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FOEMS AND PRECEDENTS
, ■• OP
PEOCEEDINGIS
IN
THE HIGH COURT OF CHANCERY,
WITH
* J '
practical i^otes antr ©ijserbations ;
INCLUDING AS WELL THOSE FORMS WHICH AEE IN ORDINARY USE, AND
REQUIRED BY SOLICITORS IN THE CONDUCT OF A CAUSE, AS ALSO
PRECEDENTS OF PLEADINGS, FORMS OF PETITIONS, DECREES
AND ORDERS IN SUITS AND UNDER THE INFANTS'
SETTLEMENTS' AND SETTLED ESTATES' ACTS,
THE TRUSTEE, THE TRUSTEE RELIEF
AND OTHER ACTS ;
.REFERENCES TO THE THIRD EDITION OF DANIELL'S CHANCERY PRACTICE,
BY HEADLAM;
Airs Air AFFEXDIX,
CONTAINING THE REGULATIONS OF THE JUDGES OF THE
8th of august, 1867.
BY
RICHARD S. TRIPP, ESQ.,
BARRISTER AT LAW.
LONDON :
V. & R. STEVENS AND G. S. NORTON,
EatD ISooicsellers anir ^ulilieSetg,
26, BELL YARD, LINCOLN'S INN.
1858.
I^(i3^(^y
LONDON :
PKIMTED BY C. BOWORTH AKD SONS, BELL YARD
TEMPLE BAR.
PREFACE.
The present Work was undertaken at the suggestion of Mr.
Headlam, whose co-operation the Author has received in its pro-
gress. It was originally intended to be confined to a Collection of
Forms and Precedents, with references merely to that Gentleman's
last Edition of Daniell's Chancery Practice.
In deference, however, to the views of several members of the
Profession, Notes and Practical Observations have been intro-
duced, with the object of making the Work more useful, and ren-
dering it available also as an independent Work, to those who might
be disposed to consult it without having recourse to Mr. Headlam's
Book.
Some difEculty has been felt in exercising a discretion as to the
Forms to be introduced, so as to confine the publication within a
moderate compass, — a difficulty which will probably be appreciated
when it is observed, that not only Precedents of Pleadings, but
Forms adapted to the Practice of the Court of Chancery, under its
ordinary as well as extraordinary jurisdiction, including Forms of
Petitions and Orders under the Trustee Act, the Trustee Relief
Act and other Statutes, and of Proceedings in the Judges' Cham-
IV PREFACE.
bers, have been introduced, — it is hoped, however, that this dis-
cretion has been properly exercised by omitting all Forms of a
very special nature.
As to the Precedents under the Trustee Act, the Author has
availed himself of the kindness of Mr. P. W. Rogers, of the Regis-
trar's Office, by introducing Forms of Orders furnished by that
Gentleman, adapted to the Charitable Trusts' Act, and the several
sections of the Trustee Act and Trustee Extension Act (except
those applicable to lunatic trustees).
The Clerks of Records and Writs have taken the trouble to
peruse and correct such of the Forms of Affidavits as come within
their sphere, to whom, as well as to other officers of the Court of
Chancery, the Author expresses his obligations for the information
and assistance which he has received on various subjects connected
with the Practice of the Court,
In the Forms of Proceedings in the Judges' Chambers are
included, under their proper heads, those which have been issued to
the Profession in a Schedule to the Regulations of the Master of
the Rolls and Vice-Chancellors, dated the 8th of August, 1857, in
order to incorporate which in the present Work, its publication has
been delayed. The other Forms are those which, upon ordinary
occasions, are used in the Chambers of Vice-Chancellor Wood.
The Regulations will be found in an Appendix.
The Notes and Observations contain references to numerous
recent decisions, many of which have been reported subsequently
to the publication of the last Edition of Daniell's Chancery
Practice.
PREFACE. V
The Precedents and Forms have been numbered consecutively
throughout ; and the several Summonses in Judges' Chambers, and
the Forms under the recent Regulations of August 8th, 1857,
have in addition a separate distinctive number.
In order to render the Index as useful as possible, references
are made not only to the general titles but to the piarticular sub-
jects of the Precedents and Forms, so that the Practitioner may
without difficulty find the particular Form which he requires. The
Index also contains references to the subject-matter of the Notes.
In conclusion, it is hoped that, in endeavouring to make the
Work useful to the members of both branches of the Profession, it
will not be considered that either too much, or too little has been
done.
CONTENTS.
CHAPTER I.
PAGE
Forms of Titles and Commencements of Suits 1—6
CHAPTER II.
Pbecedents of Bills.
Preliminary Observations 7 — 9
Forms of Bills 9—22
Statements eind Prayers in Bills 23 — 31
Charges and Prayer in Bill of Discovery 31
Bill of Revivor 32
Supplemental Bill 34
Bill of Revivor and Supplement 35
Supplemental Statement 38
CHAPTER III.
Interrogatories 39—41
CHAPTER IV.
Demurrers.
Preliminary Observations 42
Title and Commencements of Demurrer 42
Conclusion 43
Forms of Demurrer and Demurrer and Answer 43 — 45
CHAPTER V.
Pleas.
Title and Commencement of Plea — Conclusion 46
Plea to Part and Answer to Residue of Bill 46
Plea for want of Parties 47
TABLE OF CORRIGENDA ET ADDENDA.
Page 2, note (e), line 5 from the top, strike out "but."
„ 3, line 1, add " s " to " infant."
„ 8, note (s), line 6 from the top of the second column, after " section" add
" of the Bankrupt Consolidation Act."
„ 4, last line but one, for " in," read " on."
„ 7, line 2, for " will,", read " to."
„ 9, line 1, after " top " introduce a comma.
„ 9, to form of " certificate," add " title."
„ 11, note (a:), line 3 from the bottom, «) As to suits by corporations, see Prac. seems the proper course would have been
vol. 1, pp.25 and 28. According to the for the plaintiffs not to set it down for
case of The Burgesses of Ruthin v. Adams, argument, but to reply to it, and then to
7 Simons, 345, it seems that if the plain- prove by the Scotch statutes that they
tiffs assume to sue in a corporate character were entitled to sue as a corporation, the
to which they are not entitled, the course English Courts not being bound to take
on the part of the defendant is to move to judicial notice of foreign corporations,
take the bill off the file, and, if it be open Bank of Scotland v. Ker, V. C. of Eng.
to doubt whether the plaintiffs are the Nov. 7th, 1836, MS.
corporate body they represent themselves (j) Prac. vol. 1, p. 30 ; 1 8j 2 Vict. c. 96 ;
to be, the Court will direct an issue to 5 & 6 Vict.c. 85 ; 7 & 8 Vict. c. 113. See
try the fact In the case of a bill filed by also 7 Geo. 4, o. 46, s. 9 ; Chapman v. Mil-
the Bank of Scotland to enforce a mort- van, 5 Exch. 61 ; 14 Jur. 251 ; Davidson
gage of real estate in England, the de- v. Bower, 5 Scott, N. R. 538.
COMMENCEMENTS OF SUITS. 5
22.
Secretary of an Assurance Company, authorized to sue and he sued
by Act of Parliament.'] Humbly complaining &o. H. D. of &c. the
secretary of a certain company called the Assurance Company &c.
23.
Creditor suing on behalf of himself and others.] A. B. of &c. on
behalf of himself and all (r) the other unsatisfied creditors of the above-
named who shall come in and contribute to the expenses of this
suit.
24.
Shareholder in a Company.] A. B. of &c. on behalf of himself and
all other the shareholders (except the defendants hereto) in a certain
company (s) called " ."
25.
Another Form.] S. B. and W. H. W. on behalf of themselves and
all other the shareholders and subscribers for shares (except the de-
fendants hereto) in a certain company called " " [who have
paid deposits in respect of their shares in the said company (i)].
26.
C. R. on behalf of himself and all other the persons (except the de-
fendants hereto) who at the time of the dissolution thereof were members
of a certain association (u) or club called " The Alliance Club," hereafter
(r) Mit£ PI. 192, 197, 5th edit. There terested must be made parties though
being no privity between the debtor to they were numerous j and that it was not
the estate o£ a testator and a creditor or sufficient for the plaintiff to sue on be-
legatee, such creditor or legatee cannot half of the other members; but the de-
sue the debtor unless there be collusion murrer to the bill as amended by the
between the personal representative and plaintiff on behalf of himself and the
the debtor, or some other special ground. other members against the committee,
Mitf. PI. 184, 185; Gedge V. Trail, 1 R. confining the relief sought, to have the
& M. 281 ; Bowsher v. Watldns, lb. 277 ; assets collected and applied towards the
Davies v. Dames, 2 Keene, 534 ; Law v. payment of the debts, without seeking to
Law, 2 Coll. Ch. Cas. 41 ; 9 Hare, 141 ; ascertain the rights and liabilities of the
Stainton V. The Carron Company, 18 Beav. partners or members as between them-
146; 18 Jur. 137; Saunders v. Druce, 3 selves, was overruled; and a decree was
Drew. 140. made at the hearing.
(s) 7 & 8 Vict. 110. If a member of a company has a com-
(t) The introduction of these words mon interest with the other members, he
must depend upon the circumstances of may sue on behalf of himself and all the
the case. See Beeching v. Lloyd, 3 Drew. other members. If he has not such com-
227 ; 1 Jur. N. S. 769. mon interest the other members must be
(a) See Richardson v. Hastings, reported represented upon the record by some per-
on the demurrers to the bill, 7 Beav. 301 son or persons as defendants. Btain v.
— 323; and on the hearing, 11 Beav. 17. .^gar, 2 Sim. 289 ; Hitchens v. Congreve,
In Richardson v. Hastings, on the argu- 4 Russ. 676 ; Macbride v. Lindsay, 9 Hare,
ment of the demurrer to the original bill, 585 ; 16 Jur. 535 ; Clay v. Rufford, 8 Hare,
which sought to wind up the affairs of 281; 14 Jur. 803; 19 L. J., Ch. 295;
the club, it was held that all persons in- Clements v. Bowes, 16 Jur. 96 ; 1 Drew.
COMMENCEMENTS OF SUITS.
more particularly mentioned, who are now living, and • the personal
representatives of such of them as are dead.
684 ; see also Harme v. Gooding, 3 De G.
& S. 407; 13 Jur. 400 (the case of a
building society).
As to a suit by several allottees of
shares suing on behalf of themselves and
other allottees or shareholders against
the committee or directors of a com-
pany, seeking to have theii deposits re-
turned, on the ground of misrepresen-
tations in the prospectus issued upon
the formation of the company, not being
open to the objection of misjoinder, see
Cridland v. Lord De Mauley, 1 De G.
459 J and on appeal, lb. 468 ; Clement
V. Bowes, 16 Jur. 96, V. C. K.; 1 Drew.
684; Beeching v. Lloyd, 1 Jur. N. S.
769 ; 24 L. J., Ch. 679 ; 3 Drew. 227.
The two last cases were decided after
the time appointed for the commence-
ment of the 15 & 16 Vict. o. 86, by the
49th section of which statute it is enacted,
that "no suit shall be dismissed by rea-
son only of the misjoinder of persons as
plaintiffs therein," &c. See also Puls-
ford V. Richards, 22 L. J. 559 ; 17 Jur.
865; Jorden v. Money, 5 H. L. Cases,
185.
As to suits respecting joint-stock com-
panies, and as to the frame of, and the
parties to, such suits, see Walworth v.
Holt, 4 My. & Cr. 619; Richardson v.
Larpent, 2 Y. & C. Ch. Cases, 507 ; Wil-
son V. Stanhope, 2 Coll. 629 ; Coleman v.
The East India Counties Railway Company,
10 Beav. 1 ; Moxley v. Alston, 1 Ph. 790 ; •
Edwards v. The Shrewsbury and Birming-
ham Railway Company, 2 De G. & Sm.
537 ; Kent v. Jackson, 14 Beav. 367 ; 2
De G., M. & G. 49 ; Bull v. Monieaux, 1
Kay & J. 98 ; 24 L. J. 99 ; 3 Eq. Rep.
190; Evans v. Coventry, 3 Drew. 75; 2
Jur. N. S. 557 ; 25 L. J., Ch. 489.
As to whether in the case of a bill
seeking to disturb a settlement of ac-
counts agreed to, by a majority of the
members of an association, the principle
of allowing one member to sue applies,
see Stupart v. Arrowsmith, 2 Jur. N. S.
153, V. C. S. ; see also Williams v. Sal-
mond, 2 Kay & J. 463 ; 2 Jur. N. S. 251.
( 7 )
CHAPTER II.
Precedents of Bills.
Preliminary Observations.
(As to form of Bill, see Prac. vol. 1, p. 207 ; IS & 16 Vict c. 86, s. 10 j and the General
Orders of August, 1852.)
A BILL should contain a concise, clear and positive statement of all the
facts and circumstances which are material to the plaintiff's case or will
support his title to relief, such statement being divided into paragraphs,
numbered consecutively, and each paragraph containing a separate and
distinct allegation.
The plaintiff can neither in a suit by bill, nor by claim, rely at the
hearing upon facts proved by evidence which are not alleged upon the
face of his bill or claim. See Gordon v. Gordon, 3 Sw. 400, 472 ;
SkarfT. Soulhy, 1 M. & G. 365 ; and as to claims, Groves v. Lane, 16
Jur. 855, V. C. K.; Whittington v. Corder, 16 Jur. 1034, V. C. T.
The fact relied upon must be distinctly averred : thus, the plaintiff
being described as a shareholder is not sufficient: — If the circumstance
of his being a shareholder is necessary to be proved, that fact should be
distinctly Sieged. Walhurn v. Ingilby, 1 M. & K. 61 ; Banks v.
Parker, 16 Sim. 176.
If the plaintiff's case is, that there has been fraudulent conduct on the
part of the defendant, a general allegation of fraud will not be sufficient.
It must be shown in what the fraud consists. Kelly v. Jtoc/ers, 1 Jur.
N. S. 514, V. C. W. So with respect to general charges of collusion
between two or more defendants; Bothomley v. Squires, 1 Jur. N". S.
694, V. C. K.
As to a general charge of defendant being a trustee ; Steedman v.
Marsh, 2 Jur. 391, V. C. W. ; 4 W. R. 476.
If an allegation will bear two meanings, the defendant is entitled to
put that construction on the statement in the bill which is most against
the plaintiff's interest. Vernon v. Vernon, 2 M. & Or. 145 ; Williams
V. Flight, 5 Beav. 41 ; Loader v. Clarke, 2 M. & Gor. 387; and see
Stansbury v. Arkwright, 6 Sim. 481 ; Hammond v. Messenger, 9 Sim.
327 ; and White v. Umale, 22 Beav. 72, as to the plaintiff relying on
allegations stated to be made by the defendant.
It should be borne in mind, that although by the 49th section of the
15 & 16 Vict. c. 80, it is enacted, " that no suit shall be dismissed by
8 PRECEDENTS OF BILLS.
reason only of the misjoinder of persons as plaintiffs therein," the equity
draughtsman must exercise his discretion as to the class ot cases witn
which the Court will deal favorably, under the power granted to it
by that section. Moreover, it is considered that the statute only applies
to the case of a misjoinder of plaintiffs, not to a misjomder ot subjects
where there is a sole plaintiff; and if the bill is multifarious, the objection
is still open to the defendant by demurrer.
As to the distinction between misjoinder and multifariousness, see Prac.
vol. 1, p. 232; Campbells. Mackay,\M..kC\:m^,Q\B,; Wardy.The
Duke of Northumberland, 2 Ans. 469; Harrisons. Sogg, 2 Ves. jun.
323.
As to multifariousness, see Salvidge v. Hyde, 5 Mad. 138 ; Jac. 151 ;
and Lord Cottenham's judgment in The Attorney-General v. Cradoch,
3 M. & Cr. 85, 93. See also Attorney-General v. Corporation of Poole,
4 M. & Cr. 17; Bump v. Greenhill,'20 Beav. 512, R.; 1 Jur. N. 8.
123; Thomas yr. Rees, 1 Jur. N. 8. 197, R. ; 3Iayor of Southmoltonv.
The Attorney- General, 5 H. L. Cas. 1 ; 18 Jur. 435. _
As to Parties.] The general rule was, indeed is, subject to the altera-
tions which have been made by general orders of Court and statutory
enactments, that all such persons must be before the Court, either as
plaintiffs or defendants, as will enable the Court to do complete justice
and determine the rights of all persons interested in the subject-matter
of the suit.
The new regulations as to parties will be found in the 42nd section of
the 15 & 16 Vict. c. 86.
It is to be observed, too, that this rule gives the Court a discretion,
wherefore, in Tuder v. Morris, 1 Sm. & G. 503; 22 L. J., Ch. 1051,
Vice-Chancellor Stuart required that the cestuis que trust of an equity
of redemption, in the case of a bill to foreclose a mortgage, should be
made parties, or that it should be shown by affidavit that they did not
object to the proposed decree. See also Cropper v. Mellersh, 1 Jur.
N. S. 289; 24 L. J., Ch. 430; Reed v. Prest, 1 K. & J. 183 ; Jesse v.
Bennett, 2 Jur. N. S. 1125; Peb-ce v. Brady, 2 Jur. N. S. 772.
Where no Personal Representative.] As to the Court determining
to proceed in the absence of a personal representative, or to appoint some
person to represent the estate of a deceased person interested, see section
44 of 15 & 16 Vict. c. 86. It is a matter of discretion, according to the
circumstances of each case, whether the Court should interfere. See
Tarratt v. Lloyd, 2 Jur. 371 , V. C. W. ; Byam v. Sutton, 19 Beav. 646.
An executor de son tort does not represent the estate of the testator.
Ashmall V. Wood, 19 Jur. 1130, V. C. S. ; Davis v. Chanter, 2 Phil.
545.
As to prayer for relief, see Prac. vol. 1, p. 226 — 264; Hiern v. Mill,
13 Ves. 114; Kerrick v. Saffery, 7 Sim. 317; Hanbury v. Litchfield,
2 M. & K. 634 ; Hill v. The Great Northern Railway Company, 5 De
G., M. &G. 66; 18 Jur. 685.
As to printing and filing bills, see Prac. vol. 1, pp. 208 and 274, and
Orders of August, 1852.
Every proceeding filed in a cause must bear the distinctive mark.
PRECEDENTS OF BILLS. 9
When a bill is filed, the record and writ clerk writes at the top the
year, initial letter of the plaintiff's name and number of the cause. This
forms an index to the proceedings (e.^f.), — 1857. N. No. 55.
By a General Order of the 30th of January, 1857, it is provided, that
thei'e shall be two scales of fees and costs ; one, the lower, where the
estate, fund or subject-matter of the suit is under the value of 1,000Z. ; the
other (higher) scale, where such estate, fund or subject-matter is of the
value of, or exceeds, 1,000Z.
In order thafc the plaintiff may be entitled to the benefit of this Order,
in respect of any proceedings for which he claims to pay the fees, accord-
ing to the lower scale, he must sign a certificate, and copy or duplicate, in
the form hereinafter set forth. The duplicate is lodged with and filed
by the record and writ clerk to whose division or department the cause
is attached. The original is sealed with the seal of the Court and kept
by the solicitor. It must be produced in all proceedings where payment
is made according to the lower scale of fees, and it should bear the dis-
tinctive mark.
27. Form of Certificate.
(To be written on foolscap.)
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.
Solicitor for
28. Form of Bill in Foreclosure Suit, as given in Schedule (B.) to
the Orders of 7th August, 1852.
In Chancery.
John Lee Plaintiff,
James Styles "1
and > ... Defendants,
Henry Jones J
Bill of Complaint.
To the Right Honourable Robert Monsey, Baron Cranworth, of
Cranworth, in the county of Norfolk, Lord High Chancellor of
Great Britain,
Humbly complaining, sheweth unto his Lordship, J. L. of &c., the above-
named plaintiff, as follows : —
1. The defendant J. S., being seised in fee simple of a farm called
Blackacre, in the parish of A. in the county of B., with the appur-
tenances, did, by an indenture dated &c., and made between the defendant
J. S. of the one part, and the plaintiff of the other part, grant and convey
10 PRECEDENTS OF BILLS.
the said farm, with the appurtenances, unto and to the use of the plain-
tiff his heirs and assigns, subject to a proviso for redemption thereof in
case the defendant J. S., his heirs, executors, administrators or assigns,
should on the first of May, one thousand eight hundred and fifty-one,
pay to the plaintiflF, 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 H. J. claims to have some charge upon the farm
and premises comprised in the said indenture of &c., which charge is
subsequent to the plaintiff's said mortgage.
4. The plaintiff has frequently applied to the defendants J. S. and
H. J., 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 J. 8. and H. J. pretend that there are some other
mortgages, charges or incumbrances affecting the premises, but they
refuse to discover the particulars thereof.-
6. There are divers valuable oak, elm and other timber and timber-
like trees growing and standing on the farm and lands comprised in the
indenture of mortgage of the first 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 J. S., who is in possession of the said farm, has
marked for felling a large quantity of the said oak and elm trees and
other timber, and he has by hand bills, published on the second De-
cember instant, announced the same for sale, and he threatens and intends
forthwith to cut down and dispose of a considerable quantity of the said
trees and timber on the said farm.
Prayer.
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 J. 8. and H. J. 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 defendants J. 8.
and H. J., and all persons claiming under them, may be abso-
PRECEDENTS OF BILLS. 11
lutely foreclosed of all right and equity of redemption in or to
the said mortgaged premises.
3. That the defendant J. S, 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 in-
denture of mortgage, or any part thereof.
4. That the plaintiflf may have such further or other relief as the
nature of the case may require (x).
Names of defendants.
The defendants to this bill of complaint are,
J. 8.
H.J.
{Name of counsel.)
Note.— This bill is filed by Messrs. A. B. and C. D., of Lincoln's
Inn, in the county of Middlesex, solicitors to the aboTe-named plaintiff.
29. Indorsement on Bill.
In Chancery.
Master of the Rolls.
[or Lord Chancellor,
Vice-Chancellor .]
Lee V. Styles and Jones [and others].
Bill of Complaint.
Victoria R.
To the within-named defendants greeting :
We command you and every of you, that within eight («/) days after
service hereof on you, exclusive of the day of such survice, 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 and that you observe
(ar) As to ordering sale of mortgaged Green, I Coll. Ch. Cases, 555 ; Paynter v.
estate, see 15 & 16 Vict. c. 86, s. 48 ; Carew, I Kay, App. xxxvi ; 23 L. J. 596.
Bellamy v. Cockle, 18 Jur. 465, V. C. W. (y) This is the time limited for the
No jurisdiction to order sale upon in- appearance of a defendant, where he is
terlocutory application. Wayn v. Lewis, within the jurisdiction of the Court; where
1 Drew. 487. ^^ is served under an order obtained for
As to ordering sale after decree. Laa- that purpose at a place out of the juris-
lett V. Cliffe, 2 Sm. & G. 278. diction of the Court, the number of days
As to staying further prosecutions of limited by the order must be inserted,
foreclosure or redemption suit, see Janes which may be done in writing. Chatfield
V. Tinney, 1 Kay, App. xivj Smith v. v. BercAfoWi, MSS. V. C. T.
12 PHECEDENTS OF BILLS.
what our said Court shall direct. Witness ourself at Westminster, the
day of January, in the year of our reign.
Note.— If you fail to comply with the above directions you will be
liable to be arrested and imprisoned.
Appearances are to be entered at the Record and Writ Clerk's Office,
Chancery Lane, London.
A. B. and C. D.,
{Place of Address),
Plaintiff's Solicitors («).
30. Bill for an Account.
[Title, ^c.J
1. The plaintiff, in the month of in the year entered into an
arrangement with and the above-named defendants, that
they the said defendants should from time to time, as the brokers of the
plaintiff, purchase on his behalf certain foreign stock or securities then
commonly called or known by the names &c., the price or purchase-
money of which the said defendants were to advance, but the plaintiff
engaged on each transaction to deposit with the said defendants certain
securities, that is to say &c.
[The hill then proceeds to state that purchases had been made, monies
paid and advanced on both sides, and securities given by the plaintiff to
the .defendants, and that the defendants had sold certain Spanish de-
bentures and scrip of the plaintiff at a lower price than they ought to
have done, without the plaintiff's consent.]
3. The accounts in respect of the before-mentioned transactions and deal-
ings are still open and unsettled ; nevertheless, the defendants have com-
menced and are prosecuting an action at law against the plaintiff for the
recovery of the sum of £ which they allege is the balance or sum
of money coming to them in respect of the said transactions.
4. The plaintiff, however, charges, that if the accounts between the
plaintiff and defendants were properly taken, a considerable balance
would be coming from the defendants to the plaintiff.
5. The said accounts cannot be properly taken except in a Court of
Equity.
The plaintiff prays as follows : —
1. That the defendants may make a full and true discovery and dis-
closure of and concerning all and singular the transactions and
matters aforesaid, and that an account may be taken by and
(«) The solicitor's name and address must be indorsed. 17 Order, 1842.
PRECEDENTS OF BILLS. 13
under the direction and decree of this honourable Court of all
dealings and transactions between the plaintiff and the de-
fendants.
2. That in taking such account the defendants may be charged with
the amount of dividends or coupons which were due on the said
Spanish debentures at the time of the aforesaid alleged sale
thereof by the said defendants, and also with such sums of
money as would have been produced by the sale of such de-
bentures, if the same had been sold at the price or rate of 601.
for each 100^. of the said stock.
3. That in taking such account the defendants may not be allowed
to charge the, plaintiff with any sums of money which shall
appear to have been paid or applied by them in the purchase
of stocks or securities which were never actually transferred or
delivered to the said defendants.
4. That the defendants may be charged with all benefit and advantage
obtained by them in the said transactions of buying and selling,
for and on account of the plaintiff, beyond the amount of the
usual and regular commission or brokerage.
5. That the balance which shall be found due upon taking such ac-
count may be paid by the defendants to the plaintiff, the plaintiff
being ready and hereby submitting to pay to them any balance
which shall be found due from him to the said defendants on
the aforesaid accounts (a).
6. That in the meantime the said defendants may be restrained by
the order and injunction of this honourable Court from further
proceeding in the said action at law commenced by them against
the plaintiff as aforesaid, and from commencing or prosecuting
any other action or proceedings at law against the plaintiff in
respect of or concerning the matters aforesaid or any of them [b],
(a) Prac. vol. l,p. 269. Although usual, L.J. 657; 18 Jur. 763; 18 Beav. 578,
it seems, according to Clarke v. Tipping, M. R.
4 Beav. 588, not to be necessary for the And in Phillips v. Phillips, 9 Hare,
plaintiff to submit to account. But see 471, a demurrer to a bill for an account
Inman v. Wearing, 3 De Gex & Sm. 731 ; was allowed, inasmuch as it did not ap-
see also Knehell v. White, 2 Y. & C, pear that the account between the plain-
Exch. IS. tiff and defendant was mutual, or that the
(5) A general allegation, that the ac- payments forming one side of the account
counts are of an intricate nature, is in- were other than matters of set-off as
sufficient to entitle the plaintiff to main- against the receipts on the other side, and
tain a bill for an account, but it must be notwithstanding a statement in the bill
supported by specific statements of facts that the defendant had in a particular
showing the intricate or complex nature transaction acted as the agent of the
of the accounts. Padwick v. Hurst, 23 plaintiff in receiving monies on his ac-
14 PRECEDENTS OF BILLS.
31. Bill hy Creditor against Devisees in Trust and Executors of
Testator.
In Chancery.
Lord Chancellor.
Vice-Chancellor
Between J. 8. (on behalf of himself and all other
the unsatisfied creditors of W. W. late
&c., who shall come in and contribute to
the expenses of this suit) Plaintiff,
and
J. A., E. B. (c), and W. B. {d) . . Defendants.
Bill'of Complaint.
To&c.
Humbly complaining, sheweth unto his lordship J. S. of &c. the
above-named plaintiff, on behalf, &c.
Testator indebted to Plaintiff.] 1. That the said W. W. deceased
was on &c. indebted to the plaintiff in the sum of two hundred and
eighty pounds, upon the balance of accounts then settled by and between
the plaintiff and the said W. W. deceased.
2. The said W. W. deceased, by his promissory note dated &c., two
months after date, promised to pay the plaintiff the sum of two hundred
and eighty pounds.
3. The said last-mentioned promissory note was given to secure the
amount due to the plaintiff as mentioned in the first paragraph of this
bill.
Debt still owing to Plaintiff.] 4. The said sum of £ &c. re-
mained justly due and payable to the plaintiff from the said W. W.
deceased, at the time of his decease.
count. See also Foley v. Hill, 1 Pli. 398 ; subscriptions to be awarded to the winner
2 H. L. C. 28; North Eastern Railway of any lawful game; and as to this enact-
Company v. Martin, 2 Ph. 758 ; Flicker v. ment applying to transactions for the ac-
Taylor, 3 Drew. 183. count in the English funds, see Knight
As to a bill for an account by one te- v. Fitch, 15 C. B. 566 ; 1 Jur. 526 ; 24
nant in common against another, see L. J., C. B. 122.
Leake v. Cordeaux, L. J. 3 ; 4 W. Rep. As to the principles on which the
806; M'Mahon V. Burchell, 2 Ph. 127- Court deals with a settled account, by
The Stock Jobbing Act does not ex- either directing the account to be opened
tend to foreign stocks or securities. Wells or giving leave to surcheirge and falsify,
V. Porter, 2 Bing. N. C. 722 ; Oakley v. see Coleman v. Mellersh, 2 M. & Gor. 309.
Rigby, lb. 732. Nor does it apply to (c) These were executors and devisees
shares in railway or joint-stock com- in trust of real estate for sale.
panics. Williams v. Tyre, 18 Beav. 366 ; (d) W. B. was the" cestui que trust, and
18 Jur. 442 ; 23 L. J. 860. See, how- held, by V. C. Kindersley, to be an unne-
ever, 8 & 9 Vict. c. 109, o. 18, by which cessary party under the provisions of the
all contracts by way of gaming or wager- 15 8i 16 Vict. c. 86. Smith v. Andrews,
ing are declared to be void, except as to 4 W. R. 353.
PRECEDENTS OF BILLS. 15
Will of Testator.] 5. The said W. W. deceased made his will
dated &c. (and which was duly executed and attested), and the said
testator thereby devised all his real estate and personal estate to the de-
fendants J. A. and E. B., their heirs, executors, administrators and
assigns, upon trust to sell and collect and get in the same.
[The trusts of the money arising from such sale being declared for
the benefit of the defendant W. B., if he should die before
twenty-five years without leaving issue.]
Death of Testator.'] 6. The testator W. W. died in &c., without
having altered or revoked his said will, leaving the several persons
named in his said will him surviving.
Proof of Will.] 7. The said will of the testator was duly proved
&c. by the defendants J. A. and E. B., who thereby became and now
are his sole legal personal representatives.
8. The testator was, at the time of his death, indebted to several per-
sons other than the plaintiff.
9. The testator was, at the time of his death, possessed or entitled of
or to personal estate of considerable value.
10. The testator also died seised or entitled of or to divers lands, mes-
suages and other real estate, situate in the county of Gloucester, and
elsewhere in England.
Executors have possessed themselves of Testator's Estate.] 11. The
defendants J.' A. and E. B. have, since the death of the said testator,
possessed themselves of the whole of the personal estate of the said
testator, and, as the devisees in trust or trustees of his will, they entered
into and are now in the possession or receipt of the rents and profits of
his real estate, and they have received a large sum of money in respect
of the real and personal estate of the testator.
Applications.] 12. The plaintiff has, by himself and his solicitor,
made divers applications to the defendants J. A. and E. B., and re-
quested them to pay what is due to him for principal and interest in
respect of his said claim, but they have refused so to do.
13. The said last-named defendants, however, allege that the personal
estate of the said testator is insufficient to pay his debts, whereas the
plaintiff insists, that if such allegation be true, yet that the personal
estate of the testator, together with his real estate, is more than sufficient
for payment of all his debts and funeral and testamentary expenses.
14. The said defendants also allege, that the real estate of the testator
is subject to certain mortgages or incumbrances, and that they have been
unable to sell the said real estate or any part thereof.
15. The defendant W. B. has attained the age of twenty-five years.
16 PRECEDENTS. OF BILLS.'
16. The defendant W. B. claims to be interested in the matters in
question in this suit, and insists that he is a necessary party thereto (e).
Prayer.
The plaintiff prays as follows :— •
An Account of Plaintiff's Debt.] 1. That an account may be
taken of what is due to the plaintiff in respect of his said debt
so due and owing to him from the said testator W. W. as
aforesaid, and of all other debts which were owing by the
testator at the time of his death, and which still remain unpaid.
2. That the trusts of the said testator's will may be carried into
execution by and under the direction and decree of this Honour-
able Court.
Account of Personal Estate.] 3. That an account may be taken of
the personal estate and effects of the testator received by the
said defendants J. W. and E. B., or either of them, or by any
other person or persons by their or either of their order, or for
their or either of their use, and that the said estate may be
applied in payment of the testator's debts and funeral expenses,
and that the following further accounts and inquiries may be
taken and made (that is to say).
Account of Ileal Estate.] 4. An inquiry of or to what real estate
the testator was seised or entitled at the respective times of the
date of his will and of his death.
5. An inquiry whether any and what incumbrances affect the said
testator's real estaite.
6. An account of the rents and profits of the said testator's real
estate received by the defendants J. A. and E. B., or either of
them, or by any person by their or either of their order, or for
their or either of their use.
7. That the real estate of the said testator, or a sufficient part
thereof, may be sold, and that the rents and produce thereof may
be applied in payment of the testator's debts.
That Defendants may be restrained from receiving the Assets.]
8. That the defendants J. A. and E. B. may, if necessary, be
restrained by the injunction of this Honourable Court from
retaining, receiving or collecting any of the monies, debts or
other outstanding personal estate of the testator, and from re-
(e) The allegations in this bill, except the decree does not go further than direct
those which relate to the debt of the payment of the testator's debts. See
plaintiff, can be adapted to the case of a Seton on Decrees, p. 44.
legatee. In an ordinary creditor's suit,
PKECEDENTS OF BILLS. 17
ceiving the rents and profits of the real estate of the testator,
or any part thereof, and that some proper person may be ap-
pointed to receive all the outstanding personal estate and
effects of the testator, and to collect and get in the debts owing
to him (f).
32. Sill by some of the Next of Kin of an Intestate for Payment of
their Shares of the Estate,
1. A. B. late of &c. deceased was at the time of his death possessed
and entitled of and to considerable personal estate.
2. The said A. B. died on the day of [a widower and]
intestate, leaving the plErintiffs and and his children and
sole next of kin him surviving (jf).
3. On the day of the defendant procured letters of ad-
ministration to the goods, chattels and credits of the said A. B. to be
granted to him by the Prerogative Court of the Archbishop of Canter-
bury [or by the Consistorial Court of the Bishop of , being
the proper Ecclesiastical Court for that purpose], and the said defendant
thereby became and now is the sole legal personal representative of the
said
4. The defendant as such administrator as aforesaid has taken pos-
session of all the moveable chattels of the said A. B., and has received
certain sums of money in respect of debts which were owing to the said
A. B. at the time of his decease.
5. The assets of the said A. B., which have- come to the hands of the
defendant were and are much more than sufficient for payment of all the
debts and funeral expenses of the said A. B., and he has paid or ought
to have paid the same.
6. The defendant has in fact in his hands a large (h) surplus or residue
in respect of the intestate's personal estate, which is divisible and ought
to be divided amongst the plaintiffs and the said and as his
sole next of kin.
7. The plaintiffs have applied to the defendant to furnish them with
an account of the personal estate of the intestate and of the appheation
thereof, and to divide the residue thereof amongst the plaintiffs and the
said and , but he has refused so to do.
(/) A voluntary covenant for payment Ad. & E. 798.
of a sum of money is a sufficient debt to (§■) See 1st rule of 42nd sect. 15 & 16
support a creditor's suit. Watson v. Par- Vict. c. 86. ,
ker, 6 Beav. 283. See also Lomas v. (A) Stephens v. Frost, 2 Y. & C, Exch.
Wright, 2 My. 8s K. 769 ; Clough v. Lam- 297.
bert, 10 Sim. 174 j Tvfnell v. Constable, 7
18 PHECEDENTS OF BILLS.
Prayer.
The plaintiffs pray as follows : —
1. That an account may be taken of the personal estate of the intes-
tate come to the hands of the defendant or of any person or per-
sons by his order or for his use.
2. That an account may be taken of the debts and funeral expenses
of the intestate.
3. That the clear residue of the personal estate of the intestate may
be ascertained, and that one equal part of such residuary
estate may be decreed to be paid to each of the plaintiffs, and
that another equal part thereof may be decreed to be
paid to the defendant and to each of them the said and
4. [Prayer for general relief.']
33. BiU hy a Feme Covert and her Children for a Settlement, against
the Assignee of her Husband, of her Share in Personal Property
derived under a Will.
In Chancery.
Lord Chancellor.
Vice-Chancellor
\TitU.'\
Humbly complaining, show unto his Lordship A. M. wife of
the defendant C. M. by of her next friend, and D. E. and
F. G. infants under the age of twenty-one years, by the said
their next friend.
\The till states a case, showing that A. M. has become entitled to a
share in the residuary estate of the testator, that C. M. her husband
has become bankrupt and the defendants and are his
assignees (i).]
No settlement or other provision for the due support and maintenance
of the plaintiff A. M. was made on the occasion of her said marriage
with the defendant C. M., or has at any time since been made.
The plaintiff A. M. is therefore advised and submits, on behalf of her-
self and the other plaintiffs her children, that they are entitled to have a
proper settlement of part of the aforesaid sum of money which is now
held by the defendant [the executor of the testator] as the part and
share of the plaintiff A. M. in the residuary estate of the said testator.
The plaintiffs have accordingly frequently applied to the said last-named
(i) In Retherham v. Batts, 2 Sm. & G. was entitled to his costs, but not his as-
App. viii. it was held, that the husband signees.
PRECEDENTS OF BILLS. 19
defendant, and also to th& said and [the assignees], and have
requested that they would consent and agree that a proper settlement
should be made of the said sum, and in particular the plaintiffs have re-
quested the said [the executor] not to pay over the whole share of
the said A. M. to the said last-named defendants, but to retain the same
until such settlement or provision be made thereout as aforesaid, but they
refuse to comply with such requests.
Prayer.
The plaintiffs pray &c.
1. That it may be declared that the plaintiff A. M. is entitled, for
the benefit of herself and the other plaintiffs her children, to
have a settlement made upon them and her other issue, if any,
by the said C. M., out of the part or share to which the plaintiff
A. M. is entitled in the residuary estate of the said testator now
remaining in the hands of the said [the executor],
2. That proper directions may be given for the preparation and exe-
cution of such settlement.
3. That in the meantime the said defendant [the executor]
may be restrained by the order and injunction of this Ho-
nourable Court from paying over or transferring to the de-
fendants and [the assignees], or either of them,
the said share of the plaintiff A. M. in the said residuary
estate and effects or any part thereof (A),
4. [For further relief.']
(k) Equity for a Settlement. Purchaser from assignee of husband an
1. Principle on which the wife's equity insolvent, Francis v. Brooking, 19 Beav.
for a settlement is founded.— The wife's 347 ; Scott v. Spaskett, 3 M. & Gor. 599 ;
equity for a settlement does not depend 16 jur. 157; Gent v. Harris, 10 Hare,
on any right of property in her, but rests 383. Divorce a mensd et thoro obtained
on the control which courts of equity ex- by wife, Barrow v^arrou), 18 Beav. and
ercise over property falling under their 24 L. J., Ch. 267 ; iLords Justices on ap-
dominion, and it is an obligation which peal, In re Lewin's Trust, 20 Beav. 378.
the Court fastens upon the property, but Where the fund under 200i. and the
not upon the right to receive. Osborn v. husband had become bankrupt. In re
Morgan, 9 Hare, 432; 16 Jur. 52; 21 L. J., Cutler, 14 Beav. 220; 15 Jur. 911; 20
Ch. 218. See also Prac. vol. 1, p. 98. L. J. 504.
2. As to the property to which this Where a part only of the fund has been
right extends, see Barrow v. Barrow, 18 settled. Ex parte Pugh, 1 Drew. 232;
Beav. and S. C. on appeal, 24 L. J., Ch. 16 Jur. 652 ; yiubrey v. Brown, 25 L. J.,
267. ^'^ Ch. 446 ; 4 W. Rep. 446, V. C. W.
3. When it attaches, see Prac. vol. 1, 5. Terms or provisions of settlement.—
p. 103 ; Lloud v. Mason, 5 Hare, 149 ; In settling a wife's property under an
Baker v. Bayldon, 8 Hare, 210. order of the Court giving effect to her
4. As to amount or proportion of fund equity to a settlement, there is no esta-
te be settled, see Prac. vol. 1, p. 100. Wished rule entitling her to have the pro-
For instances where the Court has given perty limited, in the events of failure of
the whole fund:— Bankruptcy of husband, issue of the marriage and of her dying in
Be Wilson, 1 Jur. N. S. 569, V. C. S. her husband's lifetime, upon such trusts
C2
20 PRECEDENTS OF BILLS.
Bill of Interpleader.
Preliminary Observations.] Where two or more persons claim the
same thing by different or separate interests, and another person, not
knowing to which of the claimants he ought of right to render a debt or
duty, or to deliver property in his custody, fears he may be hurt by some
of them, he may exhibit a bill of interpleader against them, and pray that
the claimants may be restrained from proceeding till the right is deter-
mined.
The bill must show that each of the defendants whom it seeks to com-
pel to interplead claims a right, or they may both demur ; and so, if the
plaintiff shows no right to compel the defendants to interplead, whatever
rights they may claim, each defendant may demur. Mitf. PL pp. 58,
164, 165, 166.
If, however, the double claim has been occasioned by the act or con-
duct of the party seeking interpleader, he cannot have relief from the
Court. Crwmshay v. Thornton, 2 M. & Cr. 1 ; Desborough v. Harris,
L. C, 5 De G., M. & G. 439 ; 1 Jur. N. S. 986.
An affidavit must be made by the plaintiff, to be annexed to the bill,
that he does not collude with either of the defendants. The affidavit
cannot be regularly made by the plaintiff's solicitor. Wood v. I/yne, 4
De G. & Sm. 16 ; and see the recent case of Lardbie v. Brown, 5 W.
Rep. 538, L. C. and L. Js.
It not being incumbent upon, or indeed proper, for the plaintiff to do
so, it is the duty of the interpleading defendants to state their respective
cases upon their answers, and they may also raise an objection to the
suit on the ground, either that the case is not one proper for an inter-
pleader bill, or that the plaintiff is acting in collusion with one of the de-
fendants. Statham v. Sail, 1 T. & R. 30; Toulmin v. Reed, 14 Beav.
499; 21 L.J. 391.
As to the principle upon which the Court acts in interfering at the in-
stance of a plaintiff in such a suit, see the following cases: — Glyn v.
Duesbury, 11 Sim. 139 ; Crawshay v. Thornton, 2 M. & Cr. 1 ; Sttart
V. Welch, 4 M. & Cr. 305; Jem v. Wood, 1 Cr. & Ph. 185; East and
West India Bockfiompany v. Littledale, 7 Hare, 57 ; Bruce t. Elmin,
9 Hare, 294; Farebrother v. Bedle, 3 De G. & Sm. 637; 14 Jur. 215;
Samilton v. Marks, 5 De G. & Sm. 638, V. C. P. ; Biplock v. Sam-
mond, 2 Sm. & G. 141 ; 23 L. J. 550; Jones v. Thomas, 2 Sm. & G.
186; 18 Jur. 460; Besborough v. Harris (L. C, overruling Fenn v.
Edmonds), 5 Hare, 314 ; Myers v. United Guarantee and Life Assur-
ance Company, 3 Eq. Rep. 579, and Watts v. Hammond, 3 Eq. Rep.
641, L. Js. See also the following cases at law upon the statute 1 &
2 Will. 4, c. 58 : —James v. Prichard, 7 Mee. & W. 216 ; Staney v.
Sidney, 14 Mee. & W. 801 ; Turner v. Mayor, ^c. of Kendal, 13
Mee. & W. 171 ; Gadsden v. Barrow, 9 Exch. R. 514.
as she shall appoint, and subject thereto cuinstances, the limitation in the events
upon trusts excluding the husband from above mentioned should be to the hus-
any interest in the settled portion of the band. Carter v. Taggart, 1 De G., M. &
property. In the absence of special cir- G. 286 ; 16 Jur. 300 ; 21 L. J., Ch. 216.
PRECEDENTS OF BILLS. 21
The statute of 1 & 2 Will. 4, e. 58, only applies to legal riehts. Lana-
ton V. Horton, 3 Beav. 464. » & a
It is irregular for the Court to direct any inquiries as to the conflicting
claims of the defendants until the answers of all the defendants are filed!
Mastermav y. Lewin, 2 Ph. 182. The ordinary practice appears to be,
for the plaintiff^, upon getting in all the answers, to biing the cause to a
hearing, when the Court will make such a decree or order as may be
necessary to enable the Court to decide the question in dispute between
the defendants. Angell v. Hadden, 16 Ves. 202 ; Townley v. Deare,
3 Beav. 213; Meux r. Bell, 1 Hare, 73. See The Thames and Med-
may Canal Company v. Nash, 5 Sim. 280, as to its not being necessary
for defendants to an interpleader bill to enter into evidence before the
hearing : — and as to taking the bill pro confesso against one of the de-
fendants, see Prac. vol. 1, p. 170.
34. Bill of Interpleader (m).
Between Sir H. M. and others Plaintiffs,
and
A. B., H. J. and M. J. his wife [and
three children, infants], T. B., S. B.
and R. J Defendants.
\The hill set forth a bond of the plaintiff's, who were partners together
in trade, for payment of 18,000?. to M. J. when she was unmarried :
the marriage of the defendant S. J. and M. J. his wife, and the issue
of the marriage, viz., the three infant defendants : a settlement made
previously to their marriage, iy which the bond, together with the
principal money and interest thereby secured, was assigned to the de-
fendants T. B., S. B. and R. J., upon certain trusts for the benefit
of the said M. J., her said husband, and their issue, " but the plaintiffs
are not acquainted with the particulars of the said settlement, and crave
leave to refer thereto."]
The said T. B,, S. B. and R. J. claim to be entitled under the said
settlement to receive the principal monies and interest secured by the
said bond.
The plaintiffs have lately discovered that the said bond or obligation is
now in the custody or possession of the defendant A. B., and he claims
to be entitled thereto and the principal money and interest thereby
secured.
(m) This is tlie bill in Meux v. Bell, 6 took any step in the cause it was neces-
Sim. 175. It was settled by the late Mr. sary that he should do so. The ordinary
Jacob. In the case referred to, Sir practice is, however, to oifer by the bill
Launcelot Shad well, V. C, upon the argu- to pay the money into Court, as in the
ment of a demurrer by one of the defend- next precedent. It will be perceived,
ants, held that it was not necessary for too, that no case is suggested by the
the plaintiff upon his bill to offer to pay plaintiff for or on the part of any of the
the money into Court, although before he defendants.
22 PRECEDENTS OF BILLS.
On or about &c. a notice in writing was served upon the plaintiffs, by
the solicitor of the last-named defendant, which is in the words following
&c. [claiminff the money].
[Statement of applications to the plaintiffs hy the defendant A.. B.,
and of threats to prosecute an action or suit, and that he has actually
sued out a writ in the court of in the names of the said H. J.
and M. J. his wife against the plaintiffs.]
The other defendants T. B., S. B. and R. J. also threaten and intend
to commence and prosecute some proceedings at law or in equity against
the plaintiffs, for the recovery of the amount due from the plaintiffs upon
the said bond. Plaintiffs submit that the said defendants ought to inter-
plead between themselves, the plaintiffs being ready and hereby offering
to pay the same to such of the defendants as this Honourable Court may
determine to be entitled thereto.
The said last-mentioned defendants ought to set forth the particulars of
their respective claims to the monies due upon the said bond or obliga-
tion, and how they make out the same.
Prayer.
1. That the defendants may answer the premises, and that the de-
fendants may be decreed to interplead and settle and adjust
between themselves their rights or claims to or in the money
due or payable under the said bond or obligation, the plaintiffs
■ being ready and willing, and hereby offering to pay the monies
due and payable under the same to such of the said defendants
as this Honourable Court may determine to be entitled thereto.
2. That the said defendant A. B. may be restrained by the order
and injunction of this Honourable Court from prosecuting the
said action so commenced by him as aforesaid against the
plaintiffs ; and that all the said defendants may be respectively
restrained by the order and injunction of this Honourable
Court from prosecuting or commencing any other action or
actions or legal proceeding or proceedings against the plain-
tiffs, or any or either of them, for the recovery of the monies
due or to become due or payable under the said bond or obli-
gation, or any part thereof, or otherwise concerning the matters
aforesaid (w).
3. [For general relief]
(m) In Bignold y. Audland, 11 Sim. 23, to be annexed to the bill ought to be, not
It was held, that, where a bill of inter- that the plaintiff does not collude, but to
pleader is filed by the secretary or officer the best of the plaintiflF's knowledge and
ot a company on their behalf, the affidavit belief the company do not collude with
PRECEDENTS OF BILLS. 23
35. Prayer in a Bill of Interpleader by an Insurance Co7npany.
1. That" the defendants and R. S. may interplead together, and that
it may be ascertained to whom the said sum of &c. and the interest
thereon belongs and ought to be paid, and that the plaintiff, on
behalf of the said Atlas Insurance Company, may be at liberty to
pay the said sum of &c., with interest thereon at the rate of £
per cent, per annum, from the day of , into the Bank
of England in the name of the Accountant General of this Ho-
nourable Court, in trust in this cause, (which the plaintiff hereby
offers to do,) for the benefit of such of the said parties as shall ap-
pear to be entitled thereto.
2. That the defendants may be restrained by the order and injunction &c.
from further proceeding with the said action so commenced &c., and
from commencing any other action or actions at law against the said
company, or the secretary thereof, in respect of the matters aforesaid.
Statements.
36.
Where a Joint Stock Banking Company are suing.] In and pre-
■viously to the year 1844, The London and Westminster Bank was and
has since continued to be and still is a Joint Stock Banking Company,
composed of more than six persons, carrying on business as bankers at
Lothbury, in the city of London, and at , and other places, in the
county of Middlesex, and the plaintiff is one of the members and duly
registered officer of the said Banking Company and as such is able to
sue and be sued under the provisions of the statute in that case made and
provided.
37.
In Case of a Joint Stock Banking Company, where their Public
Officer is made a Defendant.] The London and County Bank is a
Joint Stock Banking Company duly registered, and the defendant
is the public officer thereof who is entitled to sue and be sued in respect
of all transactions in which the said Banking Company is concerned.
38.
Where Secretary of a Company sues under a Private Act.] By an
the defendant, and if the bill is filed re- the bill should contain an offer to pay in-
specting a sum of money in respect of terest, as well as the principal sum. The
which interest is recoverable at law, al- practice is for counsel to move, ex parte,
though only under the provisions of the for leave to pay the money into Court,
statute of the 3 & 4 Will. 4, o. 42, s. 28, and for an injunction.
24 PRECEDENTS OF BILLS.
Act of Parliament passed &c. intituled &o. it is enacted, that, from
and after the passing of the said act, all actions and suits commenced or
instituted, or to be commenced or instituted, by or on behalf of the said
society or partnership, called The Company, against any person
or persons, body or bodies politic. or corporate, or otherwise for recover-
ing any debt or debts, or enforcing any claim or demand, claims or
demands, then due or which might thereafter become due or arise to the
said society or partnership, and all proceedings in law or equity relating
to the same or other the concerns of the said society or partnership,
should or lawfully might, from and after the passing of the said act, be
commenced or instituted and prosecuted in the name of the person who
should act as chairman of the said society or partnership for the time
being, or of the person who should act as secretary of the said society or
partnership for the time being, as the nominal plaintiff for and on
behalf of the said society or partnership.
The Plaintiff is the present secretary of the said Company, and
in that character is entitled to sue on behalf of the said company.
39. Where Deeds not in Plaintiff's Possession.
The Plaintiff has not nor ever had in his possession or power the
convfeyances and other assurances by which &c., but the same are now
in the possession or power of Sir A. S., or some other of the defendants
hereto, who refuse to discover and produce the same, and therefore the
plaintiff cannot set forth the particulars of such conveyances and other
assurances more perfectly than is hereinbefore mentioned, but he claims
leave to refer thereto when the same shall be produced.
40. Where Defendant out of Jurisdiction (o).
The said is now residing in parts beyond the seas, out of the
jurisdiction of this Honourable Court, that is to say, at in the
kingdom of (p).
41. Accumulation of Funds,
And they the said defendants [the executors'] from time to time
laid out and invested such rents and profits in the purchase of government
stock in their names, upon the trusts and according to the directions of
the said will, and they again laid out and invested the dividends and
(o) See Prac. vol. 1, pp. 169, 302. served with the subsequent proceedings,
(p) If a defendant out of the jurisdic- as if he were within the jurisdiction.
^tion is served with a bill, he must also be Lanham v. Pirie, 2 Jur. N. S. 1201, V. C. S.
PRECEDENTS OF BILLS. 25
interest of such stock in the purchase of like stock in their names, by
way of accumulation, in the manner directed by the said will (c[),
42. Allegation in Bill hy Assignee of Debt against Debtor.
The said indenture of assignment does not contain any power autho-
rizing the plaintiflF to use the name of the defendant in any action or
proceedings at law for the recovery of the said debt of £ so due
and owing from the said , and the defendant refuses to permit
the plaintiff to use his name in the action against the said for the
recovery of the said debt of £ , and the defendant, acting in collu-
. sion with the said , threatens and intends to receive the said
debt from the said ' and to release him therafrom (r).
