_:i^ ■^l LAW WOE KS PDBIISHED BY *> Tripp' Wi Prides Tl. Arnon Se< Dauie: Th Colem Ur Boscoi Po Steer') ih Thrin] In Thrifflj In WilUL MaraljaU lEquttg QloUertton (gift of E. 31- MntBifall ai.ffi. 1. ia94 Fifth Edition. In 2 vols, royal 8vo. elotli. 1856 .... Cooke on Inclosures, With a Treiitiae on the Law of Rights of Common. Third Edition. In 12mo. cloih. 1856 . . . . . . . . 15 Dart's Vendors and Purchasers. Third Edition. In 8vo. cloth. 1856 . ... . . .160 Smith's Compendium of the Law of Real and Personal Property, . Connected with Conveyancing, for the use of Students and Practitioners. In 8vo. clotli. 1855 ., . . . . ..180 LAW WORKS PUBLISHED BY STEVENS — (SV/^ I CORNELL UNIVERSITY LIBRARY Harrison's Analsrtical Digest of Common Law Casi 3 -| 924 084 250 The Third Edition. By B. T. Haeeisoh, Esq. ContinuedTiTISSS by R. A. FiSHEB, Esq. In 6 vols, royal 8vo. boards . . . . 10 10 Harrison's Digest, continued from Easter Term, 1843, to Michael- mas Term, 1855. By E. A. 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In 8vo, cloth Smith's Manual of Equity Jurisprudence. Fourth Edition. In 12mo. boards . , . . . o 10 1 16 10 6 3 13 6 1 J Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084250129 THE RECORD AND WRIT PRACTICE OF THE COURT OF CHANCERY. THE EECOED AND WEIT PEACTICE €mxt 0f C|anmg. OOMPEISINO THE SEVERAL FORMS USED IN PEOCEEDINGS IN THE RECORD AND WRIT CLERKS' OFFICE. IPraxtkd gimta miis MmMxam, BY THOMAS W. BRAITHWAITE. OF THE BEOOBD ARS WBIT eLEKKg' OFFIOB. LONDON: V. & E. STEVENS AND G. S. NORTON, 3La&i iSooftsellets anS ^uMiefiets, 26, BELL YilllD, LINCOLN'S INN, 1858. l&lo^l^O London: bbadeuhv and evans, printers, whitefriars, PREFACE. The Author believes that notwithstandiBg the existence of several works on the Practice of the Court of Chancery this volume will he acceptable to the practitioner, much of the information which it contains being such as is in constant requirement, and yet not to be found in other books of practice. The observation may appear egotistical, — it is, nevertheless, only the expression of a conviction founded on daily expe- rience and observation. The work upon the same subject, published by the late Mr. Veal, in the year 1845, was, so far as it extended, of real practical utilify, — but, by the changes which have been effected in the practice of the Court since that time, espe- cially since 1853, such work has become obsolete, and almost entirely useless. The difference in bulk of the present work, as compared with that published by the late Mr. Veal, is, however, so great, as to deserve some explanation. The difference alluded to may, in some measure, be attri- buted to the more complete treatment by the Author, in this work, of the several subjects included, — but it is more espe- cially attributable to changes in the practice and increase in the business of the Office. Since Mr. Veal's book was published, the business of the VI PREFACE. Eecord and Writ Clerks' Office has been completely trans- formed, and since 1853 such business has involved a variety of subjects of Practice, and an amount of detail, altogether un- known in the Office during the ten years preceding that date. In explanation and proof of this, it may be briefly stated, that the book containing the particulars of business done in the Office (and from which the Keturns required by the Judges and by Parliament are made out) contained, in the year 1843-3, seventeen principal columns — the heading of each of such columns indicating a particular kind of busi- ness — and those columns with their subdivisions extended at that time to twenty-one in number. And up to the year 1850-1 such book contained twenty principal columns, and with subdivisions thirty-two columns. Whereas, the like book, in the year 1853-3, contained thirty-one principal columns, and with subdivisions forty-nine columns — and at the present time the subdivision of columns in such book extends to sixty in number. And, it may be mentioned, that in the number of columns specified as being required since 1853, there is not included the Filing of Affidavits, nor the Administration of Oaths, nor the business consisting of the following particulars : — Filing Interrogatories, Pleas, Answers, Demurrers, Traversing Notes and Replications, and Entering Memoranda of Service of Notice of Decree, together with several other items of business transacted in the Office, in respect of which no fee is payable. The increase referred to is further shown in the amount of fees received for business done in the Office. It appears, from the published Eetums, that in the year 1850-1, — (the year preceding the changes in the practice which tended so to transform and increase the business of the office), — such fees amounted to the sum of £17,159. 3s. whereas, in the year 1853-3, they amounted toie35,515. 6s. 8d., and the amount of such fees has in each subsequent year PREFACE. Vll exceeded even the last specified amount. And such an excess with respect to the year 1856-7 is the more remarkable, inas- much as, during nine months out of twelve of that year, the lower scale of fees of Court has been in operation. Such a result can, however, scarcely be expected in future years, when the lower scale of fees of Court will probably be in more active operation — although, of course, such distinction with respect to fees, not only does not reduce, but rather increases the duties connected with the business of the Office. The statement thus presented, clearly shows that the business of the Record and Writ Clerks' Office has very considerably * increased since Mr. Veal's book was published, and more especially since the early part of the year 1853. It must also be manifest, from even a cursory perusal of this volume, that the duties of any person who may have to conduct the business transacted in such Office are not merely mechanical. As to the particular contents of the present work (a sum- mary of which win be found in the Table of Contents, commencing on p. xi.) it may be desirable to allude to a few of the subjects, as instances in which the information pre- sented diBfers from, or extends beyond, the information upon the same subjects as presented in other books. As to Enforcing Orders and Decrees, the information is adapted to the General Orders of the 18th July, 1857 ; and there will be found not merely a Form of Affidavit of Service of an Order or Decree, but also Forms and Instructions having reference to the nature of the Order or Decree to be enforced — and, among the Forms of Indorsements on Writs of Attachment, both the ordinary and special official require- ments, necessary to be complied with in enforcing Orders and Decrees, are shown. As to Writs of Partition, Writs of Injunction, and several other writs, practical information is afforded, which it is believed is not to be found in other books of practice. JREFACE. As to the Inrolment of Decrees and Orders, forms and instructions are provided applicable to many cases, and to the numerous variations in the modes of preliminary procedure, and to subsequent proceedings. As to Service of Notice of Decree, much additional in- formation is presented. And, as to the obtainment of Orders to take Bills pro confesso, it is thought that the explicitness with which the practice upon that subject is set forth, will be very acceptable to the practitioner. In the preparation of the more important Forms the Author • endeavoured to realise to his own mind cases of actual occurrence — his object being to impart to such Forms a thoroughly practical and workable character. The plan adopted as to the arrangement of the Contents of the book, has been such as it was thought would afford the greatest facility to the practitioner in his search for information, and in his use of it when found. And this observation supplies the reason why, in some instances, prac- tical information is partially repeated instead of referring the practitioner to other parts of the book for the information he might at once require. The pages of the book might have been extended far beyond their present number, by the introduction of other cases which have arisen from time to time, involving points of prac- tice bearing upon the business of the Eecord and Writ Clerks' Office. And the title, "Eecord and Writ Practice," might have justified such extension. But an endeavour has been made to limit the contents of the book to the actual business of the Record and Writ Clerks' Office, and the deviations from such plan involve chiefly those cases in which the practitioner may require additional information for immediate use. In other cases, and where the deviation would have in- volved a wide departure from the rule, reference has been made PREFACE. IX to other well recognised books of practice, it being considered that even such a reference would be useful, as tending to facilitate the search for the further information required. The Author does not presume to imagine that the book is perfect. In devoting, to the actual preparation of it, almost the entire of his leisure time, for more than a yeaar past, his endeavour has been to produce a practical and useful book — a book adapted to the exigencies of actual work; and it is his anxious desire, that, in the event of its being required to any extent beyond the present edition, it should be as complete and as perfect as possible ; and, therefore, to all classes of critics, he would respectfully say, that " the smallest contribution — tending to improvement-^ will be thankfully received." CONTENTS. PART I. PAGE Official attendance and Yacations 1 Fees payable in the Record and "Writ Clerks' Office . . . • 2 Indorsement of name and address of Solicitor or party on proceedings 8 Service of Kotioes, and other documents 10 Computation of Times of Procedure • . 12 " Reference," or Distinctive Mark 14 PART II. '§mxh. Bill, Form of 16 formal commencements of informations and BUls . . .19 practice relating to 23 sealing and service of copies of Bills 29 Inteeeogaioeies Form of (filed by Plaintiff ) 34 ,, ,, practice relating to . . .33 „ (filed by Defendant) 39 „ „ practice relating to . . .39 AifsWEB, Form of 40 formal commencements of 41 practice relating to 44 Xll CONTENTS. PAQE DlSClAIMES ^' DEinrEEBE, Form of ^"^ practice relating to ^° PlEA, Form of ^^ practice relating to . . ■ ^1 Teateesino Note, Forms of ^^ practice relating to . 67 Repiication, Forms of '^0 practice relating to '^ Stjpplementai Statement, Form of 80 practice relating to 80 CiAiM, Forms of 82 practice relating to 92 Supplemental, practice relating to 96 to Revive, Form of .96 practice relating to 97 sealing and serving copy of 98 Special Case, Form of 103 practice relating to 103 ABMiiriSTRATioir Summons, Form of 106 practice relating to 107 Summons OEiGiNAiiNa Peooeedings, Form of 110 Evidence, Formal commencement of Depositions 112 Examiner's Certificate . . 115 practice relating to 117 Exceptions eoe Insuepicienct, Form of ■ 126 practice relating to 127 Exceptions poe Scandal, Form of 130 practice relating to 131 Exceptions poe Impeetinence, practice relating to . . . . 132 PAKT III. Mrits. General practice relating to Writs I33 Forms of directions of Writs to Sheriffs 148 Returns to be inserted in Writs of Attachment 152 Costs of contempt I54 ii. fa, elegit, or venditione exponas 155 CONTENTS. XIU PAGE Wmt of Assistancb, Form of 156 practioe Telating to 157 Attachment, Form of 158 Indorsements on (for not appearing) .... 159 (for not answering) . . . . 162 (for breach of Order or Decree) . .168 Commission to examine "Witnesses, Form of 180 practice relating to . . 186 Commission to assign Gttahdian, Form of 187 practice relating to . . .188 Distringas (to restrain Transfer of Stock), Form of . . . . 189 • practice relating to . . 190 (for breach of Order or Decree), Form of . . . . 193 practioe relating to 194 Elegit, Forms of Writs of, &c 197 Fieri Facias, Forms of "Writs of, &c 208 Habeas Cobpus, Forms of 222 practice relating to "Writs of 224 Injunction, Form of "Writ of 225 practice relating to "Writs of 228 Ne Exeat Regno, Forms of "Writs of 229 practice relating to "Writs of ... . 232 Commission op Paetition, Form of 233 practice relating to ... . 235 Commission op SEarESTKATioN, practice relating to . . . . 239 Forms of, &e. . . ^ . 241 SuBPffiNA, practice relating to "Writs of 246 to appear, &c., Forms of 247 practice relating to 250 to testify, Forms of 251 practioe relating to 253 to hear judgment. Form of 257 practice relating to 258 for costs. Form of 260 practice relating to 261 to name a Solicitor, Form of 264 practice relating to 265 to show cause against a Decree, Form of .... 266 practice relating to . . . 266 Summons (on claim), observations upon 267 Form of 268 practice relating to 269 XIV CONTENTS. PAGE Venditioni Exponas, Form of "Writ of . . . • ■ • ^^^ practice relating to "Writs of . . • ■ ^70 EBTOMfs 10 Waits, 1. of Attachment. Return " oepi corpus," and proceedings thereon, in- cluding the practice as to ohtaining Orders to take Bills pro confesso 2 ' " " Attached and imprisoned " ^°'- " Non est inventus " 285 obtaining from the Sheriff 289 2. o^JVertJlJCJOs, Special Form of 290 3. q/" /Seyuesirofeon, Form of Eetum " nulla bona " to . . 291 Oedee to take Bill peo contesso, (in addition to the above) Against an absconding Defendant, 1. For want of appearance . . .... 292 2. ,, answer 294 against a Corporation, practice relating to . . . ...... 297 against a Peer, practice relating to 297 PART IV. Amendment, 1. of biU, practice relating to 299 2. of information „ 309 3. of interrogatories 4. of answer 5. of claim 6. of special case 7. of summons 8. of replication 309 312 313 315 317 318 CONTENTS. XV PART V. FFEABAI7CB, general practice relating to entiy of By Dependant, 1. to biU, practice relating to entry of 2. to claim ,, 3. to " special case " ,, 4. to summons ,, 5. to order to reviye, &c. „ 6. to supplemental statement ,, 7. by party served ■with copy bill „ By PLAXtTTIFP, 1. in ordinary cases . . . . . 2. for Infant or person of unsound mind 3. fdr Defendant served out of the jurisdiction 4. for an absconding Defendant o. for a Married Woman . . . , 6. for a Peer 7. for a Corporation FAQE 321 327 329 330 330 330 331 332 333 334 335 336 337 337 337 PART VI. %mms |u.rats anir #at^s. LFFiDAViTS, general practice relating to ... formal commencements of .... FOBHS OF, 1. of service of bill 2. of service of interrogatories 3. of service of subpoena to appear, &c. 4. to be filed with bill of interpleader 5. of service of subpoena for costs 6. upon which to enforce decrees and orders 7. to be filed with a BiU for discovery of a deed 339 350 350 353 354 356 356 357 370 XVI CONTENTS. PAGE Afpidatiis, Fobms of, continued. 8. for distringas to restraia transfer of stock . . . 371 9. of service of subpoena to name a solicitor . . 371 10. of service of notice of decree 371 Jtiiuts and Oaths, Forms of .3(6 PART VII. Ceeiificates, General practice relating to 406 FOKMS OF, 1. of biU filed 408 2. of printed copy of bUl not being filed . . . 409 3. of amendment of bill 409 4. of filing of voluntary answer to amended bill . . 410 5. of appearance entered (by Defendant) . . . . 411 6. (by Plaintifi') . . . .411 7. of entry of special appearance ... . . 412 8. of no appearance 412 9. of answer filed 413 10. (to be used on motion to dismiss) . 413 11. of answer filed to amended bill 414 12. of filing of further answer ..... 414 13. of no answer . 415 14. of filing of exceptions for insufficiency . . .415 15. for scandal . . . . 416 16. of filing of a traversing note . . . . .417 17. of filing of a replication 417 18. of filing of a caveat against claim to revive . .417 19. of no caveat being filed against claim to revive . . 418 20. of solicitor on record (for Plaintiff) . . . 413 21. (for Defendant) . . . , 419 22. (where order to change has been obtained) . * . .419 23. of entry of memorandum of service of notice of decree 420 24. (of copy bill) . 420 25. of deposit of a document 42 1 26. of deposit of documents 421 27. of inrolment of decree • ■ • . . 422 CONTENTS. Xvii Cebtificates, Fobms of, continued. 28. of entry of caveat against iniolment of decree . . 422 29. on certified copies and extracts 423 30. to set do^-n cause, and general practice relating to setting down causes 423 PART VIII. Inrolmeitts. iNROLaiENTS, general practice relating to 443 Fobms of DooftirETS of Inbolmest, 1. General Form 452 2. where cause heard after replication filed . . , 458 3. where cause heard on bill and answer . . . 459 4. where cause heard on motion for decree . . . 460 5. in suit by claim 460 6. in suit by " Special Case " 462 7. in suit by administration summons .... 463 8. of decree for foreclosure . . . . . . 464 9. of order on further directions .... 464 10. of order on further consideration . . . . 465 11. of decree made in two suits 465 12. of order in suit where a decree has been previously inrolled 466 13. of decree in suit where bill filed before 2nd November, 1852 466 14. Forms of statements of subsequently filed pleadings . 467 15. of order made on petition 472 16. of order made on motion 473 17. of order made on the hearing of a summons . . . 474 18. of order made on the hearing of exceptions to a Master's report . 475 19. of order made on the hearing of a demurrer . . 475 20. of order made on Appeal 476 21. of order made under the Joint-Stock Companies Winding-up Acts 476 22. of order made by the Court of Chancery in Ireland . 477 23. of order made by the Court of the Commissioners for the Sale of Incumbered Estates in Ireland . . 480 24. of order made by the Ecclesiastical Court in England 483 ♦ XVUl CONTENTS. PART IX. PAOB OiTiCE Copies, general practice relating to Copies to be made bt Solicitous, general practice relating to ■ ■*"" SeAECHINS POE and INSPECTINff KeCOEDS, practice relating to 500 Examined copies op Eecoeds, practice relating to ^^^ PaoDircTioN, &c., op Documents, practice relating to 503 Inspection op deposited Documents, practice relating to 508 Inspection op Appidatits, practice relating to • 510 Attendances in Couets op E(»uitt, practice relating to . . 511 Attendances in Couets op Law, practice relating to 513 Attendances on Invalids, practice relating to 514 Memoeandum op Seevice op Copt Bill, practice relating to 515 Memoeandum op Service op Notice of Deoeee, practice relating to 517 Caveat asainst the Ineolment op a Deceee, Form of, and practice relating to 526 Caveat against a Claim to Revive, Form of, and practice relating to 529 Bond poe Secueitt poe Costs, Form of, and practice relating to 530 Powee op Attoeney, . Form of, and practice relating to 536 Demuebek op a Witness, practice relating to _ _ 533 Eetuen to Attachment, Special Form of 539 CONTENTS. Xix t>i.OK EXAMINATlOlr OP A MaEEIED WoMAlf, Forms, and geaeral practice relating to 542 EXEMPLXFICAIION OP DeCJBIIE OE OesEB, Form of, and practice relating to ' 648 Sttbmissiost to Aebiteation, practice relating to 552 SUBSTITTTTION OP NaME OP OPPICIAI, MaNAGEB, practice relating to 554 EntEEINS STTaGBSTIOK ON THE PeOOEEDINGS, practice relating to 553 SirBSTrnjxios- op itext Fetend, practice relating to ... . .... 557 Oedee to Kevive, oe Sitpplemental Obdee, practice relating to 558 Appointing a Repkesbniative, practice relating to 560 Oedee to Sue oe Depend in FoEMi. Patjpebis, practice relating to 562 Oedee to change Soucitoe, practice relating to 563 Teanspeebing Catjses, practice relating to 566 DisMissAi OP Bill, 1. by Plaintiff 566 2. by Defendant 567 Eeuaeks on Yoluntary Answers 573 ExcHEaiTEE StriTS, practice relating to 574 EERATA. Page 73, line 29, for " if lie wishes to," read " cannot." 73, „ 30, jfor "may," read "upon or." 104, „ 27, /o«- 3 & 14 read X3 & 14. 146, last lime, for "an alternative" read "a special." 147, ijwes 1 and 2, /«• "an alternative " read "a special." 147, line 5, atriie out the words, "it is desirable that." 147) >> 6, /or " should nevertheless " read " can, upon default." 147, lints 6 and 7, /or " by way of service and demand &o." read "only. ' 147, line 8, for "irrespective of "read "in accordance with" and for "alternative" reod "special." 179, line 14, far 153 read 152. 191, „ 17, „ 180 „ 190. 354, page heading, for * Interpleader" read " Interrogatories." 463, note (/), line 1, far 449 read 450. 464, «Mie 3, for 408 reod 407. 554, „ 12, „ 369 „ 368. ADDENDA. The Author is enabled to add the point of practice involved in the decision (upon Appeal) in the case of I/yndsey v. Tyrrell, referred to on page 562. The following may, therefore, be appended to the observation at the bottom of such page:— " The case has now been decided, and the following is the point involved in the decision : — If it can be shown, by affidavit, that an Infant Plaintiff U unable to pro- cwre any substantial person to act for him as next friend, upon special application to the Court, an order may be made giving leave to sue by a next friend in form 4 pauperis. Lyndsey v. Tyrrell, 6 W. E. 143." Note. — The reader is particularly requested to introduce tbe above corrections into their proper places in the Work. PART I. 3)nttti3)ruttors* OFFICIAL ATTENDANCE AND VACATIONS OB- SEEVED IN THE KECOED AND WEIT CLEEKS' OFFICE. Days of Attendance. The Eecord and Writ Clerks' office is to be open every day of the year, except Sundays, Good Friday, Monday and Tuesday in Easter Week, Christmas Day, and All days appointed by proclamation to be observed as days of General Fast or Thanksgiving. Order 5, 8th May, 1845. Vacations. The Vacations to be observed in the Eecord and Writ Clerks' office are to be four in every year, viz. — The Easter Vacation, — which is to commence and termiaate on such days as the Lord Chancellor shall every year specially direct. The Whitsun Vacation, — ^which is to commence on the third day aftier Easter Term, and to ter- minate on the second day before Tri- nity Term in every year. • The Long Vacation, — ^which is to commence on the 10th day of August, and terminate on the 38th day of October in every year ; and FEES AND STAMPS. The Christmas Vacation, — which is to commence on the 24th day of December in every year, and terminate on the 6th day of the following month of January. _ e -u The days of the commencement and termination oi eacn vacation are to be included in and reckoned part of such vacation. — Order 8, 8th May, 1845. Sours of Attendance. During the before-mentioned vacations, from 11 o'clock till 1 o'clock. At other times, from 10 o'clock till 4 o'clock. FEES PAYABLE IN THE EECORD AND WRIT CLERKS' OFFICE. Fees are to he Paid by Stamps. The several fees payable in relation to proceedings in the Court of Chancery are to be collected, not in money, but by means of gtamps (a) denoting the amount of such fees, stamped or affixed at the expense of the parties liable to pay the fees on or to the vellum, parchment, or paper on which the proceed- ings in respect whereof such fees are payable are written or printed, or which may be otherwise used in reference to such proceeding. And where any of such fees shall be payable in respect of any matter or thing to be done by any officer or in any office of the court, and it shall not have been customary to use any written or printed document or paper in reference to such matter or thing whereon the stamp could be affixed, the pai-ty or his solicitor requiring such matter or thing to be done is to make application for the same by a short note or memorandum in writing, and a stamp denoting the amount of the fee so payable is to be stamped on or affixed to such note or memorandum. — Order 6, a5th October, 1853. Adhesive Stamps — how to be used. Stamps impressed upon adhesive paper are to be affixed by the parties requiring to use the same on the vellum, parch- ment, or paper on which the proceeding in respect whereof such stamps may be required is written, printed, or engrossed, (o) Stamps are proouratle in the oSBoe. FEES. 3 or which may be otherwise used in reference to such proceeding. —Order 2, 3rd December, 1852. Adhesive Stamps — how to he obliterated. The of&cer who shall receive any document to which a stamp shall be so (adhesively) affixed, is immediately upon the receipt thereof to obliterate or deface such stamp, but so as not to prevent the amount of the stamp from being ascer- tained, and no such document shall be filed or delivered out until the stamp thereon shall be obliterated and defaced as aforesaid. — Order 3, 3rd December, 1852. No Document to ie Filed or Received unless duly Stamped. No document which shall be required to have a stamp impressed thereon or affixed thereto shall be received or filed, or used in relation to any proceeding in the court, or be of any validity for any purpose whatsoever, unless or until the same shall have a stamp impressed thereon or affixed thereto in the manner directed by the general order of the Court. But if any such document which ought to have had a stamp impressed thereon or affixed thereto has, through mistake or inadvertence, been received or filed, or used, without having such stamp impressed thereon or affixed thereto, the Lord Chancellor may order that such stamp shall be impressed or affixed ; and when a stamp shall have been impressed on such document or affixed thereto, in compliance with such order, such document, and every proceeding in reference thereto, is to be as valid and effectual as if such stamp had been impressed thereon or affixed thereto in the first instance. —15 & 16 Vict. c. 87, s. 12. List of Fees. For making all office and other copies, per folio ..... For filing every bill or information For filing every claim For filing every special case Upon entering every appearance, if not more than three defendants . .070 070 If more than three and not exceeding six defendants . . . . . 14 14 And the same proportion for every like number of defendants. For every certificate . . . .040 040 B 2 Lower Scale. Higher Scale. 4 4 10 1 5 5 1 10 Loi rer Scale. Higlier Scale. 1 5 0. 1 6 5 10 * FEES. For marking every copy of a bill, claim, or summons to be served For every writ of summons, distringas, subpoena, or attachment . For sealing every other writ For every oath, affirmation, declaration, or attestation upon honour, except for the purpose of receipt of dividends from the Accountant-General . .016 016 For examining every copy or part of a copy of a set of interrogatories, and marking same as an office copy .010 060 Upon every application for a search for a record, and for searching . .030 020 Upon every application to inspect a record, and for inspecting the same .050 050 Upon every application to inspect ex- hibits, if occupied not more than one hour 050 050 If more than one hour, per diem . .0100 0100 Upon every application for the officer's attendance in courts of law per diem, and for his attendance, besides rea- sonable expenses of the officer .10 10 Upon every application for the officer's attendance in a court of equity, and for his attendance, per diem . .0100 10 Upon every application to swear an invalid, including the attendance, be- sides necessary expenses . . .0100 0100 For examining and signing inrolments of decrees and orders . . .300 300 For filing caveat against claim to revive, or against decree or order or inrol- ment 050 060 For filing supplemental statement or statement for revivor . . .050 10 For filing every affidavit, including schedules and exhibits For every application to inspect an affidavit . , . . . .006 For amending every record of a bill, claim, or special case ,. . .0100 0100 Schedule 3, Order 80th January, 1857. 2 6 2 6 6 LOWER SCALE OF FEES. 5 Stamps are procurable in the Eecord and Writ Clerks' office. Impressed, affixed, or adhesive stamps may be used. Cases in which the Lower Scale is Applicable and Payable. Solicitors are entitled to charge and be allowed the fees set forth in the column headed " Lower Scale," in the several cases following, unless the Court shall make other order to the contrary, that is to say, — Istly. In all suits by creditors, legatees (whether specific, pecuniary, or residuary), devisees (whether in trust or otherwise), heirs at law or next of kin, in which tlie per- sonal or real, or personal and real estate, for or against or in respect of which, or for an account or administration of which, the demand may be made, shaU be under the amount or value of 1000^. Sndly. In all suits for the execution of trusts in which the trust estate or fund shall be under the amount or value of 1000/. 3rdly. In all suits for foreclosure or redemption, or for enforcing any charge or lien, in which the mortgage whereon the suit is founded, or the charge or lien sought to be enforced, shall be under the amount or value of 1000/. 4thly. In all suits for specific performance, in which the purchase money or consideration shall be under the amount or value of 1000/. 5thly. In all proceedings under the Trustees' Relief Acts, or under the Trustee Acts, or under any of such Acts, in which the trust estate or fund to which the proceeding relates shall be under the amount or value of 1000/. 6thly. In all proceedings relating to the guardianship or maintenance of infants, in which the property of the infant shall be under the amount or value of 1000/. 7thly. In all proceedings by special case, and in all pro- ceedings relating to funds carried to separate accounts, and in all proceedings under any railway or private Act of Parliament, or under any other statutory or summary jurisdiction, and generally in all other cases where the estate or fund to be dealt with shall be under the amount or value of 1000/. In all other cases solicitors are entitled to charge and be allowed the fees set forth in the column headed "higher scale," unless the Court shall make other order to the contrary as to all or any of the parties. — Orders 3 and 3, 30th January, 1857. 6 LOWEE SCALE OP FEES — CERTIFICATE. The fees set forth in the column headed " lower scale " are to be paid in all cases in which the lower scale of fees is to be charged by and allowed to solicitors under the 2nd section of the Order, 30th January, 1857 ; and the fees set forth in the column headed " higher scale " are to be paid in all other cases. — Order 4, 30th January, 1857. AppUcaUlity of Lower Scale to be Certified. The solicitor or party instituting any proceeding in respect of which he claims to pay the fees of court according to the lower scale, is to file with the Clerk of Eecords and Writs a certificate in the form hereunder set forth, of which certificate the Clerk of Eecords and Writs is, at the request of any solicitor, or any party acting in person, in the suit or matter, to mark a copy. — Order 4, 30th January, 1857. FORM OF CERTIFICATE. No. 1. In Chancery. {Title of Cause or Matter.] I hereby certify that, to the best of my judgment and belief, the lower scale of fees of court is applicable to this case. — ^Dated, &c. A. B. of &c. Solicitor for — — . If it is not intended that the certificate or payment of fees thereunder shall "apply to the proceedings in the cause itself, but only to some interlocutory proceeding, — such, for instance, as a proceeding in respect of a separate account, — after the title of the cause add, " Exparte the account of ," or " on the petition of ," &c. On production of the copy of the certificate so marked as aforesaid, the officers of the court are to receive and file all proceedings in the suit or matter bearing stamps according to the lower scale. — Order 4, 30th January, 1857. Where Special Case filed. Where a special case is to be filed in which infants are con- cerned, and for whom special guardians are to be appointed and it is a case m which the lower scale of fees should be paid' VOUCHERS FOE FEES. 7 a certificate should be filed before drawing up the order for the appointment of the special guardian, and the certificate should be intituled as the order appointing the guardian will be intituled. On filing the special case another certificate should be filed, intituled in the cause. In the case of a firm, one member may sign the certificate ; but if he signs his own name only, and not the name of the firm, he should sign thus : — For self and partners, of &c." Withdrawal of Certificate. A certificate as to the lower scale of fees of court may be withdrawn, but either on or before taxation it will be necessary to reimburse to the fee fund the amount of fees which may have been remitted under the use of the certificate. The usual mode of withdrawing or abandoning the certificate is by notice to the Clerks of Records and Writs. Such notice may be in the following form : — No. 2. In Chancery. I hereby give you notice that it is my intention to abandon, and I do hereby abandon, the use of the certifi- cate as to the lower scale of fees of court filed by me in this cause on the day of , and I hereby withdraw the same. Dated this day of , of &c. As to Vouchers far Fees paid. No vouchers are given on payment- of fees ; but in cases where, upon taxation of costs, the taxing masters require that the payment for office copies, or of any other official fee, shall be vouched, and the office copies cannot be produced, or other evidence cannot be afforded, if the office copy was taken from, or the fee paid in, the Record and Writ Clerks' office, a voucher wUl be given upon request. If a copy of the bill of costs can be produced, the authenticating seal used in the office will be stamped over against the item in question. If a copy of the o ALLOWANCE OF SPOILED STAMPS. bill of costs cannot be produced, a memorandum will be given in the following form, viz. : — No. 3. Office copy affidavit of , filed the day of , taken by Messrs ■ Folios . And such memorandum is stamped with the authenticating stamp before referred to. Allowance of Spoiled or Useless Stamps. In some cases, where a stamp intended to be used in the Eecord and "Writ Clerks' office has become spoiled or useless, the Clerks of Eecords and Writs will certify for an allowance, and upon the production of such certificate alone, such stamp will be allowed at the Stamp Office, the Commissioners returning to the party the amount of the stamp, or other stamps of the same amount in value, as the party may desire. The following may be regarded as one of those cases in which the Clerks of Eecords and Writs will give such certifi-. cate : — Where a writ has been made out for a particular purpose, but impressed with a wrong amount of stamp, and another writ for such purpose, duly stamped, has been sealed. The form of certificate given in such a case would be as follows : — No. 4. This writ, not being duly prepared, could not be sealed, and the stamp, 5s. [or as the case may be], impressed thereon has become spoiled and useless. Another writ, duly stamped, has been sealed. I certify that this is a case for allowance. [Signature of Record and Writ Clerk.] INDOESEMENT OF NAME AND ADDEESS ON PEOCEEDINGS. TFhere the Party sues or defends hy a Soliaitor. Every solicitor of a party suing or defending by a solicitor shall cause to be indorsed or written upon every writ which he INDORSEMENT OF NAME, ETC., ON PEOCEEDINGS. 9 shall sue out, and upon every information, bill, demurrer, plea, answer, or other pleading or proceeding, and all exceptions which he may leave with the Clerks of Records and Writs to be filed, and upon all instructions which he may give to the Clerks of Records and Writs for any appearance or other purpose, his name and place of business, and also (if his place of business shall be more than three miles from the Record and Writ Clerks' office), another proper place (to be called his address for service), which shall not be more than three miles from the said office, where writs, notices, orders, warrants, and other documents, proceedings, and written communica- tions may be left for him ; and where any such solicitor shall only be the agent of any other solicitor, he is to add to his own name or firm and place of business, the name or firm and place of business of the principal solicitor. — Order 17, 26th October, 1843. Where the Party sues or defends in Person. Every party suing or defending in person shall cause to be indorsed or written upon every writ which he shaU sue out, and upon every information, laill, demurrer, plea, answer, or other pleading or proceeding, and aU exceptions which he may leave with the Clerks of Records and Writs to be filed, and upon all instructions which he may give to the Clerks of Records and Writs for any appearance or other purpose, his name and place of residence, and also (if his place of residence shall be more than three miles from the Record and Writ Clerks' office) another proper place (to be called his address for service), which shall not be more than three miles from the said office, where writs, notices, orders, warrants, and other documents, proceedings, and written communications may be left for him.— Order 20, 26th October, 1842. An agent cannot act as such in filing a bill or defendiug a suit for a solicitor who resides out of the jurisdiction. Two distinct firms of solicitors may act, as being concerned for a party. If such solicitors act by an agent, one agent only can act. If they act as being properly concerned, then, in addition to their own respective addresses, an address for service must be given. But two solicitors, or two distinct firms, who have appeared separately for certain defendants, cannot file a joint answer on behalf of such defendants. The indorsement of the name, &c., of one solicitor or firm only is allowed, and if such an 10 SERVICE OP NOTICES, ETC. — ON SOLICITORS. answer is to be filed, one or other of the solicitors must obtain an order to change. If a solicitor or party changes his residence or address for service, notice thereof should be given to the Clerks of Eecords and Writs, and also to each solicitor concerned in the cause. The notice may be in the following form : — No. 5. In Chancery. I hereby give you notice, that my address for service is now at . Dated this day of ■ To . \Narm of Solicitor or Party. '\ In Moye v. Batemcm, more particularly referred to under title " Change of Solicitor," the plaintiff, a married woman, suing by her next friend, obtained an order giving her liberty to sue in person and by her next friend, in the place and stead of acting by her solicitor. In that case the form in which the names and addresses were indorsed on or subscribed to all subsequent proceedings was as follows : — the plaintiff, and her next friend. In Person. Address for service at . SEEVICE OF NOTICES AND OTHER DOCUMENTS. Not requiring Personal Service. On Solicitors. Where the party sues or defends by a solicitor, and no address for service of such solicitor shall have been indorsed SERVICE OF NOTICES, ETC. — ON PARTIES. 11 or added pursuant to the directions of Order 17, 26th October, 1842, all writs, notices, orders, warrants, and other documents, proceedings, and written communications not requiring per- sonal service upon the party to be affected thereby, shall, unless the Court shall otherwise direct, be deemed sufficiently served upon the party if served upon his solicitor at his place of business. But if an address for service of such soli- citor shall have been indorsed or added as aforesaid, then all such writs,, notices, orders, warrants, and other docu- ments, proceedings, and written communications, shall be deemed sufficiently served upon such party if left for his solicitor at such address for service. — Order 19, 26th October, 1842. On Parties suing or defending in Person. Where the party sues or defends in person, and no address for service of such party shall have been indorsed or written pursuant to the dkections of the 20th Order, 36th October, 1842, and in cases where any party has ceased to have a solicitor, all writs, notices, orders, warrants, and other docu- ments, proceedings, and written communications not requiring personal service upon the party to be affected thereby, are, unless the Court shall otherwise direct, to be deemed to be sufficiently served upon the party, if served upon him per- sonally, or at his place of residence. But if an address for service of such party shall have been indorsed or added as aforesaid, then all such writs, notices, orders, warrants, and other documents, proceedings, and written communications, are to be deemed sufficiently served upon such party if left "for him at such address for service. — Order 21, 26th October, 1812. On Parties who have not appeared. The plaintiff may, without special leave of the Court, serve any notice of motion, or other notice, or any petition, personally, or at the dwelling-house or office of any defendant who, having been duly served with process to appear, has not caused an appear- ance to be entered by his solicitor at the time for that purpose limited by the general orders of the Court. — Order y, 11th April, 1842. Whenever a person who is not a party appears in any pro- ceeding, either before the Court, or before the Master (or Judge at chambers), service upon the solicitor in London by whom such party appears, whether such solicitor act as prin- cipal or agent, is to be deemed good service, except in matters 12 COMPUTATION OP TIMES OF PEOCEDUBE. of contempt requiring personal service. — Order 44, 3rd April, 1828. Ho0ES OF Sebvice. Service of all writs, notices, summonses, orders, warrants, rules, documents, and other proceedings not requiring per- sonal service upon the party to be affected thereby, is to be made before seven o'clock in the evening, except on Saturdays, when it is to be made before two o'clock in the afternoon : and if made after seven o'clock in the evening on any day except Saturday, the service is to be deemed as made on the following day ; and if made after two o'clock in the afternoon on Saturday, the service is to be deemed as made on the fol- lowing Monday. — Order, 2nd February, 1857. Or Documents eequieing Peesonal Seevice. Documents requiring personal service may be served at any hour of the day (on week days), and at any place within the jurisdiction of the Court. If the service is to be effected out of the jurisdiction of the Court, then as the Court may by special order direct. Substituted Seevice. Where substituted service is directed by an order of the Court, the service must be effected in strict accordance with the terms of the order. COMPUTATION OF TIMES OF PEOCEDURE. One day excluswe, the other inchisive. "When any limited time, from or after any date or event, is appointed or allowed for doing any act or taking any pro- ceeding, the computation of such limited time is not to include the day of such date, or of the happening of such event, but is to commence at the beginning of the next following day ; and the act or proceeding is to be done or taken at the latest on the last day of such limited time, according to such com- putation. — Order 11, 8th May, 1845. When limited hy " Months." When the time for doing any act or taking any proceeding COMPUTATION OF TIMES OF PROCEDUBE. 13 is limited by months, not expressed to be calendar months, such time is to be computed by lunar months of twenty-eight days each.— Order 12, 8th May, 1845. 8unday, or other Day on which the Offices are closed. When the time for doing any act or taking any proceeding expires on a Sunday, or other day ou which the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding is, so far as regards the time of doing or taking the same, to be held to be duly done or taken, if done or taken on the day on which the oflBces shall next open. — Order 13, 8th May, 1845. * Times of Vacation. The times of vacation are not to be reckoned in the compu- tation of the times appointed or allowed for the following purposes : — Amending or obtaining orders for leave to amend bills. Setting down pleas or demurrers. Filing replications, or setting down causes under the direc tions of Article 41 of Order 16, of 8th May, 1845 ; Order 14 (and Articles 1, 3, and 4), 8th Maj', 1845. Article 41, Order 16, 8th May, 1845, is to the following effect, viz. : — " If a defendant puts in an answer to amend- ments to which the plaintiff has not required an answer, the plaintiff must, within fourteen days after the filing of * such answer, either file his replication or set down the cause to be heard on bill and answer, unless in the mean- time he obtains from the Court a special order for leave to except to such answer, or to amend the bill. " Otherwise, any defendant may move to dismiss the bill for want of prosecution." Filing or setting down exceptions for scandal or insufficiency, in cases where the time is not limited by notice given pursuant to the 13th Order of 2nd November, 1850. — Order 4, 2nd November, 1850. Order 13, 2nd November, 1850, is to the following effect, viz. : — " A defendant, whose answer is excepted to, alleging that the plaintiff is prosecuting him in this court, and also at law for the same matter, may, by notice in writing, require the plaintiff to set down the exceptions within four days from the service of the notice." And if the plaintiff does not set down such exceptions within such four days, such defendant is entitled as of 14 " EEFERENCE," OR " DISTINCTIVE MAEK." course, on motion or petition, to obtain the usual order for the plaintiff to make his election in which court he will proceed. Where Order for Security for Costs obtained. The day on which an order that the plaintiff do give security for costs is served, and the time thenceforward until and including the day on which such security is given, is not to be reckoned in the computation of time allowed a defendant to plead, answer, or demur.— Order 15, 8th May, 1845. " EEFEEENCE," OR " DISTINCTIVE MAEK." Every decree, order, report, certificate, petition, and docu- ment, made, presented, or used in any cause {a) in the Court of Chancery, is to be distinguished by having plainly written on the first page of such decree, order, report, certificate, petition, and document, the date of the year, the letter, and the number by which the cause is distinguished in the Cause Book ^ept by the Clerks of Eecords and Writs. — Order 1, 30th November, 1855. The foregoing requirements do not apply to any cause com- menced before the first day of Michaelmas Term, 1853. — Order 4, 30th November, 1855. In giving the "reference," or " distinctive mark," the follow-, ing may be regarded as a form : — " 1853, C, No. 10." This would answer in the (supposed) case of a suit instituted in the year 1853, and in which the first plaintiffs surname begins with the letter C. The use of the "reference" by the practitioner will be found of mutual advantage both to himself and the officers of the court, as it will afford great facility in searching for records, and answering inquiries respecting causes. Every original bill which has been filed since the 28th of October, 1843, has been marked with the year, letter, and number. For the purpose, therefore, of facilitating searches and inquiries respecting any suit which has been instituted (a) In practice, the proviBions of this order ai-e likewise applied to "matters" originated by sumnjona. " KEFEEENCE," OE "DISTINCTIVE MAEK." 15 ince the 26th of October, 1843, it is desirable that the practitioner hould give the " reference " to the entry of such suit, and not nerely in respect of those which have heen instituted since he first day of Michaehnas Term, 1852, as required by Order 4, 10th November, 1855. In suits commenced by administration summons between he 29th of October, 1852, and the end of the year 1855, the ' reference " is not by year, letter, and number, but to the rolume and page of the book in which such summonses were intered in the Eecord and Writ Clerks' office ; and such ' reference " can be ascertained by searching under the sur- lame of the deceased person whose estate is to be administered, n the second alphabetical index contained in a printed list cept in the Eecord and Writ Clerks' office, and open to nspection. Since the 1st day of January, 1856, suits by administration summons have been indexed by the name of the person whose istate is to be administered, and are distinguished by a " refer- mce," that is to say, by the year, letter, and number, in like nanner as other causes. Other summonses originating proceedings in chambers, luplicates whereof have been filed at the Record and Writ ZJlerks' office, are entered in the Cause Books under the eading title of the " Matter ; " and are distinguished by the ike " reference." PART II. BILL. No. 6. In Chanceey. Master of the Rolls, John Lee . . . Plaintiff. or James Styles ^ Lord Chancellor, and V . Defendants. Vice-Chancellor . Henry Jones J Bill of Complaint. To the Right Honourable , of , in the County of , Lord High Chancellor of Great Britain (a). Humbly (6) complaining, showeth unto his Lordship John Lee of Bedford Square, in the county of Middlesex, Esquire, the above named plaintiff as follows : — 1. The defendant James Styles being seized in fee simple of a farm called Blaekacre in the parish of A, in the county of B, with the appurtenances, did, by an in- denture dated the First of May, One thousand eight hun- dred and fifty, and made between the defendant James Styles of the one part, and the plaintiff of the other part, (a) Insert in these tlanks the names,, &c. of the Lord CSianccllor for the time heing. If the Great Seal is in the custody of a "Lord Keeper" or of "Lords Commissioners," the direction should be in the following form, viz. : ** To the Kieht Honourable , Lord Keeper of [or, Lords Commissioners for the custody of as the case maiy 6e] the Great Seal of the United Kingdom of Great Britain and Ireland." (6) If the plaintiff is a peer of the realm, omit the word "Humbly.'' FOEM OF BILL. 17 grant and convey the said farm with the appurtenances unto and to the use of the plaintiff, his heirs and assigns, subject to a proviso for redemption thereof, in case the defendant James Styles, his heirs, executors, administra- tors, or assigns, should on the First of May, One thousand eight hundred and fifty-one, pay to the plaintiff, his executors, administrators, or assigns, the sum of Five thousand pounds, with interest thereon at the rate of Five pounds per centum per annum, as by the said indenture will appear. 2. The whole of the said sum of Five thousand pounds, together with interest thereon at the rate aforesaid, is now due to the plaintiff. 3. The defendant Henry Jones claims to have some charge upon the farm and premises comprised in the said indenture of mortgage of the First of May, One thousand eight hundred and fifty, which charge is subsequent to the plaintiff's said mortgage. 4. The plaintiff has frequently applied to the said defendants James Styles and Henry Jones, and required them either to pay the said debt, or else to release the equity of redemption of the premises, but they have refused so to do. 5. The defendants James Styles and Henry Jones pre- tend that there are some other mortages, charges, or in- cumbrances affecting the premises, but they refuse to discover the particulars thereof. 6. There are divers valuable oak, elm, and other timber and timber-like trees growing and standing on the farm and lands comprised in the said indenture of mortgage of the First of May, One thousand eight hundred and fifty, which trees and timber are a material part of the plaintiff's said security, and if the same or any of them were felled and taken away the said mortgaged premises would be an insufficient security to the plaintiff for the money due thereon. 7. The defendant James Styles, who is in possession of the said farm, has marked for felling a large quantity of 18 rOEM OF BILL. the said oak and elm trees and other timher, and he has by hand-bills, published on the second December instant, announced the same for sale, and he threatens and intends forthwith to cut down and dispose of a considerable quan- tity of the said trees and timber on the said farm. Peatee. The plaintiff prays as follows : — 1. That an account may be taken of what is due for principal and interest on the said mortgage. 2. That the defendants James Styles and Henry Jones may be decreed to pay to the plaintiff the amount which shall be so found due, together with his costs of this suit, by a short day to be appointed for that purpose, or, in default thereof, that the defend- ants James Styles and Henry Jones, and all persons claiming under them, may be absolutely foreclosed of all right and equity of redemption in or to the said mortgaged premises. 3. That the defendant James Styles may be restrained by the injunction of this Honourable Court from felling, cutting, or disposing of any of the timber or timber-like trees now standing or growing in or upon the said farm and premises comprised in the said indenture of mortgage, or any part thereof. 4. That the plaintiff may have such further or other relief, as the nature of the case may require (a). Names of defendants. The defendants to this Bill of Complaint are James Styles, Henry Jones [out of the jurisdiction], and (a) If any defendant is to be served witU a copy of the till, and thereupon to be bound by the proceedings in the cause, a clause should be introduced into the prayer. — See Order 23, 26th August, 1841. It may be placed immediately before the last paragraph, and in the following form, viz. : — "That the defendant — upon being served with a copy of this bill, may be bound by aU the proceedings in the cause." FORMAL COMMENCEMENTS OF BILLS, ETC. 19 Jolm Smith [to be bound by the proceedings upon service of a copy of this Bill] . Y. Y. Note. This Bill is filed by Messrs. and , of , in the county of , Solicitors for the above-named plaintiff. [Name of Counsel] . FORMAL COMMENCEMENTS OF INFORMATIONS AND BILLS. Infobmations. No. 7. In a Suit on behalf of the Crown. Informing, showeth unto his Lordship Sir , Knight, Her Majesiy's Attorney [or Solicitor] General, on behalf of Her Majesty, as follows : — No. 8. In a Suit by the Attorney- General of a Queen Consort. Informing, showeth unto his Lordship , Esquire, Attorney- General of Her Majesty the Queen Consort, as follows : — No. 9. In a Suit by a party imder the protection of the Crown, and interested therein. Informing, showeth unto his Lordship Sir , Knight, Her Majesty's Attorney-General, on behalf of Her Majesty, and [name, &c., or title of the other party interested], as follows : — No. 10. In a Suit by the Attorney -General without a Melator. Informing, showeth unto his Lordship , Her Majesty's Attorney-General, on behalf of Her Majesty, and humbly 2 30 FORMAL COMMENCEMENTS OF BILLS, ETC. complaining, showeth unto his Lordship the above-named plaintiff, as follows : — No. 11. In a Suit hy the Attorney-General, at the relation of a party interested therein. Informing, showeth unto his Lordship Sir , Kmght, Her Majesty's Attorney- G-eneral, at and by the relation of ,of , in the county of , and humbly complain- ing, showeth unto his Lordship the said , the above- named plaintiff, as follows : — No. 12. In a Suit at the relation of some person not particularly interested Informing, showeth unto his Lordship, Sir , Knight, Her Majesty's Attorney- General, at and by the relation of , of , in the county of , as follows : — No. 13. In a Suit hy the Attorney -General on behalf of a Lunatic. • Informing, showeth unto his Lordship Sir , Knight, Her Majesty's Attorney-General, on behalf of , of , in the county of , a lunatic, at and by the relation of , in the county of , gentleman, as follows : — Bills. No. 14. In a Suit where the Lord Chancellor is a Defendant. To the Queen's Most Excellent Majesty in Her High Court of Chancery, Most humbly complaining, show unto your Majesty your Majesty's most dutiful and loyal subjects of , in the county of , and , of , in tj^g county of , the above-named plaintiffs, as follows : FOEMAL COMMENCEMENTS OF BILLS, ETC. 21 No. 15. In a Suit by a Corporate Body. Humbly complaining, show unto his Lordship [insert the title of the Corporation] the above-named plaintiffs, as follows : — No. 16. In a Suit by an Official Manager. Humbly complaining, showeth unto his Lordship the official, manager of [name the Company], for and on behalf of the said t^ompany, the above-named plaintiff, as fol- lows : — No. V7. In a Suit on behalf of a Married Woman. Humbly complaining, showeth unto his Lordship , the wife of , of , in the county of — ^— (by , of , in the county of , her next friend), the above- named plaintiff, as follows : — No. 18. In a Suit by a Ma/rried Woman, whose Susband has been transported, or who has abjv/red the realm, or is an alien enemy {a). Humbly complaining, showeth imto his Lordship , of , in the county of , the wife of , late of the same place, who hath by due course of law been sen- tenced to transportation to parts beyond the seas, where he now is [or, who hath abjured the realm, or who is an alien enemy], the above-named plaintiff, as follows : — No. 19. In a Suit by an Infant. Humbly complaining, showeth unto his Lordship , of , in the county of , an infant under the age of (o) See Smith's C!h. Pr., 6th Ed., 1857, p. 1014. 22 FORMAL COMMENCEMENTS OF BILLS, ETC. twenty-one years (by , of , in the county of , his next friend), the above-named plaintiff, as follows : — No. 20. In a Suit on behalf of a Person of Unsound Mind, not found so hy Humbly complaining, showeth unto his Lordship , of , in the county of , a person of unsound mind (not found so by inquisition), by , of , in the county of , gentleman, his next friend, the above- named plaintiff, as follows : — No. 21. In a Suit on behalf of a Ltmatie, by his Committee. Humbly complaining, show unto his Lordship , of -, in the county of , and , late of , in the county of , but now of , in the county of [against whom a commission of lunacy has been lately awarded and issued, and is now in force, and under which said commission the said was duly found and declared to be a lunatic, and the said ■- — - appointed committee of his estate], the above-named plaintiffs, as follows : — No. 22. Form of the commencement of a Su^lemental Bill. Humbly complaining, showeth unto his Lordship, of , in the county of , the above-named plaintiff, as follows : — 1. In or as of Term, 1853, the above-named plain- tiff filed his original bill of complaint in this Honourable Court [which was afterwards amended pursuant to an order dated the day of , and when so amended was] against defendant thereto; and the said bill, amongst other things stated, as the facts were, that, &c. PRINTED BILL — WBITTEN BILL. 23 Practical Directions. Bills are to be in a form similar to the foregoing form, and as set out in schedule B to the Orders of 7th August, 1853. See Order 14, of those orders. See also 15 & 16 Vict. c. 86, s. 10. Bills are to be printed on writing royal paper, quaito, in pica type, leaded; and the copy to be filed is to be inter- leaved with paper of the same description. — Order 1, 7th August, 1852. And the Clerks of Records and Writs are to receive and file a printed bill in like manner as they heretofore received and filed an engrossment of a bill. — 15 & 16 Vict. c. 86, s. 1. Dates and sums may be printed in figures, and the Ijill will be received and filed, notwithstanding tiiat in setting forth the names of the parties, the Christian names are omitted. If a bill has been inadvertently filed without the name of counsel, an order, as of course, may be obtained, giving leave to add such name. Counsel, though plaintiff in the suit, may nevertheless sign the bill. The Clerks of Records and Writs may receive and file a written copy of any bill praying a writ of injunction, or a writ of ne exeat Regno, or filed for the purpose, either solely or among other things, of making an infant a ward of court, upon the personal undertaking of the plaintiff or his solicitor, to file a printed copy of such bill within fourteen days. And a written copy of such bill, duly stamped and indorsed, may be served on any defendant thereto. — 15 & 16 Vict. c. 86, s. 6. The undertaking to file a printed copy of the bill may be in the following form : — No. 23. In Chanceet. I hereby undertake to file a printed copy of this bill within fourteen days from the date hereof. Dated this day of . [Name of Plaintiff, or of Ms Solicitor.] The undertaking may be either indorsed on the copy of the bill to be filed, or written on a separate sheet or slip of paper. 24 BILL. In cases where a written copy is filed, the copy for filing should be written on paper of the same size 'and quality as is required in the case of a printed copy. It may, however, he observed, that written hills otherwise copied wiU not he refused. The Clerks of Eecords and Writs are, at the expiration of the fourteen days from the filing of the written copy of a bill to take off the file, without further order, the copy so filed, unless a printed copy thereof shall in the meantime have been filed.— Order 3, 7th August, 1853. It is the practice in the Eecord and Writ Clerks' office, in cases where the printed copy is not filed in due time, to take the written copy off the file on the fifteenth day. But such written copy, though taken off the file, is not destroyed. And in some cases the Court will direct the bill to be restored to the file, and that the printed copy may be filed as on the last of the fourteen days, or notwithstanding the time limited by the general orders has expired. A memorandum to that effect, signed by the registrar, is usually indorsed on the printed copy : no order is drawn up. - The printed copy, when filed, must be a copy of the written bill as it stands at the time the printed copy is filed. So that if, during the fourteen days, or before the printed copy is filed, the written copy shall have been amended, the printed copy, when filed, must he a copy of the written bill as amended. The copy of a bill to he filed, whether written or printed, must be stamped with either a 1^. (higher scale), or a 10s. (lower scale). Chancery fee fund stamp. — Schedule 3 to Orders, 30th January, 1857. In cases where a written copy has been filed in the first instance, no stamp is required on the printed copy afterwards filed pursuant to undertaking. Both the written and printed copies remain together on the file. Every original bill is, at the option of the party on whose behalf it is filed, to he distinctly marked near the top or upper part thereof, either with the words " Lord Chancellor," or with the words " Master of the Eolls " (Order 1, 5th May, 1837) ; and where the cause is to be marked for a Vice-Chan- cellor, there must be written — ^but still at the option of the party — underneath the words " Lord Chancellor," the title of one of the Vice-Chancellors, and the cause is thenceforth, unless removed by some special order of the Lord Chancellor, to be attached to such Vice- Chancellor's Court. — Order 1 17th November, 1841. ' BILL. 25 The Clerks of Eecords and Writs are not to file any original biU which shall not be so marked. — Order 1, 5th May, 183.7. If, through inadvertence, the bill as printed is not marked for a Judge, the name of the Judge for whom it is to be marked, and to whose court the cause is to be attached, may be inserted in writing. With this exception the whole of the bill mtist be printed. And this rule, with the exception referred to, has been enforced by a notice, sanctioned by the Master of the RoUs, and dated 1st February, 1856, whereby it is directed that no bill with alterations made, otiierwise than with type, shall be received and filed as a printed bill. A printed copy, avith written alterations, may, however, be filed as a written copy, provided the prayer of the bill is such as to justify the reception and filing of a written copy. The restrictive rule referred to does not apply to indorse- ments on hills. Indeed any indorsement at all upon the copy of the bill which is filed is altogether superfluous. Where a bill is filed on behalf of a peer of the realm, of a corporate body, or of an infant, msirried woman, or person of unsound mind, suing by a next friend, it is not essential that the address of such peer, corporate body, infant, married woman, or person of unsound mind should be set forth, but the address of a next Mend must be set forth. In any case in which it may be desirable to refer to a map or plan, &c., instead of annexing it to the bUL, a statement may be introduced into such part of the bill as may be deemed convenient or proper, and may be in the following form : — No. 24. A true copy of which said map [or plan, &c., as the case may be\ is deposited with the Clerk of Records and Writs at the time of filing this bill, and to which said map [or plan, &c.] the said plaintiff craves leave to refer. The preceding observations in this note are, in almost every respect, as applicable to informations as to bills. The copy of an information to be filed must bear the signa- ture of the Attorney- General. If on amending an information it becomes necessary to file a new copy, the signature of the Attorney- General is again required to such new copy; but if the amendments can be 26 BILL — AUTHOEITT OF NEXT FEIEND. introduced into the original record, the signature of the Attor- ney-Jreneral to the draft amended information is sufficient. Before the name of any person is used in any suit to be instituted in the court, as next friend of any infant, married woman, or other party, or as relator in any information, such person is to sign a written authority to the solicitor for that purpose; and such authority is to be filed with the bUl, in- formation, or claim. — 15 & 16 Vict. c. 86, s. 11. Such authority may be in the following form : — No. 25. In Chanceet. l_Title of the Suit or proceeding.'] I hereby authorise you to lise my name as the next friend of the plaintiff herein (a). To [Name of SoKdtor.'] [Name of next friend or relator.] Where the p«rty giving the authority makes his mark, instead of signing his name, the attestation of a witness is necessary. The attestation may be in the following form, viz. : — " Witness to the mark of the said of, &c." A person cannot be allowed to act as next friend, where he himself is not sui juris, or where his interest in the subject matter of the suit, or proceeding is adverse to that of the party whom, as next friend, he would represent; so that, as a rule, a defendant cannot properly act as next friend of a plaintiff. See Smith's Ch. Pr. 6th ed., 1857, p. 176; see also Daniell's Ch. Pr., 3rd ed., 1857, vol. i. pp. 74, 80, 88, 106. Where the interest of a married woman is such as to render it desirable or necessary, she may sue by a next friend, not- withstanding her husband is also a plaintiff. For cases in which an infant or married woman may (o) In the CMe of an information, say: — "Aa the relator to the information herein." In the case of a summons originating proceedings in Chambers (an authority being required in all cases where the application is on the part of an infanj; te. by a next friend), say : — "As the next friend of the applicant herein." ' "' BILL INTEEPLEADEB, AND DISCOVEET OF DEED. 27 sue by next friend in formd, pauperis, see " Suing in formA pauperis." If a married woman has obtained liberty to sue in formd pauperis, and without a next friend, the order, giving her liberty thus to sue must be produced to the officer at the time the bill is presented for filing. In interpleader suits, an affidavit as to no collusion must be made by the plaintiff, and filed with the bill, No stamp for filing the affidavit need be affixed. For forms of affidavits, see « Affidavits." A copy (not necessarily an office copy) of the affidavit should be sealed at the Record and Writ Clerks' office, and annexed to each copy of bill sealed for service. The bill may be either referred to iu the affidavit, as an exhibit, or as being thereimto annexed. In either case the affidavit must be filed with the bill, and may be sworn to before the bin is actually filed. If there be several plaintiffs, all the plaintiffs must join in the affidavit. However, in Gibhs v^ Gibbs — 1857, G, No. 35 — ^where the plaintiffs were co-partners, the Lords Justices permitted an affidavit to be filed, although it was not sworn to by aU the plaintiffs, but required that the affidavit should afford a satis - feetory explanation why the other members of the firm did not join in the affidavit. For the form of affidavit made in that case, see " Affidavits." In the case next cited, an injunction case, the Coiirt per- mitted a bill of inierpleader to be filed, with an affidavit made by the plaintiff's solicitor; such permission, however, only availed for the purposes of the motion. The affidavit of the plaintiff must therefore be procured and filed without delay, otherwise a demurrer may be filed to the bill. In Larabrie v. Broum — 1857, L, No. 43 — the plaintiffs prayed for an injunction to restrain the defendant from taking a sum of money out of the Court of Queen's Bench. The jSaintiffs were abroad, and an affidavit sworn to by them could not be procured and filed in time for the motion. On the 33rd of April, 1857, the Lord Chancellor, sitting with the Lords Justices, gave leave to file the biU with the affidavit of the plaintiffs' solicitor annexed. For the form of the affidavit made in such case, see " Affidavits." By leave of the Judge, the affidavit of the plaintiffs was afterwards filed and annexed to the bill, as of the day on which the bill was filed. No order was drawn up : the registrar's indorsement on counsel's brief was acted' on upon each occasion. 28 BILL — SUPPLEMENTAL, ETC. In another case, where the plaintiffs were sheriffs, and felt some hesitation in making the affidavit as to no collusion, they having no personal knowledge of the circumstances, the Court, nevertheless, said that the affidavit should be sworn to by them ; but that, in that case, the affidavit might be filed vrith the biU, notwithstanding it might be sworn to by one of the sheriffs only. The permission thus given has not, however, yet been acted on. Where a bill is filed for the discovery of a deed, it is neces- sary that an affidavit as to non-possession of the deed should be made by the plaintiff, and annexed to and filed with the bill. For form of Affidavit, see "Affidavits." The affidavit required to be filed with a bill of interpleader, or for discovery of a deed, may be printed, but it must be intituled in the cause in like manner as affidavits otherwise prepared. For further information as to the cases in which the bill should be accompanied by an affidavit, see Daniell's Ch. Pr. 3rd ed. Vol. I. pp. 271 to 274. It is not necessary to insert in the title of a supplemental bUl or bill of revivor the title of the original bill, nor is it necessary to mark a bOl of revivor or supplemental bill vrith the name of a Judge. A supplemental bill or bill of revivor, to be filed in any suit in which the original bill was filed before 2nd November, 1852, must be printed in like manner as an original bill filed since that date. A supplemental bill or bill of revivor should accurately set forth the date of the filing of the original bUl, also the names of the parties thereto, especially of the first-named plaintiff and defendant. Where, in a bill, the plaintiff prays that the bill may " if necessary " be taken as supplemental, such biU will be filed as an original biU, in the nature of a supplemental bill, it being left to the Court to determine whether it is or not necessary that it should be taken as supplemental. Where it is intended that the bUl should be filed as a sup- plemental bill, at the commencement of the bill the words " Supplemental Bill of Complaint " should appear, and the prayer should distinctly ask that the bill may be taken as supplemental, &c. INDORSEMENT ON COPY BILL. 29 INDOESEMENT ON COPIES OF BILLS SEALED FOE SEEVICE. No. 26. Where the Copy of the Bill is to be served within the Jurisdiction of the Court. ViCTOEIA E. To the wilMn-named defendant greeting. We command you [" and every of you " where there is more than one defendant] tliat within eight days after service hereof on you, exclusive of the day of such service, you cause an appearance to he entered for you in our High Court of Chancery to the within hill of complaint of the within - named , and that you ohserve what our said Court shall direct. Witness ourself at Westminster, the day of , in the year of our reign. Note. — If you fail to comply with the ahove directions you will be liable to be arrested and imprisoned (a). Appearances are to be entered at the Eecord and Writ Clerks' office. Chancery Lane, London. No. 27. Where the Copy of the Bill is to he served out of the Jurisdiction of the Court. Victoria E. To the within-named defendant greeting. We command you [" and every of you," where there is more (a) If the copy is to be seryed upon or for a corporate tody, say — " If you fail to comply with the ahove directions yon will be liable to hare yonr lajids and tenements, goods and chattels, distrained upon and other proceedings against yon." If the copy is to be served with letter missive and petition upon a peer, no indorsement at all is required ; but if, default being made in appearing, it becomes necessary to serve any such defendant with a second copy of the bill, in like manner as heretofore with a subpoena, then the indorsement must be made on such second copy, being varied in the note as follows : — "If you feil to comply with the above directions you will be liable to have your estate sequestered and other proceedings against you." 30 COPY BILL — SEALING FOB SERVICE. than one defendant], that within [insert the time limited for appearing as fixed by the special order giving leave to serve the copy of the hill out of the jurisdiction] after service hereof on you, exclusive of the day of such service, you cause an appearance to be entered for you in our High Court of Chancery to the within bill of complaint of the within-named (a), and that you observe what our said Court shall direct. Witness ourself at West- minster, the day of , in the year of our reign. Note. — If you do not cause your appearance to be entered within the time limited above, the plaintiff will be at liberty to enter an appearance for you, at your ex- pense (b), and you wiU be subject to such process as the Court shall award, and to have such order or decree made against you as the Court shall think just upon the plaintiff's own showing. Appearances are to be entered at the Eecord and Writ Clerks' office. Chancery Lane, London. A defendant is to be served with a printed bill of com- plaint, with an indorsement thereon, in the form or to the effect set out in the schedule to the Act 15 & 16 Vict., c. 86, with such variations as circumstances may require ; such printed bill so to be served being previously stamped at the Record and Writ Clerks' office wilii a stamp indicating the filing of such bill of complaint, and the date of the filing thereof. — 15 & 16 Vict. c. 86, s. 3. The indorsement on a copy of a bill sealed for service may be either wholly or partially in writing, and must be tested as of the day on which it is sealed. In cases where a written bill is filed, a written copy of such bill stamped and indorsed as aforesaid may be served on any defendant thereto, and such service is to have the same effect as the service of a printed copy. — 15 & 16 Vict. c. 86, s. 6. ( . . . Defendants. Henry Jones, J Interrogatories for the examination of the above-named defendants in answer to the plaintiff's bill of complaint. 1. Does not the defendant Henry Jones claim to have some charge upon the farm and premises comprised in the indenture of mortgage of the 1st of May, 1850, in the plaintiff's bill mentioned ? 3. What are the particulars of such charge, if any, the date, nature, and short effect of the security, and what is due thereon ? 3. Are there or is there any other mortgages or mort- gage, charges er charge, incumbrances or incumbrance, in any and what manner affecting the aforesaid premises, or any part thereof ? 4. Set forth the particulars of such mortgages or mort- gage, charges or charge, incumbrances or incumbrance the date, nature, and short effect of the seciu-ity ; what is PREPARATION OF INTERROGATORIES. 35 now due thereon; and who is or are entitled thereto respectively ; and when and by whom, and in what manner every such mortgage, charge, or incumbrance was created ? Note. — The defendant James Styles is required to answer all these interrogatories. The defendant Henry Jones is required to answer the interrogatories numbered 1 and 2. Y. Y. \_Name of Counsel.'] The plaintiff in any suit commenced by bill must, if he requires an answer from any defendant thereto, file, in the Becord and Writ Clerks' office, interrogatories for the exam- ination of the defendant or defendants, or such of them from whom he requires an answer, and deliver to the defendant or defendants so required to answer, or to his or their solicitor, a copy of such interrogatories, or of such of them as shall be applicable to the particular defendant or defendants (15 & 16 Vict. c. 86, s. 12) ; and such interrogatories are to be in a form similar to the form set out in schedule C to the General Orders, 7th August, 1852. The copy to be filed must be engrossed on parchment, and in words at length, except as to quotations, and indorsed with the name, &c., of the plaintiff or his solicitor. No stamp need be affixed, as no fee is payable for filing. The interrogatories should be so intituled in the cause as to be in strict agreement with the names of the parties as they appear in the bill at the time the interrogatories are filed ; and that part of the heading commencing " Interrogatories for the Examination of," &c., and the note at the foot, specifying which of the interrogatories the defendants, or any particular defen- dant, is required to answer, must so agree as that no defendant shall be included in the one who is not also included in the other. A second set of interrogatories to the same bill may be filed without order, but not as against defendants previously inter- rogated ; for instance, if a plaintiff files interrogatories for the examination of two or more of several defendants in answer to the original bill, and afterwards desires to interrogate the other defendants to tiie same bill, he may file a second set of inter- rogatories for the examination of such other defendants. It may, however, be observed, that if the interrogatories first D 3 36 FILING AND DELrVERING INTERKOGATOBIES. filed have not been answered, the plaintiff may, under an order to amend, amend the interrogatories so as to require thereby an answer from such other defendants. But the order to amend must express the object ; and the defendants, as against whom the interrogatories were first filed, must be served with a copy of the interrogatories as amended. Time for Filing. The interrogatories to be filed by the plaintiff for the exam- ination of any defendant or defendants are to be filed within eight days after the time limited (a), for the appearance of such defendant or defendants (Order 16, 7th August, 1852); in other words, within sixteen days fi:om the service of the bill on any such defendant, the time for appearing being limited by the service of the biU. After such time, interrogatories can only be filed by special leave of the Court. — Order 20, 7th August, 1852. The general order says that such leave is " to be applied for upon notice of motion ; " but in practice such orders are obtainable upon summons at chambers. If the plaintiff intends to require an answer from the defen- dant, he should file the interrogatories in due time, notwith- standing a demurrer may have been filed. Otherwise, by delaying to file the interrogatories until the demurrer is dis- posed of, and perhaps overruled, the plaintiff may be compelled to obtain an order for leave to file them. In all cases where interrogatories are to be filed pursuant to special order, such order must be produced to the officer at the time they are presented for filing. Delivery (or Service) of Copies. Any copy to be sealed for delivery, should be written on paper — brief paper is commonly used — and in words at length, except as to quotations. A copy should contain only so many of the interrogatories as the particular defendant or defendants to or for whom it is to be delivered is or are required to answer. — Order 17, 7th August, 1858. The copy to be delivered is to be examined with the original (6), and the number of folios counted by the Clerks of (a) The practitioner must be careful to observe that the time for jUiiig the inter- rogatories is not within a limited time from the entry of an appearance, but from the time limited for appearing, that is, from the date of the set-vice of the copy of the bUl (b) No copy can be sealed for service unless it has been examined by the solicitor with the stationer in, the Record and Writ Clerks' office. DELIVEEY OF COPIES OF INTEEROGATOEIES. 37 Eecords and Writs, who on finding that such copy is duly stamped and properly written, ai-e to mark the same as an office copy. — Order 17, 7th August, 1852. Each copy to be sealed for service must be stamped, either with a 5s. (higher scale), or with a Is. (lower scale). Chancery fee fund stamp. — Sched. b. Orders, 30th January, 1857. Upon presenting any copy of interrogatories for sealing a prcedpe, in the following form, must be left with the officer. No. 30. In Chanceky. Seal one copy of interrogatories for delivery service]. Dated this day of . [Name, 8fc., of the Solicitor or Party presenting the Copy for Sealing.] One prcBcipe is sufficient for any number of copies sealed at the same time and in the same cause. Number of Copies required. The number of copies required is regulated by the appear- ances of the defendants. If the copies of the interrogatories are to be delivered before any appearance is entered, a copy should be made for and delivered to each defendant. If appearances have been entered, then one copy for delivery to each soHcitor, irrespective of the number of defendants for whom any such solicitor may be concerned, is sufficient. Time unthin which Copy to he Delivered and Mode of Delivery. If the defendant has appeared in person or by his own sohcitor within the time limited, — ^that is, within eight days after service of the biU, — the plaintiff is to deliver a properly written and duly stamped, examined, and sealed copy of the interrogatories to the defendant or to his solicitor, within eight days after the time allowed for appearing, — in other words, within sixteen days from the service of the bUl. — Order 17, 7th August, 1853. If the defendant has not appeared either in person or by his 38 DELIVEEY OF COPIES OF INTERROGATOBIES. own solicitor within the time allowed for appearing, and the plaintiff has filed interrogatories for his examination, the plaintiff may deliver a copy, so examined and marked as aforesaid, to the defendant at any time after the time limited for appearing and before appearance in person, or by a solicitor, or withm eight days after actual appearance in person, or by a solicitor. —Order 18, 7th August, 1853. The delivery of a copy of the interrogatories may be effected in the following manner : — If the defendant has not appeared, or has appeared in person, by delivery personally to such defendant, or to some adult inmate at the dwelling-house of the defendant. If the defendant has appeared by a solicitor, by delivery personally to, or at the office of, such solicitor. If by substituted service pursuant to special order, then in strict accordance with the terms of such order. The interrogatories may be filed with the bill. A copy of the interrogatories may also be delivered with the bill. The general orders of the Court contain nothng expressly to the contrary. Such orders, in terms, only limit the time mthin which the interrogatories are to be filed, and copy thereof delivered. Nevertheless, service of the interrogatories with the bUl is not recommended, nor does it prevail in practice, because thereby a defendant would be very much prejudiced in respect of time for answering, affording him only fourteen days altogether for consulting his solicitor, appearing, and answering. However, under such circumstances tiie defendant could no doubt easily obtain further time to answer, and it may, in some cases, be a matter of convenience, if not of advantage, to the plaintiff, to effect service of bUl and delivery of interrogatories at the same time. A copy of interrogatories sealed for delivery may be resealed at any time before delivery. No fee is payable on resealing, but an amended prescipe must be left with the officer who reseals the copy. For the practice as to amending interrogatories and deliver- ing copies thereof, see " Amendments." INTEEEOGATOKIES WITH CONCISE STATEMENT. 39 INTEEROGATOEIES, With Concise Statement Prefixed. No. 31. Mkd hy a Defendant for the Examination of a Plaintiff. In Chanceet. Between Plaintiff. and » Defendant. Interrogatories, with concise statement prefixed, filed by the above-named defendant, , for the examination of the above-named plaintifi', . Statement. \^Set forth concisely a " statement of the subjects on which a discovery is sought."'^ Inteeeogatomes. \_These are to he in paragraphs, numbered consecutively, as in Form No. 29.] Note. — [Similar to the Note at the foot of Form No. 29.] [Name of Counsel.] Any defendant in any suit, whether commenced by bill or by claim (but in suits commenced by bill, which the defendant is required to answer, not until after he shall have put in a sufficient answer to the bill), may, without filing any cross bill of discovery, file in the Record and Writ Clerks' office interroga- tories for the examination of the plaintiff, to which interrogatories is to be prefixed a concise statement of the subjects on which a discovery is sought, and may deliver a copy of such inter- rogatories to the plaintiff or his solicitor ; and such plaintiff is bound to answer such interrogatories in like manner as if the same had been contained iu a bill of discovery filed by the defendant against him on the day when such interroga- tories were filed, and as if the defendant to such bill of dis- covery had on the same day duly appeared ; and the practice of the Court with reference to excepting to answers for insuf- 40 FOEM OF ANSWEE. ficiency, or for scandal, is to extend and be applicable to answers put in to such interrogatories ; provided that in deter- mining the materiality or relevancy of any such answer, the Court is to have regard, in suits commenced by bill, to the statements contained in the original bill, and in the answer put in thereto by the defendant exhibiting such interrogatories for the examination of the plaintiff, and, in suits commenced by claim, to the statements therein, and in any affidavits which may have been filed either in support thereof or in opposition thereto. Provided also, that a defendant may exhibit a cross bill of discovery against the plaintiff, instead of filing interro- gatories for his examination. — 15 & 16 Vict. c. 86, s. 19. The manner of preparing such interrogatories for filing, and copies thereof for delivery, and the mode of delivery, are the same as in the case of interrogatories filed by a plaintiff for the examination of a defendant. See, therefore, the practical directions appended to the preceding form. No. 29. In practice a defendant is allowed to file interrogatories for the examina- tion of a plaintiff immediately after his own answer is filed. But if the plaintiff excepts to such defendant's answer for insufficiency, the answer of the plaintiff to the interrogatories filed by such defendant cannot be enforced until after the" expiration of fourteen days from the time when such defendant's answer shall be deemed or found to be sufficient. ANSWER. No. 32. In Chanceey. John Lee . . . Plaintiff. James Styles "^ and K . Defendants. Henry Jones J The answer of James Styles, one of the above- named defendants, to the bill of complaint of the above-named plaintiff. In answer to the said bill, I, James Styles, say as follows : — 1. I believe that the defendant Henry Jones does claim to have a charge upon the farm and premises com- FORMAL COMMENCEMENTS OP ANSWERS. 41 prised in the indenture of mortgage of the First of May, One thousand eight hundred and fifty, in the plaintiff's hill mentioned. 3. Such charge was created by an indenture, dated the First of November, One thousand eight hundred and fifty, made between myself of the one part, and the said de- fendant Henry Jones of the other part, whereby I granted and conveyed the said farm and premises, subject to the mortgage made by the said indentuire of the First of May, One thousand eight hundred and fifty, unto the defendant Henry Jones, for securing the sum of Two thousand pounds and interest, at the rate of Five pounds per centum per annum, and the amount due thereon is the said sum of Two thousand pounds, with interest thereon from the date of such mortgage. 3. To the best of my knowledge, remembrance, and belief, there is not any other mortgage, charge, or incum- brance, affecting the aforesaid premises. M. N. [N^ame of Counsel.] Formal Commencements of Answers. No. 33. Of Answer of one defendant. The answer of , one of the above-named de- fendants, to the bill of complaint of the above-named plaintiff. No. 34. Of Answer of two or more Defendants. The joint and several answer of and , two of the above-named defendants, to the bill of complaint of the above-named plaintiff. No. 35. Of Answer to an Amended Bill. The answer of , one of the above-named de- 42 rOEMAL COMMENCEMENTS OF ANSWERS. fendants, to the amended bill of complaint of the above- named plaintiff. No. 36. Of a Further Answer '(after exceptions for Insufficiency submitted to or aUov)ed). The further answer [or, second further answer, as the case may be] of , one of the above-named defendants, to the bill of complaint of the above-named plaintiff. No. 37. Of a Further Answer and Answer to Amendments at the same time. The further answer of the above-named , defend- ant, to the bill of complaint of the above-named plaintiff, and the answer of the same defendant to the amended bill of complaint of the said plaintiff. No. 38. Of an Answer to a secondly or thirdly Amended Bill. The answer of , the above-named defendant, to the secondly \pr, thirdly, as the case may be\ amended bill of complaint of the above-named plaintiff. No. 39. Of an Answer to Interrogatories with Concise Statement prefixed. The answer of , the above-named plaintiff, to the interrogatories with concise statement prefixed, filed by the above-named defendant, , in this cause. No. 40. Of an Answer of an Infant, or Person of Unsomd Mind, by his Cruardian ad Ktem. The answer of (an infant under the age of twenty-one years [or, a person of unsound mind, as the FORMAL COMMENCEMENTS OF ANSWERS. 43 case may be], by , his guardian), one of the above- named defendants, to the bill of complaint of the above- named plaintiff. No. 41. 0/ an Answer and Disclaimer. The answer and disclaimer of , one of the above-named defendants, to the bill of complaint of the above-named plaintiff. No. 42. Of an Answer of a Defendant who is a Quaker. The answer of (being one of the people called Quakers) (a), one of the above-named defendants, to the bill of complaint of the above-named plaintiff. No. 43. Of a Supplemental Answer. The supplemental answer of , one of the above- named defendants, to the bUl of complaint of the above- named plaintiff. No. 44. Of an Answer to two Bills in the same Cause. The answer of , one of the above-named defendants, to the original bill of complaint of the above-named plain- tiff, and also to the supplemental bill of the said plaintiff. No. 45. Of a Demurrer to part of the Bill and Answer to the Bemainder. The demurrer of , one of the above-named defend- ants, to part of the bill, and his answer to the remainder of the bill of complaint of the above-named plaintiff. (a) This maff be noticed in the affirmat, instead of in the title. 44 PEEPAEATION OF ANSWER. No. 46. Of an Answer and Examination to Interrogatories settled hy the Judge, or hy the Master. The answer and examination of to the interroga- tories exhibited by the above-named plaintiff for the exa- mination of the said , pursuant to the decree made in this cause, dated the day of . Answers are to be divided into paragraphs, numbered con- secutively, — each paragraph containing as nearly as may be a separate and distinct statement or allegation, — and may be in a form similar to the form set out in Schedule D, to the Orders. 7th August, 1852.— 15 & 16 Vict. c. 86, s. 14, and Order 31, 7th August, 1853. The answer may contain not only the answer of the defendant to the interrogatories filed for his examination, but also such statements material to the case as the defendant may think it necessary or advisable to set forth therein. — 15 & 16 Vict. c. 86, s. 14. Answers must be engrossed on parchment (on one side only), and in words at length, except as to quotations, and any schedule or document which it may be necessary to annex thereto must also be written or otherwise transcribed on parchment. No erasure is allowed. If any word or figure happens to be written upon an erasure, such word or figure should (before the answer is sworn) be crossed through with a pen, and interlined upon a part where there is no erasure. The answer should be intituled in the cause so as to agree with the names of the parties as they appear in the bill at the time the answer is filed. A defendant is not at liberty to correct or alter the name of a plaintiff, or of a co-defendant; and even if his own name is mis-spelt in the biU, his answer should be intituled in the cause as above suggested, and the correction of his own name should be made in that part of the answer which follows the title of the cause, thus : — " The answer of John Jones (in the bill by mistake called Wilham Jones), one of, &c." An answer may be engrossed on unstamped parchment. But in cases where the answer is to be sworn to by any of the PEEPARATION OF ANSWER. 45 defendants at the Record and Writ Clerks' office, such an amount of stamp must be affixed as will pay for the number of oaths to be administered at that office, viz.. Is. Gd. for each defendant. The name of counsel must appear upon the answer. But the name of counsel is not required to an answer and examina- tion to interrogatories settled by the Judge or the Master. The answer must be indorsed with the name and address of the solicitor or party filing it. The defendant should sign his name at the end of the body of the answer, and where there are schedules, at the end of each schedule also. The answer of ft Quaker may be shown to be such, either by a statement to that effect at the commencement of the answer, or by the insertion of words to that effect in the affirmat. If at the commencement of the answer the form of words would run thus : " I, the said , being one of the people called Quakers, do solemnly, sincerely, and truly declare and affirm as follows : — " An answer sworn to by a foreigner in his native language can only be filed with a translation annexed, and pursuant to order, which may be obtained upon petition as of course. The order is to the effect that (usually a public notary), may be at liberty truly to translate the answer of the petitioner, andthat he the said may be sworn to such translation, and that the same may be filed with the petitioner's answer. The order must be produced to the officer when the answer is pre- sented for filing. A foreigner may, however, though ignorant of the English language, put in an answer in such language, and in that case he is sworn to such answer through an interpreter. For form of oath, see " Jurats and Oaths." Where a married woman is defendant to a bill in which her husband is a plaintiff, she may plead answer or demur as a feme sole without order. But if her husband is also a defendant, her plea, answer, or demurrer, cannot be filed separately without an order giving her liberty thus to answer. And such order must be produced to or left with the, officer at the time the plea, answer, or demurrer is presented for filing. For the circumstances under which a married woman may be made a party defendant as a fime sole, and also for cases in which such a defendant may obtain an order to answer and defend, or be proceeded against separately from her husband, see Daniell's Ch. Pr. 3rd ed. 1857, vol. i., ch. 4, sec. 6. If a defendant, who was a spinster or widow at the time the 46 PEEPAKATION OF ANSWER. bill and interrogifttories were filed agamst her, marries before answering, she must either obtain an order for leave to answer separate from her husband, or answer jointly with her husbands Although the husband may not be named wpon the record as a defendant he may join in the answer ; and in such case the answer should be intituled thus : — No. 47. " The answer of and his wife, lately and in the bill caUed spinster [or, widow, as the case may be], to the bill of complaint of the above-named plaintiff." The plea, answer, or demurrer of an infant, or person of unsound mind, cannot be filed until a guardian ad litem has been appointed. A lunatic usually answers by his committee, who is invariably co-defendant with the lunatic. But in cases where the com- mittee has an interest adverse to that of the lunatic, the lunatic must answer by guardian. If it appears to the satisfaction of the Court that any prisoner in prison for contempt in not answering is an idiot, lunatic, or of unsound mind, although no commission has issued, the Court is to appoint a guardian to put in his answer and discharge the defendant, providing for the costs in any of the ways pointed out by the Act 1st Will. 4, c. 36, as shall seem just ; and if the Court sees fit the defence may be made by such guardian m forma patiperis. — See Eule 9 of s. 15, of Act 1st Will. 4, c. 36. Where it is necessary to appoint a guardian ad litem, "such guardian must be appointed before the registrar will set down the cause for hearing. Where a guardian ad litem is also a party defendant, he need not sign the answer separately for himself and for the party for whom he acts as guardian. One signature is suf- cient ; however, if signed separately, it may be signed thus : — as Guardian of - An order appointing a guardian ad litem may be obtained upon petition as of course, the application being supported by an affidavit by the defendant's solicitor to the effect that the proposed guardian has, no interest in the matters in question FILING ANSWER WITHOUT OATH, ETC. 47 in the suit adverse to that of the infant, &c., therein, and that he is a fit and proper person to be appointed guardian. If the defendant's solicitor has not sufficient personal knowledge enabling him to make the affidavit as to the fitness of the party proposed to act as guardian, he must procure an affidavit to that effect from some other person. In the case of a person of unsound mind, in addition to the affidavit referred to, another affidavit by a medical man with respect to the incapacity of the defendant is also required. The attendance in court of an infant for the purpose of having a guardian ad litem assigned is not now required, the order being in all cases obtainable as before shown. "Where an infan* defendant has not appeared the Court will appoint a guardian for such defendant under Order 33, 8th May, 1845. See such order recited in the observations under title " Appearance at the instance of the plaintiff." If a married woman is under age, a guardian ad litem must be appointed for her before her answer can be filed, even though she answers jointly with her husband. An order appointiiig a guardian should be left for entry with the Clerks of Eecords and Writs. But if an answer is to be filed by the party on whose behalf the order is obtained, the order need not be left until the answer is presented for filing. An answer cannot be filed without oath, or without oath or signature, except tmder the authority of an order : such order may be obtained upon petition as of course. If the order is to apply to the answer of an infant, it should express that the answer is to be filed "without the oath or signature of the guardian." If the answer is to be filed without oath, and the order is obtained upon the petition of the plaintiff, no consent is neces- sary. But if the defendant petitions for the order, the plaintiffs solicitor must subscribe his consent thereto. If the answer is to be filed without either oath or signature, the order may be obtained by the plaintiff, or by the defendant, but in either case the consent of the party not presenting the petition is requisite. An order to file the answer of an infant, &c., without path or signature, will not be acted on if such order is obtained pre- viously to the appointment of the guardian ad litem. So likewise an order to file the separate answer of a married woman without oath or signature, must not be obtained before the date of the order giving her liberty to answer separately. If an answer is to be filed without oath only, the signature of the defendant must be attested. The attestation may be 48 SUPPLEMENTAL ANSWER. written on the left hand side of the skin upon which the defendant's signature appears, and may he in the following form : — No. 48, " Witness to the signature of the Defendant . [Name and Address of the Witness.]" Any adult person may attest the signature of the defendant. Sometimes, after an answer has been sworn, it is discovered that there is some erasure, or that the title of the cause is incorrectly set forth, or that the commissioner before whom it was sworn has not authenticated all the alterations, or that there is some omission or defect in the jurat, — in any such case, if the plaintiff will consent, an order may be obtained as of course to the effect that such aftswer may be filed " notwith- standing [specifying the defect], and without the same being resworn ;" or the plaintiff' or his solicitor may indorse the consent upon the record of the answer itself. The giving of any such consent does not operate as a waiver of the right to except to the answer for insufficiency or for scandal, but it might affect an indictment for perjury. In some instances, therefore, it would perhaps be well for the plaintiff's solicitor to see the answer before giving the consent, as is usual in cases where the plaintiff's consent is required to obtain an order to put in an answer without oath or signature. An order as of course may also be obtained for the purpose of adding the name of counsel, in cases where the answer has been inadvertently filed without such name. But where it is desired to correct or add to any statement in an answer which has been filed, it can only be done in the shape of a supplemental answer, to file which an order must be obtained. Several cases, showing the circumstances under which applications to the Court for leave to file supplemental answers may be made, are cited in Smith's Chancery Practice 6th ed., 1857, pp. 334, 335 ; also in Daniell's Ch. Pr., 8rd ed ' 1857, vol. i., pp. 623 to 635. The decision in the case of The Falkland Islands Company v. Lafone, more fully referred to under the title " Office Copies," seems opposed _ to the following suggestion. However, if any case should arise in which it may be thought desirable or proper not to annex a plan to an answer, but to refer to it as ANSWER OF OFFICIAL MANAGER. 49 being deposited with the Clerk of Records and Writs, a state- ment, in some such form as the following, might be introduced into such part of the answer as may be deemed most convenient : — " A true copy of which plan is deposited with the Clerk of Records and Writs, in whose division this cause is, at the time of filing this answer, and which said plan this defendant craves may be taken as part of this his answer." An answer will not be taken off the file except upon pro- duction of a special order. In the following cases, involvingu nusual circumstances, answers have been filed. In Saycock v. Mc Creight (formerly the London and County Assurance Company) — 1856, H, No. 176 — the bill and inter- rogatories had been filed against the Company ; before answer, proceedings were taken for the winding-up of the affairs of the Company, and an official manager was appointed; an order was thereupon made in the cause, directing that the name of the official manager (Mc Creight) should be substituted for that of the Company (a). The record of the bill and interrogatories remained unaltered, but the order, directing the substitution of the name of the official manager, was entered in the Cause Book kept by the Clerk of Records and Writs, and the. answer was afterwards filed, intituled thus : — No. 49. In Chancery. Between Flaintiff. William Henry McCreight,"^ the official manager of the Ue>»^«n^ London and County Assur- t *' ance Company, . . . .J The answer of WiUiam Henry McCreight, official manager of the London and County Assurance Company, one of the above-named defendants, to the bill of com- plaint of the above-named plaintiff. In answer to the said bill, I, the said William Henry McCreight, official manager of the London and County (a) Infomiatioji as to the mode of obtaming such order will be found in Part IX. 60 ANSWER OF PUBLIC COMPANY — PBINTED ANSWEE. Assurance Company, on behalf of myself and of the said Company, say as follows : — In Martin v. The West of England Mre and Life Insurance Company — 1856, M, No. 83 — the bill was filed against the Company and their Secretary. By the interrogatories an answer was required from all the defendants. The secretary alone answered " on behalf of himself and the Company." The answer was intituled thus : — No. 60. The answer of William Cann, the above-named defendant, Secretary of the West of England Fire and Life Insurance Company, for and on behalf of himself and the said Company, to the amended bill of complaint of the above-named plaintiff. In answer to the said bill, I, the said William Cann, say as follows : — In The Falkland Islands Company v. Lafone — 1855, F, No. 29 — the defendants obtained leave to file an answer engrossed on parchment, which answer consisted of concise paragraph^, referring to fuller statements in what was termed a " printed answer," and to such engrossment the " printed answer " was made an exhibit, but not annexed. The " printed answer " was also sworn to by the defendants. But, as will appear from the observations in the note under the title " Office Copies," the Court afterwards directed that the " printed answer " should be filed, and an office copy thereof taken, before replication could be filed. In the same case, the answer of the defendant S. F. Lafone had been prepared on paper, and sworn to in like manner as an affidavit. The Court directed that it should be filed as an answer ; a true copy of it, however, to be engrossed on parch- ment, and annexed to and filed with it. In Martin v. PurnelJr—im]., M, No. 100— a defendant died before having answered the bill. An order to revive was obtained against the representatives of the deceased defendant, under the Act 15 & 16 Vict. c. 86, s. 53. The record of the bill remained unaltered, and the executors answered so much of the bill as the deceased defendant had ANSWER BY EEPEESENTATIVE OP DECEASED DEFENDANT. 