing of a demurrer to the whole bill, 
 the plaintiff desiring to submit such demurrer to 
 the judgment of the Court is to cause the same 
 to be set down for argument. 
 
 If he does not, such demurrer is to be held 
 sufficient, and the plaintiff is to be held to 
 have submitted thereto. 
 Art. 18 of the same Order, provides that within 
 three weeks after the filing of a demurrer to part 
 of a bill, the plaintiff desiring to submit such 
 demurrer to the judgment of the Court is to 
 cause the same to be set down for argument. 
 If he does not, such demurrer is to be held 
 sufficient, and the plaintiff is to be held to 
 have submitted thereto. 
 Setting Art. 19 of the same Order provides that within 
 
 down plea. '■ 
 
 three weeks after the filing of a plea to the whole 
 or part of a bill, the plaintiff desirinfr to submit 
 
DBMURREE. 71 
 
 such plea to the judgment of the Court is to 
 cause the same to be set down for argument. 
 If he does not, such plea is to be held good to 
 the same extent and for the same purpose 
 as a plea allowed upon argument, and the 
 plaintiff is to be held to have submitted 
 thereto. 
 Where a simple^ order allowing a demurrer where 
 
 , , special 
 
 would not sufficiently establish the rights of the order made 
 
 1 • T r\ -n 11 1 instead of 
 
 parties in the suit, the Court will allow the merely 
 demurrer to be withdrawn, and make an order demurrer. 
 in such special form as may be required for the 
 purpose as upon a motion for a decree. Thus, 
 in Spurrell v. Spurrell, (a) where the suit was to SpurreUv. 
 determine the construction of a will, after some 
 discussion, the bill requiring alteration in some 
 material particulars ; it was arranged that the 
 demurrer should be withdrawn, that the bill 
 should be amended so as to correct the erroneous 
 statements, and supply some facts which were 
 wanting, and that the case should then be treated 
 as coming on upon a motion for a decree. 
 
 Upon that being done, an order was made 
 declaring that such of the brothers and sisters' of . 
 the testatrix as survived had become entitled to 
 the entirety of her residuary estate, and the 
 costs of all parties were ordered to be paid out 
 of the estate. See infra, notice of motion for 
 decree. 
 
 (a) 17 Jut. 755. 
 
72 THE NEW CHANCERY PKACTICE. 
 
 By the 44th General Order of the 8th of May 
 1845, a demurrer Or plea need not be entered 
 with the registrar; but upon the filing thereof 
 by a defendant either party is to be at liberty to 
 set the same down for argument immediately. 
 Costs of By the 45tii of the same Orders, where a de- 
 
 demurrer. ■' 
 
 murrer to the whole or part of a bill is allowed 
 upon argument, the plaintiff, unless the Court 
 orders to the contrary, is to pay to the demurring 
 party the costs of the demurrer^ and if the de- 
 murrer be to the whole bill the costs of the suit 
 also. 
 
 By the 46th of the same Orders, where a de- 
 murrer to the whole bill is not set down for 
 argument within twelve days after the filing 
 thereof, and the plaintiff does not within such 
 twelve days serve an order for leave to amend 
 the bill, the demurrer is to be held sufficient to 
 the same extent and for the same purposes, and 
 the plaintiff is to pay to the demurring party the 
 same costs, as in the case of a demurrer to the 
 whole bill allowed upon argument. 
 
 By the 47th of the same Orders, where a de- 
 murrer to part of a bill is not set down for 
 argument within three weeks after the filing 
 thereof, and the plaintiff does not within such 
 three weeks serve an order for leave to amend the 
 bill, the demurrer is to be held sufficient to the 
 same extent and for the same purposes, and the 
 plaintiff is to pay to the demurring party the 
 
PLEA. 73 
 
 same costs, as in the case of a demurrer to part of 
 a bill allowed upon argument. 
 
 By the 48th of the same Orders, where a plea Costs of 
 to the whole or part of a bill is allowed upon "* *"' 
 argument, the plaintiff, unless he undertakes to 
 reply to the plea, or the Court orders to the con- 
 trary, is to pay to the party by whom the plea is 
 filed the costs of the plea, and if the plea be to 
 the whole bill the costs of the suit also ; and in 
 such last-mentioned case the order allowng the 
 plea is to direct the dismissal of the bill. 
 
 By the 49 th of the same Orders, where a plea 
 to the whole part of a bill is not set down for argu- 
 ment within three weeks after the filing thereof, 
 and the plaintiff does not within such three weeks 
 serve an order for leave to amend the bill, or does 
 not within such three weeks by notice in writing 
 undertake to reply to the plea, the plea is to be 
 held good to the same extent, and for the same 
 purposes, and the same costs are to be paid by 
 the plaintiff, as in the case of a plea to the whole 
 or part of a bill allowed ^upon argument; and 
 where the plea is to the whole bill the defendant 
 by whom such plea was filed may at any time 
 after the expiration of such three weeks obtain as 
 of course an order to dismiss the bill. 
 
 By the 50th of the same Orders, the plaintiff 
 having undertaken to reply to a plea to the whole 
 bill, is not without the special leave of the Court 
 
74 THE NEW CHANCEKY PRACTICE. 
 
 to take any proceeding against the defendant by 
 whom the plea was filed till after replication. 
 Time to By the I9th of the General Orders of the 7th 
 
 plead, an- ■' , „ -■ • i , 
 
 sweror of August 1852, a defendant required to an swcp 
 
 demur, not . i . i j 
 
 demurring a Mil Hiust put in his plea, answer or demurrer 
 under pre- thereto HOt demurring alonc within fourteen days 
 senj;prac- ^^^^ ^^^ dcliveiy to him or his solicitor of a copy 
 of the interrogatories which he is required to 
 answer, but the Court is to have full power to 
 enlarge the time from time to time upon applica- 
 tion being made to the Court for that purpose. 
 Appiica- The application, notwithstanding the terms of 
 
 tions for '^': ■, • r\ 
 
 enlarge- this Order, IS not to be made in open Court, but 
 
 ment of ^ • i c i 
 
 time to be by taking out a summons for time before the 
 
 ciiambers. chief clerk at chambers. 
 
 Under the 44th General Order of the 7th of 
 August 1862, the same rules would apply to the 
 answer to amendments made in a bill, or to sup- 
 plemental statements annexed to a bill according 
 to the 53rd section of the New Procedure Act, 
 15 & 16 Vict. c. 86, as would apply to a sub- 
 stantive independent proceeding by distinct sup- 
 plemental bill. 
 
 Time to The time allowed to answer the interrogatorieB 
 
 answer /. i i i i • 
 
 supple- founded on the new supplemental matter, would, 
 
 mental , , • j i i . 
 
 matter. it IS coucBived, be the Same as m the case of an 
 original bill, viz. fourteen days. See 16th Order 
 of May 1845, allowing the same time for a sup- 
 plemental as for an original bill. 
 
ANSWER. 75 
 
 It is remarkable that although a defendant has Plaintiff 
 now only fourteen days to prepare and file his weeks to 
 answer, the plaratifF it would appear has still six ^^"^^ 
 weeks to except to it, and four weeks more to 
 file replication; the time allowed by the 16th 
 Order of May 1845, art. 31 and 37, and by the 
 8th Order of the 2nd of November 1850, not 
 being varied by the General Orders of August 
 1852. 
 
 Perhaps this may require to be modified by 
 some further General Order, as to original bills as 
 well as statements in the nature of supplemental 
 bills. 
 
 By the 16th Order of May 1845, art. 14 and Time to 
 
 ■' ■' answer 
 
 16, the defendant had under the former practice amended 
 
 , bill under 
 
 for filing his answer to an amended bill, either oidprac- 
 six weeks after notice of the amendment, or four 
 :v^eeks from his appearance to the amended biU, 
 according as the amendments were made before 
 or after answer to the original bill. 
 
 Neither the New Procedure Act nor the Ge- when 
 
 . amend- 
 
 neral Orders contam any provision as to the time ments and 
 of serving the defendant with a copy of the mental 
 amendments or supplemental statements of the ™e*served. 
 time of giving him notice of their being filed. It 
 is presumed that as in the case of replications, 
 such service or notice ought to be on the same 
 day as the filing. The time of filing interroga- 
 tories as to the amendments or annexed supple- 
 mental matter, Avould probably date from the time 
 
76 THE NEW CHANCERY PRACTICE. 
 
 of such service, but there is no express regulation 
 
 on the point. 
 Time to It is prcsumcd that the word " Bill," in the 
 amTnd- 19th of the General Orders of August 1852, would 
 
 inents and , , . , . • . i 
 
 supple- be construed to mean, either an original or an 
 matternow. amended bill, and if so, the time to answer an 
 amended bill, or annexed supplemental state- 
 ment, would be fourteen days in every case, 
 whether a previous answer had been filed or not. 
 Traverse of If no answer is required to the supplemental 
 meutai Statement, the defendant will, it is presumed, 
 where no without filing any answer to it be considered, in 
 required, the Same manner as under section 26, to have 
 
 traversed the new case so made. 
 Time of It should be noticed, though not so imme- 
 
 closing the , , , , 
 
 evidence, diatcly bearing on this section, that the time for 
 the closing of the evidence is now under the 32nd 
 of the Greneral Orders of August nine weel^, 
 whilst under the 16th Order of May 1845, art. 
 44, publication passed at the end of two months 
 from the filing of the replication, so that a longer 
 time is now allowed, and properly allowed, for 
 getting up the evidence, though the time for 
 taking other steps in the cause is much abridged. 
 
 Frame of By the 14th section of the New Procedure Act, 
 15 & 16 Vict. c. 86, the answer of a defendant to 
 any bill may contain matter of defence, as well as 
 the mere answer to the interrogatories. The 
 answer as well as the bill is to be divided into 
 paragraphs, numbered consecutively, each para- 
 
 answer. 
 
ANSWRR. 77 
 
 graph containing, as nearly as may be, a separate 
 and distinct statement or allegation. The pro- 
 visions in the 14th section of the act, as to the 
 answer containing matter of defence in support 
 of the defendant's own case, as well as matter of 
 discovery in aid of the plaintiff's case, leave the 
 practice with respect to the frame of answers the 
 same as before. 
 
 A short form of answer is given in Schedule D. 
 to the late General Orders, 7th August 1852, 
 and see also the 21st of those Orders, and see 
 m/ra, Appendix of Forms. 
 
 A slieht clerical error in the title or heading of clerical 
 
 ° , error m 
 
 an answer will not be material, nor prevent the answer, 
 answer being filed, if the error is not such as to 
 create any uncerta,inty, or to occasion difficulty 
 in identifying the cause in which the answer is 
 sworn. Thus, in Rabheih v. Squire, (a) where in Ramth^. 
 
 1111 • Squire. 
 
 the heading of an answer there had been an omis- 
 sion of the words " to the bill of complaint of the 
 above named plaintiffs," the answer being pro- 
 perly intituled in the cause, in the form specified 
 by the General Orders, in which form the plain- 
 tiffs and defendants are all named ; the Vice 
 Chancellor Wood held, that it must be taken to 
 be an answer to the plaintiff's bill in that cause, 
 and it was ordered to be filed notwithstanding 
 the omission of the above words in the heading. 
 
 (a) 10 Hare, Appendix, p. iii. 
 
78 THE NEW CHANCERY PRACTICE. 
 
 The folio-wing rules with respect to the filing 
 of a traversing note were contained in the General 
 Orders of the 8th of May 1845. 
 
 Traversing lOrdcr LII. After the expiration of the time 
 allowed to a defendant to plead, answer, or demur 
 (not demurring alone) to any original or supple- 
 mental bill or biU amended before answer, if such 
 
 Upon dc defendant has filed no plea, answer, or demurrer, 
 
 fault of 
 
 answering the plaintiff may file a note at the record and 
 
 supple- writ clerk's office to the following effect : " The 
 
 plaintiff intends to proceed with his cause as if 
 
 the defendant had filed an answer traversing the 
 
 case made by the bill." 
 
 Ditto, upon LTII. After the expiration of the time allowed 
 
 amended '- 
 
 *>'!• to plead, answer, or demur, not demurring alone, 
 
 to a bill amended after answer, the plaintiff (if a 
 defendant has not filed any plea, answer, or de- 
 murrer) may file a note at the record and writ 
 clerk's office to the following effect : " The plain- 
 tiff intends to proceed with his cause as if the 
 defendant had filed an answer traversing the 
 allegations introduced into the bill by amend- 
 ment." 
 
 After LIV. After the expiration of the time allowed 
 
 insufficient n j? i • i ■ /• 
 
 answer. to a defendant to put m his further answer to any 
 bill, the plaintiff (if such defendant shall not have 
 put in any further answer) may file a note at the 
 record and writ clerk's office to the following 
 effect: "The plaintiff intends to proceed with 
 his cause as if the defendant had filed a further 
 
ANSWER. 79 
 
 answer traversing the allegations in the bill 
 whereon the exceptions are founded." 
 
 LV. Where a demurrer or plea to the whole Ditto, upon 
 bill is overruled, the plaintiflF, if he does not pUaT""^ 
 require an answer, may immediately file his note **"""""■ 
 in manner directed by Orders LII or LIII, as 
 the case may require, and with the same effect, 
 unless the Court, upoq overruling such demurrer 
 of plea, gives time to the defendant to plead, 
 answer, or demur; and in such case, if the de- 
 fendant files no plea, answer, or demurrer within 
 the time so allowed by the Court, the plaintiff, if 
 he does not then require an answer, may on the 
 expiration of such time file such note. 
 
 L VI. A traversing note having been filed, a Copy of 
 copy thereof is to be served on the defendant nMrto bf 
 against whom the same is filed, in the manner ^""^ ' 
 directed by the nineteenth and twenty-first of 
 the Orders of the 26th October 1842, for the 
 service of documents not requiring personal 
 service, (a) 
 
 LVII. A traversing note being filed, and a Effect of 
 copy thereof duly served, is to have the same note! '"^ 
 eifect as if a defendant had filed a full answer 
 or further answer traversing the whole bill, or 
 
 (a) Where no step has been taken to defend, the Court 
 would make an order to serve the defendant personally with 
 a copy of the traversing note. lAdstone v. Wingrelt, decided 
 by the Lord Justice Knight Bruce, when Vice Chancellor, 
 on the 4th of November, 1850. 
 
80 THE NEW CHANCERY PRACTICE. 
 
 such parts of the bill as the note relates to, on 
 
 the day on which the note was filed. 
 
 After scr. L VIII. After the service of the copy of a tra- 
 
 fcndant not vcrsing note filed as aforesaid, a defendant is not 
 
 answer or at liberty to plead, answer, or demur to a bill, or 
 
 without to put in any further answer thereto, without the 
 
 leave* Special leave of the Court, and the cause is to 
 
 stand in the same situation as if such defendant 
 
 had filed a full answer or further answer to the 
 
 bill on the day on which the note was filed. 
 
 The defendant will not now be required to file 
 
 an answer, or to file a traversing note, merely for 
 
 the purpose of traversing the case made by the bill, 
 
 as that wiU be the construction put upon his filing 
 
 Use of no answer. The traversing note will now seldom 
 
 traversing ^ . , 
 
 note now. if evcr be used, though the use of it is not for- 
 mally abolished. The defendant will in no case 
 file an answer under the new practice, unless he 
 is either required to do so by the bill or he is 
 desirous of introducing into it defensive matter 
 in support of his own case. It is probable how- 
 ever that in contested suits, involving disputed > 
 facts, an answer of some kind would in general 
 be filed. The 19th General Order of the 7th of 
 August 1852, will materially shorten the time 
 for putting in an answer. See Order XVI, May 
 1845, art. 13. 
 Answer The interrogatories must still be answered as 
 
 be a full fully and technically as under the old practice, 
 
 answer. 
 
INTERROGATORIES. 81 
 
 and the answer must still traverse with accuracy 
 such parts of the interrogatories as are not in- 
 tended to be admitted. In Patrick v. Black- Pat,kkv. 
 well, (a) it was argued on exceptions for insuffi- 
 ciency, that since the late Orders the particularity 
 formerly required in answers was required no 
 longer, and that the plaintiff might, if he pleased, 
 caU the defendant and examine him in Court; 
 but the Vice Chancellor Wood said he did not 
 see why, under the new Orders, the old form of 
 answering should not be followed. If the de- 
 fendant denied any statement in the bill, he must 
 not do so by a negative pregnant, ffe could not 
 be allowed to do so, even if no interrogatories at all 
 had been exhibited. 
 
 This last observation however of the learned 
 Judge, if correctly reported, must not, it is pre- 
 sumed, be taken to mean that the answer could 
 be excepted to in such a case. No weight would 
 of course be attached to a denial by way of nega- 
 tive pregnant. 
 
 By the 8th of the Greneral Orders of the 2nd of Exceptions 
 November 1850, after the filing of a defendant's foHmuffi. 
 answer, the plaintiff has six weeks within which 
 he may file exceptions thereto for insufficiency. 
 
 If he does not file exceptions within six weeks, 
 such answer on the expiration of the six 
 weeks is to be deemed sufficient. 
 
 (a) 17 Jut. 803. 
 G 
 
 ciencv. 
 
82 THE NEW CHANCERY PRACTICE. 
 
 Py the 9th of the same Orders, a defendant 
 desiring to prerent exceptions to his answer for 
 insufficiency being set down for hearing, has for 
 that purpose only eight days after the filing of 
 such exceptions within which he may submit to 
 the same. 
 
 By the 10th of the same Orders, if a defendant 
 not being in contempt submits to exceptions to 
 his answer for insufficiency before the plaintiff 
 has set them down for hearing, he is allowed 
 three weeks from the date of the submission 
 within which he is to put his further answer to 
 the biU. 
 
 By the 11th of the same Orders, the plaintiff 
 having filed exceptions for insufficiency to a 
 defendant's answer is not to set them down for 
 hearing before the expiration of eight days from 
 the filing of such exceptions, unless in a case of 
 election he is required by notice in writing from 
 such defendant to set them down in four days 
 pursuant to the 13th of these Orders, or in 
 a case where the common injunction may be 
 obtained or retained on the' allowance of such 
 exceptions. 
 For scan- gy ^^^ jgth of the Same Orders, exceptions to 
 answers for insufficiency, or to any pleading or 
 other matter depending before the Court for 
 scandal, will in future be set down for hearing 
 by the registrar at the request of the party filing 
 the same upon the production of a certificate of 
 
INTEEROGATORIES. 83 
 
 the clerk of records and writs of the filing of 
 such exceptions ; or (in the case of exceptions to 
 an answer for insuflficiency) of the filing of a 
 further answer, and the same are to be advanced 
 and put in the paper for hearing on an early day, 
 and the party setting down any such exceptions 
 shall on the day on which the same shall be so 
 set down serve a ndtice thereof on the party 
 whose pleading or other matter is excepted to, 
 otherwise the said exceptions shall be deemed 
 not set down. 
 
 By the 13th of the same Orders, a defendant, 
 whose answer is excepted to alleging that the 
 plaintiff is prosecuting him in this Court and 
 also at law for the same matter, may by notice 
 in writing require the plaintiff to set down the 
 exceptions within four days from the service of 
 the notice. 
 
 And if the plaintiff does not set down such 
 exceptions within such four days, such de- 
 fendant is entitled as of course, on motion 
 or petition, to obtain the usual order for 
 the plaintiff to make his election in which 
 Court he will proceed. 
 
 By the 14th of the same Orders, the plaintiff Setting 
 
 • <vi . 1 down ex- 
 
 having filed exceptions for insufficiency to a de- ceptions. 
 
 fendant's answer is to set them down for hearing 
 
 after the expiration of eight days, but within 
 
 fourteen days from the filing of such exceptions, 
 
 G 2 
 
84 THE NEW CHANCERY PKACTICE. 
 
 If he does not, the answer on the expiration 
 of such fourteen days is to be deemed suffi- 
 cient. 
 By the 16th of the same Orders, after the 
 filing of exceptions to a defendant's answer for 
 insufficiency, and any further answer put in, the 
 plaintiff has fourteen days from the filing of such 
 further answer within which he may set down 
 the old exceptions. 
 
 If the old exceptions be not set down within 
 fourteen days after such further answer put 
 in, the answer is on the expiration of such 
 fourteen days to be deemed sufficient. 
 By the 17th of the same Orders, after ex- 
 ceptions to an answer for insufficiency are set 
 down for hearing, if a defendant not being in 
 contempt submits to answer, or the Court holds 
 the answer to be insufficient, the Court may in 
 such cases appoint the time within which such 
 defendant is to put in his further answer. 
 
 If such defendant does not obtain time from 
 the Court, or does not answer within the 
 time which the Court allows, the plaintiff 
 may sue out process of contempt against 
 such defendant. 
 When By the 18th of the same Orders, the answer of 
 
 answer '<>,„,. 
 
 be deemed a defendant is to be deemed sufficient 
 
 sufficient. . „ 
 
 1. If no exception for insufficiency be filed 
 thereto within six weeks after the filing of 
 such answer. 
 
INTERBOGATOEIES. 
 
 85 
 
 2. If exceptions being filed the plaintiff does 
 not set them down for hearing within four- 
 teen days after the filing thereof. 
 
 3. If within fourteen days after the filing of a 
 further answer, the plaintiff does not set 
 down the old exceptions. 
 
 By the 19th of the same Orders, if after a 
 defendant's second an^ third answer is filed the 
 plaintiff sets down the old exceptions for insuffi- 
 ciency, then the particular exception or excep- 
 tions to which he requires a further answer is or 
 are to be stated in the notice of setting down 
 such exceptions. 
 
 By the 20th of the same Orders, if upon the 
 hearing of exceptions the answer be held suffi- 
 cient, it shall be deemed to be so from the date 
 of the Order made on the hearing ; and if the de- 
 fendant submit to answer without an order from 
 the Court, the answer shall be deemed insufficient 
 from the date of the submission. 
 
 By the 21st of the same Orders, the Court 
 holding a first or second answer to be insufficient, 
 may appoint the time within which a defendant 
 who is not in contempt, is to file a further 
 answer. 
 
 By the 22nd of the same Orders, upon a third when 
 
 •' . . /N deiennant 
 
 answer being held to be insufficient, the Court to stand 
 
 *-' , coinmittea 
 
 may order the defendant to be exammed upon for want of 
 
 • 1 T T 1 • jn answer. 
 
 interrogatories to the pomts held to be insuffi- 
 cient, and to stand committed until he shall have 
 perfectly answered the interrogatories; and the 
 
86 THE NEW CHANCERY PRACTICE. 
 
 defendant is to pay such costs as the Court shall 
 think fit to award. 
 
 By the 23rd of the same Orders, no pleading 
 or other matter depending before the Court is in 
 future to be set down for hearing for scandal 
 unless exceptions are taken in writing and signed 
 by counsel, describing the particular passages 
 which are alleged to be scandalous. 
 When ex. By the 24th of the same Orders, where any 
 be deemed pcrson or party having filed exceptions to any 
 pleading or other matter depending before the 
 Court for scandal, and any person or party having 
 filed such exceptions for impertinence, does not 
 set the same down for hearing within six days 
 after the filing thereof, such exceptions are to 
 be considered as abandoned, and the person or 
 party by whom such exceptions were filed is to 
 pay to the opposite party such costs as may 
 have been incurred by such party in respect of 
 such exceptions. 
 Scandalous By the 25th of the same Orders, the practice in 
 puV"!^ future will be with respect to exceptions for 
 scandal, that upon the production of an order, 
 made upon its being held that any pleading or 
 other matter depending before the Court is scan- 
 dalous, the ofiicer having the custody or charge 
 of such pleading or other matter, will expunge 
 from such pleading or other matter such parts 
 thereof as the Court has held to be scandalous, 
 and thereupon the person or party requiring such 
 scandalous matter to be expunged, is to pay to 
 
INTERROGATORIES. 87 
 
 the officer expunging the same the same fees as 
 on the like occasion has heretofore been paid. 
 
 By the 19th section of the New Procedure Act, interroga- 
 
 1 /« TT- n/» T <> 1 1 Ml tories for 
 
 15 & 16 Vict. c. 86, a defendant to a bill or examina.. 
 claim is to be at liberty, instead of filing any plaintiff by 
 cross bUl of discovery, to file interrogatories for * * 
 the examination of the plaintiff, who is to be 
 bound to answer such interrogatories in like 
 manner as if they had been contained in a bill of 
 discovery filed by the defendant, and the prac- Same rules 
 tice of the Court with reference to excepting astoex- 
 
 , /«.»«• o 1 1 ' I ceptions to 
 
 to answers tor insumciency or for scandal, is to plaintiff's 
 extend and be applicable to answers put in to 
 such interrogatories. 
 
 In Sibbald v. Laurie, (a) the Appeal Court Leave 
 
 ^ ' ^ ^ '■ . given to 
 
 gave leave to a defendant to file interrogatories defendant 
 for the examination of the plaintiff, although the interro- 
 time for taking exceptions to the defendant's though 
 answer had not expired. The Lord Justice excepting 
 Knight Bruce however observed, that the de- had^oT"^ 
 fendant would file them at the risk of their ^^^^^J^ 
 being taken off the file with costs, if the answer ^°"™ 
 were found to be insufficient. 
 
 It was always a hardship on the defendant 
 under the former practice that he could not ob- 
 tain discovery as to facts or documents except 
 through the somewhat cumbrous and costly 
 machinery of a cross bill. This necessity is now 
 done away as to defendants in all suits, whether 
 (a) 20 L. T. 320. 
 
88 THE NEW CHANCEEY PBACTICE. 
 
 commenced by bill or claim, though a defendant 
 may still resort to that mode of obtaining dis- 
 covery if he thinks fit. He wiU probably not 
 often avail himself of the privilege, unless his cross 
 bill also goes to relief, as well as discovery, (a) 
 In lieu of 'pj^ defendant to a bill or claim will now 
 
 cross Dili. 
 
 obtain all the benefits of a cross bill, by merely 
 filing interrogatories in the record office, without 
 any previous pleadings or other preliminary 
 proceedings, taking care only to prefix to his 
 interrogatories, with a view, it is presumed, to 
 convenience and not as in the nature of a pleading, 
 a concise statement of the subjects on which a 
 discovery is sought. 
 
 For the purpose of determining questions of 
 materiality or relevancy, the Court will have to 
 look at the pleadings in the original suit, to see 
 what points are in issue; and in deciding; on 
 exceptions for insufficiency, the question will be 
 whether the interrogatories are pertinent to the 
 issue so raised. Any inquiries which might, 
 according to the rules of the Court under the 
 former practice, have been strictly and regularly 
 introduced into a cross bill, may now be com- 
 prised in the interrogatories to be filed by the 
 defendant ; and those, it is conceived, the plaintiff 
 in the original suit will be bound to answer, but 
 nothing more. 
 Varjmg Under the former practice, if the defendant's 
 
 (a) See Appendix of Forms for Torms of Cross Bills, infra. 
 
INTERBOGATOKIES. . 89 
 
 bill in any way varied the issue raised by the 
 original bill, it was not strictly a cross bill, and 
 the rules as to the evidence in cross suits would 
 not apply : for example, the common order as of 
 course to read in the cross suit the depositions 
 taken in the original suit, could not be obtained ; 
 or, if obtained, it might be discharged for irre- 
 gularity; and at all events, it would seem, even 
 if the order stood, the depositions could not be 
 read, though the proper course was to discharge 
 the order. See Christian v. Wren, (a) It is 
 presumed that these rules would apply still. See 
 also Pascall v. Scott, (b) As the Court now 
 attaches less value to the secrecy of the evidence, 
 the doctrine of Pascall v. Scott, supposing such a 
 question could now arise, would probably be 
 modified under the new practice. 
 
 It does not follow because formal pleadings in Prefixed 
 
 statement. 
 
 the cross suit are dispensed with, that a defendant 
 is therefore altogether lege solutus, and at liberty 
 to ask any roving questions or go into evidence 
 on any extraneous matters he may think fit. 
 Neither must he rely on the prefixed statement, 
 as in any way extending the original issue, or as 
 entitling him to travel out of that issue in his line 
 of examination or evidence, any more than if 
 there were no prefixed statement at all. In fact 
 the precise functions of this prefixed statement 
 
 (a) Bunbury's Eeports, 321. 
 (J) 1 PhU. 110. 
 
90 THE NEW CHANCERY PRACTICE. 
 
 are not very apparent, except as exhibiting at a 
 glance both to the plaintiff and to the Court, what 
 is the main scope and aim of the defendant's 
 interrogatories. If the interrogatories were to 
 be filed without any such prefixed statement, the 
 want of it would not, it is conceived, pet' se, be 
 held sufficient ground for demurring to answer 
 the interrogatories, nor perhaps for a motion to 
 take them off the file. Still, as it is required 
 by the act, the defendant should of course not 
 disregard it. 
 
 Under section 60 of the New Procedure Act, 
 it would no doubt be competent to the Courtj to 
 suspend the proceedings on the interrogatories, 
 until the defendant had filed such a statement ; 
 and the Court would probably take that course, 
 with costs of the application to be paid by the 
 defendant, if any obscurity or ambiguity as to 
 the drift of his interrogatories arose from the 
 want of it. 
 Priority Whcrc au answcr is required in the original 
 
 of suit. • 1 T r" T • 1 • • 1 
 
 suit, the defendant must put m his answer in that 
 suit, before he is at liberty to file interrogatories. 
 This is so far similar to the former practice, that 
 although a defendant could file a cross bill at any 
 time, he could enforce no answer to it, until he 
 had answered the original bill fully. The plain- 
 tiff who filed the first bill, had priority of suit, 
 and was entitled to the first answer. This pri- 
 ority might be lost by amendment, and for the 
 
INTERROGATOBIES. 91 
 
 same reason now, the plaintiflF, if in want of an 
 answer at once, should be careful of amending 
 his bill after the defendant's interrogatories are 
 on the file. Questions as to priority of suit very 
 rarely occurred. A motion of that kind was 
 made in a suit of Haig v. Gray, and heard in 
 three different Courts, at the Rolls, before the 
 Vice Chancellor Knight Bruce, and on appeal 
 before Lord Truro, who however went out of 
 office before delivering judgment. The decision 
 at the Rolls with which Vice Chancellor Knight 
 Bruce agreed is reported 13 Beav. 65. It is 
 believed there is hardly another instance of the 
 kind to be found since the time of Lord Hard- 
 wicke. 
 
 Under the old practice, upon putting in an Costs of 
 
 uiscovcrv 
 
 answer to a bill of discovery, the defendant 
 obtained an order for his costs, as a matter of 
 course. Now that the interrogatories are separate 
 from the bill, a case might arise where after filing 
 a bill of discovery, the plaintiff getting all he 
 wanted, by means of a motion for an injunction^ 
 or some other interlocutory proceeding, might 
 not proceed to file his interrogatories. 
 
 In such a case, the practice of the Court would, mtzgeraut 
 of course, not fail of giving the defendant his 
 costs. See Fitzgerald v. Bult. (a) 
 
 By the 21st section of the New Procedure Act, Commis- 
 
 15 & 16 Vict. c. 86, the former practice of issuing take an- 
 swers 
 (o) 9 Hare, Appendix, p. Ixv. 
 
92 THE NEW CHANCERY PRACTICE. 
 
 within the commissions to take pleas, answers, disclaimers, 
 abolished! and examinations, within the jurisdiction of the 
 Court, is now abolished; and any such plea, 
 answer, disclaimer or examination may be filed, 
 without any further or other formality, than is 
 required in the swearing and filing of an afiidavit. 
 See infra, Chapter V., as to the construction of 
 this section. 
 
 Commissions to take pleas, answers and dis- 
 claimers, were attended with the payment of 
 many fees and charges, of a rather extortionate 
 and oppressive kind. Still more was this the 
 case with respect to examinations or depositions.- 
 Commissions for this purpose were attended with 
 an unusual degree of formality and a correspond- 
 ing expense. And the occasion of this arose 
 from the extreme and almost unaccountable 
 jealousy with which Courts of Equity sought 
 to preserve the secrecy of the evidence until 
 publication, i. e. until the evidence on both sides 
 was concluded. All the principal witnesses ex- 
 amined before the Chancery Commission now 
 seem to agree that this secrecy for which so much 
 was paid, was of little or no value. Depositions 
 or examinations are hereafter to be taken and 
 filed, with no other formality, than affidavits. 
 Sec. 25 of the act is to the same effect, dis- 
 pensing with the oath of the messenger. 
 Answers Although auswcrs are now sworn and filed 
 
 still sworn 
 
 according with no Other formality than aflSdavits, yet they 
 
INTERROGATORIES. 93 
 
 are still sworn according to the form oi oath to ancient 
 previously in use on putting in answer. The oath. 
 point arose in Attorney General v. Hudson, (a) Attorney 
 The old form of oath was this, — " You swear that Hudmn. 
 what is contained in this your answer as far as 
 concerns your own act and deed is true to your 
 own knowledge, and that what relates to the act 
 and deed of any other person or persons yoii 
 believe to be true." Since the stat. 15 & 16 
 Vict. c. 86, by the 21st section of which it is 
 enacted, that the practice of the Court of issuing 
 commissions to take answers, &c. within the 
 jurisdiction should be abolished, and that any 
 such answer, &c. may be filed without any further 
 or other formality, than is required in the swear- 
 ing and filing of an affidavit; the officers had 
 required that answers should be sworn in the 
 same form as affidavits, whereby the deposition was 
 taken to the truth of the answer generally. The 
 Vice Chancellor Wood said, he had communicated 
 with two of the other Judges, and they were all 
 clearly of opinion that the act did not prescribe » 
 any alteration in the form of the oath of a 
 defendant to be used on swearing an answer, 
 and that it ought to be sworn according to the 
 ancient form. 
 
 Bv the 22nd section of the New Procedure Answers 
 
 •' ^. and aifida- 
 
 Act 15 & 16 Vict. c. 86, all pleas, answers, dis- vitsswom 
 
 ' in the Bri- 
 
 (fls) 9 Hare, Appendix, p. kiii. 
 
94 THE NEW CHANCERY PRACTICE. 
 
 tishcoio- claimers, examinations, and affidavits, and also 
 
 nies or 
 
 in foreign acknowledgments, required for the purpose of 
 enrolling any deed, may be sworn and taken in 
 Scotland or Ireland, or the Channel Islands, or 
 in any colony, island, plantation or place, under 
 the dominion of her Majesty in foreign parts, 
 before any judge, court, notary public, or person, 
 lawfully authorized to administer oaths in such 
 country, colony, island, plantation or place re- 
 spectively, or before any of her Majesty's consuls, 
 or vice-consuls, in any foreign parts out of her 
 Majesty's dominions ; and the Judges and other 
 officers of the Court of Chancery are to take 
 judicial notice of the seal or signature, as the 
 case may be, of any such court, judge, notary, 
 public person, consul or vice-consul, attached, 
 appended, or subscribed thereto. See infra, 
 Chapter v., as to the construction of this section. 
 
 Oath of By the 25th~ section of the New Procedure 
 
 messenger -id tt« 
 
 dispensed Act, 15 & 16 Vict. c. 86, pleas, answers, dis- 
 
 with. , . . . , , , 
 
 claimers or examinations, whether taken by com- 
 mission out of the jurisdiction or otherwise, may 
 be filed without the oath of a messenger, and any 
 alterations made therein, previously to the taking 
 thereof, are to be authenticated according to the 
 practice in use with respect to affidavits. 
 
CLAIMS. 95 
 
 CHAPTER III. 
 Section 1. 
 
 CLAIMS. 
 
 General Bules and Orders of the 22nd of 
 April 1850 will still regulate the practice 
 on claims and which are not abolished, rules 
 as to proceedings before the Master to be read 
 since the Master Abolition Act with reference 
 to the like proceedings at Judges' chambers, 
 printed copy claim now substituted for the writ 
 of summons which is abolished, proceedings 
 consequent on the service of the printed copy 
 claim the same as upon the service of the writ of 
 summons under the former practice. 
 
 The practice with respect to claims, is settled 
 by the following General Orders and Rules of the 
 High Court of Chancery, which were issued on 
 the 22nd day of April 1850. 
 
 By the 1st of such General Orders, any person 
 seeking equitable relief may, without special leave 
 of the Court, and instead of proceeding by bill of 
 
96 THE NEW CHANCERY PRACTICE. 
 
 complaint in the usual form, file a claim in the 
 record and writ clerk's ofiice, in any of the follow- 
 ing cases; that is to say, in any case where the 
 plaintiff is or claims to be, 
 
 1. A creditor upon the estate of any deceased 
 person, seeking payment of his debt out of 
 the deceased's personal assets. 
 
 2. A legatee under the will of any deceased 
 person, seeking payment or delivery of his 
 legacy out of the deceased's personal assets. 
 
 3. A residuary legatee, or one of the residuary 
 legatees, of any deceased person, seeking an 
 account of the residue and payment or ap- 
 propriation of his share therein, 
 
 4. The person or any of the persons entitled 
 to the personal estate of any person who 
 may have died intestate, and seeking an 
 account of such personal estate and pay- 
 ment of his share thereof. 
 
 5. An executor or administrator of any de- 
 ceased person, seeking to have the personal 
 estate of such deceased person administered 
 under the directions of the Court. 
 
 6. A legal or equitable mortgagee or person 
 entitled to a lien as security for a debt, 
 seeking foreclosure or sale, or otherwise to 
 enforce his security. 
 
 7. A person entitled to redeem any legal or 
 equitable mortgage or any lien, seeking to 
 redeem the same. 
 
CLAIMS. 97 
 
 8. A person entitled to the specific perform- 
 ance of an agreement for the sale or purchase 
 of any property, seeking such specific per- 
 formance. 
 
 9. A person entitled to an account of the 
 dealings and transactions of a partnership 
 dissolved or expired, seeking such account. 
 
 10. A person entitled to an equitable estate or 
 interest, and seeking to use the name of his 
 trustee in prosecuting an action for his own 
 sole benefit. 
 
 11. A person entitled to have a new trustee 
 appointed in a case where there is no power 
 in the instrument creating the trusts to 
 appoint new trustees, or where the power 
 cannot be exercised, and seeking to appoint 
 a new trustee. 
 
 By the 2nd General Order of the 22nd of 
 April 1850, such claim in the several cases enu- 
 merated in Order I, is to be in the form and to 
 the efifect set forth in schedule (A) to those 
 Orders, as applicable to the particular case, and 
 the filing of such claim is, in all cases not other- 
 wise provided for, to have the force and eflfect of 
 filing a bill. 
 
 By the 3rd of the same General Orders, every 
 such claim is to be marked at or near the top or 
 upper part thereof in the same manner as a bill 
 is now marked with the name of the Lord Chan- 
 cellor, and one of the Vice Chancellors, or with 
 the name of the Master of the Rolls. 
 
 H 
 
98 THE NEW CHANCERY PRACTICE. 
 
 By the 4th of the same General Orders, upon 
 filing such claim the plaintiff thereby claiming 
 might sue out a writ of summons against the 
 defendant to the claim, requiring him to cause an 
 appearance to be entered to such writ, and also 
 requiring him, on a day or time to be therein 
 named, or on the seal or motion day then next 
 following, to shew cause, if he could, why such 
 relief as is claimed by the plaintiff should not be 
 had, or why such order as should be just with 
 reference to the claim should not be made. The 
 writ of summons, however, on a claim is now 
 abolished by the 2nd section of the New Proce- 
 dure Act, 15 & 16 Vict. c. 86. See supra, p. 17. 
 It is immaterial, therefore, to consider the fonii 
 of this writ, which is prescribed by the 5th 
 General Order of April 1850. 
 
 By the 6th of the General Orders of the 22nd 
 of April 1&50, in any case, other than those 
 enumerated in Order I, or in any case to which 
 the forms set forth in schedule (A) are not appli- 
 cable, the Court (if it shall so think fit) may, 
 upon the ex parte application of any person seek- 
 ing equitable relief, and upon reading the claim 
 proposed to be filed, give leave to file such claims 
 and if such leave be given, an endorsement 
 thereof by the registrar upon the proposed claim 
 shall be a sufficient authority for the record and 
 writ clerk to receive and file such claim. 
 
 By the 7th of the same General Orders, in the 
 case provided for by the 5th article of Order I. 
 
CLAIMS. 99 
 
 any one person who, under the 3rd or 4th article 
 of Order I, might have claimed relief against the 
 executor or administrator of the deceased person 
 whose personal estate is sought to be adminis- 
 tered, and the co-executor or co-administrator 
 (if any) of the plaintiff, may be defendants to the 
 suit; and in the first instance no other person 
 need be defendant thereto. 
 
 By the 8th of the same Greneral Orders, in other 
 cases the only person who need be defendant to 
 the suit in the first instance is the person against 
 whom the relief is directly claimed. 
 
 By the 9th of the same General Orders, all 
 claims, and all writs, caveats, proceedings, direc- 
 tions, and orders consequent thereon, are to be 
 deemed proceedings, writs, and orders subject to 
 the general rules, orders, and practice of the 
 Court, so far as the same are or may be^pplicable 
 to each particular case and consistent with those 
 orders ; and aU orders of the Court made in such 
 proceedings are to be enforced in the same manner 
 and by the same process as orders of the Court 
 made in a cause upon bill filed. 
 
 By the 10th of the same General Orders, writs 
 of summons, until that form of proceeding was 
 abolished, were as to the number of defendants 
 to be named therein, as to the mode of service 
 thereof, and as to the time and mode of entering 
 appearances thereto, to be subject to the same rule 
 as writs of subpoena to appear to and answer bills. 
 
 Under the 11th of the same General Orders, 
 H 2 
 
100 THE NEW CIIANCEltY PRACTICE. 
 
 while the writ of summons was in existence, the 
 time for showing cause named in any writ of 
 summons (except a writ of summons to revive or 
 carry on proceedings) was to be fourteen days at 
 the least after service of the writ ; but, by con- 
 sent of the parties, and with the leave of the 
 Court, cause might be shown on any earlier 
 day. The fourteen days will of course now be 
 reckoned from the service of the copy claim. 
 
 Under the provisions of the 1 2th of the same 
 General Orders, at the time for showing cause 
 named in the writ, or on the seal or motion day 
 then next following, or so soon after as the case 
 could be heard, the defendant, having previously 
 appeared, was personally or by counsel to show 
 cause in Court, if he could, (and if necessary by 
 affidavit,) why such relief as was claimed by the 
 claim should not be had against him. 
 
 Under the provisions of the 13th of the same 
 General Orders, at the time appointed for showing 
 cause, upon the motion of the plaintiff, and on 
 hearing the claim, and what may be alleged on 
 the part of the defendant, or upon reading a 
 certificate of the appearance being entered by the 
 defendant, or an affidavit of the copy of the claim 
 being duly served, the Court may, if it shall 
 think fit, make an order granting or refusing 
 the relief claimed, or directing any accounts or in- 
 quiries to be taken or made, or other proceedings 
 to be had, for the purpose of ascertaining the 
 plaintiff's title to the relief claimed ; and further. 
 

 CLAIMS. \ V i^^ ' 
 
 the Court may direct such (if any) persons or lH.!::. 
 classes of persons as it shall think necessary or 
 fit, to be summoned, or ordered to appear as 
 parties to the claim, or on any proceedings before 
 the Master, with reference to any accounts or in- 
 quiries directed to be taken or made, or otherwise. 
 
 By the 14th of the same General Orders, and 
 which is still in full force, every order to be so 
 made, is to have the eflfect of and may be en- 
 forced as a decree or decretal order made in a suit 
 commenced by bill, and duly prosecuted to a hear- 
 ing, according to the previous course of the Court. 
 
 By the 15th of the same Orders it is provided 
 that if, upon the application for any such order, 
 or during any proceedings under any such order 
 when made, it shall appear to the Court that for 
 the purposes of justice between the parties it is 
 necessary or expedient that a bill should be filed, 
 the Court may direct or authorize such bill to be 
 filed, subject to such terms as to costs or other- 
 wise as may be thought proper. 
 
 By the 16th of the same General Orders, it is 
 provided that the orders made for granting relief 
 in the several cases to which the forms set forth 
 in the schedule (A) to those Orders are applicable 
 may, if the Court thinks fit, be in the form and 
 to the efi^ct set forth in schedule (C) to those 
 Orders as applicable to the particular case, with 
 such variations as circumstances may require. 
 See Appendix of Forms, infra. 
 
 The next four of the same General Orders, 
 
102 THE NEW CHANCEKY PRACTICE. 
 
 from the 17th to the 20th inclusive, may now be 
 read mutatis mutandis with reference to the pro- 
 ceedings at Judges' chambers, as -well as with 
 reference to the same proceedings in matters now 
 pending before the Masters. 
 
 By the 17th then of the same General Orders, 
 under every order of reference to the Master 
 under these Orders, the Master is, unless the 
 Court otherwise orders, to be at liberty to cause 
 the parties to be examined on interrogatories, 
 and to produce deeds, books, papers, and writings, 
 as he shall think fit, and to cause advertisements 
 for creditors, and if he shall think it necessary, 
 but not otherwise, for heirs, and next of kin, or 
 other unascertained persons, and the representa-* 
 tives of such as may be dead, to be published in 
 the usual forms, or otherwise, as the circum- 
 stances of the case may require ; and in such 
 advertisements to appoint a time within which 
 such persons are to come in and prove their 
 claims, and within which time unless they so 
 come in, they are to be excluded the benefit of 
 the order; and in taking any account of a de- 
 ceased's personal estate under any such order of 
 reference, the Master is to inquire and state to 
 the Court what part, if any, of the deceased's 
 personal estate is outstanding or undisposed of, 
 and is also to compute interest on the deceased's 
 debts, as to such of them as carry interest after 
 the rate they respectively carry, and as to all 
 others after the rate of four per cent, per annum 
 
CLAIMS. 103 
 
 from the date of the order, and to compute in- 
 terest on legacies after the rate of four per cent, 
 per annum from the end of one year after the 
 deceased's death, unless any other time of pay- 
 ment or rate of interest is directed by the will, 
 but in that case according to the will ; and under 
 every order whereby any property is ordered to 
 be sold with the approbation of the Master, the 
 same is to be sold to the best purchaser that can 
 be got for the same, to be allowed by the Master, 
 wherein all proper parties are to join as the 
 Master shall direct. 
 
 By the 18th of the same General Orders, 
 (and which if read mutatis mutandis is equally 
 applicable to the chief clerk at chambers) if upon 
 the proceedings before the Master under any such 
 order it shall appear to the Master that some per- 
 sons, not already parties, ought to attend or to be 
 enabled to attend the proceedings before him, he 
 is to be at liberty to direct that such persons be 
 served with a copy of the claim, and they are 
 thereupon to be treated as defendants to the suit. 
 The former practice was for the Master to cer- 
 tify, and upon the production of such certificate 
 to the record and -writ clerk, the plaintifi' sued 
 out a writ of summons requiring the persons 
 named in such certificate to appear to the writ, 
 and such persons were thereupon to be named 
 and treated as defendants to the suit. 
 
 The 19th of the same General Orders, gives 
 the form of the writ of summons under an order 
 
104. THE NEW CHANCERY PRACTICE. 
 
 or Master's certificate, which writ is however 
 now abolished. 
 
 By the 20th of the same General' Orders, (and 
 which if read mutatis mutandis is equally appli- 
 cable to proceedings at chambers,) the persons so 
 served having appeared, are to be at liberty to 
 attend, and to be entitled to notice of the pro- 
 ceedings before the Master under the order of 
 reference, subject to such directions as the Master 
 may make in respect thereof. 
 
 Under the provisions of the 21st of the same 
 General Orders, where any proceedings originally 
 commenced by claim shall by the death of parties, 
 or otherwise, have become abated or defective for 
 want of parties, and no new relief is sought, a 
 claim to revive or carry on the suit may be filed; 
 and such claim is- to be in the forftx set forth in 
 No. 12 of schedule (A) to those Orders. See 
 infra, Appendix of Forms. 
 
 By the 22nd of the same General Orders, 
 while the writ of summons was in existence, 
 the party claiming simply to revive or carry on 
 proceedings might sue out a writ of summons 
 requiring the defendant thereto to appear to the 
 writ, and to show cause, if he could, why the 
 pi'oceedings should not be revived or carried on. 
 
 It is immaterial now to consider the form of 
 this writ of summons which is prescribed by the 
 23rd Order, the writ of summons being abolished. 
 As to the practice, now on revivor, see the 52nd 
 section of the New Procedure Act, which has 
 
CLAIMS. 105 
 
 been held to be applicable to claims as well as to 
 bills; supra, p. 55. 
 
 Bv the 24th of the same General Orders it was 
 provided, that if any defendant to any such writ 
 was desirous of showing cause why the proceed- 
 ings should not be revived or carried on, he was 
 to appear and to file a caveat against such revi- 
 vor or carrying on in the record and writ clerk's 
 office, in the form set forth in No; 4 of schedule 
 (B) to those Orders, (see infra, Appendix- of 
 Forms) and to give notice thereof in writing to- 
 the opposite party. If no such caveat was filed 
 within eight days from the time limited for his 
 appearance to the writ, then at the expiration of 
 such eight days the proceedings were to be re- 
 vived, and might be carried on without any order 
 for the purpose ; afld a certificate of the record 
 and writ clerk, that no caveat had been filed 
 within the time limited was to be a sufficient 
 authority for the Master to proceed. But if any 
 such caveat were filed, the proceedings were not 
 to be revived or carried on without an order to be 
 obtained on motion, of which due notice was to 
 be given. The practice however is now entirely 
 changed, the course being to move to discharge 
 the order for revivor. See supra, pp. 55, 60. 
 
 Under the provisions of the 25th of the sanie 
 General Orders, where any further or supple- 
 mental relief is sought, and such supplemental 
 relief is such as is provided for in any of the 
 cases enumerated under Order I, a supplemental 
 
106 THE NEW CHANCERY PKACTICB. 
 
 claim may be filed in such of the forms set forth 
 in schedule (A) to those Orders as is applicable to 
 the case. See infra, Appendix of Forms. 
 
 Under the provisions of the 26th of the same 
 General Orders, if such supplemental relief is not 
 such as is provided for by the 25th Order, a sup- 
 plemental claim may be filed stating shortly the 
 nature, of the plain tiflPs case, and the supple- 
 mental relief claimed, but the leave of the Court 
 is to be obtained previously to the filing thereof, 
 upon an ex parte application for the purpose, in 
 the manner specified in the 6th Order. 
 
 By the 27th of the same General Orders, the 
 same proceedings were to be taken upon a sup- 
 plemental claim, and in like manner as upon an 
 original claim. 
 
 By the 28th of the same General Orders, 
 guardians ad litem to defend may be appointed 
 for infants or persons of weak or unsound mind 
 who are made defendants to claims, in like 
 manner as guardians ad litem to answer and 
 defend are now appointed in suits on bill filed. 
 
 By the 29th of the same General Orders, any 
 order or proceeding made, or purporting to be made, 
 in pursuance of those Orders may be discharged, 
 varied, or set aside on motion ; and any order for 
 accelerating proceedings may be made by consent. 
 
 By the 30th of the same General Orders, any 
 order of the Master of the Rolls or of any of the 
 Vice Chancellors may be discharged or varied by 
 the Lord Chancellor on motion. 
 
CLAIMS. 107 
 
 By the 31st of the same General Orders, if any 
 of the cases enumerated in Order I, involve or are 
 attended by such special circumstances affecting 
 either the estate or the personal conduct of the 
 defendant as to require special relief, the plaintiff 
 is at liberty to seek his relief by bill as if those 
 Orders had not been made. 
 
 By the 32nd of the same General Orders, 
 which has now become almost obsolete, so far as 
 it relates to " special " claims, it is provided, that 
 if at any time after those Orders should come 
 into operation, any suit for any of the purposes 
 to which the forms set forth in schedule (A) to 
 those Orders were applicable, should be com- 
 menced by bill and prosecuted to a hearing in 
 the usua,l course, and upon the hearing it should 
 appear to the Court that an order to the effect of 
 the decree then made, or an order equally bene- 
 ficial to the plaintiff, might have been obtained 
 upon a proceeding by summons in the manner 
 authorized by those Orders, the Court might 
 order that the increased costs which had been 
 occasioned by the proceeding by bill beyond the 
 amount of costs which would have been sustained 
 in the proceeding by summons should be borne 
 and paid by the plaintiff. 
 
 There are few cases now, if any, except the 
 common claims specified in Order I, where a 
 plaintiff may not safely resort to the proceeding 
 by biU, instead of claim, without any risk of 
 being visited with costs under the 32nd Order. 
 
108 THE NEW CHANCBEY PRACTICE. 
 
 Section 2. 
 
 Guardian ad litem, when practice on claims the same 
 as on bills, as to entering appearances, so where 
 claim m.uliifario7is, so as to right to begin on ap" 
 peal claims, distinction between simple and special 
 claims, making claim ^''special" nunc pro tunc, 
 amendment, of common claims, of special claims, 
 setting down claims, no injunction on a claim, 
 claim not generally applicable where evidence 
 conflicting, relief on claim secundum allegata et 
 probata, no preliminary inquiries on claims, 
 special inquiries and special directions, dismiss- 
 ing claim with liberty to file bill, no discovery 
 on a claim, viva voce examination, plaintiff's 
 affidavits, parties to claims, subsequent in- 
 cumbrancers in foreclosure claims, in claims 
 by married women, production of documents, 
 payment into Court. 
 
 Guardians Where a defendant to a claim is an infant or a 
 
 (id litem. 
 
 person of unsound mind, a guardian ad litem 
 must be appointed as in the case of a bill before 
 the claim can proceed. This is done upon the 
 production of an affidavit of fitness under the 
 28th General Order of the 22nd of April 1850. 
 Practice on Jhc 10th of the Same General Orders assimilates 
 
 claims the 
 
 same as on the practice on claims with respect to the time 
 
allies V. 
 Davies, 
 
 CLAIMS. 109 
 
 and mode of entering appearances to the practice biUs as to 
 on bills. So if a claim is multifarious it would appear^ 
 seem that the mode of raising the objection is by ^''^' 
 demurrer as in the case of bills, and not by a o'l'mmul- 
 
 ' •' titarious. 
 
 motion to take the claim off the file. Davies v. Dm 
 Davies. (a) 
 
 So on the hearing of an appeal from the whole Right to 
 
 . .,,. begin on 
 
 order made at the he^rmg of a suit by claim, the appeals the 
 same rule is followed as to opening, as on an ap- where suit 
 peal from the whole decree made in a suit by bUl. ^ 
 In Sims V. Helling^ (b) where this point was de- sims v. 
 cided by the Appeal Court, the Lord Justice Lord 
 Cranworth observed " that by the use of the word 
 motion in the Orders, there was no intention to 
 give any collateral advantage as to the opening 
 and reply in the case of an appeal. The order of 
 the Court in the case of a claim was as much "a 
 decree as a decree or decretal order in a suit by 
 bill." It was held however by Lord Cranworth, 
 when Vice Chancellor, that the analogy to the 
 practice in suits by bill, did not extend to the 
 serving a copy of the claim under the 23rd Order 
 of the 26th of August 1841. (c) 
 
 With respect to the distinction between simple Distinction 
 and special claims, the . following cases of claims simpfeand 
 were held not to come within the ordinary forms ci^ma. 
 specified in Order I of the General Orders of the 
 
 (a) 21 L. J. (it. s.) 543. 
 (i) 21 L. J. (N. s.) 387. 
 (c) Anon. Not reported, 23rd Jan. 1851. 
 
.110 THE NEW CHANCERY PEACTICE. • 
 
 22nd of April 1850, but to be special claims, re- 
 quiring the leave of the Court under the 6th of 
 those General Onlers, before they could be filed. 
 Wright y. In Wright V. Bratt (a) the object, of the claim 
 
 ^ratt. , PIT 
 
 was to compel the production of deeds pursuant 
 
 Keebiey. to a Certificate for that purpose. In Keeble v. 
 
 Dennish (b) the claim sought to enforce the 
 
 specific performance of an agreement to grant a 
 
 Bom/erv. leasc. In Bowyer v. Phillips (c) the claimant 
 
 ^L At //z TiS 
 
 sued on behalf of himself and all other creditors 
 for the execution of the trusts of a deed of 
 assignment for the benefit of creditors and for 
 the taking of all proper accounts. 
 
 Cox V. In Cox V. Yorke (d) the claim was by a bond 
 
 creditor seeking to affect the real estate of his 
 
 woodfordy. deccasfid debtor. In Woodford v. Woodford (e) 
 the claim was by a residuary legatee. The 
 residue had been ascertained, and the claim was 
 for the appropriated share, no accounts of the 
 
 Rickford y. tcstator's cstatc being asked for. In Richford v. 
 
 Young. . ° "' . 
 
 Young (/) the claim was by executors and devisees 
 in trust according to the form in art. 6 of Order I 
 of the 22nd of April 1850, seeking to have the 
 will established, and the trusts performed, and the 
 Greviiky. estatc administered. In Greville v. Smonerio') 
 
 Spooner. ^ \ ;/ / 
 
 (a) 14 Jur. 847. 
 (J) 14 Jut. 847. 
 
 (c) Not reported, 6tli July 1850. 
 
 (d) 14 Jut. 845. 
 
 (e) 14 Jut. 846. 
 (/) 12 Beav. 537. 
 
 (g) Not reported, 20th June 1850. 
 
CLAIMS. Ill 
 
 the claim was filed for foreclosure, there being a 
 suit pending in which accounts of the mortgaged 
 property were going on, to which both the plaintiff 
 and defendant were parties. In all the above 
 cases, and many more of the like nature, the 
 Court gave leave to file the claim, holding it to 
 constitute a special claim, and not to be comprised 
 within the simple forms of claim specified in 
 Order I. 
 
 So in Davis v. Davis, (a) and Frankis v. Cases of 
 Washhoume, (b) leave was given to file the claim, fault. 
 the specialty being that it sought to establish a ^"^^^^ "■ 
 case of wilful default against an accounting Frankis y. 
 
 party. houme. 
 
 On the other hand, in Kemplay v. Higgins, (c) Kempiay 
 it was held that the leave of the Court was not '*^"'' 
 required to the filing of a claim merely on the 
 ground that it asked for the appointment of a 
 receiver. So in Forrest v. Scholejield, (d) the Forrest v. 
 union of a claim by a legatee and by a creditor 
 did not make it necessary to apply for the leave 
 of the Court to file it as a special claim. So in 
 Toon V. Cotterell, (e) the leave of the Court was Toon 
 held not to be necessary to the filing of a claim by 
 the heir of a mortgagor against a mortgagee who 
 had taken possession, though the account was 
 asked on the footing of wilful default. The last 
 
 (o) 14 Jur. 848. (i) 14 Jur. 848. 
 
 (c) Ibid. 847. (d) lUd. 845. 
 
 (e) Ilid. 846. 
 
 V. 
 
 Schokfidd, 
 
 V. 
 
 Cotterell. 
 
112 THE NEW- CHANCERY PRACTICE. 
 
 case shows, if correctly reported, that the line 
 
 which separates a simple from a special claim is 
 
 one of rather an arbitrary kind. 
 
 Filing Where, however, a question which ought to 
 
 cfaim ««nc have been made.the subject of a special claim is 
 
 pro tunc. |^j,Q^gjjj before the Court on a common claim, 
 
 the Court will sometimes give leave to have it 
 filed as a special claim nunc pro tunc. 
 Matthews Thus in Matthews v. Pincomb (a), where a 
 
 V. 
 
 Finconib. tcstator bequeathed a legacy payable to the lega- 
 tee at the age of twenty -one, with interest from 
 her death, and died in 1840. The legatee at- 
 tained the age of twenty-one in 1 860, and filed 
 a common claim for the legacy with interest from 
 her majority, and obtained a decree for the pay- 
 ment of the amount claimed, and received the 
 money. The legatee afterwards, having disco- 
 vered that she was entitled to interest from the 
 testator's death, filed another common claim for 
 this interest. It was held by the then Vice Chan- 
 cellor Knight Bruce that she was entitled to this 
 interest, but that she ought to have made it the 
 subject of a special claim, and leave was given 
 nunc pro tunc. 
 
 The Court, however, directed the plaintiff to 
 pay to the defendant the costs of a motion which 
 came on with the hearing to take the claim off 
 the file for irregularity. 
 
 {a) 20 L. J. (n. s.) 395. 
 
CLAIMS. • 113 
 
 So in Chambre v. Maud, (a) which was a claim chamhrei. 
 filed under art. XI of the 1st Order of the 
 22nd of April 1850, whereby a new trustee may 
 be appointed in a case where there is no power 
 in the instrument creating the' trust to appoint 
 new trustees. The Court being of opinion on the 
 construction of the will, that the power still 
 existed, and that therfe was therefore no jurisdic- 
 tion under art. XI, at the hearing directed the 
 claim to be made special. This case appears to 
 have been unopposed, and in cases of that kind it 
 would no doubt most frequently be done, {b) The 
 Court will sometimes, however, though rarely, 
 assume the jurisdiction even in opposed cases. 
 
 Thus in Scargillv. Surrey, (c) where a claim ScargiUv. 
 for the specific performance of an agreement for 
 a lease had been filed without special leave, the 
 then Vice Chancellor Knight Bruce overruled the 
 objection at the hearing, but said it was not 
 to be made a precedent. 
 
 A common claim might be amended at any time 
 by motion as of course. In Blake v. Blake, (d) 
 a claim was amended in this way by adding 
 co-plaintiflFs. In Potts v. TTie Thames Haven Amend. 
 
 T> "7 /~i ment of 
 
 Dock and Railway Company, (e) the then Vice claims 
 Chancellor Knight Bruce, on giving leave . to 
 
 (a) Not reported on this point 29th June 1850. 
 
 (J) Not reported. 
 
 (c) Not reported 2l8t June 1850. 
 
 ((^ Not reported 6th July 1850. 
 
 (e) Not reported 11th January 1851. 
 
114 THE NEW CHANCEEY PRACTICE. 
 
 amend a claim after it had been set down, asked 
 how the defendant would hear of the amendment, 
 and directed all the same formalities to be used,. 
 which were usual in orders for amendmenfciof biUs. 
 These orders were made on common claims. 
 
 dlims.'^'*' But in Flatow v. Delasoux (a), an order which 
 had been obtained to amend as " of course," was 
 discharged for irregularity. It was there held 
 that to obtain such an order on a special claim 
 it must be shewn that the amendments are 
 material. 
 
 Setting The practiee as to setting down claims is regu^ 
 
 claims. lated as follows. The Master of the Rolls having 
 in McCuUock Y. Haggar ^h), expressed an opi- 
 nion that instead of putting parties to the expense 
 of a special application to set down claims for 
 hearing, they might be set down in the paper, in 
 the same way as motions before the Lord Chan- 
 cellor,: by a simple application to .the registrar, 
 and that they might properly be heard with the 
 consent and short causes, the practice was in 
 consequence regulated in accordance with that 
 suggestion of his Honor, by a notice of the 
 Judges of the 6th of. June 1850, which was after- 
 wards varied by notices of the 6th, 7th, and 16th 
 of November 1850. See these notices^; infra, 
 after the General Orders. 
 
 tVo° 'on"r' I* ^^^ ^^^^y <3ecided that an injunction could 
 
 claim. 
 
 (a) Not reported 9th November 1850. 
 (i) 12 Beav." 546. 
 
CLAIMS. lis 
 
 not be granted on a claim. Holden v. Chal- 
 craft. (a) It is also of no avail for the purpose 
 of discovery, nor in complex and contested cases 
 where there is a serious conflict of evidence. In claim not 
 Smith V. Constant^ (b) decided by Lord Justice Xirrcon- 
 Knight Bruce, when sitting as Vice Chancellor dencef *"" 
 soon after the introduction of claims, that learned ^""''* ''• 
 
 ' Constant. 
 
 Judge entered fully mto the question of extend- 
 ing the use of affidavit evidence, and into the 
 mode of procedure by claims generally, in cases 
 depending on doubtful and conflicting evidence. 
 In that case the claim was filed by an equitable 
 mortgage of real estates. The defence set up 
 was that the money had not been advanced. The 
 mortgagee was evidenced by a deposit of title 
 deeds, and a written memorandum signed by the 
 defendant. The plaintiff in her affidavit had 
 sworn to the signature of the memorandum of 
 deposit by the plaintiff, but there was no other 
 evidence of it. The then Vice Chancellor Knight 
 Bruce on giving judgment said: "In my opi- 
 nion the meaning and intention of the orders 
 was, that claims might be decided on affidavits 
 on both sides, and it is competent for the 
 Court to decide between the parties on affidavits. 
 This power of the Court is to be exercised with 
 a judicial view of what is discreet and right in 
 each particular case. When there is a complica- 
 
 (fl) 14 Jur. 846. 
 
 (S) 20 L. J. (n. S.) 126. 
 
 I 2 
 
116 THE NEW CHANCERY PBACTrCE. 
 
 tion of facts, or serious doubt pressing on the 
 mind of the Court, it may, in order to investi- 
 gate the facts, direct a bill to be filed or some 
 other course to be adopted. There may, how- 
 ever, be cases where the balance may be so plainly 
 and so clearly on one side that it would be the 
 proper duty of the Court to adjudicate between 
 the parties." The claim having been directed to 
 stand over with liberty for the plaintiff to add to 
 the evidence upon one point, on a subsequent 
 day upon the case being mentioned again with 
 the additional affidavit, his Honor said : " I am 
 still of opinion that according to a just and rea- 
 sonable construction of the Orders it is competent 
 for the Court to decide upon affidavit evidence 
 a contested matter of fact. This, however, does 
 not decide the question as to the cases in which 
 such jurisdiction is to be exercised. I apprehend 
 it to be clear that cases may arise and may be 
 easily supposed, in which the conflict of evidence 
 or the nature of the disputed fact may be such as 
 to render it inexpedient, unsafe, or improper for 
 the Court to decide them upon affidavit evidence. 
 In each case where such a question arises the 
 Court must exercise as well as it can a judicial 
 discretion applied to the particular circumstances. 
 .If the Court is asked not to proceed on affidavit 
 evidence, in order that a suit in equity in the 
 ordinary mode may be instituted, that is one 
 thing ; if it is asked not to proceed to decide upon 
 
CLAIMS. 117 
 
 the claim, in order that there may be an investi- 
 gation before a jury, that is another. Now when 
 the demand is for an investigation before a jury, 
 it cannot probably make much difference whether 
 the proceeding in this Court is by claim or by 
 suit in the ordinary way. If, however, the ob- 
 jection is that the case ought to be decided in a 
 suit constituted by bill and answer, the disputed 
 matter being of fact only and not of law, I really 
 do not see the difference in any important respect 
 between proceedings upon affidavits and proceed- 
 ings upon interrogatories and depositions, seeing 
 that according to all experience the faculty of 
 cross-examination in proceedings in equity is a 
 faculty almost worthless to possess, and one the 
 exercise of which seldom assists the person who 
 seeks to avail himself of it. I must say, there- 
 fore, that I consider the present case quite as fit 
 to be decided under a claim upon affidavits, as it 
 would be by a suit regularly that is ordinarily 
 constituted." His Honor accordingly made the 
 usual equitable mortgagee's decree. In Pawsey y. 
 Barnes, (a) however, the same learned Judge, on 
 the ground of the obscurity of the evidence from 
 lapse of time, and the consequent difficulty of 
 adjudicating, dismissed the claim with costs, but 
 without prejudice to a suit by way of bill. And 
 it has been since repeatedly held that the pro- 
 ceeding by claim is applicable only to simple cases, 
 (o) 20 L. J. (n. s.) 393. 
 
118 THE NEW CHANCERY PRACTICE. 
 
 As to the. use of affidavit evidence generally, see 
 infra^ Chapter V. on Evidence. 
 Relief on In JoTins v. Mason (a), which was a claim by 
 on bills, the plaintiflPs for payment of 180^. and costs of 
 'au^gatTet suit by the defendant, who had given to an alleged 
 SoLTv agent of the plaintiffs a cheque for the above sum, 
 MaioH. which had been since lost, the plaintiffs offering 
 to indemnify the defendant against payment of 
 the cheque if presented to his bankers; the evi- 
 dence being conflicting, and the claim being 
 deficient in allegations necessary to establish the 
 right to relief in equity, it was held by the then 
 Vice Chancellor Turner that the General Orders 
 of April 1850, were not intended to affect or 
 alter the ordinary rule of the Court requiring 
 parties to proceed in establishing their case 
 secundum allegata et probata^ and material evi- 
 dence in the power of both parties, having been 
 withheld on both sides, the claim was dismissed, 
 but without costs, and as the claim had been filed 
 by leave of the Court, it was dismissed without 
 prejudice to further proceedings by the plaintiffs. 
 Goode V. So in Goode v. West{b\ which was a claim stating 
 a settlement under which a sum of 1777/. 13s. ^d. 
 was settled upon trust as to one-fourth for a certain 
 person for life, and subject to this life interest 
 in trust for the appointee of the tenant for life, 
 and as to the remaining three-fourth parts of the 
 
 (fls) 20 L. J. (n. s.) 305. 
 (S) 21 L. J. (N. s.) 127. 
 
CLAIMS. 11 9 
 
 fund subject to distinct and separate trusts. Be- 
 fore the claim was filed it was known to the 
 plaintiff that the three-fourths had been severed 
 from the one-fourth, and that the one-fourth had 
 been paid into Court under the Trustees' Indem- 
 nity Acts. The claim took no notice of this 
 application of the fund, but sought to have the 
 whole sum administ^ed under the decree of the 
 Court. Under these circumstances the then 
 Vice Chancellor Turner said that a claim of that 
 kind should state the actual facts of the case; 
 and that if the plaintiff withheld those facts, and 
 took the chance of relief resulting from what 
 might turn up from the affidavits, the claim 
 ought not to be adjudicated upon, that it was the 
 duty of the plaintiff upon a claim to proceed 
 secundum allegata et probata, and as the case 
 suggested by the claim was not the case the 
 Court was asked to adjudicate upon, the claim 
 would be dismissed, but without prejudice to any 
 other proceeding the plaintiff might be advised to 
 take. 
 
 And in another case of Barrett v. Moore (a), Bamtt v. 
 which was a claim for the redemption of a mortgage, 
 and where upon the hearing it came out upon the 
 affidavits that there had been a release of the 
 equity of redemption; the plaintiff having filed 
 the claim without noticing the release of the 
 
 (a) Not reported, but mentioned in Qoode v. West, 
 21 L. J. (n. s.) 128. 
 
.120 THE NEW CHANCERY PRACTICE. 
 
 equity of redemption, the then Vice Chancellor 
 Turner observed that parties resorting to the 
 summary jurisdiction of the Court by claim, were 
 bound to state aU the facts of the case which 
 were within their own knowledge, and that they 
 were not justified in bringing a case before the 
 Court not as it really stood, but as it would have 
 stood in the view the parties might entertain of 
 the relief to which they were entitled ; and the 
 claim in this case not fully stating the facts, the 
 Court declined to entertain it, and it was dis- 
 missed with costs. 
 Preiimi- jn GUpin y. MaqcB io). it was held by Lord 
 
 nary inqui- '■ ./ \ yi j 
 
 ries not Cranworth, when Vice Chancellor, that preiimi*- 
 
 directed on ^ 
 
 a claim, nary inquiries could not be directed on a claim. 
 The claim was filed by some of the residuary 
 devisees for the administrator of the estate of a 
 testatrix who had given various legacies to Roman 
 Catholic priests and charities, and a reference to 
 the Master was asked to inquire whether any of 
 the legacies so given by the will were held upon 
 any secret trusts for the performance of any pious 
 acts connected with the Roman Catholic religion. 
 His Lordship there held that preliminary in- 
 quiries before the hearing could not be directed 
 upon a claim, and he made only the common 
 administration decree, observing that if the 
 parties wanted more they must file a bill for the 
 purpose. 
 
 (a) 20 L. J. (jf. s.) 639. 
 
 Gilpin V. 
 
CLAIMS. 121 
 
 If at the hearing of a claim it appears that it As to di- 
 will be necessary for the Court to direct special s^cuf in- 
 inquiries, and the claim contains no specific T^m"" 
 statements, upon which to ground those inquiries, 
 the claim will be dismissed. Thus in Penny v. 
 Penny (a), where a testator had directed certain 
 legacies to be paid but of his estate, and the 
 residue to be emploj^d in carrying on his farm 
 until his youngest child attained her majority, 
 and the farm had been carried on accordingly, 
 the then Vice Chancellor Turner said, "the 
 common account of the testator's estate would 
 not suffice to meet the case; it is evident that 
 an inquiry would have to be directed in respect 
 of the carrying on of the farm, independently of 
 the question what account should be directed 
 upon which to ground those inquiries. No spe- 
 cific facts appear on the claim now before me. 
 It does not refer to any of the circumstances 
 under which the farm has been carried on, nor 
 even claim an account in respect of the manage- 
 ment of it. I think that in this state of circum- 
 stances, proceedings by bill rather than by claim 
 should have been adopted, and that the proper 
 order to make will be to dismiss the claim, without 
 prejudice to a bill being filed." This case also con- 
 tains some useful observations with respect to 
 parties to claims. So in Woodman v. Farley (b), Or giving 
 
 (a) 20 L. J. (I., s.) 339. '^""''""" 
 
 lb) Not reported 6th July 1850. 
 
122 
 
 THE NEW CHANCERT PRACTICE. 
 
 As to dis- 
 missing 
 claim with 
 liberty to 
 file a bill. 
 
 Vivd voce 
 examina- 
 tion now 
 instead. 
 
 Wilkinson 
 V. Stringer. 
 
 No dis- 
 covery on 
 \ claim. 
 
 the late Master of the EoUs, refused on the 
 hearing of a claim to give a special direction not 
 to disturb settled accounts, it not being asked by 
 the claim. 
 
 The former practice on dismissing a claim on 
 the ground of the conflicting nature of the evi- 
 dence, or the failure to establish the case made, 
 was to direct that the claim should be dismissed 
 without pr^sjudice to the right of the plaintiflF to 
 file a bill. This liberty to file a bill will not now 
 be given. Where a sufficient case is made for 
 the examination of witnesses, and the case would 
 have been a proper one under the old practice 
 for directing an issue, the Court will itself ex- 
 amine the witnesses, rather than put the parties 
 to the expense and delay of filing a bill. Where 
 there is only a single issue to be tried as e. g^ the 
 fact of agency, such an issue is a fit subject 
 for such examination. Wilkinson v. Stnnger. (a) 
 With respect to the use of the proceeding by way 
 of claim for the purpose of discovery it is 
 remarkable that the 19th section of the l^ew Pro- 
 cedure Act J 15 & 16 Vict. c. 86, confers a privi' 
 lege upon the defendant to a claim as to the 
 means of obtaining discovery, which is not in 
 terms given to the plaintiflF. 
 
 This may be designed or accidental, but it is 
 presumed it is done advisedly. Sect. 12 of the, 
 act in express terms confines the privilege of 
 (a) 9 Hare, Appendix, p. xxiii. 
 
CLAIMS. 123 
 
 filing interrogatories to the plaintiff in any suit 
 commenced by bill. The provisions of the 31st 
 of the General Orders, which enable the plaintiff 
 to exercise an option as to the mode in which the 
 evidence shall be taken, also in terms apply only 
 to the plaintiff in a suit commenced by bill. The 
 36th General Order, under which any party may 
 require the attendance of any witness before an 
 examiner, would, it is presumed, be held to apply 
 only to requiring the attendance of a witness, 
 as such, and not to requiring the attendance of 
 a defendant. The only opportunity therefore, it 
 would seem, which the plaintiff in a claim has of 
 compelling an examination of the defendant, is 
 under the 37th of the General Orders, and then 
 only where the defendant has made an affidavit, 
 in which case he may be cross-examined ; but 
 this right of a plaintiff in a claim to cross-ex- 
 amine would, it is presumed, be restricted and 
 limited, and would in fact be regulated by the 
 ordinary rules, which according to the present 
 practice apply to cross-examination in general, 
 and would not extend to new matters, wholly 
 foreign to those referred to by the defendant in 
 his evidence in chief. 
 
 For the purpose of discovery therefore it would 
 appear that the proceeding by claim is wholly 
 inoperative, as it was before the passing of the 
 Act, and a plaintiff who wants discovery must 
 commence his suit by bill. 
 
124 THE NEW CHANCEBY PKACTICE. 
 
 The Act certainly holds out no encourage- 
 ment to suitors, in cases which are likely to be 
 contested, and to involve disputed facts, to resort 
 to the remedy by way of claim, and it seems in- 
 tended that except in very simple cases, to which 
 alone perhaps claims can properly be made appli- 
 cable, they should almost wholly be discontinued." 
 As to viva It is uot a matter of course, to direct a vivd voce 
 
 voce exa- ^ ^ , 
 
 mination examination upou a claim. In the case of Wilkin- 
 
 on R. els.! Til 
 
 Wilkinson. ^('^ V. Stringer (a), the then Vice Chancellor Turner 
 V. Sinnger. j^^jj ^-^^^ ^^^ ^^^^ ^^^j. ^jjg^jjgj. g^ y{y^ y^gg exami- 
 nation on a claim will be directed, is to consider 
 whether on suit by bill and answer, and where 
 the parties had gone into evidence, the Court 
 would, under the old practice, at the hearing, 
 have directed an issue to try the fact. If under 
 the old practice the Court would not have directed 
 an issue, it will not, under the new practice, 
 order witnesses to be examined upon the chance 
 merely of what may come out in their evidence. 
 His Honor, not considering that the case then 
 before him was one in which upon bill and 
 answer, and after replication, he should have 
 directed an issue, refused to make the order 
 asked, for the oral examination of the witnesses. 
 It appears from the same case that if at the 
 hearing of the claim, the defendant disproves a 
 material fact alleged by the . plaintiff, the Court 
 will not, on the appHcation of the plaintiff, order 
 (o) 9 Hare, Appendix, p. xxiii.^ S. C. 22 L. J. (n. s.) 107. 
 
CLAIMS. 125 
 
 the examination of witnesses, vivd voce, on the 
 disputed fact. 
 
 In orders upon claims under the former prac- Plaintiffs 
 tices, affidavits were entered as read, and a direc- not evi- 
 tion was given to the Master that the plaintiff's cept in 
 affidavits were not to be considered as evidence, "asesr^" 
 and that the defendants' affidavits were to be 
 treated in all respects as if they were their 'answers 
 to bills filed against them. Cockbum v. Green, (a) 
 The plaintiff's affidavits were, however, always 
 admissible where there was no opposition, and 
 no evidence contra. Shardlow v. Gaze, (b) The 
 rules with respect to evidence are now materially 
 altered. See post, Chapter V. on Evidence. 
 
 In Eccles v. Chevne, (c) which was a claim by As to par- 
 
 ■^ . ^ '^ . ties to a 
 
 one of several cestuis que trust against trustees claim, 
 alleging wilful default, and asking for an account ^"j^ly^; 
 and for removal of the trustees, the then Vice 
 Chancellor Turner made some useful observations 
 with respect to the necessary parties to a claim, 
 as well as with respect to the proper occasions 
 for resorting to the proceeding by way of claim 
 generally. After commenting on the 3rd and 5th 
 articles of Order I, and on Orders VII and VIII 
 of the General Orders of the 22nd of April 1850, 
 his Honor said, " The object of the Court in 
 making these Orders was to save the expense of 
 
 {a) 20 L. J. (n. s.) 216. 
 (J) lUd. 395. 
 (e) lUd. 631. 
 
126 THE NEW CHANCERY PRACTICE. 
 
 making numerous persons parties to a claim in 
 respect of their having concurrent interests, and 
 to go back to the old rule of the Court, established 
 and acted upon in Lord Hardwicke's time, when 
 it was said that all parties who had any interest 
 might come in before the Master. I think these 
 Orders were undoubtedly made for simple cases. 
 Then, what are simple cases? They are cases 
 where, according to the case made by a claim, 
 the decree would be, of course, on a bill filed, 
 provided all proper parties were before the Court. 
 This claim sins against that rule in this respect, 
 that it seeks to remove trustees which would not 
 be a decree of course, and it goes beyond a decree 
 of course as to wilful neglect and default. I do 
 not mean to lay down the rule that the Court 
 would not remove trustees on these claims, or 
 entertain charges of wilful default and neglect, but 
 they must be special cases. If the claim resolves 
 itself into a simple case, I think the absence of 
 parties constitutes no objection to a decree being 
 made, because the Court will take care that all 
 proper parties are summoned before the Master, 
 that the trustees may have the particular indem- 
 nity to which they are entitled." See also as to 
 parties, Penny v. Penny, (a) 
 In fore- In foreclosurc suits, instituted by way of 
 
 closure i • i i i J J 
 
 suits sub- claim, no less than when commenced by bill, sub- 
 sequent 
 
 («) 20 L. J. (n. s.) 339. 
 
CLAIMS. 127 
 
 sequent incumbrancers must be made parties. In incum- 
 Burgess v. Sturgis (a), which was a claim by an must be 
 equitable mortgagee against a mortgagor asking ^^ ^ ' 
 for a sale, and also that the several other mortgagees 
 might be summoned before the Master, or that a 
 decree might be made to ascertain what mort- 
 gages there were, and their priorities, the Master 
 of the Rolls refused the order, observing that the 
 relief asked was direct against all the mortgagees, 
 and that were he to make the decree, it might 
 aflFect several absent parties. His Honor gave 
 leave to amend the claim. 
 
 So in Gray v. Dickinson, (b) which was a claim Husbands 
 
 - , . - . - of married 
 
 lor the appointment ot new trustees, married women, 
 women being interested in the residue, it was "Ist'must 
 held that the husbands must be parties, or appear * "^^ '*'' 
 and consent. On obtaining that consent the 
 order was made for a reference to appoint new 
 trustees, and the Master was to summon before 
 him all the parties he might find to be interested. 
 
 It may be noticed here that in these cases for 
 the appointment of new trustees the usual order 
 with respect to their costs is, that they be paid 
 out of the fund after their appointment. 
 
 Although an injunction could not be granted Produc- 
 on a claim, a receiver might be appointed; and documents 
 the Court would on a claim make an order for the menfof' 
 
 (a) 21 L. J. (N. s.) 53. 
 (6) 14 Jur. 846. 
 
128 THE NEW CHANCERY PRACTICE. 
 
 money into productioii of docurtlents, or for payment of money- 
 be ordered into court. Jeffevies V. Biggs, (a) 
 
 on a claims t<<i i . in 
 
 If the plaintiff m a claim makes default at the 
 hearing, any defendant who appears is entitled to 
 have the claim dismissed with costs, without pro- 
 ducing any affidavit of service of the copy of 
 the claim. Charlton v. Allen, (b) 
 
 (a) 20 L. J. (n. s.) 638. 
 (5) 22 L. J. (N. s.) 257. 
 
PRODUCTION OF DOCUMENTS. 129 
 
 CHAPTER IV. 
 INTERLOCUTORY APPLICATIONS. 
 
 Section 1. 
 PEODtrCTION OF DOCUMENTS. 
 
 Production of documents, how obtained, by plain- 
 tiff, by defendant, general rules as to production, 
 earliest decisions on the 18th and 20th sections, 
 no affidavit now by party seeking production, 
 documents produced on oath, form of this oath, 
 form of order, application made at chambers 
 not in open Court, plaintiff seeking discovery of 
 documents should proceed by bill not claim, de- 
 fendants answer conclusive as to possession of 
 documents, exceptions to answer as to documents 
 not encowaged, as to company answering under 
 their common seal^ inspection of .document by 
 
 - agent, delivery of documents out of record office. 
 
 By the 18th Section of the New Procedure Act Appiica. 
 15 & 16 Vict. c. 86, the Court is empowered puSntMffor 
 upon the application of the plaintiff in any suit, Sf°dooul°" 
 whether commenced by bill or by. claim, and as "'™''' 
 
 K 
 
130 THE NEW CHANCERY PRACTICE. 
 
 to a suit commenced by bill, whethe^the defend- 
 ant may or may not have been required to answer 
 the bill, or may or may not have been_interro- 
 ! "gated as to the possession of documents, to make 
 an order for the production by any defendant 
 upon oath of such of the documents in his pos- 
 session or power relating to matters in question 
 in the suit as the Court shall think right. 
 May be The important change introduced by this see- 
 
 before tion is, that the plaintiff may procure the produc- 
 and before tiou of documeuts in an early stage of the suit, 
 torieTled. before answer, and even before interrogatories 
 are filed. Formerly he could do nothing before 
 answer. 
 Appiioa- By the 20th section of the New Procedure Act, 
 drfeJant 15 & 16 Vict. c. 86, the Court may, upon the 
 duclion'of application of anj defendant in any suit, whether 
 ocumen . gQjjjmenced by bill or by claim, make an order 
 for the production by the plaintiff, on oath, of 
 such of the documents in his possession or power 
 relating to the matters in question in the suit, as 
 the Court shall think right. 
 When The Court will, of course, not make the order 
 
 bem'ade. for productlou uudcr either the 18th or the 20th 
 section, unless in such a case appearing on the 
 aflB davits as would before have warranted the 
 order if appearing on the answer. Thus the 
 Court will require the party seeking the produc- 
 tion to show a clear interest in the documents, 
 and will of course in no case order a party to pro- 
 
PBODXJCTION OF DOCUMENTS. 131 
 
 duce those documents which relate exclusively to 
 his own title. 
 
 The order will not, except perhaps in the case When not. 
 of an impeached deed, or in other very rare or 
 special cases, be made against a mortgagee, (a) 
 Neither wiU it be made in a case where the ques- 
 tion of the title to the documents, or the property 
 to which they relate is the substantial question in 
 the suit, and where the title deeds would not be 
 material for the purposes of the hearing. So in } 
 order to obtain the production, it must clearly I 
 appear that the parties required to produce have / 
 the entire control over the documents. Penney 
 V. Goode. (b) ' 
 
 Again, documents which are privileged on the 
 ground of professional confidence will not be 
 ordered to be produced, Enthoven v. Cobb; (c) 
 and so in all other li^e cases the same grounds 
 of exemption will hold good as under the old 
 practice, and the general rules on the subject 
 still remain the same. 
 
 Much of the previous learning on this subject 
 as to relevancy and otherwise will still be appli- 
 cable, and the rules as to the mode of production 
 would of course be still the same. 
 
 It may be observed that all applications for Appiica- 
 production of documents, both under section 18 the first 
 
 {a) See Ocmnock v. Xcmncey, 1 Drewry, 497, and Lewis t. 
 Dames, 17 Jur. 253. 
 (h) 1 Drewry, 746. 
 \c) 17 Jur. 81 ; S. C. 2 De Gex, McN. & G. 632. 
 
 K 2 
 
132 THE NEW CHANCERY PRACTICE. 
 
 instance to and sectioTi 20 of the New Procedure Act, will 
 chambers." HOW in the first instance be made to a Judge sitting 
 at Chambers under the 26th section of the Master 
 in Chancery Abolition Act 15 & 16 Vict. c. 80, 
 in which section, amongst other matters therein 
 specified, applications for the production of docu- 
 ments are expressly included. If any ground of 
 protection or privilege is relied on, the matter will 
 be adjourned to be argued in Court. See on the 
 subject of the production of documents the able 
 work by a learned living author, who has borne a 
 share in adtfiinistering as well as interpreting the 
 law, intituled " Points in the Law of Discovery," 
 as well as Mr. Hare's excellent and equally elabo- 
 rate, work on the same subject. 
 
 In the first case which arose under the 20th 
 section of the New Procedure Act 15 & 16 Vict. 
 c. 86, which was immediately upon the act coming 
 into operation, it was considered by the Vice 
 Chancellor Sttiart that the defendant must be in 
 a situation to show, on the hearing of the moti6n 
 for production, what the documents were which 
 were alleged to be in the plaintifi^'s possession, 
 and, in fact, that they ought to be specified in the 
 notice of motion^ in order to enable the Court to 
 exereise the requisite discretion as to ordering 
 Fiottv. their production. Fiott v. Mullins. (a) The 
 Lords Justices, however, on appeal, dissented 
 from this view of the act. And the practice now 
 
 (o) 16 Jur. 946. 
 
PRODUCTION OF DOCUMENTS. 133 
 
 followed as to prodaction of documents under 
 both the 18th and the 26th sections of the New- 
 Procedure Act, is that settled by all the equity 
 Judges in the case of The Rochdale Canal Com- 
 pany V. King (a), which is stated infra, p. 137. 
 
 The next case which arose before the same M'intoshy. 
 
 The Great 
 
 .Judge, after Fiott v. MuUms was the case of Western 
 Mcintosh V. The Grmt Western Railway Com- company, 
 pany (b), which was a suit by a contractor against 
 the company for an account in respect of works 
 done by him for the company. After several 
 insufficient answers, a motion was made by the 
 defendants, the railway company, against the 
 plaintiflF, under the 20th section of the New Pro- 
 cedure Act 15 & 16 Viet. c. 86. It was objected 
 that the railway company, if in want of discovery, 
 might long ago have filed a cross bill under the 
 old practice, that no step of that kind had ever 
 been taken, that the motion was merely for the 
 purpose of delay and vexation, and that it was 
 too extensive, as it would extend to letters to 
 workmen and other correspondence and docu- 
 ments, relevant indeed, but utterly immaterial. 
 The Vice Chancellor Stuart, in giving judgment 
 on the motion, made these observations : " I think, 
 upon the whole, the defendants have entitled 
 themselves to an order against the plaintiff in this 
 case. The application is made under the 20th 
 
 (o) 15 Beav. 11. 
 
 (i) 16 Jur. 991. • 
 
134 THE NEW CHANCERY PRACTICE. 
 
 section of the 15 & 16 Vict. c. 86. The terms 
 in which the enactment in that section is ex- 
 pressed are very large and comprehensive. It 
 has been stated very justly that the view of the 
 Legislature in that section was to give tx) a de- 
 fendant without the more costly process of a biU 
 of discovery, the means of obtaining production 
 of the documents in the possession of the plaintiff 
 which relate to the matters in question in the 
 suit. It, however, has imposed upon the Court 
 the duty of exercising a discretion in ordering 
 such production for very obvious reasons, because 
 there may be many documents in the possession 
 or power of the plaintiff relating to the matters 
 in question, the production of which would be 
 altogether nugatory or unnecessary. What T 
 must now consider is, whether it appears from 
 the evidence before the -Court that there are 
 in this case documents in the possession of the 
 plaintiff relating to the matters in question in the 
 suit which it is fit and proper, from the informa- 
 tion which the Court has before it as to the 
 nature of the litigation and of the documents, that 
 the Court should order to be produced upon oath 
 by the plaintiff. I find that the subject-matter 
 of this suit is the right of the plaintiff, which he 
 asserts, to recover from the defendants certain 
 sums of money which he alleges to be due to him, 
 under certain contracts subsisting between them. 
 I find 'that in the course of that litigation the 
 
PRODUCTION OF DOCUMENTS. 135 
 
 plaintiff thought it material for his case to compel 
 the defendants to make the most ample discovery 
 and production of documents in their possession 
 relating to the matters in question I find, more- 
 over, that upon the evidence now before me the 
 defendants allege, and the plaintiff admits, that 
 the plaintiff has in his possession documents re- 
 lating to the matters in question relating to this 
 cause. What I have to consider is, whether upon 
 this general admission it is proper that an order 
 for production should be made at the instance of 
 the defendants. Now it appears strangely enough, 
 from the case stated by the plaintiff in his own 
 affidavit, that an enormous mass of documents 
 relating to the matters in question are in his 
 possession, that he has been litigating the matters 
 to which they relate for five years, and has never 
 for himself ascertained the contents of those docu- 
 ments, so as to enable him to state whether they ■ 
 do immediately relate to the question in such 
 manner as that the Court may be able to exercise 
 a more particular judgment upon their contents. 
 I think, in a cause conducted under such circum- 
 stances with regard to relevant documents in the 
 possession of the plaintiff himself, that the case is 
 preeminently one in which the Court should 
 exercise its discretion in favour of the defendants, 
 so as to give the most ample means of investi- 
 gating the nature of those documents. Such want 
 of diligence, I do not say of caution, on the part 
 
136 THE NEW CHANCERY PRACTICE. 
 
 of the plaintiiF, is a very strong reason for the 
 Court to exercise its utmost power to give the 
 defendants the means of investigation on their 
 part of the contents of those documents. I there- 
 fore think that it is right to make the order in 
 the terms of the notice of motion with some 
 qualifications as to time. Part of the order Avill 
 be for production upon oath, that is, the plaintiff 
 must, under the order, state more particularly 
 upon oath the nature of those documents which 
 are in his possession or power. It is needless for 
 the Court to consider in the present state of the 
 matter any question that may arise with reference 
 to the form in which the oath is to be made by 
 the plaintiff. AU that I can do is in the terms 
 of the act of Parliament to order the plaintiff to 
 produce the documents upon oath, and to give 
 him a reasonable time for the production." 
 atIwmAt Upon an appeal by the plaintiff against the 
 The Great order made by Vice Chancellor Stuart in the 
 
 Western •' 
 
 saiiway abovc casc of Mcintosh v. The Great Western Rail- 
 
 Company 
 
 varied on Way' (a), on the motion of the defendants for pro- 
 appeal. , ' 
 
 duction of documents, the Lords Justices varied 
 
 that order, by directing that the plaintiff should 
 
 on or before the 20th of March 1853, make an 
 
 affidavit of all documents, &c. in his possession 
 
 or power, and that the rest of the appeal motion 
 
 should stand over with liberty to apply for an 
 
 extension of the time. 
 
 (o) 22 L. J. (n. b.) 182. 
 
PRODUCTION OF DOCUMENTS. 137 
 
 In Thompson v. Teulon (a), which came before Thompson 
 the Court some time after the decision in ifef'Jra- "" 
 tosh V. The Great Western Railway Company, (b) 
 the Vice Chancellor Turner said the equity 
 Judges had considered the subject, and that all 
 applications for production of documents ought to 
 be made in the first instance by summons at cham- 
 bers. If any diflSiJulty arose, the matter would 
 be adjourned to be argued by counsel in Court. 
 
 In the case of The Rochdale Canal Company v. ^'Ac rocA- 
 
 , -^ "^ dale Canal 
 
 King (c), it was held that no affidavit was neces- Company 
 
 , V. King. 
 
 sary to support an application for production of 
 documents on oath under the 20th section of 
 the New Procedure Act 15 & 16 Vict. c. 86, and 
 the costs of any such affidavit wiU in future be 
 disallowed. The form of the affidavit to be made 
 by the plaintiff when called upon for the produc- 
 tion, has been settled by the Judges, which 
 although not obligatory, will be considered suffi- 
 cient. It is framed on the model of a carefully 
 prepared answer to the interrogatories of a search- 
 ing bill. See infra, Appendix of Forms, " Affi- 
 davits." The form of order in such a case has 
 also been settled. It requires the party to make 
 an affidavit stating what documents he has in his 
 possession, and orders the deposit and inspection 
 of such as he does not by his affidavit object to 
 produce. See infra, Appendix of Forms, " Order 
 for Production." 
 
 (a) 22 L. J. (n. s.) 11. 
 (6) 16 Jur. 991. 
 (c) 15 Beav. 11. 
 
138 THE NEW CHANCERY PRACTICE. 
 
 As to any claims of privilege or exemption 
 which may be raised by the afladavit, the validity 
 of all such objections will be determined in open 
 Court. 
 Wing V. In Wing v. Harvey (a), the plaintiflp in a suit 
 
 by claim moved for the production of certain 
 .documents described in the summons,jipon an affi- 
 davit by the plairitiflP's solicitor, that he believed 
 the documents were in the defendant's possession. 
 The defendant's affidavit did not contain a very 
 distinct admission of the possession of the required 
 ' documents, and the Vice Chancellor Stuart re- 
 i fused the order for production. 
 
 His Honor after commenting on the case of 
 The Rochdale Canal Company v. King (&), is 
 reported to have said that the plaintiff should 
 have filed an affidavit with interrogatories, which 
 was a practice now sanctioned, or should have 
 proceeded by bill. 
 
 It is apprehended that the proper course would 
 have been either to proceed by bill, or to cross- 
 examine the defendant under the 37th General 
 Order of the 7th of August 1852. The author is 
 not aware of any authority for interrogatories 
 being filed by the plaintiff upon a claim. The 
 19th section of the New Procedure Act gives 
 this power to the defendant in a suit instituted 
 by claim, but it is no where given to the plaintiff. 
 The answer Where an answer has been filed it seems that it 
 
 IS COUClU' 
 
 (a) 17 Jur. 481. 
 (J) 15 Beav. 11. 
 
PRODUCTION OF DOCUMENTS. 139 
 
 is conclusive on the question what documents are sive as to 
 
 , T_ 1 /. T , , . possession 
 
 in tne deienaant s possession. of docu- 
 
 In Lamb v. Orton (a), the plaintiff mOved for ^^^j\, 
 production of documents under the 18th section ^''^™- 
 of the New Procedure Act 15 & 16 Vict. c. 86. 
 He tendered an affidavit to shew the probability 
 of the defendant having a certain document in 
 ■his possession. The answer referred to docu- 
 ments generally, and not specifically to the par- > 
 ticular document. The Vice Chancellor Kin- 
 dersley ruled that the affidavit could not be read 
 against the answer, and that the production must 
 be obtained on the admissions of the answer only. 
 His Honor observed on the 18th section of the 
 act " that it was almost verbatim the same as the 
 language of the clause in a common decree for 
 account, where th&. parties are directed to pro- 
 duce deeds, &c. on oath. In the construction of 
 this clause the oath of the defendant as to what 
 documents he has, is always conclusive." 
 
 If this be so, it would be prudent where it is 
 intended to move on the^ answer Jhat the inter- ■ 
 rogatories should be specifically pointed to the 
 particular documents required. It may perhaps i 
 be better in some cases for the plaintiff to apply f* 
 for the documents before answer, and indeed 
 there is no reason why the usual summons for 
 the production of documents should not be taken 
 out at chambers, immediately upon the defendant 
 (a) 1 Drewry, 414 ; S. C. 22 L. J. (n. s.) 713. 
 
140 THE NEW CHANCEBY. PRACTICE. 
 
 To exclude appearinar to the bill. It is presumed that for 
 
 the plain- ^ " ° • • n't re n • 
 
 titPs affi- the purpose of excludins: the plaintiff s amdavit 
 
 davit the '^ *^ ' ° . , i /? j . 
 
 answer as to what documents are in the deiendant s 
 
 must be un- , . , 
 
 ambiguous, possession, the statement m the answer niust be 
 positive and unambiguous. It the answer were 
 evasive or insufficient, the Court if it would not 
 allow the plaintiffs affidavits to be used, on the 
 motion for production, would at least, it. is pre- 
 sumed, put the defendant to make an affidavit 
 more specifically pointed to the particular docu- 
 ments alleged to be in his possession, instead of 
 putting the plaintiff to file exceptions to the 
 answer. Still there is no doubt the case must ulti- 
 mately rest on the oath of the defendant, whether 
 / "eonffined in his answer, or in his affidavit, (a) 
 
 Exceptions jj; may be observed here, that under the new 
 
 to answers •' ' 
 
 as to books practice, the Court will not encourage exceptions 
 
 and papers '■ ' ox 
 
 not en- to answcrs for insufficiency, so far as they relate 
 
 couraged. _ v / j 
 
 to the interrogatory as to books and papers. This 
 
 was intimated by the Vice Chancellor Turner, in 
 
 Lamv. The the casB of Law V. The London Indisputable Life 
 
 diaputabie PoUcy Company. {¥) The company were a re- 
 
 Company. gistcred body, and their secretary was made a 
 
 defendant for the purpose of discovery. It was 
 
 • admitted that the interrogatory as to books and 
 
 papers was not, answered, in the strict manner 
 
 required by the old form of pleading, but it was 
 
 submitted that the trial of the question as to 
 
 (a) See Beynell v. Sprye, 1 De Gex, McN. & Gr. 656. 
 (J) 10 Hare, Appendix, p. ix. ; S. C. 22 L. T. 19. 
 
PBODUCTION OF DOCUMENTS. 141 
 
 sufficiency in this elaborate and expensive way 
 was now unnecessary, as the Court had settled 
 a form of affidavit on the naodel of a carefuUy 
 prepared answer to be made by the party from 
 whom the discovery was sought. The Rochdale 
 Canal Company v. King . ( a ) The Vice Chancellor 
 adverting to the course of proceeding which may 
 now be taken at Judge's chambers, with regard 
 to the production of documents, said he should 
 hope that exceptions to answers on the ground of 
 the interrogatory as to books and papers not 
 having been sufficiently answered, would not 
 hereafter be generally taken in such cases. His 
 Honor was not certain, however, in the present 
 case, that under the 18th section of the New 
 Procedure Act, he coUld have ordered the com- 
 pany to produce the documents which the secre- 
 tary might admit, or whether the provisions of Whether a 
 
 ,,■,.-,, J. company or 
 
 the act applied to a company or corporation corporation 
 
 1 , ^ • 1 nitbin the 
 
 answering under their common seal, act, quart. 
 
 The company undertaking to produce the do- 
 cuments which might be admitted by the affidavit 
 of the secretary, the Court made no order on 
 this exception. 
 
 In Dipple v. Corks (b), upon a summons being juppuv. 
 taken out at chambers by the plaintiff, the de- 
 fendant had opposed by counsel, and the appli- 
 cation was in consequence adjourned by the Vice 
 Chancellor Turner to the Court. 
 
 {a) 15 Beav. 11. 
 
 (i) 22 L. J. (n. 8.) 15. 
 
142 THE NEW CHANCERY PRACTICE. 
 
 The motion was afterwards opposed on the 
 authority of Comhe v. The Corporation of Lon- 
 don, (a) 
 
 The Vice Chancellor Turner thought that case 
 had been misunderstood, and he made an order 
 for the production and inspection at the office of 
 the defendant's solicitor of such of the documents 
 as the plaintiff's counsel thought were material. 
 Summer- In Summerfield v. Prichard (b), it was held that 
 AicLrd. under an order that the plaintiff, his solicitor and 
 agents should be at liberty at all seasonable times, 
 upon giving reasonable notice, to inspect, peruse, 
 and take copies, at the office of the defendant's 
 solicitor, of the documents admitted by the an- 
 swer, the plaintiff will not be allowed to take with 
 him a relative, who is not strictly an agent, to 
 assist in the inspection of the documents. The 
 Master of the Kolls observed that he could not 
 consider the uncle of the plaintiff his agent for 
 this purpose. 
 
 There was evidence to show that the uncle had 
 instigated the suit, though this was denied by 
 the plaintiff, who insisted that the uncle was the 
 person who best understood the accounts from 
 having been a clerk of the testator. 
 An order If documents are required to be delivered out 
 
 required to "" 
 
 get doeu- of the rccord and writ clerk's office an order must 
 
 ments out i • j /• 
 
 of the re- bc Obtained for the purpose. In Runnall v. 
 
 cord office. 
 
 (a) 1 T. & C, C. C. 631. 
 (6) 22 L. J. (N. s.) 528. 
 
PRODUCTION OF DOCUMENTS. 143 
 
 Yarroll (a), the plaintiff applied for an order 
 to deliver out of the record and writ clerk's office 
 a document which had been deposited there, the 
 object of the deposit having been fully answered. 
 A further reference was also asked to the Master, 
 to whom there had been a previous reference and 
 who was cognizant of all the circumstances of 
 the case. 
 
 The Yice Chancellor Kindersley said : "If the 
 practice requires an order for such delivery, it 
 must be adhered to, but it seems to entail unne- 
 cessary expense on the parties. In the Master's 
 office it is a common practice, all parties con- 
 senting, to give out a deposited document with- 
 out an order of the Court. As to the suggestion -R«»«a« v. 
 
 °° Yarroll. 
 
 of counsel that an order was required for the 
 protection of the record and writs clerk's office 
 that is a reason equally applicable to the Master's 
 office, yet the practice there is different. With 
 regard to the reference to the Master, the Court 
 must rely on the fact that such reference is ex- 
 pedient and necessary, otherwise in an ordinary 
 case of this kind the matter should be taken in 
 chambers." 
 
 (a) 21 L. T. 178. 
 
144 THE NEW CHANCERY PRACTICE. 
 
 Section 2. 
 on injunction and eeceivee. 
 
 Injunctions to stay proceedings at law now like other 
 special injunctions^ not granted now for default 
 of appearance, jurisdiction of Courts of common 
 law in matters of injunction. Common Law Pro- 
 cedure Act, Patent Law Amendment Act, when 
 inspection, of machinery will be granted, injunc- 
 tions not granted where remedy at law, injunction 
 not of course even where right established at law. 
 Lord Redesdale's rules, as to restraining pro- 
 ceedings in foreign Courts, in cases of nuisance, 
 or annoyance, substituted service of injunction 
 bill, former practice as to the common injunction^ 
 amending bill after the common injunction dis- 
 solved on merits, writ of ne exeat, how obtained, 
 affidavits not to be taken before solicitor in the 
 cause. 
 
 Injunctions By the 58th section of the New Procedure Act 
 proceed- 15 & 16 Vict. c. 86, the practice of the Court 
 law n'ow with pespect to injunctions for the stay of pro- 
 s'pedai " ceedings at law, so far as the nature of the case 
 injunctions, ^jj^ admit, IS assimilated to the practice with 
 respect to special injunctions generally, and such 
 injunctions may be'granted upon interlocutory 
 
INJUNCTION AND RECEIVER. 145 
 
 applications, supported by affidavit in like man- 
 ner as other special injunctions. 
 
 By the 45th of the General Orders of the 7th Notgrant- 
 of August 1852, no injunction for stay of pro- for default 
 ceedings at law is to be granted as of course an«e.^^"" 
 for default of appearance or answer to the bill. 
 
 By the course of recent legislation a new and Jurisdic- 
 co-ordinate jurisdiction in some matters of injunc- Courts of 
 tion has been vested in the Courts of common law. k™in°raat- 
 
 By the 226th section of the Common Law junodon" 
 Procedure Act 15 & 16 Yict. c. 76, after reciting Common 
 that it is expedient that injunctions and orders to cedureAct. 
 stay proceedings should be rendered more eflfec- 
 tual, it is enacted that in case any action, suit, 
 or proceeding in any Court of law or equity shall 
 be commenced, sued, or prosecuted, in disobedience 
 of and contrary to any writ of injunction, rule, 
 or order of either of the superior Courts of law or 
 equity at Westminster, or of any Judge thereof, 
 in .any other Court than that by or in which such 
 injunction may have been issued, or rule or order 
 made, upon the production to any such other 
 Court or Judge thereof of such writ of injunction, 
 rule, or order, the said other Court (in which 
 such action, suit, or proceeding may be com- 
 menced, prosecuted, or taken), or any Judge 
 thereof, shaU stay all further proceedings con- 
 trary to any such injunction, rule, or order; and 
 thenceforth all further and subsequent proceed- 
 ings shall be utterly null and void to all intents 
 
146 THR NEW CHANCERY PRACTICE. 
 
 and purposes: Provided always that nothing in 
 the said act contained shall be held to diminish, 
 alter, abridge, or vary the liability of any person 
 or persons commencing, suing, or prosecuting 
 any such action, suit, or proceeding contrary to 
 any injunction, rule, or order of either of the 
 Courts aforesaid, to any attachment, punish- 
 ment, or other proceeding to which any such 
 person or persons are, may, or shall be liable in 
 cases of contempt of either of the Courts afore- 
 said, in regard to commencing, suing, or prose- 
 cuting such action, suit, orppoceeding. (a) 
 Patent Law gy the 4 2nd sectja tl of the Patent Law Amend- 
 
 Amend- •' — — •«'»*^ _ _ _ . t t , 
 
 ment Act. ment Act 15 & 16 Vict..c. 83, it is provided that 
 in any action in her Majesty's Superior Courts of 
 Kecord at Westminster, and in Dublin, for the 
 infringement of Letters Patent, it shall be lawful 
 for the Court in which such action is pending,/ 
 if the Court be then sitting, or if the Court be 
 not sitting, then, for a Judge of such Court, on 
 the application of the plaintiff or defendanj; re- 
 spectively, to make such order for an injunction,, 
 inspection, or account, and to give such direction 
 respecting such action, injunction, inspection,, 
 and account, and the proceedings therein respec- 
 tively, as to such Court or Judge may seem fit. 
 
 When in. Jt has been held that under this section, em- 
 
 spection of ' 
 
 {a) See also sections 210, 211, of the Common Law Pro- 
 cedure Act 15 & 16 Vict. c. 76, on injunction in equity at 
 suit of lessee to stay ejectment by landlord. 
 
INJUNCTION AND EECEIVEE. 147 
 
 powering a Court of common law to order an machinery 
 inspection in an action for tKe infringement of a granted. 
 patent, that an inspection of machinery may be 
 granted, but such inspection will not be granted 
 as of course, and without the party applying for 
 it, showing at least that it is material, and really 
 wanted for the purposes of the cause. See Amies '*»"■'« ^• 
 V. KeUey. (a) 
 
 An injunction will not in general be granted injunction 
 
 1 1/-1 r> /^i 1 ,.-. ""' granted 
 
 by the Court of Chancery wherfe there is an where re- 
 adequate remedy at law. Thus where a mere law. 
 question of title was in dispute, and where it was 
 not shown that the plaintiff might not obtain by 
 action of ejectment all that he was entitled to, it 
 was held that a biU filed on that footing alone 
 would not entitle the plaintiff to an injunction. 
 See Webster v. The South Eastern Railway Com- 
 pany, {b) 
 
 So, again^ although a person may have esta- injunction 
 blished his right at law, he is not as a matter of cou^e, 
 
 ... . even whore 
 
 course entitled to an iniunction, particularly right esta- 
 where the injunction would not restore the plain- law. 
 tiff to the right he has established, and where the 
 act complained of may be compensated by pecu- 
 niary damages. See Wood v. Sutcliffe. (c) But Wood v. 
 in this case the evidence proved that owing to the 
 increase of polluting matter poured into the 
 stream of water, which was the subject of the suit, 
 
 (a) 16 Jur. 1047. 
 (6) 20 L. J. (N. s.) 194. 
 (c) 21 L. J. (N. s.) 253. 
 L 2 
 
148 THE NEW CHANCERY PRACTICE. 
 
 from other sources than that of the defendant's 
 works, the plaintiff never could be re-instated in 
 his original rights. It was a case in which the 
 damage might be corapensate(f by money, and it 
 moreover appeared that the plaintiff had been 
 guilty of such an amount of acquiescence as 
 would disentitle him to an injunction. 
 Lord Lord Redesdale in his Treatise on Pleadings 
 
 Redes- 
 
 dale's has traced and classed the grounds of the juris- 
 diction of courts of equity, and he has divided 
 them into two classes, one where the Court is 
 called on to decide on the right to property, the 
 other wliere it is called on to interfere without 
 deciding on any such right. With reference to 
 the first class he says that the jurisdiction exists 
 where the law gives a right but does not afford 
 a sufficient remedy, or where the powers of the 
 law are abused, or where the law gives no right, 
 but the principles of universal justice require the 
 interference of judicial power. And with reference 
 to the second class he thus describes it: — "The 
 Courts of Equity also administer to the ends of 
 justice by removing impediments to the fair 
 decision of a question in other Courts, by pro- 
 viding for the safety of property in dispute pend- 
 ing a litigation, by preserving property in danger 
 of being dissipated or destroyed by those to 
 whose care it is by law eatrusted or by persons 
 having immediate but partial interests, by re- 
 straining the assertion of doubtful rights in a 
 manner productive of irreparable damage, by 
 
INJUNCTION AND RECEIVER. . 149 
 
 preventing injury to a third person from the 
 doubtful title of others, and putting a bound to 
 vexatious and oppressive litigation, and prevent- 
 ing unnecessary multiplicity of suits, and without 
 pronouncing any judgment on the subject by 
 compelling a discovery or procuring evidence 
 which may enable other Courts to give their 
 judgment, and by "preserving testimony when in 
 danger of being lost before the matter to which 
 it relates can be made the subject of judicial 
 investigation." These are still the true principles 
 by which the jurisdiction of the Court is bounded. 
 
 The Court of Chancery will not exercise its Asto 
 extraordinary jurisdiction by injunction in such proceed"^ 
 a way as to draw foreign litigation here, and it fofeign 
 will always presume that foreign Courts will *^°"'''*- 
 . decide according to the rules of justice. In a 
 case where a Scotchman who was resident and 
 carried on trade in England, became bankrupt 
 here, and subsequently succeeded to real estate 
 in Scotland. Though the assignees had pos- 
 sessed themselves of this real estate as part of 
 the property to be administered under the bank- 
 ruptcy, the Court would not interfere to stay an 
 action brought by a creditor in the Court of Session 
 in Scotland, in which action he had arrested the 
 rents of the real estates in Scotland so as to 
 prevent them from dealing with this property. 
 The Lord Justice Turner said, " It would be 
 assuming jurisdiction to prescribe the Court.Jn 
 which parties should bring their suits, and that 
 
150 THE NEW CHANCERY PRACTICE. 
 
 the question whether those suits should be main- 
 tained, was a question for those Courts to deter- 
 Penneiiv. mine." Pennell v. Roy. {a) 
 '^' Where there has been a decree the case is dif- 
 
 ferent, and an injunction may be granted even 
 without a bill for the purpose. Thus in a late 
 After a case where there had been a decree in a creditor's 
 poceed-"^ suit, the present Master of the Rolls, in giving 
 foreign judgment on a motion for an injunction to re- 
 be°r^^"'" strain proceedings in the Court of Session in 
 strained. Scotland, made these observations, " I am of 
 opinion, although Lord Eldon says he does not 
 know how the jurisdiction arose in the first 
 instance, that it is not necessary to file a bill for 
 the purpose of obtaining an injunction, in cases 
 where there has been a decree made for the ad- 
 ministration of an estate, a:nd that it is not neces- 
 M'L'arenv. sary to file a bill against a creditor who does not 
 come m, to prevent him irom applying to any 
 other tribunal for the purpose of enforcing his 
 right ; it being established that a suit is not 
 necessary for that purpose. Notice of the decree, 
 and its being served upon the party, is all that 
 is necessary. If he does not obey that, then the 
 Court enjoins him from proceeding in the tri- 
 bunals of this country, or of another country. 
 See M'-Lareny. Stainton. {h) 
 111 cases of With rcspect to the exercise of the jurisdiction 
 
 nuisance. 
 
 (a) 22 L. J. (n. s.) 409. 
 (J) 22 L. J. (n. s.) 274. 
 
INJUNCTION AND EECEIVEE. 151 
 
 in cases of nuisance, the same principles will 
 guide the interference of the Court by injunction, Attorney 
 whether in a case of private nuisance or public sh"ffidd ' 
 nuisance. The question in every case is whether pmy. "'" 
 the extent of the damage and of the injury be 
 such, as that the law will not afford an adequate 
 and sufficient remedy. Thus in the case of spe- 
 cific performance of a covenant, it is not every 
 covenant which the Court will perform, but only soitau v. 
 in those cases of covenant in which the per- "' ^''^ 
 formance of the covenant is essential. And so 
 in like cases. It is also a question of degree. 
 The Court will not interfere where the damage is 
 trivial and temporary. These principles were 
 laid down in the late case of the Attorney Ge- 
 neral v. The Sheffield Gas Consumers' Com- 
 pany, (a) See on the subject of nuisance the 
 observations of tbe Vice Chancellor Kindersley, 
 in the bell ringing case of Soitau v. De Held, (b) 
 
 So in Drahe^ v. West (c), where a vendor had or annoy- 
 executed a legal assignment of property to a ^'"'*' 
 purchaser, and was afterwards illegally dis- z»raAev. 
 training upon the tenants of the property ^'^*' 
 assigned, the Vice Chancellor Wood said it was 
 not a case for the interference of the Court of 
 Chancery. The relation of vendor and purchaser 
 had ceased on the legal assignment of the pre- 
 
 (a) 22 L. J. (n. s.) 811. 
 (6) 21 L. J. (n. s.) i53. 
 (c) 22 L. J. (n. s.) 375. 
 
152 THE NEW CHANCEKY PRACTICE. 
 
 inises by the defendant to the plaintiff: and the 
 case of the plaintiff was not analogous to those 
 in which a bill of peace had been filed after the 
 title to the property had been established by 
 ejectment, or repeated actions at law. The de- 
 fendant's proceedings might be illegal and annoy- 
 ing to the plaintiff, but the Lords Justices had 
 decided in the recent case of the Sheffield Gas 
 Companies, that the plaintiffs in that case were 
 not entitled to ask for an injunction, although 
 the defendants had without any authority, and to 
 the annoyance of the inhabitants, taken up whole 
 streets for the purpose of laying down gas pipes. 
 Substituted Jn Serqison v. Beavan (a), the Court allowed 
 
 service of ■' \ v 
 
 injunction substituted scrvice of a bill praying an injunction 
 to restrain an action at law, upon an affidavit 
 that the plaintiff at law was out of the jurisdic- 
 tion, and that the person whom it was intended 
 to serve was his q,ttomey, without any afl5davit of 
 
 sergiison V. merits. Under the old practice, when the motion 
 
 Beavan, ^ ' 
 
 for the common injunction was of course, it was 
 necessary to have an affidavit of merits, but now 
 that the motion must be upon notice, the affi- 
 davits of merit is dispensed with. 
 
 The application must not be made on the 
 eve of trial. Holme v. Browne, (b) 
 Former Generally where the common injunction issued 
 
 (a) 16 Jur. 1111. 
 
 (b) 9 Hare, Appendix, p. xxix. 
 
INJUNCTION AND RECEIVER. 153 
 
 under the old practice against several plaintiffs as to the 
 at law, it would not be dissolved until all their injunbtion. 
 answers came in. But there were exceptions to 
 the rule. The former practice in such cases is 
 stated in Money v. Jordan, (a) 
 
 In Zulueta v. Vment{h)^ the common injunction Amending 
 had been dissolved on the merits of the case, thecom- 
 
 mi 1 • • rf ^ iii-i-ii i t raon iiijuno- 
 
 Ihe plaintm then amended his bill and moved to tion dis- 
 revive the injunction upon an affidavit verifying merits. 
 in general terms the truth of the amendments. 
 It was there held that the defendant could not 
 contradict that affidavit, butjie might shew that 
 the amendments did not materially vary the 
 original case. 
 
 For the practice of the Court generally with 
 respect to injunctions, see Mr. Drewry's useful 
 work on the Law and Practice of Injunctions. 
 
 A writ of ne exeat regno will be granted to Writof 
 
 ^ ^ ne exeat, 
 
 restrain a defendant from leaving the kingdom, 
 upon sufficient evidence that he has such an 
 intention and that the debt will be thereby 
 endangered. The order is obtained upon an How ob- 
 ex parte application, and the service of the copy 
 of the writ with the production of the original 
 writ, should then accompany the service of the 
 copy of the bill. See a form of a bill seeking 
 such writ, infra, Appendix of Pleadings, (c) The Afiidavit. 
 
 not to be 
 
 (a) 13 Beav. 229; S.C. 20 L. J. (n. s.) 174, and 15 Jur. 94. 
 (5) 14 Beav. 216 ; S. C. 20 L. J. (n. s.) 431. 
 
 (b) Fenwich v. Eddowes. 
 
154 THE NEW CHANCERY PRACTICE. 
 
 taken affidavits should n6t be taken before the solicitor 
 
 before i • i • 
 
 solicitor of the plaintiff in the cause, otherwise the writ 
 cause. and all proceedings taken under it wiU be dis- 
 charged with costs, ffopkin v. Hopkin. {a) 
 The writ can only be obtained by bill not by 
 claim. 
 Using oral By the 40th section of the New Procedure 
 
 evidence of 
 
 witnesses Act 15 & 16 Vict. c. 86, any party in a cause 
 or matter depending in the Court, may by a writ 
 of svbpoena ad testificandum^ or duces tecum, 
 require the attendance of any witness before an 
 examiner specially appointed for the purpose, 
 and examine such witness orally for the purpose 
 of using his evidence upon any claim, motion, 
 petition, or other proceeding before the Court, in 
 like manner as such witness would be bound to 
 attend, and' be examined with a view to the 
 hearing of a cause. 
 Maybe The 40th sectjon of the New Procedure Act 
 
 amined. also providcs that where any party has made an 
 affidavit to be used, or which shall be used on 
 any claim, motion, or petition, or other pro- 
 ceeding before the Court, he shall be bound on 
 being served with the writ of subptena ad testifi- 
 candum, or duces tecum, to attend before an ex- 
 aminer for the purpose of being cross-examined. 
 Witness In Smith v. The Swansea Dock Company (b), 
 
 ^mLoned after the opening of a motion, the plaintiff's 
 
 by sub- 
 poena, 
 
 (a) 10 Hare, Appendix, p. ii. 
 (J) 16 Jur. 1130. 
 
INJUNCTION AND RECEIVER. 155 
 
 counsel, in consequence of the Court rejecting an before the 
 affidavit as filed too late, proposed to call the the motion 
 
 tor n.pprp6 
 
 plaintiff who was in Court, and examine him g^^^^ 
 vivd voce, under the 40th section of the New ^„"l'com- 
 Procedure Act 15 & 16 Vict. c. 86. The Vice p""!/- 
 Chancellor Kindersley, however, refused to allow 
 the vivd voce examination of the plaintiff, observ- 
 ing, that the clause, though it applied to proceed- 
 ings on motion, required that the witness should 
 be summoned before the examiner by subpoena in 
 the ordinary way, for which subpoena application 
 must l?e made before the motion was brought on. 
 His Honor added, that there was the same objec- 
 tion to the admission of this evidence, as there 
 was .to the admission of the affidavit, after the 
 motion had been opened, viz., that the proceed- 
 ings would be interminable. See also May 
 V. Biggenden, stated infra, in Chapter V., on 
 Evidence. 
 
 The Court will not allow the powers given by Powers 
 
 *• under 40th 
 
 40th of the New Procedure Act to be used for section of 
 
 the New 
 
 the purpose of delav- Thus in Normanville v. Procedure 
 
 '^ ^ •> ^. Act must 
 
 Stanninq (a), where the defendant moved to dis- not be used 
 
 ^ ^ ^^ _ , for the pur- 
 
 solve an injunction to restrain an action at law, pose of 
 
 upon an affidavit of one hundred folios in length, ;^„™„„. 
 which had been filed three days previously. The "^^„;;-„^.. 
 Vice Chancellor Turner said that the affidavit 
 appeared to have been filed sufficiently long be- 
 fore the motion was made, to enable the plaintiff 
 {a) 10 Hare, Appendix, p. xx. 
 
156 THE NEW CHANCEEY PRACTICE. 
 
 a 
 
 to meet it; but even if the affidavit had been 
 filed only the evening before, the plaintiff, having 
 obtained an injunction to stay proceedings at law, 
 must be prepared to meet the application to 
 dissolve it. With regard to the application to 
 examine the deponent vivd voce,, it had been 
 contemplated that the order enabling parties to 
 examine witnesses on a motion, might be used, 
 or attempted to be used in injunction and other 
 cases, for the purpose of creating delay; and it 
 was to guard against this result that the last 
 clause of the order had been introduced, which 
 provided that the Court should always have a 
 discretionary power of acting upon such evidence 
 as might be before it at the time, and of making 
 such interim orders or otherwise as might appear 
 necessary to meet the justice of the case. 
 Appoint- An application for the appointment of a re- 
 receiver ceiver by consent should be by summons at 
 
 by consent . /-i t>i 
 
 to be at chambers, and not m open Court. Blachborough 
 
 V. Ravenhill. (a) 
 Where In Bvowu v. Oakskott (b), the Master of the 
 
 any con- -rvn • t i 
 
 test ad- Rolls Said he should not make any order on any 
 
 journcd to _, , , ■' 
 
 Court. application for a reference to the Master to appoint 
 a receiver, but that he should dispose of such 
 application himself either at chambers, or if there 
 was any contest between the parties, upon argu- 
 
 Brownv. ment in Court on proper materials. The peti- 
 
 {a) 16 Jur. 1085 ; S. C. 22 L. J. (s. s.) 108 
 (*) 20 L. T. 268. 
 
INJUNCTION AND RECEIVER. 157 
 
 tion which had been presented, praying a re- 
 ference to the Master to appoint a receiver, 
 was ordered to stand over, for the parties to 
 propose a receiver, and for affidavits as to fitness 
 to be filed. 
 
 So in Grote v. Binq (a), the Vice Chancellor Distinction 
 
 ^ ^ ^' . , where 
 
 Stuart said that where a receiver was in the first receiver 
 
 originally 
 
 instance sought to be appointed in the place of appointed, 
 some person already in possession of the pro- substituted 
 perty, the motion should be made in open Court, vacancy. 
 But in cases where a receiver had been already 
 appointed, and a vacancy occurred by death or 
 otherwise, or where, as upon the death of the 
 owner, no person was in possession, the applica- 
 tion should be made at chambers. 
 
 The general rule is, that a receiver will not be Receiver 
 
 • not gene- 
 
 appointed at the suit of a mortgagee or other rally ap. 
 
 person who has the legal estate, because he might where party 
 
 put in force his legal remedies, and take pos- has the 
 
 legal 
 session. estate. 
 
 A receiver may, however, be appointed, al- When 
 
 -,, ,.,,,, appointed, 
 
 though the person applying has the legal estate, notwith- 
 as against the person whose possession he seeks party ap- 
 to oust, where the property is in the nature of a the'L^gar 
 trade. And the Court will sometimes interfere ^*'*'°' 
 on an interlocutory application to appoint a 
 receiver, notwithstanding grave doubts as to the 
 propriety of the frame of the suit, and the neces- 
 
 (o) 20 L. T. 124. 
 
158 THE iraiW CHANCERY PRACTICE. 
 
 Fripp V. sity of making: additional parties. Fripp v. The 
 
 The Chard ^, , „ ., „ / . 
 
 Railway (jhard Railway Company, (a) 
 
 Company. rpjjgj.g ^^iQ biU was filed bj a mortgagee on 
 behalf of himself aiad all other mortgagees. There 
 were eight co-mortgagees who were all named in 
 the bill, but they were not made parties. In that 
 case the receiver was appointed only to "collect" 
 the rents and profits of any real estate vested 
 in the company. The Vice Chancellor Wood 
 declined to introduce the word "manage;" that 
 Avould be considered at the hearing. 
 
 The order was made without prejudice to the 
 rights of prior incumbrancers, or to the equity 
 (if any) of the company or the committee of 
 management under th« act of Parliament for 
 controlling the trade of the canal. 
 
 ^^rrfed bv ^^^ Order upon being drawn up was carried to 
 
 adjourn- chambers, by way of adjournment, for the selec- 
 
 ment to t j j j t ■ 
 
 chambers, ^jon of a proper person to be receiver. 
 
 It is a general and almost invariable rule of 
 the Court not to interfere to take the possession 
 of property from a party who has it, under^ a 
 legal title, except in cases of fraud or waste, and 
 even in these cases, to use Lord Eldon's words. 
 Rule of " tbe Court proceeds against the legal title with 
 t^^nterfere reluctance, compelled by judicial necessity, the 
 fg^g'^al'titie. effect of fraud clearly proved, combined with im- 
 minent danger to the property, if the possession 
 
 (a) 17 Jut. 887. 
 
INJUNCTION AND BECEIVER, 15^ 
 
 should not be taken under the care of the 
 Court." 
 
 The Court will never grant a receiver against case of 
 a mortgagee in possession, when he can swear i^°pofsest'' 
 that anything is due to him. But unless he can "°"' 
 make oath to there being a balance due, a 
 receiver mav be appointed. Thus, in Hiles v. ^iksv. 
 
 " i~ i. ^ Moore. 
 
 Moore (a), a receiver was granted after decree 
 against a mortgagee in possession, on the appli- 
 cation of another mortgagee, a co-defendant. A 
 receiver had been asked, but refused at the 
 bearing, because there was no pretence for 
 .granting it at the instance of the plaintiff in a 
 redemption suit, against his mortgagee in pos- 
 session; and at the hearing one co-defendant 
 could not ask it against another. The ground 
 on which the order was made after the Master's 
 separate report in that case, was, that it did 
 not appear from the aflSdavit of the mortgagee 
 in possession, which was used before the Master, 
 that anything was due to him. 
 
 As a general rule a receiver will not be ap- Receiver 
 pointed where the title is doubtful, if the de- rally ap- 
 fendant has obtained the legal estate without- where title 
 
 p 1 , J jy ^ ' no doubtful. 
 
 fraud, and no case or danger is made, bee 
 Lancashire v. Lancashire, (b) So it was laid 
 down in Bainbrigge v. Baddeley (c), that where Bainhriqge 
 
 ley. 
 
 (a) 15 Beav. 175. 
 
 (b) 9 Bear. 120. 
 
 (c) 3 M'lSr. & G. 413. 
 
in suit. 
 
 160 THE NEW CHANCERY PRACTICE. 
 
 Receiver the right to property, which is the subject of 
 pointed" litigation, depends on questions to be decided at 
 plaintiff law, the jurisdiction in equity to grant a receiver 
 sonabic^*" will ouly be exercised where there is a reasonable 
 or°uccess^ probability of success, and the property the 
 subject of the suit is in danger. 
 
 In Newton v. Newton (a), the Vice Chancellor 
 Wigram said, that the Court would always inter- 
 fere, by appointing a receiver to preserve property 
 pending litigation, where there was a probable 
 ground for thinking the plaintiff would at the 
 hearing be entitled to relief; and in that case 
 his Honor made the order appointing a receiver, 
 even before answer. On the other hand, in 
 Owen V. Homan.{h), where many important 
 points arose on the construction of deeds and not 
 upon disputed facts. Lord Truro, after observing 
 that the granting a receiver was a matter of dis- 
 cretion to be governed by a view of the whole 
 circumstances of the case, one of the most 
 material of which was the probability of the 
 plaintiff being ultimately entitled to a decree, 
 said that, in his opinion, the construction of the 
 deeds was attended with too much doubt and 
 difficulty to entitle the plaintiff to a receiver, and 
 he discharged the order which had been made for 
 the appointment of a receiver in the Court below. 
 This decision of Lord Truro was afterwards 
 
 (a) Wot reported, 14th June 1842. 
 (J) 3 M'N. & a. 378. 
 
INJUNCTION AND RECEIVER. 161 
 
 affirmed in the House of Lords, but on diflFerent 
 grounds. Their Lordships intimated a doubt 
 whether the Court would interfere with the legal 
 possession of property, by the appointment of a 
 receiver at the instance of a general creditor who 
 has no specific claim against the property. 
 Lord Cranworth, in delivering the judgment of 
 the House in that case, observed, that the plain- 
 tiffs were in the nature of general creditors 
 seeking^ to obtain payment by a sort of equitable 
 action of assumpsit or debt. His Lordship 
 added, that, perhaps, the anomalous nature of 
 the right, where a plaintiff was claiming as a 
 general creditor of a married woman, and was 
 seeking payment out of her separate estate, and 
 the inability of the Court to govern the proceed- 
 ings in equity in such a case by rules strictly 
 conformable to those which regulate an action at 
 law, might warrant the interim interference by a 
 receiver. The order, however, discharging the 
 receiver, was affirmed. 
 
 When a bill is filed by a specialty creditor, 
 and it is admitted that the assets are insufficient, 
 a receiver will be appointed. See Chalk v, 
 Baine. (a) 
 
 In the late case of Rhodes v. Lord Mostyn., 
 a judgment creditor who had issued an elegit^ 
 was held to be entitled to file a bill, and to 
 
 (o) 18 L. J. (n. s.) 472. 
 M 
 
162 THE NEW CHANCERY PRACTICE. 
 
 have a receiver. Before the statute 1 & 2 Vict. 
 c. 110, a judgment creditor had only a general 
 lien, until after the issuing of the elegit By the 
 13th section of that act a judgment duly entered 
 up now operates, and can be enforced as a specific 
 charge. See the observations of Lord Cranworth, 
 supra, in delivering the judgment of the House 
 of Lords, in Owen v. Homan, as to the application 
 for a receiver by a creditor who has no specific 
 CLAIM against the property. 
 
 As to the appointment of a receiver in part- 
 ner^ip cases, see Freelandv. Stans field; {a) Clegg 
 V. Fishwick; (b) Blakeney v. Dufaur^ (c) and 
 Frippy. The Chard Railway Company, {d) noticed 
 supra. 
 
 It is not necessary to bring \o a hearing a suit 
 for the appointment of a receiver pendente lite. 
 Anderson v. Guichard^ (e) 
 Order The ordcr for a receiver ought to state dis- 
 
 sfaould state . , i p c • i i 
 
 distinctly tmctly ou the lace oi it over what property the 
 property is. rcceivcr is appointed. See Crow v. Wood. (/) 
 A receiver may be discharged for not passing 
 his accounts, and for other acts of misconduct. 
 Such an order was made by the late Vice Chan- 
 cellor Shadwell, in Turner v. Turner, (g) In 
 
 (a) 16 Jur. 792. 
 
 (i) 1 HaU & Twlls, 390. 
 
 (e) 15 Beav. 40. 
 
 (d) 17 Jut. 887. 
 
 (e) 9 Hare, 275. 
 (/) 13 Beav. 271. 
 
 (ff) Not reported, 11th June 1849. 
 
INJtINCTION AND RECEIVER. 163 
 
 Ijudgater v. Channell, (a) where in the lifetime 
 of a receiver, an unascertained balance had been 
 found by the Master's report to be due, and the 
 receiver had afterwards died, without payment 
 of such balance. Lord Truro, upon petition, 
 ordered that the receiver's recognizance should 
 be put in suit against his real and personal 
 representatives, andr against his sureties. For 
 the learning applicable to the subject of receiver 
 geiiierally, see Mr. W. H. Bennett's useful work on 
 the office and duties of a receiver. 
 
 By the 15th General Order of the 16th of Receiver's 
 
 ... recogni- 
 
 October 1852, it is directed that recognizances zances. 
 which had theretofore been given to the Master of 
 the Rolls and the Senior Master in Ordinary 
 should thenceforth be given to the Master of the 
 RoUs and the Senior Vice Chancellor for the time 
 being. 
 
 By the 13th General Order of the 16th of Receiver to 
 
 ■' give secu- 
 
 October 1852, where an order is made directing "'y- 
 a receiver to be appointed, unless otherwise 
 ordered, the person to be appointed is first to 
 give security, to be allowed by the Judge to 
 whose Court the cause is attached, or taken 
 before an officer or agent of the Court in the 
 country, if there shall be occasion, duly to account 
 for what he shall receive on account of the rents 
 and profits for the xeceipt of which he is to be 
 appointed, at such periods as such Judge shall 
 (ffl) 3 McN. & G-. 175. 
 M 2 
 
164 THE NEW CHANCERY PRACTICE. 
 
 appoint, -and to account for and pay the same as 
 the Court shall direct, or as the case may be, to 
 be answerable for what he shall receive in respect 
 of the personal estate for the getting in and col- 
 lection of which he is to be appointed, and to 
 account for and pay the same as the Court shall 
 Receiver direct ; and the person so to be appointed is to 
 salary. be allowed a proper salary for his care and pains 
 in receiving such rents and profits, or, as the^case 
 may be, to have an allowance made to him in 
 respect of his collecting such personal estate. 
 Previous gy ^j^q i4t}i General Order of the 16th of 
 
 General ■' 
 
 Orders of October 1852, it is directed that the General 
 
 Court ap- 
 plicable Orders of the Court with respect to receivers 
 
 mutatis 
 
 mutandis, shall, mutatis mutandis, apply to receivers ap- 
 pointed under orders made after those rules and 
 regulations should come into operation. 
 
 On motion gy ^1^ 59|;}j gectiou of the New Procedure Act 
 
 to dissolve ■' 
 
 injunction 15 & iQ Vict. c. 86, upon application by motion 
 charge or petition to the Court in any suit depending 
 
 receiver, _ ... . 
 
 answer to therein for an injunction or a receiver, or to 
 
 be treated _ ... ,. ' 
 
 as affidavit, dissolve an injunction, or discharge an order 
 appointing a receiver, the answer of the defendant 
 is for the purpose of evidence on such motion or 
 petition, to be regarded merely as an aflSdavit of 
 the defendant, and aflSdavits may be received and 
 read in opposition thereto. 
 
 piaintiflF It would sccm, howcvcr, from Lancaster v. 
 
 not to read ,■.,.. 
 
 affidavits Lancaster, (a) that it is not competent to the 
 answer, plaintiff, upou showiug cause against dissolving 
 
 (a) 20 L. T. 140. 
 
INJUNCTION AND RECEIVEK. 165 
 
 the common injunction to stay proceedings at where wii 
 law, to read affidavits filed in opposition to the new prac- 
 defendant's answer, where the bUl was filed 
 before the commencement of the new practice. 
 In the above case the Vice Chancellor Kindersley 
 intimated this opinion, but the point does not 
 appear to have been much discussed. 
 
 Section 3. 
 
 ON" MOTION FOE DECREE. 
 
 Motion for decree before replication, on what evi- 
 dence, the 1 5th section is retrospective, motions for 
 decree to be heard as causes, Court may direct 
 suit to be prosecuted in the ordinary way, one 
 month's notice required, list of affidavits at foot 
 of notice, time for fling affidavits on motion for 
 decree, motion for decree to be entered with the 
 registrar, answer of one defendant not to be read 
 against co-defendant without notice, to be entered 
 vnth registrar, application to set down motion 
 after the month has expired, motion for decree 
 applies only to bills not to claims, evidence on 
 motion for decree, must be a complete not a 
 partial decree, costs on motion for decree, asking 
 different relief at the bar. 
 
 Bv the 15th section of the New Procedure Act, Piaintitf 
 
 J _ may, on 
 
 it is provided that the plaintiff in any suit com- expiry of 
 menced by bill shall be at liberty, at any time answeringr, 
 
166 THE NEW CHANCERY PRACTICE. 
 
 but before after the time allowed to the defendant for an- 
 move for a' swcring the same shall have expired (but before 
 decretal replication), to move the Court, upon such notice 
 as shall in that behalf be prescribed by any 
 General Order of the Lord Chancellor, for such 
 decree or decretal order as he may think himself 
 entitled to. 
 Aflidayits The Same section also provides that the plain- 
 filed. ^ tiff and defendant respectively are to be at liberty 
 to file afiidavits in support of and in opposition 
 to the motion so to be made, and to use the same 
 on the, hearing of such motion ; and if such motion 
 shall be made after an answer filed in the cause, 
 the answer is, for the purposes of the motion, to be 
 treated as an affidavit. 
 
 This clause introduces an entire new practice. 
 It is a change perhaps of more doubtful tendency 
 than any other in the act. 
 
 To be of any benefit and to avoid doing much 
 mischief, it is suggested that the clause must be 
 used very sparingly, or at least be confined to 
 simple cases. It will be safer in its application 
 to decretal orders merely directing accounts and 
 inquiries than ,to final decrees. 
 
 In those cases in which the decree, though final 
 in its nature, requires a further order of the 
 Court to confirm it before it can be completely 
 and finally acted upon, the provision may conve- 
 niently be made applicable. 
 
 But those cases are few. Of this nature are 
 decrees in suits against infants, in which a day 
 
MOTION FOE DECREE. 167 
 
 is ^ven to show cause, after the infant attains 
 twenty-one. But it may be doubtful whether 
 the Court would be disposed to extend this new 
 and untried jurisdiction to suits against infants; 
 at all events at first. Of the same description are 
 foreclosure and redemption bills; but this kind 
 of relief, unless where there are several incum- 
 brancers, is now more usually and much more 
 simply and economically obtained by claims, under 
 articles 6 and 7 of the 1st General Order of the 
 22nd April 1850. The clause in question might 
 be applied without risk, all proper parties being 
 before the Court, to cases on the construction of 
 wills or deeds; and it is probable that to this 
 class of cases the provisions of the 15th section 
 would most frequently be made applicable, not- 
 withstanding that these cases are also provided 
 for by another kind of jurisdiction, by means of 
 special cases under the act introduced by Vice 
 Chancellor Turner, 13 & 14 Vict. c. 36. 
 
 Again some difficulty will be found in applying 
 this section, where the defendant upon being 
 served with the notice of motion does not appear. 
 See the 44th Order of August 1841, and Booth 
 v. Creswick. (a) 
 
 Again, if section 15 is to be applied to con- 
 tested cases, where there is a great conflict of 
 evidence, it would lead to all the mischief which 
 arose from the use of claims in the like cases. It 
 has been repeatedly observed by those of our 
 
 (o) Cr. & Ph. 361. 
 
168 THE NEW CHANCERY PRACTICE. 
 
 equity Judges, who have had most experience in 
 the mode of procedure by claim, that it can be 
 ■usefully employed only in very simple cases. 
 Where there has been a great conflict of affidavits, 
 the Court has declined to proceed in that mode, 
 and directed a bill to be filed. In Smith v. 
 Constant, decided by Lord Justice Knight Bruce 
 when sitting as Vice Chancellor soon after the 
 introduction of claims, and in which he ultimately 
 made a decree of foreclosure, that learned Judge 
 entered fully into the mischief and inconvenience 
 of extending the use of claims, to cases depending 
 on doubtful and conflicting evidence. Much of 
 the same reasoning would apply to section 15 of 
 the present act, and perhaps with this addition, 
 that in simplfe cases the remedy would in general 
 be by claim, and therefore the jurisdiction under 
 the section would not arise, and in complex cases 
 the Court would it is conceived be indisposed to 
 •apply so summary a remedy, and therefore the 
 jurisdiction would not be exercised. 
 
 It must not be forgotten, however, while ven- 
 turing thus to criticise this section, that there 
 may now be a cross-examination of the parties 
 vivd voce, which is a great protection against 
 false swearing. See Williams v. Williams, stated. 
 inf7'a, p. 174. 
 
 One object of section 15 seems to be gradually 
 to bring all the evidence taken in Chancery where 
 practicable or possible to affidavit evidence, as 
 being the quickest and cheapest. See remarks on 
 
MOTION FOR DECKEE. 169 
 
 affidavit evidence, m/ra, Chapter V, on Evidence, 
 section 2. 
 
 Assuming that the jurisdiction under the 15th 
 section is not perhaps likely to be often exercised 
 except in the case of decretal orders or decrees of 
 that nature, or else only in simple cases, the 
 Court would probably in most other cases direct 
 the suit to proceed m the ordinary way, but not 
 until considerable costs had been incurred in 
 making the experiment, and much inconvenience 
 had arisen from this preliminary but premature 
 and partial hearing of the cause. 
 
 See replies of Lord St. Leonards and Lord 
 Cranworth before the Chancery Commissioners 
 in answer to Question 40, (pp. 12, 27, Report), 
 as bearing on the subject of the 15th and 16th 
 sections of the Act, and on the mode of taking 
 evidence on interlocutory applications; and also, 
 on the latter point, the replies of Lord Justice 
 Knight Bruce, ibid. p. 231, Appendix (B). 
 
 If the defendant were not to appear on the 
 motion, the decree would probably in no case be 
 more than a decree nisi, in the first instance, sed 
 quaere. - - 
 
 This clause of the New Procedure Act enabling isth sec- 
 a motion to be made for a decree is retrospective, trospectivo, 
 and applies to suits instituted before the New 
 Procedure Act came into operation. The point 
 was so decided, after being reserved for the consi- 
 deration of the Judges, in Cousins v. Vasey. (a) 
 (a) 9 Hare, Appendix, p. xxxi. 
 
170 THE NEW CHANCERY PRACTICE. 
 
 Motions These motions for decree are in effect causes 
 
 1 01* QccrcG 
 
 to be heard and Hiust be set down in the regular cause list, 
 the 27th Order of the 7th of August 1852, which 
 requires a separate list of these motions to be 
 made, not being intended to give them any pre- 
 cedence. See the terms of the 27th Order, stated 
 in next page. Upon the usual certificate of counsel, 
 ■ such a motion for decree may be heard as a short 
 Qausfe, unless the counsel on the other side will 
 say that it is not fit to be so heard. See Drew 
 V. Long, (a) 
 
 Court may By the 16th section of the New Procedure Act 
 
 direct suit 
 
 to be pro- 15 & 16 Vict. c. 86, it is provided, that upon any, 
 
 secuted '«•,.„, i i n • 
 
 theordi- ^uch motiou for a decree or decretal order, it 
 shall be discretionary with the Court to grant or 
 refuse the motion, or to make an order giving 
 such directions with respect to the further prose- 
 cution of the suit, as the circumstances of the 
 case may require, and to make such order as 
 to costs as it may think right. 
 
 One By the 22nd of the General Orders of the 7th 
 
 month's 
 
 notice ro- day of August 1852, one month's notice is to 
 be given by the plaintiff to the defendant or 
 defendant^ of the motion for a decree or 
 decretal order. 
 
 Listof By the 23rd of the General Orders of the 
 
 affidavits —it n k 
 
 at foot of 7th day of August 1852, the affidavits to be 
 
 used in support of such motion are to be filed 
 
 before the service of such notice, and a list of 
 
 such affidavits is to be set forth at the foot of 
 
 (a) 17 Jur. 173. 
 
on 
 motion for 
 
 MOTION FOR DECREE. 171 
 
 such notice. The affidavits should be -specified 
 in this list in the order of their dates, so that 
 they may be obtained at once from the affidavit 
 office. 
 
 By the 24th of the General Orders of the 7th Time for 
 day of August 1852, the defendant within four- dawfs* ' 
 teen days after service of such; notice, is to file his dc°cree. 
 affidavits in answep and to furnish the plaintiff or 
 his solicitor with a list th^r0of ; and by the 25th 
 of the same Order, the plaintiff is, within seven 
 days more, to file those in reply, after which 
 there can be no further evidence except by leave 
 of the Court. 
 
 By the 27th of the General Orders of the 7th Motions 
 
 for decree 
 
 day of August 1852, every notice of motion for to be en- 
 
 tcrcQ with 
 
 a decree or decretal order is to be entered with the regis- 
 the registrar, who is to make out a list of such 
 motions, and the same are to be heard according 
 to such list unless the Court shall make ordeir to 
 the contrary. Under this order, these motions 
 will, therefore, appear in the regular cause paper, 
 and be heard in their turn like causes. 
 
 On a motion for a decree the answer of a Answer of 
 
 1 ' ir> • 1 onedefend- 
 
 defendant may be read ^gamst himself without- ant not to 
 notice having been given under the 23rd General against a 
 Order of the 7th day of August 1852, of the am without 
 intention to read it as an affidavit against such 
 defendant, but the answer of one defendant can- 
 not be read against another defendant without 
 notice being given to such other defendant of the 
 
172 THE NEW CHANCEKY PRACTICE. 
 
 coasmsv. intention to read it. In Cousins v. Vasey, (a) 
 "'"''' where this point arose, the Vice Chancellor 
 
 ^e^ ilupner, after communicating with the other 
 Judges, said, " the object of the Orders was 
 that the parties should have notice of all the 
 affidavits which were filed, and that the affi- 
 davits should be filed within a limited time. 
 The cause was then to be put in the same 
 position, as if the bill had been filed, the answer 
 put in, and publication had passed. The an- 
 swer was to be dealt with as it would have been 
 under the old practice, except that it was made a 
 part of the evidence in the cause, and to be 
 treated as an affidavit. The notice was neces- 
 sary as to the affidavits, for the affidavits were 
 now analogous to depositions of the taking of 
 which the opposite party must have notice, but 
 this did not apply to the answer of the defendant. 
 With respect to the question whether the answer 
 of one defendant could be read against a co- 
 defendant, the inconvenience which would be the 
 result of admitting the answers of every defend- 
 ant to be read against the others would be, that 
 every defendant would be under the necessity of 
 taking copies of the answers of all the other 
 defendants, whether he received notice or not. 
 The opinion of the Judges, and in which he 
 concurred, was, that the answers of defendants 
 ought not to be admitted as against other defend- 
 {a) 9 Hare, Appendix, p. Ixii, 
 
MOTION FOR DECREE. 173 
 
 ants, without special notice having been given of 
 the intention to use them, to the parties against 
 whom they were proposed to be read. As 
 against other defendants to whom such notice 
 was not given, the inconvenience of making the 
 answer generally receivable would be so great, 
 that the best construction of the Act and the 
 Orders was that they ought not to be received." 
 
 When a plaintiff gives a notice of motion for a to be en- 
 decree, under the 22nd General Order of the 7th registrar'' 
 of August 1852, and the 15th section of the ofjvii'r 
 New Procedure Act 15 & 16 Vict. c. 86, he ^lion 
 ought concurrently with giving the notice, to 
 enter the motion with the registrar. This was 
 the rule laid down by the full Court of Appeal in Boyd v. 
 Boyd V. Jag gar. (a) 
 
 If this is done, it is not necessary that the 
 plaintiff should give a further notice of setting 
 the motion down. 
 
 In Boyd v. Jaggar, the Court refused on an Where 
 ex parte application to give leave to set down the to sot down 
 motion, after the month had expired from the date af"cr°one 
 of the notice of motion, but the order was after- spired.*' 
 wards made by the Master of the Rolls upon notice. 
 
 Sect. 1 5 applies only to suits commenced by Motion for 
 bill and not to claims, to which it would for pUedonry 
 
 , . 1 in- !■ -LI to bills, not 
 
 obvious reasons be wholly mapplicable. to claims. 
 
 The 40th section of the New Procedure Act The 4oth 
 
 -r-r. n /» 1 . 1 • n ■ /» section of 
 
 15 & 16 Vict. c. 86, which is stated mjra, the New 
 
 Procedure 
 (a) 17 Jur. 655. 
 
174 THE NEW CHANCBRy PRACTICE. 
 
 Act ap. Oiaptep V, on Evidence, applies to mbtions for 
 
 motions for a dccres no less than to other proceedings:. 
 Cross-exa. Upqh a mo^ion for a decree, after affidavits, in 
 
 of plaintiff reply, the defendant may obtain an order to crossf 
 
 oh motion . t • ,• nr> t . ^ • ^ 
 
 for decree, cxamine a plamtiff by taking out a common sum- 
 wiiiiamsv. mons at chambers. In WilldmnsY. Williams^ {a) 
 the defendant took.! out a summons before the 
 chief clerk in chambers, tO: have a barrister 
 resident at 'Liverpool, appointed as the examiner 
 to take the cross-examination of the plaintiff, 
 who. had filed affidavits in reply, in support of 
 a notice of moticai for a decree under the 15th 
 section of the New Procedure Act. The order 
 was accordingly made. Upon an application 
 being made on the part of the defendant to 
 discharge this order, counsel relied on the 26th 
 General Order of the 7th of August 1852, which 
 directs that after affidavits filed in reply, no fur- 
 ther evidence on either side shall be used without 
 leave of the Court, and it was urged tbat the 
 38th section of the New Procedure Act, and the 
 32nd General Order of the 7th of August 1852, 
 applied only to causes in which issue had been 
 joined, and that the defendant's only course to 
 examine the plaintiff was to file interrogatories 
 under sect. 19 of the New Puocedure Act; but 
 upon an application to stay proceedings under 
 the order made by the chief clerk the Master .of 
 the Rolls ruled,, that the 40th section of the New 
 Procedure Act, which provides for the examina- 
 (a) 22 L. J. (n. s.) 639 ; S. C. 17 Jur. 434. 
 
MOTION FOR DECREE. 17S . 
 
 tion of any witness orally for .the purpose of 
 using his evidence upon any claim, motion or 
 other proceeding applied to every case that .Could 
 arise, and it^ therefore, authorized the order that 
 had been made. The Court, his Honor observed,i 
 had only prescribed- the time within which an 
 affidavit was to be made. It was but reasonable 
 that the clause should apply as well to motions 
 for a decree as to other proceedings ;' the wor^s 
 were general, and the obvious meaning was that 
 parties should be able to obtain an order similar 
 to the present. He did not think that the 40th 
 section was at aU controlled by the other sections 
 of the act or the General Orders, and he therefore 
 refused to disturb the order made by, the chief 
 elerk. This case is important as showing the 
 extent of the jurisdiction of the chief cleric at 
 chambers, as well as the construction which has 
 been put on the 40th section of the act. See 
 further on the question of jurisdiction, infrai, 
 Chapter IX, on Business at Chambers. 
 
 The svbpeeim ad tesiijicanekim or snApcena 
 duces tecum, under the 40th section of the New 
 Procedure Act, may be issued to compel the 
 attendance of a witness at the hearing of a 
 motion for a decree, as well where the evidence 
 in the cause is taken by affidavit, as where 
 it is taken before the examiner. Thus, in 
 Wigan v. Rowiand, (a) where the cause was 
 brought on upon a motion for a decree under the 
 (ffl) 10 Hare, Ajppendix, p. xviii. 
 
176 THE NEW CHANCERY PRACTICE. 
 
 16th section, the registrar of the Cohsistoiy 
 Court of the diocese of St. Asaph' being required 
 to attend with an original will to be used as 
 evidence in the cause, and the clerk of records 
 and writs having declined to issue the subpoena 
 for that purpose without the order of the Court, 
 the then Vice Chancellor Turner, after referring 
 to the 39th and 40th sections of the New Proce- 
 dure Act, said, " the question was whether it was 
 • necessary to appoint an examiner in order to 
 procure the- issuing of the subpoena. He thought 
 that was not necessary, and that the subpoena 
 ought to be issued. 
 
 It does not appear, however, that his Honor 
 
 considered any order of the Court requisite to 
 
 authorize the issuing of the subpoena, or that his 
 
 view of the 39th and 40th sections differed in 
 
 this respect from that taken by the two learned 
 
 Judges who decided May v. Biggenden and Smith 
 
 V. The Swansea Dock Company. See these cases 
 
 noticed infra, in Chapter V, on Evidence. 
 
 What The 36th of the General Orders of the 7th of 
 
 quired of August 1852, dirccts, that any party in any 
 
 witless'™ matter or cause requiring the attendance of any 
 
 "ecrer/""^ witness before an examiner for the purpose of 
 
 his being examined or cross-examined with a 
 
 view to his evidence being used upon any claim, 
 
 inotion, petition or other proceeding before the 
 
 Court, not being the hearing of a cause, shall 
 
 give to the opposite party or parties forty-eight 
 
 hours' notice at least of his intention to examine 
 
MOTION FOR DECREE. 1?7 
 
 such witness, and of the time and place of such 
 examination, unless the Court shall in any case 
 think fit to dispense with such notice. 
 
 The 37th of the General Orders of the 7th of what 
 
 notice of 
 
 August 1852, directs, that where it is desired to cross exa- 
 
 minatiop. 
 
 cross-examine any party, whether a party to the 
 cause or matter or not, who has made an affidavit . 
 to be used, or which shall be used on any claim, 
 motion, petition or other proceeding before the 
 Court, and not being the hearing of a cause, the 
 party desiring so to cross-examine such deponent 
 shall give such notice to the opposite party as is 
 required by the 34th of the same Orders with 
 reference to the cross-examination of a witness, 
 who has made an affidavit to be used on the 
 hearing of a cause. 
 
 With respect to costs upon the proceeding by Costs on 
 motion for decree the same rule is followed as decree, 
 in other cases, the general rule being that the 
 unsuccessful party pays costs, although the 
 question may have been doubtful and a proper 
 one to bring before the Court. In Dubbing v. 
 Patchin, (a) the Vice Chancellor Wood drew a 
 distinction in this respect between cases arising 
 on contract, and cases on the construction of wills, 
 the costs in the latter case usually coming out of 
 the estate under administration. 
 
 In Fortnum v. Cooper, {b) which came before 
 the Court upon a motion for a decree, the Vice 
 
 {a) Not reported, 7tli November 1853. 
 (J) Not reported, 9th November 1853. 
 
 N 
 
178 • THE NEW CHANCERY PRACTICE. 
 
 Chancellor Kindersley made a declaratory order 
 as to the rights of the parties under the 
 will of the testator in the cause, the plaintiff 
 waiving all other relief asked by the bill. The 
 bill in that case prayed a partition of the real 
 estate, and the taking of the usual accounts. 
 Upon a suggestion from counsel that it was 
 unnecessary to preface the decree with this 
 waiver of the relief sought by the bill, as the 
 notice of motion was only for the declaratory 
 order on the construction of the will, his Honor 
 said, "Although this case comes on upon a 
 motion for a decree, I must make the same 
 decree as would be made at the hearing of the 
 cause. You cannot have & partial decree." A 
 question then arose with respect to the costs. 
 There was no personal estate; and it was urged, 
 that if the usual declaration was introduced into 
 |;he decree for payment of the costs out of the 
 estate, they could only be raised by a stde of the 
 estate under the direction of the Court, and the 
 estate being divisible into about sixty fractional 
 shares, it. would be almost impracticable to work 
 out that part of the decree. But his Honor said, 
 that unless the parties could agree as to the 
 mode of providing for the costs out of Court, 
 there must be the usual direction that the costs 
 oug-ht to be raised out of the estate, or the plain- 
 tiff, who by the decree recovered four sevenths of 
 the estate, might be at liberty to pay the defend- 
 ant's costs, being three sevenths of the whole 
 
MOTION FOR DECREE. 179 
 
 costs, and to have a charge for that part of the 
 costs on the entire estate. 
 
 In this case, as in other cases of the like kind, 
 the declaratory order was made under the 50th 
 and 51st sections of the New Procedure Act, 
 although some only of the respective classes of 
 children, who were interested in the question of 
 construction were before the Court, his Honor not 
 considering it necessary to have all the children 
 who were so interested, parties to the suit. 
 
 In Norton v. Steinkppf(a), a motion was made Norton v. 
 under the 15th section for a decree in the terms "" '' 
 of the prayer of the bill, which sought the execu- 
 tion of the trusts of a settlement, and a declara- 
 tion as to the liability of a defaulting trustee. 
 The plaintiff's counsel asking at the bar that the 
 fund might be ordered to be paid into Court, it 
 was objected, that upon a motion for a decree 
 nothing more could be directed than was ex- 
 pressly sought by the notice of motion ; the Vice 
 Chancellor Wood, however, said, "As to the 
 objection that the decree could not go beyond 
 the terms of the notice of motion, the beneficial 
 object which the act of Parliament had in view, 
 would be wholly lost if the Court did not consider 
 a motion for a decree as equivalent to the hearing 
 of the cause. The relief now asked was incident 
 to the prayer of the bill." 
 
 The decree was accordingly made for the 
 payment of the money into Court. 
 
 (a) 1 Kay's Eeports, 45. 
 N 2 
 
180 the new chancery practice. 
 
 Section 4. 
 
 ON OTHEE INTEELOCUTORY APPLICATIONS. 
 
 Payment of money into Court at the hearing without 
 a motion^ payment out of Court, only on petition, 
 special directions as to mode of taking account, 
 former practice on this point, transfer made by 
 consent to chambers instead- of special directions, 
 interlocutory order for sale of real estate, former 
 practice as to sale of real estate, application may 
 • now be made immediately on bill filed, order made 
 only for protection of property and not to forestal 
 decision on points in the cause, payment of annual 
 income of property pending proceedings, motion 
 to take bill off the file for irregularity, motion to 
 appoint a special examiner, when interlocutory, 
 applications made in Court, when at chambers, 
 dismissal of bill for want of prosecution, when 
 motion may be made, when bill will be dis- 
 missed after order to amend, when after order 
 to amend without prejudice to an injunction, 
 when replication must be filed or cause set down 
 to avoid dismissal, when motion to dismiss pre- 
 mature, practice in other cases as to dismissal of 
 bill, pendency of exceptions for impertinence did 
 not prevent dismissal of bill under old practice, 
 when defendant may set down cause instead of 
 dismissing bill, dismissal of bill on plaintiff ^s 
 
INTERLOCUTORY API-LICATIONS. 181 
 
 own application, not after demurrer overruled, 
 Court sometimes enters into merits on motion to 
 dismiss, dismissal in cases of abatement, costs in 
 suck cases. 
 
 Money in the hands of executors or trustees Payment 
 
 "' ^ _ of money 
 
 will now be ordered to be paid into Court at the into Court 
 
 . . „ . at the hear- 
 
 hearing of the cause, without a notice of motion ing.without 
 
 , . . ^ a motion. 
 
 being required for that purpose. 
 
 Under the old practice a motion Avas required 
 to be made, founded on an admission in the 
 answer, in order to obtain the payment into 
 Court at the hearing of the cause, of money in 
 the hands of executors or trustees. 
 
 The reason of this rule was, that circumstances 
 affecting the fund, might have taken place after 
 the answer was put in, which might render it im- 
 proper to make the order, and which circumstances 
 the defendants had no opportunity of bringing 
 before the Court, as no affidavits could under the 
 old practice be used at the hearing of the cause. 
 
 It being now open to the parties to bring 
 before the Court any material circumstances not 
 in issue in the cause, by affidavit, the Court may 
 without any danger of injustice, make the order 
 at the hearing, without the form of a previous 
 notice of motion. Isaacs v. Weatherstone. (a) 
 
 The petition for payment out of Court of Payment of 
 
 money out 
 
 money which has been paid in under the Trus- of Court. 
 tees' Relief Act (10 & 11 Vict. c. 96) ghould set 
 
 (a) 10 Hare, Appendix, p. xxx. 
 
petition. 
 
 Blind 
 School V, 
 Goren, 
 
 182 THE NEW CHANCERY PRACTICE. 
 
 out the affidavit upon which the money was paid 
 into Court by, the trustee. In re Trusts of the 
 will of W. Black, (a) But the affidavit should 
 not be set out in extenso. The substance of it 
 will be Sufficient. 
 
 Only on In the case of The Blind School v. Goren, (b) 
 it was laid down by Lord Cranworth, when Vice 
 Chancellor, that the Court would not make an 
 order for payment of money out of Court, except 
 upon petition, however small the sum might be. 
 His Lordship observed that the case of Heathcote 
 v. Edwards (c) only shewed what the practice 
 was in the time of Lord Eldon, but it was very 
 clear that a contrary rule had prevailed in the 
 Courts for a great many years. See Garrattw. 
 Niblock. (d) 
 
 Special By the 54th section of the New Procedure Act, 
 
 directions . , • n i i 
 
 as to mode 15 & 16 Vict. c. 86, it IS providcd that in any 
 account on casc whcre any account is required to be taken, 
 tory appii- the Court may by the decree or by any subse- 
 quent order give such special directions as it may 
 think fit with respect to the mode in which the 
 account should be taken or vouched, and may 
 direct that in taking the account the books of 
 account in which the accounts required to be 
 taken have been kept, shall be taken as primd 
 facie evidence of the truth of the matters therein 
 contained. 
 
 (a) 10 Hare, Appendix, p. xxx. 
 (J) 21 L. J. (k. s.) 144. 
 
 (c) Jac. 504. 
 
 (d) 5 Beav. 14.3. 
 
 cation. 
 
INTERLOCUTORY APPLICATIONS. 183 
 
 The Court could always give special directions Former 
 
 il.1- 1 . IT 1 practice on 
 
 at the hearing to determine beforehand, how the this point. 
 account should be taken, or how substantiated, 
 by dispensing with the ordinary vouchers, re- 
 quiring admission of documents, making entries 
 in trade books primd facie evidence, or otherwise, 
 according to circumstances; but it was often 
 necessary to go into a mass of evidence for the 
 purpose, and after all, the Court was rarely in- 
 clined to insert such special directions in the 
 decree. See Lord Eldon's observations in Lupton 
 V. White, (a) 
 
 The question what documents not having the 
 character of strict legal evidence were admissible, 
 or what extent of deviation from the usual proofs 
 was allowable, from the specialty of , the case, 
 generally arose upon exceptions to the Master's 
 report. 
 
 The whole account had then been taken, upon 
 one footing or the other as to rules of evidence, 
 and if the Court on hearing the exceptions hap- 
 pened to dissent as to the mode of proof admitted 
 in the Master's office, the whole account to which 
 the exceptions went had possibly to be taken over 
 again, the Master by direction of the Court then 
 adopting a different rule with respect to the 
 proofs. See Morehouse v. Newton, (b) See also 
 a late case of Coioard v. Coward, (c) before the 
 
 (o) 15Ves. 442. 
 
 (b) 3 De &. & Sm. 307. 
 
 (c) 13 Jur. 420. 
 
184 THE NEW CHANCERY PBACTICE. 
 
 same Judge in a note to Morehouse v. Newton. A 
 partnership ledger which was there produced by 
 the plaintiflf to shew items to his credit, and was 
 afterwards so far adopted by the defendant that 
 he used it to prove entries on his side of the 
 account, was allowed by that learned Judge on 
 the ground that it was continuous in substance, 
 as well as in paper and handwriting, to be taken 
 as primd facie evidence to prove further items to 
 the plaintiff's credit, though there was no other 
 evidence of any kind to support those entries. 
 
 The substitution of applications in the nature 
 of interlocutory applications in such cases, while 
 the account is going on, instead of exceptions 
 afterwards, will be a great convenience and saving 
 of expense, and the order being made with liberty 
 to the parties interested to take objections instead 
 of an absolute previous direction to the Master, 
 will prevent any hazardous exercise of the juris- 
 diction. 
 Transfer In Lodge V. Pnchavd, (a) where, before the 
 consent to passiug of the New Procedure Act 15 & 16 Vict, 
 instead of c. 86, a reference had been made to the Master 
 fpldfi to take accounts; the Vice Chancellor Stuart 
 refused to direct on motion that certain books of 
 account should be taken as primd facie evidence 
 of the truth of the matters therein contained. 
 His Honor suggested that the whole matter 
 might be transferred to chambers. In conse- 
 quence of this suggestion an order was afterwards 
 (») 20 L. T. 274. 
 