43. Prayer in a Bill seeking an Account of Partnership
1. That an account may be t^ken by and under the decree and direction
of this Honourable Cpurt, of all the said co-partnership dealings
and transactions bet'^/een the plaintiff and the defendant ; and that
what shall appea^hereon to be due from the defendant may be
decreed to be pMd by him.
2. That a proper person may be appointed to receive, collect and get in
all the outstanding debts and monies due to or on account of the
said partja^rship business or concern, and also to take possession of
all the^^ects and property of or belonging to the said partnership.
3. That the defendant may be ordered to deliver up to such person, all
the effects and property of or belonging to the said co-partner-
.'ship in his possession or power, and also all books of account, ac-
/ counts, receipts, vouchers and papers of or belonging to the said part-
nership ; and that the defendant may be restrained, by the order and
(q) See (the Thellusson Act) 39 & 40 3 DeG. & S. 366; 13 Jur. 618; 18 L. J.,
Geo. 3, c. 98. The following are some of Ch. 191 ; Jones v. Maggs, 9 Hare, 605 ;
the most important cases upon the sub- 16 Jur. 325 ; Edwards v. Tuck, 17 Jur.
iect of trusts for accumulation: Griffithsv. 311, affirmed by L. C. and Lds. Js. 17
Fere, 9 Ves. 127; Shaw v. Bhodes, 1 M. Jur. 921 ; 3 DeG., M. & G. 40 ; Scaris-
& Cr. 135 i S. C., Evans v. Hellier, 5 CI. brick v. Skelmersdale, 17 Sim. 187 ; Burt
& F. 114. See also the following more v. Sturt, 10 Hare, 415; 17 Jur. 728 j
recent cases, where the trusts were held Wildes v.Davies, 1 Sm. &G. 475; 22 L.J,
valid : Beech v^Lord St. Vincent, 2 DeG. 495.
& Sm. 678 ; 14 Jur. 731 ; Bassil v. Lister, (r) The assignee of a debt cannot, un-
9 Hare, 177; 15 Jur. 964; Lord Barring- less some impediment exists in the way
ton V. Liddeil, 4 De G., M. & G. 480 ; 17 of his recovering his debt at law by using
Jur. 241 ; on appeal from V. C. S. 16 the creditor's name, maintain a suit in
Jur' 984,'jBraaB v. Collins, 16 Beav. 14. equity. Hammond v. Messenger, 9 Sim.
Cases where the trusts where held to be 327 ; Base v. Clarke, 1 Y. & C. C. C. 634 ;
void : Bourne V. Buckton, 2 Sim. N. S. 91 ; Sewell v. Moxstj, 2 Sim. N. S. 189 ; S. C.
21 L. J., Ch. 193 ; Nettleton v. Stephenson, Jur. 608 ; Clark v. Cort, 1 Cr. & Ph. 154.
26 PKECEDENTS OF BILLS.
injunction of this Honourable Court, from demanding, receiving or
obtaining possession of any debts, monies or property due or be-
longing to the said partnership ; and also from in ally manner inter-
meddling with the books, papers, bills or accounts of the said
co-partnership ; and that the said eifects and property of or belonging
to the said partnership may be sold and converted into money by
and under the direction of this Honourable Court.
4. That, out of the share of the defendant in the produce thereof, what
shall be found due to the plaintiff in respect of the monies of the
partnership so improp.erly applied by the defendant as aforesaid, may
be made good to the plaintiff.
5. That all such further directions as may be necessary may be given (s).
44. Prayer in a Bill against Executors and Residuary Legatees, the
latter having raised a Question of Satisfaction.
1 . That it may be declared, that the aforesaid advance and settlement of
the sum of Bank £3 per Cent. Annuities, made on the mar-
riage of the said M. C. with the said J. D. W., was not an ademp-
tion or satisfaction of the legacy of 30,000Z. like annuities given by
the said will of the said testator in favour of the said M. C. and
her issue, or of the residuary bequest also made by the said will in
favour of the said M. C. and her issue.
2. That it may be declared, that the plaintiffs are entitled to have a sum
of 30,OOOZ. Bank £S per Cent. Annuities set apart out of the per-
sonal estate of the said testator to answer the bequest contained in
the said will of 30,000Z. Bank ^3 per Cent. Annuities in favour of
the said M. C. and her issue, and that the said executors may be
directed to set apart and transfer the same accordingly.
3. That it may also be declared, that the plaintiffs are entitled to have
one equal eighth part of the residuary personal estate of the said tes-
tator set apart and duly invested upon and for the same trusts, in-
tents and purposes as tire expressed by the said will of and concerning
the last-mentioned sum of 30,000Z. &c.
4. That proper accounts and inquiries may, if necessary, be directed for
the purpose of ascertaining the clear residue of the personal estate
(s) See form of order for sale of part- M. & G. 54!2 j Bidgway v. Clare, 19 Beav.
hership property, and for a receiver, in 111. And as to appointing receiver at
Wilson V. Greenwood, 1 Swanst. 483. the instance of the solvent partner against
As to the joint and separate assets, in the assignees of bankrupt partner, free-
case of bankruptcy or death of one of two land v. Stansfeld, 2 Sm. & G. 479 ; 1 Jur.
partners, see Butchart v. Dresser, 4 De G., N. S. 8.
PRECEDENTS O:^ BILLS. 27
of the said lestator, and that one equal eighth part thereof may be
set apart and invested accordingly (w).
5. \For further relief,^
45. Charges and Prayer in Bill to rectify Settlement and remove
Trustees.
The truth of the matters aforesaid would appear, if the defendants
R. W. and T. W. would set forth, as they ought to do, when and where,
and how and from whom and in whose presence the said T. W. received
the instructions for the said settlement and the said new bonds executed
as aforesaid, and whether or not in writing, and what has become thereof
and of the drafts and copies of the said settlement and bonds, and of all
letters and notes which passed about the same or the preparation thereof,
and whether the said T. W. made any and what entries in any and what
book or books or bill of costs about taking such instructions (x), or the
attendances for the same, and what is become thereof.
That the said settlement ought to be rectified and altered according
to the intention of the parties thereto, and that the said former securities
for the said loan to the said ought to be restored to the plaintiffs,
and ought to be taken as still subsisting &c.
That the defendants and ought to be removed from being
trustees, and new ones appointed by the said M. A. D.
Prayer.
1. That it may be declared, that the aforesaid exchange or substi-
tution of the said new securities for the said several sums of
£ and £ Bank Annuities, and the dividends
thereof, was a fraud upon the plaintiffs.
(«) As to the doctrine of satisfaction. — CI. & Fin. 146; Montague v. Montagm, 15
If a father makes a provision for a child Beav. 565 ; Cowper v. Mantell, 2 Jur. N. S.
by settlement on her marriage, and after- 745, R. As to the proper definition of a
wards makes a provision for the same person in loco parentis, Ex parte Pye, 18
child hy his will, it is primd facie to be Ves. 140, 154 ; Wetherby v. Dixon, 19 Ves.
presumed that he does not mean a double 407 — 41 2 ; Powys v. Mansfield, 3 My. & Cr.
provision. But this presumption may be 359, on appeal from Vice Chancellor Shad-
repelled or fortified by intrinsic evidence, well, 6 Sim. 528. As to the doctrine of
from the nature of the two provisions, or ademption or satisfaction pro tanto, Pym v.
by extrinsic evidence of the intention of Lockyer, 5 My. & Cr. 29 ; see also Hull v.
the testator at the time of making his Hill, 1 Dr. & W. 94 ; Kirh v. Eddowes, 8
will. Slight differences between the two Jur. 530 ; Milligan v. The Earl of Hard-
provisions will riot repel the presumption wiclte, 1 Jur. N. S. 793, V. C. W. And as
against double provisions. Weall v. Rice, to the general doctrine, see Hopwood v.
2 R. & My. 251 ; see also Carverv. Bowles, Hopwood, 2 Jur. N. S. 747, R. i Palmer v.
lb. 301 ; Lloyd V. Harvey, lb. 310; Shef- Newell, 25 L. J. N. S. 461, Lds. Js. ; 2
field V. The Earl of Coventry, Jb. 317; Jur. N. S. 268.
Wharton V. Lord Durham, 5 Sim. 297, {x) See 1 Sug. V. & P. 264, 10th ed. ;
affirmed by Lord Brougham, C, 3 My. & Bold v. Hutchinson, 5 De G., M. & G. 558,
K. 472, but reversed in House of Lords, 3 L. C. ; 2 Jur. N. S. 97.
28 PRECEgENTS OF BILLS.
2. That it may be declared, that the said defendants and
respectively are liable for the said several sums, to the same
extent and in the same manner as if such exchange or sub-
stitution 'of securities had not taken place, and that they may
be decreed forthwith to pay or make good such sums respec-
tively, or such of them and such parts thereof as they were
respectively liable for before such exchange or substitution of
securities took place, and that the said defendants and
may be decreed forthwith to pay or replace the said
sum of £
3. That, if necessary or proper, the said new securities may be de-
livered up to be cancelled.
4. That the said and may be removed from being
trustees of the said settlement, and that the plaintiiF M. A. D.
may be at liberty to appoint new trustees thereof.
5. That it may be declared, that the said settlement is improperly
framed in the particulars hereinbefore mentioned, and that the
same may be corrected accordingly; and that the said trust
monies, when so paid or replaced, may be duly invested upon
the trusts of the said settlement, when so corrected as aforesaid.
6. That the said J. W. may be declared to be responsible for what,
if anything, may be lost by the aforesaid exchange or substitu-
tion of securities.
46. Allegations and Prayer in a Bill for Specific Performance
of a parol Agreement, the Plaintiff relying upon Part Per-
formance.
[The hill stated the lease under which the plaintiff claimed, and
negociations for purchase by the defendant.]
On the day of it was agreed (y) by and between the
plaintiff and defendant, that the defendant should give the plaintiff
£ for the purchase of the plaintiff's term and interest in the said
leasehold premises under the said lease, he, the defendant, taking the
plaintiff's title, such as it was, and the plaintiff consenting to do certain
works to the premises which the defendant then specified (that is to
say), &c.
iy) As to what sufficient signing by Boydellv. Drummond, 11 East, 142; and
" the party to be charged " within the see JVood v. Midgley, 5 De G., M. & G.
meaning of the Statute of Frauds, see 553 ; 23 L. J., Cli. 653.
Laythoarp v. Bryant, 2 Bing. N. S. 735 j
PRECEDENTS OS BILLS. 29
[Subsequent correspondence and statement of the works required by
the defendant to be performed to the premises.l
The plaintiff, in pursuance of the said agreement so entered into be-
tween the plaintiff and defendant as aforesaid, performed («) all the
■works so agreed to be performed by him to the said premises ; and the
plaintiff, in pursuance of the said agreement and in full faith and reliance
that it would be performed on the part of the defendant, permitted the
defendant to enter into, and he did accordingly on &c. enter into and
remain in possession of the said premises.
The defendant, however, now refuses to perform the said agreement
on his part, and he alleges that no contract has been entered into by or
between the plaintiff and defendant for purchasing the said premises for
the term and interest of the plaintiff therein under and by virtue of the
said indenture of lease ; whereas the plaintiff charges the contrary thereof
to be the truth.
The defendant, at other times, alleges that he has not accepted the title
of the plaintiff as shown by the said indenture of lease ; whereas the
plaintiff charges that the defendant has accepted the plaintiff's title to
the premises, and has so admitted to the plaintiff and to other persons.
[Charge as to documents.]
Prayer.
The Plaintiff prays as follows : —
1. That the agreement so made or entered into by or betweeen the
plaintiff and defendant for the purchase of the term and interest
of the plaintiff in the said leasehold messuage and premises
may be specifically performed by the defendant, the plaintiff
being willing to perform the same so far as it remains on his
part to be performed.
2. That proper directions may be given for settling an assignment
of the said premises to the defendant for the remainder of Ithe
plaintiff's term therein, with a proper covenant therein to in-
demnify the plaintiff against the payment of the rent and ob-
servance of the covenants respectively reserved and contained
in the said indenture of lease j and that the defendant may be
decreed to execute such assignment or a counterpart thereof,
and that, upon the execution of the assignment by the plaintiff,
the defendant may be decreed to pay the said purchase- money
(z) As to part performance taking the v. Mighall, 18 Ves. 328 ; Morphett v. Jones,
case out of the Statute of Frauds, see 1 Swanst. 172 ; Mundy v. JoUiffe, 5 M. &
Clinan v. Cook, 1 Sch. & Lef. 41 ; Gregory C. 167 ; Dale v. HarrUon, 5 Hare, 381.
30 PRECEDENTS OP BILLS.
of £ to the plaintiff, together with interest at the rate of
41. per cent, per annum from &c., together with the costs of
this suit (a).
3. [For further relief ^c]
47. Prayer for transferring Fund from the Credit of one Cause to
that of another.
That the Accountant-General of this honourable Court may be ordefed
to tranfer the said £ Bank ^3 per Cent. Annuities and the
said sum of £ cash, now standing in his name in the books of
the Governor and Company of the Bank of England, in trust in the
said cause " S. v. B.," and all dividends which may accrue thereon
previously to such transfer, from the said cause of " S. v. B." into
this cause, and that the same may be duly administered in this cause
and be paid to or secured for the benefit of the parties entitled
thereto.
48. Charges and Prayer in a Bill to obtain a Writ of Ne exeat Regno.
The defendant C. D. is a natural born British subject, but he is pos-
sessed of large estates in the island of St. Croix, and is permanently
settled and has his fixed place of abode in the said island, which is out
of the jurisdiction of this Court.
The defendant is now and has for some time been on a visit to this
country, and is staying at &c., but he means and intends very shortly to
leave England, and to return to his residence in the said island of St.
Croix, in which case the plaintiffs charge, that they will be(&) without
remedy in the premises, and altogether deprived and defrauded of the
money so justly due and owing to them as aforesaid.
The plaintiffs therefore submit that the said defendant ought to be
restrained from quitting this kingdom, and that her Majesty's writ of
ne exeat regno ought to issue for that purpose.
(o) In a bill, as well as claim, by a The judgment in the latter case was re-
vendor against a purchaser for a specific versed on appeal, on the ground that the
performanceof an agreement, if the plain- plaintiff's suit was substantially for the
tiff relies upon an acceptance of title by purpose of recovering a compensation for
the defendant, as a ground for dispensing the use and occupation of the premises ;
with the usual inquiry as to title, there but the doctrine in this note has been re-
must be a specific charge to that effect, cognized and followed in subsequent
although the facts and circumstances cases.
stated in the bill should warrant the con- (i) Or in danger " of losing his debt
elusion that the title has been accepted. or claim." Hopkin v. Hopkin, 10 Hare,
CHve V. Beaumont, 1 De G. & S. 397 ; App. xxvii. ; 17 Jur. 343 ; and so in the
Goftm V. Frankum, 2 De G. & S. 561. affidavit
PRECEDENTS OF BILLS.
31
Prayer.
[After the former 'part of the prayer.]
That in the meantime the defendant may be restrained by her
Majesty's writ of ne exeat regno issuing out of and under the
seal of this honourable Court from leaving the kingdom [or
from going to any part beyond the seas, or to Scotland, with-
out the leave of this honourable Court], and that the said writ
may be marked with the sum of ^ as a direction for the
sheriiF to take bail thereon (c).
49. Sill of Discovery, and Prayer.
Allegation or Charge.] That the plaintiff is unable safely to defend
the action [or suit] which has been so commenced [or instituted] and is
now pending in the said Court of [or in this honourable Court],
without a full discovery from the said defendant of all and singular the
matters and things which are hereinbefore stated (tZ).
Prayer.
That the defendant may make a full and true discovery and dis-
closure of and concerning the matters hereinbefore stated (e).
(c) The bill should contain a prayer
for the writ, if the intention of the de-
fendant to leave the kingdom was known
to the plaintiff at the time of filing the
bill. See ColUnson v. , 18 Ves. 353 ;
Moore v. Hudson, 6 Mad. 228 ; Sharp v.
Tayhr, 11 Sim. 50; and Earned v. Laing,
13 Sim. 255. If the plaintiff becomes
aware of the intention of the defendant
to leave the country after the bill is filed,
the application for the writ may be made
by motion, without filing a supplemental
bill previously. As to the cases in which
the writ is issued, see Prac. vol. 2, p. 1279.
As to the form of the affidavit and writ,
lb. pp. 1287, 1289. See also the obser-
vations and judgment of Lord Eldon in
Pannell v. Taylor, T. & Russ. 100, 103.
Where the writ is applied for against a
personal representative, the affidavit of
the plaintiff should state that the execu-
tor or administrator has received assets to
the amount of the debt or claim. Boovey
V. Sutcliffe, 2 Eq. Rep. 706, V. C. W.
The affidavit of the threat or intention
to go abroad must be positive, and not
merely upon information and belief. Jones
V. Alephsin, 16 Ves. 470. In Moore v.
Hudson, 6 Mad. 218, two writs were
granted against husband and wife, the
latter being an executrix, the plaintiff
not undertaking to issue more than one.
(d) A person filing a bill of discovery is
bound to state the purpose for which he
wants discovery. Heming v. Dingwall, 2
Ph. 212, 214..
(e) This is the prayer where no relief
is sought, but merely a discovery from
the defendant
The powers which the courts of law,
as well as equity, now possess, under the
recent statutes, of obtaining discovery
from parties to actions and suits, have
rendered bills of discovery of rare occur-
rence, but there may be occasions in
which in which it would be expedient to
file such a bill. Lovell v. Galloway, 19
Beav. I.
As to the jurisdiction of courts of law,
see 14 & 15 Vict c. 99, s. 23 ; 17 & 18
Vict. c. 125, ss. 151, 152. This jurisdic-
tion is not limited to matters respecting
which a discovery can be obtained in a
court of equity. Osborn v. London Dock
Company, 1 Jur. N. S. 93 ; Martin v. Hem-
ming, 10 Exch. 478.
As to the jurisdiction in equity, see 15
& 16 Vict c. 86, s. 19.
The words " that such other order may
he made upon the d^endants as the nature
32 PEECEDENTS OF BILLS.
50. Sill of Revivoi' and Supplement, in a Case which was considered
as not falling under either of Sections 52 and 53 o/" 15 ^ 16
Vict. c. 86.
M. S., H. S. and E. S., infants, by A. B.
their next friend Plaintiflfe,
S. D. and F. D. his wife, R. B. and E. B.
his wife, R. J. B., J. S., J. B., A. S.
and L. A Defendants.
Bill of Revivor and Supplement.
To&c.
Humbly complaining &e.
1. ^Original bill filed hy the two defendants, the femes covert, then
both unmarried and infants, and the plaintiffs in the supplemental suit
against the defendants J. S., A. S. and L. A., stating will of C D.,
devising real estates to L. A. and other trustees {deceased), under which
the children of the testator's son, the.plaintiffs in the original cause, and
the defendant J. S,, and also the defendant A. S., took beneficial in-
terests, and praying the execution of the trusts of the will],
2. [Appearance of defendants to original bill.]
3. Divers proceedings and orders have since been taken and- made
respectively in the said original suit.
4. The above-named defendant F. D., then F. S., attained the age of
twenty-one years on &c., and on &c. she intermarried with and became
the wife of the defendant 8. D., and the said suit thereby became abated.
And by way of supplement the above-named plaintiffs show as fol-
lows : —
5. No settlement affecting the share or interest of the above-named
defendant F. D. in the said real estates has ever been made.
6. By an order made by his Honor &c. on &c. it was ordered that,
upon producing to the registrar an office copy of an affidavit, proving
the due execution by all parties, of a deed in exact conformity with the
draft articles for a settlement in the order mentioned, the defendant E. B.,
then E. S., and the defendant R. B. should be at liberty to intermarry.
of the case may require," do not convert bill, in aid of a defence to an original bill,
a bill of discovery into a bill for relief. Heming v. Dingwall, 2 Ph. 212.
South-Eastern Railway Company v. The In Lovell v. Galloway, the Master of the
Submarine Telegraph Company, 18 Beav. Rolls ordered a defendant to a bill of dis-
429 ; 17 Jur. 1044. See also Saker v. coveryj who had unsuccessfully opposed
Bramah, 7 Sim. 17. the plaintiff's motion for an injunction to
As to Costs.'] The 12th Order of the stay the defendant's proceedings at law,
General Orders of May, 1845, is not ap- to pay the costs of the motion,
plicable to any case but that of a cross
PRECEDENTS OF BILLS. 33
7. [Articles for settlement accordingly, of which defendants J. S.
and J. B. are trustees, and by' which defendant R. B. covenanted to
settle his intended wife's share in the estates, upon trust for her separate
use for life, with remainder for the benefit of their children. The
trusts are shortly stated."]
8. The marriage between the defendants R. B. and E. B. his wife was
duly solemnized, and the said E. B. has since attained the age of twenty,
one years.
9. There has been issue of the last-mentioned marriage one child only,
viz., the above-named defendant R. J. B.
10. Under the circumstances aforesaid, the said original suit and pro-
ceedings have become defective as well as abated, and the above-named
plaintiffs are desirous that the same should be revived, and should be
carried on and prosecuted between the parties to this suit, in manner
hereinafter prayed.
Prayer.
The plaintiffs pray as follows : —
1. That the said suit, orders and proceedings may stand revived,
and be in the same plight and condition that the same would
have been in if the same had not become abated, and that this
suit, so far as may be necessary or proper, may be deemed and
taken to be supplemental to the said original suit as revived ;
and that the orders and proceedings in such last-mentioned suit
may be carried on and prosecuted between the parties to this
suit, in the like manner as between the parties to the said original
suit as revived (_/).
2. [General relief]
Names of defendants.
The defendants &c.
(/) In the case in the text, it was con- In Jebb v. Tugwell, 2i L. J., Ch. 670,
sidered that a supplemental bill was ne- the Master of the Rolls ordered that an
cessary, and that it did not fall under infant, who was born pending the suit
sections 52 and 53 of the 15 and 16 Vict. and had not been brought before the
c. 86, or either of them. The cases, how- Court by supplemental bill or otherwise,
ever, upon the subject are not satisfac- should be bound by the decree. And see
tory. In the following cases, where there the earlier cases of Petre v. Petre, 1 W.
was a transmission of interest, the 62nd Rep. 362 ; Morritt v. Walton, 2 W. Rep.
section has been held to apply : Atkinson 544, V. C. K. ; Hart v. Tulk, 2 W. Rep.
V. Parker, 2 De G., M. & G. 221 ; Ful- 131.
lertm v. Martin, 1 Drew. 238 ; Lash v. Cases not within the 52nd section :
Miller (2nd May, 1855), 4 De G., M. & Jervoise v. Clark, 2 W. Rep. 337, V. C. K.;
G. 841; 1 Jur. N. S. 457; Piclfford v. Nicholson v. Gibb, lb.; Bendy v. Bendy,
Brown (24th May, 1855), X Kay & J. 5 W. Rep. 221, V. C. W., which was the
643; Hail V. Clive (17th July, 1855), 20 case of a devisee of the deceased party ;
Beav. 575 ; Notley v. Palmer, 1 J(ir. N. S. and see Commerell v. Hall, 2 Drew. 194,
221, V. C. K. ^^o*—'- ■^'^I'-'i- Sjf^vf. 2^'f said by counsel, in Pickford y. Brgwn, to
34 PKECEDENTS OF BILLS.
51. Supplemental Bill hy Creditors' Assignee, Plaintiff having become
Bankrupt.
[Title, #c.]
1. On the day of 1855, F. F., late of &c., exhibited his
original bill of complaint in this Honourable Court, which was after-
wards amended, and as amended was against the above-named defendant
M. W., and thereby prayed &c.
2. The defendant M. W. appeared to the said original and amended
bills and filed answers thereto respectively.
3. On &c. the defendant M. W. filed interrogatories for the examina-
tion of the said F. F., to which the said F. F. has filed his answer.
4. A petition for adjudication of bankruptcy against the said F. F.
having been presented to the Court of Bankruptcy, London, the said
F. F. was on &c. duly adjudged and declared a bankrupt; and the
above-named defendant W. B, was duly appointed and now is the official
assignee of the estate and effects of the said F. F., and the plaintiff T. D.
has been duly appointed and now is the creditors' assignee of the estate
and effects of the said F. F., and all the real and personal estate and
effects of the said F. F., of or to which he was seised, possessed or en-
titled at the time of his bankruptcy, are now vested in the plaintiff and
the said W. B., as such assignees as aforesaid, for the benefit of the
creditors of the said F. F. who are entitled to come in under the said
bankrtptcy.
5. The plaintiff has duly obtained the leave or permission of the said
Court of Bankruptcy to commence and prosecute this present suit (^g).
6. "The defendant W. B. refuses to permit his name to be used as a co-
plaintiff in this suit.
7. In consequence of the bankruptcy of the said F. F. the said original
suit and the proceedings thereunder have become defective, but the plain-
tiff is advised and humbly submits that he is entitled to have the benefit
thereof.
Prayer.
The plaintiff prays as follows : —
1. That the plaintiff may have the full benefit of the said original
suit and the proceedings therein against the defendant M. W.,
and may have the same relief against him as the said F. F.
have been overruled, but the observation See also Prac. vol. 1, p. 1168; and Seton
of the learned Vice-Chancellor in the on Decrees, 600, 602.
former case, applied to the 52nd and not {g) See " The Bankrupt Law Consoli-
to the 53rd section, under which the ap- dation Act, 1849," 12 & 13 Vict u. 106,
plication in^ic^ford v. Brown was made. o. 153.
PRECEDENTS OF DILLS. 35
might or could have had against the said defendant in case he
the said F. F. had not become bankrupt (A).
2. {For further relief.']
Names of defendants, &c. [^Counsel's name.]
52. Bill of Revivor and Supplement.
Between W. L. and C. C. his wife . . . Plaintiffs,
and
W. R., A. S. and others .... Defendants.
• [The hill (i) stated the mill of the testator appointing the defendant
W. M. and J. S., deceased, executors, and contained statements as to
legatees and the deaths of several of them. It also stated the fling of
the original bill by some of the legatees against the executors and resi-
duary legatees, and a decree directing the usual accounts of the estate of
the testator^ with class and other inquiries. The bill then alleged, that
the decree had been carried into the Master's office; that certain ac-
counts had been taken, but no report had been made.]
" The plaintiffs further state, by way of supplement," &c. [The bill '
then stated the deaths of the plaintiffs and of several of the defendants,
including J. S., one of the executors.] " The said suit having become
abated in manner aforesaid, no proceedings have been taken to revive the
same."
[The bill then set forth facts and circumstances for the purpose of
charging the surviving executor and the estate of the deceased executor
represented by the defendant A . S., with wilful default, and of declar-
ing certain purchases made by the surviving executor of portions. of the
testator's estate void, and the bill also contained the following general
charge : — ]
The defendant W. R. and the said J. S. also in many other respects
(ft) This case was considered not to filed it) that, on the ground of the fur-
fall under the 52nd section of the 15 & ther relief sought, it was a supplemental
16 Vict c. 86, as the bankruptcy was bill in the nature of a hill of review,
that of the plaintiff, and the official as- which cannot be filed without the leave
signee refused to join as a plaintitf : it of the Court. Berrow v. Morris, 10 Beav.
would have been otherwise if the (fe/e«d- 437; U Jur. 790; Hodson v. Ball, 11
aiit had become bankrupt. See Lash v. Sim. 456 ; I Phil. 177 ! Taylor v. Taylor, ^
Jl/«fer, 4DeG., M. &G. 841. 1 M. & G. 397. &ee aXso Dmis v . Blucic, ^
(«) Leggo V. Richards, V. C. Kinders- 6 Beav. 393 ; Bainbrigge v. Baddeley, 2
ley, 20th Jan. 1857, MSS. It is to be Phil. 705, 708; and Toulmin v. Copland,
observed, that in this case the supple- 4 Hare, 44 ; reversed, 2 Ph. 711.
mental bill was filed by one of the defind- As to supplemental bill after decree,
ants to the original bill and her husband, see Prac. vol. 2, p. 1378. Such a bill
and was therefore sustainable, and not should be in aid of the directions con-
open to objection (as it would have been tained in the decree on the original suit.
if the plaintiffs in the original suit had Wilson v. Todd, 1 M. & Cr. 42, 47.
d2
36 PRECEDENTS OF BILLS.
wasted and mismanaged the said testator's estate, and thereby occasioned
very considerable loss thereto ; and they have neglected to call m and
receive various parts of such estate, and have allowed the same to remam
outstanding upon insufficient security (As), and have also retained (Z) large
•balances from time to time in their hands without investing ihe same.
The plaintiffs have never received anything on account of the legacy
bequeathed to the plaintiff C. L. by the said will, or in respect of any ,
part of the residuary estate of the said testator, although from time to
time since the abatement of the said suit they have made frequent appli-
cations to the defendant W. R. for an account of the real and personal
estate of the said testator, and for payment of what was due to them in
respect thereof.
The defendants W. R. and J. S. purchased or procured to be trans-
ferred into their joint names various large sums of Bank Annuities,
forming part of the said testator's estate, a considerable part of which
has been since sold out by the said W. R. and applied for purposes not
sanctioned by the said testator's said will, and the said defendant W. R.
, threatens and intends to sell out and apply in like manner the remainder
of such Bank Annuities.
Prayer.
The plaintiffs therefore pray as follows : —
Prayer to revive.^ 1. That the said suit and proceedings which so
became abated as aforesaid may stand and be revived, and be in
the same plight and condition, as the same were in at the time
of the abatement thereof.
2. That the said decree made on the hearing of the said cause may
be prosecuted and carried into effect, and that the plaintiffs
may have the full benefit thereof.
3. That an account may be directed by this Honourable Court of*
all the personal estate of the said testator, which would, but
for the wilful neglect or default (w) of the said W. R. and
(/c) Caney v. Bond, 6 Beav. 486 j Rat- And the decree should either contain
cliffe V. Winch, 17 Beav. 217; Buxton v. some declaration, or direct some inquiries
Buxton, 1 My. & Cr. 80 ; Hughes v. Emp- with a view to determining the question
son, 22 Beav. 181 ; Sate v. Hooper, 5 De as to the wilful default of the accounting
* G,, M. & G. 338. party, otherwise the question will not be
(2) As to investment of assets by exe- open on the cause coming on for further
cutoT, see Johnson V. Netoton, 17 }w:. 825; consideration. Jones v. Morrall, 2 Sim.
22 L. J. 1039. N. S. 241; 21 L. J., Ch. 630; see also
(m) The plaintiff should charge wilful Ticlcner v. Smith, 3 Sm. & G. 42.
default in the bill, and establish a primi As to charging executor with interest,
facie case thereof at the hearing. Shep- see Attorney-General v. Alfard, 4 De G.,
herdy. Tow-good, Turn. & R. 379 ; Garland M. & G. 843 ; 1 Jur. N. S. 861.
v. Littlewood, 1 Beav. 527. As a general rule, an executor is not
PRECEDENTS OF BILLS. ' 37
J. S., or either of them, have come to their or either of their
hands.
4. That the purchase («) hereinbefore mentioned to have been made
by the defendant W. R. of the said freehold and leasehold
premises at may be declared to be void and of no effect j^
or that the said W. R. and J. S. may be declared bound to
make good to the said testator's estate the full present value of
such premises, and that all proper and necessary directions
may be given and inquiries made for giving effect to such de-
claration.
5. That in taking the accounts by the said decree, and hereinafter
sought to be taken, the said W. R. and J. S. may be disal-
lowed all costs, charges and expenses incurred by them or
either of them, in consequence of their not having duly eon-
verted and invested the said testator's estate pursuant to the
* directions of the said testator's will.
6. That the defendant A. S. may admit assets of the said J. S. suf-
ficient to meet what shall be found due from the said J. S.
upon taking the said several accounts, or that all proper and
necessary accounts may be taken of the personal estate and
eflfects of the said J. S.
7. That some proper person may be appointed to get in and receive
the outstanding personal estate and effects of the said testator,
with all proper and necessary directions in that behalf; and
that the defendant W. R., his servants and agents, may be re-
strained by the order and injunction of this Honourable Court
from getting in and receiving any part thereof, and from selling
out, parting with or disposing of, except under the sanction of
this Court, any part of the Bank Annuities now standing in
his name as aforesaid in the books of the Governor and Com-
pany of the Bank of England (o).
8. That, for the several purposes aforesaid, all necessary accounts
may be taken, directions given and inquiries made.
justified in carrying on the testator's trade Sealer, 3 Y. & C, Exch. 717.
.except for the purpose of winding-up. (o) It is not necessary, or indeed proper,
Collinson v. Lister, 20 Beav. 356 ; 24 L.J. to make the Bank of England a party.'
762 on appeal Lds. Js. ; 25 L. J., Ch. 38 ; See 40 Geo. 3, c. 36 ; Perkins v. Bradley,
2 Jur. N. S. 75. 1 Hare, 232 ; Prac. vol. 1, p. 135.
(») See form of decree where a trustee As to restraining order and distringas
purchases a trust estate at an alleged under 5 Vict. c. 5, see In re Marquis of
under value, and claims the benefit of Hertford, 1 Phil. 203; and Prac. vol. 2,
permanent improvements. Williamson y. pp. 1267 and 1270.
38 PRECEDENTS OF BILLS.
53. Supplemental Statement.
In Chancery.
Between &o.
[Title of original cause."]
Supplemental Statement to be added to the original Bill in this Cause.
[^Here state the facts or circumstances which have occurred since
the filing of the bill, and which the plaintiff is desirous of putting in
MSMe(p).]
Claims.
It is not considered necessary to give forms of claims in this work, as
the General Order of 22nd May, 1850, by which they are authorized,
as well as the forms and orders thereon, are given in the 10th chapter
of Prac. vol. 1, p. 379.
{p) It is to be borriQ in mind, that if necessary where the cause is in sueh a
the plaintiff is entitled to amend his bill, state that the plaintiff is not at liberty to
it will not be necessary to Hie a supple- amend his bill. 15 & 16 Vict. c. 86, s. 53 ;
mental bill, to put in issue any facts or 44th Order of August, 1852 ; Prac. vol. 2,
circumstances which may have occurred p. 1169.
after the institution of the suit ; but they A supplemental statement may be
may be introduced by amendment j a sup- either written or printed,
plemental statement, therefore, is only
/2/^'
'yf/r/i^ i
( 39 )
CHAPTER III.
Interrogatories.
54.
In Chancery.
John Lee Plaintiff.
James Styles and Henry Jones . . Defendants.
Interrogatories for the Examination of the above-named Defendants in
answer to the Plaintiff's Bill of Complaint (g').
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 first of May, one thousand eight hundred and fifty, in the plaintiff's
hill mentioned ?
2. What are the particulars of such charge, if any, the date, nature
and short effect of the security, and what is due thereon ?
3. Are there or is there any other mortgages or mortgage, charges or
charge, incumbrances or incumbrance, in any and what manner affecting
the aforesaid premises, or any part thereof?
4. Set forth the particulars of such mortgages or mortgage, bharges
or charge, incumbrances or incumbrance j the date, nature and short
effect of the security ; what is now due thereon ; and who is or are en-
titled thereto respectively ; and when and by whom, and in what manner,
every such mortgage, charge or incumbrance was created.
The defendant James Styles is required to answer all these inter-
rogatories.
The defendant Henry Jones is required to answer the interrogatories
numbered 1 and 2.
Y. Y.
[Hame of counsel.]
55. As to a Deed.
1. Was not the indenture or deed of the day of in the
plaintiff's bill mentioned, or some and what other indenture or deed,
of some and what other date, made between the several persons, and
whether or not to the purport and effect in the plaintiff's bill in that
(j) Frac. vol. 1, p. 261 ; Schedule (C) to Orders of August, 1852.
40 INTERROGATORIES.
behalf mentioned and set forth, or between some and what other persons,
or to some and what purport and effect ?
56. As to Documents.
Have not or has not the defendants, or some or one and which of them,
now, or had not they, or some or one and which of them, heretofore and
when last in their, or some or one and which of their, possession or power,
or in the possession or power of their, or some or one and which of their,
solicitors or solicitor, agents or agent, and whom by name, some and
what deeds or deed, agreements or agreement, accounts or account,
books of account or book of account, cash books or cash book, or other
books or book, letters or letter, bills or bill of costs, receipts or receipt,
vouchers or voucher, memoranda or memorandum, or some and what
other documents or document, paper writings or paper writing, or some
and what copies or copy or extracts or extract of or from the several
particulars aforesaid, or some or one and which of them, referring or
relating to the several matters hereinbefore stated, or to some of them,
and would not the truth of such matters, or of some and which of them,
appear by such particulars if the same were produced ?
Let the defendants severally set forth a full, true and perfect list or
schedule of all such particulars, distinguishing those which now are from
those which once were, but are not now, in their respective possession or
power.
57. As to Personal Estate,
Set forth a full, true and particular account of all the personal estate
[not specifically bequeathed (»•)] of or to which the testator died
possessed or entitled, and the particulars whereof the same consisted at
the time of his death, and the true and utmost value thereof, specifying
the amount of cash in the testator's bouse, at his bankers or elsewhere,
and the debts or sums of money owing to him, and from whom respec-
tively ; and set forth what part or parts of the said testator's personal
estate has or have been received by the defendants and or
either and which of them, or any person or persons and whom by name,
by their or either of their order, or for their or either of their use.
Also set forth the respective amounts of the said testator's funeral and
testamentary expenses, and of his debts and the several particulars thereof
respectively, and the several amounts paid by the said defendants, or
either and which of them, for or in respect of the funeral and testa-
mentary expenses of the said testator, and of his debts respectively.
(r) The passage within brackets should be omitted, if it is supposed that the personal
estate is not sufficient for payment of debts.
INTERROGATORIES. 41
Set forth an account of all and every the sum and sums of money paid,
and when and by whom and to whom, for or in respect of the several
legacies bequeathed by the will of the testator.
Set forth the amount of the clear residue of the said testator's personal
estate, and how the same and every part thereof is invested, and in whose
hands the same and each and every or any part thereof is.
Set forth whether the debts due to the said testator, or any and which
of them, or any other and what part or parts of his personal estate are
or is unreceived, unconverted or outstanding, and how and upon what
security or securities, and why have the same debts and such other per-
sonal estate not been respectively received, converted or gotten in.
58. As to Meal and Leasehold Estates.
Set forth a full, true and particular account of all the freehold, copy-
hold and leasehold estates of or. to which the said testator was seised,
possessed or entitled, or over or in respect of which he had any disposing
power or beneficial interest at the time of his death, and in whose pos-
session or occupation and at what rent or rents the same and every part
thereof have or has been since the death of the said testator ; and a like
account of all and every the sum and sums of money which have or hath
been received by the defendants and or either and which
of them, or by any person or persons by their or either and which of
their order, or for their or either and which of their use, for or in respect
of the rents and profits of the said testator's freehold, copyhold and
leasehold estates respectively since the death of the said testator, and
when and by and from whom received, and in respect of what particular
estate or estates or property, and for what rent and when due, and for
what parts of the said testator's estates, all and every such sums were
respectively received ; and set forth how and in what manner the same
sums and every of them have or hath been applied or disposed of, and
what is the balance in the hands of the defendants, or either and which
of them.
Set forth a like account of the several freehold, copyhold and lease-
hold estates which have been sold or disposed of, and when and by and
to whom and for what sum and sums of money, and when and from
whom all and every or any of such sum or sums of money hath or have
been received by or come to the hands of the said and or by
any person or persons by their or either and which of their order, or for
their or either and which of their use ; and set forth whether and which
of the said estates respectively of the said testator remain unsold and
undisposed of and why, and what is the value thereof respectively.
( 42 )
CHAPTER IV.
Demurrers.
Preliminary Observations.
See Prac. vol. 1, p. 437. A demurrer for want of equity raises the
question to be determined by the Court before any further proceedings
are taken in the suit : — Whether the plaintiff is, having regard to the
case made by his bill, entitled to any relief.
In a doubtful case, the Court will not decide the question raised upon
the bill, upon demurrer, but will overrule the demurrer, without pre-
judice to the defendants raising the objection at the hearing. Bromn-
smord v. Edwards, 2 Ves. 243 ; Mortimer v. Hartley, 3 De G. & 8m.
321 ; Evans v. Evans, 18 Jur. 666, Lds. Js.
Except where the point is one which can be satisfactorily determined
upon the argument of a demurrer, as upon the construction of a will or
other instrument, where no accounts are required to be taken, or where
the plaintiff asserts a right with respect to which the facts are accurately
stated, but no substantial defence can be set up by the defendant, it is
proper that the question between the parties should be determined upon
demurrer ; and generally, if the bill is demurrable and the defendant
does not demur, but allows the case to proceed to a hearing, the Court
will dismiss the bill without costs. Strickland v. Strickland, 6 Beav.
77. It can, however, rarely be advisable to demur on technical grounds. .
A demurrer, according to the present practice, must be filed within
twelve days after appearance. If, therefore, there is any ground for
supposing that it is desirable to demur, the defendant's solicitor should
at once submit a printed copy of the bill for the consideration of counsel.
59. Title and Commencement.
The demurrer of defendant to the bill of complaint
of tlie above-named plaintiff.-
Ihis defendant, by protestation, not confessing all or any of the matters
and things in the plaintiff's bill of complaint contained to be true in
such manner and form as the same are therein set forth and alleged, doth
demur to the said bill, and for cause of demurrer sheweth, thaf&c.
[here set forth cause of demurrer'].
DEMUERERS. 43
60. Conclusion.
Wherefore and for divers other good causes of demurrer appearing* in
the said bill, the defendant doth demur thereto, and humbly demands
the judgment of tlm^Court whether he shall be compelled to make any-
further or other answer to the said bill ; and prays to b^hence dismissed
with his costs and charges in this behalf most wrongfully sustained./
{CovmseVs name J]
61. Demurrer for want of Equity.
■ [Title and commencement as before.]
Cause of Demurrei:'] That the plaintiff hath not in and by his said
bill made or stated such a case as entitles him, in a court of equity, to any
discovery from this defendant \or these defendants or either of them], or
to any relief against him [or them or either of them], as to the matters
contained in the said bill or any of such matters. Wherefore &c. (s).
62. Demu7'rerfor Multifariousness.
The demurrer of &c.
This de:^endant, by protestation &c., doth demur and for cause of de-
murrer sheweth, that it appears by the said bill that the same is exhibited
• against the defendant and the several other persons therein named as
defendants thereto for distinct matters and causes, in several whereof,
as appears by the said bUl, this defendant is not in any manner in-
terested or concerned, and that the said bill is altogether multifarious (t).
Wherefore &c. te5.'2:«^Tl.Cr'^r^Sr^^^^'*5^':^
63. Demurrer and Answer.
The joint and several demurrer of W. L. and J. L. to part (u),
and the joint and several answer of the same defendants to the
(») In Richardson v. Hastings, 7 Beav. G., M. & G. 41 (Lds. Js.); 23 L. J., Ch.
68, Lord Langdale gave leave to the de- 553.
fendants to amend a clerical error in a (*) In Rump v. Greenhill, 1 Jur. N. S.
demurrer, the time for demurring not 123, R.; 20 Beav. 512; it was held, that
having expired. A demurrer should spe- upon the argument of a demurrer for *
* cify some cause of demurrer, but it must multifariousness, want of equity may be
not introduce a material fact ; in other assigned as cause of demurrer ore tenus.
words, a defence by demurrer must rest But the contrary was decided in Picton v.
entirely upon the objection which the case Lockett, by the Vice-Chancellor of Eng-
made by the bill presents. A statement land, April, 1837, MSS.
in a demurrer, that it appears on the bill (m) It is submitted that this is the cor-
" that the agreement therein alleged to rect form, notwithstanding what is said in
have been entered into is ribt in writing the report of Osborne v. Jullion, 3 Drew,
signed by the defendant," although un- 552; 4 W. R. 663. And see as to form
necessary, does not render the demurrer of plea and demurrer, Barnes v. Taylor,
a speaking one. Wood v. Midgley, 5 Be 4 W. R. 577.
■^fli^ aa/~c^'^-:^V^ 1^ '*' /*« ^-*y »«-''«' -t^^^^ »•- t-^tv ^4^^.f.o^U A^t^ct i>-ty ^i-f- 'i^
44 DEMURRERS.
residue of the original bill of complaint of T. A. P. and J. B.,
plaintiffs.
These defendants, to so much of the plaintiffs' bill, as prays that they
may be decreed to transfer to the said plaintiffs, as the executors of G. M.
in the said bill mentioned, the 21-64th shares of the ship called &c. in
the said bill mentioned, and that the said defendant J. L. may be decreed
to transfer to the plaintiffs the 21-64th shares of the brig or vessel called
&c. in the said bill mentioned, and to so much of the said bill as prays
that an account may be decreed to be taken of all the dealings and trans-
actions between these defendants and the said G. M. with respect or in
relation to the said two vessels, and of all sums of money respectively
received and paid by these defendants and the said G. M. respectively,
or by 'any other person by their or any of their respective order or for
their or any of their use, and that these defendants may be decreed to
pay what should be found due thereon, so far as such dealings and trans-
actions and sums of money or any or either of them relate to or concern
the said 21-64th shares of the said vessel called &c., or the said 21-64th
shares of the said vessel called &c., and the freights or freight or any
shares or share of the freights or freight of such vessels, or either of
them, and to so much of the said bill as prays further or other relief
with respect oi' in relation to the said shares of the said two vessels re-
spectively or the freight thereof respectively.
Cause of Demurrer.'] These defendants do demur and for cause of
demurrer shew, that the said plaintiffs have not made or stated such a
case as entitles them in a court of equity to the relief so prayed for or
any part thereof; and these defendants humbly pray the judgment of the
Court as to such parts of the said bill as they have so demurred to as
aforesaid.
Answer to Residue of Bill. 1 And as to the residue of the said bill,
that is to say, all the discovery, and the rest of the relief, by the said bill
prayed, these defendants for answer thereto severally say they admit it
to be true that Messrs. C. and N. were, in the month of &c., engaged in
building at Liverpool, on their own account, a certain brig or vessel, and
that in the month of &c. these defendants W. L. and J. L. did carry on
business together in partnership as wine merchants and general dealers
&c. &c. (aj).
[x) In this case, the demurrer extended might be the legal owner of a ship while
■ too far, in demurring to the relief sought another person was entitled in equity to
in respect of the freight of the vessels as the freight.* Picton v. Lockett, V. C. E.
well as the transfer of them, and it was April, 1837, MSS. See also Davenport v.
held that, consistently with the law as to Whitmore, 2 My. & Cr. 177 ; Slater v.
tile registration of vessels, one person Willis, 1 Beav. 355 ; Armstrong v. Arm-
DEMUBRERS. 45 ,
64. Demurrer for want of Parties.
■ \Title and commencement as before.]
And for [further] cause of demurrer shew, that there are not proper •"
parties to the said information, and that there is not and are not any person
or persons, party or parties (y) to the said information who represents or
represent, or has or have a common interest with the persons or class of
persons whose interests the said information affects to protect, or for
whom relief is thereby pi-ayed («). Wherefore, &c.
strong, 21 Beav. 78 ; 1 Jur. N. S. 859 ; filed in The Attorney-General v. The Cor-
and The Merchant Shipping Act, 1854 poration qf Poole, 2 Keen, ISO, and on
(ir& 18 Vict 0. 104); afld the 18 & 19 appeal, 4 M. & Cr. 17, where Lord Cot-
Vict c. 91. tenhamheld, that, looking at the informa-
As to form of demurrer and answer, see tion and demurrer together, the parties
Prac. vol. 1, pp. 442 and 472, and the who were not before the Court were sQf-
36th and 37th Orders of August, 1841 ; Kciently pointed out (p. 32). See also the
and as to the time within which a de- observations of his lordship upon the rule
fendant must demur, and as to setting as laid down in Mitf. Fl. 1 80.
down demurrer for argument, see Prac. Where a demurrer is allowed, and leave ^
vol. 1, p. 478, and the 16tli Order of May, given to amend, it would seem that the
1845. defendant only pays the costs of the de-
(t/) If Ihe absent parties are necessary murrer, and not those of the suit, as pre-
fer any part of the relief prayed by the vided for by the 45th Order of May, 1815.
bill, it is an objection on demurrer. Per Hammond v. Messenger, 9 Sim. 238. This
Lord Cottenham, L. C, Penny v. Watts, case was under the 31st Order of April,
2 Phil. 152. 1828, which has been discharged by that
(«) The above demurrer, so far as it of May, 1845.
assigns want of parties, is that which was
^ ^9fe/V^ a*-y -^^-^ ^^-^ ■^ '^/^"^'^ ^ .r.c^/-A^-«^ ^^««ia^.^ ^i.c^^^^
J^:.^e^.Sf^ a^jraw.^^. A^c^f^'c^''^'^. ^i^^^A^Vt.
ri^-«^r»«.
( 46 )
! -/, .UX, t>l!^. i
CHAPTER V.
Pleas.
65. Title and Commencement of PUa.
The plea of defendant \or of defendants] to the
bill of complaint of complainants.
This defendant \or these defendants] (by protestation not acknow-
ledging the matters and things in and by the said bill set forth and
alleged to be true), in such manner and form as the same are thereby
and therein set forth and alleged, doth [or do] plead in bar to the said
bill, and for plea saith [or say], that &c.
&Q. Conclusion,
All which matters and things this defendant doth aver \or these de-
fendants do aver] to be true, and be pleads \or they plead] the same in
bar to the whole of the discovery and relief sought and prayed by the
said complainant's said bill of complaint, and humbly demands [or de-
mand] the judgment of this Honourable Court in respect thereof.
\CounseVs signature,]
67. Plea to Part, and Answer to Residue of Bill.
The plea of defendant [or one of the defendants] to part,
and the answer of the same defendant to the residue of the bill
of complaint of complainant.
This defendant, to all the relief sought by the said bill, and also to all
the discovery thereby sought, except the discovery sought by or in respect
of [so much of the said bill as prays that this defendant may answer and
set forth whether (a) &c.] {here the language of the interrogatories which
it is necessary to answer must be introduced], this defendant does plead
in bar, and for plea saith &c. [here follows the plea].
All which matters and things this defendant does aver to be true, and
(o) Or, which would seem to be more the examination of this defendant, as re-
correct, now that the interrogatories do quire this defendant to answer and set
not form a part'of the bill : — [such of the forth whether, &c.]
interrogatories filed by the plaintiff for
PLEAS. 47
does plead the same in bar to the whole of the said bill, except such part
of the discovery thereby sought as aforesaid ; and this defendant humbly
prays the judgment of this Honourable Court whether he ought to be
compelled to make any furthei' or other answer to so much of the said
bill as is hereby pleaded to, and he prays to be hence dismissed with his
costs.
And for answer to such parts of the said bill as are excepted, this
defendant says, that &c. (b) [here the answer follews]. ^
[Counsel's signature.]
68. Plea for want of Parties.
The plea of &c. to the information of &c., her Majesty's Attorney-
General, at the relation of &c.
These defendants, by protestation for plea to the said information, say,
that A. B., clerk, was at and before the filing of the said information,
and still is, the lawful and oflB.ciating rector of the parish church of
in the said information mentioned, and as such is and .has
always acted as one of the governors of the charities which are in the
information mentioned, jointly with these defendants and the
other defendants in the said information also named ; and that the said »
A. B. is a necessary party to the said information, and ought to be but
is not made a party thereto.
And therefore these defendants do plead the matters aforesaid to the
said present information, and humbly insist that these defendants ought
not to be compelled to make any further or other answer thereto.
(i) See Mitf. PI. pp. 257, 329 ; Prac. As to plea of Statute of Limitations, in
vol. 1, p. 493. case of bill for an account, see Forbes v.
If the bill is demurrable, the defendant Skelton, 8 Sim. 335 ; 19 & 20 Vict. c. 97,
should demur and not plead. Billing v. s. 9 ; Inglis v. Haigh, 8 Mee. & W. 769 ;
Flight, 1 Mad. 230. Cottam v. Partridge, 4 Scott, N. R. 819.
As to plea of stated account and release. In case of bill of foreclosure and plea
If error or fraud is charged by the bill, of 3 & 4 Will. 4, c. 27, a. 40, see Dearman
it must be denied by the plea, as well as v. Wyehe, 9 Sim. 573 j and for form of
answered in support of the plea. See as plea and answer, /*. 579.
to form of plea, Phelps v. Sproule, 1 M. & As to plea iff purchase for valu-able consi-
K. 231 ; Holland v. Sproule, 6 Sim. 623 j deration, see Pennington v. Beechey, 2 Sim.
Parker v.Alcock, 1 Y. & J. 432 ; Attorney- & St. 282 ; Jackson v. Rowe, 5 Russ. 514 j
General v. Brooksbanlt, 1 Y. & J. 439 ,- 2 S. C, 2 Sim. & St. 472 ; Lord Portarling-
Y. & J. 37. ton V. Soulby, 6 Sim. 356.
As to plea of adverse possession : Hard- As to plea being supported by an answer,
man v. Ellames, 5 Sim. 640 ; 2 My. & K. see Prac, vol. 1, p. 502 ; Wigr. Disc. 185 ;
732, Sanders V. King, 6 Mad. 61 ; Emerson v.
As to plea stating descent to heir at law, Harland, 3 Sim. 490 ; 8 Bli. N. S. 62 ; 2
see Wood v. Skelton, 6 Sim. 176. CI. & Fin. 10 ; Foley v. Hill, 3 M. & C.
