■f^,T^*?yii ""^ Jn^A-^ ^';QW^'«Smi mIwOTTm TAT Qlortifll Kam ^rl|nol ICtbrary iHatfiljaU lEquttg (EoUcrttott (gift of IE. 31. MatsljaU. ffi-ffi. 1. 1894 CORNELL UNIVERSITY LIBRARY 3 1924 084 263 718 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924084263718 THE PRACTICE OF {jQ'l^r''] THE COURT OF CHANCERY FOR Ol!^TARIO. SOME OBSERVATIONS ON THE PLEADINGS IN THAT COURT. COMPILED BY WILLIAM LEGGO, OF OSGOODE HALL, BARRISTER-AT-LAW, LATE MASTER AT HAMILTON. IIsT T-WO "VOLTJI^IES. Vol. II. HAMILTON AND TORONTO. PUBLISHED FOR THE SUBSCRIBERS. 1876. PROCEEDINGS IN MORTGAGE SUITS. '985 CHAPTER XXIX. Section I. — Proceedings in Mortgage Suits. The practice in a suit for redemption, foreclosure or sale varies so widely from that adopted in England, that we must depend for information chiefly on the orders and decisions of our own Court. But before proceeding to the practice in the Master's office, a hrief notice of the general law relating to Mortgages will be nec- essary. Redemption is an equitable process by -w^hich a mortgagor, or other person interested in real or personal property subject to a mortgage or incumbrance, may recover or get the absolute owner- ship thereof, upon certain terms ; which are commonly the pay- ment of the principal sum due, with interest thereon, and the costs of the mortgagee. Foreclosure is (as to redemption) the converse, and generally the reciprocal ^ remedy, whereby the mortgagee, or other person enti- tled to the benefit of a mortgage or incumbrance, may acquire an absolute title to the incumbered property upon nonpayment, by the person entitled to redeem, of the amount secured thereon, in- cluding interest and costs. ' Wherever there is a right to foreclose, there must of necessity be a right to redeem, because foreclosure is in default of redemption ; and every decree to foreclose limits a time within which the estate may be redeemed. And the non- exercise of this right to redeem is commonly,'' but not necessarily, followed by foreclosure. In certain cases in which foreclosure would be inequitable or in- convenient, or at the request of one or more of the parties inter- ested, where the Court of , Chancery thinks fit to exercise its statu- tory power,^ a sale of the estate and distribution of the proceeds will be decreed instead of foreclosure. . 1 Longuet v. Seamen, 1 Vea. 403. 2 See Stokes v. Verrier, 3 Sw. 635, per Lofd Nottingham. 3 15 & 16 Vict. 0. 86, s. 48. 986 PROCEEDINGS IN THE MASTER'S OFFICE. The right, or equity of redemption has been described sometimes as an estate,^ and sometimes as an interest,^ or equitable right inherent' in the land ; and though strictly equitable, and capable of being enforced in equity alone, it is of so much consequence in the eye of the law, that the law takes notice of it, and makes it assignable and devisable.^ Like the estate itself, it passes by transfer and devise : may be impressed with, and then become subject to, the ordinary consequence of entails and other limita- tions : devolves, according to the tenure of the actual estate, upon the real or personal representatives of the owner : and is subject to gavelkind, borough English, and other customs which affect the ordinary legal ownership.'* The existence of a right of redemption does not necessarily de- pend upon any distinct agreement, but may be inferred from the nature of the transaction. It arises where property, or the evi- dence of property, have been transferred as a security for the pay- ment of money, or have come to the hands of a person subject to a condition to the like effect ; and where the nature of the trans- action is doubtful, the intention of the parties may sometimes be shown by extrinsic evidence, or may be ascertained by a jury,^ under an issue directed by the, Court of Chancery. It will be observed, that the statutory right to order a sale of mortgaged premises is referred to. The powers conferred on the English Court by that statute are vested in our Court by sec. 10 of 22 Vic. c. 12,^ which enacts that it shall have " generally, the like jurisdiction and power as the Court of Chancery in England possessed on the 10th June, 1857, as a Court of Equity to admin- ister justice in all cases in which there exists no adequate remedy at law." The Imperial Statute was passed in the session of 1852-3, and some of its provisions have been embodied in our Orders. The simplest form of redeemable contract is the common legal mortgage, by which real or personal property is conveyed by the mortgagor to the mortgagee, as a pledge or security for the debt ; 1 Casborne V. Scarf e, 1 Atk. 603. 2 Lloyd V. La^uter, 5 Mad. 290. 3 Per Hale, C. B., in Paiolett \. A.G., Bardres, 465, 469. 4 Fawcett v. Lowther, 2 Vcs. 304 ; Slake v. Foster, 2 Ba, & Be. 387 6 Wynne v. Styan, 2 Ph. 303. 6 Con. Stat. U. C. page 61. PROCEEDINGS IN MORTGAGE SUITS. 987 the conveyance being absolute in form, but subject to a proviso, by which it is to become void, or by which the pledge is to be recon- veyed, upon repayment to the grantee of the principal sum secured with interest on a certain day, which is usually fixed at the end of one year or less from the date of the security. Upon the nonper- formance of this condition, the mortgagee's estate becomes abso- lute at law, but remains redeemable in equity during a period limited by statute, and under the rules imposed by Courts of Equity. There are, besides, other forms of legal mortgage, now but little used, but to which it will be proper to refer. One of these is the Welsh mortgage, by which the estate is conveyed absolutely to the creditor, without condition ; the rents and profits being enjoyed by him in Ueu of interest. This kind of security differs greatly in its consequences, as well as in form, from the common mortgage ; because it carries a right to redeem, but none to foreclose ; for be- ing without condition, there can be no forfeiture,^ and it is after forfeiture that the mortgagor's right is barred by foreclosure.^ The possession of the mortgagee is of the very essence of the Welsh mortgage, and every receipt of rent is a receipt, by virtue of the contract, of so much interest. Hence, a Welsh mortgage was held to be redeemable under the old law of limitation, until the lapse of twenty years from the time when the mortgage was fully satisfied ; ^ and in this particular, it seems that the modern Statute of Limitations (3 &' 4 Will. 4, c. 27) has made no diiler- ence. A form of security, called a Bristol bargain, is also noticed in the older Eeports. In it, the bargain was for repayment of the debt and interest by instalments, at the rate &i 20L per annum for seven years for every lOOL advanced ; up to which point it was allowed, the legal rate of interest being then 61. per cent. But when it was attempted to increase the number of annual instal- ments to eight, it was declared that the agreement was against conscience, and that, if allowed, it might be carried on without 1 Bttlfe v. Lord, 2 Dru. & War. 480. 2 Bonham v. Newcoinb, \ Vern. 232. This language does not seem quite correct, because an equita- ble mortgagee may often foreclose, though there be no actual forfeiture, and even no condition, (264, 265.) But this is by analogy ; the equitable mortgag-ee being entitled to call for and to have the same remedy &s if he had obtained a legal mortgage. 3 Tates v. Jlambly, 2 Atk. 863 ; Longuet v. Scawen, 1 Ves. 403 ; Fenwick v. Beed, 1 Mer. 125. 988 PROCEEDINGS IN THE MASTER'S OFFICE. stint or bounds ;i and redemption was decreed on the usual terms of paying principal and interest. And it was said by Sir John Trevor, M. E., that he thought the Court would relieve against an ordinary Bristol bargain, viz., by the repayment by instalments for seven years.^ But since the repeal of the usury laws, it is probable that the courts would not interfere in such a matter, provided the transac- tion were not fraudulent. The absence in a common mortgage of the covenant for pay- ment of the debt, does not of itself affect the mortgage character of the transaction ; but it has been thought to be material where the instrument, not being a common mortgage, the absence of the covenant may be explanatory of the intention of the parties. Thus, in the case of a lease by the mortgagee to the mortgagor for a long term, at a rent, with a proviso for re-conveyance if the mortgage money and interest was paid within three years, the ab- sence of a covenant for repayment of the mortgage money was held to shew that after the three years the interest was to be irre- deemable, and that the intention was to purchase the interest ab- solutely by way of rent-charge ; and the transaction being fair, and different from an attempt tto fetter the redemption in the land itself, was upheld. ^ So a conveyance by a debtor to a trustee, the creditor being a party, in trust out of the annual proceeds to pay head rent and insurance premiums, and to pay creditors their principal and interest by instalments, and then to re-convey, and which contained no covenant for payment by the debtor was held * not to be a mortgage entitling the creditors to foreclosure or sale ; though, if there had been such a covenant, the decision would probably have been ojiherwise. And while the courts protect the bona fide purchaser against stale demands, or other pretence that only a mortgage was inten- ded, they also take care that a borrower shall not suffer from the omission in a deed or agreement, of the usual requisites of a mortgage, if those requisites have been omitted by positive fraud, 1 James v. Oades, 2Vem. 462. 2 Pulthrope v. Foster, 1 Vem. 477. 3 King v. King, 3 P. Wms. 358 ; Goodma/ii v. Grierson, 2 Ba.'&^Be. 278; Mellor v. Lees, 2 Atk. 494 ; Flayer v. Lavinfiton, 1 P. Wms. 268. 4 Taylor v. Emerson, 4 Dm. & War. 117. PROCEEDINGS IN MORTGAGE SUITS. 989 by mistake or accident. Therefore, they hold that an instrument, which purports to be an absolute conveyance, may be controlled in its effect by another, which contains an express stipulation for re- demption ;^ or refers to the property as being in mortgage ; or contains an agreement for a further loan ; ^ or by proof of pay- ment of interest,^ or other proper evidence that the original con- tract was only made by way of security. So, where the deed purported to be an absolute assignment, but there was an erasure of a proviso which remained partly legible, and the erasure was not accounted fort: the House of Lords held* that the instrument was a security, on the argument for the Crown that there was no ^oof of payment of the consideration, than which the value of the estate was at least four times greater ; and that the grantor had continued in possession, had made leases, and exercised other acts of ownership ; though, upon an issue the jury had found that the deed was duly executed, and though at first designed for a mortgage, had been afterwards altered to an absolute purchase. Again, if the deed contain a trust for sale on nonpayment of the consideration money by a day named, a redeem- able interest is inferred to have passed,^ though there be no pro- viso for redemption, but only for re-conveyance on payment of the principal and interest. It should, however, be observed, that the disproportion of value is not of itself a reason for construing an instrument as a mort- gage, but only where there were other circumstances tending to the same conclusion;^ though, on the ground of excess of value, it was adjudged in an early case, that a release of an equity of re- demption was made on a further trust, and did not bar the right of redemption.'^ So, if a mortgage were intended, but the mortgagee omit to in- sert the proviso for redemption, the mortgagor being a marksman, or if the mortgage were- intended to be made^ by way of absolute 1 Williams v Owen, 10 Sim. 386. 2 Sevier v. Greenway , 19 Ves. 413. 3 Allenby v. Dalton, 6 L. J., Oh. 312. i A. G.y. Crofts, 4Bro. P. C. 136. 6 JBell V. Carter, 17 Beav. 11 : 17 Jur. 478. 6 See Lord Nottingham's judgment in Thornborough v. Baker, 3 Sw. 631. So in case of an annuity, McGee v. Morgan, cited 2 Sch. & Lef. 395, disproving of Heathcote v. Paignon, 2 Bro. C. C. 167, 7 Morley v. Elways, Ca. & Cli. 107. 990 PROCEEDINGS IN THE MASTER'S OFFICE. conveyance and defeasance, but the grantee never executed the lat- ter, the grantor is allowed to shew the mistake.^ But Courts of Equity will not lightly infer an intention to make a mortgage, where none is expressed, especially where possession has gone with the conveyance, and there has been a long acquies- cence. Hence, a covenant by the grantor, not to make partition without the advice and consent of the grantee, has been held^ not to turn a conditional sale into a mortgage. A bill was filed against a trustee for an account and re-convey- ance. At the hearing, a decree was drawn up by consent, treating the defendant in all respects as a mortgagee : Held, upon appeal from the Master's report, that, from the time of the decree, the rights of the parties respectively must be determined by the rules ordinarily applicable to cases of mortgage.^ A creditor brought an action against his debtor to recover his demand, which was stayed by an arrangement made in October, 1840 : — the debtor assigned to the creditor the house and premises occupied by the debtor, when, in addition to the amount of the debt, a sum in cash was paid him, and for two years he continued to redeive the rent of the premises, when the creditor obtained possession by an action of ejectment. In December, 1855, the debtor filed his bill setting up that the transaction was a mortgage, alleging that his poverty had in the meantime prevented him from enforcing his claim : the Court, though inclining to dismiss the bill, directed an issue as to the question of mortgage or no mort- gage.* The enquiry granted in this case would, at first sight, seem to admit evidence, and necessarily parol evidence on the question of "mortgage" or "no mortgage," but it will be seen that the enquiry was granted with great reluctance, and perhaps from an overtendernesB to the plaintiff. The Master, under such a reference, would find Holmes v. Matthews,^ and 'Greenshields v. Barnhart,^ valuable guides. 1 3 Atk. 389; Maxwell t, Mountaoute, Pre. Ch. 627 ; Card v. Jaffray, 2 Soh. & Lef. 374. This was formerly, and especially in the north, a common way of effecting mortgages ; the two instruments be- ing read as a single deed ; Cotterell v. Purchase, For. 61 ; Spurgeon v. Collier, 1 Eden. 55. 2 Cotterell v. Purchase, For. 61. 3 Kerby v. Eerby, 5 Grant 687. 4 Watson v. Munro, 5 Grant 662. 5 3 Grant 379, and 6 Grant 1, in Appeal. 6 3 Grant 1, in Appeal. PROCEEDINGS IN MORTGAGE SUITS. 991 A person having a claim against the owner of a mill brought an action against his executors and recovered judgment ; an execu- tion against lands was sued out, and placed in the hands of the Sheriff, under which all the lands of the testator, of which the mill and mill premises formed a portion, were duly advertised for sale by the Sheriff. The testator, by his will, had devised his lands to his relations : the mill and mill premises to an infant on his obtaining twenty-one, his father, during his minority, being entitled thereto. By an arrangement made by the adult devisees with a friend of the family, it was arranged that this person should attend at the Sheriff 's sale, and bid such an amount for the whole property as would cover the execution debt and costs, and that he should hold the same for the several owners ; accordingly he at- tended the sale, and bid the stipulated amount, the proprietors and their agent also attending there and preventing any competition by openly announcing the arrangement which had been made, and only one bid was made for the property, which was duly conveyed by the Sheriff to the purchaser, who afterwards conveyed to the devisees their respective portions of the estate upon being paid a proportionate share of the amount bid at the sale, except the mill and mill premises, which the purchaser retained, occupied, and improved during the minority of the devisee, who, on obtaining his full age, demanded a conveyance, which demand the purchaser re- fused to comply with, alleging the purchase thereof to have been for his own benefit, whereupon the devisee filed a bill to compel the purchaser to carry out his arrangements. The Court, under the circumstances, held, the plaintiff entitled to redeem the mill premises, and that the arrangement under which the purchase was made at the Sheriff 's sale was capable of being proved by parol evidence.^ In Rapson v. Hersee,^ the distinction between a mort- gage and an absolute sale, with a contemporaneous agreement for repurchase, is fully explained ; and an absolute conveyance held to be of the latter character rather than the former, on the weight of evidence, which was conflicting. Neither will Courts^ of Equity disturb the rules of evidence, by varying a deed only on parol proof that thfe intention was different from that which appears by the deed.^ There must be mistake, 1 McGiU V, McGlashan, 6 Grant 324. 2 16 Grant 685. 3 Lord Portmore v. Morris, 2 Bro. C. 0. 229. 992 PROCEEDINGS IN THE MASTER'S OFFICE. or fraud, or some like equity dehors the deed, upon proof of wliich the grantor will be relieved ; and it has been said that the evidence must be as satisfactory as if the deed were admitted.^ In pursu- ance of this rule against the admission of mere parol evidence of intention, redemption has been refused^ on an annuity deed, even where the grantee had acquiesced in the redemption ; although having died before the completion, his executors afterwards refused to receive the money. A lessee of the Crown being in arrears for rent, assigned his in- terest to another, taking a bond to re-convey one-half thereof on payment of half the amount advanced within a year, which time having been allowed to elapse without payment of this sum. the assignee refused to convey, alleging that the transaction was a conditional sale. Upon a bill filed to redeem, the Court held that under these circumstances the transaction was prima facie one of mortgage, and that the onus of proving it to be a sale devolved upon the party attributing that character to the transaction, which, having failed to do, a decree was made for redemption, with costs, except the costs of a redemption suit, which were reserved until after the Master's report.* A mortgagee took a release of the equity of redemption, and thereupon an agreement was signed by both parties for the pur- chase of the property by the grantor for a sum exceeding the amount due on the mortgage, not giving the grantor a mere option to purchase, but binding him to buy and pay the stipulated price. Held, that the transaction was one of mortgage.* An improvident bargain for the sale of the plaintiff 's property, where the parties 'frere very unequal as regards means, intelligence and otherwise, and the papers were drawn by the vendee, who omitted some important parts of the bargain, and the vendors had not the protection of competent independent advice, was held not to be binding on the vendors. On making an advance of money on the security of real estate, it is not competent for the lender to bargain for the purchase of the property at a specified sum in case 1 Lord Truhrnn v. ChiU, 1 Bro. C. C. 91. „ „ ,„„ 2 Han V. Shearwood, 1 Ves. jun. 2« ; 3 Bro. C. C, 168, 3 Bostwick T. Phillips, 6 Grant 427. 4 Bawke v. MilWcen, 12 Grant, 236. PROCEEDINGS IN MOETGAGE SUITS. 993 of default in repaying the advance at the time stipulated. The plaintiffs executed an absolute assignment of their interest in cer- tain real estate, and the assignee gave his note for ^500, which he alleged to be the consideration for such assignment, payable in two years, subject to a condition expressed in the note, that the maker might retain thereout any advances he should in the mean- time make to the assignors ; no change of possession within the two years was intended, and none took place ; the assignee, alleged that the transaction was a sale to him with a right to the assign- ors to repurchase by repaying any advances he should make within two years ; but no evidence of this being given, the Court held that the transaction must be treated as a mortgage, and that the agreement for sale in case of default was therefore void.^ One of the tests by which a conditional sale is distinguished from a mortgage is the adequacy of the consideration ; where, therefore, it was shewn that the plaintiff had conveyed an estate for less than one-fourth its value, with a clause giving him a right of re-purchase, the conveyance was declared to be a security only.^ A deed was made by one joint owner of property at the instance of the other joint owner, to a third person, under a parol agreement that the grantee should hold the property to secure a sum of money which it was intended that he should advance to pay interest on a mortgage which was on the property, and that subject thereto the grantee should hold the property in trust for the wife of such other joint owner, who remained in possession of the property : Held, that parol evidence to establish the agree- ment was admissible.^ A memorandum on the deed, signed by the mortgagee,* is suffi- cient to set it up as a security ; and so are written accounts of the receipt and payment of interest, kept by tKe grantee under an ab- solute conveyance, there being also parol evidence to explain the omission of the usual requisites of a mortgage.^ 1 Fallon T. Xeenan, 12 Grant 388. 2 Stewart v. Barton, 2 Grant 45. ' 3 Campbell v. DurMn, 17 Grant 80 and see McLeod v. Orton, 17 Grant 84 ; Denny v. Lithi/ow, 16 Grant 619 ; Ross v. Ross, 6 Grant 647 ; Williams v. Jenkins, 18 Grant 536. 4 Franklyn v. Feme, Bam. Oh. 30. The report states that it was the mortgagor's signature, but this is a misprint, or the memorandum was signed by both parties. On the question of costs, the re- port proceeds thus :— " Now as to that the juilge was pleased to say that he thought it would be going too far to make Josiah (the mortgagee) pay the costs of this suit ; but, on the other hand, his opinion was, that Josiah had forfeited his costs. In the first place here is an indorsement under his own hand, whereby he has admitted the assignment to be a mortgage ; and, in the next place, here is a witness falsifying his answer." 5 Cripps V. Jee, i Bro. 0. C. 471. 39 994 PEOCEEDINGS IN THE MASTER'S OFFICE. The memorandum may also be signed so as to bind the grantee or transferee, by his agent, if the agent's authority can be proved by, or inferred from, sufficient evidence. Thus, the authority of the -wife of a transferee, who had signed an indorsement on the bill of S9,le of a ship, declaring it to be a mortgage, was admitted, and the signature was held to be the mortgagee's act.^ upon evi- dence that the mortgagee himself had given a receipt for interest on the consideration money. Where a feme covert granted an irredeemable annuity, out of her separate life interest in a fund, she was held entitled to redeem on the ground that there was an intention, though none was ex- pressed, against anticipation ; and that though she might have raised a loan, it was too large an anticipation to do it by way of annuity.^ It is not a consequence of this readiness in courts of equity to construe certain absolute conveyances as mortgages, that there can be no sale with a proviso for repurchase, limited to be void upon the nonperformance of a certain condition, it being clear that if an absolute sale be really intended, an agreement made at the same time for a repurchase, and not acted upon, will not of itself entitle the grantor to redeem.^ The question to be considered is, whether the contract was in its nature a mortgage under the form of a sale or a bona fide purchase, subject to a contract for repurchase.* and the test of this is the reciprocity and mutuality of the reme- dies.^ For as on the one hand, where the grantee has the usual remedies of a mortgagee, the deed may be inferred to be only a security, so on the other, in the entire absence of those remedies (assuming that there was no fraud or mistake) no new clause for repurchase will confer upon the grantor a right to redeem after the condition has been broken. Now, the condition for repurchase, unlike the proviso for re- demption, is construed strictly against the grantor ; who, if he desire the benefit of it, must shew compliance with its terms.^ And the reason of the difference is, that in a mortgage the penalty 1 Whitfield T. Parfitt, 16 Jur. 862. 2 Caverley v. Dudley, 3 Atk. 641. 3 See Verner v. Winstanley, 2 Sch. & Lef. 394, and the instances cited below. 4 Mellor V. Lees, 2 Atk. 495. 5 Goodman v. Orierson, 2 Ba. & Be. 274. 6 See 3 Sw. 631 ; Pegg v, Wisden, 16 Beav. 239 ; Barrell v. Sabine, 1 Vem. 268. PROCEEDINGS IN MORTGAGE SUITS. 995 or forfeiture is introduced for the purpose of security only ; and the mortgagee is compensated by receiving interest in default of payment of the principal at the time appointed. But in the case of a defeasible purchase, forfeiture is out of the question (the es- tate being absolutely vested in the grantee by the conv,eyanee) ; and the power to repurchase not being a right arising out of the nature of the contract, but a privilege given by special agreement, is to be exercised only on strict performance of the terms of the deed. Therefore, where in one case it was agreed at the time of the conveyance,^ that the premises should be reconveyed by the pur- chaser on payment of the original consideration money, and the expenses of the conveyance, within a limited time ; and in an- other,^ after an absolute release of the equity of redemption to the mortgagee for a further sum, the mortgagee (being then in the position of a purchaser) demised the estate to the former mortga- gor for a term,, at a rent, and agreed at the same time that, upon punctual payment of the rent, the estate might be repurchased at a fixed price, and within a certain time ; but in default of pay- ment of the rent, the agreement was to be void — -it being clear in these cases that there was no mutuality ; in other words, that the purchasers had no means of compelling the repayment of their consideration moneys, but that the power of repurchase was a privilege only — redemption was refused in the first case after the period fixed had passed, and repurchase in the other within the period, but upon default of payment of the rent, though the ar- rears due were tendered with the purchase money. The Court came to a like decision^ in another case, in which, upon a release of the equity of redemption for valuable consideration, a memo- randum was given to the mortgagor, that the mortgagee would re- convey upon repayment to him within a year of the original mort- gage money, with the consideration for the release and the charges for repairs. And if the mortgagee agree to forego part of his debt upon payment of the residue at a fixed day, prompt payment be- ing the consideration for the agreement, equity will give no relief in case of default, but will hold the mortgagee entitled to the whole 1 Williams v. Owen, 10 Sim. 386 and 5 Myl. & Cr. 303 ; Acton v. Acton, Pre. Ch. 237 ; 2 Abr.Eq. Ca. 695. 2 Davis V. Thomas, 1 Russ. & M. 606 ; Tam. 416 ; so in St. John v, Wareham, citerl 3 Sw. 631. 3 Emmiorlh v. Gri£Uh, 6 Bro. P. C. 184. 996 PROCEEDINGS IN THE MASTER'S OFFICE. of his original demand,^ notwithstanding continued payments of interest on the lesser sum. And so where the transaction is entirely carried out by the in- strument of conveyance, if the grantee have no power of compell- ing the repayment, as upon a conveyance of a reversionary interest in leaseholds,^ with a proviso for redemption upon repayment of the consideration money and interest within five years ; but, in default, the estate of the grantee to be absolute and indefeasible, and the grantor to be debarred forever from all right and relief in equity ; and the grantor covenanted to release his equity. It seems clear that even these strong expressions of intention would not have availed if any power of compelling repayment had been reserved to the grantee. And where^ a mill, with the fixtures and business, were assigned to the equitable mortgagee thereof at a certain price (the business to be carried on by him) with a clause for resale within ten years, and a proviso that if the net profits of the business should not during six consecutive months at any pe- riod of the ten years produce such an amount as to pay the inter- est on the purchase moneys, and if the assignor should, within two months after notice, fail to pay the assignee the purchase money, with interest, or in case the purchase moneys and interest should not be wholly repaid by the end of ten years, then the agreement for reconveyance should be void, and the equity of redemption barred; this was held to be a sale with a right to demand a resale, the grantee having acquired no personal rights against any one, and having no means, other than those pointed out by the deed (viz. the waiting the expiration of the time limited), for making himself master of the property. Upon an agreement by one who had contracted to buy an estate, that it should be conveyed to a person who had advanced him part of the purchase-money, with a proviso to be void on repayment of the advances with interest, and of the whole amount of the purchase-money at a certain day, otherwise the sale to be abso- lutely confirmed to the lender, the transaction was also held to be a conditional sale.* 1 Fori T. Marl of Chesterfield,, 19 Beav. 428. 2 Tashurgh y. Echlin, 2 Bro. P. C. 265. 3 Ogdem v. Battame, 19 Jar. 791. i Perry t. Meidmecroft, i Beav. 97. PBOCEEDINGS IN MORTGAGE SUITS. 997 It is the same if there be a conveyance of land, conditioned to be void on payment of a sum of money at a certain day ; for it; is in the election of the settlor either to pay the money or to let the settlement stand, but not in that of the grantee to compel pay- ment.^ I Somewhat akin to the case of a conditional sale is that of a condition in a settlement, that, upon payment of a sum of money in a certain event, the prior limitations of an estate shall cease, and the land go to the person paying the money ; as where^ land was settled upon the issue of the intended marriage in tail, with a proviso that if there should be but ' one daughter, and no other child of the marriage, the land should be to the husband in fee, upon payment to the trustees of the settlement of a sum of money by his heirs, executors or administrators, within three months after his death. The event having happened, this was held to be only a security for money, and to be redeemable after three months ; and that, not merely by the heir or executor, but also by a creditor of the husband. But it will be different^ if the proviso be, that, unless (in the happening of the event) the person entitled under the limitation pay to another a certain sum within a limited time, the land shall go over to the latter in fee, for here there is a limi- tation over upon default of payment at the appointed day, to ireait which as redeemable would destroy the distinction between a con- dition and a limitation over. It follows from what we have seen of the nature of foreclosure, that in these cases of conditional sales and under settlements, there being no power in the person to whom the money may be paid to» compel payment of it, and no forfeiture but a permissive right of payment only, there can be no foreclosure. Another kind of redeemable interest is that in which the person to whom the consideration money is paid, grants, not the estate, but an annuity or rent-charge issuing thereout, with a clause of repurchase. Transactions of this kind were originally made (where loaijs were intended) for the purpose of avoiding the Statutes of Usury, and are now of common occurrence. The effect of the 1 King V. Bromley, 2 Abr. Eq. Ca. 096 ; and see Ensworth v. Griffith, 6 Bro. P. C. 184. 2 Freimiok v. Aynscombe, 2 Eq. Ca. Abr. 694, M. N.; 1 Atk, 392. 3 Earl of WincHelsea v. Norcliffe, 1 Vera. 430. 998 PEOCEEDINGS IN THE MASTER'S OFFICE. transaction is somewhat of the nature of a Welsh mortgage, the money borrowed being repaid by instalnients, consisting partly of interest and partly of principal.^ The tendency of the Court is to treat annuities thus granted with a power of repurchase, as redeemable annuities, and to admit unwilliagly the distinction between redemption and repurchase in cases in which the grant of the annuity and the stipulation for repurchase form part of the same transaction ; especially if the words "redemption" and "repurchase " appear to have been used synonymously; but the word "repurchase " will be construed with the strictness of a condition, where the grantee has been for some time in possession as purchaser.^ The presence of a stipulation that notice shall be given of the intention to repurchase, and the condition for repayment of the purchase money, with a further sum amounting to the value of the interest during the period of notice, are also circumstances' upon which the Court will rely, as indications that a loan was intended, and that the object was to allow time to find another borrower, and to secure interest in the meantime : though the latter condition was one upon which Lord Eedesdale thought that much stress ought not to be laid.* In determining whether an instrument is intended to operate as a mortgage, or as an absolute or conditional sale, the circumstances attending the transaction will be looked at ; and the facts that the grantee took immediate possession imder the deed, and that the expenses of it were paid by him, contrary to the usual practice in cases of mortgage, will be some, but not conclusive, evidence of an intention of absolute sale.° Circumstances of pressure upon the grantor, as where he is insolvent and in prison, or represented by the same solicitor as the grantee, will materially influence the Court in construing an apparently absolute or conditional sale, as a mortgage, where, in the absence of such circumstances, the mere insuf&ciency of price would be little regarded ; and weight will be 1 Flayer v Sherard, Ambl, 19 ; Lawley v. Hooper, 3 Atk. 281. But this seems to be the only re- semblance, for possession is not of the essence of the transactioi^ and foreclosure may be had. 2 Longuet v. Scawen, 1 Ves. 403 ; Bulwer v. Astley, 1 Ph. 4M. 3 Lawley v. Hooper, 3 Atk. 281 ; Bulwer v. Astley, 1 Ph. 422. 4 Verner v. Winitanley, 2 Sch. & Lef. 393. 6 Williams v. Owen, 10 Sim. 386 ; and 6 Myl. & Cr. 303 ; Davis v. Thomas, 1 Euss. & M. 606. PROCEEDINGS IN MORTGAGE SUITS. 999 also given to the circumstance, that, in the peculiar position of the grantor, a mortgage might be beneficial to him when a sale would not.^ It may be shown by parol evidence, that a contract that a con- ditional sale should become absolute upon the happening of a certain event, was entered into by the grantor with a full knowledge of the consequences,^ and also what was the nature of an instru- ment uncertain upon the face of it f but such evidence will not be allowed to affect an inference that the transaction, though in form a sale, was only a mortgage, where that .inference is founded upon strong circumstances. Thus, where a debtor gave to his creditor an absolute bill of sale of a ship at sea, and deposited with him a policy of insurance thereon, and drew bills upon him for further sums, engaging, but failing to pay them when they came to matu- rity, and the bills were renewed at the expense of the debtor, and the insurance was kept up and payments made by him on account of the crew : these facts were held to be consistent with, and evi- dence of, a mortgage, and not of a conditional sale intended to become absolute upon non-payment of the bills, although parol evidence was given by the creditor that the agreement was other- Section II. — As to Equitable Securities. A large class of securities which are subject to the principles upon which the ordinary rules of redemption and foreclosure are founded, but in which those rules, from the nature of the contract, are some- what modified, are called equitable mortgages. They are simply securities by which no legal interest, in the property mortgaged, passes to the creditor, and thus include not only mortgages of the equity of redemption of property, the legal interest whereof has been already mortgaged, but also transactions in which property or the evidences of property come into the hands of the creditor, upon a vn-itten or verbal, express or imphed agreement that such property 1 Fee V. Co6t«e, 11 Ir. Eq. E. 406. 2 Newcomb v. Bonham, 1 Vem. 8, 214, 232. 3 Langton v. Horton, 5 Beav. 9. 4 Id. 1000 PROCEEDINGS IN THE MASTER'S OFFICE. shall be answerable for the debt ; as well as those transactions in which the intention or duty of creating a charge on property is held to arise, from an express or implied contract to render that property liable. As to securities not being mortgages of the equity of redemption, which generally follow the form of legal mortgages : An equitable mortgage may be created by a mere deposit of deeds with intent to create a security, ^ which intent may be established by written documents, coupled with parol evidence ; by parol evi- dence simply, that the deposit was made, by way of security ; or by the mere inference o:^ an agreement, drawn from the very fact of the deposit.^ But in the last case, there must be no circumstances to rebut the inference,' and the security will only be established where the possession of the deeds cannot otherwise be accounted for, or the holder is otherwise stranger to the title and land. Upon which principle, the possession by a solicitor of his client's deeds raises no inference that they are held in pledge for a debt, as E^gainst a purchaser who neglects to inquire into the nature of the possession.* The inference that the deposit was intended as a security, also'appears to be less strong in the case of a debt already due, than of a present advance, especially if the debt be of long standing ; for it has been held,^ that a creditor cannot some years after the making of the loan, claim the rights of an equitable mort- gagee upon the strength of a mere possession of the title deeds. To connect a debt of long standing with the possession of the debtor's deeds, the creditor must proceed upon a distinct allegation, sup- ported by satisfactory proof that they were delivered to him by way of security. Nor, if the plaintiff's evidence of the deposit be de- fective at the hearing, will he be entitled to an inquiry to enable him to establish his security; it being contrary to the practice of the court to direct a reference at the hearing of the cause,® upon a matter which involves the very root of the plaintiff's title. 1 Ex parte Kensington, 2 Vea. & B. 83. 2 Featherstone v. Fenwiclc, 1 Bro. C. 0. 270, n ; Harford v. Carpenter, id. ; Ex parte Mountfort 14 Ves. 608 ; Ex parte Wright, 19 Ves. 268 . «- , 3 Ex parte Langstone, 17 Ves. 227 ; Edge v. Worthington, 1 Cox. 211 j Ede v. Knowles 2 Y & C C. 172. i Bozon V. Williams, 2 Y. & J. 160. 5 Chapman v. Chapman, 13 Beav. 308 ; 15 Jur. 265. 6 Hblden v. Ream, 1 Beav, 456. , AS TO EQUITABLE SECURITIES. 1001 Still less will the inference arising from a deposit be allowed to prevail, if its effect would be to contradict the -terms of a written inatrximant.^ A- the equitable owner of property had it conveyed to his son, a minor, in trust for himself. A. afterwards signed the son's name to a mortgage of the property to a creditor, and added his own name as a witness. Held that the instrument, though void at law creat- ed a valid charge in equity.^ Where a mortgage was through error created upon a wrong lot of land, the mortgagor owning only the land intended to be emb?-aced in it, and having no title to that actually conveyed, and he subsequent- ly sold the land to which he had title. The Court upon a bill filed for ,that purpose, ordered him to account for the proceeds of the sale, not exceeding the amount secured by the mortgage, with interest and cost of the suit.^ Where a mortgage was created by the deposit of title deeds, and the borrower signed a memorandum stating the sum loaned, and times for repayment, and agreeing to execute a writing to enable the lender to transfer, or control the mortgages so deposited. Held, that the memorandum did not require registration to secure its priority over a subsequently registered incumbrance, such memoran- dum not being in the language of the Act, "a deed, conveyance or assurance affecting lands."* A subsequent incumbrance is entitled to a sale upon the usual terms, where the plaintiff is an equitable mortgagee by deposit of title deeds, as well as where the mortgage is by deed.^ A memorandum of deposit, given with deed, deposited by way of equitable mortgage, is not a " deed, conveyance, or assur- ance " within the meaning of Con. Stat. U. C. c. 89 s. 17, and does not require registration. Such a memorandum is only a matter of evidence, the mortgage being created by the deposit of the deed.® An equitable Hen or security may also be established by parol evidence of arrangements, the subjects of a separate agreement, or 1 Ex parte Coombe, 17 Ves. 369. 2 DennMown v. Fyfe, 11 Grant 372. 3 Lundy v. McEuTnis, 11 Grant 578. 4 Harrison v. Armour, 11 Grant 303. 5 Ee-rr v. Behee 12 Grant 204. 6 Harrison v. Armour^ 1 C. L. J. N. S. 134. 1002 PROCEEDINGS IN THE MASTER'S • OFFICE, referred to in a deed relating to the transaction out of the which lien is held to arise ; as where^ incumbrancers joined in assigning their security upon the terms, that they should be secured by sub- sequent mortgages, which were never executed, they were held en- titled to en equitable lien as second incumbrancers. So, also, upon real estate in favour of the obligee of a bond, by a recital therein, that the obligor had become possessed of real estate under a certain will, upon the execution whereof he had promised the testator to provide for such obligee.^ So, where^ a lease was made of certain premises, and the rent was assigned to the creditor ; there being in the assignment a recital, that a security was intended, and a covenant for further assurance of the rent, the covenant was held to be in equity a covenant to make a mortgage, and the case to be within the rules of equitable mortgages. An equitable security may even be established upon documents which remain in the keeping of the debtor, though in the legal custody of the creditor ; as where a bundle of deeds marked " Cash Credit Security E. M. to the Royal British Bank," was found in a drawer of the bank used for his private business by E. M., who was the secretary of, and was indebted to the bank. By the help of parol evidence, this was held to be* an equitable security for further advances in addition to other securities mentioned in a memorandum pre^T-ously given. But in the absence of evidence, and where the security remains in the possession of the debtor, no lien arises by reason of a memorandum annexed to it, which purports to appro- priate the proceeds to satisfy a particular debt, such a memorandum not amounting to an assignment.^ The security may also be established against property of which the title deeds have not been actually deposited, where a written undertaking, or expression of intention to deposit them, can be proved. Thus a letter referring to inclosed particulars of title deeds, and alleging that those® deeds were deposited to secure a debt, was 1 Banks V. Whittall, 1 De Ge. & S. 636 ; Beckett v. Cordley, 1 Bro. C. C. 353. 2 Ex parte Atkins, 2 Y. & C. 636. 3 Ex parte Wills, 2 Cox. 233. 4 Ferris v. MuUins, 18 Jur. 718 ; 2 Sm. & Gif. 378. 6 Adams v. Claxton, 6 Ves. 226. 6 Ex parte Arkwright, 3 Mont. Dea. & De Gex 129. AS TO EQUITABLE SECURITIES. 1003 held to create an eq\iitable charge upon the estate comprised in the deeds, although, upon after inspection, nothing appeared to have been deposited but an old paid-off mortgage. But a parol agree- ment to deposit a deed will of course not be sufficient to create a security.^ A deposit of a material part only of the deeds will effect a good equitable mortgage of the estate, there being no fraud, and good reason for not depositing the remainder.^ And an equitable mort- gage by deposit affeets, prima facie, all the property comprised in the documents deposited ; the onus of showing that the security was limited to part of such property being thrown upon the mortgagor^ or those who claim subject to the mortgage.^ The extent to which the mortgagor is intended to be bound, will be measured by the written agreement where any exists, and will not be carried beyond the terms there expressed. Therefore a deposit of deeds with a partner- ship, accompanied by a memorandum addressed to the partners by name, expressing the deposit to be for securing moneys to be ad- vanced by their house, will not, if there be nothing more, secure advances by the firm after a change in its members ; though parol proof of intention that the deposit shall extend to the demands of the new firm will be held equivalent to a re-delivery of the deeds to them.^ Nor will the despoit cover any more than the sum which it was the principal object of the agreement to secure, though the agree- ment relate to other debts which may become due from the debtor to the creditor. Thus it was held^ at law that the pledge of a lease to secure the amount of a promissory note did not cover moneys which became due to the depositee for goods ; though it was a con- dition of the agreement that payment of the note should not be en- forced within a certain time, if the interest and rent, as weU as the price of goods to be purchased and used on the premises, should be regularly paid ; the condition relating only to the enforcing of the note, and being ancillary to the principal object of securing the amount due thereon. 1 Ex parte Coombe, i Mad. 249. 2 Lacon v. Allen, W. Rep. 693, 1856-1856. 3 Ashton V. Dalton, 2 Coll. 566. 4 Ex parte Kensington, 2 Ves. & B. 79. 6 CMltm V. Carrington, 19 Jut. 89 ; 15 C. B. 95. 1004 PROCEEDINGS IN THE MASTER'S OFFICE. All equitable mortgage, being thus supportable by parol evi- dence, may by the like evidence^ and also (as it seems to have been intimated)^ by inference alone, arising from possession of the deeds, be extended to cover future advances. And a security was held to be so extended^ where the deeds were previously in the mortgagee's hands to secure a debt to another person by virtue of the terms of a written memorandum, though the defendent denied by his answer that the deposit was made. Where the original deposit created no valid security, the con- tract being usurious, a parol agreement for a security with legal in- terest, and including further advances, was held on appeal* to make a good mortgage by deposit, both for the original debt and further advances, though it was considered in the court below,^ that the original deposit being bad the possession remained unchanged, and that a fresh deposit or a written agreement must be shown to set up the security.' Where a voluntary settlor who had applied part of the trust moneys which had come to his hands in the purchase of an estate (the remainder having been lost by failure of the securities,) , de- posited with the trustees the title deeds of the purchased estate, the mortgage was held to extend only to the good consideration which was retained for it ; viz., the sum invested in the purchase : though before the deposit the settlor had agreed (but afterwards refused) to execute a legal security for the whole trust money.* A legal security cannot be extended by such means to sub- sequent advances made on a parol agreement for a further mort- gage ; because, it is said, the legal mortgagee holds his mortgage as a contract for conveyance only, and not for deposit.' Parol evi- dence also is not admissible to show that the person with whom the deeds are deposited holds them for the security of another creditor's 1 Ex parte Langston, 17 Ves. 227; JEde v. Kmiwles, 2 Y. & C. 0. C. 172 ; Ex parte Settleship, 2 Mont. Dea. & De G. 124. 2 See James v. Mce, 18 Jur. 374 ; Kay 231. 3 Baynard V. Woolley, 20 Beav. 683. 4 James v. Bice, 18 Jur. 818 ; 6 De G., M. & G. 461. 6 S. C. Kay, 231 ; 18 Jur. 373. 6 James v. Bydder, 4 Beav. 600. 7 £x parte Hooper, 1 Mer. 7 ; and see Shepherd v. Titley, 2 Atk, 348 ; where, however, there waa an intervening incumbrance. Thus a person who has obtained a legal morterage may, as to future advances, be in a worse position than an equitable mort{i;agee. But the distinction was confessedly made to avoid an extension of the doctrine a^ted upon in Ex parte Langston. The result justifies the remark made in another case by Lord Eldon, that '* departing from the Statute, (of Frauds,) we have no rule to go by." AS TO EQUITABLE SECURITIES. 1005 debt- as well as his own ; though if the depositee himself be no creditor but a trustee only, he may be shown to hold them for another's benefit.^ The possession of the debtor himself cannot, it seems, be set up as a possession for the creditor ; nor will an alleged possession for the latter by the debtor's Avife be allowed,^ though she swear that the deeds were left with her with that intent, and that she had ever since kept them under lock and key. Where one of two tenants in common in tail, with cross re- mainders, deposited the deeds as a security for money due from him engaging to make a formal security when required, and the other simply joined in the deposit, it was held that only the moiety of the property which belonged to the former was affected by the security, which, as to the interest of the second depositee, only affected his estate in remainder.^ And a deposit of deeds made for the sole purpose of obtaining credit, will give the depositee no lien upon them in equity for moneys before advanced.* It will be observed that in these cases the inference arising from the deposit was re- butted. A simple covenant or agreement to charge land will not create a charge in equity upon the debtor's real estate, where no particular estate is mentioned, or the agreement is only for a personal, with power to call for real, security. A promise in a note of hand for a debt to give a security by a mortgage^ of lands when required, or a mere covenant to settle lands of a certain value,^ will therefore not amount to an equitable mortgage ; but the lien will arise if the covenantor be then possessed of lands to which the covenant may be held to refer ; as if he covenant to make the charge within a month,^ or contract to charge such property as he may have at a future time,* orto make a charge at a future period, on the arrival of which he actually has power to charge certain lands ; ^ and in such a case it seems the covenant will create a lien upon any property to which he may become entitled between the date of the covenant and 1 Ex parte WhUhread, 19 Ves. 209. 2 Ex parte Coming, 9 ves. 115. 3 Pryce v. Bury, 17 Jur. 1173 : 2 Drew. 11 ; and 18 Jur. 9B7. 4 Mountford v. Scott, Turn. & E. 274. 5 Williams v. Lucas. 2 Cox, 160. 6 FremouU v. Dedir'e, 1 P. Wms. 429. 7 BouTidell V. Breary, 2 Verii. 481 ; and see 4 M. & C. 681 ; and Deacon v. Smith, 3 Atk. 323-7; 8 Metcalfe y. Archbishop of York, 1 M. & C. 647 ; 6 Sim. 224 ; Lyde v. Minn, 1 M. & K. 683 ; 4 Siih. 606. 9 Wellesley v. Wellesley. 4 M. & C. 661. 1006 PEOCEEDINGS IN THE MASTER'S OFFICE. the day fixed for its performance ; ■which he cannot evade, on the ground that he may exercise an option, under the covenant, as to the estates to be charged. ^ And a promise to pay a debt out of the estate T)f a deceased person, if the personalty be exhausted, will charge the realty, for the promise applies to all the estate.^ And an actual, though in- complete, agreement for a mortgage, as where the debtor wrote to his creditor, ^ agreeing to give him a mortgage of part of certain specified property, but between the letter and his death conveyed to trustees for the payment of his debts ; or a defective security,* as amounting in equity to a good agreement to charge the land* will be carried into effect by a court of equity, according to the manifest intent of the parties. It is, however, to be observed, that an agreement for, or prelimi- nary step in, the effecting of a security, cannot be set up as an equitable mortgage if it have been laid aside unacted upon by the creditor. He must, if any lapse of time have taken place, be able to show that he intended to carry it out, and had taken the neces- sary steps to render his security effectual. Therefore a creditor to whom the debtor had given an order for the transfer of certain shares in a company, which he had not acted upon for three years, nor during that period had given notice to the company was held^ not to have any equitable lien on the shares, though it was proved that a sum of money had been advanced by the creditor upon the day on which the order was dated. Nothing had been done, which would have prevented the debtor from selling the shares to a stranger at any moment. The question whether a delivery of title deeds, for the purpose of preparing a legal mortgage, wiU of itself operate as an equitable security, has been the subject of confiicting decisions ; but where there is already an existing debt, may perhaps be now satisfactorily answered in the affirmative. The contrary was formerly held by Lord Hardwicke^ (although the case was supported by parol evi- 1 WellesUy v. Wellesley, 4 M. & C. 661 : and see Deacon y. Smith, 3 Atk. 323. 2 Stuart V. Toidmin, Pow. Mort. 1049, b. 3 Sir Simeon Stuart's case, cit. 3 Ves. 676 ; and 2 Sch. & Lef. 381. 4 Dale V. Smihwick, 2 Vem. 151. 5 Cumming v. Prescoti, 2 Y. & 0. 488. 6 Brizick v. Manners, 9 Mod. 284. AS TO EQUITABLE SECURITIES. 1007 dence, on the ground of the uncertaiuty of the agreement proved and because it was sought to bind the heir ; which their was no proof that the debtor, even assuming his intention to execute a mort- gage, intended to do,) by Lord Thurlow,i and Sir William Grant'; '^ who considered that no intention being apparent, from a delivery for this purpose, of an intention to create a pledge, such an inten- tion should not be raised by inference. Sir WiUiam Grant, how- ever, appears to have assumed too strongly the want of intention to pledge, alleging that it was a thing which none of the parties had in contemplation. The fact was, that the evidence upon the point was conflicting, it being sworn by the solicitor who was to have prepared the mortgage, that he understood that the deeds were left with him, not only for that purpose, but also that he might keep them, together with the intended mortgage. And it seems ^' to have been weU estabUshed by later decisions that an equitable security does arise by a delivery for the purpose of preparing an actual mortgage. It was remarked by Lord Eldon, that a deposit made with that object, is of greater force than an implied intention to mortgage arising from a mere deposit and conse- quently also amounts to a security. It has been observed by Mr. Coventry, writing before the decision of Keys v. Williams, that the judgments of Lord Eldon and Sir WiUiam Grant disclose a want of attention to the dis- tinction between a deposit as a pledge, and a delivery of deeds for the purpose of preparing a mortgage; and he remarks, that, in the latter case, the previous agreement explains the purpose for which the deeds were delivered, and rebuts the presumed contract which would otherwise arise, that the deeds were handed over with a view to a present security. The distinction is plain enough, but not necessarily applicable. The possession of the deeds is an incident of the legal mortgage. Now the principle set up in the old cases, and defended by Mr. Coventry, amounts to this, — that although a simple deposit of deeds may by inference alone amount to a security, yet a delivery for the purpose of making a better, i. e. a legal security, to the very person by whom under that security the possession is to be 1 Ex parte Btdeel 2 Cox, 243. 2 Morris v. Wakinson, 12 Ves. 192. 3 See Ex parte Bruce, 1 Rose, 37i ; Edge v. Worthington, 1 Cox, 211 ; Keys v. Williams, 3 Y. & C. 66. 1008 PROCEEDINGS IN THE MAS'TER'S OFFICE. retained, is of less force. It -would be strange if a creditor who has exerted himself to obtain a contract for a legal mortgage to secure his debt, and in consequence of that contract has obtained possession of the deeds, should be in a worse position than if he had obtained a Hen on the deeds by mere inference, founded on possession ; and unreasonable that the inference of a security, which the law would annex to his possession of the deeds, where he had made no actual bargain, should be taken away because he had stipu^ lated for something which would carry with it a right to that possession. The question is entirely one of inference. Where a present loan is in course of negotiation, the delivery of the deeds for the purpose of preparing the mortgage would effect no security, because no debt would be in existence. But where a debt exists already, is it not at the least as reasonable to infer that a delivery for that purpose is as if the debtor had said, — " You are to have a mortgage which will carry with it a right to the custody of the deeds ; therefore, take them at once, and prepare the mortgage at your leisure," as to infer in the first instance that a deposit without any bargain at all should amount to a security ? The doctrine of equitable mortgages being once established, the application of it to the cases under consideration seems, if it be an extension, to be one founded in reason and justice. And the doctrine has been applied against executors ^ in favor of a residuary legatee, whose share they had agreed to secure by a legal mortgage of part of the assets, although the mortgage did not bind the- interests of the other legatees. Section III. — As to Vendor's Lien. The right of a vendor of land to a lien thereon, for the amount of his unpaid purchase-money, rests upon the plain principle of equity, that he who has obtained possession of an estate, under contract for payment of the price, shall not keep it without payment. ^ The question in what case the lien exists has been much discussed, and the result of the cases may be briefly stated as follows; it being 1 Hockley v. Bantock, 1 Russ. 144. 2 Maeretk v. Symmons, 16 Ves, 328. AS TO vendor's lien. 1009 premised, that where the consideration is expressed to be paid in the deed, but is in fact wholly or partly left unpaid, parol evidence may be given on the part of the vendee of the real transaction ; as it is the vendor himself who, by claiming a lien, is the first to set up an equity against the written statement in the deed.^ The lien exists generally (the contract not being illegal),^ with- out distinction as to the freehold, copyhold or leasehold tenure* of the estate, where the whole or part of the purchase-money is un- paid,* and whether the consideration be a sum in gross, or an annuity ; ^ as against the purchaser, his heir, volunteers, persons having equitable interests, and purchasers with notice of the non- payment of the purchase-money, and claiming under the original purchaser.* The lien is unaffected, though the vendor take a draft, note or bill of exchange '' negotiated,^ or otherwise (these being but modes of payment), for the unpaid money ; neither is it lost by his taking security, by mortgage, bond or covenant,^ from the purchaser himself; and, as to a covenant, whether it be separate or contained in the purchase deed : nor by the purchase-money being made pay- able at a future day — as within a given time from the vendor's death.^" It may be saved, by a proviso that the estate shall not be assigned until payment,^^ without the consent of the vendor and the surety of the purchaser. And it extends to the assignee of the vendor, even though he claim only by parol assignments^ A vendor of real estate who takes by way of security for the purchase money the joint and several promissory notes of the vendee and surety does not lose his lien on the estate for the purchase money though he took no mortgage therefor ^^ 1 Winter r. Lord Arison, 1 Sim. & St. 446. 2 EwiTig V. Ogbaldeston, 2 Myl. & Cr. 88. 3 Winter v. Lord Anson, 3 Russ. 492 ; Matthew v. Bowler, 6 Hare, 110 ; Elliott v. Edwards, 3 Boi. & Pul. 181. 4 Harrison v. Southcote, 2 Ves. 393 ; Austen v. Halsey, 6 Ves. 483 ; Elliott v. Edwards, supra. 5 Tardi^v. Srughan. cited 1 Bro. C. C. 422 ; Mackrctk v. Symmons, 16 Ves. 328 ; Clarke v. Boyle, 3 Sim. 499; Sllgd. V. & P. 866, &o., 11th ed. ; Matthew v. Bowler, 6 Hare, 110. 6 Elliott V. Edwards- supra ; Maareth v. Syrmnons, supra; Gibbons v Braddall, 2 Eq. Ca. Abr. 682, M. N. ; Walker v. Preswick, 2 Ves. 622 ; Cator v. Pembroke, 1 Bro. C. C. 301. 7 Hughes v. Kearney, 1 Sch. & Let. 132 ; Grant v. Mills, 2 V. & B. 306 ; Gibbons v. Braddall, 2 Eq. Ca. Abr. 682, M. N. ; Ex parte Peake, 1 Mad. 346. 8 Ex parte Loarinq. 2 Ross, 79. ^ 9 Tardiff v. Scrughan, cited 1 Bro C. C. 422 ; Elliott v. Edwards, 3 Bos. & Pul. 181 ; Nairn t. Prowse, 6 Ves. 752 ; Macreth v. Syrmnons, 15 Ves, 328 ; notwithstanding Fawell v. Heelis, 1 Bro. C. C. 421, n. 10 Winter v. Lord Anson, 3 Russ. 488. 11 Elliott V. Edwards, supra. 12 Drydon v. Frost, 3 Mj'l. * Cr. 570 ; and see White v. Wakefield, 7 Sim. 401. IS Colborne v. Thomas, 4 Grant, 102. 40 IQIO PROCEEDINGS IN THE MASTER'S OFFICE. A vendor's lien for unpaid purchase money has priority over the lien created by a registered judgment against the vendee.^ Where a sale was made and conveyance executed before a Court of Chancery was established in Upper Canada, it was held that a vendor had, notwithstanding a lien for unpaid purchase money. Such a lien was enforced against subsequent purchasers, who, when they acquired their interest, had notice of the purchase money being unpaid.^ Land being conveyed in consideration of the vendee providing the vendor with maintenance, washing, &c., the vendor retains a lien for the consideration.^ On a sale of lands for £3,000, the purchaser paid at the time of the execution of the conveyance £2,750, and gave his promissory notes for the balance, payable in three and four years : afterwards he executed a moi'tgage to his father for the £2,750, alleged to have been advanced by him to his son to effect the purchase. The pur- chaser died intestate, without issue, and before the notes fell due the vendor fileda bill against the fatheras heir-at-law, alleging that he intended to sell the property so as to defeat the vendor's lien, and praying that it might be declared that he had a first lien or charge upon the estate for the amount due him. Held, that he was entitled to a decree for that purpose, but without costs.* In a suit to enforce by sale a vendor's lien against the heirs-at-law of the purchaser, the widow of the vendee is a necessary party in respect of her right to dower.' The defendant, a minor, purchased an estate and gave the vendor a mortgage for the purchase money. The mortgage was afterwards assigned to the plaintiff. On coming of age the defendant repudiated the mortgage, but adopted the purchase of bringing an action to recover possession. The mortgage being the deed of an infant was holden absolutely void. But it was also holden that the mortgagebeingvoid, a lien for the purchase money resulted to the vendor, and that such lien passed to the plaintiff by the assignment of the mortgage.* Where a mortgagee assigned the mortgage covenanting for the payment of the mortgage 1 Bughxon v. Davis, 4 Grant, 588. 2 Davis V. Bender, 4 Grant, 620 ; and see Harvey v. Smith, 2 E. & A. 480. 3 Paine v. Chapman, 6 Grant, 338. 4 Foulds V. Powell, 6 Grant, 375. 5 Paine v. Chapman, 7 Grant, 179. 6 Grace v. Whitehead, 7 Grant, 591 ; and see Wilson t. Daniels, 9 Grant, 491. AS TO vendor's lien. 1011 money, and subsequent to an agreement between the mortgagee and assignee that the former might have a re -assignment of the mortgage on payment of principal and interest due thereon, and the mortgagee afterwards made payments under his covenant : Held, that he was entitled to a lien therefor as against the mortgagor.^ I. and S., the owners of two distinct parcels of land, agreed to exchange the one for the other. S'.s land was subject to a mortgage which he agreed to pay off, but did not, and I. was compelled to redeem the same. Held, that I. was entitled to a lien on the land conveyed by him to S., as for unpaid purchase money, for the amount paid to redeem the mortgage.^ A tract of land was bought by several parties with a view to laying off a portion thereof into building lots, and selling the same to purchasers : for greater facility in doing so the legal estate was vested in one of them as trustee however for the several parties interested. Subsequently one of the owners sold out his share, receiving in payment notes of hand, made by his vendee and endorsed by two other persons. Held, in error and appeal, reversing the decree of the Court of Chancery that the vendor did not under such circumstances retain any lien for the purchase money remaining unpaid.^ But if the consideration for the sale be the security itself, and not the sum secured ; * or if it appear by direct agi'eement ; or can be clearly inferred from the circumstances, that the purchaser intended to rely upon the security only, and not upon the land, then the lien will be gone ; ^ for it is evident that the vendor has already got all that he bargained for. Now as the lien is lost in these latter cases, not by the mere taking of a security, but by the taking it by way of substitution for the purchase-money, the question becomes in a great measure one of intention, and must be decided by the circumstances of each case. A stipulation for payment of the purchase-money within a certain time after a resale,^ and the taking of a security by bond and mort- gage of part of the estate,' have thus been held indicitave of an inten- 1 Fleming v. Palmer, 12 Grant, 226. 2 Seney v. Porter, 12 Grant, 646. 3 Boulton V. Gillespie, ? Grant, 223. i Winter v. Lord Anson, 1 Sim. & St. 434 ; Clarke v. Royle, 3 Sim. 499 ; BwMancl v, Poeknell, 13 Sim. 406. 6 Parrott v. Sweetland, 3 Myl. A K. 656 ; Winter v. Lord Anson, 3 Rusa. 492, 6 Ex parte Parkes, 1 Glyn. & Jam. 228. 7 Capper v. Spottiswoode, Taml. 21. 1012 PROCEEDINGS IN THE MASTER'S OFFICE. tionto abandon the lien entirely. So where the vendor was party to a mortgage made by the purchaser to a person who had advanced part of the purchase-money, his lien was held^ to be gone. And the taking a mortgage for part, and of a note payable on demand for the residue of the purchase-money, has been held ^ to have a like effect; on the strong but perhaps (says Lord, Eldon,)'' not conclusive inference, that the charge for a part, showed an intention not to charge the residue. If the bond,*'instead of being given by purchas- er alone, be also joined in by sureties, it is thought that the lien no longer remains. The owner of land, after creating a mortgage thereon, assigned his equity of redemption to a third party, who covenanted to pay off the mortgage debt, and afterwards became the purchaser of the mortgaged premises, under a decree at the suit of the mortgagee, and at the sale the amount realized was not sufficient to cover the amount due to the mortgagee. Held, that under the circumstances he was not entitled to any lien on the estate for the deficiency.^ Where the purchase money of an estate was left unpaid, and a creditor of the purchaser (without notice) sued out an execution against lands, under which the premises in question were sold to the defendant, who had notice, the vendor's lien on the property for the unpaid purchase money was held to attach in the hands of the purchaser at Sheriff's sale. And qiccere, whether, if the purchase at Sheriff's sale had been completed without notice, the conveyance by the Sheriff would not have conveyed the property subject to all existing equities against the debtor.^ A purchaser of real estate executed to his creditor a mortgage thereon for a balance of unpaid purchase money, but which was not registered until after a judg- ment recovered against the purchaser had been recovered and registered. Held, that the judgment had priority to the mortgao-e, although the deed to the purchaser had never been registered ; and that under such circumstances the vendor did not retain any lien for the unpaid purchase money.^ The lien of a vendor for unpaid purchase money is not waived by 1 Cood V. Pollard, 9 Price, 644 ; 10 Price, 109. 2 Bond V. Kent, 2 Vem. 281. 3 15 Vc3. 344. The report in Vernon, however, gives no reasons for the postponement 4 Cood V. Pollard, 10 Price 109 ; Svgd. V & P. 860, 11th ed, 5 Forbes V. AdarnHon, 1 Chamb. Rep. 117. fi StroT}^ V Lewis, 1 Grant, 443. 7 Burgess v. Howell, 8 Grant, 37 ; and see Helliwell v. Diokson, 9 Grant, 414. AS TO .vendor's lien. 1013 the fact of his suing and recovering judgment for the amount, although such recovery is subsequent to another judgment registered against the purchaser.^ L. sold land to R. who paid £175 in cash, and assumed payment of two mortgages made by L. as one-third of the consideration agreed on ; and a mort'gage was executed by R. to secure another third of the purchase money. L'.s wife refusing to bar her dower, a bond was executed by R. providing for payment of the remaining one-third at a certain period. It was arranged, that in case of the death of L. or his wife before the time fixed, the money secured by the bond was to be paid within one year thereafter, to the survivor. Held, that under the circumstances L. had not waived his vendor's lien for that portion of the purchase money secured by the bond.^ On the sale of land the purchaser paid a certain sum in hand, gave a mortgage on other property owned by him for another por- tion of the price, 'and for the balance four promissory notes were to be given, made by the purchaser and such other persons as would render them saleable, without being endorsed by the vendor, one only of the notes was delivered. Held, that the vendor retained no lien on the property sold, for any portion of the purchase money. Held also, that the bill could not be sustained as a biU for specific performance, the agreement for the delivery of the notes being such as this Court could not execute, and the remedy being at law for breach of the contract.^ A vendor took from the purchaser a mortgage for part of the consideration money, but did not register the conveyance until several months after the deed to the purchaser had been registered : — in the meantime the mortgagor created a second incumbrance in in favor of bona fide mortgagees, which was registered long prior to the first mortgage, without notice of the vendor's incumbrance. Held, that the want of a receipt for the consideration money upon the deed to the purchaser was not sufficient to postpone the second incumbrance.* The principle that a vendor, by taking from a pur- chaser an endorsed note as security for unpaid purchase money does not thereby lose his vendor's lien, is equally applicable where the 1 Flint V. Smith, 8 Urant, 339. 2 Rutlierford v RiUkerford, 11 Grant, 565. ZDe Gear v. Smith, 11 Grant, 570. Shennan v. Pa/rsill, 18 Grant, 8. 1014 PROCEEDINGS IN THE MASTER'S OFFICE. security given is a bond, in which a third person joins as security. ^ It is clearly settled that the rights and franchises of a railway company do not prevail over a vendor's lien : and where land was sold to a railway company for the purposes of the road, and a mortgage taken to secure the unpaid purchase money, it was held that the vendor's lien was not thereby lost.'^ , It has also been decided to be lost, by taking as special security a sum of stock, which, being sufficient, or probably sufficient, to cover the purchase-money, was held,^ to have been pledged, that the vendee might have absolute dominion over the land ; and on the same princi- ple, it has been thought,* a mortgage upon another estate of the ven- dee would have a like operation ; the obvious intention being to burthen one estate, that the other might be free. Sir W. Grant was of opinion, that a totally distinct and independent security would be a substitution for the lien, and not a credit on account of it ; by which he meant, says Loi-d Eldon,^ not that a security, but the nature of a security, might amount to satisfactory evidence, that a lien was not intended ; and the latter learned judge adds, that a mortgage is not conclusive ground for the inference that a lien was not intended, and that he could put manj' instances, that where a mortgage of another estate for the purchase-money would not be decisive evi- dence of an intention to give up the lien. The opinion of Sir W. Grant appears to be acquiesced^ in as a general rule by Lord St. Leonards ; and the doctrine which may perhaps be deduced from the different cases cited, is, that the taking a distinct security is always prima /acie'evidence that the lien has been abandoned ; but that this inference may be rebutted by proof of an agreement, or of circumstances leading to a presumption of an agreement, to the contrary. The "Vendor of lands having taken a mortgage upon them for the purchase money, accepted from the purchaser a transfer of other lands, the price of which he endorsed in ,the mortgage ; and the lands so transferred being subject to incumbrances, the vendor took 1 Sheennan v. ParsUl, 18 Grant, 8. 2 Oalt V. JBrie and Siagara, R. Co. , 16 Grant, 637- 3 Nairn v. Prowse, 6 Ves. 752. 4 Nairn v. Prowse, 6 Ves. 752. 5 In Macreth v. Symmmis, 15 Ves.348. 6 See Sxigd. V. & P. 862, 11th ed., for the cases and doctrine on the subject at length, aad Jlf ac»-e ■ • 3 Hobson v. Shearwood, 8 Beav. 486, and note there. 4 Bozon V. Bolland, 4 M. & C. 354 ; Lann v. Church, 4 Mad. 391 : Hall v Laver 1 Hare 571 5 Hall V. Laver, 1 Hare, 571 . > ■ i. 6 Worrall v. Harford, 8 Ves. 4. 7 Shaw y. Neale, 20 Beav. 167. OF REDEMPTION. 1019 immediately under consideration ; but as it sometimes happens in working out decrees for redemption and foreclosure, that a lien of this kind is set up, the subject will hereafter be noticed in con- sidering the doctrine respecting the possession of the title deeds of mortgaged estates. Section IV. — Of Redemption. The person who seeks redemption must show a good right to redeem, the mortgagee being entitled to hold the estate against all who cannot do so ; and if the defendant can make out a case which goes directly to show tliat the title is in another person than the plaintiff, the latter will not even be suffered to redeem at his peril. ^ But a plea in bar to a redemption bill, on the ground of want of interest in the plaintiff, has been held bad, where the mortgagor had" parted with his interest in the security to an assignee, for whose benefit he was seeking redemption ; though the assignee must be a party to such a suit.- In 1821 the plaintiff mortgaged three premises, (in Belleville, Kingston and Camden), to secure a debt payable in the following year. It was not then paid. Payment was urgently demanded in 1827, the mortgagees being then in great pecuniary difficulties, and the debt still remaining due, the mortgagees sold and conveyed, with absolute covenants for title, the property in Belleville, for what appeared to have been about its value at the time, and they gave credit for the amount on the mortgage. This property afterwards passed through several hands, and was bought by the present owner in 1887, who subsequently made considerable improvements on it, and dealt with it as absolute owner. Held, that this property was not redeemable by the mortgagor, on a bill filed in 1860, and that the effect of the sale and transfers by the mortgagees of the portion of the mortgaged property was to transfer to the purchasers a part of the mortgaged debt, proportioned to th(! value of the property transferred, as compared with the whole property mort- gaged. ^ 1 Loniax v. Bird, 1 Vern. 182 ; see Franoklyn v. Fern, Bar. Ch. 30 2 Winterhottffm' v. Tayloe, 2 Drew. 279. 3 McLellan v. Maitland, 3 Grant, 164. 1020 PEOCEEDINGS IN THE MASTER'S UFFICE. The Court refused relief on a bill to redeem, filed in 1852 by a mortgagor, who had given a mortgage to certain executors in 1827, payable in 1832, on property of not greater value than the amount secured upon it. The mortgagees having in 1832, after the- mort- gagor's default, sold the property for less than was due on it, and the mor*'^gor having, therefore, given possession to the purchaser in pursua^Toe of a letter from the acting executor (since deceased) to the mortgagor informing him of the sale, and requesting him to give the vendee possession, " in which case the executors relinquish all claim against you for the interest in arrear, &c." ^ Where a security was effected by an absolute conveyance, and a law conditioned to reconvey on payment of the debt, but instead of doing so, the mortgagee sold and conveyed the premises to other persons, whom the plaintiff alleged, however, had notice of the true title, but the only notice having been shown to be a mere casual conversation which took place in a bar-room of a tavern, upwards of fifteen years before the filing of a bill by the mortgagor to redeem; the Court refused redemption, and dismissed the bill with costs.^ The solicitor of mortgagees gave to the mortgagor a memorandum of the amount due, and, relying upon this, a third party purchased the equity of redemption. Upon a bill to redeem, the Court held the mortgagees not bound by the amount given in the memorandum, the evidence showing that the solicitor was not aware that the mortgagor had made the enquiry on behalf of the purchaser of the equity of redemption.^ A. lent B. $2,000 and took two mortgages from the borrower, each for $1,000, on separate properties. The mortgagee foreclosed one of the mortgages, and then parted with the property. Held, no bar to a foreclosure, of the other mortgage.* To a suit by a second encumbrancer, to redeem the prior encumbrancer, the owners of the equity of redemption are necessary parties.* If the right to redeem be fairly dependent on the validity of an instrument, there will be no declaration as to the terms of redemp- tion until the question of validity has been settled.** A trial at law 1 ClutR V. Macaulay, 4 Grant, 410. 2 Clarke v. Little, 6 Grant, 363. 3 Mogalt V. Bank of Upper Canada, 5 Grant, 374. 4 Bald V. Thomson, 16 Grant, 177. 6 Long T. Long, 16 Grant, 239. Blake v. Foster, 2 Ba. & Be. 387. OF REDEMPTION. 1021 to settle the right may be granted, where a presumption of a plain adverse title to the equity is made out ; as where^ a person claim- ing to redeem under the heir general, the defendant set forth a deed of entail, by virtue of which the title appeared to be in another ; but a trial will not be granted merely that a defendant who has produced no evidence of his own title, may have an opportunity of contesting the plaintiff's claim, especially if the claimant have been in possession as assignee of the mortgage, with knowledge of such claim.2 The court, on the other hand, will act upon a prima facie title shown by the plaintiff, however complicated it may be, if it be supported by satisfactoiy evidence, and be uncontradicted, except by a mere allegation of an adverse claim ; considering that the only matter determined is the right of redemption, the decree for which will not hinder an adverse claimant from asserting his title, at law or in equity, in another proceeding.^ So if, but not unless, the plaintiff make out a prima facie title to redeem, as by showing that he is an encumbrancer on the estate, the court, without determining in what rank he stands, or who are the other persons entitled to redeem or foreclose, will, upon motion in the cause, restrain* the first mortgagee from transferring or assigning the mortgage security, and from conveying or otherwise dealing with the legal estate in the hereditaments comprised in the security, until the rights of the parties can be settled, upon the principle of protecting the security pending the litigation ; but it wiU not interfere with the possession of the deeds. And the court will take this course the more readily if the first mortgagee have contracted to deal with the estate by surprise, or under circum- stances showing an intention to deprive the puisne mortgagee of his rights ; as where the agreement for sale was made after the filing of the bill to redeem, do objection having been made to the right to i-edeem till the six months' notice of payment had nearly expired. Where the right to the equity of redemption is in dispute, the 1 Lomax v. Bird, I Vem. 182. 2 Lloyd V. Wait, 1 Ph, 61. 3 Lloyd V. Wait, 1 Ph. 61. Pym v. Bowennan, 3 Sw. 241, note : and see 2 Hare, 118, note (b). i Rhodes v. BxKkland, 16 Beav. 212 ; James v. Bimi,, 3 Sw. 234. 1022 PROCEEDINGS IN THE MASTER'S OFFICE. mortgagee may file a bill, in the nature of a bill of interpleader, praying that the defendants may settle the right between them- selves, so that the plaintiff may not put his money to a wrong hand.^ But the court will not, at the instance of a mortgagee, direct inquiries to ascertain the title to the equity of redemption, where none of the persons claiming it are parties to the suit : because it is said,^ the mortgagee having but a redeemable interest, if he were paid off, there would be no one to pay the costs of the inquiry. Where the administratrix, having bought at Sheriff's sale the interest of the mortgagor, paid off the mortgage debt, and, treating the property as her own absolute estate, afterwards mortgaged the premises : the Court, at the instance of the heir-at-law of the mortgagor, directed an enquiry as to whether the property was purchased at Sheriff's sale with the assets of his ancestor, and that the amount so applied should be deducted from the amount due upon the mortgage given by his ancestor, and that he should be let in to redeem upon payment of the balance.^ Per Blake, C. : "As to the manner in wlifch the account is to be taken, it is, we apprehend, quite clear that where an assignment of a mortgage is taken without communication with the mortgagor, the assignee takes subject not only to the then state of the account between the mortgagor and mortgagee, but also subject to all such changes as may take place before the mortgagor has notice of the assignment."^ A mortgagee having filed a bill to foreclose against two rival claimants of the equity of redemption, the Court du-ected the usual redemption by, and conveyance to, the person prima facie entitled to the equity of redemption, with a right to the other claimant, at any time before the day appointed for payment, to shew himself to be entitled.^ And where there was a conveyance of land, upon an advance of money, and a bond to re-convey given by the pretended purchaser, with a condition that at the end of a year, upon payment of the sum advanced, and an additional sum calculated upon the value of money for that time, the transaction 1 Shotholt V Bucow, 2 Eq Ca. Abr. 173. 2 WetheriU v. Garbult, 1 Sm. & Oif. 124. 3 Warren v. McEenzie, 1 Grant, 436. 4 Matthews v. Walwyn, 4 Ves. 118, 5 Ramsay v. Thjii, 12 Ves. 49 ; and see Page v. Cooper, 16 Beav. 396. OF FOEEGLOSURE AND SALE. 1035 himself of the legal estate, or otherwise for the protecting of his security, and this may be done even after an actual tender to him of the amount alleged to be due, if the proper notice of payment had not been given ; and even after notice, if the sum tendered be considered insufficient through at the peril of costs if it turn out that a proper amount was tendered.'- And in such a suit, the court will not enter into the question of the amount due upon the security, unless, it seems, there be such a complete offer by the defendants to pay all that shall be found due, if the whole of the mortgagee's claim be established, as wiU enable the court to decree a foreoiosure in case of non-payment in pursu- ance of the offer. So the mortgagee of a remainderman who has a vested (but not of one who has only a contingent) ^ interest, and whose title is clear, and free from reasonable cause of litigation, may sue the tenant for life for production and inspection of the title deeds, that the plain- tiff may be enabled to deal with his property to the best advantage ; and if it be suggested, that the production is required for an im- proper purpose, the burden of proving the assertion lies on the person who resists the production.^ The mortgagee may also proceed generally against the assets of of the deceased mortgagor, in which case, he may,* and ought,^ to sue on behalf of himself and all other creditors of the mortgagor, though it was formerly considered, that the conflict between his interests and that of the other creditors was a bar to that form of suit." A mortgagee may foreclose without taking possession, which the court will never compel him to do, because it makes him liable to an account ; '' but if he have been in possession, it is proper to state the fact in a bill, and the omission to do so may affect his right to cost.* 1 Gritgeon v. Gerrard, 4 Y. & C. 119 ; Jif alone v. Geraghty, 3 Dru. & War. 246 ; see also Sporle v. Whayman 24 L. J., Ch. 789 ; 20 Beav- 607. 2 iVoci V. Ward, 1 Mad. 322. 3 Davis V. Ban of Dysart, 20 Beav. 405 ; 19 Jur. 743. i King V. Smith, 2 Hare, 239 ; Skey v. Bennett, 2 Y, 4 C. C. C. 406 ; Brocklehurst v. Jessop, 7 Sim. 438 ; Parsons v. Westbrook, 5 Beav. 188. 6 Blair v. Ormond, 1 De G. & S. 428. 6 1 Sim. & St. 862 ; Ihiikes v. Hall, Exch. E. T. 1838, cited 3 Y. & 0. 605. 7 6 Ves. 106. 8 Binnington v. Harwood, T. & R. 477. 1036 PROCEEDINGS IN THE MASTER'S OFFICE. Of the Right to the Mortgage Debt. It was formerly considered, that, although where there was a col- lateral security by bond or covenant for the mortgage debt, it be- longed to the personal representative of the mortgagee ; yet that if there were no such security, nor any want of assets, and the condi- tion of a mortgage in fee was for payment to the heir or executor, the heir might become entitled to the land, as real estate absolutely vested in the mortgagee.^ But it was soon after adjudged, and has ever since been held, that in all mortgages the money must go to the executor or administrator and not to 5ie heir of the mortgagee, unless the later in his lifetime,^ or by his will,^ do otherwise dispose thereof. And this doctrine rests on the ground that the principal right of the mortgagee is to the money, and his right to the land is only as a security for the money ; as soon as the mortgagor pays the money, the land belongs to him, and the money only to the mortgagee. And the question of assets or no assets, or the existence or want of a personal security, was declared to be no measure of justice to the personal representative, but only a pretence to favor the heir.* Nor is the entry by the mortgagee an act which makes the mortgage part of his real estate.^ The heir of the mortgagee is, therefore, before foreclosure, or release of the equity of redemption, only a trustee for the mortgagee's executors, and if the mortgagor himself be the heir of the mortgagee the legal estate will not pass to the devisee of the mortgagor, under a general devise of real estates in trust for sale f for to hold the contrary, woidd be to assume that the mortgagor had authorized his devisee to make a sale, which would be a direct breach of trust. The executor of a mortgagee has not, under the provisions of the Statute (Con. Stat. U. C. ch. 87, section 5), any power to sell and convey the legal estate held by his testator to a person purchasing 1 St. John V. Grabham, 11 Car. 1, cited 2 Ch. Ca. 88. 2 Cotton V. lies, 1 Vern. 271. 3 Noys V. Mordaunt, 2 Vern. 681. 4 Smith V. SmouU, 2 Ch. Ca. 88 ; Thornborough v. Baker, 1 Ch. Ca. 2 3; 3 Sw. 628 ; Sleeker v. Tanton, 2 Ch. Ca. 29 : Winn v. Littleton, 1 Vern. 3 ; Tabor v. Grover, 2 Vern 367 ■ Cannimj v* Hicts,! Vern. 412. ' ^ ' 5 Noy V. Ellis, 2 Ch. Ca. 220. 6 Ex parte Marshall, 9 Sim. 656. OF SALE. 1037 the mortgage.^ To remedy the inconveniences pointed at by the Chancellor in this case, the Statute of Ontario, 32 Vic. ch. 10, was passed^ It repeals sec. 5 of ch. 87, Con. Stat. U. C, and enables executors or administrators of mortgagees to release the land, to assign the security, and to convey all the legal estate in the mort- gaged premises. Section VI.— 0/ Sale. The Court of Chancery in England is empowered by statute," in any suit for foreclosure of the equity of redemption in any mortgaged property, upon the request of the mortgagee or of any subsequent incumbrancer, or of the mortgagor or any person claiming under them respectivgly, to direct a sale of such property, instead of a foreclosure, on such terms as the court shall think fit ; 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 be made by any such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respec- tively, the court shall not direct any such sale without the consent of the mortgagee or the persons claiming under him, unless the party making such request shall deposit in court a reasonable sum of money, to be fixed by the court for the purpose of securing the performance of such terms as the court shaU think fit to impose on the party making such request. The Imperial statute 15 & 16 Vic. ch. 86 gives no absolute right to the parties to require a sale, but a power to the court to decree it, in any suit for foreclosure of the equity of redemption in any mort- gaged property. The object of the act is • to avoid the delay and expense occasioned by successive redemptions, and the court has a considerable discretion in applying its power ; ^ which it exercises with a view to the general benefit of the persons interested, without ■ injury to any of them : a sale has been accordingly refused upon evidence, that the land was likely to increase in value, and would* not fetch its value upon an immediate sale ; so that if it were sold, injury would be done to the mortgagor and the 'puisne incum- 1 Robinson v. Byers, 9 Grant, 672. 2 16 * 16 Vic. 0. 86, 3. 48. 16 Beav. 374 1038 PROCEEDINGS IN THE MiSTEE'S OFFICE. brancers.i The court has also expressed reluctance to order a sale, unless the complication be such that the common decree cannot be conveniently worked ; and therefore ^ refused it in a case where there were three mortgages, and the sale was sought by the subsequent incumbrancers only. But a complicated state of affairs does not seem to have been since thought a necessary condition for the order of sale.^ A sale has been directed upon the petition of the insolvent mort- gagor, and some of his creditors, after a decree by which the insolvent and his assignee had been foreclosed without any opportunity of redeeming ; and where a puisne mortgagee, after buying up the rights of the assignee and of other incumbrancers, had contracted for a sale without the authority of the court.* Orders 426, 428 and 429 of the Consolidated General Orders have been framed from this statute. Ojder 426 declares that, " Instead of foreclose re the bill in any mortgage suit may pray a sale of the mort- gaged premises, and that any balance of the mortgage debt remain- ing due after such sale may be paid by the mortgagor, and the same may be decreed accordingly." Order 428 declares that " The Court may direct a sale of the property instead of a foreclosure of the equity of redemption, on such terms as the Court thinks fit ; and, if the Court thinks fit, without previously determining the priorities of incumbrances, or giving ^ the usual or any time to redeem." And Order 429 directs that " If the request for a sale is made by a sub- sequent incumbrancer, or by the mortgagor, or by any person claim- ing under them respectively, the party making the request is to deposit in Court a reasonable sum of money, to be fixed by the Court, for the purpose of securing the performance of such terms as the Court thinks fit to impose." And by Order 430 it is directed that " K before, or upon the deposit to obtain a sale being made, •the plaintiff prefers that the sale be conducted by the defendant de- siring the sale, he may so elect ; and he is thereupon to notify the defendant of such election. The notice may be to the effect set forth in Schedule R." And Order 431 provides that " Upon the 1 Hurst V. Hurst, 16 Beav 372. 2 Hiorns v. Holtmn, 16 Jur, 1077. 3 See Bellamy v. Cockle, 18 Jur. 4ii6 ; Wiolrham v. Nicholson, 19 Beav. 38. 4 Laslett V. Cliffe, 2 Week. R. 636; 2 Sm. & G. 278. OF SALE. 1039 plaintiif filing with the Registrar- a note of such election, and proof of service of such notice, the defendant making the deposit is to be entitled to a return thereof" The orders from which these are taken were not promulgated until 1853, and there was up to that time some difficulty in deter- mining in what case a sale would be decreed. These removed the difliculty, but the remarks made by Blake, C, in Meyers v. Har- rison ^ will be read with interest. An order of 29th June, 1861, provides, '" Where, upon a bill for foreclosure, a sale is asked for by a defendant, it shall be competent to the Court to require as a condition that the party asking the same shall conduct the sale at his own expense, dispensing in such case with a deposit, if the Court shall think fit." This order does not appear in the Consolidated General Orders, but it is presumed to be in force under Order 2 of these orders. It was held under the order of June that it did not entitle a defendant to insist upon a sale instead of a foreclosure against the consent of the mortgagee, without paying in the usua] deposit upon his under- . taking the conduct of the sale. The object of the order was to enable the Court to grant the defendant that indulgence upon the consent of the plaintiff in cases where the plaintiff desired to bid at the sale.* A subsequent encumbrancer is entitled to a sale upon the usual terms, where the plaintiff is an equitable mortgagee by deposit of title deeds, as well as where the mortgage is by deed.' Where the decree is for sale of mortgaged premises the Court will not on default grant an order of foreclosure ex parte} On motion for a decree, Spragge, V.C., decided that infant defendants are not entitled, as a matter of course, to an enquiry as to whether a sale or foreclosure is most to their benefit, but that some ground must be shown, and he directed an aflSdavit to be filed.^ There ap- pears to be some difference of opinion on this point — the general un- 1 Meyers t. Harrison^ 1 Grant, 449; decided in 1850. 2 Taylor v. Walker, 8 Grant, 606. 3 Kerr t. Bebee, 12 Grant, 204. 4 Garratt v. McDonald, 1 Chamb. Eep. 336. 6 Qrahami v. Dams, 2 Chamb. Eep. 24. 1040 PROCEEDINGS IN THE MASTER'S OFFICE. derstanding in the profession being different from the view above expressed.^ In this country a judgment creditor is entitled at his option to a decree either to sell or foreclose the estate of his debtor.^ In a later case, however, it was held that where the heirs of the mortgagor are infants and a foreclosure suit is instituted, the rule of the Court is to grant a reference, as of course, to enquire whether a foreclosure or sale is more for the benefit of the infants. But, if affi- davits are filed to satisfy the Court, as to the proper decree, or if the guardian consents, the reference may be dispensed with.^ In a suit for the sale of mortgaged property it appeared that a mesne incum- brancer held a mortgage on other property c^f the mortgagor ; the Court ordered an account to be taken of what was due on both se- curities, and in default a sale, but in the event of a sale taking place the premises would be conveyed to the purchaser relieved of any lien of such subsequent mortgagee.* Where a second mortgage does not notice the first, and contains absolute covenants for title, but there is no allegation in the plead- ings, and no other evidence than the mortgage thus affords that the mortgagor did not inform such second mortgagee of the first mortgage before the execution of the second, the Court will assume such to be the case so as to vest the equity of redemption in such second mortgagee under the Statute 4 & 5 William and Mary, ch. 16, sec. 3.^ The following are the provisions of the Statute referred to in this case : It has been provided by statute,^ that if any person shall bor- row any money, or for other voluntary consideration give or suffer any judgment, statute or recognizance, and shall afterwards borrow any other sum from any other person, or become indebted for othei valuable consideration, and for securing repayment or discharge thereof, shall mortgage his, her or their lands or tenements, or any part thereof, to, or to any trustee for, the said second or other 1 Note by Reporter to Orakaiti v. Davis. 2 McMaster v. Koble, 6 Grant, 681. 3 DiuUey v. Berczy, 13 Grant, 141, 4 Merritt v. Stephenson, 7 Grant, 22. 5 Meyers v. Uarrisony 1 Grant, 449. 6 4 & S W. & M. c. 16, 3. 2. OF SALE. 1041 lender or creditor, and shall not give notice to the mortgagee or mortgagees of the said judgment, statute or recognizance, in writing under his, her or their hand or hands, before the execution of the mortgage or mortgages ; unless the mortgagor or mortgagors, his, her or their heirs, upon notice in writing under the hands and seals of the mortgagee or mortgagee's, his, her or their heirs, executors, administrators or assigns, attested by two or more sufficient witnesses, of any such former judgment, statute or recognizance, shall within six months pay and discharge the same, and all interest and charges due thereon, and cause the same to be vacated or discharged by record ; then all equity of redemption of the said lands and tenements, as against the mortgagee, his repre- sentatives or assigns, is taken away from the mortgagor, his representatives and assigns, and the former may hold the mort- gaged property as against the latter for such estate and term therein as was granted and settled to the mortgagee, as fully as if the same had been purchased absolutely and without power of redemption. The like penalty has been attached in the case ^ of a mortgage by a mortgagor of the same lands or tenements, or any part thereof, which he has already mortgaged as a security for money lent, or which has otherwise accrued or become due, or for other valuable consideration (the former mortgage being in force and not discharged,) and without discovery of the former mortgage or mortgages, to the second or other mortgagee, in writing under the hand of the mortgagor. But the act expressly reserves^ the right of redemption of subsequent mortgagees. Prima facie a mortgagor is entitled to six months to pay amount of mortgage money ; to induce the Court to exercise the discretion vested in them by the General Orders, of directing an immediate sale, or a sale- at an earlier day, some special ground must be shewn.^ Where a suit is brought to enforce the sale of mortgaged pro- perty against the mortgagor and his assignee, the order for payment 1 4 & 5 W. & M. c. 16, s. 3. 2 Id. s. 4. 3 Rigney v. Fuller, i Grant, W8. The order referred to is sec. 2 of Order 32, of June, 1863, which is similar to Order 428 of the Con. G, O. 42 1042 PROCEEDINGS IN THE MASTER'S OFFICE. of any balance of the mortgage debt which may remain due after such sale must be against the mortgagor, and not the assignee.^ There was a diversity of opinion among the Judges of our Court on this point, which was finally settled by this case. The Order 32, of June, 1853, section 2, is the same in effect as No. 426 of the Consolidated Orders. A mortgage contained a covenant that the mortgagee v/ould re- lease any portion of the mortgaged land which the mortgagor might sell during the continuation of the mortgage, upon payment of £200 for every acre to be released. An assignee of the mort- gagor made a general payment upon the mortgage, and afterwards, upon selling a portion of the land, demanded a release therefor from an assignee of the mortgagee under the covenant contained in the original mortgage. Held, that the benefit of this covenant would pass to an assignee of the equity of redemption, but the mortgagor or his assignee could not claim a release from the mort- gagee, unless the latter received the stipulated amount per acre upon the sale of the particular portion of the land required to be released : no general payment by a mortgagor on the mortgage would be sufficient.^ When a mortgagor becomes Insolvent, the mortgagee is not compelled to go in under the Insolvency Act of 1864. Per Mowat, V. C, " A mortgagee is not obliged to file a claim, but is at liberty in lieu thereof, to exercise the power of sale contained in his mort- gage. ^ The chartered Banks of this province have a right to a decree of foreclosure upon a mortgage held by them as security.* It may here be mentioned that the Court, where it is considered beneficial to the interests of an infant defendant, will direct a sale instead of a foreclosure, without requiring any deposit to cover the expense of such sale.^ In a subsequent case a sale was 1 TurTlbull V. SymmoTids, 6 Grant, 615. 2 Weiber v. O'Neil, 10 Grant, 440. 3 Gordon v. Boss, 11 Grant, 124. 4 Bank of Upper Canada v. Scott, 6 Grant, 451. 5 Bank of Upper Canada v. Scott, 6 Grant, 451. OF SALE. 1043 ordered without requiring a deposit, in a suit for foreclosure.^ It must appear clearly that the Master reports a sale to be beneficial , for infants before a final order for sale will be made.^ On a motion for a decree V. C. Spragge decided that infant defendants are not entitled, as a matter of course, to an enquiry as to whether a sale or foreclosure is most to their benefit, but that somo grounds must be shewn; and he directed an affidavit to be filed. ^ But in a sub- sequent case it was held that where the heirs of the mortgagor are infants, and a foreclosure suit is instituted, the rule of the Court is to grant a reference, as of course, to enquire whether a fore- closure or sale is more for the benefit of the infants ; but if affi- davits are filed to satisfy the Court as to the proper decree, or if the guardian consents, the reference may be dispensed with.* After a decree for foreclosure, the defendant applied in Chambers for an order for sale, the property mortgaged being worth $1000, and the mortgage being for $157 ; and that the usual deposit might be dispensed with. The Secretary considered the General Order im- perative, and refused the application.^ Before the passing of the statute of 15 & 16 Vic. ch. 86 the Court of Chancery in England had power in certain cases to sell incumbered estates ; and the mode of applying the statutory power being limited by the terms of the act, and the power itself being to a great extent discretionary, it becomes necessary to consider, in what cases, and to what extent, a sale of incumbered property may be decreed in equity independently of the statutory power. The strict right of the legal mortgagee is foreclosure ; and, inde- pendently of the statute, he had no general right to a sale,® although, in particular cases, he is entitled to that relief The rights of the equitable mortgagee are less clear ; for there has been some difference of opinion as to the efiect, in this particular, of mortgages by deposit of title deeds. The principal has, however, been laid down, that where the equitable security is of such a kind, 1 Lawrasfm v. Fitzgerald, 9 Grant, 371. 2 Edwards v. Burling, 2 Cham. E. 48. 3 Graham v Davis, 2 Cham. R. 24. 4 Dudley v. Berezy, 13 Grant, 141. 5 Thompson y. Maeaulay, 3 Cham. K. 111. 6 1 Hare, 410. 1044 PROCEEDINGS IN THE MASTER'S OFFICE. « as to entitle its holder to call for a complete legal security,^ there the mortgagee's remedy ought to correspond as nearly as may be with that of a legal mortgagee, and the decree should be for fore- closure. But where the equitable security is no more than a charge or lien upon the estate, the only proper relief is by sale.^ Now a right to foreclosure clearly belongs to the mortgagee of the equity of redemption, who is entitled to this relief as against the mortgagor and subsequent mortgagees, without redeeming the first mortgagee,^ subject to whose mortgage he has the best right to call for the legal estate. And it seems that upon the principle stated above tl^ puisne mortgagee has no right to a sale. The depositee ?)f title deeds is also entitled to foreclosure, where the deposit is accompanied by an agreement to execute a legal mortgage.* And it appears to be settled, that where this stipulation exists, foreclosure only may be had. It seems to be doubtful in practice whether the same right belongs to equitable mortgagees with a simple deposit or with a memorandum without an agreement to execute a mortgage ; but it is submitted that such mortgagees are fully entitled to foreclosure, for it has been long held that they have a right to call for a mortgage, the deposit being evidence of itself of an agreement to make a legal security, which the court will carry into effect against the mortgagor or any who claim under him with actual or constructive notice of the deposit ^ and several well-known forms of decree ^ (one of which is said to have been penned by Lord Eldon himself) accoidingly direct, that upon default in payment, the depositee shall be entitled to the premises free from all equity of redemption, and shall have an absolute conveyance executed by the depositor or owner of the equity of redemption. 1 Parker v. Housefield, 2 M. & K. 421 ; Footner v. Sturgis, 6 De G. & S. 736 ; Jones v. Baiky, 17 Beav. 682. 2 Tipping v. Power, 1 Hare, 405 ; Footner v. Sturgis, 5 De G. & S. 736 ; see Toft v. Stephenson, 7 Hare, 1. 3 3 Hare, 38 ; Rose v. Page, 2 Sim. 471 ; Richards v. Cooper, 5 Beav. 304. 4 Perry v. Keane, Coote, App. 682 ; Pain v. Smith, 2 M. & K. 418 ; Moore v. Perry, 19 Jur. 126 ; Jones V. Bailey, 17 Beav. 682 ; Cox v. TooU, 20 Beav. 146 ; see also Frail v. Ellis, 16 Beav. 351. 6 Featherstonev.Fenv}ick,cit&il'B^o. C. C. 269, n. 1784; Harford v. Carpenter, \Kb; cited 1 Bro. C. 269, n. ; Bireh v. Ellames, 2 Anst. 428 ; Ex parte Wright, 19 Ves. 265. But the terms of the agreement may be such as to exclude the right to a legal mortgage ; as where the intention of the deposit was held to be only to secure the depositee against any loss which he might sustain from joining as surety in a promissory note ; and no liability having been incurred, he was entitled only to have the nature of the transaction and the purposes of the deposit reduced to writing. Sporle v. Whayman, 20 Beav. 607 ; 24 L. J. (Ch.) N. S. 789. 6 Newton v. Aldous, and other cases cited 2 M. .& K. 421 ; and Set. Dec. 211, ed. 2 ; and see Bireh v. Ellames, 2 Anst. 4:;8 ; Parker v. Housefield, 2 M. & K 419 ; Tylee v. Weli, 6 Beav. 652. OF SALE. 1045 In opposition to this view, several dicta and decisions are cited by a late eminent writer.^ One of the former, by Lord Cottenham is but the expression of a shadow of a doubt.^ In another,^ the same learned judge is reported to have said, " What right has an equitable mortgagee by deposit of deeds to ask for a legal mortgage ?" And this, Mr. Spence remarks, was cited, without observation, by Sir L. Shadwell, V. C. E.* But this fact does not show that the latter learned judge meant to express an opinion, that a depositee had no right to foreclosure. It seems clear, that he did not consider this right to be founded upon the right to call for a legal mortgage ; for immediately before citing Lord Cottenham, he said that the equitable mortgagee had no right even to require an assignment, adding, "he may file a bill for foreclosure, according to some authorities, or for a sale according to others."^ And it has to be observed, that Lord Cottenham, in citing the decrees for foreclosure above referred to though he Only decided the collateral question as to the equitable mortgagee's right to six^months' time to redeem upon sale, expressed no doubt as to his right to foreclosure ; but, on the contrary, dwelt strongly upon his title to remedies, corresponding as nearly as possible to those of the legal mortgagee.^ But whatever may have been Lord Cottenham's view, the dictum in question appears to be completely met by the authority of Lord St. Leonards, who, speaking of a deposit with a memorandum, merely expressing the purpose of the deposit, observed, " How can it be said in a court of equity, that he who has an equitable mortgage, and is entitled at any moment to file a hill to clothe himself with the legal estate, has not such a right under this enactment as enables him to sustain the present suit ?" ^ It may be observed, that the renjark of Sir. J. Wigram, upon which Mr. Spence also relies, that the owner of an equitable lien has no right but by sale,^ was not made in a suit for foreclosure, but on behalf of creditors ; neither does the word " lien " express with much accuracy, the eifect of a 1 2 Spence, Eq. Jur. 792, n. 2 In Price v. Carver, 3 M. & C. 161. 3 In Metcalfe v. ArcKbishop of York, 1 Myl. & Cr. 567. 4 In Moores v. Choat, 8 Sim. 616. 5 8 Sim. 515. 6 See Parker v. BousefieU, 2 M. & K. 419. 7 See IKalone v. Geraghty, 3 Dru. & War. 216 8 In Tipping v. Power, 1 Hare, 410. 1046 PROCEEDINGS IN THE MASTER'S OFEICE. deposit of deeds by way of equitable mortgage. In the cases ^ in which decrees for sale were made by the same learned judge, it does not appear that the question was discussed ; and even admitting the tendency df Sii\ J. Wigram's opinion to have been in favour of sale, and not of foreclosure, as the proper remedy, these decrees do not show that the latter is improper. It is not contended, that fore- closure is the only proper remedy ; for it is clear, that mere deposi- tees of deeds have been long held entitled to a decree for sale, and that the relief may ^ be had against the mortgagor himself or his assignees; and not, as sometimes it seems to have been thought, against the representatives only after his death.^ It is submitted, therefore, first, that it is not settled that a mortgagee by a simple deposit is only entitled to a sale. It would seem rather that by the practice of the court, and, perhaps, also, upon the principles upon which equitable mortgages stand, he is entitled to foreclosure or sale at his option ; to the latter by virtue of his equitable charge, and to the former upon the strength of his implied contract for a legal security. But secondly, where there is an express contract of that kind, there wiU be no decree for sale, but for foreclosure only, unless the contract be for a mortgage with power of sale, for then there may be a decree for sale ; * though such an agreement or power will not aifect the right of foreclosure.^ But there can be no sale in respect of a parol agreement to deposit a deed, as such a contract does not amount to an equitable mortgage.® It seems that the legal or equitable mortgagee has a general right to a sale, where the security is, or is thought to be, scanty -^ it is clear, that he may have this relief if he file his bill after the mort- gagor's death, stating that the personal estate is deficient ; and if the real and personal estate be represented by one person, it is not necessary to pray for an account of the personalty in the first" in- 1 King v. LcaA, 2 Hare, 67 ; Jordan v. Jmes, 2 Ph. 170 ; Whitworth v. Gauqain, 1 Ph. 729 ■ 8 Hare 416. 2 Meaux V. Fei-ne ; Spring v. Allen, cited 2 M. & K. 422 ; Russel v. Bmsel, 1 Bro. C. C. 269 ; Meller v. Woods, 1 Keen, 16 ; Pain v. Smith, 2 M. & K. 417 ; King v. Leach, 2 Hare, 67 ; and see 3 M. & C. 161 ; Prescott v. Tyl^r, 1 Jur. 470 ; Pipping v. Power, 1 Hare, 405. 3 Brocklehurst v. Jessop, 7 Sim. 438 ; 2 Y. & C. 730. 4 lii£ter V. Turner, 5 Hare, 281. 5 Perry v. Keane, Coote, App. 582. 6 Ex parte Coonibe, 4 Mad. 249. 7 Per Lord Hardwicke, 3 Sw. 208, n., Wise-imm v. Carbonell, where, although there was a bank- ruptcy, the sale was upon a bill in equity, the .security being " deficient ; '' 1 Eq. Ca. Abr. 312. The general right, where the security is scanty, is perhaps not quite clear. In Dashwood v. Bithazey, Mas. 196, a sale was asked because the security was " defective ;" by which it has been thought an imperfect and not a deficient security was meant ; but the context, it is submitted; rather shows that the word was used in the latter sense, and the authority of Lord Hardwicke is not to be lightly passed over OF SALE. 1047 stance.^ But it seems that where a sale was desired in a foreclosure suit on account of a defective security, it was necessary to file a supplemental bill,^ unless the original bill were taken pro confesso, when the decree is according to the statements, without reference to the prayer.* Although the " sales" referred to now are sales under the decree of the court, it may be well to introduce here an important decision in our own court, where it was stated, that it is the settled rule of equity that a mortgagee in exercising a power of sale must take reasonable means of preventing a sacrifice of the property ; hence, where a mortgagee took no means whatever for that purpose, and sold the property for half its cash value, the price received being near the amount due to himself, the sale was set aside.* In another similar case ^ it was held that a mortgagee, when act- * ing under a power of sale contained in his security, it not at liberty to proceed without any reference to the interests of the mortgagor. The mortgagee in such circumstances is in fact a trustee for the mortgagor, subject to his own claim upon the mortgaged estate. Where, therefore, the assignee of a mortgage with power to sell or lease the mortgaged premises, in default of payment of the amount remaining due upon the security, did not give any public notice of the intended sale, either through the newspapers, or by posting bills, notwithstanding which, and the protest of the mortgagee who had covenanted to make good any deficiency in case of a sale being enforced, the holder of the security proceeded with the sale, and sold for a sum little more than half the balance remaining due to a person cognizant of the facts, and then instituted proceedings against the mortgagee to enforce payment of the deficiency, upoji a bill filed by the mortgagee praying a declaration that he was dis- charged by reason of the conduct of the holder of the security, and for an injunction to restrain proceedings at law, or in the alterna- tive, to set aside the sale, the court set aside the sale, but refused the plaintiff" his costs, he having made several charges of fraud and 1 Daniel v. SHpwith, 2 Bro. C, C. 154. 2 Nosworthy v. Maynard, cited Moj. 196. 3 Vashwoodv. Bithazey, Mos. 196 ; and see 83 Ord May, 1845. 4 Latch, V. Furlong, 12 Grant, 303. 6 Riohnwnd v. Evans, 8 Grant, 608. 1048 PROCEEDINGS IN THE MASTER'S OFFICE. collusion against the defendants, which the evidence showed were wholly unfounded.^ Where the prayer of the bill is in the alternative for either sale or foreclosure the court will at the instance of the plaintiff make a decree for sale, and in the event of a sale failing to produce sufficient to cover the claim of the plaintiff order foreclosure.^ Per Spagge, V.C., " I have spoken with my brother Esten, and we are both of opinion that when the prayer of the bill is framed as here, no ob- jection can reasonably be made to a decree for the alternative relief, in case the sale fail to reahze sufficient to cover the amount found due the plaintiff for principal, interest and costs." In the Bank of U.C. V. Scott,^ Blake C, said : " But since the recent order of this court, which follows the Imperial Statute (15 & 16 Vic, ch. 86) the power to direct a sale, without the consent of the mortgagee 'cannot be denied ; and speaking for myself I have no doubt that the power there conferred ought to be exercised in favor of an infant defendant, whenever it can be made to appear that a sale would be for his benefit." The mortgagee of a reversion* was also entitled to a sale, on ac- count of the unproductiveness of the security ; and it is probably for the same reason, that this is the proper relief for the mortgagee of an adowson,^ who, however, may also have foreclosure.* It was also the practice in the case of an infant heir or devisee of the equity of redeinption,'' where it was more beneficial for the infant (and in an earlier case it was said to be proper),^ to direct a sale for payment of debts instead of foreclosure, because a sale woidd bind the infant, but a foreclosure would entitle him to a day to show cause against the decree after he came of age ; but before the act of 11 Geo. 4 and 1 Will. 4, ch. 47, this could only be done by the mortgagee's consent,^ and after it by consent only, in a foreclosure suit,i° until the passing of 15 & 16 Vict. c. 86. 1 Rwhtaoiid v. Evans, 8 Grant, 508. 2 Blachford v. Oliver, 8 Grant, 391. 3 6 Grant, 451 ; decided in 1858. 4 How V. Vigures, 1 Ch. E. 18 (33, ed. 3). 6 Maekerisie v. Robinson, 3 Atlc. 559. 6 Gardiner v. G-rijflth, 2 P. W. 403 ; see 3 Atk. 559 : Long v. Storie, 3 De G. & S. 308. 7 Davis V. Dowding, 2 Keen, 245 ; Scholeficld v. Ueajlold, 7 Sim. 667. 8 Booth V, Bich, 1 Vern. 295. 9 Mondey v. Mondey, 1 Ves & B. 223. 10 Farrow v. Eees, 4 Beav. 25. ' OF SALE. 1049 The circumstance that the mortgagor acquired an interest in the security, was held to be a reason, both for decreeing a sale, and for making it improper to foreclose. An instance of this was where the mortgagor was one of the mortgagee's executors ; and where this happens, if it be apprehended that the mortgagor is insolvent, the other executors should file a bill for a sale.^ The assignee under the insolvency of the mortgagor had no right to pray for a sale of the mortgaged estates in a suit for redemption of the several incumbrancers.^ A power of sale in a mortgage does not affect the right of fore- closure.* But a conveyance, charging an estate with a sum ot money and interest, and subject thereto in trust for a person therein named, with a power enabling the person, in whose favor the charge was made, to sell, on default in payment after notice, gives no right of foreclosure, there being no condition upon which a breach of for- feiture can arise ;* nor can there be a foreclosure, for the same reason; upon a mere trust for sale in favor of the creditor, though there be added covenants for repayment of the debt and interest, and for title, where they are in accordance with the trust.^ The proper relief in suits to realize such securities is a sale. It is clear that the mortgagee of stock, and of personal chattels,^ is entitled without any express power in his security, to sell the mortgaged property upon giving notice, but subject to the liability to account for the moneys received on the sale, and, after satisfaction of the principal and interest, to pay the residue of the produce, and to transfer the unsold stock to the mortgagor,^ and that he is not obliged to come to the court for foreclosure ; although he has a^ right to that relief also. And where the security is a reversionary in- terest in stock, there is also a right to foreclose, even with an express 1 Imcas^w. Seale, 2 Atk. 56. 2 Chappell v. Rees, 1 De G., M. & G. 393. 3 See Slade v. Rigg, 3 Hare, 35 ; Wayyie v. Hanka-m, 9 Hare, 62. Mortgagee with power of sale filii;ig bill to foreclose not directed on motion to sell. MS. Sir J. Leach, April, 1818, in 1 Mad. Ch. Pr. ed. 3, 668 The italics seem to show that the right to foreclose was not then thought, to be altogether unaffected by the power of sale. 4 Sampson v. Pattison, 1 Hare, 633 ; see Watson v. Waltham, 2 Ad. & E. 486. 6 Jenkin v. Row^ 6 De G. & S. 107 ; 16 Jur. 1131 ; and see Ex parte Price, 14 Jur. 53. 6 Lockwood v. Ewer, 2 Atk. 303 ; Kemp v. Westorook, 1 Ves. sen. 278 ; Dyson v. Morris, 1 Hare, 413 ; Tucker v. Wilson, 1 P. Wms. 260 ; 6 Bro. P. C. 193 ; where, however, the mortgagor had asked for a postponement of the sale. 7 Earrison v. Hart, 2 Eq. Ca^ Abr. 6 ; ComjTi's R. 395. 1050 PROCEEDINGS IN THE MASTER'S OFFICE. power of sale, though the mortgagee be not in possession of the legal interest ; and he is not obliged to submit to a sale.^ If a sale be desired, the mortgagee should pray for payment or sale, and the court will make the usual decree ; upon which, if default be made, the sale will take place.^ The mortgagee of a policy of insurance is also entitled to a sale.* Sale may be ordered* where it is the proper remedy, though fore- closure only be prayed, and though there be no right to foreclosure ; but upon a biU asking for a sale only, it was said^ that the plaintiff was not entitled to any other relief; which is probably true as a general proposition, foreclosure being an original and general, and sale a special right ; but in the case last cited the mortgage was, for a term, with a trust for sale of the fee. Now, as such a security gave no right to a sale of the term, nor, it seems, to foreclosure of the fee (though the plaintiff contended for the latter relief), it seems to have been only meant, in the particular case, that on the general prayer for a sale there could be no foreclosure of the term ; the opportunity of foreclosing which was accordingly given to the plaintiff by permission to amend his bill. No sale can be made of a mortgaged estate as against a mortgagee with a paramount title without his express consent, unless it be made subject to the mortgage.^ 1 Slade V. Bigg, 3 Hare, 35 : Wayne v. Hanham, 9 Hare, 62. 2 Ponten v. Page, 1 Mad. Ch. Pr. 664, ed. 3, V. C. Plumer, 1816. 3 Dyson V, Morris, 1 Hare, 413. i Jenkin v. Bow, 5 De. G. & S. 110. 5 Kei-ricic v. Safery, 7 Sim. 317. 6 Langton v.-Langton, 19 Jur. 1078 PERSONS INTERESTED IN THE EQUITY OF REDEMPTION. 1051 CHAPTER XXX. OF THE PEOPEE AND NECESSAEY PAETIES. Section 1. — Of the Persons interested in the Equity of Redemption. Subject to certain exceptions created by orders of the Court of Chancery, and by statute the general rule concerning parties to suits in equity is, that all persons, who have an interest apparent on the record in the object of the suit, are necessary parties ; and no person ought to be made a party who has not such an apparent interest .1 Now the interests of parties to redemption and foreclosure suits arise either out of some right in the equity of redemption of the incumbered estate, or in the estate itself and the debt secured upon it in the hands of the mortgagee ; and, as a general rule, all persons who have an interest either in the right of redemption, or in the security, must be joined ; though the result may be the trial of a legal right, between parties thus brought before the court for a different purpose.^ In suits to foreclose the equity of redemption in mortgaged prop- erty, the judgment creditors of the mortgagee are necessary parties, but they may be added in the Master's office.^ Where there is only one principal and one surety, both must be made parties to a bill for foreclosure or sale. Where a mortgage is given by a surety on his own property, the principal is a neces- sary party to a suit for the foreclosure of the mortgage.* Order 6 of the Orders of June, 1853, section 8, is similar to order 62 of the Consolidated General Orders. 1 Calvert on Parties, 13—91. 2 Evans V. Jones, Kay 39 ; and see Spwrgeon v. Collier ; 1 Eden, 55 ; where, on a bill to redeem, it became necessary to decide as to the voluntary character of a post-nuptial settlement. 3 Sanderson v. Ince, 7 Grant, 383 ; and see Patterson v. Holland, 8 Grant, 238 ; Whan v. Lucas, Murney v. Pringle, v. Courtney, 1 Cham. R. 58 ; but now a judgment is not a lien, though &Ji.fa. against lands is, and therefore none but.^./a. creditors are made parties in the Master's OfBce. i Seidler v. Sheppard, 12 Grant, 466. 1052 PROCEEDINGS IN THE MASTER'S OFFICE. Of the Mortgagor. And, first, as to the mortgagor himself. He must be a party to every suit in which the question of redemption arises between mortgagees ; because, after giving liberty to the puisne mortgagee to redeem the first, the decree is, that the former, in his turn, may be redeemed by the mortgagor ; in default of which the latter shall be foreclosed. But if he be no party to the suit, his right of redemption will remain open, and the first mortgagee will be exposed to another suit.-^ The presence of the owner of the equity of redemption is also necessary, where part of the estate, which is subject to the first mortgage, is not comprised in the security of the second mortgagee, and even where the equity of redemption of the excluded part is no longer in the hands of the original mortgagor.^ For the prior mortgagee must be redeemed entirely, or not at all ; ^ and the sub- sequent mortgagee of part of the estate, upon paying off the whole debt in obedience to this rule, steps into the place of the other as mortgagee of the whole estate, and thereby, of necessity, acquires the right, and incurs the obligation, of bringing the owners of that estate before the court. The rule is the same, where the mortgagee holds securities upon distinct estates, and even for distinct debts of the mortgagor, whether the securities be by the same or by different instruments, and whether redemption be sought by an incumbrancer, or by the owner of the equity of redemption of part of the mortgaged estate or of one of the estates separately mortgaged.* And the mortgagor of another estate as a collateral security is a necessary party to a suit for foreclosure against the principal mort- gagor by virtue of his right to redeem, and thereby to prevent his own estate fi-om being burdened to a greater amount than the 1 Fell V. Brown, 2 Bro. C. C. 276 ; Palk v. Clinton, 12 Ves. 48 ; and see Ramsbottom v. WaHis, Coote on Mori. App. 676. 2 Palh V. Clinton, 12 Ves. 48. 3 Palk V. Clinton; see also Jones v. Smith, 2 Ves. jun. 372, and cases there mentioned ■ and Thomev- croft V. Crockett, 2 H. L. C. 239. ' ' 4 Ireion v. Denn, 2 Cox, 426 ; Oholmondeley v. Clinton, 2 Jac. & W. 134 ; Ea; parte Carter, Ambl. 733. OF THE MORTGAGOR. 1053 estate of his principal is insufficient to satisfy.^ But the surety is not a necessary party where, being bound by a personal covenant only, he has no security on the estate.^ But our Order 427 provides that " Where any person is surety for the payment of a mortgage debt, such person may be made a party to a suit for the sale of the mortgaged property, and the relief specified in Order (426,) may be prayed against both the mortgagor and his surety, and the same may be decreed accord- ingly." ■ A mortgagor conveyed part of the mortgaged property to a pur- chaser, the mortgagor covenanting against incumbrances ; and the mortgagee subsequently released the part so sold from his mortgage. Held, that as this release was in accordance with the mortgagor's own obligation as to that part, it did not affect the mortgagee's right to recover the mortgage debt, or his lien on the rest of the mortgaged property.^ And where a mortgagee and mortgagor sell and convey part of the mortgaged property, without the concurrence of a person to whom subsequently to the mortgage, the mortgagor had sold the remainder of the property, and whose interest was kuown to the mortgagee, and the mortgagee covenanted for freedom from incum- brances. Held, that the mortgagee having thereby put it out of his power to reconvey the whole of the mortgaged property, he could not call on the owner of the remaining portion for payment of the balance of the mortgage money. This rule does not apply where the sale is under a power contained in the mortgage, or where the mortgage is of chattels which a mortgagee has a right to sell without any express power. But it applies to a sale under a decree in a suit to which the owner of the unsold portion was no party. Where the mortgagee's right to claim a lien on the unsold portion has thus been put an end to, it is. not revived by his two years afterwards obtaining the consent of the first purchaser to a recon- veyance on payment of the mortgage money.* 1 stokes V. Clendon, 3 Sw. 160, n. 2 Newton v. £arl of Egmont, 4 Sim. 574. ' 3 Crawford v. Armour, 13 Grant, 576. 4 Gorwlantl v. Oarbutt, 13 Grant, 673. 1054 PROCEEDINGS IN THE MASTER'S OFFICE. Order 439 provides that " Where a bill is filed by a subsequent incumbrancer seeking relief against a prior mortgagee, such mort- gagee must be made a party previous to the hearing of the cause." And Order 440, that " Where the plaintiff, prays a sale or fore- closure, subject to a, prior mortgage, the prior mortgagee is not to be made a party either originally or in the Master's office, except under special circumstances to be alleged in the bill." Where there is only one principal and one surety both must be made parties to a bill for foreclosure or sale.^ The mortgagor must also be a party to a suit, in which the validity of the mortgage is contested.^ If the estate of a married woman be mortgaged, and the right of redemption be reserved to her and her husband, or either of them, she must be made a party.' When the wife of a mortgagor has joined in the mortgage to bar her dower in favour of the mortgagee, it is not improper to make her a party to a suit to foreclose the mortgage, although the con- veyance contains no express limitation of the equity of redemption to her. * But it was subsequently held that to a suit for the foreclosure of a mortgage, in which the wife of the mortgagor has joined to bar her dower, the wife is not a necessary party, and, if made a defend- ant, the biU as against her wiU be dismissed with costs. " If the tenant for life of a mortgaged estate, mortgage his life inter- est for a term, if he shall so long live, with a power of sale, he is a necessary party to a bill for redemption of the original mortgage brought by a purchaser under the power of sale, notwithstanding the smallness of bis interest; because the mortgage term was carved out of his interest in the equity of redemption.^ If the mortgagor have conveyed his equity to a subsequent mort- gagee, the consideration for the sale being the amount due on the 1 Cockburn v. Gillespie, 11 Grant, 465. 2 Thompson v. Baskerville, 3 Rep. in Ch. 215. 3 Hill V. Edmonds, 5 De G. & S. 603. 4 Savmderson v. Gaston, 1 Grant, 349. 5 Moffalt V. Thmnpson, 3 Grant, 111. 6 Hunter v. Maclew, 6 Hare, 238. OF THE MORTGAGOR. 1055 several mortgages, and payment thereof by the purchaser, the balance being applied to the dischar^ of the purchaser's own debt ; and a clear intention be shown that he' is to take the estate burdened with the debts, his own debt is destroyed ; and he being in the place of the original mortgagor, may be foreclosed without the presence of the latter.^ If the mortgagor or owner of the equity of redemption become bankrupt, ^ or insolvent, * he should not generally be made a party ; for his whole interest, and, therefore, his right of redemption, will be bound by a decree agaist his assignees, and if they release the equity he cannot redeem. And charges of fraud, not particularly directed to the matters upon which relief is sought, will not make the mortgagor a less improper party ; nor will a general charge against several defendants (of whom he is one) of possession of documents.* Such a charge will be referred to a possession by the defendants according to their rights and interests. And even if the insolvent, having been made, a party, be not dismissed^ he cannot appeal, though a right of redemption was given him by the decree, and though he allege that there is in fact a surplus.* To a suit of foreclosure against the assignees of a bankrupt mortgagor, the bankrupt is not a necessary party.* Per Blake, G. : " Upon looking into the authorities, we are of opinion that the plainttff has pursued a proper course in not making the bankrupt mortgagor a party ; and that, according to the cases of Collins v. Shirley,'' Sin^jleton v. Cox,^ Cash v. Belcher,^ and Kerrick v. Saffery,^'' he is entitled to the reference asked for." To a suit brought by or against a trustee of an insolvont's estate in respect of a sum owing by one of the debtors of the insolvent, the creditors for whose benefit the trust deed was executed are not necessary parties." 1 Bnyum v. Stead, 5 Sim. 535. 2 Kerrick v. Saffery, 7 Sim. 317 ; Lloyd, v. Lander, 6 Mad. 282. 3 Coltim V. Shirley, 1 B. & M. 638. 4 Lloyd V. Lander, 5 Mad. 282 ; see Rinci v. Martin, 2 Ves. jun, 641. 5 Rochfort v. Battersby, 14 Jur. 229. 6 Torrance v. Winterhott (from which this Order is taken), it was held that where the bill 1096 PROCEEDINGS IN THE MASTER'S OFFICE. was taken pro confesso against the mortgagor, it was not necessarjr to serve him with the notice set forth in schedule B to those Orders.^ There are, therefore, three different appointments to be served : I. Where a defendant is an encumbrancer as well as a party to the suit before the hearing — he is not made a party, but is served only with the notice T under Order 446. II. Where a defendant has answered or filed a disputing note — he is served with a warrant only. This warrant is underwritten thus : " To vouch and prove claims — " To settle report ; " To tax costs, and " To sign report on the .... day of neod, at. . . .o'clock. . . " III. Where an encumbrancer has been made a party in the Master's office — he is served only with notice T under Order 444. If infants are made parties, a guardian ad litem must be appointed in the usual way before the reference can be proceeded with, as this guardian will be the proper person to serve with the necessary appointment or warrant. It will be observed that the warrant is so underwritten as to make all its different branches attendable at the same hour. This is done as a matter of convenience merely, for it rarely happens that these proceedings in a foreclosure suit may not be completed in even less than an hour ; — where, however, any difficulty arises as to the plaintiff's account, or the proof of it — or where any party interested desires a reasonable time to consider the claims made — it is the duty of the Master to adjourn aU or such of the appointments V. Woodbridge, 5 U. C. L. J. 67 IISI ADDING PARTIES IN THE JIASTER'S OFFICE. 1097 as may be necessary to a future day, giving such reasonable time as may seem just to all the parties. Under the English practice, it was usual to issue separate warrants, attendable at different days. This was the practice at one time here ; and it is even now the practice of some Masters to appoint different hours during the same day for these different proceedings ; but this is not necessary, and in most cases it produces delay and inconvenience : for if all the par- ties are able and willing to conclude the whole reference at once, there is no reason why they should be obliged to wait for the arrival of a future hour ; and if it becomes necessary to delay any of the proceedings, the Master has full power to adjourn any or aU of them. The Master, having made the proper entries in his book as de- scribed, signs the notice under Order 444, or the appointment under Order 446, or the warrant, and gives them out to the solicitor for service. There is no time specified within which these must be made attendable. The Master has a right to make them so within two clear days after service ; but it is usual to allow fourteen clear days to elapse between the service and return, in order to prevent the confusion which might otherwise arise under Order 445. This Order declares that "Any party served with a notice under Order 444 may apply to the Court at any time within fourteen days from the date of the service, to discharge the order making him a party or to add to, vary, or set aside the decree." It may here be mentioned, that, where a person, made a party in the Master's office, appears and disclaims, he will not be allowed any costs, as he would eflect the same object by staying away.^ It sometimes occurs that the party to be served resides out of the jurisdiction. Section 6 of Order 7 of the Orders of 10th January ,> 1863, provided for such a case by declaring that " The time within which any party served with any petition, notice or other proceed- ing, other than a bill of complaint, was to answer or appear to the same, is to be the same as prescribed for answering or demurring to a bill of complaint according to the locality of service ;" and the 1 Hatt V. Park, 6 arant, 563. 1098 . PROCEEDINGS IN THE MASTER'S OFFICE. times for answering a bill according to the various localities without the jurisdiction were fixed by the five preceding sections of the Order ; these five have been copied in Order 90 of the Consolidated General Orders ; this one has been omitted, but it is presumed to be still in force under Order 2. If, on the day appointed for the attendance upon the appoint- ment, the solicitor may have not been able to effect all the services, he should, nevertheless, attend and get the Master to receive and mark in his book proof of such services as he may have completed, and he will adjourn the appointment until all have been served. The proper course in such a case is for the Master to mark on the notice, appointment or warrant the fact of the adjournment, thus : ' Ad- journed to A.B., Master." Order 448 directs that, " When all parties have been duly served, the Master is to take an account of what is due to the plaintiff, and to such other incumbrancers (if any), for principal money and interest, and to tax to them their costs, and settle their priorities ; and also to appoint a time and place, or times and places, for pay- ment, according to the practice of the Court." Where portions of an estate under mortgage are conveyed away by the mortgagor, one day for payment of the amount will be given to all the persons interested in the equity of redemption.^ When all the services have been completed, the plaintift"s solicitor attends, with any other solicitor who may be entitled, and the Master, after seeing that the services are properly proven, either by affidavit or admission, makes the following entry in his book : 1868. John Doe V. Richard Roe. 21st February. Mr. Jones' appointment from 21st January, 1868, (page ) attended by him for plaintiff. Mr. P. for defendant by bill. Mr. F., solicitor for William Smith, and Mr. C, solicitor for James Robinson. 1 Hill V. Forsyth, 7 Grant, 481. IN ADDING PARTIES IN THE MASTER'S OFFICE. 1099 The services are proven as follows : Richard Roe Served 1st February. William Smith " James Robinson " 2nd " I proceed on the claims now brought in. Generally speaking, the affidavit of claim should be made by the person entitled to receive the money ; but this is sometimes very difficult to obtain, for it not unfrequently happens that money belonging to persons in a foreign country is lent here by their agents — or it may be that the person who lent the money has removed to a distance, and has, since his removal, transacted the business of the mortgage, or other security, through an agent. In such cases, it is usual to allow the claim on the affidavit of the agent, but he must be able to state such facts as lead to the fair con- clusion that his acts have not only been authorized by his princi- pal, but that he has not been interfered with by him, either in the arrangements made or in the receipts of payments on account. If the Master should find reason to suspect that dealings have been had between the debtor and his creditor beyond the knowledge of the agent, he should require further evidence.^ Plavntiff's Claim. Principal due on the mortgage in the bill mentioned, dated 1st January, 1864, registered 10th January, 1864, given by the defendant, Richard Roe, to the plaintiff (or to one William Brown, as the ease may be), securing $1000 and interest at 8 pur cent., and assigned by the said Brown to one James Esk by deed dated 1st January, 1865, registered the same day, and by him to the plaintiff by deed dated 1st January, 1866, registered 10th January, 1866 $600 00 Interest thereon from 1st January, 1866, to lat July, 1867 (And so on, shelving the precise state of the account as set forth in the account filed, or as it should he if the calculations of interest are correct.) [If the account, however, be very lengthy, it will be proper to refer to it generally, both in the Master's book and in the report, giving only the results ; 1 Rea V. Shaw, 1 Ch&m. Eep.JSOO, and cases collected post. 1100 PROCEEDINGS IN THE MASTEE's OFFICE. • hut it idll be found the more satisfactory pradi-e to give very clear state- ments ; for it may he extremely dificult at a future day to explain to tlie Court, or to any one interested, tioio the results an: obtained, unless the 'Mas- ter be careful to ma/ce the necessary entries in his booJi.J Balance of principal now due . " " interest " $. Six months subsequent interest on $ (balance of principal) from .... (date of report) to $ . Costs taxed and r>"vi8ed at Total due plaintiff {six months after date of report). If the mortgage contains a covenant on the part of the mortgagor to ensure (but not otherwise),'^ and in default that the m,ortgagee may do so, and charge the amount paid to the mortgagor, and that it may form a further lien on the land, this amount shall form part of the claim, and should he set out in the affidavit of claim. If allowed, interest should also be allowed, — if any rate be specified, at that rate — if not, at 6 per cent. If taxes have been necessarily paid by the mortgagee, they form a proper charge on the land, and should appear in the account, xvhether there he any agreement respecting them, or not. Where the plaintifi' is assignee of the mortgagee it will be remembered that the effect of the affidavit required is pointed out by statute, Consohdated Statute of Upper Canada, ch. 87, s. 4, which enacts that " On any proceed- ing for foreclosure by, or redemption against an assignee of a mortgagee, the statement of the mortgage account under the oath of such assignee, shall be sufficient prima facie evidence of the state of such account, and no affidavit or oath shall be required from the mortgagee, or any intermediate assignee denying any pay- ment to such mortgagee or intermediate assignee, unless the mortgagor or his assignee, or the party proceeding to redeem, denies the correctness of such statement of account by oath or affidavit." 1 Kerty v. Kerby, 5 Grant, 587. IN ADDING PARTIES IN THE MASTER'S OFFICE. ■ I'JOli; II. Glavm of the said Willia/m Smith. Piin( ipal due on a mortgagH givc-n by the said Richard Koe to the claimant, dated Isfc Maj', 1865, registered 5Mi May, 1865. secur. ing $500 and interest $500 00 Interest thereon from 1st May, 1865, to 1st January, 1866 f20 00 Deduct rents and profits from 1st January, 1836, to Ist January, 1867, at $100 per year.,.., 100 00 80 00 $420 00 Interest on f 120 from 1st January, 1867, to (date of Report) f Deduct rents and profits from 1st January, 1867, to same date f Six months subsequent interest on % , {balance of principal after adding interest and deducting rents^ the rents hcfwever being applied first inpayment of interest) from to f Cost^ hIIow d at 1 $ 9 00 Total due on this elaim 1868. .$ \It may here he reTnarked that if the decree he for sale it is proper to compute six months suhsequent interest on all the claims, hecause the defendant is directed by the decree to pay all the claims at one time on the expiration of the six months ; hut where the decree is for FORECLOSURE, it is proper to compute the six months subsequent interest on the plaintiff's claim only, because the decree gives to the 'encumbrancer the right to redeem the plaintiff by paying him the amount found by the report to be due to him at the expiration of the six months ; and in the event of such redemption the defendant by hill, is required to pay him the amount so paid to the plaintiff, together with the arnount of his own claim, with all suhseqvbemt costs and interest. Where there are several encumhrancers, the proper course is to compute interest only on the claim of the last encumbrancer, but one. The further consideration of their claims will be delayed until the report is arrived at] 1 By analogy to the power conferred by Order 225, it is customary to save the expense of revision where nothing more than the ordinary proof by atfidavit is required by fixing these costs at $9, including the Master's fees, this being the usual amount allowed where a revision takes place. 1102 PROCEEDINGS IN THE MASTER'S OFFICE. III. Claim of the said James Robinson. Amount of a judgment received by this claimaut against the said Richard Boe, lOtb Junp, 1865, (on which a ft. fa. against lands was placed in the hands of the Shtriff of the County of on the 1st August, 1866, and duly renewed on the ) for true debt $200 00 Costs taxed at law 40 00 $240 00 Interest on $240 from 10th, June, 1865, to {date of report). .$., Ft. fa. goods an 4 The expMieney of this practice seems very doubtful : see remarks of Lord Eldon, in T. & R. 76, Jac. 526 ; and 2 J. & W. 348 ; and of the learned lords in Barlow v Osborne, ubi sup. 6 Ryder v. Earl Gower, 6 Bro. P. C. 806. 6 Baillie v. Chaujneau, 6 Bro. P C. 313 PROCEEDINGS UNDER AN ORDER FOR SALE. 1151 Any person may open the biddings ; and there seems to be no doubt that a person who is interested in the produce of the estate such as a residuary legatee/ or a tenant for life, or reversioner, may do so ^ but the opinion of the Court appears to have fluctu- ated upon the question, whether the Court will entertain an appli- cation to open the biddings on behalf of a party who was present at the sale. Thus, in M'Cidloch v. Cotbach,^ Sir John Leach, V. C, refused sucli an application ; but, in Thornhill v. Thornhill,^ Lord Eldon said, that, although the circumstance that the person pro- posing to open the biddings had been present at the sale might be an objection, yet many cases might be put, in which it would be impossible to act upon it as a general rule, and that each case must be governed by its own circumstances ; and, in Tyndale v. Warre,^ the same learned Judge said, that although the Court looks with jealousy at the circumstance of the person applying having attended the sale, the way in which that jealousy had been exercised was by expecting a larger offer to be made, under the idea of having a com- pensation by the largeness of the offer for any loss that may have arisen from the want of competition at the sale. In that case, his Lordship permitted the biddings to be opened on an advance of 600L offered upon 3,800Z.; and the same principle was afterwards acted upon, in Lefroy v. Lefroy,^ by Lord Lyndhurst : who refused to open biddings, on behalf of a person who was present at the sale, upon an advance of 300Z. upon 12,010L, but ordered it to be done if 500i. were offered and deposited. The rule of the Com't is that a purchaser at sale under a decree is not bound by any irregularity in the proceedings, so as to cause him to lose the benefit of his purchase; where, therefore, the Master in settling the conditions of sale, had given permission, contrary to the General Orders of the Court, to all parties to the cause, in- cluding the plaintiff who had the conduct of the sale, to bid ; and in his report erroneously stated that the sale had been duly adver- tised in two newspapers for four weeks next preceding the sale, when in reality if had been published in one of the papers for two 1 Hooper v. Goodivin, G. Coop. 95 ; Chapman v. Foivler, 3 Hare, 577. 2 Williams v. Attenborough, T. & R. 70-76. 3 3 Mad. 314 ; see, also, Somner v. Charlton, cited 5 Ves. 655 , Preston v. Barker, Iti Vet-. 140. 4 2 J. & W. 347. 5 Jac. 625. 6 2 Buss. 606 ; see, also, Cochrane v. Cochrane, 2 R. & M. 684 ; ShallcrosH v. Hibbersmi, 1 C. P. Coop. t. Cott. 380 : lie Jmies, 1 Giff, 284 : 5 Jur. N. S. 1243 ; Ware v. Watson, 7 Do G. M. Si G 789, 2 Jur. N. S, lz9. 1152 PROCEEDINGS IN THE MASTER'S OFFICE. weeks, and in the other for three weeks only ; but the practice under General Orders of 22nd Feburary, 1862, being that the party having the conduct of the sale, and not the purchaser, takes and files the report of the Master, and there being no allegation of the pur- chasers having been aware of the irregular proceedings, or any ground for imputing bad faith to them in the transaction, the Court refused an application made on behalf of the debtor to set aside these sales on account of such irregularities, and ordered the debtor to pay to all parties, including the purchasers, the costs of the application.^ Where an irregularity had occurred in adver- tising a sale, but no injury had thereby accrued, and a fair price had been obtained, the Court confirmed the sale.^ The Secretary, in Chambers, will not entertain a motion to confirm a sale where an irregularity has occurred, unless the sale has been approved of by the Master.^ An auctioneer acting under an order for sale, or Master, or other officer conducting such proceedings, is not bound by an order staying the sale, of which he has not notice. Where an order staying a sale for three weeks was gi'anted on the day the sale was to take place, and the Kegistrar telegraphed to the Master conducting the sale that such order was granted, and the message reached him after the sale, but before payment of the purchase money ; an order made by a Judge in Chambers, refusing an application to set aside the sale was sustained by the full Court on rehearing.* An order to open biddings will not be made after great delay against an innocent purchaser, unless misconduct is shown on the part of the purchaser.^ Biddings will not be opened, and a sale set aside on the ground that a party, (the defendant), was prevented from bidding by promises made to him by the pur- chaser ; such fact, if established, would constitute the purchaser a trustee for him, and would be subject for a suit.^ One lot of land out of several, sold under order of Court, was purchased for ^79 5s. ; after the sale another person came into the office of the plaintiff's solicitor, and offered £100. An application by the plaintiff, made imder the circumstances,, to substitute the latter person for the purchaser, was refused with costs.' 1 Dickey v Heron, 1 Cham. Rep. 149. 2 Cayley v. Colbert, 2 Cham. Rep. 46S. 3 Thmnas v. McCrae, 2 Cham. Rep. 456 4 The Freehold Permanent BuUdvng Society v. Choate, 3 Cham. Rep. 440. 5 Crooks V. Crooks, 2 Cham. Eep. 29. B Brock V. Saul, 2 Cham. Rep, 145. 7 McRoberts v. Durie, 1 Cliam. Rep 211 PROCEEDINGS UNDER AN ORDER FOR SALE. 1153 A solicitor having the conduct of a sale, cannot withdraw the property offered after a bid has been made ; his course would appear to be to move to open the biddings, if he has grounds for such a motion.^ An order to open biddings will not be made after great delay against an innocent purchaser, unless misconduct is shoM'n on the part of the purchaser.^ But the Court will, in a proper case, and upon conditions sub- stitute a proposed purchaser at an increased price, for a party who has purchased property at a sale, under a decreee of the Court, instead of opening the biddings generally, and directing a re-sale, giving the present purchaser the option to take at the increased price.' Biddings will not be opened, and a sale set aside on the grounds that a party, (the defendant), was prevented from bidding by promises made to him by the purchaser ; such fact, if established, would constitute the purchaser a trustee for him, and would be subject for a suit.* Mere advance of price, if the report on sale has not become ab- solute, is sufficient to open the biddings ; and they may be opened more than once.'' The biddings may. be opened where the sale has been made by sealed tender; '^ but the rule under which the Court permits a stranger to intervene, for the purpose of opening the biddings, has no application to a sale by private contract. If, however, any of the parties adduce evidence showing that there has been some error or miscarriage in the proceedings, or that the price is grossly in- adequate, the Court will refuse to confirm the contract.' Where a defendant, who had obtained an order to open biddings, but was outbid at the second sale, applied to open the biddings again, on an advance of 160Z. upon' 1,335L, Lord Eldon, as it ap- peared that notice of the motion had been given to the purchaser, 1 McAlpine v. Young, 2 Cham. Rep. 85. 2 Crooks V. Creoles, 2 ChSm. Rep. 29. 3 Harrison v. Patterson, 1 Cham. Rep. 363 ; see form of OrJer to be made in such a case, in a note to this case, page 364 of 1 Cham. Rep. 4 Brock T. Savi, 2 Cham. Rep. 145. 6 Sugd. V. & P. 115 ; Scott V. NesUtt, 3 Bro. C. C. 476. 6 Barlow v. Osiornc, 6 H. L. Ca 556 ; 4 Jur. N. S. 367 ; S. C. nom. Osborne v. Foreman,, 8 De G. M. & G. 122 ; 2 Jur. N. S. 361 ; Waterhome. v. Wilkinson, 1 H. & M. 636 ; Siujd. V. & P. 115, For the Order in Osborne v. Foreman, see Seton, 1207. 7 lUillican v. Vanderplank, 11 Hare, 136 ; and see Roberts v. Robinson, cited Seton, 1203. 49 1154 PROCEEDINGS IN THE MASTER'S OFFICE. who did not appear, made the order, jon the terms of the applicant paying all the costs.^ An advance of lOZ. per cent, was formerly considered to be suffi- cient to induce the Court to open the biddings;^ but, in Andrews V. Emerson,^ Lord Eldon said, that the rule of lOL per cent, was not a wise rule to establish, as the censequence was, that more was never got ; and desired it to be observed that, in future, there should be no such rule. In White v. Wilson,*' his Lordship repeated the same opinion as to the impolicy of such a rule : but said, that in some cases he should be satisfied with an advance of lOZ. per cent. ; in others he should be satisfied with less ; and in others, he should require more. And accordingly, in Brooks v. Snaith,^ it being a creditors' suit, his Lordship permitted the biddings to be opened upon an advance of 51. per cent, on 10,000?. In Garstone V. Edivards,^ however. Sir John Leach, V. C, who appears to have been favourable to an adherence to the rule of 101. per cent.'' re- fused an offer of 350L on 5,300L : observing, that where an advance so large as 500L was offered, the Coui-t would act upon it, though it was less than lOL per cent. So that, on the whole, it may be concluded that, although in the case of an advance of so large a sum as 500L, the Coui-t will permit the biddings to be opened,^ even if it is under lOL per cent., yet the Court, in ordinary cases, con- siders lOL per cent, (which is the usual amount of the deposit paid upon sales by auction out of Court,) as a proper deposit to be paid when biddings are opened.^ Where the timber upon a lot sold has been taken at avaluation, the advance must be calculated upon the amount of the timber, as well as upon the price of the lot.^" 1 Prestmi v. Barker, 16 Ves. 140. 2 ATum-.y 3 Mad. 494. In the following cases, however, besides those noticed in the text, the Court has opened biddings upon a less advance : Tail v. Lord Iforthwwk, 6 Ves. 656 f'ioo;. on 2 360Z.) ; Ayion , li Ves,. 148 (200J on 3,200!.) ; Lefroy v. Lefroy, 'i Russ. 600 (600!. on 12,010!.) ; Cochrane v Gochrmie, 2 R. & M 6S4(oOO!. on IS. 500!.) ; Lawrence v. Halliday, 6 Sim. S96 (300!. on 5,030!.) ; DomvUle v. Berrirujtm, i Y. ^t C. Ex. 723 (365!. on 7,300!.) : Barlow v. Oebonie, 6 H L. Ca. 5.50; 4 Jur. N. S. 367 ; S. C. noi/i . Osborne v. Foreman, 8 De (i. M. & G. 122 ; 2 Jur. N. B. 361 ; a Kile by sealed tender (1,500!. on 36,.'i00!.) ; Re Jones, 1 Gill. 2.S4 ; 5 Jur. N. S. 1243 (200!. on 2,600!.). The Court has refused to open the bidding.! for 100!. on 3,200!. in Anon., 6 Ves. 148 ; and for 300!. on 3,500!. in Uolroyd v. Wyatt, 2 Coll. .537. 3 7 Ves. 420. 1 14 Ves. 151. 5 3 V. S B. 144. 6 1 S. & S. 20. 7 See Anon., 3 Mad. 494. 8 Lefroy v. Lefroy, 2 Russ. 606. 9 See Anon., 3 Mad. 494 : B(mrn v. Boiirn. IS Sim. 189 ; Uolroyd v. Wyatt, 2 Coll. 637 ; Terson v. Hawkins, 18 Jur. 721, V. C. \V. 10 Bates V. Bonnor, C Sim. 330. PROCEEDINGS UNDER AN ORDER FOR SALE. 1155 Whatever the rate of the advance offered may be, the Court will not permit biddings to be opened unless it amounts to at least 40L ^ Thus, where, upon a sale before the Master, two lots were sold, one for 656Z., and the other for 91Z., and a person applied to open the biddings, at an advance of 701. on the first lot, and 301. on the other. Sir John Leach, V. C, refused to make the order as to the second lot : the advance being under 40L ; but his Honour recom- mended the party moving to make another application, that the biddings for the two lots might be opened, and that a resale might take place in one lot, upon an advance of lOOL on the two lots ; and this was afterwards done.^ In a similar case, however. Sir Lancelot Shadwell, V. C, although he allowed the biddings to be opened upon an advance of 1601. upon 710Z. for four lots, refused to direct them to be resold in one lot without some reason being assigned for it.^ In general, where biddings are sought to be opened of lots bought by different persons, a separate application, on a separate advance, as to each lot, must be made.* As the biddings are merely opened for the benefit of the suitor, the Court will not, usually, favour any other person ; therefore, where an application was made to open a bidding of 5,020Z. on an advance of 150Z. only, on the ground that the party had mistaken the time of sale. Lord Thurlow held the circumstance, that the bidder was too late, to be no ground at all, and said he would not open the bidding for a less advance than 500Z.« Where the biddings are opened, the purchaser is entirely dis- charged from his purchase ; and if he has paid a deposit, or any pai-t of the purchase money, into Court, he will be entitled to have it paid out to him. If he is the purchaser of more lots than one, and the biddings are ordered to be opened as to some of the lots which were first purchased by him, he will be allowed to have the biddings opened, and to be discharged from his purchase, as to all the lots which he has purchased : it being considered but reasonable, that if, having become the purchaser of a subsequent lot, in conse- 1 Farlow v. Weildon, i Mad. 460 ; sec Leeland v. Gnfflth, 2 Moll. 150. 2 BrookjKld v. Bradley, 1 S. 4 S. 23. 3 Wwrd V. Cooke, 9 Sim. 87. 4 aoodall V. Piekford, 6 Sim. 379. 5 Anon., 1 Ves. J. 45t. 1156 PROCEEDINGS IN THE MASTER'S OFFICE. quence of his being declared the best Jbidder upon the prior lot, he should, if he is deprived of the pui-chase of the first lot, have the option of retaining or retiring from the subsequent lots.^ The pur- chaser, in order to entitle himself to such an indulgence, should appear upon the application to open the biddings, and show by af&davit that he bid for the subsequent lots in consequence of his having been declared the best bidder for the prior lots, the biddings for which are opened.^ Where an estate was put up in four lots, and, at the sale, A. pur- chased lot 1, and the other lots were bought in, and, afterwards, B. opened the biddings, and, on the resale, became the purchaser of lots 1, 2, and 3, whereupon A. applied to open the biddings of lots 1 and 2, the Court would not permit him to do so, unless he would agree to take lot 3, if B. should retire from it, at the price it had been sold for to B., in case it should not fetch the same price at the resale.^ The rules which regulate the practice of opening biddings upon the sale of a landed estate, do not apply when a colliery is the subject of sale. In Williams v. Attenborough,^ where the colliery had been sold in one lot for 8,850L, Sir John Leach, V. C, directed the biddings to be opened upon an offer to give 10,000L : but Lord Eldon discharged the order, on the ground that, in the event of any- body else bidding more at the second sale, and being declared the highest bidder, the purchaser would be discharged, and his deposit could never be made a security for a subsequent bidder ; in the meantime, from the fluctuating nature of the property, a deprecia- tion might take place ; , and then, if the highest bidder at the second sale should not prove to be a bona fide purchaser, a loss would be occasioned to the owners of the property. His Lordship said that, in Wren v. Kirton,^ the Court was disposed to open the biddings, if security was given to answer the difference between the produce of 1 Price V. Price, 1 S. & S. 886 ; see also Fielder v. Fielder, cited 1 S. & S. 386; Boyer v. Blaekwell, 3 Anst. 656 ; Ex parte Tilslei/, 4 Mad. 227, n. ; 2 M. & K. 726. 2 See Fielder V. Fielder, cited 1 S. & S. 386. 3 Bates V. Bonner, 6 Sim. 380. 4 T. & E. 70-77. 5 8 Ves. 502. This case affords a remarl^able illustration of the danger of openin<^ biddings in the case of collieries. On the first sale, the colliery was 'sold for '.^3,000^. The Court opened the biddine;s, as it turned out, for a fictitious bidder. Afterwards, tlie biddings were again opened, and the lot put up for sale three times : on the two first occa-^ions the sum bid fell to 12,000i. and 6,000?.; at the last sale, it was sold for 15,000?. : and there was an actual loss of the difference between 23,000! and 15,000'. . seo T. & B. 73-74. PROCEEDINGS UNDER AN ORDER FOJ! SALE. 1157 the resale and of the original sale ; but that it was ovctr.jraely diffi- cult to manage the security, unless the whole money was paid into Court, toremain in Court as a pledge that the nextpurchasor should perform his contract. Where, however, a colliery had not been worked for ten years, the biddings were opened on the customery advance.^ On a sale of property held on lives, the biddings were opened on an advance of 350L on 5,5001. : the apphcant consenting to be bound in case no better bidding could be enforced.^ The application to open the biddings should be made after the report on sale has been filed ; ^ but before it has become confirmed.* After it has become binding, increase of price alone, however large, is not sufficient to induce the Court to grant the application : al- though it is a strong auxiliary argument, when there are other grounds.^ But very particular circumstances may, perhaps, induce the Court to open the biddings, after the report on sale has become binding, if the advance is considerable. Thus, in a case,^ where the owner of the estate (who joined in a motion for the purpose of opening biddings, after the report was absolutely confirmed, was in prison at the time of the confirmation, and it appeared that he would have opened the biddings before confirmation of the report, had he been able, and that he had even directed persons to bid more than what the estate sold for, who deceived him : an advance of 4,000Z. (more than one-fourth ofthe original purchase money,) being offered, the biddings were opened, on a deposit of the 4,000Z. being made. Strong as the circumstances in this case were, Lord Bldon, in a subsequent case, expressed great disapprobation of the decision, and determined, generally, that, after a purchaser had confirmed his report, unless some particular principle arose out of his character, as connected with the ownership of the estate, or some trust or confidence, or his own conduct in obtaining his report, the 1 Jiffreys v. Smith, 1 0. P. Coop. t. Cott. 381. 2 Walond v. Walond, 8 Beav. 352. 3 Lovegrove v. Cooper, 9 Hare, 279. 4 Bridger v. Pen/old, 1 K. & J. 28 ; Ware v. Watson, 7 De G. M. & G. 739 : 2 Jur. N. S. 129 ; Barlow V. Osborne, 6 H. L. Ca. 556; 4 Jur. N. S. 367 ; S. C. nom. Osborne v. Foreman, 8 De G. M & 6. 122 ; 2 Jur. N. S. 361 ; Sugd. V. & P. 116. 6 Ware v. Watson,7De G. M. & G. 739 Sugd. V. & P. 116-117; and see, contra, Chetham v. Qrugeon, 5 Ves. 86 ; see also Prideau^ \. Prideaux, 1 Bro. C. C. 287. 6 Watson V. Birch, 2 Ves. J. 61 ; 4 Bro. C. C. 172. llo8 PROCEEDINGS IN THE MASTER'S OFFICE. bidding ought not to be opened.' Lord Eedesdale, also, in a case before him, held that biddings could not be opened after the report was absolutely confirmed, unless on the ground of fraud on the part of the purchaser ; and said he considered it to the advantage of suitors to observe greater strictness in opening biddings, as it would procm-e better sales.' And in a still later case. Lord Eldon ad- hered to the same rule, and said that he could not do a thing more mischievous to the suitors, than to relax further the binding nature of contracts under the Coui-t : observing, that half the estates that were sold in the Court were thrown away, upon the speculation that there would be an opportunity of purchasing them afterwards, by opening the biddings." Fraud will, of course, be a sufiicient ground for opening the bid- dings.* Therefore, if a survey is made of an estate with some de- gree of collusion with the tenants, and it misrepresents the value and quality of the estate, and some of the purchasers are aware of this fraud in making the survey, and the owner is ignorant of it ; ^ or if the purchaser of the estate is partner with the solicitor in the cause, and is in possession of some particular knowledge, to the benefit of which the other parties are entitled :^ in such cases, the Court will open the biddings, although the report has become binding ; but the biddings will not be opened on the mere ground that the purchase was made by one of two intending purchasers who had agreed that one should buy, and share his bargain with the other.^ The application for an order to open the biddings may be made by motion, stating the advance ofifered.* The notice of motion, must be served on the person certified to be the purchaser, and on the parties to the cause. ^ Where, however, the purchaser died before report became binding, and his executors were served 1 Morice v. Bishop of Durham, 11 Ves. 57. 2 Fergus v. Gore, 1 Sch. & Let. 350. 3 White V. Wilson, 14 Ves. 151-153. 4 See Morice v. Bishop of Durham, 11 Ves. 57 ; Fergus v. Gore, 1 Sch. & Lef. 350 ; White v. Wilson, 14 Ves. 151-153. 5 Ryder v. Oower, 6 Bro. P. C. Ed. Toml. 306 ; S. C. Gower r. 6ower,2 Eden, 848 : Watson y. Birch, 2 Ves. J . 53 : 4 Bro. C. C 172. 6 Price V. Moxon, July 14, 17.54, before Ld. Hardwicke, cited Watson v. Birch, 2 Ves. J. 54 ; Ryder V. Gower, 6 Bro. P. C. 306. 7 Re Carew, 26 Beav. 187 ; 4 Jur. N. S. 1290 ; Sugd. V. & P. 117, n. (I.) ; and see Galtan v. Emms, I CoU. 248. 8 Setm, 1204. 9 Setoii, 1304 ; and see Sherwood v. Bemridge, 3 De G, & S. 426, 432. PROCEEDINGS UNDEK AN OKDEH FOK SALE, 1159 with notice of the motion, it was held that service on his heir was not necessary.^ If the Court approves of the sum offered, the ap- plication will be granted, and a resale directed. The order usually made directs the applicant to pay the pur- chaser's costs of the application, absolutely ; and that, upon the applicant paying to the purchaser his costs, charges, and expenses occasioned by his bidding for and being allowed the purchaser, ^ and also paying into Court, by a short time, the full amount of his advance,^ the property be resold ; and that if there is no bidding at the resale higher than the price offered by the applicant, on open- ing the biddings or at the resale, he is to be allowed the purchaser at that price ; but that if he is outbid, the highest bidder is to pay into Court a deposit on his bidding within eight days after the certifi- cate of sale : in default whereof the applicantis to be allowed the pm-- chaser, unless there is an intermediate bidder : in which case, the property is to be again put up to sale ; and the defaulting pui-chaser is to make good any deficiency, and pay the costs occasioned by his default.* If the discharged purchaser has paid a deposit, provision may be made, by the order, for recouping him the amount out of the ap- plicant's advance f and it seems the purchaser is entitled to in- terest on his deposit. "^ If, however, the deposit has been invested at his instance, he must take the stock in satisfaction of the amount laid out, whether the funds have fallen or risen since the invest- ment.'' f If the estate has been sold in several lots, and it is intended to have it resold in one lot, the applicant may be required to pay the original purchasers any charges and expenses they may have been put to, in having surveys made, before the biddings were opened. * Where, however, an application was made to Lord Eosslyn, upon a motion to open biddings, for a direction to the Master to include, 1 Templer v. Sweet, 8 Beav 464. 2 The discharged purchaser is not eutitled to the costs of perusiiiy: the abstract of title, where it has been sent to him prematurely; Raymond v. Lakeman, M. R., 15 April, 1S65 ; but see Watts t Martin, 4 Bro. C. C. Ed. Belt, 113. S Lord Thurlow's case, cited Anon., 6 Ves 51.?. 4 For form of order, see Seton, 1202. 5 Seton, 1207 : Raymond v. Lakeman, V. C. K.. forM. R. in Chambers, Sept. 1864. (i Banks -v . Banks, 16 Beav. 380. 7 Sugd. v. & P. 119. 8 Watts V. Martin, 4 Bro. C. C. Ed. Belt, 113. 1160 PROCEEDtN(iS IN THE MASTERS OFFICE. in the costs of the purchaser, the expense of a journey to see the estate, his Lordship refused to give any particular directions : say- ing, the Master would, under the general directions, make the al- lowance, according to the practice.^ The costs of the parties to the cause, of an application to open biddings are made costs in the cause. Where the amount of the advance was 7000L on 27,000J., the Court considered a deposit in Court of 3,400^. was sufficient.^ If the applicant fail to comply with the terms of the order, it will, on the application of the first purchaser, or any of the parties to the cause, be discharged with costs f and the Court will not grant the applicant further time to pay in his deposit, or make a second order to open the bidding at his instance.* Where he fails to draw up the order, or to act upon it, the order cannot be treated as a nullity, without notice to him : any other person may, however, apply to open the biddings by motion or summons : of which notice must be given to the former applicant, as well as to the other par- ties.° The proceedings upon the resale are usually the same as upon the original sale. If deemed expedient, the property may be allotted in a different manner.^ If the person at whose instance the biddings were opened is outbid at the resale, he is, upon the certificate of the resale be- coming binding, and upon the highest purchaser paying his deposit into Court, discharged from his offer; and may, upon motion, ob- tain an order for the repayment of his deposit.'' If the purchaser at the resale fails to pay in his deposit, the person at whose in- stance the biddings were opened will be declared the purchaser at the amount at which he opened the biddings ; or at his highest bidding beyond that amount at the resale, if there was no inter- mediate bidder.^ 1 Anon., 2 Ves. J. 288. 2 Manners v. Furze, 17 L. -T. Ch. 485, V. C. E. ; and see Banks v. Banks, 16 Beav. 380. 3 Banks V. Banks, 16 Beav. 380, n. 4 Seton, 1206 ; Colebrooke v, Clarke, 9 L. J. Ch. 130, V. C. E. 5 Gibbons v. Howell, 4 Mad. 52. 6 Watts V. Martin, 4 Bro. C. C 113 ; Humphries v. Roberts, 6 Jur. 680, V. 0. K. B. ; Ward v Cooke 9 Sim. 87 ; Seton, 1206. 7 Seton, 1206; Williams v. Attenborough, T. & R. 77. 8 See terma of order, ante , 1159. PROCEEDINGS UNDER AN ORDER FOR SALE. 1161 Where the applicant is discharged, he is not in general entitled to an allowance for his costs, as they are in the nature of a premium paid by him for the opportunity of bidding.^ Where, however, the biddings have been opened for the express benefit of the family, or the persons interested in the estate, the applicant has been allowed his costs, and interest on his deposit.^ If the applicant is outbid, he may apply to reopen again, on notice to the second purchaser, and the parties to the cause, and on payment of all the costs.^ The deposit paid ou opening biddings is considered as part of the purchase money paid : although, in the event of the depositor not being allowed the purchaser, it must be returned to him; and therefore, where the deposit was laid out, on the application of the vendor, in the public funds, which rose between the time of the de- posit and the purchase being completed, the estate was held entitled to the benefit of the rise,* and the depositor was held not to be entitled to the dividends on the investment, but was allowed 4L per cent, interest on his deposit.^ Where a solicitor obtained leave to open biddings on behalf of one George Beauchamp, and, upon the resale, a person, who was declared the highest bidder, turned out to have been put forward by the same solicitor as a sham bidder, and did not complete his contract, Lord Hardwicke discharged the report of his being the best bidder ; and it being admitted by the solicitor that there was no such person as George Beauchamp, his Lordship ordered the solicitor to stand as best bidder, at the price at which he had opened the biddings.^ Where an estate is sold by order of the Court, the sale is gene- rally effected by public auction. The Court will, however, where it is for the interest of the parties, depart from its usual course and allow of the property being disposed of by private contract ; and 1 Riyby v. McNamara, 6 Ves. 466 ; Earl of Macclesfield v. Blake, S Ves. 214 ; Trefutis v. Clinton, 1 V. & B, 361, 2 Owen V. Foutks, 9 Ves. 348 : West v. Vincent, 12 Ves. 6 ; Chapman v. Fowler, 3 Hare, 677 ; Filder V. Bellingham, 1 Coll. 626 : Gravenor v. Miles, 9 Jur. 838, V. C. K. B. ; Banks v. Banks, 16 Beav. 380, n. 3 Preston v. Barker, 16 Ves. 140. 4 Ambrose v. Arribrose, I Cox. 194. 5 Doyley v. Countess Powis. 1 rox, 208 ; 2 Bro. C. C. 32. 6 Molesworth v. Opie, 1 Dick. 289. 1162 PROCEEDINGS IN THE MASTER'S tn^'FlCE. the Judge may receive proposals for sale by private contract before or after the property has been put up for sale by public auction. Where it is proposed to sell the estate by private contract, the purchaser usualiy enters into a contract with the party conducting the sale, or some other party to the proceedings, or his agent, to buy the estate at the price and on the terms therein specified, sub- ject to the same being approved by the Court or Judge in the suit, within a limited time ; and where particulars and conditions of a sale of the property hj jjublic auction have been printed, a short contract, referring thereto for details, is usually indorsed on a copy of the particulars.^ The contract having been entered into, a petition is presented, or motion made, usually by the solicitor conducting the sale, that this conditional contract may be carried into effect. The petition or notice of motion must be served on all the parties to the cause that are interested in the sale, and must be supported by evidence showing, either that a sale has been directed, or that the Court has power to sell, and by an affidavit that the terms of the proposed contract are proper to be accepted, and likely to be more advan- tageous to the parties than if the property were offered to public competition. The person contracting to purchase sometimes at- tends at the hearing of the motion, and admits his signature to the contract. Where he does not, it seems usual and proper to require such signature to be proved by affidavit. If the Court or Judge is satisfied that the contract ought to be adopted, it will be ordered to be carried into effect;^ and where the Court is not satisfied, it sometimes directs an inquiry to be made at Chambers. Where the Court or Judge considers that any of the terms of the contract should be varied, and the purchaser appears and consents, the order may direct that the contract be varied accordingly, in the manner specified in the order, and as so varied be carried into effect ; and 1 The object of thia is, of course, to save the exjjense of repeating in the contract such matters applicable theretfj as are contained in the particulars ; but this is sometimes lost sight of, the parties agreeing to sell ** on the terms of the within conditions of sale, or such of them as are applicable to a sale by private contract." Many essential terms are thus left in uncertainty. As to contracts by agents, see Add. Cont. 586-634 ; Sugd. V. & P. 820 ; and for the sale of land, Add Cont. 66-117 ; Sugd. V. & P. 121-200 ; 1 Pridemtx Conv. 43-.52 ; and for forms of contracts of .sale, see 1 FrideauXy 53, etseq. ; 2 Davidson Conv 3-14. 2 Dowle V. Lucy, 4 Hare, 311 ; Pimm v. Insall, 10 Hare, App, 74 ; and see Bousfield v. Hodges, 33 £eav. 90. For form of order confirming a contract, see Seton, 1189 ; and for an order to carry into effect several contracts specified in a schedule, with directions to pay in, by reference to the schedule, see Smith v. Smith, cited Seton 1189. PROCEEDINGS UNDEK AN ORDER FOR SALE. 1163 where he does not appear, the order sometimes directs that, upon the contract heing varied in a particular way, it is to be carried into eifect.^ After the order directing a sale by private contract to be carried into effect has been made, the sale will not be opened because an increased price is offered.^ If the purchaser appears on the application to approve the con- tract, and accepts the title, the usual directions for the payment in of the purchase money, and the completion of the purchase, may be added to the order.^ Where a deposit is paid on entering into the contract, it is usually directed to be paid into Court within a limited time by the order confirming the purchase. In other respects, the practice after the order confirming the sale has been made is the same as the procedure on a sale by auction, after the certificate of sale has become binding, except so far as it is varied by the contract. Proceedings after the confirmation of the Report on Sale. Our order 389 provides that " At any time after the confirmation of the sale, the purchaser may pay his purchase money and interest, if any, or the balance thereof, into Court, without further order, upon notice to the party having the conduct of the sale, and when he is entitled to be let into possession of the estate, he may, if possession is wrongfully withheld from him, proceed at his own expense to obtain an order against the party in possession for the delivery thereof to him, or may call upon the vendor to cause pos- session to be delivered to him." To enforce possession the purchaser should apply on notice of motion to a judge in chambers which must be served on the person in possession, for an order for delivery of possession within a limited time ; and upon service of the order and of a demand of possession, and the pei-son in possession being a party to the cause, the purchaser may proceed by writ of assistance. If a person, not 1 See form m Seton, 1189, No. 2. 2 Miliican v. Vandtrplank, 11 Hare, 136. 3 SetoTit 1189. For form of summons to confirm contract, and pay in purchase money. 1164 PROCEEDINGS IN THE MASTER'S OFFICE. a party to the suit, be in possession, the purchaser must proceed by ejectment. But a purchaser of real estate, at sale, under the decree of the court will not be ordered to pay the amount of his purchase money into court until the title has been accepted or approved of ^ But in a subsequent case," in which no reference is made to CrooJcs V. Street, it was held that, where a sale has taken place un- der a decree of the Court, and ias been confirmed, an order will be made for the purchaser to pay the balance of his purchase money into Court, though no enquiry has been made as to the title. When a purchaser neglects to pay in his purchase money and no objection is made to the title, the Court will order him, within a limited time; to pay in the amount with interest, or, in default, direct a re-sale of the property, and that the purchaser pay costs of motion and defi- ciency, if any, on such re-sale.^ Where a purchaser, under a decree of the Court, makes default in completing the purchase, the Court, if it sees fit, will order the pro- perty to be re-sold, and the purchaser to make good any deficiency that may arise upon such re-sale ; but if the purchaser becomes in- solvent, and unable to complete the purchase, he will be discharged from it.* The result of these cases seem to be that the Court will order payment of the purchase money into Court, unless it is distinctly objected and shewn that the title is bona fide in dispute, and that the delay in payment is owing to the neglect of the party conduct- ing the sale in establishing a good title. Where money is ordered to be paid into Court, a payment to the solicitor of the party entitled to it is not a good one, and therefore is no ground for dispensing with payment into Court.^ 1 Crooks V. Street, 1 Cham. Rep. 95. 2 Re Stewart v. Stewart, 1 Cham. Rep. 243. In Rigiicy v. Matthews, cited in 1 Cliam. Rep, 243, a similar order was made by Esten, V.C. The luthontiei cited were Ilardi-ng v. Harding, 4 M. & C. 614 ; Samiders v. &ray, 4 M. & C, 614 ; Tanner v. Radford, 4 M & C. 519 ; aiidCra;/ v. Gray, 1 Beav. 199. 3 Crooks V. Crooks, 4 Grant, 376 ; decided June, 1854. 4 Re Heely, 1 Cham. Rep. 54. 6 Blaekium v. Sheriff, 1 Cham. Rep. 208. PROCEEDINGS ON ABSTRACTS OF TITLE. 1165 Proceedings on Abstracts of Title. Order 890 provides that, " After a sale under an order is con- firmed, the vendor is, forthwith upon demand, to deliver an abstract of title to the purchaser ; and if the purchaser does not serve ob- jections within seven days, he is to be deemed to have accepted the abstract as sufficient. If objections are served, the vendor is to answer them within fourteen days ; and if the purchaser is still dis- satisfied, and if the parties cannot otherwise agree, either party may obtain from the Master a warrant to consider the abstract." [Under the Orders of June, 1853, the Master was not at liberty to proceed upon the abstract without a special order referring the title to him. It seems, however, that this Order is now dispensed with, and the Master will, at the instance of either party, proceed to enquire into the title simply on his warrant. In order to proceed under this Order, the party desiring the enquiry brings into the Master's office and files the abstract and objections. Before considering the prac- tice in the Master's office, it will be convenient here to point out the requisites of an abstract, and the proof required to verify it. An abstract of title may be defined to be " a statement of the documents and evidences relating to certain particular premises, in which all that is necessary to enable counsel to form a correct judgment upon the validity of the title, is given at length, and all that is immaterial is retrenched." It is more usually prepared on a sale or mortgage of property, but not unfrequently on the settling or charging it. Its object is to show the actual state of the title of the premises to which it relates, and by what charges and incum- brances they are affected. Strictly, every judgment by which the property is bound should be mentioned in the abstract ;^ but equity considers it complete, if it appears that on certain acts done the legal and equitable estates will be in the purchaser.^ Formerly the title-deeds were delivered to the purchaser, and his solicitor pi'epared the abstract at his expense, and the abstract was compared with the title-deeds by the council before whom it was 1 Richards v. Barton, 1 Esp. N, P. C. 268. 2 See 8 Ves. 436 ; 1 Jac. & Walk. 421 ; 2 Sug, Vend. & P. 78, ed. 10. 1166 PROCEEDINGS IN THE MASTER'S OFFICE. laid.^ But now the purchaser, it seems, has a right to call for an abstra ct at the vendor's expense ; and he is not obliged to take the deeds themselves in lieu of an abstract, and may, if it be refused, enforce its delivery by a bill in equity.^ Very great care and attention, and considerable knowledge, are required to prepare a correct abstract of title. The immaterial parts of the deeds, wills, and other documents to be abstracted, should be slightly noticed ; the material parts should be fully given, and often set out verbatim. The abstractor, to do this correctly, must not only have a great familiarity with the parts and language of legal documents, but must also know the principles by which they are framed and construed. We shall now consider, in the first place, the proper form in which an abstract should be prepared ; and then mention the particular rules for abstracting the instruments which it usually contains. It will be found useful before commencing the abstract, to draw up a short account of all the documents to be abstracted, mention- ing their dates, nature, and effect. The abstract should be fairly written on the usual paper.^ A head or title is always given to the abstract, in which the situation of the property to which it relates, the name of the owner, and his estate or interest therein, should be shortly mentioned. The particular parcels to which the title relates are also sometimes mentioned. A copy of the agreement or condition of sale should accompany the abstract. If the lands are of peculiar tenure, it should also be mentioned in the head of the abstract. It is also usual to mention any qualifica- tion with which the premises are sold. The wills, deeds, acts of parliament, &c., should then be abstracted in the order of their dates ; all the material parts being given at 1 2 Siig. Vend. & P. 57, ed. 10, citing Temple v. Brown, 6 Taunt. 60, but this fact does not appear from the case. 2 1 Prest. Abs. 34 : 2 Sng. Vend. & P. 57. 3 Bug. Vend. & P. 58. Sir Edward Suffden says, tliat he frequently, when in proctico refused to peruse papers ille^bly written. ' PROCEEDINGS ON ABSTRACTS OF TITLE. 1167 length, and the unimportant parts being simply referred to. Some- times, however, it will be proper to arrange the abstract diiferently. Thus, if it relate to different parcels of land, or different terms of years, which have been purchased or assigned at different times ; or where the property has become vested in several persons as tenants in common, co-parceners or joint tenants, who have severed the tenancy, and there is a different deduction of title to the different shares, in such cases it will be proper to arrange all the deeds, &c., relating to any one portion together, and to head that part of the abstract with, •' As to the farm called A." &c., or "As to the third part or share of B." &c., and thus throughout the abstract. So where there is a first and second mortgage of the same lands, which have been transferred from time to time to different persons, it will be proper to depart from the strict chronological order of the deeds. So, also, it frequently happens that different parts of the lands to to be sold or mortgaged are held under different titles. In such cases there should either be separate abstracts of each part of the property, or all the deeds which relate to one part should be first abstracted, and then the deeds which i-elate to the other part should be given. By this means much confusion is prevented. Where an abstract is prepared with a view to show the title to different properties which have been purchased by different persons, a statement of the particular lands which have been purchased by the person on whose behalf counsel is instructed to advise, should accompany the abstract, and the instruments which relate to them should receive some mark of distinction.^ Besides abstracting all the documents of the title, all such facts as will elucidate the title, as deaths, marriages, births, descents, &c., should be stated in the abstract according to the time of their occurrence, and these facts must be verified by the proper legal evidence.^ Entries by disseisin, abatement, intrusion, &c., where they have existed, should also be stated.^ » 1 See 1 rrea. Abs. 38. 2 1 I'rcst. Abs. 43. 3 1 I'l'est. Abs. 48. 1168 PROCEEDINGS IN THE MASTER'S OFFICE. If the premises are of a different nature, as partly freehold and partly leasehold, there should be separate abstracts of each kind of property. The abstract should commence at the period fixed by the esta- blished rule on the point. What this rule is we shall hereafter consider. The instances where it will be necessary to furnish a title of a remoter date, will also be more properly considered in a subsequent part of this work ; but except in these cases, it will not be advisable to go further back in the title. A vendor may, upon a suit for a specific performance, be com- pelled on oath to bring into the Master's office all documents in his possession, or power relating to the title, and would not be entitled to withhold them from the purchaser if he required them ; yet clearly he is not bound to furnish an abstract commencing before the proper period, whether the purchase is completed in or out of of Court.^ It will be useful to mention, at the foot of the abstract, whether the vendor or mortgagor is married, and if so, whether the wife is dowable out of the lands to be sold or mortgaged. Here may also be noticed any peculiarity in the situation of any of the parties to the transaction. The legal and equitable titles should be deduced to the vendor or mortgagor, or his trustees, or it should be shown that he has the means of obtaining conveyances of them from the parties in whom they are respectively vested. The history of all terms of years should also be brought down to the time of delivering the abstract, and it should be shown whether they have been merged or in whom they are vested. The discharge and satisfaction of all incumbrances and charges must be clearly shown in the abstract, and must be verified by the proper evidence. It should also be shown which of the title-deeds are in the pos- session of the vendor, or of which he possesses copies, and in what way he can enforce th6 production of the originals. 1 2 Siig. Vend. & P. 57. AS TO ABSTRACTING DEEDS. 1169 Having made these general observations on the form of the abstract, we shall mention the principal rules for abstracting the usual contents of the abstract ; and it will be convenient to consider, first, abstracts of title of freehold property ; and secondly, abstracts of title of property not freehold ; but many of the observations contained in the first section will necessarily be applicable to the preparing the abstracts treated of in the second section. I. — Abstracts of Title of Freehold Property. The contents of abstracts of title of freehold property are — 1. Deeds ; 2. Wills ; and 3. Miscellaneous Documents. 1. — As to abstracting Deeds. Bate and Parties. — The date and parties, with their residences, must always be carefully and correctly abstracted. It is also usual to mention the nature of the deeds, as a lease and a release, bargain and sale, &c. • The characters in which the parties act, are also frequently and properly stated, as heir, executor, &c. Any facts connected with the parties are also frequently mentioned, as " Between A.B., since deceased, or A.B. who was the surviving child of," &LC., when they are not given in a subsequent part of the abstract ; but these statements should be put in brackets, to show they are not part? of the deed abstracted.^ Where a name occurs for the first time in an abstract, the description and place of residence should be given, and the person may afterwards be simply referred to as the " said A. B." Recitals. — Wherever the recitals are material, they should be given at length. Thus, where they mention facts, as deaths, failures of issue, births, marriages, descents, majorities, survivorships, probates of wills, and the courts in which they are proved ; intes- tacies, administrations, &c. ; or where they serve to strengthen the title, as when a deed is recited, creating a power which is exercised by a deed afterwards abstracted, the recitals should he given at length. So, also, where deeds not in the power of the vendor, and which cany the title back to a more remote period, are recited, the recitals should be given at length. And recitals of agreements for 1 1 Prest. Abs. 65. s° 1170 PROCEEDINGS IN THE MASTER'S OFFICE. purchases, marriages, &c., which are affceiwards followed by purchase deeds, settlements, &c., should be fully abstracted, if the agreements themselves are not abstracted.^ Where recitals merely refer to prior deeds which have been abstracted, it should be simply mentioned that these deeds are recited ; and, for more ready reference, the page of the abstract should be mentioned where the deeds are abstracted, as, " reciting the before abstracted indentures of lease and release, dated, fee. {Ante, p.. .)." The earlier part of a title sometimes depends on the recitals in other deeds ; and when this is the case it will be better to take them out of the deeds in which they are inserted, and arrange them in their order at the commencement of the abstract, thus: "Jan. 1, 1870. It appears by a recital in an Indenture of Release of the. . . .day of afterrvards abstracted, that" &c.^ The recital of the contract for purchase, mortgage, &c., on which the abstracted deed is founded, should be shortly stated, as in some cases it may be important. Recitals also of payments having been made, or of the amount of interest due, should always be abstracted. Testatum. — This part of a deed frequently commences with mentioning the purpose for which the deed is executed, as "for docking and barring all estates tail" This should be shortly abstracted. Consideration. — If there be a simple payment of the considera- tion stated in the deed, or if the consideration be immaterial, the consideration clause should only be shortly stated ; but where a trust or power requires that the money should be paid in a special manner, then that part of the deed which expresses the application must be fully given, in order to show that all the requisites of the trust, or circumstances of the power, have been observed, and in such cases, the language of the deed .should be closely pursued.^ 1 1 Prext. Aba. 66. 2 1 Prest. Abs. 26. 3 1 )'rr,.t. Abs. 70. AS TO ABSTRACTING DEEDS. 1171 So, also, where the money is pa3'able out of a particular fund, as trust uuiuies, the payment of tlie consideration should be fully stated. Where the operation of the deed depends on the existence of the proper consideration, as a bargain and sale, or covenant to stand seised, it must be particularly mentioned ; and where there is a doubt whether an instrument can operate in a particular manner, all the considerations should be stated, in order that it may be seen whether it may not operate in some other manner. Nominal considerations should always be shortly stated. The clause of the receipt of the consideration should be shortly abstracted, unless it contain some special matter, or mentions any particular fund out of which the money was to be paid ; so where it is necessary to show the due application of the money, the clause should be fully stated. In ancient deeds, the consideration is necessarily presumed to have been duly paid ; but in modern deeds, that is to say, deeds executed within the last twenty years, coui-ts of equity require the purchaser to look to the receipt usually endorsed on the deed, as evidence of the payment of the consideration and not to the receipt contained in the body of the deed ; and the want of the receipt by endorsement, or in a separate instrument, is, it is said, implied notice that the purchase money has not been paid, and raises a question of equitable lien in favor of the seller for his purchase- money, or so much thereof as does not appear to have been paid.^ But in one case,^ the receipt indorsed on the deed was treated in a court of common law as immaterial, where the statement in the body of the deed was ambiguous. Mr. Justice Holroyd observed, that not being under seal, it could not amount to an estoppel, but could only be evidence for the jury, capable of being rebutted by the other circumstances of the case. And this opinion has been also adopted in a subsequent case.^ 1 1 Prest. Abs. 72. 2 Lamponv. Corke, 5 B. & A. Oil ; 1 Dow. & Ry. 211. S nottreV V. Summers, 2 Y. & Jer. 407 ; but see MoManus v. Little, 3 Cham. Rep. 263 1172 PROCEEDINGS IN THE MASTER'S OFFICE. But when a deed contains a statement of the payment of the consideration money, it will estop the party at law from proving that the consideration money was never paid.^ 'Granting Part. — The grantor's or grantee's names, and the words of grant should be fully abstracted ; and if the grant is made at the request, with the consent, or by the direction of any person or persons, the clause should be fully given. Where a power is exercised, the words of reference to the power should be stated, together with the circumstances of the mode of execution and attestation ; and by the memorandum of attestation it should be shown that these requisites were actually and duly observed.^ If executed prior to the passing of the 29 Vic, ch. 28 (18th September, 1865), evidence is necessary that the author of the power was living at the time the deed was executed. The evidence may be dispensed with in two cases : (1.) If the power of attorney is thirty years old, and possession of the property has gone according to the deed for that period, the presumption may be made, without further evidence, that the appointor was living when the deed was executed.^ (2.) If the power of attorney was executed after the 18th September, 1865, its terms should be considered with reference to the 23rd section of the Property and Trusts act,* which enacts that in case a power of attorney "pro- vides that the same may be exercised in the name and on the behalf of the heirs or devisees, executors or administrators of the person executing the same, or provides by any form of words that the same shall not be revoked by the death of the person executing the same, such provision shall be valid and effectual to all intents and purposes, both at law and in equity, according to the tenor and effect thereof" The power may also be well exercised notwithstanding the ap- pointor's death, if the party had no notice of the death when the deed was executed and the transaction completed ;^ but a purchaser 1 Baker v. Dewey, 1 B. & C. 704. 2 1 Prest. Abs. 74. 3 Cov. Con. Ev. 37. 4 29 Vic. ch. 28. 6 29 Vic. ch. 28, sec. 24. AS TO ABSTKACTING DEEDS. 1173 is not bound to accept a title depending upon a former owner's appearing to have had no notice of what would otherwise invalidate the title.i The granting words should always be fully abstracted. The words of limitation annexed to the grant, as to the grantee, his heirs and assigns, or his encecwtors or administrators, should also be fully given. In short, as this clause is one of the most important in the deed, it should in general be given verbatim. In a lease and release, the reference to the lease for a year should be given shortly ; and if the lease is lost, at length, as it may then be evidence of the lease.' Where there are several and distinct clauses of grant, they should be given in separate lines, as they will thus more readily attract the notice of the counsel advising on the abstract. Parcels. — Where the parcels are short, they are sometimes given at length at the head of the abstract, and merely referred to in the subsequent instruments ; but the more general plan is to give the parcels at length in abstracting the first deed, as they are there described; and in the subsequent deeds to notice any variation which has taken place in the names or other material parts of the description, or, when there is no variation, to give a simple refer- ence to them.3 Where the parcels are long, and relate to extensive property, it is usual and ajivantageous to arrange the closes and farms, occupiers and tenants, parishes, &c., in alphabetical order. Where there is any change in the description of the parcels, it should be mentioned ; and when there is an ancient and modern description, both of them should be abstracted. When the parcels are described by reference to some other deed, the description should be given verbatim. 1 Francis v. iSf^. Qennain^ 6 Grant, 636. 2 See 1 Prest. Abs. 80. 3 1 Prest. Abs. 81-83. 1174 PROCEEDINGS IN THE MASTER'S OFFICE. The sweeping clause should always be fully abstracted, as it may serve to help out an insufficient description of the parcels. The first words of the general ivords should also be given for the same reason ; and where the description. of the parcels is in general terms, they should be fully given, as they may help out the general description. Whenever it is doubtful whether particular lands passed by a deed, from its terms being general, or from the description having become obsolete, the relevancy of the former deed ought to be shewn by means of contemporaneous documents, as leases, assessments to the land-tax, poor-rates, &c., maps, steward's accounts, and the like, as by such means the identity of the parcels may often be proved. ^ An affidavit of their identity should also in such cases be insisted upon. Exception.— It theie is any exception made in the grant, it should be. abstracted. The clauses of, And the reversion, &c,. All the estate, &c., And all deeds, &c., should be shortly noticed, unless they contain any special matter, for if so, they should be given fully. Habenduvi. — The habendum, or habendums, should be fuUy abstracted, with the name of the grantee or grantees, and the words of limitation of the estate ; and the presumed effect of the deed should never be attempted to be given. Reddendum. — This clause should be stated briefly, except when the rent is reserved in some particular manner, and a 'question may be raised on the validity of the reservation, or when the rent is the subject of the title to be considered, and the deed is abstracted for the purpose of showing the creation of the rent. But in general, it is sufficient to show the quantum of rent and the times of payment, and that it is clear of land-tax and all other deductions.- 1 1 Prest. Ab.s. 90. 2 1 Pred. Abs. 101. . AS TO ABSTRACTING DEEDS. 1175 The declaration uf Uses, and the person in tvhose favour it is 'Tiuule.^This part of the deed must be carefully abstracted, and the exact words should be given; and this is the more necessary when there is any special circumstance connected with the declaration. In abstracting words of limitation, marking the duration of the estate, it is very common in practice to give their effect, instead of stating the terms of the.deed, as " to A. for life, remainder to B. in tail" &c. And where the effect of the deed is clear and indisputa- ble, this is not objectionable ; but wherever this may admit of a doubt, the precise words should be given.^ Where the title depends upon the exercise of a power contained in a deed or will, it will not in general be necessary or proper to abstract the uses which were limited in default of appointment ; but where the validity of the appointment has been questioned, or where there has been a confirmation by the persons who would have been entitled, if the power had not been exercised, then the ulterior uses, as far as they are relevant to the title, should be abstracted.^ In abstracting the usual limitation to trustees, to preserve contin gent remainders, it should always be shewn in the abstract that the lands are merely limited to them and their heirs during the life of the prior tenant for life ; as, if their estate is not qualified in this manner, a doubt arises whether the trustee.^ do , not take the legal estate, and whether all the subsequent limitations are not merely equitable. It has been said that this must depend upon the inten- tion, both in deeds and wills.^ And it would seem that the estate which the trustees would take under such circumstances, would be governed by the intention of the testator, where the limitations are contained in a will. This proposition seems sufficiently borne out by the case cited by Mr. Sanders,^ although it is opposed by Lord Thurlow's opinion in Boteler v. Allington.^ But where limitations of this nature occur in a deed, it is submitted that the question of intention cannot be raised, but that the trustees must in all cases take an absolute fee in the legal estate. Thus, in Venables v. Mor- 1 1 Prest Abs. 116. 2 See 1 Prest. Abs. 119. 3 1 Sand. Us. & Tr. 260. 4 Doe d. Compere \. Hicks, 7 T. E. 433. 5 1 B. C. C. 72. 1176 PROCEEDINGS IN THE MASTER'S OFFICE. 7*is/ lands were settled by deed and fine to the use of J. M. for. life, with remainder to trustees and their heirs during the life of J. M. to preserve the contingent remainders, with remainder to H. M. for life, with remainder to trustees and their Jtcirs to preserve contin- gent remainders, with remainder to the first and other sons of J. M. and H. M. successively in tail, with remainder to the appointees by deed or will of H. M., and in default of appointment, to her right heirs ; and it was held, that subject to H. M.'s life estate the trustees took the absolute legal fee simple. So also in a later case,^ lands were limited in a settlement to the use of A. for life, and aftei' his decease, to the use of B. and his heirs, during the life of A., to sup- port contingent remainders ; remainder to the use of C. for life ; remainder to B. and his heirs, during the life of C, to support con- tingent remainders ; remainder to the first and other sons of C. in tail male ; remainder to the use of D. for* life ; and if she should marry, and her husband should survive her, to her husband for his life ; and after the determination of these estates, to the said B. and his heirs, to support contingent remainders ; remainder to the first and other sons of D. in tail ; remainder to the use of E. for life ; remainder to B. for life, and his heirs, to support contingent remain- ders ; remainder over ; and it was held that E. and the subsequent remainder-men took mere equitable estates, and that the legal fee remained in B. Of course, where there are words in the deed which modify the limitations therein contained, they should be fully abstracted. Where there is a long series of limitations, many of which have expired, if the deed containing them is an ancient deed, that is to say, more than forty years old, it seems unnecessary to abstract those limitations which can no longer take effect. They may, there- fore, be simply referred to ; but in all modern deeds, all the limita- tions, however numerous, should be fully given, in order that it may be seen that they have in fact determined. Declaration of Trusts. — This part of the deed must in general be fully given ; and when the trust is material to the title, it should always be shown that that which was directed to be done has been 1 7 T. K. 342, 438. 2 Colmore v. Tyndall, 2 Y. & Jor. 605. AS TO ABSTEACTING DEEDS. 1177 duly performed, or has failed of effect ; and if it be incumbent on the purchaser to see that the money arising under the trusts has been duly applied, then the trusts which direct the application should be stated.^ In abstracting the trusts, there should be shewn the act to be done, as to sell, &c., to exchange, &c. ; by whom it is to be done ; the term, if any, be pointed out, at or before which the trust is or is not to be pei-formed ; under what circumstances, when any cir- cumstances are imposed as material; with whose consent or at whose request, if any such consent or request be made requisite ; the mode by which any act is to be done, if any mode be pointed out, as by deed, auction, &;c., the manner in which any act is to be done ; as by deed, will, &c., if any mode be prescribed ; the person or persons in whose favor the act is to be done ; and when the nature of the trust requires it, the purchaser should see that all these requisites have been observed, and the documents which prove the observance of these requisites should be abstracted.^ Conditions and Provisoes, as conditions for defeating the estate granted ; provisoes for redemption and reconveyance, and for the cesser of terms, should always be abstracted. In abstracting a proviso for redemption, it should be shown by whom the money is to be paid, and to whom ; the time of payment, and the rate of interest, should also be mentioned. In abstracting provisoes for cesser, the part of the proviso setting out on what circumstances the term was to cease, should be fully given. Power n. — Powers which have been exercised, or which are to be exercised, in order to complete the title, should be abstracted verbatim. They should show the person or persons by whom the power is to be exercised, the mode of exercising the power, as by deed, will &c., and the circumstances which are to attend the execution, as the attestation, &c. ; the time at which the power is to be exercised, if any time be prescribed; the consent or request which are essential to a valid execution of the power, and the mode 1 1 Prest. Abs. 134. 1 1 Prest. Abs. 134. 1178 PROCEEDINUS IN THE MASTER'S OFB'ICE. in which such consent or request is to be expressed ; the act author- ized by the power, as to sell, exchange, &c., together with the cir- cumstances connected with the mode of executing the power ; the person or persons in whose favor the power is to be exercised, as children, or a particular child, and the estate which may be appointed to them; and whether the power is to be executed revocably or irrevocably.^ Powers which are barred, released, extinguished, or become incapable of taking effect, or which are immaterial to the title, may merely be noticed in the abstract.^ When there is an indemnity to purchasers paying the money, and the power has been exercised, the clause which enables the trustees to give receipts for the purchase-money should be abstracted, and the clauses which contain directions for the application of the money, should be omitted. If the deed contain a power to appoint new trustees, and the title is, or is to be, derived through or under the new trustees, and the acts done by these trustees, the power should be fully abstracted ; but where this is not the case, it is sufficient that it be shortly refer- red to.* Coven'ints. — The covenants usually inserted in deeds need not be fully abstracted, they should merely be noticed. Thus the usual covenants for title, or ordinary covenants to produce deeds, need only be mentioned ; but if the covenants are qualified, it should be mentioned. It will be proper, however, in examining the deeds, to pay particular attention to the exceptions, if any, in the covenants against incumbrances, and for quiet enjoyment; if there. are any such exceptions, they should be abstracted in the words of the covenant. Outstanding terms also, which are sometimes treated as incumbrances, and here noticed, should also be mentioned in the abstract. If there is no other information concerning a term, the abstract should adopt the words of the exception ; but if the term, 1 1 Frest. Abs. 151. 2 1 Prest. Abs. 1.51. 3 1 Prest. Abs. 152. AS TO ABSTRACTING DEEDS, 1179 and all circumstances belonging to it, have been previously noticed, the reference to it may be short, except when the evidence of the title to the term appears different in the exception, from the state of the evidence in the foraier part of the abstract ; in which case, the reference to the term should be fully abstracted.^ So, when a covenant for the production of title deeds discloses any evidence of the title, not contained in a former part of the abstract, it becomes material, and should be noticed ; and where there is a schedule of deeds, it should be stated, as a purchaser wiU have notice of any encumbrances effected by them. In abstracting leases, all the burdensome covenants should be fuUy given ; and wherever any special or unusual covenant occurs in a deed, it should be fully abstracted. Execution. — It should always be mentioned in the abstract, by whom the deed has been executed ; and if a particular mode of execution was necessary, as being an execution of a power or other- wise, it should be shown particularly how the deed was executed, in order that it may be seen whether it was properly executed. And wherever the precise date of the execution is important, it should be carefully mentioned in the abstract. The execution and attestation of a deed poll is usually mentioned at the beginning of the abstract of it, as " By deed poU under the hand and seal of A. B. attested by two witnesses," and not at the end, as in an indenture. A point of some practical importance may here be noticed. It is clear that signing was not essential to the validity of a deed at common law, sealing and delivering being alone sufficient.^ But since the Statute of Frauds,^ it has been a matter of some discussion whether the signing is necessary to a deed. On the one hand, Mr. Justice Blackstone considered that, since the Statute of Frauds, signature is as necessary to the perfection of all grants of laafls and other deeds taking effect under its provisions, as 1 1 Prest. Abs. 163. 2 See Shep. Touch. 60; Perk 63, ed. 1642. 3 29 Car. H. oh, 3. 1180 PROCEEDINGS IN THE MASTER'S OFFICE, sealmg.i On the other hand, Mr. Preston says, " that the Statute of Frauds is applicable only to mere agreements, not attended with the solemnities of a deed."^~ So Sir E. Sugden says, without any quali- fication, " signing is not essential to the validity of a deed, although sealing is."^ And it is to be remarked, that in the quotation by the same writer, of the first section of the Statute of Frauds, in the Treatise of the Law of Vendors,* the important words, "and signed" by the parties creating the same, are omitted, although they are afterwards alluded to in a subsequent page. With these conflicting opinions, it will be proper shortly to consider the enact- ments of the Statute of Frauds on the point. The first section enacts, " that all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments crea- ted by livery of seisin only, or by parol, and not put in writing andj signed by the parties creating the same, or their agents, thereunto lawfully authorized in writing, shall have the force and effect of leases or estates at will only, and shall not, either at law or equity, be taken to be of any greater force or effect, any consideration for making any such parol leases or estates, or former usages to the con- trary notwithstanding." The second section rriakes an exception in favour of leases not exceeding three years, whereupon the reserved rent shall amount to two-thirds of the full improved value. By section third, it is enacted; that no leases, estates, or interests, either of freehold or terms of years, or any uncertain interest, not being copyhold or customary interest, in, to, or out of lands or hereditaments, shall be assigned, granted, or surrendered, unless by deed or note in writing, signed by parties or their agents thereto authorized by writing, or by act and operation of law. The fourth section enacts, that no action shall be brought whereby to charge any person upon any agreement made upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action 1 2 Comm. 305-306, referring to 3 Leav. 1-2, and Stra. 764, neither of which references support his proposition. 