51 been required to answer. The answer was filed by direction of the Lords Justices of Appeal, and was intituled thus : — No. 51. In Chancery. \_Title of the cause, the names of the parties being taken from the Mil, merely adding, after the name of the defendant who had died, the words " since deceased."'] The joint and several answer of (the execu- tors of the above-named defendant , since deceased, and against which said executors this suit has been revived by order, dated the day of ), to the bill of com- plaint of the above-named plaintiff. It should be mentioned that, in the case just noticed, the executors were willing to answer. In another case, Minn v. Stant — 1848, M, No. 44 — involving circumstances of a similar character, an order to revive was obtained, dated 15th January, 1853, but it was found that the plaintiff could not compel an answer to the bill from the representative of the deceased defendant without filing a bill of revivor. . Upon the application of the plaintiff, the order to revive was discharged by an order dated 30th May, 1853 ; and thereupon a bill of revivor was filed, by the prayer of which the executrix was required to " answer so much of the supplemental bill as the deceased defendant was required to answer." The answer was afterwards filed, and intituled thus : — No. 53. [Title of Supplemental Bill and Bill of Revivor.'] The answer of Mary Stant, widow, the above-named defendant, to the bill of revivor of the above-named plaintiffs, and also to the supplemental bill of the said plaintiffs. In Lyons v. Read — 1856, L, No. 39 — an answer, prepared as the answer of several defendants, but sworn to by some only of such defendants, was, by order dated 4th November, 1856, E 2 52 SWEAEINGr TO ANSWEE. ordered to be filed as the answer of those defendants only who had sworn to it. Upon motion made on the 15th November, 1850, it was ordered, with reference to the other defendant, who was out of the jurisdiction at the time the answer was filed, but who had come within the jurisdiction, and was desirous of swearing to the answer, that the Clerk of Records and Writs should be at liberty to swear such defendant to the said answer, " without taking the same off the file ; and that such answer when sworn to by the said defendant should be treated as the joint answer of " [naming all the defendants whose answer it purported to be]. The foregoing cases, which have occurred in practice, are thus noticed, as they may possibly guide the practitioner in future cases involving similar circumstances. Where the same solicitor is employed for two or more defendants, and separate answers shall have been filed, or other proceedings had by or for two or more defendants separately, the taxing master is to consider, in the taxation of such solici- tor's bUl of costs, either between party and party or between solicitor and client, whether such separate answers or other proceedings were necessary or proper ; and if he is of opinion that any part of the costs occasioned thereby has been un- necessarily or improperly incurred the same is to be disallowed. —Order 27, 3rd April, 1828. A plaintiff may, in certain cases, file an answer on behalf of a defendant.^See Section 15 of Act 1st Will. 4, c. 36, fully set forth under title " Eeturns to Writs, and Proceedings to be taken thereupon." Answers may be sworn and taken at the like places and before the like authorities as affidavits. A list of such places is set forth in the preliminary note to " Affidavits." If an answer is to be sworn and taken as to some only of several defendants elsewhere than at the Record and Writ Clerks' office, such answer should be taken as to such defen- dants previously to the taking thereof at the Record and Writ Clerks' office as to the other defendant or defendants, because when an answer is sworn before a Clerk of Records and Writs it usually remains in his custody, and no alterations in answers are authenticated by him. If any answer sworn to before a Clerk of Records and Writs is taken away from the office before it is filed, it must be resworn by the defendants who were sworn to it at the Record and Writ Clerks' office. The answer of a corporate body may be filed with only the seal of the corporation affixed. It is, however, advisable that TIME FOE FILING ANSWER. 53 the affixing of such seal should be attested by the secretary, chairman, or other proper officer. The form of such attesta- tion may be as follows : — No. 53. The seal of affixed by order, this day of , Secretary [or as the case may be]. Such attestation may be placed at the side of the seal. Any alteration made in an answer should be made previously to the defendant's swearing thereto. If made afterwards the answer must be resworn before it can be filed. All alterations must be authenticated by the initials of the commissioner or other officer before whom it is sworn. — 15 & 16 Vict. c. 86, s. 25. For forms of jurat and oaths, see "Jurats and Oaths." Times Allowed for Filing Answers. The times allowed for answering, in the several under- mentioned cases, are as follows : — Where Answer Required. To an original, amended, or supplemental hill, or to interrogatories with concise statement prefixed, or to hill of revivor, to which an answer may he required. — Fourteen days from the due delivery of a duly sealed copy of the interrogatories. — Order 19, 7th August, 1853. If the plaintiff amends his bill before answer, but does not deem it necessary to amend the interrogatories too, in such case the defendant has his full time over again (fourteen days) from the time of the service of a duly sealed copy of the bill as amended. To exceptions for insufficiency suhmitted to before they are set down. — Three weeks from the date of the submission, by a defendant not in contempt. — Order 10, 2nd November, 1850. To exceptions for insufficiency submitted to after being set down or allowed. — On submitting to exceptions for insufficiency after they are set down, the defendant, not being in contempt, may apply for, and obtain, further time ; on allowance by the Court, 64 MME FOE FILING ANSWER. the Court is to fix the time for filing the further answer. — Order 17, Snd November, 1850. Where the defendant is required to answer amendments and exceptions together. — The answer must be filed within four weeks after the defendant is served with notice of the amendment of the bill.— Article 15 of Order 16, 8th May, 1845. Such a requirement is not very usual under the present practice, and, query, now that the plaintiff can only enforce an answer from a defendant by filing interrogatories, should not the four weeks for answering amendments and exceptions together be reckoned from the time of delivery of a copy of the interrogatories as amended, or of the interrogatories filed for the examination of the defendant in answer to the amended bill ? It can hardly be said that the limitation of fourteen days from the> delivery of the interrogatories should apply, or that the defendant should be bound to answer the amendments and exceptions within the same time as the Court may have allowed for answering the exceptions alone, or, in the case of a sub- mission to answer exceptions, within the three weeks which the defendant would have for answering the exceptions alone. In such cases, to remove all doubt, it would, perhaps, be advisable that the defendant should apply for further time to answer, and thus get the time fixed by special order. A defendant discharged from the custody of the serjeant-at- arms, or of a messenger, having been in such custody for want of answer, and not having been brought to the bar of the court within ten days after he was taken into custody, must never- theless file his answer within eight days after such discharge, or a new attachment may be issued against him. — Order 73, 8th May, 1845. A defendant discharged from prison, having been committed to prison or detained in prison for want of answer, and not having been brought to the bar of the court within thirty days from the time of his being taken into custody, or detained, must nevertheless file his answer within eight days after such discharge, or a new attachment may be issued against him. — Order 74, 8th May, 1845. In cases where a demurrer or plea is overruled the defendant should, at the time the demurrer or plea is overruled, apply to the Court for further time to answer. Voluntary Answer. To an original or supplemental hill. — Twelve days from the entry of an appearance by or for the defendant, and not after- TIME FOE FILING ANSWER. 55 wards, without leave of the Court. — 15 & 16 Vict. c. 86, s. 13 ; aud Article 10 of Order 16, 8th May, 1845. If the bill is amended during such twelve days and before a voluntary answer has been filed to the original bill, the defendant is entitled to his full time over again (twelve days) from the time of the service of " notice of amendment," that* is, from the service of a duly sealed (but not indorsed) copy of the bill as amended. To an Amended Bill. — If the bill is amended after answer filed to the original bill, the defendant has eight days from " notice of amendment," that is, from the service* of a duly sealed (but unindorsed) copy of the biU as amended, within which to file a voluntary answer to the amendments or to obtain further time. — Article 38 of Order 16, 8th May, 1845. No summons for time to answer such amendments is to be granted after the expiration of eight days from the service of the notice of the amendment of the bill. — Order 71, 8th May, 1845. It may be mentioned that a voluntary answer to an amended bill, in cases where the defendant has voluntarily answered the original bUl, will be received and filed by the Clerks of Records and Writs, at any time after the time limited by the general orders may have expired, unless the plaintiff has meanwhile taken any proceeding which would prevent its reception. Where the Bill to which an Answer is required was filed before the 2nd November, 1852. A defendant has six weeks after appearance entered by or for him within which to answer an original or supplemental bill. If the bill is amended during such six weeks, and' before the answer is filed, the defendant has his six weeks over again from the service of notice of amendment.-^Articles 13 and 14 of Order 16, 8th May, 1845. If the bill is amended after answer, and a further answer to the amended bill is required, the defendant must file his answer to such bill within four weeks after appearance entered thereto by or for him. — Article 16, Order 16, 8th May, 1845. If the bill is amended without requiring a further answer, then the defendant must file his voluntary answer to such amendments within eight days after being served with notice of amendment, or obtain further time. — Article 38 of Order 16, 8th May, 1845. 56 TIME FOE FILING ANSWEE. The time within which an answer must he filed to exceptions for insufficiency, submitted to or allowed, is governed by the Orders of 3nd November, 1850. See p. 58. WTiere the defendant is required to answer amendments and exertions together. — The answer must be filed within four weeks after the defendant is served with notice of the amend- ment of Ihe bill.-^Article 15 of Order 16, 8th May, 1845. A married woman obtaining an order to answer separate from her husband, has the full time for answering from the date of such order. After a traversing note has been filed and served, a defendant is not at liberty to answer a bill, or to put in any further answer thereto, without the special leave of the Court. — Order 58, 8th May, 1845. Applications for further time to answer, or for leave to answer, may be made at chambers, by summons. The summons should be taken out so as to be returnable before the time allowed by the general orders, or which may have been allowed by a special order, has elapsed. If returnable after such time, even although the summons is served, the plaintiff may issue an attachment. An answer to interrogatories will be received at the Record and Writ Clerks' office, and filed, without questioning whether or not such answer is being filed within due time. So, likewise, wLU a voluntary answer to an amended bill be received and filed, if it does not appear from the entry of the cause that the plaintiif has taken any proceeding which would shut the defendant out from answering, — for instance, if the plaintiff has not set down the cause or filed replication. But, in the latter case, if the answer is to be filed after the expiration of eight days from the notice of the amendment of the bill, an order extending the time is necessary ; and any such order, if obtained, shoidd be produced when the answer is presented for filing. In no case will the voluntary answer of a defendant to an origijaal or supplemental bill be received and filed after the expiration of twelve days from the. entry of his appearance, except under the authority of a special order. When the answer is ready for filing it may be transmitted to the Eecord and Writ Clerks' office, through any medium, and there filed without any other formality than is required in filing an affidavit. — 15 & 16 Vict. e. 86, s. 21. Notice of filing the answer should be served upon the plaintiff. DISCLAIMER — POEM OF DEMURRER. 57 or his solicitor, on the same day, hefore seven o'clock in the evening, or, if a Saturday, before two o'clock in the afternoon. Such notice may be in the following form, viz : — No. 64. In Chancery. I have this day filed the answer of the defendant in this cause. {Name, 8fc., of the Defendant or his Solicitor.'] To [Ifame of Plaintiff' or his Solicitor.] DISCLAIMEE. A disclaimer must be intituled, sworn to, and filed in like manner as an answer ; indeed, a disclaimer is generally coupled with an answer. A disclaimer may be filed without oath, but not without oath or signature. DEMURRER. No. 55. To a Bill. In Chancery. Between, &c. [^Set forth the Full Title of the Cause.] The demurrer of , one of the above-named defen- dants, to the bin of complaint of the above-named plaintifif. This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the said bill of complaint contained to be true, in such manner and form as the same are therein set forth and alleged, 58 DEMURRER — PREPARATION AND TIME FOR FILING. doth demur to the said bill, and for cause of demurrer showeth : — 1. That, &c. Wherefore, and for divers other good causes of demurrer appearing in the said bUl, this defendant doth demur to the said bill, and to all the matters and things therein contained, and prays the judgment of" this Honourable Court whether he shall be compelled to make any further or other answer to the said bill, and he humbly prays to be hence dismissed with his reasonable costs in this behalf sustained. [Name of Counsel.] A demurrer must be engrossed on parchment. No stamp need be affixed as no fee is payable for filing ; nor is it, in any case, necessary to put in a demurrer upon oath. It need not even be signed by the defendant. A demurrer must be signed by counsel, and the name and address of the solicitor or party filing it must be indorsed. A demurrer is, as respects the correction of the name of a plaintiff, or of a co-defendant, subject to the same restrictions and regulations as an answer. See p. 44. A demurrer cannot be filed on behalf of a married woman separately from her husband without an order. A demurrer cannot be filed on behalf of an infant, or a person of unsound mind, until a guardian ad litem has been appointed. A lunatic may demur by his committee, unless their inte- rests are adverse; in which latter case a guardian ad litem should be appointed for the lunatic. In each of the above cases, the order should be produced when the demurrer is presented for filing. Tim^ Allowed for Mling a Demurrer. To original, amsnded, or supplemental hill, or hill of revivor. Twelve days after appearance entered thereto, but not after- wards.— Article 10, Order 16, 8th May, 1845. If the plaintiff amends the bill before a demurrer is filed, and before the twelve days for demurring have elapsed, and serves the defendant with a duly sealed, but unindorsed, copy SETTING DOWN DEMUEBEE. 59 of the amended bill, the defendant will be entitled to his twelve days over again from the date of such service. But in all cases where the plaintiff serves a copy of the amended bill with an indorsement, thereby requiring the defendant to appear, the defendant must again enter an appearance, and he will have twelve days from such appearance within which to file a demurrer. If a demurrer is coupled with an answer, then the same time is allowed for demurring as for answering. But the answer must not be a mere pretence ; for instance, it must not consist of a mere denial of combination. If an attachment has been issued against a defendant for want of answer, such defendant cannot file a demurrer and answer. A demurrer wiU, in no case, be accepted at the Eecord and Writ Clerks' office after the expiration of twelve days from the entry of the appearance. After a traversing note has been filed and served, a defen- dant is not at liberty to file a demurrer, without the special leave of the Court.— Order 58, 8th May, 1845. Notice of filing a demurrer should be served on the plaintiff or his solicitor on the same day, before seven o'clock in the evening, or, if a Saturday, before two o'clock in the afternoon. The notice may be in the following form : — No. 56. In Chancery. I have this day filed a demurrer, in this cause, on behalf of the defendant . [Ifame of the Defendant's Solicitor.] To [Name of Plaintiff or his Solicitor.] Setting dmm a Demurrer. Upon the filing of a demurrer, either party is at liberty to set the same down for argument immediately. — Order 44, 8th May, 1845. Tim£s unthin which a Demurrer should he Set Down or Submitted to. Where a demurrer to the whole biU is not set down for argument within twelve days after the filing thereof, and the plaintiff does not, within such twelve days, serve an order for leave to amend the bill, the demurrer is to be held sufficient 60 SETTING DOWN DEMURRER. to the same extent, and for the same purposes, and the plaintiff is to pay to the demurring party the same costs, as in the case of a demurrer to the whole bill allowed upon argument. — Order 46, and Article 17 of Order 16, 8th May, 1845. Where a demurrer to part of a bill is not set down for argument within three weeks after the filing thereof, and the plaintiff does not, within such three weeks, serve an order for leave to amend the bill, the demurrer is to be held sufficient to the same extent, and for the same purposes, and the plaintiff is to pay to the demurring party the same costs, as in the case of a demurrer to part of a bill allowed upon argument. — Order 47, and Article 18 of Order 16, 8th May, 1845. The times of vacation are not to be reckoned in the com- putation of the time allowed for setting down a demurrer. — Article 3, Order 14, 8th May, 1845. Mode of proceeding on Setting Dotvn a Demurrer. A demurrer need not be entered with the Registrar. — Order 44, 8th May, 1845. Nor is any certificate of the filing of the demurrer required. The following information sufficiently shows what is the course to be pursued on setting down a demurrer. Demurrers, required to be heard before the Lord Chancellor, or one of the Vice-Chancellors, are to be set down by the registrars for hearing, on orders drawn up by them upon peti- tion to the Lord Chancellor, left with the registrar, without any fiat or direction from the Lord Chancellor. — Order, 23rd February, 1850. Every petition to set down a demurrer must be marked with the name of the judge for whom the biU is marked. — Order 5, 5th May, 1837. And must state the time [date] of filing of such demurrer, and whether the demurrer is to the whole or part of the bill. It must likewise be subscribed with the name of the solicitor, and the party for whom he acts, and the date [the date of the presentation of the petitionl. — Regis- trar's Regulations, 1st March, 1850. If the bill is marked for the Master of the Rolls, the petition is to be addressed to the Master of the Rolls. A copy of the order for setting down the demurrer should be served, immediately, on the solicitor of the opposite party. Upon the overruling of any demurrer, the defendant or defendants shall pay to the plaintiff or plaintiffs the taxed costs occasioned thereby, unless the Court shall make other order to the contrary. — Order 33, 8rd April, 1828, FORM OF PLEA. 61 PLEA. No. 57. In Chancery. Between, &c. \_Set forth the Full Title of the Cause.] The plea of , one of the above-named defendants, to the biU of complaint of the above-named plaintiff. This defendant, by protestation, not confessing or acknowledging, all or any of the matters. and things in the said plaintiff's bill of complaint mentioned and contained to be true, in such sort, manner, and form as the same are therein set forth and alleged, for plea to the whole of the said bill saith(a) [set forth the subject matter of the plea]. Therefore the said defendant doth plead the said ■ ■ (in bar) to the said plaintiff's bill, and prays the judgment of this Honourable Court whether he shall be compelled to make any further answer to the said bill, and prays to be hence dismissed with his reasonable costs in this behalf most wrongfully sustained, [^JVame of Counsel.] A plea must be engrossed on parchment. No stamp need be affixed, unless the defendants filing such plea are to be sworn thereto at the Record and Writ Clerks' office, and even then it is to be stamped with a stamp of such an amount only as will cover the number of oaths to be administered at that office, viz.. Is. 6d. for each defendant. The name of coimsel must in all cases appear upon the plea. The plea must be indorsed with the name, &c., of the defendant or his solicitor. On filing a plea of outlawry, an office copy of the record of the outlawry must be annexed. A certificate of the outlawry only is not sufficient. A plea of excommunication should have the seal of the Ordinary affixed. — Beames's Orders, p. 27. ■ (a) If it be a plea to part of the bill only, say " foi- plea to so much or such part of the said bill as prays," &c.; or, "seeks a discovery, &c., whether." 62 PEEPABING AND SWEAEING TO PLEA. A plea is, as respects the correction of the name of a plaintiff, or of a co-defendant, subject to the same restrictions and regulations as an answer. See p. 44. A plea cannot be filed on behalf of a married woman sepa- rately from her husband without an order. A plea cannot be filed on behalf of an infant, or a person of unsound mind, until a guardian ad Mem has been appointed. A lunatic may plead by his committee, unless their interests are adverse ; in which latter case a guardian ad litem should be appointed for the lunatic. In each of the above cases the order should be produced when the plea is presented for filing. Swewring to Pleas. " Some pleas require to be put in upon oath, others may be filed without being sworn to by the defendant. The principle which regulates the practice is founded on the nature of the plea. Pleas to the jurisdiction of the Court, or in disability of the persons of the plaintiff or defendant, or pleas in bar of any matters of record, or of matters recorded, or as of record in the court itself, or any other court, need not be upon oath. Thus a plea of outlawry, with a common averment of identity of the person need not be upon oath ; and a plea of the plaintiff's conviction of felony need not be upon oath, the conviction being fully proved by the record alone; nor a plea of a former suit depending for the same matter ; nor a plea of a matter of record, nothing being neces- sary but the production of the record to prove the plea. But pleas of matter of record, with averments 'of matters in pais, and pleas in bar of matters in pais, must be filed upon oath. Thus a plea of the Statute of Frauds, or the Statute of Limi- tations, is upon oath, as the acts of part performance in the one case, and a promise in the other, must be denied. A plea that a defendant was not administrator (as charged by the biU), is put in on oath, as the plaintiff cannot test its truth except by a search in aU the dioceses. A plea that the plaintiff was illegitimate is required to be put in on oath." (a) See also cases cited in Daniell's Chancery Practice, 3rd edition (1857), vol. i., pp. 564 to 567. Pleas may be sworn before the same authorities as answers. A plea which does not require being put in upon oath need not be signed by the defendant. And, in other cases, if the (a) See Smitt's Ch. Pr., 6tli ed., 1867, pp. 310, 311. TIME FOR FILING PLEA. 63 plaintiff will consent, an order may be obtained as of course, to file a plea without oath or signature. Any order thus obtained should be produced to the officer at the time the plea is presented for filing. If filed under any such order, but without oath only, the defendant must sign the plea, and his signature must be attested thus : — No. 68. Witness to the signature of the defendant, [Name and Address of the Witness.] Any adult person may witness the signature of the defendant. Time allowed foe Filing a Plea. Where the Plaintiff requires an Answer. The same time is allowed for filing a plea, or a plea and answer, as is allowed for answering alone, viz. : fourteen days from the delivery to the defendant, or his solicitor, of a duly sealed copy of the interrogatories. — Order 19, 7th August, 1852. Where the Plaintiff does not require an Answer. The defendant may put in a plea within twelve days, after his appearance to the bill, but not afterwards without leave of the Court. — 15 & 16 Vict., c. 86, s. 13, and Article 10.— Order 16, 8th May, 1845. If the plaintiff amends the bill during the twelve days, and before the plea is filed, and does not by the amendment require an answer, then the defendant is entitled to the twelve days over again from the service of notice of amendment, that is, from the service of a duly sealed, but unindorsed, copy of the bill as amended. In any case where the plaintiff has required an answer, a plea will be received at the Kecord and Writ Clerks' office, and filed at any time, without questioning whether or not it is being filed in due time. It may be mentioned, however, that it is in"practice considered irregular to file a plea in cases where the defendant is in con- tempt for want of answer, and the process of contempt has proceeded as far as an order for the serjeant-at-arms. 64 SETTING DOWN PLEA. In cases where the plaintiff has not required an answer the defendant's plea will be refused, and will not be filed, if pre- sented after the expiration of twelve days from the entry of his appearance, except under the authority of a special order, which (in cases where it has been obtained) should be produced when the plea is presented for filing. After a traversing note has been filed and served a defendant is not at liberty to file a plea without the special leave of the Court.— Order 58, 8th May, 1845. A plea when ready for filing may be transmitted and filed without any other formality than is required in filing an affi- davit.— 15 & 16 Vict. c. 36, s. 81. Notice of fiUng the plea should be given to the plaintiff or his solicitor on tiie same day, before 7 o'clock in the evening, or, if on a Saturday, before 2 o'clock in the afternoon. Such notice may be in the following form, viz : — No. 69. In Chancery. I have this day filed a plea, in this cause, on behalf of the defendant . Dated this day of . To [N^ame of Flmntiff or his [Name, 8fc., of Defendant or Solicitor.'] his Solicitor.] Setting down a Plea. Upon the filing of a plea either party is at liberty to set the same down for argument immediately. — Order 44, 8th May, 1845. Counsel should be consulted before setting down a plea for argument, since some kinds of pleas ought not to be set down. See cases cited in Smith's Ch. Pr. 6th ed. 1857, p. 312, and Daniell's Ch. Pr. 3rd ed. 1857, vol. i. p. 569. Time loithin which a Plea should be Set Boim or Submitted to. ' Where a plea to the whole or part of a bill is not set down for argument within three weeks after the filing thereof, and the plaintiff does not within such three weeks serve an order for leave to amend the bill, or does not within such three weeks MODE OP sp:tting down plea. 65 by notice in -writing, undertake to reply to the plea, the plea is to be held good to the same extent, and for the same purposes, and the same costs are to be paid by the plaintiff, as in the case of a plea to the whole or part of a bill allowed upon argument ; and, where the plea is to the whole bill, the defendant by whom such plea was filed, may, at any time after the expiration of such three weeks, obtain as of course an order to dismiss the bill.— Order 49, and Article 19 of Order 16, 8th May, 1845. The times of vacation are not to be reckoned in the com- putation of the time allowed . for setting down a plea. — Article 3 of Order 14, 8th May, 1845. Sundays pud other days on which the offices are closed are, likewise, not to be reckoned. — Order 13, 8th May, 1845. The plaintiff, having undertaken to reply to a plea to the whole bill, is not, without special leave of the Court, to take any proceediiig against the defendant by whom the plea was filed till after replication. — Order 50, 8th May, 1845. Mode of Proceeding on Setting down a Flea. A plea need not be entered with the registrar. — Order 44, 8th May, 1845. Nor is any certificate of the filing of the plea required. The following information sufficiently shows what is the course, to be pursued on setting down a plea : — ■ Pleas, required to be heard before the Lord Chancellor, or one of the Vice-Chancellors, are to be set down by the regis- trars for hearing, on orders drawn up by them upon petition to the Lord Chancellor, left with the registrar, without any fiat or direction from the Lord Chancellor. — Order, 23rd February, 1850. Every petition to set down a plea must be marked with the name of the Judge for whom the bill is marked. — Order 5, 6th May, 1837 ; and must state the time \date'\ of filing of such plea, and be subscribed with the name of the solicitor, and of the party for whom he acts, and the date {the date of the presentation of the petition], — Registrar's Regulations, 1st March, 1850. If the bill is marked for the Master of the Rolls, the petition is to be addressed to the Master of the Rolls. A copy of the order for setting down the plea should be served, immediately, on the solicitor of the opposite party. Upon the overruling of any plea, the defendant or defendants is or are to pay to the plaintiff or plaintiffs the taxed costs occasioned thereby, unless the Court shall make other order to the contrary.— Order 33, 3rd April, 1828. 66 FORM OF TRAVERSING NOTE. When a plea is ordered to stand for an answer, the order should (unless otherwise iutended) be drawn up in terms " with liberty for the plaintiff to except thereto," otherwise the plain- tiff cannot file exceptions for insufficiency. TRAVEESING NOTE. No. 60. In default of Answer to an Original, or Supplemental Bill, or Bill Amended before Answer, In Chancery. Between, &c. [Set forth tJie Full Title of the Cause.] The plaintiff intends to proceed with his cause as if the defendant had filed an answer, traversing the case made by the bill. [iVflsme, 8fc., of the Solicitor or Parti/ fling the note.] No. 61. In default of Answer to Bill Amended after Answer. In Chancery. Between, &e. [Set forth the Full Title of the Cause.] The plaintiff intends to proceed with his cause as if the defendant had filed an answer, traversing the allega- tions introduced into the bill by amendment. [Nanie, 8fc., of the Solicitor or Party filing the note,] No. 62. In default of Further Answer. In Chancery. Between, &c. [SetfoHh the Full Title of the Cause.] The plaintiff intends to proceed with his cause as if the defendant had filed a further answer, traversing the allegations in the biU whereon the exceptions are founded. [Name, Sfc., of the Solicitor or Party filing the note.] TIME FOE FILING TRAVERSING NOTE. 67 The foregoing forms of traversing note are provided by tlie General Orders 52, 53, and 54, 8th May, 1845. A plaintiff may include in one traversing note the names of several defendants, notwithstanding such defendants may have appeared by separate solicitors. A traversing note must be engrossed on parchment. No stamp need be affixed, as ho fee is payable for filing. The name, &c., of the solicitor or party filing the note must be either underwritten or indorsed. It appears from a case (Ornery v. Newson) cited in Daniell's Ch. Pr. 3rd ed. 1857, vol. i. p. 364, that a traversing note cannot be filed against an infant. A traversing note when filed and served is equivalent to an answer filed by the defendant, except for the purposes of evidence (a). Such note cannot, therefore, properly be filed against a married woman separately from her husband until an order for her to answer separately has been obtained. And it is presumed that such order would, in such case, be obtain- able in like manner as in cases where the plaintiff wishes to enforce the answer of a married woman by attachment. For the mode of proceeding in such case, and the authorities cited in support thereof, see Smith's Chancery Practice, 6th ed. 1857, pp. -274, 275, and 276. Time for Filing a Traversing Note. A traversing note may be filed without order, immediately the time for answering has elapsed. JWhere a demurrer or plea to the whole bill is overruled, the plaintiff, if he does not require an answer, that is, if he does not then wish to enforce an answer, may immediately file his note in the manner directed by the Orders 52 or 53, 8th May, 1845, as the case may require, and with the same effect, unless the Court upon overruling such demurrer or plea gives time to the defendant to plead, answer, or demur, and in such case, if the defendant files no plea, answer, or demurrer within the time so allowed bj; the Court, the plaintiff, if he does not then require an answer, may, on the expiration of such time, file such note. — Order 55, 8th May, 1845. Upon filing a traversing note, no documentary proof that the time for answering has elapsed is required. (a) See case {Martin v. Nm-man) cited in Daniell's Ch. Pr. 3rd ed. 1857, vol. i.( p. 364. 68 SEBVXCE OF A TRAVERSING NOTE. Service of a Copy of a Traversing Note. A traversing note having been filed, a copy thereof is to be served on the defendant against whom the same is filed, in the manner directed by Orders 19 and 21, 26th October, 1842, for the service of documents not requiring personal service. — Order 56, 8th May, 1845. The provisions referred to for' the service of a copy of a traversing note do not, however, meet every case. Order 19, 26th October, 1842, applies to the case where a party sues or defends by a solicitor. The 21st of those orders applies to the case where a party sues or defends in person. So that the general orders do not provide for the service of a copj'' of a traversing note in cases where an appearance has been entered at the instance of the plaintifif. If service of a copy of a traversing note could be construed to mean notice of the filing of a traversing note, then Order 3, 11th April, 1842, (which provides for the service of any notice of motion or other notice personally, or at the dwelling-house or office of any defendant, who, having been duly served with subpoena to appear and answer, shall not have caused an appearance to be entered hy his own solicitor within the time limited for that purpose), might appl3^ But, in practice, no such construction has obtained, and therefore in all cases where an appearance has been entered at the instance of the plaintiff for a defendant as against whom a traversing note is filed, special application is made to the Court for leave to serve a copy of such note. The Court will not give leave to serve a copy of a traversing note out of the jurisdiction. JEffect of Traversing Note. A traversing note being filed, and a copy thereof duly served, is to have the same effect as if the defendant had filed a full answer, or further answer, traversing the whole bill, or such parts of the bill as the note relates to, on the day on which the note was filed. — Order 57, 8th May, 1845. After the service of the copy of a traversing note duly filed, the defendant is not at liberty to plead, answer, or demur, to a biU, or to put m anyfurther answer thereto, without the special leave of the Court; and the cause is to stand in the same situ- ation as if such defendant had filed a full answer, or further answer, to the bill, on the day on which the note was filed.— Order 68, 8th May, 1845. PEOCEEDINGS ON FILING A TRAVERSING NOTE. 69 If the plaintiff, having obtained no order to enlarge the time, does not obtain and serve an order for leave to amend the bill, or does not file a replication, or set down the cause to be heard on bill and answer, within four weeks after the filing of a tra- versing note, the defendant may move to dismiss the bill for want of prosecution. — Article 1 of Order 114, 8th May, 1845. Proceedings to be ialien on filing a Traversing Note. The traverse provided by the Act 15 & 16 Vict. c. 86, s. 26, is not a substitute for the traversing note provided by the General Orders, 8th May, 1845. The provisions of the Act referred to, apply to the case of a defendant who shall not hum been required to anstver, and shall not have answered, the plaintiffs bill ; whereas, the General Orders, 8th May, 1845, in reference to a traversing note, have always been regarded as applying only to cases in which the defendant has been required to answer, but who has not answered within the time allowed for such purpose. In the case provided, for by the Act, the Act itself provides and declares the traverse ; whereas, in the cases provided for by the General Orders of 8th May, 1845, the defendant is to be considered as having traversed the case made by the bill, only when the plaintiff shall have filed and served a copy of the note provided by such orders. But in the cases to which the provisions of the General Orders, 8th May, 1845, apply, it may not be necessary in every such case that the plaintiff should file a traversing note, unless he wishes to join issue with the defendant, by filing a replica- tion, so that he may take the evidence orally, or by affidavit, and thereupon go to a hearing; for the plaintiff, having required an answer from the defendant, may, after the time for answering has expired, serve a notice of motion for decree, and thereupon go to a hearing, proving his case by affidavit. Where a traversing note is filed against a defendant, the plaintiff cannot, of course, take the bill pro con/esso against such defendant for want of answer, but the plaintiff's subsequent proceedings must be the same in all respects as if the defendant " had filed an answer traversing the case made by the bill." It has been shown that the plaintiff must either amend his bill, or file a replication, or set down the cause on bill and answer, within four weeks after the filing of the note, or serve a notice of motion for a decree. It may, however, be well to consider, whether a cause can safely be set down for hearing on bill and answer, in cases where a traversing note has been 70 FOEM OF EEPLICATION. filed. A traversing note, duly filed and served, " is to have tbe same effect as if the defendant had filed a full answer trwcersing the whole Mil." — Order 57, 8th May, 1845. A plaintiff would, it is presumed, set down a cause to be heard on bill and aiiswer, only in cases where he is able to prove his case from admissions in the answer. But what admissions can there be in an answer which traverses the whole bill ? It would appear, therefore, that in filing a traversing note, the plaintiff, by his own act, puts himself to the proof of his case; consequently he must either join issue by filing a replica- tion, enter into evidence, and thereupon go to a hearing, or, he must serve a notice of motion for a decree, and prove or support his case at the hearing by affidavit, as provided by the Act 15 & 16 Vict. c. 86, s. 15, and Orders 33, 23, 34, and 25, 7th Au- gust, 1852. It would be well, in every case, to consult with counsel before filing a traversing note, and, perhaps, the foregoing observations, especially those having reference to the effect of a traversing note upon the evidence to be used at the hearing of the cause, may sufficiently warrant the suggestion. A defendant served with a copy of a traversing note must be served with a subpoena to hear judgment. At the hearing of the cause, the plaintiff should be provided with an office copy of an affidavit of due service of a copy of the traversing note. EEPLICATION. No. 63. Form to he used in cases where the Plaintiff joins issue with all the Defendants, whether such Defendants ha/oe answered or not. In Chancery. [SetfoHh the Full Title of the Cause.] The plaintiff in this cause hereby joins issue with all the above-named defendants. [Name, 8fc., of the Plaintiff, or of his Solicitor.] day of . FORM OF KEPLICATION. 7l No. 64. Form to be used in cases where the Plaintiff joins issue with some only of the Defendants, whether such Defendants have answered or not, and will hear the cause on bill and answer against the rest of the Defendants, whether such Defendants have answered voluntarily or by requirement from the Plaintiff. In Chanceet. \_8et forth the Full Title of the Cause.] The plaintiff in this cause hereby joins issue with the above-named defendants , and will hear the cause on bill and answer against the defendants ■ . \_Name, 8fc., of the Plaintiff, or of his Solicitor.'] • day of •a No. 65. Form to be used in cases where the Plaintiff joins issue with some of the Defendants, whether they have answered or not, and will hear the cause " on bill and answer " against other Defendants, whether answering voluntarily or by requirement from the Plaintiff, and "on the order to take the Mil as confessed," against the rest of the Defendants. In Chanceet. \_Set forth the Full Title of the Cause.] The plaintiff in this cause hereby joins issue with the defendants , and will hear the cause on bill and answer against the defendants , and on the order to take the bill as confessed against the defendants . [^Name, 8fc., of the Plaintiff, or of his Solicitor.] day of In what cases Replication necessary. The filing of a replication is necessary in cases where the plaintiff (not setting the cause down on motion for decree) intends to enter into evidence to prove his case against a defendant. The form of replication now in use is provided by Order 93, 8th May, 1845 ; and although, in such form, there is a clause 72 IN WHAT. CASES BEPLICATION NECESSABY. to the effect, that the plaintiff " will hear the cause on bill and answer against the defendant -. ;" and another clause to the effect, that the plaintiff will hear the cause " on the order to take the bill as confessed against the defendant ; " still, no replication can be filed in a cause where those two clauses only are applicable. If the plaintiff intends to have the cause heard on bill and answer only, it is set down for such purpose upon a certificate from the Clerk of Records and Writs : if only upon an order to take the bill as confessed, then the cause is set down for hearing upon an order, as of course, drawn up in the registrar's office. Therefore the two clauses referred to are only to be used in cases where, besides those defendants with whom the plaintiff joins issue, there are still other defendants with respect to whom the provisions of such clauses apply. This explanation alone might have been sufficient ; but in- asmuch as the fofms sold by the law stationers, and generally used by solicitors, invariably contain the three clauses, and such clauses are so frequently — and evidently otherwise than through mere inadvertence — improperly introduced into repli- cations when presented for filing, it has been thought desirable to give three forms of replication instead of one only, the headings to which show in what case any one of such forms, and any one only, need be used. In any suit commenced by bill, where notice of motion for a decree, or decretal order, shall not have been given, or, having been given, where a decree, or decretal order, shall not have been made thereon, issue may be joined, by filing a replication. —15 & 16 Vict. c. 86, s. 36. The words in the Act are " issue shall be joined," but it is presumed that it cannot be intended that the filing of a repli- cation shall be compulswy in suits commenced by bill, where notice of motion for a decree shall not have been given. Indeed, in practice, a plaintiff in such cases not unfrequently hears the cause on bill and answer. The replication, or motion for decree, can only be necessary in cases where the defendant shall not have been required to answer, and shall not have answered the bill. "Where a defendant shall not have been required to answer, and shall not have answered the plaintiff's bill, so that under the Act 15 & 16 Vict. c. 86, s. 26, he is to be considered as having (traversed the case made by the bill, issue may be joined, by filing a replication. — Order 28, 7th August, 1852. Here, also, the words in the order are " issue is nevertheless to be joined," but it is presumed that, in this case also, the AS TO FILING ONE REPLICATION ONLY. 73 filing of a replication is not compulsory ; for frequently, in practice, the plaintiff, in such cases, after the time for filing a voluntary answer has elapsed, sets down the cause to be heard on motion for decree. The provision for filing a replication wa's, however, necessary to enable a plaintiff to enter into evidence against a defendant, in cases where he had not required an answer from the defendant. As to Filing one M&plication only. Only one replication is to be filed in each cause, unless the Court otherwise orders ; and upon the filing of such replication the cause is to be deemed to be completely at issue ; and each party may, without any rule or order, proceed to examine his witnesses. — Order 93, 8th May, 1845. For information as to the mode of taking the evidence, see " Evidence." The following observations show in what cases, and under what circumstances, more than one replication may be filed in a cause. Where the plaintiff has obtained leave to withdraw repli- cation and amend bill, a replication may afterwards be filed without order. Where a cause, upon coming on for hearing, has been ordered to stand over, with liberty to amend by adding parties, and it becomes necessary to file a replication as against such parties, such replication may be filed without order. In cases where a defendant has filed interrogatories for the examination of the plaintiff, in lieu of filing a cross bill, such -defendant, if. he wishes to enter into evidence against the plaintiff, may reply to the plaintiffs answer. If, after filing replication, but before the cause is set down for hearing, a defendant, proceeded against as being out of the jurisdiction, comes within the jurisdiction, and appears and answers, and the plaintiff desires to join issue with such defendant, application should be made for leave to file a repli- cation to the answer so filed by such defendant. This may, possibly, render it necessary to procure an enlargement of the time for closing the evidence in the cause generally, otherwise, before the plaintiff is ready to set down the cause, the defends •ants as against whom the first replication was filed may be in a position to move to dismiss for want of prosecution. Where, upon a motion to dismiss for want of prosecution, an order has been made directing that the plaintiff shall file replication within a limited time, or, in default thereof, that the 74 PEEPAEATION OF REPLICATION. bill do stand dismissed, the plaintiff, on filing replication, must reply generally in the cause. If he is not likely to be pre- pared so to reply, he should, before the limited time has elapsed, apply to the Court for an enlargement of the time. Preparation of BepKcation. • The defendants with whom the plaintiff intends to. join issue must either have answered, or their time for filing a voluntary answer must have elapsed, before the replication can be filed ; and, as a rule, any defendants, to be included in the replication, as against whom the plaintiff intends to hear the cause on bill and answer, must likewise have answered either voluntaidly or otherwise. But an exceptional case, such as the following, sometimes occurs. It not unfrequently happens that the plain- tiff, by reason of some application made to the Court by a defendant, is under terms to file replication in the cause wiUiin a limited time. In such cases, if there be any defendants who have not yet answered, and the plaintiff is satisfied that sttch defendants zdll file their answers, and that he can set down the cause on bill and answer against them, then, the plaintiff may file his replication, including, in the body thereof, the names of those defendants, notwitiistanding the answers of such defendants are not yet filed. However, if the plaintiff does not think fit to adopt this course he should apply for an enlarge- ment of the time to reply. A replication to be filed in a cause in which the plaintiff joins issue with some defendants, and will hear the cause on the order to take the biU as confessed against other defendants, cannot be filed until such order has been obtained, and such order must be produced to the officer when the replication is presented for filing, unless it has been previously left for entry in the cause book kept by the Clerks of Records and Writs. A replication may be filed notwithstanding a memorandum of service of a copy of the bill upon defendants (who, upon such service, are to be bound by the proceedings), may not have been entered. It is sufficient if such memorandum is entered at any time before a certificate to set down the cause for hearing is granted. A replication may be filed to an answer put in to a supple- mental statement. Immediately after a traversing note has been filed, and a copy thereof served, the plaintiff may file replication. Office copies of all the answers filed must be taken before PEEPAEATXON OF REPLICATION. 75 replication can be filed. See observations under title " Office Copies." A replication must be engrossed on parchment. No stamp need be affixed, as no fee is payable for filing. It must be underwritten with the name and address of the plaintiff, or of his solicitor. The full title of the cause, as it stands at the time the repli- cation is filed, must be set forth in the heading, but only the names of such defendants as have appeared are to be inserted, or referred to, in the body of the replication. If a defendant's name has been mis-spelt by the plaintiff, and such defendant has corrected his name by liis answer, and the plaintiff hiis not afterwards amended the bill with respect to such name, the name of such defendant should be set forth in the title of the replication thus : — " John Jones (in the bill called William Jones)." But in the body of the rephcation the defendant's proper name alone should be inserted. If any defendant has died since the bill was filed, after his name, in" the title of the replication, add " (since deceased)." The name of a deceased defendant should not be inserted in the body of the replication, and for these reasons, viz. : — If his interest survives to, and is represented by, other par-ties, who have been brought before the Court, it is sufficient if the plaintiff, by his replication, joins issue with such other parties, in lien of the party deceased. If, upon his death, his interest ceases altogether, his name may be omitted in the body of the replication. If his interest has become trans- mitted to other parties before the Court, it is sufficient if the plaintiff, by his replication, joins issue with such parties. The names of all the parties to the cause, — at any rate, of all the defendants, — ^must be set forth in the title of the replication ; and if the plaintiff joins issue with all the defendants, their names need not be repeated in the body thereof. If the plaintiff does not join issue with aU the defendants, then the names of the defendants must be repeated in the body of the replication, in connection with such of the clauses provided in the form as are applicable to the several defendants. The names of the defendants who are stated by the bill to be out of the jurisdiction, and who have not appeared, must be inserted in the title, but not in the body of the replication. Lastly, the name of any defendant who, upon being served with a copy of the bUl, is to be bound by the proceedings in the cause, must be inserted in the title ; it must not, however, appear in the body of the replication, unless such defendant has entered a common appearance in the cause. 70 TIME FOR FILING REPLICATION. Time for Filing Replication. Immediately the answers are filed, or in cases where no answer has been required by the plaintiff, immediately the time for answering voluntarily has elapsed, the plaintiff may file replication in the cause. In cases where a defendant who, under the provisions of the general orders, would be at liberty to file a voluntary answer to an original or amended bill, does not intend thus to answer, the plaintiff may file the replication before the time for answer- ing has elapsed, if he can procure an indorsement upon the replication of a consent from such defendant, or his solicitor, in the following form : — No. 66. I consent to this replication being filed, notwithstanding the time for filing a voluntary answer has not elapsed. A. B., solicitor for the defendant . Ox, if the plaintiff, having required an answer, desires to waive such requirement, he may obtain, as of course, an order to amend the interrogatories filed in the cause, " by striking out so much of the heading and note at the foot thereof as requires an answer from the defendant, ." The time allowed by the general orders of the Court for filing replication in each of the cases enumerated below is as follows : — Where the plaintiff does not obtain and serve an order to amend his bill, if he intends to file replication he is to file it within four weeks after the answer, or the last of the answers is to be. deemed, or is found to be, suflScient. — Article 37 of Order 16, and Article 1 of Order 114, 8th May, 1845. Construction of the term " Last Answer." The following construction of the term " last answer " appears to be favoured by the decisions of the Court. Where the proceeding is by the plaintiff, in the way of obtaining an order to amend, tlie term " last answer " means the last answer required by him from the several defendants. For, in practice, the plaintiff may, if he has not already amended after answer (a required answer) filed, or if any defendant, entitled to move, has not served a notice of motion to dismiss, obtain an ordei- as COXSTEUCTION OF TEEM "LAST ANSWER." 77 of course to amend his bill at any time within four weeks after the last answer required by him from the several defendants is sufficient. Where the proceeding is by a defendant, in the way of moving to dismiss for want of prosecution, the term " last answer " means the last answer required from him. For a defendant is not precluded from moving to dismiss, merely because another defendant, or all the defendants, from whom the plaintiff may have required answers, have not filed their answers. In practice a defendant is at liberty fo move to dismiss the hill for want of prosecution at the expiration of four weeks after his answer, or the last of the answers required from him is. to be deemed, or is found to be sufficient. It would appear that the cases of Forman v. Oray, 9 Beav. p. 196, and Arnold v. Arnold, Beav. Rep., vol. ix., part 1, p. 206, involve the construction which the Court has put upon Article 33 of Order 16, and Order 66, 8th May, 1845, and have special reference to the time within which a plaintiff may obtain, as of course, an order to amend. And that the cases of Dalton V. Hayter, 7 Beav. 586, and Lester v. Archdale, 9 Beav. 158, involve the construction which the Court has put upon Article 1 of Order 114, 8th May, 1845, and have special refer- ence to the time within which the defendant, or one of several defendants, may move to dismiss for want of prosecution. The proceeding by the plaintiff, in obtaining an order to amend, affects the defendants generally, whereas, the proceeding by a defendant in moving to dismiss, may not affect other de- fendants, and if any defendant, entitled to move to dismiss, has not availed himself of his right, there does not appear to be any impropriety or hardship if the plaintiff avails himself of the benefit of the defendant's omission, and obtains an order to amend. The whole case seems to be further supported by the General Order, 13th April, 1847, which directs that the plaintiff is riot to obtain an order as of course to amend, after a defen- dant, entitled to move, has served a notice of motion to dis- miss. It is clear, therefore, that that order contemplates a case in which a defendant might be in a situation to move to dismiss before the time has elapsed within which the plain- tiff might obtain an order, as of course, to amend. The pro- vision of such order must have been altogether unnecessary if, in practice, one of several defendants was not at liberty to move to dismiss, until all the defendants, from whom answers might be required, had filed their answers, or, if the plaintiff was not at liberty to obtain an order as of course to amend, even though one of several defendants might be entitled to serve a notice of motion to dismiss. For where all the defendants 78 TIME FOR FILING REPLICATION. have answered, and four weeks have elapsed from the date of the suflaciency of the last answer filed, the plaintiff is already precluded, hy Order 66, 8th May, 1845, from ohtaining an order, as of course, to amend, except for the purpose of amending clerical errors. Time for filing Replication — continued. Where the plaintiff amends his hill, without requiring an answer to the amendment, and no answer is put in thereto, and no summons for further time to answer is served vnthin eight days after service of the notice of the amendment of the bill. — Replication is to be filed after the expiration of eight days, but within forirteen days, from the time of the service of notice of the amendment of the bill.— Article 39, Order 16, 8th May, 1845. Where the plaintiff amends his bill, without requiring an anstcer to the amendments, and further time to answer such amendments has been refused to the defendant, hy the Judge at chambers. — Within fourteen days after the refusal to allow to the defendant further time to answer the amendments. — Article 40, Order 16, 8th May, 1845. Where the defendant puts in an answer to amendments, to which the plaintiff has not required an answer. — Within fourteen days after the filing of the defendant's voluntary answer to the amendments, unless the plaintiff, in the meantime, obtains from the Court special leave to except to such answer or to amend the bill.— Article 41, Order 16, 8th May, 1845. Where the plaintiff has given an undertaking to reply to a plea to the whole Mil. — Within four weeks from the date of the under- taking to reply. — Article 3, Order 114, 8th May, 1845. Where a tramrsing note has been filed against a defendant. — Within four weeks after the filing of the traversing note. — Article 1 of Order 114, 8th May, 1845. In cases where the defendant has not been required to answer, and has not answered the plaintiff's bill, and the plaintiff intends to file replication, and enter into evidence, against such defendant, he must file the replication within three months from the date of the entry of the appearance of such defendant, otherwise a notice of motion to dismiss the bill for want of prosecution may be served. — Order 29, 7th August, 1852. The plaintiff may file replication after the time allowed by the general orders, if a defendant has not served a notice of motion to dismiss. Indeed, even where such notice is served, the replication may be filed, and is generally the best way of meeting the motion. A replication will be received and filed at the Record and NOTICE OF FILING EEPLICATIQN. 79 Writ Clerks' office at any time, without questioning whether it is being filed within due time or not, if, from the entry, it appears that the cause is in such a state as will admit of repli- cation being filed. The only case in which the times of vacation are not to be reckoned, in the computation of the time allowed for filing replication, is that mentioned in Article 41 of Order 16, 8th May, 1845. See such article, set forth on p. 13. — Article 4, Order 14, 8th May, 1845. Apphcations for an enlargement of the time for filing repli- cation, may be made at chambers, by summons, or by motion in court, upon notice to all the defendants. Notice of filing Replicatimt. Notice of filing a replication must be served on all the defen- dants with whom issue is joined, on the same day on which the replication is filed. — Order 23, 26th October, 1842. The notice should be served before seven o'clock in the evening, or, if served on a Saturday, before two o'clock in the afternoon. — Order, 8nd February, 1857. In practice it is usual to serve notice upon the solicitors of all the defendants who have appeared. The notice may be in the following form, viz. : — No. 67. In Chanceey. I have this day filed a replication In the form fol- lowing : — [Here copy the replication.] [Name, 8fc., of Plaintiff's Solicitor or Agent.] To [Name, 8fc., of Defendant' s Solicitor or Agent.] It is not essential that, in giving notice of filing replication, a copy of the replication should be served. Yet the purport of it must in all cases be given, and, in most instances, it will be found that a copy of the replication will afford more explicit notice than any other form of notice. The time for closing the evidence is computed from th^ day on which the replication is filed. — Order 5, 13th January, 1855, See " Evidence." As to amending replication, see note to " Amendments." 80 FORM OF SUPPLEMENTAL STATEMENT. SUPPLEMENTAL STATEMENT. Nq. 68. In Chancery. Between, &c. [Set forth the Full Title of the Cause.} Statement, by way of supplement, to be added to the bill [or claim] (a) in the above-mentioned suit. ISet forth concisely the supplemental matter to be stated.] [Name of Counsel^ Circumstances under which a Supplemental Statement may, and may not, be filed. If the plaintiff, in any cause which is not in such a state as to allow -of an amendment being made in the bill, desires to state, or put in issue, any facts or circumstances, which may have occurred after the institution of the suit, he may state the same, and put the same in issue, by filing, in the Record and Writ Clerks' office, a statement, either written or printed, to, be annexed to the bill; and such proceedings by way of answer, evidence, and otherwise are to be had and taken, upon the statement so filed, as if the same were embodied in a supplemental bill : ProAdded always, that the Court may make any order which it shall think fit for accelerating- the pro- ceedings thereunder or proceedings, therein, in any manner which may appear just and practicable. — ^Order 44, 7th August, 1853. See also 15 & 16 Vict. c. 86, s. 53. A supplemental statement is seldom filed, thete being so few cases to which the proceeding is applicable. It has been decided that new parties cannot be brought before the Court by supplemental statement.^— jffea^A v. Lewis, 18 Beav. 527. A supplemental st£^tement . cannot be. filed a,fter decree,. the proceeding must then be by supplemental bill. — Comerall v. Hall,, 2 W. R. p. 285. And a supplemental statement should not be filed, if the cause is in such a state as will allow of the statement being introduced into the bill by way of amendment. — Order 44, 7th August, 1852, and 15 & 16 Vict. c. 86, s. 53. (o) It has been decided that the proviaions of the Act apply to claims, Martin v. Hadlow, 16 Jur. 964. PROCEEDINGS UPON PILING SUPPLEMENTAL STATEMENT. 81 Now, it can hardly be said that a cause is in a state other- wise than such as will allow of an amendment being made in the bill, unless, or until, replication is filed ; and, even then, if no evidence has been taken, the plaintiff might apply for leave to withdraw the replication and amend the bill ; or, evidence having been taken, if the time for closing the evidence has not elapsed, the plaintiff might apply for leave to amend the bill without prejudice to the replication already filed and the evi- dence taken thereunder, an extension of the time for closing evidence being, perhaps, in that case, all that would become necessary. It would appear, therefore, that a supplemental statement need be filed only in 'cases where the plaintiff cannot withdraw the replication or amend the bill, or, where the cause has been set down for hearing but not yet heard. Course of Proceeding upon filing Supplemental Statement. Where, however, a supplemental statement is to be filed, the following course of proceeding is usually adopted. If the statement be written, it must be on parchment ; if printed, it should be on writing royal paper, quarto, in pica type, leaded. In either case the statement must be stamped either with a 10s. (higher scale), or with a 5s. (lower scale) Chancery fee fund stamp. Although new parties cannot be brought before the Court by a supplemental statement, yet, inasmuch as the same pro- ceedings, by way of answer, are to be had and taken as if a supplemental bill were filled, it is necessary that the defendant should appear thereto, and, therefore, a copy of the statement, duly stamped and indorsed, and sealed at the Record and Writ Clerks' office, must be served. Such service, by limiting the time for appearance, will fix the time for filing interrogatories in answer to the statement, for interrogatories must be filed, if the plaintiff requires an answer to the statement. If an answer is not required, still the service of the copy will fix the time for a voluntary answer, as the defendant's time for filing a voluntary answer to the statement will be twelve days from the entry of his appearance thereto. No stamp need be affixed to the copy for service, no fee being payable for sealing it. The indorsement is, in effect, the same as that required on a copy of a bill, the words " the within statement " being used, instead of the words " the Avithin bUl." 82 FORM OP CLAIM BY A CEEDITOB. After the statement is answered, or the time for voluntarily answering it has elapsed, a replication may, if necessary, be filed, without order. CLAIM. No. 69. By a Creditor vpon the Estate of a Deceased Person, seeking Pay- ment of his Debt out of the Deceased's Personal Assets. In Chancekt. Lord ChanceHor, Vice-Chancellor , or Master of the Rolls. Between A. B., . . . Plaintiff, E. F., . . . Defendant. The claim of A. B. of ■, the above-named plaintiff. The said A. B. states that C. D., late of , deceased, was, at the time of "his death, and that his estate stUl is, justly indebted to him the said A. B. in the sum of £ for goods sold and delivered by the said A. B. to the said C. D. \pr otherwise, as the case may he, or, if the debt is secured by any vrritten instrument, state the date and nature thereof '\. And that the said CD. died in or about the month of , and that the above-named defendant E. F. is the executor [or administrator] of the said C. D., and that the said debt hath not been paid; and therefore the said A. B. claims to be paid the said debt or sum of £ , with his costs of this suit, and in default thereof he claims to have the per- sonal estate of the said C. D. administered in this court on behalf of himself and all other the unsatisfied creditors of the said CD., and for that purpose that all proper directions may be given and accounts taken. JVote. — This form may be varied according to the circum- stances of the case, where the claimant is not the original FORM OF CLAIM — BY A LEGATEE. 83 creditor, hut has become interested in or entitled to the debt, in tchich case the character in which he claims is to be stated. No. 70. By a Legatee under the Will of any Deceased Person, seeking Pay-~ tnent or Delivery of his Legacy out of the Testator's Personal Assets. In Chancery. Lord Chancellor, Vice-Chancellor , or Master of the EoUs. Between A. B., . . . Plaintiff, C. D., . . . D^endant. The claim of A. B. of the above-named plaintiff. The said A. B. states that he is a legatee to the amount of £, , under the will dated the day of — ■ — , of , late of , deceased, who died on the day of , and that the above-named C. D. is the executor of the said -, and that the said legacy of £, , together with interest thereon after the rate of £, per cent, per annum from the day of \the day mentioned in the will for the payment of the legacy, or the expiration of twelve calendar months after the said testator's death], is now due and owing to him the said A. B. [or still unpaid or unsatisfied] [or unappropriated or unsecured']. And the said A. B. there- fore claims to be paid [or satisfied] the said legacy and interest [or, to have the said legacy and interest appropriated and secured], and in default thereof he claims to have the personal estate of the said administered in this court on behalf of himself and all other the legatees of the said , and for that purpose, that all proper directions may be given and accounts taken. Note. — This form may be varied according to the circum- stances of the case, inhere the legacy is an annuity or Recife a 2 84 FOEM OF CLAIM — BY A EESEDUARX LEGATEE. sum, or where the plaintiff is not the legatee, hut has become entitled to or interested in the legacy, in which case the character in which the plaintiff claims is to be stated. No. 71. JBp a Residuary Legatee, or any of several Residuary Legatees of any Deceased Person, seeking an Account of the Residue, and Payment or Appropriation of his Share therein. In Chancebt. Lord Chancellor, Vice-Chancellor , or Master of the Rolls. Between A. B., .... Plaintiff, ^ C. D., .... Defendant. The claim of A. B. of , the above-named plaintiff. The said A. B. states that he is the residuary legatee \pr one of the residuary legatees], under the -will dated the day of , of late of , who died on the day of 5 and that the ahove-named defendant C D. is the executor of the said , and that the said C. D. hath not paid to the said A. B. the [or his share of the] residuary personal estate of the said testator. The said A. B. there- fore claims to have the personal estate of the said administered in this court, and to have his costs of this suit, and for that purpose that all proper directions may be given and accounts taken. Note. — This form may he varied according to the circum- stances of the case, where the plaintiff is not the residuary legatee, hut has become entitled to or interested in the residue, in which case the character in which he claims is to he stated. FOEM OF CLAIM FOE ACCOUNT OF PERSONAL ESTATE. 85 No. 72. By the Person, or any of the Persons, entitled to the Personal Estate of any Person who may have died intestate, and seeking an Account of such Personal Estate and Payment of his Share thereof In Chanceet. Lord Chancellor, Vice-Chancellor , or. Master of the Bolls. Between A. B., . . . Plaintiff, C. D., . . . Defendant. The claini of A. B. of , the above-named plaintiff. The said A. B. states that he is the next of kin [or one of the next ofkin\, according to the statutes for the distribu- tion of the personal estate of intestates, of late of , who died on the day of intestate ; and that the said A. B. is entitled to [or to a share of'\ the personal estate of the said , deceased, and that , the said defendant G. D. is the administrator of the personal estate of this said '-, and that the said C. D. has not accounted for or paid to the said A. B. the [or the said A. B.'s sMre of the] personal estate of the said intestate. The said A. B. therefore claims to have the personal estate of the said administered in this court, and to have his costs of this suit, and for that purpose that all proper directions may be given and accounts taken. 86 FORM OF CLAIM B^ AN EXECUTOR. No. 73. By the Executor or Administrator of a deceased Person, claiming to have the Personal Estate of the Testator administered under the Direction of the Court. In Chancery. Lord Chancellor, Vice-chancellor — ^— , or, Master of the Rolls. Between A. B., . . . Plaintiff, C. D.,' . . . Defendant. The claim of A. B. of , the. above-named plaintiff. The said A. B. states that he is the executor [or adminis- trator] of E. F. late of ,biit now deceased, who departed this life on or about , and that he hath possessed the personal estate of the said E. F. to some amount, and that he is willing and desirous to account for the same, and that the whole of the personal estate of the said E. F. should be duly administered in this court, for the benefit of all persons interested therein or entitled thereto ; and that C. D. is interested in the said personal estate, as one of the next of kin [or residuary legatee] of the said E. F. And the said A. B. claims to have the personal estate of the said E. F. applied in a due course of administration, under the direction of this Court, and in the presence of the said C. D. and such other persons interested in the said estate as this Court may be pleased to direct, or that the said C. D. may show good cause to the contrary : And that the costs of this suit may be provided for ; and for these purposes that all proper directions may be given and accounts taken (a). (a) This form may be varied according to circumstances when the plaintiff's co-executor or co-administrator is a defendant. FORM OF CLAIM TO FORECLOSE. 87 No. 74. By a legal or equitable Mortgagee or Person entitled to a Lien as Security for a Debt, seeking Foreclosure or Sale, or othertoise to enforce his Securifi/. In Chancery. Lord Chancellor, Vice-Chancellor , or. Master of the Rolls. * Between A. B., . . . Plaintiff, C. D., . . . Defendant. The claim of A. B. of , the ahove-named plaintiff. The said A. B. states that under or hy virtue of an inden- ture (a) [or other documenf], dated the day of , and made between [parties'], [and a transfer thereof made by indenture daied the day of , and made between [parties'], ] the stud A. B. is a mortgagee [or an equitable mortgagee] of [or is entitled to a lien tipan] certain freehold properly [or copyhold, or leasehold, or other property, as the case may he], therein comprised, for securing the sum of pounds and interest, and that the time for payment thereof has elapsed ; and that the above-named C. D. is entitled to the equity of redemption of the said mortgaged premises [or the premises subfeci to such lien] (b). And the said A. B. therefore claims to be paid the said sum of pounds and interest, and the costs of this suit, and in default thereof he claims to foreclose the equity of redemption of the said mortgaged premises [or to have the said mortgaged premises sold, or to have the premises subject to such lien sold, as the case may be, and the produce thereof applied in or towards payment of his said debt and costs], and for that purpose to have all proper directions given and accounts taken. (a) The names only of the parties are to be set out, not the substance or effect of the document. (6) If there is no -written security to be referred to, the property is to be described generally. 88 FOEM OF CLAIM — TO EEDEEM. No. 75. By a person entitled to the Redemption of any legal or equitable Mortgage or any Lien, seeking to redeem the same. In Chanceey. Lord Chancellor, Vice-Chancellor , or, Master of t!ie KoUs. Between A. B., . . . Plaintiff, CD., . . . Defendant. The claim of A. B, of , the above-named plaintiff. The said A. B. states that under or by virtue of an inden- ture \pr other document], dated the day of , and made between \_parties'\, [and the assurances hereinafter men- tioned, that is to say, an indenture dated the day of ] \pr the mil of , dated the day of ~\, the said A. B. is entitled to the equity of redemption of certain freehold property \pr copyhold, or leasehold, or other property, as the case may be] therein comprised, which was originally mortgaged [or pledged] for securing the sum of pounds and interest ; and that the above-named defendant C. D. is now, by virtue of the said indenture, dated the day of [and of subsequent assurances], the mortgagee of the said property [or holder of the said lien], and entitled to the principal money and interest remaining due upon the said mortgage [or Hen] ; and he believes that the amount of principal money and interest now due upon the said mort- gage [or lien] is the sum of pounds, or thereabouts ; and that the said A. B. hath made or caused to be made an application to the said C. D. to receive the said sum of pounds, and any costs justly payable to him, and to re-convey to the said A. B. the said, mortgaged property [or property subject to the said lien], upon payment thereof, and of any costs due to him in respect of the said security, but that the said C. D. has not so done. And therefore FORM OF CLAIM — FOE SPECIFIC PERFOEMANCE. 89 the said A. B. claims to be entitled to redeem the said mortgaged property [or property/ subject to the said lien], and to have the same re-conveyed [or delivered up] to him, upon payment of the principal money and interest and costs due and owing upon the said mortgage [or Hen], and for that purpose to have all proper directions given and accounts taken. No. 76. £1/ a Person entitled to the specific Performance of an Agreement for the Sale or Purchase of any Property, seeking such specific Performance. In Chancery. Lord Chancellor, Vice- Chancellor , or. Master of the Rolls. Between A. B., ... Plaintiff, C. D., . . . Defendant. The claim of A. B., of , the above-named plaintiff. The said A. B. states that by an agreement dated the day of ; and signed by the above-named de- fendant C. D., he the said C. D. contracted to buy of bim [or to sell to him] certain freehold property [or copy- hold, leasehold, or other property, as the case may be] therein described or referred to, for the sum of pounds ; and that he has made or caused to be made an application to the said C. D. specifically to perform the said agreement on his part, but that he has not done so, and the said A. B. therefore claims to be entitled to a specific perform- ance of the said agreement, and to have his costs of this suit, and for that purpose to have all proper directions given. And he hereby offers specifically to perform the same on his part. 90 FORM OF CLAIM — FOR PARTNERSHIP ACCOUNT. No. 77. By a Person entitled to an Account of the Dealings and Transactions of a Partnership dissolved or expired, seeking such Account. In Chancert. Lord Chancellor, Vice-Chancellor , or, Master of the RoUs. Between A. B Plaintiff, C. D Defendant. The claim of A. B., of , the above-named plaintiff. The said A. B. states that from the day of down to the day of he and the above-named C. D. carried on the business of in copartnership, under certain articles of copartnership, dated the day of , and made between \jparties\ \pr, without articles, as the case may he\ ; and he saith that the said partnership was dissolved \pr, expired, as the case may be] on the day of . And he claims an account of the partner- ship dealings and transactions between him and the said CD., and to have the affairs and business of the said partnership wound up and settled under the direction of this Court, and for that purpose that all proper directions may be given and accounts taken. FORM OF CLAIM TO SUE IN NAME OF TRUSTEE. 91 No. 78. By a Person entitled to an equitable Estate or Interest, and claiming to me the Name of his Trustee in prosecuting an Action for his own sole benefit. In Chancery. Lord Chancellor, Vice-Chancellor , or, Master of the RoUs. Between A. B., . . . . Plaintiff, C. D Defendant. The claim of A. B., of , the ahove-named plaintiff. The said A. B. states that under an indenture dated the day of , and made between [parties], he is en- titled to an equitable estate or interest in certain property therein described or referred to, and that the above-named defendant is a trustee for him of such property, and that being desirous to prosecute an action at law against , in respect of such property, he has made or caused to be made an application to the said defendant to allow him to bring such action in his name, and has offered to indem- nify him against the costs of such action, but that the said defendant has refused or neglected to allow his name to be used for that purpose. And the said A. B., therefore, claims to be allowed to prosecute the said action in the name of the said defendant, and hereby offers to indemnify him against the costs of such action. 93 FOKM OF CLAIM TO APPOINT NEW TRUSTEE. No. 79. By a Person entitkd to have . a new Trustee appointed, in a Case where there is no Power in the Instrument creating the Trust to appoint new Trustees, or when the Power cannot be exercised, amd seeking to appoint a new Trustee. In Chancery. Lord Chancellor, Vice-Chancellor , or, Master of the KoUs. Between A. B., . . . Plaintiff, C. D., . . . Defendant. The claim of A. B. of r, the above-named plaintiff. The said A. B. states that under an indenture dated the day of , and made between [parties'] [or toill of , or other document, as the case may be], he the said A. B. is interested in certain trust property therein men- tioned or referred to, and that the above-named defendant C. D. is the present trustee of such property [or is the real or personal representative of the last surviving trustee of such property, as the case may be'] ; and that there is no power in the said indenture [or will or other document] to appoint new trustees [or that the power in the said indenture [or other document] to appoint new trustees cannot be executed]. And the said A. B. therefore claims to have new trustees appointed of the said trust property in the place of [or to act in conjunction with] the said CD. Cases in which a Suit may be instituted by Claim. Any person seeking equitable relief may, without special leave of the Court, and instead of proceeding by bUl of com- plaint in the usual form, file a claim in the Record and Writ Clerks' office in any of the following cases ; that is to say, in any case where the plaintiff is or claims to be, 1. A creditor upon the estate of any deceased person, seeking payment of his debt out of the deceased's personal assets. CASES m WHICH A CLAIM MAY BE FILED. 93 2. A legatee under the will of any deceased person, seeking payment or delivery of his legacy out of tlie deceased's personal assets. 3. A residuary legatee, or one of the residuary legatees, of any deceased person, seeking an account of the residue, and payment or appropriation of his share therein. 4. The person or any of the persons entitled to the personal estate of any person who may have died intestate, and seeking an account of such personal estate and payment of his share thereof. 5. An executor or administrator of any deceased person, seeking to have the personal estate of such deceased person administered under the directions of the Court. 6. A legal or equitable mortgagee, or person entitled to a lien as security for a debt, seeking foreclosure or sale, or otherwise to enforce his security. 7. A person entitled to redeem any legal or equitable mort- gage or any lien, seeking to redeem the samei 8. A person entitled to the specific performance of an agree- mment for the sale or purchase of any property, seeking such specific performance. 9. A person entitled to an account of the dealings and trans- actions of a partnership dissolved or expired, seeking such account. 10. A person entitled to an equitable estate or interest, and seeking to use the name of his trustee in prosecuting an action for his own sole benefit. 11. A person entitled to have a new trustee appointed, in a case where there is no power in the instrument creating the trusts to appoint new trustees, or where the power cannot be exercised, and seeking to appoint a new trustee. —Order 1, 22nd April, 1850. Such claim, in the several cases enumerated above, is to be in the form and to the effect hereinbefore set forth, as applicable to the particular case, and the filing of such claim is, in all cases not otherwise provided for, to have the same force and effect as filing a bill. — Order 2, 22nd April, 1850, and schedule A appended thereto. In any case, other than those enumerated above, or in any case to which the forms set forth are not applicable, the Court may, upon the ex^arte application of any person seeking equitable relief, and upon reading the claim proposed to be filed, give leave to file such claim; and if such leave be given, an indorsement thereof, by the registrar, upon the proposed claim, is a sufficient authority for the Eecord aiid 94 PRACTICE APPLICABLE TO CLAIMS. Writ Clerk to receive and file such claim. — Order 6, 32nd April, 1850. In the case provided for by the 5th Article of Order 1 any one person, who, under the 8rd or 4th Article of Order 1, might have claimed relief against the executor or administrator of the deceased person whose personal estate is sought to be administered, and the co-executor or co-administrator (if any) of the plaintiff, may alone be named as defendants to the suit in the first instance. — Order 7, 23nd April, 1850. In other cases, the only person who need be named as defendant to the suit in the first instance, is the person against whom the relief is directly claimed. — Order 8, 23nd April, 1850. Practice c^Ucable to Suits commenced by Claim. Guardians ad Mem to defend may be appointed for infants, or persons of weak or unsound mind, and against whom a claim may have been filed, in like manner as guardians ad litem to answer and defend are appointed in suits on bill filed. —Order 28, 22nd April, 1850. All claims, and all writs, caveats, proceedings, directions, and orders consequent thereon, either before the Court or in the Judges' chambers, or Masters' offices, are to be deemed proceeeings, writs, and . orders subject to the general rules, orders, and practice of the Court, so far as the same are or may be applicable to each particular case, and consistent with the Orders of 22nd April, 1850 ; and aU orders of the Court, made in such proceedings, are to be enforced in the same manner, and by the same process, as orders of the Court made in a cause upon bill filed. — Order 9, 23nd April, 1850. Any order or proceeding made, or purporting to be made, in pursuance of the Orders of 22nd Apnl, 1850, may be dis- charged, varied, or set aside on motion, and any order for accelerating, proceedings may be made by consent. — Order 39, 32nd April, 1850. Any order of the Master of the EoUs, or of any of the Vice- Chancellors, may be discharged or varied by the Lord Chan- cellor on motion. — Order 30, 22nd April, 1850. If any of the cases enumerated in Order 1 involve or are attended by such special circumstances, affecting either the estate, or the personal conduct of the defendant, as to require special relief, the plaintiff is at liberty to seek his relief by bill. —Order 31, 33nd April, 1850. If any suit for any of the purposes to which the forms set forth are applicable, shall be commenced by bill, and prosecuted PREPARATION OF CLAIM. 95 to a hearing in the usual course, and upon the hearing it shall appear to Qie Court that an order to the effect of the decree then made, or an order equally beneficial to the plaintiff, might have been obtained upon a proceeding by summons in the manner authorised by the Orders of S2nd April, 1850, the Court may order that the increased costs occasioned by the proceeding by bUl, beyond the amount of costs which would have been sustained in the proceeding by claim, shall be borne and paid by the plaintiff. — Order 83, 33nd April, 1850. Preparation of Clam. Claims are to be printed on writiag royal paper, quarto, in pica type, leaded ; and the copy to be filed is to be interleaved with paper of the same description. — Order 1, 7th August, 1852. In every case the copy to be filed must be stamped with a 6s. Chancery fee fund stamp. — Schedule 3, Order, 30th January, 1857. Every claim is to be marked, at or near the top or upper part thereof, in the same manner as a bill is marked, with the name of the Lord Chancellor and one of the Vice-Chnncellors, or with the name of the Master of the EoUs. — Order 8, 22nd April, 1850. If, through inadvertence, the claim, as printed, is not marked for a Judge, the name of the Judge for whom it is to be marked, and to whose court the cause is to be attached, may be inserted in writing. With this exception, the whole of the claim rmist he printed. It is not essential that a claim should be signed by counsel ; nor is it required (though it is very desirable) that the name of the defendant, and also the name and address of the solicitor or party filing it, should be inserted at the foot, as in the case of a bUl. If^ however, the name, &c., of the solicitor is not given in a note at the foot, it must be indorsed on the claim. In a claim filed by an infant, married woman, or person of unsound mind, by a next friend, it is not essential that the address of the infant, married woman, or person of unsound mind, should be set forth ; but the address of the next friend must be set forth, and the written authority of such next friend must be filed with the claim, in like manner as with a bill. For form of such authority, see form No. 25, p. 26. The copy of the claim for filing need not have indorsed thereon the usual form of indorsement, requiring the defendant to appear ; and even on the copies for service it may be written. 96 SUPPLEMENTAL CLAIM — CLAIM TO REVIVE. SUPPLEMENTAL CLAIM. Where any further or supplemental relief is sought, and such supplerttental relief is such as is provided for in any of the cases enumerated under Order 1, 33nd April, 1850, a supple- . mental claim may be filed, in such of the foregoing forms as is applicable to the case. — Order 85, 33nd April, 1850. If such suppleniental relief is not such as is provided for by Order 25, a supplemental claim may be filed, stating, shortly, the nature of the plaintiff's case, and the supplemental relief claimed, but the leave of the Court is to be obtained previously to the filing thereof, upon an eocparte application for the purpose, in the manner specified in Order 6, see p. 93. — Order 26, 22nd April, 1850. Proceedings may be taken upon a supplemental claim, in like manner as upon an original claim. — Order 27, 22nd Apnl, 1850. CLAIM TO REVIVE. No. 80. Sy a Party entitled to Revive or to Carry on a Suit, and seeking to Revive or Carry on the Suit. In Chancery. ' Lord Chancellor, Vice -Chancellor — — , or As in ori claim Master of the Eolls, Between A. B., Plaintiff, and CD., Defendant, and Title of this cMm. Between G. H., Plaintiff, and K. L., Defendant. The claim of G. H. of , the above named plaintiff. The said G. H. states, that the said A. B. filed his claim CLAIM TO REVIVE. 97 in this suit on or about ; that on or about the said A. B. died [or became baiiArupt or insolvent] ; that the said suit and all proceedings thereunder have thereby become abated [or defective'] ; that the said G. H. has become and is the executor [or administrator, or the assignee of the estate and effects] of the said A. B., and he claims to be entitled to revive the said suit and proceedings {or to he entitkd to carry on the said suit and proceedings], and to have all such relief as the said A. B. would have been entitled to if he had lived [or had not become bankrupt or insolvent] ; or that the said O. D. ought to show good cause to the contrary. Note. — This form may be applied to any case to which Order 21 {^2nd April, 1850) applies, and may be varied according to the circumstances of each case. Where any proceedings originally commenced by claim shall, by the death of parties or otherwise, have become abated or defective for want of parties, and no new relief is sought, a claim to revive or carry on the suit may be filed. — Order 21, 22nd April, 1850. • It would appear, however, that an order to revive may be obtained under the provisions of the Act 15 & 16 Vict , c. 86, s. 52, and, in fact, such is the course more generally adopted. But should any case arise in which it is deemed necessary or proper to file a claim to revive, such claim must be in the form before set forth. See Order 21, 22nd April, 1850. As to the form of indorsement to be made on a copy of a claim to revive for service, see " Indorsements on Copies of Claims." Cause is shown against a claim to revive by the entry of a caveat at the Eecord and Writ Clerks' office. For form of caveat, see " Caveats." 98 COPIES OF CLAIMS FOE SERVICE. INDORSEMENTS ON COPIES OF CLAIMS SEALED FOR SERVICE. No. 81. Victoria R. To the within-named defendant C. D., greeting. We command you [" and every of you," where there is more than one defendant], that within eight days (a) after service hereof on you, exclusive of the day of such service, you cause an appearance to be entered for you in our High Court of Chancery to the within claim of the within-named A. B. ; and further, that on the fourteenth day (a) after the service hereof, or on the seal or motion day then next following, you do personally or by counsel appear in the Court of our Lord Chancellor before the Vice- Chancellor [naming him] [or, in the Court of our Master of the Rolls] , at ten of the clock in the forenoon, and then and there . show cause if you can why the said A. B. should not have such relief against you as is within claimed, or why such order as shall be just with reference to the claim should not be made. Witness ourself at Westminster, the day of , in the year of our reign. Note. — Appearances are to be entered at the Record and Writ Clerks' office. Chancery Lane, London ; and if you neglect to enter your appearance, and either personally or by your counsel to appear in the High Court of Chancery at the place and on the day and hour above- mentioned, you will be subject to such order as the Court may think fit to make against you in your absence for payment or satisfaction of the said claim, or as the nature and circumstances of the case may require. Copy of Claim to be served. A defendant is to be served with a printed claim, with an indorsement thereon in the foregoing form, with such varia- (a) In cases where leave is obtained to serve the defendant out of the jurisdiction, the day named in the order must be inserted. SEALING AND SERVING COPIES OF CLAIMS. 99 tions as circumstances may require, such printed claim so to be served being previously stamped (sealed) at the Record and Writ Clerks' office with a stamp indicating the filing of such claim, and the date of the filing thereof. — 16 & 16 Vict. c. 86, s. 3. The indorsement on a copy of a claim for service may be either wholly or partially in writing, and must be tested as of the day on which it is sealed. No variation in the form of the indorsement is required in cases where the copy of the claim is to be served upon a peer or for a corporation. Upon applying for an order for liberty to sue in forma pauperis, it is necessary to produce to the officer an official or authentic copy of the ^claim. For the purpose of obtaining such order the party need not take an office copy of the claim (although in some cases it would cost less to do so), he may have a copy sealed. No indorsement should be made on the copy. It must, however, be stamped, and a praecipe, upon sealing it, left, as in other cases. Sealing Copy of Claim for Service. Each copy of a claim to be sealed for service must be stamped with either a 5s. (higher scale) or a Is. (lower scale) Chancery fee fund stamp, and a praecipe, in the following form, must be left with the officer at the time the copy is pre- sented for sealing. No. 82. In Chancery. Seal one copy of claim, for service. Dated this day of . {Nam£, 8fC., of the Plaintiff, or of his Solicitor.'] One praecipe is sufficient for any number of copies sealed at the same time and in the same cause. If a copy of a claim has not been served, it may be altered and resealed. No further fee is payable on resealing, but another praecipe must be left with the officer. If a copy of a claim is to be served pursuant to special order, for instance, upon a defendant out of the jurisdiction, such order must be produced to the officer at the time the copy is presented for sealing. Service of Copy of Claim. The service of a printed copy of a claim is to be effected H 2 100 INDORSEMENT ON CLAIM TO REVIVE. in the same manner as service of a writ of subpoena to appear and answer was heretofore effected (viz., either personally or at the residence of the party), save only that it is not necessary to produce the original claim, which will be on the files of the court. The Court may, however, direct substituted service. — 15 & 16 Vict. c. 86, s. 5. The service upon the defendant of a printed claim, duly indorsed and stamped (sealed), is to have the same effect as service on him of a writ of summons heretofore had ; and the plaintiff' is entitled to the same remedies for default of appear- ance, and otherwise, as he was heretofore entitled to upon due service of a writ of summons. — '15 & 16 Vict. c. 86, s. 4. In the case of an original claim, or of a claim to revive or supplemental claim, a copy should be served upon or for each defendant. For information respecting the sealing and service of copies of amended claims, see " Amendments." Such of the forms of writs of summons provided by the General Orders, 33nd April, 1850, as may possibly still be required, will be found under the title " Writs." At the hearing the plaintiff should be prepared to produce, if required, an affidavit of due service of the claim. Indorsement on Claim to Revive. If in any case it is thought necessary or proper to file a claim to revive, a copy of sUch claim, with an indorsement thereon, must be served on the defendant thereto. As the form of indorsement to be made on copies of claims may be varied " as circumstances may require'' (see 15 & 16 Vict. c. 86, S. 8), and as the indorsement on a copy of a claim is in lieu of the writ of summons heretofore issued, the form of writ of summons on a claim to revive provided by the Orders of 22nd April, 1850, may be taken as a guide in the present case. No. 83. Proposed Form of Indorsement on Claim to Revive. Victoria E.. To the within named defendant greeting. We command you the said [" and every of you," where there is more than one defendant], that within eight days after service hereof on you, exclusive of the day of such service, you cause an appearance to be entered for you in PARTIES SUMMONED TO ATTEND THE PROCEEDINaS. (J our High Court of Chancery to the within claim of the \ within named . And further that within sixteen day^'^.^ after such service you do show good cause, if you can, why the suit and all proceedings thereunder should not be revived against you, and be in the same plight and condition as the same were in at the time of the said abatement thereof. Witness ourself at Westminster, the day of , in the year of our reign. Note. — Appearances are to be entered at the Record and Writ Clerks' ofl&ce, in Chancery Lane, London ; and if you desire to show cause you are to enter a caveat at the same office within the time limited, otherwise the suit wiU stand revived, or may be carried on without further notice. Suggestions loith respect to persons who may he required to attend the Proceedings as Parties to a Suit commenced hy Claim. By Order 18, 22nd April, 1850, it is provided that, if, upon the proceedings before the Master, under any order made on the hearing of a claim, it appears to the Master that some persons, not already parties, ought to attend or to be enabled to attend the proceedings before him, he is to be at liberty to certify the same ; smd upon production of such certificate to the Record and Writ Clerk, the plaintiff may sue out a writ of summons, requiring the persons named in such certificate to appear to the writ, and such persons are thereupon to be treated as defendants to the suit. And by Order 19, 22nd April, 1850, it is directed that such writ of summons shall be in the form set forth in No. 2 of Schedule B. appended to those orders, with such variations as circumstances may require. The powers and authorities given to the Masters in ordinary may now be exercised by the Judge sitting in chambers. — See 15 & 16 Vict. c. 80, s. 36; and Order 58, 16th October, 1852. The provisions of the Act 15 & 16 Vict. c. 86, s. 42, and the rules there given, (under which persons who, formerly, would have been named as parties to the suit need not now be made parties, but are nevertheless to be served with notice of decree, and thereupon to be at liberty to obtain an order for leave to attend the proceedings), will no doubt apply to many of the persons to whom the provisions of Orders 18 and 19, 22nd April, 1850, are applicable. 102 PARTIES SUMMONED TO ATTEND THE PROCEEDINGS. Still, cases may occur in which it will be deemed necessary and proper that some persons, not already parties, " ought to attend the proceedings," and " he treated as defendants to the suit." And it is presumed that in such cases a certificate would be made at chambers, to the same effect as the certificate heretofore made by the Master, and directing service, upon the persons required to appear and attend the proceedings, of a duly indorsed copy of the claim. Some difficulty would, perhaps, be felt with reference to the form of the indorsement to be made on the copy of the claim to be thus served. However, as the writ of summons heretofore used in such cases might be varied as circumstances should require (Order 19, 32nd April, 1850), and as the indorsement on the copy of a claim requiring a party to appear is in lieu of the writ of summons heretofore issued (15 & 16 Vict. c. 86, s. 3), it is suggested that the indorsement on the, copy of the claim to be served upon the persons required to attend the proceedings as parties to the suit, might be to the same effect as the writ of summons, No. 3, in Schedule B. to Orders, 33nd April, 1850, and in the following form : — No. 84. Proposed Form of Indorsement on Claim to he served on persons required to attend the Proceedings as Parties to the Suit. Victoria E. To greeting. Whereas hath caused to be filed the within claim. And whereas by an order made in the said cause, dated the day of , it was ordered [set forth the mandatory part of the order made on the hearing of the claim]. And whereas , chief clerk to , the Judge to whose court the said cause is attached, hath by a certificate dated the day of , which was approved by the said Judge on the day of , and duly filed on the day of , certified that you ought to be a party to the said cause, and to be served with a duly indorsed copy of the claim therein. Therefore we com- mand you that within eight days after service hereof on you, exclusive of the day of such service, you do cause an appearance to be entered for you in our High Court of Chancery, and that you do attend the proceedings in the FORM OF "special CASE." 103 said cause as a party defendant thereto, and do and observe such things as are by our said Court ordered and directed in the said cause. Note. — ^Appearances are to be entered at the Record and Writ Clerks' office, Chancery Lane, London ; and if you neglect to appear, the proceedings will be carried on without further notice to you. SPECIAL CASE. Under the Act 13 ^ 14 Vici. c. 35. No. 85. In Chancery. Master of the EoUs, or Lord Chancellor. Vice-Chancellor Between [set forth the names of the parties, Plaintiffs and Defendants]. Special case stated for the opinion of the High Court of Chancery, pursuant to the Act 13 & 14 Vict., c. 35. 1. That, &c. [set forth concisely, in consecutively/ numbered para- graphs, a statement of such facts and documents as may be necessary to enable the Court to decide the questions raised by the case]. See section 8. The questions submitted for the opinion of the Court are — 1. Whether, &c. 2. Whether, &c. Counsel for the Plaintiffs. Counsel for the Defendants. Form of " Special Case," and who may concur therein. A special case is to be intituled as a cause, some or one of the parties interested being named as plaintiffs or plaintiff, and the others or other of them as defendants or defendant. And^ in the title, lunatics and infants are to be described as such. 104 APPOINTMENT OP " SPECIAL GUARDIAN." 