The Statute of Frauds is generally 475 ; Denys v. Locock, lb. 205.
taken advantage of by demurrer or an- As to pleading double pleas, see Kay v,
swer. Marshall, i Keen. 190,
i <
( 48 )
CHAPTER VI.
Answers.
69. Form of Answer (a).
In Chancery.
A. B Plaintiff,
and
C. D. [and E. F.] . . . . Defendant.
Commencement.'] The answer of C. D., one of the above-named
defendants [or the above-named defendant, as the case may he],
to the bill of complaint [or amended bill of complaint (6)] of
the above-named plaintiff.
In answer to the said bill, I, C. D., say as follows : —
1. I admit that the indenture of the 14th day of May, 1854, in the
plaintiff's bill mentioned, was made and executed between and by the
several parties, and was to the purport and effect in the said bill set forth,
but I crave leave to refer to the said indenture when the same shall be
produced to this Honourable Court (c).
2. I believe that such representations as set forth in the of the
interrogatories to the plaintiff's bill were made by therein men-
tioned.
3. I deny that I did on the day of or at any other time,
state &c.
4. [A statement of circumstances varying from the statement thereof
in the plaintiff's hill.]
(a) As to general nature of answers (J) If the defendant has not previously
and form, see Prac. vol. 1, p. 578. answered the original bill, the term
The answer of a defendant must be in " amended" should not be used,
the first person and divided into para- (c) Prac. vol. 2, pp. 957, 958. As to
graphs, numbered consecutively, each pa- effect of a reference in the answer to a
ragraph containing as nearly as may be a document, with respect to an objection
separate and distinct allegation. 15 & 16 for want of a stamp, see Huddleston v.
Vict c. 86, s. 14; and Orders of 7th of Briscoe, 11 Ves. 583 j Lett v. Sfiirris, 4
August, 1852. Sim. 607. _ .
ANSWERS. 49
6. Save as aforesaid, I deny &c. {here the allegations in the plain-
tiff's bill are denied].
Or
6. Save as aforesaid, I am unable to set forth as to my knowledge,
remembrance, information or belief whether &c.
7. I claim &c. [a statement of the defendant's claim or case.]
\_CounseVs signature.]
Sworn &c. (d).
70. Answer of an Infant.
[Title of cause.]
The answer of A. B., one of the above-named defendants, an
infant under the age of twenty-one years, by ' his
guardian.
In answer to the said bill, I, A. B., by my guardian, say
as follows : —
1. I am an infant under the age of twenty-one years, that is to say, of
the age of years, and I submit my rights and interest in the matters
in question in this cause to the care and protection of this Honourable
Court (e).
[Counsel's signature.]
71. Answer of Adults and Infants.
The joint and several answer of A. B. and C. D., and of E. F. and G. H.,
infants, the above-named defendants [or four of the above-named
defendants], by their guardian.
(d) See forms of Jurats, and Prac. vol. If his case rests on grounds not disclosed
1, p. 588. by the plaintiff's bill, they must be stated
(e) It is not now the practice to pro- in his answer. Powys v. Ifpnsfleld, 6 Sim.
duce the infant in Court upon applying 565 ; Holden v. Hearn, 1 Beav. 445, 455 ;
for the appointment of a guardian ad litem. Lane v. JJardwicke, 9 Beav. 148.
The course is to apply for an order upon As to the course to be pursued by the
a petition presented to the Master of the plaintiff under the 32nd Order of May,
Rolls (supported by an affidavit), which 1845, in case an infant defendant does
is answered at once by his Honor's Secre- not appear or answer, see Prac. vol. 1, p.
tary, and an order will be drawn up by 332. The head of a college in one of
him. See forms of Petition and Affi- the universities at which an infant de-
davit fendant is an undergraduate is the per-
In preparing the answer of an infant, sou under whose care such infant is, for
it is material to bear in mind, tbat the the purpose of service under the Order re-
common ^swer will not be sufficient to ferred to. Christie v. Cameron, 25 L. J.
enable him to make any affirmative case. 488, V. C. W.j 2 Jur. N. S. 635.
60 ANSWERS.
72. In Case of an Insufficient Answer.
The further answer of one of the above-named defendants, to the
bill of complaint of the above-named plaintiff.
73. Further Answer to Original Bill, and Answer to Amended Bill.
The further answer of one &c. to the original bill of complaint
of the above-named plaintiff, and the answer of the said defendant
to the amended bill of complaint of the said plaintiff.
74. Answer to Original Bill and Bill of Revivor and Supplement.
The answer of one &c. to the original bill of complaint of
the above-named plaintiff, and also to the bill of
revivor and supplement of the said plaintiff (/").
In answer to the said original bill, I say as follows &c.
In answer to the said bill of revivor and supplement, I say as follows.
75. Answer of Lunatic and his Committee.
The joint and several answer of A. B., a lunatic, by C. D. his [guar-
dian (^) and] committee, and the said C. D., two of the above-
named defendants, to the bill of complaint of the above-named
plaintiff.
76. Statement in Answer hy Sushand disclaiming any Interest in
legacy bequeathed to his Wife.
I have long been separated from my wife, and I disclaim all right,
title and interest in or to the said legacy or sum of £ so bequeathed
to my said wife A. 8. for her separate use by the will of the said
as in the said bill mentioned, and every part thereof (A).
77. Statement in Answer of a Feme Covert separated from her
Husband.
I have been long separated from by husband, and I humbly submit
that I ought to be allowed all the costs, charges and expenses incurred
(/) See Vigera v. Lord Audley, 9 Sim. to a legacy or sum of money, to which his
408; Upton y. Sou>ton,\2 him. i6; Gran- wife is entitled for her separate use or
ville V. Belts, 17 Sim. 58. otherwise, yet he is a necessary party to
(g) When a guardian ad litem should be a suit to which his wife is defendant ; and
appointed, see Hartland v. Ateherhy, 7 must be kept before the Court notwith-
Beav. 53 j Worth v. Mackenzie, 3 M. & standing his disclaimer. Th^object of
G. 363; and Prac. Vol. 1, pp. 145, 612. the above statement is, that « may ob-
(A) Although a husband has not any tain his costs,
interest in, and does not raise anv claim
ANSWERS. 51
by me in putting in my answer to the said bill of complaint and in othpr
the proceedings in this suit (i).
78. Answer and Disclaimer.
[Title and commencement.]
I have never received any part of the estate or effects of the testator or
in anywise intermeddled therein, and I have never assented to or in any
manner accepted the said devise made to me by the said will jointly with
the said and I have never in any manner consented to become a
trustee of the said will or in any manner acted or interfered in the trusts
thereof; and, in fact, I have at all times refused to accept, and do now
refiise to accept, the office of trustee of the said will ; and I have always
disclaimed, and do hereby disclaim and renounce the said devise made
to me by the said will, and all and singular the estates and property
which could or might pass under or by virtue thereof, and all estate and
interest therein, and also the trusts of the said will and the office or duty
of executing the same (j).
79. Where a Defendant objects to answer -particular Interrogatories.
As to the several interrogatories numbered 18 &c., and as to such of
the other interrogatories [or parts of interrogatories] (if any) as I may
not have answered, I am advised and humbly submit that I am not
bound to answer the same, and I therefore decline to answer the said
interrogatories [and parts of interrogatories]; and I claim the same
benefit of the objection as if I had demurred to the same or to the dis-
covery sought thereby (k).
And I also humbly submit that the plaintiffs are not entitled in this
suit, to the relief sought in and by the 3rd &c. paragraphs of the prayer of
(»■) An order must be obtained for a been registered under the statute of the
married woman to answer separately from 1 & 2 Vict, so as to create an equitable
ber husband. Frac. vol. 1, pp. 139, 349, charge, is not entitled .to his costs, al-
and Addenda, Ixi. See also Lenaghan v. though he disclaims. Ford v. Lord Ches-
Smith, 2 Ph. 537; NiclwU v. Ward, 2 M. terjield, 16 Beav. 516.
& G. 140. (ft) See Prac. vol. 1, p. 587 ; and 38th
The order may be obtained upon a pe- Order of August, 1841, which provides,
tition of course at Bolls, where the hus- " that a defendant may decline to answer
band and wife are living apart, or the any interrogatory, or part of an interro-
husband is out of the jurisdiction, or pro- gatory, from answering which he might
perty is settled to wife's separate use. have protected himself by demurrer."
Prac. vol. 2, p. 1407. See also Bray v. Mason v. Waheman, 2 Ph. 516 ; Swinborne
Altera, 15 Sim. 610. v. Nelson, 16 Beav. 416 ; but see Bates v.
(j) As to disclaimer see Prac. vol. 1, Christ's College, Cambridge, 6 W. Rep.
p. 627. • It seems now to be settled that, 337, where Lord Justice Knight Bruce
in a suit to foreclose, a judgment-creditor held, agreeing with the Court below, that
of the mortgagor, whose judgment has the answer was insufficient.
e2
52 ANSWERS.
the supplemental bill, or for the purposes thereof to have any accounts,
directions or inquiries taken, given or made; and I claim the same
benefit of the objection as if I had demurred to the relief so sought.
80. 'Statement in Answer to prevent Plaintiff from calling for the
Production of Documents in Defendant's Possession,
I have now in my possession or power the several letters, papers and
writings relating to the matters in the bill mentioned, or some of them ;
and I have in the schedule hereto, which I pray may be taken as part
of this my answer, set forth a list or schedule of all the said letters,
papers and writings ; but I deny that thereby or otherwise, if the same
were produced (Z), the truth of the matters in the said bill mentioned, or
any of them, would appear, further or otherwise than as the same is
hereinbefore admitted.
Such of the said letters, papers and writings as are set forth in the first
part of the said schedule, are of great importance to the claim made by
me in my said action, and are or contain the evidence on which I am
advised and intend mainly to rely at the trial of the said action ; and the
said letters, papers and writings, as well those in the second and third
parts, as those in the first part of the said schedule, or any of them, do
not nor does, as I am advised and verily believe, contain any evidence
whatever in support of or tending to support the plaintiff's pleas in the
said action, or any of such pleas, and are not nor is in any manner ma-
terial to the plaintiff's case.
As ip confidential Communication,] Such of the said letters, papers
and writings as are set forth in the second part of the said schedule wei-e
and are private (m) and confidential communications between me and
my solicitors or legal advisers in the ordinary course of professional
business, and all and every of them relate to the matters in dispute be-
tween me and the plaintiff in the said action ; and the jjlaintiff has not,
as I am advised and verily believe, any right or title to the production of,
or any interest whatever in, the letters, papers and writings in the said
schedule mentioned, or any of them.
81. Statement in an Answer, by Mortgagees raising the Defence of
the Statute of Limitations.
The said G. S., deceased, did not, as we severally verily believe, at
{I) SeePeife v.5"; . , verse to the infant."
(/) This IS now an order of course, It is usual, but does not appear to be
without Its being necessary to produce necessary, to state the nature or degree
the infant in Court, but there must be an of relationship between the infant and
amaavit ot the solicitor who has appeared the guardian,
for the infant, that the petitioner is an
PETITIONS. 71
be assigned his guardian, by whom he may [answer the plain-
tiff's bill and] defend this suit.
115. For discharge of Defendant out of Custody of Sheriff or
Messenger.
[Title, ^c]
Sheweth,
That your petitioner has been taken into custody by the sheriff of
[or the messenger attending this Court] for not putting in his answer to
the plaintiff's bill.
That your petitioner hath this day put in his answer to the plaintiff's
bill, as by the record and writ clerk's certificate hereunto annexed ap-
pears.
Your petitioner therefore humbly prays, that he may be discharged
from the custody of the said sheriff of [or from custody]
as touching his said contempt, upon paying or tendering the
costs thereof.
116. By Plaintiff to the Lord Chancellor for Leave to set down
a Plea or Demurrer for Argument.
[Title, ^c]
Sheweth,
That your petitioner exhibited his bill in this Court against the above-
named defendant, and the same is marked for Vice-Chancellor [Wood].
That the defendant filed a plea [or demurrer (^)] thereto on the
day of
Your petitioner therefore humbly prays your Lordship, that the said
plea [or demurrer] may be set down to be argued next after
the pleas and demurrers already appointed for hearing before
Vice-Chancellor [Wood].
And &c.
117. To withdraw a Plea or Demurrer.
[Title, ^c]
Sheweth,
That the plaintiff having exhibited his bill in this Honourable Court
(g) Where a demurrer is filed by a de- wise the demurrer will be considered as
fendant, his solicitor should, on the same allowed. See 46 of the Orders of May,
day, give notice thereof to the solicitor of 1845 j Order of 23rd Feb. 1850.
the plaintiff. 23rd Order of Oct 1842. If the demurrer is only to a part of the
The plaintiff must either set down the bill, the petition to set down the demurrer
demurrer for argument within twelve days should state so. Regulations of Registrars'
after the filing thereof, or obtain and serve Office, 1st of March, 1850 ; and see Prac.
an order for leave to amend the bill upon vol. 1, p. 483.
the solictor of the demurring party, other-
72 PETITIONS.
against your petitioner, your petitioner put in his plea [or demurrer]
thereto, since which your petitioner is advised to make other defence to
the said bill.
Your petitioner therefore humbly prays, that he may be at liberty
-to withdraw his plea [or demurrer] upon payment of costs (h).
And, &c.
118. That a Feme Covert Defendant may answer separate from her-
Husband.
{Title, ^c]
The humble petition of ' wife of the defendant ,
Sheweth,
That the plaintiff has exhibited his bill in this Honourable Court
against your petitioner and her said husband [and others], to which
your petitioner hath appeared.
That your petitioner's said husband is residing at out of the
jurisdiction of this Court [or that your petitioner and her said husband
are living separate and apart from each other, or that the said bill is
filed in respect of your petitioner's separate estate and interest in the
estates (or funds) in question in this cause].
Your petitioner therefore humbly prays, that your petitioner may,
be at liberty to put in her answer to the plaintiff's said bill,
separate from her husband (i).
And, &c.
119. Of a Plaintiff for a Habeas Corpus to bring Defendant in cus-
tody of Sheriff to Bar of the Court to answer his Contem/pt
for not appearing or answering the Plaintiff's Bill.
[Title, ^c]
Sheweth,
. That the plaintiff filed his bill against the defendant to which
he has not appeared or answered.
That an attachment has issued against him at the instance of your
petitioner, upon whicli he has been arrested and now remains in the
custody of the sheriff of [charged with other detainers].
Your petitioner therefore humbly prays, that a writ of habeas corpus
cum causis may issue out of this Honourable Court, directed
to the said sheriff of the county of thereby commanding
him to bring the body of the said into this Honourable
(A) The consent of the plaintiff's soli- (1) Prac. vol. 1, pp. 139, 319 ; Lenagan
citor should be obtained to this petition. v. Smith, 2 Phil. 537.
PETITIONS. 73
Court, on &c., in order that the said. may answer his said
contempt, and be otherwise dealt with according to law {j).
And, &c.
120. To use Depositions in a Cross Cause.
[Title, ^c]
Sheweth,
That the secondly above-mentioned cause is a cross cause touching
the same matters as the first-mentioned cause, and that your petitioner
is advised that the [affidavits and] depositions taken in each' cause [or
taken in the original cause] will be proper to be read in the other [or the
cross cause.]
Your petitioner therefore humbly prays, that the affidavits and depo-
sitions taken in either of these causes [or in the original cause]
may be read and made use of in the other [or the cross cause]
at the hearing of these causes, saving all just exceptions.
121. To change a Solicitor.
[Title, ^c]
Sheweth,
That your petitioner employed of as your petitioneii^s
solicitor in this suit, and your petitioner is now desirous to appoint
of as his solicitor.
Your petitioner therefore humbly prays, that he may be at liberty
to change his solicitor accordingly.
122. To prove Exhibits by Affidavit at the Searing of a Cause.
[Title, i-c]
Sheweth,
That this cause being set down to be heard before your peti-
tioner is advised that it will be necessary for him to prove, at the hearing
thereof, certain letters written by the defendant to of the following
dates, &c., that is to say [state the dates'].
Your petitioner therefore humbly prays, that he may be at liberty
at the hearing of this cause to read an affidavit of or examine
one or more witness or witnesses, vivd voce, to prove the said
defendant's handwriting to the said letters.
U) See Prac. vol. 1, pp. 329, 341.
74 PETITIONS.
123. For a Plaintiff to dismiss his Bill with Costs.
[Title, ^c]
Sheweth,
That your petitioner having exhibited his bill in this Honourable
Court against the above-named defendant, who has appeared [and put
in his answer] thereto, your petitioner is now advised to dismiss his said
bill.
Your petitioner therefore humbly prays, that the said bill may
stand dismissed out of this Court, with costs to be taxed by the
proper taxing master (A).
124. To enter a Decree or Order nunc pro tunc.
[Title, ^c]
Sheweth,
That the decree [or order] made in this cause, bearing date &c., has
been drawn up and passed by the registrar, but the time for entering the
same, according to the rules of this Court, being elapsed.
Your petitioner humbly prays, that the said decree [or order] may
be entered nunc pro tunc.
And, &c.
125. To discharge Distringas on Stock.
A. B Plaintiff,
and
The Governor and Company of the
Bank of England Defendants.
To&c.
The humble petition of &c.
Sheweth,
That on &c. a writ of distringas was issued at the instance of your
petitioner (Z) against the defendants to prevent the sale or transfer of
£ [describe the stocK] standing in the books of the above-named
defendants in the name of of &c.
That the purpose for which the said writ of distringas was issued
having been satisfied, your petitioner is desirous of having the same
discharged.
Your petitioner therefore humbly prays, that the said writ of dis-
tringas may be discharged accordingly.
(ft) This is of course before decree ; made to stay the furtlier prosecution of
after decree, a, special application must be the suit.
(0 Prac. vol. 2, p. 1270.
PETITIONS. 75
126. For a Solicitor to deliver his Bill of Costs, and that it may he
taxed.
[Title of cause, if there has been any suit, if not, the title should 6e]
" In the matter of one of the solicitors of this Court."
Sheweth,
That your petitioner employed one of the solicitors of this
Court, to prosecute this suit and [divers suits at law], and in other
matters, as your petitioner's solicitor and attorney \or if no suit, say, in
various matters of business for him] between the month of 185
and the month of 185 .
That your petitioner js desirous of obtaining the papers in the pos-
session of the said belonging to your petitioner, but the said
refuses to deliver up the same until his biU of costs is paid.
That the said although applied to for that purpose, has not
delivered his bill of costs against your petitioner.
Your petitioner therefore humbly prays, that upon your petitioner
submitting to pay the said what shall appear to be
due to him upon taxation of the said bill, that the said
may be ordered, in a fortnight after notice hereof, to deliver to
your petitioner his bill of all such fees and disbursements as he
claims to be due to him from your petitioner : And that it may
be referred to the taxing master in rotation of this Court, to
tax and settle such bill ; and that your petitioner and the said
may produce before the said master, upon oath, as the
said master shall direct, all books, papers and writings in their
custody or power respectively relating to such bill, or any of the
items or charges therein ; and that your petitioner and the said
may be examined upon interrogatories or otherwise touch-
ing the same or any of them, as the said master shall direct ; and
that all other proper and usual directions may be given (wi).
127. To tax a Solicitor's Bill delivered.
[Title or matter.']
Sheweth,
That your petitioner employed Mr. one of the solicitors of
this Honourable Court, to prosecute this suit, and to defend divers other
suits [or in certain conveyancing business and other matters], as your
petitioner's attorney and solicitor.
That the said Mr. on the day of delivered unto
your petitioner a bill of his fees and disbursements, which, as your peti-
(m) See Prac. vol. 2, pp. 1351, 1361.
76 PETITIONS.
tioner is advised, contains many unreasonable and extravagant charges;
and the said Mr. threatens to proceed at law against your peti-
tioner to recover the same.
Your petitioner therefore humbly prays, that upon your petitioner's
submitting to pay to the said Mr. "what shall be due
to him on the taxation of his said bill, it may be referred to the
taxing master of this Court in rotation, to tax the same ; and
that the said Mr. may produce before the said master
upon oath, as he shall direct, all books, papers, vouchers; ac-
counts and writings in his custody or power relating to the said
bill, or to any of the items or charges therein ; and that all other
usual and proper directions may be given; and that no pro-
ceedings at law or otherwise may be commenced by the said
Mr. against your petitioner in respect of the said bill of
costs pending the reference for taxation.
Section 2.
128. Petition for Trantfer of a Fund to a Person becoming entitled on
the Death of the Tenant for Life,
In Chancery.
Lord Chancellor.
Vice-Chancellor
{or The Master of the Rolls.]
Between Plaintiff.
and
A. B., C. D., E. F., &c. . Defendants.
To the Right Honourable the Lord High Chancellor of Great
Britain [or To the Right Honourable the Master of the Rolls].
The humble petition of the above-named plaintiff [or of
the defendant or of A. B. of &c'.]
[Introductory statements shewing the title of the petitioner."]
That Bank £3 per Cent. Annuities and £ Reduced
Annuities are respectively, standing in the name of the Accountant-
General of this Court on the credit of this cause, [to an account intituled
" " (»)], and there is the sum oi £ cash in the Bank on
(») It the fund has heen carried to the generally necessary to set out the will or
separate account of the petitioner in pur- instrument under which he claims,
suance of a decree or order, it is not If, however, there has been no declara-
PETITIONS. 77
the like credit [and to the like account], which sum of cash has accrued
in respect of the last [July] dividend on the said Bank Annuities.
That your petitioner attained his age of twenty-one years on the
day of he having been born on the day of [as appears
ly the chief clerk's certificate in this cause, dated ^c], and he thereupon
became absolutely entitled to the said funds [or that the said (the tenant
for life) died on the day of whereupon your petitioner
became absolutely entitled to the said funds].
That £ is the apportioned sum or amount (o) in respect of the
dividend on the said Bank Annuities for the current half-year expiring
on which sum is payable to the legal personal representative of the
said [the tenant for life^.
Your petitioner therefore humbly prays, that the costs of your peti-
tioner, as between solicitor and client, and the costs of all other
proper parties of this application and consequent thereon, may
be taxed by the proper taxing master ; and that so much of the
said £ Bank £2 per Cent. Annuities standing in the name
of the Accountant-General on the credit of this cause, as with
the said £ cash in the Bank on the like credit will raise
the said costs when taxed [and the duty payable on the funds
in Court], (the amount thereof to be verified by affidavit), [and
also the said sum of £ J, may be sold.
That the residue of the said Bank Annuities, and any interest to ac-
crue due on the said Annuities previously to the transfer thereof,
and also the Reduced Annuities standing in the name of
the said Accountant-General on the credit of this cause, may
be respectively transferred and paid to your petitioner, or that
your Lordship [or Honor] will make such further or other
tion of the petitioner's right, or if the to a separate account, should consider
fund has not been carried over to his whether an order can be obtained by sum-
separate account, the petitioner should mons at chambers ; for by the first sec-
state the will or other instrument under tion of the Orders of the 12th of Novem-
which his title arises, and the facts which her, 1856, an application for payment of
have occurred, to show that the previous dividends of any stock carried to a sepa-
interests have determined. rate account, can be generally obtained
(o) See statute 4 & 5 Will. 4, c. 22, for by an order made at chambers, although
the apportionment of rents, annuities and the amount exceeds 300^., and it seems
other periodical payments. See also Knight that under the discretion given by the 26th
\. Boughton, 12 Beav. 312; and the cases section of the 15 & 16 Vict. c. 80, the
mentioned in the note p. 317 ; and Fletcher judges entertain applications for payment
V. Moore, 3 Jur. N. S. 458, V. C. K. of capital sums or funds standing to a
The practitioner, before presenting a separate account. See Prac. vol. 2, p.
petition for the transfer or payment out of 1420. See also Knight v. Knight, 16
Court, of a (and or sum of money carried Beav. 538 j and 3 Jur. N. S. 432.
78 PETITIONS.
order in the premises as the circumstances of the case may
require.
129. Petition for charging Order.
That the shares to which the said and are respec-
tively entitled in the Bank £Z per Cent. Annuities standing in
the name of the Accountant-General of this Court in trust in this cause
may be charged with the payment to your petitioner of the said principal
sum of ^ and interest thereon, unless they shall within seven days
after service of the order to be made on this petition shew good cause to
the contrary j and that in the meantime no part or parts of the said re-
spective shares of the said and of the said £ Bank £^
per Cent. Annuities so standing in the name of the said Accountant-
General as aforesaid, or any interest to accrue due in respect thereof,
may be transferred, sold, paid out or otherwise disposed of (p).
130. Prayer in Petition seeking Re-transfer of Stock transferred to
the Commissioners for the. Reduction of the National Debt.
Your petitioner therefore humbly prays, that upon payment by your
petitioner of the costs of her Majesty's Attorney-General, and the
Commissioners for the Reduction of the National Debt, of this
petition, to be taxed by the proper taxing master, the accountant-
general or secretary for the time being of the Governor and Com-
pany of the Bank of England may be directed to transfer the £
Bank £2 per Cent Annuities which was so standing in the name of
the said and afterwards transferred to the Commissioners for
the Reduction of the National Debt, from the account of the said
Commissioners into the name of your petitioner; and that the said
accountant-general or secretrary for the time being may also be
directed to receive the dividends which accrued due previous to the
transfer, and which have since accrued due and may accrue due
previously to the transfer hereby prayed, and on receipt thereof may
pay the same to your petitioner (17); or &c.
{p) As to stop orders simply, if the Kay, 470; Watts -v. Jejferyes, Z t/i. & Gat.
application is made on behalf of the as- 372 ; Wells v. Gibbs, 22 Beav. 205.
signor and assignee, they can be obtained (j) Prac. vol. 2, p. 1377 ; Seton, 670 ;
at chambers. Prac. vol. 2, p. 1275. 56 Geo. 3, c. 60 ; and 8 & 9 Vict. c. 62. '
As to charging orders, see Prac. vol. 2, The solicitors for the Attorney-General
p. 1277; Seton, 498; 1 & 2 Vict c. 110; and Commissioners for the Reduction of
and 3 & 4 Vict. t. 82 ; Warburton v. Hill, the National Debt must be served with
PETITIONS.
79
131. Petition upon an intended Marriage with an Infant Ward of
the Court.
[Title, ^c]
The humble petition of of
Sheweth,
That your petitioner hath made proposals of marriage to the plaintiff
[or defendant A. B.], and she hath, with the consent of wha is
her father and guardian, acceded to such proposals.
That the said is a ward of this Court.
Your petitioner therefore humbly prays, that this petition may be
referred to the^hambers of his Honor Vice-Chancellor
the judge to whom this cause is attached, to inquire whether
the marriage proposed between your petitioner and the said
is a fit and proper marriage for the said ; and
that if the said maniage should be approved of, then that your
petitioner may be at liberty to lay proposals before his Honor
at chambers for a settlement previous to the said marriage ; and
that in case such proposal should be approved of, that a proper
settlement in accordance therewith may be prepared, and that
upon the due execution thereof by all proper parties your pe-
titioner may be at liberty to intermarry with the said A. B. (r).
copies of the petition, and their costs as
between party and party must be paid by
the petitioner. Ex parte Holland, 1 Ph.
379. See also Ex parte Ram, 3 M. & Cr.
25 ; Hant -i. Peacock, 6 Hare, 361.
(r) The filing of a bill makes an infant
a ward of the Court of Chancery. Butler
V. Freeman, Arab. 301, 302 j Sallea v. Sa-
vignon, 6 Ves. 572. And so, if upon peti-
tion or summons, an order has been made
in a summary manner appointing a guar-
dian of an infant's person and property,
the Court is entitled to exercise a control
over the marriage of the infant.
If there is ground to believe that an in-
£int ward contemplates an improper or un-
suitable marriage, the Court upon an affi-
davit of the facts will make an order re-
straining all intercourse, personal as well
as by letters, with the infant See form of
order, Seton on Decrees, p. 369.
The Court retains jurisdiction over the
property of a ward after attaining twenty-
one, salong as the fund remains in Court,
and if the ward marries after attaining
twenty-one it will not part with the fund
without being satisfied that the settle-
ment, if any, was a proper one, and will
if necessary reform it and order a proper
settlement to be made. Austen v. Hahey,
2 Sim. & Stu. 123, note a ; Long v. Long,
2 Sim. & Stu. 119; Money v. Money, 3'
Drew. 256 ; 24 L. J., Ch. 684 ; Martin V.
Foster, 1 Jur. N. S. 337; 24 L. J., Ch.
519, Lds. Js.
Except under the provisions of the 18
& 19 Vict. c. 43, the Court has no power
to bind the heir at law of an infant ward
by a settlement or articles for a settle-
ment executed when the ward is under
age; FieW v. Jl/oore, 19 Beav. 176; 2 Jur.
N. S. 145 ; 26 L. J., Ch. 66, Lds. Js. ; nor
can the infant be bound by a settlement
as to her,reversionary property, choses
in action, and property settled for her
separate use, Simson v. Jones, 2 R. &
My. 365 ; Johnson v. Johnson, 1 Keene,
648; Hastings v. Orde, 11 Sim. 205; El-
lison V. Elwin, 13 Sim. 309 ; Ashton v.
M'Dougall, 5 Beav. 56 ; Borton v. Borton,
16 Sim. 652. The terms of the settle-
ment must, in cases where the marriage
80 PETITIONS.
132. Petition under the Infant Settlement Act, where the Infant is
not a Ward of Court.
Lord Chancellor.
Vice-Chancellor
In the matter of E. H. F. an infant, and of an act passed in
the session holden in the 18th and 19th years of her present
Majesty, intitjiled " An Act to enable Infants, with the
approbation of the Court of Chancery, to make binding
Settlements of their Real and Personal Estate on Mar-
■ riage."
To&c.
The humble petition of an infant, by her father
and next friend.
Sheweth,
That your petitioner is of the age of nineteen years.
That under the will of &c. she is, or will be upon her marriage, en-
titled to £ Bank ^3 per Cent. Annuities standing in the names of
&c., subject to the life interest of her father therein.
That she has, with the consent of her father, accepted proposals of
marriage from of
That she is desirous upon the occasion of her marriage, of making a
settlement of her said reversionary property with the sanction of this
Court.
Your petitioner therefore humbly prays, that a proper settlement
may accordingly be made of the reversionary interest of your
petitioner in the said £ Bank £3 per Cent. Annuities with
the sanction of the judge to whose court this petition is attached ;
and that upon such settlement being approved of by the said
judge your petitioner may be at liberty upon or in contempla-
tion of her marriage with the said to execute the same (s).
And &c.
is a proper one, depend upon the respec- almo-t invariable modern practice in the
tive fortunes of the parties. case of a marriage of a female ward of
Generally the first life interest in the Court, was to exclude the husband alto-
wife's property is settled upon her for her gether from any interest in her property :
separate use without power of anticipa- see also Kent v. Burgess, 11 Sim. 361:
tion, the husband taking the first life in- but unless in a very gross case a power is
terest in his own property, and a power is given to the wife by will to appoint a life
given to the wife in case of a second mar- interest in the fund, or a portion of it, to
riage to give a portion of the capital of the husband. See Birliett v. Hibbert, 3 M.
the property for the benefit of the chil- & K. 227—230.
dren, if any, of such marriage. (s) By the 18 & 19 Vict. c. 4'3, it is
In Wade v. Hopkinsoti, 19 Beav. 613, enacted, that every infant, being a male,
the Master of the Rolls observed, that the not under the age of twenty years, and if
PETITIONS.
81
133. Prayer in Petition, by a Mother of Infant Children, for access
to them.
[The petition should be entitled in the viatter of the 2nd and 3rd of
Vict. c. 54, and of the infants, and the petitioner should petition by her
next friend.']
Prayer.
Your petitioner (i) humbly prays your Lordship [or your Honor],
that [the father, guardian or other person having the custody
of the infants] may be ordered to deliver to your petitioner the
said infants and , being respectively under the age
of seven years ; and to permit them to remain in the custody of
your petitioner until they shall attain their respective ages of
seven years, subject nevertheless to such regulations as to your
Lordship [or your Honor] may appear convenient and ji!lfct.
And that your petitioner may have access to the said infants
and on &c. [state the times or seasons when the peti-
tioner desires to have access to the children, being m,ore than
seven years of age], or at such other times and subject to such
regulations as to your Lordship [or Honor] may seem conve-
nient and just.
a female not being under seventeen years,
may in contemplation of his or her mar-
riage, with the sanction of the Court of
Chancery, make a valid settlement of his
or her property, or property over which
he or she has any power of appointment,
whether real or personal, or whether in
possession or reversion ; and that every
conveyance " of such real or personal es-
tate executed by such infant with the ap-
probation of the Court, for the purpose of
giving effect to such settlement, shall be
as valid and effectual, as if the person
executing the same were of the fiill age
of twenty-one years. But that enact-
ment does not extend to powers of which
it is declared that they shall not be ex-
ercised by an infant, and this sanction
may be given upon petition, presented by
tlie infant or his or her guardian in a
summary way j and if there be no guar-
dian, the Court may require a guardian
to be appointed or not, as it shall think
fit, and may also require any persons
interested or appearing to be interested in
the property to be served with notice of
such petition.
Upon this petition being mentioned to
the Court, it will be referred to the Judge's
Chambers ; and if the matter he urgent
and the settlement has been prepared, the
Judge or his chief clerk will peruse the
settlement, and, if proper, approve of it.
The application under the act does not,
as it would seem, make the infant a ward
of Court, or render it incumbent upon the
Court to inquire into the propriety of the
marriage j but of course, as was observed
by the Lord Chancellor in Re Dalton, 6
De G., M. & G. 201 ; 25 L. J. N. S. 751,
752, it would often be necessary to take
the circumstances of the parties into con-
sideration, in order to see what would be
a proper settlement.
In practice it is usual, in applications
under this act, for the petitioner to be
prepared with an affidavit of the consent
of the father or guardian. See In re Strong,
2 Jur. N. S. 1241 j 26 L. J. Ch. 64.
(*) Prac. vol. 2, p. 977 ; In re Taylor,
11 Sim. 178; Ex parte Bartlett, 2 Coll.
661. See also Re Fynn, 2 De G. & Sm.
407 i and as to the jurisdiction of the
Court to interfere with the legal right or
control of the father, see In re Spence, 2
Ph. 247 ! IVarde v. Warde, 2 Ph. 786 ;
Anon., 2 Sim. N. S. 54.
a
82 PETITIONS.
134. Petition of Rehearing and Appeal to the Lord Chancellor or
Lords Justices.
{Title of causes.']
To the Right Honourable (u) the Lord High Chancellor of Great
Britain,
The humble petition of the above-named Plaintiff B. E. of &c.
Sheweth,
1. That by the decree dated &c., made by His Honor Vice-Chancellor
Kindersley in the first-mentioned cause, it was ordered that &c.
2. That after the said first-mentioned cause had been set down for
hearing, but before the same came on to be heard, the said defendants,
the executors and devisees in trust of the will of the said testatrix, and
the said S. E. and also J. S., filed a special case in this Court,.in which
they *rayed the opinion of the Court whether the appointment made by
the said, testatrix A. E. by her said will &c. was or was not a good and
valid disposition in fee simple of the estate called &c.
3. That the said special case came on to be heard before His Honor
Vice-Chancellor Kindersley on &c., and His Honor, by a decree or
order dated &c., declared that the appointment purporting to be made by
the said testatrix A. E. by her said will &c. was not a good or valid dis-
position of the said estate &c.
4. That the said first-mentioned cause came on for hearing before His
Honor Vice-Chancellor Kindersley for further directions, together with
a petition which had been presented therein to your Lordship by the said
J. 8., and with the said special case.
5. That an order was made by Vice-Chancellor Kindei-sley on &c.,
whereby it was declared that the said testatrix A. E. had not at the date
of her will any power to appoint by will the estate called &c.
6. That the said order of His Honor, V. C. K., dated &c., is, as your,
petitioner is advised and humbly submits, erroneous, and the same ought
to be reversed, and the said order of the day of , so far as it
declares that the said testatrix had not at the date of her will any power
to appoint by will the estate called &c., and so far as any other of the
directions contained in the said order are or may be inconsistent with the
declaration which your petitioner submits ought to have been made with
respect to the validity of the said will of the said testatrix A. E. is erro-
neous, and ought to be reversed.
"Your petitioner therefore humbly prays your Lordship, that the said
first-mentioned cause may be reheard before your Lordship for
(a) A petition of appeal is addressed be heard before the full Court of Appeal,
to the Lord Chancellor, although it may or before the Lords Justices.
PETITIONS. 83
further directions on the Master's General Report, and that the
said special case in the said second-mentioned cause and the
said petition of the said J. 8. may also be respectively reheard
before your Lordship ; and that the said order of the
day of made by His Honor Vice-Chancellor Kindersley
[on hearing the said special case may be reversed, and that the
said order of the said Vice-Chancellor, dated &c., made on the-
rehearing the said special case and hearing the said firstrmen-
tioned cause for further directions on the Master's Report, and
the said petition of the said J. S.], may be reversed or varied,
and that it may be declared that the said will of the said tes-
tatrix A. E., dated &c., was a due exercise of the power of ap-
pointment reserved to the said testatrix in respect of the said
estate &c., and that such directions in the said order of &c. as
are inconsistent with these declarations may be reversed or
varied so as to give effect to such declarations respectively,
[and that the said petition of the said J. 8. may be dismissed,]
or that the said order may be altered or varied in such manner,
or that such other order may be made, as to your Lordship may
seem meet and the circumstances of the case may require. And
your petitioner will ever pray &c.
We humbly conceive that the special case and petition in the above
petition mentioned or referred to, and the first-mentioned cause touching
the matters in this petition mentioned, are respectively proper to be re-
heard before your Lordship if your Lordship shall think fit (x).
[Names of counsel] A. B.
CD.
(x) Prac. vol. 2, pp. 1110—1119. By that it would be "just and expedient" to
the first of the General Orders of the permit the rehearing, then the Court is at
7th of 'August, 1852, concerning appeals, liberty to dispense with the order referred
it is directed, that no appeal from any to.
decree, order or dismission, or any re- The effect of a petition of rehearing is,
hearing of the case on which such decree, that the decree or order complained of is
order or dismission is founded, shall be to be upheld, reversed or altered accord-
allowed, unless the same is set down for ing to the circumstances, as they stood at
hearing and the requisite notice thereof the time when the decree or order was
duly served within five years from the pronounced. Circumstances which have
date of any such decree, order or dismis- subsequently occurred cannot be taken
sion respectively. into account. Where, therefore, those
Applications for rehearing after the ex- circumstances raise important questions,
piration of five years should not be made the Court will not give leave to present a
ex parte, Brandon v. Brandon, 2 Jur. N. S. petition of rehearing until it has had the
981 ; 25 L. J. Ch. 896. opportunity of seeing what weight is due
If, however, the circumstances of the to those circumstances. Hague v. Barton,
case are such as to lead the Court to think 26 L. J. 225, Ld. Chancellor and Lds. Js,
g2
84 PETITIONS.
135. Petition for leave to appeal to the Souse of Lords in Formd
Pauperis.
In the Ilouse of Lords.
I. J. S Appellant,
and
B. E. and others . . Respondents.
To the Right Honourable the Lords Spiritual and Temporal in
Parliament assembled,
The humble petition of I. J. S., of &c., the above-named
appellant,
Sheweth,
That on ,&c. your petitioner, by and under the advice of counsel
learned in the law, intends to present to your Lordships a petition of ap-
peal against the decree or decretal order of the Right Honourable the
Lords Justices of Appeal in a certain suit in the High Court of Chancepy
wherein the above-named B. E. was plaintiff and J. E. &c. were de-
fendants.
That your petitioner being very poor, as by affidavit and certificate
annexed appears, is, by reason of such his poverty, unable to prosecute
such appeal unless he is by your Lordships ordered to be admitted so to
do in formd pauperis.
Your petitioner therefore humbly prays that your Lordships will
be pleased to order him to be admitted to prosecute his said
appeal in formd pauperis, and to assign him for his counsel
J, W. G., Esq., and for his solicitor Mr. C. N. C.
And your petitioner will ever pray &c.
[^Signature of petitioner"] I. J. S.
Although a cause has heen reheard be- ordinary manner,
fore the Vice-Chancellor to whose Court If a defendant appeals from the whole
it is attached, it may be reheard before of such a decree, the plaintiff opens the
the Court of Appeal. Mayherry v. Brook- case before the Court of Appeal, as upon
ing, 2 Jur. N. S. 76, Lds. Js. ; 25 L. J. 87. petitions of appeal. Trustees of Birken-
An appeal from a decree made upon head Docks v. Laird, 4 De G., M. & G.
notice of motion is made by notice of mo- 732. And the plaintiff has been held to
tion to reverse or vary the decree, upon be entitled to begin, where he has ap-
which occasion no deposit is paid, as in pealed from the whole of a decree, except
the case of a petition of appeal against a as to costs. Senhouse v. Hall, 2 Eq. R.
decree, where the cause is set down in the ' 483, Lds. Js.
♦ PETITIONS. 85
136. Petition of Appeal to the House of Lords.
To the Eight Honourable the Lords Spiritual and Temporal in
Parliament assembled,
The humble petition and appeal of M. D. of &c.
Sheweth,
That your petitioner M. D. exhibited his original bill of complaint in
her Majesty's High Court of Chancery in England on the day of
, against C. D. and E. F., defendants thereto, thereby stating
[here set forth substance of bill].
That the said defendants appeared to the said bill, and the defendant
C. D. put in his answer fhereto.
That on the day of , 1856, your petitioner served on the
defendants the usual notice of motion for a decree, whereby the cause was
put in issue, and certain admissions were agreed upon between the par-
ties, and certain affidavits were filed on behalf of the plaintiff, but no
evidence was gone into on the part of the defendants.
That the said cause came on to be heard before the Honourable Sir
John Stuart, one of the Vice-Chancellors of the said Court of Chancery,
and by the decree or decretal order thereupon made, and dated &c., it
was ordered that the plaintiff's bill should stand dismissed out of the said
Court with costs, as by the said bill, answer, decree and proceedings now
of record in that Honourable Court, and to which your petitioner craves
leave to refer, doth and may appear.
That your petitioner being dissatisfied with the said decree was desirous
that the said cause should be reheard in the said Court, and your pe-
titioner caused a petition thereof for hearing to be prepared, but before
such petition was presented, and on &c., the said C. D. procured the said
decree to be duly signed and enrolled in the said Court of Chancery.
That your petitioner is advised that the said decree or decretal order is
erroneous and not agreeable to equity or justice, and your petitioner
therefore humbly appeals therefrom to your Lordships.
Your petitioner therefore humbly prays, that your Lordships will be
pleased to order the said C. D. and E. F. to put in their
answers to this your petitioner's appeal, by a day to be ap-
pointed, and that service of your Lordship's order upon the
respective solicitors of the said C. D. &c. in the said cause may
be deemed good service; and that your Lordships, upon hear-
ing the merits of the said cause, will be pleased to reverse or
vary the decree or decretal order in the said cause, or grant to
86 PETITIONS.
your petitioner such other and further relief in the premises as
to your Lordships in your great wisdom shall seem meet (y).
And your petitioner -will ever pray &o.
J. B.
G.J.
We humbly certify that in our judgment there is reasonable cause of
appeal.
[Signatures of counsel] J. B.
G.J.
137. Petition of Might.
In the matter of Robson, 2 Ph. 84.
To the Queen's most excellent Majesty, most humbly beseeching,
Your faithful subjects A. B. of &c. and C. D. of &c.
Shew unto your Majesty,
That &c. [here the facts are stated which are considered to entitle the
petitioners to relief] ; all and singular which matters by your suppliants
in their present petition alleged, your suppliants are ready to verify by
such ways and means as shall seem meet, and when and where it shall
behove them.
Therefore may it please your Majesty for your royal zeal to justice,
and in your royal regard of charity, most graciously to con-
sider the premises, and to order that right and justice may be
done unto your said liege suppliants in this behalf; and that
after such due and lawful investigation and trial of the right and
title of your suppliants as shall be necessary in the premises, to
order that the said trust funds, &c. may be paid and restored to
your suppliants A. B. and C. D. as such next of kin to the
said E. F. as aforesaid.
And for the purposes aforesaid your suppliants most humbly pray
your Majesty, that your Majesty will be graciously pleased to
indorse upon this their petition of right your royal declaration
and order to such effect as your Majesty shall be pleased to deem
necessary in that behalf, and if necessary to authorize and em-
power your suppliants by such your royal declaration and order
(y) Prac. vol. 2, p. 1133. Before a pe- of the 7th of August, 1852, concerning ap-
tition of appeal to the House of Lords peals, and notice of the intention to ap-
can be presented, the decree or order ap- peal should, previously to the presenting
pealed against must be enrolled, which the petition, be served on the solicitors
should be done within six calendar months for the respondents. See form of certifi-
after the decree or order shall have been cate of service of such notice, i^fra.
pronounced or made, 2nd qf the Orders
PETITIONS. 87
in that behalf to commence and prosecute such proceeding or
proceedings for the better investigation and trial of their said
claims, and at such times, in such courts and after such manner
as the nature of their said claims shall be found to require, and
as your Majesty shall be gi-aciously pleased to direct ; and that
your suppliants may have and obtain from your Majesty such
further and other relief in the premises as under all the circum-
stances hereinbefore appearing shall be by your Majesty deemed
just and right. And your suppliants, as in duty bounden unto
your Majesty, shall ever pray &c. (»).
A. B.
I's dffnature.] , C. D.
138. Petition under Railway Act for obtaining Compensation Money
out of Court.
In Chancery.
Lord Chancellor.
Vice-Chancellor
In the matter of the estate of Sir J. C. deceased,
and of the Vale of Towy Railway Act, 1854,
and of the Lands Clauses Consolidation Act,
1845.
To&c.
The humble petition of &c. [the devisees in trust for sale, tenant
for life and mortgagees.l
Sheweth,
That A. B., late of &c., deceased, was at the time of the mortgage
security next hereinafter stated seised to him and his heirs in fee simple
of a farm &c., situate &c.
By an indenture dated &c. [mortgage hy A, B. to C. D. and E. F.I
The said A. B. duly made and executed his will, dated &c., and thereby
gave and devised all his real estates to the use of &c. ; and in the said
will is contained a power authorizing his trustees or trustee, at the re-
quest in writing of his the testator's daughter during her lifetime, to
dispose of by absolute sale of the said real estates or any part thereof.
The testator died on &c. without having altered or revoked his said
(«) Prac. vol. 1, p. 123. See also Vis- 85; Mmcktm v. The Attorney-General, 2
count Canterbury v. The Attorney-General, Mac. & G. 402.
1 Ph. 306 i In re Baron de Bode, 2 Phill.
88 PETITIONS.
■will, and the same has been duly proved by the executors thereof in the
Prerogative Court of Canterbury.
There has not been any issue of the marriage between your petitioners
Sir J. H. and Dame M. A. his wife.
By an indenture dated &c. the before-mentioned principal sum of
£ together with the interest payable in respect thereof, was assigned
to and now is absolutely vested in your petitioners W. B. D. and A. P.,
and the said mortgaged estate called &c. was granted and released unto
and to the use of your said petitioners and their heirs for the purpose of
securing the repayment of the said principal money and interest.
The said railway company having, for the purposes of their railway,
required three pieces or parcels of land distinguished as numbers 107,
108 and 109 in the book of reference deposited with the clerk of the
peace for the county of Carmarthen, and forming part of the before-
mentioned estate, on &c. paid into the Bank, in the name and with the
privity of the Accountant-General of this Honourable Court, to the
credit of your petitioner Sir J. H., the sum of ;£ by way of security
for the purchase-money and compensation to be paid and made by the
said company in respect of the said land and the taking thereof; and the
said company and two sufficient sureties entered into the usual bond to
the said Sir J. H. for payment of the purchase-money and compensation
for and in respect of the said land.
Subsequently to the time when the said sum of £ was so paid
into the Bank by the said railway company as aforesaid, it was agreed
by and between the said Sir J. H. (acting on behalf of your other peti-
tioners) and the said railway company that the said company should pay
the further sum of £ making with the said £ the sum of
£ as the purchase-money and compensation for the said land so
taken by the said railway company as aforesaid, and that the said sum of
£ should be deposited by the said railway company in the bank-
ing house of &c. in the names of &c.
The said sum of &c. so paid into the Bank as aforesaid is now standing
in the name of the Accountant-General of this Honourable Court, to
the credit " Ex parte The Vale of Towy Railway Company-^The ac-
count of Sir J. H., Bart."
The principal sum of £ is still due and owing upon the before-
mentioned mortgage securities.
Under the circumstances herein appearing, your petitioners are desirous
that the said sum of £ should be paid to your petitioners W. B. D.
and A. P. as such mortgagees as aforesaid, in part satisfaction and dis-
PETITIONS. 89
charge of the mortgage money owing to them upon their said mortgage
securities.
Your petitioners therefore humbly pray your Lordship, that the said
sum of £ cash in the Bank on the credit Ex parte &c.— The
account &c. may be paid to your petitioners W. B. D. and A. P.
in part satisfaction and discharge of the money owing to them
upon their before-mentioned mortgage securities ; and that the
costs of your petitioners (including all reasonable charges and
expenses incident thereto) of the taking and purchase of the
befoi-e-mentioned pieces or parcels of land, or which have been
incurred by them respectively in consequence thereof, and of
and attending -this application and all proceedings relating
thereto, may be taxed by the proper taxing master, and that
such costs, charges and expenses may be paid to your peti-
tioners by the said railway company (a), or that &c.
Petitions under Ti'ustee Relief Act.
Preliminary Ohservations.'] All petitions presented and affidavits
filed under the Trustee Relief Act, should be entitled, In the matter of the
Trustee Relief Act and in the matter of the particular trust : See 8th of
the Orders of the 10th of June, 1848.
The petition should state the instrument under or by which the trust
is created and the facts and circumstances which show the title or interest
of the petitioner, and should also set out such of the statements in the
affidavit on which the payment was made into Court as show the diffi-
culty which occasioned the payment into Court, and who are the parties
that claim or are interested ; but notwithstanding what was observed in
the cases of In re Levetlfs Trust, 5 De G. & Sm. 619, and In re Flack's
Trust, 10 Hare, App. 30, it is not necessary to set forth all the statements
in the affidavit, unless they should be otherwise necessary to enable the
Court to arrive at a correct conclusion as to the rights of the parties. In
re Courtois' Trust, 10 Hare, App. 64.
(o) Prac. vol. 2, p. 1348. As to the longing to a perpetual curacy, and an order
costs to be paid by the railway company, was made for investment of the purchase -
see Consolidation Act, 8 & 9 Vict. c. 18, money, and for payment of the dividends
s. 80. to the incumbent and his successors, the
As to costs payable by the company in incumbents for the time being, on a
case of incumbrances, see Ex parte Cor- change in the incumbency; It was held
poration of Sheffield, 21 Beav. 162; 2 Jur. that the company was liable to pay to the
N. S. 31 ; Dixon v. Jackson, 25 L. J. 588, new incumbent his charges and expenses
V. C. K.; In re Nash, 25 L. J. 20, V. C. S. ; of obtaining payment of the dividends to
In re Toft, 2 Jur. N. S. 131, V. C. K. ; Ex him, including a power of attorney, and
parte Peyton, 2 Jur. N. S. 1013, V. C. S. that an order for taxation and payment of
In Ex parte The Incumbent of Guilden such charges and expenses had been pro-
Sutton, 2 Jur. N. S. 793, Lds. Js., where perly made by a Judge in Chambers.
a railway company having taken land be-
90 PETITIONS.
If the petition is presented by one of several persons interested in the
fund, it should either pray that the shares of these parties should be paid
to them, or, if there be any difficulty in dealing with them on account of
their being incumbered or otherwise, that the money be carried over to a
separate account or accounts. In re Hawkes' Trust, 18 Jur. 33.
The petition should also name a place where the petitioner may be
served with any " petition or notice of any proceeding or order of the
Court relating to the trust fund ; and the trustee must be served with
notice of any application made to the Court respecting the fund or the
dividends or interest thereof by any party interested therein, and the
parties interested in or entitled to the fund must also be served with notice
of any such application.
Where, however, the parties interested have been numerous, the Court
has allowed some members of a class to be served on behalf of the rest.
In re Colson's Trust, W. Rep. 1853, 1854, p. Ill ; In re Twemlow's
Trust, June 10th, 1854, V. C. W. ; Darling on Trustee Rehef Act, p. 45.
In re Young, 5 W. Rep. 400, Lds. Js., it was held, that where the
share of a lunatic had been ordered to be carried to his separate account,
it was not necessary that the trustees should be served with a petition
presented in the matter of the lunacy for a transfer of the share of the
lunatic.
The Court has jurisdiction to deal with the fund after it has been paid
into Court, upon the petition of the trustees; but unless there be some
good ground for the trustees interfering, the Court will not give them
their costs of such a petition. In re Cazneau, 2 Kay & J. 249; 2 Jur.
N. S. 157.
In a plain case the Court refused to allow the trustees their costs of
appearing on the petition for the payment of the fiind out of Court, but
gave them their costs of paying the fund into Court. In re Covington's
Will, 1 Jur. N. S. 1157, V. C. S.; 25 L. J. Ch. 238. See also Ex
parte Hemming, 2 Jur. N. S. 1186, V. C. W.
And in a case where the Court considered that the conduct of a trustee
was vexatious, he was ordered to pay the costs of the petitioner. Iti re
Woodburn, 5 W. Rep. 423 ; on appeal, lb. 642.