2 3 Prest. Aba. 61 ; and see also 1 Prcst. Abs. 154. 3 Powers, 242, 4th ed. 4 1 Vend. & P. 132. AS TO ABSTRACTING DEEDS. 1181 shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. And section seventeen enacts, that no contract for the sale of goods for the price of ten pounds shall be good, unless a part of the goods is delivered, or something is given in earnest, or that some note or memorandum in writing of such bargain be made and signed by the parties or their agents. By these sections it will be seen, " that all leases, estates, interests of freehold, or terms of years, or any uncertain interests" in lands, and that " all assignments, grants, and surrenders " of such leases estates, or interests must be in writing, and are to be signed ; and that all contracts for lands, or goods of ten pounds value, must also be signed, but that no other deeds than these are directed to be signed by this statute. The construction put upon the words of the first and fourth sections, by one of the eminent writers last referred to, is, that the terms of the first section are co-extensive with those of the fourth, and extend to every possible interest in lands which is not within the exception of the second section.^ And this con- struction although not perhaps, according to the words of the act,^ is consistent with its intent and objects. All that the Statute of Frauds therefore, has enacted, according to its most liberal construction, is, that all deeds, conveying, assigning, granting, and surrending real property or real chattels, and agreements for their sale, and contracts for goods of a certain value, shall be in >vriting, and signed either by the parties conveying, &c., or their agents to be authorized in writing ; but all other deeds are unaffected by this act. A later case on the subject is Taunton v. Pepler^ where it was determined that signature was not essential to a release by deed given to an administrator, and of course relating to personal property ; which is in confirmation, as far as it extends, of the above remarks. 1 Sltt/. Vend. 67, 7th ed. Z See Crosty v. Wadsworih, 6 East, 610. 3 6Madd. 166. 1182 PROCEEDINGS IN THE MASTER'S OFFICE. Another construction of the statute is, that deeds are left by it as at common law ; and signature is still unnecessary to them ; but that the signature mentioned in the act is merely requisite to the Tiotes in writing referred to therein. This opinion, however, although adopted to some extent,^ cannot, it is submitted, be correct. Considering the doubt affecting the point, it should always be mentioned in the abstract what parties have signed the deeds. Receipt. — Where money is to be paid under a deed, in all modem transactions a receipt is indorsed on the deed for it, and this receipt should therefore be mentioned in the abstract. It is the proper evidence that the money has been paid.'^ But this does not apply to nominal considerations, for a receipt for them is never indorsed^ and is unnecessary,^ as they are, in fact, rarely paid. A deed may be executed before payment of the purchase money, and the endorsed receipt is not supposed to be signed until the money is paid. In case, therefore, of deeds executed before the 18th September, 1865, if the consideration has not been paid, the absence of a recital of payment, or of an indorsed receipt is deemed constructive notice of the nonpayment to future pui'chasers ; * and the grantor may have a lien on the property for the amount due to him. But in regard to deeds executed since 18th September, 1&65, and registered, unpaid purchase money is no lien.'' So, where part of the money secured by a mortgage, appears, by a receipt endorsed on the mortgage, to have been paid off, this part should be noticed in the abstract.* When the deed requires any further ceremony to render it perfect, as enrolment, livery of seisin, a memorial &c., the performance thereof should be mentioned in the abstract. So also if the deed, or any part thereof, has been erased, inter- lined, or cancelled, it should be noticed in the abstract.' 1 Dixm on Tit. Deeds, 666. 2 Rawntree v. Jacob, 2 Taunt. 141 ; but see Lamport v. Cork, 5 B. & A 600 ; 1 Dow. & Ry. 211; S. C. and ante, p. 1171. 3 10 Co. 67 b. 4 Lee on Abs. 418, 471 ; Baldwin v, Duingan, 6 Grant, 595. 5 29 Vic. ch. 24, s. 65 ; Ont. Stat. 31 Vic. c. 20, s. 68. 6 1 PresL Abs. 156. 7 1 Prest, Abs. 157. AS TO ABSTRACTING WILLS. 1183 Where it is the case, it should be mentioned that the deed has been registered, and in what book and page the registry is to be found. In short, any other fact which accompanies the execution of the deed, and which in any way affects its validity, should be stated in the abstract. 2. As to Abstracting Wills. In abstracting wills, the date should be taken from the will, and not from the letters of probate. Ajiy charge imposed for the payment of debts, legacies, annuities, &c., should be shown ; and if the debts are scheduled or specified, they should be mentioued in the abstract ; but when there is a. trust for the payment of debts and legacies, and the debts are not specified or scheduled, and it does not appear that all the debts have been paid, there does not exist any reason for stating the legacies specially, since the pur- chaser is not under any obligation to see that they are paid.^ The clause exempting a purchaser or mortgagee from seeing to the application of the purchase-money, if it is contained in the will, should always be mentioned in the abstract. In other respects, the rules laid down for abstracting deeds apply equally to wills, but, in general, wills should be more fully given ; and where they are informally drawn, they should properly be given verbatim. At the foot of the will should be shown the time of the death of the testator, the court in which the will was proved, and by whom, and the time of the probate, and if registered, the fact of registra- tion should be added.^ If there be a confirmation of the will by the heir at law, or any conveyance taken from him, or any proceeding had against him, to establish the will, or if there be any interest left undisposed of, which descends to the heir at law, it is material to state who was the heir at law of the testator at his death ; and when the circum- 1 Smith V Guyon, 1 B. C. C. ISO ; Humble v. Bill, 1 Eq. Ca. Ah. 353, C. pi. 4 ; Barker v, Duke o/ Vevotishire, 3 Meriv. 310. 2 1 Prest. Aba. 182-185. 1184 PBOCEEDINGS IN THE MASTER'S OFFICE. stances of the case require it, there should be a deduction of the title from heir to heir, or from heir to devisee, and in some cases from heir to executor ; as, for example, where the land is converted into money, quoad the heir, or where the heir takes a lapsed legacy, or part of a residue as lapsed or undisposed of, or the residue of trust monies by resulting trust.^ Where any devisee under the will dies in the lifetime of the testator, the fact should be stated ; and where a will is partially or wholly revoked, the deed, will, or circumstances which are the causes of revocation, should be mentioned, and it is most correct to state deeds, wills, &c., in the order of their dates.^ It is also usual to state that the testator died without altering or revoking, or without altering or revoking his will as far as it related to the lands in question. So also where a will is proved in the Court of Chancery per testes, the fact should either be noticed generally, or the decree of the court should be abstracted, when it is material to the title on some other account.^ In wills of real estate, executed before the stat. 1 Vict. q. 26, the execution in the presence of, and attestation by, three witnesses, should always be mentioned ; and in wills of personal estate, if they have been executed and attested, tliese facts should also be stated. In wills executed after the statute, it should be stated that its provisions have been complied with. Codicils which revoke, alter, or add to a will, should be given according to the order of their dates, and if they vary the state of the title, they should be stated as separate instruments. When a codicil republishes a will, the date of the republication should be added ; and it is more proper to state it as a separate and independent fact, according to the order of its date, than by a memorandum at the foot of the will.* 1 1 Prest. Abs. 183. 2 1 Prest. Abs. 184. 3 1 Prett. Abs. 185. 4 1 Prest. Abs. 184. AS TO ABSTRACTING MISCELLANEOUS DOCUMENTS. 1185 When a person claims, as the executor of an executor, or the executor of a surviving executor, it should be shown that the will was proved by such first executor or surviving executor, and the representation should be carried on by shewing the probate of the will of the only executor or the surviving executor in each grada- tion of the succession. And when the executor or surviving executor dies intestate, there should be an abstract of letters of administration, de bonis non, of the first testator ; and to make out a representation by an executorship to a surviving executor, the fact of his survivorship should be shown by certificates of burial of his co-executors before his death.^ But, unless the title has been varied by intermediate acts, it does not seem necessary to show the letters of administration obtained by each successive administrator.^ Letters of probate are good evidence of the facts they state ; but if the facts are mis-stated, or can be controverted, a purchaser might make such mistake a ground of objection the title.^ Letters of probate, or administration, do not form any essential part of a title to real estate, although it be derived under an authority to executors to sell.* 3. As to Abstracting Miscellaneous Documents. » Letters of Administration. — Wherever letters of administration are material to the title, they should be abstracted, whether general or special. The abstract should show the date of the letters of administra- tion, by whom they are obtained, out of what court, viz., a court of competent jurisdiction, and the subject of the administration.^ • Private Acts of Parliament. — In abstracting private acts of parliament, the following parts shoiild be given : 1. The time of the passing of the act, that is to say, the date of the royal assent. 2. The title of the act. 3. The recitals in the act, if they are in any way important. 4. The enacting clauses, which should be fally 1 1 Prest. Aba. 185 ; Com. Dig. Admon. G. Off. Ex. 146 ; Trnmh. 464. 2 1 Prest. Abs. 186. ' 3 1 Prest. Aba. 187. 4 Doe V. Calvert. 2 Camp. 389 ; Comb. 47 ; but aee St. Leger v. Adame, 1 Ld. Raym. 731. 6 See 1 Prest. Abs. 188. SI 186 PROCEEDINGS IN THE MASTER'S OFFICE. given, and the exception, or saving clause, if any. The more correct practice is to deliver a printed copy of the act with the abstract. Judgments. — When judgments and fi. fa's, against lands issued thereon affect the title, or are assigned and kept on foot to protect the title, they should be noticed in the abstract ; and if they are assigned, the assignment and declaration of trusts should be added.^ When they are known, or when there is not any outstanding estate by which the purchaser can be protected from them, by reason of his being a purchaser for a valuable consideration, and without notice, it is the duty of the vendor's solicitor to furnish the purchaser with an abstract of the judgments.^ Decrees. — Where decrees or decretal orders are material to the title, they should be abstracted, but only such parts should be given as affect the title. If the decree directs a reference to the master, his report should also be abstracted, and its confirmation by the court should be stated. Wherever money is paid into court, and it is incumbent to see that it has been so paid in, and there is no subsequent order which recognizes the payment, the fact of payment should be proved by an office copy of the accountant-general's certificate.* It may sometimes be proper to state the substance of the biU and and answer, and other proceedings in a cause, in the abstract, as well as the decree. Whenever a decree is founded on a master's report, the report should be abstracted, and the order for confirming it. If any proceedings in insolvency affect the title, whether on regis- tration or not, they should, if known to the. vendor, be shortly abstracted. 1 1 Prest Abs 190. 2 See Richards v. Barton. 1 Esp. N. P. 0. 269 3 1 Prest. Abs. 190. AS TO ABSTKACTING MISCELLANEOUS DOCUMENTS. 1187 Contracts for Sale. — The contract for the sale or mortgage should either be fully abstracted, or, as is the more usual custom, a copy of it should accompany the abstract ; and it wiU, of course, be the duty of the counsel before whom it is laid to see that the vendor shall make such a title to the lands as he has contracted to do. II. ABSTEACTS OF TITLE OF PROPERTY NOT FREEHOLD. 1. — Leaseholds. — The abstract should commence with the deed creating the term, and the mesne assignmeuts should then be given, together with the wills and other documents connected with the title. If the original lease is made by virtue of a power contained in a prior deed, will, or act of parliament, such deed, &c., should be abstracted, so far as to shew that the power was well created and executed.! The registration should also be mentioned in the abstract. 2. Personalty. — In abstracts of title to personalty, the deeds, wills and other documents, should be abstracted according to the rules before laid down with respect to freeholds, so far as the different natures of the property will admit. Of the professional duties connected with Abstracts of Title. Having considered the form of the abstract and its usual contents, it will now be proper to mention the professional duties connected with it ; and this chapter may be properly divided into — I. The duty of the vendor's solicitor. II. The duty of the purchaser's solicitor : and III. The duty of counsel. And the rules which will be laid down will equally apply on a mortgage, or other charge of property, as on a sale. I. The duty of the Vendor's Solicitor. The vendor's solicitor must, at the vendor's expense, prepare the abstract of the title of the premises to be sold or charged, and do all necessary acts for completing the title .^ 1 See Cooper v. DenTw, 1 Ves. J. 565. 2 Clowes V. Higginson, 1 V. & B. 629. 1188 PROCEEDINGS IN THE MASTER'S OFFICE. He will often be able to produce a title much more remote than, the requisite period, but it will be generally imprudent to do so, as it must increase the expense, and may give rise to useless and embarrassing enquiries. The vendor's solicitor should suppress no fact or deed material to the title. Whenever he begins with the root of the title, he ought to abstract every subsequent deed, and if he were to suppress any by which the purchaser should be damnified, he would be answerable for the loss. But there is no pretence for a purchaser requiring, or a vendor's solicitor furnishing, an abstract of all the deeds in his possession however ancient.^ Where there is a mere presumption of the satisfaction of the charge or incumbrance, the deeds should always be abstracted, be- cause the presumption may be rebutted by contrary evidence,, and then it will not avail.^ If a purchaser discovers any fact which has been concealed from him, and which affects the security of his title, and there has been a decided misrepresentation on the part of the vendor, although he has paid his money, and the premises have been conveyed to him, he will be entitled to have the conveyance set aside, and his pur- chase-money repaid with costs, although no interruption to his en- joyment has either been made or threatened.^ The Court will not exercise its summary jurisdiction to compel a vendor's solicitor to perform an undertaking, given by him at the sale, to do certain acts for clearing the title to the estate.* If the property has remained a considerable time in one family, or is of great extent and importance, it will always be prudent, be- fore a sale or mortgage, to submit an abstract of the title to counsel, on behalf of the vendor. By this means, the real difficulties and defects of the title may be known and remedied before it is brought into the market. Or if the defects cannot be remedied, they may be provided for by the articles of sale, which may restrict inquiries 1 2 Sua. Vend. & P 68 ; Richards v. Barton, 1 Esp. N. P. C. 268 ; 1 Prest. Abs. 64. 2 SeeBarnell v. Harris, 1 Taunt. 430. 3 Edwards v. Me'Leary, Coop. 308 ; 2 Swanst. 277; S. C. on appeal, 4 Pearly. Bushell, 2 Sim. 38. ABSTRACTS OF TITLE OF PROPERTY NOT FREEHOLD. 1189 beyond a certain date, or specify that the title is open to certain objections, and must be taken subject to them. If the lands are sold by public auction, it seems doubtful whether articles of sale, providing that the purchaser shall take a defective title, would be held to be valid. Thus, in a late case from Scot- land, vrhere the vendor stipulated at a public auction, by the articles of sale, to deliver certain specified deeds, which were de- scribed as " all the deeds in his custody," such a provision was held to be void ; Lord Lyndhurst, C, observing, that he never beard that because a vendor provides by the conditions of sale, that he will give to the purchaser only certain specified deeds, that the pur- chaser must take such title as appears upon the deeds.^ But it is clear that the vendor may stipulate by private agreement that the purchaser shall accept the title such as it is f and that a purchaser may waive his right to a good title by concluding an agreement after he has full notice that he is not to expect a title beyond a limited period. That may be matter of notice and not of contract. ^ And even on a sale by public auction, stipulations of this nature will sometimes be allowed. Thus, where assignees put up to sale the bankrupt's interest in an estate, " as he lately held the same," an abstract of which might be seen at a particular office, and the auctioneer, on putting up the estate, explained to the bidders that it was a resale, on account of a defect of title, and that the assig- nees having rescinded the contract, again came before the public with such title as they had, and that the purchaser was not to expect a good title, but take it as it was, the Vice-Chancellor, (Sir John Leach) held that the vendee could not insist upon any other title than such as the bankrupt had, observing that a vendor, if he thought fit, might stipulate for the sale of an estate with such title only as he happens to have. * And it may perhaps be laid down, that where notice of the articles of sale can be clearly brought home to the vendee, he will be compelled to accept the title, although the sale is by public auction. But conditions like that in Freme v. Wright should be looked at with great jealousy, as they are often traps for the unwary.^ 1 Dick V. Donald, 1 Bli. N. S. 661. 2 Wilmot T. Wilkinson, 6 B. & C. 506 , 9 D. & R. 620. 3-3 Mer. 64 ; Baxter v. Conolly, 1 Jac. & Walk. 676. 4 Freme atid others v. Wright, 4 Madd. 364. 6 2 Sug. Vend. & P. 3 ; and see Southby v. Hutt, 2 Myl. & C. 207 ; Wright v. Wilson, 1 Moo. & Rob. 207 ; Robinson v. Xusgrove, 2 Moo. & Rob. 92. 1190 PROCEEDINGS IN THE MASTER'S OFFICE. If a vendor, before conveyance to himself, sells by auction, and engages to make a good title by a certain day, which, not having obtained a conveyance, he cannot do, he is liable not only for the expenses incurred by his vendee, but also to damages incurred by the contract not being carried into effect.^ The particular time at which the abstract should be delivered, is generally mentioned in the contract for sale, and the abstract should be punctually delivered at the appointed time ; for, if the abstract is not then delivered, the purchaser may at law avoid his contract -^ and it will also be avoided in equity, except in cases where the vendor has used all due diligence, but has been prevented by insuperable dif&culties from fulfilling his contract ; ^ or perhaps where the purchaser has neglected to take the proper steps in calling for the abstract.* But it is now settled that time may be made the essence of the contract as well in equity as at law. ^ And in one case. Lord Eldon expressed his disapprobation of the principle, which allows a vendor to deliver the abstract behind the appointed period.* If there be no time stipulated for the delivery of the abstract, it must be delivered as soon as it can be reasonably prepared. Upon the delivery of the abstract, the vendor's solicitor must be prepared to produce the deeds themselves to the purchaser's solic- itor, and if they are not in his possession, but can be obtained by virtue of a covenant or otherwise, they must be produced, and the expense of such production, including journeys if requisite, must be borne by the vendor.'' If the deeds themselves cannot be pro- duced, the vendor's solicitor must furnish attested copies of them, for the purpose of being examined with the abstract. Although a purchaser buys with full notice that a title cannot be made without the consent of a third person, yet it lies on the seller, and not on the purchaser to obtain the consent. It cannot be in- 1 Hopkins v. Grazeirook, 6 B. & 0. 31. See Walker v. Moore, 10 B. & C. 416. 2 Berry v. Young, 2 Esp. N. P. 0. 640, n. ; Wild v. Fort, 4 Taunt. 334. 3 Lloyd V. Collett, 4 Ves. 689, n. ; Paine v. Meller, 6 Ves. 349 ; Radeliffe v. Warrington, 12 Ves. 326. 4 See Chiest v. Som/ray, 6 Ves. 823. 5 Hudson V. Bartram, 3 Madd. 440 ; and see Boehm v. Wood, 1 Jac. & Walk. 419 ; Withy v. Cottle, Turn. 78. 6 Leckinere v. Brazier, 2 Jac. & Walk, 289. 7 Hughes v. Wynne 8 Sim. 85. THE DUTY OF THE PURCHASER'S SOLICITOR. 1191 ferred that the seller only agreed to part with his interest in the estate, so far only as he was ahle to do so.^ II. The duty of the purchaser's solicitor. Where a time is appointed for the delivery of the abstract, the purchaser's solicitor should take care to demand its delivery on or about that time, as he may otherwise be unable to enforce a specific performance of the contract.^ If he wishes to rescind the contract, on the non-delivery of the abstract at the stipulated time, he should give notice to that effect to the vendor, and demand repayment of his deposit money ; for if he allow the time to pass by without any step of this kind, he will be held to have waived his right to take advan- tage of the negligence on the other side.^ And if the abstract is delivered after the stipulated time, the purchaser's solicitor should only receive it, without prejudice to his client's right to take ad- vantage of the neglect.* The purchaser's solicitor must compare the abstract most care- fully with the original instruments there abstracted, and must see that the abstract contains a full and correct statement of them. And if he finds them incorrectly abstracted, he should, by a rider, or by a correction of the abstract, supply a full and correct state- ment of them. The deeds are generally examined at the office of the vendor's solicitor ; but wherever the deeds are, the purchaser's solicitor is bound to go to examine them ; and, although it is a distant or inconvenient place, the vendor must pay the expense of the journey.^ The purchaser's solicitor can only be exempted from his duty of examining the deeds, by express contract with his client ; but he is not bound to draw conclusions from the deeds ; nay, if he does so, he does it at his peril, for he is bound to take the opinion of coun- sel on the deeds, and he is responsible to his client for giving a full and complete statement of the deeds or other documents on which he asks counsel's opinion.^ 1 Lloyd y. Crisps, 5 Taunt. 249 ; Mason v. Carder, 2 Marsh. 332 ; 7 Taunt. 9, S. C. 2 See Guest v. Homfray, 5 Ves. 818. 3 Jones v. Price, 3 Anat. 924 ; Roper v. Coombes, 6 B. & C. 534. 4 Smith y. Bernam, 2 Anst. 527 ; Seton v. Slade, 7 Ves. 266 ; and see Lloyd v. Collett, 4 B. C. C. 469 ; Sipwell y. Knight, 1 Yo. & Col. 401. 6 Sha/rp V. Page, 2 Sug. Vend. & P. 82; Hughes v. Wynne, SSim. 86. 6 Ireson y. Pearman, 3 B. & 0. 70o ; 6 Dow. & Ey. 687. 1192 PROCEEDINGS IN THE MASTER'S OFFICE. It is the solicitor's duty also to see the whole of every instru- ment, and not to be content with an extract; and this rule applies particularly to wills. And he will be responsible to his client for any negligence in this particular .^ But an action for the negligence of an attorney is barred by the Statute of Limitations, six years after default, and not after discovery.^ He should also see that the facts which support the title are properly and legally proved, and that they are supported by docu- ments, which will be the best evidence of their truth in a court of justice.^ After these points have been attended to, the abstract should be laid before counsel ; but it seems it is the duty of the solicitor to peruse it himself before sending it to counsel.* And if the purchaser will not incur the expense of counsel, the solicitor should take a written memorandum from his client that such is the fact, and that it is against the solicitor's advice. On receiving the abstract from the counsel to whom it has been submitted, it will be the duty of the solicitor for the purchaser to follow up all the enquiries, and to insist on all the requisitions made in the opinion on the title therein contained. This part of his duty must be most carefully attended to, as it is of the greatest import- ance. The abstract must then be re-submitted to counsel, in order that he may judge whether his requisitions have been correctly followed. It is also the duty of the purchaser's solicitor to search for fi. fa. lands, recognizances, crown debts, &c., and all other defects in the title, and to satisfy himself that there are none (besides those dis- closed to him) which affect the title ; and the usual searches can hardly ever be dispensed with advantageously.^ And if a purchaser is damnified by his solicitor neglecting to search for incumbrances, it is clear that he may recover at law against the solicitor for any loss occasioned by his negligence.® 1 Wilson V Tucker, 1 Dow. & Ey. N. P. 0. 30 j 3 Stark. 164, S. C. 2 Eowell V. Toung, 5 B. & C. 269. 3 See Newall v. Smith, 1 Jac. & Walk. 263. 4 Drax V. Scroupe 2 B. & Ad. 681 , 1 Dowl. P. C. 69. 6 See as to this, Fanhall v. Coles, 1 Vin. Abr. 54, pi. 6. 6 Brooks V. Day, 2 Dick. 672 ; rreami v. Pearman, 3 B. & C. 799 : 5 Dow. & Ry. 6is7 ; 2 Stm. Vend. & P. 417. MORTGAGES, VENDORS' LIENS. 1193 Mortgages, Vendors' Liens. If the purchaser is taking the land subject to any charges or liens ■which are not to be paid off out of the purchase money, enquiry should always be made of the persons appearing entitled thereto, as to their exact nature and amount ; care being taken to inform them of the pending contract for purchase ; for without such inti- mation the enquiry will be unavailing as against the person claiming the charge of lien.^ A mortgage, although on its face made to secure payment of a specific amount, may be proved by parol evidence to be for a running at;count, and intended as a continuing security. In McMaster v. Anderson,^ a mortgage having been given by Anderson to the plaintiff, for £125, payable at a certain time, the mortgagor afterwards sold the equity of redemption to Nigh, at the same time showing him a receipt in full for all indebtedness, signed by the plaintiff and dated subsequent to the mortgage. On a bill being filed for foreclosure after the mortgagor's death, Spragge, V. C. admitted parol evidence to show that the mortgage, although given for a specific sum, was in facf intended as a continuing security for the mortgagor's indebtedness from time to time, not exceeding £125, and said, " I think that Nigh can stand in no better position than Anderson. It was his duty to have inquired of the mortgagee." The lien "which a vendor had prior to the recent Eegistry Act, for unpaid purchase money, bound the land for twenty years, though only six years arrears of interest could be recovered. A purchaser without notice of the lien, who has got the legal es- tate, and registered his deed, can hold the land discharged from the lien ; but if he had, before he paid his purchase money and ob- tained his conveyance, notice of the lien, the estate will be charged in his hands. As a general rule, every suspicious circumstance which would put a cautious man upon his guard and suggest inquiry, will be deemed notice. If, therefore, there is anything suspicious about any of the deeds, as for example, if in the case of a deed executed before the 18th day of September, 1865, the endorsed receipt for 1 Con. Con. Ev 6 ; Moffat v. Bank of Upper Canada, 6 Grant, 374. 2 MS. 22nd May. 1865. 1194 PROCEEDINGS IN THE MASTER'S OFFICE. the purchase money is wanting, or is unsigned, proof of payment of the purchase money should always be called for ; the absence of such a receipt being constructive notice to a purchaser that the pm-chase money is unpaid.^ It is clear the lapse of even twenty years is not sufficient to raise the presumption of payment, because there may have been an acknowledgment of the debt ; and if an acknowledgment should sub- sequently appear, a future purchaser will be bound by it.^ After foyty years, however, if possesion has gone with the deed, payment may be presumed. In the ease of deeds executed since the 18th September, 1865, unpaid purchase money forms no lien on the land, the recent Re- gistry Act providing that^ "no equitable lien, charge, or interest affecting land shall be deemed valid in any Court in this Province, after this act shall come into operation as against a registered in- strument executed by the same party, his heirs or assigns." But the act does not affect any liens created before the 18th of Sep- tember, 1865. In McDonald v. McDonald,* it was contended that the act was retrospective, and that a lien existing before the act, was gone under the above section. In giving judgment, Mowat, V. C, said, "It is difficult to believe, and I do not believe, that the Legislatm-e meant to legislate away existing ' liens, charges and interests.' The language used is certainly large enough to comprise equitable in- terests existing before the passing of the act, as well as those arising subsequently ; but a like circumstance has been held in many cases to be by no means a decisive test of a meaning of a statute, words quite as broad as those in question have been construed as not re- trospective. * * * I have examined most of the cases ; and, reading the enactment in question in the light of these cases, and of the various clauses of the statute to which my attention was called, I am of opinion that the 66th section has not a retrospective operation." 1 Baldwin v. Duignan, 6 Grant, 595 ; Lee on Abs. 418, 471. 2 Ball V. Ld, Riversdale. Beat 550 ; StansHeld v. Hohson, 16 Beav. 236 ; 3D. M.. & G. 620 ■ Rodham V. Miyrley, 1 D. & J. 1 ; Pendleton v. Booth. 1 Gifl. 35 ; 1 D. P. cSt J. 81. 3 29 Vic. c. 24, 8. 66 ; Ont. Stat. 31 Vie. c. 20, s. 68. 4 14 Grant, 133. CROWN Debts. 1195 Crown Debts. Before the 15th of August, 1866, securities and engagements to the Crown, bound the real estate of the debtors and also of their sureties, from the time when the security to the Crown was given, or when the office or engagement in respect of which the debt was contracted was acquired or entered into,-^ provided the requirements of the statute as to registration was complied with. By the statute,'^ " no deed, bond, contract, or other instrument, under seal or of record, whereby any debt, or obligation or duty is incurred or created to Her Majesty, shall be valid or sufficient to charge or affect any lands or any interest in lands, of the person executing the same or affected thereby, as against any subsequent purchaser or mortgagee for valuable consideration of the same lands from such person, or against any subsequent registered judgment on the same lands against such person, unless a copy of such deed, bond, contract or other instrument, certified by the proper officer having the custody of the same had been registered in the office of the Clerk of the Court of Queen's Bench in Toronto, before the execution of the deed, conveyance or agreement of such subsequent purchaser or mortgagee, or the registry of such subsequent judg- ment." The law has now, however, been altered, and in the case of bonds or other agreements entered into since the 15th August, 1866, " No^ bond, covenant, or other security, hereafter to be made or en- tered into by any person to Her Majesty, her heirs or successors, or to any person on behalf of or in trust for Her Majesty, her heirs or successors, shall bind the real or personal property of such person so making or entering into such bond, covenant or other security, to any further, other or greater extent than if such bond, covenant or other security had been made dnd entered into between subject and subject of Her Majesty." " The* real or personal property of any debtor to Her Majesty, her heirs or successors, or to any person in trust for or on behalf 1 Cov. Con. Ev 234 ; Lee on Abs. 394. 2 Con. Stat. U. C. c. 6, s. ]. 3 29 & 30 Vic. c. 43, s. 1. 4 29 & 30 Vic. c. 43, a. 2. 1196 PROCEEDINGS IN THE MASTEE'S OFFICE. of Her Majesty, her heirs or successors, for any debt hereafter con- tracted, shall be bound only to the same extent, and in the same manner as the real or personal property of any debtor where a debt is due from a subject of Her Majesty." As the act apphes only to bonds or covenants executed since its passing, it is unsafe to deal with any person who before that be- came liable on a Crown bond, until he has procured and produced his quietus, discharging him from all liability to the Crown,^ or re- leasing the particular lands in question from the operation of the bond. The statute^ provides, that " The Governor in Cooncil may order that all or any lands bound by such deed, bond, contract or other instrument, shall be released from the charge created thereby, and upon the production of such order certified by the President or Clerk of the Executive Council the Clerk of the Court of Queen's Bench shall enter and register the same in the said book as a re- lease of the lands mentioned in the order, whereupon the lands shall be released accordingly." By an act of the Legislature of Ontario, passed during the session of 1873, it is provided that " From and after the first day of January next, any lands bound by the registration in the office of the clerk of the Court of Queen's Bench in Toronto, of any deed, bond, contract or other instrument whereby any debt, obligation or duty is incurred or created to Her Majesty, in respect of any matter within the jurisdiction of the Government of Ontario, shall be re- leased from the charge created by such registration, so far as the same is within the authority of the Government of Ontario." This, however, is not to affect obligations, or release any charge, which may, previous to the first of January, have been obtained against any such lands by virtue of any writ or other proceeding. The search for Crown bonds should be made at the office of the Clerk of the Court of Queen's Bench at Toronto ; but the Inspector under the Act for Quieting Titles^ has also an alphabetical list of all registered Crown bonds. X Cov. Con. Ev. 236. 2 Con. Stat. U. C.s.5, a. 3. S 29 Vic. c. 25. EXECUTIONS. 1197 Executions. Search must in every case be made in the office of the Sheriff of the County to ascertain whether there are in his hands any writs of execution against the lands of the vendor, and a certificate ob- tained that there are none. To cover the contingency of writs returned by the Sheriff for re- newal, the certificate should state not only that there is no execution in his hands at its date, but that there has been none for thirty days previous. The certificate should also state that there has been no sale of the land under execution during the preceding six months. This is a sufficiently long period to carry back the search, because the statute^ provides, that " all deeds of lands sold under process issued from any of the Courts of Law or Equity in Ontario, shall be re- gistered within six months after the sale of such lands, otherwise the parties respectively claiming under any of such sales, shall not be deemed to have preserved their priority as against a purchaser in good faith who may have registered his deed prior to the regis- tration of such deed from the Sheriff or other officer." Before the passing of this act, no time was limited within which a Sheriff's deed required to be registered ; and such a deed, though unregistered, could not be defeated by any subsequent conveyance made by the party whose lands had had been sold by the Sheriff."^ Now, however, purchasers are protected against the possibility of any unregistered deeds from Sheriffs being outstanding, as the same statute provides,^ that all deeds for lands sold " under process of law, before the passing of this act, shall be registered within one year after the passing of this act, otherwise the parties re- spectively claiming under any such sales shall not be deemed to have preserved their priority as against a purchaser in good faith who may have acquired priority of registration." 1 29 Vic. c. 24, s. 56 ; Ont. Stat. 31 Vic. c. 20, ». 68. 2 Buniham v. Daly, 11 Q. B. U. C. 211. 3 29 Vic. c. 24, s. 57 ; Ont. Stat. 31 Vic. c. 20, s. 69. 1198 PROCEEDINGS IN THE MASTER'S OFFICE. Taxes. A certificate from tlie treasurer of the county as to arrears of taxes, or tliat there are none, should always be procured. The certificate should show on its face, that the statement of taxes in arrear for the preceding year has been returned to the county treasurer by the township treasurer.^ If it does not show this, then a certificate must be procured from the township treasurer also, in which it should be stated that the collector's roll has been returned by that officer to the treasurer.^ If the roll has not been returned, the collector's receipt for the taxes of the past year will be sufficient : but the county treasurer's certificate is required in every case, to show that there are no previous arrears. A search must also be made to ascertain whether there has been any sale of the land for taxes during the preceding eighteen months. This period, over which the search must extend, is fixed, because the Eegistry Act^ provides that every deed made by a Sheriff or other of&cer, for arrears of taxes, must be registered within eighteen months after the sale, otherwise the parties re- spectively claiming under any such sale, shall not be deemed to have preserved their priority as against a purchaser in good faith who may have registered his deed prior to the registration of the deed from such Sheriff or other of&cer. The Eegistry Act of 1865 contained* an exactly similar provision; but until the passing of that act, there was no limit to the time within which such a deed required to be registered. Purchasers are now, however, protected against the risk of any unregistered deeds on sales for taxes, executed before the 18th Sep- tember, 1865, as the statute^ contains the following provision, "all" deeds for lands sold for taxes, or under process of law, before the passing of this act, shall be registered within one year after the passing of this act, otherwise the parties respectively claiming under any such sales shall not be deemed to have preserved their 1 29 & 30 Vie. 0. 53, s. 116. 2 29 & 30 Vic. c. 63, s. 104. 3 Ont. Stat. 81 Vic. c. 20, s. 58. 4 29 Vic. c. 24, s. 66. 6 29 Vic. c. 24, s. 67 ; Ont. Stat. 31 Vic. c. 20, s. 69. SPECIAL IMPROVEMENTS. 1199 priority as against a purchaser in good faith who may have acquired priority of registration." Special Improvements. Enquiry must also be made whether the property is liable to any special rate for local improvements, such a rate being made by statute, a charge upon the property benefited. By the Consolidated Statute^ of Upper Canada relating to Muni- cipal Institutions, the Council of every city could pass by-laws^ for assessing and levying upon the real property to be immediately benefited by the making, enlarging or prolonging of any sewer, or the opening, widening, prolonging or altering, macadamizing, grading, levelling, paving or planking of any street, lane or alley, public way or place, or of any side-walk therein, a special rate sufficient to include a sinking fund, for the repayment of deben- tures, which such councils were thereby authorized to issue in such cases respectively to provide funds for such improvements. To the validity of such a by-law it was not essential, that it should be in accordance with the restrictions and provisions con- tained in the 223rd section of the act, which regulated the forma- lities necessary in by-laws for contracting debts by borrowing money or otherwise, or for levying rates for payment of such debts on the rateable property of the municipality. To the validity of such a by-law it was, however, necessary, ^ that it should name a day within the financial year in which it was passed when it was to take effect ; the whole of the debt and the obligations to be issued therefor, were to be made payable in twenty years at furthest from the day on which the by-law took effect ; also, that it should settle an equal special rate per annum in addition to all other rates to be levied in each year on the real property described therein, and rateable thereunder, for paying the debt and interest ; and it was necessary that the special rate should be sufficient to discharge the debt and interest when pay- able, irrespective of any future increase in the value of the real 1 C. 64. 2 C. 54, s. 299, sub sec. 2. 3 C. 64, s. 301. 1200 PROCEEDINGS IN THE MASTER'S OFFICE. property, and also irrespective of any income from the temporary investment of the sinking fund or of any part thereof. The by-law was also required to recite the amount of the debt created, and, in general terms, the object for which it was created, the total amount required to be raised annually by special rate for paying the debt and interest ; the value of the whole of the real property rateable under the by-law as ascertained and finally determined ; the annual special rate in the dollar, or per foot frontage, or otherwise, for paying the interest and creating the sinking fund ; and that the debt was created on the security of the special rate settled by the by-law, and on that security only. The Municipal Act of 1866^ contains exactly similar provisions to those above mentioned ; and by the act of the Legislature of Ontario amending the Municipal Institutions Act,^ the above pro- visions are extended to towns also. The rent which the Councils of cities, towns and incorporated villages are entitled to charge in respect of property drained into a common sewer, or which by any by-law is required to be drained into any such sewer,^ does not form a tax upon the land, but a personal charge upon the owner ; the authority given by the statute being " for charging all persons who own or occupy pro- perty which is drained," &c. In townships,* on a petition of the majority in number of the resident owners of the property in any part of the township, for the draining of the property being presented, the municipal coim- cil could, under the Consolidated Statute, if of opinion that the draining of the locality described would greatly benefit the town- ship, pass a by-law,* providing for the draining of the locality ; for assessing and collecting from the proprietors of the several lands immediately benefited by the draining, so much of the cost thereof, and of procuring the examination, plans and estimates to be made, and of all other expenses incident to the works, as may 1 29 & 30 Vic. c. 51, ss. 301, 302, 303. 2 Ont. Stat. 31 Vic. o 30, «. 35. 3 Con. Stat. U. C. c. 64, s. 297, sub sec. 20 ; 29 & 30 Vic. c. 51, s 206, sub sec 56 4 Uoore. v. ifynes, 22 Q. B. U. C. 107. 6 Con Stat. U. 0. c. 64, s. 278. SPECIAL IMPROVEMENTS. 1201 not exceed the benefit which the lands respectively derive from such draining, and in proportion, as nearly as may be, to the benefit of each of the proprietors therefrom. The amount so to be assessed or collected would appear to form a charge upon the land, because the council are further empow- ered^ to pro-vide by the by-law " for ascertaining and determining, through the engineer, what real property will be immediately benefited by the draining, and the proportions in which the assess- ment should be made on the various portions of the lands so bene- fited." By the Municipal Act of 1866,^ the powers of township councils are extended to passing by-laws, for, among other things, "the depenineg of any stream, creek or water course, or for draining of the property." There is no doubt that under the provisions of the latter statute, the assessment for any of the above purposes will form a charge upon the property ; the council being given the power^ to provide by the by-law, " for assessing and levying upon the real property to be immediately benefited by the deepening or draining, a special rate sufficient to include a sinking fund, for the repayment of debentures which siich councils are hereby authorized to issue in such cases respectively, to provide funds for such improvements, and for so assessing and levying the same, by an annual rate in the dollar on the real property so benefited, in proportion, as nearly as may be, to the benefit derived by such portion." The rate so assessed is to be levied " in the same manner as taxes are levied."* The councils'of cities, towns and incorporated villages may also pass by-laws^ for sweeping, watering, or lighting any street, square, alley or lane, by means of a special rate upon the rateable property therein. 1 Con. Stat. U. C. oh. 64, sec. 279, sub sec. 4. 2 29 & 30 Vic. ch. 61, sees. 281, 282. 3 29 & 30 Vie. ch. 61, sec. 282. 4 Ont. Stat. 31 Vic. ch. 30, sec. 30. 5 29 & 30 Vic. ch. 61, sec. 340, sub. sec. 2, 52 1202 PROCEEDINGS IN THE MASTER'S OFFICE. The assessment under any by-law of the council of a town or incorporated village, for making or repairing any pavement in any public way or place near to any property, would appear, under the decision of the Court of Queen's Bench in Moore v. Hynes,^ not to form a charge upon the property ; the power given to the council in such a matter being, for assessing or collecting from the pro- prietors, )enefit of this provision, ORDINARY CONTENTS OF AN ABSTRACT. 1295 it is not necessary for him to prove that the taxes paid by him had been legally charged, production of the treasurer's books, shewing that such taxes had been charged and paid, is sufficient.^ In cases where the land sold had not been included in any return of lands by the Surveyor-General, still, if the patent had issued, and the patentee had occupied for at least two years before the sale, occupation for four years by the tax purchaser, and improvements to the amount of $200, made the sale valid. And where the sale was a valid one, or made valid by the act, the conveyance by the Sheriff was not to be invalid by reason of the statute, under the authority of which the sale was made, having been repealed, or the Sheriff who made the sale having gone out of office, before the con- veyance was made. Where the sale or conveyance is void for uncertainty, and the purchaser has improved the land, the value of the land and im- provements is to be assessed in a particular mode, and the claimant is to pay for the improvements, unless the tax purchaser elects to retain the land on paying its value. Where the title of the tax purchaser is not valid, or not made valid by the act, or where no remedy is otherwise given by the act, he has a lien on, the lands for the purchase money paid at the sale, and for all taxes subsequently paid by him, with ten per cent, interest. The act does not apply to any case where the original owner was at the time of the sale, and has since been, in occupation of the land. It forbids the conveyance of rights of entry adverse to a tax purchaser in possession, and for this purpose revives the common law, and the 2nd, 8rd, and 4th sections of the 32 Hen. VIII. ch. 9. Since this act, a tax sale which took place before its passing, cannot be objected to on account of uncertainty in the description, nor on the ground that the Sheriff did not proceed in the sale, and that the sale was not made as required by the statutes then in force.^ By this act of the Ontario Legislature, much of what is contained in the immediately succeeding pages is rendered obsolete. It is, 1 eraser v. West, 21 C. P. U. C. 161. 2 Davis V. Van Nm-iiuin, 30jQ. B. U. C. 437. 1296 PROCEEDINGS IN THE MASTER'S OFFICE. however, retained as an historical record of legislative and judicial decisions in connection with tax titles. Since 1793, the acts relating to the assessment of property and levying taxes thereon have been numerous, have followed each other in such rapid succession, and have been so varied in their provisions, that the law relating to such matters is in an exceed- ingly- unsatisfactory state.^ Under the earlier acts,^ the only remedy provided for levying taxes upon default in payment, was by distress and sale of the defaulter's goods and chattels. The 51 Geo. III., ch. 8, passed in 1811, provided,^ that all lands held in fee simple, by Land Board certificate, Order of Council, or certificate of a Governor of Canada, should be considered rateable property ; that the amount levied should not in any one year exceed one penny in the pound ; * and that in default of payment, the amount should be levied by distress and sale of the defaulter's goods and chattels.^ With the exception of an act^ passed in 1798, which permitted the Justices of the Peace of a District in Quarter Sessions assembled to levy a rate for establishing stone monuments at Township boundaries, and to sell lands for default in payment, the first act authorizing the sale of lands for arrears of taxes was the 6 Geo. IV. ch. 7, passed in 1825. Surveyor-General's Esturn. — The act passed in 1819'' followed the 51 Geo. III., ch. 8, as to the lands liable to taxation, and to enable the municipal ofiicers to impose an equal rate, and to inform them with certainty as to the proper lands chargeable therewith the Surveyor-General was required,^ on or before the 1st day of July, 1820, to furnish the Treasurer of each district with a list or schedule of the lots in every town, township, or reputed township of the district, as the same were designated by numbers, concessions 1 33 Geo. in c. 3 ; 43 Geo III. c. 12 ; 47 Geo. III. c. 7 : 61 Geo. Ill, c. 8 ; 65 Geo. III. c. 6 j 69 Geo in. c. 7 ; 59 Geo. Ill, c. 8 ; 6 Geo. IV. c. 7 ; 9 Geo. IV. c. 3 ; 7 \Vm. IV. c. 19 ; 1 Vic. c. 20 : 4 & 5 Vic. c 10 ; 13 & 14 Vic. c. 67 ; 16 Vic. c. 182 ; 16 Vic, c. 183 ; 27 Vic. c. 19 ; 29 & 30 Vic. c. 1)3 ; Out. Stat. 32 Vic. c, 36 ; Ont. Stat. 33 Vic. c. 23 ; Ont. Stat. 34 Vic. c. 6, 2 33 Geo. III. c. 3 ; 43 Geo. III. c. 12 ; 47 Geo. III. c. 7 ; 51 Geo, III, c. 8. 3 Sec. 4. 4 Sec. 6. 5 Sec. 8. 6 38 Geo. III. c. 1. 7 69 Geo. Ill, c. 7, 8 Sec. 12, ORDINARY CONTENTS OF AN ABSTRACT. 1297 or otherwise, on the original plan, specifying to whom the lot, or any and what pai-t of it had been described as granted by His Majesty, and whether the same or any and what part thereof was ungranted, and also what lots were reserved as Crown or Clergy Reserves, or for other public purposes, and to whom such reserve or any part thereof had been leased ; and he was also, on or before the first day of July in each and every year thereafter, to transmit a list of all lots or parcels of land, specifying the quantity granted or leased, since the last list furnished by him ; and' all the lands included in such list as granted or leased were liable to taxation whether occupied or not. By the 13 & 14 Vic. ch. 67, passed in 1850, the return^ was to be made by the Commissioner of Crown Lands within thirty days after the first day of January in each and every year ; and by the 16 Vic. ch. 182, sec. 48, the return was to include all lands in respect of which a license of occupation had issued during the preceding year. By the 27 Vic. ch. 19, passed in 1863,'^ unpatented lands vested in or held by Her Majesty, thereafter sold or agreed to be sold, oi' located as a free grant, were made subject to taxation from the date of the grant, and all lots formerly granted were made liable to taxa- tion from the 1st of January, 1863. The return of the Surveyor-General or Commissioner of Crown Lands is the foundation of the whole proceeding for taxation of lands,* as no lands can be assessed which are not included in the schedule f and it forms the basis on which the County Treasurer had formerly to keep an account for every parish, town, township reputed township, or place within its district according to the list or schedule furnished by the Surveyor-General, in which account he was to enumerate particularly every lot oi' parcel of land in each township, reputed township, or place, according to the schedule, and charge or credit it for the amount of the taxes and rates pay- able or paid in respect of it for each and every year ; " and from 1 Sec. 13. 2 Sec. 39. 3 Sec. 9. i Doe d. Upper v. Edwards, 6 Q. B. U. C. 698. 6 Peek v. Jtonro, 4 C. P. U. C. 363. 6 69 Geo. in. c. 7, 8. 14 ; Peck v. Monro, 4 C. P. U. C. 363. 58 129S PEOCEEDINGS IN THE MASTER'S OFFICE. which he is now to furnish to the clerk of each local municipality the information necessary for the guidance of the assessors as to what lands are liable to be assessed.^ Before the statute lequired the return to be made in January, it was held that land returned in June for assessment, was liable for the taxes for the whole of the current year.^ Land held by a Crown Land Agent's receipt and not by patent, lease, or license of occupation, and not occupied, was not, before the 1st of January, 1863, liable to assessment, though returned by the Commissioner of Crown Lands under 16 Vie. eh. 182, s. 48, as land to be assessed.^ Assessment. — A question has been raised, what is the assessment and by whom and when is it made ? In Laughtenborough v. McLean* the Court of Common Pleas decided, that " the assessment is the rating which is made upon the assessment roll by the asses.3or, and that it is completed when the roll is finally passed. If this be so, then it follows that the entry as made upon that roll is the assessment which is to govern, and that all the other copies and entries ought to correspond with the primary roll and are only copies of and entries from it." The 59 Geo'. III. ch. 7, required' the Treasurer to keep an account with eacli lot or parcel of land, and charge or credit it for the amount of the taxes and rates payable or paid in respect of it for each and every j^ear. Where^ the rates and assessments upon any lot of land remained in arrear and unpaid for the space of three years, they were to be increased in the proportion of one-third ; if in arrear five years, then they were to be inci'eased one-half; and if sufi'ered to remain in arrear for eight years, the amount of the arrears was to be doubled, and the rates were thenceforth to be charged against the 1 13 ft 14 Vic. c. 67 s. 39 ; 16 Vic. o, 182, s. 48 ; Con. Stat, U. C. c. S5, s. 109 ; 29 & 30 Vic. c. 63, o. 110 • Ont. Stat. 32 Vic. ch. 36, -ec. 109. 2 Doe d. Stata v. Smith. 9 Q. B. U. G. 663. 3 Street V. Kent, 11 (J. P. U. C. 265 ; Street v, SiriKoe, 12 C. P. U. C. 284 ; Street v. Lambtan, 12 C. P. U. C. 204. 4 14 C. P. U. C. 176. 6 Sec. 14. 6 Sec. 16. ORDINAEA' CONTENTS OF AN ABSTEACT. 1299 lands by the Treasurer, and levied in double the amount that would grow due according to the existing rate or assessment. In 1828, it was enacted,^ that no greater accumulation than fifty per cent, should be charged upon any lands on which the taxes should be paid before the 1st of July, 1829 ; and thereafter fifty per cent, and no more was to be charged in all cases in which the taxes remained in arrear longer than five years. By the 13 & 14 Vic. ch. 67, taxes accrued on any land were made^ a special lien on the land, having a preference over any claim, lien or incumbrance of any party except the Crown, and one which does not require registration to preserve it, and which bears interest from the time the taxes become due, which interest is to be deemed part of the taxes. The 16 Vic. ch. 182, required^ the Treasurer, on the 1st of May in each year, to complete and balance his books by entering against each parcel of land, the arrears, if any, due at the last settlement, and the taxes of the preceding year which may remain unpaid. If at the making of such balance it appeared that any arrear of taxes was due upon any parcel of land, the Treasurer was to add to the whole amount then due, ten per cent, thereon.* This was reduced to eight per cent.^ in 1866, and again raised to ten per cent, in 1868.^ The ten per cent, on arrears of taxes was calculated on the whole amount in arrear and due upon the land, and not merely on the amount of each year's assessment. In Gilespie v. The City of Hamilton'' the question was raised whether the ten per cent, authorized to be charged upon arrears of taxes, should be added to the amounts in arrear in each year, includ- ing the previous additions of ten per cent., or simply on the amount of taxes then in arrear, and it was held that it should be added to the whole amount. Draper, C. J., in delivering judgment said, " I think the Legislature have used language very clearly indicating an 1 9 Geo. IV. ch. 3 sec. i 2 Sec. 36. 3 Sec. 61 ; Con. Stat. U. C. ch. 55, sec. 116. 4 16 Vic. ch. 182, sec. 53 ; Con. Stat. U, C. oh. 66, sec. 121. 6 29 M 30 Vic. ch, 63, sec. 126. « Ont. Stat. 32 Vic. ch. 36, sec. 125. 7 VJ. 0. P. U. C. 426. 1300 PROCEEDINGS IN THE MASTER'S OFFICE. intention that ten per cent, should be added every year, calculated on the "whole amount which is in arrear and due upon the lands at the time the charge is made. In the present case the lands "were liable to satisfy a given sum on the 1st of May, 1862, "which sum included taxes for preceding years, and ten per cent, added thereto at the preceding 1st of May. To that sum "which constituted the "whole amount due on the lands, the statute, as I read it, directs that ten per cent should be added." By the earlier acts the amount of taxes "which could be charged in one year "was limited. The -51 Geo. III., eh. 8, sec. 6, provided that the sum levied should not exceed, in any one year, one penny in the pound. By the 59 Geo. III., ch. 7, the Justices of the Peace in Quarter Sessions were^ not to raise more money than "was required for de- fraying the pubhc expenses of the District, and this "was to be apportioned among those " "who "were named in the rate roll ;'' "which did not include the non-residents. Where the Quarter Sessions did not assess certain lands, but the Treasurer left blank columns in his books for certain years, and charged of his 0"wn authority, at indefinite times, the maximum charge of one pennj^ in the pound, under the idea that the statute had imposed that sum, which was generally known as the wild land tax, on all lands, a sale for the arrears of such taxes was held void.^ The 59 Geo. III., ch. 8, enacted,^ that all unoccupied lots of land should be rated one-eighth of a penny per acre annually towards defraying the expense of making and maintaining roads, and in the case just cited, the sale although made to satisfy such rate also, was held void, because illegal rates were included in the amount for which the land was sold. By the -t & 5 Vic, ch. 10, sec. 41, the amount which could be raised by assessment was made two pence in the pound, and for district purposes one penny half-penny in the pound. 1 Sec. 7. 2 CotUsT T. Sutherland, 18 C. P. U. C. 402. 3 Sec. 3. ORDINARY CONTENTS OF AN ABSTRACT. 1301 An assessment under this act of so much per acre, instead of on the assessed value, has been held illegal .^ Where the Surveyor-General returned a tract of land as a single lot, it has been held that it must be assessed as one lot, though half of it may be in one concession and half of it in another,^ and where several lots are included in one grant, but described by separate numbers, a portion of each lot must be sold to pay the taxes due upon such lot, and not a portion of the whole block, beginning at the boundary from which the lots are numbered, for the taxes due upon the whole.^ Treasurer's Return of Lands in Arrear. — By the 6 Geo. IV., c. 7, passed in 1825, provision was made " for levying under certain restrictions, the assessments which may remain in arrear, by the sale of a portion of the lands on which the same may be charged." That act provided* that the Treasurer of each District should at the next Quarter Sessions after the 1st of July, 1828, present to the Justices in Quarter Sessions, an accurate account of all lands in the district upon which the assessment or any part thereof was in arrear for the space of eight years, specifying the lot or parcel of land by number, concession and township, or otherwise, as the same appeared in the schedule furnished to the Treasurer, and also^ the amount due for assessment thereon; and should also at the Quarter Sessions next after the 1st of July in each year thereafter furnish a like account. The Treasurer was also,^ within one month after rendering his account, to insert in the Upper Canada Gazette, and in some public newspaper in the district, a list of all the lots returned by him in his account, as liable to sale, and if no newspaper was published in the district, he was, within the same time, to affix a list in some conspicuous place in each township. By the 13 & 14 Vic, c. 67, passed in 1850, the CoHector, if any taxes remained unpaid, was required,' when returning his roll, to 1 Doe d. McOai v. Langtm, 9 Q. B. U. C. 91 ; Williams v. Taylor, 13 C. P. U. C. 219. 2 Doe. d. Upper v. Edwards, 6 Q. B. U. C. 694. 3 Munro v. Gray, 12 Q. B. U. i\ 647 ; McDonald v. Robilard, 23 Q. B. U. C. 105 ; Ridowt v. Eetchmil 5 C. P. U. C. 50 ; Black v. Harrington, 12 Grant, 175 ; Christie v. Johnston, 12 Grant, 534. 4 Sec. 6. 5 Sec. 6. 6 Sec. 9. 7 Sec 42. 1302 PROCEEDINGS IM THE MASTER'S OFFICE. deliver an account of all the taxes remaining due, showing opposite each separate assessment the reason why he did not collect the same, by inserting " non-resident," or, " no property to distrain," to make oath that the sums mentioned in the account remained un- paid, and that he had not by diligent enquiry been able to discover any goods or chattels upon which he could levy ; and such account was made sufficient authority for the Treasurer to proceed to sell the lands. The Treasurer was thereupon^ to enter in a book kept for the purpose, a copy of the roll so far as it related to the lands of non- residents, together with the taxes charged upon such lands ; and he was within one month after receipt of the roll to address a circular letter through the post to the owners of the several lots stating the amount due, and calling for payment, and if he was unable to satisfy himself as to the owner of any lot or where he resided, he was to put in the Official Gazette a list of the lands, setting forth the total amount due on each lot, and calling for payment ; charg- ing to the land the expense of publication. The act also required^ the Treasurers of Counties, on or before the 1st of January, 1851, to make out and submit to the Municipal Council of the County a list of the lands in their respective counties on which any taxes remained unpaid, stating the number of acres in each lot or part lot, the number of years for which it was in arrear for taxes and the amount of taxes due, together with the names of the owners so far as such Treasurer had been able to ascertain them, and the amount of such arrears were to be added to the assessment roll for 1851. A sale under this of occupied lands as non-resident has been held illegal.^ The 16 Vic, c. 182, s. 47, required a similar return of lands on which the Collector had been unable to collect the taxes, to be made to the Township Treasurer, and it was made* the duty of the latter officer to return a correct copy of the roll to the County Treasurer. 1 Sees. 43, 44 2 Sec. 46. 3 Street v. Fogul, 32 Q. B. U. C. 119. 4 Sec. 49. ORDINARY CONTENTS OF AN ABSTRACT. 1303 By this act' the necessity for a return to the County Council of lands in arrear for taxes, as a preliminary to their sale, seems to have been done away with, and the Treasurer was empowered whenever a portion of the taxes had been due on any lot for five years, to issue a warrant for sale by the Sheriff, but the Council could direct that no warrant should issue until some portion of the arrears were due for a period longer than five years. This course continued to be pursued until 1866, when the 29 & 30 Vic, c. 53, which substituted the County Treasurer for the Sheriff" as the officer to sell lands for arrears of taxes was passed. This act requires^ the Treasurer to submit to the Warden a list in duplicate of all lands liable to be sold for taxes, with the amount of arrears against each lot set opposite the same. To each of these lists it is made the duty of the Warden to affix the seal of the Cor- poration and his signature, and one of them is to be deposited with the Clerk of the County, and the other returned to the Treasurer, with a warrant annexed under the hand of the Warden and seal of the County, commanding him to levy the arrears. In an ejectment suit by a purchaser of land sold for taxes under 6 Geo. IV., c. 7, it has been held^ necessary to prove that a return was made of the land having been the proper time in arrear for taxes, and that the writ to sell was grounded on this return. The books of the Treasurer showing the land to be in arrear, are sufficient proof of the fact of arrear, but it has been doubted whe- ther the warrant to sell would be so ;* and that the taxes were in fact in arrear for the proper time.^ An extract from the Treasurer's books showing the taxes to be unpaid, is not sufficient evidence of the fact.« Writ to Sell. — By the 6 Geo. IV., c. 7, upon the Treasurer^ lay- ing before the Quarter Sessions the list of lands in arrear for taxes, it was made^ the duty of the Clerk of the Peace in each district to 1 Sec. 65 ; Con. Stat. U. C. ch. 65, ss. 123, 124. 2 Sec. 192. 8 Doe d. Bell v. Reaumore, 3 Q. B. 0. S. 243. 4 HaU V. Hill 22 Q. B. U. C -678 ; 2 Er. & Ap. 569. 5 Doit d. Upper v. Edwards, 6 Q. B. U. 594 ; Doe d. Sherwood v. Matlieson, 9 Q. B. U. C. 321 ; Bartoume v. Boushey, 7 0. P. U. C. 464; Errington v. Dumble, 8 C. P. U. C. 65 ; Allan v. Fisher, 13 0. P. U. 63 ; Myers v. Brown, 17 C. P. U, 0. 397 ; Jones v. Bank of Upper Canada, 18 Grant, 74. 6 Munro v. Orey, 12 Q. B. V. 0. 647. . 7 See. 6. 8 Set. 7. 1304 PROCEEDINGS IN THE MASTER'S OFFICE. make out a warrant fur levying the assessment due, specifying in the writ the particular lot or parcel of land, and the amount due thereon, which warrant was to be signed and sealed by the Clerk of the Peace, directing the Sheriff of the district to levy the amount therein stated to be due, together with certain fees imposed by the act, by sale of such portion of the lands and tenements upon which the assessments were chargeable, as should be sufficient for that purpose, provided there was no distress upon the lands from which the same could be made, and if there was such distress, then to levy the same by sale of the distress. This^ writ was to be made return- able at the third Quarter Sessions after issuing the same, and the Sheriff was directed to have the moneys levied under the writ at the said Court. The writ to sell continued to be issued by the Clerk of the Peace until 1850, when the 13 & 14 Vic, c. 67, enacted,^ that the County Treasurer should, within thirty days after the Collector made his return, issue a warrant under his hand and seal directed to the Sheriff of the County, commanding him to levy on the lands of non-residents for the amount of taxes remaining due thereon and his costs. The 16 Vic, c 182, s. 55, empowered the Treasurer to issue the warrant whenever a portion of the taxes on any land had been due for live years.^ Since 1869 the sale may be whenever a portion of the taxes has been in arrear for three years.* In the warrant, the Treasurer was required* to distinguish such lands as had been patented, from those which were under a lease or license of occupation and of which the fee remained in the Crown, and this continued to be the case until 1866.^ The 29 & 30 Vic, c. 53, s. 129, contains no similar provision. The writ to sell must be founded upon the Treasurer's return ; and it must be under the seal as well as the signature of the proper officer, and if not sealed, all sales under it are void.^ 1 Sec. 8. 2 Sec. 48, 3 Con. Stat. U. C. ch. 55, sec. 124 ; 29 & 30 Vic. ch. 53, sec. 129. 4 Ont. Stat. 32 Vic. ch. 36, sec. 128. 5 16 Vic. c. 182, sec 56 , Con. Stat. U. C. ch. 55, sec. 125. 6 Dm d. Bell v. Reaumore, 3 Q. B. O. S. 243 ; Errinuton v Dumble, 8 C. P. U. 0. 66. 7 Morgan v. Quesnel, 26 Q. B. U. C. S39. ORDINARY CONTENTS OF AN ABSTRACT. 1305 A mistake in representing the taxes as due from the 1st of July, 1820, to the 1st of July, 1828, in place of from the Isfc of January to the 1st of January of these years, has been held not important, the taxes being in fact due for the full period of eight years.^ A writ issued in 1837, and postponed by 1 Vic. c. 20, was held properly acted upon in 1839.^ The omission, since 1853, to distinguish, in the writ, whether the lands were patented or under lease or license of occupation, has been held fatal to it f and to a sale under it ; * but describing the lands as " all patented," ^ or, as "all deeded,"^ is sufficient. Describing the lands to be sold, in a schedule which is incorporated with the warrant, so as to be a part of it, is sufficient. The writ should show the particular land that is to be sold ; there being confusion and doubt in this respect will avoid the sale ;'' but if the identity can be established it is sufficient.* The writ can issue only after the full period is past for which the land can be sold." Thus were the first year's taxes were imposed by a by-law passed in July, 1852, but the collector's roll was not de- livered until after August, 1852, a sale under a Treasurer's warrant dated 10th July, 1857, was held invalid.i" Where a new county is created, and taxes become due to it, and taxes are also and were due before the separation, the writ to sell goes to the Sheriff (treasurer) of the new county to sell for the ar- rears due both counties. ^^ Distress. — In the case of sales under the earlier tax acts it is necessary to show that there was no sufficient distress on the pre- mises.^^ Under the 6 Geo. IV., c. 7, s. 7, the warrant to be issued by the Clerk of the Peace directed the Sheriff to levy the amount due, by 1 Doe d. Stata v. Smith, 9 Q. B. U. C. 668. 2 Todd V. Werry, 16 Q. B. U. C. 614 ; Hamilton v. McDonald, 22 Q. B. U. C. 236. 3 Hall V. Um, 22 Q. B. U. C. 578 ; S. C. 2 Er. S Ap. 669 ; McAdie v. Corby, 30 Q B. U. C. 349. 4 Brooke v. Camphell, 12 Grant, 526. 5 Cook V. Jones, 17 Grant, 490. 6 Ball V. mi, 22 Q. B. U. C. 578. 7 Toumsend v. EllMt, 12 C. P. U. C. 217. 8 McDonriell v. McDonald, 24 Q. B. U. C. 74. 9 Kelly V. Macklem, 14 Grant, 29. 10 Connor v. McPherson, 18 Grant, 607, and see Ford v. Proudfoot, 9 Grant, 478 ; Bell v. McLean, 18 C. P. U. C. 416. 11 Doe d. Mounteashel v. Orover, i Q. B. U. C. 23. 12 Doe d. Bell v. Reauiiiore, 3. (J. B. O. S. 243 ; Doe d. Upper v. Edwards, 5 Q. B. U. C. 694. 1306 PROCEEDIN(;S IN THE MASTER'S OFFICE, sale of such portion of the land as should be sufficient for that pur- pose, provided there was no distress thereon from which the same could be made, and if there was such distress, then by sale of the distress. The Sheriff was not obliged to look for a distress on the land be- tween the time he first offered it for sale, and the time when an adjourned sale was had, and a distress in fact being upon the land between these two periods did not invalidate the sale.^ The old law as to the omission to distrain invalidating a sale seems to have been altered by the 13 & 14 Vic. c. 67.^ The 16 Vic. c. 182, enacted^ that it should be lawful for the Trea- surer, whenever he should be satisfied that there was a distress upon the lands of non-residents in arrear for taxes, to issue a warrant under his hand and seal to the Sheriff, who should thereby be autho- rized to levy the amount due upon any goods and chattels found upon the land, in the same manner, and subject to the same restric- tions, as referred to distress made by a Collector.* The 58th section required the Sheriff, if at any time after the receipt of the warrant to sell, he had good reason to believe that there was a distress upon any parcel of land included therein, to levy the arrears of taxes and the costs by distress and sale of any goods and chattels found on the land. To this section a proviso was added that no subsequent sale of any such parcel of land by the sheriff should be held illegal or invalid by reason of there having been any goods and chattels thereon before or at the time of the sale, and the Sheriff having neglected to levy the tax by the distress and sale of the same. The 27 Vic. c. 19, passed in 1863, provided^ that the Treasurer and Sheriff should not be required to inquire before sale of land for taxes whether there was any distress upon the lands, but the more recent statutes® contained a provision as to the Treasurer similar to that contained in the 16 Vic. c. 182, s. 5^, except that the warrant 1 Eamilton v. McDmnald, 22 Q. B. U. C. 136. 2 Hamilton v. McDonald, 22 Q. B, U. C. 136 ; McDonnell v McDonald, 24 Q. B. U. C. 74. 3 Sec. 54 ; see also Con. Stat. U. C. oh. 55, sec. 122. 4 Sees. 42 43 and 44. 6 Sec. 4. 6 29 & 30 Vic. oh. 63, sec. 127 ; Ont. Stat. 32 Vic. c. 36, sec. 126. See Snyder v. Shibley, 21 C. P. U. C. 618. ORDINARY CONTENTS OF AN ABSTRACT. 1307 issued by the Treasurer is to be directed to the Collector of the local municipality instead of to the Sheriff. Section 4 of this act covers all errors as regards the purchaser at a tax sale, if any taxes, in respect of the land sold, had been in arrear for five years; and this applies where an occupied lot has been assessed as unoccupied. ^ It was not made the duty of the Treasurer to search for a distress on lands ; but if satisfied that there was^a distress, it would be necessary to allege and prove that he had notice of the distress. ^ Even the neglect of a collector whose duty it was to search for distress, has been held not to invalidate a sale subsequently made of the land for arrears which might in whole or in part have been satisfied by such distress.^ The old law was otherwise, especially if it could be shown that there was a sufficient distress upon the land at the time of the sale.* Advertisement. — The 6 Geo. IV, c. 7, required the Sheriif,^ within one month after receiving the writ, to insert in the Upper Canada Gazette, and in all the printed newspapers in the district, a notice of the time and place at which he would attend to sell the lands and if no newspaper was published in the district, then the notice, was to be affixed on the door of the Court House, and also in two or more places in each township. By the 13 & 14 Vic. c. 67, the sale^ was to be advertised onceineach month for four successive months, in some newspaper of the County, if any such, and if none, then in a newspaper in an adjacent county, and the last insertion of the advertisement was required to be at least one week prior to the day of sale. The Sheriff was also required^ to post a notice similar to the advertisement in some convenient and public place in the county, three weeks before the time of sale. These notices^ were to state the names of all owners 1 Bank of Toronto v. Fanning, 18 Or. 391. 2 Foley V. Hoodie, 16 Q. B. U. C. 254. 3 Allan v. Fisher, 13 C. P. U. C. 63 ; Stewart v. Taggart. 22 C."P. U. C. 284. 4 DohUe V. Tully, 10 C. P. U. C. 482 ; but see Doe d. Powell v. Itorison, 2 Q. B. U. 0. 201 ; Doe d. Upper V. Edwards, 6 Q. B. U. 0. 694 ; Stafford v. Williams, 4 Q. B. U. C. 488 ; Fraser v. Mattice, 19 Q. B. U. C. 160. 5 Sec. 10. 6 Sec. 60. 7 See. 61. 8 Sec, 62. 1308 PROCEEDINGS IN THE MASTER'S OFFICE. known to the Sheriff, with the total amount of taxes assessed ou their lands respectively, and when the owners were not known, the advertisement was to state the total amount of taxes upon the several lots or half-lots. The 16 Vic. c. 182, required the Sheriff,^ immediately upon re- ceipt of the Treasurer's warrant to prepare a list of all the lands in- cluded therein, and the amount of arrears due on each parcel, "and cause the same to be published for the space of three months in the Government Official Gazette, and in some one newspaper published within the county, or if none published in the county, in some newspaper published in an adjoining county. In this advertisement lands patented were to be distinguished from those the fee of which was in the Crown,^ and it was to contain^ a notification that unless the arrears were sooner paid, the Sheriff would proceed to sell the lands for the taxes, on some day named in the advertisement, which day was required to be more than three months after the first pub- lication. A notice similar to the advertisement was also to be posted in some convenient and public place at the Court House of the county, at least three months before the time of sale.* Under the recent acts^ the advertisement issued by the County Treasurer, who is now the officer entrusted with the sale of laiids for taxes, is to contain similar information as to the amount of arrears, a notification that the lands will be sold on a given day unless these are sooner paid, and to distinguish the lands as patented or unpatented. In addition the advertisement is to state in a sepa- rate column the proportion of costs chargeable upon each lot for advertising, and for the commissions allowed to the Treasurer. The advertisement is by these acts® to be published four weeks in the Official Gazette, and once a week for thirteen weeks in some newspaper published in the county, or in an adjoining county, as the case may be. It is also expressly enacted '^ that the day of sale shall be more than ninety-one days after the first publication of the list. 1 Sec. 67. 2 Sec. 56. 3 See. 67. i Sec. 57. 5 29 and 30 Vic. oh. 63, se»s. 133, 134 ; Ont. Stat. 32 Vic. oil. 36, sees. 132, 133. 6 Sees. 132, 133. 7 Sees. 134, 136. ORDINAEY CONTENTS OF AN ABSTRACT. 1309 This section was probably introduced on account of the doubt raised in the case of Connor v. Douglas.^ In that case it was held by the Chancellor (and afterwards approved by the Court of Error and Appeal) that publication in the Canada Gazette for thirteen weeks, from and including the 1st of August, to and including the 24th October, 1857, though not an advertisement for three months, which would have required the advertisement to be continued till and to include the 31st of October, did not render the sale invalid. In Jarvis v. BrooJce,^ it was held that the omission to advertize the sale in the county local paper, the advertisement being regularly published in the Official Gazette, did not invalidate the 'sale. This decision was arrived at because such an omission would not, on common law principles, avoid a sale under execution. The Court of Common Pleas, however, in Williams v. Taylor,^ held that the omission to advertise in a local paper under the special provisions of 16 Vic. c. 183, ss. 7 and 8, avoided the sale, saying, " The omission of either of these advertisements interposes an insuperable obstacle to the application of the remedial portion of the act in favor of purchasers at such sales." In the later case of Hall v. Hill,^ the Court of Queen's Bench, speaking of Williams v. Taylor, said, " That decision though under a different statute was upon a case very analogous in principle, and if it were necessary for the decision of this case, we should as at present advised, arrive at the same conclusion. Sale.— By the 6 Geo. IV., c. 7, no^ sale was to take place in less than six months from the delivery of the writ to the Sheriff, nor was any sale to be made out of the township in which the land was situate, unless the township was so thinly inhabited as to have no meeting held within it for the election of parish officers, in which case the sale might take place in the township to which the same might be annexed for the purpose of holding its annual town meeting. 1 16 Grant, 456 ; and see McLaughlin v. Pyper, 29 Q. B. U. C. 526. 2 11 Q. B. V. C. 299. 3 13 C. P. U. C. 219. 4 22 Q. B, U. C. 678. 6 Sec. 11. 1.310 PROCEEDINGS IN THE MASTER'S OFFICE. The^ mode of selling was to be by public auction, and the assess-* ment in arrear and the expense attending the writ were to be declared, and the person who offered to pay the assessment and expense for the least portion of the lands was to be considered the purchaser. In selling, the Sheriff was to expose the lands for sale in the following manner •? " He shall begin at the front angle on that side from whence the lots are numbered, and measure backward, taking a proportion of the width corresponding in quantity with the pro- portion of such particular lot, in regard to its length and breadth, according to the quantity required to make the sum demanded ; and at every subsequent sale of a portion of the same lot or parcel of land, under this act, shall proceed to take a tract of equal width as the former measuring backward from the limits of the tract last sold." Where the Sheriff could not, from the position or descrip- tion of the land, pursue the mode pointed out above, he was to sell such portion of the lot as appeared to him most for the interest of the proprietor.^ He had also* power to adjourn the sale from day to day, giving public notice thereof, and if any person did not pay the amount of his purchase on the day of sale, the Sheriff could re-sell on any other day to which the sale was adjouTned. Several alterations were made in 1837, by the 7 Wm. IV., c. 19. The sale^ of lands for arrears of taxes was to take place in the Town in which the General Quarter Sessions for the District were held, on the second day of the sitting of the Court, at or near the Court House. The land was to be put up for sale at an upset price of two shil- lings and sixpence an»acre, and if there was no bidder at that rate, then the Sheriff was to proceed according to the former act,^ at the next Court of Quarter Sessions after the expiration of the six months' notice required by law. The fifth section made it lawful for the Sheriff to put up and adjudge to the purchaser such part of the lot as he might in his discretion think best for the interest of the proprietor. 1 Sec. 12. 2 Sec. 13. 3 Sec. )4. 4 Sec. 16. 6 Sec. 1. 6 Geo. IV., ch. 7 ORDINARY CONTENTS OF AN ABSTRACT. 1311 The 13 & 14 Vi£., c. 67, required thei Sheriff to sell by piiblic auction so much of the lands as should be sufficient to discharge the taxes, with the interest thereon, and all lawful charges incurred in and about such sale and the collection of the taxes, sellina: in preference such part of the land as he might consider it most for the advantage of the owner to seU first. The 16 Vic, c. 182, con- tained^ a similar provision. Where the Sheriff sold land of which the fee was in the Crown, he was to sell only the interest therein of the lessee or locatee.'' The recent acts* which substitute the Treasurer for the Sheriff as the officer who is to sell lands for taxes, contain provisions exactly the same as to selling such part as the Treasurer may consider best for the owner to sell first. These acts further declare that, " In offering such lands for sale, it shall not be necessary to describe particularly the portion of the lot which shall be sold, but it shall be sufficient to say that he would seU so much of the lot as shall be necessary to secure the payment of the taxes due." This clause was probably inserted because V. C. Mowat had held* it necessary that the Sheriff should state to intending purchasers what portion of the lot was being offered for sale. Where the warrant to sell contained two entries of taxes due on the same lot, and the Sheriff on one day sold the land for the taxes entered as due for 18.58, and a month after, at an adjournment of the sale, sold the same lot to another person, for the taxes entered as due for 1859, the Court set aside the first sale because at it the Sheriff did not sell for all the taxes due on the lot, but for a portion only. The second sale was also declared void because the Sheriff having previously, at the same sale and under the same warrant, sold the land, he could not sell it again to another person.^ The Court distinguished the case just referred to from Mills v McKay,'' where a sale having taken place in 1865 for arrears of taxes extend- ing from 1859 to 1865, another sale took place in 1866 for the taxes 1 Sec. 63. 2 Sec. 59 ; and see Con. Stat. U. C. ch. 66, see. 137. 3 16 Vic. ch. 182, sec 6S ; Con. Stat. U. C. ch. 65, sec. 138. 4 29 & 30 Vic. ch. 53, sec. 139 ; Ont. Stlt. 32 Vic. ch. 36, sec. 138. 6 Knagc/s v. Ledyard, 12 Grant, 320, and see Orant v. Gihiwre, 21 C. P. U. 0. 18. 6 Schaefer v. Lundy, 20 C. P. U. C. 448. 7 16 Grant, 192. 1312 PROCEEDINGS IN THE MASTERS OFFICE. of l'S.158 which had been overlooked at the time of the first sale. V. C. Mowat held that the first sale must prevail, on the ground that the Legislature did not intend to allow Municipal Corporations to make successive sales for parts of the taxes in arrear at one time. The sale of a whole lot which lay in two concessions, for an arrear of taxes alleged to be due upon one half, has been held illegal, because there was no such distinct half to be assessed.^ The assessment should have been on the whole lot. A sale for a total charge of £5 lis. 8d., of which only £1 8s. had been legally imposed was held to be wholly void f but the good rate being separable from the bad, held not to defeat a distress in toto.3 In Allen v. Fisher,*' however, Draper, C. J., though he considered he was bound by the authorities on the point, said, " I have felt a difficulty in holding a sale entirely void, on the ground that the amount directed to be levied was larger than was properly due." The statutory provision requiring certain rates to be kept sepa- rate on the Collector's roll is directory only, and where the direction had not been observed , a sale for non-payment of taxes was held valid notwithstanding.'' A purchaser procuring the whole lot to be knocked down to him, bj'^ requesting the bystanders not to bid against him as he wanted to confirm his title by purchasing"'it in, acted improperly, and the sale so conducted is void.^ In Henry v. BurnessJ where the conduct of the Sheriff in selling the whole of a valuable lot of land for a trifling amount of taxes was impeached, counsel" contended that the Sheriff could not be taken to know the value of a whole lot necessarily so greatly ex- 1 See Doe d. Upper v. Edwards, 5 Q. B. U. C. 594 ; Monro v. Grey. 12 Q. B. U. C. 647 : see also McDonald v. RobUlard, 23 Q. B. U. C. lOS ; Laughtenhorough v. McLean, H C. P. U. C. 175; Ridout V. Ketchum, 5 C. P. U. C. 55 ; Black v. Harrington 12 Grant, 175 ; Christie v. Johnston, 12 Grant, sec. 634. 2 See Doe d. McOill v. Langton, 9 Q. B. U. C. 91 ; Irtoin v. Harrington, 12 Grant, 179, and bee Tokham V. Hall, 15 Grant, 335 ; Edinburgh Life Assurarice Oo. v. Ferg^tson, 32 6. B. U. C. 275. 3 Corbet v. Johnston, 11 C. P. U. C. 317. 4 13 C. P. U. C. 72. 5 Cook V. Jones, 17 Grant, 438. 6 Todd V. Werry, 15 Q. B. U. C. 614. 7 8 Grant, 845. ORDINARY CONTENTS OF AN ABSTRACT. 1313 ceeded the arrears of taxes that a sale of the whole was improper. But V. C. Spragge said^ " This implies that the Sheriff is not bound to acquaint himself with what he is selling ; that he may remain properly ignorant of the improvements, the quality of the soil, and of every particular beyond the number of the lot and the assumed quantity. I by no means concede that he can properly be ignorant of these particulars ; he has peculiar facilities for becoming ac- quainted with them, and if he had not, still if it be his duty to sell for the best price, as I take it to be, he cannot discharge that duty if so utterly ignorant of what he is selling as not to know whether it is worth £2 10s. or £500. Besides; the statute, in making it the duty of the Sheriff to sell not only as little as possible, but that part which is the least injurious to the land-owner, seems to con- template his making himself acquainted with the land he is selling." In that case, combination among the purchasers was also relied on as a ground for setting aside the sale. On that head the learned Vice-Chancellor said, " I do not mean to say that actual combina- tion is necessary to invalidate such a sale. The prevention of com- petition by any undue means, I apprehend, would be sufSeient because against public policy, and a fraud upon the sale."^ Where the av rit to sell was delivered to the Sheriff when in office, but he did not sell till he was out of office, the sale was held invalid, as it was not shown that he had while in office, begun to act upon it.3 It has been doubted whether land, improperly assessed as non- resident land, when it was in fact occupied, can be legally sold for arrears.* Where taxes are due to an old county, and taxes become due to a new county after separation, the sale for both arrears should be made by the Sheriff of the new county where the land lies.^ Payments. — None of the acts in express terms authorize the Sheriff to receive payment of the taxes in arrear after receipt of the 1 Henry v. Biirness, 8 Grant, 357. 2 See also Davis v. Clark, 8 Grant. 358. 3 McMillan v. McDonald, 26 Q. B. U. C. 464. 4 Allan V. Fisher, 13 C. P. U. C. 63. 5 Doe d. Mountcashel v. Grover, 4 Q. B. U. C. 23. 59 1314 PROCEEDINGS IN THE MASTER'S OFFICE. warrant to sell. The 53rd section of the 13 & 14 Vic, c. 67, directs the Sheriff to sell, " if no person shall appear to pay the taxes at the time and place appointed for the sale." And in the subsequent acts,^ the words used are, " If the taxes shall not have been pre- viously collected, or if no person shall appear to pay the taxes at the time and place appointed for the sale." These expressions imply that the Sheriff may receive payment, and accordingly it has been held that a payment of taxes to the Sheriff, while he had the warrant to sell, is good.^ After the sale takes place, the owner has still a period allowed for redeeming. This was at first twelve months,^ then it was ex- tended to three years,* and again reduced® to " one year from the day of sale, exclusive of that day," at which it has since remained.* After the sale of a whole lot for taxes, the Treasurer may receive payment of the taxes in redemption of a part of it, if the lot had been in fact subdivided, and the Treasurer determines in good faith that such part was a distinct division.'' If the Treasurer can take notice of land granted, though not re- turned as such, he must take notice of the particular part of the lot so granted, and he must apply the paj'ments made to him on the part so granted.* Description of lands. — The 6 Geo. IV. c. 7, having fixed the manner in which the Sheriff was to ascertain the exact portion sold, by beginning to measure it from a given point and taking a pro- portionate width of the lot, a description of thirty acres of Lot 15, &c., to be measured according to the statute, has been held a sufficient description.^ The subsequent act 13 & 14 Vic. c. G7, which required the Sheriff to sell the part most advantageous for the owner, provided that he 1 16 Vic, ch. 182, sec. 69 ; Con. Stat. U. C. ch. 65, sec. 137 ; 29 & 30 Vic. cli. 53, sec. 139 ■ Ont. Stat 32 Vic. cli. 36, sec. 188. 2 Doe d. Sherwood v. Mattheson, 9 Q. B. U. C. 321 ; Jarvis v. Cayley, 11 Q. B. U 0. 282 • Janis v Brooke, 11 Q. B. U. C. 299. 3 6 Geo. IV. ch. 7, sec. 18. 4 13 & 14 Vic. ch. 67, sec. 54. 6 Ifi Vic. ch. 182, sec 64 ; Con. Stat. U. C. ch. 66, sec. 148. 6 29 & 30 Vic. ch. 53, sec. 149 ; Ont. Stat. 32 Vic. ch. 36, sec. 148. 7 Payne \. Goodyear, 26 Q. B. U. C. ua; Brooke v. Campbell, 12 Grant, 626. 8 Peck V. Monro, 4 C. P. U. C. 363. 9 Fraser v. Mattice, 19 Q. B. U C. 150 ; Mclntyre v. G. W. Railway Co., 17 Q. B. U. C. 118. ORDINARY CONTENTS OF AN ABSTRACT. 1315 should state distinctly in the certificate to be delivered to the purchaser, what part of the lot -was sold, or that the whole lot was sold, as the case might be ; and the deed given to the purchaser was^ to describe the land by its situation, boundaries and quantity. In the 16 Vic. c. 182, ss. 59 & 65, the words used as to the certificate and deed are the same as those in the 13 & 14 Vic. c. 67, ss. 54 & 57. The more recent acts^ require the Treasurer to "give a description of the part sold with sufiicient certainty, and if less than a whole lot, then by such a general description as may enable a surveyor to lay off the land sold on the ground." A description of the land sold by the Sheriff as " eighty-nine acres of the south part of Lot twenty-five, &c." would be insufficient, for want of the proper boundaries defining the precise locality.^ So a sale of land for taxes, the only description of which in the Treasurer's warrant and Gazette, was " Pt of S. pt. Ill, 1st Con. Tay., 40 acres," could not be supported.* The designation " N. or W. ^ 14," has been held sufficient.^ And since the Ont. Stat. 32 Vic. ch. 36, sec. 138, a sale of 89 acres of a particular lot has been held suf- ficient.^ The Deed. — Where lands were sold under the 6 Geo. IV. c. 7, but no deed was made of them while that act was in force, it was held that no deed could be made after the repeal of the act in 1851, as no provision was made for such a case,^ and the same thing was decided as to sales made under 13 & 14 Vic. c. 67.^ A deed may now be made by the successor of the Sheriff who sold.^ Formerly no time was limited within which it was necessary to register a deed of land sold for taxes, but it is now necessary to register it within eighteen months after the sale.i*' The same acts 1 Sec. 57. 9 29 & 30 Vic. «h. 63, sec. 147 ; Ont. Stat. 32 Vic. ch: 36, sec. 146. 3 McDonnell V. McDonald, 24 Q. B. V. C. 74 ; see also Taylor v. Foster, 25 Q. B. U. C 406 ; Knagr/s V. Ledyari 12 Grant, 320 ; Fraser v. Mattice, 19 Q. B. U. C. 150. 4 Grant v.' Oilmojir, 21 C. P. U. C. 18. 5 Stewart v. Taggert, 22 0. P. U. C. 284. 6 Stewart v. Taggert, 22 C. P. U. C. 284. 7 Bryant v. Hill 23 Q B. U. 0. 96. 8 McDonald v. McDonell, 24 Q. B. U. C. 424. 9 27 & 28 Vic. ch. 2, sec. 43. 10 29 Vic. ch. 24, sec. 67 ; Ont. Stat. 31 Vlc,5ch. 20, sec. 68. 1316 PROCEEDINGS IN THE MASTER'S OFFICE. require all deeds on tax sales, before the passing of the acts, to be registered within one year after the passing of the acts. In the case of Cotter v. Stdherland} an objection was taken which the Court said struck at the root of every tax sale resting upon a rate imposed before the General Assessment Act of 1850, and in- validated every one of them. This objection was that no Court of Quarter Sessions ever imposed a rate of any kind upon wild lands, but that the Treasurer of his own motion charged every wild lot one penny in the pound of its statutable value under the idea that the statute directly imposed that tax upon the land. In the same case many points of importance were decided for more particular notice of which reference must be made to the very able and exhaustive judgment delivered by Mr. Justice' Adam Wilson. Sheriff's Deeds. — Where a title is derived through a sale by a Sheriff under an execution, the purchaser's solicitor must see that there is a judgment duly entered up of record f that the writ under which the Sheriff sold was valid on the face of it f and that it was acted upon while current.* A purchaser under a writ valid on its face will be protected even though the judgment under which the land was sold should after- wards be reversed for error appearing on the record.-"^ The conveyance from the Sheriff is prima facie evidence that the writ was delivered to him, that he took the lands in e'xecution, and sold them.^ A purchaser is not bound to enquire whether a writ against goods properly returned "nulla bona" before the writ against lands was issued. Neither need he enquire whether the lands were duly advertised or not, as errors and defects in the advertisements, either in the Gazette or local papers, will not 1 18 C. p. U. C. 367. 2 Doe d. Boulton v. Ferguson, 5 Q. B. U. C. 616 ; McDoneU v. McDonell, 9 Q. B. U, C. 269 ; but see Douglas v. Bradford, 3 C. P. U. C. 469. 3 Doe d. Hagerman v.Stroruj, 4 Q, B, U. C. 510. 4 Doe d. Greenshields v. Gtarrow. 6 Q. B. U. C. 237 ; McDonell v. MeDouell, 9 Q. B. U. C. 259 i Gardiner v. Juson, 2 Er. & App. 188. 5 Doe d. Hagenaan v; Strong, 4 Q. B U. C. 610. 6 Doe d. Stafford v. Erown, 3 0. S. 90 ; Mitchell v. Greenwood, 3 C. P. U. C. 465. A purchaser is not estopped by improper recitals in a sheriflE's deed. Roe v. McNeil, 1 U. C. L. J. N. S. 111. ORDINARY CONTENTS OP AN ABSTRACT. 1317 affect the purchaser's title, even if he he one of the execution creditors.^ A sale was duly advertised in a local paper for three months before the 27th August, 1864, and an advertisement in some particulars incorrect was inserted in the Gazette, of the 11th of June, 1864, and four next issues, the errors being corrected in the sixth insertion, all these advertisements were of a sale on the 27th of August, 1864. On the 1st of Octobei; following and in the five next numbers of the Gazette, the sale was advertised for the 12th of November, not as a postponement of the pre- vious sale, but this advertisement was not published in a local paper, and although a notice was put up on the door of the Court House, it was not shown that it was continued there for three months. Under these circumstances the Court of Queen's Bench held^ that these advertisements were not a compliance with the st'atute,^ but that the defects would not affect the purchaser's title. In that case C. J. Draper said, " There is no decision that a Sheriff's sale under execution of land is invalid by reason of erroneous or defective advertisements in the Gazette or the local newspaper ; and the language of the late Chief Justice in Jarvis v. Brooke^ shews that there have been decisions (though unreported) the other way, where lands have been sold in execution, and though we might think the purchaser could have little reason to complain where he was one of the execution creditors, and also the attorney on record, if the proceedings where held nugatory by reason of any irregularity or omission in advertising, we think this no reason for incurring the risk of shaking other titles where the where the purchaser has had no such necessity or opportunity for watching the proceedings. We think we ought not, by a decision given for the first time after so many years, to deter purchasers at Sheriff's sales by holding it to be their duty to examine into every step of the Sheriff's proceedings under a valid writ supported by a valid judgment. The purchaser should satisfy himself that the writ was acted upon while current, as nothing can be done under an execution 1 Doe d. Myers v. Myers, 9 Q. B, U. C. 466. 2 Paterson v. Todd, 24 Q. B. U. C. 296. 3 Con. Stat. U. C, oh. 22, sec. 267. . .^ , „ „ „ 4 11 Q B, U. C. 299 ; and see Janw V. Cayley, 11 Q. B. U. C. 289 ; Doe d. Disset v. McLeod, 3 Q. B U. C. 297. 1318 PROCEEDINGS IN THE MASTER'S OFFICE. which has ceased to be current : unless for the purpose of perfect- ing what has been commenced while it was in force. ^ Insolvency. — In England on investigating titles to estates which have been subject to the bankruptcy laws, it is always usual and requisite shortly to abstract the proceedings under the commission or iiat.^ So in this Province the preliminary proceedings under which the insolveflit's estate became vested in the assignee should be examined. 'Some practitioners require proof of the act of bank- ruptcy, but except in very particular cases this is not usual.^ Under the provisions of the Insolvent Act * the Assignee may sell the real estate of the insolvent, but only after advertising for a period of two months in the same manner as is required for the actual advertisements of sales of real estate by the sheriff in the district where such real estate is situate.^ The period of advertising may be shortened to not less than one month by the creditors, with the approbation of the judge. Where the price offered for any real estate at public sale duly advertised, is in the opinion of the assignee too small, he may withdraw it from the sale, and sell subsequently under such directions as he may receive from the creditors. The purchaser's solicitor must enquire whether the sale was duly advertised, and where the time has been shortened, or the land has been withdrawn from public sale and sold afterwards under the directions of the creditors, whether the order and resolu- tion directing the assignee how to proceed was duly passed by a majority of the creditors present at the meeting. Where the time is shortened it is also necessary to show the approval of the judge. The 48th section of the act gives a sale of real estate by an assignee the same effect as if the sale had been made by a sheriff under a writ of execution. As the title given by a sheriff's sale is the title that was in the execution debtor at the time the 1 Doe d. Greenshields v. Gorrow, 5 Q. B, U. C. 237 ; McDonell v. McDonell, 9 Q. B, U. C. 26 ; GardeTier v. Juson, 2 Er. & Ap. 188, 2 Lee on Abstracts, 163. 3 Lee on Abstracts, 163. 4 32 & 38 Vic. oh. 16, sec. 47. 5 As to advertising by sheriffs see Con. Stat. U. C. ch. 22, sec. 267. FACTS REFERKED TO IN ABSTRACTS. 1319 writ was placed in the sheriff's hands, a purchaser from an assignee under a voluntary assignment obtains the title of the insolvent in the property at the date of the assignment. In the case of a com- pulsory liquidation the assignee conveys the title that the insolvent had at the date when the writ of attachment was placed in the Sheriff's hands.^ Of the Evidence of the Facts Referred to in Abstracts. I. Births, marriages and deaths. — We shall class the rules as to proving these facts under one head, becausf , in general, the same evidence which will prove the one will prove the others. The proof of these facts has been much simplified by the Con. Sta. U. C. eh. 72. The regular proof of the celebration of a marriage is the certi- ficate of the clergyman who performed the ceremony, such certifi- cate being one which he is required by statute^ to give the parties if they desire it ; or the evidence of parties present at the marriage. In case of the absence or death of the witnesses present at the marriage, a certified copy, by the Registrar of the County, of the return made to him by the clergyman who performed the ceremony is made sufficient evidence by the statute.^ Under the Act for Quieting Titles, a marriage must be proved by the production of the certificate. Affidavits will not be received unless the absence of the certificate is satisfactorily accounted for.* In the case of old marriages, where the parties have been long dead, and the place of the marriage is unknown, resort must often be had to the presumptive evidence of general reputation.^ The chief danger attending presumptive evidence of marriage is, that such evidence may be rebutted by either of the parties ; but after the death of both parties, such evidence may be safely relied on.^ The mere entry of a christening, unaccompanied by any evidence showing that the person was young at the time of the christening, does not prove the fact of the birth in a particular parish.' 1 32 & 33 Vic. oh. 16, sec. 29. 2 Con. Stat. U. 0. oh. 72, s»c. 4. 3 Ibid. sec. 7. 4 Re Harris, 2nd Deo. 1869. 6 1 Byth. 168 ; Cod Con. Ev. 285. 6 1 Byth. 168 ; Cov. Con. Ev. 283. 7 Rex V. North Petherton, 2 B. & C. 508 ; and see Rex v. Inhabitants of Trowbridge, 7 B. & C. 262. Rex V. Inhabitants of Imbbenhawe, 6 B. & Ad. 968. Dunn v. Donovan, 3 Hagg. 301. Rex V. Clapham, 4 C & P. 29. 1320 PROCEEDINGS IN THE MASTER'S OFFICE. An entry of a marriage in a book of Fleet marriages cannot be read as a register, not having been compiled under public autho- rity ;i and copies of registers of baptism kept in the Island of Guernsey, or in a foreign chapel, are not admissable in our courts of law as evidence.'^ An entry in the books of the Navy Office-is evidence of the death of a sailor in the king's service.^ A certificate under seal of a minister abroad, as to the fact of a marriage having been solemnized before him, has been ad- mitted but it would not now be allowed.* The production of the letters of administration to a person's effects is not eyen prima facie evidence of his death ;^ nor is the registry of baptism prima facie evidence of the age of the person." Eeputation is, as a general rule, sufficient evidence of marriage ; and where it appears on a trial that the mother was received into society as a respectable woman, under such circumstances im- proper conduct will not be presumed.^ So also, if the reputed husband and wife eloped together for the purpose of being married, and returned as having been married f or if they have joined in a deed, &c., for the purpose of barring the wife's right of dower f or evidence of other circumstance taking place which can only be explained by the relationship of husband and wife subsisting be- tween them, will all, after the deaths of the parties, be admissible to prove the fact of the marriage.^" When a vendor claims as remainder-man after a life estate, direct evidence of the death of the tenant for life will not be neces- 1 Reed V Passer, Peake, N. P. C. 281. Lloyd v. Passingham, Coop. 0. C. 165. 2 Kuet V. Le Mestirier, 1 Cox, C. C. 275 ; Whitehead v. Wyniie, IJ. & W. 483 ; Leader v. Barry, 1 Esp. N. P. C. S32 ; Hex v. Inhabitants of Bathwick ; 2 B. & Ad. 639 ; Beazley v. Beazley, 3 Hag. 689. Doe d. WoUaston v. Barnes, 1 M. & E. 386. 3 Bull. N. P. 249. 4 See Alsop v. Bowtrell, Cro. Jac. 641 ; Willes, 649. 5 Moons V. Bernales, 1 Russ. 301. fi See Huet v. Mesurier, 1 Cox, 275 ; Wiken v. Law, 3 Stark. 63. 7 Doe d. Flemming v. Flemming, 4 Bing. 266 ; 12 J. B. Moo. 600 ; and see Maeneil v. MaeOregor, 1 Dow. N, S. 208. Morres v. UilUr, 1 Bl. 632, S. C. 4 Burr 2067. Read v. Passer, 1 Esp. N. P. C. 813, 363 ; Doug. 174 ; Gowp. 604. Gordoii v. Gordon, 8 Swans. 400. 8 Cook V. Lloyd, Peake Ev. 28. 9 Cooke V Lloyd, Peake Ev. 28, Uarvey v. Harvey, 2 Bla 899. 10 Harvey v. Harvey, 2 Bla. 899. Lord Braybrooke v. Inskip, 8 Ves. 417. Rex v. Inhabitants of Brampton, 10 Ea-st, 282. Ooodi-ight v. Uoss, Cowp. 691, Rex v. Inhaiitants of Bramley, 6 T. E. 330. May v. May, Bull. N. P. 112 ■ 2 Str. 1037. Haydon v. Gmld, 1 Salk. 119. WilMnsmv. Payne. 4 T. E. 468. FACTS REFERRED TO IN ABSTRACTS. 1321 sary ; the evidence of strangers residing in the neighbourhood as to the fact will be sufficient.^ An entry in the registry book by the minister of the parish of the baptism of a child, which had taken place before he became minister, or had any connection with the parish, and of which he received information from the parish clerk, is not admissible in evidence ; nor is the private memorandum of the fact made by the clerk who was present at the baptism.^ The registers of baptisms and burials kept by dissenters in England are not strictly evidence, although they will afford a rea- sonable presumption of the facts which they attest.^ Where the person whose age or legitimacy is to be proved is a peer of the realm, and has taken his seat in the House of Lords, as these facts must have been proved at that time, it is not usual to call for fresh proof of them. Intestacy. — Intestacy must be proved by the letters of ad- ministration which have been granted of the intestate's effects, or if it be stated that no letters have been granted, searches should be made in the proper offices, according to the circumstances, to ascertain the fact : or a partial intestacy may be proved by the production of the will, by which it appears that the property in question was undevised or unaffected. Legitimacy. — Legitimacy must be proved by a certificate of the marriage of the parents, and proof of their being respectively of age at the time of the marriage, or that they married with the consent of their parents or guardians, and that they complied with the provisions of the Marriage Act in force at the date of the marriage. The registry of the christening of the child is generally deemed sufficient evidence of its legitimacy, as it is usual to notice the illegitimacy in the registry,* and illegitimacy will not be pre- sumed on slight grounds.^ 1 Doe V. Deakin, 4 B iV A. 433. As to where equity will act upon the presumed death of persons long unheard of, see Bailey v. Hammond, 7 Ves. 690 ; Dixon v. Dixon, 3 B. C. C. 510 ; Lee v. Willock, 6 Ves, 605 ; Mainuaring v. Baxter, 6 Ves. 458, 2 Doe d. Warren \. Bray, 8 B. & C. 813 ; S, C. 3 M, & E, 428. S Sec. 32; Ex parte Taylor. 1 Jao & W. 483; Whittuck v. Waters, 4 C. & P. 875. 4 May V. May, 2 Stra. 1073 ; and see Rex v. Head, cit. Peak, Ev. 86. 5 See Doa d. Flemming v. Fleinming, 4 Bmg. 266 ; Braybrook v Imkiv, 8 Vea. 417 : Cope v. Cope, 1 M. & E. 269; Con. Sta. U. C. ch. 82 1322 PROCEEDINGS IN THE MASTEB'S OFFICE. Death without issue. — In one ease, Sir W. Grant decreed payment of a legacy, to the persons entitled in remainder, on evi- dence that a female to whose issue it was first given was of the age of fifty-five, and unmarried, she consenting thereto.^ The fact of death without issue is usually proved by an affidavit, made by some near relative of the party ; but the death of a party without issue will be presumed after a hundred years.^ The best proof that a person never was married or had issue, is, that none of the family ever heard of it.^ But where the lessor of the plaintiff claimed by descent, and proved the death of his elder brothers, it was held to be necessary to prove also that they died without issue, as no presumption will be admitted against the person in posses- sion.* Executorship and Administratorship. — Where it is necessary to prove that a person is executor or administrator, the probate of the will, or the letters of administration, must be produced ;^ but the probate act book of the Court, containing an entry of a will being proved, and of probate being granted to the executors named therein, will be admitted as evidence of those persons being the executors, without accounting for the non-production of the pro- bate.^ Where the question was whether letters of administration had been duly granted to a plaintiff, and letters of administration granted by the Bishop of C. to the plaintiff were produced, but it was proved that the intestate, at the time of his decease, had bona notabilia in another diocese in a different province ; and no evi- dence was given as to the residence of the defendant at the death of the intestate ; it was held that the letters of administration were not void, inasmuch as the other diocese in which the intestate had bona notibilia was in a different province.'' Title. — Payment of a small unvaried rent for a long series of years to the lord of the manor, is evidence only of a title to the rent, but not to the land.^ 1 Fraser v. Fraser, 1 Jac. 686 b. 2 Boioe V. Hasland, 1 W. Bla. 404 ; Doe d. Oldham v. Wolley, 8 B. & C. 22 ; Doe d. Banding v. (Jriffin, 16 East. 293. 3 Doe d. Banning t . Griffin, 15 East, 293 ; Doe d. Oldham v. Wolley, 8 B & C. 22. 4 Richards v. Richards, 15 East, 294 n. 6 See Smartle v. Williams, 3 Lev. 387 ; Garrett v Lister, 1 Lev. 26 ; Eldon v. Kediell, 8 East, 182; Davis v. Williams, 13 East, 232 ; Finney v. Finney, 8 B. & C. 335. 6 Cox V. Allingham, Jac. 614. 7 Stokes v. Bate, 5 B. & C. 491. 8 Doe d. Whittoelce v. Johnson, Gow. 173 ; see Woolway v. Bowe, 1 A. & E. 114; Davies v. Lowndes, 1 Bing. N. C. 606 ; Came v. JSieoU, 1 Bing. N. 0. 430. FACTS REFERRED TO IN ABSTRACTS. 1323 Leases are prima facie evidence of a person's seisin, but are not direct or conclusive evidence thereof, without proof of the actual seisin of the lessees, unless the estates created by the leases ajDpear to have expired before the time of living memory.^ Trespasses on a common have been received as proofs of a right to the freehold.^ Possession. — The mere possession of land, if unexplained, is prima facie evidence of an estate in fee-simple ; and the party so in possession may maintain trespass against unlawful invaders.^ It is not necessary that there should always be deeds or wills produced affecting the property in question during the period for which a title is required to be shown. Possession of itself is a sufficient title, and could it always be clearly shown to have been undisturbed, would, no doubt, be the best of titles.* But as it is difficult to show that possession has never been disturbed, a title where no deeds exist, should be rigidly enquired into and strictly proved.^ In Cottrell v. Watkins,^ the Master of the Eolls said, " I am perfectly satisfied that there are good titles in which the origin cannot be shown by any deed or will ; but then you must show something that is satisfactory to the mind of the Court, — that there has been such a long uninterrupted possession, enjoyment and dealing with the property, as to afford a reasonable presump- tion that there is an absolute title in fee simple." In another case'' it was said, " a party seeking to establish a title by possession agoinst a paper title, and thus to usurp the place of the rightful owner, and supplant him, must do so by clear evidence admitting of no reasonable doubt." A title by possession, though less satisfactory than one which can be traced to the patentee from the Crown, is a title which, 1 Clarkson v. Woodkouse, 5 T. R. 412 n. 2 Barry v. Bebbington, 4 T. R. 514 ; and see Stead v. Heaton, ib. 669. 3 4 Taunt. 17 ; Ib. 647 ; 6 Taunt. 321 ; Harper v. Charlesworth, 4 B. & C. 674. 4 Lee on Abs. 26 ; Dart on Vendors, 276. 5 Lee on Abs. 27. 6 1 Beav. 366. 7 Lmv V. Morrison^ 14 Grant, 195. 1324 PROCEEDINGS IN THE MASTER'S OFFICE. under an ordinary contract of purchase, a purchaser is bound to accept if duly verified.^ Lord St. Leonards, in Scott v. Nixon,''' said, " Can this Court compel a purchaser to take a title depending upon • parol evidence of adverse possession, under the new statute ? Under the old statute it was long undecided whether a purchaser could be forced to take such a title, but ultimately it was so determined, and I apprehend that it was quite settled, that a clear title, and just as good as any other title, might be acquired by adverse possession, and that a purchaser would be bound to take such a title." In the subsequent case of Tuthill v. Rogers,^ his Lordship said, " Upon a former occasion I was called on to decide whether this Court would enforce, as against a purchaser, a title depending on non-claim, between subject and subject ; and I was of opinion that it did not matter how the title was acquired, if it were a good one. * * * I held that the Court was bound to force the title on the purchaser, and that decision has been acquiesced in." To force such a title on a purchaser, it is not sufficient merely to show possession by the vendor for twenty years. If the vendor relies on a possession of twenty years as giving him a good title, he must show who the person is, that but for this posssesion would be the owner in fee simple in possession ; and that twenty years, possession barred his right.* This it would not do, for example, if, when the twenty years began to run, such owner was an infant, under coverture, an idiot, lunatic, or of unsound mind. In that case,^ " such person, or the person claiming through him, may, notwithstanding the period of twenty years hereinbefore limited shall have expired, make an en- try or distress, or bring an action to recover such land or rent, at any time within ten years next after the time at which the person to whom such right shall have first accrued, as aforesaid, shall 1 Dart on Vendors, 369 ; Sug. V. & P. 389 ; Darby on Limitatlon.-i, 389 ; Byde v. Dallaway, 6 Jur. 119. 2 3 Dru. & War. 406. 3 IJ. & L. 72. 4 As to the evidence in such a case and the enquiries which should be made, for the person whose title is alleged to be barred, see Re CaverhiU, 8 U. G. L. J, N. S. 60. 5 Con, Stat. U. C. ch. 88, sec. 45. FACTS REFERRED TO TN ABSTRACTS. 1325 have ceased to be under any such disability, or shall have died (which shall have first happened)." The statute just quoted, in its terms extended to persons " absent from Upper Canada ;" but by a more recent act,^ " any plaintiff or person in any action, suit or proceeding, either at law or in equity, who has been or is resident without or absent from Upper Canada, shall have no greater or longer period of time to bring, commence or prosecute any such suit, action or proceeding, by reason of such non-residence in, or absence from Upper Canada, than if such plaintiff or person had been or were resident in Upper Canada, when the cause of such action, suit or proceeding, first accrued ; and all and every exception or distinction in any law or statute relating to the limitation of actions now in force in Upper Canada, in favor of any plaintiff or person resident without or absent from Upper Canada, by whatever terms or words such residence without or absence from Upper Canada, is stated or described in such law or statute, shall be and the same are hereby abolished and re- pealed." In Low V. Morrison,^ it was argued by counsel, that by this act, only the remedy, and not the right was barred ; and that if the party could assert his right without action, he might yet do so unaffected by the statute. But VanKoughnet, C, in giving judg- ment, said, " I leaned much to that view until I came to consider the 16th section of the Consolidated Statute,^ which enacts that at the determination of the period limited by this act, to any person for bringing any action or suit, the right and title of such person to the land, for the recovery of which such action might have been brought within such period, shall be extinguished. " Beading the 25th Vic. as abolishing the extended periqd for bringing an action formerly given to absentees, and as limiting it to twenty years, I must apply the 16th section of the Consolidated Statute, and hold that after the lapse of twenty years, the right and the title of the absentees are extinguished. This law, if harsh, and all ex post facto laws are more or less unjust, the Legislature 1 25 Vic. ch 20, sec. 1. 2 14 Grant, 192. 3 Con. Stat. U. 0. ch. 88. 1326 PROCEEDINGS IN THE MASTER'S OFFICE. is responsible for. THey, however, gave absentees a year within which to avail themselves of an existing disability — whether or not this was sufficient to save existing rights is not for me to say — I must adjudicate that the right and title of the absentee are gone equally with those of the resident, where there has been a posses- sion for twenty years adverse to the right or title." It must also be borne in mind, that the possession for twenty years will bar only the party entitled to the immediate possession of the land. It will not operate to defeat the right of a person en- titled in reversion, until the expiry of twenty years from the time when the particular estate determined, and the reversioner acquired the right of entry.^ The first section of the statute,^ provides, that no person shall make an entry or distress, to bring an action to recover any land or rent, but within twenty years after the time at which the right to make such entry or distress accrued ; and the second section, sub- section four, says, that in case of future estates, " such right of entry shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession." The effect of the statute must, therefore, always be determined with reference to the actual state of the title when the time began to run, so that if the fee should then have been parceled out in particular estates and remainders, the title acquired by means of the statute would, for the most part, be commensurate only with the estates of those persons whose rights may have from time to time have accrued.' The state of the title when the time begins to run is what has to be considered, for when the statute has once begun to run, a party cannot, by settling his estate, raise up new rights and give new claims to persons deriving under the settlement.* And Mr. Hayes lays it down^ as undoubted, that " the effect of the statute must always be determined with reference to the actual state of the title when time begins to run, and that when the time has once com- 1 1 Hayes Conv. 253 ; Darby on Limitations, 390. 2 Con, Stat. U. 0. ch. 88. 3 1 Hayes Conv. 257. i Stackpoole v. Stackpoole, i Don. & War. 347. 5 1 Hayes Conv. 257. FACTS REFERRED TO IN ABSTRACTS. 1327 menced running, no subsequent alteration in the title will postpone the bar." The condition of the land itself at the time possession was taken must also be shown, because if it was in a state of nature, forty years' possession may be necessary to constitute a bar. By the 27 & 28 Vic. ch. 20, sec. 3, it is enacted that, " In the case of lands granted by the Crown of which the grantee, his heirs or assigns, by themselves, their servants or agents, have not taken actual possession by residing upon or cultivating some portion thoreof, and in case some other person not claiming to hold under such grantee has been in possession of such land, such possession having been taken while the land was in a state of nature, then unless it can be shown that such grantee or such person claiming under him, while entitled to the lands had knowledge of the same being in the actual possession of such other person, the lapse-of twenty years shall not bar the right of such grantee or any person claiming under him to bring an action for the recovery of such land, but the right to bring such action shall be deemed to have accrued from the time that such knowledge was obtained ; provided always, that no such action shall be brought or entry made after forty years from the time such possession was taken as aforesaid."^ The limitation of time to forty years was added by the act above quoted, the original act^ not having expressed any limit to the time within which the action might be brought, except twenty years after acquiring knowledge of the .possession. To give a good title by possession, it must be shown to have been continuous f a person who takes possession of land without title has, while his possession continues, and before the statutory period has expired, a transmissible and inheritable interest in the property. That interest may, it is true, be defeated at any moment by the entry of the rightful owner, but if he is succeeded in the possession by one who claims through him, and who holds until the expiration of the statutory period, such successor has then as 1 See Re Linet, 3 Chan. Cham. E 230. 2 4 Wm. IV. ch. 1, sec. 17 ; Con. Stat. U. C. ch. 88, sec. 3. 3 young V. Elliott, 25 Q. B. U. C. 333 ; Se Bell, 3 Chan. Cham. R. 264. 1328 PROCEEDINGS IN THE MASTER'S OFFICE. good a right to the possession as if he had himself occupied for the whole period.^ But if a series of trespassers, adverse to one another, and to the rightful owner, take and keep possession of an estate in succession for various periods, each less than twenty years, but exceeding in the whole twenty years, in whose favour is the right to be declared ? The right view seems to be, that the first of such trespassers, has, at the end of twenty years from his entry a right to the possession. Possession heing prima facie evidence of seisin in fee,^ the mere fact of priority of possession is sufficient proof of title on which a man can maintain ejectment against any person who was let into possession by him, or who came in as a wrong-doer, while, there- fore, the trespasser who is in possession at the time when the twenty years expires, can maintain his possession against the rightful owner, because his title is extinguished, yet he is liable to be ejected by any one who had possession of the property prior to himself, but within twenty year's, though without any better title.^ In this country the question of title by possession, as against a paper title, often presents peculiar features, and is not always one of easy solution.* Thus the question has sometimes arisen'whether the occupation of part of a lot of land will give title by possession to the whole. The present current of authority seems to be, that suc'h a possession will confer title only to the part actually occu- pied. This was the decision of the Court of Queen's Bench in Hunter V. Fair,^ when C. J. Draper, in delivering judgment, said, " If a man has title to a lot of land, though he has never entered into the actual possession of it, the law deems him to be in possession until some one else enters adversely to him, not recognizing his title, and so a fortiori if he enters and occupies part. If without title he enters on a lot which is in a state of nature, clearing and fencing a few acres only, leaving the rest open and unimproved, the actual 1 Asher v. Whitlock, L. E. 1 Q. B. 1 ; Eee/ev. Kirby, 6 Ir. C. L. R. 291. 2 Darby on Limitations, 390. 3 Doe d. WiHis t. Biretavwre, 9 A. & E. 662 ; Wldtloclc v. Asher, L. E. 1 Q. B. 1 ; Gromne v Blake, 8 Ir. C. L. E. 432. 4 Dundas v. Johnston, 24 Q. B, U. 0. 547. 5 23 Q. B. U. C. 327 ; and seeZ>oe d. McDonell v. Rattray, 7 Q. B. U. C. 321. FACTS REFERRED TO IN ABSTRACTS. 1329 possession of the part will not alone, in my opinion, draw to it the possession of the other part." In McMaster v. Morrison;^ V. C. Mowat, hefore whom the case was heard, followed the decisions at law, and the plaintiff having failed to prove that the testator exercised any acts of ownership on any portion of the lot except what he cleared, or that he was more than a mere trespasser in respect of even that portion, the learned Vice-Chancellor said, " under these circumstances, he cannot, according to the authorities, be held to have been constructively in possession of any part of the lot of which he was not in actual pos- session." The same point was afterwards decided in the same way by the Chancellor in Low v. Morrison,^ and also by Vice-Chancellor Spragge in Wishart v. Cook.^ Although in McMaster v. Morrison, V. C. Mowat seems to have founded his judgment upon the fact that no proof was given that the party in possession was more than a mere trespasser, yet it is probable, that following as he did the decisions at law, the learned Vice-Chancellor would have come to the same conclusion, even had it been shown that the party was in possession under an apparent title, or had some show of right. In Dundas v. Johnston* it is true the language used refers solelj' to occupation without any title; Draper, C. J., saying, "When, therefore, a person without any title, or without any real or bona fide claim of title, (though erroneous) entered upon any such lot, clearing and fencing only a portion thereof, I do not understand upon what principle this wrong doer can be deemed to have taken, and to be in possession of the whole of such lot : — for example, of 200 acres, if the lot was originally surveyed to contain that quan- tity, or of the half or quarter lot, if such had been the division of the original survey ; or that his cultivation and fencing of a small part puts him into possession of as much (be it the whole or a fractional part of a lot) as the proprietor of the part trespassed upon owns. In cases of what is well understood in the country by the term * squatters,' I have always thought that as against the real owner 1 14 Grant, 138. 2 14 Grant, 192. 3 15 Grant 237. 4 24 Q. a U. C, 650. 6o 1330 PROCEEDINGS IN THE MASTER'S OFFICE. they acquire title by twenty years' occupation of no more land than they actually have occupied, or at least over which they have exer- cised continuous and open notorious acts of ownership, and not mere desultory acts of trespass in respect of which the true owner could not maintain ejectment against the trespasser as the person in possession." In the subsequent case of Young v. Elliott,''- the Court came to the same conclusion as in Dtcndas v. Johnston. As the law now stands, it would, therefere, seem that a party in possession without a paper title, acquires title only to that part of the lot actually occupied by him. Perhaps fuller and further argument may lead to a different conclusion being arrived at. In the case of a person taking possession of land already cleared and cultivated, when he confines his occupation to a part only of the lot, cultivating that and that only, and allowing the remainder to lie waste, it may be reasonable to assume that such an occu- pation will confer title only to the part actually occupied. But in the case of wild lands, where, unless a man goes to great expense in the way of fencing to enclose the whole lot, his visible posession and exercise of acts of ownership must be confined to the portion he may clear up and bring under cultivation, it would seem more reasonable to treat such occupation as possession of the whole lot. Indeed, in Dundas v. Johngton,'^ the Court of Queen's Bench said, " It must depend upon the circumstances of each case, whether the jury may not, as against the person having the legal title, properly infer the posession of the whole lot covered by such a title, in favour of an actual occupant, though his occupation by acts of ownership, such as clearing, fencing and cultivating, has been limited to a portion less than the whole." In a recent case,^ C. J. Hagarty, in delivering judgment, said, " We are not prepared to hold that unenclosed wood land in this country can never be the subject of a twenty years' possession. If 1 25 Q. B. U. 0. 334. 2 24 Q. B. U. C. 660 ; and see Daois v. Henderson, 29 CJ. B. U. C. 344. 3 Heyland v. Scott, 19 C. P. V. C. 172 ; ami see also MxUholland. v. ConlcUn, 22 C. P. U. C. 372. FACTS KEFEEEED TO IN ABSTEACTS. 1331 fencing and cultivation can alone constitute a possession, then title to open wood land can never be acquired against the true owner." Sworn copies of assessments to the land tax will not be conclu- sive evidence of possession.^ Heirship. — Where a title is derived through an heir-at-law, it will not only be necessary to prove that the heir was the legiti- mate son, but also the eldest son of his father ; or if the heir-at- law be a daughter, it will be necessary to prove that there was no other child. These facts will be best proved by affidavits of per- sons who are intimately acquainted with the family. Bachelorhood. — Where, if the vendor or mortgagor were married, his wife would be entitled to dower, evidence is usually required of his being a bachelor, and may, it would seem, be in- sisted on :^ and wherever in an abstract, the right to dower would attach, a similar enquiry should be made as to the fact of the marriage ; and it should be shown, if possible, that the person was not married ; or if married, left no widow. If no direct proof can be given of this, the will of the person will be collateral evidence, if it make no mention of a wife, or if he died intestate, it should be shown to whom letters of administration were granted. Identity. — It will frequently be necessary not only to produce registers of the births, mar/iages, or deaths of the persons men- tioned in the abstract, but also to prove the identity with the per- sons mentioned in those registers. In such cases, an affidavit of the identity of the party must be made by some competent person. Payment of Money into Court. — When money is to be paid into court, and it is incumbent that it should be seen that it has been so applied, and there is no subsequent order of the court re- cognizing the payment, the fact of the payment should be stated from an office copy of the Accountant-General's certificate.^ 14. Payment of Legacies. — The production of a release of a legacy is evidence of the payment of debts, unless a special pro- 1 OngUy v. Chambers, 1 Bing. 483 ; Doe d. Stansbxiry v.Arkwright, 2 A. & E. 132 ; 5 C. & P. 57r., S. C 2 See Power v. Shiel, 1 Breat. 48. 3 1 Prest. Ahs. 190. 1332 PROCEEDINGS IN THE MASTEE'S OFFICE. viso be inserted in the release for abatement, in case any future demand be substantiated. Of the Miscellaneous Evidences of Abstracts of Title. Public Books. — Where a book is of a public nature, and ad- missible in evidence, an examined copy will be equally admissible. Thus, examined copies of entries in the Bank books, &c., will be admitted as evidence.^ Parliamentary Surveys. — Parliamentary surveys are deserving of great consideration, particularly if they are executed with accu- racy.^ In ascertaining the meaning and effect of a charter, contempor- aneous documents, proceedings in causes relating to it, and parol testimony, may be resorted to in order to explain its construction, but not to contradict it.^ Pedigrees. — Pedigrees made at a former period in the absence of other evidence, will prove the facts mentioned in them.* Pedi- grees are, however, generally proved by the proper certificates of the births, marriages, and burials of the persons mentioned in them ; but in default of these, there are other modes of proving them. Thus, the ancient books of the Herald's Office, and their visitation books of counties, will be admitted as evidence of a pedigree.^ Descents in pedigrees are also frequently proved by certificates of marriage, entries in family bibles, engravings on tomb-stones, or other similar evidence, or by the affidavits of persons long ac- quainted with the family.^ So also a verdict, or a statement in a bill in Chancery will be admissible to prove a pedigree.^ 1 Marth v. Colnet, 2 Esp. N. P. C. 065 : Breton v. Coape, Peake, N. P. C. 30 ; Auriol v. Smith, 18 Ves. 198. 204; 2 Doug. 672, n(3); Rex v. King.et. al. 2 T. R. 234; Tuckey v. Flower, Comb 137 : Rex v,Hai7ies, Comb. 337 ; J)oed. Churchwardens of Croydon v. Cook, 5 E-p. N. P. C. 221. 2 Attorney-General v. Ilotham, Turn. 209; but see Atkiiisv. Drake, McClell,' & Yo. 213, where it is laid down that evidence afforded by ecclesiastical and parliamentary surveys, either for or against a modus, is entitled to very little weipht. 3 The Governor of the Free School at Luton v. Scarlet and Smith, 2 Yo. & Jer. 330. 4 Cowp. 494 ; 10 East, 120, Berkley Peerage case, 4 Camp, 401 ; 11 East, 504. 5 Eiiig d. Lord Thamt v. Foster, Jon. 224; Pitton v. Walter, 1 Str. 181 ■ Matthews v P must depend, in a great measure, upon the circumstances of each particular case. If a paper be of considerable value, or if there be reason to suspect that the party not producing it, has a strong inter- est which would induce him to withhold it, a very strict examination would properly be required ; but if a paper be useless, and the party could not have any interest in keeping it back, a much less strict search would be necessary to let in secondary evidence of its con- tents.* The point to guard against in this respect is a pledge or deposit of the original document.^ Parties searching for a missing deed should remember that the person entitled to the first immediate estate of freehold is entitled to retain the title deeds as against those entitled in remainder or reversion;^ and that the deeds are pre- sumed to follow the title and go into the custody of those entitled.'^ When the lands descend to real representatives, they, and not the personal representatives, are entitled to the deeds, though for greater certainty a search with the latter would be advisable, especially in the case of a missing mortgage. 1 Cov. Con. Et. 312. 2 Doe d. Padwiclc v. Whiteomh, 6 Ex. 600 , 4 H. L. 431 ; Ee Bell, 3 Chan. Cham. E. 241. 3 Gordon v. McPhail, 81 Q JB. U. 0. 484. 4 Cot). Con. Ev. 312. 6 Cov. Con. Ev. 313. 6 Dixon on Title Deeds, 35 ; Wehh y. Lymington, 1 Eden, 8. 7 Leak's Real Prop. Stat. 427. 1336 PROCEEDINGS IN THE MASTER'S OFFICE. The presumption that the deeds follow the title may be destroyed as for instance by the fact that they covered other lands retained by the vendor,! or that some prior owner on sale of a portion gave a covenant to produce them. Where the document, if in existence, should be in the possession of the party who desires to give secondary evidence of its contents, the proper course is that he should search with a vdtness, and that the search should be so conducted, and in such places, as to afford a reasonable ground for concluding that it was made bona fide, both as regards the witness and the party, by giving and using all possi- ble facilities to make it effectual.^ Where sufficient evidence has been given of destruction of the origi- nal document, or of search and loss to let in secondary evidence, memorials afford, in cases of conveyance, a frequent means of fur- nishing such evidence, and are admissible or not according to cir- cumstances. A memorial signed by a grantor, who was not shown to have had more than mere constructive possession by force of the conveyance to him, has been held to be evidence not merely against the grantor, and all claiming under or in privity with him, but also against third persons not appearing to have any title whatever except a bare pos- session of insufficient duration to confer a title, as being a statement and act by the party in possession against his own interest as re- puted owner of the land.^ Though the weight of authority is in favor of taking a memorial executed by a grantor as good secondary evidence even against strangers, without corroborative evidence, it is not clear that this would be so if at the time of the conveyance sought to be proved son;ie one were in possession adversely to the grantor. Many of the principles whereon a memorial signed by a grantor is admissible as evidence of a conveyance by him, do not apply where it is executed by a grantee. 1 Yeo. V. Field, 2 T. R. 708. 2 Bratt V. Lee, 7 0. P. U. C. 280. 8 Russell V. Eraser, 16 C. P. U. C. 378 ; but see HaybaU v. Shepherd, 25 Q. B. U. C. 636. OF SECONDARY EVIDENCE. 1337 In the latter case it is a statement, not against, but in support of interest, and by a person not then in possession. But such a memo- rial, if coupled with other facts confirmatory of the instrument set out in it, is admissible as parcel of the evidence towards proof A memorial executed by a grantee through whom a person claims coupled with possession taken under the instrument to which it re- lates, and enjoyed for a length of time in a mode such as to preclude the possibility of the instrument being other than as set forth by the memorial, is good evidence even against strangers, especially if ac- companied by other corroborative facts, but the mere memorial would be evidence only against those claiming under or in privity with the grantee.^ There seems, however, some danger in allowing mere length of possession and dealing with the property to be sufficient corrobo- rative evidence on which to admit a memorial executed by a grantee as evidence of a conveyance in fee simple absolute. Until the recent Registry Act it was not necessary to set out in a memo- rial the estate or interest conveyed, and in the case of a conveyance for life, a fraudulent grantee might execute a memorial referring to an instrument granting a fee simple absolute. He might then after destroying the deed, convey in fee, and the property might pass through various hands during his lifetime, and there might thus be possession and dealing with the property for fifty years, consistent with the right of possession and with the conveyance in fee, as set set out in the memorial. The persons entitled in reversion are not supposed to enquire until their right accrues, and when it does they have to contend against evidence offered of the fraudulent memorial and the posses- sion and dealing said to be consistent with it. The cases when examined, hardly go the length of holding that mere length of possession though for a considerable time under an alleged grant in fee coupled with a memorial executed by the grantee, is sufficient evidence. There are either other facts which lead to the belief of, or are confirmatory of the instrument ; or, if 1 Qoygh V. MaBride, 10 C P. U. C. 166 ; Fields v. Livingstone, 17 C. P. V. C. 15 ; and aee Ke Biggins, 19 Grant, 308 ; Sadlier v. Briggs, 10 Ir. Eq. 632 ; 4 H. L. 460 ; Peyton v. MoDermott, 1 D. & W. 198 ; Soully v. Scully, 10 Ir. Hq. 657. 1338 PROCEEDINGS IN THE MASTER'S OFFICE. mere length of possession alone has been considered sufficient, it has been in cases other than on a question of whether the conveyance ■was in a fee simple absolute to the grantee, and where the posses- sion had was quite inconsistent with the instrument being otherwise than as set out in the memorial. As between vendor and purchaser, and on proceedings under the Act for Quieting Titles, stricter evidence is required than in eject- ment ; it is necessary where a party relies on memorials as proof of missing deeds, to show that the deeds contained no trust, limitation condition, exception or qualification not mentioned in the memorial. The execution of a memorial which is receivable in evidence need not be proved when more than thirty years old.^ Where a foundation is laid by proper search or otherwise for the admission of the contents of a memorial as evidence, and when re- quisite, sufficient corroborative circumstances or privity shown, a memorial, though not thirty years old, produced from the Registry Office need not be proved ; and a copy certified by the Registrar as such is also admissible without proof of the execution of the original or of the instrument to which the originah'relates.^ If a petitioner, under the Act of Quieting Titles, intends to use certified copies of memorials as evidence, he must also procure and produce certified copies of the affidavits of execution. With respect to copies generally, it is to be observed that a copy of a copy is not evidence, for the Courts require the best evidence the nature of the thing admits, and the further off" anything lies from the first original truth, the weaker must be the evidence ; besides there must be a chasm in proof ; for it cannot appear that the first was a true copy.^ Voluntary Affidavits. — Voluntary affidavits are frequently re- sorted to, and required by conveyancers under a choice of difficul- ties, in support of facts and averments, when more direct proof can- not be obtained.* These documents, though possessing no legal 1 Doe Macklem v. TumbuU, 6 Q. B. U. C 119. 2 Harmn v. HaUss, 6 C. P. U. C. 211 ; Lynch v. O'Bara, 6 C. P. U. C. 267 ; Doe d. Prince v. Girty, 9 Q. B. U. 0. 41. i> , . a, 3 Cov. Con. Ev. 313. 4 Cov. Con. Ev. 319.' OF SECONDARY EVIDENCE. 1339 validity, are often all the evidence that can be adduced ; and as it were by general consent the profession adopt them as evidence upon titles.' As legal evidence, such affidavits are clearly inadmissible ; they are purely voluntary, and not being made in Court in any cause, they will not sustain an action for perjury ; then they are made expressly to support some point, and are, therefore, on the face of them not of that pure and disinterested character which is expected from un- exceptionable evidence ; and they frequently contain nothing more than hearsay evidence : yet the conveyancer admits this testimony as corroborative evidence of general reputation and concurrent pos- session.^ It should always appear on the face of the affidavit that the de- ponent is hkely to be acquainted with the facts, and reasonable grounds for his belief should be stated.^ Recitals. — Recitals or statements contained in acts of Parliament and in deeds, decrees, and other instruments, furnish very important secondary evidence. A recital is rather an interested witness, for it is seldom if ever made with the knowledge and concurrence of parties having an adverse title ; it is a tale told by the party whose interest it is to support the deed, and, therefore, is not of that unprejudiced character which other evidence preserved without reference to any particular transaction is impressed with.* The general rule acted upon by conveyancers has been, that recitals and statements contained in deeds thirty years old or upwards may be considered as good secondary evidence, and where the facts recited are not very important, a purchaser may rest satisfied with such recitals without further evidence, even if con- tained in deeds of more recent date.^ 1 Lee on Abs. 216 ; Hubback on Sue. 66. 2 As to evidence of general reputation in question of title, see Morewood v. Wood, li East, 327 • Dunraven v. Llewellyn. 16 Q. B. 791 ; Weeks v. Spark, 1 M. & S. 679 ; Rex v. Antrohns, 2 A & E. 788 ; Pirn v. Curell, 16 M. & W. 234 ; Williams v. Morgan, 15 Q. B. 782 ; Doc d. Didsbury v. Thomas, 14 East, 323 ; Jie Bell, 3 Chan. Cham. K. 247. 3 Cov. Con. Ev. 319 ; Re Harding, 3 Chan. Chim. E. 233. i Cov. Con. Ev. 298 ; Lee on Abs. 364. 5 Lee on Abs. 360 ; Cov. Con. Ev. 298. 1340 PROCEEDINGS IN THE MASTER'S OFFICE. Among the recitals deemed of minor importance, may be men- tioned such as relate to facts corroborated in part by other evidence, recitals of deaths, burials, marriages, births or baptisms ; the number of children in a family, the failure of issue, or as to one person hav- ing survived another, or that one was the executor or administrator of another, and as to the occupancy, identity or boundary of lands.^ Where the facts are very important, a purchaser should not rely on the recitals even of an old deed ; especiallyifbetter proof aliunde can be obtained. Thus it has been decided, that it is not sufficient to prove an important descent in a pedigree, for the vendor to set forth deeds which recite the pedigree, although the deeds are upwards of thirty years old.^ Recitals as to the contents of deeds are more to be depended •upon, than recitals as to pedigrees. Parties may themselves, with- out any fraudulent intention, mistake a pedigree, the latter, there- fore, require to be more narrowly searched into.^ A deed can seldom be incorrectly recited, unless through fraud or otherwise intentionally, much, therefore, depends on the nature of the recital, as well as its antiquity.* The value of the statements and recitals respecting pedigrees in old deeds, depends entirely on the circumstance whether possession has accompanied the deed containing the recital. If the deed itself be not sanctioned by the acquiescence of parties, privies and strangers, the recitals in it are not entitled to much weight.^ Never- theless if there be no apparent motive for misrepresentation, and the recital is borne out by forty years' undisturbed possession, the conveyancers usually give credence to the statement.* Recitals often have the eifect of controlling the operation of a deed, as more clearly expressing the intention of the parties. But recitals cannot be allowed to restrain the operation of words in a deed where those words are of plain as well as known import. Recitals in deeds cannot alone be taken as evidence against strangers or others not parties to the deed containing such recitals. 1 Lee on Abs. 360, 361 : Cov. Con. Ev. 299. 2 Slaney v. Wade, 1 M. & Cr. 358 ; Fort v. Clark, 1 Rubs. 601 ; Arum, 12 Mod. 384. 3 tee on Abs. 361 ; Can. Con. Ev. 300. 4 niid. 5 Cos. Con. Ev. 300. 6 Ibid, 299, 301. OF SECONDARY EVIDENCE. 1341 If it "was otherwise, nothing would be easier than to insert recitals as the foundation of a good prior title ; thus a man might in a post- nuptial marriage settlement insert a recital of ante-nuptial articles which never existed, and so defraud his creditors contrary to the 13 Eliz. ch. 5. Recitals are always taken as admissions of those who are parties to the deed and interested in the property. Thus^ where a recital occurred in a deed of settlement that the owner of the property had given a bond to another party, which bond was not produced as the execution of it could not be proved, the recital was held to be evidence of the bond having been executed.^ But although a recital may be evidence as against parties execut- ing the deed containing the recital of the prior instrument, yet there ought to be some further proof to establish entirely the execution and validity of the recited deed f a bare recital of a deed, it has been said, is not evidence ; but where there are other facts, (such as entries in a solicitor's books of charges for procuring the execution of the deed), which corroborate the recitals,* or where there is other evidence that the instrument recited existed, then the recital may be taken not only as evidence of the existence, but (as agaiust the parties to the deed containing the recital), as evidence of the execu- tion of the recited instrument.^ It appears, therefore, that although recitals may be good secondary evidence of deeds which are shown to have existed but which have been lost or destroyed, yet the rule cannot be extended to those cases in which nothing is known as to the deeds to which the recitals relate.* Recitals in a deed prepared by direction of a Court of Equity and settled by a Judge or a Master, are more to be relied on than other deeds, in consequence of the strictness with which facts and state- ments are required to be verified in the Master's office.^ 1 Battersbce v. Farritigdon, 1 Swanat. 113. 2 Annatidale v. Harris, 2 P. "WmH. 434 3 Ford V. Lord Cfrey, 6 Mod. 45. 4 SHpwith V. Shirley, 11 Vea. 64. 5 Burnet v. Lynch, 6 B. & C. 601. 6 Lee on Abs. 363. 7 Lee on Abs. 363. See Roe v. McNeil, I U. C. L. J. N. S. Ill, as to the effect of improper recitals in a Slierifl's deed. 1342 PROCEEDINGS IN THE MASTER'S OFFICE. Notwithstanding the fact that recitals afford such evidence of prior deeds, yet in regard to the consequences of that evidence, or the notice given by them to purchasers, it is considered that such notice does not entitle a purchaser to demand an abstract of the deeds themselves, although it may entitle him to require the inspec- tion of such recited deeds, if in the custody or power of the vendor, when they bear strongly upon the title.^ Presumptions. — In the absence of all direct evidence, presump- tion may, after a great lapse of time, aided by other corroborative facts, such as uninterrupted enjoyment for a length of time and acquiescence, or apparent acquiescence, of those whose claims are adverse, be relied on, particularly where the importance of the fact is inconsiderable.^ Thus possession is prvma facie evidence of property, but the landlord may prove that the occupier is his tenant by shewing a payment of rent or other acknowledgment.^ In the case of births and marriages many facts may be adduced in support of the presumption of one from circumstances in con- nection with the other ; for instance, the birth or baptism of a child being proved, gives much weight to the presumption of a marriage between the parties whose child it is stated to be. Proof of a marriage prior to'the time of the birth of a child affords grounds for presuming that such child is the issue of the parties so married, if the mother be known ; and where a birth is proved a short time only after the marriage, the possibility that it is the eldest child of that marriage amounts almost to certainty.* In regard to marriages there are many grounds for raising a presumption of marriage in the absence of direct evidence of the fact. The parties having always lived together as man and wife, and having in common reputation been received by their friends and passed as such ; children being described as the children of A- and B. his wife ; their so styling themselves in wills ; and other matters less important than these, if ancient in date, have been allowed to raise the presumption of marriage in common cases. ^ 1 Lee on Abs. 364. 2 Lee on Aba. 464. 3 Cov. Con. Ev. 320. 4 Lee on Absi 464. 5 Lee on Abs. 466 ; Balcer v. Wilson, s Orant, 378 ; and soc Doe d. Wheeler v. MeWillimns, 2 U. C. Q. B. 77 ; 3 U. 0. Q. B. 166. OF SECONDARY EVIDENCE. 1343 It is found by common experience to be a necessary presump- tion that a person of the same name and conveying the same interest as that limited to a person previously mentioned, is the same person. Unless there is a great interval between any two deeds, evidence of identity is seldom called for ; if such a chasm exist it may be proper to require evidence of the occupation in the interval. But where a- deed was executed in a foreign country, during the progress of an investigation for quieting a title, for the purpose of removing a blot on the title, satisfactory evidence of identity and execution were required.^ The dangers to which accepting such a deed on its production without evidence of its validity, would expose absent parties are obvious. The law never makes a presumption that acts are wrongly done, or that fraud has been committed, unless there is good ground for believing such to be the fact ; presumptions, if made where nothing is known, are always that things were rightly done, or in favour of order and regularity. ^ In the absence of all proof or knowledge of facts there can be no presumption except what the law itself points out. In some cases an inference may be made from nothing being known to the contrary for a series of years. In any case of alleged quiet possession or of no claims made, there can be no presumption where there is no knowledge, except such as can be drawn from acquiescence, or apparent asquiesence, in the title of the party in possession ; thus where no adyerse claim has been heard of for a length of time, quiet possession may be inferred or presumed.^ It is the practice of Coui-ts of Law, where a person has not been heard of for a number of years, to presume his death after seven years, but a seven years' absence without tidings is not sufficient to raise this presumption with conveyancers* Every case must depend on its own particular circumstances, and no certain period can be fixed which will raise the presumption. It has been ad- mitted by Courts of Equity affer twenty years, in one case aftor 1 Jie Hay, 29 Jan. 1869. 2 Lee on Abs. 465 ; Cov. Con. Ev. 819. 3 Lee on Abs. 466. 4 Dart on Vendors, 315. 1344 PROCEEDINGS IN THE MASTER'S OFFICE. fourteen years, but in a recent case after absence and silence of nineteen years, the Court refused to presume death where the circumstances rendered it improbable that the party, if alive, would have communicated with his friends.^ Where a man who was absent in British Columbia for several years, corresponding regularly with his family, wrote that he intended leaving about a certain day to return home, and was never afterwards heard from, evi- dence having been given that about the time mentioned in his letter he was seen at San Francisco to go on board the steamer Golden Gate, which was on the same voyage lost off the Coast of Mexico, his name appearing in the list of passengers returned to the company with the word " lost " written after it, and diligent enquiry having been made for him without success, death was, in a preceding under the act for Quieting Titles, presumed after nine years.^ Scarcely any length of time will be sufficient to compel an unwilling purchaser to take a title depending on such a pre- sumption of death, unless made with reference to the age of the party said to be dead ; and if the party whose death is asserted was, when last heard of, very young, the period must be that beyond which human life does not commonly extend.^ If the presumption to be made is, death without issue, it is doubtful if a court would as against a purchaser ever, make the presumption within the period of sixty years.* Copies, Drafts, and Abstracts. — When a deed or will has been lost, and diUgent search is proved to have been made in the proper places of the proper persons,^ and the subsequent enjoyment has been consistent with its alleged contents, a counterpart, ^ an ancient copy,^ and a fortiori, an old attested copy,* or a copy enrolled for safe custody,^ the rough draft of a release, especially if the original bai'gain and sale for a year be forthcoming.i" an old abstract,^^ parti- cularly when it appears to have been pursued by professional per- 1 Bowden v, Henderson, 2 Sm. & G. 360. 2 Re Harris, 1872. 3 Lee on Abs. 466. 4 Ibid, 467. 6 See 2 Vef. 90. As to what will be held to be reasonable diligence in such a case, see Bex v. East Farleigh, 6 Dow. & Ry. 147 : Macdougal v. Hogarth, 8 Bli. 41 ; Bligh v. Wellesley, 1 Car & Pay. 400. The decree of diligence to be used in searching for a deed must depend on the im- portance of the deed, and the particular circumstances of each case. Gvily v. Bishop o^ Exeter, 4 Bing. 290 ; and see Lorton v. Gore, 1 Dow. N. S. 190 ; Rex v. Inhabitants of Stourbridge, 8 B. & C. 96 ; 2 Man. & Ey. 43. 6 Anon. 6 Mod. 225 : 1 Lei: 25. 7 Lady Orijfin v. Boynton, Nels. 82 ; Medlieot v. Joyner, 1 Mod. 4 ; 2 Atk. 72. 8 Harvey v. Phillips, 2 Atk. 641. 9 H t's case, 11 Mod. 109 ; Combes v. Speneer, 3 Vern. 471 . 10 Whitjield V. Fausset, 1 Ves. 389 ; Ward v. Oamone, 17 Ves. 134. 11 Bull N. P. OF SECONDARY EVIDENCE. 1345 sons, and that objections to the title have ijeen made and answered, ^ will all be admitted as evidence of its contents ;^ nor will the force of such evidence be destroyed by tlie fact that unexecuted engross- ment of the deed in question has been discovered ;^ as the engross- ment might have been lost or mislayed by accident ; and in default of such testimony, parole evidence will sometimes be admissible,* particularly where there has been a wilful destruction of the instru- ment by the opposite part}^^ But an affidavit of i.he vendor will not be sufficient.^ In certain cases copies of documents are sufficient evidence of them, without producing the originals. Thus by the 3rd & 4th Ed. VI. ch. 4,^ patentees and persons claiming under them may make title in pleading, by showing forth an exemplification of the enrolment of the letters patent, as if the letters patent themselves were pleaded and shewn forth. By the 10th Anne, ch. 8 * it is provided, that where the original is wanting, the party pleading may show forth and produce a copy of the eni'olment ; and such copy, examined with the enrolment, and signed by the proper officer, and proved upon oath to be a true copy, shall be of the same force and effect as the indenture of bargain and sale would be, if produced. By the 8 Geo. II. ch. 6,^ all persons having or claiming title to any lands, &c., in the North Riding of Yorkshire, may register at full length all deeds, writings wills, and conveyances, under which such title shall be claimed ; and all copies of such enrolments of such deeds, &c., signed by the registrar or his deputy, shall be good evidence of such deeds, &c., destroyed by fire or other accident. And by the 7th Geo. IV. ch. 57, petitions, schedules, assignments, and other proceed- ings respecting insolvent debtors, are proved by copies purporting to be signed by the proper officer, and tinder the seal of the court. It may be noticed here that the memorial of a registered deed unless it contains the deed verbatim, (which before the act of 1 Ward V. Garnons, 17 Ves. 134. 2 SeeMnll. on Prc6. 197. 3 SHpuiith V. Shirley, 11 Ves. 64. - 4 10 Co. 92 b. ; Villiers v. Villiers, 2 Atk. 71 ; and see Waller \. Ilorsface, 1 Camp. 601. .5 Gartside v. EatcUffe, 1 Ch. Ca. 292 ; Delaney r. Tenison, S \i. P. 0. (ib% ; Dahtmi v. CoaUuinytli , 1 P. Wms. 731 : Medlicot v. Joyncr, 1 Mod. 4 ; Rex v. Sir T. Culpepper, SUin. G73 ; Rohin.^on \ , Davis, 1 Str. 626. 6 Re Chaiiilierlain, 2Cliam. R. 362 ; Re Bell, 3 Cham. R. 2S9. 7 Explained bj' 13 Eliz. ch, G. 8 ^ec. 3. 9 Sec 22. 6i 1:346 PROCEEDixos in the master's office. 1865,1 j^ rarelj' did^ is not alone sufficient evidence of the contents, as the law required in memorials, only the date of the instrument, the names and additions of the parties to it, the names and additions of the witnesses, and their places of abode ; the lands contained in it, and the City, Town, Township or place in County or Riding, where the lands are situate in the manner in which the same are described in the instrument or to the like effect ; - and the deed may there- fore have contained important particulars not noticed in the memo- rial, such as a proviso for redemption, a trust and other various exceptions and qualifications. Copies also which are examined with the originals, and which are sworn to be true copies, are admissible in many cases, although there be no proper officer appointed to make them, if the removal of the original would be attended with difficulty or danger. Thus copies of the journals of the houses of parliament,^ or of the transfer books of the East India or other public Companj-, will be admitted as evidence, if the originals are admissible.^ Extracts. — Extracts from documents of a doubtful character, cannot be received as evidence. The original must be produced, that the court may judge by inspection of the^admi.-isibility even of the document itself.® Recitals. — In modern transactions recitals are not to be relied on, except so far as they are evidence in themselves by way of estoppel ; but so far as they state other independent evidence, as letters of administration, probate and deeds, between third parties, &c., the letters of administration, deeds, &c., must themselves be pi'oduced.6 But recitals of births, survivoiships, kc, in old deeds, are very frequently admitted in evidence, particularly where the transaction is not very important, and the expense of furnishing the best evi- dence would be considerable ; and it may be said to be the coudtant pi-actice of conveyanceis, on the examination of titles, to receive as 1 29 Vic. ch. 24. 4 Cob. Stat. U. C. oh. 89, sec. 19. 3 Jmu'^ V. Randal, Cowp. 17 ; Blrt v. BaHcn, Dung. 166 ; Rex v. Lord Gordon, Doug. 569. 4 Rex V. Gordon, Doug. 569 ; Lynche v. Clarke, 3 Salk. 134. r. Woolley V. BromiihUI, 13 Pri. 500. i; 3 I'rest. Ato 23U. OF SECONDABY EVinKXCK. Ifi^l evidence recitals of thirty or forty yi'ars liaok, il' tlio possession has been according to them, and then- nrc corroborative instances strengthening the presnmjition that the facts wei'o according to such recitals.^ And if the y instal- ments. On a bill filed by the purchaser for a specific performance of the contract. Held, that he had not, by going into possession, waived his right to a refei'enee as to title, and that lie was bound to pay his pui'chase money into Court pending the enquiry before the Master,-"' Where a purchaser takes possession before conveyance, he is liable to interest from the time of taking possession, and the lia- bility is not limited to a period of six years.* A purchaser, before the time appointed for tlie completion of a contract for the sale of land, and -A'hile the investigation was in progress, went upon and cleared a portion (about two or three acres) of the land sold, and sowed the same with turnip seeil, which it was necessary to do, or lose the wliole season ; he did not, hov,'ev(.>r. harvest the crop, but 1 Coiimierciat Bant v JlcCoiliieli, 7 Grant, 323 ; and see Leslie \. I'restua, 7 Grant, 434. •2 Darbi) V. Gr.-eidi'i's, 11 Grant, 361. 3 O'Keefe v. Taiilor, 2 Grant, 306 ; and see Jaelcson v. Jesmp, Grant, 1S6. 4 trfeat Wcfiteni liallwail Oinnpany v. Jojw^^ 13 Grant, 355. OF SECONDARY KVIDENIE, 1359 abandoned the possession entirely in consequence of objections to the title not being removed. Held, no waiver of the purchaser's right to an enquiry as to title.^ On a purchase of land, the price for which is jiayable by instal- ments, the purchaser, although not entitled in the meantime to call for a rescission of the contract, may require his vendor to show a good title before parting with any portion of the purchase money ; and in the event of the vendor taking proceedings to enforce pay- ment, the purchaser, upon bringing into Court the amount of prin- cipal and interest actually due, will be entitled to an injunction to restrain the action until the title has been investigated ; and the fact that prior instalments of the purchase money have been paid, will not disentitle the purchaser to insist upon a good title being- shown.^ It may here be mentioned that a purchaser cannot file a bill for a rescission of his contract, but must wait until the vendor attempts to enforce the agreement.^ A clause in the conditions of sale, that the vendors shall only produce certain title deeds and an abstract of the registrar, and that the purchaser shall not be entitled to call for any other proof of title, does not exempt the vendors from show- ing otherwise a good title.* This case is important as it shows to what length the Court will go in compelling a vendor to give a good title, though he may have attempted to shelter himself from the obligation of showing one by the conditions of sale. On an enquiry as to title the vendor was uuable to produce one of the title deeds, or to show that a receipt was endorsed thereon for the purchase-money ; Held, no objection to the completion of the contract. So, also, that the non-production of a certificate of no taxes in arrear was no objection to the title." It may here be remarked that an application by a purchasei- in a suit for specific performance for abatement of purchase-money on the ground of outstanding dower should be made in Court, and not in 1 Mitchaltrec v. Irivin, 13 Grant, 537. 2 Thmn-psnn v. BruiisJriUt 7 Grant, 54^. S McnoimM V. Garrett, 7 Grant, 606. 4 CU'inila /'.'riiuiiwat Buildimf Socindi v Wallis, 8 Grant, .368 5 Tlii>:iiiisin\. niiltilnii, OGrmt, 3r>i). 1360 PROCEEDINGS IN THE MASTERS OFFICE. Chambers.^ Per Spragge, V. C, " What you ask, should, I think, have formed part of the original decree. In the case of a purchase under the decree of the Court an application of this kind would properly be made in Chambers ; but not in a suit for specific per- formance." When the title has been made satisfactory to the pui'chaser, or it has been determined to be good, he should pay the balance of the pur- chase-money into Court. In England this is done by obtaining an order for the purpose ; but our order ^ allows it to be done without resort to the Court ; and it then becomes the duty of the vendor to convey the property to him. Where the party having the conduct of the sale neglects to pay into Court the deposit paid to him by the purchaser at the time of sale, the Court will on the application of the purchaser, order him to do so. Semble, that a purchaser at a sale under a decree has a right to take out the report on sale, and get it confirmed so as to obtain a completion of the purchase to himself, at least, where he is the sole purchaser.^ Per Spragge, V.C, " As to the application to give the conduct of the sale to the purchaser, it can be done by the Master, if necessary, but I see nothing to prevent the purchaser tak- ing a report of the sale to himself (here he was the purchaser of the whole property) and proceeding to complete the purchase." Before the Court will compel a purchaser to accept a title it must be shewn that the title is reasonably clear and marketable, without doubt as to the evidence of it. Where, therefore, the deed to the vendor was executed on the 14th of February, 1854, and in December of that year a commission of lunacy was issued against the grantor in that deed under which it was foimd that he was insane, and had been so from the month of February or March previous, the Court refused to enforce the contract.* 1 Shinners v. Graham, 1 Cham. Rep. 212. 2 Order 889. 3 Crooks V. Glen, 1 Cham. Rep. 354. 4 Framhv. St. (Smiinln, 6 Grant. 0.36. PROCEEDINGS ON OBTAINING THE CONVEYANCE. 1361 Section II. — Proceedings on Obtaining fha Conveyance. If the parties can agree upon the form of the conveyance they they may do so ; for a reference to a Master to settle its terms is neces- sary only when they differ. The draft conveyance is prepared by the solicitor for the pur- chaser,^ and sent by him to the solicitor conducting the sale, in order that he may procure it to be perused and approved on behalf of the necessaiy parties thereto.^ On a sale under a decree, all persons having a legal interest in the property, whether parties to the suit or not, should concur in the conveyance ; but the purchaser is not entitled to the concur- rence of any persons being parties to the suit, or otherwise bound by the proceedings therein, whose interests are merely equitable.^ Where in an administration suit, property was sold upon credit, part of the purchase money to be paid down and the balance seciired by mortgage, the sale being under the ordinary condition that the purchaser should prepare the conveyance at his own expense- Held, that the purchaser must bear the expense of both deed and mortgage.* In ordinary cases, the English rule among convey- ancers is, that the vendor is at the expense of the deed, and the vendee of the mortgage, and this is the usual practice in this coun- try. But in our Court, one condition in Schedule P., referred to in Order 379, is that " The purchaser shall have the conveyance pre- " pared at his own expense, and tendei' the same for execution ;" and Spragge, V. C, said, in this case, that it was a general rule that a mortgagor should pay for the preparation of the mortgage deed, and upon that ground, as well as on the authority of Re Fmser, decided by V. C. Esten (not reported), he held that the 1 As to the preparation of the convej^ance, see Sun. V. & P. 557 : Dart, 325-365 : 1 Davidson Conv. 499 : as to the parties thereto, see Dart, 769, 770 ; and as to covenants for title, see lb. 350-364 ; Siig. V. * P. 672, 615, 88.5 ; 1 Davidson, 100-146, 188-203 ; 1 Pridraiix Conv. 138. For prece- dents of conveyances of estates sold under a decree, see 2 Danldwn, 244-270 ; 1 Prideaux, 244-247. 2 The solicitor conducting the sale is not entitled to charge for perusing, or for a cttpy of the draft, unless he is concerned for one of the parties thereto. 3 1 Prideaux Conv. 244, n., citing Dart, 770 ; KeaHnge v. Kcatinge, 6 Ir. Eq. 43 ; Cole v. SeweU, 17 Sim. 40 ; Re WiUiaiuK, 5 lie G. k S. 615 ; and see Leu'in, 671, n. (h.) ; 2 Damdmn Conv. 248 n. (.1). 4 Faliner v. Ran, 1 Cham. Rep. 24G. 62 1362 PEOCEEDTNGS IN THE MASTER'S OFFICE. purchaser should bear the expense of preparing the mortgage. This principle was supported in a subsequent case.* It may here be noticed that deeds executed in England, for the purpose of conveying land situate in this Province, do not require to be stamped under the provisions of the English Stamp Acts, but are valid in this Province though unstamped.^ The English Stamp Acts do not render an unstamped deed void, but merely inadmissi- ble in evidence in the Courts there ; they impose a penalty for not stamping deeds ; if this penalty be paid, deeds previously inadmis- sible would thereupon become valid and admissible. Whei'e, for the purpose of a suit, it is necessary to obtain an order for the execu- tion of a conveyance by infant i-epresentatives of a mortgagee not parties to the cause, the proper mode of applying is by petition.^ It not unfrequently happens that, in carrying out a sale, the purchaser is obliged to give a mortgage securing part of the purchase money. The following case was one of specific performance, but the princi- ples involved in it are appUcable to the practice now under consid- eration. In a suit by a vendor for specific performance, where the vendor is ordered to execute a deed, and the vendee to execute a mortgage. Semble, that it would be improper to insert a power of sale in such mortgage, and, qucBre, if the deed merely contains qualified covenants, whether the mortgage should contain any others. Where a mortgage has been settled by a Master, and the party ordered to execute it objects to its form, it is not a proper mode of raising such objection to refuse to execute such mortgage and to execute a mortgage differing from the one settled.* A fore- closure suit had been brought and a fijial order obtained therein ; some time afterwards the mortgagor had filed a bill to redeem, and the Court opened the foreclosure and granted redemption, it ap- pearing that no change had taken place in the relative position of the parties. Held, on a motion by the mortgagee for payment out of Court of the mortgage money, that it was unnecessary for the wife of the mortgagee to join in the conveyance to, the mortgagor to bar dower.'' Esten, V. C, said that as a final order for foreclo- 1 Watt V, Parker, 2 Cham. Rep. 33. 2 Xurray v. Van Brocklin, 1 Cham. Rep. 300. 3 Owen V. Ca/mphell, Re Mills In^fanta, 4 Grant. 630. 4 McEaij V. Reed, 1 Cham. Rep. 508. G Simp.^oa V. Sim/psoii, 1 Cham. Rep. 265. PROCEEDINGS ON OBTAINING THE CONVEYANCE. 1363 sure was a defeasible instrument, and as there had heen no change in the relative position of the parties, it was unnecessary for the mortgagee's wife to be a party to the conveyance in oi'der to release her dower. A mortgagor oi- his heii's are not proper parties to a conveyance of the estate to a purchaser at a sale under the decree of the Court.i If the wife of the mortgagor joins in the execution of the incum- brance, and a sale of the mortgaged estate is afterwards effected under a decree of the Court made in a cause instituted upon such mortgage, it is not necessary for her to join in the conveyance to the purchaser^ Where a mortgagee dies intestate, leaving an infant heir, after a decree for foreclosure, but liefore the final order, and his executor revives the suit and obtains such order, and the mort- gage debt equals or exceeds the value of the mortgaged premises ; the infant heir is a person seised upon trust within the mean- ing of the English statute 11 Geo. IV., and 1 Wm. IV., ch. 60, and may be ordered on petition to convey the estate to the executor or to a purchaser for the executor. In such a case, however, the Court will not make the order, unless it appears that the applica- tion of the estate in question is necessary for the satisfaction of the debts of the intestate, and a reference as to this will be directed' The petition shcndd be entitled, not in the cause, but in the matter of the infant.^ If the purchaser is guilty of delay in preparing the conveyance, it seems that he may be ordered, on motion, to leave the drafts there- of at the Master's office within a limited time, to be there settled by the Master, and the deed may be then engrossed, executed, and tendered for the purchaser's acceptance.* On the other hand, if there is any improper delay on the part of the vendors in perusing and returning to the purchaser the draft or executed engrossment, he may apply by motion for the return thereof to him. When a conveyance, or othei- deed, is ordered to be executed, it it usually forms part of the order directing it, that it shall be settled by the Master, in case the parties differ about the same. 1 Bosh v. Stc-elf, 1 Cham. Rep. 91. -2 Moore v. SMntiers, I Cliaiu. Rep. 59. 3 Rf Undges, 1 Grant. 2S.'">. 4 r. '< fo V. Hevan, 1 C. P. Our.|). t. Cott. 381. Probably now, uurc a purchaser to be guilty of ini- ]»ruper delay in pre|)aring and tendering his conve.vanct,', nftor the limitation of a time fnr Ills so doing, the di.stribution of his purchase money, on nutievj to him, would not be withheld on the mere ground that he had not got his conveyance. 1364 PROCEEDINGS IN THE MASTER'S OFFICE. The course of proceeding under such a direction in pointed out by the 76th of Lord Lyndhurst's Orders,^ which provides that where a Master is directed to settle a conveyance, in case the parties differ about the same, then the party entitled to prepare the conveyance shall bring the draft of the conveyance into the Master's Office, and give notice of his having so done to the other party. This notice may be given by serving the usual warrant " on leaving " ; after which the other party is at liberty, within eight days, to inspect the same without fee, and to take a copy thereof, if he thinks proper. If the party is not prepared, or likely to be prepared, at the end of the eight days, to adopt the conveyance, or to state his objections to it, he should apply to the Master for further time, which the Master is, by the above order, empowered to grant at his discretion If he does not obtain an extension of time, he must, at or before the expiration of the eight days, (or having obtained such extension, at or before the expiration of such further time as the Master in his discretion shall allow,) either adopt the conveyance or signify his dis- sent therefrom, which he must do by delivering a statement, in writing, of the alterations which he proposes to make in the draft of the conveyance, serving, at the same time, a warrant ' on leav- ing.' If the party does not signify his dissent, or deliver a statement, in writing, of his proposed alterations, within the eight days, or such further time as the Master may have appointed for that pur- pose, the Master, at the expiration of the eight days, or the further time which he has appointed, may proceed to settle the conveyance according to the practice of the Court, which he must also do where a statement of proposed alterations has been delivered, and the party bringing in the draft refuses to accede to them. It is to be observed, that, by the 76th order^ it is directed, that in case the Master shall adopt the proposed alterations in the draft of the conveyance, then the costs of the proceeding in respect of the conveyance shall be borne by the other party. 1 Ord. 1828, as amended 1831. TJiese Orders govern our practice. 2 Ord. 1828, an amended 1831. PROCEEDINGS ON OBTAINING THE CONVEYANCE. 1^365 The rule as to settling conveyances, under the decree of ' this Court, is thus stated by Lord Hardwicke — " Where conveyances are to be made b}'^ a decree of this Court, the settling them to be sure is to be by the like kind of rule, as men of judgment among the conveyancers would direct."^ This being the rule, the Court sanc- tions the practice, generally resorted to by the Masters, before sell- ing a conveyance, or directing the draft to be laid before a convey- ancer to advise upon it,' in which case the same course of proceed- ing must be adopted as when he directs an abstract to be laid before a conveyancer. When the Master has settled the draft of the conveyance, an en grossment of it will be made, and the Master will signify his allow- ance of it by signing his name in the first and last !|heets, and also his allocation in the last sheet, in the following form, in the margin of the engrossment. — " A.v.B. I approve of and allow this inden- ture, being the same mentioned in the decree within referred to, dated " The conveyance, having been approved of by the Master, must be executed by the parties, and, it anything is required to be done by the Court on the execution of the conveyance, an affidavit of such execution must be made, and on such affidavit the Master will issue his certificate, which is filed in the usual manner.* Exceptions lie to the Master's certificate of having settled a con- veyance,* and in Lloyd v. Griffith,^ the Court directed the Master forthwith to make his certificate or report of his approbation of the draft of a conveyance, which he was to settle in order that the party might except thereto. Where any of the parties to the suit refuse to execute a convey- ance to which they have been properly made parties, the purchaser may apply, by motion, that they may be ordered to execute the same within a limited time. The notice of motion must be served on the solicitor of the party, or on the party himself where he acts in person ; and must be supported by an affidavit of the facts ; and 1 Lloyd v.'Onffith, 3 Atk. 264. 2 Turn. Poviell, 2 Cox, 3:j4. •Z Mm'fis V. Clarkson, B Swanst- 558, 5li7. 3 Heiniwj v. Archer, 9*Beav 366. 4 See Seton, 1197. 5 Barton v. Latour, 18 Beav. 526. 6 Boioley V. Adams, 16 Beav. 312 ; Stnmg v Strong, i Jur. N. S. 943, V. C y. ; Noble v. Stvw, (No. 2), 30 Boav. 272. 7 Where thesccuritj' ia merely equitable, a conveyance is not in general necessary. 8 Seton, 237. 1 PROCEEDINGS IN OBTAINING THE OONVEVANCE. 137 may arrange with the incumbrancers that their charges shall l>e kept on foot as against the estate and the purchaser only, and apply for the sanction of the Court to the arrangement.^ Where the pur- chase money has been paid into Court, the party conducting the sale may apply, that, upon the execution by the incumbrancers (if proper parties) of the conveyance to the purchaser, the amounts due to them may be paid out of the purchase-money.^ We have hitherto discussed the course of proceeding to complete a sale, as applicable to those cases only in which the purchaser is de- sirous and willing to complete it himself. It may, however, happen, that, after he has been allowed as the purchaser of a lot, he becomes unwilling to complete his purchase : in that case, it is the duty of the solicitor conducting the sale, who acts on behalf of all parties, to take the necessary steps to compel him. The rule, that the report on the sale must have become binding by being confirmed before the contract can be considered as complete, applies equally to the cases in which it is sought to compel a purchaser to complete his purchase, as to those in which he himself seeks to enforce the contract.-' As a preliminary step, therefore, it is necessary that such certificate should have been filed in the usual manner, and the time have ex- pired for appealing against it. If the purchaser neglects to pay in his purchase-money in due time, the Court, on being satisfied that he has accepted the title, or is precluded from objecting to it,* and that the time for payment has expired, may order him to pay his purchase-money into Court hy a limited time ; and in default may direct a resale. The application for the order is made on motion, by the solicitor conducting the sale. The notice of motion must be served on the purchaser, and be sup- ported by evidence of his default. ^ The motion may either be con- fined to the object of obtaining a compulsory order for payment of the purchase-money : in which case, if default is made in payment, an order for a resale may be obtained on a subsequent application ; or it may also ask that, in default of payment, a resale may be dir- ected, and the purchaser ordered to make good any deficiency in l*For form of order, see Setun, 1202. 2 Seton, 237. s'Anon., 2 Ves. J. 3S6 ; Vincent v. Going, 3 Dr. & War. 76, n. (a.), i Mutter V. Marriott, 10 Beav. S3 ; Bulmer\. Alison, 8 Jur. 440, V. C. W. ; Seton, 1194. 5 For form of order, see Seton^ 1194. 1372 PROCEEDINGS IN THE MASTER'S OFFICE. in price thereat, and the costs occasioned by his default;^ but the purchaser should not be discharged from his purchase.^ If, on the hearing of the motion, it appears that the purchaser ought not to be considered as having accepted the title within the meaning of the conditions of sale, he may ask for an inquiry whether a good title can be made : in which case he should, on a separate motion, obtain an order for an inquiry into the title, atid prosecute such order in the usual way. If an order to compel the purchaser to pay in his^purchase money is made, it must be served personally upon him ; and, if not com- plied with, it may be enforced by attachment and other process. A sale before the Master was not within the Statute of Frauds ; and after confirmation of his report, the sale might be enforced against the representatives of the purchaser, although he had not signed the contract : the judgment of the Court taking it out of the Statute ; and this rule no doubt still prevails.^ The Court, however, cannot enforce the contract against them without a suit, but it will allow the heir to have the benefit of the contract, upon payment of the purchase money, leaving it to him to compel the executors to reimburse him, if they have assets ; and, where the heir refused to accede to this arrangement, the Court directed a resale : reserving the consideration as to any deficiency that might arise on the resale, and by whom the costs of it were to be repaid.* If at the hearing of the application to compel the payment of the purchase money, the purchaser can show any sufficient cause why the contract should not be enforced, it will be rescinded ; but as a general rule, where a sale has been fairly and properly conducted, and the party is able to complete his ccHitract, he will be held strictly to his bargain. Where, however, the contract is inequitable, 1 Gray V. G/ay, 1 ,Beav. 199 ; S. C. -iwnt. Saunders v. Gray, 4 M. &1C. 515, n (a.) ;iHardinff v. Harding, 4 M. (S: C. 514 ; 3 Jur. 1164. It is presumed that a refale may be directed, without giving the purchdjer the option of paying in his purchase money ; see Foligno v. Martin, lii Beav. 686 ; Sweet v. Meredith, 4 GiS. 207 ; 9 Jur. N. S. 669 ; but see Robertson v. Skeltou, 13 Beav. 91, where a purchaser was allowed to complete after an order for a resale. i Gray v. Gray, and Harding v. Harding, ubi sup.; but see Holder v. Huffin, 1 V. & B. 544 : Cun- tiinghaiii v. ifUliams, 2 Anst. 344. Where the purchaser became^ibankrupt before compietion, and the assignees declined to complete, the Court held that the deposit paid by him was forfeited, and ordered a resale ; Depree v. Bedborough, 4 Gift. 479 : 9 Jur. N. S. 1317. 3 Sug. V. & P. 109, citing Attorney-General v. Day, 1 Ves. S. 218. 4 Lord V. Lord, 1 Sim. 603-506. PROCEEDINGS IN OBTAINING THE CONVEYANCE. 1373 the Court will relieve the purchaser as well as the seller.^ Where also, it is clear that the purchaser is not a responsible person, it is sometimes found to be more beneficial to the parties that he should be discharged at once from his contract, on his submitting to for- feit his deposit, if any, and paying the costs, than to incur the expense and loss of time attendant on keeping him before the Court till after a resale, ^n such a case, an application for the sanction of the Court to the arrangement should be made, supported by an affidavit of the facts ; and the purchaser must be served, and appear and consent. Where it was discovered that the purchaser was insane kt the time of the bidding, he was discharged from his purchase ; but the Court would not direct the next best bidder to be declared pur- chaser, although asked to do so on behalf of all the parties in the cause, and the bidder consented ; but directed a resale.^ If an order is made for a resale, it is to be proceeded with in the Master's office in the usual way. Should there be no bidding at the resale, or if the highest bidding is less than the purchase money of the defaulting purchaser, the Master will certify the fact in his certificate of the result of the sale ; and as the order for the resale usually directs that the former purchaser shall, within eight days after the certificate, pay into Court either the whole amount or the amount of the deficiency, as the case may be, as certified by the Master together with the costs occasioned by his default,^ a copy of the Master's certificate should be served on the former -purchaser, and if default is made in payment, an attachment or other process of contempt may be issued and enforced against him. The costs may be taxed and recovered in the usual way. If, after becoming the bidder for an estate, the purchaser is desirous of being discharged from his contract, and of substituting another person in his stead, the Court will make an order to that effect, on the application of the original and sub-purchasers, or of either of them with the consent of the other.* The summons must 1 Sug. V. & p. 119. 2 Blackheard v. Lindir/i'e^i, 1 Cox, 205 ; see, however, Dart, 752, ii. (y) ; and Hlighes v. Lupseontbe, 6 Hare, 142. 3 See Seton, 1210. i Where neither the original purchaser nor the vendor consented, the application was refused : Ef Settled Estates Ant, 4 Gilt. 90 ; S. C. nom. Re Ooodmn, 8 Jur. N. S. 1173. 1374 PROCEEDINGS IN THE MASTER'S OFFICE. be served on the solicitor conducting the sale, whose costs will be costs in the canse.^ The substitution will be conditional on the purchase money being first paid.^ The application must be supported by an affidavit of the original and sub-purchasers, or one of them, showing there was no collusion or under-bargain between them before the teport on sale was binding, or disclosing the terms of the under-bargain, if any,^ as it appears, that if a purchaser re -sell behind the back of the Court before the report of his being a purchaser has become binding, the second purchaser is considered a substituted purchaser, and must pay the additional price into Court for the benefit of the parties to the suit.* Where the highest biddei- at an auction induced the auctioneer to accept another person in his place, concealing the fact that he had sold his bargain at an advance, which he received and then absconded, the property was oi'dered to be resold, reserving all questions of liability of the original or sub-purchaser.^ After the report lias become binding, tlie purchaser may resell at a profit for his own benefit f and if the purchase money has been paid into Court, an order to substitute the sub-purchaser will not be essential to entitle him to call for a conveyance, with the assent of the original purchaser, for the ordinary form of order under which purchase money is paid into Court directs the conveyance to be made to the purchaser, or as he shall direct.' Where the purchaser entered into a sub-contract, but died before its completion, and his heir was abroad, the sub-purchaser was substituted, on pajn'ng the original purchase money into Court.^ The practitioner has now conducted his case nearly to an end. In the case of foreclosure he has registered the final order of fore- closure ; in the case of a sale he has seen that the title is good 1 Christia/i^' v. Chambers, 4 Hire, 307. For form nf order, see Seton, 1207. 2 Ri^by V. Macnamara, 6 Ve.s. 51.5 ; and see form of order in Setoii., 1207. 3 Rigbi/v. lifcNam^tra, itbi '•■np.; Vfd" v Davenport, 9 Ves. (315: Ilolyojjd v. 17i/(t^(, 2 Coll. 327 ; 9 j'ur. 1072 ; tietoii, 120J ; and see Dewell v. Tuffthell, 1 K. k. .T 324. 4 Hodder v. BuDln. Taml. 341 ; Sutj. V. & P. 100. 5 Holroyd v. Wijatt, 2 Coll. 327 ; 9 Jur. 1072 ; In Re Settled RStetes Acts, 4 Giff. 90 ; S. C. mm. Me Gfoodiyirt, 8 Jur. 1173, a r.isale w,ts ordered on the term.; of the original pnrcliaser paying the advance into CourtE 6 Dewell V. Tuffnell, 1 K. & J. 324 ; Sui;. V. * P. 100. 7 See form of order, Seton, 1193 ; and see Matehett v. Paltner, and Haire v. Looitt, cited ib. 1208, wiiere the original purchaser had died after pa.vraent, but before conveyance. For form of con- veyance to a sab-purchaser, the original purchaser joinin^^, see 1 Prtdeaux Conv. 243. 8 Pearce v. Pearce, 7 Sim. 138. PROCEEDINGS IN OBTAINING THE CONVEYANCE. 1375 that the conveyances are executed, and that the proceeds of the sale are in Court for distribution among the parties entitled. The practice in paying money out of Court will be considered in ano- ther place. But another point is to be considered. In the case ot a sale, it often happens that the pi'oceeds are insufficient to pay the plaintiff'. It will be remembered, that by Order 454, the purchase money is to be applied in payment of the amounts found due to the plaintiff, and to the other incumbrancers according to their priority ; and Order 455 provides that, '' In tlie event of the purchase money being insufficient to pay what has been found due to the plaintiff for principal, interest and costs, subsequent inteiest, and subsequent costs, the plaintiff is to be entitled (where the mortgagor is a defen- dant, and such relief is prayed liv the bill) to an order ex parte for payment of the deficiency." In such a case the plaintiff must proceed in the Master's office in the usual way : take out and serve a warrant, underwritten, " To take fiubsequent account ; tax subsequent costs; ascertain the defi- ciency now due to the plaintiff; and settle and sign report as to deficiency." On the costs being revised, the Master settles and signs his report in the usual way ; but this report does not require confirmation, and the plaintiff may obtain his order for payment of the deficiency ex parte from the Registrar, on which he proceeds to obtain a /i. fa. or other process, as described in another place. If the bill were taken or noted pro confesso against the defendant, and if he filed no traversing note, this account may be taken ex parte ; but otherwise a warrant must be served, underwritten as already described. Proceedings in case of Redemption. A decree for redemption directs the plaintiff to pay the balance reported by the Master to be due by him to the mortgagee, within six months after the making of the Master's report ; and in default, that his bill is to be dismissed with costs. Order 466 provides that, "In a redemption suit, if the plaintiff does not redeem the defendants or such of them as he is ordered to redeem, the bill need not be dismissed ; but where there are othei' 1376 PROCEEDINGS IN THE MASTER'S OFFICE. defendants, in lieu of the bill being dismissed the plaintiff may be declared foreclosed, and directions may be given, either by the decree, or by subsequent orders, as to the relative rights and liabilities of the defendants as amongst themselves ; and such proceedings are in such case to be therefore had, and with the same effect, as in a foreclosure suit." This order simplifies the proceedings in redemption suits ; if the plaintiff redeems by paying the amount found dvie by the Master's report, the mortgagee is bound to re-convey the premises, and this terminates the suit ; if he makes default in paying at the time appointed by the report, the defendant applies to the Court, in the ordinary way, for an order dismissing the bill ; and on this application the Court may, if a proper case be shewn and other parties are interested, convert the case into one of foreclosure. In such an event, the decree would be worked as an ordinary one of foreclosure, the proceedings in which have^already been stated. In proceeding upon a decree for redemption, the Master will direct the mortgagee to bring in his account of the amount claimed, and this will be framed and verified by liis affidavit, precisely as if he were proceeding to foreclose. The Master will take the account as he would under a foreclosure decree, and the plaintiff will be at liberty to surcharge as in other cases. Where the account is taken the costs will be taxed and revised, and the i-eport prepared and issued as in other cases. The practice as to attending to receive the redemption money, and the course to be pursued where the state of the account has been altered by receipt of rent or by occu- pation, will l>e similar to that already pointed out in foreclosure cases. Investrtients in the Purchase, or on Mortgage, of an Estate. — Before a fund under the control of the Court will be ordered to be laid out in the purchase, or advanced upon the security, of an estate, the Court mast be satisfied that the estate is a fit and proper pur- chase or security, and that a good title can be made to it.^ Under the present practice, a conditional contract for the purchase or 1 As to investments by the Court, and by trustees under or without ita sanction, see 2 L. C. Eq. 743- 750, 972-3 ; Lewin, 232-251, fi99, 700, 748-750 ; Seton, 64. fif,, 490-492, 627, 775-778 ; 2 Spence, Eq. Jur. 025-927 ; and for forms of orders in such cases, see Selon, 490, 491, 525, 776. PROCEEDINGS IN THE MASTJSE'S OFFICE. 1377 advance is usually entered into ;^ and the contract, and evidence of the fitness of the purchase or security, are produced at the time of making the application. If the Court or judge is satisfied there- with, the investment is approved at once,^ and an order made for an inquiry wliether a good title can be made to the estate f and directing that, in case a good title can be made, a proper convey- ance be settled by the judge ; and that upon the due examination thereof being certified,* the purchase or mortgage money be paid over to the persons entitled thereto. If the Court or judge is not satisfied with the evidence in support of the application, an inquiry as to the propriety of the proposed investment will be directed ; in which case, consequential directions, in the event of such invest- ment being approved, will be given by the order."' The order is usually made upon a petition, stating the particu- lars of the proposed purchase or security ; it has, however, been sometimes made on motion at Chambers,'' The petition or motion must be supported by the affidavits of surveyors or other qualified persoas, stating the size, value, rental, and outgoings of the estate and any circumstances rendering the proposed purchase or security desirable.'^ The investment having been approved, the abstract of title is examined with the title-deeds, by the solicitor having the carriage of the proceeding, or by some other qualified person employed by him f and an affidavit of such examination, and that the abstract is true and- correct, is carried, with the abstract, into the Judge's Chambers. Where it is not made to appear by the affidavit that the examination is made by a solicitor, the solicitor concerned should join in the affidavit, and state that it was made by a person competent so to do. If conveyancing counsel make any requisitions on the title, they are dealt with in like manner as on a purchase 1 As to ag-reeinents relating to land, see Su(;. V. & P. xii.— xix., 820 ; Add. Cont. 65-117 ; 1 Prideaux Conv. 43-52. As to contracts by agents, see Add. Cont. 686-6Si ; Sug. V. & P. 820 ; and for form of ag;reements for the sale and pure lase of land, see 2 Davidson, Conv. 3-14, 29, 63 : 1 Prideaux, Conv. xv.-xvi., 53-74 ; and for a loan of money on mortgage, ih. 74. : 2 Setan, 492. 3 The title is sometime'S appi'oved by the order sanctioning the investmsnt : see Seton, 491, No. 2. 4 Where the fund is not in Court, a certificate of execution is not required : see Seton 492. 5 See ibid For form of order, see ib. 490. 6 Seton, 492. 7 Seton, 492 ; Re Kinney, 1 N. R. 308, M. R. 3 As to the vezification of the abstract, examination of the deeds, and investigation of the title, see Dart 204-274, 275-297, 761 ; 1 Davidsmi, Conv. 485-493, 507 ; 1 Prideaux, Conv. 93-103 ; Sug. V. & P. 406-432. 63 1378 PROCEEDINGS IN THE MASTER'S OFFICE. out of Court ; and if any difficulty arises on the title, the matter may be brought under the notice of the Judge in Chambers, at an appointment obtained for that purpose.^ It may be mentioned here that, where the conveyancing counsel certified that, though a good title of sixty years was not shown, yet the title was a safe holding one, the proposed purchase was sanc- tioned by the Court ; it appearing, in other respects, to be desira- ble, and for the benefit of the person entitled, who was an infant.^ When the title is approved by the conveyancing counsel, and the draft conveyance or mortgage settled by him, such draft, or a fair cop3' thereof, is left at Chambers,' and an appointment obtained and served to proceed thereon. At this appointment, the final opinion of counsel on the title should be produced ; and if the opinion is satisfactory, the draft conveyance or mortgage will be settled and marked for engrossment.* An affidavit must be made that the engrossment is a correct transcript of the draft settled at Cham- bers ; and on production of an office copy of the affidavit, with the engrossment and draft, the Referee or Judge will sign a memorandum of allowance in the margin of the first skin of the engrossment, and will write his initials on each of the other skins. The draft of his certificate that a good title has been made, and that the convey- ance ha.s been settled, will then be issued, and an appointment given to settle the draft. On attending such appointment, the solicitor having the conduct of the proceeding should produce an affidavit showing that the searches directed to be made by the con- veyancing counsel for judgments, lites pendentes, crown debts, or other incumbrances, have been made accordingly, and that none have been found, or as the ease may be.^ This affidavit should, in 1 Ex parte Christ's Hospital, 2 H. & M. 166-168. 2 Re Sheffield and Rotherham Railway Company, 1 Sm. & G. App. 4 ; but see Ex pa-rte Christ's Hospital, 2 H. & M. 166-168. 3 If a copy is left, a certificate, signed by the solicitor, that it is a true copy, is usually required. 4 As to conveyances, see S^ig. Y. it P. 557-565 ; 2 Davidson, Conv. 169-205 : 1 Pndeaax, Oonv. 122- 146 ; as to covenant for title, Swg. V. & P. 572-616 ; DaH, 360-384 ; 1 Davidson, 100-145, 188-203; 1 Prideaux, 138-140 ; and for iomis of conveyances, 2 Davidson, 465 ; 1 PHdeatax, xvii.-xxi., 152-295 , as to mortgage deeds, see 2 Davidson, 497-726 ; 1 Prideavx, 309-354 ; and for fonns. Lb. xxii.-xxvi., 359-514 ; 2 Davidson, 'ti^>i. For the ordinary conveyancing charges in common cases, see Morgan & Davcy, 500, et seq. 6 A.i to searches for incumbrances, see Dart, 302-324, 768 ; 1 Prideaux, Conv. 103-121 ; Sug. V. & P. 616-648, 847 ; and as to relief from incumbrances, Szig. V. & P. 46-'-556. The conveyancing counsel should always specify, in his opinion on the title, what searches are to be made, and against whom. PROCEEDINGS IN THE MASTER'S OFFICE. 1379 strictness, bring down the searches to the date of the Referee's certificate approving the title, and should be sworn on that day. The certificate, when settled, is completerl in tlie usual way. The engrossment of the conveyance or mortgage having been allowed rs above explained, is then executed by the necessary parties ; and if the order directs the Referee to certify such execution, an affidavit of the execution is thereupon filed, and an office copy procured and left at Chambers with the deed, and with an office copy of the certificate approving the title. From these documents, the Referee will prepare and issue his certificate of execution, and certify to whom the purchase or mortgage money is to be paid ' On production of a copy of the certificate of execution and of the order directing the payment to be made, the accountant will issue a cheque for the money to the person named in the certi- ficate. It is to be observed that these proceedings are, in this coun- try, usually taken in the Master's office.^ Partnership Suits. — A decree for the dissolution of a partnership ordinarily directs an account to be taken of all dealings and transac- tions between the partners : either generally, or from the foot of the last stated account, or other specified time ; and also an account of the credits, property, and efif'ects due and belonging to the partner- ship ; and directs a receiver to be appointed of the outstanding debts and effects, or provides some other means of realisation.^ Upon the return of the warrant to proceed on the decree, directions will be given as to the person bj^ whom, and the mode in which, the account is to be prepared and brought in ; and where deemed expe- dient, the employment of an accountant will be sanctioned. This is the English practice before a Judge in Chambers and our order 541 provides that the Court may call in the assistance of accountants ; but fche Master has no such power. Where it becomes necessary for parties to employ an accountant in order to prepare proper accounts 1 In .some of the (Jnambers, it is tlie iJiMuticu not to issue any certificate till the deed has beeu execu- ted. In such case, one certificate is made to embrace all tha objects of the two certificates men- tioned in the text. ^l ■ - cr 'i As to the enrolment of the conveyance, under the Jlortmaia Act, see Ex parte Christ s Hos- pital, V2 W. R. 669 : V. C. W. Wueve enrolment is required, the certificate of execution should not be issued till the conveyance has been left at the Enrolment OiBce, and the receipt of the Clerk of Enrolment is produced. 3 For the law respectintf private partnership, and the practice in suits relating thereto, see Add. Cent. e3&-B6S ; L. C. Iflerc. 279-361 ; LiiidUy on Part, vii.-xxi.; ib. Sup. 1-lSO ; Seton, 612-561 : and for various forms of decrees and orders in such suits, see Seton, 540-561. 1380 PROCEEDINGS IN THE MASTER'S OFFICE. for the Master's office, they must do it at their own expense ; though in a proper case, the party going to this necessary expense, will, if successful in the suit, probably be allowed the outlay on the taxation of costs. It is usual, however, for the parties to consent to the em- ployment of an accountant, and that his charges should be paid out of the estate ; but without this consent he cannot be employed with- out an order of Court. Where a sale is directed, with the approbation of the Master, or a receiver has to be appointed, the practice is the same as in other cases. On the proceedings before the Master being brought to a conclusion, the result is reported by him in the usual way. Management of Property. — The institution of a suit against trustees, for the administration of the trust estate under the direc- tion of the Court, does not preclude the exercise of the discretion given to the trustees, by the instrument creating the trust, as to the appointment of new trustees, or the management of the trust estate ; but the trustees are required, after the institution of the suit, to act under the control of the Court. ^ Alter a decree has been made, the powers of the trustees are thenceforth so far paralysed, that the authority of the Court must sanction every subsequent proceeding : thus, the trustees cannot commence or defend any action or suit, or interfere in any other legal proceeding, without lirst consulting the Ciourt as to the propiiety of so doing ; a trustee for sale cannot sell ; and an executor cannot pay debts, or deal with assets for the pur- pose of investment.^ Applications for the sanction of the Court, in such cases, are usually made by motion, supported by affidavit or other evidence of the facts. Where the object is to commence or defend anj^ action, suit, or other legal proceeding, the opinion of counsel, in actual practice, is usually required that there is a good ground of suit or defence. Where the outstanding estate of a testator or intestate is directed to be got in with the approbation of the Master,^ applications may 1 Ca/e V. Bent, 8 Hare, 215 ; Costabadic v. Costabadie, 6 Hare, 410 : Webb % Earl of Shaftesbury, 7 Ves. 480 ; Attorney-General v. Cla-clc, 1 Beav. 467 ; Graham v. Graham, 16 Beav 660 ; Peat- field V. Benn, 17 Beav 622; Lcwin, 389 ; liill on Trustees, 567: Haddan, 32. 2 Lewin, 389, and cases there cited ; Hill, 567. That a trustee or executor i.s not, after decree, ab- solved from the dutie': imposed by his office, see Lewin, 389 ; Gamer v. Moore, 3 Drew. 277. As to the duties of trustees and e.Kecutors, in respect of outstanding property, see 2 L. C. Eq. 733- 9, 2 Spenee Eq. Jur. 923-4. PROCEEDINGS IN THE MASTER'S OFFICE. 1381 be made by motion for leave to sell or convert the same, or to take proceedings or accept a composition in respect thereof.^ Among other subjects of application at Chambers, relating to the management of property under the direction or control of the Court, may be mentioned : investments in the purchase, or on mortgage, of land ; repairs ; ^ renewing leases ; ^ and cutting and selling tim- ber.* Where the sanction of the Court or Master is necessary to the let- ting of property on lease,^ the terms thereof are reduced into writ- ing, in the form of an agreement conditional on the approval there- of by the Court. '^ A notice of motion, or a warrant for an order to carry such agreement intt) effect is thereupon served ; and the appli- cation is supported by the production of the agreement, and by the affidavit of a land agent, or other competent person, stating the grounds on which, in his judgment, the agreement should be adop- ted. The power to demise on the terms of the agreement must also be shown, by the production of the probate of the testator's will the settlement, or other evidence thereof If the agreement is ap- proved, an order is made, directing it to be cariied into effect, and that the lease to be granted pursuant thereto be settled by a Judge or Master either absolutely or in ease the parties differ. Where it is necessary for the Master to settle the lease, a copy of the order, if drawn up, is left at his Chambers, and a warrant to settle the lease is taken out and served ; the draft is brought in and settled, by him, with the assistance, if necessary, of conveyancing counsel ; the draft is then engrossed, and the same steps are taken as in settling a deed ; and thereupon, if desired, the Master issues his certificate of the result of the proceeding : which is completed in the usual manner.''" Raising Money by Sale or Mortgage. — Where an order directs money to be raised by a sale or mortgage of an estate,* upon the 1 For various forms of orders relating; to outstanding estate or securities, see Seton, 189 191. 2 Seton, 506-610-513. 3 Seton, 613-521. 4 Seton, 606-613. 5 As to powers of leasing, see Sug. Pow. 711-836 ; Sur/. Stat. 310-313 ; Shelf ord R. P. Acts, 683-6,695, As to contracts between landlord and ten nt ; the rigfhts and liabilities of the paities ; and ju- dicial procedure, see Woodfall, ix.-xii., 1-320-632-986; see also Add. Cent. 3U-375; Dixon, xiii.-xv. ■ L. C. Conv. 240-S73 ; 1 Piatt, xi.-jxvii.; 2 Piatt, 82-164; Smith's Comp. 660-676; Williams' E. P. 352-381. 6 As to agreements for leases, see 5 Davidson, Cony. 1-18; and for forms of agreements for leases, and of leases, see 6 Davidson, 19-&2, 3.ud 96-472; Woodfall, 966-997. As to agricultural customs, see Dixon, 1-37, 489. 7 The certificate is sometimes dispensed with ; the allowance in the margin of the lease being deemed sufficient evidence of the lease having been settled. 8 For forms of orders, see Setmi, 244, 246. 1382 PROCEEDINGS IN THE MASTER'S OFI'ICE. return of the warrant to proceed on the order, or at an adjourn- ment thereof, the proximate sum required i.s ascertained, and the mode of raising it determined upon. Where the amount is to be raised by sale, the sale is conducted and the purchase money paid into Court, and subsequently dealt with, in the manner hereafter stated. Where the amount is to be raised by moi'tgage, and a person willing to advance the money has been found by the parties, an absti-act of the title to the estate proposed to be mortgaged is furnished to his solicitor, by whom, or whose counsel, the title is investigated, and the draft of the mortgage prepared.^ A copy of the draft is then left in the Master's office, and is settled there, in the same manner as other deeds. At this point, the precise sum required is usually ascertained, for which purpose subsequent interest will be computed ; and the costs, including the costs of the mortgage, will be taxed by anticipation, and certified by the Taxing Master.^ The total amount to be raised having been ascertained^ the draft is engrossed and approved by the Master, as in other cases. An order will then be made on motion approving the mortgage ; giving leave to the mortgagee to pay the money into Court ; and directing that, upon such payment, the mortgage be executed by the proper parties, who will be named in the order.^ Upon produc- tion at Chambers of an office copy of the Registrar's certificate of the payment having been made, and an affidavit of the due execution of the mortgage, a certificate will be made of the manner in which, or the persons to whom, the amount raised by the mortgage is to be applied or paid ; and on production of a copy of such certificate, the Registrar will pay the money accordingly. This is a general descrip- tion of the practice. The precise mode of paying money into and out of Court will be pointed out in another place. Apportionment of Deficient Fund. — Where, from a deficiency in the assets or any other cause, a fund has to be apportioned amongst 1 As to inserting a power of sale, aee Rusaell v. Plaice, 18 Beav. 21 ; and as to the mortgagee's counsel, see Nicholson v. Jeyes^ 1 Eq. Kep. 34, L.JJ. 2 Seton, 246. The costs of the mortgagee should be inclnded in the costs of the plaintiff, or other party having the conduct of the cause : ib. 3 For form of order, see Seton, 245, No. 13. . PROCEEDINGS IN THE MASTER'S OFFICE. 1383 a class/ the fund, if small, is usually directed to be apportioned in amounts to be veriiied by affidavit.^ In other cases, the apportion- ment is directed to be made by the Master, in which case, upon the return of the warrant to proceed on the order directing the appor- tionment, a concise statement is directed to be brought in, showing the fund to be apportioned, the charges upon it, and the persons amongst whom and in what amounts, it is divisible. If any costs are payable out of the fund, they will be taxed by anticipation. A certificate of the apportionment, showing in a schedule the amount payable to each person, and the debt or sum in respect of which it is an apportionment, is then made and filed, and upon production of a copy thereof to the Registrar he will pay the apportioned amounts accordingly. Appointment of New Trustees. — Where, by a decree or order, new trustees are directed to be appointed,^ upon the return of the warrant to proceed on the order, or at an adjournment thereof, evidence should be adduced, showing the eligibility of the proposed new trustees, and their consent to act if appointed. The consent should be in writing, and their signatures thereto are usually re- quired to be verified by afiidavit. A concise statement, showing the interest of the parties, and the nature of the property subject to the trust, is also sometimes directed to be brought into the Master's office. When the persons to be appointed are approved, an order appointing them will be made ;* and the order will afterwards be drawn up by the Master. After the order has been made, the Court will not enter into the comparative merits of the several persons who have been proposed by the different parties.