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 is to be named in the title. — Section 7. The committee of the estate of any lunatic interested, or claiming to be interested, in any question to be submitted by special case for the opinion of the Court, may, after being authorised by the Lord Chancellor, concur in such case in his own name, and in the name and on the behalf of the lunatic. — Section 3. A husband interested, or claiming to be interested, in right of his wife, in any such question, may concur in such case in his own name and in the name of his wife, where the wife has no claim to any interest distinct from her husband. And a married woman, having or claiming an interest in any such question distinct from her husband, may, in her own right, concur in such case, provided that her husband also concurs therein. — Section 3. The guardian of any infant interested, or claiming to be interested, in any such question, may concur in such case, in the name and on the behalf of the infant, unless such guardian has an interest in such question adverse to the interest of the infant therein. — Section 4. The word "guardian" means father or testamentary guardian, or guardian appointed by the Court of Chancery (not being a special guardian appointed under the provisions of the Act 3 & 14 Vict. c. 35). See Interpretation Clause, section 34. Therefore guardians, other than special guardians, may be named, and may concur in the case, without any application to the Court for an order for that purpose. Appointment of " Special Guardian" /or persons under disability. The Court may, by order, to be made upon the application of any person on behalf of a lunatic not found so by inqui- sition, or upon the application of an infant, by motion or petition, appoint any person, shown by afi&davit to be a fit person, and to have no interest adverse to the interest of such lunatic or infant, to be the special guardian of such lunatic or infant, for the purpose of concurring in such special case. And the Court may require that notice of such application shall be given to the proposed guardian. — Section 5. The application should be made as In the Matter of the Infant, and in the matter of the Act. If the order appointing the special guardian was made PREPARATION OF " SPECIAL CASE " PROCEEDINGS THEREON. 105 without notice to such guardian, the Court may, upon the application of such guardian, discharge such order, and may thereupon appoint some other fit person to be the special guai-dian in lieu of the special guardian so discharged. — Section 6. Every special case to which an infant or lunatic is a party by his guardian or special guardian, is to state how such guardian or special guardian was constituted ; and where any married woman, having or claiming any interest distinct from her husband, is a party to the case, it is to be stated therein that she concurs in her own right. — Section 9. Preparation of " Special Case." A special case must be ingrossed on parchment, and a £1 Chancery fee fund stamp must be affixed thereto. — Schedule 3, Order 30th January, 1857. The name and address of the plaintiff's solicitor may be indorsed, or it may be inserted in a note at the foot. A special case must be signed by counsel for all parties, and filed in the same manner as bills are filed, and the parties named as defendants may enter appearances thereto in the same manner as defendants appear to bills ; and no defendant is required to take an office copy of the special case, but an office copy is to be taken by the plaintiff. — Section 10. The same counsel may sign the special case on behalf of all parties— plaintiffs and defendants. Proceedings on " Special Case." After a special case has been filed, and the defendants have appeared thereto, all the parties to such case are subject to the jurisdiction of the Court in the same manner as if a bill had been filed, and the defendants had appeared thereto, and are to be bound by the statements therein; except as to married women, infants, and lunatics, who are not to be so bound until the Court shall have given leave to set down the special case. — Section 11. So soon as all the defendants have appeared, the special case may be set down for hearing, and subpoenas to hear judgment served. — Section 12. If any party to the special case is a married woman, infant, or lunatic, the special case is set down upon an order obtained for that purpose, and not upon the certificate of the Clerk of Records and Writs. See "Certificate to set down Special Case." 106 FORM OP " ADMINISTBATION SUMMONS." The filing of a special case and the entering of appearances thereto by the parties named as defendants therein, is to be taken to be a lis pendens and may be registered under the Act 2 & 3 Vict., c. 11.— See section 17. The Court may, at any time after the filing of the special case and the entering of appearances thereto by the defendants, order any document, admitted thereby to be in the possession of any party to such case, to be deposited and produced in such manner and for such purposes as the Court shall think fit. — Section 18. The proceedings under the Act are to be governed and regulated by the provisions of such Act, so far as the same extend, and in so far as the same do not extend are, as well with respect to the persons who ought to be made parties as in ' every other respect, to be governed and regulated by the niles, orders, and practice of the court in suits instituted by bill, so far as the same can be applied thereto. — Section 32. The fees to be received and taken for filing a-special case, and all proceedings thereupon, are to be the same as those received and taken for filing a bill and for proceedings in suits instituted by bill. — Order 28, 2nd November, 1850. But there is no distinction of higher or lower scale in the amount of the fee payable for filing a special case. ^£1 is payable in all cases. — Sched. 3, Order 30th January, 1857, An order made in a special case may be inrolled in like manner as orders made in ordinary suits. For information as to the amendment of a special case, see " Amendments." ADMINISTBATION SUMMONS. No. 86. In Chancery. In the matter of the estate of , late of , in the parish of , in the county of , deceased, against Upon the application of , of , in the county of , who claims to be a creditor upon the estate of the " ADMINISTRATION SUMMONS " PERSONAL ESTATE. 107 above-named — — , let , the executor of the said , attend at my chambers [in the Eolls Yard, Chancery Lane, Middlesex], [or, at No. — , Square, Lincoln's Inn, Middlesex], on the day of , at of the clock in the noon, and show cause, if he can, why an order for the administration of the personal [or real, or real and personal] estate of the said by the High Court of Chancery should not be granted. Dated day of . Master of the Eolls, or, Vice-Chancellor. Note. — If the above-named does not attend either in person or by his solicitor at the time and place above- mentioned, such order will be made in his absence as the Judge may think just and expedient. This summons was taken out by , of , in the county of , solicitors for the above-named . SumnKmsfor administration of Personal Estate. Anj person claiming to be a creditor, or a specific, pecuniary, or residuary legatee, or the next of kin, or some or one of the next of kin of a deceased person, may apply for and obtain of course, without biU or claim filed, or any other preliminary proceedings, a summons from the Master of the Rolls, or any of the Vice-ChanceUors, requiring the executor or adminis- trator of such deceased person to attend for the purpose of showing cause why an order for the administration of the personal estate of the deceased should not be granted, and upon proof by affidavit of the due service of such summons, and upon proof of such other matters as the Judge shall require, such Judge may make the usual order for the administration of the estate of the deceased, with such variations as the cir- cumstances of the case may require, and the order so made is to have the force and effect of a decree to the like effect made on the hearing of a cause or claim. And the Judge is to have fuU discretionary power to grant or refuse the order, or to give any special directions touching the carriage or execution of the order as he may think fit. — 15 & 16 Vict. c. 86, s. 45. 108 PREPAKATION OF SUMMONS — FILING DUPLICATE. . Summons for administration of Meal Estate. Any person claiming to be a creditor of any deceased person, or interested under his will, may apply for and obtain in the manner before mentioned with respect to the personal estate of a deceased person, an order for the administration of the real estate of a deceased person, where the whole of such real estate is by devise vested in trustees who are by the will empowered to sell such real estate, and authorised to give receipts for the rents and profits thereof, and for the produce of the sale of such real estate, and all the provisions contained in section 45, with respect to personal estate, are to be applicable to such order with respect to real estate. — 15 & 16 Vict. c. 86, s. 47. Preparation of Summons. The summons is to be in the foregoing form, with such variations as circumstances may require (Order 43, and Schedule E, Orders 7th August, 1853), and is to be prepared by the party or his solicitor. It should be prepared on a sheet, or half sheet, of ordinary foolscap paper. Printed forms are, however, more generally used. If, where husband and wife are applicants, the husband is interested in right of his wife, or where the applicants are infants, &c., by a next friend, after setting forth the names and addresses of the applicants, or of the next friend, say " which said [naming the married tvoman, or the infants] claims to be interested," &c. The address of the applicant should in all cases appear in the summons. If the applicant is a married woman, infant, or person of unsound mind, applying by a next friend, the name and address of the next friend must be set forth in the summons, and the written authority of such next friend is to be filed with the duplicate. For form of authority, see form No. 35. Two copies of the summons must be presented at the chambers of the Judge for sealing — one will be sealed as the original summons, the other as a duplicate. An unstamped copy must also be left at the chambers of the Judge. — Order 3, 16th October, 1853. The original summons must be stamped with a 6s. Chancery fee fund stamp, and the duplicate with either a 5s. (higher scale), or a Is. (lower scale) Chancery fee fund stamp. — Schedule 3 of Orders, 30th January, 1857. Filing Duplicate, and Sealing and Serving Copies. A duplicate of the summons is, previously to the service SEALING AND SERVING COPIES OF SUMMONS. 109 thereof, to be filed in the Record and Writ Clerks' office, and no service upon any executor or administrator is to be of any validity, unless the copy so served is stamped (sealed) with a stamp of such office indicating the filing thereof, and the filing of such summons is to have the same effect with respect to lis pendmis as the filing of a bill or claim. — 15 & 16 Vict. c. 86, s. 46, and Order 4, 16th October, 1853. Each copy for service must be stamped with either a 5s. (higher scale) or a 1«. (lower scale) Chancery fee fiind stamp.— Schedule 3 of Orders, 30th January, 1857. Upon presenting a copy for sealing, a prsecipe must be left with the officer in the following form : — No. 87. In Chancekt. Re deceased. Seal one copy of administration summons for service. Dated day of . [Name, 8^c., of the Solicitor or party presenting the copy for sealing.'] One praecipe is sufficient for any number of copies sealed at the same time, and in the same cause. A copy should be sealed and served for each party required to appear upon the summons, unless, to save expense, any solicitor concerned for several parties is willing to accept service of one copy. And (unless any solicitor will accept service) the service of a summons is to be effected in like manner as service of a bill or claim, that is, either personally or at the residence of the party. A peer or a corporate body may be served with like copies and in like manner as other parties are served. The summons is to be served seven clear days before the return thereof. — Order 5, 16th October, 1853. If from any cause it has not been served upon some of the parties seven clear days before the return thereof, an indorse- ment may be made upon the summons, and upon a copy thereof stamped (sealed) for service, appointing a new time for the parties not before served to attend, and such indorsements are to be sealed at the Judge's chambers^ and the service of the copy so indorsed and sealed is to have the same force and effect as the service of a copy of the summons as originally issued. And where any of the parties have been served before 110 FOEM OP "general SUMMONS'' ORIGINATING PROCEEDINGS. such indorsement, the hearing of the summons may, upon the return thereof {the return as to those who were served before the indorsement was made), be adjourned to the new time so appointed. — Order 6, 16th October, 1853. It is -not necessary that the indorsement referred to should be made on the duplicate filed at the Eecord and "Writ Clerks' office. In fact, the whole proceeding, in reference to the indorsement^ is conducted at the Judge's chambers. If no service whatever has been effected upon any of the parties, the return may be altered in the original summons, and upon production at the Record and Writ Clerks' office of such original summons so altered — the alterations being authenti- cated at chambers — the duplicate will be altered in accordance therewith, without an order to amend, and any copy which may have been sealed for service may be altered and resealed without further fee. Proceedings after Service of Administration Summons. In all cases where proceedings originate in chambers, the parties served are, before they are heard in chambers, to enter appearances in the Record and Writ Clerks' office, and to give notice thereof. — Order 7, 16th October, 1852. An appearance cannot be entered to a summons by default. The party serving the summons should be prepared at the hearing with an affidavit of due service of the summons. — 15 & 16 Vict. c. 86, s. 45. Orders made in proceedings upon administration summonses are regarded as orders made in suits between party and party, and may be enforced and inrolled in like manner. Orders made in proceedings upon other summonses origi- nating proceedings in chambers may be enforced and inrolled in like manner as orders made in "Matters." For information respecting the amendment of a summons originating proceedings in chambers, see " Amendments." GENERAL SUMMONS ORIGINATING PROCEED- INGS IN CHAMBERS. In Chancery. ^°- ^^• [Titk of Came or Matter.] Let all parties concerned attend at my chambers [in the Rolls Yard, Chancery Lane, Middlesex], [or, at No. — , EVIDENCE. Ill Square, Lincoln's Inn, Middlesex], on the day of , at of the clock, in the noon, on the hearing of an application on the part of [here state on whose behalf the amplication is made, and the precise object of the ajiplicafion] . Dated this day of , 185 — . , Master of the Rolls, or, , Vice-Chancellor, This summons was taken out by , of , in the county of , solicitors for . To . ITie following note to be added to the original summons where proceedings originate in chambers, and when the time is altered by indorsement, the indorsement to be referred to as below. Note. — If you do not attend either in person or by your solicitor at the time and place above-mentioned [or, at the place above-mentioned at the time mentioned in the indorsement hereon], such order will be made and proceedings taken as the Judge may think just and expedient (a). The observations appended to the preceding form of admi- nistration summons are in most respects equally applicable in the case of a " General Summons " originating proceedings. EVIDENCE. For the commencement or heading of depositions no parti- cular forms are prescribed. But the following are such as are generally used : — (a) In cases where there are no parties to serre, the above Note should be omitted. 112 foems of headings of depositions. Before an Examinee in Oedinaey. No. 89. On Examination in Chief, and including Cross-Examination and Re-Examination. In Chancery. {Set forth the Full Title of the Cause or Matter.] Depositions of witnesses sworn and examined in the above cause \or matter] . Before me, Examiner. Sworn ") A. B., of &c., called on behalf of — day of J saith, as follows : — • I was not, &c., &c. If the Witness is Cross-Examined, say: — Cross-examined on behalf of . I am, &c., &c. If the Witness is He-Examined, say; — Ee-examined. I shall be, &c., &c. No. 90. Cross-Examination of a Witness upon his Affidavit. In Chancery. [Set forth the Full Title of the Cause or Matter.] Deposition of a witness cross-examined in the above cause [or matter]. Before me, Examiner. Sworn ") A. B., of &c., cross-examined on behalf day of J of , on his affidavit, sworn in the above cause [or matter], on the day of . foems of headings of depositions. 113 Befoee a Special Examinee. No. 91. On Examination in Chief, and including Cross-Examination and Re-Examination. In Chancery. ~- - ■ [Set forth the Full Title of the Came or Matter.] Depositions of witnesses sworn and examined in the above cause [or, matter] at , in the county of . Before me , Special Examiner appointed by an order of the Court, dated the day of . Sworn ■\ A. B. of, &c., called on behalf of , day of j saith as follows : — I was not, &c. If the Witness is Cross-Examined, say : — Cross-examined on behalf of I am, &c. If the Witness is Me-Examined, say : — * «r Re-examined. I shall be, &c. If the examinations of the witnesses have been taken at different places, then, in the heading, say " Depositions of witnesses sworn and examined in the above cause [or, matter] at the times and places hereinafter mentioned. Before me, &c." And a statement of the time and place must precede the par- ticular examination taken at such time and place, thus : — No. 92. At , in the county of — Sworn ] A. B. of, &c., called on behalf of • day of ; saith as follows : — 114 FOEMS OF HEADINGS OF DEPOSITIONS. No. 93. Cross-Examination of a Witness upon his Affidavit. In Chancery. [Set forth the Mill Title of the Cause or Matter.] Deposition of a witness cross-examined in the above cause [or, matter] at , in the county of (a). Before me , Special Examiner appointed by an order of the Court, dated the day of . Sworn ') A. B. of, &c., cross-examined on behalf day of ■ j of on his affidavit sworn in the 1 A. j of- above cause [or, matter] on the • day of . Befoee the Chief Cleek of a Judge at Chambees. No. 94. On Examination in Chief, and including Cross- Examination and Re-Examination. In Chanceey. [Set forth the Full Title of the Came or Matter.] Depositions of witnesses sworn and examined in the above cause [or, matter]. Before me, , Sworn ) , ^ , Chief Clerk. J q£ j A. B., of, &c., saith as follows : — No. 95. On Cross-Examination of a Witness upon his Affidavit. In Chanceey. [Set forth the Full Title of the Cause or Matter.] Deposition of a witness cross-examined in the above cause [or, matter]. Before me, , Chief Clerk. Sworn \ A. B. of, &c., cross-examined on behalf day of ) of on his affidavit sworn in this cause [or, matter] on the day of . (o) See otservatxon on preceding page, commencing, "If the examinations," &e. CERTIFICATE TO BE SIGNED BY THE EXAMINER. 115 DEPOSITIONS DE BENE ESSE. Before an Examiner in Ordinary. No. 96. In Chancery. iSetfwth the Full Title of the Cause.] Deposition of a witness sworn and examined de bene esse, pursuant to an order made in the above cause, dated the day of . Before me, ■ , Examiner. Sworn \ A. B., of, &c., called on behalf day of j of , saith as follows : — I am, &c. Before a Special Examiner. No. 97. In Chancery. \_Set forth the Full Title of the Cause.] Deposition of a witness sworn and examined Examiner, or Special Examiner [as the case may he]. No. 99. Applicable to the Case of a Person who could not Sign his Name {his hand being hurt), but made his Mark. I hereby certify that the evidence contained in this and the preceding sheets of paper was taken by me, and afterwards read over to the witness, who afl&xed his mark thereto in the presence of the parties attending. Examiner. Under the Mark the folloumg Additional Memorandum was Written and Signed by the Examiner. The witness's mark affixed by the consent of all parties, in consequence of his infirmity and his hand being hurt. Examiner. In a case, Irwin v. Hamer, 9th May, 1857, where the exam- inations had been taken at dififerent times by the two examiners in ordinary, the heading of the depositions was varied only by saying " Before us," instead of " Before me ; " and the form of certificate at the end was as follows : — We do hereby certify that the evidence contained in this and the preceding sheets of paper (so far as the same respectively appear in our respective handwriting), was taken before us, and was read over to the respective deponents, who signed their respective depositions in the presence of the parties attending. ' ( Examiners. evidence where replication filed. 117 Evidence to be used at the Hearing of a Cause. I. Where a ReplicaUon has been Filed. When issue shall have been joined in any cause the plaintiff and defendants respectively are at liberty, without notice, to verify their respective cases, either wholly or partially by affi- davit, or wholly or partially by oral examination of witnesses before one of the examiners of the court, or before an ex- aminer to be specially appointed by the Court. — Order 4, 13th January, 1855. If the replication was filed before the 21st January, 1855, the evidence is to be taken in the manner prescribed by Orders 31, 32, and 33, 7th August, 1852, unless the parties shall con- sent, or the Court shall order, that the same shall be taken in the mode prescribed by the General Orders 21st January, 1855.— Order 7, 21st January, 1855. Time for Closing the Evidence. The evidence on both sides to be used at the hearing of the cause, whether taken upon affidavit or orally, and including the cross-examination and re-examination of any witness or witnesses, is to be closed within eight weeks after issue joined. But if such eight weeks shall expire in the Long Vacation, then the time for closing the evidence is extended to the fifth day of the ensuing Michaelmas term. — Order 5, X3th January, 1855 ; also Order 1, 1st June, 1854. After the time fixed for closing the evidence, no further evidence, whether oral or by affidavit, is to be receivable with- out special leave of the Court. — 15 & 16 Vict. c. 86, s. 38. The Court may, however, enlarge the time. — 15 & 16 Vict. c. 86, s. 38. Applications to enlarge the time for closing the evidence may be made at chambers upon notice (by summons) to all parties as between whom issue has been joined. The summons should be taken out so as to be returnable before the time sought to be enlarged will expire. The cause may, by consent, be set down for hearing at any time before the expiration of the time for closing the evidence* Such consent should be in the following form : — No. 100. We consent to this cause being set down for hearing forthwith, notwithstanding the time for closing the evidence has not elapsed. 118 EVIDENCE AFTER EEPLICATION — CEOSS-EXAMINATIONS. The consent must be signed on behalf of the plaintiff, as well as of every defendant with whom the plaintiff has joined issue. As to Evidence taken before Issue joined. No affidavit or deposition filed or made before issue joined is, without special leave of the Court, to be received at the hearing, unless — within one month after issue joined, or within such further time as the Court may allow — written notice shall have been given, by the party intending to use the same, to the opposite party of his intention in that behalf. — Order 6, 13th January, 1855. Ceoss-Examinations upon Affidavits. Notice to he given to the Witness. Any witness who has made an affidavit filed by a party to a cause, and intended to be used by any party to such cause at the hearing thereof, is to be subject to be cross-examined and re-examined within one month after the expiration of eight weeks after issue joined, or after the expiration of the fifth day of the ensuing Michaelmas term, if the eight weeks expire in the Long Vacation, in the same manner as if the evidence in his affidavit had been given by him orally before the examiner ; and such witness is bound to attend before such examiner for such purpose, upon receiving proper notice, and payment of his reasonable expenses, in like manner as if he had been served with a suhpcena ad test. — 15 & 16 Vict. c. 86, s. 38, and Order 5, 13th January, 1855, and Order 1, 1st June, 1854. Notice to be given to the opposite Party. Any party desiring to cross-examine a witness who has made an affidavit in any cause intended to be used at the hearing thereof, is to give forty-eight hours' notice to the party on whose behalf such affidavit was filed, or to the party intend- ing to use the same, of the time and place of such intended cross-examination, in order that such party may, if he shall think fit, be present at such cross-examination ; and the re- examination of any such witness is immediately to follow his cross-examination, and is not to be delayed to a future period. — Orders 34 and 35, 7th August, 1853. The " month " for cross-examining a witness who has made ail affidavit intended to be used at the hearing, and the "four weeks," after the expiration of the time for closing the evidence for setting down the cause, are cotemporaneous. PRODUCTION OF WITNESS AT THE HEARING. 119 Within what Time the Emdence is to he filed. Notwithstanding the parties have the whole of the last day of the time for closing evidence, for taking the evidence, and notwithstanding oral examinations, especially those taken away from London, are frequently not transmitted and filed until after the day on which the time for closing the evidence expires, still, in practice, it is required that, where the evidence is taken hy affidavit, the affidavits shaU he filed on or before the last day of the time for closing the evidence (a). The reason for this appears to be that, where the evidence is taken orally, the whole evidence is completed, the cross- examinations and re-€xaminations being taken then and there in the presence of the parties ; whereas, where the evidence is taken by affidavit, the cross-examination cannot be determined on until the affidavits are filed, and, therefore, if such affidavits are not filed on or before the last day of the time for closing the evidence, the parties would not have the full time (a month), within which to cross-examine the witnesses thereon. It is not required, in practice, that notice of filing of the evidence shall be given hy the one party to the other. Production of Witness or Party at the Hearing. Upon the hearing of any cause, whether commenced by bill or claim, the Court may, if it sees fit so to do, require the production and oral examination before itself of any witness OT party in the cause, and may direct the costs of and attending the production and examination of such witness or party to be paid by such of the parties to the suit or in such manner as it may think fit.— 15 & 16 Vict. c. 86, s. 39. In practice, the provisions of the before-recited section have been extended to persons not parties to the suit, and who have not been previously examined as mtnesses in the cause. Upon the direction of the Court, a subpoena issues, and such direc- tion is given in the shape of a note from the registrar. See form of such note under title " Subpoena ad test." Evidence taken subsequently to the hearing of a cause, is to be taken, as nearly as may be, in the same manner as the evidence with a view to- such hearing. — 15 & 16 Vict. c. 86, sec. 41. In suits in which issue shall have been joined before the (o) If justice requires it, an opportunity will Tie afforded for replying to affidayita filed on the last day. See case cited in 3 Jur, N. S. 533. 120 EVIDENCE ON MOTION FOR DECREE. 2nd November, 1852, the evidence to be used at the hearing of the cause is to be taken according to the old practice upon written interrogatories, unless the parties consent, or the Court directs, that the evidence shall be taken in the manner prescribed by the 15 & 16 Vict. c. 86, and Orders, 7th August, 1852.— Order 39, 7th August, 1852. In suits in which issue shall have been joined on or after the 2nd November, 1852, but before the 21st day of January, 1855, the evidence to be used at the hearing of the cause is to be taken according to the practice prescribed by the Act 15 & 16 Vict. c. 86, and the Greneral Orders, 7th August, 1853, unless the parties shall consent, or the Court shall order, that the same shall be taken in the mode prescribed by the Orders, 13th January, 1855. — Order 7, 13th January, 1855. If, in any case where the replication was filed before the 8th day of May, 1845, no rules were entered, so that pub- lication has not duly passed, rules cannot now be entered, but the plaintiff must apply to the Court for leave to file a repli- cation in the new form, and then the time for closing the evidence will be reckoned under the present practice. II. Where the Cause is to he heard on Motion for Decree. After the time for answering has expired (but before repli- cation), the plaintiff may move for a decree (15 & 16 Vict. c. 86, B. 15), upon giving one month's notice of such motion to the defendant.— Order 22, 7th August, 1852. Evidence to he used, and Time for preparing it. Affidavits may be filed and used in support of and in oppo- sition to such motion, and if an answer has been filed it is to be treated as an affidavit for the purposes of the motion. — 15 & 16 Vict. c. 86, s. 15. The affidavits in support are to be filed before service of the notice of motion, and a list of such affidavits is to be set forth at the foot of such notice. — Order 23, 7th August, 1852. The defendant, within fourteen days after the service of such notice, is to file his affidavits in answer, and to furnish the plaintiff or his solicitor with a list thereof. — Order 24, 7th August, 1852. But if such fourteen days shall expire in the Long Vacation, then the time for filing such affidavits in answer is extended to the fifth day of the ensuing Mich%elmas term. — Order 1, 1st June, 1854. The plaintiff, within seven days after the expira- tion of such fourteen days, or of the extended time, is to file bis affidavits in reply, and furnish the defendant or his solicitor EVIDENCE ON MOTIONS, PETITIONS, ETC. 121 with a list thereof, and except so far as such last-mentioned affidavits are in reply, they are not to be regarded by the Court, unless upon the hearing of the motion the Court gives the defendant leave to answer them, in which case the costs of such affidavits, and of the further affidavits consequent thereon, are to be paid by the plaintiff, unless the Court otherwise orders. — Order 25, 7th August, 1852, and Order 1, 1st June, 1854. No further evidence on either side is to be used upon such motion without leave of the Court. — Order 26, 7th August, 1852. It would appear from the terms of the 40th section of the Act 15 & 16 Vict. c. 86, and especially of the Orders 36 and 37, 7th August 1852, that the provisions of such section and of such orders apply oMy to evidence to be used on any claim, motion, petition, or other proceeding before the Court, not being the hearing of the cause. Now a motion for decree, enter- tained by the Court, is certainly equivalent to a hearing of the cause. Still, it has been decided that for the purposes of such motion the defendant may orally cross-examine the plaintiff. — Williams v. Williams, 17 Beav. 156. For a case in which evidence in chief, to be used on a motion for decree, was taken orally, see Pellatt v. Nichols, 29 L. T. 289. Evidence to be used on ant Claim, Motion, Petition, OE OTHER Proceeding before the Court, not being the Hearing op a Cause. Notice to he given to the Witness who is to be Examined. Any party in any cause or matter may, by subpoena ad test, or duces tecum, require the attendance of any witness before an ordinary or specially appointed examiner, and examine such witness orally, for the purpose of using his evidence upon any claim, motion, petition, or other proceeding before the Court, not being the hearing of a cause, in like manner as such witness would be bound to attend and be examined with a view to the hearing of a cause. Notice to be given to the opposite Party, or his Solicitor, of intention to examine the Witness. And the party requiring such attendance is to give to the opposite party forty-eight hours' notice at least of his intention to examine such witness, and of the time and place of such examination, unless the Court thinks fit to dispense with such notice.— 15 & 16 Vict. c. 86, s. 40, and Order 86, 7th August, 1852. 132 MODE OF TAKING THE EVIDENCE. Notice to be given to a Witness who is to be Cross-Examined upon his Affidavit. And where it is desired to cross-examine any party, whether a party to the cause or matter or not, who has made an affidavit to be used, or which shall be used, on any claim, motion, petition, or other proceeding before the Court, not being the hearing of a cause, such party is bound, on being served with such writ of subpoena, to attend before an examiner for the purpose of being cross-examined. Notice to be given to the opposite Party, or his Solicitor, of intention to Cross-Examine a Witness upon his Affidamt. And the party desiring to cross-examine such deponent is to give to the opposite party forty-eight hours' notice of the time and place of such intended cross-examination, in order that such party may, if he shall think fit, be present at such cross-exami- nation. — 15 & 16 Vict. c. 86, s. 40 ; and Order 37, 7th August, 1853. Depositions de Bene Esse. Witnesses examined de bene esse are usually examined vvvA voce in the manner prescribed by the Act 15 & 16 Vict. c. 86, and the general orders made in pursuance thereof, and the depositions so taken are filed in the same manner as other depositions. Ofl&ce copies of depositions de bene esse will he made and delivered out by the Clerks of Records and Writs as soon as such depositions are filed. The evidence being taken in the presence of, and therefore known to, the parties gene- rally, the withholding of the office copy could be of no advantage to either party. But the we of such evidence still remains subject to the restrictions of former practice. For instance, if the party examined de bene esse is living, and able to be examined at the time when issue is joined, and the evidence is being taken in the cause, the party is to be examined again, unless the leave of the Court be obtained to J«e the evidence taken de bene esse. And in no case can the examination taken de bene esse be used without leave of the Court. MODE OF TAKING THE EVIDENCE. Practice of taking Evidence upon Interrogatories abolished. The examining of witnesses in causes in the Court of Chancery upon written interrogatories, and all the practice of the said court in relation thereto, so far as such practice is inconsistent with the mode prescribed for examining such APPOINTING EXAMINER— TAKING THE EVIDENCE. 128 witnesses by the Act 15 & 16 Vict. c. 86, and the practice relating thereto, is abolished. But the Court may order any particular witness or witnesses, either within or out of the jurisdiction of the Court, to be examined upon interrogatories ; and with respect to such witness or witnesses, the former practice of the court in relation to the examination of witnesses IS to apply, save only so far as the same may be varied by general order, or by any order of the Court with reference to any particular case.— 15 & 16 Vict. c. 86, s. 28. It is not necessary to sue out any commission for the exami- nation of any witnesses within the jurisdiction of the Court; and any examiner ajipointed by any order of the Court is to have the like power of administering oaths as commissioners heretofore had.— 15 & 16 Vict. c. 86, s. 35. The examiner need not take any oath ; and for the form of oath to be administered to a witness, see "Jurats and Oaths." Oral Examinations to he taken by an Examiner. AU witnesses examined orally are to be so examined by or before one of the examiners of the court, or by or before an examiner to be specially appointed by the Court, the examiner being furnished by the plaintiff (a) with a copy of the bill, and of the answer, if any ; and such examination is to take place in the presence of the parties, their counsel, solicitors, or agents ; and is to be conducted as to examination, cross-examination, and re-examination,, as nearly as may be in the mode in use in courts of common law, with respect to a witness about to go abroad, and not expected to be present at the trial of a cause. — 15 & 16 Vict. c. 86, s. 31. A special examiner is usually appointed in cases where, under the former practice, it would have been necessary to issue a commission to examine wit- nesses, that is, where the witnesses reside or are to be examined beyond twenty miles from London. Special examiners are also usually appointed when the evidence is to be taken abroad. Sow the Depositions are to be taken by an Examiner. Depositions taken orally are to be taken down in writing by the examiner, not ordinarily by question and answer, but in the form of a narrative, and when completed are to be read over to and signed by the witnesses in the presence of the parties attending. If the witness refuses to sign the depositions, then the examiner is to sign them ; and upon all examinations the examiner may state any special matter to the Court as he shall (a) This means, by the party instmctiDg the examiner. 124 PROVISIONS OF OEDEES, 8tH MAY, 1845. think fit. It is in the discretion of the examiner to put down any particular question or answer, if there appears any special reason for doing so. Any question objected to is to be noticed or referred to by the examiner in or upon the depositions, and he is to state his opinion thereon to the counsel, solicitors, or parties, and is to refer to such statement on the face of the depositions, but he is not to decide upon the materiality or relevancy of any question. The Court is to deal with the costs of immaterial or irrelevant depositions. — 15 & 16 Vict. c. 86, s. 33. If any witness refuses to be sworn, or to answer any lawful question, he will be ordered to do so, or stand committed. — 15 & 16 Vict. c. 86, s. -33. If any witness demurs or objects to any question put to him, the question or questions so put, and the demurrer or objection of the witness thereto, are to be taken down by the examiner, and transmitted by him to the Record and Writ Clerks' office, to be there filed; and the validity of the demurrer is to be decided by the Court, and the costs of and occasioned by such demurrer are to be in the discretion of the Court. — 15 & 16 Vict. c. 86, s. 83. The examination of a foreigner not understanding the English language, may be taken down, through an interpreter, in English, and so returned. " If the depositions are taken in a foreign language, and so returned, they are translated by a person appointed by the Court, under an order obtained as of course ; and the order directs that the translator be sworn to the true translation, and that such translation be read at the hearing saving all just exceptions. The Court will not permit the depositions in the foreign language to be delivered out of the office for the purpose of being translated ; the person appointed to make the trans- lation must attend at the office." — See Smith's Chancery Prac- tice (6th edition, 1857), p. 435. There is no rule or restriction with reference to the paper on which the depositions are to be written by the examiner. They are, however, usually written on brief paper. The examiner may examine witnesses up to the last hour of the day on which the time for closing the evidence expires. Provisions of Orders, 8th May, 1845, still applicable. The following provisions of the Orders, 8th May, 1845, are inserted, such provisions being, in several respects, applicable to the duties and fees of special examiners (a). The information (o) See Payw v. IMU, 21 Beav, 65. TRANSMISSION OF THE DEPOSITIONS. 133 will, at any rate, be useful, in cases where the Court may direct the evidence to be taken in the manner prescribed by the General Orders, 8th May, 1845. If the examination of witnesses cannot be completed in one day, and the circumstances of the case permit, the commissioner is to proceed, de diem in diem, during six hours of each day, between the hours of eight in lie morning and six in the after- noon, until the witnesses for all parties are fully examined; nevertheless, the commissioner may, if in his opinion the circumstances of the case require an adjournment, adjourn the proceedings from time to time, and from place to place, in such manner as he thinks j)roper; but he is in all cases to enter on the depositions any adjournment, and, where such adjournment is from place to place otherwise than de diern in diem, the cause or reason of such adjournment ; and he is also to enter on the depositions the hours of the day on which he commences and concludes the examination of witnesses on each day, and the true cause of his not proceeding for the full time of six hours on each day, if such should be the case. — Order 108, 8th May, 1845. The commissioner is, for the performance of his duty, as such commissioner, entitled to receive the following sums of money (a), viz. : For every day in which he is necessarily, and without any default of his own, detained in the execution of the commission, for his expenses, the sum of . . . .£230 For every day in which he is bond fide em- ployed in the examination of witnesses, the further sum of 3 3 For every mile that he travels directly from his place of residence to the place where he opens the commission, and from place to place where the commission is adjourned, and from the place where he last acts in the execution of the commission to his place of residence, the sum of . . . .016 Transmission of Depositions when Examination concluded. When the examination of witnesses is concluded, the original depositions, authenticated by the signature of the examiner, are to be transmitted by him to the Record and Writ Clerks' office, to be there filed, and any party to the suit may have a (a) See the case cited in note (a) on the preceding page. 126 FORM OF EXCEPTIONS FOE INSUFFICIENCY. copy thereof, or of any part or portion thereof. — 15 & 16 Vict, c. 86, s. 34. The mode of transmitting the depositions is in the discretion of the examiner. The examiner may himself personally leave them at the Eecord and Writ Clerks' office, in which case any alterations in the depositions need not (although desirable) be authenticated by the initials of the examiner. But if they are transmitted through any other medium, the alterations must be authenticated; and the depositions should be under a sealed cover. For form of certificate to be appended, see form No. 98. If documents or papers referred to in the evidence as "Exhibits" are returned with the evidence, such documents, unless specially referred to in the evidence as being annexed, wiU be returned to the solicitors of the parties on whose behalf they were produced before the examiner. When Office Copies of Depositions may he Bespoken. Copies of depositions wUl be made, upon request, as soon as they are filed. Depositions taken de bene esse are likewise copied at once, and without any order of Court. But, as before shown, an order is stiU necessary to enable a party to Mse such depositions. EXCEPTIONS FOE INSUFFICIENCY. No. 101. In Answer to Bill. In Chancekt. Between &c. {Full Title of the Came.] Exceptions taken by the above-named plaintiflf to the insufficient answer of the above-named defendant to the bUl of complaint of the above-named plaintiff. 1. For that, &c. 2. For that, &c. In all which particulars the said complainant ex- cepts to the said answer of the said as evasive, imperfect, and insufficient, and humbly prays that the said may be compelled to put in a further and better answer to the said bill. {Name of Counsel.] EXCEPTIONS FOB INSUFFICIENCY FILING. 137 No. 102. In Answer to Interrogatories, with concise Statement prefixed. In CnANCERT. Between &c. [_Full Title of the Game.] Exceptions taken by the above-named defendant to the insufficient answer of the above-named plaintiff to the interrogatories filed by the said defendant for the examination of the said plain- tiff . 1. For that, &c. • 2. For that, &c. In all which particulars the said defendant excepts to the said answer of the said plaintiff ■ imperfect, evasive, and insufficient, and humbly prays that the said plaintiff may be compelled to put in a further and better answer to the said interroga- tories. {Name of Counsel.] Exceptions for insufficiency cannot be filed in the following cases, without leave of the Court : — 1. To a voluntary answer. 3. To a supplemental answer. 3. To the answer of an infant, or of a person of unsound mind not so found by inquisition. 4. To a plea and answer, or demurrer and answer, until the plea or demurrer has been argued, and overruled, or the plea has been ordered to stand for an answer with liberty to except. 5. After replication has been filed. 6. After a notice of motion for a decree has been served. Exceptions for insufficiency may be filed to an answer put in to a supplemental statement. Exceptions for insufficiency should be copied in words at length upon foolscap paper, bookwise. No fee is payable on filing. The name and address of the plaintiff or his solicitor must be indorsed. Time for ftUng Exceptions for Insufficiency. Exceptions for insufficiency must be filed within six weeks 138 EXCEPTIONS FOB INSUFFICIENCY — SUBMITTING. from the day on which the answer was filed. — Order 8, Snd Novemher, 1850. If a plea and answer, or demurrer and answer, is filed, and the plea or demurrer is overruled, the time for excepting for insufficiency is reckoned from the day on which the plea or demurrer is so overruled. If a plea is ordered to stand for an answer with liberty to except, exceptions for insufficiency may be filed thereto, and (unless the Court fixes the time) it is presumed that the six weeks for filing such ex- ceptions would be reckoned from the date of the order directing the plea to stand for an answer. Unless the order gives liberty to except, exceptions for insufficiency cannot be filed. Where the Court gives leave to except to a voluntary or supplemental answer for insufficiency, it is desirable that the time for filing the exceptions should be fixed by the order. The times of vacation are not to be reckoned in the com- putation of the time allowed for filing exceptions for insuffi- ciency. — Order 4, Snd November, 1850. No order is to be made for leave to file exceptions nunc pro tunc. — Order 6, Snd November, 1850. Notice of Filing. Notice of filing the exceptions is to be given on the same day on which they are filed. — Order 24, 36th October, 1843. The notice may be in the following, form : — No. 103. In Chancery. ®. I have this day filed exceptions to the answer of the defendant , in this cause for insufficiency. Dated this day of . To [Name of Defendant's [Name and address of Plaintiff's Solicitor.] Solidtor.] An office copy of the exceptions need not be taken by either party. But the defendant should request the plaintiff to furnish a copy imder the provisions of Order 1, 25th October, 1852. Submitting to Answer the Exceptions. A defendant desiring to prevent exceptions to his answer for insufficiency being set down for hearing, has for that pur- pose only eight days after the filing of such exceptions within which he may submit to the same. — Order 9, 2nd November, EXCEPTIONS FOR INSUFFICIENCY — SETTING DOWN. 129 1850; The submission is made by notice to the plaintiff's solicitor, and payment of 20s. costs. Setting doicn the Exceptions to he Argued. The plaintiff is not to set down exceptions for insufficiency for hearing before the ^Hydration of eight days from the filing of such exceptions, (unless, in a case of election, he is required by notice in writing to set them down within four days, pur- suant to Order 13, 2nd November, 1850, or in a case where the common injunction may be obtained or retained on the allow- ance of such exceptions), but he must set them down tvithin fourteen days from the date of filing, otherwise the answer will be deemed sufficient. — Orders 11 and 14, 2nd November, 1850. A defendant, whose answer is excepted to, alleging that the plantiff is prosecuting him in this court, and also at law for the same matter, may, by notice in writing, require the plaintiff to set down the exceptions within four days from the service of the notice. If the plaintiff does not set down such exceptions within such four days, such defendant is entitled as of course, on motion or petition, to obtain the usual order for the plaintiff to make his election in which court he will proceed. — Order 13, 2nd November, 1850. The plaintiff having shown exceptions as cause against dis- solving an injunction, is to set down such exceptions for hearing at the latest on the day next after showing such exceptions as cause. If he does not, the injunction is dissolved. — Order 15, 2nd November, 1850. Setting down the old Exceptions — The plaintiff has fourteen days after the filing of a further answer within which he may .set down the old exceptions. — Order 16, 2ud November, 1850. Times of Vacation — The times of vacation are not to be reck- oned in the computation of the time allowed for setting down exceptions for insufficiency, except in a case of election where the defendant, by notice in writing, requires the plaintiff to set them down within four days, pursuant to Order 13, 2nd November, 1850. — Order 4, 2nd November, 1850. How the Exceptions are set down. — Exceptions for insuffi- ciency are to be set down for hearing by the registrar at the request of the party filing the same, upon the production of a certificate of the Clerk of Kecords and Writs of the filing of such exceptions, or of the filing of a further answer, and the same are to be advanced and put in the paper for hearing on an early day. — Order 12, 2nd November, 1850. Notice of setting dotvn the Exceptions. — The party setting down exceptions for insufficiency is, on the day on which such 130 FOEM OF EXCEPTIONS FOE SCANDAL. exceptions are set down, to serve a notice thereof on the party ■whose pleading is excepted to, otherwise the exceptions will he deemed not set down. — Order 12, 3nd November, 1850. If, after a defendant's second or third answer is filed, the plaintiff sets down the old exceptions for insufficiency, then the particular exception or exceptions to which he requires a further answer is or are to he stated in the notice of setting down such exceptions. — Order 19, 2nd November, 1850. If, upon the hearing of exceptions, the answer be held suf- ficient, it is to be deemed to be so from the date of the order made on the hearing ; and if the defendant submits to answer, the answer is to be deemed insufficient from the date of the submission. — Order 20, 2nd November, 1850. Upon a third answer being held to be insufficient, the Court may order the defendant to be examined upon interrogatories to the points held to be insufficient, and to stand committed until he shall have perfectly answered the interrogatories ; and the defendant is to pay such costs as the Court shall think fit to award. — Order 22, 2nd November, 1850. EXCEPTIONS FOR SCANDAL, In Chanceey. ^o. 104. Between &c. [Full Title of Cause]. Exceptions for scandal taken by to the bill of complaint of the above-named plaintiff, filed in this cause on the day of . 1st Exception.— For that the said bill is scandalous- from and including the word " ," in the line of the page of the (a) copy of the said bill so filed as aforesaid, down to and including the word " ," in the line of the page of the said copy. 2nd Exception. — For that, &c. In all which particulars this exceptant excepts to the -said bill filed by the said plaintiff as scan- dalous, and he humbly insists that the same ought to be expunged from the said biU. [Name of Counsel.] (a) " Printed" or "written," aa the case may be. If the exceptions are to a pleading or document of which an office copy has been taken, the description of the passage wUl rnn thi^: "from the word ' ,' in the line of the folio of the offiS copy EXCEPTIONS FOR SCANDAL FILING, ETC. 131 In what cases Uxeepiions for Scandal may be Mkd. " Every proceeding before the Court, if made the vehicle of scandal, may be excepted to. Affidavits in lunacy or bank- ruptcy, or in an exparte matter, and any proceedings in Judges' Chambers may be excepted to, in the same manner as a pleading. A stranger may except to a pleading for scandal, but it must be by a special application, and not by an order as of course. One defendant may except to the answer of another defendant for scandal." See Smith's Ch. Pr. 6th ed. 1857, p. 786. Preparing and Filing Exceptions for Scandal. No pleading or othet matter depending before the Court is to be set down for hearing for scandal, unless exceptions are taken in writing and signed by counsel describing the particular passages which are alleged to be scandalous. — Order 23, 2nd November, 1850. Exceptions for scandal should be copied in words at length and on foolscap paper. The name and address of the solicitor or party must be indorsed. The written practice of the court does not prescribe any limi- tation of time within which exceptions for scandal are to be filed. No fee is payable on filing. Notice of Filing to he given. — ^Notice of filing is to be given on the same day, to the party whose pleading is excepted to. — Order 24, 26th October, 1842. The notice may be in a form similar to the form of notice of filing exceptions for insuffi- ciency, for which see form No. 108, p. 128. An office copy need not be taken by either party. But the party filing the exceptions should furnish the other party with a copy, under the provisions of Order 1, 25th October, 1852. Setting doim Exceptions for Scandal. If exceptions filed for scandal are not set down for hearing within six days after the filing thereof, such exceptions are to be considered as abandoned, and the person or party by whom such exceptions were filed, is to pay to the opposite party such costs as may have been incurred by such party in respect of such exceptions.— Order 24, 2nd November, 1850. The times of vacation are not to be reckoned in the com- putation of the time allowed for setting down exceptions for scandal. — Order 4, 2nd November, 1850. Exceptions to any pleading or other matter for scandal are 132 EXPUNGING SCANDAL. to be set down for hearing by the registrar at the request of the party filing the same, upon the production of a certificate of the Clerk of Kecords and Writs of the filing of such excep- tions, and the same are to be advanced and put in the paper for hearing on an early day. — Order 13, 2nd November, 1850. Notice of setting d&wn to he given. — Notice of setting down the exceptions is to be given on the day on which the excep- tions shall be so set down to the party whose pleading or other matter is excepted to, otherwise the exceptions will be deemed not set down. — Order 12, 2nd November, 1850. Expunging the Scandal. Upon production of an order made upon its being held that any pleading or other matter depending before the Court is scandalous, the officer having the custody of such pleading or other matter is to expunge therefrom such parts thereof as the Court has held to be scandalous. — Order 25, 2nd November, 1850. No fee is now payable in the Record and Writ Clerks' office for expunging scandal. No such fee is included in Schedule 3 of Orders 30th January, 1857 ; and see Order 4 of the same Orders. No prescribed form of certificate is used on expunging scandal, but a memorandum, signed by the Clerk of Records and Writs, is made in the margin of the document from which the scandal is to be expunged, over against the part expunged, thus : — No. 105. Scandal expunged pursuant to order dated the day of . C. R. & W. If an office copy has been taken of the document from which scandal is expunged, such office copy, if left at the Record and Writ Clerks' office, will be altered in accordance with the original record, without fee. EXCEPTIONS FOR IMPERTINENCE. Such exceptions cannot now be filed. But as to the costs occasioned by impertinent matter, see 15 & 16 Vict. c. 86, s. 17 and Order 30, 7th Auguet, 1852. ' " ' PART III. PRELIMINARY NOTE. By whom Writs made out, and by whom seakd. The several writs -which are now sealed at the Record and Writ Clerks' office, are to. be made out by the solicitor, in cases where the party sues or defends by a solicitor, and by the party himself, in cases where such party sues or defends in person. — Order 16, 26th October, 1842. Such writs are to be presented for sealing to the Clerk of Records and Writs in whose division the cause or matter is, and the officer to whom any such writ is thus presented for sealing is to ascertain whether such writ is correct in form, and whether the person presenting the same is, according to the course and practice of the Court, entitled to sue out the same ; and if such writ is correct in form, and the person is entitled to sue out the same, such writ is to be forthwith sealed with the seal of the Record and Writ Clerks' office, and, when so sealed, is to have the same force and validity as such writs heretofore had when sealed with the great seal. — Order 4, 26th October, 1842. Official Requirements on Sealing Writs. All writs sealed at the Record and Writ Clerks' office must be either written or printed on parchment, with a clear margin on the left hand side of sufficient width for both the fee stamp and the official seal, and are to be tested as of the day on which they are issued. Not more than three names are to be inserted in one writ of subpoena or writ of attachment ; and each such writ must be stamped with a 5.s. Chancery fee fund stamp. 184 ENFORCING DECREES, ETC. — BY ATTACHMENT. The prsecipe for any writ should be either written or printed on a slip of paper, in size about one-eighth of a sheet of ordinary foolscap, the depth only being greater if the parti- culars required to be set forth are so numerous as to render a greater depth necessary. Hesealing Writs of Attachment. A writ of attachment may be corrected and resealed, if a warrant has not been taken out thereon, or if unexecuted and the act still remains unperformed, and the return day inserted in such writ has not elapsed. If a writ is altered and acted on without being resealed, it may be discharged for irregularity. Full information as to minute details need not be given here, the official requirements in each particular case being, for practical convenience, set forth, as concisely as possible, in the observations appended to the several forms of writs, &c. Any official requirement, other than such as are thus con- cisely stated, and necessary to be regarded in the sealing of any writ, will be complied with by the officer himself, either from his own knowledge of the practice bearing thereupon, or from information contained in the office books. Provisons of the Practice as to Enforcing Decrees, &c. Order to he Served. No writ of execution is to be issued for the purpose of requiring or compelling obedience to any order or decree of the Court, but the party required by any such order or decree to do any act is, upon being duly served with such order or decree, to be held bound to do such act in obedience to the order or decree. — Order 10, 26th August, 1841, as amended 11th April, 1843. Remedy hy Attachment. If any party or person who is by an order or decree made in any suit or matter ordered to pay money or to do any other act in a limited time, shall, after due service of such order or decree, refuse or neglect to obey the same according to the exigency thereof, the party or person prosecuting such order or decree, is, at the expiration of the time limited for the per- formance thereof, entitled to a writ or writs of attachment against the disobedient party or person; and in case such party or person shall be taken or detained in custody under any such writ of attachment, without obeying the order or ENFORCING DECEEES, ETC. BY FI. FA. OR ELEGIT. 135 decree, then the party or person prosecuting the same order or decree is, upon the sheriff's return that the party or person has been so taken or detained, entitled to a commission of sequestration against the estate and effects of the disobedient party or person ; and in case the sheriff shall make the return non est inventus to such writ or writs of attachment, the party or person prosecuting the order or decree is entitled, at his option, either to a commission of sequestration in the first instance, or otherwise to an order for the serjeant-at-arms, and to such other process as he hath heretofore been entitled to upon a return non est inventits made by the commissioners named in a commission of rebellion issued for the non- performance of an order or decree. — Order 11, 26th August, 1841, as amended 11th April, 1843, and 18th July, 1857. Every order or decree made in any suit or matter requiring any party or person to do an act tbereby ordered is to state the time, or the time after service of the order or decree, within which the act is to be done ; and upon the copy of the order or decree which shall be served upon the party or person required to obey the same, there is to be indorsed a memo- randum in the words, or to the effect, following, viz. : — " If you the within-named , neglect to obey this order \pr decree] by the time therein limited, you will be liable to be arrested under a writ of attachment issued out of the High Court of Chancery, or by the serjeant-at-arms attending the same court, and also be liable to have your estate sequestered for the purpose of compelling you to obey the same order [or decree]." — Order 12, 26th August, 1841, as amended 11th April, 1842, and 18th July, 1857. If an order is subsequently made extending the time for payment of the money or performance of the act, such order must also be served, and the copy served must be indorsed in like manner as in the case of the original order. Remedy hy Fi. Fa., Elegit, and Venditioni Exponas. Every person to whom, in any cause or matter, any sum of money, or any costs have been ordered to be paid, may, after the lapse of one month from the time when such order for payment was duly passed and entered, sue out one or more writ or writs of fieri facias, or writ or writs of elegit, in the form set forth in the General Orders, 10th May, 1839, or as near thereto as the circumstances of the case may require. — Order 1, 10th May, 1839. Upon every such order the entering clerk of the court in whose division the cause may be, is, at the request of the 136 ENFORCING DECREES, ETC. — BY FI. FA. OK ELEGIT. party leaving the same, to mark the day of the month and year on which the same is so left for entry ; and no writ of fieri facias or elegit is to he sued out upon any such order, unless the date of such entry is so marked thereon. — Order 3, 10th May, 1839. Such writs, when sealed, are to be delivered to the sheriff or other officer to whom the execution of the like writs issuing out of the superior courts of common law belongs, and are to be executed by such sheriff or other officer as nearly as may be in the same manner in which he doth or ought to execute such like writs (a) ; and such writs when returned by such sheriff or other officer are to be delivered to the solicitors by whom they were sued out, or be left at their respective offices, and are to be filed by such solicitors as of record in the office of the Clerks of Eecords and Writs; and for the execution of such writs such sheriff or other officer is not to take or be allowed any fees other than such as are, or may be from time to time, allowed by lawful authority for the execution of the like writs issuing out of the superior courts of common law.— Order 3, 10th May, 1839. If it shall appear upon the return of any such writ of fieri facias that the sheriff or other officer hath by virtue of such writ seized but not sold any of the goods of the person ordered to pay the sum of money or costs, the person to whom such sum of money or costs is payable may, immediately after such writ with such return is filed as of record, sue out a writ of venditioni exponas in the form set forth in the Orders 10th May, 1839, or as near thereto as the circumstances of the case may require. — Order 4, 10th May, 1839. On every such writ of fieri facias and elegit there must be indorsed the words " By the Court," and also thereunder the calling and place of residence of the party against whom such writ is issued, and also the name, &c., of the solicitor or party at whose instance such writ is issued (in accordance with the (o) By sec. 122 of the Common Law Pfocedirre Act, 1852 (15 & 16 Vict. cap. 76), it is enacted as follows, viz.: — "All writs of every description issning out of the superior courts of common law at Westminster to be executed in the counties palatine shall be directed and delivered to the sherifis of such counties, and executed and returned by them to the coui-ts out of which such writs are issued, in the same manner in all respects as writs are executed and returned by thte sheriffs of other counties." It is presumed, therefore, that as writs of fieri fecias and elegit issuing out of the Court of Chancery are, under Order 3, 10th May, 1839, "to be executed by the sheriff or other officer to whom they may be directed, as nearly as may be in the same manner in which he doth or onght to execute such like writs issuing out of the superior courts of common law," such writs ought not now to be directed to chan- cellors of counties palatine, but to the sheriSs; iu like manner as in other counties. ENFORCING DECREES, ETC. — AGAINST BENEFICED CLERKS. 137 directions of Orders 17 or 20, 26th October, 1842), and every such writ is to he also indorsed for the sum to he levied according to the form used upon like writs issuing out of the superior courts of common law. — Order 5, 10th May, 1839. For every such writ of fieri facias or venditioni exponas there is to he allowed to the solicitor at whose instance any such writ of fieri facias, elegit, or venditioni exponas shall be issued, the sum of 6s. 8d. for instructions for the said writ, and the further sum of 6s. 8d. for attending to procure a warrant, and for attending to instruct the officer charged with the execution of such wit. — Order 6, 10th May, 1839. Also 6s. 8d. for preparing the writ. — Orders, 30th January, 1857. Remedy hy Fi. Fa. de bonis Ecclesiasticis or Sequesfrari Facias. If it shall appear upon the return of any writ of fieri facias, or any writ of elegit, issued in pursuance of the General Orders of the 10th May, 1839, that the person against whom such writ shaU have been so issued is a beneficed clerk, and has no goods or chatties, nor any lay fee, in the bailiwick of the sheriff to whom such writ shall have been directed, the person to whom the sum of money or costs mentioned in such writ is or are payable, is, immediately after such writ with such return shall be filed as of record, at liberty to sue out one or more writ or writs of fieri facias de bonis ecclesiasticis, or one or more writ or writs of sequestrari facias, in the form stated in the Schedule to the General Orders, 18th July, 1857, or as near thereto as the circumstances of the case may allow. — Order 2, 18th July, 1857. On every such writ of fieri facias de bonis ecclesiasticis, or writ of sequestrari facias, so to be issued as aforesaid, there is to be indorsed the words " By the Court," and also thereunder the calling, if any, and place of residence, if any, of the party or person against whom such writ shall be issued, and also the name and residence or place of business of the party or solicitor at whose instance the same shall be issued; and every such writ is to be also indorsed for the sum to be taken or levied according to the form used upon like writs issuing out of the superior courts of common law. — Order 3, 18th July, 1857. Such writs, when sealed, are to be delivered to the bishop, and are to be executed by him as nearly as may be in the same manner in which he doth or ought to execute such like writs issuing out of the superior courts of common law, and such writs when returned by the bishop are to be delivered to the parties or solicitors by whom respectively they were sued out, and are thereupon to be filed as of record in the 138 ENFOHCING OEDEES " WINDING-UP " ACTS. office of the Clerks of Eecords and Writs of the Court of Chancery ; and for the execution of such writs the bishop or his officers are not to take, or be allowed, any fees other than such as are, or shall be, from time to time, allowed by lawful authority for the execution of the like writs issuing out of the superior courts of common law. — Order 4, 18th July, 1857. For every writ to be issued in pursuance of the Orders, 18th July, 1857, there is to be allowed to the solicitor, at whose .instance any such writ shall be issued, the sum of 6s. 8d. for instructions for the said writ, and the sum of 13s. id. for pre- paring the same, aijd a fee of 1/. is to be paid, by means of a stamp, for examining and stamping every such writ at the office of the Clerks of Kecords and Writs, and there is to be also allowed to such solicitor the further sum of 6s. 8d. for attending to lodge the same at the bishop's registry, and for attending to instruct the officer charged with the execution of such writ.— Order 5, 18th July, 1857. In the event of a vacancy of a bishop's see, the writ of fieri facias de bonis ecclesiasticis is to be directed to the archbishop. See form of such direction. No 2, in Schedule to Orders, 18tii July, 1857. • Enforcing Orders made under the " Winding- Up" Acts. All orders made by the Judge or Master under the provisions of "The Joint-Stock Companies Winding-Up Act, 1848," may be enforced in the same manner, and by the same or any such process, as orders of the Court of Chancery, made in any suit pending therein against any parties thereto. See 11 & 13 Vict. c. 45, s. 95. When any order shall have been made under the 11 & 13 Vict. c. 45, by the Masters, or by the Court, for the payment of any monies, or for the delivery of any effects, books, or documents, to the Master, or the official manager, and default shall have been made by any person in obeying such order, the same may be enforced against such person, upon affidavit by the official manager of such default, and without any previous demand by the official manager or any other person. — 11 & 13 Vict., c. 45, s. 67. Costs ordered to be paid under " The Joint- Stock Companies Winding-Up Act, 1848," may be recovered in the same manner, and by the same or any such process, as costs ordered to be paid by any party under any order or decree made in a suit pending in the Court of Chancery See 11 & 12 Vict., c. 45, s. 106. No judgment, decree, or order to be obtained or entered up against the official manager of any company, as representing the same, is to affect or be executed against the person or pro- ENFORCING DECEEES, ETC., COURT OF CHANCERY (iEELANd). 139 perty of the party who may for the time being be such official manager, otherwise than as a contributory. — 11 & 12 Vict., c. 45, s. 59. Enfai-cing Orders made by the Court of Chancery in Ireland. In all cases where, in any suit between party and party, any decree shall be pronounced, or any order made, for payment of, or for accounting for, money, by the Court of Chancery in Ireland, to enforce such decree or order in England, such decree or order is to be exemplified and certified to the Court of Chancery in England, and the Lord Chancellor of England is thereupon to cause such order or decree to be inroUed in the rolls of the said court, and when so inrolled to cause process of attach- ment and committal to issue against the person of the party against whom such order or decree shall have been made, in order to enforce obedience to and performance of the same, as fully and effectually as if such order or decree had been originally pronounced in the Court of Chancery in England. See Act 41 Geo. 3, c. 90, s. 6. By the fifth section of the same Act the like provision is made for enforcing in Ireland an order made by the Court of Chancery in England. For the form of exemplification necessary in this latter case, see " Exemplification." It will be observed, that the provisions of the Act 41 Geo. 3, c. 90, section 6, apply only to cases in which any decree is pronounced, or order made by the Court of Chancery in Ireland, " for payment of" or " for accounting for money." The Act says, that an order made by the Court of Chancery in Ireland, when inrolled in England as the Act directs, may be enforced in England in like _ manner as if such order or decree had been originally pronounced by the Court of Chan- cery in England. It is not, however, to be enforced in England precisely in like manner, for in proceeding to enforce any such order in England this must be borne in mind, viz : that whereas in enforcing, by attachment, an order made by the Court of Chancery in England, it is, in all cases, necessary that such order should be served upon the party directed to pay the money, or perform the act, while, in the case of an order made by the Court of Chancery of Ireland, inrolled and to be enforced in England, although such order when inrolled is to be regarded, to all intents and purposes, as an order made by the Court of Chancery in England, yet service in England of such order is not required, but upon inrolment the Court may order an attachment to issue. Indeed, in most instances it will be found that an attach- 140 ENFORCING ORDEBS — INCUMBERED ESTATES ACT. ment has already previously issued in Ireland, so that upon proof of inrolment in England, and allegation that an attach- ment was issued in Ireland, and returned non est inventus, and that the money stUl remains due, the Court of Chancery in England directs an attachment to issue, and thereupon an attachment issues without service of the order or decree in England. This is the course that has ordinarily heen pursued, and which was pursued in the case of Haig v. Soman. See order in that case (directing the attachment to issue) in Keg. Lib. A. 1838, fol. 931. It was obtained upon motion, eayparte, before the Vice-Chancellor. The order for leave to inrol was obtained upon petition to the Lord-Chancellor, answered as of course. See Eeg. Lib. A. 1838, fol. 776. The form or effect of the orders, referred to, is given in the observations appended to the form of docquet of inrolment of an order or decree made by the Court of Chancery in Ireland. Enforcing Orders made under the Incumbered Estates {Ireland) Act. Every order made by the commissioners under the Act for the Sale of Incumbered Estates in Ireland, a copy whereof shall be certified under their seal to the High Court of Chancery in England, may be inroUed in like manner, and enforced by the like process, as an order for payment of, or for' accounting for, money, made by the High Court of Chancery in Ireland, (a copy whereof is exemplified and certified to the Court of Chancery in England under the great seal of Ireland) may be enforced under the Act 41 Geo. 3, c. 90.— See 13 & 13 Vict. c. 77, s. 14. • As before observed, in enforcing an order inroUed under the provisions of the Act 41 Geo. 3, c. 90, it is usually necessary, after inrolment of the order, to apply to the Court for leave to issue an attachment against the disobedient party. But such application need not be made in cases where the order or orders inroUed include an order directing an attachment to issue. In such cases when the inrolment is complete, an attachment may thereupon and at once issue. For it wiU be seen from the forms of orders in re Eyre, introduced into the note appended to the form of docquet of inrolment of an order made by such Commissioners, that the following course of proceeding is usual in such cases. The commissioners, by what is termed a certificate of sale, declare the party to be purchaser, and in such certificate specify the amount of the purchase-money, and, upon default being made in payment of the purchase-money, the commissioners make ENFORCING OEDEES ECCLESIASTICAIi COUET. 141 orders, nisi and absolute, directing an attachment to issue, and if payment is to be enforced in England, those are the orders which are inrolled in England. In the case referred to — Be Eyre — an attachment issued immediately the commissioners' orders were inrolled, -dz., on the 16th January, 1855. The proceedings upon any orders made by the commis- sioners other than such as direct an attachment to issue, and enforceable in England, would, it is presumed, be governed by precisely the same rules as orders made by the Court of Chancery in Ireland to be enforced in England under the Act 41 Geo. 3, c. 90, s. 6. See p. 139. Enforcing Orders made hy the Ecclesiastical Court. "When any person required by an order pronoimced in the Ecclesiastical Court in England to pay any sum of money, shall neglect to obey such order within the time limited by such order, the Judge of such court m^ay pronounce such person contumacious, and, within ten days after such person shall have been so pronounced contumacious and in contempt, exemplify and certiiy a copy of such order to the Lord Chancellor. Such order, so exemplified, is forthwith to be inrolled in the rolls of the High Court of Chancery, and thereupon the Court of Chancery may order sequestration to issue against the real and personal estate, goods, chattels, and effects of the party in contempt, in the same manner and with the like effect, as if the cause had been instituted in the Court of Chancery, and as if the process of the Court of Chancery ordinarily issuing antecedent to sequestration had been duly issued and returned. — 2 & 3 Wm. 4, cap. 93, sec. 3. By sec. 3 of the same Act the like provisions are made against persons possessed of estates, &c., in Ireland. The provisions of ss. 3 and 3 of the Act do not apply to any order or decree pronounced in the ecclesiastical courts more than six years before the passing of the Act (7th August, 1832). — 2 & 3 W. 4, c. 93, s. 4. Eneorcing Payment of the Balance found due on the Taxation of a Solicitor's Bill. By Attachment. Payment of the balance found due upon the taxation of a solicitor's bill may be enforced as follows, viz :— Upon the balance being ascertained, an order should be obtained directing payment by the party from whom to the party to whom such balance is due. Such order is necessary, if a 143 EECOVEEY OF BALANCE OF SOLICITOE'S BILL. remedy by attachment is desired, because such remedy requires that the order to be enforced, shall limit a time, or time aft&r service, within which the act is to be done, and upon proof of personal service of a copy of such order, duly indorsed, as required by the Orders of 18th July, 1857, and demand of the money and non-payment, an attachment may be issued. The mode of proceeding just pointed out is available under the provisions of the Orders of the 18th July, 1857, and is more likely to be adopted where a remedy by attachment against the person is sought. But the modes of proceeding formerly in use mai/ still be pursued, viz., by order for the committal of the party, or by fieri facias or elegit. Such modes of proceeding are as follows, viz. : — By Order /or Committal, or by Fi. Fa., or Elegit. The taxation having been made, and the certificate of the amount due from the client to tJie solicitor having been filed, the following steps are necessary to enforce payment by committal : — 1. The certificate of costs must be personally served, and demand made either in person or by attorney. 2. Motion (supported by afiidavit of personal service, and demand and refusal) that the client may pay within a given time. 3. Motion (supported by affidavit of personal service of last order, demand, and non-payment) that the client may pay the amount within four days, or stand committed. 4. Order as of course (obtained on motion, supported by affidavit of personal service of last order, demand, and non- payment) that the client do stand committed. Upon this order, when drawn up, the client is committed. The same process is necessary for the committal of the solicitor, in the event of a balance being found due from him to the client. In proceeding to enforce payment by fi. fa. or elegit by the solicitor against the client the client having submitted to pay, and the usual order for taxation having been made, and the certificate of amount due from the client to the solicitor having been filed, the solicitor may obtain an order of course obtained on petition, for the payment of the amount certified to be due, after which the solicitor may sue out a fi. fa. or elegit under the 1st Order of 10th May, 1839. In proceeding to enforce payment by fi. fa. or elegit by the client against the solicitor, the client must serve a notice of motion upon the solicitor, and obtain an order that the amount ENFORCING OKDERS — PEER C0EP0R4.TI0N, ETC. 143 certified to be due to him from the solicitor may be paid to him by the solicitor. After one month from the time of such order being passed and entered, the client is entitled to sue out a writ of fi. fa., &c. See Appendix C. to the Third Report of the Chancery Commissioners, 1856. Sometimes, however, the order of reference contains a clause to the effect that the balance to be found due may be recovered by fi. fa. or elegit. In such cases a writ of fi. fa. or elegit may be issued for the recovery of the balance without further order. If the order of reference is made for the taxation of a bill of costs in a particular cause, as well as in the matter of the solicitor, payment of the amount certified to be due may be enforced from the clieflt by subpoena and attachment, in like manner as in a cause. Enforcing Decree against a Peer, or a Corporation. Where an order or decree is made against a person having privilege of peerage or of Parliament, or against a corporation, a copy of the order or decree may in the first instance, be served ; the subsequent proceeding, however, is not by attach- ment, but, as against a peer, by orders nisi and absolute for sequestration, and, as. against a corporation, by distringas, as preliminary to sequestration. As to costs, too, a subpoena may, in the &tst instance, be issued and served. In what Cases a Party is protected from Arrest. A party who is protected from arrest under the provisions of the Acts for the Relief of Insolvent Debtors, is only thus protected in respect of any pecuniary liabiHty. In other cases of contempt, such party may be proceeded against by attach- ment, and will not be entitled to his discharge until he has performed the act, for non-performance of which the process of contempt issued ; or unless it has become in event unnecessary for him to do such act. — 1 Wm. 4, c. 36, ss. 16 & 17. As to Infants, Married Women, and Persons of Unsound Mind. No attachment, or other process of contempt, can properly issue against an infant or married woman, except by special leave of the Court. As to Process upon Service Effected out of the Jurisdiction. An attachment cannot issue upon any service out of the jurisdiction, without leave of the Court. 144 TO COMPEL ATTENDANCE, ETC., OF WITNESS. In re Monmouthshire and Glamorganshire Banking Company, the Master of the Kolls, on 30th June, 1857, gave leave to the party, prosecuting an order against a contributory, to issue an attachment where the contributory had been served with. the order (also pursuant to leave) out of the jurisdiction. The permission was indorsed upon the affidavit thus : — Let an attachment issue upon this affidavit. Registrar. Enforcing Orders upon Substituted Services. A substituted service, properly effected, may be followed up by process, in like manner as the ordinary personal service upon the party ordered to do the act, such party being represented by the person substituted. In Hodgson v. Hodgson (1857), the party against whom the order was being prosecuted had obtained tihe leave of the Court to go and reside with his child out of the jurisdiction, substi- tuted service upon his solicitor in London of all process or other proceedings being provided. In that case attachments for non-payment of money and of costs were issued upon services effected upon the substituted party. And subsequently, viz., on the 8th May, 1857, the Master of the Bolls made an order for sequestration upon a return nan est inventus. To compel the attendance, 8fc., of a Witness. An attachment is not to be issued for the purpose of com- pelling the attendance before an examiner of a witness served with a subpoena ad test. If the witness refuses to attend in pursuance of subpoena ad test, duly served upon him, application should be made to the Court, by motion, for an order di- recting the party to attend within a given time, or stand com- mitted ; and, if, after personal service of such order, default is still made, then an order will be made for his committal. The application for the first order must be supported by evidence, proving personal service of the subpoena, and of the notice of the time and place of attendance, proving also, by the examiner's certificate, the non-attendance of the witness. The second order may be obtained, upon motion, as of course, upon affidavit of personal service of the first order, and upon production of a further certificate from the examiner as to default. If the witness attends, but refuses to be sworn, or to answer any lawful questions, application must be made to the Court. Upon this application a certificate from the examiner of the BALANCE ASCERTAINED TO BE DUE. 145 attendance of the party, and refusal to answer, must be pro- duced, and an order nisi for the committal of the party will be made. Such order is to be served personally, and then, upon proof of such service, and upon production of another certificate of default from the examiner, an order absolute for the committal of the party wUl be made. The like practice applies to a case where the party is required, by summons, to attend and be examined before the chief clerk; but it appears that if, in any such case, the witness refuses to answer, the Judge may, if he thinks fit, examine the witness, and, upon continued refusal to answer, immediately commit him to prison. To recover a Balance ascertained to he due. Where an order directs an inquiry and ascertainment there- under as to what may be due from one party to another, and also directs that what shall be found due shall be paid by the party from whom to the party to whom it is due, a writ of fieri facias or elegit may issue for the recovery of the amount found due without fiirther order. If the whole amount is not recovered imder the fi. fa. or elegit, an attachment cannot issue for the balance. Application should be made to the Court for an order directing payment of the amount remaining due, and limiting a time, or a time after service, within which it is to be paid. The application should be supported by evidence show- ing the proceedings under the first order up to the fi. fa. or elegit, the amount. levied, and what remains due. In HipJcins v. Sipkins — 1856, H, No. 18 — a fi. fa. had issued for non-payment of money found due. Part only of the amount was recovered by levy under the fi. fa. An attachment was desired as to the balance. The attachment could not issue without order, there being, in the order directing payment, no limitation of time, or of time after service, within which pay- ment was to be made. Application was therefore made to the Court for such an order directing payment of the amount remaining due, as, upon due service, could be enforced by attachment. His Honor Vice-Chancellor Stuart in that case did not at once make such order, but, by an order dated 22nd May, 1857, referred the matter again to chambers, to ascer- tain what was due from the one party to the other, and, by the order, directed payment of what should be ascertained to be still due within a limited time after service. When the amount was ascertained, the order and certificate were served, and an attachment issued without further order. 146 ENFORCING CONDITIONAL ORDEES. Enforcing Orders which have been partially obeyed. — An at- tachment may be issued in cases where a decree or order has been only partially obeyed. In some cases the writ is made out as if no part of the act directed had been performed. For instance, where a party has not left with the Clerks of Records and Writs all the docu- ments which he was required to leave. In other cases, where part of a sum of money, or of costs, remains unpaid, the indorsement on the attachment is framed so as to express the particular amount remaining due. If certain apedfied documents or accounts are directed to be deposited, and part only are thus deposited, upon due proof as to service, &c., an attachment may be issued, without further order. But if an order directs the filing of a "full and sufficient " affidavit, or the depositing of " sufficient " accounts, an attach- ment cannot issue upon a mere representation of insufficiency. The question of sufficiency must be determined by the Court, and if found insufficient a fwrther order will be made. In cases where an attachment may issue after part perform- ance without further order, if service of the order to be enforced was effected, and demand made, before the part per- formance, then, upon sealing .an attachment, proof of such service and demand must be produced, and, in addition thereto, an affidavit showing part performance only. If the order was partially performed before service and demand, then, before an attachment can issue, the order must be served, and demand made. If the order limits a time after service within which the act is to be done, the order can be then served. But if the order only limits a time (a day certain), and if such time has elapsed, either the order must be altered, extending the time, or another order limiting a time must be obtained, before ser- vice can be effected and an attachment regularly issue. Where the Order imposes conditions on the party enforcing it. — Where an order directs payment of money, or performance of an act, subject to the performance, by the party enforcing the order, of certain conditions, compliance with such conditions, as well as proof of due service, &c., of the order, must be shown by the Jiarty seeking to enforce the order. The like observation applies to a case where an order directs execution of a deed, or delivery of deeds, &c., upon a condition of previous payment of a sum of money. And it will be found useful if, in such a case, the order directs the act to be done " upon payment or tender " of the money. JFhere the Order provides an alternative remedy. — Where ENFORCING ORDERS — PERSONS NOT PARTIES. 147 an order, made in favour of a party, gives the party an alternative remedy — for instance, if the order directs payment of a specified sum of money on or before a certain day, or, in default thereof, that the party in whose favour the order is made may proceed to a sale, &c. — it is desirable that the party should nevertheless take such steps by way of service and demand, &c., as wiU enable him to enforce the order irrespective of the alternative remedy provided. Where part performance accepted, — prisoner discharged, — -Jresh process desired. — If, where an order directs payment of a sum of money to a party, the party enforcing the order accepts part performance after issuing an attachment, and thereupon dis- charges the party in contempt, another order must be obtained, directing payment of the sum remaining due before payment thereof can be enforced by a second attachment. So, likewise, where the party prosecuting the contempt releases the party taken upon process of contempt, the process of contempt cannot be resumed without special order. Any Person in whose fcmmr an Order is made may enforce it. Every person, not being a party in any cause, who has obtained an order, or in whose favour an order shall have been made, may enforce obedience to such order, by the same process as if he were a party to the cause. And every person not being a party in any cause, against whom obedience to any order of the Court may be enforced, is liable to the same process for enforcing obedience to such order as if he were a party to the cause. — Order 15, 36th August, 1841. Execution, of Process of Contempt. An attachment cannot be executed on a Sunday. But a party having been taken and effected his escape, may be retaken on a Sunday. Neither can an attachment be executed after the return day named in the writ. See Darnell's Ch. Pr., 3rd ed., 1857, vol. i., pp. 322 and 323. A party is not bound to execute the process he issues ; and his abandonment of such process does not prevent his issuing fresh process, if otherwise in a position to issue such process. L 2 148 FORMS OF DIRECTIONS OF WRITS TO SHERIFFS, &C. FORMS OF DIRECTIONS TO SHERIFFS, &c. To BE INSERTED IN WrITS USED IN PROCESS OF CONTEMPT. No. 106. Anglesey. To the Sheriff of the County of Anglesey. Bedfordshire. To the Sheriff of Bedfordshire. Berkshire. To the Sheriff of Berkshire. Berwick-upon-Tweed (Town of). To the Sheriff of the Town of Berwick-upon-Tweed. Breconshire. To the Sheriff of Breconshire. Bristol (City of). To the Sheriff of the City and County of Bristol. Buckinghamshire. To the Sheriff of Buckinghamshire. Cambridgeshire. To the Sheriff of Cambridgeshire. Canterbury (City of). To the Sheriff of the County of the City of Canterbury, Cardiganshire. To the Sheriff of Cardiganshire. Carmarthen (Borough of). To the Sheriff of the County of the Borough of Carmarthen. Carmarthenshire. To the Sheriff of Carmarthenshire. Carnarvonshire. To the Sheriff of Carnarvonshire. Cheshire. To the Sheriff of Cheshire. Chester (City of). To the Sheriff of the County of the City of Chester. Cinque Ports. To the Lord Warden of our Cinque Ports, or his Deputy there. Cornwall. To the Sheriff of Cornwall. Coventry (City of). To the Sheriff of the County of the City of Coventry. Cumberland. To the Sheriff of Cumberland. Denbighshire. To the Sheriff of Denbighshire. Derbyshire. To the Sheriff of Derbyshire. Devonshire. To the Sheriff of Devonshire. Dorsetshire. To the Sheriff of Dorsetshire. FORMS OF DIRECTIONS OF WHITS TO SHERIFFS, &0. 149 Dover (Castle). To the Constable of our Castle of Dover, or his Deputy there. Durham (Bishop of). To the Right Reverend Father in God , by Divine permission Lord Bishop of our County Palatine of Durham. Durham. To the Chancellor of our County Palatine of Durham, or his Deputy there, &c. Durham. To the Sheriff of Durham. Essex. To the Sheriff of Essex. Exeter (City of). To the Sheriff of the County of the City of Exeter. Flintshire. To the Sheriff of Flintshire. Glamorganshire. To the Sheriff of Glamorganshire. Gloucester (City of). To the Sheriff of the County of the City of Gloucester. Gloucestershire. To the Sheriff of Gloucestershire. Hampshxre. To the Sheriff of Hampshire. Haverfordwest (Town of). To the Sheriff of the County of the Town of Haverfordwest. Herefordshire. To the Sheriff of Herefordshire. Hertfordshire. To the Sheriff of Hertfordshire. Huntingdonshire. To the Sheriff of Huntingdonshire. Isle of Wight. To the Sheriff of Hampshire. Kent. To the Sheriff of Kent. KiNGSTON-upoN-HuLL (TowN of). To the Sheriff of the County of the Town of Kingston-upon-Hull. Lancaster. To the Chancellor of our County Palatine of Lancaster, or his Deputy there, &c. Lancaster (Duchy of). To our Chancellor of our Duchy and County Palatine of Lancaster. Lancashire. To the Sheriff of Lancashire. Leicestershire. To the Sheriff of Leicestershire. Lichfield (City of). To the Sheriff of the County. of the City of Lichfield. Lincoln (City of). To the Sheriff of the County of the City of Lincoln. Lincolnshire, To the Sheriff of Lincolnshire. London. To the Sheriffs of London. 150 FOBMS OF DIEECTIONS OF WRITS TO SHERIFFS, &'C. Merionethshire. To the Sheriff of Merionethshire. Middlesex. To the Sheriff of Middlesex. Monmouthshire. To the Sheriff of Monmouthshire. MoNTGOMEBYsmBE. To the Sheriff of Montgomeryshire. Newcastle-upon-Tyne (Town of). To the Sheriff of the County of the Town of Newcastle-upon-Tyne. Newgate. To the Keeper of our Gaol of Newgate, or his Deputy there. Norfolk. To the Sheriff of Norfolk. Northampton. To the Mayor, Bailiffs, and Burgesses of Northampton. Northamptonshire. To the Sheriff of Northampton- shire. Northumberland. To the Sheriff of Northumberland. Norwich (Bishop of). To the Right Reverend Father in God , by Divine permission Lord Bishop of Nor- wich. Norwich (City of). To the Sheriff of the County of the City of Norwich* Nottingham (Town of). To the Sheriff of the County of the Town of Nottingham. Nottinghamshire. To the Sheriff of Nottinghamshire. Oxford (City of). To the Sheriff of the City of Oxford. Oxfoedshibb. To the Sheriff of Oxfordshire. Pembeoke SHIRE. To the Sheriff of Pembrokeshire. Poole (Town of). To the Sheriff of the County of the Town of Poole. Portsmouth. To the Mayor, Aldermen, and Burgesses of our Borough of Portsmouth in the County of South- ampton. Queen's Prison. To the Keeper of our Prison called the Queen's Prison. Radnorshire. To the Sheriff of Radnorshire. Rutlandshire. To the Sheriff of Rutlandshire. Shropshire. To the Sheriff of Shropshire. Somersetshire. To the Sheriff of Somersetshire. SouTHAiaPTON (Town of). To the Sheriff of the County of the Town of Southampton. FORMS OF DEBECXIONS OF WKITS TO SHERIFFS, &C. 151 Staffordshire. To the Sheriff of Staffordshire. Suffolk. To the Sheriff of Suffolk. Surrey. To the Sheriff of Surrey. Sussex. To the Sheriff of Sussex. Warwickshiee. To the Sheriff of Warwickshire. Westmoreland. To the Sheriff of Westmoreland. Wiltshire. To the Sheriff of Wiltshire. Worcester (City of). To the Sheriff of the County of the City of Worcester. Worcestershire. To the Sheriff of Worcestershire. York (City of). To the Sheriff of the County of the City of York. Yorkshire. To the "Sheriflf of Yorkshire. If the party against whom an attachment is to be issued is already in prison, the writ is to be directed to the Keeper of the prison in which such party is confined. If a writ is to be issued into a county palatine, the following form of direction is to be used, viz. : — To our Chancellor of our CoTonty Palatine of , or his Deputy there. Greeting. We command you that by our writ under your seal of our aforesaid county, duly issued, you command the Sheriff of our aforesaid county, &c. Writs of fieri facias and elegit should not, it is presumed, be directed to chancellors of counties palatine. — See Order 3, 10th May, 1839, and 15 & 16 Vict. c. 76, s. 122 ; see also note {a) on p. 136. If there be two sheriffs in the jurisdiction or place to which a writ is to be directed, and one of such sheriffs is an interested party, the writ should be directed to the other sheriff. If both sheriffs are interested, then the writ should be directed to the coroner, thus : — To the Coroner of our City [or County] of . 152 RETURNS TO BE INSERTED IN WRITS OF ATTACHMENT. EETUENS TO BE INSERTED IN WRITS OF ATTACHMENT. The returns inserted in writs of attachment are governed almost exclusively by the residence of the party against whom the writ is issued. If the party is in London, or within twenty miles thereof, the attachment may be made returnable immediately — that is, " immediately after the receipt of this writ," and the writ may be made so returnable either in term or in vacation. However, if returnable in term, one of the general return days, — such, for instance, as "on the morrow of AH Souls next ensuing" — may be inserted. If the party resides, or is likely to be found, in any place distant twenty, or more than twenty, miles from London, then the attachment may be made returnable in vacation on a day certain, provided that there be at least fifteen clear days between the teste (the day on which the writ is sealed) and the ■return of the writ. If, where the party is thus distant twenty, or more than twenty, miles from London, and the attachment is made returnable in term, then one of the general return days, — such, for instance, as " On the morrow of All Souls next ensuing " — must be inserted. The practice as to these returns is governed, chiefly, by Rule 3 of Section 15 of the Act 1 Wm. 4, c, 36. A writ returnable " immediately " is generally considered as being in force until the last return of the term next following that in or as of which such writ is issued, and it was supposed that an attachment could not have a longer return than such last return ; but an attachment for costs, issued into Lincoln- shire, sealed in Trinity Term, and made returnable in Michael- mas Vacation, thus passing over a term, was held not irregular (see Wroe v. Clayton, 13 Jurist, 321) ; and, in the case cited, the attachment had been sealed upon an affidavit of service of subpoena sworn fifteen months previously. Where an attachment for want of answer is to be issued against a defendant, before his time for answering has elapsed, pursuant to Order 72, 8th May, 1845, the writ is to be made returnable at such time as the Court directs. ' GENERAL RETURN " DAYS. 153 " GENEEAL BETURN " DAYS. The following are the " General Return " days, to he inserted in writs of attachment issued into a county or a place distant more than twenty miles from London, and to be made return- able in term time. See Harrison's Ch. Pr., 6th ed. vol. i. pp. 349 to 352. It is necessary, however, to observe, that the applicability of such returns, as here given, depends upon the occurrence during tei-m of the particular anniversary specified. Jlilary Term. 1. In eight days after Saint Hilary next ensuing (a). In eight days next ensuing after Saint Hilary (6). 2. In fifteen days after Saint Hilary next ensuing (a). In fifteen days next ensuing after Saint Hilary (6). 3. On the morrow of the Purification of the Blessed Virgin Mary next ensuing {a). 4. In eight days after the Purification of the Blessed Virgin Mary next enstdng (a). In eight days next ensuing after the Purification of the Blessed Virgin Mary (6). Easier Term, 1. In fifteen days after Easter next ensuing (a). In fifteen days next ensuing after Easter (b). 2. From the day of Easter next ensuing in three weeks («). From the day of Easter in three weeks next ensuing (6). 3. From the day of Easter next ensuing in one month (a). From the day of Easter in one month next ensuing {b). (a) TMs is the language of the return, to be used when the writ is issued before the date of the anniTersary specified. (i) This is the language of the return, to be used when the writ is tested on or after (bnt^ of course, still so as that the return shall expire durimg the term) the day of the particular anniversary specified. The necessity is obvious, lie language of the former part of the return would, if used on or after such particular anniversary, refer to, and extend the return to, and perhaps beyond, the next recurrence of such anniversary. 154 "general return" days. — costs of contempt. 4. From the day of Easter next ensuing in five weeks (a). From the day of Easter in five weeks next ensuing (6). 5. On the morrow of the Ascension of our Lord next en- suing (a). Trinity Term. 1. On the morrow of the Holy Trinity next ensuing {a). 2. In eight days after the Holy Trinity next ensuing (a). In eight days next ensuing after the Holy Trinity (6). 3. In fifteen days after the Holy Trinity next ensuing (a). In fifteen days next ensuing after the Holy Trinity (6). 4. From the day of the Holy Trinity next ensuing in three weeks («). From the day of the Holy Trinity in three weeks next ensuing (6). Michaelmas Term. 1. On the morrow of All Souls next ensuing (a). 2. On the morrow of Saint Martin next ensuing (a). 3. In eight days after Saint Martin next ensuing (a). In eight days next ensuing after Saint Martin (6). COSTS OF CONTEMPT. If an attachment is issued, but not executed, the amount payable by the party in contempt is lis. 2d.- if executed, 13s. Mi If the attachment was issued against more than one party, a further sum of 2s. %d. is payable for each additional party. Where the process of contempt has gone beyond the attach- ment,— that is, to messenger, serjeant-at-arms, or sequestra-- tion,— then the party in contempt is liable to pay taxed costs. (a) See note (o) on p. 153. (J) See note (6) on p. 153. COSTS OF FI. FA., &C. Igg COSTS OF A FIEEI FACIAS, ELEGIT, OR VENDITIONI EXPONAS. The costs allowed to be charged by a solicitor for each of these writs is 21. Such amount is made up thus : — For sealing the writ ..... For instructing the officer .... The solicitor's fee — instructions for the writ, and (under Order, 30th January, 1857) for preparing same ..... £ s. d. 1 6 8 13 4 £2 is to be £ 8. d. 2 6 5 6 7 To this amount, when indorsed upon the writ, is to added the amount payable for the warrant. The sum payable for the warrant, in London or Middlesex, is Other Counties, not exceeding 110 miles 200 „ „ „ exceeding 200 „ If the writ is directed to a county palatine, the sum payable for the mandate is also to be added. But, query, can such writs now be directed as to counties palatine ? — See note (a) p. 136. For a writ of fieri facias de bonis ecclesiasticis, or writ of sequestrari facias, issued pursuant to the Orders 18th July, 1857, the amount chargeable by the solicitor is 21. 6s. 8d., an additional fee of 6s. 8d. being, in such cases, allowed for attending to lodge the writ at the Bishop's Registry, and to instruct the officer. — See Order 5, 18th July, 1857. 158 FOKM OF WRIT OP ASSISTANCE. No. 107. WRIT OF ASSISTANCE. ViCTOEIA, &C. To the Sheriff of , as well present as for the future, Greeting. Whereas according to the tenor and true meaning of an order made in a certain cause depending in our Court of Chancery, between , complainant, and , defendant, the said was ordered and enjoined to deliver up possession to , in the said order named, of all that capital messuage or mansion-house, lands and premises, in the pleadings in the said cause mentioned, yet nevertheless, he the said , and other ill-disposed per- sons, his accomplices, have refused to pay obedience thereto, and detain and keep the possession of the said mansion- house, lauds, and premises, in manifest contempt of us and our said Court : and whereas by an order made in the said cause, bearing date the day of , it was ordered that a writ of assistance should issue directed to the sheriff of the county of , to put into possession of the premises in question, pursuant to the said hereinbefore recited order. Know ye therefore, that we, being willing and desirous that justice should be done to the said , in this behalf, do give unto you full power and authority to place and put the said , or his assigns, without delay, into the full, peaceable, and quiet possession of all and singular the said mansion-house, lands, and premises, with their appurtenances, and from time to time, as often as there shall or may be occasion, to maintain and keep him and his assigns in such peaceable and quiet possession, according to the intent and true meaning of the said orders of our said Court, and therefore we do HOW WBIT OF ASSISTANCE TO BE OBTAINED. 