INTERLOCUTORY APPLICATIONS. 185 
 
 made, by consent, for transferring the matter to 
 
 the Vice Chancellor at chambers. 
 
 The 55th section of the New Procedure Act, interlocu- 
 tory order 
 15 & 16 Vict. c. 86, provides that if after a snit for sale of 
 
 shall have been instituted in relation to any real 
 estate, it shall appear to the Court, that it will be 
 necessary or expedient that the said real estate or 
 any part thereof should be sold for the purposes 
 of suph suit, the Court may direct the same to be 
 sold, at any time after the institution thereof, and 
 such sale will be as valid to all intents and pur- 
 poses as if directed to be made by a decree or 
 decretal order on the hearing of the cause. 
 
 Formerly the parties had to wait for a direction Former 
 
 . . . , . practice as 
 
 to sell the real estate m question m the suit, not to sale of 
 only until the decree in the cause, but generally 
 until the decree on further directions, that is 
 until all the accounts had been taken, and class 
 inquiries, and other inquiries answered by the 
 Master in the shape of a general report. 
 
 There was then the delay of settling the parti- 
 culars and conditions of sale, which could of 
 course only be done after an investigation of the 
 title, then the first advertisement of the sale, then 
 after three or four weeks more, a warrant before 
 the Master to fix the time of sale, then what is 
 called the peremptory advertisement, and all the 
 other consequential proceedings. 
 
 In many cases, it is at once evident in a very Applica- 
 tion may 
 early stage of the suit, that there must neces- now be 
 
 _ , , ,. made im- 
 
 sarily be a sale. In such cases, these proceedings mediately 
 
186 THE NKW CHANCEEF PBACTICE. 
 
 upon bill for sale may now under this section of the act 
 
 filed. •' . , 1 
 
 be going on simultaneously with the general 
 proceedings in the cause. An application for the 
 purpose supported by proper affidavits may be 
 made immediately upon the bill being put 
 upon the file, and if the plaintifi' should take no 
 step to procure such an order for sale, or should 
 refuse to apply for it, it is presumed that after a 
 reasonable time such an application might be 
 made by any defendant. 
 Before sale The 56th scctiou of the New Procedure Act 
 
 or 6 si! 3,^6 
 
 abstract of 15 & 16 Vict. c. 86, regulates the mode in which 
 laid before any Sale of real estate under the previous section, 
 veyancing Or Under a decrcc, shall be conducted, by directing 
 that before any estate or interest shall be put up 
 for sale under a decree or order of the Court of 
 Chancery, an abstract of the title thereto shall, 
 with the approbation of the Court, be laid before 
 some conveyancing counsel to be approved by the 
 Court, for the opinion of such counsel thereon, to 
 the intent that the said Court may be the better 
 enabled to give such directions as may be neces- 
 sary respecting the conditions of sale of such 
 estate or interest, and other matters connected 
 Time for with the salc thereof; and when an estate or 
 
 delivery of , i ii i 
 
 abstract to interest shall be so put up for sale, a time for the 
 (iedincon. dclivcry of the abstract of title thereto to the 
 sli'e° ' ° purchaser or his solicitor shall be specified in the 
 
 said conditions of sale. 
 
 This section directing the abstract of title to 
 
 be laid before one of certain designated convey- 
 
INTERLOCUTORY APPLICATIONS. 187 
 
 ancing counsel, approved by the Court, though 
 not officers of the Court, and having no official or 
 responsible relation to it, may perhaps be open to 
 comments which it would not be fitting to make 
 here. 
 
 It was done by the Master under the former 
 practice, the Master also making choice of the 
 counsel whose opinion should be taken. But this 
 was often distasteful to the parties, and was felt 
 by some to be an interference with the free exer- 
 cise of their discretion, beyond what was required 
 for the purposes of administration by the Court. 
 
 The practice, though perhaps objectionable in 
 more ways than one, and not less so now, than 
 when the unrestricted choice of the counsel rested 
 with the Master, seems to have had to some ex- 
 tent the sanction of Lord Eldon in Flower v. 
 Walker, (a) 
 
 The counsel selected by the late Lord Chancellor, 
 for this high, but somewhat invidious distinction, 
 are, Mr. Brodie, Mr. Coote, Mr. Christie, Mr. 
 Hayes, Mr. Jarman, and Mr. Lewin. See section 
 41 of the Master in Chancery Abolition Act, 
 15 & 16 Vict. c. 80. See further as to the duties 
 of the conveyancing counsel, infra, Chapter IX, 
 Business at Chambers. 
 
 In Prince v. Cooper, {b) the Master of the Order only 
 
 . n 1 AT made for 
 
 Rolls said that the 55th section oi the sseyf protection 
 
 XT* r» of property, 
 
 Procedure Act 15 & 16 Vict. c. 86, was meant nottofore- 
 
 (o) 1 Eusa. 408. 
 (fe) 20 L. T. 269. 
 
188 THE NEW CHANCERY PBACTICE. 
 
 staidcci- to apply itt those cases where, for the pro- 
 pouite in tection of the property, or for any other cause, 
 c cause. .^ ^^^ neccssary to come to the Court for a sale, 
 but not to enable a party in a contested suit, 
 upon such an application to obtain a decision of 
 the questions in the cause before the hearing; 
 and he should discourage any such attempt. 
 
 In that case there was a dispute between the 
 cestuis que trust audi the trustees with respect to 
 their management of the property, (a) 
 Order for The 57th sBctiou of the New Procedure Act 
 
 payment of 
 
 annual 15 & 16 Vict. c. 86, provides that where any real 
 
 income of i ii p i i • r 
 
 property Or personal property shall form- the subject of any 
 proceed, proceedings in the Court of Chancery, the Court, 
 ^^' if satisfied that the same will be more than sufficient 
 
 to answer all the claims thereon which ought to 
 be provided for in the suit, may at any time after 
 the commencement of such proceedings allow to 
 the parties interested therein, or any one or more 
 of them, the whole or part of the annual income 
 of such real property, or a part of such personal 
 property, or a part or the whole of the income 
 thereof. 
 
 This would sometimes be done under the for- 
 mer practice, but not frequently. It was done 
 where requisite for the maintenance or advance- 
 ment of infants. Sometimes, too, an advance was 
 
 (a) In Ma/rtki v. Sadlow, above referred to, an order was 
 made for sale of the real estate on the petition of the 
 plaintiff, a devisee, pending class inquiries directed on -the 
 hearing of an administration claim. The wiU contained 
 a trust for sale. Not reported, M. E., 18 Dec. 1852. 
 
INTERLOCUTORY APPLICATIONS. 189 
 
 made out of the capital fund, to enable two classes 
 of claimants to defray the expense of the trial of 
 an issue, as in Gregg v. Taylor, (a) The same 
 jurisdiction . would occasionally be exercised in 
 other special cases of the like nature. 
 
 In the case of an administration suit, any 
 party beneficially interested, may now make an 
 interlocutory application, at any time after the 
 institution of the suit, and the Court, upon being 
 satisfied that the estate is more than sufficient 
 for payment of all debts and charges, will order 
 the whole or a part of the income to be paid to 
 the devisee or legatee entitled. (6) 
 
 The order will not extend beyond the yearly 
 rents and profits in the case of real estate. 
 
 In the case of personal estate it may, under 
 special circumstances, extend to the whole or part 
 of the corpus. 
 
 Another instance of an interlocutory applica- 
 tion in a suit, is the motion by a defendant to 
 take a bill off the file for irregularity. Where 
 this course is taken with respect to a supple- Motion to 
 mental bill, the notice of motion must be headed oir the file. 
 in the supplemental suit, otherwise no order can in supple- 
 be made, even as it seems though all parties 
 before the Court should be willing to waive the 
 
 (a) 4 Euss. 279. 
 
 (h) See Stacey v. Soifihey, 1 Drewry, 400. In Boyd v. 
 Jagger, a like order was made on the motion of the plaintifF 
 for a receiver and allowance pendente lite, the plaintiff as 
 heiress claiming ceirtain property as not included in a 
 settlement. Not reported, see svpra. 
 
190 THE NEW CHANCERY PRACTICE. 
 
 Lee y. Lee. objection. Thus in Lee v. Lee, (a) where a 
 motion was made to take a supplemental bill off 
 the file for irregularity, and the notice of motion 
 was headed only in the original suit, the Lords 
 Justices declined to make any order. Their 
 Lordships thought that the objection was of such 
 a nature that it could not be waived, since there 
 were other parties defendants to the supplemental 
 bill who were not before the Court. " It was clear 
 that a motion to take a supplemental bUl off the file 
 for irregularity, ought to be headed in that suit 
 which was instituted by the supplemental bill, and 
 all the defendants to such supplemental bill ought 
 to be served with notice of the motion. Such 
 being the case, their Lordships were of opinion 
 that although the objection was not taken in the 
 Court below, and although the counsel for the 
 plaintiff in the supplemental suit had agreed to 
 waive the objection, they cotild not hear the pre- 
 sent motion, as they had no jurisdiction to do so. 
 The motion, however, might stand over, with 
 liberty to amend, and might be brought on before 
 the Court of Appeal as an original motion." 
 
 Another kind of interlocutory application under 
 the new practice, is the motion that a person 
 should be specially appointed by the Court to 
 examine witnesses. This is not a motion of 
 course, but ought to be made in Court. In 
 
 (a) 21 L. T. 147. 
 
INTERLOCUTORY APPLICATIONS. 191 
 
 M'Neill V. Acton^ (a) the Vice Chancellor Stuart 
 said, that as the act mentioned " an examiner to 
 be^pecially appointed by the Court," he thought 
 that the application was properly made there, 
 and his Honor accordingly made the order. See, 
 however, Williams v. Williams, supra, p. 174. 
 
 So a motion under the 19th section of the 
 13 &, 14 Vict.- c. 35, commonly called Sir George 
 Turner's Act, for a reference to the Master 
 to take an account of the debts of a deceased 
 person, was one which was required to be made 
 in Court under the former practice. In re Har- 
 rold. (b) But such a motion would not now be - 
 made. There are many other kinds of motions 
 and petitions which it is not thought necessary 
 to mention here, as being common both to the 
 old and the new practice. 
 
 It is not at present clearly defined under the 
 new practice, what interlocutory applications are 
 to be made in open Court, and what are proper 
 to be made in chambers. 
 
 In a case (c) before the Vice Chancellor 
 Turner, his Honor said, " applications by con- 
 sent for suppression of depositions ought in ge- 
 neral to be made at chambers, but as the present 
 application was besides to take the evidence 
 orally under the new practice, it was proper to 
 make the application in Court." 
 
 (a) 22 L. J. (n. s.) 584. 
 (6) 20 L. J. (N. s.) 168. 
 (e) Anon. 16 Jur. 1129. 
 
192 THE NEW CHAXCERY PRACTICE. 
 
 For examples of interlocutory applications 
 proper to be made at chambers, see infra, Chapter 
 IX, on " Business at Chambers." • 
 
 Defendant The practicG with respect to the dismissal of 
 been re-"^ biUs for Want of prosecution is now regulated as 
 answfr,'and foUows. By the 27th section of the New Pro- 
 ."°g?mt"" cedure Act, 15 & 16 Vict. c. 86, it is provided 
 dlsmlssaVof ^^^^ wherc a defendant to a suit in the said Court 
 want'of commenced by bill shall not have been required 
 Sot^™" *° answer the bill, and shall not have answered 
 the same, such defendant shall be at liberty 
 to move to dismiss the bill for want of prosecu- 
 tion, at such times, and under such circumstances, 
 and subject to such restrictions as shall be in that 
 behalf prescribed by any General Order of the 
 Lord Chancellor. 
 Dismissal By the 29th of the General Orders of the 7th 
 want of of August 1852, a defendant to a suit commenced 
 tionTfujr by bill, who shall not have been required to 
 months answcr the bill, and shall not have answered the 
 pearance. samc, shaU bc at liberty to apply for an order to 
 dismiss the bill for want of prosecution, at any 
 time after the expiration of three months from 
 the time of his appearance, unless a motion for a 
 decree or decretal order shall have been set down 
 in the meantime or the cause shall have been set 
 down to be heard, and the Court may upon such 
 application, if it shall think fit, make an order 
 dismissing the bill, or make such other order, or 
 impose such terms as may appear just and 
 reasonable. 
 
INTERLOCUTORY AMPLICATIONS. 193 
 
 The 27th section of the New Procedure Act 
 applies only to the single case where a defendant 
 has not been required to answer, and has not- 
 answered the bill, and as this is not likely to 
 happen very often, where there is anything like a 
 contest involving disputed facts, the jurisdiction 
 as to dismissing bills under this section will not 
 be so frequently exeijcised, as in the various cases 
 coming within the Orders of May 1845. 
 
 The Court will no doubt give the plaintiff -when 
 further indulgence mstead of dismissing his bill indulgence 
 upon the same grounds and upon the same terms, given. 
 in this as in other cases ; but with this exception, 
 that as no time will be occupied in considering 
 the case made by the answer, none being ex 
 hypoihesi required or filed, there will be the less 
 excuse for the plaintiff, unless voluminous docu- 
 ments have been produced under sect. 18, in 
 not proceeding at once to file replication under 
 sect. 26, or to move for a decree under sect. 15, 
 or to set down the cause. 
 
 The 29th of the General Orders of August 
 1852, which prescribes the time for proceeding 
 under the above section of the act, providing 
 that the defendant may apply " at any time after 
 the expiration of three months from the time of 
 his appearance, unless a motion for a decree or 
 decretal order shall have been set down in the 
 meantime, or the cause shall have been set down 
 to be heard," makes no distinction in termg 
 
 o 
 
194 THE NEW CHANCERY PRACTICE: 
 
 between cases where evidence is gone into and 
 where not, but of course if a long time were 
 unavoidably occupied by the plaintiff's evidence, 
 that would be a ground for further indulgence. 
 
 In all those cases, where an answer is filed, or 
 a plea to the whole bill put in, or an order has 
 been obtained for leave to amend but not acted 
 on, and the like, the practice will remain as regu- 
 lated by the 16th General Order of May 1845. 
 When bill By the 16th Order of the 8th of May 1845, 
 
 Will DG Q1S« 
 
 missed after art. 34, the plaintiff having obtained an order for 
 
 amend. leave to amend his bill, has, in all cases in which 
 
 such order is not made without prejudice to an 
 
 injunction, fourteen days .after the date of the 
 
 order within which he may amend such bill; 
 
 If such bill be not amended within such four- 
 teen days, the order for leave to amend becomes 
 void, and the cause as to dismissal stands in the 
 same situation as if such order had not been 
 made. 
 When after Bv art. 35 of the same Order, the plaintiff 
 
 order to / . ^ . 
 
 amend haviug obtained an order for leave to amend his 
 
 without , .„ . , . T . . 
 
 prejudice Dill without prejudice to an injunction, must 
 junction, amend such bill within seven days- from the date 
 of the order; 
 
 If such bill be not amended within such seven 
 
 days, the order for leave to amend becomes void, 
 
 and the cause as to dismissal stands in the same 
 
 situation as if such order had not been made. 
 
 ^ic°ation ^^y ^^^"^ ^^ °^ *^® ^^^^ Order, the plaintiff not 
 
INTERLOCUTORY APHICATIONS. 195 
 
 obtaining an order for leave to amend his bill, must be 
 must either file his replication, or set down the cause set 
 cause to be heard within four weeks, after the av^d du- 
 last answer is deemed or found to be sufficient ; Sii!* "* 
 
 Otherwise, any defendant may move to dismiss 
 the bill for want of prosecution. 
 
 The time for the plaintiff to take any step in the when 
 
 ./J. motion to 
 
 cause on failure of which he is liable to have the dismiss 
 
 , ... J. . T « - . . - premature. 
 
 bill dismissed for want of prosecution, does not, at 
 least in some cases, expire till after twelve o'clock 
 at night. In Collett v. Preston (a), the defendant 
 gave notice of a motion to dismiss, before eight 
 o'clock on the evening of the day, on which the 
 plaintiff 'sfour weeks' time to amend his bill expired 
 under the 33rd art. of the 16th Order, 8th May 
 1845. The 118th of the same Orders providing 
 that the defendant should not be at liberty to 
 dismiss for want of prosecution, until after the 
 expiration of the time within which the plaintiff 
 might obtain an order to amend his bill, Lbrd 
 Cranworth, when Vice Chancellor, held that' as 
 the plaintiff might have filed replication up to 
 twelve o'clock at night, the notice to dismiss was 
 given before the plaintiff was in default; his 
 Lordship therefore refused the motion with costs. 
 
 By art. 39 of the 16th Order of the 8th May when 
 1845, where the plain tiflF amends his bill without mJsrbe"" 
 requiring an answer to the amendments, and' no cause set 
 answer put in thereto, and no warrant for further oth"" cases 
 
 (a) 20 L. J. (N. s.) 228. 
 
 o 2 
 
196 THE NEW CHANCEBT PRACTICE. 
 
 to avoid time to answer the same is served within eight 
 ^_^missa o ^^^^ ^^^^^ service of the notice of the amendment 
 of such bill, the plaintiff is after the expiration of 
 such eight days, but within fourteen days from the 
 time of such service, either to file his replication 
 or to set down the cause to be heard upon bill 
 and answer; 
 
 Otherwise, any defendant may move to dismiss 
 the bill for want of prosecution. 
 
 By art. 40 of the same Order, where the plaintiff 
 amends his bill without requiring an answer to 
 the amendments, and a defendant, within eight 
 days after the service of the notice of the filing of 
 the amended bill, serves a warrant for further 
 time to answer the amendments, but the Master 
 refuses to grant such further time; the plaintiff 
 is within fourteen days after such refusal either 
 to file his replication, or to set down the cause to 
 be heard on bill and janswer ; 
 
 Otherwise, any defenda;nt may move to dismiss 
 the bill for want of prosecution. 
 
 By art. 41 of the same Order, if a defendant 
 puts in an answer to amendments to which the 
 plaintiff has not required an answer, the plaintiff 
 must within fourteen days after the filing of such 
 answer, either file his replication, or set down the 
 cause to be heard on bill and answer, unless in 
 the meantime he obtains from the Court a special 
 order for leave to except to such answer or to 
 amend the bill; 
 
INTEBLOCUTOKY APPLICATIONS. 197 
 
 Otherwise, any defendant may move to dismiss 
 the bill for want of prosecution. 
 
 The pendency of exceptions to the defendant's Pendency 
 
 r • • T 1 /> of excep- 
 
 answer tor impertmence under the former prac- tions for 
 tice did not prevent his moving to dismiss the nenbe did 
 bill for want of prosecution. This was held in dUrms^arof 
 Stuart V. Lloyd, (a) by Lord Cranworth, when old pr"ac" 
 Vice Chancellor. It was argued, that by ex- ""*" 
 punging the impertinence, the answer might be- 
 come insufficent. But his Lordship said, that 
 within the meaning of the 16th Order'of 1845, 
 the ans.wer must be taken to be sufficient, and 
 the defendant was right in moving. 
 
 Such a case as this could not now arise, the 
 exceptions for impertinence being abolished. 
 
 By art. 45 of the same Order, within four wi,cn bill 
 weeks after publication has passed, the plamtm missed ifter 
 
 -, ,', T 1 • 1 publication 
 
 IS to set down his cause and obtain and serve a has passed. 
 subpoena to hear judgment; 
 
 Otherwise, any defendant may move to dismiss 
 the bill for want of prosecution. 
 
 By the 114th Order of the 8th of May 1845, other cases 
 
 . 1 /^ '° which 
 
 any defendant may upon notice move the Court, wii win be 
 that the bill may be dismissed with costs for for want 
 want of prosecution, and the Court may order cutron!*", 
 accordingly; 
 
 1. If the plaintiff having obtained no order 
 to enlarge the time, does not obtain and 
 serve an order for leave to amend the bill, 
 
 («) 1 Sim. (K-. s.) 56 ; see S. C. 3 McN. & Gr. 181. 
 
198 THE NEW CHAiJCERY PBACTICE. 
 
 or does not file the replication, or set down 
 the cause to be heard on bill and answer, 
 within four weeks after the answer, or the 
 last df the answers, is found or deemed to 
 be siufficient, or after the filing of a tra- 
 versing note. 
 
 2. If the plaintiff having" undertaken to reply 
 to a plea to the whole bill, does not file his 
 replication within four wepks after the date 
 of his undertaking. 
 
 3. If the plaintiff having obtained no order to 
 enlarge the time, does not amend the bill 
 within fourteen days after the date of the 
 order for leave to amend. 
 
 4. If the plaintiff having obtained no order to 
 enlarge the time, does not set down the cause 
 to be heard and obtain and serve a subpoena 
 to hear judgment within four weeks after 
 publication has passed. 
 
 By the 115th Order of the 8th of May 1845, 
 where the plaintiff has after answer amended his 
 bill, without requiring an answer to the amend- 
 ments, any defendant may, upon nqtice, move to 
 dismiss the bill with costs for want of prosecu- 
 tion, if the plaintiff, having obtained no order to 
 enlarge the time, does not file the replication or 
 set down the cause to be heard on bill and 
 answer within the times following, viz. .•^- 
 
 1. Within fourteen days after service of notice 
 of the amendment of the bill, in cases where 
 
INTERLOCUTORY APPLICATIONS. 199 
 
 the defendant does not desire to answer the 
 amendments. 
 
 2. Within fourteen days after the " Master's 
 refusal to allow further time in cases where 
 the defendant, desiring to answer, has not 
 put in his answer within eight days after 
 the service of notice of the amendment of 
 the bill, and the Master has refused to allow 
 further time., 
 
 3. Within fourteen days after the filing of an 
 answer, in cases where the defendant has 
 put in an answer to the amendment, unless 
 the plaintiff has, within such fourteen days, 
 obtained from the Court a special order for 
 leave to re-amend the bill. 
 
 By the 116th Ord^r of the 8th of May 1845, when 
 if, after publication passed, the plaintiff neglects iifay"et'' 
 to set down the cause to be heard, any defendant ca"se, in- 
 after the expiration of four weeks may set the moving to 
 same down at his own request, instead of pro- ^"""^'• 
 ceeding to dismiss the bill for want of prosecu- 
 tion, and may obtain a subpoena to hear judgment 
 and serve the same on the plaintiff. 
 
 By the 117th Order of the 8th of May 1845, Effect of 
 if the plaintiff, after the cause is set down to be of bill on 
 heard, causes the bill to be dismissed on his own Swn"appiu 
 application, or if the cause is called on to be *"' 
 heard in Court, and the plaintiff makes default, 
 and by reason thereof the bill is dismissed, then 
 and in such case such dismissal is, unless thd 
 
200 • THE NEW CHANCERY PKACTICE. 
 
 Court otherwise orders, to be equivalent to a 
 dismissal on the merits, and may be pleaded in 
 , bar to another suit for the same matter. 
 
 No order By the 11,8th Order of the 8th of May 1845, 
 
 to dismiss "' ■' 
 
 until after a defendant is not to be at liberty to move to 
 
 expiration ^ ■' 
 
 of time to dismiss a bill for want of prosecution, until after 
 
 amend. 
 
 the expiration of the time within which a plaintiff 
 may obtain an order to amend such biU. 
 Plaintiff After a general demurrer to a bill has been 
 
 cannot dis- ° ' * . . . 
 
 miss his Overruled on argument, the plaintiff is not enti-- 
 
 bill by 
 
 order of tied as of course to an order dismissing his bill 
 
 course after •mi ■ • i -i 
 
 demurrer lor Want of prosecution. This was intimated by 
 Lord Cottenham, in Cooper v. Lewis (a), to be 
 the practice, though in that case the decision 
 proceeded on the ground that the order to dismiss 
 had been irregularly obtained on a petition as of 
 course at the Rolls, suppressing the fact of the 
 overruling of the demurrer. 
 
 It appeai-ed in that case that the defendant had 
 presented a petition of appeal from the order 
 overruling the demurrer; but this had not been 
 served on the plaintiff, nor had any deposit been 
 paid under it when the plaintiff obtained his 
 order to dismiss. 
 Emrtimes ^xcept Under special circumstances the Court 
 but rarely,' will not, on a motiou to dismiss a bill for want of 
 
 enters into 
 
 the merits prosccutiou, enter into any considerations bevond 
 
 on motions •' 
 
 to dismiss, those relating to the conduct of the cause. 
 But where the interference of the Court is neces- 
 sary to prevent injustice being done, as, e. g., to 
 (a) 2 Phil. 178. 
 
INTBKLOCUTORY APPLICATIONS. 201 
 
 prevent a plaintiff being compelled to go into 
 evidence in a cause and proceed to the hearing, 
 where the whole Subject of the suit is at an end, 
 the Court would direct the motion for dismissal of 
 the bill with costs for want of prosecution to stand 
 over, in order to give the plaintiff an opportunity 
 of applying to stay proceedings in the cause. 
 This was done in a late case of Pinfold v. Pin- Pinfou v. 
 fold, (a) In that case the defendant was a 
 pauper and had created unneoessafy expense by 
 putting in an answer in the. suit, after the 
 plaintiff had recovered the pi-bpeBty in dispute 
 by an ejectment at law, and. had entered into 
 possession, and under those circumstances, instead 
 of making any order on the defeitdant's motion 
 to dismiss, the Court, on the plaintiff's motion 
 to stay proceedings, ordered the bill to be dis- 
 missed without costs. 
 
 ' By the 63rd Order of the 8th of May 1845, in Dismissal 
 cases where a suit abates by the death of a sole oases of 
 plaintiff, the Court upon motion of any defendant " * ™™ ' 
 made on notice served on the legal representative 
 of the deceased plaintiff, may order that such 
 legal representative do revive the suit within a 
 limited time or that the bill be dismissed. 
 
 It seems that on dismissing the bill under this co<>ts in 
 Order it is not the practice to give costs against 
 the representatives of the deceased plaintiff. See 
 Powell V. Powell^ cited in Norton v. WMte^ infra. 
 
 (o) 9 Hare, Appendix, p. xiv. 
 
mite. 
 
 202 THE NEW CHANCERY PKACTICE. 
 
 So where the abatement takes place by the death 
 of a defendant, on a motion by his representatives 
 that the plaintiff do revive or that the biU may 
 be dismissed, the Court will not give costs against 
 A^rton V. the plaintiff. Thus, in Norton v. White (a), 
 which was a suit instituted by a vendor against 
 a purchaser to enforce the specific performance 
 of an agreement for a purchase; after there had 
 been the- usual order of reference as to the title 
 and a report in favour of the plaintiff, the defend- 
 ant died. Upon a motion by his executors and 
 devisees in trust that the plaintiff might revive 
 the suit, or that the bill might stand dismissed,' 
 their Lordships ordered that the plaintiff should 
 revive on or before the 1st of September 1852, or 
 in default thereof, that the bill should stand dis- 
 missed for want of prosecution. No order appears 
 to have been made as to costs. See also Beeves 
 V. Baker, (5) cited in a note to the above case of 
 Norton v. White. 
 
 (o) 13 Beav. 115. (6) 2 De G. McN. & G. 678. 
 
203 
 
 CHAPTER V. 
 ON EVIDENCE. 
 
 Section I. 
 
 Issue to be joined by filing replication, in what 
 form, replication to be filed though no aiiswer, 
 supplemental answer filed by consent without 
 withdrawal of replication, replication not neces- 
 sary where motion for decree, what notice of 
 filing replication where an absconding defendant, 
 old mode of examining witnesses on interroga- 
 tories abolished, plaintiff to give notice how he 
 wishes evidence taken, seven days' notice by 
 plaintiff required, evidence to be oral if any 
 party desires it, to he taken in the presence of 
 parties counsel and solicitors, Court will not 
 appoint two examiners, when special examiner 
 appointed, examination de bene esse within the 
 act, course where witness too ill to attend, when 
 evidence to be closed, within nine .weeks after 
 issu£ joined, no commission necessary within the 
 jurisdiction, original depositions to be transmitted 
 to the record office, clerical error in depositions, 
 decree against defendant after examining him as 
 
204 THE NEW CHANCERY PRACTICE. 
 
 a witness, subpoena to compel attendance of a 
 party at the hearing, when affidavits admissible 
 though evidence taken orally, crossrexamination 
 and re-examination, how evidence taken in old 
 suits. 
 
 Issue to By the 26th section of the New Procedure 
 
 be joined 
 
 by filing Act 15 & 16 Vict. c. 86, in suits commenced by 
 bill where notice of motion for a decree or decretal 
 order shall not have been given, or having been 
 given where a decree or decretal order shall not 
 have been made thereon, issue is to be joined by 
 filing a replication in the form or to the effect of 
 the replication under the then existing practice, 
 and where a defendant shall not have been 
 required to answer and shall not have answered 
 the plaintiflp 's biU, he is to be considered to have 
 
 In what traversed the case made by the bill. See form of 
 replication, infra. Appendix of Forms. 
 
 Replication By the 28th of the General Orders of the 7th 
 
 though no of August 1852, where a defendant shall not 
 have been required to answer, and shall not have 
 answered the plaintiff's biU, so that under the 
 26th section of the New Procedure Act 15 & 16 
 Vict. c. 86, he is to be considered as having 
 traversed the case made by the bill, issue is 
 nevertheless to be joined by filing a replication, 
 in the form or to the effect of the replication 
 in use before the commencement of the new 
 practice. 
 
 answer. 
 
EVIDENCE. 205 
 
 A supplemental answer may by consent be Suppie- 
 filed after replication, without withdrawing the answer 
 
 , , filed by 
 
 replication already filed. consent 
 
 This was held in Parsons v. Hardy, {a) in withdrawal 
 which case the then Vice Chancellor Turner tion. 
 said, he thought it would h^ve been more 
 regular to withdraw the present and file a new 
 replication, but he -^ould make the order as 
 asked by the notice of motion on the 'authority 
 of Jackson v. Parish, (b) 
 
 A replication is not necessary when the plaintiff Not neces- 
 
 sary where 
 
 is proceeding under the 15th section of the New motion for 
 Procedure Act, by motion for a decree, but where 
 the decretal order has not been made, and the 
 suit is to be proceeded with in the ordinary form, 
 there a replication must be filed. The 26 th 
 section of the act, and the 28th General Order, 
 apply to cases where the motion for the decretal 
 order has failed, and where it becomes necessary 
 to proceed with the suit in the ordinary way. 
 The replication ' is unnecessary and improper 
 where the plaintiff is proceeding to move for 
 a decretal order, and the notice of motion is 
 pending. 
 
 In Duffield v. Sturgis, (c) the plaintiff had Ouffieid 
 duly given notice of a motion for a decree, and was V) 
 
 (a) 21 L. J. (s. s.) 400. 
 
 (6) 1 Sim. 505. 
 
 (c) 9 Hare, Appendii, p. Ixxxvii. ; S. C. 22 L. J. (n. s.) 288. 
 
206 THE NEW CHANCEEY PRACTICE. 
 
 desirous of filing i-eplicatiofl before the motion 
 was hea/td, in prdei" to jmt in issue certain facts 
 in the cause. The record and writ clel-k, however, 
 had refused to receive the replica.tioH, upon the 
 gl-ound that filing a replicati<)ti was inconsistent 
 with a motion for a decree, and this view was 
 confirmed by the Court. 
 What Where a plaintiff has entered an appearain6e 
 
 notice of 
 
 filing re- for au abscouding defendant, from whom no 
 where an answcr is required, and who has not answered 
 
 absconding , ,,^ . ,. , 
 
 defendant, the bill, notice of fihng replicatibri under the 26th 
 section of the New Procedure Act 15 & 16 Vict. 
 c. 86, and the 28th of the General Orders of 
 August 1852, is to be given in the Gazette, arid 
 in two newspapers of the county in which the 
 defendant last resided. This was the rule la:id 
 
 sarton v. dowH bv the fuU Appeal Court in Barton v. Whit- 
 comb, (a) Under the old practice, as settled by 
 the 77th and 79th Generd Orders of May 1845, 
 the course was to bring the defendant into con- 
 tenipt, and to take the bill pro confesso. 
 
 By the present practice the defendant is to be 
 considered to have traversed the biU, and a repli- 
 cation must then be filed, and notice given in the 
 mode above prescribed. 
 
 Old mode By the 28th section of the New Procedure Act 
 
 of examin- . 
 
 ingvfit- 15 & 16 Vict. c. 86, the old mode of examining 
 
 nesses on 
 
 interroga- witnesscs is abolished, but the Court may still, if 
 
 (o) 17 Jut. 81. 
 
EVIDENCE. 207 
 
 it shall think fit, order any particular witness tones abo- 
 or witnesses, whether within or out of the juris- 
 diction, to be examined upon interrogatories 
 according to the former practice. 
 
 By the 29th section of the New Procedure Act PUintiffto 
 
 . give notice 
 
 15 & 16 Vict. c. 86, when any suit commenced how lie 
 
 , , , wishes evi- 
 
 by bill shall be set at issue, the plaintiff is to give dence 
 notice to the defendant how he desires that the 
 evidence to be adduced in the cause shall b& 
 taken, whether orally or upon affidavit, as the 
 case may be, and if the plaintiff shall desire the 
 evidence to be adduced upon affidavit, and no 
 objection is made by any of the defendants, the 
 plaintiff and defendant respectively are to be at 
 liberty to verify their respective cases by affidavit. 
 
 By the 31st of the General Orders of the 7th Seven days- 
 of August 1 8 5 2, the time within which the plaintiff, phlntiff^ 
 in any suit commenced by bill, is to give the '^'''"™ ■ 
 defendant notice of the mode in which he desires 
 that the evidence to be adduced in the cause shall 
 be taken, is to be seven days after issue joined 
 therein, and if the plaintiff shall not within such 
 time give any such notice, or if the plaintiff shall 
 give such notice, and shall therein desire the 
 evidence to be adduced upon affidavit, the plaintiff 
 and defendant respectively are to be at liberty to 
 verify their respective cases by affidavit, unless 
 the defendant, or some or one of the defendants, 
 if more than one, shall within fourteen days after 
 the expiration of the said period of seven days, 
 
208 THE NEW CHANCERY PRACTICE. 
 
 give notice to the plaintiff or his solicitor that he 
 or they desire the evidence to be oral. 
 Evidence By the 30th section of the New Procedure Act 
 
 to be oral ■' , - 
 
 if any party 15 & 16 Vict, c. 86, when any of the parUes to 
 
 desires it 
 
 any suit commenced by bill desires that the 
 evidence should be adduced orally, and gives 
 notice thereof to the opposite party, the same 
 is to be taken orally; provided the evidence is 
 required to be oral, by a party having a suffi- 
 cient interest in the matters in question. 
 Evidence By the 8Ist scctiou of the New Procedure Act 
 
 to be taken - ^ • , 
 
 in presence 15 & 16 Vict. c. 86, all wituesscs to be examined 
 ties, conn- oraUy Under the provisions of the act are to be 
 solicitors. SO examined by or before one of the examiners 
 of the Court, or by or before an examiner to be 
 specially appointed by the Court, in the presence 
 of the parties, their counsel, solicitors, or agents, 
 and the witnesses so examined orally are to be 
 subject to cross-examination and re-examination, 
 and snch examination, cross-examination, and re- 
 examination is to be conducted, as nearly as may 
 be, in the mode hitherto in use in the Courts of 
 common law, with respect to a witness about to 
 go abroad, and. not expected to be present at the 
 trial of a cause. 
 Court will The Court will not appoint two examiners 
 two exa. jointly for the examination of witnesses, as that 
 would lead to increased expense, and be as oppres- 
 sive as the former practice of the Court with 
 regard to commissioners. If the parties cannot 
 
 miners. 
 

 EVIDENCE. - 209 
 
 agree in the choice of an examiner, proposals for 
 the appointment of an examiner must be laid 
 before the Judge at chambers. Cook v. Hall, (a) 
 
 In a case in nvhich the defendants were unable when spe- 
 
 1 • • • 1 1 ■ cial exa- 
 
 to obtain an appomtment with the examiner oi miner ap- 
 the Court until a distant day, being after the day 
 fixed for closing the evidence, and where an 
 injunction had been ♦granted restraining the de- 
 fendant's proceedings at law, the Court on motion 
 directed the examination of witnesses in London 
 to be taken before a barrister specially appointed 
 to act as examiner in the cause. Brennan v. Brenvanv. 
 Preston, (b) In this case there had been a pre- 
 vious interlocutory application for liberty to use 
 affidavits to be made by witnesses residing else- 
 where than in London, upon which occasion the 
 plaintiflFs had come under an undertaking to abide 
 by any order which the Court might make for 
 the early hearing of the cause. 
 
 But it is presumed that even in the absence of 
 such an undertaking, the Court would not hesi- 
 tate to make the like order for appointing a special 
 examiner, if the circumstances were such as to 
 make it proper that the cause should be expe- 
 dited, though in general such applications would . 
 probably be discouraged. 
 
 The provisions of the New Procedure Act 15 Examina- 
 & 16 Vict. c. 86, apply to the examination of esse n'ma 
 
 the act. 
 
 (a) 9 Hare, Appendix, p. xxii. 
 (by 10 Hare, Appendix, p. xvii. 
 
210 THE NEW CHANCERY PRACTICE. 
 
 ■witnesses. dfe bene esse, and their evidence is to be 
 taken according to the 30th, 31st, and 32nd 
 sections of that statute^ This was at first doubted, 
 because the directions in the Act with regard to 
 the examination of witnesses appeared, it was 
 thought, to Go^itemplate an open examination in 
 the presence of the parties, their counsel, soli- 
 citors, or agents, (section 31) whereas the ex- 
 amination de bene esse under the old practice was 
 always secret, and it was only published if the 
 witnesses happened to be incapable of being 
 examined at the proper time, when the cause was 
 at issue; and the words of the 35th section of the 
 act are only, that it shall not be necessary to sue 
 out any commission to examine witnesses, leaving 
 it perhaps open to infer that it might still be 
 Cook V. done in certain cases, but in Cook v. Hall, (a) the 
 Vice Chancellor Turner having consulted with 
 the other Judges of the Court, said that the Court 
 was of opinion that the case of the examination 
 of witnesses de bene esse was within the act. The 
 general clause on this subject, section 28, enacted 
 that " the mode of examining witnesses in 
 causes in this Court, and the practice in relation 
 thereto, so far as such practice shall be incon- 
 sistent with the mode thereinafter prescribed of 
 examining witnesses, shall from and after the 
 time appointed for the commencement of the act 
 be abolished." The clause afterwards proceeded 
 
 (o) 9 Hare, Appendix, p. xx. 
 
 Hall 
 
EVIDENCE. 211 
 
 to give the Court a discretion to examine any 
 particular witnesses, either one way or the other, 
 upon interrogatories, under a commission, or jyivd 
 voce, but the latter mode of examination was the 
 general method prescribed by the Legslature, and 
 which it was the duty of the Court to adopt, 
 unless there were special reasons to the contrary. 
 The circumstance th*at the depositions taken de 
 bene esse were not published, and would continue 
 not to be published, was not a sufficient reason 
 for departing from the general form of examina- 
 tion now to be used. The evidence would be 
 known to the parties, but it would not be pub- 
 lished or used." 
 
 Where the witness is too ill to attend at the Course 
 examiner's office for the purpose of being nesstoo 
 examined de bene esse, the Court will either tend. 
 appoint a private examiner, or direct the exa- 
 miner of the Court on any day which may be 
 fixed for his convenience, to attend at the house 
 of the witness for the purpose. This order was piii„„ y. 
 made in PiUan v. Thompson, (a) ompsm. 
 
 By the 38th section of the New Procedure whenevi. 
 Act 15 & 16 Vict. c. 86, the evidence on both cio"ed.'° ' 
 sides in any suit, whether taken orally or upon 
 affidavit, is to be closed within such time after 
 issue joined as is prescribed by the General 
 Order of August, but with power to the Court 
 
 (a) 17 Jur. 781. 
 p 2 
 
212 THE NEW CHANCERY PRACTICE. 
 
 to enlarge the same as it may see fit, and after 
 the time fixed for closing the evidence no further 
 evidence, whether oral or by affidavit, is to be 
 receivable without special leave of the Court 
 previously obtained for that purpose. 
 Within By the 32nd of the General Orders of the 7th 
 
 nine weeks 
 
 after issue day of August 1852, the evidence on both sides 
 
 joined. , . 
 
 m any cause to be used at the hearing thereof, 
 whether taken orally (and including the cross- 
 examination and re-examination of any witness 
 or witnesses) or taken upon affidavit, is to be 
 closed within nine weeks after issue joined 
 therein, except that any witness who has made 
 an affidavit intended to be used by any party to 
 snch cause at the hearing thereof, shall be sub- 
 ject to cross-examination within one month after 
 the expiration of such period of nine weeks. 
 No com. xhe 35th section of the New Procedure Act 
 
 mission 
 
 necessary 15 & ]6 Yict. c. 86, providcs, that it shall not be 
 
 for exami- ^ 
 
 nation of neccssary to sue out any commission for the 
 
 witnesses _ ■'_ _ • "^ 
 
 within the examination of any witnesses within the juris- 
 
 jurisdiction. . r t r\ ^ ■ • i 
 
 diction of the Court, and any examiner appointed 
 by any order of the Court is to have the like 
 power of administering oaths as commissioners 
 had according to the old practice under commis- 
 sions issued by the Court for the examination of 
 witnesses. This section applying in terms to 
 the examination of witnesses within the jurisdic- 
 tion of the Court only, it was contended in a 
 case before Vice Chancellor Turner, that commis- 
 
EVIDENCE. 213 
 
 sions for the examination of witnesses abroad 
 were left to be governed by the former practice, 
 but the Vice Chancellor said, that all the Judges 
 of the Court who had been consulted on this 
 point, were of opinion that the Court had power 
 to appoint an examiner for the examination of 
 witnesses viva voce out of -the jurisdiction of the 
 Court and he would in this case appoint an 
 examiner in Australia. The parties might agree 
 on the person to be named, or, if not, the Court 
 would make the appointment. Crofts v. Mid- ^^^/^J^,,. 
 dleton. (a) 
 
 By the 34th section of the New Procedure Act Original 
 15 & 16 Vict. c. 86, Avhen the exammation of to be trans- 
 witnesses before any examiner is concluded, the record 
 original depositions, authenticated by the signa- 
 ture of such examiner, are to be transmitted by 
 him to the record office, to be there filed, and any 
 party to the suit may have a copy thereof or of 
 any portion thereof upon payment for the same 
 in the manner provided by the General Order 
 of the 25th of October 1852. See schedule to 
 that Order of Court, title " Record and Writ 
 Clerks' Office." 
 
 Depositions are not vitiated by a difference clerical 
 between the title of the depositions and the title deposUii 
 of the cause, where the suit in which the 
 depositions were taken is clearly identified. 
 Harford v. Rees. (b) 
 
 (a) 9 Hare, Appendix, p. xviii. 
 (h) Ibid. p. Ixiiii. 
 
 error in 
 
 ions. 
 
214 THE NEW CHANCERY PRACTICE. 
 
 Court may Bv the 39th section of the New Procedure Act 
 
 require the . t i i L 
 
 production 15 & 16 Vict. c. 86, it IS provided, that upon the 
 
 examina- hearing of any cause depending in the said Court, 
 
 itself of whether commenced by bill or by claim, the 
 
 nessr&c., Court, if it shall see fit so to do, ma,y require 
 
 mine pa" the productiou and oral examination before itself 
 
 ^st3.° ' ° of any witness or party in the cause, and may 
 
 direct the costs of and attending the production 
 
 and examination of such witness or party, to be 
 
 pa:id by such of the parties to the suit or in such 
 
 manner as it may think tit. 
 
 The 39th section of the New Procedure Act 
 15 & 16 Vict. c. 86, was only meant to apply 
 where a person had already been examined in 
 the cause. The Court, where it is not satisfied 
 with the result of his ^examination, may require 
 his presence and examine him further. See 
 Wigan v. Rowland, (a) 
 
 It was held in May v. Biggenden, (b) that a 
 sv^pcena ad testificandum issues ex debito justitice 
 without the order of the Court, and that it is not 
 necessary to obtain such an order beforehand, 
 where there is a probability that the vivd voce 
 evidence of a party may be required at the 
 hearing, in the case contemplated by the 39th 
 section of the New Procedure Act 15 & 16 Vict, 
 c. 86. It would seem that if the Court wishes 
 to have the vivd voce evidence of a party under 
 that section, the course would be, if he were not 
 
 (a) 17 Jur. 816. 
 (*) Ibid. 252. 
 
EVIDENCE. 215 
 
 present, to adjourn the hearing. The Vice Chan- 
 cellor Stuart in giving judgment in the above 
 case of May v. Biggmden, upon an application 
 for an order that a subpoena should issue, made 
 these observations. His Honor said, that an ap- 
 plication to the Court for an order authorizing the 
 issue of the subpoena ad testificandum^ was stated 
 to be necessary iih consequence of the recent 
 changes in the practice of the Court. It was 
 said to be rendered necessary, first, because ac- 
 cording to the course of the Court, the proper 
 officer would not issue a subpoena, to answer the 
 purpose for which it was required in the present 
 instance, without the order of the Court, and in 
 the next place, because on the facts stated in the 
 affidavit in support, which were very peculiar, 
 the Court would, under the discretion given by 
 the 39th section of the statute require, a vivci 
 voce examination of the defendant at the hearing 
 of the cause. The question then was, whether for 
 the purposes of justice, under the authority of 
 this act of Parliament, the Court would be 
 authorized to make the order asked for. If the 
 order were asked under the 39th section, his 
 Honor thought that the provisions of that section 
 pointed, to nothing in the nature of a subpoena, 
 but empowered the Court at the hearing of the 
 cause, if it should see necessary, to order any 
 parties to be examined viva voce, and therefore if 
 such an order to issue a subpoena could not have 
 
216 THE NEW CHANCERY PRACTICE. 
 
 been obtained under the old practice, his Honor 
 thought he had no authority under the 39th 
 section to make an order directing the clerk of 
 records and writs to issue a subpoena of this 
 kind. Then it was argued that if at the hearuig 
 of the cause the Court under the discretionary 
 power conferred upon it by the 39th section, 
 should considerit necessary to have an examination 
 of the defendant viva voce, it should be a very 
 inconvenient course to have the hearing inter- 
 rupted, to order the attendance of the party 
 whose examination might be necessary, and it 
 would be just that the party whose examination 
 was necessary, should have notice beforehand that 
 his examination would be required, and that 
 could be done by serving him with a writ of 
 subpoena that he might attend. His Honor was 
 of opinion that under the 39th section, accord- 
 ing to the true construction of that section, if 
 at the hearing of the cause, it should seem 
 necessary to have recourse to the provisions of 
 that section, the Court could only do so by 
 ordering upon the hearing, the defendant to 
 appear and be examined. Upon the question of 
 convenience, there could be no doubt that the 
 purposes of justice, and of all parties, would be 
 better served by an authoritative notice,before the 
 occasion arose, in order that the defendant might 
 be ready to attend. According to the old prac- 
 tice of the Court, it was the legitimate mode of 
 
EVIDENCE. 217 
 
 proceeding for the plaintiff to have recourse to 
 the evidence of a defendant, as a witness in the 
 cause, and it was a motion of course for the 
 plaintiff to obtain an order to examine the 
 defendant before the examiner. No inconve- 
 nience was occasioned by that course, and the 
 evidence of the defendant was obtained in a 
 regular and proper mo3e, his Honor thought that 
 there would be a great convenience in making 
 an order of the same kind either by issuing a 
 subpcBua, or in some other way to enable the 
 party to know that he was to be examined, and 
 to assure the plaintiff that there would be no 
 delay at the hearing, owing to the absence of the 
 party sought to be examined. But the construc- 
 tion of the statute must not be unduly extended 
 beyond what was expressed. His Honor thought, 
 that if the plaintiff were to give notice to the 
 defendant in a great degree the whole purpose 
 and convenience to be answered by a special 
 order would be obtained. The present applica- 
 tion was novel, and in his Honor's opinion not 
 authorized by the true construction of the 39th 
 section. It was said that the Vice Chancellor 
 Kindersley, in the case of Smith v. The Swansea 
 Dock- Company, (a) had expressed an opinion 
 which countenanced this motion. The reports 
 of that case, however, with which his Honor had 
 been furnished, differed, and his Honor had been 
 
 {a) See supra, p. 176, and 16 Jur. 1123. 
 
218 THE NEW CHANCERY PKACTICl!. 
 
 assured by counsel in the cause, that it was not 
 to be inferred from what passed, that the Vice 
 Chancellor Kindersley thought it the proper 
 course to move for leave to i^ue a subpcena in 
 such a case as the present. Under the 40th 
 section it was clear that a subpcena must issue, 
 in the case for which it provided, and if the Yice 
 Chancellor Kindersley had said that a subpoena 
 ought to issue on an application to be made for 
 that purpose, and by that application was to be 
 understood a motion, that would be a novel prac- 
 tice not authorized by the course of the Court. 
 But in fact it was not the view taken by the 
 learned Vice Chancellor, that a motion was to be 
 made for leave that a subpoena should issue, and 
 his Honor could see nothing in what passed on 
 that occasion^ to make it appear that the Vice 
 Chancellor Kindersley would differ from the 
 opinion which his Honor entertained adverse to 
 the present motion. The motion must therefore 
 be refased, and as it seemed to his Honor to ask 
 for what was palpably unauthorized, it must be 
 refused with costs. 
 
 Although the Court is now empowered under 
 the 39th section (a) of the New Procedure Act 15 
 & 16 Vict. c. 86, if it shall see fit, to require the 
 production and oral examination at the hearing 
 of any witness or party in the cause, yet the 
 Court will not exercise this jurisdiction in ordi- 
 
 (a) See this section, supra, p. 214. 
 
EVIDENCE. 219 
 
 nary cases. The test for deteraiining whether an 
 oral examination of witnesses ought to be directed 
 at the hearing of the cause, is to consider whether, 
 if the cause had been heard upon evidence under 
 the old practice, the Court would have seen suffi- 
 cient ground to direct an issue, or give liberty to 
 bring an action, on the fact or matter in dispute. 
 Wilkinson v. Stringer, (a) Deaville v. Dea- 
 ville. (b) 
 
 In the case of Oliver v. Wright (c), a similar 
 question arose, and the Vice Chancellor Stuart in 
 giving judgment made these observations. His 
 Honor said, I have only one way of dealing with 
 this case. The plaintiff seeks to be relieved from a 
 contract for the purchase of certain shares, on 
 the ground of fraud. Now nothing is more com- 
 pletely settled, and on more just grounds, than 
 that in a Court of Equity, whoever seeks relief on 
 the ground of fraud, must distinctly prove the 
 fraud beyond all doubt, in order to entitle him- 
 self to relief. Now here, the only evidence in 
 support of the case of fraud that is made, is the 
 evidence of the plaintiff himself, but on the part 
 of the defence, there is the evidence of three 
 individuals distinctly upon their oaths averring 
 facts, which the plaintiff himself does not venture 
 to deny, decisive of the question. In this state 
 
 (o) 9 Hare, Appendix, p. xxiii. 
 (6) Ibid. p. xxii. 
 (c) 21 L. T. 164. 
 
220 THE NEW CHANCERY PRACTICE. 
 
 of things, I am bound sitting here to dispose of 
 the case on the evidence which the parties have 
 laid before me. I am pressed with this, that the 
 new rules on the subject of evidence, authorize a 
 vivd voce examination of the parties at the hear- 
 ing, and that it is the right of the plaintiff in this 
 ease, he being at a neighbouring hotel, and being 
 willing to be examined, that I should hear his 
 statement vivd voce on oath. I think the power 
 which is given to the Court to examine witnesses 
 or parties to the cause, is a very salutary rule. 
 It may tend to clear up doubts, to relieve the 
 conscience of the Court where there is a conflict 
 of evidence, and there may be cases in which it 
 would be difficult, without resorting to the test of 
 vivd voce evidence, for the Court to its own satis- 
 faction to dispose of the question. But I consider 
 it is a matter generally for the discretion of the 
 Court, whether that vivd voce examination is to 
 take place or not. I do not consider it to be the 
 right, of any of the parties to the cause, in the 
 sense of a right to be urged before the Court. 
 But if vivd voce evidence be desirable in any case, 
 the case in which it seems to be least of all 
 desirable, is where the party sought to be ex- 
 amined vivd voce is one of the ligitants himself, 
 and where he already has had a full opportunity 
 of stating all that he had to state upon oath on 
 the subject. Notwithstanding the alteration in 
 the law which provides for the examination of 
 
EVIDENCE. 221 
 
 the parties, it is impossible not to feel that there 
 was at least some degree of wisdom in the old 
 rale, which prevented any individual litigant 
 stating upon oath any matter in support of his 
 own case. 
 
 The principle of the rule was, that the tempta- 
 tion to give evidence in the eagerness of litigation, 
 and to state matters relative to the dispute before 
 the Court would be so great, that the parties 
 might be apt to slide into perjury. I do not feel 
 that in this case there is any doubt, as to how to 
 deal with it, that requires to be resolved upon the 
 vivd voce examination of either party, and for the 
 reasons which I have stated, I should be very 
 unwilling, unless I considered it absolutely neces- 
 sary, to bring this plaintiff before me, and to 
 place him under the temptation which must be 
 occasioned in most men's minds, in the eagerness 
 of litigation, to state almost anything with regard 
 to matters in contest between them and the oppo- 
 site party. The plaintiff having failed to prove 
 his case, the bill must be dismissed with costs. 
 
 The Court will order the registrar of the 
 Ecclesiastical Court in which a will has been 
 proved, to attend with the will in Court at the 
 hearing. 
 
 In Wigan v. Rowland, (a) upon a motion that 
 the clerk of records and writs might be ordered 
 
 (fl) 17 Jur. 816. 
 
222 THE NEW CHANCERY PRACTICE. 
 
 to issue subpoena duces tecum to the registrar of 
 the Consistory Court of St. Asaph, to produce at 
 the hearing the will of the testator in the cause, 
 the clerk of records and writs having refiised to 
 issue this writ, unless on the special order of 
 the Court; the Vice Chancellor Wood said, the 
 course under the old practice was to order the 
 will to be delivered to the re^strar of this Court, 
 in order to be produced as the Court should 
 direct. Upon consulting with the registrar, who 
 famished a useful note of several cases bearing 
 on the point of practice, his Honor made the 
 order for the registrar of the Ecclesiastical Court 
 to attend. See cases in the, note to Wigan v. 
 Rowland, supra. 
 Plaintiff The plaintiff may, since the stat. 14 & 15 Vict, 
 ^ee ^' c- 9^7 examine as a witness a defendant in a suit 
 '^^^t ™ equity without prejudicing his right to a 
 ^^^*-^ decree in the same suit against such defendant. 
 The point was very fully considered by the then 
 Vice Chancellor Turner, in Harford v. Rees (a), 
 who said, after a review of the authorities, he 
 could not hold that the examination of a defend- 
 ant by the plaintiff was an objection to a decree 
 being made against the parties examined, without 
 nullifying, so far as regards suits in equity, one 
 of the chief clauses of the late statute, that which 
 relates to the examination of parties. 
 
 (ffl) 9 Hare, Appendix, p. ki. 
 
 asa wrt- 
 
EVIDENCE. 223 
 
 By the 36th section of the New Procedure Act when affi- 
 15 & 16 Vict. c. 86, notwithstanding that the missiWe 
 plaintiff or the defendant in any suit may have dencetaken 
 i^cted that the evidence in the cause should be °'* ^" 
 taken orally, affidavits by particular witnesses, or 
 affidavits as to particular facts or circumstances, 
 may, by. consent or by leave of the Court obtained 
 upon notice, be used on the hearing of any cause ; 
 and such consent with the approbation of the 
 Court may be given by or on the part of; a 
 married woman or infants or other persons under 
 disability. Although the Court will in ereneral, when affi- 
 
 . . T ? , . . . davits not 
 
 it IS presumed under this section, give leave to admissible. 
 use at the hearing affidavits by particular wit- 
 nesses or as to particular facts, where the circums- 
 stances are such as to require it; yet the Court 
 will not give leave to one party under this 
 section where it would be unfair on the other 
 side. As where there were two witnesses who 
 could speak to conversations yrhich had taken 
 place in their pi'esence, and with regard to which 
 
 their statement differed, and the parties had agreed 
 
 to take the evidence orally, and' the plaintiff's 
 witness had since gone to Australia; the Court 
 would not allow the plaintiff to use the affidavit 
 of this witness, who could not be cross-examined 
 when the defendant's witness would be examined 
 and cross-examined orally; and an examiner was 
 appointed in Australia. Crofts v. Middleton. (a) 
 (o) 9 Hare, -Appendix, p. xviii. 
 
224 THE NEW CHANCERY PEACTICE. 
 
 By the 38th of the General Orders of- the 7th 
 of August 1852, it is directed that all the previous 
 Orders with reference to the examinatioDj cross- 
 examination, and re-examination of witnesses 
 shall extend and be applicable to evidence taken 
 . in any cause subsequently to the hearing thereof. 
 How evi- And, lastly, with respect to suits in which issue 
 
 dence 
 
 taken in shall have been joined when those Orders come 
 into operation. The 39th of the same Orders 
 directs, that the evidence to be used at the hearing 
 of the cause should be taken according to the 
 then existing practice of the Court, unless the 
 parties shall consent, or the Court shall order, 
 that the same shall be taken in the mode pre- 
 scribed by the New Procedure Act, and by those 
 Orders. 
 
 Under the 29th section of the New Procedure 
 Act 15 & 16 Vict. c. 86, and the 39th General 
 Order of the 7th of August 1852, the Court has 
 now a discretion, with respect to causes at issue 
 before the Orders came into operation, to direct 
 whether the evidences shall be taken according to 
 the old or according to the new practice. The 
 mode in which this discretion will be exercised 
 was very fully considered by the Vice Chancellor 
 Stuart, in the case of M''Intosh v. The Great 
 Western Railway Company^ (a) which has been 
 before referred to on the subject of production of 
 
 (a) 16 Jur. 1012. 
 
EVIDENCE. 225 
 
 itecuments. The material facts of the case suffi- 
 ciently appear from his Honor's judgment upon 
 the motion made by the Company, "that the 
 t^idence to be used at the hearing of the cause 
 might be taken in the mode prescribed by the act 
 of 15 & 16 Yict. c. 86, and the General Orders 
 of the .7th of August 1852, made in pursuance 
 thereof." His Honor, in giving judgment, made 
 these observations : " The provisions of the act 
 of Parliament of the last session, which has been 
 referred to in the argument, and the provisions of 
 the General Orders of the Court for effectuating 
 the purposes of that act, and made under its 
 authority, have imposed upon the Court in this 
 case, and are likely to impose upon the Court in 
 cases of a similar nature, a task of very great 
 difficulty and importance, with a view to the 
 interests of parties engaged in litigation before 
 the Court. Here the defendants ask, that the 
 evidence upon the matters in issue between 
 themselves and the plaintiff in this case, may 
 be taken according to a system and practice- 
 hitherto new and untried. The plaintiff, oil the 
 other hand, resists that application, and asks the 
 Court to: allow the evidence in this cause to pro- 
 ceed under the old system, be having filed his bill 
 at a time when he had reason to expect that he 
 would have the means of proving his case under 
 the old system and no other. I am, therefore, to 
 decide upon the construction of the act of Par- 
 
 Q 
 
226 THE NEW CHANCERY PRACTICE. 
 
 liament and these Orders, and upon the facts 
 brought before the Court to guide its discretion 
 in this case, whether it is proper that this appli- 
 cation should be granted. Now, in the first 
 place, the plaintiff resists the application upon 
 this ground,' that nothing has been shown in 
 support of this application sufficient to induce 
 the Court, to grant it, and that if the Court 
 granted the application in this case to have the 
 evidence taken under the new system, it must be 
 a motion of course in every other case pending 
 before the Court, which was at issue before 
 the Orders came into operation. I think that 
 by no means follows. There are matters brought 
 here before the Court to guide its discretion, 
 which would not ordinarily occur in other 
 cases, and which may materially affect the 
 exercise of its discretion. It is perfectly plain 
 that the intention . of the act of Parliament was, 
 that the mode of taking evidence in causes should 
 he altered, because the old mode was considered 
 to be defective. It is also evident, that it was in 
 the contemplation of the Judges of this Court,^ 
 who had authority to make Orders suspending 
 the operation of these enactments, that a case 
 might occur in which it might be highly incon- 
 venient, and not at all conducive to the principles 
 of justice, to extend the new system to causes 
 actually at issue, and in which the evidence might 
 be taken, either altogether, or to a great extent, 
 
EVIDENCE. 227 
 
 according to the old system. Cases might occur, 
 it was conceived, in which evidence taken ac- 
 cording to the former pT&ctice in causes already 
 at issue, might be allowed to be used with 
 reference to the matters in issue, in such a way 
 as to have those matters disposed of in a perfectly 
 satisfactory manner; and it was conceived, I 
 presume, from the terms of the General Orders, 
 that the majority of cases were likely to be cases 
 in which, to a great extent, the evidence had been 
 completed under the old system. The present 
 case is not a case of that kind at all." His Honor 
 then proceeded to comment on the 'facts of the 
 case, and after observing that this was not one of 
 those cases which might have been contemplated 
 by the Legislature, in which the evidence had 
 been taken to a considerable extent, the interro- 
 gatories in this case, though prepared, not having 
 been filed, proceeded in these words : " Now 
 when I look to the matters in issue in the cause, 
 they seem to me, if the new system is worth 
 anything, to be such matters as are peculiarly 
 within the view of the Legislature in altering the 
 mode in which evidence shall be taken. No 
 doubt the old system of taking evidence in this 
 Court was a defective mode; its defect was 
 always felt, but it is to be considered that even 
 as to the new mode, he must be a very bold man 
 who wUl say that there are not defects in the 
 mode of taking evidence by examning witnesses 
 
 Q 2 
 
■■^28 TPIE NEW CHANCERY PRACTICE. 
 
 vivd voce, and by affidavit in the form contem- 
 plated. There may be proved to be defects of a 
 very formidable kind, but if I find that the 
 Legislature in its wisdom, looking at the defects 
 on both sides, was of opinion that the new mode 
 was likely to be more eflFectual than the old, and 
 has made it imperative, as the Orders have made 
 it imperative, when the cause was not at issue 
 before the New Orders came into operation, that 
 the new mode should be pursued ; I think that in 
 the peculiar circumstances of this case it is a fit 
 and proper, and a discreet thing on the part of 
 the Court, to allow the evidence to proceed in the 
 mode which the Legislature has declared to be 
 the best. I am influenced in coming to that 
 conclusion very much by. the fact that in point of 
 delay and expense, so far as one can speculate 
 upon such matters, the delay and expense are 
 likely to be much less, in bringing the litigation 
 to its ultimate result, by proceeding by the 
 examination of witnesses under the new than 
 under the old, if the new system be worth any- 
 thing at all; and I am not at liberty to say, 
 sitting in this Court, that the new system is not 
 the better system of the two, since it is that which 
 has received the sanction of the Legislature- in 
 consequence of the defects in the old. Upon the 
 whole, therefore, I think that in the exercise of 
 my discretion, as well as I can exercise it, this is 
 a case in which the application of the defendants 
 
EVIDENCE. 229 
 
 ought to be granted, and in disposing of this case 
 I have felt it to be my duty, as I shall in all 
 these cases, to struggle as much as possible with 
 any difficulties or uncertainties that may arise 
 from the language of the act of Parliament, and 
 from the language of the Orders of this Court, 
 with a view to effectuate what was the great 
 object of the act of "* Parliament and of these 
 Orders, to enable parties to meet on equal terms 
 in this Court, and have the questions disposed of 
 with as little delay and with as little expense as 
 possible." 
 
 In Cable v. Cooper (a), the Vice Chancellor cabiey. 
 Stuart made a similar order under the like cir- 
 cumstances, at the instance of the plaintiff, though 
 the motion was opposed by the defendant, unless 
 the plaintiff would agree to pay the costs which 
 had been incurred in preparing the interroga- 
 tories. 
 
 His Honor directed the costs generally to be 
 costs in the cause. 
 
 The rule of the Court now is to apply the new 
 mode of examining witnesses to suits at issue 
 before the Orders of the 7th of August 1852 
 came into operation, whether at the instance of 
 the plaintiff or the defendant, if there is reason 
 for supposing that it will be more expedient to 
 adopt the new than the old practice, and if it is 
 
 (a) 16 Jut. 969. 
 
230 THE NEW CHANCERY PRACTICE. 
 
 likely that the purposes of justice will be best 
 served by oral examination and cross-examina- 
 tion, without that being demonstrably shown. 
 In Howard v. Howard {a), the Vice Chancellor 
 Kindersley said, that as there was at least a 
 probability that the new system of examining 
 witnesses might be the most effective, and the 
 Legislature had said that the new mode was the 
 best, in the absence of any special reasons for not 
 adopting it, he should follow the case of Mcintosh 
 V. The Great Western Railway (ft), and his Honor 
 made the order for examining the witnesses mvA~ 
 voce under the 39th Order of the 7th August 
 1852. 
 Oral exa- The Court wiU not, however, in sreneral, direct 
 
 mmation ' 7 o j 
 
 notdirected the Oral examination of a party to the cause where 
 
 after decree ^ •' 
 
 made in old the usual decree directing an examination upon 
 
 lorin under i i i i t 
 
 former hiterrogatories has been made before the New 
 
 practice. -n 1 k • • t m 
 
 Procedure Act came mto operation. In oher- 
 
 wood V. Vincent (c), the decree contained the 
 
 usual directions for the common accounts and 
 
 inquiries, and for the parties to be examined upon 
 
 interrogatories as the Master should direct. The 
 
 Master not being satisfied with the affidavit left 
 
 by one of the parties, directed that he should 
 
 be examined viva voce. 
 
 The examiner declined to proceed until the 
 
 opinion of the Court had been taken, and upon a 
 
 (a) 1 Drewiy, 243. 
 
 (i) 16 Jut. 1012. 
 
 (c) 9 Hare, Appendix, p. xix. 
 
EVIDENCE. 
 
 231 
 
 motion for the direction of the Court that the 
 examiner should proceed with the oral examina- 
 tion of the party, the Vice Chancellor Turner 
 (after consulting the other Judges) refused the 
 application. 
 
 A vivd voce examination wiU in general be had vivd yoce 
 
 . cxamina- 
 
 before the examiner of the Court ; in some cases tion before 
 
 ,.„,', I, ^ -n examiner 
 
 before the chief clerk at chambers; rarely, it or chief 
 ever, before the Master, even in old suits. 
 
 In Hextall v. Cheatle (a), a decree had been sextaiiv. 
 made under the old practice, directing by con- 
 sent that an affidavit should be made by the 
 plaintiff as to the quantity and value of the stock 
 on a farm, and that he should be subject to 
 cross-examination . Upon the plaintiff carrying in 
 his affidavit, the Master directed that he should 
 be examined upon interrogatories. The New 
 Chancery Acts then passed, and the Master 
 thought that upon the effect of those acts, inter- 
 rogatories could no longer be exhibited before 
 him. The Vice Chancellor Stuart, therefore, 
 upon the motion of the defendant, made an order 
 that he should be at liberty to cross-examine the 
 plaintiff vtvd voce before one of the examiners of 
 the Court, and that the plaintiff should attend 
 for that purpose, and a supplemental order was 
 also made, for the parties to the cause to be 
 examined upon interrogatories, as the Master 
 should direct. 
 
 (a) 17 Jm-. 128. 
 
232 the new chanceby pbactice. 
 
 Section 2. 
 ON APPIDAVIT EVIDENCE. 
 
 Form of affidavits^ affidavits as to particular facts 
 admissible though evidence taken orally, when 
 answer treated as an affidavit, what notice neces- 
 sary where affidavit filed before issue joined, 
 what notice of cross'examining witness or party 
 who has made affidavit, as to evidence subsequent 
 to the hearing, affidavits sworn abroad, erasures 
 in affidavits sworn abroad, when Court takes 
 judicial notice of affidavits sworn abroad, sig- 
 nature of registrar of deeds in the colonies must 
 be proved, place where affidavit is sworn should 
 appear on the jurat, place of residence of deponent 
 should be stated on the affidavit, inquiry before 
 the Chancery Commissioners as to the use of 
 affidavit evidence, as to compelling attendance 
 of witness before examiner, extracts from parish 
 registers now evidence without verification, order 
 in Mcintosh v. The Great Western Railway 
 Company affirmed but modified by arrangement. 
 
 Affidavits The General Orders of the 8th of May 1845 
 form!"*' contain the following rules with respect to the 
 
 frame of affidavits, and the time when the copies 
 
 are to be obtainable. 
 
 CXXVI. All affidavits are to be taken and 
 
 expressed in the first person of the deponent. 
 
AFFIDAVIT EVIDENCK. 233 
 
 CXXVII. All copies of affidavits are to be 
 ready for delivery within forty-eight hours after 
 the same are bespoke. 
 
 CXXVIII. Any solicitor, party, or person 
 filing an affidavit not taken and expressed in the 
 first person of the deponent is not to be allowed 
 the costs of preparing and filing such affidavit in 
 any taxation of costs. 
 
 By the 37th section of the New Procedure Act 
 15 & 16 Vict. c. 86, every affidavit is to be 
 divided into paragraphs, and every paragraph 
 is to be numbered consecutively, and as nearly 
 as may be, confined to a distinct portion of the 
 subject. 
 
 Under the provisions of the 36th section of the Affidavits 
 New Procedure Act 15 & 16 Vict. c. 86, not- tfcutar*' 
 withstanding that the plaintiff or the defendant may be''' 
 in any suit in the said Court may have elected "^^ ' 
 that the evidence in the cause should be taken 
 orally, affidavits by particular witnesses, or affi- 
 davits as to particular facts or circumstances, 
 may, by consent, or by leave of the Court 
 obtained upon notice, be used on the hearing of I 
 any cause, and such consent, with the approba- 
 tion of the Court, may be given by or on the part 
 of married women or infants, or other persons 
 under disability. > 
 
 The 37th section of the New Procedure Act Affidavits 
 directs that every affidavit to be used in the said vided ibto 
 Court shall be divided into paragraphs, and every Sumfered.^ 
 paragraph shall be numbered consecutively, and, 
 
234 THE NEW CHANCEKY PBACTICE. 
 
 as nearly as may be, shall be confined to a 
 distinct portion of the subject. 
 Answer of The 59th scctlon of the New Procedure Act 
 on motion 15 & 16 Vict. c. 86, providcs that upon applica- 
 tion 0"°° tion by motioa or petition to the Court in any 
 &c.!'to'be suit depending therein for an injunction or a 
 as^mliffi. receiver, or to dissolve an injunction, or discharge 
 ^''"*' an order appointing a receiver, the answer of the 
 defendant shall, for the purpose of evidence on 
 such motion or petition, be regarded merely as 
 an affidavit of the defendant, and affidavits may 
 be received and read in opposition thereto. See 
 Rock V. Matthews, (a) 
 
 Formerly if affidavits were filed after the filing 
 
 of the answer they could not in general be read 
 
 at all ; particularly if they went to contra^ct the 
 
 answer. See the cases collected by Mr. De Gex 
 
 in Rock v. Matthews^ above referred to. They 
 
 could only be read for some purposes even where 
 
 they were filed before the answer. 
 
 When Under the 59th section in the particular cases 
 
 treated as mentioned, viz., that of amotion for an iiynnc- 
 
 afBdavit. ^.j^^ ^^ ^ reccivcr, or of a motion to dissolve an 
 
 injunction or discharge an order for a receiver, 
 
 the answer is to be treated as an affidavit, and it 
 
 is presumed it wUl make no difference, for the 
 
 purpose of this section, whether the affidavits 
 
 contra are filed before or after the filing of the 
 
 answer. 
 
 What By the 33rd of the General Orders of the 7th 
 
 notice of 
 
 (a) 2 De Gex & «m. 284. 
 
AFriDAVIT EVIDENCE. 235 
 
 of August 1852, no affidavit filed before issue affidavit 
 joined in any cause shall be received or receivable issuejoined. 
 at the hearing thereof unless within one month 
 after issue joined notice in writing shall have 
 been given by the party intending to use the 
 same to the opposite party of his intention in 
 that behalf. 
 
 By the 34th of the General Orders of the 7th what 
 
 notice of 
 
 of August 1852, it is provided that any party cross-exa- 
 
 . . . . 1 1 mining 
 
 desiring to cross-examine a witness who has witness 
 
 who iiAS 
 
 made an affidavit in any case intended to be made am- 
 used at the hearing thereof, shall give forty- 
 eight hours' notice to the party on whose behalf 
 such affidavit was filed, or to the party intendir^ 
 to use the same, of the time and place of such 
 intended cross-examination, in order that such 
 party may, if he shall think fit, be present at 
 such cross-examination. 
 
 By the 35th of the same Orders the re- 
 examination of any such witness is immediately 
 to follow his cross-examination, and is not to be 
 delayed to a future period. 
 
 The 36th of the same Orders directs that any 
 party in any cause or matter requiring the 
 attendance of any witness before an examiner, 
 for the purpose of his being examined or cross- 
 examined, with a view to his evidence being 
 used upon any claim, motion, petition, or other 
 proceeding before the Court, not being the 
 hearing of a cause, shall give to the opposite 
 
236 
 
 THE NEW CHANCERY PRACTICE. 
 
 What no- 
 tice of 
 cross-exa- 
 mining 
 party who 
 has made 
 affidavit. 
 
 As to evi- 
 dence sub- 
 sequent to 
 the bear- 
 ing. 
 
 Affidavits 
 
 sworn 
 
 abroad. 
 
 Erasures 
 in affidavits 
 
 party or parties forty-eight hours' notice at least 
 of his intention to examine such witness, and of 
 the time and place of such examination, unless 
 the Court shall in any case think fit to dispense 
 with such notice. 
 
 And where it is desired to cross-examine any 
 party, whether a party to the cause or matter or 
 not, who has made an affidavit to be used, or 
 which shall be used on any claim, motion, 
 petition, or other proceeding before the Court, 
 not being the hearing of a cause, the 37th of the 
 same Orders directs, that the party desiring so 
 to cross-examine such deponent shall give such 
 notice to the opposite party as is required by 
 Order XXXIV with reference to the cross-exa- 
 mination of a witness who has made an affidavit 
 to be used on the hearing of a cause. 
 
 By the 38th of the same Orders it is directed 
 that all the previous Orders with reference to 
 the examination, cross-examination, and re-exa- 
 mination of witnesses, shall extend and be 
 applicable to evidence taken in any cause 
 subsequently to the hearing thereof. 
 
 When an affidavit is sworn abroad particular 
 care should be taken to avoid all alterations and 
 erasures, or at least to have them properly 
 attested, as the Court will otherwise not allow 
 the affidavits to be filed. 
 
 In Gill v. Gillard (a), the same paper con- 
 (o) 9 Hare, Appendix, p. xvi. 
 
AFFIDAVIT EVIDENCE. 237 
 
 tained the affidavits of two persons, A. and B., sworn 
 sworn before a notary public in the United States g,,^ ^ 
 of America. There were certain erasures and <?'"'"■''■ 
 alterations in the affidavit of A. The Vice Chan- 
 cellor Turner said he was not aware of any 
 authority for allowing an affidavit which had 
 been altered, to be filed, without proof that the 
 alteration Avas made before the affidavit was 
 sworn. His Honor declined to allow that part 
 of the document to be expunged which contained 
 the alterations and erasures, and the rest to be 
 filed ; but he ordered the document to be filed as 
 the affidavit of A., rejecting the affidavit of B. 
 
 Affidavits properly sworn in a colony before when 
 the New Procedure Act came into operation, are judicial 
 within the 22nd section of that act; and it is affidavits 
 unnecessary to prove the signature of the abroTd. 
 commissioner for taking affidavits in order to 
 make them evidence. 
 
 In Bateman v. Cooke (a), where affidavits in n„teman 
 the suit had been sworn at Bathurst in Australia, 
 the full Court of Appeal decided, that whether 
 the affidavits were taken before or after the act 
 came into operation, they were within the 22nd 
 section, and that evidence of the handwriting was 
 unnecessary. 
 
 But a certificate of the registration of a deed signaturo 
 by a registrar of deeds in a colony, who was not of deeds in 
 
 (a) 17 Jur. 170, 
 
238 THE NEW CHANCERY PRACTICE. 
 
 the colonies authorized to administer an oath, is not made 
 
 must be a i I. • 
 
 proved. evidence of the New Procedure Act, but the sig- 
 nature of the registrar must be proved. This was 
 also held by the full Court of Appeal in a case 
 of Baillie v. Jackson (a), the Lord Chancellor 
 observing, that the words in the 22 nd section, 
 daa?ecting that " the Judges and other officers of 
 the Court of Chancery were to take judicial 
 notice of the seal or signature, as the case may 
 be, of any such Judge, Court, notary public, 
 ■person" &c., must be construed with reference to 
 the previous part of the section to mean " person 
 lawfully authorized to administer oaths in such 
 country" which it was admitted the registrar 
 officer was not. 
 
 Place The place at which an affidavit is sworn should 
 
 where afB- , 
 
 davit is appear on the face of the jurat. Even, however, 
 should where this has been inadvertently omitted, the 
 the jurat. Court has allowcd the affidavit to be filed and 
 
 used in evidence, 
 Meeky. Thus, in Meek v. Ward (6), where an affidavit 
 
 was taken before a notary, who was certified by 
 the Governor of the state of New York to be a 
 notary public of the county Niagara, and the 
 notary certified that the affidavit was sworn 
 before him on a certain day, but the affidavit did 
 not on the face of it state the place at which it 
 was sworn. The Vice Chancellor Wood said he 
 
 (a) 17 Jur. 170. 
 
 (S) 10 Hare, Appendix, p. i. ; S. C. 21 L. T. 334. 
 
 Ward. 
 
AFFIDAVIT EVIDENCE. 2S9 
 
 thought the Court must assume that the notary 
 was acting in pursuance of his duty, and that he 
 would not perform a notarial act out of the 
 jurisdiction in which alone he had jurisdiction to 
 do so, and his Honor directed the affidavit to be 
 filed. 
 
 This, however, was not strictly a case falling 
 within the provisions of the 22nd section of the 
 act, the affidavit being sworn before a notary 
 public out of her Majesty's dominions. The 
 Court here relied on the seal of the Governor of 
 New York as attesting that the person before 
 whom the affidavit was sworn filled the character 
 of notary public in Niagara. Whether the Court 
 would take judicial notice of the seal of a notary 
 public at any place within her Majesty's domi- 
 nions, the place at which the affidavit was sworn 
 not appearing on the face of the jurat may 
 perhaps be doubted. At all events the Court 
 would probably require the defect in the form of 
 the affidavit to be satisfactorily accounted for, 
 before allowing it to be filed. 
 
 In re Mahon's Trust (a), an affidavit sworn 
 before a Master extraordinary of the Court of 
 Chancery in Ii^eland, was received here without 
 the authentication of his official character. See 
 also Day v. Day. (b) 
 
 The same rule would of course prevail now 
 
 (o) 9 Hare, 459. 
 (i) 11 Beav. 36. 
 
240 THE NEW CHANCERY PRACTICE. 
 
 under the 22nd section of the New Procedure 
 Act, with respect to affidavits taken in the 
 colonies, if sworn in proper form and before 
 a person duly authorized by that section. 
 Place of It is hardly necessary to mention that an 
 of deponent affidavit inust state the place of residence of the 
 
 should an- j , 
 
 pear on the acponent, 
 
 avit. Thus, where on an affidavit the deponent only 
 
 described himself as S., clerk to E. I., Esq,, 
 
 barrister-at-law and assessor of the Court of 
 
 Passage at the borough of L. Court, with no 
 
 description of the clerk's own residence, it was 
 
 held insufficient. Winch v. Williams, (a) 
 
 Inquiry With rcspcct to the proposed substitution of 
 
 Chancery affidavit cvideucc for depositions under the old 
 
 sioner? as system in so great a number of cases, Mr. Pem- 
 
 If affidavit berton Leigh justly observes in his evidence be- 
 
 evi ence. ^^^^ ^^^q Chauccry Commissioners, Appendix (B), 
 
 p. 249, " Though the cases in which there is a 
 
 real difficulty in ascertaining naaterial facts at 
 
 the hearing of a cause in the Court of Chancery 
 
 may not in themselves be few, they are certainly 
 
 very few in comparison with the great number 
 
 of cases heard there, in those suits which form 
 
 the staple business of the Court, suits for the 
 
 administration of estates by creditors or legatees; 
 
 for partnership or other accounts; for specific 
 
 performance ; redemption or foreclosure of mort- 
 
 (o) 16 ,Tur. 935. 
 
AFFIDAVIT EVIDENCE. 
 
 gages; breaches of trust, &c., where the parties 
 have gone regularly to issue, where the defend- 
 ants have answered upon oath and produced the 
 documents in their possession, the proofs are 
 often merely formal, of matters which the de- 
 fendants do not admit as not knowing them, or 
 cannot admit by reason of infancy or coverture, 
 or admit with such qiaalifications, that the plain- 
 tiff does not choose to read the admission. The 
 dispute is usually much more upon the construc- 
 tion or effect of documentary evidence, and the 
 inferences and consequences to be deduced from 
 facts, than upon facts themselves. I think this 
 is so, though of course in a much less degree, 
 even in suits for relief against frauds." 
 
 It is true that in contested cases, and sometimes 
 perhaps in other cases, affidavit evidence is open to 
 the strictures made upon it by the late examiner, 
 Mr. Plumer, at page 243 of the same Appendix. 
 He there says, "In affidavits prepared as they 
 commonly are in a formal shape under professional 
 advice, the language is that which the deponent 
 adopts, rather than dictates ; colourable epithets 
 and expressions are introduced, which would not 
 have occurred spontaneously to the witness; 
 minor facts are put in incidentally and by way of 
 description, as to which if the witness were ques- 
 tioned as a substantive matter of inquiry, he 
 would give, no legal proof, and a laxity of state- 
 ment is admitted but little advanced beyond 
 
 K 
 
 241 
 
242 THE NEW CHANCERY PRACTICE. 
 
 mere hearsay evidence. The witness, moreover, 
 is exposed to no kind of cross-examination, and 
 the system of counter-affidavit, besides being 
 expensive, often leads to much cross-swearing, 
 partisanship, and the introduction of personal and 
 irrelevant matter." Whilst under the old prac- 
 tice, he continues, " the evidence that the witness 
 can fairly give, is to a certain extent sifted ; he 
 is called upon to state the means of his know- 
 ledge, and the reasons for his belief; his own 
 language is adhered to as closely as possible; 
 and he is confined within at least the broader 
 and more ordinary rules of evidence." 
 
 The cases, however, in which these evils may 
 attend the taking of evidence by affidavits, are 
 not those of the most frequent occurrence. The 
 general business of the Court is that relating to 
 matters, in which the Court is applied to, to act 
 as a trustee. 
 
 The late examiner, Mr. Plumer, notices some 
 of the inconveniences which may possibly at- 
 tend even the new mode of taking evidence 
 orally before the examiner under the provisions 
 of the act, though in presence of the parties 
 attending by their counsel or solicitor. He says, 
 " I am fully sensible how far short this process 
 falls of oral examination in open Court, and that 
 it is itself open to some objection ; as for instance, 
 disputes would probably arise as to the pro- 
 priety of either question or answer, which the 
 
AFFIDAVIT EVIDENCE. 
 
 243 
 
 officer might not have sufficient Aveight to repress 
 or control, and observations would be very apt 
 to be made at the hearing, respecting the manner 
 and deportment of a witness whilst under ex- 
 amination, of the fairness and accuracy of which 
 the Court would have no means of judging." 
 Appendix (B), p. 244. 
 
 All the difficulties felt by the Chancery Com- 
 missioners in effecting the various changes, with 
 respect to the mode of taking evidence, will be 
 found in their valuable report, and the replies to 
 questions by the different parties examined or 
 consulted, particularly by Lord Cranworth, Lord 
 St. Leonards, Lord Justice Knight Bruce, and 
 Mr. Pemberton Leigh, and on the mode of taking 
 evidence at law, by Mr. Walton, one of the 
 examiners of the Court of Exchequer, will be 
 found to throw much light on the general scope 
 and aim of the several changes in the practice, 
 and consequently on the true construction to be 
 put on the several clauses of the New Procedure 
 Act, relating to evidence. See Commissioners' 
 Keport, pp. 8, 24, 30, 200, 231, 243, 248. 
 
 The 40th section of the New Procedure Act Any party 
 15 & 16 Yict. c. 86, directs that any party in may by"^* 
 any cause or matter depending in the said requiTe* 
 Court may, by a writ oi subpoena ad testificandum o"any*wi^u 
 or duces tecum, require the attendance of any "^^^''^'''"'^ 
 witness before an examiner of the said Court, or 
 before an examiner specially appointed for the 
 
 R 2 
 
 an exa- 
 miner. 
 
244 
 
 THE NEW CHANCERY PEACTICE. 
 
 purpose, and examine such witness orally, for the 
 purpose of using his evidence upon any claim, 
 motion, petition, or other proceeding before the 
 Court, in like manner as such witness would be 
 bound to attend and be examined with a view to 
 the hearing of a cause; and any party having 
 made an affidavit to be used, or which shall be 
 used on any claim, motion, petition, or other 
 proceeding before the Court, shall be bound on 
 being served with such writ to attend before an 
 examiner, for the purpose of being cross-exa- 
 mined: Provided always, that the Court shall 
 always have a discretionary power of acting upon 
 such evidence as may be before it at the time, 
 and of making such interim orders, or otherwise, 
 as may appear necessary to meet the justice of the 
 case. See the case of May v. Biggenden, and 
 Smith V. The Swansea Dock Company, noticed 
 supra, on the construction of this section. 
 Extrajts Under the Law of Evidence Amendment 
 registers Act 14 & 15 Vict. c. 99, scctiou 14, extracts 
 dence with, from parish registers of entries of marriages, bap- 
 oation." " tisms, and burials, purporting to be signed by the 
 incumbents of the respective parishes, are now 
 receivable in evidence without any further veri- 
 fication. In re Neddy HalVs Estate^ (a) 
 
 It may be noticed here, before concluding the 
 Chapter on Evidence, that the order made by the- 
 
 (a) 9 Hare, Appendix, p. xyii. 
 
AFFIDAVIT EVIDENCE. ' 245 
 
 Vice Chancellor Stuart in the case of Mcintosh Order in 
 V. The Great Western Railway Company^ which is y. The 
 stated in the last section, was in substance tem Raii- 
 affirmed by the Lords Justices on appeal. p°«y 
 
 ri 1 T/».. 1 T" affirmed. 
 
 oeveral modiiications were, however, made m 
 the terms of the order, hy arrangement between 
 the counsel of the respective parties, and the 
 order as ultimately drawn up was in a very 
 different form. 
 
246 THE NEW CHANCERY PRACTICE. 
 
 CHAPTER VI. 
 
 ON PARTIES. 
 
 New Rules as to parties, when it will be sufficient 
 to serve a notice of the decree, practice of setting 
 down cause on objection for want ^f parties 
 abolished, origin and effect of this practice, when 
 cestuis que trust necessary parties in foreclosure 
 suits, when not, infant cestuis que trust and per- 
 sons entitled to derivative and subordinate in- 
 terests sometimes dispensed with in foreclosure 
 suits, as to parties in suits for executing trusts, 
 in suits relating to breach of trust, where sale 
 under decree in administration suit all cestuis 
 que trust must generally be parties, rule where 
 suit framed under old practice, 'parties out of the 
 jurisdiction, not necessary in suits for appoint- 
 ment of new trustees to make all cestuis que trust 
 parties, where after objection taken plaintiff 
 amends his bill by adding parties such parties 
 must be served, costs of the day where suit 
 defective as to parties, where parties alleged to 
 be out of the jurisdiction the fact must be proved, 
 course taken where the fact is not proved, 
 infants out of the jurisdiction may be served with 
 notice of decree, time for service of notice of 
 decree, entering memorandum of such service. 
 
PARTIES. 247 
 
 The following important rules for dispensing New rules 
 with parties are introduced by the 42nd section pensing 
 of the New Procedure Act 15 & 16 Vict. c. 86. ric* ''"' 
 
 Eule 1. Any residuary legatee or next* of kin 
 may, without serving the remaining residuary 
 legatees or next of kin, have a decree for the 
 administration of the personal estate of a deceased 
 person. 
 
 Rule 2. Any legatee interested in a legacy 
 charged upon real estate, and any person inte- 
 rested in the proceeds of real estate directed to 
 be sold, may, without serving any other legatee 
 or person interested in the proceeds of the estate, 
 have a decree for the administration of the estate 
 of a deceased person. 
 
 Rule 3. Any residuary devisee or heir, may, 
 without serving any co-residuary devisee or co- 
 heir, have the like decree. 
 
 Rule 4. Any one of several cestuis que trust 
 under any deed or instrument, may, without 
 serving any other of such cestuis que trust, have a 
 decree for the execution of the trusts of the deed 
 or instrument. 
 
 Rule 5. In all cases of suits for the protection 
 of property pending ligitation, and in all cases of 
 the nature of waste, one person may sue on 
 behalf of himself and of all persons having the 
 same interest. 
 
 Rule 6. Any executor, administrator, or trustee 
 may obtain a decree, against any one legatee. 
 
248 THE NEW CHANCERY PRACTICE. 
 
 next of kin, or cestui que trust, for the adminis. 
 tration of the estate or the execution of the 
 trusts. 
 
 Rule 7. In all the above cases, the Court, if 
 it shall see fit, may require any person or per- 
 sons to be made a party or parties to the sUit, 
 and may, if it shall think fit, give the conduct of 
 the suit to such person as it may deem proper, 
 and may make such order ia any particular case, 
 as it may deem just for placing the defendant on 
 the record on the same footing in regard to 
 costs as other parties having a common interest . 
 with him in the matters in question. 
 Absent Rule 8. In all the above cases the persons who, 
 
 parties to '■ 
 
 be served according to the present practice of the Court, 
 
 with notice ° , 
 
 of the would be necessary parties to the suit, shall be 
 
 decree. . . 
 
 served with notice of the decree, and after such 
 notice they shall be bound by the proceedings in 
 the same manner as if they had been originally 
 made parties to the suit, anJd they may by an order 
 of course have liberty to attend the proceedings 
 under the decree, and any party so served may 
 within such time as shall in that behalf be 
 prescribed by the General Order of the Lord 
 Chancellor, apply to the Court to add to the 
 decree. ' 
 
 Rule 9. In all suits concerning real or per- 
 sonal .estate which is vested in trustees under a 
 will, settlement or otherwise, such trustees shall 
 represent the persons beneficially interested under 
 
PARTIES. 249 
 
 the trust in the same manner, and to the same 
 extent as the executors or administrators in suits 
 eoncerning personal estate represent the persons 
 beneficially interested in such personal estate, 
 and in such cases it shall not be necessary to 
 make the persons beneficially interested under 
 the trusts parties to the suit, but the Court may 
 upon consideration of the matter on the hearing 
 if it shall so think fit, order such persons or any 
 of them to be made parties. 
 
 These rules for dispensing with parties, are 
 perhaps amongst the most important alterations 
 in the whole act. Some of them existed pre- 
 viously as to claims. They now all extend 
 equally to bills as well as to claims. The 
 extreme anxiety of the Court under the former 
 system to do complete justice, by having before 
 it all the parties, who could in any way, however 
 remote, be interested in or affected by the result 
 of the proceedings, was often productive, by the 
 enormous expense occasioned, of most ruinous 
 and disastrous consequences to the very parties 
 whom the rule was intended to benefit. 
 
 The working of the system will be found ably 
 noticed in the Chancery Commissioners' Report, 
 pp. 17, 18. i 
 
 Rule 9 is perhaps of all these rules the most 
 important and extensive in its application, and is 
 the one with respect to the construction and 
 extent of which most questions have been raised 
 
250 THE NEW CHANCEKY PRACTICE. 
 
 since the New Procedure Act came into ope- 
 ration. 
 
 The limitation as to the extent to_ which the 
 cestuis que trust are to be represented, by the 
 analogy to the case of executors and adminis- 
 trators in suits concerning personal estate, should 
 be noted; and the decisions of the Court on 
 the 30th General Order of August 1841, will 
 aid the construction of this rule. See Savory v. 
 Barber (a), and Ward v. Bassett. (b) 
 Practice of By the 43rd section of the New Procedure 
 down^ause Act 15 & 16 Vict. c. 86, the old practice of 
 tibnfiff" setting down a cause merely on an objection for 
 parties Want of ^parties is abolished. 
 abolished. ^j^g gg^j^ Q^^^^ ^^ ^^^ 26th of August 1841, 
 
 which first introduced this practice, was found not 
 to work well, and the practice under it is there- 
 fore now abolished. It was found in most cases, 
 where a question arose as to parties, very far 
 from an easy matter to decide beforehand, who 
 might and who might not turn out eventually to 
 be necessary parties. 
 Origin and The Court had to look to the whole pleadinsrs, 
 this prac and sometimes even to the whole merits and the 
 evidence in the suit for the purpose. For example, 
 in FenwicJc's case (c), under the Winding-up Act, 
 out of which there afterwards arose a suit. It 
 
 (a) 4 Hare, 125. 
 
 (J) 5 Hare, 179 ; see also 16 Jur. 227. 
 
 (e) 1 De G. & Sm. 557. 
 
 tice. 
 
PARTIES. 251 
 
 was a- case where the father had taken shares in a 
 joint stock CQinpany in the names of his sons. 
 To a bill ■ by a i-egistered trustee of the shares Fmwkk's 
 against the father for an indemnity from the 
 calls, the father objected by his answer that the 
 sons were necessary parties ; which involved the 
 whole merits of the suit and the nature and 
 terms of the contract, both with the company and 
 the trustee. The Court was in a difficulty, and 
 could not in that stage of the cause dispose. of the 
 question. 
 
 So an ameudinent of the bill might make new 
 parties necessary or might dispense with some 
 who were previously made parties. It happened 
 therefore in general, that after much tiine lost in 
 the discussion of a matter which was not ripe for 
 it, the Court ordered the objection to stand over 
 untn the hearing, which was leaving things just 
 where they were before. If a plaintiff could 
 always know, at the time of filing his bill, whom 
 he ought to make parties, the practice now 
 abolished would be very beneficial; as at once 
 throwing on the plaintiff the extra costs occa- 
 sioned, either by his burthening the suit with 
 parties who had no interest ; or otherwise if the 
 suit were defective for want of parties, by his 
 haviiig to add them after the hearing, by 
 amendment or supplemental bill. 
 
 Some of the inconveniences which were expe- 
 rienced previous to the Order of August 1841, 
 
252 THE NEW CHANCERY PRACTICE. 
 
 wUl, therefore, still be felt, but in a much less 
 degree, owing to the important provisions of the 
 42nd section of the act, so materially altering the 
 practice of the Court in respect of necessary 
 parties. 
 
 The objection may still be taken by demurrer 
 or plea as before, but demurrers or pleas merely 
 as to parties, are not much encouraged, and they 
 are open to some of the inconveniences which 
 were felt under the 39th Order of 1841. 
 
 It will in general be quite sufficient for a 
 
 defendant to raise the objection by his answer, 
 
 and this will protect him as to costs at the 
 
 hearing, if the objection is then held valid. 
 
 Where Where, in a suit for foreclosure, the persons 
 
 ceituis que , . • 
 
 trust not having the control over the mortgaged propertyj 
 parties in and over the personal estate of the mortgagor, 
 
 foreclosure , , , n , i , • 
 
 suits. are present on the record, the cestuis que trust are 
 not necessary parties to the suit. In Sale v. 
 
 sakv. Kitson (a), the foreclosure claim was filed by the 
 representatives of the mortgagee against the 
 beneficial devisees of the equity of redemption in 
 one moiety of the mortgaged premises, and against 
 the devisees in trust of the other moiety, who 
 were also the executors of the mortgagor. The 
 cestuis qv^ trust of the second moiety were not 
 made parties to the claim. The Appeal Court 
 held, that as all the persons having the control 
 
 (a) 17 Jur. 170. 
 
 Kitson. 
 
PARTIES. 253 
 
 over the property, whether real or personal, out 
 of which the mortgage was to be satisfied, were 
 named as parties on the record, the claim might 
 properly be heard without the presence of the 
 cestuis que trust. 
 
 So where the foreclosure bill or claim asks for in suits 
 
 1 /> 1 11 seeking 
 
 a sale oi the property mortgaged by a testator sale not 
 
 fore closure 
 
 instead of a foreclosure, under the 48th section of 
 
 the New Procedure'^ Act ; if the devisees in trust 
 
 of the estate are also the executors, and are 
 
 therefore the persons in whom any funds which 
 
 may be applicable to the payment of the debts of 
 
 the testator, and to the redemption of the estate 
 
 are vested, it is not necessary to make the cestuis 
 
 que trust parties, but the decree may be made in -Ha«na« v. 
 
 their absence. Hannan v. Riley, (a) 
 
 The cestuis que trust may be necessary parties 
 to the conveyance of the estate, but in general 
 only for the purpose of covenanting with the 
 purchaser. The trustees convey to the pur- 
 chaser the legal estate, and the Court then deals 
 with the purchase money. 
 
 But where the trustees in whom the mortgage when aU 
 is vested do not also fiU the character of ^1" must 
 executors, the representation of the cestuis que be^arti/s 
 trust of real estate by the trustees, under Rule 9, ^c\o°lre 
 in suits against them for foreclosure or sale, ""''' 
 though it may be applied to the case of infant 
 
 (a) 9 Hare, Appendix, p. xl. 
 
254 THE NEW CHANCERY PRACTICE. 
 
 cestuis que trust, and to trustees of derivative 
 interests under settlements of shares of children 
 in remainder, and the like cases, will not be 
 otherwise extended to the case of adult cestuis que 
 Goidsmid tvust. This point arosc in Goldsmid v. Stone- 
 hewer, hewer, (a) It was a foreclosure claim by a first 
 mortgagee against the mortgagor and the second 
 mortgagee. Before the hearing of the claim the 
 second mortgagee filed an affidavit stating that 
 the second mortgage was held by him as trustee 
 of a marriage settlement, under which trusts were 
 directed for the husband and wife for their lives, 
 and for the children of the marriage in remainder; 
 and that some of the shares of the children had 
 been again made the subject of other settlements. 
 When The Vice Chancellor Turner, in giving judgment; 
 cestuis que made these observations, which are applicable to 
 persons cascs of forcclosure generally : " The question is, 
 derivative" whether in order that a decree for foreclosure 
 dhiate °^ might be niade, it is sufficient that the trustees 
 dispensed ^^ mouics secured by the second mortgage are 
 "'*• parties, without the cestuis que trust under the 
 settlements being also parties. I have carefully 
 considered the point with the desire of relieving 
 the plaintiff as far as it could be safely done, 
 from the necessity of bringing the persons 
 beneficially interested before the Court. It 
 was suggested, that the Court might act on the 
 
 («) 9 Hare, Appendix, p. xxxix. 
 
PARTIES. 255 
 
 principle which is applied in the case of exe- 
 cutors, and which is now made applicable in 
 proper cases to the trustees of real estate. If 
 the mortgage had been made to the party or 
 become vested in him in the character of executor, 
 it would be sufficient to make him a defendant, 
 without any of the persons beneficially interested, 
 and the decree of the Court would bind all the 
 persons who might be so interested ; but there is 
 this difference between the case of an executor 
 and that of a trustee, that the executor has the 
 control of the whole estate of his testator, whilst 
 the power of the trustee is limited to the parti- 
 cular fund which is the subject of the trust,. and 
 he has not necessarily the control of any other 
 funds, I think, therefore, that the Court should 
 not by a decree of foreclosure against the trustee 
 only, without giving the eestuis que trust the 
 opportunity of redeeming, foreclose all the parties 
 interested under the settlements. Still it is clear 
 that the infants and the trustees of the settle- 
 ments which have been made of the shares of 
 the children in remainder, cannot reasonably be 
 expected to be in a position to redeem the estate, 
 and. not having the means of redeeming the 
 mortgage, I think it is not necessary they should 
 be made parties.. If the husband and wife and 
 the adult persons interested under the trusts 
 of the original settlement are made parties the 
 order may be made. 
 
256 THE NEW CHANCERY PRACTICE. 
 
 The Court here dispensed with the infant 
 cestuis que trust. It is not, however, a matter of 
 course to do so in all cases of the like kind, 
 and the Court is sometimes reluctant to proceed 
 
 Scawen v. in thclr absence. Thus, in a late case of Scawen 
 V. Nicholson (a), which came before the Vice 
 Chancellor Wood, an order had been obtained 
 on an ordinary claim for foreclosure. It after- 
 wards appeared that two of the defendants were 
 still infants. The Court declined to allow the 
 claim to be set down for rehearing against the 
 infants, but directed a supplemental claim to be 
 filed. The Vice Chancellor Wood distinguished 
 this .case from Goldsmid v. Stonehewer which was 
 cited, observing that it never could be for the 
 benefit of infants to expedite a foreclosure suit 
 against them. 
 
 As to par- The 9th Rule of the 42nd section of the New 
 
 ties in suits -p, , 
 
 for exe- Proccdurc Act is not confined to administration 
 
 cuting , 
 
 trusts. suits, but applies to all suits where the interest 
 of the cestuis que trust is sufficiently represented 
 . by, and his powers are vested in, the trustee. 
 Thus where the object of the suit was to raise a 
 sum of money under the trusts of a term in a mar- 
 riage settlement, and the party who took the estate 
 subject to^the term, had died, after devising the 
 fee on certain trusts ; altljpugh the suit was not 
 to administer his estate, nor to execute the trusts 
 
 (a) 17 Jur. ,370. 
 
PARTIES. ' 257 
 
 of his will, but tended to diminish and cut down 
 his estate^ still the Court held that the persons 
 beneficially interested under his will, were suffi . 
 ciently represented by his devisees in trust. 
 Fowler v. Bayldon. (a) 
 
 In the above case of Fowler v. Bayldon, it was 
 objected to the frame of the suit that Rule 9 
 applied only to cases where the real or personal 
 estate, which was the subject of the settlement, was 
 sought to be charged by the suit, or to suits for 
 general administration of the trusts of the will " 
 or other instrument. But the Vice Chancellor 
 Wood dissented from this construction, and made 
 the decree in the absence of the cestuis que trust 
 of the fee. 
 
 In a suit instituted by one of the several cestuis in suits 
 que trust -oi a marriage settlement, to make the bre'ch^of" 
 trustees liable for a loss arising from an improper ™^ ' 
 investment, which constituted a breach of trust, 
 it was held to be no objection to such a suit, that 
 the mortgagees of the shares of the other cestuis 
 que trust' were not parties. The Master of the 
 Rolls said that the 42nd section of the New 
 Procedure Act 15 & 16 Vict, c. 86, applied to 
 all suits, and one of the rules was, " that any one 
 of the several cestuis que trust under any deed or . 
 instrument might, without serving any other of 
 such cestuis que trust, have a decree for the 
 
 (a) 9 Hare, Appendix, p. Ixxviii. 
 S 
 
258 TH£ NEW CHANCERY PRACTICE. 
 
 execution of the trusts of the deed or other 
 instrument." Without deciding that that pro- 
 vision extended to the case of repairing a breach 
 of trust, his Honor was of opinion that, dealing 
 only with the share of the plaintiff, he could 
 order the trustee to recoup the plaintiff's share 
 of the trust fund, and also to pay the costs of 
 the suit. M'-Leod v. Annesley. (a) 
 Where Although the Court will frequently dispense 
 
 dec,ree in with the presence of cestuis que trust in fore- 
 
 adminis- . , . . 
 
 tration closure suits, as well as in suits seeking a 
 
 suit, all , „ , 
 
 cestuhque sale of the mortgaged property, yet when an 
 generally estate is to be sold under the decree of the 
 Court in an administration suit, the general 
 rule (with a possible exception in some cases of 
 extreme difficulty) is, that all the parties inte- 
 rested in the proceeds must, to secure a proper 
 and advantageous sale, as well as to protect the 
 title of purchasers from being open to inquiry or 
 impeachment, be parties originally to the suit, 
 or be served with notice of the decree under the 
 8th Rule. The Court still adopts this general 
 rule as to parties in suits for the administration 
 and distribution of the proceeds of real estate, 
 notwithstanding that under the 3rd Rule of the 
 42nd section of the New Procedure Act, any one 
 of several devisees may have a decree for the 
 execution of the trusts, and notwithstanding that 
 
 (a) 17 Jur. 608. See, however, Lenaghan v. 
 noticed supra. 
 
PARTIES. 259 
 
 the 19th General Order of the 1 6th of October 
 1852 enables the Judge, if he shall think fit, to 
 dispense with service of the decree upon any 
 party. 
 
 The point was very fuUy considered by Vice Dbodyy. 
 Chancellor Turner in Doody v. Higgins. (a) '^^"" 
 There the wiU, after giving life estates, directed 
 an absolute conversion of the realty, and the 
 proceeds were to go amongst " the following 
 persons and their heirs for ever, viz., the grand- 
 children of A., the grandchildren of B., and the 
 grandchildren of C. Some only of the respective 
 classes of grandchildren were parties. It was 
 contended that as there were before the Court 
 persons representing every class of the grand- 
 children, and of the real and personal repre- 
 sentatives of grandchildren who could be inte- 
 rested under the will, the Court might, under 
 the 51st section of this act, adjudicate on the 
 question of construction, «,nd direct the trust • 
 estate to be sold, without requiring the absent 
 parties to be brought before the Court at the 
 hearing, and that to save the expense of bringing 
 in so many parties, and of showing their respec- 
 tive titles or pedigrees, the Court would dis- 
 pense with the service of the decree upon the 
 absent parties under the 8th Eule of the 42nd 
 section of the act. 
 
 (a) 9 Hare, Appendix, p. xxxii. 
 S 2 
 
260 THE NEW CHANCERY PRACTICE. 
 
 The Vice Chancellor, however, held, after com- 
 municating with the other equity Judges, that 
 the absent cestuis que trust could not be dis- 
 pensed with. His Honor delivered the following 
 judgment on the question of parties: " The 
 decree, and each of these parties has as much 
 estate in this case is to be sold under the 
 interest in its being properly and advantageously 
 sold, as the plaintiffs themselves have. Common 
 justice, therefore, seems to require, that they 
 should be represented in the sale. Again, it is of 
 great importance that the titles of purchasers 
 under the decrees of the Court should not be ' 
 open to impeachment, and this can hardly be 
 effected, where the sale takes place in the absence 
 of interested parties. The Court indeed, where 
 it proceeds in the absence of parties, might, and 
 from what is to be found in the Lord Chancellor's 
 "Treatise on the Law of Property," (p. 682) 
 would, protect a bond fide purchaser under its 
 decree, but surely the absent parties would have 
 the right to inquire into the question of honcL 
 fides. It is true that the same difficulties which 
 present themselves in this case, equally apply to 
 the case of a suit by creditors, where one is 
 permitted to sue on behalf of himself and others, 
 but it is to be observed that the law in that case 
 gives a power to the trustees to deal with the 
 estate, which it does 'not give in the case of 
 legatees. 
 
PARTIES. 261 
 
 I have examined the cases upon this subject in 
 the hope that I might find some means of 
 avoiding the necessity of bringing these parties^ 
 before the Court, but I have found no case in 
 which the Court has allowed one legatee or one 
 cestui que trust to represent the others, where the 
 estate was to be sold under the decree, except 
 the case o£ Batten v. Parfitt (a), and the grounds 
 of that decision do not appear. The case, how- 
 ever, was very peculiar in its circumstances, the 
 Legislature having enabled the distribution of 
 the fund upon the petition of any party inte- 
 rested. In the other cases in which accounts 
 only were directed, there was not the same 
 difficulty in proceeding in the absence of all the 
 ■parties, for the Court would of course secure for 
 the absent parties, their shares of what was 
 found due on the balance of the account, and if 
 more was coming to them, they might sue for it, 
 as they were not bound by the accounts taken in 
 their absence. I am not prepared to say, that 
 the Court would in no case proceed to a sale 
 without all the parties interested being made 
 parties to the suit, but I think it can only be 
 done in extreme cases, and that it ought not 
 to be done in this case." His Honor added, 
 " It is right to observe that there is now less 
 reason for dispensing with the parties than there 
 formerly was, as the Legislature has provided an 
 
 (a) 2 T. & C, C. C. 343. 
 
262 THE NEW CHANCERY PRACTICE. 
 
 easy means of bringing parties before the Court, 
 by serving them with notice of the decree, and 
 the Orders enable the parties to be dispensed 
 with in case of absence or other sufficient 
 cause, and the parties who come in may be 
 classed." His Honor concluded his judgment 
 with this observation, " I think it right further 
 to add, that the difficulty which presents itself 
 in this case, did not escape the attention of the 
 Chancery Commissioners. It was much con- 
 sidered by them, and it was felt that the only 
 eflFectual remedy would be, to constitute a real 
 representative, which was suggested by their 
 report. 
 Where suit It would sccm that wherc the suit has been 
 
 framed 
 
 under old framed under the old practice, as by bringing- 
 all must be before the Court several of the residuary devisees 
 under a wUl, instead of a single residuary devisee, 
 there the absence of one residuary devisee will 
 make the suit defective as to parties. Thus in 
 Densem v. .Elworthy (a), which was a suit to 
 execute the trusts of a will for the sale and dis- 
 tribution of the proceeds of the real estate of the 
 testator amongst his residuary legatees, the bill 
 was framed according to the old practice, bringing 
 all the residuary devisees and legatees before the 
 Court, but the trustees of the settlement made on 
 the marriage of one of the residuary legatees were 
 
 (a) 9 Hare, Appendix, p. xlii. 
 
PARTIES. 263 
 
 not parties to the suit, nor were the issue of that 
 marriage. 
 
 The Vice Chancellor Turner said, under the 
 act the suit might be instituted by one of the 
 residuary devisees or legatees, and the decree 
 might then have been made, and the other parties 
 might have been served with notice, of the decree. 
 The present suit was not, however, framed in the 
 manner authorized by the new act. The plaintiff 
 had brought before the Court all the residuary 
 legatees, but not the trustees of the settlement of 
 one of the shares. He was of opinion that the 
 suit being framed in this form, the trustees of the 
 settlement should be made parties, but he thought 
 those trustees would sufficiently represent the 
 children of the marriage, and that the latter need 
 not be made parties. 
 
 The Court will appoint new trustees and direct Not necos- 
 a conveyance of the trust estate in a suit by some S for 
 only oi the cestuis que trust. In. Jones y. James (a), mentoV 
 a testator devised his freehold estates upon trusts °ee" to"'' 
 for sale, and gave the proceeds to his wife for life, "^^^^/^ae 
 and afterwards as she should by deed or will [[gj*"""^' 
 appoint, and he empowered his wife to appoint a 
 new trustee in the place of any deceased trustee. 
 She did not exercise this power, but the surviving 
 trustee devised the trust estates, and a question 
 arose whether his devisees could make a good 
 
 (a) 9 Hare, Appendix, p. Ixii. 
 
264 THE NEW CHANCERY PKACTICE. 
 
 title to the trust estates. The wife left all the 
 
 residue of the property of her late husband to 
 
 jonef V. the plaintiffs. The Vice Chancellor Turner made 
 
 James. • ■ ■ /> i 
 
 the decree for the appointment of the proposed 
 trustees and directed that the defendants should 
 convey to such new trustees the estates -devised 
 by the will in trust for sale; the conveyance to 
 be settled; notice of the decree to be served, 
 under the 8th Eule, upon the parties interested 
 in the real estate under the wills of the testator 
 or his widow, and whose interests under the same 
 should not appear to be satisfied. 
 
 It is now the usual practice in these cases to 
 dispense with any of the cestuis que trust, where 
 the object is only the appointnient of new trustees, 
 the Court settling the conveyance of the trust 
 property, and notice of the decree being served, 
 under the '8th Rule, upon the other parties 
 interested. 
 Where When the defendant by his answer raises the 
 
 after objec- ^ _ ■' 
 
 tion taken objection of the want of parties, and the plaintiff 
 amends his accordingly amends his bill by adding them, 
 adding such parties must be served, though residing out 
 such par- of the jurisdiction of the Court. In Moody v. 
 be served. Bannister (a), where this point arose the object 
 of the suit was to have a deed set aside, by which 
 the plaintiff assigned her interest under a mar- 
 riage settlement in the property in question to 
 three trustees for the benefit of her creditors. 
 
 («) 21 L. T. 148 ; S. C. 1 Drewry, 520. 
 
Bannister* 
 
 PARTIES. 265 
 
 These three trustees were resident in Scotland: 
 Boys, the trustee of the marriage settlement, was 
 in Australia. 
 
 Upon an objection being taken by some of the 
 defendants in their answer to the absence of these 
 respective trustees, they were added by amend- 
 ment, but the amended bill also stated that they 
 were not residing^ within the jurisdiction of 
 the Court. Upon this the Vice Chancellor Kin- Moodtf ». 
 dersley said : " The question here is, whether 
 .Boys and the three other trustees ought to be 
 before the Court. I think, as Boys is in 
 Australia, he need not be served, but there 
 being no real difficulty in serving the other 
 three, as they are parties, they must be brought 
 before the Court. The plaintiff filed her bill 
 against the defendants, insisting on her right to 
 have a certain deed set aside, or rather regarded 
 as conveying only a redeemable interest. The 
 defendants alleged that this subsequent deed was 
 an absolute assignment of all the plaintiff's 
 interest in the property, or at all events such 
 a transfer of it, that a decision against her in the 
 absence of the assignees would not prevent them, 
 from asserting their right on behalf of the cre- 
 ditors as against the defendants; and it was very 
 properly objected by the answer, that if any 
 money was paid to or came to the hands of these 
 trustees, they ought to be before the Court. 
 The plaintiff then amended her bill and made 
 
266 THE NEW CHANCKKY PKACTICE. 
 
 them parties to the suit. Having done this she 
 thereby made a concession to the defendants' 
 objection. When the defendants insist upon 
 certain persons being made parties, and the 
 plaintiff accordingly makes them such ; he admits 
 the necessity of their being so added to the suit, 
 and they must be before the Court. I assume 
 that they are out of the jurisdiction, that three 
 are in Scotland, but nevertheless, I think, subject 
 to the proof of this fact, that they must be served 
 and brought before the Court." 
 Costs of Upon the defendants' counsel applying for the 
 
 where suit costs of the day, his Honor said, " the old rule 
 
 defective •niipi -ii i • • 
 
 as to par- was, if the defendants raised the objection of want 
 
 ties. 
 
 of parties by their answer, the costs of the day 
 were given, but if they took it at the hearing 
 only, costs were not allowed. Then came the 
 new practice of setting down the case for special 
 hearing on the question of parties. That being 
 now abolished, the eflfect is to restore the old 
 rule, and therefore the costs of the day must 
 be allowed. The order made was for leave to 
 serve the three trustees who were in Scotland, 
 and to amend the bill by striking out Boys as a 
 party, and a formal affidavit was required to be 
 made, stating the place of residence of the three 
 trustees of the deed of trust for the creditors. 
 Where It appears from the above case of Moody v. 
 
 parties n • i i i /. 
 
 alleged to Banmster, that where the fact of parties beinff 
 
 be out of „,..-...,,,' ° 
 
 the juris, out oi the jurisdiction is alleged in the bill as 
 
PARTIES. ' 26? 
 
 a ground for not bringing them before the Court, diction, 
 it must be proved that they are so : and if they must be 
 are accessible, as, e. g., if they are only in Scot- ^'"^^ ' 
 land, the plaintiff ought to serve them, under the 
 course of procedure provided for that purpose by 
 the rules of the Court, so that they may appear 
 if they choose. 
 
 It also appears fyom the same case that where 
 there would be great difficulty in serving a 
 trustee, the Court will proceed in his absence, 
 notwithstanding that the property may be vested 
 in him, which is the subject-matter of the suit. 
 See Willats v. Busby (a), as to the form of the 
 decree which the Court wiU make in the absence of 
 a material party out of the jurisdiction who had 
 any beneficial interest. It is presumed, that the 
 same form of decree would not apply where the 
 absent party, as in Moody v. Bannister, has only 
 a dry legal estate, and no beneficial interest. 
 
 Where the fact of a party being out of the Course 
 jurisdiction of the Court has not been sufficiently where the 
 proved, and the objection is taken at the hear- proved, 
 ing, the course is not to allow the plaintiff to be 
 examined vivd voce to prove it, but to direct the 
 cause to stand over, until a day sufficiently 
 distant to give the plaintiff a fair opportunity to 
 prove his case in his own way. A cause which 
 came on with this defect in the evidence, the 
 Vice Chancellor Stuart directed to stand over 
 
 (a) 5Beav. 193. 
 
Chalmers 
 V, Laurie. 
 
 268 " THE NEW CHANCERY PRACTICE, 
 
 until the first cause day in the following Term. 
 Smith V. Edwards (a). 
 Infants out Jt has becu held that, under the 8th Rule of 
 
 of the juris- 
 
 diction may the 42nd section of the New Procedure Act, 
 
 be served , 
 
 with notice 15 & 16 Vict. c. 86, servicc of notice of a decree 
 
 of decree. . „,..,.. 
 
 may be made upon infants out of the jurisdiction 
 of the Court, and the clerk of records and writs 
 will be ordered under the 41st of the General 
 Orders of the 7th August 1852, to enter a 
 memorandum of such service. 
 
 In Chalmers v. Laurie (b), there had been 
 service of notice of a decree upon infants in Ire- 
 land. Brown v. Blount (c), Kirwan v. Daniel (d), 
 and the statutes 2 Wm. 4, c. 33, and 4 & 5 
 Wm. 4, c. 12, and the 33rd General Order of 
 May 1845, were cited with reference to serving 
 parties out of the jurisdiction under the old 
 practice. 
 
 The Vice Chancellor Turner said, " that a 
 question had been suggested on the 8th Rule, 
 whether the act referred to service out of the 
 jurisdiction of the Court. He had conferred with 
 some of the other Judges on this question, and 
 those with whom he had so conferred were of 
 opinion that the words of the act were so general, 
 that the service might be eflFected as well out of 
 as within the jurisdiction. With regard to ser- 
 
 (a) 16 Jur. 1041. 
 
 (b) 10 Hare, Appendix, p. xsvii. 
 
 (c) 2 E. & M. 83. 
 id) 7 Hare, 347. 
 
PARTIES. 269 
 
 vice on infants, the point had been considered. 
 There was at present no rule which prevented 
 service upon an infant of notice of the decree." 
 
 By the 40th of the General Orders of the 7th Time for 
 
 •^ . service of 
 
 of August 1852, the time within which a party "otice of 
 served with notice of a decree, under section 42 
 of the above act, may apply to the Court to add 
 to the decree, is ta be one month after such 
 service. 
 
 By the 41st of the same General Orders, a Entering 
 
 memoran- 
 
 raemorandum of the service upon any person or dum of 
 
 /../., 1 . . T such ser- 
 
 persons oi notice oi.the decree m any suit, under vice. 
 the 42nd section. Rule 8, is to be entered in the 
 office of the clerks of records and writs, upon due 
 proof by affidavit of such service. See further as 
 to parties to suits seeking merely declaratory 
 orders, infra, Chapter VII, on ' Declaratory 
 Decrees.' 
 
270 THE NEW CHANCERY PRACTICE. 
 
 CHAPTER VII. 
 
 ON DECLARATORY DECREES. 
 
 Section I. 
 
 No suit to be open to objection on the ground that a 
 merely declaratory decree is sought, Court may 
 now adjudicate between some only of the parties 
 interested, declaratory decree only made where 
 case for relief under the old practice, not in suits 
 quia timet, nor in respect of future and contin- 
 gent interests, practice where question raised by 
 special case, in administration suits the Court 
 sometimes makes a declaration as to expectant 
 and future interests, in general a bill preferable 
 to a special case under Sir G. Turner^ s Act, 
 Court more readily determines questions where 
 decision is sought with a view to a present 
 dealing with the property, some of the parties 
 interested in each view of the question must be 
 before the Court, decision not binding on absent 
 
DECLAKATORY DECREES AND ORDERS. 271 
 
 parties, Court will now carry into effect an 
 arrangement as to part of a testator's property 
 without administering the whole estate, whether 
 the b\st section applies to Xyrders in the nature of 
 administrative orders or only to mere declarations 
 of right, mode of raising costs in cases under this 
 section, whether Court can under this section 
 determine a legal question where not incident to 
 any equitable relief, case of the Birkenhead Dock 
 Company, Court of equity not to send a case for 
 the opinion of a Court of common law, may 
 determine legal right with a view to granting 
 equitable relief, former practice as to sending 
 cases to the common law Courts, practice now to 
 obtain attendance of common law Judge, mode 
 of obtaining attendance of common law Judge, 
 leave given still in a proper case to bring action, 
 provision against taking opinion of Court of law 
 not retrospective, whether the provision applies 
 where rights of the Crown concerned, qucere. 
 
 By the 50th section of the New Procedure Act jjo suit to 
 15 & 16 Vict. c. 86, no suit is in future to be objection" 
 open to objection on the ground that a merely g"oJf„^j 
 declaratory decree or order is sought thereby, ^^^l^f 
 and the Court may make binding declarations decleeT'^ 
 of right without granting consequential relief. sought. 
 
 By the 51st section of the New Procedure Act court may 
 15 & 16 Vict. c. 86, the Court may adjudicate on rcltebe". 
 questions arising between parties, notwithstanding only of°t"e 
 
272 THE NEW CHANCERY PKACTICE. 
 
 parties in- that thev mav be some only of the parties 
 
 tGr6st6d 4/, > •/ ^ 
 
 interested, in the property respecting which the 
 question may have arisen, or that the property in 
 question is comprised with other property in the 
 same settlement, will or other instrument, without 
 making the other parties interested in the pro- 
 perty respecting which the question may have 
 arisen, or interested under the same settlement, 
 will or other instrument, parties to the suit, and 
 without requiring the whole trusts and purposes 
 of the settlement, will or other instrument to be 
 executed under the direction of the Court, and 
 without taking the accounts of the trustees or 
 other accounting parties, or ascertaining the 
 particulars or amount of the property. 
 
 The case of Say v. Creed (a), will show how 
 the Court' was fettered- under the old prac- 
 tice, with respect to making merely declara- 
 tory decrees or orders. The whole state of 
 the property and the state of the family had 
 first to be ascertained, as incidental to the 
 consequential relief to be afterwards granted, 
 although it was nothing but the declaratory order 
 which was really important to the parties, and 
 as to all the inquiries and subsequent relief the 
 intervention of the Court was not wanted. As 
 the Chancery Commissioners observe " The rule 
 of the Court ma;king it impossible in such cases to 
 obtain a decision on the question really in dispute, 
 («) 3 Hare, 455. 
 
DECLARATORY DECREES AND ORDERS. 273 
 
 except in a suit embracing matters, as to which 
 no one desii"es the intervention of the Court, has 
 an obvious tendency to load the record with 
 unnecessary parties, and is a fruitful source of 
 expense. See Report, p. 20. 
 
 Such declaratory orders will of course not 
 bind the rights of absent parties but will be 
 binding only as between the parties named on the 
 record. How far the Court will go in making 
 such orders in the absence of other parties who 
 may be interested will depend on the construction 
 to be put on the 51st section. The same kind of 
 relief which is given by section 50 was given 
 by Vice Chancellor Turner's Act 13 & 14 Vict, 
 c. 35, through the machinery of special cases, 
 (see particularly sections 14 and 15 of that act), 
 but to those special cases every one having any 
 beneficial interest was required to be made a 
 party. 
 
 The Court always took care to see that the 
 special case was rightly constituted as to parties 
 before it was allowed to be set down. 
 
 The remedy is not now confined to those cases 
 in which all parties interested are willing to 
 concur in taking the opinion of the Court in a 
 particular mode, as it was under Sir George 
 Turner's Act, section 50 of the present act 
 applying also to adverse suits. 
 
 It would seem that the 50th section of the ceoUra- 
 New Procedure Act will only apply to those on"iymdr 
 
 T 
 
274. THE NEW CHANCERY PRACTICE. 
 
 where case cases, in which, before the Act, the Court could 
 
 under the have granted some kind of consequential relief, 
 
 ticer*"' founded on the right claimed. A bill can now 
 
 be sustained for the mere declaration of the 
 
 right, without seeking that consequential relief. 
 
 Not in suits But to 'd bill quia timet, bringing a defendant 
 
 adversely before the Court in respect of some 
 
 future or contingent claim, a demurrer would 
 
 still lie. 
 
 jaeismv. Thus, whcrc a lease containing joint "covenants 
 
 Turnlet/. ° 
 
 was granted to two partners, one of whom 
 died. 
 
 To a bill by his executors against the lessor, 
 alleging that the lessor claimed to have a right 
 under the covenant against the plaintiffs in 
 case a breach should arise, and praying merely a 
 declaration that the lessor had no such right; a 
 demurrer was allowed. Jackson v. Tumley. (a) 
 Nor in go where questions have been raised upon the 
 
 respect of _ ■ _ _ ^ ^ 
 
 fufure and construction of wiUs, by special case, under Sir 
 
 contingent ^^ ^n /^ 
 
 interests. G. TuHier's Act, the Court has refused to 
 Practice adjudicate respecting future and expectant in- 
 questi'on t^rests, the decision not being required for the 
 Teoiii'''' pu'^poses of the administration of the estate, 
 case. or as ancillary to any present relief to which 
 
 any of the parties might be entitled. 
 
 Thus, in Garlick v. Lawson (b), where a tes- 
 tator gave the interest and dividends of a moiety 
 
 (o) 1 Drewry, 617 ; S. C. 21 L. T. 216. 
 (S) 10 Hare, Appendix, p. xiv. 
 
DECLARATORY DECREES AND« ORDERS. 275 
 
 of his residuary estate to his daughter Jane 
 Garlick for her life, and the said moiety or 
 principal at her death to her lawful issue. One 
 question raised by the special case was, whether 
 the words "lawful issue" did not mean i^sue 
 living at her death. The Vice Chancellor Wood 
 declined to determine the class of issue who 
 would take on thqjr mother's death though all 
 the children of Jane Garlick, who was far 
 advanced in life, were parties. After observing 
 on the 14th section of Sir G. Turner's Act 
 13 & 14 Vict. c. 35, as not authorizing such a 
 prospective declaration, his Honor proceeded Gariukv. 
 thus : " Then came the late act, which said, that ' 
 
 a suit should not be open to objection, on the 
 ground that a merely declaratory decree or order 
 was sought. It enabled the Court in its dis- 
 cretion, where it should appfear to be necessary 
 for the administration of an estate, or to the 
 relief to which a plaintiff might be entitled, to 
 make a decree, notwithstanding it should be 
 merely declaratory. But this was^ not a case 
 in which it was necessary- to do so. See also 
 Greenwood v. Sutherland (a), where the Court 
 on Special Case declined to determine the rights 
 of unborn issue of legatees. 
 
 But in Fletcher v. Rogers (b), which was an inadminU- 
 administration suit prosecuted by bill, the Vice the Court 
 
 (a) 10 Hare, Appendix, p. xii. 
 (i) Ibid. p. xiii. 
 
 T 2 
 
276 THE NEW CHANCERY PKACTICE. 
 
 sometimes Chancellor Wood made a declaration of the rights 
 
 declaration of children taking expectant and future interests. 
 
 pcBtant and There the bequest was to the testator's brothers 
 
 terens."*" and sisters, to be equally divided amongst all 
 
 nft7^' ^°d ^^^^ °^ *^^"^' ^^ living at the time of his 
 
 decease, then amongst their surviving children. 
 
 The property being small, and all the brothers 
 
 and sisters of the testator, and all their children 
 
 who were then living, being parties to the suit, 
 
 the Court was pressed to make a declaration 
 
 with respect to the interests of the children. 
 
 The Vice Chancellor said he thought the statute 
 
 left it to the discretion of the Court, in what 
 
 cases a merely declaratory decree ought to be 
 
 made; and that this was a case in which the 
 
 Court might with propriety and convenience 
 
 make such a decree, (a) 
 
 Court more And whcrc the declaratory order has been 
 
 readily 
 
 determines sought with a vicw to a present dealing with 
 
 questions r^ ^ 
 
 where trust funds, the Court has even gone so far as to 
 
 sought make the declaratory order under the 50th section 
 
 to a pre- of the New Procedure Act, where according to 
 
 ingwilh' the view taken by the Court on the point of 
 
 perty™ construction, the parties applying for the order 
 
 proved to be persons who took no interest in the 
 
 fund in question. Thus, Tn re Walker's Trusts (b), 
 
 In general (.a) These cases seem to suggest, that where the decision 
 
 a bill pre- of the Court is sought on the construction of a will there 
 
 ferable to juay be advantage in general, since the late act, in pr'oceed- 
 
 casrunder ™g ^J ^^^ °^ ^^^"^ rather than by special case, under Sir 
 
 SirG. Tur- G-. Turner's Act. 
 
 tier's Act. (I) 16 Jur. 1154. 
 
DECLAEATOEY DECREES AND ORDEBS. ?77 
 
 on a petition under the Trustee Relief Act 10 
 & 11 Vict. c. 96, the Court, although it held 
 that the petitioners were not entitled, yet made 
 a declaratory order under the 50th section of the 
 New Procedure Act 15 & 16 Vict. c. 86, de- 
 claring who were the parties entitled to the fund, 
 and in what shares, and for payment accordingly, 
 on the petition bei©g amended by the addition of 
 a prayer to that effect. In this case the order- 
 was made on the authority oiLynn v. Beavan (a), 
 where Lord Eldon made a declaration of the 
 rights of the parties, though he dismissed the 
 bill. 
 
 To enable the Court to adjudicate on the con- Some of 
 struction of a will by a declaratory order under interested 
 the 50th section of the New Procedure Act, the view of the 
 suit must be properly constituted as to parties, must'b" 
 by bringing before the Court some at least of the court.' * 
 parties interested in each view of the particular 
 question, but if the Court is satisfied that- any 
 absent parties have no reasonable ground of 
 claim, it will decide the question in their absence, 
 and will not require that they should be made 
 parties to the suit, for the purpose of declaring 
 who are the persons entitled. Doody v. Sig- 
 gins. (b) The Court here follows the rule as 
 laid down in Burnett v. Foster, (c) 
 
 (a) T. & E. 70. 
 
 (J) 9 Hare, Appendix, p. ixxii. 
 
 (c) 7 Beav. 540. 
 
278 THE NEW CHANCERY PEACTICE. 
 
 Where a question was raised by special case on 
 a settlement, whether the objeistfe were children 
 living at the death of the tenant for life, the 
 settlor, or were children who might attain the 
 age of twenty-one or marry, and some of the 
 children had attained twenty-one, and died before 
 the tenant for life, and it being suggested that 
 the Court might determine the question in the 
 presence of some only of the parties, under the 
 51st section of the New Procedure Act, the Vice 
 Chancellor Turner said, " that is in cases, where 
 Swallow y. ^^^ h&ve some of the parties interested in the 
 Bmns. question in every point of view. In this case the 
 question is between the surviving children and 
 the representatives of deceased children, but you 
 have no party representing the interests of the 
 deceased children. If you produce satisfactory 
 evidence that the father survived the deceased 
 children, (in which case he would be their next 
 of kin) and also that the children died intestate, 
 the Court may then under the 44th section of 
 the act 15 & 16 Vict. c. 86, appoint the executors 
 of the father to represent the deceased children 
 for the purposes of this case. Swallow v. Binns.(a) 
 Decision Although, however, the 51st section of the 
 on'abstr New Procedure Act empowers the Court to ad- 
 parties. judicate on questions between some only of the 
 parties, it does not render the decision binding 
 
 (a) 9 Hare, Appendix, p. xlvii. 
 
DECLARATORY DECREES AND ORDERS. 279 
 
 on the absent parties, as the 42nd section of the 
 same statute does, when notice of the decree has 
 been served under the 8th Rule. Doody v. 
 Higgins. (a) 
 
 Under the provisions of the late act, the Court Couft w'H 
 
 *■ now carry 
 
 will make a declaratory order for the manage- into effect 
 
 ■' an arrange- 
 
 ment of part of a testator's property, or even, as ment as to 
 
 part of a 
 
 it seems, for carrying into eflFect a compromise testator's 
 
 „ -. • , . , property 
 
 ot a dispute as to part of the property, without without 
 administering the whole testamentary estate. tering the 
 
 Thus in a case of Prentice v. Prentice (b), the estate. 
 Vice Chancellor Wood made a declaratory decree 
 for the purpose of carrying into eflFect an arrange- 
 ment as to part of the estate of a testator, with- 
 out administering the estate, and without ex- 
 ecuting the trusts of the will generally, under 
 the following circumstances. Thomas Prentice, J^rentuev. 
 
 " . Prentice. 
 
 the testator, was in partnership with his son 
 Manning Prentice. The testator died seised in 
 fee of certain premises as trustee for the partner- 
 ship. He had also entered into a contract for 
 the purchase of certain malting premises for the 
 partnership, but the deed of conveyance, though 
 executed, was still in the hands of the vendors, 
 the purchase money not having been paid. The 
 executors, the testator's widow, and Manning 
 Prentice, the son, by their bill stated an arrange- 
 ment which had been come to, for the sale of the 
 
 (a) 9 Hare, Appendix, p. xxxii. 
 (i) 10 Hare, Appendix, p. xxii. 
 
280 THE NEW CHANCERY PRACTICE. 
 
 messuages and premises belonging to the partner- 
 ship, to the plaintiff Manning Prentice, the son 
 of the testator, and the surviving partner of the 
 firm; and the bill prayed that the heir at law 
 of the testator, on whonii the legal estate had 
 descended, might be declared to be a trustee of the 
 premises for the partnership ; and that the plain- 
 tiffs might be at liberty to carry into effect the 
 said arrangement; and that the heir at law might 
 be ordered to join and concur in conveying the 
 premises to the plaintiff Manning Prentice, upon 
 the said plaintiff paying, or accounting to the 
 plaintiffs, for the purposes of the testator's estate, 
 for two-third parts or shares of the valuation of 
 such premises. 
 
 The Vice Chancellor Turner considered the 
 case to be one, in which a decree might under 
 the statute be made on the subject of the suit, 
 without further executing the trust, and his 
 Honor made an order accordingly, except that 
 the order did not direct the heir at law to join in 
 the conveyance. 
 
 The reason of the Court declining to make an 
 order against the heir at Jaw does not appear, as 
 the heir, it must be presumed, was a party to the 
 suit. Perhaps looking to the course taken by the 
 Court in this case, there may be ground to doubt 
 whether the section will apply to any other than 
 mere declaratory decrees or orders. Looking to 
 the section of the act which immediately precedes 
 
DECLARATORY DECREES AND ORDERS. 281 
 
 it, as well as to that part of the Chancery Com- 
 missioners' Reports, pp. 19, 20, on which both the 
 50th and 51st sections are founded, we may 
 perhaps see ground to conclude that this is all 
 which was intended. Supposing, however, the 
 section to have a more extended construction, 
 and to apply to any kind of administrative relief; 
 as for example, to a decree for distribution of a 
 fund or payment of a single distributive share, 
 there would seem to be no doubt, that all the 
 parties interested in the particular fund or spe- 
 icific portion of the property which gives rise to 
 the question to be adjudicated upon, or one at 
 least of each class of such cestuis que trust, must 
 still be parties to the suit, though not of course, 
 in all cases, all who are interested, or even one 
 individual member of each class interested in the 
 whole property comprised in the particular settle- 
 ment, will, or other instrument under which the 
 question arises. 
 
 Suppose, for example, a bequest of a legacy to 
 the children of A. when they shall attain twenty- 
 five, and a general residuary bequest by the same 
 wiU to B. For the purpose of a mere declaratory 
 decree or order, adjudicating on the question of 
 construction which arises, viz., whether, looking 
 to the general provisions of the will, this gift is 
 void or not for remoteness, it is presumed that 
 the suit would be rightly constituted with any 
 one of the children of A. sole plaintiflT, and B. 
 the sole defendant; but if payment of that child's 
 
282. THE NEW CHANCERY PRACTICE. 
 
 share were asked by the. bill or claim, then it is 
 . conceived that B . , the residuary legatee, and all the 
 other children of A, as well as the executor must 
 be made parties to the suit. The doctrine of Perry 
 V. Knott {a), was not approved by Lord Cotten- 
 ham in Lenaghan v. Smith (6), and there appears 
 to be nothing in this act to «ilt^r the rule as laid 
 dpwn in the case last referred to, at all events 
 where* it is possible that the whole fund may not 
 be forthcoming. 
 
 It is clear, however, that the Court would now, 
 whether by means of a declaratory or an admi- 
 nistrative decree, adjudicate upon the rights of 
 the parties interested in the particular legacy or 
 fund in question, without a general administra- 
 tion decree, and without first taking a general 
 account. 
 
 The suggestion at the end of the section, that 
 the application may be fraudulent, might perhaps 
 seem to imply that something more is contem- 
 plated than a mere declaratory order. 
 
 A case like the following might occur: the 
 
 executor might coUusively join with a legatee in 
 
 . getting an order made for payment of the legacy, 
 
 it being known that the estate was insolvent^, and 
 
 the object being to defeat creditors. 
 
 Supposing such a case to be within the section 
 at all, which it probably is not, it is clear that 
 upon the fraud being brought to the notice of 
 
 (a) 6 Beav. 293. 
 (J) 2 Phil. 301. 
 
DECLARATORY DECREES AND ORDERS. 283 
 
 the Court, whether by the intervention of a 
 creditor at the hearing, or otherwise, the Court 
 would refuse to make the order. 
 
 Whether the Court would or would not, under 
 the provisions of the 51st section, direct an actual 
 payment or transfer of any legacy or portion of 
 the trust property comprised in a testator's will, 
 without first taking the general accounts of the 
 testamentary estate, it is apprehended to be 
 beyond doubt that the Court would in no case 
 make such an order, unless from the state of the 
 assets and the situation and interests of the 
 various. ce.s^m's que trusty it were reasonably clear 
 that it could be done without prejudice to the 
 interests of creditors or of any of the persons 
 beneficially interested under the trusts, of the 
 will, and the Court would of course in no case 
 direct payment of a share of a residue without the 
 accounts being first taken and the estate cleared 
 from debts. Much of the reasoning in Say v. 
 Creed would, therefore, still apply. Even the 
 sanctioning of a compromise with respect to 
 a portion of the property, as was done in the 
 above case of Prentice v. Prentice, might be open 
 to some of the like observations, inasmuch as the 
 interests of residuary legatees or other absent par- 
 ties might be affected. The safest construction of 
 the 51st section would be to confine it to merely 
 declaratory orders in the strictest sense of the 
 term, the Court givir% no consequential direc- 
 
284 , THE NEW CHANCERY PRACTICE. 
 
 tions of any kind, except as to the costs of the 
 suit, which it is the practice in such cases to 
 declare a charge on the property. 
 
 The Court has indeed even gone so far as to 
 direct a mortgage or sale of the testator's property 
 in such cases for raising these costs See Man- 
 deno V. Mandeno, stated infra. 
 Mandenov. In Mundeno V. Mandeno, the object of the 
 suit was to obtain a declaration from the Court 
 as to the construction of a specific devise of real 
 estate, which was accordingly made. The only 
 point in the case was with respect to the mode in 
 which the costs of the suit were to be provided 
 for, the interest of the devisees being of small 
 value, and there being no personal estate. 
 
 It was proposed that the costs should be raised 
 by a sale or mortgage of the devised estate, and 
 in support of this proposition the case of Adams 
 V. Adams (a), was mentioned to the Court, 
 as being a case in which it appeared by the 
 registrar's book, that the same course had been 
 taken. 
 
 Counsel also referred to the case of Field v. 
 Brown, lately decided by the Lords Justices, 
 in which, though no costs were actually raised, 
 the principle acted on in Adams v. Adams had 
 been fully recognised. 
 
 The Vice Chancellor Wood considered that the 
 
 (o) 1 Hare, 536, reported ifliere ou another point. 
 
DECLAEATORY DECEEES AND OEDEES. 285 
 
 costs were necessarily incurred, and, as no person 
 could take any benefit until all the purposes of 
 the trust had been fulfilled, they must be treated 
 as a charge upon the estate. He should accord- 
 ingly follow the authority of the case referred to, 
 and, after a declaration as to the construction of 
 the will, he should direct the costs to be taxed, 
 and the amount to be raised by sale or mortgage. 
 The decree would be worked out in chambers; 
 and one reason, perhaps, for preferring a mort- 
 gage to a sale was, that it was always a matter 
 of difficulty to raise a precise and ascertained 
 sum by sale, so as to avoid there being a surplus 
 over and above the amount required. 
 
 In a case in which the trustees of the Birken- case of the 
 head Docks were plaintiflfe, and the Birkenhead head Dock 
 Dock Company were defendants, both these ""P""'" 
 companies having obtained powers from the 
 Legislature to make docks at Birkenhead, a 
 question arose upon the construction of the acts 
 of Parliament respectively obtained by the two 
 bodies. A party who claimed under a lease 
 from the defendants having commenced to make 
 openings in the sea wall, without the consent of 
 the plaintiffs, the trustees of the Birkenhead 
 Docks filed their bill to restrain him, the object 
 apparently "being to obtain the opinion of the 
 Court, in reference to the powers conferred on 
 the two companies by their respective acts of 
 Parliament. The Master of the Rolls on a 
 
286 THE NEW CHANCERY PRACTICE. 
 
 motion for a decree, decided in favour of the 
 plaintiffs, and made a decree declaring that the 
 defendant was not entitled to make openings, 
 without the sanction of the plaintiffs. The 
 Birkenhead Dock Company moved to set aside 
 or vary this decree. 
 
 A point of practice was raised in the course of 
 the argument^ whether the Court could under 
 the provisions of the act 15 & 16 Vict. c. 86, 
 determine a mere question of law, such question 
 not being necessary to be decided, previously to 
 the decision of an equitable question, but solely 
 for the purpose of a declaratory decree, not 
 followed by consequential relief. Their Lordships 
 suggested that there might be considerable doubt 
 on the point, and to avoid the difficulty arising in 
 the case before them, the defendants consented to 
 admit, for the purpose of the argument, that 
 their lessee was acting in a manner contrary to 
 the terms of the act. The effect of this admission 
 would be to entitle the plaintiffs to consequential 
 relief, in the shape of an injunction, if the Lords 
 Justices agreed with the view of the act taken 
 by the Master of the KoUs, the substantial ques- 
 tion between the parties, however, being, not so 
 much the granting of the injunction, which was 
 in itself not of much moment to either party, 
 but the decision of the Court upon the right. 
 
 The Lord Justice Knight Bruce, in the course 
 of the argument said : " Speaking for myself, I 
 
DECLABATOEY DECEEES AND OEDERS. 287 
 
 entertain great doubt, even if the plaintiffs' con- 
 struction of the act of Parliament be right, 
 whether this is a case for making a declaration of 
 right under the recent act. Suppose such a case 
 as this, a contest of title to large landed estates, 
 and no question but a legal question; there is- 
 timber on the estate,, and a bill filed by one of 
 the claimants to prevent the cutting of this 
 timber, does this give the Court jurisdiction, 
 under the new act, to decide on the title to the 
 real estate? If that is to be answered in the 
 negative, the question is, how does such a case 
 differ from the present?" 
 
 The Lord Justice Tui-ner said, that he had 
 during the whole case felt the same difficulty. 
 
 On a subsequent day, in giving judgment on 
 the case, the Lord Justice Turner said, "that 
 very serious doubts might be entertained whether 
 the declaration ought to have been made; the 
 form of the decree would, therefore, be altered, 
 and an injunction granted in terms of the prayer 
 of the bill to prevent the defendants doing their 
 works, except under and in conformity to the 
 provisions of the Walling Act, and of the local 
 actof 10& 11 Vict. c. 265." 
 
 It will be observed, that in this case the Court 
 declined making any declaratory order on the 
 construction of the companies' acts and the rights 
 of the respective parties, excejJt as incidental to 
 the granting of the injunction, without, however. 
 
288 THE N£W CHANCERY PRACTICE. 
 
 expressly deciding that such a declaratory order 
 
 coiild not be made, otherwise than as ancillary 
 
 to some kind of equitable relief. 
 
 Court of It may be observed here' as incidental to the 
 
 to send a doubt throwH out in the Birkenhead Dock case, 
 
 opinion of • that it is cxprcssly provided by the 61st section of 
 
 of law. the New Procedure Act 15 & 16 Vict. c. 86, that 
 
 it shall not be lawful for the Court of Chancery 
 
 in any cause or matter to direct a case to be 
 
 stated for the opinion of any Court of common 
 
 law, but the Court of Chancery is to have full 
 
 power to determine any questions of law which 
 
 in its judgment shall be necessary to be decided 
 
 preinously to the decision of the equitable question 
 
 May deter- at iggue between the parties. And by the 62nd 
 
 mine legal '■ - *' 
 
 right with section of the New Procedure Act 16 & 16 Vict. 
 
 a view to 
 
 granting c. 86, it is also provided that in cases where 
 
 equitable 
 
 relief. accordiug to the present practice, the Court of 
 Chancery declines to grant equitable relief until 
 the legal title or right of the party or parties 
 seeking such relief shall have been established in 
 a proceeding at law, the Court may itself deter- 
 mine such title or right without requiring the 
 parties to proceed at law to establish the same. 
 
 These sections both appear to point to some 
 kind of consequential equitable relief as incident 
 to the decision of the legal questions. 
 
 It may be remarked in this place, though not 
 directly relevant to the subject of this section, 
 that it is not to be inferred from the 6Ist. section 
 
DECLARATORY DECREES AND ORDERS. 289 
 
 of the N'ew Procedure- Act, that the Court will 
 send no question whatever to be tried at law. 
 Questions of pedigree, legitimacy, devisavit vel 
 npn, and the like, will no doubt still be left for 
 the .decision of a Court of law, assisted by a 
 jury. The section refers only to those cases 
 where it is a question of mere law, and not a 
 mixed question of law and fact. See particu- 
 larly as to the issue devisavit vel non, cases of 
 fraud, and the like, the evidence of the late Lord 
 Chancellor. Chaiicery Eeport, p. 11. 
 
 The case of Sanderson v. Dobson (a), affords 
 an example of the inconvenience and mischievous 
 consequences of the former practice in sending 
 cases on the mere construction of instruments to 
 be decided by the common law" Courts. There 
 the only question was whether real estate passed 
 under certain general words in a will following 
 an enumeration of specific chattels. A case was 
 sent to the Court of Exchequer, afterwards 
 another case to the Court of Common Pleas, and 
 those Courts not agreeing, a third case to the 
 Court of Queen's Bench. The property being of 
 small value, it was more than half exhausted by 
 this litigation, and the case was at last com- 
 promised. 
 
 Numerous cases of the kind will readily occur 
 to every practitioner. The Court will now dis- 
 
 (a) Eeported 10 Beav. 478. 
 U 
 
290 THE NEW CHANCERY PRACTICE. 
 
 pose at once of these cases, and where there is 
 more than ordinary difficulty, it may call in the 
 aid of any of the 'Common Law Judges under 
 section B of the Court of Appeal in Chancery 
 Act 14&15 Vict. c. 83. 
 
 In such a case as an issue devisavit vel non, the 
 late Lord Chancellor, on his examination before 
 the Chancery Commission, expressed the opinion, 
 that no decision could be satisfactory without a 
 jury. 
 
 With reference to the provisions of the 62nd 
 section, in cases of patent, copyright, or the like, 
 the Court generally refused to interfere by injunc- 
 tion until the plain tiflP's title had been established 
 at law. 
 
 This became so invariably the course of the 
 Court upon all applications for an injunction, 
 that Lord Tottenham once suggested the prudence 
 of commencing the proceedings in all cases by 
 an action in the Court of law, before the bill in 
 equity was put upon the file. 
 
 The Court may now itself determine the legal 
 
 title for the purpose of the equitable relief sought. 
 
 Where Under the former practice the Court would 
 
 cases for- n i • i 
 
 meriy sent always Send the question to law if the case from 
 its difficulty or importance was such as to require 
 it. The case of The Manchester, Sheffield, and 
 Lincolnshire Railway Company v. The Great North- 
 em Railway Company (a), was a case of that kind. 
 (a) 9 Hare, 284. 
 
DECLARATORY DECREES AND ORDERS. 291 
 
 There a railway company having acquired a legal 
 right to and possession of land, and constructed 
 their railway over the same, under the provisions 
 of their act, another railway company to whom 
 the Legislature had given power to purchase 
 the same land for the purpose of their under- 
 taking, was restrained by injunction from exer- 
 cising such power, pending the trial of the legal 
 question of the effect of such conflicting powers. 
 
 The Vice Chancellor Turner, before whom the 
 question arose in giving judgment on the motion 
 for the injunction, made these observations. " It 
 has hardly been denied in the argument of this 
 case, that where a railway company is about to 
 take lands not authorized to be taken under the 
 summary powers given to them by the Legisla- 
 ture, the case is a proper one for the interference 
 of this Court by injunction. It has been said, 
 however, that the injunction asked for by this 
 motion, ought not to be granted on several 
 grounds. As to the first point, that the plaintiiFs 
 have taken their powers subject to the previously 
 acquired right of the defendants, the question is 
 purely legal. It is a question of great import- 
 ance to the parties, and not free from difficulty ; 
 the question too is drawn into equity only by 
 the necessity of interference to preserve the legal 
 right, and it is a case on which I do not hesitate 
 to desire the opinion of a Court of law, more 
 especially as what has happened here may have 
 
 u 2 
 
292 THE NEW CHANCERY PRACTICE. 
 
 happened in other cases. The rights of other 
 parties may be affected by the decision, and the 
 case appears to involve a general question of law 
 of no little consequence, viz., what is the effect 
 of two acts of Parliament relating to a special 
 subject, and conferring the same right on dif- 
 ferent parties?" 
 
 The last observation of the learned Judge 
 referred to a provision in the respective com- 
 panies' Acts, conferring on the two different' 
 companies the right of purchasing according to 
 the provisions of the Lands Clauses Consolidation 
 Act the same identical plot of ground. 
 Former In the casB oi Folkner v. Grace (a), some useful 
 
 practice as , 
 
 to sending observatious were made by the Vice Chancellor 
 
 the opinion Tumcr with reference to the class of questions on 
 
 of law. which it would have been proper for the Court of 
 
 Chancery under the old practice to send cases for 
 
 the opinion of Courts of common law, or to seek 
 
 the assistance of the Judge of such Courts, by 
 
 virtue of the statutes 13 & 14 Vict. c. 35, s. 14, 
 
 and 14 & 15 Vict. c. 83, s. 8, or otherwise, and 
 
 the same rules would probably, in some measure, 
 
 guide the discretion of the Court as to the course 
 
 to be taken in such cases under the present- 
 
 practice. In the case above referred to his 
 
 Faiiiner v^ Houor said : " This does not appear to me to be 
 
 a case which this Court should send for the 
 
 (a) 9 Hare, 280. 
 
BECLAEATOBY DECREES AND ORDERS. 293 
 
 opinion of a Court of law. In my opinion it is 
 desirable for this Court to avoid, as far as 
 possible, sending cases for the opinion of another 
 Court. I think the aid of a Court of law, or the 
 assistance of the Judges of that Court, may be 
 properly resorted to in cases where the question 
 is one of importance to the general law of the 
 country, or where the decision may have an 
 extensive operation in a public point of view; 
 but my opinion is, that this Court ought not to 
 require the assistance of another Court on ques- 
 tions which turn merely on the construction of 
 particular instruments." 
 
 The practice is now, since the late act, in cases Practice 
 of difficulty and importance, for the Court of obtain 
 equity to avail itself of the assistance of one of of common 
 the common law Judges, instead of sending the *" " ^^' 
 question for the decision of a Court of common 
 law. 
 
 When it is desired that the Court should have Mode of 
 the assistance of one of the Judges of the Courts of attendant 
 common law, under the statute 14'& 15 Vict. c. 83, "awXdg". 
 s. 8, which enables either the Master of the Rolls, 
 or any of the Vice Chancellors, " to sit with the 
 assistance of any Judge of either of her Majesty's 
 Cpurts of common law at Westminster, upon the 
 request of the Lord Chancellor, if any such 
 common law Judge shall find it convenient to 
 attend upon such request," it is not necessary 
 that an application should be made by counsel 
 
294 THE NEW CHANCERY PRACTICE. 
 
 before the Lord Chancellor for the purpose, but 
 
 the Master of the Rolls or Vice Chancellor, before 
 
 whom the case may be, himself writes to the 
 
 Lord Chancellor, to ask his Lordship to request 
 
 the attendance of one of the learned Judges. 
 
 Hay V. WUloughby. (a) 
 
 Leave It has been frequently decided that the Court 
 
 f prLer will Still in a proper case give leave to bring an 
 
 ever to action at law, notwithstaiiding the provisions of 
 
 tionf'"'' the 61st and 62nd sections of the act. 
 
 Thus, where a question arose in an adminis- 
 tration suit as to the liability of the testator's 
 estate, for a breach of the covenants in a lease, 
 and as to the amount of the damages (if any), 
 and the Master had disallowed the claim of the 
 creditor, the representative of the lessor, and the 
 creditor had excepted to his report; the Vice 
 vigurs V. Chancellor Kindersley said, " unquestionably if 
 it were a matter clear and beyond all reasonable 
 doubt, it would be the duty of the Court at once 
 to administer the estate, without giving the cre- 
 ditor the right' of trying it at law. If the legal 
 right were clear, it would be the duty of the 
 Court to allow the expenses and give the amount 
 claimed." His Honor, after observing that he 
 felt great doubt and difficulty both on the ques- 
 tion whether there was a legal right, and also on 
 the question what was the amount of the damage 
 
 {a) 9 Hare, Appendix, p. xxx. 
 
 Vigmt, 
 
DECLARATORY DECREES AND ORDERS. 295 
 
 (if any), gave leave to bring an action; and 
 upon the terms of the action being imme- 
 diately brought, and the plaintiff dealing with 
 the verdict as the Court should direct, he ordered 
 the exceptions to stand over in the meantime. 
 Vigurs v. Vigurs. (a) 
 
 So in Penney v. Goode (6), which was a suit Penney v. 
 to recover the amount of a policy of insurance 
 effected in the Westminster Fire Office, the Vice 
 Chancellor Kindersley directed the cause to stand 
 over, with liberty to bring an action, the verdict 
 to be dealt with by the Court, and execution not 
 to issue without leave of the Court. 
 
 The question was one of amount. The de- 
 -fendants undertook to admit, for the purposes of 
 the action, that they had entered into a valid and 
 binding contract with the plaintiff. 
 
 The 61st section of the New Chancery Pro- Provision 
 cedure Act 15 & 16 Vict. c. 86, which deprives t^Tng 
 the Court of Chancery of the power of sending- court "f 
 cases for the opinion of Courts of law, has not a retrospec- 
 retrospective effect so as to prevent the argument *"'^' 
 in a Court of law of a case sent before the act 
 came into operation. Hobson v. Neale (c). 
 
 A doubt was thrown out in that case whether whether 
 the enactment prohibiting the sending of cases to sion appiVes 
 law, applied where the rights of the Crown were rights of 
 concerned, but the point was not decided. conrarnrd, 
 
 {a) 16 Jur. 1009. '"""' 
 
 (J) Not reported, 21at November 1853. 
 (c) 16 Jut. 1023. 
 
296 THE NEW CHANCERY PBACTICJ:. 
 
 Section 2. 
 
 As to forms of decrees and orders generally 
 under the new practice, not to recite previous 
 proceedings^ to provide for payment of the 
 legacy duty, Accountant General to continue 
 investment and accumidation of dividends from 
 time to time without fresh order, where account 
 of legacies directed interest to he computed 
 without order, amendment of dfecree or order, 
 practice on enrolling decree^ 
 
 Some changes have been made by the late act 
 
 and General Orders with respect to the mode of 
 
 drawing up decrees and orders and as to the 
 
 usual directions to be inserted in decrees and 
 
 orders which it may be convenient to state 
 
 here. 
 
 Decrees By the General Order of Court of the 12th day 
 
 not to con- of April 1853, it is provided, that notwithstanding 
 
 of previous the 27th of the General Orders of the 21st of 
 
 rags.*"^ December 1833, it shall not hereafter be necessary 
 
 for the registrar in drawing up any decree or 
 
 order to recite any previous decree or order in 
 
DECLARATORY DECREES AND ORDERS. 297 
 
 the cause or matter, or any report, certificate, 
 affidavit, Or other document that has been (or 
 before the decree or order is completed shall be) 
 filed or recorded in the Court, but it shall be 
 sufficient to refer thereto; save only in matters of 
 contempt, or where the order varies from some 
 general rule, and in such other cases as the Court 
 shall direct or the registrar shall in his discretion 
 see fit, the registrar shall make such short recitals 
 as may be necessary to show the grounds on 
 which the decree or order is granted. 
 
 By the General Order of the 31st day of Decrees 
 
 T -< r> r n 1 • • T • ^""^ orders 
 
 January 1853, the registrar m drawmg up any to provide 
 decree or order, whereby the Accountant General payment of 
 shall be directed to pay or transfer any fund, or duty.*^*°^ 
 part of any fund, in respect of which any duty 
 shall be payable to the revenue under the acts 
 relating to legacy duty shall, unles^ such decree 
 or order expressly provide for the payment of 
 the said duty, direct the Accountant General to 
 have regard to the circumstance that the legacy 
 duty is payable. And the Accountant General 
 before executing any decree or order directing 
 the payment or transfer of any fund, or part of 
 any fund, in respect of which any such duty 
 shall be payable, shall require the production of 
 the official receipt for the duty, or a certificate » 
 from the proper officer of the payment of the 
 duty chargeable in respect of any such funds 
 or any portion thereof respectively hy any such 
 decree or order directed to be paid or transferred. 
 
298 THE NEW CHANCERY PRACTICE. 
 
 Account- The General Order of Court of the 3rd day of 
 
 antGeneral -i , . ii • i_- i 
 
 to continue Juue 1853, provides that in all cases m which 
 andaccu- any Order shall he made directing investment 
 ofdivi- from time to time of any interest or dividends, 
 time to™™ the Accountant General is from time to time, until 
 o™\"sh he shall receive notice of an order to the con- 
 °'' "' trary, without any further request, to invest the 
 interest and dividends so directed to be invested, 
 together with all accumulations of interest and 
 dividends thereon, as soon as conveniently may 
 be after they shall accrue due and have been 
 received, in the purchase of the particular descrip- 
 tion of stock or security named in such order, and 
 to place such stocks or securities, when purchased^ 
 to the credit of the cause, nsatter, or account 
 respectively, as may be directed by such order. 
 Where Bv the 11th General Order of Court of the 
 
 account of 
 
 legacies 16th day of October 1852, where an order is 
 
 directed , , , . 
 
 interest to made directing an account of legacies, unless 
 putedwith- Otherwise ordered, interest is to be computed on 
 such legacies after the rate of four per cent, per, 
 annum from the end of one year after the de- 
 ceased's death, unless any other time of payment 
 or rate of interest is directed by the will, and in 
 that case according to the will. 
 
 After an order had been made to pay an 
 
 allowance for an infant's maintenance to three 
 
 executors, one of the executors went out of the 
 
 jurisdiction. 
 
 ment of Upon a motiou to amend the order, by directing - 
 
 ord^r"' payment to any two of the threap executors, the 
 
DECLAEATOEY DECREES AND ORDERS. 299 
 
 Vice Chancellor Turner doubted whether, as the 
 matter had arisen subsequently to the date of the 
 order, any amendment could now be made except 
 by supplemental order ; but after consulting the 
 registrar, he directed the amendment to be made 
 in the original order. Windsor v. Cross, (a) 
 
 Where a decree has been reversed upon appeal, Practice 
 and more than six months have elapsed since the ling decree, 
 same was pronounced, the motion to enrol the 
 decree should be made in that branch of the 
 Cpurt to which the cause is attached, and not in 
 the appellate Court. Webb v. The Direct London 
 and Portsmouth Bailway Company (a) ; and see 
 2nd and 3rd General Orders of the 7th of August 
 •1852. 
 
 {a) 16 Jtir. 1008. 
 
 la) 10 Hare, Appendix, p. xvi. 
 
300 THE NEW CHANCEKY PBACTICE. 
 
 CHAPTER VIII. 
 
 ON FORECLOSURE SUITS. 
 
 Court may now direct sale instead of foreclosure, 
 and without determining priorities, party clearly 
 entitled not to be embarrassed by litigated questions 
 between other parties, sale not directed except 
 under special circumstances, not the uniform prac- 
 tice under the old-system to give successive incum- 
 brancers successive periods to redeem, sale not 
 directed after ""decree for foreclosure made under 
 the old practice, sale not directed on interlocutory 
 application but only at the hearing, usual order 
 in equitable mortgagee's suit, where sale not di- 
 rected against remaindermen in respect of charge 
 created by tenant for life, foreclosure not granted 
 under prayer for sale, semble, necessity in general 
 for prayer for specific relief sought, arrears of 
 interest not a charge on the land beyond six 
 years, mortgagee may tack arrears of interest 
 for twenty years in suit against the heir under 
 
FORECLOSURE SUITS. 301 
 
 mortgagor's covenant, equitable mortgage by de- 
 posit of title deeds, where no written memorandum 
 of deposit, when mortgagor bound by foreclosure 
 decree notwithstanding absence of necessary party, 
 plaintiff in foreclosure suit should iitquire of 
 subsequent incumbrancers whether they claim, 
 costs where this is not done. 
 
 By the 48th section of the New Procedure Act Coun may 
 15 & 16 Vict. c. 86, in any suit for the fore- instead of 
 
 "" I ore closure 
 
 closure of the equity of redemption in any and without 
 mortgaged property, upon the request of the inVpriori- 
 mortgagee, or of any subsequent incumbrancer, 
 or of the mortgagor, or any person claiming 
 under them respectively, the Court may direct a 
 sale of such property, instead of a foreclosure of 
 such equity of redemption, on such, terms as the 
 Court may think fit to direct, and without pre- 
 viously determining the priorities of incum- 
 brances, or giving the usual or any time to 
 redeem. 
 
 It is conceived that this section will not dis- 
 pense with making subsequent incumbrancers 
 parties to the suit. The first mortgagee in those 
 cases in which he wiU be held entitled to a sale, 
 and not merely to a foreclosure, is not now to 
 wait to have his debt so realized, until the 
 equities of aU subsequent incumbrancers are 
 adjusted, but upon its being admitted or proved 
 that he stands first, he may now at once have 
 
302 THE NEW CHANCERY PRACTICE. 
 
 the property sold; or if he is a subsequent 
 incumbrancer, he may obtain the same order 
 upon first making such deposit in Court as the> 
 section requires. The proceeds of the sale would 
 probably then be paid into Court, to the account 
 of the several incumbrancers, or to some such 
 account, and upon the cause coming on for 
 further directions upon the chief clerk's report, 
 or upon a petition, supposing the order for sale to 
 have been made on an interlocutory application, 
 (as to which see infra on the construction of the 
 48th section), the mortgagee applying for the sale, 
 assuming him to stand first, would be paid his 
 debt, interest, and costs, without regard to the 
 equitable priorities of the other incumbrancers. 
 Party The poHcy of this section seems to be similar 
 
 pi a a fly 
 
 entitled to that of the -Slst, viz., that where there is a 
 embar- party clcarly entitled, he should not be embar- 
 
 rflSSGQ DV 
 
 litigated rasscd by any litigated question between other 
 between' parties, but he should at once be paid, any one 
 ot^CTpar- jjg^^ing a subsequent lien being at liberty to 
 
 apply as to the balance of the fund remaining in 
 
 Court. 
 Sale not According to Hioms v. Holtom (a), a sale will 
 
 except not in general be ordered under the 48th sec- 
 speciai tion of the Ncw Procedure Act 15 & 16 Vict. 
 st"nc"s' c. 86, unless there is such a complication, that 
 ff'/Tm^' *'^^ common decree cannot be conveniently 
 
 (o) 16 Jur. 1077. 
 
FORECLOSURE SUITS. 303 
 
 worked. In that case the Master of the Rolls 
 refused to order a sale, except with the consent 
 of all parties, though there were three successive 
 mortgages, and there appeared to be no doubt 
 that the estate was encumbered beyond its 
 value. 
 
 The same view of the construction of the 48th Roberts v. 
 
 Price, 
 
 section of the New Procedure Act 15 & 16 Vict. 
 c. 86, was taken by the Vice Chancellor Wood in 
 Roberts v. Price (a), where he held that although 
 the 48th section of the statute 15 & 16 Vict, 
 c, 86 gives the Court power to direct a sale or 
 foreclosure, it will not depart from the ordinary 
 practice, and direct a sale instead of a fore- 
 closure, unless a case is made out for such a 
 course. In that case the plaintiff was the 
 transferee of a mortgage, and the claim prayed 
 a sale of the mortgaged estate and the ordinary 
 directions. The affidavits filed proved the exe- 
 cution of the deed, and that the mortgage money 
 still remained due. 
 