^ Where the decree or order directs a conveyance of the trust estate, to the new trustees, to be settled by the Master,® a draft of such 1 As to the distinction 'between real and pei-sonal, and legil and equitable assets, see Uaddan, 66-79 ; 2 L. C. Eq. 88-104 ; Ram on Assets, 181-203 ; Smith's Comp. 600 ; Trower, 268-275 ; Williavts' Eeal Assets, 1-14 ; and for the principles on which assets are applied and distributed in equity, see Haddan, 90-139 ; Jiam, xix.-x.\vii.; Smith's Comp. 602-514: Trower, 3eb-306 ; Williams' Eeal Assets, 95-118.' 2 See forms of orders in Seton, 141, 142, 243. 3 Upon proper evidence of fitness, and acceptance of the trust in writing, the Court will nominate the trustees in the order : see Seton, 780. As to the appointment of new trustees, and vesting the trust estate, see Lewin, 419-436 ; Seton, 780-2. As to the duties and powers of, and allow- ances to, trustees and executors, see Lewin, 220-380-406-418 ; and see 2 L. C. Eq. 208-328, 733- 766 ; Seton, 752-8, 764-770. For forms of decrees and orders relative to the appointment of new trustees ; breaches of trust ; charging with interest ; and costs and expenses ; see Seton, 748-770, 778-782. 4 Watson V. Moore, cited Seton, 779. 5 Attorney-General v. Dyson, 2 S. & S. 628 ; Middleton v. Reay, 7 Hare, 106 : 13 Jur. 116. 6 It seems that this is directed ab lOlutely where infants or married women are interested, and in all other cases conditionally upon the parties differing : see Seton, 778. 1384 PROCEEDINGS IN THE MASTER'S OFFICE. conveyance is left at his Chambers ; and the conveyance is settled and certified, in the same manner as other deeds.^ It may be mentioned here, that trustees appointed by the Court are not, except in the case of trustees for chai-ities, authorised to appoint successors.^ Infants. Appointment and Remuvnl ofGuardiutoH. — Thepower of appoint- ing guardians,^ and making orders for maintenance, constitutes a part of the general and important jurisdiction which the Court of Chancery exercises for the protectitm of the property of infants, and the safe custody of their persons, during their minorities ;* and this jurisdiction has long been exercised in a summary way. This is the English practice under the Imp. Stat. 15 & 16 Vic. ch. 80. Our order 197 is taken from sec. 26 of that Act, and gives the Judge in Chambers power to dispose of matters relating to the "Guardianship, maintenance and advancement of Infants." TJie words used in the English Act are " applications as to guardianship and maintenance of infants.'' So that the power of our Court is rather more extensive in terms, than that of the Court in England. It may be observed, that this power is quite irrespective of that conferred on the Court by our Statute ch. 74 of Con. Stat. U. C. sees. 8, 9, 10, and 11, — the provisions of which will be noticed in another place. It would seem that the jjropermode of proceeding in this Province is by petition ; though in England it is optional to proceed either by petition or summons. It is not necessary to file a bill in either country. 1 For forms of couveyance, see "2 Prideaux Oonv. 411-422 ; 4 Davidson Conv. 585-632. 2 Bayley v. Mansell, 4 Mad. 220 ; Bowles v. Weekx, 14 Sim. 691 ; Oglander v, Oglandcr, 2 De G. & S. 3S1 : 12 Jur. 786 ; Holder v. Durbin, 11 Beav. 094 ; and sec Seton, 348, 361 ; Lemn, 649. 3 As to the various kinds of guardiansiiip of infants, see Macphti'tson on Infants, 2-114, liii-lxii. ; Chamberif on Infants, 64-80, 861 : 2 L. C. Eq. 563-570. As to the appointment of guardians by the Court of Chancery and its control over guardians, see Maephersmi, 95-151 ; Ix.-lxii. ; Chavi- bers, 81-105, 168-200. 862-4 ; 2 L. C. Eq. 570-588 ; Seton, 702, and the late rule of our Court. 4 For the origin and history of this jurisdiction, see Co. Litt. 89, a Margrave's note (70), sec. 16 ; 2 Fonb Eq. 226, n.; F. N. B. 232 ; Story Eq. Jur. sec. 1327, et seq.; Macpherson on Infants, 96 ; 1 Spence^ Eq. Jur. 611, et seq ; Wellesley v. Duke of Beaufort, 2 Russ. 120 ; S. C. noin. Welles- ley V. Wellesley, 2 Bligh, N. S. 124 ; Ex parte Birchell, 3 Atk. 813 ; Re Bond, 11 Jur. 114, V. C. K. B. ; Jones v. Pou'ell, 9 Beav. 346 ; lie Neale, 16 Beav. 260; Carr v. Living, 28 Beav. 641, INFANTS — PROTECTION OF PEOPEKTY, ETC. 1385 In a suit for the purpose, (amongst other things) of having a guardian appointed, it is not the course of the Court to direct a reference to the Master to appoint a Guardian, but only to approve of one to be afterwards appointed by the Court if it sees fit. It is irregular to give a reversionary guardianship of wards of Court to the successors in office of any named person. ^ Where a suit is instituted for the direction of the Court in relation to the estate or person of an infant and for his benefit, or for the administration of property in which he is interested, the infant, whether plaintiff or defendant, becomes a ward of Court the instant that the suit is commenced.^ In this character, he is considered to be under the particular care of the Court; and he is equally entitled to its protection, whether he is under the immediate tutelage of a father, of a statutory or common law guardian, or of a guardian appointed by the Court ; but the Court does not assume to itself the actual guardianship of infants^ The Court will, upon the petition of the Guardian duly appointed by the Court of Probate or Surrogate interfere summarily, and order the person of the infant to be delivered into the custody of such Guardian, when there is danger of the infant being removed out of the jurisdiction, although no suit is pending in Court respecting the infant's Estate.* The provisions of the Provincial Stat. 22 Vic. ch. 93 have not the effect of excluding the jurisdiction of this Court, in respect of the appointment of Guardians to infants. ° On a bill by a wife for alimony and the custody of children who are under twelve years of age, the Court has jurisdiction to grant the latter relief with- out a petition. ^ There was a contest in a Surrogate Court between the step father and uncle for the guai'dianship of a child of ten or eleven years old; the child preferred her step-father, and the Surrogate Court appointed him guardian ; but this Court on appeal, being 1 Murphy v. Lanphier, 12 Grant, 241. 2 Macpherson, 103 ; Rughes v. Science, ib. App 1 : Ambl. 302, Ed. Blunt, n.; 2 Eq. Ca. Abr. 756, pi. 14. 3 Maep/ierfion, 103 ; and see Stor/j Eq. Jur. sec 1352 ; Eyre v. Counteaa of Shaftsbury, 2 P. Wms. 118 : Goodall v. Harris, 2 P. vv'ms. 560, 562 ; Butler v. Freaaaii, Amb. 302 ; Hughes v. Science, ubi sup.; Wright v. Naylor, ;i ilad. 77 ; ^'elledey v. Welleslcy, and S. C. nom. Wellesley v. Duke of Beaufort, 2 Bligh N. S. 124, 2 Russ. 120 : Oynn v. Gilbard, 1 Dr. & S. 356 : 7 Jur. N. S. 91 ; Stuart v. Moore, 4 Macq. H. L. 1 ; 7 Jur. N. S. 1129 ; S. S. nom. Marquis of Bute v. Stuart, 2 Giff. 582 : 7 Jur. N. S. 355. It seems, also, that ii no suit is pending;, an infant may be made a ward of Court, on a petition presented forthat purpose : Re McCuUochs, Dni. 276 ; see also lie Bishop, Macpherson, App. 5. 4 Re Gill'ie, 3 Grant, 279. 5 Re Stannard, Infants, 1 Cham. Rep. 15, 6 Munro v. MunrOf 15 Grant, 431. 1386 PROCEEDINGS IN THE MASTER'S OFFICE. satisfied from the evidence that it was for the real interest of the child that the uncle should be guardian, revised the order below. ^ The Court has an absolute right in its discretion to give the custody of a child under twelve years of age to the mother. The Court ex- ercised this right where the only evidence that the parents were living apart through the fault of the husband, was the evidence of the wife ; holding, that the (fJourt might, in its discretion, in the interest of the child, direct the custody to be given to the mother in cases where the cause of her living apart is on her own statement justifiable ; and the Judge is not prepared to say that he disbelieves such statements. 2 Where a fund, in which a female infant was interested, had been paid into Court under the Trustee Relief Act,^ and an order made for maintenance thereout, it was held that she thereby became a ward of Court.* In order that the benefit arising from the j)rotection of the Court may be extended to all cases in which interference is desi- rable, it is permitted to any person to commence proceedings on behalf of infants ; subject, however, to the risk of incurring the censure of the Court, and of being compelled to pay the costs of the suit, in the event of its subsequently appearing that the pro- ceedings were improperly instituted.^ So far as the jurisdiction of the Court relates to the appoint- ment of guardians and the protection of the persons of infants, it does not seem absolutely necessary to allege, as a foundation for the interference of the Court, that the infant is possessed of pro- perty ;" but there can scarcely occur a case where the Court can be called upon to interfere, unless the infant is possessed of some property. According to Lord Eldon, in Wellesley v. The BuJce of Beaufort,'' the Court is not in the habit of exercising jurisdiction over the persons of infants, except in cases where the existence of 1 Re Irwin, 16 Grant, 4«1. 2 Se Davis, 3 Cham. Rep. 277. 3 10 & 11 Vic ch. 96. This statute is in force in this Province — per Strong, V C, Jifi Wade, 18 Grant, 487. i Re Hodges, S K. & J. 213 : 3 Jur. N. S. 860 ; and see Re Hoare, 4 Gifl. 254. 6 Starten v. Rartholomew, 6 Beav. 143 ; Sale v. Sale, 1 Be«v. 686 ; Fox v. Suwerkrop, 1 Be»T. 683 ; Raven V. Kerl, 2 Phil. 692. 9 Re Spence, 2 Phil. 247, 252 ; Re Fynn, 2 De G. & S. 4S7 481 ; and see Bope T. Hope, 4 De G. M. & G. 328,343. 7 2 Euss. 20, 21. INFANTS — PROTECTION OF PROPERTY, ETC. 1387 property has brought them within the power of the Court ; but it is not from want of any jurisdiction that it does not act, but from want of means to exercise its jurisdiction, because the Court cannot take upon itself the maintenance of all the children in the kingdom. It can exercise this jurisdiction usefully and practically, only where it has the means of doing so, that is to say, by its having the means of applying property for the use and mainten- ance of the infants. Where, however, the infant was the child of an English father, who had been naturalized in America, the Court appointed guardians for her, although her property was real estate situate in America, and she had been clandestinely removed thence by her paternal relatives, in breach of an injunction from an American Court restraining her removal, and guardians had been appointed in America.^ ' Where a suit has been instituted by bill relating to property in which infants are interested, and guardians or maintenance are required, it is usual for the decree to give leave to the infant to make such application in Chambers for the appointment of a guardian, and for an allowance for maintenance, as be may be advised,'^ in which case, the decree is prosecuted in the usual manner. An application in a suit, whether commenced by bill or adminis- tration order, may also be made at Chambers, at any time, for the appointment of a guardian, an allowance for maintenance, or matters connected therewith. If the infant is a party to the suit, the application is made by an ordinary motion. If he is not a party the first application is made by a petition in the form used for pro- ceedings originating at Chambers, which is intituled in the matter of the infant by his next friend, and in the suit ; but subsequent applications in the same matter and suit are made by an ordinary motion. In a suit for maintenance out of the property of the infants, the Master is usually directed to inquire and state what would be a 1 Be Dawson, Dawmii v. Jay, 2 Sm. & G. 199 : S. C. nam. Dawson t. Jay, Re Dawson, I Jur. N. S' 37 ; S De G. M. & G. 764 ; and see Johnstone v. Seatie, 10 CI. .V F. 42 ; .-i. C. nmn. Beatie V Johnstone, 1 Phil. 17, 30 . 6 Jur, 671 ; StmiH v. Moore, 4 Macq. H. L. 1 : 7 Jur. N.iS. 1129 ; S. C jwm. Marquis of Bute v. Stuart, 7 Jur. 356 : 2 Giff. 682. 2 Seton, 702 ; and form, Seton, 699, No. 1. 1388 PROCEEDINGS IN THE MASTER'S OFFICE. proper sum to allow : but no authority is givon for the payment until the report is brought before the Court for its approval — the object being the more eifectual protection of the interest of the infants.^ Where no suit is pending, the application should be made by petition under the summary jurisdiction of the Court.^ The petition must be in the form used for proceedings originating at Chambers ; and it is prepared, issued, and served, where the service is necessary, in the usual manner. The petition is intituled in the matter of the infant by his next friend : whose written authority to commence proceedings must be filed. Where the only object is the appointment of a guardian of the person, the appointment may be made under the summary jurisdic- tion of the Coui't, however large the property may be ; and there is no necessity for filing a bill.^ The fact of the father of an infant being alive, is not in itself a sufiicient reason to prevent the Court interfering, for, if a sufficiently strong case is made, a person will be appointed, without suit, to act as guardian during the lifetime of the father. In Ex parte Montfort, Lord Eldon said, " I have no doubt that, in certain cases, the Court will, upon petition, without a bill, appoint, not a guardian, which cannot be during the father's life, but a person to act as guardian ; though in modern times the Court has professed to be very cautious upon that."* Nor will the Court decline to appoint a guardian because the infant, being four- teen j^ears old, and entitled to real estate, has by deed appointed a guardian for himself ■' The Court of Chancery has jurisdiction over the custody of children of British subjects, although born and domiciled out of England ; and will, upon their coming within the, jurisdiction, 1 Murphy v. Lanphier, 12 Grant, 241, 2 It may be observed that, in such cases, ordinary jurisdiction by bill is not excluded except by ex- press enactment : Hyde v. Edwards, 12 Beav. 160 : though the party refusing to avail himself of the summary jurisdiction may liave to pay the costs : Thomas v. Walker, IS Beav 521 3 Re Duke of Newcastle, 16 Yes. 447, n. (b.) ; and see £x parte Moimtford, 16 Ves 446-447 4 16 Ves. 447. For form of order in such a cise. see Setun, 700, No. 3. The followmg cases may be referred to for tlie principles on which the Court appoints a person to act as guardian during the lifetime of the father : Wdcox v. Drake, 2 Dick, 631 ; Lyons v. Blenkin. Jac 246 264 and cases there cited ; WeUesley v. Dwlce of Beatifort, 2 Euss. 1 ; S. C. now,. Wellesley v. Wellesley 2 Bligh, N. S. 124 ; Re England, 1 11. & M. 499 ; Re Finn, 2 De G. !& S. 467 ; 12 Jur 71S ■ Thomas V. Roberts, SDe a. &.S.15S: Aium. 2 Sim. N.S.rA:^ ^■"^'- "'• -^'""""^ 6 Cohan V. Cohan, 13 Sim. 639. INFANTS — APPOINTMENT AND REMOVAL OF GUARDIANS. 1389 appoint guardians for them ;^ and tlxe Court will appoint a guar- dian for an infant who is out of the jurisdiction, if his property is situate here, or under the control of the Court ; but it is usual to require that the parent or one of the guardians, should be within the jurisdiction.^ By the 12 Car. II., ch. 24, it is provided that the father of any child under the age of twenty-one years, and not married at the time of his death, mayj whether such father is within the age of twenty-one years, or of full age, by deed or by will,^ dispose of the custody and tuition of such child in such manner as he shall think fit, for and during such time as he or they shall respectively remain under the age of twenty-one years, or any lesser time, to any per- son or persons in possession or remainder. And such disposition of the custody of such child will be good and effectual against all persons claiming the custody or tuition of such child as guardian in socage or otherwise ; and such person or persons to whom the custody of such child is so disposed or devised, may maintain an action of ravishment of ward or trespass against any person or per- sons who may wrongfully take away or detain such child, and may recover damages for the same in the said action for the use and benefit of such child. And such person or persons to whom the custody of such child is so disposed or devised, may take into his or their custody, to the use of such child, the profits of all lands, tenements, and hereditaments of such child, and also the custody, tuition, 'and management of the goods, chattels, and personal estate of such child till his age of twenty-one years or any lesser time, according to such disposition as aforesaid, and may bring such action or actions in relation thereunto as by law a guardian in common socage might do.* The 12 Car. II. ch. 24, only enables the father to dispose of the custody of his unmarried children ; but it seems that, if a male child be unmarried at the time of the death of his father, the testamen- tary guardianship does not determine until he attains the age of 1 Johnstone v. Beatie, Dawson v. Jay, and Stuart v. Moore, ante; Hope v. Hope, i De G. M. & G. 328 ; and see Dawson v. Jay, Re Dawson, 3 De G. M. & G. 764, as to a guardian taking; an infant ward out of the jurisdiction. 2 Logan v. Fairlee, Jac. 193 : Lockwood v. Fenton, 17 Jur. 127, V. C. S. ; and see Stephens v. James, 1 M. & K. 627 ; De Weever v. Rochport, 6 Beav. 391. 3 The guardian himself may be one of the attesting witne.sses : Morgan v. Hatchell, 19 Beav. 86 : 1 Jur. N. S. 125. 4 Sees. 8, 9, 10. Formerly a Roman Catholic could not be a guardian, but the disqualification was removed by the 10 Geo. IV ch. 7. 1390 PROCEEDINGS IN THE MASTER'S OFFICE. twenty-one years, notwithstanding his marriage ;^ though in such a case, the guardianship of a female would necessarily determine by marriage.^ The Act confers authority upon no person except a father ; and with respect to a father, it has reference only to legitimate children.^ A testamentary guardian is subject to the control of the Court, * both with respect to the property and the person of the infant ;^ and the Court may remove him and appoint another guardian in his stead, or may, without removing him, appoint another person to have the care of the infant." As a general rule, however, the Court does not remove testamentary guardians, but makes orders to regu- late their conduct.'' Although the Court is in the habit of paying respect to the wishes and directions of a testator in reference to the guardianship and care of his children, it will not do so where it is clearly shown that a oompliance therewith would be prejudicial to the happiness and moral training of the infants.* Where a testamentary guardian has once taken the trust upon him and acted as guardian, if it is sought to remove him for miscon- duct, a bill must be filed ; but not where he has declined to act ; for that is as if there had been no appointment of him as guardian. ^ In such cases, a guardian should be appointed, in a summary way ; and the mere circumstance of a dispute concerning the person to be appointed guardian is no reason why the application should not be made without suit :'^" although it is a reason why no order should be made without an inquiry .^^ Upon the application for the appointment of a guardian, evidence must be adduced to show : the ages of the infants ; the nature and 1 Earl of Sfutftsbury's case, cited 3 Atk. 625. 2 Jlendes v. Mmdes, 1 Ve3. S. 91. 3 Ward V. St. Paul, 2 Bro. C. C. 683 ; Peckhamv. Peckliam, 2 Bro. C. C. 683, n.: 2 Cox, 46 ; Chat- teris V. Young, IJ. & W. 106 : Macpherson, 87 ; Chambers^ 38. 4 Duke of Beaufort v. Berty, 1 P. Wins. 703, 704. ,-1 Talbot V. Sari of Shrewsbury, 4 M. & C. 672 ; Witty v. Marshall, ] Y. & ". C. C. 68, 71 : Gardner V. Blane, 1 Hare 331, and case.s cited i6. 382, n. (a) ; Jones v. Powell, 9Beav. 345. 6 Roach V. Oarvan, 1 Ves S. 100 : Smith v. Bate, 2 Dicli . 631 : and see Ingham v. Biokerdike, 6 Mad. ' 275. 7 Roach V. Garvin, I Ves. S. 160. 8 Anonymous, 6 Gmut, 632. 9 Per Lord Rede.sdale, in O'Keefe v. Caaey, 1 Sell. & Lef. 106 ; and see Re McCullochs, Dru. 276. 10 Lady Teynham v. Lennard, 4 Bro. P. C. Ed. Toml. 302, cited in Eyre v. Countess of Shaftsbury, 2 P. W. 120 ; Ex parte Earl of Ilchester, 7 Ves. 348, 363; Be McCullochs, uM sjtp. 11 Beatie v. Johnstone, 1 Phil. 17, 30 : S Jur. 671 ; S. C. nmn. Johnstone v. Beatit, 10 01. & F. 42. INFANTS — APPOINTMENT AND REMOVAI, OF GUARDIANS. 1391 amount of their fortunes and incomes ; and what relations they have. What " relations " are to be included in the inquiry ia a matter of discretion in each case ; as a general rule, it should at least be shown what persons there are of or within the same degree of relationship as the proposed guardian ; and if the mother is pro- posed as a guardian, the evidence should extend to uncles and aunts on the father's and mother's sides. The petition should be served upon such relations : unless their acquiescence in the appointment of the proposed guardian is otherwise proved, or service on them is dispensed with. Evidence is also required of the fitness of the pro- posed guardian ; and his willingness to act should be proved by the production of his written consent. The usual evidence of fitness has sometimes been dispensed with : thus, where a reputed father had appointed, by will, a guardian to an illegitimate child, and no objec- tion was made, the Court acted upon such nomination without fur- ther evidence, and thereby carriad into effect that which the father intended, but could not strictly, by law, accomplish.^ So, also, the Court at once appointed a guardian upon the nomination of the infant, who was fourteen : he appearing himself in Court for the pur- pose.^ If the mother of the infant, or any other female, is appointed guardian by the Court, and marries after her appointment, her guardianship determines, and a new appointment is necessary ; but it seems she will usually be reappointed.^ So, also, where one of several guardians appointed by the Court dies, the right of the sur- vivors determines, and it becomes necessary to apply again to make a new appointment.* If, however, no objection appears, it is usual to reappoint the survivors.^ But in the case of testamentary guardians, even though there are no words of survivorship in the deed or will appointing them, the ofiice will, upon the death of one, sur- vive to the others.^ Where there is no suit pending which will enable the Court to take upon itself the management of the infant's property, a guardian 1 Chatteris v. Toung, IJ. & W. 106, and cases cited ; Macpherson, 109 ; and see Beatie v. Johmtone, I Phil 17. 30 : 5 Jur. 671. 2 Ex parte Edwards, 3 Atk. 519. 3 Re Gomall, 1 Beav. 347 ; Jones v. Powell, 9 Beav. 345 ; and see Anon., 8 Sim. 344. 4 Bradshaw v. Bradshaw, 1 Rnss. 528. 5 Hall V. Jones, 2 Sim. 41. 6 Eyre v. Cmmtesslof Shaftibury, 2 P Wms. 103, 107. 1392 PROCEEDINGS IN THE MASTER'S OFFICE. of the estate, as well as of the person, may be appointed on petition ; but where such suit is pending, a guardian of the person only will be appointed,'^ Formerly, it was considered that the Courthad no juris- diction to appoint a receiver of an infant's property, unless a bill was filed ;^ but this rule has been frequently relaxed in modem practice, and guardians and receivers have been appointed on peti- tion, without suit.^ The more usual course, however, is to appoint a guardian of the person and estate, without a receiver." The application must be supporteil by evidence, showing the nature, rental, or income, and other material particulars of the estate, and also the fitness of the proposed guardian, and his consent to act. It is usual to appoint the same person to be guardian of the estate, as of the person c>f the infant ; but this rule is sometimes departed from.'' The person appointed guardian of the estate must, ordinarily, give security duly to account, in the same manner as a receiver. The amount of the security is regulated, as in the case of a receiver, by the sum which the guardian is likely to receive during the currency of his periodical account. Where, however, the property is small, the Court has sometimes been satisfied with the under- taking of the guardian to account ■,^ and v/hcre the estate consists exclusively of i ealty or leaseholds, the whole of the rents of which are allowed to the same guardian for the infant's maintenance, a recognizance is not generally required. The appointment is com- pleted, and the guardian's accounts passed, in the same manner as in the ease of a receiver. An application to remove a guardian of the person or estate, or to supply a vacancy occasioned by death, or by the marriage of a female guardian, should be made by motion, supported by evidence of the facts which render the application necessary, and of the fit- ness of the proposed guardian, and his consent to act. 1 See 2 L. C. Eq. 672 ; Macpherson, lOf.. 2 Ex parte WhitfiHd, 2 Atk. 316 ; Ex parte Mumit/ord, 15 Vea. Ui. 3 Setoii, 705, and cases there cited. 4 Ibid 5 See S.-tiin, 701. 6 Jie Sidirtghaut, cited Seton, 706. INFANTS — APPOINTMENT AND REMOVAL OF GUARDIANS. 1393 When the persons of infants are, by due and pioper course of law, brought before the Court, it will take especial care that they remain within its jurisdiction, and obey its directions therein ; and will not in general, whether they be actually wards or not, permit them to be taken, or go out of it.^ Under special circumstances, however, the Court has permitted infants to go out of the jurisdic- tion, for the purpose of temporary, or even of permanent residence there, or, when already abroad, to remain there, under restrictions whereby their property and their education, and marriage still remained within its control ; but this must be on the ground of undoubted advantage to the infants, and on the responsibility of the guardian for the proper care of their persons ; and the Court must be satisfied, if possible, that they will at the proper period be brought again within its power.^ For this purpose, Ireland,^ and Scotland,* are looked upon as foreign countries.^ An application for leave to remove an infant out of the jurisdic- tion may be made by motion supported by affidavit of the grounds on which such removal is deemed proper.^ The person taking the ward out of the jurisdiction usually signs an undertaking, indorsed on the notice of motion,^ to bring him back by the time prescribed by the Court ; but this rule is occasionally relaxed in practice ; and the undertaking of counsel has been sometimes considered sufficient.* In Lethem v. Hall? a recognizance was entered into by the guardians, to bring the infant within the jurisdiction when- ever required, on his being placed at the University of Dublin. Maintenance and Advancement. — Where there is a fund in Court, or under the control of the Court, belonging to an infant, or the income whereof is applicable to his maintenance, an application may be made, by motion, for an allowance thereout for such main- tenance. 1 Chambers, 26 ; and see Maepherson, 129-132 ; 2 L. C. Eq. 688 ; Seton, 719-721. 2 Chambers, 28 ; Maepherson, 129 : Stephens v James, 1 M. & K. 627 ; Wyndham v. Lord Ennis- more, 1 Keen, 467 ; Campbell v. Maekay, 2 Ar. & C. 31-38 ; Talbot v. Earl Shrewsbury, 4 M. & C. 672 ; and see Re Bentley, cited Seton 720 ; and also Jac. 265. 3 Lethem v. Hall, 7 Sim. 141. 4 Mountstvarty. Uountstinart, 6 Ves. 3ii8; 1 Hov. Sup. to Ves. J. 603. 5 Chambers, 28. 6 For forma of orders, see Seton, 719-720 ; 4 M. & C. 677 : Maepherson^ App. 18. 7 Or written in tlie Registrar's booli, wliere the application is made m open Court : see Seton, 719, No. 1. 8 Maepherson, 132. 9 7 Sim- 141. 64 1394 PROCEEDINGS IN THE MASTER'S OFFICE. For the purpose of providing for the maintenance of infants during minority, out of property held in trust for them, it is custo- mary to insert in settlements, express powers, authorising the legal holders of the funds to apply either the whole or some portion of the income or capital for the maintenance and advancement of the infants, according to such conditions as may be considered con- venient. In the absence of any such powers, the income of an infant's estate may be applied towards his maintenance ; and such payments (if clearly necessary,) would be allowed the trustee or guardian in passing his accounts.^ The practice of ordering maintenance, without suit, is more recent than that of so ordering the appointment of a guardian. According to Lord Hardwicke, Sir Joseph Jekyll was the first judge who went so far in this summary way as to direct an allowance for mainten- ance : before his time, the Court would do no more than appoint a guardian in socage, till the infant had attained his age of fourteen. - The practice, however, though completely established, was con- sidered to be confined to cases where the income of the infant was small : in other cases, it was deemed necessary that a bill should be filed.^ The more recent cases show that this rule no longer exists ; and that the distinction, which formerly subsisted, between the cases where the income of the infant was derived from real estate, and where it was derived from personal estate, has been abolished. * Where, however, the infant's right to maintenance is doubtful, a bill should be filed." As a general rule, the Court will not, during the lifetime of the father, order maintenance for his children out of their property : as it is his duty to support them.^ When, however, the father is not of sufficient ability to educate them according to their estate, an allowance for their maintenance will be authorised ;^ and for this 1 See Prince v. Bine, 26 Beav. 634. 2 Ex parte Ricardn, 3 Atk. 519. 3 See Ex parte Mountfort, 15 Ves. 445 448 : Ex parte Lakin, 4 Rusij. 307 ; Re Molesworth, 4 Buss. 308. 4 Ex parte StarHa, 3 Sim. 339 ; Re Christie, 6 Sim 43 ; Ex parte Angell, 13 Sim. 258. 5 Fairinan v. Green, 10 Ves. 45-47 ; Corbet v. Tottenham, 1 B. & B. 60. G Jackson v. Jackson, 1 Atk. 515 ; Fawkner v. Watts, ib. 408 ; Butler v. Butler, 3 Atk. 60 : Darley V. Darley, ib. 399; Andrews v. Partington, 2 Cox, 223; Thompson v. GriMn, C. & P. 317; Kekewich v. Langston, 11 Sim. 291, 303, 305. 7 Fendall v. Nash, 5 Ves. 197, n. (a) j Cavendish v. Mercer, ib. 195, n. (a) ; Errat v. Barlow, 14 Ves. 202 ; Jervoise v. Silk, G. Coop. 52 ; Ex parte Willinms, 2 Col. 740 ; Luchnow v. Brovm, 12 Jur. 1017, V. C. W. INFANTS — MAINTENANCE AND ADVANCEMENT. 1395 purpose, it is not necessary that the father should be absolutely without the means of supporting his children : an order for main- tenance may be made, if his circumstances are such as to prevent him from educating them in a manner suitable to the fortune they have a right to expect.^ The rule that, if a father is of sufficient ability, he must educate and maintain his children out of his own fortime, applies, even though the gift of the property to them con- tains provisions authorising their maintenance thereout : unless it is expressly given to their father for that purpose.^ This ground of exception is thus stated by Lord Thurlow, in Arulreivs v. Parting- ton ■? " If the will had given the dividends to the father for the maintenance of the children, it would have amounted to a legacy of the dividends to the father : which he would have been entitled to, though he had not spent half of it in the children's maintenance." This distinction was also acted upon by Sir Lancelot Shadwell, V.C., in Hawkins v. Watts,^ where a testator gave a share of his personal estate to his son in-law, in trust to apply the same for the mainten- ance of his children by the testator's daughter ; and it was held that the son-in-law was entitled to apply the interest of the share for his children's maintenance, notwithstanding he might be of ability to maintain them. Another exception to the general rule, rendering it incumbent upon a father to maintain his children, exclusively out of his own property, occurs where the father has contracted that certain property should be applied to that purpose ;^ but before he can be entitled to this benefit, he must show that such was his contract.® In general, the Court will not direct a sum to be paid for main- tenance out of the capital of the infant's property. If, however, the infant has no other means of subsistence, or it can be shown to be necessary for his advancement in life, the capital may be broken into.' 1 Buchworth v . Buchviorth 1 Cox, 80. 2 tfughss V. Hughes, 1 Bro. C. C. 387 ; Andrews v. Partington, 3 Bro. C. C. 60 ; Mundy t. Earl Howe, 4 Bro. C. C. 224 ; White v. Orane 18 Beav. 571. 3 2 Cox, 223, 22:i : 3 Bro. C. O. 60 ; but see Hoste v. Pratt, 3 Ves. 730. 4 7 Sim. 199. 5 Stocken V. Stocken, 4 M. & C. 95, 98 ; and see S. 0. 4 Sim. 152 : 2 M. & K. 489 ; IVundy v. Earl Howe, 4, Bro. Bro. C. C. 224 ; Meacher v. Young, 2 M. & K. 490 ; Birch v. Suinner, 3 Jur. N S. 712, V. C. W. 6 Thompson v. Griffi7i, C. & P. 317, 3>1. 7 Ex parte Green, IJ. & W. 253 ; Ex parte Swift, 1 R. & M. 575 ; Ex parte Chambers, ib. 577 ; Clay V Pennington, 8 Sim. 3.59 ; Fentiman v. Fentiman, 13 --im. 171 ; Bridge v. Brown, 2 Y. & C. C. C. 181 : Ex parte Hays, 3 De G. & S. 485 ; Re Lane, 17 Jur. 219, M. R. : Walsh v. Walsh, 1 Drew. 64 ; and see Worthir^ton v. McCraer, 23 Beav. 81 ; Prince v. Hine, 26 Beav. 634 ; Seton, 704 ; Macpherson, 252-6 ; Chambers, 364. 1396 PROCEEDINGS IN THE MASTER'S OFFICE. Although, as a general rule, the Court will not break in upon principal money for the maintenance and education of infant legatees, still in a proper case the Court will so apply it as well as to the advancement of the infant.^ A step-father's claim to be paid for past maintenance of a minor out of her capital, was rejected on the ground of his misconduct. A step-father is under no obligation to support the child of his wife by her former husband.^ The Master has no authority to make an allowanae for the maintenance of an infant not directed by the decree, however reasonable it may appear to him to be. His proper course is to report the circumstances specially, and the party, claiming to be entitled can apply to the Court on further directions.^ Where a legacy bequeathed to an in- fant had been paid into Court the interest thereon was ordered to be paid out as it accrued, for the education and maintenance of the in- fant on its being shewn that the money was required for these pur- poses.* In a proper case trustees may be allowed payments made by them for the maintenance and education of children, out of their capital. Under a general administration decree the Master may, without any special directions, take evidence as to payments by executors for the maintenance and education of infants out of their shares of capital, and report the facts.^ It is for the discretion of the Court, in view of all the circumstances whether to allow for past maintenance out of the coi-pus of an infant's estate not intended by a testator to be so applied. A farmer by his will gave to his widow his goods and chattels absolutely ; also an annuity, and the use of his homestead and other real estate during her widowhood. She married again and claimed to be paid for the past maintenance of the testator's children from the time of his death out of the corpus of the estate devised to them at twenty-one, and otherwise. The Court on further directions refused to allow the claim.** [Where a testator bequeathed part of his residuary estate to two infant lega- tees, directing the interest to be applied to their support and educa- tion until twenty-one years of age, or such previous time as the trustees might see fit to pay over the same to the legatees ; and that in the case of the death of either, the whole should be paid to the survivor ; the will containing no gift over in 1 AsKbauxjh v. Ashbaugh, 10 Grant, 430. 2 Fielder v. O'Hara, 18 Grant, 610. 3 Fielder v. O'Hara, 2 Cham. Eep. 255. 4 Griffln v. ifcOM, 2 Cham Rep. 318 5 Stewart v. FletcherM Grant, 236. Edwards v. Durgen, 19 Grant, 101. INFANTS — MAINTENANCE AND ADVANCEMENT. 1397 case of the death of both ; the Court held that the trustees and executors had a direction to apply part of the principal to the sup- port and education of the legatees. In such a case the executors and trustees presented a petition under the statute 29 Victoria, ch; 28, sec. 31, and it appearing that the parents of the legatees had aban- doned them ; that the legatees had no other means of support ; and that the interest on their share of the residuary estate was inad- equate for their support. The Court made an order approving of the application of part of the principal to supply the deficiency.^ [In proceeding under 12 Victoria, ch. 72, the mother of the infants was appointed guardian, and the sale of the greater part of the real estate of the infants was ordered, which was accordingly effected, but no investment of the surplus was made, although that course was directed by the order; the. whole of such proceeds to- gether with $5,321 in addition were expended in the support and education of the infants. The guardian thereupon applied for an order to sell the remainder of the real estate. The Court refused the application ; notwithstanding that the Master reported the amount claimed was a proper sum to be allowed^ [Maintenance under the statute — Consolidated Statute, Upper Canada, ch. 74, sec. 8 — can only be ordered where the infant is under twelve years old, and is transferred by the Court to the mother's custody.^ A testa- tator bequeathed a legacy to an infant daughter, payable on her at- taining twenty-one, and charged the same on the shares of two of the devisees; but the wiU was silent as to interest upon the legacy : Held, that the infant was entitled to maintenance out of the estate of the testator, during her minority, to the extent, if necessary, of the interest on the legacy ; and an inquiry as to the ability of the widow of the testator to maintain the infant was refused.* By a deed of trust certain lands were conveyed to trustees for the benefit of an infant, to whom the trustees were to convey in fee on her at- taining twenty-one : Held, that the infant took a vested interest ; and the Court directed an inquiry as to her past and future main- tenance.^ It is clear that it is the duty of the mother remaining 1 Re McDougall, 14 Grant, 609. 2 Re Hunter, 14 Grant, 680 ; and see Walmesly v. Bull, 1.5 Grant, 210. 8 Re Eves, 16 Grant, 580. 4 Binkley v. Binkley, 15 Grant, 649. 5 Stewart v. Glasgow, 15 Grant, 653 ; and see Denison v. Denison, 17 Grant, 219, affirmfid on appeal, 18 Grant, 41. 1398 PROCEEDINGS IN THE MASTER'S OFFICE. unmarried after the death of her husband to maintain her child- ren. ^ But there is no rule requiring the mother to maintain her children; and therefore, it has been held that if the father is not of suiBcient abilitj'^,^ or is dead,^ maintenance will be allowed without refer- ence to her ability. An application at Chambers for the allowance of maintenance is made by an ordinary notice of motion, in cases where a suit or matter is pending ; in other cases it it made by petition in the form used for originating proceedings at Chambers. The notice of motion must be served on the trustees, or other persons interested in the fund out of which the maintenance is to be paid ; and must be supported by evidence, showing that the income or corpus of the fund is applicable to the purpose. A scheme, show- ing the heads of the intended expenditure, should also be put in evidence. If an increase of the allowance is afterwards required, the appli- cation for it is made by an ordinarj^ motion supported by an affidavit showing the necessity for the increase. The notice should be served on the trustees or other persons above mentioned. Where, on the hearing of the cause, directions are given as to the appointment of guardians, or an allowance for maintenance an inquiry what is proper to be allowed for the maintenance of the infant, and out of what fund the allowance ought to be made, will be directed.* The guardiaii will usually be allowed any costs he may have incurred, as between solicitor and clien t ; but any sums which he has expended, and which would not be allowed under that head, should be mentioned at the hearing of application : in which case, if necessary, a special direction will be given in the order concerning them.^ 1 Per Spragge, C, Binkley v. Binkley, 16 Grant, 650. 2 Baley v. Bannister, 4 Mad 276, 280 ; Cavendish v Mercer, 6 Ves. 195, n. (a). But see Per Spragge, C, Binkley v. Binkley, 16 Grant, 660. 3 Douglaa v. Andrews, 12 Beav. 310 ; and see Lanoy v. Duke ofAthol, 2 Atk. 447; Bx parte Lord Petre, 7 Ves. 403 ; Macpherson, 224 ; Chatiiiers, 114. 4 See forms of ordes in Seton, 700, 701. 5 In general, past maintenan e will not be ordered, unless a strong case for it is made : see Hill v. Chaynian, 2 Bro. C. C. 231 ; Sherwood v. Smith, 6 Ves. 464 : Ex parte Band, 2 M. & K. 439 ; Clay V. Pennington, P Sim. 369 ; Stopford v. Lord Canterbury, 11 Sim. 82; 4 Jur. 842; Bruin v, Knott, 1 Phil. 672 ; 9 Jur. 979 ; 12 Sim. 466 ; 6 Jur. 886 ; Lygon v. Lord Cmentry, 14 Sim. 41 ; "" "^ 1 V. Lawry, 2 Y. & C. C. C. 87-70; Re Lane, 17 Jur. 219, M, E. INFANTS — MAINTENANCE AND ADVANCEMENT. 1390 It may be here mentioned, that where the infant and her father were resident abroad, the Court made an order, that upon the father appointing an attorney to receive the maintenance, the dividends of a fund in Court should be paid to the attorney half- yearly, upon the production to the Accountant-General of an affidavit by the father that he had duly applied, in the maintenance and education of the infant, all monies received by him on that account to the time of making the affidavit -^ and where the infant resided in the United States with her guardian, appointed by a foreign Court, the dividends of a fund of £531 in Court here, were ordered to be paid to her solicitor ; he undertaking to remit them to the guardian.^ ^ Where a person of weak or unsound mind, who has not been so found by inquisition or other proceedings in lunacy, has property under the jurisdiction of this Court, the Court may, without the aid of the jurisdiction in lunacy, appoint a person to act as guardian of the person, or person and estate, of the lunatic : and may order the income of his property to be applied for his maintenance f or may even direct the corpus of such property to be applied in repaying past advances for maintenance.* The application, in such case, is made by petition, supported by similar evidence to that required in the case of infants ; and by affidavits showing the state of mind of the lunatic, that he is unable to manage his affairs, and that he has not been found lunatic by proceedings in lunacy.* As long as guardians of the person, or other persons having an allowance for maintenance, duly maintain the person intrusted to their care, they are not accountable for their expenditure.^ In settlements it is customary to insert express powers authorising the application of the whole or some portion of the 1 Re Weeverv. Rockport, 6 Beav. 391, and cases ib. 892, n. (bj ; and see Seton, 719, 720. 2 Re Mm-riion, 16 Sim. 42 : 11 Jur. 984 ; and see Volam v. Carr, 2 De G. cSr S. 242, where the infant had heen found of unsound mind by a foreign Court. 3 WilH7ison v. Letch, 2 C. P. Coop. t. Cott, 195 ; Volam v. Carr, vbi mp.; Re Berry, 13 Beav. 456 ; Re Burke, 2 De G. F. & J. 124 ; 6 Jur. N. S. 717 : Re Tayler, 2 Dc G. F. & J. 125; Re Ward, 6 Jur. N. S. 717, L. JJ. ; Re Maofarlane. 2 J. & H. 673 ; 8 Jur. N. S. 208 ; Re Bignell, cited Seton, 710 ; and see Re SpUler, 6 Jur. N. S 336, L J J. In Re Sturge, 5 Jnr. N. S. 423 : 7 W. R. 396, M. R. , an annual statement was directed to be made to Chambers of the lunatic's state of mind and property. ^^ 4 Re Law 7 Jur. N. S. 410, V. C W. ; Re Macfarlane, 2 J. & H. 673 : 8 Jur. N. S 208 ; WilKams v. A lien, 33 Beav. 241 : and see Peters v. Orote, 7 Sim. 288 ; 2 C. P. Coop. t. Oott 192. 5 For forms of orders, nee Seton, 709 710. 6 Jodrell v. Jodell, 14 Beav. 397 ; and see Leach v. Leach, 13 Sim, 304 ; Carr v. Living, 28 Beav. 644-647. 1400 PROCEEDINGS IN THE MASTER'S OFFICE income or capital of each child's expectant or apparent share for the advancement of such child ; and in the absence of express power, a like application for the infant's share may be made by the trustee without the sanction of the Court, where the same, if ex- pended for maintenance, would not have been allowed him.^ Where the fund out of which the advancement in to be made is in Court, or the infant is a ward of Court, or the administration of his estate, or his maintenance, is under the direction of the Court, an allowance for the purpose of purchasing iiim a commission in the army, or binding him apprentice, or otherwise for his advancement, may be applied for by petition, supported by affidavit or other evidence showing the amount required to be advanced, the wishes of the infant, and his fitness for the profession, trade, or business selected.^ Where it is proposed to article or apprentice the infant, the respectibility of the intended master, and the propriety of the premium, are als* usually required to be shown by affidavit. The articles or indentures of apprenticeship are usually settled at Cham- bers, or before the Master in the ordinary way ; and where the amount advanced is to be paid out of a fund in Court, it is usually necessary that the execution of the articles should be certified by the master.^ Provision is sometimes made by the articles for the return by the master of a portion of the premium, in the event of either the master or the infant dying during the term. Mmiagetiient of Property. — The Court exercises a vigilant care over guardians of the estate in regard to the management and disposal of the property of infants ; and will carry its aid and protection in favour of infants so far as to reach other persons than those who are guardians strictly appointed ; for, if a man intrudes on the estate of an infant, and takes the profits thereof, he will be treated as a guardian, and held responsible for the same to the infant in a Court of Equity.* 1 Levnn, 386. As to advancement for infants, see Chambers, 380-8, 821; Macphersmi, 253, 255, 335-7 XXXI. : Seton, 704. 2 For fonn of order to purchase a commission in the army, see Setmi, 708, No. 9. 3 For form of order, see Seton, 709, Where the amount is small, the drawing up of the order is sometimes deferred till after the articles have been executed, as, by so doing, the expense of a certificate of approval and of execution may be saved ; see Wenn v Wenn, M. R. in Chambers, 30 June, 1865, Reg. Lib., B. 1774. 4 Story Eq. Jur. sec. 1356 ; Scwburgh v. BicJcerstaJf'e, 1 Vern. 295 ; Gary v. Bertie, 2 Vern. 322 Bennet v. Whitehead, 2 P. Wms. 645 ; Morgan v. Morgan, 1 Atk. 489 ; West, 265; Dormer v. Frotescue, 3 Atk, 130 ; Pulteney v Warren, 6 Ves. 89: 1 0. P. Coop. t. Cott. 480; Wyllie v. EUice, 6 Hare, 605 ; Blomfield, v. Eyre. 8 Beav. 260 : 9 Jur. 717 ; Nanney v. Williams, 22 Beav. 643, 469 ; Seton, 687. As to the management of the estates of infants by the Court, see Chambers 508- 96 ; Macpherson, 330-347. INFANTS — MANAGEMENT OF PROPERTY. 1401 There is some difficulty in determining with- precision the extent of the authority which is possessed by guardian of the estate of an infant, who has been appointed by the Court of Chancery. In the case of Ex parte Starkig} Sir Lancelot Shadwell, V.C, is reported to have said, that the order discharged the party making the payment, to the extent only of the allowance made ; and it has been inferred from this, that a guardian cannot give a valid receipt to a tenant, unless there is an order for maintenance to the full extent of the infant's fortune. The language, however, of the orders appointing guardians, both in ancient and in modern times, seems to show that the power over the estate is more extensive than what could be inferred from this case. Moreover, it is the custom to make the guardian enter into a recognizance to account for what he receives of the estate : which would be unnecessary if the appointment gave him no control over the property of the infant. The power of the testamentary guardian over the property of the infant, is more clearly defined : he derives his authority from an act of Parliament,^ and has control as well over the lands descended to the infant from his father, as also over all other the real and personal estate belonging to the infant. The statute, moreover, expressly authorizes him to bring all such actions in relation thereto, as, by law, a guardian in common socage might do. The testamentary guardian seems to possess, as an incident to his office, the power of making valid leases of the estate of the infant for the term of his guardianship, upon which ejectment can be maintained ; but a lease made by such a guardian to last beyond the minority of the ward is absolutely void, after the infant comes of age.' Although, however, the testamentary guardian possesses these legal rights over the estate of the infant, he is, in all respects, subject to the control of the Court, and liable to account for what 1 3 5*711.339. On referring: to the original petition in this case, and the order entered, Reg. Lib., 1829, B. 590, it appears that the infant's estate was vested in trustees, who had no power to ad- vance maintenance. It may, therefore, be supposed that the observation of the Viee-Chancellor referred only to a case where trustees in the possession of the estate make payments to a guardian of the person. It is obvious that in such a case the trustees would only be, discharged to the ex- tent of the allowance made for maintenance ; but it does not follow that a guardian of the estate, where there is no trustee, cannot give a receipt for the full amount of the infant's fortune. 2 12 Car. II. ch. 24. 3 Roe deiti. Pari-y v. Hodgsmi, 2 Wils. X36 ; Woodfatl, 41 ; Chamberi, 515. 1402 PROCEEDINGS IN THE MASTER'S OFFICE. lie receives. His rights and liabilities seem to be nearly the same as those of the guardian in socage, except that they continue until the infant is twenty-one, instead of terminating, as in the case of the guardian in socage, at fourteen. According to Lord Hardwicke, " It is at the peril of a guardian in socage what he applies for maintenance ; and he will be allowed according to the discretion he has used."^ From what has been stated, concerning the power of a guardian appointed by the Court over the estate, it may be inferred, that he has no power incident to his office of making a lease valid at law of any portion of the infant's estate ; nor is there any authority as to the circumstances under which a lease made by such a guardian, during the minority, would be supported in equity. Consequently, when a suit is instituted, it is usual for a receiver to be appointed, in which case, the estate is managed according to the practice hereafter stated. The Court, however, can not, imder its original jurisdiction, in such a case, enable a receiver to create any legal term in the land ; nor can it in any manner insure the occupation of the tenant, beyond the period of the infant's minority. Guardians will not ordinarily be permitted to convert the personal estate of infants into real estate ; since it may not only affect the rights of the infant himself, but also his representatives, if he should die under age. Guardians may, however, under special circumstances, where it is manifestly for the benefit of the infant, change the nature of the estate ; and the Court will support their conduct, if the act be such as the Court itself would have done, under the hke circumstances, by its own order.^ The act of the guardian in such case must not be wantonly done ; but it must be for the manifest interest and convenience of the infant ; and hence it is common for guardians to ask the positive sanction of the Court to any acts of this sort. Where the Court orders any such change of property, it directs the new investment to be in trust for the benefit of those who would be entitled to it, if it had remained in its original state.^ This object may be attained by 1 Ex parte Whitfield, 2 Atk. 315. 2 Story Eq. Jur. sec. 1357 ; Inwood v. Twyne, Amb. 419. As to" the conversion of an infant's pro- perty, see MacphcTsm, 278-308 ; Chambers, 566-570 ; Seton, ('94-5. 3 Lord Ashburtoii v. Lady Ashburton, 6 Ves. 6 ; and see Tullit v. Tullit, Amb. 370 ; Sergeson r. Sealcy 2 Atk. 413 ; Exparte Phillips, 19 Ves. 122; Webb v.'Lord Sha/tsbury, 6 Mad. 100. INFANTS — MAINTENANCE AND ADVANCEMENT. 1403 conveying the land to a trustee, in trust for the infant, his executors and administrators, until he attains twenty-one, and afterwards foi- him and his heirs ;'^ or, by a conveyance to the use of the infant, his heirs or assigns, but if he dies under twenty-one, then to the use of trustees, upon trust to sell, and hold the purchase -money upon the trusts on which such money, and the income thereof, would have been held if the money had remained part of the infant's personal estate.^ The practice as to investmients in land, with the approval of the Court has been already stated. In cases where, if money belonged to an infant residing in Upper Canada, the Court would invest it for the benefit of the infant the Court will, where the infant is resident in a foreign country, direct the moneys to be invested for his benefit in the securities of such foreign country.^ The rule is that moneys belonging to infants are not ordered in equity to be paid to their guardian, whether appointed by the Surrogate Court or otherwise, but are secured for the benefit of the infants under the authority of the Court ; but the rule may not apply where the amount is small, and is required for the maintenance, education, or other immediate use of the infants, or where some other special circumstances exist justifying an excep- tion to the general rule.* In consequence of the danger to which the fortunes of infants are often exposed in private hands, the Court, on the administration of an estate, takes charge of the share going to infants, and invests the same for their benefit, instead of the amount being left in the hands of a trustee. Since the establish- ment of a Government Dominion Stock the investment of infants' money by the Court, should, as a general rule, be in such Stock, rather than, as formerly, in mortgages.^ A petition had been pre- sented for the sale of an infant's estate, fifty acres of land which produced $700 and upwards. On an application that the proceeds might be invested in the purchase of a farm, with the sanction of the Court, on which it seemed to be intended the father of the infant — a farm laborer — was to reside with the infant, the Referee refused to sanction the sale.® 1 6 Ves. 7. 2 This was the form adopted in Pym t. Pym, M. R. in Chambers, June, 1865. 3 Satibom v. Sanborn, 11 Grant, 359. i Mitchell V. Ritchey, 13 Grant, 445. 5 KirMsmill v. UUler, 16 Grant, 171 ; and see Stileman v. Campbell, 13 Grant, 454. 6 Re Mason, 3 Cham. Eep. 428. 1404 PROCEEDINGS IN THE MASTER'S OFFICE. Marriage, and Marriage Settlements. — If a ward of the Court, whether male or female, is desirous of marrying, application should be made to the Court for an order sanctioning the proposed marriage, notwithstanding that the infant has a parent or guardian. The order will not be granted unless it appears that the marriage is suitable, and that the settlement proposed is proper ;i and in order to prevent the improper marriage of a ward, the Court will, if there is reason to suspect that a marriage without its sanction is intended, interfere by injunction to restrain the marriage, and also communication between the ward and the intended husband or wife ; and if the guardian is suspected of any connivance, it will remove the infant from his custody to the custody of another person, and will restrain the guardian from giving his consent to the marriage without leave of the Court.^ The application in such cases is usually made by petition, supported by affidavit.' Hearsay evidence and declarations have weight with the Court on such applications, especially when uncontradicted by anything on the other side ;* and in an urgent ease, the Court will grant the injunc- tion on an ex parte application, on evidence of improper intercourse and connivance.^ Where a person marries a ward of the Court without its consent and approbation, such person, and all others concerned in aiding and abetting the act, will be treated as guilty of a contempt of the Court, and may be committed to priso'n : even though ignorant of the infant being a ward.® In such cases, an application may be made by petition,'^ of the infant, or of the guardian, or indeed of any other person, for an inquiry as to the validity of the marriage, and 1 2 L. C. Eq. 588; Siinth v. Smith, 3 Atk. 305 ; Earl of Plymouth v. Lewis, 2 Dick. 801. As to the marriage of wards of Court, and settlements thereon, see Macpherson, 191-209 ; Cha/mberSf 899- 901. 2 Story Eq. Jur. sec. 1360 ; Lord Raymoiid's Case, Ca. t. Talb. 58 ; Smith v. Smith, 3 Atk. 304, 306, 303 ; Beard v. Travers, 1 Ves. S. 313 , Tvnibes v. Elers, I Dick. 88 : Roach v. Garvan, ib.; Lord Shipbrook V. Lord Hinchinbrook, 2 Dick. 547 : Pearce v. Crutchfield, 14 Ves. 206. Formerly, where the Court committed the custody of an infant to any person, it required him to enter into a recognizance, conditioned that he should not permit the infant to marry without the consent of the Court : Davis' Case, 1 P. Wms. 698 ; Eyre v. Countess of Shaftshury, 2 P. Wms. 112; but this practice is not now adhered to : see forms of orders in Seton, 700, 701. 3 For forms of orders, see Seton, 727, 728, 7S2. 4 Beard v. Travers, 1 Ves. S. 313. 5 Seton, 728, No. 3 As to substituted service, see Pearce v. Crutchfield, 14 Ves, 206 ; Wortham v. Pemberton. 1 De G. & S. 644, 648. 6 Eyre v. Countess of Shaftsbury, 2 P. Wms. Ill : 2 L. C, Eq. 538 ; Herbert's Case, 3 P. Wms. 116; Hill V. Turner, 1 Atk. 515 • More v. More, 2 Atk. 157 : S. C. Tiom. Moor v. Moor, Barnard, 404; Butler V. Freeman, Amb. 301 ; Bathurst v. Murray, 8 Ves. 74 ; Nicholson v. Squire, IS Ves. 269 : Birkett v. Hibbert, 3 M. & K. 227 ; Re Walker, LI. & G. t. Sug. 299 ; Hodgens v. Hodgens, 4 01. & F. 323; Baseley v. Baseley, 4 Cl. & F. 378 ; Wortham v. Pemberton, 1 De G. & S. 644; Martin v. Foster, 7 De G. M. & G. 98: 1 Jur. N. S 337 ; Gynn v. Gilbard, 1 Dr. & S. 366: 7 Jur. N. S. 91. 7 Trevcna v. Juliff, M, R., 28 March, 1866, Reg. Lib. B. 613. INFANTS — MARRIAGE AND MARRIAGE SETTT.EMENTS. 1405 the approval of a proper settlement of the infant's fortune. The application must be supported by affidavit ; and the parties are usually ordered to attend personally in open Court, or in the Judge's private room, to answer the contempt.^ The Court also usually directs an inquiry to be made whether the marriage is valid ;^ and if it appears that it is, it will, in the case of a female ward, direct a proper settlement of her fortune to be made with the approval of a Judge in Chambers.^ An application to commit a husband may be directed to stand over, pending the approval and execution of the settlement.* If it is found that the marriage of a female ward is invalid, a valid marriage may be ordered f and a like course has been pursued in the case of a male ward.^ Upon the return of a warrant or appointment to proceed on the order, the inquiry as to the marriage is prosecuted ; the settlement approved ; and the result of the proceedings certified in the usual manner. ''^ When the certi- ficate has become absolute, any consequential directions may be applied for by petition. If the husband has been committed for the contempt, he may apply to the Court by petition,^ for his discharge, which wiU be granted on the settlement being executed, and the costs paid.^ An application for leave for a ward of Court to marry is usually made by petition : which is ordinarily presented by the intended husband whether he is the ward or not ■j^° but is sometimes presented by a female ward, by her next friend or guardian ; and sometimes by both parties.ii The petition should state the age of the ward ; the nature of his or her fortune; the contemplated marriage; and the age, rank, position in life, and fortune of the person to whom the infant is proposed to be married ; and should pray for an inquiry whether the contem- 1 For forms of orders, see Seton, 729. As to substituted service, see Pearce v. Crutchjicld, and Wortham v. Pemberton, ubi sup. 2 In Trevena v. Juliff, ubi sup,, :yhere satisfactory evidence of tlie marriage was given on tlie hear- ing of the application, the inquiry was dispensed with. 3 Selon, 729. i Trevena v. Juliff, M. R., ubi sup. ; Seton, 731. 5 Bathurst v. Murray, Re Walker, and Hodgens v Hoddens, ubi sup. 6 He Murray, 3 Dr. & War. 83. 7 The husband in these cases is, as a rule, excluded frona all interest : Birkett v. Hibbert, 3 M. & K. 227 ; Kent v. Bwrgess, 11 Sim. 361, 878 ; Wade v. Uopkinson, 19 Beav. 613 : and see Seton, 726. 8 Nicholson V. Squire, 16 Ves. 269. 9 Stevens v. Savage, 1 Ves. J. 164. 10 Seton, 723, No. 1 ; 723. 11 See Seton, 724, No. 3. 1406 PROCEEDINGS IN THE MASTER'S OFFICE. plated marriage is a proper one for the ward ; that, if so, proposals for a settlement may be received ; that a proper settlement may be approved : and that upon the execution thereof, the parties may be at liberty to intermarry. The allegations in the petition must be supported by affidavit ; but it is usual, on the petition being opened in Court, to adjourn it wholly to Chambers, without any order thereon being then drawn up.^ In proceeding on the petition in Chambers, the propriety of the marriage is, in the first place, considered f and if that is shown, the proposals for the settlement are brought in and discussed f and when these are settled, the matter is adjourned for a deed to be prepared to carry them into effect. The draft of such deed is then prepared by the lady's solicitor f a copy of the draft is left at Chambers, and and is there settled, with the aid, if necessary, of the conveyancing counsel ; the fitness of the proposed trustees and their consent to act must be shown ; and an approval of the deed is signed in the usual manner. The Registrar, or Master, if there has been a refer- ence, then prepares and signs the minute of the order approving the marriage and settlement, and directing that, upon the execution thereof by the persons therein named,^ the parties be at liberty to intermarry. Where a fund in Court is to be paid out or transferred to the trustees of the settlement, or applied in the infant's outfit, or in payment of the costs, or otherwise, the same order may provide for such payment or transfer being made, after the due execution of the settlement, and the solemnization of the marriage ; or a sub- sequent order for such payment or tranisfer may be obtained, on the application of the trustees.* In order to remedy the great inconveniences and disadvantages which formerly arose in consequence of persons marrying during 1 fleton, 723. 2 In Morgan v. Satchell, cited Seton, 723, the Court approved the marriage, subject to its solmniza- tion being postponed till the infant ward attained 17. 3 For forms of proposals for a settlement, see 3 Davidson Conv 762. 4 As to settlements of real and personal estate, see 3 Davidson, Conv. 1-532; 1 Frideaux Conv. 142- 157; 2 L. C. Eq. 594. For precedents of marriage settlements in general, see 1 Prideaitx, 160- 264 ; 3 Davidson, 533-1196 ; and with the sanction of the Court, ib., 727, 747, 754, 1062; Peachy, 790-8i0. A female ward should be empowered lo provide for her children by a future marriage : Undge v. }yiniiall, 11 Beav. 98 : and see Bathurst v, Murray, 8 Ves. 74. 5 In addition to the husband and wife, the settlement should be executed by the trustees : see Adey V. Arnold, 2 De G. M. & G. 432 : ITi/m/i v. Grant, 2 Drew. 312. 6 Setmi, 723. INFANTS — MARRIAGE AND MARRIAGE SETTLEMENTS. 1407 minority being incapable of making binding settlements of their pro- perty, it has been enacted, in England, that it shall be lawful for every male infant who has attained the age of twenty years, and every fe- male infant who has attained the age of seventeen years,^ upon or in contemplation of his or her marriage, with the sanction of the Court, to make a valid and binding settlement, or contract for a settlement' of all or any part of his or her property, or property over which he or she has any power of appointment, whether real or personal, and whether in possession, revision, remainder, or expectancy ; and every conveyance, appointment, and assignment of such real or personal estate, or contract to make a conveyance, appointment, or assign- ment thereof, executed by such infant with the approbation of the Court, for the purpose of giving effect to such settlement, shall be as valid and effectual as if the person executing the same were of the full age of twenty -one years ; but the statute does not extend to powers of which it has been expressly declared that they shall not be executed by an infant ;^ and in case any appointment, under a power of appointment, or any disentailing assurance, has been executed by any infant tenant in tail under the provisions of the Act, and such infant afterwards dies under age, such appointment or disentailingj^assurance will thereupon become absolutely void.^ The sanction of the Court to any such settlement, or contract for a settlement, may be given upon petition presented by the infant, or his or her guardian, in a summary way, without the institu- tion of a suit ; and if there is no guardian, the Court may require a guardian to be appointed or not, as it thinks fit ; and the Court also may, if it thinks fit, require that any person interested, or appearing to be interested, in the property, shall be served with notice of the petition.* The powers conferred by this Statute in the English Court have been given to our Court by the Prov. Stat. 28 Vic, ch. 17. The petition is entituled in the matter of the infant, and of the Act ; the allegations are similar to those usually inserted in peti- tions in the case of marriages of wards of Court ; and tlie petition 1 18 & 19 Vic. ch. 43, sec. 4. 3 18 & 19 Vic. cll. 48, sec. 1. 3 18 & 19 Vio. ell. 43, sec. 2. 4 18 & 19 Vic cll . 43, sec. 3. 1408 PROCEEDINGS IN THE MASTER'S OFFICE. prays that a proper settlement may be sanctioned, and that, upon the execution thereof, the parties may be at liberty to intermarry. On the petition being opened in Court, it is usually adjourned at once into Chambers ; and an appointment to proceed thereon is taken out, in the usual manner. At the return of the appoint- ment, or at an adjournment thereof, evidence must be produced to show : (1) The age of the infant ; (2) Whether the infant has any parents or guardians ; (3) With whom or under whose care, the infant is living, and, if the infant has no parents or guardians, what near relations the infant has ; (4) The rank and position in life of the infant and parents ; (5) What the infant's property and fortune consist of; (6) The age, rank, and position in life of the person to whom the infant is about to be married ; (7) What property, for- tune, and income such person has ; (8) The fitness of the proposed trustees, and their consent to act ; and the proposals for the settle- ment of the property of the infant, and of the person to whom the infant is proposed to be married, must also be submitted to the Judge. On an application under the Act, where the infant is not its ward, the Court is not bound to inquire into the propriety of the proposed marriage, but only into the propriety of the proposed settlement : although what would be a proper settlement in any particular case, must sometimes lead to an inquiry into all the cir- cumstances of the proposed marriage.^ When the proposals for the settlement have been approved, the draft of a deed to give effect thereto is prepared by the lady's soli- citor, and settled at Chambers, with or without the assistance of the conveyancing counsel ; and the engrossment is signed in the same manner as in the case of a ward of Court. Where a draft of a settlement had been already prepared by one of the conveyancing counsel of the Court, it was directed to be settled in Chambers, without being referred to the conveyancing 1 Re Dalton, 6 Dc G. M. & G. 201 : 2 Jur. N. S. 1077 ; overruling 3 8m. & G. 331 • see. however. Re Strong, i Jur. N. S. 1241, L. C. & L.JJ. INFANTS — MAINTENANCE AND ADVANCEMKNT. 1409 counsel.^ The Court, in the case of a female infant, sanctioned the introduction of a clause rendering it compulsory on the successive owners of the estate, or their husbands, to assume the name and arms of the ancestor from whom she derived the property, and limiting the estate over in case of default or refusal ; but refused to sanction a clause that no person professing the Roman Catholic religion should take any interest under the settlement, and limiting the estate over in that event.'* When the engrossment has been signed, the Registrar prepares and issues the minute of an order approving the settlement, and directing that the infant be at liberty to execute it. The order is drawn up in the usual way. 1 Re Waiiams, 8 W. R. 678, M. R. 2 Re WaUams, 6 Jur. N. S. 1064: 8 W. R. 678, M. E. CHAPTER XXXII. DIVORCE. Alimony. — By the principle of the law of England the whole pro- perty of married persons is supposed to rest in the husband : where, therefore, the wife is under the necessity of living apart, the Court will decree a fitting proportion of her husband's income to be paid to her. This provision is called alimony, and is allowed during the pendency of a suit between ^hem, as well to provide the wife with the means to obtain justice as for her ordinary subsistence. The jurisdiction of the Court as to ahmony was created by the Proviticial Statute of Wm. IV., ch. 2, Sec. 3., (the Act establishing the Court of Chancery having passed March 4, 1837), which declared that " the said Court of Chancery shall have the like power, authority, and jurisdiction in all cases of claim for alimony that is exercised and possessed by any ecclesiastical or other court in England." The first reported case for a claim for alimony in Soules v, SovXes} and it was there contended that the Court has no jurisdiction, but the reverse was decided. The jurisdiction of the Court was again denied in 1852, in a case^ in which the Chancellor (Blake) pointed out the powers con- ferred by the Statute on the Court of Chancery. The difficulty mentioned by the Chancellor in this case was to some extent removed by the Provincial Statute 20 Vic, ch. 56, sec. 2, (1857), which provided that the Court ■df Chancery " shall also have jurisdiction to decree alimony to any wife whose husband lives separate from her without any sufficient cause, and under Circum- stances which would entitle her by the law of England to a decree for 1 Smiles r.iSoMn, 2 Grant, 299. 2 Snem V. Severn, 3 Grant, 431. 65 1412 PROCEEDINGS IN THE MASTER'S OrFICE. restitution of conjugal rights. Such alimony to continue during such separation and until the further order of the Court." And the power of the Court was further extended by 22 Vic, ch. 12, sec. 29, Consolidated Statute of Upper Canada, page 51, which enacts that the Court " shall also have jurisdiction to decree ahmony to any wife who would be entitled to alimony by the law of England, or to any wife who would be entitled by the law of England to a divorce and to alimony as incident thereto, or to any wife whose husband lives separate from her without any sufficient cause and under circum- stances which would entitle her, by the law of England, to a decree for restitution of coniugal rights ; and alimony when decreed shall continue until the further order of the Court." The reader is referred to the general remarks made in 2 Black- stone's Commentaries, page 10, which will pave the way for a more minute statement of the law on this subject. It will be observed that we have no Court in the Province em- powered to decree either divorce or restitution of conjugal rights ; that authority was, until the recent changes of the law in England, vested in the Ecclesiastical Courts; the only power given to the Court of Chancery is that to decree alimony, and then only in the following cases ; — I. Where, by the English law, the wife would be entitled to ahmony. II. Where she would, by that law, be entitled to a divorce and to alimony as incident thereto ; and, III. Where her husband lives separate from her without suffi- cient cause, and under circumstances which, in England, would have entitled her to a decree for restitution of conjugal rights. It will therefore be necessary to consider what the law of Eng- land on these points is, or rather what it was, for the establishment of a Court of Divorce has to a great extent altered the old law. The following extracts are taken from Rogers' Ecclesiastical Law excepting where decisions in our own Court are interpolated ; and DIVORCE — ADULTERY. 1413 the practitioner wiD of course understand that much is said having no direct application to this country where the practice is very different from that in the Ecclesiastical Courts of England ; but the principles of the English cases govern us, and it is therefore neces- sary that they be understood. Divorce.— The Canon law does not admit an absolute dissolution the marriage contract for any cause whatever ; which principle of is still adhered to by the ecclesiastical law of this country. A sentence of divorce in substance, declares that " the said A. B. ought to be divorced from bed, board, and mutual cohabitation with the said C. D., her husband, until they shall be reconciled to each other;" and proceeds to caution each party from contracting marriage in the lifetime of the other.'^ It is true, that if an individual be able to incur the expense of obtaining an act of parliament, he may procure a suspension of the law in his own particular case, by the interfer- ence of the legislature to dissolve his marriage ; but the law cannot do it propria vigore, it is only by the intervention of a power above the law, that the vinculutn can be dissolved ; when, therefore, the term " Divorce " is used, nothing more is intended by the laws of England than a separation " a mensa et thoro."^ A sentence of divorce is the judgment of the spiritual court, sepa- rating two persons legally married. Lord Coke says, " de facto married."^ But, with submission to so high an authority, proof of the factum of marriage is not sufficient. Proof of a valid marriage is the very first step, and is altogether indispensable.* A marriage de facto includes all descriptions of marriage, as well those that are void as those that are voidable ; but in a suit for divorce, a defen- dant may plead either that the riiarriage was absolutely void by reason of some civil disability in one of the contracting parties,^ or that it was voidable by reason of some canonical^ impedient, as for example, that it was incestuous, or that one of the parties was in- capable of contracting marriage by reasons of impotency.^ " The validity of the marriage is not a mere incidental point, it is the 1 Comet. 279; Ouqhton, tit. 2J5.- 2 Cro. Eliz. 908 ; Oro. Car. 46S ; JVojr, 108 ; 8 Inst. 89; Co. Litt. 366. 3 It will be understood that these and the following remarks under this heading are made without reference to the comparatively late introduction into England of Divorce Courts. 4 2 Hagg. 8 ; Ayliffe Parer. 60. 5 2 PhlU. 11. 6 Gtueat v. Quest, 1 Hsgg. Con. 322. 1414 PROCEEDINGS IN THE MASTER'S OFFICE. foundation of the whole proceedings. There can be no adultery if there is no marriage. The first point to be proved is the marrialge, which the other party may contest ; and if not contested, the form of the sentence in such cases pronounces, that there has been a true and lawful marriage, as well as a violation of it."^ So, it has been held, that a plea of a prior marriage is a good ground to stay pro- ceedings, and that the question of the former marriage must be determined before the question of adultery is gone into.^ So, where nullity of marriage is pleaded.^ Assuming therefore, that in all suits for divorce, it is necessary to prove a valid marriage : it follows that no cause or impediment existing previous to marriage can be made the subject matter of a suit for divorce ; the civil and canonical disabilities which render the marriage contract either void or voidable, are grounds for a pro- ceeding for nullity of marriage, but not for divorce.* The only grounds upon which a divorce can by the law of Eng- land be granted, are generally two ; viz., 1st, Adultery ; 2dly, Cruelty ; to which a third may be added, in which the ecclesiastical court has interfered, for the relief of a wife whose husband has been guilty of unnatural practices. Adultery, which is said by Isydore, in his Book of Etymologies, to be compounded of the words, " arl alterius thorum," means an actual surrender of the person ; and although the rule of the eccle- siastical court does not require direct evidence of the very fact com- mitted at a specified time and place,^ yet it must be satisfied that the fact of adultery has actually been committed.^ Adultery being an act of darkness, and of great secrecy, can hardly be proved by any direct means ; therefore in relation to the proof by reason of such difiiculty, it happens that presumptive evidence alone is sufficient proof; and this presumptive proof is collected and inferred ex actihus propinquis, that is to say, from the proximity and nearness of the acts ; and thus adultery may be 1 Per Lord Stowell, 1 Hag. Con. 322. 2 Roiins v. Wolseley, 2 Lee, 149. 3 2 Phill. 11. 4 Oodol. Ab. 500. 5 4 Hagg. 262. 6 2 Hagg. Con. 226, 365 ; 2 Eagg. 14 ; S Hagg. 74 ; 1 Bagg. Con. 209. DIVORCE — ADULTERY. 1415 proved by such conjectures as are received and approved of either by law or nature.^ In Williams v. Williams,^ Lord Stowell says, " Direct evidence of the fact of adultery is not required, as it would render relief almost impracticable ; but there must be such proximate circum- stances proved, as by former decisions, or on their own nature and tendency satisfy the legal conviction of the court that the crimina act has been committed. The court will look with great satisfaction to the authority of established precedents ; but where these fail, it must find its own way, as well as it can, by its own reasoning on the particular circumstances of the case." Again, in Loveden v. Loveden,^ " The facts are not of a technical nature, but are determin- able upon common grounds of reason ; and courts of justice would wander very much from their proper office of giving protection to the rights of mankind, if they let themselves loose to subtleties and remote and artificial reasonings. Upon such subjects, the rational and the legal interpretation must be the same.'' What are the circumstances which lead generally to the conclu- sion that the fact of adultery has taken place, can hardly be laid down upon any rule, because they may be infinitely diversified by the situation and character of the parties ; by the state of general manners ; and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have most impor- tant bearings in decisions upon the particular case. The only gen- eral rule seems to be, that the circumstances must be such, as would lead the guarded discretion of a reasonable and just man to the con- clusion.* Facts need not be so specially proved as to produce the conclusion that the fact of adultery was committed at a particular hour, or ina particular room.^ Statements of general, Ipose, and duly familiar conduct are sufficient to establish a high and undue degree of famili- arity between parties. Isolated facts may lead to a conclusion of crime : for the proper way to consider this sort of evidence is not to take them separately, but in conjunction; they mutually interpret 1 Auliffe Parer. 60. 2 1 Hagg. Con. 209. 3 2 Bagg. Con. 2, 3. i -2 Hagg. Con, 2, 3 ; i6, 227 ; 1 Hag. Con. 375. 5 2 Hagg. Con. 4. l-tl6 PROCEEDINGS IN THE MASTER'S OFFICE. each other; their constant repetition gives them a determinate character ; and such habits, when continued in public, lead to the inference that the pai-ties would go greater lengths if opportunities of privacy occurred.^ If a witness stops short, and declines or omits to state his belief of the ultimate consummation of the act, it is true that the court is put on its guard to see whether there is any ground for a scepticism of this nature ; but it would be a monstrous proposition to assert, that the merits of a case of this nature is not to depend upon the narrative, but on the logic of the witness. The court, representing the law, draws that inference which the proxi- mate act unavoidably leads to : the scepticism of the witness, if it really exists, signifies nothing.^ Where there has been general cohabitation, the necessity of prov- ing particular facts is excluded,' and the cases collected in the notes. If adultery continued a long time, with pregnancy, and birth of a cliild during her husband's absence be pleaded, it is useless to prove more than the birth of the child, identity, and non-access of the hus- band.* A woman going to a brothel with a man furnishes conclusive evidence of adultery against her, for it would be impossible for her to go to such a place but for a criminal purpose.^ So as against a husband, proved to have gone to such a place, a violent suspicion is raised, only to be rebutted, if a suspicion so founded can be rebutted, by the very best evidence.^ But if it be shown further that he was alone a considerable time with a common prostitute, it would be of itself sufficient evidence of adultery.'' But the same conclusive pre- sumption does not attach to the circumstance of a married woman going to a single man's house or lodging, unconnected with other facts, however improper such conduct may be ;^ for the court must be convinced in its legal judgment that the woman has transgressed, not only the bonds of delicacy, but of duty f but when the windows were proved to be shut at such visits, and letters which could not be otherwise explained were proved, the court has inferred that adultery took place at such visits.^" In one case, separation, by 1 2 Hagg. Con. 228. 2 2 Bag. Con. 278. 3 2 Hagg. Con. 4. 4 1 Bagg. 6. 5 1 Hagg. Con. 302, 303 ; 2 Bagg. Con. 24 ; 4 Edgg. 138. 6 ] Bagg. 720. 7 1 Bagg 720. 8 1 Bagg. Con, 302. 9 1 Bagg. Con. 302. 10 1 fiagg. Con. 302. DIVORCE — ADULTERY. 1417 reason of adultery and cruelty, was pronounced, on proof of undue familiarities, clandestine communication with frequent opportunities of guilt, and concealed correspondence by letters, denoting great ardour of passion, if not allusions to actual guilt, (but no credible proof of a fact of adultery) united with? great violence of conduct and language, and an attempted blow.^ The communication of the venereal disease long after marriag e is priTna facie evidence of adultery.^ So where the wife, separate d from her husband, lived with a young officer for months at different places under the disguise of separate beds.* So where the parties lived together in seclusion, the man sleeping apart at an inn ; * for, as the court in another case observed ; " parties, living for months and even years together, and hoping to insult the feelings of the husband and elude the justice of the tribunals, have by such contrivances supposed that they were sufficiently protected ; but courts have ever held that these evasions were perfectly insuffi- cient for such a purpose, and the parties have been concluded by general cohabitation."* Ante-nuptial incontinence cannot lay the foundation of a suit for divorce by reason of adultery.* It may possibly be a defence in a suit for restitution of conjugal rights ; '' or, if a wife were to set up a plea of malicious desertion, it would seem that it might be pleaded, that the discovery of her misconduct before marriage, induced her husband to quit her society. Confession generally ranks high, or perhaps highest in the scale of evidence ; for what is taken pro confesso is taken for indubitable truth, as the plea of " guilty," by the party accused, shuts out all further inquiry. Yet it is a species of evidence which, especially in cases of adultery, is to be regarded with great distrust. Oughton has devoted a title to this subject, Tit, 213, which, however, seems copied from Cmisent, 279, 280 ; in which he urges the danger of receiving any such confessions from the temptations to collusion, or that the husband may prevail on the wife by threats or intrea- 1 3 Hagg. 618. 2 1 Hagg. 767. 3 1 Hogg. Con. 416; 2 Hag. Con. 6, ii. 4 lb. 6 2 Hogg. Con. 6. « 1 Add. 1 ; 2 Phil. 127; aed vid. 2 Ad. 306, note (a.) 7 1 Bagg. Con 373. 1418 PROCEEDINGS IN THE MASTER'S OFFICE. ties to admit a crime of which he is not guilty. He adde also another caution with regard to identity, " we persona supposititia (quod meis diehus bis novi) coram eo, ad adulterium libellatum confitendum producatur." Clarke also speaks of two such in- staijces, probably the same as spoken of by Oughton. Lord Stowell, in Searle v. Price} says, " In cases of adultery no con- fession of the fact can be admitted alone, it being particularly necessary to guard against the imposition of making false acknow- ledgements to procure a separation. A married person may after- wards wish the marriage avoided. For this purpose a false case might be established before the court, or a former marriage might be propounded by one party and admitted by the other. The utmost vigilance is, therefore, required that the truth should be established, independent of the confessions of the parties. They might go further. By substituting false parties, who might admit themselves to be parties in the cause when they were not, might destroy the right of real parties. Even a decree of confrontation would not protect the court in such a case, for the real parties might be unknown to the court, its officers, and to the practisers in the court." Upon confession of the wife alone the court will not build a sentence of separation, it being enjoined by the 105tb Canon that no sentence of divorce should be given upon the sole confession of the parties.^ And, although it seems to be the more rational doctrine to say, that such a confession by a wife, proved to the satisfaction of the court to be perfectly free, might be sufficient to found a prayer for a mere separation a mensa et thoro, though not pro diri-mendo matrimonii vinculo, yet the decisions establishing a different construction are too literal to be shaken.^ But, where the wife is charged with adultery, her conduct and declarations, on a confession of guilt by the alleged particeps criminis being communicated to her, are admissible on behalf of the husband.* For though such evidence is looked at with distrust, it is not inadmissible ; ^ and when free from all taint of collusion, ranks of the highest importance.^ 1 2 Hagg. Con. 189. 2 2 Phil. 166 ; 2 Hagg. Con. 189, 316 ; 3 HagR. 77, 131 : 4 Hagg. 262. 3 Sfortimer v. Mortimer^ 2 Hagg. Con. 316. 4 Burgess v. Burgess, 2 Hagg. Con. 235 ; 2 Hagg. 407. 6 1 Hagg. Con. 304. 8 2 Bagg. 409 ; i Hagg. 262 DIVOECE — ADULTBSy. 1419i The declaration of tbe paramour, in the wife's absence, that she had committed adultery previous to that charged in the libel is not admissible ; but a declaration in her presence, and confirmed by her, is ; nor can the court reject it on the ground that it reflects on third parties, or that it does not refer to the adultery charged in the suit.^ The declaration of a particeps criminis is by itself, however, but weak evidence ; but where criminal intention is fully proved, and nothing but the consent of the other party is wanting, the consent of such a person is stringent evidence that the act attempted has taekn place.^ Letters from a wife to her paramom% leaving no doubt of gross familiarity and indulgence, and of proposals for future intrigue, may be admitted in proof of adultery.^ But letters of the paramour, where there are no strong facts proved, from which adultery can be inferred, found in the wife's possession, not necesarily implying the commission of adultery, will not support a sentence of separation by reason of adultery/ Where a letter is pleaded to be in possession of the adverse party, the contents may be set forth at length, leaving the other party, if she pleases, to produce the letter/ Where criminal connection is once shown, its continuance is presumed, especially where the parties live under the same roof." In all cases of adultery the identity of the parties is a very necessary ingredient in the proof. Therefore the mere acknow- ledgment to the officer serving the citation, or the appearance of the party in the cause, have been considered insufficient ; and identity has been required to be proved by extrinsic evidence.'^ The libel must plead the conclusion of adultery ; because, unless it is pleaded, noii constat that it may not be a suit for mere solici- tation of chastity ; but, if the party does aver it, though he proves 1 Croft v. Croft, 3 Hagg. 318 ; Hagg. Con. 148, 376, a I Hagg. Con. 376. 3 2 Hagg. Con. 21, 23 ; 4 Hagg. 262. 4 2 Bagg. 8. 6 3 Hagg. 317. 6 3 Hagg. 360. 7 1 Hagg. 306 ; 2 Hagg. Con. 189. 1420 PROCEEDINGS IN THE MASTER'S OFFICE. only proximate acts, yet he unquestionably proves the whole of his averment in the libel ; and, if the facts are of such a nature as will justifiably and almost necessarily lead to the conclusion, the court, representing the law, draws the inference.^ Where the husband's adultery is to be proved by pregnancy and acknowledgment of children, specific acts need not be pleaded ; ^ nor, where the charge is keeping houses to which he took loose women.^ When parties are living separate, the commencement of the acquaintance with the alleged paramour, and of the suspicions of the person under whose care the wife was, should be set forth circumstantially.* Though the court will not, on presumption, and in the absence of matter strongly inculpatory, impute connivance to a husband, it will not debar him from pleading circumstances which make the story consistent and natural ; for a party ought not to be forced to depend for explanation of his conduct, on the ingenuity of counsel) or the discrimination of the court. ^ The introduction of verdicts in the pleadings was long resisted in the ecclesiastical courts, and it is now understood that they are merely introduced as circumstances of evidence ; it is difficult to comprehend in what view an action against another party can in any way instruct the conscience of the court upon an issue between the husband and the wife ; she not having been party or privy, in the remotest degree, to that litigation.^ The only object indeed of the introduction of verdicts of courts of law into the proceedings seems to be, to satisfy the court that the husband has honestly endeavoured to obtain all the redress the law will afford him.^ If ever such a verdict can weigh at all, it must be as a test of the credit of the witnesses, if the same witnesses are examined in both courts.* In considering the admissibility of pleas, the court must be cautious not to exclude matter essential to' a due decision, nor allow proceedings to extend to an unnecessary length ; but if a serious doubt arise as to the ultimate effect of any averment it ought to be admitted.* 11 Hogg. Con. 27B. 2 1 Hogg, 7 iS ; ib. 6. 3 i>. 777. i 3 Bagg. 316. 5 3 Hagg. 312 ; 1 JTagg. 6 ; sed trid. 3 Hogg. 123. 6 2 Hagg. Con. 286 ; 2 Bagg. Con. 51; 3 Bagg. 2&. 7 2 Ha^. Con. 306. . 8 3 PhU. 99. 9 3 Hdffy, 310, 311. DIVORCE — ^ADULTERY. 1421 A libel pleading specific acts of adultery can only be rejected on two grounds : — 1. That the plea on the face of it shows a case imposbible of proof. 2. That it appears from the facts pleaded that the party complaining has barred himself.^ The whole substantive case should be at once brought before the court ; ^ but where it is clearly shown that the facts could not have been soener pleaded, additional articles may be given in,° and a sentence may be obtained on facts not existing at the com- mencement of the suit ; for a party is not limited to the contents of his libel.* But the libel must contain all the facts that by diligence can" be ascertained at the time ; and subsequently, such new facts only can be pleaded as are nearly conclusive of guilt.^ Pleading after publication generally is within the discretion of the court ; ^ for in cases of adultery, as in other cases, publication is a bar to fm-ther pleading, as of right. ^ Where the evidence did not in the first instance amount to judicial proof, but the conduct proved had been so suspicious as to raise a strong presumption of adultery, and that an adulterous intercourse was actually carrying on between the parties accused ; the court will, on affidavits, rescind the conclusion of the cause, and allow the husband to give in an additional allegation, upon which a sentence of separation may be eventually founded.* But where there was a suggestion, that a charge of collusion and connivance, raised in argument on the evidence produced by the husband, was a surprise upon him, the court refused to rescind the conclusion of the cause, in order that some letters might be pleaded ; being of opinion that the husband was bound so to have shaped his case in the first instance as to have guarded himself from such suggestions ; but in this case there was no dis- tinct plea of connivance, nor had the cross-examination been directed to that point.^ In another case it was observed, that the husband must prove his case, so that his own evidence shall not create a bar by reason of connivance or recrimination, for of such evidence the wife is entitled to the full benefit; ^^ but, it must always 1 1 Hagg. 765. 2 3 Hac/g. 742. 8 3 Hagg. 97; 1 Bag. 349. i 2 Hagg. 136. 5 3 Hagg. 73S ; 4 Hagg. 286. 6 3 Hagg. 344. 7 2 Sagg. Bupp. 137. 8 3 Hagg. 1 ; 2 Hagg. 144, Supp. 9 3 Hogg. 123. 10 3 Hagg. 77. 1422 PROCEEDINGS IN THE MASTEli'S OFFICE. have less weight that it would have, if a defensive recriminatory plea had been pleaded.^ In Turton v. Turton, 344, Dr. Lushington said, " I am not aware of any case in which, upon answers to interrogatories, the court has decided, either that recrimination or connivance has been proved, so as to dismiss the suit of the wife ; and on principle, I think it would be difficult to arrive at such a decision."^ After publication of the evidence in a suit of divorce for the adultery of the husband, the court will not in the first instance delay the hearing, nor will it rescind the conclusion of the cause, in order to admit an ^allegation counterpleading certain answers to letters of the wife, which had been annexed to the interrogatories on cross-examination, suggesting condonation and connivance on the part of the wife ; and which answers were expla- natory of the letters, and were intended to repel the suggestions raised on the part of the husband. The court saying, " It is necessary for me fii-st to ascertain what use is made of these docu- ments and answers to the interrogatories, by the husband's coun- sel ; if they are insisted on as a bar to the separation prayed by the wife, and I should consider them important, I will allow the ad- missibility of the plea now tendered to be debated, but otherwise its contents will be immaterial." The court also refused to have the letters annexed to the interrogatories dis-annexed.^ When adultery has been proved to the satisfaction of the court, the complainant is entitled to a remedy by divorce ; but this remedy may be .barred by his own conduct. There are three general grounds usually pleaded in answer to a charge of adultery.* 1st. Compensatio Griminis, a set-off of equal guilt or recrimina . tion, of which Conset, 280, says, " If the defendant doth prove that the plaintiff hath also committed adultery, the defendant is to be absolved as to the matters requested in the libel of the plain- tiff.^ It is now admissible in Prance,^ and the state of New York;^ but not in Scotland. Formerly, however, it was not admissible in France, upon the principle, as it seems, that adultery committed by the husband was not a ground of divorce or separation on the part of the wife.* 1 1 Bagg. 747. 2 ru. 2 Phil. 153. 3 3 Hagg. 346. 4 Crewe v. Grews, 3 Hagg. 129. 6 Oughton, tit. 214. 6 Cod. Civ. Art. 22. 7 Kent's Comm. 100. 5 Pothier 3, v. 117 ; 1 Uagg. Con. 160. DIVOBCE — ADULTERY. 1423 2dly. Condonation. If there has been a reconciliation, between a man and his wife, after adultery is known to have been com- mitted by her, it is not lawful for him to have his action for divorce against her ; for a divorce is not commanded, but only permitted to the innocent person, who may recede from his right, and re- nounce a favour introduced on his behalf.^ Oughton, speaking of the modes in which the knowledge of the adultery is to be derived, mentions three. 1. The wife's confession. 2. Communication of the witnesses whom he afterwards produces on the trial. 3. That he himself detected her in the fact.^ Probabilis scientia, he adds, bars a divorce ; that is condonation after probabilis scientia. 3dly. Connivance. Ayliffe, Parer. 226, speaks of the case of a husband prostituting his own wife, as one wherein a divorce cannot be had by reason of that adultery; but the law of this country does not require it to be shown that he has been the active agent of his own dishonour. Indiffere'nce and neglect, fairly imputable to a corrupt intention, are sufficient. Eecrimination, or a set-off of equal guilt, is founded on the principle of the Eoman law ; which withholds from a guilty hus- band the remedy of a divorce against a guilty wife. This principle appears a good, moral, and social doctrine.^ The party cited is entitled to be dismissed as respects the particular complaint charged in the libel, though that charge be proved, as if no oflFenee had been committed or proved. It appears, from Gilbert's Jus Canonicum, that recrimination was formerly not admitted in the courts of France ; but in this country it was recognized by all the delegates in the case of Loi'd and Lady Leicester, in 1737, and has been received here as a suffi- cient plea in bar to a suit for divorce by reason of adultery, ever since. " Ea Lege quam ambo conteinpserunt neutur vindicetur, paria enim delicta mutua pensatione dissolvuntur," is said to be the maxim of the civil law, upon which the plea is founded.* A single act of adultery committed by either party (husband or wife) at any time before sentence, will bar a sentence of separation 1 Ayliffe, Parer. 48, 226. 2 TU. 214. 3 1 Bagg. Con. 147 4 2 Hoi/g. 292. I424 PROCEEDINGS IN THE MASTEK'S OFFICE. at the suit of the other party/ or will compel the court to dismiss both parties, adultery beiug mutually, or reciprocally, charged in the cause.^ And the courts must allow either of such parties to plead adultery against the other in any stage of the cause, whe- ther before or after publication, and how long soever this may have passed, or the cause may have been depending ; it being pleaded within a reasonable time after coming to the proponant's know- ledge.* Nor does it seem to make any difference, that the act of incontin- ence did not take place till after the discovery of the wife's infidelity, and the voluntary separation which ensued thereupon; and although there was no reason to believe but that the husband had conducted himself with propriety, up to that time.* Where neither party has an interest in the suit, that is, when the proceedings are ad pvMicayn vindictmn, and not for a divorce, re- crimination is no plea : for there, the public, and not the prosecutor, is the injured party, and it can be no excuse for the breach of the good order of society by the one party, that the other has been guilty of the like also.' The doctrine, that this, if proved is a valid plea in bar, has its foundation in reason and propriety; it would be hard if a man could complain of a breach of contract, which he himself has viola- ted.« As it is no answer to a charge of adultery, that the parties were living separate at the time the adultery was committed, neither does it impeach the validity of a recriminating allegation that the adultery there charged, was committed during a voluntary separa- tion.^ If once the guilt of the husband, the party complained of, be estab- lished, the onus probandi shifts, and if he seeks to deprive his wife of her remedy, by imputing to her criminality of any kind, he 1 1 Hagi). 722 ; 1 Hagr,. Con. 147, 162. 2 2 Hagg. 376; 1 IFagq. 714 ■ 1 AM. 411. 3 2 Add. 259. 4 2 Hag. Con. 295. 6 1 Hag. Con. 148. 6 1 Hag. 790. 7 2 Bag. Con. 296 ; 1 Hag. 789 : 1 Hag. Con. 142, in note. DIVORCE — ALIMONY. 1425 must make good that charge by evidence, which admits of no dispute.^ Where adultery is pleaded by way of recrimination, and as a bar, it is not necessary to prove such strong facts as are required to con- vict the other party in the principal suit ; for to obtain a divorce ' a man must have a pure character,^ But the evidence in such a case ought to be from very credible witnesses.^ Nor will the condonation of a wife bar her of her right to recrim- inate, for then she seeks only to be dismissed ; when condonation is pleaded as a counter plea to compensatio pleaded in bar, it is in- sufficient, for it is not a rule that whatever is a plea in bar, and disables a party from bringing the suit, likewise destroys the de- fence.* The general conduct of a husband, has been considered sufficient to support a recriminating plea in bar, though it would not have been sufficient to support an original and substantive charge of adultery ; for it is a general principle, that many things are good for one purpose, though not for another.* Thus, where a husband failed in his endeavours with several females, but from no want of purpose or activity on his own part, but from an honest and power- ful resistance on the other, it may fairly be concluded, that where no such resistance was to be apprehended, the criminal act would have taken place.^ So, if the criminal intention of the husband be satisfactorily proved, and it be also proved that the conduct of a particular female, whose chastity he had before solicited, was differ- ent on former occasions when she had resisted him ; and, moreover, if after being discovered in an improper situation with this man, she ceases to complain, her silence and submission affijrd the strong- est presumption that his attempt has been more successful.' It must, however, be remembered, that although a plea of recrim- ination in bar of adultery may be sustained on slighter circumstan- ces than would be required to sustain an original charge of adultery, still the facts and circumstances alleged in such plea, must be of 1 3 Hagg. 860. 2 1 Hagg. Con. 296 ; 1 Hagg. 721. 3 2 Lee, 384. 4 1 Hagg. 797. 6 1 Hagg. Con. 162. 8 lb. 7 1 Hagg. Con. 373. 1426 PROCEEDINGS IN THE MASTER'S OFFICE. such a nature, as to lead to the conclusion that adultery by the party against whom the recrimination is pleaded, has actually taken place. In Chettle v. Chetile} Sir J. NichoU said, " I have not heard a case stated, in which, there being proof of adultery by the wife, the mere solicitation on the part of the husband has been considered a bar. But solicitation of chastity will revive condoned adul- tery."2 A recriminating allegation, pleaded as a defence to adultery, may, if the original charge be not proved, operate as a substantive case upon which a divorce may be founded. In a case where a wife brought a suit for separation, by reason of adultery, the husband denied his own guilt, and gave in a recrimi- atory charge ; both parties prayed a separation. The sentence of the consistory court was, that the wife had failed to support her libel, but that the husband had proved his recriminatory allegation ; and accordingly decreed a separation.^ Confirmed on appeal.* So, where the wife libelled the husband for cruelty and adultery, the husband answered by a recriminatory charge of adultery against the wife ; the court held the cruelty and adultery of the husband not proved, but that the adultery of the wife was proved ; and pro- nounced for a divorce-^ The wife having failed in a charge of adultery, and a recrimina- tory plea on the husband's part being proved ; cruelty, and the in- troduction of his wife to a female of loose character, the wife's guilt not being connected with such introduction, will not bar his prayer for a divorce.^ Cruelty cannot be pleaded in recrimination to a charge of adultery, and as a bar to a divorce for such adultery.' Nothing, indeed, except adultery can be pleaded in bar by way of xecri- minaition to a charge of adultery. The delictum must be the same. 1 8 Phil. 608. 2 1 Hagg. 762. 3 Harris v. Harris, 2 Hag. 376. 4 lb. 5H. » Kenrick v. Kertrick, i Hag. 133. « i Hagq. 37«k ^ 1 Hagg. Con. *61. DIVORCE — ADULTERY. 1427 Neither are indifference, ill behaviour, or cruelty pleadable in a suit for adultery. They will not justify a wife's criminal conduct.^ In the case of Harris v. Harris,'-^ the Court said, " The citation states the suit to have been brought by the wife for adultery alone. The charge of cruelty, therefore, was not pleaded in the libel, nor could it have been pleaded responsively to the allegation admitted on behalf of the husband charging Mrs. H. with adultery ; for there is no point, as it appears to me, more settled than that cruelty cannot be pleaded in bar of a charge of adultery." At an earlier period this question seems not to have been considered as settled. In Chambers v. Chambers,^ the Court said, " On this plea a question might arise, whether a party would be entitled to bar her husband from his remedy of divorce for adultery proved against her, by the plea of cruelty. I am inclined to think she would not. A wife has a right to say, ' You shall not have a sentence against me for adul- tery, if you are guilty of the same offence yourself The received doctrine of compensation would have that effect, because both parties are in eodeni delicto ,- but this is not so in recrimination of cruelty : the delictuin is not of the same kind. Here the husband is the 'prior petens' in a suit of adultery ; and I take the general doctrine to be, 'that a wife cannot plead cruelty as a bar to divorce for her violation of the marriage-bed.' " Condonation is forgiveness of former adultery, legally releasing the injury ;* but, to make it operate as a bar to a suit for adul- tery, there must be a complete knowledge of the adulterous con- nexion, and a condonation subsequent to such knowledge.^ Condonation may be either express or implied ; expressed either in words or in writing, or implied from general conduct. It may be implied by the husband cohabiting with a delinquent wife ; for it is to be presumed he would not take her to his bed again unless he had forgiven her.® But the effect of cohabitation is justly held less stringent in the case of a wife. She is more sub potestate, more inops consilii. She 1 2 Hagg. 92. 2 2 Hagg. 411. 3 1 Hagg. Con. 451. 4 1 Hagg. 793 ; 2. Pliill. 411. 5 1 Hagg. 733 ; 3 Hagg. 351, 692 ; 3 Hagg. 118. 6 1 Hagg. 793 ; 3 Hagg. 83. 66 1428 PEOCEEDINGS IN THE MASTER'S OFFICE. may entertain more hopes of the recovery and reform of her hus- band. It would be hard if condonation by imfilication were held a strict bar against a wife. It is not improper that she may for a time show a patient forbearance. She may find difficulty either in quitting her husband's house or withdrawing from his bed. The husband, on the contrary, cannot be compelled to the bed of his wife. A woman may submit to necessity.^ In order to found condonation where the parties have separate beds, there must be something of matrimonial intercourse proved. It cannot rest on the negative fact of the wife not withdrawing herself;^ but it seems that a husband, by pleading that the wife slept at his house the night after the last act of adultery charged in the libel, of which adultery he was informed, takes on himself the 071MS of showing, that they did not sleep together on that night ; though generally a party, relying on condonation, must plead it.^ The question. What amounts to condonation ? must necessarily depend upon the circumstances of each j^articular case, always bearing in mind the above principle, that the presumption of con- donation in the case of a wife is never so strong as in the case of a husband. If she overlooks one act of human infirmity, it is not a legal consequence that she has pardoned all other acts, and tolerates every species of debauchery. A woman has not the same control over her husband, not the same guard over his honour, nor the same means to enforce his observance of the marriage vow.* Therefore it has been held that mere lapse of time in the case of a 'wife is no condonation ;^ for forbearance on her part does not weaken her title to relief f but neglect on the part of the husband to institute proceedings, betraying apathy to the injury of which he eventually complains not satisfactorily accounted for,'^ or a continuance to cohabit after circumstances of suspicion have been brought to his knowledge f are sufficient to bar his remedy. So, also, in the case of a wife ; very long acquiescence after knowledge, amounting to a license, would frustrate her remedy f in the case of a husband great 1 1 Hagg. 793, 794. 2 1 Hagg. 794. 3 3 Hagg. 84. 4 1 Bagg. Con. 133 : 1 Hagg. 793. 6 1 Htuig 766. 6 1 Hagg. 766 : 2 Hagg. Con. 279 : 3 Hagg. 855. 7 Dobiiin v. Dobiyn, Poynter, 233 2 Hagg. Con. -ZTJ, 319 : 3 Hagg. 132,348 ; 2 Phill. 161. 8 1 Ad. 443 ; 3 Hagg. 88. 9 2 Phlll. 163; 1 Hagg. 740. DIVORCE — ADULTERY. 1429 facility of condonation leads to an inference that he does not duly estimate the injury, and will induce the Court to look at his subsequent conduct with jealousy.^ The condonation of adultery by a husband, still more, repeated reconciliations after repeated adulteries, create a bar of greater effect, than the condonation of a wife of repeated act^ of cruelty.^ • All condonations, however, are considered to be, expressly or impliedly, upon condition that the injury shall not be repeated. Condonation is not an absolute and unconditional forgiveness." It is a promise on the implied condition that the injnry shall not be repeated, and that the party condoning shall be treated with conjugal kindness. On breach of whieh condition, the right to a remedy for former injuries immediately revives." If the offence forgiven is afterwards renewed, the party has a right to revert to former facts, if she bring them in conjunction with the latter.^ Where the plaintiff in an alimony suit, after an order for in- terim alimony, had been made returned to her husband's house, and resided there for some time, but was afterwards obliged to leave by reason of cruelty, a motion to set aside the interim order on the ground of condonation was refused with costs.^ The effect of condonation, therefore, is entirely got rid of, and a former charge revived, by a repetition of the injury complained of;' nor is it necessary that clear proof of actual adult^f^ should be given to get rid of condonation of previous adultery. If it were, the revival would be useless, for the subsequent act would be sufficient to sustain the suit.^ Therefore solicitation of chastity by a husband though no bar to a suit against him by a wife for adultery,^ would nevertheless be sufficient to revive a previous adultery after an intermediate condonation ;^°it has been contend- ed that, admitting these propositions, yet that the second and reviving injury must be ejusdem f;eneris with the injury revived ; but this is not the rule, it being now clearly established that 1 3 Hagg. 78 ; 2 Phill. 411. 2 2 Hogg. 113. 3 1 Hagg. 782 ; 1 Hagg. Con 130 ; 1 Hagg. 761. 4 1 Hagg. 761, 762 ; 781 786. 5 Maxwell v. Maxwell, 1 Chm. Rep. 27. 6 Maxwell v. Maxwell rCham R. 27. 7 1 Hagg. 761. 8 1 Hagg. 761 ; 2 l-'kill 167 ; 3 Hagg. 635. 9 3 Phill. 508. 10 Hagg. 762. 1430 PROCEEDINGS IN THE MASTER'S OFFICE. cruelty will revive adultery.^ So also the attempts of a husband, when affected with venereal disease, to force his wife to his bed not only amounts to cruelty, but to evidence of adultery, sufficient to remove condonation of either.^ Circumstances may take away the effect of a condonation which would not support an original cause ;'i for it does not follow that, because condonation will bar the remedy of a party agent, it will destroy the defence of a party recriminating.* A conditional promise made by a wife under force and violence, the condition never being performed, is no condonation.^ Nor, her unwilling return to live in the same house, if unaccompanied by connubial cohabitation.'^ So, also, if the wife withdraws from the husband's bed, though not from his house, the continuing in the house cannot be set up as condonation ;^ especially, if on execution of articles of separation, a wifs allowed a husband to have a bed in her house, at the entreaty of his friends that he should be merely under the roof by sufferance.* Condonation may be implied from delay, in instituting legal proceedings, not satisfactorily accounted for. Delay under such an injury, founds a presumption oi passive, or even criminal acquiescence. In the case of Best v. Best,^ an affidavit of the .husband was allowed to be read to explain and account for the delay of five years ; upon which, adultery having been proved, a divorce was granted ; but where a wife did not account for her delay, the suit was dismissed.^" It seems, that a lunatic, having recovered, may condone adul- tery, and resume cohabitation after a divorce a mensa et thow, instituted by his committee.^^ Condonation ought, in strictness, to be pleaded, that there may be an opportunity of contradiction. ^^ But if it appear clearly upon the depositions, that there had been cohabitation subsequent to 1 1 Eagg. 733 ; 3 Hag. 636. 2 1 Hagg. 767. 3 1 Bagg. 732, 789. * 1 Bagg. 797. teiMgg.rh. 6 1 Haw. 782, 789. 7 Hoaff. 782, 789, 764 ; 2 flasD. ns. S 2 Bagg. 118. 9 iPhill 161 . 10 2 PhiU. 155 ; sed. vid. 1 Bagg. 134. 11 2 Fhill. 160.' 12 1 Bagg. Con. 292. DIVORCE — ADTTLTERY. 1431 the detection of the wife and knowledge of the husband, the Court might call on the husband ex officio to notice it.^ Therefore where it appeared that the wife slept at the husband's house after his knowledge of her adultery, he takes upon himself to reconcile that fact by showing that they did not sleep together ; although gener- ally, the party relying on condonation as a bar should plead and prove it f but it seems, unless pleaded, it cannot operate as a bar.^ Condonation and connivance * are especially different in their natujre, though they have the same legal consequence of barring a party of his remedy. Condonation may be meritorious ; conniv- ance necessarily involves criminahty.^ Connivance on the part of the husband will, in point of law, bar him from obtaining relief on account of the adultery which he has allowed to take place, upon the principle that volenti non fit in- juria.^ In order to constitute connivance, it is not necessary that the husband should actively contribute to his wife's dishonour : the expression of Sanchez, on this head, " Vir qui uxorem prostituit ; ""^ seems too strong ; passive acquiescence is sufficient, pro- vided it be accompanied with an intention and expectation of leading the wife to guilt ; but mere inattention, over con- fidence, dulness of apprehension, or indifference, are not sufficient to constitute connivance : there must be wilful concur- rence.* It is not mere imprudence and error of judgment that the law deems connivance. Conduct to bar, must be directed by cor- rupt intention.^ A plea of connivance must be from its nature circumstantial, and consist of many facts ; trifling, perhaps, when taken separately, but taken altogether, sufficient to satisfy the Com-t; a husband framing a scheme to betray his wife, will hardly disclose it by any one broad unequivocal 1 '1 Hogg. Con. 292. 2 S Hogg. 84. 3 1 Bag§. 761 ; sed vid. 1 Hogg. 795. 4 It is to be observed also that connivance must always precede, or be cotemporaneous with, the act of adultery. Condonation must always be subsequent. 5 3 Hag. 86, 354,. 6 1 Hag. Con. 146 ; 3 Hag. 58, 121 ; As to the modification of this principle as re^rds the wife's conduct, vid. ZHagg. Con. 279 ; 3 Hagg. 348, 362 ; 2 Bag. Con. 271 ; 3 Hag. 366. 7 Sanchez de Matrimonio, Lib. 10, Disp. 6, Nos. 3, 4. 8 3 Hag. 69, 76, 106, 133. Per Lord Stowell, in Hoar v. Hoar, 3 Hag. 140. Ii32 PROCEEDINGS IN THE MASTER'S OFFICE. act.^ Nor is it necessary to prove connivance to actual adultery any more than it is necessary to prove an actual and specific act of adultery. If a system of connivance at improper familiarity, almost amounting to proximate acts, be established, a corrupt intention will be inferred, and more direct proof rendered unnecessary ;^ a husband is not barred by permission of opportun- ity for adultery ; but, if he continues the meeting to obtain suffi- cient evidence of the fact, it is legal prostitution.* The notoriously debauched character of the paramour ; his exclusion from all respectable female s;3ciety ; the introduction of him by the husband to his wife ; the encouragement of their inti- macy ; the allowing her to accept a sum of money from him ; expostulations from her family at such intimacy ; the refusal of the husband to attend to them ; and improper liberties and fami- liatities in his presence, and without his remonstrance, are material facts to show connivance.* We have seen above that confession of the wife is not a sufficient foundation on which alone to build a sentence of separation ; but although by the rules of law, it cannot satisfy a judge, it must satisfy the mind of a hus- band, especially when direct and unequivocal.® But where a wife confesses a guilty passion, but denies criminality, if a husband acts unwisely, the Com't will not deny him his remedy unless it appears that he has acted corruptly.^ Collusion is an agreement between the parties, for one to com- mit, or appear to commit, an act of adultery, so as to suffer the other to obtain a remedy at law, as for a real injury. The law permits no co-operation for such a purpose, and refuses a remedy for adultery committed with such intent ; but it is not proof of collusion that after the crime is committed both parties are desir- ous of a separation.'' A judgment by default suffered by the paramour, and the absence of any defence by the wife in the ecclesiastical Court, may be, but are not necessarily, proofs of collusion.^ 1 3 Hagg. 94. 2 3 Hogg. 94, 95 ; 3 Hagg. 154. 3 3 Hagg. 81. 4 3 Hagg^. 87. As to culpable neglect, amounting; to criminal negligence, vid. also 3 Hagg. 153. 6 3 Eagg. 11. 6 3 Hagg. 141, 142, 143. 7 3 Hag'g. 130. 8 3 Hagg. 130, 133; 1 Hagg. Cou. 290 DIVORCE— ADULTERY. 1433 If a husband is once in possession of a fact of adultery, and still continues his cohabitation, it proves connivance, collusion, and facility, and bars his right to relief.^ But he is not bound to show the time when the fact first came to his knowledge. It might be prudent and expedient for the success of his suit, that he should do so, but it is not absolutely necessary, something must be allowed for convenience.^ But constant intercourse continued for four years between a wife and her paramour, not clandestine, but the common subject of conversation among servants and friends, rais- ed a grave suspicion of the husband's knowledge and acquiescence;^ but still, ■ in the particular case, the divorce was granted, as the husband could not be affected with knowledge. In the case of a wife, a want of promptness in noticing the infidelity of her hus- band, ought not to be pressed against her as barring her legal remedy, unless in very particular cases. Certainly a wife would not be justified in living in the same house with her husband's concubine, sharing the turpitude of his crime, and partaking of a polluted bed ; but she might have a reasonable hope of his return to her society ; and forbearance under this spes recuperandi has never yet been held to constitute a bar to her legal remedy, when every hope of that kind should be extinct.* A wife has not the same control over the husband, as a husband has over the wife ; nor the same guard over his honour ; nor the same means to en- force observance of the marriage vow.^ A facility to condone on the part of a wife seems nieritorious, whilst a similar facility on the part of the husband would be degrading and dishonourable.^ The relative ages of the parties is proper to be pleaded ; where the husband is much older than the wife, it may perhaps, impose on him an obligation to more vigilant superintendence.'' Though malicious desertion does not operate as a positive bar, yet if a husband withdraw without a cause, and when a wife required his active superintendence, it betrays a want of prudent attention and honest caution, which may, on other grounds, de- prive him of his remedy.* 1 3 Hogg. 76, 83. 2 2 Bagg. Con. 279. 3 S Hagg. 125. 4 3 Hagg. 125 ; 3. Hagg. 364. 5 1 Hagg. Con. 133 ; 1 Hagg. 793. 6 1 Hagg. 762, 766, 786 ; 3 Hagg. 78. 7 3 Hagg. 153. 8 1 Hagg. Con. 164 ; i Ad. 299. 1434 PROCEEDINGS IN THE MASTER'S OFFICE. An allegation not defensive in respect of adultery, but charging the husband with connivance, does not admit the charge of adul- tery.^ But it seems questionable whether a party, especially a husband, can set up connivance as a defence, indirectly and inci- dentally, and by interrogatory only, without giving the other party a full opportunity to answer.^ Although it is clear that the Court or a party may take the objection of connivance where it is clearly appears on the evidence adduced to estab- lish the adultery.^ Indifference, ill-behaviour, or cruelty, is not pleadable in answer to a charge of adultery, nor relevant to a charge of connivance.* A husband appljang for a divorce must come with clean hands, if he have connived at his wife's adultery with A. he cannot take advantage of adultery with B. happening almost about the same time ; if he has relaxed with one man, he has no right to complain of another. * But where the improper conduct of the wife was long antecedent, it was held no bar ; as where there had been a separation for five years, the husband was not barred of his remedy, by having connived at the improper conduct ol his wife, previously to separation ; especially in a case where children had been born of the subsequent adulterous connection, who had been baptized by the name of the husband, for this may be a severe injury and an irreparable grievance, as the presumption of law is, that these are the legitimate children of the husband.^ Suits for divorces by reason of cruelty, propter scevitiam, are usually brought by the wife, as the more infirm party, though they may be, and indeed have been, successfully brought by the hus- band.'' Every thing is in legal construction scevitia, which tends to bodily harm, or to the injury of health, and in that manner renders cohabitation unsafe ; wherever there is a tendency only, to bodily mischief, it is a peril from which the wife ought to be protected, because it is unsafe for her to continue in the discharge of her conjugal duties.* Unkind conduct, though accompanied by 1 3 Hagg. 68, 91. 2 Fenton v. Fenton, y Hagg. 352. 3 3 Hagg. 77 ; 3 Hagg. 125. i 3 Hagg. 92. 6 3 Eagg. 87. 6 3 Hagg. 122 ; note b ; 3 Hagg. 147. 7 Hagg. Con. 409. 8 2 Hagg. Con. 149; 2PAi«. 96 ; 1 Hagg. Cob. 409. DIVORCE — ADULTERY. 1435 words of menace, is not legal scBvitia unless they are expressions of determined malignity, or unless accompanied with blows ; if there are words of serious menace, it matters not that they are address- ed to a third person, the test being, whether, or not, they excite reasonable apprehensions.^ Nor is it necessary that there should be many acts ; the Court indeed is indisposed to interfere on account of one slight act, particularly in cases of long cohabitation, because if only one instance of ill treatment is proved, it may be hoped that it will not be repeated ; but unless there are some cir- cumstances in the case restraining the Court, one act is fully sufficient to authorize its interference.^ Where a few days after her departure from her husband's house, the wife was found with severe bruises and injuries upon her per- son, which in the opinion of a medical man must have been caused by external physical violence, not occasioned by a fall or other accident, and the husband having been shown to have used violence towards her on other occasions, and in other ways had so conduct- ed himself as to raise a strong presumption that the bruises and injuries were inflicted by him, the Court made a decree for alimony.^ In a suit by a wife for alimony on the ground of cruelty, her own conduct was proved to have been in some respects blameable, but several instances were established of gross cruelty towards her on the part of her husband far beyond what the provocation could justify ; the last proved instance of such cruelty occurred a few months before the husband left the country. Until this time they had lived together. During the husband's absence the wife, by arrangement with him, occupied a cottage of his and received a weekly allowance for the support of herself and their children. On his return, which took place some months afterwards, he refused to live with her, leaving her, however, in possession of the cottage, and continuing to pay her the same weekly sum as she received during his absence ; and it was proved that after his return he had said that he would not live with her ; that he was afraid they would 1 1 Hagg. 776 ; 4 J 2 1 Hagg. Con. 459 ; 1 Hagg. 768. 3 1 Jackson v. Jackson, 8 Grant 409. 1436 PROCEEDINGS IN THE MASTER'S OFFICE. neTer agree, and that lie might do something which would subject him to punishment ; somthing which might bring a rope round his neck. Held, under these circumstances that the wife was en- titled to a decree for alimony.^ This case is interesting, as the difficulty of dealing with a husband who had deserted his wife as the law then (1852) stood is pointed out, and it was perhaps for the purpose of removing this difficulty that the subsequent statute of 20 Vie. c. 56 was passed. A subsequent case^ shows how valuable the powers given to the Court by 20 Vic. c. 56, and 22 Vic. c. 12 have proved to be. It was there held that the right of the wife is to reside with her husband in his home or the joint home of both ; where, therefore, it ap- peared that the husband resided with his children (by a former wife) and compelled the wife to live at lodgings, the Court, although no violence or other ill-treatment was shown on the part of the husband towards his wife, made a decree for alimony in her favour ; and that, although it was shown that during such time the hus- band had been in the habit of visiting and remaining with his wife. In a suit for alimony the wife must prove herself aggrieved, otherwise there is no foundation upon which the Court can proceed to pronounce a decree for alimony. The defendant in his answer to an alimony suit, denied the acts of cruelty charged against him by the bill, and no 'evidence was given to establish the charges of cruelty, but at the hearing the defendant consented to a decree beiug made for alimony : the Court, on the grounds public policy, re- fused to interfere. In such a case the party could attain the object they had in view, of effecting a separation by arrangement out of Court : the objection to pronouncing the decree sought was, the Court doing that without proof of necessity for its intervention, which it can only properly do upon proof of such necessity.^ A groundless and malicious charge against the wife's chastity, followed by turning her out of doors, and which charge is not at- tempted to be plea;ded or proved, may be alleged with other acts of 1 1 Severn v. Severn, 3 Grant 431. 2 2 Weir v. Weir, 10 Grant 665. 3 1 Qracey v. Graoey, 17 Grant 118. DIVORCE — ADULTERY. 1437 cruelty, as a ground of separation.^ -So spitting on a wife, or obtaining her property by imposition, and compelling to depart by threats.^ What merely wounds the mental feelings whilst unaccompanied by bodily injury, either actual or menaced, can rarely be noticed by the Court ; mere austerity of manners, petulance of temper, rude- ness of language, a want of civil attention, even occasional sallies, if they do not threaten bodily harm, do not amount to legal cruel- ty ; they are high moral offences in the marriage state, not inno- cent in any state, but still they do not amount to such legal cruelty, against which the law will relieve ; still less is it cruelty, where it wounds not natural feelings, but those only arising from particular rank or situation, for the Court has no scale of sensi- bilties by which it can guage the quantum of injury done and felt ; and though such considerations, when stated merely as matter of aggravation, are not absolutely excluded, yet, they cannot of them- selves constitute legal cruelty.^ The main test is, can cohabita- tion subsist without personal danger ? Where personal safety is in jeopardy, or there is reasonable ground to apprehend such a consequence, it is the bounden duty of the Court to protect from risk or danger.* Necessity alone confers on the Ecclesiastical Court the power of putting those asunder whom God has joined, and a regard to personal protection must define the exercise of that power. But mere words, however reproachful. 'unless they inflict indignity and threaten violence, can never lay a foundation for a sentence of separation.^ A wife must endeavour to disarm such a temper by weapons of civility and kindness, if these fail, the law requires her to submit to the consequences of her own injudicious choice.® The bringing a suit for restitution of conjugal rights is not necessarily a bar to a sentence of separation for cruelty, even where the imputed cruelty has been committed prior to such suit; nor are acts happening anterior to such suit, though not precisely 1 1 Sagg. 769 : 1 Hagg. 163. 2 1 Hagg. 776. 3 1 Eagg. Con. 37, 39, 40. 4 4 Haqg. 265 ; 1 Hagg. Con.- 351 ; 1 Hagg. 773. 5 1 Hagg. Con. 409 ; 2 Hagg. Con. 168 ; 2 PMll. Ill 1 Hagg. 776. 1 Hagg. Con. 364. 1438 PROCEEDINGS IN THE MASTER'S OFFICE in the nature^of legal cruelty, to be altogether excluded from con- sideration, if they denote harshness and severity : but, still in ordinary cases, little reliance could be placed on them, when the conduct of the party in bringing such a suit seems so inconsistent with their existence.^ But no wife can obtain the interference of the Court to protect her from treatment which she has drawn upon herself by her own misconduct, she must atjirst, at least, seek a remedy in the reform of her own manners.^ If, however, it should appear, that even misconduct on the wife's part has produced a return from the hus- band, wholly unjustified by the provocation, and quite out of pro- portion to the offence, the Court would still interfere.^ It is not necessary that the conduct of the wife should be entirely without blame, for the reason which would justify the imputation of blame to the wife, would not justify the ferocity of the husband.* The Court will also notice relative cruelty, for what may be tolerated by one, may not be by another.^ A husband's attempt to debauch his women-servants, is a strong act of cruelty ; so also is a ground- less and malicious charge against his wife's chastity ; and though neither, of itself, would be sufficient for divorce, yet in conjunction with other acts, they would weigh as acts of intrigue and indig- nity.® But the taking to a separate bed cannot be pleaded by the wife as an act of cruelty.^ ft Cruelty, like adultery, may be condoned, Westmeath v. Westmeath,^ and upon similar principles may be revived after condonation ; but, when cruelty generally consists of successive acts of ill-treatment, if not of personal injury, something of a condonation of the earlier ill-treatment necessarily takes place.^ In one case, where there had been a long separation, nearly twenty years, the court considered the effect of it, was to approximate the acts committed in the two periods of cohabitation ; if there had been no separation, the court would have considered the former acts as obsolete, and that the 1 4 Hagg. 272. 2 2 Hagg. Con. 169. 3 1 Add. 123. 4 1 Hagg. Con. 469. 6 1 Hagg. 782, and 1 Hagg. Oou. 456. 6 1 Hagg 760. 7 1 Hagg. 760, 776. 8 Westmeath v. Westtneath, 2 Hag. 112. 9 2 Hagg. Supp. 113. DIVORCE — CRUELTY. 1439 husband was eTtiendatus moribus, but the separation got rid of the intermediate years, and the former acts were to be looked at, as if they had happened recently.^ But although condonation may be set up as an answer to a suit for cruelty, it seems that recrimina- tion may not. In Chambers v. Cha-mbers,^ Lord Stowell says, " If the wife was the p7%or petens in a suit of cruelty, I do not know that she would be barred by a recrimination of that species, for the consideration would be very different, the court might not oblige her to cohabitation, which would be dangerous." A plea of cruelty may be introduced with considerable effect, when adultery is, at the same time, charged against the husband ; because proof of cruelty, in such a case, adds greatly to the proba- bility that the charge of adultery is well-founded ; for when the affections of a husband are estranged from his wife, they are more likely to be directed to less worthy objects.^ So also it may be admissible, as introductory to the history of an adulterous connec- tion.* Where cruelty and adultery are both charged, it may not be necessary to proceed on the charges of cruelty at all.^ A party being before the court on a charge of cruelty, acts of adultery, subsequent to the citation, may be pleaded.® In a sub- sequent case, where it appeared that the husband was cited in a suit for cruelty, in February 1831, to which a defensive allegation on his part was admitted in June 1832 ; an allogation on the part of the wife was subsequently put in, pleading adultery by the hus- band in 1827, 1828, and 1829 ; it was contended that such allega- tion was not admissible, and that no case had gone so far as to allow acts of adultery to be pleaded which had taken place pre- viously to the original suit, although acts of adultery subsequent to the suit had been admitted, though not contained in the original libel ; but the court not admitting the distinction, the allegation of the wife was admitted.'^ A wife sued her husband for a divorce, on the ground that he had been guilty of unnatural practiqes, and a libel was given in 1 1 Hogg. tSl ; i Bagg. 611. 2 1 Hagg. Con. 462. 3 1 Saga. Con. 146. 4 3 Phlll 600. 6 2 Phill. 67. 6 1 Hagg. 22. 7 Sampson y. Sampson, iHagg. 288. 1440 PROCEEDINGS IN THE MASTER'S OFFICE. the consistorial court of York, pleading a conviction, and a sentence to two years imprisonment ; the court having rejected the libel, the cause was appealed to the court of delegates, who reversed the sentence of the court below, and decreed a divorce ; an act of parliament was subsequently obtained, by which the marriage was dissolved.^ In Mogg v. Mogg, 2 Add. 292, the libel charged cruelty, and unnatural practices; a distinction was attempted to be established between this and the case above, on the ground, that the latter was a conviction of an assault, with intent to commit, &c., whereas this was a conviction for endeavouring to persuade E. K. to permit him to take indecent liberties, a minor offence, though one of the same kind ; but the com-t, Sir J. Nicholl, said, " The case upon the whole amounts to that par quod consortium, amittitur. Could the court send the wife home to such a husband ; he refuses her access to his person ; he resorts to abominable practices, cruelty itself, independent of that other charged ?" A deed of separation is considered by thfe ecclesiastical court as an illegal contract, implying a renunciation of stipulated duties ; a dereliction of those mutual offices which the parties are not at liberty to desert ; an assumption of a false character in both parties, contrary to the real status personoe ; and therefore such deeds are not pleadable in bar of proceedings for adultery.^ It is not to be considered as a matter perfectly light in the behaviour of a husband, complaining to this court, that he has withdrawn himself from his wife, without cause, and without consent, from the discharge of those duties which belong to the very institution of marriage ; this malicious species of desertion, is a ground for divorce in some countries, certainly not so here ; but it will not justify a wife in a resort to unlawful pleasures, because lawful ones are withdrawn.^ Mere separation, in fact, cannot be made the ground of v. divorce. 1 Bromley v. Broinley, 2 Add. 159. 2 2 Hagg. Con. 142, 318 : 1 Hagg. 760, 789 ; 2 Add. 28.'), .■!02 ; 4 Hagg. .lU. 3 1 Hagg. Con. 154. 4 1 Hagg. Con. 120, 154, 142 ; 2 Add. 299. DIVORCE — CRUELTY. 1441 If the court were to grant separations, because the husband has thought proper to separate himself from his wife, it would be to confirm desertion, and gratify the deserter, and the court would then become the perpetual instrument of these voluntary and illegal separations.^ Neither can desertion, though wilful, or as it sometimes called, malicious desertion be made a ground of separa- tion, though in conjunction with cruelty it frequently is.^ The mere desertion of a wife by a husband, though a malicious desertion, will not bar a sentence of divorce, on proof of adultery committed by the wife. The long absence of the husband was not considered to amount to a desertion, in the case of Sullivan v. Sullivan, 2 Add. 299. A suit for a divorce may be instituted at the instance of the parent or guardian of the minor ; and the court, in a case where the wife's grandfather was appointed guardian, ad litem, on her mother's renunciation, would not enter into the question whether the husband might dispute the appointment of guardian, since it was enough, if a third person could not take advantage of the objection ; for, there being a guardian apparently appointed with sufficient regularity, the court will presume the person sufficiently qualified to receive it, until the appointment is shown to have been invalid.^ So also the committee of a lunatic, may institute such a suit, in which case it was said by Lord Stowell, in Parnell v. Parnell, 2 Phill. 178 : " The question resolves itself into two points : whether a lunatic is put out of the protection of the law, and secondly if he is not, whether there is any mode in which redress can be obtained ; on the first there can be no doubt ; and it never 1 Paley in his Moral Philosophy, seems to consider this as a sufficient ground of divorce. B. 3 P. 3 c. 7 : and it is admitted by the laws of Scotland and Prussia, and was so in France after the Revolution and before the Restoration. In Scotlatid, four years' desertion was the period fixed on by a statute passed in 1573 ; in practice, however, a shorter time is admitted ; the first process is, to compel cohabitation ; on tlie contumacy of the defendant, the marriage is dissolved, and the statute is con- sidered as satisfied, if four years intervene between the first desertion and final sentence. In America, the practice varies in different States. In Maine, five years' desertion without cause, is required to be proved. In Connecticut, wilful desertion for three years is considered sufficient. Kent's Comm. on Ameriean Law, 105, n. Both the civil and canon law allow a divorce for long absence, but are not agreed as to the period ; in one place it is said, after two years ; in another, after three ; others have held that the civil law requires five years. In the council of Lateran, a sentence was allowed by the whole council, which was given by a bishop, prououncing a divorce for a woman, complaining that her hn.sband had been absent ten years ; giving also leave to the woman to marry again. But the truth is, no absence, bti it for any time whatsoever, doth properly ciuse a divorce at law. QodoL Abr. 494. 2 1 Hagg. Con. 120 ; 2 Add. 299. 3 1 Hagg. Con. e. 1442 PROCEEDINGS IN THE MASTER'S OFFICE. can be asserted, that the wives of lunatics should be universally released from the duties of their marriage vow. It would be an imputation on the laws of this country, to suppose that it had not provided some remedy against such a mischief. Upon princi- ple, the powers of the committee must be upheld, to protect the lunatic from the greatest of all possible injm-ies." And it was also said, that the lunatio would have the power of condonation, if he recovered ; or might stand on what had been done for him. There is no limitation of time for bringing a suit for divorce on the ground of adultery. " Quamvis accusancli jus de aduUerio quoad pcenciTii criminalevi et civilem j^rcescribatur quinquennib, quoad divortium tamen petendum, nunquaTn prcescribitur."'^ No limitation is imposed by statute, or by any rule which the court has laid down for itself. The court has no power by law to refuse relief merely on the ground of lapse of time. Courts of law do not afford any conclusive rule which should, bind the ecclesiastical court in such a question.^ The first thing the court looks to, when a charge of adultery is preferred, is the date of the charge relatively to the criminal act charged, and known by the party ; because, if the interval be very long between the date and knowledge of the fact. Bind the exhibition of them to this court, it will be indisposed to relieve a party who appears to have slumbered in sufficient comfort over them ; and it will be inclined to infer, either an insincerity in the complaint, or an acquiescence in the injury, whether real, or supposed, or a condonation of it. It, therefore, demands a full and satisfactory explanation of this delay, in order to take it out of the reach of such interpretations.^ For the purpose of explaining delay in such a case, the affidavit of the husband, the plaintiff, was admitted to be read, though objected to, on the ground that no evidence of the wife or husband could be heard in such a case ; and that the cause which was concluded must be determined by the proofs exhibited in it ; but the court said that the wife did not suggest connivance or condonation as a ground of defence, and it was necessary for the husband to explain the delay in order to satisfy the conscience of the court ; * but where not so accounted for, condonation was presumed from the 3 Sanchez lib. 10, disp. 3 ; Poynter, 204. 2 1 Hagg. Con. 1S3 ; 1 Bagg. 740 n. 1 Bagg. Con. 313. 4 2 PhUl 168. DIVOP.nE — ADULTERY. 1443 delay, and the suit dismissed.^ A husband maj' wait in order to obtain adequate proof, but no longer.- But this doctrine is not to be pressed against a wife. Forbearance on her part may be excusable and even meritorious.^ Therefore mere lapse of time will not bar a wife's remedy.* Even in the case of a husband, it is not, it seems, invariably expected that he should show when a charge first came to his knowledge.^ In Ehues v. Ehves,^ the court observed, " A husband has suspicions, he has some intimations, he has enough to convince his own mind but not to instruct a legal case. In that distressing interval his conduct is nice ; it is diffi- cult to refrain from cohabitation, as the means of discoverj^ would be frustrated, and if he continues cohabitation, it then becomes liable to imputation." How far delay to institute proceedings leads to an inference of condonation or connivance has been already shown. It was solemnly decided it Lolly's case,'' that as by the law of England marriage was indissoluble, and not to be dissolved but by an act of parliament, it could not be dissolved by the courts of another country. The judges held the conviction right, being unanimously of opinion that no sentence or act of any foreign country, or state, could dissolve an English marriage a vinculo matrimonii for grounds on whicli it was not liable to be dissolved o- vinculo matri- monii in England. The same question also arose, very shortly afterwards in the house of lords, in Tovey v. Lindsay.^ In that case there was no decision, Lords Eldon and Redesdale considering the question too important to be decided upon the case as it was then brought up.® 1 2 Phill. 153. < 2 8 Hagg. 131 ; and vid. Dobbyn v. Dohhyn, Poynter, 233 : Rnding v. R\(diag, Poynter, 231. 3 1 Hagg. Con. 133. i 1 Hagg. 740, n. ; *. 766. 5 2 Hagg. Con. 279. 6 1 Hagg. Con. 292. 7 1 R. & R. C. C. 236. 8 1 Dow, P. C. 117. 9 In America this question e.xcites ansious consideration, from the intermarriages of citizens of different states of the union, each state being independent and governed by its own laws. Chancellor Kent, in his Commentaries, p. 107, sa.vs, '* Assuming that in ordinary cases the constitutionality of the laws of divorce in the respective states is not to be questioned, the embarrasing point is, how far a divorce in one state has a valid operation in another? If a husband and wife were married, and reside in a state, where divorces are not at all peimitted or not to the extent, and for the same causes as in other states ; and the parties, or one of them, re tire into another .state for the express purpose of procuring a divorce, and having obtained its return to their native state and contract other matrimonial ties ; how are the courts of the states, where the parties had their home, to deal with such a divorce ? When a divorce was brought in such a case, the court in Massachusetts properly refused to sustain a libel fora divorce and sent the parties back, to seek such relief as tlie laws of their own domicile afforded. The supreme court of New York has refused to assist a party, who had thus gone into another state, and obtained a divorce on grounds not admissible in New York, and procured an evasion of i% laws They would not sustain an action of alimony founded on such a divorce ; In another case it held a divorce in another state obtained by the husband, when the wife resided out of the state, and had no notice of the proceeding, null and void ; because the cnurt had no jurisdiction over the 67 1444 PROCEEDINGS IN THE MASTER'S OFFICE. Beazley v. Beazley}^ was a case of nullity of marriage pi-omoted by the wife on the ground of a former marriage. The question arose, whether such former marriage was dissolved a vinculo by a divorce in the commissary court of Scotland, so as to enable the husband to marry again ; the marriage pretended to be dissolved, having taken place in England, the second marriage in Scotland The court, Dr. Lushington, said " Cases have been cited, in which it is alleged that a final decision has been pronounced by very high authority upon the operation of a Scotch divorce on an Enghsb marriage, that it has been determined, that a marriage celebrated in England cannot be dissolved by the sentence of a Scotch tribunal, and that the contract remains for ever indissoluble. The author- ities principally relied upon for establishing that position, are the decisions of the twelve judges in Lolly's case, and the decision of the present lord chancellor, on a veiy recent occasion, McCarthy v. Lc Caix. If those authorities sustained to its full extent the doctrine - contended for, the court would feel imijlictly bound to adopt it ; but I must con.sider whether in Lolly's case it was Che intention of those very learned persons to decide a principle of universal operation absolutely, and without reference to circumstances ; or whether they must not, almost of necessity, be presumed to have confined themselves to the particular circumstances that were then under their consideration. Lolly's case is very briefiy reported ; none of the authorities cited on the one side, or on the other are referred to, nor are the opinions of the learned judges given at any length ; all that we have, is the decision. " In that case the indictment stated, that on the T.8th of July, Lolly was married at Liverpool, to Ann Levaia, and afterwards to Helen Hunter, his former wife being then living. It was proved that both marriages were duly solemnized at Liverpool, that the ease, when they had none over the absent wife So also, in the supreme court of Massachusetts, in the case of a divorce fraudulently obtained. Sentences obtained by collusion being mere nullities, and all other courts having power to examine into facts upon a judgment obtained by fraud." He adds, "The question is, whether, if such a divorce be procured in another stat" by parties submittinf- to the jurisdiction, and after a fair investigation of the merits of the allegations upon which the decree was founded ; such a decree be entitled to be received as valid and binding upon the courts of the native state of the parties. A graver question eaimot arise under this title in our law." The learned author then enters into an able discussion of the question, reviewing the decisions of our courts and of the commissary courts in Scotland. It appears that, upon the principles of the English law, a marriage contracted in New York cannot be dissolved except for adultery by any foreign tribunal out of the United States, because the lex loci contractus ought to govern. Kent, 117. 1 3 Bagg. 63B. DIVORCE — FOBEIGN. 1445 first wife was alive a week before the assizes, and that the second wife agreed to marry the prisoner, if he could obtain a divorce. The jury did not find that any fraud had been committed ; but there does not appear to have been any discussion upon the very impor- tant question of domieil. A case in which all the parties are domi- ciled in England, and resort is had to Scotland, (with which neither of them have any connection) for no other purpose than to obtain a divorce a vinculo, may possibly be decided on principles which would not altogether apply to a case differently circumstanced ; as where, prior to the cause arising, on account of which a divorce was sought, the parties had been bona fide domiciled in Scotland. Unless I am satisfied that every view of this question had been taken, the court cannot, from the case referred to, assume it to have been established as an universal rule, that a marriage had in England and originally valid by the law of England, cannot under any possible circumstances, be dissolved }>y the decree of a foreign court. " Before I could give my assent to such a doctrine (not meaning to deny that it may be true,) I must have a decision after argument upon such a case as I will now suppose ; viz., a marriage in England the parties resorting to a foreign country, becoming actually bona fide domiciled in that country, and then separated by a sentence of divorce pronounced by the competent tribunal of that country. If a case of that description had occurred, and had received the deci- sion of the twelve judges, or the other high authority to which allu- sion has been made, then indeed it might have set this important matter at rest : but I am not aware that that point has ever been distinctly raised, and I think I may say with certainty that it never has received any express decision."' When the above case came before the court for final judgment, the learned judge said, " One only distinction exists between this case and that of Lolly's, viz., that here the second marriage took place Scotland ; in neither case is there any proof of collusion in resorting to Scotland ; and in neither case is there any domieil in Scotland ; and, as in my judgment the question of domieil might form a most important and distinguishing feature, the due effect of a Scotch domieil on the decision of these cases would demand a very careful consideration. That, however, does not arise in the present case. 14-1.6 PROCEEDINGS IN THE MASTER'S OFFICE. "It is useless, however, to reason from principles or analogy, I am bound by authority ; for since it now appears that neither of the parties to the first marriage, were at any time bona fide domiciled in Scotland, no sound distinction exists between the present case and that of Lolly ; I, therefore, pronounce the second marriage null and void. My judgment, however, must not be construed to go one step beyond the present case, nor in any manner to touch the case of a divorce a vinculo, pronounced in Scotland between parties, who though married when domiciled in England, were at the time of such divorce bona fide domiciled in Scotland; still less between parties who were only on a casual visit in England at the time of their marriage, but were both then and at the time of the divorce bona fide domiciled in Scotland." Restitution of Conjugal Rights. Having considered the law of divorce it will be convenient now to consider that relating to the restitution of conjugal rights, for our Court has been given jiower to decree alimony in cases where by the English law the wife would be entitled to this relief Eestitution of conjugal rights is a suit wherein it is the practice to plead on behalf of the promoter that the party complained of has withdrawn from cohabitation without lawful cause, and con- cludes with a prayer that such party may be compelled to return and treat the complainant with conjugal affection.^ But the Ecclesias- tical Court can only interfere where cohabitation is suspended; where, therefore, a libel charged, "that the said Margaret Orme, though allowed by the said Eobert Orme to reside in the same house with him, was denied access to his person and bed ; " it was rejected, on the ground that, cohabition continuing, the Court could not inquire as to the terms on which it was maintained.^ But where, in a suit for restitution, the usual decree had been pro- nounced, " to take his wife home and treat her with conjugal affec- tion," and to certify his obedience on a given day as a preliminary step to his dismissal from the effect of the orignal citation ; and it appeared that though the wife had returned home, the husband, 1 1 Hogg. Con. Sup. 6. 2 The duty of matrimonial intercourse cannot be •ompelled by the ecclesiastical court, though matri- monial cohabitation may; 1 Hagg. Oon. 154, per Lord Stowel ; Orme v. Orme, 2 Add. 382. DIVORCE — EESTITUTION OF CONJUGAL RIGHTS. 1447 without actually ejecting her, had treated her with anything but conjugal affection, the Court refused to dismiss the husband.^ Where in a suit for alimony, it appeared that the plaintiff's absence from her husband's residence was voluntary, and that any grounds for annoyance to her whilst residing with her husband arose almost, if not entirely from her own violence of temper, and that her husband was still willing to receive her back and support her ; the Court at the hearing dismissed the bill, but ordered the defendant to pay the costs of the suit to the plaintiff.^ A married women voluntarily left her husband's house, alleging as a cause, unkind treatment by the husband, but subsequently offered to return, when he refused to receive her. Upon a bill filed for alimony, the Court made a decree referring it to the Master to fix an amount to be paid to the plaintiff for alimony, during such time as the parties continued to live separately.^ Where, in a suit for restitution of conjugal rights, a marriage in fact, or the validity of it, is denied, the suit assumes the shape of a sit of nullity of marriage.* This suit, like a suit for divorce, may be barred either by cruelty, or adultery,® and upon adultery being pleaded and proved in answer to a suit for restitution, a divorce may be decreed, and it is not necessary to institute a cross suit for that purpose.' So also, a plea of cruelty or adultery may be met by a counter- plea of condonation.* So also misconduct previous to condonation, may be revived by misconduct subsequent.* But where, in consequence of the violent conduct of a husband, the wife insisted upon, and obtained a deed of separation, but was induced, by the entreaties not only of the husband, but of her own family, to allow the husband to occupy a bed-room in her house, upon his express declaration, that he should be considered only as 1 Ormev. Oruiu, 2 Add. 382. 2 McKay v. McKay, 6 Grant, 3S0. 3 JSnghsh v. English, 6 Grant, 680. 4 Smft V. Swift, i Hagg. 153 ; and vid,.Grant v. Grant, 1 Lee, 592. 5 Oliver v. Oliver, 1 llagg. Con. 361. 6 Best V. Best, 1 Add. 411. 7 3 liagif. 638 ; i Uagg. 261 ; 2 Hagg. Sup. 66. 8 Westiueath v. Westmeath, 2 Hagg. 115; 3 Hagg. 629 9 Ibid. 1448 PKOCEEDINGS IN THE MASTER'S OFFICE. a lodger having no right to cohabitation, and no control or authority in the house, or over the servants, and should be in the house merely by sufferance ; and no matrimonial intercourse, in fact, took place during hie stay there, the Court refused to consider such a residence as condonation.^ Where there are faults on both sides, and the injuries of the complainant are ascribable to the provocation offered, or where they were received accidentally in a scuffle ; where, in short, there is no reason to impute malignant intention, the law will oblige the wife to return to her husband.^ In Bramwell v. Bramwell,^ the Court said, " if the witnesses lay a sufficient ground for the Court to conclude that a wife's retm-n to cohabition would be attended with a reason- able apprehension or a probable danger of personal violence, the Court will release her from the duty of such return." In that case sentence of separation was pronounced, in a suit for restitution of conjugal rights by the husband, on proof of undue familiarity of the husband with a woman with whom he held correspondence, clandestine communication, shewing great warmth of passion, with frequent opportunities of guilt, though no credible fact of adultery was proved. In a case where a wife refuses to return to her husband on account of violent conduct, it is not necessary, in defence to a suit by her husband for restitution of conjugal rights, for her to shew that her conduct was entirely without blame ; for the reason which would justify the imputation of blame to the wife will not justify the ferocity of the husband.* Where the wife is acting on the defensive, she is not relieved from the proof of necessary facts, yet, under such circumstances, the inference arising from facts, when established, may be stronger than where she is the original complainant ; thus, where a suit for restitution is promoted by the husband, the wife is not, accord- 1 Westmeath v. Wrslineath, 2 Hagg-. IIS. 2 Oliver v. Oliver^ I Hagg. Con. 372. 3 3 Hagg. 635, and oid. 2 Hagg, Sup. 129. 4 1 Hagg. Con. 468 ; 2 Hagg. Sup. 72. DIVORCE — RESTITUTION OF CONJUGAL RIGHTS. 1449 ing to the doctrine and practice of the Ecclesiastical Courts, held to the same strictness of proof, as in an original suit by her.^ If a wife separate herself from her husband, on account of legal cruelty on his part, and afterwards is induced by his entreaties, seconded by the wishes of her own family to return to matrimonial cohabitation, the law presumes, that when she so returns she con- dones former injuries, upon the understanding and expectation . that she is to be treated with conjugal kindness ; and if the hus- band fails to do so, such former injuries would be revived by sub- sequent misconduct of a slighter nature, than that which would be required to constitute orignal cruelty, and for the plain reason, that the apprehension of danger would be more easily and justly excited ; and the law, therefore, though not allowing a wife to separate herself from her husband from mere fancy or caprice, would not compel her to return to cohabitation.'-' The Ecclesiastical Courts do not consider an agreement for separation, as in any way affecting the legal rights of parties ; and although it may contain an express covenant not to bring a suit for the restitution of conjugal rights, it is not a bar ; and indeed has been said to offer no impediment to a suit of such a description.^ In one case in which articles of separation, containing a cove- nant of this nature, were pleaded. Sir W. Wynne said, on over- ruling such plea, that he believed it was the first time the ques- tion had come directly before the Court, and that he was surprised that it should be brought forward.* A suit for restitution of conjugal rights, strongly infers that at the time of instituting such suit, the party had no reasonable ground to apprehend personal violence, but it does not amount to an absolute bar to a sentence of separation for antecedent cruelty ; a fortiori it would not exclude the wife from pleading acts of harsh- ness and severity, previous to such suit, in conjunction with acts of cruelty subsequent.* 1 3 Sagg- 619. 2 Westmeath v. Westmeath, 2 Hagg. Sup. 114 ; 3 Hagg. 636. 3 2 Hagg. Sup. 115. 4 2 ECagg. Sup. 44, ii. 6 4 Hagg. 268. 1450 PROCEEDINGS IN THE MASTEK OFFICE. Amount of Alimony. The Ecclesiastical Courts in England, exercised an equitable juris- diction in settling the amount of alimony, varying in some degree with the position of the parties : thus where the wife is proceeded against by the husband for adultery, though the Court cannot assume her to be gTiilty of the offence till it is proved, still that is a sort of charge which ought to make her concent to live in decent retirement, and on that account a comparatively small allotment of alimony is in such a case given during the pendency of the suit ; but a different principle will, it seems, be adopted where the wife brings the suit, and is the complainant, and where there is no complaint against her.^ No provision as alimony can be made for a wife until the fact of marriage is either proved against the husband or admitted by him,^ There was a case where an application was under the day immediately jsreceding a long vacation, for interim alimony, allowed by the English Ecclesiastical Court, pendente lite. The Court said that it was incompetent to it. In. point-of forvi to make any allotment to the wife as prayed, there not only being no constat of the husband's faculties ;' but a marriage, de facto even, though pleaded against) being neither proved, nor confessed by the husband. It recom- mended however, that in effect, the wife shall be alimenated propor- tionally to the husband's means and during the long vacation, intima- ting that it should take this into the account when, in the progress of the suit, alimony pendente lite, came to be reyida.rly allotted, if its recommendation where not complied with. Interion alvmony, as its nameimports, is given only as a temporary provision for the wife, and ceases when the court has finally settled the rights of the parties after having heard the cause. If at the hearing, she establishes her right, the decree orders permanent alimony, and usually refers it to a Master to settle the amoimt. If she fails, her bill is dismissed, and the interi'm alimony of course 1 Rogers' Ecc. Law, 3li, citing lice.-t v. Rues, 3 Pliill. 390 1 Uagg. 2.3, 526, 530 ; 2 Eagg. Con. 190 Pliill. 162 2 Smyth v. Smittli. 2 Aildara •27,i. ■i Tliis expression iiu'ans " No iilea or declaration, wliicli tlie Court required the husband to make on oath, di.'ielosing his means or ineonie : his ' faculty' or the extent of his ability to pay the ali- mony which might be allotted." DIVORCE — ^AMOUNT OF ALIMONY. 1451 ceases. It may here be observed that where permanent alimony is decreed, it is to be computed from the date of the decree pronounced on the hearing.! And where interim alimony is ordered it is to be computed from the date of the order.^ The first reported case in this Province on this point is Soules v. Soules, just referred to, where it was held that the Court of Chancery will, in a proper case, grant interim alimony pendente lite. Interim alimony is thus obtained, the bill being filed. Evidence by affidavit is provided proving the marriage. The affidavits are filed, and a notice of motion in Chambers based on the bill and affidavits is served in the usual way on the defendant. It was usual to verify the allegations in the bill by affidavit, but it has been decided* that proof of the marriage only is necessary. Interim alimony will be granted on pririut facie proof of the marriage, although the validity of the marriage is disputed.* On an application for interim alimony, the validity of the alleged marriage cannot be tried. If a mai-riage de facto is proved, it is sufficient. But to obtain an order for interim alimony, the plaintiff must show she is in want of means of support. When the parties had been living separate for four years, and the wife did not allege she was in waijt of means of support, and the husband swore shu was in better circumstances than he was, an order was refused.' An application for interim alimony must be upon notice.f Where, in an alimony case, no one appeai'ing for the defendant, an order had been made for interim alimony for the amount endorsed on the bill, which the defendant considered excessive, a reference was directed on payment of the costs (dives costs), of the applica- tion.' Marriage once'established, the husband is]liable to pay for main- teuance pendente lite, and costs of suit, whether the cause be for adultery, the object of which is divorce, or in cases of impotency, 1 Per Spragge, V.C., in Soules v. Soules, 3 Grant, 121. 2 Ibid. 116 ; but see Howe v. Howe. 3 Cham. Rep. 494, where it was held that interim alimony runs Irom the time of the service of the bill, if there has been no want of diligence on the plaintiff 'a part in making the application, 3 Nowlan v. Nowlan, 1 Cham. Rep. 368. McOrathv. McGrath, 2 Cham. Rep. 411. 6 Bradley v. Bradley, 3 Cham. Rep. 329. 6 Swinarton v. Swinarton, 2 Cham. Rep. 453. 7 Hooper v. Hooper, 3 Cham. Rep. 114. 14i52 PROCEEDINGS IN TllE MASTER'S OFFICE. and other cases of nullity -^ and such rule is adhered to, although fraud in procuring the marriage is expressly charged on the wife by the libel, and although , costs are prayed, and may be ultimately awarded against the wife.^ In an alimony case where the marriage is admitted or proved, interim alimony will be granted almost as a matter of course ; and notwithstanding that defendant swears he is willing to receive and maintain the plaintiff.^ On an application for an order for interim alimony the affidavit as to the marriage should state such particulars as to it (by whom solemnized, &c.) that the Court may judge for itself whether it has been duly solemnised or not.* In a suit for alimony,'' the defendant having signed a consent to an order being made directing him to pay the plaintiff a certain sum for alimony, a motion was made in Chambers for an order in terms of the consent ; but the Chancellor said — " If this order were made as consented to, it would amount in reality to a decree in the cause : the matter must be brought before the full court." In England upon an application for alimony the Court required, on the part of the husband, a statement both of his casual and certain income to be set forth in a plea called the " allegation of faculties," and required his personal answer on oath, which the wife might insist on, even if the husband were in India ; the answer of the attorney being held insufficient ; and in the meantime the Court allotted the wife a sum of money on account of alimony, and directed a monition to issue against the attorney for the payment, in a case where he long conducted the cause on his own authority and exhibited no proxy.^ The personal answer of the husband having been given on oath, the Court determined upon the answer, taking into consideration all the circumstances of the case, — what should be the amount of the alimony pen- dente lite, to enable the wife to carry on the suit, or what the amount of permanent alimony, in case the suit had been brought to a conclusion. It was usual for the wife to accept the answer of the 1 Rogers' Bcc. Lftw, 36, citing 1 Lee, 200. 2 Ibid, citinfr i Add. 03. S Carr t. Carr, 2 Ch»m. Rep. 71. 4 Tayior v. Taylor 1 Cham. Rep. 234. 5 Craig t. Craig, 1 Cham. Rep. 41. IS Rogeri Ecc, Law, 36; citing Frazer v. Frazer, E. T. 1819; Poynter, 248. DIVORCE — AMOUNT OP ALIMONY. 1453 husband, particularly when reformed by order of the Court, but she was in no manner compelled to acquiesce in his valuation, and it was open to her to dispute his answer, and to examine witnesses on it, if she thought proper ; such a right, however, was not allowed to be exercised wantonly, but with caution and tenderness. It is hardly ever necessary, especially in cases of considerable pro- perty to enter into an inquisitorial scrutiny of its exact value ; it is to be taken upon a fair general estimate.'^ Nor is a statement of the amount of capital, or an exposure of the particulars of partner- ship concerns required.^ An assignment apparently fraudulent and colorable, by the hus- band of all his property after the commencement of a suit by the wife for divorce, cannot affect her title to alimony pendente lite. The Court allotted alimony pendente lite at the rate of £50 per annum, out of an income of £140, and refused to allow the moni- tion not to issue till after fifteen days.^ In granting alimony a careful regard is to be had to the husband's means, and the difference between existing property and an income derived from personal exertion.* In another case," the Court said — " Taking then the income of the husband at £250 per annum, and considering that he has two children to educate and maintain, and that he will have to pay the expenses of this suit on both sides. I allot to the wife the sum of £75 per annum as alimony pendente lite ; she must have the means of furnishing hei^self with a decent subsistence." Station in life, and the wife's fortune, or the fact that she brought no fortune are equally to be considered.^ The admission of a husband as to faculties (means, or income) is to be taken strongly against him.' Alimony pending a suit is always less than that which is assigned after proof of the delinquency of the husband, one-fifth of the net income being the usual proportion.* The nature of the suit, the charge made, and the answers given in are to be considered in granting alimony pendente lite. And although the part which I Sogers' Eco. L»w, 36, ciimg Britco v. Britco, 2 Btgg. Con. IW ; »nd see 2 Let. SW. i Rogert' Eoo. L«w, citing 3 Hajfg. 472, Eiggt T. Higgi. 3 Brown v. Brown, 2 Hajjg. E. R. 6. 4 Hawkes y. Hawket, 1 Hagg. 520. 6 Barrii v. HarrU, 1 Hagg. J58 « Ibitl. .*;M. 7 2 Lee, 595. y Haufkct v. Hawkes, 1 Hajj^. bi6. 14'54 PROCEEDINGS IN THE MASTER'S OFFICE. the wife takes in the suit does not affect her claim to ali- mony pending the proceedings, yet it is a circumstance of import- ance as reg-ulating the quantum, especially if it should be supposed that she adheres to an adulterous connection, for it can hardly be doubted but that in such a case the amount would be no more than with some regard to her situation, and the fortune she bought would be absolutely necessary for her maintenance.^ In one case which was an application for temporary alimony the husband having £1500 per annum, and the wife a separate income of £300 per annum, the Court added £200 ; afterwards both cruelty and adultery having been proved against the husband, one half of the whole income was allotted as permanent alimony.^ But this large propoi-tion was given because the bulk of the fortune originally belonged to the wife, and having been settled on her, she was induced by the hope of better treatment to give it up to her husband- He had been not only adulterous, but cruel — and, in order to buy off his cruelty, he obtained possession of the ])roperty which had been settled on his wife. This principle of a moiety by way of per- manent alimony has been adhered to in other cases, especially where the wife has brought a fortune, and the conduct of the husband has been vicious and profligate.^ In one case where the joint income was £.5500 per annum, the Court deducted for the expense of educating children, and allotted £2000, or about a moiety of the remainder to the wife.* In another, indeed, £250 or only one-thii-d, the wife taking charge of an only child.5 In another case, the income being £12,000 per annum, and the husband and earl, one-third was allowed as permanent alimony, and in reply to an observation that the wife had brought a large fortune, it was answered that she had got rank in return, and that the husband had the dignity of the peerage to support.^ But in two cases of tradesmen, whose incomes were stated at £300 per annum each ; £80 in one case and £75 in the other, was allowed as permanent alimony.'^ In another, £185 out of £527, or nearly two- fifths.'' Upon a general principle, after separation, by misconduct 1 Rogers' Ecc. Law, 37, quoting Poiyiiter, 251. 2 Smith Y. Smith, 2 PhiU- 162-235. 3 Cooire v. Cooke, 2 Phill. U. 4 2 mil. 110. 5 1 Uagg. 632. 6 2 Phill. 43, 236, and vid. 1 Ragg. 52& ; 2 Hogg. Con. 201 . 7 2 PhUl. 44, 46. - 8 2 Add. DIVORCE — AMOUNT OF ALIMONY. 1455 of the husband, the wife is entitled to be alimented as if living with him as his wife.^ The following cases in oui- own Court on this point, show how far the English rules as here laid down will be followed in this province. The defendant was the owner of real estate of the annual value of about £112, but subject to a debt of £100. He had also household furniture and farm stock, and he worked his farm ; the plaintiff with her eight children, lived apart from the defendant on account of his cruelty, and with no means of support, save such as might be obtained by way of alimony. On a reference to the Master to fix permanent alimony, he allowed £37 10s. per annum. On appeal this sum was increased to £80 per annum. ^ The rule that the conduct of the wife should weigh much in determining the amount of alimony is a reasonable one ; the Court in settling the amount considered it with the other circumstances of the case ; the wife's temper had occasionally been of a Violent character, and his treatment of her had been unreasonably severe. The Court adopted the husband's income as the guide for fixing the sum to be paid. Allowance of alimony increased from £25 to £200 per year, it being shown that the husband's income had increased to such an extent as to justify the additional allowance.^ The independence of a wife may, in some cases, relieve a husband from the charge of alimony pending proceedings ; but cannot, except perhaps were there has been gross misconduct on her part, tend to his entire exoneration ; for if a wife being promoter establishes her case, or has been vexatiously proceeded against, the insufficiency of the means of the husband is no reason why he should not pay alimony, and also costs, when his own conduct has made him liable.* In calculating a wife's separate income, the salary as a lady of the bed-chamber being subject to great expenses, was held to have been properly omitted, aliter of a royal grant of a pension to her, which by 2 & 3 W. IV. ch. 116, was made 1 2 Hagg. 7 ; 1 Biagg. 530, 2 McCuUoch V. McCuUoch 10 Grant, 321. 3 Severn v. Severn, 7 Grant, 109. 4 2 Hagg. Con. 2! 4. 1456 PROCEEDINGS IN THE MASTER'S OFFICE. seQ^re by law and was not fluctuating.^ If the husband violates the marriage contract, it might be equitable perhaps, that he should lose the whole benefit of it, and give up the whole of his wife's property, at all events it would be unjust to deprive her of any con- siderable portion of the property she brought, in order to support the husband in public scandal and enable him to continue his adulterous connection and to provide for the isssue which are the fruits of it.^ If the question of alimony be fixed by the local ordinary, the Court above will not on slight grounds disturb the sentence.^ It is desirable that, " the allegation of faculties " shoiild be given in at an early period, and that the question of alimony should be disposed of in the first stage ui the proceedings to prevent the hus- band from being unnecessaiily harassed with demands for the wife's debts.^ For until there is a constat of the husband's faculties the Court, it seems is, in point of form incompetent to make any allot- ment to the wife ; thus where a libel, after having been reformed, was admitted on the court day immediately preceding the long vacation, the court recommended that in effect the wife should be alimented according to the husband's means, during the long vacation, intimating that it would take this into account when in the progress of the suit, alimony -pende'iite lite came to be regularly allotted, if its recommendation was not complied with.^ Nor .ought the court to act before the husband's answers are given in, thus, where in a suit by a husband in a local court for a divoroe for adultery, an allegation of faculties was admitted but before the husband's answers were given in, or any wit- nesses examined thereon, the judge, without any proof of the husband's estate, settled an alimony of twenty shillings a- week on the wife, and the husband appealed, the court pronounced for the grievance.* Where the allegation of faculties had been given in by the wife, she being the defendent, in which she admitted a separate income, and it was proposed to read an affidavit of the 1 3 Knapp, P. C. 2 2 Phill. 40 ; 2 Phill. 109 ; 3 P}dU. 391 ; 3 Hagg. 322, 667. i 2Add,.\;i mil. 41. 4 BriHou V. Britca, 2 Hagg. Con. 199. 5 Smyth V. Smith, 2 Add. 264. 6 ButltT V. ButUr, 1 Lee, 88. DIVORCE — AMOUNT OF ALIMONY. 1457 husband as to his income, in contradiction to the allegation, the court refused to allow it to be read, and admitted the allegation and condemned the husband to pay costs, but decreed nothing as to alimony till the proofs were before the court.i If the circumstances of the husband should alter, if he is lajjsus facultatihufi, it is competent to him, if done without delay, to apply to have the allowance reduced, if his means are diminished." Or to the wife to apply for additional income if they are improved.^ But unsuccessful speculations by the husband, whereby his means are diminished, seems to furnish no ground for reducing the allowance.* After a decree of alimony had been made, and alimony paid for several years under it, the court entertained a petition by the hus- band to be relieved from the decree, on the ground of adultery subsequently committed by the wife. On the heai'ing of this peti- tion an act of adultery was sworn to by two credible witnesses ; and the general conduct of the wife raising no presumption in her favor, an order was made as prayed.^ An offer by a husband to support his wife separately is no bar to a suit for alimony ; and aVi affidavit of the husband showing his willingness to support his wife cannot be received.*" Where both parties have long abstained from applying to the court, the one for a leduction, the other to enforce regular payment, the court will not reduce the amount on account of the wife's debts incurred by reason of the non-payment of the alimony ; nor will it reduce it on account of waiver by the wife, the additional expenses to the husband by the advanced ages of children, the failure from mismanagement of her trustees of a portion of funds set apart for alimony, or a slight addition to her means aliunde. Alimony is due from the return and not from the issue of the citation, though considerably prior to the return unless possibly under special circumstances.^ But it ought to be paid before the hearing.'' 1 2 L^c, 2«4. 2 2 Phill, 110 ; 3 PhUl. 391. 8 8 llagg. .•i2U ; .1 Add. 278. 4 4 Hajjg. 273. Severn v. Secern, 14 Grant, 150. 6 Weir v. Weir, 1 Cham. Rep. 194 7 3 Uagg. 822 ; 3 Phill. 391. 8 i Add. 253; 3 Phill. 391. 9 1 Lee, 692, "Appeal." t 1438 PROCEEDINGS IN THE MASTER'S OFFICE. On appeal the alimony runs from the date of the sentence appealed from, and not from the mere return of the inhibition.^ If sums have been advanced,^ or debts paid by the husband since the alimony became due, the amount may be deducted from the sum decreed f but the payment of such debts seem to afford no reason for any permanent alteration in the amount.* Besides alimony pending suit, the wife is also entitled to pay- ment of costs necessarily incurred either in the promotion of the suit, if proceeding against her husband, or in her defence when proceeded against.' And where she has no separate property, she has a right to have her costs taxed de die in diew.^ But although it is the general rule that the husband should pay costs on which- ever side the suit was brought, it is only on the presumption that the husband had everything and the wife nothing, when the con- trary appeared both law and presumption were ousted, and the general rule will be entirely or partially abandoned.' In suits of alimony the plaintiff, when she succeeds, is entitled as a general rule to her full costs of suit.^ The test in regard to the allowance^ of costs in alimony suits appears to be whether or not they have been vexatiously incurred- Therefore, where notice of examination and hearing was given and afterwards countermanded, upon its coming to the knowledge of the wife, after notice had been given that the husband intended to produce a witness from abroad to prove adultery on her part while on ship-board, what was done having been done in good faith, and the countermand given in order that she might be prepared to rebut' so serious a charge against her, it was deemed reasonable that the costs in relation to such notice and countermand shall be paid by the husband to the solicitor of the plaintiff." If the wife is aggrieved by the non-payment of the sum allotted for alimony, she should make her application to the ecclesiastical 1 1 Lee, 261 ; 1 PhtU. 210; 3 Phill. 207 ; 1 Hagg 528. 2 1 Hagg. 23. 3 1 Hagg. 353. 4 3 Hagg. 322. 5 3 Phill. 98. 3 PhiU. 262 ; 1 Hagg. 1G8, 475, 787 ; 2 Hagg. 133 ; 4 Hagg. 611. 7 2 Hagg. Con, 203 : 2 Add. 276. 8 Soules V. Soulea, 3 Grant, 313. The rule as to costs has been lately changed in this Province b.v ch. 18 of the Statute of Ontario, 32 Victoria, passed 23 January, 1369, the first section of which pro- vides that no costs de die are to be paid beyond tlie cash disbursements properly made by the plaintiff 's solicitor ; and section 2, that, where the plaintitl fails to obtain a decree, no costi shall be given beyond the amount of the cash disbursements properly made by the plaintiff 's soUcitor. 9 Olennit v. Olennie, 1 Chun. lUp. 155. DIVORCE — AMOUNT OF ALIMONY. 1459 court in a reasonable time, otherwise the court will infer she has made some more beneficial arrangement. As a general rule, there- fore, the court is not inclined to enforce long arrears. Alimony is allotted for the maintenance of the wife from year to year, and unless the husband is absent from this courtry, or some particular reasons are set forth, it would be productive of great in- justice and inconvenience if after a lapse of many years, the court should enforce payment, beyond one year prior to the conviction.^ Nor where both parties have long abstained from applying to the court, the one for a reduction of alimony, and the other to enforce regular payment, will the court enferce arrears nor inquire as to the sums paid by the husband for his wife's debts incurred by reason of non-payment of alimony.^ As to the power of arresting a husband who in order to defeat the wife of her remedy by leaving the country, provision is made by a Provincial Statute. In England the proceeding by ne exeat is thus described. In order to prevent a wife being defeated of her remedy by a husband going abroad without the jurisdiction, the Court of Chanc- ery will grant a writ of ne exeat regno, but this writ can only be obtained upon an affidavit that he is going abroad, or on some declar- ation of his that he is going ; it is not sufficient to swear that another person said so.^ Nor will the writ be granted till the wife has absolutely obtained a decree for alimony, it is not enough that she has obtained a decree for separation in the ecclesiastical court.* And as the writ is considered in the nature of equitable bail, it cannot be obtained except under circumstances that would entitle a party to bail at law, and consequently the Court will not in any case mark the writ for more than is actually due for the arrears and the costs, for neither Courts of law nor equity are en- titled to judge whether a woman is entitled to alimony or not, or what she will ever get.^ The remedy of the wife is in this province more extensive, for it is provided^ that, " In suits for alimony, instituted after this Act 1 Wilson V. Wilson, S Haggp. 329, u. 2 Ibid. S22. 3 Oldham v. Oldham, 7 Ves. 410. 4 Sha/toe v. Sliafloe, 7 Ves. 171. 5 Haffey v. Haffey, 14 Ves. 261 ; and vid. 7 Ves. 171, 173, 6 22 Vic. ch. 24, sec. 9, Con. Stat. U. C. page 278. 68 1460 PROCEEDINGS IN THE MASTER'S OFFICE. takes effect, (5 December, 1859), the Court or a judge- therefore may, in a proper case, order a writ of arrest {Ne exeat Provincia) to issue at auy time after the bill has been filed, and shall in the order fix the amout of the bail to be giveu by the defendant, in order to procure his discharge. In case an order is made for a writ of arrest, in a suit for alimony the amount of the bail required shall not exceed what may be considered sufficient to cover the amount of future alimony for two years besides arrears and costs, but may be for less at the discretion of the Court.^ The bail or security re- quired to be taken under a writ of arrest shall not be that the per- son arrested will not go or attempt to go out of Upper Canada, but shall merely be to the effect that the person arrested will perform and abide by the orders and decrees made or to be made in the suit, or will personally appear for the purposes of the suit at sucli times and places as the Court maj' from time to time order, and will, in case he becomes liable by law to be committed to close custody, render himself, if so ordered, into the custody of any sherifi' the Court may from time to time direct. - The first application for a writ of arrest was in a suit ^ in which the bill was filed October 24, ISS?,* for alimony, and prayed for a writ of Xe Exeat Provincia to issue. Defendant was possessed of jS225, invested in stock, and in receipt of a salary of £100 per year. The motion was made on an affidavit verifying the facts stated in the bill, and showing the amount of defendant's property, and his in- tentions of leaving the Province. Spragge, V.C, granted the writ but considered it advisable to limit the amount to £200. The writ of Ne Exeat, granted after filing a bill in an alimony suit, remains in force after decree ; but it is no objection that the wife resides out of the jurisdiction, as during coverture, the domicile of the husband is the'domicile of the wife.^ It will be observed that by the act just referred to, it is provided that no order shall be gTanted for a writ of arrest unless the party applying for the writ shows by affidavit such facts and circumstan- ces as that act requires in the case of a special order for holding a 1 22 Vic. ch. 24, sec. 10, Con. Stat. U. C. 2 Con. Stat. U. 0. ch. 24, sec. 11. 8 Cooper's Dig. 36. 4 This proceeding was taken under 20 Vic. ch. 56, sec. 3, of which sec. 9 of Con. Stat. ch. 24, is nearly a copy. 5 McDonald v. McDonald, 5U. C. L. J. 66. DIVORCE — AMOUNT OF ALIMONY. 1461 party to bail under the fifth section of the Act. The practitioner therefore in framing an affidavit for a writ of arrest for alimony ■will be guided by the Common Law practice as to that part in which the facts are stated requisite to convince the Judge that the defendant is about to leave the Province. Although the Statute 22 Vic, ch. 33 — incorporated in sec. 10 of Con. Stat, of U. C, ch. 24 — authorizes the arrest of a defendant in an alimony suit for not more than the amount of two years allow- ance for future alimony and arrears, still if the Court has obtained possession of funds of the defendent by reason of any default on his part, it will, in a proper case, refuse the payment bf them over to him without first securing the future payment of alimony.' With regard to the arrears of alimony due at the death of the wife, it seems that the ecclesiastical court has the power to decree them on the application of a wife's executors, but at all events if that court has not the power, a court of equity will interfere and decree their payment ; thus, where a bill by the executor of a married woman was filed for an account and payment of arrears of alimony due at her death, under a decree of the ecclesiastical court, and demurred to by the defendant, the Vice Chancellor said, that he had taken opinions, which though they were not very satiafactory, yet the better opinion was that the ecclesiastical court would allow the wife's executors to enforce payment of the arrears of alimony against the husband. If that were so, a bill in a court of equity for the same purpose was unnecessary, but added, that as it was not absolutely clear that the ecclesiastical court would in such a case decree an account and payment of arrears, he was not justified in allowing, the demurrer which had been put in.^ A bill for alimony should allege that the husband has refused to receive his wife, It is not sufficient to allege merely that they are living apart,^ In order to bind the lands of the defendant the decree for alimony so soon as obtained should be registered. This is done under the 1 Oott V. Qott, 10 Grant, 643 2 Stonci V. Cooke, 7 Sim. 22. 3 Walsh V. Walxli. 1 Cham. Rep. 234. 1462 PROCEEDIXGS IN THE MASTER'S OFFICE. provisions of 28 Vic, ch. 17, sec. 4, which enacts that an order or decree for alimony may be registered in any registry office in Upper Canada, and such registration shall, so long as the order or decree registered remains in force, bind the estate and interest of every description which the defendant has in any lands in the county or counties where such registration is made, and operate thereon for the amount or amounts by such order or decree ordered to be paid in the same manner and with the same effect as the registration of a charge of a life annuity, created by the defendant on his lands would ; and such registration may be effected through a certificate by the Registrar of the court of such order or decree. Writ of Arrest — Setting aside. — The Court in an alimony suit on a motion to discharge the defendant from arrest under a writ of arrest, will look into the merits of the case so far as to enable it to judge whether the plaintiff had reasonable grounds to expect to succeed in her case, and in the absence of her showing such fair and reasonable grounds ; or, in the event of the defendant displacing the prima facie case made by her on obtaining the writ, he will be discharged. A writ of arrest had been granted on the affidavit of the plaintiff, alleging violence and ill-treatment on the part of the defendant, and showing that the defendant had advertized his stock and farm- ing implements for sale. A motion was made to set aside this writ, and the violence and ill-treatment were , denied. The plaintiff was shown t(j be a young robust woman, — the defendant an old man of sixty eight years, and the conduct of the plaintiff to have been violent and very immoral, and unchaste. On the denial of the defendant of any intention to leave the Province, and under the circumstances above stated, the writ was ordered to be set aside.^ Where it is referred to the Master to allot alimony, the order is brought into his office in the usual way, and such evidence as the plaintiff can furnish as to the means of the defendant is laid before him. The proceedings are those of ordinary cases. It is usual to make the alimony payable quarterly at some particular place and between some particular hours of the day — the place designated by 1 Macphcrmn v. Maepherson, 2 Cham. Rep. 222. DIVORCE — AMoONT OF ALIMONY. l-t63 the report shall be as convenient for the parties as possible. In default of payment the plaintiff may issue execution by fi. fa. or by sequestration in the usual way. There are several orders of our own Court which are to be ob- served. Order 488 provides that " Where the plaintiff in an alimony suit requires interim alimony, and costs, there is to be endorsed on the office copy of the biU served, or served therewith, a notice to the following effect : — Take notice, that the plaintiff de- mands as interim alimony, until the hearing of this cause, the monthly (or weekly) sum of $ to be paid to her on the day of each month (or week), at and the costs, according to the rules of the Court.' " Order 489 that " No appli- cation for interim alimony, or costs, is to be made until th^ time for answering has expired." Order 490 directs that " The defendant may, at any time before the aswer is due, give notice in writing that he submits to pay the interim alimony, and costs, as demanded by the notice ; and in that case no order is to be taken out until there has been a default in payment ; and in case of default, affidavits being filed verifying the two notices and the default, the order is to be issued on prcecipe.'' And order 491 that " The interim costs to the serving of the bill and notice inclusive, are to be $20 ; and thence to the hearing in- clusive (in a contested suit) the further sum of $40, exclusive of mileage on serving papers and witnesses' fees ; and if the defendant pays the former sum of money to the plaintiff's solicitor on or before the day his answer is due, and the latter sum on or before the day for which the same is set down to be heard, and pays the mileage and witnesses' fees when demanded of his solicitor, no order is to be made for interim costs, except of applications to the Court." On a question arising under 32 Vic, eh. 18, Ont, and the order • 491, it was held that the plaintiff in an alimony suit is not entitled to the $40 mentioned in the order.i 1 Gibb V. Giblt, 1 Cham. Rep. 401 1464 PEOCEEDINGS IN THE MASTER'S OFFICE. CHAPTEE XXXIII. COSTS. Costs in General. Where the Court adjourns the further consideration of a cause, it does not usually make any order as to costs until the further hearing. Where, however, some of the defendants are, or some part of the bill, is dismissed at the hearing, or where an improper defence has been set up, the Court usually disposes of the costs of the dismissed defendants, or the costs occasioned by the dis- missed part of the bill, or the improper defence, at the original hearing. 1 Where the costs are given generally by the decree, the subse- quent costs will be included f and this will be the case, although there is a reservation of "the costs of the suit not before provided for," if there are other costs which might be included under these words. ^ If, therefore, the subsequent costs are not intended to be included, the direction should be confined to the costs up to the decree.* The giving of costs in equity is entirely discretionary:^ as well with respect to the period at which the Court decides upon them, as with respect to the parties to whom they are given. It must not be supposed, however, that the Court is not governed by definite principles in its decisions relative to the costs of proceed- ings before it. All that is meant by the dictum, that the giving of costs in equity is entirely discretionary, is, that the Court is not, like the ordinary Courts, held inflexibly to the rule of giving the 1 Seton, 67. 2 Quarrell v. Beckford, 1 5Iad. 269, 286; Olutton v. Parcbii, T. & R. 304 ; Morgan JbDavey, 66,344. 3 Qimrrell v. Beckford, 1 Mad. 269, 286. 4 Seton, 57. For form of audi an order, see Seton. 56. 5 Scarborough v. Burton, 2 Atk. Ill ; Bennat College v. Carof, 3 Bro. C. C. 390 ; Millington v. Fox, 3 M, 4; C. 388, 362 : Remnant v. Hood, 6 Jur. N. S. 1173, L. JJ. COSTS. 1465 costs of the suit to the successful party ; but that it will, in award- ing costs, take into consideration the circumstances of the par- ticular case before it, or the situation or conduct of the parties, and exercise its discretion with reference to those points. In ex- ercising this discretion, however, the Court does not consider the costs as a penalty or punishment ; but merely as a necessary con- sequence of a party having created a litigation in which he Jias failed ;i and the Court is, generally, governed by certain fixed principles which it has adopted upon the subject of costs, and does not, as is frequently supposed, act upon the mere caprice of the Judge before whom the cause happens to be tried. A difference between the Courts of Law and Equity, with respect to costs, frequently arises from the nature of the property over which the' latter are called upon to exercise theii- jurisdiction. A large proportion of suits in equity are instituted for the purpose of obtaining the administration of property ; and, in cases of that description, the practice of the Court is, not to direct the costs of the proceedings to be paid by one party to another, but to order payment of them out of the estate. The Court will also, for the purpose of affording due protection to trustees or others concerned in the administration of trust property, order the costs they have been put to, to be paid out of the trust fund which is the sub- ject of litigation. In considering the subject of costs, the attention of the reader will, therefore, be directed : 1st, To the rules upon which the Court acts, in awarding the costs of a suit to be paid by one party to another ; and, 2ndly, To the rules which regulate its deter- mination, with regard to the payment of costs out of the subject- matter of the litigation. The Court of Chancery makes a dis- tinction with regard to the principle upon which the officer of the Court is to proceed, in the taxation of costs, by allowing a larger proportion of actual expenditure to parties holding particular characters than it allows in ordinary circumstances. This dis- tinction is marked by the terms of : " costs as between party and party," which are the ordinary costs allowed by the Court ; and 1 Per Lord Cranworth, in Clarke v. Uart, 6 H, L. Ca. 633 : 5 Jur. N. S. 447, 453 ; see also Wortham V. Lori Dacre, 2 K. & J. 437, 438 : Purser v. Darby, 4 K, & J. 41. 1466 PROCEEDINGS IN THE MASTER'S OFFICE. " costs as between solicitor and client," which are the costs al- lowed by the Court to parties filling the characters alluded to.^ A third section, therefore, will be devoted to the consideration of the principles of taxation, for the purpose of pointing out those cases in which the Court allows the taxation of costs upon a more ex- tended scale than the usual scale of taxation between party and party. After which will be considered : 4thly, The method of tax- ation, and the course to be adopted to bring the determination of questions relating to the taxation before the Court ; and, 5thly, The course to be adopted for enforcing the payment of the costs, when taxed. In treating further of the subject of costs, in the present section, the attention of the reader will be directed to the costs only of the general proceedings in the suit : that is, to those costs which are technically termed "costs in the cause." The rules with regard to the costs of interlocutory proceedings, and other incidental matters, will generally be found, upon referring to those parts of this treatise which have been appropriated to the consideration of those matters. Certain rules exist, with respect to the costs of interlocutory proceedings being, or not being, " costs in the cause ;" and those costs which do not come within the definition of costs in the cause, under these rules, cannot be obtained as such without the special direction of the Court. ^ What costs of interlocutory appHea- tions, by motion, are to be considered as " costs in the cause," may be collected from the following rules laid down by Sir John Leach, V. C, in 1823.^ These rules were the result of certain questions proposed to the Eegistrar, for the purpose of ascertaining in what cases the costs of a motion, where the Court gives no di- rection as to such costs, became " costs in the cause," to a party whose costs of suit are given upon the hearing, and are as follows : (1) That the party making a successful motion is entitled to his costs, as " costs in the cause ;"* but the party opposing it is not 1 The importance of this distinction has been somewhat diminished by Ord. 307 : seepost. Formerly, in cases of notorious frauds, the Court made the defendant pay exemplary costs ; but this practice lias been disused, from the difficulty of carrying- it into execution : Walthanl v. Broughton, 2 Atk. 43. 2 Gardner v. Marshall, 14 Sim. 575, 588: 9 Jur. 958 ; see, however, Hind v. Whitmore, 2 K. & J. 458 ; Finden v. Stephens, 12 Jur. 319, L.C., overruling S. C. 16 Sim. 40 : 11 Jur. 898. 3 Memorandum, 1 S. & S. 357 ; Morgan i, 33 Beaf. 306 ; Coiogill v. Rhodes, ib. 310, 314 ; and see Marriott v. Marriott, 12 W. R. 303, V. C. W. 2 iridte V. Wilson, 13 Ves. 87, 92. 3 Hoddel v. Pugh, 33 Beav. 489. 4 Cmmnander v. Gilrie, 6 Grant 473. 5 Webb V. Claverden, 2 Atk. 424 ; Seal v. Broionton, 3 Bro. C. C. 214 ; Johnson v. Qardiner, 1 Dick. 313 ; Swinfen v. Swinfen, 27 Beav. 148, 167. C Blinlcehorne v. B'east. 1 Dick. 163. 7 Scaife v. Scaife, 4 Russ. 309 ; see also Tatham v. Wright, 2 R. & M. 1, 32. It seems, from some early cases, to have been the doctrine of the Court, that an heir at law, or heir male of the honour of a family, has a right to come into equity for a production and inspection ot tlie deeds by which he is disinherited ; and that, if he does so, he will not be liable to costs ; see Lcinan v, Alie, Amb. 163 ; Harrison v. Southcote, 2 Ves. S. 389, 396 : 1 .4 tt. 639 ; JEarl of Suffollr v. Howard, 2 P. Wms. 177 ; Shales v. Barrington, 1 P. Wms. 481. , COSTS FROM ONE PARTY TO ANOTHER. 1473 Another case in which the Court generally gives costs to the party, without reference to his success in the suit, is that of a mortgagee or other incumbrancer having a specific lien upon pro- perty : the principle of the Court being, that where the owner comes to deliver the estate from the incumbrance which he him- self, or those under whom he claims, have put upon it, the person having that pledge is not to be put to expense with regard to that proceeding; and so long as he acts reasonably as mortgagee, to that extent he ought to be indemnified.^ This principle was formerly applied, also, to those cases in which, although the tran- saction between the parties did not originally consist in borrowing or lending money, or charging an estate with a particular sum, the Court thought proper to consider a party advancing money in the light of a mortgagee or incumbrancer. The cases to which allu- sion is made are those in which the Court orders securities to be delivered up, or sales of reversionary interests to be set aside, be- cause the bargain has been unconscientious : in these cases, the Court generally decrees for the plaintiff, upon terms that he shall repay the defendant the amount actually advanced or paid by him, with interest ; and, looking upon him as a mortgagee for that amount, it formerly treated him as such, by ordering the plaintiff to pay him his costs.^ The Court now, however, considers c'ases of this description to be analagous to redemption suits, where the mortgagee resists the right to redeem ; and no costs are given on either side f but if the defendant has refused to accept terms which were better than those to which the Court considers him entitled, he will be ordered to pay the cost of the suit.* A mortgagee is always entitled to his costs, and, therefore, flrhen a subsequent mortgagee who has filed a bill to foreclose offers to consolidate his suit with that of the prior mortgagee who has filed a bill after him, he will be allowed his prior costs in such suit.^ 1 Detittin v. OaU, 7 Ves. 683 ; Loftus v. Swift, 2 Sch. & Lef. 643, 667 ; Taylor v. Baker, Dan 71 and see Fisher, 554, et seq. ; Morgan & Davey, 155, et seq. ; Seion 376, et seq. 2 Peacock v. Evans, 16 Ves. 612 ; Oowland v. De Faria, 17 Ves. 20, 26 ; Boioes v. Heaps, 3 V. & B. 117, 121 ; and see Priestly v. Wilkinson, 1 Ves. J: 214. 3 Salter v. Bradshaw, 26 Beav. 161 ; 5 Jur. N. S. 831 ; Bromley v. Smith, 26 Beav. 644 ; 6 Jur. N. S. 833 ■ St. Albyn v. Harding, 27 Beav. 11 ; Foster v. Roberts, 29 Beav. 467 ; Talbot v. Stani/orth, IJ.'&H. 484. 4 Emmet v Tottenham, 10 Jur. N. S. 1090 ; S. C. nom Tottenham v. Emmet, 13 W. R, 123, M. R. ; and see Berdoc v. Dawson, 11 Jur. N. S. 254; 13 W. R. 420, M. R. 6 Allan v. MeDougaU, 6 U. C L. J. 64. 69 U7(> PROCEEDTXriH IX THK MASTER'S OFFICE. At Law, after a mortgage is forfeited, the estate is the absolute property of the mortgagee, and he may deal with it as his own ; he piay sell it, or encumber it, or devise it. If, therefore, the mort- gagor applies to a Coui't of Equity for redemption, it is only granted to him upon the terms of indemnifying the mortgagee from all costs arising out of his legal acts : thus, a mortgagor, filing a bill to redeem, must pay the costs, not only oi the mortgagee himself, but of all persons claiming under him.^ The same rule applies to a foreclosure, as well as a redemption suit ; and, in general, it makes no difference whether the bill is filed by the mortgagor to redeem, or by the mortgagee to foreclose : in either case, the mortgagee is entitled to his principal, interest, and costs. Thus, where a mortgagee assigned his mortgage money to the trustee of his marriage settlement, and afterwards filed a bill of foreclosure against the mortgagor, to which the trustee was made a party, he was ordered to pay the costs of the trustee, and to add them to the mortgage debt.^ Where, however, a second mortgagee filed his bill to redeem the first, and foreclose subsequent mortgages, and the estate was not sufficient to pay the first mortgage, the bill was dismissed, with costs as against the first mortgagee, and with- out costs as against the other defendants.^ A mortgagee will not only be allowed his own costs, and the costs of those claiming under him, but he will be allowed, as against the estate, all costs which he may have incurred in assert- ing or defending his title to the estate. Thus, where a mortgagee had filed a bill of fofeclosm-e, he was allowed the costs he had in- curred in procuring administration to an annuitant under the will of the mortgagor : such annuitant being a necessary party to the foreclosure.* So, where an infant, claiming under a mortgagor, had endeavoured to defeat the mortgage by setting up a supposed entail, and after a special verdict, and great litigation at Law, the mortgagee prevailed, whereupon the infant brought his bill to redeem, and the mortgagee swore that he had expended above 120Z. in defending his mortgage at Law : although he had but 60L 1 Wtherell v. Colling, 3 Madd. 265 ; Colen v. Forreit, 10 Beav. 662, 566. As to costs in .suit by pauper, see Batchelor v. Middleton, 6 Hare, 86. 2 Bartle v. Wilkin, 8 Sim. 238. As to the costs of the solicitor to the suitor's fee fund, as guardian for an infant defendant, in a foreclosure suit, see Harris v. Hamlyn, 14 Jur. 65, V. C K. B. 3 SibtOK V. Nicol, 9 Beav. 403, 407. 4 Hunt V. Foumes, 9 Ves. 70. COSTS FROM ONE PARTY TO ANOTHER. 1477 costs allowed him there, it was held that he should not be confined to his taxation at Law, but should, upon the account, be allowed all he had laid out or expended ; and it appearing that the mort- gagee, fearing his mortgage would have been defeated at Law, got administration as creditor in the Ecclesiastical Court, he was allowed his costs expended there also.^ And so, in another case, where a first mortgagee, after he had been put to great expense in suits to foreclose, and otherwise in respect to the estate, had a bill filed against him by a second mortgagee to redeem, the Court ordered that his costs should not be taxed asin an adverse suit, but that he should be allowed all his costs and expenses, as is done in the case of a solicitor who lays out and disburses money for his client : the rents to be applied, in the first place, to pay such costs, before they were applied to sink the principal.^ And on a bill for redemption. Sir John Leach, M. E., gave to the mortgagee the costs of an action, which he had brought against a person who had joined the mortgagor as surety, in a bond for the mortgage money : the fruit of the action being lost by the insolvency of the surety : and his Honor stated the principle to be, that the mortgagee was entitled to be allowed, in account, against the mortgagor, all expenses properly incurred for the recovery of the mortgage money .^ All extra costs and expenses should, however, be asked by the bill, and mentioned in the decree.* Upon the same principle, it is stated that, if a mortgagee or real creditor is brought before the Court to have his security impeached, and the bills is dismissed, there is hardly an instance in which it is not with costs : for, being brought before the Court without just grounds, the Court would not do him justice, unless costs were given to him, as he is a creditor and incumbrancer.^ In Brodie V. St. Paul,^ however, where certain mortgagees and trustees were brought before the Court upon a bill for specific performance of 1 Ramiden v. Langley. 2 Vem. 636 : 1 Eq. Ca. Ab. 328, 829, pi. 5. But an equitable mortgagee will not be entitled to the costs incurred at law in unsuccessfully defending his posses.fion : Dryden V. Frott, 3 M.-& C. 670, 675. 2 Lomax v. Hide^ 2 Vem. 186 ; Ainsworth v. Roe, 14 Jur. 874, M. R. 3 Ellison V. Wright, 3 Russ. 458 ; Peers v. Ceeley, 16 Beav. 209. 4 Seton, 381. For fomis of orders as to such extra cests and expenses, see ib, 396. 5 Per Lord Hardwicke, in Taner v. Ivie, 2 Ves. S. 466, 468. 6 1 Ves. J. 326, 334. 1478 PROCEEDINGS IN THE MASTER'S OFFICE. an agreement for a lease, not for the purpose of impeaching their title, but as necessary parties to confirm the lease, and the bill was dismissed against the principal party without costs, on account of the hardship of the case, the mortgagees and trustees were refused their costs : Mr. Justice BuUer, who heard the cause, saying, that if the decree had been for the plaintiff, perhaps he might have given the trustees their costs, because he could have given them over against the other defendants ; but that, as it was, they must have theii' remedy against their principal. The rule, that the mortgagor is to pay the costs of the mort- gagee, and of those made necessary parties by his act, does not apply where the title to the mortgage is disputed ; and, in that case, the mortgagee's costs should only be borne by the estate, as against the persons interested in the equity of redemption, when they have concurred or assisted in the litigation.^ Upon this principle, where the plaintiff was devisee of a mortgagee, and filed his bill against the mortgagor for a foreclosure, making the heii- at law of the mortgagee a party, in order to have the will estab- lished against him, Lord Kenyon, M. E., thought the estate ought not to be burdened with his costs.^ So, where the mortgagee, after bill of foreclosure filed, became insolvent, the costs of his assignee, made a defendant, were not thrown on the mortgaged estate.^ And, in general, if a mortgagee, after a decree to account, assigns his interest to another, the costs of the proceedings neces- sary to bring the assignee before the Court must be paid by the mortgagee.* In these cases, the costs given to a mortgagee are scarcely in the nature of costs in the cause : they are rather sums that the mort- gagee has a right to be paid, before the relief asked for against him can be granted. The rule, that a mortgagee is to have his costs paid, is subject to an exception in cases where he is a lunatic. In such cases, the costs of the committee of a lunatic mortgagee, requisite to enable 1 Parker \. Watkins, 1 Johns. 133 ; and see PeUy v. Wathen, 7 Hare, 372 : 14 Jur. 9. 2 Skipp V. WyaU, 1 Cox, 363. 3 Horum v. ITooionflAom, 1 Beat. 1. 4 Barry v. Wrey, 3 Russ. 466. COSTS FROM ONE PARTY TO ANOTHER. 1479 him to convey to the mortgagor under the statute, are to be paid out of the lunatic's estate, where the .lunatic is beneficially inte" rested in the mortgage money, and the application is made by the committee.^ Where it clearly appears, on the face of the mort- gage deed, that the lunatic mortgagee is only a trustee, the mort- gagor must bear the costs f but this will not be ordered, where the trust does not appear on the deed.^ If the mortgagor applies, he must pay the costs of obtaining the order, unless the committee has declined to apply for it.* The right of a mortgagee or incumbrancer to his costs will pre- vail, in cases in which the Court directs a sale of the property pledged ; and the mortgagee is entitled to the payment of his costs, before the subsequent mortgagees receive any part of their princi- pal, interest, or costs : the practice of the Court being to direct each mortgagee to be paid his principal, interest, and costs, accord- ing to his priority f but it has been held, that where a mortgagee commences or adopts a suit for the administration and sale of the mortgagor's estate, he does not rest exclusively on his contract, but seeks something beyond it ; and the costs of the suit are the first charge, if the estate prove deficient.® It has also been held, that an equitable mortgagee, by filing a bill for the sale of the mort- gaged property, and the payment of the balance out of the general assets, and for administration, does not render the proceeds of the mortgaged estate liable to the costs of the suit, in priority to the plaintiff's claim.' Where the suit is instituted by a subsequent incumbrancer, to ascertain priorities, making a prior mortgagee or incumbrancer a party, the subsequent incumbrancer ought to offer by his bill to 1 Ex parte Richards, 1 J. & W. 264 ; Re Wheeler, 1 De G. M. & G. 434 ; Re Viall, 8 De G. M. & G. 439 ; contra, Re Marrow, C. & P. 142 ; Re Riddle, 23 L. J. Ch. 23, L. JJ. ; Morgan d: Davey, 171. 2 Re Lewes, 1 McN. & G. 28. 3 Re Tovmsend, 2 Phill. 348 ; 1 McN. & G. 686. 4 Re Stuart, 4 De G. & J. 317 • Re Jones, 2 De G. P. A' J. 654 : 7 Jur. N. S. 115. 5 Belchier v. Butler, 1 Eden, 523 : Upperton v. Harrison, 7 Sim. 444 ; Barnes v. Rac.-iter, 1 Y. At C. C. C 401, 407 : 6 Jur. 695 ; Hepworth v. Heslop, 3 Hare, 485, 487 : 9 Jur 796 ; Wilde v. Lock- hart, 10 Beav. 320, 323- Oarr v. Uenderson, 11 Beav. 415 ; Outfield v. Richards, 26 Beav. 241 ; Crosse v. General Reversionary Company, 3 De G. M. & G. 698; Langton v, Langton, 7 De G.M. & G. 30 : 1 Jur. N. S 1078 ; and see Berr]/ v. Hetblethwaite, 4 K. & J. 80 ; see also Seton, 293, 379 : contra, Keiiebel v Scrafton, 13 Ve.s. 370. 