As to costs of petition where tenant for life petitions, see In re Staple's
Settlement, 13 Jur. 273; In re Borimer, 12 Beav. 521 ; Moss's Trust,
15 Jur. 241 ; lb. 1 Sim. N. S. 196, where it would seem the case is in-
accurately reported on the question of costs. Darling on the Trustee
Relief Act, p. 99. See also In re Field's Settlement, 16 Beav. 146 ;
Re Butler's Trust, 16 Jur. 324, M. R.; In re Bangley's Trust, 16
Jur. 682, V. C. K.; In re Ingram, 18 Jur. 811, V. C. K.
It must be borne in mind that all applications under the Trustee Relief
Act, where the trust fund does not exceed 300Z. cash qc 300Z. stock, must
be made at chambers ; 2nd of the Orders of the 12th Nov. 1856.
U 9na.rricJ- 'Urfi^ot^ 'T'vyic/i^ fi- ''^'H^fW^/S^ ^ ^*~^^^ i^ ^J -g^^^Tl^^rU^ CCi^i.* A^^^^^^^ iiTZ^^^cnt/^
PETITIONS. 91
139. Forvn, of Petition under Trustee Relief Act {h).
In the matter of an act of parliament made and passed in
the session holden in the tenth and eleventh years of her
present Majesty, intituled " An Act for better securing
Trust Funds and for the Relief of Trustees,"
And of the trusts of the settlement of J, R. and J. T. his
■wife, so far as the same relate to the share of J. D., a
person entitled thereunder.
To &c.
The humble petition of G. D. of &c. and J. D. his wife.
\The petition stated a settlement under which the female petitioner
was entitled to one-fifth share of certain funds, subject to a previous life
estate, whi-ch had determined.']
That petitioner J . D., previously to her marriage with the co-peti-
tioner, intermarried with J. P. on the day of
\The petition then stated that J. P. left this country in November,
1834, for Sydney, New South Wales ; and that in May, 1 836, the
female petitioner was informed by the master of the vessel in which her
first husband had gone to Sydney, that he was in a dying state, and
that in the following year she received a letter from a female friend
residing there, telling her that he mas dead.]
[The petition further slated, that in 1843 J. P. transmitted to this
country a power of attorney, signed by him-, authorizing a gentleman in
London to receive his wife's share under the settlement for her use.]
That no tidings or communications had been since received of and from
the said J. P.
That, believing the said J. P. to be dead, the petitioners intermarried
on the 28th day of October, 1849.
That, on the 3rd day of March, '1855, the trustee of the settlement
filed an affidavit which had been made by him in the above-mentioned
matter, stating to the purport and efiect hereinbefore stated in paragraphs
1 to 6 (both inclusive) ; and also stating that the share of the funds ap-
plicable to the trusts of the said indenture of settlement, to which the
petitioner J. D. was entitled, consisted of the following sums of stock,
that is to say, 175/. Bank £3 per Cent. Annuities, £ Reduced An-
nuities, &c., and that he was desirous of transferring the same, in the
name and with the privity of the Accountant-General of this Honourable
Court, to the account of the above-mentioned trust ; and that, to the best
(J) Prac. vol. 2, p. 1311. See 10 & 11 & 13 Vicf. c. 74; and the Orders of the
Vict. c. 96 (Trustee Relief Act) ; and 12 10th of June, 1848.
92 PETITIONS.
of his knowledge and* belief, the petitioners G. D. and J. D. were the
only persons who were interested or entitled to the said trust funds or
any part thereof.
That accordingly the said O. V. [the trustee] transferred the said
1751. Bank Three per Cent. Annuities &c. into the name of the said Ac-
countant-General, to the account of the above-mentioned trust.
That notwithstanding the petitioners believed, as they still believe, that
the said J. P. died previously to the petitioners intennarrying, they were
advised, before they presented a petition to this Honourable Court re-
specting the said trust funds, to cause further inquiries to be made con-
cerning the said J. P.
That accordingly the petitioners' solicitors, on &c., wrote and sent a
letter to Messrs. G. & T., sohcitors, practising at Sydney, requesting
them to make inquiries concerning the said J. P., and to ascertain
whether he was living or dead, and, if dead, when he died.
That the said Messrs. G. and T. have recently received a letter, dated
&c., from Messrs. , but it appears therefrom that they have not
been able to ascertain whether the said J. P. was or is living or dead.
That there was issue of the said marriage between the petitioner J. D.
and the said J. P. two children and no more, one of whom died in her
infancy, and the other, namely, T. P., is still living and of the age of
twenty-seven years.
That the petitioner J. D. is of the age of fifty-two years, and there has
never been any issue of the marriage between the petitioners.
That the said Accountant-General having invested certain of the divi-
dends which have accrued due in respect of the said trust funds since the
transfer thereof into his name as aforesaid, the same now consist of &c.,
and such last-mentioned several funds, together with the sum of £
cash arising from the dividends aforesaid, are now standing in the name
of the said Accountant-General in the matter of the above-mentioned
trusts.
That no settlement or agreement for a settlement was made either on
the marriage of the petitioner J. D. with her first husband, the said J.
P., or with her present husband, the petitioner G. D.
That the place where the petitioners are desirous that they may be
served with any petition is &c.
Your petitioners therefore humbly pray your Honor (c), that the
(c) An order was made by the Master that the female petitioner should be re-
ef the Rolls, March 9th, 1857, on this strained from anticipating her life income,
petition, according to the terms of the and that her son by her first marriage
prayer, except that his Honor directed should only take the corpiis of the fund in
PETITIONS. 93
costs of your petitioners and all other proper parties to this pe-
tition and consequent thereupon may be taxed by the proper
taxing-master as between solicitor and client, including in the
costs of A. B., the trustee, the costs of the transfer of the be-
fore-mentioned funds into Court; and that so much of the Bank
;£3 per Cent. Annuities standing in the name of the Accountant-
General to the account &c., as with the sum of £ cash
on the like credit, and any other sum, will raise the said costs,
when taxed, and also the duty payable on the said trust funds,
the amount to be verified by affidavit, may be sold ice.
That 3001. Reduced Annuities (d), part of the said £ like
annuities, may be settled in the following manner (that is to
say) : —That the dividends hereafter to accrue due in respect
thereof may be paid to your petitioner J. D. during her life for
her separate use and upon her sole receipt ; and that, upon the
death of your petitioner J. D., the said 300Z. Reduced An-
nuities may be transferred to the said T. P., her son, or that
such settlement may be made of the said 300Z. Reduced An-
nuities and the dividends thereof for the benefit of your peti-
tioner J. D. and her issue, as to your Honor may seem fit.
And that the respective residues of the said Bank ^3 per Cent,
case he survived his mother, and that she person to be living within that time."
should have a power of appointing by will See The Queen v. Briggs, 2 Jur. N. S.
in case he died previously to her. 1195.
It is observed that in this case, without In Doe v. Jesson, 6 East, 80, 84, Lord
its being necessary to determine whether EUenborough states, " that the presump-
the first husband was to be deemed dead tion of the duration of life with respect to
or not, acting upon the discretion with persons of whom no account can be given
which the Court is invested, and treating ends at the expiration of seven years from
the case as one of desertion, it was war- the time when they were last known to be
ranted in settling the whole fund. See living." See also Doe v. Deakin, 4 B. &
Dunkley v. Dimkley, 16 Jur. 767, L. C. ; Aid. 433.
2 De G., M. & G. 390 ; and the cases re- But in Watson v. England, 14 Sim. 28,
ferred to. Sir L. Shadwell, V. C, observed, that the
(d) The Court has in some recent cases old law relating to the presumption of
embodied in the order the terms of the death was, in consequence of the increased
settlement to be made of a fund in Court, facility of travelling, becoming more and
as it did in this case. See also Wright v. more untenable. See also Dowley v. Win-
King, 18 Beav. 461. field, 14 Sim. 277; Cuthbert v. Furrier, 2
As to the presumption of death from Ph. 199; Creed's Trusts, 1 Drew. 235,
absence, by the 9 Geo. 4, c. 31, s. 22, it V. C. K.
is enacted, that any person marrying dur- In Mileham's Trust, 15 Beav. 507, where
ing the life of his or her former' husband a tenant for life of a fund in Court was
or wife shall be guilty of felony ; but it is transported in 1838, and had not since
provided, that this enactment shall not been heard of, upon an application made
extend to any person marrying a second in 1852 by the remaindermen, the Court
time, " whose husband or wife shall have directed payment of the dividends to them,
been continually absent from such person upon an undertaking to replace the amount
for the space of seven years then last past, out of the capital, if the tenant for life
and shall not have been known by such should be still alive.
94
PETITIONS.
Annuities and Reduced Annuities, and any interest to accrue
on the said annuities or the residues thereof, may be transferred
and paid to your petitioner G. D.
Petitions under the Trustee Act, 1850 (13 ^ 14 Vict. c. 60).
Preliminary Obsernations.] — The petitions, and summonses on appli-
cations under this act, and the Extension Act, 15 & 16 "Vict. c. 55, are
usually thus entitled: — " In the matter of the settlement [or mortgage,
or -will] of A. B., and of the Trustee Act, 1850," which is sufficient,
even though the application is made under the Extension Act, inasmuch
as, by the t2th section of that act (15 & 16 Vict. c. 55), the Extension
Act is to be construed as part of the Trustee Act, 1850.
It has been suggested in the registrar's office that, in framing the
prayers of the petitions, it would tend to secure the order being drawn
up in conformity with the section of the act within which the case falls,
if the particular section were referred to, as in the following example,
adapted to sects. 7 and 37 : —
140. General Form of Prayer.
Your petitioner therefore humbly prays that, in conformity with the 7th
and 37th sections of the said act, the petitioner, being interested in
the lands hereinafter mentioned [or, having been duly appointed a
trustee of the indenture dated &c., or, of the will of G. H. in the
petition mentioned, or, the petitioner being beneficially interested in
the equity of redemption in the lands hereinafter mentioned, or, the
petitioner being interested in the monies secured by the mortgage
hereinafter mentioned, and the said A. B. being an infant and as
the heir at law of the said C D., the survivor of C. D. and E. F.,
the trustees named in the said indenture dated &c., or, in the will of
G. H. in the petition mentioned seised (or, possessed) of the lands
comprised therein, or, now subject to the trusts thereof upon trust (e),
or, by way of mortgage, such lands may vest in the said J. K. and
L. M. as the new trustees of the said indenture, or will, or in P. R.
in the petition mentioned for the estate of the said infant therein.]
141. Petition for Appointment of New Trustees.
In the matter of the Trustee Act, 1850, and of the trusts
of the mortgage of W. O.
To&e.
The humble petition of N. G. of &c. and W. P. of &c. and
Mary Anne his wife.
[The petition in the first four paragraphs stated an indenture of
mortgage, whereby certain leasehold messuages were assigned to G. W.
(c) Or upon trust within the meaning of the Trustee Act, 1850. See words iu sec-
tion 1 of Trustee Extension Act. _jj~ ■ \ /^ ^ r* I y ' •*' —
PETITIONS. 95
for the residue of the term thereof, granted for the purpose of securing
three principal sums and interest to the petitioner N. G. and to J. O.
deceased : The bankruptcy of the mortgagor and appointment of as-
signees : The death of J. O., the appointment hy him of the petitioner
Mary Ann G. and of E. O., who was out of the jurisdiction of the
Court, as his executors, and the death of G. W. {the trustee), and the
appointment hy him of executors.]
The subsequent statements are as follows: —
5. The said several sums of &c. secured by the said indenture of mort-
gage were not paid at the respective times appointed by the said inden-
ture for the payment thereof, and the whole of such sums, together with
arrears of interest thereon respectively, still remain due and owing upon
the security thereof, but the premises comprised in the said indenture of
mortgage have not been sold under or by virtue of the trusts of the same
indenture.
6. The said E. W. &c., the executors of the said G. W., the trustee of
the said indenture of mortgage, have declined to act as trustees of the
same indenture, and the same indenture contains no provision for the ap-
pointment of new trustees or a new trustee thereof. It is expedient that
new trustees of the said indenture should be appointed, but it is imprac-
ticable to do so without the assistance of this Court.
7. C. F. of &c. and E. P. of &c. are fit and proper persons to be
appointed trustees of the said indenture of mortgage in the place of the
said G. W. deceased, and they are willing to act as such trustees, ^t-*^ kiA^
Your petitioners therefore humbly pray, that in conformity with
the 32nd, 34th and 35th sections of the Trustee Act, the said
C. F. and E. P. may be appointed trustees of the said inden-
ture of the day of in substitution for the said
G. W. deceased, and that the lands comprised in the said in-
denture may vest in the said C. F. and E. P. for the estate
by the said indenture conveyed to the trustees thereof, upon
the trusts by the same indenture declared, or such of them as
are now subsisting or capable of taking effect, and that the
right to sue for and recover any chose in action, subject to the
trusts of the said indenture, may vest in the said C. F. and
E. P. as such trustees; and that the costs, charges and expenses
of your petitioners of this application and consequent thereon
may be taxed by the proper taxing master, and be paid by the
said new trustees out of the trust estate (/).
(/) All the persons beneficially inter- procured, join in the petition. If there
ested should, if their concurrence can be are any infants they should be petit ioners.
96 PETITIONS.
142. Petition under the Act for facilitating Leases and Sales of
Settled Estates.
In the matter of an act of parliament made and passed in
the session holden in the nineteenth and twentieth years
of her present Majesty, intituled " An Act to facilitate
Leases and Sales of Settled Estates,"
and
In the matter of a freehold farm, lands and hereditaments,
containing acres, devised by the will of John
Miles, deceased, situate &c. and in the occupation
of
To&c.
The humble petition (^r} of &c. [the several persons beneficially
entitled, and the trustees of the settlements made on the mar-
riages of some of those so entitledl.
Sheweth as follows, —
T. M. late of &o. duly made and executed his last will in writing,
dated &c., and thereby devised all his freehold lands and hereditaments
unto and to the use of A. B. (since deceased) and C. D. (since deceased)
and their heirs and assigns for ever, upon the trusts thereinafter and in
part hereinafter mentioned (that is to say), as to the said freehold farm
by their next friend. If the tenant for as prayed, except as to the shares sought
life petitions alone, the persons entitled to be paid to the trustees, which were
in remainder should be served, and the old directed to be paid into Court to the se-
trustee should also be served, unless he parate accounts of the parties respectively
is out of the jurisdiction of the Court. Re entitled. The respondent was the sole
Maynard, 16 Jur. 1084. The Court does surviving or acting trustee of the will of
not require strict proof of the title or the testator.
interests of the parties (such as certifi- As to the provisions of the Act, 19 &
cates of baptism, &c.), but is generally 20 Vict. c. 120, and the General Orders
satisfied with an affidavit of a competent of the 15th of Nov. 1856, issued under
person verifying the facts stated in the the authority thereof, see Prac. vol. 2,
petition. pp. 1385, 1395. The examination of a
If it is sought to have new trustees ap- married woman under the 38th section
pointed by the Court in the first instance, may, it would seem, be taken after the
there must be an affidavit of their fitness, petition has been presented, but before it
and also a memorandum in writing signed is set down. Re Hooper^ 5 W. Rep. 670,
by them, testifying their consent to be- V. C. W.
come trustees, and their signatures must The Master of the Rolls expressed a
be verified by affidavit. See further, title contrary opinion in Re Brealy's Trusts,
" Orders under Trustee Act." 5 W. Rep. 613; but the Lords Justices
(g) Upon this petition coming on for have intimated that they concur in opi-
hearing before Vice-Chancellor Kinders- nion with Vice-Chancellor Wood,
ley, his Honor directed inquiries to be The solicitor taking such examination
made at chambers as to the truth of the must not be the solicitor of the applicant,
allegations made therein with respect to The leases to be granted under the act
the title of the parties beneficially inter- must be settled at the judge's chambers,
ested, and he subsequently made the order Re Proctor, 3 Jur. N. S. 35, V. C. S.
PETITIONS. 97
&c. at &c. upon the trusts following (that is to say), upon trust &c.
[hei'e the t-nists of the will are set forth, and allegations are introduced,
deducing the title to the petitioners].
The beneficial interest in the said hereditaments at aforesaid
being divided, as herein appears, into so many shares, it would be for
the advantage of all your petitioners, who are beneficially interested in
such hereditaments, that the same should be sold, and that the residue of
the monies arising from such sale, after payment thereout of the costs
and expenses attending the same, and the costs of this application, should
be applied in the manner hereinafter mentioned (that is to say), that the
share of your petitioners A. M. and her said children may be paid to
H. M. of &c. and R. W. W. of &c. who are fit persons to be trustees
thereof, upon the trusts of the said will of the said J. M. in favour of
your petitioners A. M. and her said children; and that the share of your
petitioner E. S. may be paid to the said J. D. upon trust for your peti-
tioner E. S. according to th©<8ame will, and that the share of your petitioner
M. E. G. in the same monies should be paid to yoiir petitioner C. D. and
E. F., to hold the same upon the trusts of the said marriage settlement of
your petitioner M. E. G., and that the respective shares of your other
petitioners so absolutely entitled as aforesaid in the same monies should
be paid to them respectively.
The said J. D., the sole surviving trustee of the said will of the said
testator, is a proper person to convey the said hereditaments at &c. to the
purchaser or purchasers thereof.
No application whatever has at any time been made by your peti-
tioners, or any or either of them, or by any parties or party entitled to
or interested in the said hereditaments at &c. to either House of Parlia-
ment for a private act to effect the sale. of the same hereditaments, or any
of them, or any parts or part thereof, or to effect any similar object.
Your petitioners are desirous of being served with any order of this
Honourable Court, or notice relating to the subject of this petition, at the
offices of their solicitor, Mr. G. H. of &c.
Your petitioners therefore humbly pray your Lordship, that the
said hereditaments at &c. may be sold under the order of this
Court, and that the said J. D. may be directed to convey the
same hereditaments to the purchaser or purchasers thereof, and
that the monies to be received on the sale of the same heredi-
taments may be paid into the Bank to the account of the Ac-
countant-General of this Court, Ex parte your Petitioners in
the matter of the said act, and that the costs and expenses of
your petitioners, and all other parties of and incident to this
H
98
PETITIONS.
application, and of and incident to the aforesaid sale, may be
taxed as between solicitor and client ; and that the amount of
such taxed costs and expenses may be paid out of the monies
so to be paid into the Bank as aforesaid ; and that the residue
of the same monies, after such payment of taxed costs and
expenses as aforesaid, may be applied in manner following
(that is to say), that three-sevenths of one-fourth part of the
said residue may be paid to &c. &c.
And that the remaining one-seventh of the same fourth part may
be paid to the said J. D. upon trust to invest the same in the
purchase of Bank £3 per Cent. Annuities in his name, and to
stand possessed thereof, upon trust for your petitioner E. S.,
and any and every other person or persons becoming entitled
to the same under the said will of the said J. M., and that the
remaining one-fourth part of the residue may be paid to &c.
or &c. •
( 99 )
CHAPTER X.
Affidavits.
Preliminary Observations.
An aflEldavit must be entitled in the cause or matter in which it is made,
and should contain the christian and surname, the place of residence,
description and addition of the deponent ; but it has been held that the
place of residence of a party in the cause need not be particularly de-
scribed, if he is stated to be " plaintiff" or " defendant" in the cause.
Crockett V. Bishton, 2 Madd. Rep. 446. It should be expressed in the
first person of the deponent ; 126th of the Orders of May, 1845 ; and
it should be divided into paragraphs, numbered consecutively, each
paragraph, as nearly as may be, being confined to a distinct portion of
the subject ; 15 & 16 Vict. c. 86, s. 13. An affidavit should contain a
correct statement of the material facts of the case, and should not be
argumentative, nor contain scandalous or impertinent matter. It should
also be distinctly stated what facts or circumstances deposed to are within
the deponent's own knowledge, what are his means of knowledge, and
what facts or circumstances are known to or believed by him by reason
of information derived fi-om other sources than his own knowledge, and
what such sources are.
The costs of an affidavit not in conformity with this rule will be dis-
allowed on taxation, unless the Court should otherwise direct ; 8th and
9th of Orders of June, 1854.
Affidavits must be fairly written in words at length, without any era-
sure. Crook V. Crook, 1 Jur. N. S. 654 j 2 Jur. N. S. 74, part 2. If
any interlineations should occur, the officer before whom the affidavit is
sworn should set his initials in the margin over against such interlinea-
tion previously to administering the oath.
If any document is referred to in an affidavit, it should either be set
forth in the affidavit or be impressed with some mark distinctly connect-
ing it with the affidavit, and thus be made an exhibit (a). Hemetson v.
Todhunter, 2 Sm. & G. App. 2.
Affidavits in this country may be sworn before a London commissioner
to administer oaths in Chancery, within ten miles of Lincoln's Inn Hall;
or beyond that distance, before a commissioner appointed to administer
oaths in England: 16 & 17 Vict. c. 78; and see 15 # 16 Vict. c. 86,
(a) 143. Note or Memorandum on Ex- shown to at the time of swearing
hibit. his affidavit in this cause. Sworn this
This is the paper writing marked with day of , 1857, before me
the letter A., which was produced and
h2
100 AFFIDAVITS.
«. 22. As to affidavits taken and sworn in Scotland, Ireland or the
Channel Islands, or in any colony or place under the dominion of her
Majesty in foreign parts, and as to affidavits sworn in foreign countries,
see 18 ^ 19 Vict. c. 98. But affidavits may still he sworn before notaries
public in foreign countries having authority there to administer oaths,
according to the old practice. Saggett v. Swift, 5 De G., M. & G. 910;
1 Jur. N. S. 49. See also Bateman v. Cooke, 3 De G., M. & G. 39.
The place where the affidavit is sworn should be expressed in the jurat,
which should be written at the right hand of the affidavit, and it should
be carefully read over by the deponent before sworn.
The fee to a London commissioner for administering an oath is in all
cases one shilling and sixpence, and for a country commissioner two
shillings and sixpence. The fee to the commissioner for marking each
exhibit, as well in town as in country, is one shilling ; and the fee to the
solicitor for preparing each exhibit is one shilhng. See Order of 30th
January, 1837, title Oaths and Exhibits. Neither the solicitor in the
cause nor his clerk can act as a commissioner in taking an affidavit
therein. Hophin v. Sopkin, 10 Hare, App. 2.
Affidavits should be filed before they are used in evidence, and in
ordinary cases no affidavit can be used which is made before the bill is
filed ; but where an act of parliament requires an affidavit to be annexed
to a bill, in case of a suit instituted under its provisions, such affidavit
may be made before the day on which the bill is filed ; Walker v. Fletcher,
1 Phil. 11.5; and so as to bills of interpleader. lb. 116. See also Fen-
nall V. Brown, 18 Jur. 1051. See 122nd Order of May, 1845, and
Skidmore's Trust, 1 Jur. N. S. 699, as to disallowing the costs of such
part of an affidavit as is of improper or unnecessary length.
144. General Form of Affidavit.
In Chancery.
Between A. B Plaintiff,
and
C. D. and E. F. . . Defendants.
I, G. H. of &c. [place of residence, and description or addition, or
I, A. B., the above-named plaintiff], make oath and say as follows : [or,
if more than one deponent, We, G. H. of &c., and I. J. of &c., severally
make oath and say as follows : — ]
1. I, the deponent G. H., say &c.
2. I, the deponent I. J., say &c.
The facts and circumstances deposed to by me in the paragraphs of
this affidavit are true and within my own personal knowledge.
The facts and circumstances deposed to by me in the paragraphs
of this affidavit are beHeved by me to be true, from information which I
have received fi-om
Sworn &c.
(See forms of jurats.")
AFFIDAVITS. N 101
145. Affirmation hy a Quaker or Moravian.
I, A. B. of &c., being one of the people called Quakers, make solemn
affirmation and say as follows : —
1. I, this affirmant (c) &c.
146. Affirmation hy oilier Persons.
I, A. B. of &c., do solemnly, sincerely and truly affirm and declare,
that the taking of any oath is, according to my religious belief, unlawful ;
and I do also solemnly, sincerely and truly affirm and declare &c. (d).
147.- Common Affidavit to he annexed to Bill in Interpleader Suit.
\Title, ^c]
I, the above-named plaintiiF, make oath and say, that the bill
in this suit [or, the bill hereunto annexed] is not filed by me in collusion
with any or either of the defendants in the said bill named, but such bill
is filed by me of my own accord (e) for relief in this Honourable Court.
148. Affidavit of Secretary to Public Com/pany to he annexed to Dill
in Interpleader Suit.
I, H. D. of &c., make oath and say, that I am the secretary of the
Assurance Company, and that I do not, and to the best of my
knowledge and belief the said Assurance Company does not, nor do or
does any members or member thereof, collude with either of the defend-
ants named in the bill hereunto annexed, but such bill is filed by me,
on behalf of the said company, of my own accord for relief in this Ho-
nourable Court (_/■).
149. Affidavit of the Plaintiff that he has not the Deeds in his
Possession, to annex to a Bill before it is filed.
I, T. P. the plaintifi" in this cause, make oath and say, that I have
not, nor to the best of my knowledge, remembrance or belief ever had,
all or any of the deeds, documents and writings relating to the estate in
(c) Prac. vol. 1, p. 594. ledge" of either of the defendants.
\d) See Prac. vol. 1, p. 732 ; and Com- As to affidavit under the Merchant
mon Law Procedure Act, XSSI. Shipping Act, 1854, see Prac. vol. 1, p.
(e) In Stevenson v. Anderson, 2 V. & B. 272 ; and Hill v. Andus, 1 K. & J. 269.
407—410, Lord Eldon observed that the (/) SeeBignoldy.Audland, 11 Sim. 23.
form of the affidavit in Harrison's Prac- If the company is plaintiff, say " but
tice seemed to go too far in stating that such bill is filed by the said company of
the bill was filed without the "know- its own accord, for relief," &c.
102
AFFIDAVITS.
question in this cause, and mentioned in my bill, exhibited in this
Honourable Court against the said defendant, nor do I know where the
said deeds, documents and writings, or any of them, now are, unless they
are in the custody or power of the above-named defendant (ff).
150. Affidavit to obtain Order to be admitted to sue or defend a Suit
in Forma Pauperis.
I, A. B. of &c., the above-named plaintiff [or the above-named de-
fendant], make oath and say, that I am not worth the sum of five
pounds in all the world, my just debts being first paid, and my wearing
apparel and the matter in question in this cause only excepted (A).
151. Affidavit of the Service of a Notice of Motion.
[Title of cause.]
I, Henry Walker, of clerk to solicitors for the above-
named plaintiff, make oath and say, that I did on the day of
instant, serve Mr. who is the solicitor of the above-named de-
fendants [or Mr. and Mr. who are solicitors respectively
for the above-named defendants and ] with a notice in
writing, purporting that this Honourable Court would be moved before
his Honor on the day of then next, or so soon after
as counsel could be heard, that &c. [here set forth the noticel, by deli-
vering to and leaving with a clerk of the said Mr. at his office in
a true copy of such notice [or in case there should be more than
one solicitor, then add, and also by delivering and leaving with a clerk
of the said Mr. at his office in a true copy of such notice.]
152. Affidavit of Personal Service of a Bill or Claim.
1. On &c. I personally served the above-named defendant with
a printed bill of complaint, filed in the above cause, at the Record and
Writ Clerks' Office, on &c., having an indorsement thereon in the form
prescribed by the statute in that case made and provided, by delivering
to and leaving with the said defendant at in the county
of a printed copy of such bill with such indorsement thereon as
aforesaid, which said printed copy was stamped with the proper stamp of
the Record and Writ Clerks' Office, indicating the filing of such bill and
the date of the filing thereof.
(g) Prac. vol. 1, 271; Mitf. PI. 66; Crosse v. Bedmgfield,\mm. iO.
Hook V. Dorman, 1 Sim. & Stu. 227 ; (A) Prac. vol. 1, pp. ,37, 41.
AFFIDAVITS." 103
153. Affidavit of Service of a Bill or Claim, at the Dmelling-house of
the Defendant.
On the day of I served the above-named defendant
with a printed bill of complaint [or claim], filed in the above
cause at the Record and Writ Clerks' Office on the day of
having an indorsement thereon in the form prescribed by the statute in
that case made and provided, by delivering to and leaving with
[the wife, or with his servant], at his dwelling-house, situate at a
printed copy of such bUl [or claim], with such indorsement thereon as
aforesaid, which said printed copy was stamped with the proper stamp
of the Record and Writ Clerks' Office, indicating the filing of such bill
and the date of filing thereof.
154. Affidavit of Service of an Amended Bill or Claim on the Solicitor
of the Defendant.
On the day of I served Mr. the solicitor of the
above-named defendant with a printed bill of complaint \or claim],
filed in the above cause in the Record and Writ Clerks' Office on the
day of , as amended on the day of pursuant
to an order dated the day of , having an indorsement thereon
in the form prescribed by the statute in that case made and provided, by
delivering to and leaving with the said Mr. [or with a clerk of the
said Mr. ] at his office situate at a printed copy of such
amended bill [or claim], with such indorsement &c. [as in the last form,
and introducing the word amended."]
155. Affidavit of Delivery of Interrogatories.
On the day of I delivered to the above-named defendant
a copy of certain interrogatories for the examination of the said
defendant by leaving such copy with the said defendant
personally [or with the wife or servant of the said at his dwelling-
house] at in the county of which said copy of interrogatories
was duly stamped and marked as an office copy at the Record and Writ
Clerks' Office, and purported to be a copy of [or such of] the interroga-
tories filed in this cause on the day of for the examination
of the said defendant [as the said defendant was required to answer.]
156. Affidavit of Service of Interrogatories on the Solicitor of a De-
fendant.
On &c. I delivered to Mr. the solicitor of the above-named de-
fendant a copy of certain interrogatories for the examination of the
104
AFFIDAVITS.
said defendant by leaving such copy with the said Mr. [or
with his clerk] at his office situate &c., which said copy of interroga-
tories was duly stamped and marked as an office copy at the Record and
Writ Clerks' Office, and purported to be a copy of the interrogatories
filed in this cause, on &c., for the examination of the said defendant [or
such of the interrogatories filed &c. as the said defendant was required to
answer.]
157. Affidavit to obtain Order assigning Guardian ad litem to an In-
fant Defendant.
Ij of solicitor for the above-named [irfant] defendant
make oath and say, that the said is an infant under the age of
twenty-one years, and A. B. of is the [state relationship] of the
said infant, and has no interest in the matters in'question in this cause
adverse to the said ; and the said A. B. is a proper person to be
appointed a guardian of the said by whom to defend this suit (i).
158. Affidavit of Tender of Costs where Defendant taken under
Attachment or hy Messenger.
[Affidavit hy Solicitor of Defendant or his Clerk.}
1. That by an order made in this cause, bearing date the day of
it was ordered that the said defendant T. M., upon his paying
or tendering the costs of his contempt in &c., be discharged out of the
custody of the sherifi' of [or the messenger] as to his said contempt.
2. I did, on the day of instant, pursuant to such order,
tender to Mr. who is the plaintiflT's solicitor in this cause, the sum
of £ for the costs of such contempt, but the said Mr. refused
to accept the same or any other sum of money for such costs as afore-
said.
3. I did, on the day of serve the said Mr. with the
said order by delivering to or leaving with his clerk, at the office of the
said situate at a true copy of such order duly passed and
entered (k).
159. Affidavit of Service of a Petition.
1. I did, on &c., serve Mr. of who is the solicitor
for [state whether plaintiff or defendant, or for whom, else he is soli-
(i) See Prao. vol. 2, p. 1415 ; and ante, Sim. & Stu. 121 ; Gray v. Campbell, 1 R.
page 70. & My. 323 ; Wilkin v. Kainbu, 4 Hare,
(A) See Prac. vol. 1, p. 358 ; vol. 2, 473, 475.
p. 1411. See also Green v. Thomson, 1
w
AFFIDAVITS. 105
dtor], with a petition in this cause [or matter], preferred to the Right
Honourable the Lord High Chancellor [or Master of the Rolls] by
with his Lordship's [or Honor's] order thereon, bearing date &c., whereby
it was ordered, that all parties concerned should attend his Lordship [or
Honor] on the matter of the said petition, the next day of petitions, of
which notice was to be given forthwith, by delivering to and leaving
with a clerk of the said Mr. at his office at &c., a true copy of the
original petition, with his Lordship's [or Honor's] order thereon, and at
the same time producing and showing him the said original petition, with
his Lordship's [or Honor's] order thereon.
160. Affidavit of havingtcast up the Schidules to a Defendant's Answer
in support of a Motion to pay Money into Court.
1. I attended at the Record and Writ Clerks' Office and cast up the
schedules annexed to and forming part of the answer of the above-named
defendant A. B. ; and the first schedule, containing an account of the
receipts of the said defendant, amounted to the sum of £, and no
more j and the second schedule, containing an account of the payments
of the said defendant, amounted to the sum of £ and no more ;
and the said sum of £ being deducted from the said sum of £
there remains the sum of £ which appears from the said schedules
to be the balance due from the said defendant to the estate of the
testator in the pleadings ef this cause mentioned.
161. Affidavit in support of Motion to appoint a Person to represent
Estate of a Defendant dying abroad.
1. On or about &c. I received from V. C, of Havannah, in the island
of Cuba, who was an intimate friend of F. P. deceased, a letter dated
&c., now produced and shown to me at the time of swearing this my
affidavit and marked with the letter A, written in the French language,
a true and correct translation whereof is in the words and figures follow-
ing ; (that is to say,)
2. And we the said A. P. and M. P. severally for ourselves say, that
F. P., the person named and mentioned in the said letter received from
the said V. C. above referred to, is the defendant F. P. mentioned in the
pleadings in this cause, and is the son of me the deponent M. P., and
brother of me the deponent A. P.
3. The said defendant F. P. died, as we verily believe, at Havannah,
in the said island of Cuba, on or about &c., without leaving any estate or
efiects ; and that no letters of administration to the said defendant F. P.
deceased have been taken out, and since the announcement contained in
106 AFFIDAVITS.
the said letters the relatives of the said F. P. have treated his death as
certain.
4. I, the said M. P., for myself say, that the said defendant F. P. died
unmarried and intestate, and I am advised and believe that I am the
person entitled to take out letters of administration to the said defendant
F. P.; but inasmuch as the said defendant has not left any estate or
effects whatsoever, it is not my intention to take out or apply for such
letters of administration (i).
162. Affidavit as to the Correctness of the Translation into Enylish of
a Document in a Foreign Language.
1. I am well acquainted with and in the constant practice of trans-
lating the Italian language.
2. The paper writing marked with the letter produced and shown
to me this deponent at the time of swearing this my affidavit, contains a
correct and faithful translation into the English language of such parts
or pages of the original document in the Italian language as are marked
respectively with the letters and also produced and shown to me
this deponent at the time of swearing this affidavit.
163. Affidavit identifying a Person named in a Certificate of his
Death or Burial.
1. I was well acquainted with A. B. named in the paper writing or
certificate marked with the letter D., produced and shown to me at the
time of swearing this affidavit.
2. The said A. B. is the same person as A. B. of &c. named in the
certificate of the chief clerk of his Honor Vice-Chancellor
dated &c. (m).
164. Affidavit verifying the Parish Register as to the Burial of a
Party in a Cause, and his Identity.
[Extract from book.]
1. That the above is a true copy of an entry made in the books kept
(I) See ante, ■p. 60. duction from the proper custody, shall be
(m) By the statute of 6 & 7 Will. 4, o. admissible in evidence, provided it pur-
8, 8. 38, it is enacted, that certified copies port to be signed and certified as a true
of entries, purporting to be sealed or copy or extract by the person to whose
stamped with the seal of the register custody the original is entrusted,
office, shall be received as evidence of A copy or extract from the parish book,
the birth, death or marriage of the person certified as a true copy or extract, by the
to which the same relates. And by the "curate" of the parish, is sufficient. See
14th section of the 14 & 15 Vict c. 99, Be Porter, 4 W. Rep. 443, V. C. W.; 2
it is enacted, that any copy or extract of Jm:. N. S. 349. The case He Neddy Hall's
or from any books of a public nature. Estate appears to be inaccurately re-
admissible in evidence on its mere pro- ported in 2 De G., M. & G. 748.
AFFIDAVITS. l07
by the vicar of the parish of &c. for registering burials in the said parish,
so far as the same relates to the burial of the said A. B.
2. I, this deponent, carefully examined and compared the same with
the said book.
3. The said A. B. is the same person as A. B. mentioned in &c., as
I know, having been acquainted with the said A. B. in his lifetime.
165. Affidavit of the Execution of a Deed hy Attesting Witness.
1. I was present on the day of and saw sign,
and deliver the parchment writing or deed dated &c., marked with the
letter produced and shown to me at the time of swearing this my
affidavit.
2. The name or signature " " thereto set and subscribed, as the
party executing the said deed, is of the proper handwriting of the said
and the name set and subscribed as the person witnessing
the execution thereof by the said is of the proper handwriting of
me this deponent.
166. Affidavit of Execution of Deed hy a Person not a Witness to the
Execution.
1. I am well acquainted with the handwriting of the defendant F. G.
H. [having often seen him write].
2. The indenture dated &c., and purporting to be made between the
said defendant F. G. H. &c., produced to me at the time of making this
affidavit, marked with the letter was, as I believe, duly executed by
the said defendant F. G. H., and the name " F. G. H." set and sub-
scribed at the foot of the said indenture is of the proper handwriting of
the defendant F. G. H.
3. I am also well acquainted with the handwriting of J. E. B. of &c.,
and I say that the name " J. E. B." set and subscribed to the said in-
denture, as the attesting witness to the execution thereof by the said
F. G. H., is of the proper handwriting of the said J. E. B. (w).
(») By the 26th section of the 17 & 18 Notwithstanding this provision, the'
Vict. c. 125, it is enacted, that it shall Court, unless there is some difficulty in
not be necessary to prove by the attesting proving the execution of an instrument
witness any instrument, to the validity in the ordinary manner, requires that it
of which attestation is not requisite, and should be so proved, at least in ex parte
that such instrument may be proved by cases. In re Reay's Estate, 1 Jur. N. S.
admission or otherwise, as if there had 222, V. C. K.
been no attesting witness thereto.
108
AFFIDAVITS.
167. Affidavit of a Witness being of the Age of Seventy Years to
obtain Order to examine him de bene esse.
I, A. B. of &c., solicitor for the above-named plaintiflP in this cause,
make oath and say,
1. That C. D. of &c. is a ve?y material witness for the said plaintiff
in this cause, and that he cannot ■without the evidence of the said C. D.,
as I am advised and verily believe, safely proceed to a hearing of this
cause.
2. The said C. D. is now of the age of seventy years (p), as I have
been informed by him and verily believe.
168. Affidavit hy Plaintiff or Defendant to obtain an Order for a
Commission or for an Examiner to examine Witness abroad.
1. This cause is now at issue, and I, this deponent, am desirous of
proceeding therein.
2. I have several witnesses to examine in support of the case made
by my bill \or answer], who now live and reside at and
[and particularly A. B., C. D. and E. F.], who can, as I believe, prove
the truth .of the allegations made in the paragraphs of my bill \or
answer].
3. The several witnesses above named are, as I believe and am advised,
material and necessary witnesses for me in this cause, and without their
testimony I cannot safely proceed to a hearing ; but that with the testi-
mony of those witnesses, I am advised and believe, I shall be able to
make a good defence in this cause [or can establish my right to relief in
this cause] {p).
169. Affidavit of Service of Subpoena to hear Judgment.
1. I did on &c. serve Mr. the solicitor for the above-named
defendant A. B. with a subpoena in this cause, dated &c., which sub-
poena appeared to me to be and which I verily believe to have been duly
issued out of and under the seal of this Honourable Court, with the
indorsement thereon, pursuant to the General Rules and Orders of this
Court in that case provided, and by which subpoena the said defendant
was commanded to appear before &c. [as in subpoena'], by delivering to
(o) See ante, p. 61. witnesses or the facts as to which it is
(p) See Croft v. Middleton, 9 Hare, proposed to examine them in a case,
App. 18. where it appears from the pleadings that
According to Carhgnell v. Bessell, 5 Sim. there is a necessity for a commission.
636, it is not absolutely necessary that But see Mendizabel v. Maclmdo, 2 Sim. &
the affidavit should state the name of the Stu. 483 ; S. C, 2 Russ. 540.
AFFIDAVITS. 109
and leaving with a clerk of the said at his office situate &c. a true
copy of the said subpoena and of the indorsement thereon, and at the
same time producing to him the said original subpoena so under seal as
aforesaid (5),
170. Ajgidavit by Clerk of Defendant's Solicitor of being served with
Subpoena to hear Judgment.
1. I was on &c. at the office of Mr. A. B., who is and acts as solicitor
in this cause for the defendant C. D., served with a copy of a subpoena,
which appeared to me to have been duly issued oiit of and under the seal
of this Honourable Court and duly indorsed, whereby the said defendant
C. D. was commanded &c. to appear &c. [as in subpoena'].
2. At the time of such service, a writ purporting to be the original
writ of subpoena was produced and shown to me this deponent, which
said writ appeared to me to be duly indorsed.
171 . Affidavit verifying Examination of a Married Woman and the
Commissioner^ Certificate.
1. I was present and did see the above-named defendant L. C. duly
sign her examination in this cause taken before &c. on the day of
1854, pursuant to an order in this cause, dated &c., and the name
or signature L. C. set and subscribed to the said examination is of the
proper handwriting of the said defendant L. C.
2. I was also present and did see the said J. C. and 8. M. in the said
order named, duly sign and seal the certificate annexed to such exami-
nation as aforesaid, and the names or signatures J. C. and S. M. there-
unto set and subscribed are of the proper handswriting of the said J. C.
and S. M. respectively.
3. The name or signature A. B. set and subscribed to the said exami-
nation and certificate respectively as the witness attesting the execution
thereof respectively is of the proper handwriting of me this deponent
A. B.
4. The paper writing marked D. hereunto annexed, produced and
shown to me at the time of swearing this my affidavit, is the original
examination so as aforesaid signed by the said L. C, and the original
certificate of J. C. and 8. M. so as aforesaid signed and sealed by them
the said J. C. and 8. M. in my presence.
A. B.
Sworn at in the county of Down,
Ireland, this day of 1854,
before me, J. G. H.
{q) See Prac. vol. 2, p. 749.
110 AFFIDAVITS.
172. Affidavit of no Settlement, upon Application for- Payment of
• Money out of Court belonging to a Married Woman.
We, A. B. of and C. D. wife of the said A. B., severally make
oath and say as follows : —
First. That no settlement, nor agreement for settlement whatever, was
made, entered into or executed previous to or upon or since the marriage
of us the said deponents.
Form of Affidavit in case of there being a Settlement, but which does
not affect the Fund.
» [As inform, above.]
1. That no settlement &c. [_as above'], except the settlement now pro-
duced, dated &c. and marked with the letter C., and shown to us at the
time of swearing this affidavit.
2. That such settlement in no way aflPects the sum of £ men-
tioned in the chief clerk's certificate, dated &c. [or in the petition lately
presented by us in the above-mentioned cause, and which is thereby
sought to be obtained out of Court] (r).
173. Affidavit of Service of a Decree or an Order for Payment of
Money into Court.
I did on &c. personally serve the above-named defendant with a
decree [or an order] made in this cause by &c. dated &c., by which said
decree [or order] the said defendant was ordered &c. [set forth so much
of the decree or order as directs payment of the money], by deliver-
ing unto and leaving with the said defendant at a true copy of
the said order, and at the same time producing and showing unto the
said defendant the said original order duly passed and entered,
and on which copy when so served was indorsed the words following
(that is to say), " If you, 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, and also
(r) In case of there being a settlement, the money, appear in Court, or before
the ordinary course is for the counsel for commissioners, and consent to the pay-
the petitioner to peruse it, and if he be ment being made to himj and whether
satisfied that it does not affect the fund the fiind be above or under 2002., there
in question to state so to the Court. must either be an affidavit that there is
In cases where there is a fund in no settlement, or if there be, that it does
Court to which a married woman is en- not affect the fund. Prac. vol. 2, p. 92 ;
titled (except where it is under 200i), she Bretten v. Bretten, 9 Beav. 143, 144.
must, if she wishes her husband to receive
AFFIDAVITS. Ill
be liable to have your estate sequestered, for the purpose of compelling
you to obey the same order [or decree] (s).
174. Affidavit of Service of Subpoena for Costs,
1. I did on the day of personally serve the above-named
defendant with a subpoena issuing out of and under the seal of
this Honourable Court, by -which subpoena the said defendant was re-
quired to pay or cause to be paid, immediately after the service of the
said writ, unto the above-named plaintiff or bearer thereof the sum of
£, costs in this cause adjudged to be paid by the said as
appeared to me this deponent by the said subpoena, by delivering to and
leaving with the said • at &c. a true cop^of the subpoena and the
indorsement thereon, and at the same time producing to him the said
original subpoena so under seal as aforesaid.
2. I did at the same time demand of the said defendant the said
sum of £ but the said defendant then refiised to pay the same, or
any part thereof, to me, and the said defendant hath not since paid the
same, or any part thereof, either to me or to the said plaintiff, or to any
other person or persons for his use or on his account, as I have been
informed by the said plaintiff and verily believe (t).
175. Affidavit verifying Amount of Interest directed to he paid
into Court.
1. The interest of the sum of £ directed by the order made in
this cause, dated &c. to be paid into the Bank by therein named,
from the day of in the said order mentioned, to &c. when
the same is to be paid into the Bank, in pursuance of the said order, at
the rate of £ per cent, per annum, amounts (after deducting the
property tax thereon) to the sum of £ making with the said sum
of £ the sum of £
(«) See Prac. vol. 2, p. 810; and 11th stituted service contains no direction for
and 12th Orders of the 11th of April, that purpose. A power of attorney ia not
1842, as amended hy Order of the 18th of necessary to authorize the hearer of a
July, 1857. As to an order for suhsti- subpoena for costs (not being the party
tuted service, see Roly v. Scholes, 20 L. T. to whom the costs are payable) to serve
231, M. R. tl^'^ subpoena, and demand and receive
(t) Prac. vol. 1, p. 729. the costs, and the fact, that the costs are
Where substituted service of a sub- payable to several persons, does not make
poena for costs is ordered upon the soli- any difference ; and where a plaintiff's
citor of the party ordered to pay, the bearer bill is by the decree dismissed with costs,
of the subpoena at the time of service, it the jffoceeding by writ of attachment is
seems, is warranted by the practice of the the right mode, in the first instance, for
Court in demanding the costs of the soli- recovering the defendant's costs. Andrews
citor, although the order directing sub- v. Walton, 1 M. & G. 380, 383.
112
AFFIDAVITS.
176. Affidavit in support of Petition for Leave to appeal to the
House of Lords in FormS, Pauperis.
In the House of Lords.
J, S Appellant,
and
B. E. and others . . Respondents.
1. J. S. of &c. maketh oath and saith, that on &c. this deponent
intends to present unto the Right Honourable the Lords Spiritual and
Temporal in Parliament assembled a petition of appeal against the decree
or decretal order of the Right Honourable the Lords Justices of Appeal
made in certain suits in tiie High Court of Chancery, wherein the above-
named B. E. was plaintiff and and were defendants,, and
wherein &c. pronounced on &c.
2. That this deponent is very poor, and not worth five pounds in the
world, his wearing apparel and the subject-matter of the said suits ex-
cepted, and is by reason of such his poverty unable to prosecute the said
appeal.
{Signature) J. S.
Sworn at the Police Court, Bow Street,
this day of before me,
D. Jardine, a magistrate of the Police
Courts of the Metropolis.
177. Affidavit, hy an Executor, to obtain Order to restrain Action
after Decree.
1. I have, in the first schedule hereunder written, set forth a true, full
and particular account of all and singular the sum and sums of money
received by or come to the hands of me this deponent, as the executor
of T. T., the testator in the pleadings of the cause named, or to the hands
of any other person or persons by my order, or for my use.
2. I have really and hond fide paid, as executor of the said testator,
the several sums of money mentioned and set forth in the second sche-
dule hereunder written, in discharge or part discharge of the debts of the
said testator, and for his funeral expenses.
3. I have not any sum or balance whatever on account of the personal
estate of the said testator in my possession or power [or, I have the
balance or sum of £ and no more, on account of the personal
estate of the said testator, in my hands].
4. The outstanding personal estate and efiects of the said testator con-
AFFIDAVITS. 113
sist of the several debts and other particulars, so far as I am enabled to
set forth the same, specified in the third schedule hereunder written.
The first schedule referred to by the foregoing affidavit.
The second schedule referred to by the foregoing affidavit.
The third schedule referred to by the foregoing affidavit (m).
178. Affidavit of Mortgagee, or his Attorney, having attended to
receive Mortgage Money certified to be due.
1. I did [under and by virtue of a power of attorney dated &c, and
duly executed by the said plaintifi" , and] in pursuance of the chief
clerk's certificate, bearing date the day of , made in this cause
on the day of , personally attend and wait at the Chapel of
the Rolls, in Chancery Lane, London, fi'om before the hour of
of the clock in the forenoon of the said day of until after the
hour of twelve at noon, being the time and place mentioned in the said
chief clerk's certificate, in order to receive from the above-named de-
fendant A. B. the sum of £ by the said certificate reported due
and directed to be paid to me {or to the said plaintifi"] for principal,
interest and costs, in respect of my [or his] mortgage security in ques-
tion in this cause, at which time and place the said defendant A. B. did
not, nor did any person or persons on his account or behalf, attend or
pay to me the said sum of £ or any part thereof, nor has he since
paid or tendered the same to me [or, as I have been informed by the
said plaintiff and verily believe, to the said plaintiff,] but the same sum
of £ still remains due and unsatisfied.
179. Affidavit to obtain Writ of Distringas on Stock.
A. B. [the name or names of the party or parties on
whose behalf the writ is sued out] v. The Governor and
Company of the Bank of England.
I A. B., of , do solemnly swear that, according to the best of
ray knowledge, information and belief, I am [or if the affidavit is made
by the solicitor, C. D. of is] beneficially interested in the Stock
hereinafter particularly described, that is to say, [here specify the amount
(u) This affidavit is necessary where or affidavit made under the decree. Prac.
the application, to restrain a creditor from vol. 2, p. 1213 ; Paxton v. Douglas, 8 Ves.
proceeding at law, is made by the execu- 520 ; rernon v. Thellusam, 1 Ph. 466—
tor, and where the state of the assets does 471 ; Oi^in v. Lady Southampton, 18 Ves.
not appear upon the executor's answer 469. See also ante, p. 59.
I
114 AFFIDAVITS.
of the Stock to be affected by the wHt, and the name or names of the
person or persons, or body politic or corporate, in whose nam^ or names
the same shall be standing (a;).]
180, Affidavit in support of Petition to obtain Money paid into Court
under Railway Act.
I am not [or we are not] aware of any right in any other person, or of
any claim made by any other person, to the sum of £ in the petition
presented by me [or by us] in these matters mentioned, or any part
thereof (^).
181. Affidavit of Trustee, upon transferring Fund under Trustee
Melief Act,
In the matter of &:c.
And of the trusts of the settlement of A. B., of &c. so far
as the same relate to the share of J. E. D^, a person en-
titled thereunder.
1. By an indenture of settlement &c. [In this and the succeeding
four paragraphs, the circumstances are stated under which J. E. D.
became entitled to a fifth share of the settled fimds.l
5. That the said J. JE. D. intermarried with and became the wife of J. P.
6. I depose to the matters stated in the preceding paragraphs from
information I have derived', at various times, from &c.
7. I have been informed by the said J. E. D. that the said J. P. in
the year 1837, left this country for the purpose of proceeding to Sydney
in New South Wales, and never afterwards returned, and that to the
best of her belief he died some time previously to the year 1844 ; and I
have been further informed by the said J. E. D. that she has since inter-
married with G. S. D. of &c.
8. The share of the funds applicable to the trusts of the said indenture
of settlement, to which the said J. E. D. is entitled as one of the said
five children of the said J. R. and J. T. his wife, consists of the following
sums (that is to say), 175Z. 17«. \0d. Bank £2 per Cent. Annuities,
£ Reduced Annuities, &c., all which said several funds are now
standing in my name in the books of the Governor and Company of the
Bank of England, and I am desirous of transferring the same into the
name and with the privity of the Accountant-General of this Honorable
Court, in trust " In the matter of &c."
9. My name and address are as above described, and the office of my
{x) Order of 10 Dec. 1841. See also Order of 17 November, 1841.
ly) Prac. vol. 2, p. 1346.
AFFIDAVITS. 115
solicitors, Messrs. R. &c., situate at &c., is the place where I am desirous
of being served with any petition or any notice of any proceedings or
order of this Honorable Court relating to the said trust funds.
10. To the best of my knowledge and belief, the said J. E. D. and the
said G. S. D. are the only persons who are interested in or entitled to
the said trust funds or any part thereof.
11. I submit to answer all such inquiries relating to the application of
the trust funds aforesaid, as this Honorable Court may think proper to
make or direct.
Trustee Relief Act.
Observations.— See Prdb. vol. 2, p. 1311 ; 10 & 11 Vict. c. 96 ; 12
& 13 Vict. c. 74,
A trustee desiring to pay money or transfer stock or securities into
the name of the Accountant-General, under the provisions of the Trustee
Relief Act, must file an affidavit entitled in the matter of the act and of
the trust, and setting forth: — His own name and addres s; t he place
where he is to be served vrith any p etiti on or any notice of any procee d-
i ng or order of the Court relating to the trust f und; th e amounroF
st ock, sg caii ties or money which he proposes to deposit, or tolriansfer, or ~
to pay into Court to the credit of the tru sty a short descri ptinn nf tha
&ist, and of thfi instrument creating it ; thfijiaTnesof the parri fts inter-
esteJ Tn or entitled to the fiind to the best of the knowledge and belief of
^6e1ru5ee ; and the submission of th e trustee to answer all such inquiries ~
rel ating to the application of the stocks, securities or m op^y traiiafprrpfl^
deposited or paid in under _the act, as the Court may think prnpsr tn
make o x. direct . And he should also make the necessary statement as to
such ot^he facts and circumstances as are within his own knowledge, &c,,
&c., in order to comply with the 8th Order of the 13th of January,
1855.