 The Vice Chancellor Wood, in giving judg- 
 ment on the claim, said, " Although the statute 
 enables the Court to direct a sale or foreclosure, 
 it is necessary to make out a case for departing 
 from the ordinary course. The plaintiff here has 
 made no such case, and he cannot-without the 
 consent of the mortgagor, have such an order. 
 
 (fl) 21 L. T. 209. 
 
Hurst. 
 
 W4 THE NEW CHANCKET PBACTICB. 
 
 All be can have, is the common decree for fore- 
 closure." 
 ffursiy. So in Hurst v. Hurst (a), where the same 
 
 point arose, the Master of the Rolls in giving 
 judgment, said, " I apprehend the 15 & 16 
 Vict. c. 86, section 48, was intended to enable 
 the Court to direct the sale of an estate, when 
 in its discretion it should think fit, and that 
 it was intended to avoid the great expense occa- 
 sioned by a great number of successive mortgagees 
 having to foreclose and redeem one another. 
 The ' Court under the direction given by that 
 section, will exei'cise that power in a manner not 
 to operate injuriously or oppressively to any- 
 body. If, therefore, a sale of these estates could 
 take place, as beneficially and as profitably to 
 the parties interested, as by allowing the rents 
 to be received, I should think it proper, subject 
 to that discretion, to exercise the powers con- 
 tained in the 15 & 16 Vict. c. 86, but even then 
 I should give the parties leave to bring before 
 me any matters which might vary jny opinion as 
 the suit was at issue before the act came into ope- 
 ration. As I read the clause the power given to 
 the Court to direct a sale is at the instance of the 
 first mortgagee, if the Court should think fit, or 
 at the instance of a second or any puisne incum- 
 brancer, with the consent of the prior incum- 
 
 (a) 22 L, J. (w. 8.) 546. 
 
FORECLOSURE SUITS. 305 
 
 brancer, or, if they do not consent, on ordering 
 such sum of money to be paid into Court, as the 
 Court may think fit, and which may be necessary 
 to protect them. Assuming this to be a case to 
 direct a sale, I think if the second mortgagees . 
 consented, and the third mortgagees paid into 
 Court the amount due to the first mortgagees, 
 they would be perfectly safe, as they would have 
 the proceeds of the sale of the estate, and also 
 the money paid into Court for the amount of the 
 mortgage. At the same time, I cannot consider 
 that this clause woiild induce the Court lightly 
 to dispossess a family, of an old family estate. 
 It is possible that a life estate might not sell well, 
 and that a mere estate pour autre vie, as this is, 
 would not be so productive even for the mortgagees, 
 as the receipt of the rents during the continuance 
 of the two lives, but at all events before I give 
 any directions for a sale, I think the mortgagors 
 should have an opportunity of stating upon affi- 
 davit what they may think material in opposition 
 to a decree for sale." On a subsequent day his 
 Honor refused to direct a sale. The following 
 were the grounds of his judgment. His Honor 
 said, " the 15th & 16th Vict. c. 86, s. 48, has 
 given a discretion to the Court for the benefit 
 of all the parties interested, which must be ex- 
 ercised to the injury of none. In this case not 
 one of the mortgagees advanced his money, in 
 the belief that such a decree for sale as that now 
 
3a06 THE NEW CHANCEKY PRACTICE. 
 
 • asked would be made. The act relied upon 
 has been passed since the suit was at issue. The 
 first mortgagees may, if they please, exercise 
 their power of sale ; the subsequent incumbrancers 
 have no estate in the premises, neither have they 
 any power of sale. _ Is it then for the benefit of 
 all that the estate should be sold.? From the 
 number of incumbrancers some time must be 
 consumed in working out the successive fore- 
 closures, before the estates can become finally 
 vested in one, but if the life interests are sold, 
 it will be for less than their real value. The 
 Court, therefore, must take this into considera- 
 tion, against the long and complicated proceed- 
 ings attending a foreclosure. During this time 
 one of the tenants for life might compromise the 
 debts with some of the minor incumbrancers, 
 and the complication of the proceedings might 
 induce them, to acquiesce. I therefore think 
 that it would be an injury to the mortgagors, if 
 the Court exercised its authority to sell, and 
 though it might be an advantage for the first 
 mortgagees, it would be a disadvantage to the 
 subsequent incumbrancers. I think it better, 
 therefore, that I should make the common decree 
 for foreclosure." 
 Not the It was not uniformly the practice, even under 
 
 practice the old systcm, to give to successive incum- 
 oid system brauccrs successive periods lo redeem, for in the 
 sucleMive casc of Stcud V. Banks (a), upon a foreclosure 
 
 (o) 22 L. J. (n. b.) 208. 
 
F0BECLO8UEE SUITS. 307 
 
 elaitu: against the mortgagor and three judgriient incum- 
 creditors, a decree was made by the late Vice successive! 
 Chancellor Parker, that all the three judgment redeem. 
 creditors should be foreclosed together and not g^V.' 
 successively. 
 
 In Girdlestone v. Lavender (a), the Court Saienot 
 refused, on the application of the mortgagee, afterdecrec 
 after a decree of foreclosure had been made, closure 
 to vary the decree by directing a sale under the the oia" " 
 48th section of the New Procedure Act 15 & 16 p"''*"*" 
 Vict. c. 86, the then Vice Chancellor Turner 
 observing that, " If the mortgagee might apply 
 in such a case the mortgagor must have the same 
 right, and the consequence would be that a Girdiestmt 
 mortgagor might, after a decree for foreclosure, dfr.""™* 
 apply to the Court for a sale. The provision 
 that the sale was to be directed on such terms 
 as the Court may think fit to direct, and if the 
 Court shall so think fit without previously deter- 
 mining the priorities of incumbrances, or giving 
 the usual or any time to redeem', clearly contem- 
 plated an order to be made at the time of and 
 not after the decree." 
 
 It has been held that the Court has no power Saie not 
 under section 48 to order a sale upon an inter- interiocu-" 
 locutory application, but only at the hearing, catfonfbut 
 This appears to have been so laid down by the he/ring! * 
 Vice Chancellor Kindersley in Wayn v. Lewis (h). 
 
 (a) 9 Hare, Appendix, p. liii. 
 (6) 1 Drewry,, 487. 
 
 X 2 
 
308 THE NEW CHANCERY PEACTICE. 
 
 Wayny. The judgment of his Honor in that case was in 
 
 Lewis, , 11 1 
 
 these terms, " The question here is, whether the 
 Act intended that a direction for sale might be 
 given on an interlocutory application, or whether 
 " it meant to provide only that at the hearing a 
 decree for sale instead of foreclosure might be 
 made. li is clear that before the act no order 
 for foreclosure could be made on an interlocutory 
 application. Then the Act says, the Court may 
 decree a sale instead of foreclosure. If it could 
 not make an order for foreclosure it cannot make 
 an order for sale, which is merely substituted for 
 foreclosure. That is my view of the construc- 
 tion of the Act, and if no authority to the 
 contrary can be produced I must refuse the 
 application." 
 
 It may be observed on this case that there had 
 been a decree for an account and to ascertain 
 priorities, which decree was made before the Act 
 came into operation. Whatever, therefore, may 
 be the true construction of the 48th section with 
 respect to directing a sale in any case on an 
 interlocutory application, it is clear the Court 
 could not do so in that case, without interfering 
 with the decree and prejudicing the subsequent 
 incumbrancers, who upon the report coming in 
 under that decree might find it for their benefit 
 to redeem rather than to have a sale. In a later 
 case of MandenoY. Mandeno (a) the Vice Chancellor" 
 (a) 1 Kay's Eeports, 45. 
 
FOBECLOSUKK SUITS. 309 
 
 Wood is reported to have said " that the 55th 
 section of the New Procedure Act gave power to 
 direct a sale before the hearing, in those cases 
 only, in which the Court would under the old 
 practice have given such direction at the hearing." 
 The case however did not call for an express 
 decision on the construction of the 48th section, 
 and upon the whole it may perhaps be con- 
 sidered, that the point is at present unsettled. 
 As far as mere convenience is concerned, if the 
 priority of the mortgagee applying for a sale, is 
 admitted by the other incumbrancers, there appears 
 no substantial reason why the sale should not be 
 directed upon an interlocutory application. The 
 sole question is, whether the language of this 
 section admits of it, and perhaps the better 
 opinion is that it does not. 
 
 On a claim by an equitable mortgagee by a usuai 
 deposit of title deeds, the usual order is for a sale equhaMa 
 unless the money is paid -within six months. ge°e'fs*uit. 
 This was the form of the order made in Llo^jd 
 v. Whitley (a), where the plaintiffs, bankers at 
 Manchester, had taken a memorandum from the 
 defendant, a customer, accompanied with a deposit 
 of title deeds for securing a floating balance 
 limited to a certain amount, and they were under 
 aiivances beyond that amount. The Vice Chan- zhydv. 
 cellor Wood in the absence of the mortgagor " ""' 
 
 ((/) 17 Jut. 754. 
 
310 THE NEW CHANCERy PRACTICE. 
 
 who did not appear, refused to make the order 
 for sale in case the mortgagor should not pay- 
 within one month, observing, that' in Staines v. 
 Rudlin (a), where a shorter period than six 
 months was fixed, it was by consent. 
 Where sale Where Bstates are put into settlement, and 
 against the tenant for life under the settlement after- 
 men in wards creates a charge on the settled estates, 
 Sge ° to the discharge of which incumbrance the 
 tenant fo/ parties in remainder would not be bound to 
 contribute by reason of there being a covenant 
 against incumbrances as between them, or other- 
 wise, it is clear that the Court would not direct, 
 either under the old or under the new practice, a 
 sale as against the parties claiming in remainder 
 under the limitations in the settlement ; though in 
 such a case if by the charge created by the 
 tenant for life, the incumbrance is or may be 
 charged as between the parties in remainder and 
 third parties, there is no objection to the decree 
 giving to the parties in remainder, an option to 
 ciiappeiiv. redeem, if they think fit. Thus, where a settlor 
 on his marriage settled certain estates, then in 
 mortgage, on himself for life with remainder to 
 his first and other sons in tail, and covenanted 
 against incumbrances, and he afterwards mort- 
 gaged other estates, and became insolvent. A 
 bill was filed by his assignee under the insolvency, 
 
 (a) 9 Hare^ Appendix, p. Ixxiiii. 
 
FORECLOSmtE SUITS. , '311 
 
 .against the several incumbrancers on all the 
 estates, and against the tenant in tail, praying 
 an account of what was due on the several in- 
 cumbrances, that their priorities- might be ascer- 
 tained, and for a sale or redemption. A decree 
 was made in the suit by the Vice Chancellor, 
 directing that on the plaintiff and defendant 
 the tenant in tail paying what was due on the 
 respective incumbrances, the unsettled estates 
 should be conveyed to the party redeeming, and 
 the settled estates should be conveyed on 
 the trusts of the settlement, and in default of 
 redemption that the bill should be dismissed. 
 Upon an appeal from this decision it was held 
 by Lord St. Leonards, that the decree for re- 
 demption, being permissive only as against the 
 tenant in tail, was correct, and that a decree for 
 a sale would have been improper. 
 
 His Lordship in giving judgment, said, " The 
 plaintiff on the record, in taking the estate 
 of the insolvent, takes it subject to all equities 
 to which it is liable. The insolvent, having 
 by the -settlement covenanted to relieve the 
 settled estates from all incumbrances created 
 by him, could never have come into a Court of 
 Equity, to make the tenant in tail under that 
 settlement contribute to the discharge of in- 
 cumbrances subsequent to the date of the settle- 
 ment. The effect in equity of such a covenant, 
 as between the settlor and the parties beneficially 
 
312 DECLARATORY DECREES AND ORDERS. 
 
 interested under the settlement, was, to throw 
 all the debts of the insolvent on his unsettled 
 estates. How far such an equity would bind 
 third persons is not now to be considered, but 
 the unsettled estates being so charged in exon- 
 eration of the settled estates, and the insolvent 
 haying afterwards incumbered those estates, the 
 present suit was instituted by his assignee against 
 the various incumbrancers and the tenant in 
 tail, and it prayed in the alternative a sale of 
 the estates. So far as the bill prayed a sale, it 
 was a matter of course for the Court to have 
 refused the relief which was sought, because no 
 tenant for life can file a bill in order to have 
 an estate sold to discharge incumbrances against 
 which he has covenanted, but inasmuch as the 
 decree contained a direction as to taking an 
 account of incumbrances, the tenant in tail was 
 properly enough kept before the Court, because 
 if the accounts were taken behind his back they 
 would not, of course, bind him, and the conse- 
 quence might possibly be to impose upon him 
 the necessity of filing another bill. 
 
 The oi'dinary method of enforcing redemption 
 undoubtedly is by foreclosure; but a decree for 
 redemption is not necessarily to be followed by 
 foreclosure, and if the decree in the present suit 
 had dircQted a foreclosure, the tenant in tail 
 would have had just cause to complain of it, 
 though he could only have been permitted to 
 
rORECLOSUBE SUITS. 313 
 
 redeem upon the terms of paying off all the 
 incumbrances. But the decree has not assumed 
 that shape, for, with respect to the unsettled 
 estates, it simply gives a direction, that upon the 
 plaintiff or the tenant in tail paying the charges 
 upon the unsettled estates, the incumbrancers 
 should convey and release to the one who should 
 so redeem; that is^ only permissive not com- 
 pulsory. 
 
 It is stated, that, at the original hearing, the 
 counsel on the other side did not object to that 
 permission. I do not see why they should ; but 
 they certainly cannot do so now. Then if the 
 tenant for life should pay off the charges upon 
 the settled estates, they are not to be conveyed to 
 him, but they are to be conveyed to the uses of 
 the settlement. The tenant in tail would there- 
 fore have those estates discharged from all in-, 
 cumbrances subsequent to the date of the settle- 
 ment. He is clearly not aggrieved by the 
 decree, for, if there is redemption, he must have 
 his costs, and, if there is no redemption, the bill 
 must be dismissed with costs. 
 
 In a case oi Hughes y. Williams {a) concerning Hughes v. 
 the same settlement, where the bill was filed by '*''""""•• 
 a registered judgment creditor of the tenant for 
 life, against the tenant in tail, and the assignee 
 under the insolvency, and the other incum- 
 
 (a) 3 M'X. & G-. 683. 
 
314 THE NEW CHANCERY PEACTICE. 
 
 brancers, praying a sale in satisfaction of the 
 judgment debt, and of what might be paid by 
 the plaintiff in discharge of prior incumbrances, 
 subject to the estate and interest of the t/Cnant 
 in tail under the settlement; it was held by 
 Lord Truro reversing a decree of foreclosure 
 which had been made by the Vice Chancellor 
 Wigram against the tenant in tail, that the settled 
 estates must be regarded as exonerated from in- 
 cumbrances, as between the settlor and the tenant 
 in tail, and that the plaintiff was subject to the 
 same equities as the settlor, and that as the judge- 
 ment debt was itself subsequent to the settle- 
 ment, the tenant in tail could not be affected by 
 the judgment, and ought not to have been fore- 
 closed. His Lordship made an observation with 
 respect to the frame of the pleading in that case, 
 which it may not be unimportant to state, as 
 being of general application with respect to all 
 mortgage suits. His Lordship is reported to 
 have said, with respect to the right to foreclose 
 the tenant in tail, the appellant, the state of the 
 pleadings prevents the plaintiff from doing this. 
 The statements and charges of the biU do not 
 drop a single hint of any intention to ask any 
 such decree against the appellant, and the prayer 
 so far from seeking such a decree does not poin 
 to any foreclosure at all, but expressly prays 
 that what the plaintiff shall pay in redemption of 
 the several charges may be added to what shall 
 
FOEECLOSURE SUITS. 315 
 
 be found due to her, and that the same may be 
 raised and paid by sale, subject to the estate and 
 interest therein of the appellant. Surely, if there 
 ever was a case in which a defendant was liable 
 to be taken by surprise, this is one. Not only 
 is there an omission of any statement, or charge, 
 or prayer, applicable to the relief asked at the 
 hearing, but there is a prayer of that which is 
 absolutely inconsistent with that relief, and which 
 expressly saves the rights of the appellant un- 
 prejudiced by the suit. His Lordship then pro- 
 ceeded to consider the question raised in the suit 
 on the merits, and commented on Averall v. 
 Wade (a), decided by Lord St. Leonards when 
 Lord Chancellor of Ireland, and he made a decree 
 fcdlowing the principle of that case. 
 
 It may be remarked here, that if Lord Truro's Forecio- 
 observation in the above case of Hughes v. Wil- granted 
 liams, with respect to the frame of the pleadings, prayer for 
 is to be understood as meaning, that, on the ^**''" 
 ground of surprise, where a sale only was asked 
 under the old practice, it was not competeiit to 
 the plaintiflF to ask at the bar a decree for fore- 
 closure, it is clear that in any case in a mort- 
 gagee's suit, the plaintiflF should not fail to ask 
 for the alternative relief by the prayer of his bill, 
 otherwise, if the bill prayed only for a sale, and 
 it were not a proper case for a sale, the bill 
 Would have to be dismissed. 
 
 («) Lloyd and Groold, 258. 
 
316 THE NEW CHANCERY PRACTICE. 
 
 Necessity In the case of Cutts v. Salmon (a), which was 
 
 fo/prayw & suit foF the speclfic performance of a contract 
 
 for j.«> ^^^ purchase, where the Court refused the decree 
 
 sought. ^^ carry the contract into effect, upon the well 
 
 known principles upon which the Court acts in 
 
 dealing with transactions between attorney and 
 
 client, and where upon counsel pressing that the 
 
 order for dismissal of the bill should be made 
 
 conditional, on the repayment by the defendant of 
 
 the purchase money, and of the plaintiff's outlay 
 
 for necessary repairs during the time he had 
 
 been in possession under the contract, Lord' St. 
 
 Leonards refused to make such an order, solely 
 
 on the ground that such alternative relief was not 
 
 specifically asked by the prayer of the bill, though 
 
 a case for such relief was fully made on the 
 
 pleadings. 
 
 Arrears of ' I^ both the above cases of Chappell v. Rees, 
 
 notT** and Hughes v. Williams, it was held that interest 
 
 tSlnd"" upon a legacy charged by way of mortgage was 
 
 ''ears"^ ''" to be computcd, for a period of six years from the 
 
 filing of the bill, and not beyond that period. 
 Mortgagee This Tule, fouudcd on the late Statute of Limi- 
 
 may tack . • i /. i • i 
 
 arrears of tatious. With respect to the period for which 
 
 interest „ . -ii i i 
 
 for twenty arrears oi interest will be treated as a charge 
 agSnst the upon land, suggests an observation with respect to 
 mortga- " the importance of introducing into every indenture 
 gors cove- ^^ mortgage, as indeed is invariably done, the usual 
 
 (o) 15 Jur. 615. 
 
FORECLOSUBE SUITS. . 317 
 
 covenant for payment, as collateral security to the 
 charge created on the land. This is shown by the 
 late case oiElvy v.Norwood(a), where the heir, of 
 a mortgagor who had covenanted for himself an4 
 his heirs to pay the mortgage debt and interest,' 
 was held not to be at liberty to redeem without 
 paying arrears of interest to the extent of twenty 
 years, the mortgageei being entitled to tack the 
 arrears of interest to the debt as against the heir 
 in respect of the personal liability on the covenant, 
 though the land itself was not charged with more 
 than six years' arrears. 
 
 Where money is advanced upon a deposit of Equitable . 
 title deeds, a written memorandum should always by deposit 
 accompany the deposit, showing the precise deeds! 
 object and purpose of the deposit. Where this 
 has not been done, there is often considerable 
 difficulty in establishing the fact of the equitable 
 mortgage. 
 
 It seems that the mere production by a bond wiicre no 
 
 written 
 
 creditor of the title deeds to the obligor's real memoian. 
 estate, without explanation, neither constitut&s deposit., 
 an equitable mortgage, nor affords a sufficient 
 ground for an inquiry before the Master. Thus, in 
 Chapman v. Chapman (b), where a bond creditor, chapman 
 claiming also an equitable mortgage on real cAnpm, 
 estate, filed his bill for foreclosure, and in aid. 
 
 Co) 5 De G-ex & Sm. 240; 8. C. 16 Jur. 49.3 ; 21 L. J. 
 (n. s.) 716. 
 (i) 13 Bear. 308. 
 
 V. 
 
 an. 
 
318 THE NEW CHANCERY PRACTICE. 
 
 for the administration of the personal estate, 
 against the executors and the parties entitled to 
 the mortgaged estate, but he gave no evidence 
 whatever to connect the bond with the possession 
 of the title deeds, it was held that he was not 
 entitled even to an inquiry before the Master for 
 the purpose of establishing his equitable mort- 
 gage. 
 
 The Master of the Rolls, in giving judgment, 
 made these observations : " What the object of 
 the parties may be for taking this course, I have 
 no means of explaining. The objection made to 
 the plaintiff's claim to an equitable mortgage 
 is this, that the case is not proved, so as to 
 entitle him to ^ny decree against the estate, or 
 to have any account taken. The defendants 
 altogether deny the plaintiff's right, and the 
 question, therefore, turns upon the evidence 
 adduced by the plaintiff. The only evidence is 
 this, the title deeds are prodiaced from the pre- 
 sent possession of a party, who is a;lso a bond 
 creditor, and nothing whatever is proved con- 
 necting the bond with the possession of the title 
 deeds. The simple statement of the case, there- 
 fore, is, that at this time, being a great many 
 years after the alleged transaction, the title 
 deeds are discovered to be in, and are produced 
 from, the possession of the bond creditor. I am 
 of opinion that this is not sufficient to support 
 an equitable mortgage. 
 
FORECLOSURE SUITS. 319 
 
 " That being so, then comes the question, whe- 
 ther the plaintiff is entitled to go into the 
 Master's Office, and there make out a connexion 
 between the bond and the title deeds. I am of 
 opinion that there is no sufficient ground for 
 that ; for the principle on which the Court acts 
 is, to require a plaintiff to come forward on 
 distinct allegations,, supported by satisfactory 
 proofs. I am therefore bound to dismiss so much 
 of the bill, as seeks to establish an equitable • 
 mortgage." 
 
 The fate of this case furnishes another instance, 
 in addition to those before referred to in this 
 chapter, of the importance of an alternative prayer 
 for relief; for, upon the Master of the Rolls inti- 
 mating, that he did not see that any injury 
 could arise to any of the persons interested in 
 the real estate, from an inquiry whether the real 
 estate was answerable for the bond debt, it was 
 objected that there was no prayer for the admi- 
 nistration of the real estate, and no statement 
 amounting to a claim to payment out of the real 
 estate, upon which the Master of the EoUs 
 directed the bill to be dismissed with costs as 
 against all parties, leaving the plaintiff to go 
 against the personal estate under the decree in 
 another suit. 
 
 In a foreclosure suit, any objection for want of when 
 parties should be taken at the time, and before ^mnlhy^ 
 the decree for foreclosure is pronounced. Other- decree'"™ 
 
320 THE NEW CHANCERY PBACTICB. 
 
 notwith; Avise, the decree will bind the defendant to the 
 
 absence^of suit, notwithstanding that there may have been 
 
 necMsary ^^ abscnt party whose interest was known to 
 
 him at the time, but was not disclosed on the 
 
 pleadings. 
 
 Thus, where the plaintiff in a redemption suit 
 had been made a party to a bill of foreclosure, 
 and in that suit he raised no objection on the 
 ground of the absence of another party, he was 
 not allowed in his own suit to set up an objec- 
 tion, for want of parties in the former suit. 
 Bromiitv. In Bromitt v. Moor, where this point arose, 
 
 Moot, 
 
 the then Vice Chancellor Turner said, the plaintiff 
 could not now avail himself of such an imper- 
 fection in the frame of the suit, to avoid the 
 effect of the foreclosure. 
 Plaintiff The plaintiff in a foreclosure suit should make 
 sure suit " inquiry of the subsequent incumbrancers whether 
 quire of" they claim, before he makes them parties to the 
 inoum-"™'^ suit; Otherwise, if they afterwards disclaim, he 
 whetTer ^^ hdi^vQ to pay their costs. Thus in Gurney v. 
 they claim, jachson («), the bill alleged that the plaintiff, the 
 first mortgagee, had applied to the defendants, 
 who were subsequent mortgagees, to pay his 
 mortgage debt and interest, and that they had 
 refused so to do. The defendants, by their 
 answer, stated that the plaintiff had not made 
 any application to them, and that if he had, they 
 
 (a) 22 L. J. (ST. B.) 417. 
 
FORBCLOSURE SUITS. 321 
 
 would have released and disclaimed all interest, 
 and they then disclaimed. 
 
 In deciding on the question of costs, the Vice Costs. 
 Chancellor Stuart made these observations. His this is not 
 Honor said he thought that this was a very q„„_ 
 important question, and to be disposed of on a "'''"*«™- 
 principle which was not touched by any of the 
 authorities cited. ,The defendants insisted upon 
 their right to the costs, not upon the ground of 
 their not being necessary parties, but because if 
 they had been applied to before the bill was tiled, 
 they would have submitted to the plaintiff's 
 demand. The answer was distinct, " that if the 
 plaintiff had so applied, they would have released 
 and disclaimed all right and interest." The 
 plaintiff by the bill made it part of his case, and 
 put in issue the fact, that he had applied to the 
 defendants and requested them to pay the mort- 
 gage debt and interest, and interrogatories were 
 put to the defendants whether they had not been . 
 so applied to. It was very true that these were 
 common words, but they were common words 
 used for a wise purpose. At law, if a man sued 
 out a writ and the demand was immediately paid, 
 the costs would follow, as no previous application 
 for the debt was necessary. An entirely different 
 course, however, was pursued in this Court, and 
 under the old mode of pleading the forms used 
 were not senseless ones, but were wisely adopted 
 according to the established principles of the 
 
322 THE NEW CHANCERY PRACTICE. 
 
 Court. The words were introduced to guide the 
 Court in its discretion in dealing with the costs, 
 for if a man willing to accede to a demand were 
 dragged into Court without a previous applica- 
 tion, such a circumstance was important upon 
 the (Question of costs. In all the cases cited for 
 the plaintiff the question had been, how a party 
 who disclaimed should be dealt with at the hear- 
 ing. Had there been here only a simple disr 
 claimer, the case would be different; but as no 
 previous application had been made by the 
 plaintiff, he must pay the costs of these defend- 
 ants, (a) 
 
 («) As to the first mortgagee proying subsequent incum- 
 brances in foreclosure suits under the old practice, see 
 Duberly v. Day, 14 Beav. 9. 
 
323 
 
 CHAPTER IX. 
 
 ON BUSINESS AT CHAMBERS. 
 
 Ordinary routine of business at chambers, what it 
 includes, does not include applications under 
 Trustee Acts, Legacp Duty Acts, or Drainage Acts, 
 where chief clerk makes order without personal 
 direction of Judge, course v)here application 
 embraces several objects one of which is properly 
 mad'e in open Court, practice on petitions for 
 administration of charities, renewal of a lease may 
 be obtained by.summons, administration summons 
 for administering personal estate, duplicate sum- 
 mons filed in record office, form of this summons, 
 leading case of Ashley v. Sewell under 4:5th sec- 
 tion of the act, as to inserting special directions 
 in order made on administration summons, case 
 of Crawley v. Haddocks as to construction of the 
 A7th section of the act, extent of the jurisdiction 
 at chambers under this section, proceedings under 
 decrees directing accounts and inquiries, when 
 the decree directing accounts and inquiries must 
 be drawn up, as to furnishing copies of accounts 
 for the use of the Judge at chambers, as to 
 numbering the several accounts and inquiries 
 directed by decree, claimants to come in under 
 decree within time fixed by advertisement, interest 
 to be computed on debts unless otherwise directed 
 Y 2 
 
324 THE NEW CHANCERY PRACTICE. 
 
 by order, as to obtaining assistance of accountants 
 and scientific persons, where this is required 
 cause should he transferred from Master to Judge 
 at chambers, mode of taking evidence after the 
 hearing, course now taken where a previous 
 reference has been sent to Master, as to allow- 
 ances and fees to accountants and other scientific 
 persons, as to excepting to chief clerk's report, as 
 to examining witnesses before chief clerk, when a 
 short certificate instead of a formal report, as to 
 discharging or varying chief clerk's certificate 
 after it is filed, what proceedings may still be 
 taken before the Master, where Master may make 
 partial report or certificate, where parties delay 
 to bring Master's report before the Court solictor 
 to the suitor's fund may do so, former practice of 
 the Master's offices abolished, proceedings under 
 the Winding-up Act to go to the Masters, as to 
 jurisdiction at chambers in mattersnow depending. 
 
 Nature of Bx the 26th section of the Master in Chancery 
 
 netsto'bo Abolition Act 15 & 16 Vict. c. 80, .it is provided 
 
 at'cbam!** that the business to be disposed of by the Master 
 
 cording to °^ t^® Rolls and Vice Chancellors respectively, 
 
 sl'o^nrof^the ^^^^^ sitting at chambers, shall consist of such of 
 
 Chance'" ^^® foUowing matters, as the Judge shall from 
 
 Abolition time to time think may be more conveniently 
 
 disposed of in chambers than in open Court, 
 
 videlicet, applications for time to plead answer or 
 
 demur; for leave to amend bills or claims; 
 
 for enlarging publication; and also applications 
 
BUSINESS At chambers. 325 
 
 for the production of documents; applications 
 relating to the conduct of suits or matters; 
 applications as to the guardianship and main- 
 tenance of infants; matters connected with the 
 management of property ; and such other matters 
 as each such Judge may from time to time see 
 fit, or as may from time to time be directed by 
 any Greneral Order of the Lord Chancellor. 
 
 The 29th section ^f the Master in Chancery judges to 
 Abolition Act 15 & 16 Vict. c. 80, directs that mitters 
 from and after the first day of Michaelmas term heard bc- 
 one thousand eight hundred and fifty-two, the °^xJ * 
 Master of the Rolls and Vice Chancellors respec- "'*'''"■ 
 tively, shall have the sole power, subject to" any 
 rules which may be made by the Lord Chancellor, 
 with the advice and assistance of them, or any 
 two of them, to order what matters and things 
 shall be investigated by and before their respec- 
 tive chief clerks, either with or without their 
 direction during their progress, and what matters 
 and things shall be heard and investigated by 
 themselves; and particularly,' if the Judge shall 
 so direct, his chief clerks respectively shall take 
 accounts, and make such inquiries as have usually 
 been prosecuted before the chief clerks of the 
 present Masters, and the Judge shall give such 
 aid and directions in every or any such account 
 or inquiry as he may think proper, but subject 
 nevertheless to the right hereinafter provided for 
 the suitor to bring any particular point before the 
 Judge himself. 
 
326 THE.NEW CHANCERY PRACTICE. 
 
 The following applications are now in all 
 cases to be made at the chambers of the equity 
 Judges, and not in open Court, viz. 
 
 1. As to guardianship of infants (except the 
 appointment of guardian ad litem). 
 
 2. .As to maintenance or advancement of 
 infants. 
 
 3. For the administration, of estates under the 
 act of 15 & 16 Vict. c. 86. 
 
 4. For time to plead, answer, or demur. 
 
 5. For leave to amend bills or claims. 
 
 6. For enlarging publication, or the time for 
 closing the evidence. 
 
 7. For the production of documents. 
 
 8. Relating to the conduct of suits or matters. 
 
 9. As. to matters connected with the manage- 
 ment of property. 
 
 10. For. payment into Court of purchasers' 
 monies under sales by order of the Court 
 and investing the same. 
 
 ,11. For stop orders where the assignor and 
 assignee concur. 
 These heads of business at chambers at first 
 included applications under the Trustee Acts, and 
 Legacy Duty Acts, and Drainage Acts, but in a 
 case which came before the Lord Justice Turner 
 when Vice Chancellor shortly after the first paper 
 of business at chambers was issued, his Honor said 
 that the Judges had considered the cases of appli- 
 cations, under the Trustee Acts 1850 and 1852, and 
 the Legacy Duty Act which they had originally 
 
BUSINESS AT CHAMBERS. 327 
 
 intended to take by summons at chambers, but 
 which upon further consideration they were of 
 opijjion should be made by petition, and in the first 
 instance should be always made in open Court. (a) 
 The same rule has since been laid down with 
 respect to applications under the Drainage Acts. 
 Of these various proceedings in suits, or by way where 
 
 - , . , . IT chief clerk 
 
 oi summons, which now constitute the ordinary makes 
 business at chambers, the greater part are dis- "ut per. 
 posed of by the chief clerk, under a general dis- tiTtfof 
 cretion delegated to him by the Judge for the " ^^" 
 purpose, but in general without consulting the 
 Judge personally before the order is made, or even 
 requiring his subsequent approval, notwithstand- 
 ing they may be contested cases, except where the 
 matter involves some nicety, and except in those 
 specified cases which the particular Judge may 
 from time to time direct to be brought before 
 him for his personal decision or supervision. Of 
 this latter kind are all cases relating to infants, 
 where the object is to appoint a guardian, or to 
 order an allowance of income, or the application 
 of a part of the corpus for the infant's mainte- 
 nance or advancement, and in general all contested 
 applications relating to the production of docu- 
 ments. Where there is any dispute or claim of 
 e:Semption or privilege, in all such cases, the ques- 
 tion whether the documents ought to be produced 
 is uniformly adjourned, to be discussed in open 
 Court. 
 
 In those cases which, according to. the special 
 (a) Anon. 9 Hare, Appendix, p. Ixxxiii. 
 
328 THE NEW CHANCEEY PRACTICE. 
 
 directions of the particular Judge from time to 
 time, it is usual to bring before the Judge per- 
 sonally for his own decision or supervision,^he 
 summonses must of course be fixed at times 
 when the Judge will be at chambers,; and they 
 will then be attended before him. In other cases 
 ■ the summonses may be fixed at any hour, and 
 they will be attended before the chief clerks. 
 In case any difiiculty arises, the chief clerks will 
 suspend their judgment, and either adjourn the 
 case to be heard before the Judge personally in 
 open Court, or at chambers, as the case may 
 be, or will communicate with him upon their 
 difficulty. 
 Where Where the motion embraces any other objects 
 
 cLbrare'°" bcsidcs thosc above specified, as where it seeks 
 of whtch'is" *^^*' publication may stand enlarged, and also 
 mX^in that the evidence on both sides may be taken 
 open Court, grally, the application, even if it is a consent 
 motion, must be made in Court. Atkinson v. 
 The. Oxford, Worcester, and Wolverhampton Rail- 
 way' Company, (a) 
 Pra(;ticcon Petitions for the administration of charities 
 FoVadmi- are now usually opened in Court, and upon the 
 ofcharkL. necessary proofs constituting the foundation of the 
 order being given, the petition is ordered to 
 stand over, and the petitioners are directed to 
 attend the Judge at chambers, with proposals for 
 a scheme, and the Attorney General is served 
 with a summons for attendance at chambers on 
 (a) 9 Hare, Appendix, p. xix. 
 
BUSINESS AT CHAMBERS. 329 
 
 settling the scheme. This was the rule laid 
 down In re Hanson's Trust. \a) 
 
 In a previous case, before the case of Hanson's 
 trust, the Master of the Rolls had adopted a 
 useful rule on this point which is likely to be 
 very convenient and beneficial to charities- in 
 avoiding the expense of petitions. His Honor 
 had directed that application should be made for 
 the appointment of new trustees by summons 
 before the Judge at Chambers, notice of the • 
 application, being given to the Attorney General, 
 Upon the case of The Free Grammar School of Case of 
 
 ■ The Free 
 
 Thomas Conyers (b) coming before the Vice Chan- Gramma,- 
 cellor Wood, his Honor thought the applicatio"n T/iomas 
 might be properly and beneficially made in ""^""' 
 the manner which the Master- of the Rolls had 
 adopted, and in settling the scheme as well 
 with regard to the appointment of new trustees 
 as on some other occasions in which it was 
 contemplated by the scheme that circumstances 
 in the government of the charity might call for 
 the direction of the Court, his Honor ordered 
 that the trustees should apply to the Court, and 
 that such application should be made before 
 the Judge at chambers, of which application the 
 Attorney General was to have notice. 
 
 The renewal of a lease may be obtained by Renewal 
 
 •' . "^ ofaleate 
 
 summons in chambers under the new practice, may be 
 
 . , . obtained hy 
 
 without presenting a petition for the purpose, summons. 
 This was decided in Bickford v. Chalker (c), where . 
 
 (a) 9 Hare, Appendix, p. Iv. (J) 10 Hare, Appendix, p. v, 
 (r) 21 L. T. 192. 
 
330 THE NEW CHANCERY PRACTICE. 
 
 a petition was presented asking for the renewal of 
 a lease, not to an original but to a new tenant. 
 
 The Vice Chancellor Kindersley said it should 
 
 have been asked for by a summons in chambers^ 
 
 without presenting a petition, but his Honor 
 
 finally made the order as prayed. 
 
 Adminis- By the 45th section of the New Procedure 
 
 Summons Act 15 & 16 Vict. c. 86, any creditor, or 
 
 nistering specific, pecUuiary, or residuary legatee, or next 
 
 estate!*' ' ^^ ^^^ ^^ ^ deceased person, may apply for and 
 
 obtain as of course, without bill or claim filed, or 
 
 any other preliminary proceedings, a summons 
 
 requiring the executor or administrator, as the 
 
 case may be of such deceased person, to attend 
 
 before the Judge at chambers to show cause why 
 
 an order for the administration of the personal 
 
 estate of the deceased should not be granted, 
 
 and the Judge may thereupon make the usual 
 
 - order for the administration of the estate of the 
 
 deceased, with such variations, if any, as the 
 
 circumstances of the case may require. 
 
 Duplicate ^ By the 46th section of the New Procedure Act 
 
 summons 
 
 to be filed 15 & 16 Vict. c. 86, a duplicate or copy of such 
 office. summons must, previously to the service thereof, 
 be filed in the Record Ofiice of the said Court, 
 and the copy so served must be stamped with a 
 stamp of such office indicating the filing thereof. 
 The form of the summons is. given in 
 Schedule (E) to the General Orders of 7th 
 August 1852. On applying for this summons 
 as of course, the party claiming to be cre- 
 ditor, or legatee, or next of kin, is not required. 
 
BUSINESS AT CHAMBERS. 331 
 
 at least in the first instance, to lodge any 
 affidavit of his filling that character. If he 
 does not fill either of those characters, it is'pre- 
 sumed that the executor or administrator may 
 either move in open Court to discharge the 
 summons, or he may attend it before the Judge 
 at chambers, and oppose the order for adminis- 
 tration being made. When the order is made, it 
 is drawn up, passed, aftd entered by the registrar 
 just in the- same manner as a decree, and the 
 proceedings under it, the advertisements for cre- 
 ditors, the accounts and inquiries are precisely 
 similar. In case of several claimants, the rule in 
 settling who was to have the carriage of the 
 order, would, it is presumed, be as in the case of 
 several suits on behalf of infants detur digniori, 
 i. e. to whoever was most likely to protect the 
 interest of all parties interested in the estate. 
 
 The leading case with respect to the extent of Leading 
 the jurisdiction of the Court under the 45th Ashky v. 
 section of the New Procedure Act 15 & 16 Vict. 
 c. 86, is Ashley v. SeweU(a). There, a married 
 woman, donee of a general testamentary power 
 of .g,ppointment over personal property comprised 
 in her marriage settlement, by her will appointed 
 gave and bequeathed all the personal estate, 
 which under the power, or by virtue of any 
 separate right of property she was competent to 
 dispose of, to her executors therein named upon 
 certain trusts. Upon her death, probate of the 
 will was granted to the executors, limited to the 
 
 (a) 22 L. J. (n. s.) 659 ; S. C. 17 Jur. 269 ; 21 L. T. 39, 
 
332 THE NEW CHANCERY PRACTICE. 
 
 testatrix's interest in the property over which 
 she had the disposing power under the settle- 
 ment, and which by the will she had appointed 
 and disposed of accordingly. A summons was 
 taken out at the chambers of the Master of the 
 Rolls, by an infant legatee under the testamen- 
 tary appointment by her next friend, requiring 
 the executors to show cause why an order for 
 the administration of the personal estate of the 
 testatrix should not be granted. The Vice 
 Chancellor Kindersley had refused a similar appli- 
 cation in another case. Re White's Estate, and 
 the Master of the Rolls desired that the point 
 should be submitted to the Appeal Court. It 
 was argued against the existence of the jurisdic- 
 tion under the 45th section, that the Court could 
 make no order under that section which did not 
 extend to the general personal estate of the 
 deceased person, that the testatrix being a married 
 woman at the time of her death could have no 
 general personal estate, that the defendants were 
 not executors in the proper sense, but appointees, 
 that an order, if made, would be an order not 
 for the purpose stated in the statute, of admin- 
 istering the trusts of the will, but of administer- 
 ing the trusts of the settlement, which instru- 
 ment ought to be proved in the usual manner, 
 and that the husband, who either had taken out or 
 was entitled to take out a cceterorum administra- 
 tion, was not before the Court. The Appeal 
 Court however held, that the case was within the 
 spirit of the statute, and, upon an intimation of* 
 their opinion, the case was remitted to the Master 
 
BUSINESS AT CHAMBERS. 333 
 
 of the Rolls for his decision, whether the juris- 
 diction should be exercised, and to what extent, 
 and in the presence of what parties. A decree 
 was accordingly made by the Master of the Rolls 
 in a very special form, and as it is understood, 
 without requiring the husband to be served with 
 the proceedings, (a) 
 
 Where the order for administration is obtained As to 
 
 directing 
 
 on summons at Judge's chambers, it is clear that special 
 
 . , J. .. ... , ^ inquiries 
 
 any special directions or inquiries may by consent m order for 
 be inserted in the decree so obtained which the tration. 
 case may require. 
 
 In Ritchie v. Humberstone (^), a suit had been 
 instituted against an executrix, which, though 
 not expressly charging wilful default in terms, 
 yet asked special inquiries as to the times when, 
 and circumstances under which each investment 
 had been made, with a view to charging the exe- 
 cutrix, if it should be found that the property 
 had not been duly invested. 
 
 A sister of the executrix thereupon obtained 
 the common administration order on a friendly 
 summons taken out at the chambers of the Master 
 of the Rolls, and then moved to stay all further 
 proceedings in the first cause. 
 
 The Vice Chancellor Wood made the order 
 
 upon the terms of the plaintiff in the suit at the 
 
 Rolls, consenting to add a direction to that 
 
 decree suflScient to let in the plaintiff in the first 
 
 suit to come against the trustee for any wilful 
 
 («) See form of this decree in Ashley v. Sewell, infra, 
 Appendix of Forms, p. 184. 
 (J) 17 Jur. 756. 
 
334 ■• THE NEW CHANCERY PRACTICE. 
 
 default. The plaintiff in the suit at the Rolls 
 was ordered to pay the taxed costs of the first 
 * suit and to take them over out of the estate. . 
 Important The 11th sectioH of the Master in Chancery 
 tobedis- Abolition Act 15 & 16 Vict. c. 80, provides that 
 open Court, it shall in future be lawful for the Master of the 
 Rolls, and the Vice Chancellors for the time 
 being, and they are thereby required to sit at 
 chambers for the despatch of such part of the 
 business of the Court as can, without detriment 
 to the public advantage arising from the discus- 
 sion of questions in open Court, be heard in 
 chambers according to the directions thereinafter 
 contained and the times at and during which 
 they respectively shall so sit, are to be from time 
 to time fixed by them respectively. .s - 
 
 Chamber The 12th scction of the Master in Chancery 
 be^arried Abolitiou Act 15 & 16 Vict. c. 80, directs that 
 ju'nc'tiou"' the chamber business of the Master of the Rolls, 
 business"' and of cvcry Vice Chancellor, shall be carried on 
 in conjunction with his Court business, but as 
 no rooms are attached to the Courts of the Vice 
 Chancellors, in which such chamber business can 
 be transacted, the Lord Chancellor is authorized 
 to cause temporary chambers to be provided for 
 that purpose until Courts with proper rooms 
 attached can be provided, 
 chambe'rs By the 13th scction of the Master in Chancery 
 sam^Turis. Abolitlon Act 15 & 16 Vict. c. 80, the Master 
 ™sjee"t of of the Rolls and the Vice Chancellors respectively 
 hearf here ^hcu sitting in chambers are to have the same 
 Court!''™ power and jurisdiction in respect of the business 
 
BUSINESS AT CHAMBERS. • 335 
 
 to be brought before them as if they were re- 
 apeetively sitting in open Court. 
 
 By the 14th section of the Master in Chancery Aa^o mode 
 
 ■■^_ ... of drawing 
 
 Abolition Act 15 & 16 Vict. c. 80, it is provided up orders 
 
 /. 1 -r> 1 "lade at 
 
 that the orders made by the Master of the Rolls chambers. 
 and Vice Chancellors when sitting in chambers 
 shall ordinarily be drawn up there by their re- 
 spective clerks, but witii power to each of such 
 Judges to direct any of su-ch orders to be drawn 
 up by the Registrar of the Court, in like manner 
 as orders made in open Court are drawn up, for 
 which purpose the Registrars of the Court when 
 required are to attend the Master of the Rolls 
 and the Vice Chancellors respectively when 
 sitting at chambers in such order and manner as 
 shall be found most convenient for furthering 
 the business of the Court, and as the Lord 
 Chancellor with the concurrence of the Master 
 of the Rolls and Vice Chancellors, or any two of 
 them, shall from time to time by any general 
 order direct. 
 
 By the 15th section of the Master in Chancery Orders 
 Abolition Act 15 & 16 Vict. c. 86, all orders of chambers 
 the Master of the Rolls, or of any Vice Chancellor sam^'effect 
 made at chambers, are to have the force and madef" 
 effect of orders of the Court of Chancery, and °"'^'" 
 such orders may be signed and enrolled in like 
 manner. 
 
 The 27th section of the Master in Chancery What 
 Abolition Act 15 & 16 Vict. c. 80, enables the to.be ad- 
 
 TT. /-(I 11 journcdfor 
 
 Master of the Rolls and the Vice Chancellors oonsidera- 
 
 ... /-i J 'ion '" 
 
 respectively, when sitting m open Court, to ad- Court. 
 
336 THE NEW CHANCERY PRACTICE. 
 
 journ for consideration in chambers any matter, 
 which in the opinion of such Judge may be more 
 conveniently disposed of in chambers, or when 
 sitting in chambers to direct any matter to be 
 heard in open Court which he may think ought 
 to be so heard. 
 How pro- By the 28th section of the Master in Chancery 
 
 ceedings •' 
 
 to be com- Abolition Act 15 & 16 Vict. c. 80, the mode of 
 
 menced by t i ■ 
 
 summon^, proceeding before the Master of the Rolls and 
 Vice Chancellors respectively at chambers is 
 to be by summons, and as nearly as may be, 
 according to the form now adopted by the Judges 
 of the Superior Courts of Common Law when 
 sitting at chambers. 
 Jurisdic The 30th section of the Master in Chancery 
 chief clerk Abolition Act 15 & 16 Vict. c. 80, provides ) that 
 moning" cach chief clerk shall, for the purpose of any 
 mtnesses. proceedings directed by the Master of the Rolls, 
 or any Vice Chancellor, to be taken before him, 
 have full power to issue advertisements, to sum- 
 mon parties and witnesses, to administer oaths, 
 to take affidavits and acknowledgments, other 
 than acknowledgments by married women, to 
 receive affirmations, and where so directed by 
 the Judge to whose Court he is attached to 
 examine parties and witnesses, either upon inter- 
 rogatories, or viva voce, as such Judge shall direct. 
 All powers By the 36th section of the Master in Chanceiy 
 by Masters Abolitiou Act 15 & 16 Vict. c. 80, all or any of 
 to Judge the 'powers authorities and jurisdiction given to 
 berl*™ the Masters in [Ordinary of the said Court, by 
 any act or acts then in force, may in future be 
 
BUSINESS AT CHAMBERS. 337 
 
 exprcised by the Master of the Rolls and Vice 
 Chancellors respectively. 
 
 The ordinary business at Judges' chambers Nature of 
 
 . . "^ ° . thebusi- 
 
 consisting of the several matters before particu- ness trans- 
 larized under their respective heads, may be chambers. 
 divided into two parts. The one comprises pro- 
 ceedings originating at chambers, the other com- 
 prises proceedings taken under decrees or decretal 
 orders of the Court ; as, for example, under the 
 common administration decree directing accounts 
 and inquiries. Both these modes of proceedings 
 are commenced by an attendable summons. The 
 different forms of summons applicable will be 
 found infra. Appendix of Forms. When the pro- Proceed- 
 
 T'li 1 T 11 '"S^ under 
 
 ?eedmg is taken under a decree, or decretal order, decrees or 
 
 . , _ , . I . decretal 
 
 it commences with a first summons, which is orders. 
 taken out by the party having the carriage of 
 the order, upon which summons the course of 
 proceeding under the decree, or decretal order, is 
 arranged, and directions are given as to the 
 parties to attend. This first summons is exactly 
 similar to the warrant to consider the decree 
 under the old practice before the abolition of the 
 Masters' offices. The principal matters which what pro- 
 
 '■ '- _ ceeamgs 
 
 usually come before the chief clerk in prosecuting taken by 
 
 •> . chief clerk 
 
 a decree, or decretal order, are the taking of under de- 
 
 • . . -I. T 1 crees or 
 
 accounts and the general inquiries directed by decretal 
 the order; the advertising for creditors, next of 
 kin, and other claimants, and the investigation 
 of their claims; the appointment of a receiver 
 when not actually appointed by the order which 
 
338 THE NEW CHANCERY PRACTICE. 
 
 authorizes the appointment of a receiver, the 
 usual proceedings under decrees for sale, and 
 particularly the investigation of the title, and 
 settling the conditions of sale with the aid and 
 opinion of the conveyancing counsel, the prepa- 
 ration and settling of the deeds of conveyance in 
 the like manner, certifying as to the parties T)y 
 whom the deeds of conveyance are to be executed 
 in cases tinder the Lands Clauses Acts for the 
 guidance of the Accountant General, the prepar- 
 ing certificates on the result of sales, the regu- 
 lating the payment of the purchase monies, and 
 numerous other proceedings of the like kind, such 
 as certifying the amount of mortgage debts and 
 interest, the granting and renewal of leases, the 
 authorizing distresses for rent, and the bringing or 
 defending actions, directing repairs, and generally 
 all other matters connected with the manage- 
 ment of property. It may perhaps serve to throw 
 light on the ordinaiy course of proceeding under 
 decrees, or decretal Orders, if some examples are 
 . here furnished of proceedings actually taken in 
 the different Judges' chambers within a recent 
 period, in which orders have been made. With 
 this view a few forms of such applications are 
 given in extenso, to wit. 
 
 Various RoUnson V. Turner. Vice Chancellor Tutner. 
 
 forms of 
 
 tioSs'a't ^^^ ^^ parties concerned attend at my chambers 
 
 chambers. }„ ^ ou Monday, the day of 
 
 , at 11 o'clock in the forenoon, on the 
 
BUSINESS AT CHAMBERS. 339 
 
 hearing of an application on the part of the For further 
 defendants, Henry Hall and Cheslyn Hall, for six redeem. 
 months further time for payment of principal, 
 interest, and costs. 
 
 Order made 6th December 1852. 
 Hobinson v. Turner. Vice Chancellor Kindersley. For second 
 
 enlarge- 
 
 Let all parties, &Cj, on the hearing of an ap- "?«»' "f 
 plication on the part of defendants, Henry Hall fedeeni. 
 and Cheslyn Hall, for six months further time to 
 redeem. 
 
 Order made 21st June 1853, as follows: i. e, 
 plaintiff admitting to have received from 
 defendant HaU, ou the 10th day of June 
 inst., 46/. lbs. on account of interest on 
 the said mortgage debt, with the consent 
 of all parties ordered, that on payment 
 by the defendants, or either of them, to 
 the plaintiff of the sum of 1600/., being 
 the amount of principal subsequent inte- 
 rest and costs as agreed to between the 
 parties, at the Rolls Court, Chancery 
 Lane, London, on Wednesday the 7th 
 December, between twelve and one o'clock, 
 the defendants, or either of them, be at 
 liberty to redeem, otherwise to be fore- 
 closed. 
 
 Wright V. Chaffers. Vice Chancellor Turner. ]^";„t'7''- 
 
 Let all parties, &c., on the hearing of an appli- '^^=J^.^^ 
 
 cation on the part of all the defendants except j,"^^^'"*^ 
 
 z 2 
 
340 THE NEW CHANCERY PRACTICE. 
 
 Benjamin Wright and Mary his wife, that the 
 sum of 8000^. now in the trustee's hands should 
 be laid out on the bonds of the corporation of 
 Liverpool, or of the North Western Railway. 
 
 Order made 9th December 1852. 
 
 Wright V. Chaffers, Wright v. Houghton. Vice 
 Chancellor Turner. 
 
 Let all parties, &c. on the hearing of an appli- 
 cation on the part of all the defendants except - 
 Benjamin Wright and Mary his wife, that the 
 8000?. recently paid by the Lancashire and York- 
 shire Kailway Company should be laid out in 
 consols in the names of the trustees and executors 
 of the will of Thomas Houghton, the testator, in 
 the pleadings mentioned. 
 
 Order made 29th November 1852. 
 
 For leave Golder V. Goldcr. Vice Chancellor Turner. 
 
 foriredi- . ^ 
 
 tor to at- Let all parties, &c. on the hearing of an appli- 
 ceedings. cation ou the part of Joseph Baxendale, a creditor 
 of the testator in the pleadings named, whose 
 debt has been allowed, for leave to attend all 
 proceedings in the Master's office, under the 
 decree of the 18th July 1851, at his own expense, 
 and for that purpose that it may be ordered, that 
 notice of all proceedings may be served upon 
 him, or upon Messieurs Tatham, Upton, Upton, 
 and Johnson, of No. 20, 'Austin Friars, , London, 
 
BUSINESS AT CHAMBERS. 341 
 
 his solicitors, by any party to this suit promoting 
 the same, and that all parties do furnish him or 
 his solicitors with such copies as he or they may 
 desire, on his or their paying the proper charges 
 for the same. 
 
 Order made 25th November 1&52. 
 Wilmer v. Kidd. Vice Chancellor Wood. Ti^' s*"*- 
 
 • riff be 
 
 Let all parties, &c, on the hearing of an appli- "'thdraw" 
 cation of Francis Barchard, Esq., Sheriff of the [""^Hf 
 County of Sussex, to whom a writ oi fieri fadas °}!^f^gji, 
 has been directed and issued, commanding him to receiver, 
 levy a certain debt of the goods and chattels of 
 John Kidd, one of the defendants in this cause, 
 that Charles Paget, the receiver appointed by 
 this Court in this cause, shall point out to the 
 said sheriff specifically, what goods and chattels 
 he claims to be in his possession^ as the estate 
 and effects of John Kidd, the testator in this 
 cause named, and that the Court may make such 
 order in the premises as shall be for the relief of 
 the said sheriff therein. i 
 
 Order made on the 14th of July 1853, that 
 the receiver do within seven days state by 
 writing to the plaintiff, what part of the 
 goods and chattels on the premises late in 
 . the possession of the defendant John Kidd, 
 he claims as such receiver, and that the 
 sheriff do withdraw from the possession of 
 such goodis" and chattels.- 
 
^42 
 
 THE NEW CHANCEKY PRACTICE. 
 
 For refer- Smith V. Gibbous. Vice Chancellor Wood. 
 
 eme to 
 
 Sir to ^^* ^^ parties, &c. on the hearing of an appli- 
 settiefees <jation on the part of the defendant Benjamin 
 ancing Gibbons, that he may be at liberty to obtain the 
 
 counsel. i j -i 
 
 draft conveyance as settled by Mr. Brodie,the con- 
 veyancing counsel, to whom the same is referred, 
 and to pay the sum of 15Z. lis. 6(?., his fees for 
 settling the same, or to show cause why it should 
 not be referred to the taxing Master to certify 
 what are the proper fees to be paid for the same. 
 
 Order made the 31st May 185.3, that it be 
 referred to the taxing Master in rotation, 
 to regulate the conveyancing counsel's fee 
 for settling draft conveyance under the 
 Order dated the 6th day of December 1852. 
 
 ftnig"' -^^^^^* "^- ^'^'^*- ^^^ Chancellor Turner. 
 Master "to" Let all parties, &c. on the hearing of an appli- 
 chambeVs. cation for an order, that, notwithstanding the 
 decree made in this cause referring it to the 
 Master of this Court to whotri this cause stands 
 » referred, to make certain inquiries, with the usual 
 directions for the production upon oath of aU 
 deeds papers and writings by and for the ex- 
 amination of the parties, as the Master should 
 direct, and before which said Master the said 
 decree has not been taken nor has the same been 
 in any matter prosecuted, the said inquiries 
 should be made before me as the Vice Chancellor 
 who heard the said cause, and pronounced the 
 said decree, and that, in all other respects the said 
 
BUSINESS AT CHAMBERS. 343 
 
 decree should be prosecuted before me in my 
 chambers, and otherwise, as I shall direct. 
 
 Order made 6th December 1852. 
 
 In Lwpton V. Thornhill, the course taken at 
 chambers was this. After an order obtained by 
 the plaintiff at the Rolls, as of course to change 
 the town agent of the plaintiff's solicitor, the 
 following application was made : 
 
 Lupton V. Thornhill. Vice Chancellor Wood. Fordeii- 
 
 '■ very up of 
 
 Let all parties, &c. on the hearing of an appli- P'P'"''- 
 cation on the part of the plaintiff to show cause 
 why Thomas Shepherd Noble, the plaintiff's late 
 agent, should not deliver up the papers in this 
 suit to Mr. Charles Fiddey upon payment of the 
 costs due to him as such agent in this matter. 
 
 The Vice Chancellor Wood, before whom the 
 matter was brought personally, said, if the Rolls' 
 order were allowed to stand it must be taken to 
 be acquiesced in, and the order to deliver the 
 papers was, of cours^e, upon the application of 
 counsel, however, in open Court the Rolls' order, 
 was discharged for irregularity, and, consequently, 
 after several adjournments, while the motion to 
 discharge the Rolls' order was pending, the ap- 
 plication at chambers fell to the ground. 
 
 The course of proceeding in chambers for the Course of 
 
 - , . , procoedinff 
 
 appointment oi a receiver under a decree or ontheap- 
 decretal order, directing a fit person to be of a re-"" 
 
 . , 1 . . r 11 ' ceiver 
 
 appointed receiver is as tollows. 
 
344 THE NEW CHANCERY PRACTICE. 
 
 under order , Affidavits Hiust be brought in setting out the 
 particulars of the property, rental, &c., the name 
 and fitness of the proposed receiver, and the 
 names of the person or persons proposed as 
 sureties, together with an affidavit of the suffi- 
 ciency of the sureties. 
 
 These affidavits should be left at the chambers 
 two clear days before the time of attendance 
 fixed for the appointment of the receiver in order 
 that the chief clerk may see that the matter is 
 ready for hearing by himself or by the Judge. 
 
 Upon the receiver being duly appointed either in 
 
 Court or at chambers, as the case may be, the only 
 
 remaining proceeding is to approve his securities. 
 
 Form of The form of order originally adopted on admi- 
 
 \n adminis- nistratiou claims by next of kin, after directing the 
 
 claims by usual inquiry as to the next of kin, proceeded to 
 
 before°k^e" di^ct that, if all the next of kin should be found 
 
 Acte""^ to be duly served with writs of summons, then 
 
 This form the accouuts Were to be taken. This form is not 
 
 appSie. ^^'^'^ applicable. The New Procedure Act provides 
 
 that a suit for the administration of the estate 
 
 of an intestate may be brought by or against 
 
 any one of the next of kin. 
 
 The decree, therefore, simply directs an inquiry 
 who were the next of kin of the intestate at the 
 time of his death ; and whether any of them are 
 dead, and if so, who are their personal repre- 
 sentatives; and then it goes on to direct that the 
 accounts of the estate shall be taken. Where 
 any of the next of kin are out of the jurisdiction, 
 
BUSINESS AT CHAMBERS. 345 
 
 or cannot be served, the Judge in chambers is 
 enabled by the Greneral Orders of the Court, to 
 dispense with service of the decree. The course 
 is this: having ascertained who are the parties 
 interested in the estate, upon the first summons 
 before the Judge in chambers to proceed with 
 the decree ; the Judge will consider any circum- 
 stances which may be brought before him, with 
 reference to any of the parties, and direct who 
 are the parties to be served, and where service 
 on any of them may be dispensed with. De DeSaiin- 
 
 •> ^ hardy. 
 
 BaHnhard v. Bullock, (a) Buiioct. 
 
 The usual form of order made at chambers on what 
 the appointment of a receiver will sufficiently ap- made in 
 pear from the following minute of an order made originating 
 by the chief clerk on the appointment of a berl*" 
 receiver, pursuant to an order of the Court. In 
 re The Right Hon. W. E. Lord Kensington, 
 deceased. Bacon v. Ford, to wit. 
 
 The Master of the Rolls at Chambers. 
 
 16th August 1853. 
 Attended the solicitors for all parties. Read 
 order dated 14th July 1853. A. B. of 
 having been approved receiver and entered into 
 a recognizance, dated the 4t"h day of August 1 853. 
 Ordered upon applicationof plaintiff that A. B. 
 be appointed receiver of the rents and profits of 
 the real and leasehold estates, and to collect and 
 get in the outstanding personal estate of W. E. 
 Lord Kensington, the testator in this cause named, 
 (a) 9 Hare, Appendix, p. xiii. 
 
346 THE NEW CHANCERY PRACTICE. 
 
 The receiver to pas3 his account on the 1st 
 day of Ea-ster Term in each year, and pay his 
 balance within a month after. 
 To Mr. Latham, Registrar. Chief Clerk. 
 
 Usual An example of the mode of proceeding under 
 
 order for , 
 
 payment of a decree for sale will be afforded by the following 
 monies into minute of an order made by the chijef clerk on 
 under de- three Separate summonses taken out by pur- 
 saie. chasers of different lots for liberty to pay their 
 
 purchase money into Court, and to be let into 
 
 possession, to wit, 
 
 Master of the Rolls at Chambers. 
 
 9th February 1853, 
 
 Upon the application of A. B. the purchaser of 
 lot 1, CD. lot 2, E. F. lot 3, Messrs. X. 
 and Y. attended, for the purchasers and for the 
 plaintiffs and defendants. 
 
 Read Order dated 24th July 1852, Report 
 of Master Senior dated 4th February 1853. 
 
 Order dated 4th February 1853, an affidavit 
 of filed 1st January 1853, and the exhibits 
 
 A. and B. therein referred to. Title accepted. 
 
 Order made that the several applicants do pay 
 in their respective purchase monies as applied for 
 by the annexed summonses, with interest at 51. 
 per cent, from the 14th of May 1852 to the time of 
 paying in (the amount to be verified by affidavit). 
 To Mr. Latham, Registrar. Chief Clerk. 
 
 Special Jn framing conditions of sale, where a sale is 
 
 condition 
 
 nowusuaiiy made under a decree of the Court, the following 
 
BUSINESS AT CHAMBERS. 347 
 
 special form as to time and mode of completing inserted in 
 
 ,1 , . 11 • 1 p conditions 
 
 the purchases, is now nsually mserted as one of of sale. 
 the conditions, being the form which has been 
 approved and adopted at the different Judges' 
 chambers, to wit, 
 
 "That the purchaser of each lot shall imme- 
 diately pay into the hands of Messrs. A. and B. 
 a deposit of 20?. per c^nt. in part of the purchase 
 money, and on or before the 24th day of June 
 1853, pay the balance of his or her purchase 
 money into the Bank of England, in the name 
 and with the privity of the accountant general of 
 the Court of Chancery, to be there placed to the. 
 credit of the cause, " C. D. v. E. F.," but if 
 from any cause whatsoever the same shall not be 
 so paid, the purchaser shall pay interest after the 
 rate of bl. per cent, per annum, on his or her 
 purchase money, from that day until the same 
 shall be actually paid: and the purchaser shall 
 be entitled to the possession, or to the rents and 
 profits of the premises comprised in his or her 
 lot, on and from the 24th day of June 1853, 
 down to which day all outgoings will be cleared." 
 
 " The chief clerk of the Judge to whose Court 
 this cause is attached will, after the sale, proceed 
 to certify the result ; and Monday, the 30th day 
 of May, at twelve of the clock at noon, is 
 appointed as the time at which the purchasers 
 may attend by their solicitors at the chambers of 
 the said Judge in the Rolls Yard, Chancery Lane, 
 Middlesex, to settle such certificate. The certi- 
 
348 THE JTEW CHANCERY PBACTICE. 
 
 ficate will then in due course be signed and filed, 
 and become binding without further notice or 
 expense to the purchasers." 
 Abstractor By the 56th section of the New Procedure 
 kid before Act 15 & 16 Vict. c. 86, before any sale is made 
 andnl" Under a decree or order of the Court, an abstract 
 counse . ^£. ^j^^ ^.^j^ must be laid before one of the con- 
 veyancing counsel for his opinion thereon, that 
 the Court may be enabled to give such directions 
 as may be necessary, respecting the conditions 
 of sale and other matters connected with the 
 sale, (a) 
 Sale to be By the 12th General Order of the Court of the 
 
 with appro- i t r r\ i 
 
 bationand 16th day of Octobcr 1852, where an order is 
 
 rectionof made directing any property to be sold unless 
 
 " ^ ' otherwise ordered, the same is to be sold with 
 
 the approbation of the Judge to whose Court 
 
 the cause or matter is , attached, to the best 
 
 purchaser that can be got for the same, to be 
 
 allowed by such Judge, and all proper parties 
 
 are to join therein as such Judge shall direct. 
 
 Course now The 56 th scction of the New Procedure Act 
 
 tak^n on 
 
 re-invest- 15 & 16 Vict. c. 86, directs that on all sales 
 
 ment in 
 
 (cf) It is generally understood that the rule as to refCTring 
 the title to one of the conveyancing counsel of the Courtjis not 
 imperative, either on purchases or sales made under the decree 
 or order of the Court, except where some of the cestuis qvs 
 trust are under the disabiliiy of infancy or coverture. 
 
 In all other cases the parly having the carriage: of the order 
 may choose his own conveyancing counsel. At least this is 
 the rule acted on at the Eolls. It has been held also at the 
 Eolls, ia a case of Matthews v. Swallow, that the rule as to 
 the conveyancing counsel does not apply to suits for specific 
 performance of contracts. 
 
' BUSINESS AT CHAMBERS. 349. 
 
 under the decree or order of the Court, an land of 
 abstract of the title shall be laid before one of into court 
 the conveyancing counsel. The same course is Lands 
 also taken on the reinvestment in land of monies Act!^*' 
 which have been paid into Court under the 
 Lands Clauses Consolidation Act, as the purchase 
 monies for lands taken by railway companies. 
 The Court requires fi^st to be satisfied by affi- 
 davit that the purchase proposed to be made is a 
 fit and proper investment of the fund, and having • 
 been satisfied by the evidence on that point, di- 
 rects a note to be taken by the registrar that the 
 Court approves of the proposed purchase, and 
 the petition for the reinvestment of the fund then 
 stands over until the opinion of one of the con- 
 veyancing counsel, as to the title, is produced. 
 No order of reference is drawn up. The par- 
 ticular conveyancing counsel, to whom the case 
 is to go, is determined by a rota as settled by 
 the General Order of the 16th of December 1852, 
 unless there is any special reason for deviating 
 from that order of rotation. The fact of the 
 approval of the title is required to be verified by' 
 affidavit, and upon that being done the registrar 
 takes a note that the Court is satisfied on the 
 point of title, and the petition is ordered further 
 to stand over, that the conveyancing counsel may 
 settle the draft conveyance. The Court will not case to be 
 make the order prospectively for payment of the again'to" 
 money, on the purchase deed being settled by deed ^Jy 
 the conveyancing counsel, but the case must be ti'on!""""'" 
 
350 • " THE NEW CHANCEEY PRACTICE. 
 
 mentioned again when the deed is prepared for 
 
 execution. In re Caddick's Settlement (a). Ex 
 
 parte Rector of South Collingham (b). 
 
 Engross- The course on the reinvestment of monies 
 
 deed as which havc been paid into Court by a railway 
 
 S6lti6u DV 
 
 convey- Company upon a compulsory taking^ of land, is 
 counsel this. The proposed re-investment having been 
 fnCourt. sanctioned by the Court, and the title approved by 
 the conveyancing counsel, an application is then 
 made to the Court that the purchase money may 
 be paid out upon the execution of the conveyance. 
 The engrossment of the deed as settled by the 
 conveyancing counsel, duly verified by affidavit (c), 
 is then produced in Court, a blank being left for 
 the insertion of the recital of the order of the 
 Court for the payment of the purchase money. 
 
 The order is then made, that upon completion 
 of the engrossment by the insertion therein of a 
 recital of the order of the Court, and upon due 
 execution of the conveyance by all proper parties, 
 , verified by affidavit, the sum of £ be 
 
 paid out to A. B. the vendor. lie Caddick's 
 Settlement, (d) 
 When two It sometimes becomes necessary that two orders 
 
 orders ™- , , j i j . , , . 
 
 quired. shouid DC drawn up, With this view, viz., that 
 the fact of the proceeding being taken under the 
 direction of the Court may be recited in the deed 
 
 (a) 9 Hare, Appendix, p. ix. 
 
 (6) Ibid. p. xii. . - _ 
 
 (c) Ibid. Appendix, p. kxxv. See form, of afiS davit, wi/ro. 
 Appendix of Forins. 
 
 (d) Ibid. Appendix, p. ix. 
 
BUSINESS AT CHAMBERS. '• 351 
 
 of conveyance, or lease, or other instrument 
 •which is required to be executed. Thus, in 
 Harvey v. Brooke {a), which was a suit for the saneyv. 
 
 'J* o n , n t r Brooke, 
 
 specmc performance oi a covenant for renewal of 
 a lease, rendered necessary by the infancy of one 
 of the parties by whom the new lease was to be 
 gKinted, the order directed the lease to be exe- 
 cuted by aU proper pajties, and that the fine on 
 the renewal should be paid into Court in the 
 suit. Upon the draft lease being submitted to 
 the conveyancing couilsel, he made a note in the 
 margin that it ought to recite the declaration of 
 the Court of the plaintiff's right to the renewal 
 and the order for paying the amount of the fine 
 into Court, and that it had been paid in pursuant 
 to the order. 
 
 No order had been drawn up when the cause 
 was directed to stand over to settle the draft lease. 
 
 The Vice Chancellor Turner said, that in this 
 case two orders could not be avoided. 
 
 The order declaring the right to renewal and 
 for the payment of the fine into Court might be 
 passed as of this day, and the cause might then 
 stand over to a future day. Upon the order now 
 made being drawn up, and the payment made 
 into Court under it, the order and the payment 
 of the money might be recited in the deed, and, 
 upon the cause being again in the paper, the 
 plaintiff would be prepared with an affidavit of 
 the correctness of the engrossment and the certi- 
 (a) 9 Hare, Appendix, p. xi. 
 
352 THE NEW CHANCERY PRACTICE. 
 
 ficate of the Accountant General of the payment 
 of the money, and the Court might then direct 
 the registrar to sign a memorandum that the 
 deed then produced is the deed which the infant 
 defendant is to execute. 
 When In all cases of the re-investment in land, of 
 
 deeds of 
 
 conveyance monics which havc been paid into Court on pur- 
 
 adoptcd at 
 
 once as chases bv railway companies, the deeds are settled 
 
 settled by J i ' 
 
 the con- by the conveyancing counsel, and such settle- 
 
 veyancing ^ , ,-,.., •. 
 
 counsel; ment OT the conveyance is ordinarily acted upon 
 proved by and adopted at once, without requiring the frame 
 of the deeds, as settled, to be submitted to the 
 judgment of the Court. But in suits for the 
 appointment of new trustees, and for the convey- 
 ance and assignment of the trust property to the 
 new trustees, particularly where there has been 
 a breach of trust, the deeds will be approved by 
 the Judge of that branch of the Court to which 
 the cause is attached. Blaxland v. Blaxland{a). 
 As to limit Considerable difficulty has been felt in some 
 
 and extent •' 
 
 of jurisdic- quarters as to the exact limits and extent of the 
 
 tion at ^ 
 
 chambers, jurisdiction of the Judge, or the chief clerk at 
 chambers, if indeed there are any limits at all to 
 that jurisdiction. 
 
 The question as to the extent of that jurisdic- 
 tion was distinctly raised in a case of ThornhiU 
 Thornhiii y. ThornhiU (b), in a matter connected with the 
 
 T. 
 
 ThornhiU. usuEil reference to the conveyancing counsel. 
 
 In that case as reported in the last volume of 
 the Jurist, it was held by the Vice Chancellor 
 
 (a) 9 Hare, Appendix, p. Ixviii. 
 (S) 17 Jur. 252. 
 
BUSINESS AT CHAMBERS. 353 
 
 Kindersley, that under the 40th section of the 
 -Master in Chancery Abolition Act 15 & 16 Vict. 
 c. 80, the Court cannot act on the opinion of the 
 conveyancing counsel in the case of an exchange. 
 His Honor observed, that the woi-ds of the section 
 were, " the investigation of the title to an estate, 
 with a view to an investment of money in the 
 purchase or on mortgage thereof, or with a view 
 to a sale thereof." 
 
 His Honor held in the same case that under a view taken 
 Private Act (Thornhill's Estate Act 15 & 16 Vict. A^pjli • 
 c. 20) which enabled the Court, upon application rAorUara 
 in a summary way in the matter of the act, to ^*'*'* '^'"" 
 order an inquiry to be made before a Master for 
 certain purposes, and under the Master in Chan- 
 cery Abolition Act 15 & 16 Vict. c. 80, he had 
 no jurisdiction to direct the inquiry to be taken 
 at chambers. 
 
 The Lords Justices, however, on application, 
 thought that the case came within the spirit of 
 the above act, and that the inquiries ought to 
 be taken at chambers (a). 
 
 Their Lordship's attention was not drawn to 
 the 40th section of the act 15 k, 16 Vict. c. 80, 
 with reference to its extending to the case of an 
 exchange, the parties acquiescing in the decision 
 of the learned Vice Chancellor on this point, 
 which may now be considered as settled. 
 
 The substantial question raised in the case of ^^y° ^^ 
 («) 17 Jur. 252 ; S. C. 21 L. T. 204. 
 A A 
 
354 THE NEW CHANCERY PRACTICE. 
 
 _ ThomhiU'a Estate Act, viz., as to the extent of 
 
 the juris- p i t t ... ■• 
 
 diction the junsaiction of the Judge sitting at chara- 
 limits of bers, is one upon which opinions may well differ, 
 and Gene- and possibly Hiost practitionefs will incline to the 
 view taken by his Honor the Vice Chancellor 
 Kindersley in that case, not so much as to the 
 mere point decided, with reference to the par- 
 ticular Private Act but with reference to the 
 prudence and policy in general of confining the 
 jurisdiction at chambers strictly within those 
 limits which have been defined by the express 
 terras of the Master in Chancery Abolition Act, 
 and the rules and orders made pursuant thereto, 
 which have been agreed to and adopted with the 
 concurrence of all the equity Judges. 
 Ordinary With respect to proceedings originating by 
 
 business 
 
 transacted summons at Chambers, and not taken pursuant to 
 bers where any decrce or decretal order, the following 
 origfnates^ miuutes of orders which have been made within 
 a very recent period, may perhaps be usefully 
 introduced here, as showing the nature of the 
 business ordinarily transacted by the chief clerks, 
 though they by no means afford a complete 
 synopsis of all the various applications by way of 
 interlocutory proceedings in suits, and otherwise, 
 which are occasionally brought before them. 
 
 These minutes are transmitted to the registrar 
 to enable him to draw up and pass the order. 
 The following are a few specimens of such mi- 
 nutes of orders, to wit, 
 
 by sum- 
 mons. 
 
BUSINESS AT CHAMBERS. 553 
 
 Minute' of orders made by chief clerk on the Usual 
 application of the defendants for production by production 
 the plaintiff upon oath of documents relating to ments. 
 the matters in question in the cause. Bromhead 
 V. Vanse. 
 
 Master of the Rolls at Chambers. 
 
 18th February 1853. 
 Attended Mr. T. for plaintiff. Mr. B. for de- 
 fendants, E. V. and S. V. Usual order made. 
 The aflSdavit to be made within seven days. 
 
 Chief Clerk. 
 To Mr. Colville, Registrar. 
 
 Minute of order made by chief clerk on the Order for 
 
 appoint. 
 
 application of an infant by his next friend for mentof 
 
 guardians 
 
 the appointment of guardians and for an allow- and aiiow-- 
 ance for maintenance. In Re Caldecott mainte- 
 
 Master of the Rolls at Chambers, 
 
 16th March 1853. 
 Attended Messrs. J. for applicants, and also 
 for the paternal uiide of the infant. 
 
 Read office copy of and of both 
 
 filed, &c. Office copy affidavit of filed, 
 
 &c. Office copy of filed, &c. 
 
 Order made for the appointment of 
 and Elizabeth his wife to be guardians of the 
 person of the infant G. C. Caldecott. 
 
 12/. Is. to be paid for past IMinteiiance, from 
 
 26th October 1852 to 25th March 1853, and 50/. 
 
 per annum from 25th March 1853 to 25th March 
 
 1855, to be paid for the maintenance, education 
 
 A A 2 
 
 nance. 
 
356 
 
 THE NEW CHANCEBY PKACTICE. 
 
 and support, of the infant, the same to be paid 
 half-yearly out of the income arising from the 
 real estate of the said infant. The costs of, and 
 occasioned by, the application as between soli- 
 citor and client, to be taxed and paid out of the 
 
 said income of the said infant. 
 
 Chief Clerk. 
 To Mr. CoUis, Registrar. 
 
 Order for Minute of Order made by the chief clerk on a 
 
 increased 
 
 mainte- summons taken out by the guardian of infants 
 
 nance. « • i . 
 
 tor increased maintenance. 
 
 Master of the Rolls at Chambers, 
 
 24 June 1853. 
 Attended Messrs. G. for all parties. Read 
 orders dated, &c. Office copy affidavit of 
 
 filed, &c., and office copy affidavit of 
 
 filed, &c. 
 
 Order made as within applied for, the increased 
 
 maintenance to commence as from the 24th of 
 
 February 1853, and, instead of taxing costs, 
 
 12?. 15s. 4rf. to be allowed. 
 
 Chief Clerk. 
 To Mr. Bichnell, Registrar. 
 
 Order for 
 allowing 
 the whole 
 income for 
 mainte- 
 nance. 
 
 Minute of Order made by the chief clerk on 
 
 a summons taken out by the father of several 
 
 infants for payment to him of the whole income 
 
 of the trust funds to which the infants would be 
 
 entitled for their maintenance and education. 
 
 In Re Crosthwaite (a). 
 
 (a) The whole income of the father was a life interest in 
 335Z. per annum. The whole income of the children was 
 263^ per annum. 
 
BUSINESS AT CHAMBERS. 357 
 
 Master of the Rolls at Chambers. 
 
 26th February 1853. 
 Heard counsel for the applicant, and for 
 A. B. and C. D. the trustees. 
 
 Read office copy affidavit of application, filed, 
 &c., office copy affidavit of A. B., filed, &c. 
 
 Order made as within applied for, and that 
 the costs of all parties 'be taxed and paid by the 
 trustees out of the income. 
 To Mr. Wood, Registrar. Chief Clerk. 
 
 Minute of Order made by the chief clerk on Order dis- 
 
 pensing 
 
 the application of the plaintifi', that the Court wUhrepre- 
 may proceed in the absence of any person repre- of estate of 
 senting the estate of the above-named defendants, person. 
 A. B., who had died intestate, and has no legal per- 
 sonal representative, or that the Court may appoint 
 some person to represent such estate for all the 
 purposes of this suit. Clark v. Berington. 
 Master of the Rolls at Chambers. 
 
 22nd February 1853. 
 
 Attended Messrs. G. for plaintifi' and for 
 defendant. 
 
 Mr. B. for defendants and 
 
 Messrs. W. for defendants and 
 
 Messrs. H. for defendants and 
 
 Read affidavit of filed, &c. 
 
 Order made that this suit be proceeded with 
 in the absence of any person representing the 
 estate of the defendant, A. B., who has died in- 
 testate, and has no legal personal representative. 
 To Mr. "Wood, Registrar. Chief Clerk. 
 
358 
 
 THE NEW CHANCERY PRACTICE. 
 
 Question- 
 able if this 
 order 
 should be 
 made by 
 chief clerk. 
 
 Examples 
 of applica- 
 tions com- 
 monly 
 made at 
 chambers 
 in matters 
 originating 
 by sum- 
 mons. 
 
 Appoint- 
 ment of 
 
 Liberty 
 to bring 
 ejectment. 
 
 The circumstances under which this order was 
 made do not appear. 
 
 It may, perhaps, be questioned whether an 
 order of this kind, as to the representation of thi* 
 estate of absent parties, is within the scope of the 
 ministerial functions usually delegated to the 
 chief clerk, and would not more properly be 
 made in all cases with the assistance of counsel 
 in open Court. 
 
 It is not easy to enumerate the various 
 applications which are made at chambers in the 
 progres-i of suits. The following orders have 
 been made within the last year at the Rolls : 
 
 In Stevens v. Wanklin, on the 19th November 
 1852, an order was made on the application of. 
 the plaintiff appointing an examiner for taking 
 the examination of witnesses in the cause. In 
 Williams v. Williams, which has been referred to 
 in a preceding Chapter on Evidence, an order was 
 made on the 27th April 1853, for the appoint- 
 ment of an examiner to cross-examine a party 
 who had made an affidavit in support of a 
 motion for a decree. 
 
 Upon the case being brought before the Master 
 of the Rolls in open Court, his Honor decided 
 that the order was rightly made. 
 
 In Smith v. Upton an order was made on the 
 8th July 1853j that the defendants should be at 
 liberty ,to bring an action of ejectment. In 
 Mey.rick v. Laws a like order was made on the 
 1st August 1853, that the defendants should be 
 
BUSINESS AT CHAMBERS. 359 
 
 at liberty to bring an action of ejectment, and 
 
 in Soamey. Roiers an order was made on the Liberty to 
 
 ■ grant lease. 
 
 28th July 1853, that the plaintiffs should be at 
 liberty to grant a lease. 
 
 In Overbury v. Teale, on taking the accounts Order 
 the chief clerk suggested a compromise, to which proceed- 
 the plaintiffs assented, and the same having been terms of 
 approved by the Judge, the following minutes of mise^ " 
 order were sent to the registrar, to wit, 1853, 
 February 23. Order made, that upon payment 
 of 350/. by the defendant Edward Teale to the 
 plaintiff N. Overbury, all further proceedings . 
 under this claim be stayed, and all accounts 
 between the parties or between the defendants 
 and Messrs. Dickson and Overbury be treated as 
 finally settled. Each party to bear his own costs. 
 
 The preceding orders relating to production of 
 documents, guardianship and maintenance of in- au such 
 
 ^ . o , •"•ders 
 
 fants, the appointment of a representative of the drawn up 
 
 by regis- 
 
 estate of a deceased party, the appointment of an trar. 
 examiner, the bringing actions of ejectment, the 
 granting of leases, and all orders of the like 
 special nature are drawn up and passed by the 
 registrar, like orders made by the Judge in open 
 Court. 
 
 The more simple orders, such as orders for 
 enlargement of time to plead answer or demur, 
 orders to amend bill and the like are not drawn 
 up and passed by the registrar, but are always 
 drawn up at chambers. The forms of these 
 
360 THE NEW CHANCBETT PRACTICE. 
 
 orders are exactly similar to the orders made 
 under the old practice, and it is conceived to be 
 wholly unnecessary to extend the limits of this 
 chapter by giving numerous examples. The 
 following are two of such simple and usual forms 
 of orders, to wit, 
 
 Order for Fortu of Order, giving time to withdraw repli- 
 wUhdrrw cation and amend bill. 
 In^ amend Upon the application of the plaintiff 
 *""■ and hearing the solicitors for the plaintiff and 
 
 for the defendants, and upon reading the affidavit 
 of A. B., made in this cause and filed on the 
 day of &c. 
 
 It is ordered that the plaintiff be at liberty to 
 withdraw the replication filed in this cause and 
 to amend his bill. 
 
 And it is ordered that the plaintiff do pay 
 to each of the above-named defendants the sum 
 of for the costs of this application. 
 
 Order to Form of order to enlarge publication. 
 
 ■ pnbUtation. It is Ordered that publication of the deposi- 
 tions of witnesses be suspended, and that the 
 time for closing the evidence in this cause be 
 enlarged until the second day of next Hilary 
 Term. And it is ordered that the costs of this 
 application be costs in the cause (a). 
 
 (a) The order to enlarge publication may be made upon 
 the terms that the plaintiff be at liberty to set down the 
 cause for hearing in the meantime. 
 
BUSINESS AT CHAMBERS. 361 
 
 With respect to the present practice on the Order for 
 usual application for an enlargement of the time ment^oT 
 to answer, it may be observed here, that upon answer. 
 the 21st General Order of the 21st of December 
 1833 being discharged by the Orders of May 
 1845, the Masters adopted the practice of im- 
 posing upon a defendant under special circum- 
 stances the terras of ccaisenting to a sequestration, 
 but the eflFect of a sequestration is so serious, 
 particularly as it comes into force immediately 
 upon exceptions to the answer being allowed, 
 that it has been since considered that these are 
 terms which ought not to be imposed upon any 
 defendant willing to answer. 
 
 In Parker v. Bloxam (a), the Master of the On what 
 
 /> T • terms. 
 
 Rolls at chambers refused to impose such terms 
 upon a defendant, observing that they were much 
 too severe. 
 
 In general no other terms will now be imposed 
 beyond the usual penalty of paying the costs of 
 the application, which would ordinarily operate 
 as a check upon such applications being made 
 repeatedly, or for the mere purpose of vexation. 
 
 By the 47th section of the New Procedure Act when 
 15 & 16 Vict. c. 86, any person claiming to be onsuio!* ' 
 a creditor of any deceased person, or interested ^mfnis- 
 under his will, may apply for and obtain in a reli estate. 
 summary way, in the like manner as is pro- 
 fa) At chambers, 24th Januaiy 1853. 
 
362 THE NEW CHANCEKY PRACTICE. 
 
 vided with respect to the personal estate, an 
 order for the administration of the real estate of 
 a deceased person, where the whole of such real 
 estate is by devise vested in trustees, who are by 
 the will empowered to sell such real estate, and 
 authorized to give receipts for the rents and 
 profits thereof, and for the produce of .the sale 
 of such real estate. 
 Construe The new and very summary remedy now 
 47th sec- applied to the case of real as well as personal 
 act. estate is limited to those cases, where the fee is 
 
 devised to trustees, and they are empowered to 
 sell and give receipts. It is presumed that this 
 section of the act would receive the same con- 
 struction, as was put under the former practice 
 on the 30th Order of August 1841. The trustees 
 must have the legal estate, and there must be an 
 immediate and unqualified power of sale. If the 
 power of sale is not to arise until after the deter- 
 mination of some life estate, or if any consent 
 is required to the exercise of it, the clause would 
 not apply. See Lloyd v. Smvth{a), and Cox v, 
 Barnard, (b) 
 
 In all other cases except those within the pro- 
 visions of the 47th section of the Act, where the 
 property is vested in- trustees, who are em- 
 powered tp sell and give receipts, the creditor, 
 though now by law entitled to a charge on the 
 
 (a) 13 Sim. 457. 
 (S) 5 Hare, 253. 
 
BUSINESS AT CHAMBEES. 363 
 
 real assets for payment of his debt, can only 
 obtain, on the proceeding by way of summons, 
 the order contemplated by the 45th section, i. e., 
 an order for the administration of the personal 
 estate of his deceased debtor. 
 
 In this there appears to be something anomo- 
 lous; but probably the difficulty of extending 
 the creditors' remedy generally to the real estate 
 in the proceeding by way of summons, is occa- 
 sioned by the difficulty which, would necessarily 
 arise with respect to parties. 
 
 The ordinary administration decree, even in a 
 suit by way of bill or claim, when instituted by 
 a simple contract creditor, only extends to the 
 administration of the personal estate. 
 
 In Gregory v. Atkinson (a), which was a credi- 
 tor's suit for the administration of the personal 
 estate, the Vice Chancellor Stuart said it appeared 
 to him to be a matter for consideration, whether 
 some alteration in the ordinary administration 
 decree would not be desirable, now that a simple 
 contract creditor was entitled to payment out of 
 the real estate, the ordinary decree only directing 
 an administration of the personal estate, though 
 there might be real estate. 
 
 The question as to inserting special directions Extent of 
 and inquiries in decrees under the common sum- diction Vt 
 mons for the administration of the real and per- '^'"'"''^^"■ 
 
 («) 20 L. T. 140. 
 
Madduchs, 
 
 364. THE NEW CHANCERT PRACTICE. 
 
 sonal estate of a testator has been before touched 
 upon in this chapter. 
 
 How far the Judge at chambers is enabled 
 under the 45th and 47th sections to direct ad- 
 versely any special inquiries, where the proceed- 
 ing to obtain an administration decree originates 
 at chambers by a summons, has not, it is believed, 
 been yet discussed in open Court; but it is the 
 constant practice to insert in these orders any 
 special inquiries, which may be material under 
 this section. 
 Crawky v. Ill a case of Crawley v. Maddocks, which was 
 attended with rather special circumstances, the 
 question as to the construction of the 47th sec- 
 tion of the New Procedure Act 15 & 16 Vict. 
 c. 86, was considered by the Vice Chancellor 
 Wood at chambers. 
 
 The circumstances were these. The testator, 
 James Maddocks, by his will, gave and be- 
 queathed all his personal estate unto his wife, 
 Mary Ann Maddocks, -for her own absolute use 
 and benefit. He also gave and devised all his 
 real estate whatsoever and wheresoever, subject 
 nevertheless, in aid of his personal estate, to the 
 payment of his debts, and subject, in exoneration 
 of the personal estate, to the mortgage debts then 
 charged thereon respectively, and the interest 
 thereof, to his said wife her heirs and assigns, 
 upon trust for her own use and benefit during her 
 life, she maintaining and educating thereout his 
 
BUSINESS AT CHAMBERS. 365 
 
 child or children by her who might be living at the 
 time of his decease, or might be born in due time 
 afterwards until they should respectively attain 
 the age of twenty-one years, and from and imme- 
 diately after the decease of his said wife upon 
 trust for the benefit of the children in the man- 
 ner therein mentioned, and from and immediately 
 after any such default or failure of children or 
 issue as therein mentioned upon trust for his 
 said wife her heirs and assigns, for her and their 
 own absolute use and benefit, subject neverthe- 
 less as to his property on the north side of 
 Wright Street, in Liverpool aforesaid, to the 
 payment thereout of the several sums of money 
 specified in his will, (which were given to several 
 married women for their separate use, with power 
 to them to give receipts, and which sums respect- 
 ively he directed to be paid within five years after 
 his decease without interest) and he declared that 
 it should be lawful for his said wife at any time 
 during her life, or for her heirs or assigns by 
 devise or otherwise after her decease, during the 
 minority of any child or children or issue, who 
 should be entitled to his said real estate or any 
 part or share thereof under the trusts therein- 
 before contained, to sell and dispose of his said 
 real estate or any parts or parts thereof together 
 or in lots by public auction or private contract, 
 subject to such conditions of sale as she or they 
 should think proper, freed and discharged of, , 
 
366 THE NEW CHANCERY PRACTICE. 
 
 and from all the trusts thereinbefore declared, 
 with power to buy in, and generally in the 
 manner therein mentioned ; and he declared that 
 the receipt of his said wife her heirs and assigns 
 for any money payable to her or themunder or 
 by virtue of his will, should effectually discharge 
 purchasers and all other persons paying money 
 to her or them from all liability to see to the 
 application thereof, and from being responsible 
 for any loss misapplication or nonapplication 
 thereof. 
 
 It was held that this case fell within the 47th 
 section, the testator's widow being at least con- 
 structively a trustee for the purposes of the will, 
 and having the power of sale and of giving 
 receipts contemplated by that section. 
 
 A decree was accordingly made on the common 
 summons at chambers, directing the following 
 inquiries (that is to say) : — 
 
 1. An inquiry whether there was or were any 
 and what child or children of the said tes- 
 tator by the said defendant Mary Ann 
 Haddocks his wife, living at the time of his 
 death, or born in due time afterwards, and 
 any and what issue of any deceased child or 
 children living at the said testator's death, 
 and if so, whether they were respectively 
 living or dead, and if dead, when they respec- 
 tively died, and who were their legal personal 
 representatives. 
 
BUSINESS AT CHAMBERS. 367 
 
 2. An account of the personal estate of the 
 said testator, not specifically bequeathed, 
 come to the hands of the defendant Mary 
 Ann Maddocks, or the hands of any other 
 person by her order or for her use. 
 
 3. An account of the said testator's debts. 
 
 4. An account of the said testator's funeral 
 expenses. « 
 
 5. An account of the said testator's legacies. 
 
 6. An inquiry what part, if any, of the said 
 testator's personal estate was outstanding 
 or undisposed of, and it was ordered that 
 the said testator's personal estate not speci- 
 fically bequeathed should be applied in pay- " 
 ment of his debts and funeral expenses in. a 
 due course of administration, and then in 
 payment of the said legacies given by his 
 will. 
 
 And it was ordered that the following further 
 accounts and inquiries be taken and made (that 
 is to say) : 
 
 7. An inquiry what real estate the said testator 
 was seised of or entitled to at the time of his 
 death. 
 
 8. An inquiry what incumbrances there were 
 affecting the said testator's real estate. 
 
 9. An account of the rents and profits of the 
 said test&tor's real estate come to the hands 
 of the said defendant or to the hands of any 
 
368 ' THE NEW CHANCERY PRACTICE, 
 
 other person- or persons bj'^ her order or for 
 her use. 
 10. And it was ordered that the said testator's 
 real estate, or a sufficient part thereof, as 
 the Judge of the Court to whom the cause 
 was attached should think fit, be sold free, 
 from the mortgages and incumbrances of the 
 mortgagees and incumbrancers who should 
 consent to such sale, and subject to the 
 mortgages and incumbrances of the mort- 
 gagees and incumbrancers who should not 
 consent thereto ; and it was ordered that the 
 money to arise from such sale be paid into 
 the Bank with the privity of the Accountant 
 General of the Court to the credit of this 
 cause, subject to the further order of the 
 Court; and in taking the aforesaid accounts, 
 all just allowances were to be made to the 
 parties, and any of the parties were to be at 
 liberty to apply to the Court as there should 
 be occasion. 
 It is obvious that in this case all the require- 
 ments of the 47th section of the act were in 
 substance and in spirit cornplied with, the tes- 
 tator's widow being more than a constructive, 
 trustee, and having actual trusts to perform, and. 
 having entire legal dominion over the property. 
 
 The case is important, not only as throwing 
 .some light on the construction of the 47th section. 
 
BUSINESS AT CHAMBERS. 3ft9- 
 
 but also as showing that according to the present 
 understanding of the practice, and the view taken 
 by the Vice Chancellor Wood, in common it is 
 believed with the other equity Judges there is 
 jurisdiction to insert any special directions or in- 
 quiries in an administration decree where the pro- 
 ceeding originates with the common summons. 
 
 With respect to those decrees, or decretal Proceed- 
 orders, which direct accounts and inquiries, the decree " 
 case of Saunders v. Walter {a), before the Lord aoconmf 
 Justice Turner when Vice Chancellor, illustrates ^"1'"'^"'' 
 the ordinary mode of prosecuting and acting saunden 
 upon the result of accounts and inquiries by the 
 chief clerk. Upon the cause coming on for 
 fiirther directions, it became a question whether 
 the amount of the residue had been accurately 
 computed upon the report. The Vice Chancellor 
 directed the cause to stand over for a week to 
 ascertain that fact. His Honor said the registrar 
 would take a note that, the case stood over to 
 ascertain whether the finding in the report as to 
 the residue was correct, or in what respect it 
 was deficient, in the same way as applications for 
 the reinvestment of money in Court had been 
 ordered to stand over until the opinion of the 
 conveyancing counsel on the title had been taken ; 
 and he, the Vice Chancellor, would also write a 
 note, not necessarily in any special form, pointing 
 
 («) 9 Hare, Appendix, p. y. 
 B B 
 
370 THE NEW CHANCERY PRACTICE. 
 
 out the question to be ascertained, which the 
 Solicitor in the cailse would deliver to one of the 
 chief clerks of that branch of the Court for his 
 guidance. His Honor declined to direct an ap- 
 portionment of the residue at that time amongst 
 the persons entitled. When the ease was before 
 the Court again he might possibly be able, upon 
 the evidence, to apportion the residue without a 
 certificate by the clerk; or, if not, he might 
 order the Accountant General to act upon the 
 certificate of the clerk. With respect to the 
 suggestion of counsel that it might be material 
 to inquire of wha,t the residue then consisted, 
 and how much arose from principal and how 
 much from interest, he could add those inquiries 
 in chambers if he found it necessary. No more 
 formal minute was required for. the government 
 of the clerk as to the inquiries to be made. 
 
 His Honor observed that he did not refer the 
 
 case of the clerk, but he postponed that part of 
 
 the case to be examined by himself in chambers 
 
 with the assistance of othe clerk. 
 
 When the Where an order directs inquiries tobe prose- 
 
 drecting cuted in chambers, if the inquiry is not grounded 
 
 andTnqui- upon any evidcnce actually before the Court, in 
 
 be drawn t^c cause, there the order must be drawn up for 
 
 "''■ the purpose of authorizing th««hief clerb to 
 
 proceed with the inquiry. This was the mk 
 
 laid down in Kelson v. Kelson (a). 
 
 (a) 9 Hare, Appendix, p. Ixxxvi. 
 
BUSINESS AT CHAMBERS. 371 
 
 A question in the cause was whethfer a settle- 
 ment was Voluntary which was expressed to be 
 made for "divers goods and valuable considera- 
 tions." No evidence had been given on the 
 question of consideration, and the Court was of 
 opinion' that the parties ought to have an oppor- 
 tunity of showing whether there was or was not 
 a valuable consideration for the deed, and the 
 case was adjourned to chambers for that purpose. 
 
 It was subsequently made a question whether 
 there should be an order of the Court drawn up 
 before evidence was received in chambers appli- 
 cable to the inquiry, the registrar doubting 
 whether an order ought to be drawn up, and 
 the chief clerk whether he ought to proceed in 
 the inquiry without such an Order. 
 
 The then Vice Chancellor Turner said he had Keisnn v. 
 spoken with the chief clerk on the subject, and it 
 had been suggested to him, he thought, with 
 - reason, that there was a distinction between this 
 case and that of Saunders v. Walter. In Saunders 
 V. Walter there were several affidavits directed 
 to a very complicated state of things, into which 
 it was not easy to enter fully in Court, and the 
 Vice Chancellor thought that the subject would 
 be more conveniently examined in the first in- 
 stance in chambers. In that case an order was 
 not necessary. In this case the inquiry was not 
 upon any evidence actually before the Court in 
 the cause, but fresh evidence would be necessary, 
 B B 2 
 
372 THE NEW CHANCERY PRACTICE. 
 
 and therefore an order directing an inquiry 
 should be drawn up. There was a fee of 4:1. 
 payable on every decree or decretal order, but it 
 must not be forgotten that many fees of the 
 Court had been abolished." 
 As to fur- jji proceedin&r on an account under a decree 
 
 nisbing ^ ° 
 
 copies of before a Judge in chambers, or before the Master, 
 
 accounts _ _ ° _ _ • /» i 
 
 for the it is uot the practice to require copies of the 
 
 use of the 
 
 Judge at verified accounts which have been lodged by 
 
 chambers. , i /■ • i n /> i 
 
 the accountmg party, to be furnished for the use 
 of the Judge, or Master, or their chief clerks. 
 Cannon v. Eiians (a). 
 
 See also 15 & 16 Vict. c. 80, s. 39, and the 
 23rd, 29th and 44th Orders of the 16th of 
 October 1852. 
 
 A difference of practice formerly prevailed in 
 
 the offices of the Masters on this point, some 
 
 requiring a copy of the verified account to work 
 
 on, which occasioned a considerable increase of 
 
 expense to the parties in the case of a voluminous 
 
 account, others being satisfied with the original 
 
 account without a copy, and others adopting a 
 
 middle course and requiring a partial copy. The 
 
 parties will not in future be put to the expense 
 
 of preparing such copies. 
 
 As to num. By the 8th General Order of Court of the 16th 
 
 several ^ day of October 1852, in all cases in which by any 
 
 andTn"" Order any accounts are directed to be taken or 
 
 («) 10 Hare, Appendix, p. ii, 
 
BUSINESS AT CHAMBEKS. 373 
 
 inquiries to be made, each direction shall be qnirfes 
 numbered, so that as far as may be each distinct by decree. 
 account and inquiry may be designated by a 
 number, and such order is to be in the form set 
 forth in Schedule (C) to those Orders, with such 
 variations as the circumstances of the case may 
 require. 
 
 By the 9th General.Order of Court of the 16th claimants 
 day of October 1852, where an order is made undcr"de-" 
 directing an account of debts, claims, or liabi- JTme fixed" 
 lities, or an inquiry for next of kin, or other tisementf 
 unascertained persons, unless otherwise ordered, 
 all persons who do not come in and prove their 
 claims, within the time which may be fixed for 
 that purpose by advertisement, are to be excluded 
 from the benefit of the order. 
 
 By the 10th General Order of Court of the 16th interest to 
 day of October 1852, Avhere an order was made puted"" 
 directing an account of the debts of a deceased unless ' 
 person, unless otherwise ordered, interest is to be directed' 
 computed on such debts, as to such of them as ^^ '"^"' 
 carry interest, after the rate they respectively 
 carry, and as to all others after the rate of four 
 per cent, per annum from the date of the order. 
 
 The 42nd section of the Master in Chancery as to ob- 
 Abolition Act 15 & 16 Vict. c. 80, provides that St»ce 
 it shall be lawful for the said Court, or any Judge f^t^JJ^' 
 thereof in such way as they may think fit, to pgr™'^*" 
 obtain the assistance of accountants, merchants, 
 engineers, actuaries, or other scientific persons, 
 
374 THE ETEW CHANCERY PRACTICE. 
 
 the better to enable such Court or Judge to de- 
 termine any matter at issue in any cause or pro- 
 ceeding, and to act upon the certificate of such 
 persons. 
 MiUmay v. In the casB o£ Mildmay v. Methuen{a), upon a 
 reference to the Master in an administration suit 
 to take an account of debts and legacies, a claim 
 Avas carried in for a debt due to a builder. The 
 Master being unable to determine the justice of 
 the demand, an action at law was directed. A 
 petition was then presented praying that the 
 order directing an action might be discharged, 
 and that the matter might be referred to the 
 Master, with power to call in the assistance of 
 scientific persons. It was held that under the 
 42nd section of the Masters' Abolition Act, the 
 Court had no right to delegate to the Master the 
 power conferred by that section, but the order 
 directing an action was discharged, and the matter 
 was directed to be heard at chambers when the 
 Judge could avail himself of the machinery of the 
 42nd section of the act. 
 
 The Vice Chancellor Kindersley, in giving 
 judgment, made these observations : The first 
 question is whether it is competent for the Court 
 to make any such order, and upon that question, 
 as it now arises for the first time, I thought it 
 better before expressing any opinion to confer 
 
 (a) 22 L. J. (n. s.) 299. 
 
BUSINESS AT CHAMBERS. 375. 
 
 with the other Judges, that is, the Vice Chan- 
 odlors, on the subject, to know what their view 
 qf the case was; for in all these matters it is 
 a^lvisable that no separate order should be made, 
 but with the concurrence of our joint opinions. 
 I therefore took that course, and am now able to 
 state what that opinion is." His Honor referred 
 to the terms, the 42nd section of the 15 & 16 
 Vict. c. 80, and proceeded thus : " The question 
 is, .whether that section confers the power to call 
 in such assistance on the Judge only, or autho- 
 rizes him to delegate that power to the Master. 
 We are of opinion, that it was not intended, that 
 the Court should delegate any such power to the 
 Master, and the purpose of the Act was to enable 
 Judges, in doing that which they are now to do 
 instead of the Master, to decide questions which 
 otherwise would have been referred to the Master, 
 and that they should have the power, and a very 
 useful power it is, to call in the assistance of 
 scientific persons. 
 
 " In the form in which the order is prayed by 
 the petition, I cannot grant it ; but the question 
 remains, whether I should either leave the matter 
 to go on under the existing order, or myself take 
 it in chambers, calling in the assistance of build- 
 ers, &c. I confess I have felt some doubt which 
 course in the result would be most convenient 
 and advisable for the parties. I do not look at 
 my own convenience. I had much rather that it 
 
376 THE NEW CHANCEKr PRACTICE. 
 
 went through the form of an action; it would 
 then go before an arbitrator, who might decide 
 more satisfactorily than a Judge in chambers; 
 but I have no right to consider myself, and have 
 only to expedite the determination of the ques- 
 tion as between the creditor and the executors. 
 Upon the whole, I think it will be best to dis- 
 charge the order for the action, and take the 
 matter myself in chambers. With respect to 
 the details which require only mechanical ope- 
 ration, that will be done by the chief clerk under 
 my direction, but the other matters I shall have 
 an opportunity of determining, availing myself 
 of the assistance of builders and architects ; and 
 if there should be any questions of a grave nature, 
 and requiring a reasonable degree of discussion, 
 I shall think it right to have those questions 
 discussed in open Court by counsel. Therefore 
 the order will be to discharge the existing order 
 for the action; the petition to stand over, and 
 in the meantime the parties to attend me at 
 chambers; the costs to be reserved." 
 Where Where in a suit referred to the Master it is 
 
 this is re- , i • i n 
 
 quired, dcsired to obtaiu the advantage of the new 
 should be powers, Conferred upon the Court by the recent 
 
 transferred . . n i • i 
 
 from Mas- Statutes, oi employing accountants and persons 
 Ifcham/* of science, the proper course is to apply for the 
 transfer of the proceedings to the Judge in cham- 
 bers. The Court has no power to authorize the 
 Master to employ an accountant, Morrelly. Tink- 
 
BUSINESS AT CHAMBERS. 377 
 
 ler (a). It has been held that the act in a 
 previous case does not give the Master such 
 jurisdiction. 
 
 The 41st section of the New Procedure Act Mode of 
 15 & 16 Vict. c. 86, provides that where it shall dence after 
 
 , ' . . the bear- 
 
 be necessary tor any party to a cause to go into ing. 
 
 evidence subsequently to the hearing, such evi- 
 dence is to be taken, as nearly as may be, in the 
 manner provided with reference to the taking of 
 evidence with a view to the hearing. 
 
 Since the Act for abolishing the Masters' OfR- Course 
 ces 15 & 16 Vict. c. 80, the Court will rarely where a 
 direct, a reference to the Master in any suit reference 
 instituted after that act came into operation, sent to 
 But where there had been a previous reference 
 to the Master in a former suit to take the ac- 
 counts of the trust, and a second suit was insti- 
 tuted after the Master in Chancery Act came into 
 operation, involving the accounts of the same 
 estate with some additional inquiries as to mines, 
 there the Court made the reference to the Master 
 under the 10th section of the act, as being a 
 case in which it was expedient to do so, from 
 the previous reference made in the other cause. 
 Piddocke v. Smith (b). See also Thomhill v. 
 Tliomhill (c), stated supra. 
 
 By the 43rd section of the Master in Chanceiy as to 
 Abolition Act 15 & 16 Vict. c. 80, the allow- andr^ * 
 
 (a) 9 Hare, Appendix, p. 1. 
 
 (b) Ibid. p. Ixxxvii. 
 (n) ]7 .Tur. 252. 
 
378 THE NEW CHANCERY PRACTICE. 
 
 for ac- ances in respect of fees to conveyancing counsel, 
 
 countants , . x " J 
 
 and other aooountants, merchants, engineers, actuaries, and 
 persons. Other Scientific persons, are to be regulated by the 
 Taxing Master of the said Court, subject to an 
 appeal to the Judge, to whose Court the cause 
 or matter may be attached, whose decision is to 
 be final. 
 As to By the 33rd section of the Master in Chan- 
 
 excepting •' 
 
 totfhief eery Abolition Act 15 & 16 Vict. c. 80, no 
 report. cxccptious shall lie to any certificate or report 
 of the chief clerk, although signed and adopted 
 by the Judge, but any party shall either during 
 the proceedings before such chief clerk, or within 
 such time, after such proceedings shall have been . 
 concluded and before the certificate or report 
 shall have been signed and adopted, as the Lord 
 Chancellor shall by any General Order direct, be 
 at liberty to take the opinion of the Judge upon 
 any particular point or matter arising in the 
 course of the proceedings, or upon the result of 
 the whole proceeding when it is brought by the 
 chief clerk to a conclusioui 
 As to By the 31st section of the Master in Chancery 
 
 wlt^sse"^ Abolition Act 15 & 16 Vict. c. 80, parties and 
 clerk!"' '* witnesses so summoned wiU be bound to attend 
 in pursuance of any such summons, and wiU be 
 liable to process of contempt in like manner as 
 parties or witnesses are now liable thereto, in 
 case of disobedience to any order of the said 
 Court, or in case of default in attendance in 
 pursuance of any order of the said Court, or 
 
BUSINESS AT CHAMBEKS. 379 
 
 of any writ of subpos?ia ad testificandum, and all 
 persons swearing or affirming before any such 
 chief clerk, shall be liable to all such penalties, 
 punishments, arid consequencesj for any wilful 
 and corrupt false swearing or affirming contained 
 therein, as if the matters sworn or affirmed had 
 been sworn and affirmed before any person now 
 by law authorized to ^minister oaths, to take 
 affidavits, and to receive affirmations. 
 
 By the 32nd section of the Master in Chancery when a 
 Abolition Act 15 & 16 Vict. c. 80, the directions tiisoate 
 to be given by the Master of the Rolls or any L"formai° 
 Vice Chancellor for or touching any proceedings "'""^*' 
 before his chief clerk, shall require no particular 
 form, but the result of such proceedings is to be 
 stated in the shape of a short certificate, to the 
 Judge, and shall not be embodied in a formal 
 report, unless in any case the Judge shall see fit 
 so to direct; and when the Judge shall approve 
 of such certificate or report^ he shall sign the 
 same in testimony of his adopting the same. 
 
 By the Sith section of the Master in Chancery As to dis- 
 Abolition Act 15 &, 16 Viet. c. 86, it is directed or"frybg 
 that when any certificate or report of the chief clerk's cer. 
 clerk shall have been signed and adopted by the arteritis 
 Judge, the same shall be filed in like manner as 
 reports are now filed, and shall thenceforth bo 
 binding on all the parties to the proceedings, 
 unless discharged or varied, either at chambers 
 or in open Court, according to the nature of the • 
 
380 THE NEW CHANCERY PRACTICE. 
 
 case, upon application by summons or motion, 
 within such time as shall be prescribed in that 
 behalf by any General Order of the Lord Chan- 
 cellor, and nothing herein contained shall preju- 
 dice or affect the power of the Court at any time 
 to open any such certificate or report upon the 
 same or the like grounds, as any report of a 
 Master of the said Court which has been abso- 
 lutely confirmed, may now be opened. 
 What p'ro. By the 7th section of the Master in Chancery 
 
 ceedings "' _ "^ 
 
 may still Abolitiou Act 15 & 16 Vict. c. 80, in order as 
 
 betaken , , . 
 
 before the expcditiouslv as may be to wind up all the 
 
 Masters, '^ •' '' . . ^ 
 
 causes, matters, and things, which may from 
 time to time be depending before or have been 
 referred tb the Masters in ordinary of the said 
 ■ Court, it shall be lawful for every Master any 
 time after the passing of this Act to summon as 
 he shall deem fit, all or any of the parties to any 
 cause, matter, or thing so depending, or their 
 solicitors, and thereupon to proceed with such 
 cause, matter, or thing, and give such directions, 
 and make such order as he may think necessary 
 for the purpose of settling and winding-up the 
 same, but any such order shall be subject to be 
 discharged or varied by the Court upon applica- 
 tion made for that purpose, and- the Master shall 
 be at liberty to proceed for the purposes afore- 
 said in the absence of any of the parties or 
 solicitors neglecting or refusing to attend the 
 summons. 
 
BUSINESS AT CHAMBERS. 381 
 
 By the 8th section of the Master in Chancery where 
 Abolition Act 15 & 16 Vict. c. 80, in case the may make 
 Master shall be unable by reason of the conduct report or 
 of parties or otherwise, to finally dispose of any 
 cause, matter, or thing, he shall be at liberty to 
 dispose of any part thereof within his power, and 
 to report or certify on the whole of the case ; and 
 upon such report or certificate the Court shall 
 make such order as it shall think proper on all 
 or any of the parties for the further prosecution 
 of such suit or matter, or for the final disposal 
 thereof, and for the payment of the costs thereof, 
 including any of the costs which may have been 
 incurred by reason of the conduct of the parties. . 
 
 By the 9th section of the Master in Chancery where 
 Abolition Act 15 & 16 Vict. c. 80, in the event delay to 
 of the parties in any cause, matter, or thing, or te""s^repoi"t 
 their solicitors refusing or neglecting within a court,' ^ 
 time to be fixed by the Master to bring the ^he^guitor'" 
 Master's report or certificate before the Court, do"fo"*^ 
 the same may, by direction of the Master, be 
 brought before the Court by the solicitor for the 
 time being to the suitors' fund ; and the Court is 
 hereby empowered to order payment of the costs 
 and expenses of the solicitor to the suitors' fund 
 out of such of the funds in the cause, matter, or 
 thing, or by such parties as to the Court shall 
 seem just, and in case payment thereof cannot 
 be obtained by any of the means aforesaid, the 
 
382 THE NEW CH-ANCERY PRACTICE. 
 
 same by the direction of the Court may be paid 
 out of the suitors' fund. 
 Former By the 39 th section of the Master in Chancery 
 
 thrMaV Abolition Act 15 & 16 Vict, c. 80, the course of 
 abolished* practice and proceeding in the offices of the Mas- 
 ters in ordinary of the said Court, so far as the 
 same may be inconsistent with the rules and 
 regulations to be made by the Lord Chancellor, 
 is for the future abolished, and- the Masters in 
 ordinary of the Courts with reference to the pro- 
 ceedings before them, are to adopt- all such rules 
 and regulations, and to conduct the business of 
 their respective offices, as nearly as may be, in 
 -the manner in which similar business shall be 
 conducted by the Master of the EoUs, and Vice 
 Chancellors respectively, save only that the 
 Master instead of communicating directly with 
 the Judge is to report shortly the result of his 
 inquiries to the Court. 
 Proceed- By the 10th section of the Master in Chancery 
 thf^Wnd- Abolition Act 15 & 16 Vict. c. 80, no reference 
 Acts" to is in future to be made to any of the Masters in 
 Ma^ten^ ordinary of the Court, except in cases in which 
 from some previous! reference made in the cause 
 or matter, or in some other cause or matter con- 
 nected therewith, the Court may think it expe- 
 dient to make such reference, and except in 
 matters arising under the Joint Stock -Compaffliis 
 Winding-up Acts 1848 and. 1849. Provided 
 
BUSINESS AT CHAMBERS, 388 
 
 always that until all the Masters in ordinary, of 
 the said Court shall have been removed by resig- 
 nation, deathyOr otherwise, or have been released 
 from their duties under the act, those Masters 
 who shall for the time being remain in office, and 
 shall not be released from their duties under this 
 act, are to prosecute all the business which on 
 the first day of Michaelmas Term one thousand 
 eight hundred and fifty-two, shall be depending 
 before the Masters, and also all the references 
 which before the said first day of Michaelmjp 
 Term one thousand eight hundred and fifty-two, 
 shall have been made under decrees or orders of 
 the Court, or which on or after the same first 
 day of Michaelmas Term shall be made in rela- 
 tion to such excepted matters as aforesaid, and 
 the same, if necessary, are to be distributed 
 amongst such remaining Masters in such manner 
 as the Lord Chancellor shall direct; and the 
 powers and authorities now vested in them are 
 by the above section reserved to them for the 
 purpose of executing and performing all the 
 duties, matters, and things, which may be still 
 referred to them, or which they may lawfully be 
 called upon to perform. 
 
 By the S7th section of the Master in Chancery Astojuris- 
 
 , diction at 
 
 Abolition Act 15 & 16 Vict. c. 80, the powers chambers 
 given to the Masters in ordinary of the Court, now de- 
 and to the Court by. sections seven, eight, and ^ "'^' 
 nine, of the Act, are to be exercised by the Mas- 
 
384 THE NEW CHANCERY PEACTICB. 
 
 ter of the Rolls and Vice Chancellors respectively 
 with respect to all causes, matters, and things, 
 which may be depending before them respectively 
 in chambers, and when any such Judge shall be 
 of opinion that any cause, matter, or thing so 
 depending, ought to be finally disposed of, unless 
 the parties, or some of them, can show good 
 cause to the contrary, he may direct the same 
 to stand in his paper in open Court, giving such 
 notice thereof, if any, as he shall deem right, and 
 proceed to dispose thereof accordingly. 
 
APPENDIX. 
 
 THE NEW PRPCEDURE ACT. 
 15 & 16 Vict. cap. 86. 
 
 An Act to amend the Practice and Course of Proceeding 
 in the High Court of Chancery. 
 
 [1st July, 1852.] 
 
 Whereas it is expedient to amend the practice and 
 course of proceeding in the High Court of Chancery : 
 be it enacted by the Queen's most excellent Majesty, by 
 and with the advice and consent of the lords spiritual 
 and temporal, and commons, in this present Parliament 
 assembled, and by the authority of the same, as follows : 
 
 I. From and after the time hereinafter appointed for Practice of 
 the commencement of this act, the practice of engrossing engrossing bills 
 on parchment bills of complaint or claims to be filed in discontinued^ 
 the said Court, and of filing such engrossment, shall be and a printed 
 discontinued; and the clerks of records and writs of the }""to be filed 
 said Court shall receive and file a printed bill of com- 
 plaint or claim, in lieu of an engrossment thereof, in 
 like manner as they now receive and file such engross- 
 ment (a). 
 
 n. The writ of subpcena to appear to and answer ^^Vrits of sub- 
 a bill of complaint in the said Court, and the writ Pu'^"*o™^tobe 
 of summons upon a claim, shall respectively be abol- abolished. 
 ished. 
 
 IIL In lieu of serving the defendant to a bill of com- Defendants to 
 
 plaint in the said Court with a writ of subposna to appear Reserved with 
 
 to and answer the same, and in lieu of serving the fnlieuofthe 
 
 defendant to a claim in the said Court with a writ writs of sub- 
 
 of summons upon such claim, in the mode and according P^*"* ^^^ 
 '■ " summons. 
 
 (a) See 1st Order, 7th of August 1852. 
 
 B 
 
2 THE NEW PROCEDURE ACT. 
 
 to the practice now adopted in the said Court with 
 reference to such writs respectively, the defendant shall 
 be served with a printed bill of complaint or claim, 
 with an endorsement thereon, in the form or to the 
 effect set out in the schedule to this act, with such 
 variations as circumstances may require, such printed bill 
 of complaint or claim so to be served being previously 
 stamped with a proper stamp by one of the clerks of 
 records and writs, indicating the filing of such bill of 
 complaint or claim, find the date of the filing thereof. 
 The filing and IV. Tte filing of a printed bill of complaint or claim 
 service of a in the said Court shall have the same effect as the filing 
 011°™"}!^? °f * ^^'^ °f complaint or claim in the same Court, and 
 the same effect the issuiug of a subpeena or writ of summons thereon 
 as the filing respectiviBly now have, and the service upon the de- 
 *"^tfj°e,5 fendant of a printed bill of complaint or of a claim 
 poena and SO filed, with Such endorsement thereon, so stamped 
 summons. as aforesaid, shall have the same effect as the service on 
 
 him of a writ of subpoena or Writ of summons respec- 
 tively now ha^, arid shall entitle the plaintiff in such 
 suit to such I'emedies for default of appetarance and other- 
 wise as he is now entitled to iii case of due and proper 
 service of a subpoena to appear to and answer a bill of 
 Gomplaint-or of a writ of summons upon a claim. 
 As to service of V; The Service upon any defendant of 'a printed copy 
 printed bill. of a bill of complaint or of a claim in the said Court 
 shall be effected in the same manner as service of a writ 
 of subpoena to appear to and answer a bill of complaint 
 is now effected, save only that it shall not be necessary 
 to produce the original bill or claim, which will be on 
 the files of the Court ; provided that the Court shall be 
 at liberty to direct substituted service of such printed 
 bill or claim, in such manner and in such cases as it 
 shall think fit. 
 Written copies VI. Notwithstanding the providona hereinbefore 
 of bills may be contained, the clerks of records and writs of the said 
 tain MMsr'" ^°^^^ ™*y receive and file a written-copy of any bill of 
 upon plaintiff complaint praying a writ of injunction or a vmt of 
 undertaking to jie exeat regno, or filed for the purpose either solely 
 cipy in"our^ °'" ^"^0^%, ol^her things of making an infant a ward of the 
 teen days. Said (]orirt, upon the pergonal undertaking, of the 
 plaintiff or bis sdlicitor to file a printed copy of such bill 
 within fourteen days, and every bill of complaint so filed 
 shall be deemed and taken to have been filed ^t the time 
 
15 & 16 VICT. c. 86. 3 
 
 of filing the written copy thereof; and a written copy of 
 any such bill of complaint, stamped as aforesaid, and 
 with such endorsement thereon as aforesaid, may be 
 served on any defendant thereto, and such service 
 shall have the same effect as the service of a printed 
 copy, (a) • 
 
 VII. The plaintiff in any suit to be commenced in Plaintiff to 
 the said Court after the time hereinafter appointed for eop^MTbuf'* 
 the commencement of this act shall be bound to deliver or claim at rate 
 to the defendant or his solicitor, upon application for the prescribed by 
 same, such a number of printed copies of his bill of JgUor*^''™' 
 complaint or claim as he shall have occasion for, upon 
 
 being paid for the same at such rate as shall be pre- 
 scribed by any General Order of the Lord Chancellor in 
 that behalf. (6) 
 
 VIII. Upon the amendment of any bill of complaint Provisions as 
 or claim to be filed in the said Court after the time here- to filing, &c., 
 inafter appointed for the commencement of this act, the g[i"f bm°"' 
 provision hereinbefore contained with respect to filing extended to 
 and serving and delivering printed copies thereof shall amendments, 
 so far as may be extend and may be applicable to the 
 
 bill or claim as amended : Provided that where accord- 
 ing to the present practice of the said Court an amend- 
 ment of a bill or claim may be made wit^ut a new 
 engrossment thereof or under such other circumstances 
 as shall be prescribed by any General Order of the 
 Lord Chancellor in that behalf, a bill or claim may be 
 wholly or partially amended by written alterations in 
 the printed bill of complaint or claim so to be filed as 
 aforesaid, (c) 
 
 IX. It shall be lawful for the Lord Chancellor, fi:om 
 time to time, to make any order or orders directing that 
 the provisions hereinbefore contained as to printing or 
 otherwise shall be discontinued or suspended until fur- 
 ther order, and to direct that all or any of the present 
 practice as to the filing of bills and claims, and the 
 issuing and service of subpoenas and writs of summons, 
 may be revived and come into operation as if this act 
 bad not passed. 
 
 X. Every bill of complaint to be filed in the said Bills of corn- 
 Court after the time hereinafter appointed for the com- P'?""' '" 5°"" 
 
 i^t tain concise 
 
 (a) See 2nd and 3rd Orders, 7th of August 1852. 
 (i) See 5th and 6th Orders, 7th of August 1852. 
 (c) See the 7th, 8th, 9th, 10th and 1 1th Orders, 7th of Aug. 1852. 
 b2 
 
THE TSKW PROCEDURE ACT. 
 
 . narratives of 
 material facts 
 &c., divided 
 into numbered 
 paragraphi, 
 but not to 
 contain inter- 
 rogatories. 
 
 Person whose 
 name is used 
 as next friend 
 of any infant, 
 &c., in any 
 suit, &c., to 
 sign a written 
 authority. 
 
 Interrogatories 
 to be filed in 
 record office 
 by plaintiff 
 within time 
 prescribed. 
 
 Defendants 
 may answer 
 without leave 
 within the time 
 now allowed, 
 though not 
 required so to 
 do by plaintiff; 
 
 mencenient of this act shall contain as concisely as may 
 be a narrative of the material facts, matters, and circum- 
 stances on which the plaintiff relies, such narrative being 
 divided into paragraphs numbered consecutively, and 
 each paragraph containing, as nearly as may be, a 
 separate and distinct statement or allegation, and shall 
 pray specifically for the relief which the plaintiff may 
 conceive himself entitled to, and also for general relief; 
 but such bill of complaint shall not contain any inteiTo- 
 gatories for the examination of the defendant, (a) 
 
 XI. Before the name of any person shall be used in 
 any suit to be instituted in the said Conrt as next friend 
 of any infant, married woman, or other party, or as 
 relator in any information, such person shall sign a 
 written authority to the solicitor for that purpose, and 
 such authority shall be filed with the bill, information, 
 or claim. 
 
 XII. Within a time to be limited by a General Order 
 of the Lord Chancellor in that behalf, the plaintiff in any 
 suit in the said Court commenced by bill may, if he 
 requires an answer from any defendant thereto, file in 
 the Record Office of the said Court interrogatories for 
 the examination of the defendant or defendants, or such 
 of them f^m whom he shall require an answer, and 
 deliver to the defendant or defendants so required to 
 answer, or to his or their solicitor, a copy of such inter- 
 rogatories, or of such of them as shall be applicable to 
 the particular defendant or defendants ; and no defendant 
 shall be called upon or required to put in any answer to 
 a bill unless interrogatories shall have been so filed, and 
 a copy thereof delivered to him or his solicitor, within 
 the time so to be limited, or within such further time as 
 the Court shall think fit to direct, (b) 
 
 XIII. Whether the plaintiff in any suit in the said 
 Court commenced by bill does or does not require any 
 answer from the defendant or any one or more of the 
 defendants to the bill, such defendant or defendants may, 
 without any leave of the Court, put in a plea, answer, or 
 demurrer to the plaintiff's bill vidthin the time now 
 
 (a) See 14th Order, 7th of August 1852, and Schedule B. to the 
 same Orders. 
 
 (J) See the 15th, 16th, irth, 18th and 20th Orders of the rth of 
 August 1852, and Schedule C. to those Orders. 
 
15 & 16 VICT. c. 86. 5 
 
 allowed to the defendant for demurring alone to a bill, 
 or within such other time as shall be fixed by any 
 General Order of the Lord Chancellor in that behalf; 
 but after that time a defendant or defendants not required bat after that 
 to answer the plaintiff's bill shall not be at liberty to put ^™«^ tavl"''*"* 
 in a plea, answer, or demurrer to the bill, without leave iea»e. 
 of the Court ; provided that the power of the Court to 
 grant further time for pleading, answering, or demurring 
 to any bill, upon the application of any defendant or 
 defendants thereto, whether required to answer the bill 
 or not, shall remain in full force, and shall not be in 
 anywise prejudiced or affected; provided also, that if the 
 Court shall grant any further time to any defendant for 
 pleading, answering, or demurring to the bill, the plain- 
 tiff's right to move for a decree under the provisions 
 hereinafter contained shall in the meantime be sus- 
 pended, (a) 
 
 XIV. The answer of the defendant to any bill of Defendant's 
 complaint in the said Court may contain, not only the answer may 
 answer of the defendant to the interrogatories so filed as ^y answer 
 aforesaid, but such statements material to the case as the to interroga- 
 defendant may think it necessary or advisable to set tones, but 
 forth therein, and such answer shall also be divided into material" to his 
 paragraphs numbered consecutively, each par^raph con- case. 
 taining as nearly as may be a separate and distinct 
 statement or allegation, {b) 
 
 XV. The plaintiff in any suit commenced by bill Plaintiff may, 
 shall be at liberty, at any time after the time allowed to °^ expiry of 
 the defendant for answering the same shall have expired spring, but 
 (but before replication), to move the Court, upon such before replica- 
 notice as shall in that behalf be prescribed by any t'™' •"""e '<"■ 
 General Order of the Lord Chancellor, for such decree decre'tal order. 
 or decretal order as he may think himself entitled to ; Affidavits may 
 and the plaintiff and defendant respectively shall be at be filed. 
 liberty to file aflSdavits in support of and in opposition to 
 
 the motion so to be made, and to use the same on the 
 hearing of such motion; and if such motion shall be 
 made after an answer filed in the cause, the answer 
 shall, for the purposes of the motion, be treated as an 
 affidavit. 
 
 XVI. Upon any such motion for a decree or decretal Court may 
 
 refuse or grant 
 
 (a) See the 16th Order of May 1845. 
 
 (6) See 21st Order, 7th of August 1852, and Schedule D. to 
 those Orders. 
 
THE NEW PKOCEDURE ACT. 
 
 such motion, 
 or make order 
 for further pro- 
 secution, &c. 
 
 Practice of 
 excepting to 
 bills, answers, 
 &c. , for imper- 
 tinence abo- 
 lished. 
 
 Proviso as to 
 costs. 
 
 Court or Judge 
 may order 
 defendant to 
 produce docu- 
 ments, &c., on 
 oath. 
 
 In certain 
 cases defend- 
 ant, after 
 answer, may 
 file interroga- 
 tories for ex- 
 amination of 
 plaintiff. 
 
 order it shall be discretionary with the Coutt to grant or 
 refuse the motion, or to make an order giving such 
 directions for or with respect to the further prosecution 
 of the suit as the circumstances of the case may require^ 
 and to make such order as to costs as it may think right. 
 
 XVII. The practice of excepting to bills, answers, 
 and other proceedings in the said Court, for impeninenc^ 
 shall be and the same is hereby abolished : provided 
 always, that it shall be lawful for the Court to direct the 
 costs occasioned by any impertinent matter introduced 
 into any proceeding in the said Court to be paid by the 
 party introducing the same, upon application being 
 made to the Court for that purpose. 
 
 XVIII. It shall be lawful for the Court, upon the 
 application of the plaintiff in any suit in the said Court, 
 whether commenced by bill or by claim, and as to a suit 
 commenced by bill, whether the defendant may or may 
 not have been required to answer the bill, or may or may 
 not have been interrogated as to the possession of docu- 
 ments, to make an order for the production by any 
 defendant, upon oath, of such of the documents. in his 
 possession or power relating to matters in question in 
 the suit, as the Court shall think right ; and the Court 
 may deal with such documejits, when produced, in such 
 manner as shall appear just. 
 
 XIX. It shall be lawful for any defendant in any suit, 
 whether commenced by bill or by claim, but in suits 
 commenced by bill which the defendant is reqiiired to 
 answer, not until after he shall have put in a sufficient 
 answer to the bill, and without filing any cross bill of 
 discovery, to file in the Record Office of the said Court 
 interrogatories for the examination of the plaintifi> to 
 which shall be prefixed a concise statement of the sub- 
 jects on which a discovery is sought, and to deliver a 
 copy of such interrogatories to the plaintifi^ or his soli- 
 citor; and such plaintifiF shall be bound to answer such 
 iiiterrogatories, in like manner as if the same had been 
 contained in a bill of discovery filed by the defendant 
 against him on the day when such interrogatories shall 
 have been filed, and as if the defendant to such bill of 
 discoviery had on J,he same day duly appeared ; and the 
 practice of the Court with reference to .excepting to 
 answers for insufficiency, or for scandal shall extend and 
 be applicable to answers put into such interrogatories; 
 
15 & 1j6 VICT. c. 86. 
 
 pcoyided that in deterihining the materiality or rele- 
 vancy of any such answer, or of any exception thereto, 
 the Court is to have regard^ in suits commenced by bill, 
 to the statements contained in the original bill, and in 
 the answer which may have been put in thereto by the 
 defendant exhibiting such interrogatories for the ex- 
 amination of the plaindfF, and in suits commenced by 
 claim, to the statements therein, and in any a.ffidavits 
 which may have been filed either in support thereof or 
 in opposition thereto: Provided also, that a defendant, 
 if he shall think fit so to do, may exhibit a cross bill of 
 discovery against the plaidtifi', instead of filing interro- 
 gatories for his examination. 
 
 XX. It shall be lawful for the Court, upon the appli- 
 eation of any defendant in any suit, whether commenced 
 by bill or by claim, but as to suits commenced by bill 
 where the defendant is required to answer the plaintiff's 
 bill, not until after he has put in a full and sufficient 
 answer to the bill, unless the Court shall make any order 
 to the contrary, to make an order for the production by 
 the plaintiff in such suit, on oath, of such of the docu- 
 ments in his possession or power relating to the matters 
 in question in the suit, as the Court shall think right ; 
 and the Court may deal with such documents, when pro- 
 duced, in such manner as shall appear just. 
 
 XXI. The practice of the said Court, of issuing com- 
 missions to take pleas, answers, disclaimers, and examin- 
 ations in causes and matters pending in the said Court 
 shall, with respect to pleas, answers, disclaimers, and 
 examinations taken within the jurisdiction of the Court, 
 be and the same is hereby abolished ; and any such plea, 
 answer, disclaimer, or examination may be filed without 
 any further or other formality than is required in the 
 swearing and filing of an affidavit. 
 
 XXII. All pleas, answers, disclaimers, examinations, 
 affidavits, declarations, affirmations, and attestations of 
 honour in causes or matters depending in the High 
 Court of Chancery, and also acknowledgments required 
 for the purpose of enrolling any deed in the said Court, 
 shall and may be sworn and taken in Scotland or 
 Ireland, or the Channel Islands, or in any colony, 
 island, plantation, or place under the dominion of her 
 Majesty in foreign parts, before any judge. Court, notary 
 
 Defendant may 
 exhibit a cross 
 bill instead of 
 filing interro- 
 gatories. 
 
 Upon applica- 
 tion of defend- 
 ant after an- 
 swer, plaintiff 
 may be re- ^ 
 quired to pro- 
 duce docu- 
 ments on oatb. 
 
 Practice of 
 issuing com- 
 missions to 
 take answers, 
 &c., within the 
 jurisdiction of 
 the Court 
 abolished. 
 
 Pleas, declara- 
 tions, &c., 
 in Chancery, 
 how to be 
 sworn and 
 taken in Scot- 
 land, Ireland, 
 the Channel 
 Islands, &c. 
 
THE NEW PROCEDURE ACT. 
 
 Penalty for 
 falsely swear- 
 ing, &c. 
 
 Penalty for 
 forging signa- 
 ture or seal of 
 Judge, &c., 
 empowered to 
 administer 
 oaths under 
 this act. 
 
 Answers, &c., 
 to be filed 
 without oath 
 of messenger. 
 
 public, or person lawfully authorized to administer oaths 
 in such country, colony, island, plantation, or place 
 respectively, or before any of her Majesty's consuls or 
 vice-consuls in any foreign parts out of her Majesty's 
 dominions; and the judges and other officers of the 
 said Court of jChancery shall take judicial notice of 
 the seal or signature, as the case may be, of any such 
 Court, judge, notary public, person, consul, or vice- 
 consul attached, appended, or subscribed to any such 
 pleas, answers, disclaimers, examinations, affidavits, 
 affirmations, attestations of honour, declarations, acknow- 
 ledgments, or other documents to be used in the said 
 Court. 
 
 XXIIL All persons swearing, declaring, affirming, or 
 attesting before any person authorized by this act to 
 administer oaths and take declarations, affirmations, or 
 attestations of honour shall be liable to all such penaltie's, 
 punishments, and consequences for any wilful and cor- 
 rupt false swearing, declaring, affirming, or attesting 
 contained therein as if the matter sworn, declared^ 
 affirmed, or attested had been sworn, declared, affirmed, 
 or attested before any Court or persons now by law 
 authorized to administer oaths, and take declarations^ 
 affirmations, or attestations upon honour. 
 
 XXIV. If any person shall forge the signature or the 
 official seal of any such judge, notary public, or other 
 person lawfully authorized to administer oaths under 
 this act, or shall tender in evidence any plea, answer, 
 disclaimer, examination, affidavit, or other judicial or 
 official document with a false or counterfeit signature or 
 seal of any such judge. Court, notary public, or other 
 person authorized as aforesaid attached or appended 
 thereto, knowing the same signature or seal to be false. 
 or counterfeit, every such person shall be guilty of 
 felony, and shall be liable to the same punishment as 
 any offender under an act passed in the eighth and 
 ninth years of the reign of her present Majesty, intituled 
 An Act to facilitate the Admission in Evidence of certain 
 official and other Documents. 
 
 XXV. Pleas, answers, disclaimers, or examinations, 
 whether taken by commission out of the jurisdiction of 
 the said Court or otherwise, may be filed without the 
 oath of a messenger, and any alterations made therein 
 
15 & 16 VICT. c. 86. 9 
 
 prteviously to the taking thereof shall be authenticated 
 according to the practice now in use with respect to 
 affidavits. 
 
 XXVI. In suits in the said Court commenced by bill, issue may be 
 where notice of motion for a decree or decretal order jomsd by filing 
 
 t_ n , , , . 1-1 • 1 replication as 
 
 Shall not have been given, or, having been given, where at present. 
 a decree or decretal order shall not have been made 
 thereon, issue shall be joined by filing a replication in 
 the form or to the effect of the replication now in use in 
 the said Court ; and where a defendant shall not have 
 been required to answer and shall not have answered 
 the plaintiff's bill, he shall'be considered to have tra- 
 versed the case made by the bill. 
 
 XXVII. Where a defendant to a suit in the said Defendant not 
 Court commenced by bill shall not have been required having been 
 to answer the bill and shall not have answered the same, '^^^""■™ '° 
 
 £in5W6F And 
 
 such defendant shall be at liberty to move to dismiss the not answering, 
 bill for want of prosecution, at such times, and under may move for 
 such circumstances, and subject to such restrictions as bln^or ^a^^t of 
 shall be in that behalf prescribed by any General Order prosecution. 
 of the Lord Chancellor, (a) 
 
 XXVIII. The mode of examining witnesses in causes Practice of 
 in the said Court, and all the practice of the said Court *^°j"'' ^ *°' 
 in relation thereto, so far as such practice shall be incon- examining*' 
 sistent with the mode hereinafter prescribed of examining witnesses, abo- 
 witnesses, and the practice in relation thereto, shallj from lished. 
 
 and after the time appointed for the commencement of 
 this act, be abolished : Provided always, that the Court Court majr 
 may, if it shall think fit, order any particular witness or °'"^®'' P?"'" 
 witnesses within the jurisdiction of the said Court, or to be examined 
 any witness or witnesses out of the jurisdiction of the uponinterro- 
 said Court, to be examined upon interrogatories in the g*'*'™^ ^s now 
 "mode now practised in the said Court, and that with 
 respect to such witness or witnesses the practice of the 
 said Court in relation to the examination of witnesses 
 shall continue in full force, save only so far as the same 
 may be varied byany General Order of the Lord Chan- 
 cellor in that behalf, or by any order of the Court with 
 reference to any particular case. 
 
 XXIX. When any suit commenced by bill shall be Plaintifif, where 
 set at issue, the plaintiff shall, within such time there- i'3^'„';''4^J"^J^ 
 after as shall be prescribed in that behalf by any General notice to de- 
 
 (a) See 29th Order, 7th of August 1853. 
 
10 
 
 THE NEW PROCEDURE ACT. 
 
 fendant' to 
 adduce evi- 
 dence orally 
 or by affidavit. 
 
 Evidence may 
 be taken orally 
 if required, 
 but the Court 
 may in certain 
 cases make an 
 order, &c. 
 
 Witnesses to 
 be examined 
 by one of the 
 examiners of 
 the Court in 
 the presence of 
 the parties. 
 
 Depositions to 
 be taken down 
 in writing and 
 read over to 
 the witness, 
 who shall sign 
 the same in 
 
 Order of the Lord Chancellor, give notice to the de- 
 fendant that he desires that the evidence to be adduced 
 in the cause shall be taken orally or upon aflSdavit, as 
 the case may be; and if the plaintiff shall desire the 
 evidence to be adduced upon affidavit, and the de- 
 fendant, or some or one of the defendants, if more than 
 one, shall not, within such time as shall be prescribed in 
 that behalf by any General Order of the Lord Chan- 
 cellor, give notice to the plaintiff or his solicitor that he 
 or they desire the evidence to be oral, the plaintiff and 
 defendants respectively shall be at liberty to verify their 
 respective cases by affidavit, (a) 
 
 XXX. When any of the parties to any suit com- 
 menced by bill desires that the evidence should be ad- 
 duced orally, and gives notice thereof to the opposite 
 party as hereinbefore provided, the same shall be taken 
 orally, in the manner hereinafter provided; provided, 
 that if the evidence be required to be oral merely by a 
 party without a sufficient interest in the matters in 
 question, the Court may, upon application in a summary 
 way, make such order as shall be just. 
 
 XXXI. All witnesses to be examined orally under 
 the provisions of this act shall be so examined by or 
 before one of the examiners of the Court, or by or 
 before an examiner to be specially appointed by the 
 (^ourt, the examiner being fumisned by the plaintiff 
 with a copy of the bill, and of the answer, if any, in the 
 cause ; and such examination shall take place in the 
 presence of the parties, their counsel, solicitors, or 
 agents, and the witnesses so examined orally shall be 
 subject to cross-examination and re-examination, and 
 such examination, cross-examination, and re-examination 
 shall be conducted as nearly as may be in the mode now 
 in use in Courts of common law with respect to a wit- 
 ness about to go abroad, and not expfected to be at 
 present at the trial of a cause. 
 
 XXXIL The depositions taken upon any such oral 
 examination as aforesaid shall be taken down in, writing 
 by the examiner, not ordinarily by question and answer, 
 but in the form of a narrative, and when completed shall 
 be read over to the witness, and signed by him in the 
 
 (a) See the 31st and 39th of the General Orders of the 7th,of 
 August 1852. - 
 
15 & 16 VICT. c. 86. 11 
 
 presence of the parties, or such of them as may think fit presence of the 
 to attend : Provided always, that in case the witness parties, but if 
 shall refuse to sign the said depositions, then the exa- gitn^exMn^er 
 miner shall sign the same, and such examiner may, may, and state 
 upon all examinations, state any special matter to the a°y special 
 Court as he shall think fit: Provided also, that it shall Sfit^""*^ 
 be in the discretion of the examiner to put down any 
 particular question or answer, if there should appear 
 any special reason for doing so ; and any question or 
 questions which may be objected to shall be noticed or 
 referred to by the examiner in or upon the depositions, 
 and he shall state his opinion thereon to the counsel, 
 solicitors, or parties, and shall refer to such statement on 
 the face of the depositions, but he shall not have power 
 to decide upon the materiality or relevancy of any ques- 
 tion or questions; and the Court shall have power to 
 deal with the costs of immaterial or irrelevant depositions 
 as may be just., 
 
 XXXIII. If any person produced before any such if parties 
 examiner as a witness shall refuse to be sworn, or to refuse to be 
 answer any lawful question put to him by the examiner, ^"°™ "'' *° 
 
 , .,•' ni^ •'■it- '' 1 • 1 answer any 
 
 or by either or the parties, or by his or their counsel, lawful ques- 
 solicitor, or agent, the same course shall be adopted with t'o^s, the same 
 respect to such witness as is now pursued in the case of <*^''se tobe 
 a witness produced for examination before an examiner now adopted, 
 of the said Court, upon written interrogatories, and 
 refusing to be sworn, or to answer some lawful question : 
 Provided always, that if any witness shall demur or Proviso as to 
 object to any question or questions which may be put witness demur- 
 to him, the question or questions so put, and the de- '1"^ '"I"*'" 
 murrer or objection of the witness thereto, shall be taken 
 down by the examiner, and transmitted by him to the 
 Record OflBce of the said Court, to be there filed ; and 
 the validity of such demurrer or objection shall be de- 
 cided by the Court ; and the costs of and occasioned by 
 such demurrer or objection shall be in the discretion of 
 the Court. 
 
 XXXIV. When the examination of witnesses before Original depo- 
 any examiner shall have been concluded, the original sitions to be 
 depositions, authenticated by the signature of such ex- the"rec'ord 
 aminer, shall be transmitted by him to the Record Office office, and 
 of the said Court, to be there filed, and any party to the *•«<*• 
 suit may have a copy thereof or of any part or portion 
 thereof upon payment for the same in such manner as 
 
12 
 
 THE NEW PROCEDUUB ACT. 
 
 Commission 
 for examina- 
 tion of wit- 
 nesses dis- 
 pensed with, 
 and examiner 
 empowered to 
 administer 
 oaths. 
 
 Affidavits as to 
 particular facts, 
 &c., may be 
 
 Affidavits to be 
 divided into 
 paragraphs 
 numbered. 
 
 Evidence oral 
 or by affidavit, 
 on both sides 
 to be closed 
 within time 
 prescribed by 
 General Order. 
 
 Witnesses by 
 affidavit to be 
 subject to oral, 
 - cross-examina- 
 tion, and after- 
 wards to re- 
 examination. 
 
 shall be provided by any General Order of the Lord 
 Chancellor, in that behalf. 
 
 XXXV. It shall not be necessary to sue out any 
 commission for the examination of any witnesses within 
 the jurisdiction of the said Court: and any examiner 
 appointed by any order of the Court shall have the like 
 power of administering oaths as commissioners now have 
 under commissions issued by the Court for the examina- 
 tion of witnesses. 
 
 XXXVI. Notwithstanding that the plaintiff or the 
 defendant in any suit in the said Court may have elected 
 that the evidence in the cause should be taken orally, 
 affidavits by particular witnesses, or affidavits as to par- 
 ticular facts and circumstances, may, by consent, or by 
 leave of the Court obtained upon notice, be used on the 
 hearing of any cause, and such consent, with the appro- 
 bation of the Court, may be given by or on the part of 
 married women or infants or other persons under dis- 
 ability, (a) 
 
 XXXVII. Every affidavit to be used in the said 
 Court shall be divided into paragraphs, and every para- 
 graph shall be numbered consecutively, and, as nearly 
 as may be, shall be confined to a distinct portion of the 
 subject. 
 
 XXXVIII. The evidence on both sides in any suit in 
 the said Court, whether taken orally or upon affidavit, 
 shall be closed within such time or respective times after 
 issue joined as shall in that behalf be prescribed by any 
 Gejieral Order of the Lord Chancellor, but with power to 
 the Court to enlarge the same as it may see fit; and 
 after the time fixed for closing the evidence no further 
 evidence, whether oral or by affidavit, shall be receiv- 
 able, without special leave of the Court previously ob- 
 tained for that purpose: Provided always, that any 
 witness who has made an affidavit filed by any party to 
 a cause shall be subject to oral cross-examination within 
 such time after the time fixed for closing the evidence 
 as shall be prescribed in that behalf by any order of the 
 Lord Chancellor, by or before an examiner, in the same 
 manner as if the evidence given by him in his affidavit 
 had been given by him orally before the examiner, and 
 after such cross-examination may be re-examined orally 
 
 (a) See 33rd Order, 7th of August 1852. 
 
15 & 16 VICT. c. 86. 13 
 
 by or on the part of the party by whom such affidavit was 
 
 filed ; and such witness shall be bound to attend before witnesses 
 
 such examiner to be so cross-examined and re-examined, bound to 
 
 upon receiving due and proper notice, and payment of ''"™°- 
 
 his reasonable expenses, in like manner as if he had 
 
 been duly served with a writ of subpoena ad testificandum 
 
 before such examiner ; and the expenses attending such As to expenses 
 
 cross-'examination and re-examination shall be paid by cross*xaroina- 
 
 the parties respectively, in like manner as if the witness tions, &c. 
 
 so to be cross-examined were the witnesses of the party 
 
 cross-examining, and shall be>.deemed costs in the cause 
 
 of such parties respectively, unless the Court shall 
 
 think fit otherwise to direct, (a) 
 
 XXXIX. Upon the hearing of any cause depending Court may 
 
 in the said Court, whether commenced by bill or by require the 
 
 claim, the Court, if it shall see fit so to do, may require P'°f "^'i*. 
 
 the production and oral examination before itself of any tion before 
 
 witness or party in the cause, and may direct the costs 't?^'f °f »"y 
 
 of and attending the production and examination of and"^t'ermitie 
 
 such witness or party, to be paid by such of the parties payment of the 
 
 to the suit or in such manner as it may think fit. costs. 
 
 XL. Any party in any cause or matter depending in Any party in 
 
 the said Court may, by a writ of subpoena ad testifican- * ''*"f® ""^y 
 
 dum or duces tecum, require the attendance of any wit- reqidrerttend- 
 
 ness before an examiner of the said Court, or before an anceofany 
 
 examiner specially appointed for the purpose, and ex- witness before 
 
 1 '..*''' 11 f. .1 c • u- an examiner. 
 
 amine such witness orally, tor the purpose oi using his 
 evidence upon any claim, motion, petition, or other pro- 
 ceeding before the Court, in like manner as such witness 
 would be bound to attend and be examined with a view 
 to the hearing of a cause ; and any party having made 
 an affidavit to be used or which shall be used on any 
 claim, motion, petition, or other proceeding before the 
 Court shall be bound on being served with such writ to 
 attend before an examiner, for the purpose of being 
 cross-examined: Provided always, that the Court shall 
 always have a discretionary power of acting upon such 
 evidence as may be before it at the time, and of making 
 such interim orders, or otherwise, as may appear neces- 
 sary to meet the justice of the case. 
 
 XLI. In cases where it shall be necessary for any Evidence sub- 
 
 •' ■' sequent to 
 
 (a) See the 32nd, 34th and 35th Orders of the 7th of August 
 1852. 
 
14 
 
 THE NEW PROCEDURE ACT. 
 
 bearing to be 
 taken the same 
 as prior to 
 hearing. 
 
 Defendant not 
 to take objec- 
 tion for want 
 of parties in 
 any case to 
 which rules 
 herein set 
 forth shall 
 extend. 
 
 party to any cause depending in the said Court to go 
 into evidence subsequently to the hearing of such cause, 
 such evidence shall be taken as nearly as may be in the 
 manner hereinbefore provided with reference to the 
 taking of evidence with a view to such hearing, (a) 
 
 XLIL It shall not be competent to any defendant 
 in any suit in the said Court to take any objection for 
 want of parties to such suit, in any case to which the 
 rules next hereinafter set forth extend ; and such rules . 
 shall be deemed and taken as part of the law and 
 practice of the said Court, and any law or practice of 
 the said Court, inconsistent therewith shall be and is 
 hereby abrogated and annulled. 
 
 Rule I4 Any residuary legatee or next of kin may 
 without serving the remaining residuary legatees or 
 next of kin, have a decree for the administration of 
 the personal estate of a deceased person. 
 Rule 2. Any legatee interested in a legacy charged 
 upon real estate, and any person interested in the 
 proceeds of real estate directed to be sold, may, 
 without serving any other legatee or person in- 
 terested in the proceeds of the estate, have a decree 
 for the administration of the estate of a deceased 
 person. 
 Rule 3. Any residuary devisee or heir may, without 
 serving any co-residuary devisee or co-heir, have 
 the like decree. * 
 
 Rule 4. Any one of several cestuis que trust, under 
 any deed or instrument may, without serving any 
 other of such cestuis que trust, have a decree for 
 the execution of the trusts of the deed or instru- 
 ment. 
 Rule 5. In all cases of suits for the protection of 
 property pending litigation, and in all cases in the 
 nature of waste, one person may sne on behalf of 
 himself and of all persons having the same interest. 
 Rule 6. Any executor, administrator, or trustee may 
 obtain a decree against any one legatee, next of 
 kin, or cestui que trust for the administration of 
 the estate, or the execution of the trusts. 
 Rule 7. In all the above cases the Court, if it shall 
 see fit, may require any other person or persons to 
 
 (a) See 38th Order of 7th August 1852. 
 
15 & 16 VICT. c. 86. 15 
 
 be made a party or parties to the suit, and mdy, if 
 it shall see fit, give the conduct of the suit to such 
 person as it may deem proper, and may make such 
 order in any 'particular case as it may deem just for 
 placing the defendant on the record on the same 
 footing in regard to costs as other parties having 
 a common interest with him in the matters in 
 question. 
 
 Rule 8. In all the above cases the persons who, ac- 
 cording to the present practice of the Court, would 
 be necessary parties to tbe suit, shall be served with 
 notice of the decree, and after such notice they 
 shall be bound by the proceedings in the same 
 manner as if they had been originally made parties 
 to the suit, and they may by an order of course 
 have liberty to attend the proceedings under the 
 decree ; and any party so served may, within such 
 time as shall in that behalf be prescribed by the 
 General Order of the Lord Chancellor, apply to 
 the Court to add to the decree, (a) 
 
 Rule 9. In all suits Concerning real or persoiial estate 
 which is vested in trustees under a will, settle- 
 ment, or otherwise, such trustees shall represent the 
 persons beneficially interested under the trust, in 
 the same manner and to the same extent as the 
 executors or administrators in suits concerning 
 personal estate represent the persons beneficially 
 interested in such personal estate ; and in such 
 cases it shall not be necessary to make the persons 
 beneficially interested under the trusts parties to 
 the suit ; but the Court may, upon consideration of 
 the matter, on the hearing, if it shall so think fit, 
 order such persons, or any of them, to be made 
 parties. 
 
 XLIII. The practice of the said Court of setting Practice of 
 down a cause merely on an obiection for want of parties netting down 
 
 , • 1 11 1^ u 1- i_ J a cause on 
 
 to the suit shall be abonsned. objection for 
 
 XLIV. If in any suit or other proceeding before the want of parties 
 Court it shall appear to the Court that any deceased "''ol'sbei 
 person who was interestdd in the matters in question Court may 
 has no legal personal representative, it shall be lawful any suit,'&c. 
 for the Court either to proceed in the absence of any without repre- 
 
 (a) See the 40th and 41st Orders of the 7th of August 1852. 
 
16 
 
 THE NEW PROCEDURE ACT. 
 
 sentative of 
 deceased per- 
 son, or may 
 appoint one. 
 
 Creditor, &c., 
 may summon 
 executor, &c., 
 to shew cause 
 why an order 
 for adminis- 
 tration of per- 
 sonal estate 
 should not be 
 granted. 
 
 Power to 
 Judge to order 
 administration 
 of such estate. 
 
 person representing the estate of such deceased person, 
 or to appoint some, person to represent such estate for 
 all the purposes of the suit or other proceeding, on such 
 notice to such person or persons, if any, as the Court 
 shall think fit, either specially or generally by public 
 advertisements; and the order so made by the said 
 Court, and any orders consequent thereon, shall bind 
 the estate of. such deceased person in the same manner 
 in every respect as if there had been a duly constituted 
 legal personal representative of such deceased person, 
 and such legal personal representative had been a party 
 to the suit or proceeding, and had duly appeared and 
 submitted his rights and interests to the protection of 
 the Court. 
 
 XLV. It shall be lawful for any person claiming to be 
 a creditor, or a specific, pecuniary or residuary legatee, 
 or the next of kin, or some or one of the next of kiii, of a 
 deceased person, to apply for and obtain as of course, 
 without bill or claim filed, or any other preliminary pro- 
 ceedings, a summons from the Master of the Rolls 
 or any of the Vice Chancellors requiring the executor 
 or administrator, as the case may be, of- such deceased 
 persons, to attend before him at: Chambers, for the 
 purpose of showing cause why an order for the adminis- 
 tration of the personal estate of the deceased should not 
 be granted; and upon proof by affidavit of the due 
 service of such summons, or on the appearance in 
 person or by his solicitor or counsel of such executor or 
 administrator, and upon proof by affidavit of such other ■ 
 matters, if any, as such judge shall require, it shall be 
 lawful for such judge, if in his discretion he shall think 
 fit so to do, to make the usual order for the administra- 
 tion of the estate of the deceased, with such variations, 
 if any, as the circumstances of the case may require; 
 and the order so made shall have the force and effect 
 of a decree to the like effect made on the hearing of a 
 cause or claim between the same parties ; provided that 
 such judge shall have full discretionary power to grant 
 or refuse such order, or to give any special directions 
 touching the carriage or execution of such order, and in 
 the case of applications for any such order, by two 
 or more different persons or classes of persons, to grant 
 the sam^e to such one or more of the claimants or of the 
 classes of claimants as he may think fit; and if the 
 
M5 & 16 VICT. c. 86. . 17 
 
 judge shall think proper, the carriage of the order may 
 subsequently be given to such party interested, and 
 upon such terms as the judge may direct, (a) 
 
 XLVI. A duplicate or copy of such summons shall, Copy of sum- 
 previously to the service thereof, be filed in the Record fiied'in°record 
 Office of the said Court ; and no service thereof upon office of Court. 
 any executor or administrator shall be of any validity 
 unless the copy so served shall be stamped with a stamp 
 of such office indicating the filing thereof; and the 
 filing of such summons shall have the same effect with 
 respect to lis pendens as the fijing of a bill or claim. 
 
 aLVII. It shall be lawful for any person claiming to Creditor, &o., 
 be a creditor of any' deceased person, or interested ™*y °^^™ 
 under his will, to apply for and obtain in a summary administration 
 way, in the manner hereinbefore provided with respect of real estate. 
 to the personal estate of a deceased person, an order for 
 the administration of the real estate of a deceased person 
 where the whole of such real estate is by devise vested 
 in trustees who are by the will empowered to sell such 
 real estate, and authorized to give receipts for the rents 
 and profits thereof and for the produce of the sale 
 of such real estate ; and all the provisions hereinbefore 
 contained with respect to the application for such order 
 in relation to the personal estate of a deceased person, 
 and consequent thereon, shall extend and be applicable 
 to an appUcation for such order as last hereinbefore 
 mentioned with respect to real estate. 
 
 XLVIII. It shall be lawful for the Court in any suit Court may 
 for the foreclosure of the equity of redemption in any *''™' sale of 
 mortgaged property, upon the request of the mortgagee, OToper^*- 
 or of any subsequent incumbrancer, or of the mortgagor, mstead of a 
 or any person claiming under them respectively, to foreclosure on 
 direct a sale of such property, instead of a foreclosure of ■^^ ^^y think 
 such equity of redemption, on such terms as the Court fit. 
 may think fit to direct, and if the Court shall so think 
 fit, without previously, determining the priorities of 
 incumbrances, or giving the usual or any time to redeem ; 
 provided that if such request shall be made by any such 
 subsequent incumbrancer, or by the mortgagor, or by 
 any person claiming under them respectively, the Court 
 shall not direct any such sale, without the consent of the 
 
 (a) See the 42nd Order of the 7th of August 1852, and Sche- 
 dule (E.) to those Orders. 
 
 c 
 
18 
 
 THE NEW PBOCEDURE ACT. 
 
 Suit not to be 
 dismissed for 
 misjoinder of 
 piaintifis, but 
 Court may 
 modify its 
 decree, accord- 
 ing to special 
 circumstances. 
 
 No suit to be 
 objected to 
 becai)se only 
 declaratory 
 order sought. 
 
 Court may 
 decide between 
 some of the 
 parties without 
 mailing others 
 interested 
 parties to the 
 suit. 
 
 mortgagee or the persons claiming under him, unless 
 the party making such request shall deposit in Court a 
 reasonable sum of moneyj to be fixed by the Cojjrt, for 
 the purpose of securing the performance of such terms as 
 the Court may think fit to impose on the party making 
 such request. 
 
 XLIX. No suit in the said Court shall be dismissed 
 by reason only of the misjoinder of persons as plaintiflb 
 therein, but wherever it shall appear to the Comrt that, 
 notwithstanding the conflict of interest in the co-plaintiffs,, 
 or the want of interest in some of the plaintiffs, or the, 
 existence of some ground of defence affecting some or 
 one of the plaintifis, the plaintiffs, or some or one of 
 them, are or is entitled to relief, the Court shall have 
 power to grant such rejief, and to modify its decree, 
 according to the special circumstances of the case, and 
 for that purpose to direct such amendments, if any, as 
 may be necessary, and at the hearing, before such amend- 
 ments are made, to treat any one or more of the plaintiftS; 
 as if he or they was or were a defendant or defendapt^ in 
 the suit, and the remainitig or other plaintiff or. plaintiffs 
 was or were the only plaintiff or plaintiffs on the record;, 
 and where there is a misjoinder of plaintiffs, and the 
 plaintiff having an interest shall have died leaving a 
 plaintiff on the record without an interest, the Court 
 may, at the hearing of the cause, order the cause to 
 stand revived as may appear just, and proceed, to a 
 decision of the cause, if it shall see fit, and to give such 
 directions as to costs or otherwise as may appear just 
 and expedient. 
 
 L. No suit in the said Court shall be open to objection 
 on the ground that a merely declaratoXiy decree, or order 
 is sought thereby, and it shall be lawful for the Court 
 to make binding declarations of right without panting 
 consequential relief. 
 
 LL It shall be lawful for the Court to adjudicate on 
 questions arising between parties notwithstanding that 
 they may be some only of the parties interested, in the 
 property respecting which the question may have arisen, 
 or that the property in question is comprised with other 
 property in the same settlement. Will, or other instru- 
 ment, without making the other parties interested in the 
 property respecting which the question may have arisen, 
 or interested under the same settlement, will, or other 
 
15 & 16 VICT. c. 86. 19 
 
 instrument, parties to the suit, and without requiring 
 the whole trusts and purposes of the settlement, will, or 
 other instrument to be executed under the direction of 
 the Court, and without taking the accounts of the trustees 
 or other accounting parties, or ascertaining the particulars 
 or amount of the property touching which the question 
 or questions may have arisen : Provided always, that if Proviso, 
 the Court shall he of opinion that the application is 
 fraudulent or collusive, or for some other reason ought 
 not to be entertained, it shall have power to refuse to 
 make the order prayed. t 
 
 LII. Upon any suit in the said Court becoming In case of 
 abated by death, marriage, or otherwise, or defective by abatement, &o., 
 
 % , " ..'-. •'of suit an order 
 
 reason ot some change or transmission oi interest or may be made, 
 liability, it shall not be necessary to exhibit any bill of which shall 
 revivor or supplemental bill in order to obtain the usual ""ff™.'*™^ h-i« 
 order to revive such suit, or the usual or necessary of revivor. 
 decree or order to carry on the > proceedings ; but an 
 order to the effect of the usual order to rievive or of the 
 usual supplemental decree! may be obtaioed as of course 
 upon an allegation of the abatement of such suit, oV of 
 the same having become defe6tiv6j and of the change 
 and transmission of interest or liability: and a:nr Order 
 so obtaiuedj when served upon the; party or parties who 
 according to the present practice- of the said Court 
 would be defendant or defendants to the bill of revivor 
 or supplemental bill, shall from the time of such service 
 be binding on such party or parties in the same manner 
 in every respect as if such ordei- had been regularly 
 obtained according to the existing practice of the said 
 Court; and such party or parties shall thenceforth be- 
 come a party or parties to the suit, and shall be bound 
 to enter an appearance thereto in the ofBec of the clerks 
 of records and writs, within sufih time and in like manner 
 as if he or they had been duly served with process to 
 appear to a bill of revivor or supplemental bill filed 
 against him ; provided that it shall be open to the party 
 or parties so served, within sudh time after service as 
 shall be in that behalf prescribed by any General Order 
 of the Lord Chancellor, to apply to the Court by motion 
 or petition to discharge such ordef on was groimd which 
 would have been open to him on a bill of revivor or sup- 
 plemental bill, stating the previous proceedings in the 
 suit and the alleged change or transmission of interest or 
 
 c2 
 
20 THE NEW PnOCEDURE ACT. 
 
 liability, and praying the usual relief consequent thereon ; 
 Provided also, that if any party so served shall be under 
 any disability other than coverture, such order shall be of 
 no force or effect against such party until a guardian or 
 guardians ad litem shall have been duly appointed for 
 such party, and such time shall have empsed thereafter 
 as shall be prescribed by any General Order of the Lord 
 Chancellor in that Jbehalf. (a) 
 New facts, &c., LIII. It shall not be necessary to exhibit any sup- 
 after com- plemental bill in the said Court for the purpose only of 
 ^it"ToTe' °^ stating or putting in issue facts or circumstances which 
 introduced as "lay have occurred after the institution of any suit ; but 
 amendtrents to such facts or circumstances may be introduced by way 
 ' ', "■ of amendment into the original bill of complaint in the 
 
 suit if the cause is otherwise in such a state as to allow 
 of an amendment being made in the bill, and if not, the 
 plaintiff shall be at liberty to state such facts or circum- 
 stances on the record, in such manner and subject to 
 such rules and regulations with respect to the proof 
 thereof, and the affording the defendant leave and oppor- 
 tunity of answering and meeting the same as shall, in 
 that behalf be prescribed by any General Order of the 
 Lord Cjhancellor. 
 Where account LIV. It shall be lawful for the Court, in any case 
 takenrcourt^ where any account is required to be taken, to give such 
 may ^ive spe- Special directions, if any, as it may think fit with respect 
 cial directions to the mode in which the account should be taken or 
 of taking same, touched, and such special directions may be given, 
 either by the decree or order directing such account, or 
 by any subsequent order or orders, upon its appearing to 
 the Court that the circumstances of the case are such as 
 to require such special directions ; and particularly it shall 
 be lawful for the Court, in cases where it shall think fit 
 so to do, to direct that in taking the account the books 
 of account in which the accounts required to be taken 
 have been kept, or any of them, shall be taken as primd 
 facie evidence of the truth of the matters therein con- 
 tained, with liberty to the parties interested to take such 
 objections thereto as they may be advised, (J) 
 Court may LV. If after a suit shall have been instituted in the 
 
 order real said Court in relation to any real estate it shall appear 
 
 estate to be ^^ 
 
 (a) See 43rd Order, 7th of August 1852; see also 16tli Order, 
 8th of May 1845. 
 