6 Armstrong v. Storer, 14 Beav. 535; White v. Gudgeon, 30 Beav. 545; Dighton v. Withers, 31 Beav. 423 ; Seton, 293, 379 ; but see Judgment of L. J. Turner, in Wai'd v. MackiiUay , 10 Jur. ST. S. 1063, 1064 : 13 W. E. 65 ; See also Alddridge v. Westbrook, 5 Beav. 188, 193. 7 Tipping v. Power, 1 Hare, 405, 407 : 6 Jur. 434 ; Wade v. Ward, 4 Drew. 602 ; and it seems that according to V. C. Wood, tiie same rule applies to a legal mortgage ; Seton, 293, 380 ; Berry t. Hebblethwaite, 4 K. & J. 80 ; Tuckley v. Thompson, 1 J. & H. 126. 1480 PROCEEDINGS IN THE MASTER'S OFFICE. redeem the prior incumbrancer ; and, if he omits to do so, the ]3rior incumbrancer has a right to insist upon being dismissed with costs. But if the prior incumbrancer, instead of asking to be dismissed, consents to a sale, and to take his principal and interest out of the proceeds, he must, as he thereby adopts the suit and takes the benefit of it, contribute to the costs of it : there- fore, the costs of all parties will be paid out of the fund, even though there may not be enough left to pay the prior incumbrancer his principal and interest.^ Where, however, the property had been preserved by the diligence of the plaintiff, a puisne incumb- rancer, his costs were first provided for ; and the costs of the other incumbrancers were directed to be added to their securities, and paid according to their priorities.^ A bill for sale was filed by a puisne incumbrancer, and prior in- cumbrancers and mortgagees were made parties in the Master's office, and a decree on further directions made for payment accord- ing to priority. The proceeds of a sale proved insufficient to pay the first incumbrancer. An application on part of the plaintiff to have his costs of suit and of sale paid out of such proceeds in pre- ference to the first incumbrancer was refused with costs.* The rule above laid down, that a mortgagee or incumbrancer is entitled to his costs, as well as to his principal and interest, is liable to exception, also, in cases in which the Court considers him guilty of any misconduct with reference to the suit, or the subject of it. In DetillinY. Gale,* Lord Eldon said: ''Though a mort- gagee, acting reasonably as such, is to have his reasonable ex- penses, it does not follow that he can claim his own expenses from other persons, with whom he is litigating, with regard to those acts which, upon his part, are not only unreasonable but grossly oppressive." In that case, the mortgagee was deprived of his costs of that part of the suit where he had been guilty of improper con- duct. So, where a mortgagee sets up an unfounded claim,* or an unjust defence, insisting on his deed as an absolute purchase, he 1 White V. Bishop 0/ Peterborough, Jac. 402 ; see also Brace v. Duchess oj Marlborough, Mos. 60 : Seton, 330. 2 Ford V. Earl of Cheaterfieli, 21 Beav. 426 ; Wright v. Kirby, 23 Boa v. 463. 3 Grange v. Barber, 2 Cliam. Rep. 189. 4 7 Ves. 583, ^86; and see v. Trecothick, 2 V. & B. 181 ; Loftusv. Sioi/(, 2 Sch.'& Let. 642,667. 5 Montgomery v. Calland, 14 Sim. 79, 81. (JOST.S FKOM ONE PAllTY TO ANOTHER. 14^81 will be deprived of his costs.^ And from the case of Sj}tith v. Greeri^ it appears that, if a first mortgagee receives from a second mortgagee a tender of all that is due for principal, interest, and costs, the first mortgagee will not be entitled to the costs of a fore- closure suit after the tender. Nor will he be allowed his costs in a redemption suit, if he has not been ready with and offered to show his accounts.^ In answer to a bill for the redemption of a mortgage, alleging the existence of usury in the original transaction, the mortgagee 3et up several defences which were decided against him, the Court in decreeing redemption, ordered the plaintiff to pay such costs as would have been incurred in a common redemption suit, and the defendant to pay the costs of the issues found against him.* In a suit to redeem the plaintiff alleged several grounds for relief, which he failed to establish, although he succeeded in shewing a right to redeem, which right the defendant had contested : the Comrt, under the circumstances, refused costs to either party up to the hearing, and gave the defendant the subsequent costs of a redemption suit, where the right to redeem was admitted.^ In Detillin v. Gale, before referred to. Lord Eldon appears to have expressed an opinion, not only that a mortgagee might be deprived of his costs, but that, under some circumstances, he might be called upon to pay costs. He there said : " It is said it will be an extremely bad precedent to hold, that in no case a mortgagee can be called upon to pay the costs of the mortgagor. I will not say the Court will not, and am very far from saying the Court ought not, to make that precedent ; but it ought to be made upon very great consideration."® His Lordship afterwards referred to she case of Shuttleworth v. LowtherJ in which Lord Lonsdale, a mortgagee, was made to pay costs (on the ground of a tender, and m appropriation of the money : which was paid into a bank and refused), as affording an instance in which a mortgagee had been 1 Frayicklyn v. Fern, Barnard. 30 ; see also Sevier v. O-reenway, 19 Yes. 413, 415 ; Kirkham v Smith, 1 Ves. S. ^58, 262 ; Wheaton v. Gmhanv, 24 Beav. 483 ; Re Unsworth, 13 W. R. 448, V. C. k'. 2 1 Coll. 555 : see alro Wllliamti v. Sorreil, 4 Vl'S. 389. 3 Powell V. Trotter, 1 Dr. & Sm. SS6. 4 Isherivood v Dixon, 5 Grant 314. 5 Boswell V. &rmeley, 16 Grant 528. 6 7 Ves. 583, 686. 7 Cited ib. ; and see Roberts v. WUliams, 4 Hare, 129, 1.31 ; Emmet v. Tottenham, 10 Jur. N. S. 1090 ; S. C. nom. Tottenham v. Emmet, 13 W. R. 123, M. R. ; Hoskin v. Sincock, 11 Jur. N- S. 477 : 13 W. R. 487, V. C. K. 1482 PROCEEDINGS IN THE MASTER'S OFFICE. made to pay the costs ; and there are other cases in the books which may be cited in support of the same proposition. Thus, in Mocatta v. Murgatroyd} the mortgagee was ordered to pay costs to the plaintiffs, who were indorsees of subsequent mortgages or bills of sale of a ship ; but he was not to have his costs over, against the first mortgagor : Lord Cowper saying, that it was not reasonable that he should onerate his pledge with costs occasioned by his unjust defence ;^ and this principle has been acted upon in Harvey v. Tehhutt,^ where a mortgagee, who had resisted the right to redemption, by setting up a decree of foreclosure collusively obtained, was decreed to pay so much of the costs as was occasioned by his resistance. A mortgagee having omitted to give credit on the deed, or in his books, for sums of money paid to him by the mortgagor, his exe- cutors, after his decease, claimed a large sum to be due on the foot of the mortgage. The mortgagor tendered a certain amount, say- ing, at the same time, that he was willing to pay any additional sum that might appear due, after giving him credit for the siuns alleged to have been paid. A bill was afterwards filed by the representatives of the mortgagee to foreclose, and on taking the account, a sum of between £2 and £3 over and above the amount tendered, was found to be due. The Court, under the circum- stances, ordered the plaintiff to pay the costs.* Where a mort- gage debt has been reduced to a sum of about £1 14s., the mortgagee, who had taken an absolute deed, distrained for £40, claiming that amount to be due, the Court, upon a bill filed by the mortgagor to redeem, refused the mortgagee his costs.^ Where a mortgagee, by a bill of foreclosure, attempted to tack a *bond to a mortgage as against creditors, the bill was to that extent dismissed with costs f and where the difficulty in a foreclosure suit was occasioned by the loss of the mortgage deed, the mortgagee was ordered to pay the costs -^ and a similar order was made, where a IIP. Wms, 393, 395. 2 See also Baker v. Wind, 1 Yes. S. 160; England v. Codrington, 1 Eden, 169, 174 ; Lord Cranstovm v Johmton, 6 Ves. 277, 279 ; Taylor v. Baker, Dan. 71. 3 1 J. & W. 197, 202. 4 Cornwall v. Brown, 3 Grant 633. 5 Long v. Glen, 5 Grant 208 ; and see Mossop v. T. X- L, Co,, 11 Grant 204. 6 Hamerton v. Jtogens, 1 Ves. J. 613. 7 Stokm V. Rolson, 19 Ves. 385 ; and for the order, see Seton, 629, No. 1. COSTS FROM ONE PARTY TO ANOTHER. 1483 redemption suit was rendered necessary by the mortgagee haAdng lost the title-deeds.^ A party in possession of land under an agreement in the nature of a Welch mortgage, having refused to give any statements of rents received, or information as to the amount due, a bill was filed by the mortgagor for an account. Notwithstanding that on taking the account between' the parties, a balance was found to be still due to the defendant, the Court ordered him to pay the costs of the suit.^ A mortgagee who takes a deed absolute in form, instead of with a defeazance, and then fraudulently denies the right of redemption, setting up the deed as constituting an absolute purchase, is guilty of such misconduct as will subject him to the payment of the costs of the suit.^ But although a mortgagee may, under peculiar circumstances, not only be deprived of his costs but be ordered to pay them, there must be positive misconduct on his part to bping such a visitation upon him.* The mere circumstances that he has extended his claim beyond what the Court finally decides he is entitled to, will not be a ground for refusing him his costs ;•' and, although he may have suggested a doubt as to the mortgagor's title to redeem, yet, if the Court thinks there is sufficient ground for entertaining such doubt, he will not be charged with the costs, even where his doubt eventually proves unfounded. Thus, where, on a bill by a devisee .to redeem, the mortgagee insisted that the heir of the mortgagor was alive, and an issue was directed to try whether he was living or dead, upon the trial of which the jury found that he was dead. Sir John Leach, V. C, determined that the mortgagee must not pay the costs of the issue, as he could not be charged with vexation in a case where the Court thought there was so much weight in his objection as to direct an issue.^ The right of a mortgagee to his costs is not defeated by the cir- cumstance of his having remained in possession of the estate after the rents and profits received by him have been sufficient to pay 1 Lord Middlet(m v. Eliot, 15 Sim. 531 ; and for the order, see S&i(mt 629, No. 2. 2 Morrison v. Nevins, 5 Grant, 577. 3 Letarje v. Le Vuyle, 3 Grant, 595. 4 Loftus V. Swift, 2 Sch. & Lef. 642, 667. 5 IMd.; Norton v. Cooper, 6 De G. M . & G. 728 ; and see Tanner v. Beard, 3 Jur. N. S. 427, M. E. 6 Wileon v. Metcalfe, 3 Mad. 45. 1484 I'KOGEEDINGW IN THE MASTER'S OFEIOE. off the principal money and interest due upon the mortgage : ' the estate being considered as much a security for costs as for the principal and interest ; and a decree for costs almost necessarily following a decree for payment of principal and interest.^ If, how- ever, in a foreclosure^ or redemption* suit, it turns out, on taking the account, that on the day on which the bill was filed (to which time the account will be directed,) nothing was due to the mort- gagee, he must bear the expense of the" suit ; and where a mort- gagee in possession, by his answer untruly alleged that the mortgage was not satisfied, he was ordered to pay the costs sub- sequent to his answer.^ Where a mortgagee files a bill to forclose, and a question arises at the hearing whether he has not received sufficient to pay off the incumbrance before commencement of the suit, the costs will be reserved.^ A defendant should raise his defence in the least expensive man- ner ; therefore, if he enters into evidence in a case in which he might have demurred'' or pleaded,* the bill will be dismissed with- out costs ; or the defendant will be disallowed the extra costs occasioned by his having defended the suit.^ And plaintiffs, who instituted two suits where one would have been sufficient, have been refused the costs occasioned by the double proceedings.^" In coming to a decision upon the subject of costs, the Court is frequently governed by its wish to discourage unnecessary litiga- tion. In Millington v. Fox,^^ Lord Cottenham said, that he was very much disposed, as a general rule, to make the costs follow the 1 Owen V. Oriffi,th, 1 Ves. S. 250 : Amh. 620 ; Lord Tn-deston v. Hamil, 1 B. & B. 377 ; WUson v. Metcalfe, 1 Russ. 530, 536 ; but see covtra, Woodroft r. SoySy cited Beaines on Coats, p. 26. 2 East India Company v. Ekines, 2 Bro. P. C. ed. Toml. 382 : 6 Vin. Ab. 365, pi. 13 ; Thomas v. Puddlesiury, Sel. Ca. Oh. 61. 3 Binnington v. Harwood, T. 4 R. 477, 486. 4 Barlow v. Gains, 23 Beav. 244. 5 Montgmnery v. Calland, 14 Sim. 79, 81 : and see Snagg v. Frlzell, 3 Jo. & Lat. 383 : Powell v. Trotter, 1 Dr. & Sm. 388. 6 Gooderham v. De Orassi, 2 Grant, 136. 7 Jones v. Davids, 4 Buss. 277, 278 ; Hill V. Reardon, 2 S. & S. 431, 439 ; HoUingsworth v. Shake- shaft, 14 Beav. 492 : Webh v. England, 29 Beav. 44 : 7 Jur. N. S. 153 ; Ernest v. Weiss 9 Jur. N. S. 145, V.C.K. ; Nesbit v. Berridge, ib. 1044: 11 W. R. 446, 443 M. R. ; but see S. C, 10 Jur. N. i^. 53 : 12 W. R. 283, L. C. ; Morocco Company v. Fry, 11 Jur. N. S. 76, 78 : 13 W.R. 310, 312, V.C.S 8 Sanders v. Benson, 4 Beav. 350, 367 , Jackson v. Ogg, Johns. 397, 402. 9 Godfrey v. Tucker, 33 Beav. 280 : 9 Jur. N. S. 1188, M. R. ; and see Morgan e allowed ou the taxation, or any variation from a taxation as between party and party, is to be allowed, it should be expressed in the decree.^ Where costs are payable out of a fund in Court, they are ordered to be paid to the solicitor of the party ; but in other cases, they are always ordered to be paid to the parties themselvea* Where it is intended that the costs of persons appearing at the hearing who are not parties to the record should be paid, their names must be specifically mentioned in the order : for a direction to pay the costs of all parties, only includes the costs of the persons parties to the record. It may here be noticed that order 318 provides that "Where an order directs the plaintiff's costs to be taxed, and the Master finds that the suit is one within the jurisdiction of the County Court, he is not to tax any costs under the said direction, unless the order contains a declaration that in the opinion of the Court, the cause is a fit and proper cause to be brought in this Court instead of the ,County>Court." Before the order it was held that where the Master was directed by a decree to tax the costs of the suit, he had no iurisdiction to decline taxing them if he found that the suit might have been 1 Whalley v. Ramadge, 8 L. T. N. S. 499, V. 0. K. 2 Colinan v. Sarie.ll, 2 Cox, 206 ; see also Horns v. Norris, 1 Cox, 183; Kendall v. Marsters, 2 De G. P. & J 200 ; but see Viney v. Chaplin, 3 De G. & J. 282, 3 Seton, 92. . 4 IKd. For form of order, jee Seton, 90. 1510 PROCEEDINGS IN THE MASTER'S OFFICE. brought in the County Court.^ When a plaintiff files a bill in this Court to foreclose a mortgage for a sum within the jurisdiction of the County Court, no costs will be allowed him, the fact that the defendant is resident in a county other than where the land is situate will not vary this rule.^ Where a bill is filed to foreclose in respect of a demand not exceeding £50, the plaintifi'will be entitled to his full costs if it appears that there is any encumbrance beyond that sum.^ Where the plaintiff's claim on the premises together with the amount of a subsequent mortgage exceeded $200, it was held to be beyond the jurisdiction of the County Court. Semhle. The necessity for an order for substitutional service, would appear to be sufficient reason for filing a bill in this Court, which might other- wise have been filed in the County Court.* The act giving to County Courts equitable jurisdiction in relation to mortgages when the sum does not exceed $200 does not appty when the defendant is resident out of the jurisdiction ;^ nor where all the defendants do not reside in the County.^ Costs out of the Fund. In the last section some of the principles have been pointed out by which the Court is governed in awarding the cost of a suit, in cases in which, the subject of litigation not being a fund or estate under the administration of the Court, the costs must necessarily be paid by one party to another. It is now proposed to consider those cases in which an estate, whether real or personal, being the subject of litigation, the court will order the costs of the suit, or those of some of the parties to it, to be defrayed out of the fund or estate. As a general rule, wherever an estate or fund is administered by the Court, the costs of all necessary and proper parties to the pro- ceedings are a first charge ; and must be defrayed thereout, before the claims of the persons beneficially entitled thereto are satisfied.' But the costs only of those proceedings which were, in their origin, properly directed for the benefit of the estate, will be directed to be thus paid ; and the costs of any unnecessary and useless proceed- 1 McLeod V. Millar, 12 Grant, 194. 2 Connell v. Curran, 1 Cham. Rep. 11. 3 Hyman v Roots, 11 Grant, 202. 4 Seath v, Mcllroxj, 2 Cham. Eep. 93. 5 Lawrason v. Fitzgerald, 9 Grant. 371. 6 McLeod v. Millar, 12 Grant, 194. 7 Hare v. Rose, 2 Ves. S. 668 ; Ford v. Farl of Chexterfield. 21 Beav. 42(5 ; Barnwell v. Iremonger, 1 Dr. t Sm. 255, 268 ; and see Atto-riiey-Qeneral v. Lawes, 8 Hare, 32. As to costs, generally, in suits for administration of assets, see Morgan cfc Davey, 109, et seq. COSTS OUT OF THE FUND. 1511 ings must be paid by the person at whose instigation they were taken.i It may be mentioned here, that costs of a litigation in the Court of Probate will be postponed to the costs of administration in the Court of Chancery.^ Ti'ustees,^ agents, and i eceivers, accounting fairly, and paying their money into Court are entitled to their costs out of the estate, as a matter of course ;* and the same rule extends to personal represen- tatives;^ to whom, as they can only obtain complete exoneration by having their accounts passed in the Court,^ the Court will give every opportunity of exonerating themselves, by passing their ac- counts at the expense of the estate. The rule is not confined to cases in which they are brought before the Court as defendants : it being a general principle, that a trustee has a right to the protec- tion of the Court, in the execution of his trust ; he is therefore, en- titled to his costs, whether he comes before the Court as plaintiff or defendant, unless the act required to be done leads to no responsi- bility, or his motive is obviously vexatious.' Where trustees filed a bill for the purpose of having the trusts of the deed appointing them carried into execution without suggest- ing the existence of any difficulty in the way of their winding up the affairs of the estate, the Court refused them their costs of the suit.^ In an administration suit it appeared that the step-father of the children of the deceased, and who had the care of such child, had been sued for the child's board while at school, her mother being a creditor of the estate, and neither she nor her husband having any funds to pay for such board, while there were funds applicable there- 1 Serilett v. Wood, 9 W. E. 817, L. C. ; and Westover v. Chapman, 1 Coll. 181, 183. 2 Major V, Major, 2 Drew. 281. 3 Aa to costs of trustees generally, see Lewin on Trusts, 663, et seq. \ Hill on Trustees, 571, et seq. ; and of trustees, executors, and administrators, Morgan ik Davey , 2S8, et aeq. 4 Attorney-General v. City of London, 1 Ves. J. 243, 246 : 3 Bro. C. C. 171 ; Courand v. Hanmer, 9 Bear. 8. 6 Rashley v. Masters, 1 Ves. J. 205 ; Samuel v. Jones, 2 Hare, 246 ; 7 Jur. 845. The rule applies to the executors of a defaultiiiff trustee who account fairly ; Raldenhy v. Spoj^orth,9 Beav. 196 ; Horne v. Shepherd, 3 Jur. N. S. 806, V. C. S. ; but see Lyse v. Kingdon, 1 Coll. 184, 189 : 8 Jur. 418 6 See KnatchbuU v. Feamhead 3 M. & C. 122 ; Hay v. Bowen, 5 Beav. 610, 616 : 6 Jur. 1119. 7 Curteis v. Condler, 6 Madd. 123; Poole v. Pass, 1 Beav. 600, 604; Holford v. Phipps, 3 Beav, 484, 440 ; 4 Beav. 475 ; Whitmarsh v. Robertson, 1 Y. & C. C. C. 715, 717 : 6 Jur. 921, 923 : Noile v. MeyiiiOtt, 14 Beav. 471. A trustee is not entitled to his costs on the mere ground that he acted on the opinion of counsel ; see Devey v. Thornton, 9 Hare, 232 ; King v. King, 1 De G. & J. 663, 666, 671, 674 : 4 Jur. N. S. 721 ; Re Knight's Trusts, 27 Beav. 46, 49 ;'6 Jur. N. S, 326 ; see, however, as to costs of a bankrupt executor or trustee, Samuel v, Jones, 2 Hare, 246 : 7 Jur. 845 ; Cotton v. Clark, 16 Beav. 134 : 16 Jur. 879 ; Turner v. Mullineux, 9 W. E. 252, V. 0. W. 8 Cummings v. Macfarlane, 2 Grant, 167. 1512 PROCEEDINGS IN THE MASTER'S OFFICE. to : it was held that the step-father should be allowed the costs of such suit.i In an administration suit the widow of the testator had made a claim for dower which had been allowed ; and upon an appeal from that decision the Court of Appeal reversed the judgment of the Court below, in so far as it had allowed the claim for dower, but gave no directions as to the payment of the costs of the appeal. The appellants having paid their own costs of the appeal, this Court upheld the finding of the Master in allowing them such costs out of the estate.^ Under an administration order obtained by a creditor the executors admitted a certain sum money in hand, part of which they objected to pay into Court, on the ground that it had been paid by them to their solicitor for watching and protecting the interests of the estate, upon claims of creditors brought inta the Master's office. It was held that they were entitled to do so, as it is the duty of executors to protect and look aftei the interests of the estate upon those enquiries, and this they do, not strictly as accounting parties, but in virtue of their representative character.^ The report in an administration suit found £1,403 chargeable against an executor. Of this sum £1,247 was for the price of land claimed and received by the executor, the testator's son as heir, and his claim to this had long been acquiesced in by the other parties interested till held otherwise in this suit, when this purchase money was declared to pass, under the testator's wiU, to the claimant and others as legatees. A sum of £133, the value of the testator's chattel property, left by this executor in the hands of the testator's widow, and finally lost to the estate, made up the remainder of the sum charged to this executor, except a balance of about £34. Under the circumstances the executor was allowed his costs, as of an administration, out of the estate, and was not charged with interest on the balance in his hands, which he was required to pay into Court within a month after deducting therefrom his share of the estate as legatee. * Executors are usually entitled to their costs as between solicitor and client out of the estate — incurred any other costs, charges, and expenses — and if they have in addition to the costs of the suit in the administration of the estate, on this fact being stated to the Court, but not otherwise, an inquiry will be directed, and the Master wiU be authorized to include them in his account. Where 1 Memies v. Ridley, 2 Grant, 644. 2 Ihid. 3 Ee Babcock's Estate, 8 Grant, 409. 4 Blain v. Terryberry, 12 Grant, 221. COSTS OUT OF THE FUND. 1513 an executrix applied against the Master' report, and the appeal was allowed without costs, it . was held that she could not on further directions claim the costs of the appeal out of the estate.' A trustee, fairly instituting a suit for the direction of the Court with regard to the trust, will not only be entitled to his own costs but any pej-son made a party to the suit, for his protection, will also be ordered his costs ft om the fund. Thus, where a bill was filed by trustees, for the direction of the Court, as to the application of a trust fund, in the course of which a dispute arose between the two defendants, whether one of them was illegitimate, and it was found that he was legitimate, the other was allowed his costs out of the triist fund.^. The Court considers a trustee entitled to its protection and direction in the execution of his trusts, and will not only n^ver call upon him to pay the costs, unless he refuses to act merely from caprice or obstinacy,^ but will give him his costs out of the trust ]))-operty, although it appears, in the result, that he might safely acted without suit.* In Low v. Carter,^ Lord Langdale, M. R., said: "I cannot conceive that anything could be more hard, than that executors, who are called on to administer estates, where there are doubtful questions arising on the will, and who can be exonerated only by having their accounts passed in a Court of Equity, should be deterred from coming to this Court, by being visited with the costs of the proceedings." Where an executor and trustee named in a will had acted as such to the advantage of the estate, without having proved the will, he was allowed his costs, as between party and party, of an administration suit to which he was a party defendant, excepting some costs which he had needlessly incurred,^ A testator devised his real estate to his widow, and in the event of her re-marriage to chil- dren. The widow afterwards filed a bill against the executors, charg- ing mal-administration, which was disproved, and on the contrary it was shewn that they had benefited the estate by their management of it : and the Master having found that the personal assets were 1 story V. Dunlop, 13 Grant, 376. 2 Hicks v. Wrench, 6 Madd. 93. 3 Re ifoodburn's Trusts, 1 De G. & J. 333 : 3 Jur. N. S. 799 ; Re Cater, 25 Beav. 361 ; Re Knight's Trusts, 27 Beav. 46 ; Re Foligno, 32 Beav. 131. 4 HetHey v Philips, 2 Atk. 48 ; see aldo Taylor v. Olanville, 3 Modd. 176. 5 Low V. Carter 1 Beav. 426, 430. 6 Sunley v. MeCrae, 2 Cham. Rep. 231. 1514 PROCEEDINGS IN THE MASTER'S OFFICE. insufficient to discharge the remaining liabilities, the Co.urt directed the executors to receive the costs out of the estate ; that a competent portion of the real estate should be sold, and that the testator's children should be made parties to the suit in the Master's office for the purpose of retaking the accounts, if desired by the guardian — they not being bound by the accounts already taken — and under the circumstances refused the widow her costs.^ Where one of the legatees was absent from jurisdiction, and the executors had been unable to discover him ; this was held, a sufficient ground for the executors coming to the Court to obtain an administration of the estate.^ Where, however, the act required to be done by a trustee, leads to na responsibility, or his motive is obviously vexatious^ he will not be allowed his costs. Thus, where trustees under a will refused to pay a legacy to the assignees of a bankrupt, merely because the bankrupt himself had set up a claim to it. Sir John Leach, M.R., refused them theii- costs of the suit, because the case was too clear to admit of a doubt ; but as they might have acted from mere ignorance, and not from any improper motive, he would not make them pay the costs of the plaintiff, although he deprived them of their own costs.* So, where a person having in his hands a sum of money belonging to an infant, instituted a suit, to have that sum secured for the benefit of the infant, though there was a trustee of a settlement, to whom it ought to have been paid, and who was willing to receive it. Lord Gifiord, M.R., refused to allow him his costs out of the fund.^ An executor or administrator has no right to file a bill merely to obtain an indemnity, by passing his accounts under the decree of the Court. There must be some real question to submit to the Court, or some dispute requiring interposition, when he will be en- titled to his costs ; otherwise he wiU not receive them. And if it shall appear that his conduct has been mala fides or unreasonable; he will be ordered to pay the costs of the defendant.^ But an exe- 1 Norris v., Bell, 9 Grant, 23. Re Wade 18 Grant, 485. 8 Curteis v.' Candler, 6 Madd. 123. 4 Knight v. Martin, 1 R. & M. 70 ; and see Angler v. Stannard, 3 M. & K. 566, 572 ; Campbell v. Home, 1 Y. & C. C. C. 664, 670 : 7 Jur. 366 ; Ee Primrose, 23 Beav. 690 : 3 Jur. N. S. 899. 5 JSllis V. Ullis, 1 Russ. 3rt8. In general, where a trustee, through his neglect or obstinacy, occa- sions the suit, he will be ordered to pay the costs of it. 6 White v. Cummins, 3 Grant, 602. COSTS OUT OF the; fund. 1515 cutor or trustee will sometimes be entitled to his costs in a suit for administration notwithbtaiiding he may have committed a breach of trust, if no loss is sustained by the estate by reason of such breach.^ A trustee having refused to allow his name to be used as plaintiff, was refused his costs of defence, although no blame attached to him in other respects.^ In case a creditor brings an ad- ministrative suit after being informed that there are no assets applicable to the payment of his claim, if the information appear by the result to have been substantially correct, he may have to pay the costs of the suit.^ Although trustees, and other persons standing in that character, are as we have seen, generally held intitled to their costs out of the estate, yet they will not be permitted unnecessarily to burden the fund, by costs which they might have avoided ; they must, there- fore, as a general rule, institute or defend a suit jointly ; and if they sever, they will be allowed only one set of costs : * except in some cases where there is a special reason justifying their sever- ance f but where the severance is occasioned by the default or mis- conduct of one of two trustees, and only one set of costs is allowed, it is usually ordered to be paid to the innocent trustee.^ Where the whole of the costs are not given to one trustee, the apportionment is in general left to the Taxing Master/ Upon the same principle, a trustee will, where he might have paid the trust fund into Court, under the Trustee Relief Acts, be allowed only the costs to which he would have been entitled, if that course had been adopted.* He may, however, institute a suit, where the cir- cumstances of the case are such that he is entitled to complete dis- charge from the trusteeship.^ 1 Weardy. Gable, 8 Grant, 458. 2 Ellis V. Ellis, 7 Grant, 102. 3 City Bank v. Scatcherd, 18 Grant, 185. 4 Farr v. Sheriffs, 4 Hare, 528: 10 Jur, 630 ; Hodgson v. Cash, 1 Jur. N. S. 864 ; and see Woods v. Woods, 5 Hare, 229, 231 ; Attomey-Generaly. Cuming 2 Y. & C. C. C. 139, 166. 5 Reade v. Sparkes, 1 Moll. 8 ; Nicholson v. Falkner, ib. 566 ; Gaunt v. Taylor, 2 Beav. 346 : 2 Hare, 413 n. ; A Idbridge v, Wesfbrook, 4 Beai 212 ; Wiles v. Cooper, 9 Beav. 298 ; Kampf v. Jones, 0. P. Coop. 13 ; Cummins v. Bromfield, 3 Jur. N. S. 657, V. C. W.; Shaw v. Johnson, 9 W. R. 629, V. C. K. ; and see, on this subject, Lewin on Trusts, 660 ; Hill on Trustees, 673 ; Morgan & Davey, 88. 6 Webb V. Webb, 16 Sim. 65 ; Hughes v. Key, 20 Beav. 395 ; Prince v. Hlne (No. 2), 27 Beav. 345 ; and see Birks v. Micklethwait, 83 Beav. 409 : 10 Jur. N. S. 308, wliere two sets of costs had been allowed. 7 Course v. Humphrey, 26 Beav. 402 : 5 Jur. N. S. 616 ; Attorney-General v. Wyville, 28 Beav. 464. 8 Wells V. Malbon. 31 Beav. 48 : 8 Jur. N. S. 249. 9 Barker v. Peile, 2 Dr. & Sm. 340 : 11 Jur. K. S. 436. 1516 PROCEEDINGS IN THE MASTER'S OFFICK. A trustee who severed in his defence because his co-trustee had refused to act in conjunction with him in the management of the estate, was, under the circumstances, refused his costs.^ The trustees ought not to place themselves in such a position that their interests conflict with their duty ■? therefore, where a solicitor is a trustee or executor, he will only be allowed his costs out of pocket ■? and wiU not, in the absence of any express pro- vision in the instrument creating the trust, be entitled to charge for professional business transacted on behalf of the trust ;* and even such a clause will not entitle him to charge for business which falls to the duty of an executor or trustee to transact." The partner of a solicitor, who is a trustee, is also only entitled to his costs out of pocket, for business transacted by him on behalf of the trust :^ unless he has acted for his own benefit alone.' It is no part of the business or employment of a trustee to assist other parties in suit relative to the trust property : if, therefore, the trustee acts as solicitor for such other parties, such business or employment is not any business or employment of the trustee, and the rule that a solicitor who is a trustee is to be allowed only his costs out of pocket, does not apply ; and where he acts both as solicitor for himself and for other parties, his costs will be disallowed to the extent only to which they have been increased by his being a party.^ The exception, however, only applies to business done by the solicitor trustee in prosecuting or defending proceedings in Court." 1 Gibson v. Annis, 11 Grant, 481. 2 Per Lord Cranworth, in Broughton v. Broitghton, 5 De G. M. & G. 160, 164 : 1 Jur. N. S. 965; S. C. 2 Sm. &. G. 422 ; see also Crosskillv. Bower, 32 Beav, 86: 9 Jur. N. S. 267. 3 RobiJiBon v. Pett, 3 P. Wms. 249 ; 3foore v. Frond. 3 M. & C. 45, ol ; Mew v. Jones, 1 McN. & G. 668, n. (d) ; York v Brown, 1 Coll. 260 : 8 Jur. 567 ; Broughton v Brovghton, ubi sup. ; Sclater v. Cottam, 3 Jur N. S. 630, V.C.K. ; Pollard v. Doyle, 1 Dr. &l Sm. 319 ; Gomley v. Wood, 3 Jo. 6: Lat. 67S, 688 ; Lincoln v. Windsor, 9 Hare, 158 ; Pince v Beattie, 9 Jar. N. S. 1119 : 11 W. R. 979, V. C. K. 4 Broughton v. Broughton, iihi bup. ; contra^ Moore v, Frowd, ubi sup. ; Re Sherwood, 3 Bear. 338, 341 ; Lewin on Trusts, 216 ; Hill on Trustees, 599 ; Seton, 770 ; Morgan i: Bavey, 279, et seg ; see alao Price v. McBeth, 10 Jur. N. S. 579: 12 W. K. 818, V. C. S., as to costs of a solicitor mortgagee. 6 Harbin v. Darby, 28 Beav 325 : 6 Jur. N. S. 906. 6 Collins V. Carey, 2 Beav. 128 : Christophers v. White, 10 Beav. 523 : Lyon v. Baker, 5 De G. & S 622. As to costs of the town agent of the tru'-tee, see Burge v. Brutto^n^ 2 Hare, 373, 379 : 7 Jur. 988 7 Clack V. Carltm, 7 Jur. N. S. 441. : 9 W. R. 568, V. C. "VV. 8 Cradock v. Piper, 1 McN. & G. 664, 679: Fraser v. Pahner^ 4 Y. & C. Ex. 515 ; Broughton y. Broughton, Pince v. Beattie, Lincolnv Windsor, and Harbin v. Darby, ubi sup. 9 Lincoln v. Windsor, and Broughton v. Broughton, ubi sup. COSTS OUT OF THE FUND. 1517 A similar rule applies to the case of an auctioneer, who, if a trustee, will not be allowed Lis commission for seUing part of the trust estate.^ The rule, however, is not inflexible ; and under very special cir- cumstances, the trustee may be allowed compensation for his time and trouble, in addition to his costs out of pocket.^ It has been said that trustees and personal representatives brought into Court, will not be deprived of their costs, although they make a claim for their own benefit and fail, provided they do so "by way of submission";^ but where a trustee has a private interest of his own, separate and independent from the trust, and obliges the cestui qui trust to come into this Court, merely to have the point relating to his own private interest determined at the expense of the trust ; this is such vexatious behaviour, on his part, that he will be decreed to pay the whole costs of the suit.* Upon this ground, where, on a bill filed for a residue, the defendant, the executor, by his answer stated declarations of the testatrix that her legatees should have no more than their express legacies, and hoped to prove that the surplus was intended for himself as executor, he was made to pay the costs for thus insisting upon the surplus.^ As the Court will not allow trustees to take advantage of the rule of the Court in their favor, to obtain a determination upon their own rights, so it will not tolerate their attempting to defeat the claims of their cestui qui trust, by setting up an improper defence. Therefore, where the trustees of an estate, bequeathed to them in trust for *a charity, insisted that the plaintiffs had, under a clause in the will of the founder, (by which it was declared that, if the heirs at law should dispute the will, they should forfeit certain annuities thereby bequeathed to them,) forfeited their annuities by filing the bill, which prayed that the trust for the charity might be declared a resulting trust, or, in the alternative that they might have the arrears of their annuity, Lord Talbot 1 Kirkman v. Booth, 11 Beav. 273 ; Matthison v. Clarke, 3 Drew. 3. An auctioneer trustee may, however, be allowed commission under the terms of the deed creating the trust : Douglass v. ArchbtiU, 2 De G. .v J. 148 : 4, Jur. N. S. 815. 2 Cambridge v. Blair, 8 Beav. 588, 597: 9 Jur. 765 ; and see Marshall v. Bolloway. 2 Swanst; 432, 453 ; Seton, 770 ; Lewin on Trusts, 216. Our Statute alters this, aa already explained ante. 3 Rashley v. Masters, 1 Ves. J. 205. 4 Benley v. Philips, 2 Atk. 48. 5 Bayley v. Powell, Free, in Oh. 92 ; S. C. noire. Bayley v. Powell, 2 Vern. 361 ; Bruin y. Knott, 12 Jur. 616, v. C. E. 1518 PEOCEEDINGS IN THE MASTER'S OFFICE. ordered them to pay the costs out of their own pockets, and not out of the trust estate.^ And so, if a trustee states a trust to be different from what it actually is, the Court will deprive him of his costs, although he does it not to benefit himself, but another. Thus where the defendant, who was the trustee of a marriage settlement upon the question between the husband and wife whether the wife, who was separated from her husband and lived in a state of adult tery, was entitled, under the settlement, to the dividends of a sum of stock to her separate use, insisted, contrary to the fact, that-it was the intention of the parties that a provision for the separate of the wife should be introduced into the settlement. Lord Rosslyn thought there was ground to deprive the trustee of her costs.^ Trustees will, also, be deprived of their costs if they claim more than they are entitled to : therefore, where the trustees of a charity insisted by their answer, that there was £800 due to them from the charity, but it was found that £180 only was due to them, Lord Gowper refused them their costs, though the balance was in their favour.^ It may be noticed, however, that a disallowance of credit, honestly claimed by an executor, though he is mistaken, is not enough to disentitle him to costs ; therefore, where an executor's account was surcharged by the amount of a credit taken for the proportion of an annuity, payable by the testator, during his hfe, to the executor, but which was not apportionable, the mistake was not considered by Sir Anthony Hart, L. C, as a ground to deprive the executor of his costs.* If persons, standing in the situation of trustees, by their neglect or misconduct occasion the suit, they will be deprived of their costs out of the estate f although the trust instrument contain the usual clause authorizing the trustees to reimburse themselves any expenses they may incur ; ^ but mere neglect of duty, as, for instance, the omission to invest balances, if unaccompanied by 1 Lloyd V. Spiliet, 3 P. Wms. 314, 346 ; and see S. Lloyd v. Spillet, 2 Atk, 148. 2 Ball V. Montgomery, 1 Ves. J. 191, 199. 8 Attorney-Oeneral v Brewers' Company 1 P. Wms. 376 : Dawson v. Parrot, 3 Bro. C. C. 236. 4 Bennett v. Going, 1 Moll. 629. 6 O'Callaghan v. Cooper, 6 Ves. 117, 128 ; England v. TUivnen, 6 Beav. 279 ; Howard v. Rhodes, 1 Keen 581 ; Fyfe v. Arinthnot 3 Jur N. S 661, h. C. ; Aylmer v, Winterbottom, i Jur. N, S. 19, v. C. W. ; and see Legg v. Mackrell, 2 De G. F. & J. 661 ; 1 Gifl. 165 ; 6 Jur. N. S. 1164; see also Lewin on Trusts, 666 ; BUI on Trusts, 576, et seq. 6 Hide v. Baywood, 2 Atk. 125 ; BUI on Trusts, 593. COSTS OUT OF THE FUND. 1519 fraud, is not sucli misconduct as to disentitle them to their general costs of the suit ; although it may subject them to the costs of so much of the suit as was occasioned by neglect.^ Although, in general, a trustee committing a breach of trust, which may ren- der an application to the Court necessary, will be deprived of his costs, yet, where the breach of trust consisted of the improper ap- plication of a small part of the trust fund, which was promptly offered to be restored, and the suit was for other purposes of the trust, there being no imputation against the trustee, he was held not to be disentitled to his costs.^ Where executors had improperly dealt with a portion of the funds of an estate by allowing one of their number to retain it in his hands at a low rate of interest, the Court refused them their costs prior to a decree ; and costs were given to the plaintiff notwithstand- ing fraud was charged against the executors, which was not estab- lished under the circumstances of the case.^ Where an executor had retained money in his hands unemployed, for which on passing his accounts he was charged with interest and rests. It was held, not- withstanding, that having reference to the condition of the estate, and the facts of the case, he should be allowed his commission and costs of the suit.* A trustee of lands for the payment of debts, paid the debts without exercising the power of sale for that pur- pose, and took a release from the cestuis que trust to himself, which release was held void, and an account directed. Under the circum- stances, neither fraud nor neglect to account having been established against the trustee, vrho had accounted as such in the Master's office, and the property, or the produce thereof being forthcoming for the benefit of the estate, the Court directed the trustee to receive his subsequent costs, as in ordinary cases, as between solicitor and client.^ In the cases above referred to, the Court has contented itself with marking its disapprobation of the conduct of the trustee or personal 1 Heighington v. Grant, 1 Phil. 600, 604 ; Tebhi v. Carpenter, 1 Madd. 290, 307 ; Bennett v. A lldm. lY. &C.EX i4:7,249;Fozier v Andrews, 2 Jo. & Lat. 199 ; Cottan v. Clark 16 Beav. 134: 16 Jur. 879 ; Holgate v Howarth, 17 Beav. 269 ; Knott v. Cottee, 16 Beav. 77 : 16 Jur. 762 ; Bate v. Hooper, 6 De 0. M. & G. 338 ; and see, contra. Parrot v Trehy, Prec. in Ch. 254 : Seers v. Hind, 1 Ves. J. 294 ; Jioeke v. Earl, 11 Ves. 58, 61; Mosley v. Ward, ib. SSI; Ashburnham v, Thompson, 13 Ves 402. 404. 2 Fitzgerald v. Pringle, 2 Moll. 534 ; see also Hewett v. Foster, 7 Beav. 34S ; Royds v. Eoyds, 14 Beav. 54. 3 Ashbavgh v. A shbaugh, 10 Grant, 433. 4 Gould v. Burritt, 11 Grant, 523. 6 Hope V. Beard, 10 Grant, 212. 1620 PROCEEDINGS IN THE MASTER'S OFFICE. representative, by witholding from him his costs, to which he would otherwise have been entitled out of the fund. It frequently happens, however, that the Court will go further, and will not only deprive the trustee or representative of his costs, but will compel him to pay the costs of the suit out of his own pocket ; and it may be stated, as a general rule, that if any particular instance of mis- conduct, or a general dereliction of duty in a trustee, or even his mere caprice and obstinacy, is the immediate cause of a suit being instituted, the trustee, on the charge being substantiated against him, must pay the costs of the proceedings his own improper behav- iour has occasioned.^ Upon this principle, where an executor, directed to lay out the testator's personality in the funds, unn(!ces- sarily kept large balances in his hands, and resisted the payment of debts by false pretences of outstanding demands, he was charged with the costs. ^ And where an executor retained a balance in his hands longer than was necessary to answer contingencies, he was ordered to pay interest and costs ; though it appeai'ed that he had always kept a sum ready at his bankers to defray the amount.^ A trustee who has occasioned the suit by refusing or neglecting to furnish proper accounts when requested, will be ordered to pay the costs of the suit ;* and where an executor obtained from a legatee a release from a legacy, for which no consideration was given, he was ordered to pay the costs of the suit instituted to set aside such release.^ It is the duty of a trustee to use reasonable diligence to have the accounts of the trusts ready, and to render them within a reasonable time after they have been asked for, on behalf of the cestuAs que trustent ; and where a trustee wholly neglected this duty, though he offered his books for inspection by the parties interested, he was charged with the costs of the suit up to the hearing.^ 1 Lewin on Trusts, 666 : Jiill on Trustees, 579 et seq. ; Attorney-General v. Robert^ Rep t Finch, 259 : Haberdasher's Company v A ttorney-General, 2 Bro. P. C. ed, Toml. 370 ; Pinfold v. Bouck, i Hare, 271 ; Tharby v. Yeats, 1 Y. & C. C. C 438 : 6 Jur. 939 ; Lyse v. Eirujdtni, 1 Coll. 184, 189 : 8 Jur. 418 ; Hampshire v Bradley, 2 Coll. 34, 41 ; Attor}tey-Geiieral v Gibbs, 1 De G. & S. 166, lel ; Eirmin v. Pulham, 2 De G & S, 99, 101 ; Marshall v. Sladden, 4 De G. & S. 463 ; Warter v Anderson, 11 Hare, 301 ; Attorney-Generol v. Murdoch, 2 K. & J. 571 : Price v. Loa- den, 21 Beav. 508 ; Springett v. Dashwood, 2 Giff. 521 : 7 Jur. N. S. 93 ; Dobson v. Pattinson, 3 Jur. N. S. 1202, V.G.S. ;' Boyntnn v. Richardson, 31 Beav. 340; Wroe v. Seed, 4 Giff, 426 : Smith V. Bolden, 83 Beav. 362. 2 Crackelt v. Bethune, 1 J. & W, 566 ; see also Mosley v. Ward, 11 Ves. 581 ; Piety v. Stace, 4 Ves. 620, 623. 3 Franklin v. Frith, 3 Bro. 0. C. 433 ; Tickner v. Smith, 3 Sm. & G. 42. 4 Boynton \. Riehardson. 31 Beav. 340; Kemp v. Bum, i Giff. 348: 9 Jur. N. S. 3K; Be King, Gilbert v. Lee, 13 W. R. 1012, M. R. 6 Boraley v. Chalaner, 2 Ves. S. 83. 86. 6 Randall v. Burrowes, 11 Grant, 364. COSTS OUT OF THE FUND. 1521 It has also been-held that if executors make an unfair appraise- ment, and otherwise misbehave themselves in their trust, they will be liable to costs.^ And -where trustees kept possession of an estate from their cestui qui trust, whom they considered a lunatic, (but who, although eccentric when he was drunk, was not insane,) upon a bill filed by the supposed lunatic they were ordered to pay the costs of the suit ; although it did not appear that they had acted from any corrupt motive, but were merely, as they considered, pro- tecting the property for the benefit of those in remainder.^ So also, where the suit has been occasioned by a breach of trust, the trustees will be compelled to pay the costs ; thus, where trustees, with the privity of the wife, sold out stock which had been settled to her separate use, and paid the proceeds to the husband, taking his bond of indemnit}', and the husband afterwards died insolvent, whereupon the trustees replaced the stock ; upon a biU filed by the widow and children to have the fund ^secured, the trustees were considered as having caused the suit by their breach of trust, and were ordered to pay the widow the amount of the dividends from the husband's death, with the costs of the suit.' In like manner, where a trustee, mistaking his power, sold stock without authority, and, with the produce, purchased land, without having the power to do so, he was ordered to I'eplace the stock and to pay the costs.* And where, by mistake, the fund had been dis- tributed among the wrong persons, the trustee was ordered to pay the costs of a suit to compel him to replace it :^ although the distri- bution had been made under the advice of counsel;® and where the trustee of a legacy, which had been invested in stock, authorized another person, who was supposed to be entitled to the management of it, to sell it out and receive the proceeds, it was held that the trustee was answerable for the stock, and he was ordered to pay the costs : although the legatee, not knowing that the legacy had ever been invested or sold out, had dealt with such other person as the person accountable for the money.^ 1 S/ieppard v. Smith, 2 Bro. P. C. ed. Toml. 372. 2 Brown v. How, Barnard, 354 ; and see Caffrey v. Darby, 6 Ves. 488, 497 ; CurtU v. Robinson, 8 Beav. 242. 3 WhMler v. Newman, 4 Ves. 129, 146. 4 Barl Powlet v. Herbert, 1 Ves. J. 296. 6 Eaves v. Hickson, 30 Beav. 136 : 7 Jur. N. S. 1297. 6 Boulton V. Beard, 3 De G. M. & G. 608, 611 ; and see Devey v. Thornton, 9 Hare, 232 : Foster v. Dawber, 6 W. E. 47 V. C. K. ; Bullock v. Whealley, 1 Coll. 130, 135. 7 Adams v Clifton, 1 Russ. 297, 300. 1522 PROCEEDINGS IN THE MASTER'S OFFICE. It seems that, in order to constitute such misconduct as will induce the Court to visit trustees with costs, it is not necessary that there should have been misfeasance on the part of the trustee : simple nonfeasance, where it has been productive of mischief to the trust estate, will be sufficient. Thus, where the trustees of a charity although they were not guilty of any corruption, had been extremely negligent in their trust. Lord King held, that they ought to be pun- ished with some of the costs. -"^ So, also, where an executor omitted to bring an action to recover a bond debt, he was ordered to pay the costs of taking the accounts.^ And where two executors had kept money of their testator in their hands longer than the exigen- cies of the affairs required, and were consequently ordered to pay the amount with interest, and one became insolvent, the Court held each of them to be liable for the whole costs.^ In many cases, also, if there is misconduct on the part of a trustee or personal representative in the course of the cause, the Court will compel him to pay the costs of the suit out of his own pocket. ' Thus, a trustee will be fixed with costs if he persists in proceeding with the suit after it has become unnecessary;* or if he wilfully mistakes the accounts ;^ or if being indebted to the trust estate, he resists the account and claims a balance f or if, by chicanery, he keeps the cestui qui trust from a true knowledge of the accounts, or even if he has kept the accounts in a very confused manner.' An executor, also, will be liable to costs, if he denies assets and the con- trary is provided against hiin.^ Where, however, he has the execu- tor of an executor, and the estates of the two testators had been so blended as to create confusion, he was not ordered to pay costs : though it appeared he had assets sufficient to pay the plaintiffs' debt.® And wherever the answer of an executor or other trustee is falsified by proof, and he appears to have acted from fraudulent motives, he will be made to pay the costs.^" So, if a corporation^ being trustees for a charity, suppress or conceal evidence relating to 1 East V. Ryal, 2 P. Wms. 284 ; see also Haberdasher's Company v. Attorney-General, 2Bro. P. C. ed. Toml. 370 ; Attorney-General v. Robert, Rep. t. Finch. 250. ' 2 Lowson V. Copeland, 2 Bro. C. 0. 156. 3 Littlehales v. Gascoyne, 3 Bru. C. C. 73 ; Wroe v. Seed, i Gift. 426. 4 Campbell v. Campbell, 2 M. & C. 26, SO, 5 Sheppard v. Smith, 2 Bro. P. C. ed. Toml. 372 ; and see Flanagan v. Nolan, 1 Moll. 84. 6 Eglin v. Sanderson, 3 Gifli. 434 ; 8 -Tur. N. S. 329. 7 Avery v. Osborne, Barnard, 349 ; Iforbury v. Calbeck, 2 Moll 461. 8 Sandys v. Watson, 2 Atlt. 80 ; Lodge v. Pritchard, 4 Giff. 294 : 9 Jur. N. S. 982. 9 Sandys v. Watson, ubi sup. 10 Vaughan v. Thurston, CoUes. P. C. 176 , see also Mallabar v. Malla,bar, Ca. t. Talb. 78. COSTS OUT OF THE FUND. 1523 the charity, they will be held liable to the costs of the suit.^ And if a^trustee, by his answer, sets up objections to his performance of his trust, which he does not substantiate, he will be made to pay the coats.^ Although a personal representative, or other trustee, who miscon- ducts himself in his trust will be liable to pay the costs of the suit the rule will be qualified where, though his conduct has been irregu- lar, no loss has been incurred to the estate, and his motive has not been corrupt.^ It has also been held, that a slight instance of misconduct, in one particular point, will not fix a trustee with the costs : thus, where, by an order, made by consent several years before, a trustee had been ordered to pay £200 into Court, but had not done it, and, as an excuse for his disobedience, alleged that the plaintiffs did not serve him with the order, or take any step to have it executed, and that he understood they were dissatisfied with it, and intended to try to have it varied, the Court charged him with interest on the £200, but was of opinion that it was not a case to deprive the defendant of his costs.* In Hall v. Hcdlet,^ Lord Thurlow said, that the rule, that execu- tors are to be exempt from paying costs, holds even in cases where great delays and difficulties have been occasioned by the executor : for the Court will overlook these circumstances if it can. And although an executor or other trus'tee, who grossly misconducts him- self in the execution of his trust, will be made to pay the costs occa- sioned by his misconduct, it does not, therefore, follow that he must in aU cases pay the costs of the whole suit.. If the suit is proper for other purposes, and the executor or trustee is a necessary party, he will not be compelled to pay all the costs : though, in the course of the suit, it should appear that he has misconducted himself. Thus, where a suit was necessary to determine what construction was to 1 Borough o/ Hertford v. Poor of Hertford, 2 Bro. P. C. ed. Toml. 377 ; A ttomeu-Oeneral v. East Retford, 2 M. & K. 36, 40 2 Willis V. Uismx, i M. & C. 197, 202 ;but see fjow v. Carter, 1 Beav. 426, 430. 3 Baker v. Carter, 1 Y. & C. Ex. i60 ; Boyds v. Royds, 14 Beav. 54 ; see also White v. Jackson, 16 Beav. 191 ; but see Syringett v. Bashwood, 2 Giff. 521 : 7 Jur. N. S. 93 ; Kemp v. Burn, 4 Giff. 348 : 9 Jur. N. S. 376. 4 Sammes v. Riokirum. 2 Ves. J. 36 ; see also Fitzgerald v. Pringle, 2 Moll. 534. 5 1 Cox, 134, 141 ; see also Bennett v. Atkins, 1 Y. & C. Ex. 247. 72 1524 PROCEEDINGS IN THE MASTER'S OFFICE. be given to a will, whether the residue was to be divided between nine or between six claimants, and, in the course of the suit, it ap- peared that the executors had improperly permitted rents to be in arrear, and retained balances in their hands, as to which inquiries were directed, and they were charged with interest. Sir Thomas Plumer, V.C, gave the executors the costs of the suit out of the fund, except only the costs of the inquiries as to the arrears of rent and balances : which, being solely occasioned by their breach of trust, he directed to fall upon them.'^ So, where trustees for sale purchased the trust estate at an undervalue, though without fraud and by auction, relief as to a resale was given against them with costs, but as to other parts of the case, namely, as to accounts which must have been taken, they were allowed their costs : as they would have been entitled td them in the ordinary way.^ In such cases, the Court frequently, instead of giving any direc- tion with regard to costs, will content itself with making no order upon the subject, thereby leaving it to each party to pay his own costs.^ Thus, where a trustee, instead of accumulating a fund, as directed by the will, had improperly kept the balance in his hands, yet, as the costs of the suit had in a great measure been occasioned by inquiring what rule the Court ought to adopt with respect to the computation of interest, it was thought hard, under the cir- cumstances, to fix the executor with costs, even relatively to the breach of trust, and, therefore, the Court gave no costs.* If a suit has been occasioned by the mistake or some slight neglect of the trustee, the Court will sometimes content itself with not giving him costs ;° and, in some cases, where the conduct of trustees has not been wilful or perverse, the Court has permitted them to have them, although there has been loss to the estate. Thus, where trustees, who were directed to sell an estate as soon as conveniently might be after their testator's death, refused, by the 1 Tebhs V. Carpenter, 1 JIadd. 290, 308 ; and see lleighington v. Grant, 1 Phil. 600, 604 ; Attorney- General V. Gibbx, 1 De G. Si >-. 1.56, 161 ; Pride v. Foois, 1! Bea.v. 430, 437 ; Hewett v. Foster, 7 Beav. 348 ; see however, Knott v. Cottee, 16 Beav. 77 : 16 J\ir. 762. 2 Sanderson V. Walker, 13 Ves. 601, 604; see also Pocook v. Reddington, 5 Ves. 704, 800. 5 Newton v. Bennett, 1 Bro. C C. 869, 362 : Narton v. Steinkopf, 18 Jur. 720, V. C. W. ; Harper v. Munday 7 De G. M. & G. 369, 376 : 2 Jur. N. S. 1197 ; Aylmer v Winterbottom, 4 Jur. N. S. 19, V. C. W. 4 Raphael v. Boehm, 13 Ves. 590, 692. 6 O'Callaghan v. Cooper, 6 Ves, 117, 128 ; Heighmgton v. Grant, and Harper v. Mvnday, ubi sup. ; Beer v. Tapp, 10 W. R 277, h. J. J. COSTS OUT OF THE FUND. 1525 desire of one of the parties interested, £6,600 for the estate and afterwards sold it for £3,600, the Court, although it charged them with the loss, gave them their costs, as their conduct had not been wilful nor perverse.^ In general, where several defendants are involved in a breach of trust, the Court, in decreeing relief in respect of it, orders them to pay the costs of the suit jointly, without regard to their relative degrees of culpability, in order to give the plaintiff security for the payment ;^ but where trustees had made payments to the wrong persons, in consequence of forged certificates, the costs were pri- marily thrown upon the persons who had profited by the forgery, and ultimately upon the trustees.^ When it is said that personal representatives, and others bearing the character of trustees, are entitled to their costs out of the fund or estate which is the subject of the suit, the rule must be understood as applying strictly between themselves and their cestui qui trusts. In suits between them and those who are strangers to the trust, the ordinary rules as to the costs prevail, though, if a trustee or personal representative institutes or defends a suit in respect of his trust estate, he may reimburse himself, out of that estate, any sums he may have expended properly in such suit. Thus, where a trustee for sale filed a bill for a specific per- formance, which was dismissed, it was dismissed with costs ; the defendant being considered as having nothing to do with the cha- racter in which the plaintifl^ sued.* Costs also are given against assignees personally, and not qua assignees, they are to pay them, and then may be allowed to draw them out of the estate ; but the opposite party is not to be exposed to the hazard, whether the estate is capable of bearing the costs or not ; if it is not, it is the misfortune of the assignees.^ So also, an executor plaintiff cannot be distinguished, with respect to costs, from the party whom he represents;^ and if he revives a suit in which his testator was a party, he will incur his testator's liability 1 Taylor v. Tabrum, 6 Sim. 281 ; and see Flanagan v. Solan, I Moll. 84 ; Travers v. Townsend, ib 496. 2 Lawrence v. Bowie, 2 Phil. 140 ; Byrne v. Soreott, 13 Beav. 336. 346. 3 Eaves v. Hickson, SO Beav. 136: 7 Jur. N. S. 1297 ; and for the order, see Seton, 634, No. 2. 4 Edwards v. Harvey, G. Coop. 40. 6 Poole v. Franks, 1 Moll. 78. 6 Westleyy. lHUiamson, 2 MoH. iSS. 1526 PROCEEDINGS IN THE MASTER'S OFFICE. to costs. Thus, where ai) executor, after a bill by his testator had been dismissed with costs, revived the suit, alleging 'that he intended to appeal, he was ordered to pay the costs of the whole suit.^ Where a bill was filed for the purpose of raising legacies charged on real estate, there being no personal estate, it was held that the executor, taking out probate in such a case, could get no costs ;^ and the rule is the same in the case of the executor of an insolvent mortgagor.^ The case is, however, said to be different with respect to an administrator ad litera, who will be entitled to his costs out of the fund f or, if that is deficient, from the plaintiff. If an executor who has neither proved nor acted, although he has not renounced, is made a party to a suit, for the purpose of raising charges by the sale of real estate, the personal estate being insufficient, the costs of such executor cannot be paid out of the fund, but must be borne by the plaintiff: as he was not a necessary party.^ In suits by a creditor against a personal representative for pay- ment of his own debt only, and not for general administration, if the creditor succeeds in establishing his demand, the Court directs his costs, as well as the amount of his debt, to be paid to him out of the estate f but the Court makes no order with regar d to the pay- ment of the costs of the personal representative : upon the principle that he may reimburse himself those costs out of the personal estate.^ Where, however, the suit is instituted, either by creditors or by legatees, for a general administration of assetp, ^o that the whole estate of the deceased must necessarily come imder the direc- 1 Horlock V. Priestly, 3 Sim. 621 ; Lyon v, McEenna 2 Moll. 460. 2 Nash V. Dillon, 1 Moll. 236 ; but see Makings v. Makings, 1 De G. F. & J. 355, 369, L. C. 3 Nicholson v. Falhiner, 1 Moll. 555. 4 Hid. 5 Hid. 6 Davy v. Seys. Mos. 204. 7 Humphrys v Moore, 2 Atk. 108. Courts of Law in giving; judgment in favour of a creditor, direct the costs to be paid by the executor, de bonis testaiori^ ; and if there be none, de bonis propriib ; Jefferies v. Harrison, 1 Atk. 46?. In Equity, however the rule is different ; for if the assets are not sufficient to pay both debt and costs, the executor will nut be decreed to pay costs : Uvedale v. Uvedale, 3 Atk. 119; Twistelton v. Thelwet, Harares 165 ; unless he has misconducted himself, by having satisfied simple contracts, in preference to debts upon specialty : Jefferies v. Harrison, ubi sup. It may be suggested here, that, as an admission of assets by a representative is considered to be an admission of assets sufficient to pay costs, as well as the principal demand : Philanthropic Society v. Hobson, 2 M. & K. 357 : such adjnission should not be made, imless the party is satisfied that the assets will cever debt and costs ; and see Roch v. Callen, 6 Hare, 531, 534. COSTS OUT OF THE FUND. 1527 tion of the Court, the practice is different, and the costs of the personal representatives are always provided for ; and even where there is a deficiency of assets to pay the whole of the testator's debts, the costs constitute the first charge upon the fund arising from the personal estate.^ And this principle will be acted upon, where the testator is a defaulting trustee, and his estate is not sufficient to satisfy the breach of trust f but the assignees in bank- ruptcy, . pendente lite, of a defaulting administrator, will not be allowed their costs.^ The right of the personal representative to his costs, in such cases, may be defeated by his collusion, or by some of those cir- cumstances which have been already pointed out as disentitling a trustee from his right to the costs, out of the fund ; but where there are no circumstances of that nature, the costs of the per- sonal representative constitute the primary charge ; and he is entitled to immediate payment of them : even though he may be indebted to the testator in a sum payable on a future day.* Where a suit for the administration of an estate has been pro- perly instituted, the costs of the plaintiff and all necessary parties are considered as expenses in administering the estate ; and are the first charge upon it,* and if the estate is insufficient for the payment of all the costs, the executor's costs are the first charge ; then the plaintiff's ; and then those of the other parties.^ Where the plaintiff's claim fails, or the estate is exhausted by prior demands, so that he does not obtain payment of his demand, he is nevertheless entitled to his costs, if the Court has been enabled to administer the estate through his exertions. '' Where the costs 1 Bennett v. Going, 1 Moll. 529 ; Young v. Everest, 1 R. & M. 426 ; Gaunt v. Taylor, 2 Hare, 413, 420 ; Ottley v. Gilby, 8 Beav. 602, 605 ; Tanner v, Dancey, 9 Beav. 339, 342; see, however, Davy v. Seys, Mos. 204; Adair v. Shaw, 1 Sch. & Let. 280. 2 Haldenly v. Spofforth, 9 Beav. 195. 3 Carr v. Henderson, 11 Beav. 416 ; Morrison v. Morrison, 7 De G. M. k G. 214, 224, 226. 4 Stevens v. Pillen, 12 Jur. 282, V. C. W. ; but see Leeiham v. Chauner, 4 K. & J. 453, where a trustee's expenses, of au attempted premature sale, were held not a primary charge. 5 Loomes v. Stotherd, 1 S. «i S. 458, 461 ; Lorkins v. Paxton, 2 M . & K. 320 ; Baker v Wardle, ib.ilS; Bennett v. Going, 1 Moll. 539; Leckmere v. Brazier, 1 Ru.ss. 72, 80 ; Tanner v. Dancey, 9 Beav. 339, 342. Where an executor is only entitled to priority for a portion of his costs, see Blenkinsop v. Foster, 3 Y. * C. Ex. 207 ; Setan, 145. 6 Tipping v. Power, 1 Hare, 405, 411 ; Tanner v. Dancey, ubi sup. ; Sanderson v. Stoddart, 9 Jur. N. S. 1216, M. R. As to cases where plaintiff is entitled to costs as between solicitor and client; Bee Wetenhallv. Dennis, '33 Bea.v. 285: S. C noin. Wettenhall v. i)ayie5, 9 Jur N S. 1216, where a plaintiff legatee's priority over the other parties, was confined to his costs of getting in and realizing the estate. 7 Wedgwood v. Adams, 8 Beav. 103, 105 ; Seton, 146. 1528 PROCEEDINGS IN THE MASTER'S OFFICE. of all parties were ordered to be taxed and paid, as between solicitor and client, on the assumption that the fund was sufficient to pay them all, and it subsequently appeared that the fund was insufficient, the Court rectified the order, by giving the executors their costs in priority.^ Where a creditor institutes a suit, knowing that the estate has been wholly exhausted, or that there are no assets available for the payment of his claim, ^ or is informed thereof, before or after he institution of the suit, by the executor, or by creditors having prior claims, and such information turns out to be correct, he will be ordered to pay the whole of the costs, or the costs from the time he received such information f or be disallowed all his costs, or his costs incurred after the notice.* Where, however, in a case in which there were no residuary or pecuniary bequests, the next of kin of the testator instituted a suit for the administration of the estate, and the debts exhausted the residue, it was held that the plaintiff must bear his own costs ; but that the executor must have his out, of the S2)ecific legacies.^ Where, in a creditors' suit, the creditors, who had signed an undertaking to contribute their proportion of the costs, had been paid in full, they were, on the assets subsequently proving deficient to pay the costs, ordered, on the petition of the plaintiff, to contri- bute to the plaintiff's costs ; and, for that purpose, to repay pro- portional parts of what they had received.^ In suits by puisne incumbrancers or general creditors, for the administration of assets, it is not usual to make persons having prior specific charges parties to the suit, as they will be untouched by a decree for sale ; and may therefore, if they are made parties, insist upon having the bill, as against them, dismissed with costs. They may, however, adopt the suit, and consent to a sale, and to receive payment of their principal and interest out of the proceeds : in which case, although the decree is for the payment of all parties, 1 Gaunt V. Taylor, 2 Hare, 413, 420 ; see contra, Swale v. Milner, 6 Sim. 572. 2 £gan v. Baldwin, 1 Moll. 539. 3 Blejmtt v. Jessop, Jac. 240, 242 ; King v. Bryant, i Beav. 460, 482 ; FulUr v. Green, 24 Beav. 217. 4 Robinson v. Elliott, 1 Buss. 699. Lnomes v. Stotherd, 1 S. & S. 468, 461; Attorney-Geiwral v. Gibbs, 1 De G. & S. 156, 181 ; Sullivan v. Sevan, 20 Beav. 399. 6 Newhegin v. Bell, 23 Beav. 386. 6 Thompson v. Cooper, 2 Col. 87. COSTS OUT OF THE FUND. 1529 according to their priorities, as they have adopted the suit the costs of all parties must, in the first instance, come out of the fund.^ The right of the creditor, who files a bill for an administration of assets, to be paid his costs out of the fund in Court, does not affect the personal representative's right of retainer for satisfaction of a debt due to himself; and even where part of the personal estate had been paid into Court by an administrator, and another part of it remained in his hands, but there was a debt due to him from the intestate, greater than the amount of both funds, and no other assets to satisfy the general body of creditors, or even to pay the costs of the plaintiff. Sir John Leach, M. E., was of opinion, that the administrator's right of retainer was not affected by the circumstance of his having paid the money into Court, and that the plaintiff was not entitled to have his costs satisfied out of a fund to which the right of retainer extended.^ But although a personal representative may retain for the amount of his own debt, in j)reference to the claim of the plaintiff for the costs of the suit, the same thing cannot be done by a devisee of real estates, which are subject to the payment of debts. If, however, a devisee gives notice that his right of retainer will exceed the assets, after such notice the plaintiff may be considered as proceeding at the peril of costs.^ Where a bill was filed to raise legacies charged on real estate, and the estate was insufficient to provide for payment of the legacies and the costs of suit in full, the devisees of the estate were held entitled to their costs out of the fund, in priority to those of the legatees.* The above rules apply to cases where there is a deficiency in the fund realized by the suit to answer all the claims upon it ; but, where this is not the case, the general rule is, that, wherever 1 Brace v. Duchess of Marlborough, Mos. 50 ; White v. Bishop of Peterborough, Jac. 402 : Egan v Baldwin, 1 Moll. 639 ; KentbeL v. Scrafton, 13 Ves. 370 ; Anastrong v. SLorer, 14 Beav. 536, 638; see also Fori v. Earl of Chesterfield, 21 Beav. 426 ; Wright v. Kirby, 23 Beav. 463 ; Dighton v. Withers, 31 Beav. 423 ; Ward v. Maekinlay, 10 Jur. K. S. 1068 : 13 W. R. So, L.JJ. 2 Chissum V. Dewes, 6 Russ. 29 ; Langton v. Biggs, 6 Sim. 228 ; liaU v. Macdonald, 14 Sim. 1 ; and as to rigHt of retainer, see Fox v. Garrett, 28 Beav. IS ; Boyd v. Brookes, 13 W. R. 419, L. 0. 3 Loonies V. Stotherd, IS. & S. 458 ; Hall v. Macdonald, ubi sup. 4 Woollatt V. WooUatt, 4 Jur. N. S. 1292, V. C. S. 1580 PROCEEDINGS IN THE MASTEb's OFFICE. it is necessary to come to the Court, to establish a demand upon the property of persons deceaaed, the costs of such proceedings must be borne out of the assets.^ Therefore, if a bill be filed by a creditor for his debt, or by a legatee for his legacy, the costs of the suit must be paid out of the testator's estate : so, also, must the costs of a suit, to obtain the benefit of a donatio mortis causa. The expenses of a suit, also, by residuary legatees, or next of kin, for an account and distribution of an estate, must be defrayed out of the general estate. In such suits, the circumstance that the defendant has offered to the plaintiff a full inspection of his account, makes no difference : a plaintiff, in such a ease, is not bound to receive and acquiesce in the mere unsupported statement of the accounting party ; he has a right to have the account of the estate taken with the sanction of oaths, and all other guards against deception which a Court of Equity can supply.^ The circumstance, that the plaintiff himself, besides being a residuary legatee, is a co-executor with the defendants, will not make any difference in the application of the rule : though, if he files his bill in the character of creditor as well as legatee, and fails in establishing his claim as creditor, he will have to bear any additional costs which may have been occasioned by his unfounded claims.^ Where, how- ever, the executor had truly stated the condition of the estate, a residuary legatee, who filed a bill to take the accounts, was ordered to pay the costs of the suit out of his own share.* Where a bill is brought to secure and have the benefit of a con- tingent interest devised over, the costs must be paid out of the general assets of the testator who, by his will, occasioned the difficulty;^ and it is invariably held, that if, in the course of a suit for the administration of an estate, a difficulty arises upon the construction of the will, the costs occasioned by such difficulty must be defrayed out of the assets :^ even though the difficulty has 1 See Hainpson v. Brandwood, 1 Madd. 381, 394; Gardner v. Parker, 3 Madd. 184. For the princi- ples on which such costs will be taxed, see post. 2 Sharpies v. Sharpies, McLel. 606: 13 Pri. 746. 3 Ihid. 4 Mackenzie v. Taylor, 7 Beav. 407; Thompson v. Clive, H Beav. 476, 480; and see Attomey-Qent- ral V. Oibbs, 1 De G. & S. 166, 161. 5 Studhohne v. Hodgson, 3 P. Wms. 303. 6 This rule applies only to cases arising: under wills ; it does not apply where difficulties arise upon the construction of deeds : in which cases, although, if the deed which gives rise to the suit be so darkly framed aJi to occasion fair doubts as to its construction, the Court will excuse the unsuc- cessful parties their costs, it will not compel the successful party to pay them out of the estate : Hampson V. Brandwood, 1 Madd. 381, 394 ; see also Earl of Oxford v. Churchell, 3 V. & B. 59, 71, where the costs of an unsuccessful claim, set up on behalf of an infant, to a share of a fund under a settlement, were charged, not upon the general fund, but upon that portion of the fund to which the infant was held to be entitled. COSTS OUT OF THE FUND. 1581 arisen from parol evidence, introduced on the part of the defend- ant.^ When it is said,' that a legatee, filing a bill for his legacy, will be entitled to his costs out of the estate,«t must be understood only as applying to those cases in which he is successful in the suit. If a person claims as legatee, and his bill is dismissed, he will not, in general, be allowed his costs out of the testator's estate, notwithstanding there is an ambiguity in the will, which renders it necessary to apply to the Court for its construction.^ In such cases, the Court will usually, if the case involves consider- able difficulties, occasioned by conflicting decisions or the acts of the testator, or the plaintiff has a fair ground for making his claim, make each party bear his own costs, by ordering the dismissal to be without costs. Therefore, where a bill was filed, by the next of kin of a testator against the executors, for the undisposed of residue, and the next of kin failed, the bill was dismissed without costs : because the Com-t thought there was some excuse for their liti- gating the executor's right to it.^ And where, after a verdict upon an issue, finding against the legitimacy of a person claiming a legacy as a legitimate chUd, a question arose as to the costs, the Court refused to give costs against him : as he had always borne the name of the family, and been received in it.* Where, however, the bill is not simply dismissed, but a declaration of right is made, the plaintiff, though unsuccessful, is often given his costs.* It may be noticed here, that in a case where a bill was filed for a legacy, which had been bequeathed to an infant, and which had been more than satisfied by advances made for the infant's benefit, during his minority, and by a larger legacy bequeathed to the infant by the executor, the Court decreed in favour of the legatee, though there had been no demand for ten years after he came of age ; but as it considered the demand very ungracious, it gave the 1 Nourse v. Finch, 1 Ves. J. 344, 362. 2 Lister v. Sherringham, cited 1 Newl. Pr. 692 ; see, however, Lynn v. Beaver, T. & R. «3, 69 ; Windham Y. Cfraham, 1 Buss. 331, 347 ; Lee v. Delane, 4 De G. & S. 1, : 14 Jur. 861. 3 Brashbridge v. Woodrofe, 2 Atk. 69. 4 Forbes v. Taylor, 1 Ves. J. 99. 5 Merlin v. Blagrave, 25 Beav. 125, 135, 136 ; Lynn v. Beaver, T. & R. 69, 69 ; Thomason v. Wotet, a Beav. 77, 81 ; Wedgwood v. Adams, 8 Beav. 103 ; Johnston v. Todd, ib. 489 ; Cooper v. Pitcher, 4 Hare, 48S : Boreham v. Bignall, 8 Hare, 131 ; Turner v. Frampton, 2 Coll. 331 ; Lee v. Delane, 4 De G. & S. 1 : 14 Jur. 861; Hodgson v. Clarke, 1 De G. F. & J. 394. 1532 PROCEEDINGS IN THE JLVSTER'S OFFICE. legatee no costs.^ So, also, where the legatee i^ersisted in useless litigation, no costs were allowed.^ It is necessary, here, to advert to an important distinction with regard to the portion (jf the testator's estate out of which the costs are to be paid : for the rule is, that where any doubt or ambiguity arises under a will, with reference to any bequest or devise, which renders an application to the Court necessary, the costs occasioned by such application are to be paid, not out of the property with respect to which the doubt arises, but out of the general assets not otherwise disposed of.^ In other words, they are payable out of what is usually termed the residuary personal estate : athough, j^erhaps, the term may not be quite correct, inasmuch as the residuary estate is, strictly speaking, that part of the estate which remains after payment of all legal and testamentary Jclaims upon the estate, whether for debts, legacies, or costs j"* and this rule applies, although the testator charges his debts, funeral, and tes- tamentary expenses, upon a specific fund.^ Where, however, a testator charged a specific part of his estate with his debts, and the costs of executing the trusts of his will," or with his debts, funeral, and testamentary expenses, in exoneration of the residue, ' or in substitution for the residue, which failed,** the costs of the suit were held to be payable out of the part so charged. When next of kin, or persons claiming as a class under the will of a testator, succeed in establishing their title under a decree for the administration of the estate, it is usual for them to be allowed their costs : not their costs incurred out of doors in collecting information as to the pedigree of the party : not the costs of private inquiry ; but the costs incurred in the Judge's Chambers, and generally of proceedings in the suit f and the rule prevails, 1 Lee V. Brown, i Ves. 362, 869. 2 Ottley V. Gilby, 8 Beav. 602, 605 ; Thmnpmn v. Clive. 11 Beav. 475, 480. 3 Studkolme V. Hodgson, 3 P. Wms. 303 ; Jolliffe v. East, 3 Bro. C. C. 25, 27 ; Batigh v. Reed, ib. 193: 1 Ves. J. 257, 265 ; Attorney-General v. Hurst, 2 Cox, 364, 366; ^. C. nom. Attorney- General V. Winchelsea, 3 Bro, C. 0. 375, 381 ; Barrington y. Tristram, 6 ¥■■■<. 346, 349 ; Howse V. Chapman, 4 Yes. 542 ; Pearson v. Pearson, 1 Sch. & Lei. 12; Bagskaw y- Newton, 9 Mod. 283 ; Sisbett v. Murray, 5 Veu. 149, 158 ; Wilson v. Brownsrnith, 9 Ves. 180, 182 ; Wilson v. Squire, 13 Sim. 212; Uandleyv. Davies,S Jur N. S. 190, V. C. S. 4 Eyre v. Marsden 4 M. & C. 231, 243 ; Ripley v. Moysey, 1 Keen, 678 ; Pichford v. Broion, 2 K. & J. 426; 2 Jur. N. S. 781, 783; SamJere V. Miller, 26 Beav. \5i; Stringer w. Harper (So. 2), 26 Beav. 686 : 6 Jur. N. S. 401 ; Maddison v. Chapman, 1 J. & H. 470 ; Jolliffe v. Twyford, 4 Jur. N. S. 1166, M. E. 6 Brtywne v. Oroombndge, i Madd, 496, 502; Lmley v. Taylor, 1 GUf. 67; Stringer v. Harper, ubi sup. 6 Alsop V. Bell, 24 Beav. 451 ; see however, Lord Brougham v. Lord Poulett, 19 Beav. 119 : 1 Jur. N. S. 161. 7 Morrell v. Fisher, 4 De G. & S. 422, 424. 8 WUton v. Heaton, 11 Beav. 492, 494. 9 Shuttleworth v. Howarth, C & P. 228, 232. COSTS OUT OF THE FUND. 1533 whether they are made parties to the suit, or the fund is adminis- tered, without formally bringing them before the Court upon the record. 1 In such cases, if the residuary estate has ultimately to be divided amongst different classes of persons, the practice is for the costs of all the claimants to be paid out of the general estate, before any apportionment is made : even though the effect of such a mode of payment is to diminish the fund of one class of claim- ants, to an extent materially greater than the amount of costs due to that particular class. ^ Moreover, where the particular fund which has occasioned the litigation is no part of the residue, the general rule is, that the residuary estate should bear the costs of administering the estate. Thus, where it was necessary to have the decision of the Court, as to whether a legacy of 10,000^, given two sisters, was a joint bequest or in common, the costs were ordered to be paid, not out of the legacy, but out of the general assets.^ So, where a bill was brought to secure and have the benefit of a contingent interest devised over, the costs were ordered to be paid out of the residuary estate ; and where the question was, whether a legacy was specific or not, the costs of determining that question were ordered out of the general estate, in preference to the specific legacy, although the general estate was made the subject of a residuary bequest.* Upon the same ground, it was formerly held, that by giving a legacy to an infant, the testator made it necessary to come into Court for directions how to lay it out ; and that, therefore, the costs of a bill by an infant legatee, to have the legacy secured for his benefit, must be paid out of the residue.^ Such applications have, however, been rendered unnecessary, by the 86 Geo. III. c. 5'2, s. 32, which, in the case of an infant, authorises the executor to pay the legacy into Court ; and in Whopham v. Wingfield,^ the Court said that, in future, the costs would not be given in such a case. In the application of the rule, that the costs of suit are pay- able out of the general residue, no distinction exists between the cases in which it is disposed of, and those in which it is not ;' and where there are specific bequests and pecuniary legacies, which 1 Hutchinson v. Freeman, 4 M. & C. 490 : 3 Jur. 694 ; Swift v. Stm/t, 1 De G. F. & J. 160. 2 Shuttteworth v. Hoioarth, ubi sup. 3 JoUiffe v. East, 3 Bro. C. C. 26, 27. 4 Nisbett V. Murray, 5 Ves. 149, 168. 5 Arum. Mos. 6. 6 4 Ves. 630. 7 Eyre v. Marston, 4 M. & C. 244 ; Sishett v. Murray, ubi sup. ; Howse v. Chapman, 4 Ves. 642, 650 ; Cookson y. Bingham, 17 Beav. 262, 266. 1534 PROCEEDINGS IN THE MASTER'S OFFICE. exhaust the whole estate, so that there is no residue, the costs occasioned by the specific bequests' will be thrown upon the general fund, out of which the pecuniary legacies are payable. Thus, in Barton v. Cook,^ where there were specific and pecuniary legacies, and the personal estate, after setting apart the specific legacies, was not sufficient to pay all the pecuniary legacies, so that an abatement amongst them became necessary, the costs were ordered to be paid out of the personal estate not specifically bequeathed. The rule will also prevail, where property izitended to be disposed of has, in the result, been declared undisposed of: there the costs will not be thrown upon the property so declared to be undisposed of, but, as in other cases, upon the general estate. Thus, in Howse V. Chapman,^ where some of the bequests in favour of the City of Bath, which were specific, were held to be void under the Statute of Mortmain, the costs were ordered, in the first instance, to be paid out of the residue undisposed of, that is, out of the property not specifically given ; but, in case of a deficiency, the remainder of the costs were to be defrayed out of the property specifically bequeathed, and to the payment thereof the property well given, and the property intended to be given, but which had been held to be undisposed of, were to contribute pro rata. So, where a legacy given by a will has lapsed by the death of the legatee in the lifetime of the testator, the costs will be paid out of the general fund, and not out of the lapsed legacy :^ and the same rule applies, where the intestacy, as to part, does not arise from lapse, but from revocation of a bequest : as in Cresswell v. Cheslyn,* as explained in the note to Skrymsher v. Northcote ;^ and in the latter case itself, in which the question was argued, that the costs of the suit ought to be paid out of the part undisposed of, and not out of the general estate. Sir Thomas Plumer, M. E., decided that the costs should be apportioned.^ It makes no difference whether the property undisposed of, (whether from lapse or from any other cause,) was given as a specific or pecuniary bequest, or as a share of the residue : in either case, the costs of the suit will not fall on the undisposed of share, 1 5 Ves. 461, 464. 2 4 Vc3. 642, 661. 3 Roberts v. Wallcer, 1 R. & M. 752, 767 4 2 Eden, 123. 6 1 Sumiut. 671 n. (n). 6 See Eyre t. Martden, 4 M. & C. 231. 245. COSTS OUT OF THE FUND. 1535 but on all the shares. Thus, in Ackroyd v. Smithson,^ the costs were paid pro rata out of the share of the residue which the legatees took, and those shares which had lapsed ; and, in cases where part of the property given to a charity becomes undisposed of, from being within the Mortmain Act, it has been long settled that the costs are paid pro rata out of the property so undisposed of, and the property well bequeathed to the charity.^ The cases above referred to, establish the principle that, where an intestacy as to part of the personal estate arises from the intention of the testator being defeated by the happening of some event, or by the operation of the law, the part thus falling to the next of kin, is, in his hands, subject to the same liability as to costs, and no more, that it would have been subject to, if the gift had taken effect; and the principle has been extended to cases where accumulations directed by a will have been declared abso- lutely null and void, under the Thellusson Act (39 &40 Geo. III. c. 98). Thus, in Eyre v. Marsden,^ where Lord Langdale, M.E., * having declared that a direction for the accumulation of the pro- duce of the testator's freehold and personal estate was void under the above Act, and that such parts of the accumulation as arose from the real estate belonged to the heir, directed the costs of the suit to be paid pro rata by the heir, and personal representatives, out of the accumulations devolving upon them : Lord Cottenham, upon appeal, varied the decree, by directing the costs to be paid out of the general estate of the testator.* But although the rule is, that the costs of a litigation, in the course of administering a will, are given out of the general assets, in preference to the particular fund, yet, if the particular fund has been served from the residue, and the question is merely between the persons claiming to be entitled to it, the costs must come out 1 1 Bro. C. C. 503 The printed report, however, is silent as to costs, but the direction as to coats, is slio-wn by the Rejjistrar's book' ; see 4 M. A G. 245 ; see also Maddison v. PyCy 32 Beav. 658. 2 Per Lord Cottenham, in Eyre v. Marsden, 4 M. & C. 231, 245 ; and see Attorney-Geiieval v. Lord Wiiicheliea, 3 Bro. C. C. 373, 380 ; Attorney-General v. Hurst. 2 Cox, 364, 366 ; Howse v. Chap- 7mm, 4 Vcs. 542, 650 ; Taylor v. Bogg, 5 Jur. N. S. 137, V. C. S. 3 4 M. & C. 231 ; and see Elborne v. Goode, 14 Sim. 165, 179 : 8 Jur. 1001 : Barrett v. Buck, 12 Jur. 771, v. O.Vf. ; Holgate v. Uaworth, 17 Beav. 259 : Oddie v. Broun, 4 De G. & J. 179, 198 : 6 Jur. N. f. 636, 637 ; Green v. Gascoyne, 11 Jur. N. S. 145 : 13 W. R. 371, L. C, 4 2 Keen, 564, 578, 580. 6 4 M. & C. 248. 1536 PROCEEriNQS m the master's office. of the particlilar fund.^ Thus, it is the ordinary course of the Court, where there is some legacy clearly payable, but it is uncer- tain who is entitled to it, to order the legacy to be paid into Court to a separate account, with liberty for any person interested in it to apply, and to proceed to a distribution of the residue of the testator's estate : in such case, any costs which may afterwards be incurred, in inquiring who is entitled to such legacy, must come out of the particular fund : for the Court will never postpone the distribution of the residue, to answer the costs of such inquiry. When, in consequence of the state in which a testator left his papers, a reasonable doubt was created as to his having left a will, the costs of the parties necessary to discuss the question of " will or no will *' were ordered to be borne by his estate.^ Where the question was, whether certain legacies were specific or not, and inquiries had been directed as to the appointment of a guardian and maintenance for a specific legatee, who was an infant, the costs of the suit, except as to the inquiries with respect to the guardian and maintenance, were ordered to be paid out of the general assets, and the costs as to the guardian and mainten- ance were directed to be paid by sale of a sufficient part of the specific legacy.^ So, also, the costs of the Bank of England, made a paiiy for the security of a legacy, the right to which was under discussion, were paid out of the legacy ;* and if the plaintiffs, in a suit relating to the construction of a will, unnecessarily mix up other questions with the questions arising under the will of the testa- tor, the costs of such part of the suit only as relate "to the con- struction of the will, will be paid out of the general assets. Thus, where a doubt arose under a will, whether a legacy given by the testator was undisposed of, and a suit was instituted by the residuary legatees of one of the next of kin of the testator, instead of his personal representative, in the course of which questions arose be- tween them, the costs of so much only of the suit as related to the 1 Jenour v. Jenour, 10 Ves. 662, 673 ; see also Shaw v. Pickthall, Dan. 02 : Duke of Manchester v. Bonhmn, 3 Ves. 61, 64 ; Kingv. Taylor, 6Ves. 806, 810 ; Wilsonw. Squire, 13 Sim. ai2 ; Dugdalev. Dugdale, 12 Beav. 247, 251 ; Governesses' Institution v. Rusbridger, 18 Beav. 467 ; lilehardsonv. Rusbridger, 20 Beav. 136 ; Attorney-General v. Lawes, 8 Hiire, 32, 43 ; see also Pennington v. Buckley, 6 Hare, 451, 455. Costs of taking out administration to a share were allowed, under circumstances, out of the general estate : Cotton v. Penrose, 13 Jur. 761, Y.C.R.B. 2 Bessey v Bostwick, 14 Grant, 246. 3 Bartonv. Cooke, 5 Ves. 461, 464. 4 Hammond v. ^eame, 1 Swanst. 38. COSTS OtTT OF THE FUND. 1537 decision upon the will were ordered to be paid out of the general assets of the original testator.^ It naay be remarked that, where a party entitled, either to a legacy or share of a residue, incumbers his legacy or share, or by any act of his own occasions additional expense in respect of it, beyond what is necessary for the due administration of the estate, the additional expense will be thrown upon the particular fund or portion ; and only one set of costs will be allowed out of the estate to the party entitled and his incumbrancers, and such costs will in general be made payable to the first incumbrancer.^ A similar rule will be applied, in the case of a bankrupt legatee and his assignees ;^ of a trustee and his cestui que trust ;* and of a husband and wife, living apart, and improperly severing in their defence.^ Where different funds are the subject of distribution or discussion in the same suit, the costs of the suit are generally apportioned pro rata between the different funds. ^ In Leacroft v. Maynard,'' where the testator charged his legacies upon his real estate, and then bequeathed a legacy to a charity, the amount of which he altered by his codicil, whereupon a bill was filed for the general administration of the testator's estate, and another bill was also unnecessarily filed by the heir at law to have the legacy bequeathed to the charity declared void under the Statute of Mortmain, and to have the real estate conveyed to him dis- charged of it : the Court directed that the costs of the suits, so far as they related to the personal estate, should come out of the per- sonal estate, and that the costs which related to the real estate should be borne by the real estate : so that the costs of the bill filed by the heir should fall upon the real estate. So, also, the 1 Skrymsher ^ . Northcote, 1 Swansi, 566 572. » 2 Greeley v. Lavender, 11 Beav. 417, 420 : Seton, 162 (No. 12), 167, where form of order is given • Remnant v. Hood (So. 2), 27 Beav 613 ; Ward v. Yates, 1 Dr. & Sm. 80; and see Bassevi v' Serra, 3 Mer. 674, 676 : 14 Ves. 313, 317 ; see also Mocatta v. Lousada, cited 3 Mer. 676 • 14 Ves 317. 3 Brace v. Ormcnd, 2 J. & W. 436 ; Garey v. Whittingham, 5 Beav. 268, 270. 4 Remnant v. Hood, ubi sup. ; Farr v. Sherife, 4 Hare, 528. 5 Garey v, Wkittinghara , ubi sup. H Heiyhington v. Grant, 1 Beav. 228, 231 ; Johnston v. Todd, 8 Beav. 489, 492 ; Hopkinson v. Ellis 10 Beav. 169, 176 ; Sanders v Miller, 26 Beav. 164 ; Elborne v. Goode, 14 Sim. 166, 179 : 8 Jur' 1001 ; Christian v. Foster, 2 Phill. 161, 166 ; and see Attorney-General v Lawes. 8 Hare 32 7 1 Ves. J. 279 : S Bro. C. C 283. • • " ■ 1538 PROCEEDINGS IN THE MASTER'S OFFICE. costs have been apportioned between the appointed and unappointed parts of a fund/ according to the different values of the appointed parts ;^ and between several charities, where one scheme was settled for them all.^ So, also, where there were no debts or per- sonal estate, the costs were thrown rateably on devised and des- cended realty.* Similiar decrees, for an apportionment of costs between real and personal estates, appear to have been made in Jones V. Mitchell,^ and Dixon v. Dawson.'^ Where the suit was for the administration of the estate of a testator, but it also involved the execution of the trusts of a settle- ment, the costs occasioned by that portion of the suit relating to the settlement were directed to be borne by the settlement fund ; " and in King v. Taylor,^ where the question was whether a legacy of stock and a share of the residue under a will went to the hus- band of a married woman who was dead, or to her brother, and the Court decided that the legacy went to the husband, and the share of the residue to the brother, the costs were ordered to be borne by each fund in moieties. In suits to rectify settlements, in which no blame is imputable to either side, the costs will, in general, be made payable out of the settled property.^ It may be mentioned, in this place, that where a cestui que trust, having a life interest only, is declared entitled to his costs out of the trust estate, the Court will not content itself with merely giving him a lien upon the corpus of the estate by the decree, leaving him to enforce it by subsequent proceedings, but it will direct an immediate sale of a sufficient part of the estate to raise the costs : and it appears that the omission of such a provision in the decree may be the subject of a re-hearing.'" A life interest will not be valued, for the purpose of charging costs upon it.'' I rrollope y. Boutledge, 1 De G. & S. 662, 671. 2 Warren v. PostlHlnmite , 2 Coll. 116, 123. 3 Rt Stagori Charities, 26 Beav. 667. 4 Bagot V. Legge, 2 Dr. & Sm 250 : 10 Jur N. S. 1092. 5 1 S. & S. 290, 295 « 2 S. & S. a27, 340 ; see also 1 Bro. C. C, ed. Belt, 265, n. (3) ; Walter v. Maunde, 19 Ves. 424, 429 ; Bunnett v. Foster, 7 Beav. 540, 644 ; Johnston v. Todd, 8 Beav. 4S9, 492 ; HopHnson v. Ellm, 10 Beav. 169, 176 ; Sanders v. Miller, 25 Beav. 154 ; and see Seton, 247. 7 Irby v. Irby, 24 Beav. 626. 8 5 Ves. 806, 810. 9 Stock V. Vining 26 Beav. 235. 10 Burkettv. Spray, 1 R. & M. 113, 115 ; Mandeno v. Mandeno, Kay, App. 2, 4. It seems, however, that, in such a case, the party entitled to the costs, instead of appealing-, may appl}' by motion to have them raised by sale : see Cannell v. Beeby, Beam.es on Costs, App. No. 7. II Coomhe v. Hughes, 13 W. R. 700, L. JJ. THE PRINCIPLES OF TAXATION. 1539 In the case of costs, the Court will take any fund which, in the absence of all others, is liable to costs, and apply it for that pur- pose. If the fund is not ultimately to bear the costs, it is usual and more proper to add to the order the words, " without prejudice to the question how the same are ultimately to be borne," or words to a similar effect ; but the absence of such words does not, neces- sarily, imply that the Court has decided that the fund out of which the costs are directed to be paid is the fund which must ultimately bear them ; nor does their absence prevent any error from being set right, at any future period.^ The Principles of Taxation. It has been stated, that the Court of Chancery makes a dis- tinction, with regard to the principle upon which the officer of the Court is to proceed in the taxation of costs ; and that this distinc- tion is marked by the terms of : " costs as between party and party," and " costs as between solicitor and client " : the Court, in the latter case, permitting a larger proportion of actual expenditure to parties holding particular characters, than it allows in the former case. No definite rules can be laid down, with respect to the difference between the costs allowed upon one principle of taxation, and those allowed upon the other. In general, however, in taxations as between party and party, only those charges will be allowed which are strictly necessary for the purposes of the pro- secution of the litigation, or are contained in the tables of fees annexed to the general orders and regulations of the Court : while in taxations as between solicitor and client, the party will be allowed as many of the charges which he would have been com- pelled to pay his own solicitor, as being costs of suit, as fair justice to the other party will permit.^ It must not, however, be supposed that, in taxations between solicitor and client, the party, whose costs are to be taxed, will be allowed everything which his own solicitor might claim against him upon the taxation of his bill : for regard will be had to the position of the parties, and the fund out of which the costs are to be paid ; and a distinction is made : First, where such costs are 1 Sheppard v. Sheppard, 33 Beav. 129, 130, 131 ; Seton, 87, 93. 2 See Forster v. Dairies, 11 W. E. 813, M. E. ; Morgan tt Davey, 1. 7^ 1540 COSTS. payable out of a fund belonging to other parties ; secondly, where such costs are payable out of a common fund, in which the party entitled to costs has only a limited interest ; and, thirdly, where such costs are payable out of a fund belonging exclusively to such party himself.^ These distincticms, however, are not made in the order directing the taxation, but only when the order is acted upon by the Taxing Master ; and, if it is intended that the party, whose costs are to be paid out of a general fund, should be fully indemni- fied against all expenses, or against any expenses not strictly costs of suit, care must be taken to have it so expressed in the ordinary order : as the direction, that the costs are to be taxed as between solicitor and client, will not, in such a case, be sufficient.^ The above observations will suffice to convey a general outHne of the distinction between costs as between party and party, and as between solicitor and client. We will now proceed to inquire in what cases the Court will direct,[the costs of a suit to be taxed upon either principle ; or rather, in what cases the Court will direct the costs of a party to be taxed as between solicitor and client : the general rule of the Court being, that all costs are to be taxed as between party and party, except where they are specially directed to be taxed as between solicitor and client : whence it follows, that, where the direction is simply to tax the costs of the suit, it is always construed to mean as between party and party.^ It may be here mentioned, that, where the Court has once adopted the principle of" taxation as between solicitor and client, in favour of a particular individual, or of a particular class, it will, in its future proceedings, wherever it becomes necessary to direct a further taxation of costs, direct it to be made upon the footing of the former taxation. Thus, if, upon the original hearing, the costs of a party have been ordered to be taxed as between solicitor and client, the Court will, at the hearing upon further consideration, direct the subsequent costs of the same party to be taxed in the same manner : even though a different state of circumstances should appear from the certificate, from that which was supposed to exist at the original hearing ; it is only, however, where the former direction for taxation has been made at a hearing of the 1 Seton, 92, 93. 2 See Setm, 92. 3 Seton, 92 ; Morgan & Davey, I. THE PRINCtPLES OF TAXATION. 1541 cause, either original or upon further consideration, that the Court will consider itself bound by it, at the subsequent hearing. It appears to be the general rule of the Court, that, when per- sonal representatives and other trustees are entitled to costs out of the fund, such costs will be directed to be taxed as between solicitor and client. It is, however, in general, only in cases in which there is a fund under the control of the Court that such a direction will be given : where there is no such fund, or a bill against the trustee is dismissed, the costs awarded to the trustee will be only the ordinary costs.^ Thus, where a testamentary paper was held void for uncertainty, and the bill was dismissed with costs, it was sug- gested that some of the defendants, being trustees, should receive their costs, as between solicitor and client ; but the Court, on the ground that they were trustees of a nullity, and that there was no fund out of which such costs could come, refused to allow them their costs as between solicitor and client ; and dismissed the bill, with costs as between party and party.^ Under special circumstances, however, costs have been given, in such cases, as between solicitor and client.^ Where a trustee disclaims, he wiU only be allowed his costs as between party and party ;* and this rule will be observed, even where the plaintiff continues him as a party to the suit, up to the hearing, although he has disclaimed by his answer ;^ and where a bill was dismissed against a person who was named in a deed as a trustee, but had not executed the deed, or in any manner accepted the trust, and had, by his answer, altogether declined it, he was held not to be entitled, to have it dismissed with costs as between solicitor and client, but only with the ordinary costs between party and party.* 1 Saxmders v. Saunders, 3 Jur. N. S. 727: 5 W. R. 479, V.C.K. ; Edenborough v. Archbislwp of Canterbury, 2 Russ. 93, 112 ; Seton, 767. 2 Mohun V. Mohun, 1 Swanst. 201, 203 3 Edenborough v. Archbishop of Canterbury, ubi sup., where the Court, on the authority of Towns- head V. Bishop of Norwich, which occurred in 18'^4, ^^ave costs, as between solicitor and client, to the Archbishop and Bishop of London, who had been made parties to the suit for the purpose of restraining the induction of an incumbent to a living;, or from availing themselves of any lapse which might occur pending the suit ; see also Poole v. Pass, I Beav. 600, 605 : Attorney-General V. Cuming, 2 Y. & C. C. C. 139, 156, 169. 4 Bulkeley v. Earl of Eglinton, 1 Jur. N. S. 994, V.C.W. ; Heap v. Jones, 6 W. R. 106, V.C.K. 5 Bray v. West, 9 Sim. 429. 6 Norway v. Norway. 2 M. & K. 278 ; overruling Sherratt v.-Bentley, 1 R. & M. 655. 1542 COSTS. It has been already stated, that, in a charity case, where an heir at law was made a defendant, pursuant to an order of the Court, he was allowed his costs as between solicitor and client, although there was no resulting trust in his favour ;i and it seems that, in general, in charity cases, the heir will, if he makes no improper point, be awarded his costs as between solicitor and client. This rule was acted upon in Currie v. Pye ;^ and in Moggridge v. Thack- well :* in which latter case the heir at law, as well as the Attorney- General and aU the other parties, were allowed their costs out of the fund, as between solicitor and client. The next of kin will also, in general, be allowed, in charity cases, their costs as between solicitor and client.* It seems also, that in general, where the object of a suit is to establish a charity, and the estate is ample, the costs of aU parties will be taxed as between solicitor and client ;^ and, in Attorney- General V. Carte,^ where the decree had merely ordered that the parties should be paid their costs, to be taxed by the Master, out of the estate, without giving any direction as to the principle of taxation, in consequence of which the Master refused to tax the costs otherwise than as between party and party, the Court enter- tained a petition for an order that the taxation of the costs should be as between solicitor and client. There is not, however, any fixed rule of the Court in this respect.^ Where a bill has been filed for the general benefit of creditors, and the estate has proved insufficient,' the Court will give the plaintiff his costs of the suit, out of the fund realised by his exertions, as between solicitor and client.* This rule equally applies, where the bill has been filed by a simple contract creditor, and the specialty creditors have proved debts to an amount exceed- 1 Attorney-General v. Haberdashers' Company, 4 Bro. C. C. 178 ; and see ib. ed. Belt's, a. (2); Beames on Costs, App. No. 18. 2 17 Ves. 462, 468. 3 1 Ves. J. 464, 47.5 ; 7 Ves. 36, 88 ; see, however, Whieker v. Hume, 14 Beav, 509, 628. 4 Gaffney v. Hevey, 1 Dr. & Wal. 12, 25 ; Carter v. Green, 3 K. & J. 691 ; 3 Jur. N. S. 905, 907. 5 Moggridge V. ThacTcwell, iibi sup.; Currie v. Pye,ubisup.; and see Attorney-General v. Carte, Beames on Costs, App., No. 2 : 1 Dick. 113 ; Bishop of Hereford v. Adams, 7 Ves. 324, 332 ; and see Osborne v. Denne, 7 Ves. 424. 6 Ubi sup. 7 Aria v. Bmanuel, 9 W. E. 366, M. E.; Whieker v. Humt, 14 Beav. 509, 628. 8 See Sutton v. Doggett, 3 Beav. 9. 9 Turner v. Turner, cited 2 R. & M. 687 ; Hood v, Wilson, ib.; Brodie v. Bolton, 3 M. & K 168 ; Stanton v. Hatfield. 1 Keen, 368, 362 ; Tootal v. Spicer, 4 Sim. 510 ; Sutton v. Doggett, 3 Beav. 9 ; Thomas v. Jones, 1 Dr. & Sm. 134 ; 6 Jur. N. S. 391 : overruling Young v. Everest, 1 K. & it. 426 ; Rowlands v. Tucker, 1 li & M. 635 ; and see Seton, 145, 146 ; Morgan i- Davey, 136. THE PRINCIPLES OF TAXATION. ,1543 ing the value of the assets received ■} unless the specialty creditors have given the plaintiff notice of the insufficiency of the estate, and not to proceed with the suit.^ A similar rule has been adopted, in the case of suits by legatees, where the estate, although sufficient to pay the debts, has proved insufficient to pay the legacies in fuU.^ If, however, in a suit instituted by a legatee, the fund is insufficient for the payment of the debts and costs,* or, if in a suit instituted by a residuary legatee, the fund is insufficient for the payment of the debts, legacies and costs, ^ the plaintiff will only be allowed his costs, as between party and party.® Where, in an administration suit by the heir at law, the realty and personalty were insufficient, the heir had his costs as between solicitor and client.^ • But it is only where the fund is insufficient, that the plaintiff, in suits of this description, will be entitled to have his costs taxed in so favourable a manner : where the fund is sufficient to pay all the debts or legacies, and to leave a surplus for the residuary legatee, the plaintiff will only have his costs as between party and party. * Where, however, in a creditors' suit, a fund had been realised by the diligence of the plaintiff, and the assets were more than suffi- cient for the payment of the debts. Lord Langdale,'M. E., con- sidering it a hardship that creditors not parties to the suit should come in and reap the benefit of it, without contributing to the plaintiff's extra costs, made an order, by which it was directed that the plaintiff's costs, as between party and party, should be paid out of the fund, and that his extra costs should be paid, pro rata, by all the creditors who partook of the benefit of the suit.^ t LarHns v. Paxton, 2 M. & K. 320 ; Bm-ker v. Wardle, ih. 818 ; Richardson v. Jenkins, 17 Jur. 446 ; not reported on this point in 1 Drew. 477. 2 Morgan li; Davey,^37. 3 JBurkett \. Sansom, 2 Coll, 538 ; Cross v. Eennington, 11 Beav. 89 ; Waldron v. Frances, 10 Hare, App 10 ; Thvmas v. Jojks, 1 Dr. & Sm. 134 ; Bissett v. Burgess, 23 Beav. 278, 281 . 4 Weston V. Clowes, 15 Sim. 610 ; Wetenhall v. Dennis, 33 Beav. 286 : S. C. nmn. Wettennall v. Davis, 9 Jur. N. S. 1216. As to the costs of plaintiffs in a next-of-kin suit, where residue is ex- haustf'd in debts, see Newbegin v. Bell, 23 Beav. 386. 5 Wroufjhton v. Colqitho^i-n, 1 De G. & S. 357. 6 See, however, Wroughton v. Colquhoun, ubi sup., and Newman v. Hatch, cited Seton, 165, as to the allowance of special costs in addition. 7 Tardrew v. Howell, 2 Qiff. 530 : 7 Jur. N. S. 987 ; Shittler v. Shittler, 4 N. E. 475, M. E. 8 Brodie v. Bolton, 3 M. & K. 168 ; Thomas v. Jones, ubi sup. 9 Stanton v. Hatjield, 1 Keen, 358, 362 ; Sutton v. Doggett, 3 Beav. 9 ; Goldsmith v. Russell, 6 De G. . M. & G. 547, 666. 1544 COSTS. It frequently happens that, in suits to which trustees or personal representatives are parties, either as plaintiffs or defendants, and which do not involve any account, they have incurred expenses which it is very right they should be reimbursed, but which do not fall under the denomination of costs of the suit, even when directed to be taxed as between solicitor and client. Of this nature are cases laid before counsel, for their opinion preparatory to the institution of the suit, and many other charges of that description, to which, where there is a decree directing an account a trustee would be considered entitled, under the head of just allowances, but which, where there is no decree for an account, and con- sequently no opportunity of claiming j ust allowances, a trustee would be in danger of losing : especially in cases where the suit does not involve property out of which they can be retained, or disposes of the whole of the trust fund. The Court will, therefore, in such cases, upon the statement that such charges have been incurred, extend the order for the taxation of costs, as between solicitor and client, to the costs, charges, and expenses properly incurred by the trustee.^ Under such a direction as this, the trustee may obtain all such expenses as he has properly incurred, relating to the trust property, in or in connection with the suit : although they are not properly costs in the cause ; and under it he may be allowed the costs of litigation conducted by him strictly as trustee, whether successfully or unsuccessfully, and although he may not have been allowed such costs in the suits in which they have been incurred.^ Where the costs are to be paid out of the party's own fund the direction to tax as between solicitor and client, may properly include his costs of or relating to the suit or proceeding, and con- sequent thereon.^ Except in the cases above pointed out, it is not the practice to give a party his costs, charges, and expenses. Where, however, a defendant put in four insufficient answers, and was committed till he was examined upon interrogatories, he was, after putting in his examination, ordered to be discharged, on payment of the plaintiff's 1 Seton, 768 ; Morgan rford's case,^ the creditors complained, that the pro- perty had not been applied as it oufjlit : it was objected, that they could not come in under the decree, and impeach it ; but it was answered that they might : for, if the decree contained itself a wrong disposition of the property, they, coming iir as creditors, had a right to appeal, because the decree bound their rights. In Oshornc v. Ushir^ the same juijiciple was admitted ; and it was held, that if the right of a remainder-man, or of any person entitled to the estate in any way, is bound by the decree, he must have a right to appeal from it, as well as the person against whom it was made. Upon this ground, it has been held that a tenant in tail, in remainder expectant after the determination of a prior estate tail (who would not be a necessary party to a suit affecting the entailed estate, against the i^rior tenant in tail), has a right to appeal against the decree in that suit ; and that he may file a sup- plemental bill, for the purpose of making himself a party to the suit, in order to appeal from it.^ It has also been determined, by the House of Lords, that a pur- chaser under a decree, though no party to the suit, may appeal from an order setting aside a bidding, and ortlering a new sale ; ^' and it has been held, that a creditor coming in under a decree, and having his claim disallowed, may appeal from the order disallow- ing it.^ It is only, however, in cases in which the interest of the party, wishing to appeal, will be bound by the decree, that a rehearing or appeal will be permitted, at the instance of an individual not on 1 Giffard v. Hort, 1 Sch. & Lef. 409. 2 Berry v. Attorney-General, 2 McN. & G. 36 ; Gwynne v. Edwards, 9 Beav. 22, 34; Hogson v. Smithson, i W. R. fi99, L. J. J. ; Parmiter v. Harm iter, 1 Tie G. P. & J. 626 ; but it seems that a shareholder, not named as a party to the proceedings, maj' apply to the Court to vary or discharge a winding-up order, without applying for leave to reliear : lie Anglo-Cali^orniaii Gold Mining Coinpany, 1 Dr. & Sm. 628, C32 : S Jur. N. S. 129 ; and See Seton, 1154. 3 Cited, 1 Sch. & Let. 409. 4 Hid. ; 6 Bro. P. C. ed. Toml. 20. 5 Giffard v, Ilnrt, 1 Sch. & Lef. 411 ,' but see Osborne v. Uaher, vM sup. ; where such an appeal was sutitained, although it does not appear that any supplemental bill was filed Byder v. Sari Ooioer, 6 Bro. P. C. ed. Toml. 306 ; Barlow v. Osborne, H. L, Ca. 666 : 4 Jur. N. S. 367. 7 Earl of Winchilsea v. Garetty, 1 M. & K. 263, 267. 1558 ' GENERALLY. the record : in no other ease can he have ground to complain of the decree or order. ^ A party who is poor is entitled to prosecute or defend an appeal or a rehearing, in forma pauperis, in the same manner that he has a right to sue, and he sued, in that character.^ In the House of Lords, a poor person may also be admitted to sue or defend in forma pauperis.^ The grounds upon which a party may appeal from a decree or order of the Court, or have it re-heard, are as numerous and various as the eases themselves ; and cannot therefore be pointed out in de- tail. In fact, wherever the Court is called upon to determine a question of Law or of fact the decision may be the subject of a rehearing or appeal, by any party, bound thereby, who considers himself aggrieved by it. The only case in which a party cannot appeal from the decision of the Court is, where the determination complained of is merely the result of the exercise of discretion on the part of the Judge, in a ease where the matter was fairly a subject for the exercise of discretion : in such cases the practice of the Court will not allow an appeal from the discretion of one Judge to that of another.* Upon this ground it is, that the Courts have adopted the rule, that there can be no rehearing or appeal upon the question of costs.^ The foundation of this rule, as stated by Lord Hardwicke, in Owen v. Griffith,^ is to prevent vexation and trouble : for, as cases in Equity often depend on abundance of circumstances, about which the reason of mankind might differ, the question of costs would, if it could be laid open generally, create perpetual appeals. The operation of the rule, however, is strictly confined to cases in which costs are to be paid by one party to another, and do not form any part of the relief sought by the bill ; and it is 1 Earl of Winchilsea v. Oaretty, 1 M. & K. 253, 257. 2 Bland v. Lamb, 2 J & W. 402. 3 Macqueen's H. L. Prac. 259. 4 There is, therefore, no appeal from an order directing a question of fact to be tried before the Judge and a special jury ; Scrubsole v. Schneider, 12 W. R. 359, L. C. 5 As to appeals for costs, see Morgan & Davey, 105. 6 1 Ves. S. 250 ; and see Wirdman v. Kent, 1 Bro. C. C. 140 : 2 Dick. 594 ; Williams v Begnon, cited 2 Dicic. 595; and Beames on Costs, App. No. 10. It is to be noticed, that the case of Gould v. Grander, in Moseley, 395, which, from the statement of it there, appears to be at variance with the rule laid down, is incorrectly reported : the question having been not as to the costs of the cause, hut as to the costs of the conveyance of the estate; see Beames on Costs, App. No. 12 : and Angell v. Davis, 4 M. & C. 363. REHEARINGS AND APPEALS. 1559 liable to exception, where any principle is involved ;^ or where the costs are payable out of a fund ; or are chargeable upon an estate ; or are part of the relief to which a party is entitled, and the facts of the case distinctly appear upon the face of the proceedings them- selves : so that it is not necessary, in determining the question of costs, upon the appeal, to enter into any investigation of the merits.^ Upon this ground, in the case of Owen v. Griffith, above cited. Lord Hardwicke entertained an appeal by an incumbrancer : who had brought his bill to compel the payment of his charge, out of an estate which he had extended by elegit upon a judgment, and to whom the Judge below had refused his costs, although he had given him his principal and interest : his Lordship holding, that an incumbrancer upon an estate for a just debt has a lien upon the estate for his costs, as well as his demand ; and that, therefore, the appeal, although for costs, affected the merits of the case.^ The same distinction was recognized, by Lord Northington, in Cowper V. Scott,* and by Lord Eldon, in Jenour v. Jenour.^ In the latter case, the question arose upon the interest of the parties in a trust fund, which had been separated from the general residue, and the bill prayed, that the costs of the suit might be paid out of the general estate : upon the hearing, the costs were ordered to be paid out of the general estate ; but on an appeal, although the decree of the Master of the Eolls, upon the right to the fund, was affirmed. Lord Eldon corrected the decree, as to costs, by directing them to be paid out of the particular fund, and not out of the general estate : holding, that the costs were not within the common rule. So, in Taylor v. Popham,^ Lord Eldon states the rule to be that where the costs are disposed of, as subjects of relief : though they are the subject of appeal, it is not an appeal for costs only. In that case, a creditor had a contingent lien upon a particular fund : which had been appropriated to answer it ; and an order of Lord Erskine had given, to the solicitors in the cause, a lien for their 1 Perks V. Stothert, 11 W. E. 1016, V. C. K.; Chappell v. Gregory, 2 De G. J. & S. 111. 2 Arwell T. Davis, 4 M & C. 360, 366 ; Chappell v. Purday, 2 Phill. 227, 229 : 11 Jur. 266 , Horn v. Coleman, 6 W. R. 409, L.JJ.; He Cant's Estate, 1 De G. F. & J. 163 : 6 Jur. N. S. 183 ; Corpora- tion of Boehester v. Lee, 2 De G. M. & G. 427, 430 ; Chappell v. Gregory, uU sup.; and see Col- lard V. Roe, 7 W. R. 623, L. C. & L.JJ. ; Seton, 1167. 3 See Angell v. Davis, 4 M. & C. 863 ; Norton v. Cooper. 6 De G. M. & G. 728. 4 1 Eden, 17; S. C. nmn. Cooper v, Scott, 1 Bro. C. C. 141, n. 5 10 Ves. 662, .573. 6 is Ves, 72 ; and see Heighington v. Grant, 1 Phill. 600. 1560 GENERALLY. costs, upon the fund generally.^ The question on the appeal was, whether they should have those costs out of the appropriated fund, in preference to the party having the contingent claim upon it ; and Lord Eldon's observation upon the question is : " It is quite competent to rehear or appeal upon such a point concerning costs as this : the Court having given costs, has applied the fund of the party to a payment to which it ought not to have been applied."^ The same distinction was acted upon by Lord Lyndhurst, in Barkett v. Spray ;^ and was much considered and approved of by Lord Cottenham, in Taylor v. Southgate,^ Eyre v. Marsden,^ and Angell v. Davis :^ in the last of which cases, his Lordship founds his judgment upon three very important circumstances which appeared in the case : any of which, his Lordship held, would have been sufficient to sustain the appeal : 1st. The bill prayed, that the defendant might restore the property in question, and pay the costs : asking the payment of the costs, by way of special relief ;'' 2ndly. The case was one, in which the proceedings them- selves, without going into the details of the transaction, furnished all the information necessary for the purpose of determining the question ; and, 3rdly. It was not a case of persona] costs, in which the Court had ordered one party to pay them ; but a case in which the Court had directed them to be paid out of a particular fund.^ In a subsequent case. Lord Cottenham held, that as a party inter- ested in a fund, might appeal from a decree directing costs to be paid out of that fund, so persons personally ordered to pay costs might appeal from the decree, on the ground that the costs ought to be paid out of the fund.'* The case alluded to was an appeal from a decree of Sir Lancelot Shadwell, V.C, with regard to the right to a certain fund in Court, which was claimed by a married woman against her husband, as property settled to her separate use. The Vice-ChanceUor held, that the fund belonged to the wife ; and ordered the costs of the suit to be paid by the hnsband, and the trustees of the settlement. Prom this decision two petitions for a rehearing were presented : one by the husband, and the other 1 See 13 Ves. 69, 61. 2 See 16 Vea. 78. 3 1 B. 4 M. 113, 116. ■4 4 M. & C. 203. 6 Jbi4. 231. 6 Ibid. 360. 7 In Lancashire v. Lancashire, 2 Phill. 657, 661, 662, this was held insufficient ; see also UmpUby v. Waveney Valley Railway Company, IJ. & H. 264. S 4 M. & C. 362, 366. 9 Panot V. Bagot, U C. July, 1840, MSS. EEHEAEINGS AND APPEALS. 1561 by the trustees. It was objected, at the rehearing, that the petition of the trustees, being in effect merely an appeal for costs, could not be proceeded with ; but Lord Cottenham held, that an appeal for costs, under such circumstances, might be sustained ; and allowed the argument to go on. Another exception to the general rule as to costs, is afforded by a decision^ in the House of Lords : which, although made upon the hearing of an appeal from the Court of Session in Scotland, may be cited as applicable to all cases, English as well as Scotch. In that case, it was held, that though an appeal for costs only will not lie, when costs are in the discretion of the Court, yet, where the Court is directed, by an Act of Parliament, to give costs, it is a proper subject of appeal, if they are not given according to the requisition of the Act. The above instances form the only exception! to the general rule of the Court, that there can be no rehearing or appeal for costs. This rule is so strictly adhered to that the Court will not permit it to be evaded, by coupling the appeal for costs with another ground of appeal, which is unfounded, for the mere purpose of giving colour to the appeal for costs. Thus, where the ground of the rehearing was, that a defendant, charged by the decree with a sum of money, ought also to have been charged with interest and costs, the Court was of opinion that the decree was correct as to interest, which ought not to have been given ; but that the decree was wrong in not charging the defendant with the costs ; and as the claim of interest was unfounded, the costs were the only thing in question : the decree was therefore affirmed, on the ground that a rehearing does not lie for costs. ^ The right of appeal from Chancery is confined to orders or decrees made in a cause pending between parties ; where, therefore, an appeal was made to the Court of Error and Appeal from an order directing the taxation of a solicitor's bill against his client in a particular mode, the Court dissmissed the appeal with costs.* 1 Tod V. Tod, 1 Bligh, N. S, 639 ; and see Rt Qregsan, 13 W. K. 193, L.JJ. 2 WiUiams v. Beynon, Beaines ou Coats, App. No. 10 ; see also Wwdman v. Kent, 1 Bro. C. C 140. 3 Re Freeman Cragie ie Proudfoot, 2 B. & A B. 109. 1562 GENERALLY. It must not, however, be assumed, from the case last quoted, that, in all cases where the appeal for costs is coupled with other groimds of appeal, the Court will, if it affirms the decree upon the other grounds, refuse to interfere upon the question of costs, if it considers the decision below upon that point to ha.ve been wrong : on the contrary, many cases have occm-red in which decrees have been varied as to costs, though afSrmed on every other point.^ The rule, as to this, is very distinctly laid down by Lord Lyndhurst, in Attorney-General v. Butcher,'^ where his Lordship says : "If a party appeals, having a substantial ground of appeal, and a fair question to agitate, and brings in the question of costs along with it, he may succeed with respect to the costs, though he does not succeed in the substantial ground of appeal; but if a point is brought forward as a ground of appeal, which, on the slighest con- sideration, appears to have no substance, it would be too much to vary the decree as to costs. A point is not to be put forward as a ground of appeal, merely for the purpose of covering an appeal on the question of costs." A party will not be allowed to appeal piecemeal : that is, he can- not appeal from part of a decree by one petition, and afterwards appeal from another part, by another petition. The rule is, that if a party appeals from a part of a decree, he admits the remainder to be correct.* An order for a rehearing or an appeal does not stop or hinder any proceedings on the decree or order appealed from, unless by special order of the Court ; but the person in possession of any decree or order is at liberty to proceed thereon, as if no appeal or rehearing had been granted.* Therefore, if a bill is dismissed with costs, the defendant may, notwithstanding an appeal, proceed to recover his costs.^ So, also, it has been held, that the circumstance of an appeal depending, is not a reason against the plaintiff filing a supplemental bill for the purpose of carrying it into effect.* It 1 Jenour v. Jenowr, 10 Ves. 662, 673 ; Pitt v. Page, 1 Bro. P. C. ed. Toml. 1 ; Squire v. Pershall, lb. 396 ; Wekett v. Baby, 2 *. 386 ; Magvire v. Maddin, ib. 393 ; Lewis v. Smith, 1 MoN. & G. 417, 421 ; Beynell v. Sprye, 1 De G. M, & G. 660, 688 ; Power v. Reeves, 10 H. L. Ca. 646. 2 4 Euss. 180. 3 Norbury v. Meade, 3 Bligh, 261 ; and see Parker v. Morrell, 2 Phill. 453, 461. 4 See Gvyynn v. Lethbridge, 14 Ves. 686 ; Waldo v. Caley, 16 Ves. 206, 212, 216 ; Willan v. Willan, ib. 216 ; Seton, 1157 ; see also Wood v. Farthing, 8 W. R. 425, L. C. 5 Tysort v. Cox, 3 Madd. 278 ; Dunster y. Mit/ord, cited 3 Madd. 278; Archer ». Hudson, 8 Beav. 321 ; Bainbrigge v. Baddeley, 10 Beav. 35. 6 Woodward v. V/ooiward, 1 Dick. 33. EEHEARINGS AJfD APPEALS. 1563 is, also, a general rule, that a party does not lose the right of apeal, by acting on an order.^ The Court, however, will, in some cases, upon special applica- tion of the appellant,^ suspend the proceedings under a decree or order pending a rehearing or appeal. Thus, it has been held, that although a part}'' may proceed to recover his costs, the Court will, when the appeal is lodged before any step taken, order the pro- ceedings to be suspended.^ Similar applications have, however, been refused."* The Courts, however, are very unwilling to suspend the execu- tion of decrees ; and will not do so, except in cases where there is danger of the object of the appeal being defeated, before the appeal can be heard. Where that is the case, the Court will suspend the execution of a decree or order, pending an appeal : thus, where the object of a demurrer is to take the opinion of the Court upon .the liability of a party to make the discovery required by the bill, the Court will suspend proceedings to enforce an answer, pending the appeal from an order overruling the demurrer.^ So, also, where there would be danger of irreparable mischief.® In cases of injunction, for instance, and, still more, of orders dis- solving injunctions, an appeal ought almost always to be per- mitted to stay execution.'' Upon this ground, likewise, where the Court has directed the sale of property, it will suspend the sale f or where property of a perishable nature is ordered to be delivered up, it will direct security to be given for the amount of the pro- perty.^ And so, where specific performance of an agreement for a sale has been decreed, it will suspend the execution of the con- veyance till [after the appeal : although it will not suspend the other proceedings in Chambers.^" Where, also, a bill for specific 1 Mastenncin v. Price, 1 C. P. Coop. t. Cott. 358, and cases referred to, ib. 360, et scq., particularly . White V. Lisle, 3 Swanst. 342 ; and Brophy v. Holmes, 2 Moll. 1 ; and see Sutlin v. Masters, 2 Phill, 290 ; Parker v. Morrell, 2Phill. 463, 462. 2 Rowley v. Adams, 9 Beav. 348 ; Smith v. Earl of Effingham, 11 Beav. 82, 86. 3 Dunster v. Mitford, cited 19 Ves. 447 ; and see Roberts v. Totty, 19 Ves. 446 ; see also Meade v. Horbury, 4 Pri. 322. 4 Roberts v. Totty, 19 Ves. 446 ; Herrimj v. Clobenj, 12 Sim. 410, 412; Pinkett v. Wright, 4 Hare, 160. 5 Wood V. Milner, 1 J. & W 636 ; Eirig of Spain v. Macliado, i Kuss. 660 ; see, however, the judg- ment of Lord Lyndhurst, in Qareias v. Ricardo, 1 Phill. 498 ; and see S. C. 14 Sim. 628 ; Wal- burn V. Ingilby, 1 M. k K. 61, 79, 81. 6 See Wood v. Orifith, 19 Ves. 660 ; Way v. J^ay, 18 Ves. 462. 7 Walburn v. Ingilby, 1 M. & K. 61, 84 ; but see Galloway v. Mayor of London, 11 Jur. N. S. 637 : 13 W. R. 933, L.JJ. 8 Nerot Y. Bumand, 2 Russ. 56 ; Rowley v. Adams, 9 Beav. 348. 9 Nerot v. Bumand, ubi sup. 10 Gioynn v. Lethbridge, 14 Ves. 585. 1564 GENERALLY. performance of an agreement for a lease had been dismissed, an action of ejectment was stayed on terms during the pendency of an appeal to the House of Lords.-' It seems, however, that it is the duty of the Court to exercise its discretion according to the cir- cumstances of each particular case ; and that no general rule can be laid down upon the subject.^ Where a bill seeking an injunction has been dismissed at the hearing, the Court of Chancery has no jurisdiction to make any order binding on the defendant, during the pendency of the plain- tiff's appeal to the House of Lords ; and if the plaintiff intends to appeal to that House, he should apply to have the order dismissing the bill so framed as to maintain the jurisdiction of the Court, pending the appeal.^ Although the effect of an order was to remove a stop placed on a large sum of money, which had boen impounded in the Court of Common Pleas, and to enable the defendant to obtain uncontrolled possession of the fund. Lord Brougham refused to suspend . the operation of the order till the hearing of the appeal.^ In comment- ing on that decision, in a later case,^ his Lordship observed, that, if the application was granted, it would really amount to deciding the matter the other way. " It would be all which the party opposing had contented for : it would give him the very stop upon the fund for which he had in vain been struggling, and expose his adversary to the delay against which he had successfully striven : it would be a reversal of the decision, under the form of staying execution." The Court, also, has refused to suspend the distribution of a fund by a trustee for charitable purposes, pending an appeal, unless there is something, as to pecuniary means, in the situation of the party who has to make the distribution, which authorises an infer- ence that, if he should thereafter be found to have made a wrong 1 Price V. Salushury, H W. E. 1014, M. R. 2 Mayor, &c., of Gloucester t. Wood, 3 Hare, 131, 163 ; 1 PhUl. 493, 496 ; see also McGregor v. Top- ham, i Hare, 162 ; Attorney-Oeneral v. Monro, 12 Jur. 318, L. C. ; Prendergast v. Luihington, ib. 386, L. C. ; Swift v Grazebrook, 3 MeN. & G. 6 : Stainton v. Chadwick, to. 343 ; Portarling- ton V. Damer, 11 W. R 869, V. C. K.; 12 *. 391, L. C. ; Fitich v. Shaw, 20 Beav. 655 ; Bauer t. Mitford, 9 W. R. 136, V. C. K. ; Lord v, Colvin, 1 Dr. & Sm. 476 ; De Mattot v. Qiison, 1 J. * H. 79, 80. 3 Galloway v. Mayor, Jcc, of London, uii sup.; and see Oddie v. Woodford, 3 M A C. 684, 6J6. 4 King of Spain v. Machado, cited 1 M. & K. 86, n. 6 Walburn v. Ingilby, IM. & K. 61, 84. REHEARINGS AND APPEALS. 1565 distribution, he would not be able to furnish the means of setting it right. ^ So, also, where a legacy was ordered to be paid out of Court, and the decree was appealed from, the Court allowed it to be paid out, notwithstanding the appeal.^ Where, however, the circumstances make it expedient, the Court may require a party entitled to receive a sum of money or costs, to give security for the payment, if the decree should be reversed. In like manner, where a decree was obtained by an equitable mortgagee, for the payment of principal, interest, and costs, within a fixed time, in default of which the estate was to be sold, the Court refused to suspend the execution of the decree ; but gave six months, on the defendant's bringing the money into Court, con- senting to a receiver, and paying the interest aud costs : the plain- tiff undertaking to repay, if the decree should be reversed.' The Court will never suspend proceedings under the decree, on the mere ground that, if they are prosecuted, the parties will, if the decree is reversed, be put to unnecessary expense.* Thus, it is not the habit of the Court to suspend the taking of an account.' Nor will it suspend the proceedings under a decree directing the specific performance of a contract : at least, it will not go further than to direct the execution of the conveyance to be stayed.* « Rehearings and Appeals in the Court of Chancery. Until recently in England rehearings in the Court of Chancery were, necessarily, either before the same Judge, or before the Lord Chancellor ; but now, the Lord Chancellor, and the Lords Justices of the Court of Appeal in Chancery, constitute the Appellate Court.^ It is not, however, necessary that the Lord Chancellor should sit together with the Lords Justices ; but all the jurisdiction, 1 Waldo V, Caley,16 Ves.206, 215. 2 Way V. Foy, 18 Ves. 452 ; and aee SuUef. v. Lord Lowther, 2 Hare, 438 ; Swift v. Grazebroot Z McN. & G. 6 ; Oibbs v. Daniel, 9 Jur. N. S. 632 ; 11 W. R. 663, L. J. J. ; Taylor t. Midland Railway Company f 20 Beav. 219 ; Monypenny v. Sionypenny, 8 W. R. 430, V. C. W. ; Ralli t. Universal Marine A ssurance Company, 10 W. R. 327, L. J. J. ; Lord v. Colvin, 1 Dr. & Sm. 475; Hackintoih V. Great Western Railway Company, 11 W. R. 1029, L. J. 3 Monkhouse v. Corporation of Bedford, 17 Ves. 380. 4 The appellant, however, upon a petition of rehearing, is always required to grive an undertaking to pay such costs as the Court shall award, in respect of any proceedings had since the decree or order. Price v. Dewhurst, 4 M & C. 282 ; Seton, 1158 : and see Corporation of Gloucester t. Wood 1 Phil. 493, 497. 6 Jierot T. Bumand, 2 Russ. 66, 68. 6 Ovynne t. Lethbridge, 14 Vet. 685. 7 14 & 15 vie. c. 88, 3. 1. 1566 IN THE COURT OF CHANCEEY. powers, and authorities of the Court of Appeal may be exercised, either by one only of the Lords Justices and the Lord Chancellor, sitting together, or by both Lords Justices sitting apart from the Lord Chancellor, either in his absence or during the same time as he is sitting ; and the Lord Chancellor may also, by himseK, exercise all the jurisdiction, powers, and authorities he formerly had.^ Since the creation of this Court, appeals are usually marked for rehearings before the Lords Justices : unless appointed to be heard before the Lord Chancellor or the full Court.^ An appeal lies from the decision of ,this Court to the House of Lords, in the cases in which the like decision of the Lord Chan- cellor would have been subject to appeal.^ The decision of the majority of the Judges of the Court of Appeal is taken and deemed to be the decision of the Court ; and if the Judges of the Court are equally divided in opinion, the decree or order appealed from is taken and deemed to be affirmed. * It appears that, when once a case has been decided by the Court of Appeal, however constituted, it wiU not be reheard before the same Court in another form ; but, when no decision has been given, a rehearing before the the fuU Court may be obtained.^ In this Province, rehearings are before the fuU Court ; and in,cer- tain cases an appeal lies to the " Court of Error and Appeal," es- tablished by ch. 13 of Con. Stat, of U. C. If a. party is dissatisfied with a decree or order, the proper course where it cannot be rectified in the manner already pointed out, is to rehear the cause. This he may do, whether the decree or order is made upon the hearing of the cause, or of a motion for decree, or of a demurrer or plea, or upon further consideration, or upon excep- tions. A decretal order cannot, in fact, be discharged in any other manner ; and where an attempt was made, by motion, to discharge 1 11 & 15 Vic. 0. 3, s. 1. The Court of Appeal may call to its assistance, if necessary, one or more of the Common Law Judges : ib. s. 8. 2 Seton, 1153. The sitting of the Court of Appeal are reffulated by the Lord Chancellor : see 14/15. Vic. c. 83, s. 12, 3 Ihid, s. 10. 4 Ibid, s. 9. 5 Blann T. BeU, 2 De G. M. & Q. 776, 788 : 16 Jur. 1103, 1105. The Court has no jurisdiction to correct an error in an order of the Lord Chancellor's : Attorney-General v. Mayor, &c., of Exeter, 22 L. J. Ch. 418, L. JJ. KEHEAEINGS AND APPEALS. 1567 an order, pronounced by consent upon further directions, on the ground that the party had been surprised. Lord Thurlow refused to make the order upon motion : although he appeared to think, that where anything is inserted in a decretal order, as by consent, to which the party has not consented, there must be some way of rec- tifying it, namely, by bill of review ; but that it cannot be done by motion.^ The same rule, also, prevails where the order is made upon a peti- tion .-^ in which case, the proper course is to rehear, in the same manner as upon a decree or decretal order. Orders made upon motion are not proper subjects for a rehearing ; but may be varied or discharged, upon application, by motion, either to the Judge who made the order, or to the Court of Appeal. A rehearing ought never to be resorted to, where the defect, in the decree or order, is one which can be remedied by any of the methods before pointed out ; and, as a general rule, it cannot be obtained till the decree or order has been passed and entered. Thus, in Robinson v. Taylor,^ the Court refused to allow a cause to be re-argued, upon a petition to alter the minutes ; and the same rule was laid down, by Lord Eldon, in Taylor v. Popham,^ where an application was made, whilst the decree was in minutes, to rehear a cause heard by Lord Erskine. A rehearing can only take place for the purpose of altering the decree upon grounds which existed at the time when the decree was pronounced. Where, therefore, the object, is not to correct the de- cree, but to remedy a grievance consequent upon it, resulting from circumstances ex post facto, and not making part of the case as it originally stood, a rehearing will not be permitted : in such a case, a new bill must be filed.^ Where the objection to a decree is upon matter of law apparent, or a mistake in law, to be collected from all the pleadings and evi- dence, the decree not being signed and enrolled, it is the subject of a 1 Anon. 1 Vea. J. 93. 2 Bishop V. Willi)!, 2 Ves. S. 113. 3 1 Ves. J. 44. 4 15 Ves. 72 ; and see Commissioners ofChariCable Donatioris v. Hunter, 1 Dr. & War. 544 ; see also Be Bisca Coal Company, 8 Jur, N. S. 900 : 10 W. R. 701, L. 0. 5 Bowyer v. Bright, 13 Pri. 316 ; Home v. Barton, 8 De G. M & G. 687 : 2 Jur. N. S. 1032. 1568 IN THE COURT OF CHANCEET. rehearing ; and there is no occasion for a bill in the nature of a bill of review ; unless a supplemental bill is also necessary, to introduce new facts : in which ease, the cause will come on to be heard upon the matter of that supplemental bill, together with the hearing of the original cause.'^ It will be observed that supplemental bills are still in use in England, but our Order 6 abolishes supplemental bills ; original bills in the nature of supplemental bills ; and bills of revivor and supplement; and Order 337 and subsequent orders provide a simple mode of securing the objects which are gained by the English mode tjf proceeding by bill. The English cases are, however, applicable so far as principles are concerned : — it is only in the mode of work- ing out these principles that the difference occurs between the pro- ceedings in England and those in this Province. Our Order 322 provides that — "A rehearing may be had, as well after as before enrolment ; but no second reheaiing is to be had without leave of the Court granted upon special motion for the purpose." This order altei's our former and the present English practice, for by it there can be no reheaiing of a decree or order of Court after it has been enrolled. The Court seldom allows more than one rehearing, whether the second hearing was before the Judge who heard the cause originally, or before the Lord Chancelloi- or Lords- Justices by way of appeal It must not, however, be understood, that the power of the Court to direct a rehearing is limited to one only : the practice of doing so is only a general, not an inflexible rule ;^ and there are many cases in the books in which it has been departed from ;^ and it seems that there is no positive restriction with regard to the number of re- hearings ; that the granting or refusing of a rehearing is in the dis- cretion of the Court.* This, however, is not the case, after a cause 1 Perry V. Phelips, 17 Vee. 173, 178 ; Head v. Oodlee, Johns. 536, 579. 2 Per Lord Eldon, in Waldo v. Caley, Hi Ves 214 ; see also Gilb. For. Rom. 183. 3 ^uelv. RoUmon, I Vem. 90, n4, n. , liiitmi v. Eyton, 4 Bro. P. C ed. Tonll. liO; Ladji Fal. land v. Lord CiieW!/, o ib. 47G; Ilfiwrl v Homely 1 Dick. 421!; Oiiierod v. Ilardinan, 5 Vc-!. 72"-', 72j ■. Bro-mi V. IJ'tigx, 8 Vcs. 5G1 ; 50l; ; ?i'«;,; India Compamj v. Boddam, 13 Yes. 421 ; Macadusk v. Townsend, lij Ves. 330 331 ; Bku-lrbuniv. Jepson, 2 \. k, B. 369 ; Deernurst v. Duke of St. Albaru, 2 R. & M. 702, 706 ; Fuller v. Willie, U Jur. 23 I, L, C. ; Lai/bery v. Brookinr/. 7 De i;..\l. & Q. 673 ; 2 Jur. N. S. 76. 4 Mills V. Banka, 3 P. Wms. 8. REHEAEINGS AND APPEALS. 1569 has been already reheard before the appellate tribunal : in such a case, a second rehearing will not be permitted, unless leave has been previously granted by the appellate Judge, upon a special ap- plication for that purpose ;^ which may be made ex 'parU? This rule applies, whether the decree upon the first rehearing had the eifect of overruling, or of affirming the original decision ; and is now so well recognised, that, in Moss v. Baldock^ Lord Lyndhurst directed a petition of appeal to be taken off the file for irregularity because it had been presented witlibut special leave, alter one re- hearing. Order 324 provides that — " Re-hearings of causes are to be within six months after the decree, or decretal order has been passed and entered ; and applications in the nature of re-hearings to discharge or vary orders made in Court, not being decretal orders, are to be within four months from the passing and entering of the same; or within such further time as, the Court or a judge may allow upon special grounds therefor, shown to the satisfaction of the Court or judge." In England, five years are allowed after the decree to bring the cause to a re-hearing, but the Court may, where it appears just and expedient, enlarge that period. Thus a re-hearing was permitted after the expiration of the five years, where a declaration which was prejudicial to the appellant, and unnecessary for the determination of the question in the cause had been inserted in the decree ;* and where there was a manifest error in the decree, and the fund was still in Court, the Court allowed a re-hearing, although thirty years had elapsed since the decree was pronounced.* The application for leave was made ex parte.^ This Court will, by analogy to cases of appeal, in a proper case grant leave upon terms to re-hear a cause, though the usual time therefor has elapsed.' Leave to re-hear was given when the time for re-hearing expired a few days before re- hearing term, and the delay had not really affected the progress of 1 Byjield v. Provis. 3 M. & C. 437 ; Deerhuret v. Duke of St. A Ibans, 2 E. A; M. 702. 2 JBx parte Bcsley, 3 McN. & G. 287. 296. 3 1 Phil. 118. 4 Walmsley v. Foxhall, 1 De G. J. & S. 451. 6 Brmidon v. Brandon, 7 De G. M. & G. Z%r> ; 2 Jur. N. S. 981 ; see also Mills v. Banks, 3 P. M'ms. 1, 2; Scarisbrick v. Lord, Skelmersdate, 4 Y. & C Ex. 78, 106; Kelly v. Lennon, 1 Jo. & Lat. 305, 33S-; Ckoynne v. Edwards, 9 Beav. 22, 34 ; Toimiley v. Bedwall, 15 Beav. 78 : Turner v. Turner, 2 De G. M. & G 28, 85 ; 15 Jur. 711. 6 Brandon v. Brandon, ubi sup. ; and see Starrs v. Benbow, 1 W. E. 116, L. 0. & L. JJ. 7 Winters t. Kingston, P. B. Society, 1 Cham, Eep. 214. 1570 IN THE COURT OF CHANCERY. the cause, there having been no sittings to re-hear causes in the interval.^ Order 325 provides that — " Where a decree or order is not passed and entered, within one month from the day judgment is pro- nounced, the time allowed for re-hearing the cause, or varying or discharging the order is to begin to run at the expiration of the month." It will be observed that the English cases speak of a petition for re-hearing, but this is done away with in this Province ; for order 326 provides that — " No petition for re-hearing is to be presented ; but a party desiring to re-hear a cause is, after paying into Court a deposit of forty dollars, to set the cause down for re-hearing and serve notice thereof" And order 327 that — " Where a party seeks to vary part only of an order, he may, in the notice of re-hearing, state the part of the order which he seeks to vary." A motion to rehear a cause after the time limited for rehearing has expired may be made ex parte.^ A motion for leave to rehear, notwithstanding more than six months will have elapsed from the date of the decree before the then next rehearing term, was granted where it appeared that judgment had been given but a short time previous to the last rehearing term.^ A vacancy occurring on the Bench was deemed a sufficient reason for not rehearing at the first rehearing term after the decree drawn up ; and the time was, on application, extended.* Where it was shown that a decree, not enrolled, which had been pronounced in 1855, was clearly erroneous, an order was made for rehearing the cause notwithstanding the lapse of time.^ A rehearing may be obtained, after the decree has been carried into execution ; and we have seen that after the trial of an issue, the Court has permitted a petition, for a rehearing of the order directing an issue, to come on for hearing, at the same time as a motion for a new trial of the issue.'' So, also, where the Court, by 1 Steveiuon v. Nichol, 2 Cham. Rep. 183. 2 Dickson V. Bumham, 2 Cham. Rep. 436. 3 Fleming v. Duncan, 3 Cham. Rep. 63. 4 Romanes v. Fraser, 3 Cham. Rep. 63. 6 Carrmron v. Wol/ Island Canal Company, 3 Cham. Rep. 64. 6 White V Lisle 3 Swanst. 342, 351 ; Butlin v. Masters, 2 Phill. 290 : Parker v. MorreU, ib. 453. REHKARINGS AND APPEALS. 1571 clecree, directed the bill to lie retained, with liberty to the plaintiff to bring an action, which he did, and failed, the Court permitted the cause to be reheard : although it was objected, that the plaintiff having acted under the decree himself, by bringing the action, could not be heard to dispute the propriety of it.' But where a decree directs inquiries, the Court will not be disposed to reverse it, after the inquiries have been made. Order 328 provides that — " A defendant waiving all objections to the order to take the bill p'o confesso, and submitting to pay such costs an the Court dii'ects, may have the cause reheard upon the merits stated in the bill." After a cause had been heard and reheard before Jameson, V.C, and again re-heard before this Court, a third re-hearing was ordered under the peculiar circumstances. Only one rehearing will be per- mitted, as of course.^ Where a decere is sought to be changed from a sale to a foreclosure, the cause must be set down to be reheard, and notice served on the defendant, and that, too, although the bill has been taken piv confesso} Where a cause is reheard by some of several defendants, and the Court affirms tlie decree as against them the other defendants who did not rehear cannot obtain any relief although they appear at the reheaiing and ask it.* The deposit on was divided under special circumstances.'^ Rehearings orapplications to discharge orders made in Chambers must be set down for a day, which falls within the periods prescribed by the Orders of 9th May, 1862, and 20th Feb., 1865, and it is not sufficient that the case should be set down, and the notice thereof served within such periods.'' In a suit for the administration of a debtor's estate, under an assignment for the benefit of ci'editors, creditors who come in under a decree may rehear the cause : and this is the proper course where the alterations is such as might be effected in that way by a party to the cause.'' After carrying the decree into the Mas- ter's office the plaintiff was proceeding to take the accounts directed thereby. (See 6 Gra.nt, 600). The defendant pre- 1 Brophy v. Holmes, 2 Moll. 1. 2 Coolc Y. Walsh, 2 Grant, 625. 3 MoLelan v. Jacobs, 9 Grant, .'>0. 4 Black, V. Blade, 9 Grant, 403. 6 The G. W. Railway v. Hesjardtn.^ Canal Co., 9 Grant 52:>. 6 He D. G. Miller, 12 Gram, 73. 7 Mulholland v. Hamilton, 12 Grant, 413. 75 1572 1 IN THE COURT OF CHANCERY. sented a petition of re hearing which was ordered, and the cause set down in the usual manner; whereupon a motion was made to stay further proceedings in the Master's office until after the cause had been re heard. Spragge, V.C., refused to stay the taking of the account, but intimated that no report need be signed, the defendant using due diligence to have the cause' re heard.'^ A decree was pronounced setting aside a conveyance, and the defendant being dis- satisfied therewith, obtained a re hearing of the cause. Upon the re hearing, the decree originally pronounced was affirmed with costs and a further direction made that the defendant should execute a conveyance to the plaintiff.^ A j^arty is entitled to have a cause re- heard before this Court, which has already been heard and re heard by the Vice-Chancellor alone. But only one rehearing will be per- mitted, as of course.^ Where a decree of foreclosure against an infant defendant did not reserve a day after his attaining 21 to show cause and upon his attaining his majority the defendant applied upon affidavits to put in a new answer, and raise a fresh defence. Held, (Blake, C, absente), that the relief could not be obtained without a rehearing of the cause, and the motion was therefore refused with costs.* Upon the reheaiing of a cause, where a decree for foreclo- sure did not reserve a day to the infant : Held, (Blake, C, dissen- tiente), that in decrees of foreclosure against infant defendants, a day to show cause after obtaining twenty-one must be reserved to the defendants.' Order 323 provides that, " Rehearings of causes, and applications in the nature of rehearings to discharge or vary orders made in Court, or in Chambers by a judge, are to be in rehearing term only unless some special day be appointed by the judges for the pur- pose." And Order 413, that " There are to be three rehearing terms in each year, commencing respectively as follows : " I. The thii-d Thursday in February ; "II. The last Thursday in August ; " III. The first Thursday in December. 1 Campbell v. Cainphell, 1 Cham. Rep. 30. 2 Harkin v. Rabidon, 7 Grant, 243 .3 Cook V, Walsh, 1 Grant, 209. 4 Mair v. Kerr, 2 Grant, 223. 6 Jbiil. Affirmed on appeal 26 February, 18.')2. EEHEARINGS AND APPEALS. 157S Where an a,ppeal is dismissed without costs, the deposit will be returned, unless the Court makes a. special order to the contrary.^ An appeal may be allowed in forma pnnperif^,^ and without making any deposit.^ A married woman appealing in formn pauperh prosecutes the appeal, without a next friend.'' A married woman allowed to defend an appeal in forma p Jur. N. S. 264 : 7 W. R. Wl,V. C; Uardy -r. Hull. 14 Sim. 21 ; Foster v. Foster, 16 Sim. 637; Ashee v. .iSnipley, 6 Madd. 296; Crowfoot v. Mander, 9 .siiii. :?9H ; Eddington v. Banham, 2 Coll. 619. 2 Under Order 56. 3 Bli^b- v. Putman, 29 Beav, 20 : and see Seton. 1178— liai. 4 A nte, and see Liycester v. Xoms. 10 Jur. N. S. 1173 : 13 W. R. 201, V. C. K., where the e.i ate beini; insolvent the personal representatives of a decea.sed plaintilf . wlio had been beneficially interested were dispensed with. 5 ITre v Lord 2 Dr & Sm. 263 : 10 Jur. N. S. 1042 ; and see Smith v. Horsfall, 24 Beav. 331 ; Ley- tester v. y orris, 10 Our. N. S. 1173 . m V'. T!. 201, V.C.K ; but see Hinde v. Morton, 8 H. & M. 368. 6 Hinde v. Morton, 2 H. iSi il. 36& . 7 WUson V. Whateley, 1 J. & H. 331. S Pedder v. Prdder, 5 Jur. N. S. 1146, M. R. Jatlctm r. Daveriport, 29 Beav. 212 : 7 Jur. N. S. 1224. 1590 RRVIVOE AND SUPPLEMENT. The Court will not, in general, permit a suit to be revived, for the pui-pose of deciding the question of costs only •} the general rule being, that if a party dies before taxation of costs, there can be no revivor, in respect of costs only, against his personal repre- sentatives.^ This rule does not, of course, apply where anything else is directed by the decree, which remains unexecuted. " If, by the decree," says Lord Chief Baron Gilbert, "the party is to pay a sum of money, or if a duty is decreed, if he is to deliver over a bond, or deed, or writings, or if anything is annexed to the decree besides costs, the suit may be revived."' The rule applies only to costs which remain untaxed, at the time when the abatement takes place. Where the costs have been actually taxed, and the Master's certificate signed, there may be a revivor for them :* because, when taxed, they become a judgment debt; and as at Law a judgment may be revived, so it may in Equity.* And where the plaintiff's solicitor, at the request of the defendant's solicitor, had .agreed to postpone the taxation of costs, decreed to be paid to the plaintiff, on an undertaking that the plaintiff should not be prejudiced thereby, and the plaintiff died after the costs were taxed, but before the Master's certificate had been signed, his representatives were allowed to revive the suiit : upon the ground that the undertaking amounted to an agreement that the suit should be revived.^ But the circumstances of that case were very special, and cannot be considered as impugning the general rule. A distinction has been attempted to be made, between an abate- ment by the death of the party to pay the costs, and an abatement by the death of the party to receive them : holding, in the latter case, that there may be a revivor for costs f but, in Jupp v. Geering,^ Sir John Leach, V.C, held, on demurrer, that if the 1 Ld. Red. 202 ; OUb. For. Rom. 181. 2 Morgans. Scudamore, 2 Ves. J. 313, 316 ; Andrews v, Lockwood, IS Sim. 163, 166: 10 Jiir. 277 ; but see S. C 2 Phil. 398 , 11 Jur. 950 ; Bowyerw. Beamish, 2 Jo, & Lat. 228 ; MaKnsv, Greenway, 7 Hare 391 ; Robertson v. Southgate, ib, 13 Jur. 633 ; UmpUhy v. Waveney Valley Railway Company, 1 J. & H. 254 ; Beames on Costs, 131, and tlie cases cited, ib, n. (b) ; Morgan iX- Davey, 384, et, seq, 3 Gilb. For. Eom. 181 ; Johtison v. Peck, 2 Ves. S. 405. 4 Lowten v. Corporation of Colchester, 2 Mer. 113, 114 ; Beames on Costs, 132, and tlio cases cited, ib, n. (k). 5 Ibid, ; EdgUl v Browe, 1 Dick. 62 ; Blower v. Morrets, 3 Atli. 772 ; Loader v. Price, 2 Fowler's Ex. Pr. 309. 6 Tucker v. Wilkins, 7 Sim. 349. 7 Beames on Costs ; and see Morgan v. Scudamore, 2 Yes, J. 313 : 3 Ves. 195. 8 S Madd. 375. REVIVOR AND SUPPLEMENT. 1591 defendant dies before the costs of a bill dismissed are taxed, a bill of revivor by his representatives for costs cannot be sustained. The only exceptions to the general rule above laid down, that there can be no revivor for costs only, which have not been taxed before the abatement happened, are : where they are directed to be paid out of a particular estate or fund ;^ or are decreed against an executor, out of assets: in which cases, they are considered as a charge or lien upon the estate, and not upon the person and, therefore, do not come within the principle of Courts of Law, (on analogy to which the rule is founded,) that " actio personalis moritur cum persona."^ The fact that the bill prays specifically for costs, does not take the case out of the general rule.* Where one of several defendants, against whom the bill had been dismissed with costs, to be taxed and paid by the plaintiff, died, it was held that the survivors were entitled to proceed with the taxation, without reviving the suit, where the surviving and deceased defendants had carried in a joint bill of costs ;^ but where the deceased defendant appeared separately, the Coui't refused to direct the taxation to proceed without a revivor.^ Where the interest of the plaintiff wholly determines on his death, the suit cannot, on that event happening, be revived ; but a new bill must be filed -J in which new suit, the benefit of the proceed- ings in the former suit may, if prayed for, be obtained. Where a defendant, whose interest ceases on that event, dies, the suit may, it seems, be revived against the person who there- upon becomes entitled to his interest. Thus, where a defendant) a tenant in tail, died, the suit was revived by the common order of revivor and supplement, against the next tenant in tail.^ Where in a suit by churchwardens for securing legacies given to the parish, some of the plaintiffs ceased to fill the offiee of church- 1 Blower v. Morretts, SAtk. 772 ; Kemp v. Macknll, ib. 812 : 2 Ves. S. SSO ■,Johmon >■. Leake, cited 3 Atk. 773 ; Jenowr v. Jetwur, 10 Ves. 662, 572« 2 Bea "fis on Costs, 132. 3 Broom's Maxims, 869, et seq. 4 Umpleby v. Waveney Valley Railway Company, 1 J. & H. 254. 5 Hunter v. Daniel, 7 Hare 281. 6 Robertson v. Southgate, ib. 109 : 13 Jur. 533 ; Malins v. Greenway, 7 Hare, 391. 7 ]Vatfs V. Watts, Johns. 631 ; and see Wordsworth v. Parldns, 12 W. E. 120 V. 0. K. a CressireU v. Bateman, 6 W. R. 206, 220, V. C. K., where the abatement occurred through tlie death of a defendant : see Keg, Lib. 1857, A. 424 ; and see Lloyd, v. Jnhiies, Ves. 68 ; Ld. Red. 67, 71. 1592 REVIVOR AND SUPPLEMENT. warden, an order was made by the Mastei- of the Rolls, directing the suit to be carried on, in the names of such of the plaintiffs as continued in office, and the successors of the others.^ Any person served with an order of revivor, or a supplemental order, may appl3' to the Court, to discharge the order, within fourteen days after service ; or, if he is under disability, (other than coverture,) within fourteen days after a guardian ad litem has been appointed for him.^ The order may be discharged on any ground which' would havi' been open to the applicant on a hill of revivor or supplemental bill, stating the previous jsroceedings in the, suit, and the alleged changi: or transmission of interst or liability, and praying the usual relief consequent thereon.^ The order will, therefore, be discharged : if there is no sufficient ground for reviving the suit,* either by or against the person by or against whom it is sought to be revived,'' or, if the revivor is solely for costs which have not been taxed, unless the case comes within any of the exceptions to the general rule above pointed out.^ The defendants, though aware that A. had no interest in the matters in question made him a party plaintiff by order of revivor obtained on praecipe. A. was then and for some time afterwards underthe belief that he had been made a party properly ; and even after he had found out that he had been made a party improperly, he did not apply to have the order of revivor set aside as against him till he found that he was prejudiced by it. He then petitioned to have the order set saide as against him ; and the Court granted the application, on the terms of his paying the costs of the petition, and any costs that had been incurred by his having been made a party.'' AAThere, after a defendant's lands were seized imder a writ of sequestration, the defendant died intestate, it was held that his widow was not a proper party to the order to revive. A motion to discharge an order to revive caimot, without leave of the Court, be made after fourteen days from the service of the order ; and mere 1 Smith V Creasy, cited Seton, 1167- 2 Ord. 339 340. 3 Order 339. 4 Harris y. Pollard, 3 P. Wms. 348 ; Humphreys v. Iiicledon, 1 Dick. 38 :andsee(lEq. Ca. Ab, 2-4. 5 University College v. Foxcroft, 2 Cliam. Rep. 244 ; Ld. Red, 201. 6 Ante, Umplehyv. Waveney Valley Railway Company, 1 J. & H. 254. 7 .Imith V. Bmrn, 2 Cham. Rep. 230. REVIVOR AND SUPPLEMENT. 1593 service of notice within the fourteen days is not a sufiieieiit com- pliance with Order 339. The notice of motion in such a case need not set forth the previous proceedings.^ A motion before a Judge to set aside an order to revive was held to be too late after the lapse of fourteen days.^ The question, whether the Statute of Limitations is a bar to revivor, has been much discussed. It seems, however, that the Statute applies to suits before decree f but that, after a decree for an account, it is in the discretion of the Court ; and the order of revivor will be discharged, only where there appears to have been negligence or laches on the part of the applicant.* If the party entitled to object to the order of revivor proceeds with the suit, before taking the objection, the objection will be waived.^ Where the abatement is total, that is, where it is caused by the death, bankruptcy, or insolvency, of the plaintiff, or the marriage of a female plaintiff, the cause is completely suspended ; and can- not be proceeded in, until it has been revived, or the defect, caused hy the aba.tement, cured ; and, in general, all orders made pending such abatement, will be considered nugatory, and may be dis- charged ; the same rule also applies, where the abatement has been caused by the death of one or more plaintiffs. Thus, if, pending a total abatement, process of contempt is issued, it is irregular, and may be discharged, on motion, with costs.^ So, also, an order to dismiss a bill for want of prosecution, obtained pending an abatement, is irregular." Although the general rule is as above stated, there are many cases in which the Court will entertain applications, notwithstand- ing that the suit is abated. Thus, a motion may be made, to dis- charge process of contempt issued or executed pending an abate- ment. 1 Harris v. Meyers, 16 Grant, 117. 2 Mcllroy v. Hawlte, 3 Cham. Rep. 66. 3 Ld. Red. 290 ; Hotlingshead's case, 1 P. Wins. 742, 743 : see 2 Sch. * Lef. 6,32 ; Earl of Egrcmont. V. Hamilton, 1 B. & B. 616 ; Perry v. Jenkins, 1 M. & 0, 118, 121 ; Bland v. Davison, 21 Beav. 312. 4 Siggins v. Shaw 2 Dr. & War. 356 ; Ahop v. Bell, 24 Beav. 451, 464 ; and see Parkinson v. Lucas, 28 Beav. 627, 630. 6 Jones V. Powell, 11 Beav. 398. 6 See Qibbs v. Churton, C P. Coop. 496. 7 Sellers v. Dawson, 2 Dick, 73S : S. C. nom. Sellas v. Dawson, 2 Anst. 458, u. ; but see 1 Mer. 365 ; Boddy V. Kent, ib. 361, 365 ; Robinson v. Norton, 10 Reav. 484. 1594 REVIVOR AND SUPPLEMENT. The Court will also, where the right to money in Court is clear under former orders and rejsorts, make an order, for payment of the money out of Court, to the person entitled, without regarding the abatement ;^ for the delivery of deeds and writings, brought into Court, and will, if necessary, direct an inquiry to whom they belong.^ An enrolment of a decree may be made, . notwithstanding an abatement.^ An abatement, although it suspends proceedings in a cause, does not put an end to them : therefore, where process of contempt has been executed, and a defendant is in custody upon it, and afterwards the suit abates, the defendant is not thereby entitled to his discharge out of custody, but he must move that the plaintiff may revive within a limited time, or that the bill may be dis- missed, and he may be discharged. So also, an injunction is not absolutely dissolved by an abatement, but the defendant must, if he wishes to get rid of the injunction, move, on notice, that the plaintiff may revive within a limited time, or that the injunction may be dissolved.* The same observation applies to receivers appointed under an order of the Court : who will not be discharged on an abatement, without an order of the like description. Where an abatement is jiartial : as, where it is caused by the death of a defendant : it prevents those proceedings only by which the interest of the deceased defendant may be affected : for the death of a defendant makes an abatement quoad himself alone ; and therefore, if there is a decree against trustees and their cestui que trust to convey, and the cestui que tru,st dies, the trustees may be compelled to convey, notwithstanding such death.* So also, pending an abatement by the death of a defendant, process of 1 Rtni/ndell v. Currer, 6 Ves. 250 ; see also Beard v. Earlof Powis, 2 Ves. S. 399 ; and see Jouqb v. Williams, C. P. Coop. 488. 2 Wharam v. Bronghtotlj 1 Ves. S. 181, 185 ; and see A ndrews v. Lockivood, 2 Phil. 398 : 11 Jur. 956 ; Alderman v. Bannister, 9 Beav. 616 ; Houghton v. Qodschall, 2 G. P. Coop. t. Cott. 89. 3 Ante. 4 Jones V. Massey, 3 Beav. 295, li. ; Turner v. Cole, ib. ; Brovme v. Warner, i6. 296, n. ; Lee v. Lee, 1 Hare, 617, 622 ; Fisher v. Fisher, 4Harc, 196. This will notapplyto injunctiona made perpetual by decree : see Askew v. Ibivnsend, 2 Dick. 471 ; Oldfield v. Cobbett, 20 Beav. 563. 6 Fifieh V. Lord Winehilsea, 1 Eq. C*. Ab. 2, pi. 7. KEVIVOE AND SUPPLEMENT. 1595 contempt may be issued and executed against the other defendants ; and, we have before seen, that, during such an abatement, the Court will, at the instance of a creditor, take the prosecution of a decree from the plaintiff. ' It has also been held, that the death of a defendant, after hearing but before judgment, does not prevent judgment, nor, in general, the drawing up of the decree ;^ but where, upon a motion to dismiss for want of prosecution, the plaintiff appears and undertakes to set the cause down for hearing within a limited time, in default of which the bill is to stand dismissed, and afterwards the defendant dies, and the time for setting the cause down expires before the suit can be revived, the order dismissing the bill is sus- pended during the abatement. - Where the abatement of a suit is total, an order to revive places the suit, and all the proceedings in it, in precisely the " same plight and condition as the same were in at the time of the abatement"^ and the new plaintiff may take the same proceedings in the cause that the original plaintiff might have done. Thus, the plaintiff in a revived suit may amend the original bill, and issue an attach- ment against the defendant for not answering the amended bill.* So also, the new plaintiff may prosecute process of contempt against the defendant : taking it up where it left off at the abate- ment ; and if process has been issued before the abatement, it will be revived by the order to revive.^ The case is diffei-ent where the abatement is occasioned by the death of the defendant : in such case, the process, being personal, cannot be revived. In general, however, where an abatement is occasioned by the death of a defendant, the order to revive against the representatives of such defendant will place the suit as fully in the same position, with regard to such representatives, as can be done, with reference to the change of the individuals before the Court. 1 Davies v. Davies, Ves. 461; Betsham v. Pcrcival, 2 C. P. Coop. t. Cott. 176: 8 Hare, 167 •,C'ilfin-itoi) V. Lister, 20 Beav. 3S5 : 1 Jur. N. S. 836. 2 Oregaon v. Oswald, 1 Cox. 343, 344. 3 See form of order, Scton, 1164. No. 1 ; Gregson v. Ostmld, 1 Cox, 343. 4 Ld. Red. 78; Philips v. Derhie, 1 Dick. 98. 5 Hyde v. Forster, 1 Dick. 182. 1596 REVIVOR AND SUPPLEMENT. In a foreclosure suit an account of principal and interest had been directed to be taken before the decree was drawn up ; before this was done the defendant died, and an application was now made by the plaintiif to be at liberty to take the usual account, upon the facts stated in the affidavit of the 23laintiff. The decree, it was alleged, would bear date prior to the death of the defendant, and as the bill had been taken pro confesso against the defendant, the account, in the event of his being still alive, would have been pro- ceeded with behind his back, the Orders of 1853 providing that all proceedings after a bill had been taken pro confesso may be taken ex parte. But the Chancellor said " drawing up a decree, which had been previously pronounced, after the death of one of the parties, is a proceeding that would be clearly regular ; but so far as my recollection of the cases goes, I do not think tha.t any authority will be found warranting us in proceeding to take an account after the death of the party who is bound to pay. The point, however, is one of considerable importance to suitors, and perhaps it would be well to take the opinion of the full Court upon it."' If a sole defendant dies before the bill is served upon him, there is no suit in Court : the plaintiff therefore cannot revive ; and if he takeout an order to revive, under such circumstances, it will be discharged with costs. ^ The death of a party to a suit does not always occasion such an abatement as will suspend the proceedings. If the interest of the party dying so determines that it can no longer affect the suit, and no person becomes entitled thereupon to the same interest : which happens in the case of a tenant for life, or a person having a temporary or contingent interest, or an interest defeasible on a contingency : the suit does not so abate as to require any proceed- ing to warrant the prosecution of it against the remaining parties ; but if the party dying be the only plaintiff, or only defendant, there may be necessarily an end of the suit : no subject of litigation remaining.^ If, also, the whole interest of the party dying survives to another party, so that no claim can be made by or against the representa- 1 Galbreaith v. AnnBtronri, 1 Cham. Eep. 33. 2 Wation v. Ham, 1 Cham. Rep. 295. 3 La. Red. 68. REVIVOR AND SUPPLEMENT. 1597 tives of the party dying : as if a bill be filed by, or against, joint - tenants, and one dies : the suit may be continued by or against the survivor, without revivor ;^ and where the suit is by or against trustees or executors, and one dies, not having possessed any of the property in question, or done any act relating to it which may be questioned in the suit, or by or against husband and wife, in right of the wife, and the husband dies under circumstances which admit of no demand by or against his representatives, the pro- ceedings do not abate : although, as we have already seen, the wife is not bound to continue the suit, unless she thinks proper to do so.^ So, if a surviving party can sustain the suit : as in the case of several creditors, plaintiffs on behalf of themselves and other creditors : no revivor is necessary, because the representatives of the deceased plaintiff may come in under tire decree.* Where a creditors' suit had been carried on for twelve years after it had become abated by the plaintiff 's death, an order was made, on motion, to confirm all the proceedings ;* and where at the date of the decree the suit had become abated by the death of a co-plaintiff, an order to revive the suit and carry on the pro- ceedings was made, on his representatives submitting to be bound by the decree.* Where, before decree, a defendant dies, and the plaintiff neglects to revive the suit against his legal representative, the representa- tive may obtain an order on motion, of which notice must be given to the plaintiff, that he revive the suit within a limited time, or that the bill stand dismissed.* Order 344 provides that "Where a suit is defective by means of some imperfection in the bill, and not in consequence of an event arising subsequent to its institution, the Court may at any time 1 Fallowes v. Williamson, 11 Ves. 306, 309 ; Boddy v. Kent, 1 Mer. 361, 364 ; but the case is different in the case of tenants in common : ih. 2 Ld. Red. 59 ; and see ante. 3 Boddy v. Kent, 1 Mer. 361, 3G4 ; Hlnde v. Morton, 2 H. & M. 368 ; see, lioweTCr, Bumcy v. Moronv, 1 S. & S. 358 ; Smith v. Horsfall, 24 Beav. 331. 4 Houston V. Briscoe, 7 W. R. 394, V. C. K. ; and see Lys r. Lee, 4 IJe G. M. & G. 219 : 17 Jui-. 6U7 ; 10 Hare, App. 72 : 17 Jur. -^72. 5 Smith V. Horsfall, ubi sup. ; see also Jebb v. Tugu'cll, 20 Beav. 461 ; Frecmin v. Whitbrcad, 12 \\ . R. 619, V. C. K. 6 Norton v. White, 2 De G. M. & Q. 678 ; Powell v. Powell, ib. n. (b) 1598 REVIVOR AND SUPPLEMENT. permit an amendment of the bill in furtherance of justice, and on such terms as it thinks proper, for the purpose of altering the allegations in the bill, or putting new matter in issue, as -well as for the purpose of adding or striking out the names of parties, or of varying the relief prayed, or praying further relief." And Order 345, that "The order is to be applied for by motion, the notice of which is to state the required amendment ; and to be served upon the parties, or their solicitors, unless dispensed with." Order 346, provides that "Upon the motion the Court must be satisfied, by af&davit or otherwise, of the truth of the proposed amendment, and, of the propriety of permitting it to be made at the particular stage, of the cause, under all the circumstances." And Order 347, that " Upon pronouncing such order for amend- ment, the Court is to give such order as to the future conduct of the suit, in relation to answering such amendments, as also with regard to the evidence taken, or to be taken, and in all other respects, as the circumstances of the case may require." These orders, it will be observed refer only to cases of defect in the suit, not occasioned by an event subsequent to its institution. Provision is, however, made for cases where facts or circumstances have occurred after the filing of the bill. The rule which formerly existed, that a plaintiff ought not to introduce facts, by amendment, which have occurred since the filing of the original bill, has been abolished. Our Order 348, taken from the Imperial Statute 15 & 16 Vic, ch. 86, provides that "Where, in a case not provided for by Order 344, a plaintiff desii-es to state, or put in issue, facts, or circumstances occm-ring after the institution of the suit, if the cause is otherwise in such a state as to allow of an amendment being made in the bill, such facts or circumstances may be introduced into the original bill of complaint by way of amendment." And Order 859, that " If the cause is not in such a state as to allow of the bill being amended, the plaintiff may state and put in issue such subsequently occurring facts and circumstances by filing a statement, either REVIVOR AND SUPPLEMENT. 1699 written or printed, to be annexed to the bill." Order 350, declares that " No such statement is to be filed, unless accompanied by an affidavit that the matter thereof arose within two weeks next before the filing of such statement, or unless the Court otherwise order. A copy of the affidavit is to be served with a copy of the statement." And Order 351, that " Proceedings by way of answer and other- wise, are to be had and taken on the statement so filed, as if the same were embodied in a bill ; but the Court may make any order which it thinks fit for accelerating the proceedings thereunder in any manner that is just and practicable." The plaintiffs had obtained a judgment at law against P., one of the defendants, upon confession, and as judgment creditors under that judgment had filed their bill to set aside a prior judgment of other defendants, and had moved for and obtained an injunction to restrain a sale of the goods of P. under such prior judgment. After the injunction had been granted, the plaintiffs obtained another judgment against P. not upon confession, but by default. Under these circumstances, a motion for leave to amend the bill by alleging the recovery of the second judgment was granted.^ Apart from any general orders this Court has power to permit an amendment of its own records ; so that though the Orders of 6th June, 1862, did not provide, in some exceptional cases, for the introduction into the suit of matter arising subsequent to its institution, such matter was ordered to be introduced upon motion for leave to amend the bill.^ In England the clause of the Statute from which the Orders 848, 349, 850 & 851, have been taken (Imperial Statute 15 & 16 Vic, ch. 86, sec. 53,) have been held not to apply to cases where an amendment is desired after decree.^ In such a case by the English practice, a supplemental bill must be filed ; but as " sup- plemental bills," and " original bills in the nature of supplemental bills," are abolished by our Order 6, it is presumed our Court would hold that these orders extend to cases of amendment after, as well as before decree. 1 Montreal Bank v. Auburn Exchange Bank, 1 Cham Rep. 283. 2 Baird v. White, 1 Cham. Rep. 275. 3 Commerell v. Hall, 2 Drew. 194. 1600 REVIVOR AND SUPPLEMENT. If this be a correct view of these' orders it will be necessary to state the English Law as to supplemental bills, for the principles of the English cases will apply : — the only difference, beinp that m England a "supplemental bill" is used, while here a "supple- mental statement" under these orders will be resorted to. With this explanation the following eases can be read without mis- leading. A supplemental statement is only available for the purpose of stating new facts between the same parties ; and cannot be used for the purpose of adding parties.^ A defendant, although he have the conduct of the suit, cannot file a supplemental statement f nor will the Com-t, on the applica- tion of the defendant, order the plaintiff to file a supplement state- ment. A plaintiff cann'ot support a bad title by acquiring another after the filing of the original bill, and then bringing it forward, by sup- plemental bill or statement f and the supplemental matter must not contradict the statements of the original bill.* Where, however, the plaintiff has stated, in his original bill, a good inchoate title, which only requii'es some formal act to make it perfect, such act may be stated by supplemental bill or statement.* A supplemental bill, after a decree, must be strictly in aid of that which the Court has already done ;'' it must not seek to vary the principle of the decree; but must take the principle of the decree as a basis, and seek merely to supply any omission which there may be in the decree or in the proceedings, so as to enable the Court to give full effect to its decision." If it does more than this : if it makes a new case, or is inconsistent with, or impeaches 1 Commerellv. Hall, 2Drew. 194 ; ifeaW v. Chapman, 17 Jur. 570: 1 W. R. 344, V O.K. ; Heath v. Lewie, 18 Bear. 527 ; Williams y. Jackson, 5 Jur. N. S. 2S4 : 7 W. E. 104, V. C. \V. ; SUhoUon v. Gibb, 2 W. E. 387, v. C. K. ; Webb v. Warclle, 11 Jur. N. S. 278, V. C. K. 2 Lee v. Lee, 9 Hare, App. i>l ; but he was allowed to file a supplemental bill : sec lu Hare, App. 72 ; 17 Jur. 272 ; S- C. iu/tii. Lijs \. Lee, 4 De G. M. & hire Railway Company, 9 Jur. X. S. 7s7 : 11 \V. 11. 7J2. \. C. K. ; and see observations of the V. C. on this fomi of prayer, ib. 3 Bowyer v. Bright, 13 Pri. 316. 4 Or a motion may, it seems, be made to take it off the file : liaiiger v. Great i^eatern Railway Company, 13 Sim. 368. 5 Cation v. Earl of Carlisle, 5 Madd. 427. As to replication, see ante. 6 Ouyyon v. Gwyon, 1 K. & J. 211. As to motions for decree, see aiite. 7 Gwyon v. Owy&n, ubi tiup. REVIVOR AND SUPPLEMENT. 1603 It is to be recollected, that a supplemental suit is merely a con- tinuation of the original suit ; and that, whatever evidence was properly takep in the original suit, may be made use of in both suits, even though not entitled in the supplemental suit. Thus, evidence taken in the original suit may be read at the hearing of both causes ; and this was permitted in a case where the original bill was filed by the plaintiff, a married woman, in a wrong name, (namely, as the widow of the testator, when her husband by a previous marriage was living,) and the object of the supplemental bill was to correct this error, and to bring her husband before the Court.i If there has been no decree in the original suit, before the sup- plemental bUl is filed, the original and supplemental suits may come on for hearing together, (unless the supplemental bill is merely for discovery,) and one decree will be made in both.^ But if a decree has been obtained before the event by wdiich the sup- plemental bill was rendered necessary, though it is only a decree nisi,^ there must be a decree on the supplemental bill : for which purpose, the supplemental cause must be set down for hearing alone ; or it may be heard with the original cause for further con- sideration : for which purpose, the Court will, if necessary, order the supplemental cause to be advanced.* If the supplemental bill is filed after decree, it must be brought to a hearing on independent evidence ; but the defendant cannot, upon such hearing, object that the decree in the original suit was wrong : he must submit to the usual supplemental decree, and appeal in both suits.^ 1 Gfiles V. Giles, 1 Keen, 685. As to evidence, see aMe. 2 Li. Red. 64, 75. 3 Ld. Red. 64. 4 See ante. For forms of decrees on -supplemental bills, see Seton, 1174, et treq. 6 Jenkins v. Cross. 15 Sim. 76. 77 ( 1604 ) CHAPTER XXXVI. INTEBLOCUTORY AND OTHER APPLICATIONS BY MOTION OR PETITION, AND ORDERS THEREON. Generally. An interlocutory application is a request made to the Court, or to a Judge in Chambers, for its interference in a matter arising in the progress of a cause or proceeding ; and it may either relate to the process of the Court, or to the protection of the property in litigation pendente lite, or to any matter upon which the inter- ference of the Court or Judge is required before, or in consequence of, a decree or order. Interlocutory applications are extremely various ; and the occasions upon which they may be made are too numerous to be discussed in a general Treatise of this nature. They may be made, either to the Judge at Chambers, or to the Court. Applications of this nature in Chambers have been already considered -^ and it is proposed here to describe the mode in which they are made by motion or petition to the Court. Interlocutory applications, when made viva voce to the Court, are called motions : when they are made in writing, they are called 'petitions. There does not appear to be any very distinct line of demarcation between the cases in which they should be made by motion, and those in which they should be made by petition ; but, as a general rule, where any long or intricate statement of facts is required, the application should be made by petition ;' while, in other cases, a motion will be sufficient.^ Although it is competent to the Com-t to order money in Court to be paid out, upon motion, J j^'j^tc. 2 ,7cmc« V. iio&eris, 12 Sim. 189. GENERALLY.' 1605 it is generally done on petition, ^ where there is no jurisdiction on summons.^ In like manner, all applications for orders, which par- take more of the nature of decrees or of decretal orders than of interlocutory proceedings : such as applications founded upon a separate certificate :^ or to wind up or compromise suits/ should be made by petition ; and so, in general, must all applications to the Court, upon matters arising out of decrees or decretal orders :° except those relating to the process of the Court, or for enforcing the performance of them, which are usually made upon motion.^ In Lord Shiph-ooke v. Lo7-d Hinchinbrook,'' Lord Erskine says " I do not find that there are any precise or positive boundaries between motions and petitions, as they are to be applied to carry into effect decrees and orders, so as to exclude all discretion in the Court to grant or refuse them, according to circumstances ; but, generally speaking, motions, which have for their object the giving effect to decrees and orders, should be confined to cases' where the order, which is to be made upon the motion, arises out of recent proceedings, upon which there is no doubt : for, as the adverse party knows nothing but by the notice, containing only the name of the cause and what is prayed of the Court, the proceedings ought to be recent and notorious, so as that the adverse party may be supposed to be perfectly conusant of all the steps and proceed . ings in the cause, as much as if, at a greater expense, they were recited in the petition." A plaintiff having obtained a decree for payment of money, registered the same pursuant to the Statute 20 Vic, ch. 56, and applied on petition for an order to sell the lands affected by such registration. By the same petition he impeached a sale of the same lands made by the defendant to his mother, before the registration of tlie d'-eree, and sought to have the sale declared fraudulent and 1 Lord Shipbrooke t. Lord Hinchinbrool!, 13 ^'e3. 394 ; Ueathcote v. Edwards, Jac. 604 ; Oarratt-^'. ^ Siblock, S Beav. 143. ■2 See aitte. 3 Ajite. 4 Winthrop -v. Winthrop, IC. V. Vcoyi i Cott.i01,20S ; Askewr. MilUngton,9H!ae. 66 -.Michardson V. Hytoii 2 De G. M. & G 79, 90 : llarriwii v. Lane, 2 Sni. & G 249 ; DawsiitL v Sewsome, 6 Jur. N. S'. 626 ; 8 W. R. 72.i, V. C. S. 6 See Wiriter v. Innes, 4 M. & C. 101, 106. 6 In 2\ichoUon v. Squire, 16 Ves. 260. Lord Eldon said : " I cannot hear parties who are under com- mitraent, except upon petition.'' Wliere a person, not a party to the cause, is injuriouslj' affected by an injunction, he may apply by petition to set it aside : Boitrbai(d v. Bourbaud,, 12 W. R. 1024, V. C. W. 7 13 Ves. 393. 1606 INTERLOCUTORY' APPLICATIONS AND ORDERS. void as against him, but the Court, though strongly impressed with the mala fides of the transaction,thought the question raised would be best decided in a suit to be brought to test the validity of the con- veyance by the son.^ A. having an interest in improvements, for which in a suit between B., his vendor, and C, B. obtained a decree — it was held that A. could not by petition make himself a party to such suit, and that his remedy was by bill.^ Although the Court refuses to entertain an application, on the ground that it ought to have been made in another branch of the Court, it may nevertheless order the applicant to pay the costs of the application.^ An order made by a branch of the Court which has not properly jurisdiction over the cause must, till discharged, be treated as a valid order ; and the party affected by such order is not at liberty to treat it as a nullity, by obtaining another order inconsistent with it, from the proper branch of the Court.* Interlocutory orders are either of course or special. Orders of course are those to which no opposition can be offered ; and are drawn up without any direct application to the Judge. Special orders are those which the Coui't, in the exercise of its discretion, may either grant or refuse. No notice need be given of the application for an order of course, as no opposition can be offered to it.^ If there is any irregularity in the order, or it has been obtained upon any false suggestion, or by the suppression of any material fact, it will be discharged on special application by motion : although on the merits it would have been proper to make the order.*^ If an order has been irregularly obtained, the party who has obtained it should take the earliest opportunity of discharging it : 1 Fish T, Carnegie, 7 Grant, 479. 2 Sia«cr T. rouTi^, 11 Grant, 268. , ,„ „ 3 Coover v. Kriox, 16 Beav. 102 ; YearsUy v. Yearsley, 19 Beav. 1 i Pn/ilv V Kent 1 Mer. 361 ; WUIcins v, Stevens, 10 Sim. 617 ; Fennings v. Humphery, 4 Beav. 1, 7 ; Blake v. Blake, 7 Beav. 514; Chuck v. Cremer, 2 Phill. 113 : 1 C. P. Coop. t. Cott. 338, 342. 5 Eyles V Ward, Mos. 255. In some cases, however, where the application would otherwise b» special an order of course can only be obtained on the opposite party subscribing liis consent thereto on the petition. The consent should be written opposite the prayer. e Harris v Start 4 M. & C. 261 ; Brooks v. Purton, 4 Beav. 494 ; St. Victor v. Devereux, 6 Beav. 584, 588 ■ 8 Jur. 26 ; Marquis of Hertford v. Suisse, 7 Beav. 160 ; Holcombe v. Aiitrobus, 8 Beav. 405, 412 ■ WUk'in V Nainby, lb. 465 ; De Feucheres v. Dawes, 11 Beav. 46 ; Brignall v. White- head 30 Beav.' 229 : 8 Jur. N. S. 183 ; Wyllie v. Elliee, 12 Jur. 711, M. R. ; Cooper v. Lewis, i Phill.' 178. • GENERALLY. 1607 otherwise, any party affected by it may procure its discharge, at the costs of the person who obtained it ;^ and, moreover, no sub- sequent order to the same effect can be obtained until it has been discharged.^ After an order of course has been obtained, it ought to be served, as soon as possible, upon the party intended to be affected by it, or his solicitor : for, although it does not seem that an order of course is absolutely no order until it is served (as it has been con- tended), yet, if the other party takes a step before the order is served, that step being in itself regular, the order which had been obtained and not served, cannot afterwards be acted upon, if it will interfere with the step so taken.s After service, an order of course cannot be amended and subse- quently re-served, so as to make the amended order, served after the time, regular.* If it is intended to enforce the performance of the order by pro- cess of contempt, the order must be personally served upon the party to be affected by it, in the manner before explained ;^ unless a special order has been obtained to authorise substituted service.^ In other cases, the service is made in the same manner as other service not required to be personal.^ Where an order was made for the payment of a sum of money by two solicitors, who were in copartnership, service of the order upon one, and leaving a copy at the place where the partnership business was carried on, was held not to be sufficient to ground a proceeding for a contempt.* Interlocutory orders are enforced by attachment and other pro- cess of contempt, in the same maimer as other orders.* 1 Tariiuk v. Tarbuck, 4 Beav. H9 ; Lincoln v. Wright, ib. 166 ; and see Davis v. Franklin, 2 Bear 369, 376. 2 Pearce v. Gray, 4 Beav. 127, 129. 3 Church V. Marsh, 2 Hare, 662 ; and see Ballard v. Catlinrj, 2 Keen, 606. 4 Wiiol V. Townsley, 9 Beav. 41, 44. 6 Ante. 6 Hunter v. , 6 Sim. 429 ; Re Mourilyan, 13 Beav. 84 ; lie Wisewold, 16 Beav. 367. As to substituted service, see ante. 7 Ante, 8 Young v. Ooodson, 2 Russ. 265. 9 Ante. 1608 INTEELOCUTOBY APPLICATIONS AND ORDERS. Motions. A motion is aii application, either by a party to the proceedings, or his counsel, not founded upoa any written statement addressed to the Court. A motion may be made by or on behalf of any party to the record, provided such party is not in contempt.^ A person who is quasi a party to the record, such as a claimant coming in under a decree, or a purchaser of an estate sold bj' order of the Court, may also apply to the Court in this manner : though it was formerly considered that he could only do so by petition.^ A motion is either of course, or special. A motion of course requires no notice, as no apposition will be allowed to it.^ The times for the sittings of the Court, and for hearing motions have been fixed by a number of Orders, which are here introduced in full. Order 590 provides that " A Judge will sit in Chambers every Monday, and on such other days as the state of business may require, to hear and dispose of such Chamber applications as cannot be heard and disposed of by the Eeferee." Order 591 that "Appeals from the Eeferee in Chambers, or from local Masters and others when they are acting under Order 36 or under the Act for Quieting Titles, are to be heard in Chambers, and are to be set down for that purpose on or before the j)reced- ing Saturday. Seven clear days' notice is to be given of all appeals under the Act for Quieting Titles ; and two clear days' notice of other appeals from the Eeferee in Chambers. All such appeals are to be argued by counsel." 1 Ab to the effect of contempt, see aiite, Cfiuclf v. Ci-emer, 1 C . P Coop. t. Cott. 247. An attach- ment issued against a party, after he has served a notice of motion, but before the motion made, will not prevent his making it : Jeyen v. Foreman^ 6 Sim. 384. As to applications by a party in contempt, see ante. 2 Ante, Jones v. KotiertBtli Sim. 189. 3 See iJyles v. H'ard, Mos. 255. MOTIONS. 1609 Order 592 that " A Judge will sit in Court on Tuesday, Wednes- day, and Thursday, and on such other days as the state of business may require, in every week, for the despatch of all business other than rehearings and Chamber business." Order 593 that "The business before the Court will be taken as follows : Tuesday. — Motions. Wednesday. — -Hearings pro confesso ; and on Bill and Answer ; Motions for Decree ; Further Directions ; Petitions ; Demurrers. Thursday. — Appeals from Masters' Eeports. Order 594 that " No orders of course, or orders made in Cham- bers, are to be entered, except : — Decrees issued upon Prsecipe ; Decrees against Infants; Orders declaring persons Lunatics ; " for Administration ; " for the Sale of Infant's Estates ; " for Payment of Money into or out of Court ; " for Foreclosure or Sale ; " of Eevivor ; " Vesting Orders ; and such other orders as may from time to time in any particular case or otherwise be directed to be entered." Where an injunction is granted to a particular day which is not a motion day, and the writ is served, together with a notice of motion for that day to extend the injunction, the notice is ngt 1610 INTERLOCUTORY APPLICATIONS AND ORDERS. irregular, though it omits to mention that such notice is given by leave of the Court.^ A notice of motion given for a day, which is not a regular Court day, unless leave of the Court be obtained for that purpose, is a void proceeding, and the party served need not attend thereon.^ It may be convenient here to mention that in England, many motions are made by way of Summons : — in this Province the practice is simplified ; for all proceedings, which in England would be taken either by Summons, or notice of motion, are here taken by the latter mode. With this explanation the English cases will be read without misconception. Motions of course are granted without the Court being called upon to investigate the truth of any allegation or suggestion upon which they are founded, and are not mentioned in Court. A special motion is one which it is not a matter of course to grant, but which the Court, in the exercise of its discretion, may, on the facts established in support of the application, either grant or refuse. Motions of this description may be made either ex paiie, or upon notice. Special ex parte motions are not limited to the ordinary motion days, but may be made to the Court at any time dm-ing its sittings ; or, if the Court be not sitting, they may be made to one of the Judges, at his private house. In such cases, however, care must be taken to make the motion before the Judge who has properly the cognisance of the cause, unless it is made during vacation. If any material fact is suppressed at the hearing of an ex parte motion, the order may be discharged with costs.^ It is impossible to lay down any clear rule defining such motions as may be made ex parte, and distinguishing them from such as require notice. The General Orders usually state whether any applications to be made under their provisions require notice or not ; and special applications concerning the proceedings in the 1 Johnson v. Cass, 11 Grant, 117. 2 Sieuan^Qji v. Boffman, 4 Grant, 318. ?, Sturgeon v. Hooknr, 1 De G. & S. 484 ; Dalgliah V. Jarvie, 2 McN. &, G. 231, 243 ; see also Re Efen^ 12 Beav. 256. MOTIONS. 1611 cause, not regulated either by the General Orders, or by any clearly defined rule of practice, must almost always be made upon notice.^ Where an order was made that a case should stand over, with liberty to the plaintiff to amend within a month, and, on his mak- ing default, that the bill should be dismissed with costs, and the plaintiff having made default, the defendant obtained an order to dismiss without notice, it was held that the order was regularly obtained; and an application to discharge it was refused.^ When the application to be made to the Court is not of course, or does not come within that class of special applications which the Court permits to be made ex parte, a statement in writing of the terms of the motion must be served upon the adverse party or his solicitor, before the day on which the motion is intended to be made. This statement is termed a notice of motion. Unopposed motions may be made on any day while the Court is sitting ;^ but the Court appoints special days for the hearing of motions ; and whenever a motion of importance is required to be made on another day than one of the days appropriated to motions, special leave must be obtained to give notice of the motion for that day. A notice of motion must be properly entitled in the cause or matter in which the application is to be made.* It must be cor- rectly addressed to the solicitor of the party or parties intended to be affected by it,^ or to the party himself where he acts in person, or personal service is intended ; and be signed by, or in the name of, the solicitor, or firm of solicitors, of the party moving, or of the party himself where he acts in person. A notice of motion by a party suing or defending in forma pauperis (except for the dis- charge of his solicitor), must be signed by the solicitor of such pauper.^ A notice of motion must state the day on which the motion is to be made : which must, as we have just seen, be one of 1 Marshall v. Mellersh, 6 Beav. 496. 2 Dobede v. Edwards, 11 Sim. 454 3 Chaffers v. Baier, 5 De G. M. & G. 483 : 1 Jur. N. S. 32. 4 Rowlatt V. Cattell, 2 Hare, 186 ; Solmnon v. Stalman, 4 Beav. 243 : Davis v. Barrett, 1 Beav. 171 ; Pollard V. DoyU, 2 W. R. 509, V. C. K. 5 Moody V. Hebberd, 11 Jur. 941, V. C. \V. ; and see Hntehiiismi v. Horner, 9 -Jur. 616, V. C. W. ■ Parker v. Francis, ib. 616, V. C. E., n. » 6 Ptrry v Walker, i Beav. 462 : 6 Jur. 1031. 1612 INTERLOCUTORY APPLICATIONS AND ORDERS. the clays appointed for motions, unless special leave has been obtained to give the notice of motion for another day. The notice, however, though it expresses the day when the motion is to be made, usually adds " or so soon after as counsel can be heard; "^ and whenever a motion is to be made " by leave of the Court," the notice ought to mention that it is so made : otherwise, the party against whom it is to be made may disregard it.^ A notice of motion must state clearly the terms of the order which will be asked for ; and where the object is to discharge an order for irregularity, it is usual, but not necessary, to state the ground of the application.^ It may include several objects : such as, the appointment of a receiver, au injunction, and the payment of money into Court. Where separate motions were made for two objects, which might have been obtained by one motion, the Court made a special order, directing the party making such motions to pay the extra costs occasioned by the irregular proceeding.'' Where it is intended to read affidavits or depositions at the hear- ing of a motion, the intention to do so must be mentioned in the notice of motion : otherwise they cannot be read.^ But it is not necessary to state in a notice of motion, that a certificate of an officer to the Court will be read in support of the application ; such certificate can be read though no such notice be given.^ All era- sures and interlineations in affidavits must be initialed by the Com- missioner before whom they are sworn, otherwise theycannot be read The notice of motion in referring to an affidavit should state the day on which it was filed.' It is no objection to a motion made by leave of a Judge that the name of the Judge granting leave is not given in the notice of motion.* No person ought to join in a notice of motion who is not inte- rested in the result of the application ; and so strictly was this rule adhered to, that where the name of an uninterested party was 1 See Re Sleetric Telegraph Company of Ireland. Ex parte, Budd, 10 W. R. 4, L JJ. 2 Hill V Rimell 8 Sim. 682 : 2 Jur, 46 ; 2 M. & C. 641 ; Jacklin v. Wilkins, 6 Beav. 607 ; Mogpridgc v Thomas 2 G. P. Conp. t. Cott. 166 ; Chamhen v. Toynbre, 12 W. R. 1100, V. C. K. 3 Brown v Robertson, 2 Phill. 173 ; and see Lambert v. Hill, 1 Dr. & War. 74. 4 Hawke \. Kemp, 3 Beav. 288. S Fnrish v. Martyn, 1 Giant, 300. 6 Cooper's Dig. 393. 7 McMariin v. Dartnell, 2 Cliam. Rep. 322. 8 Lindsay Petroleum Co. v. Hurd, 2 Cliam. Rep. 3S7. MOTIONS, 1613 inserted in the notice, with the names of others who were entitled to apply, the Court refused the whole motion.^ As a general rule, no person can be heard in support of a motion, unless he is one of the parties who gave the notice.^ If the object of the application is to discharge or vary a Chief Clerk's certificate, it seems that all persons interested in the certificate are entitled to be heard against the application.^ A motion cannot be made on behalf of the relators in an infor- mation : it must be made on behalf of the Attorney-General.'' Where the applicant is an infant,'* or a married woman, without her husband,^ or other persons under disability,^ the motion is made by the infant, married woman, or other person, by a next friend. Where a person, already acting as next friend, refuses to join in the motion, a next friend must be named for the purpose of the application f and if no next friend is named in the notice, the solicitor giving the notice of motion may be ordered personally to pay the costs.^ A notice of motion for any process of contempt or commitment must be served personally upon the party to be affected by it unless an order is obtained for substituted service. In other cases the notice should be served in the manner before explained." The application for substituted service of a notice of motion is made by ex parte motion, supported by affidavit." If any of the persons upon whom the notice of motion is sought to be served are out of the jurisdiction of the Court, they will, it is presumed, be served under Eule 6 of Order 7, of the Orders of 10th January 1863. Order 90 of the Consolidated General Orders of 1868 is copied from this order as far as, and including Eule 5. Eule 6 provides that " the time within which any party served with any 1 Folla-nd v. Lernfitte, 10 Sim. 486. 2 Stubbs V. Sargon, 3 Beav. 408 ; and see Jacquet v. Jacguet, 7 W. R. 643, M. R. 3 Johnston v. Todd, 5 Beav. 394, 396 ; and see ante, and Bonser v. Cox, 4 Beav. 379. 4 Attorney-General v. Wright, 3 Beav. 447- 6 Ptdduck \. Boidtbee, 2 Sim. N. S. 223 ; see ante. H Pearse v. Cole, 16 Jur. 214, V.C.K. ; see ante. As to suits by husband and \\'ife, or lier alone, with out a next friend, see ib. and see Cooney v. Girvin, 1 Cham. Rep. 94. 7 See ante. 8 C Clarkt V. Earl of Ormonde, Jac. 108, 122. U Ratcliffe v. trinch,W Beav. 676: 17 Jur. 636; Gardner .. Garrett, iO Beav. 469 ; Re Urooker, Brookerv. Brooker, 3 Sm. & G. 475 ; 3 Jur. N. S. 381. 4 league v. Iticholdg, 11 Sim 46, ante. U Paxton Y. Douglas, 8 Ves. 620 ; Cleverly v. Cleverly, cited t&. 621 ; Gilpin v. Lady Sou thampton, 18 Ves. 469 ; Drewry v. Thacker, 3 Swanst. 546 ; Clarke v. Earl of Ormonde. Jac. 108, 122 ; Ver- non V. Thellusson, I Phill. 466 ; Bookless v. Crummack, C. P. Coop. 125 ; Ladhroke v. Sloane, S De G. i S. 291, 292 ; Lawton v. Lawton, 8 W. E. 468, M. B.; Seton, 887. 6 GUpir. V. Lady Southampton, 18 Ves. 409. 7 Ratclige v. Winch, 16 Beav. 676. 8 King V. King, 12 W. R. 1095, M. R. „ „ „ jj 5 Paxton V Douglas. 8 Ves. 620 ; Jackson v. Leaf, 1 J, & W. 229, 231, 233 ; Curre v. Bowyer, 3 Madd. 456 ; Jones r. Brain, 2 Y. & C. C. C. 170 ; Sharrod v. Winfield, 1 Jur. N. S. 1154, V.C.M. ; see Seton, 884. 10 Re Langtry, 18 Grant, 530. INJUNCTIONS AND KESTRATNING ORDEKS. 1635 costs of the application, unless his conduct has disentitled him thereto.^ If assets are admitted, the creditor's costs are directed to be paid to him at once. If assets are not admitted, leave is given to add his costs to his claim ; and to prove for the same in the suit.- If assets are admitted, but the debt is disputed, the cre- ditor's costs will be directed to be paid, immediately on his establishing his claim.' If the application is made after the account of debts has been taken, an inquiry as to the amount of the creditor's claim will, if necessary, be directed.* An application to restrain a creditor from proceeding at Law is made by motion, of which notice must be given to him. Separate notices must be served on each creditor, suing separately^ Under the present practice, the creditor's further proceedings in the matter are restrained by the order itself; and it is not usual to direct an injunction to issue for that purpose.*" An injunction may also be granted, without a bill being filed for that express purpose, where a plaintiff is proceeding against the defendant both in the Court of Chancery and in another Court, at the same time, and for the same matter. In such cases, as we have seen' the defendant has a right to call upon the plaintiff to elect in which Court he will proceed ; and then, if the plaintiff elects to pro- ceed in Chancery, the Court will interfere, by injunction, to restrain him from further proceeding in the other Court. This remedy applies only where the i:)laintiff has not proceeded to a decree. After decree, the benefit of the order to elect is lost : because the plaintiff has already made his election, and the decree has decided the question between the parties. Under special circumstances however, the plaintiff will be permitted to sue the defendant, both under the decree, and in the other Court ; but the plaintiff ought 1 Re Langtry, 18 Grant, 630; Jones v. Jones, 6 Sim. 678 ; Graham v. Maxwell. 1 MoN. & G. 71, 73 ; Cole V. Burgess, Kay, App. 1 ; Seton, 883 ; and see Gardner y. Garrett, 20 Beav. 469 ; Lawton V. Lawton, 8 W. R. 458. M. R. 2 West V. Swinburne, 14 Jur. 360, V.C.K.B.; Cole T. Burgess, Kay. App. 1 ; Damy y. Plestow, 14 Jur. 888, V. C. Wigi-am; Canham v. Seale, 26 Beav. 266. See form ol order, in Seton, 882. 3 King v King, 10 Jur. N. S. 762 : 12 W. R. 1096, M. E. ; and see Davey v. Plestow, uhi sup.; see also Morgan tO Davey, 129, et seq. 4 Sutton V. Mashiter, 2 Sim. 1513. 6 Moseley v. Moseleg, 9 W. R. 631, V.C'.S. 6 Seton, 88S ; and see form of order, Seton, 882 ; Braithwaite' ff Pr. 229. 7 Srtnu, 94T. 79 H;-;(i OENERALLY. IjefcD'e taking such steps, to apply for leave to the C'ouit; and if he proceeds without such leave, tlie Court will restrain him, upon the application of the defendant.^ It is not now usual to issue the injunc- , tion : service of the order to elect being sufficient f but, if required, tlie injunction will be issued, (m production of an office-copy of the election.^ Except in the cases alcove pointed out, an injunction will be granted on the application of a defendant, befoi-e decree, only under very special circumstances. Another class of cases in which a,n injunction may be obtained^ without a bill being filed for that purpose, has been already pointed out as proceeding from the jealousy entertained by the Court of any interference with its process by another tribunal : for which reason _ the Court will protect persons who have acted under its decree from actions brought against them for so doing ; and will even issue its injunction to restrain a person from proceeding in an action at Law, to recover damages for false imprisonment under process of contempt improperly issued.-'' With the exceptiojis above enumerated, the rule is, that, before the Court will issue an injunction, a bill must be filed : of which bill a prayer for an injunction must form a part f and the injunc- tion must be founded on the case alleged by the bill.'' The vaiious cases in which this Court will interfere, by injunc- tion, are almost as numerous as the matters which fall within its equitable jurisdiction : for, whenever a plaintiff is entitled to equit- able relief, if that relief consists in restraining the commission or continuance of some act of the defendant, the Court will enjoin him, by means of this prohibitory writ, or by an order in the nature of it.^ 1 treil(l'-bur)i.c V. Weddcbnnie, 2 Beav. 208, 213: 4 Jur. 66 ; Phelpf Y. Prot]ierii,7 De G. M. 4 G 722, 7M : 2 Jur. N. S. 173. 2 Rraithirnite's Pr. 229. S See Setoii, 960. 4 Husaell V, London, Chatham, and Dovv Ra'diraii Coiujianii, 4 Giff. 403 ; S. C. nom. Norman Scott Russell V. London, Chatham, and IJom^i- Jtadiraif Companii, Jur. N. S. 1007 ; Edycrtnihe v Curpe liter, 1 Beav. 171. .5 Frowd V. Lawrence, 1 J. & W. 655. 6 Ante. 7 Cresy v Beamn. 13 Sim. 09 ; lli'rtz v. Uii.inn Pm ol- of ],ondon, 1 .Jur. N S. 127, V. C. S. , Burdett V. Hay, 9 .Jur. N. S. 1260 : 12 W. R. 61, L C. 8 For a collection of ca.ses in whioli injunctions hji\ >.■ In-en i;rante<.l, an;', for forni.s of orders, see Stton 867, et seq. INJUNCTIONS AND liES'J'H AININU ORDERS. 1637 lu investigating this subject, it will be most convenient to con- sider, in the first place, the cases in which an injunction will not be ganted. The Court will not grant an injunction, or order in the nature o an injunction, to restrain persons from ajjplying to the Legislature of this or a foreign country ■} except were the application is made in breach of an express or implied agreement entered into hj the parties, and relates to matters which are not of public interest. An injunction may, however, be granted to restrain a person from opposing such an application ;' or to prevent an impi'oper appropria- tion of public funds, in promoting or opposing the application.^ The Court will also refuse an injunction to stay proceedings in any criminal matter.* The Court has no jurisdiction to grant an injunction to stay proceedings on a viandamv,s, an indictment, an information, or a writ of prohibition f but this restriction applies only to cases where the parties, seeking redress by such proceedings, are not the plaintiffs in Equity: for, if they are, then they are sub- ject to control by an order personallj^ affecting them. Tf. for instance a suit were to be instituted to establish a right to land, and to quiet the possession, and after filing the bill the plaintiff should prefer an indictment for a f>rcible entiy, which is of a double nature, as it partakes of a breach of the peace and is also a civil right, " the (Jourt," said Lord Hardwicke, " would certainly stop the proceedings upon such an indictment."" Upon this principle his Lordship acted, in Afayor of Yorh v. Pilki ngton,'' where a bill had been filed to establish a right of fi.shing, and the plaintiffs in the first cause indicted the agents of the defendants for a breach of the peace in fishing : there, an injunction was granted, with refer- ence to what was civilly in question lietween the parties, though it was also the subject of a criminal pr. 100, 108 ; Lnncaxti-r and Carlisle Railirav Co'inpanv v. horth Western Railway Compa HI/, 2 K. & .1 . 203. 2 Stockton and Hartlepool Railtra i/ Company v Leeds and Thirtik Railway Company, ubi sup. 3 Attorncy-Gcni'ral v. Corporation ofNonoicI), l(j Sim. 225, 220 ; Attorney-General v. Gvnrdiant of Sout,hrinipti,n, 17 Sim. (i, 18 ; Attorney -Ginrral v. Eastlake, 11 Have, 20o ; 17 .lur. 801 ; Attorn'.y- Gcneral \- Mayor of Wiijan, Kay, 2ed ; f, Pu W. M. & G. r.2: 1> Jur. 2nil. 4 Hohierstafe v. Sminders,*^ Moti. 17. .5 Lord Montague v. Dadwan, 2 Ves. S. 306, 6 2 Atk. SOS. ■ 7 2 Atl;. 302 ; .lee Lord Montagtie v. Dudman, 2 Ves. S. 306 ; Attornry-Geiifral y. Cleaver, 18 Yes. 220. 1638 GENERALLY. tion of right was depending in Equity, it was Init reasonable that the plaintiff should not proceed by action or indictment until it was determined there. A Court of Equity has no jurisdiction to stay the process of a Court of Law, upon an award which has been made a rule of Court under the Stat. 9 &; 10 Will. III. c. 15 : the Court in which the sub- mission is to be made a rule, alone having the power of reviewing the award. 1 An injunction will not lie to relieve the plaintiff against a judg- ment at Law, where the case in Equity proceeds upon a ground which was equally available at Law, unless the plaintiff can estab- lish some special equitable ground for the relief which he asks. Accordingly, it has been held, that a plaintiff in Equity, who had pleaded a set-off in an action at Law and failed, could not sustain a bill for an account, relating to the same transaction as to which he had pleaded the set-off.- But if a defence could not have been made available in the Court of Law, at the same time, or under the cir- cumstances, and there is no laches in the party applying, then relief will be granted, and the Court of Chancery will interfere by its injunction.^ So also, if a fact, material to the merits, which would render the proceedings upon the judgment inequitable, should be discovered after a trial, which could not, by ordinary diligence, have been ascertained before, relief will be granted.* These, however, are mere exceptions to the general rule, that Equity will not relieve after a verdict where the defendant at Law might properly have defended himself there f or where there has been a mistake in the pleadings, or in the conduct of the cause f or merely to let in new corroborative evidence.'' 1 Gioinett V. Bannister, 14 Ves. 530 ; Dawson v. Sadler, 1 S. t S. .537 ; Nichols v. Roe, 3 M. & K. 431, 438 ; overruling;, S. C. 5 Sim, 156 ; see also Heming v. Swinnerton, 2 Pliill. 79 ; Davies v. Getty, 1 S. & S. 411 ; Pope v. Dnneamwn , 9 Sim. 177 : 2 Jur. 178. 