157 hereby command and enjoin you, that immediately after your receipt of this writ, you do go and repair to and enter into and upon the said messuage, lands, and premises, and that you do remove, eject, and expel the said , his tenants, servants, and accomplices, each and every of them, out of and from the said mansion-house, and every part and parcel thereof, and that you do place and put the said and his assigns into the fuU, peaceable, and quiet possession thereof, and defend and keep him and his said assies in such peaceable and quiet posses- sion, when and as often as any interruption may or shall from time to time be given or offered to them or any of them, according to the true intent and meaning of the said orders, and herein you are not in anywise to fail. Witness ourself at Westminster, the day of , in the year of our reign. EOMILLT, M. E. Indorsement. Writ of Assistance. ». [Name and address of the solicitor or party issuing the Writ.] PrcBcipe. In Csancehy. ■ "^ Seal a Writ of Assistance directed to the sheriff 1). > of , to deliver possession to . ) Order dated day of . Tested day of , {Name and Address as in the Indorsement on the Writ.] Sow a Writ of Assistance is to he Obtained, Upon due service of a decree or order for delivery of posses- sion, and upon proof made of demand and refusal to obey such order, the party prosecuting the same is entitled to an order for a writ of assistance. — Order 13, 26th August, 1841. The decree or order should state the time, or the time after service, within which the act is to be done.-^Order 13, 26th August, 1841, as amended 11th April, 1848, and 18th July, 1857. 158 POEM OF WEIT OP ATTACHMENT. It is not necessary that in this case the copy of the decree or order served should have indorsed thereon the notice or memorandum set forth in the 13th Order, 26th August, 1841, as amended llth April, 1843, and 18th July, 1857. The copy of the decree or order must be served personally. The party to whom possession is ordered to be delivered, need not himself serve the order, but he must personally demand possession, or authorise some other person by power of attorney to do so on his behalf. The order for the writ of assistance may be obtained upon motion, as of course ; the application for such order being sup- ported by proof of personal service of the decree or order, demand, and refusal. The form of some parts of the writ is governed by the language of the decree or order, especially in reference to the description of the estate or premises, possession of which is to be delivered up. The writ must, therefore, be varied accordingly. The writ should be engrossed on parchmentj and stamped with a 1^. Chancery fee fund stamp. The order for the writ must be produced to the officer, at the time the writ is presented for sealing. ATTACHMENT. No. 108. Victoria, &c., to the Sheriff of -, Greeting. We com- mand you to attach , so as to have him before us in our Court of Chancery [here insert the return], wheresoever the said Court shall then be, there to answer to us, as well touching a contempt which he, as it is alleged, hath com- mitted against us, as also such other matters as shall be then and there laid to his charge : and further to perform and abide such order as our said Court shall make in this behalf, and hereof fail not, and bring this writ with you. Witness our self at Westminster, the day of , in the year of our reign. EOMTLLY, M. R. Ihe attachment should be directed to the sheriff or other officer of the county or jurisdiction wherein the party against whom the writ is issued is likely to be found. Beames' Ord 199 INDORSEMENTS ON ATTACHMENTS. — FOE NOT APPEAEING. 159 If such party is already in prison, the attachment is to be directed to the keeper of the prison in which such party is confined, and is there lodged as a detainer against him. If the writ is to be issued into a county palatine, the follow- ing form of direction is to be used, viz. : — To our Chancellor of our County Palatine of , or his Deputy there. Greeting. We command you that by our writ under your seal of our aforesaid county, duly issued, you command the sheriff of our aforesaid county to attach, &c. It may be remarked, in reference to the writ of attachment, that the form of the body of such writ is in all cases, and for all purposes, alike. The object for which, or rather, the nature of the particular default, in respect of which the attachment is sued out, is expressed in an indorsement to be made on such writ. The form of indorsement, therefore, involves the more important points to be regarded in the preparation of a writ of attachment. Several of such forms, with practical directions, follow these observations. INDOKSEMENTS ON WRITS OF ATTACHMENT. FOE NOT APPEAEING. No. 109, In an Ordinary Case. By the Court. For not appearing at the suit of , complainant. [Name, 8fc., of the Solicitor or Farty issuing the Writ.] No. 110. For want of the Appearance of Susband and Wife. By the Court. For want of the appearance of the within named , and his wife, defendants, at the suit of , complainant. [Name, Sfc, of the Solicitor or Party issuing the Writ.] 160 INDORSEMENTS ON ATTACHMENTS.— FOR NOT APPEARING. No. HI. For want of the Appearance of a Married Woman {issued against the Hiisband). By the Court. For want of the appearance of , the wife of the within named , defendant, at the suit of , com- plainant. iName, 8fc., of the Solicitor or Forty issuing the Writ.] No. 113. For want of the Appearance of a Married Woman {issued against the Married Woman, pursuamt to Order). By Order of Court. For want of the appearance of the within named , the wife of , defendant, at the suit of , com- plainant. Issued ptirsuant to Order, dated day of . [iVome, Sfc, of the Solicitor or Farty issuing the Writ.'] Practical Directions. Ordinary Official Bequiremenis. — Direct the writ to the sheriff, or other proper officer. Insert a proper return. Teste the writ as of the day on which it is sealed. Indorse the writ in accordance with such one of the fore- going forms as applies to the case. Stamp the writ with a 5s. Chancery fee fund stamp. Make out prflecipe, two copies, in the following form, viz. : — ATTACHMENT FOR NOT APPEAEING TO BILL. 161 No. 113. In Chancery. '\ Seal an attachment directed to the sheriff of «'• r . > against , for (a) not appearing at the J suit of , plaintiff. E>eturnable . Tested day of ■ [Name, 8fc., of the Solicitor or Party issuing the Writ.] Enter praecipe : — ^that is, leave one copy of it with the regis- trar, and get the other copy marked entered by the ckrk at the entering seat in the registrars' ofl&ce, and then leave it with the officer who seals the writ. Special Requirement. — Produce an office copy of the affidavit of service of a copy of the bUl. An attachment for want of appearance is very seldom issued : firstly, because the attachment cannot be followed up by any subsequent process, for no order is to be made by the Court for a messenger, or for the serjeant-^t-arms, to take the body of a defendant, for the purpose of compelling him to appear to a bUl (see Order 7, 26th, August, 1841) ; and, secondly, be- cause a more speedy, inexpensive, and efficient remedy is pro- vided, by which the plaintiff is enabled to enter an appearance for a defendant under the General Orders, 8th May, 1845. An attachment cannot be issued for want of appearance to a claim, special case, or summons, nor even to a bill, in cases where the copy of the bill has not been duly served within the jurisdiction of the court. (o) If for warU of appearance of hiisband and wife, say: — " For want of the appearance of the said and his wife, at the snit of , plaintiff." If for vianf of appearance of a married woman, say : — " For want of the appear- ance of , the wife of the said , at the suit of , plaintiff." If for VjoM of appearcmce of a married woman,, in cases where the attachment issues agaimst the married woman piersuant to ordeir, say : — ' ' For want of the appear- ance of the said , the wife of , at the suit of , plaintiff. Issued under order, dated day of ." 162 INDORSEMENTS ON ATTACHMENTS FOR NOT ANSWERING. An undertaking to appear given by a solicitor, is, in most instances, given to avoid the necessity of ordinary service of the copy of the bill ; no affidavit of service, therefore, can, in such cases, be made, consequently no attachment for want of appearance can issue. Nor, without leave of the Court, can an attachment for want of appearance be issued against a defendant who has been served with the copy of the bill out of the jurisdiction, even though, after service, such defendant comes within the juris- diction. The proper course is to apply to the Court for leave to enter an appearance by default. Indorsements on Attachments for not Answering. No. 114. In Ordinary Cases. By the Court. For not answering at the suit of , complainant. [Name, 8fc., of the Solicitor or Party issuing the Writ.] No. 115. For want of the Answer of an Infant (in cases where the attachment is issued against such Infant, pursuant to order). By Order of Court. For not answering at the suit of , complainant. Issued pursuant to Order dated day of . {Name, 8fc., of the Solicitor or Party issuing the Writ.] No. lie. For want of tJie Answer of Susband and Wife. By the Court. For want of the answer of the within-named and his wife, at the suit of , complainant. [Name, 8fc., of the Solicitor or Party issuing the Writ.] INDORSEMENTS ON ATTACHMENTS FOR NOT ANSWERING. 163 No. 117. For want of the Answer of a Married Woman {issued against the Htisland). By the Court. For want of the answer of , the wife of the within- named , at the suit of , complainant. [Namet 8fc., of the Solicitor or Party issuing the Writ.] No. 118. For want of the Answer of a Married Woman {issued against the Married Woman, pursuant to order). By Order of Court. For want of the answer of the within-named , the wife of , defendant, at the suit of , complainant. Issued pursuant to Order dated day of . {Name, 8fc., of the Solicitor or Party issuing the Writ.] No. 119. For not Answering Interrogatories filed by a Defendant for the Examination of a Plaintiff. By the Court. For not answering the interrogatories filed by the defendant , in a cause wherein the within-named is plaintiff, and the said is defendant. [Name, 8fc., of the Solicitor or Party issuing the Writ] Practical Directions. Ordinary Official Requirements. — Direct the writ to the sheriff or other proper officer. Insert a proper return. Teste the writ as of the day on which it is sealed. Indorse the writ in accordance with such one of the foregoing forms as applies to the case. Stamp the writ with a 6«. Chancery fee fund staSnp, M 2 1G4 PRACTICE AS TO ATTACHMENTS FOB NOT ANSWERING. Make out praecipe — two copies — in the following form, viz. : — No. 120. In Chancery. Seal an attachment directed to the sheriff of against , for (a) not answering at the 1 suit of , plaintiff (5) Returnable . Tested day of - \Name, 8fc., of the Solicitor or Party issuing the Writ.] Enter praecipe : — that is, leave one copy with the clerk at the entering seat in the registrars' office ; the other, marked entered by him, leave with the officer who seals the writ. Special Requirement. — Produce an office copy of the affidavit of service or delivery of the interrogatories. If an order for further time to answer has been obtained, and such further time has elapsed, the affidavit should in its state- ments extend to this, or (it may be mentioned) the production of such order, or of an office copy thereof, will be sufficient. When an Attachment for not Answering may Issue. Ordinarily an attachment for want of answer can only issue in cases where the time for answering has elapsed. But if there is just reason to believe that any defendant means to abscond before answering the bill, the Court may, on the exparte application of the plaintiff, at any time after an appearance has been entered for such defendant by the plaintiff, order an attachment for want of answer to be issued (a) If for want of answer of huslamd and wife, say :— " For want of the answer of the said and his wife, at the suit of , plaintiff." If for want of answer of a married woman, say: -"For want of the answer of . , the wife of the said , at the suit of , plaintiff." If for want of answer of a married womam, m cases where the attachment is issued against the married woman pwrsuant to order, say :— " For want of the answer of the said . the wife of , at the suit of , plaintiff. Issued pursuant to order, dated day of ." (6) // for want of answer of infant or married woman, and issued against such persons, add : — Issued pursuant to order, dated day of ." PRACTICE AS TO ATTACHMENTS FOE NOT ANSWERING. 165 against him ; and such attachment is to be made returnable at such time as the Court directs. — Order 72, 8th Maj', 1845. Proof Hequired on Sealing the Attachment. Upon sealing an attachment for want of answer, if no appear- ance has been entered, evidence, by affidavit, of due service of the bill, in addition to an affidavit of service of the interroga- tories, as ordinarily required, must be produced. When a new Attachment is not required. — When a defendant, in contempt for want of answer, obtains, upon filing his answer, the common order to be discharged as to his contempt, on payment or tender of the, costs thereof, or the plaintiff accepts the costs without order, he is not by such acceptance to be compelled, in the event of the answer being insufficient, to recommence the process of contempt against the defendant, but is at liberty to take up the process at the point to which he had before proceeded. — Order 24, 3rd April, 1828, as amended, 23rd November, 1831. Where an Attachment need not he issued at all. — Where a plaintiff intends to apply for an order to take the bill ^ro confesso against a defendant, who, under the provisions of Order 77, 8th May, 1845, is to be deemed to have absconded, and such defendant is known to he out of the jurisdiction of the Court, it is not necessary to issue an attachment. — Hums v. Oilchrist, M. E. 26th March, 1850. The plaintiff can satisfy the Court, upon the application for the order, that he could not execute a writ of attachment against such defendant, inasmuch as he could not issus one, the defendant not heing within the jurisdic- tion of the court. See also Butler v. Mathews, 19 Beav. 549. lAability of Husband for Wife's Answer. — Where husband and wife are defendants to a bUl, the husband is liable to an attachment, not only for want of his own answer, but also for want of the answer of his wife. But if the Court has, by order, obtained by the husband, exempted the husband from such liability, the wife may be proceeded against separately; However, an order for leave to answer separately as to the wife, must be obtained, either by the wife, or by the plaintiff, before an attachment can properly be ordered to issue against her. Full time for answering is allowed to the married woman from the date of such order, and at the expiration of her time for answering, the plaintiff may apply for an order for an attachment against her. See the practice on these points fully set forth in Smith's Ch. Pr. 6th ed., 1857, pp. 274 to 276, and 324, 325. See also Daniell's Ch. Pr. 3rd ed., 1857, vol. i. pp. 137 to 140, and 348 to 350. 166 ATTACHMENTS — FOR BREACH OF ORDER OR DECREE. Attachments for Non-Peeformance of Decrees, &c. Practical Observations. What Orders may he enforced hy Attachment. — ^An attachment for breach of an order or decree may now be issued in any suit or matter, the distinction between an order or decree intituled in a cause between party and party, and an order intituled merely in a " matter," being removed by the General Order of the 18th July, 1857. But the order to be enforced must state " the time, or the time after service " of the order, within which the act is to be done. — Order 13, 36th August, 1841, as amended 11th April, 1843, and 18th July, 1857. If a time is not thus limited, and a remedy by attachment is desired, another order limiting a time must be obtained. If such further order be not obtained, and the decree is for nonpayment of money or costs, and states by and to whom such money or costs is or are to be paid, the remedy by fi. fa. or elegit can alone be resorted to. It is in all cases desirable to limit a time after service of the order within which the act is to be done, especially if any difficulty in drawing up the order, or in serving the party, is apprehended ; because, if an order is not served before the time limited for doing the act, such order cannot be enforced by pro- cess, and another application to the Court becomes necessary. Service of the Order necessary — and how effected. — ^A true copy of the order or decree must be served personally upon the party or person required to do the act, and upon such copy, when so served, there must be indorsed a notice or memo- randum in the words, or to the effect, following, viz : — " If you, the within-named A. B., neglect to obey this order {or, decree) by the time therein limited, you will be liable to be arrested {a) under a lorit of attachment issued out of the Sigh Court of Chancery, or by the serjeamt-at-qrms attending the same Court, and also be liable to have your estate sequestered for the pur- pose of compelling you to obey the same order (or, decree)." — Order 13, 36th August, 1841, as amended 11th April, 1843, • and 18th July, 1857. (o) If the orda- is to he served wpon or for a corporation, say: — " Ton will be liatle to a distraint upon your lands and tenements, goods and chattels, "and then leave out so much of the form as is printed in italics. If the order is to be served upon a person having privilege of peerage or of parlia- ment, say: — "You will be liable to have your estate sequestered," &c., as in the form, leaving out such parts as refer to an arrest. SERVICE OF THE ORDER OR DECREE — DEMAND, ETC. 167 If an order extending the time within which the act is to be done has been obtained, a true copy of such order must like- wise be personally served, and a like form of notice or memo- randunf should be indorsed thereon. If substituted service has been ordered, the service must be effected in strict accordance with the terms of the order directing such service, and a true copy of such order must, at the same time, be served upon the person substituted. In aU cases the original order, as duly passed and entered, or an office copy thereof, as duly sealed with the seal of the Eeport office, and signed by one of the Clerks of Eecords and Writs, must be produced, to the party served, at the time of the service. Demand necessary — and hy whom to be made. — If the order directs payment of a sum of money, or delivery of deeds, &c., to a party, such party, although he need not himself serve the order, must nevertheless make the demand, or autho- rise some other person, by power of attorney, to do so on his behalf, and the demand should be made within the time limited for doing the act. There is, however, an exception to the rule, as to the necessity of a demand, in favour of money, &c., ordered to be paid, &c., to an official manager, under the Joint-Stock Companies Winding-up Acts. See 11 & 13 Vict, c. 45, s. 67. Affidavit as to service, and default, required. — As to the service, the affidavit may be sworn, but should not be filed, before the expiration of the time limited for doing the act directed by the order or decree. As to the default, the affidavit cannot, of course, he sworn to before the time for doing the act has elapsed, and it is desirable that it should be sworn to as near the date of issuing the process as possible. Preparation of the Writ. — The form of indorsement is inva- riably a recital of so much of the mandatory part of the order as directs the payment of the money or performance of the act, and the language of the order should in all cases be strictly followed. As the form No. 121, with the ordinary official requirements appended thereto, will serve as a guide in almost all cases, it has been considered unnecessary (except in the case of form No. 133) to give a form of indorsement and directions speci- fying the wdinary official requirements, applicable to each of the cases enumerated, from No. 121 up to and inclusive of form No. 130. But where, in any of such cases, it has been 168 INDOKSEMENTS ON WBITS OF ATTACHMENT. necessary to set forth any special requirement applicable -thereto, a note or memorandum is appended, specifying such special requirement. Indorsements on Attachments — Foe Bbeach of Ordees. No. 121. For Non-Payment of Money to a Party. By the Court. For breach of an order dated the day of , made in a cause wherein — is complainant, and the within-named is defendant (a), in not \here recite so much of the mandatory part of the order as directs the pay- ment of the money'], as by the said order the within-named was commanded. {Name, 8fc., of the Solicitor or Party issuing the Writ.] Directions. Ordinary Official Mequirements. — ^Direct the writ to the sheriff or other proper officer. Insert a proper return. Teste the writ as of the day on which it is sealed. Indorse the writ in accordance with the foregoing form. Stamp the writ with a ds. Chancery fee fund stamp. Make out praecipe — two copies — ^in the following form, viz : — -\ Sea ) the - No. 122. In Chancery. Seal an attachment directed to the sheriff of against , for breach of an order, dated day of , made in a cause wherein is plaintiff, and the'said is defendant (a), in not [here recite so much of the mandatory part of the (o) If ihe suit wai commenced by adminwtration summons, say: — "In a certain matter and cause intituled ' In the matter of [tet forth the ftM ttUe, verbatim, as in the decree or order].' " INDOKSEMENTS ON ATRITS OF ATTACHMENT. 169 order as directs the payment of the mormp, as by the said order the said was commanded. Returnable . Tested day of \_Na-me, 8fc., of the Solicitor or Party issuing the Writ.] Enter praecipe : — that is, leave one copy with the clerk at the entering seat in the registrars' office, and the other, marked entered by him, leave witii the officer who seals the writ. Special Requirement. — Produce an office copy of the affidavit of service of the decree or order, proving also demand and non-payment. No. 183. For Non-Payment of Money, Interest, and Costs. By the Couit. For breach of an order dated the day of , made in a cause wherein is plaintiff, and the within- named is defendant, in not [here recite so much of the mandatory part of the order as directs the payment of the money and interest], and also in not paying to the said plaintiff the sum of — — , the amount of the said interest as verified by the affidavit of , filed the day of , and also for not paying to the said plaintiff the sum of , costs in the said cause, as by the said order the within-named was commanded. \Name, 8fc., of the Solicitor or Party issuing the Writ.] Ordinary Official Requirements. — See the directions appended to the preceding form, the only variation being in the form of the praecipe, which must follow the language of the indorsement. Special Requirements. — Produce an office copy affidavit, prov- ing due service of the decree or order, proving also service 170 INDORSEMENTS ON WRITS OF ATTACHMENT. of a copy of the affidavit verifying the interest s.jrQving, too, demand and non-payment. Produce, likewise, an office copy of the affidavit of service of the subpoena for the costs, proving also demand and non-payment of such costs. No. 1S4. For Non-Payment of Money into Court. Ordinary Official Requirements. — See Form of Indorsement, No. 121 (p. 168), and the directions appended thereto— in- cluding the Praecipe, No. 122, on the same page. Special Reqmrement. — Produce an office copy of the affidavit of service of the decree or order, and the Accountant- General's certificate of default. No. 1S5. For not Executing a Deed, Ordinary Official Requirements. — See Form of Indorsement, No. 121 (p. 168), and the directions appended thereto — in- cluding the Prsecipe, No. 122, on the same page. Special Requirement. — Produce an office copy of the affidavit of service of the decree or order, proving also tender of the deed for execution, and refusal; and further, that upon the party so refusing to execute such deed, notice was given to such party to the effect that such deed would lie for signature and execution by him at a certain place thenceforward and until the day of {the last day of the time limited hy the decree or order), and that " notwithstanding such service, tender, and notice, the said hath hitherto wholly neglected and refused to execute the said deed as by the said decree [or, order] he was commanded." The affidavit as to default should, if possible, be sworn on the day on which the attachment is issued. INDORSEMENTS ON WRITS OF ATTACHMENT. 171 No. 126. For not Making and Filing Affidavit as to tJie Possession of Documents. Ordinary Official Requirements. — See Form of Indorsement, No. 121 (p. 168), and the directions appended thereto — including the Praecipe, No. 122, on the same page. Special Requirement.^''ProdLUCQ an office copy of the affidavit of service of the order, proving also that search has been made in the register of affidavits, and that " it does not appear there- from that any such affidavit as is required by the said order hath been filed," and " that the said hath not made and filed such affidavit as by the said order he was commanded." The affidavit as to default should, if possible, be sworn on the day on which the attachment is issued. No. 127. F(yr not Leaving Documents with the Clerk of Records and Writs, or not Producing Documents at the Office of a Solicitor. Ordinary Official Requirements. — See Form of Indorsement, No. 121 (p. 168), and the directions appended thereto — including the Praecipe, No. 122, on the same page. Special Requirement. — Produce an office copy of the affidavit of service of the order. If the documents were ordered to be left at the Record and Writ Clerks' office the default, if made, wiU appear from the office books, therefore no evidence as to default need be pro- duced. If the documents were ordered to be produced at the office of a solicitor, then, in addition to the affidavit of service, an affidavit showing default will be required. For the form of such affidavit, see " Affidavits." ,172 INDOESEMENTS ON WRITS OF ATTACHMENT. No. 128. For not Leaving Accounts, 8fc., in Chambers. Ordinary/ Official Requirements. — See Form of Indorsement, No. 121 (p. 168), and the directions appended thereto — includ- ing the Praecipe, No. 122, on the same page. Special Requirement. — Produce an ofi&ce copy of the affidavit of service of the order, proving also that search has been made " in the register of proceedings kept in the chambers of the Judge, and that it does not appear therefrom that the accounts mentioned in the said order have been left,"and " that the said hath not left such accounts in the chambers of the said Judge as by the said order he was commanded." The affidavit as to default should, if possible, be sworn on the day on which the attachment is issued. No. 129. For not Delivering Deeds, Sfc, to a Party. Ordinary Official Requirements. — See Form of Indorsement, No. 121 (p. 168), and the directions appended thereto — includ- ing the Praecipe, No. 122, on the same page. Special Requirement. — Produce an office copy of the affidavit of service of the decree or order, proving also demand and refusal. No. 130. For not Attorning to a Receiver. Ordinary Official Requiremjents.^-See Form of Indorsement, No. 121 (p. 168), and the directions appended thereto — includ- ing the Praecipe, No. 122, on the same page. Special Requirement. — Produce an office copy of the affidavit of service of the order, directing the tenant to attorn to the receiver ; also, office copy affidavit by the receiver, proving that "the tenant , the person mentioned in the order, be jing date the day of , hath not attorned tenant to me INDOESEMEKTS ON WEITS OF ATTACHMENT. 173 as receiver, but hath wholly refused or neglected to obey the said order according to the exigency thereof." The application for the order directing the tenant to attorn, is to be supported by the following evidence, viz. : — 1. Affidavit of personal service on tenant of order appoint- ing receiver. 2. Affidavit of personal service on tenant of notice of motion for order directing him to attorn. 3. Affidavit by receiver, proving that he had requested the tenant to attorn, and to sign a memorandum to that effect, but that he, the tenant, had refused so to do. In Masferman v. Bance, 17th June, 1852, the terms of the notice of motion were, " that the tenant may, within four days after service of the order to be made hereon, attorn tenant to the said , the receiver, or stand committed to the custody of the Keeper of the Queen's prison ; " But, not- withstanding the order was drawn up in the terms of the notice of motion as to committal upon default. His Honor the late Vice- Chancellor Parker, on the 11th June, 1853, directed that an attachment should issue, and the attachment was accordingly sealed on the 17th June, 1852. No. 131. For Non-Payment of Money to an Official Manager under the Joint- Stock Companies Winding-up Acts. By the Court. For breach of an order bearing date the day of , made " in the matter of {set forth the full title of the matter, as in the order], by , the master charged with the winding-up of the said company [or, the JudgQ to whose court the said matter is attached, as the case may he], in not [reoite so much of the mandatory part of the order as directs the payment of the money], as by the said order the within- named was commanded. iName, 8fc., of the Solicitor or Party issuing the Writ.] 174 INDOESEMENTS ON WRITS OF ATTACHMENT. Ordinary Official Requirements. — See the directions appended to Form No. 131 (p. 168), except as to Form of Praecipe, which should he as follows, viz.: — No. 132. In Chanceey. In the mat ierT Seal an attachment directed to the of [set forth, con- \ sheriff of , against , for breach dsely, the title of [ of an order made in the matter of the matter^. -' [set forth thefuU Utle of the matter as in the order], by , the Master charged with the winding-up of the said company [or, the Judge to whose court the said matter is attached, as the case may he\, in not [rectfe so much of the mandatory part of the order as directs the payment of the money] as by the said order the said was commanded. Ketumable . Tested day of . [Name, Sfc, of the Solicitor or Party issuing the Writ.] Special Requirement. — ^Prodnce an office copy of the affidavit of service of the Order, proving also non-payment. In these cases no demand is necessary, either by the official manager, or by any other person ; but the affidavit proving the non-payment must be made by the official manager. H there be more than one official manager, every one of them must make oath as to the non-payment. No. 133. Where part of a Sum of Money ordered to be paid remains due. By the Court. For breach of an order dated the day of made in a cause (a) wherein is complainant, and (a) If the tuii teas eommenced by aJministraium tvmmong, or the order directing payment tnu viade under the Joint-Stock Comptmiti Winding-vp Actt, or in anj INDORSEMKNTS ON WRITS OF ATTACHMENT. 175 is defendant, in not paying the sum of , being the residue of a sum of — — , by the said order directed to be paid by the within-named to . \_JVame, 8fc., of the Solicitor or Parti/ issuing the Writ.'] Ordinary Official Requirements. — See the directions appended to Form No. ISl (p. 168), except as to the Form of Praecipe, which should be as follows, viz. : — No. 134. In Chancery. -I Seal an attachment directed to the Sheriff of V. L , against , for breach of an order made J in a cause (a) wherein is complainant, and is defendant, in not paying the sum of , being the residue of a sum of , by the said order directed to be paid by the said to . Eetumable . Tested — — day of - [Name, 8fc., of the Solicitor or Party issuing the Writ.] Special Requirements. — For these requirements the prac- titioner is referred to the observations in the preliminary note to " Writs," under " Enforcing Orders which have been partially obeyed " (pp. 146 and 147). The observations referred to are applicable to any case where part of a sum of money ordered to be paid remains due — the only partial exception being, that where the order is made in a matter under the Joint- Stock Companies Winding-up Acts, and directing payment to the official manager, neither tibe official manager nor any other person need demand payment. other "matter," eay: — " In a certain matter intituled ' In the matter of [let forth the fvU title, verbatim, as in the wder].^ " (a) See note (a), p. 174. 176 INDORSEMENTS ON WBITS OF ATTACHMENT. No. 135. For Non-Payment of Money directed to he paid by an Order made by the Court of Chancery in Ireland. By the Court. For breach of an order made by the High Court of Chancery in Ireland, dated the day of , in a cause wherein is complainant, and is defendant, in not \recite so much of the mandatory part of the order as directs the payment of the money], as by the said order the within-named was commanded. [Name, 8fc., of the Solictor or Party issuing the Writ.] Ordinary Official Requirements. — See the directions appended to Fprm No. 121 (p. 168), except as to the Praecipe, which should be in the following form, viz. : — No. 136. In Chanceet. Seal an attachment, directed to the sheriff of , against , for breach of an order made } by the High Court of Chancery in Ireland, dated the day of — ■ — , in a cause wherein is complainant, and is defendant, in not [recite so much of the mandatory part of the order as directs the payment of the money\, as by the said order the said was commanded. Ketumable . Tested day of . [Name, 8fc., of the Solicitor or P-arty issuing the Writ.] Special Requirement. — ^Produce order of the Court of Chancery in England, directing the attachment to issue. INDORSEMENTS ON WRITS OF ATTACHMENT. 177 No. 137. For Kon-Payment of Purchase Money directed to be paid by an Order made by the Cowt of the Commissioners for the Sale of Incumbered Estates in Ireland. By the Court. Issued pursuant to an order made by the Court of the Commissioners for the Sale of Incumbered Estates in Ire- land, bearing date tho ■ day of , in a certain matter intituled " In the matter of \set forth the full title, verbatim, as in the order], for not paying into the Bank of Ireland, to the credit of the said matter, the sum of , being the amount of the purchase money for lots , , and , of which by the certificate of sale in the said matter the within-named was declared to be the purchaser. [Name, 8fo., of the Solicitor issuing the Writ.] Ordinary Official Requirements. — See the directions appended to Form No. 121 (p. 168), except as to Form of Praecipe, which should be as follows, viz. : — No. 138. In Chanceey. In the matter N Seal an attachment, directed to the of [set forth, con- I sheriff of , against , issued dsely, the title of | pursuant to an order made by the the matter]. ^ Court of the Commissioners for the Sale of Incumbered Estates in Ireland, bearing date the day of , in a certain matter intituled "In the matter of [set forth the full title, verbatim, as in the order]," for not paying into the Bank of Ireland, to the credit of the said matter, the sum of , being the amount of the purchase money for lots , , and , of which by the certificate of sale in the said matter the said was declared to be the purchaser. Betumable . Tested day of . [Name, 8fc., of the Solicitor issuing the Writ.] 178 INDORSEMENTS ON WEITS OF ATTACHMENT. Special Requirement. — Proof that the order of the Commis- sioners has heen duly inrolled in England. As the Clerks of Eecords and Writs now perform the duties of Secretary of Decrees, this proof may be ascertained from the office books, by the officer who seals the writ. In some cases an order for leave to issue the attachment may be necessary. But see observations in Preliminary Note, on pp. 140 and 141. No. 139. For Non-Payment of Costs. By the Court. For not paying the sum of , costs, to , in a cause (a), wherein the said is complainant, and the within-named is defendant. [Name, 8fc., of the Solicitor or Party issuing the Writ.] Ordinary Official Requirements. — See the directions appended to Form No. 121 (p. 168), except as to Form of Praecipe, which should be as follows, viz : — No. 140. In Chanceey. Seal an attachment directed to the sheriff of — against , for not paying the sum of — , costs, to , in a cause (a), wherein is plaintiff, and the said is defendant. Returnable — — . Tested day of . }: {Name, 8fc., of the Solicitor or Party issuing the Writ.'] (o) If the suit vxa eommertced hy an administration summrms, Bay: — "In a certsun matter and cause intituled ' In the matter of,' &o. [set forth the fall title, verbatim, as in the order]." Jf the order was made vmder the Joint-Sioch Companies Wimding-vp Acts, tec in any other "matter," say : — "In a certain matter intituled [set forth the tide of the Toatter, veriatimy INDOESEMENTS ON WBITS OF ATTACHMENT. 179 Special Requirement. — ^Produce an office copy of the affidavit of service of the suhpcena for costs, proving also demand and non-payment. In all cases where payment of costs is sought to he enforced hy attachment, a subpoena must precede the attachment. It has been thought proper, therefore, to give the information showing in what cases suhpcena and attachment may issue for the recovery of costs, in the observations appended to the Form of " Subpoena for Costs." In Wroe v. Clayton an attachment for costs issued where the affidavit of service of " the subpoena had been sworn fifteen months previously. See this case more particularly referred to, under title " Eeturns to be inserted in Writs of Attachment," p. 153. No. 141. For not Naming a Solicitor, By the Court. For not naming a solicitor in a cause wherein is complainant, and the within-named is defendant. {Name, 8fc., of the Solicitor or Party issuing the Writ.'] Ordinary Official Requirements. — See the directions appended to Form No. 121 (p. 158), except as to Form of Praecipe, which should be as foUows, viz : — No. 142. In Chancery. T Seal an attachment directed to the sheriff of t against , for not naming a solicitor in a cause wherein is plaintiff, and the said is defendant. Eeturnable . Tested day of [Name, ^c, of the Solicitor or Party issuing the Writ-I N 2 180 C0M5IISSION TO EXAMINE WITNESSES — IN ENGLAND, ETC. Special Requirement. — Produce an office copy of the affidavit of service of the subpoena. The requirements of the subpoena are complied with, by the new solicitor of the party giving a notice to the Clerk of Eecords and Writs, in whose division the cause is, of his being concerned for such party. And such notice is entered in the the Cause Book kept by the Clerks of Eecords and Writs. Consequently, if default has been made, it will sufficiently appear from the office books, and need not, therefore, be proved by affidavit. In this case a subpoena must precede the attachment. It has been thought proper, therefore, to give information in reference to this subject, in the observations appended to the Form of " Subpoena to name a Solicitor." COMMISSION TO EXAMINE WITNESSES. No. 143. Within the Jurisdiction of the Court. Victoria, &c. To A. B. and C. D. iftco Commisgioners only). Greeting. Know ye, that we, in confidence of your prudence and fidelity, have appointed yon, and by these presents do give unto each of you fall power and authority, diligently to examine all witnesses whatsoever upon certain interro- gatories to be exhibited to you in a cause wherein is complainant, and are defendants ; and therefore we command that one of you do, at certain days and places to be appointed for that purpose, cause the said witnesses to come before you, and then and there examine each of them apart upon the said interrogatories, either on their respective corporal oaths first taken before you upon the Holy Evangelists, or, in the ease of Quakers, upon their solemn aflBrmation and declaration, or in such other solemn manner as is or may be authorised by law, and that you do take such their examinations, and reduce them into writing on parchment ; and when you shall have so taken them, yon are to send the same to us in our Chancery without delay, wheresoever it shall then be, closed up and COMMISSION TO EXAMINE WITNESSES — IN ENGLAND, ETC. 181 under your seal, distinctly and plainly set, together with the said interrogatories and this writ. And we further command you, that hefore you act in or he present at the swearing or examining any witness or witnesses, you do take the oath first specified in the schedule hereunto annexed. And we further command, that all and every the clerk or clerks employed in taking, writing, tran- scribing, or eijgrossUig the deposition or depositions, of witnesses to be examined by virtue of these presents, shall, before he or they be permitted to act as clerk or clerks as aforesud, or be present at such examination, severally take the oath last specified in the said schedule annexed ; and we also give to you full power and authority to administer such oath to such clerk or clerks in manner aforesaid. Witness ourself at Westminster, the day of , in the -^^ — year of our reign, EoMtLLT, M. R. Oaths to be annexed to a Commission to Examine Witnesses in Ensland, etc? The Comrimsioners' Oath. You shall, according to the best of your skill and know- ledge, truly, faithfully, and without partiality to any or either of the parties in this cause, take the examinations and depositions of all and every witness and witnesses produced and examined, by virtue of the commission here- unto annexed, upon the interrogatories produced and left with you ; and you shall not publish, disclose, or make known to any person or persons whatsoever, except to the clerk or clerks by you employed and sworn to secrecy in the execution of this commission, the contents of all or any of the depositions of the witnesses, or any of them, to be taken by you by virtue of the said commission, until publication shall pass {a) pursuant to some general or special order of the High Court of Chancery. So help you God. (a) Where any svush Commission is issued, might not this Form he varied^ thus, — ' until the time for closing the evidence in the said cause shall duly expire ? ' 183 COMMISSION TO EXAMINE WITNESSES ABEOAD. The Clerks' Oath. You shall truly and faithMly, and without partiality to any or either of the parties in this cause, take and write down, transcribe and engross, the depositions of all and every witness and witnesses produced before and examined by either of the commissioners named in the commission hereimto annexed, as far forth as you are directed and employed by the said commissioner to take, write down, or engross the said depositions or any of them; and you shall not publish, disclose, or make known to any person or persons whatsoever, the contents of all or any of the depositions of the witnesses, or any of them, to be taken, written down, transcribed, or engrossed by you, or whereto you shall have recourse or be any ways privy, until publication shall pass (a) pursuant to some general or special order of the High Court of Chancery. So help you God. . -FoEM OP Indoesement. By Order of Court. {Name, 8fc., of the SoUdtor or Party issuing the Writ.} FoEM OF Pe^cipe. No. 144. In Chancery. "^ Seal a commission to examine witnesses, t: > directed to [set forth the names of the Commis- J sioners']. Tested day of . [Ifame, 8fc., of the Solicitor or Party issuing the Writ.'] No. 145. To Examine Witnesses out of the Jurisdiction of the Court. ViCTOEIA, &C. To \mt less than four Commissioners], Greeting. Know ye that we, in confidence of your prudence and (a) See note (a) on p. 181. COMMISSION TO EXAMINE WITNESSES ABROAD. 183 fidelity have appointed you, and by these presents do give unto you, any two or more of you, full power and' authority, diligently to examine all witnesses whatsoever, upon certain interrogatories to be exhibited to you, as well on the part of , complainants, as on the part of , defendants, or of either of them, in a cause whereia the said are complainants, and the said are defendants. And therefore we command you, any two or more of you, that at such certain days and places to be appointed by you for that purpose, you do cause the said witnesses to come before you, any two or more of you, and then and there to examine each of them apart upon the said interrogatories on their respective corporal oaths, to be first taken before you, any two or more of you, upon the Holy Evangelists, or in such other solemn manner as is most binding on their consciences. And that you do take such their examinations and reduce them into writing in the English language on parchment, and when you shall have so taken them you are to send the same to us in oiir Chancery [without delay, or, if why other return is named in the order, insert i{\, wheresoever it shall then be, closed up under your seals, or the seals of any three or two of you, distinctly and plainly set, together with the said interrogatories, and this writ, and a certificate in what manner the oath is administered to such witness or wit- nesses who cannot speak or understand the English language. And we further, command yoai, and every of you, that before any one of you act in, or be present at, the swearing or examining any witness or witnesses, you do severally taie the oath first specified in the schedule hereunto annexed. And we give you, any three, or two, or one of you, full power and authority jointly [or seve- rally to administer such oath to the rest or any other of you, upon the Holy Evangelists. And we further com- mand that all and every the clerk or clerks employed in taking, writing, transcribing, or engrossing the deposition or depositions of witnesses to be examined by virtue of these presents, shall, before he or they be permitted to act 184 COMMISSION TO EXAMINE WITNESSES ABEOAD. as clerk or clerks as aforesaid, or be present at such examination, severally take the oath last specified in the said schedule annexed. And we also ^ve to you, or any one of you, full power and authority, jointly and severally to administer such oath to such clerk or clerks, upon the Holy Evangelists. And we do farther give and grant unto you fuU power and authority, and by these presents com- mand you that, if necessary, you or any three, or two, or more of you do, after you have so entered upon the exe- cution of this commission, swear one or more interpreter or interpreters upon his or their oatii or oaths, solemnly, well, and truly, to interpret the oath or oaths and interro- gatories which shall be administered and exhibited [by either party, if the eommission is to examine on the part of plaintiffs and defendants] to any of such witnesses who do not understand the English language, out of the English language into the language of such witness or witnesses, and also to interpret their respective depositions taken to • the said interrogatories, out of the language of such wit- ness or witnesses into the English language, and to keep such depositions secret until publication shall duly pass (a) in the said cause. Witness ourself at Westminster, the day of , in the year of our reign. BoMHiiiT, M. B. Oaths to be Annexed to a Commission to Examine Witnesses Abeoad. 27ie Commissioners' Oath. You shall, according to the best of your skill and know- ledge, truly, faithfully, and without partiality to any or either of the parties in this cause, take the examinations and depositions of all and every witness and witnesses produced and examined by virtue of the commission here- unto annexed, upon the interrogatories produced and left (a) See note (o) on p. 181. COMMISSION TO EXAMINE WITNESSES ABEOAD, 185 with you, and you shall not publish, disclose, or make known to any person or persons whatsoever, except to the clerk or clerks by you employed, and sworn to secrecy in the execution of this commission, the contents of all or any of the depositions of the witnesses, or any of then^, to be taken by you and the other commissioners in the said commission named, or any of them, by virtue of the said commission, until publication shall pass (a) pursuant to some general or special order of the High Court of Chancery. So help jou God, The Clerks' Oath, You shall truly and faithfully, and without partiality to any or either of the parties in this cause, take and write down, transcribe, and engross the depositions of all and every witness and witnesses produced before and examined by the commissioners, or any of them named in the com.- mission hereunto annexed, as far forth as you are directed and employed by the said commissioners, or any of them, to take, write down, or engross the said depositions or any of them ; and you shall not publish, disclose, or make known to any person or persons whatsoever, the contents of all or any of the depositions of the witnesses or any of them to be taken, wrote down, transcribed, or engrossed by you, or whereto you shall have recourse or be any ways privy, until publication shall pass (a) pursuant to some general or special order of the High Court of Chancery. So help you God. Form op Indoesement. By Order of Court. [Name, 8fc., of the SoKcitor or Party issuing the Writ.] (a) See note (o) on p. 181. 186 PRACTICE AS TO COMMISSIONS TO EXAMINE WITNESSES. FoEM OF Precipe. No. 146. In Chancery. Seal a commission to examine witnesses at — , directed to [set forth the names of the Com- ] missioners'] . Hetumable without delay. Tested day of . [Name, ^c, of the Solicitor or Party issuing the Writ.} Although, by section 35 of the Act 15 & 16 Vict. c. 86, it is enacted, tiiat " it shall not be necessary to sue out any com- mission for the examination of any witnesses within the juris- diction of the court," yet, by a proviso contained in the 28th section of the same Act, it is provided, that the Court may, if it shall think fit, order any particular witness or witnesses within the jurisdiction of the court, or any witness or witnesses out of the jurisdiction of the court, to be examined upon inter- rogatories, in the mode heretofore practised in the court, and therefore, it has been thought desirable to introduce into this work the two preceding Forms. It will be seen, fi:om the sections before referred to, that the commission can only issue pursuant to a special order of the Court, and that the practice and course of proceeding thereupon, is to be governed either by the provisions of the former practice (for which see General Orders, 8th May, 1845, Nos. 94 to 110), or by such special directions as may be given by the Court with reference to any particular case. The writ, if issued, must be stamped with & 11. Chancery fee fund stamp, and the order for the writ must be produced to the ofi&cer, at the time the writ is presented for sealing. For other information with respect to the execution of any such commission, and the fees payable to the commissioners, see observations under title " Evidence," pp. 124 and 135. COMMISSION TO ASSIGN GUARDIAN FOE AN INFANT. 187 COMMISSION TO ASSIGN GUARDIAN. No. 147. VlCTOMA, &C. To [insert not less than four Commissioners' names'] , Greeting. Whereas , complainant, hath lately exhibited his bill of complaint before us in our Court of Chancery [or, filed his claim in our Court of Chancery, as the case may he\ against , defendant. And whereas we have lately commanded the said defendant to appear before us in our said Chancery at a certain day now past, but forasmuch as the said defendant is an infant under age, and cannot defend this suit without having a guardian assigned him in that behalf; Know ye therefore that we have given unto you, any three or two of you, full power and autho- rity, in pursuance of an order of our said Court, to assign and appoint a guardian for the said infant, by whom he may defend this suit, and therefore we command you, any three or two of you, that at such certain day and place as you shall think fit, you go to the said defendant, if he cannot conveniently come to you, and assign and appoint a guardian for the aforesaid defendant, by whom he may defend this suit, and when you shall have so done, you are to send your certificate of your having assigned and appointed such guardian, closed up under the seals of you, any three or two of you, together with this writ, unto us in our said Chancery without delay, wheresoever it shall then be. Witness ourself at Westminster, the day of , in the year of our reign. eomilly, m. e. Form of Indorsement. By Order of Court. [Name, 8fc., of the Solicitor issuing the Writ.] 188 commission to assign guabdjan — foe an infant. Form of Pe^cipe. No. 148. In Chancery, Seal a commission to assign guardian for ^ — , an infant, directed to [_Comrmssimers' 1} Tested — ^ day of , [l^ame, 8fc., of the Sali&itop issumg the Writ,] In all cases where the application is made by the defendant, and whether the infant resides within twenty miles from London, or elsewhere, within the jurisdiction of the court, an order, assigning a guardian, may be obtained as of course, upon petition, sup- ported by afi&davit, to the effect that the proposed guardian has no interest in the subject matter of the suit adverse to the interest of the infant therein, and that he is a fit and proper person to be appointed guardian of such infant. So that, in practice, not only is the commission dispensed with, but even in cases where the infant resides or is in London, or within twenty miles thereof, the attendance in court of such infant is dispensed with also. The foregoing is an outline of the practice which has ob- tained since 18S8, in relation to the appointment of guardians ad litem for infant defendants. But, inasmuch as the issuing of commissions to assign guardians has not been expressly abolished by any statutory practice of the court, it has been thought desirable to introduce the foregoing Form into this work. The writ, if issued, can only be issued pursuant to an order, to be obtained as of course, and must be stamped with a 11. Chan- cery fee fund stamp. The order must be produced to the officer, at the time the writ is presented for sealing. The following Form of Return must be made by the com- missioners : — disteingas — to restrain transfer of stock, etc. 189 Form of Commissioners' Return. No. 149. In Chancest* Betweeiij &c. [Title qf Cause.] To the Eight Honotirable the Lord High Chancellor of Great Britain. "We whose names are hereunto subscribedj being of the commissioners named in the commission hereunto annexed, did, in pursuance of the said commission, on the day of j cause , the infant in the said com- mission named, to come before us at the house of , situate at , and we then and there assigned and appointed to be his guardian, to defend this suit in his behalf. Before us,—- j Commissioners. The return should be engrossed on parchment, and the commissioners should indorse upon the commission itself the following memorandum : — " The execution of this commission appears in the schedule hereto annexed. I Commissioners." DISTEINGAS, To Eestrain Transfer of Stock, Shares, or Dividends. No, 150. Victoria, &c. To the Sheriffs of London (a). Greeting. "We command you, that you omit not by reason of any liberty, but that you enter the same and distrain the Governor and Company of the Bank of England by all their lands and chattels in your bailiwick, so that they or any of them do not inter- meddle therewith, until we otherwise command you, and (a) The direction of the writ is, of course, dependent upon the county or place in ■which the chief office of the Company to be restrained is situate. 190 DISTRINGAS — TO KESTBAIN TEANSFEB OF STOCK, ETC. that you answer us the issues of the said lands, so that they do appear before us in our High Court of Chancery, on the day of {a), to answer a certain bill of complaint, lately exhibited against them and other defendants, before us in our said Court of Chancery, by , complainant, and further to do and receive what our said Court shall then and there order in the premises, and that you then have there this writ. Witness ourself at Westminster, the day of , in the year of our reign. EoMIIiLY, M. K. FoEM or Indorsement. \_Name, 8fc., of the Solicitor or Tarty issuing the Writ.] FoEM OF Pb^cipe. No. 151. In Chanceey. XSeal distringas to restrain transfer of stock on behalf of . .;• Returnable . Tested day of [Name, 8fe., of the Solicitor or Party issuing the Writ.] Power of the Cowrt to restrain Tramsfer. The Court may, upon motion or petition, upon the applica- tion of any party interested, restrain the Governor and Com- pany of the Bank of Engtand, or any other public company, whether incorporated or not, from permitting the transfer of any stock in the public funds, or of any stock or share in any public company, which may be standing in the name or names of any person or persons, or body politic or corporate, in the books of the Governor and Company of the Bank of England, or in the books of any such public company, or from paying any dividend or dividends due or to become due thereon. — 5 Vict., c. 5, s. 4. (a) For retnm to te inserted, see p. 192. PRACTICE AS TO DISTEINGAg ON STOCK, ETC. 191 Any Party interested may issue a Distringas. — ^Any person oi* persons claiming to be interested in any stock transferrable - at the Bank of England, standing in the name or names of any other person or persons, or body politic or corporate, in the books of the Governor and Company of the Bank of England, may, by his or their solicitor, prepare a writ of distringas, in the form set out in the Schedule to the Act 5 Vict., c. 5, and may present the same for sealing at the Eecord and Writ Clerks' office. — Order 1, 17th November, 1841. Although, in the last recited order, the books of the Governor and Company of the Bank of England 'alone are referred to, yet, in practice, the writ of distringas may issue to restrain the transfer of stock, shares, or dividends standing in the names of any person, or body politic or corporate, in the books of any public company, whether incorporated or not — such public companies, in fact, as are mentioned or referred to in the section (4) of the Act 5 Vict., c. 5, recited on p. 180. Affidavit necessary. — An affidavit, duly sworn by the person, or one of the persons, applying for such writ, or his solicitor, in the form, set forth in the General Order, 10th December, 1841, must be left with the officer, at the time the writ is pre- sented for sealing. — Order 3, 17th November, 1841. Although the party may not be able to ascertain, and to specify in the affidavit, the particular amount of stock, yet, the affidavit must specify the particular stock, and show in whose names such stock is standing. The residence, &c., of the party named as plaintiff should be set forth in the affidavit. If the party named as plaintiff in the affidavit is under disability, a next friend must be named, with the same formality as if a bill' were actually filed. But the written authority of the next friend to use his name is not required to be either filed or produced. In such cases the affidavit should be sworn to by the solicitor, or by the next friend. If the party named as plaintiff is a trustee only, and declines swearing that he is " beneficially" interested, the writ will be sealed notwithstanding that such word is omitted (a). Practice applicable to such Writs of Distringas. — The writ of distringas, and the practice under or relating to the same, is to be subject to such orders and regulations as inay be made with reference to the proceedings and practice of the Court of Chancery. — 5 Vict., c. 5, s. 5. The General Orders more immediately governing the practice (a) Bnt, query, might not the statement in the affidaTit be to the following effect, via.: — "That , for whom, under the will of , deceased, I am trustee, is beneficially interested," &c. ? 192 PRACTICE AS TO DISTRINGAS ON STOCK, ETC. in relation to writs of distringas, to restrain transfer of stock, are those of the 17th November, 1841, and 10th December, 1841, and, as to the fee payable on sealing, 30th January, 1857. The following form of notice is to be left with the dis- tringas (a) : — Form af Notice not topermU Transfer of Stock, 8fc. No. 153. In Chanceht; Between, &c. iTUkj as in Affidavit.] You are requested to take notice, that the distringas issued in this cause, and served herewith, hath been so issued, and is served, for the purpose of preventing and restraining any transfer of aU or any part of the [recite such part of the qfftdamt as describes the stack, 8fc., upon which the distringas is to operate], until the order of this Honour- able Coiirt be obtained. Dated this — — day of < Yours, &C-, To the Governor and Company of , of the Bank of England [or. Plaintiff's Solicitor. as the case may be"], and to their Solicitor, Secretary, and aU others whom it may con- cern. The writ must be stamped with a 5s. Chancery fee fund stamp. The original affidavit, produced to the officer at the time the writ is presented for sealing, is to be left with him to be filed. No office copy is required to be taken. Retwm to be Inserted. — Such writs have, since 1853, been made returnable on a day certain in term — the first, or last, day of term, for instance — but so as that there be not less than eight clear days between the teste and the return. The direction to the sheriff must, of course, be governed, by (a) In cases where the distringas is issued agiunst the Bank of England, the writ and notice may be left at the office of Messrs. Fr^field, the solicitors to the Bank,^ a fee of 13<, 4(2, being, at the same time, paid to them. DISTBINGAS — FOR NOT ANSWERING, ETC. 193 the place or jurisdiction within which the company to be dis- trained upon is located. The return does not, in practice, affect the operation of the writ, nor hinder any application to discharge the writ being made before the date of the return. Notwithstanding such return, and service of the writ and notice, the Bank CEKinot, without the authority of an order of the Court, refuse to permit a transfer, or withhold payment of dividends, for more than eight days after the date of a request to transfer or pay, made to them by the party in whose name the stock is standing. — See Order 4, 17th November, 1841. To continue the distraint, therefore, it is presumed that an order of the Court must be obtained, under the 4th section of the Act 5 Vict. c. 5 (recited on p. 190), or that the issuing of the writ must be followed up by the actual filing of a biU. The writ of distringas may, at any time, be discharged, by an order as of couree, by the party on whose behalf it was issued ; or by order, upon motion or petition, with notice, by any other party interested, the costs thereof being in the discretion of the Court.— See Order 3, 17th November, 1841. No. 153. Form op Distringas against a Corporation for want op Appearance or Answer, or for Breach op an Order OR Decree. Victoria, &c. To the sheriff of , Greeting. We command you {a} to make a distress upon aU the lands and tenements, goods and chattels, of , within your bailiwick, so as neither they the said , nor any other person or persons for them, may lay his or their hands thereon, until our Court of Chancery shall make other order to the contrary ; and in the meantime you are to answer to us for the said goods' and chattels, rents and profits of the said lands, so that the said may be compelled to appear before (a) In cm alias dUtrmgat, s.iy, "We command yon, as we haye before com- manded yon," &c. In a pluries distringas, say, "We command you, as oftentimes we have com- manded yon," &c. o 194 0ISTE1KGAS — FOE NOT ANSWEBING, ETC. US in our said Court of Chancery on [here insert the return], wheresoever it shall then be, there to answer to us as well touching a contempt which they, as it is alleged, have committed against us, as also such other matters as shall be then and there laid to their charge, and further to perform and abide such order as our said Court shall make in this, behalf; and hereof fail not, and bring this ■writ with you. Witness ourself at Westminster, the day of , in the year of our reign. B0MILI.T, M. B. The last preceding form of distringas is a form used in process of contempt against a corporation, preliminary to sequestration. The writ is issued against a corporation for the like purposes as an attachment against an ordinary party, and the preparation alnd sealing of such writ is governed by the same rules. It will be sufficient, therefore, to refer the practitioner to the several foregoing forms of indorsements on writs of attach- ment, and the Erections appended thereto. The following may, however, be stated as being the practice in relation to such writ. Three writs of distringas are frequently issued before an order for a writ of sequestratibn can be obtained. These are termed a " distringas," an " alias distringas," and a " pluries distringas." Upon the sheriff's return " nulla bona " to each of the three writs, an order for a sequestration may be obtained. But, if the sheriff returns issues 40s. to the first distringas, or issues in the increased amount to either of the subsequently issued writs of distringas, an order nisi for a sequestration may be obtained. tJppli sealing an alias, or pluries, distringas, the writ pre- viously sealed, with the sheriff's return, should be filed with, or produced to, the officer. The only distinction in the form of the several writs, is shown in note (a), p. 193. The form of praecipe should be " Seal a distringas," &c., or " Seal an alias distringas," &c., or " Seal a pluries distringas," &c> PRACTICE AS TO WBITS OF FI. FA. AND ELEGIT. 195 WEITS OF FIEEI FACIAS AND ELEGIT. PkEI/IMINAET OBSEEVATiONS. In what cases a Ft. Fa. issttes. — ^A writ of fieri facias or elegit may be issued for recovery of money or of costs,- and in either a cause or a matter. The order, directing payment of the money or costs, must set forth the names of the parties by and to whom such money or costs is or are to be paid. — See Order 1, 10th May, 1839, more fully set forth on p. 135. The order must be maAed with the day of the month and year on which it was left for entry. — See Order 2, 10th May^ 1889, set forth on p. 136. The date referred to, is that on which the order was dull/ passed and entered. — See Order 1, 10th May, 1839. After the lapse of one month (a), from the time when such order for payment was duly passed and enteredj the writ may be issuedi —See Order 1* 10th May, 1839. For Costa. — Payment of costs may be enforced by fieri facias or elegitj but only where the order directs by and to whom the costs are to be paid. For Payment into Court — Tiot issued.— ^A writ of fieri facias or elegit cannot be issued to enforce payment of money into Court. For Balance remaining due. — Where a fieri facias or elegit is issued for recovery of a balance of a sum of money or of costs remaining due^ the full sum mentioned in the order, or the full amount of costs, as taxed, may be inserted in the body of the writ, but in the indorsement of the sum to be levied^ so much only as remains due should be mentioned. For Balance ascertained to be dm. — Where the amount of the balance due, is of a balance ascertained to be due upon an account taken, another order directing payment of the amount so ascertained is to be obtained. But where the Court directs an account to be taken in order to ascertain what amount of money is due from one party to another, and, by the same order, directs that the amount when ascertained shall be paid by the party from whom, to the party to whom, it is due, and the names of such parties are mentioned in, or are clearly ascer- tainable from, the order, a writ of fieri facias or elegit may be issued for the recovery of the money, upon the original order (a) 28 days, see Order 12, 8th May, 1845. 2 196 PBACTICE AS TO WRITS OP FI. FA. AND ELEGrT. directing payment, and the chief clerk's certificate hy which the amount due is ascertained^ in like manner as costs, directed to be taxed and paid, are recoverable upon the original order directing payment and the taxing master's certificate. It* is not intended, however, to include in the preceding observation, the case of an order directing taxation of a solicitor's bill, and ascertainment thereunder of the balance due from the client to the solicitor, or from the solicitor to the client. In such cases an order must be obtained directing payment of the, ascertained sum. If to be enforced by fieri facias or elegit against the client, the order is obtained as of (Tpurse ; if against the solicitor, upon notice of motion. — See Preliminary Note to " Writs." But, it may be mentioned that, even in this case, if the order directing the taxation, also directs that the amount, when ascertained by the taxing master, may be recovered by fieri facias or elegit, a writ of fieri facias or elegit, may be issued, without further order. A form of fieri facias applicable to such case — where a balance has been ascertained to be due from the client-^is given in Form No. 181. . . ^ Where a fieri facias or elegit is issued for the recovery of 6oBts, the sum allowed by the taxing master's certificate for a subpoena (11. 2s. &cl.), must not be included in the amount sought to be recovered under the fieri facias or elegit. ■ Stamping and Sealing the Writ. — A writ of fieri facias or elegit, must be stamped with a 1/. Chancery fee fund stamp. — Sched. 3i Order, 30th January, 1857. And in all cases the order directing payment, or an office copy thereof, duly marked with the date of entry, a,s before mentioned, must be produced to. the officer at the time the writ is presented for sealing. If costs are sought to be recovered, an office copy of the taxing master's certificate (where the costs have been ascer- tained upon taxation), must be produced. Where the Court has, by its order, fixed the ampunt of costs to be paid, the fieri facias or elegit may issue upon the order. If sufficient has not been levied under the first fieri facias, a second writ may be issued, into the same or into another county. , A form of indorsement and praecipe is appended to emh form of fi. fa. and elegit here given, as it is believed that the numerous variations required would, if introduced into, or re- ferred to by, one form only, have tended rather to perplex the practitioner than to afford him real and ready assistance. FORMS OP WRITS OF ELEGIT. 197 No. 154. Form of Writ of Elegit for Payment of Monet, or Monet and Interest. On a Decree or Order of the C&urt of Chancery. Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To the Sheriff of -, Greeting. Whereas, lately in our High Court of Chancery, in a certain cause '[or, certain causes, as the case may 5e], there depending, wherein A. B. and others are plaintiffe, and -C. D. and others are defendants [or, in a certain matter there depending, intituled*" In the matter of E. F.," as the case may Je], by a decree \pr, order, as the case may he] of our said Court, made in the said cause \or, matter, as the case may be], and bearing date the day of — —, it was decreed and ordered [or, ordered, as the case may be], that the said C. D. should pay unto A. B. the sum of £ — : — [if interest be given by the order, say "together with interest thereon, after the rate of 4,1. per centum per annum, from the ^-^ — day of "]. And afterwards the said A. B. came into our said Court of Chancery, and according to the form of the statute in such cases made and provided, chose to be delivered to him [her or them, as the case may be], all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough ; and also all such lands, teneme;its, rectpries, tithes, rents, and hereditaments, inclijding lands and heredi- taments of copyhold or customary tenure, in your bailiwick, as the said C D., or any one in trust for him, was seised or possessed of on the day of -, in the year of our Lord — — , or at any time afterwards, or over which the said C. D. on the said day of (a), or at any time afterwards had any disposing power, which he (a) The day on vHoh tli day of \the date of the order, or if interest ordered to he paid, then the day mentioned in the order], together with 21. [add to this 21. the sum paid for the warrant], for this writ, warrant, &c., besides sheriff's poundage, officer's fees, and ajl other incidental expenses. No. 156. Form of Precipe, In Chancery. T Seal a writ of elegit directed to the sheriff of V. y — -r-, against , of , in the county of J , for not paying the sum of £^— to ^. Order dated day of . Tested - • day of . [Name, ^.c, of the Solicitor issuing the Writ,] No. 157. FoEM OF Weit dp JJleoit for Payment of Costs. On a Decree or Order of the Court of Chancery. Victoria, &c, To the Sheriff of , Greeting. Whereas, lately in our High Court of Chancery, in a certain cause [or, certain causes, as the case may be], there depending, wherein A, B. and others are plaintiffs, and C. D. and others are defendants [or, in a certain matter there 200 FORMS OF WRITS OF ELEGIT. depending, intituled " In the matter of E. F.," as the case may be], by a decree [or, order, as the case may be] of our said Court, made in the said cause [or, matter, as the case may be], and bearing date the day of , it was decreed and ordered \pr, ordered, aw the ease may be], that C. D. should pay unto A. B. certain costs as in the said decree [or, order, as the case may be] mentioned ; and which costs have been taxed and allowed by G. H., Esquire, one of the Taxing Masters of our said Court, at the sum of £ , as appears by the certificate of the said Master, dated the day of . And afterwards the said A. B. came into our said Cotirt of Chancery, and, according to the form of the statute in such case made and provided, chose to be delivered to him all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough ; and also all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and here- ditaments of copyhold or customary tenure, in your baili- wick, as the said C. D., or any one in trust for him, was seised or possessed of on the — -^ day of (a), in the year of our Lord , or at any time afterwards, or over which the said C. D. on the said — ^- day of (a), or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit ; to hold to him the said goods and chattels as his proper goods and chattels ; and to hold the said lands, tenements, rectories, tithes, rents, and here- ditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said sum of £ , together with interest thereon, at the rate of 4:1. per centum per annum, from the said day of (J), shall have been levied. Therefore we command you that, without delay, you cause to be delivered to the said A. B., by a reasonable price and extent, all the goods and chattels of the said C. D. in your hailiwick, except his (a) The date of the Master's certiaoate of taxation. {b) The date of the Master's certiaoate of taxation ; or, if that were prior to the let day of October, 18S8, say, "from the 1st day of October, 1838." FORMS OP WEITS OF ELEGIT. SOI oxen and beasts of the plough ; and also all such lands and tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or cus- tomary tenure, in your bailiwick, as the said CD., or any person or persons in trust for him, was or were seised or possessed of, on the said day of (a), or at any time afterwards, or oyer which the said C. D. on the said day of (a), or at any time afterwards, had any disposing power, which he might, without . the assent of any other person or persons, exercise for his own benefit ; to hold the said goods and chattels to the said A. B. as his proper goods and chattels ; and also to hold the said lands, tenements, rectories, tithes, rents, and hereditaments respectively, according to the nature and tenure thereof, to bim and to his assigns, until the said sum of £ , together with interest as aforesaid, shall have been levied. And in what manner you shall have executed this our writ, make appear to us in our Court of Chancery afore- said, immediately after the execution thereof, under, your seal and the seals of those by, whose oath you shall make the said extent and appraisement. And have there then this writ. Witijess ourself at Westminster, &c. EoMin^Y, M, E. No. 168. Form of Indorsement. By the Court. [The Name, Place of Residence, and Calling of the Party against whom the Writ is issued,} [The Name, S^c., of the Solicitor issuing the Writ.] Levy £— — [the amount of the costs], and interest thereon, from the day of [the date of the taadng master's certificate], together with 2/. [add to this 'Hi. the sum paid for the warrant], for this writ, warrant, &c., besides sheriff's poundage, officer's fees, and all other incidental expenses. (o) The date of the Master's certificate of taxation. 202 FORMS OF WBITS OF ELEGIT. No. 159. FOEM OF Pe^CIPE. In Chancery. ") Seal a writ of elegit directed' to the sheriff of -, against , of , in the county of , J for not paying the sum of £ , costs to Order dated — — day of . Taxing Master's certificate dated day of Tested — - — day of . iWame, 8fc., of the Solicitor issuing the Writ.] No. 160. Form pF Whit of Elegit for Payment op Monet and Costs. On a Decree or Order of the Court of Chancery. ViCTORJA, &c. To the Sheriff of , Greeting. Whereas, lately in our High Court of Chancery, in a certain cause [or, certain causes, as the case may he\, there depending, wherein A. B. and others are plaintiffs, and C. D. and others are defendants [or, in a certain matter there depending, intituled, " In the matter of E. F.," as the case may be\, hy a decree \pr, order, as the case may he] of our said Court, made in the said cause {or, matter, as the case may he], and hearing date the day of , it was decreed and ordered [or, ordered, as the case may he\, that C. D. should pay ui)ito A. B. the sum of S, , together with certain costs as in the said decree \(yr, order, as the case may be] mentioned { and which costs have heen taxed and allowed hy G. H., Esquire, one of the Taxing Masters of our said Court, at the sum of £-^ — , as appears by the certificate of the said Master, dated the day of . And afterwards the said A. B. came into our said Court of Chancery, and according to the form of the statute, in FORMS OF WRITS OF ELEGIT. 203 such case made and provided, chose to be delivered to him all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough ; and also all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copy- hold or customary tenure, in your bailiwick, as the said C. D., or anyone in trust for him, was seised or possessed . of on the day of , in the year of our Lord (a), or at any time afterwards, or over which the said C, D., on the said day of — : — , or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit ; to hold to him the said goods and chattels as his proper goods and chattels ; and to hold the said lands, tenements, rectories, tithes, rents, and hereditaments respectively, according to the nature and tenure thereof, to hi™ sud to his assigns, until the said two several sums of £ , and £ , together with interest upon the said sum of £ , at the rate of il, per centum per annum, from the day of (6), and on the said sum of £ , at the rate aforesaid, from the day of .— — (c), shall have been levied. Therefore we command you, that without delay you cause to be delivered to the said A. B., by a reasonable price and extent, all the goods and chattels of the said C. D., in your bailiwick, except his oxen and. beasts of the plough ; and also all such lands and tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or custo- mary tenure, in your bailiwick, as the said C. D., or any person or persons in trust for him, was or were seised or possessed of on the said — • — day of {d), or at any time afterwards, or over which the said C. D., on the said day of {d), or at any time afterwards, had any (a) The day on which the decree or order was made. (J) The day on which the decree or order was made, or in case it was made prior to the J St of October, 1838, say, ' ' from the 1st day of October, 1838." (c) The date of the Master's certificate of taxation, or if that were prior to the 1st day of October, 1838, say, " from the 1st day of October, 1838." (d) The day on which the decree or order was made. SOI FORMS OF WRITS OF ELEGIT. disposing power, which he might, without the assent of any other person, exercise for his own benefit; to hold the said goods and chattels to the said A. B. as his proper goods and chattels ; and also to hold the said lands, tene- ments, rectories, tithes, rents, and hereditaments respec- tively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of £, and £, , together with interest aforesaid, shall have been levied. And in what manner you shall have executed this our writ, make appear to us in our Court of Chancery aforesaid, immediately after the execution there- of, under your seal and the seals of those by whose oath you shall make the said extent and appraisement. And have there then this writ, Witness ourself at West- minster, &c. EOMILLY, M. R. No. lei. Form of Indorsement, By the Court. [The ifame, Place of Residence, and Callmg of the Tarty against ifihom the Writ is issteed.] {JH^ame, 8fc., of the Solicitor is^uiftg the Writ.] Levy £ ^ [the sum of money mentioned in the order], and interest thereon, from the day of — r— [the date of the order] also £, [the amount of the costs], and interest thereon from the day of [the date of the tawing master's certificate], together with 2/. [pdd to this 'ill. the mm paid for the warrant], for this writ, warrant, &c., besides sheriff's poundage, officer's fees, and all other incidental expenses. FORMS OF WRITS OF ELEGIT; 203 No. 163. Form of PR^ciPEi In Chancery. -> Seal a writ of elegit directed to the sheriff v. I of — , against , of , in the county of J , for not paying £ {the mm mentioned in the order), and also £ , for costs to — ■—. Order dated day of -. Taxing Master's Certificate dated ^ day of — =-. Tested day of — ^-^^ . [Name, S^c, of the Solidior issuing tJie Writ.] No. 163. Form of Writ of Elegit for Payment of Money, Interest, and Costs. On a Decree or Order of the Court of Chancery. Victoria, &c. To the Sheriff of '■ , Greeting. Whereas, lately in our High Court of Chancery, in a certain cause [or, certain causes, as the case may he] , there depending, wherein A. B. and others are plaintiffs; and C. D. and others are defendants \or, in a certain matter there depending, intituled " In the matter of E. F.," as the case may be'] , by a decree [or, order, as the case mm/ he\ of our said Courtj made in the said cause \pr matter, as the case may he\ and bearing date the day of , it was ordered and decreed \or, ordered, as the case may be], that C. D. should pay unto A. B. the sum of £ , together with interest thereon, after the rate of U. per centum per annum, from the day of , together also with certain costs, as in the said decree {or, order, as the case ma^j^e\ mentioned ; and which costs have been taxed 206 POEMS OF WEITS OF ELEGIT. and allowed by G. H., Esquire, one of the Taxing' Masters of our said Court, at the sum of £ , as appears by the certificate of the said Master, dated the day of . And afterwards the said A. B. came into our said Court of Chancery, and according to the statute in such case made and provided, chose to be delivered to him all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough ; and also all such lands, tenements, rectories, tithes, rents, and heredita- ments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick, as the said C. D., or any one in trust for him, was seised or possessed of on the day of , in the year of our Lord (a), or at any time aftei-wards, or over which the said C. D. on the said day of (a), or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit ; to hold to him the said goods and chattels, as his proper goods and chattels, and to hold the said lands, tenements, rectories, tithes, rents,- and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of £ , and £ , together with interest upon the said sum of £ , at the rate of AL per centum per annum, from the said day of (6), and on the said sum of £ , at the rate aforesaid, from the day of (c), shall have been levied. Therefore we command you, that without delay you cause to be delivered to the said A. B., by a reasonable price and extent, all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough ; and also all such lands and tene- ments, rectories^ tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick) as the said C. D., or any person or (a) The day on wHch the decree or order w4s made. (6) The day mentioned in the decree or order. (c) The date of the Master's certificate of taxation ; or, if that were prior to the let day of October, ISSSj say, "from the 1st day of Oetoher, 1838." FORMS or WEITS OF ELEGIT. 207 persons in trust for him, was or were seised or possessed of on the said day of {a), or at any timfe afterwards, or over which the said C. D. on the said ^^^^ day of , or at any time afterwards, had any disposing poWer which he might, without the assent of any other person, exercise for his own benefit ; to hold the said goods and chattels to the said A. B.- as his proper goods and chattels ; and also to hold the said lands, tenements, rectories, tithes, rents, and hereditaxnents respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of £ — '■ — , and £— , together with interest as aforesaid, shall have been leVied. And in what manner you shall have executed this our writ make appear to us in oiir Court of Chancery aforesaid, immediately after the execution thereof, under your seal, and the seals of those by whose oath yon shall make the said extent and appraisement. And have there then this writ. Witness ourself at "Westminster, &c. KOMILLT, M. E. No. 164. Form of Indorsement. By the Court. [The Name, Place of Residence, and Calling of the PaHy against whom the Writ is issued^] [The Name, Sfc, of the Solicitor issuing the Writ.] Levy £ {the sum mentioned in the order,] and interest thereon, from the day of [tJie date mentioned in the order] . Also £ — =^ [the amount of the costs] , and interest thereon, from the — ^ — day of [the date of the taxing master's certificate], together with 21. [add to this 21. the sum paid for the warrant] for this writ, warrant, &c., besides sheriff's poundage, officer's fees, and all other incidental expenses. (a) The day on which the decree or order was made* 208 FOEMS OP WRITS OF FIEEI FACIAS. No. 166. * FoBM OF Praecipe. In Chancery. 1 Seal a writ of elegit directed to the sheriff of V. I , against , of , in the county of -. J , for not paying the sum of £ — — [the sum mentioned in the order], together with interest thereon from the ■ day of [the day mentioned in the order'], and the sum of £, for costs, to . Order dated day of -^^ — . Taxing Master's certificate dated day of- — . Tested ■^-^~ day of [The Name, 8fc., of the SoUeitor issuing the Writ.] No. 166. Form of "Writ of Fieri Facias fob Payment op Monet. On a Decree or Order of the Court of Chancery. Victoria, &c. To the Sheriff of -^ — , Greeting. We command you that of the goods and chattels of C. D., in your bailiwick, you cause to be* made the sum of £ , which lately before us in our High Court of Chancery, in a certain cause [or, certain causes, as the case may he], wherein A. B. is plaintiff, and C. D: is defendant [or, in a certain matter there depending, intituled " In the matter of E. F.," as the case may be], by a decree [or, order, as the ease map he] of our said Court, bearing date the ■ day of — — , was decreed [pr, ordered, as the case may he] to be paid by the said C. D. to A. B. And that of the goods and chattels of the said C. D. in your bailiwick, you further cause to be made interest upon the said sum of FOEMS OF WRITS OF FIEEI FACIAL. 209 £ , at the rate of il. per centum per annum, from the day of (a). And that you have that money and interest before us in our said court, immediately after the execution hereof, to he paid to the said A. B. in pur- suance of the said decree [or, order, as the case may be]. And that you do all such things as by the statute passed in the second year of our reign you are authorised and required to do in this behalf; and in what manner you shall have executed this our writ, make appear to us in our said court immediately after the execution thereof. And have there then this writ. Witness ourself at Westminster, the day of , in the year of our reign. EOMILLT, M. E. No. 167. Form of Indorsement. By the Court. [The Name, Place of Residence, and Calling of the Party against whom the Writ is issued.] [The Name, 8fc., of the Solicitor issuing the Writ.] Levy £ [the sum mentioned in the order], and interest thereon, from the day of [the date of the order], together with 21. [add to this 21. the sum paid for the war- rant] for this writ, warrant, &c., besides sheriff's poundage, officer's fees, and all other incidental expenses. (a) The date on whict the decree or order was made ; or, if that were prior to the 1st of October, 1838, say, " from the 1st of October, 1838." 210 FORMS OF WRITS OF FIERI FACIAS. No. 168. Form of Precipe. In Chancery. Seal a writ of fieri facias directed to the sheriff of , against of • , in the county of — , for not paying the sum of £ to . Order dated day of . " Tested day of . [Name, 8fc., of the Solicitor issuing the Writ.] :} No. 169. Form of Writ of Fieri Facias for Payment op Money AND Interest. On a Decree or Order of the Court of Chancery. Victoria, &c. To the sheriff of , Greeting. We cominand you that of the goods and chattels of C. D., in your baili- ' wick, you cause to be made the sum of £ , and also interest thereon, at the rate of 4/. per centum per annum, from the day of (fl), which said sum of money and interest were lately before us, in our High Court of Chancery, in a certain cause [or, certain causes, as the case may he], wherein A. B. is plaintiff, and C. D. is defendant [or, in a certain matter there depending, intituled " In the matter of E. F.," as the case may be] by a decree or order [as the case may be] of our said court, bearing date the day of , decreed [or, ordered, as the case may he] to be paid by the said C. D. to A. B., and that you have that money and interest before us, in our said court immediately after the execution hereof, to be paid to the said A. B. in pursuance of the said decree [or, order, as the case may he]. And that you do all such things as by the (a) The day mentioned in the order. FORMS OF WRITS OF FIERI FACIAS. 211 statute passed in the second year of our reign you are authorised and required to do in this hehalf, and in what manner you shall have executed this our writ, make appear to us in our said court immediately after the execution thereof. And have there then this writ. "Wit- ness, &c. EOMILLT, M. R. No. 170. Form of Indorsement. By the Court. [The Name, Place of Besidence, and Calling of the party against whom the Writ is issued.] [The Name, 8fc., of the Solicitor issuing the Writ,] Levy £ [the sum mentioned in the order] and interest thereon from the day of [the day mentioned in the order], together vdth 21. [add to this 21., the sum paid for the warrant] for this writ, warrant, &c., besides sheriJBf's poundage, officer's fees, and all other incidental expenses. No. 171. Form of Piuscipe. In Chancery. Seal a writ of fieri facias, directed to the sheriff against — — of , in the county of «'• j- of for not paying the sum of & [the sum mentiotied in the order], and interest thereon from the day of [the day mentioned in the order], to • . Order dated — — day of — — . Tested day of — — . [Name, 8^c., qf the Solicitor issuing the Writ.] » 2 212 FOEMS OF WRITS OF FIERI FACIAS. No. 173. Form of Writ of Fieri Facias for Pa™ent of Money AND Costs, On a Decree or Order of the Court of Chancery. Victoria, &c. To the Sheriff of , Greeting, We command yon, that of the goods and chattels of C. D., in your bailiwick, you cause to be made the sum of £ , which said sum of money was lately before us in our High Court of Chancery, in a certain cause [or, certain causes, as the ease may be], wherein A, B. is plaintiff and C. D. is defendant [or, in a certain matter there depending, intituled " In the matter of E. F.," as the case may be], by a decree [or, order, as the case may be] of our said court, bearing date the day of , decreed [or, ordered, as the case may be] to be paid by the said C. D. to A. B., together with certain costs in the said order mentioned, and which costs have been taxed and allowed by G. H., Esquire, one of the Taxing Masters of our said court, at the sum of £ , as appears by the certificate of the said Master, dated the day of , and that of the goods and chattels of the said C. D., in your bailiwick, you further cause to be made the said sum of £ (a), together with interest at the rate of 4/. per centum per annum, on the said sum of £ (b), from the day of (c), and on the said sum of £ (a), from the day of (d), and that you have that money and interest before us in our said court immediately after the execution hereof, to be paid to the said A. B., in pursuance of the said decree [or, order, as the case may be]. And that you do all such (a) The Costa. (i) The money. (c) The date of the order ; or, if that were prior to the Ist day of October, 1838, Bay, " from the Ist day of October, 1838." {d) The date of the Master's certificate ; or if that were prior to the 1st of October, 1838, say, "from the 1st day of October, 1838." FOEMS OP WRITS OF FIERI FACIAS. 313 things as by the statute passed in the second year of our reign, you are authorised and required to do in this behalf ; and in what manner you shall have executed this our writ, make appear to us in our said court imme- diately after the execution thereof. And have there then this writ. Witness, &c. ROMILLY, M. R. No. 173. Form of Indorsement. By the Court. \_The Name, Place of Residence, and Calling of the Party against whom the Writ is issued.'] [The Name, 8fc., of the Solicitor issuing the Writ.'] Levy £ [the sum mentioned in the order} and interest thereon, from the day of [the date of the order] ; also £ [the amount of the costs] and interest thereon, from the day of [the date of the tamng master's certificate], together vdth 'HI. [add to this 21. the sum paid for the warrant] for this writ, warrant, &c., besides sheriff's poundage, officer's fees, and all other incidental expenses. No. 174. Form of Precipe. In Chancery. Seal a writ of fieri facias directed to the sheriff against of , in the county of , for not paying the sum of £ [the sum mentioned in the order], and £ costs to Order dated day of . ^ Sea Taxing Master's certificate dated day of Tested day of . [Name, 8^c., of the Solicitor issuing the Writ.] 214 FORMS OF WEITS OF FLEET FACIAS. No. 175. Form of Writ of Fieri Facias for Payment of Money, Interest, and Costs. On a Decree or Order of the Court of Chaneery. Victoria, &c. To the Sheriff of , Greeting. We command you, that of the goods and chattels of C. D., in your hailiwick, you cause to be made the sum of £ , and also interest thereon at the rate of ^l. per centum per annum, from the day of (a), which said sum of money and interest were lately before us in our High Court of Chalicery, in a certain cause {or, certain causes, as the case may 6e], wherein A. B. is plaintiff and C. D. is defendant [or, in a certain matter there depending, intituled " In the matter of E. F.," as the case may be], by" a decree [or, order, as the case may 5e] of our said court, bearing date the day of , decreed [or, ordered, as the case may be] to be paid by the said CD. to A. B., togethet with certain costs in the said order mentioned, and which costs have been taxed and allowed by G. H., Esquire, one of the Taxing Masters of our said court, at the sum of £ , as appears by the certificate of the said Master, dated the r day of , and that of the goods and chattels of the said C. D. in your bailiwick, you further cause to be made the said sum of £ , together with interest thereon at the rate aforesaid, from, the day of— {&), and that you have that money and interest before us in our said court, immediately after the exe- cution hereof, to be paid to the said A. B., in pursuance of the said decree [or, order, as the case may be]. And that you do all such things as by the statute passed in the second year of our reign you are authorised and required (a) The day mentioned in the order. (6) The date of the Masters certificate of taxation ; or, if that were prior to the 1st October, 1838, Bay, " from the 1st day of October, 1838." FORMS OF WRITS OF FIERI FACIAS. 215 to do in this behalf, and in what manner you shall have executed this our writ, make appear to us in our said court, immediately after the execution thereof. And have there then this writ. Witness, &c. ROMILLY, M. R. No. 176. Form of Indorsement. . By the Court. [The Name, Place of Residence, and Calling of the Party against whom the Writ is issued.] [The Name, 8fc., of the Solicitor issuing the Writ.] Levy £ \the sum mentioned in the order] and interest thereon, from the day of [the day mentioned in the order] also £ [the amount of the costs] and interest thereon from the day of [the date of the taxing master's certificate] together with 21. [add to this 21. the sum paid for the warrant] for this writ, warrant, &c., besides sheriff's poundage, officer's fees, and all other incidental expenses. No. 177. Form of Precipe. In Chancery. -^ Seal a writ of fieri facias directed to the V. > sheriff of , against , of , in the J county of , for not paying the sum of £ [the sum mentioned in the order], and interest thereon from the day of [the day mentioned in the order] and £ costs to . Order dated day of . Taxing Master's certificate dated day of . Tested day of . [Name, Sfc, of the Solicitor issuing the Writ.] 216 FORMS OF WRITS OF FIERI FACIAS. No. 178. Form of Writ of Fieri Facias fob Payment of Costs. On a Decree or Order of the Court of Chancery. Victoria, &c. To the Sheriff of , Greeting. We command you that of the goods and chattels of C. D. in your hailiwick, you cause to be made the sum of £, for certain costs which were lately before us in our High Court of Chancery, in a certain cause \pr, certain causes, as the case may he], wherein A. B. is plaintiff and C. D. is defendant [or in a certain matter there depending, intituled "In the matter of E. F.," as the case may be], by a decree [or, order, as the case may he] of our said court bearing date the day of , decreed {or, ordered, as the case may he] to be paid by the said C. D. to A. B., and which costs have been taxed and allowed by G. H., esquire, one of the Taxing Masters of our said court, at the said sum of £ , as appears by the certificate of the said Master, dated the day of . And that of the goods and chattels of the said C. D. in your bailiwick, you further cause to be made interest on the said sum of £ , at the rate of 4/. per centum per annum from the day of {a), and that you have that money and interest before us in our said court, immediately after the execution hereof, to be paid to the said A. B., in pursuance of the said decree [or, order, as the case may he]. And that you do all such things as by the statute passed in the second year of our reign you are authorised and required to do in this behalf. And in what manner you shall have executed this our writ, make appear to us in our said court, immediately after the execution thereof. And have there then this writ. Witness, &c. KOMILLT, M. K. (a) The date of the Master's certificate ; or, if that were prior to the Ist October, X838, say, "from the 1st day of October, 1838." FOEMS OF WEITS OF FIEEI FACIAS. 217 No. 179. Form of Indorsement. By the Court. [The Name, Place of Residence, and Calling of the Party against whom the Writ is issued.] [The Name, 8fc., of the Solicitor issuing the Writ.] Levy £ [the amount of the costs] and interest thereon from the — ; — day of [the date of the taxing master's certificate], together with 2^. [add to this 21. the sum paid for the warrant] for this writ, warrant, &c., hesides sheriff's poundage, officer's fees, and all other incidental expenses. No. 180, Form of Precipe. In Chancery. Seal a writ of fieri facias directed to the sheriff of , against of , in the county of - - , for not paying the sum of £ costs to . Order dated day of . Taxing Master's certificate, dated day of . Tested day of . } [Name, 8^c., of the Solicitor issuing the Writ.] No. 181. Form of Fieri Facias against a Client for recovery of Balance, ascertained by the Taxing Master, upon the taxation of a Solicitor s till, where the order directing taxation also provides for the recovery by fi.fa. or elegit of the amount found due. Victoria, &c. To the Sheriff of , Greeting. We command you that of the goods and chattels of in your bailiwick, you cause to he made the sum of for balance upon 318 FORMS OF WRITS OF FIERI FACIAS. certain costs which were lately before us in our High Court of Chancery, in a certain matter there depending, intituled "In the matter of , a Solicitor of this Court," by an order of our said court bearing date the day of , ordered to be paid by the said to the said , and which costs have been taxed and allowed by , Esq., one of the Taxing Masters of our said court, at the sum of , which said last-mentioned sum of , after certain deductions made by the said master in pursuance of the said order of our said court, has been reduced to the said first-mentioned sum of , as appears by the certificate of the said master, dated the day of , and that of the goods and chattels of the said , in your bailiwick, you further cause to be made interest on the said first-mentioned sum of , at the rate of 4/. per centum per annum, from the day of [the date of the taadng master's certificate'], and that you have that money and interest before us in our said court immediately after the execution hereof, to be paid to the said , in pursuance of the said order ; and that you do all such things, as by the statute passed in the second year of our reign, you are authorised and required to do in this behalf, and in what manner you shall have executed this our writ, make appear to us in our said court imme- diately after the execution thereof, and have there then this writ. Witness ourself at Westminster, this day of in the year of our reign, ROMILLY, M. R. For the Forms of- Indorsement and Praecipe, applicable to the preceding Form of Writ, see next page. WRIT OF FIEEI FACIAS DE BONIS ECCLESIASTICIS. 219 No. 183. FoEM OF Indoesement. By the Court. [Name, 8fe., of the Party against whom the Writ is issued.] [N^ame, 8fc., of the Solicitor issuing the Writ.] Levy £ [the amount of the balance dm], and interest thereon, from the -^ day of , together with 21. [add to this 21., the mm paid for the warrant] for this writ, war- rant, &c., besides sheriff's poundage, officer's fe"es, and all other incidental expenses. No. 183. FoEM OF Precipe. In Chanceet. In the matter of ,S Seal a writ of fieri facias, a SoUcitor of this C. directed to the sheriff of , °^ ' J against of , in the county of. , for not paying the sum of £ , balance upon certain costs to , pursuant to an order dated , and the Taxing Master's certificate dated . Tested day of . [N'ame, 8fc., of the Solicitor issuing the Writ.] No. 184. Form of Weit of Fieri Facias de Bonis Ecclesiasticis (a). Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To the Eight Reverend Father in God (John), by Divine Permission, Lord Bishop of , Greeting. We com- (o) This writ is obtainable only upon the retnm of the sheriff to a writ of fieri &cia8 or elegit, to the effect that the person against whom such fieri facias or elegit issued is a beneficed clerk without lay property. — See Order 2, 18th July, 1857. 220 WBIT OF FIEKI FACIAS DE BONIS ECCLESIASTICIS. mand you that of the ecclesiastical goods of C. D., clerk in your diocese, you cause to be made £ , which, lately before us in our Court of Chancery, in a certain cause [or, certain causes, as the case may be], wherein A. B. is plain- tiff and C. D. is defendant [or, in a certain matter there depending, intituled " In the matter of E. F." [or as the case may be] by a decree, [or order as the case may be] of our said court, bearing date the day of , was decreed [or ordered as the case may 6eJ, to be paid by the said C. D. to the said A. B., together with interest on the said sum of £ , at the rate of 4/. per centum per annum, from the day of , and have that money, together with such interest as aforesaid, before us in our said court, immediately after the execution hereof, to be rendered to the said A B., for that our sheriff of . returned to us in our said court on [or, " at a day now past"] that the said C. D. had not any goods or chattels or any lay fee in his bailiwick whereof he could cause to be made the said £ and interest aforesaid or any part thereof, and that the said C. D. was a beneficed clerk, to wit rector of the rectory \or, " vicar of the vicarage "] and parish church of , in the said sheriff's county and within your diocese [as in the return] ; and in what manner you shall have executed this our writ make appear to us in our said court, immediately after the execution hereof, and have you there then this writ. Witness ourself at Westminster, the day of , in the year of our Lord . ROMILLY, M. R. Forthe Foms of Indorsement and Precipe, appUcable to the precedmg Form of Writ, see pp. 221 and 222. ■WEIT OF FIERI FACIAS DE BONIS ECCLESIASTICIS. 