 (J) ^ee 43rd Order, rth of August 1852. 
 
15 & 16 viOT. c. 86. 
 
 21 
 
 to the Court that it will be necessary or expedient that 
 the said real estate or any part thereof should be sold for 
 the purposes of such suit, it shall be lawful for the said 
 Court to direct the same to be sold at any time after the 
 institution thereof, and such sale shall be as valid to all 
 intents and purposes as if directed to be made by a 
 decree or decretal order on the hearing of such cause ; 
 and any party to the suit in possession of such estate, or 
 in receipt of the rents and profits thereof, shall be com- 
 pelled to deliver up such possession or receipt to the 
 purchaser or such other person as the Court shall 
 direct. • 
 
 LVI. Before any estate or interest shall be put up for 
 sale under a decree or order of the Court of Chancery, 
 an abstract of the title thereto shall, with the approba- 
 tion of the Court, be laid before some conveyancing 
 counsel to be approved by the Court, for the opinion 
 of such counsel thereon, to the intent that the said 
 Court may be the better enabled to give such directions 
 as may be necessary respecting the conditions of sale of 
 such estate or interest, and other matters connected 
 with the sale thereof; and when an estate or interest 
 shall be so put up for sale, a time for the delivery of the 
 abstract of title thereto to the purchaser or his solicitor 
 shall be specified in the said conditions of sale. 
 
 LVI I. Where any real or personal property shall 
 form the subject of any proceedings in the Court of 
 Chancery, and the Court shall be satisfied that the same 
 will be more than sufficient to answer all the claims 
 thereon which ought to be provided for in such suit, it 
 shall be lawful for the said Court at any time after the 
 commencement of such proceedings to allow to the 
 parties interested therein, or any one or more of them, 
 the whole or part of the annual income of such real 
 property, or a part of such personal property, or a part 
 or the whole of the income thereof up to such time as 
 the said Court shall direct, and for that purpose to make 
 such orders as may appear to the said Court necessary 
 or expedient. 
 
 LVlII. The practice of the Court of Chancery with 
 respect to injunctions for the stay of proceedings at law 
 shall, so far as the nature of the case will admit, be 
 assimilated to the practice of such Court with respect 
 to special injunctions generally, and such injunctions 
 
 sold, if re- 
 quired. 
 
 Before sale of 
 estate abstract 
 of title to be 
 laid before 
 some convey- 
 ancing counsel. 
 
 Time for deli- 
 very of abstract 
 to be specified 
 in conditions 
 of sale. 
 
 Where real or 
 personal pro- 
 perty is the 
 subject of 
 proceedings, 
 Court may 
 allow to parties 
 part or the 
 whole of the 
 annual income. 
 
 Practice as to 
 injunctions to 
 stay proceed- 
 ings at law to 
 be assimilated 
 to practice as 
 
22 
 
 THE NEW PROCEDURE ACT. 
 
 to special 
 injunctiona. 
 
 Answer of 
 defendant, on 
 motion for 
 injunction or 
 receiver, &c., 
 to be regarded 
 as an affidavit. 
 
 In case direc- 
 tions as to 
 practice, &c., 
 not followed, 
 Court may 
 make order 
 and award 
 costs. 
 
 Court of Chan- 
 cery not to 
 direct cases to 
 be stated for 
 opinions of 
 Court of 
 common law, 
 but to decide 
 the same. 
 
 Court miy 
 determine 
 legal title of 
 party seeking 
 relief without 
 requiring 
 parties to 
 proceed to 
 law. 
 
 Lord Chan- 
 cellor and 
 judges to 
 make general 
 rules and 
 orders for 
 carrying pur- 
 poses of this 
 act into effect. 
 
 may be graated upon interlocutory applications; supported 
 by affidavit,. in like manner as other special injunctions ' 
 are granted by the said Court, (a) 
 
 ' LIX. Upon application by motion or petition to the 
 Court, in any suit depending therein for an injunction 
 or a receiver, or to dissolve an injunction, or discharge an 
 order appointing a receiver, the answer of the defendant 
 shall, .for the purpose of evidence on such motion or 
 petition, be regarded merely as an affidavit of the 
 defendant, and affidavits may be received and read in 
 opposition thereto. 
 
 LX. In case any of the directions herein contained 
 with respect to the practice and course of proceeding in 
 the said Court of Chancery shall by mistake of parties 
 fail to be followed in any suit or proceeding in the said 
 Court it shall be lawful for the said Court, if it shall 
 think fit, upon payment of such costs as such Court 
 shall direct, to make such order giving effect to and 
 rectifying such proceedings as may be justified by the 
 merits of the case. 
 
 LXI. It shall not be lawful for the said Court of 
 Chancery, in cause or matter, to direct a case to be 
 stated for the opinion of any Court of common law, but 
 the said Court of Chancery shall have fuU power to 
 determine any questions of law, which in the judgment 
 of the said Court of Chancpry shall be necessary to be 
 decided previously to the decision of the equitable ques- 
 tion at issue between the parties. . 
 
 LXII. In cases where, according to the present prac- 
 tice of the Court of Chancery, such Court declines to 
 grant eqiutable rehef until the legal title or right of the 
 party or parties seeking such relief shall have been 
 established in a proceeding at law, the said Court may 
 itself determine such title or right without requiring ithe 
 parties to proceed at law to establish the same. 
 
 LXIII. The Lord Chancellor, with the advice and 
 assistance of the Master of the Bolls, the Lords Justices 
 of the Court of Appeal in Chancery, and the Vice 
 Chancellors, or any three of them, may and they are 
 hereby required from time to time to make general rules 
 and orders for carrying the purposes of this aet into 
 effect, and for regulating the times and form and mode 
 
 (a) See 45th Order, 7th of August 1852. 
 
15 & 16 VICT. c. 86. 23 
 
 of procedure, and generally the practice of the said 
 Court, in respect to the matters to which this act relates, 
 and for regulating the fees and allowances to all officens 
 of the said Court and solicitors thereof in respect to such 
 matters, and, so far as may be found expedient, for alter- 
 ing the course of proceeding hereinbefore prescribed 
 in respect to the matters to which this act relates, or 
 any of them ; and such rules and orders maj' from time 
 to time be rescinded or altered by the like authority ; 
 and all such rules and orders shall take effect as general 
 orders of the said Court, (a) 
 
 LXIV, All general rulee Mid orders of the Lord Such general 
 Chancellor, with such advice and assistance as aforesaid, ■■"•«' ^"^ 
 shall immediately after the making and issuing thereof °^j/before* 
 be laid before both Houses of Parliament, if Parliament Parliament. 
 be then sitting, or if Parliament be not then sitting, 
 within five days after the next meteting thereof: Pro- 
 vided always, that if either of the Houses of Parliament 
 shall, by any resolution passed within thirty-six days 
 •after such rules or orders have been laid before such 
 Houses of Parliament, resolve that the whole or any part 
 of such rules or orders ought not to continue in force, in 
 such case the whole, or such part thereof as shall be so 
 included in such resolution, shall, from and after such 
 resolution, cease to be binding. 
 
 LXV. And whereas the present examiners of the PowertoLord 
 £Iourt have been heretofore appointed for the purpose Chancellor 
 only of taking the depositions of witnesses in private, to ""fease 
 and upon written interrogatories prepared by counsel: examiners. 
 And whereas the public examination of witnesses orally, 
 under the provisions of this act, will materially alter the 
 nature of the duties and increase the responsibility 
 of the said examiners: Be it therefore enacted. That 
 it shall be lawful for the Lord Chancellor and he is 
 hereby empowered to order and direct a sum to be -paid 
 to each of the said examiners, out of the fund intituled 
 " The Suitors' Fee Fund," from and after the first of 
 November one thousand eight hundred and fifty-two, 
 such a sum as shall together with the sums now payable 
 make up the annual sum of one thousand five hundred 
 pounds : Provided always, that if either of the present jf examiner 
 examiners should feel himself unable or should decline decline to con- 
 tinue, Lord 
 
 (a) See 46th Order, 7th of August 1852. 
 
24 
 
 THE NEW PROCEDURE ACT. 
 
 Chancellor 
 may order a 
 certain annuity 
 to be paid to 
 him. 
 
 Construction 
 of terms. 
 
 Commence- 
 ment of act. 
 
 to continue his services in the same office upon the con- 
 ditions provided under this act, it shall be lawful for the 
 Lord Chancellor to order to be paid to such examiner 
 retiring an annuity of an amount not exceeding, three- 
 fourths of the salary which he has hitherto received. 
 
 LX VI. In the construction of this act the words 
 "bill of complaint" shall mean also and include informa- 
 tion ; the word " affidavit " shall mean also and include 
 affirmation ;- the expression "Lord Chancellor" shall 
 mean and include the Lord Chancellor, Lord Keeper, 
 and Lords Commissioners of the Great Seal of the 
 United Kingdom for the time being ; and the expression 
 " General Order of the Lord Chancellor " shall mean 
 General Order of the Lord Chancellor with such advice 
 and assistance as aforesaid, (a) 
 
 LXVII. This act shall commence and take effect 
 from and after the first day of November one thousand 
 eight hundred and fifty-two; provided that it shall be 
 lawful for the Lord Chancellor, with such advice and 
 assistance as aforesaid, to make and issue any such 
 General Rules or Orders as aforesaid at any time after 
 the passing of this act, so as the same to be not made to 
 take effect before the time appointed for the commence- 
 ment of this act. (b) 
 
 (a) See 48th Order, 7th of August 1852. 
 (6) See 47th Order, 7th of August 1852j as to time of com- 
 mencement of those Orders. 
 
THE MASTER IN CHANCERY ABOLITION 
 ACT. 
 
 15 & 16 Vict. cap. 80. 
 
 An Act to abolish the Office of Master in Ordinary of the 
 High Court of Chancery, and to make Provision for the 
 more speedy and efficient Despatch of Business in the 
 said Court. [30th June 1852.] 
 
 Whereas proceedings before the Masters in ordinary of 
 the High Court of Chancery are attended with great 
 delay and expense, and it is expedient that the business 
 now disposed of in the oflBce of such Masters should be 
 transacted by and under the more immediate direction 
 and control of the Judges of the said Court : Be it there- 
 fore enacted by the Queen's most excellent Majesty, by 
 and with die advice and consent of the lords spiritual 
 and temporal, and commons, in this present parliament 
 assembled, and by the authority of the same, as follows : 
 
 I. The office of Master in ordinary of the High Court Office of mas- 
 of Chancery shall be and the same is hereby abolished, tera in ordinary 
 but reserving and subject to the execution by the present abolished'^ 
 Masters in ordinary of the said Court, as such, of the 
 
 duties hereinafter provided for; and until they are re- 
 leased under this act they shall, for the performance of 
 such duties, continue to have all the powers conferred 
 upon them by any act of Parliament, or otherwise vested 
 in them. 
 
 II. No vacancy which has already occurred or may Vacancies in 
 hereafter occur in the office of Master in ordinary of the office of Mas- 
 said Court shall be filled up, nor shall any future Ac- ^1{{J°^^^° ^ 
 countant General be made or become one of the Masters 
 
 in ordinary. 
 
26 
 
 THE MASTER IN CHANCERY ABOLITION ACT. 
 
 Two of the 
 Masters in 
 ordinary 
 released firom 
 their duties 
 on first day 
 of Michael- 
 mas Term, 
 1852, &c. 
 
 Proviso as 
 to certain 
 matters 
 depending 
 before the 
 said Masters. 
 
 Option to 
 Masters to 
 retire ac- 
 cording to 
 seniority, &c. 
 
 Power to Lord 
 Chancellor 
 to release 
 remaining 
 Masters. 
 
 Masters' 
 salaries and 
 coinpepEation 
 allowance 
 continued by 
 way of retiring 
 pensions, &c. 
 
 III. On the first day of Michaelmas Term one thou- 
 sand eight hundred and fifty-two James William Farrer 
 Esquire and William Brougham Esquire, two of the 
 Masters in ordinary of the said Court, shall be released 
 from their duties as such Masters ; and as often there- 
 B&er as, in the judgment of the Lord Chancellor, from 
 the state of business in the said Court, any other Master 
 or Masters can be spared, it shall be lawful for the Lord 
 Chancellor to release any such Master or Masters at such 
 time or times as to him shall seem meet: Provided 
 always, that nothing in this act contained shall extend 
 to release, or to authorize the Lord Chancellor to re- 
 lease, any of the Masters fi-om attendance upon the 
 House of Lords without the order of the House: Pro- 
 vided also, that if, from the nature of any particular 
 matter or matters depending before either of the said 
 Masters hereinbefore respectively named, it shall in the 
 opinion of the Lord Chancellor be desirable that such 
 matter or matters should be worked out by or before the 
 same Master before whom the same shall be depending, 
 it shall be lawful for the Lord Chancellor to direct suoh 
 Master to continue the prosecution of such matter or 
 matters, and such Master shall prosecute the same ac- 
 -cordingly, in the same manner and with the same powers 
 in every respect as' if he had not been released firom his 
 duties under this act. 
 
 IV. Every Master to be released by the Lord Chan- 
 cellor shall have the option to retire tendered to him 
 ■according to his seniority in office ; and if any such 
 Master shall, for one calendar month after such option 
 tendered to him, neglect or decline to avail himself 
 thereof then the Lord Chancellor may tender the like 
 option to the next in succession in seniority in office, 
 and so toties quoties ; but when the Lord Chancellor 
 ^hall be of opinion that the services of none of the 
 Masters are any longer necessary for the due execution 
 of the business of the said Court, it shall be lawful for 
 him to release^every remaining Master. 
 
 V. Each one of the Masters to be so released on the 
 first day of Michaelmas Term one thousand eight hun- 
 dred and fifty-two shall nevertheless continue entitled to 
 receive during his life, by way of retiring pension, the 
 full amount of his salary as such Master, including the 
 amount of the compensation allowance payable to him 
 
15 & 16 VICT. c. 80. 27 
 
 as such Master; and every Master who may be so re- 
 leased subsequent^ to the same first day of Michaelmas 
 Term one thousand eight hundred and fifty-^two shall 
 also continue entitled to receive by way of retiring pen- 
 sion the full amount of his salary as shch Master. 
 
 VI. The salaries or retiring pensions and compensa- Retiring 
 tion allowances payable to the Masters so to be released fo be°''ai'd^n 
 shall continue or be payable out of the same funds, the same 
 on the days, and in the same manner in all respects, manner as 
 sa their present salaries and compensation allowances ^^f^^es 
 respectively. 
 
 VII. In order as expeditiously as may be to wind up Power to 
 all the causes, matters, and things which may from time Masters to 
 to time be depending before or have been referred to partUs, &o., 
 the Masters in ordinary of the said Court, it shall be and to settle 
 lawful for every Master, at any time after the passing of *""* ""? "P 
 this act, to summon as he shall deem &t all or any -of the before them. 
 parties to any cause, matter, or thing so depending, or 
 
 their solicitors, and thereupon to proceed with such 
 cause, matter, or thing, and give such directions and 
 make such order as he may think necessary for the pur- 
 pose of settling and winding up the same; but any such 
 order shaU be subject to be discharged or varied by the 
 Court upon application made for that purpose ; and the 
 Master shall be at liberty to proceed for the purposes 
 aforesaid in the absence of any of the parties or solicitors 
 neglecting or refusing to attend the summons. 
 
 VIIL In case the Master shall be unable, by reason Power to 
 of the conduct of parties, or otherwise, to finally dispose ^°"!*' "P°" 
 of any cause, matter, or thing, he shall be at liberty to report or cer- 
 dispose of any part thereof within his power, and to tificate, to 
 report and certify on the whole of the case ; and upon "*''* order 
 such report or certificate the Court shall make such or final°dia" "" 
 order as it shall think proper on all or any of the parties, posal of any 
 for the further prosecution of the suit or matter, or for £o^'' f "^ "^"^ 
 the final disposal thereof, and for tfhe paymenrt of the of'costeT&c. 
 costs thereof, including any of the costs which may have 
 been incurred by reason of the conduct of the parties. 
 
 IX. In the event of the parties in any cause, matter, O" neglect 
 or thing, or their solicitors, refusing or neglecting, within triSg mLict's 
 a time to be fixed by the Master, to bring the Master's report before 
 report or certificate before the Court, the same may, by t^>e Court, 
 direction of the Master, be brought before the Court by j^S'fee 
 the solicitor for the time being to the suitor's fund ; and fund to do so. 
 
28 
 
 THE MASTER IN CHANCEUY ABOLITION ACT. 
 
 and his costs 
 provided for. 
 
 No fresh 
 references to 
 Masters, 
 except in 
 cases already 
 before them, 
 and in matters 
 under Wind- 
 ing-up Acts, 
 1848 and 
 1849. 
 
 Until all the 
 Masters are 
 released fcom 
 their duties, 
 those r^nain- 
 ing shall pro- 
 secute all the 
 business de- 
 pending. 
 
 Power now 
 vested in 
 Masters re- 
 served to them 
 for such pur- 
 
 Power to 
 Master of the 
 Bolls and Vice 
 Chancellors 
 to sit at cham- 
 bers for the 
 despatch of 
 business, &c. 
 
 the Court is hereby empowered to order payment of the 
 ' costs and expenses of the solicitor to the suitor's fund 
 out of such of the funds in the cause, matter, or thing, 
 or by such parties, as to the Court shall seem just ; and 
 in case payment thereof cannot be obtained by any of 
 the means aforesaid, the same, by the direction of the 
 Court, may be paid out of the suitor's fund. 
 
 X. From and after the first day of Michaelmas term 
 one thousand eight hundred and fifty-two no reference 
 shall be made to any of the Masters in ordinary of the 
 said Court, except in cases in which, from some pre- 
 vious reference made in the cause or matter, or in some 
 other cause or matter connected therewith, the Court 
 may think it expedient to make such reference, and 
 except in matters arising under the Joint Stock Com- 
 panies Winding-up Acts, 1848 and 1849: Provided 
 always, that until all the Masters in ordinary of the said 
 Court shall have been removed by resignation, death, or 
 otherwise, or have been released from their duties under 
 this act, such of the Masters in ordinary of the said 
 Court as shall for the time being remain in office, and 
 shall not be released fi-om their duties under this act, 
 shall prosecute all the business which on thq first day of 
 Michaelmas term one thousand eight hundred and fifty- 
 two shall be depending before the Masters, and also all 
 the references which before the said first day of Michael- 
 mas term one thousand eight hundred and fifty-two shall 
 have been made under decrees or orders of the Court, or 
 which on or after the same first day of Michaelmas term 
 shall be made in relation to such excepted matters as 
 aforesaid; and the same, if necessary, shall be distributed 
 amongst such remaining Masters in such manner as the 
 Lord Chancellor shall direct : and the powers and autho- 
 rities now vested in them are hereby reserved to them 
 for the purpose of executing and performing all the 
 duties, matters, and things which may be still referred 
 to them, or which they may be lawfully called upon to 
 perform. 
 
 XL From and after the first day of Michaelmas term 
 one thousand eight hundred and fifty-two it shall be 
 lawful for the Master of the Rolls and the Vice Chan- 
 cellorfe for the time being and they are hereby required 
 to sit at chambers for the despatch of such part of the 
 business of the said Court as can, without detriment to 
 
15 & 16 VICT. c. 80. 
 
 29 
 
 the public advantage arising from the discussion of ques- 
 tions in open Court, be heard in chambers, according to 
 the directions hereinafter in that behalf specified or 
 referred to; and the times at and during which they 
 respectively shall so sit shall be from time to time fixed 
 by them respectively. 
 
 XII. The chamber business of the Master of the 
 Rolls and of every Vice Chancellor shall be carried on 
 in conjunction with his Court business ; but as no rooms 
 are attached to the Courts of the Vice Chancellors in 
 which such chamber business can be transacted, it shall 
 be lawful for the Lord Chancellor to cause chambers to 
 be provided for every of them respectively for that pur- 
 pose until Courts with proper rooms attached can be 
 provided for them. 
 
 XIII. The Master of the Rolls and every of the Vice 
 Chancellors respectively when sitting in chambers shall 
 have the same power and jurisdiction in respect of the 
 business to be brought before them, as if they were 
 respectively sitting in open Court. 
 
 XIV. The orders made by the Master of the Rolls 
 and Vice Chancellors respectively when sitting in cham- 
 bers shall ordinarily be drawn up there by their respec- 
 tive clerks, to be appointed as hereinafter mentioned, but 
 with power to each of such judges to direct any of such 
 orders to be drawn up by the registrar of the said Court 
 in like manner as orders made by a judge of the said 
 Court in open Court are drawn up, for which purpose 
 the registrars of the said Court shall, when required, 
 attend the Master of the Rolls and the Vice Chancellors 
 respectively when sitting at chambers in such order and 
 manner as shall be found most convenient for furthering 
 the business of the said Court, and as the Lord Chan- 
 cellor, with the concurrence of the Master of the Rolls 
 and Vice Chancellors, or any two of them, shall from 
 time to time by any General Order direct, (a) 
 
 XV. All orders of the Master of the Rolls or of any 
 Vice Chancellor, made by him at chambers, shall have 
 the force and effect of orders of the Court of Chancery, 
 
 (a) See as to creditors leaving a list of their claims, the 42nd of 
 the Orders of the 16th of October 1852; and as to costs, the 55th 
 and 56th of the same Orders. 
 
 Power to Lorf 
 Chancellor to 
 provide cham- 
 bers for the 
 Masters of the 
 Rolls and Vice 
 Chancellors. 
 
 Judges to have 
 same power 
 and jurisdic- 
 tion as in open 
 Court. 
 
 Orders made 
 in chambers to 
 be ordinarily 
 drawn up by 
 judges' clerks, 
 but judges 
 may direct 
 them to be 
 drawn up by 
 registrars of, 
 the Court, 
 and may re- 
 quire their 
 attendance at 
 chambers for 
 the purpose. 
 
 Orders made 
 at chambers 
 to have same 
 force as orders 
 of Court, &e. 
 
30 
 
 THE MASTER IN CHANCERY ABOLITION ACT. 
 
 Power to 
 judges to 
 appoint two 
 chief clerks to 
 each Court to 
 assist in the 
 business of the 
 Court. 
 
 Chief clerk to 
 judges to have 
 been chief 
 clerks to 
 Masters in 
 ordinary, or 
 solicitors or 
 attornies of 
 ten years' 
 practice. 
 
 Certain chief 
 clerks to be 
 chief clerks of 
 threeof the 
 equity judges. 
 
 Power to 
 judges to 
 appoint junior 
 clerks. 
 
 Power to Lord 
 Chancellor to 
 remove any 
 officer ap- 
 pointed under 
 this act en- 
 gaging in 
 other employ- 
 ment or accept- 
 
 and such orders may be signed and enrolled in like 
 manner, (a) 
 
 XVI. It shall be lawful for the Master of the Rolls, 
 and everj of the Vice Chancellors for the time being, 
 respectively, with the approbation of the Lord Chan- 
 cellor, to appoint two chief clerks each to be respectively 
 attached to each such judge and his successors in office, 
 for the purpose of assisting in the general business of 
 each Court, and the causes and matters belonging thereto, 
 and on any vacancy in such office of chief clerk to 
 supply such vacancy. 
 
 X VII. No person shall be appointed chief clerk to the 
 Master of the Rolls or any Vice Chancellor unless he shall 
 have been chief clerk to one of the Masters in ordinary of 
 the said Court, or have been admitted on the roll of solicitors 
 or attornies in one of the Courts at Westminster Hall, and 
 practised as such solicitor or attorney for the period of 
 ten years at least immediately preceding his appointT 
 ment: Provided always, that George Whiting and Henry 
 Leman, the present chief clerks of the said Masters 
 hereby released as aforesaid, and Charles Pugh, chief 
 clerk in the office of the Master now vacant, shall 'on the 
 said first day of Michaelmas term one thousand eight 
 hundred and fifly-two become and they are hereby 
 appointed chief clerks of three of the said equity judges, 
 and their respective successors in office. 
 
 XVIII. It shall be lawful for the judge of each Court 
 to appoint a junior clerk to each chief clerk of his Court, 
 and on any vacancy in such office to supply siich 
 vacancy. 
 
 XIX. If any person who shall accept any office under 
 this act shall engage in any other employment whatever 
 whilst he holds such office, or shall receive any sum of 
 money or benefit other than his salary and what may be 
 allowed or directed to be taken by him under any act of 
 Parliament or order of the said Court or of the Lord 
 Chancellor, for any act done or pretended to be done, or 
 
 (a) See as to orders directing accounts and inquiries, the 8th, 
 9th, 10th and 11th of the General Orders of the 16th of October 
 1852 ; and as to receivers, the 13th, 14th, 15th, 3Ist and 32nd of 
 the same Orders ; and as to enterihg orders, when drawn up, the 
 28th of the same General Orders ; and as to the register to be kept 
 of proceedings, the fl4th of the same Orders. 
 
15 & 16 VICT. c. 80. 31 
 
 any attendance given or pretended to be given, either ing any fee or 
 with or without the consent or direction or pretended emolument 
 consent or direction of the judge, in relation to or arising ",i,*, [j,g„ 
 out of any proceeding in his ofiice, or in any office of or his salary. 
 connected with the Court of Chancery, or if such person, 
 being or having been a solicitor or attorney, shall directly 
 or indirectly receive or secure to himself any continuing 
 benefit from any business or firm in which he may have 
 been engaged previously to his appointment to such office, 
 the person so offisnding may be removed from his office 
 by order of the Lord Chanpellor, and shall be rendered 
 incapable of afterwards holding any office, situation, or 
 eBoployment in the said Court. 
 
 XX. Every solicitor or attorney who shall be appointed Solicitors, &c. 
 to and shall accept any office under this act shall cease appoi^ed to 
 to be an attorney or solicitor, and shall forthwith procure *°^g, ji,is act 
 himself'to be struck off the roll of solicitors of the High to be struck off 
 Court of Chancery, and off the roll of any of Her Ma- "■« ™"'- 
 jesty's Courts of Record at Westminster on which his 
 
 name may be. 
 
 XXI. Every such chief clerk shall hold his office Chief clerks 
 during his good behaviour, and so long as he shall per- '° ^°^^ "^"^ 
 sonally give his attendance upon his duties, and shall behaJfofr" 
 conduct himself honestly and faithfully in the execution 
 
 of the duties of his office, but subject to the power here- 
 inafter contained to remove any chief clerk for any cause 
 which the Lord Chancellor and judges removing may 
 think sufficient. 
 
 XXIL Every such junior clerk shall hold his office at and clerks 
 the pleasure of the judge to whose Court he shall be "l"""? p'^a- 
 attached. 
 
 XXHL Such chief clerks and junior clerks shall be chief and 
 respectively under the control of the judge to whose junior clerks 
 Court they shall respectively be attached, and shall at- ^ntrol'an*d 
 tend at such places, during such times, and for such direction of 
 hours in each day, and perform such duties, as such judges- 
 judge shall from time to time direct. 
 
 XXIV. Every chief clerk and every junior clerk to Chief and 
 be appointed under this act shall be subject and liable to J""|<"" ^'e'^s 
 such and the same prohibitions, prosecutions, penalties, penalties" &™° 
 and punishments, as are by an act passed in the session as imposed, 
 holden in the third and fourth years of the reign of King *^ ""der act 
 William the Fourth, chapter ninety-four, imposed and ^ g^ ,, ™' ' 
 directed with respect to persons holding any office. 
 
32 
 
 THE MASTER IN CHANCERY ABOT-ITION ACT. 
 
 respects offi- 
 cers of the 
 Court of 
 Chancery. 
 
 Power to Lord 
 Chancellor, 
 with concur- 
 rence of 
 judges, to 
 remove chief 
 clerks. 
 
 Business to be 
 disposed of in 
 chambers by 
 the judges. 
 
 Judges may 
 adjourn from 
 open Court to 
 chambers, and 
 vice oersdj the 
 consideration 
 of any matter. 
 
 Mode of pro- 
 ceeding before 
 judges at 
 chambers to 
 be by summons 
 as at common 
 law. 
 
 sjtuatiop, or employment in the said Court of Chancery, 
 or under any of the judges or officers thereof, in the 
 same manner as if the enactments therein contained 
 relating to such officers of the said Court respectively 
 were here repeated. 
 
 XXV. It shall be lawful for the Lord Chancellor, 
 with the concurrence of the Master of the Rolls and 
 Vice Chancellors for the time being, or any two of them, 
 by any order to remove any chief clerk to be appointed 
 under this act from his office, without stating any cause 
 for such removal. 
 
 XXVI. The business to be disposed of by the Master 
 of the Rolls and Vice Chancellors respectively while 
 sitting at chambers shall consist of such of the following 
 matters as the judge shall from time to time think may 
 be more conveniently disposed of in chambers than in 
 open Court ; videlicet, applications for time to plead, 
 answer, or de'mur; for leave to amend bills or claims; 
 for enlarging publication; and also applications for the 
 production of documents ; applications relating to the 
 conduct of suits or matters; applications as to the guar- 
 dianship and maintenance of infants ;^ matters connected 
 with the management of property ; and such other mat- 
 ters as each such judge may from time to time see fit, 
 or as may from time to time be directed by any General 
 Order of the Lord Chancellor. 
 
 XXVII. It shall be lawful for the Master of the Rolls 
 and every of the Vice Chancellors respectively when 
 sitting in open Court to adjourn for consideration in 
 chambers any matter which, in the opinion of such 
 judge, may be more conveniently disposed of in cham- 
 bers, or, when sitting in chambers, to direct any matter 
 to be heard in open Court which he may think ought to 
 be so heard. 
 
 XXVIII. The mode of proceeding before the Master 
 of the Rolls and Vice Chancellors respectively at 
 chambers shall be by summons, and as near as may be 
 according to the form now adopted by the judges of 
 the Superior Courts of common law when sitting at 
 chambers, (a) 
 
 (a) See as to the summons, the Orders of the 16th of October 
 1852, 1st to 6th inclusive; and as to the form of the summons, 
 Schedule (A.) to those Orders ; and as to extending appearances;, 
 the 7th of the same Orders. 
 
15 & 16 VICT. c. 80. 33 
 
 XXIX. From and after the first day of Michaelmas Power to the 
 term one thousand eight hundred and fifty-two the judges to 
 Master of the Rolls and the Vice Chancellors respec- ^"ter^ &„. 
 lively shall have the sole power (subject to any rules shall be heard 
 which may be made by the Lord Chancellor with the ^"^ j"!*"'" 
 advice and assistance of them or any two of them) to ^emselves 
 order what matters and things shall be investigated by and what by 
 and before their respective chief clerks, either with or their chief 
 without their direction, during their progress, and what 
 
 matters and things shall be heard and investigated by 
 themselves ; and particularly, if the judge shall so 
 direct, his chief clerks respectively shall take accounts, 
 and make such inquiries as have usually been prosecuted 
 before the chief clerks of the present Masters ; and the Right to 
 judge shall give such aid and directions in every or suitor to bring 
 any such account .or inquiry as he may think proper, b"forethe 
 but subject nevertheless to the right hereinafter provided judge. 
 for th,e suitor to bring any particular point before the 
 judge himself, (a) 
 
 XXX. Each chief clerk shall, for the purpose of any Power to chief 
 proceedings directed by the Master of the Rolls or any c'erks to issue 
 Vice Chancellor to be taken before him, have full power ^^d^^JJ^'.""""" 
 to issue advertisements, to summon parties and witnesses, monses, to 
 
 to administer oaths, to take affidavits and acknowledg- administer 
 ments, other than acknowledgments by married women, °^^ %dee ^ 
 to receive aflBrmations, and, when so directed by the shall direct. 
 judge to whose Court he is attached, to examine parties 
 and witnesses either upon interrogatories or viva voce, as 
 such judge shall direct, (b) 
 
 XXXI. Parties and witnesses so summoned shall be Parties, &c. 
 bound to attend in pursuance of any such summons, and "ft attending 
 shall be liable to process of contempt, in like manner as Jess of cm-"" 
 parties or witnesses are now liable thereto in case of tempt and to 
 disobedience to any order of the said Court, or in case penalt'«s fo"" 
 of default in attendance, in pursuance of any order of ^,.'* sweanng, 
 the said Court, or of any writ of subpoena ad testifi- 
 
 (d) See as to the course of proceedings in Chambers, the Orders 
 of the 16th of October 1832, 16th to 23rd inclusive ; and 29th to 
 32nd inclusire ; and as to the deposit of documents, the 57th of the 
 same Orders. 
 
 (6) See as to advertisements, the 33rd, 34th, 35th, 36th, and 
 41st of the Orders of the 16th of October 1852; and as to evi- 
 -dence, the 24th, 25th, 26th, 27th, 37th and 38th of the same 
 Orders. 
 
 D 
 
34 
 
 THE MASTER IN CHANCERY ABOLITION ACT. 
 
 Resalt of 
 proceedings 
 before chief 
 clerk to be 
 embodied in 
 form of short 
 certificate, &c. 
 
 No exceptions 
 to lie to certi- 
 ficate, &c. 
 
 Parties at 
 liberty to 
 take opinion of 
 judge upon 
 any particular 
 I point. 
 
 Certificate, 
 &C., signed 
 and adopted 
 by judge, 
 binding on 
 all parties, 
 unless dig- ' 
 charged or 
 varied. 
 
 candum; and all persons swearing or afRrming before 
 any such chief clerk shall be liable to all such penalties, 
 punishments, and consequences for any wilful and corrupt 
 false swearing or affirming contained therein as if the 
 matters sworn or affirmed had been sworn and affirmed 
 before any person now by law authorized to administer 
 oaths, to take affidavits, and to receive affirmations. 
 
 XXXII. The directions to be given by the Master of 
 the B,oUs or any Vice Chancellor for or toucjiing any 
 proceedings before his chief clerk shall require no par- 
 ticular form, but the result of such proceedings shall be 
 stated in the shape of a short certificate to the judge, 
 and shall not be embodied in a formal report, unless in 
 any case the judge shall see fit so to direct; and when 
 the judge shall approve of such certificate or report 
 he shall sign the same in testimony of his adopting the 
 same, (a) 
 
 XXXIII. No exceptions shall lie to any certificate or 
 report of the chief clerk, although signed and adopted 
 by the judge; but any party shall, either during the 
 proceedings before such chief clerk, or within such time 
 after such proceedings shall have been concluded, and 
 before the certificate or report shall have been signed 
 and adopted, as the Lord Chancellor shall by any 
 General Order direct, be at liberty to take the opinion 
 of the judge upon any particular point or matter arising 
 in the course of the proceedings, or upon the result of 
 the whole proceeding when it is brought by the chief 
 clerk to a conclusion, (b) 
 
 XXXIV. When any certificate or report of the chief 
 clerk shall have been signed and adopted by the judge 
 the same shall be filed in like manner as reports are now 
 filed, and shall thenceforth be binding on all the parties 
 to the proceedings, unless discharged or varied, either at 
 Chambers or in open Court, according to the nature of 
 the case, upon application by summons or motions within 
 such time as shall be prescribed in that behalf by any 
 General Order of the Lord Chancellor; and nothing 
 
 (a) See as to the certificate, the 43rd, 44th, 45th and 46th of 
 the Orders of the 16th of October 1852, and for the form of the 
 certificate Schedule (E.) to the same Orders. 
 
 (b) See as to the time for taking the opinion of the Judge on the 
 certificate, the 47th of the Orders of the 16th of October 1852. 
 
15 & 16 VICT. c. 80. 35 
 
 herein contained shall prejudice or affect the power of 
 the Court at any time to open any such certificate or 
 report upon the same or the like grounds as any report 
 of a Master of the said Court which has been absolutely 
 confirmed may now be opened, (a) 
 
 XXXV. From and after the first day of Michaelmas Sections 13, 
 term one thousand eight hundred and fifty.two, the 3& 4 Wra?4, 
 thirteenth, fourteenth, and fifteenth sections of the act e. 94, repealed. 
 passed in the session of Parliament holdein in the third 
 
 and fourth years of the reign of his Majesty King 
 William the Fourth, chapter ninety-four, shall be re- 
 pealed. 
 
 XXXVI. From and after the first day of Michaelmas AH powers 
 term one thousand eight hundred and fifty-two all or ^I'gters'^to'be 
 any of the powers, authorities, and jurisdiction given to exercised by 
 the Masters in ordinary of the said Court by any act or judges, 
 acts then in force may be exercised by the Master of the 
 
 Rolls and Vice Chancellors respectively, (b) 
 
 XXXVII. From and after the first day of Michaelmas Power to 
 term one thousand eight hundred and fifty-two the judges to 
 powers given to the Masters in ordinary of the said powerrgiven 
 Court, and to the Court, by sections seven, eight, and by sections 7, 
 nine of this act, may be exercised by the Master of the ^, ?"'' ^ °^ , 
 Rolls and Vice Chancellors respectively with respect to to dispose of 
 causes, matters, and things which may be depending any cause, &c., 
 before them respectively in chambers ; and if and when '" °P^" Court. 
 any such judge shall be of opinion that any cause, 
 
 matter, or thing so depending ought to be finally dis- 
 posed of, unless the parties or some of them can show 
 good cause to the contrary, he shall direct the same to 
 stand in his paper in open Court, giving such notice 
 thereof, if any, as he shall deem right, and proceed to 
 dispose thereof accordingly. 
 
 XXXVIII. It shall be lawful for the Lord Chancellor, Power to Lord 
 with the advice and consent of the Master of the Rolls ^^"adl'S 
 and Vice Chancellors, or any two of them, and they are &c. of judges, 
 hereby required, forthwith to make and issue General to make rules 
 Rules and Orders for regulating the times and form and ^f^l^^g t*he 
 mode of procedure before the Master of the Rolls and mode of pro- 
 
 (a) See as to the proceedings upon the certificate, the Orders of 
 the 16th of October 1852, 48th to 53rd inclusive. 
 
 (J) See as to the powers of the judge at Chambers, the 58th 
 and 59th Orders of the 16th of October 1852. 
 
 d2 
 
36 
 
 THE MASTER IN CHANCERY ABOLITION ACT. 
 
 cedure at 
 chambers, 
 payment of 
 fees, &c. 
 
 Business in 
 Masters' 
 offices to be 
 conducted in 
 the same 
 manner as 
 ..similar busi- 
 ness is con- 
 ducted by 
 judges, &c'. 
 
 'Power to 
 judges at 
 chambers to 
 take opinion of 
 conveyancing 
 counsel in 
 certain matters. 
 
 Vice Chancellors respectively, sitting at chambers, and 
 their respective chief clerks, and generally the practice 
 of the said Court in respect of the matters to which this 
 act relates, and for regulating the fees and allowances to 
 solicitors of the said (!)ourt in respect to such matters, 
 and also for regulating the fees to be payable by suitors 
 of the said Court to the officers thereof in respect of the 
 business to be conducted before the Master of the Rolls 
 and Vice Chancellors respectively sitting at chambers, 
 and their respective chief clerks ; and such rules and 
 regulations may from time to time be rescinded, altered, 
 varied, or added to by the like authority; and all such 
 rules and regulations as aforesaid shall take effect as 
 General Orders of the said Court : Provided always, 
 that no greater amount of fees shall be payable by the 
 suitors of the said Court to the officers thereof, in respect 
 of the business to be conducted before the Master of the 
 Rolls and the Vice Chancellors respectively sitting at 
 chambers, and their respective chief clerks, than is now 
 levied in respect of similar or analogous business in the 
 Master's offices. 
 
 XXXIX. From and after the said first day of Michael- 
 mas term one thousand eight hundred and fifty-two the 
 course of practice and proceeding in the offices of the 
 Masters in ordinary of the said Court, so far as the same 
 may be inconsistent with the rules and regulations to be 
 so as aforesaid made by the Lord Chancellor with such 
 advice and consent as aforesaid, shall be abolished ; and 
 the Masters in ordinary of the said (^ourt shall, with 
 reference to the proceedings before them, adopt all such 
 rules and regulations, and shall conduct the business of 
 their respective offices, as nearly as may be, in the man- 
 ner in which similar business, shall be conducted by the 
 Master of the Rolls and Vice Chancellors respectively, 
 save only that the Master, instead of communicating 
 directly with the judge, is to report shortly the result of 
 his inquiries to the Court. 
 
 XL. From and after the first day of Michaelmas term 
 one thousand eight hundred and fifty-two it shall be 
 lawful for the Court or for any judge thereof when 
 sitting at chambers to receive and act upon the opinion 
 of conveyancing counsel in actual practice, to be nomi- 
 nated as hereinafter mentioned, in all cases in which, 
 according to the present practice of the Court and of the 
 
15 & 16 VICT. c. 80, 37 
 
 Master's office, it has been usual for the Master to 
 require or receive the opinion of conveyancing counsel 
 for his aid and assistance in the investigation of the title 
 to an estate, with a view to an investment of money in 
 the purchase or on mortgage thereof, or with a view to 
 a sale thereof, or in the settlement of a draft of a con- 
 veyance, mortgage, settlement, or other instrument, or 
 otherwise, and in such other cases as the Lord Chan- 
 cellor shall by any General Order direct ; but it shall be Parties may 
 competent for any party to object to any opinion of any object to such 
 such counsel when he shall deem it open to objection, ^^y be'dTs- " 
 and thereupon the pciint in dispute shall be disposed of posed of in 
 by the Court, or by the judge sitting in chambers, chambers or 
 according to the nature of the case. °P™ °" " 
 
 XLL It shall be lawful for the Lord Chancellor to Power to Lord 
 nominate any number of conveyancina; counsel in actual Clianoellor to 
 
 •', , . , •' , ,,=>, . J nommate not 
 
 practice, not less than six, who shall have practised as less than six 
 such for ten years at least, to be the conveyancing conveyancing 
 counsel upon whose opinion the Court, or any judge oounseloften 
 thereof, may act in any of the cases last before men- tice,&c. 
 tioned, and to supply vacancies in such list from time to 
 time, and to distribute the business among such counsel 
 in such order and manner as to the Lord Chancellor 
 shall seem fit. 
 
 XLIL It shall be lawful for the said Court, or any Power to 
 judge thereof, in such way as they may think fit, to obtain the 
 obtain the assistance of accountants, merchants, engi- accountants, 
 neers, actuaries, or other scientific persons, the better merchants, &c. 
 to enable such Court or judge to determine any matter 
 at issue in any cause or proceeding, and to act upon the 
 certificate of such persons. 
 
 XLIII. The allowances in respect of fees to such Taxing master 
 conveyancing counsel, accountants, merchants, engineers, to regulate 
 actuaries, and other scientific persons shall be regulated veyancing" 
 by the taxing Master of the said Court, subject to an counsel, &c., 
 appeal to the judge to whose Court the cause or matter subject to 
 shall be attached, whose decision shall be final. "^''** ' 
 
 XLlV. There shall be paid to every chief clerk of the Salary of 
 Master of the Rolls and Vice Chancellors respectively ^l^^^J'l^ 
 the net yearly salary of one thousand two hundred chief clerk! 
 pounds, and to every junior clerk to be appointed under and 2501. to 
 this act the net yearly salary of two hundred and fifty 'f^^^^J'^^'j^'" 
 pounds; and it shall be lawful for the Lord Chancellor Lwe'r to the 
 from time to time by any order to direct that the salary Lord Chan- 
 of any such chief clerk as aforesaid may be increased from <=«""' ^°"^ 
 
38 
 
 THE MASTER IN CHANCERY ABOLTTION ACT. 
 
 time to time 
 to increase 
 same to 1600A 
 and 300/. 
 respectively. 
 
 Pensions to 
 chief and 
 junior clerks 
 in cases of 
 permanent 
 infirmity. 
 
 On retirement 
 of Masters, 
 their chief 
 clerics to be 
 entitled to 
 retiring pen- 
 sions of same 
 amount as 
 salary. 
 
 Compensation 
 to junior clerks 
 
 time to time until the same shall amount to the net 
 yearly sum of one thousand five hundred pounds, and to 
 difect that tJie salary of such junior clerk may be in- 
 creased to the net yearly sum of three htmdred pounds : 
 Provided always, that no such increase shall be made to 
 any such chief clerk until he shall have been in office for 
 three years, nor to such junior clerk until he shall have 
 been in office five years, nor in either case without a 
 certificate from the judge to whose Court such chief 
 clerk or junior clerk shall be attached, that he has con- 
 ducted himself in such office to the entire satisfaction of 
 such judge: Provided also, that the salary to such chief 
 clerk shall not be increased at any one period by any 
 greater amount than the sum of one hundred pounds. 
 
 XLV. It shall be lawful for the Lord Chancellor, 
 with the consent of the commissioners of her Majesty's 
 treasury, by any order made on a petition presented to 
 him for that purpose, to order (if he shall think fit) to 
 be paid to any person executing the office of chief clerk 
 or junior clerk to the jMaster of the Rolls or any of the 
 Vice Chancellors, who shall be afflicted with some per- 
 manent infirmity disabling him from the due execution 
 of his office, and shall be desirous of resigning the same, 
 an annuity not exceeding two-third parts of the yearly 
 salary which such person shall be entitled to at the time 
 of presenting such petition, to be paid and payable at 
 the same times and out of the same funds as compensa- 
 tions under this act are directed to be paid. 
 
 XLVI. It shall be lawful for every person who on the 
 first day of Hilary term one thousand eight hundred and 
 fifty-two held the office of chief clerk to any of the 
 Masters in Ordinary of the said Court of Chancery, and 
 who is not hereby appointed a chief clerk to the Master 
 of the Rolls or to one of the Vice Chancellors under the 
 authority of this act, upon the Master to whom he shall 
 be such chief clerk being released from the duties as such 
 Master under the authority of this act, or upon the death 
 or resignation of any such Master previously to his being 
 so released, to continue to be entitled to receive during 
 his life, by way of retiring pension, the full amount of 
 his salary as such chief clerk, such salary to be paid and 
 payable out of such funds and in such manner as herein- 
 after in that behalf directed. 
 
 XL VII. It shall be lawful for any person who on 
 the said first day of Hilary term one thousand eight 
 
15 & 16 VICT. c. 80. 39 
 
 hundred and fifty- two held the office of junior clerk to on retirement 
 anj Master in ordinary of the said Court of Chancery °f Masters. 
 hereby released, or who shall be released by the Lord 
 Chancellor under the authority of this act, to make a 
 .claim for compensation to the commissioners of Her 
 Majesty's treasury for the time being, at any time after 
 the Master in whose office he shall have been employed 
 shall have been released; and such commissioners are 
 hereby required, within the space of six calendar months 
 after every such claim shall be made, by examination 
 upon oath or otherwise, which oath they and every 
 of them are and is hereby authorized to administer, to 
 inquire whether any, and, if any, what compensation 
 ought to be made to such person claiming such coqjpen- 
 sacion ; and in all cases in which it shall appear to 
 the said commissioners that compensation ought to be 
 granted, it shall be lawful for the said commissioners, by 
 warrant under their hands, to order and direct that 
 such annual compensation shall be made to the persons 
 claiming such compensations as aforesaid, or any of them, 
 as to the said commissioners in their discretion shall 
 seem just and reasonable; and all such compensations 
 shall be paid and payable out of such funds and in such 
 manner as hereinafter in that behalf directed : Provided 
 always that an account of all such compensation shall, 
 within fourteen days next after the same shall be so 
 granted, be laid on the table of the House of Commons, 
 if Parliament shall be then assembled, or if Parliament 
 shall not be then assembled, then within fourteen days 
 after the meeting of the Parliament then next following. 
 
 XLVIII. Except as herein otherwise provided, ail Salaries &c. 
 salaries under this act shall grow due from day to day, *° \ P*"* ^ 
 
 ' Qu&rtcrlv out 
 
 but shall be payable, under an order of the Lord Chan- of the suitors' 
 cellor, on the third day of February, the third day of fee fund ac- 
 May, the third day of August, and the third day of °°"°*- 
 November in every year, or on such other days as the 
 Lord Chancellor shall from time to time by any order 
 direct, and shall be paid to the parties entitled thereto, 
 or their respective executors or administrators, out of the 
 fund standing in the name of the Accountant General 
 of the Court of Chancery, to the account intituled, 
 "The Suitors' Fee Fund Account," but subject and 
 without prejudice to the payment of all salaries and other 
 sums of money by any former act or acts now in force 
 directed or authorized to be paid thereout. 
 
40 
 
 THE MASTER IN CHANCERY ABOLITION ACT. 
 
 Payment of 
 compensations 
 to be made 
 quarterly out 
 of parliamen- 
 tary securities. 
 
 On appoint- •. 
 ment of Mas- 
 ters or clerks 
 to office or 
 employment 
 under the 
 Crown, the 
 retiring pension 
 or compensa- 
 tion under 
 this act to be 
 regulated by 
 the salary, fiic. 
 of such office 
 or employment. 
 
 XLIX, Except as herein otherwise provided, all com- 
 pensations under this act shall grow due from day to 
 day, but shall be payable on the third day of February, 
 the third day of May, the third day of August, and the 
 third day of November in every year, or on such other 
 days as the Lord Chancellor shall from time to time by 
 any order direct, and shall be paid to the parties entitled 
 thereto, or their respective executors or administrators, 
 out of the interest and dividends of the government or 
 parliamentary securities now or hereafter to be placed in 
 the name of the Accountant General of the Court of 
 Chancery to the two accounts intituled "Account of 
 Monies placed out for the Benefit and better Security 
 of the Suitors of the High Court of (Chancery," and 
 "Accoimt of Securities purchased with surplus Interest 
 arising from Securities carried to an Account of Monies 
 placed out for the Benefit and better Security of the 
 Suitors of the High Court of Chancery," or either of 
 them, by the Governor and Company of the Bank of 
 England, by virtue of any order or orders of the Lord 
 Chancellor to be made from time to time for that 
 purpose, without any draft from the Accountant General, 
 but subject and without prejudice to the payment of all 
 salaries and other sums of money by any former act or 
 acts now in force directed or authorized to be paid 
 thereout. 
 
 L. If at any time hereafter any of the Masters in 
 Ordinary of the said Court, or any of their chief or 
 junior clerks, shall be appointed to and shall accept any 
 office or employment connected with any court of law 
 or equity, or under the crown, or in any public depart- 
 ment under the crown, and if the salary attached to 
 such office or employment, or any retiring pension or 
 allowance in respect thereof, shall equal or exceed in 
 amount .the retiring pension or compensation payable to 
 such Master or such clerk under this act, such last- 
 mentioned retiring pension or compensation shall, during 
 the continuance of such Master or such clerk in such 
 office or employment, or so long as he shall be in the 
 receipt of any retiring pension or allowance in respect 
 thereof equal to or greater than his retiring pension or 
 coaipensation under this act, cease to be payable to such 
 Master or such clerk, as the case may be; and if the 
 salary attached to such office, or the retiring pension 
 or allowance in respect thereoti shall be less than the 
 
IS & 16 VICT. c. 80. 41 
 
 amount of such Master's retiring pension or such clerk's 
 compensation under this act, such retiring pension or 
 compensation under this act shall be reduced by the 
 amount of such salstry or of such retiring pension or 
 allowance, as the case may be. 
 
 LI. Such of the Masters' offices in Southampton Appropriation 
 Buildings, Chancery Lane, as shall not be assigned by o^'""* Masterg" 
 the Lord Chancellor as chambers for Master of the soartfampton 
 Rolls and Vice Chancellors respectively, or shall not be Buildings, 
 required for the Masters, shall be appropriated to any 
 other purposes connected with the Court of Chancery as 
 the Lord Chancellor may from time to time direct, 
 or the same may be let as chambers, and the rent thereof 
 paid to the suitor's fund ; and when all the Masters have 
 resigned, died, or have been released under this act, the 
 offices may be sold by order of the Lord Chancellor, and 
 the proceeds of such sale paid to the suitors' fund, in 
 such manner and to such particular account as the Lord 
 Chancellor shall by any order direct; and it shall be 
 lawful for the Lord Chancellor by any order to direct 
 that the premises so to be sold, and the fee simple and 
 inheritance thereof, shall vest in the purchaser or pur- 
 chasers of the same, his or their heirs and assigns, or as 
 he or they shall direct; and such order shall have the 
 effect of vesting the same accordingly, without any 
 conveyance or other assurance from her Majesty, in 
 whom the same are now vested by virtue of an act 
 passed in the thirty-second year of the reign of king 
 George the Third, chapter forty-two. 
 
 Lll. And whereas by an act passed in the fifth year Power to her 
 of the reign of her present Majesty, session one, chapter Majesty to 
 five, her raaiesty was by section nineteen empowered to ^PPt""* » Vice 
 
 - 11.^^ Z' ^ 1 ..L » 1 ^ £!^ Chancellor as 
 
 appoint, by letters patent under the great seal, two fit successor to 
 
 persons to be additional judges assistant to the Lord Sir G. J. Tur- 
 
 Chancellor in the discharge of the judicial functions of "*""• 
 
 his office, each of such additional judges to be called 
 
 Vice Chancellors; and by section twenty-one it was 
 
 provided, that nothing therein contained should authorize 
 
 the appointment of a successor to the Vice Chancellor 
 
 secondly appointed under the authority of the said act : 
 
 and whereas by an act passed in the session holden in 
 
 the fourteenth and fifteenth years of the reign of her 
 
 present Majesty, chapter four, her Majesty was by section 
 
 one empowered to appoint, by letters patent under the 
 
 great seal, a fit person to be an additional judge assistant 
 
42 
 
 THE MASTER IN CHANCERY ABOLITION ACT. 
 
 Such Vice 
 Chancellor 
 to have same 
 power, &C. 
 as Sir G. J. 
 Turner has. 
 
 Officers and 
 attendants 
 to the Vice 
 Chtncellor. 
 
 to the Lord Chancellor, in discharge of the judicial 
 fiinctions of his office, in the place of the Right Honour- 
 able Sir Jatnes Wigram Knight," who was the Vice 
 Chancellor secondly appointed under the authority of 
 the said act of the fifth year of her Majesty, and who 
 had resigned the office of Vice Chancellor to which he 
 had been so appointed: and whereas the Right Honour- 
 able Sir George James Turner Knight is the Vice Chan^ 
 cellor appointed under the said last-mentioned act: and 
 whereas by section nine of the same act it was provided, 
 that nothing therein contained should authorize the 
 appointment of a successor to the Vice Chancellor 
 appointed under the authority thereof: and whereas by 
 virtue of this act additional duties will devolve upon the 
 judges of the said Court, and it is expedient that any 
 vacancy which may occur in the said office of Vice 
 Chancellor should be supplied: be it therefore enacted, 
 that it shall be lawful for her Majesty, from time to time 
 when and as any vacancy sfa^l occur in the office of 
 Vice Chancellor now held by the said Sir George James 
 Turner, by the death, resignation, or removal from office 
 of the said Sir George James Turner, or his successor 
 for the time being, it shall be lawful for her Majesty, by 
 letters patent under the great seal of the United King- 
 dom, to appoint a fit person, being or having been a 
 barrister of fifteen yeM's standing at the least, to supply 
 such vacancy. ' 
 
 Lin. The Vice Chancellor to be appointed under 
 this act shall have all the same powers and privileges, 
 and the same rank, and shall be subject to the same pro- 
 visions, duties, and observances, as the said Sir George 
 James Turner shall, at or immediately before his death, 
 resignation, or removal from office, have or be subject to 
 under the said act of the fourteenth and fifteenth years 
 of her present Majesty, chapter four, and this act, or 
 any other act or acts then in force, excepting that, as 
 between himself and the other Vice Chancellors or Vice 
 Chancellor for the time being, he shall have rank and 
 precedence next after the Vice Chancellors or Vice 
 Chancellor, if any, who may be senior to him in ap- 
 pointment to office. 
 
 LIV. Such Vice dhanoellor shall have a secretary, 
 uBher, and trainbearer, to be from time to time ap- 
 pointed and removed by him at his pleasure; and the 
 secretaries, registrars, and other officers appointed to 
 
15 & 16 VICT. c. 80. 43 
 
 attend the Lord Chancellor shall attend snch Vice 
 Chancellor when sitting for the Lord Chanoelior, and 
 also when sitting in his separate Court or in chambers, 
 as circumstances shall require, and as the Lord Chan- 
 cellor shall order and direct. 
 
 LV. The salary of such Vice Chancellor, and the Salaries of 
 salaries of his secretary, usher, and trainbearer, shall be ^'"® Chan- 
 of the same amounts, and paid out of the same funds, ],;; officers 
 and in like manner, as the salaries of the said Sir George to be as at 
 James Turner his secretary, usher, and trainbearer, res- P™sent. 
 pectively, shall be payable at or immediately before his 
 death, resignation, or remoVal from office. 
 
 LVI. It shall be lawful for her Majesty, by letters Her Majesty 
 patent under the great seal of the United Kingdom, to may grant 
 grant to any person executing the office of Vice Chan- sfonto^^k:"" 
 cellor in pursuance of this act, on his resignation of or Chancellor 
 his ceasing to execute his office, an annuity of the same 5° appointed, 
 amount, after the same period of service, under the same 
 circumstances, subject to the same conditions, and pay- 
 able out of the same fund, as the annuity authorized to 
 be granted to each of the Vice Chancellors appointed 
 under the said act of the fifth year of her present Ma- 
 jesty, chapter five. 
 
 LVIL It shall be lawful for the Lord Chancellor to Lord Chan- 
 appoint one or more person or persons, removable ™"°r "^ 
 at pleasure, for the purpose of keeping order in the keepers. 
 Court of the Vice Chancellor to be appointed under this 
 act ; and the salary of the person or persons appointed or 
 to be appointed, under this act or under any act or acts 
 now in force, to keep order in the Court of the Vice 
 Chancellor to be appointed under the authority of this 
 act, shall be of such amount, not exceeding the yearly 
 sum of eighty pounds, as the Lord Chancellor may 
 think reasonable ; and such sal^u'y shall be paid to each 
 such person so to be appointed, out of the same funds, 
 and at the same time, and in like manner as the salaries 
 of like persons have heretofore been paid. 
 
 LVIII. Nothing herein contained shall in anywise Rights and 
 prejudice or affisct the title of the present Masters in establishments 
 ordinary of the said Court to the salaries payable to Mast^ew to*" 
 them as such Masters unless and until they shall be continoe until 
 respectively released under this act, or the power of the '^^jj^'®^ '" . 
 Lord Chancellor to order a retiring allowance to any of thj"^"."^ " 
 them or any of their clerks who may be or become 
 afflicted with some permanent infirmity disabling him 
 
44 
 
 THE MASTER IN CHANCERY ABOLITION ACT. 
 
 Nothing to 
 affect the 
 rights, &c. of 
 Accountant 
 General as a 
 Master in 
 ordinary. 
 
 The retiring 
 Lord Chan- 
 cellor may 
 deliver written 
 judgments 
 within six 
 weeks after 
 his resignation. 
 
 Construction 
 of terms. 
 
 from the due execution of bis office, and who shall be 
 desirous of resigning the same ; and every of the present 
 Masters in ordinary of the said Court, until released 
 under this act, shall have the same establishment of 
 clerks, whose salaries and compensations shall be payable 
 out of the same funds as the salaries and compensations 
 of their clerks are now payable; and all the expenses 
 attending the establishment of the Master's offices shall 
 be paid in like manner as such expenses are now paid. 
 
 LIX. Nothing herein contained shall prejudice or 
 affect the rights, duties, or privileges of the Accountant 
 General of the said Court of Chancery as a Master in 
 ordinary, of the said Court, or any salary or other pay- 
 ment payable to the said Accountant Generd as such 
 Master in ordinary, or his right or title to any retiring 
 allowance under any act or acts of Parliament now in 
 force, nor shall the said Accountant General be called 
 upon or required to do or perform any duties or services 
 as such Master in ordinary, other than such as are now 
 usually performed by him. 
 
 La. Whereas it has frequently happened that after 
 cases have been fully heard by the Lord Chancellor in 
 the Court of Chancery and are standing for judgment, 
 the Lord Chancellor has delivered up the great seal 
 without being able, by reason of other urgent public 
 business, to deliver judgment therein, and much incon- 
 venience and expense to the parties has been thereby 
 occasioned : 
 
 For remedy thereof be it enacted. That in every such 
 case it shall be lawful for the person who has so delivered 
 up the great seal, within six weeks after he shall have 
 delivered up the same, to give in to the registrar of the 
 said Court a written 'judgment therein, signed by him; 
 and a decree or order, as the case may require, shall be 
 drawn up in pursuance of such judgment; and every 
 such decree or order shall have the same force and effect 
 as if the judgment in pursuance whereof it is drawn up ■ 
 had been given in open Court the day before he shall 
 have so delivered up the great seal. 
 
 LXI. In the construction of this act the expression 
 "Her Majesty" shall mean the sovereign for the time 
 being; and the expression "Lord Chancellor" shall 
 mean also and include the Lord Chancellor, Lord 
 Keeper and Lords Commissioners for the custody of the 
 great seal of the United Kingdom for the. time being. 
 
15 & 16 VICT. c. 87. 45 
 
 THE SUITORS IN CHANCERY RELIEF 
 ACT. 
 
 15 & 16 Vict. c. 87. 
 
 An Act for the Relief of the Suitors of the High Court of 
 Chaiicery. [1st July 1852.] 
 
 Whereas several of the officers of the Court of Chancery 
 have from time to time received and do now receive for 
 their own use various fees and emoluments for business 
 done and transacted by them in or by virtue of their 
 respective offices : and whereas it is expedient that such 
 officers should not henceforth retain such fees and emo- 
 luments for their own use, but that they should receive 
 adequate salaries for the performance of their respective 
 duties : and whereas it is expedient that for the relief of 
 the suitors of the said Court further provision should be 
 made with respect to the fees now payable by them, 
 and that increased facilities should be afforded for the 
 despatch of the business of the said Court, and that cer- 
 tain offices connected with the said Court should be 
 abolished : be it therefore enacted by the Queen's most 
 excellent Majesty, by and with the advice and consent 
 of the Lords spiritual and temporal, and Commons, in 
 this present Parliament assembled, and by the authority 
 of the same, as follows : 
 
 L From and after the 28th day of October one thou- No officer 
 
 hereafter to 
 
46 
 
 THE SUITORS IN CHANCERY RELIKF ACT. 
 
 receive fees 
 for his own 
 use, but all 
 officers to 
 be paid by 
 
 Officers to 
 continue to 
 receive fees 
 until Lord 
 Cliancellor 
 shall otherwise 
 direct, and 
 pay them into 
 the suitors' fee 
 iiind. 
 
 Officers not to 
 take gratuities. 
 
 sand eight hundred and fifty-two no officer of the Court 
 of Chancery or of any of the judges thereof shall be 
 entitled to receive and retain for his own use any fee or 
 reward whatsoever, and all officers of the Court of Chan- 
 cery and of the judges thereof now entitled to receive 
 and retain any fees or other payments for their own use, 
 which by virtue of this act they will cease so to receive 
 after the 28th day of October one thousand eight hun- 
 dred and fifty-two, and whose salaries are not fixed by 
 thi^ iacl, shall, while they continue to hold their respec- 
 tive offices, receive in lieu of all fees or other payments 
 whatsoever now received 1^ or paid or payable to them 
 for their own use such salary as, having regard to the 
 emoluments heretofore received by them, and to the 
 nature and tenure of such offices, the Commissioners of 
 her Majesty's Treasury shall think just, and upon the 
 present holders of such offices respectively ceasing to 
 hold the same the Commissioners of her Majesty's Trea- 
 sury shall fix the salaries to be thereafter received in 
 respect thereof with reference to the nature and duties 
 of such offices respectively. 
 
 II. It shall be lawful for all officers of the Court of 
 Chancery and of the judges thereof heretofore entitled 
 to receive any fees or emolumenis for their own use, and 
 for their successors in their respective offices, and their 
 several and respective clerks or agents, to continue to 
 receive and take all and every the fees and emolumeats 
 which have been accustomed to be paid to them, until 
 the Lord Chancellor shall by any order or orders other- 
 wise direct, and all such fees and emoluments as shall 
 accrue and be received by such officers respectively, from 
 and after the 28th day of October one thousand eight 
 hundred and fifty-two, shall be accounted for and paid 
 by them respectively once in every month into the Bank 
 of England, in the name of the accountant general of the 
 Court of Chancery, to he placed to the account there, 
 intituled "The Suitors' Fee Fund Account," the amount 
 so received and paid by such officers respectively to be 
 verified by the affidavit of the accounting party. 
 
 III. From and after the 28th day of October one 
 thousand eight hundred and fifty-two, if any officer of 
 the Court of Chancery or of any of the judges thereof 
 sh^li, for anything done or pretended to be done relating 
 
15 & 16 VICT. c. 87. 47 
 
 to his ofRce, situation, or employment, or under colour of 
 doing anything relating to bis office, situation, or employ- 
 ment, wilfuUy take, demand, receive, or accept, or ap- 
 point or allow any person whatsoever to take for him or 
 on his account, or for or on account of any person by 
 him named, any fee, gift, gratuity, or emolument, or any- 
 thing of value, other than his salary and what is allowed 
 or directed to be taken by him under this act or any 
 order to be made under this act, the person so offending, 
 when duly convicted, shall forfeit and pay the sum of 
 five hundred pounds, and shall be removed from any 
 office, situation, or employment he may hold in the said 
 Court, and shall be rendered and he is hereby rendered 
 incapable for ever thereafter of holding any office, situa- 
 tion or employment in the said Court, or otherwise: 
 serving her Majesty, her heirs or successors. 
 
 IV. Any such ofiender may be prosecuted either by How offenders 
 information at the suit of her Majesty's Attorney Gene- '» he prose- 
 ral, or by criminal information before her Majesty's ""'* ' 
 Court of Queen's Bench, or by indictment. 
 
 V. From and after the twenty-eighth day of October Allowances 
 one thousand eight hundred and fifty-two the several ^"'^ spying , 
 allowances for copying provided for and directed to be powerTo L^ord 
 paid to the clerk of reports, the clerks of entries, the Chancellor tp 
 assistant clerk of affidavits, the clerks of the examiners, '?*''* regula- 
 and the copying or writing clerks of the Masters in copies' 
 ordinary of the said Court, by any act or acts of ParUa- 
 
 ment now in force, shall cea.se; and it shall be lawful 
 for the Lord Chancellor, by any order or orders to be 
 from time to time made % him, to make such regur 
 lations as to the making and delivering copies of the 
 pleadings and other proceedings in the said Court, and 
 of the documents relating thereto, and the manner in 
 which such copies should be paid for, and the amount of 
 charge for the same, and by whom the amount to be so 
 charged should be received, as may from time to time 
 seem expedient, (a) 
 
 VI. It shall be lawful for the Lord Chancellor, by any Power to Lord 
 order or orders to be from time to time made by him, to Chancellor, by 
 
 (a) See as to fiirnishing copies, the General Orders of the 25th 
 of October 1852, 1st to 5th inclusive, and also the Order of Court 
 of the 10th of November 1852. 
 
48 
 
 THE SUITOKS IN CHANCERY RELIKF ACT. 
 
 order, to vary, 
 reduce, and 
 abolish fees, 
 and to provide 
 for their^ollec- 
 tion by stamps. 
 
 After such 
 order, fees 
 not to be 
 received in 
 money, but 
 by means of 
 stamps. 
 
 Commission- 
 ers of inland 
 revenue to 
 give the neces- 
 sary directions 
 as to the 
 stamps, to 
 keep separate 
 accounts, and 
 pay monies 
 into suitors' 
 fee fund. 
 
 vary, reduce, or abolish all or any of the fees payable in 
 relation to proceedings in the Court of Chancery, and 
 to substitute one or more fee or fees in lieu thereof, and 
 to direct that all or any of such fees shall, from a day to 
 be named in such order or orders and thenceforth, be 
 collected by means of stamps to be provided and used in 
 manner hereinafter mentioned, (a) 
 
 VII. From and after the day named in such order or 
 orders, unless and until the Lord Chancellor shall other- 
 wise direct, none of the fees mentioned in such orders 
 respectively shall be received in money, but by a stamp 
 denoting the amount of the fee which otherwise would 
 be payable ; and where any fee shall be payable in res- 
 pect of any document such stamp shally at the expense 
 of the party liable to pay the fee, and in such manner 
 and under such regulations as shall by any order or 
 orders be directed, be stamped or affixed on the vellum, 
 parchment, or paper on which the proceeding in respect 
 whereof such fee is payable is written, printed, or in- 
 grossed, or which may be otherwise used in reference to 
 such proceeding, (b) 
 
 VIII. The Commissioners of Inland Revenue shall from 
 time to time, upon the receipt of any order of the Lord 
 Chancellor in that behalf, give the necessary directions 
 for carrying the same into effect, and shall provide every- 
 thing that is requisite for that purpose, and shall do or 
 cause to be done everything that is necessary for the 
 receipt and collection of the money to be paid for such 
 stamps ; and the said commissioners shall cause separate 
 and distinct accounts to be kept of all sums of money 
 received or collected by them under the provisions of any 
 such order or orders, and of all costs, charges, and ex- 
 penses incurred by them or by their direction in carrying 
 the same into effect, and it shall be lawful for the said 
 commissioners to pay and to deduct and retain out of 
 such monies all such costs, charges, and expenses, and 
 also to deduct all sums of money repaid on allowances 
 
 (o) See the 6th Order of the 25th of October 1852, regulating 
 the fees now payable, and also the Schedule to those Orders. 
 
 (i) See as to the payment by means of stamps, the 6th and 7th 
 Orders of the 25th of October 1852 ; and also the Order of Court 
 of the 3rd of December 1852 ; and the further Order of Court of 
 the 4th of December 1852. 
 
15 & 16 VICT. c. 87. 49 
 
 for spoiled stamps, as hereinafter provided for ; and after 
 such deduction they sliall from time to time, and in such 
 manner as the Lord Chancellor shall by any order direct, 
 pay the monies so to be received and collected into the 
 Bank of England to the credit of the Accountant General 
 of the Court of Chancery, to be placed to the account 
 there, intituled " The Suitors' Fee Fund Account." 
 
 IX. It shall be lawful for the Lord Chancellor to Provision for 
 direct any of the oflBcers of the Court of Chancery sale of stamps. 
 whose duties may be diminished in consequence of the 
 substitution of stamps for money payments, or otherwise, 
 under this act, to act untler the directions of the Com- 
 missioners of Inland Revenue in the sale and distribution 
 of all or any of the stamps to be used under this act : 
 Provided always, that in case it appear to the Lord 
 Chancellor, having reference to the duties to be per- 
 formed by such oflBcers or any of them, that it is not 
 convenient that they should act as aforesaid in the sale 
 and distribution of stamps, it shall be lawful for the 
 Commissioners of Inland Revenue to appoint persons 
 for such sale and distribution, and to allow to such per- 
 sons so appointed by them such discount or poundage 
 as they may think fit. 
 
 X. It shall be lawful for the Commissioners of Inland Commission- 
 Revenue from time to time to make such regulations as ^""^ «' inland 
 they shall think fit for the allowance of such stamps, makeregi!^ 
 issued under the provisions of this act, as may have been lations as to 
 spoiled or rendered useless or unfit for the purpose in- allowance for 
 tended, or for which the owner may have no immediate ^°' * ^'""P'- 
 use, or which through mistake or inadvertence may have 
 been improperly or unnecessarily used, and such allow- 
 ance shall be made either by giving other stamps in lieu 
 of the stamps so allowed, or by repaying the amount or 
 value to the owner or holder thereof, after deducting 
 the discount or poundage (if any) allowed on the sale of 
 stamps of the like kind. 
 
 XL The provisions contained in the several acts for Provisions of 
 the time being in force relating to stamps. under the care former acts 
 or management of the Commissioners of Inland Revenue 5^a^'p"^to'be 
 shall (so far as the same are applicable and consistent applicable to 
 with the provisions of this act), in all cases not hereby stamps under 
 expressly provided for, be of full force and effect with *'='«=«• 
 respect to the stamps to be provided under or by virtue 
 
 £ 
 
50 
 
 THE SUITORS IN CHANCERY RELIEF ACT. 
 
 No document 
 to be received 
 or used unless 
 stamped. 
 
 Officers guilty 
 of fraud or 
 wilful neglect 
 in relation to 
 stamps liable 
 to be dismissed. 
 
 of this act, and to the vellum, parchment, or paper on or 
 to which the same stamps shall be impressed or affixed, 
 and be applied and put in execution for collecting and 
 securing the sums of money denoted thereby, and for 
 preventing, detecting, and punishing all frauds, forgeries, 
 and other offences relating thereto, as fully and effectually 
 to all intents and purposes as if such provisions had been 
 herein repeated and specially enacted with reference to 
 the said last-mentioned stamps and sums of money 
 respectively. 
 
 XII. No document which by any order or orders to 
 be respectively made as aforesaid shall be required to 
 haVe a stamp impressed thereon or affixed thereto, shall 
 be received or filed, or be used in relation to any pro- 
 ceeding in the Court of Chancery, or be of any validity 
 for any purpose whatsoever, unless or until the same 
 shall have a stamp impressed thereon or affixed thereto, 
 in the manner directed by such order: provided always, 
 that if at any time it shall appear that any such docu- 
 ment which ought to have had a stamp impressed thereon 
 or affixed thereto has, through mistake or inadvertence, 
 been received or filed, or used without having such 
 stamp impressed thereon or afiixed thereto, it shall be 
 lawful for the Lord Chancellor, if he think fit, to order 
 that such stamp shall be impressed thereon or affixed 
 thereto, and thereupon, when a stamp shall have been 
 impressed on such document or affixed thereto, in com- 
 pliance with any such order, such document, and every 
 proceeding in reference thereto, shall be as valid and 
 effectual as if such stamp had been impressed thereon or 
 affixed thereto in the first instance. 
 
 XIII. If any officer of the Court of Chancery or other 
 person shall do or commit or connive at any fraudulent 
 act or practice in relation to any stamp to be used undej: 
 the provisions of this act, or to any fee or sum of money 
 to be collected or which ought to be collected by means 
 of any such stamp, or if any such officer or person shall 
 be guilty of any wilful act, neglect, or omission in relation 
 to any such stamp or fee as aforesaid, whereby any fee 
 or sum of money which ought to be collected for the 
 benefit of the said fee fund shall be lost to the said fee 
 fund, or the payment thereof evaded, every such ofiicer 
 or person so offending shall be dismissed from his office 
 
15 & 16 VICT. c. 87. 51 
 
 or employment, if the Lord Chancellor shall think fit 
 so to order. 
 
 XIV. It shall be lawful for the Lord Chancellor, Power to 
 intrusted by virtue of the Queen's sign manual with the "^"^jf^ ^^^^ '" 
 care and commitment of the custody of the persons and j,, substitute 
 estates of persons found idiot, lunatic, or of unsound a percentage in 
 mind, by any order or orders, to be -from time to time ^'™ 'liereof. 
 made by the Lord C/hancellor, intrusted as aforesaid, to 
 abolish all or any of the fees payable in relation to 
 proceedings in lunacy, and to direct that such of the fees 
 as shall not be abolished^ if any, shall be collected by 
 means of stamps in the manner hereinbefore provided 
 with respect to fees payable in relation to proceedings in 
 the Court of Chancery, and also to direct that in lieu of 
 all or any of such fees a per centage or ad valorem 
 payment shall be paid on the clear annual incomes of 
 the -persons found idiot, lunatic, or of unsound mind, 
 and on the amount of the taxed costs incurred in pro- 
 ceedings in lunacy, or on such annual incomes only, or 
 on the amount of such taxed costs only, the amount of 
 such annual incomes as aforesaid, and the amount of the 
 per centage or ad valorem payment to be paid thereon 
 and on such taxed costs to be from time to time ascer- 
 tained and fixed in such manner, by such means, and 
 under such regulations as the Lord Chancellor, intrusted 
 as aforesaid, shall by any order or orders direct, and the 
 amount of such per centage or ad valorem payment to 
 be paid into the Bank of England in the name of the 
 Accountant General of the Court of Chancery, to be 
 placed to the account there, intituled " The Suitors' Fee 
 Fund Account," at such times and by such persons as 
 the Lord Chancellor, intrusted as aforesaid, shall by any 
 order or orders direct: Provided always, that the amount 
 to be raised by such per centage or ad valorem payment 
 shall not exceed the amount which may from time to 
 time be required to provide for the payment of the 
 salaries, expenses, and sums of money payable under the 
 act of the session holden in the fifth and sixth years of 
 the reign of her Majesty, chapter eighty-four, or any 
 other acts or act of Parliament for the time being in 
 force with respect to lunatics: and that a statement of 
 the amount of such per centage or ad valorem payment 
 shall from time to time, within fourteen days next after 
 the same shall have been settled, be laid on the table of 
 
 E 2 
 
52 THE SUITORS IN CHANCERY RELIEF ACT. 
 
 the House of Commons, if Parliament shall be then 
 
 assembled, or if Parliament shall not be then assembled, 
 
 then within fourteen days after the meeting of Parliament 
 
 then next following. 
 
 Certain statu- XV. All the jurisdiction, and all the powers and 
 
 tory jurisdic- authorities of a judicial nature, given by the act of the 
 
 Lor/chan-" session holden in *he first year of the reign of King 
 
 cellor, in- William the Fourth, chapter sixty-five, by " The Trustee 
 
 trusted with ^ct, 1850," and by any other acts or act of Parliament 
 
 tk;7t°o be"*' ""^ '" force, to the Lord Chancellor, intrusted by virtue 
 
 exercised by of the Queen's sign manual with the care and commit- 
 
 the persons ment of the custody of the persons and estates of persons 
 
 bdnVso'in- found idiot, lunatic, or of unsound mind, shall belong to 
 
 trusted. and may be exercised by all or any of the persons or 
 
 person for the time being intrusted as aforesaid. 
 Salaries of XVI. And whercas under certain acts of Parlia- 
 
 ^\^ *^^h"' nient now in force the salaries of the Master of the 
 Judges* of the Rolls, and of the Vice Chancellor appointed under the 
 Court of Chan- act of the session holden in the fifty-third year of the 
 eery to be paid rgign of King George the Third, chapter twenty-four; 
 dated fund." ' ^^e payable out of and charged upon the consolidated 
 fund of the United Kingdom, but the salary of the 
 Lord Chancellor (except that portion thereof payable to 
 him as speaker of the House of Lords), and the salaries 
 of the Lords Justices of the Court of Appeal in Chanceryj 
 and of the other Vice Chancellors, are payable out of the 
 interest and dividends arising from the government or 
 Parliamentary securities placed in the name of the 
 Accountant General of the Court of Chancery which have 
 been purchased from time to time with monies taken out 
 of the common and general cash belonging to the suitors 
 of the Court of Chancery, and lying dead and unemployed 
 in the Bank of England: And whereas it is expedient 
 that the salaries of all the judges of the Court of Chan- 
 cery should be paid out of the consolidated fund of the 
 United Kingdom, instead of out of the interest of the 
 securities purchased with the cash of the suitors as afore- 
 said : Be it therefore enacted. That from and after the 
 tenth day of October one thousand eight hundred and 
 fifty-two there shall be issued and paid and payable out 
 of and charged and chargeable upon the consolidated 
 fund of the United Kingdom, after paying or reserving 
 sufficient to pay all such sums of money as by any acts 
 of Parliament now in force have been directed to be paid 
 
15 & 16 VICT. c. 87. 53 
 
 thereout, but with precedence to all other payments 
 which shall hereafter be charged thereupon, the annual 
 salaries hereinafter mentioned; that is to say, to the 
 Lord Chancellor such yearly sum as, with the salary or 
 sum payable to him as speaker of the House of Lords, to 
 be certified as directed by the act of the session holden 
 in the fourteenth and fifteenth years of the reign of her 
 present Majesty, chapter eighty-three, shall be sufficient 
 to make up the net yearly sum of ten thousand pounds ; 
 to each of the Lords Justices of the Court of Appeal in 
 Chancery, six thousand pounds; to the Vice Chancellor 
 for the time being appointed under the act passed in the 
 fifth year of the reign of her present Majesty, session 
 one, chapter five, five thousand pounds; and to the Vice 
 Chancellor appointed under the act of the session holden 
 in the fourteenth and fifteenth years of the reign of her 
 present Majesty, chapter four, five thousand pounds; all 
 which salaries shall be in lieu of all salaries theretofore 
 payable to such judges respectively, out of any fund 
 whatsoever, under any acts or act of Parliament now in 
 force, and shall be payable and paid quarterly, free and 
 clear fi^om all taxes and deductions whatsoever, on the 
 four usual days of payment in the year; that is to say, the 
 fifth day of January, the fifth day of April, the fifth day 
 of July, and the tenth day of October in every year, by 
 equal portions, the first payment to be made on the fifth 
 day of January one thousand eight hundred and fifty-three, 
 and a proportionate part of such salaries respectively to 
 be paid for the quarter current at the death or resignation 
 of any of the persons in the receipt of such salaries. 
 
 XVIL So much of the aet of the first session holden Repeal of 
 
 5. 
 
 in the fifth year of the reign of Her present Majesty, ^*: °' ° 
 chapter five, as enacts, that the Accountant General of 
 the High Court of Chancery shall, on or before the first 
 day of September in every year, pay into the bank, to an 
 account, intitutled " An Account of Interest arising from 
 Securities carried to an Account of Money placed out for 
 the Benefit and better Security of the Suitors of the 
 High Court of Chancery," the sum of one hundred and 
 fifty pounds, shall be repealed. 
 
 XVHL From and after the twenty-eighth day of Brokerage 
 October one thousand eight hundred arid fifty-two, the J^^^'^f;^""'^ 
 brokerage which shall or may from time ^o time be accountant 
 received by the present Accountant GeneVal of the general to 
 
54 
 
 THE SITITORS IN CHANCERY RELIEF ACT. 
 
 be paid by 
 bim into 
 suitors' fee 
 fund. 
 
 Salary to be 
 paid to present 
 accountant 
 general in lieu 
 of brokerage. 
 
 Nothing in 
 act to affect 
 the rights as 
 a Master in 
 ordinary. 
 
 Power to 
 Treasury to 
 make regula- 
 tions as to 
 brokerage. 
 
 Salary of all 
 future accoun- 
 tants general 
 to be 3,000/. 
 per annum. 
 
 Certain officers 
 of Lord Chan- 
 cellor removed, 
 and their 
 offices abo- 
 lished. 
 
 Court of Chancery shall be paid by him into the Bank 
 of England, to be there placed to his credit as such 
 Accountant General to the account, intituled " The 
 Suitors' Fee Fund Account," at such times and under 
 such regulations as the Lord Chancellor shall from time 
 to time by any order direct, (a) 
 
 XIX. From and after the twenty-eighth day of October 
 one thousand eight hundred and fifty-two, there shall be 
 paid to the present Accountant General of the Court of 
 Chancery, in ,lieu of the brokerage heretofore received 
 by. him for his own benefit, and in addition to the salary 
 and allowance for books and stationery now received by 
 him as Accountant General, the net yearly salary of two 
 thousand seven hundred pounds, 
 
 XX. Nothing herein contained shall affect the rights, 
 privileges, or duties to which the present Accountant 
 General is entitled or which he is liable to perform as 
 one of the Masters in ordinary of the Court of Chancery. 
 
 XXI. It shall be lawful for the commissioners of her 
 Majesty's Treasury to make such regulations with respect 
 to the broker to be employed in transacting the business 
 relating to the funds of the Court of Chancery, and the 
 amount of commission to be received by such broker, or 
 the payment of such broker by salary or otherwise, as 
 they shall from time to time think fit. 
 
 XXII. From and after the resignation or death of the 
 present Accountant General the salary provided for the 
 Accountant General of the said Court by the act of the 
 session holden in the twelfth year of the reign of King 
 George the Second, chapter twenty-four, and the act of 
 the session holden in the ninth year of the reign of King 
 George the Third, chapter nineteen, shall cease, and 
 there shall be paid to the Accountant General of the 
 said Court for the time being the net yearly salary of 
 three thousand pounds. 
 
 XXIIL From and after the twenty-eighth day of 
 October one thousand eight hundred and fifty-two, the 
 following ofBcers shall be removed, and their respective 
 offices shall cease and determine; that is to say, the 
 keeper or clerk of Her Majesty's hanaper, deputy clerk 
 of the hanaper, the secretary of decrees and injunctions. 
 
 (a) See as to the time of payment of the brokerage, the 8th 
 Order of the 25th of October 1852. 
 
15 & 16 VICT. c. 87. 55 
 
 one of the two gentlemen of the chamber attending the 
 great seal, the chaflF wax, the deputy chaff wax, the 
 sealer, and the deputy sealer, and the duties theretofore 
 performed by the secretary of decrees and injunctions 
 shall thenceforth be performed by the clerks of records 
 and writs, and the respective duties of the oflBces of the 
 keeper or clerk of Her Majesty's hanaper and of chaff 
 wax and sealer shall thenceforth be performed by the 
 clerk of the Crown in Chancery, and the pursebearer to 
 the Lord Chancellor respectively, as directed by the act 
 of the session holden in the third and fourth years of the 
 reign of King William tfie Fourth, chapter eighty-four, 
 upon such offices becoming vacant by the death, resigna- 
 tion, or removal of the then respective holders thereof, 
 and such pursebearer shall be thenceforth entitled to 
 such yearly sums for the expenses of the offices of chaff 
 wax and sealer as are by the said last-mentioned act 
 directed to be paid to him. 
 
 XXIV. From and after the twenty-eighth day of Certain officers 
 October one thousand eight hundred and fifty-two, there o^''"' Lord 
 shall be paid to the officers of the Lord Chancellor next ^e''paM by"" *" 
 hereinafter named, in lieu of all fees heretofore received salary in lieu 
 by them respectively for their own use, the following of fees, 
 yearly salaries; that is to say, to the principal secretary 
 of the Lord Chancellor one thousand two hundred 
 pounds, to the gentlemen of the chamber attending the 
 great seal five hundred pounds, to the pursebearer to the 
 Lord Chancellor five hundred pounds, and to the train- 
 bearer to the Lord Chancellor two hundred pounds; and 
 it shall be lawful for the Lord Chancellor to appoint a 
 clerk to be employed in the office of such principal 
 secretary, which clerk shall receive by way of salary such 
 annual sum, not exceeding two hundred pounds, as the 
 Lord Chancellor shall from time to time direct. 
 
 XXV. From and after the tenth day of October one The secretary 
 thousand eight hundred and fifty-two, the persons or ofpresenta. 
 person holding the offices of secretary of presentations "on» a""! 'he 
 and secretary of commissions of the peace shall account commissrons 
 for all the fees and emoluments payable to and received of the peace 
 by them or him by virtue of such offices, and shall pay ^nd^T^fees" 
 such fees and emoluments once in every six months into into consoli! 
 the receipt of her Majesty's exchequer, and the same, dated fund, 
 when so paid, shall be carried to and made part of the 
 consolidated fund of the United Kingdom, the amount 
 
56 
 
 THE SUITORS IN CHANCERY RELIEF ACT. 
 
 The persons 
 or person 
 holding such 
 last mentioned 
 offices to re- 
 ceive the 
 yearly sum of 
 800/. 
 
 Certain offices 
 abolished. 
 
 Duties of sub- 
 pcena office 
 transferred to 
 clerk of records 
 and writs. 
 
 SO received and paid to be verified by the affidavit of the 
 accounting party. 
 
 XXVI. From and after the tenth day of October one 
 thousand eight hundred and fifty-two, there shall be 
 paid to the persons or person for the time being holding 
 such last-mentioned offices the yearly sum of eight hun- 
 dred pounds, to be divided between such persons, in case 
 such offices should be held by difiierent persons, in such 
 proportions as the Lord Chancellor shall direct, and such 
 yearly sum shall be issued and paid and payable out of 
 and be charged and chargeable upon the consolidated 
 fund of the United Kingdom (after paying or reserving 
 sufficient to pay all such sums of money as by any acts 
 of Parliament now in force have been directed to be paid 
 thereout, but with precedence to all other payments 
 which shall hereafter be charged thereupon), and shall 
 be payable and paid quarterly, free and clear from all 
 taxes and deductions whatsoever, on the four usual days 
 of payment in the year; that is to say, the fifth day of 
 January, the fifth day of April, the fifth day of July, and 
 tlje tenth day of October in every year, by equal por- 
 tions, the first payment to be made on the fifth day of 
 January one thousand eight hundred and fifty-three, and 
 a proportionate part thereof to be paid for the quarter 
 current at the death or resignation of the persons or 
 person in the receipt of such yearly sura. 
 
 XXVII. From and after the twenty-eighth day of 
 October one thousand eight hundred and fifty-two, the 
 offices of the patentee of the subpoena office, the deputy 
 of the patentee of the subpoena office, the clerk of affida- 
 vits, the assistant clerk of affidavits, the second assistant 
 clerk of affidavits, the clerk of reports, the doorkeeper of 
 the Court of Chancery, and the crier of the Court of 
 Chancery, and the office of usher of the Court of Chan- 
 cery now held by Thomas Francis Le Dieu, shall be 
 abolished. 
 
 XXVIII. From and after the twenty-eighth day of 
 October one thousand eight hundred and fifty-two, the 
 execution of the duties of the subpoena office shall be 
 transferred to the clerks of records and writs, and such 
 duties shall be performed by them in such manner as 
 they are directed to perform the same by the act of the 
 session holden in the eighth and ninth years of the reign 
 of her present Majesty, chapter one liundred and five,, 
 
15 & 16 VICT. c. 87. 5^ 
 
 after the death, resignation, or removal from his office of 
 the present patentee of the subpoena office. 
 
 XXIX. From and after the twenty-eighth day of Duties of affi- 
 October one thousand eight hundred and fifty-two, the davit office to 
 duties of the affidavit office of the Court of Chancery ^y derkTof 
 shall be performed by the clerks of records and writs, records and 
 but affidavits or affirmations may be sworn, affirmed, or ""''• 
 attested upon honour and declarations made before the 
 
 clerk of inrolments for the time being, as occasion may 
 require, for the better despatch of business ; and the 
 duties of the clerk of reports shall be performed by such 
 person or persons as the *Lord Chancellor shall appoint 
 for that purpose, and such person or persons shall be 
 entitled under this act to such salary or salaries as the 
 Commissioners of her Majesty's Treasury shall by any 
 order direct, provided that the whole amount of such 
 salaries shall not in any one year exceed the sum of four 
 hundred pounds. 
 
 XXX. Every order made in matters in lunacy by the Orders in 
 Lord Chancellor, or the person or persons intrusted as '""acy, when 
 aforesaid, when drawn up by the secretary of lunatics, sigiied,"to be 
 and signed by the Lord Chancellor, or the persons or entered by the 
 person intrusted as aforesaid, shall be entered by such "g'strann 
 secretary, who shall be henceforth called the registrar in o'ffice^c'opte of 
 lunacy, in a proper book to be provided by him for that sucb orders 
 purpose ; and he shall furnish to every person requiring '« be furnished 
 the same office copies of such orders, or of such part hhn/'anTthe^ 
 thereof as may be required, which copies shall be signed accountant 
 by such registrar in lunacy, and he shall provide a seal genial to act 
 for his office, and shall cause to be sealed or stamped there- orders." 
 with all such office copies as aforesaid ; and every such 
 
 office copy, purporting to be so signed, and sealed or 
 stamped with such seal, shall at all times, and on behalf 
 of all persons, and whether for the purposes of this act 
 or otherwise, be admitted as evidence of the order of 
 which it purports to be a copy, without any further proof 
 thereof. 
 
 XXXL Where any such order in lunacy relates to Orders in ■ 
 the Davment, transfer, or carrying over of any cash, 'unaoyin 
 
 , r .7 ' . . ' V ..u £c .. ^ certain cases 
 
 Stocks, funds, annuities, securities, or other effects, to or („ ^e acted 
 into the name of the Accountant General of the (]Iourt upon in the 
 of Chancery, to the credit of the matter of any person same manner 
 or persons being idiot, lunatic, or of unsound mind, or ^p 'by the" 
 to the payment, transfer, or carrying over, or other registrar of 
 
58 
 
 THE SUITORS IN CHANCERY RET.IEF ACT. 
 
 the Court of 
 Chancery. 
 
 Certificates 
 and reports of 
 Masters in 
 lunacy to be 
 only filed in 
 the office of 
 registrar in 
 lunacy. 
 
 Forging the 
 signature of 
 registrar of 
 lunacy, or of 
 his seal, to be 
 felony 
 
 Master of 
 reports and 
 entries to 
 countersign 
 cheques, &c. 
 
 disposal by the said Accountant General of any cash, 
 stocks, funds, annuities, securities, or other effects which 
 may be standing in his name to the credit of the matter 
 of any person or persons being .idiot, lunatic, or of 
 unsound mind, the said Accountant General, and all 
 other persons, including the governor and company of 
 the Bank of England, and all other companies and 
 societies, shall act upon such order, signed by the Lord 
 Chancellor, or the persons or person intrusted as afore- 
 said, after the same shall have been so entered as afore- 
 said, in the same manner as if such order had been also 
 drawn up by the registrar of the Court of Chancery, 
 and passed and entered according to the mode heretofore 
 in force ; and the registrar in lunacy shall certify under 
 his hand to the said Accountant General what stocks or 
 funds he is by virtue of any such order to transfer, and to 
 whom, in the same manner as the registrars of the Court 
 of Chancery have been heretofore accustomed to do. 
 
 XXXII. It shall not be necessary hereafter to file any 
 certificate or report of the Masters in Lunacy in the 
 report office of the Court of Chancery, but the said 
 Accountant General, and all other persons including as 
 aforesaid, shall act upon all certificates and reports of 
 the Masters in Lunacy, filed in the office of the registrar 
 in lunacy, in the same manner as if such certificates and 
 reports respectively had been also filed in the report 
 office of the Court of Chancery according to the mode 
 heretofore in force. 
 
 XXXIII. If any person shall forge the signature of 
 the registrar in lunacy, or shall forge or counterfeit the 
 seal of his office, or knowingly concur in using any such 
 forged or counterfeit signature or seal, or shall tender in 
 evidence any document with a false or counterfeit signa- 
 ture of such registrar, or with a false or counterfeit seal, 
 knowing the same signature or seal to be false or coun- 
 terfeit, every such person shall be guilty of felony, and 
 shall be liable to the same punishment as any offender 
 under an act of the session holden in the eighth and 
 ninth years of the reign of her present Majesty, chapter 
 one hundred and thirteen. 
 
 XXXIV. And whereas all notes and cheques for the 
 payment of money drawn by the Accountant General of 
 the Court of Chancery upon the Bank of England have 
 been heretofore countersigned by the registrars of the 
 
1.') & 16 VICT. c. 87. 59 
 
 said Court, in pursuance of the provisions of the act of 
 the session holden in the twelfth year of the reign of 
 King Geoi^e the First, chapter thirty-two : and whereas 
 all copies and extracts taken from the registrar's books 
 deposited in the office of the Master of the reports and 
 entries have been heretofore signed b^' the said registrars: 
 and whereas the performance of such duties by the, said 
 registrars is attended with inconvenience, and interrupts 
 them in the execution of their other duties; and it is 
 expedient that the Master of reports and entries should 
 be empowered to sign such documents as well as the 
 said registrars : be it therefore enacted, that the duties 
 relating to the countersigning the notes or cheques drawn 
 by the Accountant General of the said Court upon the 
 Bank of England, and to the signing the copies and 
 extracts made in or issuing from the office of the Master 
 of reports and entries, heretofore performed by the re- 
 gistrars of the said Court, so far as it shall be found 
 necessary or expedient to continue such duties, shall be 
 performed by the Master of reports and entries, or the 
 registrars of the said Court, in such manner and under 
 such rules and regulations as the Lord Chancellor shall 
 from time to time by any order direct. 
 
 XXXV. The Master of reports and entries shall also To perform 
 perform all such other duties as the Lord Chancellor other duties 
 shall from time to time by any order direct. raltor'mf''*"" 
 
 XXXVI. And whereas under an order of the said dirert. 
 Court recited in the said last-mentioned act, and thereby Account of 
 confirmed, an account of all monies, securities, and monies of the 
 effects belonging to the suitors of the said Court was Co'urTke*^ fat 
 directed to be kept at the report office ; and whereas, the report 
 since the passing of such act, three accounts of such office to be 
 monies, securities, and effects have been respectively, and™ffi"e'3*''' 
 kept, that is to say, one at the report office by the clerks of clerks of 
 of accounts, another in the office of the Accountant accounts abo- 
 General of the said Court, and a third at the Bank of ^'^'''''*- 
 England : and whereas it is considered that the account 
 
 so kept at the report office is no longer necessary, and 
 may be discontinued: be it therefore enacted, that from 
 and after the first day of October one thousand eight 
 hundred and fifty-two, the account so kept at the report 
 office as aforesaid shall be discontinued, and the offices 
 of clerks of accounts shall be abolished, and so much of 
 the said last-mentioned order as requires, that when 
 
60 
 
 THE SUITORS IN CHANCERY RELIEF ACT. 
 
 Lord Chancel- 
 lor to make 
 general orders 
 for carrying 
 act into effect. 
 
 Orders under 
 thi& act may be 
 varied. 
 
 Duties and 
 salaries of 
 clerks in 
 accountant 
 general's 
 office. 
 
 any money belonging to the suitors of the said Court 
 should be directed to be paid by order of the said Court 
 the note drawn for shch mone}' upon cheque paper, as 
 thereby directed, should be carried to the report office, 
 and an entry made thereof there, and intratur written 
 thereon, shall be repealed; and from and after the first 
 day of October one thousand eight hundred and fifty- 
 two, every note or cheque for the payment of money, 
 under any order of the said court, signed by the Ac- 
 countant General of the said Court and countersigned 
 by the Master of reports and entries, or one of the 
 registrars of the said Court, as hereinbefore required, 
 shall be sufficient authority to the Bank of England to 
 pay the money mentioned in such note or cheque to the 
 person named therein, or to such person as he or she, by 
 indorsement, shall order to receive the same. 
 
 XXXVII. It shall be lawful for the Lord Chancellor 
 from titiie to time to make and issue such General Orders 
 as he shall think fit, as well in relation to any matter 
 connected with the offices by this act abolished, and not 
 hereby otherwise provided for, as for carrying the pro- 
 visions of this act into execution, and also all such other 
 rules and orders as he shall think fit for altering and 
 regulating the business of the several offices of the said 
 Court. 
 
 XXXVIII. Any order or orders for the time being 
 made under this act may from time to time be annulled, 
 altered, or varied by the like authority by which any 
 such order or orders shall have been made, and new 
 orders may from time to time be made for any of the 
 purposes of this act by the authority by which orders are 
 hereby authorized to be made. 
 
 XXXIX. It shall be lawful for the Lord Chancellor, 
 if he shall see fit, to authorize and direct the first, second, 
 and third clerks in each division of the office of the said 
 Accountant General, from and after the twenty-eighth day 
 of October one thousand eight hundred and fifty-two, to 
 continue to perform the acts or duties hitherto performed 
 by such clerks, in addition to the duties prescribed by act 
 of parliament, as heretofore, in exclusion of any other 
 person, and to direct them to be paid such yearly salaries 
 as the Lord Chancellor, with the consent of the commis- 
 sioners of her Majesty's treasury, shall think just; and it 
 shall be lawful for the Lord Chancellor to fix the fees to 
 
15 & 16 VICT, c, 87. 61 
 
 be paid for such acts as aforesaid, which shall be accounted 
 for in like manner as the other fees now received in the 
 oflBce of the said Accountant General, (a) 
 
 XL. Instead of the salaries directed to be paid by the Amount of 
 act of the session holdcn in the fifth and sixth years of salaries to 
 the reign of her present Majesty, chapter one hundred taking" 
 and three, to the clerks of the taxing Masters of the masters. 
 Court of Chancery, every such clerk shall, from and 
 after the third day of November one thousand eight 
 hundred and fifty-two, be entitled to a salary of three 
 hundred and fifty pounds per annum. 
 
 XLI. The deposit now payable on setting down Deposits on 
 appeals and exceptions for hearing shall continue to be appeals to 
 payable, and such deposits shall be paid to and received baiST'and ° 
 by the senior registrar of the Court of Chancery for the placed to 
 time being, who shall once in every three months pay all "*''^ appeal 
 sums so received by him into the Bank of England to the account." 
 credit of the Accountant General of the said Court (the 
 amount so received and paid by such registrar to be verified 
 by affidavit), and the several sums when so paid in shall 
 be from time to time placed to an account to be intituled 
 " The Appeal Deposit Account," and the monies which 
 shall from time to time be standing to such account shall 
 be paid and applied as the Court of Chancery shall from 
 time to time in that behalf order or direct. 
 
 XLII. And whereas by the act of the session holden Persons may 
 in the eighth and ninth years of the reign of her present sell by auction, 
 Majesty, chapter fifteen, a certain duty of excise is im- "f the^ourtof 
 posed upon every licence to be taken out by every person chancery, 
 exercising or carrying on the trade or business of an without being 
 auctioneer in any part of the United Kingdom ; and it ^^^^^ ^y'^ 
 is thereby enacted, that every person who exercises or e Se 9 Vict, 
 carries on the business of an auctioneer, or who acts in •;• 15. 
 such capacity at anj- sale or roup, and every person who 
 sells or offers for sale any goods or chattels, lands, tene- 
 ments, or hereditaments, or any interest therein, at any 
 sale or roup where auy person or persons become the 
 purchaser of the same by competition, and being the 
 highest bidder, or by any other mode of sale by compe- 
 tition, shall, except as thereinafter mentioned, be deemed 
 to carry on the trade or business of an auctioneer, and 
 
 (a) See as to the clerks in the Accountant General's Office, the 
 9th Order of the 25th of October 1852. 
 
62 
 
 THE SUITORS IN CHANCERY RELIEF ACT. 
 
 Indemnity in 
 respect of 
 former sales. 
 
 Officers whose 
 emolunieiits are 
 diminished in 
 consequence of 
 this act may 
 make claim 
 for compensa- 
 tion to com- 
 missioners of 
 treasury. 
 
 shall be required to take out such licence as thereby 
 directed ; and that every person who carries on the trade 
 or business of an auctioneer as aforesaid without taking 
 out such licence shall, except as thereinafter mentioned, 
 forfeit one hundred pounds: and whereas doubts have 
 arisen whether any sale or sales by way of auction can 
 now be made under any order or decree of the Court of 
 Chancery before any officer of the said Court, or the 
 persons by such officer in that behalf appointed, without 
 rendering such officer or other person liable to take out 
 such licence as by the said last-mentioned act is directed 
 to be taken out by all persons acting as auctioneers ; and 
 it is expedient that such doubts should be removed: Be 
 it therefore enacted, that it shall be lawful for any Master 
 in ordinary of the Court of Chancery, and for the chief 
 clerk of any such Master, and for every other person 
 appointed in that behalf by any such Master, to sell any 
 goods or chattels, lands, tenements, or hereditaments, or 
 any interests therein, under any decree or order of the 
 said Court, by auction or by any other mode of sale by 
 competition, without any licence as an auctioneer, and 
 without being liable to the duty imposed by the said 
 last-mentioned act, or any other act or acts now in 
 force. 
 
 XLIII. The Masters in ordinary of the Court of 
 Chancery and their chief clerks shall be discharged and 
 freed from all suits, prosecutions, liabilities, pains, and 
 penalties to which' they or any or either of them are or 
 is or might be liable for or on account of any sale by or 
 by way of auction or competition heretofore made or 
 conducted by or before them or any or either of them. 
 
 XHV. It shall be lawful for the keeper or clerk of 
 her Majesty's hanaper, deputy clerk of the hanaper, the ■ 
 patentee of the subpoena office, and for every officer of 
 the Court of Chancery, and for every officer or person 
 employed in the offices of the Masters in lunacy, or the 
 registrar in lunacy, whose salary or emoluments shall be 
 taken away or diminished by the operation of this act, 
 or by the rules and orders to be made thereunder, to 
 make a claim for compensation to the Commissioners of 
 her Majesty's Treasury for the time being, and such 
 commissioners are hereby required, within the space of 
 six calendar months after any such claim shall have been 
 made, by examination upon oath or otherwise (which 
 
15 & 16 VICT. c. 87. 63 
 
 oath they and each of them are and is hereby authorized 
 to administer), to inquire whether any and if any what 
 compensation ought to be made to such clerk of the 
 hanaperi deputy clerk of the hanaper, patentee of the 
 subpoena office, and to any officer or person claiming 
 such compensation, the said commissioners having regard 
 to the conditions on which the appointment of any such 
 officer or person was made, or to any notice which at the 
 time of such appointment may have been given to such 
 officer or person that his office was to be holden subject 
 to any provision by Parliament for the abolition or regu- 
 lation thereof, but with full power for the said commis- 
 'sioners to investigate and determine whether from the 
 nature of the office or mode of accession thereto any 
 such conditions or notice could have been properly made 
 or given, and also having regard to the holding of any 
 office, place, or situation in the said Court by such officer 
 or person ; and in all cases in which it shall appear to 
 the said commissioners that compensation ought to be 
 granted, it shall be lawful for the said commissioners, by 
 warrant under their hands, to order and direct that such 
 annual compensation shall be made to the persons so 
 claiming such compensation as aforesaid, or any of them, 
 as to the said commissioners in their discretion shall 
 seem just and reasonable; and all such compensations 
 shall be paid and payable out of such funds and in such 
 manner as is hereinafter in that behalf directed: Pro- 
 vided always, that an account of all such compensations 
 shall, within fourteen days next after the same shall be 
 so granted, be laid upon the table of the House of 
 Commons, if Parliament shall be then assembled, or if 
 Parliament shall not be then assembled then within 
 fourteen days after the meeting of Parliament then next 
 following. 
 
 XLV. Every person now holding any freehold office or Payments to 
 office for life or during good behaviour which is abolished ^^ ">*'!« '° 
 by this act, and in respect of which any annual or other office"are °^^ 
 fixed salary is by virtue of any act of parliament or abolished. 
 otherwise by law payable, shall be entitled to receive 
 such salary during the residue of the term of his natural 
 life, in the same manner and out of the same fund as if 
 this act had not been passed ; and every person now 
 holding any freehold office or office for life or during 
 good behaviour, which is abolished by this act, and in 
 respect of which any fees of office are by law or custom 
 
64 
 
 THE SUITORS IN CHANCERY RELIEF ACT. 
 
 Lord Chan- 
 cellor may 
 order pensions 
 for retiring 
 officers. 
 
 5 & 6 Vict. 
 ^=. 103. 
 
 4 & 5 Wm. 4, 
 c. 24. 
 
 payable, shall be entitled to receive from and after the 
 passing of this act, during his natural life, an annuity 
 equal to the average annual amount of such fees of office 
 during the three years next preceding the passing of this 
 act; and the amount of such annuity shall be determined 
 by the Lord^ Commissioners of her Majesty's Treasury, 
 in the same manner, and shall be paid out of such funds 
 and in such manner, as is by this act directed with res- 
 pect to the compensations hereby provided to be given 
 to officers whose salary or emoluments shall be taken 
 away or diminished by the operation of this act, or by 
 the rules and orders to be thereunder made. 
 
 XLVI. From and after the passing of this act it shall 
 be lawful for the Lord Chancellor, by any order made on 
 a petition presented to him for that purpose, to order (if 
 he shall think fit) to be paid to any person now or here- 
 after holding any office or appointment in the Court of 
 Chancery, other than and except any clerk of enrolmentsj 
 clerk of records and writs, or taxing Master, to whom, 
 subsequently to the passing of the act, the Lord Chan- 
 cellor, under the act passed in the session of Parliament 
 holden in the fifth and sixth years of her Majesty's reign, 
 intituled An Act for abolishing certain Offices of the High 
 Court of Chancery, shall have ordered a retiring allow- 
 ance to be paid, and to any officer or person employed in 
 the offices of the Masters in lunacy, or the registrar in 
 lunacy, who shall be afflicted with some permanent 
 infirmity, disabling him from the due execution of his 
 office, or shall have continued in any office or offices 
 for twenty years and shall be desirous of resigning the 
 same, a superannuation allowance under this act, and 
 thereupon such officer or person shall be entitled to receive 
 such superannuation allowance as the Commissioners 
 of her Majesty's Treasury shall think proper to direct; 
 and in ascertaining and awarding the amount of such 
 superannuation allowance, the said commissioners shall 
 take into consideration the whole period during which 
 any such officer or person shall have been permanently 
 employed in any office or situation in the said Courts or 
 offices, and shall proceed according to the principles laid 
 down by an act passed in the session holden in the 
 fourth and fifth years of King William the Fourth, 
 chapter twenty-four, " to alter, amend, and consolidate 
 the laws for regulating the pensions, compensations, and 
 allowances to be made to persons in respect of their 
 
15 & 16 VICT. c. 87. 65 
 
 having held civil offices in his Majesty's service:" Pro- 
 vided always, that the Lord (^Ihancellor shall in every 
 such order state this cause for making the same, and shall 
 cause a copy of such order to be laid on the table of the 
 House of Commons within fourteen days next after the 
 makingf of the same if Parliament shall be then assembled, 
 and if Parliament shall not be then sitting then within 
 foiu'teen days next after the assembling thereof. 
 
 XLVII. From and after the passing of this act, it shall Lord Chan- 
 be lawful for the Lord Chancellor, by order, to remove "ellorniay 
 any officer of the Court of Chancery, or any officer or g^l^^peifsions 
 person employed in the q^ices of the Masters in lunacy, to disabled 
 or the Registrar in lunacy, who shall be afflicted with any oncers, 
 infirmity which shall disable him from the due execution 
 of his office, and who shall refuse to resign, or become 
 incapable of resigning the same, and upon such removal 
 to order to be paid to any such officer or person so 
 removed an annuity or retiring allowance, not ex- 
 ceeding two third parts of the yearly sum or salary to 
 which he shall be entitled at the time of his removal, 
 such annuity or retiring aljowance to be paid out of the 
 funds, and in the manner in which retiring allowances 
 under this act are hereinafter directed to be paid. 
 
 XLVII I. Except as herein otherwise provided, all Salaries to 
 salaries under this act shall grow due from day to day, f ''*"' ^"^ *^^°'° 
 but shall be payable under an order of the Lord Chan- but t'obe^' 
 cellor on the third day of February, the third day of May, payable quar- 
 the third day of August, and the third day of November '*^'y °"' °f 
 in every year, or on such other days as the Lord Chan- f^^j" ^^ 
 cellor shall from time to time by any order direct, and 
 shall be paid to the parties entitled thereto, or their 
 respective executors or administrators, out of the fund 
 standing in the name of the Accountant General of the 
 Court of Chancery, to the account, intituled " The 
 Suitors' Fee Fund Account;" but subject and without 
 prejudice to the payment of all salaries and other sums 
 of money by any former act or acts now in force directed 
 or authorized to be paid thereout. 
 
 XLIX. The compensation to be made under this act Compensation 
 to the persons holding the offices of the keeper or clerk to chaff wax, 
 of her Majesty's hanaper, deputy clerk of the hanaper, *"• '° •'^ paid 
 chaff, wax, deputy chaff wax, sealer, and deputy sealer, solidated"und. 
 shall be issued and payable out of and charged and 
 chargeable upon the consolidated fund of the United 
 
 F 
 
(56 THE SUITORS IN CHANCERY RELIEF ACT. 
 
 Kingdom, after paying or reserving sufficient to pay all 
 such sums of money as by any acts of Parliament now in 
 force have been directed to be paid thereout, but with 
 precedence to all other payments vyhich shall hereafter 
 be charged thereupon, and such compensations shall be 
 paid quarterly, free and clear from all taxes and deduc- 
 tions whatsoever, on the four usual quarterly days of pay- 
 ment in the year ; tfiat is to say, the fifth day of January, 
 the fifth day of April, the fifth day pf July, and the 
 tenth day of October iri every year by equal portions, 
 the first payment to be computed from the twenty eighth 
 day of October one thousand eight hundred and fifty- 
 two, to be made on such of the same days of payment 
 as shall happen next after the Commissioners. of her 
 Majesty's Treasury shall have issued their warrant for 
 any such compensation, and a proportionate part thereof 
 to be paid. for the quarter current at the death of any 
 of the persons in the receipt of such compensation. 
 All other com- J'- Except as herein otherwise provided, all conipen- 
 pensations and sations and superannuation or retiring allowances under 
 
 tiotfor"retrriii ^'"'^ ^'^^ ^^^^' S^""^^ ^"6 f""*"" day to day, but shall be 
 allowances to payable on the third day of February, the third day of 
 grow due from May, the third day of August, and the third day of 
 but tobe\ - November in every year, or on such other days as the 
 able quarterly Lord Chancellor shall from time to time by any order 
 out of suitors' direct, aind shall be paid to the parties entitle'd theretOj 
 ^°"^' or their respective executors or administrators, out of 
 
 the interest and dividends of the government or parlia- 
 mentary securities now or hereafter to be placed in the 
 name of the Accountant General of the Court of Chancer^ 
 to the two accounts, intituled "Account of Monies placed 
 out for the Benefit and better Security of the Suitors of 
 the High Court of Chancery," and " Account of Securities 
 purchased with surplus Interest arising from Securities 
 carried to an Account of Monies placed out for the Benefit 
 and better Security of the Suitors of the High Court' of 
 Chancery," or either of them, by the governor and com- 
 pany of the Bank of England, by virtue of any order or 
 orders of the Lord Chancellor, to be made from time to 
 time for that purpose, without any draff from the Ac- 
 countant General, but subject and without prejudice to 
 the payment of all salaries and other sums of money by 
 any former act or acts now in force directed or authorized 
 to be paid thfereout. 
 
15 & 16 vrcT. c. 87. 67 
 
 LI. All salaries payable under any act or acts now Alteration of 
 in force out of the fund standing in the name of the quarterly days 
 Accountant General of the (^ourt of Chancery to the ceSTalaries 
 account intituled "The Suitors' Fee Fund Account," by cut of suitors' 
 equal quarterly payments on the twenty-fifth day of Refund. 
 February, the twenty-fifth day of May, the twenty-fifth 
 day of August, and the twenty-fifth day of November in 
 every year, shall from and after the passing of this act 
 be respectively payable and paid by equal quarterly 
 payments on the third day of February, the third day of 
 May, thie third day of ^August, and the third day of 
 November in every year, and a proportionate part of the 
 first of such last-mentioned quarterly payments, to be 
 computed from the last day of payment of such salaries,' 
 shall be made on the first of such quarterly days of pay- 
 ment hereby appointed which shall happen next after 
 the passing of this act, "and upon the resignation, death, 
 or removal from oflSce of any person entitled to receive 
 any such salary, such person, or his executors or admi>- 
 nistrators, as the case may be, shall be paid such propor- 
 tionate part of the salary aforesaid as shall have accrued 
 since the last quarterly payment thereof to the time of 
 such resignation, death, or removal from office. 
 
 LII. It shall be lawful for the Lord Chancellor by any Provisions 
 order or orders to be from time to time made for that for expenses 
 purpose, to order payment, at such times, and in such °f \y^ Cour" 
 manner, and out of stich of the funds hereby charged as 
 he shall think fit, of all such sums as shall- appear to him 
 to be reasonable and proper to be paid for providing 
 suitable Courts, rooms, and buildings in which the busi- 
 ness of the Court of Chancery may from time to time 
 be carried on, and for keeping order in the several 
 Courts, and for the care and cleaning of all such Courts, 
 rooms, and buildings, and for the rent, taxes, rates, in- 
 surance from fire, and other outgoings charged upon or 
 payable for or in respect thereof, and for the enlarge- 
 ment, alteration, or improvement, repairs, furnishing, 
 and fitting up of the same, and for the books and 
 stationery which may be required for the business of the 
 said Court and the offices thereof, and for the making, 
 writing, printing, counting, and examining official docu- 
 ments and records of the said Court, and office and 
 other copies of such documents and records, and for 
 coals and candles, and other necessary articles for the 
 
 f2 
 
68 
 
 THE SUITORS IN CHANCERY RELIEF ACT. 
 
 Surplus of 
 suitors' fund 
 to be from 
 time to time 
 carried over to 
 and to become 
 part of suitors' 
 fee fund. 
 
 said Courts atjd offices, and for all other necessary ex- 
 penses relating thereto, and for the expenses of the 
 pnrsebearer and the running porter to the great seal, 
 and the messenger to the Lord (.-bancellor during his 
 absence from town, and for the petty expenses now 
 borne by thp porter's fund ; and it shall be lawful for 
 the Master of the Rolls to appoint a clerk or clerks to 
 be employed in the office of the secretary at the Rolls, 
 which clerk or clerks shall receive by way of salary such 
 annual Fum or suras as the Master of the Rolls phall 
 from time to time fix and determine ; provided always, 
 that such sum or sums shall not in the whole in any one 
 year exceed the sum of three hundred pounds. 
 
 LIU. And whereas many of the fees payable to the 
 Suitors' Fee Fund have been lately abolished, and several 
 of them have been reduced, and under the provisions of 
 this act there will be a further reduction of the fees 
 payable to the said fund : and whereas, in order to effect 
 such reduction, and at the same time to keep up the; 
 said fund to an amount sufficient to satisfy the charges 
 thereon, as well under. this act as under any former act, 
 it is expedient to make such addition to the said fund as- 
 hereinafter provided: be it therefore enacted, that so 
 much of any act or acts now in force as directs that the 
 surplus interest and annual produce which hath arisen 
 and shall arise from the monies placed out on the several 
 accounts, intituled "Account of Monies placed out for 
 the Benefit and better Security of the Suitors of the 
 High Court of Chancery," and " Account of Securities 
 purchased with surplus Interest arising from Securities 
 carried to an Account of Monies placed out for the 
 Benefit and better Security of the Suitors of the High 
 Court of Chancery," beyond what shall be sufficient to 
 answer the purposes of the several acts relating to such 
 securities, and also the interest produced from the secu- 
 rities purchased with such surplus interest and annual 
 produce, shall from time to time be placed out in the 
 purchase of government or parliamentary securities in 
 the name of the Accountant General of the said. Court, 
 and placed to the credit of the said account, intituled 
 " Account of Securities purchased with surplus Interest 
 arising from Securities carried to an Account of Monies 
 placed out for the Benefit and better Security of the 
 
15 & 16 TicT. c. 87. 69 
 
 Suftors- of the High Court of Chancerj,"' shall be re- 
 pealed, and the surplus interest and annual produce 
 hereafter to arise from the monies placed out on the two 
 several last-mentioned accounts, beyond what shall be 
 sufficient to answer the purposes of this act, and the 
 several other acts relating to such securities, shall be 
 carried over ,by the said Accountant General and be 
 placed to the said account, intituled "The- Suitors' Fee 
 Fund Account," and shall thereupon become part of 
 the fund standing to such account. 
 
 LIV. If at the end of any year there shall be a surplus Provision in 
 standing to the credit of the said account, intituled "The case of surplus 
 Suitors' Fee Fund Account," after payment of the several "u'lSee"'"'^ 
 salaries and sums of money charged thereon by this act fund, 
 or any former act, it shall be lawful for the Lord Chan- 
 cellor by any order to direct that such surplus, or such 
 part thereof as to the Lord (]!hancellor shall seem fit, 
 shall be invested in the purchase of parliamentary or 
 government securities in the name of the said Accountant 
 General, to be placed to the account, intituled " Account 
 of Monies placed out to provide for the Officers of the 
 High Court of Chancery," and it shall be lawful for the 
 Lord Chancellor in like manner to direct the investment 
 of the dividends or interest to accrue from time to time 
 on the securities now or at any time hereafter under this 
 act or any former act to be placed to the said last-men- 
 tioned account, or so much of such dividends and inte- 
 rest as he shall think fit, in the purchase of parliamentary 
 or government securities in the name of the said Ac- 
 countant General, to be by him placed to the credit of 
 the said last-mentioned account, and as often as there 
 shall be a deficiency in the said account, intituled " The 
 Suitors' Fee Fund Account," at any of the times ap- 
 pointed for payment of any of the salaries or sums of 
 money charged thereon, it shall be lawful for the Lord 
 Chancellor to direct the said Accountant General to 
 make good such deficiency by carrying over and placing 
 to the said account, intituled "The Suitors' Fee Fund 
 Account," such sum as the Lord Chancellor may con- 
 sider sufficient for that purpose, out of the interest and 
 dividends to arise from the government or parliamentary 
 securities standing to the said account, intituled " Ac- 
 count of Monies placed out to provide for the Officers of 
 
70 THE SUITOnS IN CHANCERY RELIEF ACT. 
 
 the High Court of Chancery," or by a sale of so much of 
 the said securities as may be necessary for that purpose. 
 Interpretation LY. In the construction of this act, unless such mean- 
 of term " Lord jng bg repugnant to or inconsistent with the context, the 
 expression "Lord Chancellor" shall mean and include 
 the Lord High Chancellor of Great Britain, and the 
 Lord Keeper or Lords Commissioners of the great seal 
 of the United Kingdom for the time being. 
 
SIR GEORGE TURNER'S ACT. 
 
 13 & 14 Vict. cap. 35. 
 
 An Act to diminish the Delay and Expense of Proceedings 
 in the High Court of Chancery in England. 
 
 [15th July 1850.] 
 
 Whereas proceedings in the High Court of Chancery in 
 England are attended with great delay and expense, 
 which it is expedient to diminish: be it therefore enacted 
 by the Queen's most excellent Majesty, by and with 
 the advice and consent of the Lords spiritual and tem- 
 poral, and commons, in this present Parliament assembled, 
 and by the authority of the same, that it shall be lawful 
 for persons interested or claiming to be interested in any Powers to per- 
 questi'on cognizable in the said Court as to the con- fons interested 
 struction of any act of Parliament, will, deed, or other '" "J"?^''™? 
 
 ■' . . . , , cognizable m 
 
 instrument in wnting, or any article, clause, matter, or Court of Chan- 
 thing therein contained, or as to the title or evidence of eery to state 
 title to any real or personal estate contracted to be sold fP^^Jf' *^*?^? 
 
 , -i , , . ^ . , , . , tor the opinion 
 
 or otherwise dealt with, or as to the parties to or the of the Court. 
 form of any deed or instrument for carrying any such 
 contract into effect, or as to any other matter falling 
 within the original jurisdiction of the said Court as a 
 Court of equity, or made subject to the jurisdiction or 
 authority of the said Court by any statute not being one 
 of the statutes relating to bankrupts, and including among 
 such persons all lunatics, married women, and infants, in 
 the manner and under the restrictions hereinafter con- 
 tained, to concur in stating such question in a form of a 
 special case for the opinion of the said Court, and it shall 
 also be lawful for all executors, administrators, and trus- 
 tees to concur in such case. 
 
72 
 
 SIR GEORGE TURNERS ACT. 
 
 How lunatic 
 may concur. 
 
 How married 
 women may 
 
 How infant 
 may concur. 
 
 How special 
 guardian to be 
 appointed for a 
 lunatic not 
 found such by 
 commission, 
 and for infant. 
 
 Order to ap- 
 point special 
 guardian of an 
 infant may be 
 discharged by 
 Court if made 
 without notice. 
 
 II. And be it enacted, that the coratnittee of the estate 
 of any hmatic interested or claiming to be interested in 
 any such question as aforesaid may, after having been 
 authorized in that behalf by the Lord Chancellor, concur 
 in such case in his own name and in the name and on 
 the behalf of the lunatic. 
 
 III. And be it enacted, that a husband interested or 
 claiming to be interested in right of his wife in any such 
 question as aforesaid may concur in such case in his own 
 name and in the name of his wife where the wife has no 
 claim to any interest distinct from her husband, and that 
 a married woman having or claiming any interest in any 
 such question as aforesaid distinct from her husband may 
 in her own right concur in such case, provided that her 
 husband also concurs therein. 
 
 IV. And be it enacted, that the guardian of any infant 
 interested or claiming to be interested in any such ques- 
 tion as aforesaid may concur in such case in the name 
 and on the behalf of the infant, unless such guardian has 
 an interest in such question adverse to the interest of the 
 infant therein. 
 
 V. And be it enacted, that it shall be lawful for the 
 said Court, by order to be made in the matter of any 
 lunatic not found such by inquisition, or, in the matter 
 of any infant, upon the application of any person on the 
 behalf of such lunatic, or upon the application of such 
 infant, by motion or petition, to appoint any person 
 shown by affidavit to be a fit person, and to have no in- 
 terest adverse to the interest of the lunatic or infant, to 
 be the special guardian of such lunatic or infant for the 
 purpose of concurring in such case in the name and on 
 behalf of the lunatic or infant, and any such person so 
 appointed may lawfully so concur : provided always, that 
 it shall be lawful for the said Court to require notice of 
 
 -such application to be given to such person, if any, as 
 the Court shall think fit. 
 
 VI. And be it enacted, that in any case in which any 
 such order as aforesaid shall have been made by the said 
 Court in the matter of any infant without notice to the 
 guardian of the infant, it shall be lawful for the said 
 Court, if it shall think fit so to do, to discharge such 
 order, upon the application of such guardian, by motion 
 or petition ; and the said Court, if it shall think fit, may 
 thereupon appoint some other fit person to be the special^ 
 
13 & 14 VICT. c. 35. 73 
 
 guardian of such infant for the purpose of such special 
 case, and may also give such directions as maj' be neces- 
 sary for substituting in such special case either the name 
 of the guardian so applying, or of the special guardian 
 so appointed in lieu of the name of the special guardian 
 so displaced : provided always, that the discharge of any 
 order appointing a special guardian shall hot invalidate 
 anything which shall in the meantime have been done 
 by such special guardian, unless the Court shall, upon 
 notice to all parties, specially so direct. 
 
 VII. And be it enacted, that every such special case How such 
 shall be entitled as a cause between some or one of the special cases to 
 parties interested or claiming to be interested as plaintiffs entitled. 
 
 or plaintiff, and the others or other of them as defendants 
 or defendant ; and that in the title to such cases lunatics 
 and infants shall be described as such, and their com- 
 mittees, guardians, or special guardians named; and 
 that where in any such case a married woman is named 
 as a plaintiff and her husband as a defendant thereto, a 
 next friend of such married woman shall be named in 
 the title to such case. 
 
 VIII. And be it enacted, that every such special case Form of special 
 shall concisely state such facts and documents as may be ""se. 
 necessary to enable the Court to decide the question 
 
 raised thereby ; and that upon the hearing of such case 
 the Court and the parties shall be at liberty to refer to 
 the whole contents of such documents; and the Court 
 shall be at liberty to draw from the facts and documents 
 stated in any such special case any inference which the 
 Court might have drawn therefrom if proved in a cause. 
 
 IX. And be it enacted, that every such special case gpepjai ^^^^ ^^ 
 to which an infant or lunatic is a party by his guardian state how guar- 
 or special guardian shall also state how such guardian dian oonsti- 
 or special guardian was constituted; and that where any co'ncu'rrence"^ 
 married woman having or claiming any interest distinct of married 
 from her husband is a party to such case, it shall be "omeii. 
 stated therein that she concurs in such case in her own 
 
 right. 
 
 X. And be it enacted, that every such special case Special cases 
 shall be signed by counsel for all parties, and shall be '<> be signed by 
 filed in the same manner as bills are filed, and that the fi°"^^a|;/'"' 
 defendants may appear thereto in the same manner as pearkncesto'be 
 defendants appear to bills ; and that no defendant shall entered by 
 
 / defendants. 
 
74 
 
 SIR GEOEGE TURNER'S ACT. 
 
 After a special 
 case filed, 
 parties to be 
 bound by state- 
 ments after 
 defendants 
 have appeared, 
 except married 
 women, infants, 
 and lunatics, 
 who arc not to 
 be bound till 
 leave ^iren by 
 Court to set 
 it down.. 
 
 How case to be 
 set down for 
 bearing. 
 
 When a mar- 
 ried woman, 
 infant, or luna- 
 tic is a party, 
 application to 
 be made to 
 the Court for 
 leave to set the 
 case down. 
 
 be required to take an office copy of a special case, but 
 an office copy thereof shall be taken by the plaintiff. 
 
 XI. And be it enacted, that after a special case shall 
 have been filed, and the defendants shall have appeared 
 thereto, all the parties to such special case shall be subject 
 to the jurisdiction of the Court in the same manner as 
 if the plaintiff in the special case had filed a bill against 
 the parties named as defendants thereto, and such de- 
 fendants had appeared to such bill ; and upon the special 
 case being filed, and appearances entered thereto as 
 aforesaid, all parties to such special case, other than 
 married women, infants, and lunatics, shall, for the 
 purposes of such special case, be bound by the state- 
 ments therein; and that married women, infants, and 
 lunatics made parties to a special case shall, for the 
 purposes of s^uch special case, be bound by the state- 
 ments therein, when, and not before, leave shall have 
 been given by the Court to set down such special case 
 in manner hereinafter provided. 
 
 XII. And be it enacted, that so soon as all the de- 
 fendants shall have appeared to the- special case the same 
 may, subject to the provisions hereinafter contained, be 
 set down for hearing, and subpeenas to hear judgment 
 issued and served according to the practice of the said 
 Court. 
 
 XIII. And be it enacted, that when any married 
 woman, infant, or lunatic is party to a special case, 
 application may be made to the Court by motion for 
 leave to set down the same, of which motion notice 
 shall be given to every party to such case in whom, as 
 executor, administrator, or trustee, any property in ques- 
 tion therein is or is alleged to be vested in trust for or 
 for the benefit of such married woman, infant, or lunatic, 
 and also, if such application be not made by or on behalf 
 of such married woman, infant, or lunatic, to such married 
 woman and her husband, or to such infant, or to such 
 lunatic and his committee, if any, as the case may be ; 
 and that upon the hearing of such motion the said Court 
 may give leave to set down such case, if it shall be of 
 opinion that it is proper that the question raised therein 
 shall be determined thereon, and shall be satisfied by 
 affidavit or other sufficient evidence that the statements 
 contained therein, so far as the same affect the interest 
 
13 & 14 VICT. c. 35. 
 
 lO 
 
 of such married woman, infant, or lunatic, are true, but 
 otherwise may refuse such application : provided always, 
 that in case the said Court, upon the nearing of such 
 application, shall be of opinion that it is proper that the 
 question raised in such case shall be determined thereon, 
 but shall not be satisfied that the statements contained 
 therein, so far as they affect the interest of such married 
 woman, infant, or lunatic, are true, it shall be lawful for 
 the said Court to refer it to one of the Masters thereof 
 to make such inquiries as to the Court shall seem proper, 
 and upon further application being made, by motion as 
 aforesaid, upon the said Master's report, to give or refuse 
 leave to set down such case as to the said Court shall 
 seem fit. 
 
 XIV. And be it enacted, that it shall be lawful for 
 the said Court, upqn the hearing of any such special 
 case as aforesaid, to determine the questions raised 
 therein or any of them, and by decree to declare its 
 opinion thereon, and, so far as the case shall admit of 
 the same, upon the right involved therein, without pro- 
 ceeding to administer any relief consequent upon such 
 declaration ; and that every such declaration of the said 
 Court contained in any such decree shall have the same 
 force and eflfect as such declaration would have had, and 
 shall be binding to the same extent as such declaration 
 would have been, if contained in a decree made in a 
 suit between the same parties instituted by bill : pro- 
 vided always, that it shall be lawful for the said Court, 
 if it shall see fit so to do, before proceeding to make such 
 decree as aforesaid, to send any case or cases for the 
 opinion of any of her Majesty's Courts of common law, 
 reserving the consideration of all further directions and 
 of the costs, and to make such decree as aforesaid upon 
 such further directions ; provided also, that if upon the 
 hearing of such special case as aforesaid the Court shall 
 be of opinion that the questions raised thereby or any of 
 them cannot properly be decided upon such case, the 
 said Court may refuse to decide the same. 
 
 XV. And be it enacted, that every executor, admi- 
 nistrator, trustee, or other person making any payment 
 or doing any act in conformity with the declaration con- 
 tained in any decree made upon a special case shall in 
 all respects be as fully and effectually protected and 
 indemnified by such declaration as if such payment had 
 
 Upon hearing, 
 Court to deter- 
 mine question, 
 and make 
 declaration. 
 
 Proviso that a 
 case may be 
 sent to common 
 law Court. 
 
 Proviso that 
 Court may 
 refuse to 
 decide. 
 
 Protection to 
 be afforded to 
 trustees by 
 declaration. 
 
76 
 
 SIR GEORGE TURNERS ACT. 
 
 The Court 
 may suspend 
 ■tbc ai-tin^ upon 
 .declavation. 
 
 Special case to 
 be a lis pendens, 
 and may be 
 registered. 
 
 Mode of identi- 
 fying docu- 
 ments, and 
 Court may 
 order produc- 
 tion. 
 
 Court on appli- 
 cation of 
 executors or 
 ' administrators, 
 may by order 
 of course 
 
 been made or act done under or in pursuance of the 
 express order of the said Court made iu a suit between 
 the same parties instituted by bill, save only as to any 
 rights or claims of any person in respect of matters not 
 determined by such declaration. 
 
 XVI. And be it enacted, that where any person shall 
 be desirous to have a special case reheard, or to appeal 
 from the decision thereon, it shall be lawful for the said 
 C^^, upon application for that purpose, either at the 
 time of the decree upon such special case being made or 
 at any time afterwards, and upon such conditions, if 
 any, as the Court shall think fit, to order that the decla- 
 ration contained in such decree shall not be acted upon 
 for such time as the said Court shall think just. 
 
 XVIL And be it enacted, that the filing of a special 
 case, and the entering of appearances thereto by the 
 persons named as defendants therein, shall be taken to 
 be a lis pendens, and may be registered under the provi- 
 sions of an act made and passed in the second year of 
 the reign of her present Majesty, intituled An Act for 
 the better Protection of Purchasers against Judgments, 
 Crown Debts, Lis pendens, and Fiats in Bankruptcy, in 
 like manner as any other lis pendens in a Court of 
 equity may now be so registered, and, unless and until 
 so registered, shall not bind a purchaser or mortgagee 
 without express notice thereof. 
 
 XVIII. And be it enacted, that any documents re- 
 ferred to in a special case, and any copies thereof or 
 extracts therefrom, identified by the signature of the 
 solicitors for all parties or of the London agents of such 
 solicitors, may be produced and read at the hearing of 
 such case, without further proof; and that it shall be 
 lawful for the said Court, at any time after the filing of 
 the special case, and the entering of appearances thereto 
 by the persons named as defendants therein, to order 
 any document which may be admitted thereby to be in 
 the possession of any party to such case to be deposited 
 and produced in such manner and for such purposes as 
 the Court shall think fit. 
 
 XIX. And whereas it is expedient to provide means 
 for enabling executors or administrators of deceased per- 
 sons to ascertain whether there are any outstanding debts 
 or liabilities affecting the personal estates of sudi per- 
 sons, without the delay and expense of suits to administer 
 
13 & 14 VICT. c. 35. ^ 77 
 
 such estates: be it therefore enacted, that it shall be direct it to be 
 lawful for the said (lourt, upon the application of the referred to a 
 executors or administrators of any deceased person, by an*accointof ' 
 order to be made upon motion or petition of course, and debts and 
 to be in the form or to the effect set forth in the sche- liabilities. • 
 dule hereto, with such variations as circumstances may 
 require, to refer it to one of the Masters of the said 
 Court to take an account of the debts an,d liabilities 
 affecting the personal estate of such deceased person, and 
 to report thereon : provided always, that no such order 
 shall be made until the ejjpiration of one year next after 
 the death of such deceased person, or pending any pro- 
 ceedings to administer the estate of such person, and that 
 in case at any time after the making of such order any 
 decree or order for administering the estate of such de- 
 ceased person shall be made, it shall be lawful for the 
 said Court by such decree or order to stay or suspend 
 the proceedings under such order of course on such terms 
 and conditions, if any, as to the said Court shall seem 
 just. 
 
 XX. And be it enacted, that it shall be lawful for any Master's report' 
 person who may have come in before the Master under ""^ J® °^' 
 any such order, and claimed to be a creditor upon the motion to the 
 estate of the deceased person, or to have any demand Court, of 
 upon such estate by reason of any liability, and ^vhose wl"^!) notice 
 debt or claim may not have been wholly allowed by the ^ ^"^"' 
 said Master, to apply to the said Court by motion, of 
 
 which notice shall be given within fourteen days after 
 the filing of the Master's report, to have such claim 
 allowed by the Court, either wholly or partially ; and it 
 shall be lawful for the said executors or administrators, 
 and for any creditor of the deceased person who may 
 be authorized by special leave of the said Court so to do, 
 to apply to the said Court by motion, of which notice 
 shall be given within the time aforesaid, to have any 
 debt or claim allowed by the said Master disallowed bj' 
 the Court, either wholly or partially ;; and at the expira- 
 tion of fourteen days after the filing of the said report 
 the same shall, except as to any debt or claim as to 
 which any such notice as aforesaid may have been given, 
 be absolute, as if the same had been confirmed by order 
 of the Court. 
 
 XXI. And be it enacted, that upon the hearing of Proceedinffof 
 any such mdtion as aforesaid the said Court may either the Court on 
 
 such motion. 
 
78 
 
 SIR GEORGE TURNERS ACT. 
 
 If debts or cer- 
 tain liabilities 
 allowed, and 
 not paid or 
 provided for, 
 order may be 
 made for pay- 
 ment or 
 accounts. 
 
 Court, on ap- 
 plication of 
 executors or 
 
 dismiss such motion, or "may order the debt or claim to 
 which such motion relates to be allowed or disallowed, as 
 the case may be, and either wholly or partially, or may 
 direct further inquiry or further proceedings, oy way of 
 action or otherwise, touching such debt or claim, and 
 after such inquiry or proceedings may, upon furthei: 
 motion, deal with such debt or claim as to the said 
 Court shall seem just: provided always, that no new 
 evidence shall be received by the said Court upon the 
 hearing of any such motion without special leave of the 
 said Court. 
 
 XXII. And be it enacted, that in case any debt or 
 any certain liability shall have been allowed as aforesaid, 
 and shall not within fourteen days after the report has 
 become absolute as to such debt or liability, or after the 
 same shall have been allowed by the said (^ourt, be paid 
 01 provided for by appropriation to the satisfaction of the 
 person who has established such liability, it shall be 
 lawful for the said Court, by order, to be made, in case 
 of any debt remaining due, upon the application by 
 motion or petition of the person to whom the debt re- 
 mains due, and on notice to the executors or administra- 
 tors, and in case of any certain liability remaining 
 unprovided for by appropriation, upon the application 
 by motion or petition of the person by whom such 
 liability has been established, or of the executors or 
 administrators, and on notice by the party applying to 
 the other of them, to order payment of the debts which 
 may have been allowed and remain unpaid, and to pro- 
 vide for the certain liabilities which may have been 
 allowed and remain unprovided for, in like manner as 
 the same could or might have been paid or provided for 
 in a suit for that purpose instituted by bill, or to refer it 
 to the Master to take an account of the debts and certain 
 liabilities allowed as aforesaid which remain unpaid or 
 unprovided for, and also the usual accounts of the per- 
 sonal estate of the«deceased person, with all usual and 
 proper directions ; and every such order shall have the 
 same force and effect and shall be prosecuted and car- 
 ried on in like manner as a decree in a creditor's suit 
 instituted by bill. 
 
 .XXIIl. And be it enacted, that in- case any contin- 
 gent liability shall be allowed by the said report or by 
 the said Court, it shall be lawful for the said Court, by 
 
13 & 14 VICT. c. 35. 79 
 
 order, to be made upon the application of the executors administrators, 
 or administrators, by motion or petition, on notice to the ™ay d'""?" ' *P' 
 person who may have established such contingent liabi- P™P"*''™ °' 
 
 f- i"'i /. n 1 n money to an- 
 
 lity, to order such sum ot money, part oi the estate of swercontin- 
 the deceased person, as to the said Court shall seem just, gent liability. 
 to be set apart and appropriated for answering such con- 
 tingent liability, and to give such directions as the said 
 Court shall think fit touching the payment of such sum 
 of money into Court, and the investment thereof, and 
 the payment, application, or accumulation of the interest 
 or dividends thereof in the meantime and until the same 
 shall be required to answef such liability, and vphen such 
 liability shall be ascertained or determined to give such 
 . directions as to the payment of such sum out of Court as 
 the said Court shall deem right : provided always, that 
 no order to be made as aforesaid shall in any manner 
 bind the assets so appropriated as against the persons 
 entitled to the estate of the deceased subject to the con- 
 tingent liability: and any person interested in such 
 appropriated assets may apply to the Court touching th« 
 same as he may be advised. 
 
 XXIV. And be it enacted, that after the filing of Court may re. 
 such report as aforesaid it shall . be lawful for the said strain proceed. 
 Courtj upon the application of the executors or adminis- '"S^ against 
 trators of the deceased, by order, to be made on motion, admiTi*i°tra™r'iT 
 to restrain by injunction any proceedings at law against 
 
 ' them by any person having or claiming to have any 
 demand upon the estate of the deceased by reason of 
 any debt or liability, other than the persons who may 
 have established contingent liabilities under the said 
 order for which no appropriation may have been made. 
 
 XXV. And be it enacted, that in case no debt or protection to 
 liability, or no debt or liability other than a contingent be afforded to 
 liability, shall have been allowed as aforesaid, or in case executors and 
 any debt or liability other than as aforesaid shall have "'J"""'""*""- 
 been allowed as aforesaid, then after the same shall have 
 
 been paid or provided for by appropriation as aforesaid, 
 all payments made by the executors or administrators, 
 or any of them, on account of the estate of the deceased 
 person, and all dispositions of such assets made by them 
 or any of them on account of such estate, shall, as against 
 all persons having or claiming to have any demand upon 
 such estate by reason of any debt or liability, other than 
 persons who may have established under the said order 
 
80 SIR GEORGE TURNEr's ACT. 
 
 any contingent liability for which no such appi-opriation 
 as aforesaid may have been made, be as good and 
 effectual as if the same had been made under a decree 
 of the said Court : provided always, that nothing herein 
 contained shall in any manner affect or prejudice the 
 rightsof any creditor or other person having any demand 
 or claim upon the estate of the deceased against any 
 assets so paid or disposed of, or against the persons to 
 whom such payment or disposition may have been made, 
 or against any assets appropriated under the provisions 
 of this act, and the appropriation of which, if made 
 nnder a decree of the said Court in a suit to which he 
 was not a party, would not have been binding upon him. 
 Notwithstand- XXVI. And whereas by an act passed in the third 
 'f3&Twm^4 ^^^ fourth years of the reign of his, late Majesty King 
 c. 94, judges ' William the Fourth, intituled An Act for the Regulation, 
 of the Court of the Proceedings and Practice of certain Offices of the 
 may hear and jjigj^ Court of Chancery in England, it is enacted, "That 
 pficatki'ns men- ^^^ Masters in ordinary of the High Court of Chancery 
 tioned in act, shall hear and determine all applications for time to 
 if they think plead, answer, or demur, and for leave to amend bills, 
 and for enlarging publication, and all such other matters 
 relating to the conduct of suits in the said Court as the 
 Lord Chancellor, with the advice and assistance of the 
 Master of the Rolls and Vice Chancellor, or one of them, 
 shall by any General Order or Orders direct, in such 
 manner and under such rules and regulations as by any 
 General Order or Orders, to be also issued , by the Lord 
 Chancellor, with the advice and assistance aforesaid, 
 shall be directed, and that it shall be lawful for either 
 party to appeal by motion from the order made on such 
 application to the Lord Chancellor, Master of the Rolls, 
 or Vice Chancellor, and that the order made on such 
 appeal shall be final and conclusive :" and it is enacted, 
 "That no such application as above mentioned shall in 
 future be heard by any of the jiidges of the said Court 
 of Chancery, except on appeal as hereinbefore provided:" 
 and -whereas the last-mentioned enactment has been 
 found to be inconvenient: be it therefore enacted, that, 
 notwithstanding the provisions of the said act, it shall 
 be lawful for any of the judges of the said Court to hear 
 and determine any such application as mentioned in the 
 said act in the first instance, if under special circum- 
 stances he shall think fit so to do. 
 
13 & 14 VICT. c. 35. 81 
 
 XXVJI. And be it enacted, that all exceptions for Exceptions for 
 
 scandal, impertinence, and insufficiency, which according scandal, imper- 
 
 to the existing practice of the said Court are referred to insufficiency 
 
 the Masters of the said Court, shall not any longer be so to be heard by 
 
 referred, but shall be heard and determined by the said *''^ ^°"'''- 
 Court in the first instance. 
 
 XXVIII. And be it enacted, that, notwithstanding Power for 
 any rule or practice of the said Court to the contrary, it ^°"!;f "ot"'"'- 
 
 , •',,,, r, - _ _ . T /•■, 11 • n standing any 
 
 Shall be lawiul tor the said Court, at the heanng oi any rule, &c. to 
 cause or of any further directions therein, to receive proof the contrary, 
 by affidavit of all proper parties being before the Court, tyXdlvit™"^ 
 and of all such matters as are necessary to be proved for 
 enabling the said C'ourt to order payment of any monies 
 belonging to any married woman, and of all such other 
 matters not directly in issue in the cause as in the opinion 
 of the said Court may safely and properly be so proved. 
 
 XXIX. And be it enacted, that so much of an act Certain provi- 
 made and passed in the fifty-third year of the reign of 3°"^2rfnd^°' 
 his late Majesty King George the Third, intituled An svict-'co, 
 Act to facilitate the Administration of Justice, as provides repealed in 
 that the Vice Chancellor appointed under that act shall P"'"''- 
 
 have no power or authority to discharge, reverse, or alter 
 any'deeree, order, act, matter, or thing.made or done, by 
 any Lord Chancellor, Lord Keeper or Lords Commis- 
 sioners for the custody of the great seal, unless authorized 
 by the Lord Chancellor, Lord Keeper or Lords Com- 
 missioners for the time being so to do, ndr any power or 
 authority to discharge, reverse, or alter any decree, order, 
 act, matter, or thing made or done by the Master of the 
 Bolls, and so much of an act made and passed in the 
 fifth year of the reign of her present Majesty, intituled 
 An Act to make further Provisions for the Administration 
 of Justice, as provides that no Vice Chancellor appointed 
 under the authority of that act shall have power or au- 
 thority to discharge, reverse, or alter any decree, -order, 
 act, matter, or thing made or done by any other Vice 
 Chancellor to be appointed under that acl, not being a 
 predecessor in office of such Vice Chancellor, nor any 
 decree, order, act, matter, or thing made or done by any 
 Lord Chancellor, unless authorized by the Lord Chan- 
 cellor so to do, nor any power or authority to discharge, 
 reverse, or alter any decree, order, act, matter, or thing 
 made or done by the Master of the Rolls or the Vice 
 Chancellor for the time being appointed in pursuance of 
 
 G 
 
82 
 
 SIR GEORGE TURNERS ACT. 
 
 time. 
 
 an act passed in the fifty-third year of the reign of his 
 Majesty King George the Third, intituled An Act to 
 facilitate the Administration of Justice, shall be and the 
 same are respectively hereby repealed so far as the same 
 respectively apply to orders on. motion or petition of 
 course made by the Lord Chancellor, Master of the 
 Rolls, or any of the Vice Chancellors : and that it shall 
 be lawful for the Master of the Rolls and the Vice 
 Chancellors respectively to discharge, reverse, or alter 
 any order made on motion or petition of course by any 
 other of them, or by the Lord Chancellor. 
 Power to Lord XXX. And be it enacted, that it shall be lawful for 
 t*^raake"°enetai ^^^ ^^^ Chancellor, with the advice and consent of the 
 rales and orders Master of the RoUs and any one or more of the Vice 
 from time to Chancellors, from time to time to make, rescind, and 
 alter General Rules and Orders for better enabling the 
 opinion of the said Court to be obtained on special cases, 
 and for effectuating the purposes of this act as to the 
 debts and liabilities of deceased persons, and for making 
 any provisions which may be or be deemed necessary or 
 proper as to amendment, revivor, and supplemental 
 matter or relief, and as to costs of any proceedings under 
 or in pursuance of this act, and for regulating the times 
 and form and mode of procedure, and generally the 
 practice of the said Court in respect of the matters to 
 which this act relates, and every of them, and so far as 
 may be found expedient for altering the course of pro- 
 ceeding hereinbefore prescribed in respect to such matters 
 or any of them. 
 
 XXXL And be it enacted, that all such General Rules 
 and Orders shall be laid before both houses of Parliament, 
 Parliament and if Parliament shall be then sitting, immediately upon the 
 to be binding making and issuing the same, or, if Parliament shall not 
 be then sitting, then within five days after the next 
 meeting thereof; and that every such rule or order shall 
 from and after the time in that behalf to be appointed 
 by the Lord (Chancellor, with such advice and consent 
 bouse of Parlia- ^s aforesaid, and if no time shall be so appointed,i then 
 from and after the making thereof, be binding and obli- 
 gatory on the said Court, and be of like force and effect 
 as if the provisions therein contained had been expressly 
 enacted by Parliament : provided always, that if either 
 of the houses of Parliament shall, by any resolution 
 passed at any time before such ho\ise of Parliament shall 
 
 Rules and 
 orders to be 
 laid before 
 
 from the time 
 appointed, or 
 from tbe mak- 
 ing, unless 
 objected to by 
 vote of either 
 
13 & 14 VICT. c. 35. 
 
 83 
 
 have actually sat thirty-six days after such rules, orders, 
 and regulations shall have been laid before such house of 
 Parliament, resolve that the whole or any part of such 
 rules or orders ought not to continue in force,- in such 
 case the whole or such part thereof as shall be so in- 
 cluded in such resolution shall from and after such 
 resolution cease to be binding and obligatory on the said 
 Court ; provided also, that no such rule or order as 
 aforesaid shall by virtue of this act be of the like force 
 and effect as if the provisions therein contained had 
 been expressly enacted by Parliament, unless the same 
 shall be expressed to be made in pursuance of this act; 
 and that every such rule or order so expressed to be 
 made in pursuance of this act which shall not be laid 
 before both houses of Parliament within the time by 
 this act limited for that purpose shall from and after the 
 expiration of such time be absolutely void and of no 
 effect 
 
 XXXII. And be it enacted, that in the mea,ntime 
 and until any such General Rules or Orders shall be 
 made, and in so far as the same, when made, shall not 
 be applicable, the proceedings under this act shall be 
 governed and regulated by the provisions herein con- 
 tained so far as the same extend, and in so far as the 
 same do not extend shall, as well with respect to the 
 persons who ought to be made parties to special cases as 
 in every other respect, be governed and regulated by 
 the rules, orders, and practice of the said Court in suits 
 instituted by bill, so far as the same can be applied 
 thereto ; and, subject to such General Rules and Orders 
 as aforesaid, the costs of all proceedings under this act 
 shall be in the discretion of the said Court. 
 
 XXXIII. And be it enacted, that all decrees and 
 orders made under the provisions of this act shall be 
 subject to re-hearing, appeal, and review, and may be 
 discharged and varied, in the same and the like manner 
 as decrees and orders of the said Court made in suits 
 instituted by bill. 
 
 XXXIV. And be it enacted, that the following words 
 and expressions in this act shall have the several mean- 
 ings hereby assigned to them, unless there be something 
 either in the subject or in the context repugnant to such 
 construction : 
 
 Words importing the singular number only shall 
 
 G 2 
 
 Rules and 
 orders not laid 
 before Parlia- 
 ment vrithiri 
 time limited to 
 be void. 
 
 Until rules or 
 orders are 
 made, and if 
 not applicable 
 when made, 
 practice to be 
 according to 
 this act and 
 practice of the 
 Court. 
 
 Decrees and 
 orders to be 
 subject to 
 appeal, &c. 
 
 InterpretatioB 
 of terms. 
 
84 
 
 Commence- 
 ment of act.' 
 
 Act maj' be 
 amended, &c. 
 
 SIR GEORGE TCRNER's ACT. 
 
 include the plural number, and words importing 
 the plural number only shall include the singular 
 number : 
 
 Words importing the masculine gender only shall in- 
 clude females : 
 
 The expression "Lord Chancellor" shall mean and 
 include the Lord Chancellor, Lord Keeper and 
 Lords Commissioners of the great seal of the 
 United Kingdom for the time being : 
 
 The word "Master" shall mean Master in ordinary 
 of the High Court of (Chancery in England : 
 
 The word " lunatic " shall include idiots and persons 
 of unsound mind, and whether found such bj' in- 
 quisition or not: 
 
 The word " guardian " shall mean father or testa- 
 mentary guardian, or guardian appointed by the 
 Court of Chancery (not being a special guardian 
 appointed under the provisions of this act). 
 
 XXXV. And be it enacted, that this act shall com- 
 mence and take effect from and after the first day of 
 November one thousand eight hundred and fifty. 
 
 XXXVL And be it enacted, that this act may be 
 amended or repealed by any act to be passed in the 
 present session of Parliament. 
 
 SCHEDULE referred to by the foregoing Act. 
 
 [Bate.] 
 
 In the matter of A. B. late of in the 
 
 County of Banker [or as the case 
 
 may be,"] deceased. 
 Upon motion this day made unto this Court by Mr. 
 of counsel for C. D. of the Ex- 
 
 ecutor [or Administrator] of the above named A. B. [or 
 upon the humble petition of C. D. of the 
 
 executor {or administrator) of the said A. B., this day 
 preferred unto the Right Honourable the Master of the 
 Rolls -for the reasons therein contained], it is ordered, 
 that it be referred to the Master of this Court in rotation 
 to take an account of the debts and liabilities affecting 
 the personal estate of the said A. B. and to compute 
 
13 & 14 VICT. c. 35. 85 
 
 interest on such of the said debts and liabilities as carry 
 interest after the rate of interest the same respectively 
 carry ; and the said Master is to cause an advertisement 
 to be published in the London Gazette and such other 
 public papers as he shall think fit for the persons claim- 
 ing in respect of any such debts or liabilities to come in 
 before the said Master, and prove their debts and claims, 
 and he is to fix a peremptory day for that purpose ; and 
 such of the said creditors as shall not come in and prove 
 their debts and claims by the time so to be limited are 
 to be excluded the benefit of this order: and it is or- 
 dered, that the said Master do distinguish debts from 
 liabilities, and liabilities certain from liabilities contin- 
 gent : and it is ordered, that the personal estate of the 
 said A. B. be applied in payment and satisfaction of 
 such debts and habilities of the said A. B. in a due 
 course of administration : and for the better taking the 
 said accounts and discovery of the matters aforesaid the 
 parties are to produce before the said Master, upon oath, 
 all deeds, books, papers, and writings in their custody or 
 power relating thereto, and are to be examined upon 
 interrogatories as the said Master shall direct ; and any 
 of the parties are to be at liberty to apply to the Court 
 as there shall be occasion (a). 
 
 (a) See the 19th section of the Act. 
 
86 GENERAL ORDERS. 
 
 ORDER OF COURT. 
 
 The 1th day of August 1852. 
 
 The Eight Honourable Edward Burtenshaw Lord St, 
 Leonarcfe, Lord High Chancellor of Great Britain, by and 
 with the advice and assistance of the Right Honourable Sir 
 John Romilly, Master of the Rolls, the Right Honourable 
 the Lord Justice Sir James Lewis Knight Bruce, the Right 
 Honourable the Lord Justice Lord Cranworth, the Right 
 Honourable the Vice Chancellor Sir George James Turner, 
 the Honourable the Vice Chancellor Sir Richard Torin 
 Kindersley, and the Honourable the Vice Chancellor Sir 
 James Parker, doth hereby, in pursuance and execution of 
 all powers enabling him in. that behalf, order and direct: — 
 
 That all and every the orders, rules, and directions • 
 hereinafter set forth shall henceforth be, and for all pur- 
 poses be deemed and taken to be, general orders and rules 
 of the High Court of Chancery, viz. : 
 
 L That no appeal from any decree, order, or dismis- 
 sion, or any. re-hearing of the case on which such decree, 
 order or disn)ission is founded, shall be allowed, unless the 
 same is set down for hearing, and the requisite notice 
 thereof duly served, within five years from the date of any 
 such decree, order, or dismission respectively. 
 
 n. That all decrees and orders, and all dismissions, 
 pronounced or made in any cause, claim or matter in this 
 Court which shall be enrolled, shall be so enrolled within 
 six calendar months after the same shall be so pronounced 
 or made respectively, and not at any time after without 
 special leave of the Court, such leave to be obtained in 
 manner next hereinafter mentioned. 
 
GENERAL ORDERS. 
 
 III. In case any party is desirous to enrol a decree, or 
 order, or dismission after the expiration of six calendar 
 months from the time the same shall have been ipade, he 
 shall obtain an order for that purpose, and which order, 
 unless made by consent of the adverse party, or on motion 
 and notice to all the parties, shall be a conditional order 
 in the first instance, but shall become absolute without 
 further^ order, unless cause is shewn against it within twenty- 
 eight days after the service of the order. 
 
 IV. That where a caveat is entered with the proper 
 oflScer to stay the signing of the docket of the enrolment 
 of any decree, order, or dismission, such caveat shall be 
 prosecuted with effect within twenty-eight days after the 
 docket of such decree, order or dismission shall be left to 
 be signed with the proper oflBcer by the party who entered 
 the same, otherwise such caveat shall be of no force; and 
 the docket of such decree, order, or dismission may imme- 
 diately, after the expiration of the said twenty-eight days 
 be presented to be signed, as if no such caveat had been 
 entered. 
 
 V. That no enrolment of any decree, order, or dismis- 
 sion shall be allowed after the expiration of five years from 
 the date thereof. 
 
 VI. That the Lord Chancellor, either sitting, alone, or 
 with the Lord Justices, or either of them, shall be at 
 liberty, where it shall appear to him under the peculiar 
 circumstances of the case to be just and expedient, to en- 
 large the periods hereinbefore appointed for a rehearing, or 
 an appeal, or for an enrolment. 
 
 VII. That these orders shall take effect on and from the 
 twenty-eighth day of October next. 
 
 (Signed) St. Leonards, C. 
 
 John Romilly, M. R. 
 
 J. L. Knight Bruce, L. J. 
 
 Cranworth, L. J. 
 
 G. J. Turner, V. C. 
 
 Richard T. Kindersley, V. C. 
 
 James Parker, V. C. 
 
 87 
 
S^ GKNEHAL OHDERS. 
 
 ORDER OF court; 
 
 Saturday, the 7th day of Avgust 1852. 
 
 The Right Honourable Edward Burtenshaw, Lord St. 
 Leonards, Lord High Chancellor of Great Britain, by and 
 with the advice and assistance of the Right Honourable 
 Sir John Romilly, Master of the Rolls, the Right Honour- 
 able the Lord Justice Sir James Lewis Knight Bruce, the 
 Right Honourable the Lord Justice Lord Cran worth, the 
 ~ Right Honourable the Vice Chancellor Sir George James 
 Turner, the Flonourable the Vice Chancellor Sir Richard 
 Torin Kindersley, and the Honourable the Vice Chancellor 
 Sir James Parker, doth hereby, in pursuance of an act of 
 Parliament passed in the fifteenth and sixteenth years of 
 her present Majesty, intituled " An Act to amend xhe 
 Practice and Course of Proceeding in the High Court of 
 (Chancery," and in pursuance and execution of all other 
 powers enabling him in that behalf, order and direct: — . 
 That all and every the orders, rules, and directions 
 hereinafter set forth shall henceforth be, and for all purposes 
 be^deemed and taken to be, general orders and rules of the. 
 High Court of Chancery ; viz. 
 
 Printing. 
 
 I. Bills and claims are to be printed on writing royal 
 paper, quarto, in pica type, leaded ; and the copy to be filed 
 is to be interleaved with paper of the same description. 
 
 II. No costs are to be allowed, either as between party 
 and party, or as between solicitor and client, for any written 
 bill or written copy of a bill, filed under the 15 & 16 Vict. 
 
GENERAL ORDERS. 89 
 
 c. 86, s. 6, or for any \*ritfen copy thereof, served upon any 
 defendant thereto, or for any written brief of such bill, 
 unless the (3ourt shall, in disposing of the costs of the 
 cause, direct the allowance thereof. 
 
 III. The clerks of records and writs shall, at the expi- 
 ration of fourteen days from the filing of any written bill 
 or written copy of a bill, take off the files of the Court, 
 without further order, the bill or copy so filed, unless a 
 printed copy thereof shall in the meantime have been filed, 
 and the plaintiff in the suit, or his solicitor, who shall per- 
 sonally have undertaken to file such printed copy, shall pay 
 to the defendant all the costs incurred by him in the suitj 
 such 'costs to be taxed by the taxing Master, without 
 further order, upon production to him of the certificate of 
 the clerk of records and writs, that a printed copy of the 
 bill has not been filed pursuant to such undertaking, and to 
 be recoverable in like manner as costs ordered to be paid 
 by a party in a suit to another party in a suit are now 
 recoverable. 
 
 IV. In lieu of the fees now payable to solicitors for 
 instructions for bills for engrossing bills and claims, for 
 copies of bills and claims, for abbreviating bills and making 
 a brief thereof, solicitors shall be entitled to charge, and be 
 allowed in suits commenced after these orders come into 
 operation, the fees specified in schedule (A) to these 
 orders. 
 
 V. The payment to be made by the defendant to the 
 plaintiff for printed copies of the bill or claim shall be at 
 the rate of one halfpenny per folio. 
 
 VI. No defendant shall be at liberty to demand from 
 the plaintiff more than ten printed copies of his bill or 
 claim. 
 
 Amendment of Bills and Claims. 
 
 VII. Where, according to the present practice of the 
 Court, an amendment of a bill or claim may be made 
 without a new engrossment thereof, a bill or claim may be 
 amended by written alterations in the printed bill of com- 
 plaint or claim so to be filed, and by additions on the paper 
 to be interleaved therewith, according to the directions of 
 Order I. 
 
 VIII. The practice of amending a defendant's copy of 
 the bill shall, with respect to the amendment of bills filed 
 after these orders come into operation, be abolished. 
 
90 
 
 GENERAL ORDERS. 
 
 IX. A copy of an amended bill or claim, whether upon 
 an amendment by a reprint, or by such alterations and 
 additions as mentioned in Order VII., is to be served 
 upon the defendant or his solicitor; and such copy may 
 be partly printed and partly written, if the amendment is 
 not made by a reprint; but in every case the copy to be 
 served is to be stamped with the proper stamp by one of 
 the clerks of records and writs, indicating the filing of 
 such amended bill or claim, and the date of the filing 
 thereof. 
 
 X. In all cases where, according to the present practice 
 of the Court, a subpoena to appear to and to answer an 
 amended bill may be served upon the solicitor of a de- 
 fendant, service upon the defendant's solicitor of a copy 
 of an amended bill, whether wholly printed, or partly 
 printed and partly written, shall be good service on the 
 defendant. 
 
 XL Where a defendant has appeared in person to any 
 bill, service at the address for service of such defendant of 
 a copy of an amended bill, whether wholly printed, or 
 partly printed and partly written, shall be good service on 
 the defendant. 
 
 Limitatipn of ■preceding Orders. 
 
 XII. None of the preceding orders shall apply to bills 
 or claims filed before these orders come into operation, 
 though afterwards amended; and the existing practice of 
 the Court is to continue in force, with reference to the 
 amendment of such bills and claims. 
 
 XIII. The existing practice of the Court with reference 
 to issuing and serving writs of subpoena to appear to and 
 answer bills and writs of summons on claims is also to 
 continue in force with respect to bills and claims filed 
 before these orders come into operation. 
 
 Form of Bill. 
 
 XIV. Bills may be in a form similar to the form set out 
 in schedule (B) to these orders, with such variations as 
 the nature and circumstances of each particular case may 
 
 require, (a) 
 
 Interrogatories . 
 
 XV. The interrogatories for the examination of the 
 
 (a) See infra, Appendix of Forms. 
 
GENERAL ORDERS. 
 
 defendant to a bill may be in a form similar to the form set 
 out in schedule (C) to these orders, with such variatipns as 
 the nature and circumstances of each particular case may 
 require, (a) 
 
 XVI. In cases in which the plainfifF requires an answer 
 to any bill from any defendant or defendants thereto, the 
 interrogatories for the examination of such defendant or 
 defendants are to be filed within eight days after the time 
 limited for the appearance of such defendant or defendants. 
 