2 Harrison v. Nettleship, 2 M. & K. 423, 425 ; and see Simpson v. Lord Bowilni, 3 M. & C, 97 ; Mol- lett V. Emquist, 26 Beav. 466. 3 Farquharson v. Pitcher, 2 Russ. 81, S9. i Jarvis v. Chaiidler, T & K. 319. .•> Protheroe v. Forman, 2 Swanst. 227 ; and see Countess of Gainsbormigh v. Giff'ord, 2 P. Wras. 424; Lord Red. 132; Taylor v. Sheppard, lY. & C. Ex. 271, 279; Uankeyy. Teninu, 2 Cox. Yi; Isaac V. Humpage, 1 Ves. J. 427 : 3 Bro. C. C. 463 ; Bateman v. WiUoe, 1 Sch. & Lef. 205. (t Stephenson-^. Wilson, 2 Vera. 325; Blachhallv. Combs, 2 P. Wms. 70; Kemp v. Mackrell, 2 Ves. S. 579; Hohsorthy v. Mortloch,! Cox, 141; Great Western Railway Company v Cripps, 5 Hare, 91. 7 Ware v. Hnnrood, 14 Vea. 81 ; Bullock v. Chapman, 2 Do i!. & S 211 : 12 Jur. 738. INJUNCTIONS AND BESTRAINING OEDEES. 1639 An important distinction has frequently been attempted to be drawn, between an error or mistake in fact, and an error or mistake in Law. With resjiect to the former, it has been clearly settled, that where a deed has been executed, or money paid, from ignorance of a fact, or under an erroneous impression respecting it, a Court of Equity will relieve ; but there seems to have been some difference upon the question whether it would do so, when an act has been done under a mistake of law.^ With regard to the cases on this head, in which relief has been given, some of them are attended with circumstances of fraud or circumvention, and others of them lie so much on the borders of the two kinds of errors, that they are to be classed amongst instances of errors of fact, rather than errors of law f but, in Pullen v. Ready^ Lord Hardwicke intimated, that, if parties are entering into an agreement, and have the facts before them, and their counsel choose to construe it, taking upon themselves the knowledge of the law, he would then hold them bound. Lord Eldon has quoted this passage with evident approbation ; and, whatever may be the rule generally as to other parties, yet, in family arrangements, it seems to be settled that they will not be disturbed, after a long acquiescence, on the ground that they are founded on a mistake of the parties, or because, in the result, they may turn out to be more advantageous to one party than the other.* We may, therefore, infer, from these cases, that an injunction will not be granted to stay SjWJ legal proceedings on the ground that the deed or instrument upon which an action was brought was made under a mistake in point of law f for ignormantia juris non excusat.^ Having now considered the several cases in which the Court will not interfere by injunction, the principal instances in which injunctions may be obtained will be mentioned. 1 Pusey V. Desioum-ie, 3 P. Wms. 316 ; BrodericJc v. Broderick, 1 P. Wms. 289 ; Cocking v. Pratt, 1 Ves. S. 400 ; Bingham v. Blnghaiii, ib. 126 ; liamsden v. Hylton, 2 Yes. S. 304. 2 See 3 M. & K. »9. 3 2 Atk. 691 ; cited 1 V. & B. SO. i See Tweddell v. Tweddell, T. & R. 1, 11 : Bellamy v. Sabine, 2 Phill. 426; Jenner v. Jenner, 2 Gifl. 232 : 6 Jur. N. S. 668 ; 2 De G. F. & J. 359 : 6 Jur. N. S. 1314 ; Talbot v. Staniforth, 1 J. & H. 484 : T Jur. N. S. 961. 6 StockUy \. Stockley, 1 V. & B. 23 ; Clijton v. Cockburn, 3 M. & K. 76 ; XeaU v. Neale, 1 Keen, 672, 682. 6 Broom's Maiim.s. 249, et seq- 1640 GENERALLV. It is a general rule, that wherever a party, by fraud, accident, mistake, or otherwise, haw obtained an advantage in proceeding in a Court of ordinarjf jui-isdiction, which must necessarily make that Court an instrument of injustice, a Court of Equity will interfere to pi'event a manifest wi-ong, by restraining the party whose conscience is thus bound, from using the advantage he has there gained.^ Thus, if Ijy fraud, accident, or mistake, a deed is framed contrary to, or beyond the intention of the parties in their contract on the subject, and the fomis of tlie Courts of Common Law will not admit of such an investigation as will enable them to do justice, the (_'ourt of C'liancer}" will restrain the party from asserting his legal rights under the instrument in those points in which it is so framed, until the question has been inves- tigated : when, if the complaint be well founded, it will either rectify the instrument in the points complained of, or permanently restrict the party from luaking use <.if it.- There are also many other cases in which the legal defence to a claim set up at Law rests, either exclusively or in a great degree, within the knowledge of the party advancing the claim ; and as it is against conscience that the paitj' should proceed in the assertion of his claim without communicating the information he possesses, it has become one of the modes of equitable interposition to afford relief, hy injunction, until the discovery is obtained. Fraud, accident, mistake, and discovery, are, therefore, four of the principal grounds upon which injunctions may be applied for, to stay proceedings at Law. And it is to be observed, that an injunction to restrain proceedings at Law, when awarded, does not deny, but admit, the jurisdiction of the Courts of Common Lav\' : and the ground upon which it issues is, that they are making use of their jurisdiction, contrary to equity and good conscience.^ The Court will relieve against an award made between partners in ignorance, on the part of the arbitrators and of the remaining partners, that important tiunsactions had not been entered by the other, the managing partner, in the books of the firm, in consequence of which omission the award had been, to a corresponding amount too 1 For a collection of cases aa to the staying proceedings in other Courts, with formi of orders, see Seton. 874-882. .: Lord Red. 127 : -Brf'-" on Inj. 4-1-1. o Uill r. Turnet; 1 Atic. 010 ; and .see ulwl/icld v. Duchess of BvcHnghaniShiref ib. 628. -INJUNCTION'S AND KESTKAINING ORDERS. 1641 favorable to such managing partner. An injunction to restrain proceedings on a judgment i-ecovered at law upon an award alleged to have been made under these circumstances was continued to the hearing in a case, in which the ultimate success of the plaintiffs at the hearing, was not considered wholly free from question ; the amount of the judgment being ordered into Court.^ A sale of the equitj' of redemption of certain mortgaged property had been effected under a power of sale contained in a second mortgage deed, and pending a suit in this Court to set aside such sale . The first mortgagee, who was one of the purchasers, was proceeding at law to recover against the mortgagor, upon the covenant contained in his mortgage deed, whei'eupon the mortgagor filed a supplemental bill to restrain proceedings at law. The first mortgagee, in his answer to the original bill insisted on the validity of the sale ; — from what had taken place, it was doubtful whether the mortgage debt was not extinguished in equity, as between the mortgagor and the mortgagee, and the original cause being almost ripe for hearing, an injunction was granted to restrain the action at law until the hearing took place. ^ A mortgagor filed his bill alleging that nothing was due on the moi'tgage, and moved for an injunction to restrain execution in eject- ment. The defendant set up a pui-chase and release of the equity of redemption, and alleged that except by means of this ])urchase the mortgage was not paid. The Court considered that the evidence shewed there was a fair case to try, as to the validity of the alleged purchase ; and granted an injunction on the plaintiff paying into Court $200, and entering into the usual undei'taking.^ The owner of land agreed to sell a portion thereof", afld admitted the party into possession, who improved the premises and afterwards offered to sell his improvements back to his vendor,andforthe purpose of ascertaining the amount to be paid, referred it to arbitrators who made an award, but its terms were never comjDlied with, and the vendor afterwards brought an action of ejectment against the 1 Wilson V. Richardson, 2 Grant, 44S. 2 Hr,s V. Beckett, 2 Grant, 650. 3 Keating v. McKee, 14 Grant, 608. 1642 GENERALLY. part.y in possession. The Court upon motion gi'anted an interimi injunction restraining the plaintiff in ejectment from executing a writ of possession.^ The Canada Company tlirough their agent, resident in Canada, contracted by letter to sell certain lands of the Company, upon the condition, amongst others, of the vendee building a saw mill thereupon, ihe vendee proceeded with the knowledge of the agent of the Company, to erect a saw mill, and construct a dam across a liver, the effect of which was to overflow a a large tract of land belonging to the Company.' Subsequently the Company conveyed the lands contracted for, and which were situated on both sides of the river, across which the dam had been constructed reserving the bed of the river, and about thirty feet on either bank, the title to the bed of the river being then in the crown. Afterwards, the company having obtained a grant from the crown of the bed of the river, instituted proceedings at law against the persons owing the mill for the damage done by the overflowing of the river, and recovered a verdict for £.500, and other actions were also brought for the same injury. Upon a bill filed for that pur- pose, the Court, at the hearing, decreed a perpetual injunction restraining the company from proceeding with the actions, and a conveyance of the bed of the river, and the portions on either side which had been reserved, and ordered the company to pay the costs.^ The plaintiff and defendant entered into an agreement, under which the defendant was to procure goods, or guarantee the pay- ment of goods which were to be obtained, and sold by the plaintifi" for their joint benefit, in certain proportions, and the plaintiff to secure and indemnify the defendant against all loss m respect thereof, executed a confession of judgment to be acted upon only in default of the plaintiff meeting the payment of such goods ; the plaintiff made default, and defendant entered up judgment and sued out execution ; the Court dissolved an injunction which had been issued, restraining pi-oceedings upon the execution so issued although upon the construction of the agreement it was doubtful whether a partnership had not been created between the 1 Cook V. Smith, 4 Grant, 441. 2 BrtKtUr-r. The Canada Company, i Grant, 443. INJUNCTIONS AND RESTRAINING ORDERS. 1643 parties; but the defendant (the plaintiff in the execution) having caused certain goods, provided by himself under the agreement to be levied upon, the Court directed that tlie auiouut thereof, at cost and charges, should be deducted from the amqiint of the debt and costs, or that the injunction should be continued in respect of that amount. (The Chancellor dissenting, who thought the injunction should be continued to the hearing.)^ The solicitor of a mortgagee in a suit of foreclosure, after a decree of absolute foreclosure, pur- chased the mortgagor's interest in the premises ; the decree, so pro- nounced, was subsequently set aside, and a decree nisi directed to be drawn up directing inter alia, a sale of the mortgaged premises, and that aU judgment creditors should be served with the decree and made parties to the suit ; notwithstanding this, however, the soli- citor, who was also a judgment creditor of the mortgagor, proceeded upon his judgment 'and was about to sell the mortgaged premises under execution ; the Court, upon a, motion made in the cause, restrained the solicitor from proceeding with his execution, and ordered him to pay the costs of the application.^ The plaintiff had subscribe;! a sum of money to aid in the erec- tion of a parish church in the city of Toronto, with a view of raising such a sum as would enable the churchwardens to erect the church on the old site, so as to avoid leasing off portions of the land about the church used as a burying ground. Subsequently, at a meeting of the vestry, the plan of building was changed, by reason of which in making the excavations for the foundation of the church the graves of several members of the plaintiff's family were disturbed ; thereupon, the plaintiff addressed to the vestry- clerk a letter annulling his subscription and refused to pay it. A suit having been instituted in the Division Court for the recoveiy of this subscription, a motion was made in this Court for an injunction to stay such action. The Court, under the circumstances, refused the application, with costs. Qucere, whether this Court will in any case grant an injunction to restrain an action in the Division Court.^ 1 Watt v. FosUr, i Grant, 548. 2 Goodwin v. WMiams, 6 Grant, 178. 3 Heward v. HarrU, 6 Grant, J26. 1(34.4 GENERALLY. The owner of shares iu a steamboat, on whicli a ]jortion of the price was secured by the bond of the holder, sold the same, subject to this bond, and the shares were afterwards transferred in trust for the benefit of the original owner of the vessel, who still held the bond for securing the payment of the stock ; notwithstanding which proceedings were taken by him to enforce payment of the bond. Upon a bill, filed for that purpose, the Court restrained further proceedings thereon ; and ordered the bond to be delivered up to be cancelled, with costs. ^ The purchaser of saw-logs, to be delivered at certain specified times, assigned the contract to a third party, to whom the vendor delivered one year's supply of the logs. Afterwards, the original purchaser, becoming insolvent, absconded, and the vendor refused to complete the contract, asserting the right to stop the goods in transitu, or to retain them before the trayisltus commenced, in eon- sequence of the insolvency of the purchaser. The assignee there- upon commenced an action at law in the name of the purchaser against the vendor, in which he recovered judgment, and the ven- dor filed a bill to restrain proceedings at law. The Court refused him any relief, and dismissed the bill with costs.^ A defendant in an action at law, filed a bill in this Court to restrain proceedings, alleging, as grounds for relief, facts, which, if they had been pro- perly pleaded, would have afforded a good defence at law. The Court, without enquiring as to the merits of the case, dismissed the bill. A party mis-pleading at law, is not thereby entitled to seek relief in a Court of Equity.'' Proceedings under a./i. fa. at law hav- ing been set aside, and an action brought against, the Master, iu whose name the /?'. fa. had been sued out, an injunction was issued restraining proceedings. Held, the application for an injunction in the original cause in this Court was regular, and that the officer of this Court was the proper person to whom should be referred the question as to the amount of damage sustained by the proceedings which had been set aside.* A creditor having proved his claim in the Master's office, afterwards proceeded to sell under aji.fa. Upon 1 Thompson v. Wilkes, 5 Grant, 594. 2 Wait V. Scott, 6 Grant, 154. 3 Morrimmr. McLean, 7 Grant, 167. 4 Fitlier V. Glcma, 9 Grant, 46 IN'JUNOTIONS AND RESTRAINING ORDERS. 1645 the application of a co-defendant, the sale was I'estrained with costs.-' A debtor while indebted to one ereditov^aud alleged to be insolvent, assigned a note to another cveditor for a bona fide debt. Sub- sequentlj- both creditois brought actions to recover their respective demands, but in order to enable one of them to obtain a first judg- ment, no defence was entered to his action, while the other action was defended. The Court, (following the decision of Yov/nij v. Christie, 7 Grant, 312), refused an injunction t(j restrain the first judgment creditor from enforcing the execution .sued out on hi« judgment.^ Although the plaintiffs had been guilty of great delay in applying to this Court for an injunction to restrain the sale of lands under an execution at law, yet a sufficient case having been made out for an enquiry, the Court granted the writ on an interlocu- tory motion ; the plaintiff's undertaking to proceed to an examination of witnesses within one month after an.swer filed, and hearing the cause forthwith thereafter, paying the costs at law incurred by reason of postponing the sale, and paying interest from the time the sale was to have taken place until the time of making a decree in the cause, in the event of the sale failing to realize enough to pay the full amount of the claim under the execution.^ A party to an action at law in coming into equity to obtain relief against a judgment therein and a stay of execution issued against him on such judgment, upon a statement of facts which, had they been proved, would have constituted a good defence to the action, is bound to establish that there are facts which, had they been proved in the action, would have formed a good defence ; but at the time of such trial, and at the time he could, upon this disclosure, have obtained a new trial, he was ignorant of them, and could not with reasonable diligence have ascertained them. When a long time has elapsed since the party so applying did ascertain such facts, he is bound to make out as clear a case for an injunction as he would to obtain a decree to unravel the transactions which a Court of com- petent jurisdiction has, by its judgment, closed.' This Coui-t has no iurisdiction to restrain execution or other proceedings at law on a 1 Cahuac y. Diirie, 9 Grant, 486. 2 McKenna v. Smith, 10 Grant, 40. 3 Canada Perinaiieni Building Society v. Bank of XIpper Canada, 10 Grant, 20S. 4 Cunningham v. Buchanan, 10 Grant, 628. 1646 GENERALLY. legal demand upon a written instrument, on the ground that the defendant at law has a counter claim for unliquidated damages for the violation hy the plaintiff at law, of covenants contained in the same instrument.^ Where au agreement not under seal, was entered into by a mortgagee, who obtained from the' mortgagor a deed of certain pi'operty ; whereby the mortgagor was allowed to retain possession of a portion of the property, and the mortgagee the other portion, until he was paid; and such agreement having been destroyed by the mortgagee, and an action of ejectaient brought on the deed ; the Court restrained the mortgagee from enforcing his legal right.^ An injunction may be granted against a plaintiff, at the instance of the defendant before decree.' On an application for an injunction against an execution at law, the plaintiff in equity has not necessaiily to satisfy the Court by evidence that the facts, if disputed, are as his bill and affidavits state ; but only that there to a substantial eqitable case which ought to be decided before execution goes. Where a party who is wrongfully sued at law comes into equity promptly, so that, by means of our system of circuits, his equitable case can be tried with- ' in a few weeks of the time when a legal defence would be triable at Jaw, if he verifies his bill, shewing a good equitable case that is only triable in this Court, he can seldom be refused an injunction to re- strain any execution going until the equitable questions are disposed of There is no technical rule requiring the plaintiff's affidavit in support of a motion for an injunction to restrain any execution going until the equitable questions are disposed of There is no technical rule requiring the plaintiff's affidavit in support of motion for an injunction to be corroborated by other evidence ; though the absence of other evidence may sometimes be a circumstance material to be considered. If a defendant at law is guilty of delay in insti- tuting his suit here this may not be a bar to his application for an injunction ; but the Court, for the security of the plaintiff at law, may require the payment of the money into Court to abide the event ; or ma}' impose other terms which in case of a prompt appli- cation it might not be just or reasonable for the Court to exact. Or, the Court may, in the exercise of its discretion refuse the motion 1 Smith V. Wootten, 12 Grant, 200. 2 Harrii v. Meyers, 7 U. C. L. J. 243. 3 Stewart v. Kiiij/imill, 13 Grant, 347. TN.TUNCTTONS AND RESTRAINING ORDERS. 1647 altogether, notwithstanding the prima facie case, which the plain- tiff's bill and affidavits present in his favor ; and, in view of this dis- cretion, it may be expedient for the plaintifi" in such a case to fortify his own affidavit with other evidence, which, in case of an earlier application might have been unnecessary. A defendant at law un- necessarily delayed filing his bill for an injunction until it was too late, to have the equitable case it set up heard for six months ; there were executions to a large amount out against his lands at the suit of other persons ; and the defendant in equity swore, that, if delaj'-ed by an injunction, he believed he would pi'obably lose his debt. This statement not being met by any counter affidavit, an injunction was refused except upon the terms of paying the money into Court.^ A rule 'U isi in a County Court, for staying an execution on the ground that the execution had been satisfied having been discharged was held to be no bar to an interlocutory injunction in this Court on the same ground.- In these cases, the interference of a Court of Equity is founded upon strict equitable principles. Sometimes, however, the question between the parties depends partly upon a legal title and partly on an equity which will arise only in the event of that title being- decided in one way. In such a case, the practice of the Court is, to require that the party applying to the Court for its interposition should admit the legal right of the other party ; or, if circumstances are not such as to enable him to do that, then to allow the action to go on, but to restrain execution on the judgment, in order that the legal rights of the parties may be first ascertained, and that the plaintiff" may then come to the Court to apply those legal rights.'' In cases resting upon purely equitable grounds, the injunction is not confined to any one point of the proceedings at Law ; but, upon a proper case being presented to the Court, it may be granted at any stage of the action. Thus, an injunction is sometimes granted to stay trial ;* sometimes, when the parties are in a condition to enter up judgment, to restrain their sd doing ;° and sometimes it is 1 Treadwell v. Morris, 15 Grant, ](i5. 2 Bush v. Biisli, 15 Grant, 431. 3 Barnard v. WaUis, C. & P. SS, 90 ; Hudson v, Temple, 9 W. R. 243 ; not reported on this point, ■_>!) Beav. 636 ; and see Seton, 875. 4 Codd V. Wooden, 3 Bro. C. C. 73 ; Lady Arundell v. Phipps, 10 Ves. 139, 144 ; Rowe v. ffood, 2 Swaust. 234, n. (a) ; Holme v. Brown, 9 Hare, App. 29 ; and see Lhii/^J v. Adams, i K. & .T, 467. 5 Turner v. Wright, 1 .J. & W. 290 ; WiUiaiiis v. Roberts, 8 Hare, 31.5. 164.8 GENERALLY. issued after a judgment, to stay execution, or proceedings under an execution.! flae Court is, however, very cautious in interfering, ■when the application is made on the^eve of the trial at Law f and it is to be remembered that, after a judgment, an injunction will not be granted, except in those cases where there has been fraud or col- lusion in obtaining a verdict ; or whei'e the'jparty Jias been unable to defend himself effectually at Law.^without'^any fault or negligence of his own; or where the plaintiff has possessed himself of some- thing by means of which he has obtained an unconscientious advantage. In short, the Courts are unwilling to interfere, where it appears that the plaintiff has lain by until after a trial has taken place.-' It has been held in our Court that, whei-e a special ^injunction is granted staying proceedings at Law, the amount claimed in the action at Law, must be paid into Court.* A mortgage had been created by an absolute deed of conveyance with a bend of defeasance ; a judgment was afterwards obtained against the mortgagee and an execution sent out against his lands ; the Sheriff, under the writ so issued, had advertized, and was about to sell the mortgage iir(jperty ; upon a bill filed against the judg- ment creditor and the mortgagee, setting forth these facts, which were admitted by the defendants, the Court granted a special injunc- tion restraining further proceedings under the writ.^'' Where an action at Law had been brought by a Building Society against W. as surety for the Seci-etary of the Building Society ; and W. filed a bill to restrain the action, founding liis Equity on a resolu- tion or minute alleged to have been p.issed or made by the Board of Directors in the following term.-, — " That Mr. W. had requested that his security for the Secretary might be cancelled. * * * It was suggested also that Mr. K. W's, iiame should be erased from X Protheroe \. l-'nruuii}, -A Swanat. 2-n, -r.-l.n. ; l:rn,,l,-sv. I^'inimi, 1 Y. /z f. C C all 274; (i Jur. M; Willirims v. JJ(ir<, .s, 2 Sim. 481. •2 Siioii, 877, citing Lfiniiutl' v. .iunmon.-., 11 Fel) IS.'il, \ . i_\ S. ; aiirl sec Hohnr v. JSrmni, 9 Hare, App. 29 ; Llmjd v. AdaMi.'<, 4 K. & J. 467. Formerly a, distinction c\i^ted between injuiictioiw to restrain proceedings at law, and other in- junctions ; but tliis has been abolished : and sec J Inline v. limtni, 9 Hare, App. 28 : Fitzgerald v. Butt,ib.: App. a.? ■.HcrrjisOH v. A'.VTOfUi, 16 -Ju.-. 1111, V. C S. : II Hare, App. 20 n. ; Senior Pritchari, 16 Beav. 473 : LmvH v. (Mdlnway, 17 Beav. 1 ; MoUett v. Ellequint, 26 Beav. 609 : 20 Beav 466; Harris v. Collett, 26 Beav. 222 ; Magimy v. Mines lioi/al, 3 Drew. ISO: 1 .Tur. N. 4 //« 153 : Lloyd v. Adrims, 4 K & .T. 467 ; Pox v. Hill, 2 De G. & J 363 ; Seton, 877. 'arrisnn v. Bnlri. 1 rjrant, 247, ,■. Nc-U v. BmJr nf Vpjin- Canada, 2 Grar INJUNCTIONS AND KESTRATXING ORDERS. 1649 tile said bond by wish of the board, and both be relieved from secv- 'rities. Mr. T. was requested to submit two othei' names as securities in place of the two gentlemen named." The Court held that such a resolution afforded no ground for interfering with the action at Law.i The Courts of Common Law have now the power of compelling discovery, and adjudicating upon equitable defences f but the con- current jurisdiction of the Court ot Chanceiy is not thereby abrogated.^ A party, however, who raises an equitable defence at Law, may be held to have elected to abide by the proceedings there, and to have abandoned his right to proceed in the Court of Chancery.* An injunction until answer, or further order, may be granted to resti-ain proceedings in the CJourt of Probate, on the ground that a complete discovery cannot be obtained there.'' Although the Court of Chancery does not, in general, interfere with proceedings in the Court of Bankruptcy, which is a Court of Equity as well as of Law, and therefore cajiable of doing justice between the parties in matters of equity, yet, it seems, that it will interfere to restrain proceedings, the effect of which may be to afford a foundation for an adjudication in bankruptcy, in a case where such a proceeding would lie contrary to equity.' ■ fi V. and D., traders, made an assignment to tlie jilaintiffs on the 0th January, 1865, as insolvents, and in pursuance of the provisions of the Act of 1864. A judgment at Law having been obtained at^ainst V, his interest in the partnership assets was sold for a 1 Whittemorc v. Ridout, 2 Grant, .525; "2 As to compelling discoverv at law, see Common Law Procedure Act : Chitty't; Arch, 141] , et -scy. ; and a.s to equitable defences at law, see same Act, ss, 83-36 ; Chitty'x Arch. 2.52, et Rfq. As to writs of injunction at law, see post. 5 Magnay v. Mines Royal, 3 Drew. 130: 1 Jur. N. S 153 : Farehyoth" f v. Welch an, 3 Drew. 122; Gumpirtz V. J'ooUy, 4 Drew 443 ; 5 Jur. N. S. -J;! ; Phelps x. Prcthero, 7 De O, M & G, 722 : 2 Jur. N, S, 173; Emns v. Bremridge, 2 K, & J, 174 ; 8 He f4, M, .V G. 100 ; 2 .Jur, N, S 311; Brit.Uh Empire Shipping Conipanj/ v, Soines, 3 K. & .T, 4:;3 : ?, .Jur. N S, S^?. : Crn^l-nt v Kvnipcan <(■ American Company, 1 J, & H. 108: 6 .lur. N, S 1100 : Barni v, Cro'^ksii, -i ,1, i: H, 1:10 ; Walker V. Mieklethwaite, 1 Dr, & Sm. 40 ; Thornton v. MeKemin. 1 H i M, ;,>:•, :.!'.> ; Stenm-t v. Great Western Railway Company, 2 Dr, & Sm, 438 ; Aff'd. 2 De G. J, & S, 319 : 11 Jur, N, S, C27, 4 Terrell V. Higgs 1 De G. & J, 338 ; 4 Jur, N. S, 41 ; Walker v. Michlethwaitlie, ubi sup ; and .see Evans V, Brenvridge, and Stewart v. Great Western Railway C'ninpaint, ubi sup. .5 Fuller V. Ingram, 5 Jur. N. S. 610 : 7 W. R. 302, V, C, W. 6 J ttwood V. Banks. 2 Beav. 192, 200 ; Perry v. Walker, \Y. ti (i. C. 0. 672 : S Jur. 846 ; Pirn v. Wilson, 2 Phil. 6.53, 0,56; uiid see Thompson v, P'rhani, 1 Hiiro, 3,5«, 371, 380 ; Mather v. hay, 2 .J, & H. 374. 1660 ftENESALLY. nominal consideration to C, who had notice of the Insolvency pro- proceedings, C, then entered into possession of, and otherwise interfered with the partnei-ship goods, so as to hinder the plaintiffs fi'om exercising the duties of their office ; an injunction was there- fore gi-anted on apiDlication of the assignees to restrain the defend- ant from further interference.^ By letters patent under the great seal issued on the 16th October, 1842, certain persons therein named were created a body corporate by the name of " Queen's College, at Kingston," with the style and privilege of a University, with power to appoint professors and other officers, and in case of complaint made to the trustees to institute enquiry, and in the event of any impropriety of conduct being duly proved, to admonish, reprove, suspend, or remove the person offending : Held, that the professorships in the institution were offices of freehold, and that the trustees had not the power at their discretion without such enquiry of removing the professors, but that they held their appoint- ments ad vitam, aid culpa m, that this Court would by injunction prevent the trustees from improperly interfering with the professors in the discharge of their duties, and where a professor had been im- properly removed, the Court, on decreeing him relief, and in order to do him complete justice, ordered him to be paid out of the trust funds of the institution his arrears of salary ; and ordered such of the trustees as had acted in such improper removal to pay the costs of the suit.- With regard to foreign Courts, there has been much doubt and difference of opinion. Soon after the Restoration, when the Court of Chancery was in its infancy, Lord Clarendon refused an injunc- tion to restrain proceedings at Leghorn, after advising with the other Judges; but the reporter adds, " sed quoRve, for all the bar. was of another opinion."^ This case has not been recognized or fol- lowed in later times ; and several authorities may be found where decrees and orders have been made to resti-ain defendants from carrying on proceedings under such actions, in Ireland,^ Scotland,^ 1 Wilson V. Coriy, 11 Grant. 92. 2 Weir v. Hathietim, 11 Grant, 383. 3 Love V. Baker, 1 Ch. Ca. 67 ; S. C. nmn. Lowe v. Baker, Freem. 125. 4 Clarke v. Onnonde, Jac. 5^6 ; Booth v. Leyccster, 1 Keen, 679 ; Harrison v. Gurnry, 2 J. & W. 563. 5 Kennedy v. Cassillis, 2 Swanst. 313, 323 ; see Wharton v. May, 5 Ves. 27, 71 ; Bushby r. Mvnday, 5 Madd. 297, 306 ; Marqvtss of Breadalbane v. Itarqmss of Chandos, 2 M. & C. 711, 728; Jones r. Geddes, 1 Phil. 724 ; Venning v. Loyd, 1 De G. F. & J. 193 : 6 Jur. N. S. 81 ; ilarguit of Bvte v. Shinrl. 3 Oiff. ■'■^'3 : 7 -Iiir. N. S. 356 : S. C. num. ^ttmrl v. Moore, ih. 1129 ; 4 Mac. H. L. 1. INJUNCTIONS AND RESTRAINING ORDERS. 1651 Demerera, and other countries.^ In granting such an injuncton, however, the Court does not presume to direct or control the foreign Courts ; but, without respect to the suhject-matter of dis- pute, it considers the equities between the parties, and decrees in personam, according to those equities. The jurisdiction is not grounded upon any pretension to the exercise of judicial and ad- ministrative rights abroad, but on the circumstance of the party, upon whom the order is made, being within the power of the Court : for, if the Court can decree the performance of an agreement touch- ing the boundary of a province in North America,^ or can foreclose a mortgage in the Channel Islands,^ in like manner it can restrain the party, being within the limits of its jurisdiction, from doing anything abroad, whether the thing forbidden be a conveyance or other act in pais, of the instituting or prosecuting of an action in a foreiam Court.* And if a defendant, who is thus ordered to discon- tinue a proceeding which he has commenced against the plaintiff in a foreign Court, should think fit to disobey the order, and con- tinue the prosecution of such proceedings, the Court of Chancery, although it does not pretend to control or intermeddle with the in- dependent jurisdiction which the other Court undoubtedly possesses will act upon the person of the defendant, by punishing him for his contempt ; and if he should continue contumacious, and ultimately obtain a judgment in the other Court, it will protect the plaintiff here against the consequences of that judgment,^ In this view of the case, as the doctrine is now established, the only question is, whether the ends of justice require that the Court of Chancery should interfere. This must depend upon special circumstances : such as, that the Court of Chancery has better means of determin- ing both the law and the facts of the case f or that two suits have been instituted for the same matter in all respects, and there has been a decree and adjudication in this country ; or that there are questions in the cause, which must be decided according to the prin- ciples of equity, before it can appear whether the parties have a 1 Bu.nbv.ry v. Bimb ry, I Bca.v. 318, 33L ; Beclcford v. KemUe, 1 S. & S. 7, 15 ; and see Price v. Dewhurst, 4 M. & C. 76, 79 ; 8 Sim. 279 ; Cood v. Cood, 3.3 Beav. 314 : 9 Jiir. N. S. 1355. 2 Peiin V. Lord Baltimore- 1 Ves. S. 444. 3 Toller V. Carteret, 2 Vern. 494. 4 Lard Portarlingtan v. Soulby. 3 M. & K. 104, 108. 5 Bushii, V. Munday, 5 Madd. 297, 307. 6 Ibid.:' Jones v. Oeddei, 1 Phill. 734. 8o 1652 GENERALLY. clear equitable, as well as legal title, to the rights which they claim abroad. '^ An injunction will also be granted to prevent waste, or anything in the nature of waste. The inadequacy of the remedy at Common Law, for waste, is so unquestionable that a I'esort to the Courts of Law, for this purpose has in a great nieasiire fallen into disuse The remedy by a bill in equity is much more easy, expeditious, and complete : for relief will be given in equity where the reme- dies provided in the Courts of Common Law could not be made to apply ■} as where the titles of the parties are of a purely equitable nature ; or where the parties have b<.)th legal titles and legal remedies, but irreparable mischief would be done, unless they were entitled to more complete relief than that which they could obtain at law ; or where the parties committing the waste, with nothing but temporary and limited interests in the subject-matter, are maliciousl}' and wantonly abiising those legal rights to the injury of those in remainder.^ The most ordinary instance of the iuti^i-position of a Court of Equity, is by injunction to restrain the commission of waste by a tenant for life or years, upon the application of the reversioner or remainder-man : for an estate for life is always impeachable for waste, unless the contrary is expressly povided.* Injunctions also will be granted to protect the interests of a child In ventre sa 'mere f of a remainder-man, whether vested,** or contingent,' or of an executory devisee,'^ or of a tenant in common, if the co-tenant in possession is doing that which is destructive to the property.'^ And not only will the Court of Chancery grant the iniunctiou upon the 1 Booth V. Leycester, 1 Keen, 579 ; S M & 0. 459 ; set also Lu)-d Purtaflington v. ^outby, 3 M. &. K. 104; Wedderb'urn \. Wedderlmni, 4 M. .V C. is5, 5U4 ; Jonei. v Gcddes, 1 Phill, 724 ; Hendcia^n V. Henderson, 3 Hare, 100, 110 ; Famed v Roy, 3 De G. M. & G. 126; 17 Jur. 247 ; Cood \. Good, 33 Beav 314: 9 Jur. N. S. 1335. 2 As to efffcct of laebes in case's of waste, sue Aitontey-Geuei-al v. Eautlake, 11 ilare 205 , 17 Jur. 801. 3 As to waste, see Add. Wrongs, 118 ; L. C. Coilv. 110-97 ; 1 L. C. Eq. 569-fi24 ; 2 Spence Eq. Jur, 670; Stonj Eq. Jur. s. 515 ; il'ood/aU, 4 1 : anil for a collection of cases as to waste, with forms of orders for injunctions see Seton, 890-807. 4 Cole V. Peynon, 1 Chan. Kep. 106. An injunction may be granted, although the tenant holds un- der a lease renewable forever : Copplnger v. Gitbhias. 3 J . & Lat. 397. 5 Robinson v. Litton 3 Atk. 211 ; Jyutteretl's Casr, cited Proc. in Oh. 50. 6 JiosweU's Ca.HC. 1 Kolle Ah. J77 ; Tracy v. Tracy, 1 Vern. 23 ; Abraham \. llubb, I'reem. 63 ; Oarth V. Cotton, 1 Dick. 163, .03 ; Bayot v. Bagot, 32 Beav. 509 : 9 Jur. N. S. 102 . 7 Williams v. Duke of Bolton, 3 P. Wms. 268, n, (1). S Hayivard V. StUlingJleet,! Atk. 4^2, 425; Robiu^nn v. Litton, ubi sup.; and see Stanajield .. Habergham, 10 Ves. 273. » Arthur v. Lami, 2 Dr. & Sm. 428. INJUNCTIONS AND RESTRAINING ORDERS. 1653 application of the i-emainder-man iu fee, but it will also grant it upon the application of the onesne remainder-man for life : for though he has no right to the timber, which belongs to the owner of the in- heiitance,! yet, if the first tenant for life should die, he would have an interest in the mast and shade.' Upon the like piinciple, also an injunction will be granted at the suit of ground landlord, to stay waste by an under-lessee :* and an injunction has also been obtained against a tenant from year to year, after a notice to quit, to restrain hirn from taking away the crops, or sowing the land with a pernic- ioua seed, hi a manner which was contrary to the usual course of husbandry.* A Court of Equity will also restrain waste where the titles of the parties are equitable : thus, in the case of mortgages, if the mortgagor in possession should attempt to cut down timbe and the land without the timber is an insufficient or scanty security, a Court of Equity will restrain him : for, as the whole estate is a security for the money advanced, the mortgagor, under such circumstances, ought not to be suffered to lessen or diminish it.^ And so it is the dut)^ of trustees to protect the entire inheritance for the benefit of all the cestui que trustent in remainder whether vested or contingent ; and as, in many instances, the value of that inheritance consists as much of the mines and timber as it does of the land, they may, by force of their trust, have their remedy by injunction, to prevent the destruction of the one, or the exhaustion of the other.^ Under this head, we may also class those cases where persons are contracting for leases and other interests in property, which they are only in possession of by virtue of the contract : in such cases, if the plaintiff has no legar title, he lias no redress at law ; but if he has such a contract as will authorize him to call upon the Court to clothe his possession with the legal title, the injunction will be granted.'^ i Lushington v. Boldero, l.i Beav. 1 ; and see Barjot v Bat/ot, ubi .mp. 2 Dayrell v. ChmnpiKss, 1 En. Ca Ab. 400, pi 4 ; MolUneaux s'. Pmwll. Z P. Wni.s, 268, i.. (F) ; Ft rrot V. Perrot, 3 Atk. 94 ; DavU v. Leo, 6 Ves. 7S7. 3 Farrant v. Lovell, 3 Atk. 723 : S. C. nonL Farrant v. Lea, Amb, 10.5. 4 Onslow V. •, 16 Ve"!. 17.3 ; Pratt v. Brr.tt. 2 Miidd. 62 ; and see Duke of St. Albans r. Stip- with 8 Beav. 3.S4. 5 Wsbonie v. Ushorne, 1 Dick. 75 ; Wright v. At'nins, \ V. & B. 313, 314 ; Uippesley v. Spencer, 5 Mj,dd. 422 ; rlu nphre.ijs \. Harrison, 1 .J. iV \V. 531; QooAnvin v. K'uie, 8 Beav. 379 ; and see King V. Smith. 2 Hare, 23): 7 .Jiir. 694. 6 Girth V. Citton, 1 Dick 133; SianUM v, llahergham. 10 Ves. 273, 279; Pugh v. Vaiighan, 12 Beav. 817. 7 Norway v. Tioioe, 19 Ve^i. 154, 15.5. 1654 SENERALLY. The mortgagee of a term of years being in possession of the mortgaged estate, will, at the suit of the mortgagor, be restrained by injunction from felling timber on the mortgaged premises, although the mortgagee may have obtained the consent of the reversioner to what he is doing.^ A mortgage having been created on land on which was erected a steam saw- mill, the mortgagor was restrained from removing the machinery out of the mill ; although it was alleged that the property would still remain a sufficient security, as the effect of such removal would have him to change the nature and character of the mortgaged premises.^ Although the general principle is that one joint tenant will not be restrained from committing waste at the instance of his co-tenant, the rule is different where a bill has been already filed for a partition of the estate.^ The plaintiff, a mortgagee, filed his bill for foreclosure and for an injunction to restrain the vendee of the mortgagor from removing a building erected on the property. The Court thought that the building, having been actually removed, it was a proper case for a mandatory injunction, but it appearing that the building had been removed piece-meal, and that there might be difficulty in restoring it, an inquiry was directed to ascertain the value thereof, as sufficient for the justice of the case.'' An injunction will also be granted, in some cases, where the parties have both legal titles and legal remedies, but irreparable mischief would be done unless they were entitled to more complete relief than that which they would obtain at Law. It has accord- ingly been granted, where the injunction amounted in fact to an injunction to stop a trespass : for, if the Court would not interfere against a trespasser, he might go on by repeated acts of damage, which would be absolutely irremediable.-^ The original distiuction was, that if a person still living committed a trespass, by cutting timber, or taking lead ore, or digging for coal, the Court would not interfere, except so far as to give a discovery, and then an action might be brought for the value discovered ; but if the 1 Chisholm V. Sheldon, 1 Grant, 318. 2 Gordon v. Johnston, 14 Grant, 402. .3 Lassert v. Salyards. 17 Grant, 109. 4 Ujyers v. S,rutli, 15 Grant 616. 5 Deere v Guest 1 M 4; C. 616 ; Qreenhalgh v. Manchester A Birmingham Railway Company, 6 M & C 784 ■' Fooks v. Wats Railway Company, 5 Hare, 199 ; East Lancashire Railway Corn vany v ' Hatiersley, 8 Hare, 73, 87 ; Webster v. South Eastern Railway Company, 1 Sim. N. S 272 : 15 Jur. 73. As to trespass upon real property, see Add. Wrongs, 220, et seq.; and for a ool lection of cases in Equity, see Seton, 897. INJUNCTIONS AND RESTRAINING ORDERS. 1655 person died, then, since the ti-espass died with him, the Court has said it would decree an account, though the law provided no remedy. Throughout Lord Hardwicke's time, and down to that of Lord Thurlow, the distinction between waste and trespass was thus acknowledged.^ Lord Thurlow himself acted upon the same principle : saying, that the person to be enjoined was a mere stranger, and he ought to be turned out of possession imme- diately.^ In Flamang's case,^ a landlord of two adjoining closes let one of them to a tenant who took coal out of one close, and also out of the other which was not demised to him ; and it was held, at first, that the taking the coal out of the former as waste, would be re.strained, but as to the close which was not demised to him, it was a mere trespass, and the Court could not interfere ; but Lord Thurlow afterwards changed his opinion, on the ground that irreparable mischief would follow his refusal : holding, in effect, that if the defendant was taking the substance of the inheritance, the liberty of bringing an action was not the only remedy to which in equity he was entitled. The same principle has been acted on, and applied, in various other cases ;^_. and the grounds on which the Court acts in cases of this nature, appear to be as follows : — Where the defendant is in possession, and the plaintiff, claiming possession, seeks to re- strain him from committing acts of trespass or waste, the Coui't will not interfere,* unless the acts are such flagrant acts of spoliation as to justify it in departing from the general principle f where the plaintiff is in possession, and the person committing the acts complainedof is an utter stranger, not claiming under the colour of right, then the ten- dency of the Court is not to grant an injunction, unless there are special circumstances, but to leave the plaintiff to his remedy at law : though, where the acts tend to the destruction of the estate, the Court will grant it." But where the person in possession seeks to re- 1 Thmias v. Oakley, 1 8 Ves. 186. 2 Mortimer v Cottrell, 2 Cox, 205 3 Cited or referred to in 6 Ves. 147; 7 Ves. SOS ; 16 Ves. 133 ; 18 Ves, 186. 4 See judgment of V, C. Kindersley in Loimtdes v. Settle, 10 Jur. N. S 320 : 12 W. R. 399. As to an inspection in such cases, see Whaley v. Brancker, 12 W. K. 570, 595, V. C. K. .5 Hamilton v. Worsefotd, cited 10 Ves. 290. n. (c) ; Fillsworth v. Hoptoil,S Ves. 51 ; Crockford v. A Uxatuier, 16 Ves. 138 ; Jonee i'. Jones, 3 Mer. 161 ; Haigh v. JaggaT, 2 Coll. 231 ; Davenport V. Davenport, 7 Hare, 217. 6 Earl Talbot v. Hope .Scott, 4 K & J. 9G : 4 J ur. N. S. 1172 ; Neale v. Cripps, 4 K. & J. 472. 7 Mogg V. Mogg, 2 Diclt. 670 ; Mortimer v. Cottrell, 2 Cox, 205 ; Mitchell v. Dore, 6 Ves. 147 ; Earl Cowper V. Baker, 17 Ves. 128 ; Courthop'' v. Mapplesden, 10 Ves. 290 ; Best v. Drake, 11 Hare, 369. 1656 GENERALLY. strain one who claims by adverse title, then the tendency "will be to grant the injunction : at least where the acts alone either do or migh tend to the destruction of the estate.^ The plaintiff contracted with tv.o of the defendants, for the manufacture by them, of five-thousand saw logs, to be delivered at the mouth of the river Trent, for which he was to pay partly by in- stalments, during the progress of the work, and the residue when the logs should be delivered at the place designated; and at the same time, or immediately afterwards, it was verbally arranged that the logs, as they were manufactured, should be mai-ked with the plaintiff's initials, and should be delivered to him as a security for his advances, without prejudice to the agreement for their being con- veyed to the mouth of the river. The stipulated'advances were duly made, and the logs, as manufactured, were marked with the plaintiff's initials, but not otherwise delivered to him. Held, that the manufacturers could not afterwards dispose of these logs, to the prejudice of the plaintiff; and having attempted so to do, by selling and delivering them to a third person for value, but who had notice of the plaintiff"s claim, an injunction was granted to prevent their re- moval by such person.- In a suit by the original owner of land and his vendee, (to whom no conveyance had been made) the Court up- held an injunction restraining an occupant of the land, and a person to wj.om such occupant Jjad contracted to sell the timber on tlie lot^ from cutting down the timber, such occupant having gone into possession under the owner ; though it did not appear that such timber was of any peculiar value to the plaintiff, and though the affidavits were contradictorj", as to occupant having had authoritj- from the owner to sell the timber.* An ex [jarte injunction had been granted to restrain the defendants until further order from interfering with certain saw logs in the Salmon river, and which the plaintiff claimed as his, the defendant having notwithstanding obtained possession of the logs; a motion to extend the injunction so that, in effect the plaintiff might recover possession of the logs from the defendants was retained until after issues should be tried as t(i the S Jnon., cited in Mogr/ v. Mogg, 2 Dick. 670 ; 7 Robinson v. Lord Byron, 1 Bro. C. C. 58ii ; Grey v. Duke of Northumberland, 13 Ves. 236 ; Kinder v. Jnnrs, 17 Vee. 110 ; Thmnas v. Oakley, IS Ves. 184 : Lomldes v. Bettle, 10 Jur. N. 8. 226 ; rMvt.ru, Sijutif v. Cnllyer, 8 Vob. 88. 2 Fuller v. Richmond, 2 Grant, 24. 3 Lawrenec v. .Indge, 2 Grant. 301. INJUNCTIONS AND EESTKAINING ORDERS. 1657 plaintiffs property in the logs, this being disputed by the defendants.- " Saw logs cannot be intended prima facie, to be of " peculiar value " without any evidence that they are so. But they are more likelj- to be of peculiar value than most other descriptions of chattels, and specific relief may be given with respect to them in more instances than almost any other sort of chattel property. The relief however, must be applied for promptly.^ A purchaser having entered into possession under his contract, and failing to perforin his agreement, and to meet his payments after the time appointed for that purpose had arrived, was restrained from committing waste, or removing timber already cut down upon the premises in question.^ No injunctions will be granted between tenants in common, except in cases of actual destruction. Semble, but where a tenant in common of one moiety was trustee of the other under a will, and was felling timber for his, own benefit, in breach of his trust, he was enjoined from doing so, it being considered that his right of ownership in his own moiety were to be exercised in subordination to his duty as trustee of the other moiety.'' Where a strip of land was vested in the plaintiff, (according to the report of (fommissione)'s appointed to run a line between two townships), but the defendant claimed the property, and had applied to the Court of Queen's Bench to quash the report, pursuant to the statute appointing the commissioners, pending the application the defendant commenced to fell timber, alleged to be of a valuable description, growing on the strip. The Court granted an injunction to restrain such felling, until a decision or the motion pending before the Court of Queen's Beuch.^ The Court will restrain the attaching creditors of an absconding defendant from selling timber improperly cut upon land mortgaged by the defendant to the plaintifl'.'' The injunction was granted in this case, on the principle that the timber in question formed part of the security, and was specifically liable to the satisfaction of the plaintift"s clainr ; and that the attaching creditors 1 Farewell v. Wallbrldge . 2 Grant, 332. 2 Flint V. CorhiJ, 4 Grant, 45. 3 Fcrrier v. Ktjrr, 2 Grunt, 668. 4 Christie v. Saunders, 2 Grant, 670 ; but see Dou^all v Foster, post,\i. 1058. 5 Christie v. Long, 3 Grant, 630. 6 Thompso-n v. Crocker, 3 Grant, 663. 1668 OENKRALLT. stood in no better situation than the defendant Crocker himself, who could not have been permitted by such an unauthorised act to convert the plaintiff's specific lien into a mere personal remedy. One tenant in common will be restrained at the suit of a co-tenant from digging earth for bricks on tlie joint property. — E.sten, V. C, dissenting.^ On the agreement for sale of a steamboat, the vendor delivered possession to the vendee, and executed a covenant binding himself to transfer the vessel with her machinery and furniture to the purchaser absolutely, upon payment of the balance of purchase money by certain instalments. And if default were made in pay- ment of any portion thereof, it was provided that the vendor should be at liberty to resume possession of the vessel, with her machinery and furniture. The Court granted an injunction, restraining the purchaser from removing the machinery from the vessel, so long a.s any part of the purchase money remained unpaid.^ Although a mortgagor in possession will not be restrained from cutting timber for fviel, fencing and repairs upou the mortgaged pre- mises, he will be restrained from felling trees for other purposes, if it does not clearly appear that the property, notwithstanding the removal of the timber, will remain of .sufficient cash value to satisfy the mortgage debt.^ » Although the general rule is, that the mere fact of a tenant in common holding possession of the entire estate, will not render him liable to a co-tenant, who might himself enter and enjoy the pos- session with the other, and the Court will not, in such a case, inter- fere with the dealing of such co-tenant in regard to the property ; still, where the co-tenant in possession was the mother of the other co-tenants, all of whom were infants at the time of her second mar- riage, the Court, at the instance of one of the children who had attained majority, restrained the husband «,nd wife from selling or disposing of the crops of the current year, or the proceeds thereof unless they undertook to bring into Court one-third of such pro- ceeds ; but refused to interfere with the possession of the mother 1 Dougall v. Foster, 4 Graut, 319. 2 Laughton v. Thompson, 7 Grant, 30. 3 Run V Mills, 7 Grant, 14.'>. INJUNCTIUNS AND RESTRAINING ORDERS. 1659 and her husband in respect of previous years ; although as to such previous years the mother might have been accountable to her in- fant children as trustee for them.'^ Wliei'e a father in a special con- tract applies the funds derived from such contract to other contracts not belonging to such special contract, an injunction will be granted against him until the partnership be wound up, although such injunction may not have been prayed for in the original bill.^ After a decree of foreclosure, if the mortgagoi- commits waste, the Court will enjoin him, though an injunction may not have been prayed for in the bill.^ Wl^ere a mortgagor in possession was felling timber on the mort- gaged premises, the Court, at the instance of a judgment creditor of the mortgagor with an execution against lands in the hands of the sheriff, granted an injunction to restrain future cutting by the mortgagor, his servants, agents and workmen, it being shown that the property was a scanty security for the claims of the mortgagees and the amount due to the execution creditor.* The Court will likewise interfere by injunction, where the parties committing the waste, with nothing but temporary and limited interests in the subject-matter, are maliciously and wantonly abusing their legal rights to the injury of those in remainder. This is commonly called equitable waste, which may be defined to be, the commission of such acts as at Law would not be esteemed, under the circumstances of the case, to be waste, but which are so esteemed in the view of a Court of Equity from their manifest injury to the inheritance, though not inconsistent with the legal rights of the party committing them/ Thus, for example, it was held, in Leivis Bowie's case,^ that if there was a tenant for life, without impeachment of waste, he had as great a power to do waste, and to convert it at his own pleasure, as a tenant in fee or a tenant in tail had : so that, if any trees were severed from the inheritance, either by the act of the party or by the act of law, and became chattels, the whole property in them was in the tenant for life, by force of the clause. The necessary consequence of this 1 Bates V. Martin, 12 Grant, 490. 2 Thibodo v. Scoiell, 6 U. C. L. J. 117. 3 Cawthra v. McGuirc, 6 U. C. L. J. 142. -i Wason v. Carpenter, 13 Grant, 329. 6 Ab to equitable waste, see ante. 6 11 Rep. 80. 1660 GENERALLY. doctrine was, that a tenant for life without impeachment of waste, could not in any case be restrained, in Equity, from cutting timber upon the estate : for that would have been to determine that he should not enjoj^ the property which the law gave him.-' It was, however, soon found, that this extensive power might be wantonly and capriciously abused, to the prejudice of the inheritance ; and, accordingly, where a tenant for life, unimpeachable of waste, was making an unconscientious use of that power, the Court of Chan- cery assumed the jurisdiction of restraining and modelling it. Thus, it has interfered by injunction, where the tenant for life was pulling down a castle ;- or the family mansion, or farm-houses.^ It will also interfere, where he is cutting down timber of too young growth ;* or where he is cutting down trees which were planted or growing, or designedly left, for ornament or shelter.^ This principle has even been extended to plantations, vistas, avenues, and^rides;^ and to trees which are either planted to shut out an object,'' or merely for the benefit of a view.' In some of these cases, the kind of waste has been called, by the Judges, extrava- gant, humoursome waste : in others voluntary, malicious, intended waste : in others again, wanton and wilful waste. In all of them, in short, it w-as the improper and abusive exercise of a legal power, to the detriment of those in remainder, which the Court interfered to restrain ; it will not interfere in any case of permissive waste." Tenants in tail after the possibility of issue extinct, have the same powers, and are subject to the same restrictions, as tenants for life without impeachment of waste ; and it makes no difference that they are unimpeachable of waste, not by the provision of the grantor, but as a legal incident to their estate.^ 10 1 Alton T. Astjm, 1 Ve^,. S. 264, 266. 2 Vane v. Lord Bernard^ 2 Vern. 73S : S. C. /tout. Lord Bernard's Case, Prec. in Ch. 454. 3 Aston V. Aston, ubi su}}- : Smyth v. Carter, IS Beav. 7S. 4 Obrien v. Ohritn, Amb. 107 ; Chaiuberlync v. Dummer, 1 Bvo. 0. C. 166 ; and see Order iu S, C. Selon 890 ; Strathmore v. Sowet.. 2 Brn. C. C. BS., Turner v. Wriyht, Johns. 740: 6 Jur. N. S. 647 ; 2 De G. F. & J. 234 : 6 J ur N. S. 809. .1 PaekingtO'ii^ti Case, 3 Atk. 215 ; WiUiams v. Mci^aniara, 6 \-e4 70 ; Stansjkld v. Habergham, 10 Ves. 273 ; Wellesley v. Wellesley, 6 bim. 497 ; Morris v. Horns, 15 Sim. .505 ; Kekewieh v. Mar- ker, 3 McN. & G. 311 322 ; Marker v. Marker, ;'}? : 7 Jur. N. S. 720 ; Cooper v. Huhhuck, 30 Beav, 160 : 7 Jur. N y 457 : and see Isenberg v. East India House Estate Company, 10 Jur. N. S. 221 L. C. : Jackson v. Duke of Newcastle, ih. 68;?, SIO, L. C. ; Low v. Innes, ib 1037, L. C. ; Weatherly v. Ross, 1 H. & M. 349 ; Cotching v. Dasiett, 32 Beav. 101 ; 9 Jur. N. S. 590 : Jiadcliffv. Duke of Portland. 3 Giffi. 702 ; 8 Jur. ?*'. B. 1007 ; Martin v. Headon, 11 Jur. N. S. 5, V. C. K. ; Currien Compavi v CorhrU, 2 Dr. & Sm. 356 ; 11 Jur. N. .S. 719 : 13 W. tl, lll.ili, L.J.J. ; .Stokes v City Oftces Co paiiy, 11 Jur. X. S. 560 : 13 W. E. 537, v. C. W. ; Laurence v. Austin, 11 Jur. W. S. 576: 13 W. R. 9n1. M. R. ; Clarice v. Clark, 11 Jur. N. S. 914 : 14 W. R. 115, L. C. 3 Elmhirst v. Spencer, 2 McN. & G. 45 ; Oldaker \. Hunt, C Df (i. .M. & G. .376 ; 1 Jur. N. S. 7S5 ; 19 Beav. 4S5 , Attorney-General v. Luton Board of Health., 2 Jur. N. 8. 180, V. ('. W. ; Attorney- General V. Corporation of Birtningham, 4 K, & J. 52S : Manchester a.' "^hejfidd Raihrau Com- pany V Worksop Board of Health, 23 Beav. IDS : 3 Jur. N. S. 304 ; C-.>Us)nid v. Tanbrid/je Wells Improvement Commissioneis, 14 W R. 92, M. R. ; Spokes v. Banbury Board of Health, ib. 128, v. O. W. For forms of orders, see Seton, 891 : Lin^jwood v. .Sn>iroiarket Papennakmn Company, 14 W. R. 78, V. C. W. 4 Robinson v. Lord Byron, 1 Bro. C. e 588 ; tMns v. Xcmligate. 10 Ves 192, 194 ; Chalk v. fTyall. 3 Mer. 6S8 ; Seton, 991 ; and ser, as to smoke Inim flues, [Je.rry v Snuth, 1 K. & J 3S9. .. Banniiter v. Bigfies, U Jur M. S. 27o : 13 Jur \\ R :ir9. M. R. .-i., lo ancient lights, water- course.^, and other easements, see .-idd. Wronys, 62.119: Broom Cora. Law, 753-789; Dixon 54- 75; Gale, passioi ; L. C. ConT. 139-18'); f4 ; 10 Jur. 1043; Haiti's v. Taylor, i Phill. 209; 10 Beav. 7.5 ; Stevens v. Keafitnu ih. ;'.'33 ; Jtidgwai/ \. Jlnhi'rts. 4 Haro, lOti ; Buxton v. Ja-ines, 5 Ue G. iS S. SO : 16 .Jur. La ; Hi>d consent, turned into a motion for decree, see Seton, 869, No. 7. 4 Laurence v. Austin. 11 Jur. N S. .576 : V.i W. R. 981, M.R. ; but sue lUndley v. Finery, 11 Jur. N. S. 878 ; 14 W. R. 25, V.C.W. , where the plaintiff, having come in time as to part of his ease, an inquiry was directed a.s to the damages occasioned by so much of the injury as was completed previously to the fiWng of the bill ; and see Deere v. 'Guest, 1 M. & 0. 516. 1666 QEKERALLY. uuake it a fraud in him to object. A party had carried on the busi- ness of a soap and candle manufacturer for several years without any steps being taken to restrain him, after which a bill was filed for that purpose, on the ground of nuisance and inconvenience to the party complaining, the Court, under the circumstances, refuseci a motion for an interlocutory injunction, but reserved the question of costs to the hearing. Since th^ General Orders of 1853, it is not necessary for a party to establish his legal right by an action at law before coming to this Court.^ A railway company being about to construct their line of rofid along a public street, a bill was filed by the owner of the property in front of which the railroad would pass, to restr-ain the construction of the road in the manner contem- plated, on the ground, as alleged, that his proprrtt/ v:oidd thereby be c;reatli/ depreciated in value from divers causes, some of tvhich were that the property would he rendered, greatly less cJlydik from the inconvenience and danger occasioned by the rail cars running immediately in front thereof and that the present traffic is likely, through the same cause, to he diverted from that pxtrt of the road. Held, that the injury, as alleged, did not amount to a private nui- sance, and that, therefore, the party complaining was not entitled to an injunction; and, held also, that as the injury complained of was not irreparable, the Court would not, if otherwise in favor of the -plaintiff, have granted the application.^ Tlie owner of two adjoining shops leased one to the plaintifli' and the other to the defendant. The plaintiff's shop window had been so constructed as to present a side view to persons coming down the street, the object being to attract their attention and to obtain their custom for the wares displa3^ed in the shop, and the privilege was shown to be a very important one. The tenant of the adjoining shop having placed a show-case in an open space or doorway of his shop, so as to intercept the view of the plaintiff's window, was re- .strained by injunction from continuing the obstruction.^ The defendant had built a drain from his premises to a lot of which the plaintiff became lessee ; being desirous of building on this lot, he requested the defendant to stop up, or remove the drain, which the 1 liadenhurst v. Cocitf, a Grant, 139. 2 Magee v. Londcya it Port Stanley Raihcay Company, 6 (iraiit, 170. 3 Brumimll v. Wharin, 12 Grant, 284. INJaNCTIONS AND RESTRAINING ORDERS. 1667 defendant at first refused, and afterwards neglected to do. It was alleged by the defendant that the cost of diverting the drain would have been $14 only. Held, that the plaintiff was not obliged to take the law into his own hands, and divert the drain, and sue the defendant for the expense. And it appearing that the plain- tiff's building could not safely be proceeded with until the drain was stopped up or diverted, an injunction was granted requiring the same to be done.^ The plaintiff and L. " were tenants in common of an oil well ; they filled an oil tank with oil equal in quantity to 2,400 barrels, of which 1,600 belonged to the plaintiff, and 800 to the defendant, and they agreed that the oil was not to be sold under $5 per barrel; they were not partners. L., without authority, contracted for the sale of all the oil in the tank at $1.25 per barrel. Held, on a bill against the purchaser, that L. had no right to sell the plaintiff's portion of the oil; that the defendant's removal of it would be wrongful ; but that, as the oil was a staple commodity which had not any peculiar value, and as there was no fiduciary relation between the plaintiff' and L., the plaintiff was not entitled to an injunction ; and that his only remedy was an action at law.^ The Court will also interfere, by injunction, to restrain the infringement of a patenii, or piracy of a copyright. This inter- ference was originally based upon the principle that the law did not give a complete remedy to those whose property was invaded : for, if each infringement of the patent or copyright were made a distinct cause of action, the remedy would be worse than the evil. The inventors or authors might be ruined, by the necessity of perpetual litigation, without ever being able to have a final establishment of their rights ; and, in addition, the plaintiff had no means at Law of restraining the future use of his invention, or the publication of his work, injuriously to his title and interest.-' An injunction to restrain the infringement of a patent is not obtainable in Equity as a matter of course. The equitable title 1 Maaaulay v. Roberts, 13 Grant, 665. 2 Mason v. Nanis, 18 Grant, 500. 3 Hogg v. Kirby, 8 Ves. 216, 223; Harmer v. Plane, 14 Ves. 130 : Laurence v. Smitli, Jac. 471; Univerbities of Oxford atld Cambridge v. Hichardson, 6 Ves. 705, 706 : Baily v. Taylor, 1 R. & M. 73 ; Campbell v. Scott, 11 Sim. 31 ; 4 Jur. 470 ; Lewis v. FiiUarton, 2 Beav. 6. The Court may order an inspection of the alleged infringement, see Singer Manufacturing Company v. Wilson, 13 W. R. 560, V. C. W. : or an analysis : Patent Type Company v. Walters, Johns. 727. 8i 1668 GENERALLY. Hows from the legal title ; and it was formerly the practice, on opening the ease, to require the plaintiff to bring an action for the purpose of establishing his legal title ;^ but now, the legal right must be determined bj^ the Court of Chancery : unless, under the particular circumstances of the case, the Court is satisfied that the question can be more conveniently tried in a Court of Common Law.^ It is the duty of the Court to grant an interlocutory injunction, if the validity of the patent, and the fact of the infringement, are satisfactorily established.^ If, however, either or both of these facts are uncertain, it depends on the degree of doubt whether the Court will grant the injunction ; and the Court will, in such case, consider the degree of convenience or inconve- nience to the parties ; and may either refuse the injunction, refuse it on the terms of an account being kept,* or order the motion to stand over until the plaintiif' s legal title is estaljlished." Similar principles apply to cases of copyright.^ At first, the Court of Chancery would not give assistance, unless the com- plainant had a clear legal right ; but it now lends its aid when the legal title is either directly established by decision, or is appaj-ently estal'lished by usage and possession. If, however, the legal title is doubtful, the Court may refrain from interfering before it is ascertained and determined : for the equitable title fl.o\vs from the legal title ; and, therefore, where the one is doubt- ful, the other does not necessarilj- follow.' The Court also frequently refuses an injunction, wliere it acknowledges a right, if 1 Doddey v. Rintiernlei/, Amb. 403, 406. 2 Bayli.1 V. Watldns, a Jur. N. S. 1165, L..I.I ; I'oii,:./ v. Fernir, 1 De G. J. (c S. 353 : 10 Jur. N. S. 68. 3 Bridsonv. Mc Alpine, 8 Beav. 229. 4 For form of undertaking: to keep accounts, .see Setoii, 942. fi Bridson v. McAlpine, 8 Beav. 229 : Bridsoii v. Brenecke, 12 Beav. 1; and see Button v. BlM, 3 Ves. 140 ; Harmcrv. Plane, 14 Ves. 130 ; Hill v. Thompson, 3 Mer. 622; Say v. Marshall, 1 M. & C. 373 ; Bacon v. Jones, 4 M. & C. 433 ; Collard v. Allison, lb. 487 ; Sanxter v. Forster, C. & P. 302 ; ButUn v. Masters, 2 Phill. 290 ; Stevens v. Keating, ib. 333; Rogers v. Noicill, 6 Haie, 326, 339 ; 3 De G. M. & G. 614 ; 17 Jur. 171 ; Caldwell v. Vativlissengen . 9 Hare, 416 ; Smith v. Lon- don J: South-Western Railway Company, Kay, 408; Price's Candle Company v. Batiwen's Can- dle Company, 4 K & J. 727 ; Tuck v. Silver, Johns. 218 ; Gardner v. JBroadbent, 2 Jur. N. S. 1041,V.O.S.; Clark V. Ferguson, 1 GiS. ISi; Whiton v. Jennings, lX>i. & Sm. 110; S.C. nom. Whitten v Jenninqs, 6 Jur. N. S. 164 ; Eaden \ . Firth, 1 H. & M. 673 ; Davenport v. Goldberg, 2 H & M. 28i ; Beits v Neilson, 13 W. R. 804, V. C. W. : Affld. *. 1028: 11 Jur. N. S. 679, I.. JJ. For a collection, of cases in Equity, as to injimctions relating to patents, with forms of orders, see S.ton, 909-914. 6 Low V. RouUedge, 10 Jur. X. S 922 : 12 W. R 1069, V. C. K. : 11 Jur. N. S. 039 : 14 W. R. 90, L. JJ. ; Margetsoii \. Wright, 2 De G. 4: S. 420 ; Mac Rae v. Holdswarth, ib. 496 ; Norton v. Nich- ols 4 K. & J. 475 ; Bogue v. Hovhton, 6 De G. oc S. 267 ; 16 Jur. 372 ; Buxton v. JainAi, 5 De G. 'k S. 80 : 16 Jur. 15 ; Ollendorff v Black, 4 De G. & S. 209 : 14 Jur. 1080 : Cassell v. Stiff, 2 K. & J. 270 ; Jeffreys v. Boosey, 4 H. L. Ca. S16 : 1 Jur. X S. 616. For a collection of cases in Equity as to injunctions relatin^,^ to copyright, with forms of orders, see Seton, 905-909 ; and see Phillips on Copyright in "Works of Literature and Art, and in the application of Designs. 7 Ante. INJUNCTIONS AND RESTRAINING ORDERS. 1669 the conduct of the party complaining has led to the state of things which occasions the applications ;^ and an injunction has also been refused, where the matter which was the subject of the alleged piracj'- formed but a very inconsiderable part of the defen- dant's work : so that the damage done to the plaintiff might be calculated in a few hours.^ There must be separate bills upon each distinct invasion of a patent or copyright : unless there is a privity between the parties who have infringed the invention or pii-ated the work ^ There must be also an affidavit of title, when the injunction is applied for ex ^:i(xrfe, or the plaintiff's legal title is denied. In the case of a patent, the party making the application must s^vear as to his belief, at the time of making it, that the invention was newly inti'oduced into the country :* for although, when he obtained his patent, he might, very honestly, have sworn as to his belief of such being the fact, yet circumstances may have subsequently intervened, or information been communicated, sufficient to convince him that it was not his own invention, and that he was under a mistake "wdieu he made his previous declaration to that effect.'' It "would greatl}^ exceed the limits of our present inquiiy to discuss the general rights of inventors and authors ; or to state the circumstances under which an exclusive property, in virtue of these rights, may be acquired or lost ; but, in examining those occasions in which injunctions will be granted, it is to be remembered that the Court will not interfere when the work is of a cleaiiy irre- ligious, immoral, libellous, or obscene description. If an action cannot be maintained, nothing can be done in a Court of Equity : which is only ancillary to the law ; and, therefore, it will not give 1 Platts V. Button, Itl Ves. 417; S. C. nom. Platts v. Button, IJ. Coop. 303; Rundcll v. Murray, Jio. 311 ; Saunders v. Sinith, 3 M. & C. 711. 2 Baily V. Taylor, 1 11. & M. 73 ; Whittinghaot- v. Wooler, 2 Swanst. 42S. 3 DUly V. Doiy, 2 Ves. J. 4S6. The plaintiff must not, however, act oppres.sively, and file an unneces- •sary number oHbilLs; if lie doe.s.the Court will order ttieni to be consolidated, or make «umo other equivalent order : Poxwell v. Webster, 10 Jur. N". S. 137 : 12 W. R. 186. L. C. ; 2 Dr. & Sm. 250 : 9 Jur. N. S. 1189; ante, i Mayer v. Spence, 1 J. & H. 87 : 6 Jur. ISf. S. 672 ; Whiltoa v. Jennings, 1 Dr. & Sm. UO, 111 : S. C. Wkitten V. Jennings, 6 Jur. N. S. Iti4. e Ilillv. Thompson, 3 Mer. 622, 024 ; Sttirz v. De la Rue, .i Ru.ss. 322, 328; 1670 GENERALLY. relief, except where the, law will give damages. ^ Not only wiU. the Court refuse to interfere, when it plainly sees that the work is obscene or immoral, but even if there is a doubt as to its evil tendency, an injunction will be refused f and it may be laid down, as an universal rule, that where there is any doubt as to the exclu- sive legal title of the party claiming an injunction in aid of it, the Court will not exercise the jurisdiction, without giving an oppor- tunity of trying such title.'* At times, there is considerable difficulty in determining whether a work is pirated or not : for instance, it is allowable to make a bona fide extract, quotation, or abridgment, oi- a bona fide use of common materials, in the composition of another book :* for a man may fairly iadopt part of another's labours in making an extract or quo- tation, but he must not do it unfairly, or, as Lord EUenborough termed it, anivio furandi. So he maj'' abridge, if the invention, learning, or judgment bestowed in making that abridgment will really constitute a new work ; but he must not do either, in a colourable manner, to gain an advantage to himself by a fradulent evasion of the statute.^ So, in the case of a map or road-book, the Court will interfere to prevent a mere republication of a work which the labour and skill of another person had supplied to the world. The piracy, on such occasions, is frequently detected by the identity of the inaccuracies and errors f and the question, whether one author has made a piratical use of another's work, does not necesarily depend upon the quantity of that work which he has quoted or introduced into his own book.'' The Court usually takes upon itself the task of inspection ; and compares the work of the original author with the work alleged to be pirated; 8 but an inquiry may be directed whether the books differ, and in what respect. 1 Lawrence t. Smith, Jac. 471 ; Hime v Dale 2 Camp. 27, n. 2 Walcot V. Walker, 7 Ve.s. 1 - Southey v. Shenvood, 2 Mer. 435, 4.38 \ Burnetii. Chetwood, ib. 441, n. 3 Bramwell v. Halcomi, 3 m! & C. 737 ; Spottisicoode v. Clarice, 2 Phill. 164 ; 1 C. P. Coop. t. .Cott. 264 : 10 Jur. 1043. 4 Short abridgments are allowed : BM v. Walker, 1 Bro. C. C. 451 ; Gyles v. Wileox, 2 Atk. 143. 5 Butterworth v. Jiobimon, 5 Yes. 709 -.Longimanv. Winchc!,ter,lQ'Ve8. 269 ; Matthewsonv. Stockdale, 12 Ves. 270 ; Wliittmgham v. Wouhr, 2 Swanst. 428 ; Wilkins v. Aikin, 17 Ves. 422 ; Saunders v. Smith, 3 M. A C. 711 ; Lewis v. FuUarton, 2 Beav. 6 : Spottviwoode v. Clarke, ubi sup. ; Jarrold V. Hoidston. 3 K. & J. 708: S .Jur. 1051 ; Hotten v. Arthur, 1 H. & M. (i03. 6 Cary v. Fadden, 5 Ves. 24. and see Longman v. Winchester, iibt su2J. 7 Bramwell v. Ualcomb, ubi sup. ; Mun-ay v. Pogv, 1 Brew. 3.^3. 3 See Whittingliain v. M'ooler, Swanst. 428 ; Jarrold v. Uoulston, 3 K. & J. 708 : 3 -Jur. N. S. 1061. INJUNCTIONS AND RESTRAINING ORDERS. 1671 The injunction, when issued, restrains the publication of those parts which are found to have been pirated.^ Where, however, the Court, availing itself of the evidence read pending the motion, was led to conclude, that if the parts affected with the character of piracy were taken away, there would be left an imperfect work which could not, to any useful extent, serve the purpose intended by the publication, the injunction, to restrain the publication of any parts pirated from the plaintiffs work, was granted, without wait- ing till all the parts pirated could be distinctly marked."^ And, in general, if the parts pirated are so mingled with the original portions of a work that they cannot be separated, the Court will enjoin the publication of the whole : although a very large pro- portion of the work may be unquestionably original. Upon this subject, Lord Eldon observed, that " He who has made an improper use of that which does not belong to him, must suffer the consequ- ences of so doing. If a man mixes what belongs to him with what belongs to me, and the mixture be forbidden by the law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion. If an individual chooses, in any work, to mix my literary matter with his own, he must be restrained from publishing the literary matter which belongs to me ; and if the parts of the work cannot be separated, and if by that means the injunction which restrained the publication of my liter- ary matter prevents also the publication of his own literary matter, he has only himself to blame. "^ By analogy to the principle upon which the Court proceeds in cases of copyright, it will also interfere to restrain the publication of manuscript treatises, or private letters which bear the character of literary composition. This was established with regard to manu- scripts in Mr. Webb's and Mr. Forrester's cases : the former of whom had his Precedents of Conveyancing stolen out of his chambers ; and the latter had his notes copied by a clerk to the gentleman to whom he had lent them:* in both instances, the printing and publishing them was restrained by injunction. The same protection was 1 Carnan v. Bowles, 2 Bro. C. 0. 80 ; v. Leadbetter, 4 Ves. 681 ; Jeffery v. Bowles, 1 Dick 429 : Mawgan v. Tegg, 2 Russ. 885. 2 Lewis V. Fullarton, 2 Beav. 6. 3 Mawgan v. Tegg, 2 Russ. 38S, 391 ; and see Jan-old v. Houhton, 3 K. & J. 708 : 3 Jur. N. S. 1051. 4 Webb V. Rose, cited 2 Bro. P. C. ed. Toml, 138 ; Forreater v. Waller, cited ib. : Bun: 2331 ; and see Sottthey v. Sherwood, 2 Mer. 435. 167"2 GENERALLY. extended to Lord Clarendon's Historj^, a copy of which had been given by his son to Mr. Gwynne : for it was not to be presumed, from such a gift, that he was to have the profits of multiplying it in print, although he might make every use of it except that.^ Upon the same principle, the publication of works of art, which the author thinks proper to keep private, or even of a catalogue describing them, will be restrained.^ Letters which bear the character of literary compositions must be treated as within the laws protecting the rights of literary pro- perty ; and a violation of those rights is affected with the same consequences as the publication of a treatise in manuscript. Upon this ground Pope's, Swift's and Lord Chesterfield's Letters have all been protected by means of an injunction f but a question has been raised, and a doubt suggested, how far the like protection would be given, where the letters published did not fall, in strictness, within the terms of literary compositions. It is now, however, settled that the writer of a letter has a joint property in it, with the person to whom it is addressed. The receiver has a special property in it ; but no more : it is a gift to him for the pm-pose of reading, and in some cases for the purpose of keeping it ; but ultra the pm'poses for which it was sent, the property of the letter remains in the sender: which being so, it cannot be published without the writer's con- sent."* And it is immaterial whether the publication is made with a view to profit or not : if for profit, the party is then selling ; and if not for profit, he is then giving that of which a portion belongs to the writer." But, notwdthstandiug this right of jpi'operty, the conduct of the plaintiff may be such as not to entitled him to the interference of the Court. Thus, the plaintiff was left to his legal remedy, where he had held the defendant out to the public as a persou giving false intelligence upon sj)urious- authority, and the intelligence had come from the plaintiff" himself : as was proved and confirmed by several letters which formed the subject of dispute." 1 Duke ofQvfen'^herrv v. Shehbeare. 2 Eden, 329. 2 I'rii.a' Albert v. St'rame 1 McN .V G. 26 : 13 Jur. 109 ; 2 De G. & S. 652. 3 Ptype V. Cvii, 2 Atk. 342 ; Thompson v. Stanhope, Amb. 737. 4 If the solicitor of a company writes a letter apparently on behalf of the company, be is not entitled to prevent it.'< publication, although he swears it was written in his private capacity ; Howard 7. Gim/l, 32 Beav. 462. 5 Earl o/ Qranard v. Durikin, 1 Ball & B. 207; Pope v. Curl, 2 Atk. 342; Gee v. Pritchard, 1 Swanst 402. 6 Lord and Lady Perceval v. Phipps, 2 V. & B. 19. INJUNCTIONS AND RESTRAINING ORDERS. 1673 Injunctions will also be granted to restrain infringements of the right to the title of a book or periodical.^ A similar jurisdicition exists in Equity to restrain, by injunction, the improper use by one man of the name or trade-mark of another, and is exercised upon similar principles to those which ' are applied in eases of copyrights, patents, and other rights of a similar description. But it rests upon property, and not upon the fraud on the public ; and, therefore, will not be exercised, unless it appears that the plaintiff has sustained, or is likely to sustain, pecuniary loss from the acts complained of.- Any article of manufacture, not protected by patent, may be made and sold by any person ; and that too by the name given to it by the inventor.'^ But a man has no right to sell his own goods or manufactures, under the pretence that they are the goods or manufactures of another. He cannot, therefore, be allowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person. Hence there arises so much of a property in a name or mark, that the Court will interfere by injunction against a person using the name or mark of another, even though there be no intentional deception.* A party professed to sell the secret of a preparation called " -Jones' Patent Flour " and became bound not to disclose the 1 Hogg V. Kiiby, 8 Ves, 215 ; Prowett v. Mortimer, 2 Jur. N. S. 414, V. C. S. : Clement v. MacUielc, 1 Giff. 98 ; 5 Jur. N. S. 692 ; Ingram v. Stiff, 5 Jur. N. S. 947 ; and see Bradliury v. Dickens, 27 Beav. .">3: Corre-fpondent Ifewspaper Company v. Sauilders, 11 Jur. N. S. 540: 13 W. li. 804 V C. W. 5 Webster v. Webster, 3 Swanst. 490, n. ; Martin v. Wright, Siui. 297 ; Ronth v. Web!,ter. 10 Beav. SBl ; Clark v. J-'rreiiian, 11 Boav 112 , Kd.'l^t^n v. Edelsten, 1 l)e G. J ^ S. 185 ; 9 Jur. N S 47!) ; Batty v. Hill, 1 H & M. 2U4 : Uall \. Barroms, 9 Jur. N. S. 483, JI. R. : 10 Jur. N. S. .'):".. L, C; Leather Cloth Cmnpumi v. AiiicriMi; Leather Cloth Cooipaiiy, 11 Jur.- X S. 513 : 13 W. K. 873, H. of L. ; 10 .hw. K ,S. SI . 12 \V. R. 289, L, C. ; and >'ae Kmp^'ror of Austria v. Bay, 3 De G. B\ & J 217 : 7 Jur. X S «.!9 ; 2 (Jul l&i : 7 Jur N. S 433 S Blanchard v. Hill, 2 Atk. 4S4 ; }'(.»,!;; i- Jfarrue, 9 Jur. i^. S. :'.22, V. G. W. 4 Per Lord Tyin^dale, JTi I'C'-ni v, Trar/itt, (i Beav. 73 ; and see jMilliiiiii^ii r. Fox, 3 M. ;■; 0. 338 ; Motlei/ V. fJowiitaan, 3 M, & i_\ 1 ; Gn/it v. Aleplogiu, (I Hea\- 09. n. , i''i uuas v. Wearrr, 10 Beav. 297 ; Shrijnptou v. Laitjht, Is Bear. 164 ; Rodg,r-i v. Svirill, Haro, 32") ; 3 De G. M. to G. G14 : 17 Jur 171 ; Buniess \ Bar'/ess, :; Do G. JI. & G .S9H : 17 Jur. 292 ; Colli, is Coinpa'm/ v. Brown, 3 IC & J 423 ; 3 .Jur. N S. 92'l ; Farina v Sdoerloci, 4 K. & J. (J.'.u ; .'i Uu (4. U. & f:!.'214 : 2 Jur. N. S. 10U8 ; Welch v. Ka,oif. 4 K. it J. 747 ; Churton v. IJoaylas, Johii.s. 174 : 5 Jur. N. S. 887 ; Den,t V. Turpin, 2 J. & H. 139 . 7 Jur. N. S. (i73 ; Woollam v. R:(ti:lilf, IV.. la JI. 2,'i9 ; Batty v. Eill, ib. 284 ; Graham v. Biist.ard, ih 447 ; Cartier v. Carlile, 3! Beav. 292 : 8 Jur N. S. 183 ; Edelsten v. Edelsten, and Hall v. Barrous, ui>i sitp. ; Burn v. Brd/ord, 9 Jur. N. S. 95(j, M. R. : 10 Jur. N. S. 503, L. JJ. : Colonial LiJ^ Assurance Company v. llome J- Colonial Company, 33 Beav, 548 : 10 Jur N. S. 907 ; McAndrew v. Bassett, 10 Jur. N. S. 492, V. C. W. ; ib. hM : 12 W. R. 777, L. 0. ; Banks v. (-iihson, 11 Jur, N S. 180 : 13 W. R. 1012, M. (t ; Ponsardin v /'eto, 33 Beav. 642 ; Glenny v Sniitli, 2 Or. l^ S. 470; Leather Cloth Company v. American Leather Cloth Company, 11 Jur. N. S. 513; 13 W, R. 873, H. of L. For the principles on whieh an account is directed in such cases, see Mart v. Couston, 33 Beav. 578 : 10 Jur. N. S. 1012, M. R. ; Harrison \ Taylor, 11 Jur. N. S. 408, V. C. W. ; and for a collection of cases as to injunctionsrespecting trade* marks, with fonns ef orders, see Scton, 914—917 1674 GENERALLY. secret to any other person in Canada, nor make use of it himself, except at the instance of and for the benefit of his vendees ; not-, withstanding he afterwards commenced selHng a similar article done up in bags bearing a general resemblance to those of his vendees, although differing in some minute particulars, and led parties purchasing it to believe that it was the same article. The Court granted an injunction to restrain him from selling the same preparation, or any other preparation done up in such a manner as to lead the' public to suppose that it was the same article, and from representing it to be such, although it was sworn by the vendor that the preparations were not the same.-" The plaintiff had duly registered under the Statute as his trade mark in the manufacture of Soap, the word "Imperial" with a star following it : the defendant in his manufacture of Soap put on his boxes the words " Imperial Bibasie Soap." An injunction was granted restraining him from using the word " Imperial " as being a portion of the trade mark of the plaintiff.^ The plaintiff carried on businessin the City of L. having for his sign a figure of a gilt lion, and designating his place of business " The Golden Lion " ; the defendant for some years had had the conduct of this business, and having determined on commencing on his own account the same line of business, opened a shop in front of which he placed a figure somewhat similar to that used by the plaintiff. The Court on the application of the plaintiff restrained the defendant from using as a sign, this or any similar figm'e.^ Plaintiff sold liquid medicine put up in bottles labelled "Perry Davis's Vegetable Pain Killer " : defendant subsequently sold a similar kind of medicine put up in bottles labelled " The Great Home Eemedy, Kennedy's Pain Killer." Plaintiffs claimed the word " Pain Killer " alone as their trade mark. It was proved that the medicine of plaintiffs was known and sold in the market by the name of " Pain Killer " before the defendant's was introduced and that the trade would not be deceived by the defendant's labels^ although the general public might be deceived. An injunction was 1 Whitney v. Hickliiig, 5 Grant, 605, 2 Crawford v, Shuttock, 13 Grant, 149. 3 Walker v. Alley, 13 Grant, 366. INJUNCTIONS AND RESTRAINING ORDERS. 1675 granted, resti Mining the use by the defendant of the word "Pain Killer " as a trade mark, with an account of profits, and costs.^ The plaintiffs filed a bill to restrain the use of a label which, they alleged, was an infringement of their trade mark, or of any other label which resembled the same. The defendant admitted that the label he had used was an infringement, but he said that he had discontinued the use of it before suit on hearing that the plaintiffs complained of the label, and that after suit he informed the Solicitors of the plaintiffs of this discontinuance, disclaimed all right of using the label, and was ready to account for the profits he had made, and to pay the costs of the suit. The plaintiff's Solicitors declined to discontinue the suit ; and, the defendant hav- ing put in his answer, the plaintiff brought the cause on for hear- ing upon bill and answer. The defendant not disputing that his label was an imitation of the plaintiff's, or that he was aware of the plaintiff's property in their label, an injunction was granted against using the label complained of, or any other label similar to, or resembling the plaintiff's ; and the defendant was ordered to pay the costs of the suit.^ Hiram Piper, and Noah Piper carried on business under the name of " Hiram. Piper X- Brother." They afterwards dissolved partnership, and each carried on like business in his own name. Subsequently Hiram assigned his business to the plaintiff, with authority to carry it on in Hiram's name, and then two sons of Noah Piper carried on a si»milar business next door, under the firm of "H. Piper d: Co."" Aninjunction to restrining the use of that name was refused.^ A cigar manufacturer, to dis- tinguish his cigars from others, called them " Cable Cigars," and afterward adopted a method of stamping on each cigar, in bronze, an elliptical figure, with the name '" S. DAVIS," and the word " CABLE " within the same. A rival firm, two years afterwards, adopted the same method, using for the purpose a trade mark identical with this, exce2:)t that they substituted their initials " C. P. E. & C." for the other's name, and the word " CIGAE " for the word '"CABLE." It was proved that persons had bought these cigars supposing them to be the Cable stamped cigars. Held, that 1 Davis V. Kennedy, 13 Grant, 523. 2 Radway v. Coleman, 15 Orant, 50 ; and see Brockington v. Palmer, 18 Urant, 4^8. 3 Aikenfi v. Piper, 15 Grant, 581. 1676 GENERALLY. the manufacturer of the Cable cigars was entitled to an injuncrion to restrain the other parties from using the trade mark which they had so adopted^ With respect to these cases, it may be observed, that the remedy given in Equity will be withheld, if there has been any improper conduct on the part of the plaintiff. On this principle, the Court will refuse to grant an injunction, where the plaintiff has made false representations to the public concerning the article which he seeks to protect.^ By the Trade Marks and Designs Act of 1861— (24 Vic, ch. 21.) Further remedies are given for the infringement of trade-marks ; but it is j)i'ovided, that nothing tlierein contained is to take away or prejudicially affect any remedy at Law or in Equity. Injunctions may also be granted to restrain corporations and other public bodies from committing acts which are idtra vires, or from appropriating their property for purposes other than those for which they were constituted, or to prevent the excessive or undue exercise by them of parliamentary powers. Instances of such interference are of very frequent occurrence ; but are too numerous to be referred to in detail within the limits of the present Treatise.' 1 Davi'i V. liekf, 17 Grant, O'.K 2 Perry v. TnteJUt, 6 Beav. 0(i ; J'idUUng \. II(w\ 3 Wiin. 477 ; Flavt'l \ Ilarrlsoii, 10 Hare, 467 : 17 Jur. 3US ; Leather Cloth Compatvf v Aincyitini hrather ClothCouqjatiy, 10 Jur. N. S. 81 : 12 W. R. 239, L C, ; 11 .lur. N. S. 513 : 13 W. K. 87:;, H of L. ; and see Jideb-t",: v. Vkk, 11 Hare, 78. 3 See cases collected in Seton, 92G, et .w.vy ; '.>21>, r/ neq. ; and forms wf orders, 1)25, et neq. ; 028, et neq.; and for the sub.^cquent cases, see Snup>:on \. ]t'c.';t_iin'n.':ter Palace' Ih'tei Coiitjicmu, SH. L-. Ca. 712 : IJ Our. V. K. li.i', ; 2 De Ci. F. & J 141 . i. .Jur. N. S. 7(J4 ; il: 747, V. C. W. , Stockton <0 Darlington 'itoihraii OoMpuini v. llroicn.» H. L. Ca 2.1(j : 6 .lur. M ,K. llfiR ; J^util v Isle of Wkjht Fcrnj Coiiiponij, IN. I; 13, V. () W ; \Y,idoi:,rr v. Mayor, d:c., i-j Dri>.t>d, 11 V.' il. 130, V. O. S. ; Maun^'Ul v Molluii.l Great \Ve^f,-ni Ra.ilit)a>i (of Ireland) Coinpaai/, 1 H. & M. 130 : 1) Jur :rih'fao Hoard of Warlcs, 1 H. & M. 298 ; ,S';i.(T.,,it- v Great Sortk-irii Itailwa'ij Coiiipami, 10 Jur N. K. 191 : 12 V,' R 391, L JJ. ; 9 Jur. N. S 1196, V. C. W. ; Slo^ey v. lUelrupolUan Board of Ifor/.s, 10 Jur. N. S. 333 : 12 \y K. 619, \'. C. \V. ; Roje,.^ v. Uull Dock Co,np(. ^s; G. 417 ; Ilnlhui-ay V. HoUowai/, 13 Beav. 209 ; Morrison v. Moat. '.> II;ire, 241 : l.'> Jur. V8V ; l(i Jui-. 321, L..JJ. 2 Newiery v. Jr/ntes, 2 Mer. 446. 3 Follett V. Jeffreijes, 1 Sim. X S. 1 ; Gart.iig,- v Ovtrani, 3 Jur. .N' .S. S'.\ V C. W. 4 Sviitli V. Hdytwell, Amb. 6G ; Llot/d v. Gurdon, 2 Swansl. 180 ; Patrick \. Ilarrimn, 3 Bro. C i' 476 ; Lord Portarlington v. SotUby, 3 U. & K. 104 ; Earl of Milllown v. Stewart, 8 Sim. 371 ; :' M. & C. 18 ; Quarrier v. 'Colston, 1 Phill. 147 ; Mailland v. Backhouse, 10 Sim. 58 ; 12 .Jur. 45, L. G. ; Espey v. Lake, 10 Hare, 260 ; and for a collection of ca,«es and forms of orders, see i^eton, 918 919. 5 Smith T. Aykwell, 3 Atk. 586 ; Hood v. Aston, 1 Russ 412. 1678 GENERAl.LY. paid a value for it, yet, if the endorsement • under whicli he received it is a forgery, it is the same thing as if there was no indorsement of it, and then he is not in truth the holder of it : for he has no title by indorsement, and that was the only way by which he could obtain a title to it.^ By an Act of the Provincial Legislature, 'the town of St. Catha- rines was authorized to issue debentures to the amount of £45,248, for the liquidation of which, a special rate was directed to be levied, the proceeds of which were directed to be invested, and form a sinking fund for this purpose ; by the same act the town was pro- hibited from passing any by-law to create any new debt extending beyond the year in which such by-law was passed, except for the construction of water works, until the debt was reduced to £25000. The special rate authorized to be imposed had been duly levied and collected, but instead of investing the same to form a sinking fund for the payment of the debentures, it was alleged, it had been applied to the general purposes of the Town, and the debt had not been reduced. The defendants denied the misapplication of the fund, but did not shew how it had been applied ; and with a view of inducing the County Council to remove the County Town of Lincoln, from Niagara to St. Catharines, the Town Council of St. Catharines, without any by-law authorizing the same, contracted with certain builders to erect a gaol and court house for the use of the County, at an outlay of ,£3000, to be completed in two years. Upon an application made at the instance of certain of the holders of the debentures under the before mentioned Act the Court restrained the Town of St. Catharines from suffering or permitting the buildings to be proceeded with. On an appeal to the full Court the injunction was dissolved, it appearing that the contract which had been entered into between the corporation and the contractor had been cancelled, and that no liability had been incurred by the corporation extending beyond the year ; but if it had been shown that any Act of the corporation would have had the effect of incurring a liability payable in a future year, the injunction would have been retained to the hearing. On pro- duction of the contract in Court, it appeared that the rescission 1 Esdaile V. La Nau^e, 1 Y. & C Ex. 394 ; and .-lee Thiedemann v. GoUKchiuiilt, 1 De G. F. & J. -4- INJUNCTIONS AND RESTRAINING ORDERS. 1679 referred to had been effected by cancelling the signatures to the docu- ment, which being objected to as not legally Aiacharging the corpora- tion from liability the Court, as a condition of dissolving the injunc. tion, required a formal cancellation of the contract to be made. (Vankoughnet, C, dubitante as to any necessity therefor.^ ) Upon a like principle, the Court will interfere to restrain the transfer of stock, or the payment of dividends, or the sale of specific chattels, where the title to the stock is controverted between principal and agent f or where it is proposed to pay the dividends on erroneous principles :^ or where it is necessary to protect the enjoyment of specific chattels, which cannot be the subject of com- pensation in damages.* The Court, acting upon the principles above pointed out, will also grant an injunction to restrain a party from making vexatious aliena- tions of the subject-matter of the suit, pendente lite} It will, there- fore, enjoin a vendor from conveying the legal title to real estate, pending a suit for the specific performance of a contract for the sale of that estate ;^ but it will not interfere in this manner, before the hearing, if there is any serious question whether any contract exists between the parties.^ In like manner, sales may be restrained in all cases where they are inequitable, or may operate as a fraud upon the rights or inter- ests of third persons : as in cases of trusts and special authorities, where the party is abusing his trust or authority f and where sales have been made to satisfy certain trusts and purposes, and there is danger of a misapplication of the proceeds, Courts of Equity will also restrain the purchaser from paying over the purchase-money. * 1 Edinburgh Life Assurance Company v. St. Catharines, 10 Grant, 379. 2 Lord Chedworth v. Edwards, 8 Ves. 46 ; but see Cox v. Paxtons, 1 Madd. Ch. Pr. 2nd ed. 166 ; 3rd ed. 215. 3 Beeve v. Parkins, 2 J. & W. 390 ; Sturge v Eastern Union Railviay Company, 1 De G. M. & G. 169: 1 Jur. N. S. 713; Benrii y. Great Northern Railway Company, 4 K. & J. 1 ; 3 Jnr. N. S. 1117; 1 De G. & J. 606 ; 3 Jur. N. S. 1133. 4 Lady Arnndell v. Phipps, 10 Ves. 139 ; Wood v. Rowclife, i Phill. 382. 5 Daly v. Kelly, 4 Dow, 440 ; PomeU v. Wright, 7 Beav. 444, 462 ; Rhodes v. BucUand, 16 Beav. 212, 219 ; and see Turner v. Wight, 4 Beav. 40 ; Great Western Raihoay Company v. Birmingham d- Oxford Railway Company, 2 Phill. 597 ; Shrewsbury ig V. Armstromi, No. 1, 21 Beav 71: 1 Jur. N. S. 869, 860; Be Mattos v. Gibson, and Sevin v. Beslandes,ubi sup.; Orr v. Dickenson, Johns. 1 ; Ilolderness v. Lamport, 29 Beav. 129 : 7 Jur. N. S, 564. For a collection of cases as to injunctions resiiecting ships, with forms of orders, see Seton, 932 — 936. 6 IJaly V. Goodson, 2 .Mer. 77 ; Christie \. Craiij, ib. 137. 7 A iwn. 1 "\'es J. 9:1. INJUNCTIONS AND RESTRAINING ORDERS. 1681 Law.^ Thus, in the old ease of the parish bell, where certain per- sons, owning a house in the neighbourhood of a church, entered into an agreement to erect a cupola and clock, in consideration that the bell should not be rung at five o'clock in the morning to their disturbance : the agreement being violated, an injilnction was afterwards granted to prevent the bell being rung at that hour. - Upon the same ground, a celebrated play-writer, who had covenanted not to write any dramatic performances for another theatre, was, by injunction, restrained from violating the covenant.^ So an author, who had sold his copyright in a work, and covenanted not to publish any other to its prejudice, was restrained by injunction from so doing ; * and an actor will be restrained from performing in violation of an agreement.^. Upon the same principle, an injunction will be awarded, to restrain the erection of buildings in breach of a covenant not to build in a particular manner, or on a particular site.; ^ and it is not necessary, in order to justify the interference of the Court, that the covenant should run with the land.'' * Injunctions have also been granted to restrain a person, who has covenanted not to exercise a certain trade within certain limits, from exercising such trade within the prescribed limits.^ It is, however, quite settled that the mere sale of the goodwill of a busi- ness does not imply a contract on the part of the vendor not to set up a similar business, nor restrict him as to the place of carrying on that business.^ The plaintiff purchased the defendant's business as an exchange broker at Kingston, and the latter agreed not to go into the business 1 For cases and forms of orders, see Seton, 'J21-- 92r>. ■2 Martin v. Nutkin, 2 P. Wms 206. 3 Morris v. Cohnan, 18 Ves. 4.i7 ; Clarke v. Price, 2 Wils. 157. 4 Barjield v. Nicholson 2 S. & S 1; Colburii v, Sitiims, 2 Hare, r>4:}, 5 Lianley v. Wagner, 6 De G. & S. 485 : 1 De G. M. ,t G. 604 ; 16 .Jur. 871 ; Webster v. rjilluit, o Jur. N. S. 432, V. G. W. : contra, Kenible v. Kcan, 6 Sim. 333; see also Fcchter v. Montgo}/iery, 33 Beav. 22. 6 Rankin v. lluskisnon, 4 Sim. 13 ; Patching v. Dubbinn, Kay, 1 : S. C. ii.oin. Patching v. (Jubbinn, 17 Jur. 1113 ; Coles v. Sims, Kay, 56; 5 De G. M. it G. 1 : 18 Jur. 683 : Puiott v. Stratton, Johns. 341 ; 1 De G. F. & J. 33 : 6 Jur. N. S. 129 ; Lloi/d v. London, Chatham i- Dover liallmo/ Com- pany, 11 Jur. N. S. 380 ; 13 W. R. 698, L.JJ. 7 Tulk V. Moxhay, 2 Phill. 774 : 13 Jur. 89 ; 11 Beav. 571 ; Moxhay v. Inderwick, 1 De G. & S. 708 ; Wilson V. IJait, 11 Jur. N. S. 736 : 13 W. E. 988, V. 0. W. 8 WiUiams v. Williams, 2 Swanst. 253 ; Smith v. Mules, 9 Hare, 556 ; Simpson v. Chapman, i De G. M. & G. 154 ; Charton v. Douglass, Johns, 174 : 5 Jur. N. S. 887 ; Clarkson v. Edge, 83 Bea" 227 ; Fox V. Scard, ih. 327 ; and see Sainter v. Ferguson, 1 lIcN. Si G. 286 : 14 Jur. 255. 9 Churton v. Dauglas, vM sup.; and see cases cited 2 Swanst 2.'i4, n. (a). 1682 GENERALLY. there again. The plaintiff afterwards sold out to one C. and entered into a like agreement with him ; held, that the plaintiff after this sale had not such an interest in the contract with the defendant as entitled him to an injunction, and that his remedy, if any, was at law.^ The defendant sold to the plaintiff the good- will of the business of an innkeeper, which he had carried on under the name of "Mason's Hotel,"' or "The Western Hotel," — he afterwards resumed the business under the same name and in the same premises, and represented to his old customers and the public that the business so resumed was the identical business sold : Held, that though in the absence of any express covenant the vendor would have been entitled to engage in a business similar to that he had sold, yet he was not at liberty to represent the new business as the same identical business as the old : Held, also that a covenant in the agreement that the vendor should pay $4000 in the event of his carrying on business as in innkeeper, within ten years, did not affect the purchasers' right to an injunction ; nor did the circumstance of their having removed to other premises. ^ Several incorporated companies and individuals engaged in the manufacture and sale of salt extered into an agreement whereby it was stipulated that the several parties agreed to combine and amalgamate under the name of " The Canadian Salt Association "for the pm'pose of successfully working the business of salt manu- facturing, and to further develope and extend the same, and which provided that all parties to it should sell all salt manufactured by them through the trustees of the association, and should sell none except through the trustees. Held, on demurrer that this agreement was not void as contrary to public policy, or as tending to a monopoly, or being in undue restraint of trade ; that it was not ultra vires of such of the contracting parties as were incorporated companies, hut was such in its nature as the Court would enforce.* ^ Where bankers had sanctioned an arrangement entered into by certain persons, copartners, who were indebted to them, whereby it was agreed that, upon the retirement of one of the copartners, 1 Jones V. Wooley, 16 Grant, i06. 2 Mossop V. Mamn, 16 Grant, 302. 3 Ontario Salt Company v. Merchant'.'^ Salt Covipany^ 18 Grant, 540. INJUNCTIONS AND RESTRAINING ORDERS. 1683 (the plaintiff,) the assets should be transferred to the continuing partners, who were to take upon themselves the partnership lia- bilities, and that the bankers should release the plaintiff, who was the retiring partner, from his liability to them, but they afterwards attempted, by means of the debt, to make the retiring partner a bank- rupt, they were restrained from so doing by injunction.^ And so, an injunction has been awarded, to restrain the publica- tion by the defendant (in violation of his agreement,) of the fact that the plaintiff had consented to a judgment being entered up against him by the defendant.- Injunctions have also been frequently granted, to restrain lessees, who had convenanted to keep the banks of rivers or ponds in repair, from destroying or impairing them ; ^ or an outgoing tenant from removing dung or crops, contrary to express covenants con- tained in his lease ; * or to restrain the ploughing up of meadow land ; ^ and in one of the earliest cases upon this subject, an injunc- tion was granted till the hearing, by the House of Lords, upon appeal, to restrain a lessee from digging sand and gravel, in viola- tion of a covenant, secured by a penalty." A lessor demised property for a term of years, with a stipulation that the lessee would not carry on any business that would affect the insurance ; the lessee made an under lease, omitting any such stipulation, and the under lessee commenced the business of rectifying highwines. Upon a bill filed by the lessor against the lessees, the Court restrained the parties from continuing to rectify highwines, or carry on any other business that would interfere in any way with the insurance.'' In 1844, a mill site was conveyed to the defendant " with the privilege of keeping the dam thereon at all times hereafter at its present head or height, but no higher," and in 1849 the defendant 1 Attwood V. Banks, 2 Beav. 192 ; see Pirn v, Wilson, 2 Phill 663. ■2 Jamirson v. Teague, 3 Jur. N. S. 1206, V. C. W. 3 Earl Bathtirnt v. B rden, 2 Bro. C. C. 64 ; Lord Kilmorey v, Thackeray, cited ib. fr A^ tu pru- ceeding-s in Equity, in disputes between landlord and tenant, see Wood/all, 894, it ^■■ii i Johnson v. Goldswaiiit;, 3 Anst. 749 ; Geatit v. Lord Belfast, ib. n. ; Pulttunni v. Skelton, '■ ^'c. 147; ih. 200, n. (ffl) ; Lord Grey de Wilton v. Saxon, 6 yea. 100. R Aylet V. Dodd, 2 Atk. 238 ; Woodioard v. Gyles, 2 Vern. 119 ; Rolfe \ . I'rtersun, 2 Uni P. C. ed. Toml. 436, 6 CUy of London v. Pngh, 4 Bro. P. 0. ed. Toml. 39.5. 7 A mold V. White, 6 Grant, 371. 82 1684 GENERALLY. erected a new dam lower down the stream. This new dam was of the same height as the old dam ; but the defendant placed on the dam moyeahle stop logs to enable him to make use of the surplus water, which would otherwise flow oyer the dam. By experiments, it was shown that if these stop logs were not removed when the defendant's mill was not working, but in that case only, the water would be raised on the lands of the plaintiff, to the extent of about I5- inches ; the defendant however always had removed the logs when his mill was not working : Held, that the plaintiff was not entitled to an absolute injunction against the use of the stop logs.^ Though a lessee is required, hy law, to cultivate the lands demised to him in a husbandman-like manner, conformable to the custom of the country,- yet this is usually defined by some express cove- nant. It has, upon this subject, been determined at Law, that a covenant to occupy in a good and husbandman -like manner, accord- . ing to the custom of the country, will be broken by contravening the prevalent course of husbandry in the neighbom-hood ; and that, even if the contract be simply to occupy the estate in a good and husbandman-like manner, this will throw a liability upon the tenant to cultivate the land according to the practice of the neigh- bourhood ; ^ and even, though a farm be held under a written agreement, the custom of the neighbourhood may well be insisted upon, provided it be not either expressly or by implication excluded by the terms of the agreement.* The same principle has been acted i;pon in Equity, where an injunction has been granted to restrain a tenant from year to year, (who, it was said, was equally bound as a tenant for a longer period, to manage his farm in a husbandman-like manner,) from removing crops, manure, &c., contrary to the custom of the country.^ In ^ previous case, a tenant was restrained from ploughing up pasture land : although the lease did not contain an express covenant not to convert pasture into arable ; but the landlord was held entitled to the injunction, on the ground of there being a covenant to manage pasture in a 1 Beamish v. Barrett (in appeal), 16 Grant, 318 ; and see Graham, v. Burr, 4 Grant, 1 ; and Camp- bell V. Young, 18 Grant, 97. 2 Poll-ley V. Walker, 6 T. E. 373. 3 Leah v. Hewett, 4 East, 154. 4 Wifjglesumrth v. Dallimn, Doug-. 201 ; Seniorr Armytage, 1 H.ilt, X.P.C. 197 ; Wel}h v. Phunmer, 2 B. & Aid. 748. .'. OnUuw V. , 16 Ves, 173. IXJUNCTIONS AND RESTRAINING ORDERS. 1685 liusbandman-like manner.^ Upon the same principle, the Court has interfered to restrain a tenant from sowing mustard, saffron, TToad, and other deleterious crops : as being contrary to the course of husbandry.- A distinction has been made, as to enforcing, by injunction, the specific performance of express covenants, and of implied agxee- ments ; and the Court has refused to interfere to restrain a tenant, who was holding over, from removing articles contrary to the custom of the country : as the Court would not imply special covenants, as to cultivation, from the mei-e act of holding over.^ A covenant to repair, and, at the end of the term, to surrender buildings in good condition, does not preclude an injunction against .pulling them down and carrying away the materials, just before the end of the term.* Where there is a covenant not to convert premises into a shop, or to carry on a trade without licence in writing, the permission of the lessor, without writing, to carry on one trade, will not amount to a general licence for any trade, so as to preclude the lessor from his right to an injunction.^ It appears formerly to have been considered, that the Court should not, in any case, interfere to restrain the breach of an agreement, if it was of such a character that it could not decree the specific performance of it.'' But it seems that now, the Court will restrain a person from committing acts, in breach of an agree - ment, although it cannot compel the performance of it ; '' and that where an agreement consists of two distinct parts, one of which the Court can enforce, although it cannot enforce the other, and the bill is filecl simplj^ for an injunction to restrain the violation of the 1 Drury v. Molim, 6 Ves. 328. 2 Pratt V. Brett, 2 Madd. 62. .3 Kimpton v. Eve, 2 V. & B. 349. 4 Mayor, &c., of London v. Hedger, 18 Ves. 355. , 5 Macher v. Foundling^ Hospital, 1 V. & B. 188. 6 Kemble v. Kean, 6 Sim. 333 ; Ki-mberley v. Jennings, 6 Sim. 340 ; Baldwin v. Vseful Knoutledge Society, 9 Sim. 393 : 2 Jur. 961 ; Hooper v. Brodrick, 11 Sim. 4Y ; Pickering v. Bishop of Ely, 2 Y. & 0. C. C. 249 : 7 Jur 479 ; Stocker v. '.Vedderbiirn, 8 K. & J. 393 ; Dietrichsen v. Cabburn, 1 Phill. 62 : 1 C. P. Coop. t. Cott 72 : 10 Jur. 001 ; Hills v. Croll, 2 Phill. 00 : 9 Jur. 645 : 1 C. P Coop. t. Cott. 83. 7 Lumley t. Wagner, 5 De G. & S. 486 ; 1 De G. M. & G. 604 : 16 Jm. 8Y1; Great Northern Railway V. Manohenfer, She^eld iC- TAncolnshire Eaihcay, 5 De G. »fc S. 138 ; Webster v. Dillon, 3 .Jur N S. 432, V. 0. W. 1686 GENERALLY. former part, the Court will grant the injunction, notwithstanding that it could not enforce the agreement in toto} An agreement may be enforced by injunction, although the violation is not shown to be injurious ; ^ and the Court will not, it seems, refuse to interfere, on the ground that a mistake has been committed by both parties in the form of the covenant ; on the ground that the plaintiff has permitted other infringements of the covenant ; or on the ground of inconvenience to the public.-' Injunctions may also be granted, to relieve a party against the consequences of the non-performance of a covenant or agreement, where such consequences involve either a forfeiture or the imposi- tion of a penalty. The doctrine upon the subject of relief from penalties, has thus been stated by Lord Thurlow : — " Where a penalty has been inserted, merely to secure the enjoyment of a collateral object, the enjoyment of the object is considered as the principal intent of the deed, and the penalty only is accessional, and to secure the damage really incurred."* But ^here the parties, instead of securing the performance of the agreement by a penalty, have fixed upon a certain sum by way of liquidated damages, to be paid in the event of the ncm-performance of the agreement, a Court of Equity (except in certain cases of waste, which will be noticed hereafter,) refuses to interfere in restraining the recovery of such damages.'' Upon these principles, Com-ts of Equity interpose to restrain proceedings at Law for the recovery of penalties. But where a forfeiture had happened under a by-law of a corporation, which provided that members should receive notice of default in paying a call, and incur the forfeiture by non-jpaymeut ten days after the notice sent. Sir William Grant refused to relieve : although the lapse arose from accidental circumstances, and absence from town when the notice was sent ; and he mentioned a case, in Ireland, of 1 Rolfe V. Rolfe, 15 Sim. 88. See Ogden v. FossM, 11 W. R. 128, L. JJ. ; hnXsee Brett v. Hast India tfc London Shippim/ Cnotjxiny, 2 H. & M. 404. 2 DUlcenaon v. Grand Junction Canal, 15 Beav. 260 ; but kgo Lloyd v. London, Chatham .0 Dorer Railway Comiiany, 11 Jur. N. S. 380 : 13 \V. R. 698, h J.J. 3 Ibid. 4 ,S(o»if(iiv. Waiter, 1 Bro. C. C. 418. 5 On this point see 1 Swamt, 318, n. ; Sainter v. F>ir!ja^on 1 McN. & G. 2.S6 : 14 Jur. 2.').o : CoUx v. Sims, 6 De G. M. & G. 1 ; 18 Jur. 683, 685. INJUNCTIONS AND RESTRAINING ORDERS. 1687 a person who, after haying paid some instalments on a lease, neglected to make a further payment, and forfeited the instalments he had paid.'- And though relief has sometimes been given against the forfeiture of-a covenant for renewal,^ which, in Ireland, formed a distinct head of local Equity,^ yet the inclination of the Courts is to the contrary : unle^ the right has been forfeited, in con- sequence of fraud, accident, mistake, or any similar Equity.* A common instance of this species of relief is that which is given against a clause of re-entry for non-payment of rent. This has been a ground of equitable interference from the earliest times ; and there has been a parliamentary recognition of the doctrine by Statute 4 Geo., II., ch. 28, sections 2 and 3. This relief is granted upon the principle that compensation is made to the landlord by the payment of the rent with interest : a doctrine contradicted by general experience, and often found fault with as imperfect and unjust.^ Lord Northington appears to have been of opinion, that the Court might, by analbgy, relieve, where a tenant had committed a forfeiture by cutting down timber.'' It is, however, scarcely neces- sary to remark how extremely inadequate pecuniary compensation must generally be in such a case ; and it is probable, if the question is ever maturely considered, that a contrary determination will be come to. Where it is clear that the covenant is of such a nature that a Court of Equity cannot make a compensation for the breach of it, as in the case of covenants not to assign without licence,'' relief will not be given against the penalty. Considerable discussion has taken place, how far the Court would relieve against a forfeiture incurred by the breach of a covenant to repair. In the case of 1 Sparks v. Liverpool Water Wnrk^ Company, 13 Ves. 428. 2 Kawxtoriie v. Bcntly, 4 Bro, C. C, 415. 3 U'Xril V. Joiies, I Ridg. 170 ; Kane v. Hamilton, ib. ISO ; Batetnan v. Murrai/, ib. 1S7 ; Boyle v. LnjKaght^ ib. 384 : Vern. & Scriv. 135 ; Mayrath v. Lord Miwkurnj. ib. 166 : 1 liiclLr. 400 ; Jaclcaonv. Saunder.i, 1 Sch. & Lef. 443 : 2 Dow. 43V ; Lennon v. A'app'r.'-2 Sch. & Lef. («2 ; Mai/rnne v. Arrjibold, 1 Dow. 107; Sari of Mountnorris v. White, 2 *. 4.59 ; Barrett v. Bur'te. 5 ib. ;1 ; Kcatidg v. Sparrow, 1 Ball. & B. 3(i7 ; Jefssop v Eiiiy, 2 ib. 81 ; Barrett r. Pearson, ib. 189. 4 Allen V. Hilton, 1 Fonb. Eq. 432 : Bayley v. Corporation of Leominster, 3 Bro 0. C. 529 ; Baynhain V. Guy's Hospital, 3 Ves. 295 ; Eaton v. Lyon, ib. 690 ; City of London v. Mitford, 14 Ves. 41. 5 Uils V. Barelay, 16 Ves. 402, 405 : 18 Ves. 56, 61 ; Braeebridge v. Bnekley, 2 Pri. 216 ; Reynolds v. Pin, 19 Tes. 134, 140. 6 Sm-theote v; Dulce, 2 Edei), 319, 322: Amb. 511. 7 ;ro/>r V. ,1/("-rt(u, 9Mod. 112 ; Woodfall,iib-i:'.1. 1688 GENERALLY. Sanders v. Pope,^ Lord Brskine, upon the authority of a deter- mination of Lord Macclesfield,^ expressed a strong opinion in favour of the equitable jurisdiction ; but the doctrine, after full and elaborate discussion, has been established to the contrary.^ The same determination would, consequently, be made with respect to the breach of a covenant to build : though the autho- rities are conflicting as to the power to decree a specific perform- ance in such case.^ Where the forfeiture of the lease at Law is admitted, the tenant must show reasonable ground for belief that he is entitled to equitable relief, before an interlocutory injunction will be granted to restrain the landlord from proceeding to enforce the forfeiture. It seems, also, that where the landlord is aware that the lease is or must be forfeited, but stands by and allows the tenant to expend money on the property, he will be restrained from proceeding to enforce the forfeiture at Law.* Injunctions or restraining orders may also be issued, for the protection of a ward of Court from removal, ^ or marriage ; ' in cases of interpleader ; ^ and to restrain a partner from acting in opposition to the partnership agreement, or from depreciating the partnership property.^ Courts of Equity will likewise prevent a person from setting up an unconscientious advantage at Law, so as to interpose impedi- ments to the just rights of the other party. Thus, if an ejectment 1 12 Yes. 282. 2 HacJc v. Leonard, 9 Mod. 91. 3 Hill V. Barclay, 16 Ves. 402 : 18 Ves. 56 ; Bracebridye v. BweJcley, 2 Pri. 200 ; Xokes v. CHilbon, 3 Drew. 681 ; 3 Jur. S. S. 726 ; Nokes v. Fish, 3 Drew. 735 ; Job v. Banister, 2 K. & J. 374 ; 3 Jur. N. S. 93, L. C. ; and see Haniiun v. South London Waterworka Co'inpany, 2 Mer- 65, n. 4 There are two instances of specific performance decreed of covenants to reliuild : City of London v. Xash, 3 Atk. 512 : 1 Ves. S. 12 ; Allen v. Harding, 2 Eq. Oa. Ab. 17, pi. 6 ; and, in Moseley v. Virgin, 3 Ves. 184, Lord Rosslyn stated that specific performance miglit be decreed. Lords Thur- low and Xvenyon, on the other hand, have pronounced a contrar.v opinion : JEmngton v. Aynenly, 2 Bro. C. C. 341 ; Lucan v. Commerford, 3 Bro. C. C, 166 ; 1 'Ves. J. 236. Tliat a covenant to repair cannot be specifically performed, see Rayner v. Stogie, 2 Eden, 128 ; Flint v. Brandon, 8 Ves. 159. And see Brace v. Wehnert, 26 Beav. 348 : 4 ,Jur. N S. 549 ; Sanderson v. Cockermouth Railway Co'inpany, 11 Beav. 497 ; Lytton v. Great Northern Railway Company, 2 K. & J. 394 : 2 Jur. N. S. 436 ; Suam.es v. Edge, Johns. 669 ; S':rris v. Jaoksmi, 1 J. & H. 319 ; Taylor v. Por- tington, 1 De G. M. & G. 328 ; Samuda v. Law/ord, 4 Gift. 42 ; Fry, 21 ; Wood/all, 477, as to spe- cific performance of covenants of this nature. 5 North Staffordshire Steel Company v. Camoys, 11 Jur. N. S. 555, L JJ. 6 See ante. For cases, and forms of orders, see Seton, 713-721. 7 Ante. For cases, and forms of order, see Seton, 727-732 ; and see Pearce v. C^'utchfiekl, 14 ^ es. 206. 8 Ante. For cases, and forms of orders, see Seton, 962, 963. 9 /fall V. Hall, 12 Beav. 414, 419 : 20 Beav. 139 ; Mar>,hall \. Watson, 25 Beav. 501, 604 ; Tunwi- v. Major, 3 Gitf. 442 ; Bradbury v. Dickens, 27 Beav. 53 ; and for cases, ajrd for forms of orders, see Seton, 917, 918. INJUNCTIONS AND RESTRAINING ORDERS. 1689 is brought to try a right to land, the Court of Chancery will restrain the party in possession from setting up a term of years, or other interest, in a trustee, lessee, or mortgagee which may hiader the fair trial of the right ; ^ but this will not be done in every case : for, as the Court proceeds upon the principle that the party in possession ought not, in conscience, to use an accidental advantage, if there is any circumstance which meets this principle, the Court will not interfere. Therefore, if the possessor is a pur- chaser for valuable consideration, without notice of the title of the claimant, this is a title, in conscience, equal to that of the claim- ant ; and the Court will not restrain the possessor from using any advantage he may be able to gain to defend his possession.^ Where repeated attempts are made to litigate the same question, which the Courts of ordinary jurisdiction will, in many oases, admit, the Court of Chancery will put an end to the oppression which may be occasioned by the abuse of this privilege. Thus, as a judgment in ejectment is not final or conclusive, but the same proceedings may be repeated for ever, a perpetual injunction will be granted, to prevent the repetition of them, when the assertion of such right becomes oppressive to the opposite party .^ It is on this ground that Courts of Equity have interfered, by bills of peace. The object of an interlocutory injunction is to maihtain the matters in question in the suit in statu quo, until the hearing of the cause ; * and the Court, will not, therefore, except under very special circumstances, grant, upon an interlocutory application before decree, an injunction which virtually directs the defendant to perform an act.^ There is, indeed, a passage in the MS. report of the case of Warden v. EUers,'' from which it may be inferred to have been Lord Hardwicke's opinion that the Court might, upon 1 Ld. Red. 134; Bond v. Hopkins, 1 Sch. & Lef. 412, 430 ; I'ulteney v. Warren, 6 Ves. 89; Leiffh v. Leigh, 1 SiQi. 349. 2 Jerrard v. Scmnders, 2 Ves J. 454, 467, 458 ; Mauiidrell v Maundrell, 7 Ves. 667 : 10 ^"es. 246 ; Baker v. Uellish, ib. 644, 649 : Hylton v Morgan, 6 ^'es. 293 ; Bgme v. Byrne, 2 Sch. & Lef. 637 ; Barney v. Luckett, S. & S. 419 ; Northey v. Pearce, ib. 420. 3 Lord Bath v. Sherwin, Prec. in Oh. 261 ; 4 Bro P. C. ed. Toml. 378 ; Leighton v. Leightoii, 11 P. Wms. 671 : 4 Bro. P. C. ed. Toml, 378; Devonshire v. Jiewenhai.i, 2 Sch. &Lef. 199, 211 ; Hodgson V. Duce, 2 .Jur. N. S. 1014, V. C. S. 4 Laicre-nce v. Austin, 11 Jur. N. S. 576, 677 : 13 W. R. 981, M. E. 5 Blakemore v, Glamorganshire Canal Company, 1 M. & K. 164 ; Grrat Wc-iteni Railway C.iin v. Wyatt, 2 De O. J. a S. 18 : 9 Jur. N. S. 1333 ; Lawrence v. An.^tin, 11 Jiu-. N. S. 576, 577 : 13 W. ' R. 981, M. K. 5 Lawrence v. Austin, 11 Jur. N. S. 676, 677 : 13 W. R. 981, .M. R. 6 See ayite. 7 Garrett v. Banslead X- Rpsom Downs Railway Cnoipamj, 11 Jur. N. S. 591 ; 13 W. R. sTS, L.JJ. ; Munro v. Wirenhoe . INTERLOCUTORY INJUNCTIONS AND RESTRAINING ORDERS. 1695 The application for an injunction is made by motion.^ If it is not made ex parte, a notice of motion must be served, in the usual manner ; ^ and if it is intended to serve the notice of motion before the expiration of the time limited for the appearance of the defend- ant, or to make the application on short notice, the special leave of the Court must be first obtained ; and the fact that it has been given must be stated in the notice of motion.^ Leave will be given to serve the notice of motion with the copy of the bill ; but not to serve it before the bill is filed.* Strictly speaking, after the defendant has appeared, a notice of motion should always be given ; but in cases of urgency, where the threatened mischief is imminent, and would be irremediable, this will be dispensed with.^ An application for an injunction must (except in the case of a bill of interpleader),^ be supported by affidavits, or the admissions of the defendant in his answer. Formerly, the answer was taken to be true ; and affidavits, except under special circumstances, could not be read against it ; '' but now, in applications for an injunction, or to dissolve an injunction, the defendant's answer is, for the purpose of evidence on such application, to be regarded merely as an affidavit of the defendant ; and affidavits may be received and read in opposition thereto.^ The affidavits in support of an application for an injunction are usually made by the plaintiff ; but they may be made by any per- son acquainted with the facts. Thus, an injunction was granted to restrain the publication of a work sold as the plaintiff's upon an affidavit by the plaintiff's agent : the plaintiff himself being abroad." 1 It may also be made by petition ; but this is not done in modern practice. As to motions, see ante. It is said tliat, in vacation, the application should be made by petition : Wyatt's P. R. 262 ; Smcth V. Clarice, 2 Dick. 456 ; Xtelwls v. Keardey, (b. 646 ; but this is not the present practice. 3 RamJsiottom v. Freeman, i Beav. 146 ; I-fill v. Rimall, 2 M. & C. 641 ; Jaeklin v. Wilkins, 6 Beav. 607 ; Moggridge v. Thomas, 2 C. P. Coop. t. Cott. 166 ; Xeirtmi v. Chorlton 10 Hare, App. 31 ; and i Simmons v. Heaviside, 22 Beav. 412 ; contra, Parker v. Great Xorthern Railway Company, 4 De G & S. 138 ; Fosbrook v. Woodcock, 12 Jur. 956, V. C. E. 6 Marasco v Boitnn, 2 Ves. S. 112; Aller v. Jones, 1.5 Ves. 605 ; Harrismi v. Coekerell, 3 Mer, 1 ; Collard v. Cooper. 6 Mad. 190; Perry v. Welter, 3 Russ. 519 ; Aeraman v. Bristol Dock Ci>i,i- ' pany, 1 R. & M. 321 ; Petley v. Eastern Counties Railway Company, 8 Sim. 483 ; Langhaiii \ . Great Northern Railway Company, 1 De G. & S. 486, 497. 6 Hamilton v. Marks, 6 De G. & S. 638 ; and see ante. 7 See Rock v. Mathews, 2 De G. & S. 227, 234 ; distance v. Cunniiigham;.li Beav. 363. 8 15 and 16 Vic. ch. 86, sec. 69 (Imperial) ; but we have no provision similar to this. 9 Lord Byron \:Johnstmi, 2 Mer. 29 ; but see Mollett v. Enequist, 26 Beav. 609 : 4 Jur. N. S. 1009. 169G INJUNCTIONS AND RESTRAINING ORDERS. The affidavits must be sworm after the bill is filed : otherwise tliej' cannot be read, as they have not been made in a cause.^ The office copies of the affidavits ought to be in Court at the time when the injunction is moved for ; and an injunction has been dissolved on the ground that the office copies of the affidavits, upon which it was granted, were not actually in Court when the order was pronounced.^ It is, in general, necessary that a plaintiff should swear posi- tively to his title. An injunction has been refused when a plaintiff merely swore, upon his information and behef, that he was a remainderman under a settlement.' A statement that the plaintiff is entitled in fee simple has also been considered insufficient, as being too general : he must set out his title particularly."* Upon the same principle, it is requred that, where an application to restrain the violation of a patent right is made ex 'parte, or the validity of the patent is denied, the plaintiff should swear as to his belief at the time of making the application, (and not as to his belief at the time he obtained the patent,) that he is the original inventor.^ The evidence must also prove some actual violation of the plain- tiff's rights, or a sufficient ground to apprehend it. Thus, in cases of waste, an affidavit merely as to belief that the defendant intends to commit waste, without stating any grounds for it,- will not be sufficient : there must either be some fact, like the sending a sur- veyor to mark out trees, or some threat ; ^ and where the applica- tion relates to a matter which is merely pecuniary, the Court must be satisfied that there is some probability of the bill not being dis- missed at the hearing.''' The affidavits on which an ex farte injunction is applied for must (to guard against abuse of that process) present a candid 1 Fmncome v. Franeimie, 11 Jur. N. S. 123 : 18 W. R. 355, L. C. ; contra, Peimall v. Bi-om'ji, 18 Jur. 1061, V. C. W. 2 Jackson v. Cassidn, 10 Sim. 826 ; JSlsey v. Adams, i Gift. 398 : 9 Jur. N. S. 788, V. C. S. 3 Davids V. Leo, 6 Ves. 784. 4 Whitelegq v. Whitele'i6, ,561, ji 4 Hes Bateman v. Wiatt, 11 Beav. 587. .> In country cases, the terms of the injunctif^n, a.', soon as it is f^ranted, are frequently comnnniicated by telegraph to an agent ; and he prepares therefrom and serves the formal notice mentioned in the text. 6 Kimpton v. fee, 2 V. & B. 3411 : Vannandaii v. Rom, 2 .). & W. 264 ; McNeil v. Garralt, V. & P. 93 : .'> Jur. 836 ; and see post. 1702 INJUNCTIONS AND RESTRAINING ORDERS, The writ of injunction is preparad by the solicitor of the party. It must be signed by the Clerk of Eecords and Writs, and sealed with the seal of that office. The writ must be indorsed with the name and place of business of the plaintiff's solicitor, and of his agent if any ; or with the name and place of residence of the plain- tiff, where he acts in person ; and, in either case, with the address for service, if any.^ Unless substituted service has been authorised,- the service of the injunction or restraining order must be personal ; and is effected, by leaving with the person served^ a true copy of the writ or order ; and, at the same time, showing him the original writ as duly issued, or the restraining order as duly passed and entered.^ If the person restrained from prosecuting any action or proceed- ings in any Court of Law or Equity disobeys the injunction or restraining order, the remedj^ is by process of contempt against him. An interlocutor}' injunction may be dissolved at any time before the hearing of the cause ; and is ijyso facto dissolved by the dis- missal of the bill ; ^ or the allowance of a demurrer to the whole bill : although leave to amend may have been given.® An injunc- tion " until answer or further order " is not dissolved by the mere putting in of a sufficient answer : an order for that purpose must ))e obtained.'^ An injunction is not in general dissolved by a subsequent amend- ment of the bill ; ^ but where the record was altered by the addition of a plaintiff, it was held to have this effect.® 1 Ord. 40-41, ante. 2 See antey Anderson v. Leiois, 3 Bro. C. C. 429 ; Lord Portariington v. Graham, 5 Sim. 418 ; Kirk- man v. Honnor, 6 Beav. 400 ; Ueald t. Hay, 9 W. R. 369, V. C. S. 3 As to service, in the case of a corporation ajjgregate, see Carron Company v. Maclaren, 5 H. L. Ca. 416. 4 Braithwaite's Pr. 228, 229 ; Woodward v. King, 2 Dick, 797 ; S. C. nom. Woodward v. Earl Lincoln, 3 Swanst. 626 ; Ellerton v. Thirsk, IJ. & W. 376 ; Gooch v. Marshall, 8 W. R. 410, V. C. W. 5 Bliss V. Collins, cited 2 Mer. 62 ; Green v. Pvlsford, 2 Beav. 70, 76. 6 Schneider v. Lizardi, 9 Beav. 468 ; but see Attorney-General v. Marsh 16 Sim. 572 ; 13 Jur. 317. 7 Ooddeen v. Oaldey, 2 De G. F. & J. 168 ; and see Mollett v. Enequist (No. 2 ) 26 Beav. 466. 8 Dams V Davis, 2 Sim. 516 ; Warburton \\ London tk Blac/rwalt Railway Company, 2 Beav. 253 ; Brooks V. Purton, 1 Y. & C. C. C. 271 ; 6 Jur. 94 ; Kennedy v, Lewis, 14 Jur. 166, V. C. K. B. It is not neces.sary, though usual, for the order givinj^ leave to amend to state that the amendment is made without prejudice to the injunction : ante, Seton, 873. 9 Attorney-General v. Marsh, 16 Sim. 572: 13 Jur. 317; and see Davis v. Davis, Warburton t. London & Blockwall Railway Cfrmpany, and Kennedy v Lewis, ubi sup. INTERLOCUTORY INJUNCTIONS AND RESTRAINING ORDERS. 1703 An application to dissolve an interlocutory injunction is made by motion :^ of which notice should bo given, in the usual manner. - The notice should be given for one of the days appropriated to the hearing of motions ; but if it he important that the motion should be made without waiting for such a day, application should be made to the Court, before the notice of motion is served, for per- mission to give the notice of motion for a particular day ; and the fact of such permission being given should be mentioned in the notice of motion.^ The plaintiff is sometimes, by the interim order required to undertake that he will accept short notice to discharge the order.* It seems that where an injunction is granted against several defendants, one of them may move to dissolve, in the absence of the rest.^ In an interpleader suit, however, the notice of the motion to dissolve the injunction must be served on aU the defend- ants.® If the injunction was obtained on a misstatement of the facts, the motion should be to discharge the order, and not to dissolve the injunction.^ The application to dissolve an injunction must be supported by evidence (which is usually given by affidavit,) on the part of the defendant, in answer to that upon which the injunction was obtained ; and the case, thus made by the defendant, may' be met by counter evidence on the part of the plaintiff.^ The answer of the defendant is, for the purpose of evidence on the motion to be regarded merely as an affidavit, and affidavits may be received and read in opposition thereto ; ^ and at the hearing of the motion, the defendant may avail himself of any technical objection to the bill which would have been held good on demurrer. i" 1 Where a person not a party to the cause is injuriously affected by the injunction, he may, it seems, apply by petition to set it aside : Boxcrbaiid v. Bourhaud, 12 W. R. 1024, V. C. W. As to peti- tions, see ante. 2 In pressing cases, the Judge will appoint a special hearing at his house for the purpose. 3 Ante 4, See Seton, 867, No. 1. 5 Joseph V. Doubleday, 1 V. & B. 497 ; Lewis v. Smith, 7 Beav. 470 ; Monc}t v. Jordun, 13 Bea\ . 229 ; ■ Maeijregoi- v. Cunninghant-, 10 Sim. 365 : 12 Jur. 956 , see, however, Thoitipmn v. (rearu^ b Beav. 131. 6 Mastennan v Lewi.-., 2 Phil. 182, 186; o/itc. 7 Angierv. May, 3 W. R. 330 : 3 Eq. Rep. 488, V. C. W. 8 As to evidence on motions, gee ante. 9 Order 285. 10 Barnsley Canal Cotapany v. Twibell, 7 Beav, 31 ; IJitd^'jn v. .HaddUun, 12 Sim. 416 ; 5 Jur. 1194. 1704 INJUNCTIONS AND RESTRAINING ORDERS. Where an interim order has been made, and simidtaneous appli- cations are made, both for an injunction and to discharge the order, the plaintiff is entitled to begin. ^ If, upon hearing the motion, the Coui-t is of opinion that the injunction was obtained by a suppression of material facts, or that it was improperly granted, or that the case made by the plaintiff is contradicted or not supported, it will order the injunction to be dissolved, either with or without costs, as the justice of the case may require.^ If an undertaking as to damages has been given, the Court may give directions for the asceriainment of the amount, and order payment thereof to the defendant.' But if the defend- dent does not succeed in satisfyingthe Court that the injunction ought to have been refused, or that it ought not to be continued, or the Court considers that the defendant is estopped by his own ladies or acquiescence, the application will be refused and the injunction continued.* Where, in the case of a bill of discovery, an injunction until answer or further order has been obtained against several persons, who have jointly commenced an action at Law, it will not be dis- solved until they have all answered. •'' When the injunction has been granted until answer or further order, a motion to dissolve it will not be entertained until the plaintiff has had reasonable time to consider whether the answer is sufficient.* The Court has refused to entertain a motion to dissolve an injunction, pending an application for the production of docu- ments.^ 1 I'raser v. Wlialey, 2 H. & M. 10. 2 Ante, SpoUisimode. v Clarke, 2 Phill. 154 : 1 C P. Coop. t. Cott 254 ; 10 Jur. 1043 : Cory v. Tar- mexith tL J^'oninch Railway Company^ 3 Hare, 593 : Dalglish v. Jarvie, 2 M'N. & G. 231 : 14 Jur. 945 ; Great Western Railway Company v. Oxford, Worcester & Wolverhampton Railway Com- pany, fi De O. & S. 437 ; Rochdale Canal Company v. Einy, 2 Sim. N. S. 78 : 15 Jur. 962. For form of order, see Seton, 941, No. 1 ; 942, No. 8. 3 See ante, Seton 868, No. 5 ; and see Newby v. Harrison 7 Jur. N. S. 981 : 9 W. R. 849, L.JJ. 4 Packinytoitv. Pachington, 1 Dick. 101 ; Attorney-Ceneral v. Burroies,ib. 128; Anon., 3 Atk. 485; Feistel V. King's College, Cambridge, 10 Beav. 491 : 11 Jur. 606 ; Glascott v. Lang, 3 M. k C. 451; 2 Jur. 909. For form of order, see Seton, 941. 5 White V. Steinwacks, 19 Ves. 83 ; Joseph v. Dowhleday, 1 V. & B. 49" ; Xaylor v, Uidilteton. 2 Mad. 131 ; jVan?jei/ V. Vaughan, 8 Sim, 439; und sea Glascott v. Copper Miners' Company, 11 Sun. 314 : 5 .Jur. 264. 6 Gibson V. Chayters, 8 Beav. 167 ; but nee Stanley v. Bond, 5 Beav. 17.^1 ; Cresy v. Beavan, ib. Ill, n. 7 Storer v. Jackson, 12 Sim 50;J. INTERLOCUTORY INJUNCTIONS AND RESTRAINING ORDERS. 1705 If the motion to dissolve is useless, the defendant will be directed to pay the costs of it, whatever may be the result of the suit.^ Although the bill seeks merely an injunction, or au injunction with an account consequent upon the injunction, and the result of an inquiry, or the trial of a question of fact, is unfavourable to the plaintiff's right to the injunction, the defendant cannot on that ground move to dismiss the bill. Where a motion of this nature was attempted, after a case at Law had been certified against the plaintiff", Lord Eldon refused it : saying that, upon the certificate from the Court of Law, the ease stood as if he had declared his own opinion to the effect that the plaintiff could not succeed in his motion for an injunction ; and that the cause might still be brought to a hearing : when the Court might entertain a different opinion upon the title. ^ Although an injunction may be granted ex 'parte, and sustained upon a motion to dissolve it, yet if, at the hearing of the cause, there be no evidence against the defendant, the bill will be dis- missed.'' An injunction had been obtained against a defendant, and after the limited time for putting in an answer had expired, an order pro confesso was taken out against him — he then gave notice of motion to dissolve the injunction. Held, that the statements of the bill having been confessed by his allowing the order pro confesso to stand, precluded him from moving.* Where an ex parte injunction was served 24th December, and the bill was not served up th 13th May following, the injunction was dissolved for the neglect to serve.* In general, a party who is entitled to an injunction is also entitled to the costs of it ; but if he has asked too much b}- his notice of motion, he may be deprived of the costs to whicli he would otherwise have been entitled.^ 1 Norton v, Nichols^ 4 K. & J. 475. i Brooke v. Clarke, 1 Swanst. 660. :i Barfield v. Kelly, 4 Rubs. ■Ha-'Aah 4 Manly v. Williams, 5 U. C. L. J., 168. 6 Heron v. Sinsher, 13 Grant, 438. H Moet V. Couston, 33 Beav. 678 : 10 Jur. N. S. 1012. 1706 INJUNCTIONS AND EESTRAINING ORDERS. An interlocutory injunction or restraining order continues in force, notwithstanding tlae suit has abated ; and, in such case, if the party enjoi];ied wishes to get rid of the injunction, he must move upon notice that the plaintiff, or the persons representing his interest, may revive within a given time, or else that the injunc- tion may be dissolved.^ Continulufi or granting Itijunctions at the Hearing. An injunction, which has been granted upon an interlocutory application, is superseded by the decree made at the hearing of the cause. If, therefore, it is intended that it should still remain in force, it must jbe expressly continued.^ Injunctions are con- tinued at the hearing either provisionally or permanently. They may be continued provisionally, pending inquiries or accounts which are preparatory to a final adjudication upon further consi- deration. Injunctions may be permanently continued, or made perpetual, by the decree, where the party enjoined is in possession of some instrument conferring a legal right, which it is contrary to Equity that he should be permitted to exercise to the detriment of the plaintiff. Therefore, where the plaintiff gave to the defendant three promissory notes for a particular purpose, on his undertaking to make no improper use of them, but afterwards the defendant, contrary to his promise, put the notes in suit against the plaintiff, who thereupon filed a bill praying that the notes might be delivered up to be cancelled, and that the defendant might be restrained, by injunction, from proceeding upon them, the Court, at the hearing, directed that a perpetual injunction should issue, and that it should extend to restrain the indorsing and further negotiation of the notes.'' The general course of the Court, where a party is in possession of a security or other instrument which it is against conscience that he should use against the defendant, is, however, to direct it to be delivered up and cancelled : a course which it will adopt even 1 Randall v. Muwford, 18 Ves. 427 ; Stuart v. Ancell, 1 Cox, 411 ; mil v. Uoan; i Cox, 60 ; Wheeler v. Malins, i Madd. 171; Adamson v. Ball, T. & R. 258 ; and see ./ones v. Massey, and Turner v. Cole, cited 3 Beav. 292. As to the effect of abatement upon a perpetual injunction, see pnft. 2 Sef' n, 944 ; and for lorm of direction, see ilt. 941, No, 2 ; 943, 944. 3 Ola V. Old, Seton, 106, No. 8. 4 Gkenel v. Churchnian, 3 Bro. C. C. 16, n. ; Minnliaic !v. Jordan, ilf. 17, n. ; and 'see ib. ed. Belt, n. (2) ; Harrington v. Su Chatel, 1 Bro. C. C. 124; 2 Swanst. ir,S, n. ; S. C. nom, Harrington t. Chattel, 2 Dick. 158. CONTINUING OR GRANTING INJUNCTIONS AT HEARING. 1707 where the instrument is void in Law ; although it has been some- times doubted whether this remedy is appHoable to cases of this description : as the circumstances which render the instrument void at Law might be shown or pleaded there, to any action which might be brought upon such an instrument.^ The practice of extending injunctions at the hearing, so as to render them perpetual, is not confined to cases in which the party is in a position to annoy the plaintiff by proceedings which he may have a legal right to institute ; but it is applied to prevent a con- tinuation or repetition of acts for which the party has no legal authority whatever. Thus, injunctions to restrain waste, or the infringement of a patent, may be made perpetual at the hearing. So, also, may injunctions to restrain the piracy of a publication ; ^ or to restrain the itse by one tradesman of the trade-marks of another ; ^ but to support a decree for a perpetual injunction, the Court requires that there shall be nothing like a doubt in the case. Thus, where the defendant had, in two numbers of a periodical pubhcation of theatrical criticism, inserted detached extracts, to the amount of six or seven pages, from a farce, the property of the plaintiff, containing forty pages, which were interspersed with criticisms, Sir William Grant, M. E., considered the question, whether the defendant had transgressed the allowed limits of fair extracts, too doubtful to warrant the Court in making a decree for a perpetual injunction, and dismissed the bill with costs.* In order to entitle a plaintiff to an injunction at the hearing, it is not absolutely necessary that he should previously have made an interlocutory application for one ; ' and he is at liberty then to claim an injunction, although he may have previously failed to obtain one, or to support it when obtained." But where he has not 1 See 2 SwamL 157, u., where the cases on this subject are collected ; Simpson v. Lord Howden, 3 M. & C. 97. 2 MaokUn v. Richardson, Amb. 694, 696 ; and for the order in that case, see Seton, 944, No. 2; Manhy V. Owen, 4 Burr. 2329, cited 13 Ves. 602 ; see also Colburn v. Simms, 2 Hare, 643 ; Kelly v. Hooper, l.T. & C. C. C. 197 ; Seton, 908 ; ante. 3 MUlington v. Fox, 3 M. & C. 338, 351. 4 Whittingham v. Woolen; 2 Swanst. 428 : see also Baily v. Taylor. 1 R. & M. 73 ; and as to the form of the injunction, where the defendant submits, see Attorney-General v. iJoyii?, 10 Jiu. N. £f. 309, V. C. W. 6 Bacon v. Spottiswoode, 1 Beav. 382, 384 : 3 Jur. 476 ; S. C. on appeal, nom. Bacon v. Jones, 4 M. & C. 433 ; 3 Jur. 994 ; Rodgers v. Nowilt, 6 Hare, 326, 329 ; Cuddon v. Morley, 7 Hare, 202, 206 : Licke'oson v. Grand Junction Canal Company, 15 Beav. 260 ; Davies v. Marsltall, 1 Dr. & Sm. 567, 660: 7 Jur. N. S. 720, 722. As to the effect of lacluis or acquiescence, sec Attorney-General V. Luton Board 0/ Health, 2 Jur. N. S. 180,182, V. C. W. ; Patching \. Dul/bim, Kny, 1, 9; Johnson v. Wyalt, 2 De O. J. & S. 18 : 9 Jur. N. S. 1333. 6 Baily v. Taylor, ttbi sup. 1708 INJUNCTIONS AND RESTRAINING ORDERS. previousljr obtained an injunction, he has the obligation of making out a clear and unexceptionable title at the hearing imposed upon him, and, if he fails in that, he will not be allowed to use the facts proved in the cause as evidence of a prima facie case, giving him a right to further time, for the purpose of enabling him to establish more satisfactorily his legal title. The principles above laid down do not, of course, applj' to those injunctions which are only granted at the hearing of the cause : such as mandatory injunctions ; ^ injunctions to restrain the setting up of outstanding terms ; and others of that description. With respect to tlie cases in which the Court will decree per- petual injunctions at the hearing of the cause, it may be mentioned, that if a decree has been made for the performance of trusts, the defendant will be perpetually enjoined from setting up a legal estate in order to overturn it.- So, if a will is established against an heir, who suffers the bill to be taken pro ronfesso against him : as that, in effect, is confessing he has no claim, if he permits the decree or order, by which he is excluded, to be made absolute : which is, in effect, admitting that if he had any claim he has abandoned it : the Court will enforce the decree or order, until it is duly reversed : and it will grant, for that purpose, a perpetual injunction.' Perpetual injunctions will also be decreed, where the same question has been frequently litigated in the same manner ; or where it is likely to be contested in a multiplicity of suits. This is the foundation for a bill of peace, where it is necessary to quiet the rights, after repeated ejectments : for such a proceeding, unless prevented, would become oppressive to the opposite party;* or, where there is one general right to be established against a great number of persons : as, the right of a parson against his parishion- ers for tithes ; or the right of parishioners against a parson for a ~ modus ; or the rights of a lord of the manor against his tenants 1 Gale V. Abbot. S Jur. N S. 1J37, V C. K. 2 Askcir y Fi>vUei-ers' Company, 2 Ves \i 90 ; Bacl-iiigham v. Buckingham, 2 Eq. Ca. Ab. pi. 11, 526. 3 Selliy V. Sctbi,, 2 Dick. 678- 4 LHijhtoii ■'.' Leighton, 1 P. Wms. 671: 1 Str. 404; -4 Bro. P. C. ed. T.)ml. .378; Demn- xl„-r\. Newenham., 2 Sch. k Lef. 199, 211 ; Earl of Bath v. Sherwiil, 10 Mod. 1 : 4 Bro. P. C. ed. Toml. 373 : Hodgson v. Duce, 2 Jur. N. S. 1014, V. C. S. ; Lowndes v. Settle, 10 Jur. N. S. 226 ; 12 W. K. 3911, V. C. K. CONTINUING OR GRANTING INJUNCTIONS AT HEARING. 1709 for enci-oachments ; or the right of the tenants against the lord for disturbance : for, as the difficulties would be insuperable if each of the parties should attempt to determine their particular rights by separate and distinct actions, the Court will put the whole in peace by a perpetual injunction.^ An injunction will also be granted at the hearing, whenever it is necessary for the purpose of complete justice : - although it is not prayed by the bill,^ As a general rule, an injunction can only be made perpetual at the hearing of the cause ; * and the plaintiff has a right to proceed with his cause for that purpose, although he has obtained an interlocutory injunction which has been acquiesced in by the defendant."^ By consent, however, the injunction may be made perpetual, on an interlocutory application.* It is not usual to issue a second writ when the injunction is made perpetual ; it may, however, be issued and served.^ An injunction which has been made perpetual is so far final as to remain in force notwithstanding the abatement of the suit ; for if it was necessary to revive upon every abatement, that would be in effect a perpetual suit.^ Consequences of the Breach of an Injunction or Restraining Order. The remedy, in the event of the breach of~an injunction or restraining order, is by committal ; and not by attachment.* What will be considered as a breach, depends entirely upon the form of the injunction or order, and the nature of the act to be prohibited.^" Any person who acts in contravention of it will be held to have been guilty of a contempt, and may be ordered to be 1 Lord Tenham v. Herbert, 2 Atk. 483 ; Naym- of York v IHlk inijton, 1 Atk. 282 ; Cuinirrs v. Lm-d Abergavenny, ib. 28(j ; but see Lord Sefton v. Lord Sallshury, 7 W. R. 272, V. C W. 2 Dickenson v. Grand J'unctwn Canal Company, 15 Beav. 260. 3 Blomfield V. Eyre, 8 Beav, 250, 259 : Jur. 717 ; Reynell v Sprye, 1 De G. M. & G 660 ; but see Russell V. London, Chatham d- Dover Railway Company, 4 Gili. 403 ; y 0. noiii Norman Scott- Russell V, London, Chatham ct- Dover Railway, 9 Jur. N. S. 1007. 4 Day V. Snee, 3 V. & B. 170 ; Setan, 944. 5 Duke of Beaufort v. Morris, 6 Hare, 350 ; see S- C. 2 Phil. 683 : 12 .Jur. (iU 6 Seton, 944 ; Morrrll v. Pearson, 12 Beav. 284. 7 Braithwaite's'Vr. 229. 8 Askew V. Townsend, 2 Dick. 471 ; S. C. nom,. Ascough v. Townsi-nd, cited 3 Ves. 197. As to the effect of abatement upon an interlocutory injunction, see ante. 9 Braithwaites Pr. 228 ; Seton, 946, 947 ; Angerstein v. Hunt, 6 Ves. 483 ; Gooch v. Marshall, 8 W. R. 410, V. C. W. 10 See St. John's College \: Carter, 4 M. & C. 497 ; S. C. ,iom. St. John's College v . Pnilt. 3 Jur. 187 ; Money v. Jordan, 13 Beav. 229. 1710 CONSEQUENCES OF A BREACH. committed.^ An injunction was issued restraining the defendant from removing logs from a certain specified lot of land ; before this, he had removed the logs from the lot to the adjoining road allowance, and after being served with the injunction he took these away to his mill. The Court refused to commit him for a breach of the injunction.^ An injunction operates from the date of the order, and not from the sealing of the writ ; ■' and although it has been irregularly obtained, it is still an order of the Court, and must be discharged before it can be disobeyed.* Where, however, the defendant and his solicitors had been guilty of a breach of an injunction which was irregular. Lord Eldon refused to commit them ; but ordered them to pay the costs occasioned by the breach, and of the motion to commit.^ Before the Court will punish for a breach of an injunction or restraining order, it must be clear that the party knew that the injunction had been issued, or that the order had been made. Strictly speaking, he ought to be served with the writ or order itself, in the manner already pointed out ; but circumstances may justify a committal, without the actual service of the writ or order: as where the matter is pressing, and there is not time to procure it : in which case, as we have already seen," the immediate service of the writ will be dispensed with, and service of a copy of the minutes of the order, or of a notice of its having been made, will be sufficient. A defendant is bound to obey any injunction of which he is made aware, before being served with it ; but the plaintiff must not be guilty of delay in effecting formal service, as the rule for dispen- sing with such service applies only until the plaintiff has time to make the service.' 1 Harvey v. Mountague, 1 Vem. 57, 122 ; Lord Wellcdey v. Earl qf^Im-ninrjton, 11 Beav. 180, 181 ■ 12 Jur. 367. 2 Ball V. Sherlock, 16 Grant, 658. 3 Osborne v. Tennanty 14 Vew 136 ; James v. Dowries, 18 Ves. 522 ; Rattray v. Bishop, 3 Madd. 220. 4 Bobiiison V. Lord Byron, 2 Dick. 703 ; Woodward v. King, ib, 797 ; S. C. nom. Woodward v. Earl Lincoln, 3 SwaHSt. 626. .') Partington v. Booth, 3 Mer. 148 ; Dreivry v. Thacker, 3 Swanst. 546. 6 Ellerton v. Thirsk, 1 J. * W. 376 ; Gooeh v. Marshall, 8 W. R 410, V. C. fl'. 7 Stewart \. Richardson, 17 Grant, 160. INJUNCTIONS AND RESTRAINING ORDERS. 1711 In some cases, a committal may be ordered, where neither the writ nor the minutes of the order have been served, nor any per- sonal notice given. Thus, it was held, by Lord Hardwicke, that if the person was in Court at the time the order for an injunction was pronounced, that alone would be sufficient notice;^ and if the party remains in Court, until the order is about to be made, he cannot, by leaving at that instant, avoid its consequences. - So also, if he is informed that the injunction has been granted, and there will be no delay on the part of the plaintiff in endea- vouring to get the order drawn up, the defendant will be com- mitted for the breach of it : because it would be a contempt to act contrary to such an order, when he knew the order was made. In these and the like cases, all the mischief might be done, and the Court might as well grant no injunction at all, unless this kind of notice was to be held sufficient. In the instance of an injunc- tion against committing waste, the party in the interval might lay the axe to the trees ; or, if it was against marrying a ward of Court, the marriage might be had next morning, by a license fraudulently obtained.^ In short, the Court will not, under such circumstances, permit a man to elude its justice, by doing that, before the injunction is sealed, which, if it was actually sealed, would be a contempt ; but the plaintiff must not be guilty of any tmnecessary delay, either in getting the order drawn up, of in serving it, or the writ, when obtained.* The order for committal is obtained upon motion, of which notice must have been duly served personally upon the person committing the contempt.* The terms of the notice of motion should be that the party " may stand committed" to prison, for breach of the injunction." If the breach has' been committed by a person who was not named in the writ or order, the notice or motion must be, that he may be committed for his contempt, in knowingly assisting in the breach.'' The plamtiff may also, it 1 Anon. 3 Atk. 567 ; SHp v. Harwood, ib. 564. ■2 Osborne v. Tennant, 14 Ves. 136. 3 Per Lord Eldon, in Eimptan v. Hve, 2 V. & B. 361 ; Vansandau v. Hose, 2 J. & W. 2(14. 4 James v. Downes, 18 Ves. 522 ; Bateman v. Wiatt, 11 Beav. 587. 5 A ngerstein v. Hunt, 6 Ves. 488. 6 Where the injunction is that he may do a particular thing, the order is, that he may do it by a par- ticular day, or stand committed : Durant v. Moore, 2 K. & M. 33. It seems the motion to com- mit can only be made on a motion day ; Saxby v. Saxby, 7 Sim. 140 ; and see ante. 7 Lord Wellesley v. Earl of Momington, 11 Beav. 180, 181 : 12 Jur. 367. 1712 ( 'OXSEQUENCES OF A BREACH. seems, obtain an order, ex parte, that the party may stand com- mitted on a certain day, unless he shows cause against it ; which order must be personally served upon the'party to be committed. ^ But, whether it be an order nisi, or a notice of motion for an absolute committal, the service must be personal : unless an order for substituted service is obtained. Thus, where the defendant has bsconded, an order may be obtained, on ex parte motion, that ser- vice on his solicitor, or at his last place of abode, shall be deemed good service ; and, upon that service, under such circumstances. he may be committed.^ It will be recollected that Order 6, abolishes Orders nisi; and Order 295 provides that " In lieu of an Order nisi, notice is to be given of the motion for an Order absolute.'' All affidavit of the personal service of the notice of motion should of course be prepared and filed ; and on the day named in the notice, the motion should be made, by counsel for the plaintiff, for the commitment. The motion must be supported by affidavits, proving the due service of the notice of motion ; that the party had notice of the injunction or restraining order ; and that he has committed a breach of it.^ Lord Eldon is reported to have said,* that a motion to commit, for breach of an injunction, could not be made without pro- ducing the writ ; but, in a case before Lord Cottenham, he held, that if a party, having notice of an injunction, is guilty of a breach of it, he may be committed, without the production of the writ.^ If, on the hearing of the motion, the facts are disputed, a trial of the question of the fact will, if necessary, be directed.'' 1 hurant V, Moore, 2 R. & M. 33; Blaiichard v. Cawthorne, 6 Sim. 165. ■' Pulteney v. Shalton, 5 Ves. 147 ; Pearce v. CrutchJUld, 14 Ves. 206 ; and nee Re Boger, 3 Jur. N. S. 930, V. C. W. :i As to the neeessar3' evidence, see St. John's College v. Carter, 4 M. & C. 497 ; S. C. nam. St. John's College v. Pratt, 3 Jur. 187. For form of order, see Seton, VM5. 4 Bllerton v. Thirsk, 1 J. & W. 376. .> McNeil V. Oarratt, C. & P. 98 : 5 Jm-. 8.36. C> Aaar v. Regfnt'a Canal Company, G. Coop. 77 INJUNCTIONS AND EESTRAINING ORDEKS. 1713 The order for committal^ is drawn up, in the usual manner,^ and delivered by the party who has obtained it to the sheriff : who will thereupon proceed to execute it. If the breach of the injunction or order was the result, rather of an error in judgment than of a wilful contempt, the Court will not direct a commitment ; but will merely order the party to pay the costs incuri-ed by the breach of the injunction or order, and of the application ^ The plaintiff may, also, by his acquiescence in the breach, waive with the ordinary process : though, strictly speaking, no act of the parties can amount to a waiver of a contempt of the Court.* Peers, and others entitled to privilege of peerage, and Members of the House of Commons, are not liable to be committed for a breach of an injunction or order, but the Court will order a sequestration to issue.^ The same course of proceeding may be adopted, in the case of a corporation aggregate.** Although the injunction or order is irregular, a party acting in contravention of it wiU be guilty of contempt.' The proper course, where there is an irregularity, is to move at once, upon, notice, that it may be discharged for irregularity .* An order for committal will be irregular, if it does not state the af&davit of service of the restraining order, or injunction, and of the notice of motion to commit, or that the defendant has appeared by counsel on the hearing of the motion (if that was the case. J In 1845 the plaintiff obtained an injunction restraining the defendant from suffering to continue any dam, wherel)y the natural flow of the river, on which they both had mills, should be inter- 1 For form of order, see Seton., 945, No. 1. 2 A nte. 3 Bullenv. Oi'ey, 16 Ves. 141-144; Leonard v. Attwe.lt, 17 Ves. 386, 386; IJrewiy v. T hacker, S Swanat. 646 ; Partington v. Booth, 3 Mer. 148 ; Rmitien v. Rotlischild, 14 W. E. 96, V. 0. S. 4 Mills V. Cobby, 1 Mer. 3. 5 See Robinson v. Lord Byron, 2 Dick. 703. 6 Spokes V. Banbury Board of Health, 14 W. R. 128, V. ('. W, For form of order, see .sV/..n, 946, No. 2. 7 Ante. S Robinson v. Lord Byron, ubi sup. 'J Stephens v. Workman, 11 W. E. 603, W L'. K. l/l-t CONSEQUENCES OF A BREACH. fered witli to the injury of the plaintiff's right ; to this bill no answer was ever filed, but a motion to dissolve the injunction was made and refused, and in the same year the plaintiff recovered a verdict against the defendant at law, in resjject of the same matters ; an arrangement was then made between them that the dam should remain, and that each i)arty should have the exclusive use of the water for a certain portion of every day, and this agreement was acted on for nearly seven years : the defendant then began to make a limited use of the water all day. and contended that from some improvements he had introduced into the machinery of his mill, this would not interfere with the plaintiff's rights ; the plain- tiff denied this, and moved to commit for contempt. Held, that the delay was no answer to the motion, that the defendant having abandond the agreement, the plaintiff had a right to fall back on his injunction ; that on this application the projjriety of granting the injunction originally was not a proper subject of consideration, and the Uourt being of opinion that the continuance of the defen- dant's dam was a breach of the injunction, ordered the defendant to stand committed in two weeks, unless in the meantime he obeyed, the injunction.^ A servant after leaving his master's service con- tinues bound by an injunction issued while he was a servant against the master and his servants to restrain waste. Where an injunc- tion forbids the cutting down of trees, it is no answer to a motion to commit for breach of the injunction, that the trees cut down in contravention of the writ were of little value. A servant who has notice of an injunction may be committed for breach of it, though he has not been served with the writ.^ Where a party commits a breach of an injunction after service of the order upon his soli- citor, but before personal service of the injunction upon the party enjoined, the Court will commit him for contempt.^ In this case, Esten, V.C, held that notice to the solicitor that an injunction had been ordered was sufScient, and that the defendant having violated the order, was guilty of contempt, and he therefore granted the order nhi. No cause having been shown on the return of the order, an attachment was issued against the defendant for breach of the injunction. An attachment to commit a party for contempt will now be granted merely for non-payment of the costs of the con- 1 (ramble v. [Iimland, 3 Grant, 281 2 Bnmn v. fiagr, \i Grant, i:,. 3 Andrewx v Manlson, S U. C. h. J. 74. STOP ORDERS. 1715 tempt.i The difficulty in this ease arose on Section 13 of the Act respecting Arrest and Imprisonment for Debt — ch. 24, of Con. Stat. U. C. An injunction while it stands should be obeyed ; and where after twelve weeks had elapsed from the service of the injunction without the bill being served, the defendant treated the injunction as gone, the Court, while refusing a motion to commit for breach of the injunction, refused the defendant his costs of resisting the application. Where an ex parte injunction is granted before the bill is served, an office copy of the bill should be served with the injunction, or as soon as possible afterwards. Where an ex parte injunction was served on the 24th December, and the bill was not served up to the 13th May following, the injunction was dissolved for the neglect to serve. ^ After an injunction restraining the fell- ing of timber had been issued, and on the same day the writ was served, the plaintiff entered into a written agreement with the princi- pal defendant in the cause, by which the latter agreed to give up possession of the premises in question on a particular day, and to refrain from cutting or removing any timber cut, in the meantime and the plaintiff thereby agreed "that I, the said T. M. do hereby, upon the above conditions being complied with, withdraw all suits, now pending," &c. The defendant having, notwithstan/iing, con- • tinned to cut down and remove the timber, a motion was made to commit him for breach of injunction, when it was held, that the suit was still pending the acts agreed to be done by the defendant, being a condition precedent to the withdrawal of the suit.^ Stop Orders. Where there are funds or securities in Court, it will in its own jurisdiction, without any statutory authority, exercise the power of issuing what are called Stop Orders. Order 286 provides that "Where any stock, debentures, funds, securities, or moneys, are standing in Court to the credit of any cause, or to the account of any class of persons, or are invested in the name of the Eegistrar, or other officer of the Court, and an order is made to prevent the transfer or payment of such stock, 1 Dickson V. Cooke, 1 Cham. Rep. 210. 2 Benm v. Swisher, 13 Grant, 438. 3 Mulhiillaiid V. Doimes, 14 Grant, 106. 84 1716 WRITS AND ORDERS IN THE NATURE OF INJUNCTIONS. debentures, funds, secui-ities, or moneys, or any part thereof, with- out notice to the assignee of any person entitled in expectancy or otherwise to any share or portion of such stock, debentnres, funds, securities, or moneys, the person by whom any such order shall be obtained, or the share of such stock, debentures, funds, secu- rities or moneys affected by such order, shall be liable, at the dis- cretion of the Court or a Judge, as the case may be, to pay any costs, charges and expenses, which by reason of any such order hav- ing been obtained, shall be occasioned to any party to the cause or matter, or any person interested in any such stock, debentures, funds, securities, or moneys." Any person, although not a party to the cause or proceeding in which a fund in Court is standing, who has become entitled to any such fund, or a share thereof, or to any lien or cliarge thereon, may apply to that branch of the Court to which the cause or proceed- ing is attached, for an order to prevent the fund in question being paid out, or otherwise dealt with, without notice to the applicant.^ A Stop Order will also be granted in favour of a judgment creditor, who has obtained a charging order at law, on a fund in Court ; ■^ and even where such a charging order had not been made, but the creditor had caused a writ oi fieri facias to issue, the Court has stopped, at the instance of the creditor, payment of funds in (lourt to the debtor.^ A Stop Order will not, in general, be made, unless the fund is actually in Court ; * and, therefore, where a sum of money had been ordered to be paid by one party to another, the Court refused, at the instance of a person who had obtained a charging order on it, to order it to be paid into Court, for the purpose of giving him an 1 llfjbsoti V. Shearwood, 8 Beav. 486; WilliaTiUi v. Symotids, 9 Beav. 523 ; Feititel v.\King's CoUetft', Cambridge, 11 Beav. 254 ; Hoole \ . Roberts, 12 Jur. 108, V. C. E. ; He Miller, 6 W. K. 23S, V. C. K. ; He Blunt, 10 W R. 379, V. C. K. ; Hawkesley v. Gowaii, 12 W, R. 1100, V. C. K. ; see also Welts V. Gibbs, 22 Beav. 204 ; Miller v. Pridden, 3 Jur, N. S. 78, V. C, K. Such an order has been made, on the application of the assignee of the interest of the sole next of kin of a lunatic : Re Moore, 1 M'M. & G. 103 ; Re Pigott, 3 M'N. & G. 268. 2 Miles V. Presland, 4 M. & C. 431 ; Hulkes v. Day, 10 Sim. 41 : 4 Jur. 1126 ; WkUfield v. Prickett, 13 Sim. 259 ; Watts v. Jeffreyes, 3 M'N. & G. 372 ; 16 Jur. 783 ; Wells v. Gibbs, 22 Beav. 204 ; Lord Hastings v. Beavan, 10 W. R. 206, L.JJ. ; Seton, 962—959 ; and see Warburton v. Hill, Kay, 470; Re Nowell, 9 Jur. N. S 512, 788 : 11 W. E. 668, 708, V. C. K. .{ Robinson v. Woode, 6 Beav. 338 ; Courtoy v. Vincent, 15 Beav. 486 ; and for the order in the latter " case, Jce Seton, 957, No. 8. 4 A Stop Order has, however, bean made to restrain the paj^ment of funds to be thereafter paid in, to a particular account : Re Duke of Cleveland' s Harte Estates, cited Morgan, 489. STOP ORDERS. 1717 opportunity of enforcing his right against it by means of a Stop Order.^ AppHcations for Stop Orders may be made by motion in Cham- bers, where the person whose fund or interest is to be affected con- sents, or joins in the application : in other cases, the application must be made by petition. The petition must show the title of the person, the payment of whose fund is intended to be restrained : although it is not abso - lutely necessary that it should show the particular share of the fund to which he is entitled ; and it must also show the title of the assignee.'' The Court must have proof of these facts, whether the appli- cation be made by petition or motion. The title of the assignor will usually appear from the proceedings in the cause : where this is not the case, the fact must be established by affidavit.* The title of the assignee is generally proved by the person whose fund is to be affected either joining in the application, or appearing and admitting the fact : when this is not the case, it must, in the case of a petition, be proved in the regular way.* To obviate the expense of a strict proof, it is now usual, where the applicant claims as assignee, for the assignment to give him the power to use the name of the assignor as an aipplicant. It was formerly necessary, upon applications for Stop Orders, that the petitioner should give notice to all the persons interested in the fund ; but Order 287 now provides that " A person applying for such order, shall not be required to serve notice thereof upon the parties to the cause, or upon the persons interested in such parts of the stock, debentures, funds, securities, or moneys, as are not sought to be affected by the order : " and the applicant must pay the costs of such other parties if they are served with the petition or notice of motion.^ 1 yewton V. Askew, 11 Beav. 446 : 12 Jul-. 531, 766 ; WelUssUu v. Morningtm. 11 W. R. 17, V. C. K. 2 Wood V. Vincent. 4 Beav. 419. '■' Quarman v. Williams, 5 Beav. 133. 4 IVood V. Vincent, ubi svp. ; Winchelsea v. Qarretty, 1 Beav. 223. 5 Glazhrook y. Gillatt, 9 Beav. 611. 1718 WRITS AND ORDERS IN THE NATURE OF INJUNCTIONS. It is, however, still necessary to serve the person whose interest is intended to be affected, with a petition which is presented by the assignee alone. ^ The order, when duly passed and entered, or an ofQce-coj^y, must be left at the Eegistrar's Office ; and until this has been done, it does not take effect. The Registrar will, however, delay parting with a fund, if he has received notice of an intended application for a Stop Order.' A Stop Order does not decide anything as to the rights of the parties ; it is, therefore, in general, unnecessary to state that it is made without prejudice;^ but where the fund had been paid in under the Trustee Relief Act, the order was expressed to be made without prejudice to the trustees' lien for the costs.* Where a husband and wife had, previously to the 20 & 21 Vic, ch. 57, assigned her reversionary chose in action, the operation of the order was limited to the lifetime of the husband.^ An incumbrancer, who has obtained a Stop Order, and duly served it on the Registrar, thereby obtains priority over a previous incumbrancer who has not done so ; ^ but this priority only extends to the charge in respect of which the Stop Order was obtained.'^ A solicitor's lien, on a fund recovered by his exertions, has priority over a Stop Order obtained by an assignee from his client.^ This Court has no jurisdiction to grant a " Stop Order," at the instance of a judgment creditor of a party entitled to funds in Gourt.9 1 Parsons t. Orooine, i Beav. 521. 2 Seton 9.52, 953. 3 1/iicas V. Peacock, 9 Beav. 177. 4 He Blunt, 10 \V. E. 379, V. C. K. 5 ir.ii-MU V. Policy, 1 Do G. &S 143. 6 Swcnnicv SwaynCyW Beav. 463 and see Greening v. Beck/ord, 5 Sim. 195; tlttlke.-^ v. Z>aJ/, 10 Sim H ■ 4 Jur. 1126 ; Warbvrtf.n v. Hill. Kav, 470 ; Elders. Maclean, 3 Jur. N S. 283 : 6 W. R. 447, V. C. K. ; Livescy v. Harding, 23 Beav. 1-11 : Bartlett v. Bartlett, 1 De G. k J. 127 ; 3 -Jur. N. S. 705 : Day v. Day, 1 De G. ii J. 144 : 3 Jur. N. S. 7S2 ; Thompson v. Tompkina, 2 Dr & Sm. 8 ; Thomas v. Cross, 2 Dr. & Sm. 42.5 ; 11 Jur. N. S. 384, 386 ; but see Grainage v. Warner, 13 W. E. 833, V. C. 8. 7 Macieod v Buchanan, 33 Beav. 234 : 9 Jur. N. S. 1266 ; 10 Jur. N. S. 223 : 12 W. E. 514, L. JJ. s Haymcs v. Cooper, 33 Beav. 43 : 10 Jur. N. S. 303. 9 Lee v. Bell, 2 Cham. E. 114 ; Purkis \ . Morrison, 2 Cham. R. 117. STOP ORDERS. 1719 The applicant is not, in general, entitled to the costs of the Stop Order ; but they may be given him, where it has been ren- dered necessary by the conduct of the parties ; ^ or where his assignment authorises him to apply to the Court for it ; but they should be specially mentioned in the direction for taxation.- The fund to which the Stop Order applies will not be paid out, or otherwise dealt with, until it is either directly discharged, or some order is made expressly directing the fund to be dealt with, notwithstanding the Stop Order. A person who has obtained a Stop Order must, therefore, be served with notice of any appli- cation to deal with the fund ; and at the hearing of the application the Court will either discharge the Stop Order,^ or direct payment to the person who has obtained it, according to what appears to be the rights of the parties ; or, if the rights of the parties cannot then be satisfactorily ascertained, it will direct the fund to be retained in Court, for a limited time, to give the claimant an opportunity of taking the necessary steps for asserting his claim.* Where the person who has obtained a Stop Order afterwards assigns his interest in the fund affected thereby, the assignee may obtain a Stop Order in his favour on petition, or, by consent, on motion, supported by production of the former Stop Order, and an affidavit of his title. The orfer, in such case, either directs , that the fund be not dealt with without notice to the assignee, instead of the person named in the former order ; ^ or else, that the assignee be substituted, as the person to whom such notice is to be given. ^ "An order may be obtained to stay the delivery out, without notice to the applicant, of documents deposited with the Record and Writ Clerk,^ or the Registrar.* A Stop Order will be discharged with costs, if it has been irregularly obtained.^ 1 Grimsby v. Webster, 8 W. R. 726, V. C. K. ; Hoole v. Roljcrts, 13 Jur, 108, V. C. E. 2 Waddilove v. Taylor, 6 Hare, 307 ; Morgan & Davey, 47. 3 By consent, an order to discharge the Stop Order may be obtained on summons at Chambers ; and see, in the case of purchase orders ante. For form of order, see Seton, 953, N. 6. 4 Betkune v. Kennedy, 3 Beav. 462 ; FeUtel v. King's College, Cambridge, 11 Bcav. 254 ; and see Wastell V. Leslie: 15 Sim. 453, n. ; Thorndike v. Hunt, 3 De G'. *; J. 563 : 6 Jur. N. S. 879. 6 Robertson v. Wynch, M. R. in Chambers, 26 Feb. 1861, Reg. Lib. B. 382. The statement of this order in Seton, 957, No. 10, differs from Reg. Lib. 6 Tench v. Cheese, M. R. in Chambers, 26 Jan. 1865, Reg. Lib. B. 232. 7 Lang v Griffith, cited Seton, 957. 8 WilliaMs v. SymoMs, 9 Beav. 523. !) Re Sowell, 9 Jur. N. S. 788 : 11 W. B, 898, V. C. K. ( 1720 ) CHAPTEE XXXVIII. CONTEMPT. Effect of a Contempt upon the Proceedings in the CdUKe. Besides the personal and pecuniary inconvenience to wliieh a party subjects himself by a contempt of the ordinary process of the Court, he places himself in this further predicament : viz., that of not being in a situation to be heard, in any application which he may be desirous of making to the Court. Lord Chief Barou Gilbert lays it down, that " upon this head it is to be observed, as a general rule, that the contemnor, who is in contempt, is never to be heard, by motion or otherwise, till he has cleared his contempt, and paid the costs : as, for example, if he comes to move for any- thing, or desires any favour of the Court." ^ Thus, in Lord Wen- man V. Oshaldiston,^ where a defendant, being in contempt for not putting in his examination pursuant to an order, to avoid a seques- tration moved the Court that, upon his undertaking to pay in a week's time what should appear to be due to the plaintiff, all further process of contempt should be stayed, the Court declined making any order upon the motion, but directed the appellant to clear his contempt, and then move ; and this determination of the Court was affirmed by the House of Lords, upon appeal. But where, after a petition had stood over at the request of the respondent's counsel, for his convenience, the petitioner incurred a contempt, which had not been cleared when the petition came on again, it was held, that the petitioner was, nevertheless, entitled to be heard ; ^ and, it seems, that a party who is in contempt for non-payment of costs, is not thereby prevented from moving for leave to defend in forma pauperis} 1 Gilh. For. Bom. 192 ; Vowlcs v. Toung, 9 Ves. 172 172. 2 2 Bro. P. C. Ed. Toml. 276 : 2 Eq. Ca. Ah. 222, PI. 1. 3 Bristoue v. Needham, 2 Phil. 190 : 1 C. P. Coop. t. Cott. 286. 4 OlrlfrU V. Cohhett. 1 Phil. 613, -614. EFFECT OF A CONTEMPT UPON PROCEEDINGS IN CAUSE. 1721 The rule, that a party in contempt cannot move till he has cleared his contempt, is, in practice, confined to cases where such party comes forward voluntarily, and ask for an indulgence ; and. therefore, a defendant cannot object to a cause being heard because the plaintiff is in contempt.^ In like manner it has been held, that a mortgagee, defendant to a bill of foreclosure, who is in contempt, could not move, under the 7 Geo. II. ch., 20, for a reference to take an account of the principal and interest due upon the mortgage.^ And so, where a party in contempt had applied for and obtained the costs of an abandoned motion, under Lord Eldon's order,^ Sir Lancelot Shadwell, V. C, upon motion, discharged the order." So also, where a motiea had been refused with costs, it was held, that the motion could not be renewed, though on different grounds, until the costs had been paid.^ It is to be observed, however, that the rule, that a party cannot move till he lias cleared his contempt, is confined to proceedings in the same cause ; and that a party in contempt for non-obedience to an order in one cause, will not be tliereby prevented from making an application to the Court in another cause relating to a distinct matter, although the parties to such other cause may be the same ; ® and this privilege has been carried to the extent of allowing a defendant, in each of two creditors' suits to administer the same estate, to move in one of them, in which he was not in contempt, to stay proceedings in the other, in which he was." Tt would seem that a plaintiff prosecuting his decree is entitled to do" so, notwithstanding he may have been placed in contempt for disobedience to an order of the Court for payment of money. 1 Ricketts v. Motminfjt'in, 7 Sim. 200 ; and see the cases on this subject collected in 1 C. P. Coop. t. Cott. 208 ; see also Fvtmye v. Kennard, 2 GifiE. 110 : Fry v. Eriysst, 9 Jur. N. S. 1171 : 12 W E. 97, V. C. W 2 Hewettw MCartney, 13 Ves. 660. 5 Gen. Ord. 5 Au!>-. 2818 : Sa7id. Ord. 706 : Beav. Ord. 3 : now Ord. XL. 23. 4 Ellis V. Walmsley, 4 L. J. Ch. 60 ; S. C. nom. Etlice v. Walmsley, 1 C. P. Coop. t. Cott. 207, where the cases are collected as to the proceedings, for his own advantage, which a part}' in contempt cannot take. 6 OUmd V. CohbM, 12 Beav. 91, 95. 6 Clark v. Dew 1 R. & M. 103, 107 ; Gompertz v. B'.:-.l, 1 Y. & C. Ek. 619 ; Tayl here a ne exeat had been applied for upon admissions in the answer ; but that the admission would certainly do as well as an affidavit. 6 Ante. 7 Ibid. 8 Ro&dam v. Hetherington, ubi sup. 9 Ibid. : Darley v. Nicholson, 1 Dr. & War. 66. 10 Jackson v. Petrie, ubi sup. ; and see at Law, Cldtty's Arch. 740. HOW GRANTED. 1741 acquired his knowledge from the information of others, it will be insufficient. Thus, where a ne exeat had been obtained on the affidavit of the plaintiff, who was an infant, it was discharged, although the affidavit was positive : because it appeared, from the statement in the bill, that the plaintiff, who was eighteen years of age, could only have known some of the facts deposed to from the information of others.^ The only exception to the rule, that the affidavit must be posi- tive, is, as we have seen, in the case of "an account : in which the plaintiff may swear, that, to the best of his belief, such a sum will be due to him on the balance.^ It is also necessary that the evidence, on which the application for this writ is founded, should show that the defendant intends going abroad. It seems, formerly, to have been thought, that an affidavit was, in this respect, sufficient, if it merely stated a belief of the defendant's intention to quit the kingdom, without going into the circumstances upon which that belief was founded.^ But it is now held, that an affidavit, to obtain this writ, must be positive as to the defendant's intention to go abroad, or to his threats or declarations to that effect, or to facts evincing it ;* and must show the means of knowledge of the deponent. In Oldham v. Oldham, * the Court observed: "it is not sufficient to swear that another person said so ; " but this must be understood with some qualifi- cation : for, in a subsequent case, where the affidavit was made, " not by the plaintiff, but another, to his belief of the defendant's intention to quit the kingdom, upon information received from two persons of his family that they were about to go to the Isle of Man," the writ was granted by Lord Eldon : who, after stating that the point had frequently embarrassed him, expressed himself thus: "But there are cases in which the Court appears to have regarded, and acted upon, the nature of the information and belief. X Hoddant v. Setherington, 5 Ves. 91, 2 Ante, 3 Beames on Ne exeat, 33 ; Russell v. Asby, 5 Ves. 96 : see also Chapeattrovge v. Carteaux, 8 Vee. 697, n. « Beames on JVc exeat, S3 ; Anon., 2 Ves. S. 439 ; Oldham v. Oldham, 7 Ves. 410 ; JStches v. Lance, ib. 417 ; AiHsinck v. Barklay, 8 Ves. 597 ; Hannay v. McEntire, 11 Ves. 54 ; Jones v. A lephsin, 16 Ves. 470 ; see also Taylor v. Leitch, 1 Dick. 880 ; Shermam v. Shermam, 8 Bro. C. C. 370 ; Byde v. WhUfield. 19 Ves. 342 ; Sichell v. Raphael, 4 L. T. N. S. 114, V. C. W. A» to the evidence requlrecl at Law, see Chitty's Arch. 738. 6 7 Ves. 410. 1742 THE WRIT OF ARREST. The information is, in this instance, given by persons of the defendant's family: who, therefore, could not be brought forward to make an affidavit ; and the circumstance, that the party has not made the affidavit, has not been considered an objection." In Knight v. Watts,^ Lord Hardwicke granted the writ upon an affidavit which, after stating the defendant had denied himself, and kept out of the way, and had sold off his goods, and left his house uninhabited, proceeded thus: "that the plaintiff, upon iuquiry after the defendant, was informed, that one Mr. Bulcock acted as an agent for him ; and that, thereupon, the plaintiff and his solicitor applied to the said Mr. Bulcock : who informed the plain- tiff, that, unless he would take an assignment of two houses, (to which the defendant pretended he was entitled, if he arrived at the age of thirty,) and give the defendant a discharge for all the monies he had received, the defendant would immediately go abroad, and would either take with him the deeds, or would burn, or destroy the same."' The affidavit will be sufficient, if it states, that the debt will be endangered by the defendant's quitting the kingdom : without stating that the object is to avoid the jurisdiction.^ The order for the writ states the amount for which security is to be given, and before it will be made, the applicant is almost invariably required to give his tmdertaking to abide by any order the Court may make as to damages.* Where the application is made on behalf of infants, the undertaking is given, by their next friend signing the Eegistrar's book.-'' The affidavits in support of the application must not be sworn until the bill is filed f or before a commissioner who is a solicitor 1 Collinsan v. , 18 Ven. 353 ; Bearties on Ne exeat, 34. 2 2 C. P. Coop. t. Cott. 257. The defendant had been appointed by the plaintiff to collect an intestate's e tate, and had the deeds in his possession for that purpose ; ib. ; Beames 36. 3 Baker v. HaUy, 2 Dick, 632; Etches v. Lance, 7 Yes. 417 ; Tmnlinson v. Harrison. 8 Ves. 3X; Stewart v. Graham, 19 Ves. 313 ; Buehm v. Wond, T. & R. 332 ; and see Vanzeller v. VanxHer, 15 Jur. 115, V. C. K. B 4 For form of order, see Seton, 959. 6 Jones V. yorth, cited Seton, 360. 6 Anon., 6 Madd. 276; and see Franeome v. Francome, 11 Jur. N. S. 123 ; IS W. R. 366, L. C. 7 Hopkin v. Mapkin, 10 Hare, App. 27 : 17 Jur. 343. HOW GRANTED. 1743 The writ of ne exeat is directed to the sheriff, or other officer of the county or jurisdiction in which the party against whom it is issued is likely to he found.^ It is prepared by the solicitor of the t)arty ; and is sealed with the seal of the Eecord and Writ Clerks' office. The order for the writ must be pi'oduced, and a prcecipe left, at the time the writ is presented for sealing. The writ must be indorsed with the name and place of business of the solicitor for the party issuing it, and of his agent, if any ; or with the name and place of residence of such party, where he acts in person, and, in either case, with the address for service, if any ; and must be marked on the back, in words at length, with the amount of the sum for which the defendant is to give security. This is done as a guide to the Sheriff, to take sufficient security. by bail bond, for the defendant's yielding obedience thereto." Where the writ is issued against a personal representative, at the instance of a legatee, or person claiming a share of the residue, it must be marked for the whole amount due from the defendant : not to the plaintiff only, but to all the other persons interested in the estate ;* and it seems that the Court will sometimes extend the amount of the security required, beyond that of the debt sworn to, for the purpose of covering the costs of proceedings at Law.^ In Bnehm v. Wooci^ also, the writ was marked for th e full amount of the purchase-money, though the defendant was entitled to an abatement : the amount of which, however, had not been ascer- tained. Where the writ has been indorsed for a larger sum than is really due, there is no doubt that the Court will make an order that the security shall be given for so much only as is really due, without quashing the writ ; and that, too, upon the hearing of a motion to quash it." 1 On this subject, see ante. 2 Beames on Ne exeat, 93 ; and see form of order, Seton, 959, No. 1. 3 llinde, 611. 4 Pannet y. Tayler, T. & R. 100. See Boovey t. SutcUffe, 2 Eq. Rep. 706, V. C. W. 5 Bonner v. Worthington, Reg. Lib. Ifcil9, A. 12, cited Beames on Ne exeat, 94. 6 T. i E. 332. 7 Pannell v. Tayler, uH sup. 1744 THE WRIT OF ARREST. How executed. To carry this process into effect, the Avrit must be delivered to the proper Sheriff, or other officer, with instructions for executing it. By the terms of the writ, the Sheriff is to cause the party per- sonally, to come before him, and give sufficient bail or security in the sum indorsed on the writ, that he will nof go, or attempt to go, into parts beyond the seas, without leave of the Court ; and, on his refusal, he is to commit him to prison. It is said, that it is an abuse of this process to break open doors, and take the party in bed ; however, where this had been done, the Court refused to set him at liberty.^ When a caption is made, the defendant, to obtain his discharge out of custody, must execute a bond, conditioned as pointed out by Sec. 11 of the Arrest and Imprisonment for Debt Act. As the Sheriff is directed by the writ, to cause the defendant to give sufficient bail or security, he is not bound to take any security but what he may be satisfied is likely to prove effective. Thus, where the writ was marked in the sum of 36,000i., and the defend- ant, after he was taken into custody, tendered to the Sheriff, as a security, the bond of himself and two sureties, in the sum of 36,000L, and a deposit of that sum in the Bank of England, in the joint names of the Sheriff and sureties, which the Sheriff refused to accept, and, although he afterwards proposed to release the defendant out of custody, upon his finding four sureties, in 36,000Z. each, yet he ultimately insisted that the 36,000L should be paid into his hands before the defendant was discharged. Lord Eld on held, that the Sheriff was right in the course he had pursued : for whatever the Sheriff does, under a writ of ne exeat, is upon his own responsibility ; and what he had done, was merely to require a sufiicient security for his having the defendant to produce.^ From this it appears that, instead of bail, the Sheriff may take a deposit of the amount indorsed upon the writ.^ 1 Wyatt's Pr. R. 290 ; Curs. Cane. 466. As to the mode of executing wribi see anU 2 Boehm v. Wood, T. h E. S32, 340. 3 See Bonnar v. Worthington, Reg. Lib. 1819, A. 233. HOW DISCHAEGED. 1745 The Sheriff, after he has executed the writ, ought to return it : indorsing upon it a proper return of what he has done. If he has taken bail, it may be in the following form : " I have caused the within named A. B. personally to come before me, and he found bail in the penalty of £ , according to the command of this writ.."i If, instead of taking security according to the direction of the writ, the Sheriff takes a deposit of the amount indorsed on the writ, he should make a return to that effect ; and where the Sheriff omitted to do so, the Lord Chancellor ordered him to make his return within a given time.^ How discharged. The party may apply by motion, with notice, to discharge the writ, on the ground of irregularity, or upon the merits, supported, if necessary, by evidence : which is usually given on affidavit. ■' The defendant may also, by analogy, if he has not been interro- gated, put in a voluntary answer : which he wiU be entitled to read in opposition to the plaintiff's affidavits.* If security has been given, the notice of motion should state that application will be made, as well for the discharge of the writ, as that the bond may be given up to be cancelled. if, upon an application to discharge or quash the writ on the ground of irregularity, the Court thinks that it has been improperly issued, it will at once order it to be discharged. It will not, how- ever, discharge the writ, merely because it appears to have issued for a sum exceeding that for which it can be sustained ; but, in such eases, the amount for which it has been marked will be reduced.^ Nor will the Court discharge a writ of this nature, obtained upon affidavits substantiating declarations and acts of the defendant as evidence of his intention to go abroad, upon a counter-affidavit by the defendant denying the intention." The Court has also refused to quash the writ, upon the defendant's 1 Irnpcy, Oflt. Sheriff, p. 411. '2 Bonner v. Worthiufjton, Reg. Lib. 1819, A. 233. As to compelling the Sheriff to return a writ, see ante. 3 Grant v. Grant, 3 Rues. 698, 602; and see Hyde v. Whitfield, 19 Ves 342; Flack v. Holm, 5 ,i. J- W. 405, a.8;SicheU v. Raphael, 4 L. T. N. S. 114, V. C. W. ; Seton, 960. 4 Anderson v. Stamp, 11 Jur. N. S. 169, V. C. W. 6 Grant v. Grant, 3 Russ. 598, 611. () Whitehonse v. Partridge, 3 Swanst. 365, 375 ; Amsinck v. Barklay, 8 Ves. 694, 697. 1746 THE WRIT OF AKREST. affidavit that no debt was due, and that the plaintiff had made admission to that effect : the plaintiff having, by his affidavit, sworn positively to there being a debt.^ The Court will discharge the writ upon the merits, whenever it appears either that the plaintiff has no case, or that the defendant is not going out of the jurisdiction ;- and this it will do either absolutely, or conditionally : that is, upon the defendant's giving security with two sureties to answer such sum as may be found due from him in the cause. ^ The Court, in an alimony suit, on a motion to discharge the defendant from arrest under a writ of arrest, will look into the merits of the case so far as to enable it to judge whether the plain- tiff" has reasonable grounds to expect to succeed in her case; and in the absence of her showing such fair and reasonable grounds, or in the event of the defendant displacing the prima facie case made by her on obtaining the writ, he will be discharged. A writ of arrest had been granted on the affidavit of the plaintiff alleging violence and ill-treatment on the part of the defendant, and show- ing that the defendant had advertised his stock and farming imple- ments for sale. A motion was made to set aside this -^^Tit, and the violence and ill-treatment were denied. The plaintiff was shown to be a young robust woman,— the defendant an old man of 68 years, and the conduct of the plaintiff to have been violent and very immoral and unchaste. On the denial of the defendant of any intention to leave the province, and under the circumstances above stated, the writ was ordered to be set aside.* The Court will also discharge the •wvii, upon the defendant's pay- ing into Court the sum for which the writ is marked.^ Where the writ is directed to issue, until answer and further order, the Court will not discharge the writ merely upon the com- ing in of the answer, if it appears, upon the merits of the case, 1 Joneg V. A lephsin, 16 Ves. 470. 2 Leo V. Lambert, 3 Ruse. 417 ; Sichell v. Raphael, 4 L. T. N. S. 114, V. C. W. For the order in the latter ease, see Seton, 960. ;i Rodda-m v. Betherington, 5 Ves. 91, 95 ; Boon v. Collingwood, 1 Dick 115; Atkinson *. Leonard, 3 Bro. C. 0. 218, 223. For form of such an order, see Seton, 959, No. 2. 4 Macpkerson v. Macpherson, 2 Cham. Rep. 222. ;"> Evans v. Evans, 1 Ves. J. 96- Stewart v. Graham, 19 Ves. 313, 314 ; Dick v. Steinton, 1 V. & B. 373. HOW DISCHARGED. 1747 that there will be necessarily decreed things for the defendant to do at the hearing.^ It has also been decided, that a surety on a writ of ne exeat will not be discharged upon the principal being, by a subsequent pro- cess of the Court, committed to prison : as the surety is then in no danger.' Where the sm-eties applied to be discha|'ged, on the ground that the defendant was in custody for want of an answer, Lord Eldon refused to discharge them : observing, that there was no instance of it ; and that, on the contrary, there was a case in which the Com't had refused to discharge them.^ These last- mentioned applications were previous to the decree ; but where, after a decree against the defendant for the same matter as that for which the writ of ne exeat issued, the defendant, was in con- tempt, and in custody for not performing the decree, an order was made, on the application of the sureties, that they should be dis- charged, and the bond as to them cancelled.* If the defendant paj^s to the plaintiff the sum for which the defendant, has given security on a writ of nc exeat, the writ and security will be discharged, as to the principal as well as sm-eties, notwithstanding that it may appear from the proceedings in the cause that a much larger sum is due from the defendant to the plaintiff.^ Where, subsequently to the issue of the writ against a defendant, he took the benefit of the Insolvent Debtor's Acts, the writ was discharged upon his paying the costs of the application to discharge the writ, and relie^-ing the plaintiff from all liability on his undertaking as to damages, and from any action or other proceeding with respect to the writ.^ When an application to discharge the writ is granted, the dis- charging order ought also to restrain the person against whom the writ has issued from bringing an action for false imprisonment : 1 Atkithsoii V. Bedel, 1 Dick. OS. 2 Le Clea v. Ti-ot, Prec. in Cli. 230. "A bail in this Court, or in the Civil Law, is not discharged upon biinginjv in the principal, as he'is at Common Law : A rchepoole contra Burrell, Michas. 23 &24E1IZ.": MS. of Sir Geo. Carey, citedBiams on JVe exeat, 84, n. (14). TothiU's note of Archboll V. 7ja/'rf^?, which seems to be tlie same case, is, however, simply in these words: "A hail in this Court, or in the Civil Law, is discharged upon bringing in the principal, as he may at the Common Law " : Tothill, IT ; and see Griffith v. Griffith 2 Ves. S. 400. 3 Stapylton v. PeiU, 19 ^'es. 615 ; cited Beainef; on JVe exeat, 84. 4 Debazin v. Dehazin, 1 Dick. 96 ; Reg. Lib. 1743, A. 64. 5 Baker v. Jefferiet:, 2 Co.k. 22(> ; Bernnea on Xe exeat, 86. 6 James v. North, r, Jur. N S. 84 : 7 W. R. 160, V C. K. 86 1748 THE WRIT OF ARREST. otherwise, in the event of such an action being brought, although probably in all cases the Court would stop the action, yet the costs of the application for that purpose would be at the expense of the person by whom the writ had been obtained.^ Where the usual undertaking as to damages has been given, the Court will, if it considers that the writ has been improperly obtained, direct an inquiry as to the damages sustained by the defendant, and order payment of the amount certified in respect thereof.^ The Court will not, after the writ has been discharged in Equity, interfere to direct the party to be discharged from a subsequent arrest at Law for the same demand ; but will leave it to the Court of Law to determine whether, under the circumstances, the Com- mon Law process ought to be made available.* A "writ of 7ic exeat will not be discharged on the mere ground that, since it was ordered, the plaintiff has amended his bill : unless it can be shown that the amendments have varied" the case, as originally stated. The Court, therefore, will not make a special order, giving the plaintiff liberty to amend, " without prejudice to the tie exeat ; " but will leave it to him to obtain the common order, if he thinks he can do so with safety.* 1 Varley v. Sichulson, 2 Dr. & War 86. 2 SUhcll V. Raphael, 4 L. T. N. S. 114, \'. C. W. For the order in that cane, eee Setou, 960, No. 3. As to the prosecution of the inquiry at Chambers, see ante. 3 Walker V. Christian, 7 Sim. 367. 4 Grant v. Oraut, 5 Rust. 189. (■ 174-i) ) CHAPTER XL. RECEIVERS. In ivhat Cases appoinfad. A Receiver is an indifferent person, between the parties appointed by the Court to receive the rents and profits of real estate, or to get in and collect personal estate, or other things in question, pending the suit, where it does not seem reasonable to the Court that either party should do it ; or where a party is incompetent to do so : as in the case of an infant. A Receiver is bound to account for and pay what he receives or gets in, as the Court shall direct ; and, to secure his doing so, he is commordy ordered to enter into a recognisance, with sureties.^ The appointment of a receiver is a matter resting in the discre- tion of the Court ;^ and the receiver, when appointed, is treated as virtually an officer and representative of the Court, and subject to its orders.* Lord Hardwicke considered this power of appoint- ment to be of great imjiortance, and of most beneficial tendency : saying, " It is a discretionary power exercised by this Court, with as great utility to the subject, as any sort of authority that belongs to it ; and is provisional only, for the more speedy getting in of a party's estate, and securing it for the benefit of such person who shall appear to be entitled ; and does not at all affect the right.* The defendant cannot defeat a motion for a receiver by a general affidavit that he has a good defence to the suit ; he must specify the defence distinctly to enable the plaintifii" to meet it, and the Court to judge of it.° 1 Ord. 278 to 283 ; Wi/att's Pr. E. 355, 356 ; Harr. by Newl. 499. As to Receivers, see A dams on Eq. 447 : Chambeyt^ on Infants, 547—564; Fisher, 227 — 290 ; Jeremy on Eq. 248 — 263; Lewiii. on Trusts; em— 602, Mac2iheraoit on Infimts, 266-268; Setoii, 1002—1639; Storu Eq. Jur. »s. 827 338; Woodfall, 51. 2 Skip V. Harwood, 3 Atk. 664 ; and see Owen v. Ronaaii., 3 M'N. & G. 378, 412 ; 15 Jur. 339 ; 4 H. L. Ca. 997 : 17 Jur. 861. 3 Atif^el V. Smith, 9 Ves. 335 ; Hutchinson v. ilassarene, 2 Ball & B. 56 ; Jeremy on Eq. 248, 249. 4 Skip V. Harwood, uhi sup. ; and see Story Eq. Jur. s. 831. 5 Atkim V. Blain, 13 Grant 046. 1750 IN WHAT CASES APPOINTED. The most ordinary cases in which receivers are granted hy the Court, are those in which the suit arises out of claims by parties having equitable interests in the property, the subject of litigation. In such cases, the Court will appoint a receiver, for the purpose of protecting the property, till the question between the parties shall have been determined. And, in general, it may be taken as a rule, that where the legal estate is vested in a person claiming an inter- est paramount to that of the litigant parties, so that the litigant parties can only have equitable interests, the Court will grant a receiver : although, in doing so, it will always take care not to interfere with the rights of the party having the prior estate. Therefore, where a man has an equitable mortgage, " that is, if there is a prior mortgagee : then, if the prior mortgagee is not in posses- sion, the other may have a receiver, without prejudice to his taking possession."! In Be^-ney v. Sewell,^ Lord Eldon said ; "1 remember a case, where it was much discussed whether the Court would ajD- point a receiver, when it appeared by the bill that there was a prior mortgagee who was not in possession. I have a note of that case : there, Lord Thurlow made the appointment, without prejudice to the first mortgagee's taking possession, and that was afterwards fol- lowed by Lord Kenyon.^ An agent claimed to retain possession of property for his indem- nification in respect of certain accommodation notes given to his prin- cipal before the bankruptcy of the latter, on which, howe^^er, he had paid nothing, and he disputed any liability to holders in respect thereof: Held, that the assignee in bankruptcy was entitled to a receiver. In such a case the defendant set up a defence founded upon a verbal agreement proved by his own afhdavit only, and inconsistent \vith a written instrument which purported to contain the agree- ment entered into between the parties : such agreement having been drawn by the defendant himself, a practicing attorne}- and 1 Per Lord Eldon, IJ. & W. 648. 2 1 .J. & W. 647. 3 Utid. 649. Ill PMpps V. Bishop of Bath and Wells, as reported in 2 Dick 608, Lord Thurlow re- fused the appointment of a Receiver at the instance of a second mortgagee : the first not being' in pos&ession ; but in Brijan v. Cormick,! Cox, 422, he came to the determination mentioned in the text. A similar order was also made in Daliiier v. Dashwood, 2 Cox, 378. In JVurtcay v. Binw, 19 Ves. 144, 153, Lord Eldon states it to be the practice, on motions for Keceivers, not to look at mortgagees further than to take care that they are not prejudiced: see Price v. WilUo'yis, G Coop. 31 ; Brooks v. Greathed, IJ . & W. 176. RliCElVERS. 1751 solicitor, and executed by all parties .■ Held, that the defence ought not to prevail ou a motion for a receiver. In this case a receiver was granted with liberty to the defendant to propose himself as such without salary.^ This Court has jurisdiction, and will exercise it to prevent a creditor of one partner obtaining an undue preference ■over the creditors of a firm by means of proceedings in this Court- Where, therefore, a purchaser at sherifi^'s sale of the interest of one partner filed his bill for an account and a receiver, and the receiver obtained possession of the stock in ti'ade : leave was granted to a ■creditor of the firm to take proceedings in insolvency, and the receiver was directed to hand over the assets to the assignee in insolvency, when he should be appointed.^ The same principle is applied to other equitable creditors ;^ and, indeed, to all other persons having mere equitable estates. The rule, with respect to equitable creditors, is thus laid down by Lord Eldon, inDavis v. The DiiJce of Marlborough :* " The rule I take to be that the Court will, on motion, apjaoint a receiver for an equitable •creditor, or a person having an equitable estate, without prejudice to persons who have prior estates : in this sense, without prejudice to persons having prior legal estates, that it will not prevent their pro- ceeding to obtain possession, if they think proper f and with regard to persons having prior equitable estates, the Court takes care, in appointing a receiver, not to disturb equities ; and, for that purpose, •directs inquiries, to determine prio}ities among equitable incum- brancers : permitting legal creditors to act against the estates at Law, and settling the priorities of equitable creditors. Provided it is satisfied, in that stage of the cause, that the relief prayed by the bill will be given when a deci'ee is pronounced, the Court will not expose parties claiming that i-elief to the danger of losing the rents, by not appointing a receiver of an estate on which it is admitted that they cannot enter."'' And here it may be remarked, that .although, where there is a prior mortgagee in existence having the 1 Kmiip V. Jones, l2 Grant, 200. 2 Felaii v. McOill, 3 Cham. Rep. CS. 3 See Citrling v. Marquis Totirnscnd, 19 Ves. P28. ' 4 2 Swanst. 187. 5 See Dalmcr v. Daahwood, 2 Cox, 378 382 ; but th'^y must first obtain leave of the Court : Bnjaii ^. Cormiclc, ulii sup. ; Anon. 6 Ves. 287 ; Anr/el v. Smith, 9 Ves. 335 ; Brrjoks v. (rn'fithcd, 1 T. & W. 176; Grade If v. .idderUy, 1 Swanst, 579; Rhodes y. Lord Mostyn, 17 Jur. 1007, \. C. W. ; and see post. ^ The g;i*anting, however, of a Receiver is a matter of discretion, to be ;:;:oveniedby the -M'hole circum- stances of tlie case : one most material of such circumstances beini,^ the probability of the plain- tiff being ultimately entitled t© a decree: Oit-eit v. flom,an,'d H'N. .^ G. S78. 412 : 1.^ Jur 339, 346 ; Affu. 4 H. L. Ca. 997 : 18 Jur. 801 ; and see Cno^jev. Cressti'dl. 12 W. R. .09, V. C. K. 17-52 IN WHAT CASES APPOINTEi). legal estate, the Court will not, hy the appointment of a receiver, de- prive him of his right to possession, it will not permit him to object to the appointment of a receiver by anj- act short of a personal as- sertion of his legal right, and taking possess) (jn himself^ And if after a receiver has been appointed, he does not think proper to avail himself of his legal right (which he may do hy applying to be examin- pro iiitcresse suo), he will not be permitted to have the benefit nf the receiver ;- the appointment of a receiver being for the benefit of incumbrancers, so far, only, as expressed to be for their benefit, and as they choose to avail themselves of it.^ The Court will grant a receiver at the instance of a second incum- brancer, in all cases in which the first incumbrancer is not in pos- session of the property ; and the circumstance of the party creating the incumbrance being abroad, and refusing to appear to the suit,, will not deprive the second incumbrancer of his right to a receiver. In Ilulmes v. Bell;' however, Lord Langdale, M.E,., appears to have entertained some doubt as to his power to appoint a receiver, where one of two mortgagors, wdio were tenants in common, was abroad i at least so far as regarded the moiety of the absent party ■ although he thought the objection removed, by the circumstance of the mort- gagor, who was in England, being in the possession of the whole rents. His Lordship's difficulty appears to have arisen from Brovnc V. Blount,'' in which Sir John Leach, M.R., refused to appoint a re- ceiver, in the absence of the owner of the estate. The decision in that case, however, was not come to upon an interlocutory applica- tion, but upon the hearing of the cause : on which occasion, it hav- ing been held that the Court could not ]irocceed to make a decree in the absence of the party beneficially interested, it was urged that, although it could not grant the relief prayed, it would go the length of appointing a receiver. It appears now to be settled that a receiver may be granted against a defendant who is out of the juris- diction of the Court ;" and where the defendent has absconded to avoid service.** 1 Sih-e,- V. n/s/inp „f Xorwicli, 3 Swanst. 112. n. (b) ; lilind.'x v Lord }h:xhin, 17 Jur. 1007, V.C. W. 2 See .-liion 6 \'es 2S7 ; Augrl v. Smith, 9 Ye-. 33.";, M38 ; nnol.; v. Gnnthnl, 1 J. & W. ITS; Hunt V. Priest, -IVkV. 640 3 Gresh'^i v. Addeiitnj, 1 Swanst 579. 4 Tanfiild v. Irrine, 2 Russ. 149 ; but see C'limrd v. Cliadjirk, il>. 150, n. 5 2 Bear 298. 6 i R. &M. S3. 7 GibhiiiKV. A[ainifari)ii),9Sim.7~;.Smitli\. S.iiitli 10 Hare, App 71; and see Stratton .. David- son, 1 R. & M- 4s4. ' S Pri teller \\ IL-Uicir. i Hick. .ISO ■,Ma<}ii:rr v. Allen,l B. \ B. 75 ; Bowling v. Hudson, 14Beav. 423. RECEIVERS. 1758 The Court will not, unless under very particular circumstances, appoint a receiver, where the party having the legal estate is in actual possession of the property .^ Thus, although a second mort- gagee may have a receiver, where the first is not in possession, yet, if the first mortgagee is in actual possession of the estate, a receive)- will not be appointed : unless it is shown that the first mortgagee has been paid off : in which case, a receiver majr he appointed, ( m the application of a subsequent incumbrancer. - In order to defeat an equitable mortgagee of his right to a receiv- er, the possession of the party must be such a possession as invests him with a title to receive the rents and profits : a mere possession as tenant will not be sufficient ; and where one of the defendants was in the occupation of part of the estate as tenant, and had pur- chased of the plaintiff a part of his mortgage, the interest of which was about equal to the rent of his occupation, the Court of Exche- quer held, that he could not unite his two characters of mortgagee and tenant ; and that his possession, being as tenant, could not be set up against the other mortgagee.^ And here it may be remarked, that as between mortgagees in pos- session and persons having subsequent interests, the Court will not appoint a receiver against a mortgagee's own oath that something is due to him,* unless the party making the application will ofi'ei- to pay him ofli", according to his demand, as he states it himself: in which case, if the 'p&rty will bring the mortgagee's own confession that he has been paid off, or that he has refused to accept what is due to him, the receiver will be appointed;'' but, for this purpose the Court will require the mortgagee to state upon his oath what he believes to be due ; and, in taking the possession from him upon payment of what he swears to be due, it will make him give secu- 1 ttseenis that this rule will not apply, where the party in possession is .ni^rely so upon eNecution, under a judorment ; and that, in such cases, a creditor having talien out exeotition, cannot hold propei'ty a2;ainst an estate created prior to his debt. Upon this priu'jiyjle. Lord Eldon made an order tor the appointment of a Receiver of ihe rents and ])roiits of a rectory, at the instance of i'a second incumbrancer : although a third incumbrancer wfn in po^st-^sion, luider a sequestration from the Bishop, which his Lordship considered, in contemplation of this Court, as equal to a judfi^ment: White v. Binho/} of Petf^rborough, SSwanst lOH, ll(i, 117; but see TJrr^es' v. Bfnt}ters, 2 Sm. h G 509. As between equitable crelitors and jnd<>'ment creditors, havin'.: possession under writs of rlcf/it, it is competent to the Court to appoint a Receiver in favour of the equitable creditors, not disturisint? the rig-hts of any judijtnent creditors in possession: D%''U v. D nice of Marlborough, 1 Swanst. 74, 84. 2 See Quarreliv. Buckford, 1.1 Ves. 377 ; Cndrimitnn v. Parker, Id Ves. 469 ; Benici/ \: Seircll, 1 J. & W. 647. ?• Archdeaeon v. Dutres, 3 Aiist 7.''2. 4 n,nrf v. F'ow/, 2 .1. & \V. .'^.^:"'., .".-r7 .'i Bcrney v. .SevwU, 1 .1. .v W. 047 17-54 IN WHAT OASES APPOINTED. rity to refund, if it shall appear, upon the account, that so much is not is not due ; and where he will not swear that anything is due the Court will appoint a receiver. ^ The disinclination of the Court to appoint a receiver, where the property is in possession of a party having the legal estate, is felt in those cases only in which the estate of the party in posses- sion is prior to that of the parties to the litigation. Where the right to the possession is the subject of dispute, and the plaintiff having an equitable interest claims the legal estate from the defendant in possession, the Court will, if it sees clearly that the plaintiff has the right, and that the ultimate decree will be in his favour, appoint a Receiver pending the suit,^ Thus, a Receiver may be appointed at the instance of a purchaser pendente hte, if the Court is satisfied that the contract is one which it can enforce.^ So, also, where the defendant, on an advance of money by the plaintiff, agreed to execute a mortgage of certain lands, but did not perform the agreement, and there was an arrear of interest due on the money advanced, upon which the plaintiff filed a bill for specific performance, a Receiver was appointed.* In like manner, where a tenant in tail in remainder, upon an advance of money to him by the plaintifi", had agreed to pay it after the death and failure of issue of his brother, the tenant in tail in possession, and had secured the money by a mortgage of the estate, and a covenant to levy a fine and suffer a recovery to give effect to the mortgage, but, on coming into possession of the estate, refused to perform his covenant, the Co'urt appointed a receiver of the rents.* . Upon the same principle, where a bill was filed by creditors, claiming satisfaction out of real and personal assets, and it appeared, by the answer of the person in possession of the real estate, that the real estate must eventually be responsible, as there was no personal estate to be applied to discharge debts, the Court appointed a receiver in the first instance.^ 1 Chaifiberu v. Goldwin, cited 13 Ves. 377 ; Quarrell v. Bcckford, ib. 2 See WItitworth v. Gaugain, 1 Phil. 728 ; 3 Hare, 416. 3 Metcalfe v. P'aUerto/t 1 V. & B. ISO ; and see Dawxmi v. Yates, 1 Beav. 301 : 2 Jur. 960. 4 Sliakel v. Duke of Marlborough, i Madd. 463. 5 Free v. Einde, 2 Sim, 7. ti Jones V. Pugh, 8 Au^. 71 : Earl ofFlngal v. Blake, 1 Mull. 50 ; Chalk v. Raine, 7 Hare, 393 ; 13 Jur. 981 ; and see Caope v. C resnoell, 12 W. R. 299, V. U. K. RECEIVERS. 1755 The Court, sometimes, will appoint a receiver against a party having possession under a legal title. Thus, where fraud can be clearly proved, and immediate danger is likely to result if the intermediate possession should not be taken under the care of the Court, a receiver will be appointed.^ This rule was recognised by Lord Eldon in Lloyd v. PassingJiam ■?■ where his Lordship observed : " The Court interposes, by appointing a receiver, against the legal title, with reluctance : compelled by judicial necessity, the effect of fraud clearly proved, and the imminent danger if the intermediate possession should not be taken under the care of the Court." In order, however, to induce the Court thus to interfere, it is, according to his Lordship's subsequent remarks, not only necessary that the Court should be satisfied of the exist- ence of fraud, but it must be morally sure that, upon the hearing of the cause, the party would, upon the circumstances, be turned out of possession ; and not only that, but it must see some danger to the intermediate rents and profits.^ His Lordship, in that case, did not conceive that the circumstances disclosed formed that extreme case in which the possession was to be taken from those who had the legal right; but, in a later case of Stilwell v Wilkins,^ where a bill was filed for the purpose of setting aside a purchase, and the answer of the defendants, who were the devi- sees of the purchaser, admitted the great inadequacy of the price biit stated their ignorance of the other circumstances of fraud alleged, his Lordship granted the receiver; because, if the case stated was true, the inadequacy was so monstrous, and the situa- tion of the young man and the state of his intellect were such that it was hardly possible to suppose that the transaction could stand. He thought, therefore, that it was a case in which such an order might be made : though it was not the general habit of the Court. Upon the same princijjle, the Court interfered in Podmove v. Gunning.^ In that case, a testator, by his will, bequeathed the residue of his real and personal estate to his wife, " having 1 Lluyd V. Passinghaiii, 16 Yes. 69; Hugonin v. Eufdcti, 13 Ves. 10.5. 2 16 Ves. 70. 