And such affidavit, in every case where the trustees deem it unne-
cessary to have the money or the dividends or interest of stock or secu-
rities invested in the meantime, should further contain a statement to
that efiect. If the affidavit should not contain such statement, the ac-
countant-general is authorized to invest, as soon as conveniently may be,
the cash in Bank £3 per Cent. Annuities in the matter of the particular
trust ; or in cases of dividends or interest in stock or securities transferred,
such dividends or interest on the like stock, and all accumulations of the
dividends of the stock in which such cash may be invested, and of the
dividends or interest on such stock or securities, from time to time, in the
like matter, without any special order made by the Court, and without
any formal request for that purpose.
If, however^ at any time a request in writing, by or on behalf of any
party claiming to be entitled, that such investment be discontinued,
should be left vnth the Accountant-General, he will be at liberty to cease
making any further investment in the matter of the particular trust until
f'^'Cf-^t^ 4^^,u^i,^ Jit ft /^^t^i^^n^ 6 ^t^- A/,S /^^
116 AFFIDAVITS.
the Court should have made some order in that behalf. Order of 7th
May, 1852.
The trustee, having made the payment, transfer or deposit, must forth-
with give notice in writing thereof to the several persons named in the
affidavit as being interested in or entitled to the fund. Orders of 10th
of June, 1848.
As a general rule it is incumbent on all the trustees, where there are
more than one, to join in the affidavit. In an Anonymous Case, 1 Jur.
IV. S. 974, V. C. Wood, under the circumstances, ordered the Account-
ant-General to accept the fund upon the affidavit of one of the trustees.
The fund should be paid or transferred to a particular account and not
generally as " In the matter of the trusts of the will of A. B." In re
Joseph's Will, 11 Beav. 625; In re Everett, 12 Beav. 485; In re
Wright's Trusts, 15 Beav. 368. The statute does not extend to foreign
funds or securities. Williams v. Trye, 18 Jur. 442.
Sir John Romilly, M.R., has held, that legacies charged upon real
estate are not trust monies within the operation of the act. See also Cox
V. Cox, 1 Kay. & J. 251.
The trustee is discharged from being questioned in a suit by bill as to
the fund paid into Court. Thorp v. Thorp, 1 K. & J. 438 ; Goods v.
West, 9 Hare, 378.
182. Affidavit as to fitness of Trustee, under Trustee Act.
I have known A. B., who is proposed to be appointed a trustee of the
settlement dated &c. [or will of ] in the petition presented in this
matter mentioned, for years last past.
2. He is [describe his rank, profession or business'], and he is a gentle-
man of great respectability.
3. The said is, as I verily believe, in every respect a fit, proper
and eligible person to be appointed a trustee of the said settlement [or
will].
183. Affidavit verifying Consent in Writing of a Person milling to be-
come Trustee.
I was present on &c. and did see of sign the memorandum
or consent in writing at the head [or on the first side] of this sheet of
paper [or the paper writing marked with the letter A, and produced and
shown to me at the time of swearing this my affidavit], and the name
thereto subscribed is of the proper handwriting of the said
( 117 )
CHAPTER XI.
Section 1.— Orders.
184. Order for Service of Bill on Defendant out of the Jurisdiction.
Upon motion this day made unto this Court by of counsel for
the plaintiff, it was alleged that the plaintiff has exhibited his bill in this
Court against the defendants A. B. &c., and that they reside at Naples,
and that the defendant C. D. resides at Pesth ; it was therefore prayed
that the plaintiff may be at liberty to serve a copy of the printed bill filed
in this cause, and the indorsement thereon, on the defendants A. B. &c.,
at Naples or elsewhere, and on the defendant C. D., at Pesth or else-
where in Hungary ; and the time within which the said defendants A. B.
&c. are to appear to the said bill is to be fourteen days after such service,
and the time within which the said last-mentioned defendant C. D. is to
appear to the said bill is to be eighteen days after such service (a).
185. Order for next Friend of Married Woman to give Security for
Costs.
[Title of cause.]
Upon motion this day made unto this Court by Mr, of counsel
for the defendant T. W., it was alleged that the defendant has appeared
to the plaintiff's bill, and the plaintiff by the said bill styles herself
L. W., now residing in the city of Paris, the wife of T. W., of &c. the
defendant hereto, by I. W. C, of Paris aforesaid, her next friend ; it
was therefore prayed that I. W. C, the next friend of the plaintiff,
may procure some sufficient person on his behalf to give security,
according to the course of this Court, by bond to the clerk of records
and writs, in whose division this cause is, in the penalty of 100?., con-
ditioned to answer costs in case the Court shall think fit to award any,
before the said defendant shall be obliged to put in his answer to the
plaintiff's bill, which is ordered accordingly (6).
(a) See Prse. vol. 1, p. 305. As to ob- it to the person served with the process
taining an order permitting substituted permitted to be served on him.
service, see Prac. vol. 1, p. 302, and /one* (6) ff^yse v. Wyse, 10 Dec, 1845,
V. Brandon, 2 Jur. N. S. 437, vfhere Vice- V. C. K. B. See Prac. vol. 1, p. 31 ; and
Chancellor Wood observed that the order 40th Order of April, 1828.
ought to contain a direction for showing
118 OKBEHS.
186. Order appointing Cfnardian ad Litem of an Infant Defendant.
[Title.]
Upon the humble petition of the defendant U. R., an infant, this day
preferred unto the Right Honorable the Master of the Rolls, for the
reasons therein contained, and upon reading the affidavit of T. T. filed
the day of , it is ordered that T. R. of &c. be and he is
hereby assigned the guardian of the petitioner, by whom he may answer
the plaintiff's bill and defend this suit, and hereof notice is to be given
forthwith.
187. Order for Plaintiff to he at liberty to appear for Defendant
served with Bill out of the Jurisdiction.
[Title, #c.]
Whereas by an order &c. [recite order authorizing service abroad^.
Now, upon motion this day made unto this Court by of counsel
for the plaintiff, it was alleged that on the day of the said
defendant A. B. was duly served at Naples with a printed copy of the
said bill and the indorsement thereon, and a copy of the said order, as
by the affidavit of the plaintiff and an exhibit marked A, being a notarial
certificate in the Italian language, of the service of copies of the said
bill and duplicate order on the said defendant appears j but the said de-
fendant A. B. hath not entered an appearance to the said bill, as by the
record and writ clerk's certificate appears ; it was therefore prayed that
the plaintiff may be at liberty to enter an appearance to his said bill for
the said defendant A. B., which, upon hearing the said order, the no-
tarial certificate, an affidavit of A. E., and certificate read, is ordered
accordingly.
188. Order to set down Demurrer.
[Title.]
Upon the humble petition of the plaintiff T. S., this day preferred
unto the Right Honorable the Lord High Chancellor of Great Britain,
for the reasons therein contained, it is ordered that the demurrer of the
defendants E, E. and M. E. to the plaintiff's bill be set down to be
argued before his Lordship after the pleas and demurrers already ap-
pointed for hearing before his Honor the Vice-Chancellor Kindersley,
and hereof notice is to be given forthwith (c).
(c) See Prac. vol. 1, p. 483.
ORDERS. 119
189. Order authorizing Service of Notice of Replication and Subpoena
to hear Judgment upon Defendant out of the Jurisdiction.
[Recite orders for service of bill and for entering appearance.]
That such appearance was entered accordingly on &c., that the plain-
tiff does not require any answer from the said defendant, and that the
time allowed to a defendant (not required to plead, answer or demur) to
file such plea, answer or demurrer has expired, and that no such plea,
answer or demurrer has been filed, as by the record and writ clerk's cer-
tificate appears ; that the said defendant A. B. is still residing at Naples,
as appears by the affidavit of C. C now produced and read ; that the
plaintiff is desirous of serving the said defendant with notice of replica-
tion, and also with a subpoena to hear judgment in this cause ; it was
therefore prayed that the plaintiff may be at liberty to serve a notice of
replication having been filed in this cause, and also to make all further
services of all subsequent proceedings in this cause on the said defendant
A. B. at Naples or elsewhere in the kingdom of Naples, which, upon
hearing the said affidavit read, is ordered accordingly.
190. Order for leave to prove Exhibits by Affidavit at the hearing of
a Cause.
[Title, ^c]
It is ordered, that the petitioners be at liberty at the hearing of this
cause to read(l,S. 982; directed by the decree. See Spode v.
26 L. J., Ch., 27. Smith, 3 Russ. 511.
(*) The account of the personal estate
ORDERS. 131
them, or of any other person or persons, by their or either of
their order, or for theii^ or either of their use.
2. An account of the said testator's debts (m).
3. An account of the said testator's funeral expenses.
4. An account of the said testator's annuities and legacies.
5. An inquiry what parts (if any) of the said testator's personal
estate are outstanding or undisposed of, and whether any, and
if any what, proceedings should be taken and by whom for the
purpose of realizing or recovering the same.
And it is ordered, that the said testator's personal estate, not spe-
cifically bequeathed, be applied in payment of his debts and funeral ex-
penses in a course of administration, and then in payment of his legacies
and annuities.
And &c., that the following further accounts and inquiries be taken
and made (that is to say) : —
6. An inquiry what real estate the said testator was seised of or en-
titled to at the date of his will and at the time of his death.
7. An inquiry of or to what leasehold estates the testator was pos-
sessed or entitled.
8. An inquiry what mortgages or incumbrances affect the said tes-
tator's real estate, or any and what parts thereof respectively,
and whether any and which of such mortgages or incumbrances
are subject to any and what agreements or conditions, which
prevent the mortgaged estates, or any and which of them, from
being redeemed before the expiration of any and what period,
without the consent of the mortgagees or incumbrancers re-
spectively, and, if so, whether such mortgagees or incum-
brancers are willing to concur in the sale of the said estates, or
any and which of them, and upon any and What terms, and if
not, whether it will be expedient that the equity of redemption
of the said testator in the said mortgaged hereditaments, or any
of them, or any other mortgaged hereditaments Of the testator,
should be sold ; an account of the rents and profits of the said
(u) Wliere an account of debts is di- deceased's death, unless any other time
rected, unless otherwise ordered, interest of payment or rate of interest is directed
is to be computed on such debts, as to by the will, and in that case according to
such of them as carry interest after the the will. 10th and 11th of the Orders of
rate they respectively carry, and as to all 16th of October, 1852.
others after the rate of il. per cent, per As to form of decree, where there is a
annum from the date of the order, and mixed fund for payment of debts and le-
as to legacies, interest is to be computed gacies, see Coote v. Lord Miltowri, 1 J. 8s
on them after the rate of 4i per cent, per Lat. 501 j Shore v. Shore, 5 W. Rep. 250,
annum from the end of one year after the V. C. K.
k2
132 ORDERS.
testator's real estate and leasehold estates received by the de-
fendants or either and which of them, or by any other person
or persons by their or either of their order or for their or either
of their use.
And &c. that such of the estates of the said testator as are not subject
to any mortgages or incumbrances, and also such of the said estates of
the said testator as are subject to any mortgages or incumbrances with
the consent of the mortgagees or incumbrancers, be respectively sold.
And &c. that the purchase- money to arise by such sale be paid into the
Bank, with the privity of the Accountant-General of this Court, to be
there placed to the credit of this cause. And this Court doth declare,
that the purchase-monies in respect of such of the said estates as are sub-
ject to mortgages or incumbrances, and as are sold with the concurrence
of the mortgagees or incumbrancers, are to be applied, so far as may be
necessary, in satisfaction of such mortgages and incumbrances re-
spectively. And it is ordered, that the defendants J. P. and H. J. do,
on or before the day of pay the sum of £ admitted
by their answer to be in their hands, into the Bank, with the privity of
the said Accountant-General, to the credit of this cause. And it is or-
dered &c. [directions for investment.']
And it is ordered, that the further consideration of this cause be ad-
journed, and any of the parties are to be at liberty to apply to this Court
as they may be advised.
212. Decree for Specific Performance of an Agreement for Sale of a
Mortgage Debt.
This cause coming on &c., this Court doth declare, that the plaintiff is
entitled to a specific performance of the agreement dated &c., and doth
order that the same be carried into effect accordingly ; and upon the due
execution of a proper conveyance of the mortgage debt in the said agree-
ment mentioned by the plaintiff, such conveyance to be settled by the
judge of the Court to whom this cause is attached in case the parties
differ about the same; it is ordered, that the defendant D. H. do pay to
the plaintiff L. W. the sum of £, the purchase-money for the said
mortgage debt, with interest thereon at the rate of 41. per cent, from &c.,
the day on which it was first shown the plaintiff had power to sell the
said mortgage debt. And it is ordered, that it be referred to the proper
taxing-master of this Court to tax the costs of the plaintiff of this suit
from the said day of . And it is ordered, that the said costs
when so taxed be paid by the defendant D. H. to the plaintiff L. W.
Liberty to apply.
OBDERS. 133
213. Decree for Specific Performance in ca/'e of Sale of Good-mill of a
Business, with Inquiry as to subsequent Dealings with the Stock
in Trade.
His Honor doth order, that the agreement in the bill (x) mentioned
ought to be specifically performed and carried into execution in case a
good title can be made to the premises comprised therein. And it is
ordered, that the following inquiries be made : —
1. An inquiry whether a good title can be made to the leasehold
premises comprised in the indenture of lease dated &c., in the
agreement in the plaintiff's bill mentioned ; and, in case it shall
appear that a good title can be made to the premises, when it
was first shown that a good title could be made.
2. An inquiry what was the value on &c. \the date of the con-
tractl (y) of the stock of drugs, chemicals and other medicines,
implements, utensils in trade, articles, house and trade fixtures
comprised in the said agreement.
3. An inquiry whether any and what part thereof and to what
amount has been sold or removed from the premises, and un-
der what circumstances. And it is ordered, that the further
consideration of this cause be adjourned, and any of the parties
are to be at liberty to apply to this Court as they may be ad-
vised.
214. Order for Sale of an Estate.
[Title, ^c]
This cause coming on for further consideration thereof, adjourned by
the order dated &c., in the presence of counsel for the plaintifi' and de-
fendants, upon opening and debate of the matter, and hearing the said
order and the chief clerk's certificate dated &c., and what was alleged
by the counsel on both sides, and and trustees of the inden-
ture dated &c. appearing by counsel and consenting to be bound by the
order of the Court in the same manner as if they had been parties de-
fendants on the record :
{x) BelUngham v. Norrish, 16th Nov. of a good-will; but this observation does
1855, M. R. not apply to the case of a purchase of the
A decree containing a reference as to good-will of a business, together with the
title should contain a declaration that vendor's term or interest in the house
the contract ought to be specifically per- where the business is carried on. See
formed. Mole v. Smith, Jac. 490—495. Coslake v. Till, 1 Russ. 376 ; Dakin v.
(y) In Baxter v. Conolly, 1 J. & W. Cope, 2 Russ. 170; Bryson V. Whitehead,
580, Lord Eldon observed that the Court 1 Sim. & Stu. 1i.
would not execute a contract for the sale
134 ORDERS.
This Court doth order, that the lands &c. situate &c. referred to in the
chief clerk's certificate, be sold («), with the approbation of the judge to
whose Court this cause is attached, either with or without the concur-
rence of A. S. (the tenant for life).
And it is ordered, that the plaintifi" be at liberty, with the approbation
of the said judge, to enter into a negociation with the said A. S. for the
purpose of obtaining her concurrence in the said sale. And it is ordered,
that the money to arise by the said sale be paid into the Bank, with the
privity of the Accountant-General of this Court, to the credit of this
cause.
215. Decree of Foreclosure.
{Title, %c. (a)]
It is ordered, that the plaintiff's bill do stand dismissed as against the
defendant H. S. with costs, and that it be referred to the proper taxing-
master of this Court to tax the said costs ; and it is ordered, that the
plaintiff R. H. do pay to the said defendant his costs when taxed, and
what the plaintiff shall so pay is to be added to his own costs, to be
taxed as hereinafter directed j and it is ordered, that the following ac-
counts be taken (that is to say) : — First. An account of what is due for
principal and interest on the security of the hereditaments comprised in
the indenture dated &c.
Secondly. An account of all sums of money paid, laid out or expended
by the said W. M. or the plaintiff [transferee of the mortgage] for fines,
fees and costs &c. of the renewals by the Dean and Chapter of Bristol of
the lease dated &c. ; and of all sums of money paid, laid out or expended
by the plaintiff in necessary repairs (6) and lasting improvements of the
(k) Where there is a simple direction mortgage was of mines, that the mort-
for sale, the property is to be sold with gagee, who had entered into possession,
the approbation of the judge to whose was entitled to be allowed certain sums
Court the cause or matter is attached to which he had expended in working the
the best purchaser that can be got for the mines, and which, by the terms of his
same, to be allowed by such judge ; and security, he was empowered to work, to-
all proper parties are to join therein as geth'er with interest thereon,
such judge shall direct. 12th of the Where two estates, Whiteacre and
Orders of 16 October, 1852. Blackacre, are mortgaged to A., and after-
• (o) Holford V. Yate, V. C. Wood, Nov. wards the mortgagor mortgages Whitacre
2, 1854 ; see Prac. vol. 1, p. 773. alone to B., B. is entitled to have the
(6) In order to entitle the mortgagee to securities marshalled, so as to throw A.'s
an inquiry as to repairs and lasting im- mortgage in the first instance on Black-
provements, he must establish a case for acre. Gibson v. Seagrim, 20 Beav. 614.
such inquiry at the hearing. Sandon v. As to decree for sale of mortgaged es-
Hooper, 6 Beav. 246 ; affirmed Dec. 21, tate, see ante, p. 11 ; and Prac. vol. 1, p.
1844. 152; Wigham v. Measor, 5 W. Rep. 390,
In Norton v. Cooper, 25 -L. J. 121, the V. C. W.
Lords Justices held, in a case where the In carrying out a decree for successive
ORDERS. 135
hereditamentB comprised in the said indenture of mortgage of &c. ; and
in taking the said account, interest is to be computed on the money paid
for fines and fees on renewal, and the charges attending the same, and
laid out in lasting improv€m«nts, after the^same rate of interest as the
said mortgage carried ; and what shall appear to be due on the said
account is to be added to what shall be found due for principal and in-
terest on the said mortgage.
Thirdly. An account of the rents and profits of the hereditaments
comprised in the indenture of &c., or which without the wilful default
of the plaintiff might have been received ; and what shall be found due
from the plaintiff on taking the said account is to be deducted from what
shall be found due to him fer principal and interest as aforesaid ; and in
taking the said accounts all just allowances are to be made.
And it is ordered, that it be referred to the said taxing-master to tax
the plaintiff his costs of this suit.
And it is ordered, that upon the defendants or any of them paying to
the plaintiff what shall be certified to be due to him for principal and
interest as aforesaid, together with his costs of this suit, within six
months afler the same shall have been certified, at such time and place
as shall be appointed, the plaintiff do reconvey and reassign the mort-
gaged premises for all the plaintiff's interest therein to the defend-
ants or such of them as shall redeem, fi-ee and clear of all incum-
brances done by the said W. M. or the plaintiff, or any persons claim-
ing by, from or under them or either of them, and do deliver up all deeds
and writings in the custody or power of the plaintiff relating thereto,
upon oath, to the said defendants or such of them as shall redeem, or to
whom they shall appoint.
But it is ordered, that in 'default of the defendants paying unto the
plaintiff such principal, interest and costs as aforesaid by the time afore-
said, the defendants shall stand absolutely debarred and foreclosed of
foreclosures, an order absolute to foreclose in case of non-payment at the time ap-
the person having the first right to redeem pointed, or if he should obtain the order
must be obtained, before the chief clerk it will, upon application being made for
can proceed to take an account of subse- that purpose, be discharged. See next
quent interest and costs, and to appoint a Order.
time for redemption by the person next If the party entitled to redeem does
entitled to redeem. Whitbread v. I/yall, not pay the money at the time' and place
2 Jur. N. S. 671 ; 25 L. J., Ch., 791. See appointed for that purpose, to the plain-
also Radcliffe v. Salmon, 4 De G. & Sm. tift' or the person duly appointed for that
526. purpose, an affidavit must be made of the
The plaintiff must take care neither non-payment of the money and an order
personally nor by his agent to receive absolute of foreclosure applied for by mo-
any rents after the date of the chief tion ex parte ; and when the order is
clerk's certificate, otherwise he will not drawn up and entered, a copy should be
be entitled to obtain the order absolute served on the party entitled to redeem.
136 ORDERS.
and from all equity of redemption of, in and to the said mortgaged pre-
mises and the hereditaments comprised in the said indenture &c.
And the said decree is to be binding on the infant defendant A. N.,
unless be, being served with a subpoena to show cause against the same,
shall within six months after he should attain his age of twenty-one years
show unto this Court good cause to the contrary.
216. Order discharging former Order of Foreclosure.
Upon motion made this day unto &c. by Mr. of counsel for the
defendant W. Y., and upon hearing &c., this Court doth order, that the
order (c) bearing date &c. be discharged. And it is ordered, that an ac-
count be taken of the subsequent interest due to the plaintiff on the
security in the pleadings mentioned. And it is ordered, that an account
be taken of the subsequent rents and profits of the hereditaments com-
prised in the said indenture of &c. received by the plaintiff since the
day of or which without his wilful de&ult might have been
received. And it is ordered, that what shall be found due from the said
plaintiff on taking the said account be deducted from what has been and
shall be found due to him for principal, interest and costs ; and in taking
the said account all just allowances are to be made. And it is ordered,
that a new time and place be appointed for payment of what shall be
found due to the plaintiff; but in default of the defendants paying unto
the plaintiff such principal, interest and costs by the time aforesaid, the
defendants are to stand absolutely debarred and foreclosed of and from
all equity of redemption of, in and to the said mortgaged premises and
the hereditaments comprised in the said indenture of lease, &c., and the
said order is to be binding on the infant defendant A. N., unless &c.
217. Minutes of Order enlarging of Time for Payment of Mortgage
Money.
Cur: — Let the defendant W. Y. pay the costs of this application and
consequent thereon, to be taxed, and upon the said W. Y. paying to the
plaintiff, on the day of instant, between and
o'clock in the forenoon, at the Rolls Chapel, the sum of £ in re-
spect of the amount found due to him by the certificate dated &c., let the
time limited thereby for the defendants, other than the defendants H. D.
and Y. S., redeeming the mortgaged premises, be enlarged to the
day of ; but in default of the defendant W. Y. paying to the said
(c) The order absolute, which was dis- ficate. Holford v. Yate, 20 Dec. 1854,
charged because the plaintiff's agent had V. C. W. ; and see Alden v. Foster, 5 Beav. ■
received rent after the date of the ceiti- 592.
OHDERS. 137
J)laintiflF the said sum of £ by the time aforesaid, the said defend-
ants are to stand absolutely debarred and forelosed of and from all equity
of ledemption of, in and to the said mortgaged premises and heredita-
ments comprised in the indenture &c. in the pleadings mentioned j and in
case the said defendant W. Y. shall pay the said sum of £ to the
plaintiff within the time aforesaid, it is ordered, that it be referred to the
proper taxing-master to tax the plaintiff his subsequent costs of this suit ;
and let an account be taken of the subsequent interest due to the plaintiff
from the day of instant on the aggregate amount found due
to him by the said certificate dated &c., less interest on the £ from
the time of payment ; and let a new time and a new place be appointed
for payment of what shall be found due to the plaintiff; but in default of
the defendants paying unto the plaintiff such principal, interest and costs
by the time aforesaid, the defendants are to stand absolutely debarred
and foreclosed of and from all equity of redemption of, in and to the said
mortgaged premises ; and this is to be binding on the infant defendant
A. N. unless &c. (d).
218. Decree, on Sill by part Owner of a Ship, for an Account (e).
This cause coming on &c., this Court doth order, that an account be
taken (f) of all dealings and transactions of the defendant J. M'G. from
the 1st day of October, 1838, in relation to the ship or vessel called the
" Jane," in the pleadings mentioned, and of all sums which have been
received and properly expended by the said defendant in respect thereof,
and in taking such account, all just allowances are to be made; and in
case it shall appear that any account has been settled (^f) between the
parties, or the parties interested in the said ship in the plaintiff's bill men-
tioned, the same is not to be disturbed. And it is ordered, that the
further consideration of this cause do stand adjourned.
219. Order overruling Demurrer.
[Title, ^c]
The matter of the demurrer put in by the defendant E. E. to the
plaintiff's bill coming on this present day to be argued in the presence of
(d) Holford V. Yate, July *, 185-5, 1 K. (/) As to the Statute of Limitations, see
& J. 677, V. C. W.J see also Combe v. RoUnsm v. Alexander, 2 CI. & Fin. 717,
Stewart, \% Beav. 111. where the case of Barber v. Barber, 18
The time may be enlarged notwith- Ves. 286, is impeached. See also Forbes
standing the decree and the order absolute v. Skelton, 8 Sim. 335 ; and 19 & 20 Vict,
have been enrolled. ThornhUl v. Man- c. 97, s. 9 ; Inglu v. Haigb, 8 M. & W.
ning, 1 Sim. N. S. 451 ; Ford V. Wastell, 769; Cottam V. Partridge, 4 Scott, N.
2 Ph. 591. R'eP- 819.
(e) Strong v. M'Glasson, June, 1857, (g) Kinsman v. Barker, 14 Ves. 579.
V. C. K.
138 ORDERS.
counsel learned for the plaintiff and for the said defendant, upon opening
and debate of the matter, and hearing what was alleged by the counsel
for the plaintiff and for the said defendant E. E., this Court held the said
demurrer to be insufficient, and doth therefore order, that the same be
overruled. And it is ordered, that the defendant E. E. do pay to the
plaintiff T. 8. his costs occasioned by her said demurrer. And it is or-
dered, that such costs be taxed by the proper taxing-master of this
Court.
220. Order on Special Case.
[Date, Sfc.l
Between J. E., J. P. and T, J. . , Plaintiffs,
and
T. J. S. and S. J. E. . . Defendants.
This special case (h) coming on &c. to be argued before this Court in
the presence of counsel learned on both sides, it was ordered, that this
cause should stand for judgment; and this cause standing this present
day for judgment, in the presence of counsel learned on both sides, this
Court doth declare, that the appointment purported to be made by A. E.,
the testatrix, in the special case named, by her will or testamentary ap-
pointment dated &c., is not a good and valid disposition in fee simple of
the estate called comprised in the indentures dated &c.
221. Order on Petition in a Cause hy Mortgagee and Mortgagor of a
Share of Fund in Court for Payment of such Share.
Upon the petition of the defendants W. R. and M. B., and of G. E.
&e., and upon hearing counsel &c., and reading &c., this Court doth
order, that out of the interest and dividends to accrue on the 5th day of
January next on the £ . £3 per Cent. Annuities standing in the
name of the Accountant-General, " The account" &c., the sum of £
(being the proportion of interest to which the estate of the said E. B. is
entitled) be paid to the petitioner W. R., the executor of E. B., widow,
deceased. And it is ordered, that it be referred to the proper taxing-
master to tax the petitioners and the defendant N. B. their costs of this
application and consequent thereon, and the plaintiff J. B. his costs of
appearing on this petition as between solicitor and client; and he is to
certify the total amount thereof. And it is ordered, that notwithstanding
(A) See Prac. vol. 1, p. 416 ; 13 & 14 or interests of the parties. Domville v.
Vict. c. 35. The only jurisdiction which Lamb, 9 Hare, App. 55 j Garlick v. Law-
the Court has upon hearing a special case, son, 10 Hare, App. 14.
is to make a declaration as to the rights
ORDERS. 139
the said orders dated &c., so much of the said £ Bank £S per
Cent. Annuities as, with the residue of the said interest and dividends to
accrue due thereon, will raise the said costs and the amount of the legacy
duty payable in respect of the said Bank Annuities (the amount of such
duty and the residue of the said dividends to be verified by affidavit) be
sold with the privity of &c. and one of the cashiers &c. ; and out of the
money to arise by the said sale and the residue of the said interest and
dividends, it is ordered, that the said costs be paid as follows : — the costs
of the petitioners to &c., and the costs of the defendant N. B. to &c.
And thereout also it is ordered, that the amount of the said legacy duty
he paid to the said Mr. G. R., the petitioner's solicitor, he undertaking
to pay the same to the proper -officer appointed to receive the same. And
it is ordered, that upon production of the proper legacy receipt, the
residue of the said Bank Annuities be divided into twenty parts. And
it is ordered, that six of such twentieth parts be carried over, in tj-ust in
the matter of J. B., a person of unsound mind. And it is ordered, that
six other of such twentieth parts be sold &c,, and one of the cashiers of
&c., and is to pay the same into the Bank, with the privity of &c., to be
there placed to the credit of this cause to the said account, *' The account
of the defendant E. B., widow, and her children," and out of the money
to arise by the said sale, it is ordered, that the sum of £ be paid to
the petitioner G. E. in discharge of all principal money, interest and
costs due to him in respect of his mortgage security in the petition menr
tioned, and that the residue of the said money be paid to the petitioner
W. R.
[Directions are here given as to the payment of seven other twentieth
parts.']
And it is ordered, that the remaining twentieth part be carried over in
trust in this cause, " The account of the plaintiff J. B., and W. B., and
others his incumbrancers," subject to the further order of this Court;
such twentieth part of the said Bank Annuities, and the several other
parts therec^ to be verified by affidavit. And it is ordered, that the
interest to accrue due on the Bank Annuities hereinbefore directed to be
carried over to " The account of &c.," be paid to the petitioner M. B.
during her life, or until the further order of this Court. And upon her
decease, any person or persons interested in the said Bank Annuities are
to be at liberty to apply to this Court as he, she or they may be advised.
And for the purposes aforesaid &c.
140 ORDERg.
221. Order for Investment, on Railway Petition.
Tuesday the 16th day of December, in the 15th year &c.
Ex parte The Great Northern Railway Company.
In the Matter of The Great Northern Railway Act, 1846, and
The Lands Clauses Consolidation Act, 1845.
Whereas the Reverend H. C, clerk, rector of &c. did on &c.
prefer his petition unto the Right Honorable the Master of the Rolls,
setting forth as therein is set forth, and praying &c., whereupon all
parties concerned were ordered to attend his Honor on the matter of the
said petition, and counsel for the petitioner, and for the said Great
Northern Railway Company, this day attended accordingly. Upon
hearing the said petition ; the Act of Parliament made and passed in the
Session of Parliament holden in the 9th and 10th years of &c. ; a va-
luation, dated &c., of W. W. G., and T. S. W. practical surveyor;
an affidavit of the Reverend H. C. in support of the said petition ;
the Accountant-General's certificate, that the said Great Northern
Railway Company had paid into the Bank of England the sum of
£, to the credit of " Ex parte The Great Northern Railway Com-
pany, In the Matter of the Great Northern Railway Act, 1846," and
the Accountant-General's certificate of the fund in Court, read; and what
was alleged by the counsel for the petitioner and for the said Great
Northern Railway Company : his Honor doth order, that £ part
of £ cash in the bank to the credit of " Ex parte the Great Nor-
thern Railway Company, In the Matter of the Great Northern Railway
Act, 1846" ii), be laid out in the purchase of Reduced Bank Annuities
in the name and with the privity of the Accountant-General of this
Court in trust. Ex parte the Great Northern Railway Company, " the
account of the rector of the rectory of &c. for the time being," and the
said Accountant-General is to declare the trust thereof accordingly, sub-
ject to the further order of this Court. And it is ordered, that the
dividends to accrue on the said Reduced Annuities, when so purchased
as aforesaid, from time to time as and when the same shall become due,
be paid to the petitioner the Reverend H. C, rector of the parish of
and to the future rector for the time being of the said parish, to
be verified by affidavit until the further order of this Court. And for
the purposes aforesaid, the said Accountant-General is to draw on the
bank according to the form prescribed by the act of parliament, and the
ii) Prac. vol. 2, p. 1347 ; 8 & 9 Vict. form of order of investment in purchase
c. 18, o. 78. See 10 Hare, App. 36, for of land.
ORDERS. 141
general rules and orders of the Court in that case made and provided.
And it is ordered, that it be referred to the taxing-master of this Court
in rotation, to tax the petitioner his costs of this application, including
therein all reasonable charges and expenses incident thereto. And it is
ordered, that such costs, charges and expenses when so taxed be paid by
the Great Northern Railway Company to the petitioner.
222. Order, on Petition, under the Trustee Relief Act.
It is ordered, that it be referred to the proper taxing-master to tax the
petitioner and the plaintiffs their costs of this application and occasioned
thereby, as between solicitor and client, and he is to certify the total
amount thereof. And it is ortiered, that so much of the £ Bank
.£3 per Cent. Annuities, standing &c., as will raise the amount of the
legacy duty payable in respect of the said Bank Annuities (the amount
of such duty to be verified by affidavit), be sold with the privity &c.
And it is ordered, that one-fifth part of the residue of the said Bank £3
per Cent. Annuities (such one-fifth part to be verified by affidavit), and
the sum of £ , one-fifth part of £ cash in the bank to the
credit of the said cause, be carried over in trust in and to the credit of
this cause, " The account of the defendant J. B. and his incumbrancers,"
and the said Accountant-General is to declare the trust thereof accord-
ingly, subject to the fiirther order of this Court. And it is ordered, that
so much of the remaining four-fifth parts of the residue of the said
Bank Annuities as, with £ the residue of the said cash, will raise
the said costs when taxed, be sold with the privity of &c. ; and let, out
of the money to arise by the said sale, and the said sum of £
cash, the said costs be paid as follows :— The costs of &c. ; and thereout
also let the amount of the said legScy duty be paid to the said Mr.
the petitioner's solicitor, upon production of the proper receipt.
And it is ordered, that one-fourth part of the residue of the said Bank
£Z per Cent. Annuities, after such last-mentioned sale (such fourth part
to be verified by affidavit), be transferred to the petitioner the plaintiff"
N. B., and that one other fourth part of such residue be transferred &c.
223. Order under Infants Settlement Act.
In the matter of E. H. T., an infant.
And in the Matter of an Act &c.
Upon the application {k) of the said E. H. T. by A. B. her next
(*) See onte, p. 80.
142 ORDERS.
friend, and upon hearing &c., and &c. read, and the judge to whose
Court this matter is attached being of opinion that the settlement pro-
posed to be efiected by the indehture hereinafter mentioned is a proper
settlement to be made upon or in contemplation of the intended mar-
riage of the said infant E. H. T. with C. E. of &c. of the property of
such infant comprised therein, and that the indenture to be made be-
tween &c., identified by the signature of the chief clerk of the said
judge in the margin of the engrossment thereof, is a proper indenture for
giving effect to such settlement, doth, pursuant to the said act of parlia-
ment, sanction and approve of the same ; and doth order that the said
E. H. T. be at liberty, upon or in contemplation of her marriage with
the said C. E., to execute such indenture accordingly.
[If the order is made in a suit in which the infant is a ward of
Court as well as under the act, the order mill go on to order, — ]
" That upon the due execution of such indenture by the said E. H. T.
and C E. (such execution to be certified by the chief clerk of the said
judge), the said C. E. may be at liberty to intermarry with the said
E. H. T."
225. Special Order confirming Marriage Settlement, under the
Infants Settlements Act, and in Causes.
In the matter of an act of parliament made and passed in
the session holden in the eighteenth and nineteenth years
of the reign of her present Majesty Queen Victoria, in-
tituled " An Act to enable Infants, with the Approba-
tion of the Court of Chancery, to make binding Settle-
ments of their Real and Personal Estate on Marriage,"
And between P. Yf*. L. an Infant, by &c.
her next Friend Plaintiff,
and
T.G. &c Defendants.
And between &c. [titles of other causes.]
Upon the petition of the plaintiff P. W. L. by &c. on &c. preferred
&c., and upon hearing the respective counsel for the petitioner and for
the above-named defendants T. G. and J. L. and for L. P. in the peti-
tion named, upon reading the said petition, the probate of the will of
J. W. deceased, the testator in the two first-mentioned causes, the said
order dated &c., an affidavit of &c. filed &c., an affidavit of &c. filed &c.,
a consent in writing under the hand of J. J. to act as a trustee of the
settlement to be made on the marriage of the said plaintiff the said
P. W. L. with the said L, P. [and the consent of the other trustee], an
ORDERS. 143
affidavit of &c., and the exhibits (A.), (B.) and (C.) therein referred to,
being drafts of the engrossments of the indentures hereinafter mentioned,
and this Court being of opinion that the settlement proposed to be
eflFected by the indentures hereinafter mentioned is a proper settlement
to be made upon or in contemplation of the said intended marriage of
the said infant petitioner with the said L. P. of the property of the said
infant petitioner comprised therein, and that the three indentures marked
respectively (A.), (B.) and (C), the first of which is intended to be
made between &c., the second of which deeds is intended to be made
between the said infant plaintifi" P. W. L. of the first part &c., and the
third of which deeds is intended to be made between the said P. W. L.
of &c., and which three indentures are respectively identified by the sig-
natures of the chief clerk of the judge to whose Court these causes are
attached in the margin of the respective engrossments thereof, are proper
indentures for giving efiect to such settlement: this Court doth, pursuant
to the said act of parliament, sanction and approve of the same, and doth
order that the said infant petitioner P. W. L. be at liberty, upon or in
contemplation of her marriage with the said L. P., to execute the said
indentures accordingly ; and it is ordered that J. H., the receiver in the
fifthly above-mentioned cause, do pay out of the monies arising from the
rents and profits of the real estates of the petitioner P. W. L. now in his
hands the sum of ^ to the said J. H. D. to be applied by him for
an outfit for the petitioner, and for other necessary purposes for the
benefit of the said infant petitioner P. W. L., and that the said receiver
be allowed the same on passing his accounts in the said fifth above-
mentioned cause. And it is ordered that it be referred to the proper
taxing-master of this Court to tax the petitioner her costs, charges and
expenses incurred in the fifthly-mentioned suit, and also to tax as be-
tween solicitor and client the costs of the said defendant J. L. from the
foot of the last taxation of costs in the said last-mentioned cause, and
also to tax the petitioner her costs, charges and expenses incurred and to
be incurred in reference to the settlement on the petitioner's marriage,
and in the preparation and completion thereof, including therein the
costs of the petition of the said L. P., upon which the said order of the
day of last was made and consequent thereon, and of this
petition and consequent thereof, and also to tax the costs of all the
above-named defendants, also of the said L. P. of this petition and con-
sequent thereon. And it is ordered that the said taxing-master do
certify the total amount of the said costs, and costs, charges and ex-
penses. And it is ordered that so much of the £ Bank £3
144
ORDERS.
per Cent. Annuities standing in the name of the Aceountant-General of
this Court in trust as with any sum of cash arising from dividends on
the said £ like Annuities will raise the total amount of the said
costs &c. be sold with &c. And it is ordered that, out of the money to
arise by the said sale and the said cash (if any), the said costs &c, be
paid as follows,— the costs &c. of &c. to &c. And it is ordered that
the order made in the fifthly-mentioned cause for inyestment of the cash
from time to time placed to the credit of the said last-mentioned cause be
continued.
( 145 )
CHAPTER XII.
Miscellaneous Forms.
226. Special Case.
In Chancery.
Lord Chancellor.
Vice-Chancellor
Between X. Y. &c Plaintiffs,
and
T.U. &c Defendants.
The special case agreed on by the above-named parties, pursuant to
the statute passed in the session of parliament holden in the
thirteenth and fourteenth years of the reign of her present Ma-
jesty, intituled " An Act to diminish the Delay and Expense
of Proceedings in the High Court of Chancery in England."
1. By an indenture, dated &c. [set forth the deeds and facts succinctly
with reference to which the opinion of the Court is required"].
2. The plaintiff submit &c.
3. The defendants contend &c.
4. Under the circumstances aforesaid, it has been determined by the
plaintiffs and defendants to concur, and they do respectively concur, in
the statement of facts herein contained for the opinion of this Honor-
able Court thereon, under the provisions of the above-mentioned act.
The parties therefore pray the opinion of this Honorable Court,
Whether &c. (a).
A. B. \counseVs name] for, the plaintiffs.
C. D. [counsel's name] for the defendants.
227. Concise Statement, and Interrogatories for Examination of
Plaintiff.
In Chancery.
Between R. D. &c. .... Plaintiffs,
and
W. D. &c Defendants.
The subjects on which discovery is sought by the defendant W. D.
(o) Prac. vol. 1, p. 417.
L
146 MISCELLANEOUS FOEMS.
from the-examination of the plaintiffs to the underwritten [or
annexed] interrogatories are —
1. The nature of the title of to the hereditaments comprised in
the indenture of settlement, dated &c. in the bill mentioned.
2. The time of the marriage of of
3. The age of the said at the time erf his executing the said set-
tlement (6).
Interrogatories to be exhibited for the Examination of the Plaintiffs^
at the Instance of the Defendant W. D.
1. At the date of the indenture &c. was R. D., the alleged settlor
therein named, seised &c.
[Here follow the interrogatories.']
[Counsel's signature,"]
'228. tjertifctcte of Accounlant-Oeneral tyf Monet/ paid into Court,
under Raiheay Act.
I do hereby certify that pursuant to acts of parliament, intituled "The
Lands Clauses Consolidation Act, 1845," and " The Railway
Act, 1854," the Railway Company have paid into the Bank of
England the sum of £ which is placed to my account as Accoun-
tant- General, and to the credit of Ex parte the Railway Com-
pany, the account of &c. in the books kept at the Bank and in my
office, as appears by the receipt of Mr. one of the cashiers of the
Ban^, dated &c. hereto annexed.
W. R. Accountant- General.
liOndon, the day of 1857.
Received pursuant to " The Lands Clauses Consolidation Act, 1845,"
of the Railway Company the sum of £ which money is
placed to the account of W. R. as Accountant-General of the Court of
Chancery, and to the credit of Ex parte &c., the account of &c. in the
books kept at the Bank for the suitoi^ of the said Court of Chancery.
For the Governor and Company of the Bank of England.
J. P.
£
Entered, H. T.
(6) 15 & 16 Vict. c. 86, ». 19. A con- licitor.
cise statement and the accompanying in- If the concise statement, on account of
terrogatories are engrossed on parchment, its length, or on any other ground, should
and filed with the proper record and writ not be prefixed to the interrogatories,
clerk, and a stamped copy should after- then the latter may be annexed to the
wards be delivered to the plaintiff's «o- doncise statement
MISCELLANEOUS FORMS. 147
229. Admissions of Documents and Facts.
[Title of Cause.]
We, the UHdersigned solicitors for the above-named do hereby
undertake on behalf of the said to admit (c) upon the hearing of
this cause, and all subsequent proceedings therein, the execution of the
several documents and the facts following (that is to say),
Dated the day of 1857.
230, Ol^gctions to Taxation of Bill of Costs by Taxing-Master.
In OhapQ^y.
H. V. S.
Objectic«Js taken on behalf of Uie plaintiffs to the disallowance of
certain itepis on the taxation of the bill of costs of the plaintiffs
by the taxing-master to whom the taxation of the said
coslB is referred by the order of &c.
The plaintiffs (d) object to the disallowance by the said taxing-master
of the several items hereinafter set forth and referred to : —
Class 1.
[Items.']
Class 2.
[Items.]
Class 3.
[Items.]
As to the items in Class 1, they have been altogether disallowed ; but
they ought, as plaintiffs submit, to have been allowed.
As to the items in Class 2, the taxing-master has only allowed two-
thirds thereof respectively ; whereas the plaintiffs submit they ought to
have been allowed the whole of such items.
As to the items in Class 3, the master has only allowed half thereof;
whereas he ought to have allowed the whole of such items.
(c) In drawing up any decree or order, in the margin of the order before the same
wherein admissions are entered as read, can be passed by the registrar,
the document containing the admissions {d) See 12, 13 and 14 of the Orders of
must be 61ed in the Report Office, and a 1st of June, 1854.
note thereof made by the Clerk of Reports
l2
148 MISCELLANEOUS FORMS.
231. Docket of Enrolment of Decree.
Whereas (e) heretofore (that is to say), in or as of Hilary Term, in the
year of our Lord 1856, A. B. complainant, exhibited his bill of complaint
in the High and Honorable Court of Chancery against C. D. and E. F.,
thereby praying: — 1. That &c. \here follows prayer ofhiU}.
And the said defendants being duly served with copies of the said bill
appeared thereto ; and whereas the said complainant filed interrogatories
for the examination of the said defendant C. D. in answer to the said
bill, to which said bill the said last-named defendant put in his answer,
as in and by the said bill and answer, duly filed and remaining as of
record in the said Court, will more fully and at large appear ; and the
said cause coming on &c. to be heard and debated before the said Court,
in the presence of counsel learned on both sides, and the pleadings of the
said cause being openedj upon debate of the matter and hearing an affidavit
of &c., an affidavit of &c. and the proofs taken in the cause read, and
what was alleged by the counsel on both sides, the said Court did order,
that the said cause should stand for judgment, and the said cause stand-
ing for judgment on &c. in the paper of causes, in the presence of counsel
learned on both sides, the said Court did order, that the plaintiff's bill
should stand dismissed out of the said Court, with costs to be taxed by
the proper taxing-master of the said Court &c. : It is therefore this present
day, that is to say, on &c., in the twentieth year of the reign of her Ma-
jesty Queen Victoria, and in the year 1856, by the Right Honorable
Robert Monsey, Baron Cranworth, of Cranworth, in the county of Nor-
folk, Lord High Chancellor of Great Britain, and by the High and Ho-
norable Court of Chancery and the power and authority thereof, ordered
and adjudged, that the plaintiff's bill do stand dismissed out of this Court,
with costs to be taxed by the proper taxing-master of this Court &c.
Cranworth, C,
I have inspected this docket, and hereby certify
that the statement of pleadings and order
herein contained is correct.
Fred'' Bedwell,
Clerk of Records and Writs, at the request
of defendant C. D.
(c) Prac. vol. 2, pp. 784, 788; 1st and As to entering caveat against enrolling
2nd Orders of the 17th of March, 1843 ; a decree or an order, see Prac vol. 2,
and Orders of the 7th August, 1852, con- p. 790.
cerning enrolments.
MISCELLANEOUS FORMS. 149
232. Certificate upon Petition for leave to Appeal to the Souse of
Lords in Forma Pauperis.
We, the undersigned, do hereby certify to all to whom it may concern,
that J. S. is a very poor man, and that we believe his affidavit, wherein
he swears that he is not worth five pounds in the world, except his
wearing apparel, and the subject matter in the suits therein mentioned,
is true.
Dated &c.
E. F. . . Minister of &c.
G. H.
J y J Churchwardens of &c.
K. L. , ^
■lyi -Kj J Overseers of &c.
233. Certificate of Service of Notice of Intention to Appeal to the
House of Lords.
W. J., clerk to Messrs. of &Cr, solicitors for the within-named
appellant M. D., hereby certifies that on the day of instant
he served a notice on Mr. J. E., the solicitor of the within-named re-
spondent C. D. ; and on the day of instant he also served a
notice on Mr. R. S., the solicitor of the within-named respondent E. F.
that on the day of instant, or as soon after as might be,
a petition of appeal would be presented to the House of Lords on behalf
of the said appellant against the decree or order complained of.
Dated &c. W. J.
234. Case on Appeal to the Mouse of Lords.
In the House of Lords.
On appeal from the High CoHrt of Chancery.
Between A.Ti. ..... . Appellant,
and
C. D. and E. F. . . Respondents.
Case of the appellant A. B. [or the respondent C. D.]
In the year &c. [state the case in distinct paragraphs'].
The appellant has appealed against the whole of the said decree, which
he humbly hopes will be reversed [or Jbut the respondent humbly
hopes that the said appeal will be dismissed with costs], for the following
(amongst other)
Reasons : —
First. Because &c.
Secondly. Because &c.
[Signatures of counsel.}
150 MISCELLANEOUS FORMS.
235. Examination of a Married Woman entitled to Fund in Court,
and Certifieate^
In Chancery.
Between C. F. Plaintiff,
and
T. F. &c Defendants.
The examination of L. C, wife of the defendant M. C, taken pur-
suant to an order made in this cause dated the 21st day of July,
1854, to us and others dii'ected.
Whereas by the said order of the said 21st day of July, 1854, it is
ordered that [the petitioner] L. C, the wife of [the petitioner] M. C,
should attend before A. B.^ C. D., E. F. and G. H., or any two of them,
•who were to examine her secretly and apart from the said M. C. her
husband, to whom and in what manner and for what purpose she was
willing and desirous that the sum of £ in the said order mentioned,
and also the sum of £ should be transferred, paid, applied or dis-
posed of; and the said [the commissioners], or such of them as should
so examine her, were to take such examination in writing, which was to
be signed by her and certified by them, and the signing of the said
examination and certificate was to be verified by affidavit ; and it was
ordered that the further hearing of the said petition as respects the said
legacy of £ and the interest due in respect thereof should stand
over until after the return of such examination and certificate : Now the
said L, C, the wife of the said M. C, having been solely and separately
examined by the said and apart from her said husband M. C,
as to whom and in what manner and for what purpose, she is wiUing and
desirous that the sums of £ and £ severally mentioned in the
said order shall be paid, applied or disposed of, and the said order having
been read over, and the purport and effect thereof explained to her, for
answer thereto, saith, that she is willing and desirous that the said sums
of ^ and £ should be paid to the said M. C. for his own use,
and that she the said L. C. doth hereby freely and voluntarily consent
that the same be paid to him accordingly.
Witness, . L. C.
In Chancery.
Between &c. [title of cause].
To the Right Honorable the Master of the Rolls.
We do hereby certify unto your Honor, that pursuant to an order
made in this cause, bearing date, &c., we have been attended by the de-
MISCELLANEOUS FOBMS. 151
fendant I«. C, the wife of the defendant M. C., who resides at &c., an^
we hav^, in pursuance of the said order, examined the said defendant
L. C. separately and apart from the said M. C, her said husband, tq
whom and in what manner and for what purpose she the said L. C, was
willing and desirous that the sums of £ and £ severally men-
tioned in the said order should be tr&nsferred, paid, applied or disposed
of; and we did at the same time read the said order to "her and explain
the purport and effect thereof to her ; and we certify unto your Honor,
that the said L., C. did on such her examination say and declare she was
willing and desirous that the said sums of £ and £ should
be paid to the said defendant M. C. her husband, to and for his own use
and benefit; and she did tj^ereby freelj' and voluntarily consent that the
same be paid to him accordingly ; and we took down such examination,
declaration and consent of the said defendant L. C in writing, and she
thereupon signed the same as thereby now appears. Witness our hands
and seals this day of 18 (/).
A. B. (l,s.)
C, D. (L.S.)
Witness,
236. Certificaie of Examination of a Married Woman under the
Settled Estates' ^ct.
In the matter of &c.
I, whose name is hereunder signed, do humbly certify, that Jane,
the wife of T, H, of &c., has been separately examined, apart from her
husband, by me, as to her knowledge of the nature and effect of the in-
tended application by A. B. in these matters for liberty to [here state the
words of th? intended application] in yrhicla ghe ig interested : and I fur-
(/) Prac. voir 1, pp. 91 — 93. missioniere and of an attesting witness.
Where a feme covert is entitled to a The commissioners then prepare a certi-
Bum of money in the hands of the Ac- ficate of the execution of the order, and
countant-General, exceeding 2001., not of the examination of the feme covert,
settled for her separatg use, and she is which U usually writteiJ at thp foot of
unable to attend in Court to give her the examination', and signed by the act-
consent to tjie same being paid to hpr ing cpipmissionefs, in tfie presence of an
husband, the Court will appoint coipmis- attesting* witness : and then the execu-
sioners for that purpose, two of whom tion of the examination, and certificate,
must attend and tajte her eisamination j must, be verified by the afi4ayit pf the,
upon which occasion they must read over witness, and annexed thereto as an ex-
and explain the order to her, and her hibit: the affidavit and exhibit must be
examination thereon must be taken down filed at the Record and Writ Clerk's
in writing, and read over and explained Ofljce, an4 an office copy talfep, to j)e
to her, after which she must sign her read upon the application for an ord^r for
name thereto in the presence of. the com- payment of the poney.
152 MISCELLANEOUS FOEMS.
iter certify, that she is aware of the nature and effect of the said intended
application, and is desirous that the same should be made (g) [or, and
that she freely desires to consent to the same].
A. B.
Dated &c.
Witness,
JUKATS.
237. Where Answer or Affidavit sworn at Record and Writ Clerk's
Office.
Sworn [by the defendant A. B. or by the defendants or deponents A.
and B.] at the Record and Writ Clerk's Office, Chancery Lane, in the
county of Middlesex, before me,
238. If before a London Commissioner.
Sworn &c. at my house [or chambers]. No. Field Court, Gray's
Inn, in the county of Middlesex, before me,
A. B.
A London Commissioner to administer
Oaths in Chancery.
239. Or if in the Country.
Sworn &c. before me,
CD.
A Commissioner to administer Oaths
in Chancery in England.
240. Where the Guardian of an Infant swears to the Answer.
Sworn &C. by A. B., the guardian of the infant defendant as-
signed pursuant to an order dated the day of .