 XVII. If the defendant appear in person, or by his own 
 solicitor, within the time»limited for that purpose by the 
 rules of the Court, the plaintiif is, within eight days after 
 the time allowed for such appearance, to deliver to the 
 defendant or defendants so required to answer, or to his or 
 their solicitor or solicitors, a copy of the interrogatories 
 so filed as aforesaid, or of such of them as the particular 
 defendant or defendants shall be required to answer. And 
 the copy so to be delivered is to be examined with the 
 original, and the number of folios counted by the clerks of 
 records and writs, who on finding that such copy is duly 
 stamped and properly written are to mark the same as an 
 office copy. 
 
 XVIII. If any defendant to a suit commenced by bill do 
 not appear in person, or by his own solicitor, within the 
 time allowed for that purpose by the rules of the Court, 
 and the plaintiff has filed interrogatories for his examina- 
 tion, the plaintiff may deliver a copy of such interrogatories 
 so examined and marked as aforesaid to the defendant, at 
 any time after the time allowed to such defendant to ap- 
 pear and before his appearance in person or by his own 
 solicitor; or the plaintiff may deliver a copy of such inter- 
 rogatories so examined and marked as aforesaid, to the 
 defendant or his solicitor, after the appearance of such de- 
 fendant in person or by his own solicitor, but within eight 
 days after such appearance. 
 
 XIX. A defendant required to answer a bill must put 
 in his plea, answer, or demurrer thereto, not demurring 
 alone, within fourteen days from the delivery to him or his 
 solicitor of a copy of the interrogatories which he is required 
 to answer; but the Court shall have full power to enlarge 
 the time, from time to time, upon application being made 
 to the Court for that purpose. 
 
 (a) See infra, Appendix of Forms. 
 
92 GENERAL. ORDERS. 
 
 XX. After the time allowed by Order XVI. for filir^g 
 interrogatories for the examination of any defendant, r|o 
 interrogatories are to be filed for the examination of su^h 
 defendant, without special leave of the Court, to be applied 
 for upon notice of motion. 
 
 Form of Answer. 
 
 XXI. Answers may be in ^ form similar to the form set 
 out in schedule (D) to these orders, with such variations 
 as the nature and circumstances of each particular case 
 may require, (a) 
 
 Motion for Decree. 
 
 XXIL One month's notice is to be given by the plaintiflF 
 to the defendant or defendants, of the motion for a decree 
 or decretal order. 
 
 XXIII. The affidavits to be used in support of such 
 motion are to be filled before the service of such notice, 
 and a list of such affidavits is tcJ be set forth at the foot of 
 such notice. 
 
 XXIV. The defendant, within fourteen days after service 
 of such notice, is to file his afiBdavits in answer, and to fur- 
 nish the plaintiff or his solicitor with a list thereof. 
 
 XXV. Within seven days after the expiration of such 
 fourteen days the plaintiff is to file his afKdavits in reply, 
 which affidavits shall be confined to matters strictly in 
 reply, and he is to furnisK the defendant or his solicitor 
 with a list thereof; and except so far as these affidavits are 
 in reply, they are not to be regarded by the Court, unless 
 upon the hearing of the motion the Court shall give leave 
 to the defendant to answer them, and in that case the costs 
 of such affidavits, and of the further affidavits consequent 
 upon them, shall be paid by the plaintiff, unless the Court 
 shall otherwise order. 
 
 XXVI. No further evidence on either side is to be used 
 upon such motion for a decree or decretal order, without 
 leave of the Court. 
 
 XXVII. Every notice of motion for a decree or decretal 
 order is to be entered with the registrar, who is to make 
 out a list of such motions, and the same are to be heard 
 according to such list, unless the Court shall make order to 
 the contrary. 
 
 (a) See infra, Appendix of Forms, 
 
GENERAL ORDERS. 
 
 XXVIII. Where a defendant shall not have been re- 
 quired to answer and shall not have answered the plaintiff's 
 bill, so that under the 15 & 16 Vict. c. 86, s. 26, he is to 
 be considered as having traversed the case made by the 
 bill, issue is nevertheless to be joined by filing a repli- 
 cation in the form or to the effect of the replication now 
 in use. 
 
 Dismissal for want of Prosecution. 
 
 XXIX. A defendant to a suit commenced by bill, who 
 shall not have been required to answer the bill, and shall 
 not have answered the same, shall be at liberty to apply for 
 an order to dismiss the bill for want of prosecution, at arsy 
 time after the expiration of three months from the time of 
 his appearance, unless a motion for a decree or decretal 
 order shall have been set down in the meantime, or the 
 cause shall have been set down to be heard ; and the Court 
 may, upon such application, if it shall think fit, make 
 an order dismissing the bill, or make such other order or 
 impose such terms as may appear just and reasonable. 
 
 Impertinence. 
 
 XXX. The application to be made for the costs of any 
 impertinent matter introduced into any bill, answer, or 
 other proceeding, is to be made at the time when the Court 
 disposes of the costs of the cause or matter, and not at any 
 other time. 
 
 Evidence. 
 
 XXXI. The time within which the plaintiff in any suit 
 commenced by bill is to give the defendant notice of the 
 mode in which he desires that the evidence to be adduced 
 in the cause shall be taken, is to be seven days after issue 
 joined therein; and if the plaintiff shall not, within such 
 time, give any such notice, or if the plaintiff shall give such 
 notice, and shall therein desire the evidence to be adduced 
 upon affidavit, the plaintiff and defendant respectively shall 
 be at liberty to verify their respective cases by affidavit, 
 unless the defendant, or some or one of the defendants if 
 more than one, shall, within fourteen days after the expi- 
 ration of the said period of seven days, give notice to the 
 plaintiff, or his solicitor, that he or they desire the evidence 
 to be oral. 
 
94 GENERAL ORDEHS. 
 
 XXXII. The evidence on both sides in afiy cause to be 
 used at the hearing thereof, whether taken orally (and in- 
 cluding the cross-examination and re-examination of any 
 witness or witnesses) or taken upon affidavit, is to be closed 
 within nine weeks after issue joined therein, except that 
 any witness who has made an affidavit intended to be used 
 by any party to such cause at the hearing thereof shall be 
 subject to cross-examination within one month after the 
 expiration of such period of nine weeks. 
 
 XXXIII. No affidavit filed before issue joined in any 
 cause shall be received or receivable at the hearing thereof, 
 unless within one month after issue joined notice in 
 v^riting shall have been given by the party intending to 
 use the same, to the opposite party of his intention in that 
 behalf. 
 
 XXXIV. Any party desiring to cross-examine a witness 
 who has made an affidavit in any cause intended to be used 
 at the! hearing thereof, shall give forty-eight hours' notice 
 to the party on whose behalf such affidavit was filed, or to 
 
 , the party intending to use the same, of the time and place 
 of such intended cross-examination, in order that such 
 party may, if he shall think fit, be present at such cross- 
 examination. 
 
 XXXV. The re-examination of any such witness is 
 immediately to follow his cross-examination, and is not to 
 be delayed to a future period. 
 
 XXXVI. Any party in any cause or matter requiring 
 the attendance of any witness before an examiner, for the 
 purpose of his being examined or cross-examined, with a 
 view to his evidence being used upon any claim, motion, 
 petition, or other proceeding before the Court, not being 
 the hearing of a cause, shall give to the opposite party or 
 parlies forty-eight hours' notice at least of his intention to 
 examine such witness, and of the time and place of such 
 examination, unless the Court shall in any case think fit to 
 dispense with such notice. 
 
 XXXVII. And where it is desired to cross examine any 
 party, whether a party to the cause or matter or not, who 
 has made an affidavit to be used, or which shall be used on 
 any claim, motion, petition, or other proceeding before the 
 Court, not being the hearing of a cause, the party desiring 
 so to cross-examme such deponent shall give such notice to 
 the opposite party as is required by Order XXXIV. with 
 
GENERAL ORDERS. 95 
 
 reference to the cross-examination of a witness who has 
 made an affidavit to be used on the hearing of a cause. 
 
 XXXVIIL All the above orders with reference to the 
 examination, cross-examination, and re-examination of wit- 
 nesses, shall extend and be applicable to evidence taken in 
 any cause subsequently to the hearing thereof. 
 
 XXXIX. In suits in which issue shall have been joined 
 when these orders come into operation, the evidence to be 
 used at the hearing of the cause shall be taken according to 
 the existing practice of the Court, unless the parties shall 
 consent, or the C^ourt shall order, that the same shall be 
 taken in the mode prescribed by the act 15 & 16 Vict. 
 c. 86, and these orders. 
 
 Adding to Decree. 
 
 XL. The time within which a party served with notice 
 of a decree under section 42 of the above act may apply 
 to the Court to add to the decree, is to be one month after 
 such service. 
 
 XLI. A memorandum of the service upon any person or 
 persons of notice of the decree in any suit under the said 
 section, rule 8, is to be entered in the office of the clerks 
 of records and writs upon due proof by affidavit of such 
 service. 
 
 Summons. 
 
 XLII. The summons to be obtained under section 45 
 of the above act may be in a form similar to the form set 
 forth in schedule (E) to these orders, with such variations 
 as the circumstances of the case may require, (a) 
 
 Reuivor and Supplement. 
 
 XLIII. Ariy party under no disability, or under the 
 disability of coverture, who may be served with an order 
 to revive any suit, or to carry on the proceedings therein, 
 may apply to the Court to discharge such order within 
 twelve days after such service ; and any party being under 
 any disability, other than coverture, who may be so served, 
 may apply to the Court to discharge such order within 
 twelve days after the appointment of a guardian or guardians 
 ad litem for such party ; and until such period of twelve 
 days shall have expired such order shall have no force or 
 effect as against such last-mentioned party. 
 
 (a) See infra. Appendix of Forms. 
 
96 GENERAL ORDEKS. 
 
 New Facts or Circumstances. 
 
 XLIV. If the plaintiff in any cause which is not in such 
 a state as to allow of an amendment being made in the bill 
 shall desire to state or pnt in issue any facts or circum- 
 stances which may have occurred after the institution of 
 the suit, he may state the same, and put the same in issue 
 by filing in the record and writ clerk's office a statement, 
 either written or printed, to be annexed to the bill; and 
 such proceedings by way of answer, evidence, and other- 
 wise, are toie had and taken upon the statement so filed, 
 as if the same were embodied in a supplemental bill: pro- 
 vided always, that the Court may make any order which it 
 shall think fit for accelerating the proceedings thereunder, 
 or proceedings therein, in any manner which may appear 
 just and practicable. 
 
 Injunction. 
 
 XLV. No injunction for stay of proceedings at law is to 
 be granted as of course for default of appearance or answer 
 to the bill. 
 
 Power of Court. 
 
 XLVI. The power of the Court to enlarge or abridge 
 the time for doing any act or taking any proceedings in 
 "any cause or matter, upon such, if any, terms as the justice 
 of the case requires, is unaffected by these orders. 
 
 Commencement of Orders. 
 
 XL VII. These orders shall take effect and come into 
 operation on the second day of November, one thousand 
 eight hundred and fifty-two. 
 
 Interpretation. 
 
 XLVIII. In these orders the following words have the 
 several meanings hereby assigned to them, over and above 
 their several ordinary meanings, unless there be something 
 in the subject or context repugnant to such construction; 
 viz. : 
 
 1. Words importing the singular number include the 
 plural number, and words importing the plural number 
 include the singular number.' 
 
GENERAL ORDERS. 97 
 
 2. Words importing the masculine gender include 
 females. 
 
 3. The word "bill" includes "information." 
 
 4. The word " partj " include? " a body politic or cor- 
 porate." 
 
 5. The word *^ affidavit" includes "affirmation." 
 
 St. Leonards, C. 
 
 John Romilly, M. R. 
 
 J. L. Knight Bruce, L. J. 
 
 Cranworth, L. J. 
 
 G. J. Turner, V. C. 
 
 Richard T. Eindursley, V. C. 
 
 James Parker, V. C. 
 
 SCHEDULE (A). 
 table of fees. 
 
 £ s. 
 
 d. 
 
 1 14 
 
 
 
 
 
 4 
 
 
 
 2 
 
 For instructions for bill _ _ . 
 
 For making a copy of a bill or claim for the printer, 
 per folio - _ - _ _ 
 
 For correcting the proof sheet, per folio - 
 
 For printer's bill (as paid), deducting any copies 
 paid for by the defendant - ._ , " 
 
 For amending each copy of a bill or claim to serve 
 
 where there is no reprint - - - 13 4 
 
 Instructions for brief to be allowed on a replica- 
 tion being filed, or on a motion for a decree on 
 a bill, or in an injunction cause on moving for 
 the injunction ; but so that this fee shall be 
 charged once oply in the progress of a cause - 1 1 
 
 For amending each brief of a bill or claim where 
 
 there is no reprint - - - - 13 4 
 
 For perusing and considering the bill on behalf of 
 each defendant, or set of defendants, appearing 
 by the same solicitor - - -110 
 
 h 
 
'98 GENERAL ORDERS. 
 
 ORDER OF COURT. 
 
 Saturday, the \&th day of October 1852. 
 
 The Right Honourable Edward Burtenshaw, Lord St. 
 Leonards, Lord High Chancellor of Great Britain, by and 
 with, the advice and assistance of the Right Honourable 
 Sir John Romilly, Master of the Rolls, the Right Honour- 
 able the Vice Chancellor Sir George James Turner, and 
 the Honourable the Vice Chancellor Sir Richard Torin 
 Kindersley, doth hereby in pursuance of an act of Par- 
 liament passed in the fifteenth and sixteenth years of her 
 present Majesty, intituled " An Act to abolish the Office of 
 Master in Ordinary of the High Court of Chancery, and 
 to make provision for the more speedy .and efficient despatch 
 of business in the said Court," and in pursuance and exe- 
 cution of all other powers enabling him in that behalf, 
 order and direct: — 
 
 That all and every the orders, rules, and directions 
 hereinafter set forth shall henceforth be, and for all pur- 
 poses be deemed and taken to be. General Orders and 
 Rules of the Hi^ Court of Chancery> viz. — 
 
 Summons. 
 
 I. The summons for the purpose of proceedings before 
 the Master of the Rolls and v ice Chancellors l-espectively 
 at chambers, whether originating in chambers or not, may^ 
 be in a form similar to the foitrt set foTth in Schedule (A) 
 -to thege Orders, ■?fith such variations as tihe, circumstances 
 of the case may require, (d) 
 
 (a) See infra, Appendix of Forms. 
 
GENKRAL ORDERS. 99 
 
 II. The summons to be issued under section 30 of the 
 act of 15 & 16 Vict, c 80, may be in a form similar to the 
 form set forth in Schedule (B) to these orders, with such 
 variations as the circumstances of the case may require, (a) 
 
 III. A seal is forthwith to be provided for the chambers 
 of the Master of the Rolls and each of the Vice Chan- 
 cellors, and summonses are to be prepared by the parties, 
 and sealed by one of the clerks, at the chambers of the 
 judge from whose chambers they are issued, and a copy of 
 such summons is to be left at the judge's chambers by the 
 party obtaining such summons. 
 
 IV. In cases of applicaBons under 15 & 16 Vict. c. 86, 
 s. 45, applications tor guardianship and maintenance of 
 infants, originating in chambers, and of all other applica- 
 tions originating in chambers, a duplicate of the summons 
 is to be filed in the record and writ office, and in cases 
 where service is required, the copies served are to be 
 stamped in the manner provided by sect. 46 of the act of 
 15 & 16 Vict. c. 86. 
 
 V. In cases where proceedings originate in chambers, 
 the Original summons is to be served seven clear days before 
 the return thereof. All other summonses, not being sum- 
 monses referred to in Order II, are to be served two clear 
 days before the return thereof. * 
 
 VI. In cases where proceedings originate in chambers, 
 and where from any cause the summons may not have 
 been served upon any party seven clear days before the 
 return thereof, an endorsement may be made upon the 
 summons, and upon a copy thereof stamped for service, 
 appointing a new time for the parties not before served to 
 attend at the chambers of the judge, and such endorse- 
 ments are to be sealed at the judge's chambers, and the 
 service of the copy so endorsed and sealed, is to have the 
 same force and effect as the service of an original summons ; 
 and where any party has been served before such endorse- 
 ment, the hearing thereof may upon the return of the 
 summons be adjourned to the new time so appointed. 
 
 Appearances, 
 VIL In all cases where proceedings originate in cham- 
 beiB, the parties served are before they are heard in 
 chambers to enter appearances in the record and writ 
 office, and give notice thereof. 
 
 (a) See infra, Appendix of Forms. 
 H 2 
 
100 GENERAL ORDERS. 
 
 Orders and Directions, applicable to all Cases, whether 
 originating in Chambers or not. 
 
 VIII. In all cases in which by any order any accounts 
 are directed to be taken, or inquiries to be made, each 
 direction shall be numbered, so that as far as may be each 
 distinct account and inquiry may be designated by a 
 number, and such order may be in the form set forth in 
 schedule (C) to these orders, with such variations as the 
 circumstances of the case may require, (a) 
 
 IX. Where an order is made directing an account of 
 debts, claims, or liabilities, or an inquiry for next of -kin 
 or other unascertained persons, unless otherwise ordered, 
 all persons who do not come in and prove their claims 
 within the time which may be fixed for that purpose by 
 advertisement, are to be excluded from the benefit of the 
 order. 
 
 X. Where an order is made directing an account of 
 the debts of a deceased person, unless otherwise ordered, 
 interest is to be computed on such debts as to such of them 
 as carry interest after the rate they respectively carry and 
 as to all others after the rate of four per cent, per annum, 
 from the date of the*>rder. 
 
 XI. Where an order is made directing an account of 
 legacies, unless otherwise ordered, interest is to be com- 
 puted on such legacies after the rate of four per cent, per 
 annum, from the end of one year after the deceased's 
 death, unless any other time of payment or rate of interest 
 is directed by the will, and in that case according to the 
 will. 
 
 XII. Where an order is made directing any property to 
 be sold, unless otherwise ordered, the same is to be sold 
 with the approbation of the judge to whose Court the 
 cause or matter is attached, to the best purchaser that can 
 be got for the same, to be allowed by such judge, and all 
 proper parties are to join therein as such judge shall 
 direct. 
 
 XIII. Where an order is made directing a receiver to 
 be appointed, unless otherwise ordered, the person to be 
 appointed is first to give security, to be allowed by the 
 judge to whose C^ourt the cause is attached, and taken 
 before an officer or agent of the Court in the country, if 
 
 (a) See infra, Appendix of Furms. 
 
GENERAL ORDERS. 101 
 
 there shall be occasion, duly to account for what he shall 
 receive on account of the rents and profits, for the receipt 
 of which he is to be appointed, at such periods as such 
 judge shall appoint, and to account for and pay the same 
 as the Court shall direct, or as the case may be, to be 
 answerable for what he shall receive in respect of the per- 
 sonal estate, for the getting in and collection of which he 
 is to be appointed, and to account for and pay the same as 
 the Court shall direct; and the person so to be appointed 
 is to be allowed a proper salary for his care and pains in 
 receiving such rents and»profits, or, as the case may be, to 
 have an allowance made to him in respect of his collecting 
 such personal estate. 
 
 XIV. The general orders of the Court with respect to 
 receivers shall, mutatis mutandis, apply to receivers ap- 
 pointed under orders made after these rules and regulations 
 come into operation. 
 
 XV. Recognizances which have been heretofore given to 
 the Master of the RoUs and the senior master in ordinary 
 are hereafter to be given to the Master of the Rolls and 
 the senior Vice Chancellor for the time being. 
 
 "a" 
 
 Proceedings in Chambers. 
 
 XVI. In all cases where matters, in respect of which 
 summonses have been issued, are not disposed of upon the 
 return of the summons, the parties are to attend from time 
 to time without further summons, at such time or times 
 as may be appointed for the consideration or further con- 
 sideration of the matter. 
 
 XVII. In all cases of proceedings in chambers under 
 any order, the solicitor prosecuting the same shall leave 
 a copy of such order at the judge's chambers, and shall 
 certify the same to be a true copy of the order as passed 
 and entered. 
 
 XVIII. Upon a copy of the order being left, a summons 
 is to be issued to proceed with the accounts or inquiries 
 directed, and upon the return of such summons, the judge 
 is to be satisfied by proper evidence that all necessary 
 parties have been served with notice of the order, and 
 thereupon directions are to be given as to the manner in 
 which each of the accounts and inquiries is to be prose- 
 cuted, the evidence to be adduced in support thereof, the 
 parties who are to attend on the several accounts and in- 
 
102 GENERAL ORDERS. 
 
 quiries, and the time within which each proceeding is to 
 be taken; and a day or days may be appointed for the 
 further attendance of the parties, and all such directions 
 may afterwards be varied or added to as may be found 
 necessary. 
 
 XIX. If, upon the hearing of the summons, it shall 
 appear to the judge that by reason of absence, or for any 
 other sufficient cause, the service of notice of the order 
 upon any party cannot be made, or ought to be dispensed 
 with, the judge may, if he shall think fit, wholly dispense 
 with such service, or may, at his discretion, order any 
 substituted service, or notice by advertisement or otherwise, 
 in lieu of such service. 
 
 XX. If, in the prosecution of the order, it shall appear 
 to the judge that it would be expedient that further ac- 
 counts should be taken or furthet inquiries made, he may 
 order the same to be taken or made accordingly, or if 
 desired by any party may direct the same to be considered 
 in open Court. 
 
 XXI. At the time any summons or appointment is ob- 
 tained, an entry thereof is to be made in a book, called 
 " the summons and appointment book," stating the date 
 on which the summons is issued or appointment made, the 
 name of the cause or matter, and by what party, and 
 shortly, for what purpose such summons or appointment 
 is obtained, and at what time returnable. 
 
 XXII. Lists of matters appointed for each day are to 
 be made out and affixed outside the doors of the cham- 
 bers of the respective judges, and, subject to any special 
 direction, such matters are to be heard in the order in 
 which they appear in such list. 
 
 XXIII. The course of proceeding in chambers is ordi- 
 narily to be the same as the course of proceeding in Court 
 upon motions. No states of facts, charges, or discharges 
 are to be brought in. But when directed, copies, abstracts, 
 or extracts of or from accounts, deeds, or other documents, 
 and pedigrees and concise statements, are to be supplied 
 for the use of the judge and his chief clerk, and, where so 
 directed, copies are to be handed over to the other parties. 
 But no copies to be made of deeds or documents where the 
 originals can be brought in without special direction. 
 
 XXIV. The party intending to use any affidavit on any 
 proceeding in chambers is to give notice to the other 
 parties concerned of his intention in that behalf. 
 
GENERAL ORDERS. 103 
 
 XXV. The practice of the Court with respect to evi- 
 dence before the hearing, when applied to evidence to be 
 taken before an examiner in any cause subsequently to the 
 hearing, is to be subject to any special directions which 
 may be given in any particular case. 
 
 XXVI. Where a chief clerk is directed by the judge to 
 examine any vfitness, the practice and mode of proceed- 
 ing is to be the same as in the case of the examination of 
 vfitnesses before the examiner, subject to any special 
 directions which may be given in any particular case. 
 
 XXVII. The original examinations and depositions of 
 parties and witnesses taken by or before the chief clerk, 
 authenticated by his signature, are to be transmitted by 
 him to the record and writ oflBce, to be there filed, and any 
 party to the suit or proceeding may have a copy thereof, 
 or of any part or portion thereof, upon payment of the 
 proper fee. 
 
 XXVIII. All orders made in chambers, and drawn up 
 by the chief clerks or registrars, are to be entered in the 
 same manner and in the same office as orders made in 
 open Court are entered. 
 
 XXIX. Where any account is directed to be taken, the 
 accounting party is, unless the judge shall otherwise direct, 
 to make out his account and verify the same by affidavit. 
 The items on each side of the account are to be numbered 
 consecutively, and the account is to be referred to by the 
 affidavit as an exhibit, and to be left in the judge's 
 chambers. 
 
 XXX. Any party seeking to charge any accounting 
 party beyond what he has by his account admitted to have 
 received is to give notice thereof to the accounting party, 
 stating, so far as he is able, the amount sought to be 
 charged, and the particulars thereof, in a short and succinct 
 manner. 
 
 XXXI. Upon a receiver's account being left in the 
 judge's chambers to be passed, a summons to proceed 
 thereon is to be taken out; and the account, when passed, i\ 
 is to be entered by the solicitor of the receiver in books, 
 
 in the same manner as heretofore ; but the affidavit verify- 
 ing the account so passed is to refer to it as an exhibit, and ^ 
 not to be annexed to it. 
 
 XXXII. When a receivership has been completed, the 
 book containing The accounts is to be deposited in the 
 record and writ office. 
 
 XXXIII. Where advertisements are required for any 
 
lOi GENERAL ORDEUS. 
 
 purpose, a peremptory and only one is to be issued, unless 
 for any special reason it may be thought necessary to issue 
 a second advertisement or further advertisements ; and any 
 advertisement may be repeated as many times and in such 
 papers as may be directed. 
 
 XXXIV. The advertisements are to be prepared by the 
 solicitor, and submitted to the chief clerk for approval, 
 ■and, -when approved, are to be signed by him, and such 
 signature is to be sufficient authority to the printer of the 
 Gazette to insert the same. 
 
 XXXV. Advertisements for creditors or other claimants 
 are to fix a time for the creditors or claimants to come in 
 and prove their claims, and to appoint a day for the hearing 
 and adjudicating thereon, and may be in a form similar 
 to the form set forth in schedule (D) to these orders, with such 
 variations as the circumstances of the case may require, (a) 
 
 XXXVI. (Claimants coming in pursuant to advertise- 
 ment are to enter their claims at the chambers of the judge 
 in the " Summons and Appointment Book," for the day 
 appointed for hearing by the advertisement, and are to give 
 notice thereof and of the affidavit filed to the solicitors in 
 the cause, within the time specified in the advertisement 
 for bringing in claims. 
 
 XXXVII. The claimants filing affidavits are not to be 
 required to take office copies ; but the party prosecuting 
 the cause or matter is to take office copies, and produce 
 the same at the hearing, unless otTierwise ordered in 
 chambers. 
 
 XX^VIII, If on the day appointed for hearing the 
 claims there are any not then disposed of, an adjournment 
 day for hearing such claims is to be fixed ; and where 
 further evidence is to be adduced, a time may be named 
 within which the evidence on both sides is to be closed, 
 and directions may be given as to the mode in which such 
 evidence is "to be adduced. 
 
 XXXIX. Any claimant who has not before entered his 
 claim, may be heard on such adjournment day, provided he 
 enters his claim and files his affidavit four clear days prior 
 to such day, and no certificate of debts or claims shall in 
 the mean time have been made. 
 
 XL. Creditors claiming debts not exceeding 5Z. need 
 not attend on the day of hearing, unless required to do so 
 by notice from some party. • 
 
 («) See ihfra, Appendix of Forms. 
 
GENERAL ORDERS. 
 
 105 
 
 XLL After the time fixed by the advertisement, no 
 claims are to be received except as before provided, in case 
 of an adjournment, unless the judge at chambers shall 
 think fit to give special leave, upon application made by 
 summons, and then upon such terms and conditions as to 
 costs and otherwise as the judge shall think fit. 
 
 XLII. A list of all claims allowed shall, when required 
 by the judge, be made out and left in the judge's chambers 
 by the party prosecuting the order. 
 
 XLIII. In cases where the Court directs any computa- 
 tion of interest, or the apportionment of any fund, which is 
 to be acted upon by the Accountant General or other 
 person, without any further order from the Court, the 
 order to be made by the Court may direct such compu- 
 tation or apportionment to be made by one of the chief 
 clerks attached to the Court of such judge, and may direct 
 the certificate thereof signed by such chief clerk, to be 
 acted upon accordingly, without the same being signed and 
 adopted by the judge. 
 
 XLIV. Where an account has been directed, the certi- 
 ficate or report is to state the result of such account, and 
 not to set the same out by way of schedule, but is to refer 
 to the account verified by the affidavit filed, and to specify 
 by the numbers attached to the items in the account, which, 
 if any, of such items have been disallowed or varied, and 
 to state what additions, if anyj have been made by way of 
 surcharge. In any case in which the account verified by 
 the affidavit has been so altered, that it is necessary to have 
 a fair transcript of the account as altered, such transcript 
 may be required to be made by the solicitor prosecufing 
 the order, and is then to be referred to by the certificate 
 or report. The accounts and the transcripts, if any, re- 
 ferred to by certificates or reports, are to be filed therewith, 
 but no copies thereof are to be required to be taken by any 
 party. 
 
 XLV. The certificates or reports to be made by the 
 chief clerk to the judge are not, except the special cir- 
 cumstances of the case shall render it necessary, to set 
 out the order, or any documents or evidence or reasons, 
 but are to refer to the order, documents and evidence, or 
 particular paragraphs thereof, so that it may appear upon 
 what the result stated in any such certificate or report is 
 founded. 
 
 XLVL The certificate of the chief clerk to the judge 
 
106 
 
 GENERAL ORDERS. 
 
 may be in a form similar to the form set forth in schedule 
 (E) to these orders, with such variations as the circum- 
 stances of the case may require, and when prepared and 
 settled, it is to be transcribed by the solicitor prosecuting 
 the proceedings, in such form and within such time as the 
 chief clerk shall require, and is then to be signed by the 
 chief clerk at an adjournment to be made for that purpose. 
 But where, from the nature of the case, the certificate can 
 be drawn and copied in chambers whilst the parties are 
 present before the chief clerk, the same shall be then 
 completed and signed by him without any adjournment, (a) 
 
 XLVII. The time within which any party is to be at 
 liberty to take the opinion of the judge upon any pro- 
 ceeding which shall have been concluded, but as to which 
 the certificate or report of a chief clerk shall not have been 
 signed and adopted by«the judge, is to be four clear days 
 after the certificate or report shall have been signed by the 
 chief clerk. 
 
 XL VIII. Any party desiring to take the opinion of the 
 judge, as mentioned in the last preceding rule, is within 
 four clear days after the certificate or report shall have 
 been signed by the chief clerk, to obtain a summons for 
 such purpose. 
 
 XLIX. At the expiration of four clear days after the 
 certificate or report shall have been signed by the chief 
 clerk, if no party has in the meantime obtained-a summons 
 to take the opinion of the judge thereon, the chief clerk is 
 to submit the certificate or report to the judge for his 
 approval, and the judge may theretipon, if he approve the 
 sanie, sign such certificate or report in testimony of his 
 adoption thereof as follows : — " Approved, this day 
 
 of 
 
 L. The certificate or report, when signed by the judge, 
 with the accounts, if any, to be filed therewith, is to be 
 transmitted by the chief clerk to the report office, to be 
 there filed. 
 
 LL The time within which an application may be made 
 by summons or motion to discharge or vary any certificate 
 or report which has been signed and adopted by the judge 
 sitting in chambers, is to be eight clear days after the filing 
 of such certificate or report. 
 
 LII. Certificates of the chief clerk made as mentioned 
 
 (a) See infra. Appendix of Forms. 
 
GENERAL ORDERS. 107 
 
 in rule XLIII, and not required to be signed and adopted 
 by the judge, are to be transmitted and filed in the same 
 manner as those signed and adopted by the judge. 
 
 LIII. The Orders XLVII, XL VIII, XLIX, and LI., 
 are not to apply to certificates on passing receivers' ac- 
 counts. Such certificates may be approved and signed by 
 the judge without delay, and upon being so signed are to 
 be filed and forthwith acted upon. 
 
 LIV. A register is to be kept of all proceedings in the 
 judge's chambers, with proper dates, so that all the pro- 
 ceedings in each cause or matter may appear consecutively 
 and in chronological order, with a short statement of the 
 questions or points decided or ruled at any hearing. 
 
 LV. Parties attending any proceeding in chambers, 
 without having obtained the previous leave of the judge to 
 attend the same, are not to be tf owed any costs of such 
 attendance, unless by special order of the Court. 
 
 LVI. The costs of counsel attending the judge in cham- 
 bers are not in any case to be allowed, unless the judge 
 certifies it to be a proper case for counsel to attend. 
 
 Deposit of Deeds. 
 
 LVIL Where any deeds or other documents are ordered 
 to be left or deposited, the same are to be left or deposited 
 in the record or writ office, and are to be subject to such 
 directions as may be given for the production thareof. 
 
 Power of Judge. 
 
 LVIII. Powers and authorities given to the Masters in 
 ordinary of the tJourt of Chancery by any General Order 
 or Orders of the Court, may be exercised by the judge 
 sitting in chambers. 
 
 LIX. The power of the Court and of the judge sitting 
 in chambers to enlarge or abridge the time for doing any 
 act of taking any proceeding, and to give any special direc- 
 tion as to the course of proceeding in any cause or matter; 
 is unaffected by these orders. 
 
 Commencement of Orders. 
 
 LX, These orders shall take effect and come into opera- 
 lion from and after the first day of Michaelmas Term 
 1852. 
 
108 GENERAL ORDERS. 
 
 Interpretation. 
 
 LXI. In these orders the following words have the 
 several meanings hereby assigned to them, over and above 
 their several ordinary meanings, unless there be something 
 in the subject, or context, repugnant to such construction ; 
 viz. : — 
 
 1. Words importing the singular number include the 
 plural number, and words importing the plural number 
 include the singular number. 
 
 2. Words importing the masculine gender include 
 females. 
 
 3. The word "party," includes a body politic or cor- 
 porate. 
 
 4. The word "aflBdaviJk' includes aflSrmation. 
 
 5. The word "order, includes decree and decretal 
 order. 
 
 6. The word "receiver," includes consignee and ma- 
 
 nager. 
 
 St. Leonards, C. 
 
 John Romilly, M. R. 
 
 G. J. Turner, V. C. 
 
 Richard T. Kindersley, V. C. 
 
GENERAL OUDERS. 109 
 
 ORDER OF COURT. 
 
 Saturday, the %Zrd day of Oct(^er 1852. 
 
 The Right Honourable Edward Burtenshaw, Lord St. 
 Leonards, Lord High Chancellor of Great Britain, by and 
 with the advice and assistance 'of the Right Honourable Sir 
 John Romilly, Master of the Rolls, the Right Honourable 
 the Vice Chancellor Sir George James Turner, and the 
 Honourable the Vice Chancellor Sir Richard Torin Kin- 
 dersley, doth hereby, in pursuance of an act of Parliament 
 passed in the fifteenth and sixteenth years of her present 
 Majesty, intituled " An Act to abolish the Office of Master 
 in Ordinary of the High Court of Chancery, and to make 
 Provision for the more speedy and efiBcient Despatch of 
 Business in the said Court," and in pursuance and execu- 
 tion of all other powers enabling him in that behalf, order 
 and direct, as follows, videlicet: 
 
 I. The chief clerks of the Master of the Rolls, and Vice 
 Chancellors respectively, are directed to take the following 
 fees: — 
 
 £ s. d. 
 
 1. For every original summons for the purpose 
 
 of proceedings originating in chambers - 
 
 2. For every duplicate thereof 
 
 3. For every other summons 
 
 4. For every advertisement 
 
 5. For every certificate or report - 
 
 6. For every certificate upon the passing of a 
 
 receiver's or consignee's account, a fur- 
 ther fee in respect of each lOOZ. received 
 of - - - - 10 
 
 
 
 5 
 
 
 
 
 
 5 
 
 
 
 
 
 3 
 
 
 
 1 
 
 
 
 
 
 1 
 
 
 
 
 
110 GENERAL ORDERS. 
 
 £ S. d. 
 
 7. For every order drawn up by the chief clerk 
 
 made upon applications for time to plead, 
 answer or demur, for leave to amend bills 
 or claims, or for enlarging publication or 
 the period for closing evidence, or for the 
 production of documents, or applications 
 relating to the conduct of suits or matters - 5 
 
 8. For every other order drawn up by the chief 
 
 clerk - - - - 1 
 
 II. The registrars are directed to take the following 
 fees : — 
 
 For orders made by a judge in chambers, drawn up by 
 the registrar, the like fees as "before directed to be taken 
 by the chief clerk for orders drawn up by him. 
 
 .III. The record and writ clerks are directed to take 
 the following fees: — 
 For office copies of original depositions, and 
 
 examinations per folio - - - 4 
 
 For entering appearances to judge's summons, 
 
 same charge as for appearing to a bill. 
 For stamping every copy of a bill or claim for 
 
 service - - - - 5 
 
 For stampiag every copy of a judge's summons 
 
 for service - - - 5 
 
 For examining every copy or part of a copy of 
 , a set of interrogatories, and marking same as 
 
 an office copy - - - 5 
 
 IV. All fees received by officers of the Court, under xhs 
 preceding orders, are to be accounted for and paid by 
 them respectively, once in every month, into the Bank of 
 England, in the name of the Accountant General, to be, 
 placed to the account there entitled " The Suitors' Fee 
 Fund Account;" the amount so received and paid by such 
 officers respectively to be verified by the affidavit of the 
 accountant party. 
 
 V. Solicitors are entitled to charge and be allowed the 
 following fees: — 
 
 . £ s. d. 
 
 For instructions to commence proceedings Oiri- 
 
 gina^ing in chambers, or to defend the same 13 4 
 
 For preparing an original summons for the pur- 
 pose of proceedings originating in chaimbers 
 and" the duplicate thereof - - 13 4 
 
GENERAL ORDERS. Ill 
 
 £ S. d. 
 
 For attending at chambers to get such summons 
 
 and duplicate examined and sealed - 6 8 
 
 For attending at the record and writ office to 
 file duplicate and examine copies, and get 
 same stamped - - - 6 8 
 
 For endorsing a summons and the copies under 
 Order VI of 16th October 1852, and attend- 
 ing to get same sealed - - 6 8 
 For entering the appearance for one or more 
 
 defendants, if not exceeding three - 6 8 
 
 If exceeding three, for every additional number 
 
 not exceeding three an additional sum of - 6 8 
 In cases of proceedings originating in chambers 
 
 the same term fee as in a suit. 
 For preparing every other summons and at- 
 tending to get same filled up apd sealed at 
 chambers - - - - 6 8 
 
 For each copy of a summons to serve or leave at 
 
 chambers - - - 2 
 
 For attending on a summons or other appoint- 
 -mentj each day, a fee of 6«. 8*?., 13«. Ad., or 
 1 /. Is., according to circumstances ; but the 
 fee is to be 6«. Bd., unless a larger fee is 
 allowed by the judge or his chief clerk. 
 Where from the length of the attendance, or 
 from the difficulty of the case, the judge shall 
 think the highest of the above fees an insuffi- 
 cient remuneration for the services performed, 
 or where the preparation of the case to lay 
 it before the judge shall have required skill 
 and labour for which no fee has been allowed, 
 the judge may allow such further fee, not 
 exceeding one guinea, as in his discretion he 
 may think fit. 
 For preparing every advertisement - 6 8 
 
 For attending to get same approved and signed 6 8 
 For attending for every order drawn up by the 
 chief clerk, and at the registrar's office to get 
 same entered - - - 6 8 
 
 For attending to enter claim under Order 
 XXXVI of 16th October 1852, and to file 
 affidavit - - - - 6 8 
 
112 GENERAL ORDERS. 
 
 £, S. d. 
 
 For perusing the affidavits of claimants coming 
 in under Order XXXVI of 16th October 
 1852, and attending in chambers at the time 
 appointed by the advertisement, where the 
 number of claims does not exceed five - 110 
 
 Where the number exceeds five, for every ad- 
 ditional number, not exceeding five, an addi- 
 tional sum of - - - 1 1 
 
 For attending to bespeak and procure office 
 
 copy of certificate or report - _ - 6 8 
 
 For all other business performed such fees as by the 
 
 practice of the Court they are entitled to for similar 
 
 business. 
 
 (Signed) St. Leonards^ C. 
 
 John Romilly, M. R. 
 G. J. TUKNEE, V. C. 
 
 Richard T. KiNDEHSLEy, V. C. 
 
GENERAL ORDERS. 113 
 
 ORDER OF COURT. , 
 
 Monday, the 25th day of October 1852. 
 
 The Right Honourable Edward Burtenshaw, Lord St. 
 Leonards, Lord High Chancellor of Great Britain, doth 
 hereby, in pursuance of an act of Parliament passed in the 
 fifteenth and sixteenth years of the reign of her present 
 Majesty, intituled " An Act for the relief of the suitors 
 of the High Court of Chancery," and in pursuance and 
 execution of all other powers enabling him in that behalf, 
 order and direct that all and every the orders, rules, and 
 directions hereinafter set forth shall henceforth be, and for 
 all purposes be deemed and taken to be, " General Orders 
 and Rules of the High Court of Chancery," viz. : 
 
 L In lieu of copies of pleadings and other proceedings 
 in the Court of Chancery, and of the documents relating 
 thereto, being made and delivered by officers of the Court 
 at the office in which they are filed or left, copies of such 
 pleadings, proceedings, and documents (save as hereinafter 
 excepted), are to be madei, delivered, charged, and paid for 
 according to the following regulations : 
 
 1. The following copies are exempted from this order 
 that is to say, office copies of proceedings filed in the Re- 
 port Office ; office copies of answers, pleas, and demurrers ; 
 office copies of depositions of witnesses, and examination 
 of parties to be made for and taken by the party on whose 
 behalf such depositions and examinations have been taken ; 
 office copies of affidavits to be made for and taken by the 
 party filing the same ; and office copies of affidavits to be 
 taken under Order XXXVH. of 16th October 1852. 
 
 2. The party or his solicitor requiring any copy, save as 
 hereinbefore excepted, is to make a written application to 
 
114 GENERAL ORDERS. 
 
 be delivered to the party by whom the copy is to be 
 furnished, or his solicitor, with an undertaking to pay the 
 proper charges. 
 
 3. Upon such requisition being made with such underr 
 taking as aforesaid, copies of such pleadings, proceedings, 
 or documents, are to be made by the party or his solicitor 
 filing or leaving the same, or who under the first rule may 
 have taken office copies thereof. 
 
 4. The copies are to be ready to be delivered at the 
 expiration of forty-eight hours after the delivery of such 
 request and undertaking, or within such other time as 
 the Court may in any case direct, and are to be deli- 
 vered accordingly upon demand and payment of the proper 
 charges. 
 
 5. The changes for all such copies are to be at the rate 
 of 4rf. per folio. 
 
 6. Copies of bills of costs are to be made side for side, 
 so as to correspond with the bills p£ costs left in the 
 office. 
 
 7. The folios of all copies are to be numbered conse- 
 cutively in the margin thereof,, and the name and address 
 of* the party or solicitor, by whom the same is made, is to be 
 endorsed thereon in, like manner as upon the proceedings 
 in the Court ; and such party or solicitor is to be answerable 
 for the same being true copies of the original, or of an office 
 copy of the original pleadings, proceeding, or document of 
 which it purports to be a copy, as the case may be. 
 
 8. In cases of ex parte applications for injunctions, or 
 writs of ne. eiceat regno, the party making such application 
 is to deliver copies of the affidavits upon which it is granted^ 
 upon payment of the proper charges immediately upon the 
 receipt of such written request and undertaking as afore- 
 said, or within such time as may be specified in such 
 request, or may have been directed by the Coiirt. 
 
 9. Any party or solicitor who has taken any office copy 
 mentioned in Rule 2, is to produce the same in Court, or 
 at the judge's chambers, when required for the purpose of 
 the pi-oceedings to which the same relate. 
 
 IL That ail office copies, apd copies to be furnished by 
 parties or their solicitors, shall be written on paper of a 
 convenient size, with a sufficient margin, and in a neat and 
 legible manner, similar to that which is usually adopted by 
 law stationers ; and in the case of copies to be furnished 
 by parlies, or their solicitors, unless so written, the parties 
 
GENERAL ORDERS. 115 
 
 or solicitors furnishing them shall not be entitled to be paid 
 for the same. 
 
 HI. That in case any solicitor who shall be required to 
 furnish any such copy as aforesaid shall either refuse, or for 
 two clear days from the time when the application for such 
 copy shall have been made shall neglect, to furnish the 
 same, the person by whom such application shall be made 
 shall be at liberty to procure a copy from the office in which 
 the original shall have been filed, in the same way as if no 
 such application had been made to the solicitor, and in 
 such case no costs shall be due or payable to the solicitor 
 so making default in respect of the copy or copies so 
 applied for. 
 
 IV. That in case any solicitor by whom any such copy 
 ought to be furnished shall neglect to do so for such two 
 clear days as aforesaid, or for one clear day, an addition of 
 two clear days or one clear day, as the case may be, shall 
 be made to the period within whicL any proceeding which 
 may have to be taken after obtaining such copy ought to 
 be so taken, so that the person requiring such copy may 
 be as little prejudiced as possible by such neglect as 
 aforesaid. 
 
 V. That the taxing Master shall not allow any costs in 
 respect of any copy so taken as aforesaid^ unless the same 
 shall appear to him to have been requisite, and to have 
 been made with due care both as regards the contents and 
 the writing thereof; 
 
 VI. That from and after the first day of November next, 
 all the fees now payable in relation to such proceedings in 
 the said Court as are mentioned in the first part of the first 
 schedule hereinafter contained shall be abolished ; and the 
 fees specified in the second part of such schedule shall be 
 payable, and the same (save as provided by the seventh 
 of these orders) shall be collected, not in money, but by 
 means of stamps denoting the amount of such fees, stamped 
 or affixed, at the expense of the parties liable to pay the 
 fees, on or to the vellum, parchmeiit, or paper on which the 
 proceedings in respect whereof such fees are payable are 
 written, or printed, or which may be otherwise used in 
 reference to such proceeding. 
 
 And where any ofthe fees specified in the second part 
 of the said first schedule shall be payable in respect of any 
 matter or thing to be done by any officer, or in any office 
 of the Court, and it shall not have been customary to use 
 
 i2 
 
116 GENERAL ORDERS. • 
 
 any written or printed document or paper in reference to 
 such matter or thing, whereon the stamp could be affixed, 
 the party or his solicitor requiring such matter or thing to 
 be so done, shall make application for the same, by a short 
 note or memorandum in writing, and a stamp denoting the 
 amount of the fee so payable shall be stamped on, or affixed 
 to, such note or memorandum. 
 
 VII. That in all cases where the costs are directed to be 
 paid out of a fund in Court, the fees of taxation shall not 
 be payable by means of stamps, but shall be carried over by 
 the Accountant General to the credit of the suitors' fee fund ; 
 and, to that intent, the taxing Master shall in such cases 
 certify the amount of such fees. 
 
 VIII. That from and after the 28th October 1852, the 
 brokerage which shall or may from time to time be received 
 by the Accountant General of the Court of Chancery shall 
 be paid by him, on the first day of every month, or as soon 
 after as conveniently may be, into the Bank of England, to 
 be there placed to his credit as such Accountant General, 
 to the account entitled " the suitors' fee fund account." 
 
 IX. That, subject to the superintendence and direction 
 of the Accountant General of the Court of Chancery, with 
 the approbation of the Lord Chancellor, the first, second, 
 and third clerks in each division of the Accountant General's 
 office, shall from and after the said 28th day of October 
 1852, and until other Order or provision shall be>made in 
 that behalf, continue to perform the acts or duties hitherto 
 performed by such clerks, and which are mentioned in the 
 said second schedule, in addition to the duties prescribed 
 by act of Parliament as heretofore ; and such fees as are 
 specified in the second schedule hereto shall be paid for 
 such acts as aforesaid, to be accounted for in like manner 
 as the other fees now received in the office of the said 
 Accountant General, and to be collected by means of stamps 
 in like manner as provided by Order VI; and from and 
 after the said 28th day of October 1852, no other person 
 shall perform such acts or duties. 
 
 And in order to enable the Lord Chancellor, with the 
 consent of the Commissioners of her Majesty's Treasury, 
 from time to time to fix the amount of the yearly salaries 
 to be paid to such clerks, the Accountant General shall 
 every six months make a return to the liord Chancellor of 
 the amount received during the preceding six months in 
 respect of such fees. 
 
GENERAL ORDERS. 117 
 
 The First Schkdcle to which the foregoing Orders 
 refer. 
 
 Part I. — FEES NOW PAYABLE WHICH ARE TO BE 
 ABOLISHED. 
 
 Masters^ Office. 
 
 £ s. d. 
 
 For drawing every report exclusive of schedules 
 of accounts of parties accounting before the 
 Masters, and exclusive of the fee on signing, 
 per folio - - - - 1 
 
 For drawing schedules of accounts of parties 
 
 accounting before the Master, per folio - 6 
 
 For taking the acknowledgment of any deed 6 
 
 For searching for papers in a cause or matter 
 
 not in immediate progress before the Master 6 8 
 
 For entering accounts of receivers, consignees, 
 
 and committees, per folio, in each book - 4 
 
 For entering accounts of parties accounting be- 
 fore the Master in a book, if required, per 
 folio - - - - 4 
 
 For every exhibit - - - 2 6 
 
 When a Master shall be required to attend a 
 party to administer on oath, there shall be 
 paid a further fee of 10s. over and besides the 
 coach hire, or reasonable travelling expenses of 
 the Master - - - 10 
 
 And for copies of every document or writing 
 made in the Master's oflBce, and also for the 
 transcript of every report, pursuant to the 
 act of Parliament 3 & 4 Wm. 4, cap, 94, and 
 the General Orders of 26 th October 1842, 
 per folio - - - - 4 
 
 Registrars' Office. 
 
 1. For every decree or order on the original 
 hearing of the cause, and ou further 
 directions - - - 3 10 
 
 2. For every office copy thereof - - 2 
 
 3. For every order on petition or motion of 
 
 course, not exceeding one side - 3 
 
118 
 
 GENERAL ORDERS. 
 
 £ 
 
 s. 
 
 d. 
 
 
 
 1 
 
 
 
 
 
 10 
 
 
 
 
 
 10 
 
 
 
 2 
 
 10 
 
 
 
 1 
 
 
 
 
 
 4. For every additional side of such order - 
 
 5. For every order on other petitions, where the 
 reference is directed, but the decision of the 
 Master is not to be final, and also where the 
 petition is dismissed 
 
 6. For every office copy thereof - 
 
 7. For every order for a special injunction, or 
 
 for the appointment of a receiver 
 
 8. For every office copy 
 
 9. For every order for payment of money out 
 
 of Court, and for no other purpose, where 
 the sum or sums thereby specifically di- 
 rected to be paid shall not exceed in the 
 whole lOOZ. . - 10 
 
 10. For every office copy thereof - 5 U 
 
 1 1. For every order of transfer out of Court, or 
 sale of any sum or sums of government 
 stock or South Sea Annuities, (excepting 
 Long Annuities and annuities for terms of 
 years), and for no other purpose, where the 
 sura or sums thereby specifically directed to 
 be transferred or sold shall not exceed in 
 
 the whole lOOZ. stock or annuities - 10 
 
 12. For every office copy thereof - - 5 
 
 13. For every order for payment out of Court of 
 
 any annuity or annuities, not exceeding in 
 the whole 51. per annum, or of any interest 
 or dividends upon stock or annuities, not 
 exceeding in the whole 5L per annum, and 
 for no other purpose 
 
 14. For every office copy thereof 
 14a. For every office copy of every other order 
 
 for payment or transfer out of Court 
 
 15. For every other order on special motions 
 
 16. For every office copy thereof - 
 
 17. For every order on arguing exceptions - 
 
 18. For every office copy thereof - 
 
 1 9. For every order on arguing pleas and de- 
 
 murrers - - - - 
 
 20. For every office copy thereof - 
 
 21. For every order on petition of appeal or re- 
 
 hearing - - - - 
 
 22. For every office copy thereof - 
 
 
 
 10 
 
 
 
 
 
 5 
 
 
 
 1 
 
 
 
 
 
 1 
 
 
 
 
 
 
 
 10 
 
 
 
 2 
 
 
 
 
 
 1 
 
 
 
 
 
 1 
 
 
 
 
 
 
 
 10 
 
 
 
 2 
 
 
 
 
 
 1 
 
 
 
 
 
2 
 
 
 
 
 
 1 
 
 
 
 
 
 
 
 10 
 
 
 
 
 
 5 
 
 
 
 
 
 10 
 
 
 
 
 
 5 
 
 
 
 
 
 
 
 6 
 
 2 
 
 
 
 
 
 
 
 10 
 
 
 
 1 
 
 
 
 
 
 
 
 5 
 
 
 
 GENERAL ORDEBS. 119 
 
 £ S. d. 
 
 23. For every order on petitions not herein other- 
 
 wise specified - - - 
 
 24. For every office copy thereof - 
 
 25. For every order in any matter of lunacy 
 
 26. For every office copy thereof - 
 
 27. For every order in any matter of bankruptcy 
 
 28. For every office copy thereof - 
 
 29. For every copy of a petition of appeal on the 
 
 rehearing, per side ~ - 
 
 30. For every order on the hearing of a claim on 
 further directions - " 
 
 31. For every office copy thereof - 
 
 32. For every order on arguing exceptions (on 
 claim) - - - - 
 
 33. For every office copy thereof - 
 
 34. For every order (on a claim) for transfer out 
 of Court or sale of any government stock, 
 &c., exceeding IGOZ. stock or annuities ; and 
 for every order for payment out of Court of 
 any annuity or annuities, or of any in- 
 terest or dividends upon stock or annuities, 
 exceeding in the whole 51. per annum - 1 10 
 
 35. For every office copy thereof - - 10 
 
 36. For every order for payment of money out 
 of Court where the sum or sums thereby 
 directed to be paid shall exceed lOOZ. and 
 shall not exceed in the whole 500Z. ; and 
 for transfer out of Court or sale of any sum 
 or sums of government stock or South Sea 
 Annuities (excepting Long Annuities or 
 annuities for terms of years), when the sum 
 or sums thereby directed to be transferred 
 or sold shall exceed lOOZ. and shall not ex- 
 ceed in the whole 500Z., and for payment 
 out of Court of any annuity or annuities ex- 
 ceeding 51. and not exceeding in the whole 
 25/. per annum, or of any interest or divi- 
 dends upon stock or annuities exceeding 51. 
 and not exceeding in the whole 25Z. per 
 annum, and for no other purpose - 10 
 
 37. For every office copy thereof - - 10 
 
 38. For every other order for payment or transfer 
 
 out of Court - - - 2 
 
120 GENERAL OBDEKS. 
 
 Report Office. £ «■ d. 
 
 Searches, 6«?. per year - - - 6 
 
 Examination of oflSce copies for evidence, per 
 
 folio of ninety words - - - Ij 
 
 Entering Seats. 
 
 For every order or decree left for entry, con- 
 taining 168 words on a side - - 6 
 For every certificate on Master's report. - 10 
 Entering every attachment , - - 2 
 
 Affidavit Office. 
 
 For filing every, aflBdavit, with or without sche- 
 dules, or other papers thereto annexed - 4 
 
 For the registrar's or his deputy's hand to every 
 copy of an affidavit, with or without schedules 
 , or other papers thereto annexed • - 10 
 
 For every search for an affidavit for each term, 
 Qd., with the liberty of reading it over, if 
 found - - - - 6 
 
 For searching for, and' taking an original affidavit 
 off the file in order to attend the Lord Chan- 
 cellor or Master of the Rolls therewith, or to 
 be made use of in any Court - - 6 8 
 
 For attending therewith, at the Lord Chancellor's, 
 or at any of the Courts at Westminster, or in 
 London, each time - - - 6 8 
 
 For examining the copy of every affidavit^' with 
 the original, in order to make use of such copy 
 as evidence in any other Court than the Court 
 
 . of Chancery - - - - 1 
 
 Taking affidavits for distringas - - 1 i) 
 
 For carrying an original affidavit by the registrar, 
 or his deptity, to any assizes, for each day, in- 
 cluding horse hire and expenses 110 
 
 For trouble, attendance, and taking security to 
 return an original affidavit to the office, when 
 by an order of the Court such original affi- 
 davit is directed to be delivered to an associate 
 or clerk of assize, to be made use of at the 
 assizes - - - - 6 8 
 
 For every exhibit - - 2 6 
 
general' orders. 121 
 
 Examiners. £ s, d. 
 
 Every witness sworn, including Qath - 2 6 
 
 Ditto, sworn, and not examined, including oath 5 
 
 Every witness examined on close holidays - 17 8 
 Examining copy depositions, with record to 
 prove on trial at law, if more than 40 sheets, 
 
 for each sheet - - - 2 
 
 Record and Writ Clerks. 
 * 
 Sealing special injunction - - 110 
 
 Resealing any writ, or any alteration thereof 3 
 
 Every exemplification, per skin, exclusive of 
 
 parchment and duty - - - 1 14 
 
 Amending every office copy, if more -than ten 
 
 folios, for every folio over - - 4 
 
 Search for records when in record room, or for 
 
 any person not being a party in the cause, for 
 
 each year after the first year - - 1 
 
 Every exhibit to an affidavit, &c. - 2 6 
 
 Taxing Masters. 
 
 For copies of bills of costs, and other documents, 
 
 per folio - - - 4 
 
 For drawing every report, per folio - 10 
 
 Per centage on amount of every bill of costs as 
 
 taxed - - - - 2 10 
 
 For every exhibit - - 2 6 
 
 Door Keeper of the Court of Chancery. 
 
 For every cause heard on each side 
 
 In every further directions, ditto 
 
 In every exceptions, each set 
 
 Every appeal, or rehearing, one side 
 
 Every plea, or demurrer, one side 
 
 Every guardian assigned 
 
 Out of 1/, paid on setting down every petition 
 
 Every lunatic petition 
 
 Every witness examined viva voce 
 
 Every prisoner by habeas corpus 
 
 Setting down causes to be heard 
 
 
 
 13 
 
 
 
 
 
 13 
 
 
 
 
 
 13 
 
 
 
 
 
 13 
 
 
 
 
 
 13 
 
 
 
 
 
 13 
 
 
 
 
 
 3 
 
 
 
 
 
 3 
 
 
 
 
 
 1 
 
 6 
 
 
 
 2 
 
 6 
 
 1 
 
 
 
 
 
122 GENERAL ORDERS. 
 
 Setting down cause at rolls 
 
 Term fee from Attorney- General 
 
 Term fee from Solicitor-General 
 
 Upon swearing into offices before the Lord 
 
 Chancellor - 
 
 From each Queen's counsel per term 
 
 Rolls Court. — Secretaries. 
 
 For drawing and copying every order of course 
 
 For entering every order of course 
 
 For entering every order for setting down 
 further directions, exceptions, pleas, and de- 
 murrers - ' - 
 
 For filing every petition for an order of course 
 
 For answering and setting down every petition 
 for hearing - _ _ 
 
 For setting down every cause for hearing 
 
 For setting down every cause on further direc- 
 tions - - - - 
 
 For setting down every set of exceptions 
 Ditto demurrer 
 
 Ditto plea 
 
 Ditto rehearing 
 
 For advancing every cause 
 
 For entering every caveat against the enrolment 
 of a decree or order - - _ - 
 
 For eve^ docket of decree or order signed by 
 the Master of the Rolls 
 
 For every office copy of an order - 
 
 For every fiat of enrolment 
 
 On hearing out of Term of every cause, further 
 " directions, pleas, demurrers, and where decree 
 is made, each party - - - 13 
 
 On hearing of every petition iu which an order 
 
 is made, the petitioner pays - - 7 
 
 From each party, on the hearing of a cause in 
 
 Term time - - - - 2 6 
 
 From each party on the hearing of a cause in 
 
 Michaelmas and Hilary Terms only - 10 
 
 For papers left at the Secretary's office for the 
 Master of the Rolls on further directions, 
 exceptions, &c. - - - 5 
 
 £ s. 
 
 d. 
 
 1 
 
 
 
 1 10 
 
 
 
 1 
 
 
 
 2 12 
 
 6 
 
 1 12 
 
 
 
 5 
 
 6 
 
 
 
 6 
 
 
 
 6 
 
 1 
 
 
 
 6 
 
 6 
 
 1 
 
 
 
 12 
 
 6 
 
 10 
 
 
 
 10 
 
 
 
 10 
 
 
 
 1 0, 
 
 
 
 10 
 
 
 
 5 
 
 
 
 2 
 
 6 
 
 
 
 6 
 
 5 
 
 6 
 
GENERAL ORDERS. 123 
 
 £, S. d. 
 
 For every recognizance vacated - - 6 
 
 On the appointment of every guardian in Court 
 
 for infants out of Term - - 7 
 
 For silk gowns. — A fee payable by each of her 
 Majesty's counsel attending at the Rolls Court, 
 for each Term - - - 12 6 
 
 In the Office of the Accountant General. 
 
 Certificate of payment in, jinder order 
 
 Ditto under act of Parliament 
 
 Certificate of transfers into Court uuder order 
 Ditto under act 
 
 Certificate of investment of principal money - 
 Ditto of interest money 
 
 Certificate of sale of stock 
 
 Certificate of transfer of stock out of Court - 
 
 Carried over . . _ 
 
 Deposit of Exchequer bills 
 
 Delivery out of ditto . _ - 
 
 Investment of principal money in Exchequer 
 bills - - . - 
 
 Ditto of interest money in ditto 
 
 Sale of Exchequer bills 
 
 Exchange of Exchequer bills 
 
 Chancery Subpvena Office. 
 
 For every subpoena - - - 5 6 
 
 For sealing every distringas - - 5 6 
 
 For filing affidavit - - -010 
 
 In tJie Office of the Secretary of Decrees and Injunctions. 
 
 Enrolling Lord Chancellor's and Vice Chancel- 
 lor's decree ... 
 The like. Master of the Rolls 
 Petition to enrol, nunc pro tunc - 
 Answering same _ . - 
 If private seal enrolling decree, extra 
 Searching if decree enrolled or caveats entered 
 
 
 
 2 
 
 
 
 
 
 4 
 
 
 
 
 
 2 
 
 
 
 
 
 4 
 
 
 
 
 
 3 
 
 6 
 
 
 
 2 
 
 
 
 
 
 2 
 
 6 
 
 
 
 1 
 
 6 
 
 
 
 2 
 
 6 
 
 
 
 5 
 
 
 
 
 
 5 
 
 
 
 
 
 5 
 
 6 
 
 
 
 4 
 
 
 
 
 
 5 
 
 
 
 
 
 5 
 
 
 
 
 
 10 
 
 6 
 
 
 
 10 
 
 6 
 
 
 
 1 
 
 
 
 
 
 10 
 
 
 
 
 
 3 
 
 9 
 
 
 
 1 
 
 
 

 
 5 
 
 
 
 
 
 5 
 
 
 
 
 
 3 
 
 
 
 1 
 
 
 
 
 
 1 
 
 
 
 
 
 1 
 
 
 
 
 
 1^4 GENERAL ORDERS. 
 
 Part II. FEES TO BE COLLECTED BY MEANS OF STAMPS. 
 
 In the Judge's Chambers. 
 
 £ s. d. 
 
 For every original summons for the purpose of 
 proceedings originating in chambers 
 
 For every duplicate thereof 
 
 For every other summons 
 
 For every other order drawn up by the chief 
 clerk, made upon applications for time to plead, 
 answer, or demur, for leave to amend bills or 
 claims, or for enlarging publication, or the 
 period for closing evidence, or for production 
 of documents, or applications relating to the 
 conduct of suits or matters - 5 
 
 For every other order drawn up by -the chief 
 clerk ... 
 
 For every advertisement 
 
 For every certificate or report 
 
 For every certificate upon the passing of a re- 
 ceiver's and consignee's account, a further 
 fee in respect of each I OOZ. received of - 10 
 
 In the Master's Offices. 
 
 For every warrant or summons 
 
 For every certificate or report 
 
 For taking the acknowledgment of every married 
 woman _ _ - . 
 
 For attending any Court per day by the clerk 
 
 For every oath 
 
 For every certificate upon the passing of a re- 
 ceiver and consignee's account, a further fee 
 in respect of each lOOZ. received of - 10 
 
 In the Registrar's Office. 
 
 For every decree or decretal order on the hear- 
 ing of a cause, or on further directions ; and 
 on the hearing of a special case, including the 
 Court fee and the charge for entry - 4 
 
 
 
 3 
 
 
 
 1 
 
 
 
 
 
 1 
 
 6 
 
 8 
 
 
 
 14 
 
 
 
 
 
 1 
 
 6 
 
GENERAL ORDERS. 
 
 £ S. d. 
 
 For every order for transfer or payment out of 
 Court of an amount not exceeding 200Z. stock 
 or cash, or interest on stock not exceeding 
 lOZ. per annum, and for every order on peti- 
 tion where the petition is dismissed - 10 
 
 For every order for transfer or payment out of 
 Court of an amount exceeding 200Z., but not 
 exceeding 500Z. stock or cash, of interest on 
 stock exceeding 10?. per annum, and not ex- 
 ceeding 25/. per annunj, and for every order 
 on special motion not herein otherwise spe- 
 cified - - ■ - 
 
 For every order on the hearing of claims, pleas, 
 demurrers, exceptions, or on petitions not 
 herein otherwise specified, or on petitions of 
 appeal, rehearing for injunctions, receivers, 
 and for writs of ne exeat regno - ' 
 
 For every office copy of a petition of appeal or 
 rehearing - 
 
 For every order on petition or motion of course, 
 including the entry thereof - - 
 
 For every office copy of a decree or order - 1 
 
 1 O 
 
 2 
 
 10 
 
 5 
 
 
 
 
 
 In the Report Office. 
 
 Upon every application for a search 
 For all office copies, at per folio 
 
 6 
 4 
 
 Affidavits. 
 
 For filing every affidavit, with or without sche- 
 dules or other papers thereto annexed, in- 
 cluding exhibits, if any 
 For the copy of every affidavit, for each folio - 
 Upon every application to inspect an affidavit 
 Upon every application for the officer to attend 
 with an affidavit or affidavits at the Lord 
 Chancellor's, or at any of the Courts at West- 
 minster or in London, each day 
 Upon every application for the officer to carry 
 an original affidavit to any assizes, for each 
 day, besides reasonable expenses of officer 
 
 2 
 
 
 
 10 
 
 1 
 
126 Gn:NERAri orders. 
 
 For every deponent, affirmant, or declarant to 
 an affidavit, affirmation, or declaration sworn, 
 affirmed, or declared in London, or within ten 
 miles of Lincoln's Inn Hall - - 16 
 
 Upon any applicatioh for the officer to attend 
 
 an invalid, including the attendance - 10 
 
 In the Examinei' s. Office. 
 
 For filing interrogatories - - 7 
 
 For all omee copies, per folio - - 4 
 
 For every witness sworn and examined, including 
 
 oath, for each hour - -0 5 
 
 For every witness sworn aind examined abroad 
 
 (besides coach hire and reasonable expenses) 17 
 If more than five miles from the examiners' 
 
 office> for the first day 
 For every other day 
 For attending .the Lord Chancellor or the 
 
 Master of tie Rolls with record, per day ^ 
 For attending any Master at his office 
 For attending with record in any other Court or 
 
 place in London or Westminstei-, per day - 10 
 If in the country, per day, besides reasonable 
 
 expenses - . - - 2 
 
 Upon every application to inspect depositions, 
 
 including the inspection - - 3 
 
 Upon every application to examine copies of 
 
 depositions with record, to prove on trial at 
 
 law - - - - 5 
 
 Upon every application to search book for 
 
 causes, including search - - 10 
 
 Upon every application to search book for depo- 
 sitions, including search - - 1 
 N.B.-:-These fees will shortly cease to be. payable 
 when the new system comes into operation. 
 
 In the Record and Writ Clerk's Office, 
 
 For all office copies, per folio 
 Filing every bill or informatioiT 
 For filing every claim 
 For filing every special case 
 
 2 
 
 15 
 
 
 
 2 
 
 2 
 
 
 
 
 
 10 
 
 
 
 
 
 10 
 
 
 
 
 
 
 
 4 
 
 1 
 
 
 
 
 
 
 
 5 
 
 
 
 1 
 
 
 
 
 

 
 8 
 
 
 
 
 
 4 
 
 
 
 
 
 5 
 
 
 
 
 
 5 
 
 
 
 
 
 5 
 
 
 
 
 
 5 
 
 
 
 1 
 
 
 
 
 
 GENERAL ORDERS. 127 
 
 Upon entering every appearance if not more 
 
 than three defendants - - 7 
 
 If more than three and not exceeding six de- 
 fendants - - - 14 
 
 And the same proportion for every number of 
 defendants. 
 
 For sealing an attachment or distringas, for 
 not appearing or answering 
 
 For every certificate - - - 
 
 For every copy of a bill or claim to be served 
 
 For every vrrit of summons, distringas, or sub- 
 poena _ _ _ - 
 
 For filing and entering dnplicate of every judge's 
 summons - - 
 
 For stamping every copy thereof 
 
 For sealing every other writ 
 
 For every oath, afiirmation, declaration, or at- 
 testation upon honor, - - 1 6 
 
 For examining every <;opy,. or part of a copy of 
 a set of interrogatories, an^ marking same as 
 an ofiice copy - - - 5 
 
 Upon every application jfor a search for a record, 
 
 and for searchiii^ - - - 2 
 
 Upon every application to inspect a record, and 
 
 for inspecting the same - - 5 
 
 Upon every application to inspect exhibits, if 
 
 occupied not more than one hour - 5 
 
 If more than one hour, per diem - - 10 
 
 Upon every application for the officer's attend- 
 ance in Courts of law per diem, and for his 
 attendance, besides reasonable expenses of the 
 ofiicer - - - - 1 
 
 Upon every application for the officer's attend- 
 ance in a Court of equity, per diem - 10 
 
 For examining and signing enrolments of de- 
 crees and orders - - - 3 
 
 For filing caveat against claim to revive, or against 
 
 decree or order for enrolment - - 5 
 
 For filing supplemental statement or statement 
 
 for revivor - - - 10 
 
 For office copies of depositions taken before 
 
 examiner, at per folio - - 4 
 
128 GENERAL ORDERS. 
 
 In the Taxing Masters Office. £ s. d. 
 
 For every warrant or summons, but not more 
 
 than one order or summons is to be issued 
 
 on one bill, or set of bills, unless the Taxing 
 
 Master shall think it necessary to issue a new 
 
 , - warrant or summons - - - 3 
 
 On signing every report and certificate - 10 
 
 Upon the Master's certificate of every bill of 
 costs, as taxed, where the amount shall not 
 exceed 20Z. - - - 10 
 
 Upon every additional 20?. or fractional part 
 
 thereof, a further fee of - - 10 
 
 For every oath, affirmation, or attestation upon 
 
 honor - - - - 1 6 
 
 In the Lord Chancellor's Principal Secretary's Office. 
 
 On all attendable petitions, appeals, rehearings, 
 
 and letters missive - - -1-00 
 
 On all non-attendable petitions - - 10 
 
 On a matter of course order, on a petition of right 10 
 
 On an order for a commission on a petition of 
 
 right - - - - 1 
 
 In the Office of the Secretary at the Rolls. 
 
 On every petition set down for hearing, to in- 
 clude the fee on hearing - - 1 
 On the petition for every order of course - 7 
 On the admission of every solicitor - 117 
 
 The Second Schedule to which the foregoing Order 
 refers: — 
 
 In the Office of the Accountant General. 
 
 1. For preparing English power of attorney with- 
 
 affidavit, exclusive of stamp duty - 3 6 
 
 2. For preparing foreign power of attorney 
 
 without affidavit - - - 
 
 3 For special power of attorney - 
 
 4. For copies of accounts, debtor and creditor's 
 
 side, per folio, as to be explained by General 
 Order - - - - 
 
 5. Upon every application for a search 
 
 (Signed) St. liEoNABDS, C. 
 
 
 
 3 
 
 
 
 
 
 5 
 
 
 
 
 
 
 
 3 
 
 
 
 5 
 
 
 
GENERAL ORDERS. 129 
 
 ORDER OF COURT. 
 
 Wednesday, the lOth day of Nooember 1852. 
 
 The Right Honourable Edward Burtenshaw, Lord St. 
 Leonards, Lord High Chancellor of Great Britain, doth 
 hereby, in pursuance of an act of Parliament passed in the 
 fifteenth and sixteenth years of the reign of her present 
 Majesty,. intituled "An Act for the Relief of the Suitors 
 of ^the High Court of (chancery," and in pursuance and 
 execution of all powers enabling him in that behalf 
 order, and direct as follows, videlicet : 
 
 All office copies and other copies of proceedings and 
 documents shall be counted after the rate of ninety words 
 to the folio, and where the same or any portion thereof, 
 shall be written with columns containing figures, in every 
 such case each figui% or combination of figures representing 
 a distinct denomination shall be counted as one word, 
 therefore 4151Z. 16s. 9d, would count as three words. 
 
 (Signed) St. Leonards, C. 
 
130 GENERAL ORDERS. 
 
 ORDER IN LUNACY. 
 
 Tuesday, the \fith day of November 1852. 
 
 I, Edward Burtenshaw, Baron St. Leonards, Lord High 
 Chancellor of Great Britain, intrusted hj virtue of the 
 Queen's Sign Manual with the care and commitment of the 
 custody of the persons and estates of persons found idiot, 
 lunatic, or of unsound mind, do order. 
 
 That all office copies' and other copies of proceedings 
 and documents in matters in luiiacy shall be counted after 
 the rate of ninety words to the folio, and where the same, 
 or any portion thereof, shall be written with columns con- 
 taining figures, in every such case each figure, of combina- 
 tion of figures representing a distinct denomination, shall 
 be counted as one word, therefore 415 H. 16s. 9d. would 
 count as three words. 
 
 (Signed) St. Leonards, C. 
 
GENERAL ORDERS. 
 
 131 
 
 ORDER OF COURT. 
 
 Friday, the 3rd day of December 1852. 
 
 The Right Honourable Edward Burtenshaw, Lord St. 
 Leonards, Lord High Chancellor of Great Britain, dolh 
 hereby, in pursuance of an act of Parliament passed in the 
 fifteenth and sixteenth years of the reign of her present 
 Majesty, intituled " An Act for the Relief of the Suitors 
 of the High Court of Chancery," and in pursuance and 
 execution of all other powers enabling him in that behalf, 
 order and direct as follows, that is to say, 
 
 J. That the Commissioners of Inland Revenue do prepare 
 stamps impressed upon adhesive paper, of the amounts 
 following, that is to say, threepence, fdurpence, eightpence, 
 one shilling and fourpence, one shilling and sixpence, two 
 shillings and sixpence, and two shillings and eightpence. 
 
 II. That such stamps shall be affixed by the parties 
 requiring to use the same on the vellum, parchment, or 
 paper on which the proceeding in respect whereof such 
 stamps may be required is written, printed, or engrossed, 
 or which may be otherwise used in reference to such 
 proceeding. 
 
 III. That every officer of the Court, of Chancery who 
 shall receive any document to which a stamp shall be so 
 affixed, shall immediately upon the receipt thereof obli- 
 terate or deface such stamp, by impressing thereon a seal 
 to be provided for that purpose, but so as not to prevent 
 the amount of the stamp from being ascertainedj and no 
 such document shall be filed or delivered out until the 
 stamp thereon shall be obliterated or defaced as aforesaid. 
 
 (Signed) St. Leonards, C. 
 
 k2 
 
132 
 
 OENERAL ORDERS. 
 
 ORDER OF COURT. 
 
 Saturday, the Ath day of December 1852. 
 
 The Right Honourable Edward Burtenshaw, Lord St. 
 Leonards, Lord High Chancellor of Great Britain, doth 
 hereby, in pursuance of an act of Parliament passed in the 
 fifteenth and sixteenth years of the reign of her present 
 Majesty, intituled "An Act for the . Relief of the Suitors 
 of the High Court of Chancery," and in pursuance and 
 execution of all other powers enabling him in that behalf, 
 order and direct as follows : — 
 
 L When no certificate of the taxation of a bill of costs 
 shall be required, the ad valorem duty directed by the 
 Order of the 2oth day of October to be levied by stamps 
 on the Master's certificate shall nevertheless be due, and 
 shall be payable on the amount of the bill as taxed, or on 
 the amount of such part thereof as may have been taxed ; 
 and the solicitor is in such case to cause the proper stamp 
 (the amount thereof to be fixed by the Master) to be 
 impressed on or annexed to the bill of costs. 
 
 II, The fees hereunder specified shall hereafter be col- 
 lected, not in money, but by means of stamps denoting 
 the amount of such fees, stamped or affixed, at the expense 
 of the parties liable to pay the fees, on or to the vellum, 
 parchment, or paper on which the proceedings in respect 
 whereof stich fees are payable are written or printed, or 
 which may be otherwise used in reference to such pro- 
 ceedings. 
 
GENERAL ORDERS. 133 
 
 }st. In the Registrar's Office. 
 
 £ *. d. 
 For orders made by the Judges in chambers, drawn 
 up by the Registrar, the like fees as by the 
 Order of the 23rd October 1852, are directed 
 to be taken by the chief clerks to the Judges 
 for orders drawn up by such chief clerks. 
 
 2nd. In the Record and Writ Clerks' Office. 
 
 For amending every record of any bill - 10 
 
 For amending every office copy thereof - 5 
 
 Copies of documents left as exhibits, per folio 4 
 
 (Signed) St. Leonards, C. 
 
134 GENERAL ORDERS. 
 
 ORDER OF COURT. 
 
 Thursday, \%th day of December 1852. 
 
 The Right Honourable Edward Burtpnshaw, Lord St. 
 Leonards, Lord High Chancellor of Great Britain, doth 
 hereby, in pursuance of an act of Parliament passed in the 
 fifteenth and sixteenth years of the reign of her present 
 Majesty, intituled " An Act to Abolish the Ofliice of 
 Master in Ordinary of the High Court of Chancery, and 
 to make provision for the more speedy and efficient de- 
 spatch of Business in the said Court," and in pursuance 
 and execution of all other powers enabling him in that 
 behalf, Ordfer and direct as follows: — 
 
 I. The business to be referred to the Conveyancing 
 Counsel nominated by the Lord Chancellor, under the 
 15 & 16 Vict. c. 80, s. 41, is to be distributed among such 
 counsel in rotation by the first clerk to the registrars for 
 the time being, and during his occasional or necessary 
 absence by the second clerk to the registrars for the time 
 being, and during the occasional or necessary absence of 
 both such clerks, then by such one of the other clerks to 
 registrars as the first registrar for the time being may 
 nominate for that purpose. 
 
 II. The clerk making such distribution as aforesaid, is 
 to be responsible that the business is distributed according 
 to regular and just rotation, and in such manner as to 
 keep secret from all persons the rota or succession of 
 conveyancing counsel to whom such business is referred; 
 and it shall be his duty to keep a record of such re- 
 ferences, with proper indexes, and to enter therein all such 
 references. 
 
GENGRAT. ORDERS. 135 
 
 III. When the Court, or a Judge sitting at chambers, 
 shall direct any business to be referred to any such con- 
 veyancing counsel, a short memorandum or minute of such 
 direction is to be prepared and signed by the registrar, if 
 the same shall have been given in Court, or by the Judge's 
 chief clerk if given in chambers, and the party prosecuting 
 such direction, or his solicitor, is to take such memorandum 
 or minute to the registrar's clerk, whose duty it shall be to 
 make such distribution as aforesaid ; and such clerk is to 
 add at the foot thereof a note specifying the name of the 
 conveyancing counsel in rotation, to whom such business 
 is to be referred, and such memorandum or minute is to be 
 left by the party prosecuting such direction, or his solicitor, 
 with such conveyancing counsel, and shall be a sufficient 
 authority for him to proceed with the business so referred. 
 
 IV. In case the conveyancing counsel in rotation shall 
 from illness or from any other cause be unable or decline 
 to accept any such reference, the same shall be offered 
 to the other conveyancing counsel appointed as aforesaid 
 successively, according to their seniority at the Bar, until 
 some one of them shall accept the same. 
 
 V. The preceding orders are not to interfere with the 
 power of the Court, or of the Judge sitting at chambers, to 
 direct or transfer a reference to any one in particular of the 
 said conveyancing counsel, where the circumstances of the 
 case may, in his opinion, render it expedient. 
 
 St. Leonards, C. 
 
136 GENERAL ORDERS. 
 
 ORDER OF COURT. 
 
 Friday, the 24th day of December 1852. 
 
 The Right Honourable Edward Burtenshaw, Lord St. 
 Leonards, Lord High Chancellor of Great Britain, doth 
 hereby order and direct in manner following, that is to 
 say:— 
 
 I. When any of the Masters in Ordinary shall request 
 the opinion of any of the conveyancing counsel, nominated 
 by the Lord Chancellor under the 15 & 16 Vict. c. 80, 
 s. 41, to be taken upon any matter depending before such 
 Master, such business is to be laid before the conveyancing 
 counsel in rotation, to be ascertained in the manner pre- 
 scribed by the General Orders of the I6th day of December 
 1852; and a memorandum or minute of every such request 
 is to be prepared by the Master's chief clerk, and signed by 
 him, and such memorandum or minute, when marked with 
 the name of the conveyancing counsel in rotation, shall be 
 a suflBcient authority for such counsel to proceed with such 
 business ; and if the conveyancing counsel in rotation shall 
 be unable or decline to proceed therewith, the same shall 
 be offered to the other conveyancing counsel, nominated as 
 aforesaid, successively, according to their seniority at the 
 Bar,'until sonie one of them shall accept the same. 
 
 II. Where, under a decree or order of the Court, whether 
 already made or hereafter to be made, any estate or interest 
 shall be put up for sale with the approbation of one of the 
 Masters in Ordinary, an abstract of the title to such estate 
 or interest is, upon the request of the Master, to be laid 
 before the conveyancing counsel in rotation, for the opinion 
 of such counsel thereon, to the intent that the said Master 
 may be the better enabled to give such directions as may 
 be necessary respecting the conditions of sale of such estate 
 or interest. 
 
 III. Notwithstanding the preceding Orders, the Master 
 is to be at liberty to request the opinion of any one in 
 particular of the said conveyancing counsel to be taken 
 upon any matter before such Master, where the circum- 
 stances of the case may render it expedient to do so. 
 
 (Signed) St. Leonards, C. 
 
GENERAL ORDERS. 1,37 
 
 ORDER OF COURT. 
 
 Monday, the Z\st day of January 1853. 
 
 I, The Right Honourable Robert Monsey Lord Cran- 
 worth, Lord High Chancellor of Great Britain; do hereby 
 order and direct in manner following, that is to say : — 
 
 That the registrar, in drawing np any decree or order 
 whereby the Accountant General shall be directed to pay 
 or transfer any fund, or part of any fund, in respect of 
 which any duty shall be payable to the revenue under 
 the acts relating to legacy duty, shall, unless such decree or 
 order expressly provide for the payment of the duty, direct 
 the Accountant General to have regard to the circumstance 
 that such duty is payable; and where, by any decree or 
 order, any carrying over to a separate account of any fund 
 in respect of which any such duty may be chargeable shall 
 be directed, the registrar shall add the words "subject to 
 legacy duty," to the title of the account. And in order 
 the better to provide security against the payment or 
 transfer by the Accountant General of any fund chargeable 
 with any such duty without the duty being first paid, the 
 Accountant General is, on receiving notice from the proper 
 officer that the duty is pajable, to cause a memorandum to 
 be made in his books in conformity with such notice. And 
 the Accountant General, before executing any decree or 
 order directing the payment or transfer of any fund or part 
 of any fund in respect of which any such duty shall be 
 payable, shall require the production of the official receipt 
 for the duty, or a certificate from the proper officer of the 
 payment of the duty chargeable in respect of any such fund 
 or any portion thereof respectively by any such decree or 
 order directed to be ,paid or transferred. And I do further 
 order and direct that where, in making any decree or order 
 express provision for the payment of any such duty shall be 
 ititended to be made, such duty shall, by such decree or 
 order, be directed to be paid to the Receiver General of 
 Inland Revenue for the time being, or his official assistant 
 duly constituted, to be named in the order. 
 
 (Signed) Cran worth, C. 
 
.138 GKXERAl. ORDERS. 
 
 ORDER OF COURT. 
 
 Friday, the Mh day of March 1853. 
 
 The Right Honourable Robert Mongey Lord Cranworth, 
 Lord High Chancellor of Great Britaiuj by and with the 
 advice and assistance of the Right Honourable Sir John 
 Romilly, Master of the Rolls, the Honourable the Vice 
 Chancellor Sir Richard Torin Kindersley, the Honourable 
 the Vice Chancellor Sir John Stuart, and the Honourable 
 the Vice Chancellor Sir William Page Wood, doth hereby, 
 in pursuance of the act of Piarliament made and passed in 
 the Idthadd 16th yearsof the. reign of her present Majesty,' 
 intituled "An Act to abolish the OflSce of Master in Orcu- 
 nary of the High Court of Chancery, and to make Provision 
 for the more speedy Despatch of Business in the said 
 Court," and in pursuance and execution of all other powers 
 enabling him in that behalf, order and direct: — 
 
 That when any cause shall, at the original or any sub- 
 sequent hearing thereof, have been adjourned for further 
 consideration, such cause may, after the expiration of 
 eight days, and within fourteen days from the filing of the 
 certificate or report of the chief clerk of the judge "to 
 whose Court the cause is attached, be set down by.) the 
 registrar in the cause-book for further consideration, on 
 the written request of the solicitor for the plaintiff or 
 party having the conduct of the cause, and after the expi- 
 ration of such fourteen days the cause may be set down 
 by the registrar on the written request of the solicitor for 
 the plaintiff, or for any other party ; and the request to 
 set down the cause may be in the form or to the effect set 
 forth in the schedule hereto marked (A); but the cause, 
 when so set down, shall not be put into the paper for 
 further consideration until after the expiration of ten days 
 
GENERAL ORDERS. 
 
 from the day on which the same was so set down, and 
 shall be marked in the cause-book accordingly. And 
 notice thereof shall be given to the other parties in the 
 cause at least si* days before the day for which, the same 
 may be so marked for further consideration ; and such 
 notice may be in the form or to . the effect set forth in the 
 schedule .hereto marked (B). 
 
 Cranvorth, C. 
 John Romilt.y, M. R. 
 
 RiCHD. T. KiNDERSLEY, V, C. 
 
 JoHlJ Stuart. 
 William Page Wood. 
 
 130 
 
 In Chancery. 
 
 SCHEDULE (A). 
 A. V. B. 
 
 I request that this cause, the further consideration 
 whereof was adjourned by the order of the 
 day of , may be set down for further con- 
 
 sideration before his Honor the 
 
 Dated, &c. 
 
 C. D. 
 
 Solicitor fof (the plaintiff). 
 
 In Chancery. 
 
 SCHEDULE (B). 
 
 A. V. B. 
 
 Take notice that this cause, the further consideration 
 whereof was adjourned by the order of the 
 day of , was, on the day of , 
 
 set down for further consideration before his Honor the 
 for the day of 
 
 Yours, &c., 
 
 C. D. 
 
 Solicitor for (the ])laintiff). 
 To Mr. 
 
 Solicitor for (the defendant). 
 
^■^0 GENERAL ORDERS. 
 
 ORDER OF COURT. 
 
 Tuesday, the \1th day of April 1853. 
 
 The Right Honourable Robert Monsey Lord Cranworth, 
 Lord High Chancellor of Great Britain, by and with the 
 advice and assistance of the Right Honourable Sir John 
 Romilly, Master of the Rolls, the Flonourable the Vice 
 Chancellor Sir Richard Torin Kindersley, the Honourable 
 the Vice Chancellor Sir John Stuart, and the Honourable 
 the Vice Chancellor Sir William Page Wood, doth hereby, 
 in pursuance of the act of Parliament made and passed in 
 the 3rd and 4th years of the reign of his late Majesty king 
 William the Fourth, intituled "An Act for the regulation 
 of the Proceedings and Practice of certain Offices of the 
 High Court of Chancery in England," and in pursuance 
 and execution of all other powers enabling him in that 
 behalf, order and direct: — 
 
 That, notwithstanding the 27 th of the General Orders 
 of the 21st December 1833, it shall not hereafter be neces- 
 sary for the registrar, in drawing up any decree or order, 
 to recite any previous decree or order in the cause or 
 matter, or any report, certificate, affidavit, or other docu- 
 ment that has been (or before the decree or order is 
 completed shall be) filed or recorded in the Court; but 
 it shall be sufficient to refer thereto, save only in matters 
 of contempt, or where the order varies from some general 
 rule, and in such other cases as the Court shall direct, or 
 the registrar shall, in his discretion, see fit, the registrar 
 shall make such short recitals as may be necessary to 
 show the grounds on which the decree or order is 
 granted. 
 
 (Signed) Cranworth, C. 
 
 John Romilly, M. R. 
 
 RiCHD. T. Kindersley, V. C, 
 
 John Stuart, V. C. 
 
 William Page Wood, V. C. 
 
GENERAI- ORDERS. 141 
 
 ORDER OF COURT. 
 
 Tuesday, the 26fA day of July 1853. 
 
 The Right Honourable Robert Monsey Lord Cranworth, 
 Lord High Chancellor of Great Britain, by and with the 
 advice and assistance of the Right Honourable Sir John 
 Romilly, Master of the Rolls, the Right Honourable the 
 Lord Justice Sir James Lewis Knight Bruce, the Right 
 Honourable the Lord Justice Sir George James Turner, 
 the Honourable the Vice Chancellor Sir Richard Torin 
 Kindersley, the Honourable the Vice Chancellor Sir John 
 Stuart, and the Honourable the Vice Chancellor Sir 
 William Page Wood, doth hereby, in pursuance of an act 
 of Parliament passed in the 15 th and 16 th years of her 
 present Majesty, intituled " An Act to amend the Practice 
 and Course of Proceeding in the High Court of Chancery," 
 and in pursuance and execution of all other powers enabling 
 him in that behalf, order and direct : — 
 
 That in the interval between the close of the sittings 
 after any term and the commencement of the sittings 
 before or at the beginning of the next ensuing term, any 
 judge c)f the Court may sign and adopt any certificate 
 made by the chief clerk of any other judge, and orders 
 made by any judge of the Court may be prosecuted at 
 the chambers of any other judge by his permission ; and 
 in case the prosecution thereof shall not be completed 
 during such interval, the prosecution may be continued 
 at the chambers of the same judge, if and so far as he 
 shall think fit. In all cases in which any judge signs 
 and adopts a certificate made in pursuance of an order 
 made by any other judge, it is to be expressed that he 
 
142 GENERAL, ORDERS. 
 
 does SO for such other judge, and such certificate shall 
 in all future proceedings be deemed to be signed and 
 adopted by the judge for whom it is signed and adopted, 
 save that no application to discharge or vary such certi- 
 ficate is to be made to the judge for whom the same is 
 signed and adopted, without the leave of the judge by 
 whom it has been signed and adopted ; and the judge by 
 whom it has been signed and adopted is to have the same 
 power to discbarge or vary the certificate as he would have 
 had if it had been made in pursuance of an order made by 
 himself. 
 
 (Signed) Cranworth, C. 
 
 John Romilly, M. R, 
 
 J. L. Knight Bruce, L. J. 
 
 G. J. Turner, L. J. 
 
 RiCHD. T. KiNDERSLEY, V. C. 
 
 John Stuart, V. C. 
 W. P. Wood, V. C. 
 
GENERAL ORDERS. 143 
 
 ORDER OF COURT. 
 
 Tuesday, the \Qth day of May, in the \(>th Year of the Reign 
 of her Majesty Queen Victoria 1853. 
 
 The Right Honourable Robert Monsey Lord Cranworth, 
 Lord High Chancellor of Great Britain, doth hereby order 
 and direct in manner following, that is to say : — 
 
 That, in every case in which any person is entitled to or 
 in any manner interested in any Old South Sea Annuities, 
 New South Sea Annuities, Bank Annuities 1726, or three 
 pounds per cent Annuities 1751, standing in the name of 
 the Accountant General of this Court, in trust in any cause 
 or matter, whether such person is so entitled beneficially 
 or only as executor, administrator, trustee, guardian, com- 
 mittee, or otherwise, such person may apply to the Master 
 of the Rolls or to any of the Vice Chancellors in chambers 
 by summons, in the cause or matter in trust in which such 
 annuities may be standing, praying that the said Accountant 
 General may be authorized and directed to receive the 
 capital sums, which will, under the provisions of an act 
 passed in the present session of Parliament, intituled " An 
 Act for redeeming or comrnuting the Annuity payable 
 to the South Sea Company, and certain Annuities of 
 Three pounds per cent, per annum, and for creating 
 new annuities of three pounds ten shillings per cent, 
 per annum and two pounds ten shillings per cent, per 
 annum, and issuing Exchequer Bonds," on the 5th of 
 January 1854, and the 5th April 1854, respectively be- 
 come payable in respect of such annuities, or that the 
 said Accountant General inay be directed to signify, on 
 or before the 3rd day of June next to the Governor and 
 
144 . GENEUAT^ ORDERS. 
 
 (!!ompany of the Bank of England or to the South Sea 
 Company, as the case may be, on behalf of all persons in- 
 terested in such annuities, his assent to accept and receive, 
 in lieu of such Old South Sea Annuities, New South Sea 
 Annuities, Bank Annuities 1726, or three pounds per cent. 
 Annuities 1751, respectively, a competent portion of new 
 three pounds ten shillings annuities or exchequer bonds, 
 according to the provisions of the said act ; and the Master 
 of tlie Rolls or Vice Chancellors, as the case may be, 
 may, on any such application, and on the attendance of 
 such parties, if any, and on such evidence, if any, as he 
 may think fit and require, authorize and direct the said 
 Accountant General to receive such capital sums, or to 
 signify such assent, as the case may be, in case the said 
 Master of the Rolls or Vice Chancellors shall be satisfied 
 that such authority and directions may be given, with a 
 due regard to the rights of all persons interested in the said 
 funds. 
 
 And it is hereby further ordered that the Accountant 
 General, in all cases in which no notice shall, on or before 
 the 31st day of May 1853, have been given to him of an 
 order made by the Master of the Rolls, or one of the 
 Vice Chancellors authorizing and directing him to receive 
 such capital sums or to signify such assent as aforesaid, as to 
 any portion of the said annuities so standing in his name 
 shall, on or before the 3rd day of June next signify to the 
 Governor and Company of the Bank of England, or to the 
 South Sea Company as the case may be, his assent to accept 
 and receive in lieu of the Old South Sea Annuities, New 
 South Sea Annuities, Bank Annuities 1726, and three 
 pounds per cent. Annuities 1751, standing in his name, or 
 of such part thereof as to which no such notice as afore- 
 said shall have been given to him, a competent sum of two 
 pounds ten shillings per cent. Annuities, according to the 
 provisions of the said act. And the Accountant General 
 shall in such case carry such two pounds ten shillings per 
 cent. Annuities to the credit of the same causes or matters 
 respectively in respect whereof such assent shall so have 
 been signified by him as aforesaid, and the same shall be 
 held upon the same trusts and shall be subject to the same 
 • orders as the annuities in respect of which the same shall 
 so be received. 
 
 (Signed) Cranworth, C. 
 
GENERAL ORDEKS. 145 
 
 ORDER OF COURT. 
 
 9th of November 1852. 
 
 In pursuance of an act of Parliament passed in the six- Five far- 
 teenth year of the reign of her present Majesty intituled '•"'"gs per 
 "An A'ct for the R«lief of Suitors' of the High Court of ^°^^l°^^ 
 Chancery," I do order that there shall be paid for entering clerks of 
 and examining the decrees and orders and other documents entries for 
 of the said Court, under the direction of the clerks of decrees^ 
 entries, and for making, writing, counting and examining &c. 
 all office and other copies of official documents and records, 
 of the Court, under the control of the Master of the 
 reports, the sum of five farthings per folio of ninety words, 
 and the sunv of one farthing per folio for examining and 
 counting those copies that are brought by the solicitors and 
 suitors of the Court to be marked as office copies. And I 
 do further order, that the said decrees and orders and other 
 documents, shall be entered, under the direction of the 
 clerks of entries, in the books kept by them for that pur- 
 pose, without abbreviation, and in a clear and legible hand ; 
 and that all office copies shall be made and written without 
 abbreviation, and in a clear and legible hand ; the number of 
 folios actually madej copied, counted and examined, to be 
 verified by the certificate of the clerk of entries and the 
 Master of reports respectively. And I do further order 
 that it be referred to the Master to whom the matter of the 
 suitors shall, from time to time, stand referred, to take 
 account of what shall be due, from time to time, for such 
 writing, entering, counting and examining actually^one, 
 under the control of the clerks of entries and the Master of 
 reports respectively, at the rate aforesaid ; and that the said 
 
 L 
 
146 
 
 GENERAL, ORDERS. 
 
 Master to whom the matter of the suitors shall, from time 
 to time, stand referred, do, from time to time, certify the 
 sum due in respect thereof, and to whom the same ought 
 to be paid, and that the amount so certified be paid ac- 
 cordingly, by the governor and company of the Bank of 
 England, out of any cash which may at that time be 
 remaining in the bank, to the credit of the account, inti- 
 tuled "The Suitors' Fee Fund Account." And for the 
 purposes aforesaid the Accountant General of the said 
 Court shall draw on the Bank, according to the form pre- 
 scribed by the act of Parliament and the General Rules and 
 Orders of the said Court in,, that case made and provided. 
 And let this order be drawn up and entered by ihe 
 registrar of the said Court. 
 
 (Signed) St. Leonabds, C. 
 
GENERAL ORDERS. 
 
 147 
 
 ORDER OF COURT. 
 
 27th of 'November 1852. 
 
 In pursuance of an act of Parliament passed in the sixth One far- 
 year of the reign of her present Majesty intituled " An Act thing a 
 for Abolishing certain Offices of the High Court of Chan- aiiiwe°dfor 
 eery in England," I do order that from and after the examining 
 28th day of October 1852, there shall be allowed and paid «op'es 
 the sum of one farthing per folio for examining those i^°ofhe re- 
 copies of affidavits, and other documents that are brought cord and 
 by the solicitors and suitors of the Court, to be marked as writ office 
 office copies in the office of records and writs. And let ^„^g^ g^ 
 this order be drawn up and entered by the registrar of the copies. 
 said Court. 
 
 (Signed) John Romilly, M. R. 
 
 l2 
 
148 
 
 GENERAL ORDERS'. 
 
 ORDER OF COURT. 
 
 Thursday, the 2nd day of June 1853. 
 
 I, the Right Honourable Robert Monsey Lord Cran- 
 worth, Lord High Chancellor of Great Britain, do hereby 
 order and direct in manner following, that is to say: — 
 
 That so much of the Order of Court of the lOth day of 
 May 1853 be revoked as directs, that the Accountant 
 General of this Court in all cases in which no notice should 
 on or before the 3Ist day of May 1853, have been given 
 to him of an order made by the Master of the Rolls or one 
 of the Vice Chancellors, authorizing and directing him to 
 receive such capital sums as thereinbefore referred to, or to 
 signify such assent as therein aforesaid, as to any portion of 
 the annuities thereinbefore referred to as standing in his 
 name, should on or before the 3rd day of June then next, 
 signify to the governor and company of the Bank of Eng- 
 land, or to the South Sea Company, as the case might be, 
 his assent to accept and receive in lieu of the Old South 
 Sea Annuities, New South Sea Annuities, Bank Annuities 
 1726, and Three pounds per cent. Annuities 1751, stand- 
 ing in his name, or of such part thereof as to which no such 
 notice as therein aforesaid should have been given to him, 
 a competent sum of two pounds ten shillings per cent. 
 Annuities according to the provisions of the act thereinbe- 
 fore mentioned ; and that the Accountant General should 
 in such case carry such two pounds ten shillings per cent. 
 Annuities to the credit of the same causes or matters respec- 
 tively in respect whereof such assent should so have been 
 signified by him as therein aforesaid; and that the same 
 should be held upon the same trusts, and should be subject 
 to the same orders as the annuities in respect of which the 
 same should so be I'eccived. 
 
 (Signed) Cranworth, C. 
 
GENERAL ORDEIliS. 140 
 
 ORDER OF COURT. 
 
 Friday, the 'Srd day of June 1853. 
 
 The Right Honourable Robert Monsey Lord Cranworth, 
 Lord High Chancellor of Great liritaiii, doth hereby order 
 and direct in manner following, that is to say: — 
 
 That in all cases in which any order directing the in- 
 vestment from time to time of any interest or dividends 
 accruing upon any stocks or securities standing in the 
 name of the Accountant General to the credit of any 
 cause, matter, or account, or upon any stocks or securities 
 which may be ordered to be transferred into the name of 
 the Accountant General, or to be carried over with his 
 privity from one account to another, or upon any stocks or 
 securities, which may be ordered to be purchased with any 
 cash in Court, or with any cash to be paid into Court with 
 the like privity, shall be brought to the Accountant General 
 for the purpose of having such direction for investment car- 
 ried into etfect: The said Accountant General may from 
 time to time, until he shall receive notice of an order to the 
 contrary, without any further request invest the interest 
 and dividends so directed to be invested, together with all 
 accumulations of interest and dividends thereon, as soon as 
 conveniently may be after they shall accrue due and have 
 been received, in the purchase of the particular description' 
 of stock or security named in such order, and place such 
 stocks or securities, when purchased, to the credit of the 
 cause, matter, or account respectively, as may be directed 
 by such order. 
 
 (Signed) Cranw^outh, C. 
 
1 50 NOTICES. 
 
 NOTICES (a). 
 
 Notice respecting Claims, 6th of June 1850. 
 
 Every claim filed under the Orders of the Court of the 
 22nd of April 1850, is to be set down for hearing with the 
 registrar, which will be done (without fee) as soon as the 
 writ of summons has been served on the defendant, or (if 
 more than one) on all the defendants, upon production to 
 the registrar by the plaintiff or his solicitor, or a certificate 
 from the clerk of records and writs of the filing of such 
 claim. 
 
 Every claim so set down will be heard in rotation in the 
 respective Courts of the Master of the Rolls and Vice 
 Chancellors on such days as thej' shall respectively appoint. 
 
 All motions arising out of claims filed are to be made on 
 the general seal and motion days. 
 
 Notice. Wednesday, 6th of November 1850. 
 6th Nov. 1850, V. C. Knight Bruce. 
 
 All claims filed under the Orders of the Court of the 
 22nd of April 1850, are to be set down in the registrar's 
 book in the same list with the causes. 
 
 They may be so set down by either party for the day 
 appointed for showing cause, and are to be beard indiscri- 
 minately with the causes. 
 
 Bnt such of them as the parties may desire to have 
 heard in the same manner as short causes, are to be so 
 marked, upon production to the registrar of a similar certi- 
 ficate as is required in the case of short causes, and they 
 will be heard as such on the days appointed for hearing 
 short causes. 
 
 (a) N.B. These notices are varied from time to time, but it is 
 believed that these are the latest issued. 
 
NOTICES. 15^ 
 
 Notice. Saturday, l^th of November 1850. 
 
 Rolls Court. 
 
 The Master of the Rolls directs, that hereafter all claims 
 filed in this Court be set down in rotation with the causes, 
 and that such only as can be certified to be short will be 
 taken every Saturday with the short causes and petitions. 
 
 Notice. Thursday, 7th of November 1850. 
 
 7th Nov. 1850, V. C. Rolfe. 
 
 All claims filed under the orders of the Court of the 
 22nd of April, 1850, are to be set down in the registrar's 
 book in the same list with the causes. 
 , They may be so set down by either party for the day 
 appointed for showing cause, and are to be heard indiscri- 
 minately with the causes. 
 
 But such of them as the parties may desire to have heard 
 in the same manner as short causes, are to be so marked 
 upon production to the registrar of a similar certificate as 
 is required in the case of short causes, and they will be 
 heard as such on the days appointed for hearing short 
 causes. 
 
152 
 
 FORMS. 
 
 APPENDIX OF FORMS. 
 
 Form of indorsement on bill of complaint. Form of indorse- 
 ment on claim. Form of bill. Form of interrogatories. 
 Form of answer. Form of administration summons. Form 
 of order directing accounts and enquiries. Form- of re- 
 plication. Affidavit of service of bill or claim or of an 
 amended bill or amended claim on defendant ivhere he 
 has not appeared to the original bill or claim. Affidavit 
 of service of an amended bill or amended claim on the 
 
 ' defendant or his solicitor where he has appeared to the 
 original bill. Affidavit of delivery of interrogatories for 
 the examination of plaintiff or defendant. Affidavit of 
 service of summons for administration of real or personal 
 estate. Affidavit of service of summons originating pro- 
 ceedings at judges' chambers, not being an administration 
 summons. Affidavit of service of summons for proceed- 
 ings at judges' chambers in a suit. Ordinary form of 
 summons. Form of summons by chief clerk. Form of 
 order. Form of advertisement. Form of cert^cate of 
 chief clerk. Judge's summons for production of docu- 
 ments. Order for production of documents at the record 
 and writ office. Order for production of documents at 
 solicitors' office. Form of affidavit as to production of 
 documents. Form of order to appoint a receiver under 
 an order of the Court directing a proper person to be 
 appointed. Form of certificate under an order naming 
 a person to be receiver. Form of a receiver's recogni- 
 zance. Form of summons by chief clerk for witness or 
 party to attend to be examined. Form of authority by a 
 next friend to institute a suit. Form of request to set 
 down cause for further consideration. Form of notice of 
 cause being set down for further consideration. Form of 
 affidavit of service of decree or notice of decree. Form 
 of memorandum of service of decree. Form of affidavit of 
 service of notice, of cause being set down for further con- 
 sideration. Chief clerk's certificate of amount due on 
 mortgage. Certificate of good title shewn, and when. 
 Form of affidavit verifying engrossment of conveyance as 
 
FORMS. 153 
 
 settled by conveyancing counsel. Memorandum of ap- 
 proval of deed. Form of order for administering the 
 estate of a married woman under a testamentary power 
 of appointment. Form of chief clerk's certificate of the 
 result of sale. Form of special certificate of chief clerk 
 where cause adjourned to Court for argument after exa- 
 mination of witnesses, and no report made on the evidence. 
 Form of order by consent on summons for prosecution of 
 decree before judge at chambers instead of Master to 
 whom cause stood referred. Form of decree on further 
 directions on chief clerk'^ certificate. Form of order on 
 petition. Forms of clairris. Orders on claims. 
 
 Form of Indorsement on Bill of Complaint. 
 Victoria R. 
 To the within-named defendant C. D., greeting. 
 
 We command you [" and every of you," where there is 
 more than one defendant'], that witfiin eight days after ser- 
 vice 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 A. B., and that you observe what our said 
 Court shall direct. Witness ourself at Westminster, the 
 day of in the year of our reign. 
 
 Note. — If you fail to comply with the above directions 
 you will be liable to be arrested and impri- 
 soned. 
 Appearances are to be entered at the Record 
 and Writ (clerks' OfEce, Chancery Lane, 
 London. 
 
 Form of Indorsement on Claim. 
 
 Victoria R. 
 To the within-named defendant C. D., greeting. 
 
 We command you [" and every of you," where, there is 
 more than one defendant^, 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 claim of the within-named 
 
'■^^ FORM$. 
 
 A. B. ; and further, that on the fourteenth day after the 
 service hereof, or on the seal or motion day then next fol- 
 lowing, you do personally or by counsel appear in the 
 Court of our Lord Chancellor before the Vice Chancellor 
 [naming hiTn] [or, it} the Court of our Master of the Rolls], 
 at ten of the clock in the forenoon, and then and there 
 show cause if you can why the said A. B. should not have 
 such relief against you as is within claimed, or why such 
 order as shall be just with reference to the claim should 
 not be made. Witness ourself at Westminster the 
 day of in the - year of our reign. 
 
 Note. — Appearances are to be entered at the Record 
 and Writ Clerks' Office, Chancery Lane, 
 London ; and if you neglect to enter your 
 appearance, and either personally or by your 
 - coiMisel to appear in the High CoOrt of 
 Chancery at the place and on the day and 
 hour above mentioned, you will be subject 
 to such order as the Court may think fit to 
 make against you in your absence for pay- 
 ment or satisfaction of the said claim, or as 
 the nature and circumstances of the case 
 hi ay require. 
 
 Form of Bill (a). 
 In Chancery. 
 
 John Lee - _ . Plaintiff, . 
 
 James Styles "i 
 
 and r ' " Defendants. 
 
 Henry Jones ^ 
 
 Bill of Complaint. 
 
 To the Right Honourable Edward Burtenshaw, Baron 
 
 St. Leonairds, of Slaughaih, in the county of SussexJ 
 
 Lord High Chancellor of Great Britain, 
 
 Humbly complaining, sheweth unto his Lordship, John 
 
 Lee, of Bedford Square, in the county of Middlesex, Esq., 
 
 the above-named plaintiff; as follows; — 
 
 1, The defendant James Styles, being seised in fee 
 simple of a farfn called Blackacre, in the parish of A., in 
 
 (a) Schedule (B) to General Orders of 7tli of August 1852, : 
 
FORMS. 
 
 the county of B., witlf the appurtenances, did, by an inden- 
 ture dated the first of May, one thousand eight hundred 
 and fifty, and made between the defendant James Styles of 
 the one part, and the plaintiff of the other part, grant and 
 convey the said farm with the appurtenances unto, and to 
 the use of, the plaintiflF, his heirs and assigns, subject to a 
 proviso for redemption thereof, in case the defendant 
 James Styles, his heirs, executors, administrators or assigns, 
 should on the first of May, one thousand eight hundred 
 and fifty-one, pay to the plaintiff, his executors, adminis- 
 trators, or assigns, the sum of five thousand pounds, with 
 interest tTiereon, at the rate of five pounds per centum per 
 annum, as by the said indenture will appear. 
 
 2. The whole of the said sum of five thousand pounds, 
 together with interest thereon at the rate aforesaid, is now 
 due to the plaintiff. 
 
 3. The defendant, Henry Jones, claims to have some 
 charge upon the farm and premises comprised in the said 
 indenture of mortgage of the first of May, one thousand 
 eight hundred and fifty, which charge is subsequent to the 
 plaintifi's said mortgage. 
 
 4. The plaintiff^ has frequently applied to the defendants, 
 James Styles and Henry Jones, and required them either 
 to pay the said debt, or else to release the equity of re- 
 demption of the premises, but they have refused so to do. 
 
 5. The defendants, James Styles and Henry Jones, pre- 
 tend that there are some other mortgages, charges or 
 incumbrances affecting the premises, but they refuse to 
 discover the particulars thereof. 
 
 6. There are divers valuable oak, elm, and other timber, 
 and timber-like trees growing and standing on the farm 
 and lands comprised in the said indenture of mortgage of 
 the first of May, one thousand eight hundred and fifty, 
 which trees and timber are a material part of the plaintiff's 
 said security; and if the same or any of them were felled 
 and taken away, the said mortgaged premises would be 
 an insufficient security to the plaintiff for the money due 
 thereon. 
 
 7. The defendant James Styles, who is in possession of 
 the said farm, has marked for felling a large quantity of 
 the said oak and elm-trees and other timber, and he has, 
 by hand bills, published on the second December instant, 
 announced the same for sale, and he threatens and intend^ 
 forthwith to cut down and dispose of a considerable 
 quantity of the said trees and timber on the said farm. 
 
 155 
 
I.'i6, FORMS. 
 
 Prayer. 
 The plaintiflf' prays as follows :-- 
 
 1. That an account may be taken of what is due for 
 
 principal and interest on the said mortgage. 
 
 2. That the defendants, James Styles and Henry 
 
 Jones, may be decreed to pay to the plaintiff the 
 amount which shall be so found due, together 
 with bis costs of this suit, by a short day to be 
 appointed for that purpose, or, in default thereof, 
 that the defendants James Styles and Henry 
 Jones, and all persons claitning under them, 
 may be absolutely foreclosed of all right and 
 equity of redemption in or to the said mortgaged 
 premises. 
 
 3. That the defendant James Styles may be restrained 
 
 by the injunction of this honourable Court from 
 felling, cutting, or disposing of any of the timber 
 or timber-like trees now standing or growing in 
 or upon the said farm and premises comprised in 
 the said indenture of mortgage, or any part 
 thereof. 
 
 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, 
 
 James Styles, 
 
 Henry Jones. Y. Y., 
 
 (name of county.) 
 Note. — This bill is filed by Messrs. A. B. and C. D., of 
 Lincoln's Inn, in the county of Middlesex, solicitors for 
 the above-named plaintiff. 
 
 Form of Interrogatories, (a) 
 In Chancery. 
 
 John Lee Plaintiff, 
 
 James Styles 'J 
 
 and > . . . . Defendants. 
 
 Henry Jones ) 
 Interrogatories for the examination of the above- 
 named defendants in answer to the plaintiff's bill of 
 complaint.' 
 
 (a) Schedule (C) to General Orders oi' 7lh. of August'1852. 
 
FORMS. 157 
 
 1. Does not the defendant Henry Jones claim to have 
 some charge upon the farm and premises comprised in the 
 inilentine of mortgage of the first of May, one thousand 
 eight hundred and fifty, in the plaintiff's bill mentioned? 
 
 2. What are the particulars of such charge, if any, the 
 date, nature and short effect of the security, and what is 
 due thereon ? 
 
 3. Are there or is there any other mortgages or mort- 
 gage, charges or charge, incumbrances or incumbrance, in 
 any and what manner affecting the aforesaid premises, or 
 any part thereof. 
 
 4. Set forth the particulars of such mortgages or mort- 
 gage, charges or charge, incumbrances or incumbrance; 
 the date, nature, and short effect of the security ; what is 
 now due thereon ; and who is or are entitled thereto 
 respectively ; and when and hy whom, and in what 
 manner, every such mortgage, charge, or incumbrance was 
 created. 
 
 The defendant James Styles is required to answer all 
 these interrogatories. 
 
 The defendant Henry Jones is required to answer the 
 inlerrogatories numbered 1 and 2, 
 
 Y. Y., 
 (name of counsel.) 
 
 Form of Answer {a) 
 In Chancery. 
 
 John Lee ... Plaintiff, 
 
 James Styles 1 
 
 and r " " Defendants. 
 
 Henry Jones J 
 
 The answer of James Stj'les, one of the above-named 
 defendants to the bill of complaint of the above- 
 named plaintiff. 
 In answer to the said bill, I, James Styles, say as 
 follows : — 
 
 1. I believe that the defendant, Henry Jones, does claim 
 to have a charge upon the farm and premises comprised 
 in the indenture and mortgage of the 1st of May, one 
 thousand eight hundred and fifty, in the plaintiff's- bill 
 mentioned. 
 
 2. Such charge was created by an indenture dated the 
 
 (a) Schedule (D) to General Orders of 7th of August 1852. 
 
158 
 
 FORMS. 
 
 Ist of November, one thousand eight hundred and fifty, 
 made between myself of the one part, and the said de- 
 fendant Henry Jones of the other part, whereby I granted 
 and conveyed the said farm and premises, subjetft to the 
 mortgage made by the said indenture of the 1st of May, 
 one thousand eight hundred and fifty, unto the defendant 
 Henry Jones for securing the sum of two thousand pounds 
 arid interest at the rate of five pounds per centum per 
 annum, and the amount due thereon is the said sum of two 
 thousand pounds with interest thereon, from the date of 
 such mortgage. 
 
 3. To the best of my knowledge, remembrance, and 
 belief there is not any other mortgage, charge, or incum- 
 brance affecting the aroresaid premises. 
 
 , ■ M. N. 
 (name of counsel.) 
 
 Form of Summons (a). 
 
 In Chancery; 
 
 In the matter of the estate of John Thomas, late of 
 the parish of A., in the county of B., deceased. 
 Joseph Wilson 
 against 
 William Jackson. 
 Upon the application of Joseph Wilson, of Russell Square, 
 in the county of Middlesex, Esq., who claims to be a cre- 
 ditor upon the estate of the above-named John Thomas, let 
 William Jackson, the executor of the said John Thomas, 
 attend at my chambers [in the Rolls Yard, Chancery Lane, 
 
 Middlesex], or at No. — , Square, Lincoln's Inn, 
 
 Middlesex] on the day of , at of 
 
 the clock in the afternoon, and show cause, if he can, why 
 an order for the administration of the personal estate of the 
 said John Thomas, by the High Court of Chancery, should 
 not be granted. 
 
 Dated day of 1852. 
 
 John Romilly, Master of the Rolls, or, 
 George J. Turner, Vice Chancellor, or, 
 Richard T. Kindersley, Vice Chancellor, or, 
 James Parker, Vice Chancellor. 
 
 (a) Schedule (E) to General Orders of 7th of August 1852. 
 
FORMS. 1S9 
 
 Note, — If the above-named William Jackson does not 
 attend either in person or by his solicitor, at the time and 
 place above mentioned, such order will be made in hjs 
 absence as the judge may think just and expedient. 
 
 This summons was taken out by A. and B., of Lincoln's . * ' 
 
 Inn, in the county of Middlesex, solicitors for the 
 above-named Joseph Wilson. 
 
 Form of Replication (a). 
 
 " Between A. B. - - Plaintiff, 
 
 and 
 «C. D., E. F., G. H., &c. - Defendants. 
 
 " The plaintiff in this cause hereby joins issue with the 
 defendant C. D." [all the defendants who have answered or 
 pleaded, or against whom a traversing note has been filed], 
 "and will hear the cause on bill and answer against the 
 defendant E. F." \all the defendants against whom the 
 cause is to be heard on bill and answer], " and on the order 
 to take the bill as confessed against the " defendant G. H." 
 as the case may be. 
 
 Affidavit of Service of Bill or Claim or of an Amended Bill 
 or Amended Claim on Defendant where he has not appeared 
 to the Original Bill or Claim. 
 
 In Chancery. 
 
 Between A. B. - - - Plaintiff, 
 
 and 
 C. D. and E. F. - Defendants. 
 
 I, M. N., of, &c., make oath and say 
 
 That I did on the day of 185 serve 
 
 the above named defendant C. D., with a printed- copy of 
 [«a bill of complaint" or "an amended bill of complaint," 
 " a claim," or " an amended claim,"] having an endorsement 
 thereon in the form prescribed by the statute in that case 
 
 (a) See 93rd General Order of the 8th of May 1845. 
 
160 FORMS. 
 
 made and provided (a) by delivering to and leaving with 
 the [if persoTially served, say " said defendant C. D. per- 
 sonally," or if not personally served, say " wife," " servant," 
 or other member of the defendant's family, as the case may be, 
 "of the said defendant C. D., at his dwelling-house, 
 situate,"] at in the county of such printed 
 
 copy, with such endorsement thereon as aforesaid, which 
 said printed copy appeared to me to have been stamped 
 with the stamp of the record and writ clerks' officei and 
 purported to be a copy of the ["bill of complaint," or 
 "amended bill of complaint," or "claim," or "amended 
 claim,"] in this cause filed in the said office on the 
 day of 1853. 
 
 Sworn at the Record and Writ Clerks' Office, 
 Chancery Lane, in the County of Middlesex, this 
 day of 1853. 
 
 Affidavit of Service of an Amended Bill or Amended Claim 
 on the Defendant or his Solicitor where he has appeared to 
 the Original Bill. 
 
 In Chancery. 
 
 Between A. B, ~ - - Plaintiff, 
 
 and 
 C. D. and E. F. - - Defendants. 
 
 I. M. N., of &c., make oath and say 
 
 That I did on the day of 1853, serve 
 
 [if the defendant has appeared in person, say " the above 
 named defendant C. D." if he has appeared by a solicitflr, 
 say " Mr. G. H., the solicitor of the above-named defend- 
 ant C. D.,"] with a printed copy of an ["amended bill of 
 complaint," or "an amended claim,"] having an endorse- 
 ment thereon in the form prescribed by the statute in that 
 case made and provided {b)by delivering to and leaving with 
 
 (a) If the deponent be not acquainted with the form of endorse- 
 ment prescribed by the schedule of the 15th and 16th Victoria, cap. 86, 
 insert, instead of " form prescribed by the statute in that case made 
 and provided," the words, "words and figures following," and copy the 
 endorsement on the bill or claim. 
 
 (4) See note to last form. 
 
FORMS. 161 
 
 the [toliere the defendant has appeared in person (if he has been 
 personally served), say "said defendant C. D. personally," 
 if not personally served, say " wife" " servant," or other mem- 
 ber of the family of the defendant, as the case may be, "of the 
 said defendant C. D., at his dwelling-house situate," or in 
 case he has given an address for service, say "at his address 
 for service." Where the defendant has appeared by a solicitor, 
 say "said Mr. G. H.," m- "clerk," or "servant of the said 
 Mr. G. H., at his place of business, situate, &c., " or if an 
 address for service has been given, say " at his address for 
 service"] at in th^ county of such printed 
 
 copy with such endorsement thereon, as aforesaid, which 
 said printed copy appeared to me to have been stamped 
 with the stamp of the record and writ clerks' office, and 
 purported to be a copy of the ["amended bill of com- 
 plaint," or " amended claim"] in this cause filed in the said 
 office on the day of 1853. 
 
 Sworn, &c. 
 
 Affidavit of Delivery of Interrogatories for the Examination 
 of Plaintiff or Defendant. 
 
 In Chancery. 
 
 Between A, B. and CD. - - Plaintiflfe, 
 
 and 
 E. F. and G. H. - - Defendants. 
 
 I, M. N., of, &c., make oath and say, 
 
 That I did on the day of 1853, deliver 
 
 to the above named "plaintiff A. B." or " defendant E. F." 
 or if the plaintiff sues by a solicitor, or the defendant has 
 appeared by a solicitor, say " Mr. K. L., the solicitor of the 
 above named plaintiff A. B.,"or "defendant E. F."] a copy 
 of certain interrogatories for the examination of the saicl 
 [plaintiff A. B." or "defendant E. F."] by leaving such 
 copy with [where the plaintiff sues in person or the d^endant 
 has either not appeared or has appeared in person and the 
 interrogatories have been delivered to him personally, say 
 " the said plaintiff A. B," or " defendant E. F. personally," 
 if not delivered to him personally, say "the wife," "sei'vant," 
 or other member of his family, as the case may be, " of the 
 said plaintiff A. B., or defendant E. F., at his dwelling- 
 
 M 
 
162 FORMS. 
 
 house, situate, &c.," or in case he has given an address for 
 service, say "at his address for service;" where the plains 
 tiff sues or the defendant has appeared by a solicitor, say 
 " the said Mr. K. L.," or " the clei'k or servant of the said 
 Mr. K, L., at his place of business, situate, &&," or if an 
 address for service has been given, say " at his address for 
 service"] at in the county of which said 
 
 copy of interrogatories appeared to me to have been duly 
 stamped and marked as an office copy at the record and 
 writ clerks' office, and purported to be a copy of" [if the 
 interrogatories apply to other plaintiffs or defendants, insert 
 the words "such of "J the interrogatories filed in this cause 
 on the day of 1853, for the examination 
 
 of the said [" pkintiff A. B." or "defendant E. F.," and if 
 the interrogatories apply to other plaintiffs or defendants, add 
 " as the said plaintiflF A. B." or " the said defendant E. F. 
 was required to answer."] 
 
 Sworn, &c. 
 
 Affidavit of Service of Summons for Administration of Real 
 or Personal Estate. 
 
 In Chancery. 
 
 In the matter of the Estate of G. H., late of 
 deceased. 
 
 Between A. B. - - Plaintiff, 
 
 and 
 CD. - - Defendant. 
 
 I, M, N., of &c., make oath and say, 
 
 1. That I did on the day of 1853, serve 
 
 the above named defendant C. D,, with a summons in this 
 matter bearing date the day of 1853, 
 
 issued from and under the seal of the chambers of [name of 
 judge] by delivering to and leaving with the [if personally 
 served, say "said defendant C. D. personally," J/" mo^ ;7er«o«- 
 ally served, say " wife," " servant," or other member of the 
 family of the defendant served, as the case may be " of the 
 said dei'endant C. D.j at his dwelling-house, situate"] at 
 in the county of a true copy of the said 
 
 summons, at the same time producing and shewing to the 
 said]" defendant C. D.," or "wife," H servant," &c., of the 
 
FOUMS. 
 
 163 
 
 said " defendant C. D."] the said original summons so under 
 seal as aforesaid, by which said summons the said defendant 
 C. D., was [if there be more defendants than one; insert " and 
 the other defendant" or "defendants above named were"] 
 required to attend at the chambers aforesaid at on 
 
 the day of at of the 
 
 clock in the noon, to show cause if he [or they] 
 
 could, why an order for the administration of the [" real" 
 or " personal" as the case may he\ estate of the above named 
 G. H. should not be granted. 
 
 2. And I further say, th^ I did on the day of To be 
 
 serve the above-named defendant E. F., with the J^^*^ '^ 
 said summons so under seal as aforesaid, by delivering, &c. should be 
 [as in former paragraph, mutatis mutandis, as far as the more de- 
 words " so under seal as aforesaid," inclusive, omitting the fondants 
 remainder of the paragraph^] \ 
 
 3. And I further say, that the said summons and the 
 [" copy" or " several copies"] thereof, so served [" was" or 
 " were"] underwritten with the name and place of business 
 of the solicitor by whom the said summons was taken out, 
 and had a note added thereto in the form prescribed by the 
 General Orders of this Honorable Court (a). 
 
 4. And I further say, that the said ["copy" or "several 
 copies"] so served, as aforesaid [" was" or " were"] stamped 
 with the stamp of the record and writ clerks' office, indicat- 
 ing the filing of'a duplicate of the said summons at the said '''"''f .'?" 
 
 ^ " r serted )i an 
 
 Oince. endorse- 
 
 5. And I further say, that the ["copy" or "several ment has 
 copies"] of the said summons so served upon the said been mace 
 [name the defendant or defendants on whom the copy or copies another day 
 was or were served with an endorsement] had an endorsement for tbc at- 
 thereon dated the day of under the seal '^JJ^*°,"'=^°[ 
 of the said chambers, whereby the day of served. 
 
 (a) These words are in conformity with the practice hitherto 
 adopted in affidavits of service of subpoena to appear and answer as 
 regards the memorandum directed to be put at the foot thereof by the 
 schedule to the Orders of the 8th May 1845. — See VeaFs Record and 
 Writ Practice, p. 117. 
 
 If the deponent be not acquainted with the General Orders, copy 
 the name and place of business of the solicitor by whom the sum- 
 mons was taken out, and the note at the foot of the summons. If the 
 note has been altered in consequence of an endorsement having been 
 made on the summons extending the time of hearing, set out the note 
 as altered, stating upon which of the defendants the note in the altered 
 form has been served. 
 
 M 2 
 
164 
 
 FORMS. 
 
 1853, at of the clock was appointed for the parlies 
 
 who had not been served with the said summons to attend 
 at the said chambers {a). 
 
 Sworn, &c. 
 
 Affidavit of Service of Summons originating Proceedings at 
 Judges^ Chambers, not being an Administration Summons. 
 
 In Chancery. 
 
 In the matter of 
 
 I, M. N., of, &c,j make oath and say 
 
 1. That I did on the d%y of 1853, serve 
 
 C. I)., of, &c., with a summons in this matter bearing date 
 the day of 1853, issued from and under 
 
 the seal of the chambers of [name of judge"] and addressed 
 to the said C. D. [and E. F., of, &c.] by delivering to and 
 leaving with the [if personally served say " said C. D. per- 
 sonally," or if not so served say " wife," " servant," or other 
 , member of the family as the case may be, " of the said C. D. 
 at his dwelling-house, situate"] at in the county of 
 
 a true copy of the said summons " at the same 
 time producing and showing to the said [" ('. D." or " wife," 
 " servant," &c., " of the said C. D.,"] the said original sum- 
 mons so under seal as aforesaid, by which said summons all 
 parties concerned were required to attend at the chambers 
 aforesaid at on the day of 
 
 at of the clock in the noon, upon the hearing of 
 
 an application on the part of A. B., of &c., for the purpose 
 therein specified. 
 To be in- 2. And I further say that I did on the day of 
 sorted if the serve E. F., of, &c., with the said summons so under seal as 
 he"ad°"^ aforesaid by delivering, &c., [as in the former paragraph as 
 dressed to far as the words "said original summons so under seal as 
 more per- aforesaid " inclusive, oinitting the remainder of the paragraph.! 
 
 sons than ./ i^ j 
 
 one," 
 
 (o) If a second endorsement has been made, a paragraph should 
 be added applicable to such endorsement, and_ stating the defendants 
 upon whom the summons, with such last-mentioned endorsement, has 
 been served. 
 
FORMS. IfiS 
 
 3. And I further say that the said ' summons and [" the 
 copy" or " the several copies thereof"] so served, [" was" or 
 " were"] und'erwritten with the name and place of business 
 of the solicitor by whom the said summons was taken out, 
 and had a note added thereto in the form prescribed by the 
 General Orders of this Court, (a) 
 
 4. And I further say that the ["copy" or "several 
 copies"] of the said summons so served as aforesaid, ["was" 
 or "were"] stamped with the stamp of the record and writ 
 clerks' oflBce, indicating the filing of a duplicate of the said 
 summons at the said office. 
 
 5. And I further say that the ["bopy" or "several Tobein- 
 copies"] of the said summons so served upon the said sertedifan- 
 [name the persons on whom copies were served with an en- ^g°l^\^l^ 
 dorsement] had an endorsement thereon dated the day been made 
 of under the seal of the said chambers, whereby appointing 
 the day of December 1853, at of the clock was f"°,i,"at-' 
 
 appointed for the parties who had not been served with the tendance of 
 mmons to a: 
 
 Sworn, ftc. 
 
 said summons to attend at the said chambers, (b) '^^ persons 
 
 not s.rvcd. 
 
 Affidavit of Service of Summons for proceedings at Judges' 
 Chambers in a Suit. 
 
 In Chancery. 
 
 Between A. B. - Plaintiff, 
 
 and 
 C. D. and E. F. - -Defendants. 
 
 I, M. N., of, &c., make oath and say 
 
 1. That I did on the day of 1853, serve \if 
 
 the party served has either not appeared or appeared in person 
 sap " the above named plaintiff," or " the above named de- 
 fendant C. D." if he sues by or has appeared by a solicitor, 
 say " Mr. G. H., the solicitor of the above named plaintiff," 
 or " defendant C. D."] with a summons bearing date the 
 day of 1853, issued from and under the seal of 
 
 the chambers of \name of judge"] by delivering to and 
 
 (rt) -See note p. 163. 
 (6) See note p. 164. 
 
1 66 FORMS. 
 
 leaving with the [when the plaintiff sues in person^ or the de- 
 fendant has either not appeared or has appeared in person, if 
 he has been served personally, say " plaintiflF," or " defendant 
 C, D., personally ;" if he has not been served personally, say 
 " wife," " servant," or other member of the family, as the case 
 may be, " of the said plaintiff, or defendant C D., at his 
 dwelling-house, situate, &c.," or, in case he has given an 
 address for service, say " at his address for service ;" when 
 the plaintiff sues or the defendant appears by a solicitor, 
 say "the said Mr. G. H." or " the clerk," "servant," &c., 
 of the said Mr. G. H., at his place of business, situate,'' &c., 
 or, if an address for service^ has been given, say " at his ad- 
 dress for service"] a true copy of the said summons, and at the 
 same time producing and showipg to the said [" plaintiff," 
 or « defendant C. D.," or "Mr. G. H.," or " wife," "servant, 
 &c., of the said plaintiff," or " defendant C. D.," or "of the 
 said Mr. G. H."] the said original summons, so under seal 
 as aforesaid, by which said summons all parties concerned 
 were required to attend at the chambers e^oresaid, at 
 at of the clock in the noon, upon the hearing 
 
 of an application on the part of the said ["plaintiff," or 
 "deferidant C. D."]for the purpose therein specified. 
 To be in- 2. And I further say that I did, on the day of 
 
 sertedifthe serve [" the above named defendant E. F.," or 
 
 ratteen " ^r. G. H., the solicitor of the above named defendant 
 servedupon E. F.,"j with the aforesaid summons \follow the form in the 
 more former paragraph as far as the words " the said original 
 
 Sne''^^' *" summons, so under seal as aforesaid" inclusive, omitting the 
 remainder of the paragraph^] 
 
 Sworn, &c. 
 
 Ordinary Form of Summons, (a) 
 In Chancery. 
 
 Rolls [or. Vice Chancellor, &c.J 
 
 In the matter of John Thomas, an Infant, 
 or Joseph Wilson 
 
 against 
 William Jackson. 
 Let all parties concerned attend at my chambers [in the 
 
 (a) Schedule (A) to General Orders of the 16thof October 1852. 
 
FORMS. 
 
 Rolls Yard, Chancery Lane, Middlesex], [or, at No. , 
 Square, Lincoln's Inn, Middlesex], on the 
 
 day of , at of the clock in the noon, on 
 
 the hearing of an application on the part of [here state 07i 
 whose behalf the application is made, and the precise object of 
 the application.'] 
 
 Dated this day of 1852. 
 
 John Romilly, Master of the Rolls, or 
 Richard T. Kindeksley, Vice Chancellor, or 
 John Stuart, Vice Chancellor, or 
 William Page Wood, Vice Chancellor. 
 
 This summons was taken out by A. and B. of Lin- 
 coln's Inn, in the county of Middlesex, solicitors 
 for 
 To 
 
 The following note to be added to the original summons 
 where proceedings originate in chambers ; and when 
 the time is altered by endorsement, the endorsement to 
 be referred to as below. 
 
 Note. — If you do not attend, either in person or by your 
 solicitor, at the time and place above mentioned [or at the 
 place above mentioned, at the time mentioned, in the endorse- 
 ment hereon], such order will be made, and proceedings 
 taken, as the judge may think just and expedient. 
 
 N.B. — The form of summons to he obtained under section 
 45 of the Act 15 §• 16 Vict, c. 86, is prescribed by 
 Rule XLIL of the Orders of 1th of August 1852. 
 See supra, p. 95. 
 
 Form of Summons by Chief Clerk, (a) 
 
 In Chancery. 
 
 Rolls [or, Vice Chancellor, &c.j 
 
 In the matter of the estate of John Thomas, late of 
 , in the county of , deceased, 
 
 or 
 Josepb Wilson 
 
 against 
 William Jackson. 
 
 (a) Schedule (B) to General Orders of the 16th of October 1852. 
 
]68 
 
 FORMS. 
 
 The defendant, William Jackson [or, A. B. of, &c.] is 
 hereby summoned to attend at the chambers of the Master 
 of the Rolls [or, Vice Chancellor ], in the Rolls 
 
 Yard, Chancery Lane [or. No. , Square, Lincoln's 
 
 Inn, Middlesex], on the day of at 
 
 of the clock in the noon, to be examined 
 
 [or, to be examined as a witness on the part of the 
 for the purpose of the proceedings directed by the Master 
 of the Rolls [or, the said Vice Chancellor] to be taken 
 before the. 
 
 Dated this day of 185S. 
 
 A. B. 
 
 Chief Clerk. 
 
 This summons was taken out by A. and B. of Lincoln's 
 Inn, in the county of Middlesex, solicitors for 
 
 Form of Order, directing Accounts and Inquiries, (a) 
 
 Rolls [or, Vice Chancellor, &c.] 
 
 This Court doth order, that the following accounts and 
 inquiries be taken and made ; that is to say, 
 
 1. An account of the personal estate not specifically 
 bequeathed, of A. B., deceased, the testator in the plead- 
 ings named, come to the hands of, &c. 
 
 2. An account of the said testator's debts. 
 
 3. An account of the said testator's funeral expenses. 
 
 4. An account of the said testator's legacies. 
 
 5. An inquiry what parts (if any) of the said testator's 
 personal estate are outstanding or undisposed of. 
 
 And it is ordered, that the said testator's personal estate 
 not specifically bequeathed, be applied in payment of his 
 debts and funeral expenses in a course of administration, 
 and then in payment of his legacies. 
 
 And it is ordered, that the following further accounts and 
 inquiries be taken and made ; that is to say, 
 
 6. An inquiry what real estate the said testator was 
 seised of or entitled to at the date of his will and at the time 
 of his death. 
 
 (a) Schedvde (C) to General Orders of the 16th of October 1852. 
 
FORMS. 169 
 
 7. An inquiry what incumbrances affect the said testator's 
 real estate received by, &c. 
 
 8. An account of the rents and profits of the said tes- 
 tator's real estate received by, &c. 
 
 9. And it is ordered, that the said testator's real estate be 
 sold. ' , 
 
 And it is ordered, that the further consideration of this 
 cause be adjourned, and any of the parties are to be at 
 liberty to apply as they may be advised. 
 
 Fann of Advertisement, (a) 
 
 Rolls [or. Vice Chancellor, &c.] 
 
 Pursuant to a decree or order of the High Court of 
 Chancery, made in a cause ' against the 
 
 creditors of [or persons claiming debts', or liabilities affecting 
 the estate of, or the persons claiming ^ be next of hin to, or 
 the heir of, as the case may be], late of 
 
 in the county of who died in or about the month 
 
 of ' are by their solicitors, on or before the 
 
 day of to come in and prove^ their debts or claims 
 
 at the chambers of the Master of the Rolls, in the Rolls 
 yard, Chancery Lane \or, of the Vice Chancellor 
 No , Square, Lincoln's Inn], Middlesex, or in 
 
 default thereof they will be peremptorily excluded from the 
 benefit of the said decree [or order]. 
 
 Monday, the day of at o'clock in the 
 
 noon, at the said chambers, is appointed for hearing 
 and adjudicating upon the claims. 
 
 Dated this day of 1853. 
 
 Let this advertisement be published in the London 
 Gazette of 
 
 A. B. 
 
 Chief Clerk. 
 
 Form of Certificate of Chief Clerk, {b) 
 
 Rolls [or. Vice Chancellor, &c.J 
 
 In the matter of , [or, between .] [Utate 
 
 (a) Schedule (D) to General Orders of the 16th of October 1852. 
 (6) Schedule (E) to General Orders of the 16th of October 1852. 
 
170 
 
 FORMS. 
 
 titie,] In pursuance of the directions given to me by the 
 Master of the Rolls [or, the Vice Chancellor ], I 
 
 hereby certify, that the result of the accounts and inquiries 
 which have been taken and made, in pursuance of the 
 order in this cause, dated the day of is as follows: 
 
 1. The defendants, the executors of 
 
 the testator, have received personal estate to the amount of 
 £ - and they have paid, or are entitled to be allowed 
 
 on account thereof, sums to the amount of £ leaving 
 
 a balance due from [or to] them of £ on that 
 
 account. 
 
 The particulars of the above receipts and payments 
 appear in the account marked verified by the affi- 
 
 davit of , filed on the day of , and which 
 
 account is to be filed with the certificate, except that in 
 addition to the sums appearing on such account to have 
 been received, the said defendants are charged with the 
 following sums [state the same here, or in a schedule^, and 
 except that I have disallowed the items of disbursement in 
 the said account numbered and 
 
 [Or in cases where a transcript has been made.] 
 
 The defendants have brought in an account 
 
 verified by the affidavit of filed on the day of 
 
 and which account is marked and is to be 
 
 filed with this certificate. The account has been altered, 
 and the account marked and which is also to be 
 
 filed with this certificate, is a transcript of the account as 
 altered and passed. 
 
 2. The debts of the testator which have been allowed are 
 set forth in the schedule hereto, and with the 
 interest thereon and costs mentioned in the schedule^ are 
 due to the persons therein named, and amount altogether 
 to £ . 
 
 3. The funeral expenses of the testator amount to the 
 sum of £ which I have allowed the said executors 
 in the said account of personal estate. 
 
 4. The legacies given by the testator are set forth in the 
 
 schedule hereto, and with the interest therein 
 mentioned remain due to the persons therein named, and 
 amounted altogether to £ 
 
 5. The outstanding personal estate of the testator consists 
 of the particulars set forth in the schedule hereto. 
 
FORMS. 171 
 
 6. The real estate to which the testator was entitled 
 consists of the particulars set forth in the schedule 
 hereto. 
 
 7. The incumbrances affecting the said testator's real 
 estate, are specified in the schedule hereto. 
 
 8. The defendants have received rents and profits of the 
 testator's real estate, &c. \in a form similar to that provided 
 with respect to the personal estate^. 
 
 9. The real estates of the testator directed to be sold 
 have been sold, and the purchase money, amounting alto- 
 gether to £ has been paid into Court. 
 
 Ni£. — The above numbers are to correspond with the 
 numbers in the decree. 
 
 After each statement the evidence produced is to be 
 stated as follows : 
 
 The evidence produced on this account [or inquiry] 
 consists of the probate of the testator's will, the affidavit of 
 A. B. filed and paragraph No. of the affidavit 
 
 of C. D. filed. 
 
 Judges Summons for Production of Documents. 
 
 In Chancery. 
 
 Let all parties concerned attend at my chambers 
 Middlesex, on the day of 1853, at of 
 
 the clock in the noon, on the hearing of an appli- 
 
 cation on the part of or production by the 
 
 upon oath of documents relating to the matters in question 
 in this cause. 
 
 Dated this day of 1853. 
 
 This summons was taken out by of 
 
 solicitor for 
 To 
 
172 FORMS. 
 
 Order for Production of J)ocuments at the Record and Writ 
 Office, under 18 §• 20 Sections of the Act of 15 §• 16 
 Vict. c. 86. 
 
 Master of the Rolls, 1 the day of in 
 
 or, Vice Chancellor, > the year of the reign of her 
 
 at Chambers. } Majesty Queen Victoria, 1853. 
 
 A. B. against C. D. 
 
 Upon the application of and hearing the solicitor 
 
 for the It is ordered, that the do within 
 
 make and file a full and sufficient affidavit, stating 
 whether he has or had-in his possession or power any, and 
 if any, what -documents relating to the matters in question, 
 in this suit, and accounting for the same. 
 
 And it is ordered that the said do within 
 
 produce and leave with the clerk of records and writs in 
 whose division this cause is, such of the said documents 
 as by such affidavit shall appear to be in his possession or 
 power, except such of the same (if any) as he may by his 
 said affidavit object to produce. 
 
 And it is ordered, that the said his solicitors or 
 
 agents, be at liberty to inspect and peruse the documents 
 so produced and left, and to take copies thereof and ab- 
 stracts and extracts herefrom, as the shall be iadvised, 
 at his expense. 
 
 And it is ordered that the said clerk of records and- 
 writs do produce the same before any examiner of this 
 Court, and at the hearing of this cause as the 
 shall require. 
 
 And the said is to be at liberty to make such 
 
 further application as to all or any of the documents men- 
 tioned in the said affidavit as he may be advised. 
 
 Order for Production of Documents at SoKdtors' Offijce, 
 under 18 ^ 20 Sections of the Act of lb ^ IQ Vict. cap. 16. 
 
 Master of the Rolls, ^ the day of 
 
 ir, Vice Chancellor >in the year of the reign of 
 
 at Chambers. } her Majesty Queen Victoria, 1853. 
 
 A. B. against (1 D. 
 
FORMS. 
 
 Upon the application of and hearing the solicitor 
 
 for the It is ordered, that the do within 
 
 make and file a full and sufficient affidavit, stating 
 ■whether he has or has had in his possession or power any, 
 and if any, what documents relating to the matters in 
 question in this suit, and accounting for the same. 
 
 And it is ordered, that the said do at all season- 
 
 able times, upon reasonable notice produce at the office of 
 at , such of the said documents as by 
 
 such affidavit shall appear to be in his possession or power, 
 except such of the same, if any, as he may by his said 
 affidavit object to produce. 
 
 And it is ordered, that the said his solicitor or 
 
 agent, be at liberty to inspect and peruse the documents 
 so produced, and to take copies thereof and abstracts and 
 extracts therefrom as the shall be advised, at his 
 
 expense. 
 
 And it is ordered, that the said do produce the ^ 
 
 same before any examiner of this Court, and at the hearing 
 of this cause, as the said shall require. 
 
 And the said is to be at liberty to make such 
 
 further application, as to all or any of the documents 
 mentioned in the said affidavit, as he may be advised. 
 
 Fffrm of Affidavit as to Production of Documents, under 
 Sections 18 §• 20 of the Actof\5S^\Q Vict. c. 86. 
 
 In Chancery. 
 
 Between, &c. 
 
 I of make oath and say as follows : — 
 
 1. I say I have in my possession or power the documents 
 
 relatino- to the matters in question in this suit set forth 
 
 in the first and second parts of the first schedule (a) hereto 
 
 annexed, 
 
 (a) Note.— The schedule to be divided into two parts, when the 
 deponent objects to the production of any of the documents. 
 
 The first part is to contain the documents, if any, to the production 
 of which he does not object. 
 
 The second part is to contain the documents, if any, to the produc- 
 tion of which he does object. 
 
174 
 
 2. I further say, that I object to prodnc6 the said docu- 
 ments set forth in the second part of the said first schedule 
 hereto. 
 
 3. I further say, (state upon what grounds 
 the objection is made, and verify the facts so far as may be). 
 
 4. I further say, that 1 have had but have not now in my 
 possession or power the documents relating to the matters 
 in question in this suit, set forth in the second schedule 
 hereto annexed. 
 
 5. I further say, that the last-mentioned documents were 
 last in my possesion or power on (state when). 
 
 6. I further s^y, (state what has become of the 
 last- mentioned documents, and in whose possession they 
 now are). 
 
 7. I further say, according to the best of my knowledge, 
 remembrance, information, and belief, that 1 have not now, 
 and never have had, in my own possession, custody, or 
 power, or in the possession, custody or power of my 
 solicitors or agents, or solicitor or agent, or in the pos- 
 session, custody, or power of any other persons or person 
 on my behalf, any deed, account, book of account, voucher, 
 receipt, letter, memorandum, paper, or writing, or any 
 copy of or extract from any such document, or any 
 other document whatsoever, relating to the matters in ques- 
 tion in this suit, or any of them, or wherein any entry has 
 been made relative to such matters, or any of them, other 
 than and except the documents set forth in the said first 
 and second schedules hereto (a). 
 
 Form of Order to Appoint a Receiver under an Order of the 
 Court directing a Proper Person to be Appointed. 
 
 Master of the Rolls, ) the day of 
 
 or. Vice Chancellor >in the year of the reign of 
 
 at Chambers. } Her Majesty Queen Victoria, 1853. 
 
 Between 
 Whereas by an order made in this cause, dated the 
 
 (a) If the party denies having any, he is to make an affidavit in the 
 form of the seventh paragraph, omitting the exception. 
 
FORMS. 175 
 
 day of it was ordered that a proper person should 
 
 be appointed to receive the rents and profits of the real 
 estates, and to collect and get in the outstanding personal 
 estate of the testator in this cause named. 
 
 And whereas has been approved of by the judge of 
 
 this Court to whom this cause is attached as a proper per- 
 son for that purpose. And the said has given security 
 pursuant to the General Order of this Court in that behalf, 
 and has entered into a recognizance, together with 
 and as his sureties, dated the ' day of 
 which has been approved of by the said judge and 
 duly enrolled. 
 
 Now upon the application of and hearing the 
 
 solicitor for the 
 
 It is ordered that the said be appointed receiver 
 
 of the said rents and profits, and to collect and get in the 
 said outstanding personal estate. And that the day 
 
 of next, and the same day in each succeeding 
 
 year, be the day on or before which the said is 
 
 annually to cause his account to be delivered into the 
 chambers of the said judge. And that the day of 
 
 in every year be the day on or before which the 
 said is to pay the balances appearing due on the 
 
 accounts so to be delivered in, or such part thereof as shall 
 be certified to be proper to be paid as directed by the said 
 order of the day of 
 
 Form of Certificate under an Order Naming a Person to be a 
 Receiver. 
 
 Between Plaintiff, 
 
 and 
 
 Defendant. 
 
 In pursuance of the directions given to me by the Master 
 of the Rolls [or, the Vice Chancellor ], I hereby 
 
 certify, that in pursuance of the order in this cause, dated 
 the day of 1853 of the person who 
 
 upon first giving security is by the said order appointed 
 receiver of the rents and profits of the real estates, and to 
 collect and get in the outstanding personal estate of 
 in the said order named, has given security pursuant to the 
 
176 FORMS. 
 
 General Order of this ('ourt, and has entered into a recog- 
 nizance together with and as his sureties, 
 dated the day of which has been approved 
 of by the said judge, in testimony whereof I have signed 
 an allowance in the margin thereof, and such recognizance 
 has been duly enrolled. And I also certify, that the said 
 judge has appointed the day of next, and 
 , the same day in each succeeding year, to be the day on 
 which the said is annually to cause his account to 
 be delivered into the chanibers of the said judge. And 
 that the said judge has also appointed the day of 
 in every year to be the day on which the said 
 is to pay the balances appearing due on the 
 accounts so to be delivered in, or such part thereof as shall 
 be certified to be proper to be paid as directed by the said' 
 order of the day of ' dated this day 
 of 
 
 Form of a Receiver s's Recognizance. 
 
 of 
 
 of 
 
 and 
 of 
 
 Before our Sovereign Lady the Queen in her High 
 Court of Chancery personally appearing, do acknowledge 
 themselves and each of them doth acknowledge himself 
 to owe to the Right Honourable Sir John Romilly, 
 Knight, the Master of the Rolls, and the senior 
 
 Vice Chancellor of the said Court, the sum of 
 of good and lawful money of Great Britain, to be paid 
 to the said Sir John Romilly and or one of them, 
 
 or the executors or administrators of them or one of 
 theni, and unless they do pay the same they the said 
 are willing and do grant and each of them is 
 willing and doth grant, for himself, his heirs, executors, 
 and administrators, and that the said sum of shall 
 
 be levied, recovered, and received of and from them and 
 each of them and of and from all and singular the 
 manors, messuages, lands, tenements, afid hereditaments, 
 goods and chattels of them and each of them wheresoever 
 
FORMS. 177 
 
 the same shall or may be found. Witness our said 
 Sovereign Lady Victoria by the Grace of God of the 
 United Kingdom of Great Britain and Ireland, Queen, 
 Defender of the Faith and so forth, at Westminster, the 
 day of in the year of her reign, 
 
 and in the year of our Lord, 1853. 
 
 Whereas by an order of the High Court of Chaiiciery, 
 made in a cause wherein are plaintiffs and 
 
 defendants, and bearing date the day of 1853. 
 
 It was ordered that a proper person should be appointed 
 to receive ["^or that upon thfi above bounden first 
 
 giving security, he should be appointed receiver of^ the rents 
 and profits of the real estates, and to collect and get in the 
 outstanding personal estate of in the said order 
 
 named. 
 
 And whereas the judge to whose Court this cause is 
 attached hath [approved of the said as a proper 
 
 person to be such receiver, and hath'\ approved of the above 
 bounden and as sureties for the said 
 
 and hath also approved of the above written recognizance 
 with the underwritten condition as a proper security to be 
 entered into by the said and pursuant to 
 
 the said order and the General Orders of the said Court in 
 that behalf; and in testimony of such approbation the chief __ 
 clerk of the said judge hath signed an allowance in the 
 margin hereof. 
 
 Now the condition of the above written recognizance is 
 such that if the said do and shall duly account for 
 
 all and every the sum and sums 6f money which he shall so 
 receive on account of the rents and profits of the real estates 
 and in respect of the personal estate of the said at 
 
 such periods as the said judge shall appoint, and do and 
 shall duly pay the balances which shall from time to time 
 be certified to be due from him as the said Court or judge 
 hath directed, or shall hereafter direct, then the above 
 recognizance shall be void and of none eifect, otherwise the 
 same is to be and remain in full force and virtue. 
 
 Taken and acknowledged by the above-named, &c. 
 
 A. B. V. C. D. 
 
 The . , the judge to whose Court this cause is 
 
 attached, has approved of and allowed this recognizance. 
 
 Chief Clerk. 
 
''° - FORMS. 
 
 Form of Summons by Chief Clerk for Witness or Party to 
 attend to he Examined. 
 In Chancery. 
 
 In the matter of the estate of John Thomas, late. of 
 in the county of deceased, 
 
 , or • 
 
 ■ Joseph Wilson 
 
 against 
 
 William Jackson. 
 
 The defendant Wm. Jackson {or " A. B. of, &c."] is 
 hereby summoned to attend at the chambers of the Master 
 of the Rolls \or Vice Chancellor- ] in the Rolls 
 
 Yard, Chancery Lane \or. No. Square, Lincoln's 
 
 Inn, Middlesex], on the day of -at 
 
 of the clock in the noon ' to be examined, [or, " to be 
 
 examined as a witness on the part of the "J, 'for 
 
 the purposie' of the proceedings directed by the Master of 
 the Rolls, \<yr, thp said Vice Chancellor], to be taken before 
 me. 
 
 Dated this day of 1853. 
 
 Chief Clerk. 
 
 This summons was taken out by A. and B. of Lincoln's 
 Inn, in the county of Middlesex, solicitors for 
 
 Form of Authority to Solicitor to institute Suit on behalf of 
 Next Friend. 
 In Chancery. 
 
 Between A. B. [the wife of C. D, by E. F. of ] 
 
 Esquire, her next friend, Plaintiff, 
 
 and 
 
 G. H. and the said C. D, Defendants. 
 
 ToMr.R.S.of |? .the ]. pear Sir, 
 
 county of solicitor J 
 
 I hereby authorize and request you to institute this suit 
 
,^ FORMS. 179 
 
 on behalf of the above-named A. B. and to use my name 
 as her next friend, dated this day of one 
 
 thousand eight hundred and fifty-three. 
 
 ■'■^■■'' lam, 
 
 . "■ Dear Sir, ♦ 
 
 Yoor's truly, 
 E. F. 
 
 Form of Request to set down Cause for further Consideration. 
 
 In Chancery. 
 
 A. V. B. 
 
 I request that this cause, the further consideration 
 whereof was adjourned by the order of the day of 
 
 may be set down for further consideration before 
 iiis Honor the 
 
 CD.,' 
 
 Solicitor for the Plaintiff. 
 Dated, &c. 
 
 Form of. Notice of Cause being set down for further 
 Consideration. 
 
 In Chancery. 
 
 A. V. B. 
 
 Take notice that this cause, the further consideration 
 
 whereof was adjourned by the order of the day of 
 
 was on the day of set down for 
 
 further consideration before his Honor the for the 
 
 day of 1853. 
 
 Yours, &c., 
 
 CD., 
 
 Solicitor for the Plaintiff. 
 To Mr. 
 
 Solicitor for the Defendant. 
 n2 
 
180 
 
 FORMS. 
 
 Form of Affidavit of Service of Decree or Order, or Notice of 
 Decree or Order under 15 §• 16 Vict. c. 86, s. 42. 
 
 In Chancery. 
 
 Between A. B. - - - Plaintiff, 
 
 and 
 
 C. D. - Defendant. 
 
 Or in the matter of,- &c., as the case may be. 
 
 I, of make oath and say as follows : 
 
 I did on the day of serve E. F. one of the 
 
 children of the testator, named in the plaintiflF's 
 
 bill \or " claim,"] filed in this cause, [or the above-named 
 defendant], with a notice in writing, in the words 
 and to the effect following, that is to say [set out the notice, 
 or if a copy of the decree or order is served, the original may 
 be referred to as an exhibit, thus the "decree" or "order" 
 now produced and shown to me marked " L." or the copy 
 may be set out in the affidavit as a true copy of the decree 
 or order], by delivering such notice [or copy"] to and 
 -leaving the same with the said E. F. [or by. delivering to 
 and leaving with the said E. F., a true copy of the said 
 decree or order] at the residence of the said E. F., or as the 
 case may be, situate at in the county of 
 
 Sworn, &c. 
 
 Form of Memorandum of Service of Decree. 
 
 In Chancery. 
 
 A. V. B. 
 
 Memorandum of the service of notice of the decree [or 
 " order"] made in this cause by the Master of the Rolls [or 
 Vice Chancellor ] dated the day of 
 
 1853, to be entered under Order 41st of the Rules of 
 7th August 1852. 
 
FORMS. 
 
 181 
 
 Bate when 
 served. 
 
 Name 
 
 of 
 Parties. 
 
 Residence. 
 
 iProof of Service by 
 Affidavit of 
 
 18S3, June 10. 
 .. 11- 
 
 William Smith . . 
 Edward Barnes.. 
 
 r 14, Oheapsldelnthex 
 \ City of London. / 
 
 r Lyme Re^s in the 
 l County of Dorset. 
 
 Edward Witkins, filed 9th 
 June 1858. 
 
 Form of Affidavit of Service of Notice of Cause being set 
 down for further Consideration. 
 
 In Chancery. 
 
 Between A. B. 
 
 and 
 
 I, 
 
 C. D. 
 
 of 
 
 Plaintiff, 
 Defetiqlant. 
 
 make oath and say as follows: 
 
 1. I did on the day of serve Mr. 
 
 the solicitor for the defendant C. D., in this cause, with 
 a notice in writing, purporting that this cause the further 
 consideration whereof, was adjourned by the order of the 
 
 day of "was on the day of 
 
 set down for further consideration before his Honor the 
 Master of the Rolls [or " Vice Chancellor "] for the 
 
 day of by delivering such notice to and leaving 
 
 the same with a clerk [or " servant" or as the case may be] 
 of the said Mr. at his office, [or otherwise] situate 
 
 at in the county of Middlesex, 
 
 2. I did also on the day of serve Mr. 
 
 the solicitor for the defendant E. F, in this cause, 
 with a notice in writing in the words and figures, and 
 to the purport and effect of the said first mentioned riotice,^ 
 by delivering, &c., (as above). 
 
 Svvoni, &c. 
 
182 FORMS. 
 
 Certificate of Amount due on Mortgage. 
 
 1853, 
 Between A. B. - Plaintiff, 
 
 and 
 CD.- - - Defendant. 
 
 In pursuance of the direction^ given to me by the Master 
 of the Rolls, I hereby certify t;ha;t the result of the account 
 taken by me in pursuance of the order made in this cause, 
 dated the day of 1853, is as follows: 
 
 That there i,s. now due to the plaintiff A. B., as executor 
 of the "will of deceased, for principal and interest 
 
 under the indentures in the said order referred to, and for 
 the plaintiff's costs in this suit, the sum of £ 
 And that there will be due on the day of 
 
 1853, being six months from the date of this my certificate, 
 the further sum of £ for interest, making together 
 
 the sum of £ the particulars whereof appear in the 
 
 first part of the schedule to this my certificate. And the 
 day of is appointed for the defendant C. D., 
 
 to pay to the said plaintiff, the said sum of £ at 
 
 the Chapel of the Rolls, Chancery Lane, in the county of 
 Middlesex, between the hours of one and two of the clock 
 in the afternoon of the same day. The indentures produced 
 are set forth in the second part of the said schedule. 
 
 Dated the 11th day of February 1853. 
 
 Approved the day of 1853. 
 
 Chief Clerk. 
 
 Certificate of Good Title shewn and when. 
 
 Between A. B. - - Plaintiff, 
 
 ' and 
 
 CD. - - Defendant. 
 
 In pursuance of directions given to me by the Master of 
 the Rolls, I hereby certify that the result 6f the inquiries 
 which have been made in pursuance of the order in this 
 cause, dated the day of 1853, is as follows: 
 
FORMS. 1 83 
 
 1. A good title can be made to the premises comprised in 
 Lot 3, in the particulars of sale, and in the agreement in 
 the plaintiff's bill mentioned. 
 
 2. The day of 1853, is the time at which , 
 it was first shewn that such good title could be made. 
 
 The indenture produced which is marked with the 
 letter F. 
 
 Affidavit of the defendant filed in the cause on the 
 
 day of 
 Affidavits of the plaintiff A. B., and of G. H., both filed 
 the 7th of April 1853. 
 
 Affidavit of - filed the 11th day of April 1853, 
 
 and the abstract of title there referred to as made on the 
 30th day of 1852, and the exhibits D. and B. 
 
 therein referred to. 
 
 Dated the 16th day of April 1853. 
 
 Chief Clerk. 
 Approved the 22nd day of April 1853. 
 M. R. or V. C. 
 
 Form of Affidavit verifying Engrossment of Conveyance as 
 settled by the Conveyancing Counsel. 
 
 I, make oath and say that I hkve examined the 
 
 engrossment now produced, and shown to me written on 
 two skins of parchment, and marked on the outside thereof 
 with the letter A., with the draft now also produced and 
 shown to me, and marked on the outside thereof with the 
 letter B., and which draft was settled by William Hayes, 
 Esq., one of the conveyancing counsel appointed by this 
 honourable Court, and that the said engrossment is a true 
 and correct copy of the said draft, except as to the endorse- 
 ments made on the back of the said draft (a). 
 
 Memorandum of Approval of Deed. 
 
 10th June 1853. 
 
 A. B. V. C. D. 
 
 The Master of the Rolls, the judge to whose Court this 
 (a) Re CaddicKs Settlement, 9 Hare. Appendix, p. Ixxxv. 
 
184 
 
 FORMS. 
 
 cause is attached, has approved of this indenture as a 
 proper deed, pursuant to ah order dated the day of 
 
 1853. 
 
 Special Form of Order for Adniirmtermg the Estate of 
 a Married Woman under a Testamentary Power of 
 Appointment. 
 
 It is ordered (a) that the following accounts and inquiries 
 be taken and made, that is to say, 
 
 1. An account of the personal estate whith Margaret 
 Rachael Cleave, the testatrix, in the plaintiff's summons 
 named, had power to appoint or dispose of by virtue of 
 certain indentures dated respectively the 27th day of August 
 1845, and the 8th day of July 1850, and of which she has 
 in and by her last will appointed or disposed of accordingly,' 
 come to the hands of George Ashley and John Sewell, two 
 of the executors named in the will of the said testatrix, 
 Margaret Rachael Cleave, and to whom administration 
 limited to such personal estate and effects, as the said 
 testatrix had under and by virtue of the aforesaid inden- 
 tures, power to appoint or dispose of, was by the Preroga- 
 tive Court of Canterbury, on the 33rd day of May 1851, or 
 either of them, or to the hands of any other person or per- 
 sons, by their or either of their order, or for their or either 
 of their use. 
 
 2. An account of such of the testatrix's debts as her 
 separate estate was liable for the payment of. 
 
 3. An account of the legacies given by the said testatrix 
 out of such personal estate. 
 
 4. An account of what parts, if any of the said testatrix's 
 said personal estate are outstanding or undisposed of. And 
 it is ordered, that the'said personal estate of the said testa- 
 trix, be applied in payment of her said debts iu a due 
 course of administration, and then in payment of her said 
 legacies, and in taking such accounts, all just allowances 
 are to be made. And it is ordered, that the further con- 
 sideration of this matter be adjourned, and any of the 
 parties are to be at liberty to apply to this Court as they 
 may be advised. 
 
 (a) Ashley v. Sewell. See this case stated supra, in Chapter IX, 
 on " Business at Chambers." 
 
yoRMS, 185 
 
 Form of Chief Clerk's Certificate of the Result of Sale. 
 
 Between A. B. - - PlaintiflF, 
 
 and 
 CD. - - Defendant. 
 
 In pursuance of the directions given to me by the Master 
 of the Rolls [or the Vice (Chancellor ]. I hereby , 
 
 certify that the result of tl* sale which has been made in 
 pnrsuance of the direction numbered in the decree made 
 on the hearing of this cause, dated the day of 
 1853, is as follows : 
 
 The real estates of E. F. the testator in the pleadings of 
 this cause named have been sold in lots by public auction, 
 with the approbation of the said Master of the Rolls [or, 
 Vice Chancellor J who is the judge to whose Court 
 
 this cause is attached, subject to a reserved - bidding for 
 each lot fixed by the said judge, and according to certain 
 particulars and conditions- of sale thereof. And the several Sec Order 
 
 Eersons named in the first column of the first schedule [^ of I6th 
 ereto were the highest bidders for and are allowed by the jgg'g. ^"^ 
 said judge to be the purchasers of the lots set opposite their 
 respective names in the second column of the said first 
 schedule, at the prices or sums set opposite their respective 
 names in the third column of the said first schedule. The gee Order 
 said purchasers paid the several sums set opposite their 3 of 16th 
 respective names in the fourth column of tne said first ^^f'" 
 "schedule, being the^amounts fixed by the said judge to be 
 paid as deposits by the purchasers respectively at such sale, 
 and the several sums set opposite their respective names in 
 the fifth column of the said first schedule remain due from 
 the said purchasers respectively as the balance of their 
 respective purchase monies [exclusive of timber hnd trees xhese 
 down to the value cf Is. per stick, which are to be taken words to be 
 py their respective purchasers at a valuation to be made """It'ed or 
 in the usual way on or before the day of 1 854].^ jij^ ^^^ 
 
 The particulars of the respective lots so sold are set forth in may re- 
 the second schedule hereto, and I certify that the said l^'i^e- 
 several sums mentioned in the fourth column of the said 
 first schedule have been received by G. H. the person 
 appointed by the said judge to receive the said deposits, 
 
186 
 
 FORMS. 
 
 and such sums amount together to the sum of (a), 
 
 which sum the said G. H. is on or before the day of 
 
 1 854 to pay into the Bank with the privity of the 
 Accountant General of this Court to the credit of 
 as the money to arise from such sale is by the decree 
 directed to be paid. 
 
 Dated 
 
 Chief Clerk. 
 
 THE FIRST SCHEDULE. 
 
 Names, addresses, and 
 
 description of the 
 
 Purchasers. 
 
 Number 
 
 of 
 
 Lot 
 
 Amount of 
 Purchase 
 Money for 
 each Lot 
 
 Amount of 
 Deposit 
 
 Balance of 
 Purchase 
 Mon^ 
 
 remaining^ 
 unpaid. 
 
 THE SECOND SCHEDULE. 
 
 Number of Lot. 
 
 Description. 
 
 (a) The total amount of deposits to be set out here in words 
 at length. 
 