221 Form of Direction to the Archbishop of a Writ of Fieri Facias de bonis Ecclesiasticis, during the vacancy of a Bishop's See. No. 185. Victoria, &c. [as in the preceding Form.] To the Eight Reverend Father in God , by Divine Providence, Archbishop of Canterbury, Primate of All England and Metropolitan, Greeting. We command you, that of the ecclesiastical goods of C. D., clerk, in the diocese of , which is within the province of Canterbury, as Ordinary of that Church, the Episcopal See of now being vacant, you cause to be made, &c. [conclude as in the preceding Form.'] No. 186. Form of Indorsement. By the Court. [The Name, Place of Residence, and Calling of the Party against ichom the Writ is issued.] [The name, 8fC., of the Solidtor or Party issuing the Writ.] Levy £' [the amount sought to be recovered], and in- terest thereon, from the — — day of - — — [if of money, insert the date of the order directing payment — if of costs, insert the date of the Taxing Master's certificate], together with £, (rt) for this writ, &c., besides officer's fees, and all other incidental expenses of the execution. (o) £2 6». id. 18 allowed for the writ — see Order, 5, 18th July, 1867 ; but to this must be added the som paid for the warrant or other authority issued by the bishop to the officer. 232 FORMS OF -VVEITS OP HABEAS CORPUS. No. 187. Form of Precipe. In Chancery. ■J Seal a writ of fieri facias de bonis ecclesiasticis e;. (- directed to the Bishop [or Archbishop, as the ) case may he], of , against , for not paying the sum of £, [if of costs, sap costs], to . Order dated day of . [If of costs, add, Taxing Master's Certificate filed day of .] Tested day of . \Nam-e, 8fc., of the Solicitor or Party issuing the WritJ] HABEAS CORPUS. No. 188. Form op Writ op Habeas Corpus cum Causis. Victoria, &c. To — — , Greeting. We command you that you do, on , the — — day of - ■ ■ ' , bring before us in our Court of Chancery, wheresoever it shall then be, the body of , by whatsoever name or addition of name he is known or called, who is detained in our said prison, in your custody, together with an account qf the cause or causes of his being taken into and detained in fymtody (a), to perform and abide such order as our said Court shall make in this behalf; and hereof fail not, and bring this writ with you. Witness ourself at Westminster, the day of , in the year of our reign. RoMtLLY, M. R. (o) See otservationB m the directions appended to this form, FORMS OF WRITS OF HABEAS CORPUS. 223 No. 189. Form of Indorsement. By the Lord High Chancellor of Great Britain. At the instance of [the name of the party on whose behalf the order for the habeas was obtained.] \^Naine, 4rc., of the Solicitor or Party issuing the Writ."] No. 190. Form xjf Precipe. In Chancery. Seal a writ of haheas corpus, directed to , I to bring before , on the day of Order dated day of ■ Tested day of . [Name, 8fc., of the Solicitor or Party issuing the Wrif] . No. 191. Form op Writ op Habeas Corpus ad Test. Victoria, &c. To [the Gaoler or Keeper of the Prison in which the party is confined'\ , Greeting. We com- mand you, that you have the body of , detained in our prison under your custody, as it is said, under safe and secure conduct, before , Esquire, one of the examiners of witnesses in our High Court of Chancery [or if before a specially appointed examiner, say, the Examiner specially appointed for the examination of witnesses in our Chancery], at — — , on , the — — day of , by of the clock in the noon of the same day, then and there to testify the truth, according to hig knowledge, in a certain cause depending in our said High Court of Chan- cery, wherein is plaintiff and is defendant, on S24 PEACTIOE AS TO WRITS OF HABEAS CORPUS. the part of , and immediately after the said shall then and there have given his testimony before the said Examiner that you return him, the said , to our said prison under safe and secure conduct, and have there then this writ. Witness ourself at Westminster, the day of , in the year of our reign. ROMILLY, M. E. For Forms of Indorsement and Prsecipe, see Nos. 189 and 190, p. 223. Ordinary Official Requirements. — A writ of habeas corpus must be stamped with a 11. Chancery fee fund stamp, see Schedule 3 to Orders, 30th January 1857. The order for the writ must be produced to the officer at the time the writ is presented for sealing, and a praecipe, must at the same time be left with him. The order for this writ may be obtained upon motion as of course, and such writ never issues except by order. In every case in which a party shall have been brought up to the Court of Chancery by virtue of any writ of habeas duly issued, and by reason of the pressure of other business, or from any other cause, the hearing of the cause or matter in which such party is concerned shall have been postponed to a future day, a new writ of habeas may be issued for such future day, if the Court shall so direct, without payment of any fee. — Order 31st January, 1846. The direction by the Court, referred to in the preceding paragraph, is signified by a note or memorandum indorsed upon the order under which the first habeas was issued, in the following form : — No. 193. " Let another habeas issue, returnable on the day of , at o'clock in the noon. A. B. Registrar." day of . The writ of habeas Corpus should be directed to the officer who has the custody of the party who is to be brought up thereon. FORM OF WRIT OF INJUNCTION. 225 If the writ is directed otherwise than to a sheriiF or keeper of a prison, the words printed in italics, in the form, should be omitted. Such words should likewise be omitted in any case where the account of the cause of detention of the party is not immediately connected with the purpose for which he is to be brought up on the habeas. And usually in cases where the party to be brought up is an infant, such words are not to be inserted. But in a case where an infant, detained from its parent, was ordered to be brought by habeas, the habeas contained those words. — Re North.— Order made, 17th December, 18d6. Return to be Inserted in a Writ of Haheas Corpus. The writ must be made retui-nable on a day certain. For the purpose of bringing to the bar of the court a defendant taken upon attachment for want of answer, the habeas is generally made returnable on a motion day, whether in or out of term. In some of these cases, however, the motion day must not be regarded — for instance, where the plaintiff is limited in time for bringing to the bar of the court a defendant, as against whom he is seeking to take the bill pro confesso, for want of answer. In all other cases, it is desirable that the return day should be mentioned in the order, and if so mentioned, such return day must be inserted in the writ. When a writ of habeas corpus has been duly executed, and returned by the sheriff or other officer to whom it was directed, it should be filed at the Record and Writ Clerk's office. — Old- field V. Cobbett, 2 Phill. 289. FORM OF WRIT OF INJUNCTION. No. 193. Victoria, by the Grace of God, kc. To [and his servants, agents, and workmen, if so stated in the order]. Greeting. Whereas [recite the order in the past tense, observ- ing, houcrer, the following rules {a), viz. : — (a) And observing, too, that wherever tie party restrained is named, the word "you" niuBt le inlioduced; fur inatancc, instead of saying, "And it was ordered 226 FOEM OF WEIT OF INJUNCTION. 1. If the order commences thus .•—"Upon motion this day, made into this court by Mr. , of counsel for the plaintiff," say, " Greeting. Whereas upon motion made unto us in our High Court of Chancery, before the Eight Honourable the Master of the Rolls {or, as the case may be], on the day of [the date of the order], by Mr. , of counsel for the plaintiff in a cause wherein is plaintiff, and you the said are defendant" [the title should be taken from the order, then recite the rest of the order in the past tense, observing the directions in note {a), p. 235]. 2. If the order commences thus : — " "Whereas Mr. . of counsel for the plaintiff, this day moved and offered divers reasons unto this Court, that," &c., say " Greeting. Whereas on the day of [the date of the order,} Mr. , of counsel for the plaintiff, in a cause wherein is plaintiff, and you the said are defendant [the title should be taken from the order], moved and offered divers reasons unto us, in our High Court of Chancery, before the Right Honourable the Master of the Rolls [or, as the case may be], that," &c. [then rente, in the past tense, the rest of the order, obseriing the directions in note {a),p. 225]. 3. If the injunction is awarded under a decree, or decre- tal order, the recital should be as follows, viz : — " Greeting. Whereas by a certain decree [or, order, as the case may be], made by us in our High Court of Chancery, on the that the said should he restrained," &c., say, "And it was ordered that yon, the said , shonld he restrained," &c. And instead of the words, "this Conrt," say, " our said Conrt." If the order applies to other matters besides the injnnctinn, so nmch only of the mandatory part of the order as relates to the injunction need be recited, prefixing, however, the following words : — "It was (amongst other things) ordered," &c. ; or, "onr said Conrt did (amongst other things) order," &c. If the injunction is awarded against hnsband and wife, in the direction of the writ, say, " To and , his wife;" and in all other parts, instead of saying, " Ton, the said John Jones and Mary, your wife," say, " Yon, the said John Jones and Mary Jones ." If judgment was delivered and the injunction awarded on a day subsequent to the day on which the motion was made, instead of the words, "the said Court did order that an injunction," &c., say, "our said Court did on the day of , order that an injunction," &c. FORM OF WEIT OF INJUNCTION. 227 day of [the date of the decree or order], in a cause there depending, wherein is plaintiff, and you the said are defendant, it was (amongst other things) ordered, that," &c. [recite, in the past tense, so much of the mandator/ part of the decree or order, as relates to the injunction, observing the directions in note {a), p. 225.] We, therefore, (a) in consideration of the premises, do hereby strictly enjoin and restrain (5), you the said , [your servants, agents, and workmen, if so stated in the order] under the jienalty of £, [insert any nominal aynount, usually double the amount or value of the property in question in the suif] to be levied upon your [and each and every of your], lands, goods, and chattels to our use from [here repeat, in the present tense, the man- datory part of the order relating to the injunction, and observing the directions in note {a), p. 225]. "Witness our- self, at "Westminster, the day of [the day on which the tcrit is sealed], m. the year of our reign. EOMILLT, M. E. No. 194. FoEM OF Indoesement. By the Lord High Chancellor of Great Britain. Injunction, ROMILLT, M. R. [Nam£, 8fc., of the Solicitor or Party issuing the Writ.] {a) If the injnnctioii ia ordered conditionally, for instance, npon payment of a snm of money into court, introduce immediately before the words "We, therefore," &o., the following statement : — ■" And, whereas, the said sum of hath been duly paid to the credit of the Accountant-Greneral of our said Court, as by the certificate of the said Accountant-General appears." (6) If the vnjwnction is a perpetual imfimction, say, ' ' do hereby from henceforth and for ever, strictly enjoin and restrain," &c. Q 2 228 PEEPAEING AND SEALING WEITS OF rNJUNCTION. DOCQUET OE PEiECIPE. In the case of a writ of injunction, the docquet referred to in the following observations answers the purpose of a praecipe. Preparing and Sealing Writ of tnjvmction. The writ of injunction must be written on parchment, in words at length, and a 1/. Chancery fee fund stamp must be affixed. A docquet (that is, a fair copy of the writ), (a) written on brief paper, must be left with the officer at the time the writ is presented for sealing ; and the order awarding the injunction, or an office copy thereof, must also, at the same time, be produced. The order is usually left with the docquet; but if the order relates to other matters besides the injunction, or, if the solicitor desires it, the order will be returned to him, a memo- randum, in the following form, being indorsed on the docquet, and signed by or for the solicitor : Received back the order, day of . A. B. The writ, when issued, is sealed with the seal of the Record and Writ Clerks' office, and signed by one of the Clerks of Records and Writs. Serrme of Writ of Injunction. Any copy of the writ for service should be written on paper, in words at length, and should comprise the signature of the Clerk of Records and Writs, and be indorsed, in like manner as the original. The service of the copy must be personal, and the original wnt, as duly issued, should be produced to the party at the time of service. A party committing a breach of an injunction after due service is to be proceeded against, not by attachment but by order for committal. And even before service of the writ, a (o) The docquet usnaUy commences with the words, "TheOueen and so forth." and tennmates with the words '■ Witness the Queenat West^ter"" &c It mTy, however, consist of a fair copy of the writ as above suggested . «='««•" ^^^ PRACTICE AS TO WRITS OF INJUNCTION. 229 party restrained by injunction is liable to committal, if, after any kind of notice of the injunction, he commits a breach of it. See authorities cited in Daniell's Ch. Pr. IJrd ed., 1857. vol. ii. pp. 1263 to 1266. So that, where an injunction is obtained exparte, and upon a great emergency, it is desirable that notice thereof should at once be given to the party restrained, and also to any other party likely to commit a breach of it ; and, in such case, the party obtaining the injunction, may, with less haste, prepare and seal and serve the writ. Due diligence must, however, be used in thus serving the writ. Common injunctions, as they are termed, or, in other words, injunctions to stay proceedings at law, are now usually obtained upon application to the Court, in like manner as special injunctions, and the form of the writ is governed by the same rules. Where an order merely restrains a party from doing a certain act, and does not award an injunction, a writ of injunction does not issue. The order is termed a " restraining order," and a copy of the order itself should be served. And in cases where a plaintiff has elected to proceed in equity, and the uSual order restraining the proceedings at law has been obtained, a writ of injunction does not issue, the order itself, when served upon the parties restrained thereby, being sufficient. Nor is it usual to issue a second writ in cases where an injunction is, at the hearing of the cause, made perpetual. The writ may, however, be issued and served. No. 195. FORM OF WRIT OF NE EXEAT REGNO. • Victoria, &c. To the Sheriff of , Greeting. Whereas it is represented unto us in our Court of Chancery on the part of , complainant, against , defendant, amongst other things, that he the said defendant is greatly indebted to the said complainant, and designs quickly to go into parts beyond the seas, as by oath made on that behalf appears, which tends to the great prejudice and damage of the said complainant ; therefore, in order to 230 FOEM OF A WMT OF NE EXEAT REGNO. prevent his injustice, we do hereby command you, that yon do without delay cause the said personally to come before you, and give sufl&cient bail or security, in the sum of £ , ifl) that he the said wiU not go or attempt to go into parts beyond the seas, without leave of our said Court ; and in case the said shall refuse to give such bail or security, then you are to commit him the said to our next prison, there to be kept in safe custody, until he shall do it of his own accord : and when you shall have taken such security, you are forthwith to make and return a certificate thereof to our said Court of Chancery, dis- tinctly and plainly under your seal, together with this writ. Witness ourself at Westminster, the day of , in the year of our reign. KOMILLT, M. K. No. 196. Form of Indorsement. By the Lord High Chancellor of Great Britain. At the instance of the within-named [the Plaintiff or Forty applying for the Writ]. Take security in the sum of \the sum mentioned in the order, and set it forth in words at length], {Name, 8fc., of the Solicitor or Party issuing the Writ.] No. 197. Form of Precipe. "^ Seal a writ of ne exeat regno directed to tl V. ^ sheriff of against . Security in the su ) of . Order dated day of . Tested day of . [Name, 8fc., of the Solicitor or Party issuing the Writ.] (o) The amount is always set forth in the order awarding the writ. NE EXEAT REGNO ^INTO A COUNTY PALATINE. 231 No. 198. FORM OF WRIT OF NE EXEAT REGNO. Issued into a County Palatine. ViCTOEIA, &C. To our Chancellor of our County Palatine of , or his deputy there, Greeting. Whereas it is represented unto us in our Court of Chan- cery on the part of , complainant, against , defen- dant, amongst other things, that he the said defendant is greatly indebted to the said complainant, and designs quickly to go into parts beyond the seas, as by oath made on that behalf appears, which tends to the "great prejudice and damage of the said complainant, therefore in order to prevent his injustice, we do hereby command you that by our writ under your seal of our aforesaid county duly issued, you command the sheriff of our aforesaid county without delay to cause the said personally to come before him, and give sufficient bail or security, in the sum of £ , that he, the said , .will not go or attempt to go into parts beyond the seas without leave of our said Court ; and in case the said shall refuse to give such bail or security, the said sheriff is then to com- mit him the said to our next prison, there to be kept in safe custody until he shall do it of his own accord. And when the said sheriff shall have taken such security, you are forthwith to make and return a certificate thereof to our said Court of Chancery, distinctly and plainly, under your seal, together with this writ. Witness ourself at West- minster, the s day of , in the year of our reign. ROMILLY, M. R. 232 PEEPAEING AND SEALING WEITS OF NE EXEAT EEGNO. No. 199. FoEM OF Indoesement. By the Lord High Chancellor of Great Britain. At the instance of the within-named [the Plaintiff, or Party applying for the Writ]. Take security in the sum of £ [the sum mentioned in the order, and set it forth in words at length] . [N^ame, 8fc., of the Solicitor or Party issuing the Writ.] No. 200. FoEM OF PsiEClPE. In Chanceey. Seal a writ of ne exeat regno directed to the Chancellor of the County Palatine of , against . Security in the sum of £ . Order dated day of . Tested day of . \_Name, ^c, of the Solicitor or Party issuing the Writ.'] } A writ of ne exeat regno must be stamped with a 11. Chancery fee fund stamp. The order for the writ may he obtained exparte, upon motion as of course, supported by an affidavit (which is usually made by the plaintiff) swearing positively as to the debt, and the inten- tion of the party to go abroad. The order must be produced to the officer at the time the writ is presented for sealing, and a praecipe, in the form before set forth, must be left with him. Usually a bill is filed, praying for a writ of ne exeat regno, — and a written copy may be filed.— 15 & 16 Vict. cap. 86, s. 6. But under peculiar circumstances the writ has been granted although not prayed for by the bill. — See authorities in Smith's Ch. Pr. 6th ed. p. 759; also, Daniell's Ch. Pr. 3rd ed. 1857, vol. ii., p. 1286. A writ of ne exeat regno has also been granted in a case where the suit was commenced by an administration summons. Re Greasley, deceased; Cleaver v. Younger. — Order made by His Honor Vice- Chancellor Kindersley, 27th December, 1852. FORM OF A COMMISSION OF PABTITION. 233 No. 201. FORM OF COIMMISSION OF PARTITION. Victoria, &c. To [insert the names of not less than four Commis- sioners], {a) Greeting. Whereas, by a certain decree [or, order] made by us in our High Court of Chancery on the — — day of , in a cause wherein is plaintiff, and is defendant (6). It was (amongst other things) ordered [here insert so much of tJie mandatory part of the order as directs the issuing of the com- mission, the partition, and the examination of witnesses] . Know ye, therefore, that we in confidence of your prudence and fidelity have appointed you, and by these presents in pur- suance of the said decree do give unto you, any two or more of 3'ou, full power and authority, and hereby command you, that you, or any two or more of you, do assemble and meet together at certain proper and convenient times and places, by you, or any two or more of you, to be for that purpose appointed, and that you do from thence go to, enter upon, walk over, and survey the said [estate called the estate, as it may be named in the decree] in the said decree, and in the pleadings in the said cause more particularly men- tioned, and that you do thereby, and by such other lawful ways and means as you shall think proper, and according to the best of your skill, knowledge, and judgment, make a fair partition, division, and allotment thereof, and sepa- rate and divide the same [here again insert the direction from the decree as to hoio many parts the estate is to he divided into, and to whom such parts or shares are to be allotted], according to the true intent and meaning of the said in part recited decree, and for the better making such partition, division, and allotment, we do hereby also authorise and empower you, or any two or more of you, diligently to examine all such (a) Not less than two, bat any greater number, of the eommissioners may act. (A) Insert the title of the cause from the order or decree. 234 FORM OF A COMMISSION OF PARTITION. witnesses as you shall see occasion [or, upon such inter- rogatories in writing or otherwise, as you shall deem neces- sary] (a) ; and therefore we command you, that on certain days, and at certain places to be appointed by you for that purpose, you do cause the said witnesses to come before you, and then and there examine each of them on their respective corporal oaths, first taken before you, or any two or more of you, upon the Holy Evangelists, or in such other solemn manner as is or may be authorised by law, and that you do take their examinations, and reduce them into writing on parchment, and when you shall have so done, you, or any two or more of you, are to make a certi- ficate of such partition, division, and allotment^ and aU the proceedings in the premises, and send them, together with this writ, and the depositions of such witnesses (if any) as shall be examined by you touching the premises, unto us in our said Chancery (vsothout delay, if no return day is named in the decree), wheresoever it shall then be, under the hands and seals of you or any two or more of you, distinctly and plainly set. Witness ourself at West- minster, the day of , in the year of our reign. EOMIXLY, M.R. No. 202. Form of Indorsement. By Order of Court. Commission of Partition. [Name, Sfc, of the Solicitor or Party issuing the Writ.] (a) The words within the brackets should only be inserted in cases where the order directs examination npon interrogatories. PEEPAEING AND SEALING WRITS OF PARTITION. 235 No. 203. Form of Pejeoipe. In Chancery. Seal a commission of partition, directed to [here insert the names of the commissioners]. Re- turnable without delay [or, as the case may be.] Order dated day of . Tested day of . \_I{ame, 8fc., of the Solicitor or Party issuing the Writ.'] Pr^aring Writ of Partition. A commission of partition must be engrossed on parchment, and stamped with a 1^. Chancery fee fund stamp. The order directing the commission to issue must be pro- duced to the officer at the time the writ is presented for sealing, and a praecipe, in the foregoing form, must at the same time be left with him. The names of the commissioners are to be agreed upon between the parties, who join and strike commissioners' names. Each party may name four, but two only of each set of four names can be retained, except where the party issuing the writ is left to direct it to his own commissionersj in which case the names of the four nominated by him may be inserted. Where, however, to save expense, it is determined that two commissioners only shall be named in the commission, two other fictitious names, — for instance, John Doe and Richard Roe — must be added to the names of such two commissioners, so as that the language of the form of the writ may be pre- served. If the parties cannot agree as to who shall act as commis- sioners, the Judge at chambers will determine it — a summons being taken out for such purpose. Sometimes the order or decree directs an inquiry, which it may be necessary to prosecute before the writ can properly be issued. In such cases, the result of such inquiry, as it ap- pears in the chief clerk's certificate, must be embodied in the writ ; the statement of such result being, usually, placed before the words " Know ye therefore," &c., and other parts of the writ being varied accordingly. 236 EETUEN TO A COMMISSION OF PARTITION. No. 204. FORM OF COMMISSIONERS' RETURN («). In Chanceey. {Full Title of the Cause.] To the Right Honourable the Lord High Chancellor of Great Britain. We whose names are hereunto subscribed, being of the commissioners named in the commission hereunto annexed, do humbly certify unto your lordship, that we did on the day of , in pursuance of the said commission, assemble and meet together at , in the county of , and that we did from thence go to, &c. \Jbllou>ing the language of the writ, but being more regardful of gitiing a clear and accurate statement of the course of pro- ceeding actually pursued} ; and we find that the said estate, &c., consists of the following particulars, viz : [here set forth a full description of the property (b)], and which for the sake of more complete description, are also delineated in the map or plan hereunto annexed, marked B. That we have, according to the best of our skill, knowledge, and judgment, made a fair partition, division, and allotment of the said hereditaments and premises, and have divided the same into equal parts, and allotted the same to the parties in such proportions, manner, and form as by the said commission is directed. That one of such equal parts consists of the following particulars, viz. [here set forth such particulars'] (c); and which hei^editaments and premises last mentioned (a) There is no prescribed form of Return to a, commission of partition. The Eetnm is, in fact, in the nature of a report ; and, as a rule, it should follow, as nearly as naj be, the language of the commission. The form here given will, perhaps, serve as a guide to the practitioner in most cases. (6) // it U thought proper to annex a schedule showing the particvlara, descrip- tions, and quantities of the several parts of the estate, say: — " Consists of the par- ticulars mentioned and set forth in the schedule marked A. hereunto annexed." (c) Or, if a schedvle of the particulars of which the estate consists is annexed, the following form May beiised, viz.: — "That one of such equal parts, consists of, and comprises, the several particulars mentioned and set forth in the first part of the said schedule marked A. hereunto annexed." EETUEN TO A COMMISSION OF PARTITION. 237 or referred to, are in the said map or plan coloured red. That we have allotted, and do herehj' allot to , as and for his equal part, the said hereditaments and premises lastly hereinhefore mentioned or referred to. That one other of such equal parts consists of and comprises the following particulars, viz. [here set forth such particulars'] («) ; and which hereditaments and premises last mentioned or referred to, are in the said map or plan coloured green. That we have allotted and do hereby allot to. , as and for his equal part, the said hereditaments and premises lastly herein- before mentioned or referred to. [And in like manner in respect of any other parts or shares to he allotted.'] In testimony whereof we have hereunto set our hands and seals, this day of . ^— , (l.s.) , (l.s.) , (l.s.) , (l.s.) Commissioners. If witnesses were examined, the following statement should precede the statement commencing " And we find that the said estate, &c., consists of," &c., viz. : — And we have examined upon oath the following wit- nesses, that is to say [set forth the names of the witnesses. If any of the parties to the suit were examined as mtnesses, their names only need he stated ; in other cases, the addresses of the mtnesses should also he set forth], inh.o&& examinations we have taken and reduced into writing oh parchment, and we have annexed such examinations to this our return." The form of heading to the depositions of the witnesses will be found under title " Evidence." (a) Or, if a schedule of tfie particulars of the estate is annexed, "That one other of such equal parts consists of and comprises the several particulars mentioned and set forth in the second part of the said schedule marked A. hereunto annexed." 238 COMMISSION OF PARTITION — KETURNING THE COMMISSION. In a recent case, Sanbury v. Hvssey, — 1850, H, No. 101, — Eeturn filed 24th April, 1857, — some of the parties desired the commissioners to abstain from allotting certain parts of the property, and such desire was referred to by the commissioners in tbeir return, immediately before the statement as to the allotment of the several parts or shares of the property, thus : — " And we have, by the desire of , abstained from divid- ing and allotting , (such desire being testified by the signatures of the said parties to the memorandum hereon indorsed)." The memorandum referred to was written in the margin, at the side of the preceding statement, and was as follows, viz. : — " Memorandum. — That we, the within-named , do desire the within-named commissioners to abstain from dividing and allotting the . As witness our hands, this day of . "A. B. " C. D." Retwrning the Commission. The commissioners are not limited as to time in returning the writ. They should, however, execute it without delay, and return it under seal. Their signatures need not be attested. When the commission has been executed, the commissioners should sign not only their return, but also each schedule or plan annexed thereto. They should also indorse upon the writ itself the following words : " The execution of this writ appears in the schedule \or, schedules, if the return conyprises more than one skin of parchment] hereunto annexed. Commissioners. The commissioners should annex the several proceedings together, seal them up, and forward them, thus sealed, through any medium they please to the Record and Writ Clerks' office, The following is the order in which the several proceedings should be annexed : — First the writ, next the commissioners' return, then any plans which it may have been necessary to draw Out, and lastly the depositions of witnesses (if any). As soon as the return is filed, any party to the cause may have an office copy thereof. PRACTICE AS TO COMMISSIONS OF SEQUESTRATION. 239 A commission to distinguisli and divide lands is similar in form to a commission of partition, and must follow the language of the order in like manner. COMMISSION OF SEQUESTEATION. Preliminary Observations. In what Cases a Commission of Sequestration may he Issued. A commission of sequestration may be issued either for want of answer, or for non-performance of an order or decree, or for non-payment of costs. A special order of the Court is in all cases necessary, and such order may be obtained upon motion as of course. For Want of Answer . — ^An order for a sequestration for want of answer may be obtained upon the sheriff's return, " non est inventus," to the attachment for want of answer ; or upon the like return by the serjeant-at-arms. — Order 9, 26th August, 1841. Upon moving for the order, the return, or an office copy of the return, of the sheriff, or of the serjeant-at-arms, should be produced in Court. For Breach of an Order or Decree. — ^^An order for a sequestra- tion for breach of an order or decree may be obtained upon the sheriff's return, that the party in contempt has been taken or detained under the attachment for breach of the order or decree; or upon the sheriff's return, "non est inventus" to any such attachment. — Order 11, 26th August, 1841; as amended 11th April, 1842, and 18th July, 1857. See this order folly set forth in the Preliminary Note to " Writs." Instead of applying for a sequestration upon the sheriff's return " non est inventus," the party prosecuting tlie contempt may apply for an order for the serjeant-at-arms. — Order 11, 26th August, 1841, as amended 11th April, 1842, and 18th July, 1857. If the serjeant-at-arms returns " non est inven- tus," an order for sequestration may then be obtained. An order for a writ of sequestration may be obtained against a beneficed clerk. In the case from which Form No. 208 is taken, the party proceeded agaiist was one of three persons who were ordered to transfer a sum of money into the name of the Accountant-General, and to pay another sum into the Bank. An attachment was sealed 16th July, 1845; the sheriff 240 PEACTICE AS TO COMMISSIONS OF SEQUESTRATION. returned " non est inventus," and thereupon an order for sequestration was obtained. — 2nd August, 1845. To this sequestration the commissioners returned to the effect that the party in contempt was a beneficed clerk, without lay property, and, thereupon, application was made to the Court, by motion, for an order for a writ of sequestrari facias de bonis eccle- siasticis, to be directed to the bishop. The order for such writ was made on the 7 th Octol5er, 1845. It will be seen that the writ of sequestrari facias de bonis ecclesiasticis, here referred to, is obtainable upon the return to a previous seqitestration, to the effect that the person against , whom such writ of sequestration issued is a beneficed clerk without lay property. But a writ of sequestrari facias may also be issued upon a return by the sheriff to a writ of fieri fcudas or elegit, to the effect that the person against whom such fieri facias or elegit issued, is a beneficed clerk, without lay property. See Order 2, 18th July, 1857. An order for a sequestration may also be obtained to enforce payment of money directed to be paid by an order made by the ecclesiastical court. But the order pronounced in the ecclesiastical court must first be inroUed in the rolls of the Court of Chancery, in the manner prescribed by the Act, 2 & 3 Will. 4, c. 93, sec. 2. The course of proceeding is set forth in the observations appended to the form of docquet of inrolment of an order made by the ecclesiastical court, for which see " Inrolments." For non-payment of Costs. — To obtain an order for a writ of sequestration against a party taken under an attachment for non-payment of costs, such party must be brought up to the bar of the court by habeas, and turned over to the Queen's Prison. Preparation of the Writ. As to cases to which the Forms Nos. 205 and 208, apply, the writ is, to a great extent, a recital of the order for the seques- tration. The form must, therefore, be varied to meet the cii'- cumstances of each particular case. The persons named as commissioners need not be pro- fessional persons ; nevertheless, in the execution of the writ, they are regarded as officers of the court, and are responsible for their acts, and liable to committal for breach of duty. A commission of sequestration should be engrossed on parchment, and a 1^. Chancery fee fund stamp must be affixed thereto. The order for the writ must be produced to the officer FOBM or COMMISSION OF SEQUESTBATION. 241 at the time the writ is presented for sealing, and a praecipe must also, at the same time, he left with him. The amount of fee payable to the commissioners is regulated by the nature and value of the property. As to the power of sequestrators to seize books and papers, &c., where the contempt is for not delivering books, &c., see Eule 16, of sec. 15 of the Act, 1 Will. 4, c. 36, fully set forth in the observations upon " Returns to Writs." FORM OF COMMISSION OF SEQUESTRATION. No. 805. For want of Answer, or for Non-perfonnance of an Order or Decree, or for Non-payment of Costs. Victoria, &c.. To [here insert the names of not less than four Commissioners] , Greeting. Whereas, upon motion made unto us in our Court of Chancery, on the day of , by Mr. , of counsel for the plaintiff, in a cause wherein is plaintiff, and is defendant, it was alleged \recite the whole of the order for the sequestration in the past tense {a) ]. Know ye therefore, that we, in confidence of your prudence and fidelity, have given, and by these pre- sents do give unto you, or any three or two of you, full power and authority to enter upon all the messuages, lands, tenements, and real estate whatsoever of the said , and to collect, receive, and sequester into your hands not only all the rents and profits of his said messuages, lands, tenements, and real estate, but also all his goods, chattels, and personal estate whatsoever; and therefore we command you, any three or two of you, that you do at certain proper and convenient days and hours goto and enter upon all the messuages, lands, tenements, and real estate of the said , and that you do collect, take, and get into your hands not only the rents and profits of his said real estate, but also all his goods, chattels, and personal estate, and detain and keep the same under (a) Wherever the term "this Court" occurs, say "our said Court;" and instead of saying "it was ordered," say "our said Court djd order," 242 SEQUESTBAEI FAOIAS DE BONIS ECCLESIASTICIS. sequestration in your hands until the said shall fully answer the plaintiflf's hill [or, pay to the said plaintiff the said sum of , as the case may be], clear his con- tempt, and our said Court make other order to the. contrary. Witness, &c. EoMILIiT, M. E. No. 206. Form of Indoesehiext. In Chancebv. Commission of Sequestration. [Name, 8fc., of the Solicitor or Party issuing the Writ.] No. 207. FOBM OF PE^iCIPE. In Chancebt. Seal a commission of sequestration against 1} r. y for not answering [or, for not paying, &c., as the case may be] at the suit of , complainant, directed to [here insert the names of the commis- sioners'] commissioners. Order dated day of . Tested day of . [N^ame, 8fc., of the Solicitor or Party issuing the Writ.'] No. 208. FoEM OF Sequestraei Facias de Bonis Ecclesiasticis. Against a Beneficed Clerk, — after Ordinary Sequestration. ViCTOEIA, &C. To the Eight Eeverend Father in God, hy Divine per- mission Lord Bishop of , Greeting. Whereas hy an order made in our Court of Chancery on the day SEQUESTRAKI FACIAS DE BONIS ECCLESIASTICIS. 243 — , in a certain cause wherein is plaintiff, and — is defendant, it was ordered [here recite, in the past tense, the whole of the mandatory part of the order under which the first commission of sequestration teas isstied'] . And whereas, in pursuance of the said order of our said Court, we did on the day of , by a commission issued out of and under the seal of our said Court, give full power and authority to our commissioners [naming them], or any two of them, to enter upon, &c. [reciting in the past tense the mandatory part of the writ]. And whereas it appears by the return of and , two of our said commis- sioners of sequestration, dated the day of , that the said has not any messuages, lands, tenements, or real estate, the rents or profits whereof, or any goods, chattels, or personal estate, which they can detain and sequester as commanded by our said commission, and that the said is a beneficed clerk, to wit, rector of the rectories and parish churches of and , in the county of , within your diocese, and he persisting in his contempt. It was by another order of our said Court, made in the said cause on the day of , ordered that a commission of sequestration should issue directed to you the said Lord Bishop of , commanding you to enter into, &c. [recite, in the past tense, the mandatory part of the order for this writ of sequestration^. Now therefore we command you that you enter into the said rectories and parish churches of and , in the said county of , and take and sequester the same into your posses- sion, and also all the rents, tithes, oblations, obventions, fruits, issues, and profits thereof, and other ecclesiastical goods, in your diocese of the said , and that you hold the same in your possession until the said shall pay the said sum of, &c. [as in the order], clear his contempt, and our said Court make other order to the contrary. "Witness, &c. EOMILLY, M. R. For Forms of Indorsement and Pe^cipe, see p. 342. B 2 244 SEQUEStEAEI FACIAS DE BONIS ECCLESIASTICIS. No. 209. Form of Sequesteaei Facias de Bonis Ecclesiasticis. Against a Beneficed Clerk, — after M. Fa. or Elegit. ViCTOEIA, &c. To the Right Reverend Father in God (John), by Divine permission Lord Bishop of , Greeting. Whereas we lately commanded our sheriff of , that he should omit not by reason of any liberty of his county, but that he should enter the same, and cause [to be made, if after the return to a fieri facias, o»",-delivered, if after the return to an elegit, 8fc., and in either case recite from the former writ}. And whereupon our said sheriff of , on [or, at a day past], returned to us in our said Court of Chancery that the said C. D. was a beneficed clerk, that is to say, rector of the rectory \pr, vicar of the vicarage] and parish church of , in the county of , and which said rectory and parish church were within your diocese, and that he had not any goods or chattels, or any lay fee in his bailiwick [here follow the words of the sheriff's return]. Therefore we command you, that you enter into the said rectory [or, vicarage] and parish church of , and take and sequester the same into your possession, and that you hold the same in your possession until you shall have levied the said £ , and interest aforesaid, of the rents, tithes, rent charges in lieu of tithes, oblations, obventions, fruits, issues, and profits thereof, and other ecclesiastical goods in your diocese, of and belonging to the said rectory and parish church of , and to the said C. D. as rector thereof, to be rendered to the said A. B., and what you shall do therein make appear to us in our said Court immediately after the execution hereof, and have you there then this writ. Witness ourself at West- minster, the day of , in the year of our Lord ROMILLY, M. R. SEQUESTRAEI FACIAS DE BONIS ECCLESIASTICIS. 243 No. 810. Form of Indorsement. By the Court. [The name, place of residence, and calling of the party against whom the Writ is issued]. [Name, 8fc., of the Solicitor or Party issuing the Writ.] Levy £ [the amount sought to be recovered], and interest thereon from the day of [If of m,oney, insert the date of the order directing payment : if of costs, insert the date of the taxing master's certificate'^, together with %l. 6s. 8rf. for this writ, besides the expenses of the execu- tion and sequestration. No. 211. Form op Precipe. In Chancery. Seal a writ of sequestrari facias directed to [insert the names of the commissioners], against , 3 for not paying the sum of £ [if of costs, say, costs], to , Order dated day of . [If of costs, add. Taxing Master's Certificate, filed day of .] Tested day of . [Name, 8fc., of the Solicitor or Party issuing the Writ.] 2i6 PEACTICE AS TO WEITS OF SUBPOENA. WEITS OF SUBPCENA. Pkeuminaey Obseevations. Forms to be tised. — The several writs of subpoena issuing out of the Court of Chancery, are to be in the terms mentioned at the foot of the Orders, 8th May, 1845(a), or as near as may be, with such alterations and variations as circumstances may reqiiire. — Order 24, 8th May, 1845. Prcedpe. — A praecipe La the usual fonn, and containing further the particulars hereinafter mentioned [as to the name and residence of the party issuing the writ], is to be delivered and filed at the Eecord and Writ Clerks' ofl&ce ; and on a sub- poena for costs being sealed, the certificate or report \pf the Tasdng Master'] is to be produced to the officer sealing the writ as his authority for sealing it. — Order 3, 21st December, 1833. Name, 8(c., of Solicitor. — The name or firm, and the place of business or residence, of the solicitor issuing a subpoena, is to be indorsed thereon ; and where such solicitor is agent only, then there is to be further indorsed thereon, the name or firm and place of business or residence of the principal soU- citor. — Orders, 21st December, 1833. See also Orders 17 and 20, 26th October, 1842. Number of Names to be inserted. — Every subpoena, other than a subpoena duces tecum, is to contain three names, where necessary or required. — Order 5, 21st December, 1833. No more than three names are to be included in one subpoena duces tecum (6), and the party suing out the same is to be at liberty to sue out a subpoena for each person if it shall be deemed necessary or desirable. — Order 6, 21st December, 1833. ReseoKng. — ^In the interval between the suing out and service of any subpoena, the party suing out the same may correct any error in the names of parties or witnesses, and may have the writ resealed, upon leaving a corrected praecipe of such sub- poena, marked "altered and resealed," and signed with the name and address of the solicitor suing out the same. — Order 25, 8th May, 1845. A subpoena to appear and answer cannot, however, be resealed (a) The form of snhpcena to show cause against a decree is not among the forms appended to the Orders, 8th May, 1845, but to the Oiders, 21st December, 1833. (6) Husband and vife are " in a snbpcena of this nature considered as two distinct persons, and the christian and surname of the wife must be inserted accordingly." — See authority cited in Darnell's Ch. Pr., 3rd ed., 1857, toL 1. p. 729. FOEMS OF WRITS OF SUBPCENA TO APPEAE, ETC. 247 if twelve weeks from the teste of the writ have elapsed. The writ is then of no validity, and a new writ must therefore be issued. Subpcena to appear. — Subpoenas to appear, or to appear and answer, which are served within the jurisdiction of the Court, are to be made returnable within eight days after the service thereof. — Order 22, 8th May, 1845. Subpoenas to appear, or to appear and answer, which are served out of the jurisdiction of the Court, are to be made returnable at such time after the service thereof as the Court, by special order, may direct ; and if an answer be required, each such subpoena is to specify the time after service within which the defendant is required to answer. — Order 23, 8th May, 1845. Service. — The service of a subpoena is to be effected by deli- vering a copy of the writ and of the indorsement thereon, and at the same time producing the original writ. And in all cases where a subpoena might heretofore have been served by leaving the body thereof at the party's dwelling-house, or otherwise than personally, it is sufficient to leave a copy of such subpoena in the same manner, producing the original writ to the person with whom such copy shall be so left. — Order 4, 21st December, 1833. Service upon a defendant's solicitor of a subpoena to answer an amended bill is to be deemed good service upon the party. —Order 26, 8th May, 1845. The service of any subpoena, except a subpoena for costs, is to be of no validity if not made within twelve weeks after the teste of the writ.— Article 1, Order 16, 8th May, 1845. Forms of Weits of Subpcenas to Appear, &c. No. 21S. To Appear and Answer, or to Appear only, when the Writ is to be Served on a Defendant [or, Defendants] icithin the Jurisdiction. Victoria, &c. To , Greeting. We command you [and every of you, where more than one defendant], that within eight days after the service of this writ on you, exclusive of the day of such service, laying all other matters and excuses aside, you do cause an 248 FOEMS OF WEITS OF SUBPCENA TO APPEAR, ETC. appearance to be entered for you in oiu* High Court of Chancery'to a bill [or, as the case may he, an information, or, amended bill, or, information, bill of revivor, bill of revivor and supplement, or, supplemental bill], filed against you by [and others, or, another], and that you do answer concerning such things as shall then and there be alleged against you, and observe what our said Court shall direct in this behalf, upon pain of an attachment issuing against your person, and such other process of contempt as our said Court shall award. Witness ourself at West- minster, the day of , in the year of our reign . EOMILLT, M. R. \The follotping Memorandum to he placed at the foot.] Appearances are to be entered at the Record and Writ Clerks' of&ce, in Chancery Lane, London; and if you do not cause your appearance to be entered within the time limited by the above writ, the plaintiff will be at liberty to enter an appearance for you at your expense, and you •will be subject to an attachment against your person, and such other process as the Court shall award, and to such order or decree being made against you as the Court shall think just, upon the plaintiff's own showing. No. 213. To Appear and Answer, when the Writ is, hy leave of the Court, to be Served on a Defendant \pr. Defendants'] out of the Juris- diction. Victoria, &c. To , Greeting. We command you [and every of you, where more than one defendant], that within [insert the time directed hy the order giving leave to serve the writ out of the jurisdiction] after the service of this writ on you, exclusive of the day of such service, layiug all other matters and excuses aside, you do cause an appearance to be entered for you in our FOEMS OF WRITS OF SUBPCENA — TO APPEAR, ETC. 249 Higli Court of Chancery to a bill [or, as the case may he, (^c] filed against you by [and others, or, another], and that within [insert the time directed by the same order] you do put in your answer to the same bill [or, as the case may he, c^c], and that you do answer concerning such things as shall then and there be alleged against you, and observe what our said Court shall direct in this be- half, upon pain of such process as our said Court shall award. Witness, &c. ECMTLLT, M. K. \The following Memorandum to he placed at the foot.l Appearances are to be entered at the Record and Writ Clerks' office, in Chancery Lane, London ; and if you do not cause your appearance to be entered within the time limited by the above writ, the plaintiff will be at liberty to enter an appearance for you at your expense, and if jou do not plead, answer, or demur to the bill, &c., within the time limited by the above writ, you will be subject to such process as the Court shall award, and to such order or decree being made against you as the Court shall think just, upon the plaintiff's own showing. No. 214. To Appear, when the Writ is, hy leave of the Court, to he Served on a Defendant [or. Defendants'] out of the Jurisdiction. Victoria, &c. To , Greeting. We command you [and every of you, where more than one defendant], that within [insert the time directed hy the order giving have to serve the writ out of the Jurisdiction] after the service of this writ on you, exclusive of the day of such service, laying all other matters and excuses aside, you do cause an appearance to be entered for you in our High Court of Chancery, to a bill [or, as the case may be, 8fc.] filed against you by [and others, or, another] ; and that 250 WHEN A SDBPCENA TO APPEAR, ETC. MAY BE ISSUED. you do answer concerning such things as shall then and there be alleged against you, and observe what our said Court shall direct in this behalf, upon pain of such process as our said Court shall award. Witness, &c. EoMILIiY, M. E. [The following Memorandum to be placed at the foot.'\ Appearances are to be entered at the Record and Writ Clerks' office, in Chancery Lane, London ; and if you do not cause your appearance to be entered within the time limited by the above writ, the plaintiff will be at liberty to enter an appearance for you *at your expense, and you will be subject to such process as the Court shall award, and to such order or decree being made against you as the Court shall think just, upon the plaintiff's own showing. Indorsement on a Subpcena to Appear, &c. * [JVamfi, 8fc., of the Solicitor or Party issuing the Writ.'] No. 315. Form of Precipe. In Chancery. 1 Seal a subpoena to appear and answer on behalf *• r of directed to Tested this day of ■ [N^ame, 8fc., of the Solicitor or Party issuing the Writ.'] In what cases a Subpoena to appear, 8fc., is still necessary. The issuing of writs of subpoena to appear to, or to appear to and answer, bills, is abolished by the Act 15 & 16 Vict, c. 86, s. 3 ; but not as to any suit in which the bill was filed before the 2nd November, 1852.— Order 13, 6th August, 1852. Any defendant, therefore, who is required to appear to, or to appear to and answer, a bill filed before the 2nd November, 1852, should be served with a subpoena, and such of the fore- FORMS OF SUBP(ENA AD TEST. AND DUCES TECUM. 251 going forms must be used as is applicable to the particular case. Where a defendant is out of the jurisdiction of the Court, the Court, upon application, supported by such evidence as shall satisfy the Court in what place or country such defendant is, or probably may be found, may order that the subpoena to appear to, or to appear to and answer, the bill, may be served on such defendant in such place or country, or within such limits as the Court thinks fit to direct. Such order is to limit a time (depending on the place or country within which the subpoena is to be served), after service of the subpoena, within which such defendant is to appear to the bill, and also (if an answer be required) a time within which such defendant is to plead, answer, or demur, or obtain from the Court further time to make his defence to the bill. At the time when such subpoena shall be served, the plaintiff is also to cause such defendant to be served with a copy of the bill, and a copy of the order, giving the plaintiff leave to serve the subpoena. — ^Articles 1, 2, and 3 of Order 33, 8th May, 1845. The order giving the plaintiff leave to serve the defendant out of the jurisdiction, must be produced to the officer at the time the writ is presented for sealing. It is not necessary to issue and serve a subpoena to appear to an amended bill, unless an answer be required to such bill. The writ must be stamped with a 5s. Chancery fee fund stamp, and a praecipe, in the foregoing form, must be left with the officer at the time the writ is presented for sealing. No. 216. foem of subpcena to testify in couet, or before the Master, or before " Commissioners " to examine Wit- nesses. Victoria, &c. To , Greeting. We command you (and every of you) that, laying all other matters aside, and notwithstanding any excuse, you personally be and appear before our Lord High Chancellor [or, before his Lordship or Honour the Master of the EoUs, or, before Mr. , one of the Masters of our High Court of Chancery, or, before E. F. or G. H., commissioners named in a commission issued to them for that purpose], 252 FORMS OP SUBPOENA AD TEST. AND DUCES TECUM. at such time and place as the bearer hereof shall by notice in writing appoint, to testify the truth according to your knowledge in a certain suit now depending in our High Court of Chancery, wherein A. B. [and others, or another, are, or] is plaintiff [or, plaintiffs], and CD. [and others, or another, are, or] is defendant [or, defendants], on the part of the [in the case of subpoena duces tecum, add, and that you then and there bring with you and produce, &c.J. And hereof faU not at your peril. Witness, &e. KOMILLT, M. E. No. 217. Form Oe Subpcena to Testiei before an Examiner. Victoria, &c. To , Greeting. We command you (and every of you) that, laying all other matters aside, and notwithstanding any excuse, you personally be and appear before Mr. , one of the examiners of witnesses in our High Court of Chancery, at his office in Rolls Yard, Chancery Lane, London, at such times as the bearer hereof shall by notice in writing ap- point [or, before Mr. , the examiner specially appointed for the examination of witnesses in our Chancery, at such times and places as the bearer hereof shall by notice in writing appoint], to testify the truth according to your knowledge in a certain cause depending in our said Court of Chancery, wherein A. B. [and others, or, another, are, or] is plaintiff [or, plaintiffs], and CD. [and others, or, another, are, or] is defendant [or, defendants], on the part of the \in case of subpcena duces tecum, add, and that you then and there bring with you and produce, &c.]. And hereof fail not at your peril. Witness, &c. ROMILLT, M. R. in what cases subpcena ad test. to be issued. 253 Indorsement on a Subpcena to Testify. [The Name, 8fc., of the Solicitor or Party issiiiDg the Writ.] No. 218. FoEM OF Precipe. In Chancery. "1 Seal a subpoena ad test, [or, ad test, and duces «'. Y tecum, as t^e case may be'] ou behalf of , di- J rected to . Tested day of . [The Name, 8fc., of the Solicitor or Party issuing the Writ.'] Official Requirements. — The names of the witnesses, and also the name of the examiner before whom Euch witnesses are to attend, must be inserted in writs of subpoena ad test, or duces tecum before they are sealed. But a subpoena duces tecum will be sealed, although the documents required to be produced are not specified in the writ at the time it is presented for sealing. The time and place of examination may be inserted in the writ. They are, however, more usually embodied in a separate notice. In the three following cases it is necessary that a subpoena ad test, should be issued and served. 1. Where the Evidence required is to be used at the Searing of a Cause wherein Issue has been Joined. For Attendance before an Examiner. If, upon issue being joined in a cause, either party deter- mines to examine any of his witnesses orally, it is necessary that such party^should issue a subpoena ad test, or duces tecum requiring the attendance of such witnesses before one of the examiners of the court, or before an examiner specially ap- pointed by the Court. As to cross-examinations upon Affidavits, see foot note {a). (o) If the evideBoe in the cause has been taken by affidavit, and the attendance of any witness is required only for tUe purpose of cross-examining him upon his affidaTil, 354 IN WHAT CASES SUBP(ENA AD TEST. TO BE ISSUED. If a party has attended and has been examined as a witness before the examiner, in obedience to a subpoena ad test, and duces tecum, and the documents produced by him before the examiner are again required to be produced in court at the hearing of the cause, a subpcEna is not necessary to enforce their production, notice in writing being sufficient. For Attendance in Court. A subpoena ad test, or duces tecum, requiring the attend- ance of a witness or party in court, can only be sealed in cases where the party seeking to issue such subpoena has obtained, and can produce to the officer, an order giving liberty to prove a deed, &c., vivd, voce at the hearing,(a) or where the Court has required the attendance of the witness or party. Upon the hearing of a cause, whether commenced by bill or claim, the Court has power to make such requirement. — 15 & 16 Vict., c. 86, s. 39. Although the section referred to, in terms, includes only the parties to, or mtnesses in, the cause, yet the Court has frequently required the attendance of persons not parties to the cause, and who have not been previously examined as witnesses in the cause. And in Holland v. Johnson, — 1856, H, No. 4, — His Honor Vice-Chancellor Wood, on the 10th June, 1857, gave leave to issue such subpoena before the cau^e came on for hearing. a subpoena is not necessary. For any witness who has made an aiSdavit filed by a party to the cause, and intended to be used by any party to such cause at the heanng thereof, is to be subject to cross-examination and re-examination, within one month after the expiration of the time for closing the eTidence, in the same manner as if the eridence in his affidavit had been given by him orally before the examiner ; and such witness is bound to attend before such examiner for such purpose, upon receiving proper notice and payment of his reasonable expenses, in like ttianner as if he had been served with a subpcena ad test. — See 15 & 16 Vict,, c. 86, s. 38, in combination with Order 5, 13th January, 1855. And the party desiring to cross-examine any such witness, is to give forty-eight hours' notice to the party on whose behalf such affidavit was filed, or to the party intending to use the same, of the time and place of such intended cross-examination, in order that such party may, if he shall think fit, be present at such cross-examination ; and the re-examination of any such witness is immediately to follow his cross-examination. — Orders 34 and 35, 7th August, 1852. (o) The provisions of Order 43, 26th August, 1841 , may, however, in some cases render it unnecessary for the witness to attend in Court. Such Order is to the effect, ' ' that in cases in which any exhibit might by the then p' actice of the court be proved viv4 voce at the hearing of a cause, the same may be proved by the affidavit y)f the witness who would be competent to prove the same viv4 voce at the hearing." IN WHAT CASES SUBPCENA AD TEST. TO BE ISSUED. 255 The direction or leave of the Court is signified by a note from the registrar in the following form, viz. : — No. 219. Vice -Chancellor . Let a subpoena issue for the attendance in court of A. B. Eegistrar. 3. Where the Evidence required is to he used on any Claim, Motion, Petition, or other Proceeding before the Court, not being tlie Hearing of a Cause. Notice to tlie Witness. Any party in any cause or matter may, by subpoena ad test. or duces tecum, require the attendance of any witness before an examiner, and examine such witness orally for the purpose of using his evidence on any claim, motion, petition, or other proceeding before the Court not being the hearing of a cause, in like manner as such witness would be bound to attend and be examined with a view to the hearing of a cause. — 15 & 16 Vict., c. 86, s. 40. Notice to the opposite Party, And the party requiring such attendance, for the purpose of such examination, is to give to the opposite party or parties forty-eight hours' notice at least of his intention to examine such witness, and of the time and place of such examination, imless the Court shall in any case think fit to dispense with such notice. — Order 36, 7th August, 1852. Notice to a Witness who is to be Cross-Examined upon his Affidavit. Any party, whether a party to the cause or matter or not, who has made an afiidavit to be used, or which shall be used, on any claim, motion, petition, or other proceeding before the Court, not being the hearing of a cause, is bound, on being 256 IN WflAT CASES SUBPCENA AD TEST. TO BE ISSUED. served with a subpoena ad test, to attend before an examiner for the purpose of being cross-examined. — 15 & 16 Vict., c. 86, s. 40. Notice to the opposite Party of intention to Cross- Examine the Witness. And the party desiring so to cross-examine such deponent is to give to the opposite party forty-eight hours' notice of the time and place of such intended cross-examination, in order that such party may, if he shall think fit, be present at such cross- examination. — Orders 37 and 34, 7th August, 1852. 3. Where Documents are required to he produced in Evidence at Chambers. The Judge at chambers has power to direct that the examination of witnesses shall be taken by an examiner. — 15 & 16 Vict. c. 80, s. IB. In cases where the Judge directs that the examination of ■witnesses shall take place before the chief clerk, it is not neces- sary to issue a subpoena ad test, to bring the party or witness before the chief clerk. For the purpose of any proceedings directed by the Judge to be taken before the chief clerk, such chief clerk has full power to summon and examine parties and witnesses (15 & 16 Vict. c. 80, s. 30); and parties and wit- nesses thus summoned are bound to attend, and are to be subject to process of contempt, &c., in like manner as if they had been served with and disobeyed an order of the Court or subpoena ad test. — 15 & 16 Vict. c. 80, s. 31. For form of summons, see Schedule B. to Orders, 16th October, 1852. But it appears, that if any such party or witness is required to produce documents, the summons of the chief clerk will not answer the purpose, but that a subpoena duces tecum must be issued, and the Judge at chambers has power to direct that a subpoena shall issue requiring the attendance before him of a party or witness, in like manner as a master in ordinary had. See 15 & 16 Vict. c. 80, s. 36, and Order 58, 16th October, 1852. Whether the witness is to attend before the Judge, or the chief clerk, the subpoena for the attendance of the witness will be sealed upon production of a note from the Judge in like manner as heretofore from the master. — See Order 69, 3rd April, 1828. Such note may be in the following form, viz : — FORM OF SUBtCENA TO HEAR JUDGMENT. 357 No. 220. In Chancery. The Master of the Eolls [or, Vice-Chancellor , as the case may be], requests that a subpoena ad test, [or, duces tecum] may issue, directed to . [Signature of Chief Clerk.] day of . No. 221. Form of a Stjbpcena to Hear Judgment. Victoria, &c. To , Greeting. We command you [and every of you] that you appear before our Lord High Chancellor (a) [or, before His Lordship, or. Honor the Master of the Eolls, as the cause may he set down], on the day of next, (6) or whenever thereafter a certain cause how depending in our High Court of Chancery, wherein is plaintiff, and is defendant, (c) shall come on for hearing, then and there to receive and abide by such judgment and decree as shall then or thereafter be made and pronounced, upon pain of judgment being pronounced against you by default. Witness, &c. EOMILIiT, M. E. Indorsement. [Name, 8fc., of the Solicitor or Party issuing the Writ.] (a) These words are to be inserted even where the cause is marked for, and to be set down to be heard before, a Yice-Chancellor. (b) The date mentioned in the Registrar's note, called the " Subpoena Note." (c) The most correct way of reciting the cause in the subpcena would, perhaps, be to copy the title as set forth in the certificate to set down the cause. /J58 PEAC!TICE AS TO SUBPCENAS TO HEAR JUDGMENT. No. 222. Form of Precipe. In Chancery. "J Seal n subpoena to hear judgment on behalf V. > of directed to Betumable day of ■ Tested day of [Name, 8fc., of the Solicitor or Party issuing the Writ.] Preparing and Issuing Subpama to Sear Judgment. Each subposna to hear judgment may contain three names, (a) and must be stamped with a 5s. Chancery fee fund stamp. The " subpoena note" received from the Begistrar on setting down the cause, and a praecipe in the foregoing form, must be left with the of&cer at the time the writ is presented for sealing. A subpoena to hear judgment may be returnable on any day, as well out of term as in term. — Order 82, 3rd April, 1828, as amended 23rd November, 1831. But it is not to be returnable at any time less than one month (twenty-eight days) from -the teste of the writ.— Article 46, Order 16, 8th May, 1845. The provisions of this order render it necessary to issue the subpoena as soon as the cause is set down, for the date inserted in Uie subpoena note by the Begistrar seldom exceeds twenty- niue or thirty days from the time it is granted by him. If, in any case, it should happen that the subpoena note has not been acted on — ^that is, the subpoena has not been issued — ^in such time as wiU allow twenty-eight days between the teste and return of the writ, an alteration and extension of the return in the subpoena note must be procured from the Begislxar, otherwise the subpoena cannot be sealed. The time within which a subpoena to hear judgment should be obtained and served, is, in the practice, almost invariably mentioned in connection with the time limited for setting down a cause. And a statement of the times of procedure in such cases being given under the title " Certificate to Set Down Cause," it is deemed unnecessary to set them forth here. (a) Husband and wife are reckoned as one. PRACTICE AS TO SUBPCENAS TO HEAR JUDGMENT. 259 Service of Subpoena to Sear Judgment. A subpoena to hear judgment may be served on any day, as ■well out of term as in term. — Order 82, 3rd April, 1828, as amended, 23rd November, 1831. But it must be served at least ten days before the return thereof. — Article 46, Order 16, 8th May, 1845. Service upon a defendant's solicitor, of a subpoena to hear judgment, is to be deemed good service upon the party. — Order 26th, 8th May, 1845. A copy should be served for each defendant. When the Sultana to Hear Judgment may he Obtained by a Defendant. If, after the time for closing evidence has elapsed, the plain- tiff neglects to set down the cause to be heard, any defendant, after the expiration of four weeks, may set the same down at his own request, instead of proceeding to dismiss the bill for want of prosecution ; and may obtain a subpoena to hear judg- ment, and serve the same on the plaintiff. — Order 116, 8th May, 1845- In cases where the cause is set down " at the request of the defendant," it should be so expressed in the Bubpcena. The words are usually inserted immediately following the recital of the title of the cause. In what Cases it is Necessary to Isms and Serve a Subpoena to Hear Judgment. Upon setting down a special case for hearing, it is proper to issue and serve subpoenas to hear judgment, in like manner as in ordinary suits. — 13 & 14 Vict. c. 35, s. 12. Where a cause is set down to be heard after replication filed, or on bill and answer, a subpoena to hear judgment is to be obtained and served. The circumstance of a cause being set down, and marked to be heard as a short cause, or by consent, does but facilitate the hearing of the cause — it does not render it unnecessary to issue and serve a subpoena to hear judgment. Usually, where a cause has become abated after it has been set down for hearing, and new parties are brought before the Court, such new parties only are to be served with subpoenas to hear judgment. But, from Cockburn v. Raphael, 4 Sim. p. 18, it would appear that all the parties required to appear at the hearing should be again served. A subpoena to hear judgment must be served upon or for a defendant as against whom a traversing note has been filed. B 2 260 FORM OF SUBPffiNA FOB COSTS. It is not necessary to issue a subpoena to hear judgment as against a defendant as to whom the bill is to be taken pro confesso. As against a sole defendant, the cause is set down upon an order, drawn up on a petition, as of course, presented at the Begistrars' office. Both the plaintiff and the defendant should be provided with affidavits of service of the subpoena : the plaintiff with an affidavit of having served the subpoena, to ensure, as far as possible, the obtainment of a decree, whether the defendant appears at the hearing or not ; — the defendant, with an affidavit of having been served with the subpoena, so that he may, in the event of the plaintiff not appearing, get his costs. No. 223. FOKM OF A StJBPCENA FOE CoSTS. ViCTOEIA, &C. To , Greeting. We command you [and every of you, if more than one], that you pay or cause to be paid, immediately after the ser- vice of this writ, to , or the bearer of these presents, £ — ■■ — , costs in a cause wherein is plaintiff, and ■ is defendant {(ft; in the matter of , as the case may be], by our Court of Chancery adjudged to be paid by you the said , under pain of an attachment issuing against your person, and such process for contempt as the Court shall award in default of such payment. "Witness, &c. eomillt, m. r. Indorsement. [Name, 8fc., of the Solicitor or Party issuing the Writ.] In Chancery. PRACTICE AS TO SUBPCENAS FOR COSTS. 261 No. 824. Form of Precipe. I Seal a subpoena for' costs {£ ), on behalf '__ j of , directed to . Taxing Master's certificate filed day of . Tested day of . [Ifame, 8fc., of the Solicitor or Party issuing the Writ.] Under what Circumstances a Subpcena fbr Costs Generally Issues. Where costs are awarded by a special order of the Court, the amount is either determined by the Court and specified in the order, or the costs are directed to be taxed. In the former case, a subpoena wiU be sealed upon produc- tion of the order — in the latter, upon production of an office copy of the taxing master's certificate. A subpoena for costs may now be issued in Matters as well as in Causes. Where costs are ordered to be paid by several parties, in seeking to recover such costs, any one of such parties may be proceeded against. Case in which a Subpcena for Costs does not Issue. If an order directs taxation of costs, and payment of the amount, as certified, within a limited time after the service of the taxing master's certificate, the amount is to be recovered, upon service of the order, certificate, and demand, in like manner as in the case of an order directing payment of a sum of money by a party to a party, and not by subpcena and attachment. At what Time after Taasation a Subpoena for Costs may be Issued. A subpoena for costs may be issued as soon as the taxing master's certificate is filed, and an office copy thereof can be obtained. And if the costs are not paid at the time the sub- poena is served, and demand made, an attachment may be immediately issued. Preparation of the Writ. A subpoena for costs may contain the names of, and be directed to, three persons, and must be stamped with a 5s. Chancery fee fund stamp. 262 PEACTICE EESPECTING THE BECOVEBT OF COSTS. Where costs are ordered to be paid by a man and his wife, the subpoena may be directed to both, notwithstanding that the attachment, if sealed, will issue against the husband only. Subpcenafor Costs — Service. The subpoena must be served personally upon the party by whom the costs are to be paid, unless tin order for substi- tuted service has been obtained, in which case the service must be effected in strict accordance with the terms of the order directing such service. The party to whom the costs are payable need not serve the subpoena, nor make the demand. Nor is any power of attorney necessary to enable any other person to demand payment. They are made payable to the bearer of the subpoena. Suhpeenafor Costs — Against a Peer. A person having privilege of peerage, or of parliament, may be served with a subpoena for costs. The subsequent pro- ceeding, however, is not by attachment, but by application to the Court for orders nisi and absolute for a sequestration. Subpoena for CostS' — Against a Corporation. For costs ordered to be paid by a corporation, a subpoena may be issued and served. The next step, however, is not by attachment, but by distringas. See " Distringas," and observa- tions appended thereto. Costs of Amenchnent. Costs of amendment are fixed costs, and are not recoverablef by subpoena. If the costs are not paid, the amendment is not regularly made — and the defendant's remedy is, to move to take the amended bill off the file for irregularity. Costs of Exceptions for Insufficiency. Costs of submitting to exceptions to an answer for insuffi- ciency, are fixed costs, viz., 20s., and if not paid, the submission is imperfect, and the plaintiff may proceed with his exceptions. Unless the Court, upon the hearing of exceptions for insuffi- ciency, gives special directions as to the costs, the costs of such exceptions are fixed costs, and are recoverable by subpoena and attachment. " For the first answer held insufficient, in a town cause, the defendant pays 40s., and in a country cause, 50s. For a second answer, in a town cause, 50s., and in a country cause, 60s. For a third answer, he pays taxed costs. If the first, second, or third answer is held mffident, the plaintiff is to PEACTICE RESPECTING THE EECOVEEY OF COSTS. 203 pay to the defendant the like costs."— See Smith's Ch. Pr., 6th ed. (1857), p. 349. Costs of Pleas and Demurrers. The costs of a plea or demurrer allowed, are taxed costs. — See Orders, 8th May, 1845. So, likewise, are the costs of a plea or demurrer overruled, imless the Court makes other order to the contrary. — Order 32, 3rd April, 1828. Costs of an Abandoned Motion. The costs of an ahandoned motion, in cases where no affidavit has been filed by either party, are fixed at 40s. — See Order, 5th August, 1818. An order directing payment must, how- ever, be obtained, and such order must be produced at the time the subpoena is presented for sealing. Costs of Contempt. Costs of contempt, under an attachment, are fixed costs (see " Costs of Contempt "), and a subpoena cannot be issued for the recovery of them. If the attachment was for not appearing or for not answer- ing, and the costs are not paid, the plaintiff may, in the former case, refuse to accept the appearance, and, in the latter, he may (if the answer is filed) move to take it off the file. If the attachment was for breach of an order or decree, the same amount only of costs of contempt can be recovered, and the party in contempt cannot claim his discharge until he has paid such costs, or the Court has reheved him from liability in respect thereof. Where the process of contempt extends to the messenger or to the serjeant-at-arms, or to sequestration, the costs of contempt are not fixed costs, but taxed costs. Sometimes a case of this kind occurs : — Costs are awarded in favour of A. B. and C. D. against E. F. ; A. B. to pay the costs of C. D., then to be at liberty to recover from E. F. not only his own costs, but also what he shall have paid to C. D. In such case, upon sealing a subpoena against E. F. on behalf of A. B., for recovery of the costs which A. B. has paid to C. D., proof must be given of such payment. The production of the receipt given by C. D. will be sufficient. 264 FOEM OF SDBPOSNA TO NAME A SOLICITOE. No. 326. FoBx OP A Subpoena to Name a Solicitoe. Vhttobia, &e. To , Ghreeting. We command you that, within eight days after the service of this writ on yon, exclusive of the day of such service, laying all other matters and excuses aside, you do cause an appearance to he entered for you in our High Court of Chancery, and name an attorney for you in a cause wherein are complainants, and are defendants, and observe what our said Court shall direct in this bdialf, upon pain of an attachment issmng against your person, and such other process of contempt as our said Court shall award. Witness, &c. RoMiixT, M. R. TkejoOomitg Mtmorandium to be placed at the foot. Appeazanees are to be entered at the Becord and Writ draks' oflSee, in Chancery Lane, London, and if you do not cause your appearance to be entered within the time limited by tiie above writ, you will be subject to an attach- ment against your person, and such other process as the Court shall award, and to such order or decree being made against you as the Court shall think just, upon the plaintiff's o?m showing. No. 826. . FoBM OF Indoesement. By the Court. To name an attorney at the instance of the within- named . [Ifame, 8fe., of the Solicitor or Party issmng the Writ.] PRACTICE AS TO A SUBPOENA TO NAME A SOLICITOE. 365 No. S27. FoBM OF Precipe. In Chancery. a subpoena to name a solicitor on behalf directed to I Seal s 1. J oi—. Tested day of - [2fame, 8fc., of the Solicitor or Party issuing the Writ.l A subpoena to name a solicitor must be stamped with a 5s. Chancery fee fund stamp, and a prsecipe in the foregoing form must be left with the officer to whom the writ is presented for sealing. In Gibson v. Ingo (12 Jurist, 105, 1848), the solicitor of a defendant died. The defendant was living in America. Ap- plication was made to His Honor the then Vice-Chancellor Wigram, that the plaintiff might proceed without serving war- rants on such defendant. His Honor made no order. Application was then made to the then Lord Chancellor (Lord Cottenham) who ordered substituted service of a subpoena ad faciendum attornatum. Under the order of Lord Cottenham, the Clerks of Records and Writs, prepared a writ of subpoena in the foregoing form, in pursuance of the Act 3 & 4 Will. 4, c. 94, s. 31, and the 22nd and 24th Orders, 8th May, 1845. Upon the precedent thus provided such subpoenas are now issued, and they may be so issued without order. The form is the same as of a subpoena to appear to be served upon a defendant within the jurisdiction, as set forth at the foot of the Orders, 8th May, 1845, " with such alterations and variations as the circumstances required." In " Winnall v. Bart," a subpoena was sealed, and the requirements of the subpoena were complied with, by a notice from the new solicitor to the Clerk of Records and Writs, dated 14th March, 1854. 266 SUBPCENA TO SHOW CAUSE AGAINST A DECEEE. No. 228. FOEM OE A SUBPCENA TO SHOW CaUSE AGAINST A DeCEEE. (a) VlOTOEIA,'&C. To , Greeting. We command you, that within days (S) after the service of this writ on you, exclusive of the day of such service, you do show unto our High Court of Chancery good cause why a certain decree made by , on the day of , ina certain cause wherein [and another, or, others] are plaintiffs, and [and another, or, others] are defendants should not be binding upon you. In default whereof, such decree will stand and be absolute against you. Witness, &c. eomillt, m. e. Indorsement. [JViawc, 8fc., of the Solicitor or Party issuing the Writ.] No. 229. FoEM or Pe^cipe. In Chanceet. ") Seal a subpoena directed to , to show cause V. ^ against the decree made by , dated the -J day of Eeturnable . Tested day of ■ [N^ame, 8fe., of the Solicitor or Party issuing the Writ.] This writ will be sealed upon its mere presentation, and without production of the decree. Order 44, 26th August, 1841, provides "that where a defendant makes default at the hearing of a cause, the decree shall be absolute in the first instance without giving the (a) This form is provided by the Orders, 21st December, 1833. (b) The return usually inserted is eight days. PEACTICE AS TO SUMMONS ON CLAIM. 267 defendant a day to show cause," But such order does not apply to some cases in which a decree is made upon an order to take the bill pro confesso against a defendant, (a) nor does it in any case apply to infant defendants. Decrees made in suits in which there are defendants who are infants, invariably direct as follows, viz. : — "And this decree is to be binding on the infant defendants unless they respectively, on being re- spectively served with a subpoena to show cause against the same, shall, within six months after they shall respectively attain the stge of twenty-one years, show unto this Court good cause to the contrary." And it is almost exclusively in such cases that the writ now issues. A subpoena to show cause against a decree need not be served personally. SUMMONS ON CLAIM. Peeliminaey Observation. The writ of summons upon a claim is abolished as to all suits instituted since 2nd November, 1852 ; and inasmuch as it is very improbable that any case will arise in which there has been such delay in the prosecution of the suit, as to require the use of the form of summons on an original claim, provided by Schedule B. (No. 1), to the Orders, 22nd April, 1850, such form is not inserted in this work. The like observation may be made with respect to Form, No. 3, provided by those orders (Summons on Claim to Eevive). Such form (No. 3) is therefore also intentionally omitted. But form. No. 2, provided by those orders, may stUl be requii'ed in cases where the Master or the Judge at chambers shall certify that persons^ other than such as are already before the court, ought to be summoned to attend the proceedings as parties to the suit. In the event of such requirement, there- fore, the following Form is inserted in this work : — (a) For the circumstances tinder wMoh a decree so made is, or is not, absolute, see Orders 81 to 92,' 8th May, 1846. S68 FORM OF SUMMONS ON JUDGE'S CERTIFICATE. No. 230. Form of Summons on a Judge's or Master'^s Certificate. Victoria, &c. To , Greeting. Whereas A. B. hath caused to be filed a claim against G.-D., claiming, &c. {set forth only the claim, without the mtro- ductwy statement]. And whereas by an order made in the said cause, dated the day of , it was ordered . [recite the mandatory part of the order made on the hearing of the claim]. And whereas , Esquire, chief clerk to His Honor the , the Judge to whose court the said cause is attached [or, Mr. , the Master to whom the said order stands referred], hath, by his certificate, dated the day of , certified to us that you ought to be a party to the said cause, and to be served with a writ of summons therein; therefore we command you, that within eight days after service of this writ on you, exclusive of the day of such service, you do cause an appearance to be entered for you ia our High Court of Chancery, and that you do attend the proceedings in the said cause as a party de- fendant thereto, and do and observe such things as are by our said Court ordered and directed iu the said cause : and herein fail not. Witness, &c. EOMILLT, M. E. The following Memorandum to be placed at the foot. Appearance to be entered at the Record and Writ Clerks' Office, Chancery Lane, London ; and if you neglect to appear, the proceedings will be carried on without further notice to you. Indorsement. [iVame, 8(c., of the Solicitor issuing the Writ.] FORM OF WRIT OF VENDITIONI EXPONAS. 269 No. 231. Form of Pilecipe. In Chancery. Seal a writ of summons on behalf of - directed to . Pursuant to certificate of - dated the day of . Tested day of • 1} {Name, 8fc., of the Solicitor issuing the Writ.] The summons must be engrossed on parchment, and in words at length. Each summons may contain thi'ee names, and must be stamped with a 5s. Chancery fee fund stamp. A praecipe in the foregoing form must be left with the officer at the time the writ is presented for sealing. And if the office copy of the certificate of the Judge or Master has not been previously left with the Clerk of Records and Writs, in order that the names of the parties to be sum- moned may be entered in the Cause Book, such office copy must be produced to the officer, and left with him for entry, at the time the writ is presented for sealing. No. 232. FORM OF WRIT OF VENDITIONI EXPONAS. Victoria, &c. To the Sheriff of , Greeting. Whereas, by our writ, we lately commanded you that of the goods and chattels of C. D. [here recite the fieri f amis to the end]. And on the day of you returned to us in our Court of Chancery aforesaid, that by virtue of the said writ to you directed, you had taken goods and chattels of the said C. D. to the value of the money and interest aforesaid, which said goods and chattels remained in your hands unsold for want of buyers. Therefore, we being desirous that the said A. B. should be satisfied his 270 PEACTICE AS TO WEITS OF VENDITIONI EXPONAS. money and interest aforesaid, command you that you expose to sale, and sell or cause to be sold, the goods and chattels of the said C. D., by you in form aforesaid tfken, and every part thereof, for the best price that can be gotten for the same ; and have the money arising from such sale before us in our said Court of Chancery afore- said, immediately after the execution hereof, to be paid to the said A. B., and have there then this writ. Witness ourself at Westminster, the day of , in the year of our reign. EOMILLT, M. K. No. 233. FoKM OF Indoesement. By the Court. {Name, Sfc, of the Solicitor issuing the Writ.] No. 834. FoEM OP Pesicipe. In Chanceey. "J Seal a writ of venditioni exponas, directed V. > to the sheriff of , to sell the goods, &c., of ) , taken under a writ of fieri facias in this cause, tested day of . Tested day of . [Name, 8fc., of the Solicitor issuing the Writ.] In what Case a Writ of Venditioni Exponas Issues. If it shall appear, upon the return of a writ of fieri facias, that the sheriff or other officer hath, by virtue of such writ, seized but not sold any goods of the person ordered to pay a sum of money or costs, the person to whom such sum of money or costs is payable, may, immediately after such writ, with such return, is filed as of record, by his solicitor, sue out a writ of venditioni exponas in the foregoing form, or as near thereto as the circumstances of the case may require. — Order 4, 10th May, 1839. RETTJENS TO WRITS AND PROCEEDINGS THEREUPON. 371 RETURNS TO WRITS. Forms of Eeturns to Writs used in Process op Contempt, AND Proceedings to be taken thereupon. attachment* A writ of attachment returned by the sheriff, or other officer to whom such writ may have been directed, may be filed at the Kecord and Writ Clerks' office. But in cases where the party prosecuting the contempt intends to apply to the Court, upon the sheriff's return, for subsequent process, the original writ, so returned, is required to be produced in court. If the return happens to have been filed, an office copy of the writ and return must be taken. To writs of attachment the sheriff or other officer to whom any such writ may have been directed, makes one or other of the following returns, viz. : — I. — " Cepi Corpus," that is, when he takes the party, but keeps him in his own custody, and accepts bail (a). II. — Attached and sent to or detained in prison, and, III. — " Non est inventus," when the party in contempt can- not be found. Each of these returns, and the proceedings which may be taken thereupon by the plaintiff, or other party prosecuting the contempt, will now be considered separately — repetition being avoided as far as is consistent with a due regard to explicitness and accuracy of detail. And inasmuch as in the statements of the proceedings which are to be taken upon such returns, very special reference is made to obtaining orders to take bills pro confesso for want of answer, the author will premise a few Observations tcith respect to the necessity of an appearance being entered, either by or for a defendant as against whom it is intended to seek to obtain an order to take the bill pro confesso for want of answer. It may be observed, that previously to 1853 the time for answering was always reckoned from the date of the entry of (o) The bail is entirely a private arrangement between the party in contempt and the eherifF, and can only Be accepted by the sheriff in cases where the attachment is for not appearing or answering. 273 PEOCEBDINGS UPON THE EETtTEN — " CEPI COEPTJS.'" the defendant's appearance, hence the necessity for the entry of an appearance, either by or for the defendant, before the plaintiff could obtain an order to take the bill pro confesso for want of answer against such defendant. The necessity does not, however, now seem to exist in cases where the plaintiff can execute a writ of attachment against a defendant for want of answer, inasmuch as where a plaintiff now requires an answer he must file interrogatories, and the time for answering is reckoned from the time of the delivery of a duly sealed copy of such interrogatories. Where the plaintiff cannot execute a writ of attachment or other process, for want of answer against a defendant, and he wishes to proceed against such defendant as an absconding . defendant, an appearance must be entered for such defendant, before the plaintiff can proceed to obtain an order to take the bill pro confesso against him. This is required by Orders 78 and 79, 8th May, 1845. However, it is proper to observe, that, in practice, it is usual to have an appearance entered either by or for a defendant in all cases where the plaintiff intends to obtain an order to take the bill pro confesso, for want of answer against such defendant. No. 835. EETURN— " CEPI COEPUS." If the sheriff takes the party, but accepts baU, or keeps him in his own custody, he returns the writ thus : — I have attached the within-named , as within I am commanded, whose body I have ready. The answer of Sheriff. Peoceedings upon the Eetuen " Cepi Coepus " TO AN Attachment foe "Want of Answee. Upon the return " Cepi Corpus " to an attachment for want . of answer, the plaintiff is either to serve the defendant or his solicitor with a notice of motion for an order to take the bill pro confesso ; or he must cause such defendant to be brought up to the bar of the court, and then proceed to obtain such order, or to adopt either of the other modes of proceeding then open to him. PROCEEDINGS UPON THE RETURN " CEPI CORPUS." 273 I. — Where the Plaintiff' at once determines to proceed to Obtain an Order to fake the Bill Fro Confessofor Want of Answer, mthout bringing the Defendant to the Bar of the Court. If the plaintiff at once determines to obtain an order to take the bill pro confesso against the defendant, for want of answer, he may, upon the execution of the attachment, or within three weeks afterwards, serve the defendant (a) or his solicitor (J) with a notice of motion to he made on some day not less than three weeks after the day of such service, that the bill may be taken pro confesso against, such defendant, and thereupon, if the defendant has not in the meantime put in his answer, or obtained further time to answer, the Court may order that the bin be taken pro confesso, at such time, and upon such terms and conditions, as it may think fit. — See Order 76, 8th May, 1845. (c) II. — Where the Plaintiff determines to bring the Defendant to the Bar of the Court. If the plaintiff determines to cause the defendant to be brought to the bar of the Court, he must, upon receiving from the sheriff the return " cepi corpus," move as of course for the messenger. Upon such motion, supported by the production of the writ, with the sheriff's return, the messenger will be ordered to go against the defendant, and bring him to the bar of the Court. Within what Time a Defendant, Attached for Want of Answer, must be Brought to the Bar of the Court. The plaintiff should take care, that the messenger is sent to the defendant in such time as will insure the defendant's being brought to the bar of the Court by the messenger, before the eoepiratian of thirty days {d)from the day on which he was taken into (a) If the defendant has not appeared, or has appeared in person. (b) If the defendant has appeared by a solicitor. (c) JHicha/rge of the Prisoner. — As soon as the plaintiff has served the notice of motion npon the defendant or his solicitor, the defendant may, with the plaintiS's consent, at once release his bail, and be himself free from the custody of the sheriff ; and, withont snch consent, he is entitled to release his bail and be himself free from such custody at the expiration of thirty days from the day on which he was taken into custody, and without paying any costs of contempt. — See Order li, 8th May, 1845. (rf) Vacations are to be reckoned in the computation of these thirty days.— ^See Fortescue v. HaUat, 29 L. T. 309. 274 PROCEEDINGS UPON THE EETUEN " CEPI CORPUS." custody hy the sheriff, and within ten days after he was taken into cm- tody by the messenger, otherwise the defendant is entitled to his discharge without payment of the costs of the contempt. How- ever, if the defendant does thus obtain his discharge, the plaintiff may issue fresh process at the expiration of eight days from the day of such discharge, if the answer is not filed in the mean- time.— See Orders 73 and 74, 8th May, 1845. When the defendant is brought to the bar of the Court by the messenger, he is, upon the motion of the plaintiff, turned over to the Queen's Prison, by the hands of the tipstaff. Upon the defendant being turned over to the Queen's Prison, the plaintiff has three courses of proceeding open to him : — firstly, he may proceed to obtain an order to take the bill pro confesso against the defendant, for want of answer; secondly, he may press his requirement of an answer from the defendant; or, thirdly, he may file an answer in the name of the defendant. l,-;-Where, upon the Defendant being brought to th^ Bar of the Court, the Plaintiff proceeds to Obtain an Order to take the Bill Pro Confesso for Want of Answer. If the plaintiff intends to proceed to obtain an order to take the bill pro confesso for want of answer, the following pro- visions of the practice show what course is to be adopted : — If any defendant, being in contempt for not answering, has been brought to the bar of the Court, and been committed or remanded back to prison, (a) the plaintiff may sue forth a writ of habeas corpus, provided that there be at least twenty-eight days between the day on which such defendant was so com- mitted or remanded back, and the return of such writ of habeas corpus, and upon or after the return of such writ of habeas corpus, in case such defendant has not put in his answer, the Court is to order the bill to be taken pro confesso against such defendant. — Rule 2 of section 15 of Act 1st WiU. 4, c. 36. (6) (o) For the circnmstances mider -whieh a party will be remanded back to prison. Bee p. 283. (6) Bwchao-ge of the Pmomer.— When snch order is made, the discharge of the prisoner may be determined upon by the Court ; or, if he is taken back to prison, as nothing remains to be done by him but payihent of the costs of the contempt ; upon payment of such costs, either by himself, or by the Court for him, (under the provisions of the Act IstWill. i, c. 36,) he may be discharged. PROCEEDINGS UPON THE EETURN " CEPI CORPUS." 275 . Time from the Arrest of the Defendant within which the Order to Take the Bill Pro Confesso must he Obtained. The plaintiff must take care so to regulate his proceedings, in seeking to obtain an order to take the bill pro confesso, as that he may obtain such order within six weeks after the expiration of two calendar months after the defendant was lodged in prison, or, being already in custody, was detained under the attachment — otherwise the defendant may, upon application to the Court, obtain his discharge, without paying any costs of the contgmpt, unless the Court sees good cause to remand and detain the defendant in custody. — See Rule 13 of section 15 of Act 1st Will. 4, c. 36. Although the pendency of an inquiry on behalf of a defendant as to his poverty, would no doubt afford the plaintiff further time ; still it may be desirable, even in such a case, that the plaintiff should obtain express provision for further time in some order of the Court. What Record is Taken Pro Confesso. The bill taken pro confesso against a defendant is the bill as it stands at the time when the cause is ready for hearing. So that an amendment of the bill will operate as a waiver of the plaintiff's right to continue the process of contempt against a defendant, as against whom he is proceeding to obtain an order to take the bill pro confesso, and will render it necessary to commence his proceedings de novo. The only exception to this rule is, in the case where a defendant (not being an idiot, lunatic, or of unsound mind), having been brought to the bar of the Court for his contempt in not answering, and refuses or neglects to answer, the Court, upon motion or petition, of which personal notice is to be given to the defendant, authorises the plaintiff to amend his bill, without such amendment operating as a discharge of the contempt, or rendering it necessary to proceed with the pro- cess of contempt de novo. After such amendment the plaintiff may proceed to take the amended bill pro confesso, in the same manner as if it had not been amended. But if the defendant is desirous to answer the amended bill, the Court may allow him such time as shall seem just for such purpose, and the process for taking the bill pro confesso is not to be resumed or carried on until such time has elapsed.— See Rule 10 of section 15 of Act 1st Will. 4, c. 36. T 2 276 PROCEEDINGS UPON THE RETURN " CEPI CORPUS." Notwithstanding a defendant may have filed an answer to the original bill, still, if he makes default in answering an amended bill, to which the plaintiff has required an answer, the plaintiff may proceed to obtain an order to take the biU pro confesso, in like manner as in default of a required answer to an original bill. And if, in such case, the bill be taken pro confesso, it will be taken pro confesso generally. See Daniell's Ch. Pr. 3rd ed. vol. i. p. 370, and Smith's Ch. Pr. 6th ed. (1857) p. 273. ifl) 2. — Where the Plaintiff desires to press his Requirement of an Answer from a Defendant who has been brought wp to the Bar of the Court. If the plaintiff wishes to press his requirement of an answer, the course to be adopted is sufficiently suggested by the pro- visions of the following rule : — In any case where, upon the application of the plaintiff, the Court shall bS satisfied that justice cannot be done to the plaintiff without an answer to the bill, or to the interrogatories, from the defendant himself, it shall be lawful for the Court to order the defendant to remain in custody untU answer, or further order, but without prejudice to the plaintiff's availing himseK of any of the provisions of the Act (that is, as to taking a bill pro confesso). — Rule 12 of sec. 15 of Act 1st Will. 4, c. 36. The plaintiff, thus determining to press for an answer, must make the application to the Court referred to in the last recited rule, before the expiration of six weeks after two calendar months from the time the defendant was lodged in prison, or being already in custody, was detained under the attachment, otherwise the defendant may obtain his discharge under the 13th rule, as shown on p. 275. And further, if the plaintiff obtains an order to the effect mentioned in the rule, and afterwards changes his purpose, and desires nevertheless to avail himself of the provisions of the Act, by proceeding to obtain an order to take the bill pro confesso, his obtainment of such order will not afford him any further time for obtaining the order to take the bill pro confesso than is allowed by rule 13, as shown on p. 275. (a) For the steps necessary to be taken by a plaintiff to obtain an order to take a bill pro confesso for want of appearance, or for want of answer, against an absconding defendant, also against a corporation, or against a person having privilege of peerage, or of parliament, see Supplemental Note, p. 292. PROCEEDINGS UPON THE RETURN " CEPI CORPUS." 277 3. — Where the Plaintiff desires to Fih an, Answer in the name of a Defendant who has been brought up to the Bar of the Court. If the plaintiff wishes to file an answer in the name of the defendant, the following rule shows what course is to be adopted : — If any defendant has been brought to the bar of the Court for not answering, and refuses or neglects to answer within the next twenty-one days, the plaintiff is at liberty, with the leave of the Court, — upon ten days' previous notice to the defendant, after the expiration of such twenty-one days, — unless good cause be shown to tfie contrary, instead of proceeding to have the bill taken pro confesso, to put in an answer to the bill in the name of the defendant, without oath or signature ; and there- upon the suit is to proceed in the same manner as if such answer were really the answer of the defendant, with which the plaintiff was satisfied ; and the costs of the contempt and of putting in such answer may be provided for in like manner as if the defendant himself had put in such answer ; and such answer, besides the formal parts thereof, is to be to the follow- ing effect : — ^that the defendant leaves the plaintiff to make such proofs of the several matters in the bill alleged as he shall be able or be advised, and submits his interests to the Court.— Kule 11 of sec. 15 of Act 1st WUl. 4, c. 86. (a) The time within which the plaintiff should make the appli- cation referred to in the above-recited rule, is the same as that allowed for obtaining an order to take the bill pro confesso. See p. 275. General Provisions of the Practice, with reference to the Discharge of a Defendant in Custody under process of Contempt for not A defendant in custody for want of answer may obtain his discharge at any time, by applying to the Court (upon notice to the plaintiff), and submitting to have the bill taken pro confesso against him. The Court may, however, refuse the application if it thinks that justice cannot be done to the plain- tiff without an answer, and that an order to take the bill pro confesso ought not to be made. — See Order 80, 8th May, 1845. (a) Dwcha/rge of (he Prisoner. — In this case the discharge of the defendant is nsnally determined upon by the Court. 278 PROCEEDINGS UPON THE EETUEN " CEPI CORPUS.' Discharge — Where the Defendant is a Fawper. A defendant being brought up in custody for want of his answer, and making oath (which oath is to be administered to him by the Registrar, the defendant being examined in open court), that he is unable, by reason of poverty, to employ a solicitor to put in his answer, the Court is thereupon to refer it to a Master in rotation to inquire into the truth of that alle- gation, (a) and to report thereon to the Court forthwith ; and if the Master reports such defendant to be thus unable, the ComH; may order that the costs of contempt shall be paid out of the suitors' fund, and may assign a solicitor and counsel to enable him to put in his answer, and defend him in forma pauperis ; and may direct any such prisoner, — he having pre- viously done such acts as the Court shall direct, — to be dis- charged out of custody. Provided, that if any such defendant becomes entitled to any funds out of the cause, the same is to be applied in the first instance to the reimbursement of the suitors' fund.— See Order 75, 8th May, 1845 ; and Eules 6 and 7 of sec. 15 of Act 1st Will. 4, c. 36. Discharge — Where the Defendant is an Idiot, 8fc. By Rule 9 of the same Act, it is provided, " that if any prisoner for contempt is an idiot, lunatic, or of unsound mind, the Court may appoint a guardian to put in his answer, and discharge the defendant, providing for the costs in any of the ways pointed out by the Act, as shall seem just ; and if the Court sees fit, the defence may be made by such guardian in forma pawperis. Proceedings upon the Return " Cepi Corpus" to an Attachment for Want of Appearance. Treliminary Observation. The issuing of an attachment for want of appearance is seldom resorted to, inasmuch as the execution of the attach- ment cannot be followed up by any subsequent process — and a remedy, affording all that the plaintiff can require (as against a (a) It is presumed that sueh inquiry would now be prosecuted at chamters. PROCEEDINGS UPON THE RETURN " CEPI CORPUS." 