241. Where the Defendant or Deponent cannot Write.
Sworn &c. at &c. on &c., this answer [or affidavit] having been first
read over to the said defendant [or deponent], who appeared perfectly to
understand the same, and made his [or her] mark thereto in my presence,
before me,
(g) Frac. vol. 2, pp. 1385, 1393 ; 19 & must be proved by the usual affidavit of
20 Vict. c. 120, 9. 37. the attesting witness to his signature.
The signatiure of the commissioner «
MISCELLANEOUS FORMS. 153
242. Where a Married Woman Answers separately from her
Husband.
Sworn &c., by &c., pursuant to an order dated &c., whereby the said
is at liberty to answer separate from her husband, before me,
The following Forms of Writs are given in the Schedule to the Orders
of May, 1845.
Subpoena to hear judgment.
Subpoena for costs.
Subpoena to testify viva voce in Court.
Subpoena ad test, and subpoena duces tecum.
2%e following Forvis of Writs are given in the Order of the 10th of
May, 1839. n
Writ of fieri facias on a decree or order for payment of money.
Writ of fieri facias for payment of money and interest.
Writ of fieri facias for payment of money and costs.
Writ of fieri facias for payment of money, interest and costs.
Writ of fieri facias for payment of costs.
Writ of elegit on a decree or order for payment of money or money
and interest.
Writ of elegit for payment of costs.
Writ of elegit for payment of money and costs.
Writ of elegit for payment of money, interest and costs.
Writ of venditioni exponas.
And the forms of writs of attachment, sequestration, distringas and of
ne exeat regno are to be found respectively in the Prac. vol. 1, p. 316,
and vol. 2, pp. 815, 1272 and 1288.
The following Forms of Writs are given in the Order of the IQth of
July, 1857.
Fieri facias de bonis ecclesiasticis.
Fieri facias to the Archbishop, de bonis ecclesiasticis, during the va-
cancy of a Bishop's see.
Writ of sequestrari facias.
( 154 )
CHAPTER XIII,
Forms of Proceedings in Judges' Chambebs.
Section I.
SUMMONSES.
Preliminary Observations^
Before instituting a suit by summons, under the 45th or 47th section
of the 15th and 16ui of Vict. c. 86, the practitioner should satisfy himself
that the case is one which can be properly dealt with, by an order made
under the authority thereby conferred upon a judge at chambers.
For instance, in taking the accounts under the usual order obtained on
summons, an executor cannot be charged with wilful default ; Blaheley
V. Blaheley, 1 Jur. N. S. 368, V. C. K. ; In re Fryer, Martindale r.
Picquot, 3 Jur. N. S. 485, V. C W. ; and the judge has no jurisdiction
to set aside a release in a suit by summons. Acaster t. Anderson, 19
Beav. 161 ; 24 L. J. 437. See also Mump v. Oreenhill, 20 Beav, 512;
1 Jur. N. S. 123; 24 L. J., Chan., 90. And it seems that the Court
cannot do more than give effect to the order, or decide any questions
beyond the scope thereof, by availing itself of the provision of the 20th of
the General Orders of the 10th of October, 1852; West t. La'mg, 3
Drew. 331 ; but in Mutter v. Hudson, 2 Jur. N, S. 34, V. C. Stuart
determined, that the judge had jurisdiction to direct an inquiry to be
added to the order, as to whether a trustee had granted leases of the tes-
tator's estates in accordance with the trusts of the will.
Where a simple contract creditor obtained an order to administer an "
intestate's es'tate, and after having had notice that the assets were not suf-
ficient to pay a specialty creditor and the costs of the administration, he
persisted in prosecuting his suit ; it was held, that the assets must be ap-
plied, first, in paying the costs of the administratrix, then in payins the
plaintiff's costs down to tbe notice, and that the residue must be paid to
the specialty creditor. Sullivan v. Sevan, 20 Beav. 399.
Where a party, made a defendant, is out of the jurisdiction, he must
be sei-ved with notice of the decree made on hearing of the summons.
Strong y. Morse, 22 L. J. 917, M. R.
The judge will, after order upon summons, restrain the prosecution of
an action against an executor in like manner as in the case of a decree
obtained in a suit by bill. Gardner v. Garrett, 20 Beav. 469. And if
the administration order will effect all that can be obtained under a de-
SUMMONSES. 155
cree in a suit subsequNitly instituted by bill, the proceedings in the latter
suit will be stayed on payment of the plaintiff's costs. Ritchie v. Sum-
berstone, 22 L. J. 1006, V. C. W.
243. Originating Summons for Administration of Estate,
No. 1.
In Chancery.
In the matter of the estate of John Thomas, late of the parish
of A. in the county of B., deceased.
Joseph Wilson
against
William Jackson.
Upon the application (a) of Joseph Wilson, of &c., who claims to be
a creditor upon the estate, [or legatee, or annuitant, or one of the next of
kin] of the above-named John Thomas (6), let William Jackson, the
executor [and devisee in trust empowered to sell the real estate] of the
said John Thomas, attend at my chambers 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 [real and]
personal estate of the said John Thomas by the High Court of Chancery
should not be granted.
Dated the day of 185 .
Note. — If the above-named William Jackson does not attend either in
person or by his solicitor at the time and place above-mentioned,
such order will be made in his absence as the judge may think
just and expedient.
This summons was taken out by A. and B., of &c., solicitors for the
above-named Joseph Wilson.
244. Originating Summons for Guardian and Maintenance of
Infant.
No. 2.
In ChancCTy.
In the matter of John Thomas, an infant.
Let all parties concerned (c) attend at my chambers in on
(o) See Schedule F. to Orders of 7th visee of a real estate, devised to him
August, 1852. This application must be " sulqect to the payment of the testator's
supported by a proper affidavit. For the debts.funeral and testamentary expenses,"
form adapted to the particular case, see must be considered a trustee empowered
the chapter on " Affidavits." to sell within the meaning of the 47th
(i) According to the report of the case section of the 15 & 16 Vict c. 86.
of O^denv. iowry, 25L. J., Ch. 198, Vice' (c) This summons is, ordinarily, not
Chancellor Kindersley held, that the de- served on any one in the first instance.
156 SUMMONSES.
the day of at of the clock in the noon, on the
hearing of an application on the part of the above-named John Thomas,
of &c., an infant under the age of twenty-one years, by A. B., of &o., his
next -friend, that C. D., of &c. may be appointed the guardian of his
person during his minority, and that a proper person may be appointed
to receive the rents and profits of his real estate, and that a sum may be
allowed for his maintenance and education, during his minority.
Dated &c.
To
Note. — If you do not attend either in person or by your solicitor at the
time and place above-motioned, such order will be made and
proceedings taken as the judge may think just and expedient.
This summons was taken out by A. and B., of &c., solicitors for the said
John Thomas.
245. Summons under the Charitable Trusts Act.
No. 3.
In the matter of the Charity, and of the Charitable Trusts
Act, 1853, [and (d) the Charitable Trusts Amendment Act,
18.55.]
[Commencement as in No. 2] an application on the part of A. B. and
C. D. that an order may be made for [here state terms of required order
in the words of the certificate of the commissioners'], pursuant to the
(<2) The title of the first act would ap- the object were merely the addition of
pear to be sufficient. See 18 8e 19 Vict. new rooms to an existing school-house,
c. 124, s. 1 ; Prac. vol. 2, p. 1336. Re Ford's Charity, 3 Drew. 324, V. C. K.
A legacy given generally to an unen- The sanction required is not that the
dowed charitable institution, supported commissioners approve of the application
in part by voluntary contributions, is not being granted by the Court, but that they
within the Charitable Trusts Act, 1853. approve of the application being made.
In re Wilson, 19 Beav. 594. lb.
And the eissent of the charity commis- The meaning of section 28 of the Cha-
8io:iers is not requisite to an application ritable Trusts Act, 1853, is to confer on
for the disposal of money paid into Court the judges at chambers the same juria-
by a railway company on the purchase of diction as before the passing of the act
land belonging to a charity. In re Lister's they could have exercised in a suit re-
Hospital, 6 De G., M. & G. 184 ; 4 W. gularly instituted or upon petition. Con-
Rep. 156. sequently, where a Vice-Chancellor had
If the application be for a new dispo- in chambers appointed new trustees of a
sition of charity funds, there must be the charity, and the surviving trustee was a
previous sanction of the charity commis- lunatic, it was held, that he might also in
sioners. Therefore where an application chambers make an order under the Trus-
had for its object, the erection of a new tee Act vesting the charity property in
school-house out of the charity funds, it the new trustees. Re Davenports Charity,
was held, that it must have such previous 4 De G., M. & G. 839, L. C.
sanction, though it might be otherwise if
SUMMONSES. 157
certificate of the Charity Commissioners for England and Wales, dated
the * day of 185 .
^Conclusion as in No. 2.]
246. Indorsement on originating Summons where Parties not Served.
No. 4.
day, the day of 185 (e), at ofthe clock in
the noon, is appointed for the parties who have not been served
■with this summons to attend at the chambers within mentioned.
Dated &c.
[The judge's name.]
247. Summons to amend Originating Summons and Duplicate.
No. 5.
In Chancery.
Between A Plaintiff,
and
B Defendant.
Let all parties concerned attend at &c., on &c., at of the clock
&c., on the hearing of an application on the part of the above-named
plaintiff, that the original summons issued from and under the seal of my
chambers, dated the day of , may be amended by [here state
nature of amendment], and that the duplicate of the said summons filed
with the Record and Writ Clerks may be amended accordingly ; and
that the costs of this application may be costs in the cause.
Dated &c.
[N'ame of judge.]
This summons was taken out by &c., of &c., solicitors for the said
plaintiff.
To the above-named defendant
248. Summons for Leave to amend Sill.
No. 6.
[Comm,encement as in No. 5] an application (/) on the part of the
plaintiff that he may be at liberty to amend his bill as he shall be advised
on or before the day of next.
[Conclusion as in No. 5.]
(e) By the 6th Order of 16th October, stamped for service, and sealed at the
1852, this indorsement is to be made both judge's chambers.
on the original summons and the copies (/) SeePrac. vol. 1, p. 276, and General
158 SUMMONSES.
249. Summons for further Time to Answer (^g).
No. 7.
[^Commencement as in No. 5] an application on the part of the defen-
dant that [he] may have one calendar month's {A) [or weeks]
further time to plead, answer or demur, not demurring alone to the
plaintiffs bill ; and that the costs of this application may be costs in the
cause.
[Conclveion as in No. 5.]
250. Summons for Leave to put in a Voluntary Answer.
No. 8.
[Commencement as in No. 5] an application on the part of the defen-
dant that [he] may have leave to put in a plea or answer to the
plaintiff's bill on or before the day of next ; and that the
costs of this application may be costs in the cause (J).
[Conclusion as in No. 5.]
251. Summons by Plaintiff for further Time to Answer Inter-
rogatories filed by the Hefevdant.
No. 9.
[Commencement as in No. 5] an application on the part of the plain-
tiff for one calendar month's [or weeks] further time to answer the
interrogatories filed in this cause by the said defendant (k) for the
examination of the said plaintiff; and that the costs of this application be
costs in the cause.
[Conclusion as in No. 5.]
Orders of May, 1845. The application tiff's bill. Hunter v. NochoUs, 6 Hare,
to a judge at chambers is made when the 12 j 2 Phil. 510, on appeal, S. C. ; and see
plaintiff is not entitled to obtain an order Newman v. White, 16 Beav. 4.
of course to amend. See Boger* v. Fryer, (A) See 12th Order of May, 1845.
2 Eq. Rep. 253, V. C. K., where a volun- (i) See 15 & 16 Vict c. 86, s. 13. If
tary answer has been filed under the 13th the defendant does not file an answer
section of 15 & 16 Vict c. 86. within twelve days (where interrogatories
{g) Where the understanding of the are not filed), he must apply for leave to
parties is, that, in consideration of the ex- put in one, which will be granted upon a
tended time granted, the defendant is to proper affidavit being made. See form in
be confined to answering, and not to be the chapter on " Affidavits." As to vo-
allowed to plead or demur partially, the luntary answer to an amended bill, see
order made on the summons should be, 71st Order of General Orders of 1845.
that the defendant should have the time {k) 15 8c 16 Vict. c. 86, s. 19.
granted "to answer only" to the plain-
SUMMONSES. 159
252. Suynmons to enlarge the Time for Closing Evidence.
No. 10.
• \^Commencement as in No. 5] an application on the part of the said
that the time for closing the evidence in this cause be enlarged
until the day of next ; and that the month during which any
witness who may make an affidavit is to be subject to cross-examination
be enlarged (?) for one calendar month [or for weeks] from the said
day of ; and that the costs of this application may be costs
in the cause.
[Conclusion as in No. 5.]
253. Summons to ^nktrge Time for Filing Affidavits on Motion for a
Decree.
No. 11.
lComm,encement as in No. 5] an application on the part of the defen-
dant that the time within which the said defendant may file affi-
davits (j») on the plaintiflF's motion for a decree may be enlarged until
the day of next, and that the seven days within which the plain-
tiff is bound to file affidavits in reply be enlarged until seven days from
the said day of ; and that the costs of this application may be
costs in the cause.
l^Conchision as in No. 5.]
254. Summons far Leave to File Exceptions to Answer.
No. 12.
{^Commencement as in No. 5] an application on the part of the above-
named PlaintifiF that he may have leave to file exceptions (w) for insuf-
ficiency -to the answers of the defendants A. B. and C. D. on or before
the expiration of the six weeks from the time when the answer of the de-
fendant £. F. to the plaintiff's amended bill shall have been filed.
{Conclusion as in No. 5.]
(I) IS & 16 Vict. c. 86, B. 38; Orders By the Orders of 7th of August, 1852
of June, 1854, and Januaiy, 1855 ; Prac. (24th), the defendant is only allowed four-
vol. 1, p. 720. Both parties to a suit may teen days after service of the notice to file
abstain from filing their afiidavits until his afiidavits and furnish the plaintiff or
immediately before the expiration of the his solicitor with a list thereof; and (25th)
time fixed for closing evidence ; and after the plaintifl' has seven days to file his a6Bi-
such time has expired the Court will not davits in reply. See Phillips v. Warde, 2
extend it, except under special circura- Jur. N. S. 608, V. C. S.
stances. Thompson v. Partridge, 4 De 6„ (n) East Anglian Railway Company v.
M. & G. 794 ; 17 Jur. 1 108. Goodvtin, 8 Jan., 1855, V. C. W., at cham-
(f») 15 & 16 Vict c. 86, s. 15. bers.
160 SUMMONSES.
255. Summons for Affidavit and Prodmtidn of DocumenU.
No. 13.
{^Commencement as in ■'No. 5] an application on the part of the ahovcr •
named for an order that the above-named do within
da,ys after the service of the order to be made upon this application, make
a full and sufficient affidavit, stating whether he has or has had in his
possession or power any, and if any what, documents relating to the
matters in question in this suit, and accounting for the same ; and that
the said do within seven days afterwards produce and leave with
the Clerk of the Records and Writs in whose division this cause is, such
of the said documents as by such affidavit shall appear to be in his
possession or power, except such of the same (if any) as he may by his
said affidavit object to produce, with the usual directions (o).
[Conclusion as in No. 5.]
256. Summons for Production.of Documents at Solicitor's Office,
under 15 ^ 16 Vict. c. 86.
No. 14.
[Commencement as in No. 5] an application on the part of the above-
named for an order that the above-named do within
days after the service of the order to be made upon this application,
make a full and sufficient affidavit (p), stating whether he has or has had
in his possession or power any, and if any what, documents relating to
the matters in question in this suit, and accounting for the same ; and
that the said do at all seasonable times, upon reasonable notice,
produce at the office of at such of the said documents as
by such affidavit shall appear to be in his usual possession or power, ex-
(o) Prac. vol. 2, p. 964 j 15 & 16 Vict A defendant can be required on sum-
c. 86, ss. 18 and 20. mons to file an affidavit as to his posses-
Sect. 18, upon the application of the sion of documents, although he may have
plaintiff. answered the usual interrogatory with re-
Sect 20, " upon the application of a spect to documents not in his possession
defendant after a full and sufficient an- or power. Manby v. Sewicke, V. C. W.;
swer has been put in, where he is required and on appeal, 2 Jut. N. S. 672 ; 4 W. R.
to answer." 757.
The answer will he assumed to he suf- (p) No affidavit is necessary to support
iicient, although the time for excepting an application hy the defendant for pro-
has not expired, if exceptions have not duction of documents by the plaintiff
teen filed or an intimation given that it is under the 20th section. The Rochdale
intended to file exceptions. Walker t. Canal Company v. King, 15 Bear. 11.
Kennedy, 5 W. R. 396, V. C. K. Fioft v. Mullins, 16 Jur. 946, and M'lntoth
As to 19th section, see Sibbald v. Lowry, v. The Great Western Railway Company, 16
in note to Lafore v. The Falkland Islands Jur. 989, are overruled.
Company, 2 K. 8c J. 277.
SUMMONSES. 161
cept such of the same, if any, as he may by his said affidavit object to
produce, with the usual directions.
[Conclusion as in No. 5.]
257. Summons to consider sufficiency of Affidavit as to Documents.
No. 15.
[Commencement as in No. 5] an application on the part of the above-
named to consider the sufficiency of the affidavit of the above-
named filed in this cause on the day of
[Conclusion as in No. 5.]
258. Summons for Production of Documents admitted by Answer.
No. 16.
[Commencement as in No. 5] an application on the part of the above-
named plaintiff that the above-named defendant may be ordered, within
days after the service of the order to be made upon this applica-
tion (^r), to produce and leave with the Clerk of Records and Writs in
whose division this cause is, the documents admitted by his answer in
this cause filed the day of to be in his possession, and set
forth in the schedule thereto, with the usual directions.
[Conclusion as in No. 5.]
259. Summons for further Consideration of Matter and Cause
originating in Chambers.
No. 17.
[Commencement as in No. 5] an application on the. part of the above-
named plaintiff that this matter and cause, the further consideration
whereof was adjourned by the order dated the day of 185 ,
may be further considered.
[Conclusion as in No. 5.]
260. Summons to appoint Special Examiner.
No. 18.
[Commencement as in No. 5] an application on the part of the above-
named plaintiff [or defendant] that of may be appointed
(j) Prac. vol. 2, pp. 943, 944 ; and see N. S. 156 ; Wadeer v. East India Company,
Peile V. Stoddart, 1 M. & G. 192 ; Manby 2 Jur. N. S. 407 ! S. C. nom. Coorg v. East
V. Bewicke, 2 Jur. N. S. 671, Lds. Js. ; India Company, 25 L. J. 345, Lds. Js. ;
Gresley v. Mousley, 2 K. Sc J. 288 ; 2 Jur. Carew v. Davis, 21 Beav. 213.
U
162 SUMMONSES.
examiner (r) in this cause, for the purpose of taking the examination of
witnesses in this cause; and that the depositions authenticated by the sig-
nature of the said examiner, -when taken, may be transmitted by him to
the Record and Writ Clerks' OflSce of this Honorable Court, to be
there filed, pursuant to the statute in that case made and provided.
[Conclusion as in No. 5.]
261. Summons to proceed with Accounts, ^c. directed by Decree or
Order,
No, 19.
[Commencement as in No. 5] an application on the part of the above-
named plaintiff to proceed with the accounts and inquiries [and other
proceedings] directed by the made in this cause dated the
day of 185 .
[Conclusion as in No. 5.]
262. Chief Clerk's Summons for Witnesses, under Sect. 30 of the Act
16 ^ 16 Vict. c. 80.
No. 20.
Between &c.
is hereby summoned to attend at the chambers of at
Middlesex, on the day of 185 , at of the clock
in the noon, to be examined [or to be examined as a witness on the
part of the J, for the purpose of the proceedings directed by the
decree [or order] made in this cause bearing date the day of
185 , to be taken.
Dated this day of 185 .
Chief Clerk.
This summons was taken out by A. and B., of &c., solicitors for
263. Summons for Order as to Service of Notice of Decree on Infant.
No. 21.
[Commericement as in No. 5] an application on the part of the above-
named plaintiff that service of notice of the decree [or order] made in this
cause, bearing date the day of 185 , pursuant to the 8th
rule of the 42nd section of the Act 15 & 16 Vict. c. 86, upon A. B., who
is required to be served with such notice, and is an infant, may be made
by serving the same upon of &c., the fether of the said infant, and
(r) See ante, p. 61.
SUMMONSES. 163
•
by serving a copy of the order to be made upon this application with the
said notice.
\_Condusion as in No. 5.]
264. Summons for Order for Accounting Party to leave Accounts.
No. 22.
{^Commencement as in No. 5] an application on the part of the above-
named plaintiff [or defendant] that the above-named defendant [or
plaintiff] may be ordered, within days from the service of the order
to be made on this application, to leave in the chambers of situate
an account [or accounts] duly verified by affidavit of [here state
the words of the decree orMrder directing the account or accounts to be
taken,']
[Conclusion as in No. 5.]
265. Summons for Order for Leave to attend Proceedings.
No. 23.
[Commencement as in No. 5] an application (s) on the part of J. H.
(the customary heir of J. H., deceased, in the pleadings named) that the
said J. H. may be at liberty to attend the proceedings under the decree
dated &c., he undertaking to be bound thereby in the same manner as if
he had been originally made a party to this suit.
[Conclusion as in No. 5.]
266. Summons for Substituted Service of Notice of Decree.
No. 24.
[Comm,encement as in No. 5] an application (i) on the part of the
above-named plaintiff that service of notice of the decree made in this
cause, bearing date the day of 185 , on S. H. M., who is re-
quired to be served with such notice, may be made by delivering the
same to some member of his family at his dwelling-house, and that the
same may be deemed good service on the said 8. H. M.
[Conclusion as in No. 5.]
267. Summons for Order for Defendants to file Examination in
Answer to Interrogatories for his Examination, under Decree.
No. 25.
[Commencement as in No. 5] an application on the part of the plain-
(s) Hebblethwaitev.JTebblethiaaite, 29th Order 40 of 7th August, 1812 ; Doody v.
July, 1856, V. C. Wood at chambers. Higgins, 10th March, 1853, V. C. Wood
(<) 15 & 16 Vict ii. 86, s. 42; Kule 8, at chambers. •
m2 • '
164 SUMMON'SES.
tiflf that the defendants A, B. and C. D. may be ordered, within four
days after personal service of the order to be made on this application [or
on or before the day of next], to file their examinations in
answer to the interrogatories settled and allowed by the chief clerk's cer-
tificate dated the day of 185 .
[Conclusion as in No. 5.]
268. Summons for Leave to pay Money into Court.
No. 26.
[Commencement as in No. 5] an application on the part of the above-
named defendant that he may be at liberty on or before the day of
to pay into the Bank, with the privity of the Accountant-General
of this Court, to the credit of this cause, the sum of £ now in his
hands, and forming part of the personal estate of A. B., the testator in
this cause. •
[Conclusion as in No. 5.]
269. Summons to pay Money ordered to he paid to Attorney of
Party.
JiTo. 27.
[Commencement as in No. 5] an application (m) on the part of A. B.,
of &c., and C. D., of &c., that the sum of £ by the order made in
this cause dated the day of directed to be paid to the said
A. B., may be paid to the said C. D. as the attorney of the said A. B.
duly appointed under a power of attorney executed by the said A. B.
and bearing date the day of 185 .
[Conclusion as in No. 5.]
270. Summons for Delivery out of Deeds and for Payment of Money
into Court.
No. 28.
[Commencement as in No. 5] an application on the part of the plain-
tifi", that the clerk of the records and writs, in whose division this cause
is, may be ordered to deliver out to the above-named plaintiff the deeds
and documents deposited with him pursuant to the order, dated the
day of for the purpose of enabling the plaintiff to receive the sum
of £ secured by mortgage on the property comprised in such
(m) Re Hodgson, 15 January, 1857, V. C. ported by an affidavit of the due execu-
Wood at chambers. See Prac. vol. 2, tion of the power of attorney, and that it
p. 1323. The application must be sup- is still in force.
• SUMMONSES. 165
deeds, together with the interest thereon, and that the said plaintiff may,
■within seven days after he shall receive such principal money and inte-
rest [the amount thereof and date of receipt to be verified hy affidavif],
pay the same into the Bank, with the privity of the Accountant-General
of this Court, to the credit of this cause \if necessary, add, with usual
directions for investment and accumulation].
[Conclusion as in No. 5.]
271. Summons for Leave to hid at Sale by Auction.
No. 29.
[Commencement as in No. 5] an application on the part of the de-
fendant A. B., that he may have liberty to bid at the sale (a;) directed
by the decree [or order] made in this cause, dated the day of
[Conclusion as in No. 5.]
272. Summons to open Biddings.
No. 30.
[Commencement as in No. 5] an application on the part of A. B. of
&c., that the premises comprised in Lot 1, being part of the estates
directed by the decree in this cause, bearing date the day of
to be sold, may be resold, the said A. B. hereby proposing and submit-
ting to give £ for the same, being £ more than was bid for
the said lot at the former sale (y).
[Conclusion as in No. 6.]
(i) See Prac. vol. 2, p. 923. The Court should be no higher bidder, that the pur-
will not give leave to bid to the party chaser should be held to the purchase,
having the conduct of the sede. Seton on (j) Prac. vol. 2, p. 938.
Decrees, p. 608. A party to the cause, who Biddings will not be opened, except
is desirous of bidding, ought to obtain the under very special circumstances, after
leave of the judge at chambers for that eight days from the filing of the certifi-
purpose, otherwise tne bidding will be cate of sale : in such a case the ofiFer of an
re-opened, and the estate again oflFered advanced bidding is not sufficient to in-
fer sale. duce the Court to open biddings. Ware v.
In Sidny v. Ranger, 12 Sim. 118, where Watson, 2 Jur. N. S. 129, Lds. Js. ; 25 L.
a party to a suit, who was a solicitor and J., Ch. 1 99 ; on appeal from V. C. Stuart,
had the conduct of the sale, purchased 1 Jur. N. S. 1083. See also Osborne v.
under a feigned name. Sir L. Shadwell, Foreman, 2 Jur. N. S. 361, Lds. Js.; S. C.
V. C, after the purchase had been con- 25 L. J. 340, where Millican v. Vander-
firmed, ordered that the estate should be plank, 11 Hare, 136, is distinguished from
again offered for sale at the price at which that case,
it had been so purchased, and if there
166 SUMMONSES.
273. Summons for Leave to pay in Purchase-Money.
No. 31.
{Commencement as in No. 5] an application («) on the part of A. B.
of &c., the person declared by the certificate of the chief clerk made in
this cause, and bearing date the day of to be the purchaser
of lot part of the estates by the decree in this cause, bearing date
the day of directed to be sold, that he may be at liberty on
or before the " day of 185 to pay into the Bank, with the
privity of the Accountant-General of this Court, to the credit of this
cause, " The account Sec," the sum of £ the amount of his pur-
chase-money, and that thereupon he the said A. B. may be let into pos-
session of the rents and profits thereof, as from the day of
and tliat all usual directions may be given as to conveyance, and that the
money, when so paid in, may not be paid out without notice to the said
A. B.
{Conclusion as in No. 5.]
274. Summons to confirm Sale by Private Contract.
No. 32.
{Com,mencement as in No. 5] an application on the part of the plain-
tifi", that the contract entered into by the plaintiff with A. A. of &c.,
dated &c., for the sale to him of the lands and hereditaments therein
mentioned, being part of the hereditaments directed to be sold by the
decree, dated the day of for the price of £ be canied
into effect.
[Conclusion as in No. 5.]
275. Summons to discharge Receiver and vacate Recognizance.
*No. 33.
{Commencement as in No. 5] an application (o) on the part of the
above-named plaintiff, that A. B., the person appointed in this cause to
receive &c., be discharged from being such receiver, and that he do.
forthwith pass his final account, and pay the balance certified to be due
thereon into the Bank, as directed by the decree in this cause, bearinc
(«) See Prac. vol. 2, p. 927, as to sales he is satisfied with the title, inasmuch as
of estates under decree or order. the order will commence with a direction
This application was formerly made by that the purchaser is content with the
motion, it is now made at chambers. The title. See Seton on Decrees, p. 610.
purchaser should not, however, apply to (o) See Prac. vol. 2, p. 1014.
pay his purchase-money into Court until
SUMMONSES. 167
date the day of [or to the plaintiflF A. B.], and thereupon
that the recognizance, dated &c. entered into by the said receiver, and
C. D. and E. F. as his sureties, may be vacated, and that for such pur-
pose the proper officer may be ordered to attend his Honor the Master
of the Rolls with the record of such recognizance.
[Conclusion as i?i No. 5.]
276. Summons for Stop Order.
No. 34.
[Commencement as in No. 5] an application (6) on the part of A. B.
[the assi-gnee] and C. D. [the assignor'], that no part of the share or inte-
rest of the above-named C^D. in the sum of £ Bank £3 per
Cent. Annuities standing in the name of the Accountant-General of this
Court in trust in this cause, " The account &c.," or in the £ cash
in the Bank on the like credit, or in the interest to accrue on the said
Bank Annuities, be paid, transfen-ed or otherwise dealt with, without
notice to the said A. B., his executors or administrators.
[Conclusion as in No. 5.]
277. Summons for Leave to apprentice Infant.
No. 35.
[Commencement as in No. 5] an application (c) on the part of the
said infant A. B. by C. D. his next friend, that the said infant may be
apprenticed to E. F. of &c. upon the terms of an indenture of appren-
ticeship, to be approved of by the judge to whose Court this cause is
attached, and that upon the due execution of such indenture of appren-
ticeship (the same to be verified by affidavit), the sum of £ part
of the £ cash in the Bank on the credit of may be paid to
the said E. F. as the premium for such apprenticeship.
[Conclusion as in No, 5.]
278. Summons to substitute Next Friend.
No. 36.
[Commencement as in No. 5] an application on the part of the above-
named plaintiflF, that [upon] A. B. of &c, [giving security to answer the
(5) Prac. vol. 2, p. 1275, and General 283, V. C. K. Every well-drawn assign-
Order 3rd April, 1841. ment of a fund in Court ought to contain
This application can only be made at a power authorizing the assignee to use
chambers if the assignee concurs. See thenameof the assignor in relation to any
form of affidavit in support, in the chapter proceedings in the suit.
" Affidavits." See also Warhurton v. Hill, (c) Re Gregory, 28th March, 1856, V. C.
Kay, 70 ; Elder T. Maclean, 3 Jur. N. S. Wood at chambers.
168 SUMMONSES.
defendant's costs up to this time, in case the Court shall think fit to
award any such security, to be settled by the Judge in case the parties
difier], the said A. B. may be substituted as the next friend for the said
plaintiflF in the place of the above-named C. D.
[Conchesion as in No. 5.]
279. Summons to proceed on Petition adjourned from the Court to
Chambers.
No. 37.
[Commencement as in No. 5] an application on the part of A. B. and
C. D., the petitioners named in the petition in this cause, presented on
the day of 185 to proceed on the matters of the said peti-
tion, which were on the day of adjourned by the Court for
consideration in Chambers.
[Conclusion as in No. 5.]
280. Summons hy Creditor to have conduct of Administration Cause.
No. 38.
[Commencement as in No. 5] an application of A. B. of &c., who has
proved a debt against the estate of C. D. the testator in this cause, that
the conduct of the decree [or order] made in this cause, dated the
day of , may be committed to him in the place and stead of the
above-named plaintiif.
[Conclusion as in No. 5.]
281. Summons to 'proceed with Receiver's Account.
No. 39.
[Commencement as in No. 5] an application on the part of A. B. the
receiver appointed in this cause, pursuant to the decree dated the
day of and the order dated the day of , to pass his
account of rents and profits [and personal estate].
[Conclusion as in No. 5.]
282. Summons to pay Money to Persorilnl Representative of a
Creditor.
No. 40.
[Commencement as in No. 5] an application on the part of A. B. of
&o., the executor of C. D. late of &c. deceased, named in the certificate
of the chief clerk made in. this cause [or in the decree or order made in
this cause] dated the day of , that the sum of £ by the
SUMMONSES. 169
said decree [or order] and certificate directed to be paid to the said C. D.
may bo, instead thereof, paid to the said A. B. as his executor.
^Conclusion as in No. 5.]
283. Summons for leave to prove a Debt after the Time for Adjudica-
ting has expired.
No. 41.
[Commencement as in No. 5] of an application on the part of
that may be at liberty to prove a debt or claim against the estate of
the testator, in the decree [or order] named, for the sum of ^ ,
notwithstanding that the time for hearing and adjudicating upon debts or
claims due from or affecting the said estate has expired [and also that the
said may be paid out of the said estate a sum or dividend equal in
amount to that declared or paid to the other creditors (or claimants) of
or upon the said estate, vrhose debts or claims have been already adju-
dicated upon (d).]
[Conclusion as in No. 5.]
284. Summons under Settled Estates A ct, as to Insertion of Notice
in Newspapers.
No. 42.
In the matter of an act of parliament made and passed in
the session holden in the 19th and 20th years of the
reign of her Majesty Queen Victoria, intituled "An
Act to facilitate Leases and Sales of Settled Estates."
And in the matter of
[Com,mencement as in No. 5] an application on the part of A. B. of
&c., the petitioner in the above matters, for directions in what newspapers
the notices required by the above-mentioned act are to be inserted.
[Conclusion as in No. 5.]
(d) " Although the time has elapsed, Russ. 1 30 ; Clowes v. Waters, Lds. Js.,
yet the Court will let in«credit(ib at any March 17, 1854, MSS.j and David v.
time, while the fund is in Court ;" per Frowd, 1 M. & K. 200. Where an estate
Lord Eldon, C. ; Lashley v. Hogg, 11 Ves. has heen administered under a decree of
602 ; but the applicant must pay the ad- the Court, a creditor will not be allowed
ditional costs which may be occasioned to sue the executor at law. Dean v. Allen,
by his laches. See also AngeU v.Haddm, 20 Beav. 1.
1 Mad. 529! Gillespie v. Alexander, 3
170 AFFIDAVITS.
Section II.
285, Affidavit of Plaintiff , in support of an Administration Summons
hy Creditor (under 45th Sect. 15 ^ 16 Vict. c. 86).
In Chancery.
{Title as in 8um,mons.']
I, A. B. of &c. the ahove-named plaintiiF [or in case of partners one of
the above-named plaintiffs], make oath and say as follows : —
1. That the above-named E. F. was in his lifetime, and his estate still
is, justly and truly indebted to me [and to C. D. my partner in trade]
in the sum of ^ , for goods sold and delivered by me {and my said
partner] as upholsterers, to the order and for the use of the said £. F. in
his lifetime and at his request.
2. That the particulars of the charges or items composing the said sum
of £ are set forth in the paper writing now produced and shown to
me at the time of swearing this my affidavit, and marked with the letter
A., and that the charges therein contained are fair and reasonable, and
such as are customary in the trade of upholsterers.
3. That I have not [nor hath my said partner], nor any person or
persons by my [our or either of our] order, or for my [our or either of
our] use, to my knowledge or belief received any security for or on
account of the said debt.
4. That the said E. F. died on or about &c., having by his will dated
&c. [devised the whole of his real estate unto the above-named defend-
ants, and thereby empowered them to sell such real estate, and autho-
rized them to give receipts for the rents and profits thereof, and for the
produce of the sale of such real estate], and he thereby appointed the
said defendants executors of his said will, which was duly proved by
them in the Court of , on the day of , 18 ,
as I know from the perusal and inspection of an office copy of the said
will(e).
286. Affidavit in support of an Administration Summons iy a
Legatee.
I, A. B. of &c., the above-named plaintii]^^ake oath and say: —
[If a residuary legatee : — ]
1. That the above-named C. D. by his last will and testament, bearing
date the day of , 185 , gave all his residuary real and per-
sonal estate to the above-named defendant E. F., upon certain trusts for
(e) The part of this paragraph within tion of the real estate. 15 & 16 Vict,
brackets is applicable to cases in which c. 86, a. 47.
the act gives the right to an administra-
AFFIDAVITS. 171
the benefit of myself and of [state trusts of mill shortly to show mho is
entitled to residue], and appointed the said defendant executor thereof.
[-7/" a specific or pecuniary legatee : — ]
1. That the above-named C. D. by his last will and testament, bearing
date the day of 185 , amongst other things gave and be^
queathed unto me [here state the bequest to the plaintiff as nearly as
possible in the words of the mill ], and he thereby appointed the said
defendant executor of such his will.
2. That the said C. D. the testator departed this life on or about the
day of 185 , without having revoked his said will, and
the same was duly proved on the day of 185 , by the said
defendant in the Couft of , as I know from the inspection
of an office copy of such wiU, and of the probate act thereof.
3. That the said legacy or sum of ^ [or, if the suit relates to a
specific bequest, name the articles specifically bequeathed] has not [or
have not], nor has any part thereof, been paid [or handed over] to me,
or to any person to my order or for my use, to my knowledge or belief.
287. Affidavit in support of Administration Summons, by Next of
Kin.
In Chancery.
[Title as in summons.]
I, A. B. of &c., the above-named plaintiff^ make oath and say: —
1. That the above-named CD. died on or about the day of
185 , intestate.
2. That letters of administration of the goods, chattels and credits of
the said C. D. were on the day of 185 granted by the
Court of to the above-named defendant E. F., as I know from an
inspection [of an office copy] of the said letters of administration.
3. That the sole next of kin of the said C. D. living at his decease
were myself and
4. That no part of the said intestate's personal estate has been paid to
or received by me, or by any person by my order, or for my use, to
my knowledge or belief.
288. (No. 1.) Affidavit of Service of Summons originating Pro-
ceedings in Chambers.
In Chancery.
[Title.]
I of make oath and say as follows : —
1. I say that I did on the day of serve the above-
172 AFFIDAVITS.
named defendant [or of &c.] with a summons in this cause
and matter [or matter], bearing date the day of , issued from
and under the seal of the Chambers of the Master of the Rolls [or the
Vice-Chancellor ] [(/) and addressed to the said and
others] by delivering to and leaving with the said at [or
with (state what member of his family) of the said at his dwel-
ling-house, situate J a true copy of the said summons duly stamped
with a stamp (g) of the Record and Writ Clerks' Office, indicating the
filing of a duplicate of the said summons at the said office, and at the
same time showing the said the said summons, by which summons
the said was required to attend at the Chambers aforesaid, at
on the day of , at of the clock in the
noon, and show cause, if he could, why an order for the adminis-
tration of the (A) estate of the above-named should not be
granted [or in cases other than administration summonses instead of the
words, and show cause, ^c, as follows : on the hearing of an appli-
cation on the part of for the purposes therein specified].
2. And I further say, that there was at the foot of the copy of the
said summons so served, and at the foot of the said summons when so
produced as aforesaid, a memorandum or statement that such summons
was taken out by of solicitor for , and a notice that if
the said did not attend, either in person or by his solicitor, at the
lime and place mentioned in the said summons [or at the place men-
tioned in the said summons at the time mentioned in the endorsement
thereon], such order would be made and proceedings taken as the Judge
might think just and expedient.
3. And I further say (i), that there was, upon the copy so served,
an endorsement (A), dated the day of , under the seal of the
Chambers of the said Judge, whereby the day of , at
of the clock in the noon, was appointed for the parties who had
not been served with the said summons to attend at the said Chambers(Z).
(/) These vfords to be added in all (i) See 5th and 6th Orders of 16th
cases except administration summonses. Oct. 1852.
(g) 15 & 16 Vict. c. 86, s. 46. {I) This form, and the forms containing
Qi) Personal, or real and personal, as numbers within parentheses (1 to 19),
the case may be. are those contained in the Schedule to
(0 This to be added when the time the Regulations of the Judges, the num-
has been extended. bers between parentheses being those of
the forms in the Schedule ; see Appendix,
AFFIDAVITS. 173
289. (No. 2.) Affidavit of Service of Summons, not being a Summons
originating Proceedings in Chambers.
In Chancery.
[Title.']
I of make oath and say as follows : —
1. I say that I did on the day of serve Mr.
the solicitor for the above-named defendant [or for of &c.],
■with a summons in this cause [or matter], bearing date the day
of , issued from and under the seal of the Chambers of the
Master of the Rolls [or the Vice-Chancellor ], and addressed to
the said , by delivering to and leaving with the said [or
with of the said at his office, situate J, a true copy of
the said summons, and at the same time showing the said the said
summons, by which summons the said was required to attend at
the Chambers aforesaid, at on the day of ,
at of the clock in the noon, on the hearing of an application
on the part of for [state the object].
2. And I further say, that there was at the foot of the copy of the
said summons so served, and at the foot of the said summons when so
produced as aforesaid, a memorandum or statement that such summons
was taken out by of , solicitor for
290. (No. 3.) Affidavit as to Production of Documents, pursuant to
an Order {m).
In Chancery.
[Title.]
I of make oath and say as follows : —
1. I say I have in my possession or power the documents relating to
the matters in question in this suit set forth in [the first and second parts
of the] first schedule hereto annexed («). •
2. I further say, that I object to produce the said documents set forth
in the second part of the said first schedule hereto.
3. I further say, [state upon what grounds the objection is
made, and verify the facts so far as may be].
4. I further say, that I have had but have not now in my possession
(m) See sects. 18 and 20 of ] 5 & 16 Vict. only necessary when the deponent ohjects
t. 86. 'o *^^ production of some of the docu-
(n) The two parts of the Schedule are ments.
174 AFFIDAVITS.
or power the documents relating to the matters in question in this suit set
forth in the second schedule hereto annexed.
5. I further say, that the last-mentioned documents were last in my
possession or power on [state when].
6. I further say, Istate what has become of the last-mentioned
documents, and in whose possession they now are].
7. I further say, according to the best of my knowledge, remembrance,'
information and belief, that I have not now, and never have had, in my
own possession, custody or power, or in the possession, custody or power
of my solicitors or agents, or solicitor or agent, or in the possession, cus-
tody or power of any other persons or person on my behalf, any deed,
account, book of account, voucher, receipt, letter, memorandum, paper,
or writing, or any copy of or extract from any such document, or any
other document whatsoever, relating to the matters in question in this
suit, or any of them, or wherein any entry has been made relative to such
matters, or any of them, other than and except the documents set forth
in the said first and second schedules hereto.
Note. — If the party denies having any, he is to make an affidavit
inform of the 1th paragraph, omitting the exception.
AFFIDAVITS.
175
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MISCELLANEOUS FORMS.
201
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No. for £
&c., or any other Exchequer Bills for which the same may be exchanged,
with " The Official Trustees of Charitable Funds."
Forms of Orders as to Charitable Funds where any Disabi-
lity IN THE Trustees exists, and where the Order is also
made under the Trustee Act, 1850, or The Trustee Ex-
tension Act (15 & 16 Vict. c. 55).
334. Commencement of Order in accordance with Section 37 of the
Trustee Act, 1850,
And it appearing that the petitioners are beneficially interested in the
Stock after mentioned \or and it appearing that the petitioners have been
duly appointed as trustees of the Stock after mentioned] ; and it appear-
ing that the Stock holden in trust for the said charity comprises the
£ Bank £S per Cent. Annuities standing in the books of the
Bank of England in the names of A. B., C. D. and E. F. as trustees of
the said charity : it is ordered, that the right to call for a transfer and to
transfer the said Bank Annuities, and to receive the dividends or income
thereof (A), do vest in the said G. H., I. K. and L. M. as such trustees
(g) See sect 18 of the 18 & 19 Vict. c. 124.
(A) Trustee Act, 1850, sect. 35.
208 ORDERS UNDER CHARITABLE TRUSTS ACT.
of the said charity ; and it is ordered, that such last-named trustees do
transfer the said Bank Annuities to " The Official Trustees of Charitable
Funds."
335. Order where Joint Trustees of Stock.
[Title.']
And it appearing that A. B. and C D., in the affidavit of
named, are jointly entitled (i) with E. F., in the said affidavit named,
under and by virtue of the said indenture dated &c. [or the said will of
j, to ^ Bank £2 per Cent. Annuities standing in their
names {j) in the books of the Governor and Company of the Bank of
England, upon trust, and that the said E. F. is an infant [or out of the
jurisdiction of the Court, or cannot be found, or that it is uncertain
whether the said E. F. be living or dead], it is ordered, that the right to
transfer the said Bank Annuities do vest in the said A. B. and C. D., and
to be by them transferred to " The Official Trustees (As) of Charitable
Funds."
336. Wher^ sole Trustee of Stock,
And it appearing that A. B., in the said affidavit of named, is
under and by virtue of &c. a sole trustee of the £ Bank £2 per
Cent. Annuities standing in his name in the books &c., by the description
of " A. B. of &c.," and is an infant [or ^c, as in last form], it is ordered,
that the right to transfer the said Bank Annuities do vest in the Secre-
tary, Deputy Secretary or Accountant-General for the time being of the
Governor and Company of the Bank of England, and to be by him trans-
ferred to " The Official Trustees of Charitable Funds ;" and it is ordered,
that the right to receive the dividends or income thereof remaining unre-
ceived previously to such ti-ansfer do vest in the Governor and Company
&c., and to be by them, when received (Z), placed to the credit of the said
official trustees.
337. Where sole Trustee of Stock refuses to Transfer.
And it appearing that A. B., in the said affidavit of named, is
under and by virtue of &c. a sole trustee of the £ Bank £3 per'
(i) Sect 22 of Trustee Act, 1850 ; and necessary that their descriptions and ad-
3rd sect, of Trusted Extension Act (16 & dresses should appear on the order.
16 Vict. c. 55). (ft) See 18 & 19 Vict. c. 124, s. 18.
(j) Where stock is standing in the (l) See 24th sect, of 18 & 19 Vict. u.
name of two or more persons, it is not 124.
OEDERS UNDER CHARITABLE TRUSTS ACT. 209
Cent. Annuities standing &c., by the description &c., and has neglected
[or refused] to receive the dividends or income thereof according to
the directions of E. F. of &c. [or in the said affidavit named], the per-
son absolutely entitled thereto, for the space of tWenty-eight days next
after a request in writing for that purpose made to him by the said E. F.,
it is ordered, that the right to transfer the said Bank Annuities do vest
in the Secretary, Deputy Secretary or Accountant-General for the time
being of the Governor and Company of the Bank of England, to be by
him transferred to " The Official Trustees of Charitable Funds ;" and it
is ordered, that the right to receive the dividends or income thereof
remaining unreceived previously to such transfer do vest in the Governor
and Company of the Bank of England, and to be by them, when re-
ceived (m), placed to the credit of the said official trustees.
338. Where one of several Trustees of Stock refuses to Transfer.
And it appearing that A. B. and C. D., in the said affidavit of
named, are trustees under and by virtue of the said indenture dated
[or the said will of the said ] of the £ Bank £3 per
Cent. Annuities standing in their names in the books of the Governor
and Company of the Bank of England, and that the said A. B. has
neglected (w) [or refuse4] to transfer the said Bank Annuities for the
space of twenty-eight days next after an order of this Court for that pur-
pose served upon him, it is ordered, that the right to transfer the said
Bank Annuities do vest in the said C. D. alone.
339. Where Stock is standing in the Name of a Deceased Person, whose
Personal Representative cannot he found, or refuses to Transfer.
And it appearing that £ Bank £^ per Cent. Annuities is standing
in the name of A. B. deceased, in the said affidavit of named, by
the description of A. B. of &c., and that C. D. in the petition named,
the personal representative of the said A. B., is out of the jurisdiction of
this Court [or cannot be found (o), or that it is uncertain whether C. D.,
the personal representative of the said A. B., is living or dead (p), or
that C. D., the personal representative of the said A. B., has neglected
(m) See 21th sect, of 18 & 19 Vict. c. (;j) In case the application is made
124. on the ground that the original trustees
(jj) See 24th sect, of Trustee Act, are dead, an afSdavit by a person com-
1850; and 4th sect, of 15 & 16 Vict. petent to speak to the fact of their deaths
c_ 55. will satisfy the Court without producing
' (o) See 25th sect, of the Trustee Act, certificates of their burial. Re North-
1850; and 5th sect, of 15 & 16 Vict. ampton Charities, Z Tie G.,M. Si G.\19.
c. 55.
210 ORDERS UNDER CHARITABLE TRUSTS ACT.
(or refused) to transfer tlie said Bank Annuities, or receive the dividends
or income thereof, for the space of twenty-eight days next after an order
of this Court for that purpose served upon him], it is ordered, that the
right to transfer such Bank Annuities do vest in the Secretary, Deputy
Secretary or Accountant-General for the time being of the Governor and
Company of the Bank of England, to be by him transferred to " The
Official Trustees of Charitable Funds ;" and it is ordered, that the right
to receive (q) the dividends or income thereof remaining unreceived pre-
viously to such transfer do vest in the Governor and Company of the
Bank of England, and to be by them, when received, placed to the credit
of the said official trustees.
(?) 24tli sect of 18 & 19 Vict c. 124.
( 211 )
CHAPTER XV.
The Trustee Act, 1850, and The Trustee Extension Act,
15 & 16 Vict. c. 55.
Preliminary Ohservatioris.
1. The 2nd section of the former act is the interpretation clause, and it
is thereby enacted, that the word "lands" used in the act shall extend
to and include " manors, messuages, tenements and hereditaments, cor-
poreal and incorporeal, of every tenure or description, whatever may be
the estate or interest therein," it extends, therefore, to property of lease-
hold, as well as of customary copyhold or freehold tenure.
2. The 3rd, 4th, 5th and 6th sections relate to the estates of lunatic
trustees and mortgagees ; and petitions thereunder should be presented to
the Lord Chanceflor or Lords Justices, as being intrusted with the care
of the persons and estates of lunatics, and should be intituled " In the
matter of the particular lunacy and of the Trustee Act, 1850."
3. Under the 32nd section of the Trustee Act and the 10th and 11th
sections of the Trustee Extension Act, the Lord Chancellor and Lords
Justices sitting in lunacy have respectively jurisdiction to appoint new
trustees in the place of lunatic trustees. . Se6,Headlam's Ti-ustee Act,
pp. 12 and 92. ^"- ^■^ iZ»>»»./'rf»™AS '-> Mi^tj /^jarr- /u.s. //zs
4. The committee of a lunatic's estate, where not petitioner, should be
served. In re Saumarez, 25 L. J., Ch. 575.
5. It would seem that the costs of proceedings under the Trustee Act
to obtain a reconveyance of a mortgaged estate from a lunatic mortgagee
must be borne by the lunatic's estate, and that, as well when the mort-
gagee has been found of unsound mind by inquisition {Re Townsend, 2
Phil. 348) as when he has not been so found. Hawkins v. Perry, Ex
parte Sargeant, 25 L. J. 656, Lds. Js. See also Re Townsend, 1 M.
& G. 686.
6. In Re Wheeler, 1 De G., M. & G. 434, it was observed by the
Court, that the rule would not be acted on, if the mortgagor presents the
petition, unless the committee of the lunatic had declined lo do so.
7. In Re Lewes, 1 M. & G. 23, where it appeared upon the face of the
mortgage security that the lunatic was a trustee of the mortgaged pre-
mises, it was held, that the costs must be borne by the mortgagor.
8. Where a settlement contained a power to appoint a new trustee, in
case any trustee should become incapable of acting, and one of the trus-
tees became of unsound mind, it was held, that the Court was authorized
J^t^hyy^ /^i^^^-r '^>^'l.^>U^ A^ ,;,^ '^t^J^i^:^^^ l^f-/^^S. J^f. /3y . /Jf>
^,n^^^^f,^hj!/l^, 92^ ^-^e ^«*^ /C«.*^
212 ORDERS UJTDER TRUSTEE ACTS.
to appoint a new trustee, and to direct the old trustee to transfer the trust
fund into the names of himself and the new trustee. Cooper's Settle-
ment, 25 L. J. 685, Lds. Js. See also In re Davies, 3 M. & G. 278.
9. The 37th section of the Trustee Act states who are the persons
entitled to apply for summary orders under the provisions of the act.
10. The practitioner must be careful not to file a bill for the appoint-
ment of new trustees where an order might be obtained upon petition,
as the plaintiff would be fixed with the costs of the suit, or at least with all
the additional costs which such a proceeding might occasion. Thomas
V. Walker, 18 Beav. 521.
11. It must not, too, be forgotten, that all applications under the act,
where any decree or order shall have been made by the Court for the
sale or conveyance of any lands, must be made at the judge's chambers.
4th of the Orders of the 12th of November, 1856.
12. By the 13th section of the Trustee Extension Act, every order
made under the Trustee Act or that act, which shall have the efifect of a
conveyance or assignment of any land, or a transfer of any such stock as
can only be transferred by stamped deed, is charged with the like amount
of stamp duty as it would have been chargeable with, if it had been a
deed executed by the person or persons seised or possessed of such lands,
or entitled to such stock ; and every such order must be duly stamped
for denoting the payment of the said duty.
13. The following forms of orders are adapted to all the sections of the
Trustee Act and the Trustee Extension Act, except those which are ap-
plicable to lunatic trustees and mortgagees.
340. Order under Section 7, rohere Infant Trustees and Mortgagees.
(Be Baskett, 15th Feb., 1856; Re Hammond, 17th March, 1856.)
Cur. — It (a) appearing that the petitioner is interested in the lands(6)
hereinafter mentioned [or has been duly appointed a trustee of the in-
denture dated &c., or will of A. B. in the petition mentioned, or that the
petitioner is beneficially interested in the equity of redemption in the
lands hereinafter mentioned, or in the monies secured by the mortgage
hereinafter mentioned], and that C. D. in the petition mentioned is an
infant, and as the heir at law of A. B. is, under and by virtue of the
indenture dated &c. [or the will of A. B. in the petition named], seised
or possessed (c) of the lands comprised in the said indenture dated &c. [or
{a) This introductory provision, in ac- pretation clause, extends to manors, mes-
cordance with sect. 37, will apply to all suages, tenements and hereditaments,
the orders under this act, from sect. 3 to corporeal and incorporeal of every tenure
sect. 31 inclusive ; but it does not apply or description, whatever may be the es-
to vesting orders on the appointment of tate or interest therein,
new trustees under sect. 32. See form, (c) This section only applies to the
irifra, No. 359. case of an infant having the legal estate.