FORMS. 1 87 
 
 Form of Special Certificate of Chief Clerk where Cause 
 adjourned to Court for Argument after Examination of 
 Witnesses, and no Report made on the JEvidence. 
 
 In pursuance of the directions given to me by the Master 
 of the Rolls \or Vice Chancellor] I hereby certify that the 
 result of the inquiries whicb have been made in pursuance, 
 of the decree in this cause dated the day of 
 1852, and which inquiries have been made in the presence 
 of the solicitor for the plaintiff, and of the respective counsel 
 and solicitors of the several defendants except the defendant 
 F. F., whose solicitor has attended only on the settling of 
 this certificate is as follows : A. B., of in the county 
 
 of Chester, Solicitor, and C. D., of in the county of 
 
 Chester, Yeoman, one of the said defendants, being wit- 
 nesses procured by and on the part of the plaintiff, and 
 who had been already examined on the plaintiff's behalf 
 upon interrogatories filed in this cause, have been examined 
 upon oath viva voce before the said judge, touching the said 
 inquiries, and the examination of the said witnesses is con- 
 tained in a copy of the short-hand writer's notes ' thereof 
 signed by the said judge, and which by consent of the 
 several parties is to be taken as containing correct notes of 
 the evidence given, and the said judge having, at the request 
 of the several parties attending, adjourned the consideration 
 of the evidence till this cause shall be heard on further 
 directions, I have at the request of the same parties forborne 
 to state further the result of the inquiries directed by the 
 said decree. 
 
 Approved the day of 1853. 
 
 J. RoMiLLY, M. R. \pr V. C] 
 
 Chief Clerk. 
 
 N.B. This certificate was made in Rogers v. Mort, 
 March 14th 1853. 
 
FORMS. 
 
 Form of Order by Consent on Summons for Prosecution of 
 Decree before Judge at Cfiambers, instead of Master to 
 whom Cause stood referred. 
 
 A. 
 
 and 
 
 Plaintiff, 
 
 B. and C. 
 
 - 
 
 Defendants. 
 
 [Master of the Rolls at chambers, or Vice Chancellor]. 
 
 Upon the application of the plaintiff, and upon hearing 
 the solicitors of the plaintiff and defendants, It is by 
 consent ordered, that the inquiries directed by the decree 
 made in this cause, dated the day of 1852, 
 
 to be made by the Master of this Court to whom this cause 
 stands referred, be instead thereof made before the judge 
 in chambers. 
 
 N.B. — This order was made in Rogers v. Mort, by the 
 Vice Chancellor Turner, at Chambers, 6th December 
 1852. 
 
 Form of Decree on Further Directions on Chief Clerk's 
 Certificate. 
 
 This cause coming on this present day for the further 
 consideration thereof, adjourned by the decree dated, &c., 
 in the presence of counsel learned on both sides, Upon 
 opening and debate of the matter, and hearing the said 
 decree, the chief clerk's certificate, dated, &c., made in pur- 
 suance thereof read, ahd what was alleged by the counsel 
 on both sides this Court doth order, &c. 
 
 Form of Order on Petition. 
 
 Upon the petition of A. B. on the 1st day of De- 
 cember 1852, preferred unto, &c., and upon hearing 
 counsel for the petitioner and for C. D., and upon reading 
 the said petition, an affidavit of due service on _E. F. of 
 the said petition, [enter evidence if any] this (/ourt doth 
 
FOKMS. 189 
 
 order, &c. If part stands over, And it is ordered that so 
 much of the said petition as prays [state so much of the 
 prayer] do stand over until, &c. 
 
 N.B. — If the petition is dismissed, the prayer should be 
 recited in the order. 
 
 Form of Claim (a). 
 
 1. By a creditor upon the estate of a deceased peraon, 
 seeking payment of his debt out of the deceased's 
 personal assets. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming hini], 
 
 or, 
 [Master of the Rolls]. 
 
 Between A. B., Plaintiff. 
 E. E, Defendant. 
 
 The claim of A. B., of the above-named plaintiff. 
 
 The said A. B. states, that C. D., late of deceased, 
 
 was, at the time of his death, and that his estate still is, 
 justly indebted to him the said A. B., in the sum of £ 
 for goods sold and delivered by the said A. B. to the said 
 C. D. [or otherwise, as the case may he, or, if the debt is 
 secured by any written instrument, state the date and nature 
 thereof]. And that the said C. 1). died in or about the 
 month of and that the above-named defendant E. F. 
 
 is the executor [or administrator] of the said C. D., and 
 that the said debt hath not been paid; and therefore the 
 said A. B. claims to be paid the said debt or sum of £ 
 
 (a) See schedule (A) to the General Order of Court of the 22nd 
 of April 1850. 
 
 N.B. The order may be obtained now by taking out a common 
 summons at Judge's chambers, under the 45th section of the New 
 Procedure Act 15 & 16 Vict. c. 86. See supra, Chapter IX, on 
 " Business at Chambers." See also sect. 47 of the New Procedure 
 Act as to real estate. 
 
1 90 FORMS. 
 
 with his costs of this suit, and in de&ult thereof he claims 
 to have the personal estate of the said C. D. administered 
 in this Court on beh&lf of himself and all other the unsa- 
 tisfied creditors of the said CD., and for that purpose that 
 all proper directions may be given and accounts taken. 
 
 Note. — This form may be varied, according to the circum- 
 stances of the case, where the claimant is not the 
 original creditor, but has become interested in or 
 entitled to the debt; in which case the character in 
 which he claims is to be stated. 
 
 2. By a legatee under the will of any deceased person, 
 seeking payment or delivery of his legacy, out of the 
 testator's personal assets, (a) 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming himj, 
 
 or, 
 
 [Master of the Rolls]. 
 
 Between A. B., Plaintiff. 
 
 C. D., Defendant. 
 
 The claim of A. B. of the above-named plaintiff. 
 
 The said A. B. states, that he is a legatee to the amount of 
 £ , under the will dated the day of 
 
 of late of ^ deceased, who died on 
 
 the day of and that the above-named C. D. 
 
 is the executor of the said an^ that the said legacy 
 
 of £ , together with interest thereon after the rate 
 
 of £ per cent, per annum fi"om the day of 
 
 [the day mentioned in the will for the payment of the 
 legacy, or the expiration of twelve calendar months after the 
 said testator's death,'] is now due and owing to him the said 
 A. B., [or still unpaid or unsatisfied,] [or unappropriated or 
 unsecured,] and the said A. B. therefore claims to be paid 
 [or satisfied] the said legacy and interest, [or to have the said 
 legacy and interest appropriated and secured,] and in default 
 thereof he claims to have the personal estate of the said 
 
 (a) See note, last page, as to the common summons. 
 
FORMS. 191 
 
 administered in this Court, on behalf of himself and all 
 other the legatees of the said and for that purpose 
 
 that all proper directions may be given and accounts taken. 
 
 Note. — This form may be varied, according to the circum- 
 stances of the case, where the legacy is an annuity, or 
 specific, or where the plaintiff is not the legatee, but has 
 become entitled to or interested in the legacy ; in which 
 case the character in which the plaintiff claims is to be 
 stated. 
 
 3. By a residuary legatee, or any of several residuary 
 legatees, of any deceased person, seeking an account 
 of the residue, and payment or appropriation of his 
 share therein, (a) 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him], 
 
 or, 
 [Master of the Rolls]. 
 
 Between A. B., Raintiff. 
 C. D., Defendant. 
 The claim of A. B. of the above-named plaintiff. 
 
 The said A. 6. states, that he is the residuary legatee 
 [or one of the residuary legatees\ under the will dated the 
 day of of late of who died 
 
 on the day of and that the above-named 
 
 defendant C. D. is the executor of the said 
 and that the said C. D. hath not paid to the said A. B; the 
 \or his share of the\ residuary personal estate of the said 
 testator ; the said A. B. therefore claims to have the per- 
 sonal estate of the said administered in this Court, 
 and to have his costs of this suit, and for that purpose that 
 all proper directions may be given and accounts taken. 
 
 Note. — This form may be varied according to the circum- 
 stances of the case, where the plaintiff is not the 
 residuary legatee, but ha^ become entitled to or inte- 
 rested in the residue, in which case the character in 
 which he claims is to be stated. 
 
 (a) See note, p. 189, as to the common summons. 
 
192 FORMS. 
 
 4. By the persoi), or any of the persons, entitled to the 
 personal estate of any person who may have died 
 intestate, and seeking an account of such perspnal 
 estate, and payment of his share thereof. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming hirn\, 
 
 or, 
 
 [Master of the Rolls]. 
 
 Between A. B., Plaintiff. 
 
 C. D., Defendant. 
 
 The claim of A. B. of the above-named plaintiff. 
 
 The said A. B. states, that he is the next of kin \or one of 
 the next of kin], according to the statutes for the distribution 
 of the personal estate of intestates, of late of 
 
 who died on the day of intestate ; and that 
 
 the said A. B. is entitled to \or to a share of] the personal 
 estate of the said deceased, and that the said defendant 
 
 C. D. is the administrator of the personal estate of the said 
 '■ and that the said C. D. has not accounted for or 
 
 paid to the said A. B. the [or the said A. B.'s share of the] 
 personal estate of the said intestate. The said A. B. there- 
 fore claims to have the personal estate of the said 
 administered in this Court, and to have his costs of this 
 i suit ; and for that purpose that all proper directions may be 
 giveii and accounts taken. 
 
 5. By the executor or administrator of a deceased person, 
 claiming to have the personal estate of the testator 
 administered under the direction of the Court. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him], 
 
 or, 
 [Master of the Rolls]. 
 
 (a) See note, p. 189, as to the common summons. 
 
FORMS. 1 93 
 
 Between A. B., Plaintiff. 
 
 C. D., Defendant. 
 
 The claim of A. B, of . The said A. B. states, 
 
 that he is the executor [or administrator] of E. ¥., late of 
 but now deceased, who departed this life on or 
 about and that he hath possessed the personal 
 
 estate of the said E. F. to some amount, and that he is 
 willing and desirous to account for the same, and that the 
 whole of the personal estate of the said E. F. should be 
 duly administered in this Court for the benefit of all per- 
 sons interested therein or entitled thereto; and that C. D. 
 is interested in the said personal estate as one of the next Ti,ig £<,„„ 
 of kin [or- residuary legatee] of the said E. F., and the said may be 
 A. B. claims to have the personal estate of the said E. F. ^*",«.'^ *"- 
 applied in a due course of administration under the direc- efrcum? 
 tion of this Court, and in the, presence of the said C. D. stances 
 and such other persons interested in the said estate as this "''f°.*J° 
 Court may be pleased to direct, or that the said C. D. may co^exeou. 
 show good cause to the contrary : And that the costs of tor or co- 
 this suit may be provided for ; and for these purposes, that ailministra- 
 all proper directions may be given and accounts taken. defMcfant. 
 
 6. By a legal or equitable mortgagee or person entitled 
 to a lien as security for a debt, seeking foreclosure or 
 sale, or otherwise to enforce his security, 
 
 .In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him], 
 
 or, 
 
 [Master of the Rolls]. 
 
 Between A. B., Plaintiff. 
 
 C. D., Defendant. 
 
 The claim of A. B. of the above-named plaintiff. 
 
 The said A. B. states, that under or by virtue of an indent 
 ture [or otfier document], dated the day of 
 
 and made between [parties], [and a transfer thereof made 
 
194 
 
 FORMS. 
 
 The names 
 only of the 
 parties are 
 to be set 
 out, not the 
 substance 
 or effect of 
 the docu- 
 ment. 
 
 If there is 
 no written 
 security to 
 be referred 
 to, the pro- 
 perty is to 
 be de- 
 scribed 
 ■generally. 
 
 hy indenture dated the day of , and made 
 
 between [parties,'] the said A. B. is a mortgagee [or an 
 equitable mortgagee] of [or is entitled to a lien upon] certain • 
 freehold property [or copyhold, or leasehold, or other pro- 
 perty, as the case may be]', therein comprised, for securing 
 the sura of pounds and interest, and .that the time 
 
 for payment thereof has elapsed ; and that the above named 
 C. p. is entitled to the equity of redemption of the said 
 mortgaged premises [or the premises, subject to such lien], 
 and the said A. B* therefore claims to be paid the said sum 
 of pounds and interest, and the costs of this suit, 
 
 and in default thereof he claims to foreclose the equity of 
 redemption of the said mortgaged premises [or to have the 
 said mortgaged premises sold, or to have the premises subject 
 to_ such lien sold, as the case may be], and the produce thereof 
 applied in or towards payment of his said debt and costs, 
 and for that purpose to have all proper directions given 
 and accounts taken. 
 
 7. By a person entitled to the redemption of any legal or 
 equitable mortgage, or any lien, seeking to redeem the 
 
 same. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him]. 
 
 or. 
 
 [Master of the Rolls]. 
 
 Between A. B,,, Plaintiff. 
 
 C. D., Defendant. 
 
 The claim of A. B. of the above-named plaintiff. 
 
 The said A. B. states, that under or by virtue of an inden- 
 ture [or other document], dated the day of 
 and made between [parties'], [and the assurances hereinafter 
 mentioned, that is to say, an indenture dated the 
 day of , the will of dated the day of 
 ] the said A. B. is entitled to the equity of re- 
 
FOKMS. 
 
 195 
 
 demption of certain freehold property [pi' copyhold or lease- 
 /loM, or other property as the case may he\, therein comprised, 
 which was originally mortgaged \or pkdged] for securing the 
 sum of pounds and interest ; and that the above- 
 
 named defendant ^C. D. is now, by virtue of the said inden- 
 ture, dated the dayof [and of subsequeta 
 assurances], the mortgagee of the said property [or holder of 
 the said lien'], and entitled to the principal money and in- 
 terest remaining due upon the said mortgage [or 'lien] : and 
 he believes thatthe amount of principal money and interest 
 now due upon the said jaortgage [or lien] is the sum of 
 pounds, or thereabouts ; and that the said A. B. 
 hath made or caused to be made an application to the said 
 C. D. to receive the said sum of pounds, and any 
 costs justly payable to him, and to reconvey to fhe said 
 A. B. the said mortgaged property [or property subject to the 
 said lien], upon payment thereof, and of any costs due to 
 him- in respect of the said security, but that the said C D. 
 has not so done; and therefore the said A.B. claims to 
 be entitled to redeem the said mortgaged property [or 
 property subject to the said lien], and to have the same 
 reconveyed [or delivered up] to him, upon payment of the 
 principal money and interest and costs due and owing 
 upon the said mortgage [or lien], and for that purpose to 
 have all proper directions given and accounts taken. 
 
 8. By a person entitled to the specific performance of an 
 agreement for the sale or purchase of any property, 
 seeking such specific performance. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, narning hini], 
 
 or, 
 [Magter of the Rolls]. 
 
 Between A. B„ Plaintiff, 
 
 C. D., Defendant. 
 
 The claim of A. B. of the above-named plaintiff: 
 
 o2 
 
19" , FORMS. 
 
 The said A. B. states, that by an agreement dated the 
 daj of and signed by the above-named 
 
 defendant C. D., he, the said C. D-, contracted to buy of 
 him [or to sell t» kirn] certain freehold property [or copyhold, 
 leasehold, or other property, as the case may be"}, therein de- 
 scribed or referred to, for the sum of pounds ; and 
 that he has made or caused to be made an application to 
 the said C. D. specifically to perform the said agreement 
 on his part, but that he has not done so, and the said A. B. 
 therefore claims to be entitled to a specific performance of 
 the said agreement, and to have his costs of this suit ; and 
 for that purpose to have all proper directions given. And 
 he hereby offers specifically to perform the same on his 
 part. 
 
 9. By a person entitled to an account of the dealings and 
 transactions of a partnership dissolved or expired, 
 seeking such account. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice. Chancellor, naming him\, 
 
 or, 
 [Master of the Rolls]. 
 
 Between A. B., Plaintiff. 
 
 C. D., Defendant. 
 
 The claim of A. B. of the above-named plaintiff. 
 
 The said A. B. states, that from the day of 
 
 down to the day of he and the above- 
 
 named C. D. carried on the business of in co- 
 
 partnership, under certain articles of copartnership, dated 
 the ' day of and made between [parties'] 
 
 [or without articles as the case may be]; and he saith that 
 the said partnership was dissolved [or expired, as the case 
 may be,] on the day of and be claims an 
 
 account of^ the partnership dealings and transactions 
 
FORMS. 
 
 between him and the said C. D., and to have the affairs 
 and business of the said partnership wound up and 
 settled under the direction of this Court, and for that 
 purpose that all proper directions maj be given and 
 accounts taken. 
 
 10. By a person entitled 'to an equitable estate or interest, 
 and claiming to use the name of his trustee in pro- 
 secuting an action for his own sole benefit. 
 
 In Chancerjr. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him\, 
 
 or, 
 [Master of the Rolls]. 
 
 Between A. B,, Plaintiff. 
 
 C. D., Defendant. 
 
 The claim of A. B. of the above-named plaintiff. 
 
 The said A. B. states that under an indenture dated the 
 day of , and made between \jparties\ he 
 
 is entitled to an equitable estate or interest in certain 
 property therein described or referred to, and that the 
 above-named defendant is a trustee for him of such pro- 
 perty, and that being desirous to prosecute an action at 
 law against in respect of such property, he has 
 
 made or caused to be made an application to the said 
 defendant to allow him to bring such action in his name, 
 and has offered to indemnify him against the costs of such 
 action, but that the said defendant has refused or neglected 
 to allow his name to be used for that purpose; and the 
 said A. B, therefore claims to be allowed to prosecute the 
 said action in the name of the said defendant, and hereby 
 offers to indemnify him against the costs of such action. 
 
198 
 
 FORMS. 
 
 11, By a person entitled to have a new trustee appointed 
 in a case when there is no power in the instrument 
 creating the trust, to appoint new trustees, or when 
 the power cannot be exercised, and seeking to appoint 
 a new trustee. 
 
 In Chancery. 
 
 [Lord Chancellor}, 
 
 [Vice Chancellor, naming him], 
 
 or, 
 [Master of the Rolls]; 
 
 Between A. B., Plaintiff. 
 C. D., Defendant. 
 
 The claim of A. B. of the above-named plaintiff. 
 
 The said A. B. states that under an indenture dated the 
 day of and made between [parties] [or 
 
 will of or other document, as the case may he\, he 
 
 the said A. B. is interested in certain trust property 
 therein mentioned or referred to, and that the above- 
 named defendant C. D. is the present trustee of such 
 property [or is the^ real or perianal representative of the last 
 surviving trustee of such property, as the case may be] ; and 
 that there is no power in the said indenture [or will or 
 other document] to appoint new trustees [or that the power 
 in the said indenture or other docuirient] to appoint new 
 trustees cannot be executed]; and the said A. B. therefore 
 claims to have new trustees appointed of the said trust 
 property in the place of [or to act in conjunction witK] the 
 said C. D. 
 
FORMS. 
 
 199 
 
 12. By a party entitled to revive or to carry on a suit, and 
 seeking to revive or carry on the suit. 
 
 -In Chancery. 
 
 '[Lord Chancellor], 
 [Vice ChancgUor, naming hiin\, 
 or. 
 As in [Master of the Rolls]. 
 original \ Between A. B., Plaintiff. 
 
 claim. jjjjj 
 
 CD., Defendant. 
 
 ' and 
 
 Title of this claim. Between G. H., PlaintiflF. 
 
 and 
 K. L., Defendant. 
 
 The claim of G. H. of the above-named plaintiff. 
 
 The said G. H. states, that the said A. B. filed his claim in 
 this suit on or about ; that on or about 
 
 the said A. B, died \or became bankrupt or insolvent']; that 
 the said suit, and all proceedings thereunder, have thereby 
 become abated \or defective^, that the said G. H. has 
 become and is the executor [or administrator, or the assignee 
 of the estate and effects'] of the said A. B., and he claims to 
 be entitled to revive the said suit and proceedings [or to be 
 entitled to carry on the said suit and proceedings], and to 
 have all such relief as the said A. B. would have been 
 entitled to if he had lived [or had not become bankrupt or 
 insolvent] ; or that the said C. D, ought to show good cause 
 to the contrary. 
 
 Note. This form may be applied to any case, to which 
 the 2lst Order of the 22nd of April 1850 applies, and 
 may be varied according to the circumstances of each case. 
 
200 
 
 FORMS. 
 
 1. Farm of Order for Payment of a Debt or Legacy (a). 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him], 
 
 or, 
 [Master of the Rolls]. 
 
 Bate. 
 
 Between A. B,, Plaintiff. 
 
 G D., Defendant. 
 
 Upon motion this day made unto this Court by Mr. 
 of counsel for the plaintiff, and upon 
 hearing Mr. of counsel for the defend- 
 
 ant [or upon reading a certificate of an appearance having 
 been entered by the defendant], [or upon hearing an affi- 
 davit of service upon the defendant of the copy claim], and 
 upon reading the claim filed in this cause on the 
 day of [and an affidavit of filed in this 
 
 cause], [or the defendant by his counsel admitting assets of 
 the testator or intestate in the said claim named], this Court 
 doth order that the defendant do, within a month after 
 service upon him of this order, pay to the plaintiff the sum 
 of £, together with interest thereon, at the rate of 
 
 £ per cent, per annum, from the day of 
 
 to the time of such payment, together with the 
 costs of this suit, to be taxed by the Taxing Master in 
 rotation. 
 
 (a) Schedule (C) to the General Order of Court of the 22nd of 
 April 1850. See note, mpra, p. 189, as to obtaining this order by 
 summons at chambers.' 
 
FORMS. 
 
 201 
 
 2. Form of Order on Executor or Administrator to 
 Account, on Claim by a Creditor of Testator or In- 
 testate, (a) 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him'], 
 
 or, 
 [Master of the Rolls.] 
 
 Date. 
 
 Between, A. B., Plaintiff. 
 
 C. D., Defendant. 
 
 Upon motion, &c. [as in Form No. 1] this Court doth 
 declare that all persons who are creditors of the said 
 testator or intestate are entitled to the benefit of this 
 order, and it is ordered that it he referred to the Master 
 of this Court in rotation to take an account of what is due 
 to the plaintiff, and all other the creditors of 
 deceased, the testator \or intestate'] in the plaintiff's claim 
 named, and of^ his funeral expenses: And it is ordered, 
 that the Master do take an account of the personal estate 
 of the said testator \or intestate'] come to the hands of the 
 said defendant, his executor [or administrator], or to the 
 hands of any other person or persons by his order or for 
 his use: And it is ordered, that the said testator's [or 
 intestate's] personal' estate be applied in payment of his 
 debts and funeral expenses in a due course of administra- 
 tion; and. this Court doth reserve the consideration of all 
 further directions, and of the costs of this suit, until after 
 the said Master shall have made his report. 
 
 (o) See note, supra, p. 1 89, as to obtaining this order by summons 
 at chambers. 
 
202 FORMS. 
 
 3. Farm of Order to Account on Claim hy a Legatee, (a) 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, imming h.im\, 
 
 or, 
 [Master of the Rolls]. 
 
 Date. 
 
 Between A. B., a legatee of 1 Pi ' t'tf 
 deceased - " / 
 
 CD. - - Defendant. 
 
 Upon motion, &c. \as in Form No. 1] this Court doth 
 declare, that all persons who are legatees of the said 
 testator are entitled to the benefit of this Order. And it 
 is ordered, that it be referred to the Master of this Court 
 in rotation to take an account of the personal estate not 
 specifically bequeathed of deceased, the testator in 
 
 the plaintiflF's claim named. Come to the hands of the 
 defendant, or to the hands of any other person or persons 
 by his order or for his use: And it is ordered that the 
 said Master do take an account of the said testator's debts, 
 funeral expenses, and of the legacies given by his will. 
 And it is ordered, that the said testator's said personal 
 estate be applied in payment of his funeral expenses and 
 debts in a due course of administration, and then in 
 payment of his legacies. And this Court doth reserve 
 the consideration of all further directions, and of the costs 
 of this suit, until after the said Master shall have made his 
 report. 
 
 (a) See note, supra, p. 189, as to obtaining this order by summons 
 at chambers. 
 
FORMS. 
 
 4. Fffrm of Order to Account on Claim by a Residuary 
 Legatee, or one of several Residuary Legatees, (a) 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him'], 
 
 or, 
 [Master of the Rolls]. 
 
 Pate. 
 
 Between A. B., a residuary | plaintiff! 
 
 legatee of deceased J 
 
 CD. - - Defendant. 
 
 Upon motion, &c. [as in Form No. 1] this Court doth 
 declare, that all the residuary legatees^ named or described 
 in the will of deceased-, the testator named in the 
 
 plaintifi''s claim, are entitled to the benefit of this order, and 
 to attend the proceedings under the same before the Master; 
 and it is referred to the Master to inquire and state to the 
 Court who were the residuary legatees of the testator living 
 at the time of his death, and whether any of them are since 
 dead, and if dead who is or are their legal personal repre- 
 sentative or representatives ; and if the Master shall find 
 that all such residuary legatees, or their legal personal repre- 
 sentatives, have been duly served with writs of summons, he 
 is to proceed to take an account, &c. [as in No. 3, to the end]. 
 
 5. Form of Order to Account on Claim by the next of kin, or 
 one of the next of kin, of an Intestate. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 I^Vice Chancellor, naming him], 
 
 or, 
 [Master of the Rolls]. 
 
 Date. 
 
 Between A. B., Plaintiff. 
 
 C, D., Defendant. 
 
 (a) See note, supra, p. 189, as to obtaining this order Ijy summons 
 at chambers. 
 
 203 
 
204 FORMS. 
 
 Upon motion, &c. [as in Form No. 1] this Court doth 
 declare, that all the next of kin, according to the statutes 
 of distribution, of the intestate named in the plain- 
 
 tiflf's claim, are entitled to the benefit of this order, and to 
 attend the proceedings before the Master under the same ; 
 and it is referred to the Master of this Court in rotation to 
 inquire and state to the Court who were the next of kin, 
 according to the statutes of distribution, of the said 
 living at the time of his decease, and whether any of them 
 are since dead, and if dead, who is or are their legal per- 
 sonal representative or representatives; and if the said 
 Master shall find that such next of kin have been duly 
 served with writs of summons to attend the proceedings 
 ■ before him under this order, then it is ordered, that it be 
 referred to the said Master to take an account of the said 
 intestate's personal estate [usual accounts of personal estate, 
 debts, and funeral expenses, ^c, as in Form No. 3]. ^ 
 
 6. Form of Order for Account of Personal Estate of a 
 Deceased Person on the claim of the Executor or Ad- 
 ministrator, (a) 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him\, 
 
 or, 
 [Master of the Rolls]. 
 
 Date. . 
 
 Between A. B., Plaintiff. 
 C. D., Defendant. 
 
 Upon motion, &c. [as in Form No. 1] this Court doth 
 declare, that all persons interested in the personal estate of 
 the said testator [or intestate] are entitled to the benefit of 
 this Order, and it is ordered that it be referred to the Master 
 to take an account of the testator's [or intestate's^ personal 
 
 (o) See note, supra, p. 189, as to obtamiug this order by summons 
 at chambers. 
 
FORMS. 205 
 
 estate possessed by the plaintiff or by any other person by 
 his order or for his use, and also to take an account of the 
 testator's [or intestate's] funeral expenses, debts, and legacies ; 
 and it is ordered, that such personal estate be applied in a 
 due course of administration in payment of such funeral 
 expenses, debts, and legacies; and any further directions 
 which may be necessary are hereby reserved, &c. 
 
 7. Form of Order of Foreclosure on Claim hy a legal or 
 equitable Mortgagee. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming himl, 
 
 or, 
 [Master of the Rolls]. 
 
 Date. 
 
 Between A. B. Plaintiff. 
 
 C. D. Defendant, 
 
 Upon motion, &c. [as in Form No. 1 ] this Court doth 
 order, that it be referred to the Master of this Court in 
 rotation, to take an account of what is due to the plaintiff 
 for principal and interest on the mortgage [or equitable 
 mortgage] in the plaintiff's claim mentibned : And it is 
 ordered, that it be referred to the Taxing Master in rotation 
 to tax the plaintiff his costs of this suit: And upon the 
 defendant paying to the plaintiff what shall be reported due 
 to him for principal and interest as aforesaid, together with 
 the said costs when taxed, within six months after the said 
 Master shall have made his report, at such time and place as 
 the said Master shall appoint, it is ordered, that the plaintiff 
 [do reconvey ike mortgaged premises in the plaintiff's affidavit 
 of claim mentioned, free and clear of all incumbrances done by 
 him, or any claiming by, from, or under him, and] do deliver 
 up all deeds and writings in his custody or power relating 
 thereto, upon oath, to the said defendant, or to whom he 
 
206 
 
 FORMS. 
 
 shall appoint ; but in default of the defendant paying unto 
 the plaintiif such principal, interest, and costs as aforesaid 
 by the time aforesaid, it is ordered, that the defendant [do 
 stand absolutely debarred and foreclosed of avjd_ from, all 
 equity of redemption' of, in, and to the said mortgaged pre- 
 misesli do convey to the plaintiff the premises comprised in 
 the equitable mortgage in the plaintiff's affidavit of claim 
 mentioned, free and clear of all right, title, interest, and 
 equity of redemption of, in, and to the said premises ; and 
 the Master is to settle the conveyance if the parties differ 
 about the same. 
 
 8. Form of Order of Sale on Claim by a legal or equitable 
 Mortgagee or Person entitled' to a Lien. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him'], 
 
 or, 
 [Master of the Rolls]. 
 
 Date. 
 Between A. B., Plaintiff. 
 
 C. D., Defendant. 
 
 Upon motion, &c. [as in Form No. 1] this Court doth 
 order, that it be referred to the Master of this Court in 
 rotation to take an account of what is due to the plaintiff 
 for principal and interest on the mortgage [or equitable 
 mortgage or lien\ in the plaintiff's claim mentioned: 
 And it is ordered, that it be referred to the Taxing Master 
 in rotation to tax the plaintiff his costs of this suit: And 
 upon the defendaiit paying to the plaintiff what shall be 
 reported due to him- for principal and interest as aforesaid, 
 together with the said costs, within six months after the 
 said Master shall have made his report, at such time and 
 place as the said Master shall appoint, it is orderedj 
 that the plaintiff [do reconney the mortgaged premises iii 
 the ■plaintiff"s affidavit of claim mentioned, free and char of 
 
FORMS. 207 
 
 aU incumbrances done by him, or any claiming by, from, or ' 
 under him, and] do deliver up all deeds and writings in his 
 eustody or power relating thereto, upon oath, to the 
 defendant, or to whom he shall appoint ; but in default 
 of the defendant paying to the plaintiff such principal, 
 interest, and costs as aforesaid, by the time aforesaid, 
 then it is ordered, that the said mortgaged premises [or 
 the premises subject to the said equitable mortgage or lien\ 
 be sold, with the approbation of the said Master : And it 
 is ordered, that the money to arise by such sale be paid 
 into Court to the end that the same may be duly applied 
 in payment of what shall be found due to the plaintiff for 
 principal, interest, and costs as aforesaid ; and this Court 
 doth reserve' the consideration of all further directions 
 until after the said Master shall have made his report. 
 
 9. Form of an Order for Bedemption on Claim by Person 
 entitled to redeem. 
 
 In (!!hancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him'\, 
 
 ■ or, 
 TMaster of the Rolls]. 
 
 Date. 
 
 Between A. B,, Plaintiff. 
 
 C. D., Defendant, 
 
 Upon motion, &c, [as in Form No. 1] this Court doth 
 order, that it be referred to the Master in rotation to take 
 an account of what is due to the defendant for principal 
 and interest on his mortgage [or equitable mortgage or lien] 
 in the plaintiff's claim mentioned : And it is ordered, that 
 it be referred to the Taxing Master in rotation to tax the 
 defendant his costs of this suit : And upon the plaintiff 
 paying to the dpfendgnt what shall be reported due to him. 
 for principal and interest, together with such costs, when 
 
^^^ lORMS. 
 
 taxed, within six months after the said Master shall have 
 made his report, at such time and place as the said Master 
 shall appoint, this Court doth order, that the defendant do 
 reconvey the mortgaged premises [or deliver up possession of 
 the property subject to the equitable mortgage or lien] in the 
 plaintiff's claim mentioned, free and clear from all incum- 
 bralices done by him, or any claiming by, from, or under 
 him, and do deliver up all deeds and writings in his cus- 
 tody or power relating thereto, upon oath, to the plaintiff 
 or to whom he shall appoint, but in default thereof the 
 plaintiff's said claim is to stand dismissed out of this Court, 
 with costs, to be taxed by the said Taxing Master, and to 
 be paid by the plaintiff to the defendant. 
 
 10. Fwm of Order of Reference of Title, on Claim of 
 Persons seeking Specific Performance. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming Am], 
 
 or, 
 [Master of the Rolls]. 
 
 Date. 
 Between A. B., Plaintiff. 
 
 C. D., Defendant. 
 Upon motion, &c. \as in Form No.- 1] this Court doth 
 order, that it be referred to the Master of this Court in 
 rotation to inquire whether a good title can be made to 
 the property comprised in the agreement in the said 
 plaintiff's claim mentioned ; and in case the said Master 
 shall be of opinion that a good title can be made, it is 
 ordered, that he do state at what time it was first shown 
 that such good title could be made ; and this Court doth 
 reserve the consideration of all further directions, and of 
 the costs of this suit, until after the said Master shall have^ 
 made his report. 
 
 Note. The inquiry as to the title, instead of being referred to the 
 Master, will now be conducted by the chief cleft: at chambers ; 
 who will take the opinion of one of the conveyancing counsel and 
 certify the result. See form of such certificate, mpra. Appendix of 
 Forms, p. 182 ; and see as to the course of proceeding in such cases, 
 supra, (Siapter IX, on " Business at Chambers." 
 
FORM?. 
 
 1 1 . Form of Order for an Account of Partnership Dealings 
 and Transactions on Claim of Person entitled to the 
 Account. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming hirn\, 
 
 or, 
 [Master of the Rolls]. 
 Date. 
 
 Between A. B., Plaintiff. 
 
 C. D., Defendant. 
 
 Upon motion, &c. \as in Form No. 1] this Court doth 
 order, that it be referred to the Master of this Court in 
 rotation to take an account of the partnership dealings 
 and transactions between the plaintiff and the defendant 
 from the day of : And it is ordered, that 
 
 what upon taking the said account shall be found due from 
 either of the said parties to the other of them be paid by 
 the party from whom to the party to whom the same shall 
 be found due ; and this Court doth reserve the considera- 
 tion of all further directions, and of the costs of this suit, 
 until after the said Master shall have made his report. 
 
 12. Form of an Order on Claim by a Person claiming to use 
 the Name of his Trustee. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him], 
 
 or, 
 [Master of the Rolls]. 
 Date. 
 
 Between A. B., Plaintiff 
 
 C. D., Defendant. 
 
 209 
 
210 
 
 FORMS. 
 
 Upon motion, &c. [as in Form JVo. 1] this Court doth 
 order, that the plaintiff be at liberty to use the name of 
 the defendant in prosecuting the action at law in the 
 plaintiff's claim mentioned, on indemnifying the defendant 
 against the costs of such action : And it is ordered, that it 
 be referred to the Master of this Court in rotation to settle 
 the indemnity to be given by the plaintiff to the defendant, 
 in case the parties differ about the same. 
 
 13. Form of Order on Claim for the Appointment of new 
 Trustees. 
 
 In Chancery. 
 
 [Lord Chancellor], 
 
 [Vice Chancellor, naming him], 
 
 or, 
 [Master of the Rolls]. 
 
 Bate. 
 
 Between A. B., Plaintiff. 
 
 C, D., Defendant. 
 
 Upon motion, &c. [as in Form No. 1] this Court doth 
 order, that it be referred to the Master of this Court in 
 rotation to appoint proper persons to be new trustees 
 
 under the indenture [or will or other instrument'] in the 
 plaintiff's claim mentioned, in the place of [or to act in 
 conjunction with] the defendant : And it is ordered, that 
 the defendant do convey [assign or transfer] the trust 
 fund or property [referring to it] to such new trustees [or 
 Tobeomit- so OS to vest the same in such new trustees Jointly loith him- 
 ted in the ^g/^i yp^jj (ijg trusts of the said indenture [or will or other 
 
 ease of m- , ■' -" ^ u r »u ■ . . ""■"" 
 
 fants or document], or such oi tnem as are now subsisting and 
 charities, capable of taking effect, and they are to declare the trust 
 
FOHMS. 211 
 
 thereof accordingly, such conveyance [or assiffnment] to Tobeomit- 
 
 be settled by the said Master, in case the parties differ ted where 
 
 about the same : [And it is ordered, that the defendant do *„* i/oon-" 
 
 deliver over to such iiew trustees all deeds and toritings in his tinued a 
 
 custody or power relating to the said trust property,'] trustee. 
 
 p2 
 
212 
 
 COSTS. 
 
 C S T S. (a) 
 
 Receiver'' s costs. Plaintiff's costs on passing receiver's ac- 
 count. Defendant's costs. Plaintiff's costs of motion by 
 defendant to vary order, allowing with costs exceptions to 
 answer for insufficiency. Costs of two successive hearings 
 of motion before the Lords Justices and before the Vice 
 Chancellor. Defendant's costs on refusal of motion for 
 injunction and subsequent dismissal of bill. 
 
 COSTS ON PASSING RECEIVERS ACCOUNTS. 
 
 I, Receivers Costs.- 
 
 Easter Term, 1853. 
 
 £ s. d. 
 
 Copy order directing the receiver's accounts to 
 be passed before the judge at chambers, 10 
 sides - - - - 6 8 
 
 Preparing summons to proceed upon the order, 
 and attending to get same filled up and sealed 
 
 Paid for stamp and paper 
 
 Copy summons to leave at chambers 
 
 Three copies to serve - - . 
 
 Three services thereof - - _ 
 
 (a) The above Form of a Receiver's Costs has been, lately approved 
 at the Rolls. It is believed that no Form of a Receiver's Costs, under 
 the New Practice, has yet been published. Two bills of costs on in- 
 . terlocutory applications,as lately taxed by the Taxinfr Master, have been 
 added ; but no general costs of suit, on account of the length to which 
 it would extend the limits of this work See, however. Orders of 
 Court of the 22nd of March 1851, and the 23rd of October 1852, 
 
 
 
 6 
 
 8 
 
 
 
 3 
 
 5 
 
 
 
 2 
 
 
 
 
 
 6 
 
 
 
 
 
 7 
 
 6 
 
COSTS. 213 
 
 £ s. d. 
 Attending same ; receiver's account directed to 
 
 be brought in - - - 6 8 
 
 N.B. — After the first account the above charges will be 
 omitted. 
 
 £ s. d. 
 Drawing second receiver's account, and copy for 
 
 the judge, 20 foUos - - - 13 4 
 Preparing summons to proceed on the account, 
 
 and attending to get same filled up and sealed 6 8 
 
 Paid for stamp and paper - - 3 5 
 
 Copy summons to leave at chambers - 2 
 
 Three copies to serve - - - 6 
 Three services thereof - -026. 
 Attending summons, amount paid on and 
 
 allowed - - - - 13 4 
 Entering the amount in the judge's book - 6 8 
 The like in receiver's book - - 6 8- 
 Drawing affidavit verifying the account, 4 folios 4 
 Engrossing same - - - 1 4 
 Writing to receiver with account and affidavit 3 6 
 Attending receiver to be sworn to affidavit veri- 
 fying the account - - 6 8 
 Paid oath - - - 1 6 
 Paid filing 2s. Qd., and 4 folios office copy, \sAd. 3 10 
 Close copy certificate allowing account, 6 folios 2 
 Attending to settle same - 6 8 
 Transcribing certificate, 6 folios - - 2 
 Paid stamping IZ.; add sale duty on 782/. 10s. 3rf., 
 
 3Z. 10s. - - - 4 10 
 
 Attending to get stamp affixed - - 6 8 
 
 Attending to get certificate signed - 6 8 
 Attending to bespeak and procure office copj' 
 
 certificate - - - - 6 8 
 
 Paid for office copy - - - 2 
 
 Drawing this. bill of costs and copy, 10 folios 6 8 
 
 Attending leaving same - - - 6 8 
 Attending the accountant general to bespeak and 
 for his directions for payment of receiver's 
 
 balance into court - - - 6 8 
 
 Attending at the bankers to receive balance - 6 8 
 Attending at the bank to pay in same and after- 
 wards to file cashier's receipt and of office copy 
 
 thereof, and of accountant general's certificate 6 8 
 
214 
 
 COSTS. 
 
 Paid stamp for office copy 
 Letters, &c. - 
 
 £ s. d. 
 2 
 5 
 
 II. Plaintiff's Costs on passing Receiver's Account. 
 
 Easter Term, 1853. 
 
 Attending summons to proceed on order direct- 
 ing the receiver's account to be passed before 
 the judge - - 
 
 N.B. — After the first account the above charge 
 will be omitted. 
 
 Paid for copy receiver's account, 20 folios 
 
 Attending summons to proceed thereon when 
 the account was passed and allowed 
 
 Paid for copy certificate allowing the account, 
 6 folios - - . _ 
 
 Close copy - - - - 
 
 Attending to settle certificate 
 
 Drawing this bill of costs and copy, 5 folios - 
 
 Attending to settle same 
 
 Paid for copy receiver's costs, 10 folios 
 
 Attending to settle same 
 
 Paid for copy defendant A. B., 5 folios 
 
 Attending to settle same 
 
 Letters, &c. . . - 
 
 £ s. d. 
 
 6 8 
 
 
 
 6 
 
 8 
 
 
 
 13 
 
 4 
 
 
 
 2 
 
 
 
 
 
 2 
 
 
 
 
 
 6 
 
 8 
 
 
 
 3 
 
 4 
 
 
 
 6 
 
 8 
 
 
 
 3 
 
 4 
 
 
 
 6 
 
 8 
 
 
 
 1 
 
 8 
 
 
 
 6 
 
 8 
 
 
 
 5 
 
 
 
 III. defendant's costs on passing receiver's accounts. 
 The same as plaintiff's 
 
COSTS. 215 
 
 The following two bills of costs are made out and 
 taxed as between party and party. 
 
 In Chancery. 
 
 Between T. B. - Plaintiff, 
 
 and 
 J. T. - - Defendant. 
 
 The bill of costs of the plaintiff upon the motion of 
 the defendant to vary order of the Vice Chancellor 
 Kindersley, allowing exceptions to answer for in- 
 suflBciency. 
 
 Hilary Term, 1853. 
 
 d. 
 
 March 14. The defendant's solicitors having 
 written us returning warrants- to tax served in 
 this cause and threatening proceedings, writing 
 him thereon and reserving warrants - 3 6 
 
 March 15. The defendant having served notice 
 of motion before the Lords Justices (a) that 
 the answer made in this cause might be 
 discharged, attending searching for affidavits 
 filed in support and for entry of the order 
 made in registrar's -book - - 6 8 
 
 Attending looking up the copies of the bill, 
 answer, &c. locked with secretary on excep- 
 tions to save expenses of fresh copies 
 
 Drawing brief, 2 sheets 
 
 Two fair copies . . _ 
 
 Two cepies notice of motion to annex 
 
 Fee to Mr. L. with brief thereon 
 
 Attending him . _ . 
 
 Fee to Mr. W. therewith 
 
 Attending him _ . . 
 
 (o) N.B. — The Lords Justices heard the motion for the Vice Chan- 
 cellor Kindersley, who was unable to attend Court. 
 
 
 
 6 
 
 8 
 
 
 
 13 
 
 4 
 
 
 
 13 
 
 4 
 
 
 
 2 
 
 
 
 3 
 
 5 
 
 6 
 
 
 
 6 
 
 8 
 
 2 
 
 4 
 
 6 
 
 
 
 6 
 
 8 
 
216 
 
 £ 
 
 COSTS, 
 
 £ s. d. 
 
 
 
 13 
 
 4 
 
 
 
 3 
 
 4 
 
 
 
 6 
 
 8 
 
 
 
 6 
 
 
 
 
 
 2 
 
 
 
 
 
 6 
 
 8 
 
 
 
 1 
 
 6 
 
 
 
 6 
 
 8 
 
 
 
 2 
 
 6 
 
 
 
 2 
 
 
 
 
 
 6 
 
 8 
 
 March 16. The plaintiff having filed an affidavit 
 after the briefs delivered and on the evening 
 before motion in support of motion, making 
 two briefs of same, 2 sheets each 
 
 Attending counsel therewith 
 
 Instructions for affidavits in answer 
 
 Drawing same, 6 folios 
 
 Fair copy _ _ - 
 
 Attending reading over and to be sworn 
 
 Paid oath - - 
 
 Attending to file and bespeaking office copy 
 and afterwards for same the motion being ap- 
 pointed for this morning 
 
 Paid filing - - 
 
 Paid for office copy _ _ - 
 
 Making 2 briefs thereof 
 
 Attending Court, motion heard, when same 
 was directed to be reheard before Vice Chan- 
 cellor Kindersley, at such time and in such 
 manner as he should appoint - - 13 4 
 
 Attending registrar making from his bookacopy 
 of the note of the order pronounced by Lords 
 Justices, and ascertaining when the Vice 
 Chancellor would attend - - 6 8 
 
 Easter Terra, 1853. 
 
 April 15. Drawing instructions to counsel to 
 
 argue motion before Vice Chancellor 
 Two fair copies, 1 sheet each 
 April 12. Fee to Mr. L. with brief 
 Attending him _ . . 
 
 The like to Mr. W. - 
 Attending him - - 
 
 Instructions to counsel to apply to Court and 
 
 get motion appointed - - 6 8 
 
 Attending Court, motion made, and first day 
 
 of term appointed for argument - 13 4 
 
 Notice thereof to defendant's solicitor, copy and 
 
 service - - 4 
 
 April 15. Attending Court, uioliou argued 13 4 
 
 
 
 6 
 
 8 
 
 
 
 6 
 
 8 
 
 2 
 
 4 
 
 6 
 
 
 
 6 
 
 8 
 
 1 
 
 3 
 
 6 
 
 
 
 6 
 
 8 
 
COSTS. 217 
 
 £ s. d. 
 April 18. Attending Court, motion dismissed 
 
 with costs - - - 13 4 
 
 Cab hire with papers - - - 2 
 
 Attending to draw up order - - 6 8 
 
 Making copy order for the Master - 3 
 
 Attending certifying same and lodging it - 6 8 
 
 Drawing bill of costs and copy, 8 folios - 5 4 
 
 Warrant on leaving copy and service - 5 6 
 
 The like to tax - - - 5 6 
 
 Attending taxing - - - 6 8 
 
 Paid for Master's certificate - - 1110 
 
 Entering and office copy - per folio 4 
 
 Attending to file same - - 6 8 
 
 Letters, messages, &c. - - - 5 
 
COSTS. 
 
 In Chancery. 
 
 Between A. B. - - PlaintiflF, 
 
 and 
 C. D. and others, - Defendants. 
 
 Bill of costs of the defendants on motion for injuiiction, 
 to be taxed under Order of 9th of July 1853. 
 
 Trinity Term, 1853. 
 
 £ s. d. 
 Instructions to appear for defendants G. F. and 
 
 H. F. - - - - 6 8 
 
 Paid entering appearance - - 7 
 
 Notice - - - - 2 6 
 
 Paid for 6 prints of the bill - per folio 1^ 
 
 Perusing same - • - I 1 
 
 Paid for copy affidavit in support of bill per folio 4 
 
 Two copies of the affidavit for -counsel - 1 13 4 
 
 Drawing observations, 2 B. S. - - 13 4 
 
 Two copies for counsel - - 13 4 
 Two copies of notice of motion to annex to 
 
 briefs - - - 3 4 
 
 Attending Mr. B. with brief - - 6 8 
 
 Paid his fee and clerk - - - 3 5 6 
 
 Attending Mr, T. with brief - - 6 8 
 
 Paid his fee and clerk - - 2 4 6 
 
 Attending counsel severally to fix consultation 13 4 
 
COSTS. 
 
 219 
 
 d. 
 
 Paid Mr. B. consultation fee and clerk 
 
 The like Mr. T. and clerk 
 
 Attending at the town clerk's office, bespeaking 
 
 copy of feoffment on the constriiction of the 
 
 covenants in which the case for the injunction 
 
 turned, and afterwards for copy - 
 Making a second copy for counsel per folio 
 
 June 11th. Attending consultation 
 Attending Court when motion ordered to stand 
 
 over at request of counsel, till first seal after 
 
 Term on the 21st 
 Attending Mr. , the original planner of the 
 
 Square, to ascertain the state of the square 
 
 when the club was built 
 June 20th. Attending Mr. T. to fix conferertce 
 
 on evidence _ _ - 
 
 Paid him conference fee and clerk 
 Attending conference - - 
 
 Paid for copy affidavit of F. A. in support of 
 
 motion, 4 folios - - . 
 
 The like of affidavit of R. W., 10 folios 
 Two brief copies of these affidavits for counsel 
 Instructions for affidavit of J. C. 
 Drawing same, 5 folios - - - 
 
 Engrossing - - - - 
 
 Attending to swear . - - 
 
 Paid oath _ - - - 
 
 Instructions for affidavit of T. W. - 
 Drawing same, 3 folios - - 
 
 Engrossing - 
 
 Attending to swear . ' - 
 
 Paid oath 
 
 Instructions for affidavit of J. D. - 
 Drawing same, 9 folios - - 
 
 Engrossing - - - " 
 
 £ s. d. 
 2 9 6 
 1 .3 6 
 
 6 
 
 8 
 
 
 
 4 
 
 13 
 
 4 
 
 13 
 
 4 
 
 6 8 
 
 
 
 6 
 
 8 
 
 1 
 
 6 
 
 
 
 
 
 13 
 
 4 
 
 
 
 1 
 
 4 
 
 
 
 3 
 
 4 
 
 
 
 13 
 
 4 
 
 
 
 6 
 
 8 
 
 
 
 5 
 
 
 
 
 
 1 
 
 8 
 
 
 
 6 
 
 8 
 
 
 
 1 
 
 6 
 
 
 
 6 
 
 8 
 
 
 
 3 
 
 
 
 
 
 1 
 
 
 
 
 
 6 
 
 8 
 
 
 
 2 
 
 6 
 
 
 
 6 
 
 8 
 
 
 
 12 
 
 ()■ 
 
 
 
 4 
 
 
 
220 
 
 COSTS. 
 
 Attending to swear _ - - 
 
 Paid oath and 4 exhibits 
 Instructions for affidavit of J. D. 
 Drawing same, 3 folios - - 
 
 Engrossing 
 Attending to swear 
 
 Paid oath - . - . 
 
 Instructions for affidavit of W, W. 
 Drawing same, 2 folios 
 Engrossing - - 
 
 Attending to swear 
 Paid oath - - 
 
 Instructions for affidavit of A. S. - 
 Drawing same, 2 folios - - - 
 
 ' Engrossing - - - 
 
 Attending to swear _ _ . 
 
 Paid oath - - . - 
 
 Instructions for affidavit of R. B. 
 Drawing same, 2 folios - 
 Engrossing - - - - 
 
 Attending to swear - . _ 
 
 Paid oath - - 
 
 Instructions for affidavit of H. F. 
 Drawing same, 4 folios - - 
 
 Engrossing - - - 
 
 Attending to swear 
 
 Paid oath - . - . 
 
 Making copies of the last 8 affidavits for office 
 
 copies to save time, in all folios 
 Making 2 copies thereof for counsel, 4 brief 
 
 sheets each . _ . 
 
 Drawing further observations, 1 brief 
 Two copies for counsel 
 Attending Mr. B. with additional brief 
 Paid his fee clerk 
 
 I 
 
 s. 
 
 d. 
 
 
 
 6 
 
 8 
 
 
 
 8 
 
 6 
 
 
 
 6 
 
 8 
 
 
 
 3 
 
 
 
 
 
 1 
 
 
 
 
 
 6 
 
 8 
 
 
 
 1 
 
 6 
 
 
 
 6 
 
 8 
 
 
 
 2 
 
 
 
 
 
 
 
 8 
 
 
 
 6 
 
 8 
 
 0' 
 
 2 
 
 6 
 
 
 
 6 
 
 8 
 
 
 
 2 
 
 
 
 
 
 
 
 8 
 
 
 
 6 
 
 8 
 
 
 
 2 
 
 6 
 
 
 
 6 
 
 8 
 
 
 
 2 
 
 
 
 
 
 
 
 8 
 
 
 
 6 
 
 8 
 
 
 
 2 
 
 6 
 
 
 
 6 
 
 8 
 
 
 
 4 
 
 
 
 
 
 4 
 
 
 
 
 
 6 
 
 8 
 
 
 
 1 
 
 6 
 
 1 
 
 6 
 
 8 
 
 
 
 6 
 
 8 
 
 
 
 6 
 
 8 
 
 
 
 6 
 
 8 
 
 1 
 
 3 
 
 6 
 
COSTS. 
 
 221 
 
 The like Mr. T. 
 
 Attending him _ _ . 
 
 June 21st: Paid filing and for office copy 
 
 affidavit of C. - 
 
 The like T. W. - 
 
 The like J. D. 1st affidavit 
 The like W. W. 
 The like A. S. 
 
 The like R. B. - - 
 
 The like H. F. 
 
 Paid for stamping affidavit of J. D. 
 Defendant F. having been served with notice 
 
 to produce plans, &c., attending the committee 
 
 of the club, and obtained from them such as 
 
 they had, and got their instructions to produce 
 
 same - - 
 
 Attending Court, motion made and refused with 
 
 costs . . . - 
 
 June 24th. Paid for the order refusing motion 
 
 Attending to pass and enter 
 
 Plaintiff's agents having served us with copy 
 
 - interrogatories, and that they required an 
 
 answer, making copy of the interrogatories, 
 * 45 folios, at per folio 
 July 9th. Plaintiff's agents having served order 
 
 to dismiss bill drawing this bill and copy, 
 folios - . - - 
 
 Paid charges for copy, feoffment, &c. 
 Paid Mr. D.'s charges for plans referred to by 
 
 his affidavit _ _ . 
 
 Warrant on leaving bill for taxation, copy and 
 
 service - - 
 
 The like to tax 
 Attending taxing - - - 
 
 £ 
 
 s. 
 
 d. 
 
 1 
 
 3 
 
 6 
 
 
 
 6 
 
 8 
 
 
 
 4 
 
 2 
 
 
 
 3 
 
 6 
 
 
 
 5 
 
 6 
 
 
 
 3 
 
 2 
 
 
 
 3 
 
 2 
 
 
 
 3 
 
 2 
 
 
 
 5 
 
 10 
 
 
 
 2 
 
 6 
 
 13 4 
 
 13 4 
 
 1 
 6 8 
 
 10 
 
 2 13 4 
 
 9 3 9 
 
 5 6 
 
 5 6 
 
 6 8 
 
222 COSTS. 
 
 £ s. (1. 
 Engrossing certificate, Srf. per folio 
 
 Attending to file - - - 6 .8 
 
 Paid filing and for oflBc6 copy • - 
 Term fee - - - - 15 
 
PLEADINGS. 223 
 
 APPENDIX OF PLEADINGS. 
 
 Bill for the Administration of the Estate of a Deceased 
 Party by one Residuary Legatee, the others being paid. 
 
 « 
 In Chancery. 
 
 Lord Chancellor. 
 Vice Chancellor Wood. 
 
 Martha Holland East - Plaintiff. 
 
 Edward Fleming and William Henry 
 
 rierhing - - - Defendants. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, B^ron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship Martha 
 Holland East, of Ashford, in the county of Kent, spinster, 
 the above named plaintiff, as follows: — 
 
 1. William Frederick East, late of Croom's Hill, Green- 
 wich, in the county of .Kent, gentleman, deceased^ being- 
 seised and possessed of certain freehold, copyhold and 
 leasehold estates, and being also possessed of other personal 
 estate, duly made and published 'his will, bearing date the 
 tenth day of December one thousand eight hundred and 
 thirty-three, and executed and attested by him as was then 
 required by law for rendering valid devises of freehold 
 estates, whereby after making certain specific devises and 
 bequests as therein mentioned, he gave, devised and be- 
 queathed all the rest, residue and remainder of his real and 
 personal estate, property and effects unto his wife Elizabeth 
 East and Edward Fleming, their heirs, executors, adminis- 
 trators and assigns, upon trust as soon as conveniently 
 
224 PLEADINGS. 
 
 might be after his decease, either by public auction or 
 private contract, to sell and absolutely dispose of the same 
 estates, property and effects thereinbefore bequeathed in 
 trust, which should not consist of cash or money in the 
 funds or otherwise, to convert the said estates, property and 
 effects into money, with such powers to convey and assure 
 the same estates and property respectively, and to give 
 receipts to the respective purchasers thereof as therein 
 mentioned: And the said testator did thereby will, direct 
 and declare that his said trustees and the survivor of them, 
 his or her heirs, executors or administrators should stand 
 possessed of the monies to arise from such sale or sales, or 
 by such conversion of his said estate and effects into money 
 as aforesaid, and also of the said cash and money in the 
 funds upon trust, with all convenient speed after such sale 
 or sales as aforesaid, after deducting all necessary costs, 
 charges and expenses attending the said sale or sales, and 
 the- execution of the trusts of his said will, to add the 
 same to his said stock in the public fimds, or to lay out and 
 invest the same in the public stocks, fimds or securities of 
 this kingdom in their joint names, with power to alter or 
 vary the same, and upon further trust to pay to or permit 
 and suffer his said wife Elizabeth East to receive, take and 
 retain the dividends, interest and annual produce of the 
 said stocks or funds during her life, and from and after her 
 decease, upon trust to pay and apply the whole of the divi- 
 dends, interest and annual proceeds of the said stocks or 
 funds so invested or to be invested as aforesaid, or any part 
 or parts thereof, in the discretion of his said trustees or 
 trustee, for and towards the maintenance, support and edu- 
 cation of his six children, William Frederick East, John 
 Barton East, Mary East, Priscilla East, Sarah Ann East, 
 and the plaintiff Martha Holland East, and also of his after 
 born children (if any) during their several and respective 
 minorities : And when and as each of his said six children 
 and the said afterborn children should after the decease of 
 his said wife attain their respective ages of twenty-one 
 years, and provided they attained that age, upon trust to 
 pay, transfer, assign and divide the said stocks, funds and 
 securities unto and equally between his said children, the 
 said William Frederick East, John Barton East, Mary 
 East, Prjscilla East, Sarah Ann East, and the plaintiff 
 Martha Holland East, and such afterborn children as afore- 
 said, upon their attaining and when and as they should 
 
PLEADINGS. 225 
 
 severally and respcctivelj' arrive at or attain the age or 
 ages of twenty-one years, share and share alike, according 
 to their apparent share or shares thereof, to and for his. and 
 their own absolute use and benefit : And in the said will 
 was contained a proviso that if his said trustees or .trustee 
 should think proper after the decease of his said wife to 
 pay and apply only a portion of the dividends, interest and 
 annual proceeds of the said trust stocks, for and towards 
 the maintenance and education of his said children, then 
 he did thereby direct his said trustees or trustee to invest 
 the residue of such dividends, interest and annual proceeds 
 which should not be so' applied as aforesaid, and add the 
 same to the said trust stocks, funds and securities : and he 
 also provided for the advancement in the world of his said 
 children or afterbom children during their minorities, and 
 directed that the share or shares of his said daughters should 
 be for their separate use respectively during coverture, in 
 manner therein mentioned ; and the said testator thereby 
 appointed his said wife, Elizabeth East, and the said Edward 
 Fleming, executrix and executor of his said will. 
 
 2. The said William Frederick East died on the thirtieth 
 day of June, one thousand eight hundred and thirty-five, 
 without having revoked or altered his said will, and the 
 same was proved by the said Elizabeth East and Edward 
 Fleming in the Prerogative Court of the Archbishop of 
 Canterbury on the first day of August, one thousand eight 
 hundred and thirty-five. 
 
 3. The said testator had not any child born after the 
 date and execution of his said will, and he left the said 
 William Frederick East, John Barton East, Mary East, 
 Priscilla East, Sarah Ann East, and the plaintifiF Martha 
 Holland East, his said six children named in his will, him 
 surviving, all of whom have since attained the age of 
 twenty-one years. 
 
 4. The said Elizabeth East, the widow of the said 
 testator, subsequently intermarried with Robert West Hyde, 
 and died on or about the seventh day of August, one 
 thousand eight hundred and forty-six, leaving the said 
 Edward Fleming the sole surviving trustee and executor of 
 the said will of the said testator William Frederick East. 
 
 5. The said Elizabeth East, and the said Edward 
 Fleming, or the said Edward Fleming alone, after the 
 decease of the said Elizabeth East, sold all the real estates 
 
"^" PLEADINGS. 
 
 of the said testator and received the purchase-monies 
 thereof. 
 
 6. The said Edward Fleming died on or about the eighth 
 day of March, one thousand eight hundred and fifty, having 
 first made and duly executed his last will and testament in 
 writing, dated the eighth day of September, one thousand 
 eight hundred and forty-eight, and thereof appointed his 
 wife Harriet Rebecca Fleming, and his two sons, the de- 
 fendants Edward Fleming and William Henry Fleming, the 
 executrix and executors, who duly proved the. same will in 
 the Prerogative Court of the Archbishop of Canterbury on 
 or about the twentieth* day of April, one thousand eight 
 hundred and fifty, and possessed themselves of the personal 
 estate of the said Edward Fleming, deceased, to a consider- 
 able amount. 
 
 7. The said Harriet Rebecca Fleming died on or about 
 the nineteenth day of March, one thousandeight hundred 
 and fi^fty-two, leaving the said defendants Edward Fleming 
 and William Henry Fleming the surviving executors of the 
 will of the said Edward Fleming deceased, and the legal per- 
 sonal representatives of the said testator William Frederick 
 East; and the said defendants thereupon possessed thein- 
 selves of all the personal estate of the said Edward Fleming, 
 deceased. 
 
 8. In the year one thousand eight hundred and forty - 
 seven, all the said six children of the testator William 
 Frederick East (excepting the plaintiflf Martha Holland 
 East) had attained their respective ages of twenty-one years, 
 and in the same year the said Edward Fleming, deceased, 
 made out and settled an account of the said testator's estate 
 with the said five residuary legatees under the will of the 
 said William Frederick East, who had attained the age of 
 twenty-one years, whereby it appeared that the whole of 
 the said testator's residuary estate had been converted into 
 money, except twelve shares in the Sun Fire OflBce, and 
 that each of his residuary legatees was entitled to the sum 
 of nine hundred and thirteen pounds seven shillings, and 
 to two of the said shares in the Son Fire OflSce ; and the 
 said Edward Fleming, deceased, accordingly paid to each 
 of the said other residuary legatees of the said William 
 Frederick East, or those claiming under them, the said 
 sum of nine hundred and thirteen pounds seven shillings, 
 or otherwise accounted with each of them for the same 
 sum, and also transferred to each of them two shares in the 
 
PLEADINGS. 227 
 
 Sun Fire Office, and the said five residuary legatees exe- 
 cuted a release to the said Edward Fleming, dated the 
 twenty-third day of September, one thousand eight hundred 
 and forty-seven, of all claims and demands in respect of 
 their shares of the said testator's estate. 
 
 9. The said Edward Fleming retained in his hands or 
 under his control, the share of the {)laintifF in the said tes- 
 tator's estate, which, on the footing of the said account, 
 amounted to the like sum of nine hundred and thirteen 
 pounds seven shillings, and also the plaintiff's two shares 
 in the Sun Fire Office. 
 
 10. The plaintiff was 'also entitled to a further sum of 
 Stock, amounting to sixty-seven pounds, or thereabouts, 
 standing in the name of the said Edward Fleming, which 
 had arisen from the accumulations of the income of her 
 share of the said testator's property not expended for her 
 maintenance. 
 
 11. The plaintiff, Martha Holland East, attained the age 
 of twenty-one years on the twenty-second day of Decem- 
 ber, one thousand eight hundred and fifty-one. 
 
 12. The plaintiff is willing to adopt the account so set- 
 tled and agreed upon between the said Edward Fleming 
 and the said other residuary legatees of the said testator, 
 and has frequently applied to the said Edward Fleming, 
 and William Henry Fleming, for payment of the monies 
 coming to her on the footing of such account, and for a 
 transfer to her of the said two shares in the Sun Fire 
 Office, and of the said sum of stock; but they have not 
 made any such payment or transfer. 
 
 13. The only sums which have been paid or applied for 
 the plaintiff's maintenance or benefit, on account of her 
 share in the residuary estate of the said testator, William 
 Frederick East, since the settlement of such account as 
 aforesaid, are three sums of ten pounds, twenty-five pounds, 
 and fifty pounds, respectively paid in the years one thou- 
 sand eight hundred and fifty, one thousand eight hundred 
 and fifty-one, and one thousand eight hundred and fifty- 
 two. 
 
 14. The defendants allege that they are unable to satisfy 
 the plaintiff's share of the said testator's estate by reason 
 that the said Edward Fleming sold part of the said testator's 
 leasehold estate to the said testator's eldest son, William 
 Frederick East, and did not receive the purchase-money 
 for the same, 
 
 q2 
 
228 
 
 PLEADINGS. 
 
 15. If such allegation be according to the fact, then the 
 said Edward Fleming was guilty of a breach of trust, and 
 wilful neglect and default in making such sale, and not 
 receiving such purchase-money ; and at all events he ought 
 not to have paid the shares of the other residuary legatees 
 to them without retaining and investing on account of the 
 plaintiff's share of the residuary estate of the said testator, 
 an amount equal to the sums paid to the other residuary 
 legatees ; and the estate of the said Edward Fleming is 
 liable to the plaintiff for her share of the said estate, on the 
 footing of the said account, in which the purchase monies of 
 the said leasehold estates are included as part of the testa- 
 tor's assets, possessed by the said Edward Fleming, and 
 distributable among his residuary legatees. 
 
 16. The defendants, Edward Fleming and William Henry 
 Fleming, had formerly, and have now, in their possession, 
 custody, or power, or in the possession, custody, or power 
 of their solicitors or agents, the said account, or a copy 
 thereof^ and divers accounts, books, receipts, vouchers, 
 legacy duty receipts, valuations, estimates, letters, deeds, 
 and documents, and divers copies of, and extracts from, 
 such several particulars, and divers other papers and writings 
 relating to the estates of the said William Frederick East, 
 deceased, and Edward Fleming, deceased, respectively, and 
 otherwise connected with, mentioning, referring, or relating 
 to, or showing the truth of the matters herein stated, which 
 they refuse to produce. 
 
 ■ PRAYER. 
 
 The plaintiff prays as follows : 
 
 1. That the said sum oi nine hundred and thirteen 
 pounds seven shillings, or iis equivalent value accord- 
 ing to the present price of stocks, together with all 
 arrears of interest or dividends thereon, may be paid 
 to her, and that the said two shares in the Sun Fire 
 Office, and the said sum of stock so invested in respect 
 of accumulations as aforesaid, may be respectively trans- 
 ferred to her, and that all sums due for the past divi- 
 dends on the same two shares and stock respectively 
 may be paid to her, or otherwise that such directions 
 may be given and accounts taken as this Honourable 
 Court shall think fit for ascertaining and securing to 
 the plaintiff her share in the said residuary, real and 
 
PLEADINGS. 
 
 229 
 
 personal estate of the said testator, and the proceeds 
 thereof, and in taking such accounts that the estate of the 
 said Edward Fleming, deceased, may be charged with 
 the purchase monies of the said leasehold premises, 
 whether in fact received by him or not, and with all 
 other the personal estate of the said testator received 
 by him, or which without his wilful default he might 
 have received. 
 
 2. That the said Edward Fleming and William Henry 
 Fleming may admit assets of the said Edward Fleming, 
 deceased, sufficient for the purpose of this suit, or that 
 his personal estate may be administered in the usual 
 manner for payment of the amount due to the plaintiff 
 in respect of her share of the said testator's estate. 
 
 3. That the plaintiff may have such further or other . 
 relief as the nature of the case may require. 
 
 The defendants to this Bill of Complaint are, 
 Edward Fleming. 
 William Henry Fleming. 
 
 Name of Counsel. 
 
 J. V. Prior. 
 
 Claim by a Bond Creditor for the Administration of a 
 Testator's Real and Personal Estate. 
 
 In Chancery. 
 Lord Chancellor. 
 Vice Chancellor Stuart. 
 
 David Edwards - Plaintiff. 
 
 Charles Edwards - - Defendant. 
 
 TTIE CLAIM 
 
 Of David Edwards, of Clas, in the parish of Llansaint- 
 fread Cwmtoyddwr, in the county of Radnor, farmer. 
 
 The said plaintiff states as follows to wit. 
 
 1. David Edwards the elder, late of Abercaython in the 
 parish of Llansaintfread Cwmtoyddwr, in the county of 
 Radnor, gentleman, deceased, duly executed under his hand 
 
^30 
 
 PLEADINGS. 
 
 and seal two several bonds dated respectively the twenty- 
 eighth day of May, one thousand eight hundred and nine- 
 teen, for the two several siims of two hundred pounds 
 payable to the plaintiff on demand, and four hundred pounds 
 payable to the plaintiff within six months next after the 
 decease of the said David Edwalrds, the obligor of the same 
 bonds. 
 
 2. In the year one thousand eight hundred and twenty- 
 seven, the said David Edwards, as such obligor as aforesaid, 
 made payment to the plaintiff of the sum of .one hundred 
 and fifty pounds, without any specific appropriation or di- 
 rections as to the appropriation thereof; and such payment 
 was thpreupon appropriated by the plaintiff to the satisfac- 
 tion in part of the'said bond for two hundred pounds. 
 
 3. The said David Edwards, the obligor of the said bonds, 
 died in the month of June, one thousand eight hundred and 
 thirty-seven, having by his will dated the twentieth day of 
 November, one thousand eight himdred and twenty-three, 
 and proved in the Consistory Court of the Archdfsaconry of 
 Brecon, on the third day of April, one thousand eight hun- 
 dred and thirty-nine, by his son the above-named defendant, 
 Charles Edwards, of Abercaython aforesaid, the sole ex- 
 ecutor thereof, devised the freehold hereditaments therein 
 described (being all the real estate of the said testator) unto 
 the said Charles Edwards, his heirs and assigns, subject to 
 the dower of the said testator's wife, Aune Edwards, since 
 deceased. 
 
 4. At the time of the said testator's death, the caplt'alsum 
 of four hundred and fifty pounds remained payable upon 
 the said bonds, and such sum with a considerable arrear of 
 interest is still due and owing from his estate. 
 
 The plaintiff therefore claims 
 
 1. That the said debt or sum of four hundred and fifty 
 pounds, with all arrears of interest thereon, may be 
 paid to him together with his costs of this s^iit, 
 
 2. In default thereof, that the real and personal estate of the 
 said testator may be administered in this Honourable 
 Court, on behalf of hinjself and all other the unsatisfied 
 creditors of the said testator. 
 
 3. For that purpose that all proper directions may be 
 given and accounts taken. 
 
 Harris Prejjdergast. 
 
PLEADINGS. 231 
 
 Bill for th? Administration of the Estate of a Deceased 
 Party by Infant Plaintiffs seeking Maintenance. 
 
 In Chancery. 
 
 JLord Chancellor. 
 
 Vice Chancellor/Kindersley. 
 
 Caroline Headden, Mary King Headden and Char- 
 lotte Maria Gale Headden, infants, under the age of 
 twenty-one years, by Ann Headden, their next 
 frien'd - - - . Plaintiffs. 
 
 Philip Emmott - - - Defendant 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Mousey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, shew unto his Lordship Caroline 
 Headden, Mary King Headden and Charlotte Maria 
 Gale Headden, of Broughton in the county of Southampton, 
 infants, under the age of twenty-one years, by Ann Headden, 
 of Broughton aforesaid, widow, their next friend, the above- 
 named plaintiffs as follows : — 
 
 1. William Headden, late of Brought9n aforesaid, surgeon, 
 being seised and possessed of certain real and persoqal 
 estate, duly made and executed his last will and testament 
 in writing, and thereby he gave and devised his freehold 
 dwelling-house and one acre of arable land (more or less) 
 at Broughton aforesaid, with the outhouses, gardens and 
 appurtenances thereto, unto his wife, Wilmot Headden, for 
 her own use and benefit during her widowhood, and from 
 and after the determination of that estate he gave and 
 devised the same to the defendant, Philip Emmott, and 
 Christopher Keele, since deceased, their heirs and assigns, 
 upon trust, as soon as might be after the death or second 
 marriage of his said wife, which should first happen, to sell 
 
232 PLEADINGS. 
 
 the same, and to stand possessed of the proceeds of such 
 sale upon similar trusts to those thereinafter contained 
 respecting Ms residuary personal estate ; after the death or 
 second marriage of his said wife, and after bequeathing 
 certain specific and pecuniary legacies he bequeathed the 
 residue of his personal estate and effects unto the said 
 Philip Emmott and Christopher Keele, their executors and 
 administrators, upon trust, to realize the same in manner 
 therein mentioned ; and as to the sum of two thousand 
 , pounds, part of the produce of the said residuary personal 
 estate upon trust, that his said trustees, or the survivor of 
 them, his executors or administrators, should place the 
 same out at interest either on government or real security 
 or securities, and apply the dividends, interest and annual 
 produce thereof in the manner therein mentioned for the 
 benefit of his said wife during her widowhood, and after 
 her death or second marriage, which should first happen, 
 as to one moiety thereof, upon trust, that his said trustees 
 and the survivor of them, his executors and administrators, 
 should stand possessed thereof and the interest, dividends 
 and yearly produce thereof, upon the trusts thereinafter 
 contained respecting the residue of his said trust estate and 
 effects ; and as to the other moiety of the said sum of two 
 thousand pounds upon certain other trusts therein con- 
 tained. And as to all the rest, residue and remainder of 
 the said produce and amount of his said residuary personal 
 estate and effects upon trust, that his said trustees, or the 
 survivor of them, his executors or administrators, should 
 place the same out at interest on such security or securities 
 as aforesaid,^ and as to one full moiety or half part of the 
 dividends, interest and annual produce thereof, to apply 
 the same in the manner therein mentioned for the benefit 
 of the testator's brother James Headden, for life, and after 
 his death as to the same moiety and the stocks funds, and 
 securities in oi: upon which the same might be then invested 
 upon trust for the benefit of the children of the said James 
 Headden, as and when they should attain the age of twenty- 
 one years in manner therein mentioned ; but in case his 
 said brother James should depart this life without leaving 
 any lawful issue, or being such if all of them should die 
 without issue under the age of twenty-one years, then upon 
 trust that his said trustees or trustee should pay, assign, 
 transfer and .dispose of the said moiety or half part of the 
 
PLEADINGS. 233 
 
 said residue of the produce and amount of his said trust 
 estate and effects unto, between and amongst all and every 
 the child or children of his brother Robert Headden, born 
 in wedlock, in equal shares and proportions, if more than 
 one, and if but one, wholly to such only child, as and when 
 he, she or they should respectively attain the age of twenty- 
 one years, unless such child or children, or any of them, 
 should attain the said age in the lifetime of his said brother 
 James, in which case the share or shares of such of them as 
 should so attain the said age in his said last-mentioned 
 brother's lifetime shoul4 be paid or assigned as soon as 
 conveniently might be after his decease; but in case his 
 said brother Robert should also depart this life without 
 leaving any lawful issue, or being such if all of them should 
 die without issue under the age of twenty-one years, then 
 upon the further trusts therein mentioned; and as to the 
 other or remaining moiety or half part of the dividends, 
 interest and yearly produce of the said residue of his said 
 trust estate and effects upon trust for his said brother Robert 
 Headden, during his natural life, and from and after the 
 decease of his said brother Robert, upon further trust thrft 
 his said trustees or trustee should pay and apply the said 
 moiety or half part of the said residue of the said produce 
 and amount of his said trust estate, and effects, or assign 
 and transfer the stocks, funds and securities whereon the 
 same should be then invested unto, between and amongst all 
 and every the child or children of his said brother Robert, 
 bom in wedlock, in equal shares and proportions, if more 
 than one, and if but one, wholly to such only child, as and 
 when he, she or they should respectively attain the age of 
 twenty-one years, unless such child or children, or any of 
 them, should attain the said age in the lifetime of his said 
 brother Robert, in which case the share or shares of such of 
 them as should so attain the said age in his said brother's 
 lifetime should be paid and assigned as soon as conveniently 
 might be aifter his decease ; but in case his said brother 
 Robert should depart this life without leaving any lawful 
 issue, or being such if all of them should depart this life 
 without issue under the age of twenty-one years, then upon 
 trust that his said trustees or trustee should pay, assign, • 
 transfer and dispose of the said last-mentioned moiety or 
 half part of the said residue of the said produce and 
 amount of his said trust estate and effects in the manner 
 
234 PLKADINGS. 
 
 therein mentioned, and the said testator thereby appointed 
 the said defendant, Philip Emmott and Christopher Keele, 
 joint executors of his said will. 
 
 2. The said William Headden died on the seventeenth 
 day of August, one thousand eight hundred and twenty- 
 four, without having altered or revoked his said will, and 
 the same was duly proved by the said defendant Philip 
 Emmott, and the said Christopher Keele, in the Prerogative 
 Court of the Archbishop of Canterbury on the twenty-sixth 
 day of April, one thousand eight hundred and twenty-five. 
 
 3. The said Philip Emmott and Christopher Keele 
 possessed themselves of the said testator's personal estate 
 not specifically bequeathed to a considerable amount, and 
 after payment of the testator's debts and funeral and testa- 
 mentary expenses there remained a large surplus of the 
 said testator's personal estate over and above the said sum 
 of two thousand pounds bequeathed for the benefit of the 
 said testator's widow during widowhood, and the defendant 
 Philip Emmott alleges that the same and also the said sum 
 of two thousand pounds was duly invested according to the 
 directions of the said will. 
 
 4. The said Wilmot Headden, the wife of the said testator, 
 survived him and died on the eighth day of May, one 
 thousand eight hundred and thirty-two, and thereupon the 
 sum of one thousand pounds being a moiety of the said 
 sum of two thousand pounds became subgect to the trusts 
 of the said testator's residuary estate, and the defendant 
 Philip Emmott alleges that the same has continued duly 
 invested according to the directions of the said wiU, and 
 that the said sum of one thousand pounds being the other 
 moiety of the said sum of two thousand pounds was duly 
 paid and applied according to the trusts of the said will. 
 
 5. The said Christopher Keele died on the twenty -fourth 
 day of October, one thousand eight hundred and twenty- 
 four. 
 
 6. After the decease of the said testator's widow, the said 
 defendant Philip Emmott sold the real estates of the said 
 testator devised to his said widow during widowhood,^and 
 received the produce thereof, and he alleges that the same 
 has been duly invested according to the directions of the 
 said will. 
 
 7. The said James Headden died on the third day of 
 September, one thousand eight hundred and forty-nine, 
 without having had any issue, and the said Philip Emmott 
 
PI^EADINGS. 235 
 
 alleges that he paid to the said James Headden during his 
 life one moiety of the dividends and income of the said 
 testator's residuary estate. 
 
 8. The said Robert Headden died on the twenty-fourth 
 day of April, one thousand eight hundred 'and fifty-two, 
 leaving issue by his wife, the said Ann Headden, three 
 children and no more, namely the three plaintiffs, Caroline 
 Headden, Mary King Headden, and Charlotte Maria Gale 
 Headden, who are of the respective ages of nine, six, and 
 two years, and having had no child who attained twenty-one 
 years or died under that age leaving issue, and the said 
 Philip Emmott alleges that he duly paid to the said Robert 
 Headden, during his life, one moiety of the dividends and 
 income of the said testator's residuary estate. 
 
 9. The said defendant, Philip Emmott, alleges that since 
 the deaths of the said Robert Headden and James Headden 
 respectively, he has invested and accumulated the income 
 of their respective moieties of the said testator's residuary 
 estate, including the said sum of one thousand pounds and 
 the proceeds of the said real estate, and he has not paid any 
 sum for the maintenance and support of the said plaintiffs, 
 and alleges that he is unable safely to do so except under 
 the direction of this Honourable Court. 
 
 PRAYER. 
 
 The plaintiffs pray as follows : 
 
 1. That the trusts of the said will of the said William 
 Headden may be carried into execution, and that his 
 residuary, real and personal estate, including the said 
 sum of "one thousand pounds may be invested and 
 secured for the benefit of the plaintiffs, and the other 
 persons entitled thereto under the direction of this 
 Court, and for that purpose that the necessary accounts 
 may be taken and directions given, and if it shall 
 appear that any part of the said testator's residuary 
 estate, or the income of the respective moieties thereof 
 since the deaths of the said James Headden and 
 Robert Headden respectively, has not been duly in- 
 vestec^ that the defendant, Philip Emmott, may be 
 charged with the loss occasioned thereby as this 
 Honourable Court shall direct. 
 
236 PLEADINGS. 
 
 2. That the interests, dividends, and annual proceeds of 
 the residuary personal estate of the said testator, and 
 of the proceeds of the sale of the real estate directed 
 to be sold, or a sufficient part thereof rftay from time 
 to time be paid and applied ;for the maintenance, 
 education, and support of the plaintiflFs. 
 
 3. That the plaintiffs may have such further or other 
 relief as the nature of tKe case may require. 
 
 Name of defendant: 
 The defendant to this bill is 
 
 Philip Emmott. Name of Counsel. 
 
 J. V. Prior. 
 
 Bill by a Married Woman for Administration of real and 
 personal Estate of a Testator. 
 
 In Chancery. 
 
 Lord Chancellor. 
 Vice Chancellor Wood. 
 
 Elizabeth Mary, wife of Jesse Coles, by 
 
 Henry John Aveling, her next friend Plaintiff. 
 
 Sir William Foster, baronet, Clement 
 William Unthank, Zachariah Fayer- 
 man, and the said Jesse Coles, when 
 he shall come within the jurisdiction 
 of this Honourable Court - - Defendants, 
 
 B1I<L OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, sheweth unto his Lordship Elizabeth 
 Mary Coles, of No. 23, Liverpool Street, King's Cross, in 
 the parish of Saint Pancras, in the county of Middlesex,^ 
 the wife of the defendant, Jesse Coles, by Henry John 
 
PLEADINGS. 237 
 
 Aveling her next friend, the abovenamed, plaintiff, as 
 follows : — 
 
 1. Edward Amis, late of Catfield, in the county of 
 Norfolk, esquire, deceased, was -at the time of his death 
 seised of and entitled to certain freehold and copyhold 
 messuages, lands and hereditaments, subject to a mortgage 
 thereof for securing the sum of three thousand pounds and 
 interest, and to an annuity of one hundred pounds payable 
 to his brother's widow for her life, and was also possessed of 
 personal estate to a con^derable amount. 
 
 2. The said Edward Amis duly made his last will and 
 testament in writing, dated the twentieth day of September, 
 one thousand eight hundred and forty-five, and thereby, 
 after appointing the said defendants, Sir William Foster and 
 Clement William Unthank, executors of his said will, he 
 gave and devised all and every his messuages, lands, tene- 
 ments and hereditaments whatsoever, as well freehold and 
 copyhold, as of any other nature or tenure, situate, lying 
 and being in Catfield aforesaid, and in Potter Heigham, 
 Ludham, Hickling and Halvergate, in the said county of 
 Norfolk, and all other his real estate which should belong 
 to him at his death (but subject to all principal money and 
 interest charged upon or secured by any mortgage or mort- " 
 gages of the said hereditaments or any of them, or any part 
 thereof, or so much of such principal money and interest aS 
 his personal estate should be insuflBcient to discharge as 
 thereinafter provided), unto the said Sir William Foster and 
 Clement William Unthank, their heirs and assigns, during 
 the joint natural lives of his niece, the said Elizabeth Mary 
 Coles, and her husband the said Jesse Coles, upon trust to 
 receive and take the rents, issues and profits of the said 
 hereditaments, and out of the same pay to and discharge all 
 the interest which should from time to time become due 
 and payable for and in respect of any mortgage or mortgages 
 of his said messuages, lands, tenements and hereditaments, 
 or so much of such mortgage or mortgages as his personal" 
 estate should be insufficient to discharge, and to pay and 
 discharge the premium and premiums for, and other the 
 expenses of or attending the insurance of the houses and 
 buildings from and against damage by fire, and also all the 
 expenses of maintaining and keeping his said messuages, 
 lands, tenements and hereditaments in good and tenantable 
 repair, order and condition, and all taxes and other out- 
 
238 
 
 PLEADINGS. 
 
 goings payable in respect of the same, and to pay the clear 
 surplus and remainder of the said relits, issues and profits 
 into the proper hands of his said niece the plaintiff, Elizabeth 
 Mary Coles,, for her sole and separate use, it being his will 
 and intention that the same should not be subject to the 
 control, disposition, debts or engagements of her said 
 husband, and that her receipt alone, notwithstanding her 
 coverture, should be a good, valid and effectual discharge 
 for so much of the said rents, issues and profits as in such 
 receipt should be expressed to be received ; and from and 
 after the decease of such one of them, his said niece, 
 Elizabeth Mary Coles, and the said Jesse Coles, as should 
 first depart this life, in case his said niece should survive 
 th^ said Jesse Coles, he gave and devised his said messuages, 
 lands, tenements and hereditaments unto his said niece, 
 Elizabeth Mary Coles, for her natural life, she paying the 
 interest which should from time to time become due for or 
 in respect of any mortgage or mortgages of the same, and 
 maintaining and keeping the houses and buildings in good 
 and tenantable repair, and insured against any damage by 
 fire, and committing no waste to or upon the said premises ; 
 and from, and after the decease of his said niece Elizabeth 
 Mary Coles, either in the lifetime of the said Jesse Coles, 
 or after his decease, as the case might be, he gave and 
 devised his said messuages, lands, tenements and heredita- 
 ments unto all and every the child and children of his said 
 niece lawfully begotten, to be divided between them in 
 such manner and with such provision in the nature of cross 
 remainders between them as therein mentioned; and in 
 case there should be no child of his said niece, or no 
 child who should attain the age of twenty-one years, or 
 die under that age leaving lawful issue of his or her 
 body living at his or her death, then he gave and devised 
 his said messuages, lands, tenements and hereditaments 
 unto such person or persons, for such intents and purposes, 
 in such proportions, and generally in all respects in such 
 manner and form as his said niece by her last will and tes- 
 tament in writing, or any writing or writings purporting to 
 be or being in the nature thereof, or any codicil or codicils 
 thereto, to be signed and attested as therein mentioned, 
 should, notwithstanding coverture, direct, limit or appointj 
 and in default of and until any such direction, limitation or 
 appointment, and so far as any such direction, limitation or 
 appointment, if incomplete, should not extend, then unto the 
 
PLEADINGS, 239 
 
 said defendant Zachariah Fayerman, his heirs and assigns 
 for ever; and in his said will was contained a power 
 enabling his trustees during the joint lives of the plaintiff 
 and her said husband, and afterwards for the persons therein 
 mentioned, to lease the said hereditaments and premises at 
 a rack rent for any term not exceeding fourteen years, in 
 the manner therein mentioned ; and the said testator by his 
 said will further gave and bequeathed a legacy of nineteen 
 pounds nineteen shillings, and he gave and bequeathed to 
 the said Sir William Foster and Clement William Unthank 
 all his personal estate and effects of every description upon 
 trust to collect, get in, receive, sell and convert it into 
 money, according to its nature as therein mentioned, and to 
 stand possessed of the money so to be collected, gotten in, 
 and received, and to arise from such sale, and of the ready 
 money belonging to him at his death, upon trust, in the 
 first place, by, with and out of the same to pay all his debts 
 (except those due upon any mortgage or mortgages, and 
 the interest thereof), his funeral and testamentary expenses, 
 and the pecuniary legacy thereinbefore bequeathed, and 
 then to pay and discharge the principal money and interest 
 which should at his death be due and owing upon ^ny. 
 mortgage or mortgages of his said hereditaments and real 
 estate, or any part thereof, or so much of such principal; 
 money and interest as the same would extend to pay and, 
 discharge, and then to pay the residue and remainder (if 
 any) of his said personal estate unto such person as his said- 
 niece, Elizabeth Mary Coles, should by writing under her 
 hand nominate or appoint to receive the same, or into her 
 awn proper hands, for her sole and sepa;rate use and benefit, 
 and that the same might be disposed of by her in the same 
 manner as if she were a fern me sole ; and the testator 
 thereby declared that the same should not be subject to the 
 control, disposition, debts or engagements of her husband, 
 and that her receipt, or the receipt of such person or per- 
 sons as she might appoint to receive the same, should be a 
 good and sufficient discharge for the same. 
 
 3. The said testator duly made and executed two codicils 
 to his said will, bearing date the seventh day of October, 
 one thousand eight hundred and fifty-two ; and by the 
 first thereof he bequeathed two legacies of one hundred 
 pounds each to his said executors and trustees, to be 
 retained by them within six calendar months after his 
 decease, and in other respects confirmed his said will ; and 
 
240 PLEADINGS. 
 
 by the second thereof he altered a direction in his said will 
 as to his bnrial, and the person to be beneficially interested 
 in the said legacy of nineteen pounds nineteen shillings, 
 and bequeathed two other legacies of one hundred pounds 
 each, to be paid free of legacy duty, and within six months 
 after his decease, out of his property, real or personal. 
 
 4. The said Edward Amis died "on the twenty -sixth day 
 of October, one thousand eight hundred and fiftj'-two, 
 without having revoked or altered his said will otherwise 
 than by the said two codicils thereto, and the same was 
 duly proved by the said Sir William Forster and Clement 
 William Unthank, in the Prerogative Court of Canterbury, 
 on the thjrd day of May, one thousand eight hundred and 
 fifty-three. 
 
 5. The said Jesse Coles, in or about July, one thousand 
 eight hundred and fifty-two, left this country for Australia, 
 and has since been and now is residing out of the jurisdic- 
 tion of this Court. 
 
 6. The plaintiff has no children, and has attained the 
 age of forty-eight years. 
 
 7. The personal estate of the said testator has been con- 
 verted into money, and after payment thereout of his debts 
 other than the said mortgage and his funeral and testa- 
 mentary expenses and legacies, there will remain a surplus 
 of one thousand nine hundred pounds or thereabouts. 
 
 8. A considerable portion of the testator's real estate is 
 of copyhold tenure, and the fines and fees payable on the 
 admission of his said trustees thereto will amount to nearly 
 two hundred pounds. 
 
 9. The testator occupied and farmed his said real estate up 
 to the time of his death, and he suffered all the farmhouses 
 and outbuildings thereon to fall into a very dilapidated 
 condition, and it was impossible after his death to let the 
 same without putting or agreeing to put them into a good 
 state of repair ; and accordingly, since the death of the 
 testator, his said real estate has been let by the said de- 
 fendants, Sir William Forster and Clement William Unthank, 
 with the concurrence of the plaintiff, on lease for a term of 
 twelve years, at the annual rent of six hundred pounds, 
 but with an agreement on the part of the lessors that 
 certain repairs should be done thereto, the costs of which 
 it is estimated will amount to one thousand pounds or 
 thereabouts. 
 
PLEADINGS. 24 1 
 
 10. It will be, for the benefit of the said testator's trust 
 estate that a portion of his said residuary personal estate 
 should be applied for the purpose of such repairs, and for 
 the payment of the said fines, fees and expenses, instead of 
 the whole thereof being applied in paying off the said mort- 
 gage debt of three thousand pounds, and the said Zachariah 
 rayerman does not object to such application, but the said 
 Sir William Forster and Clement William Unthank, allege 
 that they are advised that they cannot safely apply the said 
 trust monies for the purposes of such repairs except under 
 the direction of this Honourable Court. 
 
 PRAYER. 
 
 The plaintiff prays as follows : — 
 
 1. That the trusts of the will of the said Edward Amis 
 may be carried into execution, and his real and per- 
 sonal estate administered under the direction of this 
 Honourable Court ; and for that purpose that the ne- 
 cessary accounts may be taken, and that ail proper 
 directions may be given with reference to the said 
 repairs, and the fines, fees and expenses payable on the 
 trustees' admission to the said copyhold estates, and 
 otherwise as this Honourable Court shall think fit. 
 
 2. That the plaintiff may have such other relief as tha 
 nature of the case may require. 
 
 Names of the defendants. 
 
 The defendants to this Bill are 
 
 Sir William Forster, 
 
 Clement William Unthank, 
 
 Zachariah Fayerman, and 
 
 Jesse Coles, when he shall come within the jurisdiction 
 of the Court. 
 
 Name of counsel. 
 
 J. V. Prior. 
 
242 FLEADINQS. 
 
 Bill by Pecuniary Legatee to raise Legacy out of Real 
 
 Estate* 
 
 In Chancery. 
 
 Lord Chancellor. 
 
 Vice Chancellor Kindersley. 
 
 Mary Ann Clark Kingsley - Plaintiflf". 
 
 George Gregory, Henry Gregory, James 
 
 Gregory and Charles Gregory Defendants. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranvvorth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship Mary 
 Ann Clark Kingsley, of Tring, in the county of Hertford, 
 spinster, the above-named plaintiff, as follows: — 
 
 1. James Clark, of Long Marston, in the county of 
 Bucks, victualler, duly made and executed his will, dated 
 the fifth day of November, one thousand eight hundred 
 and thirty-nine, and thereby he gave and devised to his 
 daughter Mary Gregory (since deceased) all and every his 
 messuages, cottages, lands, tenements, hereditaments and 
 real estate whatsoever and, wheresoever and of what tenure 
 soever with the appurtenances to hold the same and every 
 part thereof unto his said daughter Mary Gregory, her heirs 
 and assigns for ever, subject nevertheless, and the testator 
 thereby expressly charged the same and every part thereof, 
 with the payment of the sum of three hundred pounds 
 sterling unto his granddaughter the plaintiff Mary Ann 
 Clark Kingsley, the daughter of his late deceased daughter 
 Ann Kingsley, to be a vested interest in her his said grand- 
 daughter from and immediately after his decease and to be 
 payable and be paid on her attaining the age of twenty-one 
 years, but without interest in the meantime. 
 
 2. The said testator made and executed two codicils to 
 his said will, which did not affect such part thereof as is 
 
PLEADINGS. 243 
 
 hereinbefore stated, and died on or about the first day of 
 February, one thousand eight hundred and forty, without 
 havingt revoked or in any other way altered his said will 
 and codicils. 
 
 3. The defendants hereto claim to be entitled to the real 
 estates of the said testator under and by virtue of an inden- 
 ture of settlement made and executed by the said George 
 Gregory and Mary his wife, and duly acknowledged by the 
 said Mary Gregory according to the provisions of the Act 
 for the abolition of Fines and Recoveries and the substitu- 
 tion of more simple modes of assurance, whereby the said 
 real estates were conveyed to James Rodwell and his heirs 
 upon trust for the said George Gregory and Mary his wife 
 and the survivor of them during their joint lives, and the 
 life of such survivor, and after the decease of such survivor 
 upon trust to sell the same estates and to stand possessed of 
 the proceeds of such sale upon certain trusts for tbe benefit 
 of the children of the said George Gregory and Mary his 
 wife in the manner therein mentioned. 
 
 4. The said James Rodwell has never acted in, and 
 refuses to accept the trusts of the said settlement. The 
 said Mary Gregory died some time since. The said de- 
 fendants Henry Gregory, James Gregory and Charles 
 Gregory are the only children of the said George Gregory 
 and Mary his wife. 
 
 5. The said Mary Ann Clark Kingsley attained her age 
 of twenty-one years on or about the fourth day of January, 
 one thousand eight hundred and fifty-three, and is now 
 entitled to have the said legacy of three hundred pounds 
 raised and paid to her, but the defendants allege that there 
 is no person competent to sell or mortgage the said real 
 estates for the payment thereof, except under the decree of 
 this Honourable Court 
 
 6. The said defendant George Gregory sometimes alleges 
 that there are some persons other than the defendants hereto, 
 who are interested in the said real estates, but he refuses to 
 discover their names or the particulars of their interests. 
 
 7. The defendant George Gregory had formerly and has 
 now in the possession, custody or power or in the posses- 
 sion, custody or power of his solicitors or agents the pro- 
 bate of the said will and codicils of the said testator, and 
 divers deeds, documents and other papers and writings 
 connected with, mentioning, referring or relating to or show- 
 ing the truth of the matters herein stated, which he refuses 
 to produce. R 2 
 
244 PLEADINGS. 
 
 PRAYEK. 
 
 The plaintiff prays as follows: — 
 
 1. That the said legacy of three hundred pounds, and 
 interest thereon after the rate of four pounds per 
 centum from the fifth day of January, one thousand 
 eight hundred and fifty-three, and the costs of this 
 suit may be raised by sale or mortgage of the said real 
 estates devised by the will of the said testator James 
 Clark, or of an adequate portion of such real estates, 
 and that the amount of such legacy and interest may 
 be paid to the plaintifi; and that for the above purposes 
 all necessary directions may be given. 
 
 2. 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 
 George Gregory, 
 Henry Gregory, 
 James Gregory, and 
 Charles Gregory. 
 
 Name of counsel, 
 
 J. V. Prior. 
 
 Bill by Cestuis que Trust to obtain Sanction of Court to a 
 Compromise. 
 
 In Chancery. 
 Master of the Rolls. 
 
 Harriet, the wife of George Remington 
 by William Remington, her next 
 friend the said George Remington, 
 and Alice Nannette Remington, 
 Elizabeth Sophia Remington, and 
 George Remington the younger, 
 infants under the age of twenty-one 
 years, by the said George Remington, 
 their father and next fi-iend - Plaintiffs. 
 
 William Arnold Bainbrigge and William 
 
 Henry Bainbrigge - . _ Defendants. 
 
PLEADINGS. 
 
 BILIi OF COMPLAINT. 
 
 245 
 
 To the Right Honourable Robert Monsey, Baron 
 Cran worth, of Cran worth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, show unto his Lordship Harriet, the 
 wife of George Remington, of No. 10, Cheyne Walk, 
 Chelsea, in the county of Middlesex, civil engineer, by 
 William Remington, of No. 138, Sloane Street, Chelsea, 
 aforesaid, esquire, het next fi-iend, the said George 
 Remington and Alice Nannette Remington, Elizabeth 
 Sophia Remington and George Remington the younger, 
 of No. 10, Cheyne Walk aforesaid, infants, under the age of 
 twenty-one years, by the said George Remington, their 
 father and next friend, the above-named plaintifis, as 
 follows: — 
 
 1. By indenture dated the seventh day of June, one 
 thousand eight hundred and forty-seven, being the settle- 
 ment made and executed previously to the marriage of the 
 plaintiff George Remington and Harriet his wife, and made 
 between the said Harriet Remington by her then name of 
 Harriet Arnold spinster, of the first part, the said George 
 Remington of the second part, and William Arnold, since 
 deceased, and the said defendant William Arnold Bain- 
 brigge of the other part, after reciting that the said 
 Harriet Arnold was entitled to two several legacies or sums 
 of one thousand pounds and one thousand pounds, making 
 together two thousand pounds, under the will of Thomas 
 Bainbrigge, dated the eighteenth day of .June, one thousand 
 eight hundred and eighteen, the said Harriet Arnold, with 
 the privity and approbation of the said George Remington, 
 her then intended husband, assigned the said two sums 
 unto the said William Arnold and William Arnold Bain- 
 brigge, their executors, administrators and assigns, upon 
 the trusts therein declared for the separate use of the said 
 Harriet Arnold during her life and after her decease, for 
 the said George Remington during his life, and after the 
 decease of the survivor of them, upon the trusts thereby 
 declared for the benefit of the children of the said intended 
 marriage, with an ultimate limitation in default of issue to 
 attain a vested interest therein to the appointees by deed or 
 
246 PLEADINGS. 
 
 will of the said Harriet Arnold, and in default of such 
 appointment to such person or persons being the actual heir 
 of the said Harriet Arnold as would be entitled thereto 
 according to the statute of distributions. And in the said 
 indenture was contained a proviso that if either of the said 
 trustees should happen to die or desire to be discharged from 
 the said trust it should be lawful for the trustees or the sur- 
 vivor of them, with the consent of the said Harriet Arnold, 
 testified by writing under her hand by any deed or writing 
 under their hands and seals attested by one or more credible 
 witness or credible witnesses, to appoint a new trustee or 
 trustees in the place of the trustee or trustees so dying or 
 desiring to be discharged. 
 
 2. The said marriage was duly had and solemnized, and 
 there has been issue thereof three children only, the 
 plaintiffs Alice Nannette Remington, Elizabeth Sophia 
 Remington and George Remington, the younger, who are 
 all infants under the age of twenty-one years. 
 
 3. The said William Arnold died on or about the sixth 
 day of January, one thousand eight hundred and fifty- 
 three. 
 
 4. The validity of the will of the said Thomas Bainbrigge, 
 by which the said legacies were given as recited in the said 
 settlement, was disputed by the defendant William Henry 
 Bainbrigge in the name of his brother Thomas Parker 
 Baiubrigge, claiming under a prior will executed by the 
 said Thomas Bainbrigge, and on the trial of an action of 
 ejectment between the Said Thomas Parker Bainbrigge 
 and the said William Arnold Bainbrigge, who was the de- 
 visee of the said estates, under the said will of the eighteenth 
 day of June, one thousand eight hundred and eighteen. 
 Subject to the said legacies to the said Harriet Arnold, and 
 to similar legacies to her brothers and sisters, a verdict was 
 found against the said will of one thousand eight, hundred 
 and ieighteen, but the said William Arnold Bainbrigge after- 
 wards obtained a rule for a new trial of such ejectment, and 
 when the same came on to he tried the said dispute was 
 compromised on the terras appearing in the agreement 
 hereinafter stated, the principle of the agreement in sub- 
 stance being that the estates should be divided between the 
 parties claiming under the prior will and the parties claim- 
 ing under the will of, one thousand eight hundred and 
 feighteen, so that each of the said parties claiming under 
 the will of one thousand eight hundred and eighteen should 
 
PLEADINGS. 247 
 
 receive half of what they would have received if the validity 
 of the said will had been established. 
 
 5. The said arrangement was beneficial to all the parties 
 'interested under the said will of one thousand eight hundred 
 
 and eighteen, and the same has been assented to by all the 
 legatees under the will of one thousand eight hundred and 
 eighteen, who have agreed to receive the sum of one thou- 
 sand pounds each in full of their legacies of two thousand 
 pounds. 
 
 6. An agreement dated the twentieth day of July, one 
 thousand eight hundred and fifty-two, was signed by the 
 plaintiff George Remington, the defendant William Arnold 
 Bainbrigge, and the defendant William Henry Bainbrigge, 
 in the words and figures or to the purport and effect follow- 
 ing : " Whereas the undersigned, George Remington, in 
 right of his wife Harriet, claims a legacy or legacies 
 amounting to two thousand pounds under the will of Thomas 
 Bainbrigge, deceased, and under which the undersigned 
 William Arnold Bainbrigge claimed to be entitled to his 
 real estates in fee or in tail. And whereas the undersigned 
 William Henry Bainbrigge as grantee of his brother Thomas 
 Parker Bainbrigge, claims to be entitled to the same 
 estates under a former will of the said Thomas Bainbrigge, 
 and the said Thomas Parker Bainbrigge and William Arnold 
 Bainbrigge agreed that the said estates should be confirmed 
 to the said Thomas Parker Bainbrigge on payment to the 
 said William Arnold Bainbrigge of twenty-five thousand 
 pounds, out of which he shoiild satisfy the said George 
 Remington and his wife for the said legacies. And whereas 
 the said George Remington has agreed to accept one 
 thousand pounds in full of the said legacies, and four 
 hundred and sixty-twa pounds for all interest thereon 
 to this time on the said William Henry Bainbrigge and 
 William Arnold Bainbrigge engaging for payment of those 
 sums as after mentioned. Now the said George Remington, 
 on behalf of himself and his said wife, in consideration of 
 the agreement of the said William Henry Bainbrigge and 
 William Arnold Bainbrigge hereinafter contained, hereby 
 agrees to accept and receive the said sum of one 
 thousand four hundred and sixty-two pounds in full of the 
 said legacy or legacies, and all interest to this time to be 
 paid as hereinafter mentioned, and to release the real 
 estates of the said Thomas Bainbrigge from all claims and 
 demands in respect thereof. And the said William Henry 
 
248 PLEADINGS. 
 
 Bainbrigge and William Arnold Bainbrigge herebj jointly 
 and severally agree with the said George Remington that 
 the said William Arnold Bainbrigge will pay to the said 
 George Remington the sum of four hundred and sixty-two 
 pounds on the 26th day of July instant, and the sum of one 
 thousand pounds with interest at four pounds per cent, per 
 annum from this day on or before the first day of January 
 next, on obtaining the said release." 
 
 7. The plaintiff Harriet Remington has signed the fol- 
 lowing memorandum at the foot of the said agreement, " I 
 confirm this agreement." 
 
 8. By indenture dated the first day of July, one thousand 
 eight hundred and fifty-three, executed by the said William 
 Arnold Bainbrigge and Harriet Remington, nnder their 
 hands and seals, and attested by one credible witness, the 
 said William Arnold Bainbrigge, with the consent of the 
 said Harriet Remington, has appointed the defendant 
 William Henry Bainbrigge to be a trustee of the said 
 indenture of settlement in the place of the said William 
 Arnold deceased. 
 
 9. The said William Henry Bainbrigge approves of the 
 said agreement of the twentieth day of July, one thousand 
 eight hundred and fifty-two, and considers that the same is 
 a beneficial arrangement for all parties interested under the 
 said indenture of settlement, but the same cannot effectually 
 be carried into execution except under the direction of this 
 Honourable Court. 
 
 10. The said sum of four hundred and sixty-two ponnds 
 has been paid by the said William Arnold Bainbrigge to the 
 said George Remington, in pursuance of the said agreement, 
 and the said William Arnold Bainbrigge has also paid to 
 the said George Remington interest on the said sum of one 
 thousand pounds up to the first day of January, one 
 thousand eight hundred and fifty-three. 
 
 PRAYER. 
 
 The plaintiffs pray as follows : — 
 
 1. That the trusts of the said settlement may be carried 
 into execution under the decree of this Honourable 
 Court, and that the defendants may be at liberty as 
 trustees of the said settlement to receive the said sum 
 of one thousand pounds, with subsequent interest from 
 
PLEADINGS. 249 
 
 the first day of January, one thousand eight hundred 
 and fifty-three, in full of all their claims and demands 
 as trustees of the said indenture of settlement upon the 
 said estates, under and by virtue of the said will of 
 the eighteenth day of June, one thousand eight hundred 
 ai)d eighteen, and thereupon to release and discharge 
 the said estates from the said legacy. 
 
 2. That so far as may be necessary for the purposes of 
 this suit all necessary directions may be given and 
 accounts taken. 
 
 3. That the plaintiffs may have such further or other 
 relief as the nature df the case may require. 
 
 Names of defendants. 
 The defendants to this Bill of Complaint are 
 William Arnold Bairibrigge. 
 William Henry Bainbrigge. 
 
 J. V. Prior. 
 
 Bill by Pecuniary Legatees to make Executors Personally 
 Liable on Admission of Assets or to charge Legacy on 
 Real Estate. 
 
 In Chancery. 
 
 Lord Chancellor, 
 Vice Chancellor Wood. 
 
 John Francis and Emma his Wife - Plaintiffs. 
 James Clemow ... Defendant. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, shew unto his Lordship John Francis, 
 
250 PLEADINGS. 
 
 of Zadock, in the county of Cornwall, farmer, and Emma, 
 his wife, the above-named plaintiffs, as follows: — 
 
 1. Francis Clemow, of the parish of Saint Enoder, in 
 the county of Cornwall, yeoman, duly made and executed 
 ■his last will and testament, bearing date the third day of 
 May, one thousand eight hundred and thirty-nine: and 
 thereby he willed and directed that all his just debts, testa- 
 mentary and funeral charges, should be fully paid and 
 satisfied, and after bequeathing unto his sons William and 
 Joel the sum of one hundred pounds each, and to his son 
 Mark the sum of fifty pounds, to be paid to them respect- 
 ively when his son Joseph should arrive at the age of 
 twenty-one years, and after making certain specific be- 
 quests, he gave and bequeathed unto his daughters Char- 
 lotte and Emma the sum of one hundred and fifty pounds 
 each, to be paid to them respectively on the day of their 
 marriage, and in case both or either of his said daughters^ 
 Ishould remove from and discontinue to live with his sons 
 Joseph and James, they or she so removing should from 
 that time be paid interest on their respective legacies at 
 the rate of four pounds per centum per annum ; and after 
 bequeathing certain annuities charged upon specific portions 
 of his property, he gave, devised, and bequeathed all the 
 rest, residue, and remainder of his estate and effects, both 
 real and personal, of whatsoever nature, kind,or sort soever 
 the same might be at his decease, unto his son James 
 Clemow, the defendant hereto, his heirs, executors, ad- 
 ministrators, and assigns, and he appointed his said son 
 James (clemow executor of his said will. 
 
 2. The said testator died on the thirtieth day of May, 
 one thousand eight hundred and thirty-nine, without alter- 
 ing or revoking his said will, which was proved by the 
 defendant James Clemow in the proper Ecclesiastical 
 Court on the thirtieth day of October, one thousand eight 
 hundred and thirty-nine. 
 
 3. The said James Clemow possessed himself of the 
 personal estate of the said testator to a considerable amount, 
 and he thereout paid the said testator's debts and funeral 
 and testamentary expenses, and he also paid to the said 
 testator's sons, WiUiam, Joel, and Mark, their said several 
 legacies when and as they became payable, and he also 
 paid to the said testator's daughter Charlotte on her mar- 
 
FLEADINGS. 25-1 
 
 riage the said legacy of one hundred and fifty ponnds 
 bequeathed to her. 
 
 4. The plaintiff Era ma Francis intermarried with the 
 plaintiff John Francis on the twenty-sixth day of June, one 
 thousand eight hundred and fifty-one ; and the plaintiffs 
 have since made various applications to the said defendant 
 for payment of her said legacy, and the defendant has at 
 different times promised to pay the same ; and in particular 
 the said defendant, in consequence of a pressing letter 
 written to him on the fourth day of June, one thousand 
 eight hundred and fifty-three, by the plaintiff's solicitor, 
 Mr. Preston Wallis, called on the plaintiff John Francis on 
 the seventeenth day of the same month of June, and pro- 
 mised to pay the said legacy with interest from the said 
 twenty-sixth day of June, one thousand eight hundred and 
 fifty-one, at or before Michaelmas next, but afterwards, and 
 on the thirtieth day of June, one thousand eight hundred 
 and fifty-three, the defendant, in the course of conversation 
 with the plaintiff John Francis, stated that he had assigned 
 the property to which he was entitled as residuary devisee 
 under the said will, and that he did not intend to pay the 
 said legacy or any part thereof: in fact, the whole of the 
 said legacy, with interest thereon from the said twenty- 
 sixth day of June, one thousand eight hundred and fifty- 
 one remains unpaid. 
 
 5. The plaintiffs submit and insist that the defendant 
 has admitted assets of the said testator sufficient for the 
 payment of the said legacy, by paying the said other lega- 
 cies in full as hereinbefore stated, and that be is personally 
 liable to the plaintiffs for payment thereof; atid further, 
 that the said legacy is by the said will charged upon and 
 payable out of the said testator's residuary real estate, or if 
 hot, then that the plaintiffs are entitled to have the said 
 testator's assets marshalled in their favour, and to have their 
 said legacies paid out of the said testator's real estate, to 
 the extent that his personal estate has been applied in 
 payment of the said testator's debts. 
 
 6. The defendant ought to set forth a full and particular 
 account of the said testator's real and personal estate. 
 
 7. The defendant had formerly, and has now, in his pos- 
 session, custody or power, or in that of his solicitor or agent, 
 divers accounts, books of account, letters, abstracts, docu- 
 ments, deeds, and divers copies of, and extracts from, such 
 
252 PLEADINGS. 
 
 several particulars, and other papers and writings connected 
 with, mentioning, referring or relating to or showing the 
 truth of the several matters herein mentioned, which he 
 refuses to produce. 
 
 PRAYER. 
 
 The plaintiffs pray as follows : — 
 
 1. That an account may be taken by and under the 
 direction of this Honourable Court of what is due to 
 the plaintiffs in respect of the said legacy given to the 
 plaintiff Emma Francis by the said will, with interest 
 thereon from the said twenty-sixth day of June, one 
 thousand eight hundred and fifty-one, and that the 
 said defendant may be decreed to pay to the plaintiffs 
 the amount which shaU be found so due, and that if 
 necessary all proper directions may be given for ad- 
 ministering the real and personal estate of the said 
 testator, for the purpose of such payment, and that if 
 necessary it may be declared that the said testator's 
 residuary real estate is charged with and liable to the 
 payment of the said legacy, and interest, or otherwise 
 that the plaintiffs are entitled to have raised out of the 
 said testator's real estate, and applied in payment of 
 the said legacy, the amount of his personal estate 
 which shall appear to have been applied in payment of 
 the said testator's debts. 
 
 2. That all proper directions may be given and accounts 
 taken for the purposes aforesaid. 
 
 3. That the plaintiflFs may have such farther or other 
 relief as the nature of the case may require. 
 
 Namfe of defendant. 
 
 The defendant to this Bill of Complaint is 
 James Clemow. 
 
 Name of Counsel. 
 
 J. V, Prior. 
 
PLEADINGS. 253 
 
 Bill Seeking Execution of the Trusts of a Settlement and 
 Inquiry after an Alleged Will and Appointment of 
 Guardians. 
 
 In Chancery. 
 
 Vice Chancellor Wood. 
 
 John Oxley Parker, the Reverend Charles 
 
 Brown Dalton, and Alfred Turner Plaintiffs. 
 
 Julia Clementina Phillips, Maria Jemima 
 Phillips, Edel Cecilia Mary Caroline 
 Phillips, and Howell Charles Phil- 
 lips , - _ _ Defendants. 
 
 BILI^ OF COMPLAINT. 
 
 To the Rip^ht Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship John 
 Oxley Parker, of Woodham, Mortimer Place, in the county 
 of Essex, esquu-e, the Reverend Charles Brown Dalton, of 
 Lincoln's Inn, in the county of Middlesex, clerk, and 
 Alfred Turner, of Red Lion Square, in the said county of 
 Middlesex, esquire, the abovenamed plaintiffs as follows : — 
 
 1. By an indenture bearing date the twenty-eighth day 
 of August, one thousand eight hundred and twenty-six, 
 and made between Howell Jones Phillips, of the first part, 
 Julia Ann Phillips, by her then name of Julia Ann Mar- 
 riotti of the second part, and Christopher Comyns Parker, 
 Francis Chantrey and Robert Willimott, of the third part 
 (being the settlement made previously to and in contempla- 
 tion of the marriage then intended, and shortly afterwards 
 solemnized between the said Howell Jones Phillips and 
 Julia Ann Phillips) a sum of six thousand pounds three 
 
 f)ounds per centum Consolidated Bank Annuities and a 
 egacy of five thousand pounds, to which the said Julia 
 Ann Phillips was entitled under the will of her uncle 
 
254 PLEADINGS. 
 
 Richard Marriott, deceased, were settled. Upon trust 
 during; the joint lives of the said Howell Jones Phillips 
 and Julia Ann Phillips, to pay one moiety of the annual 
 proceeds of the said trust funds to the said Howell Jones 
 Phillips or his assigns, and to pay the other moiety to 
 the said Julia Ann Phillips for her separate use without 
 anticipation and after the decease of either of them to pay 
 the annual proceeds of the whole of the said trust funds to 
 the survivor of them or his or her assigns, and after the 
 decease of the said Howell Jones Phillips and Julia Ann 
 Phillips, upon trust for all and every or such one or more 
 child or children of the «aid marriage to be vested and pay- 
 able at such time or respective times (and if more than one) 
 in such shares and proportions, and subject to such provisoes, 
 conditions, or limitations over and charged and chargeable 
 with such annual sums of money or sums in gross, in favour 
 and for the benefit of some or one of the said children with 
 such provisions from or out of the said trust funds, or the 
 dividends, interest, or yearly proceeds thereof for the main- 
 tenance and education, and also for the preferment or 
 advancement or otherwise for the benefit of such child or 
 children as the said Howell Jones Phillips and Julia Ann 
 Phillips at any time or from time to time during their joint 
 lives should jointly direct or appoint. And in default of 
 or subject to such direction or appointment then as the 
 survivor of them the said Howell Jones Phillips and Julia 
 Ann Phillips, at any time or times after the decease of the 
 other of them by any deed or deeds, or instrument or in- 
 struments in writing, or by his or her last will and testa- 
 ment in writing, or any -codicil or codicils thereto, or by 
 any writing purporting to be or in the nature of his or her 
 last will and testament to be signed and published by him 
 or her in the presence of and to be attested by two or more 
 credible witnesses should direct or appoint, and in default 
 of any such direction or appointment by the said Howell 
 Jones Phillips and Julia Ann Phillips, or the survivor of 
 them as aforesaid/ or in case of any siich direction or ap- 
 pointment then as to such part or parts (if any) of the said 
 trust funds whereto the same should not extend or whereof 
 the same should not be a complete disposition, but subject 
 and without prejudice thereto, upon the trusts following 
 that is to say, in case there should be an only child of the 
 said marriage, upon trust for such only child his or her 
 executors, administrators and assigns, and in case there should 
 be two or more children of the said marriage, upon trust for 
 
PLEADtNQS. 255 
 
 both or all such children in equal shares and for their respec- 
 tive executors, administrators and assigns ; and in the same 
 indenture is contained a proviso that if any or either of such 
 children being a son or sons should depart this life under 
 the age of twenty-one years, or being a daughter or daugh- 
 ters, should depart this life under that age without having 
 been married, then and in every such case, as well the 
 original share of each such child so dying as every other 
 part or share to which he or she might have become 
 presumptively entitled of and in the said trust funds by- 
 virtue of that present proviso should from time to time 
 accrue to and be in trust for the others or other of them 
 in equal shares (if more than one), and for their, his or her 
 respective executors, administrators and assigns. And in 
 the same indenture are contained the fallowing trusts and 
 power: " And upon further trust, that from and after the 
 decease of the survivor of them the said Howell Jones 
 Phillips and Julia Ann Marriott, in case there shall be any 
 child or children of the said intended marriage then living, 
 who being a son or sons shall not have attained the age of 
 twenty-one years, or being a daughter or dauji;hters shall 
 not have attained that age or been married, they the said 
 trustees, and the survivor and survivors of them, and the 
 trustees and trustee for the time being of the settlement 
 hereby made, shall or lawfully may, in his or their discre- 
 tion, subject, nevertheless, and without prejudice to any 
 such direction or appointment as aforesaid,. pay and apply 
 all or any part of the dividends, interest or yearly proceeds 
 of the portion to which each such child shall for the time 
 being be presumptively entitled by virtue of these presents, 
 as well by appointment and survivorship or otherwise, for 
 or towards his or her maintenance and education, in sueh 
 manner as the said trustees or trustee for the time being 
 shall think proper, and from time to time, imtil such 
 portion shall become payable or transferable ; and do and 
 shall lay out and invest in the public funds or in govern- 
 ment or on real securities, at interest in their or his own 
 names or name, any surplus or savings of such dividends^ 
 interest, or yearly proceeds, and from time to time accumu- 
 late and improve such savings in the nature of compound 
 interest, in augmentation of the principal money or portion 
 from which the same shall arise, and to go and be payable 
 and applicable in like manner to all intents and purposes as 
 if originally constituted part thereof : Provided also, and it 
 is hereby further declared and agreed, that notwithstanding 
 
256 
 
 PLEADINGS. 
 
 anything hereinbefore contained to the contrary, it shall be 
 lawful for the said trustees, and the survivors and sui-vivor of 
 them, and the trustees and trustee for the time being of the 
 settlement hereby made, from and after the decease of the 
 survivor of them the said Howell Jones Phillips and Julia Ann 
 Marriott his intended wife, or in the lifetime of them or the 
 survivor of them, with their, his or her consent in writing 
 under their, his or her hands or hand, to raise and apply, 
 for the preferment, advancement, or benefit of each or any 
 ' son of the said intended marriage, notwithstanding his 
 minority, such part or parts not exceeding in the whole one 
 half part of the portion to which he shall for the time being 
 be presumptively or otherwise entitled by virtue of these 
 presents, aa well by appointment and survivorship as other- 
 wise, and of the savings and accumulations thereof as the 
 trustees or trustee for the time being shall. in their or his 
 discretion think proper." And such settlement also con- 
 tained a power for the trustees to vary the investment of 
 the trust funds and a power to lend the said Howell Jones 
 Phillips two thousand pounds on his bond and on an in- 
 surance of his life, and a power to lay out the trust monies 
 in the purchase of freehold or copyhold messuages, lands, 
 or hereditaments, and of leasehold messuages or heredita- 
 ments held for any terms or term of years whereof not less 
 than ninety years should be unexpired, upon trust, never- 
 theless, with the consent in writing of the said Howell Jones 
 Phillips and Julia Ann Phillips, or the survivor of them if 
 living, but if dead then of the proper authority of the trustees 
 or trustee for the time being to sell and dispose of the said 
 messuages, lands and hereditaments so to be purchased 
 either by public auction or private contract, and in such 
 manner as should be deemed most convenient, and to apply 
 the monies arising from such sale in the same manner as 
 the money would have been applicable in case such pur- 
 chase had not been made ; and in the meantime to apply 
 the rents and profits as if no such purchase had been mdde, 
 and the messuages, lands, and hereditaments so to be pur- 
 •chased were to be considered as personal estate, and a power 
 was given to the trustees to lease any such messuages, lands 
 and hereditaments until the sale thereof. 
 
 2. The said Bank annuities were sold, and the whole of the 
 trust funds were some time since invested as to part thereof 
 in the purchase of certain freehold tenements, two thousand 
 pounds other part thereof was lent to the said Howell 
 Jones Phillips upon his bond and a policy of assurance on 
 
PLEADING?. 257 
 
 his life and the remainder of the trust funds was invested 
 in the purchase of two leasehold hereditaments. 
 
 3. The said Francis Chantrey, Robert Willimotl, and 
 Christopher Comyns Parker respectively having died, by an 
 indenture bearing date the seventh day of November one 
 thousand eight hundred and forty-four, and made between 
 the said Howell Jones Phillips and Julia Ann his wife of 
 the one part, and the plaintiffs of the other part, the plain- 
 tiffs were, in pursuance of a power in that behalf contained 
 in the said indenture of the twenty-eighth day of August 
 one thousand eight hundred and twenty-six, appointed 
 trustees of the said setflement in the place and stead of 
 the said Christopher Comyns Parker Francis Chantrey 
 and Robert Willimott, and by two indentures, hoth bearing 
 datp the .third day of December one thousand eight hun- 
 dred and forty-four, the trust property was vested in the 
 said new trustees. 
 
 4. The said Howell Jones Phillips died on the thirteenth 
 day of September one thousand eight hundred and fifty- 
 two, without having executed any joint appointment, leaving 
 the said Julia Ann Phillips him surviving, and the said 
 Julia Ann Phillips died on the fourth day of April one 
 thousand eight hundred and fifty-three, leaving her surviv- 
 ing four children who are the above-named defendants, 
 Howell Charles Phillips Jrlia Clementina Phillips Maria 
 Jemima Phillips and Edel Cecilia Mary Caroline Phillips. 
 
 5. It is alleged that shortly before her death, the said 
 Julia Ann Phillips executed an instrument purporting to 
 be an appointment in pursuance of the power by the • 
 said settlement given to her as the survivor of herself and 
 husband, and that she thereby appointed that from and 
 after her decease, all and singular the trust monies stocks 
 funds securities and property, by the said settlement settled, 
 or then subject to the trusts therein declared, should go 
 remain and be, and that the trustees or trustee for the time 
 being of the said settlement should stand and be possessed 
 thereof, in trust for her son and daughters the above-named 
 defendants, Howell Charles Phillips Julia Clementina 
 Phillips Maria Jemima Phillips and Edel Cecilia Mary 
 Caroline Phillips, in manner and form following, that is to 
 say, as to the sum of one thousand pounds sterling part 
 thereof and to be raised thereout, in trust for her said 
 daughter Julia Clementina, the sum of one thousand 
 
258 PLEADINGS. 
 
 pounds sterlinp; further part thereof, and to be raised there- 
 out, in trust for her said daughter Maria Jemima, and 
 as to all the rest residue and remainder of the said settled 
 trust funds and property, and all arrears of the income 
 thereof, if any, due to her at the time of her decease, in 
 trust for her son the said Howell Charles Phillips and her 
 said daughter Edel Cecilia Mary Caroline Phillips, in equal 
 shares and proportions, their respective executors, adminis- 
 trators and assigns ; and the said testatrix further directed 
 and appointed, that if at the time of her decease, any or 
 either of them her said son and daughters, should be under 
 the age of twenty-one years, the trustees or trustee for the 
 time being of the said indentures of settlement, should pay 
 and apply the annual income of the funds thereinbefore 
 appointed to them respectively, for and towards their re- 
 spective maintenance, education and advancement; and 
 the said testatrix gave and bequeathed all her own personal 
 estate and effects whatsoever and wheresoever, unto her said 
 son Howell Charles Phillips and her said daughter, Edel 
 Cecilia Mary Caroline Phillips, in equal shares as tenants 
 in common, and she appointed her. brother Richard 
 Marriott, to be the guardian of her said children and the 
 sole executor of her said alleged will. 
 
 6. Application has not been made for probate of the said 
 alleged will, and it has been made a question whether the 
 testatrix at the time of making such alleged will was in a 
 slate of mind to enable her to make a valid will, and the 
 said Richard Marriott has declined to prove the said will, 
 or to act as guardian for the infant children. 
 
 7. The defendant Julia Clementina Phillips is of age and 
 unmarried, and the defendants Maria Jemima Phillips Edel 
 Cecilia Mary Caroline Phillips and Howell Charles Phillips, 
 are minors of. the respective ages of twenty years, sixteen 
 years, and twelve years. 
 
 8. The trust property now consists of the said two lease- 
 hold houses producing a clear yearly income of about three 
 hundred and eighty pounds, the said freehold houses pro- 
 ducing after deducting repairs and heavy arrears, a yearly 
 income of about eighty pounds, and the sum of two thousand 
 pounds, being the said loan to the said Howell Jones 
 Phillips, and which will be shortly repaid by means of a 
 policy effected in the Law Life Assurance Society, on the 
 life of the said Howell Jones Phillips. 
 
PLEADINGS. 
 
 259 
 
 9. The plaintiffs are unable under tlie circumstances to 
 act in the execution of the said trusts of the said settle- 
 ment, save under the direction of this Honourable Court. 
 
 PRAYER. 
 
 The plaintiffs pray as follows : 
 
 1. That the trusts of the said indenture of settlement 
 may be carried into execution under the direction of 
 this Honourable Court. 
 
 2. That proper inquiry may be made and directions given 
 in reference to the said alleged will. 
 
 3. That guardians may be appointed for the said infant 
 defendants, and provision made for their maintenance 
 and education. 
 
 4. That the plaintiffs 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, 
 
 Howell Charles Phillips, 
 
 Julia Clementina Phillips, 
 
 Maria Jemima Phillips, 
 
 Edel Cecilia Mary Caroline Phillips. 
 
 (Name of counsel), 
 
 Charles Hall. 
 
 s2 
 
260 
 
 PLEADINGS. 
 
 Claim by the Heir-at-Law who is also Next of Kin of 
 . a Person entitled under a Settlement in default of 
 Appointment, alleging that an Appointment under a 
 power in the Settlement was Void for remoteness, and 
 dispensing with the Representative of a Surviving 
 Trustee, (a) ' 
 
 In Chancery. 
 
 Master of the Rolls. 
 
 Alfred Chance - - Plaintiff. 
 
 Mary Ann Chance, Charles Chance, 
 William Chance, George Chance, 
 Henry Chance, Edwin Chance, Wil- 
 liam Dickens Eves and Ann his wife, 
 Louisa Chance, Mary Chance, both 
 infants under the age of twenty-one 
 years, William Talbot and Jane his 
 wife, George William Chance, 
 Harriet Sarah Gryzbowski, William 
 Kintch and Adelaide his wife, the 
 HonourableCharles Alexander Gore, 
 and the Right- Honourable Thomas ' 
 Francis Kennedy (as Commissioners 
 of Her Majesty's Woods Forests and 
 Land Revenues) - - Defendants.' 
 
 The claim of Alfred Chance, of No. 6, Harriot's Place, 
 Fashion Street, Spitalfields, in the county of Middlesex, 
 butcher, the above-named plaintiff. 
 
 (a) Not yet reported. In this case the Master of the Rolls held, 
 that the testamentary appointment, by Jane Lodge, was void for 
 remoteness, and declared the petitioner entitled to the -whole fund. 
 No representative was required of the surviving trustee of the settle- 
 ment or of the trustee of the testamentary appointment. 
 
PLEADINGS. 261 
 
 The said Alfred Chance states as follows: 
 1. That, by an indenture, bearing date the seventeenth 
 day of December one thousand seven hundred and ninety- 
 nine, and made between Thomas Lodge of the first part, 
 Jane Ijodge, by her then name of Jane Chance, of the 
 second part, and William Stent and George Hodder of the 
 third part, being a settlement made previously to and in 
 consideration ■ of the marriage then intended and shortly 
 afterwards solemnized between the said Thomas Lodge and 
 Jane Chance, a certain leasehold messuage or tenement and 
 premises, situate in the Little Sanctuary in Westminster, 
 holden from the Dean and Chapter of Westminster for a 
 term of forty years subject to a yearly rent of twenty 
 shillings, were amongst other premises conveyed and as- 
 signed lo the said William Stent and George Hodder, in 
 trust, that they the said William Stent and George Hodder, 
 should from time to time during the life of the said Jane 
 Lodge, pay the yearly rents and proceeds thereof to such 
 persons, as the said Jane Lodge notwithstanding her said 
 intended coverture by any writing or nritings under her 
 hand should direct or appoint, to her own sole and separate 
 use and benefit; and from and after the decease of the said 
 Jane Lodge, in trust for such person or persons and to and for 
 such uses purposes estates and interests, and in such parts 
 shares and proportions manner- and form, as she should at 
 any time, notwithstanding her coverture and whether she 
 should be sole or unmarried, by her last will and testament 
 in writing, or any writing purporting to be or in the nature 
 of her last will and testament, to be by her signed sealed 
 published and declared in the presence of t.vo or more 
 credible witnesses, direct, limit, give, or appoint, and in 
 default of such direction, limitation, or appointment, upon 
 trust, as to the said messuage or tenement and premises, to 
 assign and set over the same to Stevens Chance, the eldest 
 son of the said Jane Lodge by Charles Chance her then 
 late husband deceased, and in case of the decease of the 
 said Stevens Chance under the age of twenty-one years, 
 upon the several other trusts therein mentioned. 
 
 2. That the said Stevens Chance lived to attain the age 
 of twenty-one years, and the last-mentioned limitation to 
 him therefore took effect. 
 
 3. That, by a certain indenture of release and convey- 
 ance, bearing date the nineteenth day of January one 
 
262 PLEADINGS. 
 
 thousand eight hundred and four, and made between the 
 Reverend William Vincent, Dean of the Collegiate Church 
 of Saint Peter in Westminster and the (Chapter of the same 
 Church of the first part, the Right Honourable William 
 Lord Auckland and the Right Honourable Sylvester Lord 
 Glenbervie, two of the Commissioners specially appointed 
 by his Majesty's letters patent under the Great Seal of 
 Great Britain, for the purpose of regulating, directingj ap- 
 proving, and confirming all sales and contracts for sales 
 which should be made by any bodies public or corporate, 
 or companies, or feoffees, or trustees for charitable or other 
 public purposes for the purpose of redeeming any land-tax 
 charged on all or any of the manors, messuages, lands, 
 tenements or hereditaments belonging to such bodies politic 
 or corporate, or companies, or feoffees, or trustees for 
 charitable or other public purposes, of the second part, the 
 said Thomas Lodge and Jane his wife of the third part, and 
 the said William Stent and George Hodder of the fourth 
 part, the said Dean and Chapter in exercise of the powers 
 vested in them by the said act, did, with the consent, 
 authority, and approbation of the said Right Honourable 
 Commissioners, at the request of the said Jane Lodge, and 
 with the privity and consent of the said Thomas Lodge, 
 grant, bargain, sell, release, and convey, and the said Right 
 Honourable Commissioners did confirm unto the said Wil- 
 liam Stent and George Hodder the said messuage or tene- 
 ment and premises, and the said reserved rent of twenty 
 shillings, to hold to them, their heirs and assigns for ever, 
 free from all incumbrances whatsoever, to the intent that 
 the said lease might be merged, but nevertheless, upon the 
 trusts mentioned and contained in the said indenture of 
 settlement of the -seventeenth of December one thousand 
 seven hundred and ninety-nine. 
 
 4. That under the provisions of an act of Parliament, 
 made and passed in the forty-sixth year of the reign 
 of his late Majesty King George the Third, intituled, 
 " An Act for consolidating and rendering more effectual 
 the several Acts for the purchase of buildings, and for 
 improvement of the streets and places near to West- 
 minster Hall and , the two Houses of Parliament," and 
 of a certain other act of Parliament, made and passed 
 in the fifty-eighth year of the reign of his late Majesty, _ 
 King George the Third, intituled " An Act to amenti ^: 
 
PLEADINGS. 263 
 
 and enlarge the powers of an act of the forty-sixth year 
 of his present Majesty, for consolidating and rendering 
 more effectual the several acts for the purchase of buildings, 
 and further improvement of the streets and places near to 
 Westminster Hall and the two Houses of Parliament," the 
 said hereditaments and premises so vested as aforesaid in 
 the said William Stent and George Hodder were pur- 
 chased by the commissioners under the said acts, at the 
 price of nine hundred and thirty-five pounds, which sum 
 was accordingly paid into the Bank ot England, in the 
 name of the Accountant General of the High Court of 
 Chancery, to the accouift ex parte "The Commissioners for 
 executing an act for consolidating and rendering more 
 effectual the several acts for the purchase of buildings and 
 further improvement of the streets and places near to 
 Westminster Hall and the two Houses of Parliament." 
 
 5. That, by an order, .made on the twenty-second of 
 March one thousand eight hundred and nine, by His 
 Honor the Master of the Rolls, it was ordered that the 
 said purchase money or sum' of nine hundred and thirty- 
 five pounds should be laid out in the purchase of Bank 
 3/. f)er cent, annuities, in trust, ex parte "The Com- 
 missioners for executing an act for consolidating and 
 rendering more effectual the several acts for the purchase 
 of buildings and improvement of the streets and places near 
 to Westminster Hall and the two Houses of Parliament," 
 and it was further ordered that the interest which should 
 accrue due on the said Bank SI. per cent, annuities when 
 so purchased, as the same should become due during 
 the life of the said Jane Lodge, be paid to her for her 
 separate use and benefit; and upon the death of the said 
 Jane Lodge, any person entitled to or interested in the 
 said Bank annuities was to be at liberty to apply to the 
 (^ourt concerning the same as there might be occasion. 
 
 6. That, pursuant to the said order, the said sum of 
 nine hundred and thirty-five pounds was laid out in the 
 purchase of the sum of one thousand three hundred and 
 sixty-nine pounds thirteen shillings and fourpence Bank 
 3/. per cent, consolidated annuities, which was duly carried, 
 and has ever since been standing to the before men- 
 tioned account; and the dividends on the said sum of one 
 thousand three hundred and sixty-nine pounds thirteen 
 shillings and fourpence Bank 3/. per cent, consolidated 
 
2f54 
 
 PLEADINGS. 
 
 annuities were duly paid to the said. Jane Lodge on Irer 
 separate receipt down to the time of her death. 
 
 7. That the said Jane Lodge, being then a widow, duly 
 made and published her last will and testament in writing, 
 bearing date on or about the fourth of March one thousand 
 eight hundred and nineteen, and therebyj after reciting 
 that by the settlement made previous to her marriage with 
 her late husband Thomas Lodge certain hereditainents 
 and premises which had been since sold or otherwise dis- 
 posed of, and also the sum of one hundred pounds AL per 
 cent. Bank annuities and eighteen pounds per annum 
 Bank long annuities wete assigned, transferred, and in- 
 vested unto and in the names of William Stent and George 
 Hodder, as trustees,- in trust, for , her separate use and 
 benefit during her life, and after her decease to and for 
 such uses and persons, and in such parts and shares as she 
 should, in and by her last will and testament, or any 
 writing purporting to be or in the nature of her last will and 
 testament, direct, give, or appoint the same, or any part 
 thereofj and that the sum of one thousand three hundred 
 and sixty-nine pounds thirteen shillings and fourpence 31. 
 per cent, consolidated Bank annuities, being the produce 
 or moneys arising from the sale of a part of the heredita- 
 ments and premises comprised in the said settlement, was, 
 in pursuance of an order of the High Court of Chancery, 
 made in the matter of the Commissioners for the improve- 
 ment of Westminster, yiurchas'.-d and invested in the name 
 of the Accountant General of the said Court, upon such 
 and the like trusts as were contained in her said marriage 
 settlement ; in pursuance and in exercise of the powers 
 and authorities to her given, or in her vested in and by 
 her said marriage settlement, and of all and every other 
 powers and authorities in her vested or otherwise enabling 
 her, she thereby gave, bequeathed, directed, and disposed 
 of all and every the said trust funds and premises men- 
 tioned and comprised in the said settlement, unto and for 
 the use and benefit of the several persons and in manner 
 thereinafter and in part hereinafter mentioned, that is to 
 say, she gave and bequeathed unto her son George Chance, 
 and her friend Mr. Henry Howard, of Alice's Coffee House, 
 Old Palace Yard, the interest and dividends of the afore- 
 said sum of one thousand three hundred and sixty-nine 
 pounds thirteen shillings and tburpence 3/. per cent, con- 
 
PLEADINGS. 
 
 solidated Bank annuities, in trust, to receive the interest 
 and dividends thereof, and to pay the same nnto her son 
 Stevens Chance hy equal weekly payments and .proportions 
 in every week, and into his hands only, for his own benefit 
 and snpport during his life ; and from and after the death 
 of the said Stevefis Chance, then she gave and bequeathed 
 the interest and dividends of the said one thousand three 
 hundred and sixty-hiiie pounds thirteen shillings and four- 
 pence 3/. per cent, annuities unto and equally between 
 her said- two sons Charles Chance and George Chance, 
 and the whole thereof to the survivor for and during their 
 lives and his life ; and on'the death of the survivor of them 
 the said Charles Chance and George Chance, then she 
 gave, arid bequeathed, and willed, and directed the said 
 principal sum of one thousand three hundred and sixty- 
 nine pounds thirteen shillings and fourpence 3/. per cent, 
 annuities to be divided into two equal half parts or shares, 
 and one such half part or share to be transferred or paid 
 unto and equally divided between all the children of her 
 said son Charles Chance at the age of twenty-five years, 
 with all interest and dividends thereon ; and if there should 
 be but one child, then the whole to such only child in 
 manner aforesaid ; and the other half part or share thereof 
 to be transferred or paid nnto and equally divided between 
 all the children of her said son George Chance at the age 
 of twenty-five years, with all interest and dividends there- 
 on ; and if there should be but one such child, then the 
 whole to such only child in manner aforesaid ; but if the 
 said Charles Chance should not have any children or child 
 who should live to attain the age of twenty-five years, then 
 she gave and bequeathed and willed and directed the said 
 first mentioned half part or share of the said principal sum 
 of one thousand three hundred and sixty-nine pounds 
 thirteen shillings and fourpence 3/. per cent, annuities, and 
 all interest and dividends thereon, to be transferred or paid 
 unto, and equally divided between, all the children of the 
 said George Chance, and if there should be but one, then 
 the whole to such only child in manner aforesaid, and 
 she thereby nominated and appointed her said two sons, 
 the said Charles Chance and George Chance, joint executors 
 of that her will. 
 
 8. That the said Jane Lodge died on or about 
 the thirty-first day of December one thousand eight 
 
266 PLEADINGS. 
 
 hundred and twenty, without having in any way altered or 
 revoked her said will. 
 
 y. That the said will was duly proved in the Prerogative 
 Court of the Archbishop of Canterbury, on the twelfth day 
 of January one thousand eight hundred and twenty-one, 
 by both the executors therein named. 
 
 10. That, under a subsequent order of the Court, the 
 said Stevens Chance received the interest and dividends of 
 the said sum of one thousand three hundred and sixty-nine 
 pounds thirteen shillings and fourpence 31. per cent, con- ' 
 solidated Bank annuities, pursuant to the trusts or provi- 
 sions of the said will from the death of the said Jane Lodge 
 up to the time of his decease. 
 
 11. That tbe said Stephens Chance died on or about 
 the eleventh day of May one thousand eight hundred and 
 thirty-seven, intestate, leaving Charlotte Chance, his widow 
 (since deceased), and the plaintiff, the said Alfred Chance, 
 his only child and heir-at-law, him surviving. 
 
 12. That, after the decease of the said Stephens Chance, 
 under subsequent orders of the Court, the interest and 
 dividends of the said sum of one thousand three hundred 
 and sixty-nine pounds thirteen shillings and fourpence SI. 
 per cent, consolidated Bank annuities were paid in equal 
 moieties to. the said Charles Chance and George Chance 
 up to the death of the said Charles Chance, from which 
 time the whole of such dividends were paid to the said 
 George Chance as the survivor up to the time of his death. 
 
 13. That the said Charles Chance died on or about 
 the twelfth day of April one thousand eight hundred 
 and forty -one, leaving six children and no more, him 
 surviving, namely, Jane Talbot, now the wife of the de- 
 fendant William Talbot, formerly Jane Chance, spinster, 
 George VN'illiam Chance, Harriet Sarah Gryzbovvski, for- 
 merly the wife and now the widow of Adam Gryzbowski, 
 formerly Harriet Sarah Chance, spinster, Adelaide Kintch, 
 the wife of the defendant WiUiani Kintch, formerly Ade- 
 laide Chance, spinster, all defendants hereto, and Charles 
 Chance and Ann Eliza Chance, both of whom died under 
 the age of twentj'-one years and unmarried. 
 
 14. That the said George (Jhance died in the year one 
 thousand eight hundred and forty-seven, having made 
 a will dated the sixth day of October one thousand 
 eight hundred and forty-one, whereof he appointed his 
 
PLEADINGS. 267 
 
 wife, the defendant, Mary Ann Chance, and his two sons, 
 the defendants, (Charles Chance and William Chance, 
 his executrix and executors, and the said will, with a 
 codicil thereto, was duly proved by the executrix and exe- 
 cutors therein named, on or about the fifteenth day of 
 October one thousand eight hundred and forty-seven, in 
 the Consistory Court of London. 
 
 15. That, besides the said defendants Charles Chance 
 and William Chance, the said George Chance also left six 
 other children and no more him surviving, all of whom are 
 defendants hereto, naiqely, George Chance, the younger, 
 Henry (Jhance, Edwin Chance, Ann Eves, now the wife 
 of the defendant William Dickens Eves, formerly Ann 
 Chance, spinster, and Louisa Chance and Mary Chance, 
 both of whom are now infants under the age of twenty-one 
 years. 
 
 It). That, as the said Alfred (]hance, the plaintiff, is 
 advised, the appointment made by the said Jane Lodge as 
 to the capital of the said sum of one thousand three hun- 
 dred and sixtj'-nine pounds thirteen shillings and four- 
 pence Bank 3/. per cent consolidated annuities was invalid 
 by reason of the gift being too remote, and in consequence 
 thereof the said sum went as in default of appoint- 
 ment under the trusts or provisions contained in the said ' 
 indenture of settlement of the seventeenth day of December 
 one thousand seven hundred and ninety-nine, and it 
 accordingly became vested absolutely in the said Stevens 
 Chance, the father of the said plaintiff Alfred Chance. 
 
 17. That, on or about the fourth day of June, one thou- 
 sand eight hundred and fifty-two, letters of administration 
 of the goods, chattels, and credits of the said Stevens 
 Chance, deceased, were granted by the Prerogative Court 
 of the Archbishop of Canterbury to the said plaintiff Alfred 
 Chance, whereby he became and now is the sole legal ' 
 personal representative of the said Stevens Chance. 
 
 18. That the said Charlotte Chance, the widow of 
 the said Stevens Chance, died on the thirteenth day 
 of February one thousand eight hundred and forty- 
 three, intestate, and letters of administration dated the 
 twenty-second day of June, one thousand eight hundred 
 and fifty-two, have also been granted to the said Alfred 
 (yhance by and out of the Prerogative Court of the Arch- 
 bishop of Canterbury of the goods, chattels, and credits uf 
 
268 
 
 PLKADINGS. 
 
 the said ("harlotte Chance, who became entitled as "the 
 widow of the said Stevens Chance to one-third part or 
 share of his personal' estate, the said plaintiff Alfred Chance 
 as his only child, and only other next of kin bein^ entitled 
 to the remaining two-third parts or shares of such personal 
 estate. 
 
 19. That, whether the said sum of one thousand three 
 hundred and sixty-nine pounds thirteen shillings and four- 
 pence Bank 31. per cent, consolidated annuities is to be 
 deemed personal estate, or as being the purchase money for 
 and as representing real estate, and passing as such, the 
 said plaintiff Alfred C3hance is, as he is advised, entitled 
 thereto and to the dividends accrued thereon, either in the 
 character of such administrator as -aforesaid, or as the only 
 child and heir-at-law of the said Stevens Chance. 
 
 20. That the said Williani Stent and George Hodder, 
 the original trustees of the said indenture of settlement of 
 the seventeenth day of December one thousand seven 
 himdred and ninety-nine, both died many years since, and 
 it is not known which of them survived, and there is now 
 no trustee of the said indenture of settlement. 
 
 21. That the said Henry Howard, who was one of the 
 trustees appointed by the said Jane Lodge, for the purpose 
 of carrying her testamentary appointment into effect, is 
 dead, and it is not known when or where he died, or 
 whether he survived the said George Chance, who was the 
 other trustee, or whether he left any will, or wlio is now 
 his real or personal representative. 
 
 22. That, as the plaintiff is advised, it is not necessary 
 for the purposes of this suit that any representative should 
 be appointed in place of the surviving trustee, either under 
 the said indenture of settlement, or under the said testa- 
 mentary appointment. 
 
 23. That, if necessary, it is competent to the Court, as 
 the plaintiff is advised, under the act of last session for the 
 improvement of the jurisdiction of equity, to appoint such 
 representative. 
 
 24. I'hat the- said sum of one thousand three hundred 
 and sixty-nine pounds thirteen shillings and fourpence 
 Bank 31. per cent, consolidated annuities, standing to the 
 before-mentioned account, is part of a larger sum of three 
 thousand four hundred and five pounds four shillings and 
 three pence like annuities standing to the same account. 
 
 25. That the Honourable Charles Alexander Gore and the 
 
PLEADINGS. 
 
 Right Honourable Thomas Francis Kennedy, as commis- 
 sioners of Her Majesty's woods forests, and land revenues, 
 as the persons in whom the property so purchased, as 
 aforesaid, is now vested, are alleged to be necessary parties 
 to this suit. 
 
 The said Alfred Chance, therefore, claims, under the 
 circumstances aforesaid, to be paid the said sum of one 
 thousand three hundred and sixty -nine pounds thirteen 
 shillings, and fourpence Bank 3/. per cent, consolidated an- 
 nuities, and the accrued dividends thereon, and, for that 
 purpose, that all propej directions may be given, and all 
 necessary accounts taken. 
 
 r. Sims Williams. 
 
 Bill for the Execution of the Trusts of a Settlement and for ^ 
 Payment of the Trust Funds into Court. 
 
 In Chancery. 
 
 Lord Chancellor. 
 
 Vice Chancellor Kindersley. 
 
 The Reverend Henry Cleveland and 
 Margaret his wife, and William Henry 
 Cleveland and Margaret Elizabeth 
 Cleveland, Henry Forster Cleveland, 
 Charlotte Catherine Cleveland, 
 Arthur Charles Cleveland, Mary 
 Louisa Cleveland, Elizabeth Jemima • 
 Cleveland, Isabella Margaret Cleve- 
 land, Adelaide Bowles Cleveland and 
 Herbert Meader Cleveland, infants, 
 by the said Henry Cleveland, their 
 father and next friend, and Edward 
 Nixon and Charles Nixon - - Plaintiffs. 
 
 Henry David Blyth, James Blyth, the 
 Reverend George Osborne, and the 
 Reverend Henry Atlay - - Defendants. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 269 
 
270 PLEADINGS. 
 
 Humblj' complaining, show unto his Lordship the Reverend 
 Henry Cleveland, of Romaldkirk, in the county of York, 
 and Margaret his wife, and William Henry Cleveland of 
 the same place, gentleman, and Margaret Elizabeth Cleye,- 
 land, Henry Forster Cleveland, Charlotte Catherine Cleve- 
 land, Arthur Charles Cleveland, Mary Louisa Cleveland, 
 Elizabeth Jemima C^leyeland, Isabella Margaret Cleveland, 
 Adelaide Bowles Cleveland, and Herbert M^ader Cleveland, 
 infants by the said Hpnry Cleveland their father,, and next 
 friend, and Edward Charles Nixon, both of Great Ponton, 
 in the county of Lincoln, grocers and drapers, the abovcr 
 named plaintiffs as follows : 
 
 ' 1. By an indenture bearing date the twenty-first day 
 
 of September one thousand eight hundred and twenty- 
 nincj and made between Reuben Cleveland and Elizabeth 
 his wife of the first part, the plaintiff Henry Cleveland of 
 the second part, Margaret Potchett, now the plaintiff Mar- 
 garet Cleveland, of the third part, and the defendants 
 Henry David Blyth, James Blyth, George Osborne, then 
 and therein called the younger, and Henry Atlay of the 
 fourth part, being a settlement made previously to and in 
 consideration of the marriage then intended, and shortly 
 afterwards solemnized between the plaintiffs, Henry Cleve- 
 land and Margaret -his wife, it was agreed and declared 
 that the said Henry David Blyth, James Blyth, George 
 Osborne, and Henry Atlay, should stand possessed of the 
 sums of six thousand four hundred pounds, three pounds 
 per centum consolidated Bank annuities and three thousand 
 six hundred pounds, three' pounds per centum reduced 
 annuities, which were then standing in their names, in 
 trust to pay the dividends thereof unto the said Reuben 
 Cleveland, and his assigns during his life and after his 
 decease, in trust to pay the same unto the said Elizabeth 
 Cleveland and her assigns, during her life, and after the 
 decease of the survivor of the said Reuben Cleveland and 
 Elizabeth his wife, in trust to pay the same unto the 
 plaintiff Henry Cleveland and his assigns, during his life, 
 and after his decease, in trust to pay the same unto the 
 plaintiff Margaret Cleveland and her assigns, during her 
 life, and after the decease of the survivor of the plaintiffs, 
 Henry Cleveland and Margaret his wife; in trust to pay, 
 apply, and dispose -of the said two several principal sums, 
 and the dividends, interest, and proceeds thereof, unto or 
 
PLEADINGS. 271 
 
 for the benefit of any one child, or any two or more 
 children, in equal shares and proportions of the plaintiff, 
 Henry Cleveland and Margaret his wife, and if only one 
 child, then to pay the whole to such one child, the same to 
 be a vested interest or vested interests, as to a son or sons, 
 at his or their age or respective ages of twenty-one years, 
 and as to a daughter or daughters, at her or their age or 
 respective ages of twenty-one years, or day or days of 
 marriage which should first happen, and in default of any 
 such child or children, or in case all such child or children 
 should die without issue before his, her, or their share, or 
 respective shares should become a vested interest or vested 
 interests, in trust for such person or persons, and in such 
 manner as the survivor of them the said Reuben Cleveland, 
 and the plaintifi^ Henry Cleveland, should in manner therein 
 mentioned, appoint and in default of appointment, in trust 
 for the next of kin of the survivor of them the said Reuben 
 Cleveland, and the plaintiff Henry Cleveland, according to 
 the statutes for the distribution of intestates' estates. 
 
 '2. The said Reuben Cleveland, died on the thirty-first 
 day of December one thousand eight hundred and fifty. 
 
 3. The said Elizabeth Cleveland, died on the thirty-first 
 day of December one thousand eight hundred and fifty- 
 two. 
 
 4. There has been issue of the plaintiffs Henry Cleve- 
 land and Margaret his wife, the following children, and no 
 more, namely, the plaintiffs William Henry Cleveland, 
 Margaret Elizabeth (Cleveland, Henry Forster Cleveland, 
 Charlotte Catherine Cleveland, Arthur Charles Cleveland, 
 Mary Louisa Cleveland, Elizabeth Jemima Cleveland, 
 Isabella Margaret Cleveland, Adelaide Bowles Cleveland, 
 and Herbert Meader Cleveland, and all such children Ex- 
 cept the plaintiff William Henry Cleveland are infants. 
 
 5. The plaintiff, Henry Cleveland, has charged hi& life 
 interest in the said sums of Bank annuities with sums 
 amounting to one thousand eight hundred pounds, in favour 
 of the plaintiffs, on which sums interest at the rate of five 
 pounds per centum per annum is payable, and he has also 
 charged the same life interest, with the premiums on certain 
 policies, effected upon his life for securing the same sums. 
 
 6. The defendants have not received the dividends upon 
 the said sums of Bank annuities, accrued since the death of 
 the said Elizabeth Cleveland. 
 
272 PI.EADIKGS. 
 
 PRAYEK. 
 
 The plaintiffs pray as follows: 
 
 1. That the defendants may be ordered to transfer the 
 said sums of six thousand four hundred pounds, three 
 pounds per centum consolidated Bank annuities, and three 
 thousand six hundred pounds, three pounds per centum 
 reduced annuities, into the name of the Accountant General 
 of this Honourable Court,: and to receive the dividends 
 thereon not yet received, and that the trusts of the said 
 settlement may be adminstered under the direction of this 
 Honourable Court. 
 
 2. That the plaintiffs 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, • 
 
 Henry David Blyth, 
 
 James Blyth, 
 
 The Reverend George Osborne, and 
 
 The Reverend Henry Atlay. 
 
 (Name of counsel), 
 
 Charles Hall. 
 
 ForeclosWre Claim. 
 In Chancery. 
 
 Master of the Rolls. 
 
 Joseph Brooks Yates - - Plaintiff. 
 
 Henry Littledale, John Randall, Richard 
 Crewe, John Crewe, Frederick Crewe, 
 and Willoughby Crewe - Defendants. 
 
 The claim of Joseph Brooks Yates, of Liverpool, in the 
 county of Lancaster, merchant, the above named plaintiff. 
 
 The said Joseph Brooks Yates states that under or by 
 virtue of indentures of lease and release dated respectively 
 
PI-EAD.INGS. , '273 
 
 the first and second days of May one thousand eight 
 hundred and twenty-eight, the release heing made between 
 Richard Crewe, esquire, then a m^or in the service of the 
 Honourable East India Company, but since deceased, of 
 the one part, J(nd the plaintiff, Joseph Brooks Yates of the 
 other part, the said Joseph Brooks Yates is a mortgagee 
 .of certain freehold and personal property in the island of 
 Jamaica, comprised in the said indentures, for securing the 
 sum of three thousand pounds, and interest ; and that the 
 time for payment thereof has elapsed, and that the above 
 named Henry Littledale, John Randall, Richard Crewe, 
 John Crewe, Frederick tJrewe and Willoughby Crewe, are 
 the persons entitled to the equity of redemption of the said 
 mortgaged premises, and the said Joseph Brooks Yates 
 therefore claims to be paid the said sum of three thousand 
 pdunds, and interest, and the costs of this suit, and in 
 default thereof he claims to foreclose the equity of redemp- 
 tion of the said mortgaged premises, and for that purpose 
 to have all proper directions given and accounts taken. • 
 
 J. V. Priob. 
 
 Foreclosure Claim by Mortgagee of an Equity of 
 Redemption. 
 
 In (yhancery. 
 
 Master of the Rolls. 
 
 George Cox - Plaintiff, 
 
 Abraham Gallienne - - Defendant. 
 
 The claim of George Cox, of Isabel Place, Caraberwell 
 New Road, in the county of Surrey, gentleman, the above 
 named plaintiff states as follows: — 
 
 1. That under and by virtue of an indenture dated the 
 tenth day of May one thousand eight hundred and forty- 
 nine, and made between the said Abraham Gallienne of 
 the first part, the said George Cox of the second part, and 
 -William Roscoe therein described of the third part, the 
 said plaintiff George Cox is a mortgagee of the equity of 
 
 T 
 
274 . PLEADINGS, 
 
 redemption of the said Abraham Gallienne of and in cer- 
 tain freehold property therein comprised, for securing the 
 sum of two hundred and eighty pounds, and interest ; and 
 in such indenture is contained a covenant on the part of 
 the said defendant for payment of the said principal sum 
 and interest. 
 
 2. The time for payment of the said principal sum and 
 interest has elapsed, and the said defendant Abraham Gal- 
 lienne is entitled to the equity of redemption of the said 
 freehold premises, subject to the plaintiff's said mortgage. 
 
 3, In the month of April one thousand eight hundred 
 and fifty, the plaintiff commenced an action at law against 
 the defendant in her Majesty's Court of Common Pleas at 
 Westminster, upon the covenant contained in the said 
 mortgage deed to recover the said two hundred and eighty 
 pounds and interest, and the defendant appeared and 
 pleaded in such action, and on the twelfth of April one 
 thousand eight hundred and fifty-one, a judge's order of 
 that date was made in the said action by consent in the 
 words, or to the effect following (that is to say) : 
 
 Upon hearing the attornies or agents on both sides, 
 and by consent, I order that the defendant shall withdraw 
 his pleas herein and upon payment of two hundred and 
 thirty-six pounds fifteen shillings, the debt due from the 
 defendant to the plaintiff, for which this action is 
 brought, together with interest thereon at the rate of 
 57. per cent, per annum, from the tenth of April, till the 
 day of payment, and fourteen pounds agreed costs to be 
 paid, as follows : (that is to say) thirty pounds on the 
 twenty-third instant, and the balance by instalments of 
 twenty-three pounds, on the twenty-fourth day of July, 
 twenfy-ninth day of the October, the twenty-fifth day of 
 January, and the twenty-fifth day of April, until the 
 whole is paid all further proceedings, in this cause be 
 stayed ; and I further order that in case default be made 
 in payment as aforesaid, the plaintiff be at liberty to sign 
 final judgment and issue execution for the amount, with 
 costs of judgment and execution, sheriff's poundage, 
 ofBcets' fefefs, and all other incidental expenses, whether 
 by fieri facias or capias ad satisfaciendum. 
 
 Dated the twelfth day of April one thousand eight 
 hundred and fifty-one. 
 
 W. H. Maule." 
 
PLEADINGS. 
 
 4. The defendant afterwards made default in paytnent of 
 some of the instalments or sums directed by such order to 
 be paid as aforesaid, and thereupon the plaintiff on or about 
 the twenty-ninth day of July one thousand eight hundred 
 and fifty-one, signed judgment against the defendant in 
 such action for the sum of two hundred pounds and sixteen 
 pounds ten shillings costs. 
 
 5. The defendant afterwards paid certain monies to the 
 plaintiff in respect of the instalments then due ; but some 
 of the other instalments mentioned in such order have 
 since become due, and the defendant has made default in 
 payment thereof. 
 
 6. The balance of principal money, interest, and costs, 
 which now retnains due to the plaintiff on his aforesaid 
 mortgage security, upon the footing of the said judge's 
 order of the twelfth of April one thousand eight hundred 
 and fifty-one, amounts to ninety-seven pounds and upwards. 
 
 7. The plaintiff therefore claims to be paid the said 
 balance due to him as aforesaid, with all subsequent interest, 
 and the costs of this suit, and in default thereof he claims 
 to foreclose the equity of redemption of the said premises, 
 and for that purpose to have all proper directions given and 
 accounts taken. 
 
 Henry W, Cole. 
 
 Bill by Equitable Mortgagee for Foreclosure or Sale. 
 
 In Chancery. 
 Lord Chancellor, 
 David James .... Plaintiff. 
 
 Michael Rice _ _ . Defendant. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship David 
 James, of Cape), in the county of Surrey, surgeon, the 
 above-named plaintiff, as follows : 
 
 1, On or about the twelfth day of May one thousand 
 
 T 2 
 
 276 
 
276 PLEADINGS. 
 
 eight hundred and fifty-one, the defendant, Michael Rice, 
 then of Oakwood Hill, near Ockley, in the county of 
 Surrey, timber and wood dealer, applied to the plaintiff for 
 the loan of one hundred and fifty pounds, which the 
 plaintiff agreed to advance, as to one hundred pounds 
 forthwith, and as to the remaining fifty pounds when the 
 defendant should apply for the same, and it was agreed that 
 the said defendant should give his -promissory notes for the 
 said sum and interest as hereinafter mentioned, and should 
 deposit the title deeds hereinafter mentioned as a further 
 security for such loan. 
 
 2. The plaintiff accordingly lent and advanced to the 
 defendant the sum of one hundred pounds on the said 
 twelfth day of May one thousand eight hundred and fifty- 
 one, and the defendant signed and delivered to the plaintiff 
 his promissory note, in the following words and figures, 
 namely : [here set out note'\. 
 
 3. At the same time the said defendant deposited with 
 the plaintiff the title-deeds relating to a messu^e, with 
 the buildings, garden, and appurtenances thereunto belong- 
 ing, situate in the parish of Ewhurst, in the said county of 
 Surrey, commonly called or known by the name of Little 
 Yard, which had been conveyed to the defendant, in fee 
 simple, to the usual uses to bar dower, but no memorandum 
 of such deposit was then or has since been given to the 
 plaintiff. 
 
 4. On or about the fourth day of June one thousand 
 eight hundred and fifty-one, the defendant applied to the 
 plaintiff to advance him the further sum of fifty pounds, in 
 accordance with the arrangement hereinbefore stated, and 
 accordingly the plaintiff advanced the defendant the said 
 sum of fifty pounds on the said fourth day of June, one 
 thousand eight hundred and fifty-one, and the said defend- 
 ant signed and delivered to the plaintiff a promissory note 
 in the words and figures following : [here set out note]. 
 
 5. In or about the month of June one thousand eight 
 hundred and iifty-two, the defendant applied to the plaintiff 
 to advance him the further sum of sixty pounds for a week, 
 under special circumstances, in order to save him the ex- 
 pense of a journey to London, and the defendant agreed to 
 repay the plaintiff the said sum of sixty pounds in a week's 
 time, and also ten shillings for the accommodation. The 
 plaintiff accordingly advanced and paid the sum of sixty 
 pounds to the defendant, who at the same time gave him an 
 unstamped memorandum in the words and figures following 
 
PLEADINGS. 277 
 
 " June 5th, 1852. 
 
 " I hereby acknowledge to have received this day from 
 David Jacnes, of Capei, the sum of sixty pounds on loan, to 
 be repaid in one week with interest of "ten shillings for the 
 use of the same, and with interest of ten shillings for every 
 week so long as the said loan shall remain unrepaid. 
 
 "(Signed) Michael Rice. 
 " Witness, Ann Willard. 
 
 " £60 " 
 
 6. The defendant mad§ default in payment of the said 
 sum of sixty pounds and interest, and in the month of July 
 or August one thousand eight hundred and fifty-two, the 
 plaintiff had an interview with the defendant, and then 
 proposed that the defendant should execute to him a legal 
 mortgage of the said freehold premises, of which the tide 
 deeds had been so deposited as aforesaid, together with 
 certain leasehold property at Chiselhurst, in Kent, which 
 the defendant then stated he had recently agreed to pur- 
 chase, to secure the said several loans and interest thereon 
 at the rate of five pounds per centum per annum, to which 
 proposal the said Michael Rice agreed, but such mortgage 
 was never completed. 
 
 7. The whole of the three several sums of one hundred 
 pounds, fifty pounds, and sixty pounds, amounting together 
 to the sum of two hundred and ten pounds, together with 
 interest thereon, still remains due from the defendant to the 
 plaintiff. 
 
 8. The defendant subsequently became involved in pecu- 
 niary diflBculties, and on or about the eighteenth day of 
 October one thousand eight hundred and fifty-two, he left 
 his home, and has not since been seen or heard of, although 
 repeated and diligent inquiries have been made for him. 
 
 PRAYER. 
 
 The plaintiff prays as follows: 
 
 1 . That an account may be taken of what is due to the 
 plaintiff on security of the said deposit of deeds, and 
 that the defendant may be decreed to pay to the 
 plaintiff what shall, on taking the said account, be 
 found due to him, together with the costs of this suit, 
 by a short day, to be appointed for that purpose, and 
 in default of such payment that the defendant may be 
 
278 
 
 PLEADINGS. 
 
 for ever barred and foreclosed of all right and equity 
 of redemption in the said hereditaments at Ewnuret 
 aforesaid, and that the said hereditaments and the 
 legal estate therein may be conveyed to the plaintiff, or 
 otherwise that the same may be sold, and that the 
 produce of such sale may be i^pplied in satisfaction of 
 what shall be found due to the plaintiff, and for the 
 above purposes that all necessary directions may be 
 given. 
 