279 defendant whom he has been able to serve with a copy of the bill), being provided by the General Orders, 8th May, 1845, under which he is enabled to enter an appearance for the defendant. However, as attachments for want of appearance may be, and are, sometimes, issued, it will now be shown what pro- ceedings may, and what may not, be taken by the plaintiff after such an attachment has been executed. A Defendant taken into GvMody under Process of Contempt for not Appearing, cannot be brought to the Bar of the Court. Upon the sheriff's return " Cepi Corpus," to an attachment for want of appearance, if any subsequent process could be resorted to, it would, upon such return, be for the purpose of bringing the defendant to the bar of the Court by the mes- senger ; but " no order is to be made for a messenger to take the body of the defendant for the purpose of compelling him to appear to a biU." — Order 7, 36th August, 1841. It may, perhaps, be as well to mention in this place, that the practice, as here stated, applies likewise to eases where the sheriff attaches the defendant, and lodges or detains him in prison. Indeed, it seems but reasonable that if a party, taken under an attachment for not appearing, and kept in the custody of the sheriff, cannot be brought to the bar of the Court by a mes- senger, it would not be proper that a party taken under such process, and lodged or detained in prison, should be brought to the bar of the Court by habeas. For a custody by the sheriff, upon the return, " Cepi Corpus," is, in effect, equivalent to a custody in prison under the other form of return, the sheriff being fully responsible for the body of the party, and the acceptance of bail being purely accidental so far as the caption itself is concerned. This point is thus observed upon, the author having found that some practitioners are under the impression, that where a defendant has been arrested under an attachment for not appearing, he must be brought to the bar of the Court within thirty days, pursuant to the directions in Rule 5 of sect. 15 of the Act 1st Wm. 4, c- 36. But, in practice, a defendant taken under an attachment for not appearing, is not brought to the bar of the Court ; and by the operation of Order 7, 26th August, 1841, the provisions of so much of Rule 5 of sect. 15 of the Act 1st Will. 4, c. 36, as relates to a contempt for not appear- ing, are, (so far at least as the plaintiff's proceedings are 280 PEOCEEDINGS UPON THE EETCRN " CEPI CORPUS." concerned,) obsolete in practice, (a) So far as the defendant is concerned, he may, under that rule, claim and obtain his discharge at the expiration of thirty days from the time of his being actually in custody or detained ; or, if the last of such thirty days shall happen out of term, then at the expiration of the first four days of the ensuing term, — the costs of the con- tempt being borne, by the party who issued the process. An Appearance should be Entered at the Instance of the Plaintiff, under the Provisions of the General Orders, Qth May, 1845. There are certain provisions contained in the Act 1st "Will. 4, c. 36, viz., sect. 11, and Rule 13 of sect. 15, under which the plaintiff might proceed to cause an appearance to be entered for a defendant, who has been taken under an attachment for not appearing ; such provisions, however, though not expressly abrogated or repealed, have, nevertheless, become obsolete in practice since the General Orders, 36th August, 1841 ; and especially the General Orders, 8th May, 1845, came into operation, and the practice which now prevails is as follows : — A plaintiff, even if he issues and executes an attachment for want of appearance, inasmuch as he cannot follow up the attachment of the defendant by any subsequent process, gene- rally abandons the process of contempt, and proceeds to enter an appearance for the defendant under Order 29, 8th May, 1845 (more fully set forth under title, " Appearance "), leaving the defendant to claim and obtain his discharge under Rule 5, as before-mentioned. However, the plaintiff is not homid to' enter an appearance for the defendant ; but if he does not enter an appearance, and leaves the defendant in custody until he has obtained his dis- charge, and issues another attachment against the defendant, it could only again be followed by the like results. His best and real remedy, therefore, to obtain an appearance is under the Orders of the 8th May, 1845. The cases to which the foregoing observations apply are, of course, cases wherein the plaintiff has been able to serve the defendant with process to appear, otherwise he could not have issued an attachment for want of appearance. But there is a case provided for by the 3rd section of the Act 1st "Will. 4, c. 86, in which a plaintiff may, in default of (a) And it has been decided, that as to a contempt far not answering, the rule is Superseded by Order 1i, 8th May, 1845 ; see FoHescw T. ffaUett, 29 L. T. S09. PROCEEDINGS ON RETURN "ATTACHED AND IMPRISONED." 381 appearance, proceed to take the bill pro confesso. Such case, however, involves the necessity of the existence of the circum- stance of inability on the part of the plaintiff to serve the defendant with process to appear. See this case, more fully referred to, in the observations upon the course of proceeding to be adopted in seeking to obtain an order to take a bill pro confesso for want of appearance, pp. 293 and 293. Where the Attachment is for Breach of an Order or Decree, or for Non-payment of Costs. The return " Cepi Corpus " cannot be made to an attachment for breach of an order or decree, or for non-payment of costs, inasmuch as in such cases bail cannot be accepted. The sheriff must, if he takes the party, lodge or detain such party in prison, and the subseguent steps to be taken by the plaintiff or party prosecuting the contempt, are shown, therefore, in the observa- tions upon the next Form of " Eeturn." No. 236. EETUEN— ATTACHED AND IMPEISONED. If the sheriff takes the party and lodges him in gaol, or, finding him already in prison, lodges a detainer against him, he returns the writ thus : — I have attached the within-named , whose body remains in Her Majesty's gaol for my county of , [under my custody, or as the case may he\. The answer of Sheriff. Proceedings upon the Eeturn " Attached and Im- prisoned," WHERE THE ATTACHMENT IS FOE WaNT OF Answer. Upon this return to an attachment for want of answer, the plaintiff is either to serve the defendant, (a) or his solicitor, (5) (a) See note (a) on p. 273. (6) See note (i) on p. 273. 282 PEOCEEDINGS ON EETUBN " ATTACHED AND IMPEISONED." with a notice of motion for an order to take the bill pro con- fesso, or he must cause the defendant to be brought up to the bar of the Court, and then proceed to obtain such order, or to adopt either of the other modes of proceeding then open to him. I. — Where the PlainUff at once determines to Proceed to Obtain an Order to Take the Bill Pro Confesso, without Bringing the Defendant to the Bar of the Court. If the plaintiff at once determines to proceed to obtain an order to take the bill pro confesso against the defendant for want of answer, he must adopt the course marked out in the observations upon the return " cepi corpus ; " see p. 273. (a) It may be desirable, also, to refer the practitioner to the information given in pp. 271 and 272, with respect to the neces- sity of an appearance being entered either by or for a defendant, as against whom a bill is to be taken pro confesso. II. — Where the Plaintiff determines to Bring the Defendant to the Bar of the Court. If the plaintiff determiues to cause the defendant to be brought to the bar of the Court, then, upon receiving from the sheriff the return to the effect that he has sent the defendant (a) A defendant who, after being taken into cnstody for want of answer, is, throngli the medium of his solicitor (he haying appeared by a solicitor) to be at once, or within three weeks afterwards, served with a notice of motion for an order to take the bill pro confesso, may, with respect to his discharge from custody, very properly 'be left to the advice and assistance of his solicitor. But in cases where the defendant to be thus served has. not himself appeared, or has appeared in person only, the author would respectfully suggest to the practitioner, that he should, at the time he serves the notice of motion, also authorise the discharge of the prisoner ; or at any rate, inform the defendant that at the expiration of thirty days from the day on which he was taken into custody, he is entitled to claim his discharge without paying any costs of contempt ; such right being claimable by him under the provisions of tiie General Orders, 8th May, 1845. The author is induced to make this suggestion, several very distressing cases of unnecessarily lengthened confinement in prison of poor persons in custody, imder pro- cess of contempt for not answering, and ignorant of their right to claim a discharge, having come under his notice. The evil alluded to can only happen in cases where any such defendant is lodged and left in prison, and not brought to the bar of the court ; for if brought to the bar of the court, the Court could then apply the ample provisions of the practice to the circumstances of any such defendant, and insure his discharge, if justice should seem to require it. The above suggestion may be acted on by the practitioner without in the least degree prejndiping his proceedings. PROCEEDINGS ON RETURN ATTACHED AND IMPRISONED." 283 to, or detained him in prison, he, the plaintiff, must move as of coTirse for a habeas corpus cum causis to bring the defendant to the bar of the Court. Upon this motion, sup- ported by the production of the writ, with the sheriff's return, the order for the habeas will be made. Such writ will be directed to the gaoler or keeper of the prison, or other officer, in whose custody the defendant is, and, under such writ, the defendant will be brought to the bar of the Court. Within what Time a Defendant, Attached for Want of Answer, must be Brought to the Bar of tM Court, The defendant must be thus brought to the bar of the Court within thirty days {a) after he was lodged or detained in prison. If he is not thus brought up he is entitled to his discharge, without paying the costs of contempt. But the plaintiff may, at the expiration of eight days after such discharge, issue fresh process if the answer is not filed in the meantime. — See Order 74, 8th May, 1845. When the defendant is thus brought to the bar of the Court, he is, upon the motion of the plaintiff, turned over to the Queen's Prison by the hands of the tipstaff. When the Defendant is Remanded hack to Prison. If the defendant is confined in prison /or a misdemeanour, and upon thus being brought up is turned over to the Queen's Prison pro forma, but is carried back to the prison from whence he came ; another writ of habeas corpus may issue, directed to the gaoler or keeper of the prison to which he has been carried back, and thereupon the defendant is to be brought into court and remanded to the prison from whence he came with his cause, without being turned over again to the Queen's Prison. — See Eule 4 of section 15 of the Act 1st Will. 4, c. 36. Proceedings which may he Taken u^on the Defendant's being Turned over to the Queen's Prison or Itemanded back to Prison. When the defendant has been turned over to the Queen's Prison, or remanded back to the prison from whence he came, the plaintiff has three courses of proceeding open to him : — firstly, he may proceed to obtain an order to take the bill pro confesso against the defendant for want of answer ; secondly, («) See note (d) on p. 273. 284 PROCEEDINGS ON EETDRN "ATTACHED AND IMPEISONED." he may press his requirement of an answer from the defen- dant; or, thirdly, he may file an answer in the name of the defendant. The proceedings to be adopted in each of these cases, being fully set forth in the information given in reference to the same subject under the return " cepi corpus," it is unneces- sary to repeat them here. The practitioner is therefore referred to pp. 374 to 377. Pboceedings upon the Eetubn " Attached and Im- PEISONED," WHERE THE ATTACHMENT IS FOR WaNT OF Appearance. Upon the sheriff's return to an attachment for want of appearance, to the effect that he has sent the defendant to or detained him in prison, the plaintiff cannot bring the defendant to the bar of the Court, for the purpose of compelling him to appear to the bill. The course of proceeding which the plaintiff should adopt is shown on p. 380. (a) Where the Attachment is for Breach op an Order or Decree, or for Non-payment of Costs. Upon the sheriff's return to an attachment for breach of an order or decree, or for non-payment of costs, to the effect that he has sent the party to or detained him in prison, the party prosecuting the contempt may leave the party in prison until he clears his contempt, by performing the act required of him, and paying the costs of the contempt, viz., 13s. 8d. Or, if the party prosecuting the contempt desires further process, he is, upon such return, entitled to a commission of (a) In cases in wMcli the plaintiff may happen to issue and execute an attach- ment for want of appearance, the author would respectfolly suggest to the practitioner that as it is more usually the poor defendant, unable to employ a solicitor, and nnahle to procure bail, who is taken to prison under an attachment for not appearing, and as such persons are very likely to be ignorant of their rights under the Act 1st WiU. 4 c. 86, and the keepers of the county prisons are not always mindful of those rights' he, tie practitioner should, immediately he determines to abandon the process of con- tempt, and to pnter an appearance under the proTisions of the fleneral Orders, 8th May, 1845, authoriii&the discharge of the defendant. If the defendant could be brought to the bar of the ooui't, this suggestion would be unnecessary, inasmuch as in that case the Court would relieve the defendant. EETUEN "nON EST INVENTUS." 285 sequestration against the estate and effects of the disobe'dient party.— See Order 11, 26th August, 1841, as amended 11th April, 1843, and 18th July, 1857. Where the party in contempt has been taken into custody under process of attachment for non-performance of an order or decree, the application for an order for a sequestration is by motion as of course, supported by the production in court of the sheriff's return. Where the party has been taken or detained under an attach- ment for non-payment of costs, the party prosecuting the con- tempt may obtain an order for a habeas corpus, and bring the party in contempt to the bar of the Court ; and thereupon such party is turned over to the Queen's Prison, and an order for a sequestration is made, (a) No. 237. EETUEN—" NON EST INVENTUS." If the sheriff is unable to find the party, he returns the writ Non est inventus " thus : — The within-named is not found m my bailiwick. The answer of Sheriff. (a) Power of sequestrators to seize ioohs, ttc, and of the Court to discharge the prisoner. — ^Where a person is committed for contempt t» not delivering to any person, or persons, or d^ositing in court or elsewhere, as by any order may te directed, boohs, papers, or am/ other articles or things any sequestrator, or sequestrators, appointed nnder any commission of sequestration, is to hare the same power to seize and take such books, papers, writings, or other articles or things, being in the custody or power of the person against whom the sequestration issues, as he [or they] would have over his [or their] own property ; and thereupon such articles or things so seized and taken are to be dealt with by the Court as shall be just ; and after such seizure the Court may, upon the application of the prisoner, or of any other person in the cause or matter, or upon report to be made [by the visiting Master] in pursuance of the Act 1st Will, i, c. 36, to make such order for the discharge of the prisoner, and, if it sees fit, making any costs in the cause as shall seem proper, — Bule 16 of section 15 of Act 1st Will. 4, c. 36. In any other case of com/mitmentfor contempt the Court may, upon any such applica- tion as last aforesaid, or upon any such report as aforesaid, make such order for the discharge of the prisoner, upon any terms, and making any costs in the cause, as shall seem just. — £ule 17 of section 15 of Act 1st Will. 4, c. 36. 386 PROCEEDINGS ON THE EETUEN " NGN EST INVENTUS." Peoceedings upon the Retuen " NoN EST Inventus," wheee THE Attachment is foe Want of Answee. Upon this return — ^if the attachment is for want of answer — the plaintiff may apply to the Court, by motion as of course, either for an order for the seqeant-at-arms, or for sequestration. 1. Application foe the Seejeant-at-Aems. If the plaintiff applies for an order for the serjeant-at-arms, the Court grants the order under the authority of Bule 1 of section 15 of the Act 1st Will. 4, c. 36, and Order 9, 26th August, 1841. Reqmrements hy the Court on stick Application. Such rule provides that, on granting such order, the Court may require that the solicitor of the plaintiff or his town agent shall satisfy the Court, by affidavit, that due diligence was used to ascertain the place where such defendant was at the time of issuing such writ, and in endeavouring to apprehend such defendant under the same, and that the person suing forth such writ verily believed that at the time of suing forth the same such defendant was in the county into which such writ was issued. Within what Time the Defendant must, if apprehended hy the Serjeant-at-Arms, be Brought to the Bar of the Court. If the seijeant-at-arms apprehends the defendant he must be instructed to bring him to the bar of the Court within ten days after he was taken into custody by the serjeant-at-arms, otherwise the defendant is entitled to his discharge in like manner as when taken into custody by a messenger, and not brought to the bar of the Court in due time. If the serjeant-at-arms finds the defendant in custody, he lodges a detainer against him, and returns accordingly; and thereupon the plaintiff, within ten days from the date of the detainer, applies for an order for a habeas, and brings the defendant to the bar of the Court. Proceedings which may he taken when the Defendant is Brought to the Bar of the Court by the Serjeant-at-Arms. Upon the defendant's being brought to the bar of the Court, whether by the seqeant-at-arms or upon the habeas, he is PROCEEDINGS ON THE EETUEN " NON EST INTENTUS." 287 turned over to the Queen's Prison, or remanded back to prison, and the plaintiff must adopt one or other of the three modes of proceeding mentioned on p. 274, and fully set forth on pp. 274 to 277. Where the Serjeant-at-Arms returns " Non est Inventus." If the serjeant-at-arms cannot find the defendant, he also will make the return " non est inventus," and thereupon the plaintiff may obtain as of course an order for a sequestration ; or he may proceed to obtain an order to take tiie bill pro confesso against the -defendant as against an absconding de- fendant — for the practice as to which, see supplemental note, p. 294. 2. Application foh Sequestbation. If application for sequestration is made in the first instance, the order may be obtained on motion, as of course, supported by the production of the attachment with the sheriff's return. If the application is made after the return " non est inventus " by the serjeant-at-arms, the order is to be obtained in like manner upon such return. Pboceedings upon the Retden " NoN EST Inventus," wheee the Attachment is foe WAnt oe Appeaeance. Upon the sheriff's return " non est inventus," to an attach- ment for want of appearance, no order is to be made for the serjeant-at-arms, to take the body of the defendant for the purpose of compelling him to appear to a bill. — See Order 7, 26th August, 1841. The course of proceeding which the plaintiff should adopt is shown on p. 280. Peoceedings to be taken upon the Eetuen " Non est Inventus," wheee the Attachment is foe Beeach of an Oedee oe Decree, oe foe Non-patment op Costs. Upon the return " non est inventus " to an attachment for breach of an order or decree, or for non-payment of costs, the party prosecuting the contempt may apply to the Court by motion as of course, either for an order for the serjeant-at-arms, or for sequestration. 288 PROCEEDINGS ON THE RETURN " NON EST INVENTUS." 1. Application for the Serjeant-at-Arms. If the party applies for an order for the seijeant-at-arms, the Court will grant the order, and thereupon the serjeant-at- arms goes against the party in contempt, (a) Where the Serjeant-at-Arms ajiprehends the Party. If the serjeant-at-arms apprehends the party, he brings him to the bar of the Court, and such party is thereupon turned over to the Queen's Prison ; and upon proof of such committal, — that is, by production of the keeper's certificate, — the party prosecuting the contempt may apply, by motion as of course, for an order for a sequestration. Where the Serjeant-at-Arms finds the Party alread/y in Custody. If the serjeant-at-arms finds the party already in custody, he makes a return accordingly, and thereupon the party pro- secuting the contempt may apply to the Court for a habeas, upon which the party in custody will be brought to the bar of the Court, and turned over to the Queen's Prison, and upon such committal, the party prosecuting the contempt may obtain, by motion as of course, an order for a sequestration. Where the Serjeant-at-Arms returns " Non est Inventus." If the seijeant-at-arms cannot find the party, he also makes the return " non est inventus," and thereupon the party prose- cuting the contempt may obtain, by motion as of course, an order for a sequestration. 2. Application for Sequestration. For the mode of proceeding on this application, see p. 287. When the contempt is for breach of an order or decree, or for non-payment of costs, no particular time is limited within which the party prosecuting the contempt is to take the several before-mentioned proceedings upon the return " non est in- ventus." (o) For the requirements by the Court on such application, see p. 286. j PROCEEDINGS TO OBTAIN THE SHERIFF'S RETURN. 289 EETURNS TO WRITS OF ATTACHMENT. («) Proceedings to be Taken to Obtain from the Sheriff a Return to a Writ of Attachment. It is usual for the solicitor or party who issued the vrrit to apply, in the first instance, to the sherifi", or his under-sheriff or agent, to return such writ, requesting that he will either hand such return to the solicitor, or file it at the Record and Writ Clerks' office. If the sheriff will not return the writ upon such request, then he may be compelled to do so, and the following is the course of proceeding to be adopted : — It is generally understood that the sheriff has until the time when the writ is returnable to make his own return. However, it seems clear, that if the sheriff takes a party into actual custody, and, by delaying to return the writ, any injury accrues, he may be responsible for the consequences. If the writ is returnable on a given day, the plaintiff may after that day compel the sheriff to return it. If the writ is returnable " immediately," the party may call for the return on the fifth day after the writ was put into the sheriff's hands. To compel the sheriff to return the attachment, the plaintiff presents a petition as of course to the Master of the Rolls. The order made thereon directs that he do forthwith make his return on the said writ of attachment. If he refuses, then, upon an affidavit of the service of the order, the plaintiff applies (upon a notice of motion) that the sheriff may make the return within six days, or stand committed and pay the costs of the application. The books lay down that the application should be, that the sheriff may be amerced, but it is conceived that it must be varied according to the circumstances of the case. For the foregoing information, as also for information with respect to the like returns to writs of attachment issued into counties palatine, see Smith's Chancery Practice, 6th ed. (1857), p. 117. (a) The form of a special retnm applica,ble to the case of a person privileged from arrest, in respect of any pecnniai'y liability, under the provisions of the Acts for the Belief of Insolvent Debtors, will be fonnd among the miscellaneous forms in Part 9. o 290 RETURNS TO WRITS OF FI. FA. AND ELEGIT, JTitxi dfaciass ox OEl^fltt A writ of fieri facias or elegit, when executed by the sheriff or other officer, to whom such writ was directed, is, when returned by him, to be delivered to the solicitor by whom it was sued out, and thereupon filed as of record in the office of the Clerks of Eecords and Writs.— Order 3, 10th May, 1839. Upon the filing of the sheriff's return to any writ of fieri facias, to the effect that he has seized, but not sold, any goods of the person against whom the writ issued, a writ of venditioni exponas may be issued. — See Order 4, 10th May, 1839. Upon the filing of the sheriff's return to a writ of fieri facias or .elegit, issued pursuant to the General Orders of the 10th May, 1839, to the effect that the person against whom the writ issued is a beneficed clerk, and without lay property, one or more writ or writs of fieri facias de bonis ecclesiasticis, or writ or writs of sequestrari facias, may be issued. — See Order 2, 18th July, 1857. Such writs, when returned by the bishop, are to be delivered to the solicitors by whom they were sued out, and are thereupon to be filed at the Record and Writ Clerks' office.— See Order 4, 18th July, 1857. The following is the form of a return to a writ of fieri facias, made by the sheriff in a case where part only of the amount sought to be recovered was levied. No. 238. I hereby certify that I have levied and made of the goods and chattels of the within named , the sum of , that I have paid thereout to the landlord and tenant of the premises, whereon the said execution was levied, the sum of for rent due for the said premises, that I have paid and'retained the further sum of for sheriff's poundage, bailiff's fees, and expenses ; and the sum of , residue thereof, I have paid to the attorney for the within named plaintiff. And I further certify, that the said de- fendant hath not any other or more goods or chattels in my RETURNS TO WRITS OF SEQUESTRATION. 291 bailiwick, whereon I can cause to be levied the residue of the sum of money within mentioned, nor any part thereof, as within I am commanded. The answer of , Sheriff. It is not the practice to file a return to a writ of sequestra- tion. Goldsmith v. Goldsmith, 10 Jurist, 561. The following is the form of a return nulla bona to a writ of sequestration : — No. 239. To the Right Honorable the Lord High Chancellor of Great Britain. By virtue of the within commission, we do certify to your Lordship, that we have made diligent search and inquiry after the real estate, and goods, chattels, and per- sonal estate, of the within-named , but cannot find that he is possessed of any real or personal estate that we can sequester and take into our hands, as by the within commission we are commanded. Witness our hands the day of . :;) Commissioners. It will be seen from the language of the return, that it is to be indorsed on the commission itself. Upon such a return, the party prosecuting the contempt, if he wishes to have another sequestration, or any further or other remedy, must apply specially to the Court. 292 PKO CONFESSO AGAINST ABSCONDING DEFENDANT. OBTAINING ORDER TO TAKE BILL PRO CONFESSO. AGAINST AN ABSCONDING DEFENDANT. 1. Foe Want of Appearance. If a plaintiff desires to take the bill pro confesso against a defendant for want of appearance, he can only do so under the provisions of the 3rd section of the Act 1st Will. 4, c. 36 ; the General Orders of the 8th May, 1845, being exclusively applic- able to cases where the bill is to be taken pro confesso /or want of answer, (a) The following is the section referred to : — " If, in any suit commenced in any court of equity, any de- fendant against whom process to appear shall issue (6), shall not cause his appearance to be entered upon such process within due time as the same ought to have been entered, in case mmh process had heen duly served, and an affidavit or affidavits shall be made to the satisfaction of the Court that such de- fendant is beyond the seas, or that upon inquiry at his usual place of abode he couldnot he found, so as to be served loith such pro- cess, and that there is just ground to believe that such defendant is gone out of the realm, or otherwise absconded, to avoid being served with the process of such court ; then the court out of which such process issued may make an order, directing and appoint- ing such defendant to appear at a certain day therein to be named, and a copy of such order is, within fourteen days after such order made, to be inserted in the " London Gazette," and published on some Lord's Day, immediately after Divine service, in the parish church of the parish where such defend- (a) The provisions of Order 31, 8th May, 1845, are not so extensive as those of sec. 3 of the Act 1st Will. 4, o. 36. Sneh order docs not extend to the taking of the bill pro "jonfesso, but merely provides for the eniiry of an wppemram.ce aganiat an absconding defendant, such entry being preUmmaiy to the proceedings aet forth in Order 79, under which last-mentioned order the plaintiff may proceed to take the bill pro confesso for want of answer against a, defendant for whom an appearance has been entered under Order 31. (6) This would now be by sealing a duly indorsed copy of a bill for service. PRO CONFESSO — AGAINST ABSCONDING DEFENDANT. 293 ant made his usual place of abode, within thirty days next before such his absenting ; and also a copy of such order is, wdthin the time aforesaid, to be posted up as after mentioned, that is to say, a copy of every such order in the High Court of Chancery, Court of Exchequer, or the Court of the Duchy Chamber of Lancaster, at Westminster, is to be posted up in some public place at the Royal Exchange in London ; and a copy of every such order made in any of the courts of equity of the counties palatine of Chester, Lancaster, and Durham,^ or of the great sessions in Wales, is to be posted up at some public place in some market town within the jurisdiction of the Court by which such order was made, and nearest to the place where such defendant made his usual abode as. aforesaid, such place of abode being also within the jurisdiction of the said Court; and if the defendant do not appear within the time limited by such order, or within such further time as the Court shall appoint, then, on proof made of such public- ation of such order, the Court, being satisfied of the truth thereof, may order the plaintiflf's bill to be taken pro confesso, and make such decree thereupon as shall be thought just." The remaining portion of the section has reference to the power of the Court to compel the performance of the decree so made, upon certain specified terms and conditions. — See sect. 3 of Act 1st Will. 4, c. 36. Sections 9 and 10 of the same Act provide that the foregoing provisions of the Act are not to extend, or be construed to extend, or warrant, or make good any such proceeding against any person, unless it appears to the satisfaction of the Court, by affidavit, before the making of the decree, that such person had been in that part of Great Britain called England within two years, or, in cases where the proceeding is in a court having limited jurisdiction, within one year, next before the process to appear issued against him. It will be observed that certain parts of the third section of the Act are, in the preceding recital, printed in italics. This has been done to draw the attention of the practitioner more distinctly to what may be termed the foundation upon which the proceedings to obtain an order to take a bill pro confesso for want of appearance, under that section, rest, viz., the cir- cumstance of inability to find the defendant so as to serve him with process to appear. The taking of a bill pro confesso, under the Act 1st Will. 4, c. 36, s. 3 (for want of appearance) against an absconding defen- dant, is altogether distinct from the taking of a bill pro con- fesso against an absconding defendant, under the Orders of 8th 294 PRO CONFESSO — AGAINST ABSCONDING DKFENDANT. May, 1845. Jn the latter ease, the entry of an appearance, either by or for the defendant (fully provided for by those orders), is, in all cases, a necessary preliminary step in the pro- ceedings ; and the biU is afterwards, under those orders, taken pro coiifesso/or want of answer. The remedy under the Act may be made available to a plain- tiff in some cases where he does not require an answer from a defendant, and cannot even serve him with process to appear. 3. Foe Want of Answer. Appearance must be First Entered. In all cases where a bill is to be taken pro confesso for want of answer against an absconding defendant, under the General Orders, 8th May, 1845, the entry of an appearance, either by or for the defendant, is a necessary preliminary step. The plaintiff, therefore, in proceeding to obtain an order to take the bill pro confesso for want of answer against an absconding defendant, mast see that an appearance is entered either by or for such defendant. If the defendant has appeared, and whether in person or by his own solicitor, the plaintiff's course is clearly enough set forth in Order 78, 8th May, 1845. See p. 296. If the defendant has not appeared, either in person or by his own solicitor, the plaintiff must proceed to enter an appearance for him — as against a defendant, served with process to appear within the jurisdiction of the court, under Order 29, 8th May, 1845 — as against a defendant, served with process to appear out of the jurisdiction of the court, under Order 33, 8th May, 1845 — and as against a defendant who has absconded to avoid being served with process to appear, under Order 31, 8th May, 1845. See p. 296. The several orders here referred to are fully recited under the title " Appearances." An appearance being entered, the plaintiff seeking to obtain an order to take the bill pro confesso for want of answer, against an absconding defendant, must consider whether he can comply with the requirements of the practice, referred to in the following observations : — in other words, whether the circumstances of his case are in accordance with the Circumstances under which a Defendant who has not Answered is to he Deemed to have Absconded. Where any defendant, either being or not being within the jurisdiction of the court, does not put in his answer in due PRO CONFESSO — AGAINST ABSCONDING DEFENDANT. 295 time after appearance entered by or for him («), and the plaintiff is unable with due diligence to procure a writ of attachment, or any subsequent process, for want of answer, to be executed against such defendant by reason of his being out of the juris- diction of the court, or being concealed, or for any other cause, then such defendant is, for tiie purpose of enabling the plaintiff to obtain an order to take the bill pro confesso, to be deemed to have absconded to avoid, or to have refused to obey, the pro- cess of the Court.— Order 77, 8th May, 1845. It has been decided that, in cases where the defendant is knovm to he out of the jurisdiction of the court, it is not necessary to issue* an attachment. The positive oath as to the defendant being actually resident out of the juris- diction, is sufficient to satisfy the Court that the plaintiff could not procure a writ of attachment to be executed against the defendant, as required by Order 77, inasmuch as, under such circumstances, an attachment could not be issued against sujeh defendant. The attachment could not, in such case, be directed for execution to any authority abroad, and the direction of any such writ into any county within the jurisdiction, while it is known that the defendant is not to be found there, could answer no useful purpose. The decision which has been followed in practice was pronounced by the Master of the Rolls, in Hume v. GHl- christ, 26th March, 1850. Other decisions having the like bearing, will be found cited in Smith's Ch. Pr., 6th ed. (1857), p. 267. In cases where it is doubtful whether the defendant is out of the jurisdiction or not, an attachment should be issued into the county where he is supposed to reside, or to have resided within the last preceding two yeai's ; and upon the sheriff's return "non est inventus," with an affidavit by the officer that due diligence was used to exe- cute the writ, the defendant will, for the purpose of ob- taining an order to take the bill pro confesso, be deemed to have absconded. (o) It was the old practice by which the entry of an appearance fixed the time for answering. However, the entry of an appearance is necessary where the hill is to he taken pro confesso, for want of answer against an absconding defendant — the course of proceeding under Orders 78 and 79, 8th May, 1845, being founded upon and regulated Vy such entry. 296 PEO CONFESSO — AGAINST ABSCONDING DEFENDANT. Obtaining Order to take the Bill Pro Confesso for want of Answer, against an, Absconding Defendant. Where the Appearance has been entered by the Befendamt, either in Person w by his oum Solicitor. Where any defendant who, under Order 77, 8th May, 184S, may be deemed to have absconded to avoid, or to have refused to obey the process of the Court, has appeared in person or by his own solicitor, the plaintiff may serve upon such defend- ant or his solicitor, a notice that on a day in such notice named (being not less than fourteen days after the service of such notice), the Court will be moved that the bill may be taken pro confesso against such defendant ; and the plaintiff, is, upon the hearing of such motion, to satisfy the Court that such defendant ought, under the provisions of Order 77, to be deemed to have absconded to avoid, or to have refused to obey, the process of the Court ; and the Court being so satis- fied, and the answer not being filed, may, if it so thinks fit, order the bill to be taken pro confesso against such defendant, either immediately or at such time or upon such further notice, as, under the circumstances of the case, the Court may think proper.— Order 78, 8th May, 1845. Where the Appearance has been Entered at the instance of the Plaintiff, vpon the Defendant's Default. Where any defendant who, under Order 77, may be deemed to have absconded to avoid or to have refused to obey the process of the Court, has had an appearance entered for him under orders 29 (a), 31 (S), or 33 (c), and has not afterwards appeared in person, or by his own solicitor, the plaintiff may cause to be inserted in the " London Gazette," a notice that on a day in such notice named (being not less than four weeks after the first insertion of such notice in the " London Gazette"), the Court will be moved that the bill may be taken pro confesso against such defendant ; and the plaintiff is, upon the hearing of such motion, to satisfy the Court that such defendant ought, under the provisions of Order 77, to be deemed to have absconded to avoid, or to have refused to obey the process of the Court, and that such notice of motion has been inserted in the " London Gazette," at least (o) Where the appearance has been entered upon a service ■within the jurisdiction of the eonrt. (i) Where' the appearance has been entered as against an absconding defendant. (c) Where the appearance has been entered upon service on a defendant out of the jurisdiction. PEO CONFESSO COEPOEATION PEER. 297 once in every week, from the time of the first insertion thereof, up to the time for which the said notice is given ; and the Court, being so satisfied, and the answer not having been filed, may, if it so thinks fit, order the bill to be taken pro confesso against such defendant, either immediately, or at such time, or upon such further notice, as, under the circumstances of the case, the Court may think proper. — Order 7 9, 8th May^ 1845. OBTAINING ORDER TO TAKE BILL PRO CONFESSO. Foe Want of Answee. Against a Corporation. The process of contempt in not answering, ordinarily issued against corporate bodies, must first be obtained. For instance, a distringas issues. If to such distringas the sheriff returns " nuUa bona," then an " alias distringas" is to be issued. If to such second writ the sheriff still returns " nuUa bona," then a " pluries distringas" is to be issued. And if the sheriff still returns " nuUa bona," upon such return the plaintiff may move, as of course, for an order nisi for a seques- tration. If to either of the writs of distringas the sheriff returns " issues, 40s." the plaintiff may move, as of course, for an order for a sequestration. An order absolute for the sequestration is then to be obtained, and upon obtaining such order the plaintiff may move, as of course, for an order to take the bill pro confesso. Against a Person having Privilege of Peerage or of Parliament. The time for answering having elapsed, an order nisi for a sequestration — to be moved for upon notice to the defendant — is to be obtained. At expiration of the time limited in the order nisi for showing cause, the plaintiff may move, as of course, for an order absolute for the sequestration, and after obtaining this order the plaintiff may move, as of course, for an order to take the bill pro confesso. 298 PEO CONFESSO — PERSON PRIVILEGED. Pro Confesso — For Want of Answer to a Bill of Discovery against a Defendant having Privilege of Parliament. When any defendant having privilege of Parliament shall have appeared to any bill filed against him seeking a discovery upon oath, or when an appearance shall have been entered for such defendant according to the provisions of the 12th section of the Act 1st Will. 4, c. 36 (a), and such person refuses or neglects to put in his answer to such bill within the time for that purpose allowed by the rules and orders of the Court, then the plaintiff in such suit may apply to the Court for an order that such bill may be taken pro confesso against such defendant, and upon such application the Court is to make an order -that such bill shall'be taken pro confesso, unless the defendant shall, within eight days after being served with such order, show good cause to the contrary, see 1st Will. 4, c. 36, s. 13. Section 14 of the same Act provides that such bill so taken pro confesso may be read in evidence as an answer admitting the facts. (a) Or, it is presumed, when an appearance may hare teen entered for sncli defendant under the provisions of the present practice, viz., under the General Orders, 8th May, 1845. PART IV. ^tnenHment^, AMENDMENT OF A BILL. In what respect the Record of a Bill cannot be Altered by Amendment. Neither the name of the Judge for whom the cause is marked, nor the foot note containing the name and address of the solicitor, can he altered hy amendment. The following are the reasons for the practice : — From the time the bill is filed, the cause is, as to tiie Judge before whom it is to be heard, sub- ject to the control of the Lord Chancellor, and can only be transferred to another Judge by special order; — and as to the name of the solicitor, such name can only be changed by order, under the provisions of the General Orders, 26th October, 1842. A mere correction of name, or alteration of address, may be notified to the Clerks of Eecords and Writs by a written memorandum to that effect. The entry of a suggestion on the record, under the Joint- Stock Companies Winding-up Acts, is not made by Amend- ment, but by an Order, see " Entry of Suggestion." In what respect the Record of a Bill need not be Altered by Amendment. Upon an order being made substituting a next friend, or an official manager, or other party, it is not necessary to amend the record. But in every subsequent proceeding in the cause the name of the substituted party must be used ; and if any such proceeding be by way of an amendment of the bill, the sub- stituted name, &c., may be introduced into the record. If a female defendant marries, her husband need not be named upon the record as a defendant, but, in all proceedings -taken subsequently to the marriage, the names of the husband 300 AMENDMENT — OF BILL. and wife may be introduced into the title of the pleadings, or other proceedings in the cause thus : — " John Jones and Mary his wife (late and in the bill called Mary Eoberts, Spinster"), &c. In what reject a Bill may be Amended. Before Appearance Entered. Before an appearance is entered by any defendant to the bill, the plaintiff may amend such^ill in any respect what- ever (not inconsistent with the rules of equity pleading), and except as shown on page 299. After Appearance Entered. After an appearance has been entered, the plaintiff may, by amendment, alter the record as he may be advised. But if in thus amending he seeks to strike out the name of a defendant who has appeared, the order to amend must express the object and provide for the costs of the defendant whose name is to be struck out. If an order to dismiss the bill as against such defendant has been previously obtained, his name may be struck out by amendment without any express direction to that effect being inserted in the order to amend. The order to dismiss must, however, be left for entry in the Cause Book kept by the Clerks of Records and Writs. If an appearance has been entered, and it is desired to strike out, by amendment, the name of a plaintiff, a special order must be obtained. Introduction of Supplemental Matter hy way of Amendment. Facts or circumstances which may have occurred after the institution of any suit, and which the plaintiff may desire to state or put in issue, may be introduced, by way of amendment, into the original bill, if the cause is otherwise in such a state as to allow of an amendment being made in the bill ; if not, then by way of supplemental statement. See 15 & 16 Vict. c. 86, s. 53 ; see also " Supplemental Statement." Amending Written Bilk. A written bill may be amended, and in such case, the printed copy, when filed, must be a copy of the bill as amended. Copies of amended written biUs may be sealed for service, and served, in like manner as copies of amended printed bills. Adding the Name of Counsel. Adding the name of counsel is not usually regarded as an amendment of the bill. AMENDMENT — OF BILL, 301 If the omission is discovered "and supplied before any de- fendant has taken advantage of it, an order as of course may be obtained, by which leave will be given to add the name. It may, however, be introduced as an amendment of a " clerical error." Obtaining and Serving Order to Amend. Times irithin which an Order as of course to amend may he obtained and served. As to " Clerical Errors." An order for leave to amend only for the purpose of recti- fying some clerical error in names, dates, or sums, may be obtained at any time, upon motion or petition, without notice. —Order 65, 8th May, 1845. Before Answer. An order for leave to amend may be obtained (as of course) at any time before answer, upon motion or petition, without notice, (a)— Order 64, 8th May, 1845. Aj^r the Answer {a Required Answer) of the Defendant, or a Joint Answer of all the Defendants, is filed. In cases where there is a sole defendant, or where, there being several defendants, they all join in the same answer, the plaintiff may, after answer, and before replication, or under- taking to reply, obtain (6) an order of course for leave to amend the bill at any time within four weeks after the answer is deemed or found to be suflScient. — Article 32, Order 16, 8th May, 1845. After all the Defendants required to Answer (in cases u-here there are several Defendant's) have answered— answering separately. In cases where there are several defendants who do not join in the same answer, the plaintiff (if not precluded from amend- (a) Any nmnber of orders to amend may be thus obtained before answer. But in cases where the phuntiff has not required an answer, any order, or orders as of course to amend mnst be obtained before the expiration of tlu-ee months from the entry of the defendant's appearance ; because, after the expiration of such three months, the defendant conld, in such a case, serve a notice of motion to dismiss for want of pro- secntion. (5) The order should also be served within such four weeks. See Article 1, Order 114, 8th May, 1845. 302 AMENDMENT OP BILL. ing, (a) or limited as to the time of amending by some former order), may, after answer, and before replication, or undertaking to reply, at any time within four weeks after the last answer is deemed or found to be sufficient, obtain (6) an order of course for leave to amend his bill. — ^Article 33, Order 16, 8th May, 1845. No further order of course for leave to amend a bill is to be granted after an answer has been filed, unless in the case pro- vided for by Order 65, — ^the case of an amendment of a clerical error.— Order 66, 8th May, 1845. Where Notice to Dismiss has been served. The plaintiff is not to obtain an order of course for leave to amend his bill after a defendant (being entitled to move) has served a notice of motion to dismiss the bill for want of prose- cution. — Order, 13th April, 1847. Summary of the Practice with respect to the time within, which aplain- Uff may obtain an Order as of course to amend, in cases where several answers are filed. The practice in cases where several answers are required,, and have been filed, is as follows : — A plaintiff may amend under an order of course, obtained at any time within four weeks after the last of the answers required is filed, subject, however, to the following conditions, viz. — If he has not already obtained an order of course to amend, after any one of the answers was filed, — see Article 33 of Orderl6, 8th May, 1846 — or if any defendant (" entitled to move to dismiss ") has not served a notice of motion to dismiss for want of pro- secution. — See Order, 13th April, 1847. The filing of a voluntary answer by a defendant does not affect the plaintiff in respect of the time within which he may obtain an order as of course to amend — that is, the plaintiff is not, by the circumstance of a defendant's filing a voluntary answer, deprived of the three months (c) within which he may proceed against any such defendant, in order to avoid a motion to dismiss for want of prose- (a) This means, nsoall;, if the plaintiff is not precluded from thns amending, by having already amended the bill under an order as of course, after an answer fled. (6) The order should also be lerved within such four weeks. See Article 1, Order 114, 8th May, 1845. (c) See Order 29, 7th August, 1852. AMENDMENT — OF BILL. 303 cution. See this point, more fully observed upon under title " Dismissal of Bill." When a Special Order to Amend is necessary. After filing, or undertaking to file, a replication, a special order to amend is necessary. And after the expiration of the times mentioned in Articles 33 and 33 of Order 16, 8th May, 1845 (set forth on pp. 301 and 302), a bill can only be amended under the authority of a special order. Special applications for leave to amend are to be made by summons at the chambers of the Judge to whose court the cause is attached, and are to be supported by such evidence as is mentioned in Orders 67, 68, and 69, 8th May, 1845. Orders to amend, which may be obtained upon special ap- plication by summons at chambers, may, hy consent, be obtained as of course. Obtaining Order to Amend — Times of Vacation not to he reckoned. The times of vacation are not to be reckoned in the compu- tation of the times allowed for obtaining orders for leave to amend bills. — Article 1, Order 14, 8th May, 1845. Service of Order to Amend. An order to amend should be served upon or for each defen- dant who has appeared, before the amendment is made, and if payment of costs is directed by the order, such costs should be paid, and a memorandum of receipt for the same indorsed upon the order. However, it is very usual, in practice, to serve an order to amend toith a copy of the bill as amended. Peepaeing and Making the Amendments. Time within which the Order to Amend is to be acted on. The plaintiff, having obtained an order for leave to amend his bill, has, in all cases in which such order is not made without prejudice to an injunction, fourteen days after the date of the order within which he may amend such biU. — ^Article 34 of Order 16, 8th May, 1845. The plaintiff, having obtained an order for leave to amend his bill without prejudice to an injunction, must amend such bill 304 AMENDMENT^OF BILL. within seven days from the date of the order. — Article 85 of Order 16, 8th May, 1845. The limitation of fourteen days applies not only to orders to amend obtained as of course, but also to special orders to amend made in court or at chambers. As delay may unavoidably occur in drawing up, passing, and entering orders made by the Court, it is desirable, in all such cases, that the time within which the amendment is to be made should be specified in the order. Where the plaintiff obtains an order to amend his bill, and does not amend the same within the time limited for that pur- pose, the order to amend becomes void, and the cause, as to dismissal, stands in the same situation as if such order had not been made.— Order 70, 8th May, 1845. Amending — Times of Vacation not to he Reckoned. The times of vacation are not to be reckoned in the com- putation of the times appointed or allowed for amending bills (a). —Article 1 of Order 14, 8th May, 1845. How the Amendments should he Prepared. It will greatly facilitate the making of amendments, if the following suggestions are attended to :— Alterations introduced by counsel into a printed copy of the bill, should be written in black ink. Alterations introduced into a manuscript copy of the bill, should be distinguished by being written in coloured ink. If not thm distinguished, the alterations should be clearly indicated, either by being underlined, or by being marked " amendment " or " second amendment," as the case may be. Signature of Counsel. The signature of counsel is not required to an amendment, where the amendment is merely for the purpose of amending a clerical error in names, dates, or sums. But the order to amend should express that the amendment is for such pur- pose, and should specify the particular alterations required. In all cases where the order to amend is drawn up in terms, " as the plaintiff may be advised," the signature of counsel is required. If the bill is amended by the counsel who signed the original (a) Such rule does not, however, apply to caaes where a specified time for amending is fixed in and by a speciai order. Where a special order fixes and specifies the time, the general rule does not operate. AMENDING BILL, WITH OE WITHOUT EEPEINT. 305 bill, the name of such counsel need not be repeated on the record, either upon an amendment by a reprint, or upon an amendment by alteration of the original record. But if the bill is amended by another counsel, the name of such other counsel must be written on the record, under the name of the former counsel, thus : — " Amended — John Roberts." Making the Amendmeni. Where an amendment of a bill may be made without a reprint, such bill may be amended by written alterations in the printed bill already filed, and by additions on the paper interleaved therewith. — Order 7, 7th August, 1853. WTien a Reprint is necessary. A reprint is necessary only in cases where the amendment to be introduced in any one part of the record comprises two or more folios (a). Amending Bill by a Reprint. Upon amending a bill by a reprint, the copy to be filed is to be stamped with a stamp of the same amount as is required in the case of an original bill, viz., with either a 11. (higher scale) or 10s. (lower scale) Chancery fee fund stamp. The order to amend must be produced to the officer at the time the amended bill is presented for filing. Amending Bill idthout a Reprint. Upon amending a bill without a reprint, the draft of the bill as altered and signed by counsel, together with the order to amend, must be left with the officer, and from such draft the officer will amend the original record. On thus leaving the draft amended bill, a praecipe, in the fol- lowing form, must also be delivered to the officer, viz. : — (a) To avoid, as far as possible, the necessity of a reprint, ninety words to the folio are, in practice, allonred. • It should, however, be mentioned, that the introduction into the record of any amendment of any length will be refused, if by such introduction the record would be so defaced as that it could be read only with great difSoulty. Where, from the length of the amendment, a new copy is required, the alterations may not be partly printed and paitly written, but the whole bill as amended must be in print. See Nayhr v. Wright, 3 Jurist, N. S. 95. 306 SEAJiING AND SERVING COPIES OF AMENDED BILLS. No. 240. In Chancery. V. For amending bill. [2^ame of Solicitor.] day of The praecipe must be stamped with a 10s. Chancery fee fund stamp. — Schedule 3, Orders, 30th January, 1857. Amending the Record. Whenever any bill upon the files of the Court shall be amended, the record of such bill, when amended, is to be marked with the date of the order under which the same is so amended, in manner and form following, viz. : — No. 241. Amended day of , by order dated day of {a). And an entry of such amendment, together with the date of making such amendment, and the date of such entry, is to be made in the book kept by the Clerk of Becords and Writs ; and such amended bill is to be deemed to be filed at and from the date of such entry.— Order 13th May, 1838. Notice of Amendment. Notice of amendment may be given either by a formal notice, or intimation to that effect by letter ; or, as is more usual in practice, by serving a duly stamped and sealed copy of the amended bill. Sealing and Serving Copies of Amended Bills. Service of a Copy in all Cases necessary. A copy of an amended bill, whether upon an amendment by a reprint, or by alterations in, or additions to, the original (a) If the time to amend has been extended by another order, then under the ioregoiDg memorandnm the following words are to be written: — "Time to amend extended by order, da,ted day of ." SEALING AND SERTING COPIES OF AMENDED BILLS. 307 record, is to be served upon the defendant or his solicitor, and such copy may be partly printed and partly written, if the amendment is not made by a reprint. But in every case the copy to be served is to be stamped with the stamp of the Kecord and Writ Clerks' office, indicating the filing of such amended bill, and the date of the filing thereof. — Order 9, 7th August, 1852. Sealing Cop)/ for Service. On presenting a copy of an amended bill for sealing, a praecipe must be left with the officer in the following form, viz. : — No. 242. In Chancery. Seal one copy of amended bill for service. } V. > Dated day of - [Name, ^c, of Plaintiff" s Solicitor.] One praecipe may be used for any number of copies sealed at the same time, and in the same cause. It is the duty of the solicitor to see that the amendments are correctly introduced into any copy which he may wish to have sealed for service. When an Indorsement is or is not necessary on Copies of Amended Bills Sealed for Service. 1. If the defendant to be served with a copy of an amended bill has appeared to the original bill, and has not answered such bill, or has answered, and no answer to the amended bill is required from him, no fresh appearance being required, an indorsement on the copy of the amended bill is unnecessary — notice of amendment is sufficient — and service of a copy of an amended bill, without an indorsement, is, in practice, regarded as " Notice of Amendment." 2. In all cases where an answer is required from a defend- ant to an amended bill, an indorsement on the copy of the amended bill served for such defendant is necessary. This necessity arises from the circumstance that an answer can only be required by filing interrogatories, and the time for filing the interrogatories can only be limited by limiting the time for appearing. — See Order 16, 7th August, 1852. 3. If the defendant has not appeared to the original bill, x2 308 SEALING AND SERVING COPIES OF AMENDED BILLS. the copy of the amended bill to be served upon him should be indorsed, because any appearance afterwards entered either by the defendant, or by the plaintiff upon the defendant's default, would be to the bill as amended. For special forms of indorsement and other information with respect to indorsements on copies of bills see " Indorse- ments on Copies of Bills Sealed for Service." The whole, or any part, of the indorsement on a copy of an amended bill sealed for service may be written. Number of Copies required for Service. In all eases where a copy to be served may be served without having an indorsement upon it, one copy on each solicitor (a) is sufficient, " notice of amendment " only being required. Where the copy to be served upon or for any defendants requires the indorsement, a copy should be served upon or for each such defendant. So that, if a solicitor appears for two or more defendants, and an answer is required to the amended bill from one of such defendants only, two copies must be served on such solicitor, the one without an indorsement for those defendants as to whom " notice of amendment " is sufficient, the other with an indorsement for the defendant from whom an answer is required to the amended bill. Service of Copy of an Amended Bill. Where the Defendant has appeared by a Solicitor. Where a defendant has appeared by a solicitor, service upon such solicitor of a copy of the amended bill, whether wholly printed, or partly printed and partly written, is to be good service on the defendant. — Order 9, 7th August, 1852. Where the Defendant has appeared in person. Where a defendant has appeared in person, service at the address for service of such defendant of a copy of an amended bill, is to be good service on the defendant. — Order 10, 7th August, 1853. Substituted Service. Substituted service must be effected in strict accordance with the terms of the order directing such service. (a) But a case in which a solicitor appears as "properly concenied" for some defendants, and as "agent" for other defendants, would be regarded as a case in which two solicitors are concerned. AMENDING INFOEMATIONS AND INTEEEOGATORIES. 309 AMENDMENT OF AN INFORMATION. If, in amending an information, a reprint is necessary (and the necessity is governed by the same rule as in the case of a bill, viz., by the length of the amendment to be introduced into any one part of the record (a) ), the signature of the Attorney- General is required to such reprint. But if the amendments can be introduced into the original record, such signature „to the draft amended information is sufficient. In most other respects the amendment of an information, and service of copies thereof, &c., are governed by the same rules as apply to the amendment, &c., of a bill. — See, therefore, " Amendment of BUI." AMENDMENT OF INTERROGATORIES. Under what circumstances Interrogatories may he Amended. Interrogatories may be amended under an order as of course, at any time before an answer is put in thereto ; not, however, for the purpose of requiring an answer from a defendant with respect to whom the time for filing interrogatories has elapsed, or from a defendant who was not a party to the bill at the time the interrogatories were originally filed. In cases where the plaintiff amends his bill before the inter- rogatories have been answered, and it becomes necessary to amend the interrogatories also, it is usual to provide, in the one order to amend, for the amendment of both the bill and interroga- tories. If, after the interrogatories have been answered, the plaintiff amends his bill, and requires an answer to the amendments, he cannot amend the original record of the interrogatories for the purpose of requiring such answer, but he must file a new set, embodying only the subject matter of the amendments to which a further answer is required. (a) See p. 805. 310 AMENDMENT OF INTEEEOGATOEIES. Where an Answer is required from a new Farhi, added by Amendment. If, upon amendment of a bill, a new party is added as de- fendant, and such party is required to answer the bill as amended, the original interrogatories cannot be amended, but an entirely new set must be filed as against such new party, even although such interrogatories may comprise many of those already filed. The reason for this is, that the interrogatories, although amended, nevertheless speak as from the date on which they were originally filed. And if interrogatories fkm filed could be amended, so as to require an answer from a party, added by amendment, the interrogatories would appear to have been originally filed against him hefore he was a party to the record. WTiere the Plaintiff desires to waive his requirement of an Answer from a Defendant. The plaintiff may, at any time before filing replication, or before setting down the cause, amend the interrogatories as to any defendant from whom he determines not to enforce an answer. The order to amend (which may be obtained as of course) should, however, express the object thus : " That the plaintiff be at liberty to amend the interrogatories filed in this cause, on the day of ■, by striking out so much of the heading, and of the note at the foot thereof, as requires an answer from the defendant ." Mode of Applying for Leave to Amend Interrogatories. Except in the case last referred to, applications for leave to file or to amend interrogatories are to be made (by summons), at the chambers of the Judge to whose Court the cause is attached. However, any order which may be obtained specially at chambers, by summons, may, by consent, be obtained upon petition as of course. Pbepaeing and Making the Amendment. Amendments of interrogatories are settled and signed by counsel, in like manner as amendments of bills. SERVING COPIES OF AMENDED INTERROGATORIES. $11 If the amendments to be introduced into any one part of the record of the interrogatories comprise two foHos or more — ninety words being allowed to each folio — a new engrossment must be made and filed. If a new engrossment is not required, then the draft interrogatories, as altered and signed by counsel, together with the order to amend, must be left with the of&cer, and from such draft the oflBcer will amend the record. No fee is payable on amending interrogatories. Sealing and Serving Copies of Amended Interrogatories. In what Gases necessary. In all cases, except where the plaintiff amends the interro- gatories in order to show that he waives his requirement of an answer from a defendant, it is necessary that a duly stamped, examined, and sealed copy of the interrogatories as amended should be served upon or for each defendant who has not answered at the time the interrogatories are amended. And as. to any defendant who has not answered the original inter- rogatories, such defendant will have his full time for answering over again, from the date of the service of a copy of the inter- rogatories as amended. Number of Copies Required. One copy for each solicitor is sufficient, irrespective of the number of defendants for whom any such solicitor may be concerned (a). WTien a previously Sealed Copy may he He-sealed. Any copy of the original interrogatories which may have been previously sealed for service, but not served when the interrogatories are amended, may, when amended and re- exainined, be re-sealed for service, without further fee. And a praecipe on such " re-sealing " must be left with the officer. Mow Service to be Effected, Service of a copy of interrogatories as amended, is to be effected in like manner as service of original interrogatories, see pp. 37 and 38. (o) See note (o), p. 308. 312 AMENDMENT OP AN ANSWER. Amending Interrogatories filed by a Defendant. The foregoing observations, showing the practice in relation to interrogatories filed by a plaintiff for the examination of a defendant, are, so far as the oflScial requirements are con- cerned, equally applicable to interrogatories with concise statement prefixed, filed by a defendant for the examination of a plaintiff. AMENDMENT OF AN ANSWEE. In what respects an Answer may he Amended. An answer may be amended for the purpose of correcting the title, or adding the signature of counsel, omitted inadver- tently. But in aU such cases the order to amend must express the particular alteration required. Such orders, in the cases referred to,- are usually drawn up thus: — That the defendant be at liberty to amend his answer filed in this cause on the day of , by, &c, [specifying the particular alteration required], without the same being taken off the file or re-sworn. The order may, by consent, be obtained upon a petition as of course. The addition of new matter cannot be introduced into an answer by way of amendment, but must be embodied in a " supplemental answer," to file which, the special leave of the Court — to be obtained upon motion, after notice — ^is necessary. Amending tlie Answer. The order to amend, if obtained, together with the draft of the answer as amended and signed by counsel, must be left with the officer, who, from such draft, wiU amend the original record. No fee of Court is payable on amending an answer. If any oflBce copy of the answer has been taken, it should likewise be left with the oflScer, in order that the same may be corrected in accordance with the alterations made by amend- ment in the record. AMENDMENT OF A CLAIM. 313 AMENDMENT OF A CLAIM. Where an amendment of a claim may be made without a reprint, such claim may be amended by written alterations in the printed claim already filed, and by additions on the paper interleaved therewith. — Order 7, 7th August, 1852. In what respects a Claim may or may not he amended. A plaintiflf may amend a claim, as he may be advised, sub- ject only to the following conditions : — Firstly. If, by amending a " common claim," it is made a " special claim," the leave of the Court must be obtained to file it. Secondly. If a claim is amended by striking out the name of a defendant who has appeared, the costs of such defendant must be provided for in the order to amend, in like manner as in the case of a biU. A claim cannot be amended by altering the name of the Judge for whom the original claim was marked, nor by chang- ing the name, &c., of the solicitor filing it. Application for leave to Am^nd. An order to amend a claim may be obtained as of course at any time before the claim is set down for hearing. After a claim has been set down for hearing, special leave to amend must be obtained. Signature of Counsel. The signature of counsel is not required. But if the original claim was drawn and signed by counsel, the amended draft should likewise be signed by counsel. Time for Amending. In practice, the plaintiff is limited to fourteen days for amending under an order to amend a claim, in like manner as in the case of a bill. Amending Claim by a Reprint. A reprint is necessary only in cases where the amendments to be introduced into any one part of the record comprise two or more folios — ^ninety words being, in practice, allowed to each folio. 314 SERVING COPIES OF AMENDED CLAIMS. Upon amending a claim by a reprint, the copy to be filed must be stamped with a 5«. Chancery fee fund stamp. And the order to amend must be produced to, or left with, the offiijer, at the time the amended claim is presented for filing. Amending Claim without a Meprint. Upon amending a claim without a reprint, the draft of the claim, as amended, together with the order to amend, must be left with ofi&cer. Also a praecipe, in the following form, viz. : — No. 243. In Chancery. For amending Claim. [Name of 8olicitor.[ day of — The praecipe must be stamped with a 10s. Chancery fee fund stamp. — Schedule 3, Order, 30th January, 1857. The alterations to be introduced into the record should be distinguished in the draft claim either by red or blue ink. Amending the Record. On amending the record of a claim, a memorandum of the date of the amendment, and of the order to amend, is to be marked, by the officer, both on the record and in the Cause Book, in the same way as in the case of a biU, in accordance with the General Order, 13th May, 1838. Sealing and Serving Copy of an Amended Claim. On amending a claim, the plaintiff is to serve on the de- fendant, or his solicitor, a duly stamped and sealed copy of such claim. — Order 9, 7th August, 1852. Such copy must have an indorsement thereon, in like manner as in the case of a copy for service of an original claim. A copy should be served on or for each defendant. The copy for service must be stamped either with a 5s. (higher scale) or with a Is. (lower scale) Chancery fee fund stamp, and is to be served in like manner as a copy of an amended bill. See p. 308. AMENDMENT OF A "SPECIAL CASE." 315 On presenting a copy of an amended claim to be sealed for service, a praecipe must be left with the officer. Such praecipe may be in the following form, viz. : — No. 244. In Chancery. 1} Seal one copy of an amended claim for ser- vice. Dated day of . [Name, 8fc., of Plaintiff's Solicitor.] One praecipe may be used for any number of copies sealed at the same time, and in the same cause. AMENDMENT OF A " SPECIAL CASE." In what Respects a Special Case may or may not he Amended. Except as mentioned in the next paragraph, a " special ease " may be amended in any respect, as the parties may be advised ; all the parties by their counsel concurring therein. A " special case " cannot be amended by altering the name of the Judge for whom the original case is marked, nor by changing the name, &c., of the plaintiff's solicitor. Nor can the name of a party who has appeared to the " special case " be struck out by amendment, unless the order to amend authorises it, and provides for his costs. When a Special Case may he Amended. A special case may be amended under an order as of course at any time before it is set down for hearing. After the case is set down for hearing, special leave of the Court is necessary. As the amendment can be made only with the concurrence of all the parties to the " special case," so the order can be obtained only by the consent of all the parties; and the time for amending under the order, whether obtained as of course 316 AMENDMENT OF A "SPECIAL CASE." or specially, is limited to fourteen days, in like manner as in the case of a bill. Amending by a New Engrossment. If the amendments to be introduced into any one part of the record comprise two or more folios — ninety words being allowed to each folio, — a new engrossment must be made, and such engrossment must be stamped with a 11. Chancery fee fund stamp ; and when presented for filing, the order to amend must be produced to or left with the officer. The amended " special case " must be signed by counsel for all parties, and an office copy thereof must be taken by the plaintifi'. Amending Without a New Engrossment. If the amendments can be introduced into the original record, the draft of the " special case," as amended, and as signed and approved by counsel for all parties, together with the order to amend, must be left with the officer ; also a prae- cipe in the following form, viz. : — No. 245. In Chanceet. For amending special case. [Name of Plaintiff's Solicitor.] day of — The praecipe must be stamped with a 10s. Chancery fee fund stamp. — Schedule 3, Order, 30th January, 1857. If the " special case " is amended without a new engrossment, another office copy need not be taken ; but the office copy pre-, viously taken should be left with the Clerk of Records and Writs» who Twll insert therein the amendments and alterations, and for which no fee is payable. AMENDMENT OF A SUMMONS. 317 AMENDMENT OF A SUMMONS. When a Summons may or may not he Altered by way of Amendment. Except as mentioned in the next paragraph, a summons originating proceedings in chambers may be amended in any respect (provided the amendment preserves the character of the document as a summons authorised by the practice), and at any time before it is heard. But it is not proper, 'if any such summons has been served upon any of the parties, to amend it by altering the return so as to meet the requirements as to the time of service upon other parties. If the summons has not been served upon all the parties in sufficient time, an indorsement of a further time should be made on the original, and on a copy sealed for ser- vice, and such indorsements are to be sealed at the Judge's chambers, as directed by Order 6, 16th October, 1852. Order to amend usually Necessary. A summons originating proceedings in chambers is amended pursuant to an order for that purpose, made at the chambers of the Judge to whose Court the matter is attached. The order must be entered at the entering seat in the regis- trars' office, before it can be acted on in the Record and Writ Clerks' office. In what Cases an Order to amend is Dispensed with. If the summons has not been served, and the alteration re- quired involves merely the correction of the name of a person already named therein, or of a date or sum mentioned therein, the summons and duplicate may be altered without an order to amend. In any such cases the only requirement is, that the original summons with the alterations marked or authen- ticated at chambers, and a memorandum indorsed, and signed by the chief clerk, thus : — " Let the summons and duplicate be altered as within. , Chief Clerk " — shall be produced. And in such cases, any copy of the summons which may have been previously sealed for service may be altered, and will be re-sealed -n/ithout further fee. 318 AMENDKENT OF A REPLICATION. Amending the Bummons. When the order to amend (in cases where an order is required) has heen duly entered, and the original summons altered in accordance with the object and intentions of the parties under the authority of the order to amend, the alterations thus made in the original summons should be authenticated, or marked at chambers ; and such original sum- mons thus altered, together with the order to amend, should then be left with the Clerk of Records and Writs, who will copy the alterations or amendments from the original into the duplicate, and mark upon such duplicate, and in his Cause Book, the date of the amendment, and of the order to amend, in like manner as in the case of a bill or claim. No fee of Court is payable on amending the duplicate of the summons. Time for Amending. No time is limited for amending a summons. Service of Copy. A duly sealed copy of the summons, as amended, should, in all cases, be served ; and every such copy must be stamped either with a 5s. (higher scale), or a Is. (lower scale). Chancery fee fund stamp ; and upon presenting the copy for sealing, a prfficipe must be left with the officer. AMENDMENT OF REPLICATION. An order to amend a replication may be obtained by special application at chambers, or (by consent) as of course. The amendment, however, can only extend to the correction of an error in names, &c., or to the alteration of the requirements of the plaintiff respecting parties as against whom it has been filed, but not to add the names of defendants not previously included therein. To reply as to such defendants, application for leave to file another replication must be obtained. AMENDMENT OF BILL, ETC., FILED BEFOEE NOV. 2ND, 1853. 819 Amendment of a Bill oe Claim, filed before 2nd November, 1852. The amendment of bills or claims filed previously to the 2nd November, 1862, is governed by the former practice of the Court in reference thereto. — Order 12, 7th August, 1852. So that if two or more folios of amendment are to be intro- duced into any one part of any such record, a new engrossment must be made ; and, in the case of a bill, the engrossment must be stamped with either a 1/. (higher scale), or a 10s. (lower scale) Chancery fee fund" stamp; and, in the case of a claim, with a 5s. Chancery fee fund stamp. The order to amend must be produced to, or left with, the officer, at the time the amended bill or claim is presented for filing. If a new engrossment is not required, the amendments may be introduced into the original record, and for that purpose the draft of the amended bill, as signed by counsel, or of the claim, together with the order to amend, and a praecipe stamped with a 10s. Chancery fee fund stamp must be left with the officer. Notice of amendment of any such bill should be given to the defendant, or to his solicitors, on the day on which the amendment is made, in the manner directed by Orders 19 or 21, 26th October, 1842, and 2nd February, 1857. If a new engrossment has been filed, the notice may be in the following form, viz. : — No. 246. In Chancery. r. . I have this day filed an amended bill herein. Dated day of - To Mr. [N'ame of Defendant's [Name of Plaintiff' a Solicitor or Agent.] Solicitor or Agent.] If the amendments have been introduced into the original record, the notice may be in the following form, viz. : — 320 AMENDMENT OF BILL, ETC., FILED BEFORE NOV. 3ND, 1853. No. 247. In Chanceey. 1 have this day amended the bill herein. Dated day of . • To Mr. [Name of Defendant's [Name of Plaintiff's Solicitor or Agent.] Solicitor or Agent.] The order to amend should be served in the manner before directed, see p. 303. If a further answer is required to the bill, or if a new party is made defendant, a subpoena to appear and answer must be issued and served. — Order 13, 7th August, 1853. And the defendant's time for answering is governed by the General Orders of 8th May, 1845, viz., six weeks from service of subpoena to answer, by a newparty — also six weeks from notice of amendment by a party who had not answered, and whose time for answering the original bill had not elapsed, when notice of amendment was served — and four weeks by a party who has answered the original bill, and from whom an answer to the amended bill is required — and eight days from notice of amendment, in cases where the plaintiff amends without requiring a further answer. If a new engrossment of a bill is filed, an office copy thereof must be taken by the defendant. If the bill is amended without a new engrossment, the office copy which may have been taken of the original biU should be left at the Record and Writ Clerks' office, for the purpose of having the amendments inserted therein, and for which no fee is payable. Every party made defendant to a bill, filed before Michael- mas Term, 1853, must be required to appear and answer, or be bound by the proceedings upon service of a copy of the bill. Upon the amendment of a claim, whether by a new engross- ment, or otherwise, a new writ of summons should be issued and served. PART V. PRELIMINAEY NOTE. In what Cases it is Necessary to Enter an Appearance. A defendant, or a party to a summons originating proceed- ings in chambers, required to appear, must enter an appearance at the Record and Writ Clerks' office before he can be heard in court or in chambers, or properly take any other step in the cause («). Where Process to Appear has been irregularly Served. If process to appear has been irregularly served, and if the defendant wishes to apply to the Court to set aside any process of contempt which may have been issued to compel the entry of an appearance or otherwise in reference to the irregularity, he should enter with the Registrar what is termed a " condi- tional appearance," andnot an appearance in the ordinary way with the Clerk of Records and Writs ; for an appearance entered with the latter would operate as a waiver of the irre- gularity. Appearance — By a Married Woman. A married woman made a party defendant together with her husband, may enter an appearance for herself alone, without (a) It appears that if a defendant, who happens not to have entered an appearance at the Becord and Writ Clerks' office, has appeared in court b; counsel, and by the order made on the occasion all further proceedmga are stayed, the subsequent formal entry of an appearance at the Eecord and Writ Clerks' office is unnecessary. See Beits t. Barton, 3 Jurist, N. S., 154. The point of the case cited is indicated in the foregoing recital, by italics. For if the proceedings were to be continued, a formal appearance must surely be entered, otherwise, how could seryice of notices, &c., be duly effected 1 7 323 PRACTICE AS TO ENTERING APPEARANCES. order; and even in cases where it is intended to obtain an order to answer separately, the appearance may be thus entered before obtaining such order. Appearance — By an Infant, or a Person of Unsound Mind. An appearance may be entered for a defendant who is an infant before a guardian ad litem is appointed ; such guardian must, however, be appointed before any other step can properly be taken in the cause on behalf of the infant. The same observation applies to the case of a person of unsound mind not found so by inquisition. Appearance — By a Person Defending in Forma Pauperis. A defendant intending to defend the suit in forma pauperis, usually enters an appearance and pays the fee, before he peti- tions for the order to defend in forma pauperis. However, in cases where an appearance has been already entered at the instance of the plaintiff, and even in other cases too, the defen- dant may present his petition for the order to defend in formS, pauperis, and afterwards enter his appearance; and if the order to defend in form4 pauperis is produced to, and left for entry with, the officer, at the time the appearance is entered, such appearance will be accepted without payment of the usual fee being required. Where a Party has been Served with a Subpoena to Name a Solicitor. Where a party has been served with a subpoena to name a solicitor, on naming such solicitor it is sufficient if the fol- lowing form of notice be given to the Clerk of Records and Writs :— No. 848. In Chancery. I hereby give you notice, that I am now concerned as solicitor for the defendant [or, plaintiff], , who has been served with a subpoena to name a solicitor in this cause. [Name, 8fc., of the Solicitor.] To the Clerk of Records and Writs. PEACTICK AS TO ENTERING APPEARANCES. 323 Notice of such nomination should likewise be given to the plaintiff's solicitor. Where a Party has been Served mith Notice of Decree. An appearance is not to be entered by a party served with notice of decree, under the 42nd section of the Act 15 & 16 Vict. c. 86. If any party thus served wishes to attend the proceedings, an order, giving him liberty so to do, may be obtained, as of course, under the provisions of the 8th Rule of the 42nd section of the Act before referred to, and of the General Orders, 1st June, 1854. Such order, when served upon the parties to the suit, entitles the party in whose favour it has been made, to notice of all the proceedings ; and the production of such order, on any proceeding, sufficiently authorises the attendance of such party. If the party wishes to attend any proceeding in chambers, a copy of such order, certified by the solicitor, is to be left at chambers. — See Regulation 8, 8th August, 1857. Appearance — After Decree. An appearance cannot be entered by a defendant after decree, except by special leave of the Court. The application is by notice of motion for liberty to enter an appearance, and to attend the proceedings ; he, the defen- dant, submitting to be bound by the decree and proceedings already had. The order thus obtained must be produced to the officer at the time the appearance is left for entry. If the plaintiff will consent, the order may be obtained upon petition as of course. How an Appearance Entered for a Defendant by Mistake, may he Corrected. Where an appearance has been entered for a defendant hy mistake, if no proceeding has been subsequently taken thereupon, such appearance may be withdrawn. The following form of request and consent must, however, be left with the Clerk of Records and Writs. Y 2 324' APPEAKANCE — WHEEE ENTERED BY MISTAKE. No. 249. In Chanceey. I hereby request that you will withdraw the appearance entered in this cause for the defendant , on the day of , the same having been entered by mistake. Dated this day of , {Name, 8fc., of the Defendant's Solicitor.'] I consent to the above. [Name, 8fc., of the Plaintiff's Solicitor.'] To the Clerk of Records and Writs. If any subsequent proceedings have been taken upon the appearance, either an order of the Court must be obtained to warrant its withdrawal, or any other solicitor coming into the cause for such defendant must obtain an order to change. Sow an Appearance Entered hy a Solicitor, as " Agent," hy Mistake, may he Corrected. If an appearance has been entered by a solicitor as agent, hy mistake, and no subsequent proceeding has been taken thereupon, the error may be corrected, by leaving the following form of request and consent with the Clerk of Records and Writs, viz : — No. 350. In Chanceby. I hereby request that you will alter the prsecipe for the appearance entered in this cause for the defendant , on the day of , by striking out the name and address of John Jones, as solicitor for the said defendant , the same having been entered by me, as agent for the said John Jones, by mistake. Dated this day of . [Name, 8fc., of the Defendant's Solicitor.] I consent to the above. [Name, 8fc., of the Plaintiff's Solicitor.] To thft Clerk of Records and Writs. APPEARANCE — ENTERING — TIME FOE ENTERING. 325 If any subsequent proceeding has been taken upon the appearance thus entered, either a special order of the Court, or an order to change solicitor, must be obtained. How an Appearance Entered by a Solicitor as being " Properly concerned," by Mistake, may be Corrected. The last Form, (No. 250), will be a sufficient guide for the correction of the error in cases where the appearance has been entered by a solicitor, as being " properly concerned," instead of as " agent" only, if so entered by mistake, and no subsequent proceeding has been taken thereupon. Entering the Appearance. Directions applicable to several distinct cases are appended to the forms of praecipes which follow these observations. It is unnecessary, therefore, in this place, to set forth any official requirements other than such as are of general application. Upon entering an appearance, a praecipe, in accordance with such of the forms as may be applicable to the case, must be left with the officer. Any number of defendants may be named in one praecipe, but the following requirements, with reference to the fees pay- able in respect thereof, must be attended to. If the prsecipe contains one, two, or three names, a 7s. Chancery fee fund stamp, must be impressed thereon. If more than three, but not exceeding six, a fee of 14s. will be required. And so in respect of any three additional names.^Schedule 3, Order, 30th January, 1857. In entering appearances, husband and wife are regarded as one — corporate bodies are also regarded as one. Where a solicitor is himself a party defendant, and is also concerned as solicitor for other defendants, the appearance entered for himself must be entered upon a separate praecipe. The names of the defendants must be set forth in the praecipe, even though the solicitor appears for all the defendants. Where the Time for Appearing expires on a Day on which the Offices are closed. If the last day of the time limited for appearing happens on a Sunday, or other day on which the offices are closed, the appearance will be considered as duly entered, if entered on the day on which the offices shall next open. Order 13, 8th May, 1845. 336 APPEAEANCE — ENTEBING — NOTICE OF ENTRY. Times of Vacation. The times of vacation are included in the computation of the time allowed for appearing. Entering a Voluntary Appearance. A defendant, or other party required to enter an appearance, may voluntarily enter such appearance, immediately the bill, or other proceeding to which he is required to appear, is filed. Notice of Entry of Appearance to he given. When any solicitor or party shall cause an appearance to be entered, he is, on the same day, to give notice thereof to the solicitor of the adverse party, or to the adverse party himself, if he acts in person. — Order 23, 26th October, 1842. Such notice may be in the following form : — No. 251. In Chanceet. I have this day entered an appearance in this cause for the defendant . Dated this day of . {Name and Address of the Solicitor or Party.} To Mr. {Name of Plaintiff's Solicitor or Agent.} Further information respecting appearances to bills, and several other kinds of proceedings, including information as to entering appearances by the plaintiff upon the defendant's de- fault, will be found in the observations which follow the Forms of Praecipes. For the mode of proceeding to compel the appearance of a , defendant, see the observations appended to the Forms of Indorsements on Attachments for not appearing. See also observations under title " Eeturns to AVrits." APPEARANCE FORMS OF PRiECIPES. 327 APPEARANCE— ENTERED BY THE DEFENDANT. Forms of Precipes. No. 252. To Bill, Amended Bill, Supplemental Bill, Claim, Special Case, General Summons, Order to Revive, or Supplemental Order. In Chancery. Enter an appearance for to bill [m% claim, as the case may he], at the suit of . Dated this day of . [Nam^ and Address of the Solicitor or Party. 1 No. 253. To an Administration Summons. In Chancery. Re , deceased. Enter an appearance for , to an adminis- tration summons at the suit of [name of the appli- cant]. Dated this day of . \Name and Address of the Solicitor or Party.] Z} No. 254. Special Appearance. In Chancery. The defendant appears to the bill, for the purpose of being served with notice of all the proceedings in this cause. Dated this day of . [Name and Address of the Solicitor or Party-] Z) 328 APPEARANCE — TO ORIGINAL OR AMENDED BILLS. Practical Directions, &c. Appearance — To an Original or Sitpplemental Bill, or to a Bill of Revivor. A defendant served with a copy of the bill is to appear thereto within eight days after such service. — ^Article 3, Order 16, 8th May, 1845. Or within such other time as, by special leave, may have been inserted in the indorsement on such copy. As to the entry of the appearance in cases where the last day of the time limited expires on a day on which the ofl&ces are closed (see p. 325), and as to the entry of an appearance voluntarily, see p. 326. It may be mentioned that an appearance will be accepted at the Eecord and Writ Clerks' ofl&ce at any time, and (except in cases where the appearance is entered after decree) without order. To an Amended Bill — In what cases the Entry of an Appearance is Required. An* appearance to an amended bill is required in the following cases, viz. : 1. Where the defendant has not appeared to the bill before it was amended. 2. Where the defendant, although having appeared to and answered the original bill, is required to answer the amended bill (a). 3. Where a defendant, who was not required to answer the original bill, and whether he has voluntarily answered such bill or not, is required to answer the amended bill (a). 4. Where after a demurrer is allowed, the plaintiff amends the bill requiring an answer. 5. As to cases where a Defendant is required to answer exceptions for inmffldeney and amendments at the same time, the following observations are submitted : Under the former practice of the Court, an appearance to an amended bill was not required in cases where the plaintiff amended the bill after exceptions for insufficiency submitted to or allowed, and the defendant was required to answer the (o) The plaintiflE's intention to call for an answer to an amended bill is indicated ty tlie service of a duly sealed and indorsed copy of snch 1)111. APPEARANCE — TO SUPPLEMENTAL BILL — CLAIM. 329 exceptions and amendments at the same time. And in cases where the plaintiff can amend the interrogatories already filed, an appearance may still be unnecessary. But if a new set of interrogatories are to be filed for the examination of the defendant in answer to the amendments, as the time for filing such interrogatories can only be limited by limiting the time for appearing, an indorsed copy of the amended bill must be served, and a defendant thus served must appear to the amended bill, pursuant to the requirement in the indorsement on such copy. Appearance — To a Supplemental Bill or Bill of Revivor, An appearance to a supplemental bill, or bill of revivor, is subject to the same regulations as an appearance to an original bill. Appearance — To a Claim. A defendant to a claim, is to enter his appearance within eight days after the service upon him of a duly sealed copy of the claim, or within such other time as, by special leave, may have been inserted in the indorsement on such copy. If a defendant makes default in appearing to a claim, an appearance cannot be entered for such defendant at the instance of the plaintiff — nor can the plaintiff compel the entry of an appearance by the defendant. Indeed, any such pro- ceeding by the plaintiff is unnecessary, inasmuch as the defendant's liabilities (which involve the plaintiff's rights) are fully shown in the indorsement on the copy of the claim served. The plaintiff can proceed to a hearing of the claim without the appearance of the defendant, but in such case he must be prepared with an office copy of the affidavit of due service of the claim. An appearance to a claim may be entered at any time before the claim is heard. After the claim is heard, and an order or decree is made thereon, an appearance cannot be received except under the authority of an order, which may be obtained as shown on p. 323. But if, after decree, any parties are summoned to attend the proceedings, appearances will be accepted from such parties, at any time, and without order. 330 APPEAEANCE — TO SUMMONS — OEDEE TO EEVIVE. Appearance — To an Amended Claim. An appearance is, in all cases, required to an amended claim. Appearance — To a " Special Case." All the parties named as defendants to a special case, must enter their appearances before any application can be made to the Court with reference to such case. Proceedings cannot be taken to enforce the appearance of any defendant to a special case, nor can an appearance be entered at the instance of the plaintiff. If a special case is amended, appearances must again be entered for all the defendants. Appearance — To a Summons Originating Proceedings in Chambers. In all cases where proceedings originate in chambers, the parties served (with the summons) are, before they are heard in chambers, to enter appearances in the Kecord and Writ office, and give notice thereof.— Order 7, 16th October, 1853. There is no limitation of time, other than the time fixed for an attendance upon the hearing of the summons, within which to enter an appearance to a summons. The appearance cannot be enforced, nor can the plaintiff or applicant enter an appearance by default. The liabilities upon default of the party required to appear are sufficiently shown in the note at the foot of the copy of the summons served upon him. But in case of default in appearance, the applicant should be prepared with an affidavit of due service of the summons. Appearance — To an Order to Revive, or Supplemental Order. Section 53 of the Act 15 & 16 Vict. c. 86, after stating how an order to revive, or supplemental order, is to be obtained, provides, that " an order so obtained, when served upon the party or parties, who according to the (then) present practice of the Court would be defendant or defendants to a bifl of revivor, or supplemental bill, shall be binding," &c. " And such party or parties shall thenceforth become a party or parties to the suit, and shall be bound to enter an appearance thereto in the office of the Clerks of Records and Writs, within such time and in like manner as if he or they had been duly served with process to appear to a bill of revivor, or supplemental bill, filed against him." See the section referred to, fully set forth under title " Order to Revive." APPEARANCE TO SUPPLEMENTAL STATEMENT. 331 Notwithstanding the precise language of the provisions re- ferred to, it has been decided in a case ( Ward v. Cartioright, Jurist, 1853, No. 868), and the practice has hitherto been, not to enter an appearance to an order to revive, or supplemental order, for any party who has already appeared in the cause. But for newly named parties appearances are to be entered. In all cases where an appearance may be entered, such appear- ance wiU be accepted at any time. It may be observed that the practice which has obtained with respect to the entry of an appearance to an order to revive, or supplemental order, does not prejudicially affect the order itself, the absoluteness of any such order being dependent upon the service of the order, and not upon the appearance of the party upon whom it has been served — for such orders become absolute at the expiration of twelve days from the service thereof; or, in the case of any person under disability, other than disability of coverture, at the expiration of twelve days after the appointment of a guardian ad litem. — 15 & 16 Vict. c. 86, s. 52, and Order 43, 7th August, 1852. The practice does not provide that such orders shall be entered in the cause books kept by the Clerks of Becords and Writs, but as appearances to such orders are " to be entered in the oflSce of the Clerks of Records and "Writs," and as no such appearance can be entered unless and until the names of the parties to the order are entered in the cause books kept by the Clerks of Records and Writs, either the original order or a copy thereof should be left at the Record and Writ Clerks' office for entry, either before or at the time the appearance is entered. Appearance — To a Supplemental Statement. " Such proceedings, by way of answer, evidence, and other- wise, are to be had and taken upon a supplemental statement, as if the same were embodied in a supplemental bill." — Order 44, 7th August, 1852. Therefore, if the plaintiff requires an answer to the state- ment he must file interrogatories, and the time for filing the interrogatories can only be fixed by serving a copy of the state- ment, with an indorsement limiting a time for appearing ; and even if the plaintiff does not require an answer to the statement, the defendant may volunteer one, consequently the time for appearing must be fixed, because the time for filing a voluntary answer is fixed by the entry of the defendant's appearance. In any, case, therefore, an appearance to a supplement state- ment is necessary. 332 APPEARANCE—" SPECIAL " AND " COMMON.' Appearance— By a Party Served with a Copy of a Bill, and to he thereupon Bound hy the Proceedings in the Cause. "Common'' Appearance. Where a party served with a copy of the bill under Order 33, 26th August, 1841 (and Article 2 of Order 16, 8th May, 1846), desires the suit to be prosecuted against himself in the ordinary way, he is entitled to have it so prosecuted, — and in that case he is to enter an appearance in the common form, and the suit is to be prosecuted against him in the ordinary way, but the costs occasioned thereby are to be paid by the party so appear- ing, unless the Court otherwise directs. — Order 26, 26th Au- gust, 1841. " Special" Appearance. Where a party, thus served with a copy of the bill, desires to be served with a notice of the proceedings in the cause, but not otherwise to have the same prosecuted against himself, he is at liberty to enter a special appearance under form No. 254 (see p. 327) ; and thereupon the party entering such appearance is entitled to be served with notice of all proceedings in the cause, and to appear thereon ; but the costs occasioned thereby are to be paid by the party entering such appearance, unless the Court shall otherwise direct. — Order 27, 26th August, 1841. Tim£ Within which the "Common " or "Special" Appearance is to be Entered. No party is to enter either a common or special appearance under the 26th or 27 th of the orders of the 26th August, 1841, after the expiration of twelve days from the service of the copy of the bill, without first obtaining an order of the Court for that purpose, such order to be obtained on notice to the plain- tiff, and to be granted, if the Court thinks fit, upon such terms as are just; and any party so entering such common or special appearance, is bound by all the proceedings in the cause prior to such appearance being entered, unless the Court otherwise directs. — Order 37, 8th May, 1845 ; see also Article 5 of Order 16 of the same Orders. APPEARANCE BY THE PLAINTIFF. 333 APPEARANCE— ENTEKED AT THE INSTANCE OF THE PLAINTIFF. Form of Precipe. No. 255. To Bill, Amended Bill, Bill of Revivor, or Supplemental Bill. In Chancery. Enter an appearance at the instance of the plaintiff for the defendant , at the suit of . Dated this day of . [_Name and Address of Plaintiff's Solicitor or Agent.] Practical Directions. Entry of Appearance hy the Plaintiff. For a Defendant, (not being an Infant, or a Person of Weak or Unsound Mind,) who has been Served Within the Jurisdiction of the Court. If any defendant, not appearing to be an infant, or a person of weak or unsound mind, unable of himself to defend the suit, is, when within the jurisdiction of the Court, duly served with a copy of the biU, and refuses or neglects to appear thereto within eight days after such service, the plaintiff may, after the expiration of such eight days, and within three weeks, from the time of such service, apply to the Record and Writ Clerk to enter an appearance for such defendant ; and, no appearance having been entered, the Record and Writ Clerk is to enter such appearance accordingly, upon being satisfied by affi- davit (a) that the copy of the bill was duly served upon such defendant personally, or at his dwelling-house or usual place of abode.— Order 29, 8th May, 1845. After the expiration of such three weeks, or after the time (a) An office copy of the affidarit must be produced to or left with the o£5oer at the time the appearance is left for entry. 