3 Lloyd V, Pasnnghmn, 16 \'es. 59, 70 , and see Hugonin ;;. Easeley, uhl vup. i Jac. 280, 383 ; S. C. nom. Slitwell v. WttUavis, G JIadd. 49. 5 5 Sim. 485 ; seealso Laiidon v. Morris^ 5 Sim. 247. 1756 IN WHAT CASES ^APPOINTED. perfect confidence that she will act up to those views which I have communicated to her, in the ultimate disposal of my property after her decease ;" and, upon the wife's dying without a will, the Court appointed a receiver, upon an allegation in the bill (sup- ported by affidavit), of a promise by the wife to her husband, ou the faith of which he had made his will, that she would bequeath the residue of his property, after her decease, to the plaintiffs, who were his natural children. In the above cases, there were circumstances of either actual or constructive fraud, as well as of actual title, to induce the Court to interfere. Where these circumstances are absent, and there is no case of spoliation, the Court will not appoint a receiver upon mere ground of title in the plaintiff.^ Although the Court will not interfere upon the mere ground of title, it will appoint a receiver at the instance of parties bene- fi.cially interested, even where tliere is no fraud or spoHation, pro- vided it can be satisfactorily established that there io danger to the estate or fund, unless such a step is taken.^ Thus, in the case of executors, if the executor has wasted the effects, ^ or in other respects misconducted himself, the Court will interfere, by the appointment of a receiver.-' Upon this ground, also, where an executor has not done what he can to get in the personal estate,* or is out of the jurisdiction,'' the Court will order a receiver to be appointed. Although a receiver will be appointed as against an executor, where it is shown that there is a probability of danger to the pro- perty, it must be such danger as arises from the misconduct or neglect of the partj' : mere poveitj^ will nut, of itself, constitute a sufficient ground for such an appointment.'' Yrhere, however an executrix, who had been a|.]iointed guardian, bj' her husband 1 Clarlc V. Dot, 1 R. & M 103 ; Toldermj v. Colt, 1 Y. & C, Ex 621 ; Middhton v. Sher'miriie, i ill. 35S ; Liincashii-e \ . Lancashire, 9 Beav. 120 : 9 .lui-. 956 ; Earl Talimt v. Hope Scott (No. 1), 4 K. & .7. 90: 4 Jur. N. S. 1172. 2 Jlarklenv, Lord Reay. 2 Unre, iOS : Bainbriiyge v. Baddeley, 13 Bcav. 356; 8 II'N. & G. 413. A RecciA'ci" raa3^ be appointed, hi such a case, altbou^T;!! there is no personal representative ; Steer v. ,«(.'(■)•, r.i W. R. 22.1, V. C. K. : (IrrriiKitr.n v. Ward, 34 Beav. 17.'^. Z Aiinn. VlVes. i; Middlf'lim v. Dod:.veli, 1?, Xes. 266; Havers v. Har,-rs, Barnard W:Lordv. J-'nrclms, 17 Beav. 171, 173 ; Hrrrnj v. Fitzpotrkk, Kay, 421. 4 Rieliards v. Perlcim, 3 Y. .■; C. Ex. 299, 307 ; S .lur. lug. 6 Smith v. Smith, 10 Hare, App. 71 e Hatlioriithii'aitev. Rir^^eU, 1 Atk. 126; Anon, 12 Vcs. 4; Homird v. Payrra. 1 Jladil. 42 Uanncri' \. Fur:,', 11 Bcin . .50, 31. E^CEIVERS. 1757 of her three children, married a second husband in necessitous circumstances, the House of Lords directed a receiver to be appointed to get in the outstanding jjersonal estate.'- And where the husband of an executrix, was in the West Indies, and was sworn to be in indifferent circumstances, a receiver was appointed.^ It appears, however, from the report of that case, as if a principal ground for granting the receiver had been the fact of the husband being in the West Indies, and not amenable to the process of the Court ; but, in another case of a, similar nature, the order was made upon the proof of the husband's insol- vency : though the affidavit positively denied the fact of his being abroad.^ It seems, also, that a receiver will be appointed if the husband of the executrix is of unsound mind.* And, in general, where a personal representative is insolvent, a receiver will be appointed ; and if it should be necessary to bring actions at law to recover part of the effects, since that must be in the name of the executor, the Court will compel him to allow his name to be used.^ It seems, however, that if a person, known by a testator to be a bankrupt or to be insolvent, is appointed an executor bj' bis will, such person will not, in general, be con- trolled by the appointment of a receiver ;'' but it is not to be inferred from the circumstances of the will having been made some time 'before the bankruptcy, and nol^ altered afterwards, that the testator had a deliberate intention to intrust the management of his estate to an insolvent executor.'^ The circumstance, that the party who had the administration of the testator's effects was an uncertificated bankrupt, and was not appointed to the office by the testator, has been held not to be a sufficient ground for the^ appointment of a receiver, where several of the parties interested had refused to join in the application.^ The same grounds which will induce the Court to take away from an executor the possession, or the right to the possession, of the testator's property, by the appointment of a receiver, in case 1 Dillon V. Lailii Mount Cashell, i Bro. P. C. ed. Toml 30C, 312. 2 Taylor Y Alh'H, 2 Atk. 213. 3 Scott v Bscher, i Pri r.4ii. i I'L-tts V Pal.i:ci; 9 Jur. N. S. 054, M. R. a Utternan v. Maii; 2 Ves. .J. 95, 98 : i Bro. C. C. 269, 277 ; Seatt v. Ik-cher, nlii -ivp. (J Stainton v. Carroll Company, 18 Beav. 146, 161 : IS Jur. 137. 7 Gladdon v. Stoneman, 1 Madd. 143, n. ; Langleij v. Hawk, 5 Madd. 46 ; WiUiouis on Exor.s. 206. S Smith V. Smith, 2 Y. & C. Kx. 3');-!. 1758 IN WHAT CASES APPOINTED. of his misconduct or of his bankruptcy or insolvency, -will induce the Court to interfere, in the case of any party clothed with the character of a trustee : whether he is a mere trustee, or a trustee having an interest in the estate or fund. Thus, where a trustee refuses to act, the Court will, on the application of the person beneficially interested, appoint a receiver ;i and where several trustees under a settlement in consequence of disputes amongst themselves, permitted the rents of the trust estate to faU in arrear, the Court not only appointed a receiver to collect the rents, but ordered the costs of the suit to be paid by the trus- tees.^ So, also, a receiver was appointed, where, in conse- quence of disagreement among the trustees, two out of three trus- tees acted without the third, and took the trust property in their names only f where the trustees accepted new trusts, which conflicted with the former trusts on which they held the pro- perty ;^ and where, by the laches of the trustee, infant cestuis que trust were deprived of maintenance.^ Under very special circumstances, the appointment of a receiver has been ordered, in the absence of the trustee.^ Where, also, the trust property has been a2iplied, without complaint, for a series of years, according to an uniform course of management, which has been sanctioned by the parties beneficially interested the Court will not appoint a receiver, by interlocutory order, on the ground that such applica;tion of property is a breach of trust : unless it is perfectly clear that the party in whom the property is vested is a mere naked trustee, and has not, even to a limited extent, any of the rights and interests of an owner. Upon this ground, a motion for the appointment of a receiver of the estates vested in the Irish Society, at the instance of one of the London Oompanies, who claimed a beneficial interest in the income of the estates, was refused.'' In cases of misconduct by trustees, the Court will appoint a receiver : as well where the trust arises by implication, as where 1 Palmer v. Wi-lght, 10 Beav. 234 ; and see Brndie v. Bai-nj, SJIer. 695. 2 Wilson V. ll'iVso/i, 2 Keen, 249. 3 Swalev. Siimle, 22 Beav. 684; see also Tait v Jenkins, 1 Y. & C. C. C. 492 ; Biawelly. Reed, 1 Hare 434 : (i Jur. 630. » 4 Earl Talbot v. Ho2)e Scott (No. 2), 4 K. & J. 139 : 4 Jur. N. S. 1172, 1180. r< Richards v. Perkins, 3 Y. & C. Ex. 299, 307 ; 3 Jur. 168. (i Hvghesv. Wlieekr. 11 Beav. 178, 179. 7 Skimwrs' Coinpamj v. Irish Society, 1 M. & C. 162; and see Gray v. Chaplin, 2 Rugs. 126. RECEIVERS. 1759 it is expressed. Upon this pi'inciple, the Court has held, that where a man takes a conveyance of a legal estate subject to equit- able interests, he must satisfy those interests or submit to a receiver : therefoi'e, where a man purchased lands subject to two equitable annuities, which he 'refused to pay, Lord Eldon expressed his determination to appoint a receiver, unless the defendant would enter into an undertaking to pay the annuities.^ Upon the same principle, if a tenant for life of leaseholds is bound to renew, he is, in such cases, clothed with the character of trustee : and if, by his threats or acts, he manifests an intention to suffer the lease to expire, the Court will appoint a receiver, in order to provide a fund for renewal.^ A similar order for the appointment of a receiver of the rents and profits of an estate, for the purpose of accumulating a fund, was made where the tenant for life had fradulently obtained a sum of stock, to which the trustees of her settlement were entitled.^ As the object of appointing a receiver is, usually, the preserva- tion and protection of the property in dispute pending litigation, the Court will not appoint a receiver on the application of a party who possesses the power of protecting the property without it : consequently, a receiver will not be appointed on behalf of a mortgagee who has the legal estate, as he has nothing to do but to take possession.* So, also, where one of the plaintiffs was a trustee of the estate, with a power of entry and distress. Lord Eldon discharged an order appointing a receiver.^ Wherever there is a dispute respecting an estate, which depends upon a mere legal title, the Court will not, in general, grant a receiver : because the plaintiff has his remedy by asserting his title in a Court of Law.^ Thus, where an heir at law disputes a will against the devisees in possession, the Court will refuse a receiver : because he may, if he is entitled as heir, bring his ejectment against the devisees.^ This rule, however, is departed 1 Pritclmrd v. Fleetviood, 1 Mer. 64. 2 See Bennett v. Colley, 2M. & K. 225, 233. 3 Woodyatt v. Gresley, 8 Sim. 180. 4 Berney v. ^eimlt, 1 J. & W. 647 ; Stureh v. Young, 5 Beav. 557. 5 Buxt(m V. MonlcJiouse, G. Coop. 41. 6 See Mordaunt v. lloojier, Amb. 311. 7 Kn/ight v. Dnplessis. 1 Ves. S. 326 ; Earl of Fingal v. Blake, 1 Moll. 158 ; 2 Moll. 50 ; see aljio Lloyd V. Trimleston, ib. 81 ; Bonser v. Bradxhaw, i Jur. N. S. 1011 : 5 Jur. N. S. SU, V. C. K : see also Wright v. Wilkin, 7 \V. R. 337, V. C. K. ; Tetts v. Palmer, 9 Jur. X. S. 954, M. E 1760 IN WHAT CASES APPOINTED. from where there are peculiar circumstances in the case : as where the Court sees that it is cleai', from the evidence produced, that it is important that the Court should interfere, for the protection of the estate or of the rents and profits. But a strong case of danger to the property, and a strong ground of title in the plaintiff, must be made out.^ A receiver will also be appointed, at the instance of a person who has the legal estate, where the property is in the nature of a trade f or where, from conflicting legal rights, it is impossible to obtain tenants for the property.* The Court will likewise extend the application of the principle, of providing for the safety of property pending litigation, to cases where the litigation is in another Court. Thus, during litigation in the Court of Probate, a Court of Equity will enter- tain a bill for the mere preservation of the property of the deceased ; and, if necessary, to take it out of the possession of the person claiming to be the executor, till the litigation is deter- minei], and appoint a j-eeeiver ; although the Court of Probate by granting an administration 'pendente lite, might provide for the collection of the effects ;* and a leceiver may be appointed, as well where the Utigation in the Court of Probate is to recall admi- nistration of probate already granted, as in a case where no administration has been granted before the application to the Court of Chancery f but the meie circumstance that there has been a suit instituted in the Coui-t of Probate to recall a probate already granted, does not give the Court of Chancery jurisdiction to interfere : for if that were so, it is evident that, in order to (obtain a receiver, it would be only necessary to institute a suit in the Court of Probate.* The Court of Chancery, therefore, will 1 Mardaunt v. Iloupi r, Amb. 311 ; Clark v. Dili; 1 R. cS M. 103, 100 ; Toldervy Y. Cult, 1 Y. li C. Ex. mi; Midilhtuii V. SJicrburiie, i ib, 358: Lancashire v. Lancashire, 9 Beav. 120: 9 -Jur. 956: Jlainlirigge y. Baddeley, 13 Beiiv. :!.'5 ; :l M'N. 4: G. 413; Earl Talbot v. llupe Scott (No. 2), 4 K. is J. 9e : 4 Jur. N. S. 1172 ; Wrir/lit v. iVilkhi, 7 W. K SSI, V. (J. K. ; see also Yettsv. Palmer, 9 Jur. N. S. 954, il. R. : and Acland v. Gravener. 1 N. E. 119, M. E. 2 Fripp V. Chard Railway Compttmi, 11 Hare, 241 : 17 Jur. 887; and see Stoni v Lard Wiitdsof, i Atk. U30. 3 White V. Sinale, 22 Beav 72. 4 Ld. Bed. 135, 136 ; Kiitr/Y. King, 6\a'i. 172; Richards v. Chave, 12 Ves. 402 ; Edmunds v. Bird, ; V. & B. 642 ; Atkinson v. Henshaii; 2 V. & B. 85; Ball r. Oliver, ib. 90 ; Watkms v. Brent, 1 .M it C. 97, 102 ; Wood v. Hitehxngs, 2 Beav. 2.9 : 4 Jur. 868 ; JoiKS v. Goodrich, 10 Sim. 327 1 Bengali v. Kendall, 1 Hare, 152 ; A nderson v. Guichard, 9 Hare, 275 ; Whltworth v. Whyddoa, 2 M'lSf. & G. 52 : 14 Jur. 142 ; Williams v. Attorney-General, Setcn, 1003. 5 Jiittherford v Dovglas, 1 S. & S. Ill, n. ; Ball v. Oliver, and Beiidall v. Kendall, ubi sap. WatkifiM V. Brent, ubi sup. ; and see Marr v. Littlewood, 2 M. & C. 454 ; Devi v. Clarke, 1 S. & S. 114 ; Connor v. Connm; 15 Sim. 698 : 11 Jur. 002, n. ; Neirtoit v. Kicketta, 10 Beav. 525 : 11 Jur. 662. RECEIVERS. 1761 look into the case, to see whether, on the whole, such a case is made as justifies its interference ; and it seems, that if it appears, from all the circumstances, that there is substantially a lis pendens in the Court of Probate, a receiver may be appointed : notwith- standing there is no ground laid for the interference of the Court in respect of any improper conduct of the parties.'^ The Court may also grant a receiver, pending an appeal from a decision of the Court of Probate.^ A Receiver may also be granted, pending litigation in a foreign Court.^ The Court will refuse to interfere against a joint-tenant or ten- ant in common in possession, at the suit of another joint-tenant or tenant in common : unless the defendant, being in possession receives the whole rent, and excludes his companion from the share due to him.* It seems, however, that, in the absence of exclusion, a receiver of the applicant's share of the rents and profits may be ap- pointed.^ A similar rule is acted upon where the applicant is an equitable joint-tenant or tenant in common; and in that case, in the absence of exclusion, a receiver of only the applicant's share will be granted.'' Where the property is in the nature of a trade, a receiver of the whole may be ordered : although the person applying has a legal interest in it. Thus, a receiver will be appointed of the tolls of a canal company, at the instance of a mortgagee;'' and of a mine, at the instance of one of several persons who are working it together.* In case of partnership, the Court frequently appoints a receiver of the partnership estate ; but it seems that the Court will not, in general, appoint a receiver of partnershi p effects, unless the plaintiff 1 WiUimiis on Exors. 4:3(3 ; Watkiiis v. Bi-cnt, 1 M. & C. 97, 102 ; and see Jonctf v. Brent 3 Sliid. 1 ; Affd. on appeal, Jac. 466. i r^iddell V. Liddell, cited 12 Ves. 4(34 : Blake v. Blake. 2 Beav. 293, ii. (e) ; Day v. Cro/t, 2 Beav. a. n. (d) ; Wood v Ilitchings, ib. 289: Afld. *. 298, n. (a). 3 Transatlantic Courpany v. Pietrom, Johns. C04. i Street v. Anderton, 4 Bro. C, C. 313 ; see Milbank v. Bevett, 2 Mer. 405 ; Holmes v. Bell, 2 Beav. 298 ; Hargrave \.' Bargrave, 9 Beav. 549; Scxirrah v. Scurrah, 14 Jur. 874, M. R. ; Sand/ord v. BaUard, 33 Beav. 401 : 10 Jur. N. S. 261, M. R. ; see S. C. 30 Beav. 109 : 7 Jur. N. S. 661 ; Srtiu). 1003 ; and see contra, WUlmighhy v. Willuughhy, cited 2 Dick. 478 ; Tyson v, Fairclough, 2 w 0; S. 142, 144. 5 Calmrt V. Adams, 2 Dick. 478 ; Fall v. JSlkins, 9 W. R. 861, M. R. (3 Sand/ord v. BaUard, ubi sup. ; and see Street v. Anderton, ubi sup. 7 Fri/>i> V. Chard RaUuiau Comimng, il Hare, 241 ; 17 Jur. 887 ; and for the order, see Seton, 10;l4. 8 Jcfr-!n V Smith, 1 J. & W. 298 ; Storif v Lord Windsor, 2 Atk. 630 ; Lees v. Jones, 3 Jur. N. S. 9.'i4, V. C. w. ; and see Norway v. Ro^oe, 19 Ves. 144 : Roberts v. Eberhardt, Kay, 148, 1.^13, l.'iO, '.'■ For forms of orders, see SeHtn, 1030, et seq. 1762 IN WHAT WAY APPOINTED. appears to be entitled to a dissolution.^ If the Coui't can see that a dissolution must take place, it follows very much of course that a receiver will be appointed'^ Upon these principles, a receiver will not be ordered, where the fact of the dissolution of the partnership is disputed.^ Where the object of the suit is to continue, and not to dissolve, the partnership, the general is not to appoint a receiver ;* but where a suit has been' instituted to compel partners to act according to the provisions of instruments into which they have entered, the Court will take care that the decree shall not be defeated by any- thing to be done in the meantime ; and will appoint a receiver to protect the property f and receivers have been appointed at the suit of a shareholder of a company, where, through the conduct of its officers, the property of the company is in danger of being lost.** The rules with regard to the appointment of a receiver, in the case of partnerships, have been thus stated.'^ " If any one of the part- ners seeks to exclude another from taking that part in the concern which he is entitled to take, the Court will grant a receiver;^ generally, in thus interposing between the parties, the Court looks to a dissolution and general winding-up of the affairs.' Where a dissolution is intended, or has already taken place, a Court of Equity will appoint a receiver, provided there has been some breach of the duty of a partner, or of the contract of partnership.^" Thus if, in breach of moral obligation, one partner, unjustly takes possession, and refuses tu give security to his co-partner for his share of the 1 Const V. Harris, T. & R. .517 ; Siidth v. Jeyes, 4 Beav. 503 ; Baxter v. West, 2f L. J. Ch. 169, V. C. K. ; Huberts \. Eberhardt, Kaj', 14tt ; and see M'ilson v, Greemrood, 1 Swanst. 481; Chapman v. Beach, 1 J. & W. 694 : Tibbits v. Phillips, 10 Hare, 365. 2 Goodmai', v. Whitcomb, 1 J & W. 58'.» ; see also Oliver v. Hamilton, 2 Anst. 453. As to the ques- tion whether bills can be sustained for partnership acconnts, without seeking- a dissolution of partner.ship, see ante. 3 Fairburn v. Fearson, 2 M'N. & G. 144 ; and .see Peacock v. Peacock, 16 Ves. 49. 4 Hall V. Hall, 3 M'N. & G. 79, SS : 12 Beav. 419 n. ; and cases cited ib. ; Hoberts v. Bberhardt, Kay, 148. 5 Const V Harris, T. & R. 496 ; Marris v. Colinan, IS Ves. 437 ; and see Watcis v. Taylor, 16 ^'es. 10 ; Hall V. Hall, 3 M'N. & G. 711, 91 ; 12 Beav. 414, 419, n. 6 Sheppard v. Oxenford, 1 K. & J. 491 ; £oa>is v. Coventnj, 5 De G- JI. & G. 911, overrulinsf S C. 3 D.ew. 76. 7 Collyer on Partnership, 240 — 342 ; and see Lmdley on Partnership, 849, et seq, 8 Wilsoyi V. Greenwood, 1 Swanst. 481 ; Peacock v. Peacock, 16 Ves. 49 : Milbank v. Revett, 2 Mer iOb;Goodman\. Whitcomb,! i & \\ . uaO ; Blakeney v. Dufaur, 16 Beav. 40; Clegg v. Fish- loick. 1 M'N. & G. 294, 298. 9 Waters v. Taylor, iibi s^tp. : see Harrison v. Annitage, 4 Madd. 143; Oliver v. Hamilton: 2 Anst. 463. 10 Harding v. Glorcr, IS Ves. 281 : Ksticick v, Connmgsby^ 1 Yem. 118 ; Smith v. Jeyes, 4 Beav. 603. In Skip V. Harii'ood, Reg". Lib. 17-18, B. 517, a Receiver was appointed of a brewer.v. RECEIVERS. 1763 stock, moneys, and securities ;^ or if he, in any respect, behaves unrighteously against the interest of the other partner, a receiver ■will be appointed.^ So, also, if in breach of the contract of partner- ship, he carries on the trade with the partnership effects on his sepa- rate account, after the dissolution,^ and thus, or in any other man- ner, excludes his co-partner from that share to which he is entitled in winding up the concern, a receiver will be appointed."* The same rules which prevail respecting the appointment of a receiver in a suit between partners, are applicable in a suit between the representative of a deceased partner and the surviving partner.^ Where all the partners are dead, and a suit is instituted between their representatives, a receiver will be appointed as a matter of course f and so, where one of the partners became bankrupt, a receiver was appointed, at the suit of the solvent partner, against the assignees.'' The Court will also appoint a receiver, pending an investigation into the title to an estate, in a suit for the specific performance of an agreement. The consideration of the question at whose expense the appointment should be made will be reserved.^ A receiver of the rents and profits of an infant's estate may, also, as we have seen, be appointed ; and where no suit is pending, this may be done upon summons at Chambers : though the more usual course, in the latter case, is to appoint a guardian of the person and estate, without a receivei-.' 1 Peacock v. Peacock, 16 Yes. 49 ; and Milbank v. Jievett, 2 Mer. 405. 2 If partners quarrel, and one of them behaves unrighteously agfainst the interest of the other, a Receiver will be appointed ; but if partners quarrel, a Receiver will not merely on that account be appointed." Per Lord Eldon, in Texeire v. Da Costa, in Chancerj', Nov. 1815, Cook's MSS. ; see Hale V. Hale, 4 Beav. 369. 8 Harding v. Glover, 18 Ves. 281. 4 Blakeney v. Dujaur, 15 Beav. 40 ; and see Wilson v. Greenwood, 1 Swanst. 481. The dissolution which takes place on the refusal of an appointee under a will to become a partner, is clearly not a dissolution arising from the exclusion of the appointee by the surviving partners, and will there- fore be no foundation for a Receiver : Kershaw v. Matthews, 2 Russ. 62. 5 De Tastet v. Bordieu, 2 Bro. C. C. ed. Belt. 272, n. ; and see Madgwick v. Wimble, 6 Beav. 495 ; Ciegg v. Fishwick, 1 iVIcN. & G. 294, 298 ; Davis v. Ainer, 3 Drew. 64 ; but see Hartz v. Schrader, 8 Ves. 317 : 2 Hov. Sup 106. 6 Phillips V. Atkinson, 2 Bro. C. C. 272. 7 Freeland v. Stansfield, 2 Sm. & G. 479 : 1 Jur. N. S. 8 ; and see Wilson v. Greenwood, 1 Swanst. 471, 482 ; Fraser v, Kershaw, 2 K. & J 496. 8 Boehm v Wood, 2 J. & VV. 236 ; and see Hall v.. Jenkinsan, 2 V & B. 125 ; Stratton v. Davidson, 1 R. & M. 484 ; Osborne v., Harvey, 1 Y. & 0. C. C. 116 ; Dawson v. Tates, 1 Beav. 301 : 2 Jur. 960. 9 Ante. As to lunatics, see anie. 87 1764 OF WHAT APPOINTED. Of what appointed. A receiver may be appointed of the rents and profits of real estate and also of all personal estate which is capable of being reduced into possession. In Davis v. The Duke of Marlborough^ it was held that, in favor of equitable creditors, the Court will appoint a receiver of all property against which a legal creditor might obtain execution. Upon this ground, a receiver has been appointed of the profits of a rectory,^ under an elegit. The appointment is not, how- ever, confined to such property as is liable to be taken under an execution at law, but has been extended to whatever is considered in Equity as assets ; and, therefore, in Blanchard v. Gawthorne,^ a receiver was appointed, at the instance of a judgment creditor, of the office of master forester of a royal forest. So, also, in Palmer v Vaughayt,^ the profits of the office of Clerk of the Peace for a county having been assigned for the payment of creditors, a receiver was appointed, pending the discussion of a question as to the validity of the assignment ; but in Cooper v. Reilly,^ a receiver was refused, pending such a discussion, of the salary of Assistant Parliamentary Counsel to the Treasury; the Court being of opinion that, upon grounds of public policy, the salary of such an office was not assign- able. A receiver has been appointed of a canonry ;^ and may, it seems, be appointed of a college fellowship.'' A pension granted by the Crown is capable of being taken under a sequestration for want of an answer f and such a pension may, it seems, be the subject of a receiver.^ The rule, however, will not extend to the pension for past services,^" or to the half-pay ^^ of an officer in the Army or Navy ; which is, upon grounds of public 1 2 Swaiist. 132. 2 Silver v. Bishop of Norwich, 3 Swanst. 112, n. (b) ; White v. Bishop of Peterborough, ib. 109. A registered judgment against a clergjTnan does not create a charge upon liis benefice entitling tlie judgment creditor to tlie appointment of a Receiver, under 1 & 2 Vic. c. 110 : Hawkins v. Gathercole, 6 De G. M. 4 G. 1 : 1 Jur. N. S. 481 ; reversing S. C. 1 Sim. N. S. 63 ; and see Bates v, Bothers, 2 Sm. & G. 609. 3 Sim . 566. 4 3 Swanst. 173. 5 2 Sim. 590 ; ASd. 1 R. & M. 560. 6 Orenfell v. Dean of Wiiidsui; 2 Beav. 644. 7 Feistel v. King's College, Cambridye, 10 Beav. 491, 609; but see Berkeley v. King's College Cam byige, ib. 602. 8 Ante. 9 Noad V. Backhouse, 2 Y. & C. C. C. 029 ; and see Turnstall v. Boothby, 10 Sim. 642. 10 Lloyd V. Gheetham, 3 Giff. 171 : 7 Jur N. S. 1272 ; but see Carew >. Cooper, 4 Giff. 619 ; 10 Jur. N. S. 11 ; ib. 429 : 12 W. R. 586, 767, L. C. 11 M'Carthy v. Goold, 1 Ball & B. 387 ; Stone v. Lidderdate, 2 Anst. 533, 639 ; Collyer v Fallon, T. & R. 469, 467. RECEIVERS. 1765 policy, also exempt from the operation of a sequestration. '^ So, also it has been held, that a pension granted by the 5 Anne, ch. 4, for the more honorable support of the dignities of the Duke of Marlborough to the persons, severally and successively, to whom the same should come by virtue of that Act, with a proviso that the acquittance of every such person should be a sufficient discharge, was upon grounds of public policy, inalienaTjle, and therefore not the subject of a receiver ; although the estates which, by the 5 Anne, ch. 3, were limited to the then Duke for life, with a remainder in tail, in such manner that they might always go along and be enjoyed with the titles and dignities, with a proviso, that they should not be aliened to the injury of the persons in remainder, were held to be alienable during the life of the person in possession, and to be, tlierefore, the subject of a receiver during his life.^ A receiver will also be appointed of heirlooms,^ or of the tolls of a turnpike,* canal, ^ railway,^ market,^ or dock f but the Court will not appoint a receiver of parochial rates which are to be assessed and collected at a future period.* It is not necessary, in order to authorise the Court to appoint a Receiver, that the property in respect of which he is to be appointed should be in England,^" or, indeed, in any of Her Majesty's dominions. Thus, in England, persons have been appointed to manage lauded property, receive the rents and profits, and convert, get in, and re- mit the proceeds of property and assets, where such property has been situated in British India,^^ Canada,'-^ China,^^ Ireland,'^* Italy ,^^ New South Wales,^^the West Indies,^^ Demerara,^^ and other places. 1 Ante. •2 Davis V. Duke of Marlbm-ough, 1 Swanst. 74, 84 ; and see S. C. 2 Swanst. 108, 136. 3 Earl Shaftesbury v. Dulce of Marlhoi-ough, Seton, 1025, 4 KnappY. Williams. 4 Ves. 430, n. (a); Dumville v. Asltbrooke, 3 Rusg. 98, ii. ; Lord Crfwc \ Bdlestoa. 1 0e G. & J. 93 : 3 Jur. N. S. 1061 : Seton, 1*34. 5 Fripp V. Chard Railway Company, 11 Hare, 241 ; 17 Jur. 887 : Seton, 1034 ; Potts v. Warwick, rf'C, Canal Company, Kay, 142, 143 : Seton, 1034. (3 Russell V. East Anglian Railway Company, 3 McN". & G. 104, 105; Furness v. Caterham Railway Company, 25 Beav. 614, 619: 4 Jur. N. S. 1213. 7 De Winton v. Mayor of Brecon, 26 Beav. 633 : 6 Ju*. N. S. 882. 8 Ames v. Tricstees of Blrkcahead Docks, 20 Beav. 332 : 1 Jur. N. S. 529. As to Receiver.s of the property of companies, see Seton, 1034. 9 Drewiy v. Harnes, 3 Buss. 94. 10 Iloulditch V. Marquis of Donegal, 8 Bl N. S. 301, 343 ; Barkley v. Lord Reay, 2 Hare, 308 ; Faulkner v. Daniel, 3 Hare, 204, ii. ; Seton, 1038. 11 Logan v. Princess ofCoorg. Seton, 1038, No. 1 ; Keys v. Keys, ib. : 1 Beav. 425. 12 Tylee v. Tylee, Seton, 1039. 13 liodson V. Watson, Seton, 1038. 14 Houlditch v. Marquis of Donegal, 8 Bl. N. S. 301, 343; Seton, 1007; but see iie Trant, and /;./ Warner, cited *. 1008. 16 Hinton V. Galli, 24 L. J. 121 : 2 Eq. 479, M. E. ; Seton, 1039, No. 3. 16 Underwood v. Frost, Seton, 1038, No. 2. 17 Seton, 1036, 1037. 18 Porter V. Porter. Seton, 1036, No. 2 ; Bunbury v. Bunbury, 1 Beav. 318 ; Seton, 877, 1036. 1766 WHO MAY BE APPOINTED. In these cases, a person resident in England is sometimes appointed Receiver or manager, with authority to appoint an agent abroad ;i and sometimes a person abroad is appointed Receiver or manager, with directions to consign or remit to some person resident in Eng- land.^ Ordinarily, the person appointed to act abroad as Receiver or manager must give the like security of persons resident in this country.' Who onay be appointed. Generally speaking, a Receiver should be a person wholly dis- interested in the subject-matter of the suit ; but, in some cases, a person mixed up with the suit" may be appointed.* In a suit to dissolve a partnership, one of the partners, who was willing to act without salary, has been appointed Receiver;^ and a retired part- ner, who had advanced all the capital, and was liable to the partnership debts, has been appointed Receiver : he being willing to act without salary.* But in no case will a party to the cause be appointed : unless he is appointed by the Court at the hearing ; or a direction, giving him leave to propose himself, has been given by the Court. This leave, if granted, is usually embodied in the order ' directing the appointment of a Receiver ; but if it has not been refused, a subsequent order to that effect can be obtained, on summons at Chambers.^ A trustee, who is a party to the cause, will not, however, be ap- pointed a Receiver with emolument, if any one else can be procured who will act with the same benefit to the estate ;^ and even where he is disposed to act without emolument, the Court will not appoint a trustee to be a Receiver, if he is the person who ought to watch and cheek the Receiver, for the benefit of the parties interested -^^ but where a testator appointed as trustee a person who for many years had been the paid Receiver and manager of his estate, the 1 See V. Lindsey, 15 Ves. 91 : Cockbum v. Raphael, 2 S. & S. 453 ; Seion, 1036, 103. 2 See Setm, 1036-1039. 3 Ibid.; Cockbum v. Jtaphael, 2 S. & S. 453 ; Seton, 1038. As to the security of Receivers, see post. 4 Fingal v. BlaJce, 2 Moll. 50. 5 Wilson V. Greenwood, 1 Swanst. 471, 483 ; Blakeney v. Dufaur, 15 Beav. 40, 44. 6 Boffman v. Duncan, 18 Jur. 69, V. C. W. 7 See forms, Setmi, 1008, Nos. 4, 59. 8 Seton, 1006 ; and see Banks v. Banks, 14 Jur, 659, M. R. 9 Fingal v. Blake, 2 Moll. 50 ; Sykes v. Hastings, 11 Ves. 363, 364 ; but see v. Jolland, 8 Ves. 72 ; see also Powys v. Blagrave, 18 Jur. 462, V. G. W., where a tenant for life was appointed receiver on his undertaking to act without salary. 10 Anon., 3 Ves. 615 ; Sykes v. Hastings, 11 Ves. 363,364; Sutton v. Jones, 16 Ves. 684. RECEIVERS. 1767 tenant for life being an infant, the Court continued the trustee as Receiver at a salary.^ The rule, that the Court will not sanction the appointment, as Receiver, of a person whose duty it is to check and control the individual appointed, is extended to other persons besides trustees. Thus, it has been held, that, as it is the duty of the next friend of an infant to watch the accounts and conduct of a Receiver of the infant's estate, the two characters are incompatible with each other f and, in Taylor v. Oldham^ Lord Eldon held that the son of a next friend ought not to be the Receiver. Upon similar grounds it has been held, that a solicitor in the cause cannot be appointed receiver : because it is his daty to control the receiver's accounts.* It is no objection, however, to a person proposed, that he is a practising barrister ; ^ and although, in Wyn'ne v. Lord Newborough,^ Lord Eldon appears to have considered that the circumstances of the gentleman who was appointed being a barrister, practising at a distance from the estate, was one which deserved considemtion, yet many instances have since occurred in which barristers practising in London have been appointed receivers of estates at a distance. The appointment of a Member of Parliament,'' or a Peer,^ as receiver, is, it seems, objectionable, if any person possessed of equal fortune can be found who is willing to act. It has also been held, that the Receiver-General for a county should not be appointed a receiver : for, having given security to the Crown, if he were to become indebted to the Crown and to the estate, the Crown might, by its prerogative process, sweep away all his property.^ In Kemip V. Jones ^° a receiver was granted with liberty to the defendant to propose himself as such, without salary. 1 Bury V. Newport, 23 Beav. 30. 2 Stone V. Wishart, 2 Madd. 64. 3 Jac. 527, 629. 4 Garland v. Garland, 2 Veg. J. 137. In Batjot v. Bagot, 2 Jur. 1063, Sir Lancelot Shadwell, V.C.,on the application of a married woman for a receiver of her separate estate, appointed her solicitor to that office, on her nomination in Court : although a strong affidavit was made by the husband showing the unfitness of the solicitor for the office. The party appointed undertoolc to act ag receiver without salary. 5 Garland v. Garland, 2 Ves. J. 137. 6 15 Ves. 283. 7 Wynne v. Lord Neivborough. 15 Ves. 283. 8 Attorney-General v. Gee, 2 V. «: B. 203. 9 Attorney-General v. Day, 2 Madd. 246, 253. See now, however, as to Crown deWs, Prov. Stat. 29 i 30 Vic. ch. 43. 10 12 Grant, 265. 1768 MODE AND EFFECT OF APPOINTMENT. Mode and Effect of Appointment. Except in the ease? of infants/ the Court has no jurisdiction to appoint a receiver, unless a suit is pending ; and if the application for the receiver is made before decree, it will not be granted unless a bill has been filed containing a specific prayer that a receiver may be appointed.^ At the hearing,' however, or after the decree,'* a receiver may be appointed, although not prayed by the biU, if the circumstances of the ease require it : and the application may be granted after decree, although it has been previously refused, if a state of facts entitling the party to a receiver appears upon the proceedings in the eause.^ A receiver may be appointed after an administration decree, in a suit commenced by summons.^ Where the original bill had been answered, it was held that the pendency of a plea to the amended bill did not prevent a motion for a receiver." After decree, the application for a receiver may be made by one defendant against a co-defendant * but before decree, the applica- tion must, except under very special circumstances, be made by the plaintiff:^ and where made at the hearing of a redemption suit, the application was refused.io Originally, a receiver could only be appointed after answer but this rule was broken through by Lord Bathurst, in the case of Crompton v. Bearcroft ;" and since that case, the appointment 1 Ante; and see M to lunatics, ante. ,. , , „ , o ,« n cnn 2 Pare v. Cleqg, 7 Jur. N. S. 1136 : 9 W. K. 216, M. R. ; but see Malcolm v. Montgomery, 2 Moll 600. 3 Osborne v. Harvey, 1 Y. & C. C. C. 116. , „.,,,> oo 4 Bow , anw. Bell, 14 Sim. 392 ; Wright v. Yemon, 3 Drew. 112 ; Thomas v. Darms, 11 Bear. ia. b Attorney-General y. Maijor of Gahcay,! Moll. 9i-10i. ^ tL Ait:- 6 Re Bijwaters, Sargent v. Johnson, 1 Jur. N. S. 227, V. C. W. ; Brooker v. Brooker, 3 Sm. & G. 475, 3 Jur. N. S. 381 ; and see ante. 7 Thompson v. Selhy, 12 Sim. 100. 3 Hiles v. 3Ioore, Id Beav. lio. 9 Robinson v. Sadley, 11 BeaY. 614. 10 Barlow v. Oains, 8 Beav. 329. 11 2 Bro. O. C. 158, n. RECEIVERS. 1769 has been made known before answer, whenever the justice of the case required it ;i and, in a case of urgency, even before appearance.^ The application for a receiver is usually made by motion;^ and except in a suit commenced by notice of motion, or by consent, it cannot be made at Chambers in the first instance : although any vacancy which may occur in the office, by deatfi, or otherwise, may be filed up by an order made there.* ^ Notice of the motion must be served on the opposite party: the general rule of the Court being, that an application for a Receiver cannot, like a motion for an injunction, be made without notice.^ If, therefore, a receiver is to be applied for I before the expiration of the time for answering, notice of the motion must be Served upon the defendant personally : to authorize which, there must be a previous application to the Court for leave to make such service;^ jmd the fact of such leave having been obtained must be mentioned in the notice of motion.'^ The rule, however, which requires previous notice to be served upon a defendant who has not answered is subject to exception where the defendant has absconded to avoid service, and, therefore, cannot be served.^ The application must be supported by evidence of the facts relied upon, as rendering the appointment proper ; and must, if the appli- cation is made before decree, be founded on the allegations of the bill.9 Formerly, if the application was made after answer, the plaintifi" could only rely on the admissions contained therein ; and could not enter into evidence in opposition thereto -^^ but now, upon any ap- plication for a receiver, or to discharge an order appointing a 1 Pitcher v, Helliar, 2 Dick. 580 ; Vann v. Bamett, 2 Bro. C. C. 158 ; Middleton v. Dodswell, 13 Ves. 266 ; Duckworth v. TrafforA, 18 Ves. 283 ; Metcalfe v. Pulvertoft, 1 V. & B. 180, 183 ; Davis V. Dnke of Marlborough^ 1 Swanst. 74 : 2 ib. 115 ; Tanfield v. Irviv-e, 2 Russ. 149 ; Aberdeen V. Chitty, 3 Y. & C. Ex. 379 ; Woodyatt v. Gresley, 8 Sim. 180, 188, 189 ; and see Middleton v. Sher- burrie, 4 Y. & C. Ex. 358. 2 Tanfield v. Irvine, 2 Russ. 149 ; Hart v. Talk, 6 Hare, 611 ; Mea4en v. Sealey, ib. 620 : 13 Jur. 297. 3 A petition ha.i been made use of, where the application was by the defendant ; Hiles v. Moore^ 15 Eeav. 175 ; and see Barlow v. Gains, 8 Beav. 329, 331. 4 Blackborough v. Ravenhill, 16 Jur. 1085, V. C. S. ; Grote v. Bing, 9 Hare, App. 50. 6 Per Leach, Ar». 1 V. & B. 183 ; Caitlard v. Caillard, 25 Beav. 512. 6 Hill V. Rimell, 2 M. & C. 641 ; Ramsbott&m v. Freeman, 4 Beav. 145 ; Meaden v. Sealey, 6 Hare, 620. ■ 7 See ante. 8 Dowlimj V. Hudson' 14 Beav. 423, 424, ii. ; and see Pitcher v. Helliar, 2 Dick. 580 ; Gibbins v Mainwajing, 9 Sim. 77 ; ante. 9 DaiKon V. Yates, I Beav. 301, 306 : 2 Jur. 960. 10 See Goodman v. Whitcoinb. 1 J. & W. 689 ; Glassington v. Thicaites, IS. . ; Wilson v. Wilson, 11 Jur. 793, V. C. K. B. 5 Bibbert v. Hibbert 3 Mer. 681, 683. 6 Tytee v. Tylee, 17 Beav. 583 ; and see Bainbrir/ge v. Blair, 3 Beav. 421, 424 ; Manners v. Farze, 11 Beav. 30 : 12 .lur. 129. 7 See Gockburn v. Raphael, 2 .S. & S. 453. 8 Seton, 1019. 9 Spence v. Handford, M. R. in Chambers, 17 Feb. 1865. 10 Crow V Wood, 13 Beav. 271. 11 Seton, 1005. 12 For forms of orders directing: receivers to be appointed, see Seton, 1002, 1774 MODE AND EFFECT OF APPOINTMENT. If the appointmeiit is of rents and profits of real or leasehold estates, the order directs the tenants of such estates to attorn and pay their rents in arrear and growing rents to the receiver ; but this direction should be omitted where the estates are out of the Province.^ If the appointment is of outstanding personal estate, or of part- nership property, the order generally directs the executors, or other parties, to deliver over to the receiver all securities in their hands for such estate or property, and also the stock-in-trade and effects of the partnership, together with all the books and papers relating thereto.^ If the receiver is appointed on behalf of one of several incumbran- cers, the order generally contains a declaration that the appoint- ment of the receiver is to be without prejudice to the rights of, or is not to affect, the prior incumbrancers upon the estate who may think proper to take possession of the estates and premises, by virtue of their respective securities ; and usually directs an inquiry what incumbrances there are affecting the estate, and the priorities thereof respectively ; and orders that the receiver do, out of the rents and profits to be received by him, keep down the interest and payments in respect of such incumbrances, according to their prior- ities ; and be allowed the same in passing his accounts,' Unless the person to be appointed receiver is named in the order, the appointment is made in a Master's office or in Chambers. Any party to the proceedings may propose a person to be appointed receiver : although a stranger cannot do so.^ The most fit person should be appointed, without regard to the party by whom he has been proposed;^ and, other things being equal, the person proposed by the party having the conduct of the proceedings is usually pre- ferred. 1 Seton, 1007, 1039. 2 For forms of orders, see Seton, 1002, 1030. 3 Ibid 1025, 1027. See Lewis v. Lord Zouahe , 2 Sim. 388, 393 : and Smith v. EJingham, i Beav. 232 as to the remedies of incumbrancers ; seealso ante. 4 Aitoriieij-General w Day, 2 Madd. 246. 5 Lespinasse v. Bell, 2 J. & W. 436. RECEIVERS. 1775 Where the Master or a Judge has exercised his discretion in the selection of the person appointed, it will not be interfered wij^h on appeal.^ The costs incurred with reference to the completion of the receiv- er's security, and subsequent thereto are, in the first instance, paid by the receiver, and will be allowed him in passing his first ac- count. A receiver appointed by the Court is appointed on behalf of all parties ; and not of the plaintiff, or of one defendant only f there- fore, if any loss arises from deficiency in his accounts, the estate must bear it, as between the parties to the suit.^ The effect of the appointment however, is not to oust any party of his right to the possession of the property, but merely to retain it for the benefit of the party who may ultimately appear to be entitled to it ; and when the party entitled to the estate has been ascertained, the re- ceiver will be considered as his receiver.* Where, however, a receiver had been appointed in consequence of the inability of the vendor of an estate sold under a decree to make out his title, the Court thought that the expenses of the receiver ought not to be borne by the purchaser, and directed that they should be repaid to him out of the fund in Court, together with the costs of the appli- cation.^ A. Receiver although an officer of the Court, stands in the position of trustee for aU interested in the estate or fund, — therefore in mak- ing the appointment, the Court will endeavor to select a person unexceptionable to all parties, not only on the score of fitness and competency, but also as regards the feeling of friendship or dislike between" the person proposed and those with whom he, in the dis- charge of his duties, will be likely to be brought into frequent communication," 1 Ley-v. Ley, 27 L. T. 267, L. JJ. ; and see Re Agriculturist Cattle Coynpany, 7 Jur. N. S. 590: 9 W. R. 682, L JJ. ; see also Creuze v. Bishop of London, "2 Bro. C. C. 253 ; Thomas v. Dawkin, 3 Bro. C. C. 508: 1 Ves. J. 452; Garland v. Garland, 2 ib. 137; Bowersbanlc v. CoUasseau, 3 ib. 164 ; Wilkins V. Williams, ib. 588 ; Tharpe v. Thar^e, 12 Ves. 317, 320 ; Wynne v. Lord Newborough, 15 Ves. 284 ; A ttorney-General v. Day, 2 Madd. 246, 253, and the cases cited ib. 252, 253, as to the extent of the control exercised by the Court over the appointment of receivers by the Masters under the former practice. 2 Davis V. Duke of Marlborough, 2 Swanst. 118 ; Bainbrigge v. Blair, 8 Beav. 421, 424 ; and see Meale V. Pink, 3 McN. & G. 476. 3 Lord Hutchinson V. Lord Massareene, 2 Ball. & B. 55. I 4 fiharp V. Carter, 3 P. Wms. 379 ; Boehm v. Wood, T. & R. 346. 5 McLeod V. Phelps, 2 Jur. 962, V. C. E. 6 Simpson v. 0. cL- P. R. Co. 1 Cham. Rep. 99. 1776 MODE AND EFFECT OF APPOINTMENT. It has been already stated, that where sequestrators, upon mesne proeess, are in possession of the lands and tenements in question in the cause, the appointment of a receiver of the rents and profits will have the effect of discharging the sequestration. ^ Where a receiver has been appointed of real or leasehold estates the parties to the record are usually directed by the order to deliver up to him the possession of such parts of the property as are in their holding ;'2 and the tenants of such other parts as are let are ordered to attorn to the receiver, and to pay to him their rents in arrear, as well as the growing rents.^ The receiver, therefore, as soon as his appointment is complete, should apply to the parties, and tenants to deliver possession and attorn accordingly' ; and if they refuse, he should report their refusal to the solicitor of the party on whose application the order was made : to the intent that he may take the necessary steps to enforce the order of the C'ourt.* Any party to the i^roceedings who is in possession of property ordered to be delivered to the receiver, and who neglects to deliver accordingly, should be served pei'sonally with the order directing such possession to be delivered ; and if possession is still withheld from the receiver, au application should be made by motion, ex parte, for a writ of assistance, directed to the Sheriff of the county whei'ein the property is situate, to put the receiver into possession, pursuant to the order.^ The application should be supported by an affidavit of sei-vice of the ordei', and of non-compliance. The writ is prepared, issued and executed in the manner before ex- plained.'' If a party to the proceedings is not directed to deliver up posses- sion to the receiver, he is not bound to do so ; but he will be charged with an occupation rent, for the premises in his possession." 1 Ante ; Shair v. Wright, 3 Ves, 22, 24. 2 See Seton, 1015 ; and see form of order, ib. 1023. In Daoin v. I>uke of Marlborough, 2 Swanst. 108, 116, the order appointing tlie receiver directed the Dulte to dehver up possession to him. 3 See form of order, Setun, 1002, No. 1. 4 See Griffith v. Griffith, 2 Ves. S. 401 ; Ireland v. Sade, 7 Beav. 65 ; Parker v. Dunn, 8 Beav. 407 ; Herman v. Dunbar, 23 Beav. 312. As to the course to be adopted, where the receiver finds another receiver in possession of the property, see Ward v. Swijt, (i Hare, 312 ; 12 Jur. 173 : and as to obtaining tlie previous leave of tlie Court, where the receiver isappointfdunder adecree^'/v) confesso, see ante, 5 Sec form of order in Seton, 1228. 6 Ante. Jiftndfield v. Randfield, 7 W. R. 651, V. C. K. Tlie party will not be ordered, befoie the hearing, to l>ay an occupation rent from a date previous to the order fixing the rent and appointing the recei\'er: Lloyd v. Maaon, 2 JI. & C. 487. RECEIVERS. 1777 Where any tenant of the property refuses to attorn to the recei- ver, or to pay him any arrears of rent/ he should be served with a copy of the order directing the appointment of a receiver, and of the order or certificate completing the appointment,^ and with a notice in writing, signed by the receiver, requiring him to attorn and pay ; and on refusal, the tenant should be served with a notice of motion to attorn and pay within a limited time after the service of the order to be made on the motion. The person sei'ved may appear on the rflotion, and inform the Court whether he is in possession as tenant or not.^ If he does not appear, the order will be made upon an affidavit of service of the notice of motion, orders certificate, and notice to attorn, and on proof by affidavit of the refusal to attorn.* The order will be made without costs.^ A copy of the order indorsed in the usual manner, must then be served personally upon the person thereby directed to attorn ; and upon production to the Record and Writ Clerk of an affidavit of such service, and of an affidavit by the receiver of non- compliance, he will seal an attachment against the disobedient party. The attachment is prepared, issued and executed in the manner before explained.^ In Reid v. Middletoii,'' it appeared that the tenant in possession had not agreed to pay anj' specific rent ; and, in consequence, an order was made, that an occupation-rent should be settled by the Master, and that the tenant should pay the arrears and future pay- ments of such occupation-rent ; and where the tenant had not attorned, he was, nevertheless, ordered to pay his arrears of rent within fourteen days.^ It may be mentioned here, that the attornment to the Eeceiver will not enure for the benefit of the person who may ultimately be found to have in him the legal estate.'' The possession of a Eeceiver is deemed to be that of the Court ; and any attempt to disturb it, without the leave of the Court first 1 See Codrington y Johnntone, 1 Beav. 524 ; Dujjield v. Elwes, 11 Beav. 590. 2 See ante. 3 Reid V. Middleton, T, k R. 456 ; Ilobhouse v. IloUcombe, 2 De G. i S. 208 4 For forms of orders, see Seton, 1012, No. 1 ; 1013, No. 2. 5 Hobhouse v. IloUcombe, 2 De G. & S. 208. 6 Ante ; Braithwaite's Pr. 172, 173. 7 T. & K. 45S. ^ Hobson V. Sherwood, 19 Beav. 575 ; and see Mitchel v. Buke of Manchester, 2 Dick. 787. 9 Emm V. Mathias, 7 El. & Bl. 600 : 3 Jur. N. S. 793, Q. B. ; and see Hughes v. Hughes, 8 Bro. C.C. 87 ; 1 Vea. J. 161. As to attornment in general, see Wood/all, 20G, 208 ; and* to a receiver in Chancerj', ib. 61. 1778 MODE AND EFFECT OF APPOINTMENT. obtained, will be a contempt on the part of the person making it ; and will be restrained by injunction ; ^ or the person making it will be committed for his contempt.^ This was settled in Angel v. Smitli,^ where the rule was laid down, both with respect to Eeceivers and sequestrators, that their possession is not to be distui'bed without leave ; and the same rule will be acted on, in cases where the Eeceiver has been appointed erroneously,* or without prejudice to the rights of persons having prior charges.^ The rule does not, ho.wever, apply until a Eeceiver has actually been appointed ; and a direction to appoint a Eeceiver is not, in this respect, equivalent to the order appointing him.* The Court will not protect a Sheriff executing process, after he has notice from a Eeceiver ; ' but will order him to withdi'aw from the possession, and restrain proceedings against him by the execution creditor ; ^ and where the Sheriff has taken property, part of which is claimed by a Eeceiver, the latter will be directed to give a list of the property claimed by him to the Sheriff ; who will be ordered to withdraw from the possession of the specified property.^ It has recently been held, in Ireland, that where a Eeceiver has been appointed over the estate of a tenant for life, the remainderman has a right, immediately on the decease of the tenant for life, to go into possession, without making any application to the Court.^" Any person who considers himself prejudiced by having a Eeceiver put in his way, must apply by motion, on notice, for an inquiry as to his interest, or for leave to commence proceedings against the Eeceiver ;^^ and he must do this, although his right to 1 Angel v. Smith, 9 Ves. 336 ; Tinh v. Ruiidle, 10 Beav. 318 ; Evelyn v. Lewis, 3 Hare, 472; Russel V. Bast Anglian Railway Company, 3 M'N. & G. 104, 117 ; Turner v. Turner, 16 Jur. 218, V. C. Ld. C. ; IJawkim v. Gathercole, 1 Drew. 12 ; Randfield v. Randfield, 1 Dr. & Sm. 310 ; Lane v. Sterne, 3 Giflf. 6;9 : 9 Jur. N. S. 320. 2 Broad V. Witkham, 4 Sim. 511 : Marsh v. Goodall, Seton, 1013 ; and see Ward v. Swift, 6 Hare, 812 : 12 Jur. 173. 3 9 Ves. 335. 4 Ames v. Trustees of the Birkenhead Docks, 20 Beav. 332 : 1 Jur. N. S. 529 ; Randfield v. Randfield, ubi sup. 5 See Anon., 6 Ves. 287 ; Bryan v. Cormick, 1 Cox, 422. 6 Defries r. Creed, 11 Jur. N. S. 3G0 ; 13 W. R. 632, V. C. K. 7 Try v. Try, 13 Beav. 422 ; Rock v. Cook, 2 Phil. 691 : 2 De G. & S. 493 ; Onyon v. IVashioume, U Jur. 497, V. C. E. 8 Russell V. East Anglian Railway Company, 3 M'N. i G. 104 9 See 'A'ilmer v. Eidd, Seton, 1002, No. 2, where the order ij given. 10 Re Stack, 13 Ir. Chan. Rep. 213. „ .,, 11 Gomme ". West, 2 Dick. 472 ; Anon., 6 Ves. 287 ; Bryan v. Curmick, 1 Cox, 422; Angely. Smith, 9 Ves. 335, 336 ; Brooks v. Greathed, 1 J. & W. 176, 178 ; Smith v. Earl of Effingham, 2 Beav. 232; Gooch v. Haworth, 3 Beav. 428; Russell v. East Anglican Railway Company, ubi sup. : Potts V. Wariinck, Ac, Canal Company, Kay, 142. RECEIVERS. 1779 take possession is clear.^ The inquiry as to interest is con- ducted in the same manner as it would be if the property were in the possession of sequestrators under a commission of seques- tration.^ It may be mentioned here, that where an ejectment was actually brought against a Eeceiver, although it was without the previous leave of the Court, the Court directed an inquiry whether it would be for the benefit of the parties interested, who were adults, that the Receiver should defend the ejectment, and charge the expense in his accounts.^ Where a Eeceiver paid a judgment creditor of the defendants', an amount demanded by him under a garnishee order obtained on a consent improperly given by the Receiver, the judgment creditor was, on motion, ordered to refund the amount to the defendants ; and he and the Receiver were directed to pay the costs of the motion.* The appointment of a Eeceiver does not affect the rights of the landlord of the premises ; but he will not be permitted to exercise those rights without first obtaining the leave of the Court ; and where he has not distrained, and the fm-niture in the house of a tenant has been sold under the direction of a Receiver, the land- lord has no priority over the other creditors in the proceeds of the sale.^ Salary and Allowances. Unless it is otherwise ordered, (as where he consents to act with- out salary,® a Eeceiver will be allowed a salary, or have some other allowance made to him, for his care and pains in the execution of his duties. The amount of the salary or allowance is not, in general, fixed till the passing of the first account: when the Receiver will be allowed either a per centage upon his receipts, or a gross sum, by way of salary. 1 Anon., 6 Ves. 287. 2 Ante. 3 Anon., 6 Ves. 287. 4 De Wintoa v. Mai/or of Brecon 28 Beav. 200 ; 6 Jur. N. S. 1046. 5 Satton V. Rees, 9 .Jur. N. S. 456, V. C. K. 6 Ante. 1780 SALARY AND ALLOWANCES. The allowance to a Eeceiver of the rents and profits of a landed estate is generally 51. per cent, on the gross amount received. This allowance may, however, be increased, if there is any special difficulty in the collection; or diminished, or a stated salary allowed, where the rental is very considerable.^ Under very special circumstances, an order has been made that the Eeceiver should be allowed such salary as the Judge might, on the passing of each account, think reasonable.^ The subject of the amount jjroper to be allowed to a Eeceivei;, by way of salary, underwent investigation in Day v. Croft ; ^ and, in the judgment in that case, Lord Langdale, M. E., who had inquired of the Masters what were the principles upon which they acted, and the practice adopted on this point in their several offices, thus states the result of his inquiries : " The Masters have each of them been good enough to furnish me with a certificate ; and I find that there is no general rule which universally prevails as to the allowance to a receiver. Where the receipts consist of rents of freehold and leasehold estates, 51. per cent, upon the amount received is most frequently allowed. If there be any special difficulty in collecting the rents, on account of the sums being extremely small or of the payOients being very frequent, as weekly payments, then the allowance is increased. On the other hand, if there should be very great facility in receiving the rents, then less than 51. per cent, is allowed. One of the Masters has certified to me a case where, after consideration, he allowed only 4L per cent, for the receipts of rents and profits of freehold and leasehold estates. Another Master has certified to me a ease in which the sum paid to the receiver amounted to 300L a-year for the first year ; the Eeceiver was afterwards allowed 150Z. only for a succession of years ; which was afterwards reduced to 501. a-year, for the receipt of the same rents. It cannot, therefore, he considered as an universal or general rule that 51. per cent, should be allowed, even upon the receipts of rents and profits. It may be increased if there be any extraordinary difficulty ; or diminished if there be any extraordinar y facility in the collection. With respect to other receipts, each 1 Seton, 1006 ; see Day v. Gro/t, 2 Beav. 488 : 4 Jur. 429 ; Malcolm v. O'Callaghan, 3 M. & C. 62 1 Jur. 838 ; see also Shore v. Shore, 4 Drew. 501, 510, as to the i)arty to bear the allowance. 2 Neave v. Douglas, 26 L. J, Ch. 766, M. R. 3 2 Beav. 488, 491, ubi sup. BECEIVEKS. , 1781 Master considers himself bound to have regard to the degree of facility or difficulty there may be in receiving them. They have sometimes allowed 2^1. per cent ; but, for gross sums of money, this has been very much reduced, and 1^1. per cent, has been allowed upon many occasions. It appears, therefore, that the Masters, as they ought, consider upon each occasion what is iit or proper to be allowed, having regard to the degree of difficulty or facility experienced by the receiver." In the case above cited, an objection was taken to an allowance which had bean made to the Receiver, of 51. per cent, on certain gross sums, which had been paid to him for the redemption of mortgages and annuities, and for annuities and interest upon mortgages ; and Lord Langdale thought that there was sufficient in the case to warrant an order to review the report.^ The practice of the Masters' offices, as above stated, is generally followed in the Chambers of the Judges, in fixing the salary, or making an allowance, to a Receiver. In connection with this subject it may be mentioned, that where a Receiver had been appointed to get in the outstanding estate of a testator. Lord Langdale held that the Receiver had not such a vested right to collect the whole estate as entitled him to prevent the money being paid into Court, without passing through his hands, in order that he might obtain his poundage ; and made an order, on the petition of some of the parties interested, that a debtor to the estate, who was willing to pay the amount of his debt to the Accountant-General at once, might be at liberty to do so.^ A Receiver may be entitled to allowances beyond his salary, for any extraordinary trouble or expenses he may have been put to in the performance of his duties ; or in prosecuting or defending any legal proceedings brought by or against him.^ If, however, such allowances are objected to, they will not, in general, be sanctioned, unless they have been incurred with the approbation of the Court or Judge.* 1 Day V. Croft, 2 Beav. 488 : 4 Jur. 429. 2 Haigh V. Orattan, 1 Beav. 201. 3 Potts V. Leighton, 15 Ves. 276 ; Courand v. Hanmer, 9 Beav. 3. 4 Re Ormsby, 1 B. & B. 189 ; Sioaiy v. Dickon, 5 Sim. 629 ; Bristmie v. Neeiham, 2 Phil. 190. 1782 SALARY AND ALLOWANCES. Upon this ground, Lord Cottenham discharged an order of Sir Lancelot Shadwell, V.C, directing the Master to review his report upon a Eeceiver's account, with reference to certain sums which the Eeceiver had claimed on account of journeys taken by him to France, for the recovery of property belonging to the estate before the tribunals there, but which the Master had disallowed. It is to be observed, however, that the result of the journeys had been unfavourable, and that no benefit had accrued to the estate from the proceedings instituted ; but it may be inferred, from his Lord- ship's judgment, that if success had attended the exertions of the Eeceiver, and he could have shown that such success had arisen from his presence in Paris, he would have considered it "inequit- able for the parties to take the benefit of such exertions, without defraying the expenses which had attended them, although no previous authority for incurring them had been given."^ In a ease before Sir Anthony Hart, in Ireland, where the Eeceiver of a lunatic's estate had instituted proceedings, which, being wrong in form, he abandoned, and afterwards took other proper proceedings, which were successful for the estate, the Court refused to allow him the costs of the abandoned proceedings : although the Master reported that the Eeceiver had acted bona^fide, and ought to be allowed the costs.^ Where an application by a defendant against a Eeceiver was refused with costs, and the defendant was unable to pay the costs, the Eeceiver was held to be entitled to deduct his costs, as between solicitor and client, from the balance in his hands.^ Powers, Duties, and Liabilities of Receivers. The course to be pursued, to obtain possession or attornment of estates comprised in a receivership, has been discussed in a former page. If a solicitor in the cause has received rents, he must pay them over to the Eeceiver appointed therein ; and he will not be per- mitted to set up a lien on them for his costs.* 1 Malcolm V. O'CaUaghan, 3 M. S C. 62, 68, 63 ; 1 Jur. 83S ; ib. ; Bristowe v. NeedlMm, 2 Phil. 190. 2 jRe Mtmtgxrmery 1 MoU. 419. 3 Courand v. Hanmer, 9 Bsav. 3. 4: Wickens v. Townshend, 1 R. ot M. 361. RECEIVERS. 1783 The Receiver is entitled to all the rents in arrear at the time of his appointment/ and to the rents which subsequently accrue during the continuance of the receivership ; and an order may be obtained on motion or summons, with notice to the tenant, for payment thereof by him to the Eeeeiver, notwithstanding he has not attorned.^ After the tenants have attorned to the Eeeeiver, and so created a tenancy as between them,^ the Receiver may also distrain, in his own name, for rent accrued during such tenancy,^ without first obtaining an order so to do f but a distress for rent accrued before that time must be made in the name of the person who has the legal right to the rent ; ® and if he is a party to the suit, or otherwise bound by the proceedings therein, or if there is any doubt who has the legal right to the rent, an application should be made to the Judge at Chambers for his directions thereonJ It appears also, from Brandon v, Brandon,^ that the practice is for the Receiver to distrain upon his own discretion for relit in arreaj- within the year ; but if in arrear for more than a year, then an order is necessary. It would seem that a first mortgagee has not, as such, a right to the rents and profits of the mortgaged premises. Where, therefore, a puisne incumbrancer filed a bill, and obtained the appointment of a Receiver, who had since his appointment collected the rents and profits of the property, and paid the same into Com-t, and a prior incumbrancer, who was not a party to the first suit, filed a bill upon his mortgage and moved in that cause for an order to apply the rents so paid in by the Receiver to the payment of his claim the Court, under the circumstances, refused the application with costs, but gave the plaintiff liberty to renew the same in such manner, and in such suit as he should be advised.^ 1 Codrington v. Johnstone, 1 Beav. 524. 2 Bobson V. Sherwood, 19 Beav. 575, 3 Wood/all, 376 ; Evans v. Mathias, 7 EI. & Bl. 690, 601 : 3 Jur. N. S. 793, 796 ; and see White v. Srnale, 22 Beav. 72 ; S. C. Jwm. White v. James, 26 Beav. 191 : 4 Jur. N. S. 1214. 4 Wood/all, 376 ; Mitchel v Duke of Manchester, 2 Dick, 787. 5 Wood/all, 376 ; Pitt v. Snowden, S Atk. 750 ; Dancer v. Eastings, 4 Bing. 2 ; 12 Moore, 34 ; Bennett v. Robins, 5 Car. & P. 379. 9 Wood/all, 376 ; Pitt v. Snowden, ubi sup.; and see Shelly v Pelkam, 1 Dick. 120 ; Raincock v. Simpson, ib. 120, n. ; Hughes v. Hughes, 3 Bro. C. 0. 87 ; 1 Ves. J. 161. 7 Ibid. As to di-stresses for rent, see Add. Cont. 333 : Dixon, 194—230 ; L. C. Conv, 260—266; Wood/all, 357—429. 8 6 Madd. 473. 9 Bank of British North America t Heaton, I Cham. R. 176. 1784 POWERS, DUTIES, AND LIABILITIES OF RECEIVERS An application for leave to distrain is made at Chambers, and or- dinarily by notice of motion ; but it is not nsual to.draw up a formal order in such cases : the minute made by the Registrar of the directions given been deemed sufficient.^ In an ordinaiy case, a Receiver may, in his discretion, let for a year certain or less, or for any term not exceeding three years, without applying for the sanction of the Judge.^ He has also an implied authority to determine such tenancies by a legular notice to quit f but he ought not to raise their rents, on slight grounds without leave of the Court ;^ and he cannot bring an ejectment, or take any other step to evict a tenant, without the sanction of the Judge.^ Where the Receiver of a Railway Company was appointed to re- ceive " the rents, issues and profits of the Railway " Held, that it was his duty to receive the gross receipts of the Company for the carriage of passengers, freights, mails, &c., and to pay the bills for running expenses thereout, and not to receive only the surplus after paying expenses. The order for the receivers appointment should direct the payment to him, of the tolls and profits arising from the Railway.'' Where in consequence of the misconduct of a managing partner, a Receiver had been appointed, a motion calling on a person in pos- session of property of the partnership (the legal estate in which was in such partner to deliver up possession or attom to the Receiver was granted, though the person in possession swore that the con- veyance by which such legal estate became vested, though absolute in form was executed by the deponent as a security only.'^ In a suit in which a Receiver of partnership effects had been appointed and a sequestration issued against the defendant for contempt, the Court retained a motion against third persons for delivery or pay- ment to the Receiver or sequestrators of a promissory note, the 1 For form of order to distraiD in the name of a defendant, see Setoti, 1013, No. 3. 2 Shuff V. Holdaway, M. R. in Chambers, 27 May, 1863. 3 Wood/all, 52, and cases there cited. As to notices to quit, see i&. 286-308, 998. 4 Woodfall, 52. 6 Wynne v. Lord X ewborough, 1 Ves. J. 164 : 3 Bro. C. C.88. 6 Simpsmi V. 0. i P. R. R. Co., 1 Cham. Rep. 126. 7 Prentisn v. Brennan, 2 Grant, 18. RECEIVERS. 1785 property of the partnership ; transferred subsequently to the issuing of the injunction and sequestration, but before the note became due by the defendant in a foreign country, the affidavits as to the bona fides of such transfer being contradictory : the Court giving leave to file a bill against such third persons.^ A Receiver may, with the sanction of the Judge, demise for terms of years ; ^ but, under the present practice, leases of property in the hands of a Receiver are usually directed to be made by the person having the legal estate or power of leasing ; and, if necessary, re- course is had to the provisions of the various statutes conferring jurisdiction on the Court to sanction leases. The sanction of the Judge to a lease, or agreement for a lease, of property comprised in a receivership is obtained in the manner before explained in treat- ing of the management of property.^ The Court will not permit a Receiver to lay out more than a small sum at his own discretion. It is improper, therefore, for a Receiver, or a guardian, to do, without the sanction of the Judge, any act which may involve the estate in expense.* Upon this ground, if an ejectment is brought against a Receiver, or an action for anything done by him in the performance of his duty, he should not defend the action without the sanction of the Judge previously obtained; and where the Receiver, without the authority of the Court, defended actions- arising out of a distress made by him upon a tenant of the estate, for rent, the Court refused to allow him his costs of the action,^ So likewise, although a Receiver may lay out small sums of money in customary repairs, or may allow the same to the tenant, the Court is not in the habit of permitting Receivers to apply the trust funds in repairs, to any considerable extent, without a pre- vious application to the Judge.^ Formerly the Court acted strictly upon this rule, and never permitted a Receiver to lay out money on 1 Prentiss v. Breniian ; Re Bunker, 2 Grant, 322. 2 1 Piatt on Leases, 389 ; M'ooiifall, 51 ; see also Daneer v. Hastings, 4 Bing. 2 ; jfeale v. Bealiiig, 3 Swanst. 304, n.; Wynne v. Lord Kewborough, 1 Ves. J. 164 : 3 Bro. 0. C. 88 ; Gibbins v. Howell, 3 Madd. 499 ; Baylies v. Baylies, 1 Col. 537. 3 Ante ; and see Whitehead v. Bennett, 5 W. R. 419, V. 0. K. 4 What is said, ante, as to management of property by trustees will apply, in general, as to receivers. 5 Swaby v. Dickon, 6 Sim. 629. 6 Attorney-General v. Vigor, 11 Ves. 563 ; and see Blunt v. Clitherow, 6 Ves. 799 ; Thomhill v. Thornhill, 14 Sim. 600. As a general rule, the amount should not exceed 301. a year. Where the amount proposed to be expended by the receiver is small, the sanction of the Judge will be given on production of a letter from the receiver, stating the propriety of the intended expenditure, and the maximum amount to be laid out. 1786 POWERS, DUTIES, AND LIABII.ITIES OF RECEIVERS. the estate without a previous order ; but now, where the Receiver has laid out monej', in repairs or otherwise, without such previous order, he may be allowed the money so laid out, if it is found to have been beneficial to the estate ; ^ and where he has defended an action successfully, he may be allowed his costs, although he had not obtained the previous sanction of the Gourt.^ Where a Receiver had made an investment unauthorized by the Court, by which a profit had been made, the amount realized was directed to be added to the principal.' Mowat, V.C, said that the investment was not one which strictly a Receiver should have made, that the principal was risked, and any profit so made should be added to the principal and treated as such. When a Receiver is appointed to get in outstanding personal property, it is his duty to collect all that he can get at : to enable him to do which, the order, under which his appointment is made, usually dii-ects the parties to deliver up to him all securities in their possession for such property, together with all books and papers relating thereto.* If the parties in whose hands such securities or papers are refused to deliver them up, the Receiver should give notice of such refusal to^ the party conducting the proceedings : to the intent that he may take the necessary steps for enforcing the order. If the persons indebted to the estate refuse to pay the amounts due from them, the sanction of the Judge must be obtained to the Receiver putting the same in suit.^ The power to bring suits on the permission of the Master being obtained is sometimes omitted in the order under which a Receiver is appointed. In such a case the Master has no authority to grant this leave, and the proper course is to apply in Chambers. Where a Receiver appointed to manage an estate finds it necessary to sue for debts due to it, an application for permission to do so must be made, supported by afiidavits showing the expediency of institut- 1 Tempest v. Ord, 2 Mer. 56 ; and see Morrit: v. Elme, 1 Ves. J. 139 ; Blunt v. Clitherow, 6 Ves 7W, and A ttm-ney-General v. Vigor, 11 Ves. 563. 2 Bristome v. i\eedham, 2 Phil. 190. 3 Baldwin v. Crawford, 2 Cham. Rep. 9. i See fonn of order, Seton, 1002, No. 1, ante. 6 See Seton, 1013, 1031 ; and Wood v. Bitchings, 2 Beav. 289, 294 : 4 Jur. 86S. RECEIVERS. 1787 ing such proceeding.! It is a rule of the Court, well established, and one which is essential for the due protection of its ofBcers, that no action shall be allowed to be prosecuted against a Receiver, or those in possession under him, without the leave of the Court.^ Where the order directs that the Receiver shall keep down the interest of incumbrances, or make any other payments, he must> of course, comply with that order ; and the sums so paid by him win be allowed him in his account. He must, however, take pro- per receipts from the persons to whom he makes such payments ; ' and it must be remembered that, in passing his accounts, the Receiver will be subject to the rules to which all other accounting parties are subject ;* and he will only be allowed to discharge himself by affidavit as to those payments which are under forty shillings : for all other payments, he must produce proper vouchers. A Receiver will be responsible for any loss which may be occa- sioned to the estate from his wilful default : therefore, if he places money received by him in what he knew to be improper hands, the Court will oblige him to pay it out of his own pocket.^ But if he deposits the moneys with a banker for safe custody, he wiU not be answerable for the failure of the banker if the moneys are not mixed with his own moneys, and they were bona fide deposited for safe custody, under circumstances in which they could not properly have been paid into Court^ A receiver, however, will be held answerable for the loss occa- sioned by the failure of a banker with whom he deposited moneys for security, if the deposits are made in such a way that he parts with the absolute control over the fund. Therefore, in the case last cited, where a Receiver paid the sums which he had received into a banking-house to the joint-account of his sureties, under an arrangement with them that all drafts for the «um so paid in should be written by one of the sureties and signed by himself, it was held by Lord Brougham, and afterwards by the House of Lords upon 1 Tk&tnas V. Torrance, 1 Cham. Rep. 9. 2 Per strong, V.C., in Colemanv. GlanvUle, 18 Grant, 43. 3 As to the receiver's liability to an incumbrancer, in c-j^e he allows an improper party to receive rents, see Gurden v. Bacicock, 6 Beav. 157. 4 Ante. 5 Knight v Lord Pliinouth, 3 Atk. 480 : 1 Diclc. 120 ; but see 2 E. & M. 219 ; see also Xowth v. Hous- eU, 3 Ves. S65. 6 Salway v. Salioay, 4 Buss. 60 ; 2 R. & M. 216 ; S. 0. nom. White v. Saugh, 9 Bli. N. S. 181 ; 3 CI. k F. 44. 1788 RECEIVERS' ACCOUNTS. appeal, that the Receiver was liable to the loss occasioned by the failure of the banking-house.' The case will be the same, if the Receiver deposits the money with, or remits it to, a banker for his own credit and use, and not to a separate account for the trust, and the banker afterwards fails ;^ or where, although he has deposited the amount to a separate account , he has been in default in passing his accounts.^ A Receiver is not, in general, justified in making any application himself to the Court. If, in the course of tlie proceedings, it should become necessary to take the directions of the Judge, the Receiver should apply to the party conducting the proceedings to make the necessary application ; and in the event of his refusal, the Receiver may himself apply.* Applications, with reference to the property under the manage- ment of a Receiver, are usually made by motion at Chambers f but where the application is made by a person not a party to the suit, with reference to landed property, it has been made by petition.^ Receivers' Accounts. A Receiver must leave his accounts at the Master's office, on the days appointed for that purpose by the Master's warrant. In the first account the Receiver passes he should state, in the column for obervations, how each tenant holds ; and every alteration should be noticed in the subsequent accounts : in this column should also be entered any remarks the Receiver may think proper to make as to the arrears of rent, the state of repairs, or otherwise.'' If the account is drawn in an iiTegular manner, the Receiver may be ordered to draw it up in jiroper form, and to pay the costs occa- sioned by his irregularity.^ 1 Salway v. Salviay, 2 R. & M. H5 ; Affd. iiom. White v. Baugh, 9 Bli. N. S. 181 : 3 D. & F. 44. 2 Wren v. Kirton, 11 Ves. 377. 3 Dreiier v. Maudedey, 8 Jur. 547, L. C. ; 7 Jur. 8, V. C. E. ; and see Wilkinson v. Bewick, 4 Jur. N. S. 1010, M. B. 4 Ireland v. Bade, 7 Beav. 55 ; Parker v. Dunn, 8 Beav. 497. 5 See Seton, 1017. 6 Richards v. Richards, Jahns. 255. 7 Bloxam, 51. 8 See Bertie v. Lard Abington, 8 Beav. 53, 60. RECEIVERS. 1789 Upon leaving the acco:iat, a warrant to proceed thereon is taken out by the Receiver's solicitor, and served upon such parties as are entitled to attend the passing of the accounts. If the Receiver neglects to take out this warrant, any of the parties may do so. Upon the return of the warrant, the parties attend at the Master's office and the account is substantiated in the manner before described.^ The Receiver also brings in his bill of costs upon passing the account : which is then taxed, and the amount included in his disbursements. Parties attending the passing of a Receiver's account only have costs from the Receiver after a decree disposing of the costs of the suit, and showing who is entitled to costs out of the rents : in other cases, the costs of the parties are costs in the cause. Where the parties are entitled to have their costs paid by the Receiver, such costs are taxed by the Master, and paid by the Receiver and included in his account.^ If the Receiver does not attended and substantiate his account, he may be charged with the amount of his receipts, but may be dis- allowed such of his payment as he has failed to vouch. When the accounts are passed and the costs revised, the Master prepares his report, which is settled, signed, filed, and confirmed as other re]3orts are. Although a Receiver is only bound by his recognizance to ]iass his accounts at the periods appointed by the order, he may, at an} time, apply to the Court to pay in monies in his hands; and if, in the interval between passing his accounts, he receives sums of such an amount as to make it worth while to lay them out, he, ought to pay them into Court ; in order that they may be made productive for the benefit of the estate.* Where the order for appointing a Receiver does not provide for the payment of his balances into the bank, the Receiver will not be allowed to avail himself of the omission, and to keep a balance in his hands without interest, under 1 Ante. 2 Btoxam, 52. 3 For a scale of such costs, see Regul. 8 Ang:. 1857, Sched. No. 15. 4 Shaw V. Hhodtt, 2 Russ. 539. 1790 EECEIVERS' ACCOUNTS. a pretence of waiting for some party in the cause to obtain an order upon him for payment. He ought to pay it into Court ; and. unless he does so, the Court will charge him with interest.^ A Receiver may be directed to pass his accounts and pay over the balance, although the bill has been dismissed,^ or the proceed- ings ordered to be stayed.' If the Receiver does not leave his account, or pay in the balance found due from him, at the appointed times, any party interested in the account may apply that he may leav« his account or pay in the balance, within a limited time (usually four days), after service upon him of the order to be made, and pay the costs of the appli- cation.* The notice of motion must be served on the Receiver ; and if he does not appear, the order will be made, on production of an affidavit of service of the notice, or, where the default consists in not making a payment into Court, of the order and certificate under which such payment is to be made ; and the Registrar's certificate of such default must be produced in support of the application. The order is drawn up by the Registrar f and a copy of the order must be served personally upon the Receiver ;^ or if personal ser- vice of the order cannot be effected, an order giving leave to sub- stitute service should be obtained at Chambers, or an ex parte application by motion supported by affidavit ;'' and the order must be served in conformity with the directions thereby given. If, after such original or substituted service, the Receiver neglects to obey the order, it may be enforced against him by attachment and other process of contempt.* A similar course should be pursued against a Receiver who is|directed to pay his balance to the parties, instead of into Court, and neglects to do so ; but it is irregular to issue a writ of fieri facias against him for such balance.^ 1 See Potts V. Leighton, 15 Ves. 273, 274. 2 Pitt V. Bonner, 5 Sim. 577 ; and see Hutton v. Beeton, 9 Jur. N. S. 1339, V. C S. 3 Paynter v. Carcic, Kay, App. 36, 44. 4 For form of order, see Seton, 1018, No. 1. 5 Ante. 6 Ante. 7 As to substituted service, see ante. 8 See ante, Seton, 1020. 9 Whitehead v. Lynes, 34 Beav. 161 : 11 Jur. N. S. 74 ; Aifd. on this point, 12 L. T. N. S. 332, L C. Westbury. Since this case it has been doubted, at the Record and Writ Clerks Offlce, whether an attachment can be issued against a receiver ; and whether the proper remedy against his person is not by an order for his commitment, on notice, under the former practice : as to which, see 1 Turn. est v. Ord, 1 Madd. 89. RECEIVEES. 1795 ground of ill-health, he was not only ordered to be discharged and his recognizance vacated, on passing his accounts, but he was allowed, although this part of the application was opposed, to retain his costs " of the application, and incidental thereto," out of the balance in his hands.'^ A Receiver is generally continued till the decree ; but if the right of the plaintiff ceases before that time, the Receiver may be dis- charged, and cannot be continued at the instance of a defendant. Upon this ground, Lord Eldon determined, in Davis v. Duke of Marlborough, that where the plaintiff had been satisfied by the payment of his demand, the order for the Receiver must be dis- charged : although the discharge was opposed by two creditors having prior annuities to the plaintiff's. His Lordship observed : " I apprehend that with the right of the plaintiff to have the Receiver, must fall the rights of other parties. It would be most extraordinary, if, because a Receiver has been appointed on behalf of the plaintiff, any defendant is entitled to have a Receiver appointed on his behalf." ^ A Receiver, being appointed for the benefit of all parties, will not be discharged on the ex parte application of the party at whose instance he was appointed f nor, wheie appointed on behalf of infant tenants in common, will he be discharged as to the share of one of them who has attained twenty-one.* If, during the course of the proceedings, the continuance of a Receiver becomes unnecessary, he will be discharged. Thus, upon new trustees being appointed in a suit, a Receiver was, on the application of the plaintiff, which was opposed by some of the defendants, who were beneficially interested in the property as legatees, ordered to be discharged, upon the new trustees under- taking, without entering into recognizances to account half-yearly, in the same way as the Receiver.-^ Where the Receiver becomes bankrupt, he will be discharged, and a new Receiver appointed. 1 Richardton v. Ward. 8 Madd. 266. 2 Swan-t. 167, 168 ; but see ib. 118 : Largan v. Bowen, 1 Sch. & Lef. 296. 3 Ihid. ; Davis t. Duke of itttrlbomigh, 2 Swanst. 108, 118 ; Bainbrigge v. Blair, 3 Beay. 421, 4iB. 4 Smith V. Lyster, 4 Beav. 227, 229- 5 Bainbrigge r Blair, 3 Bear. 421, 423. 89 1796 receivers' accounts. The appointment of a Receiver, made previous to a decree, will be superseded by it, unless the E.eceiver is expressly con- tinued.i The application to discharge a Receiver may be made by petition, or motion.^ The petition, or notice of the motion, should be served on aU the parties; but the Receiver, though served, is not entitled to appear at the hearing of the application. ^ The direction for the discharge of the Receiver may also be given in the decree at the hearing, or upon further consideration.* If the Receiver has not passed his iinal account, and paid oTer the balance found due from him, the order directs him so to do ; and if he has given a recognisance, it directs the recognisance to be vacated on his passing his final account, and paying the , balance found due from him, if that has not already been done.^ Where a recognisance is directed to be vacated, the order must be taken, together vi^ith an office copy of the Master's report, and the Registrar's certificate of payment of the balance into Court, or an office copy of an affidavit of payment of the balance of the per- son entitled to it, where the order directs such payment,* to a Judge, who, if the evidence of payment is satisfactory, makes a note of it, and marks the order with his initials. The order must ' then be taken to the Office where the recognisance is filed ; and the recognisance wiU be marked as vacated. If the recognisance is not duly vacated, and a material error is afterwards discovered in the Receiver's account, the money may be recovered.^ Where a Receiver is entitled to his discharge, he is also entitled to the costs of it.** A Receiver had been appointed to collect the gross amount of the tolls, rents, issues, and profits of the O. & P. R. Co. After- 1 See fomi of order, Setun, 1003, No. 6. 2 By consent of all parties, an application to vacate a Receiver's recognisance may be made by petition of course. 3 Herman v. Dunbar. 23 Beav. 212. i Setun, 1023. .5 For form of order, .see Sttcii, 1021. 6 Seton, 1023. 7 1 Turn. & Yen. 471. !< RichardKon v. Ward, 6 Madd. -IiX. RECEIVERS. 1797 wards the rolling stock of the company had been seized by a sherifi' ■anier Ji. fa. at the suit of another company not a party to the suit, the sheriff declined to seU the same unless authorized by the Receiver, who believing under the advice of counsel, that he had no control over the stock assented to the sale by the sheriff, and the same was accordingly sold. Held, on motion to remove the Receiver for misconduct that he had committed a breach of duty in not informing the Court of the seizure and threatenend sale, and in assenting to the sale witliout its sanction, but as it appeared that the Receiver had acted bona fide, and to the best of his judgment for the benefit of ail parties, the Court declined to remove him from his ofBce, but ordered him to pay the costs of the application.^ A Receiver, being appointed for the benefit of all parties to a cause, he should, on moving to vacate his recognizance give notice to all parties.^ Liahilitiex and Righfft of Sureties. The sureties of a Receiver cannot be discharged at their own re- quest. Where, therefore, an application was made to discharge a Receiver on the ground of misconduct, and the sureties joined in the application. Lord Hardwicke held, that no regard was to be paid to their application, unless it was for the benefit of the parties in the cause, or something of that kind : " for, if people voluntarily make themselves bail or sureties for another, they know the terms, and will be held very hard to their recognisance, and not discharged at their request to have new sureties appointed : for then there would be no end of it.'^ But although the general rule is not to discharge the surety of a Re- ceiver on his own application, during the continuance of the receiver- ship, such rule will yield to circumstances : " as where underhand practice is proved, and the person secured shown to be connected with such practice " ;* and where a surety does procure his dis- charge, during the continuance of the receivership, the Receiver must enter into a fresh i-ecognisance, with new sureties.'' 1 Simpson v. 0. ilaunsell v. Egan, 3 J. &Lat. 251. , 3 I>awgmi v. Jiaynes, 2 Russ. 4 fietvii 1038. 6 .SV(o«, 1036, 103S. TlhiS. RECEIVERS. 1801 The Court, in dealing with property in a colon}', has provided against the inconvenience likely to arise from the death, absence, or incapacity of the manager in existence, or appointed by the Com-t, by appointing another manager to act in such event. ^ Consignees appointed by the Court, in an administration suit, have a charge on the property, for payments sanctioned by the Coui't, in priority to incumbrances created before the suit; and will be allowed interest on the balance due to them.- A receiver and manager of a West India estate, who has been appointed at the instance of a mortgagee, is not entitled to the produce of the estate which has been shipped to the mortgagor's consignees prior to his appointment : although there had been no conversion prior to that time.' A manager of a West India estate is entitled to a commission on the produce sold or remitted, so long as he is resident in the island and personally acting; if he is absent, he is not entitled to the commission himself, but he may be allowed such sums as he has paid to others for the management of the estate during his absence, provided the payments are reasonable.* 1 Rutherford v. WitJcin.^oii, Setou, 1036. 2 Mm-rison v. MorrUmi. 7 De G. M. & G. 214 ; 1 Jur. X S. 1100 ; i Sm. & G S64 ; 1 Jiir. N. S. 339. 3 Codrington v. Johiiaioiie, 1 Beav. 620, 5:24. 4 Forrest v. Elices 2 Mer. 63 ; Scton, 103T ; aud see Chomherx v. (_,'::h!ipi,t, cited 2 Mer. 6n. 1802 CHAPTER XLI. SALE OF infant's ESTATES, UNDER 12 VICTORIA, CHAPTER 72. This Statute, with 13 and 14 Vic, ch. 50, sec. 8, gave to the Court a power by which it is enabled to administer the estates of infants with speed and economy. The Act is embodied in the Con. Statutes of U. C, ch. 12, sections 50 to 57 inclusive, and in the proceedings it was necessary, under Order 37 of the Orders of Jmie, 1853, to entitle the jpetition, both in the matter of the Infant " and in the matter of the 12 Victoria, chapter 12." Order 527 directs that "A petition for the sale or other disposition of the real estate of an infant is to be entitled in the matter of the infant." Order 528 provides that "Tlie petition is to be presented in the name of the infant, by his guardian, or by a person applying by the same petition, to be appointed guardian as hereinafter pro- vided;" and Order 529, that "The petition is to state the nature and amount of the personal property to which the infant is entitled — the necessity of resorting to the real estate — its nature, value and the annual profits thereof. It must also state circumstances suffi- cient to .justify the sale or other disposition of the estate, and the application of the proceeds in the manner proposed. The prayer must state specifically the relief that is desired ; it must designate the lands to be dis^jpsed of, and must propose a scheme for that purpose, and for the appropriation of the proceeds. If an allow- ance for the maintenance is desired, it must be so prayed, and a case must be stated to justify such an order, and to regulate the amount." The Court will not direct a sale of the real estate of an infant merely because the ancestor was indebted; it must be shewn that the estate will sustain loss, or that the creditors are about to enforce payment of their demands by suit.-^ 1 Re Boddy, 4 Grant, 144. SALE OF infant's ESTATES. 1803 In applying for the sale of real estate settled upon infanta, the mother, by whom the application was made, was required to join in the conveyance for the purpose of surrendering the life interest vested in her under the settlement.^ In directing the sale of infantp' real estate, the Court is not governed by the consideration of what is most for their present comfort, but what is for their ultimate benefit. The Court will order a sale of a portion of an infant's estate to save the rest when it is made to appear for the benefit of the infant. " Where property was devised by a testator to his widow for the maintenance and raising of his family, until the coming of age of the youngest child, and then to E. one of his sons, charged with certain payments, at intervals, to the widow and other children, with a provision for the substitution of another son in the event of E. dying under age or without issue : Held, 1st. That the Court had no jurisdiction to order a sale or mortgage of such property ; the Court having no power under 12 Vic, ch. 72, to dispose of the real estate of infants against the provisions of any last will; by which such estate was devised to such infants. 2nd. That such property was not the real estate of the infants within the meaning of the Act.^ All applications under 12 Vic, ch. 72, for the sale of infants' estate must come on before the sanie judge.* This Court will not allow to a relative of an infant, money expended by such relative in past maintenance of the infant, out of the proceeds of land of the infant sold in lieu of a partition under Con. Stat. U. C, ch. 86.'' Order 530 provides that " Tlie petition may pray for the appoint- ment of a guardian, as well as for the disposal of the infant's estate. In that case, a proper case must be made by the petition, and established by the evidence for the appointment of the person proposed;" and Order 531, that, "Upon all petitions for the sale of an infant's estate, the infant is to be produced before a Judge in Chambers, or before a Master." Order 532 provides that, "Where 1 Re Ken'ihddy, 1 Cham. Rep. 97. 2 lie McDonald, 1 Cham. Rep. 97. 3 Re OaUicatt, 1 Cham. Rep. 182. i Jic Hamell, 1 Cham. Rep. 388. 5 Kellar v. Tache, 1 Cham. Rep. 388. 1804 SALE OF infant's ESTATES. the infant is above the age of seven years he is to he examined, apart, by the Judge or Master, upon the matter of the petition, and as to his consent thereto, as required by the Statute ; and his examination is to be stated to have been talien under this order, and is to be annexed to and filed with the petition. Where th:; infant is under the age of seven years, the fact is to be certified by the Judge or Master before whom he is produced; " and Order 533, that "the witnesses to verify the petition are also to be produced before the Judge or Master, and are to be examined viva voce to the matter of the petition, and the deposition^ so taken are to be stated to have been taken under this order." Order 634, that, " The Masters of the Court are authorized to examine infants and witnesses under the i^reoeding order, without special order or reference." Order 635, that, "Upon a petition so verified, the Court may either grant the relief prayed at once, or make Such order as to further eyidence, or otherwise, as the circumstances of the case require." The practice under the Statute is rendered very simple by these orders. The petition being prepared in accordance with the order, an appointment is obtained from the Master verbally (for there is no one to be served), for the examination of the infants and wit- nesses. At the time appointed, the Master proceeds to take the evidence of the witnesses produced to verify the statements made in the petition. In the case of witnesses, the Master states in a brief certificate in the depositions inserted immediately after the style of the petition, that they are taken under Order 538 of the Consoli- dated General Orders of June 1868. The practitioner should by these witnesses verify every statement of the petition. The Master also examines the infant, and this must be done apart from other persons. The object of this provision is to free the infant from all influence — the presence even, of a parent, guardian, or other per- son who might sway his statement, and the Master should explain to him fully the object of the proceeding, and its probable effect on his interests. He sh'ould also ascertain that he gives his consent freely to the proposed sale, and that he has not been tutored into a consent. Where, however, the infant is under seven years of age, it is presumed that it is useless to examine one of such tender years, and the Master merely certifies to the fact of the ag,L, and SALE OF INFANTS ESTATES. 1805 does not examine him. The examination of the infant is not taken under oath, but the Master certifies that it is taken under Order 532 of the Con. Gen. Orders. The examination and depositions are then annexed to the petition, and given to thp solicitor, who moves on them in Chambers ex parte. If an order is obtained it is sometimes referred to a Master to conduct the sale, and if there be any special enquiries, the order is worked in his office in the usual way. Whether or not the report requires confirmation, will depend on the nature of the enquiries.-^ It is, however, the practice now, where the estate of infants is of small value, in order to save the expenses of a sale by auction, to direct an advertisement to be inserted in a newspaper, asking tenders addressed to the Eegistrar to be made for the property.^ 1 See ante, and Jte Vaggie, 1 Cham. Rep. 168, 2 Re Hansen, 1 Cham. Rep. 189. (' 1806 ) CHAPTEE XLII. APPOINTMENT OF NEW TRUSTEES. When it is referred to the Master to appoint a new trustee in the room of a trustee wlio is dead, or dechning to act, the course to be pursued is for the party obtaining the reference to leave in the Master's office a copy of the order on which a warrant is issued, underwritten, "Toapjjoint A.B., of , yeoman, trustee under the order made in this cause, dated " This is served on all the parties interested, and on its return, rivd voce evidence is given of the nature of the propei-ty to be entrusted to the proposed trustee, and of his fitness for the office. Any party interested may oppose the appointment, and show, of course by proper evidence before the Master, that the person nominated is not such a person as should receive the appointment, or counter proposals may be made, as in the CHse of a receiver. If a counter proposal be made, the practice will be precisely the same as lias been described when a receiver is to be appointed— with this difference, that, unless specially ordered by the decree, no sureties for a trustee are required. At the time the warrant is taken out, the party prosecuting the reference should file an agreement by the proposed trustee to accept the appointment in case he be approved of by the Master. It is im- poiiant that this be done, as it has sometimes happened that after the expense of a reference had been incurred, the person proposed declined to act. After hearing the evidence, the Master decides as to the propriety of the appointment, and if he thinks it proper, he certifies to that effect. It usually happens that the dii-ections for the appointment of a new trustee is part of a decree containing other directions or enquiries ; the Master may, in such a case, cer- APPOINTMENT OF NEW TRUSTEES. 1807 tify the appointment in the general repoii; — but he may, if it be desired, certify seperately, and this certificate is considered as a report. This report is filed, and may be appealed from in the same man- ner as other reports of a similar nature, but, upon the appeal, the Court will not enter into the comparative merits of the several per- sons who have been proposed by the different parties.^ It frequently happens that the order directing the appointment of new trustees, directs a conveyance of the trust estates to such new trustees, to be executed, and orders the Master to settle such conveyance. When this is the case, after the Master has made his report of the appoint- ment of the new trustees, the proper conveyances for vesting the estate in such new trustees are prepared, and brought into the Master's Office, and proceeded upon, in the same manner as other deeds. It may be mentioned, with reference to this subject, that in the conveyance to new trustees, the Coiu-t will not insert a clause to enable the new trustees to appoint others in their stead, unless there is a provision to that effect in the original instrument by which the trust is created,^ and that when the original deed does contain such a clause, the Ooiu't will not, on the application of the trustees themselves, appoint new trustees, without a reference to the Master f the rule of the Court being, that when persons are authorized to choose, if they will not exercise the power without coming to the Court, there must be a reference.* 1 Attorney-General v. Dymn, 2 S. & S. r>:i8 ■2 BmjUy V. Mansell, 4 Madd. 226. \ 3 V, Rnbarts, 1 .J. & W. 251. 4 Ih.: r'ule Webb v. Lnrd ShaJ'tcsbvi-i/, 7 Ves. 480 ( 1808 ) CHAPTEE XLIII. PAYMENT OF MONEY, AND TBANSFEK OP STOCK INTO COUBT. IVhen directed. One of the most ordinary methods by which the Court enforces its jurisdiction of preserving i:)roperty in dispute pending litigation, is, by ordering it to be brought in and deposited in Court. Order 352 provides that •' Money ordered to be paid into Court by any person, is to be paid into the Canadian Bank of Commerce, at Toronto, with the privity of the Registrar, and in no other manner." In England, the officer in whose name money is deposited, is termed the "Accountant General," and his duties are, in this Pro- vince, performed chiefly by an officer here called the Accountant, under Orders 352 et .sw/, and 568 et seq. With this explanation the English cases can be read without misleading. The payment of money or the transfer of stock into Court is most usually ordered, on interlocutory application, in the case of personal representatives, or other persons filling the character of trustees, having money in their hands, or stock under their control, to which the plaintiff can make out a 'prhmi facie title. ^ It is also frequently one of the terms upon vs'hich the Court grants an inter- locutory injunction.''^ It appears formerly to have been thought necessary for the plaintifl' to show, in support of an application of this nature 1 l>an},!i \. Daahji, :, Jur. N. S. 54, M. R.; Whitmurr v. Tiirijvand, 1 .1. & H. 290. ■2 Ante. WHEN DIRECTED. 1809 against an executor or trustee, that the executor or trustee had abused his trust, or that the fund was in danger from his insolvent circumstances ; but now, except in the case of a creditor suing for his own debt only.^ the Coiu-t will order so much of the trust estate as the executor or trustee admits to be in his hands, to be paid into Court, whether he has abused his trust or not, and without requiring proof of any danger to the property pending the litigation. - The existence of a discretionary power in the trustees over the fund affords no reason why the fund should not be ordered to be paid into Court : unless the exercise of the power would be thereby prevented. If, however, the trustees are about to exercise their discretion in a proper manner, the Court will, in order to avoid useless expense, decline to order the fund to be paid into Court. ^ In Blake v. Blake* Lord Eedesdale appears to limit the rule, as regards personal representatives, to cases in which there are no debts, or the debts are all paid and there is no purpose for which the money is to be left outstanding ; but the rule appears to be much more extensive : and any balance which may be in the execu- tor's hands will be ordered into Court, notwithstanding there are demands upon it to which the executor is liable. Thus, in Yare v. Hcvrisoii,^ an executor, having admitted a large balance of the personal estate to be in his hands, was ordered to pay the whole into Court : although be stated that an action at Law was depend- ing against him for a debt to a considerable amount, due from the testator. Liberty was, however, given to the executor to apply, in case the plaintiff in the action should recover against him. If the conduct of the trustees has been proper, and all the cestuisque trust are not before the Court, the trustees will only be required to pay in the shares of those before the Court ; " and where the trustees of a creditors' deed, who had duly invested the funds, claimed a lien on it for their unsatisfied costs, an application by a single creditor, suing on behalf of himself and all other creditors, for an order for payment of it into Court, was refused.^ 1 Reeve v. Goodwin, 10 Jur. 1060, V. C. K. B. 2 Straiige v. Ban-is, 3 Bro. C. C. 365 ; and see Elake v. Blake, 2 Sch. & Let 26 ; Rutherford v. Dawson, 2 Ball & B. 17 ; Edwards v. Edwards, 10 Hare, App. 69. 3 TaVbot V. Marshfield, 2 Dr. & Sm. 28S. i Ubi sup. 5 2 Cox, 377 ; but see Betagh v. Concannon, 2 Moll. 559. B Bainond v. Wallrer, 3 Jiir. N. S. 686, V. C W. 7 Chafers v. Headlam, 17 Jur. 764, V. C. W. 1810 PAYMENT OF MONEY. The same principle will apply to all persons who fill the charac- ter of trustees : whether they are such hy virtue of an actual appointment, or by implication. Thus, the Court has ordered an auctioneer to pay into Court the balance of the deposit upon a sale, admitted bj' him to be in his hands, after deducting his claims as auctioneer.^ Upon the same principle, where a testator, having a debt secured on lands, bequeathed the debt to the mortgagor, with a desire that he would give a reversionary interest therein to a third person, and the mortgagor sold the estate, he was ordered to bring the mortgage money into Court, for the benefit of the devisee, sub- ject to his own life-estate ; - and so, where the defendant had cove- nanted to pay a sum of money to the trustees of his marriage set- tlement, but had omitted to do so, he was ordered to pay it into Court. ^ "Where, also, the plaintiff, a shareholder in a company which had transferred its business, alleged that the directors of the company had, unknown to him and the other shareholders, received sums of money for making the transfer, they were ordered to pay such sums into Court.* Where an executor admits a sum of money to be due from him, in his individual character, to his testator, the amount will be ordered to be paid into Court.' This was done, notwithstanding a statement in the answer that the debts of the testator were not all paid, and that there were several outstanding for which the executor was liable.® In such cases, the Court assumes that, as the persons to pay and the persons to receive are the same, what ought to have been done has been done, and orders the payment, not as a debt by a debtor, but as of monies realized, and in the hands of the executor or trustee. Upon the same principle, money admitted by an executor to be in the hands of his partner, will be considered as in his own hands for the purpose of being called into Court ;^ but in Freeman v. Fairlie,^ it was held, that an admission by an executor that the whole amount of the property Avas invested in India, on public securities, either in his own name or in the name of a house in 1 Tateg V. Farcbrolher, 4 Maidd. 239 ; and see Bourne ^. Mole, 8 Beav. 177 ; Jiokes v. Seppings, 2 Phil. 19 2 ieiow V. King, 2 Bro. C. C, 600. 3 Sothwell V. Kotliwell. 2 8. 4 S. 218. 4 OttSkell 1. Chambers (No. 3), 26 Beav. 360 : 5 Jur. N. S. 52. 5 Rothwell V. Rothwell, 2 S. & S. 218. 6 Mortlock v. Leathes, i Mer. 491. 7 Johnson v. Aston, 1 S. & S. 73 ; White v. Barton, 18 Beav. 192 ; and see Roy \\ Gibbon, 4 Hare, 65, 66. 8 3 Mer. 39. WHEN DIRECTED. i ISll which he was a partner, but subject to his disposal, unless some part was in the hands of the house at interest, which he believed, might be the case, was not a sufficient admission of money in his hands to order the payment into Court of any part of it : for although an executor, dealing with money in his hands, is bound to ear-mark it, j^et, if he does not do so, and cannot answer as to the state of it, the Court has no power to act as upon an admission. ^ It is only upon the admission of the executor, or other trustee, that the trust money is actually in his hands that the Coui-t will order it to be paid in. if, therefore, a defendant admits a sum of money t(j have come to his hands properly belonging to the trust, but adds that he has made, or will have to make, payments on ac- count of the estate, he will be allowed to deduct the amount of the payments, and to pay in the balance only.^ This, however, will be the case only where the payments have been pro]3erly made. Where the payments have been improperly made : as w^here they involve a breach of trust : the trustee will not be permitted to avail himself of such payments for the purpose of resisting the payment into Court. Therefore, where executors had by their answer admitted the receipt of the testator's property, but stated that they had lent it on a promissoiy note : upon an applica- tion that they might pay the money thus lent into Court, it was held that, having admitted the receipt of the money, the executors could not, by alleging an improper application of it, protect them- selves from payment into Court.* So also, where monies, directed by a settlement to be laid out in government or i-eal securities, were lent by the trustees to the husband on bond, the trustees were or- dered, on motion, to pay the money into Court.'' This jjrinciple was likewise acted upon in Rothxvell v. Rotliivell,^ before referred to, in which the Court ordered the defendant to pay in a sum of money which he had contracted to pay to the trustees of his mar- riage settlement but had omitted to pay. And it is not only in eases where trust money has been improperly lent that it will be ordered into Court : it will be ordered in, even where the lending 1 See Roy v. Gibbon, i^Hare 05. 2 Anon. 4 Sim. 3.'i9 ; Hoy v. Gihbon, 4 Hare, fc5. Yigrass v. BinfieU, 3 Madd. 02 ; .soc also Beaumont v. Menclitli, 3 V. & B. 180 ; 2folce.s v. Seppiiigs, 2 Phil. 19. 4 Cullix V. Collin, 2 Sim. 365, 368. 5 2 S. i S. 217. 9° 1812 PAYMENTS AND TRANSFERS INTO COURT may have been warranted by the trust deed, upon the allegation that the fund is in danger.^ In ordei' to induce the Court to direct the immediate bringing in of a sum of money upon an interlocutory application, the money must be clearly trust moneJ^ Where it is not impressed with a trust, but is in the nature of a mere debt, the Court will not make an order for the payment of it into Court till the hearing of the cause. Thus, in Peacham v. Daw,'' where a bill was filed against a defendant, insisting that a certain sum of money claimed by her as a gift from the testator, shortly before his death, continued to be part of his assets, and upon the coming in of the answer the plain- tiff moved that the defendant might pay the money into Court, on the ground that she had admitted circumstances in her answei' which made it clear that it was part of the testator'.s assets, the ap- plication was refused. Where a Covirt of Equity traces out trust money in the hands of a person who has not, [jiiona facie, a right to hold it, that money must be brought into Court.^ It is not necessary, to induce the Court to order trust mone)' to be paid in, that the trust should be one absolutely declared. It will, in many cases, do the same, where the trust is only implied : as in the case of vendor's and purchasers, where, as the Court con- siders what is agreed to be done as done, it will treat the vendor as a trustee for the purchaser of the estate contracted for, and the purchaser as a trustee for the vendor of the purchase money.* Lord St. Leonards, jn his learned Treatise upon the Law of Ven- dors and Purchasers of Estates,^ thus states the rule in practice of calling upon a purchasers of estates to pay their purchase money into Court, in a suit for specific performance : " A purchaser in pos- session of the estate, may, upon motion, be ordered to pay the purchase money into Court. This has been done before answer '' but the purchaser has, in some cases, had the option to pay the 1 Payne v. L'^iUwr, 1 Ves. J. 170. 2 Madd. 98. 3 Leitlh v. Mcicaulaii, 1 Y. iV C. Ex. 260, 267 ; J'ai/.ie \. Collier, 1 Ves. J. 170 : seeiJOJt 4 London tO North-W:'.-,tci n Kaihmij v. Corporation o/jMiicaster, 15 Beav. 22. li Dixon V. Astley, 1 Mer. 133. 378, n. (b) : Burroughs \. Oakley, ill. 62. 3T6, n. ; Blackburn v. Stace, a Madd. 69 ; J'yke v. Nortlnmod, 1 Beav. 152, where tenant claimed option to purchase. WHEN DIRECTED. 1813 money, or give up possession ; ^ in others, occupation rent has been set, deducting interest upon the deposit ;^ and in others, a receiver has been appointed ;* and payment of the money will be ordered although by the agreement it is payable by instalments, and a por- tion of it is to remain secured upon the estate.* This rule has been adopted: where the possession has been given under a mutual apprehension that the title could be immediately made good f where the purchaser had a sort of mixed possession with the vendor, and had paid part of the purchase money, was insolvent, and had at- tempted, without effect, to sell the estate;^ where the purchaser approved of the title, and prepared a conveyance, and then raised objections ;' where the purchaser had been guilty of ladies and cut underwood ;^ and even in a case where it appeared, on the face of the abstract, that the title was bad, but the purchaser had sold and conveyed the estate to another purchaser.^ So where an acceptance of the title was inferred, i" Again, where a time was fixed for the payment of the purchase money by instalments, and the pi-operty was 'a coal mine.^^ f " If the estate be sold under a decree, and the purchaser enter into possession, he will be compelled to paj' his purchase money into Court, unless he entered with the express consent of the Court." 1- But where the sale is not by the Court, and, upon a parol con- tract at so much per acre, there is a dispute as to the number, and possession was given without anj^ understanding when the purchase money was to be paid, and the bill only seeks a performance as to the larger quantity -.^^ or the seller has thought proper to put the purchaser into possession, with an understanding between them that 1 Clarke v. Wihiiit, IS \eh. 317 : S}idth v. Lloyd, 1 Madd. 83 ; Morgan v. Shaw, 2 Mer. 138 ; n'ickliam V. Eve.-td, 4, Jladd. r,3. 2 Smithy Vacksoii. 1 Madd. 618 ; Smith v. Loyd, 1 Madd. 83. 3 Hall V. JenkiiiMiv, 2 V. & B. 12S ; Clarke v. Elliott, 1 Madd. 606. i Yo'ange v. Dvncoiiibe, Younge, 27.^- 5 Gibson v. Clarke, 1 V. & B. 500 ; and see S. C. , cited 1 Madd. 607. 6 Hall V. JcnMnmn, 2 V. & B. 125. 7 Walters v. Upton, G. Cloup: 92, n. ; but see Bonner \. Johnston, 1 Jler. 360 ; Cnitchlfii v. Jern- inghain, 2 Mer 50-'. 8 Burroughs v. Oaklei/, 1 Mer. Fr2, 376, n.; Ilixon v. Asthni, ih. 133, 378, ii. (b) ; Bradshaw v. Brnd- shaio, 2 Mer. 492.' 9 Brownv. KelUj, L. I. Hall, July 1818, M.S. 10 Boothby v. Walker, 1 Madd. 197 ; Swith v. Lloyd, 1 Madd. S3. 11 Buck V. Lodge, 18 Ves. V<0. 12 Anon., L. I. Hall, 16 -Taly, 1816, .M.S : Wilding v A ndrea'S, 1 C. P. Coop. t. Cott. 380. 13 Benson v. Gla^ti'.ilivri) Canal Company, C. P. Coop 42 : 1 C. P. Coop. t. Cott. 3,50. 1814 PAYMENTS AND THANSFEES INTO COURT. he shall not pay his money until he has a title : the purchaser cannot be called upon to pay the money into Court in this summary ■way ;^ uor can the payment be compelled where the vendor gives possession without stipulation;- or the purchaser was in possession under another title before the contract ;^ or the possession was given independently of the contract, and the seller has been guilty of ladies;^ although, in such cases, the purchaser, may make himself liable to the demand, by dealing imi:)roperly witli the estate, e.g., cutting trees, or selling it to another jierson :" or even ameliorating it, but changing the tenants.'' But the purcliaser, after a long period, will not be permitted to keep possession of the estate and also withhold the purchase money : if a title has not been made, he will be put to his election within a reasonable time, e.g., two months, to give up the possession or pay the purchase money."^ The same learned author then proceeds to deduce two simple rule.s from the cases : " 1st. Where the possession is taken under the con- tract, or is consistent with it, and the purchaser has not dealt im- properly with^the estate, the cause must take its regular course. -But, 2ni.lly, If the possession by the purchaser, without pa}'ment of the money, is contrary to the intention of the parties, oi- is held ac- cording to it, but the purchaser has exercised improper acts of own- ership : for example cutting timber by which the property is less- ened in value ; or selling the estate, by which the first seller's remedy is complicated without his assent : in such cases, the Court will interpose, and compel the purchaser to pay the purchase money into Court." 8 Where the plaintiff having the conduct of a sale, neglects to pay into Court, the deposit paid him by the purchaser at the time of sale, the Court will, on the application of the purcliaser, order hiui to do so. It appears that a purchaser at a sale under a decree has a right to take out the report on sale and get it confirmed, so as to 1 Gibson V. Clarke, 1 y. & B. 500. 2 Clarke v. Elliittt, 1 Madd. 60(i ; and see NoHhern Counties Union Railway v, S^rth Eastern iiaihvay, 6 "VV. E. 122, V. C. K. , where posse.ssion was taken by the defendants, under a power given them bj' the legislature. 3 Freebody v. Perry, G. Coop. 91 ; Bonner v. Johnston, 1 Mer. 366. 4 Fox V. Birch, 1 Mer. lOS. 5 Cutler v. Simoiis, 2 Mer. 103 ; Bramley v. Teal, 3 JIadd. 219 ; Gcll v. Watson, ib. 225. 6 Bramleii v. Teal, 3 Madd. 219. V Tin^al v. Cobham, 2 M. & K. :W.' ; Fmeler v. Ward. 6 Jur. .".47, 51. R.; Adams i. lleathcole. 1» Jur. :;ul, V. C. E. S .Sntjd. \. & !• 2S1. WHEN DIKECTEO. 1815 obtain a certificate of the purchase to himselt — at least where he is the sole purchaser.^ And where a sale has taken place under a decree of the Court and has been confirmed, an order will be made for the purchaser to pay the balance of his purchase money into Court, though no enquiry has been made as to title. ^ The princi|)le of ordering money into Court upon a trust by im- plication, has been acted upon in seveial cases. Thus, the proceeds of a fire policy, upon a freehold house, which had been renewed by an executrix after the death of a testator, were directed to be brought into Court, on the application of the widow, in a suit instituted by her for the administration of the testator's estates: not on the ground that the proceeds of the policy formed part of the personal estate, but because they were aflf'ected with a trust for the Ijenefit of the persons interested in the real estate.* And where good had been sisecifically, and not generallj^, consigned by a trade)- abroad to merchants in this country, the proceeds of the consign- ment, were held to be trust money in the hands of the consignees, and, upon a bill filed against them by the i-epresentative of the trader for an account, were ordered to be brought into Court.* The practice of the Court with regard to compelling the payment into Court of money constituting pai'tnership property, has been stated^ in the following manner : — " As the rule is that he who seeks equity must do equity, it seems clear that, where the plaintiff is a pri- vate debtor to the partnership, he cannot insist upon ah account, with- out paying the amount of his debt into Court. Thus, in an early case, it is laid down, that if one partner boiTows any money out of the partnership trade, his own share shall be answerable for it ; and he shall not be permitted to come into Equitj'-, and pray an account without making satisfaction for the debt.*^ So, in a case before Lord Nottingham, one partner having sued the other for money had and received, and the latter having filed his bill for an injunction to stay 1 Crooks V Glen, I Cham. Rep. 354. 2 Stewart v. Stewart, 1 Cham. Rep. 243 ; but see Crooks v. Street, 1 Cham. Rep. 95, and cases collected, ante. :^ Parry v. A shley, 3 Sim. 97. 4 Leigh v. Maeaiilay, 1 Y. & C. Ex. 260, 267 ; and see Venning v. Loyd, 1 De G. F. & J. 198 : 6 Jur. N. S. 81, where the proceeds of a policy of insurance liad been assii^ned, and there was a conflict of jurisdiction. Jj CoUi/er on Partnership, 200 ; and see Lindley, 817. ii 16 Vin. .4br. Partners (E), 5 ; Meliorucehi v. Royal Exehange Aanuraiice Company, 1 Eq. Ca. .\br. 8, pi. 8. 1816 PAYMENTS ANl) TBANSFERS INTO COUET. proceedings at Law and for an «,ccount, the Court entertained the suit, and decreed an account : the plaintiff having first paid into Court the money in question. ^ Upon similar principles it should seem, that if the defendant could by any means show that a specific sum is due from the plaintiff to the partnership as a private debt, that sum must be paid into Court by the plaintiff' before an account will be decreed. But one partner whether plaintiff or defendant, may receive partnership money and effects, and insist on ijot pay- ing in the amount, unless all the other partners A\'ill pay in what they have in their hands ;'^ and it has been laid down by Lord Eldon, that if a partner, as partner, receives money belonging to the firm, and admitting that he has received it, insists that there is a balance in his favour, there is no pretence for making him pay it in."^ (tif, however, a partner has received partnership money, under circumstances, from which it can be inferred that he had agreed not , to receive it, and that his receiving it was contrary to good faith, he may be ordered to pay it into Court.'' The general rule is, that a partner will not be ordered to pay ;)artnership money into Court, unless there is a clear admission, not only that he has the money, but that he is liable to pay it.^ Upon the principal of preserving property pending litigation, a party to an administration suit, who has been found to bb a debtor to the estate, and is in insolvent circumstances, will be ordered to paj' the amount of the debt immediately, into Court : if the debtor is a stranger to the suit, the usual course is to direct an inquiry as to what should be done.'^ The rule is that money belonging to infants is not ordered in equity to be paid to their guardian whether appointed by the Surro- gate Court or otherwise, but is secured for the benefit of the infants under the authority of this Court ; but the rule may not apply when the amount is small and is required for the maintenance, educa- 1 Gold V. Caiihn,,,. 2 Swanst. 325,"n. : 1 Cli. Ca 311. 2 Foster y. Dujvrhl. 1 .J. & W. 23-2 3 Ihtd. 252; but see Toulmin v. Copland, 3 Y. i: C. Ex. Ij43, where, although payment in m-- directed, leave was given the defendant to apply for repayment, out of a fund preWously paid in, of an.v sums which he might pay in discharge of the ]iartnership debts. 4 Per Lord Eldon, in Foster v. Donald, 1 J. S; W. 2.i2. 5 Collyrr on Partnei-ship. 202 : and sec Lindlri/, 817 ; Michardnon v. Bank of E/Ujiand, 4 M. ,^' G. Ifo, 171 ; 2 Jur. Oil ; but see DinnnVfy. ■■icllil. 2 Kiiss. 372. 6 Wcilk'-r V. Simpson, 1 Jur. X. S. t37o : not reported on this point, 1 K. l^; -T 713. WHEN DIRECTED. 1817 tion or other immediate use of the infants, or where some other special circumstances exist justifying an exception to the general rule. When one of the trustees was dead, and another was removed for misconduct, the remaining trustee was held to be entitled to be discharged from the trust.^ Where the trustee for infants resided out of the jurisdiction, and a person resident within the jurisdiction had a contingent interest in the trust fund, the fund was ordered to be secured in Court, instead of being paid over to the trustee.'^ In consequence of tlie danger to which the fortunes of infants are often exposed in private hands, the Court, on the administra- tion of an estate, takes charge of the share going to infants, and invests the same for their benefit, instead of the amount being left in the hands of a trustee. Since the establishment of a Govern- ment Dominion Stock the investment of infant's money by the Court should, as a general rule, be in such stock, rather than as formerly, in mortgages. When new trustees' are to be appointed, it is contrary to the course of the Court, without some very special reason to sanction the appointment of one trustee in place of three.* Although the Court will order trust money, admitted to be in the hands of a party, to be paid in, on interlocutory application, it will not order interest upon such money to be so paid.* The only case in which the Court appears to have acted in opposition to this rule is that of Freeman v. Fairlie f but that was under peculiar circumstances : the defendant having, by his answer, admitted 'that he had made interest to a larger amount than the sum he was ordered to pay in ; and Lord Eldon said, he was very unwilling to carry the practice further than it had been carried. The same principles which apply to trust monies, and will induce the Court to order them to be paid into the Bank, to the credit of the cause, will be acted upon in the' case of trust stock, or trust money invested in exchequer bills : which the Court will order the party holding to transfer into the name of the Accountant-General, in trust in the cause, or deposit in the Bank to the credit of the cause. The Court will also, wherever it may be necessary for theii- 1 Mitchell V. Ridley, 13 Grant, 415. 2 StUeman v. Ca-mpbell, 13 Grant, ■451. 3 Kingsmill v. Miller, 16 Grant, 171. 4 Wood V. Bournes, 1 V. & B. 60. 5 3 Mer. 29, 44 1818 PAYMENTS AND TRANSFERS INTO COURT. protection, order specific chattels to be deposited in the Bank with the privity of the Accountant-General. A tiTistee or executor does not, by payment of the trust fund into Court, discharge himself of his office ;^ nor does a payment of^finoney into Court, upon an interlocutory application, alter the rights of the parties interested in the fund.^ Therefore, if an executor or admin- istrator pays into Court money which he has received from the estate of the deceased, his right to retain a debt due to him from the deceased is not prejudiced ;^ and where the fund in Court is ^insufficient to discharge the administrator's debt, his right of re- tainer will prevail against the plaintifl^'s right to have the costs of the suit satisfied.* It has been said, that funds belonging to wards of Court cannot be transferred into the name of the Accountant-General to the credit of the cause, until the accounts have been taken, and the cer- tificate made ; this, however, must be understood as meaning merel}' not that such a transfer cannot be made, but that it will not operate as a discharge to the trustees until they have passed, their accounts.-'' Half I.I jyj'jhied for. When it is said, that where a Court of Equity traces out trust money in the liands of a person who has not jx-Zmrt facie a right to hold it; that money must Ije brought into Court,'' the dictum must be understood as implying that the person applying to have it brought in must have an interest in its protection. The general rule may V)e stated thus : that the plaintiffs must be solety entitled to the fund, or have acquired in the whole fund such an interest, toffether with others, as entitles tiiem, on their own behalf and the behalf of th(_)se others, to have the funds secured in Court." 1 Tho ijsiui V. TnmHitx, 2 Dr. & Sm. 8. •2 Xoh(c V. Sfinr, 29 Beav. 409. The only instance in which the payment into Cnuit will affect the riglit of the'parties is, where money due to a wife is paid into Court, in a suit to which the hus- band and wife are parties : which will have the effect of deprivinj^- the wife of her right by survi- vorshi]>, unless the payment be into the joint names of the husband and wife : see Lcprlnmudaye V. Teissier, 12 Beav. 200: and ««(('. 3 Lnnqton v ][iqqs, 5 Sim. 228 ; and see Hall v. Macdoiiald, lA Sim. 1 ; Tipping v. Putrcr, 1 Hare, 405, 411 '; MvtiUetna v. I',inU, 2 Coll. 246. 4 Chixmm v. Bewex, 5 Buss. 29 ; ante-. 6 Beru-m/t v. Rich 1 Bro. C. C 50 ; see *. Ed. Belt. n. (1). Ante. 7 Fire-mtm y Fairlic, 3 Mer. 29 ; Wilton v. Hill 2 De G. M. & G. S07, S09. HOW APPLIED FOR 1819 Although the Eule of Equity is that money in the hands of a stake holder held for the benefit of others whose rights are to be disposed of by the Court, will usually be ordered into Court, still in such a case it must be clear that some of the parties litigant are entitled to the fund or a portion of it. Where, therefore, certain moneys, the proceeds of a policy of insurance which had been de- posited with the attorney of a bank for the purpose of being held in trust foi' such bank, and with the proceeds to pay off the liabilities of the party making such deposits to the bank, had been paid to, and were still in the hands of the attorney, and the depositor, without showing what amount was due to the bank applied to have the money paid into Court Ijy the Attorney : the Court under the circumstances refused the application.-' It seems, however, that where the plaintiff is merely entitled to a portion of a fund, which portion is clear, he will only be permitted to have the portion, to which he is entitled, secured : therefore, where a widow, as administratrix of her husband, was called upon to transfer into Court a sum of Bank Annuities which formed part of the personal estate of her husband, whose debts had all been paid, the Court of Exchequer thought that, as she was clearly entitled to a third of the personalty, they could not keep her out of the possession of that part ; and accordingly granted the appli- cation only as to two-thirds of the Bank Annuities.^ If the applicant has a clear interest in one part, and a contingent interest in the remainder of the fund, the whole will he ordered to be paid into Cfturt.* If the interest is not clear, the f md will not iu genera,! ija ordered to be paid in.'* If the interest is i^atin^'snt, th; fund m ly be ordered to be paid in ; but then, thjre must be some reason shown for the interference of tlie Court.-'' Applications for payment of money or transfer of stock into Court before decree are usually made by motion : which must be served on the party required to make the payment or transfer. If opposed, the motion is frequently adjourned for hearing in Court. ^ 1 CiirbrM v. Meyers, 10 Grant, 36; and see Leonard v. Bkn:l\ 5 U. C. L. J. 2S0. 2 Rogrrii v. Rogers, 1 Anst. 174. 3 JSartiett V. Bartlett, 4 Hare, 031. 4 St. Victor V. Deremix. 13 Sim. 641 ; Score v. Ford. 7 Beav 3.33, 33(i. 5 Ross V. Ross, 12 Beav. 89 ; and see Bartl'tt v. Bartli-tt. 4 Havu, «31 ; Marijatt r. Man/att, 2 W. E. 676, v.- 0. K. 6 See Seton, 47. 1820 PAYMENTS AND TRAXSFEKS INTO COURT. Applications of this nature are most commonly made upon admis- sions contained in the answer ; but they may be made upon an admission contained in an affidavit, or in any other proceeding in the suit.^ At the hearing of a cause, an application may be made for the payment of a fund into Court without previously giving notice.'' To support an application for the payment of money into Court upon the answer, there must be an admission in the answer of the plaintiff's title as stated in the bill ; and not merely an admission with reference to the case made by the answer.^ An absolute admission of title is not required ; merely such a probability of title as the Court can safely act on;* but if the defendant by his ansM'er merely says he does not know and cannot set forth, as to his belief or otherwise, whether the plaintiff sustains the character he assumes, an order will not be made." The plaintiff will not be allowed to make use of affidavits to sup- ply any defect in the answer : the Yule of the Court being, that the order shall be made upon the defendant's admission alone.^ This rule, however, must be understood as applying to proof of the plaintiff's title : for it has frequently been decided that though the Court will not, upon an application of this sort, allow affidavits to be 'read in support of the plaintiff's title, it will receive affidavits to verify collateral facts. Thus, upon a motion that a purchaser may pay his purchase-money into Court, it will allow affidavits to be read to prove that he has exercised acts of ownership.'' As the Court will not order money into Court where there is no admission of the plaintiff's right, still less will it do so where it is denied by the answer : therefore, if a bill is filed, stating a settled account, and by the answer it is denied that the account is just, the I plaintiff' cannot move that the defendant may pay into Court the 1 Setfni, t)2. - Imac.'y v. Weatheystone, 10 Hare, App. 30. 3 Prifiid/uot V. Huiiir, i i3ea\- 17i; ; see also lSu>.ehetti v. Pciner, S Beav. 98 : 8 Jur. 1086 ; Bothwell V. JiotlweU, 2 S. k S. 217. 4 McHanhi v. IJItchroel; 11 Beav. 73, 77 ; Wliitiiwre v. Tiirquand, IJ. & H. 296. 6 D ble.1.1 V. Flint, 4 il. & 0. ,W ■ ; and see Fiirrer v. Bvti-liiuMii, 3 Y. & C. Ex. 706 ; Edward« v. Fdwardu, 10 Hare, App. 63. 6 Blac)! V. Creiijlitiiii, 2 Moll. 554 ; Ht. Vlrtur v. UciKimux 13 .Sim. 641 , Rim-JwUi v. Power, i Bear. !)8. Bradshaiv v. lU-aMhnii^, 2 Mur. 492 ; Crutchlei/ v. Jeniinitham, if). :>D2 ; see ante. HOW APPLIED FOE. 1821 money on the account so admitted : as he might, if the accomit were admitted to he correct.^ It must also be admitted, that there is a balance actually in the hands of the defendant. ^ It is not, however, necessary, that the actual amount of the balance should be stated. If the admission is contained in a schedule not cast up, the sums may be cast up ; and, on affidavit of the amount of what appears to be due, the order will be made;^ but as, in such cases, the admission only is relied upon, no affidavit can be used in support of the application, except that of a calculator or accountant who examines the schedule, and swears to the amount in the hands of the executor appearing therefrom.* As the application must be founded on an admission, it is neces- sarj^, where the application is founded upon an account appearing in a book, that the book must have been referred to in such a way as to make it part of the admission ; and where the defendant has referred to several books, it will not be sufficient to make the appli- cation upon the casting up of some of the books ; it must be the result of all the books. ^ The indulgence which is allowed to a plaintiff of verifying the amount of the balance admitted will, in certain cases, be extended to the defendant. Thus, where an executor admits, in his answer, that he has received a specific sum belonging to the testator's estate, but adds that he has made payments on account of the estate, the amount of which he does not specify, the Court will allow him to verify the amount of his payments by affidavit, and then will order him to pay the balance into Court. ^ It may be noticed in this place, that in a case before Sir A. Hart,- L.C., in Ireland, the question arose whether the executor was entitled to retain enough to answer the probable accruing expenses 1 v. Bailey, 30 July, 1805, 2 Madd. Ch. Pr. p. 400, 2nd ed. ; p. ^iZ, 3d. ed. ; see also Richard- son v. Bank of England^ 4 M. & C. 165, 177 : but see Doniville v. Solly, 2 Russ. 372, where, althoua^h the plaintiff's title waa denied, he was able to show from the case stated in the answer that he had an interest. 2 In respect to w^hat will be considered as money in the hands of a defendant, see antt. 3 Mills V. Hanson, 8 Ves. 68 ; Quarrell v. Beckford, 14 Ves. 177. 4 Black V. Crel. hO-2. 3 2 Bro. 0. C. 158. ( 1824 ) CHAPTEE XLIV. PAYMENT OF MONEY AND TRANSFER OF STOCK OUT OF COURT. When money has been paid, stock transferred, or specific articlcf? 'ieposited in Court, the decree or order at the original hearing, or upon the further consideration of tlie cause or matter, frequently provides for the payment, transfer, or delivery of the same to the parties then entitled thereto. It, however, often happens that the rights of the parties to the effects in Court, at the time when the decree or order is made, are not such as to enable the Court then to make an order for absolute j)ayment, transfer, or delivery to them. Under such circumstances, where it appears that a certain proportion of the fund in Court, or a precise sum, belongs to any particular fiarty or set of parties, and there is any incumbrance affecting such share, or the interest in it is delayed until the hap- pening of some event ; as, for instance, till the party attains the age of twenty-one, or till the death of a previous tenant for life : the Court will, on the hearing, order the share to be carried over, in trust in the cause or matter, to a separate account : liberty to apply being, *at the same time, given to the parties.^ The effect of carrying over a fund to a separate account is to release it from the general questions in the cause ; and to mark it as beiug subject only to the questions arising upon the particular matter referred to in the heading of the separate account, so that, -in all subsequent dealings with the fund, those jjarties only need be served who are interested in it. Care must, therefore, be taken in the heading of the account : as from it the Court sees to what extent the fund has been severed from the questions in the cause. ^ The mere carrying over of a fund to the separate aceoimt of any person is not, how- 1 A iHe. •1 He JfTDoine, 12 Beav. 209; and see Salmon v. A ndcrson, 9 Beav. 445 : Tlmidieu v. Metcalfe, ib. 495 ; l.ajin'hiaiulrni- v. 'Teissier, 12 Beav. 20B ; Hi- Tillxtum-, '.I Hare, App. Oil : XMe v, Stim, 29 Beav. 4(ii) ; Si'tan, (jij F"r a collection of forms of headings, see 12 Bea\ . 210, n. PAYMENTS AND TRANSFERS OUT OF COURT. 1825 ever, equivalent to a decree declaring such party to be absolutely entitled. Any error may, therefore, be corrected by an original bill ; and it is no{ necessary to file a bill of review, nor to have the decree or order directing the carrying over reheard.^ If the fund has not been dealt with for many years, the Court will not order it to be paid out to the personal representative of the person in whose name it is standing, in the absence of the persons beneficially inter- ested ; ^ and where the fund has passed by the will of the person entitled to it, it will not be paid to the legatee, in the absence of the personal representative of the testator.^ There are some cases in which, although the interest of a party in the fund is not absolute but subject to a contingency, the Court has not directed the fund to be carried to a separate account, but has ordered it to be paid out at once : the contingency being remote, and the parties receiving the money entering into a recognisance to refund it, in the event of the happening of the contingency. This was done in the case of Leng v. Hodges,* where the right of the parties was subject to the contingency of a female who was then of the age of sixty-nine years having children ; and in the case of Brown v. Prinjle,^ a legacy to a woman for life, with remainder to her children, paid out of Court on the petition of the mother and children, the child- ren having attained twenty-one, and the mother being sixty-six years of age. In this case, the fund being small, and the contin- gencies remote, Sir James Wigram, V.C, only ordered the parties to undertake to account for it as the Court should direct, in case of other children being born ; and no recognizances were entered into ; and where the contingency was very remote, the fund has been paid out, without even an undertaking to account for it.^ 1 JSoWe V. Stoic, 2n Beav. 409; ante, and see Ex /ml,: Bn'ach, 10 Jur. N S. 982: 12 \V. R. 769, M. R. ; and Sheppard v. Shephard, 33 Beav. 129. 2 JSdu-ards v. liareey, 9 Jur. N. S 463 : 11 W. R. 330, 51. R. ; and see Loy v. Dueh-ett, C. k P. :\n'\ 3 Se Acker, 11 W. R'. 182, V. C S. 4 Jac. 585 ; see also Fntt,er v. Fraser, ib. .^'80, n., where the ladywas fifty-five, and unmarried ; Dr[/iy V. Galdschmidt, 19 Ves. 56(i; Payne v. Long, cited ib. 5VI ; Webber v. Webber, 1 S. & S. 3il ; Lyddon v. EUiwn, 19 Beav. 665 ; Edwards v. Tuck, 23 Beav. 268 ; Keiinedi/ v. Sedgwu-Jr, 3 K. & J. 640 ; Vidler v. Parrott, 12 W, R. 976, V C. K. Bat it seems that the Court will not tieat a woman as past the ay:e of childbearing until slie is fifty ; although positive medical evidence the t she is past childbearing^ is adduced : Grove,i v. Gnwes, 12 W. R. 45, V. C. W. 5 4 /fare, 124. As to payment out, on presumption of death, see Brnclni v. Whifirld. 14 Sim. 277; Cuthbert v. Piirrier, 2 Phill. 199 ; Lamb v. Orton, 6 Jur. N. S. 61 : 8 W. R. ill, V. C. K. ; Bviui V. Sncrwden, 2 Dr. & Sm. 201 ; Thomas v Thomas, '2 Dr. & Sm. 298. 6 Miles V. Kni^iht, 12 Jur. 68(i, V. C. E. 1826 PAYMENTS AND TRANSFERS OUT OF COURT. Another instance in which the Court used to order money to be carried over to a separate account, occurred when the party entitled to it was a married woman. In such a case, the practice was, not- withstanding her interest in the fund was immediate, for the Court on decree, not to order payment at once, but to direct that the fund be carried to the account of her and her Imsband.^ After the fund had been thus transferred, a petition was presented by the husband and wife, or such u petition was brought on togetlier with the cause on further directions. The present practice, however, is different, and has been stated in a former part of this work. Formerly, whenever a fund had been carried to a separate account, and the title to it was clear, an order for payment might have been obtained by motion;^ but now, the application should be made by petition : ' unless the fund is small, ^ or the application is for payment of the dividends or interest of any stocks, funds, or securities standing to the credit of any cause or matter depending to the separate account of the applicant; in which cases, it may be made by motion.' An order for the payment of- money out of Court will not be made ex jKifte ; the party who has paid it in must be served with notice." And where the purchase-money for lands sold under a mortgagee was paid into Court, it was held that the mortgagor must have notice of any application to pay to the plaintiff amounts found due to him by the Master's report.'^ Where a certain sum of money ordered to be paid to the plaintiff under a decree had, pending a rehearing and appeal, been paid into Court by arrangement between the parties, to obtain a stay of proceedings, in lien of the security required by sub. -sec. 4 of sec. 16 of the Act relating to appeals ; and on the appeal the decree was affirmed only in part, that part directing the payment of the money, being in part reversed by the amount l)eing reduced to a comparatively small sum ; a motion to 1 C'aiiqjbell y. Uanlitiij. 6 Sim. 283 2 Heatlicote v. Kdwarda, Jac. 504. 3 Ganatt v. Kibliick, 5 Beav. 143; Blind School v. Goven. 21 L. .J. Cli. Hi, V. C. Ld. U. .Jmidv. mpleil, ■■'. Jur. N. S. 432, V. C. S. ; but see Oliver v. Hurt, 1 Beav. .583 ; lAn/ord v. Cooie, 6 W, R. 6, V. 0. K. 4 Seton, 157 : J^etty ^ . Prttll, 12 Beav. 170 . and see W iiik warth v. Wiiiknvrth, 32 Beav. 233 : 9 Jur. N. S. 61, where leave way given to make future applications at Chambers. 5 Ord! 197. If the application is for the payment of arrears of dividends exceedin,i{ ,t300, it must be by petition : Joad v. Rvplefy, 3 Jur. K. S 432, V. C. S. This rule, however, is not adhered to. fi Bvllen V. Jtenetfick, 1 Cham. Eep. 213. 7 Sinitli v. Kerr, 3 Grant, BOO. PAYMENTS AND TRANSFERS OUT OF COURT. 1827 pay out the money to the party who had paid it in was granted by the secretary, though strenuously opposed, and his order was con- firmed on appeal to the full Court!^ The petition or notice of motion must be served on all the per- sons appearing to be interested therein.^ In the case, however, of applications where the persons interested were numerous, and, under the circumstances, it must be supposed that they would be informed of what had been done, service upon all has been dis- pensed with.^ Where a fund bequeathed to one for life, with remainder to a class, the members of which, as well as their shares, had been ascertained by the Master, had been carried to a separate account, the Court on petition presented after the death of the tenant for life, directed the transfer of one-ninth of the fund to the person who appeared by the Master's report to be entitled to it, without service of the petition on the persons entitled to the other eight-ninths.* If, in consequence of the heading of an account, a person is properly served with notice of the applica- tion, but the Court considers his appearance unnecessary, he may be disallowed his costs.^ Where the person to whose account the fund has been carried has assigned his, interest, he must, generally, be served with notice of aiiy application by the assignee f and if the assignment is disputed, the Court will refuse to order the fund to be paid without a suit to determine the rights of the parties being instituted.'' Unless, upon the hearing of the application, the title of the applicant to the immediate payment of the fund is made clear by the Master's report, or by the previous orders of the Court, it must be supported by evidence of all the facts necessary to establish tiie title. The same mode of proof is necessary as that required to prove similar facts upon other occasions. Application should also be made to the Registrar for a certificate of the amount of the fund sought to be affected, as well for the purpose of stating cor- re'ctly the description of the fund, as also for the sake of ascer- 1 Lindsav PHroleum Couipain/ v. Hiird, 3 Cham. Rep. 10. ■ i Seton, 63 ; DaWmure v Ogilbrj. 16 Jur. 443, V. C. K. 3 Re Hodges, (:> W, R. 487, V. C. K. ; see also Ec Midland Railway Company, 11 Jur. 1095, M. K. 4 Lambert v. ycwark, 3 De G. ^- S. 40.5, Re Jtist.icex of Comitrii, 19 Bsav. ISS. 6 Briant v. Denii.tt, 4 Drew. .560 : .5 .lur N. S. S63. 7 Waatel! v. tjesli-. 16 Sim. 45;, n. ; Thoriidilic v. Iliiid, 3 De G. & J. 563 : .5 Jur. N. S. S79. 91 1828 PAYMENTS AND TRANSFERS OUT OF COURT. taining whether the fund is affected by any stop order ; and this certificate must be left with the Eegistrar when the order is be- spoken. If the applicant is one of a class among which the fund is divisible, he should also ask that the shares of the others may be carried to their sejDarate accounts, in order to save expense on the occasion of future applications.^ A prospective order for the payment of interest on funds to be subsequently paid into Court may be made ;^ but the Court has refused to make any order dealing prospectively with the purchase money of an estate contracted to be sold, but not paid for.^ The Court will not, in general, order payment out of the prin- cipal or interest of a fund except on the responsibility of the executors, until it has ascertained, by taking the accounts, that the fund is clear.* Where any person is absolutely entitled to the fund, the Court will not, as a general rule, permit the fund, to remain in Com-t, and make au order directing payment of the iiiterest only ;■' but the Court will not direct a trust fund to be paid out to a sole trustee, except on the consent of parties beneficially interested f and where the person entitled was deaf, dumb, and blind, the Court declined to order a transfer of stock into such person's name, but directed the interest to be paid to two persons for the benefit of such per- son : they undertaking so to apply it, and to account as the Com-t should direct." Where an infant domiciled in Prussia was, under the limitations of her mother's marriage settlement, entitled to a sum of 2000L, the Court ordered it to be paid to her father : there being no trustees of the settlement, and it being proved that, according to Prussian Law, he was entitled, in the c apacity of her guardian, to receive and administer, during her nlinority, the pro- perty coming to her under the settlement.* 1 lie Hawke, IS Jur. 33, V. C K. ; see also Me Tillstone, 9 Hare, App. 59. 2 lie Chamberlain, 22 Beav. 286. 3 lie Lowes, 12 W. R. 669, V. C. K. i Abby V Gilford, 11 Beav. 28; see also Digby v. Boycatt, 4 Hare, 444 ; Knight v. Knight, 16 Beav. . 368 ; Re Wright, 16 Beav. 3G7 5 Isaac V. Gompeitz, 1 Ves. J. 44. 6 Me lioberts, 7 Jur. N. S 818 : 9 W. E. 768, V. C. K. ; Grant v. Grant, 6 N. R. 347, M. B. 7 Re Biddulph, 6 De G. & S. 469. 8 Re Brmen. 13 AV. R. 677, V. C. W. PAYMENTS AND TRANSFERS OUT OF COURT. 1829 A report had been made in a suit for the sale of mortgaged pro- perty finding that the plaintiff (the mortgagee) was the only incumbrancer on the property, and that the annual amount due to him was £235 12s. IQd. The property was sold for £261, and the purchase money had been paid into Court. Two years after the date of the report a motion for payment of the whole purchase money out of Court to the plaintiff was granted without a reference to the Master to take a subsequent account, it being clear thatihe interest and the costs of the sale would make the plaintiff's claim larger than the amount of the purchase money paid in.^ Where a defendant refused to consent to the payment out of Court of mortgage money paid in by him, the plaintiff obtained an order for payment out, but at his own costs. ^ Where an Order is made, on an application in an administration suit, for the payment of income to a tenant for life, the costs of all parties must be paid out of the? income.^ The sum of 101. (with- out taxation,) is usually allowed by the Master of the Eolls for the costs of a petition for the payment out of Court of a fund standing to a separate account, and in which no one but the petitioner is interested!"* ' A considerable interval of time frequently occurs, after the hear- ing of a cause, before any person acquires such an interest in the fund in Court as to be entitled to obtain an order for payment. In many cases, therefore, when the period arrives, the cause will have become abated. It seems clear, however, that the mere abatement of the suit will not be considered a reason for refusing to pay money out of Court to persons whose rights to the money arise out ■ of the decree.^ Thus, in Eoundell v. Gurrer,^ where the fund had been carried to the separate account of the plaintiff, and after his death a petition was presented by his personal representative for payment of the fund, his right to which was clear, but there was a doubt whether an order could be made in a cause after an entire abatement by the death of the plaintiff. Lord Eldon, after con- 1 Gilmour v. O'Brien, 1 Cham. Rep. 244. 2 Bernard r. Alley, 2 Cham. Bep. 91. 3 Body V. Watson, 33 Beav. 481 : 10 Jur. N. S. 982. 4 Gover v. Stillwell, 21 Beav. 182 : Seton, 94 ; Morgan <£: Davey, 46. Bnt our Court has no auch practice. 5 Finch v: Lord WinchHsea, 1 Eq. Ca. Ab. 2, pi. 7 ; and see ante. 6 6 Ves. 250 ; see also Lord Shipbrooke v. Lord Hinchingbrook , 13 Yes. 387 ; Beard v. Earl o/ Powis, 2 Ves. S. 399. 1830 PAYMENTS AND TRANSFERS OUT OF COURT. sideration, made the order. In Legarcl v. Hodges,^ a petition was pl-esented in a very old cause,^ and from the title of the petition it appeared that all the plaintiffs and defendants were then dead. By the decree, liberty to apply had been i-es^-ved upon the death of a certain tenant for life : whose death gave the petitioner a right to the fund. Notwithstanding the complete abatement of the cause, Sir Lancelot Shadwell, V. C, in the first instance, directed an inquiry, and afterwards made an order for the payment of the fund out of Court. The mere dismissal of the bill also is not a reason for refusing to pay the fund out of Court to the persons entitled f and where a sum has been paid into Court by the plaintiff, to abide the result of certain proceedings at law sought to be restrained by the suit, it will not be kept in Court, after the dismissal of the bill with costs, for the purpose of answering the defendant's costs.* Where there are several persons entitled for life in succession to a fund in Court, the Court usually directs the interest to be paid to the first tenant during his life, and a further order must be obtained on his death f but where a husband and his wife are so entitled, payment will be directed to them in succession, and the jDayment will be contintied to the survivor, on proof by affidavit to tht^ Accountant-General of the death of the other. ^ In the case, also, of a corporation sale, the interest will be ordered to be paid to the holder of the office for the time being. ^ Payment of interest will also be directed to the trustees of charities and their successors ; and if trustees are more than two in number, it will be directed to be paid to them, or any two of them f and if there are two only, it will be ordered to be paid to them, or either of them f and this is a convenient form of 1 v. C. of England, 2G July, I a44, ez relatione Mr. Ti-ipp. 2 Rei»orted nn the beariu;;-, 4 Bru. C. 0. 4"21. 3 Wright v Mitchell, 18 Ves. 293 ; Taylor v. Waters,, 1 .M. & U 2e8, 271. 4 Flohkton v. J^eaie, HW. R. 7»'.), V. C. W.« 5 Scton,70; hat see Jte JJ re at, 8 W. R. 270, .\[. R., where the order was extended to a successive tenant for life. 6 JicHov. 15 Jur. 206. V C. K. B. ,. „ , r, 7 Seton 70. For form of order, see tb. liS, No. 3 ; see also Attorne,if -General v. Era-ndreth, 1 x. c K. 88, 91 ; Grcenough v. Gaskell, ib. 98, 101 ; Flirjht v. RiihiiiMiH, 8 Beav. 22. 33 ; S Jur. 888 ; Reerc v. Trye, 9 Beav. 31' ; Galley v. Richards, lO'Beav. 401 ; Combe v. Corporation of London, 1 Y. & O. C. C. 631 : 6 Jur. 571 ; Clagett v. Phillips, 2 Y. '. II Beav. 134 : 11 Jur. 721. 6 Attorney-General v. Berkeley, 2 J. & W. 291, 294 ; Revnell v. Sprue, 10 Beav. 51, 55 : Warde v Warde, 3 McN. & G. 365 : 15 Jur. 769. PRODUCTION OF DOCUMENTS. 1857 defence;^ but a mere claimant is not entitled to the production of cases or opinions taken by the trustee for the purpose of enabling him to choose between different classes of claimants, under the trust instrument.'- The privilege also extends to communications between the solicitor of the party and a third person, which refer to the subject-matter in dispute, and are written in anticipation of or pending the .suit f and also to communications between the party or his solicitor and an unprofessional agent, if the circumstances of the case have rendered the employment of the agent necessary,* and to all notes and observations of counsel on their briefs ; but the briefs themselves, so far as they consist of matter which is jyublici juris, and counsel's endorsement or note of any order made by the Court, are not privileged." f In order to avail himself of this objection, the party objecting must distinctly swear that he belieres the communications to be privileged ; and it is not sufficient for him to say that he is advised, and insists that they are so.'^ Where a solicitor is charged with fi-aud, the privilege does not attach to documents in his possession relating to the subject-matter ■ of the suit f and where a solicitor was charged with having been a party to a fraud committed by a deceased client, of whom there was no personal representative, he was ordered to produce all docu- ments relating to the transaction, whether his own or those of his deceased client.* A party may also object to the production of documents on the ground that their production would tend to involve him in a crimi- nal charge ;^ or to subject him to a penalty or forfeiture.^" Objections 1 Wynne v. Humberston, 27 Beav. 421 : 5 Jul". N. S. 5 ; and see Woods v. Woods, 4 Hare, 83, 86 ; 9 Jur. 615 ; Brown v. Oakshott, 12 Beav. 2.52 ; Devaynes v. Robinson^ 20 Beav. 42 ; Talbot v. Marshfield, 13 W. E. 885, V. C. K. ; and also Tv. the power of sequestrators to weize documents ordered to be deposited, see nnt'; ; and as to enforcing an affidavit as to documents, sec ante. •2 Lord Moriiingtihi v. Eeane, i W. It. r!i:i, V. C. W 3 Fisken v. Sin Uh, '1 Cham. Rep. 401. ( 1864 ) CHAPTER XLVI. SPECIAL CASE. A special case is a mode of proceeding by means of which per- sons interested in questions cognisable in the Court of Chancery may, upon a statement of facts, obtain the opinion and direction of the Court, without any consequential relief. This form of pro- cedure is entirely of statutory origin ; ^ and was at first of great utility ; but, in consequence of the changes which have been sub- sequently introduced into the general practice of the Court, its utility has been much diminished. Our Statute, 28 Vic, ch. 17, sec. 1, passed in 1865, declares that " The Court of Chancery in Upper Canada shall have the same jurisdiction as the Court of Chancery in England has, in regard to leases and sales of settled estates, and in regard to enabling minors, with the approbation of the Court, to make binding settle- ments of their real and personal estate on marriage, and in regard to questions submitted for the opinion of the Court in the form of special cases on the part of such persons, as may by them- selves, their committees or guardians, or otherwise concur therein." The English statute, therefore, just referred to, 13 and 14, Vic. ch. 35, so far as it relates to the jurisdiction and powers of the Court as to the subjects mentioned in our statute, is virtually in force here ; and the English oases decided on it will be applicable here. The Act provides, that persons interested, or claiming to be interested, in any question cognisable in the Court, as to the con- struction of any Act of Parliament, will, deed, or other instrument in writing, or any article, clause, matter or thing therein contained, 1 13 it 14 \ iu. uh. 35, SPECIAL CASE. 1865 or as to the title or evidence of title to any real or personal estate contracted to be sold or otherwise dealt with, or as to the parties to or the form of any deed or mstrument for carrying any such contract into effect, or as to any other matter falling within the original jurisdiction of the Court as a Court of Equity, or made subject to the jurisdiction or authority of the Court by any statute : not being one of the statutes relating to banki'upts : and including among such persons all lunatics,^ married women, and infants, in the manner and under the restrictions in the Act contained-: may concur in stating such question in the form of a special case for the opinion of the Court ; and that all executors, -administrators and trustees may concur in such case.^ The committee of the estate of a lunatic may, with the autho- rity of the Lord Chancellor,^ concur in his own name, and in the name and on behalf of the lunatic* A husband may concur in big own and his wife's name, where she has no interest distinct from him ; and where slie has a distinct interest, she may concur in her own right, if her husband also concurs :^ but then it must be stated, in the special case, that she concurs in her own right : ® and if she is a plaintiff and her husband is a defendant, a next friend must be named.' The guardian^ of au infant may, unless he has an interest adverse to the infant, concur in the name and on behalf of the infant.^ The Court may, by order t6 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, appoint any person shown by affidavit to be a lit person, and to have no interest adverse to the interest of the lunatic or infant, to be the special guardian of such lunatic or infant, for the purpose of con- curring in such case in the name and on behalf of the lunatic or infant, and the person so appointed may lawfully so concur : the 1 This teiTil, as used in the Act, includes idiots, and pei"Sons of unsound mind, and whether found such by inquisition or not : 13 & 14 Vic, sec. 34. 2 Ibid., sec. 1. 3 Or Lords Justices : see 14 & 15 Vic. oh. 83 : 15 & IB Vic. oh. 87, sec. 16. 4 13 (k 14 Vic. ch. 35, sec. 2. 6 Ibid., sec. 3. 6 Ibid., sec. 9. 7 Ibid., sec. 7. 5 This term, as used in the Act, includes the father or testamentary guardian, or guardian appointed by the Court of Chancery (not being a special guardian appointed under the Act) : Ibid., sec. 34; £7(18 V. Guitton, 18 L. T. 269, V. C. P. 9 13 & 14 Vic. ch. 35, sec. 4. 1866 SPECIAL CASE. Court may, however, require notice of such application to be given to such person, if any, as the Court shall think fit ;^,and in the case of infants, unless notice is given of such application to the infant's guardian, the order may be discharged on motion or peti- tion, and a new order made.^ It must also be stated in the special case how the guardian, or special guardian, of an infant or lunatic was constituted.'^ The application for the appointment of a special guardian must be made on motion in Court : and not by petition f nor in cham- bers f and must be supported by an affidavit, entitled in the matter of the infant or lunatic and of the Act," showing the fitness of the proposed guardian, and that he has no interest adverse to the infant or lunatic." A next friend is not required for an infant.* As a general rule, all parties interested in the questions submitted to the Court must be parties to the special case : the practice in this respect being the same as in the case of suits ; ^ and it seems that the exceptions to, or modifications of, this general rule, intro- duced by the Chancery Amendment Act,^" apply to special cases.^^ Thus, where a class was sufficiently represented, a special case was entertained^^ in the absence of a member of it who was out of the jm'isdiction ;^^ and under similar circumstances, where some of the members of the class had died intestate, the executors of their father were appointed " to represent their estates for the purposes of the proceedings.^^ It has been held that trustees should be parties to the case.-'^'' It seems that the form of suit which, as we have seen, is commonly adopted where the plaintiff is one of a large class in the same inter- 1 13 i 14 Vic. uh. 35, sec. 5. 2 Ihid,, sec. 6. 3 Ihid., sec. 0. 4 Re, Good/ellow, 1 Eq. Rep. 191, V. (J. W. 6 Thornhill v. Copleston, 10 Hare, App. 67. For fonn of order on motion, see Seton, 33. 6 Star V. ^eivbery, 20 Beav. 14 ; but not in the special case : it being not yet filed, ib. ; and see Mad- dison V. Skein, 6 L. T. N. K. 20, V. C. W., where the title was. allowed to be amended. 7 Exparte Craig, 15 Jur. 7Ui, V. C. K. B. ; Ellis w. GuMun, IS L. T. 269, V. 0. P. 8 Ex parte Craig, ubi sup. !» See 13 & 14 Vic. ch. 35, see. 32. 10 16 & 16 Vic. ch. 86, see. 42 ; sec. 61; and sec. 52. 11 Swallmc y. Binns, 9 Hare, App. 47 : 17 Jur. 296 ; H'ilsuii v. Whatelcy, 1 J. & H. 331 ; 7 Jur. N. S. 90S ; Re Brown, 29 Beav. 401 : 7 Jur. N. S. C60 ; see, however, Entwistle v. Cannon, iVI. B. 450, V. C. K 12 Under 15 & iti Vic. ch. 86, sec. 51. 13 lie Brown, ubi nap. ; but see Entwistle v. Can nun, ubi sup. 14 Under 15 & 16 Vic. ch. 86, sec. 44. 15 Swalloxo V. Binns, ubi sup. . „ i , , n 16 Vorley v. lUchardson, 8 De G. M. & G. 126 : 2 Jur. N, S. 3U2, overruhng Darby v. Darby, 18 Beav. 412. SPECIAL CASE. 1867 est as himself, namely, suing on behalf of himself and the others of the class, ^ cannot be adopted in special cases : such others not being before the Court, and, therefore, not bound by the proceed- ings.^ A special case must be entitled as a cause between some or one of the parties interested, or claiming to be interested, as plaintiffs or plaintiff, and the others or other of them as defendants or defen- dant ; and in the title to such case, lunatics and infants must be described as such, and their committees, guardians, or special guardians named ; and where a married woman is named as a plaintiff and her husband as a defendant, a next friend of such married woman must be named in the title. ^ The case should state concisely such facts and documents as are necessary to enable the Court to decide the question raised thereby.* The draft ease is usually prepared by the counsel for the plain- tiff, and is submitted to the solicitor of the defendants for the approval of their counsel. When finally approved, the draft must be signed by counsel for all parties. ° A copy of the case (including counsel's signature) must then be made on paper of the same des- cription and size as that on which bills are printed:^ and under- written with the name and place of business of the plaintifi''s solicitor, and of his agent, if any, or with the name and place of residence of the plaintiff" where he acts in person, and, in either case, with the address for service, if any.^ The engrossment is filed at the Eecord and Writ Clerk's Office, in the same manner as a bill is filed ; ** and notice of filing should be given, on the same day, to the solicitors of the defendants. The plaintiff must take an office- copy of the special case ; but the defendants need not do so.* The defendants must enter their appearances to the sj)ecial case, in the same manner as defendants appear to bills; "but no pro- ceeding can be taken to enforce such appearance ; nor can an 2 Lee v'. Head, 1 K. & J. 620 : 1 Jur. N. S. 722. 3 13 & 14 Vic ch. 36, sec. 7. 4 Ibid., sec. 8; see Bulkeley v. Hope, S De G. M. & G. 36. 5 13 & 14 Vic. ch. 35, sec. 10. One counsel may, it seems, sign for uU parties : JUx parte Craig, 16 Jur. 762, V. C. K. B. ; Stapleton v. Stapleton, 17 L. T. 16, V. C. Ld. C. 6 Ord. 16 March, 1860, r. 16. 7 13 & 14 Vic. ch. 35, sec. 32. 8 IB & 14 Vic. oh. 35, sec. 10. 9 Jbid. 10 Ibid. 1868 j,^ SPECIAL CASE. appearance be entered for a defendant at the instance of the plain- tifif.i The filing of a special case, and the entering of appearances thereto by the persons named as defendants is to be taken to be a lis pendens, and may be registered, in like manner as any other lis pendens in a Court of Equity may be registered : but, until so registered, is not to bind a purchaser or mortgagee without express notice.^ Before the special case is set down for hearing, it may be amended at any time, under an order to amend : which must be obtained on motion of course by consent of all parties ; ^ but after it is set down, special leave of the Court is necessary.* Under an order of course the case may be amended in any respect, as the parties may be advised : as all parties, by their counsel, must approve the amendments. The rules of practice, however will not allow the name of the plaintiff's solicitor to be altered under a common order to amend ; nor, it seems, the name of a defendant to be struck out, unless the order expressly so directs, and provision is made for his costs. ^ The draft of the case as amended must be signed by counsel for all parties : ^ and if the amendments do not extend in any one place to 180 words, the Record and Writ Clerk will insert the amendments in the record, on the draft amended case being left with him, together with ap?-«cipe for the amendment ;'' but if the amendments exceed this limit, a new engrossment must be filed.' The order to amend must be produced at the time the draft is left for amendment, or the new engrossment filed; if the record is merely altered, the plaintiff's office-copy will be amended, without charge, on being left at the Eecord and Writ Clerk's Office ; but where a new engrossment is filed, he must take an ofiice-copy there- of.« Where a special case is amended after the appearance of a defen- dant, it seems an appearance to the amended ease must be entered by him.i" 1 BraithvaW-'s Pr. :i:i(). 2 13 & 14 Vic. ch. 35, see. 17. 3 Brait/iwaiie's Pr. 315. 4 Braithwaite' s Pr. 315 : and see post. 6 Ibid 315 " ^> '1"^- T Braithicaite's'Pv.ZlQ. % Ibid. 9 Ibid 316 1 Thiilethwaite v. Oarnier, 6 De G. & S. 73 : 16 Jur. 57 ; Braithwaite' a Pr. 330 SPECIAL CASE. 1869 Where a special case has abated, it may be revived in the same manner as a suit commenced by bill.^ After a special case is filed, and the defendants have appearpcl, all the parties are subject to the jurisdiction of the Court in the same manner as if the plaintiff had filed a bill against the parties named as defendants, and the defendants liad appeared to such bill; and upon the special case being filed and appearance entered, all parties thereto, other than married women, infants and lunatics, are, for the purposes of the special ease, bound by the statements therein : and married women, infants and lunatics, parties thereto, are, for the purposes of the special case, bound by the statements therein, vfhen, and not before, leave has been given by the Court to set it down for hearing."^ When all the defendants have appeared, the special case may be set down for hearing :' unless there is a married woman, infant or lunatic, a party : for then application must be made to the Court, by motion, for leave to set the case down ; and of which motion, notice must be given to every party to the case in whom, as executor, administrator or trustee, any property in question therein is or is alleged to be vested in trust for the married woman, infant or lunatic ; and also if the application is not made by or on behalf of the married woman, infant or lunatic, to the married woman and her^ husband, or to the infant, or the lunatic and his committee, if any, as the case may be ; and upon the hearing of the motion the Court may give leave to set down the case, if it is of opinion that it is proper that the question raised should be deter- mined upon a special case, and is satisfied by affidavit or other sufficient evidence that the statements contained therein, so far as the same affect the interest of the married woman, infant or luna- tic, are~true,* but otherwise may refuse such application; but if the Com't, upon hearing the application, is of opinion that it is proper that the question raised should be determined upon the special case, but is not satisfied that tlie statements contained therein, so far as they affect the interest of the married woman, 1 mson V. Whateley, IJ. & H. 331 : 7 Jur. N. S. 908 ; and see ante. 2 18 & 14 Vic. ch. 35, sec. 11. 3 Ibid., sec. 12. 4 The Record and Writ Clerk's certificate that the special case ha« been duly filed, and that appear- ances have been entered for all the defendants, is also required : Bra itkwaite-'s Pr. 436, 437. 1870 , SPECIAL CASE. infant or lunatic, are true, it may direct inquiries in chambers, and upon further apphcation being made, by motion, upon the inquiries being answered, the Court may give or refuse leave to set down the special case.^ The application for leave to set down a special case cannot, it seems, be made in Chambers.^ The special case is set down by the Registrar. If all parties are not sui juris, he will require for this purpose the order giving leave to set the case down ; but if all parties are sui juris, he will set the case down, upon production of the Record and Writ Clerk's certificate that the case is fit to be set down for hearing, and upon such certificate being endorsed by the solicitor with a memorandum that all parties are swi juris.^ The special case is set down to be heard before the Court in the usual way ; * but it may, by consent of all parties, be afterwards set down to be heard before the Court of Appeal in the first instance by permission of that Court/ A copy of the special case, and of any material documents not sufficiently set out therein, should be left, before the hearing, with the Judges by whom the case is to be heard." "Where, after a special case had been set down, an infant tenant in tail was born, the Court, on ex parte motion, discharged the order which had been made for setting it down, and gave leave to amend by making the infant a party ; and expressed an opinion that fresh appearances must be entered for all the defendants, and a new order made for setting it down : when the amended case might be ordered to take the place of the original case in the paper.' Where also one of the parties to the special case died after it had been set down, leave was given to amend the case,, by mak- ing his representatives parties.* 1 13 & 14 Vic. ch. 35, sec. 13. For form of order to set down the cage, see Seton, 33. The motion must be mentioned to the Court ; Sidebotham v. Watson, I W. R. 229, V. C. W. ■2 Sidebotfiam v. Watson, ubi sup. 3 Reg. Kegul. 16 March, 1860, r. ?; Braithwaite' s Pr. 436, 437. 4 Ante. 5 Palmer v. Simmonds, 1 W. R. 122, V. C. K. ; Tassell v. Smith, 2 De G. & J. 713 ; 4 Jur. N. S. 1090; Uortimore v, Mortimore, 4 De G. & J. 472 ; Htime v. Richardson, 8 Jur. N. S. 686 ; 10 W. E. 628, L.J J. 6 Counsel's brief will ordinarily consist of the like papers, accompanied by such observations as may be deemed necessary. An infant should appear by separate counsel, notwithstandins- the same solicitor is acting: for all parties : Seton, 33, citing Wright v. Woodham, 17 L. T. 293, V. C. T. 7 Thistlethwaite v. Oamier, 5 De G. & S. 78 : 16 Jur. 67. 8 A nsworth v. Alman^ 14 Beav. 597. SPECIAL CASE. 1871 It seems, however, that the correct practice in such a case, is to revive the case.^ Leave has been given, at the hearing, to amend the special case, by altering the form of the question, and the opinion of the Court given as on the amended case, without postponement.^ Upon the hearing of the special case, the Court may refer to the whole contents of the documents therein stated ; and may draw, from the facts and documents stated, any inference which the Court might have drawn from them if proved in a cause ; '^ and it may determine the questions raised or any of them, and by decree declare its opinion thereon, and, so far as the case admits, upon the rights involved, without proceeding to administer any relief consequent upon such declaration ; and every such declaration has the same force and effect as such declaration would have had, and is 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 ; but, if, upon the hearing of the special case, the Court is of opinion that the questions raised or any of them cannot properly be decided upon the special case, the Court may refuse to decide the same.* Where the facts and questions stated on the special case did not enable the Court to determine the rights of the parties, it refused to make any order ; ^ and it has been observed by Lord St. Leonards, L. C, that, the Court is not bound to answer every question the parties may think fit to put.^ Where, however, a material fact was accidently omitted in the statements of the case, but it appeared to have been recognised by all parties, the circumstances, showing that it had been so recognised, were recited in the order.'' Where, in the case, a fact was stated " to be believed," the Court directed the case to stand over to be amended by stating the facts upon 1 Under 16 & 16 Vic. oh. 86, sec 52 ; Wilson v. Whateley, IJ. & H. 331 : 7 Jur. N. S. 908. 2 Bell V. Cade, 2 J. & H. 122. 8 13 & 14 Vic. oil. 35, sec. 8. 4 13 & 14 Vic. eh. 35, sec. 14. This section contains a proviso, enabling the Court to send a case for the opinion of a Court of Law ; but it is presumed that this power is abolished by the 15 & 16 Vic. ch. 86, sec. 61. For forms of decrees, see Seton, 30, 34. 5 Bulkeley v. Hirpe, 8 De G. M. & G. 36. 6 Viscoimt Barrington v. Liddell, 2 De G. M. & (i. 480, 606 ; and see Bailey v. Collett, 23 L. J. Ch. 230, M. R. For fomi of decree, where the Court declines to answer one of the questions, see Setoii, 34. 7 Lane v. Dehenham, 17 Jur. 1005, V. C. W. ; where all parties to the c:i.se appc-Hi-. however, to have been sui yurin, and consented. 1872 SPECIAL CASE. which the belief was founded : Sir G. J. Turner, V. C, observing, that the Court could not act on inferences drawn by the parties : nor could it direct an inquiry on a special case ; but that, when the evidence was doubtfal, the special case must state all the facts upon the subject which could be ascertained, and state, and verify (if necessary) by affidavit, that no further evidence could be given ; and upon that allegation and proof, it must be left to the Court to judge of the result of the statement.^ The Court has no jurisdiction to declare future rights, on special cases ; ^ and it has accordingly repeatedly refused to do so.' The decree or order on a special case is drawn up and passed by the Eegistrar, in the usual way ; * and may be enrolled in like manner as decrees in suits by bill.* All decrees and orders under the Act are subject to rehearing, appeal, and review, and may be discharged and varied, in like manner as decrees and orders of the Court made in suits instituted by bill ; ^ and where any of the j^arties are desirous to have a special case reheard, or to appeal from the decision thereon, the Court may, upon application for that purpose, either at the time of the decree being made Vic. ch. 6), p. 6 ; Foreign Process (2 & 3 Will. IV. ch. 33; 4 & 6 WilL IV. ch. 82), p. 407 > Infants' Marriage Settlements (18 & 19 Vic. ch. 43), p. 1234 ; Judgments (1 & 2 Vic. ch. 110 ; 2 & 3 Vic. ch. 11 ; 3 & 4 Vic. ch. 82 ; 18 & 19 Vie. ch. 16 ; 23 & 24 Vic. ch. 38 ; 27 & 28 Vic. oh. 112), p. 929, et seq. ; Marriages (4 Geo. IV. ch. 76 ; 19 & 20 Vic. ch. 119), pp. 10, 106, 1229 ; Petitions of Eight (23 & 24 Vic. ch. 34), p. 130 ; Solicitors (6 i 7 Vic. ch. 73 ; 23 & 24 Vic. ch. 127), p. 1702, et seq. ; Special Cases (13 * 14 Vic, ch. 35), p. 1681, *t seq.; Stannaries Decrees Enforcement (18 8l 19 Vic. ch. 32), p. 964. 1882 THE STATUTORY JURISDICTION OF THE COURT^ powers and remedies incident to the original jurisdiction are called into operation, and the means by which orders under statutes are made : namely, that, in the former case, it is necessary, in almost all cases, that a bill should be filed, or a suit otherwise regularly in- stituted, before any relief can be obtained : whereas, in the latter case, it is usual for the Act of Parliament providing the additional remedy also to enact, that it may be obtained in a summary man- ner upon petition, motion, or summons.^ In all such cases, the application should be entitled in the matter of the Act under which it is made ; ^ and also in the matter of the particular trust or other subject to which it has reference.* Where the applicAtion is directed by the act to be made to the Lord Chancellor, it may be, and usually is in the first place heard by one of the Vice-Chancellors ; * but it seems it cannot be made to the Master of the Rolls, unless he is named in the act.^ The Act itself frequently points out the precise relief which the applicant is ultimately entitled to receive. It was formerly usual for the statute to direct that the matter might be heard upon affi- davit ; ^ but, owing to the changes in the system of taking evidence, this is no longer necessary ; and the evidence in support of the ap- plication is adduced in the usual manner. Orders made under the statutory jurisdiction are enforced in the same manner as orders made in a suit which has been regularly in- stitufced.'^ Statutes relating to Charities. Generally. — In England before any suit, petition, or other proceed- ing (not being an application in which any person claims any property or seeks any relief adversely to any charity, and not being an applica- tion, in any suit or matter actually pending at the time the applica- tion is made), for obtaining any relief, order, or direction concerning 1 See ante. 2 Re Law, 4 Beav 509, 610. 3 l8t Rep. Eng. & Ir. Com., App. 73. Where the jurisdiction is conferred by the statute, and the property sought to be affected forms the subject-matter of a suit or other proceeding, the appli- cation should be entitled both under the Act, and in such suit or proceeding. 4 Re Carew, 8 Beav. 128; Re Howard, ib. 424, 426 ; Re Taylor 10 Sim. 291. 6 Re Scott, 12 Beav. 361, 363 ; Ueyriek v. Lawa, 23 Beav. 449. 6 See Ex parte Oreenhouse, 1 Swanst. 60. 7 See ante, and Ord. ZXIX. STATUTES RELATING TO CHARITIES. 1883 ot relating to any charity, or the estate, funds, property or income thereof, shall be commenced, presented or taken by any person whomsoever (other than the Attorney-General,) he must obtain from the Board of Charity Commissioners an order or certificate, signed by their secretary, authorising or directing such proceeding to be taken : and no proceeding for obtaining any such relief, order, or direction as aforesaid will be entertained or proceeded with by the Court of Chancery, or by any Court or Judge, except upon and in conformity with an order or certificate of the said Board.^ This provision applies to applications made to the Court, although such applications are made under the authority of a special Act of Par- liament.^ It is not necessary to show that the Commissioners ap- prove of the particular application ; but only tlfat it is made with their sanction.^ The sanction of the Commissioners is not, it seems, required, where a fund belonging to a charity has been paid into Court under the Trustee Relief Act ; * or the Lauds Clauses Consolidation Act ; ° nor was it required where an application was made to deal, for the purposes of a college, with an estate, of which part belonged to a school and the residue to the college.^ Where a final order has been made, and a scheme settled, the matter is no longer pending within the meaning of the provision above stated ; and the sanction of the Commissioners must be obtained.^ The Statute 43 Eliz. ch. 4, commonly called the Statute of Chari- table Uses, recites that " lands, tenements, rents, annuities, profits hereditaments, goods, chattels, money, and stocks of money, have been heretofore given, limited, appointed and assigned, as well by the Queen's most excellent Majesty and her most noble progenitors, 1 Charitable Trusts Act, 1853 (18 & 17 Vic. ch. 137), ss. 17, 18 ; Me Litter's Hospital, 6 De G. M. & G. 184 ; Jlc Markwell, 17 Beav. 618 ; Re London, Brighton d- South Coast Railway Company, IS Beav. 608 ; and see Re Cheshunt College, 1 Jur. N. S. 995, V. C. W, ; Be Skeetes, ib. 1037, V. 0. K. ; Re St. Giles and St. George,, Bloomsbury, 26 Beav. 313 : 4 Jur. N. S. 297 ; Re Willenkall Chapel, 2 Dr. & Sm. 467, 468. 2 Re Bingley Sehool, 2 Drew. 283 : 18 Jur. 668 : and see Me Watford Burial Board, 2 Jur. N. S. 1045, V. C. W. 3 Me Watford Burial Board, ubi sup. 4 Re St. Giles and St. George, Bloomsbury, ubi sup. ; but see Re Markwell, ubi sup. 5 Re Listers Hospital, ubi sup.; but see J?e Cheshunt College, Me London, Brighton tb South Coast Railway Company, and Re Skeetes, vhi sup.; Me Feversham Charities, 10 W. R. 201, V C. W 6 Re Meyriek, 1 Jur. N. S. 438, V. C. K. 7 Re Ford's Charity, 3 Drew. 324 ; Re Jarvis' Charity, 1 Dr. & Sm. 97 : 6 Jur. N. S. 724, 1884 THE STATUTORY JURISDICTION OF THE COURT. as well by sundry other well-disposed persons : some for the reUef of aged, impotent, and poor people; some for maintenance of sick and maimed soldiers and mariners, schools of learning, free schools, and scholars in universities ; some for the repair of bridges, ports, havens, causeways, churches, sea-banks, and highways ; some for education and preferment of orphans ; some for or towards relief, stock, or maintenance for houses of correction ; some for marriages of poor maids ; some for supportation, aid, and help of young trades- men, handicraftsmen, and persons decayed ; and others for relief or redemption of prisoners or captives, and for aid or ease of any poor inhabitants, concerning payments of fifteens, setting out of soldiers and other taxes : which lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money, and stocks of money, never- theless have not been employed according to the charitable intent of the givers and founders thereof by reason of frauds, breaches of trust, and neghgence in those that should pay, deliver, and employ the same." This statute has become obsolete ; ^ but the recital above set out is still important, inasmuch as the Court has reference to it, in de- ciding what is to be deemed a charitable purpose : for such purpose must be either one of those purposes denominated charitable in the above statute ; or one which the Court construes to be charitable, by analogy, to those mentioned in that statute.^ Sir Saonuel Romilly's Act. — When the statute of Elizabeth fell into disuse, the only mode by which any remedy could be obtained in Chancery for the abuse of a charity was by way of informa- tion.^ Under these circumstances, the statute usually called Sir Samuel Romilly's Act was passed. By that Act it is provided, that in every case of a breach of any trust or supposed breach of any trust created for charitable purposes, or whenever the direction or order of a Court of Equity shall be deemed necessary for the administra- tion of any trust for charitable purposes, it shall be lawful for the Lord Chancellor, Lord Keeper, or Lords Commissioners for the 1 JKx parte E irkby Rav&nsworth Hoapital, 15 Ves. 305 ; Corporation of Ludlow v. GrienhoUK, 1 Bligh, N. S. 17, 6S ; and for a detailed account of the effect of the statute and the decisions under it, see Duke's Law of Charitable Uses ; Shelford on Mortmain, p. 276, et ieq, ; and see Tudot'i Charitable Trusts, and Finlanon'a Charitable Trusts Acts. 3 Kendall v Granger, 6 Beav. 300, 302 : 6 Jur. 919 ; Attorney-General v, Corporatiiyn of Shrawshury, 6 Beav. 220, 229 ; 7 Jur. 757. 3 A.nte. STATUTES RELATING TO CHAEITIES. 1885 custody of the Great Seal, or Master of the Rolls for the time being, upon the petition of any two or more persons stating such com- plaint, and praying such relief as the nature of the case may require, to make such order therein, and with respect to the costs of such applications, as to him or them shall seem just ; and that such order shall be final and conclusive, unless the party or parties who shall think himself or themselves aggrieved thereby, shall, within two years from the time when such order shall have been passed and entered, appeal from such decision to the House of Lords.i By a subsequent Act, the Attorney-General, acting ex officio, is empowered to make application, by petition, to the Court of Chancery, with respect to any charity, under the provisions of Sir Samuel Romilly'a Act, or under the provisions of any Act or Acts passed, or to be passed, authorising the application to the Court by petition, accord- ing to the provisions of that Act.^ It has been held that the Court though it has jurisdiction, ought to consider, in all cases, whether it is fit to exercise that jurisdic- tion, or to put the partj'' to file an information ;^ and that, in cases of breach of trust, the jurisdiction ought to be confined to the simple case of abuse of a clear trust, not involving any question beyond the question of such abuse, and particularly not involving the interest of persons to whom abuse of trust could not be im- puted.* The Court has no power, under the Act, to repair a previous misapplication of trust funds. ^ The Act has been held not to apply to cases of constructive trusts;® or where difl[erent persons claim the trust property adversely to each other,^ and it is sought to obtain the decision of the Court as to which of them is entitled to the benefit of the charity f or where, although the object of the petition was a scheme for the management of the property, it appeared that there was a 1 52 Geo. III. ch. 101, sec. 1. 2 Charitable Trusts Act, 1853 (16 & 17 Vic. ch. 137), sec. 43. 3 Ex ■parte Rees, 3 V. & B, 10 ; and see Re Dean Clarke's Charity, 8 Sim. 34, 42. 4 Corporation of Ludlow v. Greenhouse, 1 Bli^h, N. S. 17 : Ld. Red. 19 ; Ex parte Skinner, 2 Mer. 453 ; aud see cases collected, 14 Beav. 120, n. ; Re Manchester New College, 16 Beav. 610 ; 17 Jur. 540. 5 Re Ball's Charity, 14 Beav, 115 ; and see cases collected, ih. 120, u. f Ex parte Brown, G. Coop. 295. 7 Ex parte Rees ; and Re Dean Clarke's Charity, ubi sap. ; Re West Retford Church Lands, 10 Sim 101, 109 : 3 Jur. 501. 8 Re Dean Clarke's Charity, uii sup.; and see Attorney-General v. Bishop of Worcester, 9 Hare 328 : 16 Jur. 3. 1886 THE STATUTORY JURISDICTION OF THE COURT. dispute as to the persons in whom the legal estate was vested.^ It has also been decided, that the Court had no jurisdiction to make an order upon petition, transferring the funds of a dispensary to a hospital, and amalgamating the two institutions.^ Where the object of the petition is the internal regulation of a charity, an application may be made under the statute ; ^ but if there is a visitor, and the matter concerning which the interference of the Court is sought belongs exclusively to his cognizance, then the complaint must be addressed to him, and no remedy can be obtained in the Court of Chancery.* It has been held that the Court has jurisdiction under the Act : where the point to be decided is simply a question of law, depend- ing on the construction of a particular instrument f where the objects of the charity have no distinct interests, and the Attorney- General, therefore, properly represents them all, and where, although there may be distinct interests, no substantial question of title can arise between the several objects of the charities f where there are no specific directions as to the application of the trust property, or it can not be advantageously applied in the execution of existing trusts ;^ where it is sought to alter a scheme, which has been settled by a decree, and which might have been altered on an information ;* and where the question is as to the site of the charity.^ The Court may also, under the Act, declare the proportions in which different charitable objects are entitled to the funds j^" and may, where it appears that it will be for the benefit of the charity, direct a sale of part of the estates belonging to it." 1 Re Phillipotts Charity, 8 Sim. 381, 389 ; sec also Re Welt Retford Church Lands, 10 Sim. 101, 109 : 3 Jur. 501. ■2 Re Reading Dispensary, 10 Sim. 118, 121 : 3 Jur. 697. 3 Me Shrewsbury School, 1 McN. & G. 324, 331 : 14 Jur. 269 ; Re Manchester Xew College 16 Be»v. 4 Attorncv-General\' Clare Hall, 3 Atk. 674 ; Ux parte Berkhampstead Free School, 2 V. & B. 134, 144 • Thomson V. University of London, 10 Jur. N. S. 669 : 12 W. E. 733, V. C. K. 5 Be JTvton Warren, 1 M. & K. 410, 416. 6 Attorney-General v. Bishop of Worceeter, 9 Hare, 328 : 16 Jur. 3 ; Re Manchester College, ubi tup. 7 Re Shrewsbury School, ubi sup. . 8 Attorney-GeJieral v. Bishop of Worcester, ucr sup. 9 Re Manchester yew College, ubi sup. „ . j ,, t, 10 Re Ball's Charity, 14 Beav. 116 : 16 Jur. 940 ; and see cases collected, 14 Beav. 120, n. 11 Re Parkes' Charity, 12 Sim. 329, 332 ; Re Overseers of Ecclesall, 16Beav, 297 ; Re AshtonCltarUy, 22 Beav. 288. STATUTES RELATING TO CHARITIES. 1887 Unless the application is made by the Attorney-General acting ex officio} the petition must be presented by two or more persons : * who should have a direct interest in the charity f and of whom two, at least, must be individuals : a corporation not being within the meaning of the Act ; * and the Attorney or Solicitor-General must also signify his allowance or approbation of the petition, by affixing his signature to it.^ The Solicitor-General, however, can only act during the vacancy of the office of Attorney-General.* Before siich allowance can be obtained, the petition must be signed by the petitioners in the presence of their solicitor, and their signatures be attested by him;' and a certificate must also be obtained on the petition, and signed by the counsel who prepared the petition, to the effect that, in his opinion, the petition is one proper to be presented under the act. The solicitor for the peti- tioners must likewise certify on the petition that the petitioners are able to answer the costs of the application.* Upon the petition, so signed and certified, being left with the Attorney-General's clerk, he will obtain the Attorney-General's signature thereto, in testimony of his approbation. The petition may be addressed either to the Lord Chancellor or the Master of the Rolls f and it is presented, and a copy left for the Judge, in the usual way ■}" but unless the petition is presented by the Attorney-General acting ex officio, or in a matter which is pending at the time of the application, the order or certificate of the Charity Commissioners authorising the application must also be previously obtained,^^ and produced, before the petition will be answered. As a general rule, the petition ought to be served upon all persona whose interests will in any manner be affected by the order sought to be obtained.^* 1 J,nte. 2 62 Geo. III. cli. 101, sec. 1. 3 Re Bedford Charities, 2 Swanst. 518. 4 jRe L(mdon, Brighton and any person holding or claiming such real or personal property, term, or interest adversely to such charity, or to try or determine any question as to the existence or extent of any charge or trust.* If the charity is within the jurisdiction of the Court of Chancery of the county palatine of Lancaster, and the gross annual income exceeds £30, the Chancellor of the duchy and county palatine, and the Vice-Chancellor of the county palatine, have'concurrent juris- diction with the Judges of the Court of Chancery.* If the charity is established, or administered, or applicable to or for objects or purposes within the city of London, the before-men- tioned provisions apply, although the gross annual income thereof does not exceed iE30.* Where the gross annual income does not exceed £50., the juris- diction is exercised by the District Court of Bankruptcy or County Court of the district of the charity ; ^ but the Charity Commis- sioners may direct that the application shall be made before a Judge of the Court of Chancery, or the Chancellor or Vice-Chan- cellor of the county palatine of Lancaster, according to the pro- visions applicable to a charity the gross annual income whereof exceeds £30.^ Wherever it appears to the Charity Commissioners requisite or desirable that legal proceedings should be instituted by the Attorney- _ General with respect to any charity, or the estates, funds, property, or affairs thereof, they may certify such case to him, together with such statements and particulars as in their opinion may be requisite or proper for the explanation of the case ; and thereupon the Attorney-General is (if he thinks fit,) to institute and prosecute such legal proceedings as he may consider requisite or proper, by 1 16 & 17 Vic. ch. 137, sec. 28. 2 lb-id. sec. 41. 3 Ibid, sec 29. 4 16 & 17 Vic. ch. 137, sec. 30. 6 Hid. see. 32, as amended by 23 & 24 Vic. ch. 136, sec. 11 6 16 & 17 Vic. ch. 137, sec. 35. 95 1892 THE STATUTORY JUEISDICTIOK OF THE COURT. information or petition, or by application to the Judge at Chambers, or other Court having jurisdiction under the Act.^ The application to the Judge at Chambers may be made by the Attorney-General, or by all or any one or more of the trustees or persons administering or claiming to administer, or interested in the charity, or any two or more inhabitants of any parish or place within which the charity is administered or applicable.^ The application is made by summons, in the form used for origi- nating proceedings.^ The summons should be intituled in the matter of the charity, as described in the certificate authorising the appH- cation, and also in the matter of the Charitable Trusts Acts, and of any other special Acts, such as the Trustee Acts, conferring juris- diction in the particular case ; and should state the precise object of the application. At the time the summons and duplicate are issued at Chambers,* a copy certified by the solicitor of the appli- cant, of the order or certificate of the Charity Commissioners authorizing the application,^ must (unless the application is made by the Attorney- General acting ex officio,) be left at the Judge's Cham- bers ; and at the time of sealing the summons and filing the duplicate at the Record and Writ Clerks' Office,^ the applicant's solicitor should file a written authority from the applicant to make the application, and a certificate by himself that the applicant is able to pay costs.^ Unless the application is confined to the appointment of trustees and any vesting order, or order for the transfer of stock, consequent thereon, a copy, sealed for service, of the summons must be served on the Attorney-General, where he is not the applicant ; and, as a general rule, similar copies must, in every case, be served on per- sons whose interests, will be affected by the order sought to be obtained. The Commissioners by their certificate sometimes direct 1 16 & 17 Vic. ch. 137, sec. 20. The Commissioners may also order the bill of costs of any solicitor for business done on behalf of a charity or the trustees thereof to be taxed by the Taxing Mas- ters of the Court, 18 & 19 Vic. oh. 124, sec. 40 ; anti. 2 16 & 17 Vic ch. 137, sec. 43. 3 Ord XL. 10. For form of summons, see ib. Sched. K. No. 1. 4 For the practice as to preparing, issuing, and serving a summons originating proceedings, see ante. 5 Ante. ^ Ante. 7 Thig practice is not, however, now adhered to. STATUTES RELATING TO CHARITIES. 1893 to whom notice of the application is to be given ; and if the appli- cation is for the establishment or alteration of a scheme, or the appointment or removal of any trustees or trustee, notice in writing of such intended application must be given, in such form and manner as the Charity Commissioners may direct ; and where the notice is directed to be affixed to or near the door of any parish or district church, the incumbent and churchwardens are to allow such notice to be affixed and remain so affixed during such period, not less than fifteen days, as the Commissioners may have ordered; and whenever it has been ordered that such notice shall be affixed to any place, evidence that the same has been so affixed is to be deemed prima facie evidence that it has remained so during the prescribed time.^ On the return of the summons, or at an adjournment thereof, the object of the application, and the evidence adduced in support of or in opposition to it, will be considered ; and where the application seeks the appointment of trustees, or the settlement of a scheme, the course of proceedure is the same as that before described.'' On the proceeding being brought to a conclusion, the Chief Clerk sends to the Eegistrar a minute of the order made : and the order is drawn up and completed by him in the usual way.^ Where any land, or any term or estate therein, holden upon trust for any charity, is vested in any persons other than the per- sons acting in the administration and application of the rents — or where .there are no trustees thereof, or the trustees, or any of them, are unwilling to act, or it is uncertain in whom such land, term, or estate is vested, or all or any of the persons in whom such land, term, or estate is vested cannot be found, or are under age, lunatic, or of unsound mind, (whether found such by inquisi- tion or not,) or otherwise incapable of acting, or are out of the jurisdiction, or not amenable to the process of the Court of Chan- eery — or where, by reason of the reduced number of trustees or other causes, a valid appointment of new trustees cannot be made — or where, by reason of the expenses incident to the appointment of new trustees, and the conveyance or assignment of such land, 1 16 & 17 Vic. ch. 137, sec. 42. 2 Ante. 3 Ante For a collection of orders under the Oiiaritable Trusts Acta, with aotes, see Seton^ 783, et teq. ; and see ib. 347, et seq. 1894 THE STATUTORY JURISDICTION OF THE COURT. term, or estate, to such new trustees, it shall appear to the Court of Chancery, or to any Judge thereof, desirable so to do — such Court or Judge may order that such land, term, or estate, be vested in the Official Trustee of Charity Lands ; and thereupon the same is, to vest in such official trustee and his successors, for all the estate and interest holden in trust for the charity, without any convey- ance or assurance thereof; but no such vesting order is to be made in respect of any land, or term, or estate, as aforesaid, holden in trust as aforesaid, vested in a corporation, without the consent of the corporation ; and no such vesting order is to take effect in respect of any copyhold land, without the consent of the lord of the manor, and the Court or Judge may direct such peri- odical or other payment, as the Court or Judge may think fit, to be made to the lord of the manor, in compensation for fines or other profits which would have become due upon death or admittance of tenants.^ Any Court or Judge by whom any such vesting order may have been made, or any other Court or Judge having jurisdiction in the matter, may, if it shall so seem fit to such Court or Judge, from time to time order that all or any part of the land, term, or estate, which shall for the time being be vested in the Official Trustee, by virtue of any such vesting order, shall be devested, and vested in the acting trustees or trustee for the time being of the charity ; and such last-mentioned order is to operate to vest such land, term, and estate, in the trustees or trustee therein named, without any conveyance or assurance.^ The Official Trustee of Charity Lands is to be deemed a bare trustee ; and is to permit the persons acting in the administration of the charity to have the possession, management, and control of the trust estates, and the application of the income thereof, as it the same had been vested in them, unless the Court or Judge otherwise directs.^ The Court or Judge may, whenever it shall appear that, for the purpose of security or the convenient administration of the charity, 1 16 & 17 Vic. eh. 137, sec. 48, as amendeJ by 18 & 19 Vic ch. 124, sec. 15. For forms of orders, see Seton, 349, No. 8 ; 7S3, No. 3. , „, .^ 2 16 & 17 Viol ch. 137, sec. 49, as amended by 18 & 19 Vic. ch. 124, sec. 16 ; Re Davenports Chanty i Be G. M. & G. 839. 3 16 & 17 Vic. ch. 137, sec. 60, as amended by 18 & 19 Vic. ch. 124, sec. 15. STATUTES RELATING TO CHARITIES. 1895 any annuities, stocks, shares, or securities held in trust for the charity, or for the purpose of discharging any legacy or charge given or made to or for the benefit of the charity, ought to be transferred or deposited to or with the Official Trustees of Chari- table Funds, order such transfer or deposit to be made ; and may authorise such trustees to call for a transfer of and to transfer such stock or shares ; and may order the payment to such trus- tees of any principal monies of any charity, under the same cir- cumstances in which the transfer of stock to them may be ordered ; and may empower them also to receive and recover, in trust for the charity to which the same shall belong, all dividends, interest, and income accrued from any such annuities, stock, or securities, respectively, and which shall for the time being be in arrear.^ Copies of all orders made by any Court or Judge for any trans- fer, deposit, or payment of stock, shares, securities, or monies to or by the Official Trustees, are to be forthwith transmitted to the Commissioners, by the parties obtaining such orders.^ No order made under the Act by the Judge at Chambers is sub- ject to appeal where the gross annual income of the charity does not exceed £100 : unless the Judge by whom such order is made certifies that such appeal ought to be permitted, either absolutely or on such terms as he may think fit to impose.^ The fees payable on proceedings before a Judge in Chambers under the Act are the same as the fees payable according to the general orders of the Court * in respect of other proceedings com- mencing by summons ; and are, in all other respects, regulated by the same orders ; and where the Judge directs that any matter commenced by summons under the Act shall be heard in open Court, the same fees are payable, and the same costs allowed, as would have been payable in respect of any other matter so heard.^ 1 16 & 17 Vic. ch. 137, sec. 61 ; 18 & 19 Vic. ch. 124, ss. 12, IS ; 23 & 24 Vic. cli. 136, sec. 12. By 16 & 17 Vic ch. 137, see. 51, trustees were empowered, on obtaining an order of the Court, to transfer or pay any charity funds to the official trustees. This may now be done under an order obtained from the Charity Commissioners : 18 & 19 Vic. ch. 124, sec. 22. For forms of orders, see Setotly 784, et seq. 2 18 i 19 Vic. ch. 134, sec. 26 3 16 & 17 Vic. ch. 137, sec. 28 ; Ord. XLI. 13. 4 That is to say, Ord. XXXVIII. and XXXIX. 5 Ord. XLI. rr. 11, 12. 1896 THE STATUTORY JURISDICTION OF THE COURT. The Court of Chancery has an appellate jurisdiction, in the case of orders made under the Act hy a District Court of Bankruptcy or a County Court. The appeal may be brought by any person authorised to make any application under the Act, or any other person who may have been made a party to any proceeding upon any application thereunder. Every appellant, other than the Attorney-General acting ex officio, must, however, within one calendar month after the making of the order complained of give notice in writing to the Court below and to the Commissioners of his desire to appeal ; and if the Commissioners think it proper that such appeal should be entertained, and give a certificate to that effect, the Court below is to suspend any proceedings upon the order appealed against ; and the Commissioners may require the person giving such notice to become bound, by a bond (which is exempt from stamp duty,) with two sufficient sureties, in such sum as the Commissioners may think reasonable, to pay such costs of the proceedings on the appeal as may be ordered to be paid by the appellant ; and also (if the Commissioners so think fit,) to indemnify the charity against the costs and expenses of or attending the appeal. An appeal by the Attorney-General must be lodged within three calendar months after the making of the order complained of.^ In other cases, the petition of appeal must be presented within three calendar months from the date of the order allowing the appeal.^ The petition must set forth the order appealed against, and the order allowing the appeal ; and pray such relief as the case may require ; and upon the hearing of such petition, the Court may confirm, vary, or reverse the order appealed against, or may remit such order to the District Court of Bankruptcy or County Court by which the same was made, with or without any declaration or directions in relation thereto ; or may proceed, in relation to the charity to which such order relates, as in the case of an applica- tion under the Act to a Judge of the Court at Chambers ; and any Judge sitting at Chambers or in open Court may make or give any such orders or directions, in relation to the matter of such order, 1 16 & 17 Vic. ch. 137, sec. 39. 2 Ihid. Sb 39, 40. By the expression "order allowing the appeal," it is conceived that the certificate mentioned in a. 39 is intended; STATUTES RELATING TO CHARITIES. 1897 as he may see fit : or the Court may make such other order, in relation to the matter of any such appeal, as to the Court may seem just, and as might be made in the case of a suit regularly instituted, or a petition, as the case may require ; and in case the party allowed to appeal does not within such three calendar months present such petition of appeal, the order against which such appeal was allowed is to be final ; and in case any costs, adjudged on any such appeal to be paid by the party allowed to appeal, are not paid, the bond may be put in suit ; and the money to be re- covered thereon is to be applied to indemnify the charity estate, or the person damnified, or otherwise in such manner as the justice of the case may require, and the Com-t or Judge by whom such appeal may have been heard shall think fit.^ The Charity Commissioners may, in case they disapprove of any order or decision of any District Court of Bankruptcy or County Court for the appointment or removal of any trustee of any charity, or approving of any scheme for regulating or directing the admin- istration of any charity, or the estate, funds, property, or income thereof, submit the same to the consideration and decision of a Judge of the Court of Chancery ; or they may remit the same for reconsideration by the District or County Court ; and in case the Commissioners are dissatisfied with the order of the District or County Court on the reconsideration of the matter, they may refer such orders and the subject-matter thereof to a Judge of the Court of Chancery ; or, as to any charity within the jurisdiction of the Court of Chancery of the county palatine of Lancaster, either to the Chancellor or the Vice-Chancellor thereof, or to a Judge of the High Court of Chancery ; and where any order or decision is so referred, the Judge has and may exercise all such jurisdiction, power, and authority in relation thereto, as in the case of a charity the gross annual income whereof exceeds £S0; and may make such order in relation to the matter of such order or decision as to him may seem proper.^ For the purposes of determining the jurisdiction under the Act, with respect to any charity, or the right to appeal from the deter- 1 IG it 17 Vic ch. 137, sec. 40 ; and see, for an appeal under this section, Re Donington Church Estate, 6 Jur. N. S. 290 : 8 W. R. 301, V. C, S. 2 16 & 17 Vic. ch. 137, sec. 37. 1898 THE STATUTOEY JURISDICTION OF THE COURT. minatioii of a Judge of the Court of Chancery, a statement in any certificate or order of the Commissioners that, according to their judgment, the gross yearly income of any charity does or does not exceed ^30 or £100, as the case may be, is sufficient evidence of the amount of such income.^ The Attorney-General, or any person authorised by him or by the Commissioners, in the case of any charity, whatever may be the yearly income of its endowments, and any trustee or person acting in the administration of or interested in any charity of which the gross annual income (exclusively of the yearly value of any build- ings or land used wholly for the purposes thereof, and not yielding any pecuniary income,^ shall exceed 501., or any two inhabitants of any parish or district in which the same shall be specially appUca- ble, may, within three calendar months n«xt after the definitive pub- lication ^ of any order of the Commissioners appointing or removing a trustee or trustees, or for or relating to the assurance, transfer, payment, or vesting of any real or personal estate, or establishing a scheme for the administration of the charity, present a petition to the High Court of Chancery, in a summary, way, appealing against such order and praying such relief as the case may require ; and any schoolmaster or schoolmistress, or other ofiicer removed by the order of the Board, without the concurrence of the trustees or governors acting in the administration of the charity, or a majority of them, and without the approval of a special visitor, if any, of the charity, may within two calendar months (next after his or her re- moval,) appeal in like manner against the order of removal; and the Court, upon or before the hearing of any such petition of appeal, or at any stage of the proceedings, may require, if it shall think fit, from the Commissioners, their reasons for making the order appealed against, or for any part of such order, and may remit the same to them for reconsideration, with or without any declaration in rela- tion thereto ; or may make any substitutive or other order, in rela- tion to the matter "of the appeal, as it shall think just; and the Court may make any order respecting the costs, charges, or expen- ses incident to the appeal, and may also, before hearing or proceed- 1 10 & 17 Vic. ch. 137, sec. 44. 2 23 & 24 Vic. ch. 136, sec. 4. 3 See Re Hackney Charities, 10 Jiir, N. S. 941 : 12 W. R. 1129, M. B. ; and ace S. C. on appeal, 11 Jur. N. S. 120 : 13 W. R. 398. STATUTES RELATING TO CHARITIES. 1899 ing with the same, require from any appellant, other than the Attorney-General, proper security for such costs, charges, and ex- penses as may be eventually payable by him ; but no such petition of appeal is to be presented by any person, other than the Attorney- General, before the expiration of twenty-one days after written notice, under the hand of such appellant, of his or her intention to present such petition, shall have been delivered to the Commission- ers at their office.^ The Attorney-General, or any person authorised by him or by the Commissioners, may appear as the respondent upon any such ap- peal ; and the Court may make any order respecting the costs charges, and expenses of the Attorney-General or other respondent.^ There is no appeal, under these provisions, at the instance of two of the inhabitants of a parish, in the case of a charity the annual in- come of which is under 501., without the sanction of the Attorney- General or the Charity Commissioners.^ If any person refuses or wilfully neglects to comply with any law- ful requisition or order of the Commissioiiers, or destroys or with- holds any document required to be produced or transmitted by him, or to answer any lawful questions or inquiries, or to attend in obe- dience to any lawful precept of or give evidence before any inspec- tor, or if any person wilfully alters, destroys, withholds, or refuses to produce any document which may be lawfully required to be pro- duced before any inspector, every person so offending is to be deemed and taken to be guilty of a contempt of the Court of Chan- cery, and is liable to be attached and committed on summary appli- cation by the Commissioners to the Court, or any Judge thereof; and may be ordered to pay the costs of and attending such con- tempt ; and the Court maj^ at any time, discharge such person, upon such terms as it may deem just.* Any question or dispute among the members o± any charity, wheth er within or exempted from the operation of the Act, in rela- 1 23 & 2i Vic. oh. 136, sec. 8, 2 23 & 24 Vic. ch. 136, sec. 9. 3 Be Eackney Charities, 11 Jur. N. S. 126: 13 W. R. 398, L.J J. ; overruling: S. 0. 10 Jur. N. S. 941 : 12 W. R. 1129, M. R. 4 16 & 17 Vic. ch. 137, sec. 14 ; 18 & 19 Vic. ch. 124, sec. 9 ; 23 & 2+ Vic. ch. 130, sec. 20. As to tempts and enforcing orders, see ante. con- 1900 THE STATUTORY JUKISDICTION OF THE COURT. tion to any office, or the fitness or disqualification of any trustee or officer, or his election 'or removal, or generally in relation to the management of the charity, may be referred to the Commissioners by two-thirds of the members present at a special meeting, duly convened by notice for the purpose, in the same manner in which meetings of such charity are by the rules thereof appointed to be held and convened ; and their award is final, and may be made a rule of the Court of Chancery.