 2. That Some proper person may be appointed by the 
 order of this Honourable Court to receive the rents 
 and profits of the said hereditaments. 
 
 3. That the plaintiff may have such fiirther or other 
 relief as the nature of the case may require. 
 
 The defendant to this Bill of Complaint is 
 
 Michael Rice. 
 
 (Name of Counsel.) 
 
 J. V. Prior. 
 
 Bill by Subsequent Mortgagee to Redeem prior Incum- 
 brancers and for For&elosure or Sale, 
 
 In Chancery. 
 
 Lord Chancellor. 
 Vice Chancellor Wood. 
 
 James Bedingfield Bryan - - Plaintiff. 
 
 Ellen Miles Wastell, William Butterworth 
 Bayley, Henry Porcher, Martin' 
 Tucker Smith, and William Brans- 
 comb . . _ Defendants. 
 
 BILL OF COMPLAINT. 
 
 To the Eight Honourable Robert Monsey Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain, 
 
 Humbly cotnplaining, showeth unto his Lordship James 
 Bediiigfield Bryan, of Muswell Hill, in the parish of 
 
PLEADINGS. 279 
 
 Hornsey, in the county of Middlesex, Doctor of Medicine, 
 the above-named plaintiff, as follows : — 
 
 1. That Charles Ford, of Bloomsbury Square, in the said 
 county of Middlesex, gentleman, on the eighteenth of June 
 one thousand eight hundred and forty-four, obtained and 
 entered up a judgment in her Majesty's Court of Queen's 
 Bench at Westminster, against the above-named defendant, 
 Ellen Miles Wastell, for the sum of four hundred and thirty- 
 one pounds nineteen shillings and tenpence, and the said 
 Charles Ford afterwards caused the said judgment to be 
 duly registered in her Majesty's Court of Common Pleas, 
 pursuant to the act of Parliament made and passed in the 
 first and second years of the reign of her present Majesty, 
 intituled, " An Act for Abolishing Arrest on mesne process 
 in Civil Actions, except in certain cases, for extending the 
 remedies of Creditors against the property of Debtors, and 
 for amending the Laws for the relief of Insolvent Debtors 
 in England;" and the said Charles Ford, on the twenty- 
 fifth of June one thousand eight hundred and forty-five, 
 filed his bill in this Honourable Court against the said Ellen 
 Miles Wastell and against Lewis Leslie and William Barnard 
 as defendants thereto, thereby stating, amongst other things 
 as the fact was, that the said Ellen Miles Wastell was en- 
 titled to a vested equitable estate as tenant in common 
 in fee, of and in one undivided third part of the free- 
 hold and leasehold estates comprised in the will of Sir 
 Jonathan Miles deceased therein named, and devised and 
 bequeathed by him to the trustees in his will mentioned, 
 subject to the charges and incumbrances thereon created by 
 the said testator's will, and also stating, as the fact was, that 
 such freehold and leasehold estates consisted of a house, 
 buildings, and grounds, at Hoxton, in the county of Mid- 
 dlesex, in and upon which the lunatic asylum therein men- 
 tioned was carried on and conducted, and praying (amongst 
 other things) that he the said Charles Ford might be de- 
 clared to be entitled to a charge on the said undivided third 
 part or share of her the said Ellen Miles Wastell, and by 
 the decree made on the hearing of the said cause, it was 
 declared that the said Charles Ford was entitled to a charge 
 on the said undivided third part or share, and it was re- 
 ferred to the Master to take an account of what was due to 
 the said Charles Ford for principal, interest, and costs, and 
 the same was ordered to be paid by the said Ellen Miles 
 Wastell within six months after the Master should have 
 
280 PLEADINGS. 
 
 made his report, and in default thereof she was to stand 
 foreclosed of all right, title, and interest' in the said un- 
 divided third part or share, and the said Ellen Miles Was- 
 tell did not pay the amount so found due to the said Charles 
 Ford, and by an order made in the said cause on the 
 twenty-third of March one thousand eight hundred and 
 forty-seven, it was ordered that the said Ellen Miles Was- 
 tell should from thenceforth stand absolutely debarred 
 and foreclosed of all right, title, and interest in the said 
 hereditaments an(i premises, but by an order of the l>ord 
 Chancellor made in the said cause, on the fourth of May 
 one thousand eight hundred and forty-eight, it was referred 
 to the said Master to compute subsequent interest on the 
 said judgment, and to tax the subsequent costs of the said 
 Charles Ford, and certify the same, and it was ordered that 
 the amount so certified should be paid to him by the said 
 Ellen Miles Wastell on or before the second day of motions in 
 the then hext Michaelmas Term, and the said Master by his 
 report dated ninth of August one thousand eight hundred 
 and forty-eight, certified that the total amount which would 
 be due to the said Charles tord on the ninth of November 
 one thousand eight hundred and forty-eight, would be the 
 sum of six hundred and seventy-three pounds seventeen 
 shillings and sixpence. 
 
 ' 2.' 'Fhat the said Ellen Miles Wastell applied to and re- 
 quested the plaintiff to pay off the said sum of six hundred 
 and seventy-three pounds seventeen shillings and sixpence, 
 and by an indenture of assignment dated the fourth of J^To- 
 vember one thousand eight hundred and forty-eight, and 
 made between the said Charles Ford of the first part, the said 
 Ellen Miles Wastell of the second part, and the plaintiff of 
 the third part, the said Charles Ford, assigned, transferred, 
 and set over, and the said defendant Ellen Miles Wastell 
 ratified and confirmed unto the plaintiff, all that the said 
 gum of six hundred and. seventy-three pounds seventeen 
 shillings and sixpence, so found due to the said Charles 
 Ford as aforesaid, and other sums of money in the said inden- 
 ture particularly mentioned, together with the said judgment, 
 decree, orders and report, and all benefit to which the said 
 Charles Ford was entitled thereunder, subject to a proviso 
 for redemption thereof, in case the said Ellen Miles Wastell, 
 her heirs, executors, administrators, and assigns, should, on 
 or before the fourth of November one thousand eight hun- 
 dred and forty nine, pay to the plaintiff, his executors, 
 
PLEADINGS. 281 
 
 administrators, or assigns, the sum of seven hundred and 
 twenty-eight pounds nine shillings and twopence, with in- 
 terest thereon at the rate of five pounds per cent, per 
 annum, as by the said indenture will appear. 
 
 3. That Herbert Sturmy, of No. 8, Wellington Street, 
 in the borough of Southwark, and county of Surrey, 
 gentleman, on the tenth of December one thousand eight 
 hundred and forty-six, obtained a judgment against the 
 said Ellen Miles Wastell in her Majesty's Court of Com- 
 mon Pleas, at Westminster, for the sum of three hundred 
 and ninety-seven pounds nine shillings and sixpence, and 
 the said Herbert Sturmy,* on the said tenth of December 
 one thousand eight hundred and forty-six, caused the said 
 judgment to be duly i-egistercd in the said Court of Com- 
 mon Pleas, in pursuance of the before mentioned act of 
 Parliament of the first and second years of the reign of her 
 Majesty, and by an indenture of assignment dated the 
 thirtieth of June one thousand eight hundred and forty- 
 nine, and made between the said Herbert Sturmy of the 
 one part and the plaintiff of the other part, the said sum 
 of three hundred and ninety-seven pounds nine shillings 
 and sixpence secured by the said judgment, and all sums 
 then due or thereafter to become due thereon for interest, 
 together with the said juclgment and all benefit thereof^ 
 were assigned by the said Herbert Sturmy to the plaintiff, 
 as by the said indenture will appear. 
 
 4. That Robert Salmon of 25 Bucklersbury, in the city 
 of London, auctioneer and estate agent, on the seventeenth 
 of June one thousand eight hundred and fifty-one, ob- 
 tained a judgment in the said Court of Common Pleas, 
 against the said Ellen Miles Wastell, for one hundred and 
 forty-four pounds one shilling; and the said Robert 
 Salmon, on the second of July one thousand eight hun- 
 dred and fifty-one, caused the said judgment to be duly 
 registered in the said Court, in pursuance of the before 
 mentioned act of Parliament ; and by an indenture of 
 assignment, dated the nineteenth of August one thousand 
 eight hundred and fifty-one, and made between the said 
 Robert Salmon of the one part, and the plaintiff of the 
 other part, the said sum of one hundred and forty-four 
 pounds one shilling, secured by the said judgment, and 
 all sums then due or thereafter to become due thereon for 
 interest, together with the said judgment and all benefit 
 
?82 
 
 BLEADINGS. 
 
 thereof, were assigned by the said Robert Sahnon to the 
 plaintiff, as by the said indenture will appear. 
 
 5. That by an indenture dated the said nineteenth of 
 August one thousand eight hundred and fifty-one,. -and • 
 made between the said Ellen Miles Wastell of the one part, 
 and the plaintiff of the other part, reciting, amongst other 
 things, the masters aforesaid, the said Ellen Miles Vfastell,- 
 for the considerations in the said indenture mentioned, ' 
 sold, released, assigi^ied, transferred, and confirmed her said 
 one undivided third part or share of the freehold and lease- 
 hold estates, late of the said Sir Jonathan Miles deceased, 
 and devised and bequeathed by his will, as aforesaid, unto 
 and to the use of the plaintiff, his heirs, executors, admi- 
 nistrators, and assigns, subject to a proviso for the redemp- 
 tion thereof, in case the said Ellen Miles Wastell should, 
 on or before the nineteenth of February one thousand 
 eight hundred and fifty-two, pay to the plaintiff, his execu- 
 tors, administrators, or assigns, the sum of three hundred 
 and sixty-seven pounds (which included the said sum of 
 one hundred and forty-four pounds one shilling so paid by 
 the plaintiff to the said Robert Salmon as aforesaid), with 
 interest "thereon at five pounds per cent, per annum, and 
 also the said principal sum of seven hundred and twenty- 
 eight pounds nine shillings and tvtropenee, and the 
 interest thereof^ and also the said principal sum of three 
 hundred and ninety-seven pounds nine shillings and six- 
 pence, and the interest thereof, as by the said indenture 
 will appear. 
 
 6. That the said principal sums of three hundred and 
 sixty-seven pounds, seven hundred and twenty-eight pounds 
 nine shillings and twopence, and three hundred and ninety- 
 seven pounds nine shillings and sixpence, together with an 
 arrear of interest thereon respectively, are now due to the 
 plaintiff. 
 
 7. The defendants William Butterworth Bayley, Henry 
 Porcher, and Martin Tucker Smith, claim to have some 
 charge upon the said one undivided third part or share of 
 the said Ellen Miles Wastell, and they allege that such 
 charge has or ought to have priority over the plaintiff's 
 aforesaid securities, or some of them. 
 
 8. The defendant WilUam Rranscomb claims to be a 
 judgment creditor, or to have some other x;laim or incum- 
 brance on the said undivided third part or share of the said 
 
PLEADINGS. 283 
 
 Ellen Miles Wastell ; but he admits, as the fact is, that his 
 said judgment or other charge or incumbrance is subject to 
 the plaintiff's said securities. 
 
 0". The plaintiff. has frequently applied to the defendants 
 William Branscomb and Ellen Miles Wastell, and required 
 them either to pay the plaintiff's said debt, or else to 
 release the equity of redemption of the premises, but they 
 have refused so to do. 
 
 10. The defendants pretend that there are some other 
 mortgages, charges, or incumbrances affecting the premises, 
 but they refuse to discover the particulars thereof. 
 
 PRAYKB. 
 
 The plaintiff prays as follows : 
 
 1. That an account may be taken of what is due to the 
 plaintiff for principal and interest in respect of his said 
 securities. 
 
 2. That the plaintiff may be at liberty to redeem such of 
 the defendants hereto, if any, as have charges or in- 
 cumbrances on the undivided part or shared or other 
 the premises included in the plaintiff's securities, or 
 either of them, prior to the said securities ; and 
 that the said defendants William Branscomb and 
 Ellen Miles Wastell, and each of the other de- 
 fendants hereto, if any, as have charges or incum- 
 brances on the said part or share, or premises, 
 subsequent or subject to the plaintiff's securities, may 
 be decreed to pay to the plaintiff the amount which 
 shall be so found due to him as aforesaid, together 
 with his costs of this suit, and also what, if anything, 
 the plaintiff may have to pay for such redeeming as 
 aforesaid, by a short day to be appointed for that 
 purpose, or in default thereof that they, and all per- 
 sons claiming under them, may be absolutely foreclosed 
 of and from all right and equity of redemption in 
 or to the said undivided part or share, or other the 
 premises comprised in the plaintiff's said securities, or 
 either of ihem ; or that the said undivided part or 
 share, or other the premises comprised in the plaintiff's 
 securities, or either of them, may be sold by and under 
 the direction of this Honourable Court, and that the 
 amount so found due to the plaintiff as aforesaid may 
 be paid out of the moneys produced by such sale. 
 
284 PLEADINOS. 
 
 3. That all proper and necessary directions may be given 
 for the purposes aforesaid. 
 
 4. That the plaintiff may have such further or other 
 relief as jthe nature of the case may require. 
 
 The defendants to this Bill of Complaint are 
 
 Ellen Miles Wastell, 
 William ButtervForth Bayley, 
 Henry Porcher, 
 Martin Tucker Smith, 
 
 and 
 William Branscomb. 
 
 (Name of Counsel.) 
 
 R. W. Elliot Fouster. 
 
 Bill for Redemption alleging a Disputed Account, and seeking 
 Injunction against Sale. 
 
 In Chancery. 
 
 Master of the Rolls. 
 
 John Penhall and William Pennell - Plaintiffs. 
 
 John Allen - . - - Defendant. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranvirorth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, show unto his Lordship John Penhall, 
 of Gwydir House, Brixton Hill, in the cotmty of Surrey, 
 
 fentleman, and William Pennell, of Guildhall Chambers, 
 lasinghall Street, in the city of London, official assignee, 
 the above-named plaintiffs, as follows: — 
 
 1. An indenture of mortgage, dated the second day of 
 October one thousand eight hundred and. forty-four, was 
 duly made between and executed by David Elwin Colom- 
 bine, late of Regent Street, solicitor, scrivener, and money 
 broker, of the one part, and the defendant, John Allen, of 
 
PLEADING?. 
 
 the Other part, and thereby in consideration of two thousand 
 ponnds lent and advanced by the said John Allen to the 
 said David Elwin Colombine, all that messuage, tenement, 
 and premises, called The Lodge, situate at Thistle Grove, 
 Little Chelsea, in the parish of Kensington, in the county 
 of Middlesex, with the appurtenances, were conveyed and 
 assured unto and to the use of the said John Allen, his 
 heirs and assigns, subject to redemption on payment by the 
 said David Elwin (]olombine, his heirs, executors, and 
 administrators, to the said John Allen, his executors, 
 administrators, or assigns, of the said sum of two thousand 
 pounds and interest. 
 
 2. The said David Elwin Colombine was, on the thir- 
 teenth day of March one thousand eight hundred and 
 forty-seven, duly found and adjudged a bankrupt, and the 
 plaintiff, John Penhall, has been duly chosen and appointed 
 the creditors' 'assignee of the estate and effects of the said 
 bankrupt, and the plaintiff, William Pennell, is the official 
 assignee in the said bankruptcy. 
 
 3. ThesaidDavid Elwin Colombine, beforehis bankruptcy, 
 executed a settlement on his marriage, or alleged marriage, 
 with his wife, Amy Colombine, comprising the said messuage 
 and premises, and settling the same, without referring to the 
 said mortgage to the said John Allen, which had not at that 
 time been registered, but the said settlement was made and 
 executed with intent to defeat and delay the creditors of 
 the said David Elwin Colombine, and after a considerable 
 litigation, the same has been set aside by a decree of the 
 High Court of Chancery, made on the twenty-third day of 
 March one thousand eight hundred and fifty-three, at the 
 suit of the said plaintiffs, as such assignees as aforesaid. 
 
 4. The plaintiffs being desirous that the amount due on 
 the said mortgage to the said John Allen should be 
 ascertained, and that the said mortgaged property should 
 be sold in the most advantageous manner, and that the 
 amount due to the said defendant, John Allen, should be 
 paid to him, applied to and requested the said John Allen 
 to obtain the usual order in bankruptcy for that purpose, 
 but the said defendant has refused so to do, and he threatens 
 and intends to exercise a power of sale contained in his 
 said mortgage, and to sell the said mortgaged property in a 
 secret and private manner, without due advertisement and 
 notice, at an inadequate price. 
 
 5. The plaintiffs are willing, if the defendant, John Allen, 
 
286 PLEADINGS. 
 
 SO require it, to pay him the amomit due on his 
 security when and as soon as the same shall be ascer- 
 tained, without waiting for the sale of the said property, 
 and out of the other property of the said bankrupt; 
 but the said defendant, John Allen, claims a much 
 larger sum to be due to him on the said security than is 
 really due thereon, and he refuses to give credit for sums 
 for which he ought to give credit in reduction of his said 
 security. 
 
 6. In particular, the said John Allen refuses to give 
 credit in his said mortgage account for sums amounting to 
 one thousand two hundred pounds and upwards, which he 
 has received in respect of certain securities of Mr. Capel, 
 transferred to him by the said David Elwin Colombine 
 under tke following circumstances : 
 
 7. The said David Elwin Colombine was in the habit of 
 acting on behalf of the said defendant, John Allen, in 
 making advances of money for him to various persons, and, 
 inter alia, the said John Allen advanced, through the said 
 David Elwin Colombine, the sum of three hundred ponnds 
 on a bill of exchange of a Mr. Nazer, and the sum of four 
 hundred and twenty pounds on the said securities of Mr. 
 Capel. 
 
 8 The said David Elwin Colombine, out of his own 
 monies, advanced further sums of money on the said secu- 
 rities of Mr. Capel, and the total amount for which the said 
 securities were given was two thousand seven hundred 
 pounds, of which only four hundred and twenty pounds 
 belonged to the said John Allen. 
 
 9. The said David Elwin Colombine determined to take 
 upon himself the said advance to the said Mr. Nazer, and he 
 accordingly sent to the said John Allen the said securities of 
 the said Mr. Capel for the said sum of two thousand seven 
 hundred pounds, together with the follofving letter : " To 
 John Allen, Esq., Sussex Place, Kensington. " Carlton 
 Chambers, Regent Street, July 16, 1846, "Dear Sir, 1 
 fear I shall be obliged to make a sacrifice relative to Mr. 
 Nazer, which certainly ought not to be required of me ; but 
 there are some reasons which made nie inclined to do so, 
 and rely on his protecting me hereafter. Under these cir- 
 cumstances, have the goodness to return me the bill you 
 hold with regard to Mr. Capel's security on which you have 
 advanced four hundred pounds. I propose to place the 
 whole of the papers relative to that advance in your hands ; 
 
PLEADINGS. 287 
 
 the full amount of the security is two thousand seven 
 hundred pounds. I therefore hand them over to you upon 
 the terms and understanding that you are to retain any 
 balance over and above your own four hundred pounds, and 
 apply it in discharge of any sum of money due from me to 
 you, and hereby give you full power to do what you think 
 proper in respect of the securities. I should, of course, 
 wish you to receive the money from the parties before 
 having recourse to me ; but should the parties not pay, of 
 course, I will discharge the sum due from me to you. 
 
 " I remain, &c., D. E. Colombine." 
 
 10. The said John Allen has received sums amounting 
 to 1,663Z. 19*. 6d. on the said securities of the said Mr. 
 Capel, but he claims to retain the balance thereof after 
 satisfying his own advance of 420/., with interest, in dis- 
 charge of certain monies which he alleges to be due to him 
 from the said David Elwin Colombine over and above the 
 said sum of 300/. for Nazer's bill, and he refuses to apply 
 any part thereof in discharge of the said mortgage debt. 
 
 11. The said David Elwin Colombine was indebted to 
 the said John Allen, at the time of sending the said letter, 
 in a small amount only, irrespective of the said mortgage 
 debt and Nazer's bill, against which was to be set off the 
 amount of a bill of costs owing by the said John Allen to 
 the said David Elwin Colombine. 
 
 12. The snms in respect of which the said John Allen 
 seeks to retain the amount received by him from the said 
 Mr. Capel were not debts due to him from the said David 
 Elwin Colombine, either at the time of sending the said 
 letter or at any other period, but the same are sums which 
 were advanced by the said John Allen to various parties 
 through the said David Elwin Colombine, and the said 
 John Allen does not allege that, except as to the said 300/. 
 of Nazer's, the said David Elwin Colombine ever took upon 
 himself, or guaranteed such advances, or any of them, but 
 he insists that the securities on which such advances were 
 made were inadequate and improper securities, and were 
 known to the said David Elwin Colombine to be so, and 
 that therefore the said David Elwin Colombine is liable to 
 him, the said John Allen, for the full amount of the said 
 advances. 
 
 13. The said John Allen is not entitled to retain any 
 part of the sums received by him from the said Mr. Capel 
 
288 PLEADINGS. 
 
 in discharge of such liabiHiv of the said Uavid Elwiri 
 Colombine, even if the same exists, but the same ought to 
 be applied in reduction of the debts due to him from the 
 said David Elwin Colombine, including the amount due on 
 the said mortgage. 
 
 PBAYER. 
 
 The plaintiffs pray as follows: — 
 
 1 . That an account may be taken of what is due and 
 owing to the said John Allen on his said mortgage 
 security and that on payment by the plaintiffs of the 
 amount which shall be found to be so due, which pay-' 
 ment the plaintiffs are willing and hereby offer to make, 
 the said John Allen may reconvey the said mortgaged 
 property, and deliver up all title-deeds and documents 
 relating thereto to the plaintiffs, or as they shall direct. 
 
 2. That the said defendant John Allen, may be restrained 
 by- the order and injunction of this Honourable Court 
 from selling or offering to sell the messuage and 
 premises comprised in the said mortgage, and from 
 parting with the legal estate therein. 
 
 3. That the plaintiffs maj' 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 
 
 John Allen. 
 
 (Name of Counsel.) 
 
 J. V. Prior. 
 
 Bill by Judgment Creditor against Debtor and his Assignee 
 of certain Funds in Court, for Discovery, and to set aside 
 Fraudulent Assignment. 
 
 In Chancery. 
 
 Master of the Rolls. 
 
 Thomas Bisgood - - - Plaintiff. 
 
 John Lloyd, Mary Lloyd, and her 
 
 Majesty's Attorney General - Defendants, 
 
PLEADINGS- 289 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Edward Burtenshaw, Baron 
 St. Leonards, of Slaugham, in the county of Sussex, 
 Lord High Chancellor of Great Britain. 
 
 'e*- 
 
 Humbly complaining, sheweth unto his Lordship Thomas 
 Bisgood, of No. 36, Carey Street, Lincoln's Inn, in the 
 County of Middlesex, Gentleman, the above named plain- 
 tiff, as follows: 
 
 1. Prior to, and in the month of June one thousand 
 eight hundred and fifty-one John Lloyd, now or late of 
 No. 21, Earl's Terrace, Kensington, in the said county of 
 Middlesex, but whose present place of residence plaintiff is 
 unable to discover, one of the above-named defendants, was 
 justly and truly indebted to the plaintiff in this suit, in the 
 sum of 539/. 16*. for business done by the plaintiff as 
 an attorney and solicitor for and on account of the said 
 defendant John Lloyd, and on the 26th day of June one 
 thousand eight hundred and fifty-one, the said last named 
 defendant having neglected and refused to pay the debt so 
 due and owing to the plaintiff, and the plaintiff's bill of 
 costs having been duly made out and signed and delivered 
 by the plaintiff to the said defendant John Lloyd for the 
 requisite period, and the said defendant John Lloyd having 
 for a long time neglected, and evaded the payment of such 
 debt so due to the plaintiff, notwithstanding divers applica- 
 tions made to him by and on the part of the plaintiff for the 
 purpose, the plaintiff, on the 26th day of June one thousand 
 eight hundred and fifty-one, duly commenced his action at 
 law in her Majesty's Court of Queen's Bench, against the 
 said defendant John Lloyd for recovery of such debt, and 
 the said defendant pleaded to such action that he never was 
 indebted, and the said action duly came on for trial, and 
 was tried on the 14th day of November one thousand eight 
 hundred and fifty-one, and the plaintiff recovered a verdict 
 in the said action, for the said sum of 539/. 16s. the debt so 
 claimed by him, with l*. nominal damages against the said 
 defendant John Lloyd, and the plaintiff's costs of such; 
 action were subsequently taxed at the sum of 47/. 10*. and 
 the same being added to the said debt and damages make 
 the aggregate sum of 587/. 7s. and final judgment was duly 
 
 u 
 
290 
 
 PLKADINGS. 
 
 entered up and signed at the suit of the said plaintiff in the 
 said action, on the 21st day of November one thousand 
 eight hundred and fifty-one, against the said defendant 
 John Lloyd, for the said aggregate sum. 
 
 2. Applications had been made by and on behalf of the 
 plaintiiF to the said defendant John Lloyd, for payment of 
 the said debt for a long period prior to the commencement 
 of the said action, and prior to the apparent date of the 
 alleged deed of assignment hereinafter mentioned, and such 
 payment was neglected and evaded by and on the part of 
 the said defendant John Lloyd, and after the commence- 
 ment of the said action by the plaintiff, and the recovery of 
 the said judgment in the said action, the said defendant 
 John Lloyd absconded and kept out of the way to -avoid 
 process of execution against him at the suit of the plaintiff 
 in the said action, and the plaintiflF was compelled and 
 obliged to take, and did accordingly take, due proceedings 
 against the said defendant John Lloyd by way of outlawry 
 in the said action, and such proceedings in outlawry against 
 the said defendant John Lloyd were duly prosecuted and 
 cotnpleted, and judgment in outlawry against him at the 
 suit of the said plaintiff was duly entered up and recorded 
 on or about the 20th day of May in this present year one 
 thousand eight hundred and fifty-two, and in execution of 
 stich judgment in outlawry a writ of special capias utlagatum 
 was duly issued therein at the suit of the plaintiff, directed 
 to the Sheriff of Middlesex, but the said defendant John 
 Lloyd still absconded and kept out of the way to prevent 
 being taken under such process of outlawry, and the said 
 defendant John Lloyd became, and was then, and is now, 
 duly outlawed according to the laws and usages of these 
 realms, and the said sheriff of Middlesex duly held an inqui- 
 sition upon the said writ of capias, and duly made his return 
 to such writ to the effect, as the fact is,"'that the jurors 
 therein mentioned on their oaths found and returned that 
 the said defendant John Lloyd, in the said writ named, on 
 the 20th day of May in the said writ mentioned was, and 
 on the day of taking that inquisition was possessed as of his 
 own goods and chattels of and in the goods aiid chattels 
 following, that is to say, of a certain sum of 324Z. 18«. 8d. 
 31. per cent, consolidated Bank annuities, and of a certain 
 Slim of 4/. 14«. 8d. cash then standing and being in the 
 fiaHve and hands of the Accountant General in Chancery 
 tp the credit of a certain suit in Chancery, in which the 
 
PLEADINGS. 291 
 
 sail! John Lloyd was plaintiff, and one Joseph Peers was 
 defendant, and which stock and monies were by an order 
 of the High Court of Chancery made in the said cause 
 ordered and directed to be paid to the said John Lloyd; 
 and that the jurors aforesaid, upon their oath aforesaid, fur- 
 ther found that the said John Lloyd was on the 20th day of 
 May aforesaid, and on the day of taking that inquisition, 
 was possessed as of his own goods and chattels of an interest 
 in a certain sum of 1459Z. 18*. lOrf. 3Z. percent, consolidated 
 Bank annuities, and a certain other sum of 86Z. 8s. Id, 
 cash, being an accumulation of the dividends upon the said 
 last mentioned stock, then and still standing, and being in 
 the name and hands of the said Accountant General, to the 
 credit of the account of the widow and legatees of the tes- 
 tator Francis Ignace Reybold, in a certain other suit in 
 which Marie Cecile Lardin, by her next friend, was plain- 
 tiff, and William Scott Binny and others were defendants, 
 under and by virtue of a certain order of the High Court of 
 Chancery, and a certificate of William Wingfield, esq., a 
 master in ordinary in Chancery, made respectively in the 
 said last mentioned suit, and under and by virtue of which 
 said order and certificate a certain debt of 220^. due from the 
 said Joseph Lardin and Marie Cecile, his wife, was ordered 
 to be paid to the said John Lloyd, out of the dividends 
 accruing upon the said sum of 1459Z. 18s. lOd., as and when 
 the same should arise and become due and payable, and be 
 sufficient to pay such debt or sum of 220/., and the jurors 
 aforesaid, upon their oaths aforesaid, found that the value of 
 the title, and interest of the said John Lloyd, of and in the 
 said stock and monies respectively, was and amounted to 
 the sum of 549/. 13s. 4d., which said goods and chattels he, 
 the said sheriff, on the day of taking that inquisition, had 
 caused to be taken and seized into Her Majesty's hands 
 according to the command of the said writ, and that the 
 jurors aforesaid, upon their oath aforesaid, further found 
 that the said John Lloyd, on the 20th day of May in the 
 said writ mentioned, had not, nor on the day of taking that 
 inquisition, bad he any other or more goods or chattels, nor 
 any lands" or tenements in his the said sheriff's bailiwick, 
 to the knowledge of the said jurors, which he could cause to 
 be taken and seized into Her Majesty's hands as by the 
 said writ commanded. 
 
 3. The plaintiff has hitherto been, and is now, wholly 
 unable and prevented by the said defendant John Lloyd, 
 
 u2 
 
^^^ PLEADINGS. 
 
 from obtaining payment of the said debt so recovered by 
 the plaintiff as aforesaid. 
 
 4. The plaintiff is advised, and the fact is that the said 
 defendant John Lloyd, became and is now absolutely 
 entitled to the sum of 324Z.'18*. 8rf. Bank 3Z. per cent, 
 annuities, in the said inquisition mentioned, and the sum 
 pf cash therein mentioned arising from the said Bank an- 
 nuities, and the dividends which have since accrued and 
 are now accruing on the same Bank annuities, the said sum 
 of 3241. 18,9. 8d. annuities being, as in the said inquisition 
 mentioned, standing in the name of the said Accountant 
 General of this Court, in trust, in a suit of Lloyd v. Peers 
 therein mentioned, and referred to. 
 
 5. The plaintiff has duly applied for and is prosecuting 
 his application to the Crown for a grant to the plaintiff, 
 usually issued in like cases, of the goods and chattels of the 
 said defendant John Lloyd, as such outlaw as aforesaid, in 
 order to and for the purpose of the same, being received 
 and applied by the plaintiff towards satisfaction and dis- 
 charge of his said debt so recovered by him, and his subse- 
 quent expenses which have been occasioned to him and he 
 has been necessarily put to and incurred in the matter, 
 but such grant has not yet been completed, and Sir Frede- 
 rick Thesiger, Knight, her Majesty's Attorney General, 
 claims an interest in the said fund, in right of the Crown, • 
 as being the goods of such outlaw as aforesaid, and is 
 accordingly a defendant hereto. 
 
 . 6. Pending the proceedings aforesaid, and whilst the said 
 defendant John Lloyd was evading the payment of the 
 debt so due from him to the said plaintiff, the said John 
 Lloyd combining and confederating with Mary Lloyd of 
 No. 21, Earl's Terrace, aforesaid, spinster, the other de- 
 fendant hereto, his daughter, formed the fraudulent scheme 
 and contrivance of depriving, if he could, the plaintiff from 
 obtaining the said fund in Court in the said suit of IJoyd 
 », Peers, in or towards payment of his said debt, and the 
 said defendant Mary Lloyd, lately presented her petition 
 to this Honourable Court, addressed to the Right Honour- 
 able the Master of the Rolls in the said suit of Lloyd v. 
 Peers, and thereby, after stating and showing the right 
 and title absolutely of the said defendant John Lloyd to 
 the fund in Court in the said suit, the said defendant Mary 
 Lloyd has by her said petition alleged, contrary to the 
 truth, certain matters therein set forth, purporting to show 
 
PLEADINGS. 293 
 
 a real and bonsl fide consideration to have subsisted for the 
 said alleged deed of assignment hereinafter mentioned, and 
 hereby sought to be set aside, and has further alleged that 
 in pursuance of the alleged arrangement and agreement 
 made by the said defendant John Lloyd with the said 
 defendant Mary Lloyd his daughter therein mentioned, 
 the said defendant John Lloyd by indenture dated the 
 22nd of May one thousand eight hundred and fifty-one, 
 and made between him the said defendant John Lloyd of 
 the one part, and the said defendant Mary liloyd of the 
 other part, after reciting the levying of the execution therein 
 mentioned, and that the said defendant Mary Lloyd had paid 
 the amount thereof out of her own proper monies, and also 
 the institution of and proceedings in the said suit of Lloyd 
 V. Peers; it was witnessed, and the said defendant John 
 Lloyd did covenant with the said defendant Mary Lloyd, 
 that he would prosecute the said suit until the final 
 decree should be pronounced by the said Court therein, or 
 the sum of 314/. Is. 6d. therein mentioned be paid; and 
 would, immediately upon the recovery or repayment of the 
 said sum of 314/. 75. 6d. pay the same to the said defend- 
 ant, Mary Lloyd, in part discharge of the monies therein 
 alleged to be due and owring to her as therein mentioned, 
 and also that he would, at any time before the recovery or 
 repayment of the said sum of 314/. 7s. 6d. on the request 
 of the said defendant Mary Lloyd, assign and assure the 
 same unto the said Mary Lloyd, for her absolute benefit, 
 with all powers and authorities for enabling her to recover 
 the payment thereof, and that in the meantime the, said 
 defendant John Lloyd, would stand possessed of and in- 
 terested in and entitled to the said sum of 314/ 7s. 6d. 
 upon trust only, and for the sole and absolute use and 
 benefit of the said defendant Mary Lloyd. 
 
 7. The funds in Court in the said suit, Lloyd v. Peers, 
 in the said inquisition, and heretofore mentioned, arise 
 from the investment of the said simi of 314/. 7s. Gd. in 
 the said alleged deed of assignment mentioned, and thereby 
 purported to be assigned. 
 
 8. Immediately on the plaintiff completing his said judg- 
 ment in outlawry against the said defendant, John Lloyd, , 
 the plaintiff caused due notice to be given at the office of 
 
 the Accountant General of this Court thereof, and of the 
 plaintiff's intention to aj)ply for and obtain such grant of 
 
294 PLEADING8. 
 
 the goods and chattels of the said defendant John Lloyd, 
 in order thereby to prevent the said funds from being 
 transferred or paid out to any other person than the 
 plsdntiff towards satisfaction of his said debt, and tlie 
 plaintiff being served with the said petition did appear, by 
 his counsel, on the same coming on for hearing on the 3rd 
 day of August last, when the Court was pleased to order 
 the said petition to stand over, and to restrain the fund in 
 favour of the plaintiff, in order that the plaintiff might file 
 his bill, or take such other proceedings to set aside the said 
 pretended deed of assignment as he might be advised, and 
 the said petition now stands over accordingly. 
 
 9. The said alleged deed of assignment so purporting 
 to bear date the 23rd day of May one thousand eight 
 hundred and fifty-one, was not, so far as plaintiff can at 
 present discover, executed on the day the same so purports 
 to bear date, and the said deed, if the same existed, was 
 in fapt kept secret from and never disclosed to the solicitor 
 of the said John Lloyd, in the said suit, Lloyd «. Peers, or 
 any other person, until after the plaintiff had taken such 
 proceedings in outlawry, and otherwise attempted to re- 
 cover and enforce his said debt as aforesaid, and the said 
 defendant Mary Lloyd, does herself state and admit that 
 she first took and made known' the said deed to Mr. 
 JJilling, the solicitor of the said defendant John Lloyd, 
 after the date of the decree in the said suit of Lloyd v. 
 Peers. 
 
 IQ. The said deed was not prepared by any attorney or 
 solicitor, but by some other unauthorized person, and with 
 the view and for the purpose of secrecy, and in order that 
 the same should be brought forward only in case of neces- 
 sity, and for the purpose of preventing the plaintiff from 
 recovering his said just demand by means of the said fund 
 in Court in the said suit of Lloyd v. Peers. 
 
 11. No good or valid consideration for the said pre- 
 tended deed of assignment under colour whereof the said 
 defendant Mary Lloyd now claims to be entitled to the 
 fund hereinbefore in that behalf mentioned, was actually 
 and bon4 fide paid or given by the said defendant Mary 
 Lloyd to the said defendant John Lloyd, or if any such 
 consideration was ever given the same was or has been 
 in some manner returned or restored, or secured to or for 
 the benefit of the said defendant Mai'y Lloyd, and the said 
 
PLEADINGS. 295 
 
 pretended deed of assignment was made and executed by 
 fraud and covin between the said defendants John Lloyd 
 and Mary Lloyd his daughter, and with the view and 
 intent thereby to defeat and delay the plaintiff in the reco- 
 very of his said just debt so recovered by him against the 
 said defendant John Lloyd, and such debt still remains 
 wholly due and unpaid to the plaintiff, together with his 
 subsequent costs and expenses occasioned to and incurred 
 by him in and about the premises, and such fraud and 
 covin would be shown and appear, if the defendants, John 
 Lloyd and Mary Lloyd, would, as they ought to do, make 
 a full and fair discovery in the premises, including the cir- 
 cumstances relating to the said deed, and a full and fair 
 discovery of such documents as are or ought to be in their 
 possession, custody, or power. 
 
 12. There are now, or heretofore were, in the possession, 
 custody, or power of the said defendants, John Lloyd and 
 Mary Lloyd, or one of them, or in the possession, custody, 
 or power of some person or persons, as their, or one pf 
 their, solicitors or solicitor, or agents or agent, or otherwise, 
 or they, the said last-mentioned defendants, or one of them 
 know, or have, or hath reason to believe or suspect there 
 are, in the possession of some other persons or person, but 
 whom the plaintiff is unable to discover, except from the 
 said defendant's divers written instructions, deeds, drafts 
 and copies of deeds and other papers, proceedings in the 
 said action at law, and other proceedings at law and in 
 equity, accounts, books of accounts, banker's books, cheques, 
 cheque ends, bills of costs, drafts, and copies of bills pf 
 costs, receipts, vouchers, memoranda, letters, copies of and 
 extracts from letters, cases stated for counsel's and other 
 opinions, and other papers, writings or documents relating 
 or referring to, or containing some entries or entry, or 
 particulars or particular, relating or referring in some man- 
 ner to the preparation and execution of the said alle,ged 
 deed of assignment, and relating to the purpose and object 
 thereof and the preparation and execution thereof, and to 
 the alleged consideration for the same, and to the said 
 action at law, and proceedings in outlawry, and to other 
 matters herein stated and referred to, and by which the 
 truth of such matters would appear, or they the said last- 
 mentioned defendants hereto, or one of them, have or hath 
 seen or heard of the same several documents and par- 
 
296 
 
 PLEADINGS. 
 
 ticulars, or some of them, or know, suspect, or believie 
 where the same are, and what is become thereof. And -the ■ 
 said last-mentioned defendants, or one of them, or some 
 persons or person, by or with their or one (rf their fiuthoriiyi 
 privity, or knowledge, have or hath destroyed, obliterated, 
 altered, or added to or parted with some of such books, 
 accounts, and other documents aforesaid, but they refuse to 
 make discovery thereof as they ought to do, and they 
 ought to set forth a proper list and schedule of all the said 
 particulars. 
 
 13. The said defendants, John Lloyd and Mary Lloyd, 
 or one of them, have or hath also at various times had 
 divers conversations with divers persons, wherein have been 
 stated, or admitted, or referred to the several matters here- 
 inbefore mentioned, or some of them, and there have been 
 also written to and received from and between the said 
 defendants, and from and between them the said defendants, 
 and from and between them, or one of them, and various 
 other persons, and from and between various persons, divers 
 letters, wherein or in some of which letters respectively, the 
 several matters hereinbefore stated, or sonle of them, have 
 or hath been admitted or referred to, but the said de- 
 fendants refuse to make discovery thereof as they ought 
 to do. 
 
 PRAYER. 
 
 The plaintiff prays as follows : 
 
 1. That the several defendants may answer the premises, 
 and that the defendants, John Lloyd and Mary Lloyd, 
 may make a full and true discovery in relation to the 
 matters aforesaid. 
 
 2. That the said pretended deed of assignment, bearing 
 date the 22nd day of May one thousand eight hun- 
 dred and fifty-one may be declared to be fraudulent 
 and void against the plaintiff in this suit, and may be 
 set aside, and decreed to be delivered up to be 
 cancelled accordingly. 
 
 3. Thiat the defendants John Lloyd and • Mary Lloyd 
 may be decreed to pay all the costs of and occasioned 
 by this suit. 
 
PLEADINGS. 297 
 
 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, 
 
 John Lloyd, 
 
 Mary Lloyd, and 
 
 Her Majesty's Attorney General. 
 
 - (Name of Counsel). 
 
 W. Rogers. 
 
 Bill for Account of Partnership Profits upon a Joint Adven- 
 ture for Guano. 
 
 In Chancery. 
 
 William Harvey Alexander - - Plaintiff. 
 
 William Hawes Simms, Henry Ernest, 
 William Taylor, Edward How, 
 and the Trustees of the Liverpool 
 Docks - - . _ - Defendants. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship William 
 Harvey Alexander, of Liverpool, in the county of Lan- 
 caster, shipowner, the above-named plaintiff, as follows : 
 
 1. The plaintiff was, in and previously to the month of 
 August one thousand eight hundred and fifty-one, the duly 
 registered owner of eight sixty-fourth parts or shares of the 
 ship or vessel called the Norman, duly registered at the port 
 of London, and of which the defendant Edward How was 
 the captain. 
 
 2. The defendant William Hawes Simms, was at the 
 same time the duly registered owner of the other fifty-six 
 
298 
 
 FLEADINOS. 
 
 gixty-fourth parts or shares of the said ship or vessel, subject 
 to a duly registered mortgage thereof to the defendant 
 William Taylor dated the second day of October one 
 thousand eight hundred and fifty, with powers or trusts 
 therein contained, enabling the said William Taylor to 
 make sale of such fifty-six sixty-fourth parts or shares for 
 securing the sum of seven hundred and fifty pounds and 
 interest. 
 
 3. The defendant Wijliam Taylor did not, until the time 
 hereinafter stated, take possession of the share of the said 
 defendant William Hawes Simms, in the said ship or vessel 
 under or by virtue of his said mortgage, and the defendant 
 William Hawes Simms was, in the month of August one 
 thousand eight hundred and fifty-one, notwithstanding the 
 said mortgage, in possession of his share of the said ship, 
 and the said plaintiff was in possession of his own shares in 
 the said ship. 
 
 4. In the month of August one thousand eight hundred 
 and fifty-one, the plaintiff and the said William Hawes 
 Simms determined to send the said ship to Patagonia, and 
 thence to the neighbouring islands, for a cargo of guano. 
 
 5. It is alleged by the defendants that the said Ed- 
 ward How chartered the said ship to the said William 
 Hawes Simms, trading under the firm of Simms and Com- 
 pany, for the said voyage, paying freight for the guano at 
 the rate of three pounds ten shillings per ton, but the 
 plaintiff denies that there was any such cliarter party binding 
 upon him, and insists that the said voyage was undertaken 
 on the joint account of the owners. 
 
 6. Considerable expenses were incurred in the outfit of 
 the said ship for the said voyage, and many debts in respect 
 thereof still remain unpaid, for which the plaintiff and the 
 defendant William Hawes Simms are liable. 
 
 7. The said ship sailed on her said voyage, and procured 
 a large quantity of guano, and returned to Liverpool on the 
 tenth day of July one thousand eight hundred and fifty-two. 
 
 8. Before the said ship arrived, the said defendant Willjam 
 Hawes Simms bad stopped payment, jand he has since by 
 deed assigned all his estate and effects to the defendant 
 Henry Ernest, as a trustee for his creditors. 
 
 9. The said Edward How, as captain of the said ship, 
 sent to the plaintiff a bill of lading for one-eighth part of 
 the said guano, without referring to the payment of any 
 freight, and he also sent to the said William Hawes Simms 
 
PLEADINGS. 299 
 
 a bill of kding, which it is alleged was for the whole of the 
 said cargo, subject to the payment of freight, at three 
 pounds ten shillings per ton, according to the said alleged 
 charter party. 
 
 10. The said ship was taken into the Albert Docks at 
 Liverpool, and the cargo discharged there. 
 
 11. By the Liverpool Dock Act 1851, it is amongst other 
 things enactedi that all goods warehoused in the said Albert 
 Docks shall be liable to the same claim or lien for freight, as 
 the same were subject to on board the ship or vessel from 
 which the same w'ere unloaded. 
 
 12. Shortly after the arrival of the said ship, the defend- 
 ant William Hawes Simms ciused the following notice to 
 be given to the said Dock Company : " To the Trustees of 
 the Liverpool Docks, Gentlemen, on behalf of Messieurs 
 Simms and Company, of Old Bond Street, London, we 
 now produce the original bill of lading, duly endorsed for 
 the cargo of guano ex 'Norman,' now discharging at your 
 docks, and we have to request that you will not permit any 
 person to interfere with or dispose of the cargo, unless by 
 the order of our clients. We are Gentlemen, your's obe- 
 diently, Jackson and Reed." 
 
 13. About the same time the defendant William Taylor, 
 caused the following notice to be given to the said Dock 
 Company : " To the Chairman of the Liverpool Docks, 
 Sir, we are desired by Messieurs Wilde Eees Humpljipey and 
 Wilde Solicitors London, to intimate to you that their client 
 Mr. William Taylor of Croydon, the mortgagee of 56-64 ths. 
 of the ship Norman, How Master, claims to be interested 
 in the cargo of guano by that vessel, now in the course of 
 delivery in the Albert Dock Warehouses, siich cargo being 
 the earnings of the said vessel on her last voyage, and you 
 will be pleased to cause a minute of such claim to be en- 
 tered accordingly. And you will please to take notice not 
 to deliver the said cargo or any part of it to any person or 
 persons whomsoever without the consent of the said William 
 Taylor. We are. Sir, Yours respectfully, Lowdnes Robinson 
 and Bateson, 7 Brunswick Street, 20 July 1852." 
 
 14. The said defendant Edward How also caused the 
 following notice to be given to the said Dock Company: 
 "Stoppage for Freight pursuant to Act 14th and 15th 
 Victoria cap. 64, sec. 45. To The Trustees of the Liver- 
 pool Docks, I hereby give you notice to detain all the 
 undermentioned Goods which are landed in your Albert 
 
300 
 
 PLEADINGS. 
 
 Dock* (with the exception of Samples and Weight of the 
 same) late on board the ship Norman from Patagonia, 
 whereof I am Master, until the freight due thereon, as herein 
 specified, shall be duly paid or satisfied, in proof of which 
 you will be pleased to receive the directions of Mr. John 
 Holden, Solicitor, 3 York Buildings, Liverpool. 
 Liverpool 20 day of July 1852. 
 
 Description 
 of Goods 
 
 Quantity 
 
 Consignees 
 
 Claim for freight 
 
 mark Guano in 
 none Bags 
 
 about 
 290 Tons 
 
 W. H. Simms £3. 10. P Ton. 
 
 & Co. or about £1190. 
 
 London. . inclusive of 40 Tons 
 
 yet on board 
 
 Edward How, 
 
 Master of the said Ship, 
 
 Norman. 
 
 " * The delivery of Goods overside must be the act of the Captain 
 or Officer in charge of the vessel." 
 
 15. The plaintiff also gave the said Dock Company 
 notice of his claims in respect of the said guano. 
 
 16. On the twenty-third day of July one thousand eight 
 hundred and fifty-two, the said William -Taylor took pos- 
 session of his fifty-six sixty fourth shares of the said ship 
 as mortgagee thereof, and the said William Taylor has since 
 paid the wages of the crew of the said vessel for the said 
 voyage, except the wages of the said Edward How, the 
 master. 
 
 17. At the time when the said William Taylor so took 
 possession, a great part of the said guano had been dis- 
 charged, and was then lying in the dock warehouses, and 
 the residue thereof has since been discharged, and the whole 
 of the said guano is now lying in the said warehouses, and 
 the same oiight forthwith to be sold and disposed of, but the 
 said Dock Company refuse to deal therewith, or to dispose 
 thereof, except upon the joint order of the plaintiff and the 
 other defendants. 
 
 18. The said William Taylor, as mortgagee as aforesaid, 
 and the plaintiflF, have sold the said ship and vessel. 
 
 19. The plaintiff insists, that the said guano was partner- 
 ship property of the plaintiff and the defendant William 
 Hawes Simms, and is liable in the first place to all the 
 expenses of the outfit of the said vessel, and the reimburse- 
 ment to the said William Taylor of the lamount paid by him 
 
PLEADINGS. 301 
 
 for wages, and also in the payment of the disbursements in 
 respect of the said voyage, and the other disbursements and 
 expenditure of the plaintiff and the said William Hawes 
 Simms, in, about, and incident to their joint employment of 
 the said ship or vessel; and that the said William Taylor, 
 as the mortgagee of the said ship or vessel, has no interest 
 in the said cargo of guano, or if he has any such interest it 
 is only in respect of the share of the said William Hawes 
 Simms in the net proceeds thereof after payment of all 
 such expenses and disbursements as aforesaid, hut the said 
 William Taylor claims to receive seven-eighths of the gross 
 proceeds of the said guano, or of the sum payable for freight 
 of the said guano, under the said alleged charter party, 
 without making any payment in respect of the expenses and 
 disbursements of the said ship or vessel, and he and the said 
 William Hawes Simms refuse to concnr in any sale of the 
 said guano, for the purpose of paying such expenses and 
 disbursements as aforesaid. 
 
 20, The plaintiff insists, that even if there were a valid 
 charter party of the said ship or vessel, so that he is entitled 
 to freight only, and not to a share of the said guano, yet 
 that all the expenses attending the oiitfit of the said vessel, 
 and of and incident to the said voyage, and all other the 
 disbursements and expenditure of the plaintiff and the said 
 William Hawes Simms, in, about and incident to their joint 
 employment of the said ship or vessel, and the repayment 
 to the said William Taylor of the wages of the crew, ought 
 to be paid in the first place out of the gross amount of such 
 freight, and that the plaintiff is entitled to one-eighth part 
 of the net freight, after payment of such expenses and 
 disbursements. 
 
 21. By<:ertain acts of Parliament, and particularly cer- 
 tain acts passed respectively in the 8 th year of Queen Anne 
 chap. 12, the 11th of George II chap. 32, and the 51st of 
 George III chap. 143, the docks of the port of Liverpool 
 are vested in the corporation of the town of Liverpool, as 
 trustees of such docks, and it was enacted by the said last- 
 mentioned act, that the said corporation of Liverpool should, 
 for the purposes of the said acts, be known by the style or 
 name of the Trustees of the Liverpool Docks. 
 
 22. The corporation of Liverpool have ever since con- 
 tinued to be and are now the trustees of the said docks, 
 under the style of the Trustees of the Liverpool Docks, and 
 have a common seal as such trustees, and sue and are liable 
 
302 PLEADINGS. 
 
 to be sued as such trustees, under the style or nanie of the 
 Trustees of the Liverpool Docks. 
 
 23. By an act of Parliament passed in the 4th year of 
 Her Maijesty, chap. 30, the said wet dock at Liverpool, 
 called the Albert Dock, was formed, and the said Albert 
 Dock is now vested in the corporation of Liverpool, under 
 the name of the Trustees of the Liverpool Docks, and the 
 said corporation are the trustees of the said dock under such 
 style or name as aforesaid. 
 
 PRAYER. 
 
 The plaintiflF prays as follows : 
 
 1. That the said guano, being the cargo of the said ship 
 or vessel, may be sold, and that the proceeds thereof 
 may be applied in and towards payment of the sum 
 remaining unpaid in respect of the expenses and dis- 
 bursements of and incident to the outfit of the said 
 vessel and the said voyage, and in the repayment to 
 the said William Taylor of the wages of the crew, and 
 also in payment of all other the disbursements and 
 expenditure of the plaintiff and the said William Hawes 
 Simms, in, about, and incident to the joint employment 
 of the said ship or vessel, and that the net residue of 
 the proceeds of the said guano may be divided between 
 -the plaintiff and the said Henry Ernest, as assignee of 
 the said William Hawes Simms, in proportion to their 
 respective shares in the said ship or vessel, and having 
 regard to their respective payments on account of the 
 expenditure and disbursements thereof. 
 
 2. If the Court shall be of opinion that the plaintiff is 
 entitled to a share of freight only, and not to a share 
 of the said guano, then that the amount of the freight 
 payable in respect of the said voyage may be ascer- 
 tained, and that the sums remaining unpaid in respect 
 of such expenses and disbursements as aforesaid may be 
 paid thereout, and that the net balance of such freight 
 may be divided between the plaintiff and the said 
 William Hawes Simms, or the said Henry Ernest and 
 William Taylor, as claiming under him, in proportion 
 to their respective shares in the said ship, having regard 
 to their respective payments on account of such ex- 
 penditure and disbursements. 
 
PLKADINGS. 303 
 
 3. That some proper person may be appointed to receive, 
 sell and dispose of the said guano or the said freight, 
 as the case may be. 
 
 4. That all proper and necessary accounts may be taken 
 for the purposes aforesaid, 
 
 5. 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, 
 
 William Hawes Simms, 
 
 Henry Ernest, 
 
 William Taylor, 
 
 Edward How, and 
 
 The Trustees of the Liverpool Docks. 
 
 (Name of Counsel). 
 
 J. V. Prior. 
 
 Bill for an Injunction to restrain the pulling down 
 Buildings and destroying Pleasure Grounds. 
 
 In Chancery. 
 
 Lord Chancellor. 
 
 Vice Chancellor Stuart. 
 
 Charles Dean and Mary Ann his wife, 
 and Louisa Panton, an infant under 
 the age of twenty-one years, by the 
 said Charles Dean her next of kin - Plaintiffs. 
 
 John Brindley , - - - Defendant. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Edward Burtenshaw, 
 Baron Saint Leonards, of Slaugham, in the county 
 of Sussex, Lord High Chancellor of Great 
 Britain. 
 
 Humbly complaining, show unto his Lordship Charles 
 Dean, of Soughton Hali, in the county of Flint, and Mary 
 
304 PLEADINGS. 
 
 Ann his wife, and Louisa Panton, of Soiighton Hall afore- 
 said, an infant under the age of twenty-one years, by the 
 said Charles Dean her next friend, the above named 
 plaintiffs, as follows: 
 
 1. Thomas Panton, late of Tarvin Hall, in the county of 
 Chester, gentleman, deceased, was, at the date of his will 
 hereinafter stated, and thence continued up to, and was at 
 the time of his death, seised for an estate of inheritance, in 
 fee simple, of and in the messuages, lands and hereditaments 
 hereinafter mentioned. 
 
 2. The said Thomas Panton duly made and published 
 his last will and testament in writing, executed and attested 
 in such manner as was then by law required for rendering 
 valid devises of freehold estates of inheritance, and thereby 
 gave and devised as follows : " I give, devise and bequeath 
 unto my said wife Mary Ann Panton, as executrix, and 
 to Thomas Bagnall, esq., surgeon, and Joseph Janion, 
 draper, both of the city of Chester, my executors, their heirs, 
 executors, administrators and assigns,' upon trust for my 
 said daughter Louisa Panton, her heirs and assigns, for 
 her care, bringing up and education, until she arrives, at 
 the age of twenty-one years, all my lands and freehold 
 property whatsoever, wheresoever, and of what nature or 
 kind soever, subject to paying the above-mentioned yearly 
 annuities which I hereby charge upon my real estate, and 
 after that time I wish her to have all in her own possession, 
 paying the aforesaid annuities, but if she should die before 
 that time, or leave no lawful issue, I give and devise the 
 said freehold property to my said wife Mary Ann Panton, 
 her heirs and assigns, for ever." 
 
 3. The said Thomas Panton died in the month of 
 September one thousand eight hundred and thirty-seven, 
 without altering or revoking his said will, and the plaintiff 
 Mary Ann Dean is his wife Mary Ann named in the said 
 will, who has since his decease intermarried with the plaintiff 
 Charles Dean. 
 
 4. The several annuities given and bequeathed by the 
 said will have ceased and determined, save and except an 
 annuity thereby bequeathed to the plaintiff Mary Ann Dean. 
 
 5. The said Thomas Bagnall and Joseph Janion refused 
 to accept the trusts of the said will, and by deed dated the 
 third day of January one thousand eight hundred and 
 thirty-eight, disclaimed the devises and bequests made to 
 them by the said will. 
 
PLEADINOS. 305 
 
 6. The plaintiff Louisa Panton will attain the age of 
 twenty-one years in the month of May one thousand eight 
 hundred and fifty-three. 
 
 7. In or about the month of December one thousand 
 eight hundred and forty-two the plaintiffs Charles Dean 
 arid Mary Ann his wife entered into a parol agreement 
 with the defendant John Brindley to let to the said John 
 Brindley a messuage called Tarvin Hall, with certain lands 
 and appurtenances thereto belonging, for the term of ten 
 years from the twenty-fourth day of December one thou- 
 sand eight hundred and forty-two, at the yearly rent of 
 one hundred and twenty-sfeven pounds, and it was agreed 
 that a lease of the said premises should be priepared and 
 executed accordingly. 
 
 8. The draft of a lease of the premises was prepared in 
 pursuance of the said agreement, but from various circum- 
 stances the same has never been executed, but nevertheless 
 the said John Brindley entered into and has since con- 
 tinued and now is in possession of the said messuage and 
 premises under the said agreement, and has paid his rent 
 for the same to the plainti^ Charles Dean and Mary Ann 
 his wife. 
 
 9. The said John Brindley, in anticipation of the expira- 
 tion of his tenancy, and of his removal from the said 
 messuages and premises, has lately commenced pulling 
 down varions walls and other parts of various buildings on 
 the said premises, and has removed the materials thereof. 
 
 10. In particular the said John Brindley has pulled 
 down and carried away the materials of a brick-built room 
 roofed with slates, and used as a library, which had been 
 erected by him during his tenancy upon the old wall of part 
 of the said premises. He has also partly pulled down a 
 brick-built bath, and he has also removed an ornamental 
 wooden battlement erected on the top of some of the old 
 wails of the premises. In pulling down the said brick-built 
 room so used as a library as aforesaid, it was necessary to 
 take away various bricks from the walls on which the same 
 was erected, and the removal thereof also left the roof im- 
 perfect where the slates appeared to have been removed for 
 the erection thereof, but since such removal the said John 
 Brindley has made good such walls and roofs. He has also 
 removed certain shed serected in the scholar's playground, 
 and he has also removed several trees and shrubs which he 
 had planted on the said premises. 
 
 X 
 
3^^ PLEADINGS. • 
 
 11. The plaintiffs have given the said John Brindley., 
 notice, requiring him to desist from further acts of a similar 
 nature on the said premises, but he refuses so to do, and 
 threatens and intends to remove various other of the build- 
 ings and erections of brick and other materials made by him 
 on the said premises, including a portion of the school- 
 rooms which he has erected upon the old wall of part of the 
 said premises, and an ornamental tile coping which has been 
 placed by him on the roofs of some of the buildings, and 
 he also threatens and intends to dig up and carry away or 
 destroy various other trees and shrubs which he has planted 
 on the said premises, and to convert again into a field all 
 the land which he has formed into pleasure grounds, 
 orchards and kitchen gardens during the said term. 
 
 12. The said John Brindlfey refuses to permit any agent 
 of the plaintiffs to enter upon the said premises to view the 
 state and condition thereof. 
 
 13. The said John Brindley has already caused very 
 serious injury to the said property by his said acts, and if 
 he is permitted to carry his intentions into execution he 
 will do further and irreparable injury thereto. 
 
 PRAYER. 
 
 The plaintiffs pray as follows: 
 
 1. That the said defendant, John Brindley, his workmen, 
 servants and agents, may be restrained by the order 
 and injunction of this Honourable Court from pulling 
 down or removing any of the walls or other parts of the 
 buildings, palings or fences now being on the said 
 premises, and from digging up, removing, or destroying 
 any of the trees or shrubs, now being upon the said 
 premises, and from digging up, injuring or destroying 
 any of the existing pleasure grounds, orchards or 
 gardens of the said premises, and from doing or 
 
 .committing any other waste, spoil, damage, or de- 
 struction thereon or thereto. 
 
 2. That the said defendant may b^ restrained in like 
 manner from excluding any agent of the plaintiffs from 
 having access to the said premises at all reasonable 
 times to view the state and condition thereof. 
 
 3. That the plaintiffs may have such further or other 
 relief as the nature of the case may require. 
 
 'J'iie defendant to this Bill of Complaint is, 
 
 John Brindley. (Name of Counsel), 
 
 J. V. Prior. 
 
PLEADINGS. 307 
 
 Bill for an Account under Partnership Contract for certain 
 £xcavations and Works at the Liverpool Docks, and to 
 charge Copartners with Monies not Applied for Part- 
 
 In Chancery. 
 
 Lord Chancellor. 
 Vice Chancellor Stuart. 
 
 George Miller and Robert Blackie - Plaintiffs. 
 John Orrell, the elder, John Orrell, 
 
 the younger, and John Shortridge - Defendants. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, show unto his Lordship George 
 Miller, of Wadsley House, in the county of York, contractor, 
 and Robert Blackie, of Ford, in the county of Lancaster, 
 contractor, the above-named plaintiffs, as follows : 
 
 1. That in the year one thousand eight hundred and 
 forty-one, the defendant John Orrell the elder entered 
 into a contract with the trustees of the Liverpool Docks, to 
 execute for them certain excavations and works at the 
 Canning Dock in Liverpool, having previously agreed to 
 enter into partnership with the plaintiffs for the purpose of 
 executing such contract and any other contracts which 
 might be obtained from the said trustees, and that after- 
 wards, at the request of the defendant John Orrell the 
 elder, his son the defendant Johir Orrell the younger 
 was admitted into the said partnership. 
 
 [Set forth articles of agreement by defendants to execute 
 works as copartners with plaintiffs, under firm of John 
 
 x2 
 
308 
 
 PLEADINGS. 
 
 Orrell and Company, commencement of works, completion 
 of one dock, and subsequent dealings and transactions 
 between the partners, and negociations for an amicable 
 adjustment of their differences which proved unsuccessful]. 
 
 PRAYER. 
 
 The plaintiffs therefore pray as follows : 
 
 1. That an account may be taken of all the dealings and 
 transactions of the said partnership of John Orrell and 
 Company, and of the monies received and paid by the 
 plaintiffs and defendants in respect thereof. 
 
 2. That in taking such accounts, the said John Orrell 
 the elder and John Orrell the younger, may be re- 
 spectively charged with all monies improperly applied 
 by them or either of them for other purposes than 
 those of the said partnership, together with interest for 
 the same, and that the value of the property of the 
 said partnership may be ascertained, and all necessary 
 and proper directions given for winding 'up of the said 
 partnership. 
 
 3. That whatever may, upon taking the said accounts be 
 found due to the plaintiffs, may be paid to them, the 
 plaintiffs being ready and willing to pay whatever, if 
 anything, shall be found to be due from them re- 
 spectively to the defendants. 
 
 4. That the plaintiffs may have such further or other 
 relief as the nature of the case may require. 
 
 The defendants to this bill are, 
 
 John Orrell the elder, 
 John Orrell the younger, 
 John Shortridge. 
 
 (Name of Counsel). 
 
 Charles Hall. 
 
PLEADrNGS. 309 
 
 Bill for Account of Partnership Dealings, stating Notarial 
 Translation of Greek Articles of Partnership. 
 
 In Chancery. 
 
 Lord Chancellor. 
 Vice Chancellor Wood. 
 
 Paul Hamson - _ _ Plaintiff. 
 
 Marco Olivo - - - Defendant. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 liord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship Paul 
 Hamson, of Constantinople, in the empire of Turkey, 
 merchant, the above-named plaintiff, as follows, to wit : 
 
 1. In the month of July one thousand eight hundred 
 and fifty, the plaintiff and Marco Olivo, of the city of Man- 
 chester, merchant, the above-named defendant, entered into 
 copartnership, for the purpose of carrying on business as 
 merchants at Constantinople and Manchester aforesaid. 
 
 2. The articles of such copartnership were reduced to 
 writing in the Greek language, and were, according to a 
 notarial translation thereof, in the words or to the purport 
 and effect following (that is to say) : " Glory to God. 
 By the present Deed of Contract, valid as if done in a civil 
 chamber, are declared the following terms and covenants, 
 that is to say : 
 
310 PLEADINGS. 
 
 " Istly. The Messrs. Paul Hamson aud Marco Olivo 
 have constituted and do constitute a joint stock partnership, 
 established for three years from this day, to wit, at this 
 place under the firm P. Hamson, and at Manchester, in 
 England, under the firm M. Olivo. 
 
 " 2ndly. Mr, P. Hamson invests as capital 
 in this partnership ten thou- 
 sand nine hundred and fifty- 
 six pounds and eleven shillings 
 sterling '- - - - 10,956 11 
 Mr. M. Olivo, in like manner, 
 invests as capital in this part- 
 nership one thousand two 
 hundred and five pounds and 
 thirteen shillings - - 1,205 13 
 
 £12,162 4 
 
 "Srdly. The establishment at this place is and shall 
 be recognised as the chief, which shall be managed by 
 Mr. P. Hamson as director general, and that of Manchester 
 by Mr. M. Olivo, sutgect immediately to the directions of 
 Mr. P. Hamson as director general. 
 
 "4thly. The capital funds of this partnership shall be 
 by both establishments laid out in manufactures, in colonial 
 produce, and in such other goods as both parties shall concur 
 in judging expedient for the benefit of this partnership. 
 
 Sthly. Neither one of the partners is at liberty to under- 
 take any private adventure for his own account, but only for 
 account of this partnership. 
 
 6thly. The partnership is bound to pay to Mr. M.Olivo, 
 director at Manchester, fifty pounds per annum for his 
 personal expenses there, likewise whatever expenses may 
 be incurred, as well by the establishment there as also by 
 that of this place, shall be defrayed for account of this 
 partnership, but the sums withdrawn by each of the partners 
 shall be taken to be for their own account respectively. 
 Mr. P. Hamson receiving yearly fifty thousand piastres, and 
 Mr. M. Olivo twenty-five thousand piastres. 
 
 " 7thly. It is made binding on the establishment at 
 Manchester to keep and to close yearly, to wit, on the 31st 
 of December, its balance-sheet, and to send same to the 
 establishment here, in order that the latter may also close 
 the general balance-sheet and send it in return. 
 
PT.EADINGS. 
 
 311 
 
 "8thly. The partition of the profits which a bountiful 
 God may send shall be understood to bfe in this wise: 
 Mr. P. Hamson taking seventy-three per cent, (in figures 
 73 %), and Mr. M. Olivo twenty-seven per cent, (in 
 figures 27 »/o)j and the like to be understood as regards 
 losses if (which God forbid) any should, happen. 
 
 9thly. Mr. P. Hamson shall have the right to the 
 profits which may be made in the first year, the sums with- 
 drawn being therefi:om deducted, shall be at liberty to 
 receive the remainder, understanding this only oi the first 
 year. During the remaining two years he shall leave the 
 same to the partnership as for additions to his capital. But 
 those of Mr. M. Olivo shall remain to the partnership for 
 the whole term of three years in addition to his capital. 
 
 lOthly. Both parties bind themselves to maintain the 
 present contract for three entire years as aforesaid, and 
 after that they shall signify if they intend to maintain it for 
 a further period; if the contrary, then they shall first pay 
 the debts both at Manchester and this place, and afterwards 
 shall apply themselves for four months to the liquidation of 
 the accounts of this partnership, to which whatever goods 
 and outstanding assets are found pertaining they shall each 
 of them take according to the respective proportion of his 
 profitable interest; but if between themselves the}' agree to 
 take the one the goods and the other the outstanding assets, 
 then in this transaction shall be allowed a corresponding 
 and compensating discount, which they shall between them- 
 selves- de t§rm i n e . 
 
 "llthly and lastly. Both parties bind themselves to 
 maintain in full integrity all the foregoing covenants, and 
 to operate with all assiduity, zeal and sincerity for the 
 prosperity and profit of this partnership. Wherefore, in 
 confirmation and maintenance of the foregoing, two like 
 deeds of contract have been executed reciprocally imder- 
 signed, and each party has taken possession of one of the 
 same for his security. 
 
 "The 1st July 1850. Constantinople," 
 
 3. The foregoing articles of copartnership were signed in 
 duplicate by the plaintiff and defendant. 
 
 4. The plaintiff and defendant carried on business under 
 the said articles of copartnership until the month of April 
 one thousand eight hundred and fifty-one, from and since 
 which time, in consequence of the improper conduct of the 
 
312 - . PLEADINGS. 
 
 said defendanl in and about the affairs of the said copartner- 
 ship,-all transactions of business between the plaintiff and 
 defendant have wholly ceased, and the term of three years 
 by the. said articles limited for the duration of the said co- 
 partnership hath since expired. 
 
 5. [State subsequent applications for account, and charge 
 irregular keeping of books by defendant, accepting bills, 
 which were protested for non-payment and returned to 
 plaintiff at Constantinople, and .other acts of misconduct 
 during the continuance of the partnership.] 
 
 PRAYER. 
 
 The plaintiff prays as follows, to wit: 
 
 1. That an account may be taken, by and under the 
 direction and decree of this Honourable Court of all 
 the dealings and transactions 'of the said copartnership 
 at Constantinople and Manchester aforesaid and else- 
 where. 
 
 2. That the balahce due and owing to the plaintiff upon 
 the footing of the said accounts maybe ascertained and 
 declared, and that the defendant may be decreed to 
 pay the same to the plaintiff by a short day. 
 
 3. That the plaintiff may haye such further or other relief 
 as the nature of the case may require. 
 
 Name of defendant. 
 The defendant to this Bill of Complaint is, 
 
 Marco Olivo. 
 
 (Name of Counsel). 
 
 Harris Prendergast. 
 
 Claim for an Jccount of Partnership Dealings, and to have 
 the Partnership wound up and for Partition of real estates 
 ielonginff to the Partnership. 
 
 In Chancery. 
 
 Lord Chancellor. 
 Vice Chancellor Wood. 
 
 Joseph Twigg, John Twigg - - Plaintiffs- 
 
 Benjamin Twigg - - . Defendant. 
 
PLEADINGS. , 313 
 
 THE CLAIM 
 
 Of Joseph Twigg, of Newhill, in the par^h of Wath- 
 upon-Dearnej in the county of Yorlt, earthenware 
 manufacturer, and John Twigg, of Swinton, in the 
 same county, earthenware manufacturer, the above 
 named plaintiffs. 
 The said plaintiffs state as follows : (to wit) 
 
 1. That- in the month of February one thousand eight 
 hundred and twenty-two, the said plaintiffs and the said 
 defendant Benjamin Twig^of Kilnhurst in the said county 
 of York earthenware manufacturer, became co-partners 
 in the business of earthenware manufacturers, at Newhill 
 aforesaid. 
 
 2. The capital stock of the said co-partnership, comprised 
 divers lands, tenements, and hereditaments, purchased or 
 acquired by the said co-partners, with and out of the joint 
 mbnies, of the said co-partnership, or contracted so to be and 
 also divers lands, tenements, and hereditaments, belonging 
 to the said co-partners, as tenants in common, and used and 
 employed by them in and for the purposes of their said joint 
 trade. 
 
 3. That no articles of co-partnership were ever made or 
 executed by the said co-partners, with reference to their said 
 joint trade. 
 
 4. That on the eleventh day of February one thousand 
 eight hundred and fifty-three, the said co-partnership so 
 subsisting as aforesaid, between the said plaintiffs and the 
 said defendant Benjamin Twigg, was dissolved by notice in 
 writing to the said Benjamin Twigg, under the hands of the 
 said plaintiifs. 
 
 5. That the said plaintiffs are desirous of holding in seve- 
 ralty, their respective shares of and in the real estates of 
 the said co-partnership, remaining after taking the accounts 
 and winding up the business thereof. 
 
 CLAIM. 
 
 The said plaintiffs therefore claim an account of the 
 dealings and transactions of the said plaintiffs and the 
 defendant Benjamin Twigg, as such co-partners as 
 aforesaid, in the said joint trade, from the commence- 
 ment thereof, to the dissolution thereof, and to have the 
 
314 PLEABINGS. 
 
 affairs and business of the said co-partnership •wound 
 up and settled under the direction of this.Court, and to 
 have a partition of the real estates comprised .m the 
 clear residue of the capital stock .of the' ajiid .co-part- 
 nership, after providing for the satisfaction of the. debts, 
 liabilities, and engagements thereof.' And for ihe pur- 
 poses aforesaid, that all necessary and proper directions 
 may be given and accounts taken. 
 
 The defendant to this Claim is, 
 Benjamin Twigg. 
 
 Harris Prendi;egast. 
 
 Claim for the Specific Performance of an Agreement for 
 a Lease (a). 
 
 In Chancery. 
 
 Lord Chancellor. 
 
 Vice Chancellor Stuart. 
 
 Charles Ring ... Plaintiff. 
 
 David Handcock - - - DefendanJ;. 
 
 The claim of Charles Ring, of Upper Tooting, in the 
 county of Surrey, esquire, 
 
 1. The said Charles Ring states, that on the twenty- 
 second day of September one thousand efght hundred and 
 fifty-two, he was, and still is, seised in fee simple of and 
 absolutely entitled to certain freehold property called Coak- 
 ham Farm, in the parishes of Westerham and Edenbridge, 
 in the county of Kent, subject only to a lease for a term of 
 seven years therein, from the twenty-ninth day of Septem- 
 ber one thousand eight hundred and forty-five, created by 
 an indenture of lease, bearing date the seventh day of 
 -February one thousand eight hundred and forty-six, and 
 
 (a) N.B. This is a Special Claim, and requires the leave of the 
 Court before it is filed. See Scargill v. Hurrey, supra, p. 113, 
 
!?-■ 
 
 PLEADINGS. 
 
 •which -said term was at the time of the making the agree- 
 ment hereinafter mentioned, vested in one Richard 
 Williams. 
 
 2. By an agreement, dated the said twenty-second day 
 of September 'one thousand eight hundred and fifty-two, 
 and sigped by the' abovetnamed defendant, David Hand- 
 cdek, he, the defendant, -contracted to take of him, the 
 
 . |)laintij0F, a lease of the said Goakham Farm, for seven, 
 
 ' fourteen, or twenty-one years^ at mutual option, from 
 
 . Michaelmas then next, at the yearly rent of one hundred 
 
 and thirty-one pounds, the provisions of the lease to be 
 
 .,.. - similar to those in the said lease of the seventh day of 
 
 February one thousand eight hundred and forty-six, with 
 
 this exception, that twenty acres were to lie fallow instead 
 
 of fifteen, and the clause as to labour for carting mould 
 
 fi:om ditches was to be omitted ; and it was agreed that the 
 
 said lease to the defendant should be executed within a 
 
 fortnight firom the date of the said agreement, at No. 6, 
 
 Queen Street, Cheapside, and that the expense of the said 
 
 lease and counterpart, up to ten pounds, should be paid by 
 
 the defendant. 
 
 3. According to and by virtue of the terms of the said 
 indenture of lease of the seventh day of February one 
 thousand eight hundred and forty-six, the outgoing tenant 
 of the said farm was to be paid by his landlord or incoming 
 tenant the amount of the fair value (to be ascertained in 
 case of difference by valuation in the usual way) of certain 
 articles and things to be left and done by the outgoing 
 tenant for the use of his landlord or the incoming tenant, 
 and the defendant on the said twenty-second day of 
 September one thousand eight hundred and fifty-two, pro- 
 mised the plaintiff to pay for such articles and things in 
 the said indenture of lease of the seventh day of February 
 one thousand eight hundred -and forty-six mentioned, as 
 the said Richard Williams should leave and do, or should 
 have left and done, for the use of the incoming tenant, such 
 sum or sums of money as the same should be valued at, by 
 the person appointed to value the same on behalf of the 
 plaintifiv and the person appointed to value the same on 
 behalf of the said Richard Williams, or, in case of difference, 
 by their umpire, and the defendant also promised to pay 
 his share, as the purchaser, of the expense of such valuation. 
 
 4. Mr. Charlton, of Tunbridge, in the county of Kent, 
 was appointed by the plaintiff as his valuer for the purpose 
 
 315 
 
316 
 
 PLEADINGS. 
 
 aforesaid, and Mr. Holtnden, of Edenbridge aforesaid, 
 was appointed by the said Richard Williams as his valuer, 
 for the purpose aforesaid, and they the said Mr. Charl- 
 ton and Mr. Holmden appointed Mr. Cronk of Seven 
 Oaks in the said county of Kent, to be their umpire in the 
 said valuation. 
 
 5. The articles and things actually done and left by the 
 said Richard Williams, and for which he was entitled to 
 payment under or by virtue of the said lease of the seventh 
 day of February one thousand eight hundred and forty-six, 
 were valued by the said Mr. Cronk (in conjunction with 
 the said Mr. Charlton and Mr. Holmden who had disagreed 
 in their valuation) at the sum of two hundred and thirty- 
 eight pounds and elevenpence (which sum the defendant 
 afterwards, and before the payment thereof by the plaintiff 
 as hereinafter mentioned, admitted to be the fair value of 
 the said articles and things) and the plaintiff on the 
 second day of November one thousand eight hundred and 
 fifty-two, paid to the said Richard Williams, the said sum of 
 two hundred and thirty-eight pounds and elevenpence, 
 together with the sum of eleven shillings and fourpence, 
 being one moiety of the valuation stamp. 
 
 6. Prior to the said second day of November one thousand 
 eight hundred and fifty-two, the defendant took possession, 
 and from that time hitherto hath been and now is in 
 possession, of the said farm, and of the articles and things 
 left by the said Richard Williams, and the defendant has 
 applied to his own use all the articles and things so left by 
 the said Richard Williams, and has in fact consumed and 
 disposed of many of such articles and things, and in par- 
 ticular a quantity of hay and clover-hay, which was left by 
 the said Richard Williams on the said farm. 
 
 7. On or about the twenty-ninth day of September one 
 thousand eight hundred and fifty-two a draft lease was 
 prepared, in pursuance of and according to the said agree- 
 ment, and the provisions of the said lease were similar 
 to those in the said indenture of the seventh day of Feb- 
 ruary one thousand eight hundred and forty-six (with such 
 exceptions as are in the said agreement of the twenty-second ■ 
 day of September one thousand eight hundred and fifty- 
 two mentioned, and with the exception also of some few 
 other alterations, which it had been subsequently agreed 
 between the plaintiff and the defendant should be made 
 therein), and the said draft lease was, on or soon after 
 
PLEADINGS. S 1 7 
 
 the said twenty-ninth day of September one thousand eight 
 hundred and fifty-two, submitted to the defendant for his 
 approval, but the defendant made objections thereto, and 
 some delay was occasioned thereby. 
 
 8. The objections made by the defendant to the said 
 draft lease were confined to the covenants inserted therein 
 on the part of the defendant, as lessee, whereby he was 
 made to repair and insure the buildings on the said farm, 
 although the said lease of the seventh day of February one 
 thousand eight hundred and forty-six Contained (as the 
 defendant well knew when he signed the said agreement of 
 the twenty-second day of* September one thousand eight 
 hundred and fifty-two), covenants on the part of the lessee 
 to repair and insure the said buildings. 
 
 9. Afterwards, namely, on the second day of November 
 one thousand eight hundred and fifty-two, a lease of the 
 said farm, with such provisions and exceptions as aforesaid, 
 was executed by the plaintiff, in the presence of the 
 defendant, and a counterpart thereof was then tendered to 
 the defendant, who read over and examined the same in the 
 presence of the plaintifii and who was then requested by 
 the plaintiff to execute the same, but which the defendant 
 refused to do. 
 
 10. The plaintifi' has caused an application to be made to 
 the said David Handcock, specifically to perform the said 
 agreement of the twenty-second day of September one 
 thousand eight hundred and fifty-two, but he has not 
 done so. 
 
 The said Charles Ring, therefore, claims to be entitled 
 to a specific performance of the said agreement, and to 
 have a counterpart of the lease so prepared and ten- 
 dered as aforesaid, executed by the defendant, and to 
 have the sum of ten pounds, part of the expenses of 
 preparing the said lease and counterpart, paid by the 
 defendant, and to have the said sums of two hundred 
 and thirty-eight pounds and elevenpence and eleven 
 shillings and fourpence, so paid by the plaintiff to the 
 said Richard Williams as aforesaid, together with 
 interest thereon, from the said second day of Novem- 
 ber one thousand eight hundred and fifty-two, after 
 the rate of four pounds per centum per annum, paid by 
 the defendant, together with the defendant's share, as 
 purchaser, of the costs of the said valuation, and also 
 to have the costs of this suit, and for these purposes to 
 
318 
 
 PLEADINGS. 
 
 have all proper directions given. And the plaintiff 
 hereby offers specifically to perform the said agree- 
 ment on his part. 
 
 C. J. Selwyn. 
 
 Bill for the specific performance of an agreement for 
 the working of a Colliery, and for an Injunction to re- 
 strain sale of Coals contrary to terms of agreement, (a) 
 
 In Chancery. 
 
 Lord Chancellor. 
 Vice Chancellor Wood. 
 
 James Harvey Insole, - - Plaintiff. 
 
 Christopher James - - Defendant. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Nor- 
 folk, Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship James 
 Harvey Insole, of Cardiff, in the county of Glamorgan, 
 coal merchant, the above-named plaintiff, as follows: — 
 
 1. Previously to and at the time of the making of the 
 agreement hereinafter mentioned, the defendant was and 
 he still is seised or possessed of or otherwise entitled to 
 work a certain coal mine, situate in the county of Gla- 
 morgan, and called or known and hereinafter referred to, 
 as the Llwyncelyn Colliery, and at the same time the 
 plaintiff was and still is a coal merchant, carrying on 
 business under the name or style of George Insole and 
 Son. 
 
 2. On the fifth day of April one thousand eight hundred 
 and fifty-two, an agreement was made and entered into 
 between and by the plaintiff and the defendant, and a 
 
 (a) N.B. An interlocutory injunction cannot be obtained upon a 
 Claim. It requires a Bill. See Holden v. Chdcraft, supra, p. 115. 
 
PLEADINGS. 319 
 
 memorandum of such agreement was on the same day re- 
 duced into writing, and bore date the same fifth day of 
 April one thousand eight hundred and fifty-two, and was 
 duly signed on that day by the defendant and by the 
 plaintiff, and such memorandum of agreement was in the 
 words and figures or to the effect following, that is to say : 
 " 1852 April 5, Memorandum of an agreement made this 
 day between Christopher Jamesv of Swansea esquire and 
 James Harvey Insole of Cardiff coal merchant on behalf of 
 George Insole and Son. Whereas an agreement dated and 
 made the 22 Aug. 1851 between the aforesaid parties and 
 witnessed by William Doife Bushell of Cardiff is now in 
 force, it is this day agreed that such agreement shall cease 
 and determine on the 1st day of December 1852 now next 
 ensuing, and it is also further agreed that Messrs. Insole and 
 Son shall on and from the 1st day of December 1852 now 
 next ensuing, for the period of five years, say on and up to 
 the 1st day of December 1857, take from Llwyncelyn 
 Colliery, which the said Christopher James hereby under- 
 takes to work, a quantity of at least 150 tons of coal per 
 . day on the average, on the following terms, say at 4s. per 
 ton of 2240 lbs. delivered into the railway waggons, when- 
 ever and so long as the general accredited selling price of 
 coal at Cardiff shall be 7s. per ton, and at 4s. 3d. per ton, 
 whenever such selling price shall be 7*. 6d. per ton, and at 
 4s. 6d. per ton whenever such selling price shall be 8s. per 
 ton and upwards. It is understood that Christopher James 
 shall work the quantity named, if able, but if unable, Chris- 
 topher James is not bound to supply it; Christopher James 
 not being at liberty to sell any coal to any other party. 
 Messieurs Insole and Son to take all the small coal pro- 
 duced at 2s. 6d. per ton delivered into the railway waggons. 
 From the net weight as charged by the Railway Com- 
 pany, Mr. James shall deduct two per centum as an allow- 
 ance payment, to be made say 2s. per ton on every fortnight, 
 and the remaining 2s. per ton (or 2s. 3d. or 2s. 6d. as the 
 case may be) for the quantity worked in the quarter, on the 
 14th December, 14th March, 14th June, and 14th Septem- 
 ber in each year. The screen over which the coal shall 
 pass shall be the same in every respect as the one now in 
 use at Cymmer. It is agreed that the price of coal shall be 
 calculated upon an average of three months, and that the 
 fixing of such price between the aforesaid parties named, 
 shall be determined by Wm. Done Bushell of Cardiff as 
 
320 PLEADINGS. 
 
 well as all or any other matter of difference or dispute be- 
 tween the aforesaid parties, Christopher James, J. H. 
 Insole for George Insole and Son, Witness Wm. Done 
 Bashell, as by the said memorandum of agreement when 
 produced will appear. 
 
 3. [Set forth supplementary agreement, commencement 
 of workings of, the coal by defendant, subsequent rise in 
 the price of coal, and defendant's pretences to evade com- 
 pliance with terras of contract.] 
 
 PKAYER. 
 
 The plaintiffs pray as follows : 
 
 1. That the defendant may be decreed specifically to 
 perform the said agreement of the fifth day of April one 
 thousand eight hundred and fifty-two, and to supply 
 the plaintiff upon the terms therein mentioned, with 
 coal from the said colliery to the amount of one hun- 
 dred and fifty tons per day on the average, during the 
 continuance of the said agreement, so often as the 
 defendant is able to work that quantity, the plaintiff 
 being ready and willing, and hereby offering speci- 
 fically, to perform the said agreement upon his part. 
 
 2. That an account may be taken by arid under the 
 decree and direction of this Honourable Court, of all 
 the coal worked or obtained or taken by the defendant 
 since .the first day of December one thousand eight 
 hundred and fifty-two, from the said Llwyncelyn 
 Colliery, and sold or disposed of by the defendant or 
 his agents, or by his order or for his use, to any person 
 or persons other than the plaintiff, and of all the gains 
 and profits which have been made by such sale or dis-, 
 position, and that the defendant may be ordered to 
 pay to the plaintiff, what shall be found to be due 
 from the defendant upon taking such account. 
 
 3. That the defendant, his servants, agents and workmen 
 may be restrained by the order and injunction of this 
 Honourable Court, during the continuance of the said 
 agreement of the fifth day of April one thousand 
 eight hundred and fifty-two, from selling or dispositig 
 of any coal worked or obtained, or taken from the said 
 Llwyncelyn Colliery, to any person or persons, other 
 
PLEADINGS?. 
 
 than the plaintifFi or otherwise than in aecordance with 
 the terms of the said agreement. 
 4. That the plaintiff may have such further or other 
 relief as the nature of the case may require. 
 
 Name of the defendant. 
 The defendant to this Bill of Complaint is, 
 
 Christopher James. 
 
 C. J. Sblwyn. 
 
 Bill by Official Manager of a Joint-slock Banking Company 
 against Absconding Executrix and Devisee of a Contri-' 
 
 S21 
 
 In Chancery. 
 
 Lord Chancellor. 
 Vice Chancellor Wood. 
 
 John Henderson, John HewsoUj and 
 James Ross, the official managers of 
 the North of England Joint Stock 
 Banking Company, for and on be- 
 half of the said Company, and on 
 behalf of themselves and all other 
 the creditors of John Ness, de- 
 ceased, who shall come in and con- 
 tribute to the expenses of this suit - Plaintiffs. 
 
 Mary Ann Thomas - - Defendant. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Mousey, Baron Cran- 
 worth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship John 
 Henderson, of the city of I^urham, manufacturer, Johrj 
 Hewson, of the city of Carlisle, manufacturer, and James 
 
 Y 
 
322 PI.EADING8. 
 
 Ross, of Stanwix, in the county of Carlisle, {jent!eman,the 
 oflBcial managers of the North of England Joint Stock 
 Banking Company, for and on behalf of the said company, 
 as follows : — 
 
 1. John Ness, late of Bishopswearmouth, in thecounty 
 of Durham, deceased, was, previously to and upon the 
 twenty-sixth day of August one thousand eight hundred 
 and forty-six, and thenceforth up to the time of his death, 
 a partner and shareholder in the above-mentiond North of 
 England Joint Stock Banking Compairiyi which carried on 
 business in the borough and county of Newcastle-upon- 
 Tyne, according to the provisions of the act of Parliament, ■ 
 7 Geo. IV. c. 46, and of a certain deed of settlement dated 
 the fourteenth day of November one thousand eight hun- 
 dred and thirty-two, which provided, inter alia, that the 
 shareholders of the company should contribute to its losses 
 in proportion to their respective shares therein. 
 
 2. The said banking company ceased to carry on busi- 
 ness on the sixth day of March one thousand eight hundred 
 and forty-seven, and was at that time indebted to a large 
 number of persons to an amount very considerably exceed- 
 ing the amount and value of the assets of the said company, 
 and the said John Ness, as one of the partners and share- 
 holders in such company, was liable to the creditors thereof 
 for the whole amount of such debts, and the sum which the 
 said John Ness was, as between himself and his copartners, 
 liable to contribute to make up the deficiency of the assets 
 of the company to meet its debts was, as appears by the 
 calls already made by the Masjer, as hereinafter mentioned, 
 two thousand five hundred and seventy pounds sixteen 
 shillings and twopence, besides the amount of future calls 
 to be made by the Master as hereinafter mentioned. 
 
 3. No material change had taken place in the afiairs of 
 the said company between the twenty-sixth day of Atigust 
 one thousand eight hutidred and forty-six, and the time 
 when the same ceased to carry on business as aforesaid, and 
 the loss arising on the new transaction of the company not 
 being renewals of former liabilities after the twenty-sixth day 
 of August one thousand eight hundred and forty-six, was 
 of comparatively small amount, and the excess of its liabili- 
 ties above its assets on the twenty-sixth day of August one 
 thousand eight hundred and fofty-six, was nearly the same 
 as when it stopped payment. 
 
 4. On the twenty-sixth day of August one thousand 
 
PLEADINGS. 323 
 
 eight hundred and forty-six, the said John Ness was seised 
 of or entitled to copyhold and freehold property of the 
 value of one thousand five hundred pounds, or thereabouts, 
 of the personal property comprised in the indenture of the 
 twenty-sixth day of August one thousand eight hundred 
 and forty-six, hereinafter stated of the value of one thou- 
 sand seven hundred pounds, or thereabouts, and of certain 
 other stock in the funds of the value of between six hun- 
 dred pounds and eight hundred pounds, and he was not 
 seised or possessed or entitled to any other real or personal 
 estate except his wearing apparel and some particulars of 
 insignificant value. * 
 
 5. An indenture, dated the twenty-six day of August 
 one thousand eight hundred and forty-six, was made and 
 executed between and by the said John Ness of the one 
 part, and the said defendant Mary Ann Thomas of the 
 other part, and thereby in consideration of the love and 
 affection which the said John Ness had and bore for the 
 said Mary Ann Thomas, the said John Ness did covenant 
 to transfer to the said Mary Ann Thomas for her own use 
 and benefit the sum of one thousand four hundred and 
 ninety-four pounds three pounds per centum consolidated 
 Bank annuities, and did assign to her his household goods 
 and furniture, plate, linen and china, books, and other arti- 
 cles comprised in the schedule thereunder written, to hold 
 the same unto the said Mary Ann Thomas, her executors, 
 administrators and assigns, upon trust to permit the ..said 
 John Ness to use and occupy the same during his life, and 
 after his death for the absolute use and benefit of the said 
 Mary Ann Thomas, her executors, administrators and 
 
 6. The said sum of one thousand four hundred and ninety- 
 four pounds three pounds per centum consolidated Bank 
 annuities, was shortly afterwards transferred by the said 
 John Ness into the name of the said Mary Ann Thomas, 
 and the said other sum of stock was also transferred by him 
 to her in or about the month of December one thousand 
 eight hundred and forty-six. 
 
 7. No consideration was paid or given to the said John 
 Ness by the said Mary Ann Thomas for the execution of 
 the said deed, or for the said transfers, or either of them ; 
 and the said deed was executed, and the said transfers were 
 made with intent to defeat the lawful actions, suits, and 
 demands of the creditors 6f the said John Ness, and to with- 
 
 y2 
 
324 PLEADINGS. 
 
 draw the property therein comprised from the reach of his 
 creditors, and in particular to prevent the same from being 
 made available towards the Hability of the said John Ness 
 as one of the shareholders in the said company, and the said 
 deeds and transfers were and are void against the other 
 shareholders in the said company, and the other creditors of 
 the Said John Ness. 
 
 8. The said John Ness duly made and executed his last 
 will and testament, dated the second day of January one 
 thousand eight hundred and forty-seven, and thereby devised 
 and bequeathed all his real and personal estate and effects 
 unto the said defendant Mary Ann Thomas, and appointed 
 her the sole executrix of his said will, and the said John Ness 
 died on or about the sixteenth day of March one thousand 
 eight hundred and forty-seven, without having revoked or 
 altered his said will, and the same was proved by the said 
 Mary Ann Thomas in the proper Ecclesiastical Court. 
 
 9. On the seventeenth day of November one thousand 
 eight hundred and forty-eight, an order of the High Court 
 of Chancery was made by his Honor the Vice Chancellor 
 Bruce, in the matter of the " Joint Stock Companies Wind- 
 ing-up Act, 1848," and of the said " North of England 
 Joint Stock Banking Company," and thereby it was ordered 
 that the said company should be absolutely dissolved as 
 from that day, and should be wound up under the pro- 
 visions of the said act, and it was ordered that it should 
 be referred to James William Farrer, esquire, one of the 
 Masters of the High Court of Chancery, to wind up the 
 affairs of the said cpmpany under the provisions of the said 
 act; and the said plaintiffs, John Henderson, John Hew- 
 son, and James Ross, were on "the twenty-second day of 
 November one thousand eight hundred and forty-eight, 
 duly appointed by the said Master, and now are the official 
 managers of the said company, and the Master has settled 
 the list of contributories of the said company, and the said 
 Mary Ann Thomas has been included therein as executrix 
 and devisee of the said John Ness, and calls have been 
 made on the contributories of the said company by the said 
 Master, in pursuance of the said act, and by an order of 
 the Master acting in the said matter, made on the four- 
 teenth day of December one thousand eight hundred and 
 fifty, the said Mary Ann Thomas has been ordered to pay 
 to the official managers of the said company, on a day now 
 past, the sum of two thousand five hundred and seventy 
 
PLEADINGS. 
 
 pounds sixteen shillings and twopence, being the balance 
 of her account as a contributory of the company, out of the 
 personal and real assets of the said testator in a due course 
 of administration. 
 
 10. The said sum hath not, nor hath any part thereof 
 been paid, and it will be necessary that the said Master 
 shall make further calls on the contributories of the said 
 company to pay the debts and liabilities thereof. 
 
 1 1. The said defendant, Mary Ann Thomas, hath left the 
 kingdom and absconded, in order to avoid the payment of 
 the sum in which the estate of the said John Ness is liable " 
 under the said winding-up rfjrder, and to avoid service of 
 process in any proceedings to enforce such liability, but 
 nevertheless she continues in possession of the rents and 
 profits of the said testator's real estates, and receives the ■ 
 same by Messrs. Wright, of Sunderland, her solicitors. 
 
 PRAYER. 
 
 The plaintiffs pray as follows : 
 
 1. That an account may be taken of what is due to the 
 plainti£^ and all other the creditors of the said John 
 Ness, and that the amount so due may be paid out of 
 the real and personal estate of the said John Ness in a 
 due course of administration, by and under the direc- 
 tion of this Honourable Court, and that for that pur- 
 pose all necessary directions may be given and accounts 
 taken. 
 
 2. That the property coipprised in the said indenture of 
 the twenty-sixth day of August one thousand eight 
 hundred and forty-six, and the said other sum of stock 
 so transferred by the said John Ness to the said 
 defendant as aforesaid, or the proceeds thereof, if the 
 same have been sold by the said Mary Ann Thomas, 
 may be administered as part of the personal assets of 
 the said John Ness, in payment of his debts as afore- 
 said, and if necessary for that purpose, that the said 
 deed of the twenty-sixth day of August one thousand 
 eight hundred and forty-six, and the said several trans- 
 fers of the said stock, may be declared void as against 
 the plaintiff and the other creditors of the said John 
 Ness. 
 
326 
 
 FIiGADINQS. 
 
 3, That some proper person may be appointed by and 
 under the order and direction of this Honourable 
 Court to receive, collect, and get in the outstanding 
 personal estate of the said John Ness, and the rents and 
 profits of his real estate. 
 
 4. 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 is, 
 Mary Ann Thomas.- 
 
 - (Name of Counsel). 
 
 J. V. Phior. 
 
 Bill by adjoining Occufier to restrain the Members of a 
 Club from raising their Club House beyond a certain 
 Elevation, 
 
 In Chancery. 
 
 Lord Chancellor. , 
 
 Vice Chancellor Kindersley. 
 
 CoUingwood Forster Jackson - Plaintiff. 
 
 George John Fenwick, Henry William 
 Fenwick, Charles Atticus Monk, and 
 the Mayor, Aldermen, and Burgesses 
 of the Town and County of the Town 
 of Newcastle-upon-Tyne - Defendants. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaming, showeth unto his Lordship Colling- 
 
PLEADINQS. 327 
 
 wood Forster Jackson, of Number 12, Eldon Square, in the 
 town of Newcastle-upon-Tyne, esquire, the above-named 
 plaintiff, as follows : -^ 
 
 1. That under or by virtue of an Act of Parliament made 
 and passed in the twenty-sixth year of the reign of His late 
 Majesty King George the Third, intituled " An Act for 
 widening, enlarging, and cleansing the Streets, Lanes, and 
 other Public Places, and for opening new Streets, Markets, 
 and Passages within the Town of Newcastle and the 
 Liberties thereof, and for removing and preventing Annoy- 
 ances therein, and for regulating the Public Markets, and 
 Common Stage Waggons, Drays, and Carts carrying Goods 
 for hire," the mayor, aldermen, and common council for 
 the time being of the said town of Newcastle-upon-Tyne 
 were empowered to enlarge and make more commodious 
 the streets and public ways, and to make new streets, ways, 
 and passages in the said town of Newcastle-upon-Tyne, 
 and to let, sell, or dispose of the land or ground comprised 
 in and assured, or intended to be assured, by the indenture 
 hereinafter set forth to any person or persons willing to take 
 or purchase the same, and to design and direct in what 
 manner any new bouses or buildings to be built thereon 
 should be erected. 
 
 2. By an indenture of feoffment, bearing date the twenty- 
 sixth of September one thousand eight hundred and twenty- 
 six, and made between the mayor and burgesses of the town 
 of Newcastle-upon-Tyne of the first part, thfe mayor, alder- 
 men, and common council of the said town of Newcastle- 
 upon-Tyne of the second part, Richard Grainger of the 
 third part, Thomas Brunting of the fourth part, and John 
 Clayton of the fifth part, and duly executed by the said 
 parties thereto, or by such of them as were necessary to give 
 effect to the same; it was witnessed that in pursuance of 
 the agreement therein mentioned, and for the considerations 
 therein stated, they the said mayor and burgesses, at the 
 request and by the direction of the said mayor, aldermen 
 and common council, granted, bargained, sold, aliened, 
 enfeoffed and confirmed unto the said Richard Grainger 
 and his heirs, all that piece or parcel of ground, part and 
 parcel of the close, piece or parcel of ground called Sidegate 
 South Close, and other hereditaments comprised in and 
 conveyed by the therein in part recited indentures of lease 
 and release of the sixth and seventh days of December one 
 thousand eight hundred and twenty-four respectively, being 
 
328 PLEADINGS. 
 
 in the town of Newcastle-upon-Tyne, and being the site of 
 the principal front or north side of an intended new square, 
 called Eldon Square, and therein more particularly de- 
 scribed, and which had been laid out pursuant to the powers 
 and provisions of the aforesaid act of Parliament, and 
 also all that piece or parcel of ground lying behind the 
 first-mentioned piece or parcel of ground near to the nortli- 
 east corner thereof, and therein also more particularly 
 described, and which said pieces or parcels of ground 
 thereby or intended to be thereby granted and enfeoffed^ 
 were respectively more particularly delineated and described 
 in the plan laid down in the margin of the first skin of the 
 now stating indenture, and coloured round with pink, with 
 the appurtenances, to hold the same with the appur- 
 tenances to the said Richard Grainger and his heirs, to the 
 use of such person or persons upon such trusts and for 
 such estates and interests, intents and purposes, and subject 
 to such powers, provisoes, declarations and agreements 
 as the said Richard Grainger by any deed or deeds, 
 instrument or instruments in writing, sealed and executed 
 by him in the presence of and attested by two or more 
 credible witnesses, or by his last- will and testament in 
 writing, or any codicil or codicils thereto, signed, published 
 and attested as therein mentioned, should from time to time 
 direct, limit or appoint, and in default or failure of any 
 direction, limitation or appointment as to the whole or any 
 part of the said premises, or any estate or interest therein,- 
 then as to the whole or such part thereof of which none 
 should be made or take efiect, to the use of the said 
 Richard Grainger and his assigns during the term of his 
 natural life, witihout impeachment of waste, and upon the 
 determination of that estate by forfeiture or otherwise in 
 his lifetime to the use of the said Thomas Brunting, his 
 executors and administrators during the life of the said 
 Richard Grainger, but in trust for the said Richard 
 Grainger and his assigns during his natural life, to prevent 
 the present and every future wife of the said Richard 
 Grainger from being dowable out of the same premises or 
 any part thereof^ and upon the determination of that estate 
 so limited .to the said Thomas Brunting, his executors and 
 administrators as aforesaid, and in the meantime subject 
 thereto to the use of the said Richard Grainger, his heirs 
 and assigns for ever, subject nevertheless to the covenants 
 and agreements thereinafter contained on the part of the 
 
PLEADINGS. 
 
 said Richard Grainger, his heirs, executors, administrators, 
 appointees and assigns, to be kept and performed, and the 
 said Richard Grainger did thereby for himself, his heirs, 
 executors, administrators, appointees and assigns, covenant, 
 promise, and agree to and with the said mayor and bur- 
 gesses and their successors, amongst other things, that he 
 the said Richard Grainger should and would build and for 
 ever thereafter maintain upon the said site, piece or parcel 
 of ground firstly thereinbefore mentioned, and described, 
 and granted, and enfeoffed, or intended so to be, in the line 
 delineated on the plan thereinbefore referred to and laid 
 down in the margin of tjhe first skin of the now stating 
 indenture, nine good and substantial messuages, tenements 
 or dwelling-houses, three stories high, according to the detail 
 and specification thereinafter mentioned and contained (that 
 is to say) the elevation fronting the square to be of polished 
 Ashlar stone, to have columns, pilasters, entablatures and 
 other mouldings, to be approved by the said mayor, alder- 
 men and common council; the chimney-tops to be also of 
 polished stone, and to have cornices and bases of the same 
 description, the roofs to be covered with blue slates, the 
 houses to have projecting iron galleries in front, to be sup- 
 ported on iron cantilevers, the front steps and flagging to 
 be of polished stone, the whole of the water from the roofs 
 to be conveyed to the back part of the buildings by means 
 of pipes, so as to avoid the necessity of having wall-pipes in 
 front. 
 
 3. Seisin was duly delivered of the pieces or parcels of 
 land comprised in the said indenture of the twenty-sixth of 
 September one thousand eight hundred and twenty-six, in 
 accordance therewith, and a memorandum of the said livery 
 of seisin was indorsed on the said indenture. 
 
 4. CoUingwood Forster Jackson, the late father of the 
 plaintiff, by an agreement in writing, bearing date the 
 thirteenth of October one thousand eight hundred and 
 twenty-seven, contracted and agreed with the said Richard 
 Grainger for the absolute purchase by him, the said 
 CoUingwood Forster Jackson, from the said Richard 
 Grainger, at or for the price or sum of one hundred pounds 
 of the piece or parcel of ground mentioned and described in 
 the indenture of the third of May one thousand eight hun- 
 dred and twenty-eight, hereinafter stated, being parts of 
 the said pieces or parcels of land comprised in the said 
 indenture of the twenty-sixth of September one thousand 
 
330 PLEADINGS. 
 
 eight hundred and twenty-six, and the said (>ollingwood 
 Forster Jackson thereupon, or shortly after, erected and built 
 on the said pieces or parcels of ground a messuage or dwtell- 
 ing-house, stable, coach-house, and buildings, and the said 
 messuage or dwelling-house is three stories high, and was 
 built on the plan and according to the detail and specifi- 
 cation mentioned and contained in the said indenture of 
 the twenty-sixth of September one thousand eight hundred 
 and twenty-six. 
 
 6. By aji indenture dated the third of May one thousand 
 eight hundred and twenty-eight, and -made between the 
 said Richard Grainger, of the first part, the said Colling- 
 wood Forster Jackson, of the second part, and the said 
 Thomas Brunting, of the third part, and John Mather and 
 Thomas Mather, of the fourth part, and duly executed by 
 the said parlies thereto, or by such of them as was necessary 
 to give eflFect to the- same, it was witnessed that in pur- 
 suance and performance of the said agreement of the thir- 
 teenth of October one thousand eight hundred and twenty- 
 seven, and in consideration of the said sum of one hundred 
 pounds, and for the nominal considerations therein men- 
 tioned, and in which indenture the said indenture of 
 feoffbfient is recited and covenanted to be produced, the 
 said Richard Grainger, by virtue and in exercise of the 
 power and authority given and reserved to him, in and by 
 the said indenture of the twenty-sixth day of September 
 one thousand eight hundred and twenty-six, as hereinbefore 
 stated, directed, limited, and appointed all that site, piece 
 or paFcel of ground, situate, lying, and being on the north 
 side of Eldon Square, in the said town and county of New- 
 castle-upon-Tyne, and on the east side of the centre house 
 therein particularly described, and also all that messuage or 
 dwelling-house, erections, and buildings thereon erected and 
 built, therein particularly described, and also all that' plot, 
 piece or parcel of ground lying at a short distance eastward 
 from the said piece of ground and messuage, therein parti- 
 cularly described, with the stable and coach-house thereon 
 erected and built, and which said two pieces of ground are 
 more particularly delineated and described on the plan 
 endorsed on the second skin of the now reciting indenture, 
 and coloured round with red, with their appurtenances, and 
 were parts of the said pieces or parcels of land comprised 
 in the said indenture of the twenty-sixth of September one 
 thousand eight hundred and twenty-six, unto and to the use 
 
FLEADINQS. 331 
 
 of the said Collingwood Forster J-ackson, John Mather and 
 Thomas Mather, their heirs and assigns for ever, in trust 
 as to the estate and interest of the said John Mather and 
 Thomas Mather and their heirs therein, for the said Col- 
 lingwood Forster Jackson his heirs and assigns for ever, 
 and by the said now stating indenture, it was further wit- 
 nessed that for the considerations aforesaid, the said Thomas 
 Brunting, at the request of the said Richard Grainger, and 
 by the direction and appointment of the said Collingwood 
 Forster Jackson enfeofifed and the said Richard Grainger 
 granted, enfeoffed, and confirmed to the said Collingwood 
 Forster Jackson, John Mather and Thomas Mather, their 
 heirs and assigns, all the said pieces of ground, messuage, 
 or dwelling-house, stable and coach-house, and all and 
 singular other the hereditaments and premises, with their 
 appurtenances thereinbefore appointed and enfeoffed unto 
 and to the use of the said Collingwood Forster Jackson, 
 John Mather and Thomas Mather, their heirs and 
 assigns for ever, in trust as to the estate and interest of the 
 said John Mather and Thomas Mather and their heirs 
 therein, for the said Collingwood Forster Jackson his heirs 
 and assigns for ever. * 
 
 6. The said indenture of the third of May one thousand 
 eight hundred and twenty-eight, was duly executed and 
 attested pursuant to the power in that behalf contained in 
 %he said indenture of the twenty-sixth of September one 
 ^ousand eight hutadred and twenty.-six, and hereinbefore 
 mentioned, and seisin was duly delivered of the said pieces 
 or parcels of ground comprised in the said indenture of the 
 third of May one thousand eight hundred and twenty-eight, 
 in accordance therewith, and a memorandum of the said 
 livery of seisin was endorsed on the said indenture. 
 . 7. The said Richard Grainger, or parties who were pur- 
 chasers, or derived title from him, erected and built upon 
 the parts of the said niece or parcel of land, comprised in 
 the said indenture ofthe. twenty-sixth of September one 
 thousand eight hundred and twenty-six, and not conveyed 
 and assured to the said Collingwood Forster Jackson, by the 
 said indenture ofthe third of May one thousand eight hira- 
 dred and twenty-eight, eight messuages or dwelling-houses 
 and other buildings, and such messuages or dwelling-houses 
 are all three stories high, and were built on the plan and 
 according to the detail and specification laid down and 
 mentioned and contained in the said indenture of the 
 twenty-sixth day of September one thousand eight hundred 
 
332 PLEADINGS. 
 
 and twenty-six, and the said eight messuages or dwelling- 
 houses, and the said messuage or dwelling-house erected and 
 built by the said Collingwood Forster Jackson, form the 
 nine messuages or dwelling-houses which the said Richard 
 Grainger, by the said indenture of the twenty-sixth of Sep- 
 tember one thousand ^ight hundred and twenty-six, cove- 
 nanted as aforesaid, to build and maintain, and are all on a 
 line contiguous to, and adjoining each other, and with two 
 other houses, form the north side of Eldon Square, afore- 
 said, and are of an uniform elevation and appearance; 
 and the other sides of the said square have been laid out, 
 and houses thereon erected of the like elevation of" style and 
 appearance as the messuages on the said north side. 
 
 8. The said Collingwood Forster Jackson departed this 
 life on the twenty-sixthof June one thousand eight hundred 
 and thirty, and Under and by virtue of his last will and 
 testament in writing, bearing date the twenty-second of 
 February one thousand eight hundred and thirty, and 
 executed and attested as by law then required to pass real 
 estates, and of divers conveyances and assurances, and 
 ultimately by an indenture bearing date the sixth day of 
 August one thousand eight hundred and fifty-one, and made 
 between Edward John Jackson of the first part, the plaintiff 
 of the second part, Elizabeth Jackson of the third part, 
 John Mather of the fourth part, and John George Brown of 
 the fifth part, the said pieces or parcels of ground, messuage, 
 or dwelling-house and stable and coach-house, with their 
 appurtenances mentioned and described in the said inden- 
 ture of the third of May one thousand eight hundred and 
 twferity-eight, became and is now vested in the said John 
 George Brown and his heirs, to such uses and upon such 
 trusts as the plaintiff should in manner therein mentioned 
 appoint, and in default of such appointment, and so' far as 
 the same should be incomplete and not extend, to the use 
 of the plaintiff and his assigns for life, and from and after 
 the determination of that estate in his lifetime, to the use of 
 the said John George Brown, his executors and adminis- 
 trators, during the life of the plaintiff in trust for the plain- 
 tiff and his assigns, and from and after the decease of the 
 plaintiff to the use of the plaintiff his heirs and assigns for 
 ever, and the plaintiff now lives in and uses and occupies, 
 and has for some time past lived in and used and occupied 
 the said . messuage or dwelling-house with its appurte- 
 nances mentioned and conveyed and assured as aforef- 
 said by the said indenture of the third day May 
 
PI.EADINGS. 333 
 
 one thousand eight hundred and twenty-eight, as his family 
 residence, and such messuage or dwelling-house is num- 
 bered 12 on the north side of Eldon Square aforesaid. 
 
 9. The centre messuage or dwelling-house on the north 
 side of Eldon Square aforesaid, and numbered 13, adjoins 
 the west side of the said messuage or dwelling-house of the 
 plaintiff, and the same is in the use and occupation of a 
 certain voluntary and unincorporated society or association, 
 called or known as the Northern Counties Club. 
 
 10. The said Northern Counties Club, and the affairs 
 thereof, is managed and conducted by a committee, con- 
 sisting of very many persons, and the defendants, George 
 John Fenwick, Henry William Fenwick, and Charles Atti^ 
 cus Monk, are members of the said committee, and the fee 
 simple and inheritance of the said club-house, No. 13, 
 Eldon Square aforesaid, is now vested in the said defendants, 
 or in one of them, or in some other persons or person 
 unknown to the plaintiff as trustees or a trustee for the said 
 club, and the said committee have full power and control 
 over the said club-house and the property of the said club, 
 and the persons or person who are or is trustees or a trus- 
 tee of the said club-house act under the order or direction 
 of the said committee, and the members of the said com- 
 mittee, other than the said defendants George John Fen- 
 wick Henry William Fenwick and Charles Atticus IS^onk, 
 are unknown to the plaintiff, but the aforesaid defendants 
 fully represent the said committee of the said club. 
 
 11. On the twenty-third of May one thousand eight 
 hundred and fifty-three, the committee of the said club 
 commenced the necessary works to elevate and raise the 
 roof and walls of the said club-house in order to add to the 
 ^eight thereof, and the plaintiff on the twenty-fourth of 
 May one thousand eight hundred and fifty-three, served, 
 or caused to be served a notice in writing of that date upon 
 John Dobson, the architect employed by the said committee 
 of the said club to make the additions thereto, objecting to 
 the heightening and raising of the said club-house, as detri- 
 mental and injurious to the said messuage or dwelling-house. 
 No. 12, Eldon Square, the plaintiff's adjoining property, as 
 being in breach of the covenant contained in the said inden- 
 ture of the twenty-sixth of September one thousand eight 
 hundred and twenty-six, and calling upon the said com- 
 mittee and architect not to proceed with the works, and in 
 con.sequence of such notice, the said works were stopped 
 
334 PLEADINGS. 
 
 until the twenty-seventh of May one thousand eight hundred 
 and fifty-three, when the plaintiff received a letter of that 
 ■ date from the Reverend Mr. Snowden, vyho is the secretary 
 of the said club, and by direction of the said committee, 
 including the said defendants George John Fenwick Henry 
 WilHam Fenwick and Charles Atticus Monk, stating that 
 the committee of the said club having considered the said 
 notice, had no proposal to make in answer thereto, and the 
 said committee of the said club have since recommenced 
 the said works, and are now proceeding to raise and elevate 
 the said club-house, and they intend to carry up the said 
 club-house to a considerable height above the level of the 
 roofs of the said eight other messuages or dwelling-houses 
 contiguous and adjoining thereto. 
 
 12. The corporation of the mayor, aldermen, and bur- 
 gesses of the town, and county of the town of Newcastle- 
 upon-Tyne, now represent the said mayor and burgesses of 
 the town of Newcastle-upon-Tyne, and the plaintiff by a 
 letter dated the thirtieth day of May one thousand eight 
 hundred and fifty-three, and signed by his solicitors, and 
 addressed to the town council of the said corporation, hath 
 given notice to the said corporation of the proceeding on 
 the part of the said club to elevate and raise their said club- 
 bouse, and hath called upon the said corporation to inter- 
 fere, but no notice hath as yet been taken of the said letter. 
 
 13. The said nine messuages or houses, with their appur- 
 tenances on the north side of Eldon Squai^ aforesaid, were 
 all erected and built according to specifications and plans, 
 which were approved of and sanctioned by the mayor, alder- 
 men, and common council of Newcastle-upon-Tyne afore- 
 said, and were accepted by the said Richard Grainger, and 
 all parties claiming under the said Richard Grainger knew 
 of and accepted the said plans and specifications, and the 
 covenant contained in the said indenture of the twenty-siztk 
 of September one thousand eight hundred and twenty-m^ 
 to build and maintain the said nine messuages or dwelling* 
 bouses, was entered into with reference and having regard 
 to, and adopted the said specification and plans, and the 
 object and purpose of the said covenant was (amongst other 
 things) to insure uniformity of elevation and appearance for 
 the said nine messuages or dwelling-houses, and the said 
 CoUingwood Forster Jackson the father of the plaintiff, and 
 others who purchased or acquired their pieces or parcels of 
 ground on the north side of Eldon Si^uare aforesaid, pur- 
 
FLEADINOB. 335 
 
 chased and acquired the same, and erected and built mes- 
 suages or dwelling-houses and other buildings thereon, 
 upon the faith of the said covenant, and upon the under- 
 standing that the height and appearance of the said nine 
 messuages or dwelling-houses was not to be disturbed, or 
 the plans and specifications according to which the same 
 were built and erected, deviated from ; but that the said nine 
 messuages or dwelling-houses were to be continually main- 
 tained and preserved; and in the deeds or instruments under 
 which the said club claim any right or title to, or interest 
 in the said club-house, or in some of such deeds or instru- 
 ments the said indenture of the twenty-sixth of September 
 one thousand eight hundred and twenty-six, and the cove- 
 nants thereof, and in particular the said covenant to build 
 and maintain the said nine messuages or dwelling-houses: is 
 fully recited, and the committee of the said club, and all 
 parties under whom they claim any right or title to the 
 said club-house, have always had full notice or knowledge 
 of the said indenture of the twenty-sixth of September orie 
 thousand eight hundred and twenty-six, and of the cove- 
 nants thereof, and in particular of the said covenant to 
 build and maintain the said nine messuages or dwelling- 
 houses, and the raising or heightening the said, club-house to 
 a.greater elevation than the'same was on the twenty-third of 
 May one thousand eight hundred and fifty-three, will destroy 
 the uniformity in elevation and appearance of all the said 
 messuages or dwelling-houses forming the north side of 
 Eldon Square as aforesaid, and will depreciate and injure 
 the value of all the property forming Eldon" Square, and in 
 particular the other eight messuages or dwelling-hauses, 
 with their appurtenances, on the north side of the- said 
 square as aforesaid, and such elevating or heightening as 
 aforesaid, is a breach of the said covenant contained in the 
 said indenture of the twenty-sixth of September one 
 thousand eight hundred and twenty six, to build and 
 maintain the said nine messu^es or dwelling-houses as 
 hereinbefore stated. 
 
 14, The committee of the said club are raising and ele- 
 vating the ,said club-house for the purpose of forming on 
 the top thereof smoking and billiard-rooms, and such rooms 
 from the noise and stench necessarily arising therefrom will 
 be a great nuisance to the plaintiff, and greatly interfere 
 with his use and enjoyment of his said messuage or dwelling- 
 house, and the elevation of the said club-house even by a 
 
336 
 
 PLEADINGS. 
 
 few feet above the said messuage or dwelling-house of the 
 plaintiff will interfere with the access of light and air to the 
 plaintiff's said messuage or dwelling-house, and also with 
 the free vent for passage of smoke and rain water from the 
 plaintiff's said messuage or dwelling-house, and will in other 
 respects much interfere with the ease and comfort of the 
 plaintiff and his family in his use and enjoyment of his said 
 messuage or dwelling-house. 
 
 15. The value of the plaintiff's said messuage or dwelling- 
 house to be let or sold will be greatly lessened and depreciated, 
 if the said club are allowed to construct and finish works so 
 commenced as aforesaid. 
 
 16. The defendants, the mayor, aldermen, and burgesses 
 of the town of Newcastle-upon-Tyne refuse to interfere to 
 prevent the completion of the said works, or the elevating or 
 heightening of the said club-house as aforesaid, or to take 
 any proceedings in respect of the said covenant of the said 
 indenture of the twenty-sixth of September one thousand 
 eight hundred and twenty-six. 
 
 17. The defendants George John Fenwick Henry 
 William Fenwick and Charles Atticus Monk, and the other 
 members of the committee of the said club, threaten and 
 intend to proceed with the said works, and to elevate and 
 raise the said club-honse, and to construct and complete the 
 said smoking and billiard rooms, unless restrained by the 
 order and injunction of this Honourable Court, as hereafter , 
 prayed, and they are now actually engaged in carrying on 
 the said works, and in elevating and raising the said club- 
 house, and in constructing the said smoking and billiard 
 rooms. 
 
 18. The said indenture of the twenty-sixth of Septem- 
 ber one thousand eight hundred and twenty-six, and the 
 plans and specifications mentioned and referred to therein, 
 and connected therewith, and hereinbefore mentioned, are in 
 the possession, custody, or power of the defendants hereto, 
 or they know where the same are deposited or are to be 
 found, and the said defendants have now or had lately in 
 their possession, custody, or power, or in the possession, 
 custody, or power of their solicitors or agents, divers deeds, 
 documents, plans, specifications, drawings, notices, papers, 
 and writings, or some deed, document, plan, specification, 
 drawing, notice, paper, or writing of, or relating to, or touch- 
 ing, or concerning the matters aforesaid, or some of those 
 matters, and whiereby the truth of such matters appear. 
 
PLEADINGS, 
 
 PRAYER. 
 
 The plaintiff prays as follows : 
 
 1. That the defendants George John Fenwick, Henry 
 William Fenwick, and Charles Atticus Monk, and the 
 other members of the committee of the said club, their 
 architects, contractors, builders, servants and workmen, 
 may at the hearing of this cause be restrained by the 
 decree and in the meantime by the order and injunc- 
 tion of this Honourable Court, from further proceeding 
 with the said works, and from raising or elevating or 
 attempting to raise or elevate the said club-house, and 
 from permitting or suffering the said club-house to re- 
 main at a greater elevation or height than the same 
 was previous to the twenty-third day, of May one 
 thousand eight hundred and fifty-three, and from 
 building or maintaining any greater number of stories 
 than three stories to the said club-house. 
 
 2. That the said defendants, the mayor, aldermen, and 
 burgesses of the town and county of the town of 
 Nevvcastle-upoD-Tyiie, may in like manner as afore- 
 said, be restrained from permitting or suffering the said 
 other defendants, and the other members of the com- 
 mittee of the said club, to proceed with their said 
 works, or to elevate or raise the said club-house to a 
 greater height than three stories, or to maintain more 
 than three stories thereon, or to break or violate the 
 said covenant in the said indenture, of the twenty- 
 sixth of September one thousand eight hundred and 
 twenty-six, to build and maintain nine good and sub- 
 stantial messuages, tenements, or dwelling houses, three 
 stories high, according to the detail and specification 
 therein mentioned. 
 
 3. That if necessary and proper the said defendants, the 
 mayor, aldermen and burgesses of the town and county 
 of the town of Newcastle-upon-Tyne, may be directed 
 and compelled to permit and suffer the plaintiff, to use 
 their names in any proceedings -at law or in equity, 
 which he may be advised to institute or take against 
 the committee of the said club, in respect of the said 
 covenant, in the said indenture of the twenty-sixth of 
 September one thousand eight hundred and twenty- 
 
 337 
 
338 
 
 PLEADINGS. 
 
 six, hereinbefore mentioned, upon receiving from the 
 said plaintiff, a proper and sufficient indemnity to 
 be settled under the direction of this Honourable 
 Court. 
 4. That the plaintiff may have such further or other 
 relief, as the nature of the case require. 
 
 Names of the defendants. 
 
 The defendants to this Bill of Complaint is, 
 
 George John Fenwick, 
 Henry William Fenwick, 
 (/harles Atticus Monk, and 
 
 The Mayor, Aldermen, and Burgesses of the Town 
 and County of Newcastle-upon-Tyne. 
 
 William Hislop Clark. 
 
 Bill hy Trustee to be Indemnified by Cestui que Trust against 
 a Liability/ as Registered Holder of Shares in a Joint 
 Slock Bank, and for a ne exeat {a). 
 
 In Chancery. 
 Lord Chancellor. 
 Vice Chancellor Wood. 
 
 John William Fenwick - - Plaintiff. 
 
 James Eddowes - Defendant 
 
 BILL OF COMPLAINT, 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship John 
 William Fenwick, of North Shields, in the county of Nor- 
 thumberland, gentleman, the above-named plaintiff, as 
 follows : 
 
 (a) N. B. In this case the order was made for the ne exeat, and 
 the money paid at Newcastle the following day. 
 
PLEADINGS. 339 
 
 1. The plaintiff is the registered holder of two hundred 
 shares in the Newcastle, Shields, and Sunderland Union 
 Joint Stock Banking Company. 
 
 2. The plaintiff has no beneficial interest whatever in 
 such two hundred shares or any of them, and he is a mere 
 trustee thereof for the purposes hereinafter stated, and he 
 consented to be registered in the books of the said banking 
 company, as the holder thereof, at the request of the 
 defendant James Eddowes of South Shields in the county 
 of Durham surgeon, and upon an express agreement with 
 him that he the defendant, James Eddowes, would provide 
 the plaintiff with the necessary funds for paying to the said 
 banking company all calls to be made in respect of the 
 said shares as and when the same should be made, and 
 would personally bear all losses and expenses to arise in 
 respect thereof, and that the plaintiff should incur no 
 damage or liability whatever by reason, or in consequence 
 of his accepting the said trust, and of his name being 
 registered in the books of the said banking company as the 
 holder or legal proprietor of the said shares. 
 
 3. By an indenture bearing date on or about the third 
 day of September one thousand eight hundred and forty- 
 seven, and duly made and executed between and by the 
 said James Eddowes therein described as of South Shields 
 in the county of Durham surgeon of the one part, and the 
 plaintiff of the other part, after reciting that the said James 
 Eddowes had two hundred shares in the Newcastle, Shields 
 and Sunderland Union Joint Stock Banking Company, and 
 had lately transferred the same into the name of the said 
 plaintiff to be held by him upon the trusts thereinafter 
 expressed, it is witnessed and the plaintiff thereby for 
 himself his heirs executors and administrators, covenanted 
 with the said defendant James Eddowes his executors and 
 administrators, that he the plaintiff his executors adminis- 
 trators and assigns, would stand possessed of and interested 
 in the said shares so transferred to him as aforesaid, and the 
 dividends and annual proceeds thereof, upon such trusts 
 and for such intents and purposes as the said defendant 
 James Eddowes should by deed or will executed respec- 
 tively as therein mentioned appoint, and for want of such 
 appointn)ent and so far as the same if made, should not 
 extend upon trust for the children of the said defendant 
 James Eddowes, at the times and in the manner therein 
 mentioned, and with such provisions for their maintenance 
 
 z 2 
 
340 PLEADINGS. 
 
 and advancement, and for the accumulations of the divi- 
 dends and income due during the minorities of such 
 children as therein mentioned, and with powers of sale and 
 reinvestment of the monies to arise from the sale of the 
 said shares, with the consent of the said defendant James 
 Eddowes during his life, and with the usual provisions for 
 the change of trustees, and for the indemnity of the trustee 
 or trustees for the time being of the said indenture. 
 
 4. The affairs of the said banking company having become 
 embarrassed, an order was made by His Honor the Master 
 of the Rolls on the thirty-first day of January one thousand 
 eight hundred and fifty-three, directing that the said bank- 
 ing company should be wound up under the provisions of 
 the "Joint Stock Companies Winding-up Acts 1848 and 
 1849," and in the course of the proceedings taken under 
 the said order the list of contributorics of the snid company 
 has been settled, and the name of the plaintiff, as the 
 
 , registered proprietor and apparent owner of the said two 
 hundred shares, has been included in such list as one of the 
 contributorics of the said company. 
 
 5. On the tenth day of May one thousand eight hundred 
 and fifty-three, a call was made on the plaintiff, as sueh 
 alleged contributory of the said banking company, for two 
 thousand four hundred pounds in respect of the said two 
 hundred shares so standing in his name as the registered 
 holder thereof as aforesaid, and subsequently by an order 
 dated the sixth day of July one thousand eight hundred 
 and fifty-three, and made by His Honor the Master of the 
 Rolls, at his chambers. Rolls Yard, Chancery Lane, in the 
 matter of the "Joint Stock Companies Winding-up Acts 
 1848 and 1849" and of the "Newcastle, Shields and 
 Sunderland Union Joint Stock Banking Company," it was 
 peremptorily ordered that the plaintiff, as one of the con- 
 tributorics of the said company, should within seven days 
 after the service thereof pay to the official managers of the 
 said company, at their office. No. 11, Royal Arcade, New- 
 castle-upon-Tyne, the sum of two thousand four hundred 
 pounds, such sum being the balance then appearing due 
 from the plaintiff' on his account with the said «corapany, 
 and such balance order was duly served upon the plaintiff 
 accordingly. 
 
 6. The plaintiff on the twenty-seventh day of July one 
 thousand eight hundred and fifty-three, received from Mr. 
 
PLEADINGS. 341 
 
 Joseph Watson, the solicitor of the said official managersj 
 a letter sent and addressed to him on behalf of the company, 
 which was in the following terms : 
 
 Newcastle 26 / 7 / 1853. 
 Esteemed Friend, 
 
 The official managers of the Union Banking Company 
 have instructed me to say, that finding so large a sum as 
 £2400 unpaid upon the 200 shares standing in your name 
 in the books of the company, they issued a balance order 
 against you for that amount in the hope that it would pro- 
 duce a settlement ; that as. they have not heard from you 
 they feel that they cannot allow the matter to remain in its 
 present position, and they have instructed me to put the 
 balance order in force unless a satisfactory arrangement be 
 forthwith made for payment of the sum due. 
 
 Yours truly 
 
 Joseph Watson 
 J W Fenwick Esquire. 
 
 7. On the twenty-eighth day of July one thousand eight 
 hundred and fifty-three, the plaintiff showed to the de- 
 fendant James Eddowes the letter he had received from 
 Mr. Watson, and requested payment from the defendant 
 of the amount of the said call, and the defendant then 
 showed to the plaintiff a letter in the shape of a case, which 
 was all in the said defendant's own handwriting, and which 
 the defendant stated he was going to send off to Mr. 
 Ingham for his opinion as to his liabihty in the event of the 
 official managers putting the plaintiff into the Gazette. 
 
 8. Such last-mentioned letter was sent accordingly, and 
 it distinctly stated, as the fact is, that he the defendant 
 could now carry the whole of his property in his pocket, 
 and that the only thing he could not take away was a 
 certain leasehold house, but that he intended to hypothecate 
 as a settlement on the marriage of his daughter; it stated 
 also that he could start at a moment's warning, and that if 
 proceedings were taken against him he would at once be 
 off, that he was in " light marching order," and he wound . 
 up the letter with a quotation from Macbeth, " We fly by 
 night," &c. • 
 
 9. Two days previously to the occasion last referred to 
 upon a discussion taking place with the plaintiff as to the 
 
342 PLEADINGS. 
 
 Bank matters the said defendant James Eddowes stated 
 that he intended to leave the countrj', and that he would 
 purchase a " nice little chalet" in the mountains of Switzer- 
 land, and live comfortably, and he added that he had long 
 thought of providing a retreat for his family in the event of 
 matters turning out badly with the Bank. 
 
 10. The defendant is now on the point of going abroad 
 to parts beyond the seas to settle and reside abroad in 
 Switzerland or elsewhere, and with no intention of return- 
 ing to this country, and he has frequently declared his 
 intention so to do as well to the plaintiff as to other persons, 
 and he has been collecting and gathering in his debts and 
 effects for that purpose, and his motive for quitting the 
 kingdom is solely to avoid the process of the Court. 
 
 11. The defendant, James Eddowes, some time since, 
 pursuant to the aforesaid agreement as to providing funds 
 for the payment of calls on the said shares, paid to the 
 plaintiff the sum of one thousand six hundred pounds, the 
 amount of previous calls made by the said banking com- 
 pany in respect of the said two hundred shares, and such 
 sum of sixteen hundred pounds was thereupon handed over 
 by the plaintiff to the said banking company accordingly. 
 
 12. The sum of two thousand four hundred pounds con- 
 stitutes an equitable debt due to the plaintiff from the said 
 defendant James Eddowes, and by virtue of the express 
 agreement between them hereinbefore referred to the said 
 defendant is bound to pay over the said sum to the plaintiff 
 for the purpose of enabling him to satisfy- the demand of the 
 official managers of the said banking company, and he is 
 also bound to indemnify the plaintiff from all liability and 
 loss in respect thereof. 
 
 13. In the event of the said defendant James Eddowes 
 going beyond sea as he threatens and intends to do, the 
 plaintiff will be in great danger of losing all remedy for 
 recovering the said equitable debt to the amount of two 
 thousand four hundred pounds and upwards, and of having 
 summary proceedings forthwith taken against him by the 
 said banking company for compelling instant payment 
 thereof. 
 
PLEADINGS. 343 
 
 PRAYER. 
 
 The plaintiff therefore prays as follows : 
 
 1. That the defendant maybe ordered to pay over to the 
 plaintiff the said sum of two thousand four hundred 
 pounds, the amount of such equitable debt as aforesaid, 
 for the purpose of enabling him to satisfy the demand 
 of the official managers of the said banking company 
 in respect of the two hundred shares so standing in 
 the plaintiff's name as aforesaid, and that it may be 
 declared that the plaintiff is only a trustee of the said 
 shares for the benefit of the said defendant, and for the 
 purposes of the said indenture of the third day of 
 September one thousand eight hundred and forty- 
 seven, and that the said defendant, James Eddowes, 
 may be decreed to indemnify the said plaintiff from all 
 liability and loss in respect of the said shares. 
 
 2. That her Majesty's writ or writs of ne exeat regno 
 may be issued by and out of this Honourable Court 
 against the said defendant James Eddowes until answer 
 and further order, for stay of his departure cut of the 
 jurisdiction of this Honourable Court, and that the 
 same may he marked for the sum of two thousand 
 four hundred pounds, with such further sum as may 
 be reasonable for interest and expenses, or for such 
 other sum as to the Court shall seem meet. 
 
 3. That the plaintiffs may have such further or other 
 relief as the nature of the case may require. 
 
 Name of the defendant. 
 The defendant to this bill of complaint is, 
 James Eddowes. 
 
 (Name of counsel). 
 
 F. Sims- Williams. 
 
344 
 
 PLEADINGS. 
 
 Bill Peking Declaratory ■ Decree on the construction of 
 a Will, the question being as to the ademption of certain 
 Specific Legacies, some only of the Specific Legatees 
 affected being made parties, and in the absence of the 
 Cesiuis que Trust under the Will of one of the Residuary 
 Legatees, (a) 
 
 In Chancery. 
 Lord Chancellor. 
 Vice Chancellor Kindersley. 
 
 William Tyrrell and James Bishop - Plaintiffs. 
 
 John Clark, John Keilor, and Mary Keilor 
 his wife, William Dawe, Michael 
 Forristall, Edith Clark, William 
 Robert Stephenson, and William 
 Maud - - - - Defendants. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship William 
 Tyrrell, of Earl Street, Finsbury, in the county of Mid- 
 dlesex, gentleman, and Jaraes Bishop, of Lillypot Lane, 
 Noble Street, in the city of London, vendor of news- 
 papers, the above-named plaintiffs, as follows: 
 
 1. George Saunders Turner late of Plaistow in the 
 county of Essex deceased duly made signed and published 
 his last will and testament in writing, bearing date on or 
 about the seventeenth day of November one thousand 
 eight hundred and thirty-seven, and after appointing his 
 wife Mary Turner since deceased executrix, and the said 
 
 (a) N.B. The trustees were willing to act and to distribute the 
 funds out of Court, upon the question being settled between any of 
 the respective parties interested in the specific legacies and the residue. 
 
 The frame of the suit was of course not such as to protect tlie 
 trustees, the absent parties not being bound by the decree. 
 
PLEADllNGS. 345 
 
 plaintiffs William Tyrrell and James Bishop, called by 
 mistake in the will, Joseph Bishop, executors thereof, and 
 bequeathing to the said plaintiflfe a legacy of one hundred 
 pounds each, which he directed to be paid, as well as his 
 funeral and testamentary expenses out of the money at 
 his bankers at the time of his decease, or if that should be 
 insufficient, then by a sale of so much stock as should be 
 necessary for that purpose out of the stocks or funds which 
 should be standing in his own name in the books of the 
 Governor and Company of the Bank of England, and after 
 a specific bequest unto his said wife of certain furniture and 
 chattels, his said will proceeded as follows: 
 
 " And subject to the payment of the two legacies of one 
 hundred pounds each to my executors, and my funeral 
 and testamentary expenses, I give and bequeath unto 
 my said wife, the dividends which shall or may happen 
 to become due and payable in her lifetime, of all stocks 
 or funds which shall be standing in my own name- 
 in the books of the governor and company of the 
 Bank of England, at the time of my decease, for her 
 own use and benefit ; I also give and bequeath unto 
 my said wife, for her own use and benefit, the divi- 
 dends which shall or may happen to become due and 
 payable in her lifetime of five thousand pounds three 
 per cent, consolidated Bank annuities, fonr thousand 
 pounds three-and-a-half per cent, reduced Bank an- 
 nuities, one thousand seven hundred and thirty-two 
 pounds ten shillings new three-and-a half peir cent. 
 Bank annuities, and five hundred pounds three per 
 cent, reduced Bank annuities, now standing in the 
 books of the governor and company of the Bank of 
 England, in the names of Mary Turner, Samuel 
 Driver, and me George Saunders Turner, subject 
 to the life interest of the said Samuel Driver 
 therein, upon whose decease the said last-described 
 stocks will, under and by virtue of the settlement 
 made previously to the marriage of the said Samuel 
 Driver with Mary, his late wife (who was my sister), 
 devolve to me, my executors, administrators, or 
 assigns, and I give and bequeath, after the decease 
 of. my said wife, all subsequent dividends payable 
 on one thousand pounds part of the said four 
 thousand pounds three-and-a-half per cent, reduced 
 Bank annuities, unto the churchwardens of the parish 
 of Saint John of Wapping in the county of Mid- 
 
346 PLEADINGS. 
 
 dlesex, for the time being, for the purpose of purchasing 
 bread and coals, to be given away by the said church- 
 wardens to such poor inhabitants of the said parish as 
 they shall think fit, on the twenty-first day of Decem- 
 ber in every year, for ever ; and I give and bequeath, 
 after the decease of my said wife, all subsequent di- 
 vidends payable on two thousand pounds other part of 
 the said four thousand pounds three-andia-half per 
 cent, reduced Bank annuities, unto the treasurer for 
 the time being of the charity schools of the said parish . 
 of Saint John of Wapping, to be applied towards 
 carrying on the benevolent designs of the said charity 
 schools for ever, but the two last-mentioned bequests 
 in favour of the poor inhabitants of the said parish of 
 Saint John of Wapping and the charity schools of the 
 said parish, are made upon the express condition that 
 an account of the said two bequests be painted on 
 boards, and framed and put up in some conspicuous 
 part of the parish church of Saint John of Wapping, ■ 
 by and at the joint expense of the said churchwardens, 
 and" of the treasurer of the said charity schools for the 
 time being, and replaced at such joint expense as often 
 as need or occasion shall require, and the said two be- 
 quests shall be null and void, in case the said churchward- 
 ens and the treasurer of the said charity schools for the 
 • time being shall not strictly comply with and fulfil the 
 above conditions ; and I give and bequeath, after the 
 decease of my said wife, unto William Dawe, the son of 
 my late sister Mary Driver, one thousand pounds, the 
 remaining part of the said four thousand pounds three- 
 and-a-half per cent, reduced Bank annuities, and 
 all subsequent dividends payable thereon, for his own 
 use and benefit." 
 [Set forth shortly, remainder of will bequeathing specific 
 sums of stock to several other charitable institutions in the 
 like terms, appointing Willig,m James Clark, John Clark, 
 Mary Keilor, and William Dawe, his residuary legatees.] 
 
 2. The testator, George Sanders Turner, died on the 
 third day of August one thousand eight hundred and 
 thirty-hine, without having revoked or altered his said will, 
 leaving the said Mary Turner his widow, and the said 
 William James Clark, John Clark, Mary Keilor, and 
 William Dawe, the residuary legatees named in his will, 
 him surviving. 
 • 3. The said will was duly proved on the seventh day of 
 
PLEADINGS. 347 
 
 September one thousand eight hundred and thirty-nine, 
 by his executrix and executors therein named, in the 
 Prerc^ative Court of the Archbishop of Canterbury. . 
 
 4. At the date of the said will, the several sums of four 
 thousand .pounds three pounds ten shillings per cent, 
 reduced annuities, five thousand pounds three pounds per 
 cent, consolidated annuities, one thousand seven hundred 
 and thirty-two pounds ten shillings new three pounds ten 
 shillings per cent, annuities, and five hundred pounds three 
 pounds per cent, reduced annuities, thereby specifically 
 bequeathed, were standing in the joint naaies of Mary 
 Turner (afterwards Mary JLJriver), Samuel Driver, and of 
 the said testator, George Sanders Turner, in the books of 
 the Governor and Company of the Bank of England ; and 
 by virtue of a certain indenture of settlement, bearing 
 date on or about the twenty-fifth day of June one thou- 
 said eight hundred and twenty-three, which was executed 
 on the marriage of the said Samuel Driver with the 
 said Mary Driver, who was the testator's sister, the said 
 Samuel Driver having then survived his said wife, was 
 entitled for his life, as such survivor, to the dividends of the 
 said several sums of stock. 
 
 5. Upon the death of the said Samuel Driver, which 
 took place in the month of February one thousand eight 
 hundred and thirty-nine, being after the date of the said 
 will, the said George Saunders Turner, the testator; became 
 absolutely entitled, under the trusts of the said indenture of 
 settlement of the twenty-fifth day of June one thousand 
 eight hundred and twenty-three, to the capital of the said 
 several sums of four thousand pounds three pounds ten 
 shillings per cent, reduced annuities, five thousand pounds 
 three pounds per cent, consolidated-annuities, one thousand 
 seven hundred and thirty-two pounds ten shillings new 
 three pounds ten shillings per cent, annuities, and five hun- 
 dred pounds three pounds per cent, reduced annuities, 
 so specifically bequeathed by his will as aforesaid. 
 
 e. The testator, upon so becoming entitled, and on or 
 about the first day of March one thousand eight hundred 
 and thixty-nine, being after the date of his said will, pro- 
 cured the several last-mentioned sums of stock to be 
 transferred into his own name. 
 
 7, The Bank transfer warrants, which were signed by 
 the testator on the occasion of such transfers, and which 
 were found by the executrix and executors among the te&- 
 
348 PLEADINGS. 
 
 tator's papers shortly after his death, are all dated the first 
 day of March one thousand eight hundred and thirty-nine, 
 and are respectively signed as follows: "George Sanders 
 Turner, survivor in a joint account with Mary Driver, 
 formerly Mary Turner, and Samuel Driver deceased." 
 
 8. The only Government stocks and funds of which the 
 testator died possessed were the following, viz. : Twelve 
 thousand pounds three pounds per cent, consolidated an- 
 nuities, eight thousand pounds three pounds ten shillings 
 per cent, reduced annuities, three thousand six hundred 
 pounds new three pounds ten shillings per cent, annuities, 
 and two thousand pounds reduced three pounds per cent, 
 annuities, all of which were standing in the testator's name, 
 at the time of his death, in the books of the Governor and 
 company of the Bank of England. 
 
 9. That under the circumstances aforesaid, as the plaintiffs 
 are advised, there is reasonable doubt whether there has not 
 been an ademption of the specific legacies of stock bequeathed 
 by the said will, and which were to take effect after the 
 death of the said testator's wife Mary Turner, out of the 
 said several sums of four thousand pounds three poimds 
 ten shillings per cent, reduced Bank annuities, one thousand 
 seven hundred and thirty-two pounds ten shillings new 
 three pounds ten shillings per cent. Bank annuities, and 
 five hundred pounds three pounds per cent, reduced Bank 
 annuities, so respectively transferred by the testator into 
 his own name, after the date of his will as aforesaid. 
 
 10. That a question has also arisen whether the gift to 
 the churchwardens for the time being of the parish of 
 Wapping, of the dividends of the sum of one thousand 
 pounds Bank three pounds ten shillings per cent, reduced 
 annuities, part of the -said sum of four thousand pounds 
 like annuities, and the like gift to the treasurer of the charity 
 schools of that parish, of the dividends of the sum of two 
 thousand pounds Bank three pounds ten shillings per cent, 
 reduced annuities, further part of the said sum of four 
 thousand pounds like annuities, would pass the corpus of 
 those respective sums of stock, and also as to the effect of 
 the condition attached to the said charitable bequests. 
 
 11. That two painted boards have been affixed by the 
 churchwardens in a conspicuous part of the parish church 
 of Saint John, Wapping, with a statement of the amount 
 and objects of the last mentioned charitable bequests, and 
 also the name of the donor exhibited thereon, in com- 
 pliance with the terms of the said will. 
 
PLEADINGS. 34d 
 
 12. That by reason of such questions arising on the 
 construction of the said will as aforesaid, the plaintiffs 
 cannot safely distribute the said several stocks and funds 
 without having the rights and interests of the several 
 parties therein ascertained and declared by the Court. 
 
 13. That the question of ademption which arises on the 
 said will is substantially the same with respect to all the 
 several charitable bequests, and with a view to save the 
 expense of making numerous parties to this suit, the plain- 
 tiffs are desirous that such question of ademption should be 
 determined as to the gifts for the benefit of the parish of 
 Wapping only, and so far only as it respects the sum of 
 four thousand pounds three poimds ten shillings per 
 cent, reduced annuities, and in the absence of the several 
 other charitable institutions. 
 
 14. The present churchwardens of the parish of Saint 
 John, Wapping, are Robert Stephenson of High Street 
 Wapping provision merchant, and William Maud of High 
 Street Wapping hoop merchant and cooper, and the said 
 Robert Stephenson is also the present treasurer of the 
 charity schools of Saint John, Wapping, and they respec- 
 tively claim to be entitled to the said charitable bequests for 
 the benefit of the said parish of Wapping, and are severally 
 made defendants hereto. 
 
 15. That for the purpose of such declaratory order as is 
 sought by this suit, as the plaintiffs are advised, having 
 regard to the provisions of the late Chancery Improvement 
 Act 15 & 16 Vict. c. 86, the several specific legatees of 
 the respective sums of one thousand seven hundred and 
 thirty-two pounds ten shillings new three pounds ten 
 shillings per cent, annuities, and five hundred pounds three 
 pounds per cent, reducedannuities, are not necessary parties 
 to this suit. 
 
 16. The said Edith Clark is in the receipt and enjoy- 
 ment of the dividends of the sum of six thousand pounds 
 Bank three pounds per cent, consolidated annuities, so 
 bequeathed to her for her life as aforesaid, no question 
 arising as to her life interest in that fund. 
 
 17. The said William James Clark, one of the residuary 
 legatees under the said will, has died since the death of the 
 testator George Sanders Turner, having made a will dated 
 the fifteenth day of May one thousand eight hundred and 
 forty-three, whereof he appointee! the defendant Michael 
 Forristall, therein written by mistake Forrestall, and the 
 said Mary Turner and Edith Clark, executors. 
 
350 PLEADINGS. 
 
 18. The will of the said William James Clark was duly 
 proved on or about the fourth day of April one thousand 
 eight hundred and forty-eightj in the Prerogative Court of 
 the Archbishop of Canterbury, by the defendant Michael 
 Forristall alone, the said Mary Turner and Edith Clark 
 having renounced probate thereof. 
 
 19. A suit in Chancery has been instituted, and is now 
 pending, under the title of " Clark versus Forrestall," for 
 the administration of the estate of the said William James 
 Clark, and in that cause a decree has been made and 
 various proceedings taken for realising his estate, and con- 
 tracts have been entered into for sale of certain parts 
 thereof, but the plaintiffs are unacquainted with the par- 
 ticulars of those proceedings, or with the parties now claim- 
 ing an interest in his estate, and, as they are advised and 
 submit, the said Michael Forristall, as the sole legal personal 
 representative of the said William Jgimes Clark, sufficiently 
 represents the several parties interested in his personal 
 estate for the purposes of this suit. 
 
 20. The said Mary^Turner, the widow of the testator 
 Geoige Sanders Turner, died on the fourteenth day of 
 March one thousand eight hundred and fifty-three, having 
 made a will, dated the fourteenth day of February one 
 thousand eight hundred and forty, whereof she appointed 
 the plaintiff William Tyrrell, and the said Edith Clark, 
 executors, who, on the seventeenth day of June one 
 thousand eight hundred and fifty-three, duly proved the 
 same in the Prerogative Court of the Archbishop of Can- 
 terbury, and thereby became and now are her sole legal 
 personal representatives. 
 
 21. That a question has arisen between her personal re- 
 presentatives and the parties interested in the residue of the 
 said testator's personal estate, whether there ought to be an 
 apportionment of the dividends and income of the trust 
 muds and property in which the said Mary Turner took a 
 life interest under the said will, for the period which inter- 
 vened between the day of her death and the halfryearly 
 days or times of payment of such dividends then next 
 following. 
 
 22. In respect of such question of apportionment, the 
 said Edith Clark, as one of the legal personal representa- 
 tives of the said Mary Turner is, as the plaintiffs are 
 advised, a necessary party'to this suit. 
 
 23. That as the plaintiffs are advised, it is unnecessary 
 for the purposes of this suit that there should be a general 
 
PLEADINGS. 351 
 
 administration of the testator's personal estate, or that the 
 accounts thereof should be' taken by the order and under 
 the direction of the Court, and the several persons bene- 
 ficially interested therein are willing and desirous to waive 
 the taking of such accounts. 
 
 24. The plaintiffs are willing to take upon themselves the 
 distribution of the aforesaid several stock and funds amongst 
 the persons entitled, if the Court shall see fit, upon obtain- 
 ing adeclaratory order as to the rights and interests therein 
 of the respective parties hereto, without requiring the several 
 transfers and payments to be made under the order and 
 direction of the Court. 
 
 PRAYER. 
 
 The plaintiflFs pray as follows : 
 
 1. That the rights and interests of the several parties 
 defendants hereto, in to and out of the personal estate 
 of the said testator George Sanders Turner, and par- 
 ticularly so far as relates to the said specific bequests of 
 stock, and the dividends thereof, may be ascertained 
 and declared by the Court, and if the Court shall 
 see fit, without taking the accounts of such personal 
 estate, or directing a general administration thereof, or 
 that, if necessary, but not otherwise, the said testator's 
 personal estate may be administered and applied by and 
 under the direction of this Honourable Court, and that 
 all proper and necessary directions may be given for 
 the purposes aforesaid, and for aiding and protecting 
 the said plaintiffs in the execution of the trusts of the 
 said will. 
 
 2. That the plaintiffs may have such further or other 
 relief as the nature of the case may require. 
 
 Names of the defendants. 
 
 The defendants to this Bill of Complaint are, 
 
 John Clark, 
 
 John Keilor and Mary Keilor his wife, 
 
 William Dawe. 
 
 Michael Forristall, 
 
 Edith Clark, 
 
 William Robert Stephenson, and 
 
 William Maud. 
 
 (Name of Counsel). 
 
 F. Sims Williams. 
 
352 PLEADINGS. 
 
 Bill for Declaratory Decree as to rights of parties under a 
 devise and subsequent settlement, and for conveyance of 
 estates by devisees in trust to uses of Settlement, and for 
 Injunction and Receiver {a). 
 
 In Chancery. 
 
 Master of'the Rolls. 
 
 Geor^iana Augusta Bojd, wife of James 
 Edward Boyd, by Mary Ann Amelia 
 Healey widow her mother and next 
 friend ... Plaintiff. 
 
 James Jagger and Jane his wife, James 
 Edward Boyd, James Charles Boyd, 
 George Nutting, and William Lewis, Defendants. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship the plain- 
 tiff Georgiana Augusta Boyd, the wife of the above-named 
 defendant James Edward Boyd (formerly Georgiana Augusta 
 Healey spinster) by Mary Ann Amelia Healey of No. 9 
 
 (a) The plaintiff was the sole issue of Luke Healey George Healey. 
 The following proceedings were taken in this cause of Boyd v. Jaggar, 
 which it may be useful to state, as illustrating the new practice. On 
 the 23rd of March 1853, an order was made on the motion for an 
 injunction and receiver. On the 21st of May following, a notice of 
 motion for a decree was served for the 20th of June. On the 25th of 
 May, pending this notice of motion for a decree, an order was made 
 on the plaintiff's motion for an allowance of 2002. per annum, until 
 further order. On the 21st of July following, afler an application had 
 been made ex parte, which failed both at the Bolls and before the Lords 
 Justices, an order was made on motion upon notice that the motion for 
 decree be set down to be heard, notwithstanding that the month's time 
 allowed by the 22nd and 27tb Orders of the 7th day of August 1852, 
 had elapsed. On the 23rd of July, a decree was made on this motion, ■ 
 declaring that the estates in question passed by the will to the plaintiff, 
 and were comprised in the settlement, and giving the consequential 
 relief asked by the bill. The case is not yet reported. 
 
PLEADINGS. ' 353 
 
 Cornwall Crescent, Camden Town, in the county of Middle- 
 sex, widow, her mother and next friend, as follows j — 
 
 [1. Set forth will of George Healey, the testator in the 
 cause, by which after the failure of various gifts and limita- 
 tions, one inoiety of the testator's property is given to Luke 
 Healey George Healey and his issue, and the other moiety 
 to George Richards Healey, and his issue.] 
 
 2. The said testator George Healey died on or about the 
 eleventh of December one thousand eight hundred and 
 fourteen, without having revoked or altered his said will, 
 leaving the said Jane Jagger (then Jane Healey) his widow 
 and the said Luke Healey George Healey in the said will, 
 sometimes called Luke Healey the eldest son and heir at 
 law of the said testator, and the said George Richards Healey 
 in the said will, sometimes called George Healey the second 
 and only other son of the said testator, and the said Jane 
 Ann Healey spinster his only daughter, and that on the 
 twenty-eighth day of February one thousand eight hundred 
 and fifteen,, the said Jane Jagger then Jane Healey duly 
 proved his said will, and she is now the sole legal personal 
 representative of the said testator. 
 
 3. The said Robert Williams and Samuel Mersey never 
 proved the said will, or in any manner acted in the execution 
 of the trusts thereof, and they have respectively departed 
 this life. 
 
 4. In or about the year one thousand eight hundred and 
 fifteen, the said Jane Jagger intermarried with, and that 
 she is now the wife of the defendant James Jagger, and the 
 said James Jagger and Jane his wife entered into the pos- 
 session, or into the receipt of the rents and profits of the 
 real estates of said testator, and also took possession of his 
 personal estate, and thereout and out of the rents and profits 
 of his real estates they paid all his just debts and his funeral 
 and testamentary expenses, and the said annuity of fifty-two 
 pounds, and the legacies given by his said, will. 
 
 5. In or about the month of May one thousand eight 
 hundred and nineteen, the said Luke Healey George Healey 
 intermarried with the above-named Mary Ann Amelia 
 Healev, and that on or about the nineteenth of May one 
 thousand eight hundred and twenty-three, the said Luke 
 Healey George Healey died intestate, having attained the 
 age of twenty-one years, and without having had any issue 
 born to him in his lifetime, but leaving said Mary Anti 
 Amelia Healey enceinte by him of the plaintiff, andtiatthe 
 
 A A 
 
354 
 
 PI.EADING8. 
 
 plaintiff was bom on or about the iwenty-fifth day of July 
 one thousand eight hundred and twenty-three, and is the 
 only child and heir at law of the said Luke Healey George 
 Healey. 
 
 6. The said Jane Ann Healey the daughter of the said 
 testator, died intestate and unmarried in the lifetime of the 
 said Luke Healey George Healey. 
 
 7. In the month of April one thousand eight hundred 
 and twenty-five, the said Mary Ann Amelia Healey and the 
 plaintiff, then an infant under the age of twenty-one years 
 by said Mary Ann Amelia Healey her next friend, exhibited 
 their original Bill of Complaint in this Court against said 
 James Jagger and Jane his wife, George Richards Healey 
 and Robert Williams as defendants thereto, thereby pray- 
 ing amongst other things for an account of the . personal 
 estate of said testator George Healey, and for an account of 
 the rents and profits of his real estates, wherein a life interest 
 was so devised as aforesaid to the said Luke Healey George 
 Healey, and that it might be declared that the whole equit- 
 able estate and interest of and in the freehold and copyhold 
 lands and premises devised by said will in trust for said 
 Luke Healey George Healey during his life, was then vested 
 subject as therein mentioned in the plaintiff for her absolute 
 use and benefit, and praying for a receiver and injunction 
 in the meantime against the said James Jagger and Jane 
 his wife. 
 
 8. In the month of January one thousand eight hundred 
 and thirty-one, the plaintiff, by her said next friend and 
 said Mary Ann Amelia Healey, filed a supplemental bill in 
 the said matter against the said James Jagger, and Jane his 
 wife stating and praying as therein mentioned. 
 
 9. The said James Jagger and Jane his wife, and George 
 Richards Healey, disputed in the said causes the title of the 
 plaintiff to the said estates so devised in trust for plaintiff's 
 said late father, Luke Healey George Healey, for his life as 
 aforesaid, being the estates in the said bill first mentioned, 
 and they pretended that the plaintiff was not the only child 
 and lawful heir of the said Luke Healey George Healey. 
 
 10. By the decree made in the said causes by his Honor, 
 the then Master of the Rolls, and dated the sixteenth day of 
 July one thousand eight hundred and thirty-one, an issue 
 at law was directed to try whether the plaintiff was such 
 lawful heir and the right and title of the plaintiff as the 
 only child and lawful heir of the said Luke Healey George 
 
PLKADINGS. 355 
 
 Healey was established by the verdict upon the trial of 
 such issue in the month of February one thousand eight 
 hundred and thirty-two. 
 
 1 1. An application by the said defendants in the said 
 suits for a new trial of the said issue was refused by the said 
 Master of the Rolls, and afterwards on appeal by the Lord 
 High Chancellor, and the said defendants, or some of them, 
 were ordered to pay the costs of the said appeal. 
 
 12. A receiver was appointed by this Court of the rents 
 and profits of the said estates in the aforesaid suits particu- 
 larly mentioned or referred to. 
 
 13. In or about the month of September one thousand 
 eight hundred and thirty-eight, the defendant, James 
 Edward Boyd, prevailed upon and induced the plaintiff 
 (who was then an infant of the age of fifteen years only or 
 thereabouts) to elope with him, and the said plaintiff did 
 in fact on or about the seventeenth day of September one 
 thousand eight hundred and thirty-eight, elope and inter- 
 marry with, and she is now the wife of the said defendant 
 James Edward Boyd. 
 
 14. In or about the month of May one thousand eight 
 hundred and forty, the said James Edward Boyd filed a 
 bill of revivor and supplement in the said causes in the 
 name of himself and of the said plaintiff as co-plaintiffs 
 against the said Mary Ann Amelia Healey, James Jagger, 
 and Jane his wife, and George Richard Healey, as the 
 defendants thereto, but that by an order of his Lordshj.p, 
 the late Master of the Rolls, the name of the said James 
 Edward Boyd was ordered to be struck out as a plaintiff in 
 the said last-mentioned suit, and the said James Edward 
 Boyd was made a defendant thereto. 
 
 15. The plaintiff has had issue by the said James Edward 
 Boyd, one child and no morej namely, the defendant James 
 Charles Boyd, who is an infant of the age of thirteen years 
 or thereabouts. 
 
 16. In or about the month of February one thousand 
 eight hundred and forty-one, the plaintiff was compelled, 
 in consequence of the misconduct and ill-treatment of the 
 said James Edward Boyd, to quit his residence, and she has 
 since the said month of February one thousand eight hun- 
 dred and forty-one lived, and she is now living separate and 
 apart from said James Edward Boyd, and the said James 
 Edward Boyd has not since the said last-mentioned period 
 maintained and supported, and does not now maintain or 
 
 A A 2 
 
356 PLEADINGS. 
 
 contribute in any manner whatsoever to the maintenance 
 and support, or education of her said child, the said James 
 Charles Boyd. 
 
 17. On or about the twenty-ninth of November one 
 thousand eight hundred and forty-four, an indenture of 
 settlement between the said James Edward Boyd and the 
 plaintiff of the one part, and the defendants, William Lewis 
 and George Nutting of the other part, was duly made and 
 executed by and under the order and direction of this 
 Court, whereby all or such part or parts as were of freehold 
 and not of copyhold or customary tenure of the said farm 
 called " Newhouse Farm," consisting of a farm-house, barn, 
 and other buildings, together with about one hundred acres 
 of land, including about four acres of woodlands, and a 
 small garden, with the ruins of a cottage in the same, con- 
 sisting of a brick chimney let with- the said farm, to which 
 it adjoins, then in the occupation of William Prichard, and 
 all or such part or parts as were of freehold and not of copy- 
 bold or customarj' tenure of the said farm, called Flaundon 
 Farm, consisting of a farm-house, barns, and other buildings, 
 together with about eighty acres of land, formerly in the 
 occupation of James Mailes, and then in the occupation of 
 one Mr. Sidwell ; and also of all that messuage and land 
 situate at Penvis Green, in the parish of Watford, in the 
 county of Hertford, consisting of a house, and buildings, 
 and stable, together with about six acres of land in the 
 occupation of the said James Jagger, together with -all 
 rights, members, and appurtenances whatsoever, to the said 
 hereditaments and premises, or any part thereof, belonging 
 or appertaining, and all other (if any) the freehold here- 
 ditaments and premises of, or to which the said James 
 Edward Boyd, "and the plaintiff, his wife, in right of the 
 plaintiff, were seised or entitled for any estate of freehold 
 at law or in equity; and also all such equitable estate or 
 interest in any copyhdld or customary hereditaments of or 
 to which the said James Edward Boyd and the plaintiff in 
 right of the plaintiff were seised or entitled as the said 
 James Edward Boyd might grant or demise without for- 
 feiture or liability to forfeiture, and the reversion and rever- 
 sions, remainder and remainders yearly, and other rents, 
 issues, and profits thereof, were demised, or were expressed 
 or intended to be demised unto the said William Lewis and 
 George Nutting, their execiators, administrators, and assigns, 
 for the term of ninety- nine years, if the said James Edward 
 
PLEADINGS. 
 
 357 
 
 Boyd should so long live upon the trusts thereinafter de- 
 clared, and the said James Edward Boyd, by said indenture 
 of settlement also for himself, his heirs, executors, and ad- 
 ministrators, covenanted at the request of the said William 
 Levfis and George Nutting, their executors, administrators 
 and assigns, but at the expense of the said trust estate, 
 effectually to surrender into the hands of the lords or 
 ladies of the respective manors of which the premises were 
 respectively holden, all that cottage and garden situate at 
 Chipperfield Dell, in the parish of Watford, in the said 
 county of Hertford, in the occupation of Mark Brown, and 
 all such part or parts as were of copyhold or customary 
 tenure, of and in all the other farms, lands, messuages, and 
 hereditaments, thereinbefore particularly mentioned, and of 
 which the freehold parts were thereinbefore granted arid 
 demised, and air other (if any) the copyhold or custo- 
 mary hereditaments, of or to which said James Edward 
 Boyd and the plaintiff in right of the plaintiff were seised 
 or entitled at law, or in equity, or so much of the said copy- 
 hold or customary premises as were not thereinbefore 
 effectually granted and demised, with the appurtenances 
 thereunto belonging, to the said William Lewis and George 
 Nutting their executors, administrators and assigns, for and 
 during the life of the said James Edward Boyd, to the 
 intent that the said William Lewis and George Nutting 
 their executors, administrators or assigns, should be ad- 
 mitted tenants of the said hereditaments and premises, to 
 hold the same respectively at the will of the lord'^or lady 
 according to the custom of the said manors, during the life 
 of the said James Edward Boyd, upon the trusts therein- 
 after declared concerning the same, and that until such 
 surrender, as aforesaid, should be made, the said James i 
 Edward Boyd should stand and be seised of, and interested, 
 in all and singular the said copyhold, hereditaments and 
 premises, upon trust for the said William Lewis and George 
 Nutting their executors administrators and assigns, as 
 such trustees as aforesaid, and the said James Edward Boyd 
 by the said indenture assigned the leasehold estate in the 
 said indenture particularly mentioned, and all other (if 
 any) the leasehold estate, of which the said James Edward 
 Boyd and the plaintiff were possessed or entitled, in right 
 of the plaintiff' to the said William Lewis and George 
 Nutting their executors administrators and assigns, for the 
 term or terms then existing therein, upon the trusts there- 
 inafter declared ; and it is by the said indenture declared. 
 
358 PLEADINGS. 
 
 that the said William Lewis and George Nutting their 
 executors administrators and assigns, should stand and be 
 possessed of the said estate or interest so demised, cove- 
 nanted to be surrendered, and assigned to them respectively, 
 or intended so to be upon certain trusts for the benefit of the 
 plaintiff, for her sole and separate use during her life, and 
 after the plaintiff's decease, for the benefit of the issue of the 
 plaintiff by her present or any future marriage, with certain 
 limitations over for the plaintiff's benefit in default of such 
 issue, as by the said indenture will appear. 
 
 18. Shortly after the death of the said testator George 
 Healey, the said George Richards Healey entered into the 
 possession, or into the receipt of the rents and profits of the 
 said estates, so 'devised to, or in trust for him by the said 
 will of the said George Healey, for his life as aforesaid, 
 being the estates in the said will, secondly mentioned, and 
 he continued in such possession, or receipt, down to the 
 year one thousand eight hundred and forty, or thereabouts. 
 
 19. In or about the year one thousand eight hundred 
 and forty, the said James Jagger prevailed upon the said 
 George Richards Healey, to convey and assign to him the 
 life interest of him, the said George Richards Healey, in 
 the aforesaid estates so devised to him as aforesaid. 
 