834 APPEARANCE BY PLAINTIFF — FOE INFANT, ETC. allowed to such defendant for appearing has expired, in any case in which the Eecord and Writ Clerk is not by Order 29, 8th May, 1845, required to enter such appearance, the plaintiff may apply to the Court for leave to enter such appearance for such defendant; and the Court being satisfied that the sub- poena was duly served, and that no appearance has been entered for such defendant, may order the same accordingly. — Order 39th, 8th May, 1845. The application to the Court is made by motion exparte, and must be supported, as to the service, by an office copy of the affidavit of service of the copy of the iill, and, as to the fact that no appearance is entered, by a certificate to that effect from the Clerk of Records and "Writs. Such certificate should be dated as of the day on which the motion is to be made(fl!), so that the evidence as to default may be brought down to the latest possible moment. Any appearance entered at the instance of the plaintiff for a defendant who, at the time of the entry thereof, is an infant or a person of weak or unsound mind, is irregular and of no validity.— Order, 30, 8th May, 1845. Appearance hy the Flamtiff—Fiyr an Infant, or a Person of Weak or Unsound Mind. If, upon default made by a defendant in not appearing to, or not answering a bill, it appears to the Court that such defendant is an infant, or a person of weak or unsound mind not so found by inquisition, so that he is unable of himself to defend the suit, the Court may, upon the application of the plaintiff, order that one of the solicitors of the Court be assigned guardian of such defendant by whom he may appear to and answer, or may answer, the bill, and defend the suit. But no such order is to be made, unless it appears to the Court on the hearing of such application, that the copy of the bill was duly served, and that notice of such application was, after the expiration of the time allowed for appearing to, or for answering, the bill, and at least six days before the hearing of the apphcation, served upon, or left at the dwelling-house of, the person with whom or under whose care such defendant was at the time of serving such copy of the biU, and (in the case of such defendant being an infant not residing with, or under the care of his father or guardian), that notice of such application was also served upon, or left at the dwelling-house of the father or guardian of such infant, unless the Court at (a) It should, however, be bespoken on the day before. APPEARANCE BY PLAINTIFF — ON SERVICE ABROAD. 335 the time of hearing such application thinks fit to dispense with such last-mentioned service. — Order 32, 8th May, 1845. The Solicitor to the Suitors' Fee Fund is the person usually appointed to act as such guardian. Any such defendant if residing out of the jurisdiction, may. he served under the provisions of Order 33, 8th May, 1845, and upon proof of such service, the Court will order that the Soli- citor to the Suitors' Fee Fund he appointed guardian, by whom such defendant may appear, and answer, and defend the suit. Appearance hy the Plaintiff — For a Defendant Served, Pursuant to Leave, Out of the Jurisdiction. Where any defendant in any suit is out of the jurisdiction of the Court, the Court, upon application supported by such evidence as shall satisfy the Court in what place or country such defendant is or probably may be found, may order that the copy of the bill may be served upon such defendant, in such place or country, or within such limits as the Court thinks fit to direct. Such order is to limit a time (depending on the place or country within which the copy of the bill is to be served), after service of the copy of the bill, within which such defendant is to appear to the bill, and also (if an answer be required), a time after service of interrogatories within which such defen- dant is to plead, answer, or demur, or obtain further time to make his defence to the bill {a). At the time when the copy of the bill and interrogatories (if any) are served, the plaintiff is also to cause such defendant to be served with a copy of the order, giving the plaintiff liberty to serve the bill, &c. And if, upon the expiration of the time for appearing, it appears to the satisfaction of the Court that such defendant was duly served with the copy of the bill, and a copy of the order, the Court may, upon the application of the plaintiff, order an appearance to be entered for such defendant. — Order 33, 8th May, 1845. The foregoing recital of Order 33, is in accordance with the present practice of the Court, aU orders now made under Order 33, being adapted to such practice. Where the Court has given the plaintiff leave to enter an appearance, upon proof of permitted service out of the juris- diction, the Court may proceed upon such service as fully and (a) If an answer is not required ty the plaintiff, it is suggested that the time for filing a volmitary answer should be specified in the order. 336 APPEARANCE BY PLAINTIFF — ABSCONDING DEFENDANT. effectually as if the same had been made within the iurisdiction of the Court. See 4 & 5 Will. 4, c. 83, s. 1. Appearance hy the Plaintiff— For an Absconding Defendant. In case it appears to the Court, by sufficient evidence, that any defendant, against whom process to appear has issued, has been within the jurisdiction of the Court, at some time not more than two years before the process was issued, and that such defendant is beyond the seas, or that upon inquiry at his usual place of abode (if he had any), or at any other placeor places, where at the time when the process was issued he might probably have been met with, he could not be found so as to be served with process, and that in either case there IS just ground to beheve that such defendant is gone out of the realm, or otherwise absconded to avoid being served with process, then, and in such case, the Court may order that such defendant do appear at a certain day to be named in the order (a); and a copy of such order, together with a notice thereof, to the effect set forth at the foot hereof, may, within fourteen days after such order made, be inserted in the " London Gazette," and be otherwise published as the Court directs ; and in case the defendant does not appear within the time limited by such order, or within such further time as the Court appoints, then on proof made of such publication of the afore- said order, the Court maj' order an appearance to be entered for the defendant on the application of the plaintiff. Notice. — " A. B., Take notice, that if you do not appear (a) (a) And, query, should not a time for answering also be limited by the order ? The proceeding under Order 31, for leave to enter an appearance against an absconding defendant is evidently intended as preliminai7 to the proceeding under Order 79, for an order to take the bill pro confesso for want of answer against such a defendant ; and, inasmuch as in suits instituted since the Ist day of November, 1852, the time for answering is not to be reckoned from the date of the entry of an appearance, it seems to be necessary that the time for answering, as well as the time for appearing, should be limited by any order made pursuant to the provisions of Order 31, 8th May, 1845. Otherwise, if a time for answering be not limited, the time for answering cannot be said to have elapsed. Consequently, a practical difficulty might arise in making an order to take the bill pro confesso for wamt of answer. The provisions of Order 31, 8th May, 1845, though in imitation of the provisions of sec. 3 of the Act of 1st Will. 4, c. 36, do not, however, extend so far as the provisions of such section. Under sec. 3 of that Act, the plaintiff may not only enter an appear- ance against an absconding defendant, but he may also, under the same section, proceed to obtain an order to take the bill pro confesso for want of appearamce against any such defendant. Whereas, under the provisions of Order 31, 8th May, 1845, an appearance only can be entered against an absconding defendant, and under Order 79 of the same orders, the plaintiff may proceed to obtain an order to take the bill pro confesso for want of answer against a defendant for whom an appearance has been thus entered. APPEARANCE BY THE PLAINTIFF. 337 pursuant to the above order, the plaintiff may enter an appear- ance for you, and the Court may afterwards grant to the plain- tiff such relief as he may appear to be entitled to on his own showing."— See Order 31, 8th May, 1845. Appearance for a Married Woman, Peer, or Corporation. Under the provisions of the General Orders, 8th May, 1845, an appearance may be entered at the instance of the plaintiff as against a married woman, although made a party defendant together with her husband — also as against a peer, or person having privilege of Parliament, or a corporate body. For Ser Majesty's Attorney -General. The Court will not make a special order, directing the Attorney-General to enter an appearance. In all cases where an appearance is entered, either at the instance of the plaintiff, or otherwise, pursuant to special order of the Court, such order must be produced to the officer at the time the prsecipe for the appearance is left for e;itry. "Where an appearance is entered by default, notice of such entry is not required. In most instances, a notice that an appearance may be entered by the plaintiff, upon the defen- dant's default, is given in the indorsement on the copy of the bill served. Appearance by a Defendant for whom the Plaintiff has entered an Appearance by Default. A defendant, notwithstanding that an appearance may have been entered for him by the plaintiff, may afterwards enter an appearance for himself in the ordinary way ; but such appear- ance by such defendant is not to affect any proceeding duly taken, or right acquired by the plaintiff, under or after the appearance entered by him, or prejudice the plaintiff's right to be allowed the costs of the first appearance. — Order 36, 8th May, 1845. Sow an Appearance intended to be entered at the instance of the Plaintiff, but entered otherwise by mistake, may be corrected. If a plaintiff, intending to enter an appearance for a de- fendant by default, has, by mistake, entered such appearance in the ordmary way, viz., as being concerned for such defendant, 338 APPEARANCE — BY THE PLAINTIFF. the appearance thus entered by mistake may be withdrawn, and an appearance at the instance of the plaintiff entered in its stead. The course of proceeding is as follows : — If the mistake is discovered before the expiration of three weeks from the service of the copy of the bill, and no proceedings have been taken thia"eupon, and the defendant, for whom the appearance has been thus, entered, wiU con- sent, the appearance may be withdrawn, upon a request from the solicitor to the Clerk of Records and Writs; and (if the defendant has not meanwhile entered an appearance) an appearance, at the instance of the plaintiff, may then be entered upon the affidavit of service. The request and consent may be in a form similar to the Form given on p. 324. If the mistake is not discovered and corrected before the expiration of such three weeks, or the defendant will not consent, and it is nevertheless desired to withdraw the appear- ance, an order must be obtained. In Martina. Patching — 1856, M, No. 123 — an order was made by the Master of the Bolls at chambers, dated the 4th March, 1857, in the following Form, viz. : — ' Upon the application of the plaintr&, and of ■ tiieir solicitor, and upon hearing the solicitor for the applicants, and upon reading an affidavit of (a), and an affidavit of {b). It is ordered that the said , the solicitor for tiie plaintifis, be at liberty to withdraw the appearance entered by him in this cause on the day of , on behalf of the defendants , to the bill filed by the plajntilfe in this cause, the same having been entered by mistake. And it is ordered that the plaints be at liberty to enter an appearance for iihe said defendants , to the said biU." (a) THs was an affidavit by tlie plaintiff's solicitor, explanatory of the miBtake. n) This was an aflfelaTit of serviee of the summons on the defondantB concerned. Qwi Inasmnoh as, on the appUcation ifSssasA. to, leave was ^Ten to enter an apiw"; ^oeby defenlt, should not the affidavit of service of the biU have heen hkewise repited ! PART VI. AND Peeliminaey Note. Formal Contents of Affidavits. All affidavits to be used in the Court of Chancery must be headed " In Chancery," and must be intituled in the cause or matter to which they relate. The full title of the cause or matter should be set forth. The name, address, and description of the deponent must be set forth. But where the deponent is a party plaintiff or defendant in the suit, such address, &c., is not required. All affidavits are to be taken and expressed in the first person of the deponent. And any solicitor, party, or person filing an affidavit not taken and expressed in the first person of the deponent, is not to be allowed the costs of preparing and filing such affidavit, in any taxation of costs. — Orders 126 and 128, 8th May, 1845. Every affidavit to be used in the Court of Chancery is to be divided into paragraphs, and every paragraph is to be numbered consecutively, and, as nearly as may be, is to be confined to a distinct portion of the subject. — 15 & 16 Vict. c. 86, s. 37. All affidavits, whether to be used at the hearing of a cause, or on any other proceeding before the Court, are to state dis- tinctly what facts or circumstances deposed to are within the deponent's own knowledge, and his means of knowledge, and what facts or circumstances deposed to are known to or believed by him by reason of information derived from other sources than his own knowledge, and what such sources are. — Order 8, I 2 ^^^ PEEPAEATION OF AFFIDAVITS. 13th January, 1855. The costs of affidavits not framed in contormity with the preceding order are to be disallowed on taxation, unless the Court otherwise directs.— Order 9, 13th January, 1855. Preparation of Affidavits. Sow to he Written. Affidavits should he written on foolscap paper. They will not, however, he refused if written on other kind of paper ; nor will an affidavit be refused if lithographed. Except as men- tioned in the next paragraph, dates and sums occurring in affidavits must be written in words at length, and not in figures. As to Quotations. Quotations may, of . course, contain figures ; hut every quo- tation should he indicated by being placed between inverted commas. Erasures not allowed. No erasures are allowed. If any alteration is made by erasure, either the affidavit must be re-copied and re-sworn, or the words written on the erasure must be struck through with a pen, and interlined upon a part of the paper where there is no erasure, and the affidavit must be re-sworn. Alterations to be authenticated. Every alteration in an affidavit {a) must be marked with the initials of the commissioner or other person before whom the affidavit is sworn. Such initials may be placed in the margin over against the line in which the alteration occurs ; or they may be placed at the commencement and termination of the alteration itself. An affidavit with any alterations not so marked, will not be filed, unless the solicitors of all parties, as against whom the affidavit is to be used, will consent. Such consent, if given, should be indorsed on the affidavit, and may be in the following form : — No. 256. We consent to this affidavit being filed, notwithstanding the alterations in the and paragraphs are (o) Or in an account, Terified by affidarit, to be left at chambers. — ^Begnlation 10, Sth August, 1857. PEEPARATION OF AFFIDAVITS. 341 not marked by the commissioners before whom it was sworn (a). [^ames of the Solicitors Consenting.^ The like form of consent may be used where it is given, " notwithstanding an error in the title " of an affidavit. As to Scheduks. Schedules referred to in an affidavit, as " hereunder vyritten" should be placed after the jurat — and the commissioner, or other person before whom the affidavit is sworn, must sign his name at the end of each schedule. If the schedules are placed before the jurat, they should not be referred to as " hereunder written," but as " the schedule or first schedule [as the case may be] set forth in this my affidavit." If a schedule is embodied in the affidamt, such schedule should be referred to in the paragraph as " consists of the following particulars," or " of which the following is a true and correct list or schedule," or " as follows," or in such other language as may best agree with the statement of the deponent. A.S to Exhibits or Documents referred to in an Affidavit. A document referred to in an affidavit, may be referred to either as an exhibit, thus, " produced and shown to me at the time of swearing this my affidavit and marked with the letter A," or, as "hereunto annexed" (ft). If " produced and shown," the document is not to be filed with the affidavit. If " hereunto annexed," the affidavit cannot properly be filed without it. Where the document is referred to as being produced and shown to the deponent, the commissioner before he signs the memorandum as to the production, should inquire of the depo- nent whether he has seen the document. No such inquiry is needful where the document is referred to as "hereunto annexed," but such document should be annexed at the time the affidavit is sworn. Any document thus referred to, whether as " produced and shown," or as "hereunto annexed," must be distinguished with, or identified by, a letter, or number, or other distin- guishing mark. The affidavit, verifying a receiver's account as passed, is tq (a) It is desirable, if it can conTenJently be done, that the particnlar alteration to which the consent applies, should be in some manner described or specified. (6) But if the evidence furnished by the afftdavit is to be used at chambers, then "accounts, extracts from parish registers, particulars of creditors' debts, and other documents referred to by the affidavit are not to be referred to as annexed but as exhibits."— Kegulation 11, 8th August, 1857. 342 PBEPAEATION OF AFFIDAVITS. refer to it as an exhibit, and not to be ?innexed to it. — Order 31, 16th October, 1853. As to the Jurat, and the Signature of the Deponent. The jurat may be written on either side of a page, or in the margin ; not, however, on a page upon which no part of the statements in the affidavit appears — and care must be taken that the place at which the affidavit is. sworn, including the name of the county, is correctly set forth. The style or designation of the commissioner or other person before whom an affidavit or other document is sworn must be set forth at length — for instance, " a London Commissioner to administer oaths in Chancery," not " a London Commissioner &c." only. It is not, however, essential that the style or desig- nation of the commissioner should be in his own hand- writing. The deponent must sign his name, or make his mark, at the side of the jurat, not underneath it^and the commissioner or other person before whom the affidavit is sworn must sign his name and full designation to the jurat, and if there are sche- dules, his name only to each schedule (a). Where the Affidavit has hem Prepared or Settled hy Counsel. Expenses incurred in consequence of affidavits being pre- pared or settled by counsel are to be allowed only when the Taxing Master thinks that such . expenses were properly in- curred — and in such case the Taxing Masters are tio be at liberty to allow the same or such parts thereof as they may consider just and reasonable, whether the taxation be between solicitor and client or between party and party. — Order 11, 1st June, 1854. Where an Affidavit is Improper or of Unnecessary Length. If an affidavit is improper or of unnecessary length, the Court may declare it to be improper or of unnecessary length, or may direct the Taxing Master to ascertain what parts or part thereof are or is improper, or of unnecessary length, and may direct the Taxing Master to ascertain the costs occasioned to any party thereby, and may make such order as is just for the payment, set-off, or other allowance of such costs. — Order 132, 8th May, 1845. (a) To an answer neither the defendant nor the commissioner need sign Ms name more than once; but schedules are usually, and adrisedly, signed both by the defendant and by the commissioner. A jurat to an answer may be placed either at the commencement or at the end of the answer. SWEARING TO AFFIDAVITS. 343 SWEAEING TO AFFIDAVITS. Mode of Administering the Oath. A Christian swears on the Holy Evangelists — a Jew upon the Pentateuch, or Five Books of Moses. A complete Tfistament need not be used in either case. A Christian, in making oath, holds the book in his right hand, the hand being uncovered, and, in the case of a male person, the head being uncovered also. A Jew, in making oath, holds the book in his right hand, the hand being uncovered, but the head covered. If, however, the Jew wishes to make oath with his head uncovered, the commis- sioner cannot object to it. In what Places, and before whom, Affidamits may he Sworn. Afl&davits may be sworn and taken at the places and before the authorities hereinafter mentioned, that is to say, — In London, or mthin ten miles thereof, — before a Clerk of Records and Writs, or before the Clerk of Inrolments in Chancery. — Order 7, 26th October, 1842 ; — or before " a London Com- missioner to administer oaths in Chancery " (appointed under the Act 16 & 17 Vict. c. 78). In any place ten miles, or more than ten miles from Lincoln's Inn, but within the jurisdiction of the Court, — before " a Commis- sioner to administer oaths in Chancery in England." In Scotland, Ireland, or the Channel Islands, or in any place in Foreign parts under the dominion of Her Majesty,— ^'beiove any judge, court, notary public, or person lawfully authorised to administer oaths in any such place. — 15 & 16 Vict. c. 86, s. 22 («). In Foreign parts out of the dominion of Her Majesty, — before any consul, or vice-consul — 15 & 16 Vict. c. 86, s. 22, — or other British minister abroad, but only. in the country or place in which he exercises his functions as such • minister. — 18 & 19 Vict. c. 42. Under sec. 22 of the Act 15 & 16 Vict. c. 86, the judges and other officers of the Court of Chancery are tp take judicial notice of the seal or signature of a notary public ; but such rule (a) For a list of places in Foreign parts under the dominion of Her Majesty, see p. 344. 844 SWEARING TO AFFIDAVITS. only applies to a notary pubUc in any place in Foreign parts under the dominion of JSer Majesty. If an afl&davit is sworn before a notary public in any place in Foreign parts not under the dominion of Her Majesty, a ■v;^rification or identification of such notary, by a consul or other British minister is required, and must be annexed. The following is a list of the places iu Foreign parts under the dominion of Her Majesty. Beitish Isles — such as 1. Isle of Man. 2. Jersey. 8. Guernsey. 4. Heligoland. Meditereanean Possessions. 1. Gibraltar. 2. Malta. Bengal, Madras, and Bombay. East Indies. The Presidencies of West Indies. 1. Jamaica. 3. Honduras. 8. Turks and Caicos Islands. 4. British Guiana. 5. Trinidad. 6. Bahama Islands. 7. Barbadoes. 8. St. Vincent. 9. Grenada. ) Windward Islands. 10. Tobago. 11. St. Lucia. 12. Antigua. 13. Montserrat. 14. St. Christopher's. It :■ t i 15. Nevis. ' Lee^'^ajd Islands. 16. Virgin Islands. 17. Dominica. ee-sweaeing affidavits. 345 Eastern Colonies. 1. Ceylon. 2. Hong Kong. 3. Mauritius. 4. Labuan. 5. Falkland Islands. Australian Colonies. 1. New South Wales. 2. Victoria. 3. South Australia. 4. Western Australia. 5. Tasmania. 6. New Zealand. North American Colonies. 1. Canada. 2. Nova Scotia. 3. New Brunswick. 4. Prince Edward's Island. 5. Newfoundland. 6. Vancouver's Island. 7. Bermuda. African Possessions. 1. Cape of Good Hope. 2. Natal. 3. St. Helena. 4. Sierra Leone. 5. Gambia. 6. Gold Coast. The United States of the Ionian Islands {a). Me-swearing Affidavits. Any document sworn to, may be re-sworn at any time before it is filed. I| on re-swearing, a second jurat is given, com- mencing with the word " Ee-sworn," then the first jurat should not be struck out, or in any manner interfered with. But if the second jurat commences with the word " Sworn," — in other words, if the jurat on the re-swearing is such as is used when a document is first sworn to, then the first jurat must be struck out, and such striking out must be authenticated by the initials of the Commissioner before whom it is last sworn. (a) Comprising Corfu, Paso, Santa Maura, Cephalonia, Zante, Itliaca, and Cerigo. 346 piling affidavits. Filing Affidavits. In what Cases necessary. It is necessary to file affidavits in all cases where it is intended to use such affidavits in any proceeding before the Court, or in the offices of the Court. Notwithstanding that under the Joint-Stock Companies Winding-up Act, 11 & 12 Vict. c. 45, s. 94, affidavits and all other proceedings under that Act are to be filed in the Master's office (a), in one continuous file after the manner used in bank- ruptcy, affidavits in matters under that Adt are, in practice, filed at the Record and Writ Clerks' office, and the same fee for filing is required as in other cases. Affirmations made pursuant to the 20th section of the Common Law Procedure Act, 1854, (17 & 18 Vict. c. 135), may be filed and used in any cause or matter in the Court of Chancery, provided such affirmation is made according to the form prescribed by the said Act, and the affirmat is in the form therein given. No fee for filing is required on affidavits filed with and annexed to bills of interpleader, or to bills for discovery or production of deeds. An affidavit required to be filed with and annexed to a bill, may be sworn to before the bill is filed. An affidavit in support of a petition or motion, should not be filed before the petition is answered, or the notice of motion is served. But where it is intended to use an affidavit filed and used on some previous occasion in the same cause, notice of such intention must be given, and may be given as soon as the petition is answered, or the notice of motion is served. In cases where any such affidavit is intended to be used as evidence at the hearing of the cause, notice of such intention must be given within one month after issue joined, — Order 6, 13th January, 1855. :In what cases Notice of Filing Affidavits is to be given. The ..party intending to use any affidavit on any proceeding in chimAers is to give notice, to the other parties concerned, of his intention in that behalf. — Order 24, 16th Oxjtober, 1853. Claimants coming in pursuant to advertisement, are to giv* notice 'of having, filed their affidavits, and of having entered their claims (S) to the solicitor in the cause within thetime speci- (o) Where any suet matter is before a Judge at chambers, such Judge takies the place of the Mastcl-. ' (i) The number of the entry of the claim is also to be stated in the notice. — Regulation 9, 8th August, 1857. DESIGNATIONS OF COMMISSIONEES. 347 fied in the advertisement for bringing in claims. — Order 36, 16th October, 1852. In no other case does the practice require that the party filing an affidavit shall give notice thereof. COMMISSIONEES TO ADMINISTER OaTHS. Designations of Certain Commissioners. The following observations show the particular designations of persons authorised to administer oaths in proceedings to be used in the Court of Chancery. Of a London Commissioner. "A-London commissioner to administer oaths in Chancery." Of a Commissioner for England or Wales. "A commissioner to administer oaths in Chancery in Eng- land." Of a Commissioner for the Isle of Man or the Channel Islands. " A commissioner to administer oaths in Chancery for the Channel Islands." In all other cases the style or designation is governed by the title of office, or particular designation, of the party; before whom the affidavit, &c., is sworn, as will appear from the 22nd section of the Act 15 & 16 Vict. c. 86, y?hich is, in terms, as follows : — All pleas, answers, (Msclaimers, examinations, affidavits, declarations, afl&rmations, and attestations of honour in causes or matters depending in the High Court of Chancery, and also acknowledgments required for the purpose of inrolling any deed in the said Court, shall a,nd may be sworn aild taken .in Scotland, or Ireland, or the Channel Islands, or in any colony, island, plantation, or place, under the dominion of Her Majesty in foreign parts, before any judge, court, notary public, or person lawfully authorised to administer oaths in such country, colony, island, plantation, or place respectively, or before any of Her Majesty's consuls or vice-consuls in any foreign parts out of Her Majesty's dominions — and the judges and other officers of the said Court of. Chancery, shall take judicial notice of. the seal or si^ature, as the case may be, of any such court, judge, notary public, person, consul or vice- consul, attached, appended, or subscribed to any such pleas, answers, disclaimers, examinations, affidavits, affirmations, attestations of honour, declarations, acknowledgments, or other documents, to be used in the said Court. 348 DUTIES OF COMMISSIONEES. In what Cases such Commissioners may Administer Oaths. Statutory declarations may be taken by commissioners to administer oaths in Chancery. See 5 & 6 Will. 4, c. 63, s. 18, but such declarations cannot be filed at the Eecord and Writ Clerks' office. The oath of allegiance by aliens, under the statute 7 & 8 Vict. c. 66, may likewise be administered, and a certificate of the same having been taken, granted, by such commissioners. Eeceivers' recognizances, and acknowledgments of deeds requiring inrolment, and of specifications of patents, may also be taken by such commissioners. Affidavits to be used in proceedings in county courts may be sworn before " Commissioners to administer oaths in Chancery." See 13 & 14 Vict. c. 61, s. 33. And affidavits in matters in limacy and bankruptcy may also be sworn before such commissioners. Any person authorised to administer oaths for the High Court of Chancery, may administer oaths for suits and matters in the chancery of the county Palatine of Lancaster. Any person appointed to take affidavits to be used in pro- ceedings in the Court of Chancery in England, may administer the oath of office required to be taken by a person in England appointed by the Court of Chancery in Ireland as " Extra- ordinary Commissioner," to take affidavits, pleas, answers, and demurrers, and to examine witnesses for the Court of Chancery in Ireland. See Act 55th of Geo. 3, c. 157, s. 5. There are provisions in the Act applicable to other courts besides the Court of Chancery. The course of proceeding to be adopted by the commissioner after administering the oath, is also set forth in section 5. Section 6 prescribes the form of oath to be administered. For such form see " Jurats and Oaths." In what cases such Commissioners may not Administer Oaths. The commissioner cannot take an affidavit in any cause or matter in which he is concerned as solicitor, or where he is clerk to the solicitor, for any of the parties. See re Hogan, 3 Atkins, 813 ; Wood v. Sarper, 3 Beav. 390. . In Be Sogan the solicitor had taken all the affidavits before himself, notwithstanding he had been solicitor throughout the cause. The Lord Chancellor said: — "If I had known this at the time, I would not have suffered the affidavits to be read. At common law it is always objected to and discountenanced FEES OF COMMISSIONERS. 349 and equally so in equity, from the inconvenience that would arise if such a practice were suffered." For this reason (among others) the petition was dismissed with costs, to come out of the pocket of the solicitor who thus very improperly took the affidavits. In Wood V. Sarper there was a motion to commit the defen- dant for breach of an injunction, and it was proposed to read certain affidavits, which were objected to on the ground that they had been taken before a master extra, who acted as clerk to the plaintiff's solicitor. The Master of the Kolls rejected the affidavits on the ground stated. Fees to be Taken "by Commissioners for Administering Oaths. The following are the fees allowed to commissioners for administering oaths, &c. : — £ s. d. In London . . . .016 In the country 2 6 For marking each exhibit . . .010 Schedule 1, Order, 30th January, 1857. A document annexed to an affidavit is regarded as part of the affidavit, and not, strictly, as an exhibit. The following fees are also allowed by the Taxing Mas- ters : — £ t. d. For taking an acknowledgment of a deed 6 8 For taking a receiver's recognizance . 13 4 If the commissioner attends elsewhere than at his own office to administer an oath, he is entitled to travelling expenses Is. per mile each way. There is no fixed fee for the attend- ance, beyond such travelling expenses and the fee for the oath. A fee of 10s., besides Is. per mile each way for travelling expenses, is charged by the Clerks of Records and Writs for attending to take an affidavit elsewhere than at the Eecord and Writ Clerks' office. But such fee is paid to the Suitors' Fund. A fee of Is. Qd. is taken by the Clerks of Records and Writs for each oath administered by them. But if the oath is to an affidavit made in a matter " In Lunacy ; " or for the sole purpose of receiving dividends in Chancery, no fee is payable. For information relative to office copies of affidavits, see " Office Copies." 350 AFFIDAVIT OF SERVICE OF BILL. FOEMS OF AFFIDAVITS («). FoEMAL Commencement of Affidavit. No. 257. By One Deponent. I , of , in the county of , make oath and say as follows : — No. 268. By Two or More Deponents. We , of , in the county of , and , of in the county of , severally make oath and say. And first, I the said for myself say, that, »fec. No. 269. By a Quaker. I , of , in the county of , being one of the people called Quakers, do solemnly, sincerely, and truly aflGirm as follows : — No. 260. FoBM OF Affidavit of Sebvice of Bill. (Or of an Amended Bill in cases where the Defendant has not Appeared to the Original Bill.) In Chancery. -Between, &c. \_8et forth the Full Title of the Cause.] I , of , make oath and say as follows ■.' — 1. I did on the-: day of serve the above-named defendant — — , with a printed copy of the bill of com- plaint [or, of an amended bill of complaint, as the case may he\, having an indorsement thereon in the form prescribed by the statute in that case made and provided, by deliver- ing to and leaving with the said defendant personally [or, (a) Forms of sncli affidavits only as are usually acted on in the Record and Writ Clerks' office are inserted in this work. AFFIDAVIT OF SEEVICE OF BILL. 351 ■with the wife, or, servant of the said defendant, as the case may be] at his dwelling-house (a) situate at , in the county of , such printed copy with such indorsement thereon as aforesaid, which said printed copy appeared to me to have been duly stamped with the stamp of the Eecord and Writ Clerks' office, and purported to be a copy of the bill of complaint in this cause, filqd in the said office on the day of ■ \in the case of an amended bill, add, as amended on the day of , pursuant to an order dated the day of ]. Sworn, &c. Substituted Service (J). If by substituted service, say; — "by delivering to and leaving with Mr. [or, as the case may be] the person named in the order hereinafter-mentioned, such printed copy," &c. ; and after the clause as to the service of the copy bill, add the following ; — No. 261. 2, At the time I so served the said copy of the said bill, I also served the said Mr. \pr, as the case may be] with an order made in this cause bearing date the day of , whereby it was ordered [recite so much of the order as directs the substituted service],^hy deliveripg to and leaving with the said Mr. , at , in the county of , a true copy of the said order, and at the same time pro- ducing and showing to him the said original order duly passed and entered. Service Out of the Jurisdiction of the Court. Siervdces out of the jurisdiction must be effected in accord- ance with the terms of the order directing such service, and a clause must be added showing service at the same time of a (a) It is not essential that personal service should be effected at the dweUmg-houae of the 'party, but the place of such service must be set forth, and such place must be within the jurisdiction of the Court, unless otherwise ordered. (J) Substituted services must be effected, both as to person and place, in strict accordance with the terms of the order directing such service. 352 AFFIBAVTT OF SERVICE OF BILL. copy of such order, in like manner as in the case of substituted service. The foregoing form of additional clause, applicable to a case of substituted service, may be adapted to this case. Upon or for a PuhUo Company. If served upon or for a public company, say, " by delivering to and leaving with Mr. , the secretary \pr, manager, or, with a clerk] of the said company, at the offices of the said company situate at , such printed copy," &c. Form of Affidavit of Service of an Amended Bill. No. 862. (Where the Defendant has Appeared to the Original Bill.) In Chancery. Between &c. [Set forth the Full Title of the Came.] I , of , make oath an^. say as follows : — 1. I did on the day of serve the above-named defendant , with a printed copy of an amended bill of complaint, having an indorsement thereon in the form prescribed by the statute in that case made and provided by delivering to and leaving with (a) such printed copy with such indorsement thereon, as aforesaid, which said printed copy appeared to me to have been duly stamped with the stamp of the Eecord and Writ Clerks' office, and purported to be a copy of the bill of complaint in this cause, filed in the said office on the day of , as amended on the day of , pursuant to an order dated day of . Sworn &c. (a) If ihe defmdamt appeared i/a person to the origmcd hill, fiU m this VlamTc, thus: — " the said defendant personally [or, the wife, or, servant, or, as the case may be, of the said defendant], at his dwelfing-honBe, situate at , in the county of [or, if at the defendant's address for service, say, at bis address for service at — — , in the county of ."] If the defendamt ofppea/red to the original bill hy his solicitor, say, "Mr. [or, a clerk, or servant of Mr. ], the solicitor of the said defendant , at the office [or, address for service, as the case may 6e] of the said Mr. , situate at '■ , in the county of ," AFFIDAVIT OF DELIVERY OF INTEEEOGATOEIES. 353 Form of Affidavit of Deltveet of Inteeeogatoeies. (a) (For the Examination of a Plaintiff or Defendant.) No. 263. Where the Interrogatories have been Delivered to the Plaintiff or Defendant. In Chanceby. [Set forth the Full Title of the Cause.] I , of a-, make oath and say as follows : — 1. I did on the day of deliver to the above- named plaintiff [or, defendant] a copy of certain interro- gatories for the examination of the said plaintiff [or, defendant] by leaving such copy with the said plaintiff [or, defendant] (6) at his dwelling-house [or, at his address for service, as the case may he], at , in the county of , which said copy of interrogatories appeared to me to have been duly stamped and marked as an of&ce copy at the Record and Writ Clerks' office, and purported to be a copy of the interrogatories filed in this cause on the day of (c) for the examination of the said plaintiff [or, defendant] («?). Sworn, &c. (o) An office copy of an affidavit proving due delivery of interrogatories is required to be produced upon sealing an attachment for want of answer. And it may be men- tioned, that even where a summons for further time to answer is taken out and served, if sudh summons is not returnable before the expiration of the original or previously granted time for answering, an attachment for want of answer may be sealed. It should not, however, be executed. (6) If the delivery was not personal, say, "with the wife, or, servant, or, as the case may be, of the said plaintiff [or, defendant]." If by substituted service, see p. 351. (c) If the copy delivered was a copy of amended interrogatories, add the following : — "as amended on the day of , pursuant to an order dated the — day of ." (d) If the plaintiff or defendant, to whom the copy has been delivered, was not required to answer all the interrogatories, say, "purported to be a copy of such of the interrogatories filed in this cause on the day of (see preceding note (c) ), for the examination of the said plaintiff [or, defendant], as the said plaintiff [or, defendant] was required to answer." 354 AFFIDAVIT OF DELIVERY OF INTERPLEADER. No. 264. Where the Interrogatories ham been Delivered to the Solicitor of the Plaintiff or Defendant. In Chancery. Between &c. {Set forth the Full Title of the Came.] I , of , make oath and say as follows : — 1. I did on the day of deliver to Mr. , the solicitor of the ahove-named plaintiff [or, defendant], a copy of certain interrogatories for the examination of the said plaintiff [or, defendant], by leaving such copy with the said Mr. [or, with a clerk or servant of the said Mr. ], at his office [or, address for service, as the case may he\, at , in the county of , which said copy of interrogatories appeared to me to have been duly stamped and marked as an office copy at the Eecord and Writ Clerks' office, and purported to be a copy of the interrogatories filed in this cause on the day of (a), for the examination of the said plaintiff [or, defendant] {b). Sworn, &c. Form of Affidavit of Service of Subpoena to appear to AND Answer an Original or Amended Bill (c). . No. 365. JVhere the Subpoena has been Served upon the Defendant. In Chancery. Between &c. [Set forth the Full Title of the Cause.] I , of , make oath and say as follows : — 1. I did on the day of serve the above-named defendant with a subpoena issuing out of and under the seal of this Honourable Court, by delivering to and (a) If amended iatorrogatories, see note (c) to the preceding form, on p. 853. (6) If the party was not required to answer all interrogatories, see note (d) to the pleading form, on p. 353. (c) This and the next form may possibly still be required in some suits where the bill was filed before the 2nd November, 1862. AFFIDAVIT OF SERVICE OF SUBPCENA TO APPEAR. 355 leaving with the said defendant [or, with the wife, or, servant, or, as the case may he, of the said defendant] (a), at his dwelling-house situate at in the county of , a true copy of the said subpoena and indorsement thereon, and memorandum at the foot thereof, in the form prescribed by the general orders of this Honourable Court, and at the same time producing and showing to the said defendant \pr, as the case may he], the said original subpoena so under seal as aforesaid ; by which said subpoena the said defendant was com- manded, within eight days after the service thereof, exclusive of the day of such service, to cause an appearance to be entered for him in this Honourable Court to a bill filed against him by the above-named plaintiff. Sworn, &c. No. 266. Where the Subpcena to appear to and answer an Amended Bill, has been served upon the Solicitor of the Defendant. In Chancery. Between, &c. [Set forth the Full Title of the Cause.] I , of , make oath and say as follows : — 1. I did on the day of serve the above-named defendant with a subpoena, issuing out of and under the seal of this Honourable Court, by delivering to and leaving with Mr. [or, with a clerk, or, servant of Mr. ], the solicitor for the said defendant , at his ofBce [or, address for service, as the case may he], at in the county of , a true copy of the said subpoena and indorsement thereon, and memorandum at the foot thereof, &c. [as in the^ preceding form.] Sworn, &c. (o) If by substitTited service, or, if served out of the jurisdiction, see p. 351. A A 2 356 AFFIDAVITS — TO BILL OF INTERPLEADER. No. 867. Form of Affidavit to be Filed with a Bill of Inter- pleader. {To be used when the Plaintiff Swears to the Affidavit.) In Chancery. Between &c. [Set forth the Full Title of the Came.] I, , of , the above-named plaintiff, make oath and say as follows : — 1. That the bill in this cause (a) is not filed in collusion with either of the defendants in the said bill named, but merely of my own accord for relief in this Honourable Court. Sworn, &c. See also Nos. 288, 289, and 290 (pp. 369 and 370), for other forms applicable to the following cases, viz. : — 1. "Where the plaintiffs are co-partners and the affidavit is sworn to by some or one of them only. 2. Where the affidavit is sworn to by the officer of a public company. 3. Where the affidavit is sworn to by the solicitor of the plaintiff. No. 268. Form of Affidavit of Service of Subpcena for Costs. In Chancery. Between, ,&c. [Set forth the Full Title of the Cause or matter.] I , of , make oath and say as follows : — 1, I did on the day of serve the above-named defendant with a subpcena, issuing out of and under the seal of this Honourable Court, by delivering to and leaving with the said (6) a true copy of the said sub- (a) If the bUl is not produced as an exhibit, but is annexed to the affidavit, add " and hereunto annexed." (6) If by substituted service, see p. 361. The service must be personal on the AFFroAVITS UPON WHICH TO ENFORCE DECREES, ETC. 357 poena, and of the indorsement thereon, and at the same time showing to the said the said original subpoena so under seal as aforesaid, by which said subpoena the said was commanded to pay, or cause to be paid, immediately after the service of the said writ, to the above- named , or the bearer thereof, the sum of costs in this cause ; and I did at the same time demand of the said the said sum of , but the said then refused to pay the same or any part thereof to me, nor hath the said ^ since paid the same, or any part thereof, either to me or to the said , or to any other person or persons, for the use or on the account of the said , to the best of my knowledge and belief. Sworn, &c. 4 Forms of Affidavits upon which to enforce Decrees AND Oedebs. The following form does not extend beyond service of a decree or order. But there are very many cases in which, in enforcing an order or decree, it is required that the evidence afforded by the affidavit, upon which the process of contempt is to issue, shall extend beyond the mere service. In such cases, therefore, an additional clause, or additional clauses, must be introduced; and forms of such additional clauses, applicable to the several cases indicated by the headings pre- fixed thereto, are appended to the following form. No. 269. Form of Affidavit of Service of Order or Decree. In Chancery. Between, &c. [Set forth the Full Title of the Cause.] {a) I , of , make oath and say as follows : — 1. I did on the day of serve , the above- named defendant [or, if upon a substitute, say the person named in the order hereinafter mentioned], with an order party, or, if by sntstituted service, it must te effected in strict accordance with the terms of the order directing such service. (a) Or "matter." For an order intituled in a "matter" may now be enforced by attachment — the simple distinction heretofore existing in that respect between a " cause" and a "matter " having been imely removed by the General Order, 18th July, 1867. 358 AFFIDAVITS UPON WHICH TO ENFOBCE DECREES, ETC. made in this cause (a), bearing date the day of -, whereby it was ordered that [reaite, in the past tense, so much of the Order as directs the payment of the money, or perform- ance of the act, sought to be enforced] by delivering to and leaving with the said (6), a true copy of the said order, and at the same time producing and showing to him the said , the said original order duly passed and entered (c). 2. On the copy of the said order, when so served as afore- said, was indorsed a notice or memorandum in the words or to the effect following, that is to say, " If you (t?), the within- named , neglect to obey this order [or, decree] by the time therein limited, you will be liable to be arrested under a writ of attachment issued out of the High Court of Chancery, or by the serjeant-at-arms attending the same court (e), and also be liable to have your estate sequestered for the purpose of compelling you to obey the same order [or, decree] " (/). (a) If the order is made in a matter under the Joint-Stock Companies Winding-up Acts, add, "by , the Judgfe to whose court this matter is attached," or, "hj -J the Master charged with the winding-up of the said company." (6) The setvice must be personal on the party, or, if by substituted service, then in strict accordance with the terms of the order directing such service. If hy sub- stitwteA service, sag, " by delivering to and leaving with Mr. , the person named in the order, bearing date the day of , hereinafter mentioned." Jf agamst a public eompamy, my, "by delivering to -and leaving with the secretary [or, chairman, or, manager] of the said company [or, A. B., the public officer, or, the person appointed to sue and be sued on behalf of the said company]," (c) If the order was made in a matter undei' the Joint-Stock Oompaniei Winding-up Acts, instead of the words "duly passed and entered," say, "with the said Master's [or. Judge's] signature at the foot thereof ;" ot; if, being made in any such matter, the oi'der was signed by the Chief Clerh of the Judge, amd entered with the Registrar, lay, ' ' at the same time producing and showing to the said the said origin^ order, which appeared to me to have been signed by , the Chief Clerk to the said Judge, and to have been duly entered." If the party seeking to enforce the order has not possession of the original order, instead of the words, "producing and showing to him the said original order," &c., say, ' ' producing and showing to him a duly marked ofice copy of the said original order." (d) Even if a substitute be served, the party ordered to do the act is to be addressed in the indorsement. (e) If against a public company, say, "you will be liable to a distress upon your lands and tenements, goods and chattels, rights and credits, and also be liable to have your estate sequestered," &c., as in the form. If against a peer, leave out such part of the form as refers to an arrest. (/) Attention is particularly directed to the observation which follows immediately after the above form : for the practitioner must not (in cases where he is seeking to enforce an order or decree) rest satisfied with having prepared an affidavit of service AFFIDAVITS UPON WHICH TO ENFORCE DECREES, ETC. 859 Observation. The Forms of clauses numbered from No. 270 to No. 385, inclusive, are indicative of the special requirements appli- cable to particular cases, and, where necessary, one or more of such clauses must be added to the foregoing form of affidavit of service of an order or decree. The_ subject matter of such clauses may, in any case, be embodied in a separate affidavit, or deposed to by a person other than the person who swears to the service of the order, but if so embodied o^ deposed to, some slight variation in the language will be necessary. No. 270. Where an Order for Substituted Service of the Order or Decree has 3 {a). At the time of serving the said order as aforesaid I also served the said {the party substituted]{b), with an order made in this cause dated the day of , whereby it was ordered [recite, in the past tense, so much of the order as directs substituted service], by delivering to and leaving with the said , a true copy of the said last-mentioned order, and I at the same time produced and showed to the said , the said original order, duly passed and entered. No. 271. Where the Order or Decree directs Payment of Money to a Party, and the Demand was made by such Party. 3 (fl). At the time of serving the said order, as aforesaid, I did demand of the said {the party or his substitute] (b), the said sum of , but the said — — [the party or his substitute'] then refused to pay the same, or any part thereof, merely ; he must congider what is the act which the decree or order directs the perform- ance of, and, if necessary, — that is, if more than evidence as to aervice is required, — comply with the ipecial requirements shown in the several cases indicated by the headings prefixed to the forms of additional clauses, Nos. 270 to 285. (a) For Forms of clauses or paragraphs 1 and 2 (as to service), see pp. 357 and 358. (J) The author has not considered it necessary to introduce directions respecting subsiatntes into the Forms, beyond Form No. 272. Being thus referred to will supply precedent or Form enough to the practitioner for his guidance in other cases. 360 AFFIDAVITS UPON WHICH TO ENFOECE DECKEES, ETC. to me, and the said [the parti/] hath not, nor has any other person in his hehalf, since paid the same or any part thereof, either to me or to any person or persons for my use, or on my account, but the same still remains due and unpaid. No. 272. Where the Order directs Payment of Money to a Party, and the Demand was made by a Third Party under a Pmoer of Attorney. 3 (a). At the time of serving the said order as aforesaid, I produced and showed to the said [the party or his substitute] (b) a power of attorney, under the hand and seal of the said [the party to whom the money is payabk], and hearing date the day of , by which said power of attorney, the said did make, ordain, constitute, and appoint me his true and lawful attorney, thereby granting unto me full power, &c. [recite the words of the power of attorney down to the words " authority to gime receipts"] a true copy of which power of attorney I also at the same time delivered to, and left with the said — — . 4. In pursuj^nce of such power and authority so given to me by the said , I did at the same time demand of the said [the party or his substitute], payment of the said sum of , but the said [the party or his sub- stitute] then refused to pay, and did not pay the same, or any part thereof to me, nor hath the said [th£ party], or any other person on his behalf, since paid the same, or any part thereof, either to me or to the said , or to any other person or persons, for the use, or on the account of the said , as I have been informed and verily believe, but the same still remains due and unpaid. (a) For Forms of clauses or paragraphs 1 and 2 (as to service) see pp. 367 and 358. (5) See note (6) on p. 359. AFFIDAVITS UPON WHICH TO BNFOEOE DECEEES, ETC. 361 No. 373. Where the Order directs the Execution of a Deed. 3 (a). At the time of serving the said order, as aforesaid, I tendered to the said the said deed for his execu- tion, and requested him to execute the same, but the said then refused to execute, and did not execute such deed. 4. Upon the said so refusing to execute such deed, as aforesaid, I delivered to and left with him a notice in writing in the words, or to the effect following, that is to say {set forth, verbatim, the notice] (6). 5. Notwithstanding such service, tender, request, and notice, the said hath not executed the said deed as directed by the said order, but hath hitherto wholly neglected and refused so to do. No. 274. Where the Order directs delivery of Deeds, 8fc., to a Party, and the Demand was made by such Party. 3 (a). At the time of sei-ving the said order, as aforesaid, I did demand of the said delivery to me of the said deeds, [&c., or, as the documents may he described in the order,] mentioned or referred to in the said order, but the said then refused to deliver the same, and did not deliver the same or any of them to me, and hath not since delivered the same, or any of them, either to me or to any person or persons for my use, or on my behalf, but hath hitherto wholly neglected and refused so to do. (a) For forms of clanses or paragraphs 1 and 2 (as to service), see pp. 357 and 358. (5) Sneh notice should be signed by the solicitor of the party prosecuting the order, and may be in the following form, viz. : — " I hereby give yon notice, that the deed, mentioned in the order dated the day of • , (a true copy of which order has now been served upon you, ) will lie for signature and execution by you, the said , at [specify the place], thenceforward and until the day of [the last day of the time eUlowed, after service, by the order], and that if such deed be not executed by yon within such time, proceedings will be taken to enforce the execution thereoi without farther notice to you." 362 AFFIDAVITS UPON WHICH TO ENFORCE DECREES, ETC. No. 275. WTiere the Order directs Delivery of Deeds, 8fc., to a Party, and the Demand was made by a Third Party under a Power of Attorney. 3 (a). At the time of serving the said order, as aforesaid, I produced and showed to the said a power of attorney, &e. [as in clause. Form No. 273, p. 360.] 4. In pursuance of such power and authority so given . to me by the said , I did at the same time demand of the said delivery to me of the said deeds, [&c., or, as described in the order,] hut the said then refused to deliver the same, and did not deliver the same, or any of them to me, nor hath the said since delivered the same or any of them either to me or to the said , or to any other person or persons for the use or on the behalf of the said , as I have been informed and verily believe; but the said hath hitherto wholly neglected and refused to deliver the said deeds, &c., as directed by the said order. No. 276. Where the Order directs delivery of Possession of an Estate. [The two preceding forms (No. 274 and 275,) will suffi- ciently guide the practitioner]. No. 277. Where the Order directs the Party to make and file an Affidavit as to Possession of Documents. 3 (a). I have this day searched the register of affidavits kept in the Record and Writ Clerks' office, being the proper book kept for that purpose, and it does not appear therefrom that any such affidavit as is required by the said order hath been made and filed. And I verily believe that the said hath not made and filed such affidavit as by the said order he was directed. (o) For Forms of clauses or paragraphs 1 and 2 (as to serrioe), see pp. 357 ai)d 358. AFFIDAVITS UPON WHICH TO ENFORCE DECREES, ETC. 363 No. 278. Where the Order directs Production of Documents at the Office of a Solicitor, or elsewhere than at the Record and Writ Clerks' Office. 3 («). I did, on the day of , attend at the office of Mr. , between the hours of and o'clock in the ^noon, for the purpose of inspecting the several documents, papers, and writings directed by the said order to be produced as aforesaid, and I then and there requested the said Mr. to produce such documents, papers, and writings, in order that I might inspect and examine the same, but the said Mr. did not then produce such documents, papers, and writings, or any of them, (6) and neither the said Mr. , nor the said , nor any other person on his behalf hath since produced such documents, papers, and writings, either to me or to the said {the party in whose favour the order for the production was obtained], or to any other person or persons on behalf of the said , to the best of my knowledge and belief, but hath wholly neglected and refused so to do. No. 279. Where the Order directs a Party to leave Accounts at the Chambers of the Judge. 3 (a). I have this day searched the register of proceedings kept in the chambers of , the Judge, to whose court the cause is attached, and it does not appear therefrom that the accounts mentioned or referred to in the said order, or any of them, have or hath been left, and I verily believe that the said hath not left such accounts in the chambers of the said Judge as directed by the said order. (a) For Forms of clauses or paragraphs 1 and 2 (as to service), see pp. 357 and 358. (6) The statements most be varied aa circumstances may require. 304 AFFIDAVITS UPON WHICH TO ENFOECE DECEEES, ETC. No. 280. Where the Order directs a Tenant to Attorn to a Receiver. To be dq)osed to hy the Receiver (a). 3 (6). On the day of , I called upon , the person named in the order made in this cause, dated the day of , and requested him to attorn tenant to me as the receiver, appointed in this cause, and I, at the same time presented to him the said , the memorandum hereunto annexed marked A. (c), and requested him to sign the same, or in some other manner to attorn tenant to me as such receiver, but the said then refused to sign the same, or in any other manner to attorn tenant to me as such receiver, and I say that the said hath not attorned tenant to me as such receiver, as directed by the said order, but hath wholly neglected and refused so to do. The attornment might be signified bt/ payment of rent, thereby rendering any such memorandum as is referred to in the fore- going clause unnecessary. Such clause therefore is not to be regarded as a prescribed form. It may however answer the purpose for which it is given, viz., to show the nature of the official requirements in such cases. (a) If the demand to attorn -was made by a third party under power of attorney, form No. 272, p. 360, and this form together, will sufficiently guide the practitioner. (6) For Forms of clauses or paragraphs 1 and 2 (as to service), see pp. 357 and 358. (c) The memorandum referred to may be in the following form : — No. 281. In OH.UICEBY. Between, &c. [Set forth the Title of the Qamse.'] In obedience to an order made in this cause bearing date the day of , I do hereby attorn tenant to , the receiver appointed in this cause, and undertake to pay to him as such receiver any rent in arrear due &om me, also any growing rents that may at any time be payable in respect of the premises tenanted by me, situate . [Name of TenarU.'] day of . AFFIDAVITS UPON \felCH TO ENFORCE DECREES, ETC. 365 No. 282. WTwre the Order directs Payment of Money to an " Official Manager." To he deposed to by the Official Manager {a). 3 (S). And I , of , the official manager of the above-named company, make oath and say that , the person named in the order made in this matter by , the Judge to whose court this matter is attached \pr, by , the Master charged with the winding-up of the said company] bearing date the day of , hath not paid to me, nor to any person or persons, for my use or on my account, the sum of , or any part thereof, as directed by the said order. No. 283. If Several Contributories have been Served tmth Orders directing them to Pay Money, and it is intended to Proceed against them to Enforce Payment, though Separate Attachments may issue, the " Official Manager " may, in making the Affidavit as to Non-payment, include them all in one Affidavit in Form as follows : — 3. (b) That none of the several persons, contributories of the said company, whose names appear in the schedule hereunder written, and who have been duly served with orders made in this matter by , the Judge to whose court this matter is attached [or, by , the Master charged with the winding-up of the said company], bearing date respectively the day of , have paid to me, nor to any person or persons for my use, or on my account, in pursuance of such orders the several sums of money a) If the order directs payment to more than one official manager, every one of such official managers must join in the affidavit as to non-payment. (6) The clause given in the Form is numbered as paragraph 3, and this will apply in cases where the official manager does not make affidavit as to the non- payment separately from the affidavit as to service. 366 AFrn)ATiTS upon which to enfcIece deceees, etc. thereby ordered to be paid to me, or any part thereof, the respective amounts whereof are also set forth in the said schedule hereunder written. The schedule above referred to. Names of the Contributories. Address. Amount. £. s. d. No. 284, Where the Order directs Payment of Money and Interest, the Amount of such Interest to he verified hy Affidavit {a). 3 (J), I did, on the day of , also personally serve the said with an affidavit made in this cause by , and filed on the day of by delivering to and leaving with the said a true copy of the said affidavit, and at the same time producing a,nd showing to him a duly marked office copy of the said affidavit. No. 285. Where an Order directs Service of a Taxing Master's Certificate, 3 (6). I did, on the day of , also personally serve the said with the Taxing Master's Certificate made in this cause, dated the day of , and filed the day of , by delivering to and leaving with the said - - a true copy of the said Certificate so filed as aforesaid, and at the same time producing and showing to him a duly marked office copy of the said certificate. (a) For cases where the order direets payment of money, a form is already given, see p. 859, or, if demanded by a third party, p. 360. The clause here given, applies, therefore, only to service of an afBdavit verifying the amount of interest. (6) For Forms of clauses or paragraphs 1 and 2 (as to service of order or decree), see pp. 357 and 368. AFFIDAVITS UPON WHICH TO ENFORCE DECREES, ETC. 367 No. 286. Form of Affidavit as to Production of Documents. To be used in Cases where Part only of a/ny Docmnents ordered to be left with the Clerk of Records and Writs, or Produced at the Office of a Solicitor, have been so left or Produced (a). In Chancery. Between &c. [_Set forth the Full Title of the Cause."] I , of , make oath and say as follows : — 1. I have carefully examined and compared the several documents, papers, and writings left in this cause with the Clerk of Records and Writs, in whose division this cause is [or, produced at the office of Mr. ], in pursuance of an order dated the day of , by , with the schedule to his answer [or, affidavit] filed in this cause on the day of , and that the following documents, namely [here set forth a description of the documents not left or produced'], are not amongst the said documents, papers, and writings so left [or, produced] as aforesaid. If the Docunients were ordered to be left with the Clerk of Records and Writs, add: — 3. And I have been informed by the Clerk of Eecords and Writs in whose division this cause is, that no docu- ments, papers, and writings in this cause other than those firstly hereinbefore mentioned or referred to, have been deposited or left with him. Or, if the Documents were wdered to be Produced at the Office of a Solicitor, add: — 2. And I say that I requested the said Mr. to produce aU the documents directed by the said order to be produced, and especially the several documents, papers, and writings, the particular description of which is set forth in the first paragraph of this my affidavit ; but the said Mr. did not then produce the same, nor (a) Such affidavit should be made by the solicitor of the party seeking to enforce the production. 368 AFFIDAVITS UPON WHICH TO ENFOKCE DECREES, ETC. hath the said Mr. , or the said , or any other person on his behaJf, at any time since produced the same either to me or to the said , or to any other person on his behalf to the best of my knowledge and belief, but hath wholly neglected and refused so to do (a). Sworn, &c. No. 287. Form of Affidavit as to Residue of Money Due. Form to he used in Cases where Part only of a Sum of Money Ordered to he Paid has been Paid{h). In Chancery. Between &c. [Set forth the Full Title of the Cause.] I , of , make oath, and say as follows : — 1. By an order made in this cause by , bearing date the day of , it was ordered [recite, in the past tense, so much of the order as directs payment of the money]. 2. That the said , hath since paid the sum of and no more on account of the said sum of , leaving a balance or residue amounting to the sum of , still due and owing from him the said , to me this deponent. ' 3. That the said hath not paid the said residue or sum of , nor any part thereof to me, nor to any other person or persons for my use or on my accoimt, to the best of my knowledge and belief, but the same still remains due and unpaid. Sworn, &c. The foregoing form may be adapted to a case where a residue of costs remains due. (a) The clause No. 2 is not to be regarded as a prescribed form. It is, howerer, Bucli as has been generally used, and, therefore, may answer the purpose for which it is given, viz., to show the official requirements in such cases. The language must depend upon, and be varied in accordance with, the particular circumstances of the case. (b) The party to whom the money is ordered to be paid must make the affidavit, or if it be a case in which the demand has been made by a third party, under power of attorney, then such third party may make the affidavit, and the form must be varied accordingly. As to service of the order, see Preliminary Note to " Writs." FFIDAVITS TO BE FILED WITH BILLS OF INTEEPLEADEE. 369 No. 288. Form to he Used where the Plaintiffs are Co-Partners, hut the Affidavit is Sworn to hy some or one of them only, (a) In Chanceet. Between, &c. [Set forth the Full Title of the Came.] I, , of , one of the plaintiffs named in the bill in this cause, and hereunto annexed, make oath and say as follows : — 1. That I alone of the plaintiffs have attended to the mat- ters mentioned in the hill of complaint hereunto annexed, and that my co-plaintiflfs are not acquainted with the facts ; and I say that the said bill of complaint is not filed in coUusion by myself or any of the plaintiffs therein named with any of the defendants in the said bill named, but merely of the plaintiffs' own accord, for relief in this Honourable Court. Sworn, &c. No. 289. Form to he Used where the Public Officer of a Company, Suing on Behalf of the Company, Swears to the Affidavit. In Chanceey. Between, &c. [Set forth the Full Title of the Cause.] I , of , the person appointed to sue and be sued on behalf of the above-named company [or, as the case may be], make oath and say as follows : — 1. That to the best of my knowledge and belief the bill in this cause [if annexed, add, and hereunto annexed] is not filed by the said company in collusion with either of the defendants in the said biU named, but merely of the plain- tiflfe' own accord for relief in this Honoiu-able Court. Sworn, &c. la) For the form applicatle to the ordinary case where the plaintiff sweai-s to the affidavit, see No. 207, p. 356. The form here given was nsed in Gibls t. Gibls, reference to which case is made in the obserrations under title "Bill." 370 AFFIDAVIT I'O BILL OF INTERPLEADEB, &C. No. 290. Form to be Used where the Affidavit is made by the Plaintiffs' Solicitor. In Chancery. Between, &c. {Set forth the Full Title of the Cause.] I , of , solicitor for the above-named plaintiffs, make oath and say as follows : — 1. That both the plaintiffs are out of the jurisdiction of this Honourable Court ; and to the best of my belief the plaintiffs, and , are not, nor is either of them, colluding with any of the defendants to delay payment of the sum of paid into the Court of Queen's Bench by the plaintiffs and , out of the monies of the plaintiffs and , or any part thereof, or of any other sum or sums of pioney which may be due to any of the defendants, (a) Sworn, &c. No. 291. Form of Affidavit to be Filed with and Annexed to a Bill for Discovert or Production of a Deed, (b) In Chancery. Between, &c. [Set forth the Full Title of the Cause.] I , of , the above-named plaintiff, make oath and say as follows : — 1. I have not, and to the best of my knowledge, remem- brance, and belief, I never had, in my custody or power the indenture bearing date the day of , and made between, &c., and which is mentioned in the bill filed by me in this court against the said defendants, nor do I know where the said indenture now is, unless it is in the custody or power of the said defendants or one of them. Sworn, &c. (a) The special circumstances inTohed in tte case Lardbrie v. Brown (reference to wHch is made in the observations under title " Bill)," were such as are mentioned in tlie above form of affidavit. In any case involving special circnmstances, other than such as existed in Lardbrie v. Brown, the affidavit must of course be varied accordingly. (6) Such affidavit is not required in cases where the plaintiff by his bill does not pray for relief. See cases cited in Smith's Chancery Practice (6th edition, 1857), p. 707. AFFIDAVIT — DISTRINGAS NOTICE OF DECREE. 371 No. 292. Form of Affidavit for Distringas to Restrain Transfer OF Stock. In Chancery. Between , ..... Plaintiff, and The Governor and Company \ of the Bank of England [or ?• Defendants, as the case may be] . . ' I , of , the ahove-named plaintiff [or, solicitor for the above-named plaintiff], do solemnly swear as fol- lows : — 1. That according to the best of my knowledge, informa- tion, and belief, I am [or, if the affidavit is made hy the solicitor, A. B., of , is] beneficially interested in the stock hereinafter particularly described, that is to say \here specify the amount of the stock to be affected by the writ, and the name or names of the person or persons, or body politic or corporate, in whose name or names the same shall be standing]. Sworn, &c. Affidavit of Service of Subpcena to Name a Solicitor. The form of affidavit of service of subpoena to appear and answer, will, with slight variations, answer the purpose in this case. See p. 354. Forms of Affidavits of Service of Notice of Decree. No. 293. Form to be Used in Cases where Notice has been given by Service of a Copy of the Decree. In Chancery. Between, &c. [Set forth the Full Title of the Cause.] I , of , make oath and say as follows : — 1. I did on the day of , serve , of - in E B 2 373 AFFIDAVIT OF SERVICE OF NOTICE OF DECREE. the county of , with notice of the decree made in this cause by His Honor the , bearing date the day of , which said decree is now produced and shown to me marked with the letter A (a), by (J) delivering to and leaving with the said , at , in the county of aforesaid, a true copy of the said decree, (c) 2. On the copy (d) of the said decree so served as afore- said, there was indorsed a memorandum or notice in the words or to the effect following, that is to say : — Take notice that from the time of the service of this notice, you [or, the infant, or, person of unsound mind, as the case may be] will be bound by the proceedings in the above cause in the same manner as if you [or, the said infant, or, person of unsound mind, as the case may be] had been originally made a party to the suit, and that you [or, the said infant, or, person of unsound mind, as the case may be] may, by an order of course, have liberty to attend the proceedings under the within-mentioned decree \pr, order]. And that you \pr, the said infant, or, person of unsound mind] may, within one month after the service of this notice, apply to the Court to add to the decree [or, order]. Sworn, &c. No. 294. Form to be Used in Cases where a Formal Notice has been Served. In Chancery. Between, &c. [Set forth th£ Full Title of the Cause.] I , of , make oath and say as follows : — 1. I did on the day of , serve of (a) To avoid the necessity of producing the original decree to the deponent at the time he swears his affidavit of service, instead of the words " which said decree is now prodnced," &c., say. "whereby it was ordered," &c. \reeitmg the whole of the mamdaUyry part of the order or decree.'] (h) If stibstituted service has been ordered, say, "by delivering to and leaving with Mr. (the person named in the order hereinafter mentioned), at," &o. (c) If more than one service is to be deposed to in one affidavit, the decree may, in any clause as to any subsequent service, be referred to as " the said decree." (d) If several services are deposed to in previous clauses, say "on each copy," &c. AFFIDAVIT OF SERVICE OF NOTICE OF DECREE. 373 in the county of , with a notice in writing in this cause, in the words and figures following, that is to say [set forth the notice verbatim] (a), by (b) delivering to and leaving with the said , at , in the county of , a time copy of the said notice. 2. On the copy of the notice so served as aforesaid, there was indorsed a memorandum in the words or to the effect following, that is to say [set forth the indorsement verbatim], (c) Sworn, &c. No. 295. Form to be Used in Cases where the Notice has been sent by Post, [d) In Chancery. Between, &c. [Set. forth the Fall Title of the Cause.] I , of , make oath and say as follows : — 1. I did on the ■ day of , put into the post- office at , a letter addressed to , at -, in which said letter was enclosed a notice in the words following, that is to say [set forth the notice of decree], (a) on which said notice was indorsed the words following, that is to say [set forth the indorsement, for which see p. 372]. 2. (e) In the said letter there was also enclosed a true copy of the order made in this cause, bearing date the day of , whereby it was ordered [set forth the (o) For form of notice, see " Memorandum of SerYice of Notice of Decree." (i) // Sy svbstituted service, say, " by delivering to and leaving with Mr. (the person named in the order hereinafter mentioned) at," &o. (c) For form of indorsement, see p. 372. id) Service by post has been allowed only in cases where the party thus served has been resident out of the jurisdiction, and although no special leave thus to serve has, in some instances, been obtained. It is presumed, however, that for such service special leave of the Court ought in all cases to be obtained, at any rate it would be safer to obtain such leave, especially in cases where the party sei-ved cannot be dealt with as a " consenting" party, for, by analogy of practice, a party served out of the jurisdic- tion, ought not only to be served pursuant to special leave of the Court, but is also entitled to further time to take any proceeding consequent upon such service, than is allowed by the General Orders. (e) If the notice has been thus served without special leave of the Court, the 2nd clause must of course be omitted. 374 AFFIDAVIT OF SERVICE OF NOTICE OF DECEEE. mandatory pwrt of the order directing service of notice hy post\,{a) Sworn, &c. Observation. Such of the following clauses as may be applicable in any particular case, must be added. If, in any case, the subject matter of any of such clauses is embodied in a separate affida- vit, the language must be varied accordingly. No. 296. Form of Clause to be added where an Infant, or Person of Unsoimd Mind, has been Personally served with the Notice of Decree. 3. (J) And I say that I did also on the said day of , serve the said with an order made in this cause bearing date the — ^ — day of , whereby it was ordered {set forth the mandatory part of the order, directing service on the infant, or person of unsound mind], by deliver- ing to and leaving with the said at , a true copy of the said order, and at the same time producing and showing to him the said original order duly passed and entered (c). No. 297. Form of Clause to be added where Substituted Service has been 3. (6) And I say that I did also on the day of , serve the said Mr. with an order made in this cause, bearing date the — — day of , whereby it was ordered \set forth the mandatory part of the order directing the substi- tuted service], by delivering to and leaving with the said Mr. , a true copy of the said order, and at the same time producing and showing to him the said original order duly passed and entered. (o) The form here given extends to service only, — but veiifioation of the signature of the party served to a letter acknowledging the receipt of the notice is also required. See form of clause, No. 299, p. 875. (J) For forms of clauses 1 and 2, as to service of the notice of the decree, see Forms Nos. 293 or 294, pp. 371 and 372. (c) For cases where some other person has been served on behalf of the infant, &c., the next form, (No. 297), may be adapted to the purpose. AFFIDAVIT OF SERVICE OF NOTICE OF DECEEE. 375 No. 298. Fy , as guardian of the infant defendant , pursuant to an order dated the day of , Before me, A London Commissioner to administer oaths in Chancery. Form of Oath. (To the Ouardian.) Is that your name and handwriting ? You do swear that so much of this answer of the infant defendant as concerns^ ihe said infant defendant you believe to be true — So help you God. No. 326. To the Answer of an Infant hy his Chiardian, the Guardian being also a party defendant. Form op Jurat. Sworn at , in the county of , this day of , by the defendant for himself, and also (a) The Forms given may also tie applied to any case where the party under disability is a person of unsonnd mind, answering by his guardian. If the guardian has iieen assigned in court, the Commissioner may administer the oath to the guardian upon production of the minutes of the order, but he should retain the answer in his possession until the order, as duly passed and entered, has been also produced. 394 FORMS OF JUEATS AND OATHS TO ANSWERS. as guardian of the infant defendant pursuant to an order dated the day of . Before me. A London Commissioner to administer oaths in Chancery. Form of Oath. (To the Gfuardian.) Is that your name and handwriting ? You do swear that so much of this answer as concerns your own acts and deeds is true to the best of your know- ledge, and that so much thereof as concerns the acts and deeds of any other person or persons therein named yon believe to be true — So help you God. You do also swear that so much of this answer as concerns the infant defendant you believe to be true — So help you Grod. {a) No. 327. To the Answer of an Infant by his Guardian — the Guardian and another being also parties Defendants. Form of Jurat. Sworn at , in the county of , this day of , by the defendant , and by the defendant , for himself, and also as guardian of the infant defendant , pursuant to an order dated the day of . Before me, A London Commissioner to administer oaths in Chancery. (a) The Form may also be applied to the caae where the defendant under disability I a lunatic answering by his committee, the committee being also a party defendant. The gnardian or committee need not sign his name more than once. forms of jurats and oaths to answers. 395 Form of Oath. (To the Defendant .) Is that your name and handwriting ? You do swear that so much of this answer as concerns your own acts and deeds is true to the best of your know- ledge, and that so much thereof as concerns the acts and deeds of any other person or persons therein named you believe to be true — So help you God. {To the Cruardian.) Is that your name and handwriting ? You do swear that so much of this answer as concerns your own acts and deeds is true to the best of your know- ledge, and that so much thereof as concerns the acts and deeds of any other person or persons therein named you believe to be true — So help you God. You do also swear that so much of this answer as concerns the infant defendant you believe to be true — So help you God. No. 328. To the Answer of a Defendant who is Deaf and Dumb, (a) Form of Jurat. Sworn at , in the county of , this day of Before me, A London Commissioner to administer oaths in Chancery. Form of Oath. Is that your name and handwriting ? You do swear that so much of this your answer as concerns your own acts and deeds is true to the best of your knowledge, and that so much thereof as concerns the acts and deeds of any other person or persons therein named you believe to be true— So help you God. (o) For the mode of proceeding in this case see ohservationa on page 383. 396 FOBMS OF JURATS AND OATHS TO ANSWERS. No. 329. To the Answer of a Defendant who is Blind. Form of Jurat. Sworn by the defendant at , in the county of , this day of , the witness to the mark (a) \(yr, signature, as the case may be,] of the said defendant having been first sworn that he had truly, distinctly, and audibly read over the contents of this answer to him the said defendant, he being blind, and that he saw him make his mark thereto [or, sign his name thereto, as the case may be]. Before me, A London Commissioner to administer oaths in Chancery. Form of Oath. (To the Witness.) (b) Is that your name and handwriting ? (c) You do swear that you have tmly, distinctly, and audibly read over the contents of this answer to the de- fendant , and that you saw him make his mark thereto [or, sign his name thereto, as the case may be] — So help you God. (To the Defendant.) You do swear that so much of this your answer, as concerns your ovm acts and deeds, is true to the best of your knowledge, and that so much thereof as concerns the acts and deeds of any other person or persons therein named you believe to be true — So help you God. (a) See note (i) on p. S80. (6) See note (d) on p. 380. (e) See note (e) on p. 380. FORMS OP JURATS AND OATHS TO ANSWERS. 397 No. 330. To the Ansioer of a Married Woman, answering s^araie/rom her ffusband. Form of Jurat. Sworn at , in the county of , this day of , by the defendant , pursuant to an order dated the day of , by which she is at liberty to answer separate from her husband, (a) Before me, A London Commissioner to administer oaths in Chancery. Form of Oath. Is that your name and handwriting ? You do swear that so much of this your answer as concerns your own acts and deeds is true to the best of your knowledge, and that so much thereof as concerns the acts and deeds of any other person or persons therein named you believe to be true — So help you God. No. 331. To the Answer of a Peer. Form of Declaration. Declared upon honour at , in the county of this day of , Before me, A London Commissioner to administer oaths in Chancery. (o) The Order giving leave to answer separately, should be prodaced to the Com- missioner. If this is not done, no reference should be made to the Order in the Jurat, as in such case the Order will be required by the officer when the answer is presented for filing. 398 forms of jurats and oaths — to answers. Form of Declaration. Is that your Lordship's name and handwriting ? You do declare upon your honour that so much of this answer as concerns your own acts and deeds is true to the hest of your knowledge, and that so much thereof as concerns the acts and deeds of any other person or persons therein named you helieve to be true. No. 332. To the Answer of a Quaker. Form of AFFraMAT. Affirmed at , in the county of , this day of . Before me, A London Commissioner to administer oaths in Chancery. Form op Affirmation. Is that your name and handwriting ? I, , (a) do solemnly, sincerely, and truly declare and affirm, that so much of this answer as concerns my own acts and deeds is true to the best of my knowledge, and that so much thereof as concerns the acts and deeds of any other person or persons therein named I believe to be true. No. 333. To the Answer of one " who shall have been a Quaker or Moravian." (6) Form of Affirmat. Affirmed by the defendant , he having been one of the people called Quakers [or, of the United Brethren (a) The affirmant must UmEelf repeat the form of words. (b) See 1st and 2nd Vict. cap. 77. FORMS OF JURATS AND OATHS TO ANSWERS. 399 called Moravians, as the case may be], at , in the county of , this day of . Before me, A London Commissioner to administer oaths in Chancery. Form of Affirmation. Is that your name and handwriting ? I, , (a) having heen one of the people caUed Quakers lor, of the United. Brethren called Moravians, as the case may be], and entertaining conscientious ohjections to the taking of an oath, do solemnly, sincerely, and truly declare and affirm that so much of this answer as concerns my own acts and deeds is true to the best of my knowledge, and that so much thereof as concerns the acts and deeds of any other person or persons therein named I believe to be true. No. 334. To the Answer of a Separatist, {b) Form of Affirmat. Affirmed and declared (pursuant to the Act 3 & 4 Will. 4, c. 82,) at , in the county of , this day of Before me. A London Commissioner to administer oaths in Chancery. Form of Affirmation. Is that your name and handwriting ? I, {a) do, in the presence of Almighty God, solemnly, sincerely, and truly affirm and declare that I am a member of the religious sect called Separatists, and that the taking of any oath is contrary to my religious belief, as well as essentially opposed to the tenets of that sect. (a) See note (o) on p. 398. (b) See 3rd and 4th WUl. 4, cap. 82. 400 FORMS OF JURATS AND OATHS DECLARATION. And I do also in the same solemn manner affirm and declare, that so much of this answer as concerns my own acts and deeds is true to the best of my knowledge, and that BO much thereof as concerns the acts and deeds of any other person or persons therein named I believe to he true. No. 335. To the Answer of a Defendant Swearing " in the manner most Binding on his Conscience." (a) Form of Jdrat. Sworn at , in the county of , pursuant to the Act 1 & 3 Vict., c. 105), this , day of . Before me. A London Commissioner to administer oaths in Chancery. TO DECLAEATIONS. No. 336. To a Statutory or ordinary Declaration. Form of Declarat. Declared at , in the county of , this day of — ■ — . Before me, A London Commissioner to administer oaths in Chancery. (o^ 1st & 2nd Vict. cap. 105 ; and for the mode of proceeding in such cases see p. 384. forms of jurats and oaths — declaration. 401 Form of Declaration. (To the Declarant.) Is that your name and handwriting ? You do solemnly and sincerely declare that the contents of this your declaration are true. No. 337. By a Foreigner, through an Interpreter. Form of Declarat. Declared by the declarant , at , in the county of , this day of , through the interpretation of , of , the said having been first sworn that he had truly, distinctly, and audibly interpreted the contents of this declaration to the said declarant, and that he would truly and faithfully interpret the declaration about to be administered unto him. Before me, ^ A London Commissioner to administer oaths in Chancery. Form of«Oath. {To the Interpreter.) You do swear that you well understand the lan- guage, and that you have truly, distinctly, and audibly interpreted the contents of this declaration to the decla- rant , and that you will truly and faithfully interpret the declaration about to be administered unto him — So help you God. Form of Declaration. {To th-e Declarant, through the Interpreter^ Is that your name and handwriting ? You do solemnly and sincerely declare that the contents of this your declaration are true. 403 FOKMS OP JUBATS AND OATHS TO DISCLAIMERS, &C. TO DISCLAIMEES. The only distinction necessary to be observed in the case of a Disclaimer is the following : — ^In the jurat the terms " Answer and Disclaimer," or, the term " Disclaimer" only, as the case may be, must be used, instead of "Answer." No. 338. TO EXAMINATIONS. To Answer and Examination of a Party Interrogated after Decree. FOBM OF JUEAT. Sworn at , in the county of , this day of Before me, A London Commissioner to administer oaths in Chancery. Form of Oath. {To the Examinant.) Is that your name and handwriting ? You do swear («) that so much of this your answer and examination as concerns your own acts and deeds is true to the best of your knowledge, and that so much thereof as concerns the acts and deeds of any other person or persons therein named you believe to be true — So help you God. (a) In cases where tlie party examined is an affirmant, or in an; manner priTileged, the form of jurat &o. most, of coarse, be altered accordingly. POEMS OF JUEATS AND OATHS EXHIBITS. 403 FOEM OF MEMOEANDUM TO BE INDOESED ON EXHIBITS. No. 339. Form of Indorsement in a Cause or Matter. In Chanceby. * Between , and others . . . Plaintiffs, (a) and > , and others . . . Defendants. or. In the matter of, &c., &c. This is the paper writing marked A. referred to in the affidavit of , sworn in this cause \or, matter], this day of Before me, A London Commissioner to administer oaths in Chancery. The foregoing form answers the purpose in any case, whether the document referred to by the deponent in his affidavit is re- ferred to as being " produced and shown," or as being " here- unto annexed." "Where the document is referred to in the affidavit as " being produced and shown" to the deponent, the commissioner, before he signs the indorsement, should inquire of the deponent whether he has seen the document. Where the document is referred to in the affidavit as "here- tmto annexed," it should be annexed at the time the affidavit is sworn, and, in such case, no such inquiry by the commissioner as before suggested is necessary. TO PLEAS. The only distinction necessary to be observed in the case of a Plea is this : — instead of the term " Answer," say " Plea and Answer," or " Plea " only, as the case may be. (a) Every certificate on an exMbit referred to in an affidavit (to he used at Chambers) must have the short title of the cause or matter. — Begulation 12, 8th August, 1857. D n 2 404 FOEMS OF JURATS AND OATHS RECOGNIZANCE. TO A EECOGNIZANCE. No. 340. By a Receimr, 8fc. (a) Form of Certificate. Taken and acknowledged by , , ^nd , at ^ , in the county of , this day of . Before me, A London Commissioner to administer oaths in Chancery. Form administered. You have informed yourself of the contents of this recognizance, and of your liabilities under it, and are content. No. 341. Form of Oath by an Hindoo. (6) Form of Jurat. Subscribed with a seal, and sworn to by the above- named , at , in the county of , through the interpretation of , he the said having been pre- viously sworn that he had first translated and explained to him the said , the contents of this affidavit in the Hindostanee language, and that he perfectly understood the contents of the same, and that he would truly interpret the oath about to be administered to him, and that the seal used by the said was his own signet, wherewith he always signed documents, according to the custom of his own country. Before me. A London Commissioner to administer oaths in Chancery. (a) tteceirers' recognizsuices are to be filed at the Iniolinent office. (h) For forms of oaths to interpreter and party, tee p. 392. FORMS OF OATHS — COMJUSSIONER — WITNESS. 405 No. 342. Form of Oath to be taken by a Person appointed by the Court of Chancery in Ireland a^s Extraordinary Commissioner to take Affidavits, 8fc., in England. Form of Oath. I, , (a) do solemnly and sincerely swear that I will duly and faithfully, and to the best of my skill and power, execute the ofiBice of an Extraordinary Commissioner of the Court of Chancery in Ireland, for the purposes mentioned in the Act passed in the 55th year of the reign of His Majesty King George the Third, intituled " An Act for the better examination of Witnesses in the Court of Equity in Ire- land, and for empowering the Courts of Law and Equity in Ireland to grant Commissions for taking affidavits in all parts of Great Britain ;" and shall in every respect, to the best of my knowledge, conform to the rules and orders of the said Court and provisions of the said Act — So help me God. No. 343. Form of Oath to be Administered by an Examiner to a Witness. You swear that you shall true answer make to all such questions as shall be asked you, without favour or affec- tion to either party, and therein you shall speak the truth, the whole truth, and nothing but the truth— So help you God. (o) The form of the oath is to be repeated by the commissioner ; and see 65 Geo. 3, c 157, o. 6, referred to on p. 348. PART VII. Peeliminaet Note. Ang Person may Apply for a Certificate Shomng the State of a Cause, (a) For the purpose of enabling all persons to obtain precise information as to the state of any cause, and to take the means of preventing improper delay in the ])rogress thereof, any Clerk of Records and Writs is, at the request of any person, whether a party or not in the suit or matter inquired after, to furnish a certificate, specifying therein the dates and general description of the several proceedings which have been taken in any cause in the Record and Writ Clerks' office. — Order 43, 3rd April, 1828. Sow Certificates are to be AppKed for. Printed or lithographed forms of certificates applicable to most cases are provided, and may be procured from the stationer in the office, A certificate will be made out by the officer, upon presen- tation, by the party requiring it, of a printed and duly stamped form, or, for cases to which the printed forms are not applicable, of a sheet of paper stamped with a 48. Chancery fee fund stamp. The presentation of the blank form, with a memorandum written on the back of it, showing the name of the cause and the reference or distinctive mark, is generally all that is required from the solicitor. But, inasmuch as the purpose for (o) But any Buoh oertifieate, if taken by a solicitor who is not concerned for any of the parties to the eause, or by a party who is a stranger to the cause, could not, uf course, be used by such solicitor or party in the ordinary prosecution of the proceed- ings in the cause. PBEPAEATION AND DELIVERY OUT OF CERTIFICATES. 407 which the certificate is required, in many cases determines the form of certificate to be given, it will materially assist the officer in making out a right form of certificate, if, in addition to the name of the cause and the reference, the kind of certi- ficate required, and the application or occasion upon which it is to be used, are also stated. For instance, thus : — " v. , — 1857, G, No. 10. — Certificate of answer filed, to be used on motion to dismiss." Sow Certificates are to he Prepared. In some cases the full title of the cause is to be given in the certificate, and although in other cases where the names of all the parties to the cause need not he set out in the title, still the name of the particular defendant or plaintiff to whom the certificate is intended more particularly to apply, should never- theless be set forth in conjunction with the name of the first defendant or plaintiff. The cases in which the requirement last referred to is to be complied with are indicated in the forms thus : — " Short Title of Cause," and a reference by a foot note to the preceding observation, thus : — " see p. 407." In all cases where a certificate is made out in a cause after the bill has been amended, one title of the cause as amended should be given, and, after the title, the words " By original and amended Bill " should be added. It is not proper to set forth two titles — the title of the original, and also of the amended bill. "Where new parties have been brought before the Court by order to revive, or supplemental order, if the party on whose behalf the order is obtained is a new party, a fresh title is to be given, naming the applicants for the order as plaintiff, and the parties as against whom the order is obtained as defendants, and adding, after the title, the words " By Order to Revive," or " By Supplemental Order," as the case may be. If the only new parties are those as against whom the order is obtained, a new title is not necessary ; their names may be added to the names of the former parties, following after them thus : — " and also , by Order to Revive," and adding after the title the words " By Original Bill and Order to Revive " [or as the case may Je]. When Certificates mil he Delivered out. As a rule, certificates are not delivered out on the day on which they are bespoken. They will, however, in all cases, be ready for delivery on the morning of the following day. 408 FOEMS OP CERTIFICATES BILL. When the Date of a Certificate previously taken may be Altered. Where a certificate has not been used, and, by reason of the delay, it becomes necessary to certify as from a subsequent date, a new certificate need not be taken, but upon production of the certificate previously taken the date will be altered, the certificate being first re-examined with the entry. And, in such cases, the alteration in the date, as also any other alteration required, will be authenticated by the seal of the office. FORMS OF CERTIFICATES. The forms of certificates are to be varied as circumstances may require. Such circumstances are very numerous. It would be scarcely possible, therefore, to provide a form or forms to meet, every case. The forms given will, however, be found to comprise those which are in more frequent and general use. No. 344. Certificate of BniL Filed. In Chancery. [Name of Judge.] [Short Title of Came.] [Reference.] These are to certify that the plaintiff's bill in this cause was regularly filed on the — — day of (a), as appears by my book. Dated this day of - C. R. & W. The foregoing form of certificate is more usually required on moving for an injunction, exparte. If the injunction is to be moved for upon notice, the certificate need not be taken. If required for registering, a lis pendens, although the form of the certificate is embodied in the memorial, payment of the usual fee of four shillings is required. (a) Ifthe-bill has been amended, add, "and that the same was duly amended on the day of ." FORMS OF CERTIFICATES — BILL. 409 No. 346. Certificate of Peinted Copt of Bill not being Filed. {Pursuant to Undertaking.) In Chancery. iWame of Judge.] [Short Title of Came.] [Reference.] These are to certify that the written copy of the plaintiff's bill in this cause, filed on the day of , has been taken off the file, no printed copy of the same having been filed pursuant to the undertaking on the said written copy, dated the day of , as appears by my book. Dated this day of . C. R. & W. A printed copy of a biU not having been filed pursuant to undertaking given, the taxing master will, without further order, upon production to him of a certificate in the foregoing form, tax the defendant bia costs of the suit. — Order 3, 7th August, 1853. No. 346. Certificate of Amendment of BrtJ.. (N^ot Requiring a Further Answer, — to be Used on Motion to Dismiss.) In Chancery. [Name of Judge.} {Short Title of Cause.] {a) [Reference.] These are to certify that the plaintiff's bill in this cause was regularly filed on the day of , and that the answer of the defendant , was regularly filed on the day of ; and that the said bill was duly amended (o) See p. 407. 410 POEMS OP CERTIFICATES VOLUNTARY ANSWER. on the day of , pursuant to an order dated the day of , since which no further proceedings have been had as appears by my book. Dated this day of . C. E. & W- No. 347. Certificate op Amendment op Bill, and Voluntary Answer Thereto, (a) In Chancery. {Name of Judge.\ [Short Title of Came.] (5) [Beference.'] These are to certify that the plaintiff's bill in this cause was regularly filed on the • day of , and that the same was duly amended on the day of ; and that a voluntary answer was filed thereto by the defendant , on the day of , since which no further proceedings have been had, as appears by my book. Dated this day of . C. E. & W. Heretofore the evidence supplied by a certificate (in con- nection with a motion to dismiss for want of prosecution) was more frequently used before the Eegistrar upon passing the order, the evidence supplied to the court being by affidavit. It seems, however, now more generally desired by counsel to have such certificalte in court. If an order to dismiss is made upon the motion, and the Eegistrar upon passing the order again requires a certificate, and that such certificate shall speak as from the latest moment, a new certificate need not be taken ; but, upon production of the certificate previously had, the date will be altered, the cer- tificate being first re-examined with the entry. (o) Suoh certificate is usually reqiiiie'l foy Ihe puiposcs of a motion to dismiss. (6) See p. 407. FORMS OF CERTIFICATES — APPEARANCE. 411- No. 348. Certificate of Appearance Entered. Where the Appearance has been Entered hy the Defendant in Person, or hy a Solicitor. In Chancery. [Name of Judge.] [Short Title of Cause.'] {a) [Reference.] These are to certify that the plaintiff's bill in this cause was regularly filed on the day of , and that an appearance hath been entered thereto {b) for the defen- dant , by his solicitor [or, in person, as the case may be] (c), as appears by my book. Dated this day of . C. K. & W. No. 349. Certificate of Appearance Entered. Where the Appearance has been Entered at the Instance of the Plaintiff. In Chancery. [Nams of Judge.] [Short Title of Cause:] [a) [Reference.] These are to certify that the plaintiff's bill in this cause was regularly filed on the day of , and that an appearance, at the instance of the plaintiff, was entered thereto for the defendant , on the day of , as appears by my book. Dated this day of . C. R. & W. (a) Seep. 407. , , , , ,, . < (61 If it be desired that the iite of tlie entry of the appearance should be shown, say, "thatanappearance was entered thereto on the <3fy "f , — -•" (c) If to be used on a motion to dismiss, adH, "since which no further proceedings have been bad." 4:1a FORMS OP CERTIFICATES APPEARANCE. No. 350. Certificate of Entry of Special Appearance. In Chancery. [Ifame of Judge.] [Short Title of Came.] {a) {Reference.] These are to certify that the plaintiff's hill in this cause was regularly filed on the day of , and that a special appearance, pursuant to the 37th General Order of the 26th August, 1841, was entered thereto for the defen- dant , hy his solicitor [or, in person, as the case may be], on the day of , as appears by my book. Dated this day of . C. R. & W. No. 351. Certificate of No Appearance being Entered. In Chancery. {Name of Judge."] {Short Title of Came.J (a) [Meference.'] These are to certify that the plaintiff's bill [or, claim, as the case may be] was regularly filed on the day of , and that no appearance hath been entered thereto for the defendant , as appears by my book. Dated this day of . C. R. & W. (a) See p. 407. FORMS OF CEKTIFICATES ANSWER. 413 No. 352. Certificate of Answer Filed. In Chancery. [Name of Judge.l [Short Title of Game.'] (a) [Reference.] These are to certify that the answer of the above-named defendant , in this cause was regularly filed on the day of , as appears by my book. Dated this day of . C. E. & W. In cases where the foregoing form of certificate is required for the purpose of furthering the discharge of a party in con- tempt for not answering, the delivery out of the certificate wiU not be delayed until the following day ; but, if desired, it will be made out and delivered at once, — that is, as soon as it is ascertained that the answer can be filed. No. 363. Certificate of Answer Filed. {To he Used on a Motion to Dismiss.) (6) In Chancery. [Name of Judge.] [Short Title of Came.] (a) [JReference.] These are to certify that the answer of the above-named defendant , in this cause was regularly filed on the day of , since which no further proceedings have been had, as appears by my book. Dated this day of . C. R. & W. (o) See p. 407. (6) See observation appended to Form, No. 347, on p. 410. 