(i) This_term, according to the inter- In re Williams, S De G. & Sm. 515.
ORDEHS UNDER TRUSTEE ACTS. 213
subject to the trusts of the said -will of the said A. B.] by way of mort-
gage [m- upon trust], let such lands vest in the petitioner [or in E. F. in
the petition named] for the estate () of the said infant therein.
341. Order under Section 8, as to Contingent Rights of Infant
Trustees and Mortgagees.
Cur. — [For commencement, see form under section 7] and that A. B.
in the petition named is an infant, and is, under and by virtue &c. [in-^
denture or will] in the petition mentioned, entitled to a contingent right
in the [lands] subject to the trusts of the said will [or comprised in the
said indenture], upon trust [Or by way of mortgage], let such [lands] be
released from such contingent right [or let such contingent right vest in
E. F. in the petition named].
342. Order under Section 9, where Trustee out of Jurisdiction or
cannot be found.
Cur. — [For commencement, see form under section 7] and that
A. B. (e) in the petition named is, under or by virtue of the indenture
dated &c. [or the will of C. D.] in the petition mentioned, solely seised
[or possessed] of the lands comprised in the said indenture dated [or sub-
ject to the trusts of the said will of C. D.], upon trust, and is out of the
jurisdiction of this Court [or cannot be found], let such lands vest in
the petitioner [or in E. F. in the petition named] for the estate of the
said A. B. therein.
(d) Or to uses to bar dower. In re him to appear by counsel, but the con-
Lttsh's Estate, 5 De G. & Sm. 437 ; Davy sent in writing should be annexed to and
V. Miller, 17 Jur. 908 ; 22 L. J. 1054. filed with the affidavit verifying the sig-
See form of order, infra. No. 366. nature, and not made an exhibit thereto.
Vice-Chancellor Parker seems to have M. R. ; see also Cooper v. Jones, 2 Jur.
doubted the jurisdiction of the Court. N.S. 59, V.C. S.j 25 L. J., Ch. 240. But
In re Howard, 21 L. .7., Ch. 437. the consent of the lord is not required
An order under this section may be where the order is for a conveyance under
made in a suit without a petition. In re the 28th section.
Williams, 21 L. J. 437, V. C. P.; Wood (e) Re Humphreys, 5th May, 1855.
v. Beetlestone, 1 K. & J. 213. Where a testator devised real estates
Where any portion of the land referred to trustees upon trust to sell and pay
to in any vesting order is of copyhold debts and apply the surplus as therein
tenure, the lord's and steward's fines and mentioned, the trustees having disclaimed
fees should be paid by the petitioners, and the heir at law not being found, it
and a consent in writing signed by the was held, in a suit for administration of
steward should be obtained, and his sig- the testator's estate, that th^case fell
nature should be verified by affidavit, under this clause. Wilks v. Groom, 6 De
which will be sufficient without requiring G., M. & G. 205 ; 2 Jur. N. S. 1077.
214 ORDERS UNDER TRUSTEE ACTS.
343. Order under Section 10, where Trustee jointly seised with another
Person out of the Jurisdiction of the Court.
Cur. — [For commencement see order under section 7] and that(/)
A. B. in tlie petition named is, under or by virtue of the will of C. D.
[or the indenture dated &c.] in the petition mentioned, seised [or pos-
sessed] of the lands subject to the trusts of the said will of C. D. [or com-
prised in the said indenture dated &c.], jointly with E. F. in the petition
named, upon trust, and that the said E. F. is out of the jurisdiction of
this Court [or cannot be found], let such lands vest in the said A. B. {g)
alone, for the estate therein by the said indenture conveyed [or by the
said will devised] to the trustees thereof. -* * ''^^'^^o '^ >• *
344. Order under Section 11, where Trustee entitled to a Contingent
Right is out of the Jurisdiction of the Court, or cannot he
Cur. — [For commencement see form under section 7] and that A. B.
in the petition named is, under and by virtue of the indenture dated &c.
[or the will of C. D.], in the petition mentioned, solely entitled to a con-
tingent right in the lands comprised in the said indenture dated [or sub-
ject to the trusts of the said wiU of C. D.], upon trust, and that the said
A. B. is out of the jurisdiction of this Court [or cannot be found], let
such lands be wholly released from such contingent right [or let such
contingent right vest in the petitioner, or in E. F. in the petition
named].
345. Order under Section 12, where a Trustee, jointly entitled with
others to a Contingent Right in Lands, is out of the Juris-
diction of the Court, or cannot he found.
Cur. — [For commencement see form under sectionl'\ and that A. B.,
in the petition named, is, under or by virtue of the indenture dated &c. [or
the will of X. Y.], in the petition mentioned, jointly entitled with the
petitioner C. D. [or C. D. in the petition named], to a contingent right
in the lands comprised in the said indenture dated [or subject to the
trusts of the said will of X. Y.], upon trust, and that the said A. B. is
out of the jtirisdiction of this Court [or cannot be found], let such con-
(f) Re DalrympU, 13th March, 1856 ; in Smith v. Smith, 18 Jur. 1047, 3 Drew. 72,
Attorney-General v. Thompson, 28th July, where one of the remaining trustees of a
1856. settlement had gone abroad, and the other
{g) N()twithstanding the decisions in was willing to act, that an order could be
Flyer's Trust, 15 Jur. 766, 9 Hare, 220, and made vesting the land in the continuing
Waft's Settlement, 9 Hare, 106, it was held trustee and the new trustee.
OHDEHS UNDER TRUSTEE ACTS. 215
tingent right vest in the said C. D. [or in the said C. D., together with
E. F. in the petition named. If C. D. and E. F. are trustees, add as
such trustees as in the petition mentioned.]
346. Order under Section 13, where it is uncertain which of several
Trustees was the Survivor,
Cur. — [jPor commencement see form under section 7] and that A. B,
and C. D. were, under or by virtue of the indenture dated &c. [or the wiU
of E. F.], in the petition mentioned, jointly seised [or possessed] upon
trust, of the lands comprised in the said indenture [or subject to the
trusts of th^ said will], and that the said A. B. and C. D. are both dead,
and th^t it is uncertain which of them was the survivor, let such lands
vest in G. H. in the petition named, for the estate of the survivor of the
said A. B. and C. D. therein at the time of his death.
347. Order under Section 14, where it is uncertain whether the last
Trustee be living or dead.
Cur. — [For commencement see form under section 7] and that A. B.
and C. D. in the petition named have been, under or by virtue of the
indenture dated &c. [or the will of E. F.] in the petition mentioned,
seised [or possessed] of the lands comprised in the said indenture [or
subject to the trusts of the said will], and that the said A. B. is dead, and
that it is not known whether the said C. D. be living or dead, let such
lands vest in G. H. in the petition named, for such estate as the said
C. D., if living, had or has therein, or, if dead, had therein at the time
of his death,
348. Order under Section 15, when Trustee dies without an Heir.
Cur. — [For commencement see form under section 7] and that A. B.
in the petition (A) named was, under or by virtue of the indenture dated
&c. [or the will of X. Y.] in the petition mentioned, seised, at the time of
his death, of the lands comprised in the said indenture [or subject to the
trusts of the said will] upon trust, and that the said A. B. died intestate
as to such land without an heir [or has died, and it is not known who is
his heir or devisee], let such lands vest in C. D. in the petition named,
for the estate of the said A. B. therein at the time of his death [or for
the estate of any heir or devisee of the said A. B. therein].
(A) Be Wayman, 17 Deo. 1855.
216 ORDERS UNDER TRUSTEE ACT3.
349. Order under Section 16, where Contingent Right in unborn
Persons.
Cur. — \For commencement see form under section 7] and that the
lands comprised in the indenture dated &c. \or subject to the trusts of the
■will of X. Y.], in the petition named, are subject to a contingent right
in (i) -who, upon coming into existence, would in
respect thereof become seised [or possessed] of such lands upon trust,
let such lands be wholly released and discharged from such contingent
rights in any such unborn person [or class of unborn persons], or let the
estate [or estates] which such unborn person [or class of unborn persons]
would, upon coming into existence, be seised [or possessed] of in such
lands, vest in {j).
350. Order under Section 19, in case of a Mortgage, after death of
Mortgagee, where Heir or Devisee is out of the Jurisdiction ;
where the Heir or Devisee refuses to Convey ; where it is un-
certain which of several Devisees is Survivor ; or whether Heir
or Devisee he living ; or where it is not known who is the Heir
or Devisee.
Cur. — [For commencement see form under section 7] and that A. B.
in the petition named, to whom the lands comprised in the indenture,
dated &c., in the petition mentioned, have been conveyed by way of
mortgage, has died without having entered into the possession or into the
receipt of the rents and profits thereof (and that the money due in re-
spect of such mortgage has been paid to C D. in the petition named,
the person entitled to receive the same), [or C. D. in the petition named,
the person entitled to receive the money due in respect of such mortgage,
by his counsel consenting to this order], and it also appearing —
1. That the heir [or devisee] of the said A. B. is out of the jurisdic-
tion of this Court [or cannot be found].
Or,
2. That E. F. in the petition named, the heir [or devisee] of the said
A. B., upon demand by G. H. in the petition named, the person entitled
to require a conveyance of such lands [or by L. M., a duly authorized
agent of G. H. in the petition named, the person entitled to require a
conveyance of such lands], has stated in writing that he will not convey
the same [or has not conveyed such lands for the space of twenty-eight
(:) This blank must be supplied accord- class of unborn persons.' '
ing to the facts of the case as stated in (j) Sections 17 and 18 are repealed by
the petition, having regard to the words sect 2 of the Trustee Extension Act
in the section "in an unborn person, or
ORDERS UNDER TRUSTEE ACTS. 217
days next after a proper deed for conveying the same has been tendered
to him by G. H. in the petition named, a person entitled to require a
conveyance thereof, or by L. M., a duly authorized agent of G. H.
in the petition named, a person entitled to require a conveyance thereof].
Or,
3. That it is uncertain as to J. K. and L. M., the devisees of the said
A. B., which was the survivor.
Or,
4. That it is uncertain as to the survivor of J. K. and L. M., the de-
visees of the said A. B. [or as to the heir of the said A. B.], whether he
be living or dead.
Or,
5. That the said A. B. has died intestate as to such lands, and without
an heir \or has died, and it is not known who is his heir or deviseel, let
the land comprised in the said indenture, dated &c., vest in the petitioner
for the estate therein of the said A. B. at the time of his death (A).
351. Order under Section 20 (Z), appointing a Person to Convey in
certain Cases.
Cur. — \_For commencement see form under section 7, and the further
introductory part of the order under this clause mill follow the lan-
guage of the section under which it is made, and then proceed thus ;]
and let A. B., of &c. (or in the petition named], be appointed to convey
[or assign] the lands comprised in the indenture, dated &c. [or subject
to the trusts of the will of C. D.], in the petition mentioned, for the
(k) Re Minchin's Will, 3rd March, 1855 ; G. 57 ; 9 Hare, 820 ; see also In re Mey-
Dalmaine V. Moseley, 20th April, 1855; rink's Estate, 9 Hare, 116; Headlam's
Re Hickinbotham, 26th May, 1855 ; Re Trustee Act, p. 42.
Sander's Mortgage, 7th July, 1855 ; Re (I) This section also authorizes the
Howard's Mortgage, 3rd Dec. 1855 ; Re Court, in cases of stock, to direct the
iennjon, 17th Dec. 1855; ReTolback,\S\h Bank of England or other Company to
Jan. 1856. transfer the stock to the person named in
The 1 9th section only applies where the order ; as to which see the Trustee
the mortgagee dies without having en- Extension Act.
tered into possession, or into the receipt Where the donee of a power of jointur-
of the rents of the mortgaged lands, and ing under a settlement was ordered in a
the money due in respect of such mort- suit to execute the power by a deed, on
gage shall have been paid to a person en- his refusal to obey the decree, he was,
titled to receive the same, or such person upon petition under the Trustee Act, de-
consents to an order for the reconveyance dared to be a trustee of all the rights,
of the lands. interests, estates and property acquired
The Court has jurisdiction under this by him under the settlement, and the
section upon the petition of the personal Court appointed a person to execute the
representative of a mortgagee whose heir requisite deed in his place. Ex parte The
cannot be found, to make an order vesting Countess of Mornington, 4 De G., M. & G.
the legal estate in such personal repre- 537.
sentative. In re Boden, 1 De G., M. &
218 ORDERS UNDER TRUSTEE ACTS.
estate of &c. \_as in the section under which the case falls, or let A. B.
&c., be appointed to release or dispose of &c.] [For conclusion see
order under section 16.]
352. Order under Section 22 (»i), wliere Person Trustee of Stock,
with a Trustee out of the Jurisdiction, or who cannot te found,
or it is uncertain whether he be living or dea^; or under 3rd
Section of Trustee Extension Act, where an Infant is one of
# the Trustees.
a^^gncu...^:^} ^■yU-./v..?.^j>^g JVoa^, 27th April, 1855.
Cur. — It appearing that A. B. and C. D. in the petition named are
jointly entitled with E. F. in the petition named, under and by virtue of
the indenture, dated &c. or the will of &c. in the petition mentioned to
£, Bank £^ per Cent. Annuities standing in their names in the
books of the Governor and Company of the Bank of England [and to
certain choses in action], upon trust, and that the said E. F. is an in-
fant (w) \or out of the jurisdiction (o) of this Court, or cannot be found,
or that it is uncertain whether the said E. F. be living or dead], let the
right to transfer the said Bank Annuities vest in the said A. B. and
C. D. [and G. H. the new trustee] as trustees of the said indenture \or
will], and let the right to sue for and recover any chose in action under
or by virtue of the said indenture \or will], or any interest in respect
thereof, vest in the said A. B. and C. D., together with the said G. H. as
trustees of the said will \pr indenture].
Or,
Cur. — It appearing that A. B. in the petition named is entitled under
and by virtue of the indenture &c. as sole trustee to £, Bank £3
per Cent. Annuities standing &c. by the description &c. [and to certain
choses in action], and is an infant \or out of the jurisdiction &c. of this
Court, or cannot be found, or that it is uncertain whether the said A. B.
be living or dead], let the right to transfer the said Bank. Annuities vest
in the Secretary, Deputy Secretary or Accountant-General for the time
being of the Bank of England, and be by him transferred into the name
of C. D. in the petition named (by the description of C. D. of &c.), to
be held by him as the new trustee of the said indenture [or will], and
let the right to receive the dividends or income thereof, and to sue for
and recover any chose in action, under or by virtue of the said indenture
(m) Section 21 relates to lands within (o) The husband of an executrix out
the Duchy of Lancaster, and the Counties of the jurisdiction held to be n trustee
Palatine of Lancaster and Durham. within this section. Re Bradaliaw, 2 De
(n) See sect. 3 of the Trustee Exten- G., M. & G. 900 j and see In re Brass's
sion Act. Trusts, i W. Rep. 764, V. C. K.
0HDKR3 UNDEH TRUSTEE ACTS. 219
[or will], or any interest in respect thereof, vest in the said C. D. as the
new trustee of the said indenture [or will].
353. Order under Section 23, where Trustee refuses to transfer
Stock.
Car.— It appearing that A. B. in the petition named is, under or by-
virtue of the indenture, dated [or the will of C. D.] in the petition
mentioned, a sole trustee of the £ Bank £3 per Cent. Annuities
standing in his name in the books of the Governor and Company of the
Bank of England, by the description of A. B. of &c. [and of certain
choses in action], and has neglected [or refused] to transfer the said
Bank Annuities [or and] to receive the dividends (^) or income thereof,
[or and] to sue for or recover [specify the nature of the chose in action
or the interest in respect thereof], according to the direction of E. F.
in the petition named, the person absolutely entitled thereto, for the
space of twenty-eight days next after a request in writing for that pur-
pose made to him by the said E. F., let the right to transfer the said
Bank Annuities vest in the Secretary, Deputy Secretary or Accountant-
General for the time being of the Bank of England, and be by him
transferred into the name of G. H. in the petition named by the descrip-
tion of G. H. of &c., to be by him held as the new trustee of the said in-
denture [or will] ; and let the right to receive the dividends or income
thereof, and to sue for and recover any chose in action, under or by virtue
of the said indenture [or will], or any interest in respect thereof, vest in
the said G. H. as such new trustee.
354. Order under Section 24 of Trustee Act and Section 4 of Trustee
Extension Act, where one of several Trustees of Stock refuses
to transfer or receive Dividends.
Cur. — It appearing that A. B. and C. D. in the petition named are
trustees under, and by virtue of the indenture, dated the [or the will
of ] in the petition mentioned, of the £ (jj) Bank £2 per Cent.
Annuities standing in the name of &c. in the books of the Governor
and Company of the Bank of England, and of certain choses in action,
(p) It has been held, under this sec- annuity or security transferable in books
tion, that the Court has not authority to kept by any company or society esta-
make any order as to past dividends. In Wished, or to be established, or transfer-
re Hartnall, 5 De G. & Sm. Ill ; 16 Jur. able by deed alone, or by deed accom-
33 ; but see 4th & 5th sects, of the Trustee panied by other formalities, and any
Extension Act as to an order for transfer- share or interest therein. See Interpreta-
ing the stock; and see last order, infra, tion Clause of Trustee Act; and see In
No. 367. re Angela, 5 De G. & Sm. 278; 16 Jur.
(j) The word " stock " means any fund, 831.
220 ORDERS UNDER TRUSTEE ACTS.
and that the said A. B. has neglected [or refused] to transfer the said
Bank Annuities [or or and] to sue for or recover [specify the
nature of the chose in action or the interest in respect thereof], [ac-
cording to the directions of G. H. in the petition named, the person
absolutely entitled thereto, for the space of twenty-eight days next after
a request in writing for that purpose made to the said A. B, by the said
G. H. (?•)], let the right to transfer the said Bank Annuities, and to sue
for and recover any chose in action, under and by vii'tue of the said
indenture [or will], vest in the said C. D. alone.
[Sharu v. Shaw, 11th April, 1856.)
355. Order under Section 25 of Trustee Act and Section 5 of Trustee
Extension Act, where Stock standing in Name of a deceased
Person.
Cur. — It appearing that £ Bank £3 per Cent. Annuities is
standing in the name of A. B. deceased, in the petition named by the
description of A. B. of &c., and that C. D. in the petition named, the
personal representative of the said A. B., is out of the jurisdiction of
this Court [or cannot be found, or that it is uncertain whether C. D.,
the personal representative of the said A. B., is living or dead, or that
C. D. &c. has neglected, or refused to transfer the said Bank Annuities,
or receive the dividends or income thereof], [according to the direction of
E. F. the person named, the person absolutely entitled thereto, for the
space of twenty-eight days next after a request in writing for that pur-
pose to the said C. D. by the said E. F. («)], let the right to transfer
such Bank Annuities, or to receive the dividends or income thereof, vest
in
356. Introductory Part under Section 28, as to Copyhold Lands.
Cur. (()— A. B. in the petition named, the lord of the manor of &c,
in the petition mentioned, by his counsel consenting [or having in writing
consented] hereto, as to such portion of the said lands as is holden [or
part] of the said manor of
(r) When the application is made days next after an order of this Court
under the 4th section of the Extension for that purpose served on him ;" and see
Act omit words within hrackets, and in last form, No. 367.
lieu thereof insert, "for the space of (i) The above form will have to be in-
twenty-eight days next after an order of serted in every vesting order relating to
this Court for that purpose served upon any copyhold land, but it is not requisite
liim." where the order directs a conveyance.
(») When the order is made under the See Cooper v. Jones, 2 Jur. N. S. 59 ; 25
5th section of the Extension Act omit L. J. 240, V. C. S. ; and In re Fliteroft,
words within brackets, and in lieu thereof 1 Jur. N. S. 418, V. C. W.
insert, "for the space of twenty-eight
ORDERS UNDER TRUSTEE ACTS. 221
357. Order under Section 30, where Parties to Suits are, or where
unborn Persons upon coming into esse would be, Trustees.
Smith V. Bomsher, 20th July, 1855.
Car. — Declare that the defendants A. B. and C. D. are trustees within
the meaning of the Trustee Act of the lands by the decree made in this
cause, dated &c., directed to be \here state directions from decree].
Or,
Cur. — Declare concerning the interests of any unborn persons who
might claim under the defendant E. F. [or under the will or voluntary
settlement of G. H. deceased] in the petition [or the plaintiff's bill]
named, that such interests %i unborn persons are the interests of persons
who, upon coming into existence, would be trustees within the meaning
of the Trustee Act, 1850. [Add usual directions as to conveying or
vesting (u) the lands, as the case may be, and for form, vide ante, sec-
tion 20.]
358. Introductory Part of Orders under Sections from 31 to 36
inclusive.
Cur. — It appearing that the petitioners are beneficially interested in
the lands, stock [or and choses in action], subject to the trusts of the
indenture, dated &c. [or the will of X. Y.] in the petition mentioned.
Or,
Cur.— It appearing that the petitioners have been duly appointed as
trustees of the lands, stock [or and choses in action], subject to the
trusts of the indenture, dated &c. [or the will of X. Y.] in the petition
mentioned.
359. Order appointing new Trustees, and vesting Lands, Choses in
Action and Stock, under Sections 32, 34 and 35 of Trustee
Act.
And it appearing that the petitioners are beneficially interested (x) in
(a) A vesting order may be made under was an infant, the Court appointed a per-
the 1st section of the Trustee Extension son to be trustee in the place of the in-
Act, although the purpose of the sale is fant, and ordered the whole estate to vest
not confined to the payment of debts. in such new trustee and the original adult
See also Walte v. Walie, 17 Jur. 545, trustee jointly. In re Cooper, 25 L. J.
V, C. S. 685 ; In re Humphry's Estate, 1 Jur. N.
(x) The cestuis que trust and old trus- S. 921, V. C. W.
tees must appear either as petitioners or The Court will appoint more than one
as respondents. In re Sloper, 18 Beav. trustee, even where the instrument creat-
596 ; see also In re Smyth, 2 De G. & ing the trust only nominated one. Ex
Sm. 781. P«'''e Tunstall, 4 De G. & Sm. 421 ; 15
Where a testator had devised to two Jur. 645.
trustees, upon trust to sell, one of whom
222 ORDERS UNDER TRUSTEE ACTS.
the lands, stock and choses in action, subject to the trusts of the inden-
ture, dated the day of [or the will of ] in the petition
mentioned, and that it is expedient to appoint a new trustee [or new
trustees] of the said indenture [or will], and that it is found inexpedient,
[diflficult or impracticable] so to do without the assistance o£ this Court,
this Court doth order that of &c., in the petition named, be ap-
pointed a new trustee [or trustees] of the said indenture, dated &c. [or
will of the said ], in addition to [or in substitution for] C. D. [or
in substitution for C. D. and in addition to E. F. the existing trustee of
the said indenture (or will)].
Lands.
And it is ordered that the lands (y), subject to the trusts of the said
indenture [or will], do vest in the said A. B. and C. D. as such trustees
of the said indenture [or will] for the estate therein of the trustees named
in the said indenture [or will], or for the estate therein devised by the
said will [or conveyed by the said indenture] to the trustees thereof [or
therein named].
Choses in Action.
And it is ordered that the right to sue for and recover any chose in
action, subject to the trusts of the said indenture [or will], or any interest
in respect thereof, do vest in the said A. B. and C. D. as such trustees
of the said indenture [or will].
Stock.
And it is ordered that G. H. the executor of C. D., the survivor of the
said C. D'. and E. F. [or, where there is a surviving trustee, that C. D.]
do transfer («) any stock, subject to the trusts of the said indenture [or
will], to the said A. B. as such new trustee (a) thereof [or when tfiere is
a surviving trustee, into his own name and the name of the said A. B.
as such trustees thereof].
360. Order under Section 35, vesting Right to call for a transfer of
Stock in new Trustees.
And it appearing that the stock subject to the trusts of the said will
(y) Where any portion of the land is or competent to transfer, recourse must
copyhold, insert, "The lord of the manor be had to the next form under section 35.
of consenting hereto, as to such (o) A certificate signed by the new
portion of the land hereinafter mentioned trustees testifying their willingness to
as is held of the said manor." accept the trusts, with an afiidavit veri-
(x) Where there is no person willing fying their signatures, is indispensable.
ORDERS UNDER TRUSTEE ACTS. 223
lor indenture] comprises the £ Bank £3 per Cent. Annuities
standing in the books of the Bank of England in the names of the said
A. B., C. D. and E. F., as trustees of the said will [or indenture], it is
ordered, that the right to call for a transfer, and to transfer the said
Bank Annuities, and to receive the dividends or income thereof, do
vest (b) in the said G. H. and I. K., as new trustees of the said will [or
indenture].
361. Order under 1st Section of Trustee Extension Act (15 ^ 16 Vict.
c. 55 (c) ), vesting Estate after Decree or Order for Sale.
Hardy v. Smith, 6th June, 1854 ; Seale v. Butler, 27th April, 1855.
Cur. — It appearing that the defendant A. B. is seised \or possessed]
of \or entitled to a contingent right in] the lands comprised in Lot 8,
being part of the lands directed to be sold by the decree \or order] dated
&c., and appearing by the chief clerk's certificate of sale dated &c. to
have been purchased by CD. in the petition named, at the price of
£, ; and it appearing by the certificate of the Accountant-General
of this Court, dated &c., that the said C. D. has paid into the Bank, to
the credit of &c., the sum of £, the amount of his purchase-money
\or the residue of his said purchase-money, afl;er deducting the amount
paid by way of deposit for the said land comprised in the said Lot 8] ;
and the Court [the judge] being of opinion that the defendant A. B. is to
be deemed to be so seised \or possessed, or entitled] upon a trust within
the meaning of the Trustee Act, 1850, let the said lands comprised in the
said Lot 8 vest in the said C. D., as the purchaser thereof, for the estate
of the said defendant A. B. therein,
(6) Be Baldock, 30th Jan. 1854 ; Re make a vesting order having the effect
Gihbs, 1st July, 1864. of a conveyance, even though the legal
(c) The 1st sect, of the Trustee Exten- owners are not under any personal dis-
sion Act extends the provisions of the ahility.
Trustee Act, 1850, — first, by making the Applications under the 1st sect, of the
summary powers of these acts applicable. Trustee Extension Act are directed to
not exclusively to cases of the sale of land be made in chambers by the 4th General
for the payment of the debts of a deceased Order of the 12th of Nov. 1856.
person, but generally to sales of land, It is apprehended, that the application
when directed by a Court of Equity for for this order should be made by the
any pxirpose whatsoever ; and secondly, party to the suit having the conduct of
by increasing the summary powers of the the sale, and that the provisions of sect.
Trustee Act, by enabling the Court to 37 of the Trustee Act, 1850, do not apply.
224 ORDERS UNDER TRUSTEE ACTS,
362. Another Form under the 1st Section.
Viee-Chancellor Stuart, at chambers.
Tuesday, the 17th day of February, 1857.
(^Sibbering v. Phillips.)
Cur. — It appearing that the defendant S. C. P. is seised of the lands
in the chief clerk's certificate of sale, dated the day of ,
mentioned, being the lands directed to be sold by the said order dated
the day of ; and the judge being of opinion that the
defendant S. C. P. is to be deemed to be so seised upon a trust within
the meaning of the Trustee Act, 1850, let A. B. of gentleman, be
appointed to convey the lands comprised in the said certificate of sale for
the estate of the said defendant S. C. P.
363. Order under Section 2(d) of Trustee Extension Act for vesting
Estate on refosal or neglect of a Trustee to Convey for the
space of Twenty-eight Days after demand.
Cur. — [For commencement, vide form 358] and that A. B. in the
petition named is, under and by virtue of the indenture dated [or the
will of C. D.] in the petition named, solely [or jointly with E. F.
therein named] seised [or possessed] of the land subject to the trusts of
the said indenture [or will] [or entitled to a contingent right in the lands
subject to the trusts of the said indenture (or will)], and that a demand
has been made upon the said A. B. by G. H. in the petition named, a
person entitled to require a conveyance [or assignment] of such lands [or
by I. K., a duly authorized agent of G. H. in the petition named, a
person entitled to require a conveyance (or assignment) of such lands, or
requiring the said A. B. to convey (or assign) the same], and that the
said A. B. has wilfully refused [or neglected] to convey [or assign] the
said land for the space of twenty-eight days after such demand, let such
lands vest in the said G. H. for the estate of the said A. B. therein [or
let such contingent right in such lands be released].
364. Order under 8th Section of Trustee Extension Act, appointing
Trustee in the Place of a Person convicted of Felony.
Cur. - [For commencement, vide form 358] and that A. B. in the
{d) Kirkman v. Robertson, 17th March, difficulty had also arisen under the former
1856. The effect of the 2nd section is to act, inasmuch as it was almost impossible
render it unnecessary to tender a deed to determine what constituted a proper
conveying or assigning trust property deed for the conveyance of copyhold
previously to an application to the Court ; lands : — this difficulty is now obviated,
and, with respect to copyhold property,
OHDERS UNDER TRUSTEE ACTS. 225
petition named is, under or by virtue of the indenture dated ^or the will
of C. D.] in the petition mentioned, solely [or jointly with E. F. therein
named] seised [or possessed] of the lands subject to the trusts of the said
. indenture [or will] [or entitled to the £ Bank ^3 per Cent. An-
nuities standing in the name of the said A. B., by the description of A. B.
of &c., or standing in the names of the said A. B. and C. D. (e)], upon
trust; and it also appearing by that the said A. B. has been con-
victed of felony, let E. F. in the petition named be appointed a trustee
of the said indenture [or will] in the place of the said A. B. ; and let
such lands vest in the said E. F. and C. D., as such trustees, for the
estate of the said A. B. and C. D. therein [or let the right &c., when
solely entitled, as inform tender section 5 of the Extension Act, and
where jointly entitled, as in conclusion of the samefornC\.
365. Order appointing new Trustees, made on the Petition in p. 94.
In the matter of &o.
Upon the petition of N. G. and W. P. and Mary Anne his wife, on
&c., preferred &c., and upon hearing counsel for the petitioners and
for E. W. &c., and upon reading the said petition, an indenture of
mortgage dated &,c., the affidavit of &c. and it appearing by the evi-
dence aforesaid that G. W., the sole trustee of the said indenture of
mortgage in the petition mentioned, is dead, and that E. W. &c. are
executors of his will, and that they declined to act in the trusts of the
said indenture, and that the petitioners are beneficially interested in the
leasehold messuages and tenements comprised in the said indenture, and
in the sums of &c. thereby secured, and that it is expedient that new
trustees of the said indenture should be appointed, and that it is imprac-
ticable to do so without the assistance of this Court, his Honor doth order
that C. F. and E. P. in the petition named be appointed trustees of the
said indenture of mortgage and trust in substitution for the said G. W.
deceased. And it is ordered, that all the said leasehold estates and pre-
mises comprised in the said indenture of mortgage and trust do vest in
the said C. F. and E. P. for all the estate and interest therein respectively
now vested in the said E. W. &c. as the executors of the said G. W. de-
(e) When stock is standing in the there be any existing trustee or not at the
names of more than one person, no de- time of making such order." The prin-
scription of them is requisite. cipal cases upon the Trustee Act as to this
The 9th sect, of the Trustee Extension point are, In re Hazeldine, 16 Jur. 853,
Act, in order to remove the doubt which V. C. T. ; Ex parte Hadley, 5 De G. &
had previously existed upon the subject, Sm. 67; 16 Jur. 98; and In re Tyler's
enacts, that the order may be made " ap- Trust, S De G. & Sm. 56.
pointing a new trustee or trustees, whether
Q
226 OKDEKS UNDER TRUSTEE ACTS.
ceased, to be held by them upon the trusts by the same indenture declared,
or such of them as are now subsisting or capable of taking effect. And
it is ordered, that the right to sue for and recover the said sums of &c.
secured by the said indenture do vest in the said C. F. and E. P. as .
such trustees. And it is ordered, that the costs, charges and expenses of
the petitioners and the other parties appearing of and relating to this ap-
plication and consequent thereon be paid by the said new trustees out of
the trust estate, such costs, charges and expenses to be taxed by the
proper taxing-master of this Cburt in case the parties differ about the
same.
366. Order vesting Estate of Infant Trustees in Purchaser, to Uses to
har Dower.
Upon- the petition of the plaintiff &c., preferred &c., and upon hearing
counsel for the petitioner and for the defendant M. A., and for the infant
defendants, and upon reading the said petition &c., and it appearing that
M. P. and others are seised in fee, as grandchildren of the testator D. R.
under his will, of the real estate or moiety of the real estate situate &c.,
directed to be sold by the said order &c., in remainder expectant upon
the decease of the defendant M. A., upon a trust within the meaning of
the above-mentioned act, and that the interests of any unborn grand-
children of the said testator are the interests of persons, who upon coming
into existence would be trustees within the meaning of the above-men-
tioned act ; and it appearing by the order dated &c. that the said real
estate, situate &c., has been purchased by J. H. ; and it appearing by the
certificate of the Accountant-General of this Court that he has paid his
purchase-money of ^ for the said real estate &c. into the Bank to
the credit of these causes : it is ordered, that the said real estate, situate
at &c., do vest in the said J. H. and his heirs, to the uses, for the ends,
intents and purposes hereinafter declared of and concerning the same ;
(that is to say), to the use of such person or persons, for such estate or
estates, and for such intents and purposes as the said J. H. shall at any
time or times by any deed or deeds to be executed by him, or by his last
will and testament, direct, limit or appoint ; and in default of any direc-
tion, limitation or appointment, to the use of the said J. H. and his assigns
during his life ; and after the determination of that estate by forfeiture or
otherwise in his lifetime, to the use of R. G., his executors and adminis-
trators, during the life of the said J. H., in trust for him the said J. H.;
and after the determination of that estate so limited, to the said R. G.,
his executors and administrators as aforesaid, to the use of the said J. H.,
his heirs and assigns for ever. And it is ordered, that it be referred to
ORDERS UNDER TRUSTEE ACTS. 227
the proper taxing-master of this Court to tax the costs of the petitioners
and of the defendant M. A., and of the infant defendants, of this appli-
cation and consequent thereon, and also the costs of the said J. H. the
purchaser, and to certify the total amount thereof &c. [here follow direc-
tions for sale of stock and payment of costs].
367. Order (/) under Trustee Act and Extension Act, where Stock
in Name of deceased Trustee, appointing new Trustees, and
directing that the Might to transfer and to receive past and
future Dividends shall vest in them.
Vice-Chancellor Wood.
The 23rd day of May, in the year 1857.
In the matter of the Trustee Act, 1850, and of the act
passed in the session of parliament holden in the fifteenth
and sixteenth years of the reign of her present Majesty,
intituled " An Act to extend the Provisions of the Trustee
Act, 1850;"
And in the matter of the trusts of the will or testamentary
disposition of A. K. deceased, so far as the same relate
to the 20,000/. Bank £3 per Cent. Annuities standing
in the names of W. R. and Sir H. S. deceased.
Upon the petition of the Reverend I. K., E. D. wife of W. D., by
W. S. her next friend, and W. H., E. D. &c. infants, by the said W. S.
their next friend, and S. L. wife of W. L., by the said W. S. her next
friend, and A. B., J. B. &c. infants, by the said W. S. their next friend,
on &c. preferred unto the Right Honorable the Lord High Chancellor
of Great Britain, and upon hearing counsel for the petitioners and for
H. R. the executrix of the will of G. R. deceased, and upon reading the
said petition, probate of the will of A. K., the testator in the petition
named, probates of the wills of W. R. and G. R. in the petition named;
an affidavit of the petitioner J. K., and the exhibit A. therein referred to,
being a certificate under seal of the General Register Office as to the
death of A. K. in the petition named ; an affidavit of E. D. ; an affidavit
of M. C in proof of the death of Sir H. S. in the petition named; an
affidavit of H. R., and the exhibits B. and C. therein referred to, being
respectively certificates under the seal of the General Register Office as
to the deaths of W. R. and G. R. in the petition respectively named ; an
affidavit of J. B. ; an affidavit of J. S.; affidavits of D. B. and A. A.,
verifying the consents in writing of W. P. and W. A. to be appointed
(/) Re Seton's Trusts, 23rd May, 1867, V. C. W.
q2
228 ORBERS UNDER TRUSTEE ACTS.
trustees of the will of the said A. K.; further affidavits of the petitioners
the said J. K. and E. D., and affidavits of E. P. and W. F. as to the
eligibility of the said trustees; and it appearing that the said W. R. and
Sir H. S. were trustees of, and that the said petitioners are beneficially
interested in the stock hereinafter mentioned, which is subject to the
trusts of the said will or testamentary disposition of the said A. K.; and
that it is expedient to appoint new trustees of the said will, so far as the
same relates to the said stock ; and that it is found impracticable to do
so without the assistance of this Court : this Court doth order, that W. P-
and W. A. be appointed new trustees, in the place or stead of Sir H. S.
and W. R. respectively, deceased, of the said will or testamentary dis-
position of the said A. K., so far as the same relates to the sum of 20,000/.
Bank £^ per Cent. Annuities standing in the names of the said W. R.
and Sir H. S. severally, deceased, in the books of the Governor and
Company of the Bank of England, as in the petition named. And it is
ordered, that the right to call for a transfer and to transfer the £
Bank £^ per Cent. Annuities so standing in the names of W. R. and .
Sir H. S. as aforesaid, and to receive the past and future dividends and
income thereof, do vest in the said W. P. and W. A. as the trustees
thereof. And it is ordered, that the petitioner J. K. and W. S. the next
friend of the other petitioners, do pay to the said H. R. her costs of and
incident to this application and consequent thereon, including the costs of
her affidavit filed in support thereof, to be taxed by the proper taxing-
master of this Court in case the parties differ.
APPENDIX.
REGULATIONS
To he observed in the Conduct of Business at the Chambers of the
Master of the Rolls and the Vice- Chancellors. By Order of
the Right Honourable Sir John Romilly, Master of the Rolls ;
The Honourable The Vice- Chancellor Sir Richard TorinKin-
dersley ; The Honourable The Vice- Chancellor Sir John
Stuart ; and the Honourable The Vice- Chancellor Sir William
Page Wood, this ^tli day of August, 1857.
I. — Summonses are not to be altered after they are sealed, except upon
application at Chambers, and any alterations then made will be marked
•with the seal of such Chambers.
II.— Upon applications for time to answer, a printed copy of the
bill and the interrogatories to be answered are to be produced.
III. — Whenever any matter is adjourned from the Court to Chambers,
or any directions are given in Court, to be acted upon at Chambers,
whether upon a matter adjourned into Court from Chambers or upon
any other occasion, without an order being drawn up, a note signed by
the registrar, stating for what purpose such matter is adjourned to
Chambers, or the directions given, is to be procured from the registrar,
and lefl at Chambers.
IV. — In drawing up decrees and orders to be left at Chambers the
Solicitors are to take care that every account, inquiry, sale, direction to
appoint receiver, and other direction to be answered at Chambers, is
numbered consecutively according to the form set forth in the schedule C.
referred to in the General Order, No. VIII. of 16th October, 1852, and
that the other directions are not numbered.
V. — At the same time that any decree or order made in a suit insti-
tuted by bill or claim is left at Chambers, a print of the bill or claim is to
be left.
VI. — A note stating the names of the solicitors for all the parties, and
showing for which of the parties such solicitors are concerned, is to be
left at Chambers with every decree or order.
VII. — For the purpose of procuring the direction of the Judge as to
the manner of serving notice of a decree or order, pursuant to the 5th
General Order of 1st June, 1854,
The plaintiff is to make an ex parte application by summons, and
thereupon to show by affidavit as far as he is able —
1. With respect to infants :
The age of the infants.
Whether they have any parents or testamentary guardians, or
guardians appointed by the Court of Chancery.
Where and under whose care the infants are residing, at whose
230
APPENDIX.
expense they are maintained, and in ease they have no father or
guardian, who are their nearest relations :
And that the parents, guardians, relations or persons upon whom
it is proposed to serve the notice have no interest in the mattere
in question, or, if they have, the nature of such interest, and
that it is not adverse to the interests of the infants.
2. With respect to persons of unsound mind not found so by inqui-
sition :
Where and under whose care such persons are residing, and at
whose expense they are maintained.
Who are their nearest relations, and that such relations or person
upon whom it is proposed to serve the notice have no interest
in the matters in question, or, if they have, the nature of such
interest, and that it is not adverse to the interest of the persons
of unsound mind.
VIII. — A copy of every certificate by a record and writ clerk of the
entry of a memorandum of service of notice of a decree or order, and of
every order giving liberty to a person served with such notice to attend
the proceedings, certified by the sohcitor, is to be left at Chambers.
IX. — Upon the notice of a claim having been entered at Chambers by
a creditor or other claimant served upon the solicitors in the cause, the
number of the entry of the claim is to be stated.
X.— ^Every alteration in an account verified by affidavit to be left at
chambers is to be marked with the initials of the commissioner or officer
before whom the affidavit is sworn, and such alterations are not to be
made by erasures with the knife or other instrument.
XI. — Accounts, extracts from parish registers, particulars of creditors'
debts, and other documents referred to by affidavit, are not to be annexed
to the affidavit, or referred to in the affidavit as annexed, but are to be
referred to as exhibits.
XII. — Every certificate on an exhibit referred to in an affidavit signed
by the commissioner or officer before whom the affidavit is sworn must
have the short title of the cause or matter.
XIII. — Affidavits for the purpose of enabling the Judge to fix reserved
biddings are to state the value of the property by reference to an exhibit
containing such value, so that the value may not be disclosed by the affi-
davit when filed.
XIV. — As soon as particulars and conditions of sale settled at Cham-
bers have been printed, two prints thereof, certified by "the solicitor to be
correct prints of the particulars and conditions settled at the Judge's
Chambers, are to be left at Chambers.
XV.— An office copy of the affidavit of the person appointed to sell,
of the result of the sale, with the bidding paper and particulars therein
referred to, are to be left at Chambers at least one clear day before the
day appointed for settling the certificate of the result of the sale.
XVI. — Receivers' accounts are to be delivered at Chambers on or
before the day appointed for that purpose, and in default, the receiver will
be liable to the consequences imposed by the General Order of 23rd
April, 1796.
XVII. — All accounts, copies and papers, left at Chambers, are to be
APPENDIX. 231
written on foolscap paper bookwise, unless the nature of the document
renders it impracticable to do so.
XVIII. — Where any cause originating in Chambers shall, at the
original or any subsequent hearing thereof, have been adjourned for fur-
ther consideration, such cause may, after the expiration of eight days
and within fourteen days from the filing of the certificate of the chief
clerk of the Judge to whose Court the cause is attached, be brought on
for further consideration by a summons to be 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 prescribed by the Order No. I., of the
16th October, 1852, and set forth in the schedule A thereto ; and the
object of the application may be stated as follows : — " That this cause,
the further consideration whereof was adjourned by the Order of the
day of , 185 — , may be further considered."
This summons is to be served six clear days before the return.
XIX. — Upon applications for the appointment of guardians of in-
fants and allowance for maintenance, the evidence is to show —
1. The ages of the infants.
2. The nature and amount of the infants' fortunes and incomes.
3. What relations the infants have.
XX. Upon applications to obtain the sanction of the court to infants
making settlements on marriage under the act of 18 & 19 Vict. c. 43,
evidence is to be produced to show —
1. The age of the infant.
2. Whether the infant has any parents or guardians.
3. With whom or under whose care the infant is living, and if the
infant has no parents or guardians, what near relations the
infant has.
4. The rank and position in life of the infant and parents.
5. What the infant's property aiid fortune consists of.
6. The age, rank and position in life of the person to whom the in-
fant is about to be married.
7. What property, fortune and income such person has.
8. The fitness of the proposed trustees, and their consent to act.
The proposals for the settlement of the property of the infant and of
the person to whom such infant is proposed to be married are to be sub-
mitted to the Judge.
XXI. For the purpose of procuiing the appointment of a guardian to
infants under the Act of Parliament of 19 & 20 Vict. c. 120j a^i the
10th General Order of 15th November, 1856,^—" tit^j^^^Ji,^k, Ssr^^^f^-s-iui
A summons should be taken out in the names of the infants by a next
friend in the form used for originating proceedings in Chambers, entitled
in the same manner as the petition or intended j)etition,— that , or
some other proper person or persons, may be appointed guardian or guar-
dians of the said infants for the purpose of making an application on
behalf of the said infants [or consenting on behalf of the said infants to
an application] to the Court under the provisions of the above act. In
case the apphcation to the Court is to be made on behalf of the infants,
the guardian must be appointed before the petition is presented. If the
232 APPENDIX.
guardian is to consent to an application, the guardian may be appointed
either before or after the petition is presented.
Upon the application to appoint such guardian the following evidence
is to be adduced : —
1. The age of the infant.
2. Whether he has any parent, testamentary guardian, or guardian
appointed by the Court of Chancery.
3. Where and under whose care the infant is residing, and at whose
expense he is maintained.
4. In what way the proposed guardian is connected with the infant,
and why proposed, and how qualified to be appointed.
5. That the proposed guardian has no interest in the intended appli-
cation, or if he has, the nature of his interest, and that it is not
adverse to the interest of the infant.
6. The consent of the guardian to act.
7. The nature of the intended application to the Court.
XXII. — For the purpose of procuring the direction of the Judge for
leave to make or consent to an application on behalf of infants or
lunatics under the said act of 19 & 20 Vict. c. 120, and the 10th General
Order of 15th November, 1856, a summons is to be taken out after the
petition is presented in the ordinary form, entitled in the same manner as
the petition, by the guardian of the infants or committee of the lunatic,
that he may be at liberty on behalf of the infant or lunatic to make the
application [or consent to the application] to the Court proposed to be
made by the petition presented to the Lord Chancellor [or Master of the
Rolls] on the day of .
Upon this application the guardian or committee should make an
affidavit that he believes it to be proper and for the benefit of the infant
or lunatic that the application proposed to be made should be made [or
consented to] on behalf of the said infant or lunatic, and such other
evidence, if any, should be adduced, as the circumstances of the case
may require, to show the propriety of the application so far as the infant
or lunatic is concerned, and tne petition should be produced.
XXIII. — For the purpose of procuring the directions of the Judge,
pursuant to the 3rd General Order of 15th November, 1856,
A summons is to be taken out after the petition has been answered,
entitled in the same manner as the petition, that directions may be given
in what newspapers the notices required by the act are to be inserted.
The petition is to be produced on the return of the summons, and the
Judge's direction will be written on the petition and signed by his chief
clerk.
XXIV. The forms* set forth in the schedule hereto are to be adhered
to, and only to be varied in so far as may be necessary to meet the cir-
cumstances of the case.
John Romilly, M. R.
Rich" T. Kinderslet, V.-C.
John Stuart, V.-C.
W. P. Wood, V.-C.
• The forms are those numbered in this work 288, 289, 290, 291, 292, 293, 307,
308, 309, 310, 321, 322, 325, 326, 327, 328, 329, 330 and 331, each having, within,
a parenthesis, the number of the corresponding form in the Schedule.
INDEX
FORMS AND NOTES.
N.B. — The numbers refer to the pages; and where letters, mithin parentheses,
are added, the notes are referred to.
ABSTRACT, affidavit verifying examination of, 187.
ACCOUNT,
bill for, 13.
what statements it should contain, 13 (a), (i).
bill by tenant in common, 14 (6).
as to surcharging settled account, 14 (A),
of real and personal estate, prayer for, 16.
of personal estate, 175.
of rents and profits, 176.
affidavit verifying accounts, as to real and personal estate, 177.
where fund carried to separate account, petition, 76, 77.
practice as to, 76 (n), 77 (o).
of real and personal estate, decree for, 130.
receiver's account, 200.
See " Regulations."
ACCOUNTS,
effect of settlement of, in case of a company, 6 («).
summons to proceed with, 162.
to leave, 163.
See "Regulations."
ACCOUNTANT-GENERAL,
prayer in bill directing transfer of fund to credit of another cause, 30.
notice to invest money, 58 (a).
payment of money to, under "Trustee Relief Act," 115.
ACCUMULATION,
of funds, statement in bill, as to, 24. ^
trusts for, cases upon, 25 (9).
INDEX TO FORMS AtfD NOTES.
ACQUIESCENCE,
statement in answer of, 53.
where cestui que trust acquiesces, cases as to, 53 (o).
ADDRESSES OF BILLS, 1.
ADEMPTION. See " Satisfaction."
ADJOURNMENT. See " Regulations."
ADMINISTRATION,
form of decree in administration suit, 130.
where mixed fund, 131 («).
practice as to administration summons, 154.
summons for, 155.
affidavit in support of, by creditor, 170.
by legatee, 170.
by next of kin, 171.
summons to have conduct of administration cause, 168.
ADMISSIONS, form of, 147.
ADULTS AND INFANTS, commencement of answer by, 49.
ADVERTISEMENTS,
for creditors to come in under decree, 188.
under leases and sales of Settled Estates Act, 188.
See "Regulations.^'
AFFIDAVITS,
preliminary observations, 99.
how they should be intituled, 99.
should contain proper description of deponent, 99.
should contain material statement of facts, 99.
should be divided into paragraphs, 99.
and expressed in first persbn, 99.
before whom to be sworn, 99, 100.
fees for administering oaths, and for exhibits, 100.
should be filed before being used, 100.
as to costs of affidavits of improper length, 100.
AFFIDAVITS IN SUITS,
general form of, 100.
form of, to be annexed to interpleader bill, 101.
of secretary to public company, to be annexed to interpleader bill, 101.
of plaintiff, not having deeds in his possession, to annex to bill, 101.
as to affidavit under Merchant Shipping Act, 101 (e),
to obtain order to sue or defend mformi pauperis, 102.
of service of notice of motion, 102.
of personal service of a bill or claim, 102.
of service of a bill or claim at dwelling-house of defendant, 103.
of service of an amended bill or claim on solicitor of defendant, 103.
of delivery of interrogatories, 103.
of service of interrogatories on solicitor of a defendant, 103.
to obtain order assigning guardian ad litem to an infant defendant, 104.
of tender of costs where defendant taken under attachment or by messen-
ger, 104.
of service of a petition, 104.
of having cast up the schffiules to answer, 105.
in support of motion to appoint representative ad litem, 105.
INDEX TO FORMS AND NOTES.
AFFIDAVITS IN SVlTS—cmiinued.
of correctness of translation into English of a document, 106.
identifying a person named in certificate of death or burial, 106.
verifying parish register as to the burial of the party, and as to his identity,
106.
of the execution of a deed by attesting witness, 107.
of execution of deed by a person not a witness to the execution, 107.
to obtain order to examine witness de bene esse, 108.
to obtain order for a commission or for an examiner to examine witness
abroad, 108.
of service of subpoena to hear judgment, 108.
of being served with subpoena to hear judgment, 109.
verifying examination of a married woman and the commissioner's certifi-
cate, 109.
of no settlement, 110.
of there being a settlement, but not affecting the fund, 110.
of service of decree or order, 110.
of service of subpoena for costs. 111.
verifying amount of interest to be paid into Court, 111.
in support of petition for leave to appeal to the House of Lords in formi
pauperis, 112.
by an executor to obtain order to restrain action after decree, 112.
of mortgagee or his attorney attending to receive mortgage money, 113.
to obtain writ of distringas, 113.
to obtain money paid into Court under Railway Act, 114.
of trustee upon transferring fund under Relief Act, 114.
as to fitness of trustee under Trustee Act, 116.
verifying consent of new trustee to act, 116.
AFFIDAVITS, FORMS OF, IN JUDGES' CHAMBERS,
of plaintifi', in support of an administration summons by creditor, 170.
the like, by a legatee, 170.
the like, by next of kin, 171.
of service of summons originating proceedings in chambers, 171.
of service of summons not being a summons originating proceedings, 173.
as to production of documents, 173.
verifying accounts as to real and personal estate, 177.
where no rents have been received, 180.
to prove debt, 180.
for work and labour done, 181.
for goods sold and delivered, 181.
to prove a debt on a bill of exchange or promissory note, 181.
to prove a bond debt, 181.
" to prove a judgment debt, 182.
in support of application for appointment of guardian to infant, 1 82.
verifying consent of proposed guardian of infant to act, 183.
in support of application to amend bill, 183.
for leave to file voluntary answer, 184.
in support of application for special appointment of an examiner, 184.
in support of application for a stop order, 184.
of result of sale, 185.
verifying receiver's account, 186.
verifying abstract, 187.
verifying ingrossment of deed settled in chambers, 187.
See " Regulations."
AFFIRMATION,
by Quaker, 101.
by other persons, 101.
R 2
INDEX TO FORMS ANB NOTES.
e
AGREEMENT,
bill for specific performance of, 28.
what a sufScient signing of agreement, 28 (y).
as to part performance, 29 {z).
claim of benefit of Statute of Frauds in answer to bill for performance of,
54 and n. ( p).
ALLEGATIONS,
in bill, as to, 7.
See also titles, " Sills," and " Statements."
ALLOTTEES OF SHARES, bill by, 6 («).
ALTERATIONS. See " Regulationt."
AMENDMENT,
amendment of title at the hearing in suit by husband and wife, 2 (e).
petitions for leave to amend bill, 68, 69.
affidavit in support of application to amend bill, 183.
by whom such affidavit should be made, 183 (x).
ANNUITIES AND ARREARS DUE, list of, 198.