^ For the purposes of the Acts the word " charity " is defined to mean : every endowed foundation and institution taking or to take eflfect in England or Wales, and coming within the meaning, pur- view, or interpretation of the Stat. 43 Eliz. ch. 4,^ or as to which, or the administration of the revenues or property whereof, the Court of Chancery has or may exercise jurisdiction ; ^ but the Acts do not extend to the Universities of Oxford, Cambridge, London, or Durham, or any college or hall in the said universities of Oxford, Cambridge and Durham, or the Colleges of Eton and Winchester, or any cathedral, or collegiate church ; nor to any building regis- tered as a place of meeting for religious worship, and bona fide used for that purpose ; nor to the Commissioners of Queen Anne's Bounty ; nor to the British Museum ; nor to any friendly or benefit society, or savings bank, or any institution, establishment, or society for religious or other charitable purposes, or the auxiliary or branch associations connected therevnth, wholly maintained by voluntary contributions ; nor to any bookselling or publishing business car- ried on by or under the direction of any society wholly or partially exempted from this Act, so far as such business is or shall be car- ried on by means of voluntary contributions only, or the capital or stock of such business ; and where any charity is maintained partly by voluntary subscriptions, and partly by income arising from any endowment, the provisions of the Acts, with respect to such charity, extend and apply to the income from endowment only, to the exclusion of voluntary subscriptions, and the applica- tion thereof; and no donation or bequest unto or in trust for any such charity as last aforesaid, of which no special application or 1 16 & 17 Vic. ch. 137, sec. 64 ; 18 & 19 Vic. ch. 124, sec. 46. As to making awards rules of Court, see post. 2 See ante. 3 16 & 17 Vic. ch. 137, sec. 66. STATUTES RELATING TO CHARITIES. 1901 appropriation has been directed or declared by the donor or testa- tor, and which may legally be applied by the governing or manag- ing body of such charity as income in aid of the voluntary subscrip- tion, is subject to the provisions of the Acts; and no portion of any such donation or bequest as last aforesaid, or of any voluntary sub- scription which .is or may be from time to time set apart or appro- priated and invested by the governing or managing body of the charity, for the purpose of being held and applied or expended for or to some definite and specific object or purpose connected with such charity, in pursuance of any rule or regulation made or adop- ted by the governing or managing body of such charity, or of any donation or bequest in aid of any fund so set apart or appropriated for any such object or purpose as aforesaid, is subject to the pro- visions of the Acts ; and the Acts do not apply to the funds or property of any missionary ot other similar society, or the missionaries, teachers or officers of such society, or of any branch thereof, which funds or property shall not be within the limits of England or Wales ; "but the exemption does not extend to any cathedral, col- legiate, chapter or other schools. '^ The Commissioners may, however, on the petition of any exempted charity, make an order that it be bound by the provisions of the Act.- Where any real or personal estate is given, partly upon lawful and partly upon unlawful charitable trusts, for the exclusive benefit of Roman Catholics, the Court or Judge at Chambers may, in exer- cise of the jurisdiction created by the Charitable Trusts Act, 1853, on the application of the Attorney-General or of any person author- ized by a certificate of the Charity Commissioners,^ apportion the property or income so that a proportion thereof, to be fixed by the Court or Judge, may be exclusively subject to the lawful trusts, de- clared by the donor or settlor, and the residue thereof may become subject to such lawful charitable trusts for the benefit of Roman Catholics as the Court or Judge may consider, under the circum- stances, to be most just ; and may, by the same or any other order or orders, establish a scheme for giving effect thereto ; and may ap- 1 16 & 17 Vic. oh. 137, sec. 62 ; 18 & 19 Vic. ch. 124, sec. 49 ; Oovemors of the Charity for Widows and Children of Clergymen v. Sutton, 27 Beav. 651 ; S. G. nam. Corporation of the Sonn of the Clergy v. TruHees of the Stock Exchange, 6 Jur. K. S. 84. 2 16 & 17 Vic. cli. 137, sec. 63. 3 See ante. 1902 THE STATUTOEY JURISDICTION OP THE COUET. point trustees for the administration of the several portions of the property ; and may vest the estate in the trustees.^ No provision contained in any Act of Parliament, or decree or order, for the appointment or removal of trustees of any charity, or for or relating to the sale, exchange, leasing, disposal, or improve- ment of any property, by or under the order, or with the approval of the Court of Chancery, is (in the absence of any express direction to the contrary contained in any Act of Parliament, order, or de- cree subsequent to the 7th August, 1862,) to exclude or impair any jurisdiction or authority which might otherwise be properly exer- cised for the like purposes by the Charity Commissioners.^ {jram/mar School Act. — By the Grammar School Act,^ the Court is empowered to extend the system of education, and to regulate the right of admission into any grammar School, and to estabUsh schemes for the application of its revenues ;* but regard is to be had to the intentions of the founder, and the manner in which the school has been conducted ;^ and unless the revenues are insufficient, the teaching of Greek or Latin is not to be dispensed with, or to be treated otherwise than the principal object of the foundation ; nor is any provision relating to the qualification of ^ny schoolmaster to be dispensed with.^ Any extension of the right of admission is to be qualified, so as not to prejudice existing rights.^ The standard of admission is not to be lowered ;® and as far as possible the character of the school, and the qualifications of the masters, are to be main- tained.® In the appointment of additional masters, the original qualifications are to be maintained as far as possible ; and any existing rights of patronage are preserved.'" The appointment of any master made after 7th August, 1840,ii is to be subject to the Act ;i^ and the period on which the right of nomination of a master would lapse is, on the first avoidaoce of the office which may take place after the 7th August, 1840, to be computed from the time oi 1 23 & 24 Vic. ch. 134, sec. 1 ; and see 16 & IT Vic. ch. 137, sec. 62 ; 18 * 19 Vic. ch. 124, sec. 47; Xe Blundell, 8 Jur. N. S. 6 : 10 W. R. 34, M. R. 2 26 & 26 Vic. ch. 112. 3 3 & 4 Vic. ch. 77, sec. 1. For cases under the Act, see lie Marlboro ■ gh School, 7 Jur. 1047 L. C. ; Re Chelmaford School, 1 K. & J. 543 ; 3 Eq. Rep. 517 ; see also A ttomey-General v. Bishop of Worcester, 9 Hare, 328. 4 3 & 4 Vic. ch. 77, sec 1. 6 Ibid., sec. 2. 6 3 & 4 Vic. ch. 77, sec. 3. 7 Ihid. sec. 8. 8 Ibid. sec. 4. 9 Ibid. sec. T). 10 Ibid. sec. 6. 11 The date of the passings of the Act, 12 3 & 4 Vic. ch. 77, see. 11 STATUTES RELATING TO CHARITIES. 1903 settling the new statutes, or, if no proceedings are then pending to establish new statutes, from the time within which proceedings might be commenced.^ Where the several schools are in one place, and the revenues of any are insufficient ; they may, with the consent of the visitor, patron, and governors, be ordered to be united.^ The Court may enlai-ge the powers of the visitor where they are insufficient f and, if there is no visitor, may authorize the Bishop of the Diocese to visit the school.* In case the visitor refuses or neglects to act, the Court may substitute a person to act as visitor fro hac vice,^ and ma,y empower the visitor or Governors to remove any master.^ If the Crown is the patron, the Lord Chancellor, or the Chancellor of the Duchy of Lancaster, are to be the patrons of the school for the purposes of the Act.'' Applications to the Court under the Act are only made by peti- tion under the 52 Geo. III. c. 101 f but wherever there is any special visitor appointed by the founder, or other competent authority, opportunity must be given him to be heard previously to any decree or order being made.^ The petition ought to be served on the patron and the master of the school.^" The Act preserves the jurisdiction of the Ordinary ; and does not extend to the Universities of Oxford or Cambridge, or to any college or hall within the same, or to the University of London, or any college connected therewith, or to the University of Durham, or to the Colleges of St. David's or St. Bees, or the Grammar Schools of Westminster, Eton, Winchester, Harrow, Charter House, Rugby, Merchant Tailors, St. Paul's, Christ's Hospital, Birmingham, Manchester, or Macclesfield, or Louth, or such schools as form part of any cathedral or collegiate church.^^ In the construction of the Act, the words " Grammar School " are to mean and include all endowed schools, whether of royal or other foundation, founded, endowed, or maintained for the purpose 1 3 & 4 Vic ch 77, sec. 12. 2 Ibid. sec. 9. 3 Ibid, sec 14. 4 Ibid. sec. 15. 6 Ibid, sec 16 6 Ibid. sec. 17. 7 Ibid. sec. 22. 8 Ibid. sec. 21 : see ante. 9 3 4 4 Vie. ch. 77, sec. 1. 10 Se Marlborough School, 7 Jar. 1047, L. 0. 11 3 & 4 Vic, ch. 77, sec. 24. 1904 THE STATUTORY JURISDICTION OF THE COURT. of teaching Latin and Greek, or either of such languages, whether in the instrument of foundation or endowment, or in the statutes or decree of any Court of Record, or in any Act of Parliament establishing such school, or in any other evidences or documents, such instruction is expressly described, or is described by the word " grammar," or any other form of expression which may be construed as intending Greek or Latin, and whether hj such evidences or documents, or in practice, such instruction is limited exclusively to Greek or Latin, or extended to both such languages, or to any other branch or branches of literature or science in addition to them or either of them ; and the words " Grammar School " are not to include schools not endowed, but include all endowed schools which may be Grammar Schools by reputation, and all other charitable institutions and trusts, so far as the same may be for the purpose of providing such instruction as aforesaid.^ Under the present practice, the jurisdiction conferred by the last- mentioned Act may be exercised under the Charitable Trusts Acts ; and, accordingly, the Act is seldom resorted to.^ Church Building Amendvient Act. — By the Church Building Acts Amendment Act, power is given to the Court of Chancery to apportion, between the new parishes or districts to be created under those Acts and the remaining part of th^ parish or place out of which they are created, any charitable devises, bequests, or gifts which may have been made to or given for the use of such parish or place, or the produce thereof ; and to direct that the apportioned part shall be distributed by the incumbent or spiritual person serving the church, or by the churchwardens of the separate parish or district, either jointly or severally ; and the Court is also em- powered to apportion any debts or charges which may have been, before the period of the apportionment, charged upon the credit of any church rates in such parish or place ; and all such apportion- ments are to be registered in the Registry of the Diocese in which such parish or place is situate, and duplicates are to be deposited with the churchwardens of such parish or place ; but in all such cases, the costs ai-e to be in the discretion of the Court ; and such 1 3 & 4 Vic, ch. 77, aec. 25 ; and see ib. for the construction of the words : visitor, governors, trua tees, statutes, schoolmaster, master, under-master, discipline, and management, as used in the Act. 2 See ante. STATUTES RELATING TO CHARITIES. 1905 apportioned debts or charges are to be raised and paid by the parish or place in which they may be apportioned, in such manner as the entirety was to be raised and paid, or as the Court may direct ; and when any securities have been given for the same, the Court may order new securities to be given for the apportioned debts by such persons and bodies as the Court may direct ; and all securities are to be valid and binding.^ This power is exercised on petition, according to the 52 Geo. III. c. 101,^ of any two persons resident in such parish or place ;^ and the petition should be entitled in the matter of both Acts.* The Court has a discretion under the Act ; and in exercising that discretion, it should be guided by the consideration whether the administration of the charity is or is not affected by the division of the parish into districts, to the prejudice of the inhabitants of the new district.^ Where a ward of a parish has been divided into • districts, gifts made to it may be apportioned under the Act.^ By the Charitable Trusts Amendment Act, 1855, a similar power of apportioning parochial charities has been conferred on the Charity Commissioners, in' all cases where the gross annual income of the charity does not for the time being exceed SOU Burial Acts.— By the Burial Acts, the burial boards thereby con- stituted, with the approval of the vestry, and of the guardians of the poor (if any,) and of the Poor Law Board, may appropriate, for the purposes of a burial ground, any lands vested in any persons as trustees for the general benefit of the parish, or for any specific charity ; but when such lands are subject to any charitable use, they are to be taken on such conditions only as the Court of Chancery, in the exercise of its jurisdiction over charitable trusts, shall appoint and direct.^ The sanction of the Charity Commissioners must be obtained to the application.^ The application is made by the petition or sum- 1 8 & 9 Vic. ch. 70, sec. 22. 2 Ante. 3 8 ^t 9 Vic. ch. 70, sec. 22. 4 Jle West Ham Charities, 2 De G. & S. 218, 222 : 12 Jur. 783. 5 Ex parte Incumbent o/Brompon, 5 De G. & S. 626, 635 ; see form of order, Seton, 346. 6 lie West Bam Charities, ubisup.; and as to tlie application of tlie Act, see Attomey-Oeneral » Love, 23 Beav. 499 : 8 Jur. N. S. 948 7 18 & 19 Vic. ch. 124, ss. 10, 11. 8 16 & 16 Vic. ch. 86, sec. 20 ; extended to parishes not in the metropolis by 16 & 17 Vic. ch 134 9 Ante. Re Watford Burial Board, 2 Jur. N. S. 1045, V. C. W. 1906 THE STATUTORY JITEISDICTION OF THE COURT. mons, in the manner before explained ;i and be supported by evi- dence of the propriety of the appHcation. The question of price is one circumstance which the Court will consider, in deciding on the application.^ Municipal Corporations Act. — By the Municipal Corporations Act, it is provided that, where municipal corporations, or any of the individual corporators, were, before the Act, trustees of pro- perty for charitable purposes, the persons who at the time of the passing of the Act were such trustees, should notwithstand- ing they ceased to hold office, continue to be such trustees until the fii-st of August, 1836, or until Parliament should other- wise order, and should immediately thereupon cease so to be. It is, however, provided that if any vacancy should be occasioned among the charitable trustees for any borough before the said 1st of August, the Lord Chancellor, upon petition, in a summary way, should have power to appoint another trustee to supply such vacancy ; and every person so appointed a trustee should be a trustee until the time at which the person in the room of whom he was chosen would regularly have ceased to be a trustee, and should then cease to be a trustee ; and that, if Parliament should hot otherwise direct, on or before the said 1st of August, 1836, the Lord Chancellor should make such orders as he should see fit for the administration, subject to such charitable uses or trusts as aforesaid, of such trust estates.^ As Parliament has not otherwise directed, the powers conferred by the last provision upon the Lord Chancellor still continue. The Act only applies to charitable trusts for purposes dehors the corporation.*' The right of nominating to a spiritual benefice, ^ or to the mastership of a hospital, is within the Act.^ The jurisdiction under the Act is exercised upon petition. The petition ought to be presented under Sir Samuel Eomilly's Act,^ ' 1 As to petitions and summonses, see ante. 2 Re JEgham. Bwrial Board, 3 Jur. N. S. 956, V. C. W. 8 6 & 6 Will. IV. oh. K, sec. 71. i Re Oxford Charities, 3 M. & C. 239, 244 ; and see Re Imdlow Charities, ib. 262, 263 ; Christ's Hos- pital V. Granger, 16 Sim. 83, 102 ; Attorney-General v. J^ewbury Corvoration, C. P Cool). 72 ; Attorney-General v. Corporation of Ludlow, 2 Phil. 685 ; Attorney-General v. Corporation of Exeter, 2 Be G. M. & G. 607 : 17 Jur. 265. 6 Re Shrewsbury School, 1 M. & C. 632 ; Re St. John's Hospital, 3 McN. & G. 285. 6 Ibid., Re Huntington Chanties, 27 Bear. 214. 7 62 Geo. ni. c. 101, ante. STATUTES RELATING TO CHARITIES. 1907 as well as the Municipal Corporation Act,^ and the Attorney- General's fiat should be obtained to it.^ The petition may be heard by a Vice-Chancellor f and no order for filling up vacancies in the number of trustees, will be made, unless the Court is satisfied that the existing number of trustees is practically insufficient, and occasions inconvenience.* By " The Charitable Trusts Act, 1853," wherever the legal estate in any lands of which a body corporate, subject to the provisions of the 5 & 6 Will. IV. ch. 76, was a trustee for charitable purposes, has not, since that Act, been duly veste'd in the trustees appointed under its provisions, or their survivors, or otherwise lawfully dis- posed of by the body corporate, such legal estate shall, imme- diately after the 20th August, 1853,-'' and without any conveyance thereof, vest in the trustees so appointed, or their survivors, according to the respective estates and interests therein, and sub- ject to the charges, and upon the trusts then affecting the same ; and upon the death, resignation, or removal of any of the trustees, and upon any appointment of new trustees, the legal estate in the same is to vest in the persons who, after such death, resignation, or removal, and appointment of new trustees, shall be the trustees for the time being, without any conveyance or assurance what- ever.^ Charitable Uses Acts. — In connection with the subject of chari- ties it may be mentioned, that whenever the Court is satisfied by affidavit or otherwise, that the original deed creating a chari- table trust has been lost or destroyed by time or accident, but that the trusts thereof sufficiently appear by some subsequent deed ap- pointing new trustees, or otherwise reciting the trusts created by the original 'deed, it may, on the application by summons, in a summary way, of any trustee or other person interested in such charitable trust, make an order, authorising the enrolment of such subsequent deed ; and the enrolment thereof will have the same 1 ,5 4 6 Will. IV. ch. 7B. •^ Ante ■ lie Warwick Charities, 1 Phil. .>i>9. .S Re Northampton Charities, 3 De G. M. 4 G. 179 ; Rf UUiucfsUr Charitief, 10 llaie, Ajip. S. 4 Re Worcester Charities, 2 Phil. 284 ; and see Re Oliniceater CUarUir», uln mij,. li Date of passing "The Ohai-ituble Trusts Act," IS.'i.S." 6 16 1 17 Vic. ch. l:f7, sei- dfr. 96 I 1908 THE STATUTORY JUMSDICTION OF THE COURT. force and effect as the enrolment of the original deed would have had if the same had not been lost or destroyed.^ An application under this Act is made by a summons, in the form used for originating proceedings, and intituled in the matter of the particular trust, and of the Act ; and a duplicate must be filed at the Eecord and Writ Clerks' Office, in the usual way.^ The application must be supported by affidavit or other evidence to satisfy the Judge that the authority to enrol the deed ought to be given. 1 27 & 28 Vic. ch. 13, sec. 3. A3 to the enrolment of such deeds, see 9 Geo. II. ch. 36 ; 9 Geo. IV. eh. 85 ; 24 ft 25 Vic. ch. 9 ; 25 & 26 Vic. ch. 17 ; 26 & 27 ' Vic. ch. 108 ; L. C. Conv. , 481, e( leq. ; Smith, Comp. 282, et seq, 2 Ante. THE END. INDEX. ABATEMENT, 1580, 1603. bankruptcy of defendant, not an, 123. bankruptcy of platntifif, an, 51. motion for revivor or dismissal of bill on, 51, 511. or after decree, for prosecution of suit or stay of proceedings, 512. causes of, 1518. change of assignee in bankruptcy, an, if defendant, 124. change of interest or liability, on, 1580. confirmation of proceedings taken by mistake, after, 1597. contempt, process of, regular, pending partial abatement, 1594. secus, pending total, 1581. corporations, in suits by, 17. death of assignee in bankruptcy, an, if defendant, 124. death of defendant, motion for revivor or dismissal of bill on, 511, 1597. death of husband defendant, not an, 150. death of married woman defendant, an, 151. death of party, vifhen not a cause of, 1595- death of sole or co-plaintiff, motion for revivor or dismissal of bill on, 510, 50, 1581, 1597- death of relator, not an, in information, 9. secus^ in information and bill, 9. dismissal of bill, incase of, 510, 511, 512. dismissal of bill for non-prosecution irregular after, 510, 511, 1581. secus, if caused by death of co-defendant, 507. effect of, 1580. entry of decree or order notwithstanding, 633. hearing and judgment, between, decree or order drawn up notwithstanding, 633- infant plaintiff attaining twenty-one, not an, 62. information, of, what will cause, 9, 10. injunction, effect of, on interlocutory, 51, 1594. motion for revivor or dissolution of injunction, 51, 1704. perpetual, not affected by, 1 709. marriage of female defendant not an, 150. marriage of female plaintiff, an, 91. motion for revivor or dismissal of bill on, 511. revivor unnecessary, if husband dies before order obtained, 91. matter in, not ground for bill of review, 91. partial effect of, 1 594. payment out of Court pending, 1594, 1606. prisoner for contempt not dischargrd by, 1594. proceedings to be taken by him, 1694. receiver, effect of, upon, 1594. revivor on, how obtained, 1580 ; and see Kevivor. sequestration, effect on, 662, motion for revivor or removal of sequestration, 663. special case, of, 1868, 1869, 1867. 97 1910 INDEX. ABATEMENT— ««;m««rf. total, effect of, 1593. revivor after, effect of, IS9S- ABODE (PLACE OF). Si'f Address. ABROAD. See Jurisdiction. ABSCONDING DEFENDANT, pro confesso, taking bill against, under general orders, 370, et seq. receiver against, when granted, lyS^- service out of the jurisdiction of biU upon, under original jurisdiction, 358. ABSENCE, attorney, or counsel, of, new trial at law on ground of, 688. witness, of, new trial on ground of, in Chancery 680. at law, 688. ■> ABSENCE OF PARTIES, objection on ground of, 240, 246 ; and see Objections for Want or Parties. ABSOLUTE, decree, against infant, how made, 134. ABSTRACT OF TITLE, delivery of, how compelled, 1165. objections to be served, H65. order 390, as to, 1 165. definition of " abstract," I165. purchaser may now call for an abstract at vendor's expense, 1166. what should be abstracted, 1 166. proper form of, 11 66, Il69. FREEHOLD PROPERTY, 1 1 69, II 87. Deeds, 1169. date and parties, 1 169. recitals, 1160. testatum, 1 1 70. consideration, 1170. granting part, 1 1 72. parcels, II73- exceptions, 1174. habendum, 1 174. reddendum, I174- declaration of uses, and the person in whose favor it is made, II75- declaration of trusts, 1 1 76. conditions and provisoes, II77» powers, II77- covenants, 1 1 78. execution, 1 1 79. receipt, 1 182. Vmis, 1 183, 1 184, 1 185. miscellaneous docutnents, 1 185. letters of administration, 1 185. private acts of parliament, 1183. judgments, 1186. decrees, 11 86. contracts for sale, 1187. PROPERTY, NOT FREEHOLD, I187. leaseholds, 1187. personalty, II 87. PROFESSIONAL DUTIES CONNECTED WITH ABSTRACTS OF TITLE, duty of vendor's solicitor, 1187, iigi. purchaser's solicitor, 1191, 1192. INDEX. 1911 ABSTRACT OF TITLE— coniinued. MORTGAGES, VENDOR'S LIENS, INCUMBRANCES, II93 — II94. crown debts, H95. executions, 1197. taxes, 1 198. special improvements, 1199, 1202. mutual insurance companies, 1202, 1203. dower, 1204, 1206. curtesy, 1206. legacies, 1206, 1210. duty of counsel, 1210, 1218. GENERAL NATURE OF THE TITLE WHICH MUST BE PRODUCED, I2l8 — 1224. COMMENCEMENT OF ABSTRACTS OF TITLE, 1224 — 1229. ' PARTICULAR RULES RELATING TO ABSTRACTS OF TITLE OF FREEHOLDS, 1229 — 1239. titles under tenants in fee, 1229. of tenants in tail, 1230. under tenants for life, 1233. tensints pur auira vie^ 1235. remainder men, and revisioners, 1 238. tenants of Cross Remainders, 1239. LEASEHOLDS AND CHATTELS REAL, I24O. leaseholds, 1240, 1246. terms for years in gross, 1 246, 1248. attendant terms, 1248, 1250. tenants from year to year, 1250, 1251. EVIDENCE BY WHICH ABSTRACTS SHOULD BE SUPPORTED, I251 — 1252. deeds, 1253, 1255. wills and letters of administration, 1255, 1279. acts of Parliament, 1279. records and proceedings in Chancery, 1280. decrees, 1281. vesting orders, 1285. by-laws, 1289. powers of sale, 1291. tax-titles, 1293, 1298. assessment, 1298,1301 treasurer's return of lands in arrear, 1301, 1303. writ to sell, 1303. distress, 1305. advertisement, 1307, 1309. sale, 1309, 1 313. payments, 1313, 1314. description of lands, 1314. the deed, 1315. sheriff's deeds, 1316, 1318. insolvency, 1318, 1319. EVIDENCE OF THE FACTS REFERRED TO IN ABSTRACT, I319 — 1332. births, marriages, and deaths, 1319, 1321, intestacy, 1 32 1. legitimacy, 1321. death without issue, 1322. executorship, and administratorship, 1322. title, 1322. possession, 1323, 1331. heirship, 1331. bachelorhood, 1 331. identity, 1331. payment of money into Court, 1331. legacies, 1 33 1. 1912 INDEX. ABSTRACT OF TITI.'E— continued. MISCELLANEOUS EVIDENCE OF ABSTRACTS OF TITLE, I332 — 1334. public books, 1392. parliamentary surveys, 1332. pedigrees, 1332, 1333. family documents, 1333. bishop's registers, 1333. entries, 1333. maps, 1334. awards, 1334. certificates, 1334. SECONDARY EVIDENCE IN SUPPORT OF ABSTRACTS OF TITLE, I334 — 1347- voluntary affidavits, 1338, 1339. recitals, 1339— 1342. presumptions, 1342 — 1344. copies, drafts, and abstracts, 1344 — 1346. extracts, 1346. recitals, 1346, 1347. master's OFFICE, PROCEEDINGS IN, ON ABSTRACT, I347 — 1360. order 391, 1348. " 390, 391, 392, 393—1349- " 394, 395. 396—1351- PROCEEDINGS ON OBTAINING THE CONVEYANCE, I36I — 1375- ABUSIVE LANGUAGE, server of process or order, to, punishment for, 667. ACCESS, non, proof of, 399, u. (l). ACCESSION (QUEEN'S), judicially noticed, 386. ACCIDENT, action, when restrained on ground of, 1640. ACCOUNT, and see MASTER'S OFFICE, alteration in, authentication of, 574. answer, how set out in, 451, 454. . reference to in, when sufficient, 451. appeal, taking of, not stayed pending, 1564, 1565. interest on, how computed, with rests, 829. payment, or transfer into Court of, application for, 1822. certainty, required in bills for, 303. concurrent jurisdiction of Equity, in cases of, 390, costs of suit for, 1487, 1488; and jf^ Costs. disclaimer of interest in, insufficient to protect defendant from setting out, 435. 436. evidence, what sufficient, in suit for, 541, 542. general, fraudulent release ordered to be delivered up, under prayer for, 306. mixed improperly, discovery of, 415. mutual liability to, persons under, should not be co-plaintiffs, 192, 193. nf exeat, when issued in cases of, 1 733. ■ not issued where defendant held to bail for the same amountj 1735. affidavit on which issued, 1736, 1741. co-defendant, against, 1739. fwMi numbering of, in decree or order, 627. offer to pay balance of, not necessary in suit for, 310. parties to suits for ; all accounting persons should be, 1 74. seeus, if liability several, 227. It persons accounted with, not necessary parties, 178. 2^",^ personal representatives, in suit against administrator df sen tort, 207, 208. __^ __ personal representative, English, in suit against foreign representative, 207. INDEX. ' 1913 ACCOUNT- continued. trustees, all should be, 224, 225. sccus, if liability several, 227. partnership, bill to take, must pray dissolution, 274, 276. patent cases, when directed in, 1667. obtainable now at common law, 1667. personal estate of, not enforced, if assets admitted, 447, 448. personal representative, against, cannot be waived in creditors' suit, 193. receiver's, 1778, 1794, 1600; and j^f Receiver. rents and profits of, not ordered under prayer for specific performance, 304, 305- trade mark, when directed, in cases of, 1673, "■ (4-) waste, account in cases of, incidental to injunction, 1660. ACCOUNT (IN ACCOUNTANT'S BOOKS), to joint, of husband and wife, effect of, on her right by survivorship, 93. ACCOUNTANT, assistance of, how and when obtained, 613 ; and see Expert. ACCOUNTANT OF THE COURT, appointment and duties of, i8o8, 1823. ACCOUNTANT'S OFFICE, business and general course of practice in, 1824, 1835. stop order, lodging at, 1718. vacations in, 327. ACCOUNTANT TO THE CROWN, receiver, objectionable as, 1767. ACCOUNTING PERSON, husband of, generally necessary party, 209. necessary party to suit for account, 204, 205. secus, where liability several, 226, 227. ACKNOWLEDGED DEED, payment out of fund representing real estate of married woman, without, 1833. ACQUIESCElSfCE, breach of injunction or restrainihg order, effect of acquiescence in, 1703. interlocutory injunction, effect of, on application for, 1691. on application to dissolve, 1 704. receiver, by, effect of, on right oi cestui que trusts, 1758. ACT OF PARLIAMENT, affidavit of title, on application for payment out of deposit under, 1833. dismissal of bill on plaintiff's application, when rendered nugatory by sub- sequent, 484, 485. proof of, when printed by Queen's printer, 548. when not printed, 548. ACTION AT LAW, costs of successful, when allowed, though not sanctioned by Court, 1 786. creditor by, restrained after administration decree, 1632, 1635. defence of, by receiver, leave necessary for, 1 785. election between suit and, compelled, when, 513. injunction, where granted to restrain, 1640, 1641. course, where question both legal and equitable, 1640. stage of action, at which granted, 1641. substituted service of bill, when allowed, 256 ; and see Injunction and Restraining Order. legal title, when formerly directed to establish, 669. survivorship, effect of, on wife's right by, 71, 92, 93. 1914 INDEX. ACTOR, breach of agreement by, when restrained, 1682. ACTS, all preliminary, necessaiy to complete plaintiff's title, must be averred, 264^ ACTUARY, assistance of, how obtained, 613 ; and see Expert. ADDING TO THE DECREE, accounts and inquiries, when further may be added, 734. notice of decree, on application of person served with, 348. ADDRESS, bill of, 292. when Great Seal in Sovereign's own hands, 292. when holder of Great Seal a party, 292. amended bill, of, 318, 319. corporation, of, statement of, not necessaiy in bill by, 293. demurrer, for non-statement of plaintiff's, 292, 396. married woman, of, statement of, in bill by, 293. misdescription or omission of plaintiff, how'taken advantage of, 293 ; and see Costs (Security for) next friend's, statement of, in bill, 293. omission of, how taken advantage of, 293, n. (7.) peer, of, statement of, not necessary in bill by, 293. petition, of, 1625. petitioner's, statement of, in petition, 1625. plaintiff's statement of, in bill, 292, 293. cross-bill, in case of, 1412, 293. next friend, not required in suits by, 293. plea for misdescription of plaintiff's, 293. ADDRESS (FOR SERVICE), solicitor's, or party's- (if acting in person), to be written or printed on writs and summons, and, on proceedings, left at Record and Writ Clerks' oifice, 361, 362. service at, of proceedings not requiring personal service, 362. ADEMPTION, parties in cases of, 211, n. (l.) ADEQUATE VALUE, . bill must be for, and what is, 271. objection for want of, how taken, 272. ADJOURNMENT (OF CAUSES), 609, 610. consent by, 6ri. costs of the day, on payment of, 610. cross, or supplement, causes, in case of, 609. reasons for, 609. ADMINISTRATION (LETTERS OF), allegation of grant of, obviates demurrer but not plea, 263. discovery of proceedings on grant of, not required in suit for realty, 404, 405. ADMINISTRATION (LIMITED LETTERS OF), proceedings in case of, binding on general personal representative, ,161, 162. sufficient for purposes of suit, when, 159, i5o. ADMINISTRATION SUIT, and see MASTER'S OFFICE, concurrent staying, 491 ; and see CONCURRENT SuiT. concurrent suits, in case of, 493. order suits, in, 734 ; and see CONDUCT OF Cause. costs of, 1510, 1526, 1527, 1-533, 1539, 1317; and ja Costs. decree in, action by creditor restrained after, 1463 — 1466, 1632, 1635 ; and see Creditor. INDEX. 1915 ADMINISTRATION SXHT—continuid. decree in, on application of residuary legatee,' next of kin, legatee interested in legacy charged on realty, person interested in proceeds of realty directed to be sold, residuary devisee, or heir, executor, or administrator, others not being parties, 342. but they must be served writh notice of it, 174, 175, 176, I9S- general personal representative, necessary party to, 161, 162. payment into Court in, by party found a debtor, 1816. proof of debt in, no election not to sue at law, 515, n. (8.) statutory provisions as to parties to, 342. trustees, all necessary parties to suit for general administration, 224, 225. represent cestui que trusts in, 182. ADMINISTRATION (OF ESTATES ON MOTION), 729, 736. adding to order in, 734. admission of assets, defendant not chargeable vjfith, in, 735. bill not filed after order refused on merits, 734. cases to which applicable, 729, 730. concurrent suit, staying, 735- creditors' action restrained after, order in, 1095, 1634. evidence, in support of motion for Order, 733. further consideration, how heard on, 736 ; and see Further Con- sideration. hearing of application, 733. injunction, granted after order, 735, 1634. ne exeat, granted in, 1739- order, conduct of, 734. effect of, 733. form of, 734. prosecution of, 73^' service of notice of, 734- parties, who are necessary, 732. real estate, when applicable in case of, 731, 732. wilful default, defendant not chargeable with, in, 734. ADMINISTRATOR, administration decree, on application of, against a legatee or next of km, 184. 341- ■ ■ , . de son tort, legal personal representative party to suit against, 2b3. defaulting, costs of assignees in bankruptcy of, 1528. evidence in suit against, 542. plaintiff, description of, as such, in bill, 294. plaintiff suing before grant must obtain it before hearing, 263. such a bill not demurrable if grant alleged, 263. but fact may be pleaded, 263. ADMINISTRATOR (AD LITEM), authority of, 161, 162. costs, when allowed, though no personal estate, 1526. estate sufficiently represented by, when and when not, 161, 162. payment out to, not ordered, 1642, 163, 164. ADMINISTRATOR < DE SON TORT), personal representative necessary party to suit against, for account, 207, 263, 264. ADMINISTRATOR (DURANTE ABSENTIA), appointment of, when necessary, 208, n. (l.) ADMINISTRATOR (PENDENTE LITE), appointment and authority of, 207. ADMINISTRATRIX, married woman, »?««?< not granted against, 1541, 141. 1916 INDEX. ADMIRALTY (COURT OF), demurrer that it is proper tribunal, 391. ADMISSION OF ASSETS. See Assets. ADMISSIONS, actual, what are, 784, 528, 535. agreement, by, 534 clear and distinct, must be, 534. documents, of, 534. policy of law, must not be contrary to, 534. writing, should be in, 534. answer, by, 529. infant's, cannot be read as against him, 132, 530. unless adopted on attaining twenty-one, 531. guardian's, read against him, 530. insufficient, when permitted to be completed by evidence, 542, 543. lunatic's by his committee, read against him, 531. married woman, in separate answer of, 147. her inheritance not bound by, 148. mistaken, controverted only by correction, not by cross bill, 477. supplemental answer, when permitted in order to correct, 477- payment into Court, on, 1820, 1822 ; and see Payment and Transfer INTO Court. qualifying passages must be read, 529. sufficient, what are, 529. unsound mind, of person of, whether it can be read as, 139, 531- defendant, when read by, as, 530. amendment, effect of, 530, 531. another suit, when read as although in, 529. law, when read as at, 529. heir, of, will established upon, 556* secus, where heiress a married woman, 147, 556. infant, cannot be made on behalf of, 133. ancestor's, binding on infant, 1 33. insertion of, in decree or order, 628. pleadings, -must be noticed in, 541. record, on the, 528, 533. ADOPTION (OF SUIT), by infant, effect of, 62, 63. ADULTERY (OF WIFE), and see "Alimony." equity to a settlement, effect of, on, 83, 84. evidence of, only admitted under express charge of, 538- ADVANCE (OF CAUSE), directed, when, 607, 608. fro forma, 608. cross cause, of, 609. ADVANCE OF DEMURRER, injunction bill, where directed in case of, 428, 1699. ADVANCE OUT OF FUND IN COURT, issue, when made for trial of, 677. ADVANCEMENT OF INFANT, application for, how made, 1400. power for, usually contained in settlement, 1399. ADVERTISEMENT, see Master's Office and Service. ADVOWSON, partition of, how effected, 706. seisin of, how alleged, 295. INDEX. 1917 AFFIDVIT, 568—577. ' accompanying bill, when necessary, 313, 315. omission of, how taken advantage of, 315. service of copy of, 316, 352. sworn, when and by whom, 315, 316. affirmation, when taken instead of, 576 ; and see Affirmation. alteration in, how authenticated, 573. consent to file, though not authenticated, 573. answer, may be treated as, on application for or to dissolve injunction, 1695, 1704. on motion for decree, 517; or for receiver, 1 769. verifying, 531, n. (7.) assets, of, on application to restrain creditor's action after administration decree, 1634. attestation of officer by whom taken, 575. blind man, of, how taken, 575. cause or matter, must be made in, 571. Chambers, evidence in, adduced by, 726. office copy of,-by whom taken, 613. collusion, of no, in interpleader suit, 315. copies of, by whom furnished, 577. pauper, when furnished to or by, 39. time for furnishing, 577. cross-examination, on, 568. dates in, how expressed, 573. deaf and dumb persons, of, how taken, 576. death of deponent, effect of, 569. demurrer for want of, .315, 397 ; included in general demurrer, 421. description of deponent in, 571. discovery, bill of, when annexed to, 313. documents, as to, 1 841, 1843. answer setting out documents when orderdd after, 1841. claimant under decree, in case of, 1847. corporation aggregate, by whom made in case of, 1841. cross-examination on, not allowed, 5S8, 1845. description of documents in, 1841. form of, 1 84 1. informality or insufficiency, proceedings in case of, 1844. objections to production, how raised by, 1841. omission in, further affidavit may be required in case of, 1845. parties, who must join in, 1843. time to make, extension of, how obtained, 1844. exhibit to, 574, 575 ; when not to be annexed, 574. identification of, 574. filing, 577 ; in pressing matter in, 577. notice of, 577. first person, must be expressed in, 572. foreigner, of, how taken, 576. form of, 571- impertinence in, costs occasioned by, 573. application for, when to be made, 573. interlineation in, how authenticated, 573. consent to file, though not authenticated, 573. irrelevance in, remedy for, 572. jurat to, 575 ; and see^VKKT. knowledge, means of, must be shown, 571, 572. marksman, of, how taken, 575. merits, not now required in case of substituted service, 356, n. (3.) motion, on, 1616 ; and see Motion. motion for decree, on, 517, 518 ; and see Motion for Decree. name of deponent, must be inserted in, 571. 1918 INDEX. AFFIDAVIT— ^ff»ri«a^a'. no settlement, of, when required, and form of, 76. oath, administration of, 576. oath, statement that deponent makes, necessary in, 572. office copy of, 577. injunction dissolved, because not in Court, 1695 '> ^"cl -"^ Office Copy. pending suit or matter, must be made in, 568. perpetuate testimony, must be filed with bill to, 315. time for, in case of motion for decree, 520. quotations in, how indicated, 573. scandal in, remedy for, 572. schedules to, how referred to, 574. alterations in, how authenticated, 574. search for, where necessary, 1447, 577. signature of deponent to, 575. official, of, before whom sworn, 575. sums, how expressed in, 573. sworn, before whom, 569. solicitor in a cause, irregular if before, 569. title of, 571. amendment of bill, effect of on, 571, 1628. error in, how rectified, 571. written, how to be, 573. AFFIRMATION, affidavit, when taken instead of, 576. affirmat to, form of, 576. answer, when taken on, 467. form of, 572, n. (3.) Moravian, Quaker, or Separatist, how taken, 576. AFTER-ACQUIRED PROPERTY, condition as to, may be annexed to bankrupt's discharge, 50, u. (2.) former difference as to, between bankrupt and insolvent debtor, 50. AGENCY, see Master's Office, AGENT, communication with, when privileged, 410, 411 ; and see Privileged Com- munications, Professional Confidence. costs of, 1511. fraud or collusion, charged with, when made a party, 248. party, usually not a necessary, i£6, 157, 204, 246, 249. but agency must be proved, or appear, 156. principal may sue without agent, when, 156, 157. privity, not destroyed by employment of, 268. specific performance, not necessary party to suit for, 246. may be joined when he has received the deposit, 247. substituted service of bill on, when allowed, 356. title deeds, holding, not a necessary party, 249. town, of solicitor, name and address to be indorsed on pleadings, summons, writs, and other proceedings, 361, 262. trustee, of, not a necessary party, 204. AGREEMENT, antenuptial, suit to establish; discovery in, 404, 405. assignment of wife's chattels real, for, effect of, 102. breach of, when restrained, 1680, 1684. land, relating to, how alleged, 297. letters, contained in, how alleged, 297. statement of, in bill, altered to accord with that in answer, 323. ALIEN, birthplace of, discovery as to, must be given, when, 3, 399. INDEX. 1919 ALIEN — continued. copyright of, when protected, 41. descendant of British subject settled abroad, when an, 42. discovery whether devisee is, must be given, 403 . enemy, how constituted, 43. discovery, cannot file bill of, 44. effect of person so being, 45. objection that plaintiff is, how taken, 45 ; not encouraged, 44. proof of debt due to, admitted, but dividend postponed, 45. property of, where others may sue for, 44. resident in England, suit by, when permitted, 42. wife of, sued without him, 140. foreign contracts, suits by, on, are goveened by foreign laws, 42. ne exeat regno, when issued against, 1 540, 42. objection that plaintiff is, 45, 46. plea that plaintiff is, 49. prisoner of war, suit by, when permitted, 43, 44. security for costs, when required from, 46 ; and see Costs (Security for). suits by, when permitted, 441, 47. war, effect of, on pending suit, 42, 45. wife of, may be sued without him, when, 70. ALIENATION, property, of, when restrained, 1677, 1678. injunction usually granted ar/a?-^^, 1679, 1693. ALIMONY, 141 1— 1463. jurisdiction of the Court as to, 1411. our Courts have no power to decree either divorce or restitution of conjugal rights, 141 2. cases in which the Court of Chancery has power to decree alimony, 1412. Divorce, according to the law of England, sentence of divorce, what it is, 1413- necessary to prove a valid marriage, 1414. grounds upon which a divorce can, by the law of England, be granted, 1414- Adultery, definition of, 1414. evidence necessary to establish adultery, 1414, 1422. three general grounds usually pleaded in ans.ver to a. charge of adultery, 1422. 1st. compensatio criminis, a set-off of equal guilt, or recrimination, 1422. 2nd. condonation, 1423. 3rd. connivance, 1423. Recrimination, rules as to, 1423 — 1427. CoNDONATrON, rules as to, 1427 — 1431. Connivance, rules as to, 143 1 — 1434. malicious desertion, effect of, 1433. cruelty, 1434, 1440. unnatural practices, 1439. deed of separation, effect of, 1440. mere separation, not ground of a divorce, 1440. parent or guardian of a minor may institute a suit for divorce, 1441. and so may the committee of a lunatic, 144 1. no limitation of time for bringing a suit for divorce, 1442. marriage cannot be dissolved by Courts of another country, 1443. 1446' this point doubtful, 1444. Restitution of Conjugal rights, 1446, 1449. what is, 1446. rules as to, 1446, 1449. Amount of Alimony, 1450, 1462. Interim Alimony, 1450, 1451. what it is, 1450 how obtained, 1 451. 1920 INDEX. AlAUOT attestation of, when put in without oath, 462. committee, of, 460. dispensed with, when, under special circumstances, 460. guardian ad litem ^ of, 460. place of, 467 ; in case of schedules, 467. statement of defendant's case in, 440 — 441. sufficiency of, admitted by amendment of bill, 328. or service of notice of motion for decree, 517- sufficient, when answer deemed, 328 ; and see Sufficient. 475—477- sums, how expressed in, 466. supplemental answer, 475, 477 ; and see SUPPLEMENTAL Answer.- supplemental bill to, 1602. supplemental statement, to, 1600. out of England and Wales, but within Queen's dominions, 466. out of Queen's dominions, 466. time for putting in, 462, 463, 465. demurrer and answer, for 426. demurrer overruled, after, 433 ; extension of, how procured, 433. enlargement of, 464. application for, how made, 464, 465 . costs of application, 465. counsel's certificate, when granted on, 465. married woman, for separate answer of, 461, 469. INDEX. 1927 ANSWER— fo«//«afirf. security for costs, pending giving of, 30, 463. title of, 458. amendment of, wlien permitted, 478. misnomer, correction of, in, 458. title, objection by answer that discovery only relates to defendant's own, 446. unsomid mind, of person of, 138, 139, 531. guardian, put in by, 138, 469. read against liim, whether it can be, 139, 517, 531. voluntary, what is, 440. put in, where, 381 ; in case of infant, 132. sufRcient, when, 327. APPEALS AND REHEARINGS, 1555—1579. acting on order, not a waiver of right to appeal, 1562. agreement not to appeal, effect of, on right to appeal, 1556. amend bill, leave to, where given at heaving of appeal, 246. Appeal Court in Chancery, constitution of, 1566. decisions of majority of Court binding, 1566. rehearing before Court of Appeal, when allowed, 1566. claimant under decree, by, 1557. consent, from decree or order made by, not permitted 608, 1555. consent to consequential order, not a bar to appeal from original order, 1556. contemner may, 1 723. costs, no appeal for, 1558 — 1561 ; and see Costs. costs on appeals, 1577 — 1578 ; and see Costs. costs, proceedings to recover not stayed by appeal, 1562. creditors under decree, by, 1557. cross appeal, when necessary, 1577. damages, from order directing assessment of, 677. decree or decretal order, only discharged by order made on 1566 — 1567. demurrer, from allowance of, with leave to amend, by plaintiff, 430 — 1555, by defendant, 431. demurrer, from order overruling, amendment of bill not a bar to, 434. discretion, no appeal in matters of, 1558. distribution of fund, when stayed pending appeal, 1564 — 1565. enrolment, permitted in Chancery, after, 1568. evidence on, 1573 — 1575 ;and see Evidence. execution of decree or order, not stayed by, 1562. execution, appeal after decree carried into, 1570. hearing of, 1573; aad .r^i? Hearing. issue, appeals from orders granting or refusing, 672. appeal after trial of the issue, 697, I57°' married woman appeals by next friend, 150. motion, from orders made on, 1566, 1567, 1575) 1624. abandoned motion, appeal treated as, on non-appearance of appellant,. 1451 — 1560, 1623. evidence on, 1575, 1624; and jf^ Evidence. notice of, how served and set down, 1624. motion for decree, from order on, 520 ; right to begin on, 520. new trial, from order on application for, 697. notice of decree, by person served by, 348 — 1556, 1557. number of rehearings, no positive restriction of, 1568. but special leave required after first, 1569. pauper, by, 35, 1558, 1573- infant, if an, 34, 59, 1573. married woman, if a, 34, 35, 89, 1573. payment, or transfer out, when delayed in case of, persons not parties to record, by, 1556, 1557. review, bill in nature of bill of, when accompanied by, 1567, 1568. pro confesso, on what terms granted where cause heard, 379. 1928 INDEX. APPEALS AND REKEARIN GS— coutintieif. purchaser under decree, by, 1557. rehearing, not allowed where defect otherwise remediable, 1567. only allowed on points existing in the decree, 1567. subsequent inconvenience, not allowed in order to correct, 1567. remainderman, after estate tail, by, 1557. respondent, the whole case open to, as against appellant, 1575, 1576. secus, as to co-respondents, 1576. security for return of distributed fund when required, on, 1565. special case, from orders made on, 1567, 1872. staying proceedings in case of, 1872. stand over indefinitely, not allowed to, 1578. staying proceedings, pending, 494, 1562 — 1565 ; and see Staying Pro- ceedings. subsequent proceedings, taken before what Judge, 1578. supplemental bill, when appeal heard on, as well as on petition, 1567, 1568. supplemental bill, to carry decree into execution, where filed pending, 1562. trial of question of fact, appeal from order directing, 677. further hearing not stayed on account of pendency of, 697. APPOINTEES, testamentary, of married woman, class suit on behalf of, 184, 195. necessary parties, when, 184. APPOINTMENT OF GUARDIAN, 1384— 1393 ; and see Guardian, and Master's Office. APPOINTMENT OF NEW TRUSTEES ; see Trustees, and Master's Office. APPORTIONMENT, costs of, between different funds, 1537, 1538. between different parties, 1502, 1503 ; and see Costs. APPROPRIATION, effect of, on wife's right by survivorship, 93. fund, of, personal representative not necessary party after, 206. ARBITRATOR, answer of, extent of, 247. costs, when ordered to pay, 247, 248. party to suit to impeach award, when, 248, 266. ARGUMENTS, should not be pleaded, 385. ARREARS. annuity, of, interest on, at what rate allowed. dower, of, account of, directed, 717; interest not allowed on, 717. ARREST, ne exeat, not issued against person not liable to, 1 732. nor after arrest at law 1538 ; unless for another demand, 1735. protection from, of officers, suitors, and witnesses, 667. ART, meaning of word, and terms of, judicially noticed, 3S6. publication of works of, when restrained, 1672. ASCERTAINED SUM, parties to suit for aliquot portions of, 1 78. ASSENT, personal representative, where not necessary party after, 206. ASSESSMENT OF DAMAGES. See Damages. INDEX. 1929 ASSETS, admission of, effect of, 193. discovery baned by, 447. immediate decree made for payment in case of, 193. admission of, what is not, 194. marshalling, parties to suits for, 195. receipt, by personal representative restrained, when, 1693. specific, person possessmg, when proper parties, 268. ASSIGNEE, husband, of, wife's equity to a settlement against, 82. lease, of, where lessee necessary party to suit by lessor against, 165. mortgage, of, last only necessary party, 155. pendente lite ^ usually not a necessary party, 236, 1588. made party by supplemental proceedings, 236, 1587. trustee, of, necessary party, 204. ASSIGNEES IN BANKRUPTCY, bankrupt not a necessary party to suit by or against, 121, 183, 246. costs of, 124, 440, 1470, 1471, 1525, 1526, 1537 ; and jf^ Costs. co-plaintiffs, need not all be, 185. defendants, death orjchange of, an abatement, 124; proceedings thereon, 124, 1585- estate of bankrupt represented by, 211. evidence taken before bankruptcy, used against, when, 124. parties, when necessary, 205. how made parties, when h'xakm'^iQ.y pendente lite, 124, 1585. property of bankrupt vested in, 48 ; although abroad, 49. revivor of suit by, 51, 1391 ; compelling, 51, 503, 512, 513. surplus, cannot be sued by bankrupt for, 49. ASSIGNMENT, covenant against, forfeiture on breach of, not relieved against, 1688. husband's of wife's property, effect of, 96, 98, 99, 103 ; and see Married Woman. statute of limitations, effect of, on. ASSIGNOR, chose in action, of, or his representatives, when necessary parties, 158, usually made co-plaintiff";, 158. equitable interest, of, generally not a necessary party, 165. judgment, of, when necessary party, 158. shares in unincorporated joint-stock company, of, when necessary party, 158. ASSIGNOR AND ASSIGNEE, costs, when allowed only one set in administration suit, 457, 1537. ASSISTANCE (WRIT OF), applicable, when, 664. delivery of possession to purchaser, issued to enforce, 1356. execution of, 664. order for, how obtained, and evidence, 664. preparation and issue of, 664. receiver, to enforce delivery of possession by party to, 1776. ASSIZES (TRIAL OF QUESTIONS OF FACT AT). See Issue. ATTACHED and IMPRISONED. decree, or order, for non-obedience to, 648. subsequent proceedings, 649, 650. ATTACHMENT (WRIT OF), when not bailable, 648. attornment to receiver, to enforce, 1769. decree or order, for non-obedience to, 648. bailable, not, 648 ; proceedings when bail improperly taken, 648. 1930 INDEX. ATTACHMENT (WRIT 07)— continued. execution of, 648. form of, indorsement on ; and issue of, 648. irregularity, when set aside for, 649. return to, 649, 650. documents, for not making; sufficient affidavit as to, 1844. purchase-money, for non-obedience to order for payment of, 1371, 1372. production of documents, for non-obedience to order for, 1863. witness, in case of default or contempt by, 582. ATTAINDER, civil death, when, 70. commission of, Attorney-General not necessary party, after issue of, 107. disability arising from, in case of plaintiff, 40, 46 ; of defendant, 105. ATTESTATION OF HONOUR ; see Honour (Attestation or Trotes- TION OF). ATTESTATION OF WILL, need not be alleged, 296. ATTESTING WITNESS, execution, proof of, by, when unnecessary, 559. ATTORNEY, absence of, new trial at law on ground of, 688. party, when made, 248, 1268 ; allegations of bill against, 248. not a necessary party because he has client's deeds in his possession, 249. substituted service on, of bill to restrain action, when allowed, 355- ATTORNEY-GENERAL, answer of, form of, 109, 1 10. oath put in without, iio, 460. costs of, 7 — no, 1833; and j^(? Costs. Crown, sues by, 4 — 6 ; although Crown not immediately interested, 4. on behalf of Crown's grantee of chose in action, 4. parens patriiz, on behalf of Crown as, 4, 5. illegitimate person, does not represent estate of, 162. indorsement not necessary on copy of bill served on, 350. nuisance, information, when filed by in case of, 1662. party to suit, when made, 4, 5, 105, 105 — no. attainted or convicted person, to suit affecting property of, 107. boundaries of colonies, suits relating to, 106. charities, to suits relating to, 107 — 109. Crown incidentally interested to suit, when, 105 — no. distinct Crown grants, to suits by parties claiming under, 106. grantee Crown's, of chose in action, to suit by, 4 — 107. outlaw, to suit respecting property of, 4. pa7'ens pat7i(£, to suit in which Crown interested as, 107. where title in Crown appears on the record, though no claim made, 105, 106. will, to suit to establish, where heir cannot be found, 191. signature of, required to information, 317 ; how obtained, 317. suits by, 3 — 12 ; and j^? Information, Information and Bill. suits against, 105 — no. Solicitor-General, when party to information by, no. vacancy of, during, Solicitor-General sues on behalf of Crown, no. ATTORNMENT, receiver to, I77^> I778' direction for, when inserted in order, 1 773. enforced, how, 1777, 1778. legal estate, effect on, 656. sequestrators to, 1777; how compelled, 656. INDEX. 1931 AUCTION (SALE BY), purchasers of different lots should not join in same bill, 284. AUCTIONEER, and j^^ Master's Office. party, when made, 156, 247. payment by, into Court of balance of deposit, when ordered, 1809. specific performance, not a necessary party to suit for, 247. trustee, acting as, costs of, 15 17. AUTHOR, breach of contract by, when restrained, 1681. AUTHORITY, bill, to file, must be special, 254 ; and from all the plaintiffs, 255. written, not usually necessary, 254. bill filed without, proceedings in case of, 255. delay, application should be made without, 256. evidence in support, and notice of application, 256. proceedings where fact discovered after decision, 257. defend suit, what sufficient to solicitor, 381. relator, to use name of, must be filed with information, 9. AUTRE DROIT, persons suing or defending in, not admitted in forma pauperis-, 33, 120. AVERMENT, contrary to fact, of which Court has judicial knowledge, not noticed, 14. AWARD, arbitration Acts, under, proceedings on, not restrained, 1638. arbitrator, when party to bill to impeach, 247. certainty required in allegations of bills to set aside, 303. plea of, in suit to impeach, for fraud, 247. answer in support of averments in, 247. wife's right by survivorship, effect of, on, 94. BAD HEALTH, defendant unable to answer in consequence of, allowed more time, 139. BAIL, attachment, when bail may be put in to ; when not, 649. BALANCE, account, of, offer to pay not necessary, 310. interest on, when decreed, though not prayed, 307. BANISHMENT, civil death, when, 70. BANKER, failure of, receiver when charged with loss occasioned by, 1 787 ■ BANKRUPT, abroad, bankrupt cannot sue for property abroad, 49. account, bankrupt cannot sue assignees for an, 49. agreement not make a man, breach of, when restrained, 1682. assignees, bankrupt cannot sue for property vested in, 48. demurrer that plaintiff is, 50, 122. discljarged, may sue for after-acquired property, 50- discovery, when he may file bill of, 47. dismissal of bill for non -prosecution, on motion of, 123, 505, 513. equity, when he may sue in, 47. estate of, represented by assignees, 211. law, when he may sue at, 47, 48. mortgagor, not necessary party to foreclosure suit, 1 73. party, not made a to bill for relief, unless fraud or collusion charged, 121, 122, 211, 246. 1932 INDEX. B ANKRU VT— continued. pauper, when allowed to sue as, 34. personal disability, under no, 47. answer that defendant is, 121, 122; that co-defendant is, 121. that plaintiff is, 50. redemption of mortgage by, when allowed, 49. surplus, cannot sue assignee for, 49. BANKRUPT AND ASSIGNEES, one set of costs, when allowed between, 457, 1537. BANKRUPTCY, defendant, of, pendente lite, not an abatement, 123. assignees, how brought before the Court, 124, 1585. dismissal of bill for non-prosecution in case of, 122, 505, 513. service of proceedings on after, not necessary, 124, n. (2.) — 1585, u. (6.) husband, of, effect of, on wife's right by survivorship, 100. limitations, statutes of, effect of, in case of, next friend of married woman, of, proceedings upon, 91. plaintiff, pending suit, an abatement, 51. motion for revivor or dismissal of bill on, 51, 511. or after decree for prosecution of suit or stay of proceedings, 512. supplemental order on, 51, 1585. plea of co-defendant's, 122; of defendant's, 155. of plaintiffs, 50. proof in, by husband, of debt due to wife, effect of, 95. receiver, of, discharge of, on, 1795. surety for receiver, of, proceedings on, 1 798. BANKRUPTCY (COURT OF), injunction against proceedings in, when granted, 1649. jurisdiction of, 48. BAR, disclaimer at, by counsel, in suit, 434, n. {5.) ; on petition, 434, n. (5.) BARE TRUSTEE, in general, not a necessary party, 203. BARGAIN AND SALE, enrolment of, averment of, not necessary, 297. BARRISTER, receiver, may be, 1767- BASTARD. — See Illegitimacy — Illegitimate Person. BELIEF, in answer, equivalent to admission from, 530. evidence as to, when admitted on motions, 1618, 1619. BELIEF OR OTHERWISE, sufficient answer as to facts not within defendant's own knowledge, 450. BELL, breach of covenant not to ring, when restrained, 1681. BIDDING PAPER, See Master's Office. DINGS (OPENING), 1151— 1162 ; and w Master's Office. advance of price, what necessary, 1153 — II55- application for, how made, 1158; by whom, 1151, 1152; and when, 1157. collieries, in case of, 1156. costs on, I159, I160, I161. default of applicant, proceedings on, 1 160. deposit, amount of, on, 1159. repayment to former purchaser of his, 1 159. INDEX. 193S BIDDING PAPER— fo«<'»«»W. return of, 1161. discharge of first purchaser on, 1155. effect of, 1 155. fraud, in case of, 1159. lives, in case of property held on, 1157. lots, in case of sale in, 1156. number of times it may be ordered, 11 53. ' order for, form of, 1 159. private contract, sale by, 11 53. purchaser, intending, not opened for mere benefit of, 1155. resale on, how conducted, and subsequent proceedings, u6o. sealed tender, on sale by, 1153. second time when directed at instance of same party, 1153. proceedings in case of, 1 1 60. separate applications for, as to separate purchases, 1155. 'sham purchaser, solicitor of, ordered to stand as purchaser, 1 161. BILL, I, 253—341. accompanied by affidavit, when, 313 — 316. omission of, how taken advantage of, 315. address of, I, 2, 292, 293 ; and see Address. adequate value, must be for, 271, 272. admissions by, 528, 529 ; and see Admissions. agreement contained in letters, statement of, in, 297. agreement relating to land, statement of, in, 297. allegations in, must be sufficient to found decree, 295 ; and positive, 294. except as to facts concerning which discovery is sought, 295. amendment of, 318 — 341 ; and sec Amended Bill — Amendment of Bill. authority to file, 254 — 259 ; and see Authority. bargain and sale, statement of, in, 297. certainty required in, 299 — 303 : and sec Certainty. chattel real, possession of, how alleged in, 295. claims, must not be for one of two, on same defendant, 272. conclusions of law should not usually be averred in, 303. contents of, 259. copy, authenticated, to be used at hearing /?-» confesso, 378. copy for service, 349 ; and see Service. deeds, statement of, in, 295 — 303. defendant, statement of case against, 265. different kinds of, 253, 254. documents, when stated in, 296. facts, how alleged in, 295 ; statement of those to be proved, 270, 537. ' filing of, 317. form of, under former practice, 289 ; and under present, 290. general nature of, 259. grant, deed must be alleged of matter lying in, 298. heading of, 313. impertinence in, 285 ; and see Impertinence. indorsement on copy for service, 349, 350 — 353, 360 ; anAsee Indorsement. instruments, how referred to in, 298. statutoiy, allegation of, 298. written, need not be so stated, unless required at law, 297, 299. interest of defendants must be shown, 266. latitude in cases of charities and infants, 9, 58, 309. liability of defendant must be shown, 266. matter of, 259 — 289. mortgage and bond by same defendant, must not be for one only, 272. mortgages, must not be for one of two, by same defendant, 272. multifariousness in, 275 — 285 ; and see Multifariousness. offer to do equity in, 310 — 312 ; and see Offer. 1934 INDEX. B I LL — continued. partnership accounts, for, must pray dissolution, 274 — 276. parts of, under former practice, 289, 290 ; under present, 290. plaintiff's name and address, statement of, when necessary, 292. omission of, how taken advantage of, 292 ; and see Address. plaintiff's right must be shown by, 259, 260. plaintiff's title, averment of all acts necessary to complete it, 264. plaintiffs title, statement of, 264, 265. prayer of, 269, 270, 290, 303 — 313 ; and see PRAYER, preparation of, 258. printed, must be, 316, 317 ; mode in which, and paper required, 316. privity between plaintiff and defendant must be shown by, 269. record, not of, until filed, 317. relief, proper, must be specifically prayed, 269. sanction of Court, when necessary to, 257 — 259 ; and see Sanction of the Court. scandal in, 285 — 289 ; and see Exceptions — Scandal. seisin in fee, how alleged, 296. service of, 350 — 365 ; and see Service. stamps, averment of, unnecessary, 298. stating part of, 294 — 303. technical expressions, how far to be used in, 295. time, certainty required in allegations of, 300. title, proper, must be shown by, 262. trust, allegation of, in, 297, n. (3.) whole matter, must be for, if capable of immediate decision, 272,' 273' will, allegation of, in, 298. written, filed, when, 316. BILL (AMENDED). See Amended Bill. BILL (CROSS). See Cross Bill. BILL OF DISCOVERY. See Discovery (Bill of). BILL OF INTERPLEADER. See Interpleader. BILL (ORIGINAL), consent decree obtained by fraud, impeached by, 608. decree obtained by fraud, collusion or error, when impeached on, 129, 136, n. (I.); 417, 608. definition of, 253, 254. separate account, error in carriage to,' corrected by, 1825. BILL (IN THE NATURE OF AN ORIGINAL BILL), definition of, 253. BILL (NOT ORIGINAL), definition of, 253. BILL OF PEACE. See Peace (Bill of). BILL TO PERPETUATE TESTIMONY. See Perpetuate Testimony (Suit to). BILL OF REVIEW. See Review^ (Bill of). BILL (SUPPLEMENTAL). See Supplemental Bill. BILL AND ANSWER, cause heard on, when, 521, 522. costs on dismissal at hearing, 613. evidence in such case, 521, 561. exhibits may be proved at hearing on, 521, 561. hearing on, proceedings at, 613 replication, permitted after hearing on, when, 613. withdrawal of replication to set down cause, on, 526. INDEX. 1935 BILL OF EXCHANGE. See Exchange (Bill of). BIRTH, child of, supplemental order on, 1585, u. (4). place of, when discovery as to, must be given, 3, 399. BISHOP, lunatic incumbent, when bishop necessary party to suits by, 166 — 167. sequestrator, when bishop necessary party in suit against, 166. tithes, bishop not necessary party to suit by incumbent for, 167. BLIND PERSON, affidavit of, how taken, 575. answer of, how taken, 467. BOND, and see Master's Office. exhibit, provable at hearing, 561. interest, what allowed on ; if security for annuity, obligee of, or his representative, when necessary party, 158. proves itself if thirty years old, 554. security for costs given by, 27 — 32 ; and see Costs (Security foe). BOOK (TITLe'oF), infringement of right to, restrained, 1673. BOUNDARIES, colonial, bill to settle, 15 ; Attorney-General necessary party to, 105. commission to settle, 714 — 715. conveyances, mutual, not directed by decree in suit to settle, 715. costs of suit to settle, 715. decree for commission to settle, not a final decree, 616. proceedings under, 714 — 715. further consideration, reservation of in suit to settle, 715. parties to suits to settle, 167, 219. setting out, where lands cannot be separated, 714, 715' BRIEFS, contents of, and counsel's notes in, how far privileged, 406, 1857. motions, on hearing of, 1616, ji. (3). petition, on hearing of, l4S7i "• i-"^]- special case, on hearing of. costs of, 1627, n. (3) ; where prematurely prepared, 1627, u. (3). minutes, to be left on bespeaking, 630. BRITISH SUBJECTS, resident abroad, rights of their descendants, 42. resident in enemy's country, and trading within license, may sue, 44. seeus, if trading without license, 44. BROKER, privity not destroyed by employment of, 298, 269. unlicensed person acting as, in London, must give discovery, 400. BUILD, breach of covenant not to, when restrained, 1681. BUSINESS (PLACE OF), of solicitor, to be written or printed on writs, summonses, and other pro- ceedings, 361 — 262. in agency cases, that of pyncipal solicitor also, 362. change of, notice to be given at Record and Writ Clerks' Office, 365, n. (4) ; and sse order 49. service at, of proceedings not requiring personal service, 363. CANADA, receiver of property in, when appointed, 1765. 1936 INDEX. CANAL, tolls, receiver of, when appointed, 1761, 1765. CANONRY, receiver of, when appointed, 1 764. CASES (FOR OPINION OF COUNSEL), production, when privileged from, 405 — 407, 1856. exceptions, where plaintiff and defendant jointly interested, 1856. or in suits between ctstui qtte trusty 1856. CAUSE, showing, against decree by infant, 58, 129 — 132 ; and see Day to Show Cause — Decree. CAUSE BOOK, costs, when cause struck out of, 614. Registrar, kept by, 607. setting down cause in, 607. CAUSE PAPER, Registrar, made out by, 607. CERTAINTY, answer, in statement of defendant's case in, 443. bill, in statements of, 299. objection for want of, how taken, 300, 303, 396. CERTIFICATE, examination of married woman, of, 75. examiner's, of default or misconduct of witness, 580. expert, of, called to assist Court, how regarded, 613, 614. partition, of, 7°^. solicitor, of, on information, 317. CERTIFICATE (OF COUNSEL). See Counsel. CERTIFICATE (RECORD AND WRIT CLERKS'), answer, of filing of, conclusive as to time of, 470. bill filed, of, on application for injunction, 1509 ; for ne exeat, 1545- proceedings in cause, of, on motion to dismiss for want of prosecution, 503. CESTUI QUE TRUST, aliquot portion of ascertained sum, one may sue for, 178. all accounting persons necessary parties to suit, by, for account, 204. breach of trust, may proceed against one trustee for, when, 224. concurring in, necessary party to suit to repair, 182, 184, 225. decree for execution of trusts may be obtained by one, but others must be served with notice of it, 184, 342. foreclosure suits, when represented by tnistees, in, 1 73. life-tenant, entitled to sale to raise costs, 1317. ne exeat issued at instance of, 1734- party to suit by trustee against co-trustee, not a necessary, 182. or to recover fund improperly lent, 182. unless he concurred in breach, 182, 184. party to suit by trustee, when a necessary, 179, 181 — 183. party to suit against trustee, when a necessary, under former practice, 2t2 ; under present, 214. dispensed with formerly, because numerous, when, 212. production of documents by trustee, not ordered in absence of, 1849. redemption suit, how far represented by trustee in, 215. trustees represent, when, 170, 171, 181, 185, 2i», 213, 324, n. (6). not if trustees' interest, conflicting, 182 ; or in contests inter se, 182. waste by, when restrained, 1653. CESTUI QUE TRUST AND TRUSTEE, only one set of, costs, allowed between, when, 1537. INDEX. 1937 CHAMBERS, PROCEEDINGS IN THE JUDGE'S, 719—736. general course of proceedings at Chambers, 719. referee in Chambers, 820. order 210, as to, 720. duties and powers of, 720. orders 560 to 567, as to, 720, 721, 722, 723. order, 198, as to the course of proceeding, 723. " 200, as to, 724. " 201, as to, 724. " 540, 724- orders relating to the sittings of the Court, 725, 726. what evidence may be used at, 727. attendance of parties or witnesses, how procured, 727. production of documents, may be ordered, 727. orders 210, 208, and 205, as to, 728. CHAMPERTY, demurrer, because discovery will subject defendant to penalties of 398. CHANCELLOR, protector of settlement, when, 1857, 1858. CHANCERY (COURT OF), infants, jurisdiction of, over ; see Infant. information, when filed in, 3 — 12, 1663 ; and see Information. proceedings in, when admissible as evidence, 548. CHANCERY (OFFICER OF THE COURT). See Officer of the Court of ' Chancery. CHAPEL (DISSENTING), appointment of minister of, when restrained, 1680. CHARGE, general, evidence of particular facts when admissible under, 538. parties to suits to establish, 232, 234, 235. CHARGE AND DISCHARGE. See Master's Office. CHARGES AND EXPENSES. See Costs, Charges, and Expenses. CHARGING PART, of bill, 290 ; now usually included in stating^part, 290. CHARITIES, , Attorney-General, when necessary party to suit relating to, 107 — 109. costs of suitsrelating to, 320. 10 — J2, 1538. definition of, 1883; heir of grantor, when necessary party to information for, 217. heir, costs of, in suit relating to, 1472, 1542. information for distinct, when multifarious, 282, 283. latitude allowed, rectification of mistakes in cases of, 8, 9, 309^ 310. vesting of legal estate in the lands, 1907. payment out of fund belonging to, consent of Commissioners to, when neces- skry, 1827. relators in information, i-elating to, 6j 11, 12 ; and sec Relator. Solicitor-General, when defendant to information, relating to, 1 10. suit on behalf of, when commenced by information, 2, 3, 4. to-n--tenants, all, not necessary parties to suits on behalf of, 231. trustees, form of order for payment of interest to, 1830. visitor of, power of, 1886. CHARITIES (SIR SAMUEL ROMILLY'S ACT), 1730, 1735. CHARTER, corporations established by, how they sue, 16. 1938 INDEX. CHATTEL, deposit of specific, in Court, when directed, 1818. parties to suits by pawnee or depositee of, 182. sale of specific, when restrained, 1494. CHATTEL REAL, married woman, of, assignment of, 99 — 102 ; and /« Married Woman. possession of, how alleged, 295. CHILD, illigitimacy of, parent when not bound to give discovery as to, 399. CHILDBEARING, age of, woman, when considered past, 1825, n. (4). CHINA, receiver of property in, where appoint^, CHOSE IN ACTION, assignor of, when a necessai-y party, 158 ; when not 165. usually made co-plaintiff, 159. married woman, of, assignment of, 88, 94, 96 — 98, 103, 1717 ; and su Married Woman. sequestration, effect of, upon, 652. suit for, by Crown's grantee, 4. , CHRISTMAS VACATION, commencement and termination of, 327. CHURCHWARDENS, revivor on change of, 1592. CIVIL DEATH, what is, CIVIL LAW, judicially noticed, 386, CLAIMANTS (UNDER DECREE), and see Master's Office. appeals by, 1558. costs of, 348, 1553. mortgagee, under, costs of in refiemption suit, 215. motion by, 1608. CLAIMS (UNDER DECREE), and see Master's Office. CLASS. inquiry as to, where directed, 619. liability of acting members of, 228. principle of allowing one of a class to sue on behalf of himself and the others, 151. members having opposing interests must be made defendants, 200 ; or if several classes, some of each class added to represent the others, 200. special case, principle not applicable to proceedings by, 1866. instances in which principle acted on, 193, 195, 196, 197, 198. common benefit, where suit for, though disapproved by majority, 342. company, by one member of incorporated, 201. creditor, by one, on behalf of others, 201. creditor, by separate, on behalf of joint and separate creditors, 194, 195. creditors under, rust deed, by one of several. crew, by one of ship's, for prize money, 196. institution, by one of several subscribers or proprietors of an, 196. landowner, by one of several, in suit for modus, 195. legatees, by one of several, 195, 342. next of kin, by one of several, 195, 342. parish, by one of the inhabitants of a, 195. partnership, in cases of, 199. INDEX. 193& CLASS — contifUied. trading concern, by one of several joint proprietors of a, 195, 196. testamentary appointees of married women, by one of several, 184, 195, residuary legatees, by one of several, 183, 342. waste, in case of, 341. instances in which principle not acted on, 196, 197, 200. advantageous to all, where suit not necessarily, 197. claim not necessarily reasonable with regard to all, 197. partnership, where dissolution sought, 196, 199. relief prayed is not beneficial for all, 197. suits against, when all members need not be made parties, to, 228 — 230. ccstuis que trusts, suits against, 212. charity, to suit by, against ^^^-re-tenants, 230. joint-stock companies, to suits against, 228 — 230. lords of manors, to suit as to rights of common by, 229. parishioners, to suit to enforce contract on behalf of, 228. parsons, to suit by, for tithes, 229. peS,ce, to bill of, by city of London, to establish right to duties, 229. tradesman, to suit by, against club committee, 228. suits against, where all the class held necessary parties, 231. terre-t&Vi'sxA% in suit to establish rent-charge, 231. where claims of absentees not homogeneous with those present, 231. CLASS (SUIT), amendment, leave for, when given at hearing of, 202, 330. dismissal of bill, eftect of, 197. dismissal of, on satisfaction of plaintiff 's demands and costs, 193. dismissal of bill on plaintiff's application, 197, 484, n. (i) after decree, not ordered even by consent, 197, 487, 488. injunction in, form of, 1701. inquiry as to, when directed in suit by one of a, 176. misjoinder, suit not dismissible for, 251. plaintiff, description of, in 202, 294, 330, 331. plaintiff must personally have good cause of suit, 201. and sue bona fide for the benefit of the class, 202, n. (3) plaintiff has dominion over suit until decree, but not after, 196 — 197, 487. staying proceedings in, after decree, 488. CLERGYMEN, communications to, not privileged 410. CLERICAL ERROR, correction of, in answer by amendment, 472, 478. bill, in, by amendment, 325. decree or order, in 640. 1 bill of review not necessary for, 1427, 636, 937. demurrer in, 425. CLOSE DAYS, not reckoned in computation of time, when, 288, 161 5, 1616, 1626. CLUB, . members, when necessaiy parties, 228. CO-DEFENDANT, answer, when read against co-defendant, 530 — 531 ; in interpleader suits, 531. bankruptcy of, plea of, 122. evidence taken in another cause, when admissible against 551. injunction, when granted against, 1636. ne exeat, when granted against 1 740. production by, not ordered before decree, 1846. receiver, when granted against, 1768. 1940 INDEX. COHABITATION, unmarried woman not bound to give discovery as to, 399. wife declining, when not entitled to a settlement, 82. CO-HEIR, administration decree, at instance of, without serving others, 177, 178 — 342. COLLIERIES AND MINES, manager, when appointed of, 1761 — 1763, 1800. opening buildings in sales of, 1 1 56. COLLUSION, affidavit of no, in interpleader suits, 315. agents, arbitrators, or attornies, charged with, when made defendants, 247—249. allegation of. general, insufficient, 268 — 269.' bill dismissed on account of, with costs, charges, and expenses, 1545. cause against decree, how shown as, by infant, 136. creditor or legatee may sue debtor to estate, in case of, 268, but personal representatives a necessary party, 158, 205. debtor to estate, suable on the ground of, 158. decree obtained by gross, impeachable by original bill, 136, n. (i). COLONIAL GOVERNMENT, may sue in this country, 15. COLONIES, boundaries of. Attorney- General a party to suit relating to, 106. ne exeat against person domiciled in, 1737. will proved in, establishment of, 556. COMBINATION AND CONFEDERACY, charge of, now omitted, 291. COMMITTAL, injunction or restraining order, remedy for breach of, 17 10. receiver, for disturbance of possession of, 1777. witness, of, for contempt, 581. COMMITTEE (OF IDIOT OR LUNATIC), answer of idiot or lunatic put in by, 138, 140. heading of J and jurat to, 469. oath or signature, how put in without, 462. ne exeat, granted on affidavit of, on behalf of lunatic, 1738, 1744. new, appointment of, supplemental order on, when a defendant, 139, 1585 ; where plaintiff, 68. party to suit on behalf of idiot or lunatic, 67 ; usually co-plaintiff, 68. party to suit against lunatic, 138, 205 ; usually co-defendant, 138. unless a plaintiff, or having adverse interest,' 138. sanction of Court, to suit by, 68, 258. or defence, 138 ; or deviation from ordinary course of practice, 139. special case, concurrence in bo, 1 681. COMMON (RIGHT TO), parties to bill relating to, 229. COMMON LAW, discovery at, 1649. equitable defences at, 1649. extension of jurisdiction of, jurisdiction in Chancery not abrogated by, 390, 1649. injunction, when issued at, 1665, 1666. patent cases, account, injunction, and inspection obtainable at, in, 1669. COMMON LAW SIDE OF THE COURT OF CHANCERY, proceedings in, formerly entered in French or Latin, i. INDEX. 1941 COMMON SEAL, answer of corporation aggregate pat in atider, 114, 460, 467. proceedings where custodian of seal refuses to affix it, 1 14. COMMONS' (MEMBER OF THE HOUSE OF). See Parliament (Mem- ber of). COMPANY (PUBLIC), directors of, when they may be sued by public officer, 19, 20. individual member of, when he may sue on behalf of himself and the others, 201 ; when he may sue directors or company, 19, 20. public officer, when it sues by, 19 ; is sued by, 20. registered, how it sues and is sued, 20. service of the bill upon, how effected, 352. COMPETENCY (MENTAL)^ inquiry as to defendant's, 139. COMPROMISE, application for compromise of suit, how made, 1605. costs, cause not heard on question of, after compromise, 489, 1468. issue, effect of compromise of, 699. setting aside, on application of one plaintiff, effect o^ 494. CONCURRENT INTERESTS WITH PLAINTIFF, persons having, when necessary parties, 151 — 202. CONCURRENT SUIT (STAYING PROCEEDINGS IN), 491, 494. administration suits, after decree in one, 491, 495. creditor's suit, when not stayed till executors have answered, 493. identical, terms, when suits not identical. 491, 492. residuary legatee's suit preferred to executor's, 492. snatching decree in case of, 493, 494. application, how and by whom made, 492. conduct of suits, to whom given, 493. costs, in cases of, 492. infants' suits, in cases of, 55, 490. CONDITIONAL ORDER, consequence of non-performance of the condition, 465. CONDITIONS OF SALE. See Master's Office. CONDUCT OF CAUSE, administration suit commenced in Chambers, of, 734. concurrent suits, in case of, 493, 494. revivor, effect of, on 1584. CONFEDERACY, icharge of, 290 ; now omitted from bill, 291. CONFESSIONS, pleadings, must be noticed in, 540 — ^541. CONFIDENCE (PROFESSIONAL). &? Professional Confidence. CONSENT, authority of counsel to give, 608. decree by, appeal from, not allowed, 608, I5SS- impeached by original bill, 608. not by bill of review, or bill in nature of bill of review, 608. married woman, of, to payment of her fund to her husband, 72 — 82. new next friend, of, to act, how proved in case of infant, 61. of married woman, 90. CONSENT CAUSE, 608. 99 1942 INDEX. CONSIGNEE, appointed, when, and how, 1766, 1800. interest on balance, when allowed, 1801. priority of, for payments sanctioned by the Court, 1801. CONSOLIDATION OF SUITS, , concurrent administration suits, in case of, 491, 492. infringement of patent, of suits to restrain, 280, n. (2), 494. CONSPIRACY, ' discovery of facts amounting to, must be given, when, 399, 400. CONSUL, resident abroad on service, not required to give security for costs. 22. trading, resident in enemy's country, cannot sue, 43. CONTEMPT, abatement, effect of, on process of contempt, 1593. partial, process of contempt, when issuable pending, 1594. total, process of contempt pending, irregular, 1595. clearing, 664, 1724, 1725. accounts, when for not bringing in. See Master's Office. decree or order, when for disobedience to, 648, 649, 664. staying proceedings, until contempt cleared, 1 723. costs of, 468 ; and see Costs, 1725 — 1727. staying proceedings, when plaintiff in contempt for non-payment of, 490. iie bene esse, examination when defendant in, 589 ; order for, 590. decree or order, process of contempt for disobedience to, 642 — 664. discharge of process of, for irregularity, 664, 1778. application for, how made, 1778; when made, 1730. effect of issue of process of, on proceedings in cause, 664, 1720 — 1723. application by contemner, usually a bar to, 1607, 1720, 1721. rule only applies to voluntary applications, 1721. exceptions to the rule, appeals, 1723. another suit, applications in, 1721. attachment for want of answer, issue of, 1 722. discharge for irregularity of contempt process, application for, 1722, 1723- notice of motion may be given, though motion cannot be heard, 1723. opposition to special application against contemnor, 1722. pauper, application for leave to defend as, 1 72 1. renewal of previous application, 1721. scandal, for removal of, 1723. taxation of costs, 1 723. hearing of cause, contempt of plaintiff not an objection to, 611. irregular, action against person acting under, restrained, 313, 1636, 1729. costs occasioned by, payment of, 1 729, pauper, process of contempt at instance of, must be signed by his solicitor, 37- discharge of, on death of sole plaintiff, 1728. motion by, for discharge, on revivor of the suit, 1594, 1595. revivor, issue and resumption of process of contempt after, 1595. service, in matters of, must be personal, 361. affidavit of service, effect of irregularity in, 577. special, punishment for, 667. waiver of, what is, 664, 1727— 1729 ; and ja» Waiver. CONTEMPTUOUS WORDS, against Court, or process thereof, punishment for, 667, 1721, u. (7), CONTINGENCIES, payment out of fund subject to, on what tenns directed, 1825. CONTINGENT INTEREST, persons having, when necessary parties, 176, 177. suit to secure, costs of, 1530. INDEX. ' 1945 CONTINGENT REMAINDERMEN, intermediate, when necessary parties, 222. title-deeds, inspection of, cannot sue for, 261. trust property, may sue to secure, 261. CONTRACT, lunatic, by, when set aside, 69. married woman's separate estate, bound by her, 149. plaintiff claiming by, need not state title fully, 264. sub, person entitled under, when necessary party, 157. CONTRIBUTION, parties to suits for, 226, 227. CONVERSATIONS, admissions, used as, when they must be pleaded, 541. CONVEYANCE, and see Master's Office. mutual, on partition, 710. purchase under decree, on, 1355 — 1357- certificate of approval of, 1 363. delay in preparation, or settlement, remedy for, 1363. execution of, how enforced, 1365. partic; to, 1361. preparation of, 1361. settled by Master, when, 1361 ; purchaser's costs, where, I36i_ statement of, in bill, 296, 298. CONVEYANCER, communication to, not privileged, 410. CONVEYANCING COUNSEL. See Master's Office, CONVICTION, disability arising from, in case of plaintiff, 46 ; of defendant, 105.. CO-OBLIGORS, parties to suit for contribution, when necessary, 226, 227. if numerous, some may represent others, 227, 228. CO PLAINTIFFS, accountable to each other, persons who are, should not be, 192. nor devisee and heir-at-law, 191. nor settlor and purchaser, in suit to avoid settlement, 191. assignees of bankrupt need not all be, 185. assignor oi chose in action usually joined as, I59> bankruptcy of, motion for revivor and dismissal of bill on, 52. co-executors need not all be, 185. creditors of same debtor may be, 192. death of, before decree, who entitled to revive on, 1583. motion for revivor or dismissal of bill on, 511. devisee and heir-at-law should not be, 191. disavowal of suit by, proceedings upon, 257, 485. infant, when leave given at hearing to amend, by making defendant, 332. interests of, need not all be equal, 284, marshal assets, simple contract and speciality creditor should be, 195. persons not interested, or having separate and distinct, interests, should not be, 251. repudiation of suit by infant co-plaintiff, 63. settlor and purchaser should not be, in suit to set aside settlement, 192. COPY OF THE BILL (Process by service of, on Formal Defendants)^ 349—365- prayer of bill, 290, 291, 312. 1944 INDEX. COPYRIGHT, abridgment, when not an infringement of, 1670. alien, of, when protected, 41. blasphemous, immoral, or irreligious publications, in, not protected, 1669. extracts, when not a piracy of, 1670. injunction, in cases of, principles on which granted, 1667, 1668. issued, without ascertaining the amount of the piracy, when, 1671. whole work, extended to, when, 1671. perpetual, when made at hearing, 1707. international, 41. piracy of, how ascertained and detected, 1670. quotations, when not a piracy, 1670. road-book, piracy of, restrained, 1670. separate bills necessary for each piracy, 280. title, affidavit of, contents of, 1669. CORPORATION, address of, statement of, not required in bill, 293. affidavit accompanying bill of, by whom sworn, 316. aggregate, answer of, 115. books and manuscripts must be searched for information, 115. common seal, put in under, 115, 460, 467. proceedings when custodian refuses to affix it, 115. ' proceedings in default of answer, 374. bill, service of, on, how effected, 352. injunction or restraining order, remedy for breach of, by, 1713. service of writ of, on 1702, n. (3). payment out of fund belonging to, form of order for, 1831. pro confesio, bill, when taken against, 374. , production of documents by, affidavit on, by whom made, 1 841. corporate name, sue and is sued by, 16, 112. foreign, suits by, 19 ; sei-vice of notice of motion on, how effected, 1614. foundation, sue and sued by name of, 19, 112. grant to, by statute, valid, though true name not used, 1 6, 17. head of, a necessary party to suit by or against, 16, H2, 142. but need not be called by his name, 1 7. death of, not an abatement, 1 7. suit in name of head not permitted, unless specially authorized, 16. impeachment of transactions effected in its own name by, 1 7. individual members not necessary parties, and need not be named, 17, 112. member or officer of, may be made defendant for purpose of discovery, 112, 113,246, 247, 304 ; secus, if a mere witness, 114. prescriptive name, when it sues and is sued by, 16, 112. seal of, thirty years old does not prove- itself, semble, 555. sole, must show in what right he sues, 17 — 18. death of, an abatement, 18 ; who entitled to revive, on, 18, 1389. defends suit like private individual, 115. payment of income to, form of order for, 1584. CORRUPT MOTIVES, imputation of, when not scandalous, 286. CORRUPTION, award, setthig aside, for, 247. plea of arbitrators to bill to set aside, form of, 247. COSTS, 1464—1543. abandoned proceedings, stay of subsequent proceedings for same object, until payment of, 489, 490, 1468. accoiini, in cases of, 1487, 1488. apportionment of costs in suit for, 1502. administration, of suit for, 1510, 1511, 1526 — 1539; INDEX. 1945 COSTS— continued. administration, costs of, first charge on fund, 1510. general estate, paid out of, 1530, 1535. lapsed or revoked legacy, not thrown on, 1 534. mortgagee, where suit instituted by, 1478. order of payment of, when estate insufficient, 1527, 15,28. retainer of personsl representative has priority over, 1529, 1818. s^cus, retainer of devisee subject to charge of debts, unless plaintiff proceed? after notice of claim, 1529. specific legacies not liable to, 1533, 1534. undisposed of property, not thrown upon, 1533, 1534. affidavits of, not allowed, unless expressed in first person, 572. agents, of, when allowed, 1511. amendment of bill, of, 325, 326. course, under order of, 325. defendant's occasioned by striking out part of bill, 340. demurrer, where amendment after, 427. irregular amendment, occasioned by, 338. payment of, 337, 337, 11. (3). special, application for costs of, 329. answer, costs occasioned by evasive, 480. improper, by guardian a(/ //fern, 128, 129. separate, costs of, where filed by same solicitor, 456 where defendants' interest joint, 456, time for, costs of application for enfergement of, 465. ansvrer, reading, by defendant on question of, 531, 1470, 1471, 14*^7. appeal for, not permitted, 1558, 1561. exceptions, when given by Act of Parliament, 1561. estate or fund, where costs chargeable on, 1559, 1560. principle, in matters of, 1558- relief, when payment of costs part of, 1559- rule not evaded by coupling an unfounded ground of appeal, 1561. appeal motions, or petitions, of, 1575, 1624, 1630. when new evidence adduced, 1575, 1624. 1630. appeals and rehearings in Chancery, costs of, 1578, 1579. costs in the cause, when made, 1578. not included in, unless specially mentioned, 1578. dismissal of appeal, in case of, 1578 ; where recommended below, 1579- new evidence, how affected by, 1578, omission, to provide for rectification of, 1578. respondent, when ordered to pay, 1578. application for, shouM^be made at hearing, 1 509. apportionment of, between parties, 1507 — 15°9- account, in matters of, 1 501. dismissal of bill, in case of, 1503 ; when dismissal partial, 1503. issues found different ways, in case of, 1502. specific performance suits, in, 1503, 1504. apportionment of costs between different funds, I537> 'SS^- charities, where one scheme settled for several, 1538. arbitrators, when ordered to pay, 248, 249. assignees in bankruptcy, of ; of defaulting administrator, 1527. personal liability to, 1525. strangers, in suits with, 1470, 1471. assignor and assignees, one set of, when allowed between, 457, 1537- Attorney-General, of, 7, no, 1542. charity cases, in, 1 541. auctioneer, of, where a trustee, 1517. Bank of England, costs of, when thrown on particular legacy, 1536. bankrupt and assignees, one set of, when alio wed between, 457, 1537. bill and answer, costs on dismissal at hearing on, 613. bill, original, when read after amendment on question of, 529. 1946 INDEX. CO STS — continued. boundaries, costs of suits to settle, 715. cause, what are costs in the, 1466, 1467. costs of motion, when, 1466, 1621, 1623. cause paper, costs of cause struck out of, 614. cestui que ti~ust and trustees, one set of, where allowed between, 456, 1537- .charity suit, costs, upon what principle taxed in, 10, n, 1538, 1542. claimants, under decree, 348, 1532. under mortgagee in redemption suit, 215. ■class, costs of members of, coming in under decree, 348, 1532. compromise, cause not heard on question of costs after, 489, 1469. concurrent jurisdiction, costs in cases of, 1500. concurrent suits, costs of. where stayed, 492. petition of, settlement, by, 1626. separate, of, when allowed, 457. creditor restrained from prosecuting action, of, 1634. creditor, of suit by, 1526, 1528, 1543. (Creditor's suit, plaintiff's costs taxed as between sohcitor and client, when, 1542 ; where no available assets, 1528. contribution to, by satisfied creditors, 1528. extra costs, when allowed in, 1543. single creditor, of suit by, 1526. Crown, costs of suits by or against, 8. de bene esse^ costs of examination, 595. ■debts, costs of proof of ; see Master's Office. delivery up of securities, of suits for, 1475. demurrer, on allowance of, 431 ; if partial, 432. with leave to amend, 430. reversed, where allowance of, 432. demurrer, on overruling, 434 ; on reversal of overruling, 432. demurrer oretenus, on allowance of, 431 ; with leave to amend, 431. demurrer of, when not set down, 428. demurrer by witness, of, 597 — 598. disclaimer, of defendant not putting in, in a proper case, 434. disclaiming defendant, when allowed, 438—439 ; when not, 438 — 439. when ordered to pay, 437. , discovery, bill of, order for payment of costs of, 507, 508. discretionary with Court, 1465. dismissal of bill, on, in case of abatement, 510 — 513. bankiTiptcy, by, of plaintiff, 51, 512; of co-defei)dant, 512. death, by, of defendant, 511 ; of plaintiff, 510 ; oia co-plaintiff, ^\l. marriage of female sole plaintiff, on, 511. dismissal, defendant when ordered to pay costs on 1500. disniissal of bill on plaintiff's own application, on, 483 — 487. co-plaintiff, by, 485. dismissal with costs for non-prosecution against some defendants, after, 485. pauper plaintiff, by, 37, 505. pauper defendant, against, 37, 121. repudiatidn of suit by plaintiff, in case of, 255. unnecessary defendants, against, 250 ; without prejudice as to ultimate burden, 485. dismissal of bill for want of prosecution, on, in discretion of Court, 504. merits of case not considered in deciding upon, 505. bankruptcy of defendant, on, 123, 124, 505, 513. company being wound up, when, 509. costs which are included in order, 509. when defendant knows due diligence has been used, 505. INDEX. 1947 COSTS — continued. irregular notice of motion for, of, 501. notice of motion intercepted by step taken by plaintiff, of, 497, 498. pauper, where plaintiff a, 37, 505. dismissal of bill on payment of costs, and submission to plaintiff's demands, 487, 1468. creditor's suit, in, 194. where several defendant's, 488. where discovery sought, 488. dismissal of bill, without costs, because defendant might have demurred, 260, n. (4), 382, 1484. dismissal of bill, without, on waiver of trial of question at law, 1500. dismissal of bill, taxation and recovery of, on, where no reference, 509. dower, of suit to assign, 717. election, in cases of, 514, 515, 516. enrolment of decree or order, 636 ; of application for, 635. improper or unnecessary, where, 527, 1484. not proving will, 1526 ; a.-nAsee personal representatives, infra. foreclosure, of suit of, 1476 ; of motion to advance; 1622. former suit for same matter, staying proceedings on non-payment of, 35, 489, 490. amount of costs must be first ascertained, 490. dismissal of bill on final default, 490. fraud, bill claiming on ground of, dismissed with costs, 1476, 1492, 1493. groundless allegation of, party introducing, must pay costs of, 1492, 1493. fund, payment of, out of, when ordered, '1339, 1465, 1510. gross sura, when directed to be paid for, 1468. guardian, of, oh application for maintenance, 1399, 1537' hearing of 'cause, costs of the suit only disposed of at, 484, 1468. hearing, original costs usually not given at, 1464. when given, include subsequent costs, unless excepted, 1464. heir, of, allowed usually, 698, 699, 147 1. heir, when not allowed, 699, 1472. cross bill unnecessarily filed by, in case of, 1473. insanity, where case of, unsuccessfully set up by, 699, 1472, 1473. perpetuate testimony in suit, to, 1472- heir, when given against, 699, 1473. refusal to convey under ancestor's contract, on, 1474. spoliation, secreting, or vexatious contest of will, in case of, 1474. unsuccessfully impeaching will as plaintiff, 699, 1473' secus, when he could not proceed at law, 1474, heir, of, taxed, on what principle, in administration suit, 1543. in charity suits, 1472, 1541. husband and wife, of suits between, 1499. one set of, allowed between, when, 457, 1499, 1537- impertinent matter, occasioned by, 287, 288. affidavits, in, 573. application for, when to be made, 287. incumbrancers, of, 1475 — 1484 ; one set of, when allowed between, 1537 ; and see infra, mortgagees, infant, of suits on behalf of, 63 — 67. next friend, when bill filed without, 54. repudiation of suit by infant, in case of, 62, 63. infants' legacy, of suit for, 65, 1533. infant, of, in partition suit, 711 ; how raised, 711, n. (3). informations, of, 7> 8, 10. injunction of motion for, 1705. intercepted by amendment, 338, 1623, 1699. dissolution of, useless application for, 1705. interlocutory proceedings, of, when costs in cause, 1466, 1467. reservation of costs of, form of, 1467, 1468. 1948 IJTDEX. COSTS — continued. defendant may be ordered to pay direetly to co-defendant, 1 503. order for payment of, form of, 1503. legacies charged on real estate, costs of suit to raise, when estate insuffi- cient, 1529. legatee and incumbrancers, only allowed one set, when, 1537. legatees, suits by, 1531, 1532. plaintiff's costs, when taxed as between solicitor and client in, 1543. life, of tenant for, how raised. 1538. of application for payment of income to, 1829. lunatic, costs of, in partition suit, how raised. 711. married women, of suits on behalf of, 91. partition suit, costs of, how raised, 711. mortgagee, costs of, 1475 — 1484. administration suit, adopting, 1480, 1528. possession, remaining in, after payment of principle and interest, 1483, 1484. priorities of suit to ascertain, 1479, 1480, 1528. sale, in cases of, 1479 ; where suit for administration also, 1479 ; in case of equitable mortgage, 1479. mortgagee, costs of, allowed usually, 1475 ; and of all persons claiming under him, 1476. rule extends to both foreclosure and redemption suits, 1476. extra, should be mentioned in decree, 271, 1477, 1478. instances where allowed, defending title, incurred in, 1476, 1477. dismissal of bill in case of, except where great hardship, 1477. lunatic mortgagee, when, 1478, 1479. recovering mortgage property, incurred in, 1477. mortgagee, costs of, when not allowed against estate, 1478 — 1479. adverse claims to mortgage, in case of, 1478. assignment by mortgagee after decree, in case of, 1478. insolvency of mortgagee after bill filed, in case of, 1478. lunatic mortgagee, when 1478. mortgagee, costs of, when disallowed, in case of misconduct, 1480, 1483. but it must be positive, 1482, 1483. mere claim of too much, or snggestion of doubt, not sufficient, 1480. mortgagee, costs, when given against, 1481, 1482. fraudulent foreclosure, insisting on, 1482. loss of deeds, occasioning suit by, 1482, 14&3. tack, attempting to, 1482. tender of principal and interest, refusing 1481. motions, of, 1621 — 1624. abandoned, 1468, 1616, 1622. application for, when made, 1622. dismissal for non-prosecution, not obtainable after. 509. payment of, necessary, before renewal of motion, 1468; 1623. advance of foreclosure suit, for, 1622. appearance of party served, but not interested, of 162 1. of party not served, at request of applicant, 1621. appearance by solicitor of deceased party, of, 1621. costs in cause, when, 1466, 1467, 1620, 1621, 1623. disability, on behalf of person under, where no next friend named, 1613. ex parte, of, 1 62 1. intercepted, by step taken by other side, 1622. reservation of, 1620. separate motions which might have been joined, 1612. successful, where motion partly, 1621. successful party, when ordered to pay, 1622. taxation of, without reference, when refused with costs, 1622. unsuccessful, 1622. next friend, costs of, in suits on behalf of infants, 62 — 66. INDEX. 194 9» COS TS — continued. allowed, if he has acted bona fide, 64. due diligence, not allowed costs of suit instituted without using, 65. extra costs, when allowed, 66. improper suit of, not allowed, 65. liability of, to pay costs, 62, 63. mistake, not deprived of costs in consequence of, 64, 65- next of kin, in charity cases, 1542. coming in under decree, 348, 1532. suit by, of, when residue exhausted, 1528. unsuccessful, when not ordered to pay costs, 1531. notice of the decree, of persons served with, 342, n. (7), 348. one set of, when allowed, 456, 457, 1499, 1515, 1537 ; form of order for,. 457. 1536. opening biddings, of applicant, when outbid, I l6i. purchaser, former, 1 1 58 ; special, costs incurred by him, 1.1 59. order for payment of, form of, 1509 ; when payable by one defendant to- another, 1502. persons not parties should be specifically mentioned in, 1509. , without prejudice to ultimate liability, when expressed to be, 1509, .1 sag- parties, costs where objections taken, for want of, 243, 614. partition, of suit for, %v. disability, how raised, when parties under, 711. lessee of share, of, 711. party and party, taxation of, as between, 1539, 1540. costs taxed as, unless otherwise directed, 1509 ; and see Taxation. pauper, right of, to receive, 37, 121. payment of, by one party to another, 1470 — 1509. security for costs, in cases of, 30, 31. taxation, where no formal direction for, 509, 1622. perpetuate testimony, of suit to, 595. personal representatives in administration suits, of, 1511, I525> 'S^^- creditor's suit, in single, 1526. real estate, not allowed costs out of, though no personal estate, 1526.. secus, administrator ad litem, 1526. reviving suit, costs of, 1525 ; and see infra trustees, petitions, of, 1629, 1630. appearance of person uninterested, but served, of, 1629. appearance without service, of, 1629. two petitions for same object, of, 1630. imsuccessful opposition, of, 1529. prayer for, when plaintiff entitled to no other relief, 304. effect of, on right to discovery, 435. priorities, of suit, to ascertain, 1479, 1480, 1528. Probate, in Court of, postponed to costs in Chancery, 1511. appearance on application for payment out of purchase money, of, 1370, receiver, of, 1510. abandoned proceedings, not allowed costs of, 1782. discharge of, costs of, 1796. joumies, when allowed, 1782. motion for waived by amendment, of, 339. passing account of, 1788. rectification of settlement, of suit for, 1538. redemption suit, of, 1476. relator, of, 10, 12; allowed, when, 11. as between solicitor and client, II. extra costs, when allowed, 9. liability of, to pay, 11. replication to disclaimer, costs occasioned by, 437, 43?- re-sale, on default of purchaser, 1373. 1950 INDEX. ■COSTS — continued. restoration of bill, not directed for purpose of raising question of, 506. result, costs generally follow; 1470. reversionary interest, of suit to set aside sale of, 1475. revivor, costs not usually allowed for, 1590, 159 1. exceptions to rule, 1590, 1591 ; and see Revivor. scandal, of, 289. second suit, of needless, 1485, 1486. second time, when cause set down, 614. separate account, when fund paid to, or severed, 1535, 1829. sequestration, of, 663. ' set-off, of, 1507. debtor of, against his debt, 1507. married woman, of, against amount due from husband, 1507. in one suit not set oif against costs in another suit, 1507. solicitor, when made payable to, 1509. solicitor and client, when taxed as between, 1541 — 1543 ; and see Taxation. special case, of proceedings by, 1873, 1874. specific performance, of suit for, 618, 1488, 1489, 1496, 1497, 1503, 1504, apportionment of costs in, 1503, 1504. devise or settlement of vendor, of suit occasioned by, 1499. God, act of, of suit occasioned by, 1499. inadequacy of price, of suit occasioned by, 1488. misunderstanding, in case of, 1490. result, generally follow, 1497, 1498. although party acted under opinion of counsel, 1498. successful party, when not allowed, 1488, 1499. stop order, of, applicant's right to, 1719. substitution of purchaser, on, 1373. successful party, when not allowed, 1488 — 1496. contrary decision in case of, 1495, 1496. dishonourable or improper conduct, on account of, 1488, 1489. doubtful point of law, when in case of, 1492. doubtful title, in case of, 1495 ; unless occasioned by party himself, 1496. foolish conduct of both parties, in case of, 1496. hardship, cases of, 1499. laches, where guilty of, 1490. misunderstanding, in cases of, 1490. particeps critninis, when, 1488. reprehensible conduct of both, 1494, representation of party, where suit occasioned by, 1490. unconscionable advantage, in case of, 1489. successful party, when ordered to pay, 1501. taxation of, 1539 — 154S ; and j^« Taxation. tender, where defendant has msSie sufficient, 1484 — 1486. conditions, must be without improper, i486. costs, actually incurred, must include, i486. demand, whole of plaintiff's, must include, i486. proved, must be, statement of in answer not sufficient, 1487. refusal of, effect of, i486. specific, must be, i486. tithe suits of, 189, 1503. title of, inquiry into, purchaser, when entitled to, or liable for costs of, 1352, paid out of what fund, 1352, 1353. trial of question of fact, of, 1472. different ways, where questions found, 1 503 . heir, of, on, 1473. trustees and personal representatives, of, 151 1 — 1527. auctioneer, of, 15 1? ■ cestui que trust, when made defendants, by, 1501. defaulting, of executors of, 151 1, n. {5) INDEX. 1951 COSTS — continued. fund, right to, out of, confined to suit with cestui que trust, 1525. one set of costs, when allowed, and form of order, 457, 458, 1515. severance of, in defence, when allowed, 457, 458, 1515. solicitor acting for other parties, 1516. solicitor trustee not allowed profit costs, 1516. seeus, if specially authorised, 15 16. stop order, when made subject to, 1718. stranger, liability to costs in suits with, 1471, 1472, 1525. unnecessary, must not burden fund with, 1515. trustees, and -personal representatives, when allowed costs, administration suits in 151 1 ; direction of Court, of suit instituted for, 1513. unsuccessful claim of, if made by way of submission, 1517. trustees and personal representatives, when not allowed costs, 1518, 1523. claiming too much, 1518 ; secus, when claim honestly made, 1518. delays and difficulties, where they have created, 1823. misconduct or neglect, in cases of, 1518, 1523, 1524. mistake, when suit occasioned by, 1524. severance, in defence, occasioned by improper, 457, 1515. vexatious conduct, in case of, 1514. trustees and personal representatives, when ordered to pay costs, 1510 — 1523, fonn of order, 1525. account, in case of neglect or refusal to, 1 520 balances keeping unnecessarily large, 1520. breach of trust,' in case of, 1520, 1521. secus, when amount small and promptly restored, 1520, 1524. counsel, though acting under opinion of, 1521. denial of assets, in case of, 1522. dereliction of duty or misconduct, where suit occasioned by, 1501, 1520. gross negligence, though no misfeasance, in case of, 1522. improper defence, setting up, 1517- misconduct in course of suit, where guilty of, 1522. as denial of assets, 1522. concealment of evidence, 1 523. falsification of answer with fraudulent motive, 1522. setting up, unsubstantial objection, 1523. misstating trust, 15 18. possession of estate, keeping, 1521. selling stock without authority, 1 521. separate estate, paying wife's to husband, 1521. unfair appraisement, making, 1521. wrong person, paying fund to, 1521. trustees and personal representatives where ordered to pay part of costs, 1523 trustees or cestuis que trusts, one set, when allowed between, 457, 1537. witness, costs of demurrer or objection by, 598, 599. COSTS, SECURITY FOR, action at law, not required in case of bill to restrain, 22, 23. amount of security, when given by bond, 27. when by payment into Court, 27, 28. application for, must be made without delay, 24, 293, 294. bond, form and preparation of, 27, 28. costs of all defendant's should extend to, 27, 28. bond, how sued upon, 30. costs, how recovered, when found paid in, 31. cross bill, cannot be required by original plaintiff, 22, 293. dismissal of bill on neglect to give, 30, 490, 502. interpleader suit, in, 22, 23. jurisdiction, required from plaintiff or applicant out of, 20-23. secus, if military or naval officer abroad on public service, 22. or co-plaintiff within jurisdiction, 22. evidence on application, 23 — 26. 1952 INDEX. COSTS, SECURITY Y OK— continued. revivor by, on, 23. jurisdiction, required from plaintiff going out of, pending the suit, 25. misdescription of plaintiff, when required on account of, 292, 293. next friend of married woman, when required from, 88 — 90. on his retirement, 89. next friend of infant, required from retiring, 6l. order for, how obtained, 27 ; form and service of, 27. discharge of, 32. pauper, not required from, 32. peer, resident abroad, security must be given by, 22. . permanent residence, required from plaintiff or applicant without a, 22. plaintiff, on striking out name of, 320. security, how given, 27, 28. stay of proceedings till security given, 20, 21. sureties, who may be, 29. costs of inquiry, as to, 28. number of, 28. objected to, how, 30. time for giving, not reckoned in time for answer or defence, 30. COSTS, CHARGES, AND EXPENSES, collusive bill dismissed with, 1545. evasive answer, taken off file with, 480, 1 545. four insufficient answers, after, discharge ordered on payment of, 1544. trustees, when allowed, 1544. COUNSEL, absence of, new trial at law on ground of, 1025. authority of, to consent, 608. briefs of ; see Briefs. cases for opinion of, how far privileged, 405, 406, 407, 1857. pauper, on application to be admitted' to sue as, 36. settlement on marriage does not affect fund, that/ ^6. communications to, privileged, 410, separate, for parties jointly interested, 457. disclaimer by, at bar, in suit, 434, n. (5) ; on petition, 434, n. (5). indorsement on brief, of order of Court not privileged, 405. opinion of, how far privileged, 405, 406, 1856, 1857. person ordered to pay costs though acting under, 1498, 151 1, n. (7), 1521. pauper, may not refuse to act if assigned to, 37. special case, to, 1683. COURSE (ORDER OF). See Order of Course. COURT, demurrer, at hearing of, 428. further hearing after trial, at, 697. motion for decree, at hearing on, 520. special case, at hearing of, 1870. COURT OF CHANCERY (OFFICER OF). See Officer (of the Court OF Chancery). COVENANT, breach of, when restrained, 1681 — 1686. demur, not to, discovery must be given, in cases of, 400. forfeiture on breach of, when relieved by injunction, 1686 — 1688. production for, discovery when not compelled, in case of, 1848. INDEX. 1953 COVENANTEE, when necessary party, 155. COVERTURE, disability arising from, in case of plaintiff, 52, 70 ; of defendant, 104, 140. effect of, at law and in Equity, 71 > 72- woman denying, allowed to defend separately, 145. " CRAVE LEAVE TO REFER," effect of expression in pleadings, 453, 528 ; on right to production, 1855. CREDITORS ; and see Master's Office. abatement of suit by, proceedings in case of, 1584. action by, when restrained after administration decree, 1632 — 1634. application, on whose, 1632 — 1634. assets (state of), must be shown, unless suit by legatee, 1634. costs of restrained creditor, 1634. creditor's debt must be provable at once under, 1633. default, effect of allowing judgment to go by, 1634. execution, not restramed, if judgment prior to decree, 1633. false plea, effect ol, 1633. foreign court, in, 1632. garnishee order, creditor not restrained from obtaining, 1633. injunction, writ of, usually not issued, 1635. inquiry as to creditor's claim, when directed, 1635. plene administravit^ after plea of, 1633. rwns per descent, after plea of, 1633. motion, after order on, 735i 1634. appeal by, 1557. bankrupt, of, cannot sue for property vested in his assignees, 48. consent of, to assignees' suit no longer required, 52. bankrupt testator, of, cannot sue assignees together with executors, 269. claims, proof of by, under decree, see Master's Office. co-plaintiff's, where they may be, 192. costs of suit by, 1528, 1529, 1542, 1543 ; and see COSTS, deceased person, of, when they may sue debtor to estate, 159, 160, 205, 269, 270, 1597. inheritance, owner of, necessary party to administration suit by, 219. insolvent, of, may sue executor of assignee, when, 124. marshal assets, parties to suit to, by, 195. parties, when necessaiy, to suits for execution of tnists for benefit of, 183, 184, 214, 232 ; not necessary, if for execution of trusts of surplus, 214. parties to suit by, where deceased debtor in partnership, 268. real estate, must sue on behalf of others in suit for administration of, 194, "294- amendment of single creditor's bill, when allowed, 294, u. (4), 194, n. (4). receiver, when appointed, in suits by, 1574, 1575' refunding by, where assets insufficient for payment of costs, 1528. residuary legatee, of, cannot sue executor of testator, 269. revivor of suit of, ordered, at whose instance, 1584, 1585. when not necessary, 1597. separate, may sue on behalf of selves and joint creditors, 194, 195. costs of, 1526, 1527 ; form of decree in, 193, n. (3) specific assets of testator, person possessing, when party to bill by, 268. suit on behalf of selves and of several others, when permitted, 192, 194. description of plaintiffs in, 294. dismissal of, before decree, on payment of debt and costs, 193, 196. CREW, when one of ship's, may sue on behalf of himself and others, 196. 1954 INDEX. CRIMINAL CHARGE, objection on ground that production would expose party to, 1857. CRIMINAL MATTERS, proceedings in, not restrained, 1637; unless plaintiffs are thereby seeking redress, 1637. CROSS BILL, admission in answer not controverted by, 477- advance of, 609. evidence in, 549i SS°i 6°9' order to read, in each cause, evidence taken in the other, 550, 609. foreign sovereign or government, may be fijed against, 14, ill. infant's, amendment of, not allowed after dismissal, 136. lost, by amendment of original bill, 319. security for costs, when required in, 22, 293. setting down, 609, 1840. specific performance, where decreed at instance of defendant, without, 305, n. (2), 310. CROSS-EXAMINATION, affidavits on, 568. documents of, none on, 568, 1845. injunction, on application for, 1697, 1698. motioi;, used on, 1618 ; how taken, 1618. answer, on, when permitted, on motion, for decree, 519 ; for injunction, 1698. answer as to documents, no cross-examination on, 1845. examiner, before, how conducted, 568. hearing of cause, at, 577, 578, 582. issue joined, after, taken before Court at hearing, 577. unless before examiner by consent, or by direction of Court, 578. jurisdiction, of witness out of, how taken, 582, 583. motion for decree, on, 519. notice to produce witness for, 568. ' CROWN, costs in suits by and against, 8. payment to, form of order for, 1831. And see Attorney-General — Information — Queen. custom', evidence of, 545- inheritance, owner of, a necessary party to suit to establish, 545. CUSTOM OF THE COUNTRY, cultivation by tenant contrary to, restrained, 1684. DAMAGES, appeal from order directing assessment of, 677. assessment of, in Court of Chancery, 675. before Court itself, 677 ; and see Fact (Question of). by inquiry, at Chambers, 677. assessment of, on discharge of ne exeat, 1 748. excessive, new trial at law on ground of, 686. security for payment of, when required on motion for injunction, 1700, smallness of, new trial at law on ground of, 687. undertaking as to, 1694, 1695, 1742 ; assessment of damages on, 1694. n. (7) and see Undertaking as to Damages. DATES, affidavits, in, how expressed, 573. in answers, 466 ; in bills, 316. INDEX. 1955. DAY TO SHOW CAUSE, effect of giving infant, 134. infant defendant, now given, in case of legal foreclosure, 130. must be in final order, as well as original decree, 130. where sale directed instead of foreclosure, 130. . . where absolute foreclosure decree made at the hearing, 131. infant plaintiff, when given, 58 ; how cause shown by him, 58. DE BENE ESSE (EXAMINATION), 584—595. allowed, when, 585. whenever required by justice of case, 587. not allowed, where more than one witness to same fact, 588. when witness might be detained, 5S8. when commission for examination abroad prayed, 308, benefit of, lost, unless diligence used to examine in chief, 592, closing evidence, not allowed after, 586 ; except after trial of issue, 587. contempt, when defendant in, 589 ; order made without notice, 590. costs of, 595. depositions taken, only used to supply place of examination in chief, 593. depositions, order to use, necessary, 592. application for, how and when made, 594. filing of depositions, 591. incidental to every suit, 586. irregularity in depositions or order, how taken advantage of, 594. Law, order for production of depositions on trial at, when made, 593. when evidence of witness required at, 587. manner of taking, 591. notice of examination, 590 ; contents of, and time for giving, 591. office copy of depositions, when made, 591, n. (5). order for, 588 — 591. affidavit in support of application, 590. course, of, when made as of, 589. defendant's special application before answer, granted on, 589. filing of bill, may be obtained on, 589. form of, 591. irregular order of course, discharge of, 589. notice, when made on motion with, 589. service of, 590. origin of practice, 584. perpetuate testimony, in suit to, 586. DEAF, DUMB, AND BLIND PERSON, payment out, form of order for, in case of, 1828. DEAF, OR DEAF AND DUMB PERSON, affidavit of, how taken, 576 ; answer of, how taken, 468. DEAN, when suit by, should be revived by his successor, iS. DEATH, deponent, of, effect of, on his affidavit, 569. examiner, of, effect of, 5S2. party, of, abatement of suit on, 1580 ; when no abatement, 1596. a total determination of the suit, when, 1595. receiver, of, passing account after, 1 793. DEBTOR, suit against, by person interested, when permitted, 160, 205, 267, 268, 279,. 270. DEBTS ; and see Master's Office. ■ deed for payment of, one creditor may sue for self and others, 194. heir, when necessary party to suit to execute trusts of, 190. proof of, in administration suit, not an election not to sue at law, 515. separate estate of married woman, when charged with, 148. 1956 INDEX. DEBTS — continued. trustees for payment of, may sue without creditors, 184. DECLARATION OF RIGHTS, petition, not made on 1627. DECREES AND ORDERS, and see Master's Office, 615—667. abatement between hearing and judgment, drawn up during, 633. absent party, without prejudice to, or saving right of, 116, 243, 244. accounts, numbering of, in, 627. adding to, 348 ; and see Adding to the Decree. admissions, oral, insertion of, in, 628. alteration of, 136, n. (i), 635 — 641, 1555. alterations in, Registrar's power to make, 631. appearance, entry of, after, 119. bespeaking, time for, 628. binding, from what period, 612, n. (1). clerical error in, correction of, 636, 1555. conditional, consequence of non-performance of the condition, 465. consent, by, how impeached, 608, 1555 ; arid see Consent. ■consents, insertion of, in, 628. date of, 612, n. (l), 626. declaratory, when made, 625. declaratory part of, 627. definition of decree, 615. -dismissal of bill after, only by consent, 486 ; uriless decree only for accounts and inquiries, 487, 508, 509. class suit, not ordered in, even by consent, 196, 197, 488. drawing up, 628 — 634. » election, order for, not made after decree, 515. — enforcing, 641 — 667. assistance, by writ of, 664 ; and see Assistance (Writ of). attachment by, 644 — 646 ; and see Attachment (Writ of). fieri facias, by writ of, 665 ; and see Fieri Facias (Writ of). persons not parties, against,' 663, 664. sequestration by, 650 — 658 ; and see Sequestration. enrolment of, 634 — 636 ; and see ENROLMENT. entry of, 633, 634 ; and see Entry. i erroneous, good till discharged, 641. •evidence in another suit, when available as, 130, 134, 303, 549, 550. final, when, 620. ifinal order, when required to complete iSecree, 624, 625. foreclosure or redemption suit in, 623. infant suits, in, 622. fro coufesso, decree, when required after, 379. form of, 626 — 628. fraud, obtained by, how impeached, 416, 417, further consideration, adjournment of, by, 616. impeached, how, 135, 136, 1555. indorsement on copy for service of, 642, 643 ; and see Indorsement. infant, against, how impeached by him, 129. infant bound by, although no inquiiy whether it is for his benefit, 129. except in cases of fraud, collusion, or error, 129, 130. • infant plaintiff, when bound by, 58. infant, what cause may be shown by, against, 134 — 136. how shown for fraud, collusion, or error, 135 — 13$. time for, enlargement of, 137. inquiries, numbering of, in 627. interlocutory, when, 615, 620, -63;).. interlocutory injunction superseded by decree, unless continued, 1706. irregularity, discharge for, 625. jurisdiction, defendant out of, allowed to come in under, when, 118. INDEX. 1957 DECREES AND ORDERS— conimued. leave for, how obtained, 119. liberty to apply, reservation of, by, 6zi. mahdatory pivf of, 627—636:' married ■woma.r\, personal decree order made against a, 148. one witness, decree not made on evidence of, unless corroborated, S32- N papers left on bespeaking, 628 — 6^9. partial, when made because evidelice defective, 546. passing, 630, 631. appointment for, 630 ; adjournment of, 630. attendance at, and consequence of default, 630 ; filling of, 631. dispensed with, when; 631. service of, how effected and proved, 63I._ delivery of decree or order out, for examination previous to, 631. how effected, 631. < pro confesso, where decree taken, 377. periodical payments, time for, to'be expressed in, 1622. pro confesso, taken, 377 — 379 ; and see Pro CoNFrssoi prosecmlbri of, before service of n6tice of, how far permitted, 347. recitals in, 626. record not' a, until signed and enrolled, 634. rectification of, 636—641. clerical error, application for, how madfe, 636. rectification, how effected, 637. enrolment after, when permitted, 640, 641. rehearing necessary, except for clerical error, or matter of form, 639. sale uhflet-, not invalidated by error or irregularity, unless of substance, 131. securities, description of, in 1621. service of, 378, 642 — 644 ; and see Service. signed and enrolled, how alte;red, 136, n. (l), 640. statutory jurisdiction un(ier, how eijforced, 1882. staying, proceedings after, 486, 487^ submissions, insertions of^ in, 628: survivorship, effect of, on wife's right by, 94, 95, lOO. time, fordoing act, statement of, in, 1S28, 641, 642 ; form of, 642, n. (l). enlargement of, how obtained, 642'. omission of,. how reniedied, 642. title of, 630 J amendment of, wh.en pefmitted, 640. undertakings, insertion of, in, 628. waivers, insertion of, in, 628. DECREE (MOTION FOR). See Motion for Decree. DEED ; and see Master's Office. allegation of, wh,en necessary, 299* delivery up of, Vpw enforced, 644, 652 — 654. depositee of, w'hen necessary pairty, iSS- execution, of, (defective proof, of, ■\vhen reniedied, 5^3. exhibit,, p'royabie a'sj at bearing,, 561 ;^ when, not so provable, 561, 562. toss of, defective proof of, when remedied, ,543. onus frohandi, Hes on, party disputing, 535. , proof of, 559 ; proves itself,, if thirty years old, 554- sf atepi,e,nt of, iii^p:ijswer', 453 \, in^bill, 296 — 298. inaccurate, . in bill, effect of,,on demurrer, 385. . DEFAULT AT HEARING, decree made on, 609, 610. restoration of cause after, when allowed, 610. DEFAULT (WILFUL). &^ "Wilful, Default. DEFECT, in prayer, when supplied under prayer for general relief, 304. 100 1958 INDEX. DEFENCE TO SUIT, alternative, when permitted, 442. benefit of, insisting on, by answer,. as if pleaded or raised by demurrer, 443 ; can only be had at hearing, 444. corporation, by, 114. defendant's proceedings for, 380 — 382. demurrer, when proper, 259, 260, 382. disclaimer, by, proper, when, 250, 381, 434. costs, where defence not so raised, 434. forms of, 380, 381, 382. inconsistent, by answer, not allowed, 442, 443. new, after amendment, 324, not by demurrer ore tenus, 442, 423, new, by infant, may be made on attaining twenty-one, 133. pleadings, not distinctly raised, when allowed, 441. separate, by married woman, when she may obtain order for, 142, 143. not to whole bill, 482. costs of, when defendants jointly interested, 457; 1320, 1498, 1514, 1542, when parties appear by same solicitor, 456. several defences may be set up by answer, 441 ; if consistent, 441. several defences, joinder of, how far permitted, 481, 482. amendment of bill after, 482. exceptions for insufficiency after, 482. extent of each, 481, 482. form and title of defence in such case, 482. time for, where plaintiff ordered to give security for costs, 30, 31. DEFENDANT, who may be, 104, 151. absconding, service on, out of the jurisdiction, 358. absconding, proceedings to take bill fro confesso against, under statutes, 365, 366 ; application, how made, and necessary evidence, 366. under general order, 366 ; application, how made, and necessary evidence, 366, 367 ; and see Pro Confesso, addition of, before decree, 246, 322, 324 ; after 322. evidence against added defendants, 246, 322. adult, if described in bill as infant, not bound, 125, n. (4). answer, may read his own, on question of costs, 531, 1470. but not to show tender, 1487. bankruptcy of, plea of, 122, \>&TAim\i\.cy pendente lite, not an abatement, 123. dismissal of bill for want of prosecution, after, 123, 124, 5o5> S'S- supplemental order on, 124, 1 5851 case of, plaintiff not entitled to discovery of, unless common to both, 415. death of, abatement on, 1580 ; when no abatement, 1595- determination of the suit, when a, 1596. contempt, process of, issuable pending partial abatement by, IS94- dismissal for non-prosecution, effect of, on conditional order for, iS94- effect of revivor after, 1595. hearing and judgment, between, effect of, 1594. motion for revivor or dismissal of bill, on 511, 1597. revivor against successor, on total determination of interest, IS9I1 IS92' demurrer may be good as to one and bad as to another, 419. evidence of, plaintiflfnot entitled to discovery of, unless common to both 415- injunction, at instance of, 1636. interest of, must be shovm by bill, 266. demurrer for want of, 266, 392. ' liability of, must be shown by bill, 266. lunacy of, supplemental order on, 1 586. marriage of female, not an abatement, 1 50. married woman, death of, an abatement, 151. INDEX. 1959 DEFENDANT— fo«ft'K«^a?. «^ ar^fl/ at instance of, against plaintiff, 1739, 1 740 ; against co-defendant, 1739, 1740- privity, between plaintiff and defendant, demurrer for want of, 269, 392. receiver, at instance of, 1 768. revivor by, after decree, 510. security for costs, when required from, 22, 23 . specific performance, when decreed at instance of, 305, n. (2), 3101 statement of case against, in bill, 265. unnecessary, how got rid of, 250, 251, 318. DEFENDANT (FORMAL), process by service on, under general order, 152, 341 — 348. and see Copy of the Bill. DEFICIENT FUND, apportionment of, 1382, 1383. DELAY, interlocutory injunction, effect of, on, application for, 1691. on application to dissolve, 1 704. DELIVERY (OUT OF COURT), documents deposited in Court, of, 1862, 1863. DELIVERY UP, instrument, of, directed when use would be unconscionable, 1 706. DEMAND, unnecessary, on service of decree or order, 643. DEMANDS (JOINT AND SEPARATE), cannot be united in one bill, 280. DEMURRER, 382—434. address of plaintiff, for non-statement of, 292, 396. adequate value, for want of, 272, 393. admission by, extent of, 384 — 386. advance of, 428. affidavit, because bill not accompanied by, 315, 397. included in demurrer for want of equity, 420, 421. allowance of, effect of, 410 — 432. ambiguous statements in bill, construed adversely to pleader on, 385. amended bill, to, when irregular after answer to original bill, 324, 325, 417. amendment of, 418, 425, 429, 383 ; and see Amendment of Demurrer. amendment of bill, after, 325, 427, 428. allowance of, on, 242, 332, 429, 430 ; of partial, 430, 482. overruling of, after, 434 ; and see Amendment of Bill. answer, accompanying, extent and nature of, 416, 424. exceptions to, 425, 433 ; and see Exceptions (for Insufficiency). appeal from order made on, 431, 1555. appeal from allowance of, with leave to amend, by plaintiff, 431. by defendant, 431. appeal from order overruling, not barred by amendment of bill, 433. amendment of bill under order of course irregular, pending, 325, 433. dismissal of bill under of course irregular pending, 433, 483. appropriate defence, when, 260, 382. bankruptcy of plaintiff, on ground of, 50, 51. bar to new suit, when, 431. inapplicable where plaintiff's case disproves defendant's, 415. or discovery common to both, 415. cause of, must be expressed, 420, 421. causes of, several may be shown, 422. certainty in statements of bill, for want of, 299, 300, 302, 396. 1960 INDEX. D'EUVRR'ER— continued. commencement of; 419. costs on, 430, 431, 432, 433 ; and see Costs. costs, on dismissal of bill liable to, 382, 1276. defence by, nature of, 383, less frequent than formerly, 382: discovery, to, grounds of, 387, 397 — 419. answer to relief, when it may be accompanied by, 387. rare'occurrence of, tinder preseat' practice, 397. special, must be, 421, 422. discovery, bill of, to person of plaintiff in, 391. documents, statement of, in bill, admitted by, though erroneous,, 384. effect o(, where professedly inaccurate, 384. equal right with plaintiff, to discovery, on ground that defendant has, 404. equity, for want of, 260, 388, 389. where defect arises from omission of necessary circumstance, 388, where defendant resident abroad, 389. form, demurrer for deficiency in, when included in, 421, 422, leave of the Court, demurrer for want of, not included in, 422. facts, statement of, in bill, admitted by, 384, 385. seeus, if untrue of facts judicially noticed, 385. file, when and how taken off, 426. difierence between taking off file and overruling, 426. filing of, 425—429. notice of, 427 ; neglect to give, effect of, 427. forfeiture, liecause discovery would expose defendant to, 397 — 404. obviated by waiver of forfeiture, 311 ; and see Forfeiture. form of, 419 — 425 ; of dfcmurrer and answer, 424. form, for deficiency in matter of, 396. when included in demurrer for want of e(juity, 420, 421. fraud, demurrer should be filed, though bill charges, 382. frauds, on the ground of the statute of, 396. general nature of, 382 — 386. good, as to one defendant and bad as to another, may be, 418. grounds, different of, 386, 418. hearing of, 428, 429 ; and see Hearing. immateriality, to discovery on the ground of, 404. impertinence not taken advantage of by, 287. itifant, of, filing of, 425. inferences, legal, not admitted by, 385. injunction, not granted pending, 428, n. (5), 1699. advance of demurrer in such case, 1699, injunction, dissolution of interlocutory, on allowance of, 1792. interest in the defendant, for want'of, 249, 266, 392; 393. interest in the plaintiff, for want of, 260, 392. irregularity in frame of bill, for, 417. judgment, demand of, in, 424. jurisdiction, to, grounds of, 388 — 392. Law, Court of, on ground that subject is within jurisdiction of, 388 — 39°' jurisdiction, concurrent, does not lie if, 390. as in case of fraud, 390. length of time, on the ground of, 395. Limitations, Statute of, on the ground of, 395. lunacy or idiocy of plaintiff, on the ground of, 67. lunatic, filing of, where committee, adversely interested, 425. married woman, separate, of, 425 ; order for, necessary, when, 425. multifariousness, for, 285, 394. name of defendant, striking out of, after allowance of, 432. oath, put in without, 425. offer to do equity or waive penalty or forfeiture, for want of, 310, 312, 39S) 396 ; inckvied in demurrer'for want of equity, 421, 422. ore tenus, definition of, 423 ; confined to case where demurrer already on INDEX. 1961 BEM.VRR'EK—rontmueei. record, 423 ; but cannot be on same ground, 423. coextensive with demurrer filed, must be, 423. costs of 430. origin of term, 383. overruling, effect of, 382, 432 — 434. answer, when without prejudice to defence, by, 435, 436. answer, after, 435. dismissal of bill after, pot of course, 4S3, reservation to hearing of question raised by, 434., part of bill demurred to must be specified,/4i^9. partial, where put in, 418 ; allowance of, effect of, 430. answer, accompanying, 416, 417, 418, 424 ; when not necessary, 418. commencement of, 419. overruling, effect of, 433. because answer too extensive, 418, 424. because demurrer not extensive enough, 420. parties, for want of, 241, 394 ; how obviated, 241, 242. amendment of bill after, 242 ; form of, 241.. partly good and partly bad, cannot be, 418. penalty, because discovery would expose defendant to, 397 — 403. obviated by waiver of penalty, 311, 397, 398 ; and see Penalty. pendency of another suit for the same matter, on the .ground of, 396. perpetuate testimony, to bill to, grounds of, 259, 262. person of plaintiff, to the 391 ; where plaintiff cannot sue alone, 391- discovery, in case of bill of, 391. extends to whole bill, 68, 391- positiveness, for want of, 294, 396 ; included in demurrer for want of equity, 421. privity between plaintiff and defendant, for not showing, 269, 392, 393. professional confidence, to discovery on ground of, 405 — 413 ; and see Pro- fessional Confidence. proper relief, on the ground that bill does not pray, 269, 393. public interest, on the ground that discovery would be against, 415, 416. record, matters repugnant to, not admitted by, 385. relief to, grounds of, 386 — 397. scandal not taken advantage of by, 287. second, when permitted after first, to whole bill, overruled, 432. leave of the Court necessary for filing,, 418, 433. separate, allowed to distinct parts of the bill, 419 ; form of, 419^ setting down, 427 ; and see Setting Down. speaking, definition of, 422.^ stand for answer, not ordered to, 432. statutory jurisdiction, that matter is within, 429. substance of the bill, to the, 392 — 396. sufficient, when held to be, 427. supplemental bill, to, grounds of, 1 601. third person, interested in discovery, on ground that, 415. time for, 425 ; accompanied by answer, when, 426. extension of time, 426. vacation, runs in, 428. title, doubtful questions not decided on, 383. title of, 419. unsound mind, person of, filing of, by, 425 . whole bill, to, except specified part, good, 4r9. whole matter included in bill, on ground that it is not, 272, 394- withdrawal of, 428. DEMURRER AND ANSWER, defence by, 481. setting down, 482. 1962 INDEX. DEMURRER BY WITNESS, 595—599. costs of, 598. filing of, 597. forfeiture or penalty, because evidence would expose to, 596 ; and see For- feiture — Penalty. form of, 597. grounds of, 596. copy of, by whom taken, 598. overruling, order made on, 598 : where partial, 598. prejudice, without, 598- professional confidence, on the ground of, 596 ; and see Professional Con- fidence. refusal to produce under subpoena duces tecum^ not necessary in case of, 596. setting down, 598 ; service of order for, 598. DENIAL, answer by, must be direct, and extend to particular circumstances, 453. DEPOSIT (IN COURT), not required on, petitions, 1573. cause of husband and wife, to, effect of on wife's right by survivorship, 92, 93. documents, of, in Record and Writ Clerks' office, 1858 ; how effected, l86o. copies or extracts from, how made, i86l. delivery back, how obtained, 1862. inspection of, practice as to, i860, 1861. jurisdiction, not ordered to be taken out of the, 1862. production of, how obtained in Court, 553, 1861. out of Court, 553, 1 86 1 ; fees on, 808, n. ( ^" 53i> n. (7)- answer of co-defendant, read as, when, 518, 531, 533. in interpleader suit, 531. appeal motions, 1575, 1624 ;. ilew evidence on, when allowed, 1575, 1624. costs, where successful on new evidence, 1575 > 1624. appeal petitions, 1575,^-630 ; new evidence, when admissible in, 1675, 1630. appeals and rehearings in Chancery, on, 1574, 1576. answer not made, by reading as admission below, 1574. decree, new evidence not usually admissible on appeal from, 1573- exceptions, 1574; 1575 ; credit; of witness, to impeach, 1574, 1575. de bate esse, where admitted to be read, 1575- exhibits, to prove, l'574. omission by inadvertence, in hearing below, in case of, 1574- bankruptcy,, taken before, read against assignees, 123. best, must be given, 546. bill and answer, at hearing on, 521, 561. bill read' by plaintiff as, when, 528. Chambers, how adduced at, 726 — -732. general rules of, applicable to proceedings in, 726, 727. contradictory, issue when directed in consequence of, 669. costs of, 527, 588, 1484. cross causes, order to use in one, evidence taken in the other, 55°) 6P9' custom,. of, 545- de bene esse, when taken, 584 — 595 ; and see De Bene Esse (Examination). decree, sufficient must be proved to entitle plaintiff to, 541, 542. decree or order in another suit, when admissible as, 548, 549. defect, in, how remedied, 542, 543. application for leave to supply, how made, 543. 1970 INDEX. EVIDENCE— ^wriKw^rf. inquiry, when directed, 543. partial decree, when made, 544. defendant's, plaintiff not entitled to discovery of, unless common to both, 415. depositions in another suit, when admissible, 549 — 553. co-defendants, when between, 550. dismissal of bill, after, 552. motion for decree, when cause heard on, 552. copy, duly signed, read from, 553. order to read not necessary, 549 ; how obtained, 803. witnesses need not be dead, 552. depositions of witnesses, in other Courts, introduced, how, 548. order to read not necessary, 549. documentary, what is, 547. documentary, which proves itself, 547 — 555. documentary, which does not prove itself, 555 — 560. documents admitted as evidence, though not pleaded, 540. documents, secondary evidence of, when admitted, 558. drunkenness, evidence admitted under general charge of, 538. no entry of, in decree or oixler, 615, 626 ; and see Entry. executor, in suit against, 541, 542. exhibits, proving, at hearing, 561—564 ; and see Exhibits. facts, not noticed in the pleadings, evidence of, not admitted, 270, 537. general charge, evidence of what facts admitted under a, 538, 539. guardian, in support of application to appoint, 1390, 1391. guardian ad litem, on application by plaintiff for, of infant, 125. on behalf of infant, 125. for person of unsound mind, by plaintiff, 139. on behalf of person of unsound mind, 139. hearsay not admissible, 546. improper, new trial at law on ground of admission of, 682. objection must be taken at trial, 684. improper length of, costs occasioned by, 527, 1484. infant, necessary evidence against, 133. taken before he was made a party, not read against him, 133, u, (7). injunctions, on applications for, 1695, 1696- breach of, on application to commit for, 1711. discovery, in suit for, 1700. insanity, evidence where general charge of, 538. instrument not made evidence by mere reference thereto, 299. insufficient issue, when granted in case of, 674, 675. interlocutory application, upon, 568. issue, should be confined to matters in, 537 — 545. letters, statement of, as evidence of agreement contained therein, 297, 298. lewdness, evidence where general charge of, 538. marriage settlement, in support of application to approve, 1408. marriage of ward of Court, in support of application for, 1406. modus, of, 546. motion for decree on, 516 — 521. motions, on, 1616 — 1618, 1618, n. (i) ; oral, how taken on, 1618. ne exeat pruvincia, on application for, 1740, 174^* new evidence, new trial at law on ground of, 691. , new trial, on motion for, 694. notice, evidence where general charge of, 539, 540. onus probandi, 535, 537 ; and see Onus Probandi. parties added, after time for notice of cross-examination, evidence not read against, 245, 246, 322, 325. payment into Court, on application for, 1818, 1819. payment out of Court on application for, 1827. petitions, on, 1627. ro confesso, on application for order to take bill, 365, 366. INDEX. 1971 EVIDENCE— ««ft-«K^(/. against absconding defendant under statute, 366. under general order, 366, 367. receiver, on application for, 1769. rejection of, new trial on ground of improper, 681. at law, 682 ; objection must be taken at trial, 684. sale by private contract, in support of application to confirm, 1 161. secondary, when permitted, 557 — 559 ; and see Secondary Evidence. service of bill out of jurisdiction, on application for leave for, 360. service of notice of the decree on infant, or person of unsound mind, on application for, 343. statutory jurisdiction, on applications under, 1882. stop order, on application for, 171 6, 1717. substance of case only need be proved, 541, 542. substitution of purchaser, in support of application for, 1374. supplemental answer, on application for leave to file, 477. supplemental suit, in, 1602, 1603. taken, how, 577 — 584. time for taking, 580. enlargement of, 581. application for, how made, 581. unnecessary, costs of, disallowed, 527, 1484. variance, effect of, 545, 546 ; and see Variance. verdict against evidence, new trial of question of fact, on ground of| 677, 678 ; at law, 686. viva voce evidence, how and when taken, 577, 584- EX PARTE EXAMINATION. See Examination (of Witnesses Ex PARTE. EXAMINATION (OF DEFENDANT), how taken, 580. EXAMINATION (OF MARRIED WOMAN), 73—81. abroad, how taken when resident, 75. affidavit of no settlement, or that it does not affect fund, 76. certificate of counsel that settlement does not affect fund, 76. Chambers, how taken at, 75. affidavit by solicitor that settlement does not affect fund, 76. Court, how taken by, 73, 74. ' fund under ;^20O., or ;^lo per annum, not required if, 78. infant, not taken if she is, 76, 77. remainder or reversion, not taken where property is in, 79. second, when dispensed with, 77. separate estate, not required if fund is, 79 ; unless husband recipient, 79. separate receipt, required, though fund paid to, 78. stage of proceedings at which taken, 76. EXAMINATION (OF WITNESSES), 577—584- appeal, by Court on, 1575- Chambers at, 727. attendance of witness, how obtained, 727. examiner, before, how conducted, 578 ; Chambers, for use in, 727, 729. issue joined, how taken after, 577, 578. jurisdiction, of witness out of, how taken, 582, 583. partition, under commission of, 702, 703 . service of notice of appointment for, on witness, 579. EXAMINATION (OF WITNESSES, COMMISSION FOR), 582—583. examination lie bene esse not permitted under prayer for, 308. jurisdiction, to take evidence out of, 582 ; practice on, 583. EXAMINATION (OF WITNESSES DE BENE ESSE). See De Bene Esse (Examination). 1972 INDEX. EXAMINATION OF WITNESSES, EX PARTE, cross examination on, 568. EXAMINERS, Court of the 577. death of, effect of, 582. depositions, how taken down t>y, 580 — 583 ; a,nd j^« DEPOSITIONS. signature of,, to depositions, 582. refusal of witness, on, 581. jurisdiction, examiiiation of witness out of, taken by, 582, 583. EXCEPTIONS (FOR IMPERTINENCE), abolished, 287. EXCHANGE (BILL OF), drawer or indorsee of, when not necessary party, 166. exhibit, provable as, at hearing, 5^1. negotiatioti of,, ^4'hen restrained, 1677. application Usually -aa&f: ex parte, 1677, 1692. forged endorsement, in case of, 1677. EXCOMMUNICATION, no longer a disability, 40. EXECUTION, injunction to restrain, 1647, 1648. issue of, by creditor, when libt restra^ed, aftei* decree, 1633. foi: noh-obediehfce to decree or order, 652 — 658. EXECUTORS, acting, necessary parties, though they have released and (Jisclaimed, 208. _ adtfiiniitration' decree, on apjfilicatibn of, agaihsl one legatee or next" or kin, 342 ; but others must be served with notice of it, 183, 184, 342. co-plaintiffs, need not all be, 185. de son tort, personal representative necessary party to suit against, 263, 264. durante minore cetate, necessary party, unless- he has, fully accoimted, 206. evidence in suit against, 541, 542. grant of proJDate need npt be alleged in bill against, 263. jurisdictioili out df, not necessary party to sUit against co-executbr,' 115, 227. parties, all necessary, 207, 208. except those abroad in contempt, 208, n. (i) j or not proving^ 208. payment into Court ty, when ordered, 1808 — 1811. plaintiff, description of, as such, unnecessary in first part of bill, 2^4. plaintiff, must state he has proved will, 262, 263. unless bill filed to protect property pending grant, 263. probate, suiiig before, must pVove before hearing, 263, 264. such a bill not demurrable, if proof alleged, 263, 264. but fact may be pleaded, 263, 264. receiver, when appointed agaiiist, 1746 — 1759 ; axiAsee RECEIVER, sale, with power of renouncing, effect of, 209. and see PERSONAL REPRESENTATIVES. EXECUTORY DEVISEES, intermediate, necessary parties, 222. necessary parties, when 187. not in esse, bound by decree against first estate of inheritance, 188. waste, when restrained, on application of, 1476. EXECUTRIX, ne exeat, not granted against, if a married woman, 141, 1541. receiver, when appointed against, 1652, 1653. EXEMPLIFICATION, record of Superior Court, of, admitted without proof, 548. EXHIBITS, alterations in accounts made, how authenticated, 574. INDEX. 1973 EX HIBITS— continued. annexation to affidavit, when improper, 574, 1142. bill and answer, may be proved at hearing on, 521, 561, 562. identification of, when to be used at Chambers, 574. hearing, proving at, under order, 561—564. what may be so proved, 561 ; what may not, 562. appeal, at hearing of, I574> ^STS- attendance of witness to prove, how enforced, 564. impeached documents not provable as, at, 562, 563. unless validity only disputed, 562, 563. mode of proof, 563. objection may be made to admissibility of, 564- order to prove necessary, 563 ; omission of, how remedied, 563. form of, 563. how obtained, 563. will not proveable, as, 562. production to deponent, of, 574- production of, before hearing, not usually compellable, 564, 575. EXILE, wife of, sued without him, 140. EXPEffSES, witness, of, tender of, 579 ; examination in Chambers, on, 727. married woman, in case of, 579. EXPERT, assistance of, may be obtained, 613, 614. stage of the cause, at what, 613, 614. report of, how regarded, 613, 614. FACT (QUESTION OF), advance out of fund in Court, when made for trial of, 677. appeal from order directing trial of, 677. assizes or Msi Prius, trial of, at, when directed, 668. Chancery, determined by Court of, when, 668 ; when not, 668, 669. compromise at trial, effect of, 698. de bene esse, examination, when allowed after trial of, 587. decree for trial of, not a final decree, 615, 616. discovery, bill of, does not lie without leave of the Court, after order for, '415- , discretionary, except in case of heir, rector, or vicar, 672. but decision may be appealed, 673. not granted where, though fact found to be true, law would be adverse, 673 ; or only one verdict could be found, 673. dismissal, on plaintift's application, permitted, after order for trial of, 486, 487; secus, after the trial of, 486, 487. form of, not changed on motion for new trial, 696, 697. further hearing after trial of, 697, 700 ; and see Further Hearing. new trials of, 677—697 ; and wNew Trial. trial of, when directed, 668—677. evidence, contradictory, directed, where, 669. insufficient, granted in case of, when, 674. forgery, granted in case of, if evidence conflicting, 673. heir at law, right of, to, 5S6, 557, 670, 671. injunction, on application for committal for breach of, 675, 1712- material point, not in issue, when directed to try, 674. one witness only supporting plaintiff's case, 533. if asked for by defendant, 533. question in suit, may be directed as to any, 673. rector, right of, to, 670. 1974 IK1>EX. FACT (QUESTION 0¥)— continued. stage of cause, at what, directed, 675, 676. suggestion, not granted on mere, 673, 674. vicar, right of, to, 67a costs of, 694, 695, 699, 1472, r503; and see Costs. jury, when directed before, 675. FACTOR, jurisdiction, out of, not a necessary party to suit against co-factor 115, 116 227. privity, not destroyed by employment of, 268, 269. FACTS, admission of, by demurl'er, 383 — 386. alleged in bill, how, 295. answer, stated in, when introduced in bill by amendment, 322. evidence of, not admitted, if not noticed in pleadings, 537. exceptions, where pointed to general charge; 538. filing of bill, oce^^rring since, how introduced, 322. FAILURE, banker, of, receiver when charged with loss occasioned by, 1 787 FALSE AVERMENT, of fact judicially noticed, not attended to, 14, 386. FEE, seisin in, how allied in bill, 295, 296. FELLOWSHIP, eoUege, receiver appointed of, 1764. FELON, costs, security for, when required from, 25. infant, assignment of aistody of, 1877. wife not bound by answer to expose jiusbaiid' to chai'ge as, 146, 398. FEME COVERT. 5a* Married Woman. FEME SOLE, marriage of, no abatement, m case of defendant, 150'. marriage of, an abatement, in caSe" of plaintifF, 91, 15S4.' motion for revivor or dismissal of suit oh, 51I. want of order of revivor not a groiihd for reversing decree' on bill of review, 91. order unnecesSaiy, if husbind di^S befoire it is obtained, 91 . married woman may act as, when necessity rtquires, 71*. married woman, iilktituting suit, becomes subject to liabilities of, gr. married woman, instituting suit as, proceedings stayed, 91, n. (5^, nadrried woin^, suing as, stateiilenf of fkct of, 293, FIERI FACIAS (WRIT OF), decree or order, when issued to enforce, 665. preparation and issue of, 665. receiver, against, for non-payment to party, in'^fular, 1790, 1791. FILE (TAKING OFF TH£), affidavit, for scandal and irrelevance, 486, 481, 5'72. answer, 459, 46^, 486, 48^. application for, how and' by whom made, 480. evasive'," because, 48b. heading, for defect in,. 459. irregtilarity, for, 48O ; in jurat, 469. bill, 69, 70, 255, 256, 33^, 341. amended, for irregularity, 339 ; not ordered if record can be' restorea to its original state, 340. INDEX. X975 FILE (TAKING OFF T:n^)—ooniinued. authority, because filed without, 255, 256: application for, how made; when, and evidenee in support, 256. disability, because filed by person under, without next friendV 69. consent, of pleadings and documents by, 480, 481. demurrer, when and how taken off, 426; difference between taking off file- and verrttling, 4261. pleadings and documents, because scandalous, 481 . FILING, afi5davit, 577. pressing matter, in case of, 577, time for. of service of notice of motion or petition,- i6l J. answer, 459, 460, 470, 471. infant, of, 132. married woman, separate, of, 145, 146, 469,. 47a notice of, 471 ; eflFect of neglect to give, 471. on right to move to dismiss for want of prosecution, 506, 507. Record and Writ Clerk's certificate, conclusive as to time of, 470. sworn by all defendants for whom prepared,, when not, 459, 46a time, when permitted without order, after expiration of, 470. bill, 317- . amended bill, when, reprint necessary, 33,6, 33,7. record, not considered as of, until, 317. certificate of examination of married woman, 75. certificate. Examiner's, of default or misconduct of witness, 580. certificate of partition, 708. demurrer, 425 ; notice of, 427 ; effect of neglect to give, 427. of lunatic, when committed adversely interested, 425. demurrer, by witness, 596, 597. depositions, 582, 591. disclaimer, 436. examination of married woman, 75. information, 317; amended, when,, reprint required, 336. partition, commission and certificate of, when returned, 708. petition, 1628 ; copy of, when allowed to be filed, 1628. replication, 524. » notice of, 523 ; form of; 525 ; effect of neglect to give, 525. service of, 525 ; and see Sjervice. nunc pro tunc, 526, 614. special case, 1867.; notice of, 1867. FISHERY, bill claiming general right of, when not multifarious, 281. FORECLOSURE SUIT, and see Master's Office. costs of motion for, 1622. cestui que trusts, represented by trustees in, when, r73, 274. costs of, 1476 , of disclaiming defendants in, 124, 438^ 439. mortgagee of, 1476. decree, form of, 622. final order on, required, and how obtained, 623. decree for, intermediate incumbrancer not bound by; 232. decree, proceedings under, 622. decree, prayer for sale, not made under, 304, 305. dismissal of, on payment of debt and costs, 488; infant, against, day to show cause,, when given,. 1 30 ; when not, 135. error, only cause infant can show against decree of, 130, 134. unless he claims by title paramount, 135. injunction issued after decree in, though not prayed, 1632. married woman, decree binding om, 150. parties to, 171, I73, 174. '75. 214. 216, 220, 232, 234, 235, 237. 1976 INDEX. FORECLOSURE SVIT—conii«ued. assignment of mortgage, in case of, 174, bankrupt, mortgagor not, 1 74. cestuis que trust, when, 214. derivative mortgagees, 174, 216. devise of mortgage, in case of, 1 74. heir of mortgagee, in suit by, 179, 180. heir of mortgagor, when, 237. incumbrancers, prior, not necessary parties, 173, 235. incumbrancers, subsequent, 232. whether incumbrance legal or equitable, 234 ; if specific, 234. inheritance, owners of first estate of, and of intermediate estates, 220. mortgage money, all persons interested in the, 170. unless their interests sufficiently represented, 170. original mortgagee in derivative mortgagee's suit, 174. personal representative of mortgagee, iu suit by, 179, 180. trustees, when mortgaged estate vested in, 173. sale, when directed instead of, 238. time for payment, enlargement of, in, 624 ; on what terms, 624. appeal from decree, in cases of, 624, 1565. certificate, application to vary, where, 624. rents received before day of foreclosure, where, 624. FOREIGN CORPORATIONS, how they sue in this country, 19. service of notice of motion on, 1614. FOREIGN COUNTRY, answer, how taken in, 466. ne exeat, against person domiciled in, 1737- penalty in, discovery must be given, though it would expose defendant to, 401. FOREIGN COURT, creditor's suit in, restrained after administration decree, when, 1632. election, when plaintiff suing in, as well as in Chancery, 513. litigation in, appointment of receiver pending, 1761. proceedings in, injunction against, 1650, 1651 ; after decree iu Chancery, 494- proceedings, judicial or legal, of, how proved, 494. staying proceedings after, decree in, 494. FOREIGN DOMINIONS OF THE QUEEN, answer, how taken in, 466. FOREIGN GOVERNMENT, cross bill, may be defendant to, 15, III, 112 ; and must answer, 112. iimd about to be distributed, may be defendant if interested in, in, 112. non-recognition of, judicially noticed, although recognition averred, 14. recognition of, judicially noticed, 14, 386 ; and conclusive, 14. suit by, 13 — 16. permitted, if recognized, 13 ; secus, if not recognized, 14, 15. private rights of, only lies to enforce, 14, suits against, III, 112. FOREIGN LAW, governs decision, on foreign contracts in suits between aliens, 42. question of, a matter of fact, 548, ib. n. (3). FOREIGNER, affidavit of, how taken, 576. answer of, how taken in his own language, 467, 468 ; in English, 467, 4^8- jurat, to, 468. <« exeat, when granted against, in suit by foreigner, 42, 1737. INDEX. 1977 FORFEITURE, answer, objection by, to discovery on ground of, 444, 445. assignment, on breach of covenant against, not relieved against, 1687, 1688. call, on non-payment of, not relieved against, 1686. demurrer, objection by, to discovery on the ground of, 387, 397 — 404. demurrer by vpitness on the ground of, 595, 596, discovery, objection to, because it would expose defendant to, 311, 312, 402. limitation over, does not lie in case of, 403. unless disqualification is in nature of forfeiture, 403. expiration of time for suit, discovery must be given after, 402. lease, of, landlord when restrained from enforcing, 1688. marriage without consent, on, discovery, need not be given, 146, 402. married woman not bound to answer so as to expose herself to, 146. production, objection to, because it would expose party to, 1857. renewal, of covenant for, when relieved against, 1687. rent, for non-payment of, when relieved against, 1687. repair, on breach of covenant to, not relieved against, 1687, 1688. timber, for felling, whether relieved against, 1687. waiver of, when necessary, 310, 3*1 ; effect of, 311, 397, 398. demurrer for want of, 311, 312, 387, 388. FORGERY, issue granted in case of, where evidence conflicting, 673. new trial of issue on ground of, 677, 678. FORMA PAUPERIS, suing and defending in, 32—40, 120, 121 ; and see Pauper. FORMAL DEFENDANT. See Defendant (Form al)— Copy of the Bill. FORMER SUIT (FOR SAME MATTER), costs of, staying proceedings in second suit until payment of, 35, 489, 490. FRAUD, action, when restrained on ground of, 1471. agents, arbitrators, or attornies, charged with, when made defendants, 247, 248 ; allegations and prayer of bill, 248. bankrupt cannot demur to bill of relief, charging, 123. charges of, answer as to, in pleas, 248. concurrent jurisdiction, to relieve against, in Courts of Law, 390. consent decree obtained by, impeached by original bill, creditor or legatee may sue debtor to estate in case of, 268. decree, how impeached for, 136, n. (i), 417- demurrer should be filed, though bill charges, 382. disclaimer, insufficient when discovery as to, sought, 435. although defendant a married woman, 147, 148, 435. general allegation of insufficient, 268. infant, how shown by, as cause against decree, 135, 136. legatee may sue debtor to estate in case of, 160, 205, 267. married woman's separate estate bound by her, 149, 150, new trial of issue on ground of, 679. professional confidence, no exemption from discovery m cases of, 412, 413. relief only granted on case made by bill in cases of, 271, 307. practice, when other matters alleged in bill, 307. FRAUDS (STATUTE OF), . . , <, cannot be pleaded to enable party to commit a fraud, 3S9, 390. demurrer on the ground of, 396. FREEHOLD ESTATE, effect of sequestration on. 658. 19f78 INDEX. FUND IN COURT, advance out of, when ordered to defcay costs of issue, 677. transfer from one account to anothei:, how effected, ,1826. FURTHER DIRECTIONS, 872—882. when cause to be set down to be heard on, '872. Master's report must first be inade, '872. Court will not interfere in a summary way, where fiirther directions reserved. 872. unless liberty lias been reserved, 872. but it will entertain maltters of a collateral nature, '872, '873. it will also permit a bill to be dismissed, without requiring ■the cause to be set down on further directions, 873. only when further directions have been resei'ved that it is required to set the cause down on, 873. given after confirmationof report, 873. what the Court will do at the hearing on, 873, 874. what the Court will not take into consideration at (he hearing on, 874. when a re-hearing must be had, 875. rules as to consideration of the question of interest at the hearing on, 875, 876, 877. when the Court will entertain a renewed application for a receiver at 'the hearing on, 878. Court will not vary or impugn the original decree at the 'hearing on, 878. nor will it entertain any objection to the original decree, on a ground which might have been made at the original hearing, 879. Court will supply defects in original decree as far as possible, 879. Setting Down, on Further Directions, 880^882. Mode of, 880. Orders 418 and 41 9, as to, 880. creditor, whose claims has been admitted by Master, has a right to appear at the hearing on further directions, 88l. evidence taken in Master's Office, not looked at on further directions, 881. the order made on further directions is, in fact, a decree of the Court, "882. FURTHER HEARING, petition, of, 1627, 1628. trial of question of fact or issue, after, 697 — 699. appeal, not stayed on account of pendency of, 697. cost of issue disposed of at, 698. interlocutory application, when trial was directed on, 697. new trial, when directed at, 697. order made at 697 ; where trial has not taken place, 698. setting down cause for, where trial was directed by decree, 697. verdict, decree at, when made contrary to, 698. FUTURE RIGHTS, declaration of, not usually made, 621, 622. special case, not made on, 1872. GARNISHEE ORDER, creditor not restrained from obtaining, after administration decree, 1633. GENERAL RIGHT, owner of inheritance, necessary party to lessee's bill to establish, 168. GOODWILL, sale of, does not imply covenant not to trade, 1681. GOVERNMENT OF FOREIGN STATE. &c Foreign Government. GRANT, deed must be alleged of things lying in, 298. INDEX. ,1979 GRANTEE OF CROWN, of chose in action, form of suit by, 4, 106. GREATER CERTAINTY. reference to document for, effect pf, 453, 528,; onrjght to produ.cfion, 133. GUARDIAN (OF INFANT), 1384— 1394. ' appointment of, application for, how made in suit, 1388. Chambers, made at, where no suit, 1388, 1391. evidence in support, 1390, 1391. father alive, when, 1388. infant, after appointment by, 1388. jurisdiction, when infant out of the, 1388. liberty to apply for, when given, 1387.' security to account, how given by, 1392. control pf Court over, 1400. costs of, 1399. death, effect of, where appointed by Court, 1391. determination of office, what pccasions, 1391. leases, power of, to grant, i4!o2. maintenance, not bound to account for ei^penditure in, 1400. marriage of female, determination pfoffide by, 1391. next friend, may sue as, 54, 55. property of infant, power of, over, 1402. removal of, application for, how made, 1392. special case, concurrence in, for infant, 1866. testamentary, how appointed, 1389; extent of power to appoint, 1390, 1391. control of Court over, 1390, 1402. death of, effect of, 1391. declining to act, proceedings in case of, 1 390. power over infant's property, 1402. vacancy in office of, how supplied, 1392. GUARDIAN (OF PERSON OF UNSOUND MIND NOT SO FOIUND)' appointment of, 1399. GUARDIAN AD LITEM (OF INFANT), acts of, how far binding on infant, 128, 129. answer of, on behalf of infant, 132, 461, 469. heading of, 459. improper, costs of, 128. married wpman, where a, 145, 146, 470. path pr signature, where put in without, 461, 462. read, may be, against guardian, but not infant, 469, 530, 531. appointment of, at instance of infant, 125, 145. appointment of, on application of plaintiff, 125. application, hpw made, ^Jid evidence, 125. _ service of notice, 126. who appointed, 127, 128. consent of, to deviation from ordinary procedure, sanction of Court to, 128. death of, proceedings on, 128, 1391. defence conducted by, 125. duty of,. 128. ineligible, who, 125, 126. jurisdiction, for infant out of, appointment of, at instance of infant, ^27, 360. of plaintiff, 127, 360. married woman, required for, if an infant,, 126, 127, 145, 146. notice of the decree, appointment of, for infant served with, 348. - petition, when infant respondent to, .125, 1627. application, how made, and evidence, in support, 125. proceedings in cause cannot be taken until appbintnient of, 125, iz6. removal of, 128, 1 29. 1980 INDEX. GUARDIAN AD LITEM (OF PERSON OF UNSOUND OR WEAK MIND), answer of, 138, 139. how sworn, and jurat to, 459. oath or signature, when put in Without, 462. read against defendant, whether it may be, 139, 531. appointment of, at instance of defendant, 139; evidence in support of, 139. appointment of, on application of the plaintiff, 139. application, how made, and evidence, 139. service of notice of, 139. order for appointment made in Chancery, 139. who appointed, 138. consent of, to deviation from ordinary procedure, sanction of Court to, 1 39. death of, proceedings on, 138, 139. defence conducted by, 138 ; when committee adversely interested, 138. discharge of order appointing, at defendant's instance, 139 ; at plaintiff's, 139- ,. . , inquiry as to competency, when directed, on application for, 139. entry of order appointing, at Record and Writ Clerks' office, 141, 142. ineligible, who, 139. jurisdiction, appointment of, where person out of, 360. notice of the decree, appointment of, for person served with, 348. proceedings in cause, cannot be taken until appointment of, 139. IfyEC VERBA, documents, when set out, in bill, 296. HALF-PAY, receiver of, not appointed, 1764. sequestration, not taken under, 653. HEAD OF CORPORATION, corporations cannot be sued without their head, 17, Ii2. corporations aggregate cannot sue in name or head alone, 17. death of, not an abatement, 18 ; unless of corporation sole, 18, 1 584. revivor in such case, j8, 19. HEARING, generally, 607, 615. adjournment of, 608, 609 ; and see Adjournment (of Causes). advance of, 607, 608, 609 ; and see Advance (of Cause). amendment bill, leave for, when given at, 321, 322, 330 — 383 ; and see Amendment of Bill. appearance of party not duly served at, 611, 612. appearance of person not a party at, 611, 612. attendance of solicitor at, 609 ; penalty for neglect, 609. benefit of defence raised by answer can only be had at, 443. bill and answer, proceedings at, 612, 613; dismissal on, costs of, 612, 613. certainty in bill, objection for want of, cannot be raised at, 303. contempt of plaintiff, no objection to, 611. costs of cause, only dealt with at, 487, 488, 1468, 1469, 1509. usually not given at original, 1464. given at, include subsequent, unless expressly excepted, 1464. death of defendant, after, but before judgment, effect of, 1595. dismissal of bill at, for inadequacy of value, 271, 272. exhibits, proving at, under order, 561 — 564; and see Exhibits. injunction, when granted at, or after, though no prayer, 163 1. jurisdiction, objection for want of, may be taken at, when, 391, 392. multifariousness, objections for, can only be taken by Court at, 285,444. parties, objections for want of, may be taken at, 243. partition, how effected at, ^QO. plaintiff cannot be heard by counsel and in person, 612. INDEX. 1981 HEARING— coniinued. private, when directed, 615. pro confesso, when bill ordered to be taken, 377. proceedings, where all parties appear, 612. defendant, non-appearance of, in cases of, 609. plaintiff, non-appearance of, in case of, 610. receiver granted at or after, though not prayed, 1768. relator not heard in person, at, 612. replication allowed to be filed nunc pro tunc at, when, 614. appeal or rehearing, of, 1573, 1574. affidavit of service of order to set down, course where informal, 1573- amendment of bill at, 331, 1577. begin, who entitled to, 1573. fiirther consideration, on appeal from order on, 1573, n. (8). motion for decree or appeal from order on, 1573, n. (8). heard, who entitled to be, on, 1573- demurrer, of, where both parties appear, 429. where defendant does not appear, 428 ; where plaintiff does not, 428. further consideration of cause, see Further Directions. further hearing after trial, of, 697, 698. motions, of, 1615, 1617. to dismiss, for want of prosecution, 503, 504. where neither party appears, 503' motion for decree, of, 520. where either or both parties neglect to appear, 520. petitions, of, 1627. cross petitions, 1627. priority, of, when answered for the same day, 1627. special case, of, powers of Court at, 1870. HEARSAY, evidence, not admissible, 546. HEATHEN, answer of, how taken, 461. HEIR, absence of, not affected by decree made m, 190, 191. administration decree, at instance of, on serving co-heir, 177, 342. admission of, will established on, 555. co-plaintiff, amendment at hearing, by making a defendant, 331, 332. co-plaintiff, should not be with devisee, 191. costs of, 698, 699, 1471— 1474 ; and see Costs. creditor's action restrained after decree, on application of, 1632. devisavit vel non, right of to issue of, 557, 671. debts, when party to suit to execute trusts of deed for payment of, 190. grantor's, necessary party to information for charity, 216, 217. injunction against, made perpetual, after establishment of will, 1708. materna, ex parte, not entitled to discovery of title of claimant ex parte paterna, 414. mortgagee, of, when necessary party, 154 ; when not, 155, 174. mortgagee, of, parties to foreclosure suit by, 179, 180. pedigree of, need not be set out in bill by, 264. personal representative necessary party to suit by, for widow to elect, 236. purchaser, of, when necessary party to suit for specific performance, 240. receiver, when not granted on application of, against devisees, 1759. sequestration, revivor of, against, 662, 663. will, not necessary party to suit to execute trusts of, 190, 191. HEIRESS, . , married woman, vrill not established on admission in separate answer, otr 147, 556- 1982 INDEX. HEIRLOOMS, receiver, when appointed of, 1 764. HOLIDAYS, not reckoned in completion of time, wjien, 288, 289. HONOUR (ATTESTATION OR PROTESTATION OF), answer, when put in upon, 467. costs, reading of, on question of, 531. HOSPITAL (MASTER OF), revivor of suit by, l& HOSTILITY, personal, allegation of, when scandalous, 286. HOUSE, partition of, how effected, 705, 706. HUSBAND, accounting party, of, ge;verally necessary party, , 209, n. (5). answer, joint, of husband and wife, effect of, 147. heading of, 458, 459. ' answer, separate, of, when necessary, 141, 142 ; effect of, 148. order for, how obtained, 141. should be obtained before his answer filed, 141. answer of wife, need not join in, 141. assignment by, of wife's chattel real, effect of, 99, 100, 103. when not capable of vesting during coverture, 103. assignment of, of wife's chose in action, effect of, 95, 97, 98. on her equity to a settlement, 98. wife's concurrence in, unless under statute, immaterial, 98. assignment by, of land in possession of wifb, under judgment, 100. or under decree for payment of money, 100. assignment of wife's mortgage for years, 100. of her mortgage in fee, ico. of term, assigned with his consent, in trust for her, 101. of her term, upon condition, 102. attainder of, effect of, 70. bankruptcy of, settlement by Court in case of, 8l. chattels real, of wife, his interest in, 90 — 103. {hose in action of wife, what a sufficient reduction into possession of, 92— rgS ; and see Reduction into Possession. civil death of, effect of, 70. co-defendant with wife, 88, 140 ; when not, 140, 141. consent, wife's, to payment to him of her fund, when required, 77, 172 ; and see Married Woman. co-plaintiff with wife, when, 88 ; effect of joinder as, 87, 418. death of, effect of, when defendant, no abatement, 150, 1597. widow, taking new interest, not bound by former answer, 150. death of, effect of, on joint suit, 92 ; revivor on, 92, 1597. before execution of settlement, effect of, on survivorship, 85. discovery against, wife not made defendant to obtain, 146, 147. felony, charge of, wife not bound to answer so as to expose him to, 146. guardian ad litem of wife, infant defendant, when appointed, 145, 146. ill-treatment by, discovery of subsequent, not required in suit to establish . ante-nuptial agreement, 404, 405. joint suit, when he may continue without administering to wife, 92. jurisdiction, out of the, when suit prosecuted against wife alone, 140. service of the bill upon, 360. misconduct of, effect of, on settlement, 81, 82. mortgage by husband, and wife, resulting trust in, ipo. ne exeat, granted against, at instance of wife, 1739, li. (l). notice of decree, service upon, of, 342. INDEX. 1983 nV SB ANT)— continueil. pereonal representative of, generally necessary party, 209, 210. pro confesso, proceedings to take bill, against, '375, 376. rents reserved on under-lease 1652. estate of, conversion of, from personal to real, when permitted, ,1403. how effected, 1404. evidence against, defect in, supplied by inquiry, 543, 544. party to suit, against co-executors, when, 206. facts, all necessary, must be proved against, 133. guardian, appointment and removal of, 1384 — 1394; and see Guardian of Infant. heir, waiver of issue devisavit vel non by, 671. inheritance of. Court will not bind by discretionary act, 58. inquiry whether suit is for his benefit, 56, 64. dismissal of bill without, if suit clearly non-beneficial, 56. next friend, not granted on application of, 57, 66, 257, 258. except in another suit, 57. inquiry which of several suits is most beneficial for infant, 55. amendment under order of course, pending, irregular, 325. least beneficial suit stayed, 55 ; but if merits equal, priority prevails, 55. order for, how obtained, 56 ; made in all the suits, 56. stay of proceedings, not of itself a, 56. intruder on estate of, jurisdiction of Court over, 1401. 1986 INDEX. INFANT— contiuueii. jurisdiction, out of, allowed to come in under decree, when, 119. service of bill upon, 360. latitude allowed in cases of, 5§, 3D9. legacy of, costs of suit for, 66, 1534, lien of solicitor, in suit on behalf of, 65. maintenance of,i proceedings for, 1394 — 1400 ; and w^ Maintenance. management of property of, 1401 — 1403. married woman, examination of, not taken, 76, 77- mistake in form or conduct of suit, not bound by, 58. motion on behalf of, how made, 63, 161-3. ne exeat^ granted on afifidavil: of, 1 740. new defence of, application! for leave for infant to make, how made, 136. consequence of making, 137. discovery, bill of, may file, in aid of, 136, majority, cannot be made until attainment of, 137. next friend, required in suit of, 54. and all applications on behalf of, 54, n. {3y. bill without, dismissed with costs, to be paid by solicitor, 54. leave to amend, when given, 54 ; and see Next Friend (of Infant). notice of the decree, sei-vice of, upon, order necessary for, 342. application, for directions as to, how made; and evidence; 343. appointment of guardian- ad litem, after, 348. service, how effected, 346. pauper, appeal, at instanc^of, suit on behalf of, 34, 59. payment of fund of, to father,- when directed, 1833, petition on behalf of, 1625, J626. plaintiff, name of, when struck out as, and inserted as defendant, 57, 340, 341- pro mteresse suo, examination granted at instance of, 661. proceedings on behalf of, may be instituted by anybody, 13861 receiver appointed without suit on behalf of; 1392, 1763) 1768. repudiation of suit, effect of, 62, 63 ; where a co-plaintiif, 62, 63. respondent to petition, appointment of guardian ad litem for, I25> 1627 ; and see Guardian ad Litem (of Infant). sale of estate of, when not directed under ordinary jurisdiction, 131. foreclosure, when directed mstead, 131. partition suits, in, 711, n. (3). sanction of Court when required to institution of suit on behalf of, 257. specific performance, cannot sue for, 54, l8gi submissions, improper, not bound by, 59- suits against, 125 — 137 ; on behalf of, 52, 70. ward of Court, how constituted, and jurisdiction over, 1385 — 1388, 1406 — 1408 ; and see Ward of Court. will, execution of, when it must be proved against infant heir, 133. INFANT CUSTODY ACTS, 1875— 1877. application, how made under, 1875, 1876. custody of mother. Act not applicable where children in, 1876, 1877- next friend, not necessary on mother's application, 1875. object of Act, 1876. order, when and when not made, 1876. pauper may apply under, 1876. INFERENCES (LEGAL), answer, after statement of, in, facts cannot be used to establish a different defence, 441. answered) need not be, 441, 448. demurrer does n<5l admit, 385. pleaded, should not be, 303, 385. INDEX. 1987 INFERIOR COURT, office copy of record in, provable as exhibit at hearing, 561. INPORMAL INSTRUMENT, hac verba, should generally be set out in, 2^6, 297. INFORM-ATION, abatement of, none oti deatH df relatbri 9.' ailieadmerit of, 336, 337 ; and\ff^ Amendment of Information. charities, on behalf of, 4. distinct charities, for, wheri BmltifKrious, 282, 283. heir of grantor, when necessary party to^ 216, 217. Crown, suit' on behalf of. Or of' tHos^ under its protection, commenced by, I. 4. 253. where rights of, not immediately cOtlfcerried, 4.' filing of, 317. general nature of, I, 2. grantee from Crowii of chose in actio-A, ort bShalf of, 4. idiots and lunatics, on behalf of, 5, 67'. motion in, on behalf of whom maldei; 1613. nuisance, public, when filed in case of, 1693: parens patria, on behalf of Crown aS, 4. prosecution, not dismissible for want' of, if tit) relator, 12. relators in, 11 — 12 ; and see Relator. signature of Attorney- General and' counsel to, 3I7- to amended, 336. Solicitor-Gerier'al, whfen- defendant tb; 110. INFORMATION (AT LAW), proceedings On, not' restrained', unless- apt)licants plaintiffs in Equity, 1637. INFORMATION AND BELIEF, hi answer, equivalent to adinission, 530 ; secus, information- only, 530. INFORMATION AND BILL, abatement of, 9, 10. appropriate, when, 6, 7. bill may be dismissed, and information retained, 7. converted into information only, when, 6, 7. INHABITANTS OF A PARISH. one may sue on behalf of himself and others, when, 19S, 196. INHERITANCE, infant's. Court will not bind, by a discretionary act, 58. married woman's, not bound by joint answer of her and' her husband, 147, 148. or her or his separate answer, 148. bill relating to, not taken jtro confesso against her, 148; resulting trust of satisfied term in, loi. new trials of issue affecting, 681. , owner of, necessary party, if it is to be tplind-, 217. jurisdiction drawn from law, when, 2 1 81 suit to establish custom or modus, in case of, 218. o-wner of, when necessary party to lessee's suit, 168. to establish modus, 168 ; qr right of way,: 169. owner not necessary party when it is not to be bouild, 2^8. persons entitled in remainder or reversion up to first estate of, necessary parties, 186, 220 ; unless question only between vendor and purchaser, 221. subsequent remaindermen not necessary parties, 221. unless nature of estate doubtful, or first tenant in tail lunatic, 221. 1988 INDEX. INJUNCTION AND RESTRAINING ORDER, 1462—1502, 1631— 1689. abatement of suit, effect of, on interlocutory injunction, 51, 1594, 1 705. proceedings in case of, 51, 1594, 1705. on perpetual injunction, 1709. account of debts and liabilities, after certificate of, after order for, 1634. accounts and inquiries, preliminary, not issued after order for, 1634. action at law, when granted to restrain, 1632 — 1648. administration decree, to restrain creditor's action after, 1632 — 1635 ; and see Creditors. administration, order in summons suit, after, 735, ,736, 1634. agreements, against breach of, 1680 — 1686. alienation of property, to restrain, 1677 ; pendente lite, 1679. ex parte, usually granted, 1677. amendment of bill, not a dissolution of, unless record altered, 337, 1623, 1702. notice of motion for, waived by, 338, 1623, 1703. ancient lights, obstruction of, when restrained by, 1664. appeal from dismissal of bill for, staying proceedings pending, 1564. application for, how made, 1695 '> delay, should be made without, 1691. ex parte, when made, 1693, 1694. facts must be fully stated on application, 1692, 1693. motion for decree turned into, 15 11, 1620, 1699. stage of cause at which made, 1691. art, works of, against publication of, 1672. author, breach of covenant by, when restrained, 1681. award under Arbitration Acts, proceedinjs not restrained by, 1638. Bankruptcy, Court of, against proceedings in, 1649. banks of rivers, injury to, when restrained by, 1664. breach of covenant to keep in repair, when restrained by, 1683. bell, breach of covenant not to ring, when restrained, 1 68 1, bill making case for, and prayer for, usually necessary, 312, 1636. breach of, 1709 — 1713 ; what amounts to,- I709. acquiescence in, effect of, 1710. application for committal, how made, 1 711. evidence in support, 1712. notice of motion, form of, 1712 ; service of, 1712. production of writ not necessary, 1712. trial of question of fact, or issue, when directed on, 674, 1712. committal, order for, how drawn up and enforced, I7I3. when not ordered, I7i3- irregular, when, 1713- ^;r/a?-i'« order for committal, 1711, I7'2 ; service thereof, 171 1. none until notice of writ or order, 1711. sufficient notice, what is, i7io> i?"' actual service not necessary, 1701, i7io- remedy for, 1709* against privileged persons, and corporations aggregate, 1713. build, breach of covenant not to, when restrained, 1681. commission or continuance of wrongful acts, to restrain, 1636. common, abolished, 1631, n. (2), 1648, n. (2). Common Law Courts, against proceedings in, 1640, 1641. contempt, to restrain action on irregular process of, 1636, 1728. copyright, when granted in cases of, 1491, 1519 ; and 1668 — 1673. covenant, when granted to restrain breach of, 1680 — 1684. criminal matters, not granted to restrain proceedings in, 1637. unless plaintiff thereby seeking redress, 1637. damages in addition or substitution for, 675. assessment of, in cases of, 674. undertaking, as to, when required on application for, 1694, 1695 > ^^^ see Undertaking as to Damages. date of operation of, 1 7 10. INDEX. 1989 INJUNCTION AND RESTRAINING OKDER— continued. decree, when granted after, 312, 313, 1632. not granted before decree unless prayed for, 312, 1635. decree, to restrain action against person acting under, 1636. definition of, 1631 '; different sorts of, 1631. demurrer, injunction not usually granted pending, 428, n. (5), 1699. advance of demurrer, 428, n. (5), 1699. discharge of, for irregularity, I7I3' misstatement, when obtained on a, 1703- discovery, when granted in cases of, 1640, discovery, bill of, may pray injunction, 386, 387. dismissal of bill for non-prosecution, not prevented by injunction, 501, 502. dissolution of, 1702 — 1705. abatement, motion for dissolution or revivor on, 51, 1594, I7°4' answer or further order, when granted till, 1702, 1704. application for, how, when, and by whom made, 1703. answer treated as affidavit on, and may be contradicted, 1703. costs of, if useless, 1 705. evidence on, 1703. hearing of, right to begin on, 1 704. production of documents, pending, 1705.^ demurrer, on allowance of, 1702. discovery suit, when ordered in, 1 704. dismissal of bill on, 1702. ex parte injunction, of, because facts riot fully stated, 1692. grounds for, 1 704. interpleader suits, service of notice in, 1703. office copies of affidavits, because not in Court when moved, 1696. order, on application for, 1 704. election in cases of, 513, 1635. evidence, on applications for, 1695, 1696. affidavits, by whom made, 1696. copies of, when to be furnished, 1698. cross-examination on, how taken, 568, 1698. form of, as to title, 1696. opening of motion filed after, when admissible, 1617, 1698. office copies must be in Court, 1696. sworn after bill filed, must be, 271, 272, 569, 1696. title of, 1699. answer, treated as affidavit, and may be contradicted, 1695. cross-examination on, when permitted, 1698. discoveiy, in suits for, 1700. injury, must prove facts of, 1696, 1697. interpleader suits, in, 1695. oral, how taken, 1698. patent cases, on «x /ar/f application in, 1669, 1696. title, to be shown by, 1696. dramatic author, breach of covenant by, to restrain, 1681. ex parte, when granted, 1692, 1693. renewal of application, on notice, when directed, 1694. form of notice, 1694. undertaking as to damages, on, 1694, 1695 ; and see Undertaking (as TO Damages). foreclosure decree, when issued after, though not prayed, 1632. foreign Courts, against proceedin]gs in, 1650; after decree in Chancery, 494. forfeiture, to relieve against, 1686— 1689 j and see ForIfeiture. hearing, continuing or granting at the, 1706 — 1709. previous injunction, when granted at, without, 1707. not on a raere prima facie case, 1708. perpetual, when granted, though not prayed, 1708. 1990 INDEX. IKJUNCTION AND RESTRAINING OR'D^'R— continued. indictment, or information at law, not issued against proceedings on, unless applicant plaintiff in equity, 1637. interim order, now usually granted instead of «jr /ar/^ injunction, 1694. and see Interim Order. interlocutory, 1691 — 1706. awarded, against whom, 1 701 ; in class suits, 1 701. costs of application for, 1705. damages, security for, when, required on, 1700. damages, sufficient relief, not granted in doubtful case, where 1691. decree, superseded by, unless expressly continued, 1706. dismissed at hearing, bill may be, after interlocutory granted, 1 705. effect and object of, 1689, 1691. order for, form of, 1700 ; declaration of rights in, 1700. discovery, in suit for, 1700. principles on which granted, 1689. specific performance, not granted when Court would not decree, 1691. interpleader, in cases of, 1688, 1695. irregular, must be obeyed until discharged, 1710, 1713, issue, when directed at hearing of application for, 674, 675, 1665. judgment, when granted after, 1647. not issued to relieve against, on grounds available at law, 1638. lapse; against bishop taking advantage of, 1680. legal rights, when granted for protection of, 1664. legal title, to restrain setting up of, 1688, 1699. not granted against purchaser for value without notice, 1689. perpetual at hearing made, 1 706. legislature, not granted to restrain application to, 1637. letters, against publication of, 1671, 1672. litigation, for protection of property pending, 253. repeated, of the same matter, to restrain, 1689. mandamus, not issued against proceedings by, unless applicant plaintiff in equity, 1637. mandatory, only granted at hearing, 1689, 1708. object often effected by restrictive order, 1690, manuscript treatises, against publication of, 1671. map, piracy of, to restrain, 1670. marriage of ward of Court, to restrain, 1404, 1688. minister of dissenting chapel, against appointment of, 1680. mistake in law, not issued to reUeve against, 1639. motion, application for, made by, 1695. motion for decree, when turned into, 1620, 1699. notice of motion for, 1612, 1694, 1695. amendment of bill, a waiver of, 338, 1623, 1699. appearance, usually necessary after, 1695. form of, 161 2, 1694, 1695. service of, 1613, 1695. special leave, when required for, 1614, 1695. not granted till bill filed, 1695. nuisances against, 1661- — 1664; and j« Nuisance. outstanding terms, to restrain setting up of, 1708. parliamentary powers, to restrain excessive exercise of, 1676. partnership, in cases of, 1688. patents, in cases of, 1667 ; perpetual, made, at hearing, 1707; payment of dividends, against, 1679. payment into Court, when granted on, terms of, 1700, 1808. peace, bills of, perpetual, granted on, 1708. penalty, to relieve against, 1686 — 1689, and see penalty. perpetual, when granted, 1706, 1707. abatement, not affected by, 1 709. case must not be doubtful, 1 708. INDEX. 1991 INJUNCTION AND RESTRAINING ORD^K—cmtinued. definition of, 163 1. hearing, only made at, except by consent, 1709. prayer for, 313. personal rftpresentative, against receipt of assets by, 1693. ex parte, granted, 1693. plea, not usually granted pending, 1699. advance of plea, 1699. prayer for, usually necessary, 290, 312, 313, 1631, 1636. relief, now part of, 313. presentation to a benefice, to restrain, 1680. Probate, to restrain proceedings in Court of, 1649. proceedings for same matter, to restrain, after decree, 515, 1636. prohibition, not issued against proceedings by, unless applicant plaintiff. in equity, 1637. provisional definition of, 1631 ; continued, when, 1706. production of documents, to restrain publication or improper use of infor- mation obtained by, i860, publication of judgment in breach of agreement, to restrain, 1683. ferfrestures, to restrain, 1661, 1662. receiver, to restrain proceedings against, 659, 660. to restrain disturbance of possession of, 1777, 1778. repair, injunction not precluded by covenant to leave premises in, 1685. rifle range, to restrain injurious use of, 1664. scandal in bill, not granted in case of, 1699. secrets, against disclosure of, 1677. service of, how effected, 1702. corporation aggregate, on, 1702, n. (3). minutes of order for, of, when sufficient, 1701. sequestrators, to restrain proceedings against, 660, 661. ships, in cases of, 1680. to restrain unauthorized employment of, 1680. to restrain sailing of, 1680. to restrain transfer of interest in, 1680. specific chattels, to restrain sale of, 1679. streams, pollution of, when restrained by, 1664. tenants of land, to restrain, breach of covenants by, 1683, 1684. timber, to restrain removal of felled, 1680. title of book or periodical, to restrain piracy of, 1672. trade, to restrain breach of covenant not to, 1682. trade marks, in cases of, 1672, 1673. made perpetual at hearing, 1 707, 1 708 ; and see Trade Marks . transfer of negotiable security, to restrain, 1677, 1693. ex parte, usually granted, 1677, 1692. forged endorsement, in case of, 1677. transfer of stock, to restrain, 1678. transfer of wife's property by husband, to restrain, 1680. trespass, in cases of, 1654. trust property, to restrain sale of, 1679. trusts, decree for performance of, perpetual injunction after, 1709. ultra vires, to restrain acts of corporation, which are, 1676. wards of Court, to restrain marriage or removal of, 1393, 1404 ; and see Ward of Court. waste, against, 1652 — 1654 ; where equitable, 1659 — ^1661. perpetual, made, at hearing, 1707 ; and see Waste. will, after absolute decree to establish, perpetual injunction granted against heir, 1708, 1709. writ of, preparation and issue of, 1702. second not usually issued on making perpetual, 1 709. written bill, in cases of, 316, 350. ,19.92 INDEX. INQUIRY, appeal from order directing, after it has been made, 1573. class, as to, when directed, l^^, 619 ; practice thereon, 177. defective evidence, when directed, in case of, 543. ground must be laid for, in pleadings, 370, 271. heir, for, when directed in charity suits, 217. next of kin, as to, when directed, 619. need not be preliminary to taking accounts, 619. numbering of, in decree or order, .1627. prima facie title made by plaintiff, when directed, in case of, 619. INROLMENT. See Enrolment. INSANITY charge of, particular acts of madness may be proved under, 538. husband of executrix, of, receiver, appointed, in case of, 1757. presumption, in cases of, 536 ; lucid interval, where allegation of, 537. INSOLVENT, executor, of, receiver appointed in case of, I7S7> 1758. situation of, as to after -acquired property, 50, 51. principal or surety, not necessaiy party to suit for contribution, 226. but plaintiff may elect to make him a party, 226, 227. And see Assignees in Bankruptcy — Bankrupt — BANKRUP'ir\-. INSPECTION. documents, of, 1836 — 1863 ; and see Production of Documeni : . patent cases, in, 1667, n. (3), INSTITUTION, . one of several proprietors or subscribers to, may sue on behalf of himself and others, when, 196; not if dissolution sought, 196. INSTRUMENT, cancelled, bill for re-execution of, need be accompanied by affidavit, 314. execution of, proof of, by attesting witness, when not necessary, 550. informal, should generally be set out in hcec verba, 296. lost bill, to obtain benefit of, must be accompanied by affidavit, 313, 314. secus, if suit merely for discovery or delivery, '313, 314. ne exeat, in cases of, 1733- onus probandi, lies on party disputing, 535. reference to, how made in bill, 298 ; effect of, 298, 299. statement of, in bill, 297. statutory, how stated, 298. wi-itten, need not be stated te be, if not required at law, 297, 298; INTERESSE SUO (EXAMINATION PRO), sequestration, when granted in case of, 658 — 661. dispensed with, when, 661. infant, granted at instance of, 661. obtained, how and by whom, 660, 661. pauper, granted at instance of, 34, 661. INTEREST, co-plaintiffs', of, need not all be equal, 284. defendant's, bill must show, 266. exception, if member or oiiflcer of corporation, 113, 246, 266, 304. demurrer for want of, in defendant, 266, 392 ; in plaintiff, 260, 392. disclaimer, for want of, 434. distinct, bill against several persons having, when not multifarious, 278, 281^. persons having none, or several and distinct, should ndt be co-plaintiffs, 251 ; objection, how taken formerly, 251, 252. plaintiff's must be shown, 259 — 261 ; must be subsisting, 261. minuteness or remoteness of, immaterial, if indefeasible,' 262. production of documents, what sufficient to entitle party to, 1850, 1853. want of, in defendant, how taken advantage of by him, 249. INDEX. 1993 INTEREST (OF MONEY), and see Master's Qffice. balance, on, not decreed under prayer for general relief, 307'. dower, not allowed on arrears of, 717. incumbrances, on, how kept down by receiver, 1787'. receiver, when charged with, 179 1. INTERIM ORDER, .;ar/a?^«injunctipn, issued instead of, 1694: form of, 1694. service of, how effected, 1702. undertaking as to damages, on, 1694, 1695; aai see Undertaking (as to Damages). INTERLOCUTORY APPLICATIONS, 1604—1607. affidavits on, search for, 577 ; time for filing, 577. costs in the cause, when, 1466. reservation of, form of, 1467 . definition of, 1604. evidence upon, mode of taking, 568. motion, by, 1604, 1608 — 1624 ; and see Motions. order on, 1606. different sorts of, 1606. enforced, how, 1607. motion to dismiss bill for non-prosecution, not prevented by, 501, 502. special, definition of, 1606. perpetual injunction, not granted on, 1709. petition by, 1605, 1624 — 1630; and «« Petitions. INTERMEDIATE ESTATES, contingent, and taker unascertained, necessary parties in case of, 187. when taker comes into esse pending suit, 188. persons entitled to, prior to first vested estate of inheritance, necessary parties, 186, 220, 222. persons entitled to, when necessary parties to redemption suit, 215. INTERPLEADER, plaintiff's solicitor, by, when accepted, 315, n. (3). answer read against co-defendant in suit for, 531, 532. pro confesso, may be taken, Ii6. costs, in cases of, 1503 ; and see Costs. injunction, in cases of, l688, 1695. notice to dissolve, service of, 1703. jurisdiction, defendants out of, against, 116. security for costs, from defendant out of the jurisdiction, 22, 23. INTERPRETERS, professional confidence, rule as to, extends to, 411. INTERROGATING PART, of bill, 290 ; now abolished, 291. INTERROGATORIES (FOR EXAMINATION OF WITNESSES), 582, 583. INTRUDER, estate of infant, on, jurisdiction of Court over, 1401. INTRUSION, information of, may be filed in Chancery, 4. INVESTMENT IN PURCHASE OR ON MORTGAGE OF LAND, 1376—1379- approval of proposed, how obtained, 1377. • conditional contract for, 1377. payment of purchase or mortgage money, 1379. title, holding, when sanctioned, 1378. title, inquiry into, on, 1377. prosecution of, 1378. preparation and approval of conveyance or mortgage deed, 1379. 1994 INDEX. IRREGULARITY, affidavit of service, in, order taken on, discharged for, 1615. process grounded on, vitiated by, 576- amendment of bill, in order for, 336. amendments and exceptions together, order to answer, when discharged for, 329- answer, taken off file for, 480. attachment for non-obedience to decree, when set aside for, 649. bill, in frame of, demurrer for, 417. course, order of, discharge of, for, 1606. application for, how, when, and to whom to be made, 1607. de bene esse in depositions taken, or order to take, when taken advantage of, 594- demurrer taken off the file for, 426. disclaimer, in, 434, 435. enrolment of decree or order, vacated for, when, 635. injunction or restraining order, discharge of, for, 1713. jurat, in, effect of, 469, 576. ne exeat, discharge of, for, 1745. new trial of issue on ground of, 680. order, discharge of, for, should be obtained at once, 626, 1 686. sale not invalidated by, unless in substance, 132. stop order, discharge of, for, 1719. sequestration, in, 650, 651. ISSUE, assizes or Nisi Prius, trial of, at, when directed, 668. directed, when, 668 ; and see Fact (Question of). further hearing after trial of, 697 — 699 ; and see Further Hearing. trial of costs of, 694, 695, 699, 1472, 1503 ; and see Costs. de bene esse, taken admission of, 584. ISSUE (MATTERS IN), amendment, not necessary to put in issue facts stated in answer, 323. evidence, confined to matters in, 537. general charge, effect of, in putting matters in issue, 538. joinder in, filing replication, 522. putting matter in, when leave to amend given at hearing, for purpose of, 331; in infant's suit, 332. JEW, answer of, how taken, 461. JOINDER OF SEVERAL DEFENCES, how far permitted, 531, 532 ; and see Defence to Suit. JOINT ACCOUNT, husband and wife, of, payment to, no bar to survivorship, 93. decree made against, although co-debtor out of the jurisdiction, 115. JOINT DEMAND, contribution, parties to suits for, 226. principal and surety must be, unless proved to be insolvent, 226. one of several joint debtors, when suit for, may be against, 226, 227. co-executors, in case of, 227. 6o-obligors, in case of numerous, 227. joint breach of trust, in case of, 227. joint factors, in case of, 227. persons liable, numerous, where they are, 227. JOINT INTERESTS, with plaintiff, persons having, necessary parties, 152, 153. JOINT PROPRIETORS, may sue on behalf of themselves and others, when, 195, 196. INDEX. 1996 JOINT-STOCK COMPANY, all members of, not necessary parties to suit against, 228. . P"."ciples on which Court Acts in such cases, 229. mdividual members may sue directors, 19, 20 ; as may public officer, 19, 20. suit against, by, 19, 20. unmcorporated, assignor of shares in, when necessary party, 159, JOINT-TENANTS, death of, revivor; when not necessary on, 1597. legacy, of, when necessary parties, 170. mortgage, of, when necessary parties, 170. parties, when necessary, 167. receiver, when appointed between, 1 76 1. JOINTRESS, demurrer by, to bill for discovery of jointure deed, 404, u. (4) JOURNIES, receiver, when allowed costs of, 1782. JUDGE, meaning of word in decree or order, ^8. Superior Court, of, signature of, judicially noticed, 548. JUDGE'S NOTES, evidence, of what was proved at trial of question of fact, 693, 694. new trial, application for, on motion for, 693, at law, 694. JUDGMENT, assignor of, when necessary party, 158. injunction, when granted after, 1647, 1648. publication of, in breach of agreement, when restrained, 117. relief against, not granted on grounds available at law, when, 1638. stop order, in aid of, 1716. wife's, land held under, assignable by husband, 99. wife's, effect of, right by survivorship, on, 71, 94. JUDGMENT CREDITORS. See Mortgage, Master's Office. JUDICIAL NOTICE, facts of which it is taken, 386, 548. averment of facts contrary to, not attended to, 14, 15, 386. JUDICIAL SEPARATION, wife who has obtained, sues and is sued without husband, 70, 140. JURAT, affidavit, to, 575,. 576. expression of time and place, in, 575. place of, 575. special, 575 ; where oath not administered in usual manner, 576 answer, to, 466, 468, 469. cancellation of, effect of, 469. ■ expression of time and place in, 466. foreigner, of, 468. infant, of, 469. lunatic or person'of unsound mind, of, 469. marksman, of, 467. married woman, of, 145, 146, 469, 470. place of, 467. several defendants, where, 467. signature of official, to, 467. special, when oath not administered in common form, 467, 468. waiver of irregularity in, 469, 576, 1996 INDEX. JURISDICTION, ,: affidavit, before whom sworn, out of the, 569. answer^ how taken out of the, 466. averment of, in bill, 290 ; now part of stating part, 291. bankrupt cannot sue for property out of the, 49. - demurrer.to, grounds of, 388 — 403 ; and see DEMURRER. documents out of, production of, ordered notwithstanding, 452, 1849. evidence, how taken out of the. See Examination (of Witnesses Commission for). objection to, how taken, 391. stage of cause at which it should be taken, 391. service out of ; see Service. JURISDICTION (PERSON OUT OF), absence of, must be proved at hearing, 118. course, where proof defective, 118, 542, 543. decree, when allowed to come in after, 118. order for leave to come in, how obtained, 1(9 ; in case of infants, 119. decree; coming vrithin jurisdiction, after, when leave to serve bill on, 1 18 defendant, named as, and fact stated^, 1 1 8. demurrer, for want of equity, by, 388. husband out of, suit prosecuted against wife alone when, 141. incidentally interested, not necessary pSlrty, 115. infant, defendant, appointment of guardian for, 128. interpleader, against, ii6. joint debtor, when not necessary party, 115. jointly interested with plaintiff, when cause proceeded with in absence of, 178, 179. married woman, examination of, how taken, 75. ne exeat, not granted at instance of, 1 738. party, not considered a, till served, 119. party, necessary, if interest principally affected, 117. defect arising from absence of, cured by appearance at hearing, 118. receiver, when granted against, 1752 j executor, in case of, 1756. security for costs, when required from, 20, go, 91. conduct of cause, when he has obtained, 22, 23. cross bill, in case of, 22, 23. interpleader suit in, 23. petitions, in case of, 1625. revivor by, 22, 23, 1590; and j^f Costs (Security for). suits again,st, 115 — 120 ; by, 20 — 32. JURY, default of, new trial at law on ground of, 685. discharge of, improper, new trial on ground of, at law, 685. influencing, improperly, new trial at law on ground of, 689. interested, new trial at law on ground of, 685. misconduct of, new trial at law on ground of, 685, 688. JUST ALLOWANCES. See Master's office. JUST EXCEPTIONS, exhibits, order for proof of, at hearing, made, saving, 563. KIN (NEXT OF). See Next of Kin. LACHES, interlocutory injunction, effect of, on application for, 1691. on motion to dissolve, 1 764. LAND, agreement relating to, must be alleged to be written, 297. but allegation of signature not necessary, 297. decree for, not made under prayer for annuity, 304. new trial of issue, when matter relates to, 681. INDEX. 1997 LAND — continued. one of several owners of, may sue for self and others for modus, when, '95. 196- . ' parties to suits for, 219. sequestration, from what time land liable under, 658. LANDLORD, forfeiture of lease, when restrained from enforcing, 1688, rights of, how affected by appointment of receiver, 1779. LAPSE, bishop, when restrained from taking advantage of, i68o. LAW, bill, reading of, at, by defendant, 529. demurrer that Court of, is proper tribunal, 389 ; and see Demurrer. depositions in Chancery not admitted at, unless witness dead, 552. inferences of, not to be pleaded, 303, 385 ; and see Inferences (Legal). married woman, rules of, as to suits by, 70. followed in Courts of Equity, 71 ; but no distinction made between personal property accrued before and after marriage, 71. parties to suits, where jurisdiction withdrawn from, 169. policy of, admissions contrary to, not permitted, 534. proceedings in Chancery, proof of at, in civil and criminal cases, 553- questions of, how decided by Court of Chancery, 612, 613, 668. with assistance of Common Law Judge, if necessary, 613. secondary evidence of documents, when admitted at, 558. will of real estate, how proved at, 555. LEASES, assignment of, without licence, waiver of forfeiture necessary in suit for discovery of, 311, 312. bill to rescind several by same lessors, multifarious, 276. receiver, sanction of Court required to, 1785 ; how obtained, 1785. sanction of Court to proposed, how obtained, 1381, 1382. , conditional contract, 1381. evidence in support of application, 1 38 1. settlement of, 1381. LEASEHOLDS. sequestration, not sold under, 655. LEAVE TO ATTEND PROCEEDINGS. See Proceedings. LEGACIES, double, onus probandi, in cases of, 536, n. (3). forfeiture of, on mai-riage without consent, discovery as to, need not be given, 402. lapsed, costs of administration suit, not thrown upon, 1534. real estate, charged on, legatees necessary parties to suit to raise, 183, 184. cost of suit to raise, when estate insufficient, 1529, 1530. revoked, costs of administration suit not thrown on, 1534- specific, personal representative not necessary party to suit for, after assent, 205 ; not liable to costs of administration suit, 1533- LEGACIES AND ANNUITIES. ^^^ Master's Office. LEGAL ESTATE. attornment to receiver, effect of on, 1777. persons having, necessary parties, 153 ; as trustees, 164. redemption suit,, in, where mortgage assigned by mortgagee, 215. receiver, when appointed against, 1754 — 1759 ; and see Receiver. 1998 INDEX. LEGAL TITLE, action formerly directed to establish, when, 669, Chancery, Court of, determined by, 668, 1668. dispute relating to, receiver not appointed ill case of, 1 759« unless under special circumstances, 1 759. as when property cannot be let, 1760. injunction to protect, principle on which granted, 1664, 1666. application must be made without delay, 1665 injunction to restrain, setting up of, when granted, 1688, 1689. not against purchaser for value without notice, 1689. perpetual, made at hearing, 1706. receiver not appointed on application of person having, 1 759- LEGATEE- See Master's Office. conduct of decree given to, before creditor, in concurrent suits, 493. creditors action restrained after administration decree, on application of 1633- costs of, 1531, 1532, 1537 ; and tee Costs. evidence in former suit against executor may be read in suit of, 550. executor who has assented not necessary party to suit for legacy by, 160, 161 party, not necessary to suit against trustee for payment of legacies, 214. or for execution of trusts of surplus, 214. payment out to legatee of person to whose account fund stands, not ordered in absence of personal representative, 1825. pecuniary or residuary, unnecessary party to suit to charge or recover personal estate, 210 ; except in cases of ademption, 223, n (4) real estate, if legacies charged on, when necessary party, 183, 184- administration decree, at instance of, without others, 178, 183, 342. residuary administration decree at instance of, without serving others, 176, 183, 195, 342. specific, of wife's paraphernalia, when necessary party to bill relating to, 211. suit on behalf of himself and others, when permitted, 194, 195. suit by, against debtor to estate, when permitted, 160, 205, 268, 269. LEGISLATURE, application to, not restrained, 1637 ; exceptions, 1637. LEGITIMACY, presumption of law in cases of, 53^* LENGTH OF TIME, demurrer for, 395. LESSEE, inheritance, owner of, when necessary party to suit by, 168. to establish modus, 168; right of way, 169. lease made without prejudice to right of, 219. lessor not necessary party to suit by lessee for tithes, when, 169. original, necessary party to suit by lessor against assignee of lease, 165. partition, when necessary party to suit for, 219. party, generally not necessary party, 168, 219. but may be to bill to restrain ejectment brought against him, 168. tenant in common of, necessary party to partition suit, when, 167. necessary parties to suit for partition by, 168. title of, statement of, in bill for tithes, 265. undivided share, of, costs of, in partition suit, 711, 712. LESSOR, general right, necessary party in suit to establish, by lessee, 168. lessee, when necessary party to suit against assignee by lessor, 165. party, when not a necessary, to lessee's suit for tithes, 169. parol, of tithes, when necessary party, 159. INDEX. 1999 LESSOR AND LESSEE, plaintifFs title, in suits between, how stated, 265, 266. LETTERS, agreement contained in statement of, 297. discovery or production, exemption from, 404 — 415, 1851— 1858. evidence, when admissible as, although not pleaded, £40. exhibits, provable as, at hearing, 561. publication of, restrained, when, 1671, 1672. thirty years old, prove themselves, 554. LEWDNESS, charge of, particular acts of incontinence provable under, 538. LIABILITIES, distinct, bill against persons under, when not multifarious, 278. LIABILITY, disclaimer, improper when defendant is under, 434, 435. defendant's, to plaintiff, must be shown, 266. joint persons, under, to plaintiff, when necessary parties, 225. joint and several, persons imder, to plaintiff, when necessary parties, 222, 225. LIBEL, discovery of facts tending to establish, to be given, when, 401. LIBERTY TO APPLY, reservation of, 621 ; effect of, 621. application, how made under, 621, 622. LICENSE, to carry on one trade, extent of, 1685. LIEN, commissioners of partition have none on commission, 712. dismissed defendants, have none on plaintiff's fund, 1507. purchaser's, on purchase-money, in case of sale by Court, 1370. specific, person having, when party to bill relating to personal estate, 2H. LIFE INTEREST, purchaser of, when liable to pay interest, 1355. wife's right to a settlement attaches to, 72, 83. except against husband's particular assignee for value, 83. wife entitled to arrears of, not received by husband, 83. LIFE (TENANT FOR), costs of, how raised, 1538. leaseholds, of, bound to renew, receiver, when appointed against, I7S9- partition, when remainderman not necessary party to suit for, by, 168. successive, form of order for payment of interest to, 1830. waste by, restrained, when, 1652. LIGHTS (ANCIENT), obstruction of, when restrained, 1664. LIMITATIONS, executory, persons claiming under, when necessary parties, 187. over, discovery must be given where forfeiture has the effect of, 403, 404, unless the disqualification statutory, 403. persons claiming under, when necessary parties, 184, 220. LIMITATIONS (STATUTES OF), dower, in suit for arrears of, 717. mortgages, in case of. See Mortgage. answer, insisting on benefit of, by, 443, 444. demurrer, on the ground of^ 395. dower, when, to suit to recover arrears of, 717. 5000 INDEX. LIQUIDATED DAMAGES,-, . . equitable relief, when refused in case of, 1686. LIS PENDENS, amended bill, when it operates as, 3 19, registry of, statutory provisions as to, and how effected, 318. satisfaction of, how entered, 318; special case, registry of, as, 1868. LITIGATION, costs of, a just allowance, when, 1544. foreign Court, in, appointment of receiver pending, 176,1. injunction and receiver granted, pending, although misjoinder, 253. Probate (Court of), in, appointment of receiver pending, 1 761. repeated, of the same point restrained, 1689. LIVES, opening biddings in sales of property held on, 1 156. LONG VACATION, . commencement and termination of, 327. LOSS OF INSTRUMENT, equitable relief in case of, 313, 314 ; and see Instrument. LOT, shares, when drawn by, in case of partition, 706. LUCID INTERVAL, onus probandi, rests on party alleging, 537. LUNACY; defendant, oi, pendente lite, supplemental order on, 1585, 1586. demurrer, on the ground of plaintiff's, 67. disability arising in case of plaintiff 's, 53, 67; of defendant's, 104, 138. plaintiff, oi, pendente lite, supplemental order on, 1586. plea of plaintiff's, 67. transfer of wife's fund to credit of husband's, a bar to her right by survivor- ship, 93. LUNATIC, answer of, put in by committee or guardian, 138, 469. heading, of, 459 ; jurat to, 459. read against him, whether it can be, 139, 531. Attorney-General, information by, on behalf of, 5, 67. committee, sues by, 5, 67. necessary party to suit against, 138, 204. or on behalf of, 68 ; miAsee Committee (of Idiot or Lunatic). co-plaintiff with Attorney-General or committee, named as, 5, 67, 167. unless an idiot, 67. defence conducted by committee, 138. , , unless committee is plaintiff, petitioner, or adversely interested, 138 ; and see Guardian ad Litem (of Person of Unsound ok. Weak Mind). demurrer on the ground that plaintiff is, 67. demurrer of, filing of, when committee adversely interested, 425. mortgagee, costs of, 1478, 1479. ne, exeat, issued at instance of, on affidavit of committee, 1739, 1741. plea on the ground that plaintiff is, 67. purchaser, undtr sale by Court, discharge of, 1373. relator, cannot be a, 9. setting aside contracts by, 68. special case, concurrence of, in, 1865. suit by, to avoid his own act, when permitted, 5, 67. suits on behalf of, 67-70. LUNATIC (NOT SO FOUND BY INQUISITION). See Unsound or Weak Mind (Person of). INDEX. 2001 MADNESS, particular acts of, provable under charge of insanity, 538. MAINTENANCE, demurrer because discovery will subject defendant to penalties of, 398. infant, , of, proceedings for, 1394 — 1400. > 1 application for, how made, 1398; when necessary, 1394, 1395. capital not usually allowed out of, 1396. expenditure of, guardian not bound to account for, 1400. father's lifetime, not usually ordered in, 1395 ; exceptions, 1395. fund in Court, out of, application for, how made, 1394. increase of, application for, how made, 1398. inquiry as to, when directed, 1399. mother's ability, allowed without reference to, 1 398. payment of, where infant and guardian abroad, 1399. power for, usually inserted in settlements, 1394. suit, ordered without, when, 1394. married woman, her right to, out of her own property, 81 — 87. advances for, by stranger, repaid, 82 ; and see Settlement (Equity TO). unsound mind, of person of, allowance for, when and how ordered, 1399. MALA FIDES, enrolment of decree or order vacated for, when, 635. MALICE, general, allegation of, when scandalous, 286. MANAGEMENT (OF PROPERTY), Chambers, proceedings at, for, 1380 — 1381'. infant, of proceedings for, 1401 — 1403. MANAGER, appointed, when and how, 1766, n. (o), 1799- collieries and mines, in case of, 1761 — 1763, 1780, 1800. partnership, in cases of, 1800. commission, when entitled to, 1 801. death of, provision for, 1801. priority, has none over mortgagee, when, 1801. security, when dispensed with, 1800. MANDAMUS, proceedings on, not restrained unless applicants plaintiffs in Equity, 1637. MANURABLE, seisin of things, how alleged, 295. MANUSCRIPT, treatises, publication of, restrained, when, 1671. MAP, piracy of, restrained, 1670. MARITIME LAW, judicially noticed, 386. MARKET, tolls, receiver of, appointed, 1764. MARKSMAN, affidavit of, how taken, 575 ; jurat to, 575. answer of, how taken, 466 ; jurat to, 466—467. MARRIAGE, concealed with husband's consent, wife's answer read against him, 147. defendant, y?ff!^ Wif, of, no abatement, 150. disputed, service of bill, in case of, 352, n. (5), 360. forfeiture on, without consent, discovery not compelled, 145, 146, 402.- 2002 INDEX. M ARRI A G¥.