414 FORMS OF CERTIFICATES — ANSWER. No. 354. Certificate of the Filing op an Answer to an Amended Bill. In Chancery. [iV«me of Judge.] [Short Title of Came.] (a) [Beference.] These are to certify that the plaintiff's bill in this cause was regularly filed on the day of , and that the same was duly amended on the day of , pursuant to an order dated the day of , and that the answer of the above-named defendant to the said amended bill, was regularly filed on the day of , as appears by my book. Dated this day of — — . C. B. & W. No. 855. Certificate op the Filing op a further Answer. In Chancery. [Name of Judge.] [Short Title of Came.] {a) [Reference.] These are to certify that the further answer [or, second further answer, as the case may be] of the above-named defendant in this cause was regularly filed on the day of , as appears by my book. C. E. & W. Dated this day of . The foregoing form of certificate is used for the purpose of setting down the old exceptions (for insufficiency). Such certifi- (o) See p. 407. FORMS OF CERTIFICATES ANSWER EXCEPTIONS. 415 cate should be obtained and acted on before fourteen days from the filing of the further answer have elapsed. See Article 3 of Order 18, and November, 1850. No. 356. Certificate of Answer not being Filed. In Chancery. [Name of Judge.] [Short Title of Cause.] (a) [Seference.] * These are to certify that the plaintiff's bill in this cause was regularly filed on the day of (5), and that an appearance (c) was entered thereto for the defendant , on the day of , and that no plea, answer, or demurrer hath been filed thereto, by or on behalf of the said last-named defendant, as appears by my book. Dated this day of . C. E. & W. No. 357. Certificate of the Filing of Exceptions for Insufficiency. In Chancery. [Mame of Judge.] [Short Title of Cause.'] (a) [Meference.] These are to certify that exceptions to the answer of the above-named defendant in this cause for insufficiency were regularly filed on the day of , as appears by my book. Dated this day of . C. E. & W. (o) See p. 407. , , , . i lb) Jf amended, add, "and that the same was duly amended on the day of ." . . „ (c) ijf at the instance of the plaintiff, say " at the instance of the plaintiff. ' 416 FORMS OP CERTIFICATES — EXCEPTIONS. The foregoing form of certificate should be obtained and acted on after the expiration of eight days, but within fourteen days, from the filing of the exceptions. — Order 14, 2nd Novem- ber, 1850. In a case of election, exceptions for insufficiency should be set down within four days from the service of a notice from the defendant. — Order 13, 8nd Novemberj 1850. In the absence of any such notice from the defendant, the plaintiflf has fourteen days for setting down the exceptions as stated above. "Where a plaintiff files exceptions for insufficiency as cause against dissolving an injunction, such exceptions are to be set down for hearing at the latest on the day next after showing such exceptions as cause. — Order 15, 2nd November, 1850. No. 358. Certificate of the Filing of Exceptions for Scandal. In Chancery. {Name of Judge.^ [Short Title of Cause.] (a) [Meference.] These are to certify that exceptions to the answer [or, bill, as the case may be] of the above-named defendant [or, plaintiff] in this cause, for scandal, were regularly filed on the day of , as appears by my book. Dated this day of . C. R. & W. The foregoing form of certificate should be obtained and acted on within six days after the filing of the exceptions. — Order 24, 2nd November, 1850. (o) See p. 407. CERTIFICATES — NOTE — REPLICATION CAVEAT. 417 No. 359. Certificate op the Filing of a Traversing Note. In Chancebt. iName of Judge.] [Short Title of Cause.] (a) [JReference.] These are to certify that a traversing note, in the form prescribed by the 52nd [or, 53rd, or, 54th, as the case may be] General Order of the 8th day of May, 1845, was duly filed by the plaintiff in this cause, as against the above- named defendant , on the day of , ' as appears by my book. Dated this day of . , C. K. & W. No. 360. Certificate op the Filing or a Eeplication. In Chancery. [Name of Judge.] [Short Title of Cause.] (a) [Reference.] These are to certify that the plaintiff's replication, whereby he joined issue with the above-named defendant in this cause, was regularly filed on the day of , (J) as appears by my book. Dated this day of C. E. & W. No. 361. Certificate of the Filing op a Caveat against a Claim to Revive, (c) In Chancery. [Name of Judge.] [Full Titles of Original Claim [Reference.] and Claim to Revive^ These are to certify that the plaintiff's claim to revive was regularly filed on the day of , and that a (a) See p. 407. (4) If to he wsed on a motion to dismiss, add, "since which no further proceedings have been hai See also observation on p. 410. (c) For form of caveat and practice relating thereto, see "Caveat." B E 418 CERTIFICATES — CAVEAT — SOLICITOR ON RECORD. caveat objecting to this suit being revived against the above named defendant was duly filed, by or on behalf of the said defendant, on the day of , as appears by my book. Dated this day of . , C. E. & W. No. 362. Certificate of no Caveat being Filed Against Claim TO Revive. In Chancery. \_N'atne of Judge.] [Full Titles of Original Claim [Reference.] and Claim to Revive.] These are to certify that the plaintiff's claim to revive in this cause was regularly filed on the day of , and that an appearance was entered thereto for the defendant , on the day of , and that no caveat against reviving the said suit has been filed, as appears by my book. Dated this day of -. , C. R. & W. No. 363. Certificate of Solicitor on Record. For Plaintiff. In Chancery. [Name of Judge."] [Short Title of Cause.] {a) [Reference.] These are to certify, that the plaintiff's bill in this cause was regularly filed, on the day of , by Mr. , as his solicitor (b), and that the said Mr. now acts as solicitor for the said plaintiff in this cause, as appears by my book. Dated this day of . , C. R. & W. (5) If an order to change has been obtained, add a clause as in Form. No. 365, p. 419. CERTIFICATES SOLICITOR ON ffECORD. 419 No. 364. Certtficate OF Solicitor on Record. For Defendant. In Chancery. [N'ame of Judge.] [Short Title of Cause.] (a) [Reference.] These are to certify that the plaintiff's bill in this cause was regularly filed, on the day of , and that an appearance was entered thereto for the defendant , on the day of , by Mr. , as his solicitor, and that the said Mr. now acts as the solicitor of the said defendant in this cause, as appears by my book. Dated this day of . , C. R. & W. No. 365. Certificate of Solicitor on Record. For Defendant — where an Order to Change Solicitor has been Obtained. • In Chancery. [Name of Judge.] [Short Title of Cause.] (a) [Reference.] These are to certify that the plaintiff's bill in this cause was regularly filed, on the day of , and that an appearance was entered thereto for the defendant , on the day of , by Mr. , as his solicitor, and that by an order, dated the day of , Mr. was appointed solicitor of the said defendant , in the place and stead of the said Mr. , and that the said Mr. now acts as the solicitor of the said defendant in this cause, as appears by my book. Dated this day of . , C. R. & W. (a) See p. 407. B E 2 480 CERTXPIC.4TES — MEMORANDUM OF SERVICE. No. 866. Ceetifioate of Entry op Memorandum op Service of Notice op Decree. In Chancery. [IVame of Judge.] [Short TUk of Cause.] ^Reference.] These are to certify that a memorandum of service of notice of the decree made in this cause by His Honor the , dated the day of , upon the under- mentioned persons, viz : — and was duly entered on the day of , as appears by my book. Dated this day of . , C; E. & W. " A copy of every Certificate by a Eecord and Writ Clerk of the entry of a memorandum of service of notice of a Decree or Order is to be left at Chambers." — See E^gulation 8, 8th August, 1857. For the practice as to entering a memorandum of service of notice of decree, see " Memorandum of Service of Notice of Decree." No. 367. Certificate of Entry op Memorandum op Service op Copy Bill. There is no prescribed form of certificate applicable to this case. The entey of the memorandum of service is certified or indicated by a memorandum written on the face of the order CERTIFICATES OF DEPOSIT OF DOCUMENTS. 421 directing the entry. Such memorandum is signed hy the Clerk of Records and Writs, and is, usually, in the following form, viz : — " day of . Memorandum of service, entered as directed within. C. E. & W." No. 368. Certificate of Deposit of a Document. In Chancery. [_Name of Judge.l [Short Title of Cause.] [Reference.'] These are to certify that the inventory [or, deed, as the case may be] directed to be deposited with the Clerk of Records and Writs in whose division this cause is, by an order made in this cause, dated the day of , has been duly deposited pursuant to the said order, as appears by my book. Dated this day of . C. R. & W, No. 369. Certificate of Deposit of Documents, {a) In Chancery. [Name of Judge.] [Short Title of Cause.'] [Reference.] These are to certify that certain documents, papers, and writings, purporting to be the several documents, papers, and writings, directed to be deposited with the Clerk of Records and Writs in whose division this cause is, by an order made in this cause, dated the day of — , have been deposited pursuant to the said order, as appears by my book. Dated this day of . , C. R. & W. (o) The form of certificate, No. 369, has not yet been used. It is, therefore, to be regarded merely as a proposed form. 4!J2 CERTIFICATE — INEOLMEMT — CAVEAT. No. 370. Certificate of Inkolment of a Decree or Order. In Chancery. [Name of Judge.] [Short Title of Came.] [Reference.] These are to certify that the decree made in this cause by His Honor the , bearing date the day of , was duly inrolled at the request of , on the day of , as appears by my book. Dated this day of . C. R. & W. No. 371. Certificate of Entry of Caveat against the Inrolment OF A Decree or Order. In Chancery. [Name of Judge.] [Short Title of Cause.] [Reference.] These are to certify that a caveat against the inrolment of the decree made in this cause by His Honor the , bearing date the day of , was diily entered on the day of , as appears by my book. Dated this day of . C. R. & W. No. 372. Form of Certificate to be Written on Certified Copies OF Pleadings, &c. (a). The title of the cause is not prefixed to the certificate. The (a) No fee is payable for sach certificate. CERTIFICATE TO SET DOWN CAUSE. 423 certificate is appended at the end of the copy of the pleading, or other document, and in the following form, viz. : — Pursuant to the Act of the 14th & 15th Victoria, chapter 99, section 14, I hereby certify the above to be a true copy of [or, extract from, as the case may be] the record in my custody. Clerk of Records and Writs of the High Court of Chancery. For Form of Certificate for Paying the Lower Scale of Fees of Court, see Form No. 1. p. 6. CERTIFICATE TO SET DOWN CAUSE. Preliminaet Observations. The mode of setting down a cause for hearing should be determined upon under the advice of counsel. Causes, in which the proceedings have been commenced by bill, are usually set down for hearing, either after replication filed, or upon bill and answer, or upon an order to take the bill as confessed, or upon motion for decree. Sometimes the three first-mentioned modes are combined in one cause — for instance, with some of the defendants the plaintiff may join issue and enter into evidence; as to other defendants, he may be willing to hear the cause on bill and answer; and as against another defendant, he may have ob- tained an order to take the bill pro confesso. The heading, "I. Setting down cause — after Replication filed," on p. 426, is not to be taken as indicative of the setting down of a cause in cases where replication as against all the defendants has been filed, and the combination of modes re- ferred to do not exist, but only as indicative of those cases in which a replication has been filed, whether against all or some only of the defendants. The heading, "II.," on p. 428, may be taken as strictly expla- natory of the whole circumstances of the pleadings. For causes can only be set down to be heard on bill and answer, in cases 424 PRACTICE AS TO SETTING DOWN CAUSES. where bill and answers (but no replication) have been filed. The only exception that can arise in any such case, is where the cause is to be heard on an order to take the bill as con- fessed against any one of the defendants. Any defendant, who is stated by the bill to be out of the jurisdiction, and who has not appeared, may be altogether dis- regarded in obtaining a certificate to set down the cause. But if any such defendant has appeared, in gi-anting the certificate the state of the cause and requirements of the practice must be regarded as to such defendant, in like manner as to any ordi- nary defendant. If a defendant has died, and his interest has ceased, or has survived to other persons, who are before the court, a mere verbal representation, by the plaintiff's solicitor, of the fact of the death of such party is sufficient, and the certificate to set down the cause will be delivered out, notwithstanding the proceedings do not, from the entry, appear to be complete as against such defendant. Many points of practice arise upon applications for certificates to set down causes. In some cases, where there are several defendants, and the modes of proceeding against them adopted by the plaintiff have been various, and perhaps intricate, the review of the state of the cause necessary to be taken, in order to certify that the cause is in a fit state to be set down for hear- ing, involves the consideration of many points of practice. For this reason it is scarcely possible to detail, and provide for, the numerous variations from the ordinary conditions which may arise. The following observations will, however, it is believed, be found to contain sufficient information with reference to cases of most frequent occurrence. Causes are to be set dovm for Hearing upon CertifixMtes from the Clerks of Records and Writs. All causes required to be heard before the Lord Chancellor, or one of the Vice-Chancellors [or the Master of the Rolls], are to be set down for hearing by the Registrars, upon production to them of the certificate of the proper officer that the same is in a fit state to be set down for hearing, without any fiat, order, or direction from the Lord Chancellor for that purpose. — Order, 23rd February, 1850. When a Second Certificate to set down a Cause will he Delivered out. A second or further certificate to set down a cause wiU be given out, if the first has been lost, or if the cause has been struck out of the Registrar's list. PRACTICE AS TO SETTING DOWN CAUSES. 425 The Name of the Judge is to appear in the Certificate. In every cause in which, the original bill is marked with the words " Lord Chancellor," or with the words " Master of the Rolls," the Clerk of Records and Writs, to whom it belongs to give or sign the certificate that the cause is ready for hearing, is to see that such certificate is marked with the words " Lord Chancellor," or with the words "Master of the Rolls," in conformity with the like words marked on the original bill. — Order 2, 5th May, 1837. And the title of the Vice-Chancellor to wliose court any cause is attached, is also to be marked in every certificate granted under the preceding order. — Order 2, 11th November, 1841. The Registrars are not to set down any cause in which the certificate of the cause being ready for hearing is not so marked.— Order 4, 5th. May, 1837. Before what Judge Causes are to he Heard, and other Applications are to be made. All causes are to be set down for hearing before, and all appli- cations to the court in causes (except for orders as of course) are to be made to, the Judge to whose court the cause is attached, unless the Lord Chancellor shall make special order to the contrary. — See Orders 5th May,- 1837, and Order 5, 11th November, 1841. In the interval between the sittings of the Court, applications for special orders may be made to any Judge of the court. Any order so made, is, if made by a Judge other than the Judge to whose court the cause is attached, to be marked as having been made by the Judge to whose court the cause is attached, and is to be deemed to be the order of such Judge. But any such order can be discharged or varied only by the Lord Chancellor. —See Order 15, 5th May, 1837. (a) Registrars' Requirements on setting down Causes. The solicitor applying to have a cause set down for hearing, is to indorse on the Record and Writ Clerk's certificate his name or firm, and the {name of the] party for whom he acts, {aj As to applications by summons at chambers during vacations, see Order 2, 1st June, 1854. 426 SETTING DOWN CAUSE — AFTER REPLICATION FILED. and also the date [the date of such qppMcation] . — Registrars' Regulations, 1st March, 1850. In suits instituted by bill or claim, guardians ad litem must be assigned for infant defendants before the cause can be set down for hearing. The Registrar requires that the solicitor shall state upon the certificate to set down the cause that a guardian ad litem has been thns assigned, or in cases where there are no infant defendants, that " there are no infants." Causes are to be set down on the day the certificate is left, and a memorandum thereof indorsed on the certificate by the clerk {the Registrar's clerk), who is to afl&x his initials thereto. — Registrars' Regulations, 1st March, 1850. If a cause is to be heard as a short cause, the certificate of counsel that it is a cause proper to be heard as a short cause must be produced. But this certificate alone will not enable the plaintiff to have the cause in the paper for hearing before the time allowed to the defendant to appear in court — that is, where a subpoena to hear judgment has .been served, the cause cannot, although certified as proper to be heard as a short cause, be put into the paper for hearing before the return day named in the subpoena, or, where a cause is to be heard on motion for decree, before the fuU time given by the notice of motion has expired. If, however, the defendant will consent, then the cause may, in either of the above cases be advanced, and put in the paper by the Registrar on an earlier day. IN SUITS BY BILL. I. S'ETTING DOWN CaUSE — AFTER REPLICATION FiLED. Time within which the Came is to be set down for Hearing. Where replication has been filed in the cause, the plaintiff is to set down his cause, and obtain and serve a subpoena to hea,r judgment within four weeks after the time for closing the evi- dence has elapsed {a), otherwise any defendant may move to dismiss the bill for want of prosecution. — Article 45, Order 16, 8th May, 1845. . The " four weeks " allowed for settmg down the cause and obtaining and serving a subpoena to hear judgment, and the "month" allowed (after the expiration of the time for closing the (o^ If the time for -closing the e-ridence expiree in the Long Vacation, then such time is extended to the fifth day of the ensuing Michaelmas Term. SETTING DOWN CAUSE — AFTER REPLICATION FILED. 427 evidence) for cross-examining any witness who has made an affidavit intended to be used at the hearing of the cause, are cotemporaneous. When the Certificate to set down th^ Came may he Obtained. A certificate to set down a cause, in which a rephcation has been filed, will be delivered out, upon request, at any time after the time for closing the evidence has elapsed. Where the time for closing the evidence has been enlarged by order, with liberty, or with a direction, to set down the cause in the meantime, and such order has been left for entry with the Clerks of Records and Writs, the certificate to set down the cause will be delivered out before the time for closing the evidence has elapsed. Where, in cases other than such as are referred to in the pre- ceding paragraph, it is desired to set down the cause for hearing before the time for closing the evidence has elapsed, the certifi- cate will be granted upon the plaintiff's leaving with the Clerks of Records and Writs a consent (signed by the solicitors for the plaintiff, and for all the defendants with whom issue has been joined) in the following form, viz.: — No. 373. In Chancery. We consent to this cause being set down for hearing forthwith, notwithstanding the time for closing the evi- dence has not elapsed. Dated, &c. Solicitor for the plaintiff. Solicitor for the defendant Solicitor for the defendant . Such form of consent, while it enables the parties to have the cause set down sooner than it otherwise could be, does not preclude them from continuing to take the evidence; but, of course, they must be careful to complete the evidence before the time for closing the evidence elapses, or before the cause is put into the paper for hearing. 428 SETTING DOWN CAUSE — ON BILL AND ANSWER, Form of Certificate. "Where a cause is to be set down for hearing after replication filed, the following form of certificate is used, viz. : — ■ No. 374. In Chanceet. [Name of Judge.] [Short Title of Came.] [Reference.] These are to certify that this cause is in a fit state to be set down for hearing, as appears by my book. Dated this day of . , C. E. & W. When a Defendant may set down the Came. If, after the time for closing the evidence has elapsed, the plaintifif neglects to set down the cause to be heard, any defen- dant, after the expiration of four weeks, may set the same down at his own request, instead of proceeding to dismiss the biU. for want of prosecution, and may obtain a subpoena to hear judg- ment, and serve the same on the plaintiff. — Order 116, 8th May, 1845. In such case the words " at the request of the defendant ," must be written on the certificate under the title of the cause. II. — Setting Down Cause — to be heard on Bill and Answer. If the plaintiff is advised to set down the cause to be heard on bill and answer only — that is, without filing a replication against any defendant in the cause, or hearing the cause on motion for decree^-and if all the defendants who are within the jurisdiction of the court have answered — ^whether volun- tarily or otherwise — a certificate to set down the cause will be granted. Of&ce copies of the answers must have been taken by the plaintiff. The times within which a plaintiff, in order to* avoid a notice of motion to dismiss for want of prosecution, must set down the cause to be heard on bUl and answer, are the same as those allowed for filing a replication : see therefore " Replication." SETTING DOWN CAUSE ON MOTION FOE DECREE. 429 The certificate to set down the cause for hearing on bill and answer is the same in form as that used in the preceding case. A cause cannot be set down to be heard on bill and answer against a defendant as to whom a traversing note has been filed. But a cause may be thus set down, notwithstanding that, as to one or more of the defendants, the cause is to be heard on an order to take the bill as confessed. III. — Setting Down Cause — to be heard on Motion for Decree. WTien the Certificate to set down the Cause may he Obtained. The plaintiff, in any suit commenced by bill, is at liberty,- a^ any time after the time for answering shall have extpired (but before replication), to move the court, upon giving one month's notice to the defendant or defendants, for such decree or decretal order as he may think himself entitled to. — See 15 & 16 Vict, c. 86, s. 15, and Order 22, 7th August, 1852. The ultimate limitation of time comprises such a period as on the expiration of which the defendant may (before repli- cation) serve a notice of motion to dismiss the bill for want of prosecution. As to the times at the expiration of which (in cases where the plaintiff has required and obtained an answer from the defendant) a defendant may thus move to dismiss for want of prosecution, see Article 1 of Order 114, 8th May, 1845, recited on p. 667; also Articles 1, 2, and 3 of Order 115, 8th May, 1845, recited on p. 669. And, as to the times at the expiration of which (in cases where the plaintiff has not required an answer from the defendant) a defendant may thus move to dismiss for want of prosecution, see observations under the heading " Dismissal of Bill by a Defendant where no Answer has been required," commencing on p. 669. If the plaintiff wishes to set down the cause to be heard on motion for decree before the time for answering has elapsed, a consent in the following form, and signed by the solicitors of all those defendants whose time for answering has not elapsed, must, on bespeaking the certificate, be left with the officer : — 430 SETTING DOWN CAUSE — ON MOTION FOE DECREE. No. 376. In Chanceey. V. "We consent to this cause being set down to be heard on motion for decree forthwith, notwithstanding the time for filing an answer has not elapsed. Dated this day of • . For the Defendant For the Defendant ■ Where the plaintiff has required (by interrogatories) an answer from a defendant, the certificate to set down the cause on motion for decree will be given out, even though such answer may not have been filed. Where the plaintiff wishes to waive an answer from one or more of several defendants who have been required to answer, he should obtain an order, as of course, for leave " to amend the interrogatories filed in this cause by striking out so much thereof as requires an answer fi-om the defendant ." The following is the form of certificate to set down the cause, in cases where the cause is to be set down for hearing on motion for decree, viz. : — No. 376. In Chancery. [Ifams of Judge.] iReference.] [Short Title of Cause.] These are to certify that this cause is in a fit state to entitle ' the plaintiff to move for a decree, as appears by my book. Dated this day of . C. E. & W. SETTING DOWN CAUSE — ON MOTION FOR DECREE. 431 Regulations with Reject to Setting dotcn Causes to be heard on Motion /or Decree. Every notice of motion for decree or decretal order is to be entered with the Eegistrar, who is to make out a list of such motions, and the same are to be heard according to such list, unless the Court makes order to the contrary. — Order 27, 7th August, 1852. By a regulation in the Eegistrars' office, it is required that the certificate shall be acted on, — that is, the cause shall be set down, — within seven days after service of the notice of motion for decree ; and the certificate is to be indorsed by the solicitor thus : — Notice served day of . Expires day of . There are no infant defendants, (a) [Wame, Sfc., of the Solicitor.] [Date.] A motion for decree may be heard as a short cause upon the certificate of counsel, and, if the parties consent, it may be advanced in the paper, and come on for hearing before the month expires. In what cases a Cause may he set down for Searing on Motion for Decree as against some only of the Defendants. In Choyon v. Qwyon — 1852, G, No. 81 — the cause had been set down for hearing after replication filed. When the cause came on for hearing, it was ordered to stand over, with liberty to amend by adding parties. On the 19th December, 1854, His Honor the Vice- Chancellor Wood directed a certificate to be granted to set down the cause as against the new defendants on motion for decree. The same course was followed in Jesse v. Bennett — 1855, J, No. 34. In such cases the certificate expresses that " this cause is in a fit state to entitle the plaintiff to move for a decree against the defendants , as appears," &c. Upon such certificate the cause is again put into the paper, and notice thereof being given to the original parties, when the cause comes on for hearing, it is heard generally. (a) If there are, say, "guardians ad litem have been assigned for the infant defendants." 432 SETTING DOWN CAUSE — IN SUITS BEFORE 1862. A cause may be set down to be heard on motion for a decree, where a traversing note has been filed against the defendant. IV. — Setting down Cause to be heard on an Order to TAKE THE BiLL AS CONFESSED — AGAINST A SOLE DEFEN- DANT. In this case the cause is set down by the Eegistrar upon an order drawn up upon a petition as of course, and not upon any certificate from a Clerk of Eecords and Writs. V. — Setting down Cause foe Hearing — in suits in which THE Bill was Filed before the 20th May, 1837, oe 11th November, 1841. In granting a certificate to set down any cause in which the bill was filed before the 20th May, 1837, or 11th November, 1841, but not yet set down for hearing, the requirements of the practice, with respect to the state of the cause (as respects the parties and the state of the pleadings), and necessary to be complied with before a certificate upon which to set it down for hearing can be granted, will be considered by the officer, and, if not already complied with, will be made known to the solicitor. But, in any case (as to all such causes), before the certificate can be granted, the solicitor applying for the same must comply with the requirements appearing in the follow- ing observations : — The cause, if not already marked for a Judge, must be so marked before the certificate can be granted. The course of proceeding is as follows, viz. :— The solicitor applying for such certificate is to state (a) whether any order disposing of any 'plea or demurrer, or any special order upon merits shown by answer, or affidavit, has been made in the cause. If, any such order having been made, the last of such orders was made by the Lord Chancellor or Vice -Chancellor, the cause is to be marked for a Vice- Chancellor (the party, under the authority of Order 4, 11th November, 1841, selecting which Vice- Chancellor's court he pleases). If, any such order having been made, the last of such orders was made by the (a) The application ty the solicitor to the ClerVs of Eecords and Writa is made by wntten notice to mark the cause for a particular judge. For form of notice, see p. 433. ORDER OF SUCCESSION AMONG THE VICE-CHANCELLORS. 433 Master of the Kolls, the cause is to he marked for the Master of the Rolls.— See Order 3, 5th May, 1837. If no such order has heen made in the cause, the party may desire that the cause shall be marked either for a Vice-Chan- cellor or for the Master of the Rolls, as he pleases. The determination is to be expressed by a notice in writing in the following form, viz. : — In Chancery. No. 377. I hereby request that this cause may be marked for, and attached to, the court of His Honor the . Dated this day of . [N'ame, Sfc, of the Solicitor.] To the Clerk of Record and Writs. Upon receiving such notice, the Clerks of Records and Writs are to cause " the enteies of the cause in their books and indexes to be marked with such distinguishing words or marks " as shall signify before what Judge the cause is to be heard, or to whose court the cause is attached. — See Order 3, 5th May, 1837, and Order 4, 11th November, 1841, Order of Succession among the Vice-Chancellors. The following is the order of succession among the Vice- Chancellors since 1841 : — Vice-Chancellor Shadwell. Knight Bruce. Turner. ROLFE. {a) WiGRAM. Kindersley. Paricer. SXUART. Wood. (a) Now Lord Cranwortli. 434 SETTING DOWN CLAIM FOE HEABING. VI. — Ikteeloctjtoet Applications to the Couet. In suits in which the Bill was filed before the ^Qth May, 1887, or 11th Novernber, 1841, and which have not yet been attached to the Court of any Judge. Any party desiring to apply to the Court for any purpose, by motion or petition, in any cause in which the circumstances mentioned in the foregoing heading exist, must first apply, by notice, to mark the cause for, and attach it to the court of a Judge. In so doing, such party must be governed, in his selection of the Judge, by the same rules as govern the application for a certificate to set down the cause ; see, therefore, pp. 432 and 433. The notice so given is to determine the court to which any such cause shall be attached, unless removed therefrom by any special order to be made by the Lord Chancellor ; and in such causes, no partj' or person is to move, petition, or take any proceedings (by way of application to the Court) until such notice has been given. — See Order 4, 11th November, 1841. IN SUITS BY " CLAIM." VII. — Setting down Claim for Hearing. Sow a Claim is to be set down for Searing. Eveiy claim filed under the Orders of Court of the 22nd April, 1850, is to be set down for hearing with the Eegistrar, which will be done, without fee, and as soon as the writ of summons has been served on the defendant (or, if more than one, on all the defendants), upon production to the Eegistrar, by the plaintiff, or his solicitor, of a certificate from the Clerk of Eecords and Writs of the filing of such claim. — ^Notice, 6th June, 1850. Form of Certificate to set doum Claim. The following is the form of certificate upon which a claim is to be set down for hearing : — SETTING DOWN CLAIM FOE HEARING. 436 No. 378. In Chancery. [Name of Judge.] [Full Title of Cause.] [Reference.] These are to certify, that the plaintiff's claim in this cause -was regularly filed on the day of (a), and that an appearance has heen entered thereto for the dc fendant hy his solicitor [or, in person, as the ease may be],{b) as appears by m/hook. Dated this day of -. C. R. & W. When a Certificate to set down a Claim for Hearing will be Granted. A certificate to set down a claim will be granted immediately the claim is filed, but it should not be acted on until after the defendant has been served with a copy of the claim ; and, in any case, care must be taken that the claim does not come into the paper for hearing before the time fixed (in the indorsement on the copy served^ for showing cause, unless the defendant consents. Requirements hy the Registrar on setting doicn Claims. The certificate, when presented at the Registrars' office, is to be indorsed thus : — Cause to be shown on the day of (c). There are no Infants, or, Guar;lians ad litem have been assigned for the Infant Defendants. [Name of Solicitor.] [Date.] (a) If amended, add, "and that the same was daly amended on the day of ." (S) If no appearance entered, say, "and that no appearance hath been entered thereto for the defendant." (c) The seal or motion-day next following after the last serrice of the claim. " F 2 4S6 SETTING DOWN SPECIAL CASE FOE HEARING. All claims filed under the Orders of Court of the SSnd April, 1850, are to be set down in the Eegistrar's book in the same list as the causes. They may be so set down by either party for the day appointed for showing cause, and are to be heard indiscriminately with the causes. But such of them as the parties may desire to have heard as short causes, are to be so marked upon production to the Registrar of a similar certi- ficate from counsel as is required in the case of short causes, and will be heard as such on the days appointed for hearing short causes. — Registrars' Office Notice, dated 7th November, 1850. The foregoing notice governs the practice in each of the courts. Solicitors are requested to supply the Master of the Rolls with a copy of all claims, previously to their coming into the paper for hearing. — Notice, 8th November, 1851. As either party may set down the claim for hearing, and as claims are now heard with causes, it is desirable that notice of setting down the claim should be served. Each party should be prepared at the hearing, with the usual affidavits as to service of a copy of the claim, and of notice of setting down the claim. IN SUITS BY " SPECIAL CASE." VIII. — Setting down a " Special Case " for Hearing. When a " Special Case " may he set down for Searing. So soon as all the defendants shall have appeared to the special case, the same may be set down for hearing, and sub- poenas to hear judgment issued and served according to the practice of the court. — 13 & 14 Vict. c. 35, s. 13. Where mme of the Parties are Infants, 8fc. "Where none of the parties to the special case are infants, or otherwise under disability, the case may be set down for hearing without order, and upon the following form of cer- tificate : — SETTING DOWN SPECIAL CASE FOR HEABING. 437 No. 379. In Chancery. {Name of Judge.] {Short Title of Came.] ^Reference.'] By Special Case. These are to certify that this cause is in a fit state to be set down for hearing, as appears by my book. Dated this day of . C. E. and W. Such certificate, when presented at the Registrars' office, is to be indorsed thus : — There are no infants, lunatics, or married women. [Name of Solicitor.] [Date.] Where any of the Parties are Infants, 8fc. Where any married woman, infant, or lunatic is party to a special case, and when appearances have been entered for all the parties, application is to be made to the Court for leave to set down the case. The mode of applying is fully detailed in the 13th section of the Act 13 & 14 Vict. c. 35 ; and the form of certificate required upon such application is as follows : — No. 380. In Chancery. {Name of Judge.] {Full Title of Cause.] [Reference.l These are to certify that the Special Case in this cause has been duly filed, and that appearances have been entered thereto for all the defendants, as appears by my book. Dated this day of . C. E. & W. 438 SETTING DOWN CAUSE FOE " FUBTHEK DIRECTIONS." If, upon such application, an order is made, the Special Case IS set down for hearing on such order. A Special Case may be set down for argument as a " short cause," on the usual certificate that it is fit to be heard as a " short cause." — See Dok v. Atkinson, 3 Jur. N. S. 41 • and 28 L. T. 64. FURTHER DIRECTIONS (a) AND FURTHER CONSIDERATION. (6) Causes set down for hearing for further directions, or for further consideration, are not thus set down upon any cer- tificate from the Clerks of Records and Writs. But inasmuch as the practice with respect to such proceedings is useful and necessary, and its insertion here will render the information given, with respect to setting down causes generally, more com- plete, the author has ventured to insert it. IX. — Setting Down Cause to be Heabd foe Furthee DiEECTIONS. Mode of Proceeding to Set Bourn a Cause for Further Directions. All causes for further directions to be heard before the Lord Chancellor, or one of the Vice-ChanceUors, are to be set down by the Registrars for hearing, on orders drawn up by them upon petition to the Lord Chancellor, left with the Registrar, without any fiat or direction from the Lord Chancellor. — Order, 38rd February, 1850. The solicitor applying to have a cause for further directions set down for hearing, is to subscribe on the petition his name or firm, and the [name of the] party for whom he acts, and the date [the date of the application}. — Registrars' Regulation, 1st March, 1850. The petition comprises in the particulars set forth, state- ments as to the date of the decree, the making and filing of the report, and the confirmation thereof, and prays that the cause may be set down for hearing for further directions. The order is drawn up at the order of course seat, and, when obtained, served upon the solicitors of all the defendants. (a) Where the cause is to come on for farther directions npon a Master's Heport (b) Where the cause is to come on for further consideration upon a Chief Clerk's certificate. r SETTING DOWN CAUSE FOR " FURTHER CONSIDERATION." 439 If the cause is before the Master of the Rolls, the petition is to be addressed to the Master of the Rolls. The order is drawn up by the secretary of the Master of the Rolls, served upon the solicitors of all the defendants, and then produced, together with the order absolute confirming the report, to a clerk at the order of course seat in the Registrars' office. Causes (to be heard on further directions) are to be set down on the day the petition is left, and a memorandum thereof indorsed on the petition by the Registrar's clerk, who is to affix his initials thereto, and the order is to bear date on that day. Registrars' Regulations^ 1st March, 1850. X. — Setting Down Cause to be Heard for Further Consideration. Mode of Proceeding to set down a Cause for further Con- sideration. When any cause shall, at the original or any subsequent hearing thereof, have been adjourned for further consideration, such cause may, after the expiration of eight days, and within fourteen days from the filing of the certificate or report of the chief clerk, be set down by the Registrar for further considera- tion, on the written request (a) of the solicitor for the plaintiff, or party having the conduct of the cause, and after the expira- tion of such fourteen days, the cause may be set down by the Registrar on the written request of the solicitor for the plain- tiff, or for any other party. The cause, when so set down, is not to be put into the paper for further consideration until after the expiration of ten days from the day on which the same was so set down, and is to be marked in the Cause Book acordingly ; and notice thereof (6) is to be given to the other parties in the cause at least six days before the day for which the same may be so marked for further consideration. — Order, 4th March, 1853. (o) For form of request, see Form No. 381, p. 440. (b) For form of notice, see Form Sfo. 382, p. 440. 440 SETTING DOWN CAUSE FOE " FURTHER CONSIDERATION.' No. 381. Form of Bequest to Registrar to set dovm Cause far Further Con- sideration (a). In Chancery. I request that this cause, the further consideration whereof was adjourned by the order of the day of , may be set down for further consideration before his Honor the . Dated , &c. Solicitor for No. 382. Form of Notice of Cause being set down for Further Con- sideration (a). In Chancery. Take notice that this cause, the further consideration whereof was adjourned by the order of the day of , was on the day of set down for further consideration before his Honor the , for the dny of . Yours, &c.. Solicitor for . To Mr. Solicitor for , Where the Cause originated in Chambers by Summons. Where any cause originating in chambers shall, at the original or any subsequent hearing thereof, have been ad- iourned for further consideration, such cause may, after the expiration of eight days, and within fourteen days from the (o) See Schedule to Order, 4th March, 1853. SUMMONS ADJOURNED FOR " FTJETHEE CONSIDERATION." 441 filing of the certificate of the chief clerk of the Judge to whose court the cause is attached, he brought on for further con- sideration by a summons, to he taken out by the plaintiff or party having the conduct of the cause, and after the expiration of such fourteen days, by a summons to be taken out by any other party. And such summons is to be in the form pre- scribed by the Order No. 1 of the 16th October, 1852, and set forth in the Schedule A. thereto ; and the object of the applica- tion may be stated as follows ; — " That this cause, the further consideration whereof was adjourned by the order of the day of , 185 — , may be ftirther considered." This summons is to be served six clear days before the return. — See Regulation 18, 8th August, 1857. If the further consideration is not pursued at chambers, but is adjourned into court, the cause is set down by the Registrar upon production of a note from the Chief Clerk in the following form, viz. : — No. 383. Master of the Rolls, or, Vice-Chancellor , at Chambers. In the matter of the estate of, &c. against The further consideration of this matter and cause is adjourned into court to be set down in the Cause Book after the causes already set down for further consideration. Dated this day of . Chief Clerk. N.B. — Notice hereof to he given to the solicitors of all parties. The notice to be given to the parties of thus setting down the cause is to be in the following form, viz. :— 443 PEOCEEDINGS IN ABATED OR COMPROMISED SUITS. No. 384. In Chancery. In the matter of the estate of, &c. against Take notice, that this cause, the further consideration whereof was adjourned by the order of the day of , has been set down to be further considered in court for the day of . Dated this day of - Yours, &c., Solicitor for To Mr. , Solicitor for . XI. — Proceedings to be taken by the Plaintiff, in Cases WHERE A Cause has become abated or compromised, AFTER BEING SET DOWN FOR HEARING. Where any cause shall become abated, or shall be compro- mised after the same is set down to be heard, the solicitor for the plaintiff is to certify the fact to the Registrar where the cause is so set down, who is to cause an entry thereof to be made in his Cause Book ; and the solicitor is to be allowed the fee of 6s. 8d. for such certificate, if he certifies the fact as soon as the same shall come to his knowledge. — Order 39, 3rd April, 1828. Where the cause has been marked " abated " in the Regis- trar's book, upon revival the cause will be restored upon pro- duction of the order to revive, and without any certificate from the Clerks of Records and Writs. But this observation applies exclusively to cases in which a bill of revivor only has been filed, or an order to revive only has been obtained. If a bill of revivor and supplement, or a supplemental bill, has been filed, a certificate that the cause is in a fit state to be set down for hearing will be required, in like maimer as where a cause is set down after original bill filed. PART VIII. Peeliminaky Note. Who may Inrol an Order or Decree. Any person may inrol an order, if he is interested in and is a party to such order. — See Smith's Ch. Pr., 6th edit. (1857), p. 470. What Orders may be Inrolled. Orders made in Court. The question whether there are any orders of the Court which may not he inrolled does not often arise in practice. But, as it is stated in some of the books of practice, and autho- rities are cited in support of the statement, though with some qualification and apparent doubt, that mere interlocutory orders, made upon motion or petition, which do not decide any of the merits of the cause, are not the subject of inrolment, a few observations are here offered. In practice, orders made upon motion or petition, and whe- ther bearing directly or indirectly upon the merits of the cause or not, are frequently inrolled ; and see a reported case, viz., Williams v. Page, Weekly Reporter, Annual Report of Cases, 1856-7, p. 67. And such practice seems further justified by the circumstance of a provision in the practice, under which orders made at chambers may be inrolled. For if orders made upon applications by summons at chambers may be inrolled, it seems but reasonable and consistent that orders made upon ^^^ WHAT bRDEES MAT BE INEOLLED. interlocutory applications to the Court, by motion or petition, should also be capable of being inroUed. However, as before observed, orders made upon interlocutory apphcatiOns to the Court are, in practice, frequently inrolled. Forms applicable to, and used in such cases, are therefore inserted in this work. Orders Made at Chambers. All orders made by the Master of the EoUs, or by any Vice- Chancellor at chambers, are to have the same force and effect as orders of the Court of Chftaceiy, and such orders may be signed and inrolled in like manner.— See 15 & 16 Vict. c. 80, s. 15. Orders made wpon " Special Case." Decrees and orders made upon special cases being sub- ject to re-hearing, appeal, &c., may be inrolled in like manner as decrees and orders made in suits instituted by bill. — See 13 & 14 Vict. c. 35, s. 33. Orders made under the " Joint-Stock Companies Wining- Up Acts." Although by 11 & 12 Vict. c. 45, s. 99, provision is made for appealing to the Lord Chancellor, or the Master of the Bolls, with respect to orders made under that Act (the Joint-Stock Companies Winding-up Act, 1848); still, inasmuch as it is enacted by section 102 of such Act, " That an appeal shall lie to the House of Lords from all orders to be made by the Court under this Act," such orders may be inroUed. Orders made by the Ecclesiastical Court in England. Orders made by the Ecclesiastical Court in England direct- ing payment of any sum of money may, for Ifie purpose of enforcing such orders by process of sequestration, issuing out of the Court of Chancery, be inrolled in the rolls of the Court of Chancery.— See 3 & 3 WiU. 4, c. 93, s. 2. Orders made by the Court of Chancery in Ireland. Orders made by the Court of Chancery in Ireland, " for payment of or for accounting for money," and to be enforced in England, may be inrolled in the rolls of the Court of Chan- cery in England. — See 41 Geo. 3, c. 90, s. 6. TIMES WITHIN WHICH ORDERS MAY BE INROLLED. 445 Orders made by the Court of the Commissioners for the Sale of Incumbered Estates in Ireland. Such orders as are mentioned in the foregoing heading, if to be enforced in England, may be inrolled in the rolls of the Court of Chancery in England.— See 12 & 13 Vict. c. 77, s. 14. Times within which Orders or Decrees mat be Inrolled. Inrolment — vnthin Six Months from the Date of the Order. An order or decree may be inrolled as soon as it is drawn up, passed, and entered, {a) All decrees and orders, and all dismissions pronounced or made in any cause, claim, or matter in the Court of Chancery to be inrolled, are to be so inrolled within six calendar months after the same shall be so pronounced or made respectively, and not at any time after without special leave of the Court, to he obtained in the manner next hereinafter mentioned. — Order 3, 7th August, 1852. Inrolment — after Six Months from the Bate of the Order. In case any party is desirous to inrol a decree, or order, or dismission, after the expiration of six calendar months from the time the same shall have been made, he is to obtain an order for that purpose ; and which order, unless made by consent of the adverse party, or on motion and notice to all the parties, is to be a conditional order in the first instance, but is to become absolute without farther order, unless cause is shown against it within twenty-eight days after service of the order. — Order 3, 7th August, 1862. No Order to be Inrolled after Five Years from its Date. No inrolment of any decree, order, or dismission is to be allowed after the expiration of five years from the date thereof. —Order 5, 7th August, 1852. Application to the Court for Enlargement of the Time. The Lord Chancellor, either sitting alone, or with the Lords Justices, or either of them, is at liberty, where it appears under the peculiar circumstances of the case to be just and expedient, to enlarge the periods appointed for a rehearing, or an appeal, or for an enrolment. — Order 6, 7th August, 1852. (a) And the opposite party is not prejndiced by the rnle, inasmuch as lie might have entered a caveat against the Inrolment, as soon as the order was pronounced. If, how- ever he had expressed an intention to appeal, and he is taken by emprise by the Inrolment, the Court will relieve him. — And aeeSackhousev. Wylde, 3 Jur. N. S. 398. ^46 APPEALING TO THE HOUSE OF LORDS. In practice, the applications referred to are usually made to the Judge to whose court the cause is attached. Where the party intends to Appeal to the Home of Lords. A party desiring to appeal to the House of Lords against an order or decree, must first inrol such order or decree. The times within which any such decree or order may be inrolled, under the provisions of the General Orders, are the same as in ordinary cases ; see p. 445. The general practice, with respect to the presentation of petitions of appeal to the House of Lords, will be found fully detailed in Smith's Chancery Practice, 6th ed. (1857), pp. 493 to 499. ' ■ It may, however, be convenient to set forth in this place a statement, showing the times within which any such petition should he presented. General Limitation of Time. A decree made during a session of Parliament, may be appealed against during the same session, provided that the petition of appeal is presented withiii fourteen days after the decree was made and entered, if the decree was made in any court of equity in England or Wales — or twenty days, if made in any court in Scotland — or forty days, if made in any court of equity in Ireland. If the petition of appeal is not thus presented during such session, it may be presented within fourteen days from the first day of any succeeding session after a recess : but see the next paragraph. Ultimate Limitation of Time. The petition of appeal must be presented within two years from the signing and inrolHng, or extracting, of the decree, and fourteen days after the first day of the session next following the two years. If the party appealing is under disability, the times here mentioned may be computed from the time when such dis- ability ceased. Peepabation op Docquet op Ineolment. Preliminary Observations. Until it becomes the practice that in an inrolment of a decree or order, it shall be necessary only to recite the order which is to be inrolled, the preparation of a docquet of inrol- PEEPARATION OF DOCQUKT OF INROLMENT. 447 ment will, in some instances, be an intricate and difficult task, notwithstanding the improvements which have been intro- duced into the practice with respect to the preparation of such docquets. By the present practice a recital of preliminary proceedings is, in most instances, required — and the modes of preliminary procedure in Chancery are now very numerous, and liable to much valuation. The author has felt, therefore, that if only one or two forms of docquet of inrolment were given, it would be necessary to introduee into such form or forms very many parentheses, and, inasmuch as the frequent use of the paren- thesis renders a form complicated, and thus materially inter- feres with its utility in actual practice, he has determined to give several forms, confining himself, however, to such cases as are of most frequent occurrence. First, a general form of docquet of inrolment of an order made on the hearing of a cause is set forth, to which is appended a note comprising forms of statements applicable to preliminary proceedings, other than those provided for in the form, but such, nevertheless, as are frequently taken in suits, commenced by Bill. Then three forms are given, applicable to cases in which the preliminary modes of procedure have been less complicated than, and generally of a character differing from, those provided for in the general form. These are followed by forms of docquets of inrolments, applicable to the following cases, viz. : — Claim, — Special Case, — Administration Summons, — Decree for Foreclosure, — Order on Further Direc- tions, — on Further Consideration, — Order made in a case where a bill and cross bill, or two suits, have been heard together, — where the inrolment is an inrolment of an order made after a decree or order in the same cause previously inroUed, — form applicable to suits instituted before Michaelmas Term, 1852, — forms of statements applicable to pleadings or other proceed- ings, filed or taken subsequently to the hearing of the cause, — and, lastly, forms applicable to cases in which the orders to be inrolled have been made on interlocutory applications, or ex- emplified and certified by other courts for inrolment in the Court of Chancery in England. What proceedings are to be recited in a Docquet of Inrolment. No part of the statements or allegations contained in any bill, answer, petition, affidavit, or report, is to be recited or stated in any inrolment of a decree or order, but it is sufficient to state in such inrolment, the filing of the bill, or petition, or service of the notice of motion, with the names of the parties 448 PEEPAEATION OP DOCQUET OF INEOLMENT. thereto, together with the prayer of the bill or petition, or notice of motion, the filing of the several answers and other pleadings, or proceedings and reports, whether confirmed or not, and the short purport or efiect of any decree or order made, had, put in, or taken before the date of the decree or order inroUed, and leading thereto. — Order 1, 17th March, 1843. The preceding order has had the effect of shortening inrol- ments, but it has, at the same time, rendered the preparation of them a more difficult task, inasmuch as in respect of the documents and proceedings to be recited, a more careful dis- crimination must now be exercised. For, as expressed by the General Order, such orders and proceedings only as lead to the ordev to he inroUed are to be recited. As a rule, therefore, in inrolling a decree, no order which may have been made on an interlocutory application in the cause, however important, is to be recited, unless its provisions bear, directly, upon the subject matter of the decree. Although several orders or decrees may be recited in an inrolment, yet the particular order adjudicated upon is the order inroUed. The adjudication com- mences with the words, " It is, therefore, this present day." — And see McDermott v. Kealey, cited in DanieU's Ch. Pr. 3rd. ed. vol. 2, p. 793. But where it is desired to inrol an order or decree, made or pronounced subsequently to the date of an order or decree which has been already inroUed, it is not necessary again to recite all the previous proceedings in the cause, as will be seen from the form of docquet of inrolment applicable to such case. Engrossing the Docquet. A docquet of inrolment should be written on brief paper, and in words at length from that part of the form commencing with the words " It is, therefore, this present day." A 3 J. Chancery fee fund stamp must be impressed upon the first sheet. This is the fee payable in the Kecord and Writ Clerks' office for inspecting and certifying the docquet. — See Schedule 3 to Orders, 30th January, 1857. Presenting tfie Docquet for Inspection by the Clerk of Records and Writs, and for the Signature of the Lord Chancellor. The docquet, when duly stamped, is to be left at the Record and Writ Clerks' office — and the originals or office copies of any orders or proceedings (other than the pleadings), recited therein, must be left with it. If any order for leave to inrol has been obtained, such order PRESENTING THE DOCQDET FOR SIGNATURE. 449 must likewise be left with the docquet, and if such order was obtained without notice, proof by affidavit of service thereof will be required. No decree or order is to be inrolled until the Clerk of Records and Writs, in whose division the cause or matter may- be, shall have inspected the docquet of such inrolment, and shall have certified thereon, that the statement of the pleadings, orders, reports, and proceedings therein contained is correct, and for such inspection and certificate the Clerk of Records and Writs is entitled to receive the sum of 3/. — Order 2, 17th March, 1843, and Schedule 3 to Order, 30th January, 1857. When the docquet is left for inspection, and signature, if a caveat against the inrblinent of the order has been entered, notice to prosecute such caveat will, on the same day, be given by the Clerks of Records and Writs to the party entering such caveat, (a) If it be a case in which the caveat has been entered with the Secretary of the Master of the RoUs (6), then the notice to prosecute the caveat will be given by the Secretary of the Master of the Rolls, immediately the docquet of inrolment is left with him by the Clerk of Records and Writs. At the expiration of twenty-eight days from the notice of the entry of the caveat, if the party entering the caveat has served an order to set down his appeal, the solicitor who left the docquet should apply at the Record and Writ Clerks' office for it, and it will be returned to him. If the party has not prosecuted the caveat, then the solicitor or party inrolling should inform the officer thereof, and instruct him. to procure the signature of the Lord Chancellor to the docquet. Proof that tibe party has not served an order to set down the appeal is not required, and the docquet of inrolment will be signed as of the day on which it was left for inspection and signature, and on which notice to prosecute the caveat was given, "as if no such caveat had been entered." (c) — Order 4, 7th August, 1852. (o) For form of careat and of notice of entry thereof, see " Caveat against Inrol- ment of Decree." (6) Caveats are entered with the Secretary of the Master of the Rolls, in cases where the order or decree to be inrolled has been made by the Master of the KoUs. (c) If the twenty-eight days allowed for prosecuting the caveat were to be recog- nised, then, in some cases, the party inrolling (happening perhaps to have left his docqnet for inspection and signature just before the expiration of six months from the date of the order to be inrolled) would have to obtain an order for leave to inrol nunc pro tunc, before the docquet could be presented to be signed. But if no caveat had been ent-ered, the docquet would have been presented and signed without an order for leave to inrol. And if, in cases where a caveat is not prosecuted, the docquet is to be "presented and signed os if no such caveat had been 450 PEOCEEDINGS AFTEE DOCQUET SIGNED. No decree or order made by a Vice-Chancellor is to be inrolled until the same is signed by the Lord Chancellor, Lord Keeper, or Lords Commissioners of the Great Seal for the time being. — 53 Geo. 3, c. 34, s. 3, and 5 Vict., c. 5, s, 32. If the order or decree to be inrolled was made by the Master of the EoUs, the docquet of inrolment will first be signed by the Master of the Eolls, and afterwards by the Lord Chan- cellor. If the order or decree was made by a Vice-Chancellor, then the Lord Chancellor alone signs the docquet, but he signs the order or decree also at the same time. Proceedings to be taken after the Lord Chancellor has Signed the Docquet of Inrolment. When the docquet is signed by the Lord Chancellor it will be returned to the solicitor or party presenting it, together with any papers he may have left with it, and thereupon such solicitor or party must engross upon parchment rolls the whole of the docquet, except the date, the signature of the Judge, and the Record and Writ Clerk's certificate. The rolls are to consist of long slips of parchment, about eight inches wide. When engrossed, the rolls are to be afSxed to each other, not one behind the other, but as one continuous roll. When rolled up the following form of indorse- ment should appear upon the open part of the roll. No. 385. In Chancery. Order \or. Decree]. \Name, 8fc., of the Solicitor or Parti/ Inrolling the Order.] Such roll and the docquet are then to be deposited at the office of the Rolls Chapel, Eolls Yard, Chancery Lane. No time is limited within which the roll should be thus deposited. It should, however, be deposited without delay. entered," it would seem that an order for leave to inrol ought not to be required : and that, consequently, in such cases, the docquet must, as stated in the text, be presented and signed as of the day on which it wjis first left for inspection and signature. TITLES OF LORD CHANCELLORS, &C. 451 TITLES OF THE LORD CHANCELLORS, &c., Who have been in Office since the 3rd day of September, 1841. Srd September, 1841, to Gth July, 1846. The Right Honorable John Singleton, Baron Lyndhurst, of Lyndhufst, in the county of Southampton, Lord High Chan- cellor of Great Britain. 6th July, '1846, to Ath June, 1850. The Right Honorable Charles Christopher, Baron Cotten- ham, of Cottenham, in the county of Cambridge, Lord High Chancellor of Great Britain. Ath June, 1850, to 20th June, 1850. The Right Honorable Charles Christopher, Earl of Cotten- ham, Lord High Chancellor of Great Britain. 20th June, 1850, to 16th July, 1850. The Right Honorable Henry, Lord Langdale, Sir Launcelot Shadwell, Knight, and Sir Robert Monsey Rolfe, Knight, Lords Commissioners for the custody of the Great Seal of the United Kingdom of Great Britain and Ireland. 16th July, 1850, to 28th February, 1852. The Right Honorable Thomas, Baron Truro, of Bowes, in the county of Middlesex, Lord High Chsmcellor of Great Britain. 28th February, 1863, to 1st March, 1852. The Right Honorable Sir Edward Burtenshaw Sugden, Knight, Lord High Chancellor of Great Britain. 1st March, 1852, to 29th December, 1852. The Right Honorable Edward Burtenshaw, Baron Saint Leonards, of Slaugham, in the county of Sussex, Lord High Chancellor of Great Britain. 2Qth December, 1852, to the Present Tims. The Right Honorable Robert Monsey, Baron Cranworth, of Cranworth, in the county of Norfolk, Lord High Chancellor of Great Britain. 452 GENERAL FORM OF DOCQUET OF INROLMENT. FOEMS OF DOCQUETS OF INKOLMENT OF DECEEES AND OEDEES. No. 386. GENEEAL FOEM («). "Whereas heretofore, that is to say, in or as of Term, in the year of our Lord, , , complainant, ex- hibited his hill of complaint in the High and Honorable Court of Chancery {b) against , defendants, thereto thereby praying , &c. (c). And whereas the said defendants were respectively duly served with printed copies of the said bill and appeared thereto (d). And whereas on the day of , the said complainants filed interrogatories for the examination of the said defen- dants in answer to the said bill (e), to which said bill and interrogatories the said defendants put in their answers (/). And whereas the said complainants replied, whereupon (a) Such General Form is applicable to a case in Thich the following proceedings have been taken, riz. — bill filed, appearances entered, interrogatories, answers, replication, and evidence filed, and decree made. For forms of statements of any preliminary proceedings wWcli may have been had or taken in the cause, other than such as are provided for in the General Form, see Note appended to such form, commencing on p. 454. (b) If the bill was amended, see No. 38?, p. 454. (c) Becite the whole of the prayer of the bill in the past tense, obseiTing that wherever the words "this Honourable Court," " this suit," or "this cause "oconr, the following terms must be used in lieu thereof, viz. : "the said court," "the said suit," or " the said cause," — also, that upon the first occurrence in the prayer of the bill of the word ' ' said, ' in reference to any person or thing previously mentioned in the bill, as, for instance, " the said testator, Kobert Williams," " that the said estate may be sold," "the said JohnSmith," or "that the said sum of 10,0002. may be invested," the language of the recital must be varied thus : — "Robert Williams, the testator in the said bill named," "that the estate in the said bill mentioned might be sold," "John Smith in the said bill named," or, "that the sum of 10,0002. in the said bill mentioned might be invested." {d) If some only of the defendants appeared, vary the statement accordingly. If an appearance was entered at the instance of the plaintiff, see No. 388, p. 455. If a special appearance was entered by any of the defendants, see No. 389, p. 465. .(e) If the interrogatories were amended, see No. 390, p. 455. If a new set of interrogatories were filed for the examination of the defendants in answer to the amended bill, see No. 391, p. 456. (/) If all the defendants did not file answers, vary the statement accordingly. If a plea or demurrer was filed by any of the defendants, and allowed by the Court, see No. 392i p. 456. See continuation of this note (/) on the next page. GENERAL FORM OP DOCQUET OF INROLMENT. 453 issue was joined with all the said defendants (a), and evidence duly taken (b), as in and by the said bill, inter- rogatories, answers, replication, and evidence duly filed and remaining as of record in the said court, reference being thereunto had, will more fully appear (c). And whereas the time for closing the evidence in the said cause duly elapsed, and the said cause being thus ready for hearing, a day was appointed by the said Court for the hearing thereof; and the same coming on accordingly on the day of , to be heard and debated, &c. [recite the whole of the decree in the past tense] {d), and which decree hath been duly signed by the Lord High Chancellor of Great Britain (e), pursuant to the Act of Parliament in that case made and provided (/). It is, therefore, this present day, that is to say, , the day of , in the year of the reign of Her Majesty Queen Victoria, and in the year of our Lord, {g), by the Right Honorable \insert the name, 8fc., of the Lord Chancellor, 8fc., in office at the time the decree was pronounced], Lord If a traTersing note was filed against anj of the defendants, see No. 393, p. 456. If interrogatories with concise statement prefixed have been filed ty a defendant for the examination of the plaintiff, a statement thereof should also be inserted. For form of statement, see No. 396, p. 457. (a) If the plaintiff did not by replication join issue with all the defendants, vary the statement accordingly. (5) In whateTer foi-m the evidence may have been taken, the words "and evidence duly taken" may be nsed. (c) If a memorandum of service of a copy of the bill has been entered against any of the defendants, the statement of such entry should be inserted here. For form of statement, see No. 394, p. 457. If an order to take the bill pro confesso has been obtained as against any of the defendants, a statement thereof should also be inserted here. For form of statement, see No. 395, p. 457. {d) In such recital, wherever the words "this court," "this cause," or "this suit " occur, the following terms are to be used in lieu thereof, viz. : " the said court," "the said cause," or "the said suit." (e) Or, hy the "Lord Keeper," or "Lords Commissioners for the custody of the dreat Seal of the United Kingdom of Great Britain and Ireland," if such are in office, holding the Great Seal at the time the decree is inroUed. (/) The Acts referred to are mentioned in the Preliminary Note on p. 449. The clause commencing "and which decree," &c., is to be inserted only in cases where the decree to be inrolled was made by a Vice-Chancellor, {g) These blanks are to be filled in with the day and date of the decree to be inrolled. 454 STATEMENTS TO BE INSERTED IN DOCQUETS, &C. High Chancellor of Great Britain [or. Lord Keeper, &c., as the case may be], and by the High and Honorable Court of Chancery, and the power and authority thereof, ordered and adjudged, &c. [recite in the present tense, and in words at length, the whole of the mandatory part of the decree], (a) I have inspected this docquet and hereby certify that the state- ment of the pleadings and decree herein contained is correct. At the request of the plaintiff [or, defendant, or, as the case may be]. NOTE. Containing forms of statements of preliminary proceedings, other than such as are stated or set forth in the preceding General Form, and to be inserted in docquets of inrolment as occasion may require. No. 387. Statement of Amendment of Bill. If the hill has been amended, after the words " exhibited his bill of complaint in the High and Honorable Court of Chan- cery" (6), say, " which said bill was afterwards amended pur- suant to an order of the said Court bearing date the day of , [-Zy' ainended several times, say " pursuant to several orders of the said Court, bearing date respectively the day of , and the day of , &c.], and as so amended was against," &c. J^ amended by adding or striking out the name of a plaintiff, (o) In sneh recital, wherever the words "This Conrt doth order," "It is ordered," or "This Court doth declare," occur, the foUowing terms are to be used in lieu thereof, viz. : "This Court doth order and adjudge," "It is ordered and adjudged," or, " This Court doth adjudge and declare." (6) The statement as to any amendment is always to follow after such words, whatever may be the date of the amendment. STATEMENTS TO BE INSEHTED IN DOCQUETS, &C. 455 after the preceding statement of the order or orders to amend, add, " and as so amended was by {set fwth the names of the plaintiffs as they appear in the bill when amended], plaintiflFs, against," &c. No. 388. Statement of Entry of Appearance hy Plaintiff. If an appearance was entered for any defendant at the instance of the plaintiff, instead of the words " and appeared thereto," say, " and the said defendafits , appeared thereto, and an appearance at the instance of the plaintiff, was duly entered thereto for the defendant ." (a) No. 389. Statement of Entry of a Special Appearance. If a fecial appearance was entered hy any defendant, instead of the words " and whereas the said defendants were duly served with printed copies of the said bill and appeared thereto," say, " and whereas the said defendants , were duly served'*with printed copies of the said bill and appeared thereto ; and the said defendant • was also duly served with a copy of the said bill (as appears by the memorandum of such service here- inafter mentioned), and entered a special appearance thereto in the form prescribed by the General Rules and Orders of the said Court in that case made and provided." No. 390. Statement of Amendment of Interrogatories. If the interrogatories were amended, after the words " in answer to the said bill," add, " which said interrogatories were duly amended, pursuant to an order of the said Court bearing date the day of ." (o) If entered pursuant to order, add, "pursuant to an order of the said Court, bearing date the day of ." 456 STATEMKNTS TO BE INSEETED IN DOCQUETS, &C. No. 391. Statement of Filing Amended Interrogatories. If interrogatories were filed for the examination of the defendants in answer loth to the original and to the amended bill, instead of the words " in answer to the said bill," say, " in answer to the original bill," and then add, " and on the day of the said plaintiffs filed interrogatories for the examination of the said defendants in answer to the amended bill." No. 392. Statement of Filing of a Demurrer or Flea. Where a demurrer or plea, has been filed by any defendant, and allowed by the court, instead of the loords " to which said bill and interrogatories the said defendants put in their answers," say, " to which said bill and interrogatories the said defendants put in their answers," and then add, " and the said defen- dant duly filed a demurrer [or, plea, as the case may 6e] to the said bill." (a) No. 393. Statement of Filing of a Traversing Note. If a traversing note was filed as against any of the defendants, instead of the words " the said defendants put in their answers," say, " the said defendants put in their answers ; " and then add, " And whereas on the : — : — day of the said plaintiffs filed a traversing note as against the defendant , the said last-named defendant not having put in any plea or demurrer to the said bill, or any answer to the said interrogatories within the time limited for that purpose." (a) No reference need be made to any demurrer or plea filed by a defendant, vbere Buoh demurrer or plea has been overruled. STATEMENTS TO BE INSERTED IN DOCQUETS, &C. 457 No. 394. Statement of Entry of Memorandum of Service of C(ypy Bill. If a memorandum of service of a copy of the hill has been entered against any of the defendants, before the words " And whereas the time for closing the evidence," &c., insert the following statement, vis., " And whereas hy an order of the said Court bearing date the day of , it was ordered that a memorandum of service on the defendant , of a copy of the plaintiff's bill should be entered in the Record and Writ Clerks' office, and which memorandum was'duly entered accordingly." No. 395. Statement of Order to take Bill Pro Gonfesso. If an order to take the hill pro confesso against any of the de- fendants has heen obtained, before the words, " And whereas the time for closing the evidence," &c., insert thefollomng statement, " And whereas by an order of the said Court, bearing date the day of , it was ordered [recite, in the past tense, the mandatory part of the order to take the hill pro confesso]. No. 396. Statement of Filing of Interrogatories, with Concise Statement Prefixed. If interrogatories (with concise statement prefixed) have been filed by a defendant for the examination of a plaintiff, after the words " as in and by the said bill, &c., will more fully appear," say, "And whereas on the day of , the said defendant, , duly filed interrogatories for the examination of the said plaintiff, , to which said interrogatories were prefixed a concise statement of the subjects on which discovery was sought; to which said interrogatpries and statement the said plaintiff put in his answer." 458 INEOLMENT — DECREE AFTEE REPLICATION. No. 397. Form of Indorsement on Docquet of Inrolment. In Chancery. Doequet of Inrolment of Decree. [Iftime, 8fc., of the Solicitor or Party inrolling the Decree.] No. 398. Form of Docqtjet of Inrolment of Decree. In Suit by Bill — Cause heard after Replication Filed, (a) "Whereas heretofore, that is to say, in or as of Term, in the year of our Lord , complainant, exhibited his bill of complaint in the High and Honorable Court of Chancery, against , defendants thereto, thereby prayiag [recite the prayer of the bill, observing the directions given in note {c), at the foet of p. 463]. And whereas the said defendants were duly served with printed copies of the said bill, and appeared thereto (5). And wherea,s the complainant replied, whereupon issue was joined with all the said defendants, and evidence duly taken (c), as in and by the said bill (c^), replication, and evidence (e), duly filed and remaining as of record in the said court, reference being thereunto had, will more fully appear. And whereas (ffl) The Form No. S98 is applicable to a case ia wMcli the following preliminary prDoeedinga have been taken, viz. : bill filed, appearance entered, no interrogatories nor answer filed; but replication and evidence ; or, bill, appearance, voluntary answer, and replication, but no evidence. (6) If all the defendants did not appear, vary the statement accordingly. If a voluntary answer was filed, say, " appeared and put in a voluntary answer thereto." (c) If no evidence was taken, omit the words " and evidence duly taken." (d) If any answer was filed, insert the word "answer." (e) If no evidence, omit the word " evidence." INROLMENT — DECREE — ON BILL AND ANSWER. 459 the time for closing the evidence in the said cause duly elapsed, and the said cause heing thus ready for hearing, a day was appointed hy the said Court for the hearing thereof, &c. [as in Form, JVo. f}86, on p. 453.] No. 399. Form of Docquet of Inrolment of Decree. In Suit by Bill — Cause heard on Bill and Answer, (a) Whereas heretofore, that is to say, in or as of Term, in the year of our Lord , complainant, exhibited his bill of complaint in the High and Honorable Court of Chancery against , defendants thereto, thereby praying [recite the prayer of the bill, observing the directions in-Mote (c), at the foot of page 452]. And whereas the said defendants were duly served with printed copies of the said bill, and appeared thereto. And whereas on the • day of , the said complainant filed interrogatories for the examination of the said defendants in answer to the said bill, to which said bill and interrogatories the said defendants put in their answers {b), as in and by the said bill, interrogatories, and answers duly filed and remaining as of record in the said Court, reference being thereunto had, will more fully appear ; and the said cause being thus ready for hearing, a day was appointed by the said Court for the hearing thereof, &c. [as in Form, Ifo. 386, on p. 453.] (a) Applicable to a case in which the following preliminary proceedings have been taken, viz. :— bill, appearance, interrogatories, and answer ; or, bill, appearance, and Tolnntary answer. (6) If no interrogatories were filed, the clause must of course be omitted. If a Tolnntary was filed, in lien of the concluding words of the preceding clause, "and appeared thereto," say, " and appeared and put in a Toluntary answer thereto." 460 INROLMENT — ORDER ON MOTION FOR DECREE. No. 400. Form of Docquet of Inrolment of Decree. In Suit hy Bill— Cause Seard on Motion for Decree, {d) Whereas heretofore, that is to say in or as of Term, in the year of our Lord , , complainant, exhibited his bill of complaint in the High and Honor- able Court of Chancery against , defendants thereto, thereby praying \recite the prayer of the bill, observing the directions in note (c), on p. 452] ; and whereas the said de- fendants were duly served with printed copies of the said bill, and appeared thereto ; and whereas on the day of , the said complainant filed interrogatories for the examination of the said defendants, in answer to the said bill, to which said bill and interrogatories the said defend- ants put in their answers (b), as in and by the said bill, interrogatories, and answers duly filed and remaining as of record in the said court, reference being thereunto had, will more fully appear; and whereas upon motion made unto the said Court on the day of , by Mr. , of counsel &c. [recite the whole of the decree made on the hmring of the motion for decree, and proceed with the words " and which decree," ^c, and generally as in Form, Ifo. 386, onp. 453.] No. 401. Form of Docquet of Inrolment of Decree. In Suit by Claim. "Whereas heretofore, that is to say, in or as of Term, in the year of our Lord , , plaintiff, filed his claim in the High and Honorable Court of Chancery, against , defendants thereto, thereby claiming [recite, (a) Applicable to a case in which the following pTeliminaiy proceedings hare been taken, yiz. : — hill, appearance, interrogatories, and answer ; or, bill, appearance, and voluntary answer ; or, bill and appearance only. (6) See note (6) on p. 459. INROLMENT — ORDER ON "CLAIM." 461 in the past tense, from that part of the claim which commences tcith the words " the said therefore claims," to the end] , as in and by the said claim duly filed and remaining as of record in the said Court, reference being thereunto had, will more fully appear, and to which said claim the said defendants appeared ; and whereas upon motion made unto the said Court before his Honor the , on the day of , by &c. {redte the decree made on the hearing of the claim and proceed loith the words " and which decree," ^c, and generally asAn Form-, No. 386, on p. 453.] No. 402. Form of Statement to he introduced into the Form of Docquet of Inrolment of an Order made on the Hearing of a Claim, as to Parties who may have been brought before the Cowrt, pursuant to the Certificate of the Judge or Master. And whereas, in pursuance of the order of the said Court hereinafter mentioned, bearing date the day of , and also in pursuance of the 18th of the General Orders of the said Court of the 22nd day of April, 1850, , the Judge to whose court the said cause is attached (a), by a certificate bearing date the day of , and filed on the day of , certified that upon the proceedings which had been had before him under the said order dated the day of , it appeared to him that ought to be made parties to the said suit, and attend or be at liberty to attend the proceedings before him under the said order ; and whereas in pursuance of the said certifi- cate the said were made parties to the said claim, and appeared thereto." (J) (o) If the claim was referred to the Master, say " , Esquire, the Master of the said court to whom the said canse was referred." (i) Although such certificate may have heen made subsequently to the date of the order to be Inrolled, the statement is necessary to show who are (all) the parties to the suit and the form of statement given may in any case be inserted after the words "to which said claim the said defendants appeared." However, in cases where the order to be inrolled is subsequent in date to the certificate, then the statement as to the 462 INEOLMENT OEDEE ON "SPECIAL CASE." No. 403. FoEM OP DocQUET OP Ineolment OP Ordee. In Suit hy " Special Case." Whereas heretofore, that is to say, in or as of Term, in the year of our Lord , , as complainants, and , , as defendants, filed a special case in the High and Honorable Court of Chancery in pursuance of an Act of Parliament made and passed in the 13th and 14th years of the reign of Her Majesty Queen Victoria, cap. 35, intituled " An Act to diminish the delay and expense of proceedings in the High Court of Chancery in England," for the opinion of the said Court upon the following ques- tions, viz : — \redte the questions, ohserving the directions given in note (c), at the foot of p. 452] ; and which said case was signed by , as counsel for the said complainants, and by , as counsel for the said defendants, as in and by the said special case duly filed, reference being thereunto had, will appear {a) ; and whereas all the said defendants to the said special case appeared thereto (6) ; and whereas the said special case being ready for hearing, a day was appointed by the said Court for the hearing thereof; and the said special case coming on accordingly on the day of , to be argued before the said Court in the presence of, &c. [recite the whole of the order made on tlie hear- ing of the special case, and proceed with the words " and which order," ^c , amd generally as in Form, No. 386, onp. 453.] certificate may be placed in the order of its date, — that is to Bay, it may follow after the recital of the order made on the hearing of the claim, and would run thus : — "And whereas m pursuance of the said order, tearing date," &c. (o) If an infant, married woman, or person of unsound mind is a party, and an order has been made appointing a special guardian for the purpose of concurring in such case on their behalf, set forth such order in this place, thus, " And whereas by an order of the said Court, dated the day of , it was ordered [recite the mandcUory part of the order appointing the special guardiany (b) If an order for leaTe to set down the special case was obtained, an infant, married woman, or lunatic, being a party, set forth such order in this place thus : — "And, whereas, by an order of the said court, bearing date the day of , it -was ordered thatthe said plaintiff should be at Mberty to set down the said special case for hearing." INEOLMENT — OEDER ON ADMINISTEATION SUMMONS. 463 No. 404. FOEM OF DOCQUET OF InEOLMENT OF OeDEE. In suit by Administration Summons (a). Whereas heretofore, that is to say, on the day of , obtained a summons from the Eight Honorable the Master of the EoUs [or. His Honor the Vice-Chan- cellor , as the case may be,] at his chambers, a duplicate whereof was duly filed as of record in the High and Honorable Court of Chancery, on the day of , pursuant to the General Orders of the said Court in that case made and provided, and which said summons was intituled " In the matter of the estate of , late of , in the county of , deceased, against ," and was directed to the said as the executors of the last wUl and testament of the said [or, as the case may be] requiring them to attend and show cause why an order for the administration of the personal [or, real, or, real and personal, as the case may be] estate of the said , by the said Court should not be granted, as in and by the said duplicate summons, duly filed and remaining as of record in the said court, reference being thereunto had, will appear. And whereas the said was duly served with the said summons, and appeared thereto. And whereas by an order made by , on the day of , on the hearing of the said summons, and upon the application of, &c. [recite the whole of the order made on the hearing of the summons, a/nd ^proceed with the words " and which order," 8fc., and generally as in Form, No. 386, on page 453.]. (a) Form 404, with slight variationB, is equally applicable to any other ease where the proceedings have been originated in chambers by summons. 464 ineolment — foreclosure — further directions. Directions as to the Forms of Docquets of Inrolment. No. 405. Of Inrolment of Decree for Foreclosure. Eecite the pleadings, &c., as in the case of an order on further consideration, up to and inclusive of the filing of the chief clerk's certificate (see Form, No. 408, p. 466). Then proceed thus : — And whereas [recite the whole of the decree absolute for foreclosure, and proceed with the icords " and which order," 8fc., and general^/ as in Form, No. 386, on page 453]. No. 406. Of Inrolment of an Order on Further Directions. Recite the pleadings, &c., up to and inclusive of the decree made on the original hearing, using such of the forms as may be applicable to the case. Then proceed thus : — And whereas, in pursuance of the said recited decree, , Esquire, the Master to whom the said cause was referred, made his report, dated the day of , which said report was duly filed on the day of , and was duly confirmed by orders nisi and absolute, bear- ing date respectively the day of , and the day of . And whereas by an order of the said Court, made in the said cause, bearing date the day of , it was ordered \recite the mandato'ry part of the order for leave to set down the came on further directions]. And the said cause coming on accordingly on the day of [recite the whole of the order on further directions, and proceed with the words " and which order," 8fc., and generally as in Form, No. 386, on page 453]. INROLMENT FURTHER CONSIDEEATION — TWO SUITS. 405 No. 407. Of Inrolment of an Order on Further Consideration. Recite the pleadings, &c., up to and inclusive of the order made on the original hearing, using such of the forms as may he applicahle to the case. Then proceed thus : — And whereas, in pursuance of the said decree [or, order], and in pursuance of the directions given to him for that purpose, , Esquire, one of the chief clerks to His Honor the , the Judge to whose court the said cause was attached, made his certificate, bearing date the day of , which said certificate was signed and approved by the said Judge on the day of , and was duly filed on the day of . And whereas the said cause coming on on the day of , for the further consideration thereof adjourned by the decree, &c. \recite the whole of the order on further consideration, and proceed toith the words " and which order," <^c., and generally as in Form, No. 386, onp. 453]. No. 408. Of Inrolment of an Order or Decree, where a Bill and a Cross Bill, or two Suits, have been heard together, or consolidated after Decree, but before the Date of the Order to be Inrolled. Kecite the pleadings, &c., in the original or first cause, then the pleadings, &c., in the second cause, adopting such of the forms as may be applicable to each case. Then recite the decree made in the two suits, and proceed with the words " and which decree," &c., and generally as in Form, No. 386, on page 453. If the suits have been consolidated after decree made in one of them, first recite the pleadings and other proceedings taken separately in the cause first mentioned in the title of the order to be inrolled, then recite the pleadings and other proceedings taken separately in the cause secondly mentioned in the title of the order, next recite the order which may have been made in both suits, and if such order is the order to be inrolled, 466 INHOLIVEENT — PREVIOUS INEOLMENT — BEFORE 1852. proceed with the words " and which order," &c., and generally as in Form 386, on page 453. No. 409. Of Inrolmmt of an Order made after an Order or Decree already Inrolled in the same Came. Whereas by a certain decree heretofore signed and inrolled, bearing date the ■ ■ day of , in the year of our Lord , made upon the hearing of a certain cause depending in the High Court of Chancery, wherein was plaintiff, and were defendants, it was adjudged and decreed that, &c. \re0p Bill or Claim filed befoke 2nd Novembbb, 1852 by what practice governed, 319 ;new engrossment, when required, 319 fee payable on filing, 319 with()ut new engrossment, how amendments to be made, 319 fee payable, 319 rjiotice of, when and to whom to be given, 319 form of 319, 320 . order for, how to be served, 320 subsequent proceedings upon, as to appearance and answer to bUl, 320 .office copy of bUl, practice as to taking, 320 sm amendment of claim, new writ of summons to be served, 320 AMERICA, colonies in, where affidavits, (fee, may be sworn before British Ministers, 345 INDEX. 585 ANSWER To iNTEBROGATOKrBS FlLED BY A DeFBINDANT when enforceable, 40 replication not to be filed to, 73 To BrLL form of, 40 Formal Gommencements of Answers : — of answer of one defendant, 41 answer of two or more defendants, 41 answer to an amended bUl, 41 further answer, 42 further answer, and answer to amendments, 42 answer to secondly or thirdly amended bill, 42 interrogatoiies with concise statement pre- fixed, 42 of an infant or persons of unsound mind, by guardian, 42 an answer and disclaimer, 43 of a Quaker, 43 a supplemental answer, 43 an answer to two billB in the same cause, 43 a demurrer to part, and answer to the remainder of a bill, 43 an answer and examination to interrogatories settled by the judge or master, 44 to be divided in consecutively numbered paragraphs, 44 may contain additional material statements, 44 how to be engrossed, 44 as to erasures in, 44 how to be intituled, 44 correcting names of parties in title of, 44 in what case stamp for oath to be aflSxed, 44, 45 counsel's name to, 45 not required to answer and examination, 45 signature of the defendant to, 45 indorsement of name, &c. , of sohcitor on, 45 of a Quaker, how shown to be such, 45 foreigner, how taken and filed, 45 married woman, answering with or separate from her husband, 45 female defendant marrying after bill filed, but before answering, how intitided, 45, 46 an infant or person of unsound mind, by guardian ad litem, 46 a lunatic, by his committee, 46 an idiot, in prison for contempt in not answering, 46 signature of guardian to, 46 586 INDEX. ANSWER— contmued. To Buii/ — ooniiMued. order appointing guardian to be produced on filing answer, 47 filing -without oath or signature, 47 how order to file without oath, 619 FIERI YACIAS— continued. Fieri Facias de Bonis Ecclesiasticis — continued. solicitor's fees for preparing, 138 direction of, to archbishop, if bishop's see vacant, 138 returns to writs, of. See Return. sequestration after. See SEQUESTKATioif. FORECLOSURE, claim may be filed for, 93 form of claim for, 87 inrolment of decree for. See Inrolment. FOREIGNER, jurat and oath to affidavit or answer by. See Jurats and Oaths. declaration by. See Declakation. answer of, how taken and filed, 45 evidence of, how taken, 124 translated, 124 FOREIGN PARTS, list of places in, under the dominion of Her Majesty, 344-5 FORMA PAUPERIS, order to sue or defend in, necessary, 562 how obtainable, 562-3 to be left for entry at the Record and Writ Clerks' Office, 563 infant may obtain order to sue by next friend ' in, under what cir- cumstances, 562, also "Errata" page married woman may obtain order to sue in, and without next friend, 563 under what circumstances persons suing or defending, liable to re- imbursement of remitted fees, 563 office copies taken by person siting or defending ' in, how to be charged for, 488, 563 the Hke as to other copies, 499 entering appearance by party defending in, 322 FORMS [Refer under the title of the particular subject to which the form required relates.] FURTHER CONSIDERATION setting down cause for. See Setting down Cause. FURTHER DIRECTIONS setting down cause for. See Setting down Cause. GENERAL RETURN DATS to be inserted in writs of attachment. See Return. 630 INDEX. GUARDIAN {ad liiem) For Infant, &c. when to be appointed, 46 how to be appointed 46-7 signature of, to answers, 46 order appointing, to be produced on filing answer, 47 filing answer without' oath, &c., of, 47 to be appointed, where infant, > 2 Vols. CowFBB,— 14 to 18 G. III., Sto. Dublin . 1 Vol. 8 DonGLAS,— 19 to 25 G. III., ith edit., by Frere & ROSCOB 4 Vols. 4 14 1 10 N3. Vols. 3 & 4, wbicb were edited by Mr. Boscoe from the MSS. of Lord Glenbervie, and published many years alter. Vols. 1 & 2, can be had separately, priceZOs. ' Durnfobd & East, — 26 to 40 G. III. : 8 Voh. East,— 41 to 53 G. Ill 16 Vols. Maule & Selwtn, 53 to 58 G. III. 6 Vols. Barnbwali, & Alderson,— 58 G. III. to 1 & 2 6. IV ; : . . . 5 Vols. 8 12 1 5 Babnewall & Cresswell,— 3 to 10 G. IV. . 10 VoU. Babnewall & Abolphus,— 11 G. IV. to 4 W. IV. 5 VoU. 9 9 1 10 Adolphus & Ellis,— 4 W. IV. to 4 Vict. 12 VoU. 22 3 3 15 Adolpuus & Elms (New Series), — 4 to 12 & 13 Vict. ........ 15 VoU. 39 7 6 12 12 DowLiKG & Rtlanb,— 2 to 8 G. IV. . 9 Kofo. 16 18 6 18 LAW BOOKS PUBLISHED BT Pubiieation Now offered Price in Clf. REPORTS IN QUEEN'S BEKCa-c<«ainued. £ (. d. £ t. d. Nbtile & Manning, — 3 to 6 W. IV. . . .6 Volt. 12 2 1 15 Nevile & Pebrt,— 7 W. IV. to 1 Vict. ... 3 Tofe. 5 13 10 Perry & Datison,— 1 to 5 Vict. .... 4 Volt. 7 8 6 I 5 Gale & Davison,— 5 to 6 Vict 3 Vob. 6 6 1 Davison & Merivalb,— 6 to 8 Vict. ... 1 Vol. 2 2 10 BAII. COURT REPORTS- Dowlino,— 1 W. IV. to 4 Vict. 9 Vob. 19 10 3 5 DowLTNG (New Series),— 4 to 5 & 6 Vict. . . 2 VoU. 5 4 6 18 Dowlikg & Lowndes,— 6 to 12 & 13 Vict. . . 7 Vols. 15 6 3 10 Lowndes, Maxwell & Pollock, — 13 & 14 to 14 & 15 Vict 2 Vols. 4 7 1 5 REPORTS IN THE COURT OF COMMON PLEAS. Bridgman, Orlando,— Cliarles II., by Bannister 1 Vol. Blackstone, H.— 28 to 36 G. Ill, . . .2 Vols. 3 15 BosANftuBT & Puller,— 36 to 47 G. III. . . 5 Vols. 7 3 1 15 Taunton,— 48 to 59 G. Ill 8 Vols. 11 4 2 Broperip & Bingham,- 59 6. III. to 1 & 2 G. IV. 3 Vols. 4 4 Bingham,— 3 G. IV. to 4 W. IV 10 Vols. Bingham (New Cases),— 4 W. IV. to 3 Vict. . . 6 Vob. 11 ? 2 10 Manning & Granger, — 3 to 8 Vict. . . .7 Vols. 17 3 3 Manning, Granger & Scott (or Common Bench), 8 to 12 & 13 Vict 8 Vols. 19 7 6 4 10 REPORTS IN THE COURT OF EX- CHEQUER, PIf A SIDE. BuNBURT, — 12 Anne to 14 G. II. 8vo., Dublin . . I Vol. 8 4 6 Parker,— 30 Chas. II. to 6 G. III. Sto., Dublin . 1 Vol. Anstruther,- 32 to 37 G. Ill 3 Vob. M'Cleland, 4 & 5 G. IV 1 Vol. 1 15 6 10 6 1 13 10 6 YouNGE & Jervis,— 7to 11 G. IV. . . . 3 Vob. 5 3 6 1 11 6 Crompton & Jervis,- 11 G. IV. to 1 & 2 W. IV. . 2 Vob. 3 9 6 1 5 Cbompton & Mbeson,— 2 to 4 W. IV. . . .2 Vob. 4 2 6 1 10 Crompton, Mbeson & Boscoe,— 4 to 6 W. IV, . 2 Vob. 4 5 Mbeson & Welsbt,— 6 W. IV. to 10 Vict. : . 17 Vob. 36 6 12 12 ExcHEauBR Reports, The, (by Wblsbt, Hurl- STONE & Gordon) — 10 to 15 Vict. , . .6 Vob. 15 8 REPORTS IN THE COURT OF EX- CHEQUER, EQUITV SIDE. Wilson,— 57 G. III. tewed Part 1 6 1 N.B.— The only part pnblished. Daniell,— 57 to 59 G. III. , , . . . 1 Vol. YODNGE, 11 G. IV. to 1 W. IV 1 Vol. 1 18 10 YouNGB & CoLLYBR,— 4 W. IV. to 5 Vict. . . 4 Vols. 7 18 2 REPORTS AT NISI PRIUS. Peake,— 30 to 52 G. Ill 2 Vob. I 13 15 EspiNAssB,— 33 to 47 G. Ill 6 Vob. in 3 Campbell,— 48 to 56 6. III. . , . . . 4 Vols. 4 3 1 Starkie,— 57 G. III. to 3 G. IV. , . 2 Vob. If 3, PI. 1 N.B.— Vol. 3 was never completed. Ryan & Moody, 4 to 7 G. IV. . . . .1 Vol. I 6 6 7 6 Moody & Malkin,— 8 G. IV. to 1 W. IV. . .1 Vol. 1 12 6 7 6 Moody & Robinson,— 1 W. IV. to 7 & 8 Vict. . 2 Vob. 3 5 Carrington & Payne,— 4 G. IV. to 4 Vict. . . 9 Vob. 15 7 6 10 Carrington & Marshman, — 3 to 5 & 6 Vict. . 1 Vol. 1 U 12 Carrington & Kibwan, — 6 to 13 Vict. . . 2 Vob. 5 1 6 1 12 REPORTS BEFORE THE PRIW COUNCII.. Knapp,— 11 G. IV. to 6 & 7 W. IV. . . .3 Vob. 4 4 1 15 STETENS AKD KOETON. 19 REPOBTS IN THE ECCI.ESZASTICAIi Philumork,— 49 G. III. to 1 & 2 g! IV. . .3 VoU. Addams,— 2 to 7 G. IV 2 FoZ*. if 3, Pt. I N.B. — ^Vol. 3 was never completed. Hagqabd,— 8 6. IV. to 3 & 4 W. IV., 3 VoU. ^ 4, P*. 1 fr 2 N.B. — Vol. 4 was never completed. CuRTEis,— 5 W. IV. to 7 & 8 Vict 3 Voh. ROBSRTSON,— 7 to 13 & 14 Vict. . . Vol. 1 ^ 2, P*. 1 KoSK, — 50 to 5(i G. Ill 2 Vols Deacon & Chittt,— 2 to 5 W. IV. . . . 4 Vols Dkacon,— 5 W. IV. to 3 Vict 4 Vola Db Gex,— 8 to 11 & 12 Viot 1 Vol. BEPORTS OF BAII.TVAV & CANAI. CASES. NiCHOLL, Hark, Carrow, Oliver, Bevan & Le- ^•^"■^ 1 You. BEPORTS OF ELECTION CASES. Peckwell,— 43to47 G. III. 8to 2 Vols. CoRBBTT & Danibll,— 59 G. III. 8vo. ... 1 Vol. COCKBURN & ROWE,— 2 & 3 W. IV. 8vo. , . 1 Vol. Knafp & Ombler,— 4 & 5 W. IV. 8vo. . . . 1 Vol. Barron & Austin, — 5 & 6 Vict. 8to. . . .1 Vol. Barron & Arnold, — 6 to 9 Vict. 8vo. . . .1 Vol. REPORTS OP niAGISTRATES' CASES. DowLiNC & Rtland, — 2 to 8 G. IV. 8vo. . . 4 Vols. Manning 8s. Rtland, 8 G. IV. to 1 W. IV. 8vo. 2 Vols, if 3, Pt. 1. ir.B.— All putdished. Neviie & Manning, — 3 to fi W. IV. 8vo. . . 3 Vols. Nbvii-e & Pbrrt,— 7 W. IV. to 1 Vict. 8»o. . Pis. 1 Sf 2 N.B. — All the parts published. Carrow, Hamerton & Allbn (New Sessions Cases), — 7 & 8 to 14 & 15 Vict. 3 Vols. Sf 4, Pis. 1 to 4 N.B. — ^AIl the parts of Vol. 4 which are pabllshed. , „ „CROWrN CASES. If-B-BBOBlE,Esq.,ofLlncoln.sInn. CO.BX OF QUEER'S BE.OH. . • {^ 'iMs^^:^''i^^:^zl:^'"^- "''' Queen's Bench Bail Coubt . . Geobqe Fbabcis, Esq., of Gray's Inn. CouBT OF Common Pleas, includ- 1 ^ pj^„^^^ Esq., of Gray's Inn.and oTvoters Ac" " f "f"'™'.'™ j W. Mills, Es4.. o'f 'the In/er Temple. Coubt of ExoHEQnEB . j . . W. M. Best, Esq., of Gray's Inn. '' ^°c"uE*ra? !"*! ^""f '=™°^' ] A. WAW.ILOVE, D.C.L., of Doctors' Commons. Oases IN Barkbuptoy . . . . U. Gasman Jones, Esq., of Lincoln's Inn. Ohowh flASKH REBKRvun J Henby Macnamaba, Esq., of Lincoln's Inn, and OBOWN OASES KESEBTED . . • { Qeobob Fbanois, Esq., of Gray's Inn. 23 LAW BOOKS IN THE PRESS. Chitty on Bills of Exchange and Promissory ^otes. Tenth Edition. BY J. A. RUSSELL, Esq., Barrister-at-Law. The Jurisdiction and Practice of the Judicial Committee of the Privy Council. By EDMUND F. MOOEB. Esq. The Record and Writ Practice of the Court of Chan- cery. With nearly 500 Forms, and Practical Directions and Notes. By. T "W Bhaithwaite, of the Record and Writ Clerks' Office. Fisher's Annual Digest for 1857. (lu continuation of Harrison's Annual Digest ) A Selection of Leading Cases on Mercantile and Maritime Law. With Notes. By O. D. TtTDOE, Esq., Barrister-at-law. Udall's Practice of County Courts. The Practice and Proceedings in the County Courts, together with the Revision exercised over them in the Superior Courts by Appeal Prohibition, and Mandamus. By HENRY UDALL, Esq., Barrister- at-Law. Fourth Edition. A Treatise on Wrongs and their Remedies. By C. G. ADDISON, Esq. Author of "The Law of Contracts." Russell on Crimes and Misdemeanors. Fourth Edition. By C. S. GREAVES, Esq., Q. C. Chitty's Forms of Practical Proceedings in the Courts of Queen's Bench, Common Pleas, and Ex- chequer. Eighth Edition. A Summary of the Duties of a Justice of the Peace out of Sessions. By THOMAS JAMES ARNOLD, Esq., one of the Metropolitan Police Magistrates. . ' ' Roseoe's Digest of the Law of Evidence in the Trials of Actions at Msi Prius. The Ninth Edition. By EDWARD SMIRKE and SAMUEL PRENTICE, Esqs., Barristers -at-Law. 24 INDEX. Action at Law. Smith • • . . Arbitraton. fiJufiaeU • > ' . Bankrupt Law. Arohbold, byFlatber . BillB of Exchange. ChittT .... BUlldingAct. Wocurych .... BuTgesaes. Merrifield .... Chancery Practice. Blaxani—JEgtiitff Chamhs. Braithwaite • • Daniell .... Smith Tripp— jPbniM > • Charitable Tiudts. Finlaaon .... Civil Law. Bowyer .... Cumin . . ^ Commentaries. Bowyer . • * . Common Forms. Greenwood . . • Common Law Practice. Chitty*s Archbbld . Finlaaon'a C. L. F. Acts . Common Law Proeedure. Finlason .... Concise Forms in Conveycg. Greenwood . ■ . Constitution. Bowyer .... Contracts. Addison .... Smith .... Conveyancing. Burton .... Greenwood . . Frideaux .... Smith . ... Coroner. Jervis Costs. Coleman— CAoncerv Scott— Com. Ltxw . County Courts. < UdaU ; .... Criminal Law, Archbold .... Paley Roscoe .... Russell .... SiRests. Chitty's Equity . Harruon's Com. Law Fisher . . . ia» Election Caaes .... Election Law. Rogers .... Equity. Smith 8 Spence .... 13 Evidence Archbold— Otmfnal . 6 RoBcoe— CHminaZ . . 3 Roacoe, Nisi Prius . . 23 Starkie .... 9 Executora and Admlnistnitors. Williams .... 3 Fixtures. Amos 15 Forma. Chltty— Com. Law . . 4 Greenwood— Convey. . 3 Prideaux . . . • 1 Smith— iVutff. Bemov, . 8 Tripp— £OTrf«y . . . 1 Inclosure of Gomtnons. Cooke 5 Indexea— see "Digests," Insurance. Arnould— JlfoWne Joint Stock Companies. Wordsworth . Thring Jurisprudence. Smith Spence . . Jurist . . . Justice of Peace. 12 Bum, by Chitty Arnold Landlord and Tenant. Amoa— Fixtures . . 15 Woodfidl .... 7 Lawyer's Companion and Diary 11 Leases and Sales ofSettledEstates. Brickdale .... 11 Legacy Duty. Trevor .... 3 Lien. Cross 15 Marine Insurance— see JTUurance. Maritime Law. Tudor, Leading Cases . 23 Mercantile Law. Smith 15 Tudor, Leading Cases . 23 Merchant Shipping Acts. Dowdeswell . . .10 Metropolis Building Act. Woolrych .... 7 Metropolis Management Act, Smith e Mines—Aee Stannaries. Niai Prius. Roacoe .... 23 Nuisances Removal Act. Smith 8 Parish Law. Bum, by Chitty . .10 Steer 4 Peraonid Property. Smith S Pleading. . Archbold— CVimffltfl . 6 Practice of Courts. Braithwaite .. . .23 Chitty's Ardibold . . 4 Daniell .... 1 Fiiilaaon'sC.L. P.Acts. IL Moore, Privy CottncU . 23 Smith .... 10 Ddad, County Courts . 23 Precedents. Chitty— Common Law . 4 GxeexiviooA— Convey ancg, -8 Tripp— £gui^ • ■ 1 Principal and Agent. Petgrave . . > « 3 Privy Council. Moore .... 23 Probate Duty. Trevor . . . Promissory Notes. Chitty Public Law. Bowyer . . ^ Railways. Wordsworth . Real Property. Burton . . • Shelford . Smith. Record and Writ Practice. Braithwaite », Reports. Drewry . , • • -S Jurist, in all the'Cowrts . SSS. Reports at Reduced Prices 16-^£9 Reports, Current Series . . 19 Shipping. jDowtlcswell ... 10 Smithes Mercantile Law . 3^ Stamp Duties. TUsley . . . . 5, 6 Stannaries. Procedure .... 7 Statutes, Collection of, Chitty .... 12 Succession Duty. Trevor .... 3 Summary CoavictiOns. Paley 9 Treatises and Books of Prac- tice, atReducedPricesSO, 21 Trusts a!>d Trustees. Darling . . . .11 Finlason— CAoriCoAZe . 9 Headlam .... 10 Turnpike Acts. Bateman .... 7 Vendors and Forchasera. Dart ..... 6 Wrongs. Addison . . . . 2S 8 23 14 12 5 15 2 23 In M^al Svo,, price sEl 12«. cloth. PRECEDENTS IN GONVEYANCING DISSERTATIONS ON ITS U¥ AND PRACTICE. By rEEDEEICK PEIDEAUX, Of LiAiioln's Inn, Ksq., Barrister-at-Law. ®:&trii lEliitfon. Considerably enlarged and improved, both b v tbe elaboration and extension of the Dissertations and by the addition of upwards of one hundred Precedents. V. & R. STEVENS AND G. S. NORTON, 26, BELL TARD, LINCOLN'S INN. 18B8. J« rogdl 12«ta., pri