ANSWER,
general form of, 48.
should be divided into paragraphs, 48 (a).
reference to a document, 48 (cj.
answer of an infant, 49.
of adults and infants, 49.
in case of an insufficient answer, 50.
further answer to original bill, and answer to amended bill, 50.
answer to original bill, and bill of revivor and supplement, 50.
of lunatic and his committee, 50.
statements in answer,
by husband disclaiming interest, 50.
of a feme covert separated from her husband, 50.
answer and disclaimer, 51.
where a defendant objects to answer particular interrogatories, 51.
of objection to produce documents, 52.
by mortgagee raising defence of the Statute of Limitations, 52.
of trustee of acquiescence on the part of cestui que trust, 53.
claim of benefit of Statute of Frauds, 54.
notice of filing, 60.
evasive answer, as to, 60.
form of petition to take answer without oath, 67.
summons for further time, 158.
order to read an affidavit as, 120.
affidavit on application for leave to file voluntary answer, 184.
See also " Regulations."
APPEAL,
notice of motion of, 64.
order as to, 64 (s).
practice as to, 84 (z).
petition of, to Lord Chancellor or Lords Justices, 82.
as to time within which appeal should be presented, 83 (x).
efiect of petition of appeal and rehearing, 83 (jr).
order to set down appeal, 124.
petition for leave to appeal to House of Lords in formi pauperis, 84.
of appeal to the House of Lords, 85.
INDEX TO FORMS AND^OTES.
AFPEAL— continued.
affidavit where appeal in formi pauperis, 112.
certificate in support of petition to appeal informd pauperis, 149.
certificate of service of notice of intention to appeal to the House of Lords,
149.
case on appeal, 149.
APPORTIONMENT,
statute as to, 77 (o).
statementin petition as to, 77.
among creditors, list of, 199.
ASSETS,
as to joint and separate, 26 (s).
as to investment by executor, 36 CO-
ASS IGNEE,
bill by assignee of debt, allegation in, 25.
cases, 25 (a).
ASSIGNEES,
of bankrupt, commencement of bill by, 3.
supplemental bill by, 34.
notice to file supplemental bill, 62.
of insolvent debtor, 3.
order substituting new assignee as plaintiff, 122.
ASSURANCE COMPANY, bill by, 5.
BANK,
Bank of England, commencement of bill by, 4.
of Scotland, commencement of bill by, 4.
plea to bill by Bank of Scotland, 4 (p).
statutes as to Banks of England, Ireland and Scotland, 4 (m).
Bank of England not necessary party to suit, when, 37 (n).
as to restraining order and distringas against, 37 (k).
BANKING COMPANY, JOINT-STOCK,
commencement of bill by, 4.
statutes as to, 4 (q),
BANKRUPT,
commencement of bill by assignees of, 3.
as to bill by bankrupt, 3 (i).
as to notice to dismiss bill where plaintiff becomes bankrupt, 62 (o).
And see "Assignees."
BIDDINGS,
summons to open, 165.
practice as to opening, 165 (y).
See " Regulations."
BILL OF COSTS. See title " Costs."
INDEX TO FORMS AND NOTES.
»
BILLS,
general form of, addresses and titles to, I.
commencement of, 1.
in suits by the crown, 2.
of information, 2.
of information and bill, 2.
of bill by husband and wife, 2.
by wife suing alone, 2.
by infant, 3.
by committee of lunatic, 3.
by assignees of bankrupt, 3.
by assignee of insolvent debtor, 3.
by municipal corporation, 3.
by Bank of England, 4.
by Bank of Scotland, 4.
by East India Company, 4.
by railway company, 4.
by company completely registered, 4.
by foreign corporations, 4.
by joint-stock banking company, 4.
by secretary of assurance company, 5.
by creditor, 5.
by shareholder in a company, 5.
as to fi-ame of, 7-
bill of foreclosure, 9.
indorsement on bill, 11.
for an account, 12.
by creditor against devisees and executors of testator, 14.
by next of kin of an intestate for payment of their shares of the estate,
17.
by a feme covert and her children for a settlement of her share in property
derived under a will, IS.
of interpleader, 21.
prayer in a bill of interpleader by an insurance company, 23.
statements in bills,
where a joint-stock banking company are suing, 23.
in case of a banking company, where their public officer is made a
defendant, 23.
where secretary of a company sues, 23.
where deeds not in plaintiff's possession, 24.
where defendant out of jurisdiction, 24.
as to accumulation of funds, 24.
by assignee of debt against debtor, 25.
prayer in a bill seeking an account of partnership dealings, 25.
prayer in a bill against executors and residuary legatees, where a question
of satisfaction raised, 26.
charges and prayer in bill to rectify settlement and remove trustees,
27.
statements and prayer in a bill for specific performance of a parol agree-
ment, 28.
prayer for transferring fiind from the credit of one cause to that of an-
other, 30.
charges and prayer in a bill to obtain a writ of ne exeat regno, 30.
charge and prayer in a bill of discovery, 31.
bill of revivor and supplement, 32.
supplemental bill by creditors' assignee, 34.
bill of revivor and supplement, 35.
supplemental statement, 38.
See "Regulations." ^^ _
'Sweaty ^ inU 1^ hi>yr7Ui^^ 3^-
h
INDEX TO FORMS AND NOTES.
BOND DEBT, affidavit to prove, in Judges' Chambers, 181.
CASE,
on appeal to the House of Lords, 149.
special case, 145.
CERTIFICATE,
as to, under Charitable Trusts Act, 2 (rf).
form of, as to lower scale of fees, 9.
in order to set down cause, 63 (p).
certificate of counsel not necessary upon notice of motion of appeal, 65.
as to varying certificate of chief clerk, 66 (a).
form of, 195.
notice of motion to vary, 66.
form of, on petition to sue in formi pauperis, 70.
form of, on petition of appeal to Lord Chancellor or Lords Justices, 83.
on petition to House of Lords, 86.
as to, of copies of public books, 106 (m).
of death or burial, affidavit verifying, 106.
affidavit identifying person named in certificate, 106.
form of, upon appeal to the House of Lords in formi, pauperis, 149.
of notice of intention to appeal to the House of Lords, 149.
of examination of married woman entitled to fund in Court, 150.
under Settled Estates Act, 151.
See " Regulations."
CHARGES, as to general charges in bill, 7.
CHARGING ORDERS,
petition for, 78.
practice and cases as to charging orders, 78 (;>).
CHARITABLE TRUSTS ACT,
forms of orders under,
order approving of a scheme, 205.
approving of a scheme, appointing new trustee, and conset^uential
directions, 205.
as to copyhold land, 206.
as to cboses in action, 206.
as to documents, 206.
as to stock (permission to transfer), 206.
as to stock (direction to transfer), 207.
as to Exchequer Bills, 207.
forms of orders under the Charitable Trusts Act and the Trustee Act, 1850,
commencement of order, 207.
where joint trustees of stock, 208.
where sole trustee of stock, 208.
where sole trustee of stock refuses to transfer, 208.
where one of several trustees of stock refuses to transfer, 209.
where stock is standing in the name of a deceased person, whose repre-
sentative cannot be found, or refuses to transfer, 209.
cases on, 156 (d).
meaning of 28th section of the act, 156 (d).
form of summons under, 156, 157.
jurisdiction in Chambers, 205.
general order as to appeals, 205 (o).
orders as proceedings in County Courts, 205 (a).
INDEX TO FORMS AND NOTES.
CHOSE IN ACTION,
order under Charitable Trusts Act, 206.
under Trustee Act, 218, 219, 221, 222, 225.
CLAIM. See " Regulations."
CLAIMS, as to, 38.
CLASS INQUIRIES, direction in decree as to, 126.
COLLUSION, as to charging in bill, 5.
COMMENCEMENTS OF SUITS,
general form, 1.
form,
in suits on behalf of the crown, 2.
where there is a relator, 2.
by information and bill, 2.
by husband and wife, 2.
wife suing alone, 2.
infant, 3.
lunatics, 3.
assignees of bankrupt, 3.
assignee of insolvent debtor, 3.
municipal corporation, 3.
Bank of England, 4.
East India Company, 4.
railway company, 4.
company completely registered, 4.
foreign corporations, 4.
joint-stock banking company, 4.
secretary of an assurance company, 5.
creditor suing on behalf of himself and others, S.
shareholder in a company, 5.
smother form, 5,
For commencements of Pleas, Demurrers, Answers, Petitions and Decrees,
those respective titles.
COMMISSIONERS FOR REDUCTION OF NATIONAL DEBT,
prayer in petition seeking re-transfer of fund, 78.
as to service of petition, 78 (9).
as to costs, 78.
COMPANY,
commencement of bill by, 4.
by shareholder in, 5.
as to suits respecting joint-stock companies, 6 (u).
statements in bill as to, 23.
where secretary sues, 23, 24.
CONCISE STATEMENT, form of, 143.
CONDITIONS OF SALE, form of, 191.
See " Regulations."
CONSENT,
upon small sums being paid out of Court, 67.
under Infants' Settlement Act, 81 (<).
INDEX TO FOBMS AND NOTES.
CONSENT— COTirinBerf.
form of affidavit verifying consent of new trustee to act, 116.
the like of proposed guardian of an infant, 183.
form of such consent, 190.
CONSOLIDATED BANK ANNUITIES, as to investing in, 58 (a).
CONTINGENT RIGHTS, forms of orders under Trustee Act, in case of con-
tingent rights, 213, 214, 216.
CONVEYANCE, forms of orders directing, under Trustee Act, 217—224.
COPYHOLD,
order as to copyhold land under Charitable Trusts Act, 206.
vesting order under Trustee Act, 207 (d).
introductory part of order as to, under Trustee Act, 214.
vesting order as to, 216.
CORPORATIONS, suits by, 4 and n. {p).
COSTS,
as to security for, in case of a bill, 1.
in case of petition, 67.
general order as to, 9, 65 (u).
in cases where bill demurrable, 42.
of demurrer, 45.
taxation of bill of costs, 65 (a),
reviewing taxation, 65 (tt).
costs of petition where money carried to separate account, 67.
under Trustee Relief Act, 90.
form of petition for solicitor to deliver bill of, 75.
to tax bill of costs, 75, 76.
costs payable by railway company, 89 (a),
bill of costs of receiver's appointment, 202.
the like, of parties to the suit on passing receiver's account, 204.
° COVENANT, voluntary covenant ^uffic^u^bt to support a Seditor's suuT"
17(/).
CREDITOR,
commencement of bill by, 5.
cannot, except on special grounds, sue debtor to the testator, 5 (r).
bill by, 14.
decree in creditors' suit only provides for payment of debts, 16 (e).
form of decree, 127.
of decree in respect of separate estate of married woman, 128.
order on further consideration in suit of creditor to administer separate
estate of married woman, 129.
in what cases creditor may maintain such a suit, 129 (a).
CREDITORS. See " Begulatimt."
CROSS-EXAMINATION,
notice of appointment for, before examiner, 61.
practice as to, 62 (»).
CURATOR, as to curator bonis suing in the name of a lunatic, 3 (A).
CUSTODY, form of petition for discharge of defendant out of, 71.
INDEX TO FORMS AND NOTES.
DEATH, presumption of, from absence, 93.
DEBT,
statement in bill by assignee of, 25.
when assignee of debt entitled to sue in equity, 25 (r).
forms of affidavit in administration suits in Judge's Chambers, 170, 171.
list of debts allowed, 197.
DECLARATORY DECREE, as to, 130 (»).
DECREE,
notice of motion for, 63.
practice as to, 63 ( p),
to settle minutes of decree, 63.
to pass decree, 64.
to stay proceedings under, 66.
practice as to, 66 {y).
notice of decree, 66.
petition to enter nuTic pro tunc, 74.
time for appealing from, 83 (x).
affiSavit of service of decree, 110.
to obtain order to restrain action after decree, 112.
a decree ought to contain statement of evidence, 126 (p),
DECREES AND SPECIAL ORDERS,
form of introductory part of decree, 126.
introductory part of order on further consideration, 126.
decree in creditors' suit, 127.
in suit for administering separate estate of married woman, 128.
order on further consideration in like suit, 129.
decree in administration suit, 130.
for specific performance of agreement, 132.
like decree in case of sale of good-will of a business, 133.
order for sale of an estate, 133.
decree of foreclosure, 134.
order discharging order absolute of foreclosure, 136.
order enlarging time for payment of mortgage money, 136.
decree in bill by part owner of a ship for an account, 137.
order overruling demurrer, 137.
order on special case, 138.
on p.etition for payment of fund out of Court, 138,
for investment on railway petition, 140.
on petition under Trustee Relief Act, 141.
under Infants' Settlement Act, 141, 142.
confirming settlement under the same act, 142, 143.
for time to file affidavits, 188.
for witness to attend and be examined, 188.
For orders under Charitable Trusts Acts and Trustee Act, see those titles
respectively.
See also " Regulations."
DEED,
forms of,
affidavits of execution of, 107.
memorandum to be put upon, 191.
recital in deed settled in Chambers, 191.
affidavit verifying ingrossment of, 187.
INDEX TO FORMS AND NOTES.
DEEDS,
statement in bill as to, 24.
affidavit of plaintiff when they are not in possession, 101.
summons for delivery out of Court, 164.
DEFENDANT, statement in bill when defendant out of jurisdiction, 24.
DEMURRER,
when defendant should demur, 42.
when,demurrer should be filed, 42.
forms of,
title and commencement, 42.
conclusion, 43.
for want of equity, 43.
for multifariousness, 43.
demurrer and answer, 43.
for want of parties, 4^.
as to amending demurrer, 43 (<).
speaking demurrer, 43 (s).
as to form of plea and demurrer, 43 (a),
as to costs, 4S (z).
petition to set down, 71.
notice of filing, 71 (g).
to withdraw, 71.
order to set down, 118.
overruling demurrer, 137.
DEPOSITIONS, petition to use in cross cause, 73.
DIRECTIONS, in orders, 127.
DISCHARGE, to discharge order, notice of motion, 61.
DISCOVERY,
charge and prayer in bill of, 31.
as to jurisdiction of Courts of law, 31 (e).
jurisdiction in equity, 31 (e).
costs, 32 (e).
DISMISS,
to dismiss bill, notice, 62.
in case of plaintiff becoming bankrupt, 62 (o).
petition to dismiss bill, 74.
DISTRINGAS,
petition to discharge, 74.
affidavit to obtain writ, 113. ^
DIVIDENDS,
notice of motion to invest, 56, 57.
as to request to invest, 57 (a). - ,. . „. , ,
payment of, under Railway Act, to the incumbent of a livmg, 89 («).
order for payment of, 149.
investing, under Trustee Relief^ct, 115.
direction in order as to accumwtting, 127.
directions in order as to, under Charitable Trusts Act, 207, 208, 209.
the like, under Trustee Act, 218, 219, 220, 223, 227.
See note as to, 219 (|)).
INDEX TO FOEMS AND NOTES.
DOCKET, form of, of enrolment of decree, 148.
DOCUMENTS,
iqterrogatory as to, 40.
statement in answer, as to, 52.
order to prove, 119.
admission of execution of, 147.
summons for production of, 160.
the like, at solicitor's office, 160.
affidavit not necessary in support of, 160 (p).
summons to consider sufficiency of affidavit as to documents, 161.
for production of documents admitted by answer, 161.
affidavit as to production of documents, 173.
See " Regulations."
EAST INDIA COMPANY,
commencement of bill by, 4.
statutes as to, 4 (n).
ELEGIT, writs of, 153.
ENDORSEMENT. See " Indorsement."
ENROLMENT,
order to enrol decree, 121.
general order as to, 122 {g).
See also note, 86 (y).
EVIDENCE, as to copies of documents admissible in, 106 (m).
EXAMINATION,
affidavit verifying, 109.
words of course preceding, 190.
notice of motion for leave to examine witnesses de bene esse, 61.
affidavit for leave to examine witnesses de bene esse, 108.
to obtain order to examine, 108.
summons for order to file, 163.
order for witness to be examined, 189.
EXAMINER,
notice of appointment of, to take cross-examination, 61.
summons to appoint special examiner, 161.
affidavit in support of summons, 184.
EXCEPTIONS,
form o^ for insufficiency, 55.
practice as to, 55 (a),
for impertinence and scandal, 55 (a),
when exceptions should be filed, 56.
EXECUTION OF DEED, affidavits as to, 107.
EXECUTOR,
de son tort does not represent estate of testator, 8.
affidavit to obtain injunction, 112.
EXHIBIT,
form of, 99.
petition and order to read exhibits at hearing, 73, 119.
See ** Regulations."
INDEX TO FORMS AND NOTES.
FEME COVERT. See title, "Married Woman."
FILING BILL, as to, 9.
FIERI FACIAS, writs of, 153.
FORECLOSURE,
form of bill of, 9.
practice in suits for, 1 1 (x).
as to staying further prosecution of, 11 (f ).
decree of foreclosure, 134.
inquiry as to repairs, 134 (6).
as to outlay in working mines, 134 (b).
as to marshalling, 134.
decree for sale, as to, 134.
for successive foreclosures, 135 (ft),
order discharging former order absolute of foreclosure, 136.
when it will be discharged, 136 (c).
enlarging time for payment of mortgage money, 136, 137, 137 (d ).
FOREIGN CORPORATIONS, as to suits by, 4, and n. {p).
FORMA PAUPERIS,
petition for leave to sue in, 69.
to defend, 70.
affidavit, form of, 102.
petition for leave to appeal to House of Lords, 84.
affidavit in support, 112.
FRAUD, general allegation, in bill, not sufficient, 7.
FUND,
prayer in bill for transferring, 30.
notice of motion to transfer into Court, 57.
FURTHER CONSIDERATION,
summons for, of cause or matter in chambers, 161.
See " Regulations."
GENERAL ALLEGATIONS, in bills, as to, 7.
GOOD-WILL,
decree for specific performance in case of sale of, 133.
as to decreeing specific performance, 133 (y).
GUARDIAN,
originating summons for, 155.
affidavit in support of summons, 182.
verifying consent of guardian to act, 183,
See " Segulations."
GUARDIAN AD LITEM,
petition to assign, 70.
affidavit in support, 104.
order appointing, 118.
HABEAS CORPUS, petition for,*?2.
HUSBAND,
when to be made defendant, 2.
statement in answer by, 50.
INDEX TO FORMS AND NOTES.
HUSBAND AND WIFE,
commencement of bill by, 2.
when wife to be joined as a co-plaintiff, 2 (e).
IDENTIFYING, affidavit, 106.
INDORSEMENT,
on bill, 11.
of solicitor's name and address, 11.
INFANT— INFANTS,
commencement of bill by, 3.
bill should contain address and description of next friend, 3 (/).
written authority of next friend, 2 (e).
form of bill by, and their mother, for a settlement, 18.
answer of an infant, 49.
of adults and infants, 49.
what to be attended to in framing answer, 49 (e).
course to be pursued where infant does not appear, 49 (e),
form of petition upon intended marriage of ward of Court, 79.
what makes infant ward of Court, 79 (r).
order restraining intercourse with, 79.
as to jurisdiction over property, 79.
right of interference with father of infant, 81 (<).
Infants' Settlement Act, 79 (r), («).
terms of settlement, 79.
form of petition under Infants' Settlement Act, 80.
See also " Settlements qf Infants' Act."
practice as to, SO, 81 (s).
common order under, 141, 142.
special order under, 142, 143.
prayer in petition by mother of infant children, under 2 & 3 Vict. u. 54,
practice as to, 81 (t).
inquiry in decree as to maintenance, 127.
summons for order as to service of decree on infant, 162.
summons for leave to apprentice, 167.
affidavit in support of application for appointment of guardian to infant,
182.
infant trustees and mortgagees, orders in case of, 212, 213, 226.
See " Regulations,"
INFORMATION,
commencement in suits by, 2.
practice as to, 2 (_d ).
INJUNCTION,
prayers in bills for, 13, 16, 22, 26, 37.
notice of motion for injunction to stay proceedings at law, 58.
practice as to, S8 (i).
notice of motion to restrain action against executor, 59.
practice as to, 59 (c).
notice of motion for special injunction, 59.
affidavit by executor to obtain injunction, 1 12.
INQUIRIES,
class inquiries in decree, 126.
inquiry as to maintenance, 126.
INDEX TO FORMS AND NOTES.
INSOLVENT DEBTOR, commencement of bill by assignee of, 3.
INTEREST,
as to charging executor with, 86 (m),
affidavit verifying amount of, 111.
INTERPLEADER,
when bill maintainable, 20.
what the bill should contain, 20.
affidavit that plaintiff does not collude to be annexed, 20.
the defendants should state their respective cases in their answers, 20.
principle upon which Court interferes, 20.
cases in equity upon the subject, 20.
at law, 20.
practice as to, 21.
form of bill, 21.
by an insurance company, 23.
by whom affidavit to be fiiade, 22 (n).
INTERROGATORIES,
form of,
as to a deed, 39.
as to documents, 40.
as to personal estate, 40.
as to real and leasehold estates, 41,
as to delivery of, in injunction cases, 59 (i).
affidavit of delivery of, 103.
of service of, 103, 104.
interrogatories for examination of a party under decree, 190.
INTRODUCTORY
part of decree, 125.
the like, of order on further consideration, 126.
INVESTMENT,
general order as to, 58 (a).
order for investment on railway petition, 140.
JOINT STOCK COMPANY. See title, " Company."
JUDGES' CHAMBERS,
proceedings in, 154, 170.
See also " Regulations" and the various particular titles.
JURATS, form of, 152.
LEASES AND SALES OF SETTLED ESTATES,
petition under act for facilitating, 96.
practice as to, 96 {g).
certificate of examination of married woman under, 151.
See " Regulations."
LEGACIES, list of, remaining unpaid, 198.
LETTER MISSIVE, petition for, 69.
LUNATIC,
commencement of bill by, 2.
of answer by, 50.
Trustee Act, in case of lunatic trustees or mortgagees, 211.
INDEX TO FORMS AND NOTES.
MAINTENANCE OF INFANTS. See " Infant"—" Regulatiom."
MARRIED WOMAN,
commencemeut of bill by, suing alone, 2.
practice as to suits by, 2i(e).
statement in answer, 50.
bill by, and by her children for a settlement, 18.
principle of wife's equity for a settlement, 19 (i).
as to the property to which it extends, 19.
when it attaches, 19.
amount to be settled, 19.
cases, 19.
^terms of settlement, 19.
occasionally embodied in order, 93 (d).
petition to answer separately, 72.
petition by, in case of desertion by first husband, 91.
service of order, 92 (c).
form of affidavit of no settlement, 110.
examination of, and certificate, ISO.
affidavit verifying examination, 109.
examination under Settled Estates Act, 151.
separate estate, decree for administering, 128.
order on fiurther consideration, 129.
MERCHANT SHIPPING ACT, as to affidavit, 101 (e)w
MINUTES OF DECREE, notice to settle, 63,
MISJOINDER,
statute as to, 6, 8.
distinction between misjoinder and multifariousness, 8.
MIXED FUND, decree in administration suit in case of, 131.
MONEY,
into Court, notice of motion for payment of, 57.
as to investing, 58 (a).
See also " Payment."
MORTGAGE— MORTGAGEE.
form of bill by mortgagee to foreclose, 9.
as to ordering sale of mortgaged estate, 9 {x).
statement in answer, setting up Statute of Limitations, 52.
petition by mortgagee, under Railway Act, 87.
affidavit by mortgagee of having attended to receive mortgage money, 113.
inquiry in decree as to mortgages, 131, 132.
decree for specific performance of sale of mortgage debt, 132.
for decree and orders in foreclosure suit. See " Foreclosure."
orders under Trustee Act, in case of infant mortgagee, 212, 213.
under sect. 19, in case of death of mortgagee, 216.
order appointing trustee of mortgaged estates, 225.
MOTHER, petition of, as to custody of her children, 81.
MOTIONS, 57.
See title, " ,»ro«ces."
MULTIFARIOUSNESS,
as to, 8.
form of demurrer for, 43.
demurrer, ore tenus, for, 43 (<)•
INDEX TO FORMS AND NOTES.
MUNICIPAL CORPORATIONS, proper style of, 3.
NE EXEAT REGNO,
charges and prayer in bill to obtain writ of, 30.
what statements the bill and affidavit should contain, 31 (c).
form of writ, 153.
NEXT FRIEND,
written authority to be signed by, 2 (d ), 3 (/).
order for, to give security for costs, 117.
summons to substitute a next friend, 167.
NOTICES
notice of motion, how it should be framed, 51.
as to mode and time of service, 11, 60 (£),
forms of notices of motion,
to transfer stock or pay, money into Court, 57.
for injunction to stay proceedings at law, 58.
for injunction to stay action brought against executor, 59.
for special injunction, 59.
for appointment of receiver, 59.
to next of kin, of application for a representative ad litem, 60.
of filing answer, 60,
to take evasive answer off the file, 60.
to discharge order for irregularity, 61.
for leave to examine witnesses, de bene esse, 61.
of appointment before examiner to take cross-examination, 61.
to dismiss bill for want of prosecution, 62.
for decree, 63.
to settle minutes of decree, 63.
to pass decree, 64.
to review taxation of bill of costs, 65.
to stay proceedings pending appeal, 65.
to stay proceedings, a decree having been made in another suit, I
notice of decree under 15 & 16 Vict. u. 86, s. 42, r. 8. ,66.
to vary chief clerk's certificate, 66.
NUNC PRO TUNC, order to enter decree, 74.
OBJECTIONS, form of, to taxation of bill of costs, 147.
ORDERS, GENERAL,
31st Order of April, 1828..45(si).
40th Order, 117 (a).
21st December, 1833. . 126 (p).
1st May, 1837.. 1 (a).
10th May, 1839.. 153.
26th August, 1841,
36th and 37th Orders, 45 (x).
38th, 51 (ft).
43rd, 119 {d).
17th November, 1841.. 1 (a), 114 (j).
10th December, 1841 . .114 («).
11th April, 1842,
nth and 12th Orders, 111 («)•
INDEX TO rOBMS AND NOTES.
ORDERS, GE^'ETLAh— continued.
7th August, 1842,
40th Order, 163 (t).
October, 1842,
18th Order, 124 (m).
23rd, 60 (A), 71 (g).
24tb, 96 (a).
17th March, 1843,
1st and 2nd Orders, 148 (e).
8th May, 1845,
12th Order, 158 (h).
16th and 45th, 45 (x), («).
46th, 71 (g).
69th, 183 (a).
71st, 158 (»).
120th and 121st, 65 (u).
125th, 32 (c), 124 (n).
schedule to orders, 153,
10th June, 1848,
8th Order, 89.
generally, 91 (6), 116.
22nd AprU, 1850.. 38.
November, 1850,
8th and 23rd Orders, 56 (a).
20th, 61 (A).
7th May, 1852.. 116.
7th August, 1852,
concerning appeals, 83 (x), 86 (y), 122 (g).
enrolments, 148 (e).
as to answers, 48 (a).
7th Order, 59 (*).
22nd and 28th, 63 (p).
24th and 25th, 159 (m).
30th, 55 (o).
40th, 66 (z).
44th, 38 (p).
45th, 59 (J).
Schedules (C.) and (F.), 39 (?), 155 (a).
16th October, 1852,
5th Order, 172 (s).
6th, 157 (c), 172 (ft).
10th and 11th, 131 (ii), 197 («)•
12th, 134 (z).
13th, 14th and 15th, 194 (?).
20th, 164.
33rd, 34th and 35th, 188 (ft).
44th to 52nd, 195 (s).
53rd, 194 (j).
3rd June, 1853..58(a).
9th December, 1853.. 205 (a).
6th March, 1854.. 205 (o).
June, 1854.. 159 («).
12th, 13th, 14th and 15th Orders, 65 («).
13th January, 1855.. 159 (I).
4th and 5th Orders, 62 («).
8th, 115.
INDEX TO FORMS AND NOTES.
ORDERS, GENERAL-coniinweA
12th November, 1856,
1st Order, 77 (o).
2nd, 90.
4th, 212, 223 (c).
15th November, 1856,
4th Order, 188 (»).
30th January, 1857 . . 65 («).
2nd February, 1857.. 57, 60 (ft), 67.
18th July, 1857.. 163.
^'^a/^t^ /esq -S^. MS. I6z.
ORDERS OF COURSE,
for service of bill on defendant out of jurisdiction, 117.
for next friend of married woman to give security for costs, 117.
appointing guardian ad litem of infant defendant, 118.
for plaintiff to appear for defendant out of the jurisdiction, 118.
to set down demurrer, 118.
authorizing service of notice of replication and subpcena to hear judgment
out of the jurisdiction, 119.
for leave to prove exhibits by affidavit at hearing, 119.
for leave to read answers upon hearing of cause, 120.
to take bill pro confesso, 121.
nisi to enrol decree, 121.
substituting new assignee as plaintiff, 122.
of revivor at instance of creditor, 122.
supplemental order against provisional assignee of insolvent debtor, 123.
to change solicitor, 123.
for payment of costs by plaintiff in bill of discovery, 124.
to set down appeal for hearing, 124.
for taxation of solicitor's bill of costs under the 38th section of the Soli-
citors' Act, 124.
ORDERS SPECIAL. See "Decrees;" "Charitable Trusts Acts;" "Trustee
Act;" " Trustee Reli^ Act."
PARTICULARS OF SALE. See " Regulations."
PARTIES,
to bill, regulations as to, 8.
in case of joint stock companies, 5 (u).
demurrer for want of, 45, n. (y), (z).
plea for want of, 47.
PART PERFORMANCE OF AGREEMENT. See "Specific Performance."
PAYMENT,
of money into Court, 57, 58.
order for, to solicitor of plaintiff in creditor's suit, 129.
summons for payment of purchase-money into Court, 166.
for payment to personal representative of creditor, 168.
PERFORMANCE. See " Specific Performance."
PERSONAL ESTATE,
interrogatory as to, 40.
account of, direction for in decree, 127.
s2
INDEX TO FORMS AND NOTES.
PERSONAL REPRESENTATIVE,
course of proceeding where no personal representative of deceased person
interested, 8.
See also "Representative ad Litem."
PETITIONS,
as to service of, 66.
security for costs, 66.
costs of, where money carried to separate account, 66.
affidavit of service of, 104.
forms of petitions of course,
to take answer of defendant without oath, 67.
to amend bill, 68.
to amend bill after answer not requiring further answer, 68.
to amend bill after answer requiring further answer, 69.
for letter missive, 69.
of plaintiff to sue in formA pauperis, 69.
of defendant to defend in formd pauperis, 70.
to assign guardian ad litem to infant defendant, 70.
for discharge of defendant out of custody, 71.
by plaintiff to set down plea or demurrer for argument, 71.
to withdraw plea or demurrer, 71.
that a feme covert may answer separately, 72.
of plaintiff for habeas corpus to bring defendant to bar of the Court, 72.
to use depositions in a cross cause, 73.
to change solicitor, 73.
to prove exhibits by affidavit, 73.
for plaintiff to dismiss hill with costs, 74.
to enter decree nunc pro tunc, 74.
to discharge distringas on stock, 74.
for solicitor to deliver his bill of costs for taxation, 7d.
to tax solicitor's bill delivered, 75.
forms of special petitions,
for transfer of fund to person becoming entitled thereto, 76.
for charging order, 78.
prayer of, seeking re-transfer of stock from Commissioners for the
Reduction of the National Debt, 78.
upon marriage with infant ward of the Court, 79.
under Infants' Settlements Act, 80.
prayer of, by mother of infant children for access to them, 81.
petition of rehearing and appeal, 82.
for leave to appeal to the House of Lords in formd pauperis, 84.
affidavit in support of, 112.
of appeal to the House of Lords, 85.
of right, 86.
under Railway Act to obtain compensation money, 87.
observations as to petitions under Trustee Relief Act, 89, 90.
form of petition under, 91, 92, 93.
observations on Trustee Act, 94.
form of petition under, 211.
under Leases and Sales of Settled Estates Act, 96.
course to "be pursued under, 96 {g).
summons to proceed on, when adjourned to chambers, 168.
See " Regulations."
PLEAS,
forms of,
title and commencement, 46.
conclusion, 46,
INDEX TO FORMS AND NOTES.
PLEAS^eonWnaed.
plea to part, and answer to residue of bill, 46.
for want of parties, 47.
defendant should demur and not plead, if bill demurrable, 47 (o).
as to plea of stated account and release, 47 (S).
of adverse possession, 47.
stating descent to heir, 47.
as to Statute of Frauds, 47.
Statute of Limitations, 47.
to bill for an account, 47.
to bill for foreclosure, 47.
plea of purchase for valuable consideration, 47.
as to plea being supported by an answer, 47.
double pleas, 47.
petition to set down plea, 71.
to withdraw, 71.
PRAYER FOR RELIEF,
as to, 8.
general prayer, II.
PRESUMPTION of death, doctrine of, 93 {d).
PRINTING BILLS, as to, 8.
PRIVATE CONTRACT, summons to confirm sale by, 166.
PROCEEDINGS,
at law, notice of motion to stay, 58.
pending appeal, 65.
practice as to, 65 (x).
where a decree has been made in another suit, 66.
practice as to, 66 (y).
summons for leave to attend proceedings at Chambers, 163,
PRO CONFESSO,
order to take bill, 121.
practice as to, 121 (/).
PRODUCTION OF DOCUMENTS,
summonses for, and for affidavit, 160, 131.
practice as to, 160 (o), {p).
affidavit as to, 173.
summons for, admitted by answer, 161 (q),
PROVE A DEBT,
summons for leave to, after time has expired, 169.
affidavit, general form of, to, 180.
special forms, 181, 182.
PROVISIONAL ASSIGNEE, supplemental order against, 123.
PURCHASE-MONEY, summons for leave to pay in, 166.
RAILWAY COMPANY,
commencement of bill by, 4.
petition for obtaining compensation money out of Court, 87.
affidavit in support of, 114.
order for investment on railway petition, 140.
INDEX TO FOKMS AND NOTES.
KEAL AND PERSONAL ASSETS, form of decree in case of, 130.
REAL ESTATE,
bill by creditor, as to, 14.
interrogatory as to, 41.
decree in administration suit, ISO.
for sale of, 133.
affidavit verifying accounts, 177.
where no rents have been received, 180.
See also " Sale."
RECEIVER,
prayer in administration bill for, 16, 17, 37.
in bill for account of partnership dealings, 25.
as to form of order, 26 (>).
notice of motion for appointment of, -59.
practice as to, 59 (/).
form of recognizance after order, 194.
the like, on approval of receiver before order drawn up, 195.
account of, as to real estate, 200.
as to personal estate, 201.
costs of appointment and passing account, 202.
of plaintiff or defendant of passing account 204.
affidavit verifying account, 186.
summons to proceed with account, 168.
to discharge receiver and vacate recognizance, 166.
RECITAL,
of order in settlement, under Infants' Settlement Act, 191.
of approval of judge in conveyance, 191.
RECOGNIZANCE,
summons to vacate receiver's, 166.
receiver's form of, 194.
REGISTER, PARISH, affidavit verifying, 106.
REGULATIONS of the 8th August, 1857, made by Judges, and to be ob-
served at Chambers, in the following matters —
Account, every account directed by decree or order to be numbered, 229.
Accounts,
every alteration in, to be marked with the initials of the person before
whom affidavit sworn, 230.
erasures not to be made in, 230.
not to be annexed to affidavit, 230.
to be written on foolscap paper if practicable, 230, 231.
when receiver's accounts to be left at Chambers, 230.
Adjournment,
when matter adjourned from Court to Chambers, without an order being
drawn up, registrar's note to be obtained, 229.
where cause originating in Chambers, adjourned for further consideration,
course as to, 231.
Affidavits, as to reserved bidding, frame of, 230.
Alterations,
summonses not to be altered without leave, 229.
as to, in accounts, 230.
INDEX TO FORMS AND NOTES.
REGULATIONS— con«aMed.
Answer, upon applications for time to answer, course to be adopted, 229.
Biddings, affidavit as to reserved biddings to state value of property by
reference to an exhibit, 230.
Bill, when prints of bill to.be left at Judges' Chambers, 229.
Cause originating in Chambers, course to be adopted for bringing on
for further consideration, 231.
Certificate, on exhibit to affidavit to be entitled in cause or matter, 230.
Certificate of Record and Writ Clerk,
of entry of memorandum of service of notice of decree or order, 230.
copy of, certified by solicitor, to be left at Chambers, 230.
Claim, notice of by creditor, entry of, at Chambers, what to state, 230.
Conditions of Sale, two certified prints of, to be left at Chambers, 230.
Creditors, particulars of their debts not to be annexed to affidavit, 230.
Decree,
what directions in, to be numbered, and how, 229.
with copy of, print of bill or claim to be left, 229.
note of names of solicitors to be also left, 229.
course to be adopted to procure directions for service of notice of, on
infants or persons of unsound mind, 229, 230.
copy certificate of Record and Writ Clerk of a memorandum of service of
notice of decree to be left at Chambers, 230.
Directions. See "Decree;" "Newspapers."
Documents, not to be annexed to affidavit, 230.
Evidence,
what required on applications for guardian of infants' and maintenance,
231.
the like, on applications under the Tnfants' Settlements Act, 231.
the like, on application to appoint guardian under the Leases and Sales of
Settled Estates Act, 232.
Exbibits,
not to be annexed to affidavits, 230.
certificate on, to be entitled in cause or matter, 230.
Forms, in schedule to regulations, to be adhered to, 232.
Further Consideration, how cause in Chambers to be brought on for,
231.
Guardian of Infants,
what evidence necessary on application for, 231.
the like, under the Leases and Sales of Settled Estates Act, 232.
Infants,
course to procure direction for service of notice of decree on, 229.
See also "Evidence ;" " Guardian of Infants."
Leases and Sales of Settled Estates Act, course of proceeding under,
231, 232.
LuNAWos, course to be pursued as to, on applications under the Leases and
Sale of Settled Estates Act, 232.
Maintenance of Infants, 231.
See "Evidence."
INDEX TO FORMS AND NOTES.
REGULATIONS— co««in«erf.
Newspapers, course to obtain direction as to inserting notices under Leases
and Sales of Settled Estates Act, 232.
Notice,
of eatry of claim at Chambers to state number of entry, 230.
See also " Infants."
Notices. See " Newspapers,"
Order,
copy of order for leave to attend proceedings, to be left at Chambers, 230.
Particulars op Sale, two certified prints o^ to be left at Chambers, 230.-
Receivers' Acoohnts,
as to leaving at Chambers, 230.
See also " Accounts."
Reserved Bidding. See " Biddings."
Sale,
aiBdavit of result of, when to be left at Chambers, 230.
See also "Biddings;" " Conditions of Sale ;" " Particulars of Sale."
Service,
of decree, as to procuring direction for on infants or persons of unsound
mind, 229, 230.
Settled Estates Act,
course to be pursued to obtain appointment of guardian, 231.
to procure direction for leave to apply or consent, 231, 232.
See also "Newspapers."
Settlements, on marriage of infants, course to be pursued under Infants'
Settlement Act, 231.
Solicitors, names of, to be left at Chambers with every decree or order,
229.
Summonses,
not to be altered without leave, 229.
summons to be taken out for direction as to service of notice of decree, 229.
for further consideration of cause, 231.
when summons to be taken out for directions under Settled Estates Act,
231, 232.
Time to answer. See " Answer."
Unsound Mind, Persons of. See " Service."
REHEARING,
petition of, 82.
See also "Appeal."
RELATOR,
in information, commencement of bill by, 2.
practice as to, 2 {d).
RELEASE, Judge at Chambers no jurisdiction, in administration suit by sum..
mons, to set aside release, 154. ,
RELIEF,
as to prayer for, in bill, 8.
general form of prayer for, 11.
INDEX TO FORMS AND NOTES.
REPRESENTATIVE AD LITEM,
notice to next of kin of application to appoint, 60.
practice as to, 60 (g).
affidavit in support of motion to appoint, 108.
REPLICATION,
as to notice of, 60 (A).
order for service of, abroad, 119.
RE-TRANSFER, 78.
See " Transfer."
REVIVOR,
bill of, and supplement, 32.
another form, 35.
cases under 52nd and 53rd sections of 15 & 16 Vict. c. 86. .33 (/).
commencement of answer to original bill, and bill of revivor, 50.
order of revivor at instange of a creditor, 122.
See also " Supplemental Bill."
RIGHT, petition of, 86.
SALE,
as to ordering of mortgaged estate, 11 (x).
of real estate, prayer in bill for, 16.
of stock, direction in order for, 127.
of real estate, direction for, 132.
order for sale of real estate, 133.
practice as to, 166 (z).
summons to confirm, by private contract, 166.
affidavit of result of, 185.
conditions of, 191.
SALES OF SETTLED ESTATES ACT. See " Settled Estates Act."
SATISFACTION,
prayer in bill where question raised as to, 26.
as to doctrine of, 27 (a).
SCHEDULES, affidavit of having cast up, 105.
SCHEME, order approving of, 205.
SECRETARY OF ASSURANCE COMPANY,
commencement of bill by, 5.
prayer in bill of, 23.
interpleader by, 23.
statements in bill by, 23, 24.
affidavit by, 101.
SECURITY FOR COSTS,
in case of a bill, 1.
by petitioner out of jurisdiction, 67.
order for, in case of bill by married woman, 117.
SEPARATE ACCOUNT, petition where fund carried to, 76 (re).
sep'arate estate,
of married woman, decree administering, 128.
order on further consideration, 129.
INDEX TO FORMS AND NOTES.
SERVICE,
indorsement of bill as to, where defendant abroad, 11 (,y).
as to, of notice of motion, S7<
of petition, 67.
of petition under Trustee Relief Act, 90.
aiSdavit of service of notice of motion, 102.
of personal service of bill or claim, 102.
at the dwelling house, 103.
of amended bill or claim, 103.
of delivery of interrogatories, 103.
of service on solicitor of defendant, 103.
of service of petition, 104.
of service of subpoena to hear judgment, 108.
of being served therewith, 109.
of service of decree, 110.
of subpoena for costs. 111.
order for, of bill, on defendant abroad, 117.
of notice of replication and subpoena to hear judgment on defendant
abroad, 119.
SETTLED ESTATES ACT, ^^/V.s .r^
form of petition under, 96.
practice as to, 96 (g).
certificate of examination of married woman, 151.
summons as to insertion of notice in newspapers, 169.
See also " Segalations."
SETTLEMENT,
bill by married woman and her children for, 18.
as to the doctrine of equity for a settlement, 19 (Ar, 1).
as to the property subject, 19 (i* 2).
when it attaches, 19 {k, 3).
as to amount to be settled, 19 (I, 4).
terms of settlement, 19 (i, 5).
charges and prayer in bill to rectify, 27.
form of affidavit of no settlement, 110.
petition in case of infant's marriage, 79.
as to settlement, 79 (r).
SETTLEMENTS' OF INFANTS ACT,
petition under, 80.
practice as to, 80 (s).
order under, 141.
order under and in causes, 142.
recital in settlement under, 191.
See also " Regulations,"
SHAREHOLDER,
in company, commencement of bill by, S.
as to parties to bill by, 5 («).
SHIP,
demurrer to bill respecting, 44.
as to ownership and registration of, 44 {x).
decree on bill by part owner of, 137.
SIMPLE CONTRACT CREDITOR,
bill by, 14.
costs of, in administration suit, by summons, 154.
INDEX TO FOBMS AND NOTES»
SOLICITOR,
authority to, from next friend, 2 (e), 3 (/).
certificate to be signed by, on filing bill, 9.
statement of confidential communications to, in answer, 52.
petition to change, 73.
petition to deliver bill of costs, 75.
to tax, 75, 76.
order to change solicitor, 123,
for taxation of bill of costs of, 124.
SPECIAL CASE,
form of, 14>5.
order on hearing of, 138.
practice as to, 138 (h),
SPECIAL EXAMINER,
as to application to appoint, 61 (m).
fee of, 61 (m).
summons to appoint, 161.
SPECIFIC PERFORMANCE,
of agreement, allegations and prayer in bill for, 28.
as to part performance of an agreement, 29.
claim of benefit of Statute of Frauds in answer to bill, 54.
decree in bill for, 132.
in case of agreement for sale of good nill of business, 133.
STATED ACCOUNT,
as to, 14 (i).
as to plea of, 47 (i).
STATEMENT, concise, form of, 145.
STATEMENTS, in bills, 23.
STATUTE OF FRAUDS,
as to, 47 (b).
claiming benefit of, 54.
STATUTE OF LIMITATIONS,
as to plea of, 47.
claim of benefit of, by answer, 54.
STAYING PROCEEDINGS. See " Proceedings."
STOCK. See •' Sak ;" " Trustee Act."
STOP ORDER,
as to obtaining, 78 (p).
summons for, 167.
affidavit in support of, 184.
SUBPOENA,
forms of, 153.
See also " Service.' '
SUBSTITUTE,
next friend, summons to, 167'
INDEX TO FOHMS AND NOTES.
SUBSTITUTED SERVICE,
as to, of subpoena for costs, 111 (*)■
summons for, of notice of decree, 163.
SUBSTITUTING, order for, of new assignee as plaintiff, 122.
SUMMONS,
applications at Chambers by, for payment of dividends carried to a separate
account, 77 (o).
for stop orders, 78 ( p).
applications by, under Trustee Relief Act, 90.
proceedings by, in Judge's Chambers, 154.
executor cannot be charged with wilful default in, 154.
no jurisdiction to set aside release, 154.
bow assets applied where deficiency, 154.
a party interested being abroad must have notice of order, 154.
as to staying proceedings against executor after order, 154.
SUMMONSES,
forms of,
originating summons for adrainistration of estate, 155.
for guardian and maintenance of infant, 155.
under the Charitable Trusts Act, 156.
indorsement on originating summons, where parties not served, 157.
to amend originating summons and duplicate, 157.
for leave to amend bill, 157.
for further time to answer, 158.
for leave to file voluntary answer, 158.
by plaintiff for further time to answer interrogatories, 158.
to enlarge time for closing evidence, 159.
for filing afiidavits on motion for decree, 159.
for leave to file exceptions to answer, 159.
for affidavit and production of documents, 160.
for production of documents at solicitor's office, 160.
to consider sufficiency of affidavit as to documents, 161.
for production of documents admitted by answer, 161.
for further consideration of matter and cause originating in Cham-
bers, 161.
to appoint special examiner, 161.
to proceed with accounts, &c. directed by decree, 162.
for witnesses, 162.
for order as to service of notice of decree on infant, 162.
for order to leave accounts, 163.
for leave to attend proceedings, 163.
for substituted service of notice of decree, 163.
for defendants to file examination, 163.
for leave to pay money into Court, 164.
to pay money to attorney of party, 1 64.
for delivery out of deeds and for payment of money into Court, 164.
for leave to bid at sale by auction, 165.
to open biddings, 165.
for leave to pay in purchase-money, 166.
to confirm sale by private contract, 1 66.
to discharge receiver and vacate recognizance, 166.
for stop order, 167.
for leave to apprentice infant, 167.
to substitute next friend, 167.
to proceed on petition adjourned to Chambers, 168.
by creditor for conduct of administration cause, 168.
INDEX TO FORMS AND NOTES.
SUMMONSES— continued.
to proceed with receiver's account, 168.
to pay money to representative of creditor, 168.
for leave to prove a debt after expiration of time for adjudicating, 169.
under Settled Estates Act, 169.
SUPPLEMENT, BILL OF. See "Revivor."
SUPPLEMENTAL BILL, by assignee of bankrupt, 34.
SUPPLEMENTAL ORDER, against provisional assignee, 123.
SUPPLEMENTAL STATEMENT, 38.
TAXATION OF BILL OF COSTS,
notice of motion to review, 65.
as to the taxation of co^, 65 («).
form of objections to, 147.
TRANSFER,
notice of motion to transfer stock into Court, 57.
petition for, of fund in Court, 76.
as to summons for, 77 (o).
petition for, of stock by Commissioners of National Debt, 78.
practice as to, 78 (j).
See also " Trustee Acf and "Trustee Reli^Act."
TRANSLATION, affidavit of correctness of, 106.
TRUSTEE,
general charge of defendant being, 7.
bill to charge, purchasing trust estate, 37.
as to form of decree against, 37 (»).
statement in answer of acquiescence by cestui que trust, S3,
cases as to, 53 (o).
See also " Trustee Act' and " Trustee Relief Act."
TRUSTEE ACT AND TRUSTEE EXTENSION ACT,
as to petitions and summonses under, 94.
how to be entitled, 94.
general form of prayer, 94.
who to apply, 212.
when applications to be made at Judge's Chambers, 212.
petition for appointment of new trustees, 95.
who should join in, 96 (/).
as to service of, 95 (/).
afiHdavit of fitness of new trustee, 116.
verifying his consent to act, 116.
meaning of term "lands," 211.
lunatic trustees and mortgagees, 211.
costs of obtaining reconveyance, in case of, 211.
committee of lunatic to be served, 211.
order operating as conveyance to be stamped, 212.
forms of orders under section 7, where infant trustees and mortgagees, 212.
section 7 only applies where legal estate in infant, 212 (c).
how order may be made, 213 (rf).
as to vesting order where land copyhold, 213 (d).
order where contingent right in infant, 213.
where trustee out of jurisdiction, 213.
INDEX TO FORMS AND NOTES.
TRUSTEE ACT AND TRUSTEE EXTENSION ACT— continued.
what case within the act, 213 (e).
where trustee jointly seised with another out of jurisdiction of the court,
214.
where trustee entitled to contingent right out of jurisdiction, or cannot be
found, 214.
where trustee jointly entitled to a contingent right, 214.
where uncertain which of several trustees survivor, 215.
where uncertain whether the last trustee living or dead, 215.
where trustee dies without an heir, 215.
where contingent right in unborn persons, 216.
in case of a mortgage after the death of a mortgagee, 216.
where 19th section applies, 217 (i).
order appointing person to convey in certain cases, 217.
cases to which 20th section applies, 217 (0-
where person trustee of stock with another trustee out of the jurisdiction,
218.
who a trustee under 22nd section, 218 (o).
where trustee refuses to transfer stock, 219.
jurisdiction as to past dividends, 219 (p).
where one of several trustees of stock refuses to transfer or receive divi-
dends, 219.
where stock standing in the name of a deceased person, 220.
introductory part, under section 28, as to copyhold lands, where vesting
order made, 220.
where parties to suits are, or unborn persons would be, trustees, 221.
where vesting order may be made, 221 (a).
introductory part of orders under sections from 31 to 36 inclusive, 221.
order appointing new trustees and vesting lands, choses in action and stock,
221, 222.
cases as to, 221 (x).
vesting right to call for transfer of stock in new trustees, 222.
under the 1st section of the Trustee Extension Act, 223.
cases to which 1st section applies, 223 (c).
where application to be made, 223 (c).
by whom, 223 (e).
another form under the 1st section, 224.
order under 2nd section vesting estate, on refusal to convey, 224.
order under 8th section appointing trustee in place of a felon, 224.
appointing new trustees on petition in p. 94 .. 225.
vesting estate of infant trustees in purchaser to uses to bar dower, 226.
where stock in the name of deceased trustee, appointing new trustees, 227.
TRUSTEE RELIEF ACT,
course to be pursued by trustee paying money into Court, 115, 116.
to what account the fund should be transferred, 116.
form of aflSdavit, 114.
what it should contain, 116.
who should join in affidavit, 116.
trustee discharged as to fund paid into Court, 116.
liable to costs, when, 90.
petitions under, 89.
how to be entitled, 89.
what should be stated in petition, 89, 90,
service of, 90.
costs of, 90.
in what cases application should be made at Judge's Chambers, 90.
form of petition under, 91,
form of order on petition, 141,
INDEX TO FORMS AND NOTES.
VENDITIONI EXPONAS, writ of, 153.
VESTING ORDER. See " Charitable Trusts Act" and " Trustee Act."
VOLUNTARY COVENANT, for payment of money sufficient to support
creditor's suit, 17 (/).
WARD OF COURT,
form of petition upon intended marriage of, 79.
the filing of a bill makes an infant ward of the Court, 79 (r).
as to jurisdiction of the Court over property of the ward, 79 (r).
as to settiement, 79 (r), 80.
WILFUL DEFAULT,
should be charged in bill, 36 (m).
prayer in bill, 36, 37.
directions in decree, 36 (m).
executor cannot be charged with, in suit instituted by summons, 154.
WITNESSES,
course to be pursued where they reside in the country, 62 (n).
evidence of, common to all parties, 62 (n).
notice of motion for leave to examine witnesses de bene esse, 61.
practice as to, 61 (2).
affidavit to obtain order for a commission, 108,
as to what affidavit should state, 108 (p).
chief clerk's summons for witnesses, 162.
order for witness to attend and be examined, 189.
it should be served personally, 189 (Jc).
WRITS, forms of, 153.
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WITH PRACTICAL NOTES AND OBSERVATIONS;
Including as well those Forms which are in ordinary use, and reguired by Soli
citors in,the conduct of a Cause, as also Precedents of Pleadings, JForms of Peti-
tions, Decrees and Orders in Suits, and under the Infants' Settlements' and Set-
tled Estates' Acts, the Trustee, Trustee Relief, and other Acts;
WITH REFERENCES TO DANIELL's CHANCERY PRACTICE,
IHIED EDITION, BY HEADIAM ; AND
an ^ppenliix.
Containing the Regulations of the Judges, of the 8th August, 1857.
Bt RICHAED S. TEIPP, Esq., Basrister-atLaw.
V
LONDON:
V. & E. STEVENS AND G. S. NOETON,
ilatD eooltselletg atiu ^utlisfiers,
26, BELL YARD, LINCOLN'S INN.
1858.,
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