 20. In or about the month of April one thousand eight 
 hundred and fifty-two, the said George Richards Healey 
 departed this life without ever having had any issue, and 
 leaving the plaintiff his heir-at-law and also the heir-at- 
 law of the said testator George Healey, and of the said 
 Luke Healey George Healey. 
 
 21. Shortly after the death of the said George Richards 
 Healey, the plaintiff, applied to and requested the said 
 James Jagger, and Jane his wife, to let the plaintiff into 
 the possession, or into the receipt of the rents and profits 
 of the said estates so devised to the said George Richards 
 Healey, for his life as aforesaid, but they refused so to do, and 
 they pretended and alleged that the said George Richards 
 Healey was tenant in tail of the said estates and premises, 
 and they alleged that, by an indenture dated the first day 
 of August one thousand eight hundred and forty, and 
 made, or expressed to be made, between the said George 
 Richards Healey, of the one part, and the said James 
 Jagger, of the other part, the said George Richards Healey 
 barred the said entail, and that by the said indenture, or by 
 his will, or by some other document in writing, the said 
 
PLEADINGS. 359 
 
 George Richards Healey devised or gave the said estates 
 and premises to the said James Jagger and Jane his wife, 
 or one of them, for their, his, or her own absolute use and , 
 benefit. 
 
 2'2. After some discussion between the parties, and their 
 solicitors, ■ the said James Jagger, and Jane his wife, pro- 
 posed, on payment of two thousand pounds to the said 
 James Jagger, by the plaintiff, to give up the possession of 
 the said estates to the plaintifiF, subject only during the life 
 of the said Jane Jagger, to the annuity of twenty-six 
 pounds, being one moiety of the aforesaid annuity of fifty- 
 two pounds, and the allowance for wood and coals in the 
 said will mentioned, agreed*to be commuted at four pounds 
 per annum. 
 
 23. Having, since her infancy, been involved in'disputes 
 and legal proceedings relating to the estates so devised to 
 her said late father Luke Healey Geprge Healey fpr his 
 life as aforesaid, in consequence of which disputes and legal 
 proceedings, nearly the whole of the said last-mentioned 
 estates have been exhausted, and spent, and being desirous 
 (if possible), to prevent all further litigation, the plaintiff, 
 who had been advised and believed that she was absolutely 
 entitled to an equitable estate, in fee simple, in possessipn 
 in the estates and premises so devised unto or in trust for the 
 said George Richards Healey, for his life as aforesaid, was 
 prevailed upon and induced, in order to avoid all legal 
 proceedings to consent to the said proposal, and on or 
 about the twenty-seventh day of August one thousand 
 eight hundred and fifty-two, it was agreed between the 
 plaintiff and the said James Jagger, and Jane his wife, that 
 the said estates so devised to or in trust for the said George 
 Richards Healey, as aforesaid, should be conveyed and 
 assured by the said James Jagger, and Jane his wife, unto 
 two trustees, to be named by the plaintiff (subject to the 
 said annuity of twenty-six pounds per annum, and the said 
 allowance for wood and coals), upon trust to raise by sale or 
 mortgage the sum of two thousand pounds, to be paid to 
 the said James Jagger, with interest thereon from the date 
 of the said agreement at five pounds per cent, per annum, 
 in full satisfaction of all estate, right, claim, title, and 
 interest (if any), of the said Jagger, and Jane his wife, or 
 either of them, in, to, or out of the premises, and every part 
 thereof, and (subject as aforesaid), in trust for the plaintiff, 
 in fee for her sole and separate use, independently of the 
 said James Edward Boydj and that the rents and profits of 
 
360 PLEADINGS. 
 
 the said testator, which had accrued, or should accrue, du6 
 since the death of the said George Ricliards Healey, should 
 (subject to such proportion thereof as the said James Jagger 
 was entitled to, as the assignee of the life interest of the 
 said George Richards Healey), be paid on the execution of 
 such conveyance and assurance as aforesaid to the' said trus- 
 tees for the separate use of the plaintiff. 
 
 24. The said James Jagger, and Jane his wife, after- 
 wards required the concurrence of the said James Edward 
 Boyd to the said agreement, but the said James Edward 
 Boyd refused to join or concur in the said proposal or 
 agreement, except on being paid the sum of seven hundred 
 pounds, and the said James Jagger, and Jane his wife, 
 insisting that the said James Edward Boyd should be a 
 party to the proposed conveyance or assurance, the plaintiff 
 was at length (although most reluctantly) prevailed upon to 
 assent to the said sum of seven hundred pounds being also 
 raised by sale or mortgage of the said estates, and paid to 
 the said James Edvirard Boyd, provided the said conveyance 
 or assurance was executed at once, and the draft of a deed 
 to carry into effect the aforesaid arrangement was accord- 
 ingly prepared, and with the exception of the description 
 of the premises was approved of on behalf the said James 
 Jagger and Jane his wife, and also on behalf of the 
 plaintiff, and the plaintiff would, for the considerations 
 aforesaid, have been ready and willing on her part, to 
 carry into effect the said arrangement if it could have been 
 lawfully done. 
 
 25. The plaintiff has recently been advised, that the said 
 estates so devised to or in trust for the said George Richards 
 Healey as aforesaid being the said estates in the said will 
 secondly mentioned, are included and comprised, or are 
 intended to be included and comprised in the said indenture 
 of settlemenft of the twenty-ninth of November one thousand 
 eight hundred and forty-four, but the said James Edward 
 Boyd insists on the contrary. 
 
 26. The plaintiff charges that even if the said George 
 Richards Healey ever did make or execute any such deed, 
 will or other document as alleged by the said James Jagger 
 and Jane his wife, that the same could not and cannot 
 deprive the plaintiff or those claiming under her of her or 
 their estate and interest in the premises under or by virtue 
 of the said will of the plaintiff's grandfather the said George 
 Healey. 
 
PLEADINGS. 36 1 
 
 27. The plaintiff submits and humbly insists, that in the 
 events which have happened she is entitled to have the 
 said estates so devised to or in trust for the said George 
 Bichards Healey as aforesaid (subject only as in the said 
 will is mentioned) conveyed and limited to or in trust for ' 
 the plaintiff for her own absolute use and benefit, or at all 
 events to -have the same properly settled on herself and her 
 issue. 
 
 28. The said James Jagger and Jane his wife or one of 
 them are or is now in the possession or in the receipt of the 
 rents and profits of the said last-mentioned estates, and they 
 threaten and intend to applj- part of such rents and profits 
 to their own use, and other parts of such rents and profits 
 they threaten to pay to the said James Edward Boyd and 
 the plaintiff humbly submits, that they ought to be restrained 
 from so doing by the order and injunction of this Honour- 
 able Court, and that some proper person ought to be 
 appointed to receive collect and get in the rents and profits 
 of the said estates. 
 
 29. The said James Charles Boyd William Lewis and 
 George Nutting respectively claim some interest in the 
 premises, and plaintiff is advised that they are necessary 
 parties to this suit, and the defendant William Lewis is now 
 residing abroad and out of the jurisdiction of this Court. 
 
 PRAYER. 
 
 The plaintiff prays as follows: 
 
 I. That an account may be taken by and under the 
 direction of this Honourable Court of all the rents and 
 profits of the said estates and premises so devised by 
 the said will of the said testator George Healey, unto 
 or in trust for the said George Richards Healey as 
 aforesaid, which have come to the hands of, or been 
 received by the said James Jagger and Jane his wife 
 or either of- them, or by any other person or persons 
 by their or either of their order, or for their or either 
 of their use since the death of the said George Richards 
 Healey. 
 
362 
 
 PLEADINGS. 
 
 2. That the said estates and premises so devised unto or 
 in trust for the said George Richards Healey as afore- 
 said, may be ordered to be conveyed and limited to or 
 in trust tor the plaintiiF for her own sole and absolute 
 use and benefit, or may be declared to be comprised 
 and included in the said indenture of settlement of the 
 twenty-ninth of November one thousand eight hundred 
 and forty-four, and (if necessary and proper) may now 
 be settled on the plaintiff and her issue to the exclu- 
 sion of the said James Edward Boyd, or otherwise in 
 such manner as this Honourable Court may direct. 
 
 3- That the title-deeds relating to the said estates and 
 premises may be deposited in the record and writ oflSce; 
 or in some other proper place for. safe custody. 
 
 4. That some proper person may be appointed to receive 
 and get in the rents and profits of the said estates and 
 premises so devised unto or in trust for the said George 
 Richards Healey as aforesaid, and that in the mean- 
 time the said James Jagger and Jane his wife may be 
 restrained by the order and injunction of this Honour- 
 able Court from getting in or receiving or otherwise 
 interfering with the said rents and profits or any part 
 thereof. 
 
 5. That all proper orders may be made, and directions 
 given for the purposes aforesaid. 
 
 6. That the plaintiff may have such further or other 
 . relief as the nature of this case may require. 
 
 The defendants to this Bill of Complaint are, 
 
 James Jagger and Jane his wife, 
 James Edward Boyd, 
 James Charles Boyd, 
 George Nutting, and 
 William Lewis. 
 
 (Name of Counsel). 
 
 R. W. Elliot Fobster. 
 
PLEADINGS. 363 
 
 Supplemental Bill to bring new Trustees of a Will before 
 the Court. 
 
 In Ckancery. 
 
 Walter Joseph Hitchcock . - - Plaintiff. 
 
 John Ward Spencer, Williani Thomas Red- 
 fern, Isaac Daniel, Isabella Hitchcock (the 
 wife of the plaintiff), and Maria Isabella 
 Adney Hitchcock, spinster (an infant) Defendants. 
 
 SUPPLEMENTAL BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 ■ Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship Walter 
 Joseph Hitchcock, of Taunton, in the county of Somerset, 
 gentleman, the above-named plaintiff, as follows : 
 
 1. [State original bill by the plaintiff and the said Isabella 
 Hitchcock his wife and their daughter Maria Isabella 
 Adney Hitchcock spinster, an infant, by the plaintiff as her 
 next friend, which was afterwards amended, against Wil- 
 liam Richards Hitchcock, Betty Hitchcock widow, John 
 James Spencer, Joseph Houghton Spencer, Amelia Eliza- 
 beth Spencer spinster, Mary Hitchcock widow, Henry 
 Badcock, John Ward Spencer and Rosina his wife, William 
 Richards Bond, Frederick Hamilton Hitchcock, Sydney 
 William Hitchcock, Howard Hitchcock and George Ernest 
 Hitchcock, setting forth the will of Joseph Hitchcock, and 
 seeking administration of real and personal estate.] 
 
 2. All the defendants to the said original bill oo being 
 served with process appeared thereto and answered the 
 same, and the said defendant William Richards Hitchcock 
 by his answer admitted the validity of the said will and the 
 
364 PLEADINGS. 
 
 sufficiency of the said testator's personal estate to answer 
 his debts and funeral and testamentary expenses, and also 
 admitted that the said testator's real estates specifically 
 devised as aforesaid were adequate for the satisfaction of 
 the legacies and annuities thereupon charged- by the said 
 testator's will as aforesaid. 
 
 3. An order was made in the said suit on the twenty- 
 third day of February one thousand eight hundred and 
 fifty-two whereby it was referred to the Master of this 
 Court in rotation to inquire and state what children there 
 were or had been of the plaintiff and whether or not living 
 at the said testator's decease or born since his decease, and 
 the ages of such of the said children as were living at the 
 said testator's decease or since born, and if the said Master 
 should find that all such children then living and the 
 personal representatives of such (if any) as survived the 
 said testator and died after attaining the age of twenty-one 
 years, and all other necessary parties to this suit, were 
 before the Court, it was ordered that the said Master 
 should take an account of the dpbts and liabilities affecting 
 the personal estate of the. said testator, and should compute 
 interest on such of the said debts and liabilities as carried 
 interest, and should issue the usual advertisements for 
 creditors, and that the said testator's personal estate should 
 be applied in payment and satisfaction of such debts and 
 liabilities, and any of the- parties were to be at liberty to 
 apply to this Court as there might be occasion, and that 
 the costs of both the motions on which the said order was 
 made should be costs in the cause. 
 
 4. In pursuance of the order last aforesaid the Master 
 made his report bearing date the twelfth day of January 
 one thousand eight hundred and fifty-three, which hath 
 since been absolutely confirmed, and thereby found that 
 there was only one child of the plaintiff living at the said 
 testator'sdecease, and that the plaintiff had had no child born 
 since the said testator's decease, and that the said child of 
 the said plaintiff was the said Maria Isabella Adney Hitch- 
 cock, and that she was then of the age of four years and 
 upwards, and that he had caused advertisements to be 
 published in the London Gazette and other public papers 
 for persons claiming in respect of debts and liabilities 
 affecting the said testator's personal estate, to come in 
 before the said Master and prove their debts and claims by 
 the eighteenth day of October one thousand eight hundred 
 
PLEADINGS. 365 
 
 and fifty-two, or that in default thereof they would be 
 excluded the benefit of the said order, but that no person 
 had come in before the said Master or proved any debt or 
 claim. 
 
 5. -The said defendants Henry Badcock and William 
 Richards Bond having by their answer disclaimed the 
 trusts of the said will, an order was made in the said suit 
 on the twenty-fifth day of March one thousand eight 
 hundred and fifty-two, on the petition of the defendants 
 Betty Hitchcock and William Richards Hitchcock, that the 
 defendant John Ward Spencer as the continuing trustee of 
 the said will should be at liberty to propose to the said 
 Master one or more person or persons to be trustee or 
 trustees of the said testator's will, according to the discretion 
 given by the said will, and in case the said John Ward 
 Spencer should on or before the seventh day of May one 
 thousand eight hundred and fifty-two make such proposal 
 to the said Master, it was referred to the said Master to 
 entertain the same, and if he should approve of such 
 person or persons to appoint the same accordingly. 
 
 fi. In pursuance of the order last aforesaid ' the said 
 
 Master made his report bearing date the twenty-third day 
 
 of August one thousand eight hundred and fifty-two, 
 
 whereby he found that the said defendant John Ward 
 
 Spencer had proposed before him the said Master the 
 
 Reverend William Thomas Redfern of Taunton Saint 
 
 James, in the county of Somerset clerk, and Isaac Daniel 
 
 of Taunton Saint Mary Magdalene in the same county 
 
 surveyor, two of the above-named defendants hereto, as fit 
 
 and proper persons to be appointed trustees of the said 
 
 testator's will in the place and stead of the said defendants 
 
 Henry Badcock and William Richards Bond, and that the 
 
 said William Thomas Redfern and Isaac Daniel had by 
 
 writing under their hands respectively consented to become 
 
 such trustees, and that he the said Master approved of the 
 
 said William Thomas Redfern and Isaac Daniel as fit and 
 
 proper persons to be trustees of the said will in the room of 
 
 the said Henry Badcock and William Richards Bond, and 
 
 thereby appointed them such trustees accordingly, and that 
 
 he had allowed the deeds mentioned in his report as a 
 
 proper conveyance and assurance of the trust estate and 
 
 premises to the said John Ward Spencer jointly with the 
 
 said William Thomas Redfern and Isaac Daniel. 
 
366 
 
 PLEADINGS. 
 
 7. The deeds in the said report mentioned, and bearing 
 date respectively the twenty-third day of August one 
 thousand eight hundred and fifty-two and the twenty-fourth 
 day of August one thousand eight hundred and fifty-two, 
 have been executed by all parties thereto, and the said 
 defendants John Ward Spencer William Thomas Redfern 
 and Isaac Daniel are now the trustees of the real estates by 
 the said testator devised in trust as aforesaid. 
 
 8. By an order made in the said suit on the eighth day 
 of May one thousand eight hundred and fifty-two, the said 
 original bill was dismissed with costs, as against the said 
 defendants Henry Badcock and William Richards Bond. 
 
 9. By the ways and means aforesaid the said suit became 
 and was defective, and the said William Thomas Redfern 
 and Isaac Daniel became and are necessary parties thereto. 
 
 10. Under the circumstances hereinbefore appearing the 
 said annuity of one hundred and fifty pounds, by the said 
 will bequeathed as aforesaid, is now payable to the plaintiiF 
 as he is advised. 
 
 11. The plaintiff therefore charges that the said defend- 
 ants John Ward Spencer William Thomas Redfern and 
 Isaac Daniel ought to be decreed to pay the same annuity 
 accordingly, and the arrears thereof, to the plaintiflF, out of 
 the rents and profits of the said hereditaments and premises 
 so charged therewith as aforesaid. 
 
 PRAYER. 
 
 The plaintiff prays as follows : 
 
 1. That this bill may be taken as supplemental to the 
 said original bill. 
 
 2. That the defendants John Ward Spencer William 
 Thomas Redfern and Isaac Daniel, as such trustees as 
 aforesaid of the will of the said testator Joseph 
 Hitchcock, may be decreed to pay the said annuity of 
 one hundred and -fifty pounds, and all arrears thereof, 
 unto the plaintiff, out of the said lands and heredita- 
 ments so charged therewith as aforesaid. 
 
PLEADINGS. 3g^ 
 
 3. That the plaintiff may have such further or other 
 rehef as the nature T)f the case may require. 
 
 Names of defendants. 
 
 The defendants to this bill of complaint are, 
 
 John Ward Spencer, 
 
 The Reverend William Thomas Redfern, clerk, 
 
 Isaac Daniel, 
 
 Isabella Hitchcock (the wife of the plaintiff) atid 
 
 Maria Isabella Adney 'Hitchcock, spinster. 
 
 (Name of Counsel). 
 
 Harris Prendergast. 
 
 Bill of Discovery in aid of defence to Action, (a) 
 In Chancery. 
 
 Vice Chancellor Wood. 
 
 Charles Fitzgerald - - Plaintiff. 
 
 James Philip Bult and George Frederick 
 
 Bult - . _ Defendants. 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Oanworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 (a) See the case of the South Eastern Railway Company v. The 
 Electric Telegraph Company, as to the frame of the prayer of a Bill 
 of Discovery. There were at the end of the prayer these words, "or 
 that such other order may be made, as the nature of the case may 
 require." Upon a motion to dismiss the bill for want of prosecution, 
 on the ground that it was a bill for relief and not for discovery only, 
 the Master of the Bolls held, that it was only a bill for discovery, but 
 as the form of the prayer was unusual, he refused the motion without 
 costs. His Honor also observed upon the preceding " Bill of Com- 
 plaint" as irregular. 22 L. T. 94. 
 
S68 
 
 PLEADINGS. 
 
 Humbly complaining, shovveth unto his Lordship Charles 
 Fitzgerald, of 52, Regent Street, in the county of Middle- 
 sex, the above-named plaintiff, as follows : — 
 
 1. The defendants have lately commenced an action at 
 lavv against the plaintiff, and have delivered particulars of 
 demand in such action whereby it appears that they seek 
 thereby to recover from the plaintiff in such action, the 
 sum of eight hundred and thirty pounds four shillings, for 
 monies lent by them to the plaintiff, and money paid by 
 them for the plaiptiff, and, on his account, in and between 
 the months of January one thousand eight hundred and 
 forty-eight, and December one thousand eight hundred 
 and forty-nine. 
 
 2. The defendants do not in the said particulars, give 
 the plaintiff credit for any sums received on his account, 
 but in fact, in and pl-eviously to the year one thousand 
 eight hundred and forty-nine, they received considerable 
 sums of money on account of the plaintiff, and they de- 
 livered to the plaintiff an account of such receipts, and of 
 their alleged payments on his account, up to the close of 
 the year one thousand eight hundred and forty-nine, where- 
 by it appeared that the sura of three hundred and twenty- 
 nine pounds twelve shillings and eightpence, and no more, 
 was due to them from the plaintiff up to that time. 
 
 3. The defendants continued to receive various sums of 
 money on behalf of the plaintiff, and entered the same to 
 his credit in an account current, containing as the first 
 item on the debit side, -the said balance of three hundred 
 and twenty-nine pounds twelve shillings and eightpence, 
 and delivered such account to plaintiff, and the sums so 
 received by the defendants, and so credited in such account, 
 greatly exceeded the said balance of three hundred and 
 twenty-nine pounds twelve shillings and eightpence, and 
 by the means aforesaid, all the sums mentioned in the said 
 particulars of demand have been repaid to the defendants, 
 but the defendants do not, in the said action, give the 
 plaintiff credit for any of the sums so received by them, 
 and the plaintiff is unable safely to proceed to a trial of 
 the said action without the discovery hereby sought 
 
 4. About the middle of the year one thousand eight 
 hundred and fifty, the plaintiff placed in the hands of the 
 defendants for safe custody, six hundred shares in the 
 Dendre Valley Railway and Canal Company, which were 
 the property of the plaintiff, and the defendants undertook 
 
PLEADINGS. 369 
 
 to keep the same for the plaintiff and endorsed them with 
 his name, and put them in a desk of the defendants. 
 
 5. The plaintiiF subsequently applied to the defendants 
 for such shares, when they informed him that they had sold 
 the same and retained the proceeds in discharge of monies, 
 which they alleged to be due to them from the plaintiff, 
 but they have never given the plaintiff any account of the 
 proceeds of such sale or delivered to him any account 
 crediting him therewith, nor have they credited the same 
 in the said particulars of demand, or otherwise in the said 
 action brought by them against the plaintiff. 
 
 6. The plaintiff has brought an action against the de- 
 fendants to recover the value of the said shares in the 
 Dendre Valley Railway and Canal Company, and the 
 defendants have pleaded in the said action, that the said 
 shares were delivered to them for the purpose of sale, and 
 that they have sold and accounted for the proceeds thereof 
 to the plaintiff. 
 
 7. The defendants ought to set forth what sum is justly 
 due to them from the plaintiff, and the account on the ba- 
 lance of which they claim such sum to be due, and also a 
 copy of the account between them and the plaintiff, as the 
 same was originally entered in the said defendants' books 
 of account, and whether any, and what alterations have 
 since been made in, or additions made to such account, 
 and when and for what purpose such additions and altera- 
 tions were made, and a copy of all entries in their books 
 relating to any payments actually made by them to or on 
 account of the plaintiff distinguishing the book and page of 
 the book at which such entry is made, and when, and for 
 what purpose each such entry was made, and a list or 
 schedule of all checks, or check-ends in their possession, or 
 power relating to any payments actually made by them on 
 account of the plaintiff, and also when, and by whom they 
 were authorized to sell the said shares in the said Dendre 
 Valley Railway and Canal Company, and when, and to 
 whom, and for how much they actually sold the same, and 
 when, and from whom they received the proceeds thereof, 
 and to what amount and how such proceeds were at the 
 time entered by them in their books, and a copy of all 
 accounts in their books in any way relating thereto. 
 
 8. The defendants respectively had formerly and have 
 now in their possession, custody or power, or in that of 
 their solicitor or agent, divers accounts, books of account, 
 
 B B 
 
370 PLEADINGS. 
 
 day books, bill books, post books, memorandum books, 
 other books, receipts, vouchers, brokers' notes, cheeky 
 check-ends, brokers' pass books, memoranda and docu- 
 ments, and divers copies of and extracts from such several 
 particulars, and other papers and vifritings relating to the 
 accounts between them and the plaintiff, and otherwise 
 connected with mentioning, referring, or relating to or 
 showing the truth of the several matters herein mentioned, 
 which they refuse to produce. 
 
 PRAYER. 
 
 The plaiptiff prays as follows : 
 
 1. That the defendants may make a full discovery of the 
 several matters aforesaid, and may produce and leave 
 with the clerk of records and writs, in whose division 
 this cause is, such of the several aforesaid documents 
 as are in their possession or power, for the plaintiff's 
 inspection in the usual manner. 
 
 2, That the defendants may in the meantime be re- 
 strained by the order and injunction of this Honour- 
 able Court from prosecuting the aforesaid action, and 
 from commencing any other action against the plaintiff 
 in respect of the matters aforesaid. 
 
 Names of defendants. 
 The defendants to this Bill of (Complaint are, 
 
 James Philip Bult, 
 George Frederick Bult. 
 
 (Name of Counsel). 
 
 J. V. Prior. 
 
 Cross Bill. 
 In Chancery. 
 
 Master of the Rolls. 
 
 John Jones . _ _ Plaintiff. 
 
 James Willson William Pearson Sarah 
 Stockley William Leslie and Abigail 
 his wife - - - Defendants 
 
PLEADINGS. 371 
 
 BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsej, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship John 
 Jones, of the Oaks, near Carsharlton, in the county of 
 Surrey, esquire, the above-named plaintiff, as follows : 
 
 1. The defendant Sarah Stockley, has lately filed a bill 
 in this Honourable Court against the plaintiff, thereby 
 stating in paragraph one, the will of Josiah Wallis deceased, 
 whereby he bequeathed certain stocks funds and property 
 to John Wilkinson and WiUiam Salter upon certain trusts, 
 and in paragraph two, that the said testator in the events 
 which happened, died intestate as to the stocks and funds 
 and other property in the said bill mentioned or referred 
 to, and that EHza Pile, as the sole legal representative of 
 the testator's widow Sarah Wallis, became entitled to one 
 moiety thereof, and that the next of kin of the said testator 
 living at the time of his death, and their legal personal 
 representatives, became entitled to the other moiety thereof 
 according to the statute of distributions ; and stating in 
 paragraph three, that such next of kin consisted of the seven 
 individuals following (that is to say) Joseph Wilison, Mary 
 Willson, Catherine Wilison, Abigail Wilison, William Will- 
 son, James Wilison, and Elizabeth Washer Wilison, each of 
 whom became entitled to one equal seventh part or share 
 of and in such moiety ; and stating in paragraph four, that in 
 August one thousand eight hundred and thirty-three, the 
 plaintiff John Jones was duly appointed a trustee of the 
 said trust stocks and funds in the place of John Wilkinson; 
 and stating in paragraph five, that by an account which was 
 stated in or about the month of February one thousand 
 eight hundred and thirty-four by the said William Salter 
 and the plaintiff John Jones, it appeared that each of such 
 seventh parts or shares then amounted to the sum of four 
 hundred and forty-three pounds thirteen shillings and five- 
 pence ; and stating in paragraph six, thai six of such seventh 
 parts or shares were duly paid by the said William Salter 
 
 bb2 
 
PLEADING*. 
 
 ■ and the plaintiff John Jones, into whose names such stocks 
 and funds had been duly transferred as the trustees thereof^ 
 
 .;to the several parties so as aforesaid entitled thereto re- 
 spectively ; and stating in .paragraph seven, that one of 
 
 "^ such Seventh parts or shares, that is to say the seventh part 
 or share to which the said Elizabeth Washer Willson 
 became so as aforesaid entitled, was never paid to her by 
 reason of her having been in and previously to the said 
 year one thousand eight hundred and thirty-four, and 
 thenceforth until the time of her decease, a person of un- 
 sound mind ; and stating in paragraph eight, that the said 
 Elizabeth Washer Willson departed this life in the month 
 of November one thousand eight hundred and fifty-one 
 intestate, leaving the said Sarah Stocfcley the plaintiff in 
 the said suit, one of her next of kin her surviving, and 
 that since her decease, letters of administration of her 
 estate and effects have been duly granted by and out of the 
 Prerogative Court of the Archbishop of Canterbury to the 
 defendant William Pearson ; and stating .in paragraph 
 nine, that the said William Salter died in the year one 
 thousand eight hundred and forty, leaving the plaintiff 
 John Jones his co-trustee him surviving ; it is by the said 
 bill prayed, that the -personal estate of the said intestate 
 Elizabeth Washer Willson, including therein the said sum 
 of four hundred and forty-three pounds thirteen shillings 
 and fivepence, together with interest thereon from the first 
 day of March one thousand eight hundred and thirty-four 
 till the time of payment, might be administered in this 
 Court, and for that purpose that all proper "directions might 
 be given, inquiries made, and accounts taken, that the 
 defendant William Pearson and the plaintiff John Jones 
 might be decreed to pay the costs of the suit, and that the 
 plaintiff might have such further or other relief as the 
 nature of the case might require. 
 
 2. The allegations in the first six paragraphs of the said 
 bill are substantially true, except that each of the one- 
 seventh shares mentioned in the fifth paragraph, was, after 
 deducting legacy duty, only four hundred and thirty-two 
 pounds eleven shillings and sevenpence. 
 
 3. The six one-seventh parts and shares, mentioned in 
 the sixth .paragraph of the said bill were paid as follows, 
 videlicet: one thereof to the defendant James Willson 
 in his own right, and another to him as administrator of 
 Jbsiah Willson, one thereof to Ann Willson as adminis- 
 
PLEADINGS. 373 
 
 tratrix of William Willson, one thereof to John Pearson 
 the husband of the said Catherine Willson, and the father 
 of the defendants William Pearson and Sarah Stockley, in 
 rjght of his said wife, anothef thereof to the defendant. 
 Abigail Leslie then Abigail Sinclair, and the other thereof 
 to the said Mary Willson. 
 
 4. Elizabeth Washer Wilson the only other next of kin, 
 was of unsound mind, though not found so by inquisition, 
 and the said James Willson being her brother and guardian 
 ad litem,, it was arranged that her share in the said monies 
 should be invested for her benefit in his name, or according 
 to his direction, and the safne was accordingly by the direc- 
 tion or with the assent of the said' James Willson paid to 
 his solicitor Mr. Yallop, for the purpose of being so in- 
 vested, in the month of May one thousand eight hundred 
 and thirty-four, and the said James Wilson executed an 
 indenture of release, dated the first day of March one 
 thousand eight hundred and thirty-four, whereby after 
 reciting (inter alia) that the said Elizabeth Washer Willson 
 had become of unsound mind, and that the said James 
 Willson was her guardian duly appointed by this Honour- 
 able Court in the said suit, and that as such guardian he 
 was entitled to receive her one-seventh share or proportion 
 of such moneis, it was among other things witnessed, that 
 the said James Willson acknowledged the receipt of the said 
 seventh part or share to which he is therein stated to be 
 entitled as such guardian of the said Elizabeth Washer 
 Willson, and did thereby acquit release exonerate and 
 discharge the said William Salter and the plaintiff John 
 Jones, and each of them, and each and every of their 
 executors administrators and assigns, of and from the 
 payment of the said seventh part or share, and all dividends 
 and interest thereof, and of and from all actions suits 
 claims and demands whatsoever, of him the said James 
 Willson and of all persons claiming under or in trust for 
 him, for or in respect thereof. 
 
 5. The said Elizabeth Washer Willson died, as in the sai^ 
 bill of the said Sarah Stockley mentioned, and she left her 
 brother and sister the said James Willson and Abigail 
 Leslie, and the defendants William Pearson and Sarah 
 Stockley, the children of her deceased sister, the said 
 Catherine Pearson, her only next of kin her surviving. 
 
 6. The letters of administration in the' said bill men- 
 tioned to have been granted of the estate and effects of the 
 said Eliizabcth Washer Willson to the said William Pearson, . 
 
374 PLEADINGS. 
 
 were so granted to the said Wjlljam Pearson as the attorney 
 and for the use and benefit of the said James Willson, and 
 until he should duly apply for and obtain letters of adminis- 
 tration of the goods of the said deceased to be granted to 
 him. 
 
 7. The said Elizabeth Washer Willson died possessed of 
 and entitled to considerable personal property, other than 
 the said sum of four hundred and thirty-two pounds eleven 
 shillings and sevenpence. 
 
 8. The said defendants WiUiam Leslie and Abigail his 
 wife and William Pearsoti, threaten and intend to com- 
 mence a suit or institute proceedings against the plaintiff, 
 for recovery pf their interest in the said sum of four hundred 
 
 ..and' thirty-two pounds eleven shillings and sevenpence, 
 similar to the said bill so filed by the said Sarah Stockley. 
 
 9. If the plaintiff is under any liability either to the said 
 Sarah Stockley, or to the said William Leslie and Abigail 
 his wife and William Pearson, in respect of the said sum 
 of four hundred and thirty-two pounds eleven shillings and 
 sevenpence, then the share and interest of the said James 
 Wilson, in the estate of the said Elizabeth Washer Willson, 
 is liable to make good to her other next of kin their shares 
 thereof, and if the same be insufficient for the purpose then 
 the said James Willson is personally liable to make good 
 the same. 
 
 PRAYER. 
 
 The plaintiff prays as follows : 
 
 1. That so far as may be necessary this bill may be taken 
 as a cross bill to the suit so instituted by the said 
 Sarah Stockley, and that if the said Sarah Stockley 
 or the said William Leslie and Abigail his wife and 
 William Pearson, or any or either of them, are entitled 
 to recover anything from the plaintiff in respect of the 
 s^id sum of four hundred and thirty-two pounds eleven 
 shillings and sevenpence, the property of the said 
 Elizabeth Washer Willson, then that the share of the 
 said James Willson in the personal estate of the said 
 Elizabeth Washer Willson, may be made available for 
 the purpose of satisfying the demands of the said Sarah 
 Stockley William Leslie and Abigail his wife and 
 William Pearson, as far as the same will extend for 
 that purpose, and if the same shall be insufficient for 
 that purpose, then that -the deficiency may be made 
 good by the said James Willson personally. 
 
PLEADINGS. 375 
 
 2. 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, 
 
 James Willson, 
 William Pearson, 
 Sarah Stockley, 
 William Leslie and 
 Abigail his wife. 
 
 (Name of Counsel.) 
 
 J. V. Pmok. 
 
 Bill of Revivor and Supplement where the Defendant to the 
 original Bill died after appearance, hut before answer, 
 praying that the present Defendant {Administratrix of 
 the original Defendant) may answer the original Bill, as 
 well as the Supplemental Matter, (a) 
 
 In Chancery. 
 
 Master of the Rolls. 
 
 Edward Webster Whistler and George 
 Lashmer Whistler, Executors of the 
 Will of James Andrew Welch, de- 
 ceased . - _ Plaintiffs. 
 
 Martha Smith - - _ Defendant. 
 
 BILL OF REVIVOR AND SUPPLEMENT. 
 
 To the Right Honourable Edward Burtenshaw, Baron 
 St. Leonards, of Slaugham, in the county of Sussex, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, show unto his Lordship Edward 
 Webster Whistler of Fenchurch Street, in the city of Lon- 
 
 (a) The original Bill was filed under the old practice. 
 
376 PLEADINGS. 
 
 don wholesale grocer, and George Lashmer Whistler of 
 Fenchurch Street aforesaid wholesale grocer, executorS' of 
 the last will and testament of James Andrew Welch de- 
 ceased, the above-named plaintiffs, as follows : 
 
 1. The plaintiffs on or about the twentieth day of April 
 one thousand eight hundred and fifty-two, filed their origi- 
 nal bill of complaint in this Honourable Court, against 
 Thomas Smith late of Greenham near Newbury in the 
 county of Berks seedsman since deceased as defendant 
 thereto, thereby stating divers matters relating to certain 
 shares in the Blackwall Railway Company therein men- 
 tioned, namely, two hundred of such shares, part of two 
 hundred and fifty of such shares therein mentioned, actually 
 transferred by the above-mentioned James Andrew Welch 
 deceased, into the name of John Smith deceased therein 
 mentioned, and which transfer was registered as therein 
 mentioned, and relating to two hundred other shares in 
 the said company vested in the said James Andrew 
 Welch deceased, and the scrip certificates relating thereto 
 therein mentioned ; and thereby stating the transfer of the 
 said first-mentioned shares, and the deposit of the said scrip 
 certificates of the said other shares respectively, by the said 
 James Andrew Welch deceased, into the name of and in 
 the hands of the said John Smith deceased respectively, 
 by way of mortgage security for the sum of one thousand' 
 five hundred pounds and interest, as therein mentioned; 
 and stating the decease of the said John Smith intestate, 
 and the constitution of the said defendant Thomas Smith 
 by letters of administration his legal personal representa- 
 tive, and the death of the said James Andrew Welch, and 
 the constitution of the plaintiffs his personal representatives 
 and the executors of his will ; and stating the claim by the 
 said original defendant, nevertheless, to the said first-men- 
 tioned shares, namely those so transferred, as the absolute 
 property of the said John Smith deceased, and the sale and. 
 disposal of the same shares by the same defendant; and 
 further stating as therein stated, and praying, that the de- 
 fendant thereto might answer the premises, and that he 
 might make a full and fair discovery in the premises, and 
 that it might be by the decree of this Honourable Court 
 declared, that the said two hundred of the said two hundred 
 and fifty shares so transferred by the said James Andrew 
 Welch, deceased, into the name of John Smith deceased, 
 as in the said original bill in that behalf mentioned, were so 
 
PLEADINGS. 377 
 
 transferred by way of, and ought to stand as a mortgage and 
 security only to the said John Smith, for the sum of one 
 thousand five hundred pounds therein mentioned and 
 interest, namely, for the same sum and interest, for the se- 
 curity whereof the said two hundred other shares comprised 
 in the share certificates thereinbefore mentioned were so 
 deposited by the said James Andrew Welch deceased, in 
 the hands of the said John Smith deceased as therein 
 mentioned ; and that it might be in like manner declared 
 that the plaintiflfe, as such executors as aforesaid, were en- 
 titled to elect either to have restored to them the same two 
 hundred shares which were so transferred, or two hundred 
 other of the same or like shares in the said London and 
 Blackwall Railway Company, and to have such two hundred 
 shares transferred to them by the said defendant thereto, 
 upon the payment to him of what should be coming to him 
 on the account thereinafter prayed, or else that the said 
 defendant thereto should be charged and debited in ac- 
 count with the amount which should appear to have been 
 received by him from the sale of such two hundred shares as 
 thereinbefore in that behalf mentioned, with interest thereon 
 at and after the rate of five pounds per centum per annum 
 from the time or respective times of the same being so re- 
 ceived, and that a proper account might be decreed to be 
 taken of what was justly due and owing to the said de- 
 fendant thereto, as such administrator as aforesaid, in re- 
 spect of such sum of one thousand five hundred pounds and 
 interest, after giving credit to the said plaintiffs for what 
 should appear to have been received by the said defendant 
 thereto, or by the said John Smith deceased in his life- 
 time, for or in respect of dividends payable upon and in 
 respect of such two hundred shares, part of the said two 
 hundred and fifty shares so transferred as therein men- 
 tioned; and if the said plaintiffs should elect to take credit 
 for the money realized and received by the said defendant 
 thereto, in respect of the said two hundred shares so sold 
 and disposed of by him as therein mentioned, instead of 
 requiring such shares to be restored as aforesaid, then also, 
 after giving credit for such last-mentioned amount, with 
 interest from the time or respective times of the same being 
 received by the said defendant thereto, and that all other 
 proper accounts and inquiries might be decreed to be taken 
 and might be directed in the prcn)ises, and that the plain- 
 tiffs might be let in to redeem, in the proper form and 
 
378 
 
 FLEADINQS. 
 
 manner, as well the two hundred shares so transferred, as 
 the said share certificates so deposited as therein mentioned, 
 with all proper directions for the restitution and due vesting 
 thereof respectively to and in the said plaintiffs as such 
 executors as aforesaid, and all other proper directions in the 
 premises, the said plaintiffs being ready and willing, and 
 thereby offering, to pay what (if anything) should be found 
 due to the said defendant thereto on taking the proper ac- 
 counts in the premises, and that if in taking the aforesaid 
 accounts, the said defendant thereto should be found to 
 have been overpaid the said sum of one thousand five 
 hundred pounds and interest, then the said defendant 
 thereto might be decreed to repay to the said plaintiffs what 
 should be found to have been so overpaid with interest 
 thereon, and that the costs of and occasioned by that 
 suit, or so much thereof as this Honourable Court shoald 
 consider proper, might be decreed to be paid by the said 
 defendant thereto and for further relief. 
 
 2. The bill contains the usual interrogatories for the said 
 defendant thereto to answer and to make discovery accord- 
 ing to the course of pleading in this Honourable Court, and 
 the plaintiffs require from the defendant hereto a full and 
 sufficient answer thereto. 
 
 3. The said original defendant Thomas Smith being 
 duly served with subpoena for that purpose, duly appeared 
 to the said original bill, but before putting in his answer 
 thereto, and on or about the thirtieth day of May in the 
 present year one thousand eight hundred and fifty-two, the 
 said defendant departed this life intestate, and letters of 
 administration of his goods chattels rights and credits 
 were, on or' about the twentieth day of September in the 
 present year one thousand eight hundred and fifty-two, 
 duly granted by and out of the proper Ecclesiastical Court, 
 to wit the Prerogative Court of the Archbishop of Can- 
 terbury, to Martha Smith of Greenham in the county of 
 Berks spinster the defendant hereto, whereby she has 
 become and now is the sole legal personal representative of 
 the said late defendant, and the said defendant hereto also 
 on or about the same day procured and had letters of ad- 
 ministration of the goods chattels rights and credits of the 
 said John Smith deceased the intestate in the said original 
 bill named, left unadministered by the said late defendant, 
 duly granted to her by and out of the same Ecclesiastical 
 Court, (being the proper Ecclesiastical Court for the pur- 
 
PLEADINGS. 379 
 
 pose), whereby she has become and now is likewise the sole 
 legal personal representative of the said ori^nal intestate 
 John Smith deceased, and by the means aforesaid the 
 said defendant hereto as such administratrix, or otherwise, 
 has become and is chargeable with and interested in all the 
 matters of the said original suit, in respect whereof the said 
 late defendant would have been chargeable or interested, 
 and was sought to be thereby charged if he had continued 
 living. 
 
 4. The defendant hereto has possessed and received per- 
 sonal estate and eflFects of the said late defendant, sufficient 
 and applicable to the satisfaction of the claim of the plain- 
 tiffs in the said original and this present suit against the 
 estate of the said late defendant, and the plaintiffs are at 
 present uninformed whether the said late defendant was 
 seised of or entitled to any real estate, in case it should be 
 necessary to have the same or the proceeds thereof applied 
 to the satisfaction of the said claims of the plaintiffs against 
 the said late defendant, and the defendant hereto ought to 
 make discovery thereof. 
 
 5. The said late defendant left tJie defendant hereto his 
 only sister and heiress at law and oustoniary heiress, as 
 the plaintiffs have been given to understand, but the 
 plaintiffs know not otherwise than as aforesaid, whom 
 the said late defendant left his heir or heirs at law, or cus- 
 tomary heir or heirs, or who is or are now such heir or 
 heirs, or what real estate, if any, the said late defendant 
 was seised of or entitled to at his decease, nor the amount 
 or value of his personal estate and effects, nor the amount 
 of his personal expenses and debts, and the defendant 
 hereto ought to make proper discovery of the matters 
 aforesaid, and either to admit assets, or be decreed to 
 account as hereinafter prayed, as to the estate of the said 
 late defendant. 
 
 6. [Set forth negociations and correspondence]. 
 
 PRAYER. 
 
 The plaintiffs pray as follows : 
 
 1. That the said defendant hereto may answer the pre- 
 mises, and may in and by her answer to this present 
 bill answer also all the interrogatories of the said 
 
380 
 
 PLEADINGS. 
 
 original bill, and that the plaintiffs may have the same 
 benefit of their said original suit- and the proceedings 
 therein against the said Thomas Smith deceased, late 
 defendant hereto, as they would have been entitled to 
 against the said late defendant if now living, and that 
 what, on taking such accounts as by plaintiffs' said 
 original bill prayed, shall be found due and owing 
 fi:om the said late defendant, may be answered and 
 paid by the said defendant hereto his representative, 
 out of the assets of her said intestate, and that if 
 necessary, proper accounts may be taken of the estate 
 debts funeral and testamentary expenses of the said 
 late defendant Thomas Smith, and that his estate and 
 effects may be applied in a due course of administration, 
 and in payment of the demands of the plaintiffs. 
 
 2. That the like accounts may be decreed to be taken 
 against the defendant hereto, and the like payment 
 decreed to be made by her in respect of her own acts 
 and dealings in the premises, as by the said original 
 bill was prayed against the said late defendant thereto. 
 
 3. That the defendant hereto, her attorneys and agents, 
 may be restrained by the order and injunction of this 
 Honourable Court from commencing or prosecuting 
 any action or other proceedings at law against the 
 plaintiffs, or either of them, for the recovery of the 
 sum of one thousand five hundred pounds, or any part 
 thereof, the plaintiffs being ready and willing, and 
 hereby offering to pay to the said defendant hereto 
 what, if anything, shall be found due to her in the 
 premises, on having the said shares and scrip certificates 
 in the said original bill mentioned and thereby claimed, 
 duly restored or accounted for to the plaintiffs in the 
 manner suggested by the said original bill. 
 
 4. 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, 
 Martha Smith. 
 
 (Name of Counsel.) 
 
 W. Rogers. 
 
PLEADINGS. 381 
 
 Claim by a Trustee against his co-Trustee and Cestui que 
 Trust, for delwery up of a receipt given by Cestui que 
 Trust to Defendant Trustee in respect of part of the Trust 
 Funds, and that Plaintiff may be declared entitled to 
 the benefit of a Bond, given by Defendant Trustee on 
 obtaining such receipt, {the receipt having been obtained 
 back by Cestui que Trust), and that the suit may be 
 taken as a cross Suit to a Bill by the Cestui que Trust 
 for restitution of the Trust Fund- " 
 
 In Chancery. 
 Lord Chancellor. 
 Vice Chancellor Wood. 
 
 Thomas Coppard - - - Plaintiff. 
 
 Georgiana Byass and Richard Gates Defendants. 
 
 THE CLAIM 
 
 Of Thomas Coppard, of Horsham, in the county of 
 Sussex, gentleman, the above-named plaintiff. 
 
 The said plaintiff states : 
 
 That he and the above-named defendant Richard Gates 
 of Horsham in the county of Sussex brewer, a trustee 
 under and by virtue of a certain indenture of settlement 
 bearing date the thirteenth day of December one thousand 
 eight hundred and seventeen, made previously to and in 
 consideration of the marriage of George Pecknell Byass 
 and Mary Ann his wife, severally since deceased, and which 
 marriage took place soon after the date of such settlement, 
 and the above-named defendant Georgiana Byass now of 
 Salisbury Street Strand in the county of Middlesex 
 spinster, is one of the children of such marriage. 
 
 That such settlement comprised trust funds of consider- 
 able amount, and the said defendant Georgiana Byass, 
 has become and is entitled to a share of such trust funds 
 under such settlement, as one of the children of the said 
 marriage. 
 
382 PlyEADlNGS. 
 
 That the particulars of the said funds so settled, and the 
 contents of snch indenture of settlement appear in and by 
 a bill of complaint now pending in this Court, at the suit 
 of the said Georgiana Byass as plaintiff, against the present 
 plaintiff and the said Richard Gates as defendants thereto, 
 being the suit of Byass v. Gates hereinafter mentioned. 
 
 That the said defendant Richard GateSj is the maternal 
 uncle of the said defendant Georgiana Byass. 
 
 That prior to and at the date, of the receipt given and 
 delivered by the said defendant Georgiana Byass to the 
 plaintiff and the said defendant Richard Gates Ibis said co- 
 trustee as hereinafter mentioned, and of the bond given 
 and executed by the said defendant Richard Gates to the 
 said defendant Georgiana Byass as hereinafter mentioned, 
 the said defendant Richard Gates had in his hands a con- 
 siderable {)ortion of the said trust monies arising under the 
 said indenture of settlement, and was indebted to the sahl 
 trust and to the said defendant Georgiana Byass in respect 
 thereof, and the said Richard Gates was likewise con- 
 siderably indebted to the plaintiff on his own private 
 account, irrespective of the said trusts or trust funds, and the 
 plaintiff had frequently called upon and requested the said 
 defendant Richard Gates, to pay over and duly invest the trust 
 funds so then in his hands, but which he had neglected to do. 
 
 That the fact of the said defendant Richard Gates 
 having such trust monies in his hands, had been well known 
 to the said defendant Georgiana Byass and her said parents, 
 or some or one of such parties, and likewise to the solicitor 
 and legal adviser of the said defendant Georgiana Byass, 
 long prior to the date of the said receipt and bond. 
 
 That under the circumstances aforesaid, and in the year 
 one thousand eight hundred and forty-eight, an arrangement 
 and agreement was come to by and between the said de- 
 fendants Georgiana Byass and Richard^ Gates, that the said 
 defendant Richard Gates, should give and execute to the 
 said defendant Georgiana Byass, his the said Richard 
 Gates's bond or obligation for the sum of seven hundred 
 and twenty pounds hereinafter mentioned with interest, 
 and that the said Georgiana Byass should thereupon and in 
 consideration thereof, give and deliver her receipt and dis- 
 charge to the plaintiff and to his said co-trustee, for and in 
 respect of the sum of seven hundred and twenty, pounds, 
 as part or in respect of the share coming to the said defend- 
 ant Georgiana Byass, of the said trust funds. 
 
PLEADINGS. 383 
 
 ~ That the said defendant Georgiana Byass thereupon 
 accordingly signed and delivered to the said defendant 
 Richaid Gates, for and on behalf of the plaintiff and him- 
 self the said defendant Richard Gates as such trustee as 
 aforesaid, a receipt and discharge for such sum of seven 
 hundred and twenty pounds, as being received from the 
 said plaintiff and the said defendant Richard Gates as 
 such trustee as aforesaid, and such receipt was and is in the 
 words and to the purport and effect following, that is to 
 say: 
 
 "Received 1st February 1848, of Messrs. Richard Gates 
 and Thomas Coppard, trustees under the marriage articles 
 of my late father and mother, the sum of 7201. on account 
 of the portion or share of the trust funds to which I am 
 entitled under the said marriage articles. 
 
 " Georgiana Byass." 
 
 That the said defendant Richard Gates, thereupon and 
 in consideration of the giving and delivery of such receipt 
 and discharge to the said plaintiff and himself, gave and ex- 
 ecuted to her the said defendant Georgiana Byass, his the 
 said Richard Gates's bond or obligation in writing, bearing 
 even date with the said receipt, in the penal sum of one 
 thousand four hundred and forty-pounds, with a condition 
 thereunder written for making void such bond, on payment 
 by the said Richard Gates, his heirs executors or adminis- 
 trators to the said Georgiana Byass, of the sum of seven 
 hundred and twenty pounds, (the amount for which the 
 said receipt was given as aforesaid,) with interest thereon at 
 and after the rate of five pqunds per centum per annum in 
 manner therein mentioned, and such bond is accordingly 
 now in the custody or power of the said defendant Geor- 
 giana Byass, and in full force and operation. 
 
 That the said trust money was, in truth and in fact, by 
 the said defendant Georgiana Byass, and her said parents 
 kept and allowed to lie and remain in the hands of the said 
 defendant Richard Gates, by reason and with the view to 
 the payment by the said defendant Richard Gates to them, 
 of interest thereon at and after the rate of five pounds per 
 centum per annum, being a larger income than the trust 
 funds would have otherwise produced, and such money re- 
 maining accordingly in the bands of the said Richard 
 Gates, with the knowledge and sanction of the said 
 parties. 
 
384; PLEADINGS. 
 
 That the said receipt was given ao(J delivered by, and 
 the said bond was given and accepted' by the said defendant; 
 Georgiana Byass, as and for and in satisfaction and disr 
 charge of the said sum of seven hundred and twenty pounds i 
 as against the plaintiff; and the said defendant Richard 
 Gjates, upon the said receipt being so given and such secu- 
 rity taken, brought and produced the said receipt to the 
 plaintiff, as and for bis the plaintiff's discharge for the said 
 amount, and the same was treated and dealt with and made 
 use of, as such discharge accordingly. -i,? 
 
 That the said defendant Richard Gates, subsequently, 
 thereto was and continued in good circumstances, and. made 
 payments to the plaintiff and others. 
 
 That the said defendant Richard Gates, continued to 
 pay such interest at five pounds per centum per annum, on 
 the said sum of seven hundred and twenty poupds, to the 
 said defendant Georgiana Byass, for a considerable period 
 from and after the date of the said receipt and bond, and 
 the said receipt remained in the custody and possession of 
 the Said Richard Gates, on the joint account and as the 
 joint property of and belonging to the plaintiff and himself 
 the defendant Richard Gates, as such trustees as aforesaid, 
 until he the said defendant Richard Gates fraudulently and 
 collusively delivered back the same to the said defendant 
 Georgiana Byass as hereinafter mentioned. 
 
 That the fact of such receipt and discharge being given 
 to, and such security taken and accepted by the said 
 defendant Georgiana Byass, was, in manner aforesaid, made 
 known to and acted upon by and between the plaintiff and 
 the said defendants respectively. 
 
 That the said defendant Richard Gates, has since failed 
 in his pecuniary circumstances, and he and the said defend- 
 ant Georgiana Byass, thereupon Jately and without the 
 knowledge or sanction of the said plaintiff, secretly and 
 collusively, and with a view to defraud the plaintiff thereby 
 if they could, have arranged and agreed together that the 
 said receipt should be delivered back by the said defendant 
 Richard Gates to her the said defendant Georgiana 
 Byass, and the same has been accordingly, in pursuance 
 thereof, delivered up by the said Richard Gates to her the 
 said defendant Georgiana Byass, and is or ought to be now 
 in her custody or power. 
 
 That the said defendant Georgiana Byass has thereupon 
 instructed her solicitor in this Court hereinbefore men- 
 
PLKADINGS. 385 
 
 tioned, to bring the suit of Byass v. Gates, thereby seeking 
 to recover payment from the said plaintiff of the said snm 
 of seven hundred and twenty pounds, the amount of the 
 said receipt and otherwise, in respect of her share of the 
 said trust funds, and answers have been put in to such suit 
 and issue joined, and witnesses examined orally therein, 
 and such suit is now pending in this Court. 
 
 That such delivery up of such receipt was and is a fraud 
 in equity upon the plaintiff, and the same receipt ought to 
 be decreed to be restored by the said defendants hereto, to 
 the proper custody thereof. 
 
 That the several facts and circumstances hereinbefore 
 appearing, do and will appear in evid^ce and be proved in 
 and by the evidence which hath been or will be given in 
 the said other suit now pending in this Court, and the 
 plaintiff craves to refer to and use such evidence so far as 
 the same may be necessary in support of this his claim. 
 The plaintiff therefore claims to have the said receipt 
 restqred and delivered back to the joint custody of him 
 and the said defendant Richard Gates, and that the 
 same may be ordered and decreed accordingly, and that 
 the plaintiff may be declared to be released and dis- 
 charged as against the said defendant Georgians 
 Byass, from the sum of seven hundred and twenty 
 pounds therein mentioned, and that if necessary the 
 plaintiff may be declared entitled in equity to the benefit 
 of the said bond, as against the said defendant Richard 
 Gates, with all dfrections in that behalf, and that if 
 necessary, this present suit may be considered and 
 taken as a cross suit to the said suit of Byass v. Gates, 
 and that the defendants hereto or one of them may be 
 ordered to pay the plaintiff his costs of and occasioned 
 by this suit, and that this claim may be set down to be 
 heard together with the said suit of Byass v. Gates, 
 and that plaintiff may have general equitable relief in 
 the premises. 
 
 W. ROOEBS. 
 
 c c 
 
386 PLEADINGS. 
 
 £ill of Revivor and Supplement, after Decree in an Admini- 
 stration Suit seeking Appointment of a Receiver, 
 
 In Chancery. 
 Lord Chancellor. 
 Vice Chancellor Kindersley. 
 
 Between Harriett Horner and M.iria Hor- 
 ner ^ . _ Plaintiffs. 
 
 William Horner, Elizabeth Horner, Ca- 
 roline Horner, Godfrey Spencer 
 Horner, infants, by their guardian 
 Edward Anthony Horner, and Sarah 
 Horner widow - - Defendants. 
 
 BILL OF SUPPLEMENT AND REVIVOR. 
 
 To the Right Hononrable Robert Monsey, Baron 
 Cranwortn, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Humbly complaining, show unto your Lordship Harriett 
 Horner and Maria Horner, both of No. 15, Melville Ter- 
 race, Torriano Avenue, Kentish Town, in the county of 
 Middlesex, spinsters, the above-named plaintiffs, as fol- 
 lows : 
 
 \. The original bill in this suit was filed in the name of 
 the said now plaintiffs Harriett Horner and Maria Homer, 
 and the defendants William Homer, Elizabeth Horner, Caro- 
 line Horner and Godfrey Spencer Horner severally then 
 infants by Mary Ann Horner their next friend plaintifls, 
 against the said defendants Edward Anthony Horner then 
 also an infant, and Samuel Marsh and Robert Corser since 
 dismissed and Robert Ryder Homer since deceased as de- 
 fendants, and by which bill as amended it is prayed that the 
 will of the testator Anthony Horner therein mentioned, 
 may be established, the trusts thereof performed and carried 
 
PLEADINGS. 387 
 
 into execation by anci under the direction of this Honour- 
 able Court, and that the accounts therein mentioned may 
 be taken and other relief including the appointment of a 
 receiver of the personal and real estate of the said testator 
 as therein prayed. 
 
 2. The said defendants Samuel Marsh and Robert Cor- 
 ser, who were the executors of the will of Harriett Horner 
 deceased in the said bill mentioned, who was an executrix 
 of the will of the said testator Anthony Homer, have been 
 since dismissed the said suit by order of this Court made on 
 the hearing on further directions hereinafter mentioned. 
 
 3. The said defendant Robert Ryder Horner was a party 
 to the said suit solely as trustee, a^d as an executor (who 
 had proved the same) of the said will of the said testator 
 Anthony Horner, and he has since departed this life, having 
 made and published his last will and testament in writing, 
 and thereby appointed his wife the said defendant Sarah 
 Horner executrix thereof, who has duly proved such wiH 
 in the proper Ecclesiastical (!)ourt, and has thereby become, 
 and now is the sole legal personal representative of the said 
 late defendant, and as such chargeable in respect of his 
 estate in respect of the matters in question in the said suit. 
 
 4. That a decree was made in the said suit on the hear- 
 ing thereof, bearing date the twenty-fifth day of May one 
 thousand eight hundred and forty-nine, whereby accounts 
 and inquiries were directed, including an account of the 
 receipts and payments of the said late defendant Robert 
 Ryder Horner and the said Harriett Horner deceased. 
 
 5. That a report bearing date the fifteenth day of July 
 one thousand eight hundred and fifty-two, was made by the 
 Master pursuant to the said decree, which stands absolutely 
 confirmed by the usual orders in that behalf, and by such 
 report certain balances are found due from and to the said 
 late defendant Robert Ryder Horner, and a mortgage debt 
 and leasehold property, and other parts of the said testator's 
 personal estate are thereby found to be outstanding and 
 undisposed of. 
 
 6. That the said late defendant Robert Ryder Horner 
 was only one of the several executors of the said testator's 
 said will, and there is another executor thereof in the ori- 
 ^nal bill named yet surviving, but who duly renounced 
 probate of the said will, and is not a party to the said suit, 
 
 7. That the said suit lately came for hearing on further 
 directions on the said Master's said report before the Right 
 
 c c 2 
 
388 
 
 PLEADINQ8. 
 
 Honourable the Lords Justices of Appeal, whereupon an 
 order dated the twelfth day of March one thousand eight 
 hundred and fifty-three was made by their said Lordships 
 on such hearing, and on a petition relating to the said mort- 
 gage debt, whereby directions were given consequent upon 
 the said report and on the said petition, but the minutes of 
 such order have not yet been settled, nor such order yet 
 drawn up or passed. 
 
 8. That pending the matters aforesaid, the now plaintiff 
 have attained their 'respective full age of twenty-one years, 
 and the said late defendant Robert Ryder- Horner having 
 been and acted by his agent as the solicitor for the plaintifl^ 
 in the said suit, and a%defendant he appeared arid acted by 
 such agent as solicitor for him, and he having died pending 
 the .proceedings aforesaid, and the said now plaintiffs being 
 dissatisfied with certain of the proceedings, had in the said 
 suit lately, caused applications to be made by way of sum- 
 mons to the Judge at chambers on their behalf to stay 
 the further prosecution thereof in the name of the plaintiff 
 Maria Horner, and to have the carriage of the proceedings 
 in the cause as plaintifl^, and also for the appointment of a 
 receiver of the said testator's real and personal estate. 
 
 9. That such applications are still pending, that the said 
 now plaintiffs have since the filing of the original bill here- 
 in, to. wit on the twenty-first day of July eighteen hundred 
 and fifty-three, duly obtained letters of administration dated 
 the day and year last aforesaid, of the goods chattels rights 
 and credits of the said testator Anthony Homer left un- 
 administered by his said former executrix and executors, 
 with his said will annexed, to be duly granted and com- 
 mitted to them the said now plaintiffs, by and out of th'e 
 proper Ecclesiastical Court, and they have thereby now 
 become and are the sole legal personal representatives of 
 the said testator, and the proper persons to administer the 
 said testator's said leasehold and other outstanding personal 
 estate under the direction of this Court, but inasmuch as 
 there is under the circumstances aforesaid no solicitor to 
 prosecute the said suit on behalf of all parties named as 
 plaintiffs on the record, and the plaintiffs being dissatisfied 
 with the former proceedings as aforesaid, inasmuch as their 
 eldest brother, one of the solicitors of the Court, is willing, 
 and has offered to carry on and prosecute this suit upon 
 payment of his costs out of purse only, which no other soli- 
 citor would do, the now plaintiffs refuse to concur in the 
 
PLEADINGS 389 
 
 appointment of such a joint solicitor for all the plaintiffs in 
 the said former suit, and are desirous to revive and carry 
 on and prosecute the said former suit and proceedings for 
 the benefit of themselves and their brothers and sisters, 
 defendants to this bill. 
 
 10. That Mr. John Meacher, a personal friend of the 
 now plaintiffs and of the said infants, and of the defendant 
 Edward Anthony Horner, who are together the only parties 
 beneficially interested in the said testator's estate under his 
 said will, has offered, and is willing to be appointed and act 
 as receiver in this suit of the said testator's real and personal 
 estate without salary, and the plaintiffs are also desirous if 
 possible to avoid the expense of taking the usual security 
 given in like cases. 
 
 11. That so far as the plaintiffs can at present discover, 
 the said late defendant Robert Ryder Horner was not at 
 the time of his decease seised of or entitled to any real 
 estate, or if so seised, there will be no occasion 'to resort to 
 or apply the same for the purposes of this suit 
 
 PRAYER. 
 
 The plaintiffs pray as follows: 
 
 1. That the said former suit and the decree and proceed- 
 ^ ings had therein, may stand and be revived against the 
 
 said defendant Sarah Horner widow as such executrix 
 as aforesaid, and against the several, other defendants 
 hereto, and that the now plaintiffs may be declared 
 entitled to cariiy on and prosecute the said former 
 decree and proceedings against the several defendants 
 to this bill. 
 
 2. That the said Mr. John Meacher may be appointed 
 such receiver as aforesaid without salary, and subject 
 to such order as this Court may think fit to make, dis- 
 pensing with the usual security given by receivers or 
 otherwise, that he or some other proper person may 
 be appointed such receiver as aforesaid in the usual 
 manner by the order of this Court, with the usual 
 directions. 
 
 3. That if necessary the usual accounts may be taken of 
 and relating to the funeral and testamentary expenses 
 debts and personal estate of the said late defendant 
 Robert Ryder Horner deceased. 
 
390 PtKADINGS. 
 
 4. That the plaintiffs may have such further or other 
 relief as the nature of the case may require, the now 
 plaintiffs being ready and willing, and hereby offering 
 duly to account for what may have come and shall 
 come to their hands as such administratrixes as afore- 
 Said in respect of the said -testator Anthony Horner's 
 estate. 
 
 W. ROGEBS. 
 
 Names of the defendants. 
 
 The defendants to this Bill are, , 
 
 William Hornerj 
 Elizabeth Horner, 
 Caroline Horner, and 
 Godfrey Spencer Horner, 
 
 infants imder the age of twenty-one years, and 
 Edward Anthony Horner, and 
 Sarah Horner widow. 
 
 Hill of Revivor and Supplement against representatives of 
 deceased defendant {against tvhom the Plaintiff claimed 
 Accounts and Relief in respe-ct of a Partnership Trans- 
 action), praying, if necessary, to have the accounts of the 
 Personal and Real Estate of the deceased defendant 
 taken, ^c. 
 
 In (chancery. 
 
 Master of the Rolls. 
 
 Mark Faviell - - Plaintiff. 
 
 John Potter and Bryan Dawson Smith Defendants. 
 
 BILL OF REVIVOR AND SUPl'LEMENT. 
 
 To the Right Honourable Robert Mousey; Baron 
 Oanworlh, of Cranworth, in the county of Norfolk, 
 Lord 'High Chancellor of Great Britain. 
 
PLEADINGS. 391 
 
 Humbly complaining, showeth unto his Lordship Mark 
 Faviellj of Amcott's Lodge, in the parish of Althorpe, in the 
 county of Lincoln contractor, the above-named plaintiflF, 
 as follows: 
 
 L The plaintiflF on or about the twelfth day of April one 
 thousand eight hundred and forty-four, filed his original 
 bill of complaint in this Honoui'able Court against Charles 
 Faviell formerly of Harrowgate in the county of York and 
 afterwards residing in the kingdom of Ireland contractor 
 since deceased as defendant thereto, thereby stating various 
 matters therein stated, tending to show and prove, and in 
 fact, as plaintiflF is advised, thereby showing the existence of 
 a partnership or joint concern by way of trade between the 
 said plaintiflF and the said late defendant to the said original 
 bill, in and in respect of such business and railway con- 
 tracts as therein in that behalf mentioned, and whereby, 
 as is so shown and as the fact is, the plaintiflF became and 
 was and is entitled to one equal moiety or half part of and 
 in the gains and profits made and derived from such con- 
 tracts and business as in the said original bill mentioned, 
 and whereby the said late defendant became and was at 
 the time of his decease indebted to the plaintiflF, for and in 
 respect of such moiety or half part of such gains and profits 
 in manner in the said bill stated, and thereby praying that 
 the said late defendant might answer the premises, and 
 that it might be decreed and declared by this Honourable 
 Court, that the contract so entered into by or in the name 
 of the said defendant thereto as therein mentioned, with 
 the railway company thereii;i mentioned, as therein men- 
 tioned and set forth, and the extra works therein mentioned 
 in relation thereto, was and were entered into on the joint 
 account, and was and were a joint partnership or speculation 
 of and between the plaintiflF and the said defendant thereto, 
 and that the plaintiff might be decreed and declared entitled 
 to one equal moiety or half part of the profits made or 
 derived or resulting by or from the same, and that the said 
 defendant thereto might be decreed to account for and pay 
 the same to the plaintiflF accordingly, and that a proper 
 account might be decreed to be taken accordingly of the 
 same profits by and under the decree and direction of this 
 Honourable Court, and that all proper accounts might be 
 decreed to be taken for ascertaining the same profits and 
 the amount due to the plaintiff in respect of his share 
 thereof, and that all such other accounts might be directed • 
 
PLEADINGS. 
 
 and directions given in ihe premises as might be requisite 
 and proper, and that, if necessary, the said defendant thereto 
 and his agents might be restrained by the order and injunc- 
 tion of this Hononrable Court, from receiving or possessing 
 himself of any of the moneys remaining due owing or pay- 
 able by or from the Hull and Selby Railway Company 
 therein mentioned, or any securities for the same or any 
 part thereof, and from indorsing, negociating, or parting 
 with any of the securities for the same and for further 
 relief. 
 
 2. The said original bill contains the usual interrogatories 
 for the said defendant thereto to answer and to make disr 
 covery of the matters thereof according to the then course 
 of pleading in this Honourable Court, and the plaintiff 
 requires from the defendants hereto a full and sufficient 
 answer to such interrogatories. 
 
 3. The said late defendant, Charles Faviell, being duly 
 served with subpcena for that purpose, duly appeared to the 
 said original bill, but before putting in his answer thereto, and 
 in or about the month of May one thousand eight hundred 
 and fifty-two, the said late defendant departed this life, 
 having first duly made and executed his last will and tes- 
 tament in vsrriting, whereby he appointed Charles Watson, 
 therein described, and John Potter, of Spofforth, in the 
 county of York, and Bryan Dawson Smith, of Kearby, in 
 the same county (in the said will by mistake called Bryant 
 Dawson Smith.) the defendants hereto executors thereof. 
 
 4. The said will, with a codicil thereto not affecting the 
 matters in question, has been duly proved by the said 
 defendants hereto in the proper Ecclesiastical Court, to wit, 
 the Court of the Archbishop of York, the other executor 
 therein mentioned having duly renounced probate thereof, 
 and by the means aforesaid the said defendants hereto have 
 become and now are the sole legal personal representatives 
 of the said late defendant, and as such, chargeable vrith and 
 interested in all the matters of the said original suit, in 
 respect whereof the said late defendant would have been 
 chargeable or interested and was sought to be thereby 
 charged, if he had continued living. 
 
 5. The said late defendant by his said will also devised 
 all his real estate to the said defendant^ hereto, in trust to 
 sell and dispose of the same and to apply the proceeds of 
 such sale upon and &r the trusts and purposes and in the 
 
 . manner in the said bill mentioned, to wit, in and towards 
 
PLEADINGS. 39;i 
 
 the payment of the said hite defendant's funeral and testa- 
 mentary expenses and debts, and subject thereto, for the 
 benefit of the parties therein-mentioned, and with a pro- 
 vision contained in the said will, enabling the said defend- 
 ants hereto, and whereby they have full power to give 
 effectual receipts and discharges for the moneys to arise 
 from the sale of such real estates, and the rents and profits 
 of such estates, to arise in the meantime, and by the nieans 
 aforesaid, the said defendants hereto are as plaintiff is ad- 
 vised, enabled and authorized by and out of the personal 
 and real estate of the said late defendant to answer and 
 pay the funeral and testament*ry expenses and debts of the 
 said late defendant, including the plaintiff's debt herein 
 mentioned, and the said defendants hereto are accordingly, 
 as the plaintiff is advised, the only necessary parties to this 
 suit, and by the means aforesaid, the said defendants hereto 
 have become and are now chargeable with and liable to 
 the payment to the plaintiff of the debt due and owing to 
 him from the said late defendant, as in the said former bill 
 mentioned, by and oiit of such personal and real estate. 
 
 6. So far as plaintiff can at present discover, the personal 
 estate and effects of the said late defendant, together with 
 the proceeds of his real estate including the rents and 
 profits thereof accruing and to accrue since his decease, are 
 and will be sufficient for the payment- of what became in 
 manner in the said former bill appearing and yet remains 
 due and owing from the said late defendant to the plaintiff 
 in respect of the matters in the said original bill mentioned, 
 and the other debts of the said late defendant. 
 
 7. A large and considerable sum of money was at the 
 time of the decease of the said late defendant and still 
 remains justlv due and owing from the said late defendant 
 to the plaintiff, with interest thereon then and since 
 accrued and yet accruing, and payable to the plaintiff in 
 respect of the matters in the said original bill in that behalf 
 mentioned, and such debt so due and owing to the plaintiff 
 uranains wholly due and unsatisfied. 
 
 8. The defendants hereto have possessed and received 
 personal estate and effects of the said late defendant to a 
 considerable amount, applicable to the satisfaction of the 
 said claim of the said plaintiff against the estate of the said 
 late defendant, and the defendants hereto or some person 
 or persons by or for their order or use have likewise entered 
 into possession and receipt of the rents and profits of the 
 
394 PLEADINGS. 
 
 real estate of the said late defendant, and have received the 
 same to a considerable amount in the whole, but the plaintiiF 
 is at present unable to discover or set forth vrhat part or 
 parts (if any) of the personal or real estate of the said late 
 defendant hath or have been sold or disposed of, or other- 
 wise realised by or by the order or for the use of the said 
 defendants hereto, or any or which of them, and the said 
 defendants hereto ought to make a full and fair discovery 
 thereof, and to set forth all such accounts of and relating to 
 the personal and real estate of the said late defendant, and 
 the proceeds thereof, and his funeral and testamentary 
 expenses and debts, and otherwise, as shall be required of 
 the said defendants in and by the interrogatories intended 
 to be filed by the plaintiff in this suit, to be answered by 
 the said defendants hereto relating to- the matters of the 
 said original and this present bill. 
 
 9. By the decease of the said late defendant the said 
 original suit has become abated. 
 
 10. The plaintiff shows, by way of supplement, that the 
 said late defendant never in his lifetime questioned or dis- 
 puted the partnership alleged and insisted upon by the 
 plaintiff by the said original bill, and on which was grounded 
 such relief as thereby prayed against him, nor his the said 
 late defendant's liability to account for and pay to the 
 plaintiff, his the said plaintiff's moiety of the gains and 
 profits of such partnership or joint concerns as in the said 
 original bill mentioned. 
 
 [Set forth divers evidences of this statement, correspond- 
 ence, interviews, entries in bankers' books, &c]. 
 
 PRAYER. 
 
 The plaintiff prays as follows: 
 
 1. That the said several defendants hereto may answer 
 the premises, and may in and by their answers to this 
 present bill answer also in like manner all the interro- 
 gatoiies of the said original bill, and that the plaintiff 
 may have the same benefit of his said original suit, 
 and the proceedings therein, and likewise the benefit of 
 the supplemental matters aforesaid, against the several 
 defendants hereto as such representatives of the said 
 
PLEADraCfi. 395 
 
 late defendant, as he the said plaintiff would have been 
 entitled to against the said late defendant if now living, 
 and that what on tiiking such accounts as by the 
 plaintiff's said original bill prayed shall be found due 
 and owing from the said late defendant, with the 
 interest due and to grow due thereon, may be an- 
 swered and paid by the defendants hereto, his repre- 
 sentatives, out of the assets of their said testator, and 
 that if necessary proper accounts may be taken of the 
 personal and real estate of the said late defendant, and 
 the proceeds of such personal estate, and the rents 
 profits purchase monies <iand other proceeds of such 
 real estate respectively, which have been or may be 
 received by or come to the hands of the said defend- 
 ants hereto, or any of them, or any person or persons 
 by or for their order or use, and of the application 
 thereof and that all other necessary and proper ac- 
 counts and inquiries may be taken, and directions 
 given in relation thereto, the plaintiff being ready and 
 hereby offering to come to a fair and just account in 
 the premises, and to pay what, if anything, may be 
 found due from him on taking of any such accounts as 
 aforesaid. 
 . That the plaintiff may have such further or other 
 relief as the nature of the case my require. 
 
 Names of defendants. 
 
 The defendants to this Bill of Complaint are, 
 John Patter and 
 Bryan Dawson Smith. 
 
 (Name of Counsel.) 
 
 W. Rogers. 
 
396 
 
 PLEADINGS. 
 
 Supplemental BUI on birth of new parties, before decree in 
 original suit, (a) 
 
 In Chancery. 
 
 Lord Chancellor. 
 
 Vice (!!hancellor Kindcrsley. 
 
 George Gatton Hardingham and Arabella 
 
 his wife - - , - Plaintiffs. 
 
 Prockter Thomas Puluian, and William 
 
 Walker Pulraan the younger Defendants.- 
 
 SUPPLEMENT BILL OF COMPLAINT. 
 
 To the Right Honourable Robert Monsey, Baron 
 Cranworth, of Cranworth, in the county of Norfolk, 
 Lord High Chancellor of Great Britain. 
 
 Hun)bly complaining, show unto his Lordship George 
 Gatton Hardingham, of No. 2, Gloucester Terrace, Hyde 
 Park Gardens, in the county of Middlesex, Esq., and Ara- 
 bella his wife, the above named plaintiffs as follows: 
 
 I . That on the tv^elfth day of April one thousand eight 
 hundred and fifty-oqe the plaintiffs filed their bill in this 
 Honourable Court, against Ann Thomas widow, John 
 Peter Benson and Mary Melhnish his wife, Anne Benson, 
 Frances Benson, Prockter Melhuish Benson, Mary Marga- 
 ret Benson, Catherine Benson, Elizabeth Benson, Louisa 
 Benson, William John Benson; Thomas George Benson, 
 Grace Susannah Benson, William Walker Pulman and 
 Susannah Elizabeth his wife, as defendants thereto, thereby 
 praying that the rights and interests of the plaintifis and 
 the said defendants in the hereditaments and premises 
 therein mentioned, might be declared by and under the- 
 decree of this Honourable Court, and that the said defend- 
 
 (o) See this case of Hardingkam v. Pulman, noticed, supra, p. 60. 
 
PLEADINGS. 397 
 
 ant Ann Thomas might convey to the plaintiffs, the legal 
 estate in the several hereditaments to which the plaintiffs 
 were entitled as therein mentioned, and that possession 
 thereof might be delivered up to the plaintiffs, and that a 
 partition might be made between the plaintiffs and the said 
 defendants John Peter Benson and Mary Melhuish his 
 wife, and William Walker Pulman and Susannah Elizabeth 
 his wife, of the several hereditaments and premises, of 
 which the entirety is vested in the plaintiffs and the said 
 Mary Melhuish Benson and Susannah Elizabeth Pulman 
 in undivided third parts as therein mentioned, and that an 
 account might be taken of alk the rents and profits of the 
 said hereditaments and premises received by the said de- 
 fendants or any or either of them or by any person by 
 their order or for their use since the death of the testator 
 therein mentioned, and that the amount which should be 
 found due to plaintiffs in respect thereof might be paid to 
 them accordingly, and that an account might be taken of 
 what was due to plaintiffs in right of the plaintiffs in respect 
 of the sum of three thousand seven hundred pounds paid to 
 the said testator by John Walter as therein mentioned, and 
 the several other irionies received by the said testator for 
 the equality of partitions, purchase monies', and for fines on 
 leases as therein appears, and also-from the cutting and sale 
 of timber on the several estates of which he was tenant for 
 life under the will of Mary Hole as therein appears, and 
 that the same might be paid to the plaintiffs accordingly out 
 of the personal estate of the said testator, or. if the same 
 should be insufficient for the purpose out of his real estates, 
 and that all accounts might be taken of the estate and 
 effects of the said testator as should be necessary for the 
 purposes therein mentioned, and that the said defendants 
 might be restrained by the order and injunction pf this 
 Honourable Court, from setting up the legal estate in the 
 said hereditaments and premises in bar or as a defence to 
 the claim and title of the plaintiffs to the said hereditaments 
 and premises as therein mentioned, and that some proper 
 person might be appointed by this Honourable Court as a 
 receiver, to receive and get in the rents and profits of the 
 said hereditaments and premises to which the plaintiffs 
 were entitled as therein mentioned, and that all other direc- 
 tions might be given and accounts taken, which should be 
 necessary for properly effectuating the purposes of the said 
 suit and that the plaintiffs might have such further and 
 
398 PLEADINGS. 
 
 Other relief in the premises as the nature of the case might 
 require, and to your l^ordship should seem meet. 
 
 2. The defendants William Walker Pulman and Susannah 
 Elizabeth his wife, were made defendants to the said suit 
 by reason of their claiming to be interested in a moiety of 
 the real estates of William Prockter Thomas, which they 
 alleged to be devised by his will upon trusts for the benefit 
 of the said William Walker Pulman and Susannah Elizabeth 
 his wife and their children, and out of which- the sums 
 claimed by the plaintiffs would be raised according to the 
 prayer of the said bill, and by reason also of their claiming 
 to be interested under the said devise in the real estates 
 claimed by the plaintiffs in the said suit. 
 
 3. Since the filing of the said bill the said William Walker 
 Pulman and Susannah Elizabeth his wife have had two chil- 
 dren born, videlicet, the above-named defendants Prockter 
 Thomas Pulman and William Walker Pulman the younger, 
 who claim to be interested under the will of the said 
 William Prockter Thomas in the real estates devised by the 
 will of the said William Prockter Thomas, and who also claim 
 to be interested in the real estates claimed by,the plaintiffs 
 in the said suit, and they are necessary parties to the said 
 suit before any decree can be made therein. 
 
 PRAYER. 
 
 The plaintiffs pray as follows: 
 
 1. That they may have the benefit of the said suit and 
 proceedings, and the same relief against the said Prock- 
 ter Thomas Pulman and William Walker Pulman the 
 younger, as is pfayed by the said bill against the 
 defendants thereto, in the same manner as if the said 
 Prockter Thomas Pulman and William Walker Pulman 
 the younger had been born before the filing of and 
 made parties defendants to the said bill. 
 
 2, That the plaintiffs may have such further or other relief 
 as the nature of the case may require. 
 
 (Name of Counsel). 
 
 J. V. Prick. 
 Names of defendants. 
 
 The defendants to this Bill of Complaint are, 
 Prockter Thomas Pulman, 
 William Walker Pulman the younger. 
 
PLEADING?. 
 
 399 
 
 Svpplemental Claim for bringing Personal Representatives 
 of deceased Executor before the Court, decree on ori- 
 ginal Claim having been made against co-executor only 
 in their absence, (a) 
 
 In Chaficery. 
 
 Lord Chancellor. 
 
 Vice Chancellor Wood. 
 
 Sarah Ewington - - Plaintiff. 
 
 GeoVge Fenn since deceased, and Edmund 
 Denyer, George Ewiugton, Elizabeth 
 I'hillips, James Law and Maria his 
 wife, and William Harris and Emma 
 his wife - . - Defendants. 
 
 And between the said Sarah Ewington, Plaintiff. 
 
 Abigail Eliza Fenn, Elizabeth Couch- 
 man Fenn, Mary Ann Fenn, and 
 
 Edmund Denyer 
 
 Defendants. 
 
 THE SUPPLEMENTAL CLAIM 
 
 Of Sarah Ewington, of Bnrnham, in the county, of 
 Buckingham, widow, the above-named plaintiff. 
 
 1 . The said Sarah Ewington states, that on or about the 
 fourteenth day. of August one thousand eight hundred and 
 fifty-one, she filed her original claim in this suit against 
 George Fenn late of No. 1 Cockburn Terrace Rye Lane 
 Peckham in the county of Surrey butcher and others, 
 thereby stating, that John Hall late of Staines in the 
 county of Middlesex coach-maker, died somifj time prior to 
 the month of December one thousand eight hundred and 
 fifteen, and by his will dated the twenty-eighth day of 
 
 (a) See supra, Etuington v. Fenn, p. 54. 
 
400 PLEADINGS. 
 
 August one thousand eight hundred and thirteen, and 
 which was duly executed and attested, after giving to his 
 wife Mary Hall certain specific parts of his personal estate, 
 knd giving to her for her life the rents and profits of his 
 real estates, and the interest dividends and profits of govern- 
 ment or other securities for money, after her decease the 
 said testator gave all his real and personal estate to 
 George Ewington and his son Thomas Ewington their 
 heirs executors administrators and assigns upon trust to 
 sell the real estates, and after discharging all expenses 
 incident to the sale thereof^ to invest tne residue of the 
 money in the same stock he might leave standing in his 
 name at his decease, and then upon trust to divide the 
 annual interest and diddends of such stock equally be- 
 tween his two daughters, Elizabeth Phillips one of the 
 above-named defendants, and Jane Wheeler for their lives, 
 _ and that the said testator's will then proceeds in the words 
 following [set out special trusts and directions of will ver- 
 batim] and that the said testator thereby appointed his said 
 wife executrix and- the said George Ewington executor of 
 his will, and the said George Ewington and Thomas Ewing- 
 ton trustees thereof, and that the said testator duly made 
 two codicils to his said will, and that by the second of the 
 said codicils [set forth effect of this codicil varying trusts 
 and directions' of will] and that the said testator's executor 
 and executrix George Ewington and Mary Hall survived 
 the said testator, and proved his said will and codicils 
 in the proper Ecclesiastical Court, and that the said 
 George Ewington died in the lifetime of the said Mary 
 Hall, and that the said Mary Hall died in the year one 
 thousand eight hundred and forty-six, having by her will 
 appointed the said George Eenn and Edmund Denyer her 
 executors, who had since proved her said will and thereby 
 became and then were the legal personal representatives 
 of the said testator John Hall, [here set forth the state- 
 ments in original bill as to deaths of cestuis que trust and 
 devolution of their interests] and that the said defendants 
 George Fenn and Edmund Denyer, had possessed them- 
 selves of such personal estate to a considerable amount, and 
 had not paid to the said Sarah Ewington her share of such 
 residuary personal estate, and the said Sarah Ewington 
 therefore claimed to have the personal estate of the said 
 John Hall administered in this Court, as by the said claim 
 will appear. 
 
PLEADINQS. 401 
 
 ■ 2. Before the said claim was heard, or any order procured 
 thereon, the said George-Fenn died, leaving the said de- 
 fendant Edmund Denyer his co-executor him surviving, 
 and the said suit was not revived against the personal repre- 
 sentatives of the said George Fenn] 
 
 3. On the first of March one thousand eight hundred and 
 fifty-tv?o, the said claim came on to be heard before Vice 
 Chancellor Turner, who made a decree or order of that 
 date, whereby he declared [set forth this decree declaring 
 the rights of the parties interested in the residuary estate, 
 and directing payment of dividends and taxation of the 
 costs of all parties as between solicitor and client.] 
 
 4. The said decree, or order has been carried into. the 
 Master's office, and is in course of prosecution there, and 
 it is alleged by the defendant Edmund Denyer, on passing 
 his accounts of receipts and payments, that the said George 
 Fenn deceased, possessed himself of the personal estate of 
 the said testator John Hall to a considerable amount, for 
 which he the said Edmund Denj'er is not accountable. 
 
 5. The said George Fenn by his will dated third Sep- 
 tember one thousand eight hundred and fifty-one, appointed 
 Edmund Couchman executor and the above-named Abigail 
 Eliza Fenn Elizabeth Couchman Fenn and Mary Ann 
 Fenn executrixes thereof. 
 
 6. Since the death, of the said George Fenn, his will has 
 been duly proved in the Prerogative Court of Canterbury 
 by the said Abigail Eliza Fenn Elizabeth Couchman Fenn 
 and Mary Ann Fenn and they have as executrixes of the 
 said George Fenn possessed themselves of sufficient assets 
 to answer and satisfy the amount which is due from his 
 estate to the estate of the said John Hall. 
 
 The said Sarah Ewington therefore claims : 
 
 To have the personal estate of the said John Hall ad- 
 ministered in this Court in the presence as well of the 
 said Edmund Denyer, as of the said Abigail. Eliza 
 Fenn Elizabeth Couchman Fenn and Mary Ann 
 Fenn, and to have it declared that the said defendants 
 Abigail Eliza Fenfa Elizabeth Couchman Fenn and 
 Mary Ann Fenn are liable to pay, out of the assets of 
 the said George Fenn, the amount which shall be 
 found due from him to the estate of the said John 
 Hall, and for the purposes "aforesaid that all proper 
 
 D D 
 
402 PLEADINGS. 
 
 directions may be given, and that the said Sarah 
 Ewitigton may have her costs of this suit. 
 
 Names of the defendants. 
 
 The defendants to this Supplemental Claim are, 
 
 Abigail Eliza Fenn, 
 Elizabeth Couchman Fenn, 
 Mary Ann Fenn, and 
 Edmund Denyer. 
 
 (Name of Counsel). 
 
 William Morris. 
 
 Bill by Administrator of an Acceptor for accommodation 
 against Drawer to be indemnified frorh liability on the 
 bills, and to have the benefit of securities, deposited by 
 Drawer with a 'Joint Stock Bank to cover balance of his 
 banking account, subject to their Hen (a). 
 
 In Chancery. 
 
 Lord Chancellor. 
 
 Vice Chancellor Kindersley. 
 
 Thomas Barnes - - - Plaintiff. 
 
 John Taylor junior - - Defendant 
 
 bill of complaint. 
 
 To the Right Honourable Edward Burtenshaw, 
 Baron St. Leonards, of Slaugham, in the county of 
 Sussex, Lord High Chancellor of Great Britain. 
 
 Humbly complaining, showeth unto his Lordship the 
 above-named plaintiff .'Thomas Barnes of Woolwich, in the - 
 
 (a) A decree has been made in this suit. The defendant refused 
 to make the discovery sought by the interrogatories as to the nature 
 of the accommodation transactions, on the ground of its laeing a mere 
 bill, quia timet. Exceptions were taken and allowed. During the 
 progress of the accounts under the decree the defendant became 
 bankrupt, and his assignees were made parties by supplemeptal decree 
 under the 52nd section of the New Procedure Act 15 & 16 Vict. c. 86. 
 
^ PLEADINGS. 403 
 
 county of Kent stone-mason, administrator of the personal 
 estate and effects of George Barnes late of the same place 
 deceased, as follows: 
 
 1. That for several years the said George Barnes de- 
 ceased, was in the habit of accommodating the defendant 
 John Taylor junior, who was a builder also residing at 
 Woolwich" aforesaid, with considerable advances of money 
 from time to time, and frequently came under liability 
 upon bills of exchange or other securities, for the accom- 
 modation and benefit of the said defendant. T 
 
 2. That several of such bills and securities were dis- 
 counted by the London and. County Bank, at Woolwich 
 aforesaid, for the said defendant John Taylor junior, or de- 
 posited by him with the said bank ; and the proceeds of 
 such bills or securities, or the monies advanced thereon, 
 were paid over to the said defendant John Taylor junior, 
 for his own use,, or such bills were otherwise made use of 
 by him for his own exclusive benefit. 
 
 3. That the said London and County Bank, on the 28th 
 day of August last, transmitted to the plaintiff as the legal 
 personal representative of the said George Barne& an. 
 account, of which the following is a copy : 
 
 liondon and County Bank, Woolwich, 28th August 1852. 
 Mr. Gfeorge Barnes, deceased, in account with this Bank. 
 
 Dr. 
 
 To overdrawn and interest . . . . £800 16 3 
 
 Acceptance to Taylor jun., 7th August 1850 165 9 
 
 14th August „ . . 220 8 3 
 
 „ 9th November „ . . 165 i 3 
 
 26th August „ . . 272 11 3 
 
 7th September „ . . 219 15 8 
 
 „ R. Thamsett to George Barnes, 
 
 .30th August 1851 „ . • 315 
 
 „ 30th September » • . 346 3 5 
 Joint promissory note of George Barnes 
 
 andTaylorjun., 2nd Jul;;; 1851 341 11 10 
 „ Taylor jun. on Michael West, indorsed 
 
 George Barnes, 18 July 1851 . 100 5 11 
 
 £2,947 2 10 
 D D 2 
 
404 PLEADINGS. 
 
 4. That such account comprises, and is principally made 
 up of accommodationv bills and notes, negotiated by the 
 said defendant John Taylor junior, for his own use and ' 
 benefit; and the said bank claims the amount of such . 
 bills and notes against the estate of the said George Barnes 
 deceased by reason of his liability as a party to the same 
 respectively; and that all the said bills and notes were 
 received by the said London and County Bank from the 
 said John Taylor junior. ' 
 
 5. That the said London and County Bank, through 
 their late manager or agent Mr. George T. Dalrymple were 
 privy to, and cognizant of, the nature of the transacljons 
 between the said George Barnes and John Taylor junior as 
 aforesaid, and were aware that all such bills and notes were 
 made and negotiated for the accommodation of the said- 
 defendant John Taylor junior arid for no other purpose; 
 and that he received and applied all money advanced by the 
 said bank, in respect of the same, to and for his own use 
 and benefit. 
 
 6. Thut each of them, the said John Taylor junior and 
 George Barnes, kept a private banking account with the 
 London and County Bank aforesaid. 
 
 7. That upon discounting or negotiating the aforesaid 
 bills and notes, the London and County Bank debited the 
 private account of the said John Taylor junior with the 
 amount of the discount payable in respect thereof, and put 
 the amount of the bill's and notes to his credit ; and that 
 such bills and notes did not in any way appear in the bank 
 pass-books of the said George Barnes, but only in the bank 
 pass-books of the said John Taylor junior. 
 
 8. That a memorandum in writing was drawn and signed 
 by the said John Taylor junior and lodged with the said 
 Mr. George T. Dalrymple, the late manager or agent of the 
 London and County Bank, importing that the said bills or 
 
 ' notes, or some of them, were only accommodation bills and 
 notes, for the benefit of the defendant John Taylor junior; 
 and such memorandum is now in the custody, or under the 
 control of the said London and County Bank, or the present 
 manager or agent of the said bank. 
 
 9. That certain leases or securities were deposited by 
 the said John Taylor junior, to secure the said bank in 
 respect of any balance which might be owing from time 
 to time upon such accommodation bills or notes, and that 
 such leases or securities are still held by the said London 
 and County Bank for the purposes of the said deposit. ' 
 
PLEADINGS. 
 
 10. That the said George Barnes had various other deal- 
 ings and transactions with the said defendant John Taylor 
 junior, in respect of which there is an open and unsettled 
 account between the said defendant and the estate of the 
 said George Barnes. 
 
 11. That the said George Barnes died in the month 
 of June one thousand eight hundred and fifly-one 
 intestate; and letters of administration to his goods, 
 chattels, and credits, were, on or about the eighth day of 
 July following, granted to the said Thomas Barnes the 
 plaintiff his brother, by and out of the Prerogative Court 
 of the Archbishop of Canterbury, by virtue whereof the said 
 Thomas Barnes became and now is his sole legal personal 
 representative. 
 
 12. That the said defendant John Taylor junior is still 
 a customer of the I^ondou and County Bank, and con- 
 tinues to keep a private banking account there, and he is 
 on friendly terms with the present manager, and occasionally 
 obtains further advances and accommodation from the said 
 bank. 
 
 13. That the said plaintiff has made several fruitless 
 attempts to induce the said defendant John Taylor junior 
 to come to a general settlement of accounts with the 
 plaintiff, as the personal representative of the said George 
 Barnes deceased, as regards the aforesaid accommodation 
 bills and notes, and all other matters. 
 
 14. That as the plaintiff is advised, he is entitled to call 
 on the said defendant John Taylor junior, for such 
 settlement of account as aforesaid; and as incidental there- 
 to, to require the defendant to satisfy the aforesaid accom- 
 modation bills and notes now held by the bank, in 
 exoneration of the estate of the said George Barnes. 
 
 15. That it was the duty of the said defendant John 
 Taylor junior, to take up the said bills and notes when 
 they cariie to maturity ; and the time which the said bills 
 and notes had to run being now long past, without any 
 funds being provided by the said defendant to meet them, 
 and without his taking any steps to render his before- 
 mentioned securities available for that purpose; it is con- 
 trary to equity, as well as to the spirit and intent of the 
 agreement between the parties, as the plaintiff is advised, 
 that the estate of the said George Barnes, at all events, as 
 between that estate and the defendant, should remain any 
 lonn-er subject to any liability in respect of the said accom- 
 modation bills and notes. 
 
406 ' PLEADINGS. 
 
 16. That, subject to the rights of the London and County 
 Bank, the plain tiff as he is advised, has an equity to the benefit 
 of all the securities deposited with the bank by the said 
 defendant John Taylor junior, with reference to the afore- 
 said accommodation bills and notes. And he is entitled 
 not only to stand in the place of the bank for any payments 
 he may make, and to be recouped and reimbursed those 
 payments out of the proceeds of the securities, but also to. 
 have those securities at once made available towards the 
 exoneration of the estate of his late brother from the said 
 accommodation bills and securities. 
 
 17. That the said defendant John Taylor junior ought 
 to set forth the full particulars and value of all the secu- 
 rities deposited by him with the bank, in connection with 
 or with reference to the said accommodation bills and notes, 
 and whether any of such securities have been since with- 
 drawn or are now held by the London and County Bank 
 for other purposes. 
 
 18. That the said defendant John Taylor junior refuses 
 to come to any account with the plaintiff. 
 
 The plaintiff prays as follows: 
 
 1. That a general account may be taken of all the 
 dealings and transactions between the said George 
 Barnes and the said defendant John Taylor junior, 
 and particularly in respect of the before-mentioned 
 money transactions and lo.an^, and in respect of the 
 said accommodation bills and notes, and that the said 
 John Taylor junior may be ordered to .pay to the 
 plaintiff the amount wnich shall be found due in 
 respect thereof, with his costs of this suit. 
 
 2. That the said defendant may be decreed to satisfy 
 and discharge the said accommodation bills and notes 
 held by the bank, and to exonerate the estate of the 
 said George, Barnes therefrom, and that the said 
 defendant may be ordered, with the consent or without 
 prejudice to the rights of the said baiik, to realize 
 the securities given by him to the bank as aforesaid, 
 and to apply the . proceeds towards meeting the said 
 bills and notes. 
 
 3. That the plaintiff may have such further or other 
 relief as the nature of the case may require. 
 
 The defendant to this Bill of Complaint is, 
 John Taylor junior. 
 
 (Name of Counsel). 
 
 F. Sims Williams; 
 
INDEX. 
 
 ABATEMENT by death of plaintiff, where defendant may apply for supple- 
 mental decree, 56. 
 where before decree, supplemental order not made under 5'2nd section, 
 15 & 16 Vict. c. 86,-60. 
 ABSENCE of necessary party, when mortgagor bound by foreclosure decree 
 
 notwithstanding, 319. 
 ABSENT PARTIES to be served with notice of decree, 248. 
 
 decision not binding on, 278. 
 ABSTRACT of title to be laid before conveyancing cbunsel before sale, 186. 
 when, 348. 
 
 time for delivery of, to be specified in conditions of sale, 186. 
 ACCOUNT, special directions as to mode of taking, on interlocutory appli- 
 cation, 182. 
 form of order to account on cl^m by next of kin, Appendix of Forms, 203, 
 on claim of executor or administrator. Appendix 
 
 of Forms, 204. 
 on claim for account of partnership dealings, 
 
 Appendix of Forms, 209. 
 on claim by residuary legatee, Appendix of 
 Forms, 203. 
 , on claim by a legatee, Appendix of Forms, 202. 
 in decree for, interest to be computed on legacies without order, 298. 
 ACCOUNTS and inquiries, form of order directing, Appendix of Forms, 168. 
 ACCOUNTANT GENERAL to continue investments without fresh order, 
 
 298. 
 ACTION, leave still given on a proper case to bring, 294. 
 ADJODRNMENT to Court where any contest, 156. 
 from Court to chambers, 158. 
 of matters for consideration in Court, 335. 
 ADJUDICATING between some only of parties interested, 271. 
 ADMINISTRATOR ad Ktem, 36.^ 
 
 form of order against, to account, on claim by creditor of intestate, Appendiit 
 of Forms, 201. 
 
 for account on claim of. Appendix of Forms, 204. 
 ADMINISTRATION, form of summons, Appendix of Forms, 158. 
 
 form of affidavit of service of summons for adminis- 
 tration of real or personal estate. Appendix of 
 Forms, 162. 
 of estate of married woman under testamentary appointment, form of 
 order for, Appendix of Forms, 184. 
 
408 , Index. 
 
 ADMINISTRATION of charities, practice on petitions for, 328. 
 summons for administering personal estate, 330. 
 summons, duplicate to be~ filed in record office, 330. 
 order on summons as to directing special inquiries in, 333. 
 ADVERTISEMENT, form of order for, Appendix of Forms, 169. 
 AFFIDAVIT, what, necessary, to appoint a guardian ad litem, 32. 
 not to be taken before solicitor in the cause, 153. 
 of service of summons originating' proceedings at Judges' chambers not 
 
 being an adipinistration summons. Appendix of Forms, 164. 
 when may be used, though evidence taken orally, 223. 
 of service of summons for proceedings at Judges' chambers in a suit, 
 
 Appendix of Forms, 1 65. 
 as to production of documents, form of, Appendix of Forms, 1 73. 
 of service of bill or claim, or of an amended bill or amended claim on 
 defendant where he has not appeared to the original bill or claim, form 
 of. Appendix of Forms, 1.19. 
 of service of amended bill or amended claim on defendant or his solicitor 
 where he has Appeared to the original bill or claim, form of. Appendix 
 of Forms, 160. 
 of delivery of interrogatories for examination of plaintiff or defendant, 
 
 form of. Appendix of Forms, 161 . 
 verifying engrossment of conveyance as settled by conveyancing counsel, 
 
 form of, Appendix of Forms, 183. 
 what notice of when filed before issue joined, 234. 
 what notice of cross-examining witness who has made, 236. 
 evidence, inquiry before Chancery Commissioners as to use of, 240. 
 AFFIDAVITS, plaintiff's, when not evidence, 125. 
 may be filed on motion for decree, 166. 
 list of, at foot of notice of motion for decree, 170. 
 time for filing, on motion for decree, 171. 
 admissible though evidence to be taken orally, when, 223. 
 not admissible, wh^n, 223. 
 in what form, 232. 
 
 as to particular facts when admissible, 233. 
 to be divided into paragraphs, numbered, 233. 
 sworn abroad, 236. 
 
 erasures in affidavits sworn abroad, 236. 
 
 Court takes judicial notice of affidavits sworn abroad, when, 237. 
 place where sworn should appear on the jurat, 238. 
 place of residence of deponent should appear on, 240. 
 ALTERATIONS in printed bill when may be written, 2. 
 AMENDMENT of bill, 39. 
 
 by additions on the paper interleaved, 43. , 
 when rejirint necessary, 43. 
 filing printed copies of, 39. 
 
 amending defendant's copy', practice abolished, 43. 
 ^serving prinied copies of, 39. 
 substituted service of, 45. 
 AMENDED BIIX OR CtrAIM to be'served, 39. 
 when bill may be amended, 40. 
 
 when claim may be amended to rectify clerical errors, 4 1 . 
 effect of, on injunction, 45. 
 
 order to amend generally obtained at chambers, 45. 
 introducing new case by amendment, 47, 
 materiality of amendments when to be shewn, 46. 
 
 statement annexed to bill, 48. See 16th, 64tb, 65th, 66th, 67th, 6f:th, 
 69th, 70th, and 71st General Orders of May 1845, and 7th, 8th, 9th, 
 and 44 th General Orders of August 1852. 
 appearance to, under former practice, 68., 
 service of copy of, 31. 
 
Index. 409 
 
 AMENDMENTS, time to answer amendments and exceptions together 
 
 under former practice, 69. 
 AMENDMENTS and supplemental matter to be served, wlien, 75. 
 
 wliat time to answer, 76. ' ■ ' 
 
 AMENDING BIIX after common injunction dissolved on merits, 153 
 AMEND, order to, without prejudice to injunction, 194. 
 AMENDED BILL, form of affidavit of service of, on defendant, where he 
 has not appeared to the original bill. Appendix of Forms, 159. 
 
 form of affidavit of service of, on the defendant or his solicitor where he 
 has appeared to the original bill. Appendix of Forms, 160. 
 AMENDED CLAIM, form of affidavit of service of, on defendant, where he 
 has not appeared to the original claim. Appendix of Forms, 159. 
 
 form of affidavit of service on, on the defendant or his solicitor where he 
 has appeared to the original claim. Appendix of Forms, 160 
 AMENDMENT of decree or order, 298. 
 ANNOYANCE, injunction in cases of, 151. 
 
 ANNUAL INCOME, order »for payment of, pending proceedings, 188. 
 ANSWER treated as affidavit when, sect, lix., 234. 
 
 to supplemental- matter, within what time, 74. 
 
 to amended bill under old: practice, within what time, 75. 
 
 traversing note, for default of answer to original or supplemental bill, 78. 
 
 exceptions to, for insufficiency, 81. 
 
 exceptions to plaintiff's, rules applicable to, 87. 
 
 of corporation under common seal, 141. 
 
 to amended bill after answer to original bill, within what time, 69. 
 
 frame of, 76, 
 . clerical error in, 77. 
 
 traversing note, after answer insufficient, 78. 
 
 lAust still be a full answer, 80. 
 
 to be deemed sufficient, when, 84. 
 
 is conclusive as to possession of documents, 138. 
 
 form of. Appendix of Forms, 157. 
 
 of one defendant not to be read against co-defendant without notice, 171: 
 ANSWERS still sworn according to ancient form of oath, 92. 
 
 sworn in the British colonies or foreign countries, .93. 
 _f exceptions to, as to books and papers not encouraged, 140. 
 ■^APPEARANCE, 28. 
 
 practice as to, the same on claims, as on bills, 28. 
 
 within what time sect, 29th General Order of May 1845, p. 21, 28. 
 
 consequences of not appearing, 28, 29. 
 
 entering appearance for defendant to original bill, 2 1. 
 
 entering, for defendant to bill of revivor or supplement, 58, 59. 
 
 injunction not now granted for default of, 1 45. 
 
 not to be entered, when, 58. 
 
 must be entered, when, 59. 
 
 eight days limited for, 62. 
 
 to amended bill under former practice, 68. 
 APPLICATION, to appoint representative, where made upon notice, 'i\. 
 
 for enlargement of time to be made at chambers, 74. 
 
 by plaintiff for production of documents, 1 29. 
 
 by defendant for production of documents, 130. 
 
 for several objects, when must be made in open Court, 328. 
 APPLICATIONS in the first instance to be made at chambers, 132. 
 
 at chambers, various forms of, 338. 
 APPOINTMENT of receiver by consent to be at chambers, 156. 
 
 of receiver at instance of party having legal estate, 157. 
 
 form of order for administration of estate of married woman under testa- 
 mentary, Appendix of Forms, 184. 
 
 of new trustees, form of order for, Appendix of Forms, 210. 
 
 / /A/Vu\ij ren 
 
 5^ 
 
410 Indem. 
 
 APPOINTMENT of new trustees in suits for, not necessary to have all cesiuis 
 
 qm (rust parties, 263. 
 ARRANGEMENT as to part of testator's estate will be carried into effect 
 
 by Court, without administering the whole estate, 279. . 
 ARREARS of interest, not a charge on land after six years, 316. 
 
 may be tacked against heir of mortgagor for twenty years, when, 316. 
 ATTENDANCE of Common Law Judge, how obtained, 293. 
 AUTHORITY by next friend to institute suit, form of, Appendix of Forms, 
 
 178. 
 
 BILL OF COMPLAINT, U 
 to be printed, 1. 
 
 how to be printed, 1st General Order, August 1852,- p. 2. 
 written alterations in, 2. 
 written bill when filed, 3. 
 when taken off the file, 5. 
 
 clerk of records and writs to take written bill off the file, 5. 
 bill for ne exeat regnOy 3. 
 service of, 18. 
 
 substituted service of, sect. 5, p. 30. 
 frame of, sect. 10, p. 1 0. 
 conciseness, sect. 10, p. 11. 
 vagueness in, II, 
 how copy authenticated, 18, 31. 
 to contain concise narrative of facts, sect. 10, p. II. 
 undertaking of solicitor to file printed copy, 3, 6. 
 to pray specific and general relief, 3. 
 effect of service of copy, 18. 
 
 mode of service of, 18. i 
 
 affidavit of service of, when dispensed with, 19. 
 form of. Appendix of Forms, 154. ^ _ 
 
 form of affidavit of service of amended bill. Appendix of Forms, 159, 160. 
 form of indorsement on, Appendix of Forms, 153. 
 printed bill, 2. 
 in pica type leaded, 2. 
 delivery of printed copies, 4. 
 written copies, no costs of, 4. 
 written, only in urgent cases, 4. 
 defendant may demand copies, 6. 
 rate of charge for copies, 7. 
 defendant to have ten copies, 7. 
 endorsement on, 7. 
 endorsement on, may be altered, 7. 
 stamp on, 8, 
 by next iViend, 8. 
 by relator, 8. 
 written retainer for, 9. 
 interrogatories not inserted in, 10. 
 conciseness in, II. 
 distinctness of statement in, II. 
 certainty of averment in, 12. 
 misjoinder in, 13. 
 
 formerly dismissed for misjoinder, 14. 
 present practice as to misjoinder in, 15. 
 no writ of suhpana on, 17. 
 
 to be served with endorsement and proper stamp, 17. 
 motion to taks off the file for irregularity, 189. 
 when defendant may move for dismissal of, 192, 193, 194, 195. 197. 
 
Index. 411 
 
 BILL, dismissal of, on plaintiff's own application, 199. 
 
 cannot be dismissed by plaintiff after demurrer overruled, '200. 
 
 dismissal of, in cases of abatement, 201 . 
 
 costs on dismissal of, in cases of abatement, 201. 
 
 preferable to special case under Sir 6. Turner's Act, 276. 
 
 affidavit of service of, on defendant, who has not appeared. Appendix of 
 Forms, 159. 
 
 amended affidavit of service of, on defendant, who has not appeared, 
 Appendix of Forms, 1 59. 
 
 amended, affidavit of service on solicitor of defendant, who has appeared. 
 Appendix of Forms, 1 60. 
 
 motion for decree applies.only to bill, not to claim, 173. 
 BONDS of railway companies, investment of trust monies on, 339. 
 BUSINESS transacted at chambers, nature of, 324. 337. 
 
 at chambers, to he carried on in conjunction with Court business, 334. 
 
 • 
 CASE for relief under the old practice, declaratory decree made only in such 
 
 cases, 273. 
 special, practice vfhere question raised by, 274. 
 special, under Sir George Turner's Act, Bill preferable to, 276. 
 of the Birkenhead Dock Company, 285. 
 CASES, in which bill will be dismissed for want of prosecution, 197. 
 of abatement, dismissal of bill in, 201. 
 where formerly sent to law, where now, 290. 
 instances where, sent for the opinion of a Court of law under former 
 
 practice, 292. 
 Table of, xxiii. 
 CAUSE set down to avoid dismissal of bill, 194. 
 
 being set down for further consideration, form of notice of, Appendix 
 
 of Forms, 179. 
 being set down for further consideration, form of affidavit of service of, 
 
 Appendix of Forms, 131. 
 defendant may set down instead of moving to dismiss, 199. 
 setting down on objection for want of parties abolished, 250; 
 to be mentioned again to Court, when deed ready for execution, 349. 
 for further consideration, form of request to set down. Appendix of 
 
 Forms, 179. 
 defendant may set down, instead of moving to dismiss, 199. 
 setting down, 250. 
 CAUSES, motions for decree to be beard as, 170. 
 CERTIFICATE, form of, under order naming a person to be receiver, 
 
 Appendix of Forms, 175. 
 of chief clerk. Appendix of Forms, 169. 
 
 of chief clerk, of amount due on riiortgage. Appendix of Forms, 182.. 
 by chief clerk, of good title shewn, Appendix of Forms, 1 82. 
 by chief clerk, of the result of sale. Appendix of Forms, 185. 
 special, of chief clerk, where cause a^ourned to Court for argument after ' 
 
 examination of witnesses, and no report made on the evidence, Ap- 
 pendix of Forms, 187. 
 CESTUIS QUE TRUSTS, not necessary parties in foreclosure suits, where, 
 
 252. 
 when all must generally be parties in foreclosure suits, 253. 
 infants and persons entitled to derivative and subordinate interests 
 
 dispensed with, when, 254. 
 all must generally be parties, 25H. 
 CHAMBERS, powers exercised by Master transferred to Judge at, 336. 
 what kinds of business transacted at, 337 
 form of order for transferring cause to chambers, from Master, 342. 
 
412 Index. 
 
 CHAMBERS, form of M-ders in mattoi's, originating at, 345. 
 nature of business to be transacted at, 324. 
 Judge at, to have same jurisdiction in respect of matters heard there, as in 
 
 open Court, 334. 
 mode of drawing up orders at, 335. 
 
 orders made at, to have same effect as orders made in Court, 335. 
 transfer made by consent to, instead of giving special directions, 184. 
 what applications made at, what in open Court, 328. 
 form of affidavit of service of summons for proeeodings at, in suit. Ap- 
 pendix of Forms, 165. 
 application for enlargement of time to be made at, 74. 
 CHANCERY COMMISSIONERS, inquiry before, as to use of aflBdavit 
 
 evidence, 240. 
 CHANGES of interest, what contemplated by 52nd section of 15 & 16 
 
 Vict. u. 86, p. 51. 
 CHARGE, arrears of interest, not a charge on the land beyo.nd six years.' 
 CHARITTfiS, practice on petitions for administration of, 328. 
 
 316. 
 CHATTELS, form of order on sheriff to withdraw from possession of chattels 
 
 claimed by receiver, 341. 
 CHIEF CLERK, jurisdiction of as to summoning parties and witnesses, 336. 
 proceedings taken by, under decrees or decretal orders, 337. 
 judge to direof what matters shall be heard before, 325. 
 makes order without personal direction of Judge, where, 327. 
 form of summons by, for witness or party to attend to be examined. 
 
 Appendix of Forms, 178. 
 form of summons by, Appendix of Fotms, 1 67. 
 form of affidavit of service of summons originating proceedings at, not 
 
 being an administration summons. Appendix of Forms, 1 64. 
 form of certificate of. Appendix of Forms, 169. 
 vivA voce examination before, or examiner, 231. 
 CHIEF CLERK'S CERTIFICATE of amount due on mortgage, form of. 
 Appendix of Forms, 1 82. 
 of result of sale. Appendix of Forms, 185. 
 
 form of decree on further directions upon, Appendix of Forms, 188. 
 CONVEYANCING COUNSEL, form of affidavit, verifying engrossment of 
 conveyance as settled by. Appendix of Forms, 1 83. 
 form of order of reference to Taxing Master to settle fees of, 342. 
 abstract of title to be laid before, 348. 
 
 engrossment of deed as settled by, to be produced in Court, S50. 
 abstract of title to be laid before, on sale of real estate under decree, 1 86. 
 COSTS of the day, where suit defective as to parties, 266. 
 COURSE taken where fact not proved that parties are out of the juris 
 
 267. ' diction, 
 
 CONDITIONS OF SALE, form of special condition, now used in, 347. 
 CLAIM, plaintiff in foreclosure suit, should inquire as to claims of subsequent 
 
 incumbrancers, 320, 
 COSTS, where plaintiff in foreclosure suit, does not inquire as to claims of - 
 
 subsequent incumbrancers; 32 1 . 
 COSTS, of demurrer, "72. 
 
 of plea, 73. 
 CLOSING the evidence, time of, 76. 
 CROSS BILL, examination in lieu of, 88. 
 
 COMMISSIONS, to take answers within the jurisdiction abolished, 91. 
 CLAIMS, practice on, the same as on bills, as to entering appearances, 
 108. 
 where multifarious, 109. 
 distinction between simple and special, 109. 
 filing special, ntinc pro tunc, 1 12. 
 
Index. 413 
 
 CLAIMS, iimendment of, 113. 
 
 forms of, Appendix of Forms, IRfl. 
 
 orders on. Appendix of Forms, 200. 
 motion for^decree does not apply to, 173. 
 form of order in administration claims by next of kin, 344. 
 old form of order on administration claim by next of kin not now appli- 
 cable, 344. 
 various forms of applications at, 338. 
 applications in the first instance to be made at, 132. 
 CLAIM, form of affidavit of service of, on defendant who has not appeared, 
 Appendix of Forms, 159. 
 amended, form of affidavit of service on defendant who has not appeared, 
 Appendix of Forms, 159. 
 CLAIM, by a legatee, form of order to account on, Appendix of Forms, 202. 
 by a residuary legatee, form of order to account on. Appendix of Forms, 
 
 203. 
 by next of kin, form of, order to account on, Appendix of Forms, 203. 
 by a legal or equitable mortgagee, form of order of foreeclosure on. 
 
 Appendix of Forms, 205. 
 form of, order for sale on. Appendix of Forms, 206. 
 
 order for redemption on. Appendix of Forms, 207. 
 order of reference of title on. Appendix of Forms, 208. 
 for appointment of new trustees, form of, order on, Appendix of Forms, 
 •210. 
 CONVEYANCE, as settled by conveyancing counsel, form of affidavit verifying 
 
 engrossment of. Appendix of Forms, 1 83. 
 CIRCUMSTANCES, special, sale of real estate not directed except "under, 
 
 302. 
 COMMON LAW JUDGE, practice now to obtain attendance of, 2!>3. 
 CREDITOR to attend proceedings, 340. 
 COMPANY, whether within the provisions as to production of documents, 
 
 HI. 
 CORPORATION, whether within the provisions as to production of docu- 
 ments, 141. V 
 COURTS of common law, jurisdiction of, in matters of injunction, 145. 
 CONTINGENT and future interests, declaratory decree not made in respect 
 
 of, 274. 
 C OURT more readily determines questions where decision sought for purpose 
 of immediately dealing with trust fund, 276. 
 form of order for payment of money into Court, under decrees for sale, 
 
 346. 
 of equity, not to send a case for the opinion of a Court of law, 288. 
 of law, provisions not retrospective against taking opinion of, 295. 
 may direct sale instead of foreclosure, 301. 
 what matters to be adjourned for consideration in, 335. 
 will now carry into effect an arrangement as to a part of a testator's pro- 
 perty, 279. 
 what applications made in, what at chambers, 328. 
 important questions to be discussed in, 334. 
 
 business to be carried on in conjunction with chamber business, 334. 
 may require the production and oral examination before itself of any 
 
 witness, &o., 214. 
 payment of money into, at the hearing, 181. 
 payment of money out of, 181. 
 
 may direct suit to be prosecuted in ordinary way, 170. 
 will not appoint two examiners, 208. 
 
 sometimes but rarely enters into the merits on motions to dismiss, 200. 
 takes judicial notice of affidavits sworn abroad, when, 237. 
 COURSE where witness too ill to attend, 211. 
 
414 IndeiD. 
 
 COMMISSION not necessary for examination of witnesses within the juris- 
 diction, 212, 
 CLERICAL error in depositions, 213. 
 COSTS, Court may determine as' to payment of, on examination of witnesses, 
 
 214. 
 on motion for decree, 177. 
 COLONIES, signature of registrar of deeds in the, must be proved, 237. 
 CONDITIONS OF SALE, time for delivery of abstract of title to be 
 
 speciSed in, 186. 
 CO-DEFENDANT, answer of defendant not to be read against, without 
 
 notice, 171. 
 COPIES, expenses of examining. Appendix of General Orders^ 147. 
 COtIRS E, after demurrer overruled, as to plaintiffdismissing his own bill, 200. 
 COSTS, on dismissal of bill after abatement, 201. 
 COSTS of plea, 73. 
 
 CLOSING the evidence, time of, 76, 211. 
 CLERICAL ERROR in answer, 77. 
 
 CROSS-EXAMINING witness who has made affidavit, what notice of, 235. 
 CROSS-EXAMINATION of plaintifiF, on motion for decree, 176. 
 what notice of, 1 77. 
 
 party who has made aCBdavit, what notice of, 236. 
 COUNSEL, evidence to be taken in presence of, 208. 
 COURSE now taken on re-investment in land of monies paid into Court under 
 
 Lands Clauses Act, 343. 
 
 DECLARATORY BILL preferable to a special case under Sir G. Turner's 
 
 Act, 276. 
 DECLARATORY DECREES AND ORDERS, no suit to be open to- 
 1 objection on the ground that a merely declaratory decree is sought, 
 
 271. 
 Court may now adjudicate between some only of the parties interested, 
 
 27J. 
 only mads where case for relief under the old practice, 273. 
 ' not in suits quia timet, 274. 
 
 nor in respect of future and cbntingent interests, 274. 
 
 practice where question raised by special case, 274. 
 
 in administration suits, the Court sometimes makes declarations as to 
 
 expectant and future interests, 275. 
 Court more readily determines questions, where decision sought with a 
 
 view to a present dealing with the property, 276. 
 some of the parties interested in each view of the question, must be before 
 
 the Court, 277. 
 decision not binding on absent parties, 278. 
 
 Court will now carry into effect an arrangement as to part of a testatbr's 
 property, without administering the whole estate, 279. 
 DECLARATORY DECREES, infants, out of the jurisdiction may be 
 served with notice of, 268. 
 time for service of notice of, 269. 
 entering memorandum of service of, 269. 
 DISSOLVING injunction, on motion for, answer to be treated as affidavit, 
 
 164. 
 DECREE, motion for, on expiry of time for answer, but before replication, 
 165. ' 
 affidavits may be used on, 166. 
 
 section 15 of Act 15 & 16 Vict. o. 86, retrospective, 169. 
 heard, as causes, 1 70. 
 costs on, 177. 
 
 time for filing affidavits on, 171. 
 one month's notice required, 170. 
 
Index. 415 
 
 DECREE, adding to. Appendix of General Orders, 94. 
 declaratory. See Declaratory Decrees, 
 list of affidavits at foot of notice, 170. 
 Court may direct suit to be prosecuted in ordinary way, 170. 
 motion for, answer of defendant not to be read against co-defendant without 
 
 notice on, 171. 
 to be entered with registrar at time of giving notice, 17.3. 
 application to set down, after month expired, 173. 
 applies only to bills, not to claims, 173. 
 
 ^Oth section of New Procedure Act 15 & 16 Vict. c. 86, applies to, 173. 
 cross-examination of plaintiff on, 1 74. 
 noUce required of examining witness on, 176. 
 witness must be summoned by subpoena before hearing of, 154, 
 DECREE, in administration suit, sale under, 258. 
 
 where sought against estate of deceased party, representative not 
 
 appointed, 37. 
 form of affidavit of seriricfe of, or notice of. Appendix of Forms, 180. 
 form of memorandum of service of. Appendix of Forms, 180. 
 against defendant after examining him as witness, 322. 
 on motion for, replication not necessary, 205. 
 for revivor, or supplemental decree, 50. 
 form of order by consent for prosecution of, at chambers, instead of 
 
 Master, Appendix of Forms, 188. 
 amendment of, 298. 
 enrolling, practice as to, 299. 
 for foreclosure, sale not directed after, 307. 
 not to contain recitals of previous proceedings, 296. 
 to provide for payment of legacy duty, 297. 
 
 supplemental, not under 52nd section of 15 & 16 Vict. u. 86, where abate- 
 ment before decree, 60. 
 DECREE of foreclosure, when mortgagor bound by, notwithstanding absence 
 
 of necessary party, 319. 
 DECREES, or decretal orders, proceedings at chambers under, 337. 
 DECLARATION, as to expectant and future interests, 275. 
 DOUBTFUL TITLE, receiver not generally appointed in such cases, 159. 
 DISCHARGING receiver, on motion for, answer to be treated as afiSdavit, 
 
 164. 
 DRAWING UP, orders made at chambers, 334. 
 
 DELIVERY of interrogatories for examination of plaintiff or defendant, what 
 sufficient, 64. 
 of interrogatories for examination of plaintiff or defendant, form of affidavit 
 of, Appendix of Forms, 161. 
 DEED, form of memorandum of approval of, by conveyancing counsel. 
 
 Appendix of Forms, 183. 
 DEBT, form of order for payment of. Appendix of Forms, 200. 
 DEFECTIVE, costs of the day, where suit is, 266. 
 DISPENSED with, where parties may be, on sale of real estate, 247, 254. 
 DAY, costs of, 266. 
 DEMUR, time to plead, answer, or, not demurring alone, under present 
 
 practice, 74. 
 DBMIJRRER, traversing note on overruling, 79. 
 
 to amended bill within what time, after answer to original bill, 69. 
 DEFAULT of answering original or supplemental bill, filing traversing note 
 upon, 78. 
 of answering amended bill, upon, 78. 
 DEEDS, in the colonies, signature of registrar of, must be proved, 237. 
 DEPOSITIONS, original, to be transmitted to record office, 213. 
 
 clerical error in, 213. .„,..„ 
 
 DEPONENT, places of residence of, should appear in affidavit, 240. 
 DECISION, not binding on absent parties, 278. 
 
416 Index. 
 
 DELIVERY of printed copies of bilt, 4. 
 ■ DEFENDANT, application by, for prodijction of documents, 130. ■ 
 
 form of affidavit of delivery of interrogatories for examination of, Appcn- 
 
 dixof Forms, 161. 
 not being required to answer, and not answering, may move to dismiss bill 
 
 for want of prosecution, 1 92. 
 absconcUng, what notice of filing replication, on, 206. 
 may set dpwn cause instead of moving to dismiss, 199. 
 answer of, on motion for injunction or receiver to be treated as affidavit, 
 
 234. 
 may demand copies of printed bill, 7. 
 when, may apply to revive suit, hi. 
 when at liberty to apply for supplemental decree, 57. 
 out of the jurisdiction, when substituted service within jurisdiction, 59. 
 may answer without leave, whether required or not, 66. 
 not to plead, answer or demur without special leave, after service of 
 ■ trayersiijg note, 80. . _ - 
 
 . to stand committed for want of answer, when, 85. 
 what notice of cross-examination of, 177. 
 DELIVERY, of interrogatories, what sufficient, 64. 
 
 of.abslract, time for, to be specified in conditions of sale, 186. 
 DISCOVERY, costs of, 91. 
 
 DISTINCTNE SS of statements in bill, 11. , 
 
 DISMISSAL of bill, for want of prosecution after three months from appear- 
 ance, 192; 
 on plaintiff's own application, effect of, 199. 
 ,• incases of abatement, ^1. 
 DISMISS, when motion to, .premature, !9S. 
 DEED, as settled by conveyancing c°nnsel produced in Court, 195. 
 
 engrossment of, 350. 
 DEPOSIT of-deeds, equitable mortgage by, 317. 
 
 ehoilld be always accompanied with written memorandum, 317. 
 DIRECTIONS, special, as to mode of taking account, on interlocutory appli- 
 cation, 182. 
 instead of special, as to taking account, transfer of cause made by consent 
 to chambers, 18'1. 
 DECISION, of points in cause, applications for sale of real estate not to be 
 
 made with a view to, 187. 
 DEMUftRER overruled, plaintiff cannot dismiss his bill by order of course 
 
 after, 200. 
 DOCIJMENTS, production of, application by plaintiff for, 129. 
 application by defendant for, 130. 
 application for may be made before answer and before interrogatories 
 
 filed, 130. 
 order for, made when, 130. 
 
 when hot made, 131. 
 application for, in first instance' made at chambers, 132. 
 order in M'/niosh v. Great Western Railway Company ^ as to, 136. 
 answer conclusive as to possession of, 138. 
 
 to exclude plaintiff's affidavit, answer must be unambiguous, ienibh, 140. 
 whether a company or corporation, within provisions as to, qutere, 141. 
 form of summons for, at Judge's chambers, Appepdix of Forms, 1-71. 
 production of, form of order for, at record and writ office, A ppendix of 
 
 Forms, 172. - 
 
 form of order for, at solicitor's office. Appendix of Forms, 1 72. 
 form of affidavit as to. Appendix of Forms, 173. 
 exceptions to answers as to, not encouraged, 140. 
 order required to get, from record office, 142. 
 DOCUMENTS, general order as to expenses for examining copies of, 
 Appendix of Forms, 147. 
 
Index. 417 
 
 EIGHT DAYS for defendant to appear, 28. 
 ENTERING appearance for defendant, 30. 
 
 appearance on revivor not necessary, 58. 
 
 appearance to supplemental bill, 59. 
 
 appearance, when necessary, 59. 
 
 appearance, when not necessary, 58. 
 
 appearance on claims the same as on bills, 108. 
 ENLARGEMENT of time to answer, 74. 
 ERROR, clerical, in answer, 77. 
 EVIDENCE to be taken in presence of the parties counsel and solicitors, 208. 
 
 to be closed, when, 211. 
 ERROR, clerical, in depositions, 213. 
 EVIDENCE, though taken orally, affidavits admissible, when, 223. 
 
 where conflicting, claim not applicable, 115. 
 
 plaintiff 's affidavits not evidence except in unopposed cases, 125. 
 
 oral, of witnesses on motion, 154. 
 
 expiry of time on holidSy, 27. 
 
 affidavit evidence, inquiry before the Chancery Commissioners as to the 
 use of, 240. 
 
 extracts from parish registers now made evidence without verification, 244. 
 EQUITY, Courts of, not to send a case for the opinion of a Coiirt of law, 288. 
 ENLARGEMENT OF TIME, applications for, to be made at cham&ers, .74. 
 EVIDENCE taken in old suits, how, 224. 
 
 ENGROSSMENT, of deed as settled by conveyancing counsel produced in 
 Court, 350. 
 
 of conveyance as settled by conveyancing counsel, form of affidavit verift'- 
 
 ing. Appendix of Forms, 1 83. ' , 
 
 ESTATE of^a married woman under a testamentary appointment, form of 
 
 order for administering. Appendix of Forms, 184. 
 ENROLLING DECREE, practice on, 299. 
 ENTERING memorandum of service of decree, 269. 
 EQUITABLE mortgage by deposit of title deeds, 317. 
 ESTATE, real, interlocutory order for sale of, 185. 
 
 former practice as to sale of, 185. 
 ERROR in answer, clerical, 77. 
 EVIDENCE subsequent to the hearing,,236. 
 
 how to be taken, plaintiflF to give notice, 207. 
 
 to be oral if any party desires it, 208. 
 ERASURES in affidavits sworn abroad, 2;J6. 
 EXCEPT, plaintiff has six weeks to, 75. 
 EXCEPTIONS to answer for insufficiency, 81. 
 
 setting down, 83. 
 
 to be deemed abandoned, when, 86. 
 
 to plaintiff's answer, rules applicable to, 87. 
 
 for scandal, 83. 
 
 time to answer, together with amendments under former practrce, 69. 
 
 for impertinence, pendency of, did" not prevent dismissal of bill under old 
 practice, 197. 
 EXCEPTING, though time for has not expired, leave given to file interroga- 
 tories, 87. 
 EXAMINATION of plaintiff, interrogatories for, 87. 
 
 of plaintiff, cross bill in lieu of, 88. 
 
 vivi voce directed now on claim, instead of dismissing with liberty to 
 file bill, 122. 
 
 viva voce on claim, 124. 
 de bene esse within the act, 209. 
 
 of witnesses within the jurisdiction, no commission necessary for, 212. 
 oral, not directed ,after decree made in old form under former practice, 230.' : 
 EXAMINERS, Court will not appoint two, 208. 
 EXAMINER ^SPECIAL) appointed, when, 209. 
 
 E E 
 
418 Indec?. 
 
 EXAMINER OR CHIEF CLERK, vivi voce exBminatibnbefore, 231. 
 EXECUTORS, not directed to admit assets, or otherwise assets to be taken, 
 53. - ' 
 
 EXHIBITING further interrogatories, under former practice, 65. 
 
 FILING replication, where an absconding defendant, what notice of, 206. 
 FILE, motion to take bill off, 1 89. 
 FURTHER indulgence will be given, 193. 
 
 consideration, form of request to set down cause for, Appendix of Forms, 
 
 FRAME of answer, 76. 
 FORM of affidavits, 232. 
 
 of replication, Appendix of Forms, 204. 
 FILING REPLICATION; issue to be joined by, 204. 
 
 though no answer, 204. 
 PpRECLOSURE, suits for, where ceatui$ que truatnot necessary parties in, 252. 
 
 see)£ing sale, 253. 
 
 when all cestuis que trust must generally be parties in, 253. 
 
 on claim by a legal or equitable mortgagee, order for, 204. 
 
 sale hot directed after decree for, made under the old practice, 307 . 
 . not granted under prayer for sale, lembh, 315. 
 
 decree, mortgagor, when bound by, though parties absent, 319. 
 
 of indorsement on bill, of complaint, Appendix of Forms, 153< 
 indorsement on claim. Appendix of Forms, 153. 
 bill. Appendix of Forms, 154. 
 interrogatories. Appendix of Forms, 156. 
 answer. Appendix of- Forms, 157. 
 administration summons. Appendix of Forms, 158. 
 order directing accounts and inquiries. Appendix of Forms, 168. 
 replication. Appendix of Forms, 150. 
 affidavit of service of bill or claim,'br of an amended bill or amended 
 
 claim on defendant, where he has not appeared to the original bill or 
 
 claim, Appendix of Forms, 159. 
 affidavit of service of an amended bill or amended claim on the defendant 
 
 or his solicitor, where he has appeared to the original bill. Appendix 
 
 of Forms, 160. 
 affidavit of delivery of interrogatories for the examination of plaintiff or 
 
 defendant, Appendix of Forms, 161. 
 affidavit of service of summons for administration of real or personal 
 
 estate, Appendix of Forms, 162. 
 summons by chief clerk for witness or party to attend to be examined, 
 , Appendix of Forms, 178. 
 
 anthority by a next friend to institftte a suit, Appendix of Forms, 178. 
 request to set down cause for further consideration. Appendix of Forms, 
 
 179. 
 notice of cause being set down for further consideration, Appendix of 
 
 Forms, 179. - ' 
 
 affidavit of service of decree or notice of decree, Appendix of Forms, 
 
 180. 
 memorandum of service of decree. Appendix of Forms, 180. 
 affidavit of service of notice of cause being set down for further con- 
 ; sideration. Appendix of Forms, 181. 
 
 chief clerk's certificate of amount due on mortgage, Appendix of Forms, 
 
 182. 
 certificate of good title shewn, and when. Appendix of Forms, 1 82. 
 affidavit verifying engrossment of conveyance, as settled by con- 
 veyancing counsel. Appendix of Forms, 1 83. 
 memorandum of approval of deed. Appendix of Forms, 183. 
 
Index. 419 
 
 - FORMS ^.order for administering the estate of a married woman under a 
 testamentary power of appointment, Appendix of Forms, 184. 
 chief blerli's certificate of the result of sale. Appendix of Forms, 185. 
 chief clerk's special certificate, where cause adjourned' to Court for 
 argument after examination of witnesses, and no report made on 
 . the evidence, Appendix of Forms, 187. 
 
 order by consent on summons for prosecution of decree before Judge at 
 Chambers, instead of Master to whom cause stood referred, Appendix 
 of Forms, 188. 
 decree on further directions on chief clerk's certificate, Appendix of 
 
 Forms, 188. 
 order on petition. Appendix of Forms, 188. 
 claims. Appendix of Forms, 189. 
 orders on daims. Appendix of Forms, 200. 
 order for payment of a debt or legacy. Appendix of Forms, 200. 
 order on executor or administrator to account, on claim by a creditor of 
 
 testator or intestate. Appendix of Forms, 201. 
 order to account on claim by a legatee. Appendix of Forms, 202. 
 order to account on claim by & residuary legatee, or one of several 
 
 residuary legatees. Appendix of Forms, 203. 
 order to account on claim by next of kin or one of the next of kin of an 
 
 intestate. Appendix of Forms, 203. 
 order for account of personal estate of a deceased person on the claim of 
 
 the executor or administrator. Appendix of Foriits, 204. 
 order of foreclosure on claim by a legal or equitable mortgage. Ap- 
 pendix of Forms, 205. 
 order for sale on claim by a legal or equitable mortgagee, or person 
 
 entitled to a lien. Appendix of Forms, 206. 
 order for redemption on claim by persons entitled to redeem. Appendix 
 
 of Forms,, 207. . , 
 
 order of reference of title on claim of persons seeking specific per- 
 formance, Appendix of Forms, 208. 
 order for an account of partnership dealings and transactions on claim 
 
 of person entitled to the account. Appendix of Forms, 209. 
 order on claim by a person, claiming to use the name of his trustee, 
 
 Appendix of Forms, 209. 
 order on claim for the appointment of new trustees; Appendix of 
 
 Forms, 210. 
 summons, ordinary, Appendix of Forms, 166. 
 summons by chief clerk. Appendix of Forms, 167. 
 order for advertisement. Appendix of Forms, 169. 
 certificate of chief clerk. Appendix of Forms, 169. 
 affidavit as to production of documents. Appendix of Pormsj 173j 
 order to appoint receiver under an order of Court directing a proper 
 
 person to be appointed. Appendix of Forms, 174.. 
 certificate under an order naming a person to be receiver. Appendix 
 
 of Forms, 175. "» 
 
 receiver's recognizance. Appendix of Forms, 176. , 
 FORMER practice, declaratory decree only made, where case for relief 
 
 under, 273. 
 FUTURE and contingent interests, declaratory decree not generally made ni 
 
 respect of, 274. 
 FULL ANSWER, must still be put in, 80. 
 FILING, special claim, nunc pro tune, 1 12. 
 interrogatories, 62. 
 
 interrogatories, leave given for, though time for excepting had not ex- 
 pired, 87. 
 written bill, 3. 
 printed claim, 3. 
 
 answer, no other formality required than on filing affidavits, 92. 
 
 B E 2 
 
420 Index. 
 
 FILE, taking bill off, 5. 
 FOBM of oath on answer, 92. 
 
 of order on abatement of suit, 50. 
 FORMALITY no more required on filing answer than on filing affidavit, 92.' 
 FRAME of answer, see 2Ist General Order of August 1852, p. 77. 
 
 * of bill, 10. 
 FURTHER time to file interrogatories, 64, 65. 
 
 interragatories, order to exhibit under former practice, 65. 
 
 oral examination of witnesses, 66. 
 
 GENERAL ORDERS; Appendix of Forms, 86. 
 
 decrees, expenses for entering. Appendix of Forms, 145. 
 
 copies, expenses for examining. Appendix of Forms, 1 47. 
 GUARDIAN ad litem, 22, 108. 
 
 where infant not required to answer, 32. 
 
 what affidavit necessary to appoint„32. 
 
 appointment of, 108. 
 
 to infant, 108. 
 
 to person of unsound mind, 103., 
 
 HAND MOTION only, on mere revivor, 55. 
 
 HEARING, evidence subsequent to, 236. 
 
 HOLIDAY, where time expires on, 27. 
 
 HUSBANDS of married women, cestuia que trust, must be parties, 127. 
 
 INJUNCTION, to stay proceedings at law now, like other special injunctions, 
 144. 
 
 not granted now for default of appearance, 145. 
 
 jurisdiction of Court of common law in matters of injunction, 145. 
 
 Comnlbn Law Procedure Act, 145. 
 
 Patent Law Amendment Act, 146. 
 
 inspection of machinery will be granted, when, 146. 
 
 injunction not granted where remedy at law, 1 47. 
 
 not of course, even where right established at law, 1 47. 
 
 Lord Redesdale's rules, 148. 
 
 restraining proceedings in foreign Courts, 149. 
 
 aiter a decree here proceedings in foreign Courts will be restrained, 150. 
 
 nuisance, in cases of, 1 50. 
 
 annoyance, in cases of, 151. 
 
 substituted service of injunction bill, 1 52. 
 
 common injunction, former practice as to, 1 52. 
 
 amending bill after the common injunction dissolved on merits, 153. 
 
 writ of ne exeat, 153. 
 
 common, 29. 
 
 on motion for, answer of defendant to be regared as an affidavit, 234. 
 
 not to be obtained on a claim, 114. 
 INVESTMENT and accumulation of dividends. Accountant General to 
 
 continue from time to time without firesh order, 298. 
 ISSUE JOINED, wljat notice of affidavit filed before. 234. 
 
 within nine weeks after, evidence to be closed, 212. 
 INTERROGATORIES, old mode of examining witnesses on, abolished, 206. 
 
 to be filed in the record office, 62. 
 
 form of, 63. 
 
 obtaining further time to file, 63. 
 
 what a proper delivery of, 64. 
 
 not to be filed without special lesve of Court, when, 64, 
 
Index. 421 
 
 IN TE RROGATORIES, may be filed before printed bill on the file, when, 65. 
 form of order, to exhibit farther interrogatories under old practice, 65. 
 for examination of plaintifi' by defendant, 87. 
 form of, Appendix of Forms, 156. 
 
 without special leave of Court, no further time to file, 64. 
 leave given to defendant to file, though time for excepting to his answer 
 
 had not expired, 87. 
 form of affidavit of delivery of, for examination of plaintiff or defendant, 
 
 Appendix of Forms, 161. 
 may be filed before printed bill on the file, when, 65. 
 INFANT, guardian adiitem appointed to, 108. 
 INDORSEMENT on bill, form of. Appendix of Forms, 153. 
 
 on claim. Appendix of Forms, 153. 
 INTERLOCUTORY application, special directions as to mode of taking 
 account, on, 182. 
 sale not directed on, but only at the hearing, 307. 
 order, for sale of real estate, 1 85. 
 INCUMBRANCERS, plaintiff in foreclosure suit should inquire of subse- 
 quent, whether they claim, 320. 
 subsequent, must be parties in foreclosiu-e suits, 1 26. 
 INTESTATE, form of order on administrator to account, on claim by a creditor 
 
 of, 201. 
 INTEREST, what changes of, contemplated by 52nd section of New Prooe-* 
 
 dure Act 15 & 16 Vict. c. 86, p. 51. 
 IMPORTANT QUESTIONS, to be discussed in open Court, 334. 
 INVESTMENT of trust monies in railway bonds, form of order for, 339. 
 INQUIRY, before Chancery Commissioners, as to use of, affidavit eyidencoi 
 240. 
 
 JURISDICTION, serving parties out of, under present practice, 30. 
 
 abolished, commissions to take answers within the, 91. 
 
 where defendant out of the, substituted service within it, 159. 
 
 of Judge at chambers, what, 334. 
 
 of chief clerk, as to summoning witnesses, iScc, 336. 
 JUDGES to direct what matters shall be heard before the chief clerks, 326. 
 JUDGE, where chief clerk makes order without personal direction of, 327. 
 
 practice now to obtain attendance of common law, 293. 
 JURAT, place where affidavit is sworn should appear on the, 238. 
 JUDGES' CHAMBERS, form of affidavit of service of summons' originating 
 proceedings at, not being an administration summons, Appendix of 
 Fonnsi 164.- 
 
 form of affidavit of service of summons for proceedings at, in a suit, 
 Appendix of Forms, 165. 
 JUDGE at chambers to have same jurisdiction as in open Court, 334. 
 
 powers exercised by Masters transferred to, 336. 
 
 transferring matter from Master to, 342. 
 
 LANDS' CLAUSES ACT, course now taken on reinvestment of monies 
 
 paid into Court under, 348. 
 LAND, arrears of interest not to be charged on, beyond six years, 316. 
 LEAVE to answer not necessary, whether defendant required to answer or 
 not, 66. 
 
 given to defendant to file interrogatories, though time for excepting to 
 answer had not expired, 87. 
 
 given to file special claim, when, 1 10. 
 
 when not necessary, to file claim. 111. 
 
 to file farther interrogatories, after what time necessary, 64. 
 
 given in a proper case however to bring action, 294. 
 
422 Index. 
 
 LEGAL RIGHT, Court may determine, with view to granting equitable relief, 
 
 288. 
 LAW COURTS, Courts of equity not to send cases for the opinion of, 288. 
 
 former practice as to sending cases for the opinion of, 292, 
 LAW, where cases formerly sent to, 290. 
 
 Court, provision against taking opinion of, not retrospective, 295. 
 LEGACY, form of order for payment of, Appendix of Forms, 200. 
 
 duty, decrees and orders to provide for the payment of, 297. 
 LEGATEE, form of order to account on claim by. Appendix of Forms, 202. 
 LEGAL personal representative, when dispensed with, 34, 
 
 when not dispensed with, 33. 
 LEGAL ESTATE, when receiver appointed, notwithstanding party applying 
 has, 157. 
 
 receiver not generally appointed, when party applying has, 1 57. 
 LEGAL TITLE, rule of Court not to interfere against, in appointing re- 
 ceiver, 15^. 
 LITEM, ad, administration, 86, 
 LUNAR months, 26, 
 
 LITIGATED questions, party clearly entitled, not to be embarrassed by, 302. 
 LIEN, form of order for sale, on claim by a person entitled to. Appendix of 
 Forms, 206. 
 
 MASTER, form of order by consent on summons for prosecutioh .of decree 
 before Judge at chambers, instead of Master to whom cause stood 
 referred. Appendix of Forms, 1 88, 
 MEMORANDUM, forniof, of service of decree. Appendix of Forms, 180. 
 
 of approval of deed, Appendix of Forms, 183. 
 MERITS on motion to dismiss, Court sometimes, but rarely enters into, 20p. 
 MESSENGER, oath of, dispensed with, 94. 
 MISJOINDER, 13. . 
 MONTHS, lunar, 26, 
 
 MORTGAGE, chief clerk's certificate of amount due on. Appendix of 
 Fotftis, 182, 
 by deposit of title deeds, equitable, 317, 
 MORTGAGEE, form of order of foreclosure on claim by legal or equitable, 
 Appendix of Forms, 205. 
 form of order for sale' on claim by legal or equitable, or'perspn entitled to 
 
 a lien, Appendix of Forms, 206, 
 in possession, case of, 1 59, 
 MORTGAGOR'S covenant, mortgagor jpay tack arrears pf interest for 
 
 twenty years in suit against the heir under, 316, :_^ 
 
 MORTGAGOR bound by foreclosure decree, notwithstandiijg absence of 
 
 parties, when, 319. - 
 
 MOTION, whether in Court or at chambers, 64, 
 
 for further time to file interrogatories, whether to be made in open Court, 
 
 64. 
 using oral evidence of witnesses on, 1 54. 
 in Court or at chambers, further time to file intferrogatories, whether 
 
 obtained by, qucere, 64, 
 when a hand, only, 55. 
 
 to dismiss. Court sometimes, but rarely enters into the merits on, 200. 
 MOVING to dismiss, defendant may set down the cause instead of, 1 99. 
 MULTIFARIOUS, claim wherfe, 109, 
 
 MOTION FOR DECREE, section 15 of stat, 15 & 16 Vict. c. 86, 
 retrospective 169, 
 heard as causes, costs on, 170. 
 time for filing, 177, 
 affidavits on, 171, 
 
Index. 423 
 
 MOTION FOE DECREE, one month's notice required, 170. 
 
 list of affidavits, at foot of notice, 170. ' 
 
 Court may direct suit to be prosecuted, in ordinary way, 170. 
 
 answer of defendant, not to be read against co-defendant without notice, 
 on. 171. 
 
 to be entered with registrar at time of giving notice, 173. 
 
 application to set down, after month expired, 173. 
 
 applies only to bills, not to claims, 173. 
 
 40th section of New Procedure Act 15 & 16 VicL c. 86, applies to, • 
 173. 
 
 cross-examination of plaintiff on, 174. 
 
 notice retjuired of examining witness on, 176. 
 
 on exjyiring of time for answer, but before replication, 165. 
 
 affidavit may be used on, 166. 
 MOTION for dissolving injunction on, answer to be treated as affidavit, 164. 
 MORTGAGEE in possession, as to appointing a receiver against, 159. 
 
 NEXT FRIEND, form of authority bv, to institute suit. Appendix of 
 
 Forms, 178. 
 NOTIC E, form o^ of cause set down for further consideration, Appendix of 
 
 Forms, 179. . 
 form of affidavit of service of, of cause being set down for further con- 
 
 sideralioD, Appendix of Forms, 181. 
 NEXT OF KIN, form of order to account on claim by, or one of several of 
 
 an intestate. Appendix of Forms, 203. 
 NEW TRUSTEES, form of order on claim for appointment of, Appendix of 
 
 Forms, 210. 
 NOTICE, where application made upon, 34. 
 of cross-examination, what, 177, 
 
 of filing replication where an absconding defendant, what, 206. 
 NEXT FRIEND, 8. 
 NEW PROCEDURE ACT, powers under the 40th section of, must not be 
 
 used for purpose of delay, 1 55. 
 
 OATH, of messenger dispensed with, 94. 
 
 ORAL EXAMINATION not directed after decree made in old form under 
 
 former practice, 230. * 
 
 ORAL, evidence to be, if any party desires it, 208. 
 ORALLY, when affidavits admissible though evidence taken, 223. 
 OLD PRACTICE, suits framed under, all must be parties, 262. 
 sale not directed after decree for foreclosure made under, 307. 
 as to time to answer amended bill, 75. 
 ORDERS made at chambers, as to mode of drawing up, 335. 
 on claims, 200. 
 
 of the 8th of May 1845, still regulate time to plead answer or demur, 67. 
 general expenses as to entering decrees, 145. 
 expenses for exaniining copies, 147. 
 ORDER made in chambers to have same eflect as orders made in Court, 335. 
 form of, for administering the estate of a married woman under a testamen- 
 tary appointment. Appendix of Forms, 184, 
 for revivor, how obtained, 50. 
 in what form, 50. 
 directing accounts and inquiries, form of. Appendix of Forms, 168. 
 for advertisement, form of. Appendix of Forms, 169. 
 form of, for production of documents at the record and writ office, Appen- 
 dix of Forms, 172. 
 form of, for production of documents at solicitor's office. Appendix ofForms, 
 
 172. 
 to appoint receiver under an order of the Court directing a proper person 
 to be appointed, form of, Appendix of Forms, 174. 
 
424 .. ' Index. 
 
 ORIGINAL BILL, time to answer. 78. 
 
 PAYMENT of money into Court at the hearing, without a motion, 18). 
 of money out of Court, 1 8 1 . 
 only on petition, 182. 
 
 of money into Court will be ordered on a claim, and production of docu- 
 ments, 127. 
 PREFIXED STATEMENT, 89. 
 PRIORITY OF SUIT, 90. 
 
 PRACTICE on claims the same as on bills, as to entering appearance, 108. 
 PRINTED BILL, 2. 
 PRINTED, claims always, before filed, 3. 
 PRINTED COPIES, delivery of, 4. 
 PLKAftlNGS, conciseness in, II. 
 
 PARIBH RJEGISTERS, extracts from, now evidence without verification, 244. 
 PERSON, service where defendant appears in, 31. 
 
 PERSONAL REPRESENTATIVE, legal, not dispensed with where he has 
 active dulies to perform, 33. 
 legal, when dispensed with, 34. ^ 
 
 PARTY, as to appointing representative where decree sought against estate of 
 deceased personally, 37. 
 ' PROBATE, is in dispute, representative not appointed where right to, 38. 
 PAIITIES, serving, out of the jurisdiction under present practice, 30. 
 
 infant cestitn <jue trust and persoo.s entitled to derivative and subordinate 
 
 interests, dispensed with, when, 254 
 in suits for executing trusts, as to, 256. 
 relating to breach of trust, 257. 
 sale under decree in administration suit, all cestuis que trust must generally 
 
 be, where, 258. 
 in suit framed under old practice all must be, where, 262. 
 not necessary in suits for appointment of new trustees to make all cestuis 
 
 que trust parties, 263. 
 where on objection taken, plaintiff amends his bill by adding, such parties 
 must be served^ 264. 
 " costs of the day where suit defective, as to, 266. 
 
 alleged to be out of the jurisdiction, where fact must be proved, 266. 
 course taken where fact is not proved, 267, 
 
 infants out of the jurisdiction may be served with notice of decree, 268. 
 Court may adjudicate between some only, 271. 
 some interested in each view of the case must be before Court, 271. 
 decision not binding on absent, 278. 
 to a claim, as to, 125. 
 
 in foreclosure suits, subsequent incumbrancers myst be, ,126. 
 husbands of married women, cestuis que trust, must be, 127. 
 PRACTICE, where question raised by special case, 274. 
 PETITIONS for administration of charities, practice on, 328. 
 PERSONAL ESTATE, administration summons for administering, 330. 
 PARTICULAR FACTS, affidavits as to, may be used, 233. 
 PARTY who has made affidavit, what notice of cross-examining, 236. 
 POWERS exercised by Masters transferred to Judge at chambers, 336. 
 PRODUCTION OF DOCUMENTS, Judge's summons for. Appendix of 
 Forms, 171. 
 at the record and writ office, order for. Appendix of Forms, 172. 
 application by plaintiff for, 129. 
 
 tjiay be made" before answer and before interrogatories filed, 130. 
 and 'jpayment of money into Court will be ordered on a claim, 127. 
 application by defendant for, 130. 
 •applications in the first instance to be made^t chambers, 132, 
 
Index. • 425 
 
 PRODUCTION OF DOCUMENTS, order will be made for, when. 130. 
 when not, 131. 
 order in M'Intoih v. The Great Western Railway Company, varied on 
 
 appeal, 136. 
 answer is conclusive as to possession of documents, 138. 
 to exclude the plaintiff's affidavit the answer must be unambiguous, 
 
 semble, 140. 
 exceptions to- answers as to documents not encouraged, 140. 
 whether a company or corporation within the act, quare, 141. 
 an order required to get docunients out of the record office, 1 43. 
 summons for. Appendix of Forms, 171. 
 
 order for, at the record and writ office. Appendix of Forms, 172. 
 order for, at solicitor's office, Appendix of Forms, 172. 
 form of affidavit as to, Appendix of Forms, 173. 
 PERSONAL ESTATE, form of affidavit of service of summons for admi- 
 nistration of. Appendix of Forms, 162, 
 PLAINTIFF cannot dismisB his bill by order of course after demurrer over- 
 ruled, 200. 
 in foreclosure suit should inquire of subsequent incumbrancers whether 
 
 they claim, 320. 
 has six weeks to except, 75. 
 time employed by, in giving security for costs, not reckoned in computation 
 
 of time.fo take a step in the cause, 27. 
 where abatement by death of, 56. 
 
 affidavits of, not evidence except in unopposed cases, 125. 
 to give, notice how he wishes evidence taken, 207. 
 interrogatories for examination of, by defendant, 87. 
 examination of, in lieu of cross-bill, 88. 
 must give seven days' notice, 207. 
 PLAINTIFF'S answer, same rules applicable where exceptions to, as where 
 exceptions to defendants, 87. 
 own application, effect of dismissal of bill on, 199. 
 PREFIXED STATEMENT, 89. 
 PRIORITY OF SUIT, 90. 
 POWERS under the 40th section under the New Procedure Act must not be 
 
 used for the purpose of delay, 155. 
 PARTY applying, haviug the legal estate, receiver not generally appointed, 
 157. 
 applying, having the legal estate, when receiver appointed notwithstanding, 
 157. 
 POSSESSION, case of mortgagee in, 159. 
 
 PROSECUTION, form of order by consent on summons, for prosecution of 
 decree before Judge; at chambers instead of Master, to whom cause 
 stood referred. Appendix of Forms, 188. 
 PETITION, form of order on. Appendix of Forms, 188. 
 PAYMENT,' form of order for, of a debt or legacy, Appendix of t'orms, 200. 
 PRACTICE, on enroHing decree, 299. 
 
 PRIORITIES, Court may direct sale instead of foreclosure, without de- 
 termining, 301. 
 PERSONAL ESTATE, form of order for account of, of a deceased person 
 
 on claim of executor or administrator, Appendix of Forms, 204. 
 PARTNERSHIP DEALINGS, form of order for an account of, on claim of 
 
 person entitled to the account. Appendix of Forms, 209. 
 PAPERS, delivery up of, 343. 
 
 PURCHASE MONIES into Court tinder decrees for sale, order for payment 
 of, 346. 
 
 • 
 
 RECEIVER, appointment of, by consent to be at chambers, 156. 
 
 originally appointed, or only substituted in case of vacancy, distinction, 
 where, 157. 
 
426 Index. 
 
 RECEIVER, not generally appointed where party applying has the legal 
 
 estate, 157. 
 
 where title doubtful, 159. 
 only appointed where plaintiff has a reasonable probability of success io 
 
 suit, 160. 
 order for, should state distinctly what the property is, 162.' 
 to give security, 163. 
 to have a salary, 164. 
 
 on motion to discharge, answer to be treated as affidavit, 164, 
 under order of Court, course of proceeding on the appointment of, 343. 
 on motion for, answer of defendant to be regarded as an afiidavit, 234. 
 ■form of order to appoint a, Appendix of Forms, 174. 
 certificate under an order naming a person to be. Appendix of Forms, 
 
 form of order appointing at chambers, made un^er decree or order of 
 Court directing a proper person to be appointed, 174. 
 
 form of certificate under an order naming a person to.be. Appendix of 
 Forms, 175. 
 RECEIVER'S RECOGNIZANCES, 163. 
 
 form of. Appendix of Forms, 176. 
 REPKESENTATIVE for the purposes of the suit, 33. 
 
 where application to appoint, made upon iiotice, 34. 
 
 not appointed where estate of deceased person forms the subject of the 
 suit, 36. '* 
 
 when sufficient, 37. 
 
 not appointed, where right to probate is in dispute, 38. 
 
 for obtaining money out of Court, 38. 
 
 not dispensed with, where he has active duties to perform, 33. 
 
 may be dispensed with, when, 34. 
 
 when administration ad Hum \i sufficient, 37. 
 REVIVOR or supplemental decree, 50. 
 
 form of, 80. 
 
 form of order, ,50. 
 
 or supplemental order, motion to discharge, 60. 
 RIGHT to begin on appeal claiins, the same as where suit by bill, 109. 
 REGISTRAlt of deeds jn the colonies, signature of, must be proved, 237. 
 RIGHTS OF. THE CROWN, where concerned, juore whether provisions 
 
 against sending cases to law apply, 295. 
 RECITALS of previous proceedings, decrees and orders not to contain, 296. 
 REPLICATION, to be filed though no answer, 204. 
 
 supplemental answer filed by consent without withdrawal of, 205. 
 
 not.pecessary where motioii for decree, 205. 
 
 what notice of filing on absconding defendant, 206. 
 
 form, of, Appendix ofForms. 159. 
 RECORD. AND WRIT CLERK, when bill taken off the file by, 5. 
 RATE of charges for copies of printed bill per folip, 7. 
 RELATOR, 8. 
 
 IlEeORD OFFICE, interrogatories to be filed in, 62. 
 RELIEF on claiins as on bills, secundum allegata et probata, 118. 
 
 .whsire relief would be granted under old practice. Court will now make 
 ■declaratbry decree, 273. 
 
 specific prayer for, 316. 
 REN'K-WAL of l^age may be obtained by summons, 329. 
 REAL ESTAl'E, foriti of affidavit of service of summons for administration 
 
 of, 162. 
 REQUEST, form of, to set down cause for further consideration, AppenUix of 
 
 JForms, 179. 
 RESIDUARY LEGATEE, form of order to account on claim by, Appendix 
 
 of Forms. 203. 
 RESULT of sale, chief clerk's certificate of. Appendix of Forms, Appendix of 
 Forms, 185. 
 
"* Index. iSn 
 
 REPORT, form of special certificate of chief clerk, where cause adjourned to 
 Court for argument after examination of witnesses, and no report made 
 OD the evidence, Appendix of Forms, 187; 
 
 RESIDUARY legatee, form of order to- account, on claim by, or by one of 
 several, Appendix of Forms, 203. 
 
 SALE, of real estate, interlocutory order for, 185. 
 former practice as to, 185. 
 
 abstract of title to be laid before conveyancing counsel, 186. 
 time for delivering of abstract, to be spteified in conditions of sale, 186. 
 order for, only made for protection of property, not to forestal decision of 
 
 points in the cause, 1 87, 
 special condition, now usually inserted in conditions of sale, Zil. 
 form of order for paymentjaf purchase monies under decree for sale, 346. 
 whether foreclosure granted under prayer for sale, 315. 
 Court may direct, instead of foreclosure, 301. 
 not directed, except under special circumstances, 302. 
 ' not directed after decree for foreclosure made under old practice, 307. 
 not directed against remaindermen in respect of charge created by tenant 
 
 for life, 310. 
 order for sale, on claim by legal or equitable mortgagee, form of. Appendix 
 
 of Forms, 206. 
 to be with approbation and under direction of judge, 848, 
 chief clerk's certificate of result of sale, form of. Appendix of Forms, 185. 
 SCANDALOUS matter expunged, 86. 
 SCANDAL, exceptions for, 82- 
 SECTION 52 only applies when usual order required, 53. 
 
 applies to claims as well as to bills, 55. 
 SECURITY to be given by receiver, 163. 
 
 SERVING parties out of the jurisdiction under present practice, 30, 
 SERVICE of copy of amended bill or claim, 31. 
 
 of amended bill or claim, where defendants has appeared to original bill, 
 
 affidavit of. Appendix of Forms, 1 60. 
 on solicitor of party suificient, when, 31 . 
 when defendant appears in person, 31. 
 affidavit of, of summons onginating pioceedings at chambers, not being an 
 
 administration summons. Appendix of Forms, 164. 
 affidavit of, notice of cause being set down for further consideration, 
 
 form of. Appendix of Forms, 181. 
 memorandum of service of decree, form of. Appendix of Forms, 180. 
 affidavit of service of decree or notice of decree, form of. Appendix of 
 Forms, 180. 
 SETTING DOWN cause for further consideration, form of request for, .179. 
 plea, 70. 
 
 motion for decree after time has expired, 173. 
 demurrer, 70. 
 claims, 114. 
 
 cause to avoid dismissal, 194. 
 
 cause, by defendant instead of moving to dismiss, 199. 
 cause, form of request to set down, for further consideration. Appendix 
 of 'Forms, 179. 
 SPECIFIC FERFORIMANCE, form of order of reference for title on claim 
 
 of person seeking, Appendix of Forms, 20. 
 SHERIFF, form of order for sh«iiff to withdraw, from possession of chattels, 
 
 claimed by receiver, 341. 
 SOLICITOR, when service on sufficient, 31. 
 SUMMONS, ordinary form of. Appendix of Forms, 166, 
 'by chief clerk, form of, Appendix of Forms, 167. 
 
428 Index.*'" 
 
 SUMMONS, Judge's, for production of documents, form of, Appendix of 
 Forms, 171. 
 administration summons), form of. Appendix of Forms> 153. 
 by cliief clerk, for witness or parties to attend to be examined, form of. 
 Appendix of Forms, 178. 
 SPECIFIC RELIEF, necessity of prayer for, 316. 
 SPECIAL inquiries, as to directing, in order for administration, 333.' 
 injunction, common injunction now assimilated to, 144. 
 directions as to mode of taking account, on interlocutory application , 
 
 1B2. > 
 
 transfer, made to Court, instead of giving special directions .as to ac- 
 count, 184. - 
 claims, distinctions between simple and special claims, 109. 
 claims, amendments of, 114. 
 
 order made, instead of merely allowing demurrer, where, 71. 
 inquiries, as to directing on a claim, 121. 
 
 case, practice where question raised by, 274. See also Introduction, 
 case, bill oreferable to, 276. 
 SUBSEQUENT INCUMBRANCERS, plaintiff in foreclosure suit should 
 inquire whether they'claim, 320. 
 _SUBPa<;NA, for witnesses to attend at hearing; of motion for decree, 154. 
 SUPPLEMENTAL matter, traverse of, where no answer required, 76. 
 decree, 501 
 not made under 52nd section 15 & 16 Vict. c. 86, where abatement before • 
 
 decree, 60. 
 bill, motion to take off the file, 189. 
 
 answer, filed by conseiit without withdrawal of replication, 205. 
 matter, time to answer, 74. 
 STATEMENT prefixed, 89. 
 SUBSTITUTED SERVICE, where defendant out of jurisdiction, 59. 
 
 when order made for, 30. 
 SUMMONS, administration summons, for administering personal estate, 
 330. - 
 
 duplicate to be filed at record pffice, 130. 
 SUMMONING witnesses by subpoena, before hearing of motion for decree, 
 
 154. 
 SUIT, priority of„90. 
 
 SUMMONS, form of affidavit of service of, for administration of real or 
 personal estate. Appendix of Forms, 162. 
 
 TESTATOR, form of order on executor to account, on claim by a creditor of, 
 
 Appendix of Forms, 201. 
 TITLE, certificate of good title shown, and when. Appendix of Forms, 
 182. 
 form of Older of reference of, on claim of persons seeking specific per- 
 formance, Appendix of Forms', 208. 
 TRUSTEE, form of order on claim, by a person claiming to use name of. 
 
 Appendix of Forrhs, 209. 
 TRUSTEES, new, form of order on claim, for appointment of, Appendix of 
 
 Forms, 210. 
 TAXING MASTER, reference to, for settling fees pf conveyancing" counsel, 
 
 342. 
 TIM!E, rules as to computation of, 26. 
 
 appearances to be entered within what, 25. 
 
 when expires on a holiday, 27. 
 
 to plead answer or demur, not demurring alone to supplemental bill, 
 
 68. 
 to plead answer or demur to amended bill, after answer to original bill, 
 
Index. , 429 
 
 TIME, within what, dqfendant to answer without leave, where no answer 
 
 required ,-67. 
 demurrer within what, 67. 
 to answer amendments and exceptions together, 69. 
 
 suppl^ental matter, 74. 
 applications for enlargement of, 74. 
 to answer amended bill under old practice, 75. 
 of closing the evidence, 76. 
 further, to 61e interrogatories, 64. 
 of vacation not to be reckoned, 27. 
 TRAVERSING NOTE, 78, 
 to be served, copy of, 79. 
 effect of, 79. 
 after service of, defendant not to plead answer or demur without special 
 
 leave, 80. 
 use of, now, 80. 
 
 UNSOUND MIND, in cases of, guardian ad litem appointed, 108. 
 
 VARYING ISSUE, 88 
 
 VIVA VOCE EXAMINATION, now, instead of dismissing claim, with liberty 
 to file bill, 122. 
 
 on a claim as to, 124. 
 
 before examiner or chief clerk, 231. 
 
 WILFUL DEFAULT, in cases of, leave necessary to file claim, 111. 
 WANT OF PROSECUTION, dismissal for, 197. 
 WITNESS, when too ill to attend, 211. 
 
 plaintiff may have decree against defendant examined as, 222. 
 
 Court may require production of, for oral examination, 214. 
 
 costs of examining, in open Court, 214. 
 
 no commission necessary for examination of, within the jurisdiction, 2 12. 
 
 old mode of exaniiniog, on interrogatories abolished, 206. 
 WITNESSES, form of special certificate of chief clerk where cause adjourned 
 to Court for argument after examination of, and no report made on 
 the evidence. Appendix of Forms, 187. 
 
 using oral evidence of, on motion, 154. 
 
 must be summoned by subpoena, before the hearing of motion for decree, 
 154. 
 WRITTEN, memorandum of deposit of deeds when wanting, 317. 
 
 bill, 3. 
 
 alterations in bill, 2. 
 
 retainer, 9. 
 
 claim cannot be filed, 3, 
 
 BAYHKn AND HOJlGBa, FBINTBRS, 
 109, PBTTBB LANS, LOIfBaif