— continued. guardian, feme sole, of, determination of office, 1391. law, effect of, on neglect to sue at, 70- order for payment, after, effect of, 78: perpetuation of testimony of, bill for, does not lie at instance of tenant in tail and his children, 261 ; or of eldest son of heir in tail of a dignity a6l. fhxBiiS, fime sole, of, an abatement, 91, 1580, 1581: revivor on, Vfho entitled to obtain, 1585. motion for, or dismissal of bill, on, 511. order of revivor, when not necessary, 91, 92. want of, effect of, 90, 91. second, discovery as to, where it has effect of limitation over, 402. ward of Court, of, proceedings on, 1404 — 1409. consent of Court necessary to, 1404. application for consent, how made, 1406 ; evidence in support, 1406. adjournment to Chambers, of, 1406 ; proceedings thereon, 1406, 1407. payment or transfer of fund to trustees, 1407. consent of Court, without, a contempt, 1405 ; proceedings thereon, 1405. discharge of husband, 1406. injunction to restrain, when and how granted, 1404, 1688. evidence on application, 1404. MARRIED WOMAN, acknowledged deed, payment out of Court to, without, 79, 1832. address of, it plaintiff, usually stated in bill, 293. advances by stranger for maintenance to, when repaid, 82. annuity of, not bound by husband's assignment or release, 99. answer, admissions in how far binding, 147. infant, put in by guardian where she is, 147, 469, 470. not binding, when she takes a new interest, 150. proceedings in default of, 141, 142, 143. read against husband, when, 147. title of, when marriage after bill filed, 458. answer, separate, of, 140, 141, 145, 146, 147, 469, 470. admissions in, how far binding, 147. jurat to, 145, order necessary for, unless to husband's bill, 145. or accepted by plaintiff, 145. when plaintiff may obtain order for, 142, 143. sworn and filed, how, 145, 146, 469, 470. time for, 145, 146, 469, 470. appeal of, is by next friend, 150. appointees under will of, when necessary parties, 184. when some allowed to sue for all, 184, 195, 196. .award giving her fund to husband, effect of, 94. bill, service of, when authorised, 352. * chattels real of, her right by survivorship to, and effect of husband's assign- ment on, 103 — 199 ; and iee Survivorship (Right by). chose in action of, right by survivorship to, and effect of husband's assign- ment on, 92, 98 ; and see Rbduction INTO POSSESSION — SURVIVOR- SHIP (Right by). consent of, to payment to husband required, 72, 73, 77 ; effect of giving, 76 — 77. foreign domicile, when consent not taken in case of, 77. refusal, effect of, 80. settlement, nature of, in case of, 81, 86. order, when made by, 80. revocation of, 77- separate estate, not required in case of, 79. unless payable to husband, 79. separate i^caipt, required where fund to be paid to her, 78. taken, how, 73 — 75 ; and see Examination (of JMaeried Woman). death of, in joint suit, effect of, 91. INDEX. 2003 MARRIED 'WOUKS— continued. death of, abatement on, where defendant, 151. death of, before settlement executed, effect upon survivorship, 85. debt due to, effect of proof in bankruptcy by husband for, 94. decree, no personal, made against, 148. decree or order for payment to husband in her right, effect of, 92, 94. defence, when and how she may obtain order for separate, 142, 143. defendant, not made a, for purpose of discovery only, 249. or for discovery against her husband, 146. demurrer, separate, of, 425 ; order for, necessary, when, 425. deposit of her property in Court by husband, effect of, 93. equity to settlement of, 72 — 86 ; and see Settlement (Equity to). felony, need not answer so as to expose a husband to charge of, 146, 398. feme sole, when permitted to sue as, 71. statement of fact in bill necessary, 293. feme sole, suit instituted by, as, stayed, 91, u. (5). foreclosure decree binding on, 149. forfeiture, need not answer so as to expose herself to, 146. fund of, formerly carried to separate account. present practice, 73 trustee may pay to husband before suit, 81 ; secus, after suit, 81. heiress, will not established on admission of, 148, 556. husband, defendant to suit against her, 88, 140; exceptions, 140, 141. husband, joinder of, as co-plaintiff, 88 ; effect of joinder, 89, husband, when she may sue at law without, 70. hufsband, when she may be sued by, 140. in ant, defends by guardian, 128, 145, 146 ; and see Guardian ad Litem (of Infant). inheritance of, not bound by admissions in her separate answer, 147. or in her joint answer with her husband, 147. or in husband's separate answer, 147. bill relating to, not taken /ro confesso against her, 148. resulting trust of satisfied term created out of, loi. interest of, in chattel real, incapable of vesting during'coverture, not assignable by husband, 103. judgment of, effect of husband's assignment of, 100. judgment in action for her property, effect of, 95. land held by, under decree, until payment, effect of husband's assignment of 100. legacy of, effect of appropriation of fund to meet, 93. life interest, entitled to arrears, if not received by husband, 84. mortgage in fee, effect of husband's assignment or bankruptcy, 190. mortgage for years, effect of husband's assignment of, 100. mortgage by her and husband, resulting tnist in, 100. motions on behalf of, how made, 86, 87, 1613. «,? ^j;^a/ granted at instance of, against husband, 1739, n. (i). ne exeat not granted against, if executrix or administratrix, 141, 1738. new defence, when entitled to make, 1 50. next friend, sues by, 86 — 91 ; and see Next Friend of Married Woman. notice of decree, service upon, of, 342. partition suit, costs of, 711, n. (4). party to suit for her own property, must be, 71, 72. pauper, appeal by, 34, 35, 89, 1573. suit by, without next friend, 34, 35, 89. payment into Court of her fund to credit of joint cause, effect of, 93 ; of joint account, 93, 1818, n. (2). payment to her and husband, effect of decree or order for, 95. payment to trustees for her, of her fund, effect of, 93, 94. payment out to, as personal representative, form of order for, 1831. personal estate of, bound by admissions in her joint or separate answer, 147, petition on behalf of, 1625. 2004 INDEX. MARRIED ^OUKH— continued. pro confesso, when bill maybe taken against, 375. process against, not issued withctut leave of Court, 155, 352. promissory note of, effect of part payment to husband, 94. , release by husband of her chose in action, effect of, 98. reversion of, assignment of under statute, 96, 99. husband's assignment, not bound by, 96. though prior estate previously assigned to her, 96. reversionary chose in action, form of stop order on, 1718. reversionary fund in Court not paid out to, on obtaining assignments of pre- vious interests, 79- sale under decree, bound by, 150. satisfied attendant term of, not bound by husband's assignment, loi. Scotch law as to her chose in action, 103. separate estate of, bound by joint or separate answer, 147. separate estate of, how charged, 148, 149. discovery, as to, when bound to give, 146. leave given to apply for payment of costs out of, when, 149. plea of previous suit by husband and wife bad to suit by her alone, 86, 87. suit against husband in respect of, 88. special case, concurrence of, in, 1865. suits against, 140 — 151 ; by, 70 — 103. suit by next friend on her behalf, without her consent, dismissal of, 88. suit, institution of, by, subjects her to liabilities oS. feme sole, 91. suit, when prosecuted against, alone, though husband co-defendant, when, 140. survivorship, right by, 92 — 103. See Sdrvivorship (Right by). term of, effect of husband's assignment upon condition, of, 102. transfer of her fund to credit of husband's lunacy, effect of, 93. transfer of property of, by husband, restrained, when, 1680. trust term of, created with consent of husband, not assignable by him, loi. under lease by husband of her term, effect of, 102. when entitled to rent reserved by, 102. witness, tender of expenses to, 579. MARSHALLING OF ASSETS, parties to suits for, 195. MASTERS OFFICE, 'ABSTRACTS OF TITLE, PROCEEDINGS ON, I165. order 390, as to abstract of title, 1165. Master may now enquire into title! under this order without any order of of court, 1165. what is an '"abstract" of title. purchaser has a right to call for an abstract at vendor's expense, 11 66. form of an abstract, I166, I167. when abstract should commence, II 68. vendor may be compelled to bring into Master's office all documents in his possession, 1168. marriage of vendor to be stated, 1 168. legal and equitable title should be deduced, Ii68. title deeds, possession of should be shewn, 1168. FREEHOLD PROPERTY, ABSTRACTS OF TITLE TO, II69. deeds, as to abstracting, 1169 — 1183. date and parties, II 69. recitals, 1 169. testatum, 11 70. consideration, 1170, 117'- granting part, 1 1 72, 1 1 73. parcels, 11 73- habendum, H74- reddendum, 11 74- INDEX. 2005 MASTER'S OFFlC^—contmued. ABSTRACTS OF TITLE TO FREEHOLD PROPERTY — continued. declaration of uses, and the person in whose favor it is made, 1175. declaration of trusts, 1 1 76. conditions and provisoes, 1 177. powers, 1 1 77. covenants, 11 78. execution, 1179, 1180, 1181, 1182. receipt, 1 182. tenants in fee, titles under, 1229, 1230. tenants in tail, 1230, 1231, 1232, 1233. tenants for life, 1233, 1235. ienants pur autre vie, 1235 — 1237. remaindermen and reversioners, 1238, 1239. cross remainders, 1239. ABSTRACTING WILLS, AS TO, 1183 — 1185. revocation, 11 84. attestation, II 84. codicils, 1 1 84. probate, 1185. ABSTRACTING, AS TO MISCELLANEOUS DOCUMENTS, 1 1 85 — 1 1 87. letters of administration, 1 185, Acts of Parliament, private, 1185. judgments, 1186. decrees, ri86. contracts for sale, 11 87. ABSTRACTS OF TITLE TO PROPERTY, NOT FREEHOLD, I187. leaseholds, 1187. personalty, 1 187. professional duties connected with abstracts of title, 1 187 — 1 192. vendor's solicitor, duty of, 1187, 1188, 1189, 1190. purchaser's solicitor, duty of, 1191, H92. mortgages, vendor'' s liens, 1193 — 1194. crown debts, 1195, II 96. executions, 1197. taxes, II 98. special improvements, 1199 — 1202. mutual insurance companies, 1202 — 1203. dower, 1204 — 1206. curtesy, tenancy by the, 1206. legacies, 1206 — I2IO. counsel, duty of, 1210 — 1218. title, general ndture of , which must be produced, 1218 — 1224. commencement of abstract, 1224 — 1229. LEASEHOLDS AND CHATTELS REAL, I24O — I2S3. terms for years in gross, 1246. attendant terms, 1248. tenants from year to year, 1250, 1251. ABSTRACTS, EVIDENCE BY WHICH, SHOULD BE SUPPORTED, lajl. ordinary contents of an abstract, the evidence of, 1253. deeds, 1253, 1254, wills, 1255. letters of administration, 1255 — 1265. registration, 1265^1279. acts of Parliament, 1279. records and proceedings in Chancery, 1280. decrees, 1281. duty of purchaser's solicitor as to, 1281. how far a purchaser will be protected by a decree obtained in an imper- fect suit, 1 28 1. 103 2006 INDEX. MASTER'S OFFI CK— continued. ABSTRACTS, EVIDENCE BY WHICH SHOULD BE SUPPORTED — continued. mere irregularities in decree, not sufficient grounds for impeaching a sale, 1 28 1. a stranger purchasing not affected by proceedings in suit, how far, 1282. in case of fraud, 1282. same rule applies, when title derived under decree, and final order of fore- closure, 1282, 1283. decree of foreclosure against an infant, should give him a day to shew cause after attaining twenty-one, 1284. decree not absolute until notice of it is served upon infant, after twenty-one, 1284. in suits, for partition, or sale, decree effectual for apportionment, or convey- ing of the interest of a married vvoraan, infant, or lunatic, 1284. vesting orders, 1285 — 1289. authority of Court, to make, 1285. effect of, 1285. doubtful, if Court, can make a valid vesting order transferring estate of a married woman, 1285. as to lunatics, and infants, 1285, 1286. joint owners upon trust, 1285, 1286. where owners are uncertain, 1286. trustee dead, 1286. lands subject to contingent right, 1286. where mortgagee has died out of possession, 1286. heir or devisee of such mortgagee, 1287. where uncertain which of several devisees was the survivor, 1287. where mortgagee has died intestate, 1287. in these cases, instead of a vesting order, the Court may appoint a person to convey, 1 287. exemplification, next in authenticity to those under the great seal, 1287. judgments and sentences, conclusive evidence, 1288. sentence of foreign Court, conclusive evidence, 1288. book of the Court of Chancery, sufficient evidence of decree, without decree being drawn up in form, 1288. how far bill in Chancery evidence, 1288. answers, 1288. office copies, bill, 1288, 1289. depositions, 1289. when decree may be given in evidence, 1289. ■bye-laws, 1289 — 1291. what bye-laws may be passed under Municipal acts, 1289, 1290. how, notice of, to be given, 1289, 1290. what, county council, may pass, 1290. township councils, may pass, 1290. trustees of police village, may pass, 1290. as to concession roads, and side lines, 1290, 1291. township councils may purchase lands, 1 291. potoers of sale, 1291 — 1293. important to observe under what term,s a power or trust is to arise, 1291. a power in a mortgage, to sell, is in the nature of a trust, 1292. when mortgagee may accept fair offer of purchase by private contract, 1 292. when mortgagor may not purchase, 1292. when notice is required to be given, 1292. ABSTRACTS AS TO TAX TITLES, I293 — 1296. close scrutiny required, in investigating, 1293. legislative interference, as to, 1293 — 1296. surveyor general's return, 1296 — 1298. provincial acts, as to 1296 — 1298. assessment, 1298 — I30I' treasurer's return of lands in arrear, 1301 — 1303. INDEX. • 2007 MASTER'S OFFICE— continued. ABSTRACTS AS TO TAX TITLBS — C0ntimp 1348. " 393. " 1349- „ 390, u 1349- J „ 394, „ 1350. ,. 395, „ 1350. • „ 396, „ 1350, 1351- " 397. " 1351- costs of purchaser, 1352. when purchaser discharged from his purchase, 1352 — 1360. PROCEEDINGS ON OBTAINING THE CONVEYANCE, I361— 1375. order, 379, as to, 1361. draft conveyance, by whom prepared, 1361. and at whose expense, 1361. deeds executed in England, need not be stamped, 1362. wife of mortgagor need not join, 1363. proceedings where purchaser delays in preparing the conveyance, I3j3- 2008 ■ INDEX. MASTER'S OFFICE— continued. PROCEEDINGS ON OBTAINING THE CONVEYANCE — continued. and where, vendor delays, 1363. objections to be made within eight days, 1364. rule as to settling conveyances, under the decree of the Court, 1365. mode by which Master signiiies his allowance of the draft deed, 1365. exceptions to Master's certificate, 1365. proceedings, where party refuses to execute, 1365. attachment obtained on motion, 1366. but the usual course in such a case is to proceed under the Chancery act, s. 63, of ch. 12, Con. Stat. U. C, 1366. proceedings, under this act, 1366, 1367. query ? whether, under any circumstances, the Court will compel a pur- chaser to accept a title, by vesting order, instead of a conveyance, 1 367. purchaser, entitled to title deeds, 1369. Order 388 as to payment of purchase money, 1 369. how purchaser compelled to complete his purchase, 1371 — 1375. proceedings where purchase money is inadequate to pay off plaintiff, 1375. Orders 454, 455, as to, 1375. ACCOUNTS, MODE OF TAKING IN MASTER'S OFFICE, 782—785. Order 227 requires accounting party to bring in his account in the form of a debtor and creditor account, 7^2. in partnership cases, usual for Master to proceed under order, 228, 782. when account filed. Master may appoint a time for opposite party to object to its form, 783. this practice better than appointing a time " to proceed," 783. proceedings, if account improperly framed, 783. ' when surcharge to be filed, 783. appointment to "query items," object of, 784. provisions of order 232 on this point, 784. underwriting of warrant under order 233, 784. penalty of improperly refusing to admit, under order 234, 784. costs payable under order 235, 784. costs may be set off, under order 236, 784. party conducting an account, not limited to one charge, 785. he may amend as often as the justice of the case requires, 785. ADMINISTRATION DECREE, OR ORDER, PROCEEDINGS UNDER, IN MASTER'S OFFICE, 882 — 984. administration order, now used, instead of a bill, 882. what this order usually directs, 882. mentioned in order 187, 883. copy to be filed in Master's office, 883. Master's first duty, to ascertain whether there are any persons interested in the estate, not already before the Court, 883. will, or probate to be produced before him, 883. where no will, evidence is to be adduced, showing who are interested either as heirs or next of kin, 883. these to be served with office copjidecree under order 60, 883. warrant to consider served with it, 883. order 60, 883. order 587, extends power of Master, 884. upon whom this wanant to be served, 884. where there are infants, 884. rule to be observed in making parties in the Master's office, 884. distinction between making them parties, and serving them with notice of the proceedings, 884. duty of Master on return of warrant to consider, 885. publication of advertisement under order 475, 885. form of directions to be entered in Master's Book, 885. order 475, as to advertisement for creditors, 886. order 476, as to creditor makingf an affidavit of his claim, 885. INDEX. 2009 MASTER'S OFFICE— continued. ADMINISTRATION DECREE, OR ORDER, PROCEEDINGS UNDER — continued. order 482, as to notice, 886. order 477, as to producing security, 886. order 478, as to costs, 886. order 479, as to examination of claims by executor, or administrator, 886. order 480, as to affidavit of claims, 886. order 481, as to adjourning the making of this affidavit, 887. , order 482, as to allowing of claims by Master, 887. order 483, as to notice to be given by executor or administrator, 887. order 484, as to sending in particulars of claim, 887. order 485, as to time when claim may be received, 887. order 486, as to payment of money to creditors out of Court, 887, 888. order 487, as to service of notices, 888. order 474, duty of Master under proceedings on the claims, 888. bias of the Court in favor of letting in creditors, 889. Court will not generally set apart fund for creditors who do not choose to prove their claims, 889. if after a decree for administration, a creditor files his bill, or brings an action for the payment of his debt, he will be restrained by injunction, 890. proof of mortgage debt, 891. righ't of executor or administrator, to retain his own debt, and how this is done, 891. executor permitted to advance moneys for the costs of the suit, 892. ADVERTISEMENT, PROCEEDINGS AFTER, 779 — 781. mode of proceeding before Master under order 224, 779. claim as creditor must be verified by affidavit, 779- but must be established by viva voce evidence, unless, by consent, affida- vits are used, 779. plaintiff in a creditor's suit must prove his debt, 779- witnesses may be examined for, or against a claim, 780. it is usual to dispense with strict proof in proving bonds, deeds, notes, and other securities, 780. person representing estate may set up any defence available at law, or in equity, 780. executor may set up statute of limitations, 780. defence of no. consideration may be set up in Master's office, 780. effect of statute of limitations, 780. effect of 3 & 4 Wm., 4, c. 27, s. 40, 781. when claim properly made out. Master marks it in his book " allo^ved," 781. effect of this, 781. when enquiry as to next of kin, directed, jSi. APPORTIONMENT OF DEFICIENT FUND, 1382, I383. fund, if small, to be verified by affidavit, 1383. in other cases apportioned by Master, 1383. practice as to, 1383. ASSIGNEES OF BANKRUPT, OR INSOLVENT MORTGAGOR, I056, I057. the official, or provisional, and creditor's assignees, under the bankruptcy or insolvency of the mortgagor, are the proper parties to suits in respect of his interest, 1056. on death of a provisional assignee, his successor may be joined by revivor, 1057- if the equity of redemption become vested in the Crown by forfeiture, the Attorney General shall be joined, 1057. a, mortgagor who has mortgaged lands in this Province, and who after- wards becomes bankrupt in England, is not a necessary party, 1057. ASSIGNEES OF MORTGAGOR, IO58 — 1061. where there is an express life estate, the remainderman must be joined, 1058. 2010 INDEX. MASTER'S 07'PIC'E— continued. ASSIGNEES OF MORTGAGOK — continued. and so must the tenant for life, 1058. case of trustees to preserve contingent remainders, 1059. case of a mortgage for a term, with a trust for sale of the fee, 1059. of trustees entitled beneficially under a settlement, io6o. creditors not necessary parties to a bill for foreclosure filed by trustees to- whom the mortgage had been executed for the benefit of creditors, 1060. infants sometimes made parties in Master's office, where they would have been proper parties by bill, 1060. case of mesne incumbrancers, 1060. of assignee of lease, 1060. of subsequent incumbrancers, 1 061. -;0f mortgage of tolls, 1061. ASs"gNEES, "pendente lite," of MORTGAGOK, AND MORTGAGEE, OF 1080 — 1084. rule, that he who purchases an interest in litigated property, pending the suit, acquires for the purposes of the suit no right distinct from that of his assignor, 1080. pendency of suit, sufficient notice, 1080. if therefore, pending a suit for redemption, the equity of redemption be assigned by the mortgagor, the assignee will be bound, 1080. and a fortiori, in a foreclosure suit, 1080. rule applies equally to assignments by the plaintiff and the defendant, ic8i. nor is it material, if there be an abatement by the death of the assignor, io8i. nJe stated, with a reservation, by Lord Redesdale, 1081, 1082. but where a legal interest passes by the assignment, the assignee's pre- sence becomes necessary, 1082. nor does the rule apply to a person, who, like the assignee in insolvency, is not bound by a decree in a suit carried on in his absence 1083. effect of registration oi lis pendens, 1083. if the assignee desire to bring himself forward he should file a supplemental biU, 1083. BANKER, CLAIM BY, 9O4. how this claim proved, 904. form of affidavit, 904. how interest allowed on such a claim, 905. BILL OF EXCHANGE. CLAIM ON, 904. how this claim supported, 904. form of affidavit, 904. if insisted on, testator's signature must be proved, 904. BOND DEBT, CLAIM ON, 903. how this claim supported, 903. form of affidavit, 903. consideration not to be proved, unless a case of suspicion is raised, 903. if strict proof required, execution of bond improved, 903. executor may, in the Master's office, impeach the validity of the bond grounds not in issue at the hearing, 903. upon interest, how computed, 903, 904. interest, generally, not to be computed beyond the amount of the penalty, 904. CLAIMS AND ACCOUNTS BEFORE THE MASTER, 768 — TJO. " State of facts " formerly required, 768. by present practice a " claim " or " account " is filed, 768. Master may now, under orders 219 and 220, take m^ny accounts, and make many enquiries not mentioned in the pleadings, 768. he may enquire into " wilful neglect and default " without a special direc tion in the decree, jSg, accounts to be brought in, in the form of a debtor and creditor account, by order 227, 769. INDEX. 2011 MAS'lER'S OFFICE— continueii. CLAIMS AND ACCOUNTS BEFORE THE MASTER — contimioi. items of account to be numbered, 770. importance of this "Record," 770. penalty of incorrectness, 770. " accounts," full meaning of this word in order 220, 770. how contempt in not bringing in accounts, to be cleared, 770. COMlilSSION, OR COMPENSATION, ALLOWED TO TRUSTEES, EXECUTORS, AND ADMINISTRATORS, 93I — 984. English rule as to compensation, 931. 22 Vic. ch. 16, sec. 16 ; revised stat. of U. C, pages 109, 931. Court of Chancery has concurrent jurisdiction with Surrogate Court, under this statute, 931, 932. leading case of Robinson v. Pat, 932. notes on this case from "White and Tudor," 932 — 982. these notes form an exhaustive treatise on the subject, and are therefore reproduced in full, 932. in our Court, the first discussion on our statute arose in McLennan v. Heward, 982. cases in our.Court, 982, 983, 984. Order 589,as to form of report in administration suits, 984. DECREES A»D ORDERS, PROCEEDINGS UNDER, 736. cause referred to a Master cannot be withdrawn without order of Court, 740. in what cases such an order will be made, 740. prosecution of decree in, devolves usually on plaintiff, 741. of interlocutory order, on party obtaining it, 741- order 211, for prevention of delay in taking out decree, or order, 741. Order 212, for prevention of delay in prosecuting decree, or order, 741. order 584, allowing Master to issue warrant to shew cause why refer- ence should not be proceeded with, 741 • order 588, allows Master to fix the costs under these orders, 741. order 586, allows Master to fix costs against absent party, 742. in administration suits, reference to be conducted by those having greatest interest, 742. in what cases, carriage of decree will be changed, 742. application to compel party to proceed with reference to be made to Master to whom cause referred, 742- under order 211, no order necessary to authorize defendant to take carriage of decree out of plaintiiFs hands, 742. DEVISEE AND HEIR OF MORTGAGOR, OF THE, IO61 — 1063. devisee of mortgagor, a necessary party in respect of so much of the equity of redemption as has been devised to him, 1061, 1062. and the heir, in respect of what he takes by descent, 1061, 1062. if the heir and devisee both claim, the devisee alone should be plaintiff, 1062. in a suit to redeem by persons entitled under a will to a charge upon the equity of redemption, the trustees of the will are proper parties, 1062. and so are legatees, 1063. EQUITABLE SECURITIES, 999 — IO08, what are, 999. equitable mortgage, how created, 1000. parol evidence, may be established by, 1000. or by the mere inference of an agreement, dra-WTi from the fact of a deposit of deeds, 1000. inference must not contradict the terms of a written instrument, looi. where registration not necessary, looi. equitable lien may also be established by parol evidence of arrangements, 1001, 1002. and even upon documents which remain in the keeping of the debtor, though in the legal custody of the creditor, 1002. 2012 INDEX. MASTER'S 0¥¥lC^r-continued. EQUITABLE SECVKniES—continuai. it may also be established against property of which the title deeds have not been actually deposited, where a written undertaking, or expression of intention to deposit them can be proved, 1002. but a parol agreement to deposit a deed will not be sufficient to create a security, 1003. a deposit of a material part only of the deeds will effect a good equitable mortgage, there being no fraud, and good reason for not depositing the remainder, 1003. what sum the deposit will cover, 1003. future advances may be covered by equitable mortgage, 1004. case, where original deposit invalid on account of usury, 1004. case of voluntary settlor, 1004. a legal security cannot be extended to subsequent advances made on a parol agreement for a further mortgage, 1004. a simple covenant or agreement to charge land will not create a charge on the debtor's real estate, where no particular estate is mentioned, or the agreement is only for a personal, with power to call for real, security, 1005. a promise to pay a debt out of the estate of a deceased person, if the personalty be exhausted, will change the realty, 1006. agreement cannot be set up as an equitable mortgage, if it has been laid aside unacted upon, 1006. a delivery of title deeds for the purpose of preparing a legal mortgage, will operate as an equitable security, 1006. cases on this point, 1007, 1008. KCIUITY OF REDEMPTION, OR SECURITY AND DEBT, OF THE PERSONS BENEFICIALLY INTERESTED IN, IO73 — 1080. trustees represent the persons beneficially interested under the trust, and in such cases it is not necessary to make such persons parties, J074. distinction between cases arising under wills, and those under settlements, 1075. cases under the general rule, 1075, 1076, 1077. case where some of the cestui que tfusient should be made parties, 1078. case of creditors, under a deed of assignment for the benefit of creditors, 1078, 1079. a small number of creditors may represent the rest, 1079. scheduled creditors, not parties to the deed of trust, need not be parties, 1079. persons beneficially interested under a will not necessary parties to a suit by an executor against his co-executor to realize a mortgage debt due from the latter to his testator, 1073. a trustee, being a solicitor, not bound to discover the names of his cestui que trustent^ 1080. EVIDENCE IN MASTER'S OFFICE, 762 — 767. an enquiry directed by the Court, is in the nature of a new issue, and what would be evidence in any other case, will be evidence before the Master, 762. what proceedings, may be used before him, 762, 763. Master should make a minute of admissions to be subscribed by the party admitting, 763. by order 175, a party may, in certain cases, use depositions taken in an- other suit, 763. strictly, no evidence can be taken except viva voce, 763, 764, 844. in what cases, affidavits may be used, 764, to what extent a witness may be examined before the Master, upon matters as to which he has been examined in the cause, 765. cases to which the rule does not apply, 766. one party may examine his opponent as a vritness, 766. how depositions to be taken, 766. INDEX. 2013 MASTER'S OFFICE— continued. EVIDENCE IN MASTER'S OFFICE — continued. how Master to deal with alterations desired to be made by witness, 766. each Master, may direct evidence to be taken before any other Master, 767. witnesses to be served with subfmna, 767. or with subpcena duces tecum, 767. rules governing Master in taking evidence same as those which govern the court at Examination Term, 767. Master's judgment on conflicting evidence will not be reversed on appeal, 767. EXECUTOR OR ADMINISTRATOR, RIGHT OF, TO RETAIN HIS DEBT, 892 — 902. executor or administrator has a right to retain for his own debt, in prefer- ence to all other creditors of equal degree, 892. reason for this rule, 892. but he cannot retain as against a debt of a higher degree, 892. this privilege exists, notwithstanding a decree for an account has been made in a suit by the other creditors, 893. when right not lost, 893. no right to retain where the assets are merely equitable, 893. he may retain not only for debts which he claims beneficially, but also for those to which he is entitled as trustee, 893. conversely, he may retain for debts due to another in trust for himself, 894. this right, under an obligation made to his trustee, recognized by courts of common law, 894. distinction to be observed, 895. where corpus of trust fund, is in trust, to pay only the interest, there is no right to retain the principal at law, 895. at law, cannot retain for a demand, of which no account can be taken by a jury, 896. where administration durante minoritate is granted, the administrator may retain as well for his own debt, as for one due to the infant, 897. case of lunatic creditor, 897. if administration granted to creditor, as such, and be afterwards repealed at the suit of next of kin, such creditor may retain as against rightful administrator, 897. if right -waived by arrangement with other creditors. Master cannot disallow the claim without a special direction, 897. executor of executor entitled to retain debts due either to himself, or to the deceased executor, 898. case of administrator cum testamento annexo, 898. case of partners, 898. case of married woman, executrix, and her husband, 898. if husband be executor, he may retain for a debt due the wife dum sola, 898 executor dc son tort, cannot retain, 898. one exception to this rule, 898. case where the same person is the personal representative of both debtor and creditor, 899. case of joint and several obligors, 899. .case where two are jointly bound, one as principal, the other as surefy, 899. damages, cannot be retained. co-executors, one cannot retain to prejudice of the other, 900. j:ase of two executors, balance found to be due by them to estate, one, » creditor, may retain out of this balance, 900. executor may retain, though his debt be more than six years old, 900. has executor a right to retain out of proceeds of real estate ? 900. case where executor of creditor is also administrator of such creditor's debtor, 901. case of partnership, 901. <;ase, when executors pay off debts due by testator, 902. 2014 INDEX. MASTER'S OYVlCE—mitinued. EXECUTORS DISCHARGE, — PROCEEDING ON, 925 — 931. meaning of the tenn "discharge," 925. mode of proceeding on, 925. liability of executor for " wilful neglect, or default. " Master may take an account of " wilful neglect or default " without any special direction in the decree, 925, 926. ( sec. 2, of order 220, not confined to cases of mortgagor and mortgagee, 926. case where administrator held liable for allowing simple contract creditor to be paid before a creditor by speciality, 926. case where executors held liable for using estate in maintenance and edu- cation of children to detriment of creditors, 926. executor not justified in keeping estate open and unadministered in order to obtain interest on a claim he has against the estate, 927. executor will be charged with rents and profits where he delays selling lands, which by the will are saleable for payment of debts, 927. case where executor not charged with interest on balances in his hands, and was also allowed his costs, 927. duty of administrator where he has moneys without knowing to whom to pay them over, 928. rests, when executor charged with, 928. executor allowed interest on moneys advanced by him for benefit of estate, 928. when executor charged with eight per cent, interest, 928. executor allowed to pay retaining fee to counsel, 928, 929. executor not charged with interest on sums lost through wilful neglect or default, 920. executors not permitted to embark any new capital in business of testator, 929. case of one of two executors discharging a mortgage, given by himself to his testator, 929. case where executor suffered lands of testator to be sold for debt though one of them was indebted to the estate in a larger amount, 929. duty of Master, after having received all the evidence on the discharge, and surcharge, 929. how to ascertain state of account, where JMaster has determined to charge interest, or take it with rests, 929, 930. FORECLOSURE UNDER MORTGAGE DECREE, IO28 — 1035. when a bill for foreclosure may be filed, 1028. upon default in payment by a mortgagor, of any instalment of interest, the mortgagee has a right to call in the whole amount secured by the mortgage, 1028. Orders 461, 462 and 463 regulate the practice on this point, 1029. interest in such cases to be computed up to the day named in the mortgage, and not to the time of making the application, 1029. mortgagee not bound to accept payment of the whole principal and interest, where only certain interest is due, and a bill to foreclose which has been filed, 1029. a tender by a mortgagor stops interest, 1029. proper order to make where a decree of foreclosure obtained on a mortgage payable by instalments has been stayed upon payment of the amount actually due, and a subsequent default occurs, 1029. when three months further time to redeem, granted to subsequent incum- brancer, 1030. where there are several judgment creditors, the decree should give them suc- cessive rights of redemption, though very short periods must be fixed for the purpose, 1030. semble, that after payment of what is payable upon a mortgage payable by instalments, it is irregular to take any further proceedings until another instalment falls due, 1030. mortgagee not bound to give notice under the mortgage of his intention to file a bill, 1030. INDEX. 201 5 MASTER'S OV¥lCE.~conti,iued. FORECLOSURE UNDER MORTGAGE DECREE — Continued. when taking notes, will suspend the remedy on the mortgage, 1030. the bill should be expressly framed for the relief sought at the hearing, 1030, 1031. a person interested in part only of a sum due on a mortgage, cannot sue for foreclosure of a corresponding part of the estate, 1031. when widow let into her dower, 1031. a mortgagor who holds several mortgages on the same land, one of which is not due, cannot file a bill to foreclose that mortgage with the others, 103 1. case where mortgagee takes bills in discharge of the mortgage debt, which bills are dishonored, 1031. case where trastees mortgage, 1032. as a general rule, mortgagee has the right of pursuing at the same time all his legal and equitable remedies, 1032. derivative mortgagee may even bring at the same time two different suits for redemption or foreclosure, but he will be made to pay costs for the vexation, 1032. m cases of fraud, or special contract, or other particular circumstances, the Court will restrain the exercise of this unlimited right, 1032, 1033. mortgagee may lose his remedy by laches, 1033. mortgagor has a right to be protected against a double account of the amount due on the same mortgages, 1033. when mortgagee will be restrained from proceeding at law on his collateral security, 1033. when he will not be restrained from selling, 1034. when the Court will not interfere with the mortgagee's action on his covenant, 1034- when trustee will not be restrained, 1034. what remedies a mortgagee has, who makes advances to trustees, 1034. mortgagee's right to enforce his securities not confined to the institution of a suit which shall put an end to the mortgage, 1034. mortgagee may also proceed generally against the assets of the deceased mortgagor, 1035. how to sue in such a case, 1035. mor^agee may foreclose without taking possession, 1035. FORECLOSURES OR SALES, PROCEEDINGS TO OBTAIN A DECREE IN CASES OF, 1084 — I09I. four different modes of obtaining a decree in these cases, 1084. order 38, as to prcecipe decrees by Deputy Registrar, 1084. practice under this order, 1085. practice on obtaining decrees in Registrar's office, Toronto, where no answer filed, but where there are incumbrancers, 1085 • orders 436 and 437 on this subject, 1085. practice where no answer has been filed, and there are no incumbrancers, io86. orders 432 and 433 as to this practice, 1086, 1087. case where the bill contains matter beyond the usual statements necessary to obtain a common decree, 1087. case where an intei-im injunction had been granted, 1087. order 435 on this practice, 1087, 1088. where disputing note filed, 1088. result of these orders, 1088. when plaintiff requires a special enquiry, the case will be taken out of these orders, 1088, 1089. penalty for taking out decree, improperly referring the case to a Master, 1089. practice in obtaining a decree under order 38, 1089. practice in obtaining a decree against an infant heir, or infant devisee of the mortgagor, 1089, 1090. order 434 on this point, 1089, logo. 2016 INDEI. MASTER'S OFFICE— ««/jK«f^. FORECLOSURES OR SALES, PROCEEDINGS TO OBTAIN A DECREE — continued. regard must be had to order, 438 before taking out the decree, 1090. order to make persons interested in the equity of redemption will not be gtantti ex parte, 1091. though the practice seems unsettled, 1091. FORECLOSORE, SALE, OR REDEMPTION, PROCEEDINGS ON A DECREE KOR, I09I — 1094. first step on decree is to bring it into Master's office, 109 1. order 441, on this point, 1091, 1092. the first inquiry is as to incumbrancers, 1092. order 442, on this point, 1092. certificates of Registrar and Sheriff to be brought in, 1092. order 443 as to this, 1092. these certificates need not come further than the date of filing the bill, lo 92. Master notices those incumbrancers only, prior to the filing of the bill, 1092. what are incumbrances under these orders, 1093. next step is to bring the certificates into the Master's office, 1093. order 444, points out duty of Master on these certificates, 1093. cases, assisting the Master in determining upon the description of creditors to be made parties, 1093, 1094. duty of Master where there is a dispute as to the owner ship of an incumbrance 1094. FURTHER DIRECTIONS, 872 — 882. meaning of the tenn, 872. cases where Court will not permit a setting down on further directions, 872. it is only where further directions have been reserved, that it is required to set down on further directions, 873. further directions are given after confirmation of the report, 873, at the hearing on further directions, the Court will make such further order as appears to be consistent with the justice of the case, 873. unless, being dissatisfied with the manner in which the Master has discharged his duties, it orders a review, 873. what the Court will do at the hearing on further directions, 874. will not re-hear on this motion, 875. Court will direct the computation of interest, on further directions, and will even charge an accounting party with interest, though there was no reser- vation of the question of interest by the original decree, 876. instances of this practice, 876, 877, 878. Court will not, however, make any order on further directions, varying or impugning the original decree, 878. and it will refuse to entertain an objection to the original decree, which might have been made at the original hearing, 879. some of these propositions qualified by decisions in our own Court, 879- FURTHER DIRECTIONS, SETTING DOWN ON, 880 — 882. cause may be set down to be heard on appeal from Master's report, and on further directions at same time, 880. but the appeal must first be disposed of, 880. notice of hearing to be served, and cause set down for one of the days mentioned in order 416. this is a seven days notice, and the cause must be entered seven days before the hearing, 880. practice regulated by orders 418, 419, and 420, 880. course of proceeding at hearing on further directions, 881. a creditor, whose claim has been allowed by the Master, has a right to appear on this hearing, 881. plaintiff will not be permitted to set down a cause for hearing on further directions at a distant day, to the delay of the defendants, 881. as a general rale, the evidence in the Master's office is not looked at on further directions, 881. order made on further directions, how worked, 882. INDEX. 2017 MASTER'S OVeiCE—canHnued. HEIRS AT LAW, NEXT OF KIN, CREDITORS, ETC., ENQUIRIES AS TO, 771, 772. Master bound, in some cases, to give his opinion as well upon the law as the facts of a case, 772. Master to advertise for creditors, heirs, next of kin, or other unascer- tained persons, and to appoint a time vi-ithin which they are to come in and prove their claims, under Order 223, 772. HEIRS, NEXT OF KIN, OR CREDITORS, PROCEEDINGS TO ADVERTISE FOR, 772—779; Master to direct advertisement to be published in some new.spaper, published near the place where the parties are supposed to be, or where the ancestor lived, 773. a claim may be put in after the time limited, if before report signed, 773. Court will let in creditors, or next of kin, at any time before fund distributed, 773. Master notices no creditors in report, but those who prove, 774. the rule of the Court as to creditors who do not prove, but who have an equal, or paramount title to those amongst whom the distribution has taken place, 775. but the Court will not assist such persons, if they had notice of the proceedings, 777. a party seeking to compel those who had benefitted by the distribution to refund, must proceed against all, 777. a creditor, or other claimant desirous of coming in to prove his debt, or claim after report, must apply to the Court, 778. and if residing out of jurisdiction, must give security for costs, 778. creditor may be cross-examined on his affidavit, 778. Master is to allow to creditor the costs of proving and attending on his own claim only, 778. Order 225, permits Master to allow these costs in gross, 778. person claiming as heir, or next of kin, files his claim and affidavit supporting it, Tji. but he must, besides, establish his claim by viva voce evidence, unless, by consent, affidavits are used instead, 778. mode of proving pedigree, 778. succession to real property is regulated by the laws of the country where the land lies, 778. mode of proving claim as one of next of kin, 779. INFANTS, 1384— 1409. Appointment and removal of Guardians, 1385 — 1393. jurisdiction of Court as to, 1384- Order, 197 ; as to, 1384. not necessary to file a bill for, 1384. proceeding is by petition, 1384. Court vrill not refer it to a Master to appoint a guardian, 1385. but only to approve of one, to be afterwards appointed by the Court, 1385- infant becomes a ward of Court, the instant the suit is commenced, 1385; Court will sometimes interfere summarily, 1 385 . right of Court to give custody of child, 1386. any person may commence proceedings on behalf of an infant, 1386. to give jurisdiction to Court, infant need not be possessed of property, 1386. when application may be made, 1387. what usually directed, in a suit for maintenance, 1387, 1388. where no suit pending, application should be by petition, how petition intituled, 1388. appointment of guardian of the person only, 1388. Court has jurisdiction over children of British subjects, though bom and domiciled out of England, 1388. 2018 INDEX. MASTER'S OFYlCE^—conHnued. INFANTS — continued. Stat. 12, Car. II., Ch. 24, as to, 1389. testamentary guardian subject to control of the Court, 1390. how far Court will pay respect to the wishes and directions of testator, with regard to his children, 1390. evidence required on an application for the appointment of a guardian, 1390, 1391- where mother, or other female is appointed guardian, and marries, a new appointment is necessary, 1391. and so, if one of several guardians dies, 1391. guardian of estate and person will be appointed on petition, 1391, 1392. evidence required in support of, 1392. guardian of estate must, ordinarily, give security, 1392. application to remove guardian, made by motion, 1392. Court will not, as a general rule, allow wards to go beyond its jurisdiction, 1393- but it will do so under special circumstances, 1393. Maintstmnce and advancement, 1393 — 1400. when application may be made for maintenance out of fund in Court, 1393- rule as to allowing this, 1394. practice as to, 1394. % as a general rule, maintenance will not be ordered during lifetime of father, 1394. but where father is not able to support his children, an allowance will be made, 1394. case, where father has contracted that certain property should be applied for maintenance of his children, 1395. in general. Court will not disturb the capital, 1395. but it will do so, when absolutely necessary, 1395, .1396, 1397. no rule requiring mother to support her children, 1398. practice on a petition for maintenance, 1398. allowance may be increased on subsequent motion, 1398. guardian allowed costs as between solicitor and client, 1398. practice where infant and father reside abroad, 1399. Court may appoint guardian to infant of weak or unsound mind, 1399. application to be by petition, 1399. guardians, not accountable for expenditure, if they duly maintain tlie person entrasted to their care, 1399. Court will buy a commission in the army, or bind infant as an ap|irentice, or otherwise apply fund in Court, for his advancement, 1400. practice where infant is articled as an apprentice, 1400. infants' estates, sale of, under 12 Vic. c. 72, 1802 petition, to be by, 1802. how intituled, 1802. by whom presented, 1802. what it should state, 1802. Court looks at ultimate benefit only, 1803. all applications in the matter must come on before the same judge, 180^. Orders 528, 530, 531, 532 as to, 1803. Orders 533, 534, 535 as to, 1804. practice under these Orders, 1804, 1805. INTEREST, computation OF, 796. how interest calculated on a bond, 796, 797. interest on judgment, 798. interest on arrears of annuity, 798, 799. interest on simple contract debts, 799. interest on account stated, 800. charge of debts on real estate, does not entitle simple contract creditors to interest 800. INDEX. 2019 MASTER'S OY'FlC^—conHnued. INTEREST,, COMPUTATION OF — continued. interest to be computed at six per cent., 8oi. up to what time Master should compute interest, Sot. interest not to be computed on interest reported to be due, 8oi. rests, computing interest with, object of, and mode of computation, 8oi. proper mode of computing interest, 802, 803. form of account, shewing the correct rule in the computation of interest, 804. INTEREST, WHO ARE BOUND TO PAY, AND ENTITLED TO RECEIVE, 804—813. must be an agreement to pay interest, express, or implied, where the contract is one merely for lending money, 804. rule different, as to bonds, and mortgage debts, 805. instances where interest payable, 805, 806. when mortgagee allowed interest on moneys expended for the benefit o( the estate, 807. mortgagee not entitled to interest beyond the day fixed for payment, if he omit to attend at the time and place fixed by the Court for pay- ment, 808. executors not entitled to interest after tender, though made before probate, 808. mortgagee not allowed interest, upon a debt, which, but for his wrongful act, would have been satisfied, 808. prior incumbrancer entitled to interest as against puisne incumbrances, though guilty of laches, 808. tenant in tail not obliged to keep down the interest on the charge, 809. tenant for life is bound, 810. reversioner bound to see that tenant for life keeps down the interest, 810. duties of tenant for life, and mortgagee, 811, 812. when representatives of wife not entitled to interest on sums which husband's estate had become liable to recoup to them, 812, 813. duty of receiver as to keeping down interest, 81 J. INTEREST, ARREARS OF, ON ANNUITIES, BOND, AND JUDGMENT DEBTS, PAYMENT OF, 813 — 82 1, as a general rule, interest not allowed upon arrears of an annuity, 813. cases in which interest will be allowed, 814, 815. discretion of Court in this matter not affected by Con. Stat. U.C, 22 Vic. c. 43, s. 3, 816. bond debts generally carry no interest beyond the penalty, 816. exceptions to this rule, 8x6. case where a mortgage accompanies the bond, 816. case, where bond tacked to another security, 817. INTEREST IN ARREAR,— CONVERSION OF, INTO PRINCIPAL, 817— 82I. right of assignee o£ mortgage to charge interest on the arrears of interest 'paid by him to the mortgagee on taking the assignment, 817, 818. rule different when assignment taken without concurrence of mortgagor, 818. how far acquiescence of mortgagor will bind him, 818. case oi puisne incumbrancer, 818. enquiry v/ill be directed as to what is due on the mortgage, and what has been paid by the assignee, 818. conversion of interest into principal by original stipulation in the mort- gage now permitted, though formerly not allowed, 819, 820. rule as to mercantile transactions, and dealings between bankers and their customers, 820. quarterly rests permitted, 820. INTEREST, SUBSEQUENT, COMPUTATION OF, 82I— 823. when subsequent interest computed on the aggregate amount of principle', interest and costs found due'by former report, 821. present practice in suits for administration where the mortgaged estate has been sold, 822. 2020 INDEX. MASTER'S O'emCE— continued. INTEREST, SUBSEQUENT, COMPUTATION OF — continued. where the Court enlarges the time for payment, subsequent interest is to be computed on the aggregate of the principal, interest and costs, 822. where interest runs on the whole sum found due by the report, it runs only from the confirmation of the report, and up to that time on the principal only, 823. where the question of interest is not reserved by the decree, it is properly a matter of re-hearing, 823. INTEREST, ARREARS OF, RIGHT TO SET OFF, 823 — 824. where amount due a mortgagor at his death for arrears of interest on a legacy left him by the mortgagee, may be set off, against the amount due from him on account of the mortgage, 823. set off, in case of incumbrancers, against assignees of bankrupt, 824. INTEREST, RIGHT TO, UNDER STATUTE OF LIMITATIONS, 824 — 828. provisions of Imp. Stat. 3 and 4, Wm. 4, C. 27, 824. this Act similar to ours, 824. six years arrears of interest only can be recovered on a mortgage annuity or charge, without any covenant for payment, but twenty years arrearages may be recovered under a covenant for payment of interest, 825, 826. in a redemption suit, more than six years interest can be recovered — the the mortgagor is bound to pay up all interest, 826, 827. the Court will not, to avoid circuity of action, enforce an obligation indirectly where the consequence would be an evasion of the Statute of Limitations, 827. foreclosure suit is in substance a suit for the recovery of the mortgage money, 827. cases in which the operation of the statute will be hindered by the Master's report, 828. effect of stipulation in mortgage that interest should be increased from 8 to 1 2 per cent, if principal were not paid on a certain day, 828. such a stipulation, not a penalty, 828. interest at two per cent, per month allowed after expiration of time fixed for payment of principal, 828. INVESTMENTS IN THE PURCHASE, OR ON MORTGAGE OF AN ESTATE, 1376—1379- what the Court requires in such cases, 1376, 1377. what order will be made, 1377. order usually made on petition, 1377. but sometimes made on motion, 1377. proceedings after approval of investment, 1377. JUDGMENT CREDITOR, CLAIM OF, 902. hew this claim supported, 902. form of affidavit, 902. judgment need not be revived for the purpose of the debt being proved, 902. LEGACIES AND ANNUITIES, ENQUIRIES AS TO; 782. when Master need not advertise, 782. legatees, not necessary parties defendants, in an administration suit, 782 . MANAGEMENT OF PROPERTY, I380, I381, I4OO — 1403. proceedings under decree for, 1380. sanction of Court obtained on motion, 1380. practice, where property is leased under the sanction of Court, or Master, 1381. order, how obtained, 1381. settling draft lease, 1381. the Court exercises a vigilant care over guardians of the estate, 1400. difficulty in determining with precision the extent of the authority which is possessed by a guardian appointed by the Court, 1401. power of testamentary guardian, more clearly defined, 1401, 1402. guardians not, ordinarily, permitted to convert personal into real estate, 1402, 1403. INDEX. 2G21 MASTER'S 0¥FlCY.—contimced. MANAGEMENT OF PROPERTY — Continued. where infant resides in a foreign country, the Court will invest his money in the securities of that country, 1403. rule is that moneys belonging to infants are not ordered to be paid to their guardian, but are secured for their benefit, under the authority of the Court, 1403. ' but the rule may not apply when the amount is small, and is required for maintenance or education, 1403. Court now invests in Dominion stock, and not in mortgages, 1403. MARRIAGE AND MARRIAGE SETTLEMENTS, I404 — I4O9. where a ward is desirous of marrying, application for leave, must be made to the Court, 1404. marriage must be shewn to be suitable, 1404. and the settlement proposed proper, 1404. when Court will interfere by injunction, 1404. application is by petition, 1404. evidence required, 1404. a person marjying a ward will be guilty of contempt, 1404. and, with all others aiding, may be committed to prison, 1404. even though ignorant of the infant being a ward, 1404. in such cases application may be made, by petition, for an enquiry as to the validity of the marriage, and the approval of a proper settlement, 1404, 1405. evidence required, 1405. if marriage found to be invalid, a valid one may be ordered, 1405. proceedings in such cases, 1405. on what terms husband will be discharged from prison, for his contempt, 1405. who should apply, and how, 1405. what petition should state, 1405, 1406. allegations must be supported by affidavit, 1406. proceedings upon the petition, 1406. fund in Court, when transferred, 1406. power of infants marrying with consent of Court, to convey real estate, 1406, 1407. how sanction of Court obtained, 1407. how petition entituled, 1408. its prayer, 1408. evidence required, 1408. when infant is not ward of Court, practice, 1408. how proposals for settlement, settled, 1408, 1409. MORTGAGE SUITS, PROCEEDINGS IN, 9S5— 999. redemption, what it is, 985. foreclosure, what it is, 985. when a sale will be decreed, 9S5. equity of redemption, how described, and its characteristics, 9S6. right of redemption may be inferred, 986. when it arises, 986. statutory right to order a sale, conferred on our Court 23 Vic. ch. 12, sec. 10, 985. simplest form of redeemable contract, 986. Welsh mortgage, 987. Bristol bargain, 987. absence of covenant for payment oF debt, does not aff.;ct the mortgage character of the transaction, 98S. but it m.ay be explanatory of the intention of the parties, 98S. an instrument purporting to be an absolute conveyance, miy be controlled in its Cifect by another, containing an express stip.ilation forrelemption, 989. 104 2022 INDEX. MASTER'S OY¥lCK— continued. MORTGAGE SUITS, PROCEEDINGS IN — continued. disproportion of value, not of itself a reason for construing an instrument as a mortgage, 989. mistake in drawing instruments may be shewn, 989, 990. but the Court will not lightly infer an intention to make a mortgage, where none is expressed, 990. mortgage, or no mortgage, cases of, 990, 991, 992, 993, 994, 995, 996. when parol evidence allowed to shew the intention of the parties, 991. Court will not disturb the rules of evidence by varying a deed only on parol proof that the intention was different from that which appears by the deed, 991. there must be mistake, or fraud, or some like equity dehors the deed, 992. cases of conditional sale, 994, 995, 996, 997. another kind of redeemable interest, where a person grants an annuity, or rent charge, with a clause of repurchase, 997. the effect, somewhat of the nature of a Welsh mortgage, 993, these are treated by the Court, as redeemable annuities, 998. circumstances indicating that a loan was intended, 998. in determining whether an instrument is intended to operate as a mortgage, or as an absolute or conditional sale, the circumstances attending the transaction will be looked at, 998. parol evidence, what may be shewn by, 999. MORTGAGE DEBT — RIGHT TO, IO36 — IO37. in all mortgages the money must go to the executor, or administrator, and not to the heir of the mortgagee, 1036. though the rule was formerly different, 1036. the executor of a mortgage has not, under Con. .St^t. U. C. ch, 87, s. 5, any power to sell and convey the legal estate held by his testator to a person purchasing the mortgage, 1037. to remedy the inconveniences o( this rule, the Stat, of Ontario, 32 Vic. ch. 10, was passed, enabling executors or administrators of mortgagees to release the land, to assign the security, and to convey the legal estate in the mortgaged premise^, 1037. MORTGAGOR, UI' THE, IO52— IO56. he must be a party to every suit, in which the question of redemption arises between mortgagees, 1052. where the presence of the owner of the equity of redemption is necessary, 1052. prior mortgagee must be redeemed entirely, or not at all, 1052. rule the same, where the mortgagee holds securities upon distinct' estates, 1052. Order 427, as to surety for the payment of a mortgage debt, 1053. case of mortgagee and mortgagor selling part of the property without the concurrence of a person to whom the mortgagor had sold the remainder, 1053- Order 439 as to bill filed by subsequent incumbrancer against prior mort- gagee, 1054. Older 440, as to prayer by plaintiff for a sale, or foreclosure, subject to a prior mortgage, 1054. mortgagor must be a party to the suit, in which the validity of the mort- gage is contested, 1054. where married woman must be a party, 1054. wife, not a projier party, where she has joined in the mortgage to bai dower only, 1054. case of tenant lor life, 1054, case where mortgagor, or owner of equity of redemption becomes bank- rupt or insolvent, 1055. in such a case, the bankrupt is not a necessary party, 1055. restiiis que trust, not necessary parties, 1055. case where objection of want of parties not taken by the answer, 1056. INDEX. 2023> MASTER'S OFFICE— confimied. MORTGAGOR, OF THE — continued. an insolvent mortgagor may be a co-plaintiff, 105$. bankrupt or insolvent may be properly joined, in some cases, 1056. MOiTGAGEF, PERSONS CLAIMING INTEKEST IN THE' SECURITY AND DEBT OF THE, 1066— 1069. no bill can be filed against a mortgagee, unless there be an offer to re- deem him, 1066. if the mortgagor's title be impeached by the bill, the mortgagee ought to be joined, 1067. if morti;agee admits his interest, he may, in same cases be joined, without an offer to redeem, 1067. where he must be joined with the assignee of the mortgage, 1067. case of derivative mortgage, 1068. where there are several owners of the mortgage money, all must be jAined, 1068. the second, or other /; 1780. settled by Master, 1780, 1781, 1782. Master cannot give permission to receiver to bring actions, unless the power be given by Order of Court,' 1786. receiver's accounts^ 1788 — 1794* receiver must pass his accounts on the warrant of the Master, 1788. what the accounts should shew, 1788. practice on, 1789. when charged with interest, 1789, I79I- party may apply for order on 1 eceiver to pay in balances, 1 790. order thereon, 1790. Master may disallow salary, when, I79I- may be required to attend at Chambers, 1792. REDEMPTION, IOI9 — IO28. what a person seeking redemption must shew, 1019. cases where Court refused to allow redemption, 1020. where a trial at law may be had to settle the right, 1021. the Court will act on 3. prima facie title shewn by plaintiff, I02I. where the right to the equity of redemption is in dispute, the mortgagee may file a bill, in the nature of a bill of interpleader, praying that the defendants may settle the right between themselves, so that the plaintiff may not put his money to a wrong hand, 1022. how account to be taken where an assignment of a mortgage has been taken without communication with the mortgagor, 1022. direction of Court, where a mortgagee had filed a bill to foreclose against two rival claimants of the equity of redemption, 1022. adverse claimants of the equity of redemption cannot generally sue as co-plaintiffs, 1023. where they may so sue, 1023. INDEX. 2029 MASTER'S OFFICE— ««ft«afrf. REDEMPTION — continued. prior mortgagee can or\ly be brought before the Court for the purpose of redemptiort, 1024. the rule is that a bill can be filed against a mortgagee onlyfor the purpose of redeeming his mortgage, 1024. but this rule does not exclude the right of obtaining, in the same suit, against other parties, relief consequent on such redemption, 1024. the bill must, however, relate to the very estate which is comprised in the security, 1025. the rule that a mortgagee of several estates may refuse to be redeemed in respect of one unless redeemed in both, does not apply where a sale is asked by a prior incumbrancer, 1-026. if the bill be against the grantee of an annuity in possession of the estate, for an account of rents and profits, the plaintiff must offer to redeem on the terms of the annuity deed, 1027. the offer to redeem should correspond with the decree to which the party is entitled, 1027. as a general rule, an offer gratuitously made by the bill, or answer, cannot be recalled, ^027. where a mortgagee is made party to a bill, the prayer for relief amounts to a prayer for redemption, 1028. REDEMPTION, PROCEEDINGS IN CASE OF, 1375- Orders 466, as to, 1375, 1376. directions of Master in proceeding upon a decree for redemption, 1376. how the accounts are taken, 1376. REPORT, master's, 847 — 85$. what is a report, 847. no distinction in terms between a " report " and a " certificate," 847. though there is a practical distinction, 847. what this difference is, 847, 848. Master's reports are either f;eneral or separate^ 848. in what cases these are made, 848, 849. rule to be observed in preparing, 849. great care necessary, to dispose of all the matters referred, 849. but Master must not go 'beyond the reference, 850. generally speaking, it is the duty of the Master to meet all the difficulties that may arise in the discharge of bis office, 850. cases where the rule is applied, 850, 851. " special circumstances " when Master shall report, 851. not to set forth the evidence with his opinion on it, 852. accounts, how referred to in report, 852. effect of Order 249 on frame of report, 852. report, prima fade evidence of what it contains, unless appealed from, 852. when Court will refuse to carry out Master's finding, 853. order 254, allows any party affected by report, to file report, 853. order 251, allows Master to give report to any party, in case party prose- cuting the reference declines to take it, 853. Master may appoint any time to sign report, 853. special rules to be observed by Master in framing report, under Orders 250, 255, 256, and 257, as to making money payable at a particular time and place, 853, 854. and under Orders 310, 311, and 312, as to insertion of costs in report, 854 and under Order 317, as to administration suits where the costs amount to 25 per cent, of the value of the property involved, 854. Master to certify proceedings in his office, under Order 239, 855. parties to raise before Master, all points, which may afterwards be raised upon appeal under Order 248, 855. REPORTS, separate. Master may make, without'special direction, S55. REPORT, CORRECTING ERRORS IN, 855 — 860. 2030 INDEX. MASTER'S OFFICE— coniimied. REPORTS, CORRECTING ERRORS IN — continued. Master not at liberty in subsequent report, to correct an error in a previous one, 855. when clerical error in report, may be corrected on an ex parte application, 855, 856. ca«es w here the Court will correct a report without referring it back to the Master, 856, 857. report not to be dated until the costs have been revised and returned to Master, 857. no costs allowed for attending the Master to settle or sign report after the bill has been revised, 857. revision of costs, practice as to, under Orders 311, 312, 313, 857. REPORT, FILING THE, 858 — 860. report must be filed in Toronto — not in an outer county, 858. becomes absolute fourteen days after filing under Older 252, unless appealed from, 858. in mortgage cases must be filed before the day appointed for payment, 8^8. vacation, not reckoned in computation of time appointed for report becom- ing absolute, 858. vacation In Order 408, it is presumed, intludes both the "Long"' and " Christmas " vacation, 858. cases where report does not require confirmation, 859. rule, defining what class of reports, does not require to be confii-med, 859- ■ certificates of Master do not, 859, 860. REPORT, APPEAL FROM, 86o — 868. Flnglish practice of filing exceptions to report, 860. Order 253 establishes the practice of appealing instead, 861. appeal lies at any time within the fourteen days allowed for confirmation, 861. the expressions " except to report," and "exceptions," mean "appealing from the report," and " objections by appeal," 861. all parties lo the recoixl, who are interested may appeal, 861. creditors who have established their claims are permitted to appeal, though not parties to the suit, 861. and so also may persons, claiming as next of kin, whose claims have been disallowed by the Master, 861. and so may a purchaser under a decree for sale in the Master's office, 861. when appeal set down, it is argued before the Court, 862. no argument permitted on evidence not before the Master, 862. defendant's answer cannot be read on the appeal, if it were not read before the Master, 862. if Master improperly rejects evidence tendered to him, it should form a specific subject of appeal, 862. not competent to the Court, upon appeal, to make an order not consistent with the original decree, 863. if, upon argument, the appeal is overraled, the overruling has the efifect of confirming the report absolutely ;'and if cause has been set down to be heard on further directions, the Court will at once hear it on further directions, 863. if any ground of appeal upheld, cause will be sent back to Master, 863. rule as to costs, where there are different solicitoi"S, 863. report may be sent back to Master, before Court decides on the appeal, 863. practice as to this, 864. appeal is to the Court, — not to Chambers, 864, 865. appeal not allowed after confirmation of report, without leave first obtained on special application, 864. parties who have no further interest in report, cannot appeal, 864. motion for leave to appeal must be on notice, 865. this motion may be made before the Referee, 865. INDEX. 2031 MASTER'S OFFICE— continueil. REPORT, APPEAL FROM — continued. appeal from Master's certificate as to costs should be to the Court, not to a Judge in Chambers, 865. appeal will not be entertained where the amount involved is very trifling, and no principle involved, 865. party applying for leave to appeal, besides accounting for the delay, must make out 21. prima facie case for appeal, 865. cases where leave to appeal, given and refused, 866. Master in this Province has been given a greater discretion as to the con- duct of references, than he possessed in England, 867. Order 320, provides for the costs of appeal, 867. cases as to the costs of appeal, 867. appeal from Master's certificate of taxation should be by motion, — not by petition, 867. appeal from Master's decision as to the admissibility of evidence may be made before he makes his report, 867. appeals from Master's rulings, as well as from his reports, should be to the Court, 868. cases, where report sent back to Master for irregularity in his proceed- ings, 868. REPORT, APPEAL FROM, PROCEEDINGS TO BE TAKEN ON, 869. notice of appeal, stating the objections to the report, to be served, 869. not to be served upon parties who have merely been served with office copy decree, and have not been made parties, 869. motion set down for argument under Order 416, S69. this is a seven days' notice under Order 418, 869. adjourned appeal cannot be heard in June, under Order 420, 869. REPORT, REVIEW OF, 869 — 87I. Court will, in many cases, direct the Master to review his report, without appeal, 869. or, if appealed, will direct it to be reviewed upon grounds independent of those taken on the appeal, 869. this may be done upon the hearing on further directions, 869. instances, 869, 870. a petition to review will sometimes be entertained, 870. but the Court is very cautious in ordering a review, 870. will do so, only in cases of fraud, surprise, or mistake, and then only on a strong case being made, 870. when a review ordered, the Master may ta^ce further evidence, 870, 871. Court will, at almost any stage, make a special order for correction of slips in a report, 871. motion to correct a clerical error in report, should be on notice, though it was formerly held that it might be done on an ex parte application, 871. REPORT, SETTING ASIDE, 87 1. cases where the Court will set a Master's report aside, 871. RESTS, TAKING ACCOUNT WITH, 829 — 839. meaning of the expression, 829. form of account, taken with rests, 829. Master may take account with, without any special direction, under Order 220, 829. cases where Court has charged executors or trustees with compound interest, by ordering it to be taken " with rests," 829, et seq. grounds on which executor or administrator may be charged with simple interest, 830. he must not keep money dead in his hands without good reason, 830. rate of interest charged against executor, English rule, 830, 831. our rule, 836. where breach of trust, higher rate charged, 831. if executor uses trust money, he must pay the interest he has made, 831. 2032 INDEX. MASTER'S OVFlCE—cotiimueii. RESTS, TAKING ACCOUNT WITH — continued. if the fund employed in trade, the cestui que trust has the option to lake either the interest, or the profits, 831. instances of executors having been chai'ged with the highest rate of interest, 832 — 834. cases where he will be charged with compound interest, 834. the principle on which they are thus charged explained, 835. in this Province six per cent, charged, 836. no separate rates of interest applicable to different cases in this country, 836. *' with rests, ' means compounding every year, 837. executor not bound to call in money invested by testator at six per cent., in order to invest at higher rate, 837. executor, guilty of negligence merely in omitting to invest moneys, will be charged with interest at six per cent., 838. general rule is, that the Court contents itself with charging trustees with the principal only of what thf:y might have received, hut have not received ; and does not, in addition, charge them with interest, 839. executor may be allowed his commission, though charged with interest and rests, 839. improper to charge a mortgagee in possession with annual rests on rents received by him, until he is paid off in full, 839. agent chargeable with annual rests, 839. RESTS, MORTGAGEE IN POSSESSION, CHARGED WITH, 84O — 844. ' usual mode of taking account against mortgagee in possession, 840. it is not, of course, to direct rests against the mortgagee in possession, 840. rule, where interest in arrear at the time of taking possession, 840. mortgagee has the right not to be paid piece-meal, 840, 841. instances of his being charged with rests, 841. where he has taken bills for arrears of interest, which have been dishonored, 841. rests sometimes made in taking accounts of occupation rents, 841. rests against an incumbrancer, 841, 842. by English practice, rests must be ordered by the decree, 842. but in Ontario the practice y; different, under Order 220, 842, n. (2). mode of calculating interest, where the direction is to ascertain the balances in the hands of an accounting party at the end of each year, and to compute interest thereon at the end of each year, 843. mode, where in such a case rests are ordered, 843. estate of bankrupt executor charged with the amount of rests, notv?ith- standing the bankruptcy, ^43. half-yearly rests, not generally allowed, 844. SALE UNDER MORTGAGE DECREE, IO37 — IO5O. in England this power is given to the Court of Chancery by 15 & 16 Vic c. 86, s. 48, 1037. it gives no absolute right to the parties to require a sale, but a power to the Court to decree it, 1037. object of the act, 1037. when sale refused, 1037, 1038. orders, 426, 428, and 429 have been framed from this statute, 1038. orders 430, and 431 on the sam^ subject, 1038, I039. order of 29 June, 1861, presumed to be still in force, on the same subject, '039- when subsequent incumbrancer entitled to a sale, 1039. where decree is for sale, the Court will not, on default, grant an order of foreclosure ar/a?'/'^, 1039. infant defendants, not entitled, as a matter of course, to an enquiry as to whether a sale or foreclosure is most to their benefit, 1039. but there appears to be a difference of opinion on this point, 1039, 1040. INDEX. 2033 I MASTER'S 0'F¥\CE— continued. SALE UNDER MORTGAGE DECREE — continued. a judjjment creditor is entitled, at his option, to a decree either for sale or foreclosure, 1040. in a later case it was held that the rule is to grant a reference, as of course, to enquire whether a foreclosure or sale is more for the benefit of the infant, 1040. if affidavits are filed satisfactory to the Court, or if the guardian consents, the reference may be dispensed with, 1040. provisions of the Stat. 4 and 5 William and Mary, c. 16, s. 3, 1040, 1041. prima facie, a mortgagor is entitled to six months to pay amount of mort- gage money, 1041. to obtain a sale at an earlier day, some special ground must be shown, 1041. an order for payment of deficiency, after sale, will not be made against an assignee, 1041, 1042. but against the mortgagor only, IO42. case of an agreement to release part of mortgaged premises, on payment of part of mortgage money, 1042. mortgagee not compelled to piove his claim in insolvency, 1042. chartered banks of the Province have a right to a decree of foreclosure, upon a mortgage held by them as security, 1042. the Court will, where it is considered beneficial to an infant defendant, direct a sale, instead of a foreclosure, without requiring any deposit to cover the expense of the sale, 1042. cases where a sale ordered, 1043. the strict right of the mortgagee is foreclosure, not sale, 1043. rights of equitable mortgagee less clear, 1043. the principle now established, 1043, 1044. right of foreclosure clearly belongs to the mortgagee of the equity of redemption, 1044. depositee of title deeds also entitled to foreclosure, 1044. doubts expressed as to this rule, 1044, 1045. it seems that the legal or equitable mortgagee has a general right to a sale, where the security is, or is thought to be, scanty, 1046. it is a settled rule in equity that a mortgagee in exercising a power of sale, must take reasonable means of preventing a sacrifice of the property, 1047. where the prayer of the bill is in the alternative for either a sale or fore- closure, the Court will at the instance of the plaintiff, make a decree for sale, and in the event of the sale failing to produce sufficient to cover the claim of the plaintiff, order foreclosure, 1048. mortgagee of a reversion entitled to a sale, 1048. assignee under the insolvency of the mortgagor has no right to pray for a sale of the mortgaged estates in a suit for redemption of the several incumbrancers, 1049. a power of sale in the mortgage does not affect the right of foreclosure, 1049. rule different where there are trusts, 1049. mortgagee of stock, and personal chattels entitled to sell, upon notice — but he is also entitled to foreclosure, 1049. and this also in the case of a reversionary interest in stock, 1049, 1050. mortgagee of a policy of insurance entitled to a sale, 1050. sale may be ordered, though foreclosure only prayed, 1050. no sale can be made as against a mortgagee with a paramount title without his express consent, unless it be made subject to the mortgage, 1050. SALE, PROCEEDINGS UNDER AN ORDER FOR, II39— 1163. orders 453, 454, 374. and 375, provisions of as to sales, 1139. who are the parties to be served under these orders, 1 140. how warrant underwritten, 1 140. orders 376, and 377, as to the proceedings in the Master's office, 1 140. 2034, INDEX. MASTER'S OYYICE— continued. SALE, PROCEEDINGS UNDER AN ORDER FOR — continued, order 597, as to style of suit, 1 140. what the advertisement should contain, 1 140. what condition of sale is objectionable, 1141. duty of Master well pointed out in McDonald v. Gordon, 2 Cham. R. 125. order 378, provisions of as to the duties of the Master, 1141. duties of mortgagor in settling the advertisement in Master's office, 1141. when confirmation of sale may be opposed before Master, 1141. particulars' of advertisement should be verified by affidavit, 1142. auctioneer's fitness usually verified, 1142. order 379, as to the conditions of sale, 1 142. order 380, as to upset price, and reserved bidding, 1 142. from what lime the purchaser will be held liable for interest, 1 142. usual for Master to fix either an upset price, or a reserved bid, 1 143. reserved bid, practice as to, 1143. reserved bid, an unsatisfactory proceeding, 1 143. entry of Master on settlipg the advertisement, 1 144. auctioneer's fees, what should be allowed, 1145. auctioneer not entitled to a percentage, 1 145. he can recover no more than the sum named by the Master ; and it he re- fuses to make the necessary affidavit of sale, he will be attached, 1145. duplicate advertisement should be filed, 1 145. conditions of sale not settled by Master, 1145. orders 378, and 382 as to, 1 145. stiictly, the sale is a cash one, 1145. but this right is frequently waived, I145. sale, how and by whom conducted, 1145. order 383, as to this, 1 145. neither Master nor his clerk should act as auctioneer, 1145. order 384, as to biddings, 1 145. solicitor conducting the sale, allowed a fee, 1146. adjournment of sale, how made, I146. order 381, as to parties entitled to bid, 1146. cases under this order, 1 146, 1147- party to the suit, desirous of purchasing should obtain an order giving him leave to bid, 1147- to whom leave will be given, 1 147. order 385, as to the deposit, 1147. order 386, as to the affidavit of sale, 1147. newspapers containmg advertisement need not be filed, 1148. warrant " to settle report on sale," to be served, 1148. on whom to be served, 1 148. order 387, as to the form of the report on sale, 1148. report to be filed in Toronto, 1 148. becomes absolute after fourteen days, unless appealed from, 1148. practice where sale abortive, 1148, 1149. duty of Master where it is oflfered to shew that improprieties have been committed at the sales, 1149. when a re-sale directed, 1 149. purchaser, semble, has a right to take out the report on sale, 1 149. besides the remedy before the Master, a party injured by an improper sale may move the Court to set the sale aside, 1149. order 388 regulates this practice, 1 149. meaning of the term "highest bidder" ; omission in advertisement, what is the effect of, 1150. nature of the contract entered into by a person becoming a purchaser at a sale under a decree, 1150. ' " opening the biddings," meaning of, 1150. when this will be done, H50, I151. who may open the biddings, 1151. INDEX. 2035 MASTER'S OYYlC^—conHnued. SALE, PROCEEDINGS UNDER AN ORDER FOR^ — continued. rule is, that a purchaser is not bound by any irregularity in the proceed- ings, so as to cause him to lose the benefit of his purchase, H51,' 1152. solicitor having the conduct of a sale cannot withdraw the property after a bid has lieen made, 1153. the biddings will not be opened, after great delay, against an innocent purchaser, unless misconduct is shewn on the part of fhe purchaser, 1 153. mere advance of price is sufficient to open the biddings, 1153, H54- what advance will induce the Court to open biddings, 1154, 1155. where biddings opened, purchaser entirely discharged from his purchase, "55- . . . . ■ the rules which regulate the practice of opening biddings, do not apply when a colliery is the subject of sale, 1156. when the application to open the biddings should be made, 1157. none but very particular circumstances will induce the Court to open the biddings, after the report on sale has been confirmed, 1 157. fraud will, however, be a sufficient ground, 1158. application to be made by motion, 1158. notice of motion must be served on the purchaser, and on the parties to the cause, 1 158. what the order usually directs, 1 1 59. consequences of default in complying with the terms of the order, 1 160. proceedings upon the resale, 1160. deposit paid on opening biddings, considered as part of the purchase money paid, 1161. Court will, where it is for the interest of the parties, allow a sale to be made by private contract,' Ii6t; 1162. practice in such a case, 1162, 1163. Proceedings after tfie confirmation of the report on sale, 1 163, 1 1 64. order 389, as to these, 1163. how possession obtained by purchaser, 1163, 1164. when the purchase money will be ordered into Court, 1164. SIMPLE CONTRACT, CLAIM ON, 904. particulars shewn by affidavit, 904. if creditor dead, how claim brought in and proved, 905. case of claim brought -in by assignee of bankrupt or insolvent, 906. case of claim brought in by assignee of debt, 906. case of debt due by testator to his surviving partners in his separate account, 906. -, rules of priority in which the various claims should be fixed by the report, and paid by the Court out of the assets of the estate, 906. present rule settled by 29 Vic. c, 28, s. 28, 907. rule as to estate of person dying before i8th September, 1865, 907. distinction between legal and equitable assets, 907. legal assets, what are, 907. true test, as to whether assets are legal or equitable, 908. equity of redemption may be sold under 12 Vic. u. 73, 908. and is, therefore, usually a legal asset, 908. exceptions to this rule, 911. proceeds of sale of real estate, equitable and not legal assets, 909. case where assets are partly legal, and partly equitable, 910, 911. case of "mortgagee, and mesne incumbrancers, 913. if an asset be equitable, all claims as to it are paid pari passu, but if legal, in a certain order of preference (excepting in the "case of a person dying after i8th September, 1865), 912. funeral expenses allowed before any debt, even befoi't a debt due to the Crown, 912. , proving the will, or taking out administration, 913. ' costs of a suit in equity considered as expenses in administering the estate, and are a first charge, 913 2036 INDEX. MASTER'S OFFICE-— continued. SIMPLE CONTRACT, CLAIM Oti—COttthtUed. meaning of the expression " testamentavy expenses,^' 913. the third occasion of disbursement is the payment of debts, 913. penally if executor pay these out of the due order of priority, 913. testator cannot alter th^ rules of precedence, 913. case of debtor dying domiciled in England, leaving assets in a foreign country, what rule governs in the administration of the assets, 914. solicitor iias-a i^rior right to his costs, even as against specialty creditors, 915 Crown debts by record or specialty preferred to all other debts, 915, 916. rule as to Crown debts in Ontario altered by 29 Vic. c. 28, s. 28, and Con. Slat. U. C, c. 5, 916, 917. duty of Msster after having received proof of claims, 917. practice as to reporting on the usual enquiries directed by an administra- tion order, 917. first enquiry, account of personal estate not specifically bequeathed, 917. Master should take care that the account is framed in accordance with his directions, 917. executor of deceased partner, bound to prepare account from the partner- ship books, 918. .r^coKi? direction, to take an account of testator's or intestate's debts, 918. meaning of this enquiry, 918. how account made up in answer to this enquiry, 918. /.^iVrf enquiry, — account of funeral expenses, 918. object ot this enquiry, 918. what are proper allowances under this enquiry, 918. first duty of executor to bury testator, 918. funeral expenses are allowed before any debt or duty whatsoever, 919. but no extravagance is permitted, 919. what allowed as against creditors, 919, 920. cost of tombstone allowed, 919, n. (i). picture of deceased not, 919, n. (i). funeral expenses should be in proportion to the estate, 919, n. (l). cases of amounts allowed, 918, 919, 920, 921, 922. mourning for widow and family, not a funeral expense, 921, n. (4). case of a marble statue, 922. testamentary expenses are included in the inquiry as to funeral expenses, 922, 923. fourih enquiry, legacies left by testator, 923. what is a " legacy," 923. this term, in ])ractice, used in its widest sense, 923. fifth enquiry, what- part, if any, of the personal estate are outstanding, or undispose(;l of, 923. how this shoulrt be shewn by the accounts filed, 923. direction of decree that the testator's personal estate, not specifically be- queathed, be applied in payment of debts and funeral expenses, in a due course of administration, and then in payment of legacies, 923. sixth enquiry, what real estate the testator died seized of, or entitled to, at the time of his death, 924. how this enquiry is answered, 924. object of the enqiiiiy, 924. seventh enquiry, what incumbrances affect testator's real esta'te, 924. how this enquiry is answered, 924. when widow entitled to dower secured out of surplus, after claim under mortgage satisfied, 924. eighth enquiry, what rents and profits of testator's real estate have been received by executor, 925. how this enquiry ib answered, 925. administrator dealing with real estate, is treated by the Court as an executor, 925. INDEX. 2037 MASTER'S OFFICE— coniinueii. SIMPLE CONTRACT, CLAIM ON — continued. executors dealing with real estate without authority under the will, treated as trustees, 925, their duty in such a case, 925. SUBSEQUENT PROCEEDINGS IN MORTGAGE SUITS, in six different cases and their subdivisions, 1116^—1139. First, where the case is foreclosure between mortgagee and ?nortgagor^ or their assigns simply, and the mortgagor or his assipiee pays, U16. order 450, as to this, in6. practice where the mortgagor applies to the Court for further time to pay, III 7. cases on this point, 1117, 1118, 1119. Secondly, where in a foreclosure suit between mortgagee and mortgagor^ or their assignees simply, default is modi in payment, 11 19, order 451, as to this, 1119. final order of foreclosure, practice in obtaining, 11 19. what bank officer shall certify, 1 1 20. cases on the application for this order, 1120, Ii2i, 1122. case, where a final order iox sale is moved for, H2i. order issued by Registrar, 1122. how order of foreclosure registered, 1122. practice where, after taking the account in the Master's office, and before final order, the mortgagee receives moneys on account, or goes into possession, or collects rents, 1122. orders 457, 458, 459, 460 on this point, 11 23. Thirdly, where there is a subsequent incumbrancer in a foreclosure case, and he niakes default, 1 124. practice in such a case, 11 24. orders 441 to 554 inclusive, referred to, 11 24. Master to give incumbrancer six months to redeem, and the mortgagor three, 11 24. Fourthly, where there are several subsequent incumbrancers, in a case for foreclosure, and they all make default, 1 125. • what the report will state in such a case, 1125. practice in such a case, 11 25. possession, how obtained, 1125. order 464 on this point, 1125, 1126. application under this order cannot be made ex parte, 1126. order applies to mortgage cases only, 11 26. tenants of mortgagor cannot be dispossessed under this order, 11 26. cases decided under this order, 11 26, 1127. sale decrees, practice, where an incumbrancer redeems the plaintiff, and where a subsequent incumbrancer redeems a prior one, 11 27. order 452 points out mode of proceeding. 1127. order 450, effect of, 1128. details of proceedings under these orders, 1 1 28. setting aside orders for foreclosui'e, and enlarging the time to redeem, II29. when defendant not allowed to move to set aside final order for foreclosure, 1129. when mortgagors cannot move for this purpose. 1 129. final order set aside by purchaser of equity of redemption, 1 129. when a foreclosure decree cannot be opened, H29. will be opened in case of fraud or collusion, 1129. enlarging the time to redeem and opening the foreclosure, 1 1 29. mortgagor may be relieved in certain cases, 1129. application to be made, by whom, 11 29. as a general rule, this indulgence is granted in a foreclosure suit only, H29. relief may be granted under special circumstances, 1130. Court will give more than one extension of time, on good cause shewn, 1 130. but the time is not enlarged, as of course, 1130. 105 2038 INDEX. MASTER'S OV¥lCE— continued. SIMPLE CONTRACT, CLAIM ON — continued. a strong case must be made to support a third or fourth application, 1130. what must be shevm on the application, 11 30. what period will be granted as an enlargement, 1131. order for enlargement, what it commonly directs, 1131, 1132. consequences of the conditions imposed by the order, not being complied with, 1 132. Court will order a new day for payment, 1132, 1 133. applicant, what he must shew, 1133. enlargement may be made after enrolment of the order absolute, 1 133. enlargement will also be made by reason of some act done by mortgagee, II33- not the practice to put the person redeeming upon terms of immediate payment of interest and costs, when time enlarged by reason of the act of the mortgagee, 1 134. foreclosure may be opened, if the mortgagee sue upon his covenant or bond, 1 134, 1 135. it will also be opened, if the decree have been obtained by false evidence, or other fraudulent or collusive practices, 1136. when foreclosure will not be opened, 11 36, 11 3 7. when an incumbrancer seeking to open the foreclosure will be required to give security for costs, 1157. laches. Court will not assist a party guilty of, 1 138. Fifthly, where, in case of a decree for sale, there are no incumbrancers, 1138. in such a case a sale takes place after the expiration of the six months given by the report, 1138. and the proceedings to obtain an order for sale are the same as those for obtaining an order for foreclosure, 1138. what is to be shewn on moving for an order absolute for sale, 11 38. Sixthly, in a similar case, where there are incumbrancers, and they all make defauk, or where one redeems, H38. difference between sale and foreclosure decrees, 1138. order 456, as to incumbrancer desiring a sale, 1139. a sale will not be ordered at the instance of a subsequent incumbrancer until after the mortgagor has had the usual time to redeem, 1139. SURCHARGE, PROCEEDINGS ON, 844—847. practice under Order 237, 844, duty of Master after accounting party has given all his evidence, 844. " hear and determine," and "settle report," synonymous terms, 845. mode of proceeding to, 845, 846. Order 247, on this practice, 845. power of jilaster to open case for reception of new evidence, 845. draft report, preparation of, 846. appointment to sign engrossment, 846. report shall bear the date of its actually being signed, 846. proceedings on the appointment ' ' to sign, " 846. no evidence can be received after report actually signed, 846. Court gives credit to what the Master reports as occurring in hit presence, 846. pending an enquiry, the Court will not interfere with Master, 847. Master's report speaks from its date, 847. not to be dated until the costs have been revised, 847. TRUSTEES, APPOINTMENT OF NEW, I383, I384. what evidence required, 1383. order to be made thereon, 1383. proceedings where decree orders conveyance of trust estate, 1385. trustees appointed by Court, not authorized to appoint successor-, except in the case of a charity, 1384. INDEX. 2039 MASTER'S OFFlCK—coniiniied. TRUSTEES, APPOINTMENT OF NEW, l8o6, 1807. practice in Master's office, on, 1806. where counter proposal made, 1806. agreement to act should be filed, 1806. evidence required, 1806. report to be filed, and may be appealed from, 1807. vendor's lien, 1008—1019. what it is, 1008. when it exists, 1009. how affected by vendor taking a draft, note, or bill of exchange for the unpaid money, 1009. or by taking security by mortgage, bond, or covenant, 1009. this lien has priority over a registered judgment, loio. lien retained where land conveyed in consideration of vendee providing vendor with maintenance, washing, &c., loio. cases where lien held to exist, or to have been lost, loio, loii, 1012, 1014, the question sometimes becomes, in a great measure, one of intention, loii. when lien not named, 1012, 1013. the principle that a vendor, by taking an endorsed note as security for unpaid purchase money, does not lose his lien, is equally applicable where the security given is a bond, in which a third person joins as security, 1014. rights and franchises of a railway company do not prevail over a vendor's lien, 1014. the taking a distinct security is always prima facie evidence that the lien has been abandoned, 1014, 1015, 1016. other cases in which Courts of Equity have raised a lien upon property- for money expended, or debts remaining unpaid, 1016. case where money advanced without notice that the property is trust pro- perty, 1017. case of assignment by debtors, 1018. solicitor entitled to a lien upon fund in Court, recovered by his exertions, 1018. cases where he has no lien, 1018. cases where he has a lien upon documents, 1018. WAllRANT TO CONSIDER, 742 — 746. order 216, provides for this warrant, 742, 743. Master, to keep "Master's Book," under order 238, 743. what to be entered in Master's Book, 743. irregular to proceed in Master's office during the two vacations, 743. no grace allowed on appointments, or warrants, before the Master, an Examiner, or Deputy Registrar, 743- how costs may be recovered against delinquent party, 743. proceedings under warrant to consider directed by Order 217, 744, 74^3. the issue of this warrant discretionary with Master, 744. WARRANT TO CONSIDER, HOW TAKEN OUT, AND UNDERWRITTEN, 746— 751- service of, lifi. must be one clear day between service, and attendance upon, 747. two clear days on all other warrants, 747. Sunday, and other legal holidays not counted, 747. service on a person who has appeared in person, under Orders 44 and 45, 747- when service of warrant dispensed with, 747. warrant " on leaving," — object and service of, 747. proceedings on return of warrant to consider, 748. proceedings prescribed by Order 240, 748. marking of warrant by Master, importance of, 748. no state of facts, charges, or disbursements, to be brought into Master's office, by Order 229, 748. 2040 INDEX. MASTER'S OFFICE— continued . WARRANT TO CONSIDER, HOW TAKEN OUT, AND UNDERWRITTEN — continued. separate warrants not to be issued, by Order 241, 749. consequence of defective underwriting of warrant, 749- reference to be called on and proceeded with at the day and time fixed, unless Master sees fit to postpone, 749. Master may postpone on terms, 749. how far he may go, 749, 750. Master to proceed de die in diem, 750. but may adjourn, under Orders 214 and 215, 750. proceedings of Master, when he adjourns, 75^- parties bound by his direction as to adjournment without service of another warrant, 750. Orders 242 and 243 as to adjournments, 75°* Master's directions as binding as a warrant under Order 231, 751. lapse of warrant, to be avoided, 751. attendance on -vizxtsxA peremptory, 751. in case of non-attendance of a party duly served. Master may proceed ex parte, 751. in case of non-attendance of party by whom warrant taken out, it must lapse, 751. costs given to opposite party attending in such a case, 75'* MASTER (TAXING). See Taxing Master. MEASURES, legal, judicially noticed, 386. MEDICAL MAN, commimication to, not privileged, 410. MEMBER OF PARLIAMENT. See Parliament (Member of), and Privileged Person. MEMORANDUM, notice of the decree, indorsement of, 347. service of notice of the decree, entry of, 347. direction for, how obtained, where service irregular, 347. MERCHANT, assistance of, how and when obtained, 613 ; and see Expert. MILL, partition of, how effected, 706. MINES, manager of, when appointed, 1761 — 1763, 1800. purchaser of, when entitled to possession, 1355. receiver, when appointed of, 1761. MINUTENESS, of plaintiff's interest, immaterial, if existing and indefeasible, 262. MINUTES (OF DECREE OR ORDER), 628—629. alterations in. Registrar's power to make, 630. counsel's signature to, when required, 630. injunction, service of, when sufhcient, in cases of, 1701, 17 10. preparation and issue of, 628. settlement of, 629, 630. appointment to settle, when given out, 629 ; adjournment of, 629. attendance at, and consequences of default, 629. service of, time for, how effected and proved, 629. without appointment or notice, 629. variation of, how effected, 630. motion for, when made, 630. time for, 630. INDEX. 2041 MISBEHAVIOUR, general charge of, acts of misconduct, how far provable under, 538. MISCASTING, decree or order in, rectification of, after enrolment, when permitted, 640. schedules, in, 641. MISCONDUCT, acts of, how far provable under general charge of misbehaviour, 538. executor, of, receiver when appointed, in consequence of, 1 756. husband deprived of income of wife's property for, 81. jury, of, new trial on account of, at law, 687. next friend removed for, 59. wife deprived of equity to a settlement for, 83. witness, of, new trial on ground of, at law, 689. MISDEMEANOUR, plaintiff under sentence of, not required to give security for costs, 25, 26. MISDESCRIPTION, next friend, of, security for costs required in case of, 293, n. (7). plaintiff, of, security for costs required in consequence of, 292. secus, in cross bill, 293. MISDIRECTION, Judge, of, new trial of issue on ground of, 680 ; at law, 683. costs of first trial, 699. MISJOINDER, amendment, leave for, when given at hearing, in cases of, 245, 252. former practice in case of, 190, 191, 251 ; present practice, 193. injunction, or receiver to protect property pending litigation, notwith- standing, 253. MISNOMER, correction of, in title of cause, by answer, 458. MISTAKE, action restrained on ground of, 1640. answer, in coiTection of, by supplemental answer, when permitted, 475. Court, of, dismissal of bill without costs, in case of, 484. Judge, of, new trial at law oh ground of, 680. mutual, bill filed under, dismissal of, without costs, 484. next friend of infant not deprived of costs out of the estate, for, 65. rectification of, in proceedings on behalf of charities, 9, 309. of infants, 58, 308, 309. witness of, new trial at law on ground of, 690. MODUS, certainty required in allegations of bills to establish, 302. class suit, when permitted in cases of, 195, 196. decreed on defendant's admission under general relief in tithe suit, 304. evidence in case of, 545- issue, right to, in cases of, 670. owner of inheritance necessary party to suit to establish, 168, 218. proved by defendant, plaintiff may have decree for, 305 . MONEY, payment into Court, 1808 — 1823 ; see Payment into Court. payment out of Court, 1824 — 1833 ; see Payment out of Court. MONTH, how computed, 289. MORAL CHARACTER, discovery must be given as to facts reflecting on, 399. unless they render defendant liable to spiritual censure, 399. 2042 INDKX. MORAVIAN, affirmation of, how taken, 576. answer of, how talcen, 467. MORTGAGE, and see Master's Office. accompanied by bond, one not redeemable without the other, 273. assignee of, last, only necessary party, 155. deed, when provable as exhibit at hearing, 562. husband and wife, by, resulting trust in, 100. investment in, 1376 — 1379 ; and see Investment in Purchase or on Mortgage of Land. notice of, proved by one \vitness and combinative circumstances, though denied by answer, 532. persons interested in money, necessary parties to foreclosure or redemption suit, 170, 174, 213. unless interests sufficiently represented, 170, 215. raising money by, 1382 ; and see Raising Money (by Sale or Mortgage). several, to same mortgagee, are not redeemable without others, 272. wife's, assignable by husband, if for years, 100 ; secus, if in fee, 100. wife's, in fee, not affected by his bankruptcy, 100. MORTGAGEE, and see Master's Office. account directed at instance of, against purchaser from mortgagor, though not prayed, 306. assignment of mortgage, not necessary party after, 174, 215. but may be, to account for rents received, 216. claimants under, in redemption suits, costs of, 215. costs of, 1474 — 1485 ; and see Costs. costs of, at law, account of, not directed on motion under 7 Geo. II. c. 20, unless alluded to in bill, 271. creditors of, sufficiently represented by trustees, where assignment for their benefit, 171. derivative, when necessary parties, 15S, 216. original mortgagee necessary party to foreclosure suit by, 1 74. different estates for one sum, of, can require their simultaneous redemption, 171. different estates mortgaged by one mortgagor, of, can require their simul- taneous redemption, 171. although one, a mortgage of personalty and the other of realty, 171. discovery whether a trustee, not required in redemption suit, 404. election between suit and action, not put to, 513. heir of, when necessary party, 154 ; when not, 154, 174, 175. foreclosure suit by, parties to, 179, 180. land, necessary party to suit for, 219. mortgagor necessary party to suit by second to redeem first, 1 72. original, necessary party to suit by derivative to foreclose, 1 74. personal representative of, foreclosure suit by, jMrties to, 180. personal representative of mortgagor necessary party to suit by, as general creditor, 238. possession, in, receiver not appointed against, 1751, 1752. unless paid off, 1755. security to refund, when taken on payment off of, 1 753- prior, not necessary party to foreclosure suit by subsequent, 173; but is to redemption suit, 234. prove against personalty for whole debt, and realise his security, pemiitled to, 238. purchaser of, necessary party to suit to set purchase aside, 234. second may redeem first without subsequent incumbrancer, 234. second, receiver, when appointed at instance of, 185S. title of mortgagor, when not required to discover, 415. INDEX. 2043 MORTGAGOR ; and see Master's office. account directed against purchaser from, at in.stance of mortgagee, though not prayed, 305, 306. bankrupt, not necessary party lo foreclosure suit, 1 74. offer by, to redeem mortgagee necessary, when, 310. party to suit by, second mortgagee to redeem first, 17* receiver, when appointed against, jurisdiction, when out of the, 117. redemption of bne of several estates, mortgaged for one sum, without the others, not permitted, 171. or one of several estates mortgaged by him to one mortgagee, 172. although one mortgage of personalty and the other of realty, 172. title of, mortgagee not bound to discover, when, 415. waste by, when restrained, 1653. MORTGAGOR AND MORTGAGEE, plaintiff's title in suits between, how stated, 265. MORTMAIN ACT, costs, when devise declared void under, 1533. MOTION FOR DECREE, 516—521. affidavits, plaintiffs in chief,. time for filing, 518. in reply, time for filing, and list of, 519. enlargement of, how obtained, 519. defendants, time for filing, and list of, 518. enlargement of, how obtained, 519. amendment of bill, after service of notice of, 329, 5 1 7. after unsuccessful, 520. answer, may be treated as affidavit on, 517. answer, reading of, on, by plaintiff, 517. by defendant or co-defendant, 518. sufficiency of, admitted by service of notice of, 517. appeal from order on, 520. cause heard on, as to defendants added after replication, 517. comparative advantage of, 521. cross-examination of defendant on his answer, in cases of, 519. cross-examination of witnesses on, 519. how taken, 519. time for, 519. time for giving notice to produce witness for, 519. evidence on, manner of taking, 517. evidence taken in another suit, used on, when, 552. hearing of, 520 ; and see Hearing. injunction, motion for, turned into motion for decree, 1620, 1699. notice of, 517; form of, 517. order made on, 520. right to, suspended, pending time to answer, 465. service of notice of, 516, 517 ; and see Service. setting down, 518. supplemental bill, hearing on, 1602 ; evidence in such case, 1602. time for giving notice of, 516 ; extension of, 516. when time to answer enlarged, 518. MOTIONS, 1608— 1624. abandoned, what are, 1622, 1623, costs of, 509, 1468, 1616, 1622. * payment of, necessary before renewal of motion, 1469 ; and see Costs. affidavits on, 1616, 1617. cross-examination on, 1618 ; how taken, 1618. notice of reading, when necessary, 1616. search for, 1616. time for filing, 1617 ; injunction in cases of, 1617. withdrawn, cannot be, 1618. 2044 INDEX. MOTIONS— coniinueii. appeal from order made on, 1567, 1574, 1575, 1624; and j^« Appeals AND ReHEARINGS. applications made by, 1604. claimant under decree, by, 1 608. contempt cannot be made by person in, when, l5o8. costs of, 1621 — 1623 ; sie Costs. course, of, 1608, 1609 ; how made, i6io. orders on, 1606, 1608 ; and see Orders of Course. days appointed by Court for, 161 1. definition of, 1608. different sorts of, 1608. disability, by person under, 1613. discharge or variation of order on, 1567, 1569, 1624. dismissal of bill, for, on plaintiff's application, 484 — 486. because filed without authority, 254, 255. on defendant's application, on satisfaction of plaintilTs demand, and payment of costs, 487, 488. non-prosecution for, 495 — 513. ex parte, when and how made, 1610, 161 1, evidence on, i6l6— 1618, 1618, n. (i). belief as to, when admitted on, 1619. oral, on, 1618 ; hoW taken, 1618. infant, how made, on behalf of, 62, 1613. information suit, in, on behalf of whom made, 1613. injunction, for, 1691, 1694, 1695. married woman, how made on behalf of, 87, 1613. matters which may be decided on, 1620. minutes, to vary, 630, 631. mode of making, and course of proceeding on, 1615, 1617. tie exeat, for, I740'- next friend, when made by, 1613. next friend for purposes of application, necessary when, 62, 1613. notice, when made on, 1608, 1609. notice of, 1611 — 1614- amendment of bill after service of, effect of, 338, 1623, 1699. form of, 1611 ; special leave, when made by, 1612, 1615, 1695. join in, who may, 1612. pauper, by, 37, 1611. several objects may be included in, 161 1. terms of order sought, statement of, l6ii, 1612. order on, must not, except by consent, exceed notice, 1620. affidavit of service, when taken on, 1620. discharge or variation of, 1624. drawn up, how, 1624. previous proceedings, matters proved on, may be noticed on, 1619, 1620. process of the Court, application relating to, usually made by, 1605. purchaser under decree, by, 1608, • receiver, for, 1769, 1770. refusal of, taxation of costs on, without formal reference, 1622. saving, 161 6. security for costs, on ground of mis- or non-description of plaintifi^ 292. jurisdiction, because plaintiff out of, 26. service of notice of, 1613, 1614 ; and see Service. special, 1608 — 1610 ; either ex f arte or on notice, 1610. days for making, 161 1. special leave for, when necessary, 1611, 161 2. support of, who may be heard in, 1613. MULTIFARIOUSNESS, 275—285. definition of, 275- demurrer for, 394. objection for, cannot be raised at hearing, except by Court, 285, 443- INDEX. 2045' MUTUAL CONVEYANCES, partition suit, in, 710. NAME, defendant's, statement of at end of bill, 313. subpcena ad testificandum, in, 578. petitioners, statement of, 1625. plaintiffs, statement of, in bill, 292 ; omission, how taken advantage of, 292. plaintiff's solicitor and agent, and of plaintiff if acting in person, to be in- serted at end of bill, 313. solicitor, of, or of party ' (if acting in person), to be written or printed on writs or summons, and on all proceedings left at Record and Writ Clerks'' Office, 361, 362 ; and in agency cases, principal solicitors also, 361. NE EXEAT REGNO (WRIT OF), 1732— 1748. account, issued in cases of, 1734- affidavits, on application for, 1627 — 1629. account, in cases of, 1737, 1741. committee of lunatic, when sworn by, 1739, I74°' debt, positiveness required as to, 1736, 1737, 1740. facts to be shown by, 1 741, 1743- infant, may be made by, 1 740. married woman, may be made by, 1739, n. (i), 1740. sworn before whom, and when, 1 742. amendment of bill, not dissolved by, 338, 1 748. amount to be marked on the writ must be shown, 1736, 1 743. application for, how made, 1 740. arrest for another demand, granted after, 1735, 1736. not issued, when person not liable to, 1732. bill, statements of, in cases of, 1739. cases in which issued, 1732 — 1740. cestui que trust, issued at instance of, 1733. colonies, when issued against person domiciled in, 1737- concurrent jurisdiction, issued in cases of, 1734. not if defendant previously held to bail for same demand, 1735- course of business, not granted against person going abroid in, 1 738. defendant, at instance of, against plaintiff, 1739 ; against co-defendant, 1739- definition of, 1732. discharge of, 1745 — 1748. answer and further order, when granted till, 1 746. application for, how made, 1745. damages, inquiry as to, on, 1748. Insolvent Debtors Act, on defendant taking benefit of, 1747. in-egularity, for, 1745- merits upon, 1746. payment into Court of the amount, on, 1746. subsequent arrest, at law for same demand, no ground for interference of the Court, 1748. terms of nonaction being brought, on, 1747. I74S- evidence on application for, 7410 — 1742- ex parte, application for, made, 1 740. execution of writ, 1744, 1745. deposit of amount marked may be taken, 1 744. discharge of defendant when arrested under, how obtained, 1 744. doors not to be broken open, on, 1744. security must be satisfactory to sheriff, 1 744. sheriff, duty of, on, 1745, 174.6. foreign state, when granted against persons domiciled in, 1737- foreigners, when granted between, 1737. not granted against, on foreign contract, unless plaintiff British subject, 42, '737- . , indorsement on writ of amount for which security to be given, 1 743. 2046 INDEX. NE EXEA T REGNO (WRIT OY)— continued. personal representative, when issued against, 1 743- specific performance, when issued in cases of, 1 743- Ireland, against person domiciled in, 1737, jurisdiction, going out of, previously to discharge of, effect of, 1745' jurisdiction, not granted at instance of person resident out of the, 1738. lost instrument, issued in case of, 1 734. lunatic, granted at instance of, on aiBdavit of committee, 1739, I74°- married woman, personal representative, not granted against, 141, 173^ married woman, granted at instance of, against husband, 1739, n. (l). pecuniary demands, on which issued, 1736. prayer for, 290, 313, 1739; part of relief, 290. return of writ, 1745, 1746 ; forms of, 174S. Scotland, against person domiciled in, 1737- specific performance, when granted in suit for, I734> I735- not if applicant's equity doubtful, 1735' summons suit, in, 1739- summons, application for, when made by, 1 74°, n. (2). surety, granted whenever applicant liable as, 1 739. surety, discharge of, 1747 ; not ordered before decree, 1747, I74?' on payment of marked amount, although larger sum due, 1747- undertaking as to damages, on application for, 1 742. next friend of infants, how given by, 1741. writ of, preparation and issue of 1743- NEGATIVE PREGNANT, traverse of interrogatories, must not be by, 452, 453. NEGOTIABLE INSTRUMENT, transfer of, restrained, when, 1677. application usually made f;t; /a?-^^, 1677, 1792' forged indorsement, in case of, 1677. NEUTRAL, resident in foreign country, cannot sue, 43. although a consul, if he trade, 43. NEW DEFENCE, infant, when entitled to make, 136 — 138 ; and see Infant. married woman, when entitled to make, 1 50. NEW TRIAL OF ISSUE OR QUESTION OF FACT, 677—697. appeal from order on application for, 697. application for, inade in Chancery, 693. costs of, 696. time for, and how made, 693. Chancery, grounds for directing in, 677 — 682. absence of material witness, 680. evidence, on ground of improper rejection of, 681. new, on ground of, 678, 679. forgery, 678, 680. fraud, 679. irregularity in trial, 680. land, when matter relates to, 681. misconduct of jury, 680. misdirection of Judge, 680 ; costs of first trial, 699. perjury, conviction of witness for, 678. surprise, 678 ; case to be made on application, 678. three trials, after, 682. Common Law, grounds for at, 682 — 693 . absence of counsel or attorney, 688. begin, allowing vnrong party to, 685. damages, excessive, 686 ; loo small, 687. INDEX. 2047 NEW TRIAL OF ISSUE OR QUESTION OF 'FACT -continued. evidence, improper admission or rejection of, 682. objection must be taken at trial, 684. new, 691. jury, default or misconduct of, 685, 688. improper discharge of, 687. interest of, 685. improper influence of, 689. misconduct of opposite party, 689. misdirection of Judge, 683. mistake of Judge, 682. postpone trial, on refusal to, 684. second or third, when granted, 692. several issues, when granted as to one of, 692. surprise, 690. verdict, perverse or against evidence, 689. witness, non-attendance or misconduct of, 689. mistake or perjury of, 690. evidence upon application for, 694 ; affidavits, when receivable, 694. further hearing, when directed at, 697. issue or question, form of, not changed on application for, 697. terms on which granted in Chancery, 695 ; at law, 695 — 697. verdict, previous, need not be set aside, 696. NEXT FRIEND (OF INFANT), amendment by adding, when permitted, 54. any person may be, 55. application or bill on behalf of infant must be by, 54> S5i 62. attainment of majority by infant, should not prosecute suit after, 63. consent to act, on appointment of new, 62. consequence of not naming, 54. costs of, 62 — 66 ; and see COSTS. costs, liability for, 62. death of, proceedings on, 61. defendant cannot be, 55, n. (i). description and address of, statement of, in bill, 293 ; in amended bi]l, 319. "• (4)- omission of, how taken advantage of, 293, n. (7). inquiry whether suit of, beneficial for infant, 56, 64. or as to fitness of next friend, 56. not granted on application of next friend in his own suit, 57, 64. lien of solicitor of, 65. motion on behalf of infant, made by, 63, new, appointment of, 61, 62. consent to act and fitness must be shown, 61, 62. entry and service of order, 62. outlaw in civil action, may be, 59. pauper may be, 32, 33, 59. receiver in cause, cannot be, 60, removal of, for misconduct, 59, 60 ; or because adversely interested, 59. retirement of, must give security for costs on, 60. substance, need not be a person of, 59. witness in the suit, may be a, 61. NE:CT FRIEND (OF MARRIED WOMAN), application or bill on behalf of married woman must be by, 87. unless a pauper, 34, 89. bankruptcy of, proceedinss on, 90. change of, proceedings on, 90. consent to act of new next friend, 90. 2048 INDEX. NEXT FRIEND (OF MARRIED WOMAN)— continued. death of, proceedings on, 90. when plaintiff neglects to apply for appointment of new, 90. description and address of statement of, in bill, 293; amended bill, 319, a. (4). omission of, how taken advantage of, 293, n. (7). husband must not be, in suit for wife's separate estate, 87. motion on behalf of married woman, 87. new, appointment of, 89, 90 ; consent to act of, 90. relation, need not be a, 88, 89. retirement of, proceedings on, 90. sanction of Court to consent by, to deviation from course of procedure, 70. security for costs, when required from, 89, 90. on retirement, 90 ; on residence out of the jurisdiction, 91. substance, person of, must be, 32, 88, 89. NEXT FRIEND (OF PERSON OF UNSOUND MIND), application or bill on behalf of, must be by, 5, 67, 68. description and address of statement oi, in bill, 293 ; amended bill, 319 n. (4). omission of, how taken advantage of, 293, n. (7). new, appointment of, 68. omission to name, effect of, 69. position of, 68. sanction of Court to consent to deviation from course of procedure, 70. NEXT FRIEND (FOR PURPOSES OF THE APPLICATION), necessary when, 62. NEXT OF KIN ; and see Master's office, under head of " Heirs at Law, Enquiries as to " administration decree on application of, others not being parties, 342. but they must be served with notice of it, 176, 183, 195, 342. claims by, see Claims (under Decree). costs of, 1528, 1531 ; coming in under decree, 348. inquiry as to, when directed, 619. need not be preliminary to taking accounts, 620. one may sue on behalf of himself and others, when, 195. parties in suits by, 1 76. presumptive, cannot sue, 261. NISI PRIUS (TRIAL OF QUESTION OF FACT AT). ^^^ Issue. NON-ACCESS, proof of, 399, n. (i). NOTARY PUBLIC, affidavit sworn before, out of the jurisdiction, when received, 569. official character, of, how proved, 570. NOTES, Judge's, of evidence, 694, 695. NOTICE, admit documents, to, 535, 559. affidavit, of filing, 577 ; when in support of claim, 577. reading of, when to be used in Chambers, 727. motions on, 577, 1615. INDEX. 2049 NOTICE— continued. motion for decree, on, 517. petitions, on, 577, 1627, 1628. answer, of filing, 471 ; omission of, consequence of, 471. charge of, what facts provable under general, 539. fact only /put in issue, not materials of proof, 540. cross-examination, to produce witness for, 568, 569. demurrer, of filing of,' 426 ; effect of neglect to give, 427. examination de bene esse, 590 ; contents of, and time for giving, 590. injunction, of, 1701, 1711. motion, of, 1610 — 1613 ; and see Motions. pauper, on behalf of, must be signed by his solicitor, 37. replication, filing of, 525 ; form of, 525. special case, of application to set down, where party under disability, 1869. of filing, 1867. NOTICE TO PRODUCE, Chambers, documents at, 729. NOTICE OF THE DECREE (PROCEEDINGS BY SERVICE OF), adding to decree, on application of persons served with, 348. time for application, 348. administration suit, commenced by summons, in, 734, 735. appeal by person served with, 348, 1556. applicable, when, 341, 342 ; improper in other cases, 342, n. (8). copy of decree, duly endorsed, served instead of notice, 348. costs of persons served, 342, n. (7), 348. decree, how far it may be prosecuted before service of the notice, 347. evidence of service, order for leave to attend when sufficient, 348. stage of proceeedings at which required, 347. guardian ad litem for infant or person of unsound mind served with, how ap- pointed, 348. infant, order for service necessary, 343. application for order, how made and evidence, 343. service, how effected, 346, 347. jurisdiction, person out of, order for service on, necessary, 344, 345. application for it, how made, and necessary evidence, 346. leave to attend proceedings, order for service of, 348. persons made parties by, 151, 152, 341, 342. review, bill in the nature of, filed, by whom, 348. service, how effected, 342, 343 ; and see Service. unsound mind, person of, order for service necessary, 343. application for order, how made and evidence, 343. service, how effected, 346, 347. NUISANCE, private, injunction when grantedpn case of, 1663. public, injunction against, at suit of Attorney-General, 1662. of private person, 1663. NUNC PRO TUNC, decree or order, entry of, order for, how obtained, 633 ; when made, 633. enrolment of decree or order, 634. replication, filing, 526 ; at hearing, 614. OATH, answer put in on, unless dispensed with by order, 460. answer of Attorney-General put in without, 1 10, 460. demurrer, put in without, 425. disclaimer, put in upon, unless dispensed with by order, 435. OATH OR SIGNATURE, answer, put in without, by order, 461, 462, 470. order, how obtained, 461. 2050 INDEX. OBJECTIONS, discovery, to, which maybe taken by answer, 445. OBJECTIONS FOR WANT OF PARTIES, 240—246. answer by, 243. demurrer by, 241, 242, 394. discovery, do not lie to bill of, 242. hearing at, 243, 244 ; costs in such case, 243, 614. taken, comparatively rarely now, 243. OBLIGEE, when necessary party, 158. OBLIGORS, necessary parties, 226, 227 ; unless insolvent, 226 ; or very numerous, 227. OCCUPATION RENT, receivership, in case of, partjr when charged with, 1 777> 1 778. tenant, when charged with, 1777. OFFER, balance of account, topaj', not necessary now, 310. equity, to do, when required, 310, 311. demurrer, for want of, 310, 396, 421. when it entitles defendant to decree without cross bill, 310. withdrawn, carmot be, 312. forfeiture or penalty, to waive 311, 397, 398. redeem by mortgagor, to, when necessary, 310. set aside securities, in bills to, 310, 311. specific performance, in bill for, 309, 310. OFFICE, fees of, necessary parties to suit to establish right to, 168. profits of, receiver apj^ointed of, 1 764. OFFICE COPY, AND COPIES. affidavits of, 577. injunction, must be in Court, on application for, 1696. production of, by party taking, 577. answer, official printed copy of, 471, 472. acceptance of answer, taking when not an, 480, n. (2). amendment of, 479. authenticated, how, 471. obtained, how, 471. demurrer of, 427. disclaimer, of, 436. partition, of commission and certificate of, 708. proceedings in the Court, read from, 553. OFFICER, corporation, of, made defendant for purpose of discovery, 112, 113, 246, 269, 304. military or naval, not required to give security for costs, 21. OFFICER (OF THE COURT OF CHANCERY), arrest protected from, when, 667. privileges of, judicially noticed, 386. ONUS PROBANDI, 535—537. affirmative, rests on party asserting, 535. presumption of law, rests on party impugning, 536. «» prima facie, case being made, lies on opposite party, 536. voluntary donation, in case of impeached, 537. OPENING BIDDINGS. See Biddings (Opening), and Master's Office. INDEX. 2051 ORDER, conditional, consequences of non-performance of the condition, 465, and see Decrees and Orders. ORDERS OF COURSE, 1606, 1607. ameivdment of, not permitted after service, 1607. definition of, 1606. discharge of, for irregularity, 1606, 1607. made without delay, should be, 1606. enforced, how, 1607. ex parte, made, 1606. service of, effected, how, 1607. ORE TENUS, demurrer, definition of, 423. confined to case where demurrer already on record, 423. cannot be on same ground, 423. must be co-extensive with it, 423. costs of, when leave to amend given, 431. ORIGINAL BILL. See Bill (Original). ORNAMENTAL TIMBER, cutting down, by tenant for life, restrained, 1659. OUTLAW, Attorney- General necessary party to suit for property of, when, 5. personal representative, not a necessary party to creditor's suit, 206. OUTSTANDING ESTATE, getting in, application for leave to proceed in, how made, 1381. receiver, how got in by, 1 786. OUTSTANDING TERMS, certainty necessary in statement of bills to prevent the setting up of, 302, 303- setting up of, injunction to restrain only granted at hearing, 1708. OWELTY, partition, when awarded under commission of, 706. OWNERS, class suit by one of several, for modus, when allowed, 196. inheritance, of, when necessary parties, 218. PAGAN, answer of, how taken, 461. PAINS AND PENALTIES. ^-^^ Penalty. PAPER, kind of, used for bills and other proceedings, 316. affidavits for, 573' PARAPHERNALIA, wife's, specific.legatees of, when necessary parties to bill relating to, 211. PARENS PATRIAE, informations on behalf of Sovereign as, 4. PARISH, class suit by one of the inhabitants of, when permitted, 195, 196. PARISHIONERS, need not all be parties to suit by parson for tithes, 229, 230. parties to suit to enforce contract on behalf of, 227, 228. 2052 INDEX. PARLIAMENT, journals of, printed copies of, by authority, admitted without proof, 548. judicial notice taken of place of holding, 386. proceedings of, usual course of, 386. prorogation of, time of, 386. sessions of, time of, and time of holding, 386. PARLIAMENT (MEMBER OF), dwelling-house of, what is, for purpose of service of the bill, 351, 352. injunction, or restraining order, for breach of, 1713 ; and see Privileged Person. receiver, objectionable as, 1767. PARLIAMENTARY POWERS, excessive exercise of, restrained, 1676. PAROL AGREEMENT, specific performance of, on ground of part performance, 533. PAROL VARIATION, specific performance not decreed where proved, 304. PARSON, parties to suit for tithes by, 229. revivor of suit by, 18. PART PAYMENT, specific performance of parol agreement on the ground of, 533- PARTIALITY, plea of award by arbitrators charged with, 247. PARTICULARS OF SALE. .J^-^ Master's Office. PARTIES (TO CONVEYANCE), fe Master's Office. PARTIES (TO SUITS), 151—253. absence of, decree, when made in case of, 151. absent, decree, when made without prejudice to rights of, 116, 119. when made saving rights of, 243, 244. on undertaking to give effect to rights of, 245. waiver of relief against, 245. account, in suits for, 174 — 178, 226. accounting persons necessary, 174, 175 ; unless liability several, 226. addition or alteration of, by amendment, 245, 246, 252, 319 — 323, 324, 330 ; and see AMENDMENT OF Bill. by supplemental statement, 1600, 1601. administration suits, to, 160 — 164, 193, 194, 205 — 211. agents, when made, 156, 248, 268 ; when not, 156, 157, 246. annuitants, when necessary, 187. appointees under will of married woman, 184. where one may sue for self and others, 195, 196. arbitrators, when made, 247, 269. ascertained sums, to suits for, 178. assignees of bankrupt, 183 — 211. assignee of mortgage, last only necessary party, 155. assignor of chose in action, or his representative, 158. assignor of equitable interest, 165. assignor of shares in unincorporated joint-stock company, 159. assignor of judgment, 159. when Crown interested z.% parens pairia, 107. when rights of Crown incidentally interested, 105, 106. will, in r,uit, to establish, 191. attorneys, when made, 248, 249, 266. auctioneers, 156. bankrupt not made, 174, 211, 246; unless fraud or collusion charged, 211. INBEX. 205^ PARTIES (TO SVirS)— continued. mortgagor not a necessary party to suit to foreclose, 173. bishop, in suit against sequestrator, i56. In suit by incumbent for tithes, 166. boundaries, to suits to ascertain or settle, 167,219. cestuis que trust, lyg — 183, l84, 214, 303. in foreclosure suits, 214. in redemption suits, 215. in suits by trustees, 179, 181 — 183. charges, to suits to establish, or foreclose, 173, 220, 232—235, class, to suit by or against one of a, 151, 195, 196, 227, 228 j and see Class. co-executor, when not a necessary party, 226. committees of lunatics, 205. concurrent interests with plaintiff", persons having, 151 — 202. contribution, to suits for, 226 — 228. co-obligors or co-surety in suits for contribution, 226 ; where numerousj 227. copy of the bill, persons, when bound by service of, 151, 152, 341 ; and see Copy of the Bill. corporations, members or officers of, when' made, ill, 112, 246, 268, 304. co-trustee, when not a necessary party, 227. covenantee, in specific performance suit, 155. creditor, when one may sue on behalf of hiinielf and others, 192, 195. derivative mortgagees in foreclosure suits, 155. 2l6. devisee of mortgagee in foreclosure suit by personal representative, i54i '74i 179, 180. drawer or prior indorsee of bill of exchange, 166. duties, to suit to establish right to, 229. equity, persons having right to sue in, 166. escheat, persons claiming by, in suit to establish will, 190, 191. executors, all who have proved, 185, 207, 208. acting, necessary parties after release and disclaimer, 208. durante minorilate, necessary party unless he has fully accounted, 206. renouncing, not necessary parties, though holding power of sale, 209. executory devisees, 187, 222. fees of office, to suit for, 168. foreclosure suit,- to, 171, 173, 174, 180, 214, 216, 220, 232, 233, 234, 237. general rule as to, 151, 152. heir, in suit to execute trusts of deed for'piyment of debts, 193. heir, in suit to establish will, 190. not where only to execjte trusts, 190, 191. heir of grantor, in charity informations, 215, 216. heir of mortgagee, in foreclosure suit by his personal representative, 154, 179, 180. impropriator of tithes, 189. inconsistent titles, persons claiming under, 188. effect of joinder of, 191. incumbrancers, prior, in redemption suit, 235. not in foreclosure suit, 173, 235. incumbrancers, subsequent, in suits to foreclose or establish charges, 232. whether legal or equitable, 234 ; if specific 235. not necessary in redemption suits, 235. incumbrancers, upon estate tail, 187. inheritance, owner of, in suit to bind land, 217. custom or m)dus, in suit to establish, 168, 196, 218. specialty creditor, in suit by, 218. secus, where land not to be bound, 218. inheritance, owners of first estate of, and of intermediate estates, 186, 217, 222 ; but not subsequent remaindermen, 221. unless first tenant in tail lunatic, 221. 106 2054 INDEX. PARTIES (TO SUITS)— <:ontmuec/. or nature of estate doubtful, 221. intermediate estates, persons entitled to, 186, 220. when contingent and unascertained, 187. esse, coming into, pendente lite, 188. joint factor, when not necessary party, 227. joint-stock companies, to suits against, 228, 229. joint tenants, 167 ; of a legacy or mortgage money, 170. jointly liable to plaintiff, persons, 225. jointly and severally liable to plaintiff, persons, 222 — 225. land, to suits for, 219. law, person having right to sue at, 153. law, to suit where jurisdiction withdrawn from Court of, 169, 218. legal estate, persons having, 153 — 155. legatees, when legacies are charged on real estate, 183. legatees, where one may sue on behalf of others, 195. legatees, specific, not necessary parties in suits to charge or recover personal estate, 210; except in cases of ademption, 211, n. (i). legatees, specific, of wife's paraphernalia, when made parties, 211. lessees, 168, 219. lessor against assignee, in suit by, 165. partition suit, in, 219. tenant in common, of, 167. lessor of tithes not necessary party to bill by lessee under deed, 169. secus, if by parol, 159, 169. lord of manor, 219, 220. lords of manors, to suits by, as to rights of common, 229. lunatic, in suit on behalf-of, 67, 138, 167. marshal assets, to suits to, 195. modus, to suit to establish, 168, 196, 218. mortgage-money, all persons interested in, to foreclosure or redemption suit, 170, I74> 214; unless interests sufficiently represented, 170, 215. mortgagee, parties to suits by, seeking relief as general creditor, 238. mortgagee not a necessary party to bill by assignee, 174, 215. unless to account for rents, 216. original, in foreclosure suit by derivative mortgagees, ^74■ mortgagee, claimants under, in redemption suit, 215. next of kin, 176. next of kin, when one may sue on behalf of others, 195. notice of the decree, persons when made parties by service of, 151, 152, 342. obligee in a bond or his representative, 158. parishioners, to suits on behalf of, 227, 228. parsons, to suits for tithes by, 229. partition suits, to, 167, 168, 219. partner, surviving, to creditor's suit against estate of deceased partner, 268. partnership suits, to, 174, 175. partnership, to suits against, 225. pawnee or depositee of chattel, to suits by, 182. peace, bills of, to establish right to duties, in case of, 229. pendente lite, incumbrancer or purchaser generally not, 236. unless conveyance of legal estate required, 236, 1588. made parties by supplemental proceedings, 236, 1588. personal representatives, when necessary parties, 160 — 164, 205 — 211, 226, 236, 238, 239, 263. all usually necessary, 207, 208. z.&Tawwi^tzX.o^ durante absentia, 208, n. (i.) de son tort, in suit, against administrator, or executor, 207, 263. deceased, personal representative of, 208. England, must be constituted in, 160, 206. in suit against foreign representative, 206. husband, of, 209. INDEX. 2055 PARTIES (TO SVlTS)—a>ntimie '573- bankrupt, admitted to sue as, 34. claimant under decree, admission of, as, 34. copies delivered to or by, charges for, 39, 40, costs on dismissal of bill against, 121. • on dismissal of bill by, 38, 505. scandal introduced by, of, 38. counsel or solicitor assigned to must not refuse to act, 37. court fees payable by, 38, 39. dismissal of bill of, not ordered ex parte, yi. dispaupering, on the ground of property, 38. because in possession of property in dispute, 38, 121, 122. for vexatious conduct, 36, 38. not ordered, where supplied with funds by subscription, 35. or misconduct was in former suit for same matter, 35. husband and wife, admission of, as, 34. married woman, admission of as, without next friend, 34, 89. next friend of infant, may be, 32, 34, 59. serus oifeme covert, 32. notices on behalf of, must be signed by his solicitor, 37, 161 1. person, cannot be heard in, 37. petition on behalf of, must be signed by his solicitor, 38, 1625. pro interesse sua, examination granted at instance of, 34, 661. 2058 INDEX. P AU PER—coirlinued. representative character, cannot defend in, 120 ; or sue in, 33. second suit by, for same matter, when stayed till costs of first paid, 35. security for costs, when required from, 32, n. (5). PAWNEE AND PAWNER, of chattel, when necessary parties, 182. PAYMENT AND TRANSFER INTO COURT, 1808—1823. administration suit, in, by paity found a debtor, 1817. answer, when directed before, 1813, 1814, 1823. application for, 1819 — 1823. answer on, 1820, 1821. account in book referred to by, wlien founded on, 1821. actual amount may be shown by affidavit, 1821. admission, must be on, 1820 ; nature of, 1820. costs, whether executor allowed to retain money to answer, 1821, 1822. denial of title, not ordered, in case of, 1820. discharge himself by affidavit, defendant allowed to, 1821. decree after, how made, 1822 ; evidence in support, 1822. before, how made, 1819 ; evidence in support, 1S20. interest to be shown on. nature of applicant's, 1818. auctioneer, by, of balance of deposit, 1809. directed, when, 1808 — 1817. directors of company, by, when ordered, 1810. effect of, 1818. injunction, on application for, 1700, 1808. married woman's right by survivorship, effect of, on, 93, 94, ne exeat ^ discharge of, on, 1746. partnership, in cases of, 1815, 1816. admission, clear, generally required, 1816. balance due to him, not when partner insists on, l8i6. unless there has been viah fides, 1816. personal representatives and trustees, by, when directed, 1808 — 1811. balance, extends to any, although claims against it, 1809. balance of, only, ordered in, 181 1. unless money improperly lent, or payments improperly made, 181CX danger to estate, need not be shown, 1809. debt, money must not be a mere, 1 812. debtors to estate, when they are, 1810. discharge of the office, not a, 1818. discretionary powers, in case of, 1809. implied trusts, extends to cases of, 1810. interest, of, not usually ordered, 1817. partner, although fund in hands of, 1810. Jir/wayafzV title only necessary, 1808, 1818. shares only of parties to proceedings need be paid in, 1809. purchase-money, of, on sales by Court, 1354, 1355, 1816. default of purchaser on, 1371, 1372. private contract, where sale by, 1162. purchaser, by, when ordered, 1812, 1813, 1823. receiver, by, of his balance, 1789 — 1790. retainer of, personal representative not affected by, 1529, 1818. security for costs, when directed in lieu of bond, in cases of, 27, 28. trust fund in hands of third party, of, 1812. trusts, in cases of implied, 1810, 1812, 1813. ward of Court, of fund belonging to, i8i8. PAYMENT AND TRANSFER OUT OF COURT, 1824— 1834. abatement, pending, 1594, 1829. absolutely entitled, order not made for payment of interest only to persons, 1828. INDEX. 2059 PAYMENT AND TRANSFER OUT OF COURT— «»^/kk;a?-^(? injunction, when granted, 1693. retainer of, not affected by plaintiff's right to costs, or payment into Court,. 1529, 1818. And see Administrator — Executors. PETITIONS, 1624— 1630. amendment of, when allowed, and how effected, 1628, 1629. appeal from order made on, 1566, 1630 ; and see Appeals and Re- hearings. appeal, of, in case of appeal in Court of Chancery, 1571 — IS73 ! ^'^^ -"^^ Appeals and Rehearings. applications made by, 1605, 1606, 1624, 1625. compromise suit, application for, made by, 1605. costs on, 1625, 1626 ; and see COSTS. cour.se of, 1625. declaration of rights, not made on, 1627. definition of, 1604, 1624. different sorts of, 1625. disability, on behalf of persons under, 1625. evidence on, 1627. guardian ai/ ///«« appointed if respondent under disability, 125, 139, 1627. hearing of. 1627, 1628 ; and see Hearing. infant, on behalf of, by whom presented, 1625. infant respondent, appointment of guardian ad litem, for, 125, 1627. lunatic, against, when defended by his committee, 138. 2062 INDEX. VETITIOISS— continued. when by guardian ad lilem, 138. marriage of ward, for consent to, 1406, 1407. married woman, on behalf of, by whom presented, 1625. name and description of petitioner, statement of, 1625. next friend, when presented by, 1625. next friend for the purposes of the application, when presented by, 1625. order on, drawn up, how, 1628 ; discharge or variation of, 1630. payment out of court, application for, when made by, 1604, 1826. prayer of, 1626. representative of the estate appointed on, 164. service of, 1627, 1628 ; and see Service. setting down, 1627. special, 1625. stating part of, 1626. stop order, for, 1 716. time for service of, 1626, 1627. title of, 1625. amendment of, effect on affidavits sworn before alteration, 571, 572, 1627. statutory jurisdiction, under, 1625. unsound mind, person of, respondent to, appointment of guardian ad litem, for, 139, t627. application for, how made, and evidence in support, 139, 1627. PETITIONER, jurisdiction, resident out of the, security for costs, by, 21. PHYSICIAN, communication to, not privileged, 410. PLAINTIFF, abode of, demurrer for non-statement of, 292, 396. addition of, by amendment, 319, 321. answer, not of course, after, 321. discovery, bill of, not allowed in case of, 32T. hearing, not included, under order at, for addition of parties at, 321. alien, 41 — 46. alienage of, plea of, 46. Attorney General, on behalf of Crown, 3 — 12. birth-place of, when discovery as to, must be given, 3, 399. bankrupt, 47 — 52- bankruptcy of, motion for revivor or dismissal of bill, on, 51, 52, 512. after decree, for prosecution of suit or stay of proceedings, 513. order to carry on proceedings, in case of. 51, 52. plea of, 51. class suit, description of, in, 202, 294 ; necessary qualifications of, 202, n. (3) conflicting interests may be united in sole, 192, n. (3). corporations and joint-stock companies, 16 — 20. cross bill, in security for costs not required, for misdescription of, 293. death of, abatement on, 1580. when not an abatement, 1 595' 159^- death before decree, motion for revivor or dismissal of bill on, 510, 1593, '597- death of, no revivor where determination of interest total, 1591, 1592- who entitled to revive, on, 1583 ; effect of revivor, 1595. description of, statement of, 292 ; when not required, 293. in amended bill, 319, u. (4). omission of, how *"aken advantage of, 292. dominion of, over suit, until decree, 483, 485 ; in class suits, 196, 488. foreign state, government of, 13 — 15 ; and see Foreign Government. idiot, 67 — 70. idiocy of, plea of, 68, 596. INDEX. 2063 PLAINTIFF— ra»ft««fl/. infant, 52 — 67. interest, demurrer for want of, in, 269, 392. jurisdiction, person out of the, 20—32. lunatic, idiot, or of unsound mind, 67 — 70. \unzcy oi, pendente lite, supplemental order on, 1535, 1586. marriage of female, abatement un, 91. motion for revivor or dismissal of bill, on, 487, 488. revivor on, and who entitled to order, 1584, 1585. married woman, 70—103. name, plea of misdescription of, 292. name and address of, statement of, in bill, 292 ; when not required, 293. omission of, how taken advantage of, 292. harae and address of his solicitor, or agent, or of his own if acting in person, to be inserted at end of bill, 313, 314. indorsement of on proceedings and documents, 361, 362. ne exeat against, 1 740. pauper, 32 — 40. person of, demurrer to, 391 ; and see Demurrer. residence, without permanent, ordered to give .security for costs, 20, 21. striking out name of, 57, 319—321 ; and see Striking out name. PLEADINGS, admissions and confessions must he noticed in, 540, 541. decree and orders no longer recited in, 626. evidence not admitted of facts not noticed in, 537. exceptions, when pointed to general charge, 538. file, taking off, because scandalous, 481. POLICY OF THE LAW, admissions contrary to, not permitted, 534. POPISH RECUSANCE, no longer a disability, 40. POSITIVENESS, demurrer for want of, 294, 396 ; included in general demurrer, 421. POSSESSION, certainty required in bills for, and discovery of title deeds, 301, 302. chattel real, of, how alleged, 295, 296. POST, service of notice of the decree by, how authenticated, 347. POVERTY, executor, of, receiver not appointed in consequence of, 1756. except in case of husband of executrix, 1756- PRACTICE OF THE COURT, how regulated, i. deviations from, consents to, should be sanctioned by the Court, when given on behalf of infants, 59, 129. lunatics or persons of unsound mind, on behalf of, 69, 139. married women, on behalf of, 90. PRAYER OF BILL, 269, 270, 290, 303—313. alternative, when permitted, 309. amendment of, when leave given at hearing for, 308, 309, 331. demurrer for want of proper, 269, 393. form of, 269, 270. formal parties, in case of, 311, 312. general relief, for, effect of, 304, 307, 308, 393. defects in specific prayer, when supplied under, 303 — 307. injunction, for, 311, 312. 2064 INDEX. PRAYER OF BJLl,—canimMii. mistaken, redress given under, in case of charities, 8, 309. of infants, 58, 59, 309. ne exeat regno, for, not necessary, usually, 290, 313. process for, abolished, 290. provisional order, for, 312. receiver, for, necessary when appointment desired before decree, 176S. relief, for, addition of, to bill for discovery, not allowed, 324. specific relief, for, 269, 270. defect in, when supplied under prayer for general relief, 303, 313. waiver of penalty or forfeiture inserted in, 312. PRELIMINARY ACCOUNTS AND INQUIRIES, directed, when, 616. PRESCRIPTION, variance, effect of, in suit for right founded on, 545. PRESUMPTION OF LAW, double legacies, in cases of, 536, n. (3). insanity, in cases of, 536 ; lucid interval, when allegation of, 537. legitimacy, in cases of, 536. onus probandi reus, on party impugning, 536. PREVIOUS SETTLEMENT, effect on wife's equity to a settlement, 84. PRINCIPAL, agent, when not necessary party to principal suit, 157, 158. necessary party, when not, to bill by agent, 157. necessary party to suit for contribution, unless insolvent, 226. but plaintiff may elect then to make him a party, 226. surety, not necessary party to suit against, 223, 225. unless he has paid part of debt, 225. but owner of estate charged as collatery witness on the ground of, 595. qualified in the case of client, 406, 41 1, 412. secus, in the case of legal adviser, 408. does not cease on solicitor becoming interested, or his being struck off the rolls, 411. extends to counsels' briefs, how far, 406. case for counsel's opinion, when, 405, 406. communication with solicitor before dispute, when, 406, 407. agents between solicitor and client, 411. foreign legal agent, 411. representative of client, 411. solicitor subsequently becoming interested, 411. professional communications of any kind with legal adviser, 413. what it does not extend to, 409, 410, 411, 412. communications, by third parties to solicitor, 409. 2Q68 INDEX. PROFESSIONAL CONFIDENCE— ^o«/;»af effect of, on right to sue at law, 70 ; on wife's reversion, 98. wife who has obtained, sued without husband, 140. PROTESTATION, demurrer in, 419. PROVINCES, boundaries of colonial, Attorney-General necessary party to suit as to, 106. division of England into, judicially noticed, 386. PROVISIONAL ORDER, prayer for, 312. PUBLIC COMPANY. .?« Company (Public). PUBLIC INTEREST, demurrer that discovery would be against, 415, 416. PUBLIC OFFICER (OF JOINT-STOCK COMPANY), change of, new name, how substituted, 19, 20. death of plaintiff, no abatement, 511. dismissal of bill upon, 511. PUBLIC RECORD OFFICE, edifice copy of record in, provable as exhibit at hearing, 561. PUNISHMENT, demurrer to discovery that would expose defendant tn, 387. discovery that would subject defendant to, not required, 398. married woman need not give discovery that would subject husband to, 398. production, objection to, on ground that it would expose party to, 1857. PURCHASE FOR VALUABLE CONSIDERATION, WITHOUT NOTICE, demurrer on the ground of, 403. onus probandi\x\ cases of, 535. PURCHASE MONEY, and see Master's office. incumbrances, payment off of, out of, 1370. investment of, 1354. , lien of purchaser on, till conveyance, 1370. payment into Court, order for, how obtained, 1353. who may appear on application, 1354. several purchasers may join in one application, I3S4- but joint purchasers cannot sever, 1354. private contract, where sale by, 1 163. payment in, order for, on default of purchaser, 1372. payment in, without prejudice, 1354; application for, how made, 1354. payment out of, notice to purchaser of application for, 1370, 1371. appearance of purchaser on, costs of, when allowed, 1371. restraint on, in favor of purchaser, 1370. effect given to, how, 1370; discharged, how, 1371. return of, on discharge of purchaser, 1354. PURCHASER, co-plaintiff with settlor, should not be, in suit to avoid settlement, 192. death of, parties to suit fjr specific performance, in case of, 238. different parts of estate from beneficiaries, of, legal estate being outstand- ing, whether necessary parties, 17S, 179. judgment-creditors of, not necessary parties to bill against, for specific per- formance. 234. mortga'^ee, fn>m, necessary party to suit to set purchase aside, 234. mortgagor, from, account directed against, at instance of mortgagee, though not prayed, 305, 306. 2070 INDEX. P U V.C'HAS'E'R— continued. payment into Court by, when directed, 1812 — 1814, 1823 ; and see PuR« chase-Money. pendente lite, not necessary party, unless conveyance required, 236, 1857, 1858. made party by supplemental proceedings, 236, 1857. receiver at instance of, 1754- several, of distinct lots, bill for specific performance against multifarious, 276. bill by multifarious, 284, 285. subject to charges, receiver, when appointed against, 1739. rURCHA.SER (UNDER DECREE), appeal by, 1557, 1558. costs, of inquiry into title, when entitled to or liable for, 1352, 1353. paid out of what fund, 1353. costs of on opening biddings, 1159; special costs, 1159. default of, remedy for, 1372. order for payment of purchase-money, 1372. resale, 1371, 1372. See Resale. delivery of abstract to, how compelled See Master's Office. discharge of, when directed, 1353, 1372. application for, how made, 1354; resale, must be before, 1354. error, where material in the proceedings, 132. opening biddings, on, 1155. purchase inequitable, where, 1353. return of purchase-money or deposit upon, 1354. title, bad or doubtful, in case of, 1353. heir of, allowed benefit of contract, 1372. lien, of, on purchase-money until conveyance, 1369, 1370. motion by, 1608. representatives of, sale not enforced against, without suit, 1372. resale by, before certificate absolute, payment of profit made on, 1373, 1374. %ubstitutiort ol, 1373, 1374. application for, how made, evidence, and costs, 1374. not necessary after certificate has become absolute, 1374. death of purchaser before payment, in case of, 1374. title deeds, delivery of, to, 1369. , lots when sale in, 1369. PURPRESTURE, definition of, 1661. injunction against, l66i, 1662. QUAKER, answer of, how taken, 467. QUEEN, Attorney-General, sues by, 4; is sued by, 105, 106, 107. bill, when addressed to, 292. costs, entitled to, when, 7, 8. not liable for, 7, 8. exceptions, revenue cases, 8. petition of right, 13, u. (4). Court, may sue in any, 3. law or equity, may sue at, 3. Solicitor-General, when represented by, no. suits against, 105 — no; on behalf of, 3 — 12. waste, when restrained at suit of, 3. And see Attorney-General — Crown — Information. QUESTION OF FACT. See Fact (Question of). QUO WARRANTO, demurrer to discovery which would expose defendant to, 402. INDEX. 2071 RAILWAY TOLLS, receiver of, appointed, 1764. REAL ESTATE, administration of, not ordered in single creditor's suit for his own debt, 194. accounts of, form of. See Master's Office. legacies cliarged on, legatees necessary parties, 183, 184. legacy charged on, administration decree on application of one legatee, 177, 183, 184, 342. revivor by common order, of suit relati.ig to, 1586. sale of, proceeds of, administration decree on application of one person interested in, 177, 183, 184, 342. sequestration, effect of, on, 658. RE-AMENDMENT OF BILL. See Amendment of Bill. RE-BUILD, forfeiture on breach of covenant not to, relieved against, 1688. RECEIPT, exhibit, provable as, at hearing, 516. secuSf if cross-examination upon admissible, 516. husband or his agent, by, a reduction into possession, 94. RECEIVER, 1749— 1801. abatement, effect of, on, 1594, accounts of, 1788 — 1794. allowance, of report on, 1789. form of, 1788. leaving, 1788; how compelled, 1790. neglect in leaving, or attending to pass, penalty for, 1789, 1790, 1792. warrant to proceed on, 1789. vouched, how, 1789; unvouched payments disallowed, 1789. accumulating fund, appointment for purpose of, 1759. action, defence of, by, leave necessary for, 1785. costs of unsuccessful, allowed though not sanctioned, 1786. answer, when appointed before, 1768. answer, treated as affidavit, on application for, 1769. application for, 1769, 1770: by whom made, 1768; how made, 1769. application relating to, by whom to be made, 1788 ; how made, 1788. appointment, mode and effect of, 1768 — 1779- discretionary in Court, 1749; when ordered, 1749— 1763. who appointed, 1766 — 1768. person who should check receiver, not appointed, 1 766. proceedings by person prejudiced, by, 1778. attornment, direction for in order appointing, 1774. how enforced, 1776— 1778 ; and see Attornment. balance of, payment into Court of, 1790 ; how enforced, 1790. must be made, though no order for payment, 1789. neglect in making, penalty for, 1 791. barrister may be, 1 767. benefit of, who entitled to, 1752. Canada, when appointed of property in, 1765. canal tolls, when appointed of, 1761, 1765. canonry, when appointed of, 1764. China, when appointed of property in, 1765. consequences of appointment of, 1776. costs of, 1511, 1775, 1782. 1789. 1796; and j«? Costs. creditor of, for goods supplied for the estate, payment of, 1794. creditor's .suit, appointed in, where sale clearly necessary, 1754. Crown accountant objectionable as receiver, 1767. danger to the estate, when appointed on ground of, 1756—1758- death of, passing account after, 1792. 2072 INDEX. RECEIVER— i-oniinued. debt, sanction of Judge necessary, putting in suit by, 1786. decree, superseded by, unless expressly continued, _I796. deduction of costs of unsuccessful application against, from balance of, when permitted, 1782. definition of, 1749. delivery of securities for personal property, direction for in order, 1774. delivery of possession by party to, how enforced, 1776. Demerara, when appointed, of pjoperty in, 1765. discharge of, 1794 — 1796. application for, how made, and service of notice thereof, 1796. application, on his own, grounds for, I794' bankruptcy, on, 1795. ceser of plaintiff's right on, l8oi. ^jT/a;'/^ application of party at whose instance appointed, not ordered on, 1795. order, form of, 1796- new tiustees, on appointment of, 1795- unnecessary, when, I795- dismissal of bill, account must be passed, notwithstanding, 1790. distress by, in whose name made, 1783. leave to make necessary, and how obtained, 1783. disturbance of possession of, a contempt, 1777, 1778. sheriff, proceedings, when property taken by, 1778. dock tolls, when appointed of, 1 765. duties of, 1785, 1786. effect of appointment of, 1776- ejectment against, inquiry whether it should be defended, 1779. ilegif, when appointed against cieditor in possession under, 1753, n. (i). 'England, when appointed of property out of, 1765. equitable claims, usually appointed on behalf of person having, 1750 ; without prejudice to prior legal estates, 1751. eviction of tenants by, leave necessary for, 1783. evidence in support of application for, 1 769. ex farte, not appointed, unless party has absconded, 1769. executors, when appointed against, 1756. insanity of husband of executrix, on, 1756- insolvency of, 1 756' jurisdiction, out of the, 1756- misconduct or neglect of, 1756. poverty, not appointed on mere ground of, 1756. except in case of husband of executrix, 1757. expenditure by, sanction of Judge necessary to, when, 17S3. failure of banker, when charged with loss occasioned by, 1787. fellowship, when appointed of, 1764. fieri facias, writ of, not issued against, for balance, 1790. foreign Court, appointment of, pending litigation in, 1761. fraud, when appointed in cases of, 1756. half-pay, not appointed of, 1764. hearing, appointment of. at or after, without prayer, 1768. heirlooms, may be appointed of, 1765. implied trusts, appointment in the case of, 1755, 1756, 1758. inadequacy of price, when appointed in case of, 1755. India, when appointed of property in, 1765. infant, appointment in case of, 1391, 1763. injunction to restrain proceedings against, (j6o. interest on incumbrances, how kept down by, 1787. interest on balance, how and when charged with, 1790, 1791. Ireland, when appointed of property in, 1765. issue, when directed, on application for, 675. Italy, when appointed of properly in, 1765. INDEX. 2073 f RECEIVER— fo«ft-««^flr. joint-tenants, when appointed in ca'se of, 1761. judgment creditor, when ordered to refund payment mide, by, 1779. landlord, riglits of, how effected by appointment of, 1779. leases by, sanction of Court required to, 1784, 1785 ; how obtained, 1784, 17-5- legal estate, when granted against, 1754, 1786, 1787. legal right, not appointed on application of person tiaving, 1759' legil title, not appointed where, in dispute, 1759. except under special circumstances, 1759, 1760. liabilities of, 17S7, 178S. losses, when charged with, 1787, 17S8. market tolls, when appointed of, 1764. mine, when appointed in case of, 1761. misjoinder, granted pending litigation, notwithstanding, 253. mode of appointment, 1774 — 1776. when order directs a proper person to be appointed, 1774 — ^Ti^- evidence, 1774. mortgagee in possession, not usually appointed against, 1751 — 1753, mortgagee, when appointed at instance of second, 1750. absconding mortgagor, against, 1752. mortgagor out of the jurisdiction, when appointed against, 117, 1752- motion, application for, usually made by, 1769. New South Wales, when appointed of property in, 1765. notice of motion for, 176J ; amendment of bill, a waiver of, 338, 1623, occupation rent, party when charged with, 1776, n. (5). tenant, when charged with, 1777. office, of profits of, 1764. order for, form of, 1773. outstanding estate, how got in by, 1786. Parliament, member of, objectionable as, 1776- p.irochial rates in fiUurOy not appointed of, 1765. partner, retired or solvent, when appointed, 1765. partnership, when appointed, in cases of, 1 761 — 1 763. continuance of sought not granted, if, 1762. death of co-partner, in case of, 1763 ; of all partners, 1763. disputed not granted where, 1762. party to suit, when appointed, 1766. special leave necessary, and how obtained, 1766. payment into Court by, may be made at any time, 1789- peer, objectionable as, 1767. pendente lite, bill for, not dismissed for want of prosecution, 508. costs of, 508. pension, when appointed of, 1764. not appointed, if granted to support the dignity of a peer, 1755. or for past services, I764. possession of person having prior legal estate, not [usually granted against 1753- powers of 1782 — 1784. prayer necessary when appointment before decree, 1768. pro confesso, appointment of, when hill taken, 378. no proceedings to be taken by, without leave, 378. property over which appointed, 1764 — 1766. /«/j« S'^' churchwardens, on change of, 1591, 1592. conduct of cause, effect of revivor on, 1584, 1585- contempt, process of, issue and resumption of, after, 1595- costs, foi", not usually allowed, 1590. whether abatement on death of party to pay, or to receive costs, 1590- exceptions to rule, 1591. 20.S0 INDEX. 'RTJVIM OK— continued. anything remaining to be performed, 1591. death of one of several defendants to whom costs payable, 1591. estate or fund, when costs payable out of, 1591. taxation completed or postponed by arrangement, 1590. creditor's suit, of; when not necessary, 1597. custody, motion fur revivor or dischar^^e by person in, 1594- death of corporation sole, on, 17, 18, 1584. death of defendant, effect of revivor after, 1595* against successor on determination of interest, 1591, 1592- motion for revivor or dismissal on, 511, 1597, several defendants, in case of, 1591. death of husband, when not ne>.essary on, 91, 1597- death of joint tenant, not necessary on, 1596, 1597. death of party, when not necessary on, 1596, 1597. death of personal representative, when not necessary on, 1596. death of plaintiff, none when determination of interest total, 1591, I595' effect of revivor after, 1596, 1597. death of sole or co-plaintiff, motion for revivor or dismissal of bill on. 510, 511, 1583, 1597. death of trustee, when not necessary on, 1 596, 1597- decree, after, who entitled to, 1584. creditor's suit, in, on death of plaintiff, 1585. decree, before, who entitled to. 1583, 1584. defendant entitled to revive after decree, 510, 511, 1584- but should give notice, 1584. defendant not entitled to revive before decree, 1584. discharge of order for, grounds for, 1581, 1592. application for, by whom and how made, 1580, 1592. time for making, 1592. injunction, motion for revivor or dissolution of, in cases of, I594> '7°5i I7°9- jurisdiction, by person out of, security for costs, on, 22, 23, 1589* liability of party added by, 1585. Limitations, Statute of, how far a bar to, 1593. waiver of objection on account of, 1593- lunacy of plaintiff on, 67. marriage of female plaintiff on, go, 1584. marriage of female sole plaintiff, motion for revivor or dismissal on, 511. motion for, or dismissal of bill, before decree, 51O) "• (3)- necessary, when, 1580. order far, 1585 — 1587. application for, how made, 1581 ; evidence not required on, 1581. form of, against personal representatives of accounting party, 1588. time, right to, not barred by mere lapse of, 1588. personal representative, when there is no, 1589. receiver, motion for revivor, or discharge of, 1594- representative of the estate, against, when necessary, 1589' sequestration, motion for revivor or removal of sequestration, 661, 662. service of order for, 1581, 1582; and j^ef Service. special case, of proceedings by, 1589, 1869, 1870. title of cause, alteration of, upon, 1583- RIENS PER DESCENT, creditor's action restrained after administration decree, though plea of, 1633. RIFLE RANGE, use of, when restrained, 1664. RIGHTS, bill claiming same by different titles, not multifariou.s, 283. distinct, bill by several plaintiffs claiming, multifarious, 283. general, bill by several plaintiffs, claiming, when not multifarious, 284. bill to establish, against defendants distinctly interested, when not multifarious, 281. INDEX. 2081 RIVER, , breach of covenant to keep bank of, in repair, when restrained, 1683. injury of bank of, restrained, 1664. ROAD BOOK, piracy of, restrained, 1670. ROMAN CATHOLIC CHARITIES, provision as to, 1901. SALE, and see Master's office. bill to aside different sales by same vendors to different purchasers, multifarious, 276. foreclo-iure, when directed instead of, 238. foreclosure, not ordered under prayer for sale, 304. incumbered estate, parties to suit for sale of, and execution of trusts of surplus, 173. infant, of land of, not directed under ordinary jurisdiction because beneficial, 131, 132. foreclosure, when directed, instead of, 130, 131. partition suit, to raise costs of, 711, n. (3). married woman, of land of, to raise costs of partition, 711, n. (3). partition suit, to raise costs of, 711, n. (3). power of, renouncing executors who have, not necessary parties, 209. SALE (UNDER DECREE OR ORDER), and jt'^ Master's office. cestui que trust, not represented by trustees on, 181, 182. conveyance, settlement and execution of, 1356 — 1366. default by purchaser, remedy for, 1371 1372. ^ return of deposit on discharge of purchaser, 1354. disch.arge of purchaser, when permitted, 1353, 1354, 1372. error, not invalidated by, 131, 132. Frauds, Statute of, not within, 1372. irregularity, not invalidated by, 131, 132, marrie.l wom.iii, binding on, 149, 150. opening biddings, on,'lI50 — H02. after sale by private contract, II53. 1163. by sealed tender, 1153 ; and see BIDDINGS (Opening). ■ payment in of purchase-money on, 1354, I163, 1S13 ; and j-^s PURCHASE Money. possession, when purchaser entitled to, 1355- private CO ur.ict, proceedings on, 1161, 1162. conilitional contract, 1162 ; confirmation of, how obtained, 1162. raising money by, 1382 —1333 ; and see RAISING Money (by Sale or Moktgage). sequestration, when ordered under, 655, 656 ; application for, how made, 655. 656. substitution of another purchaser, when allowed, 1373. title deeds, delivery of, to purchaser, 1369 ; lots, when sale in, 1369, 1370. S/.NCTION OF THE COURT, institution of suit, when necessary for, 257, 258. al«ence of, usually not aground of objection by defendant to suit proceed- ing, 258. application for, and necessary evidence, 257, 258. required, to consent to deviation from ordinary procedure, given by next friend of infant, 59 ; of person of unsound mind, 68, 69 ; of married woman, 90. by committee of lunatic, 68, 69, 140. by guardian ad litem of infant, 129 ; or of person of unsound mind, 140. trustees to proceedings by, when necessary, 1380 ; how obtained, 1380. 2082 INDEX. SCANDAL, 285—287. allegation of general malice or personal hostility unconnected with acts complained of, scandalous, 286. affidavit to be used in Chambers, in, remedy for 573 ; to be used in Court, 572. answer in, 459, u. (4). Chambers, in proceedings at, remedy for, 572. . COhtemnor may apply for removal of, 1723. costs occasioned by, 289. definition of, 285. demurrer, not a ground for, 287. file, taking pleadings and documents off, for, 480, 481. imputation of corrupt or vindictive motives in suit to remove trustee, not, 286. injunction not granted, if any in bill, 1699. material, anything which is, not scandalous, 285. objection for, may be taken by the Court, 288. how taken, 288. pauper, costs of, when introduced by, 38. statement of particular immoral acts provable under general charge scandalous, 286. SCANDALOUS WORDS, against Court or its process, punishment for 667. SCHEDULE, affidavit to, reference to, 574. alterations in, how authenticated, 574. answer, to, when used, in aid of defendant's own case, 454. addition of, by amendment, when permitted, 479. impertinent, when, 454. paper on which written, 465. signature of defendant to, 460, 467 ; of official to, 467. SCHEME, Chambers, settlement of, at, 1889. SCIENTIFIC PERSON, assistance of, how obtained, 614 ; and see Expert. SCIRE FACIAS, nature of, and proceedings by, 1 793- SCOTCH LA'V AGENT, communication with, privileged, 411. SCRIVENER, communication to, privileged, 410, SEAL (COMMON, OF CORPORATION AGGREGATE), answer put in under, 114, 460, 461, 466. proceedings where custodian refuses to affix it, 114. thirty years old, does not prove itself, semble, 554. SECOND SUIT (FOR SAME MATTER), dismissal of, on continued neglect to pay costs of former suit, 489, 490. stay of, till payment of costs of former suit, 489, 490, 509. pauper, when suit by, 35. SECONDARY EVIDENCE, documents, of, when admitted in Equity, 558, 559 ; at law, 558. will, of contents of, when admitted, 557. SECRETS, disclosure of, when restrained, 1677. SECURITIES, collateral, surety, when not necessary party to suit as to, 225. INDEX. 2083. SECURITIES— co»i{„ue^, delivery up of, costs of suit for, 1476; 1488, 1489. suit to set aside, offer by plaintiff, to pay what is due, necessary in, 311. SECURITY, receivers and managers, how taken from, 1772. SECURITY FOR COSTS. See Costs (Security for). SEISIN, bill, how alleged in, 295, 296. of things manurable or immanurable, 296. SEPARATE ACCOUNT, application to deal with fund standing to, how made, 1826. costs, when fatid paid to, 1535. , application for payment out when only applicant interested, of, 1829. evidence on, application to deal with fund, 1827, 1828. fund, when paid to, 1535, 1824. married woman, carrying over to, when directed in case of, 73, 1826. mistake in carriage to, bill of review does not lie for, 1825. service of application to deal with fund standing to, 1626, 1627, 1827. SEPARATE ESTATE, aniwer, bound by joint, of wife and her husband, 147. or her separate answer, 147. charged, how, 148, 149. contract, fraud, or breach of trust, by, 149. testamentary charge of debts, by, 148. costs of, wife's suit liable to, 90. leave to apply for payment of costs out of, 149. discovery as to, when married woman bound to give, 146. examination, married woman may dispose of, without, 79. except to husband, 79. hu-iband may be sued by wife in respect of, 88 ; may sue wife, 88, 140. effect of his suit, 140, n. (6). husband should not be co-plaintiff or next friend in wife's suit for, 87, 88. plea of previous suit by husband and wife, bad, to suit for, 87. suit relating to, prosecuted against wife alone, though husband a co- defendant, but out of the jurisdiction, 140. SEPARATIST, affirmation of, how taken, 576. answer of, how taken, 460. SEQUESTRATION, abatement, effect of, on, 661. motion for revivor or renewal of sequestration, 662. beneficed clerk, against, 652. choses in action, effect of, upon, 652. injunction or restraining order, for breach of, 1 71 3. costs of, 663. death of contemner, effect of, on, 661. decree or order, for non-obedience to, 649 — 663. irregularity in attachment, not issued if any, 649, 650. discharge of, 661. dower of conlemnor's widow, not prejudiced by, 661, 662. equerry, salary of, not taken under, 653. examination, pro interesse sua, in case of, 659 — 66i ; and see Interesse St;o (Examination Pro). executiim oJ, 652 . form of, 652. fraudulent alienation, effect of sequestration, not prevented by, 656. half-pay, not taken under, 653. 2084 INDEX. SEQUESTRATION— fo»/rK«freach of, 1 713. receiver, effect of appointment of, on, 661, 1776. return to, 652 ; not filed, 652. revivor of, 661, 662. sale under, when ordered, 654 ; application for, how made, 655. second, ho^f obtained, 652. SEQUESTRATOKS, abuse of power by, remedy for, 663. accountable for receipts, 656. accountable persons, should be, 652. articles in possession of contemner, power of, to seize, 653 — 657, assistance, writ of, when issued to be put in possession, 657. attornment by tenants to, 656, '657 ; how compelled, 656. disturbance of possession of, a contempt of Court, 657. injunction to restrain proceedings. against, 660. let lands, power to, when given, 656. number of commissioners, 651. powers of, over personal estate, 654; over real estate, 655, 656. professsional persons, commissioners need not be, 651, n. (12). SERVICE, absconding defendant out of the jurisdiction, on, 358. affidavit of, 577. decree or order, of copy of, 648. demurrer, of order to set" down, 428. irregularity in, effect of, 576, 1615. notice of rrotion, of, 1615. appeal motions of, 1575- decree, for, of, 520. dismissal of bill for want of prosecution, of, 503- time for filing, 1615. order nisi^ of, 161 1. petition, of, 1628; time for filing, 1616. amended bill, of, 353, n. (5) ; clerical error, after rectification of, 325, Li. (2), amendment of bill, of order for, 334. bill, of copy of the, how effected, 350, 351. affidavit, when accompanied by, 316, 351. dwelling-house, what is, for purposes ol, 351. subpana, has the same effect as service of, 351. Sunday, irregular if on, 351. company, public, on, how effected, 352, 353. corporation aggregate, of bill upon, how effected, 352, 353. ^ decree or order, of, on, 642. foreign corporation, having office within the jurisdiction, on, 1614. course, of order of, 1607. decree or order, of, 378, 379, 641 — 642. INDEX. 2085 S^KVICE— continued. indorsement on, copy for, 642 ; and see Indorsement. decree or order, of appointment to pass, 631. witness of, of order to set down, 597, 598. examination de bene esse, of order to talce, 590, 591. exhibits, of order to prove, at the hearing, 563. further hearing after trial, of order to set down cause after, 697. s;uardian ad litem, of notice of motion by plaintiff to appoint, 125, 139. hours for, when personal service not required, 364, 365. husband and wife, of bill on, 352. husband out of the jurisdiction, of bill on, 360. husband, of notice of decree on, 342. infant, of copy of the bill on, 352 ; out of the jurisdiction, 360. of notice of the decree on, application for directions as to, and evidence, 342 ; how effected, 346. injunction, of notice of motion for, 1613, 1695. minutes of order for, of, 1701. notice of motion to dissolve, of, 1703 ; in interpleader suits, 1703. writ of, of, 1 702. interim order, of, 1702. jurisdiction, out of the, 358 — 361. bill, of, when allowed, 118, 120, 358, 359. application for order, how made, 360. evidence, prima facie, only, necessary on, 360. discretionary with Court, 360. indorsement, in case of, 349, 361 . irregularity, how set aside for, 361. leave for, when refused after decree, 118. order for, fixes times for answer, 361. served with bill, must be, 360. service, how effected, 360. notice of the decree, of, 342 ; order for, how obtained, and evidence, 346. notice of motion, of, 1614; application for leave for, how made, 1613, 1614. how service effected, 1614. notice of motion for decree, of, 517 ; leave for, how obtained, 517, 518. time for filing defendant's affidavits, when leave given, 517, 518. petition, of, 1626 ; application for leave for, how made, 1626, 1627. service, how effected, 1627. replication, of notice of filing, 525. married woman, of copy of the bill on, 352 ; where formal defendant, of notice of the decree on, 342. minutes, of, appointment to settle, 629. next friend, of order appointing new, of infant, 63 ; of married woman, 90. notice, of, when personal service not required, 365, 366. notice of the decree, personal, necessary, unless dispensed with, 342. post, service of, by, how authenticated, 346. special service, when directed, 346. application for order for, how made, 346. notice of motion, of, 1613, 1614. special leave for, when necessary, l6ii, 1695. notice of motion for decree, of, 516, 517 ; extension of time for, 516, 517, 518- ParUament, on Member of, 351, 352. dwelling-house, what is, for purposes of, 351. party acting in pei'son, on, how effected, 365. personal, of proceedings, when necessary, 361. petition, of, 1626. personal, when necessary, 1626. prisoner, of copy of the bill upon, 351, n. (6). 108 2086 INDEX. S'EKYIC^,— continued. fro confesso decree, of, 378, 379. application to dispense with, when made, 379. proceedings, not requiring personal service, of, 361. replication, of notice of filing, 525 , and see Notice. restraining order, of, 1702. revivor, of order of, on whom necessary, 1581 ; how effected, 1581. separate account, of application to deal with fund standing to, 1626, 1827, 1828. solicitor, on, how effected, 362, 363 ; hours for, 364, 365. stop order, of petition for, 1718 ; of notice to deal with fund after, 1719. subpcena ad tesHJicandn?n, of, 564, 579. subpcena duces tecum, of, 564, 579. substituted, principles on which directed, 365, 356 ; instances of, 356, 357. bill, of, 355—357. action, to restrain, 388, 389. agent on, 356. application for leave for, how made, and evidence, 358. cross bill, of, not allowed, 357. order for, form of, and service of, 358. decree or order, of, when permitted, 643. effected, how, 643 ; order for, how obtained, 643. notice of the decree, of, 346 ; application for order for, how made, 346. notice of motion, of, 1613 ; application for order for, how made, 161 3. petition, of, 1626 ; application for leave for, how made, 1626. replication, of notice of filing, 525. revivor, of order for, 1581. amend bill, for leave to, 329. to enlarge time for amending, or for obtaining order to amend, 334. answer, to enlarge time for, 464. hours for effecting, 364, 365. unsound mind, of bill on person of, 352. notice of the decree, of, 342 ; effected how, 346. application for direction as to, how made, and evidence, 342. SETTING DOWN, cause for hearing, 599 — 602. disclaimer, upon, 437. effected, how, 600, 601. time for, 599 — 601. cross causes, in case of, 609. demurrer, 428. neglect, consequences of, 427 ; relief against, 428. vacations, not reckoned in, 428. demurrer by witness, 597, 598. demuiTer, 481, 482. further hearing, after trial of issue or question of fact, 697, 698. injunction, motion for, turned into motion for decree, 1620, 1699. petitions, 1627. special case, 1870. Court, before what, 1356. effected, how, 1870. leave for, when required, 1870. application for, how made, 1870 ; evidence in support, and notice of. 1870. what parties bound, on leave being given to, 1869. SETTLED ACCOUNT. See Stated Account. SETTLEMENT, affidavit of none, form of, and when required, 76. rectification of, costs of suits for, 1538. suit to avoid, parties to, 192. INDEX. 2087 SETTLEMENT (EQUITY TO), 72—87. adultery of wife, effect of, on, 86. ward of Court, married clandestinely, in case of, 86. amount settled, 80, 81. assignee of husband, attaches against, 83 ; except in case of life estate, 83. assignment by husband of wife's equitable chose in action, not lost by, 97, 98. attaches, when, 72 ; when not, 73. children, is for benefit of, 84 ; does not survive to them, 85. unless contract or order for settlement in her lifetime, 85. co-plaintiff, not lost by joinder of husband as, 88. death of husband or wife before settlement approved, effect of, 86. desertion of husband, forfeited by groundless, 82. foreign domicile, when it attaches in case of married woman having, 76. forfeited, how, 82, 83. husband only having right to sue, does not attach in case of, 73. husband maintaining wife and children usually allowed whole income, 80, 81. if he does not do so, whole or portion settled, 80, 81. husband's trick, not defeated by, 80, 81. misconduct of wife, when forfeited by, 83, 86. modern adoption, not of, 73. raised, how, 54. settlement directed on refusal of consent to payment to husband, 79. form of, 87 ; nature of, 81. order itself, when made by, 81. settlement, pi'evious, effect of, on, 84. survivorship, distinct from right by, 73. waived, how and when, 72 — 81, 85. may be at any time beforfe settlement finally ordered, 85 ; and see Exami- nation (of Married Woman). SETTLOR, should not be co-plaintiff with purchaser in suit to avoid settlement, 192. SHAREHOLDER, "* joint-stock company, in, when one may sue on behalf of himself and the others, 18 — 19, 196 — 202. when one may be sued on behalf of others, 228 — 231. And see Class — ^Joint-Stock Company. SHARES, in unincorporated joint-stock company, assignor of shares in, when a neces- sary party, 159. SHERIFF, disturbance of possession of receiver by, proceedings in case of, 1 778. ne exeat, execution of writ of, by, 1 744. SHIP, crew, one of, may sue for self and others for prize-money, when, 196. improper employment of, restrained, i68o. indorsement of certificate of registry restrained, when, 1680. transfer of share in, injunction against, i68o. SHIP-OWNER, affidavit accompanying bill not necessary, 314. SIGNATURE, agreement relating to land, to allegation of, not necessary, 297. Attorney-General, of, to answer, no, 461. Attorney-General, of, to information, and amended information, 317. how obtained, 31 7. addition of, by amendment, when permitted, 479. attestation of, when answer put in without oath, 462. place of, 466. 2088 INDEX. SIGNATURE— coniinued. defendant, of, to disclaimer, 435, 436 ; attestation of, when put in without oath, 435, 436. defendant, of, to schedule, to answer, 466, 467. deponent, of, to affidavit, 575' examiner, of, to depositions, 582. Judge of Superior Court, of, judicially noticed, 548. official, of, to affidavit, 575. to answer, 466, 467 ; to schedule to answer, 466, 467. solicitor, of, to notices of motion, 161 1. pauper, to proceedings on behalf of, 37, 161 1, 1625. SIMONY, demurrer, because discovery would expose defendant to penalty of, 397, 398. SOLICITOR, agent, when acting as, to write or print principal's name and place of business on writs and proceedings left at Record and Writ Clerks' office, 361, 362. amended bill, service upon, of, 353. arrest, privileged from, when, 667. authority of, what sufficient to defend, 380 ; to sue, 254. certificate of, to information, 317. costs when made payable to, 1509. documents in possession of, considered to be in party's own, 452, 1848. guardian ad liUm, appointment of, as, on application of plaintiff, 125, 139, 140. hearing, penalty for non-attendance at, 520, 609. infant, of, filing bill on behalf of, without next friend, liability for costs, 54. when he may act for next friend and defendants, 59. name, place of business, and address for service of, to be placed on writs ancl other proceedings left at Record and Writ Clerks' Office, 361, 362. ne exeat, when granted against, 1733, 1739, 1740- payment out of Court of small sum, to, on undertaking to apply, 1831. pauper, assignment of, to, 36 ; may not refuse to act, 37. person not a party, of, service of proceedings upon, 1614, 1615. professional confidence, application of the rule as to, to, 408 — 413 ; and see Professional Confidence. receiver, solicitor in cause not appointed, 1766. retainer of, what is sufficient, 254, 380. revivor, service of order for, on, 1 58 1. service of proceedings on, how effected, 365 ; hours for service, 364, 365. signature of, to notices of motion, 161 1. proceedings on behalf of pauper, to, 37, 1611, 1625. other parties, when he acts for, 15 16. partner, of, right , of, to costs, 1 5 16. profit costs not allowed, 1516; secus, where special authority, 15 16. SOLICITOR AND CLIENT, communications between, how far privileged, 406, 407, 408 ; and see Pro- fessional Confidence. taxation of costs as between, 1538, 1541 — 1543. SOLICITOR-GENERAL, Crown sues on behalf of, when, 4. defendant, when made, no. SOVEREIGN (FOREIGN). See Foreign Government. SPEAKING DEMURRER, definition of, 422 ; and j«^Demurrer INDEX. 2089 SPECIAL CASE, 1864—1874. amendment of, 1868, 1869, 1870 ; and «f Amendment of Special Case. appeals and reheaiings of orders on, 1S72. appearance to, entry of, 1867, 1868. entry of, after amendment, i868. parties bound by, 1869. plaintiff cannot enter for defendant, 1868. appropriate, when, 2, 1864. belief, grounds for statement as to, must be shown, 1871. class, practice as to plaintiff representing, not applicable to, 1866, 1S57. committee of lunatic, concurrence of, in, 1864. costs in proceedings by, 1873. documents, identification of, in proceedings by, 1873. engrossment of, 1867. enrolment of order on, 1872. filing and notice of, 1867. form of, 1867. future rights cannot be declared in proceeding on, 1872. guardian, special, of infant or person of unsound mind, appointment of, 1865; application for, how made, and service, 1866. statement of, in case, 1866. hearing of, powers of Court at, 1871, husband, concurrence of, in, 1865. idiot, concurrence of, in, 1865. infant, when bound by, 1869 ; concurrence of, in, 59, 1866. lis pendens, registrary of, as, 1868. lunatic, when bound by, 1869, concurrence of, in, 1865. married woman, when bound by, 1869 ; concurrence of, in, 1865. next friend of married woman, when necessary in proceedings by, 1866. office-copy of, by whom taken, 1867. omitted, material facts, recital of, in order, 1 87 1, order on, how drawn up, 1872. papers for use of Court at hearing, 1870. parties to, 1866. preparation and settlement of, 1867. procedure on, general, 1874. protection afforded trustees by order on, 1872. refusal of Court to decide in proceedings by, instances of, 1872. representative of the estate, when appointed for, 163. review, of orders on, 1872. revivor of proceedings by, 1590, 1869,, 1871. setting down, 1870, 1871 ; and see Setting Down. signature of counsel to, 1867. statements of, 1867. title of, 1867. unsound mind, person of, concurrence of, in, 1865, 1866. SPECIALTY, creditor, personal representative necessary party to suit by, 236. SPECIFIC PERFORMANCE, advance of suit for, when directed, 607. class suit, decreed in, 200, 201, costs in suits for, 6i8, 1488 — 1500 ; and see Costs. cross bill when decreed without, 305, n. (2), 310. damage, special must be shown, 677. election between suit and action, in cases of, 513. infant not decreed at instance of, 189. inquiry into management of property, not directed under prayer for general relief in suit for, 306. interlocutory injunction, not granted where it would not be decreed, 1689. lots, bill by purchasers of several multifarious, 284. 2090 INDEX. SPECIFIC PERFORMANC'E— continued, ne exeat, when granted in, 1733. not if applicant's equity doubtful, 1735. or defendant has been held to bail for the same demand, 1 735- amount for which writ marked, 1743. one- witness, decree for, when made on evidence of, 532, 533. parol agreement, of, when decreed, 533. parol variation, not decreed, where proved, 305. parties to suits to, 154, 156, 157, 180, i8g, 190, 234, 238, 239, 246, 247. agent or auctioneer not necessary, 157, 246, 247. cestui que trusts, when necessary to suit by trustee, 180. practice where they are numerous, 180. concurrence, persons whose is required, 189, 190. contract, parties to, usually only necessary parties to suit, 189. covenants, in suit for the performance of, 154. death of purchaser, in case of, 238, 239. judgment creditors of purchaser not necessary to bill against him, 234. remaindeiTnen not necessary, 220. sub-contract, in cases of 156, 234. property of purchaser, discovery as to, when compellable in suit for, 448. receiver when appointed in suit for, I754i I763- rents and profits, account of, not directed under prayer for, 305. staying proceedings pending appeal in suit for, 1563, 1564- title, inquiry as to, in suit for, 616 — 618; and «c TITLE variance, effect of, in suit for, 545, 546. waiver of title, how stated in bill for, 265, 303. SPEED CAUSE, undertaking to, 503. SPOLIATION, receiver, when appointed, in cases of, I755i 1756- STAMP, agreement to waive, objection for want of, not given effect to, 534- averment of, not necessary, 298. insufficient on probate or administration, no decree till remedied, 263. objection for want of, taken by Court, 611. ' cause allowed to stand over to remedy defect, 612. STATED ACCOUNT, biU to open, certainty required in statements of, 303. errors must be specified in, 303. STATUTE. See Act of Partiament. STATUTORY JURISDICTION, application under, how made, 3, 1882. orders under, enforced as in suits, 1882. petitions under, title of, 1625. STAYING PROCEEDINGS, appeals, pending, 494, 1562 — 1565. account, taking of, not stayed, 1 564. costs not taxed, where, 1563, decision of question, not ordered when it would be, 1564. discretionary with Court, 1S&4. distribution of fund, in cases of, 1564. expense, not directed on ground of, 1565. foreclosure, in cases of, 1565. injunction, in cases of, 1564; after dismissal of bill, 1563, 1564. irreparable mischief, danger of, 1563. loss of object of appeal, danger of, 1563. special case, in case of orders on, 1872. INDEX. 2091 STAYING PROCEEDINGS— con/inueii. bankruptcy of next friend of married woman, on, 90. bankruptcy of plaintiff after decree, on, 512. concurrent suits, in, 490—494; and see Concurrent Suits (Staying Proceedings in). consent, by, application for, how made, 486, 487. contempt, till clearance of, 1723. cross suits, in, 356. decree, after, 486 ; in class suit, 487. election, pending inquiry, in cases of, 515. foreign Court, after decree in, 493. infant's suits, in cases of, 55. infringement of patent, where oppressive number of bills filed, 280, .■. (2), 494, 495- lunacy, pending inquiry, as to, in case of plaintiff, 68. married woman, instituting proceedings as feme sok, in case of, 91, n. (5). payment of costs of former suit for same matter, until, 489, 490, 509, »534. amount of costs must be first ascertained, 490, 491. pauper, when plaintiff, a, 35. payment of costs of abandoned proceedings for same object, until, 489, 490, 1468, 1623, 1720. receiver's accounts, must be passed notwithstanding, 1790. re-hearing pending, 494, 495. security for costs, till giving of, by plaintiff or applicant out of the jurisdic- tion, 20, 21, 30, 31. misdescription of plaintiff, in case of, 292. next friend of married woman, by, 89. specific performance, in cases of, 1563, 1564. submission to plaintiff's demand, and to pay costs, on, 488, 489. only by consent, if application by plaintiff, 488, 489. STEWARD, communication to, not privileged, 410. STOCK, transfer of, when restrained, 1679. STOP ORDER, 1715— 1719. applicable to what funds, 1715 — 1716. application, on whose granted, 1716 ; how made, 1 71 7. costs of, right of applicant to, 1719. documents deposited in Court, on 1719. evidence in support of application for, 1717. fieri facias, granted in favor of creditor, under writ of, 1 71 6. fund must be actually in Court, 1716. irregularity, discharge of, for, 1719. judgment creditor, when granted in favor of, 1716. married woman's reversionary chose in action, form of, in case of, 17 18. notice to applicant of dealing with fund, 1 719. petition, title to be shown by, I7I7- priority, acquired by, 1718. registrar, lodging order with, 1 718. restraint effected by, 1719. rights of parties not decided by, 1718. service of, petition for, 17171 1718. solicitor's lien, not effected by, 1718. , subsequent assignment of interest affected by, proceedings in case of, 1 7 19. trustees' costs, when made subject to, 1718. STRANGER, advances made by, to wife entitled to maintenance, repaid him, 82. STREAMS, pollution of, when restrained, 1664. 2092 INDEX. STRIKING OUT NAME, defendant, of, by amendment, before answer, 251, 319. after answer, 251, 319 ; and jf? Amendment of Bill. demurrer, after allowance of, 432. plaintiff, of, by amendment of bill, before appearance, 319. after answer, 320, 321 ; and see Amendment of Bill. in case of infants, 57, 331. SUB-CONTRACTS, bill against several persons claiming under, not multifarious, 277. person entitled under, when necessaiy party, 156, 157, 234. SUBMISSIONS, improper, infant not bound by, 59- striking out of bill, 331. insertion of, in decree or order, 628. SUBORNATION OF PERJURY, demurrer, because discovery would subject defendant to charge of, 397, 398. SUBPCENA {WRIT OF), generally, 579. indorsement on, 579. issue of, 579. precipe for, 597- time for service of, 579. ad testificandum, 578, 579. examiner, to compel attendance before, 578. exhibits, to prove, at hearing, 564. husband and wife counted as distinct persons in, 5 79. service of, 564, 579 ; and see Service. cause against decree, to show, 134. duces tecum, 578 ; demurrer not necessary on refusal to produce under, 597. documents, description of, in, 578, n. (3). examiner, to compel attendance before, 578. exhibits, to produce, at hearing, 564. service of, 564, 579 ; and see Service. SUBSCRIBERS, one of many, to an institution, may sue on behalf of himself and others, when, 196, 197 ; not if dissolution sought, 196, 197. SUBSTANCE OF BILL, demurrer to, 392 — 396. SUBSTITUTED SERVICE. See Service. SUE (RIGHT TO), persons having co-existent with plaintiff, necessary parties, whether right at law, 152 ; or in Equity, 1 65. or for the whole or part of the subject-matter, 167. SUITOR, arrest, when protected from, 667. SUMS, expression of, in affidavits, 574- in answers, 465, 466. in bills, 316. SUNDAY, bill, service of copy of, on, invalid, 351. time, when not reckoned in computation of, 289. SUPERIOR COURTS, office copy of record in, provable as exhibit at hearing, 561. proceedings in, course of, judicially noticed, 386. signature of Judge of, judicially noticed, 548. SUPPLEMENT. See Revivor. INDEX. 2093- SUPPLEMENTAL ANSWER, 474—480. admission of documents not permitted in order to qualify, 476. amendment of answer, supplemental answer filed instead of, 474. application for leave to file, how made, 476. case for, must be shown, 476. confined to object intended, must be, 476. evidence in support of application, 476. ignorance, when permitted in cases of, 474. Limitations (Statute of) not permitted in order to raise, 475- mistake as to facts, when permitted in case of, 474, 476. permission for, granted cautiously, 474 ; when granted and refused, 474, 475- position, not permitted where plaintiff cannot be replaced in his original, 478 . subsequent facts, when permitted in order to put in issue, 474, 475, time for making application for leave to file, 478. SUPPLEMENTAL BILL, OR STATEMENT, answer to, 1602 ; form of, 1602. bad title, cannot be supported by, 1600. contradictory to original bill, must not be, 1600. decree after, must not introduce new case or vary principle of decree, i6oo. demurrer to, grounds of, 1601. determination of interest of defendant before appearance, necessary in the case of, 1588. evidence, taken in original suit, read in, 1602. where decree in original suit has been made, 1602. execution, to carry decree into, may be filed pending appeal, 1562. hearing, when no decree in original suit, 1602. after decree in original suit, 1602. motion for decree, hearing of, on, 1602 ; evidence in such case, 1602. necessary, when, 1588. parties added by, 245. answer to, grounds of, 1602. prayer that bill may be taken as a, 1602. replication to, 1602. SUPPLEMENTAL CAUSE, advance of, 609, 1602. SUPPLEMENTAL ORDER, abatement, or defect in suit, instances in which made on, 1585, 1586. application, made on whose, 1587, 1588- assignee ^^«rff«;? A'fe brought before the Court by, 236, n. (i), 1587, 1588. intermediate remaindermen coming into being pendente lite, added by, 222, parties added by, 245. personal representatives of accounting party, form of, against, 1588. SUPPLEMENTAL STATEMENT, abatement, not remediable by, 1580. applicable, when, 1580. defendant, cannot be filed by, 1600. facts occurring since filing of bill, when introduced by, 322. parties not added by, 1600. plaintiff not ordered to file, 1600. preparation, filing, and procedure on, 1600. rephcation to, 527, 1600. SURCHARGING AND FALSIFYING. 6^<; Master's Office. SURETY, necessary party to suit for contribution, unless msolvent, 226. but plaintiff may then elect to make him a party, 227. not necessary party to suit against principal, 225. unless he has paid part of the debt, 226. or he has charged his estate as a collateral security, 225. ne exeat, in cases of, 1739. receiver, of, liabilities and rights of, 1797— 1799 5 and see Receiver. ^094 INDEX. SURPLUS, banki-upt cannot sue assignees for, 49, 50. incumbrancers not necessary parties to suit for execution of trusts of, 213, 214. SURPRISE, new trial at law on ground of, 690. when caused by fraud of opposite party, 691. new trial of issue on ground of, 679. case to be made on application, 679. SURVIVORSHIP (MARRIED WOMAN'S RIGHT BY), bar of, after, husband may continue joint suit without administering to wife, 91. chattels, real, in, 99, 103. how barred, 99, 100, 102. agreement to assign, by, 100. assignment by husband, by, 99, ico. of wife's judgment, 100. of land held by wife under decree until payment, 100. of wife's mortgage for years, 100. of wife's term upon condition and entry for breach which cannot take place in his life, 102. under-lease by husband of wife's term, pro tanto, by, 102. not baiTed, 100 — 103. assignment by husband, by, 100 — 103. interest of wife incapable of vesting during coverture, of, 103. mortgage in fee of wife, of, unless debt reduced into possession, 100. satisfied term created in trust for wife out of her inheritance, of, loi. term of wife upon condition and entry for breach which can take place in his life, of, 102. trust term of wife created with his consent, of, loi. bankruptcy of husband, in case of wife's mortgage in fee, unless" debt reduced into possession, 100. rules as to, the same whether chattel legal or equitable, 99. assignment for or without value, whether, 102. term in trust for wife, and term in trust to raise money for her, in case of, 100. trust of wife's term, and term itself, in case of, 99. choses in action, in, 91 — 97, how barred, 91 — 97 ; and see Reduction into Possession. rules the same whether chose in action legal or equitable, 96, 97. assigned for or without value, or by act of law, whether, 96, 97. reducible into possession or not, whether, 96, 97. death of either party before approval of settlement and without children, unaffected by, 86. equity to settlement, distinct from, 73. TACKING, principles with respect to, 172, 272, 273. TAIL (TENANT IN), bill by, and his children, to perpetuate testimony to his marriage, does not lie, 262. death of plaintiff without issue, effect of, 222. first, necessary party to redemption suit, where property settled by mort- gagee, 215. incumbrancers upon estate of, when necessary parties, 187. persons entitled after first, not necessary parties, 221. unless nature of estate doubtful, 221 ; or tenant a lunatic, 221. INDEX. 2095 TAXATION, IS39-IS45- contemnor may proceed with, 1723. party and party, as between, what included in, 1539, 1545. costs taxed as, unless otherwise directed, 1509, 1540. trustees' costs, when taxed as between, 1541. principles of, 1539 — 1545. once adopted, followed on subsequent taxations, 1540. reference, without formal, 509, 1622. solicitor and client, as between, 1539, 1541 — 1544. administration suit by heir, of heir's costs in, IS43- Attorney-General, of costs of, in charity cases, 1542. charity cases, in, 1542. creditor's suit, of plaintiff in, 1542, 1543. general fund, when costs paid out of, or fund of party, 1539, 1544. heir, of costs of, in charity cases, 1542. legatee's suit, in, 1543. next of kin, of costs of, in charity cases, 1542. personal representatives and trustees, costs of, when taxed as between, 1541. residuary legatee's suit, in, 1543. subsequent costs, of, included under direction for, unless specially excluded, 1464. TECHNICAL EXPRESSIONS, how far to be used in bill, 295, 296. TENANCIES, creation or determination of, by receiver, when permitted, 1785. TENANTS, cultivation by, in breach of covenant, restrained, 1684; distinction between express and implied covenants, 1685. custom of the country, contrary to, restrained, 1684. manor, of, some only need be parties to suit, as to right of common, 228, 229. parties, not necessary to suits to settle boundaries, 217, 2i8. or generally for land, 219. terrc^ all, necessary parties to suit affecting rent-charge, 231. except in case of charities, 231. waste by, restrained, when, 1652, 1653. TENANTS IN COMMON, lessees of, when necessary parties, 167. mortgage, of, when necessary parties, 170, 171. parties, when necessary, 167, 168. receiver, when appointed between, 1761. waste by, restrained, when, 1652, 1653. TENDER, amount due, and costs, of, effect of, 1484 — 1486, costs of contempt, of, 1725, 1726. TERM OF YEARS, husband's interest in wife's, 99, 100 ; in her trust of a term, 99, 100. sequestrators cannot sell, 654, 655. THELLUSSON ACT, costs where bequest declared void under, 1535. TIMBER, felled, removal of, when restrained, 1680. forfeiture for felling, whether relieved against, 1687. ornamental, cutting down by tenant for life, restrained, 1659, 1660. 2096 INDEX. TIME, adding to decree, for, 348. affidavit, for iurnishing copy of, 577. ex parte, on, application for injunction, or m exeat, 1697. amendment of bill, for, by order of course, after answer, 327. addition of parties, not increased by, 329. demurrer, after, 325. enlargement of, how obtained, 334. amendment of bill, for making, after order obtained, 333. enlargement of, how obtained, vacations not computed in, 334. enlargement of, 464. jurisdiction, when bill served out of, 349, 350. married woman, for separate answer of, 146, 469. notice of filing, forgiving, 471. security for costs pending order for, 30, 31, 463. sufficient, when to be deemed, 480, 481. supplemental answer, for, application for leave to file, 478. certainty required in allegations of, 301. copies made by solicitors, for delivery of, 577. cross-examination, for notice to produce witness for, 519. decree or order, for bespeaking, 628. for service of appointment to pass, 630, 631 demurrer for setting down, 427. vacations, time of, not reckoned in, 428. election, for obtaining order for, 513, 514. extension of time to make, how procured, 515. enrolment of decree or order, for, 634. entry of decree or order, for, 633. examination de bene esse, 588 ; for giving notice of, 591, 592. guardian ad litem, for service of application to appoint, 125. measurement of, judicially noticed, 386. minutes, for service of appointment to settle, 629. for motion to vary, 630, 63 1 . motion for decree, for giving notice of, 516. extension of, 516 ; when time to answer enlarged, 516. motion for decree for filing affidavits on, plaintiff's in chief, 517, 518. defendant's, 517, 518. enlargement of, how procured, 518, 519. notice of motion, for service of, 1615. petition, for service of, 1626. pro confesso, for motion to take bill, 371. absolute, where decree not, 379. pro confesso, for application for leave to answer, when decree taken, 37S. prosecution, for motion to dismiss for want of, 494 — 496. amendment of bill and further answer not required, after, 495. answer, after sufficient, 494, 495. enlargement of, 526. notice of filing, for giving, 525. setting down cause, for, 599. TITLE, AND S'.c Master's Office. denial of plaintiff, by answer, not a ground for refusing discovery of accounts, 449- different, bill claiming same right by, not multifarious, 283. doubtful questions of, not decided on demurrer, 382, 434. inquiry into, on proposed purchase or mortgage, 1376, 1377 J prosecution of, '377-, inquiry into, in specific performance suit, 616 — 610. application for, how made, 619. form and terms of, 617, 6 1 8. prosecution, bill not dismihsible for want of, after order for, 501, 502, 507, 508. INDEX. 2097 TITLE — continued. right of, how lost, 617, 618. time of showing, 618, 619. preliminary acts necessary to complete plaintiff's, must be averred, 264. statement of plaintiff's, when it need not be full, 264 ; when it should be, 26s, 303. waiver of, how stated in bill for specific perfonnance, 265. TITLE DEEDS, agent or attorney having, not a necessary party, 248, 249, 1848, 1849. certainty required in bills for discovery of, and possession, 302. contingent remainderman cannot sue for inspection of, 261. delivery of, to purchaser on sale by Court, 1369 ; where sale in lots, 1369. production of, in suits to impeach, 1852. TITLE OF BOOK OR PERIODICAL, infringement of right to, when restrained, 1673. TOLLS, . receiver of, appointment of, 1761, 1764. TRADE, breach of covenant not to, when restrained, 1681. covenant not to, not implied in sale of goodwill, 1681. license to carry on, extent of, 1685. receiver of, appointed when property is in nature of, 1760, 1761. TRADE MARKS, infringement of, discovery of, must be given, 401. injunction against piracy of, when made perpetual, 1707. jurisdiction, in cases of, 1673 ; when relief not given, 1676. title to, how acquired, 1673. TRADING, defective proof of, how remedied, 541, 542. notice to dispute, must be given, 527. TRADING CONCERN, one of several proprietors of, may sue on behalf of himself and others, when, 196. TRANSLATION, answer in foreign language, of, how obtained, 467, 468. TRANSPORTATION, civil death, when a, 70. security for costs, by plaintiff under sentence of, 25 ; and see Costs (Se- curity for). TREASON, attainder for, effect of, 70 ; and see Attainder— Conviction. TRESPASS, injunction, when granted, in cases of, 1654, 1655. TRIAL OF ISSUE. &^ Issue. TRIAL OF QUESTION OF FACT. See Fact (Question of). TRIAL (NEW). See New Trial of Issue or Question of Fact. TRUST, allegation of, in bill, 297, n. (3). breach of, cesttii que trusls concurring in, necessary parties to suit to repair, 182, 184, 225 ; not represented by trustees, 181. married woman's separate estate bound by her, 149. persons joining in, when not all necessary parties to suit to repair, 227, 228. trustees implicated in, when necessary parties to suit to repair, 224. 2098 INDEX. TRU S T — continued. jointly charged with, though relief only prayed against one, when, 306, deed, creditors under, all necessary parties, when, 232. execution of, decree for, on application of one cestui que trust, others not being parties, 202, 341 ; of trustee against one cestui que trust, 184, 341. perpetual injunction, when granted after, 1708. implied, receiver, when appointed, in case of, I7SS, 1756. property, sale of, when restrained, 1679. resulting, where husband and wife join in mortgage, 100. in satisfied trust term created out of wife's inheritance, loi. tei'm, of, husband's interest in wife's, 99, 100. will, of, heir of devisor not necessary party to suit to execute, 190. TRUSTEE, agent of, not a necessary party, 203. assignee of, when a necessaiy party, 203. bare trustee, not a necessary party, 202. cestui que trust not a necessary party to trustee's suit against co-trustee, 182 ; or to recover trust fund improperly Jent, 182. unless he concurred in breach of trust, 182. cestui que trusts, represented by, when, 171, 173, i8o, 181, 186, 212, 213, 214. foreclosure suits, in, 171, 173. redemption suits, in, 215. cestui que trusts, not represented by, if interests conflicting, 181. or in contests inter se, 181. costs of, 1510 — 1525 ; and see COSTS, costs, charges, and expenses, when allowed, 1544. creditors, when represented by, 171, 182, 183, 213, 214. death of, revivor when not necessary, on, 1595. execution of trusts, decree for, on application of, against one cestui qtie trust, 184, 341. fraudulent, discovery must be given by, 401. joint liability for breach of trust, when charged with, though relief only prayed against, 306. just allowances, what are, in case of; see Master's Office. legatees, when represented by, 213, 214 loss of time, not entitled to compensation for, 1517- conveyance of trust property, settlement of, 1383, 1384. receiver, when discharged upon, 1796. statutory power for, 1384. one may be sued without the other, when, 203. party, when necessary, 153, 164, 203, 224, 225. account, to suit for, 225. accountable to unsuccessful defendant, if, 203. administration, to suit for, 225. breach of trust, to suit for, 224. estates, having, 203. legal estate, having, 153, 164 ; whether trust expressed or implied, 153. when not necessary, 164, 188, 203, 227, 228. account, to suit for, 227, 228. bare tnistee, 202. equitable estate, having, 164. .will, now acting trustee under, 203. payment into Court by, when directed. See Payment and Transfer INTO Court. payment of interest to, form of order for, 1830. payment of, wife's right by survivorship, not bound by, 93. production, not ordered by, in absence of, cestui qtie trust, 1849. receiver, appointment of, against, I757> '758 ; and see Reckivfr. removal of, imputation of corrupt or vindictive motives, not scandalous in suit for, 286 ; secus, of general malice or personal hostility, 286. INDEX. 2099' T R U STEE — continued. sanction of Court to proceedings by, application for, how made by, 1380. sole, payment out to, only ordered by consent, 1828. solicitor, not allowed professional charges, 1516. suit, effect of institution of, on powers of, 1380. TRUSTEE AND CESTUI QUE TRUST, costs, one set of, when allowed between, 456. TURNPIKE TOLLS, receiver of, appointed, 1764. ULTRA VIRES, acts of corporations, when restrained as being, 1676. UNDER-LESSEE, waste by, when restrained, 1652, 1653. UNDERTAKING, absent parties, to give effect to rights of, by plaintiff, 245 . > apply, to, payment out of, when ordered on, 1831. defendant, amendment of bill, when a discharge of, 337. speed cause, to, 503, 504. UNDERTAKING AS TO DAMAGES, interim order, when required on, 1694. dismissal of, bill not vacated by, 1694. given, how, 1688 ; by limited company, 1694. ne «xtat, on application for, 1742. assessment of damages under, on discharge of writ, 1747, 1748, next friend of infant, how given by, 1742. UNDUE INFLUENCE, party asserting, must prove, 535. unless impeaching voluntary instrument, on the ground of, 537. UNSOUND OR WEAK MIND (PERSON OF), answer of, put in hy guardian ad litem, 139, 469. heading of, 459. jurat to, 469. read against him, whether it may be, 139, 531. Attorney-General may sue on behalf of, 5, 67. Chancery, jurisdiction of Court of, over property of, 1399. competency, inquiry as to, when directed, 139. defence of, conducted by guardian ad litem, 1 38. guardian of, appointment of, 1399 , to concur in special case, 1866. guardian ad litem, of, how and when appointed, 138, 139, 348, 1627. ' and see Guardian ad Litem (of Person or Unsound or Weak Mind). maintenance, allowance for, when and how ordered, 1399. motion on behalf of, 1613. next friend, usually sues by, 5, 67, 69. bill filed on behalf of, without, taken off the file, 68, 69 ; and see Next Friend (of Person of Unsound Mind.) respondent, s.'^^omtm.tnt oi g'uardian ad litem ior, 139, 1627. service of the bill on, 352. jurisdiction, out of the, 360. service of notice of the decree on, 342. application for, direction as to, how made, and evidence, 342. service, how effected, 346. special case, concurrence in, 1865. suits against, 104, 138—140; by, 52, 67—69. And see Lunacy — Lunatic. VACATIONS, amendment of bill, not computed in time for, 327. days of commencement and termination included in, 327, 328. times of, 327, 328. 2100 INDEX. VALUE, inadequacy of demurrer, on the ground of, 272, 393. motion to dismiss, on the ground of, 272. VARIANCE, effect of, 545. prescription, when rights founded on, 545. specific performance, in cases of, 546. VARIATION (PAROL), specific performance not decreed, where proved, 305. VENDOR, election between suit and action, when put to, 513. VERDICT, new trial, at law, on account of, 686. perverse, new trial at law on ground of, 686. VESTING ORDER. See Master's Office. VINDICTIVE MOTIVES, imputation of, when not scandalous, 286. VIOLENCE, server of process or order, to, punishment for, 667. VISITOR, charity, of, powers of, 1886. VOLUNTARY DONATION, onus probandi on party setting up, 537. VOUCHERS. See Master's office. WAIVER, allegation of, where relied on, 303. contempt, of, 1727 — 1729. amendment of bill, when a, 338, 1728. answer, acceptance of, is, 1727. acceptance of, costs of, not a waiver, 1 726. taking official copy of, when a waiver, 1723, n. ; when not, 1723, n. 1727. cross bill, filing, not a waiver of plaintiff 's in original suit, 1728. defendant, by one, in favor of plaintiff, insufficient to sustain bill, if right not shown, 262. discovery, of right to protection against, none in criminal cases, 400, 401. irregularity, of, principle of, 1 730, 1731 ; not applicable to erroneous order, 1731. acceptance of answer, by, 480. amendment of bill in, 334 ; allowance of demui'rer, after, 430. bill, in frame of, what is, 417. jurat in, 468, 576 ; must be express, 468. sequestration, in, 650, 651. notice of motion, of, by subsequent amendment of bill, 338, 1623, 1699. penalty or forfeituie of, 311, 312 ; effect of, 311, 312, 397. demurrer, for want of, 312, 397. relief against absent parties, of, 245. title, of, how stated in bill for specific performance, 265, 303. WAR, breaking out of, effect of, on-svit by alien, 46. prisoner of, may sue, when, 44. state of, judicially noticed, 46, 386 ; secus, between foreign states, 46, 386. WARD (OF COURT), constituted, how, 54, 1384. jurisdiction, must be kept within, 1393. leave to go without, when and how given, 1393, 1394- INDEX. 2101 WARD (OF COVRT)—confi»!ied. marriage of, proceedings on, 1404 — 1407. without consent, injunction to restrain, 1404, 1688 ; and see Marriage. payment into Court of fund belonging to, 1818. removal of, injunction to restrain, 1393, 1688. settlement on, enforced in cases of clandestine marriage of, though an adultress, 86. WARRANT, jMasters. See Master's Office. WASTE. account of, incidental to injunction, 1661. class, one of a, may sue on behalf of self and others to restrain, 341. equitable, definition of, 1659 ; restrained, when, 1659, 1660. injunction to restrain, 3, 53, 1652, 1653. application, on whose, granted, 1773 ; against whom, 1773. Crown, at the suit of the, 3. equitable titles, in case of, 1773. infant en ventre sa mere, at the suit of, 53, 1653. perpetual at hearing, made, 1707. WAY (RIGHT OF). certainty requisite in allegations of bill to establish, 300, 301. parties to bill to establish, 169. WEAK MIND (PERSON OF). See Unsound or Weak Mind (Person of). WEIGHTS, legal, judicially noticed, 388, 389. WEST INDIES, receiver of property in, when appointed, 1765. WHOLE MATTER, bill must be for, 272 ; if capable of immediate decision, 273. WIFE. See Married Wo.man. WILFUL DEFAULT. See Master's Office. WILL, admission of, by heir, 556 ; insufficient, how remedied by evidence, 541, 542 alleged in bill, how, 298. constniction of, costs of suit for, 1530. establishment of, how proved in suit for, when original cannot be obtained, 557- heir necessary party to suit for, 191. perpetual injunction granted against heir, after decree for, 1708 in suit against infant heir, 133. inquiry not directed to remedy defect in proof of, 543. exhibit, not provable as, at hearing, 562. fraud used in obtaining, not cognisable, in Court of Chancery, 390. hac verba, when set out in, 296, 297. married woman, appointees under, when necessary parties, 184. when some allowed to sue for all, 184, 196. probate, or stamped copy, when admitted as evidence of, 557. production of, how obtained, 557- proof of, must be stated by executor plaintiff, 262, 263 ; unless bill filed to protect property pending application for probate, 262, 263. how alleged, 262, 263. proof of, in evidence in suit to establish it, 555 — SS^i 557- colonies, after proof in, 556. defective how remedied, 541, 542, 556. sanity of testator must be shown in suit to establish, 556. witnesses, all, must be examined ; exceptions, 555. 109 2102 INDEX. WILL — continued. proof of, in evidence where suit not to establish it, 556, 557. secondary evidence of contents of, when admitted, 558. thirty years old, proves itself, 554. trusts of, heir of devisor not a necessary party to suit to execute, 190. WITNESS, who may be, 564. abroad, about to go, examination of, de bene esse, 585, 586. order for, is of course, 589. absence of material, new trial of issue on ground of, 680. at law, on ground of, 689. affirmation of, how taken, 565. aged, examination of, de bene esse, 585, 586 ; order for, is of course, 589. arrest, protected from, when, 667. attack on, in newspapers, a contempt of Court, 565. examiner, before, 578. exhibits, with, at the hearing, 564- partition, before commissioners of, 702. de bene esse examination, 584, 595 ; and see De Bene Esse (Examination). default in attendance, proceedings in case of, 580. defendant, who is, cannot protect himself from discovery by answer, but must demur, 250. demurrer by, 595 — 599 ; and see Demurrer (by Witness). examination of, 577 — 584 ; and see Examination (of Witnesses). expenses of, tender of, 580 ; on examination in Chambers, 727. if a married woman, 580. ill, dangerously, examination of, de bene esse, 585 ; order for, is of course, 589- illness, dangerous, liable to, examination de bene esse, 588. misconduct of, new trial at law on ground of, 689. mistake of, new trial at law on ground of, 690. next friend may be, 61. objecting to answer, motion that he may attend at his own expense, 599 ; costs of, 599. one, decree not made on uncorroborated evidence of, against defendant's answer, 532. party, should not be joined as, 246 ; unless member or officer of cor- poration, 113, 247, 266, 303, 304. peer, when a, must be sworn, 565. perjury of, new trial at law on ground of, 690. prisoner, a, proceedings in case of, 581. attendance of, in Chambers, how obtained, 727- production of documents, how obtained from, 578 ; in Chambers, 727- refusal to produce, proceedings on, 581 ; and see SuBPCENA (Writ of). sole, to important fact, examination de bene esse, 585, 587- order for, not of course, .589 ; affidavit in support of application, 590. sworn, how, 565. sworn, refusing to be, proceedings against, 581. WORKS OF ART, publication of, when restrained, 1672. WRIT, name, place of business, and address, for service (if any) of solicitor or party (if acting in person) suing out, to be placed on, 361, 362. and in agency case, principal solicitors also, 361. And see the particular writs. the end. ^vXi^^HOv^ccv^ ■J.^J? /\j\j'^ 'h M| md^^' tq V^V ^wdii^^F aiM»-* iw)|v^^^vfl0 ^1 '*'«^« 5?rTp5iBpra Bi4